ATTORNEY GENERAL v. CHAN WAH TAT and Another

IN THE HIGH COURT

1994, No. 11
Application for Review

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. This is a majority judgment.

2. The facts have been fully outlined in the appeals against convictions.

3. This is an application for a Review of the sentences imposed by the learned magistrate.

4. D1 was convicted of two counts under s8 of the Prevention of Bribery Ordinance Cap. 201 of offering an advantage to a Crown servant and D2 was convicted of two counts of accepting an advantage contrary to s3 of the Ordinance. They both received the same punishment. They were both sentenced to four months' imprisonment on each charge to run concurrently and the sentences were suspended for 18 months. They were also fined $10,000 each.

5. The question which has to be determined is whether the sentences were wrong in principle and or manifestly inadequate.

6. Mr Zervos submitted that it had clearly been laid down by the Court of Appeal that unless there were exceptional circumstances an immediate custodial sentence should be imposed. There were no such circumstances in the present case.

7. The magistrate had also failed to take cognisance of the fact where there was more than one offence of a similar nature the sentence should be increased.

8. We generally accept the validity of both these submissions.

9. Mr Zervos also complained that the learned magistrate had failed to distinguish between s8 and s3 offences.

10. It is true that he did not specifically refer to this in the reasons he gave.

11. It is however also true to state that offences under both sections need not necessarily involve a corrupt element. In a case such as the present one the interests of justice might well be served by similar penalties being imposed under the two sections.

12. The mitigating factors were not compelling and the learned magistrate appears to have attached too much weight to them.

13. We consider that the learned magistrate was wrong in principle in suspending the sentence of imprisonment which he imposed.

14. We consider that an immediate custodial sentence of four months' imprisonment is the appropriate sentence for these offences and order that this period of imprisonment be substituted for the sentences which were imposed. The fines were inappropriate and should not have been imposed. These will be quashed.

15. We are also satisfied that the learned magistrate should have made an order pursuant to s12(2) of the Ordinance ordering D2 to repay the advantages he received. He is ordered to pay $35,000 to the Crown.