HKSAR v. CHAN KUN HOI

HCMA 674/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 674 OF 2008

(ON APPEAL FROM KCCC 2284/2008)

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J U D G M E N T

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1.  The Appellant (D1) pleaded guilty in the Magistracy to one count of offering advantages to an agent, contrary to Sections 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 210.  His co-defendant (D2) faced a mirror count of accepting advantages as an agent.  The Appellant was sentenced to 5 months’ imprisonment, and his co-defendant was sentenced to 6 months’ imprisonment.  The Appellant appealed against the sentence on the ground it was excessive, particularly in relation to the starting point adopted by the Magistrate.  On 11 September 2008, I allowed the appeal to the extent of reducing the Appellant’s sentence from 5 months to 4 months.  I said I would give my reasons in writing at a later date and now do so.

2.  The Appellant and his co-defendant were charged on 16 April 2008.  The period over which the corrupt payments had stretched was from July 2004 to April 2007.  On 18 April 2008, the Appellant and his co-defendant appeared before the Magistrate, and indicated pleas of not guilty.  A pre-trial review was fixed for 16 May 2008.  Thereafter the Appellant took advice and on 7 May 2008, wrote to ICAC indicating he would plead guilty and that he was prepared to give evidence against his co-defendant.  At the pre-trial review the Appellant confirmed his plea of guilty and a trial date 7 July 2008 was fixed for the co-defendant.

3.  On 20 June 2008, the Appellant gave a non-prejudicial witness statement.  He gave an account of the dealings between him and the co-defendant, pointing out that D2 had taken the initiative and that he had “followed the flow” making the payments over the period of 2 years as a general sweetener, rather than as encouragement to do any particular task.

4.  On 7 July 2008, both the Appellant and D2 pleaded guilty, D2 having changed his position over that period.

5.  The Respondent confirmed that the prosecution would have called the Appellant as a witness for the prosecution if the trial of the co-defendant had proceeded and that the Appellant had been prepared to give such evidence.

6.  Detailed mitigation was offered on behalf of the Appellant on sentence.  The matters put before the Magistrate were, first, his clear record; his willingness to testify for the prosecution; his age which was 66; a large number of letters, attesting his many good qualities, from his friends, family and community personalities; details of his medical conditions (hearing problems, kidney operation, hernia); his donations to charitable causes both before and after the offence; the fact that the payments occurred over a period of time but the amount involved was not very significant and that it was not a case involving a government or public servant.  Further, the Appellant had admitted his guilt when he was first interviewed by ICAC under caution, and had given timely indication of his plea of guilty.

7.  The Magistrate in his Reasons for Sentence recognised the Appellant’s clear record, that he was supported by family, friends, employees and contractors, and that the money involved, comparatively, was small.  However, at paragraph 21, he stated:

“the courts in Hong Kong have steadfastly set their faces against watering-down, or making light of the corrosive effect of corruption.  In the case of Secretary for Justice v. LI Cheuk-ming [1999] 1 HKLRD 59 (English translation at 63)(Application for Review number 2 of 1998) CA, the Court of Appeal held that a community service order is not excluded as a proper sentence even for offences that are serious, including bribery and corruption.  But Chan CJHC said, at 66A,

‘however, bribery and corruption have for ages been regarded as crimes which are intolerable in a civilized society.  They are cancerous activities in a healthy and sound society and their impact to the entire society could be serious, far-reaching and adverse.  They must be eradicated quickly and thoroughly, otherwise they would spread to the whole community like a prairie fire that never burns out and the consequence is disastrous.’ ”

8.  The Magistrate also referred to LAI Yuk-kui v. The Queen [1981] HKLR 691 and R. v. CHAN Koon-kwok, Arthur [1990] 2 HKLRD 458 as authority for the principle that sentences in cases of bribery and corruption should contain the element of general deterrence.  In the latter case, the Court of Appeal stated “attempts to inhibit the spread of corruption necessarily involve an element of general deterrence, even in the case of a first offender, so that the gravity of offences in breach of the Prevention of Bribery Ordinance may be properly marked”.

9.  In LAI Yuk-kui, the Court of Appeal laid down the following guideline: “an immediate custodial sentence should normally be imposed whether the offender is a public officer or not.  The usual minimum imprisonment for relatively minor cases of corruption in the public sector should be twelve months”.

