CHAN KWOK-HING v. R.

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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Nazareth, J.A. (giving the judgment of the Court) :

1. The applicant, Chan Kowk-hing, was on 21st February 1994 convicted on his own plea by His Honour Judge Whaley in the District Court of offering an advantage to public servants pursuant to s.4(1)(a) of the Prevention of Bribery Ordinance. On 25th February 1994 he was sentenced to nine months imprisonment. He sought the leave of this Court to appeal against that sentence. Having heard Mr Albert Sanguinetti who appeared with Mr Selwyn Yu for the applicant on 13th April 1994, we refused leave, and now hand down our reasons.

Facts

2. The applicant was a proprietor and operator of 12 amusement game centres. He offered a bribe of $40,000 to executive officers of the Television and Entertainment Licensing Authority (TELA) for them to grant his application for permission to extend the premises of one of his centres. There was, before the applicant appeared on the scene, a corrupt syndicate operating in TELA, involving a number of its officers. This ring was infiltrated by an ICAC undercover agent (Ho) in November 1989.

3. The applicant was introduced to TELA officers in January 1990. He gave three of them (including the ICAC undercover agent) each a laisee pocket containing $1,000. Later that evening he entertained them at a night-club.

4. In May 1990 the applicant travelled with a group of 5 TELA officers to Macau. The applicant paid for all their expenses in a night-club there, which included the provision of hostesses. Later he paid for accommodation for two of them at the President Hotel.

5. On 4th June 1990 the applicant met Ho at the building in which the applicant wanted to set up a new centre. He asked Ho if the premises would be approved and was told there would be no problem. They then went to a bar where the applicant bought them drinks, and then to one of the applicant's centres, where the applicant gave Ho and another officer some coins to play video games. (The judge commented with reference to the foregoing paragraph that, on its own it would call for little if any comment; it should rather be seen, he observed, as part of the overall pattern of the applicant's actions in buying the favours of the TELA officers.)

6. On 12th July 1990 the applicant met TELA officers outside a bar in Yau Yat Chuen. The applicant approached Ho and said he wished to apply for extension of premises and increase of machines in respect of his centre at Shiu Wo Street. A discussion ensued on the amount of reward money to be paid by the applicant, and the sum of $40,000 was agreed upon, to be paid once the applications had been approved.

7. On 7th August Ho told the applicant he had made arrangements for layout plans to be re-drafted in a way which included the extension of premises that the applicant wanted, which meant the applicant would not be required to submit a separate application for extension of the premises.

8. In subsequent meetings the applicant was also told which machines would be inspected and which irregularities needed to be attended to on "surprise" site visits which would be conducted by TELA officers.

9. On 10th September 1990 Ho telephoned the applicant and asked him to prepare the money.

10. Before the applicant could pay the bribes the ICAC investigation turned overt, and the applicant was arrested.

11. There was no suggestion on those agreed facts that the applicant took the initiative to approach the TELA officers and offer a bribe.

12. Mr Sanguinetti contended first that there were exceptional circumstances which call for a suspended sentence. Second, and alternatively, he contended that the sentence of nine months imprisonment was manifestly excessive in the light of the mitigating circumstances.

13. In his submissions upon his first contention, Mr Sanguinetti pointed to four grounds the judge mentioned which had been advanced by counsel for the applicant below:

Grounds Below

Applicant's Children

14. The applicant has three children, a daughter aged 18, a son aged 13 and a daughter aged 4. His wife has divorced him and did not want custody of the children. Likewise there is no question of grandparents taking custody of them. The eldest daughter is in the United Kingdom; the son is at school in Hong Kong and the youngest daughter is at nursery school, also in Hong Kong. It was submitted that if the applicant was sentenced to imprisonment. the children would have no one to look after them. The judge did not accept that satisfactory arrangements could not be made for their custody and care in the applicant's absence.

Financial Reasons

15. The applicant's commercial success was founded in part on loans totalling $39 million from various banks or secured on real property owned by him, including the family property. It was submitted that it was important that he should be able to generate the income necessary to make repayments on the loans, and that his incarceration would greatly complicate that task and put the family assets at risk. The judge did not consider this ground called for a suspended sentence in principle or upon the facts.

