HKSAR v. PANG CHUN KIN

DCCC 937/2020

[2021] HKDC 841

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 937 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant is charged with 5 charges. After the defendant pleaded guilty to and convicted on Charges 1, 3 and 4, the prosecution agreed not to proceed with Charges 2 and 5 against the defendant and those 2 charges are to be kept on court file.

2.  For the 3 charges the defendant pleaded guilty to, under Charge 1 and 3 he is charged for Conspiracy for an agent to accept advantages, contrary to sections 9(1)(a)  and 12(1)  of the Prevention of Bribery Ordinance, Cap 201 and sections 159A and 159C of the Crimes Ordinance, and under Charge 4, he is charged for being an agent accepting an advantage, contrary to sections 9(1)(a)  and 12(1)  of the Prevention of Bribery Ordinance, Cap 201.

3.  The amended summary of facts read and admitted by the defendant and upon which the defendant is convicted for charges 1, 3 and 4, the gist of which is as follows.

4.  At all material times:-

Tesco PLC was a multinational groceries retailer listed on the London Stock Exchange;

Tesco International Sourcing Limited (“Tesco Sourcing”)  was a subsidiary of Tesco PLC incorporated in Hong Kong;

Tesco Stores Limited (“Tesco Stores”)  was a subsidiary of Tesco PLC incorporated in the United Kingdom;

The defendant was the sourcing manager of the sourcing team of Tesco Sourcing and was responsible for sourcing toy and nursery products, placing orders and coordinating logistics with the suppliers; and

Zsolt Gergely Kovacs (“KOVACS)  and Ladislav Gajdos (“GAJDOS’)  were respectively the senior buying manager and buying manager of Tesco Stores and were stationed in the UK and responsible for making purchases based on recommendations made by the sourcing team of Tesco Sourcing.

5.  Handwin Toys Industrial Company Limited (“Handwin”)  was an approved supplier of toys and had been one of the largest suppliers of Tesco Sourcing. Zhu Shuzhuang was the sole shareholder and director of Handwin, whilst Chen Jinqun (“CHEN’)  was the operator and person-in-charge of Handwin.

6.  In December 2018, Tesco Sourcing conducted an internal investigation, during which two Excel tables (“Table A” and “Table B”)  and name cards of the defendant, in the post of merchandising manager, and KOVACS, in the post of general manager, of Tonic Asia Limited were found in the backup of the defendant’s official laptop computer.  Table A and B showed: (a)  orders placed by Tesco Sourcing with Handwin; (b)  the amount of each order; (c)  the amount payable by Tesco Sourcing to Handwin; (d)  the percentage of bonus; (e)  the amount of bonus; (f)  date; and (g)  the amount actually received by the defendant.  All the amounts were in United States currency (“USD”).  On 15 May 2019, the defendant was dismissed by Tesco Sourcing.

7.  On 10 January 2020, the defendant and KOVACS were arrested.

8.  Under caution, the defendant admitted, in gist:-

9.  He joined Tesco Sourcing in October 2006 as assistant merchandiser.  He worked his way up to the post of sourcing manager in 2015 until he was dismissed for accepted rebates and loans from CHEN of Handwin.

10.  He was responsible for placing orders for toys and miscellaneous items with suppliers designated or agreed by KOVACS.

(i)  In 2011, in order to obtain funding to start a business with the defendant, KOVACS suggested soliciting rebates from Handwin for CHEN was an easy-going person. The defendant solicited rebates from CHEN. Upon solicitation, CHEN agreed to pay rebates in the sum of 3% of the amount of the order placed by Tesco Sourcing with Handwin. CHEN had offered rebates to the defendant and to KOVACS (and also later to GOJDOS)  by bank transfers made to the defendant’s personal account in HK from 2011 to 2017. The amount of rebates offered by CHEN was later reduced to 1% or 2% because of the drop of the orders placed by Tesco Sourcing. The defendant prepared Table A and B, which showed the amounts of rebates offered by CHEN and the amounts shared by him, KOVACS and GOJDOS.

Charge 1

(ii)  Between 23 March 2011 and 21 October 2014, the total sum of business transactions between Tesco Sourcing and Handwin was USD 17,629,927, out of which USD 15,959,245 was based on to calculate the 3% rebate because according to CHEN special discount was granted to Tesco for part of the orders.

