HKSAR v. SIDNEY CHARLES PINCHES

HCMA206/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.206 OF 2000

(ON APPEAL FROM ESCC 209 OF 2000)

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J U D G M E N T

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1. The appellant was sentenced on 3 February 2000 in respect of three charges of accepting an advantage as an agent, contrary to section 9(1)(b) of the Prevention of Bribery Ordinance ("the Ordinance"). He had entered a plea of guilty to each of the charges at the earliest opportunity. He was sentenced to six months' imprisonment on each charge and the sentences were to run concurrently.

2. The facts in brief were that the appellant, whilst employed as the Chief Estate Manager at part of Taikoo Shing residential estate and in the course of his employment, accepted from a company that had been awarded the maintenance contract for Phase II of the estate at a total of about $300,000 over the three charges.

3. The magistrate took as a starting point for each of the offences a period of 12 months' imprisonment on each charge which he reduced to eight months by virtue of the early plea. He further reduced the term of imprisonment for each charge to six months' imprisonment to reflect the previous exemplary character and the service of the appellant to the community. He made an order that each of the sentences to run concurrently. The appellant now appeals those sentences.

4. Mr Jenkyn-Jones, for the appellant, argues two grounds of appeal. Firstly, that the magistrate did not take into account the undertaking by the appellant to appear in court proceedings as a prosecution witness as a factor entitling a further reduction of penalty or a factor justifying suspension of the sentence. Secondly, that the magistrate erred, in any event, in not suspending the sentence.

5. The magistrate cannot be criticized for failing to place weight upon a bare undertaking by an accused to give evidence at a future time for the prosecution. In R v. Wong Kam Chiu [1993] 2 HKC 700, Keith J held that where a promise is made to give evidence upon a future occasion by an accused, it is not a mitigating factor and that it is inappropriate to discount an accused's sentence to take into account a promise which he may choose not to fulfil. The appropriate course is to either defer sentence until he has had the opportunity to deliver upon his promise, or to sentence forthwith, ignoring the promise, leaving the Appellate Court or the Chief Executive to give the proper discount after he gives his evidence.

6. The latter situation is the one before me and I do propose to make further allowance for the matters which have arisen since sentencing by the magistrate, but it cannot be said to be wrong for him to have failed to take these matters into consideration.

7. The section of the Prevention of Bribery Ordinance pursuant to which the appellant entered pleas of guilty and the facts that he agreed makes this a serious matter. In Secretary for Justice v. Kwan Chi Cheong & Others, CAAR1/99, Stuart-Moore V-P said :

" The sanction in respect of offences contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap.201.

...

The Prevention of Bribery Ordinance provides the sanctions necessary to deal with breaches of this kind. The Ordinance was intended to be draconian in its effect. Bribery, whether in its acceptance or by the offering of an advantage, is an evil which can strike at the heart of commercial and public life if it is left unchecked. A punishment that fails to deter will produce all the wrong signals just as sentences which act as a deterrent will reinforce this community's efforts to rid itself of corruption.

For these reasons, even the first offender charged with an offence of corruption under the Ordinance, unless it is merely a technical breach, must usually expect a deterrent sentence. This will almost invariably involve a sentence of immediate imprisonment."

And the learned V-P said further :

"... In cases of corruption, where an advantage is offered or accepted, it is difficult to envisage a situation where public interest does not require deterrence to predominate. The personal circumstances of the offender will carry less weight. This, it seems to this Court, should apply whether the corruption is in the public sector or in the private sector. It may be that in some cases of public sector corruption the offences will be more serious but that is a matter which can be reflected in the length of sentence rather than the mode of sentence."

8. Reflecting those sentiments, the magistrate cannot be said to have been wrong in taking as his starting point a period of 12 months' imprisonment. Nor can he said to have been wrong even taking the restitution, personal background, health factors and remorse of the appellant and the factors concerning his family in the consideration that he was wrong in not suspending the sentence finally arrived at.

9. I am now in a position different from that faced by the magistrate. I have before me material indicating the appellant has done good works whilst waiting for the appeal, being an indication of his further remorse. He has given evidence in a corruption trial in accordance with the proof he gave the prosecution authorities and thereby assisted the prosecution in those proceedings. I have also before me the effect the circumstances have had upon the health of the wife of the appellant and broadly the effect of this has had on his family.

10. I accept that all these matters warrant a further reduction of sentence. Mr Jenkyn-Jones, who has very effectively argued all that could be said on behalf of the appellant, urges me to suspend the sentence. I am unable to do so. This is not a technical breach of the Ordinance. The family's circumstances and the personal considerations of the appellant have force but they are not such as to make an exceptional case to warranting the departure from the normal course of an immediate custodial sentence.

11. Given the appellant the greatest allowance for the new factors before me, the appeal against sentence is allowed to the extent that the sentence is varied and reduced to one of three months' imprisonment on each of the charges. The sentences are to be served concurrently.