ATTORNEY GENERAL v. LING KAR FAI

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JUDGMENT

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Litton V-P giving the judgment of the Court:

1. In April 1994 the respondent Mr Ling Kar-fai appeared before Deputy Judge Jenkins in the District Court for trial on 10 charges of corruption contrary to s9(1)(b) of the Prevention of Bribery Ordinance, Cap 201. He was also charged on 19 charges of false accounting. He was acquitted on 6 June 1994 on all the charges.

2. The Attorney-General then appealed against the order of acquittal in relation to the 10 charges of corruption under s84 of the District Court Ordinance Cap 336 by applying to the judge to state a case for the opinion of this court on points of law. This took some time and the matter came ultimately before us in May this year when we made an order in these terms: That the case be remitted to the judge with the direction that he should proceed to deal with the respondents in accordance with our opinion as expressed in our judgment; and if he should proceed to convict (as seemed highly likely) he should pass such sentence as seemed to him appropriate, having regard to the long time elapsed since the commission of the offences.

3. The question which has now arisen is quite simply whether we have the power to make that order. If we do not have the power, then we must reconsider the matter afresh.

4. Section 84(c) of the District Court Ordinance says:

"At the hearing of the appeal, whether or not the respondent appears, the Court of Appeal shall -

5. The effect of our order was to "direct that the trial be resumed" in terms of subsection (ii): resumed, that is, in the sense that the trial judge should consider the verdict afresh in the light of all the evidence and of our determination on the matters of law set out in the Case Stated. But, in A.G. v. Yeung Sun-shun [1987] HKLR 987 - an authority not brought to our attention at the hearing of the appeal - this court gave a narrow construction to s84(c) and held that when the verdict of acquittal had been given after the defence case was heard, this court is not empowered to direct that the trial be resumed.

6. Mr Rodway QC has not submitted to us that we should not follow this authority, giving s84(c)(ii) the effect as construed in Yeung Sun Shun. The result is that, in the circumstances of this case, we must conclude that the order we made - directing that the matter be remitted to the trial judge for consideration - was outside our jurisdiction as conferred under s84(c)(ii).

7. It follows that upon the judge's findings and our view of the law as expressed in our judgment of 21 May this year, we must record a finding of guilt in relation to the 10 charges, which we hereby do.

Sentence

8. The respondent standing now convicted before us, we must now consider what might in all the circumstances of the case be the appropriate sentence to pass.

9. The respondent is 46 years of age and now lives in Canada with his wife and two young children. He has done so for a number of years.

10. He was born in Hong Kong and was brought up by his mother in difficult financial circumstances, his father having died when he was 10 years old. The respondent is a devout Christian and, according to the testimonials placed before us, has taken an active part in recent years in the Christian life of the community in which he lives: that is to say, Richmond in British Columbia. He now makes his living as a driving instructor, lives in rented accommodation with his family earning approximately C$1,300 per month.

11. As can be seen from our judgment of 21 May the matters giving rise to the 10 charges go back nearly 10 years. As a result of the wrongs encapsulated in the 10 charges the respondent was engaged also in civil proceedings brought by his former employer Interlock Holdings Ltd. Mareva injunctions were obtained in British Columbia against both him and his wife, restraining dealings in various properties that they owned in Canada. A consequence of all the proceedings is that the respondent has in fact more than repaid the amounts of the secret profits comprised in the 10 charges. But in the process of the various actions, both civil and criminal, the respondent and his wife has had to realise their assets in Canada including the family home and appears now to be in straightened financial circumstances.

12. The respondent has returned to the jurisdiction voluntarily to face the consequences of the present proceedings and this is the matter which obviously stands to his credit.

13. The offences, as we have said, go back nearly 10 years. He was arrested in January 1991: nearly 6 1/2 years ago. He has therefore been under the strain of legal proceedings for a very long time. The result seems be that his wife has suffered much in health.

14. The circumstances of this case are wholly exceptional. Much of the delay has not been the responsibility of the respondent. We feel that we should take a course unusual in proceedings of this kind, brought under s9(1)(b) of the Prevention of Bribery Ordinance, which normally would result on conviction in an immediate custodial sentence. We say this for this reason: the circumstances of the present case are unlikely to be replicated and any decision we make as to sentence in this matter will provide no guidance to lower courts in relation to their sentencing duties under s9(1)(b) of the Prevention of Bribery Ordinance.

15. Before we deal with the question of sentence proper there are two peripheral matters to be dealt with first:

16. That leaves then the question of the appropriate sentence on the 10 charges for which the applicant stands convicted by this court. In the light of all the circumstances of the case the appropriate sentence on each of those 10 charges would be two years' imprisonment and as they were offences committed as a series it would be appropriate that each of the term of two years on the 10 charges should be served concurrently. However, we also exercise our power to order that the sentences we have imposed be suspended for a period of two years. The effect is this: if for the period of two years the respondent does not commit any further offences then he would hear nothing further in relation to this matter; but if in the intervening two years he should commit other offences then not only would he be liable to be dealt with in relation to those offences but the court would then have power to order that the suspension of the imprisonment we have ordered should be lifted and he may therefore be required to serve the sentences of two years concurrent on the 10 charges which we have imposed.