R. v. NG SHEUNG CHUN

IN THE COURT OF APPEAL

1993, No. 3

Application for Review

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, J.A.:

1. This is an application by the Attorney General for review of two concurrent sentences of twenty months' imprisonment suspended for three years which were imposed on a respondent on 10 March this year by Mr. Z.E. Li, sitting as a deputy judge of the District Court, in respect of one offence of conspiracy to offer advantages to public servants contrary to Common Law under section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 and one offence of conspiracy to accept advantages contrary to Common Law under section 4(2)(a) of that Ordinance. The Attorney General contends that the sentences are wrong in principle and manifestly inadequate.

2. The respondent had been charged with five offences. All of which related to the same course of conduct. He pleaded guilty to the two offences in respect of which this application is being made. They were the third and fifth charges. The prosecution offered no evidence on the other three charges. Leave to make the present application was granted by the Chief Justice on 31 March.

3. The particulars of the offences set out in the two charges were as follows:

Third Charge : "NG Sheung-chun, between the 1st day of December 1991 and the 8th day of February 1993, in Hong Kong conspired with Cheung Sai-hung, Li Chi-wah and other persons unknown, without lawful authority or reasonable excuse, to offer advantages, namely gifts, fees or rewards of sums of money to public servants, namely serving officers of the Customs & Excise Department, as an inducement to or reward for or otherwise on account of the said Customs Officers performing acts in their capacities as Customs Officers, namely, arranging or assisting the unimpeded clearance of unmanifested cargo from Hong Kong to the People Republic of China through checkpoints controlled by the Department of Customs and Excise."

Fifth Charge : "Ng Sheung-chun being a public servant, namely a Customs Officer in the Customs and Excise Department, between the 1st day of December 1991 and the 8th day of February 1993, in Hong Kong, conspired with CHEUNG Sai-hung and other persons unknown, without lawful authority or reasonable excuse, to accept advantages namely gifts, fees or rewards of sums of money "from the said CHEUNG Sai-hung as an inducement to or reward for or otherwise on account of the said NG Sheung-chun performing acts in his capacity as a Customs Officer, namely, arranging or assisting the unimpeded clearance of unmanifested cargo from Hong Kong to the People's Republic of China through checkpoints controlled by the Department of Customs and Excise."

4. The summary of facts of the case which were agreed and signed by counsel for the prosecution and counsel for respondent were these:

" The defendant was employed as a Customs Officer in the Customs and Excise Department, Hong Kong Government, during the material period.

2. In December 1991, in Shatin, the defendant met a colleague who was a Senior Customs Officer and who asked him (the defendant) if he was interested in earning extra money. The defendant, at that time was posted at Mankamto Control Point and was responsible for checking the manifest and other documents of vehicles passing through the control point. The colleague asked the defendant to assist him in ensuring that some of the vehicles destined for the People's Republic of China would cross the control point without question or interference. The colleague said they could obtain $3,000 to $5,000 for allowing each vehicle to pass through unimpeded.

3. A few days later, this colleague introduced a person known as Ah Sha (whom the defendant later learnt was CHEUNG Sai-hung) to the defendant. They discussed using vehicles to carry electrical goods to the People's Republic of China with the assistance of the two Customs Officers (including the defendant). From that moment on the defendant and his colleague arranged the passage of Ah Sha's vehicles to cross the border knowing that they carried unmanifested goods. Ah Sha paid them sums of money as a reward for arranging or assisting the unimpeded clearance of the unmanifested goods.

4. The defendant was transferred to Lokmachau Control Point in May 1992 and he was informed that Ah Sha wished to export unmanifested goods through Lokmachau as well. He agreed to recruit other Customs Officers who would assist Ah Sha for reward. The defendant approached Senior Inspector Li Chi-wah (LI) and invited Li to join their activities. Li asked for $5,000 per vehicle which was agreed to by Ah Sha.

5. In early July 1992, together with Li, the defendant had arranged on a number of occasions for Ah Sha's vehicles to cross the border without being subjected to any Customs check. The defendant later approached and recruited other Customs officers to join in these activities including, NG Cheuk-wing and WOO Sin-man. Towards the end of 1992, Ah Sha told the defendant that the unmanifested goods being smuggled included vehicles.

6. Between the period from December 1991 and February 1993, the defendant had received personally not less than $80,000 from Ah Sha. On a number of occasions, the money was collected directly by the defendant from Ah Sha, and sometimes it was given to him by a colleague.

7. The defendant has hitherto co-operated with the ICAC and has provided information with respect to it's ongoing investigations."

