HKSAR v. LAU YEE LAI

HCMA865/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.865 OF 1998

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

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

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

J U D G M E N T

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

1. This is an appeal against sentence.

2. The Appellant was convicted on his own plea before a Magistrate of two charges. The 1st charge is Offering an Advantage to an Agent, contrary to s.9(2) of the Prevention of Bribery Ordinance, Cap.201, in that, on 29 October 1997 in Hong Kong, the Appellant without lawful authority or reasonable excuse, offered an advantage, namely, a gift, fee, reward or commission of $100,000 to an agent Mak Yiu-man, an Inspector of Works employed by Ove Arup and Partners Hong Kong Limited, as an inducement to, or reward for, or otherwise on account of the said Mak Yiu-man forbearing to do an act in relation to his principal's affairs or business, namely not to pursue or take further action in relation to the forged concrete delivery dockets of bored pile No.BP-7 at the Lantau and Airport Railway Hong Kong Station Northern Site. The 2nd charge is exactly identical except for the date of offering of the payment, which was 31 October 1997 and the payment was also $100,000. The Magistrate imposed a sentence of 10 months' imprisonment for each of the offences and ordered the two sentences to run consecutively, resulting in a total sentence of 20 months' imprisonment.

3. There was an application for review of the sentence. When the Magistrate told Counsel, Mr Plowman, S.C., how his mind worked on the day when he passed sentence, he said :

"I took as a totality for the sentence of 3 years. I being of the opinion that this case ought to have been dealt with in the District Court, as are interconnected offences being dealt with on conspiracy charges against, I think, four or possibly five defendants. Having reached that conclusion I reduced the sentence by a period of one-third. Having read the memorandum from the ICAC, I granted the defendant a 4-month reduction for his sentence. Having then done that, that left me with a situation how to apportion the totality between the totality of the two sentences. I accordingly divided it by two, reaching 10 months on each, making a total of 20 months in all. That's the arithmetic which I carried out on the day of sentence."

Then there was this exchange between Counsel and the Court :

"Mr Plowman : Well, you are saying, I take it, 18 months was your starting point on each offence.

Court : I was saying that my totality for sentence overall, looking at the two offences, came to 3 years. If you divide 3 years by two then you get 18 months, yes."

At the conclusion of the review, the Magistrate said :

"Here the offences are of equal gravity and the overall sentence was to reflect the total, appropriate to the course of criminal conduct. Review is refused. Sentence to remain as before."

4. Three grounds of appeal against sentence are raised. I will deal with the 2nd ground first. The 2nd ground states that the learned Magistrate erred in his approach to sentencing in that he began with a totality of three years' imprisonment in respect of both offences rather than deciding what was an appropriate sentence for each offence individually. Mr Plowman refers me to the case of Lui Shu Tong v The Queen [1961] HKLR 129, a decision of the Full Court. Delivering the judgment of the Full Court, Hogan, CJ had this to say at pp.136-137 of the report :

"We are of the opinion that the best course for a Court to adopt in passing sentences is to decide firstly what, in all the circumstances, including both the background of the offence and the offender, is an appropriate sentence for each offence. Then, the Court should consider whether any particular group of offences arises out of the same set of facts, so that it can be said that the whole group of offences are inter-connected with one another. Normally, it is more appropriate that the sentences on the various charges in such a group should be ordered to run concurrently with one another. If, on the other hand, each offence in the indictment is a distinct and separate offence unconnected with the other offences, it is usually more satisfactory to invoke the provisions of section 71 of the Criminal Procedure Ordinance and to order that such sentences should run consecutively to one another. ... Nevertheless, a sentence, whether it is ordered to run consecutively to or concurrently with a sentence in respect of some other offence, should not itself be enhanced for the purpose of punishing any other offence of which the accused has been convicted, and in respect of which a separate sentence has been imposed. Finally, it is appropriate that, a court should, when sentencing, have regard to the overall effect of the sentences imposed by it in respect of a number of offences and satisfy itself that the aggregate punishment is, in the circumstances, adequate but not excessive."

5. Mr Plowman also refers me to the case of Attorney General v Au Kwok Chai [1996] 3 HKC 192. The facts of that case were that the respondent was charged with possession of dangerous drug inside Lai Chi Kok Reception Centre. The drugs were taken into the prison for personal use by the respondent. The narcotic content of the drugs was considered as small. He pleaded guilty to the charge and was sentenced to one month's imprisonment concurrent with a sentence of 51/2 years' imprisonment already imposed. In passing this sentence, the magistrate considered the principal factor in determining the sentence was totality. Power, V-P delivering the judgment of the Court of Appeal had this to say, at p.193G of the report :

"With respect to the magistrate, this may well have led him to adopt an erroneous reasoning process when assessing sentence. The first and principal factor should have been the assessment of the proper sentence for the offence being dealt with. Only when that sentence has been assessed does the consideration of totality come into play."

