COURT: The defendant pleaded guilty to the following charges: Charge 1, being a prescribed officer maintaining a standard of living above that commensurate with his official emoluments, contrary to section 10(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Chapter 201.
Charges 2, 3 and 4 are identical offences of dealing with property known or believed to represent proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Chapter 455, money laundering offences. In Charges 1 to 4, the defendant is accused of committing these offences with his wife, Ng Wai-Shan.
Charge 5, misconduct in public office, contrary to Common Law and punishable under Section 101I(1) of the Criminal Procedure Ordinance, Chapter 221; the last charge, Charge 6, being a public servant accepting an advantage, contrary to Section 4(2)(a) and 12(1)1 of the Prevention of Bribery Ordinance.
The defendant and his wife married in December 1995. At all material times, both were government employees. The defendant worked in the Electrical and Mechanical Services Department, whilst his wife worked in the Social Welfare Department. Both are prescribed officers and public servants for the purposes of the offences under the Prevention of Bribery Ordinance.
In his role as a senior building services engineer, the defendant was responsible for handling and overseeing the tendering and operations of public works contracts of a subdivision of the department. He prepared tender documents, approved contractors’ works, reviewed contractors’ performances, and could influence their tender scores in government tenders.
The defendant pleaded guilty to all six charges on 28 November 2024 at Eastern Magistracy and was committed to the Court of First Instance for sentence. He confirms his pleas and admission of the Summary of Facts.
The facts of Charge 1 are that the defendant and his wife maintained a standard of living above that which is commensurate with their present and past official emoluments between 1 January 2012 and 30 August 2019. In that relevant period, their monthly official emoluments over that 7½-year timeframe totalled, for the defendant HK$9,075,648, and for his wife HK$5,969,964.
During the relevant period, after a thorough investigation of their finances, the defendant agrees that he spent a total of HK$29,725,016 when his identifiable sources of funds, which included his official emoluments, was HK$19,094,771.
Having taken into account other legitimate sources of funds, including personal savings and money gained from the selling of assets, the defendant had an excess of expenditure over identified sources of HK$7,091,011.
In other words, he maintained a standard of living above which is commensurate with his present or past official emoluments and other total known sources of funds earned and received during the relevant period. Over the same period, his wife had an excess of expenditure over identifiable sources of HK$4,812,976.
In total, as a couple, during that relevant period, they spent far more than their present or past official emoluments and identifiable known sources of funds by a total of HK$11,903,987. The defendant agreed this sum represented an unknown source of funds.
The facts of Charge 2 are that the defendant received in his Bank of China account, between 6 January 2012 and 10 October 2018, 127 cash deposits totalling HK$5,227,000.
The facts of Charge 3 are that the defendant received in his HSBC account, between 9 April 2014 and 8 August 2014, three cash deposits totalling HK$252,500.
The facts of Charge 4 are that the defendant received in that same HSBC account, between 17 March 2017 and 21 September 2018, 19 cash deposits totalling HK$782,000.
The amount of cash deposits over these three charges of money laundering total HK$6,261,500. The defendant admits this amount represents the proceeds of an indictable offence and he dealt with the said proceeds.
For the background behind Charges 5 and 6, a Mr Chan Tsz-wing was an integral personality behind them. He was a director and shareholder of Million Engineering Limited (“MEL”), director and shareholder of Great Rising Engineering Limited (“GREL”) and a director-shareholder of Sun Wo Engineering Consultants Limited (“SWECL”). He was intrinsically linked to the defendant and maintained a close personal relationship with him.
On 17 October 2016, the Engineering and Mechanical Services Department awarded a contract worth HK$6.7 million to a company who then subcontracted it to GREL.
On 20 April 2018, the Engineering and Mechanical Services Department awarded a work contract worth HK$84.7 million to a company who then subcontracted it to SWECL. Both contracts were for a period of three years.
In mitigation, I have heard the defendant admits that he frequently socialised with Chan, travelling overseas together regularly, meeting often in Hong Kong and discussing the tendering process of government work contracts with Chan.
All Electrical and Mechanical Services Department staff who deal with any tendering of work contracts are required to sign an undertaking that they have no conflict of interest with any potential tenderer and must actively take steps to avoid any conflict of interest with those tendering. They are to declare any conflict of interest.
