THE QUEEN v. HO WAH-KI

IN THE SUPREME COURT OF HONG KONG

(Appellant Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 694 of 1988

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J U D G M E N T

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1. The Appellant was convicted after trial on two charges of accepting and one of soliciting an advantage without the general or special permission of the Governor, contrary to section 3 of the Prevention of Bribery Ordinance.

2. He was sentenced to imprisonment from 9 months on each charge. The learned magistrate ordered that the sentences for accepting be served consecutively and the sentences for soliciting be served concurrently. The effective sentence was therefore imprisonment for18 months. The Appellant was also ordered to pay the advantages amounting to $200,000 to the Crown within 12 months or whatever extended period the Crown might subsequently allow.

3. The Appellant gave notice of appeal against the convictions but those appeals were abandoned at the hearing last Friday.

4. He now appeals only against the sentences. The two accepting offences were committed in march 1987 and the soliciting in January1988 Although the magistrate's trial record covers about 300 typed foolscap pages, the facts of the case can be simply stated.

5. The Appellant was employed as a principal Welfare Assistant in the Social Welfare Department. As part of his job, he investigated applications for public assistance and legal aid. In September 1984 he was assigned the task of investigating the means of Mr. Chan Chung-tak, an applicant for legal aid, with a view to determining the suitability for a grant. Mr. Chan an 82-year old semi-illiterate person from China, was in dispute with his family members regarding his inheritance and was seeking legal aid to pursue his claim. The Appellant, on interviewing Mr. Chan and learning that the inheritance was substantial, persuaded him to seek private legal representation rather than pursue his claim for legal aid. Mr. Chan thereupon withdrew his application for legal aid and the Appellant later introduced him to a firm of solicitors. In December 1985 Mr. Chan's case was settled on terms that he would receive a total payment of $2M. The Appellant then sought payment of 20% of the settlement. There was a dispute about whether Mr. Chan should pay so much to the Appellant. The Appellant had done quite a lot of work in connection with the settlement and had lent Mr. Chan about $2,000 as well as assisting him in relocating members of his family but his counsel conceded that the claim for 20% was blatantly exorbitant and morally reprehensible. Eventually, Mr. Chan, fearing that his family might be in danger because of certain threats made by the Appellant, agreed to pay him $300,000 by instalments. The Appellant persuaded him to sign a document purporting to be evidence of their agreement. Pursuant to the agreement, Mr. Chan paid him $60,000 on 11th March 1987. That payment is the subject of the 1st charge. On the 26th March. 1987, Mr. Chan paid him a further $140,000 and that payment is the subject of the 2nd charge. In early January 1988, the Appellant contacted Mr. Chan seeking payment of a further $16,000. There was then a dispute between there as to whether Mr. Chan should pay $50,000 or $60,000. It was the failure to resolve that dispute which led to Mr. Chan reporting the arragnment to the ICAC. It is that approach to Mr. Chan in January 1988 which is the subject of the 3rd charge. Although it hardly needs to be said, the fact is the Appellant had neither the general nor special permission of the Governor to solicit or accept the advantages.

6. Mr. Mumford, Queens Counsel, on behalf of the Appellant, relies on three main grounds in support of his appeal against sentence. Firstly, he contends that an immediate custodial sentence of imprisonment for 9 months was manifestly excessive having regard to the fact that the maximum penalty is imprisonment for 12 months plus a fine of $100,000. He referred me to Chan Wing-leung (1988 HK Law Journal at page 160) where Addison J. said that no one had ever received a custodial sentence for a Section 3 offence.

7. The learned magistrate however took the view that the Appellant had a corrupt motive. It is true that he was not corrupt in the sense that he sought or received an advantage aimed at influencing him in the performance of his official duty but he was corrupt in the sense that he used his official position, as the Learned magistrate pointed out, to "ruthlessly exploit Mr. Chan for his own considerable financial benefit? It is a far cry from the type of case Addison J. had in mind where such a motive was lacking. I think, the learned magistrate was right to treat this case as one in the high bracket of seriousness of offences of its kind. I can find nothing wrong in principle with the immediate custodial sentence of 9 months for an offence committed in circumstances such as these nor do I think it excessive.

8. Mr. Mumford's second ground is that it was wrong to order two of the sentences to run consecutively. The learned magistrate was of the view that the "continuing nature." of the offences warranted consecutive sentences. He made the third sentence concurrent only because imprisonment for 27 months would have been, on the totalicy principle, disproportionate to the Appellant's criminality.

9. I respectfully disagree with the learned magistrate's view that the consecutive sentences were called for. Although there were 3 criminal offences they did form part of the one criminal transaction. It was only because Mr. Chan did not receive his settlement payment in one lump sum that he was unable to pay the advantage of $300,000 in one lump sum. The 3 offences were committed because the transaction was, through circumstances beyond the control of the Appellant and Mr. Chan, unable to be confined to one section 3 activity. I think all the sentences should have been ordered to be served concurrently.

10. On his third ground, Mr. Mumford argues said "before making the order for repayment of the $200,000, the learned magistrate should have had regard to the Appellant's means to the same extent as he is required to do when he is considering ordering a fine to be paid as a penalty. In support of this submission he referred me to Shamshuddin (1987) HKLR 826). In that case, because of the paucity of the evidence regarding the Appellant's means the Court of Appeal ordered that he pay a nominal sum by way of restitution. In this case, however, we know that the Appellant received the $200,000 as recently as 18 months ago and there was no evidence before the learned magistrate as to what happened to that money. His Counsel at the trial - it was not Mr. Mumford - said that he had lost on the stock market but no detail as to how he lost the money were offered nor did he submit to the learned magistrate details of his bank accounts etc. I think the order for restitution was appropriate in the circumstances.

11. In the result, I allow the appeal to the extent that the order that the sentences on the first two charges be served consecutively be set aside and in lieu thereof I substitute an order that they be served concurrently.