THE QUEEN v. WONG TAT-SANG (D2) AND OTHERS

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. On 14th November 1984, in the Kowloon District Court, each of the applicants was found guilty by His Honour Judge Moylan of conspiracy to offer advantages contrary to Common Law and to section 9(2) of the Prevention of Bribery Ordinance. On the following day each applicant was sentenced to 12 months imprisonment. Against such sentences each applicant seeks the leave of this court to appeal.

2. At the time of conviction the applicant WONG Tat-sang was aged 32 years, the applicant PO Kwok-keung 36 years and the applicant CHAN Kam-han 49 years. All three were married and of previously good character. They pleaded guilty. These were matters which the learned judge took into consideration when passing: sentence as was the fact that they knew that both they and the employees of building contractors who received the advantages were acting unlawfully. The total sums used to bribe other defendants amounted to some $150,000 and were paid out over a period of five years to secure the purchase from the applicants, who carried on business in partnership, of metal and hardware. The learned judge suggested that the sentences he passed could be regarded as having a deterrent effect on others who might hereafter similarly be tempted. If what is urged upon us is true and we do not question it even when the applicants set themselves up in business they must have known that they would have to offer bribes in order to secure orders.

3. It was urged on us that in the prevailing atmosphere of corruption in the construction industry the applicants' business, which has now ceased, could not have been sustained without the payment of bribes. But the learned judge felt, in our view quite rightly, that this was no mitigation.

4. Looked at in isolation there are no grounds to interfere with the sentences imposed. There is, however, an unusual factor in relation to these particular applications namely the disparity between the sentences to which we have just referred and those passed on the recipients of the bribes. We would say, without hesitation, that to distinguish between the giver and the receiver of the bribe in terms of-moral culpability is not a profitable exercise and further, having regard to what was, tentatively at least, urged upon us, that we cannot for a moment accept the suggestion that bribery in the private sector is in any way to be regarded as less culpable than bribery in the public sector.

5. Returning to the question of disparities, a number of the recipients of bribes received sentences of between 9 and 10 months imprisonment; which were suspended, while recipients of very small sums were fined. One ricipient in particular, aged 27, who: contested his guilt and had received in all about $l10,000 between 1978 and 1982, was sentenced d to a period of 9 months imprisonment suspended for a period of 3 years. How the learned judge was able to suspend that sentence in the circumstances is by no means clear to us. It would appear that he failed to pay attention to the guidance given by the Chief Justice in LAI Yuk-kui v. R.⁽¹⁾.

6. We have helpfully been referred to a decision of this court, unreported, LEE v. R.⁽²⁾ where it was suggested that this court would not interfere if an apparent disparity of sentence reflected only the greater culpability of one defendant as compared with that of another. In the instant case as already observed, we cannot see a substantial distinction in relation to culpability. Accordingly we feel that these applicants may legitimately feel a real sense of grievance at the sentences passed upon them as compared with the sentence passed upon the particular recipient whom we have mentioned. It is in such circumstances and such circumstances only that we feel it proper to allow the present applications to appeal against sentence; to treat this hearing as the hearing of the appeals and in each case to order the suspension of the periods of 12 months imprisonment for a period of 3 years.

(1)    1981 H.K.L.R. 691

(2)    Crim.App. No. 727 of 1981