ATTORNEY GENERAL v. LAU SHEK MAN AND OTHERS

Application for Review No. 4 of 1987

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

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J U D G M E N T

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Penlington, J.

1. Pursuant to leave and Section 81A of the Criminal Procedure Ordinance (Cap. 221), the Attorney General sought a review of sentences passed by Hopkinson, J. on the 9th January 1987. We now give our reasons for dismissing the applications.

2. The charges and sentences passed in respect of each Respondent were as follows:-

4. The 1st, 2nd and 3rd respondents were all sergeants of the Royal Hong Kong Police Force at the time of the commission of these offences. It was the Crown's case that they had been systematically accepting bribes over a substantial period of time from the 4th respondent who was operating gambling and vice establishments and who has several previous convictions for operating such establishments and robbery. The 1st and 4th respondents pleaded guilty at an early stage to the offences with which they were charged. The 2nd and 3rd respondents were convicted after trial. The 3rd respondent was also charged with conspiracy to accept advantages but was acquitted of that charge.

Background

5. The essence of the Crown's case against the respondents was that over a period of some 2 years from March 1983 to September 1985, there was a syndicate of corruption within the Royal Hong Kong Police Force in. the Yaumatei Division and that in various degrees each respondent was involved in paying or accepting bribes in exchange for providing or receiving advanced warning as to proposed raids of other police officers in relation to establishments operated by the 4th respondent. The main offender of the policemen was the 1st respondent. The 2nd and 3rd respondents each played a lesser role but nevertheless took an active part in this conspiracy. The 4th respondent also pleaded guilty to procuring girls under the age of 21 to have sexual intercourse. The basis of this charge was that not only were members of the R.H.K.P.F. provided with cash bribes but they were also provided with the services of young ladies who were employed by the 4th respondent in one or more of his vice establishments.

6. In December 1983, the 3rd respondent introduced the 1st respondent to the 4th respondent who was operating illegal vice and gambling establishments. The 1st respondent was at this time attached to the Yaumatei anti-gambling special duties squad. Arrangements were made and the 1st respondent was from then on in receipt of regular monthly payments from the 4th respondent. In May 1984, the 3rd respondent was transferred and from then on payments were made to the 1st respondent via other police officers who were not before the Court. In August 1984, the 4th respondent entered into an arrangement with the 1st respondent as a result of which payment was made for protection of illegal gambling at a fixed rate of $700 per operational night. Warnings of intended police action were transmitted via the 1st respondent to the 4th respondent. There was a short break in these activities in early 1985 but in March of that year, the 4th respondent recommenced an illegal gambling operations. The 2nd respondent and other officers acted as a “security guard” outside gambling premises from March to June of that year.

7. In May 1985, the 2nd respondent was transferred to the anti-vice squad and made arrangements with the 1st respondent that advanced notice of raids would be given to the 1st respondent so that he could pass it on. However, by the end of July, information was being given direct to the 4th respondent by the 2nd respondent.

8. The I.C.A.C. then became aware of the relationship between the four respondents and as a result, two undercover agents were used to infiltrate the 4th respondent's activities. Conversations between these agents and the 4th respondent were tape-recorded and it became clear that he was paying for and receiving advance information regarding police raids. This continued until on the 8th September 1986 when the accused were arrested and, when the 1st respondent's home was searched, property was found including 100 taels of gold and $62,000 in cash which he admitted were assets derived from his illegal dealings with the 4th respondent.

9. There was also evidence that in addition to cash payments, free sexual services were provided for the 1st respondent, the 2nd respondent and their friends by the 4th respondent. These services were provided by young women who were working for a Hoi Wong Recreation Club which was owned and controlled by the 4th respondent. These girls were paid for their services and there was no evidence that they were in any way unwilling.

10. The Attorney General sought to have the sentences passed reviewed on the basis that they were both wrong in principle and manifestly inadequate. However, Mr. Lugar-Mawson conceded that so far as the 1st, 2nd and 3rd respondents were concerned, their sentences were not wrong in principle in that each had been sentenced to an immediate term of imprisonment. Nor did he argue that the concurrent sentences should have been made consecutive. However with regard to the 4th respondent was concerned, he did suggest that the conspiracy to procure young women was a different offence from the bribery to prevent effective police action being taken and that the sentence passed for the former offence should have been consecutive to the others.

The 1st Respondent

11. The 1st respondent was given immunity in respect or other offences which he-was alleged to have committed and agreed to surrender the 100 taels of gold found in his home. He pleaded guilty to the offences ab initio and has continued to give very helpful information to the I.C.A.C. regarding the activities of the other respondents and also other vice and gambling operators and corrupt police officers. He gave evidence at the trial against the 2nd and the 3rd respondents and has, since his release, given evidence in the Kowloon Magistrates Court against other defendants. Because he had been refused bail, he was in fact released in January 1987, having been in custody since the time of his arrest.

12. In imposing concurrent sentence of 2 years' imprisonment, the trial judge took as a starting point a sentence of 4 years which he then discounted by 50% in view of his clear record and a commendation, the early plea of guilty, the fact that he had given evidence against his colleagues in the trial, had offered to do so in future cases and his surrendering the 100 taels of gold. The judge said that he did not regard him as a "supergrass" where a reduction of up to 2/3rds has been held to be appropriate (R. v. CHAN Fu-kui[1]) but that he should receive more than the normal discount for a plea of guilty, which is in the vicinity of 25%. We do not consider that reasoning was wrong in principle on the facts of this case.