(iii)  Bank records showed between 23 March 2011 and 21 October 2014, a total sum of USD 472,000 was transferred from the bank account of Handwin to the defendant’s bank account. The defendant admitted that he would share the rebates equally with KOVACS and would give the rebates in cash to KOVACS when KOVACS visited HK. The details of the rebates are shown in Table A and bank records.

(iv)  The defendant further admitted that in addition to the above bank transfers, CHEN also offered USD 20,160 as extra bonus to the defendant and KOVACS in 2012 for the orders placed with Handwin by Tesco Sourcing, and USD 7,742 cash in the form of red packets to the defendant and KOVACS. As such, the total bribes offered by CHEN to the defendant and KOVACS between 23 March 2011 and 21 October 2014 was USD 499,902 (472,000+20,160+7,742).

(v)  Out of the said extra bonus of USD20,160, USD10,000 was given to KOVACS by CHEN for KOVACS’s trip to Shanghai in 2012. For the remaining USD 10,160, the defendant kept USD 5,160 whereas USD 5,000 was given to KOVACS. The defendant did not share USD 160 with KOVACS. Hence, out of USD 499,902, the defendant had kept a total sum of USD 245,031 and KOVACS had accepted a total sum of USD 254,871.

Charge 4

(vi)  The defendant admitted that in about March 2015, the defendant had, in his capacity of an agent of Tesco Sourcing, borrowed USD 100,000 from CHEN. Bank records and Table A showed that the said loan was deposited into the defendant’s bank account from the bank account of Handwin on 25 March 2015.

Charge 3

(vii)  Between 9 February 2017 and 27 January 2018, the total sum of business transactions between Tesco Sourcing and Handwin was USD 3,044,848. For CHEN had granted special discount to Tesco Sourcing for part of those orders, hence CHEN considered only the total sum of USD 3,016,211 should be subject to rebate at 1-2%. The total rebate should be USD 60,919.65. As the defendant still owed CHEN money, upon the defendant’s request, CHEN only paid GAJDOS’s share to the defendant to be pass onto GAJDOS.

(viii)  For the orders of “Spring/Summer 2017 UK & Central Europe”, a sum of USD 15,919 being the share of GAJDOS was transferred from the bank account of Handwin to that of the defendant. The defendant admitted he paid GAJDOS the sum in cash when GAJDOS visited HK. The defendant’s share in the sum of USD 15,000.65 was set off by CHEN as partial repayment of money owed to him by the defendant.

(ix)  For the orders of “Autumn/Winter 2017 and Spring/Summer 2018 UK & Central Europe”, the defendant admitted that upon his request, the entire rebate amount of USD 30,000 was set off by CHEN as partial repayment of money owed to him by the defendant. The defendant later paid GAJDOS’s share in the sum of USD 15,000 out of his own pocket in cash when GAJDOS visited HK.

(x)  The details of the rebates are shown in Table A and bank records.

RECORD

11.  The defendant has a clear record.

MITIGATION

12.  Personal Background

He was born in HK, now 39 years old. He is married with no children. He had worked in 3 logistics and trading companies from 2003 onwards and whilst working he obtained his Master Degree (MSc)  in Global Supply Chain in 2013. He was married in 2013. Prior to his dismissal on 15 May 2019, he was in the post of sourcing manager earning a monthly salary of HKD 51,000. He now works as a part time Uber driver with unstable income. His wife works in an insurance company and is now the main provider for the family. He used to provide financial assistance to his parents, who are divorced, but cannot continue in his present impecunious position. His father is 75 years old, a retired taxi driver, now relies on his own past savings and has prostate cancer. His mother aged 68 is working as a part time cleaner and also has colon cancer.

13.  Cause of committing these offences

Financial strain and greed was the cause. From the onset in 2011, he had suffered loss in his investment in the stock market. KOVACS, his then superior from the UK office, was the instigator and he went along with the suggestion to solicit rebates from CHEN. Subsequently GAJDOS joined in the conspiratorial agreement. These three, together with CHEN were partners-in-crime.

14.  Mitigating Factors

(a)  The defendant pleaded guilty at the earliest opportunity thereby saving valuable judicial time, expenses and inconvenience for all parties concerned. He has a clear record and is a first offender;

(b)  He is a family orientated person. He enjoys harmonious relationship with his wife, an “extraordinary filial son”, attached and devoted to his parents’ health and daily lives;

(c)  He is extremely remorseful for the offences committed. Throughout the entire employment period with TISL, he had no other improper misconduct, he always did his very best for the company, proactive in looking for and expanding business opportunities for the company, the qualities and standard of the merchandise and goods supplied by HANDWIN to TISL were not affected and he carried out his employer’s orders and decision faithfully.

