HKSAR v. TO YIU CHO

   CACC14/2009

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF APPEAL

   CRIMINAL APPEAL NO. 14 OF 2009

   (ON APPEAL FROM DCCC NO. 635 OF 2008)

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BETWEEN

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JUDGMENT

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Saw J (giving the judgment of the Court) :

1.   On 23 December 2008 the applicant pleaded guilty to one charge of being an agent accepting an advantage, contrary to sections 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 ( the Ordinance ). An additional charge for the same offence was left on the court file. His co-accused Chong Kam Sing also pleaded guilty to one charge of offering advantages to an agent, contrary to sections 9(2)(a) and 12(1) of the Ordinance.

2.   Deputy Judge Johnny Chan sentenced the applicant to be imprisoned for 14 months. Pursuant to section 12 of the Ordinance he ordered that the applicant pay to his former employer the Renaissance Kowloon Hotel Hong Kong ( the Hotel ) the sum of $110,000 such payment to be made within 6 months of his discharge from prison and in default of payment ordered that the applicant serve 4 months imprisonment.

3.   This is his application for leave to appeal the sentence and the order for restitution.

4.   The applicant was and had been since 2001 the purchasing manager of the Hotel. He was as the judge noted responsible for placing orders with approved suppliers for the Hotel. Amongst those on the approved list of suppliers were Yuet Hing Meat Company ( Yuet Hing ), Tung Tak Dried Seafood Company Limited ( Tung Tak ), Ho King Chicken and Duck Shop ( Ho King ) and Hing Fat Seafood Company Limited ( Hing Fat ). It was the applicant who could determine which of the approved suppliers would receive orders from the Hotel.

5.   It was an admitted fact that from 1 May 2005 to 19 March 2007 the applicant was paid $10,000 every 2 months to show favours to or not make things difficult for Yuet Hing, Tung Tak, Ho King and Hing Fat when placing orders for the Hotel. Over this period he was paid $110,000. It goes without saying that the Hotel prohibited its employees from accepting payments of this kind.

6.   In the course of mitigation it was said on the applicant s behalf that notwithstanding the payments made to him on behalf of those approved suppliers he had not shown them any favour.

7.   The judge noted in sentencing :

24. In terms of quantum of sentence, 1st charge concerns a total sum of $110,000, and the payments took place over an extended period of 22 months. The case of D1 is serious both in terms of the amount of money involved, the number of payments made and the period of time covered. I also bear in mind the position of D1 that he was the purchasing manager of the hotel charged with the duty for placing purchase orders with approved suppliers, and he was the one who had authority in deciding which suppliers on the approved list to place orders with. The fact that D1 had in fact shown no favour to those who paid him money and that the goods supplied were not substandard is neither here nor there. The payments to D1 would end up as costs to the suppliers and the hotel would end up paying more for the goods it ordered. Hence, the customers would have to shoulder the higher bills. Corrupt activities of this sort would eventually undermine the competitiveness of the local hotel industry.

8.   The judge took a starting point for sentence of 21 months which he reduced to 14 months to allow for the applicant s plea of guilty.

9.   In ground 1 of re-amended perfected grounds of appeal dated 3 June 2009 Mr Kay K.W. Chan on behalf of the applicant complains that the judge was in error when he assumed, as he did, that ultimately the cost of the payments made to the applicant would be passed on to the Hotel. It is said that the judge was in the passage cited above speculating and that there was no evidential foundation for his assumption.

10.   It is correct to say that there was no evidential foundation for the assumptions made by the judge that the costs of the improper advantages would be ultimately passed on to the Hotel s customers. However in the final analysis nothing turns on this. It is in the nature of offences of this type that somewhere down the line someone will have to pay for the advantages. It is for this reason amongst many others that this conduct is criminalized. In the instant case whilst the judge was speculating as to the ultimate victim, the sentence he passed cannot properly be said to be excessive by reason of this. Nothing in the reasons for sentence suggests that the starting point for sentence was in any way enhanced by this assumption.

11.   There is no merit in this ground of appeal.

12.   Ground 2 complains that the judge was in error when imposing a default terms of imprisonment in respect of the applicant failing to comply with the section 12 restitution order. Mr Beney Wong, SSP for the Department of Justice properly accepts that the judge was in error and that there is no power which would permit him to impose a term of imprisonment in default of restitution. To this extent he concedes that the appeal must be allowed. He also emphasizes that generally speaking the means of the offender subject to a restitution order would not normally be relevant to the quantum of such an order. As he points out section 12 is mandatory and requires that full restitution be made.

13.   In ground 3 the complaint made is that the judge did not take into account relevant matters in mitigation when imposing what he described as a deterrent sentence. This, it is said, is all the more so when the fact that an immediate custodial sentence is by its nature a deterrent sentence.

14.   As we understand this argument the length of the sentence imposed in the instant case is manifestly excessive given that deterrence is implicit in the fact that the sentence is an immediate custodial sentence and the factors in mitigation should have resulted in a lower term of imprisonment.

15.   The matters to which our attention are drawn include the fact that the applicant was the sole family breadwinner, that he had worked in the hotel industry for 30 years and would in all probability be unable to find another job in that industry after his release from prison. Whilst these are important considerations there is no justification for the assumption made that they had not been considered. The judge did consider them but he gave them little or no weight.

16.   What the judge said was this :

25. I am indeed sorry that D1 s family members all have to suffer from D1 s crime. However, family difficulties as pleaded by D1 cannot militate against the culpability of the crime D1 has committed. I do not accept it can be considered as a mitigating factor. Those who are prepared to accept bribery should have thought in advance about the hardship of their families in the event that their crimes are discovered.

17.   In this regard the observations of the judge cannot properly be criticized. We note that in Sentencing in Hong Kong 5^th Ed. at 339 the learned authors observe that generally speaking family hardship which is usually attendant upon the conviction is to be viewed as part of the price the accused must pay for the crime and that the adverse effect of imprisonment upon an offender s family is not normally a factor to be taken into account . They also refer to the observation of Silke VP in R. v. Chin Hon YuenCACC393/1988 (unreported) where he said that Family circumstances are matters which a wise man would take into consideration before he commits an offence and not after .

18.   There is no merit in this ground of appeal.

19.   As to the starting point for sentence this offence carries a maximum penalty of a fine of $500,000 or seven years imprisonment when dealt with in the District Court. The starting point for sentence adopted by the judge was at the lower end of the scale. Nevertheless the offence was serious. The applicant was in a position of trust which he breached over a period of almost two years.

20.   We are not persuaded that in all of the circumstances that the starting point for sentence adopted by the judge was manifestly excessive.

21.   Deterrent sentences are called for in offences of this type and in the instant case we are satisfied that a starting point of 21 months was called for.

22.   Given that the judge had no power to order that there be a term of imprisonment in default of the restitution order, leave to appeal is granted and treating the hearing of the application as the appeal, it is ordered that that part of the confiscation order requiring the appellant to be imprisoned in default be set aside. The appeal is allowed to that extent.