10.  The Magistrate considered other, similar, cases which he examined in the context of his Reasons for Sentence.

11.  The Magistrate (at paragraph 37) stated:

“I did not consider the personal and family circumstances of the appellant amounted to exceptional circumstances.  His medical condition reflected age and the anxiety of waiting for the trial to conclude.  Such condition was not so serious that, in itself, it should be regarded as an exceptional circumstance.  There were other members of his family who were capable of running the appellant’s business with the aid of loyal staff in the absence of the appellant.  The appellant’s good works did him credit but did not amount to exceptional circumstances.  I acknowledged that the practice of giving general sweeteners was common in the catering industry.  I considered that the appellant was fully aware of the unlawfulness of such practice and did nothing to resist ‘going with the flow’.  A person in his position should have used his authority and standing within the catering and general communities to demonstrate that he would stand up for generally accepted standards of probity and honesty and refuse to adopt prevalent corrupt practices.”

12.  The Magistrate decided that the only way of dealing with this Appellant was to pass an immediate custodial sentence.  He took a starting point of 9 months.  He gave the Appellant credit for his plea of guilty and reduced the sentence to 6 months.  He then noted The Queen v. YAM Im-kun Criminal Appeal 680 of 1996 as authority for the proposition that the Appellant should be given credit for his offer to give evidence and for his having made and fully adopted a witness statement.  The Magistrate accepted that some discount should be given for those factors and further reduced the sentence to 5 months.

13.  The Appellant’s co-defendant was sentenced at the same time to a period of imprisonment of 6 months, calculated on the same basis as the Magistrate had calculated the sentence for the Appellant.  He did not, however, give the co-defendant any further reduction.

14.  In passing, I note that the Magistrate could have dealt with D2 by reducing the discount for his plea, to below 1/3 e.g. 20% or 25% to recognise that his was a late plea, made at the door of the trial court.

Perfected Grounds of Appeal

15.  Ground 1 stated that the Magistrate erred in taking a starting point of 9 months for the Appellant and his co-defendant, as their relative culpability should be reflected by different starting points.  In particular, the Magistrate should have taken into account that it was the co-defendant who had made the approach to him for payment of money.

16.  Ground 2 alleged that the Magistrate failed to give sufficient credit for the Appellant’s willingness to give evidence for the prosecution.

17.  Ground 3 was that the immediate sentence of 5 months was manifestly excessive, as the Magistrate failed to take into account, sufficiently, the Appellant’s personal circumstances, in particular, his old age and failing health.

18.  To deal with Ground 3 first, the Magistrate’s Reasons for Sentence shows that he took careful note of the personal circumstances of the Appellant, that he did take them into account, but he found, rightly in my view, that there were no exceptional circumstances which would justify a substantial discount.  Accordingly, Ground 3 is dismissed.

19.  When considering Ground 1, I found that the Magistrate correctly treated deterrence as part of the sentence; that as the authorities indicated, absent special circumstances, a sentence of immediate imprisonment was necessary, and that the Magistrate adopted an appropriate starting point.  It was not, as in the case relied on by Mr Lok, SC, who appeared for this Appellant, similar to the case of HKSAR v. Chow Kam Yuen HCMA 250/2007 (unreported).  That case involved different considerations and circumstances, and was effectively a single transaction.  In the instant case the giving and receipt of a general sweetener had covered a period of 2 years.

20.  Counsel for the Appellant submitted that the Appellant had neither asked his co-defendant to do something extra which he should not do, nor to refrain from performing his duty as he should.  That is not a matter which bears greatly on the starting point of the sentence in this type of case.  Indeed, it might be considered that the perniciousness of a system of general sweeteners could be even more damaging to society, than one where specific tasks are performed for the advantage offered.

21.  On Ground 2, which alleged that the Magistrate failed to give sufficient credit for the Appellant’s willingness to give evidence, I have some sympathy for the Appellant’s submission.  The Magistrate, while he gave credit for the offer to give evidence, failed to take into account sufficiently the effect of the Appellant’s plea on D2.  The chronology shows that D2 decided to change his plea only when he realised that the Appellant was going to give evidence.  Some additional credit therefore could be given to the Appellant, for that effect of his offer to testify.

22.  Accordingly, I allow this appeal against sentence by a further reduction of one month’s imprisonment, to recognise that the non-prejudicial statement and his offer to give evidence were instrumental in effecting D2’s change of plea.

23.  Accordingly, I quashed the sentence of 5 months’ imprisonment imposed by the Magistrate, and substituted for it a sentence of 4 months’ imprisonment.

24.  To that extent, the appeal is allowed.