HKSAR v. HUNG SHUN YICK

HCMA 25/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 25 OF 2002

(ON APPEAL FROM ESCC 3945/2001)

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J U D G M E N T

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1. The appellant, Hung Shun Yick, pleaded guilty to a charge of offering an advantage to a public servant contrary to section 4(1)(c) of the Prevention of Bribery Ordinance Cap.201 before Mr Bruce McNair, Permanent Magistrate, at Eastern Magistrates Court on 1 December 2001.

2. The facts are that the appellant offered a sum of $20,000 to an Acting Immigration Officer as a reward for that Immigration Officer helping him to secure a Hong Kong Identity Card. The Immigration Officer reported the matter to the ICAC and further approaches by the appellant were monitored. Two days after he made his initial offer he invited the Immigration Officer for a drink and on that occasion he reiterated his offer and agreed to make a deposit. That conversation was monitored.

3. The appellant is a mainland resident and he has a two-way permit permitting him to travel to Hong Kong.

4. The Magistrate adopted a starting point sentence of 2 years' imprisonment, reduced that by one-third to reflect the appellant's guilty plea and sentenced him to 16 months' imprisonment. The appellant now says the starting point adopted by the Magistrate was manifestly excessive.

5. The maximum penalty for an offence contrary to section 4 of the Prevention of Bribery Ordinance is a fine of $100,000 and imprisonment for 3 years on summary conviction.

6. Before me this morning, Mr Giles Surman, who appears for the appellant, accepts that an immediate sentence of imprisonment was inevitable for this offence, but contends that the sentence of 16 months is excessive in the circumstances of this case.

7. A number of cases were cited in Mr Surman's Notice of Appeal. To a very large extent I do not find the details of them of much use because, as I said in the course of argument, how a court dealt with a matter in 1988 or 1974 is not really of much use in determining how a court should deal with this particular offence in 2002.

8. However, I agree that the trend of those cases indicates that for a simple offence of this nature an effective sentence, after discount for a guilty plea, appears to be in the region of 12 months' imprisonment.

9. I am satisfied that the sentence of 16 months adopted by the Magistrate was high in the circumstances. I am therefore allowing the appeal to the extent that I reduce that sentence from 16 months to one of 12 months' imprisonment.