(d)  When the defendant was confronted by the investigators from TISL in May 2019, he frankly confessed his misdeeds without reservations. He instantly agreed to fully cooperate with TISL by exposing the misdeeds of his co-conspirators.

(e)  Upon arrest by ICAC on 10.1.2020, he admitted the offences and fully co-operated with the investigation. During investigation, he further fully and frankly disclosed all his assets, his incomes and expenditures, particularly on one HSBC bank account now under restraining order.

(f)  He realistically accepts that imprisonment is inevitable. He has no chance to re-offend even after he has served his jail term, as his employment prospect in logistics and trading is in ruin. His general personal reputation and credibility are in tatters, which is widely known among his friends, social circles, business associates and even the neighborhood. His parents are heart-broken and show signs of great discomfort and distress, both physiologically and mentally. This is a stain amongst his relatives and the neighbours, as his family background is grass-root related and has been well respected. He accepts this stigma with shame, regret and extreme sadness. However, he yearns to turn a fresh page after serving sentence.

(g)  The defendant submitted to the court letters for mitigation from himself, his wife, his mother, colleagues including his former superior in TISL, and his classmates.

Consideration on Sentence

15.  Charges 1,3 and 4 are brought under sections 9(1)(a)  and 12(1)  of the Prevention of Bribery Ordinance, Cap 201 whereas Charges 1 and 3 are also brought under sections 159A and 159C of the Crimes Ordinance, Cap 200.

16.  Section 9(1)(a)  of the Ordinance provides that: Any agent who, without lawfully authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his doing or forbearing to do or having done or forborne to do, any act in relation to his principal’s affairs or business, shall be guilty of an offence.

17.  Section 12(1)  of the Ordinance provides that: Any person guilty of an offence under this Part, other than an offence under section 3, shall be liable, for any other offence under this Part, to a fine of $500,000 and to imprisonment for 7 years and shall be ordered to pay to such person or public body and in such manner as the court directs, the amount or value of any advantage received by him, or such part thereof as the court may specify.

Consideration:

(a)  The corrupt practice in the present case lasted for some 7 years in total from the time it started in March 2011 up to January 2018, the total amount involved under Charges 1 to 3 is USD 660,821.65 (equivalent to HKD 5,154,408.87 at the exchange rate of 7.8). Out of this sum, the amount retained or benefited by the defendant was USD 390.031.65 (equivalent to HKD 3,042,246.87).

(b)  KOVACS may well be the instigator of soliciting rebates from Handwin, in terms of culpability, my view is the defendant and KOVACS were more or less on equal footing in their respective roles as indicated by their sharing of the rebate paid by CHEN.

(c)  In Ngan Lun-yan v R [1975] HKLR 369 the Full Court discussed the purpose of the Prevention of Bribery Ordinance Cap. 201 and the legislative intent behind its enactment. On p.372 of the report the Court said:

“The manifest intention of the Legislature was to proscribe the offering, demanding, giving and receiving of what may generically be termed secret commissions. An employee ought to be paid by his employer and not, save with his employer’s consent, by persons dealing with the employer. The law has long recognized that an employee who receives a secret commission is liable to his employer to the extent of that commission: it is dishonest for him to accept it. It is no less dishonest for a person knowingly to pay a secret commission. Of course it is also dishonest for an employee to accept a secret commission in return for his acting in a manner which causes or is liable to cause the employer actual loss, but it is not necessary that such loss or prospective loss shall be proved. As was said in the course of the argument, the only possible justification for the payment of a gratuity to someone else’s employee is the express or implied consent of the employer.”

(d)  There is no sentencing guideline laid down for the offences of this case. I have considered a number of authorities.

