HKSAR v. WONG DI CHUN (formerly known as LAU YIN CHUN)

CACC 77/2025 [2026] HKCA 892

On appeal from [2025] HKDC 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 77 OF 2025

(ON APPEAL FROM DCCC NO 299 OF 2021)

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J U D G M E N T

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1.  This is an application for leave to appeal against sentence.  The applicant has already served the sentence.  On 17 December 2024, following a trial before District Court Judge A N Tse Ching (the judge), the applicant (D3 at trial)  was convicted of two charges of conspiracy to commit misconduct in public office.  These offences are contrary to common law, sections 159A and 159C of the Crimes Ordinance (Cap 200), and section 101I(1)  of the Criminal Procedure Ordinance (Cap 221).[1] On 8 April 2025, the judge sentenced the applicant to a total term of 24 months’ imprisonment.   

2.  On 28 April 2025, the applicant applied for leave to appeal against conviction and sentence.  He subsequently abandoned the application in respect of conviction.  He now proceeds only in respect of his application for leave to appeal against sentence.  

3.  At the leave hearing, the applicant appeared in person, having had legal aid refused on 3 June 2025.

The charges

4.  It was alleged that, between 16 July and 23 October 2020, the applicant, as a prisoner at the Tong Fuk Correctional Institution (TFCI), conspired with:

(i)  Yeung King Lun (D1 at trial), being a public official, namely an Assistant Officer I of the Correctional Services Department (CSD), holding the post of Officer-in-charge of the Construction and Maintenance Unit (CMO)  at the TFCI, for D1 to wilfully and intentionally misconduct himself in his public office by “conniving at the unauthorised possession and use of a mobile phone in the TFCI” by the applicant, as a prisoner, and “rendering assistance” to the applicant “in improving the signal reception of a SIM card” used in his mobile phone at the TFCI. (Charge 1); and

(ii)  Lee Ho Wai (D2 at trial), being a public official, namely an Assistant Officer II of the CSD, holding the post of Assistant to the Officer-in-charge at the CMO at the TFCI, and two former prisoners, Cheung Yui Ming (D4 at trial)  and Lam Hon Ki (D5 at trial), for D2 to wilfully and intentionally misconduct himself in his public office by “conniving at the unauthorised possession and use of a mobile phone in the TFCI” by the applicant, as a prisoner, and “introducing unauthorised cigarettes into TFCI” for him. (Charge 2).[2]

5.  D2 and D5 pleaded guilty to Charge 2 and were sentenced by District Court Judge Douglas Yau (as he then was)  on 11 May 2021 to 7 months’ imprisonment and 6 months’ imprisonment respectively[3]. However, the applicant, D1 and D4 proceeded to trial and were each convicted of the respective charges they faced.  The applicant did not give evidence or call any witnesses in contesting the charges.  On 8 April 2025, in the same proceedings as the applicant, the judge sentenced D1 to 18 months’ imprisonment on Charge 1 and D4 to 9 months’ imprisonment on Charge 2.

The brief facts

6.  At all material times, CSD officers on duty were prohibited from bringing personal digital devices, including mobile telephones into TFCI or bringing any unauthorised items for transmission to prisoners.  Under the prison rules, prisoners could receive only authorised items from visitors, which did not include cigarettes or mobile telephones.  They were prohibited from possessing mobile telephones and could contact relatives or friends only by submitting a written request for the CSD to arrange telephone calls.  They could purchase cigarettes with their wages through CSD arrangements, but only two specific brands, “Wealth” and “Gentori”, were permitted.  CSD officers could bring up to 20 cigarettes of other brands for their own consumption in designated areas, but were prohibited from providing cigarettes to prisoners.[4]

7.  At the time of the offences, the applicant was a serving prisoner at TFCI working at the CMO under the supervision of D1 and D2, while D4 and D5 had already been released.[5]  It was discovered that the applicant had used a mobile telephone and two prepaid SIM cards (numbers 5608 7429 and 6598 7379)  to make thousands of calls and send thousands of SMS messages to various people, including D4, D5, and D3’s family and friends.[6] The SIM card number 5608 7429 was also used to place bets and obtain results for the Mark 6 lottery.[7]  During the relevant period, the applicant did not submit any written request to make telephone calls under the prison rules.[8]

8.  On 22 October 2020, the Independent Commission Against Corruption (ICAC), in collaboration with the CSD, conducted a covert operation in which a listening device was planted on D1. 

