HKSAR v. LEE YAU TAK

CACC 427/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 427 OF 1998

(ON APPEAL FROM DCCC233 OF 1998)

---------------------------

----------------------

J U D G M E N T

----------------------

Nazareth V-P (giving the judgment of the Court) :

1. The applicant was convicted after a trial by Deputy Judge Geiser on 21 July 1998 in the District Court of four separate offences contrary to s.89 of the Criminal Procedure Ordinance (Cap. 221) and s.41(1)(a) of the Immigration Ordinance (Cap. 115).

2. The offences were that he aided, abetted, counselled or procured a Filipina, Miss Lulu Diwa to make representations to the Immigration Officer on four occasions. The offences took place over a period of four years, i.e. between 1994 and 1997. The applicant signed two employment contracts indicating that he was the employer of Miss Diwa. These related to the first and third charges. On another occasion he signed documentation intended for the Immigration authorities that Miss Diwa was still employed by him thereby facilitating extensions of her visas. These matters related to the second and fourth charges. In fact there was never any intention of Miss Diwa being employed by him; nor was she ever in fact employed by him. She supported herself by temporary part-time employment. He was sentenced to 21/2 years imprisonment. He now seeks leave to appeal against sentence.

3. The applicant was a serving policeman. As will be seen he served in the catering section. He had about 20 years service and had in fact reached the rank of Sergeant.

4. In sentencing him, the judge said this:

"I say straightaway that I have considered the contents of the background report placed before me, together with the letter from the Commissioner of Police which reports favourably on the defendant and I note that throughout his 20 years' service or thereabouts in the force, he has got a clear disciplinary record.

It is extremely sad to see a man such as the defendant convicted of offences such as this. It goes without saying that you are of hitherto good character and the background report, which I accept, indicates that you are a decent family man. You will no doubt suffer financial hardship as a result of these convictions. You have fallen prey to the temptation of assisting for financial gain an unscrupulous Filipina who used you so that she could unlawfully remain in Hong Kong. An aggravating feature of these offences, of course, is that you are a serving police officer and you are expected to know better."

The judge then referred to two authorities, before he turned to sentence the applicant to 2 1/2 years imprisonment.

5. The perfected grounds of appeal against sentence raised two matters. First, that the first authority referred to by the judge concerned several domestic helpers whereas the offences here concerned a single domestic helper. We cannot say that we find this a ground that assists us in any significant way on sentence.

6. The second ground concerned with several Court of Appeal sentences which Mr Wong Man-kit, who appears for the applicant, has helpfully summed up as disclosing sentences ranging from four years in one case to two years in another with two other sentences of three years, all of which apparently concerned several domestic helpers. Again, we do not find ourselves greatly assisted by reference to the sentences in these other cases. The circumstances were different and certainly they do not appear to have had the aggravating feature here of a policeman being the offender.

7. Curiously, however, the grounds of appeal do not raise two matters that we have noted and which are of concern to us. The first is that although the applicant was a policeman for 20 years and, indeed, had attained the rank of Sergeant, the probation report discloses that his real profession was that of a caterer. That is confirmed by the qualifications and training he received. He was trained in hotel cookery at the Haking Wong Technical Institute, completed numerous courses and specialised in catering. He joined the Police Force as a constable after having worked as a waiter and apprentice cook in 1997. Apparently his first six years service were in the Marine Police where he was engaged in the maintenance of ships, but thereafter he served continuously in the catering section. We think that is a matter of some significance as it might have led to his not appreciating fully the commitment police officers should have to the enforcement of law and their own compliance with the law.

8. However, there is also the second matter we have noticed. This is the almost passing reference in the reasons for sentence to the fact that the applicant would undoubtedly suffer financial hardship as a result of the convictions. This remark belies the very substantial, one might say catastrophic loss in financial terms that the applicant would sustain by reason of a conviction. He tells us without contradiction that he will lose a sum of the order of $6-700,000 in provident fund payments that he would have received and also a pension of the order of $4-5,000 per month.

9. Those matters and also to the fact that he has lost his job at the age of 41 years which could have been expected to continue to about the age of 55, we think, has a significant impact on the severity of the sentence he received.

10. Having regard to the several sentences to which Mr Wong has referred, 2 1/2 years can be seen as a severe sentence. But when placed in the context of the total loss of his retirement benefits, the loss of his job, the relatively insignificant gain from the offences, coupled with the fact that he had a clear disciplinary record together with a background report from the Commissioner of Police, which was described as favourable by the judge, and also to the acceptance by the judge that he was a decent family man, we think it leads to the clear conclusion that the sentence is indeed manifestly excessive.

11. Having given the matter carefully consideration, we think it should be reduced so that his release can be immediately effected. That will in fact be reducing his sentence to one somewhat in excess of one year.

12. Accordingly, we grant leave to appeal, we allow the appeal, we set aside the sentence and reduce it to a term that will ensure his release forthwith.