(e)  In HKSAR and Pau Chin Hung Andy CACC 267/2012 and Application for Review No 5/2012, the respondent was convicted on two counts of being an agent accepting an advantage for rendering assistance in selling shares without his employer’s permission. For charge 1, he received a reward of HKD 650,380, and for charge 2, he received a reward of HKD 468,621. He was convicted after trial. The trial Judge took into account the respondent’s good background, absence of loss suffered by anyone, the respondent’s lack of complete concealment from his employer of the rewards he received, and the respondent’s readiness to return to his employer those rewards, which taken together constituted exceptional circumstances for not imposing an immediate custodial sentence. The trial Judge sentenced the respondent to 220 hours’ community service (the Order)  on each count to run concurrently. The Secretary for Justice applied for a review of sentence. The application was allowed, the order was set aside and sentencing the respondent to 3 years’ imprisonment. The Court held there were no exceptional circumstances justifying a departure from the norm of imposing an immediate custodial sentence. First, in this type of serious case, the respondent’s personal background hardly constituted an exceptional circumstance. Second, as regards the lack of economic loss to anyone, the court had to take a broader view of the matter and consider the adverse effect this type of offence had on the society. Third, the evidence was that the respondent had never reported to his supervisor the amount of rewards he had received, and in the circumstances the respondent had deliberately concealed the fact that he had received an advantage which he should not have received. Fourth, the fact that the respondent had agreed to return to his employer the rewards in question did not constitute an exceptional circumstance. It might justify only a reduction in the length of the custodial sentence. On the facts and given the total advantage received by the respondent exceeded HKD 1.1 million, an appropriate starting point was 4 years. However, as the respondent had fully complied with the Order and returned the rewards in question to his employer, and as this was an application for review of sentence, the respondent would be sentenced to 3 years’ imprisonment.

(f)  The facts in the present case are much more serious than Pau Chin Hung Andy’s case in terms of the duration of the solicitation for rebate and the amount of rebate paid to and received by the defendant and his co-conspirators. The defendant himself retained or benefited USD 390,031.65 (equivalent to HKD 3,042,246.87), which is a substantial amount of money.

(g)  I do not find any special circumstances in the defendant case to warrant for non-custodial sentence.

The impact and suffering on the defendant himself and his family (wife and parents)  does not constitute special circumstances. Due to greediness, the defendant abused his position for his personal gain and was in breach of trust of his employer, not in an isolated incident but continued for years. He is the author of his own misfortune.

Regarding economic loss to his employer (Tesco), there is no evidence before the court that Tesco had suffered any loss. But common sense detects, when CHEN was willing to pay 2-3% of the amount of the orders as rebate to the defendant and his co-conspirators in order to secure orders to be placed by Tesco Sourcing with Handwin, it must follow, the goods sold by Handwin to Tesco could be 2-3% cheaper, but Tesco had to pay more because the 2-3% could-be discount went into the pocket of the defendant and his co-conspirators as rebate instead.

In the present case, defence counsel submits that the method of committing the offences is straight-forward and not sophisticated, no person or third party as a conduit was involved, and transactions via banks and cash were uneventful without any form of concealment. It may be so but that in my view would not constitute special circumstances.

As to whether the return of the rebate received by the defendant to his former employer would constitute special circumstances, I am given to understand at present his HSBC account and stocks trading account are restrained by restraining order, the total amount (the balance)  under those two accounts added together is under HKD1million, which is less than one-third of the total amount retained/benefited by the defendant at the expense of Tesco.

In Pau Chin Hung Andy’s case, the Court of Appeal held that even the defendant agreed to return the rewards in question to his employer did not constitute an exceptional circumstance. It might justify only a reduction in the length of the custodial sentence.

(h)  Defence counsel urges upon the court to impose a lenient sentence on the defendant, to consider the “One Transaction Rule” when deliberating sentence on the 3 offences and to allow additional discount for the defendant’s assistance to the authority against his co-conspirators. (HKSAR v Leung Yau Wing Victor CACC 444/2013, HKSAR v LAU SI Sing [2010] 3 HKC 242, Z v HKSAR [2007] 2 HKC 265, HKSAR v Cheng Weiquang [2016] 6 HKC 158, HKSAR v Lo Sze Tung Stephanie [2019] 1 HKC 309 referred to).

(i)  In Leung Yau Wing Victor’s case, on the applicant’s plea of guilty, he was sentenced to 3 years’ imprisonment to a single charge of soliciting an advantage as an agent (Charge 1)  and one month’s imprisonment for failing to surrender to custody (Charge 2). He sought leave to appeal the sentence of 3 years’ imprisonment imposed on Charge 1. The applicant was a 66-year-old man with a clear record. It is a case where no money was received by the applicant. His appeal against sentence was dismissed. The Court of Appeal was satisfied that the starting point of 4.5 years’ imprisonment was entirely justified for: (a)  given his position in the company (Transport Affairs director)  assigned to act in tendering and related matters, (b)  his conduct constituted a significant breach of trust in that it related to his company standing to lose a very substantial contract, (c)  the advantage (HKD 6 million)  solicited by the applicant was a payment of 1.5% of the contract price (HKD 406 million)  was a very large sum of money, and (d)  his plan was to benefit himself very substantially whilst causing the loss of the substantial contract to Greater Lucky (his employer).