5. In the course of her address in mitigation, counsel for the respondent produced a certificate of service signed by the Secretary of the Customs and Excise Department in which he stated the respondent had been employed by the Hong Kong Government as a Customs Officer from 6 July 1981 to 22 February 1993, that his salary on 1 February 1993 was $11,635 per month, that his performance in the Customs and Excise Department from the commencement of his service until 31 March 1990 had generally been very good, and that his overall performance from 1 April 1990 to 31 March 1992 had been exceptionally efficient and effective. Counsel had informed the deputy judge that the respondent's wife suffered badly from asthma, that their six year old daughter and 17 month old son had both inherited the affliction from their mother, that the son had been subjected to frequent attacks within the previous six months and that the daughter's most recent attack had been in 1993.

6. Counsel submitted medical reports, one of which was from a doctor in the faculty of Medicine at the Chinese University of Hong Kong stating that the respondent's wife had been admitted to the intensive care unit of Prince of Wales Hospital on 30 May 1992 with a life-threatening attack of asthma but that after therapy and regular out-patient care her condition had become fairly well controlled by the 7 January 1993. The other reports related to the two children. The illness of his family members, said counsel, had placed a heavy burden on the respondent, who was paying $300 for each medical visit and was contributing $4000 to his mother's upkeep. Counsel also told the deputy judge that the respondent had wanted "to get out but he could not and was threatened", that did not know the vehicles were involved in the smuggling operation until 1992 and that he had cooperated fully with officers of the ICAC and had thereby saved the court's time and helped in the investigation.

7. In passing sentence on the 10 March the deputy judge said:

"This is a very sad case and it gives me much pain in having to sentence a man who has, according to his service record, given generally good service for 10 years for the community.

I consider that although the Defendant, according to these charges, conspired with others, it is clear that the brain and controller of the conspiracy is the one senior in rank, not this Defendant. For that reason, although in no way trying to condone this Defendant, I think he was somewhat forced by circumstances in his work place and his peers and superior to take part in the conspiracies. In these circumstances, I use 30 months as starting point for each offence, given him 1/3 discount for guilty plea, hence 20 months for each offence and I order that they run concurrently.

The Defendant has well documented tragic personal family circumstances, bearing in mind the suffering of the Defendant, wife and his 2 children, as an act of mercy, I will take a risk of appeal against me, I suspend the Defendant's sentence terms for 3 years. Rely on Lai Yuk-kui - authority."

8. On the 15 March the deputy judge prepared Reasons for Sentence consisting of seven pages of reasons in which he both greatly expanded the reasons that he had given in court on the day of sentencing and gave additional reasons. We pause here to observe that this is a practice of which this court expressed its disapproval in R. v. Lo Shut-foo C.A. 521 of 1991 (unreported). In the course of his Reasons for Sentence he was at pains to compare the role played by the respondent with the criminality of Senior Inspector LI Chi-wah (named as a co-conspirator in the third charge) who had pleaded guilty to two substantive offences, one against section 4(1)(a) of the Prevention of Bribery Ordinance and the other against section 4(2)(a) of the Ordinance and had been sentenced to concurrent terms of two years immediate imprisonment. He said at p.5 of the Reasons for Sentence:

"In the present case, Inspector Li was not just a co-conspirator. He in fact recruited this defendant into the first conspiracy. He negotiated and agreed the "price" for the "services" to be rendered by the Customs men at the Mankamto and Lokmachau Control Points. He was a commissioned officer compared with the defendant who is the lowest among the rank and file. It is clear that he was the brain and controller on the Customs side of the conspiracies."

9. This assertion was both wrong and contrary to the agreed summary of facts. Senior Inspector Li had not recruited the respondent. It was the respondent who had recruited Senior Inspector Li. Furthermore, since Senior Inspector Li did not come into the picture until after the respondent was transferred to Lokmachau, it was erroneous to say that it was clear that Senior Inspector Li was "the brain and controller on the Customs side of the conspiracies". It is also apparent that Senior Inspector Li is not named as a co-conspirator in the second of the charges, the fifth charge, to which the respondent pleaded guilty. The first charge to which Senior Inspector Li pleaded guilty was one of offering advantages to a Customs Officer on a day between 1 August 1992 and 20 September 1992 as a reward for arranging the unimpeded clearance at Mankamto of vehicles containing unmanifested goods. This offence was committed after the respondent had been transferred to Lokmachau.

10. The second charge to which he pleaded guilty was one of accepting an advantage on or about 10 December 1992 of $25,000 from Cheung Sai-hung as a reward for arranging or assisting the unimpeded clearance of unmanifested cargo namely electrical goods and vehicles through Lokmachau Customs Control Point. It hardly needs stating that both Senior Inspect Li and the respondent could only be sentenced on the basis of the respective charges laid against them and their admitted conduct. The deputy judge also said in his Reasons for Verdict:

"Since both conspiracies essentially overlap in time and in terms of object, the sentence of each conspiracy offence should run concurrently."

