HKSAR v. YUEN CHI MING

HCMA56/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.56 OF 2001

(ON APPEAL FROM WSCC 9705 OF 2000)

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J U D G M E N T

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1. The appellant, Yuen Chi Ming pleaded guilty to one charge of offering an advantage to a government officer, contrary to section 8(1) of the Prevention of Bribery Ordinance. He was sentenced to six months' imprisonment. This is his appeal against sentence.

2. The Summary of Facts based upon which the appellant was convicted was that on 18 December 1999, the appellant was arrested by the police, together with a number of others, for illegal bookmaking. A sergeant surnamed Wu, was a member of the team of the police officers who arrested the appellant in the operation. Subsequently in the course of the investigation, he interviewed the appellant under caution on two occasions.

3. On 30 December 1999, the appellant arranged to meet the sergeant at Brewin Path. The meeting took place in the appellant's car. As they were leaving the scene, both were intercepted by the police. In the vicinity, a wad of banknotes totalling $50,000 was recovered by the police at the side of a refuse collection point. On the following day, the appellant, together with the money, was handed over to the Independent Commission Against Corruption ("ICAC") for further investigation. Under caution, the appellant stated that he came to know the sergeant because the latter was the handling officer for the case for which he was arrested earlier in December. The appellant admitted to having lent $50,000 to the sergeant during the meeting when the latter told him earlier that he was in some financial difficulties.

4. Mr C.Y. Wong, SC, for the appellant submits that the six months' sentence imposed was wrong in principle and/or manifestly excessive. There are two grounds in support of the present appeal. Ground one is that the learned magistrate did not adopt the most favourable view based upon the Summary of Facts. Ground two is that the learned magistrate was wrong in holding that the consequences of the loan were serious and far-reaching and that there were no exceptional circumstances under this case for which he could consider imposing a sentence other than an immediate custodial sentence.

5. One must not lose sight of the fact that the incident took place less than a fortnight after the appellant's arrest. He was purportedly lending $50,000 to his investigation officer. The transaction was in cash and the money was found discarded at a refuse point in the vicinity of the spot of the meeting. The circumstances were extraordinary. Counsel for the respondent suggests that there is a distinct whiff of corruption. I would perhaps venture to go further by commenting the state of affairs has a sinister connotation which is capable of causing deepest concern.

6. Learned Senior Counsel submitted that that since the sum of money was intended as a loan and, as such, the learned magistrate should not read into it that the loan would have the effect of encouraging the sergeant to compromise or to impair his judgment in handling the case. Attractive as it may seem, the argument overlooks the element of objectivity of the conduct of the parties when viewed in proper context. The learned magistrate was entitled to comment on what was presented to him by way of the Summary of Facts and he did not speculate in any way as to what the object of the parties involved were. The apparently innocent label given to the $50,000 in no way lessens seriousness of the offence. One must not loose sight of the definition of the term "advantage" under section 2(1) of the Ordinance and the elements of the offence under section 8.

7. There is a long list of authorities to the effect that a deterrent sentence of a substantial nature is to be imposed in offences involving the Prevention of Bribery Ordinance. In Lai Yuk Kui v. R [1981] HKLR 691 at 694G, Roberts CJ made the following observations :

"... I consider that the following guidelines for magistrates can be derived -

Firstly, that where an adult is convicted of an offence against section 4(1) or 4(2) of the Prevention of Bribery Ordinance, an immediate custodial sentence should normally be imposed, whether the offender is a public officer or not.

Secondly, alternative methods of dealing with an offender such as a fine, a probation order, or a suspended sentence should be imposed only in exceptional cases where the facts or the circumstances of the offender justify it.

To these I would add the following additional guidelines. I suggest that magistrates should approach the question of penalty to be imposed for such an offence on the basis that the usual minimum imprisonment should be twelve months. This guideline, of course, is not to be construed as interfering with the usual discretion of a magistrate to impose a lesser or greater sentence when the case justifies it.

The same principles should apply to a person convicted of an offence against sections 5, 6, 7 and 8 of the Prevention of Bribery Ordinance, though I express no view as to appropriate sentences for offences against sections 3 or 9 which involve a far wider range of moral culpability."

8. The underlying sentencing policy has been recently reiterated in Secretary for Justice v. Li Cheuk Ming [1999] 1 HKLRD 63. Chan CJHC (as he then was) said at page 66 :

"However, bribery and corruption have been for ages regarded as crimes which are intolerable in a civilised society. They are cancerous activities in a healthy and sound society and their impact to the entire society could be serious, far-reaching and adverse. They must be eradicated quickly and thoroughly, otherwise they would spread to the whole community like a prairie fire that never burns out and the consequence is disastrous. ..."

The Court of Appeal went on to observe that a starting point of nine months' imprisonment was appropriate in that case when the respondent pleaded guilty to offering a bribe of $500 to a public servant, contrary to section 4(1)(c) under the ordinance. The sum involved in the present case is much higher.

9. Senior Counsel for the appellant relied on the case of R v. Tong Hiu Ming & Anor MA833 of 1986 (unreported), in which Bewley J said at page 5 of the judgment :

"... it is right to draw a distinction between section 4 and section 8. The latter clearly contemplates behaviour of a less objectionable nature, ..."

10. While there must be some truth in the statement above, one needs only to refer to the Summary of Facts in the present case. As I have observed earlier, there is a sinister connotation associated with corruption in the conduct of the parties. The facts of the present case clearly come within those contemplated by the Court of Appeal in Li Cheuk Ming above. A period of immediate custodial sentence must be called for.

11. The other complaint against the learned magistrate was that he failed to recongise the exceptional circumstances present in this case, so that a suspended sentence or a community services order is appropriate.

12. This is not a technical offence and it must have been apparent to the learned magistrate. The appellant, aged 53, is not a first offender and has a long list of convictions dating back to 1963. He had knowingly overstepped his relationship between his investigation officer and offered what he called a cash loan in very suspicious circumstances. I do not think it can be argued at all that the appellant was unaware of the serious consequences that he was facing by providing the sergeant with a sum of $50,000.

13. In my view, the learned magistrate was correct in concluding that there was no exceptional circumstances in the present case to justify a sentence which is other than an immediate custodial sentence. The starting point of nine months was the appropriate sentence to have passed under the circumstances and the appellant was given the full one-third discount for his plea. The sentence was neither excessive nor was it wrong in principle.

14. For the reasons given, the appeal against sentence is dismissed.