HCMA773/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 773 OF 2005
(ON APPEAL FROM KCCC 2084 OF 2005)
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BETWEEN
HKSAR
Respondent
and
LEUNG MEI KING
JACKY (梁美琼)
Appellant
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Before : Hon McMahon J in Court
Date of Hearing : 17 and 24 November 2005
Date of Judgment : 7 December 2005
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J U D G M E N T
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1. This is an appeal against conviction and sentence.
2. The appellant was convicted after trial of one count of offering an advantage to an agent contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201. She was sentenced to 3 months’ imprisonment.
3. The facts of the case as found by the magistrate were that the appellant had operated a public relations or promotion agency called “JK8108HK”. A company in Hong Kong which distributed wines and spirits called Pernod Ricard on occasion engaged the appellant’s agency to arrange events in supermarkets and department stores to promote Pernod Ricard wines and spirits.
4. One of the staff members of Pernod Ricard was a Mr Chan (“PW2”). He was a manager within the company’ sales department and on occasion worked with the appellant in organising the promotional events. PW2 had nothing to do with the hiring of promotional companies for the purposes of putting on the promotional events, but the appellant thought he may have had some say in the process.
5. Over the course of about three years the appellant and PW2 developed a working relationship. In about Chinese New Year 2003 Pernod Ricard planned to set up promotional stalls in various supermarkets in Hong Kong. This was an annual event for the company and the appellant knew this. She asked PW2 what the company’ plans were for the forthcoming promotions and at which supermarkets they were to be held. She had at this time on behalf of JK8108HK tendered for the promotional contract with Pernod Ricard. She told PW2 she hoped to get the job.
6. Shortly after this discussion PW2 and the appellant met again. PW2 was in Nathan Road walking towards the MTR station nearby the Miramar Hotel when he saw the appellant approaching him from the opposite direction. She came up to him, said she had something to give him, and handed him an envelope. PW2 opened it and saw there was $5,000 in it and asked the appellant what it was for. The appellant simply said it was for him and walked away.
7. PW2 continued on to the MTR station but was concerned about the money and rang the appellant on his mobile phone. He asked her why she had given him the money and she again replied it was for him. PW2 said he could not accept it and asked for the number of the appellant’s bank account. She gave it to him and he deposited the money into her account the following day. He informed his employer about all this and the company eventually reported the matter.
8. The appellant did not give evidence. Her case was set out in her video interviews which were in evidence and in which she eventually admitted (after initially denying) giving the $5,000 to PW2 but said it was given simply as Chinese New Year “laisee” intended to repay PW2 for the various meals and drinks he had bought her on the occasions they had worked together.
9. The grounds of appeal against conviction can be summarised as two fundamental complaints :
(1)
that the
magistrate was wrong, on the evidence before him, to infer that
the payment of the money to PW2 by the appellant was intended to
be a reward for PW2’s assistance in her company obtaining the
promotional contract; and
(2)
that the
magistrate was wrong to reject the appellant’s version of the
giving of the money to PW2.
10. In respect of the 1st complaint Mr Ho for the appellant contends that there was insufficient evidence to establish a proper factual basis to allow an inference of guilt to be drawn by the magistrate.
11. In this regard the magistrate said after finding PW2 to be a reliable witness :
“…Based on the circumstances that the money was given to PW2, the manner that the money was given, the perceived need for a recommendation by PW2 in order for the Defendant to be awarded the assignment, the reaction of the Defendant when confronted with the payment in the interviews, and taking into consideration the ‘corrupt intent’ test propounded in So Kam Tim
12. Those factual matters taken into account by the magistrate in drawing an inference of guilt are perfectly valid. Indeed, once he had accepted the evidence of PW2 as to the circumstances of his business relationship with the appellant and the giving of the money, and considered that against the background of the appellant’s perception that PW2 may have had some say in the awarding of promotional contracts to her company together with the fact that at the time of the making of the payment she had tendered on behalf of her company for such a contract, it is difficult to see what other conclusion, in the absence of any other evidence, the magistrate could have arrived at.
13. Miss Ho for the appellant in this regard also contends that the magistrate was wrong to find the appellant had admitted that she thought PW2 may have some been influential in the awarding of promotional contracts and that she had not done so. But in her recorded interview she said this :
“Q : … At that time did the job require, er, require, actually r equire rec-recommendation to the higher level before (it) could be given to you?
A : … he made the recommendation?
Q : … Was (it) needed?
A : … I don’t know. He said, he probably, they probably needed (it).
Q : Was (it) needed?
A : Uh.”
14. In my view from that portion of the video interview, even given that the last answer seemed to be non-committal, the magistrate was entitled to draw the conclusion which was important to his findings, that the appellant believed PW2’s recommendation was probably required for her company to successfully obtain the promotional contract.
15. The appellant makes other complaints as to erroneous findings of fact by the magistrate but there is, upon a perusal of the transcripts provided, no merit in these complaints. The magistrate made no significant error in his recollection of the evidence as suggested.
16. In regard to her 2nd complaint Miss Ho contends in drawing the inference of guilt against the appellant the magistrate ignored other evidence which was consistent with the payment to PW2 being made for an innocent purpose.
