XCHRX R. v. CHAN KWOK HING

IN THE COURT OF APPEAL

1994, No. 103

(Criminal)

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J U D G M E N T

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Litton, J.A.:

1. This is an application for bail pending appeal brought under the provisions of Section 83R of the Criminal Procedure Ordinance. The section confers the widest possible discretion on me to admit the applicant to bail if upon all the circumstances I consider it "fit" to do so.

2. The applicant was convicted on his own plea on one charge of offering an advantage to public servants contrary to section 4(1)(a) of the Prevention of Bribery Ordinance. The offence was committed on the 12 July 1990 when he offered a sum of $40,000 to officers of the Television and Entertainment Licensing Authority and Civil Service Branch. The principal evidence against the applicant came from an undercover agent of the ICAC. In effect the applicant was caught red-handed when, by arrangement, he was about to hand over the $40,000 to the undercover agent in September 1990. The conversations constituting the gravamen of the offence were tape-recorded. It is not surprising in the circumstances that the applicant pleaded guilty.

3. This application has caused me considerable anxiety. In the background are some vulnerable children. The applicant has three children. The oldest daughter aged 18 is in the United Kingdom and would be unaffected by this case. He has a 13-year-old son who is a boarder at St. Stephen's College in Stanley and a four-year-old daughter. He has been divorced from his wife for some years and by arrangement between the couple the applicant has had the custody of the children.

4. The care of the children was one of the matters which the sentencing judge weighed. What he said was this:

"Having anxiously considered the matter, I do not consider that the welfare of the children is a factor which calls for a suspended sentence in this case."

5. There were also a number of other factors which the sentencing judge very carefully weighed. They can be briefly enumerated as follows:

(1) The impact of a custodial sentence on the applicant's business. The point was made that he owed substantial sums to banks and it was necessary to maintain the cash flow by continuing to operate his businesses.

(ii) The applicant is in poor health.

(iii) The charges were stale and the matter has been hanging over the applicant's head since September 1990; and

(iv) That there was a degree of entrapment by the ICAC which led to the commission of the offence.

6. Having weighed these matters very carefully, the sentencing judge, His Honour Judge Whaley, imposed what he considered the minimum which he could properly have imposed. This was nine months' imprisonment, three months less than what is referred to as the minimum sentence of imprisonment, except in the rarest of cases, in Lai Yuk-kui v. R. (1981) HKLR 691.

7. It is clear that if I were to refuse the application this morning the effect would largely be to render the appeal academic, since the applicant would in practical terms have served the bulk if not the whole of his sentence before the appeal could be heard.

8. If there is a chance that a Court of Appeal might disturb the sentence, then that would weigh heavily in the scales on this application. Looking at the material which the sentencing judge had very carefully considered, I find it impossible to say that he had erred in principle or had imposed a sentence which was manifestly excessive.

9. The only matter which causes me anxiety now is this: There is a psychiatric report before me which indicates that the ex-wife is in a poor state of mental health. Whilst she has moved back to the old matrimonial home for the purpose of looking after the children, pending the applicant's imprisonment, she is not in a position to take care of them. Is this something which, perhaps, might amount to a change of circumstance and could influence the court to exercise it's powers to vary the sentence?

10. In my judgment the matter is neutral. The Court of Appeal plainly should not be put under pressure of any kind by the plight of the children. The trauma to the children of this applicant eventually losing his appeal and having to serve the balance of his sentence after his appeal is dismissed would be even greater than if this applicant were to serve out the bulk of his sentence now. It is difficult therefore to see how the wife's poor mental health now weighs heavily in the scale in considering the matter before me. Accepting as I do that this applicant is likely to have served the bulk of his sentence before his appeal is heard, but having regard to the very careful way in which the judge considered all the relevant circumstances, I am not persuaded that this is a case where I should accede to the application. For these reasons and with some reluctance this application is dismissed.

11. I would particularly draw to the listing clerk's attention the circumstances of this case and ask that the appeal be listed for hearing as soon as possible.