HKSAR v. KWAN KWOK LEUNG

DCCC 896/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 896 OF 2011

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REASONS FOR SENTENCE

The defendant faces a charge of "Conspiracy for a public servant to solicit an advantage". On 10 November 2011, he pleaded guilty before H.H. Judge Browne.

2. At the joint request of prosecution and defence, sentencing was adjourned pending the defendant's giving evidence against Mr. LAI Yuk-leung, Eddie, a co-conspirator named in the charge who was charged with the same offence (but at a later time), in a separate trial (DCCC 1395/2011) which took place in April 2012.

3. I was the trial judge in DCCC 1395/2011.  I heard and assessed the defendant's evidence.  A copy of my Reasons for Verdict has been given to parties in the present case for the purpose of mitigation.

Summary of Facts

Background

4. On 4 June 2006, a homicide took place near the Fanling train station.  The suspect assailants included MOK Yu-chuen, MOK Yu-wing (MOK Yu-chuen's younger brother), TSOI Ho-ming and CHAN Ka-wing.

5. On the same day, DSIP WONG Shu-bong took charge of the case.  He assigned DPC 34874 to be the investigating officer, and DPC WONG Wing-kai (a co-conspirator named in the charge) to assist.

6. Investigation revealed that the MOK's brothers have fled to the mainland.  Thus, they and several other suspects were put on the Immigration "Stop List" and the Police "Wanted List".

7. Meanwhile, CHAN Ka-wing and TSOI Ho-ming were arrested by the Police.  WONG Wing-kai was TSOI's arresting officer.  After arrest, TSOI led the Police (including DSIP WONG and WONG Wing-kai) to the crime scene.  An iron pipe was recovered.  TSOI told to Police that he saw one of the assailants dropping that iron pipe at the scene after attacking the deceased victim.

8. CHAN Ka-wing and TSOI Ho-ming were charged with "Murder".  Both of them were found guilty of "Manslaughter" after trial.  They were sentenced to 5 years' and 7 years' imprisonment respectively on 15 June 2007.

9. On 20 July 2007, DSGT 17963 and DPC 34874 interviewed TSOI Ho-ming at prison.  TSOI gave a witness statement declining to testify against any other suspects in the murder case.  Similarly, CHAN Ka-wing had also refused to co-operate with Police in the murder investigation.

10. In the course of locating the MOK's brothers, the Police found their father MOK Shu-yick.  His mobile phone number was recorded in the case file.

The Defendant's Involvement

11. The defendant was a schoolmate of MOK Yu-chuen.  In mid-2007, the defendant called MOK Shu-yick at his mobile phone.  MOK asked the defendant how he obtained his phone number.  The defendant replied that it was provided by a police officer named Ah Kai (i.e. WONG Wing-kai), who was responsible for the murder investigation.  The defendant invited MOK to come out for a chat.

12. The defendant, MOK Shu-yick and MOK's wife met in Fanling.  The defendant told MOK that he could arrange for a meeting with Ah Kai and that Ah Kai might be able to "help".  MOK agreed.

13. A few days later, the defendant, MOK Shu-yick and MOK's wife met again in Fanling.  The defendant told MOK that Ah Kai could go to Shenzhen to meet MOK Yu-chuen.  MOK agreed.  A few days later, the defendant told MOK that MOK should buy Ah Kai massage and/or other entertainment.  MOK said he did not have money.

14. A few days later, the defendant, Ah Kai, MOK Shu-yick and MOK's wife dined at a hotel in Shenzhen.  Ah Kai briefly told MOK about the investigation progress and that he had just transferred to another section.  Ah Kai said he could arrange a lawyer for MOK's 2 sons.  The defendant then said to MOK "Now that Kai Gor could help you, you should give some 'tea money' to him".  MOK did not accede to the request because it was illegal.  Before leaving the hotel, the defendant asked MOK again whether he had about $1,000 cash to pay Ah Kai for his help.  MOK refused.

15. A few days later, the defendant went to Fanling to have a chat with MOK Shu-yick.  He asked MOK for a few thousand to ten thousand dollars cash to give to Ah Kai thanking him for his help.  MOK refused.

16. A few days later, the defendant phoned MOK Shu-yick telling him that he would bring a lawyer to a meeting together with Ah Kai, and the legal fees would be $13,000.  MOK said it was too expensive and he did not want a lawyer.  The defendant told MOK that Ah Kai had already made arrangements and the plan could not be changed; or otherwise, they could not help his sons.  MOK agreed with reluctance.

17. On 8 September 2007, the defendant, Ah Kai, MOK Shu-yick, MOK's wife, the MOK's brothers and LAI Yuk-leung, Eddie met for dinner at a hotel in Shenzhen.  LAI was a Legal Executive of a law firm in Hong Kong, but was introduced as a solicitor.

18. During dinner, both Ah Kai and LAI supplied information and gave advice to the MOK's brothers.  In particular, Ah Kai revealed that the taxi driver who drove the MOK's brothers to the crime scene on 4 June 2006 had refused to testify; there was no DNA or fingerprint evidence on the weapon (i.e. the iron pipe recovered at the scene); no warrant of arrest had been issued against the MOK's brothers; and TSOI Ho-ming had refused to testify for the prosecution.  Ah Kai also advised the MOK's brothers to return to Hong Kong and to remain silent upon arrest.  After dinner, MOK Shu-yick handed $13,000 cash to the defendant.

