THE QUEEN v. LIU KAM-HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1023 OF 1989

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BETWEEN

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J U D G M E N T

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1. This appellant and another (referred to as D1) were originally charged together, but in different counts, under section 9 of the Prevention of Bribery Ordinance, Cap.201 : D1 with offering an advantage contrary to s.9(2)(a) and the appellant in the second charge with accepting an advantage contrary to s.9(1)(a).

2. Separate trials were ordered and the two accused were dealt with by different magistrates.

3. D1, who had pleaded not guilty, was convicted after trial and sentenced to pay a fine of $5,000.00 and ordered to pay costs in the sum of $5,000.00.

4. The appellant pleaded guilty to the offence of accepting an advantage. He was sentenced to nine months' imprisonment. He appeals on the ground that his sentence is excessive in all the circumstances and the disparity is so glaringly unjust as to leave a deep sense of grievance in the appellant.

5. According to the facts which were not in dispute, D1 was the proprietor of a construction firm, while the appellant was a project manager of a water and drainage company. In July, 1986, the appellant's company subcontracted a project of drainage work valued at about $1.18 million to D1. In October, 1988, a director of the appellant's company suspected that D1 had been overpaid. He ordered D1 to terminate the subcontract and submit a detailed account to the appellant for settlement. The account having been submitted, the appellant informed D1 that a preliminary examination revealed that about $230,000.00 had been overpaid to D1. On or about the 2nd November, 1988, D1 approached the appellant and requested him to settle the account in such a way that the amount of over payment could be reduced to the minimum, thus resulting in D1 being able to refund less. D1 offered to give an unspecified sum of money to the appellant as his reward for manipulating the settlement of the account. The appellant agreed and haggled with D1 over the amount. Eventually it was agreed between the two of them that an amount of $40,000.00 would be given to the appellant. On the 3rd November, 1988, D1 reported to the ICAC and a meeting for payment was arranged over the telephone, the conversation being tape recorded. On the following day, D1 and the appellant met in a restaurant and the appellant accepted, as had been previously arranged, $17,000.00 in cash and two post-dated cheques totalling $23,000.00. He was then arrested.

6. In considering the appropriate sentence, the learned magistrate had regard to Lai Yuk-kai v. R., (1981) H.K.L.R. 691, where Roberts, C.J., suggested some guidelines for offences under section 4 of the Ordinance, the same principles applying also to offences against sections 5, 6, 7 and 8. The learned Chief Justice expressed no views as to "appropriate sentences for offences against sections 3 or 9 which involve a wider range of moral culpability". He went on to say :

"The imposition of deterrent sentences on those who are convicted of bribery is an important, factor in the community's efforts to eradicate corruption."

7. The sentencing magistrate also had regard to a comment made by Kempster, J.A. in Wong Tat-sing & Another v. R., Criminal Appeal No. 529/84 :

"We cannot for the 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."

He also directed his mind to the issue of disparity and regarded R. v. So Hung-lee and Another, (1986) H.K.L.R. 1049 as authority for the proposition that he was at liberty to impose what he regarded as "an appropriate sentence on the appellant without being unduly influenced by the sentence passed on the first defendant."

8. Earlier the learned magistrate had considered the factors which were in the appellant's favour : that he had a clear record, that he had admitted to the elements of the offence at the earliest opportunity, that he had pleaded guilty which entitled him to a reduction in the sentence, he had succumbed to the offer of another person and that the matter had been hanging over his head for a substantial period of time.

9. In imposing the sentence that he did, the learned magistrate was influenced by such factors as the seriousness of the offence, that the appellant was far from being an unwilling participant in the proposed scheme, that he abused a position of trust which would cause immediate financial loss to his employer and that the amount involved was substantial.

10. Learned counsel for the appellant, Miss Esther Toh, referred to a number of English authorities on this issue of disparity. In So Hung-lee & Another. v. R., (supra), the Court of Appeal was of the opinion that as reference to the English cases on disparity showed that there were conflicting decisions, "in the circumstances it is not necessary or indeed desirable to cite any of them." As such, the principles to be applied are those which the Court of Appeal has there laid down for the consideration of disparity in sentences in the two different and distinct situations : first, where there is a disparity between sentences on the same occasion by the same judge in which case the sentence would be varied by an appellate court "if, and only if, it can be shown that the judge has not properly apportioned the blame between the accused. If the sentence was otherwise appropriate and the judge was under no misapprehension of the roles of the various accused, then the sentence should stand." As was pointed out, it was in that context that the case of WONG Tat-sing & others v. R. (supra), which was also mentioned before me, is explainable; secondly, when different sentences are passed on different accused for the same offences by different judges on different occasions, "the only consideration must be whether the sentence passed on the appellant was appropriate."

11. The instant appeal falls under the second situation. It is argued for the appellant that the sentence is excessive. The learned magistrate considered various factors that entered into his deliberations, none of which is criticized. In my opinion, he was perfectly entitled to take all those matters into account in fixing the sentence. And I think that he quite properly, having appraised himself of the sentence passed on D1, disabused his mind of any considerations which might have led to that sentence being imposed, and went on to consider what was appropriate in the circumstances pertaining the man whose case he was dealing with.

12. In all the circumstances a sentence of nine months for such offence was just and fair.

13. This appeal is dismissed.