Applicant's Health

16. The applicant has a heart condition for which he spent 45 days in hospital in China in 1992. But nothing has gone wrong since his release from hospital on 29th March 1992. On those facts the judge did not consider that his state of health called for any suspension of imprisonment.

Staleness of the Charge

17. The offence was committed in July 1990. The applicant was arrested in September 1990. On 22nd March 1991 he entered a plea of not guilty. The trial commenced on 6th August 1991. His counsel fell ill and the matter was refixed for 9th March 1992. On that occasion counsel appearing for him sought an adjournment because he had not been given sufficient opportunity to listen to certain ICAC tapes, through no fault of his. The case was refixed for 15th February 1993 but it had to be adjourned again because the applicant was hospitalised in China and not discharged until 29th March 1993.

18. The case was then refixed to commence on 8th February 1994 before His Honour Judge Caird, who discharged himself on the applicant's application on the ground that he had tried another defendant in a connected case.

19. The result of those successive adjournments is that the matter had been hanging over his head for a very long time and, his counsel below pointed out, he has had to pay an enormous sum in legal expenses.

20. The judge observed that none of those delays were caused by the Crown. Before us Mr Sanguinetti disputes that conclusion. However, if the judge was in error, he could not have been significantly so, nor do we think that any such error could have affected his conclusions.

Submissions

21. Mr Sanguinetti submitted that it was not upon the foregoing grounds that he was primarily relying but upon a fact that the judge had pushed into the background. This was that the corrupt syndicate was already in existence prior to the applicant's arrival on the scene, and furthermore that he did not take the initiative to approach the TELA officers and offer a bribe.

22. Mr Sanguinetti then turned to the starting point adopted by the judge in the following passage:

"There is a long line of authorities in Hong Kong going back to 1974 which were considered and consolidated by the Court of Appeal in Lai Yuk-kui v R. [1981] HKLR 91 to the effect that, except in the rarest cases, corruption offences should attract immediate custodial sentences; that the usual minimum term of imprisonment should be 12 months; and that alternative methods of dealing with offenders should be adopted only in exceptional cases."

Mr Sanguinetti strenuously criticises that adoption of 12 months as a guideline of what the minimum should be. He pointed out first that Lai Yuk-kui was not a decision of the Court of Appeal but of the then Chief Justice sitting on his own hearing magistrates appeals. He submits that in any event a single judge of the High Court cannot lay down guidelines contrary to other judge's views and that only the Court of Appeal should do so. He submits that the correct procedure is that Pickering J. adopted in R. v. Wong Yuen-cheung [1974] HKLR 446 at 449 where he said:

"Being reluctant, sitting as a single judge, to lay down policy lines in regard to this particular aspect of sentencing, I have accordingly consulted the learned Chief Justice and others of my brethren who concur in the view that it is opportune to hark back to the comment of this Court ... to the effect that a person who makes a corrupt offer is just as guilty of a criminal offence as a person who accepts that offer and that when the offering stops the back of the problem may well be broken. While it remains true, as we have said in that case, that each case must be considered on its own merits and that there can be no rule of thumb in sentencing, we considered that in regard to cases brought under s.4(1), just as under s.4(2) an immediate custodial sentence is properly the norm unless there are special circumstances ... for imposing some alternative sentence. We emphasise 'the norm'. We are not advocating automatic sentences."

23. Proceeding with his attack upon the guideline in Lai Yuk-kui, Mr Sanguinetti addressed the four authorities cited at p.694 by the Chief Justice in deriving his guideline for the minimum sentence as a custodial term of 12 months. He pointed out that in the AG v. Lee Yuk-hing the two police officers concerned corruptly solicited and received $15, moreover that it was a case of abuse of trust and blatant violation of duty; and that the appellants appeared in person so that it was not a case of value. As to Wong Yuen-cheung v. R., Mr Sanguinetti pointed out that no syndicate was involved. The accused was an employee of a plastic factory. Having been informed by a public officer that some of the factory records were not in order, he corruptly offered $100 as an inducement to assist in regularising matters. Pickering J. held that the sentence of 6 months could not be criticised.