19. Some time after the dinner, MOK Yu-chuen phoned the defendant challenging the legal fees.  The defendant explained to him that the legal fees were $8,000 and $5,000 were given to Ah Kai as "tea money".

20. The MOK's brothers returned to Hong Kong by sea on 13 September 2007.  They were intercepted and arrested by the Police.

21. The MOK's brothers were charged with "Murder".  After trial, MOK Yu-chuen and MOK Yu-wing were found guilty of "Murder" and "Manslaughter" respectively.  TSOI Ho-ming testified for the prosecution in their trial.

The Arrest of the Defendant

22. The defendant was arrested by ICAC officers on 27 April 2011.  Under caution, he admitted that in mid-July 2007, he came to know Ah Kai at social gatherings.  He learned that Ah Kai was handling the homicide investigation involving the MOK's brothers.  The defendant then obtained MOK Shu-yick's mobile phone number from Ah Kai.  He phoned MOK and arranged for a series of meetings.

23. The defendant further admitted that some time after he came to know Ah Kai, he, Ah Kai and LAI Yuk-leung, Eddie had met up in a bar in Mongkok.  At that meeting, the trio reached an agreement to solicit $13,000 from MOK Shu-yick as a reward for Ah Kai disclosing information about to the homicide investigation.  The trio agreed that the defendant and Ah Kai would each receive $3,000, whereas LAI would take $7,000.  As a result, the defendant approached MOK and solicited the said amount.  After receiving the payment from MOK, the defendant took his share of $3,000 and the remaining sum was shared between Ah Kai and LAI.

Mitigation & Sentence

24. The defendant is now 31.  He has 10 previous conviction records since 1995, most of which are related to violence.  The defendant is married with a 2-year-old daughter.  Prior to his remand in jail custody, the defendant worked as a van driver.  At present, his wife would pick up some night shift work at a convenience store.  A letter from the defendant was handed up.  Its contents are duly noted.

25. Defence counsel Mr. CHEUNG submitted that notwithstanding my Reasons for Verdict in DCCC 1395/2011, the defendant has given evidence as a prosecution witness in the trial of LAI, a co-conspirator. His effort ought to be reflected in his sentence.  Mr. CHEUNG has also indicated that the defendant is prepared and willing to testify against WONG Wing-kai, who has jumped ICAC bail, should the need arise upon his apprehension.

26. Mr. CHEUNG has submitted 2 cases A-G v YIP Hoi-fai [1996] 2 HKCLR 135 and The Queen v KWOK Siu-wa HCMA 689/1995 for my reference.  Through my own research, I discovered a case HKSAR v LAU Kwok & others CACC 529/2001 (dated 9 May 2003), the facts of which bear some common features with those in the present case.  LAU Kwok also involves police officers meeting fugitives of a wounding case outside the territory, accepting an advantage in cash and taking steps to help them escape criminal liability.  The Court of Appeal upheld the sentence of 4 years' imprisonment for the 2 police officers and 3 years for a civilian co-conspirator, who was one of the suspects in the wounding case.  All 3 appellants in LAU Kwok were convicted after trial. 

27. Yeung JA (as he then was) made the following remarks in the judgment in LAU Kwok:

"The circumstances pertaining to conspiracies to commit a crime vary from case to case and it is difficult to lay down sentence guidelines. To that extent, sentence in other cases may not be too helpful. The background and circumstances of each case must be looked at.

While the charge is 'conspiracy for public servants to accept advantages' and the amount involved is not too substantial, it must be borne in mind that the purpose of the conspiracy was to enable suspects in a serious crime to escape possible conviction. It must also be borne in mind that the conspiracy involved police officers who had been tasked with the investigation of such crime and there is an element of corruption."[1]

28. I accept what the appellants in LAU Kwok did is far more serious than what the defendant and the other 2 co-conspirators did in the present case. Although I have heard the defendant's evidence in LAI's trial, I will sentence him based on the Summary of Facts admitted by him.  For the purpose of sentencing, I note that Ah Kai has only received $3,000 rather than the entire sum of $13,000. In fact, the advantage pleaded in the charge against LAI was amended to $3,000.

29. As revealed in the Summary of Facts, the defendant has all along actively solicited money in the name of Ah Kai from MOK Shu-yick.  The Summary of Facts is, however, silent as to whether Ah Kai had asked the defendant to solicit money from MOK on his behalf.  In any event, I will sentence the defendant only on the basis of the $3,000 received by Ah Kai. I am also aware that the MOK's brothers were duly convicted after trial; what the defendant and/or Ah Kai had done did not lead to any injustice.

30. I adopt a starting point of 2 years' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 16 months.  Since the defendant's evidence in LAI's trial was found not useful, I am unable to give him any meaningful credit.  I consider it just to give him a nominal discount of 1 month to reflect his willingness to assist the prosecution.  Apart from this, I see no mitigating factors which warrant any further discount.  I sentence the defendant to 15 months' imprisonment.