9.  On 23 October 2020, the operation became overt, and the applicant and the other defendants were arrested.  When intercepted in TFCI, the applicant was found in possession of prohibited items, including a mobile telephone with a prepaid SIM card (number 5608 7429)[9], three packs of unauthorised brands of cigarettes, and several lighters.[10] 

10.  In his video recorded interview, the applicant admitted possessing the seized mobile telephone and two SIM cards[11].  He stated that both D1 and D2 knew he had the mobile telephone and were present when he used it frequently.  He said that he had asked D1 to help improve its signal reception, to which D1 agreed and gave him another SIM card with the number, 6598 7379. Additionally, D2 gave him a charging cable and unauthorised cigarettes.  The applicant also said he had asked “Ah Ki” (D5)  to top up his mobile telephone.[12]  In his messages to D5, he instructed D5 to arrange for “Wai Gor” to buy cigarettes and bring them to him.  He also instructed D5 to ask D2 to obtain another SIM card for him.[13]  

11.  In relation to Charge 1, the covert audio recordings revealed that the applicant displayed the seized mobile telephone to D1.  He stated that he had assembled it.  The recordings also captured him discussing its signal reception and internet access with D1.[14] A search of D1’s residence uncovered a mobile telephone with a SIM card registered in D1’s name, and a paper bearing the handwritten number “6598 7379 CSL”.  The call records of the service provider revealed that calls had been made from D1’s mobile telephone enquiring about the reception of the prepaid SIM card (number 6598 7379).[15] 

12.  In relation to Charge 2, the ICAC officers retrieved from the mobile telephones of the applicant, D2 and D5 SMS messages between the applicant and D5, and the WhatsApp messages between D2, D4 and D5.  The message records showed that, between September and October 2020, the applicant frequently asked D5 to top up his SIM cards.  He also instructed D5 to tell D2 to purchase cigarettes and a prepaid SIM card for him. 

13.  On 4 September 2020, after his release from prison, D4 created a WhatsApp chat group with D2 and D5 as members, in which they discussed telephone calls received from the applicant.  In this group, D5 relayed the applicant’s requests to D2, who subsequently informed D5 when he had purchased the cigarettes.  D4 asked D2 to tell the applicant he had “dealt with $5,000” and had eleven cartons of cigarettes for the applicant.  D2 replied to D4 that he would pass cigarettes to the applicant whenever possible.  He also noted that the applicant was smoking e-cigarettes at the CMO.  D2 suggested telling the applicant to stop calling, but both D4 and D5 disagreed. 

14.  The ICAC investigation also revealed that D2 had purchased cigarettes for the applicant, and D5 and his father had topped up the applicant’s SIM card during the relevant period.[16]

The applicant’s background and mitigation

15.  The applicant was 32 years old, single, and educated to Form 3 level.  He had four previous convictions in 2009 and 2012, including two for trafficking in dangerous drugs and two for possession of dangerous drugs in 2009 and 2012.[17]  On 12 September 2012, he was sentenced in the High Court to a total of 14 years’ imprisonment for one count of trafficking and one count of possession of a dangerous drug.  He committed the present offences while serving that sentence.

16.  In mitigation, defence counsel referred to the sentences imposed on D2 and D5 for Charge 2.  In those instances, the sentencing judge regarded the case as falling within the relatively minor category of the offence of misconduct in public office and adopted a starting point of 12 months’ imprisonment.  Relying on R v Chan Wai Chiu[18]on disparity of sentences, counsel argued for a lower starting point for the applicant.  She submitted that his role was passive and less culpable than that of D1 and D2, who committed the substantive offences of misconduct in public office while he was under their supervision and without authority over them.  She further submitted that there was no offer or acceptance of any advantage, no victim suffered any detriment, and the risk of reoffending was remote.[19]