17. She says in this regard that the magistrate was wrong to reject the explanation put forward by the appellant in her recorded interviews.
18. That explanation was offered only in the appellant’s second interview. In her first, conducted one hour earlier, she had denied paying $5,000 to PW2.
19. In her second interview she admitted the payment and explained her earlier denial as a misunderstanding by her as to what year she was being questioned about. That seems a strange misunderstanding as she had been taken through the allegation of her meeting PW2 in Nathan Road, giving him $5,000 and him returning it to her bank account step by step, before her denial.
20. Nevertheless she, after admitting the payment in her next interview, then explained it on the basis that it was New Year laisee which served the purpose of repaying PW2 for the various snacks and soft drinks he had bought her on the occasions they worked together and for the promotional items such as key rings and small drink bottle samples he had given her. PW2 had agreed in his evidence that he and the appellant, on occasions when they had worked together, had gone for snacks or meals, though not dinners as had been put to him.
21. PW2’s evidence was descriptive of an ordinary business relationship. The promotional material provided by him and the snacks he and the appellant had during meal breaks could in no way sensibly explain the provision of $5,000 to him in an envelope on a public street. Nor was there any substance to the appellant’s other assertions in her interview that she just happened to bump into PW2 in the street and as she had $5,000 cash on her, took the opportunity to give it to him.
22. Bearing in mind the appellant was not a wealthy woman at the time, that sum of money was significant to her. The magistrate was quite entitled to dismiss her case as put forward in her second record of interview as unworthy of credit.
23. The appeal against conviction is dismissed.
24. I now turn to the appeal against sentence.
25. There can be no complaint in the normal course of events in respect to a sentence of immediate imprisonment for an offence contrary to section (9)(2)(a) of the Prevention of Bribery Ordinance. Indeed it is only in exceptional circumstances that such a sentence would not be imposed. Neither general family background, nor the common financial losses consequent upon a conviction and imprisonment for a bribery offence are exceptional circumstances : see Secretary of Justice v. Li Cheuk Ming [1999] 1 HKLRD 63.
26. The sentence of 3 months’ imprisonment after trial could not in the normal course be complained of and Miss Ho for the appellant does not do so.
27. What she argues before me is that extraordinary circumstances exist in the present case. The appellant’s husband is a schizophrenic. He had been treated for the illness for some time, though he was diagnosed on occasion as possibly also or alternatively suffering from a delusional disorder, psychoses and alcohol-induced psychosis. But it is not in issue that the appellant’s husband attempted suicide in 1999 by leaping from a bridge and sustained serious injuries as a result.
28. The appellant called Dr Chow Lok Yee, in the course of her appeal against sentence, a psychiatrist who has often provided reports and given evidence to the courts of Hong Kong. He saw the appellant’s husband as a result of the appellant’s solicitor’s initiative during the course of their preparation for this appeal. Dr Chow’s conclusion as to the illness suffered by the appellant’s husband is in his report of 2 November 2005 and is as follows :
“He is suffering from a relapse of psychotic illness with a risk of suicide. He is socially isolated. He only listened to his wife’s advice. He is currently exhibiting mild but potentially escalating paranoid feelings. He needs the care and advice of his wife in case of further deterioration of his psychotic illness…”
29. Dr Chow’s views were based on three separate examinations of the appellant’s husband, but were necessarily based primarily on the subjective information provided to him by the husband, together with other somewhat scanty information contained in earlier reports.
30. A court must be wary of expert witnesses such as Dr Chow having the wool pulled over their eyes so to speak for the purposes of proceedings such as the present.
31. Accordingly I reserved judgment in this matter for the purposes of the provision of a report from the Queen Mary Hospital where the appellant’s husband had been receiving treatment from 1999 to 2003 for alcoholic hallucinosis. He was again examined in the General Psychiatry Unit of that hospital on 20 October 2005 at the request of Dr Chow and a full report became available recently dated 23 November 2004. The diagnosis is schizophrenia. I accept that the appellant’s husband is mentally ill.
32. The appellant also gave evidence before me for the purposes of her appeal. She described her living circumstances as follows : she and her husband live in a flat nearby his 82-year-old mother and his elder brother who has Parkinson’s disease. She said the mother and brother are incapable of looking after her husband by themselves. I accept her evidence in that regard.
33. It seems to me that the appellant has established the extraordinary circumstances required to allow other alternative options to a sentence of immediate imprisonment to be considered. In my view an appropriate option would be community service.
34. The appellant has now expressed remorse for her offence and accepted she committed it. In my view the criteria in the R. v. Brown have been sufficiently fulfilled.
35. I have asked for and received a report on the appellant’s fitness for community service. She is regarded as suitable, and a period of 180 to 240 hours is recommended. The appellant understands the obligations upon her consequent to the making of such an order and consents to it.
36. Accordingly I order that the sentence of 3 months’ imprisonment be set aside and that in substitution thereof the appellant undergo 200 hours’ community service.
(M.A. McMahon)
Mr Alex Lee, SADPP, of the Department of Justice, for HKSAR
Ms Ho Wai Yang, instructed by Messrs Ho & Partners, for the Appellant