(j)  In Lau Si Sing’s case, the applicant sought leave to appeal against sentence. He was the managing director of McDonald’s. He solicited and received from one of the foodstuff suppliers to his company a total of HKD 2,325,000 over a period of nearly two years in return for favouring the supplier with McDondld’s business. He was convicted after trial of a charge of conspiracy to accept advantage as an agent (Charge 1)  and a charge of conspiracy to pervert the course of justice (Charge 3). The trial Judge had taken a starting point of 4 years’ imprisonment in respect of Charge 1 and had reduced that by 3 months to give credit for the applicant’s clear record and sentenced him to 3 years 9 months’ imprisonment and to 15 months’ imprisonment on Charge 3. The trial Judge ordered 8 months’ imprisonment of those sentences to run consecutively, making a total sentence of 4 years 5 months’ imprisonment. The Court of Appeal having taken into consideration the facts of the case and considered sentences imposed on other cases for offences of this sort held the starting point of 4 years’ imprisonment taken by the trial Judge in respect of Charge 1 offence was not manifestly excessive. The appeal was partly allowed and totality of sentence was reduced to 4 years 3 months from 4 years 5 months on the ground that the Court of appeal was satisfied the starting point of sentence taken in respect of Charge 3 would have been one of 12 months allowing for the applicant’s good character that should be reduced to a sentence of 10 months’ imprisonment, and for totality of sentence, 6 months of that sentence should be served consecutively to the sentence imposed in respect of the Charge 1 offence.

Sentence

18.  Charge 1 is a continuous offence committed between March 2011 to October 2014 and the substantial amount involved i.e. USD 499,902 (equivalent to HKD 3,899,235.60). I adopt 5 years’ imprisonment as the starting point.

19.  Charge 3 is also a continuous offence committed between February 2017 and January 2018 and the total sum involved is USD 60,919.65 (equivalent to HKD 475,173.27 at the exchange rate of 7.8).  I take 3 years’ imprisonment as the starting point.

20.  Charge 4, the amount involved, i.e. a loan of USD 100,000 (equivalent to HKD780,000 at the exchange rate of 7.8), I take 3.5 years imprisonment as the starting point.

21.  Defence counsel urges the court:-

(a)  to consider the One Transaction Rule;

(b)  to allow additional discount for the defendant for his assistance rendered to the authority.

22.  In respect of (a)  above, Defence counsel submitted that the 3 offences under Charges 1, 3 and 4 were committed and implemented continuously by the defendants and the co-conspirators with the same modus operanti of rebates involving TISL.

23.  In respect of (b)  above, Defence counsel refers to a number of authorities and submitted a statement of Tsang Wa-chan, a senior investigator with the ICAC dated 16 June 2021 and two non-prejudicial statements (NPS)  dated 9 and 10 June 2021 taken by the ICAC from the defendant for the court’s reference.

24.  In Z v HKSAR, FA No. 9 of 2006, the Court of Final Appeal held there was no bar to pre-arrest assistance being taken into account in mitigation of sentence.  The courts adopted the policy of accepting useful assistance to the authorities as a mitigating factor on the basis of the public interest.  The object of this policy was to provide an incentive for offenders to co-operate with the authorities.  Putting it differently, the policy’s object was to encourage useful assistance to the authorities for the prevention, detection and prosecution of crime.  That purpose would be equally served whether the assistance was provided before or after arrest.  There was no justification for drawing a curtain between pre-arrest and post-arrest assistance and for imposing a bar against recognition of the former.  The court should examine the circumstances relating to pre-arrest assistance before deciding whether and if so, the extent to which it should be taken into account.  The court should proceed with considerable circumspection in deciding whether, taking into account all circumstances, the assistance merited any recognition and if so the degree of any discount.

25.  In HKSAR v Cheng Weiguang, CACC97/2017, the Court of Appeal held “Generally speaking, an offender who had provided assistance to the authorities may receive a usual discount of 40%. The offender should be given about 45% discount for considerable assistance that he had given to the relevant authorities.  If the offender had provided considerable assistance to the relevant authorities and testified in the trial of the other offender leading to his conviction, he may be given a discount of 50% from the starting point.  If the offender pleaded guilty and provided assistance to the authorities, including providing relevant information and his willingness to testify against the other offender, and yet he was not required to give evidence against the other offender and did not suffer any hardship, the discount should range from 40-45%. The judge had a discretion to determine the appropriate discount in light of the circumstances of the case.

