HKSAR v. SHUM HO WING

[English Translation — 英譯本]
HCMA 196/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 196 OF 2008

(ON APPEAL FROM TMCC NO. 3375 OF 2007)

___________

BETWEEN

___________

_________________________________

REASONS FOR JUDGMENT

_________________________________

1. The appellant was charged with one count of “offering an advantage to a prescribed officer”, contrary to sections 8(1) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 of the Laws of Hong Kong. The appellant pleaded not guilty to the charge. He was convicted after trial and was sentenced to 7 months’ imprisonment. He appealed against sentence. At the conclusion of the hearing, I allowed the appeal, set aside the sentence of 7 months’ imprisonment and imposed in its place a sentence of 5 months’ imprisonment. I now set out the reasons for my judgment.

Facts

2. The facts were that, in or around February 2006 and in Hong Kong, while having dealings with the Government of the Hong Kong SAR through the Highways Department, the appellant, without lawful authority or reasonable excuse, offered to a prescribed officer under the employ of the Highways Department (namely, Maintenance Works Supervisor Li Chiu-fung) an advantage, namely, services and/or favours in the form of free-of-charge construction of an asphalt ramp on a piece of land opposite No. 11 Ka Fuk Lane, Tuen Mun, New Territories.

3. At the time of the offence, the appellant was an employee of Dynamics Engineering Limited (“Dynamics”) which was a “sub-subcontractor” in respect of a maintenance contract awarded by the Highways Department. The Highways Department awarded the contract to a certain company, which subcontracted the works to one Man Wui Loi Engineering Company Limited (transliteration) (“Man Wui Loi”). Man Wui Loi then sub-subcontracted part of the works to Dynamics. Li Chin-fung was an employee of the Highways Department and, as such, responsible for overseeing the maintenance works subcontracted to Dynamics.

Reasons for sentence

4. The magistrate’s reasons for sentence are as follows:

19.       The appellant is aged 26, single. Upon completing Form 5, he furthered his studies in a Vocational Training School. He is now working as an agent for a construction site with an income of approximately $14,000. He resides with his parents and younger brother. His parents are working whereas his younger brother is studying. The total income of the family is in the region of $28,000.

20.       In the present case, the appellant said the cost of ‘laying’ the ramp was about $480, and hence he only offered an insignificant advantage to D1.

21.       The appellant was hardworking and held in high esteem by his superior and colleagues. He did not receive any gain in the present case. In the past, he had courageously saved a schoolboy from a traffic accident, in the course of which he sustained injuries. He had also served as a volunteer tutor for school children. It can therefore be seen that he is not evil by nature. He has urged me to impose a lenient sentence on him or consider a sentence other than an immediate custodial sentence.

22.       Having considered all the mitigating factors and authorities (such as Li Cheuk Ming [1999] 1 HKLRD 63 and HKSAR v Yuen Chi Ming, unreported, HCMA 56/2001), I am of the view that there are no exceptional circumstances in the present case which warrant a sentence in the form of a community service order, and that I have no alternative but to impose a custodial sentence. Although I feel sorrowful and sympathetic over what has happened to the appellant, the court does have a duty to eradicate the offence of unlawfully offering advantages in any public organization by passing deterrent sentences.

23.       As far as sentencing is concerned, having considered the authorities, I am of the view that the proper starting point should be 9 months’ imprisonment. The term can in my view be reduced by 2 months on account of the appellant’s good employment record, contribution to the community and record of having rescued another person. Accordingly, the appellant is sentenced to 7 months’ imprisonment in respect of the third charge.

Grounds of appeal

5. Mr. Fu, Counsel for the appellant, submitted that the starting point of 9 months adopted by the magistrate was manifestly excessive.

6. Mr. Fu’s written submission ran as follows:

The appellant’s case is that the starting point of 9 months’ imprisonment that the magistrate adopted in the present case is manifestly excessive. According to the appellant, the value of the whole free-of-charge project should be approximately $480, which, in the professional opinion of Kwok Yat-wah (transliteration) (director of Man Hui Loi Engineering Company Limited), is inclusive of wages and cost of materials. The value of the whole project is HK$150 (p. 447 of the Transcript).  The appellant did not receive any benefit from this incident. Nor did the company receive any benefit because the management of the company was unaware of such a request by Li Chiu-fung and the applicant did not report it to his superior, save that he had told his superior Leung Wai-leung (transliteration) that he would do some work for [Li] Chiu-fung.  Furthermore, in considering the sentence, the magistrate failed to assess carefully the appellant’s mindset and his own way of handling the matter behind such conduct. In this incident, the appellant did not set out to bribe Li Chiu-fung on purpose; rather, he acted in ignorance of the law and at the request of Li Chiu-fung. Moreover, Leung Wai-leung said the applicant was an obedient subordinate who would carry out whatever orders he received from his superior and would seldom refuse to do so. (See PW6 Leung Wai-leung’s testimony)

7. Mr. Fu cited various authorities in his written submission. However, in his subsequent oral submission, he placed particular reliance on the authorities of HKSAR v. Yuen Chi Ming, HCMA 56/2001 and The Queen v. Tong Hiu Ming & Another, HCMA 833/1986. Mr. Fu submitted that the circumstances of the offence committed by the appellant were less serious than those in the said two authorities and that the starting point of 9 months was excessive.

