HKSAR v. LUK WAI LUN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 188 OF 1998

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J U D G M E N T

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1. The Appellant was convicted on his own pleas of two offences of accepting an advantage, contrary to Section 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 Appellant now appeals those sentences on the grounds that they are manifestly excessive and/or wrong in principle.

2. The background facts are these. In 1997, the Appellant was employed by a real estate company as a property manager. He was responsible for managing certain commercial properties and in particular for liaising with the tenants of those properties. As an employee, he was prohibited from soliciting or accepting any advantage from tenants.

3. In or about September 1997, 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. From one tenant he received $20,000.00 in cash and a post-dated cheque for a like amount. From the other tenant, he received $10,000.00 cash and was in the process of obtaining a post-dated cheque when he was arrested by ICAC officers.

4. Mr. Ho, who appears for the Appellant has argued a number of grounds of appeal which I shall deal with in turn.

5. First, counsel has argued that the Magistrate failed to direct himself that there was, in the matter of sentencing, a difference between offences of corruption committed by public servants (which are the more serious) and those committed in the private sector (which are less serious). In short, it was counsel's argument that the Magistrate should consciously have reduced the level of the sentences on the basis that the Appellant was acting at the time as the employee of a private company. I regret find nothing in this point.

6. The Appellant was charged under Section 9 of the Ordinance and the Magistrate was obliged only to consider the terms of that section and the applicable penalties. Offences of corruption by public servants are dealt with elsewhere in the statute. In any event, in respect of summary offences, Section 12, which sets out the relevant penalties, does not differentiate between offences committed under Sections 4 or 5 of the statute (which relate to public servants) and offences committed under Section 9.

7. Further, I consider the dicta of Wong J. in R. v. Au Chung Fai (Mag. App. No.1524 of 1994) is of direct relevance:

"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."

8. Second, counsel has argued that, in passing sentence, the Magistrate 'inflated' the seriousness of the two offences by giving to them, if only by implication, the nature of crimes which would somehow adversely affect Hong Kong's international reputation. In this regard, counsel referred to the following remarks:

"You were long enough in the business to know that this was unlawful and yet you chose deliberately to set out to commit this offence abusing your position effectively. The consequences both for yourself and more importantly for your family are entirely the result your own doing. No one else is to blame except you. This is the type of offence which hits at not only the property business but, when it is committed in any business, it hits at the business itself, it affects the customers and it tarnishes the reputation of Hong Kong both internally and internationally."

9. I find nothing ill-advised in these remarks. Hong Kong is an international centre and much of its affluence is based on that fact. Corruption in the local sector is always in danger of spreading to those sectors of our commercial life which concentrate on international trade.

10. Third, counsel for the Appellant has argued that the Magistrate misunderstood the essential nature of the Appellant's conduct, imposing upon it a greater degree of criminality than it deserved. Counsel argued that effectively the Appellant was doing no more than asking for 'key money' and that this was an old custom in the Hong Kong property market. I have received no evidence of the social history of such matters. In any event, I do not accept that there is merit in the submission. Our legislature has seen fit (for good and compelling reason) to make such practices criminal. The fact, therefore, that these practices may have been tolerated in the past by certain disadvantaged persons is of only the most passing relevance.

11. Fourth, counsel has argued that the appellant will feel a justifiable sense of grievance if he is sent to prison when two recent and notorious cases of corruption did not result in similar sentences being imposed. Counsel has not, however, placed any relevant judgments before me. He has only been able to refer in general terms to what has been reported in the newspapers. That, I regret, is of no assistance to me. As counsel is aware (and will no doubt have advised his client) each case must be considered by the courts on its own particular facts.

12. Finally, counsel for the Appellant has submitted that the Magistrate was unaware of certain material mitigating factors which, if he had known of them, would have resulted in a lesser sentence. Certain additional papers have been placed before me. These show that the Appellant served for a long time with the Hong Kong Regiment as a reservist and was commended for his efficiency and loyalty. In addition, it appears that the Appellant's mother suffers from serious respiratory problems and at present she is heavily reliant on the Appellant for her care and upkeep. These are matters of substance. However, the Magistrate did receive evidence of the Appellant's past commercial record and was aware of commendations in that regard. He was also made aware of the Appellant's general family circumstances. He may not have been told about the mother's ill health but there are other family members who can look after the mother. I do not, therefore, believe that these two additional matters of personal mitigation are sufficient to warrant a further discount in sentence.

13. In the circumstances, I am satisfied that the sentences imposed by the Magistrate were correct in principle and were not manifestly excessive. The appeal is dismissed.