HKSAR v. KWOK YING KIT

HCMA341/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 341 OF 2007

(ON APPEAL FROM TWCC 3328 OF 2006)

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J U D G M E N T

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1.    This is an appeal by the appellant against the sentence of nine months’ imprisonment imposed upon him by Mr Don So at Tsuen Wan Magistrates Court on 9 March 2007 after trial of one charge of offering an advantage to an agent, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201.

2.    The prosecution case was that the appellant had made a total of 13 deposits, totalling $26,000 into the HSBC bank account of a Mr Chan Yip Man who was an employee of Mid-Stream Holdings (Hong Kong) Limited (“Mid-Stream”) between 24 April 2003 and 23 August 2004 “as an inducement to or reward for or otherwise on account of the said Chan Yip Man doing or having done an act in relation to his principal’s affairs and/or business, namely, contracting and allocating cargo handling jobs to (the appellant) and offering assistance to (the appellant) in relation to matters concerning the cargo handling jobs”.

3.    One of the core businesses of Mid-Stream was running port services relating to the loading and unloading of containers.  Mid-Stream engaged subcontractors to operate a fleet of barges to undertake this container cargo handling work.  The joint venture with a barge subcontractor was operated on a contract basis renewable annually by Mid-Stream subject to satisfactory performance by the subcontractor.  The subcontractors were paid on a monthly basis depending on the size of their allotted barge.

4.    Chan Yip Man, the man to whom the money was paid by the appellant, was employed by Mid-Stream as its barge operations manager.  He was responsible, inter alia, for allocating job orders and monitoring the performance of the barge subcontractors.  Although Chan did not himself have the power to determine the annual renewal of contracts with subcontractors he was in a position to make recommendations to those who made such a decision.

5.    During the relevant period the appellant and his girlfriend owned all the shares of a company known as Poly Billion Investment Limited which was a barge subcontractor of Mid-Stream.  Like other barge subcontractors the appellant, through the medium of Poly Billion, carried out container handling work under the supervision of Chan Yip Man or his deputies.

6.    The appellant admitted that he had made the total of 13 deposits, each of $2,000, into Chan Yip Man’s bank account with HSBC between April 2003 and August 2004.

7.    The magistrate was satisfied that the purpose of the appellant in making the monthly payments to Chan Yip Man was to make Chan show favour towards him and his company in his work.  In particular he was satisfied that the payment of the money was to make sure that Chan would support him and make favourable remarks in regard to the annual renewal of his contract and that the payments were intended to affect the daily work of Chan in allocating cargo handling jobs and, if necessary, making the appellant’s life easier by offering assistance to him in matters relating to work.

Sentence

8.    In so far as the sentences are concerned, the magistrate took into account the considerable mitigating circumstances.  The appellant is a man of 38 with a clear record.  He has a five-year-old child for whom he had sole care after his wife left him.  He has been in this industry since his schooldays.  There had been a long history of such payments in the industry.  The appellant did not instigate the offence.  He was asked to pay and did so.  Chan himself has never been prosecuted for receiving the rewards.

9.    The appellant originally appealed against conviction but abandoned that part of the appeal prior to the hearing.  He now only appeals against his sentence.

10.    Although he was represented by counsel at the trial he is unrepresented before this court.  He says the sentence was too severe.  He has written a letter to the court in which he says he now regrets his actions.  He alleges that this was a practice that had existed in the trade in the past and he simply wanted to earn a living. 

11.    His submissions fall into two categories :

(1)  his personal circumstances; and

(2)  the disparity between his sentence and the sentences imposed on other barge owners who offered rewards to Chan Yip Man.

12.    In so far as his personal circumstances are concerned, he says his five-year-old son for whom he is now responsible originally lived with his parents in a flat in Kornhill Gardens after he separated from his wife, but he later rented a flat in Tseung Kwan O so that his son could be cared for by his girlfriend.  At the time of his imprisonment he entrusted his girlfriend with his bank account containing savings and shares worth about $100,000 to be used for the monthly rent of the Tseung Kwan O flat, the mortgage on his parents’ Kornhill Gardens flat and his son’s living expenses.  He says he has learned that his girlfriend has withdrawn all his money and shares, but has not been paying the rent on the Tseung Kwan O flat or his parents’ mortgage.  She no longer visits him.  He has reported the matter to the police.  He is unsure who is now looking after his son. 