Respondent’s reply

8. Ms Chan, Senior Government Counsel for the respondent, accepted that the circumstances of the offence committed by the appellant were not as serious as those in Tong Hiu Ming. However, she submitted that the starting point of 9 months adopted by the magistrate was not manifestly excessive.

Discussion

9. The appellant was convicted after trial. At trial, the appellant stated that he was neither moonlighting by laying the asphalt ramp for Li Chiu-fung when he was on leave, nor laying the ramp for Li free of charge in his own spare time with materials provided by Li. His testimony was that the said ramp works were arranged between his superior and Li Chiu-fung and that he did not do the works for Li Chiu-fung in his personal capacity.

10. Having considered the evidence, the magistrate rejected the appellant’s version of events. As the appellant had withdrawn the appeal against conviction on his own initiative, I could only consider whether the sentence was excessive in light of the facts found by the magistrate rather than on the basis, as suggested by Mr. Fu, that the appellant was merely “working for his superior”.

11. Li Chiu-fung was an employee of the Highways Department rather than a “superior” of the appellant. The appellant’s act of offering an advantage to Li Chiu-fung could not possibly be unintended. There must have been a reason behind the appellant’s act — it was just that he was not candid with the court about it.

12. In the present case, there was no evidence that the appellant laid the ramp for Li Chiu-fung upon receiving any money, or that the appellant had received any substantive benefit.  As a matter of fact, however, were Li Chiu-fung not an officer of the Highways Department overseeing the relevant maintenance works, it is difficult to see why the appellant would have utilized the resources of his company (i.e. Dynamics) to carry out the ramp-laying works for Li Chiu-fung.

13. Generally speaking, when a worker lays a ramp for someone, quite apart from the worker’s wages, the cost of any material supplied will also be computed and included in the bill. Even if the work is completed within one day, it will have to be regarded as “one day’s work”. I was indeed surprised at the remarks of the director of Man Wui Loi that the cost of the ramp works in question was $150 inclusive of wages and cost of materials. I also found it difficult to believe the appellant’s claim that the cost of the works was approximately $480. Nevertheless, no matter what the actual cost of the ramp works was, it should not be a significant sum. I would proceed on the basis that the advantage offered by the appellant was unsubstantial.

14. It is a serious offence to “offer an advantage to a prescribed officer”. Bribery is a malignant tumour which corrodes our society, and the court has to impose on offenders severe sentences which serve as a deterrence. Therefore, in the absence of exceptional circumstances, an immediate custodial sentence is inevitable (see Lai Yuk Kui v. R [1981] HKLR 691, Secretary for Justice v. Li Cheuk Ming [1999] 1 HKLRD 63, and the above-cited case of Yuen Chi Ming).

15. Mr. Fu conceded that, in respect of the appellant, there were no exceptional circumstances which warranted a consideration of a sentence other than an immediate custodial sentence. The question was whether the starting point of 9 months adopted by the magistrate was excessive.

16. Both Li Cheuk Ming and Lai Yuk Kui involved offences under section 4 of the Prevention of Bribery Ordinance, namely bribery of public officers. The present case involved offences under section 8, namely bribery of public officers by persons having dealings with public bodies. In other words, the fact remains that “prescribed officers” are public officers. In Tong Hiu Ming, Bewley J held that a distinction should be drawn between section 4 and section 8 in that the offence under section 8 was less objectionable than that under section 4. As Pang J pointed out in Yuen Chi Ming, although there must be some truth in Bewley J’s remarks, he (Pang J) still had to take into account the facts of the particular case before him.

17. In Yuen Chi Ming, which involved section 8, the facts were that a suspect involved in illegal bookmaking offered a so-called “loan” of $50,000 to the investigating police officer.  Pang J took the view that the starting point of 9 months was appropriate.

18. Viewed as a whole, the circumstances of the offence committed by the appellant were indeed not as serious as those in Yuen Chi Ming.

19. Having considered all the circumstances, I am of the view that the appropriate starting point should be 6 months.

20. The appellant, who was convicted after trial, was of course not entitled to the usual discount in sentence which followed a guilty plea. The magistrate had given the appellant a 2-month discount on account of his clear record and courageous deed of rescuing another person.  However, as I considered the appropriate starting point to be 6 months, giving the appellant a 2-month discount would be tantamount to giving him the usual one-third discount for a guilty plea, which would neither conform to principle nor stand to reason. In my view, it would be sufficient and appropriate to give him a discount of one month.

21. For the above reasons, I have set aside the sentence of 7 months’ imprisonment and imposed in its place a sentence of 5 months’ imprisonment.