Moreover, employees are not to accept any gifts or benefits that may give rise to a conflict of interest. They should not socialise excessively with those that tender for government work contracts, as well as appointed contractors, subcontractors, and suppliers of the department. The defendant admits he was well aware of these requirements, rules and regulations.
At no point did the defendant report to his supervisor that he had a close relationship with Chan. In fact, he signed undertakings for the two work contracts I have just referred to, declaring that he had no conflict of interest with Chan or any potential tenderer for those contracts.
The defendant also informed Chan about the terms of the work contracts at the time of the tendering for that $84.7 million contract. The defendant even signed off on a contractor’s performance report involving an employee or worker who sustained injury in the course of his employment for those companies Chan was connected to. These facts are behind Charge 5.
As for Charge 6, when the defendant was arrested on 28 February 2019, a bundle of cash, specifically HK$40,000, was found in the defendant’s office tied up with a rubber band bearing Chan’s DNA.
The defendant admits that on 17 January 2019, he had lunch with Chan. He paid for lunch and at the same lunch, Chan gave him that HK$40,000. On that same day, the defendant approved three work orders under the HK$84.7 million work contract awarded on 20 April 2018. He admits he accepts an advantage of this sum of cash.
Mitigation
Mr Ho has said all he can possibly say in mitigation on behalf of the defendant. The defendant’s best mitigation is his pleas at the earliest opportunity. Mr Ho does offer reasons for the defendant committing these offences.
His monthly family expenditure meant his salary and that of his wife was insufficient. The reason being mainly because his son was studying in an international school in Hong Kong with high school fees, and his daughter was living and studying in Canada, totally funded by her parents. Essentially, he committed these offences out of greed and a desire to maintain a certain level of lifestyle for the family, which was out of his reach.
He is now 60 years old, born in Hong Kong with, as I have said, two children. They are now 27 and 15 years old. He had a clear record until these offences. He joined the government department after he graduated in September 1991. He progressed up the ranks and became a senior building services engineer in October 2014. He tendered his resignation on 15 July 2024. Although not yet confirmed, he expects to lose his pension.
This will put the family under greater financial pressure. In fact, since his arrest, he has been under financial pressure and has had to turn to his family for help. His mother is 90 years old with ailments and visual and hearing problems. He has two older siblings in Hong Kong.
In December 2021, he turned to the church and has become a devout Christian. He pleaded guilty at the earliest opportunity to express his remorse and express a determination to start all over again for the sake of his family.
His wife faced criminal charges relating to these offences and she was sentenced to 30 months’ imprisonment in August 2023 after a plea in the District Court. She has served her sentence and since been released.
I have been told since his arrest, the defendant has been diagnosed with moderate depressive episodes and on medication. This diagnosis stems from the stress after his arrest, both emotional and financial stress.
In addition, his daughter is suffering from severe depression and has been admitted to hospital for treatment on two separate occasions. Her depression is serious and I have been told of her situation. She is presently unemployed, still in Canada and still relying wholly on her parents. The defendant’s pending prison sentence will add to that stress and burden.
Sadly, it is usually family and close ones who bear the brunt of the consequences of criminal activity. That, however, is not mitigation I can attach much weight to in light of the seriousness of the offences here. I have received many mitigation letters written by the defendant, his children, family, church, friends, and pastors. I have taken into account their contents.
I also take into account the defendant’s fall from grace and more than certain loss of all retirement benefits from a long career. The flaw in his character here was greed and a lack of self-restraint. These are relevant mitigation, but not mitigation I can place too much weight upon, again because of the seriousness of the offences. After all, civil servants, especially those with important jobs such as the defendant’s, must adhere to the rules of transparency, even more so where the works contract can affect the public and public venues.
Sentencing
There are no sentencing guidelines for these offences here. As Mr Ho has pleaded, the severity of a sentence here will depend on the seriousness of the facts. For Charge 1, the maximum term of imprisonment that can be imposed is 10 years.
