HKSAR v. LAU WAH HING FRANCIS

HCMA 945/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 945 OF 2002

(ON APPEAL FROM ESCC 692/2002)

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J U D G M E N T

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1. The Appellant who was the 2nd Defendant in the court below and the 2nd Appellant before this court was convicted after trial before the Magistrate of 2 charges of accepting an advantage as agent, contrary to s. 9(1)(a) and 121(1), Cap. 201. In respect of the 2 charges, he was sentenced to 9 months imprisonment on each charge and the sentences were to run concurrently. In respect of the other charges namely charges of 6, 7 and 8, conspiracy to defraud of which he was also convicted, he was sentenced to 3 months imprisonment on each charge but two of the sentences were ordered to run consecutively to the sentence of 9 months and this makes a total sentence of 15 months imprisonment.

2. The facts were succinctly summarized by Ms Sin in her written submission to the court. Charges 4 and 5 related to the Appellant's employment with PCCW. It was the case for the prosecution that on two occasions, first in January 2001 and then in February 2001, the Appellant accepted advantages from a customer of PCCW in return for the Appellant reserving certain PCCW telephone numbers for the customers.

3. The advantages for the 1st occasion were 3 Chinese puddings and cash $500; for the 2nd occasion, a box of cigar worth about $4,250 and a sweater worth about $300. Although the PCCW allowed the Sales Executive to reserve telephone numbers for customers, it is the policy not to permit any employee to accept any advantage which was given in relation to PCCW's business. In the Appellant's case, the advantage in question was given for reserving telephone numbers and therefore in relation to PCCW's business. No approval had been given by PCCW to the Appellant for him to accept the advantages offered to him.

4. Charges 6, 7 and 8 related to his employment with the Olympia Travel Service Company (OTSC). The prosecution alleged that the Appellant agreed with the 1st Appellant to supply him with false OTSC receipts to enable the 1st Appellant to make false claims under the Hong Kong Bank Holiday Travel Allowance Scheme for the purpose of tax reduction. The Holiday Tax Allowance Scheme was implemented by Hong Kong Bank to allow their employees to exclude a maximum 10% of the annual basic salary from the annual remuneration for tax reduction purpose. An employee who wished to take advantage of the scheme was required to submit receipts of the expenses incurred on holiday overseas travels. The bank would then exclude the amounts so expended from the employee's total remuneration return to the Inland Revenue Department as employee's taxable income.

5. In carrying out the agreement, the Appellant supplied the 1st Appellant the false receipts purporting to have been issued by OTSC for overseas travelling and hotel expenses, which the 1st Appellant had never incurred, for submissions to the bank under the HTA Scheme for the 3 financial years of 1998/1999, 1999/2000 and 2000/2001. As a result, the taxable income of the 1st Appellant for the 3 financial years and extra tax paid by him were correspondingly reduced. The revenue loss by the Inland Revenue Department for the 3 years were respectively $8,296, $8,010 and $5,083. The Appellant received from the 1st Appellant payments of $400, $300 and $200 respectively for these 3 occasions.

6. The 1st Appellant pleaded guilty to these charges before the Magistrate, he was sentenced to 7 months imprisonment. He withdrew his appeal this morning, the appeal is therefore dismissed.

7. Mr Duncan, who appears for the Appellant, very properly conceded that the starting point of 9 months adopted by the Magistrate in relation to the corruption charges was a proper one. He argues however that the offences of conspiracy to defraud are not as serious as the corruption charges and should not attract a sentence of immediate custody.

8. He submits that the sentence overall was too high and the Magistrate had not given sufficient consideration to the Appellant's personal circumstances. He listed a total 6 factors, these are:

(1) the Appellant had a clear record before he committed the present offences;

(2) these offences were rather out of character of the Appellant, having regard to the fact that he had been a good father and husband, hard working man;

(3) none of the offences were initiated by the Appellant;

(4) there was no evidence which suggested that the corruption offences resulted in any dereliction of his duty;

(5) the amount in the benefit he received was modest; and

(6) the Appellant had suffered enormously as a result of the present offences.

9. In the cause of argument, I had been referred to decisions of the Court of Appeal in Secretary for Justice v Kwan Chi-cheong & Anor and the case of HKSAR v Lai Chin-pang.

10. I bear these cases and the facts of this case in mind. I consider that as there was no dispute between counsel that corruption is a serious offence, and must be punished with an immediate custodial sentence, 9 months would be a normal starting point in cases involving corruption similar to the present situation. I do not consider anything wrong for the 9 months sentence imposed by the Magistrate. In my view, it is a proper sentence in circumstances of this case.

11. The Appellant was not tempted by momentarily greed. He would have continued committing these offences had they not been discovered. Another aggravating feature against him was this. After he left PCCW, he more or less adopted the same sort of methods to give forged receipts to customers in return for money.

12. There is only one matter I wish to add and it is that the sentence imposed on the latter charges 6, 7 and 8. Although these offences were committing on different occasions, I think they are of the same nature and having given the matter some consideration, all the sentences of these 3 charges should run concurrently.

13. The total sentence of 6 months for these 3 offences should have been one of 3 months to run concurrently on each other, and since it is one set of offences, I think part of the sentence should be ordered to run consecutive to the corruption charges

14. For these reasons, I order that 3 months of the sentences imposed on charges 6, 7 and 8 should run consecutively with the 9 months sentence and the total sentence would be reduced from one of 15 months to 12 months and the appeal is allowed to this extent.