HKSAR v. NG YIP WAN

DCCC 1111/1994

[2022] HKDC 265

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1111 OF 1994

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REASONS FOR SENTENCE

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1.  D1 Ng Yip Wan appeared before me being faced with a Charge Sheet consisting of 9 charges. Charges 1 and 2 are charges of Conspiracy to offer an advantage to a public servant or public servants, contrary to section 4(1)(a)  of the Prevention of Bribery Ordinance, Cap 201, and sections 159A and 159C of the Crimes Ordinance, Cap 200. Charges 3 to 9 are charges of Offering an advantage to a public servant, contrary to section 4(1)(a)  of the Prevention of Bribery Ordinance, Cap 201.

2.  D1 pleaded not guilty to Charges 1 and 2, but guilty to Charges 3 to 9. Prosecution asked that Charges 1 and 2 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

3.  Particulars of Charges 3 to 9 are that he, on a certain day in 1994, in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely a gift, fee, reward, or commission in a certain sum of Hong Kong currency to a certain public servant of the Territory Development Department, as an inducement to or reward for or otherwise on account of his performing or abstaining from performing an act in his capacity as a public servant, namely carrying out lax inspections of the works of Siffa Engineering Ltd in respect of construction work at Tsing Yi Park and not causing any difficulties thereto.

4.  For Charges 3 to 8, the certain sum was $10,000 and the certain public servant was Law Wai Tak, an Inspector of Works.  For Charge 9, the certain sum was $7,000 and the certain public servant was Lau Hon Pang, a Works Supervisor.

5.  For Charge 3, the certain day was a day unknown in February or March 1994.  For Charge 4, the certain day was a day unknown in March or April 1994. For Charge 5, the certain day was a day unknown in April or May 1994.  For Charge 6, the certain day was a day unknown in May or June 1994.  For Charge 7, the certain day was a day unknown in June or July 1994.  For Charge 8, the certain day was a day unknown in July or August 1994.  For Charge 9, the certain day was 1 September 1994.

Facts admitted by D1

Charges 3 to 8

6.  D1 was a site agent of Siffa Engineering Limited which was a sub-contractor of a government project in respect of construction works at Tsing Yi Park.

7.  On a day in early February 1994, Law Wai Tak (“Law”), an Inspector of Works of the Territory Development Department (“TDD”)  of the Hong Kong Government solicited bribe payments from D1 in return for Law not questioning the standard and quality of the works being carried out by Siffa.

8.  After discussing the matter with the person in charge P and obtaining his agreement, D1 paid Law $10,000 in cash each month between February and July 1994 in return for Law carrying out lax inspections of the work of Siffa at the Tsing Yi Park site and abstaining from causing any difficulties thereto.

Charge 9

9.  In May 1994, Lau Hon Pang (“Lau”), a Works Supervisor of TDD, found that part of the work done by Siffa was not up to standard and Law had taken a lax attitude towards the works standard of Siffa.

10.  On 1 September 1994, having obtaining P’s prior agreement, D1 handed over $7,000 in cash to Lau in return for the latter carrying out lax inspections of the work and abstaining from causing any difficulties thereto. D1 was arrested by the ICAC on the same day.

11.  Under caution, D1 admitted after he obtained the agreement of P, he paid Law each month between February and August 1994 as bribe.  D1 also admitted he paid $7,000 as bribe to Lau on 1 September 1994.

12.  On 4 November 1994, D1 was charged and the case was later transferred to the District Court.  At the PTR conducted in District Court on 31 July 1995, D1 was granted bail to appear for trial on 11 September 1995.  However, on the return day, he did not turn up in court but left for the Mainland the same day.  The trial judge issued a warrant of arrest against him.

13.  On 10 March 2021, D1 returned to Hong Kong from the Mainland.  He was re-arrested by the ICAC on 13 April 2021.

Criminal record

14.  D1 has one minor conviction record more than 40 years ago for which he was fined.

Antecedents

15.  D1 is aged 93 (65 at the time of the offences), was a site agent of an engineering company.

Mitigation

16.  Ms Flora Cheng of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

17.  D1 had been a foreman for a long time and had participated in a large number of construction projects both in Mainland and Hong Kong.  His last job was as the Site Agent of Siffa until he was arrested by the ICAC on 1 September 1994 for the present offences.

18.  D1 is a widower with 7 children.  The sons have emigrated while the daughters are in Hong Kong.  The youngest daughter remains single and has written a mitigation letter (more below).

19.  The background to the offences was D1 was recruited by the person in charge of Siffa who was also a former colleague whom D1 had known for over 20 years back then.  The task for D1 was that he was to be the Site Agent of Siffa in the Tsing Yi Park project for a monthly salary of $15,000.  His main duties were to supervise the workmen, to promote site safety, to monitor work progress and to liaise with officers of TDD who were responsible for the overall management of the project.  Law, the TDD officer under Charges 3 to 8, was picky on the standard of work carried out by Siffa and was making things difficult for Siffa such that the work progress was disrupted and delayed. When Law solicited bribe from D1, the latter reported the situation to the person in charge who agreed to pay Law money in order to smoothen out the relationship. D1 then made payments to Law.  The money was paid out of Siffa’s operating expenses as “general sweetener” to Law with the hope that the works undertaken by Siffa could be carried out efficiently.