For Charge 1, Mr Ho has referred me to several authorities where the defendants were civil servants and accused of similar and sentenced for similar offences. Those are not recent sentencing cases, ranging from 1995 to 2016. The prosecution has similarly taken me to old cases dating back to 1985. More recent, serious cases of corruption and bribery are not so common, and that is because the ICAC has fought hard to tackle corruption.
Mr Ho has asked me to consider the amount of money that exceeded the emoluments and other identifiable sources of income between the defendant and his wife, that is just under HK$12 million. It is not an insignificant amount of money, and the length of time the offence was committed was substantial.
A portion of that HK$12 million was laundered through two of the defendant’s bank accounts in the amount of HK$6.26 million.
Charges 2 to 4
HK$3.8 million will be confiscated from the defendant. For this offence under the Organized and Serious Crimes Ordinance, the maximum term of imprisonment that can be imposed is 14 years. Because of the facts of this case, I will take a global approach to these three charges.
For Charges 2 to 4, Mr Ho has referred me to HKSAR v Boma [2012] 2 HKLRD 33, and the non-exhaustive list of features or factors the Court of Appeal has listed when dealing with sentencing money laundering offences.
What is relevant here is the nature of the predicate offence, the state of the defendant’s knowledge, whether there was one transaction or many, and the length of time over which the offence or offences were committed. What is also important is the role of the offender and the acts performed by him. The Court of Appeal has also said that the amount of money involved is relevant, and I refer to HKSAR v Hsu Yu Yi [2010] which was referred to in the Secretary for Justice v Wan Kwok Keung, [2012] 1 HKLRD 201.
For these money laundering charges, I do take into account there is no international element, nor was the offences sophisticated or committed by and on behalf of an organised criminal syndicate. The relevant period is approximately six years, and the amount is HK$6.26 million with, as I have said, HK$3.8 million to be confiscated.
I have taken into account, for Charge 5, misconduct in public office, the maximum term of imprisonment that can be imposed is 7 years’ imprisonment. For Charge 6, a public servant accepting an advantage, the maximum term of imprisonment that can be imposed is also 7 years’ imprisonment.
Mr Ho has referred me to HKSAR v Hui Rafael and Others, FACC 12/2016, where a much more senior government official than the defendant was convicted and sentenced to a total of 7 years and 6 months’ imprisonment after trial of three charges of misconduct in public office and two charges of conspiracy to commit misconduct in public office.
However, Mr Ho is quick to repeat that there are no sentencing guidelines for misconduct in public office and a public servant accepting an advantage. What I will take into account is the amount of money involved in the advantage charge, $40,000, as well as the type of misconduct in Charge 5. Here, the defendant failed to declare his conflict of interest where Chan and his companies were concerned. Those tendering exercises led to work contracts relating to public works, affecting the public and public venues. The defendant helped Chan not only before the contracts were awarded, but also during the course of contracts.
Having given careful consideration to the facts of the case and mitigation I have heard, in my judgment, the starting point of 7 years’ imprisonment is appropriate for Charge 1. A starting point of 4 years’ imprisonment is appropriate for Charges 2, 3 and 4. A starting point of 6 years’ imprisonment is appropriate for Charges 5 and 6.
The defendant has pleaded guilty at the earliest opportunity and therefore is entitled to a full one-third discount for each offence.
After that discount is applied, the defendant is sentenced as follows: Charge 1, 4 years and 8 months’ imprisonment; Charges 2, 3 and 4, 2 years and 8 months’ imprisonment; Charges 5 and 6, 4 years’ imprisonment.
I have taken into account the totality principle, but I have also taken into account Ms Chan’s submission for the Department of Justice that Charge 1, a section 10 offence under the Prevention of Bribery Ordinance, is a very separate and distinct offence to a section 4 offence, Charge 6, and should merit a partly concurrent, partly consecutive sentence. I agree with her submission and intend to deal with the overall sentence in this manner.
I will order the sentences imposed for Charges 2, 3, 4 and 5 to run concurrently to the sentence imposed for Charge 1.
I will order 10 months of Charge 6 to run consecutively to the sentence imposed for Charge 1 and the balance concurrently.
However, I will reduce that 10 months by 3 months to reflect the defendant’s previous clear record and order 7 months to run consecutively to Charge 1.
Therefore, the defendant will serve a total of 5 years and 3 months’ imprisonment.