HKSAR v. LAI CHIN PANG

HCMA1261/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1261 OF 2001

(ON APPEAL FROM ESCC 2932 OF 2001)

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J U D G M E N T

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1. The applicant was convicted after trial of two counts of accepting an advantage as an agent contrary to section 9(1) (a) and section 12 of the Prevention of Bribery Ordinance, Cap.201 ("the Ordinance") and sentenced to nine months' imprisonment on each offence the magistrate ordering that six months of the term in count 2 to run concurrently with that of count 1 giving a total to 12 months' imprisonment.

2. The facts found by the magistrate were that the appellant was employed by Cathay Pacific Airways as a flight attendant. As part of the terms of his employment he was entitled to nominate a person who could purchase discounted tickets from Cathay Pacific Airways. That person was prohibited from paying to the appellant and the appellant was prohibited from receiving from that person any money in respect of those concessionary fares. The appellant nominated a Miss Tse to receive this benefit. Over a period of time Miss Tse purchased at the discount rate a total of four tickets having a market value of $30,000. She paid to the appellant in respect of these tickets the sum of $15000 on each of two occasions making a total payment to him of $30,000.

3. These sums are the subject of the two charges laid against the Appellant.

4. Initially the appellant appealed both conviction and the sentences passed upon him but his appeal against conviction was dismissed upon abandonment.

5. There are three grounds of appeal.

6. Firstly, in arriving at his sentence the magistrate failed to consider or have sufficient regard to the background of the appellant and the circumstances of his commission of the offences and thereby did not select other sentencing options open to him.

7. Secondly, the sentences are manifestly excessive and,

thirdly, it was wrong to make the sentences partly consecutive.

8. These charges were brought pursuant to the Ordinance and are clearly of a corrupt nature.

9. In Secretary for Justice v. Kwan Chi-cheong & Others, CAAR1/1999, Stuart-Moore VP said :

"The Prevention of Bribery Ordinance provides the sanctions necessary to deal with breaches of this kind. The Ordinance was intended to be draconian in its effect. Bribery, whether in its acceptance or by the offering of an advantage, is an evil which can strike at the heart of commercial and public life if it is left unchecked. A punishment that fails to deter will produce all the wrong signals just as sentences that act as a deterrent will reinforce this community's efforts to rid itself of corruption.

For these reasons, even the first offender charged with an offence of corruption under the Ordinance, unless it is merely a technical breach, must usually expect a deterrent sentence. This will almost invariably involve a sentence of immediate imprisonment.

Taking Lawton L.J.'s four classic principles of sentencing, [See R v Sargeant, (1970) 60 Cr.App.R. 74 at 77], these are retribution, deterrence, prevention and rehabilitation. It may well be that in many cases, the balancing act which the sentencer must perform will be a difficult one. All factors need to be taken into account but, depending on the circumstances, it may be that greater significance has to be given to one factor rather than another. In cases of corruption, where an advantage is offered or accepted it is difficult to envisage a situation where public interest does not require deterrence to predominate. The personal circumstances of the offender will carry less weight. This, it seems to this Court, should apply whether the corruption is in the public sector or in the private sector. It may be that in some cases of public sector corruption the offences will be more serious but that is a matter that can be reflected in the length of sentence rather than the mode of sentence."

10. It is quite clear that the court was of the view that except in exceptional circumstances an immediate custodial sentence was called for.

11. Miss Wong for the appellant has argued strongly that taking into account all the factors that are relevant to the imposition of a community service order the magistrate should have taken that option. As a result I called for a Community Service Order Report. The Report was favourable to the appellant.

12. In her argument Miss Wong referred me to R. v. Brown (1981) 3 Crim. App. R.(S)294 where the court said :

"Offenders who can be said to be best suited to community service orders will:

(1) be, either a first offender, or one with a 'light' criminal record;

(2) come from a stable home background, perhaps with a family;

(3) have a good work record - orders are not designed to encourage the lazy, or to show the idle, the errors of their ways;

(4) be in employment, or have a realistic prospect of such;

(5) have shown genuine remorse; or

(6) present no more than a slight risk of re-offending."

13. Miss Wong argued, and I accept that the appellant falls within each of the factors set out by the court.

14. However in Secretary for Justice v. Lin Min-ying & Another, CAAR7/2001, Stuart-Moore VP said :

"It is apparent that the judge had carefully analysed the matters to be weighed towards sentence and the Respondents' general suitability for community service was merely one aspect to be considered. There was, so far as we can discern, really no matter of any significance, whether for or against the Respondents, which appears to have escaped the judge's attention in his approach to sentence."

15. I adopt that view and find that the magistrate had before him all the background details necessary for him to decide the appropriate method of punishment. Notwithstanding the appellant fits each of the factors set out for the imposition of a Community Service Order the magistrate took into account the view the authorities take in respect of first offenders not in the public sector who are otherwise upright citizens but who commit corruption offences. He was satisfied from his analysis that an immediate custodial sentence was appropriate and having reviewed all the facts of the matter, the material available to the magistrate, what has been said by counsel before me and the authorities I must agree with him. The first ground of appeal must fail.

16. The second ground of appeal is that in all the circumstances the totality of the sentence is manifestly excessive. It is apparent from the statistics given me by Miss Cheng for the respondent and the material she elicited from Cathay Pacific Airways that this type of conduct is rare and that over the last few years there have been only three prosecutions. This information was not made available to the magistrate who seems to have been led to believe the offence was prevalent. Therefore whilst the element of general deterrence referred to in Kwan Chi-cheong above remains there is no need for deterrence in respect of the appellant.

17. In all the circumstances as I now know them I am of the view that the sentence is too high and allow the appeal to the extent that a sentence of four months' imprisonment is imposed in respect of each charge. The sentences are to be served concurrently