The 2nd respondent

13. The 2nd respondent has not given information and has been convicted after trial. The evidence against him was that between May and September 1985, he received some $4,000 in corrupt payments. It was not disputed that he played a comparatively minor role and that the payments were made by a very willing victim. He was not found to be in possession of any assets. Naturally he also has a clear record. The trial Judge appears to have considered that in view of the relatively minor role played by the 2nd respondent compared with the others, a sentence of half the starting point would be appropriate. We cannot see that this was wrong in principle.

The 3rd Respondent

14. The 3rd respondent was acquitted of the charge of conspiracy to accept advantages but was convicted of the conspiracy to pervert the course of justice and of conspiring to protect the gambling establishments operated by the 4th respondent. He has a number of commendations for good conduct including one from the Commissioner of Police. He was sentenced to 21 months' imprisonment on each charge to be served concurrently. Again, particularly in view of his acquittal of the charge alleging conspiracy to accept advantages, we do not consider that sentence wrong in principle.

The 4th Respondent

15. The 4th respondent was at the other end of the operation and quite clearly had no hesitation whatever in protecting his illegal activities by bribery. He also has a number of previous convictions. However, he pleaded guilty ab initio and has since then given full information to the I.C.A.C. and is continuing to do so. Apparently, he at first indicated that he would not give evidence at the trial against his fellow conspirators but later said that he would be prepared to do so. At that stage, however, it was not considered by the Crown that his evidence was required. While he did make all sentences concurrent, the trial judge took into account the fact that he was prepared to procure young ladies for police officers as part of the bribery operation. For this he received an extra 6 months' imprisonment. We do not consider that, on the facts here, the making of all sentences concurrent was wrong in principle but that the judge was correct in adding something because of the charge of procuring. While it may have been on the lenient side of the scale we do not consider that a sentence of 2½ years was wrong in principle in view of the co-operation which this accused has given and is still giving to the I.C.A.C. and his willingness to give evidence if required.

16. It is the argument for the Crown that these were very serious offences committed by senior serving police officers. Syndicated corruption within the police force which was prevalent before the advent of the I.C.A.C., has now been much reduced if not eliminated. This is the first case which has occurred for some considerable time and the Court should be anxious to see that it is made clear that any re-emergence of this type of corruption will be severely dealt with. The corruption involved a very substantial commitment of resources including the infiltration of two undercover agents into the activities of the 4th respondent and the corrupt police officers involved. The maximum sentence for these conspiracies is one of 7 years' imprisonment and it is submitted that the sentences should have been in the top end of the scale.

17. The trial judge appears to have taken as his starting point a sentence of four years' imprisonment for this type of offence and he referred to R. v. Tsang Wing[2] where such a sentence on facts which were more serious, appears to have been considered appropriate. There, on a review, the sentence was increased to three years' imprisonment, the indication being that it would have been more if it had not been a review. Mr. Lugar-Mawson for the Crown concedes that while a 50% reduction of sentence on the particular facts of this case may have been over-generous, so far as the 1st and 4th respondents are concerned, he cannot argue that it is wrong in principle. This is a matter for the discretion or the trial judge having considered all the circumstances of the particular case and those circumstances obviously vary enormously. We are satisfied that the discount given was not wrong in principle nor was it wrong, and indeed clearly was correct, that all these sentences should be concurrent. In view of this, the only question is whether the judges' starting point of 4 years' imprisonment was appropriate.

18. This was a conspiracy which was carried on over a considerable period of time with the object of protecting illegal gambling operations. The 1st respondent obviously received substantial rewards, most of which, however, have now been surrendered. While this was a serious conspiracy, we do not consider that it was of the worst possible sort. In R. v. Leung Kin Chak and anr.[3], for instance, there was a conspiracy by a police sergeant to protect heroin trafficking operations, although over a shorter period of time. The rewards were again substantial and sentence of 5 years' imprisonment was upheld on appeal. We do not consider that the general public would regard the conspiracy in this case as being as serious and as deserving a similar punishment. We therefore consider that the trial judge was correct in his assessment of 4 years' as being a starting point for this type of offence and that the reductions he made were in the circumstances appropriate.

19. We fully appreciate the concern felt that the severe penalties should be imposed on police officers who systematically accept bribes from thos involved in vice and gambling and on the persons so involved. The principle certainly remains that substantial immediate custodial sentences should follm1 convictions. However, as was said by Huggins V.P in R. v. Tamang Nima[4] :-

"The power of review was conferred to correct errors in exceptional cases and the Court will be jealous to prevent encroachment on the discretion of judges and magistrates to impose a lenient sentence as they may think appropriate, provided the sentence is one which in all the circumstances could reasonably be passed."

20. For the reasons given in each case we are satisfied that there was no error in principle involved in any of the sentences passed and they were not manifestly inadequate. The application to review was therefore dismissed in each case.

21.The 1st and 4th respondents were legally aided and no application is made by them. However that was not the case for the 2nd and 3rd respondents and Mr. Plowman asks for an order for costs pursuant to Section 81A (28) (5) of the Criminal Procedure Ordinance which provides for such an award 1tmen an application for review of sentence is refused.

22. By a majority we do not consider this is an appropriate case for an award of costs.