THE QUEEN v. CHAN WING LEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 29 OF 1987

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JUDGMENT

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1. The appellant, a police sergeant in the Royal Hong Kong Police Force was found guilty of 10 charges of accepting an advantage contrary to Section 3 of the Prevention of Bribery Ordinance, Cap. 201.

2. He has abandoned his appeal against conviction but has proceeded with his appeal against sentence. For those offences he was sentenced to 3 months' imprisonment on each charge, those terms being ordered to run concurrently. He was, I am informed, detained in custody for 2 weeks or thereabout after which time he has been on bail pending appeal. The magistrate very carefully sifted all the facts and gave a number of well reasoned arguments why he felt that the appellant should be sentenced to a term of imprisonment. He added at the conclusion of his reasons, "The appellant was a mature man in a position of public responsibility who had deliberately, over a period of months, acted contrary to a fundamental law regulating the conduct of Crown Servants. I saw no reason to suspend the sentence".

3. There is no general principle that persons found guilty of Section 3 offences should be sent to prison in the normal course of events. In fact, in the case of Lai Yuk-kui v. R. [1981] H.K.L.R. 691, the Chief Justice at p. 694 was very careful to point out that the Court expressed no view as to the appropriate sentences for offences against Section 3 because the degree of criminal culpability was very much a matter at large. There is, as he said, a far wider range of moral culpability involved in the commission of Section 3 offences.

4. The facts of this case showed that the appellant, a sergeant in the Royal Hong Kong Police Force, borrowed money from junior colleagues always undertaking to repay it but placing them in the invidious position that they felt they had to lend money to the appellant because he was a sergeant. Over a period of about one year from the middle of April 1985, .he received no fewer than ten advances, obtaining in all, a total sum of $57,000 by way of loans. He in fact approached four other junior police officers and it is fair to say that of the money which he borrowed only $28,900 remains outstanding. His downfall is attributed to gambling.

5. This is not a case where one can say that there is any whiff of corruption. In fact one can say that corruption is totally absent from this case. Also this case is unlike others where money is borrowed from various organisations or shady persons who operate on the fringe of the criminal law. The magistrate thought that by reason of the appellant borrowing money from brother officers, it might, in some way, potentially corrupt them. I do not share that view.

6. From all the cases to which this Court has been referred in this appeal plus the information I have received from both counsel for the defence and counsel for the prosecution no one person has yet received an immediate custodial sentence for an offence committed contrary to Section 3. I see no reason why on the facts of this case I should be the first to depart from that sentencing standard. For these reasons I am fully satisfied that the sentence imposed against this appellant should be suspended. It still remains a sentence of imprisonment and no doubt will lead to his dismissal from the Police Force. He himself must have realised that as a highly probable consequence when he engaged in applying for loans of this kind. Accordingly, this appeal against sentence is allowed to the extent that the order of imprisonment will be suspended for a period of twelve months. The sentences, of course, will continue to remain concurrent sentences.