20.  D1 has no personal benefit in offering payments to Law.  He was dismissed by Siffa after his arrest and was unable to get employment in the same field as news spread fast in the industry.

21.  After he was granted bail pending trial, he went to Zhuhai to undertake some casual maintenance and refurbishment work to maintain his living.  He returned to Hong Kong on 9 September 1995 intending to prepare for trial that was to start 2 days later.  The person in charge ie his employer did not arrange any legal representation for him.  D1 was in panic as he did not know how to handle the trial on his own.  At the age of 62 (sic)  then, he did not know how to face his family for having committed such a serious and disgraceful mistake at the verge of retirement.  He could not sleep the night before trial and struggled hard till the next morning.  Acting in the spur of the moment, he left Hong Kong for Zhuhai avoiding the trial altogether.

22.  From then on, he worked in a fast food shop and worked at various construction sites.  He lived in solitude in the Mainland and did not return to see his wife for the last time in 2005.  When he reached the age of 90, he could not find any job and had nowhere to live.  This, together with his weakened physical health, meant that he had no choice but to return to Hong Kong.

23.  D1 frankly admitted his wrongful acts and cooperated with the investigators by providing full circumstances of the offences.  But for those admissions, there would have been insufficient evidence to prove the payment of advantages under Charges 3 to 8.

24.  There is no suggestion in the case that public health or safety has been compromised in the Tsing Yi Park project.  There is no suggestion either that any public revenue was depleted to make good inferior quality of works in the project.

25.  Due to his old age and the physical conditions following from that, there is not much quality of life left in him.

26.  D1’s criminality is not the worst of its type.  The offences were committed with the same factual background and continued for months because D1 was in employment and wanted to get on with his duties.

27.  D1’s greatest mitigation is his pleas of guilty, though very much belated.  It is acknowledged that imprisonment is evitable.  It is accepted that D1 would not be entitled to the usual 1/3 discount after he has absconded for over 25 years.  Nonetheless, the court is urged to give him a discount of 20 to 25% for his guilty pleas.

28.  The court is asked to apply the totality principle and to deal with D1 leniently.

29.  The contents of the one mitigation letter are generally that D1, because of his extreme old age, now suffers from various ailments associated with old age such as hyperlithria, gout ostealgia and hypertension; that D1 now stays in the nursing ward of the reception centre; and that a lenient sentence is asked for.

30.  Having been told by the prosecution that the records showed that D1 actually had legal representation on the first day of trial despite his absence, Ms Cheng submitted on behalf of D1 that there were some communication problems between D1 and his ex-employer ie then D2 Mr Wong leading D1 to believe that he would be without legal representation.

Sentence

31.  I note the advanced years of D1.  Because of the age of his only criminal conviction, I will treat D1 as a person of clear record.

32.  The maximum imprisonment penalty for the subject offence is a term of 7 years though there is no tariff sentence for this offence.

33.  However, deterrent sentences are inevitable in a case of bribery because of the community’s expectation that corruption be stamped out.  One case is one too many.

34.  Taking into account the year in which the offences occurred and the amount of each bribe, for each charge, I shall adopt a starting point of 2½ years.

35.  D1 did not plead guilty at the earliest opportunity.  Instead he fled from the court process for more than 25 years.  From the records, D1 had been legally represented since November 1994 first by Legal Aid Counsel and then by a firm of solicitors.  A counsel was actually briefed to attend his trial on 11 September 1995.  Hence, I do not accept his explanation proffered through his present counsel for evading trial.  He cannot expect to obtain a 1/3 discount. Because of the huge time gap, I can only give him a 20% discount.

36.  For his de facto clear record, I will give D1 an extra credit of one month.

37.  The only other factor that I can see which may have a downside effect on his sentence is his extreme old age.  He certainly did not earn this benefit and he cannot be seen to have gained this benefit by the act of fleeing.  On each charge, I will further knock off a term of 3 months after the 20% discount and the earlier one-month reduction only as an act of mercy in the exercise of my discretion.  I simply hope that he stays reasonably healthy during his sentence term.

38.  Here, seven offences of the same nature took place at different times over a period of about 7 months.  There is no basis for making the respective sentences run even partially concurrently.  However, having considered the principle of totality and taking a global view of the matter, I adjudge a global starting point of 4 years 7 months would meet the criminality of D1.  As said, he will enjoy a reduction of 1/5 for very late pleas of guilty.  For his de facto clear record and his extreme old age, I will further take off 8 months (globally)  after the 1/5 discount.

39.  The following are the individual sentences.

40.  For each of Charges 3 to 9, D1 shall go to prison for 20 months.

41.  I order that 2 and 2/3 months of each of the sentences on Charges 4 to 9 to run consecutively among themselves, and the result is to run consecutively to the sentence on Charge 3, making an aggregate sentence of 36 months’ imprisonment.