13.    In so far as disparity is concerned, the appellant says that two other persons sentenced to similar offences received sentences of two months’ imprisonment after plea. 

14.    Mr Daryanani who appears for the respondent has helpfully made enquiries into those other two cases.  They concerned two other barge operators who offered rewards to Chan Yip Man in similar circumstances to the appellant. 

15.    One such operator, Jackson Davis (TWCC3221/2006), had offered a total sum of $8,000 over a period of 10 months.  The magistrate adopted a starting point of three months’ imprisonment and discounted that sentence by one-third to reflect the defendant’s plea. 

16.    A second barge operator, Leung Yiu Tong (TWCC3220/2006), had offered $46,000 over a period of four years and nine months.  The magistrate adopted a starting point of six months’ imprisonment which he discounted by one-third to reflect the defendant’s plea and a further two months to reflect the defendant’s frankness in his interviews with the ICAC. 

17.    Both these sentences were passed subsequent to the sentences passed on the appellant. 

18.    Mr Daryanani has informed the court that due to insufficient evidence it was not possible to charge Chan Yip Man with an offence of accepting the rewards.  He has also informed the court that the prosecution had considered whether to consolidate the cases of the appellant and the other defendants but had decided against doing so on legal grounds, which included the fact that Chan Yip Man had not been charged.  If it had been possible to consolidate the cases and they had been heard by the same magistrate then the apparent disparity is unlikely to have arisen. 

19.    It is a well established principle that in the absence of most exceptional circumstances it is not proper for a court to consider a disparity submission which involves bringing in subsequent sentences passed on other accused by a different judge in another court : see R. v. Lam Mo Kwong, CACC175/1992.

20.    The facts in the case of Jackson Davis (TWCC3221/2006) were sufficiently different both in terms of the reward offered and the time over which the offence occurred to justify a different sentence.  Leung Yiu Tong (TWCC3220/2006) appears to have benefited from very lenient treatment at the hands of the magistrate.  The case of Secretary for Justice v. Kwan Chi Cheong & Others, CAAR1/1999 would suggest that a starting point of at least nine months was warranted in his case.  He also may have benefited from some double discounting from the starting point adopted by the magistrate.

21.    This court should not reduce a proper sentence imposed on this appellant so as to avoid disparity with what appears to be an unduly lenient sentence imposed on another defendant.

22.    The magistrate rightly took the view that corruption offences so undermine our society that a deterrent sentence was necessary.  He was right in my view for that reason to rule out a community service order.  This is not a case where there were exceptional circumstances.  A suspended sentence was not appropriate.  A sentence of immediate imprisonment was inevitable. 

23.    I have some sympathy for the magistrate for settling upon nine months as an appropriate starting point in this case.  It was the sentence that the Court of Appeal had said was warranted on the facts of the case in Secretary for Justice v. Kwan Chi Cheong & Others, CAAR1/1999.  That was also a case where the acceptor of the rewards had solicited them and the offerors were dependent on him for their livelihood.  That was however a case where the amounts of money offered were greater than in the current case, and the offering of rewards had gone on over several years. 

24.    In my view a starting point of six months’ imprisonment on the facts of this case would have been sufficient to meet the need for deterrence. 

25.    I consider that there are now circumstances of personal mitigation which warrant a further reduction from that starting point.  His wife had left him with responsibility for their five-year-old son.  His girlfriend has apparently failed to pay the rent on the flat where she was to look after his son.  She no longer visits the appellant and he has made a report to the police.  He is worried as to who is now caring for his son, although it may well be that it is his former mother-in-law.  He does not know and is naturally worried.  I consider a discount of one month is warranted in the circumstances.

26.    I allow the appeal against sentence and substitute a sentence of five months’ imprisonment.