HKSAR v. CHO WING NIN AND OTHERS

DCCC360/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.360 OF 2011

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Reasons for Sentence

1.  D1 and D2 are convicted after trial of charge 1, conspiracy to pervert the course of public justice, and charge 2, misconduct in a public office. D3 is convicted after trial of charge 2 only.

2.  The facts of the case are dealt with in details in the Reasons for Verdict and I give only a brief background here.

3.  The defendants were at the material times ICAC officers. They had various meetings with a witness. During those meetings, they did what can be collectively and generally referred to as coaching the witness. I found that what D1 and D2 did amounted to both acts tending to pervert the course of public justice and misconduct in a public office, and what D3 did amounted to misconduct in public office.

4.  All 3 defendants are of clear record. D1 was the Chief Investigator, D2 Senior Investigator and D3 Assistant Investigator of the ICAC at the time of the commission of the offences.

5.  I have received a number of letters, more from D2 and D3, written by the defendants’ family members and friends, testifying to the good character of the defendants. I accept what they say in the letters as accurate reflections of their characters.

Cases

6.  There are no sentencing tariffs in relation to either of the 2 offences.

7.  I was referred to various cases where a range of sentences had been passed in relation to the offences.

Perverting the course of public justice

AG v Yeung Sau Shing [1981] HKC 129

8.  This was an application by the Attorney General for review of sentence. The respondent’s friend was facing a potential charge of assault. The respondent approached and offered money to the victim asking him not to testify against his friend. At the magistracy, the respondent was sentenced to 2 months’ imprisonment suspended for a period of 12 months. Upon review, the sentence was set aside and replaced by a sentence of 9 months’ imprisonment. The court further found that there were no unusual circumstances to justify the suspension of that term.

9.  It must be noted that in deciding on the replacement sentence, the Court of Appeal said the following,

“We…all agreed that the sentence imposed by the learned magistrate was so inadequate that it does give rise to feeling of shock and outrage….We are…not agreed as to what would have been a proper sentence at first instance. The lowest view is one of 12 months’ imprisonment, although the majority of us would have put it considerably higher.”

HKSAR v Chan Yat Chuen, CACC 472/2006

10.  In this case, the appellant Police officer was alleged to have pressurized a prosecution witness to give evidence to incriminate others. The appeal was allowed on the basis that the prosecution had failed to sufficiently prove, and the judge had failed to consider whether it had been properly established, that the applicant intended to pervert the course of justice.

11.  The sentence was originally that of 18 months’ imprisonment. This sentence was not being appealed and the appropriateness of the sentence was never considered by the Court of Appeal.

Secretary for Justice v Wong Chi Wai, CAAR 6/2010

12.  This is the case where a barrister was convicted of attempting to pervert the course of justice by sending letters to a prosecution witness, who was a solicitor, trying to persuade her not to give evidence against his client. The barrister was sentenced to 6 months’ imprisonment by HH Judge Tallentire. This sentence was upheld upon review by the Secretary for Justice.

13.  The learned trial judge considered the following mitigating features which was cited with approval by the Court of Appeal: that Wong vigorously pursued the interests of his clients although in that case that pursuit did not stay within permissible bounds; that the attempt in that case had, in the event, failed; and that the presentation of the defence in Wong’s trial had been responsible and helpful to the court in that extensive admissions of facts were made and Wong had not attempted to shift responsibility for the drafting of the letters to someone else, for example, to his instructing solicitor, Further, Wong had no personal interest in the outcome of the case, save a professional one and there were none of the serious features of other cases to which Wong’s counsel had referred. The learned trial judge noted the inevitability of professional disciplinary proceedings and he assumed the likelihood of Wong losing his career. No deterrent sentence was warranted as Wong was a person of previous good character and the type of conduct which had resulted in his conviction was not widespread within the profession. The judge placed that conduct “not at the bottom scale of criminality but certainly towards the bottom.” He found no ground to suspend the sentence and imposed, as we say, a sentence of six months imprisonment.

Misconduct in Public Office

Chan Tak Ming v HKSAR, FACC 5/2010

14.  The appellant doctor obtained personal data of patients whilst still in the employ of the Hospital Authority. He sent out letters which amounted to commercial touting to those patients. He was found guilty of misconduct in public office by Mr. D. I. Thomas, Magistrate and fined $50,000. The appellant’s conviction was upheld on appeal to the Court of Final Appeal. The facts are entirely different to our present case and is not helpful to the consideration of sentence.