24. In Criminal Appeal No. 1012 of 1975, Lee Sui-luen v. R. the Full Court dismissed the appeal against a sentence of 9 months imprisonment, referring to it as lenient. There is no direct support for a minimum sentence of 12 months, but the judgment does state that "this Court having laid it down that in all but the rarest of cases sentences other than immediate custodial sentences are wrong in principle for offences under s.4 of the Prevention of Bribery Ordinance ... the judge or magistrate should commence his deliberations from the standpoint of an immediate custodial sentence being the norm except in very rare cases."

25. Finally, Mr Sanguinetti pointed out that Ng Tak-shing v. R. CrApp No.56 of 1979 had nothing to do with a bribery offence but was concerned with a conspiracy by revenue officers in the Preventive Service. The only possible. but clearly insignificant, bearing that that judgment could have was its conclusion that as a general rule an accused person with a clear record should not normally be given a deterrent sentence, one of the exceptions to the general rule being cases where there is an element of corruption.

26. We think that the Chief Justice in Lai Yuk-kui was clearly right in the two guidelines he derived from the foregoing and other cases he mentioned, i.e. first, that for s.4 offences an immediate custodial sentence should normally be imposed, whether the offender is a public officer or not; and second, that alternative methods such as a fine, probation or a suspended sentence should be imposed only in exceptional cases where the facts or circumstances of the offender justify it.

27. As to the additional guideline the Chief Justice suggested, that the approach of magistrates should be on the basis that 12 months is the usual minimum imprisonment for s.4 offences, we recognise the strength of Mr Sanguinetti's submissions, particularly as to its authority. However Lai Yuk-kui has been referred in this Court on many occasions such as in AG v. Ki Hon and another [1988 ]2 HKLR 220 without disapproval. That decision was cited to us as authority that three years imprisonment was considered appropriate for a case of very serious corruption which went on over a long period. Here the applicant was convicted of only one offence.

28. We do not consider that the climate in Hong Kong as regards the seriousness of corruption has changed since 1981 so that the principles set out in Lai Yuk-kui should be changed. We would again emphasise, as was done by Pickering J. in R. v. Wong Yuen-cheung, that guidelines on sentencing are not a straight-jacket but we do not consider the judge here was wrong to take an immediate custodial sentence of 12 months as the appropriate level for relatively minor cases of corruption in the public section.

29. Apart from that relating to the adoption by the judge of 12 months as the starting point, Mr Sanguinetti made numerous submissions. All those we carefully considered and do not think it necessary to do more than indicate what some of those were. Thus he pointed to the sentences in AG v. Ki Hon and Another [1988]2 HKLR 220; and AG v. Yukta Bahadur Gurung [1989]2 HKLR 338, submitting that those cases were of a far more serious nature. We did not find ourselves assisted by those cases; the circumstances were significantly different and we were unable to derive any guidance or principle of assistance. Mr Sanguinetti also urged upon us, inter alia, the following matters: the necessity to keep prison sentences as short as possible consistent with punishment, deterrence and protection of the public interest (R. v. Bibi [1980]1 WLR 1193); the consideration of other options before imposing imprisonment (Cheung Ka-man v. The Queen, crApp No.426 of 1969, unreported); the appropriate recognition of the effects of custody involved in undue delay (the Queen v. William Hung, CrApp No.177 of 1992, unreported), here we feel bound to say that the delay while substantial was caused largely by the applicant; that the applicant should not be incarcerated in order to enable him to ensure that repayment continues of the $36m odd in loans that fund his business and thereby the family income (see The Queen v. Fung Hoi-chi, CrApp No.53 of 1983, unreported); that viewed from the present point in time, as in The Queen v. Cheung Yuen-hing (CrApp No.273 of 1985, unreported) in particular regard to the period of imprisonment the applicant has already served, he should be immediately released; and above all, not only that the applicant did not take the initiative in the offence, but that he was not in a position of trust that might otherwise have been abused by the commission of his offence.

30. The foregoing is neither an exhaustive list of all Mr Sanguinetti's authorities, nor a comprehensive recital of his submissions. But at the end of the day the sentence of 9 months for what was a very serious offence remained, in our view, notwithstanding the mitigating circumstances such as they were, a lenient sentence, and plainly neither wrong in principle nor manifestly excessive.

Conclusion

31. It followed that leave to appeal against sentence had to be refused.