THE QUEEN v. HELEN YEUNG MEI

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REASONS FOR JUDGMENT

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Power, J.A.:

1. The applicant faced two charges of conspriacy to offer advantages to agents contrary to Common Law.

2. The particulars of the 1st charge were that on divers days between the 1st of January 1981 and the 30th of September 1986 she did, without lawful authority or reasonable excuse, conspire with Keefe Ho, Peter Beckers, Lam Yan-kwai and Alvin Lam to offer advantages, namely gifts, fees, rewards or commissions to the said Keefe Ho and Peter Beckers being agents of Swire Air Caterers Limited, as inducements to or rewards for or otherwise on account of the said Keefe Ho and Peter Beckers doing or having done acts in relation to their principals affair's or business, namely the purchase of dry ice by Shire from Edstrom Limited.

3. The particulars of the 2nd offence were that she did on divers days between the 1st of October 1981 and the 28th of February 1985, in Hong Kong, without lawful authority or reasonable excuse, conspire together with Uwe Kaiser, Peter Beckers and Keefe Ho to offer advantages, namely gifts, fees, rewards or commissions to the said Uwe Kaiser, Peter Beckers and Keefe Ho, being agents of Cathay Pacific Airways Limited and Swire Air Caterers Limited respectively, as inducements to or rewards for or otherwise on account of the said Uwe Kaiser, Peter Beckers and Keefe Ho doing or having done acts in relation to their principals' affairs or business, namely, the purchase of chocolates from Societe des Cinqs Limited and Richgo Trading Company Limited.

4. In the first offence the applicant and the Lams, who were father and son, from 1981 to 1986 funnelled illegal commissions to Keefe Ho and Peter Beckers which related to the sale of dry ice to Swire Caterers. The payments made in this offence amounted to about $800,000. In the second offence the applicant from 1981 to 1985 funnelled illegal commissions to Kaiser, Beckers and Ho which related to the sale of chocolates to Swire Caterers. The payments in this offence amounted to approximately $960,000.

5. The applicant having pleaded guilty to each charge was sentenced to two years on each count and the sentences were ordered to be served concurrently. The trial judge in his Reasons for Sentence stated that he was satisfied that the applicant did not initiate either scheme but he found that she had entered into the schemes willingly with a view to gain.

6. He set out what he regarded as the mitigating factors under the following headings:

                "2. The accused's pleas of guilty.

                 3. the accused's clear record.

4. The accused's background and family history in China and Hong Kong.

5. The fact that she was a comparatively minor player in the scheme."

Under these heads he made specific reference to her plea of guilty, her clear record, her remorse, her family background, her comparatively minor role and the fact that Keefe Ho, the principal instigator, and his associates gained the most from the schemes.. He also bore in mind that Ho had been given an immunity and had been allowed to keep his illegal gains. while observing that, given the latter consideration, the accused might well wonder if justice was being done to her, he was nonetheless satisfied that the gravity of her offence called for an immediate custodial sentence. He concluded:

"The only way of dealing with the accused was by way of immediate custodial sentence. The sentence imposed takes into account all the above factors. The usual reduction has been given for her pleas of guilty. Had there been pleas of not guilty and convictions after trial I would have passed a sentence in excess of 3 years."

7. It is against the concurrent sentences of two years that the applicant now seeks leave to appeal.

8. We cannot but remark at the outset that we were not assisted by the indication from the trial judge that but for the mitigating factors he would have "passed a sentence in excess of three years".. it is almost impossible to assess whether proper weight has been given to the mitigating factors when there is no clear indication as to the starting point used. Did the judge mean that the sentences would have been four years or more, or did he mean that it would have been in the vicinity of but in excess of three years. We do not know.

9. We are satisfied that a proper starting point would have been about three years.

10. The trial judge when sentencing clearly took into account the plea of guilty, the clear record, the family background and the fact that the applicant was comparatively minor player in the scheme. As far as we can judge he seems to have considered that these matters warranted a reduction of about one-third. If there were no consideration other than those set out above we would not feel inclined to interfere.

11. We must however now turn to consider the matters raised by Mr. Sanguinetti, who appears with Mr. Mayne, for the applicant. He argues firstly that the judge failed to give sufficient weight to the fact that the applicant was a comparatively minor player in the scheme. His argument on this ground proceeds upon the basis that as Keefe Ho, the ringleader and principal instigator, was given immunity the applicant is entitled to feel a legitimate sense of grievance given that she is serving imprisonment for two years and he is enjoying the profits of his corrupt behaviour without ever having had to face trial. A sense of grievance in this regard she may have but we are not persuaded that it is a legitimate sense of grievance to which this court can give heed. Although Mr. Sanguinetti did not put it in so many words his argument in this regard required that, an immunity having been given to an offender, a court assessing sentence on fellow offenders regard the avoidance of punishment by the offender to whom immunity was given as a lenient sentence. 'The suggestion was that if this was not done an appeal court was called upon to interfere upon the basis of disparity. We are quite satisfied that this argument must be rejected. It is a matter entirely for the executive whether or not immunity is offered to any-person and the fact that immunity has been given is not a matter which the courts can properly consider when assessing sentence.

12. Mr. Sanguinetti's next three grounds of appeal were, in short, that the trial judge failed to take into account that the applicant had co-operated with the authorities, over a period of about two years before charges were lodged against her, by giving valuable information which led to the prosecution and conviction of other offenders and that she was ready and willing to give evidence for the Crown in the prosecution of yet other offenders who had been charged but not yet tried. The Crown represented by Mr. Cross very fairly concedes both that this is so and that the trial judge did, on the face of his reasons, fail to give any weight to these factors. We are satisfied that there is considerable weight in this submission and that this apparent failure is such as to call for our interference.

13. Mr. Sanguinetti's final ground was that there was a disparity between the sentences passed on the conspirators already dealt with and that passed on the applicant and, further, that the sentence passed on the applicant was more severe than that which should have been imposed in accordance with the level of sentence revealed by prior conspiracy convictions. He very helpfully reviewed the cases in this regard.

14. We can, however, deal with these two arguments by simply indicating that we see nothing to indicate either that she has been treated in any way more severely than the other co-conspirators and that nothing in the cases to which we have been referred indicates that her sentence was out of line with the general level of sentences passed in conspiracy cases.

15. At the hearing of the appeal we stated that we would allow the application on the ground indicated above and reduce the sentence on each charge from two years concurrent to eighteen months concurrent and would hand down our reasons later. This we now do.