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DCCC 486/2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 486 OF 2013
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HKSAR |
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v |
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Leung Yau-wing, Victor |
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| Date: |
17 December 2013 at 10.03 am |
| Present: |
Mr Jonathan P H Lin, SPP of the Department of Justice, for HKSAR |
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Mr Solomon Chong, of Solomon C Chong & Co, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
(1) Agent soliciting an advantage(代理人索取利益) |
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(2) Failing to surrender to custody (沒有按照法庭的指定歸押) |
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Reasons for Sentence
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1. The defendant pleaded guilty to two charges. The 1st charge was a charge of an agent soliciting an advantage, contrary to section 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap 201.
2. The facts admitted by the defendant disclose that the Transport Department, (TD) Hong Kong Special Administrative Region had outsourced the management of the Lion Rock Tunnel and Kai Tak Tunnel (the Tunnels) to Serco Group (HK) Limited (Serco). The management contract was due to expire on 31 July 2012. Near the expiry of the term of the management contract, TD invited tenders for the new contract for management, operation and maintenance of Kai Tak Tunnel and the Lion Rock Tunnel (the contract). Serco and Greater Lucky (HK) Company Limited (Greater Lucky) had tendered for the contract.
3. Greater Lucky was a subsidiary of Yue Xiu International Development Limited (Yue Xiu). The defendant was a transport affairs director of Yue Xiu. He was assigned to act for Greater Lucky relating to the tendering and other matters of the contract.
4. TD then awarded the contract to Greater Lucky at the price of HK$406 million. TD and Greater Lucky had agreed to sign the contract on 17 July 2012. If Greater Lucky failed to sign the contract on time, TD might award the contract to Serco. In the meantime, the executive director of Serco, Kwok Mun Keong, started liaising with the defendant for the handover of the management of the tunnels.
5. On 10 July 2012, the defendant asked to meet Kwok for some private matters. They then met at a café at a hotel in Causeway Bay. During the meeting, the defendant asked whether Serco was interested in getting back the contract. The defendant said that he was not in good terms with the management of Greater Lucky. The defendant said that he had some financial data of Greater Lucky relating to the contract. He said that the data showed that Greater Lucky would lose several $10 million. The defendant said that he could do something to cause Greater Lucky to delay signing of the contract.
6. Kwok then asked what the defendant wanted in return. The defendant said that if he caused Greater Lucky to give up the contract, he could no longer work for them, and he asked for 1.5 per cent of the contract price for helping Greater Lucky to give up or delay the signing of the contract.
7. That day, Kwok reported the matter to Serco. On the following days, on 11 and 12 July, there were several mobile phone short messages between Kwok and the defendant. The short messages received by Kwok were sent from a telephone number subscribed by his son. Kwok finally replied by a short message that they were unable to proceed with the defendant’s proposed arrangement and offer.
8. Greater Lucky later signed the contract on 17 July which was within the contractual time. Its general manager had confirmed that the company did not allow the defendant to solicit advantages in relation to its affairs.
9. On 9 November 2012, officers of the Independent Commission Against Corruption interviewed the defendant under caution. The defendant admitted having met Kwok at the hotel and later sent several short messages to him. He understood that Greater Lucky did not allow him to solicit advantages in relation to its affairs.
10. In relation to the failure to surrender to custody, the defendant was granted bail on condition that he would appear before the District Court on 12 August 2013 for trial. He failed to appear on that day and a warrant of arrest was thus issued. The defendant was subsequently re-arrested on 21 October 2013.
11. In mitigation, I was told that the defendant has a clear record. He is now aged 66 and has a grown-up family who have all migrated to Australia. He had hoped to join them to live there in due course but is concerned this conviction will deny him that opportunity.
12. The defendant was educated to tertiary standard. He obtained a Bachelor of Arts at Hong Kong University in 2001 and is currently preparing a thesis to obtain a PhD at the University of Melbourne in Australia. He holds several professional qualifications related to transport and tunnels and is a council member of the Chartered Institute of Transport in Hong Kong. Over the years, he has been actively involved in a number of charitable and sporting organisations.
13. The defendant has held a number of senior management positions with large organisations in Hong Kong and has worked for the victim company since 2006. The defendant said that he failed to answer bail after failing to raise finance for his legal representation. He said that he panicked. He said that whilst on the mainland, he developed hypertension and contacted the ICAC to inform them of the date and time that he would return to Hong Kong and he arranged to surrender to them.
14. I was told by defence counsel that with regard to the 1st charge, the defendant claims not to be in possession of or having access to any of the company’s financial data and could not have forced the contract with his company to fail. Defence counsel said that whatever the defendant told Kwok, it had no chance of success. I was told that the defendant was having difficulties with the new managers of his company who reduced his monthly salary from HK$120,000 to $56,000.
Sentencing Considerations
15. In the case of the Secretary for Justice v Kwan Chi Cheong & Others [2009] 4 HKLRD 273, the Court of Appeal stated that the Prevention of Bribery Ordinance provides the sanctions necessary to deal with bribery offences. The ordinance was intended to be draconian in its effect. A bribery, whether in its acceptance or by the offering of the advantage, is an evil which can strike at the heart of commercial and public life if it is left unchecked. A punishment that fails to deter will produce all the wrong signals just as sentences which act as deterrent will reinforce the community’s efforts to rid itself of corruption.
16. The courts have made it clear that save where wholly exceptional circumstances exist, an immediate custodial sentence will be called for. In my view, no such circumstances exist in the present case.
17. I was told in mitigation that the defendant did not have access to the financial data which he claimed to have nor would it have been possible for him to effect the delaying of the contract. It was part of the admitted Summary of Facts that the defendant at the private meeting he had arranged with Kwok on 10 July 2012 did ask Kwok if Kwok’s company was interested in getting back the $406 million contract with TD. He claimed that the data he could get would show that Greater Lucky would lose several million dollars. The defendant told Kwok he was not on good terms with Greater Lucky and when asked what he wanted in return, the defendant said he could no longer work for Greater Lucky, wanted 1.5 per cent of the contract price which would be just over $6 million for assisting in Greater Lucky giving up or delaying the signing of the contract.
18. This meeting was followed with mobile phone short messages between the defendant and Kwok sent from the telephone number subscribed by the defendant’s son. Finally, Kwok told the defendant they were unable to proceed with the defendant’s offer.
19. It seems clear that this solicitation was not made casually on the spur of the moment. The defendant mentioned a percentage at the meeting. The private meeting was followed by mobile phone short message exchanges on 11 and 12 July. The defendant is a person who has worked in the industry in very senior positions. His professional qualifications include membership of the fellowship of the Institute of Directors in Hong Kong.
20. This was not only a solicitation of a very large sum of money, it involved a significant breach of trust in that it related to his company standing to lose a very substantial contract. Kwok reported the solicitation to his employers on the day of the meeting with the defendant. The matter was reported to the ICAC some three days later.
21. I accept that no money changed hands and the matter was promptly brought to the attention of the authorities. I have taken into account all the matters urged in mitigation, including the defendant’s age, his significant fall from grace and the unlikelihood that he would be able to join his family in Australia. In my view, a starting point of 4 years and 6 months is appropriate and the defendant is entitled to a discount of one-third to reflect his timely plea.
22. With regard to his failure to answer bail, I take into account his voluntary return to Hong Kong after contact was made with the ICAC. I impose a consecutive sentence of 1 month’s imprisonment. The defendant will therefore go to prison for 3 years and 1 month.
Please refer to CACC444/2013 for the relevant appeal(s) to the Court of Appeal. |