HKSAR v Chung Sim Ying Tracy, HCMA 267/2001

15.  The Court was sympathetic with the appellant on appeal based on several factors. The first one was that, at the time of the commission of the offence, the offence of misconduct in public office had rarely been brought in Hong Kong. Secondly, had the appellant disclosed her relationship with the 2 companies bidding for a building contract been disclosed, there was no reason why those same companies could not have still bid for and be awarded those contracts. Thirdly, although the tendering process was corrupt, there was no complaint about the work done by the 2 companies. Fourthly, the amount involved was relatively small and the actual loss to the Institute that engaged the work of the 2 companies as a result of the appellant’s misconduct appeared to be ‘relatively negligible’. Fifthly, the appellant was the mother of a 3 year old boy.

16.  The Court then considered that the situation in that case was comparable to cases of civil servants making false claims for housing benefits, noting that the defendants in all those cases had been dealt with by way of suspended sentences or Community Service Orders. As a result, the appellant’s sentence of 7 months’ imprisonment was ordered to be suspended for 18 months.

17.  Again, the facts of Chung Sim Ying Tracy are entirely different to our present case and the factors considered by the learned High Court Judge when dealing with the appeal are equally inapplicable.

HKSAR v Tsang Yip Fat Richard, HCMA 1125/2002

18.  The appellant was a Principal Programme Officer with RTHK, a department of the HKSAR. In order to get around a wage freeze that was in place for employees, the appellant, with the full knowledge of his immediate superior (who was not charged) arranged for a 5% increase of salary to 2 employees by way of paying the money to their named relatives through a separate account, as though the relatives were freelance part-time workers for RTHK. The Appellant was convicted after trial and sentence to 4 months’ imprisonment, suspended for a period of 2 years.

19.  The facts are entirely different and far less serious than our present case.

HKSAR v Wong Shing Yim & Others [2003] 3 HKLRD 1046

20.  Mr. Wong for D3 referred to the sentences of the 19 defendants who were charged with conspiring to pervert the course of justice which was mentioned at p.1049 of the appeal judgment. Mr. Wong did not refer me to the actual reasons behind those sentences. Mr. Wong then referred to paragraph 5 at p.1050 and say that the sentence for those 19 on that charge is relevant because there was an alternative charge of conspiring to commit misconduct in public office, which the learned Deputy Judge indicated that he would have found proved as well.

21.  Mr. Wong appears to be relying on this case to show that if a suspended sentence is appropriate in relation to the perverting of justice charge, the same would have been proper for the misconduct charge.

HKSAR v Wong Kwong Shun Paul, CACC 390/2007

22.  In this case, the Appellant was a landscape architect of the Housing Department. He made recommendations to the housing project team recommending using EPOX products supplied by a company. The appellant failed to disclose his close relationship with one of the directors of that supplier company. The appellant was convicted after trial and sentenced to 100 hours of Community Service. The appeal was only against conviction.

“40. In order that Hong Kong can continue to be a corruption free, fair and just community, any public officer in the execution of his public duties must not only be impartial and avoid doing anything in conflict with his personal interests, but must also ensure that his conduct will not lead to any reasonable criticism, cause any suspicion or bring his office into disrepute. Otherwise, the public will lose confidence in public administration and social stability and harmony will be perturbed. In performing his public duties, a public officer must never harbour any selfish motive and must not intentionally benefit himself or his friends or relatives in any way, for instance, by providing any assistance to them so that they would enjoy an unfair advantage. Any conduct of a public officer which contravenes the above principles is serious misconduct.”

HKSAR v Chow Koon Shing, HCMA 51/2007

23.  This is a case of a senior Police constable taking a photograph under the skirt of a female who was at a magistrates’ court to reclaim her bail money. He was sentenced to 6 months’ imprisonment.

24.  The learned Magistrate considered that to ensure public confidence in law enforcement officers was maintained, the courts must take a serious view of Police officers who abused their positions. Although there was evidence of the Police constable’s good character, the Court considered that it was neither surprising nor of much mitigatory weight since the appellant was a Police officer.