11. This, however, overlooked the fact that the allegation made in respect of the conspiracy which was the subject of the third charge was that the respondent and his co-conspirators conspired to corrupt other Customs officers, whereas the conspiracy alleged in the fifth charge was to accept advantages from CHEUNG Sai-hung. It is one thing to engage in the corrupt acceptance of advantages but entirely another to corrupt fellow officers. Moreover, in coming to the conclusion that the sentences should be suspended the deputy judge said:

"For corruption cases, both in Lai Yuk-kui v. The Queen [1981] HKLR 691 and in A.G. v. TSANG Wai-kwong. A.R. 2 OF 1985 higher courts have indicated that in exceptional cases, a lighter sentence or suspension of a custodial sentence may be appropriate. Indeed, in A.G. v. TSANG Wai-kwong, the Court of Appeal cited with approval the case of A.G. v. LEUNG Hung-hang, Application for Review No. 19 of 1983, wherein Sir Alan Huggins suspended the custodial term for a corrupt prison officer on the ground that the officer's girl friend was pregnant and that it was desirable that the child should be legitimated."

12. With the greatest of respect to the deputy judge that is not what happened in Leung Hung-hang. Indeed, it was quite the reverse. The Attorney General there sought a review of a sentence of 12 months' imprisonment suspended for three years passed on a prison officer for accepting $1000 from a prisoner as a reward to supplying him with cigarettes. This court held that such a sentence was inappropriate and that a proper sentence was an immediate custodial sentence of 12 months. The court went on to discount that sentence by three months on account of the fact that it was an application for review of sentence, and by a further three months to allow the offender to be released in time to marry his girl friend before the child she was bearing to him was born. We would observe, with respect, that this later concession was an old fashioned gesture of gallantry that would seem to be quite out of place in today's world.

13. However, not only was the deputy judge wrong in his understanding of what sentences were initially passed by the magistrate and ultimately passed by this court in Leung Hung-hang, but it is abundantly plain that the offences committed by the respondent in the present case were of far greater gravity than that committed by the prison officer whom the court said was deserving of an immediate custodial sentence of 12 months' imprisonment.

14. Indeed, in Tsang Wai-kwong, the case which referred to Leung Hung-hang and of which the deputy judge also placed reliance to justify the position of suspended sentence, this court stated that the usual minimum sentence for an offence against section 4 of the Prevention of Bribery Ordinance was 12 months' imprisonment.

15. It is true that the court cited with apparent approval a passage from the judgment of this court in The Queen v. Ng Tak-shing Cr. App. 56 of 1979 in which it was said that the guideline laying down that the minimum sentence of 12 months' imprisonment should not be construed as interfering with the usual discretion of the magistrate to impose a lesser or greater sentence when the circumstances justified such a course, and that the court then went on to say that that passage related to sentences for section 4(1) and 4(2) corruption offences.

16. But in our view sentences other than immediate custodial sentences for such offences can only be justified in wholly exceptional circumstances. Furthermore, we think it is clear that the court in that case did not intend that this latitude in departing from the guidelines should extend to the suspending of sentences for corruption offences of a serious nature. The very fact that the court stated that the two concurrent sentences of four months' imprisonment for two offences committed by a prison officer in which he received sums of $400 as a reward from a prisoner's mother for granting favours to the prisoner, such as buying him chocolates and cigarettes, were manifestly inadequate and that such offences should attract sentences of 12 months' immediate imprisonment, amply demonstrates the view that this court takes of corruption offences.

17. The offences committed by the respondent were far graver than those committed by the prison officer. Mr. McCoy, who appeared for the respondent in this court but not in the court below, frankly conceded at the very outset of this hearing and that he was unable to uphold the deputy judge's order that the sentences be suspended, and readily acknowledged that the offences demanded immediate custodial sentences. He submitted, however, that the length of the sentences should not be disturbed.

18. We have no hesitation in saying that suspended sentences for offences of this gravity were completely inappropriate. We repeat that it is only in the rarest of cases whose circumstances are wholly exceptional that such a course is justified.

19. These were extremely serious offences by reason of both their nature and the protracted period over which they occurred. Irrespective of the respondent's personal and family circumstances, they required the imposition of substantial immediate custodial sentences. Had he been convicted after a contested trial, an overall sentence of six years' imprisonment would have been proper. However, since the respondent pleaded guilty and since this is an application for review of sentence, we would give a discount of two years.

20. We therefore allow the application, set aside the sentences imposed by the deputy judge and, in order to give effect to the totality principle, substitute for the sentence passed on the third charge a sentence of three years' imprisonment, and for the sentence passed on the fifth charge a sentence of two years' imprisonment, the first twelve months of which is to be served concurrently with the sentence on the third charge. The overall sentence is therefore one of four years' immediate imprisonment.