HKSAR v. CHUNG SIM YING TRACY

HCMA267/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 267 OF 2001

(ON APPEAL FROM ESCC 3238 OF 2000)

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J U D G M E N T

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1. I turn now to the Appellant's appeal against sentence. The facts have already been dealt with extensively in my judgment on the appeal against conviction.

2. The grounds of appeal against sentence are that the Magistrate erred in adopting a too high starting point; failed to give proper consideration to the possibility of a suspended sentence; failed to give proper consideration to the possibility of non-custodial sentencing options and failed to have sufficient regard to the mitigating features.

1. I say at the outset that I do not accept that my powers on appeal are as constrained as Mr McWalters contended for. It has long been established that an appellate court dealing with an appeal against sentence has to see that the sentence imposed meets not only the offence, but also the offender.

2. Having said that, there can be no doubt that the Appellant's offences are serious ones. However, there are matters in her favour that go to mitigation. The misconduct offence, although a very old common law offence, has rarely been brought in Hong Kong. So far as I can gather, this is only one of four cases where a person has faced such a charge in Hong Kong. Indeed, until the Court of Final Appeal's decision Shum Kwok Sher last year, there was a serious doubt as to whether or not it was an offence known to Hong Kong law. I note that the Appellant committed her misconduct offences at the time this doubt existed.

3. Secondly, it appears to have been accepted throughout the 20 days of trial (indeed, through the many days of the appeal) that had the Appellant disclosed her relationship with TOD and Top, there was no reason at all why those two companies could not have bid for Institute contracts and, had their quotations been the lowest ones, been awarded them. As I said to Mr King in the course of our colloquy this afternoon, it is a great pity that the Appellant chose not to do what she did in an open and above board manner.

4. Thirdly, although the tendering process was undoubtedly corrupted as a result of the Appellant's actions, the work that TOD and Top did for the Institute appears to have been done properly and of the standard required. No one at trial or appeal appears to have said to the contrary.

5. Fourthly, the amounts are relatively small. The total gross value of all six contracts in question is $133,400. It appears that is difficult, if not impossible, to work out the amount that the Appellant's actions caused the Institute to overpay, if indeed it is the case that they overpaid for the work. The work that TOD and Top did was described in evidence as being of a routine nature. There is, I am sure, a going rate for this kind of work, and even though the tendering and the selection process was corrupted, I think it can be safely said that the quotations that TOD and Top submitted were not markedly over that going rate. Had they been, it would have been manifestly impossible for the Appellant to have hoodwinked her superiors into accepting the award of contracts to those two firms at a price far in excess of the going rate. This boils down to my saying that the actual loss to the Institute as a result of the Appellant's misconduct appears to be relatively negligible.

6. Fifthly, the Appellant is the mother of a young child, a boy now aged three. Unless the interests of justice require it - and so often they do require it - any sentencing judge or magistrate should, so far as possible, not impose an immediate custodial sentence that will separate a young child from his or her mother.

7. There appears to be no accepted sentencing tariff for the misconduct offence, which is not surprising given the paucity of prosecutions for this offence.

8. Shum Kwok Sher appears to be the only appellate case that we have to guide us on sentence. There the Appellant was a directorate-grade civil servant who manipulated the tender process to ensure that his extended family were awarded Government property management contracts to a value of well over $100 million. A figure which is far in excess of the $133,400 involved in this case. Shum Kwok Sher's after-trial sentence of 9 months' imprisonment for all his offences was increased by the Court of Appeal on a Secretary for Justice's review application to 30 months.

9. Having said that, Shum was a directorate-grade civil servant of over 30 years' service who ran his own department. The Appellant was a relatively junior middle-management grade civil servant of only a few years' service and she was in no way approaching the time when she could hope to be the head of the Civil Service Training Institute.

10. The two other cases involving misconduct offences to which I have been referred - although I have seen no formal reports in respect of either of them - are both cases in which suspended sentences were imposed.

11. I am of the view that I can refer to the recent spate of cases involving Hong Kong civil servants who have made false claims for housing benefit in my arriving at a decision on whether or not the sentences the Appellant received were the right ones. I note that all those cases involved dishonest representations by ranking civil servants which resulted in the offenders obtaining cash payments for their own benefit of amounts far higher than the $133,400 involved in this case. All were dealt with by way of suspended sentences or Community Service Orders. In saying that, I am aware that in one of those cases, Lin Ming Ing & Another, the Court of Appeal, although declining to interfere with a Community Service Order sentence, referred to it as being "an undoubtedly merciful" sentence. This all boils down to no more than that the sentence must reflect the offence and the offender.

12. For these reasons, I am of the view that a custodial sentence is not required in the Appellant's case. I note that she has already spent one week in prison. She has already heard "the clang of the prison gates". I also take into account the fact that, now that this matter is at an end in the courts, she will be subject to disciplinary action. Although it is not for me to say what the result of that disciplinary action will be, it was accepted by her counsel, Mr King, that she will no longer be a civil servant.

13. The sentences of 7 months' imprisonment imposed upon the Appellant in respect of each of the offences on which she was convicted, with the exception of the sentence on the 10th charge which has now been quashed, stand, as does the Magistrate's order that they be served concurrently. However, each one of those sentences is suspended for a period of 18 months. That period is to run from today's date. The Appellant's appeal against sentence is allowed to that extent.