  “27. The effects of the appellant’s misbehavior are two-fold. First, there is an abuse of trust vis-à-vis the victim. Secondly, his behaviour bring the Police force into disrepute, and to the extent that the offence was carried out in the magistracy building, could affect also the public perception of the judicial system.”

  “28. An offence of misconduct in public office demands a different perspective and a sentencing range which ensures that perpetrators of such offences are punished in a manner that the public understands and expects. Such sentences should also serve as a warning to others who are tempted to misconduct themselves in a similar fashion.”

HKSAR v Cheng Chun Wai, HCMA 724/2006

25.  The appellant leaked examination questions to 2 persons who were to sit in an examination that if passed would qualify them to submit tenders for contracts from the Fire Services Department for work relating to the maintenance of fire extinguishers in buildings in Hong Kong.

26.  The sentence of 15 month’s imprisonment was quashed on appeal and the appellant ordered to be released immediately. By that time he had served 7 months of his term of sentence. The reason given by the learned High Court judge was that the magistrate had neglected to consider that the offence of misconduct in public office was an old common law offence and rarely brought in the courts in Hong Kong, that there was a retrial after his appeal against conviction was successful and that there was no evidence that the appellant had gained any advantage, monetary or otherwise.

Shum Kwok Sher v HKSAR [2002] 3 HKC

27.  Shum was a former chief property manager with the Government Property Agency. He misconducted himself by wrongfully causing companies which were controlled by the brothers of the appellant’s sister-in-law through directorships and shareholding to be awarded management contracts for various government services.

28.  The appellant was sentenced at first instance to concurrent terms of 9 months’ imprisonment. The Court of Appeal dismissed his appeal against sentence and upon the application for review of the sentence increased the sentence to that of concurrent terms of 30 months’ imprisonment.

HKSAR v Wong Lin Kay [2011] HKCU 235

29.  The appellant was employed as a driver by the Department of Agriculture and Fisheries. He concealed his conviction for driving under the influence of alcohol from his employer and continued to perform his duties whilst being disqualified from driving. His situation was later discovered and the appellant was charged with, among other charges, misconduct in a public office. He was convicted after trial and sentenced to 15 months’ imprisonment on the misconduct charge. The appellant appealed against this conviction and the appeal was allowed.

Sin Kam Wah and another v HKSAR, FACC 14 of 2004

30.  The Appellant was a senior Police officer who received free prostitution services from others. The initial sentence of 3 years’ imprisonment was reduced on appeal to the Court of Appeal to that of 2 years’ imprisonment on each of the 3 misconduct charges.

Sentence

31.  The ICAC is perhaps the most potent weapon Hong Kong possesses against corruption. That is why great and sometimes even draconian powers are conferred upon this institution and its officers. The exercise of those powers must be done with the utmost of integrity and any abuse of that power must be punished. It is of paramount importance that public confidence in this cornerstone institution be maintained in order for Hong Kong to continue to remain a relatively corruption free society.

32.  What the defendants did is inexcusable. If they had adhered to the internal guidelines of the ICAC, whatever trap that Cheung Ching Ho might have set for them would not have worked. If they had maintained their integrity, they would not have succumbed to the temptation of crossing the line from merely refreshing the witness’ memory to coaching him.

33.  The defendants are all of previously good character. They are well respected and loved by their family, friends and colleagues. They did not have any direct financial gain from the commission of the offences, although a conviction secured would no doubt reflect well on their resume. They will likely lose their job and careers and their family will suffer as a result.

Charge 1

34.  I find that in relation to charge 1, bearing in mind the circumstances of the case, a starting point of 2 and a half years’ imprisonment is appropriate.

35.  D1 and D2 is each sentenced to 30 months’ imprisonment on charge 1.

Charge 2

36.  I find that in relation to charge 2, for D1 and D2, the appropriate starting point is that of 2 years’ imprisonment.

37.  In relation to D3, I find that of the particulars set out in charge 2, only one was found proved against D3. His involvement in the coaching of CCH appears to be less than D1 and D2. I find that an appropriate starting point is that of 18 months’ imprisonment.

38.  I will order that the respective sentences of D1 and D2 in relation to both charges 1 and 2 to be served concurrently.

39.  I find that there are no exceptional circumstances to call for the sentences to be suspended.