The reasons for sentence

17.  The judge noted that there were no sentencing tariffs or guidelines for this type of offence, bearing in mind the 7 years’ jurisdictional limit of the District Court.  She observed that, although a starting point of 12 months’ imprisonment had been adopted for D2 on Charge 2, the sentencing judge had not addressed the significance of prisoners possessing and using telephones, which was strictly prohibited.[20]  She highlighted the associated risks as follows:[21]

“Telephones are prohibited in prisons for a number of reasons:

(i)  the possession and use of a telephone by prisoners posed a security risk to the prison;

(ii)  convicted persons are remanded in prison so that they can cut ties with bad elements in society. The possession and use of a telephone inside prison completely defeats that purpose;

(iii)  telephone calls inside prison are arranged by the CSD and are monitored to ensure that prisoners are not continuing with their criminal activities.  The possession and use of a telephone by a prisoner inside prison makes a mockery of that system; …”

18.  The judge took into account the seriousness of D1’s breach of trust as a CSD officer of a higher rank than D2.  She also considered his active steps to facilitate use of the telephone, the fact that the applicant was serving 14 years’ imprisonment, his lack of remorse, and that the conduct was not a one-off incident. Consequently, the judge adopted a starting point of 18 months’ imprisonment for D1.[22]

19.  The judge found that the applicant was the instigator of both conspiracies.  She determined that his culpability was “at least equal to that of D1” and “even graver than that of D2”.  She accordingly adopted the same starting point of 18 months’ imprisonment for each charge.[23]  She said:[24]

“55. I agree with the principles in relation to the disparity of sentences but I wholly disagree with counsel’s submissions:

(1)  As explained above, I take a very serious view of a prisoner’s possession and use of a telephone in prison. It posed a risk to security of the prison and makes a complete mockery of the prison system;

(2)  Charges 1 and 2 are not misconduct in public office. It is conspiracy to commit misconduct in public office. That misconduct in public office involves a breach of trust on the part of D1 and D2 and adversely affects public confidence in the prison system;

(3)  There were two conspiracies in the present case; D1 and D2 were each part of one of the conspiracies, whilst D3 was part of both conspiracies;

(4)  Theoretically, D1 and D2 had authority over D3. However, in the present case, they actually became D3’s willing servants, catering to D3’s whims and demands;

(5)  Not only did D3 involve 2 CSD officers, he also involved 2 other prisoners who have just finished serving their prison sentences;

(6)  D3 was the instigator of both conspiracies. He constructed the telephone; had 2 SIM cards brought into prison for his use; used the telephone to give instructions to D4 and D5, who in turn passed on instructions to D2; gave instructions to D1 to check his telephone reception and to try to improve the same and used the telephone to place bets and obtain Mark 6 results. In other words, D3 was calling all the shots and was the mastermind of both conspiracies;

(7)  D3 committed 2 offences whereas each of the other defendants only committed one offence;

(8)  D3 flouted the law whilst serving a long term imprisonment for serious offences;

(9)  D1 and D2 are likely to lose their jobs, gratuity and/pensions.  D3 has no such loss.”

20.  Taking into account the applicant’s lack of remorse and meaningful mitigation, the judge sentenced him to 18 months’ imprisonment on each charge. She considered the two conspiracies as distinct offences involving different participants.  She found that this warranted wholly consecutive sentences despite their temporal and locational overlap.  Applying the totality principle, she concluded that an overall term of 24 months’ imprisonment was appropriate.  To achieve this, she ordered 6 months of the sentence on Charge 2 to run consecutively to that on Charge 1, resulting in a total sentence of 24 months’ imprisonment.[25]

The grounds of appeal

21.  On 4 November 2025, the applicant filed a written submission advancing two grounds of appeal against sentence.  First, he complains that the judge failed to properly assess his role and culpability and that the starting point of 18 months’ imprisonment for each charge is manifestly excessive.  He submits that his level of involvement was overstated when compared with D1 and D2.  He points to their greater authority and responsibility for supervising and rehabilitating prisoners as CSD officers (Ground 1).  Secondly, he contends that the judge erred in making 6 months of the sentence on Charge 2 consecutive to that on Charge 1, resulting in 24 months’ imprisonment, which he claims is manifestly excessive (Ground 2).