6. Clearly the approach adopted by the Magistrate in this case was wrong in that he approached it from the angle of totality first before dividing the total sentence he thought appropriate by the number of offences.

7. Ground 1 of the grounds of appeal is that the learned Magistrate erred by ordering that the sentences of 10 months' imprisonment imposed in respect of each of the two charges be served consecutively when the offences arose out of the same set of facts and were interconnected with each other. Mr Plowman partly relies on the case I just cited, the case of Lui Shu Tong, and he also refers me to the case of HKSAR v Luk Wai Lun, HCMA188/1998 (22 April 1998, unreported). There, the appellant was convicted on his own plea of two offences of accepting an advantage, contrary to s.9(1)(a) of the Prevention of Bribery Ordinance, Cap.201. On each charge he was sentenced to six months' imprisonment, the Magistrate ordering that the two sentences should run concurrently. The facts were that the appellant was employed by a real estate company as a property manager. The leases on two premises fell due for renewal. The appellant approached the two tenants and in return for assisting them to renew their leases, he solicited a secret commission from each of them. Hartmann J. was satisfied that the sentences imposed by the magistrate were correct in principle and were not manifestly excessive.

8. Item 3 of the Grounds of Appeal is that the learned Magistrate failed to give an adequate discount to the defendant for his cooperation with the investigating authorities and the giving of evidence as a prosecution witness. The Magistrate did, in passing sentence, take into account that the Appellant was co-operative with the ICAC and was offering assistance to the ICAC in the then impending prosecution of other people involved in the offences with which the Appellant was charged. However, at the time the prosecution of the other people was not underway and according to what I am informed by Counsel, and Mr Zervos for the HKSAR does not object, that trial took place in April this year resulting in the conviction of the two persons in respect of whom the Appellant gave a witness statement to the ICAC and testified. Without the benefit of knowing the actual outcome, the Magistrate gave a discount of four months' imprisonment to the Appellant regarding his assistance to and his cooperation with the ICAC.

9. Mr Plowman impresses upon me the importance of the cooperation and assistance given by the Appellant and he also points out the personal and family circumstances of the Appellant which I accept. Another matter which is emphasised is that the Appellant was only acting as a go-between for his friends in offering the bribes, and had derived no personal benefit whatsoever from the two offences. However, it is to be recognised that corruption is a very serious offence. In Luk Wai Lun, the judge pointed out the seriousness of corruption by referring to a decision of Wong J. in R v Au Chung Fai (HCMA1524/94) in which the learned Judge said the following :

"There is a belief, erroneously, no doubt, that corruption in the private sector is less serious than corruption in the public service. They are equally serious and inter-related because both will affect the public interest. The corrupt moneys paid and received in this way will ultimately pass on to the consumer public as part of the production cost or expenses, and the public interest suffers as a result."

10. In passing sentence in this case, the Magistrate had the following to say :

"You have done irreparable damage to the reputation of the construction and engineering industry in Hong Kong. You have undermined the confidence of the people of Hong Kong in that industry."

I agree to those utterances. In all the circumstances of this case as I consider, since the Magistrate has been found to have erred in his approach in sentencing, I am of the view that for each of the offences, a starting point of 18 months should have been adopted and, because of the new facts available now, for the assistance given by the Appellant to the ICAC resulting in the conviction of two persons, I am of the view that a reduction of 50% should be granted and that is in accordance with the decision of the Court of Appeal in R v Chan Fu-kui [1986] HKLR 967. And I have to consider whether the sentence should run consecutively or concurrently. The Magistrate's comment in this respect can be found in his Reasons for Sentence, where he said :

"I considered those offences to be separate although relating to the same contract and with the same end in view. The second offence was an upping of the 'ante' and therefore an increasing of the pressure on the victim to bend to their requests."

I agree with the second sentence uttered by the Magistrate in that the second offence was in regard to a further payment of $100,000 to the agent by the Appellant and that increased the seriousness of the offence although the two offences could be considered as part and parcel of the same transaction.

11. I am therefore of the view that the proper sentence should be that for each of the offences, nine months of imprisonment and the six months for the second offence should be concurrent with the sentence for the first offence and the remaining three months should be consecutive. In the result, the total sentence should be 12 months' imprisonment. The sentences imposed by the Magistrate are set aside and the sentences as I have just pronounced should be substituted therefor. The appeal is allowed to that extent.