26.  In the present case, I am shown two NPS taken by ICAC from the defendant as mentioned.  There is no need to repeat the contents here for Mr Tsang, the senior investigator of ICAC, has summarized the contents of the NPS in his statement, the relevant parts I took into consideration are as follows.

27.  On 10 January 2020 the ICAC arrested the defendant and one of the co-conspirator KOVACS for corruption offences. The defendant gave full admission to the ICAC when he was arrested on 10 January 2020. KOVACS remained silent under caution.  The remaining co-conspirators GAJDOS and CHEN both were not in Hong Kong, they refused to be interviewed under caution.

28.  Legal advice from the Department of Justice concluded that there was insufficient evidence to prove that KOVACS, CHEN AND GAJDOS had committed any offence.

29.  On 29 October 2020, the ICAC charged the defendant with 5 charges i.e. Charges 1-5.

30.  On 31 March 2021, Mr Liu, counsel for the defendant, wrote to the Department of Justice for plea bargain and also indicated that the defendant would assist the prosecuting authority by giving non-prejudicial statement(s), and “to continue until the process was completed”.

31.  The plea bargain was duly accepted by the Department of Justice.  In that connection, the ICAC interviewed the defendant on 7 May 2021, 3 June 2021 and 8 June 2021 and two NPSs were signed by the defendant on 9 June 2021 and 10 June 2021, i.e. the ones handed up to the court by the defence counsel.

32.  Mr Tsang in his statement spelt out the following:-

During the interviews, the defendant had provided full and frank information with regard to his corruption scam with KOVACS, GAJDOS and CHEN between 2010 and 2019.

In addition, the defendant also provided four mobile phones (with text messages and WhatsApp messages between CHEN and the defendant, and between KOVACS and the defendant)  and one USB drive (with spreadsheets and email correspondences between KOVACS and the defendant)  to the ICAC.

The defendant further provided detailed explanations regarding the distribution of the rebates by elaborating the communications between the co-conspirators of the scam. The defendant also explained the mechanism of the spreadsheets that he made, including but not limited to Excel Table A, which provided new information to the ICAC.

The new information provided from the defendant was of practical use and could potentially assist the ICAC. Based on the material available, the information provided was full and accurate.

The ICAC considered that there is now sufficient evidence to charge KOVACS, GAJDOS and CHEN. In order to further the investigation or any subsequent proceedings, further legal advice will be sought from the Department of Justice to re-assess the criminalities of KOVACS, GAJDOS and CHEN.

33.  Based on the above confirmation by the ICAC, I accept the assistance provided by the defendant to the law enforcing authority is considerable.  He has also, pursuant to the plea bargain, pleaded guilty to three of the five charges preferred against him.  As to whether or not the defendant will testify in the trial of the co-conspirators, it is a matter that remains to be seen for it is still unknown what further action will be taken by the authorities against the defendant’s co-conspirators, who are, as I believed, not yet been apprehended.  In these circumstances, I determine the appropriate discount is 40% (including the 30% for his early plea)  and I also accept in the circumstances of this case, the One Transaction Rule is applicable, the sentences to be imposed on the defendant should run concurrently.

Sentence

Charge 1:  I adopt 5 years’ imprisonment as starting point and allow 40% discount, the defendant is sentenced to 3 years’ imprisonment;

Charge 3:  I adopt 3 years’ imprisonment as starting point and allow 40% discount, the defendant is sentenced to 21 months’ imprisonment;

Charge 4:  I adopt 3.5 years’ imprisonment as starting point and allow 40% discount, the defendant is sentenced to 25 months’ imprisonment.

I order the sentences to run concurrently which means the total sentence for Charges 1, 3 and 4 is 3 years’ imprisonment.

Restitution

34.  Prosecution applies for an order to be made which is mandatory pursuant to section 12(1)  of the Prevention of Bribery Ordinance against the defendant to pay to Tesco International Sourcing Limited the sum of USD 390,031.65 being the advantage received/benefited by him (HCMP 1542/1994 & HKSAR v Lui Kin Hong Jerry (No. 2)  referred to).

35.  This application is not objected to by the defendant.

36.  Accordingly, the defendant is hereby ordered to pay to Tesco International Sourcing Limited the sum of USD 390,031.65 (equivalent to HKD 3,042,246.87).