22.  Mr Timothy Chen, for the respondent, submits that the judge properly assessed the respective roles and culpability of the defendants.  He notes the judge identified the applicant as the instigator of both conspiracies, which would have warranted a more severe sentence in view of his overall criminality and the impact of the offences on prison security.  He argues that the judge correctly applied the totality principle.  He further submits that the partly consecutive sentence was justified, given that multiple offences were committed by the applicant involving two prison officers and other inmates. The overall sentence of 24 months’ imprisonment is not wrong in principle, nor manifestly excessive.

Discussion

23.  The Prison Rules (Cap 234A)  are established to manage the safe and orderly operation of correctional facilities while balancing the legal requirements of punishment with the objectives of social reintegration.  One of the primary objectives of the rules is to ensure the safe custody of prisoners and maintain a disciplined environment to protect staff, inmates, and the public.  This includes regulating movement, conducting searches, and prohibiting unauthorised articles.

24.  The judge found that the applicant was the instigator of both conspiracies and detailed his involvement in his dealings with the prison officers and the other prisoners. 

25.  The two conspiracies focused on a period of about three months and would have continued had it not been for the intervention of the ICAC.  The conspiracy under Charge 1 involved a prison officer facilitating the applicant’s possession and use of a mobile telephone.  This enabled him to make numerous communications outside the prison system, contrary to the rules and regulations.  As noted by the judge, this posed a serious risk to prison security and undermined the strict rules in place to maintain security and order within the prison system.  Similarly, the conspiracy under Charge 2 involved another prison officer and two other prisoners facilitating the applicant’s possession and use of another mobile telephone, and also the smuggling of contraband cigarettes.  The judge noted that cigarettes were a valuable commodity within the prison system that prisoners would use to trade amongst themselves.  The applicant was able to make thousands of telephone calls and send thousands of text messages to different people, including communications to the family and friends of the applicant and the other two prisoners.

26.  The applicant complains that the judge exaggerated his role and culpability in the conspiracies. However, it was clear that her assessment of his criminal conduct was based on her findings of fact as set out in her reasons for verdict, which the applicant does not challenge having abandoned his leave application against his convictions.  He sought to downplay his role and involvement in the conspiracies, which was contrary to the evidence and the judge’s findings of fact.  He also complains that he should not have received a more severe sentence than the prison officers.  He argues that they breached their public duty and undermined the reputation of correctional services.  The judge adopted the same starting point of 18 months’ imprisonment after trial for the applicant and the prison officer, D1.  The other prison officer, D2, had been sentenced to 7 months’ imprisonment after he had pleaded guilty and before another judge.  As the judge observed, D1 was more senior than D2. Furthermore, the other judge had not addressed the significance of the use of telephones and the smuggling of contraband contrary to the present rules. 

27.  The two conspiratorial enterprises were clearly at the instigation and for the benefit of the applicant, involving him in corrupting two corruptible prison officers in order to breach the prison rules.  His goal was to facilitate communications outside the prison system and to smuggle contraband cigarettes into the prison.  The judge correctly identified this as a very serious matter, posing a serious risk to the discipline and security of the prison.  Furthermore, it involved a serious breach of trust on the part of the prison officers, adversely affecting public confidence in the prison system. 

28.  In the circumstances, there was justification for the judge adopting a starting point of 18 months’ imprisonment in respect of each charge.  There were no mitigating factors that warranted a reduction to the starting points.  The judge considered the nature and scope of each conspiracy and properly concluded that they were separate and distinct.  She applied the totality principle and made 6 months of the sentence in Charge 2 consecutive to the sentence in Charge 1, resulting in a sentence of 24 months’ imprisonment.

29.  The judge provided a comprehensive set of reasons for sentence, setting out the factual basis for sentencing and explaining her approach according to the relevant sentencing principles. 

30.  I am not persuaded that the grounds of appeal against sentence are reasonably arguable in light of the nature and seriousness of the offending involved.

31.  The application for leave to appeal against sentence is refused.

32.  The applicant is reminded of his right to renew his application for leave to the Court of Appeal, but he is also informed of the consequences of doing so, which may include a direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of his application.