THE QUEEN v. TAM CHI HUNG

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JUDGMENT

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Li, V.-P.:

1. This is an application for leave to appeal against conviction and sentence out of time. The applicant was convicted of having in his possession a forged travel document, namely a British (Hong Kong) passport.

2. Having regard to the affirmation filed by the applicant explaining why he was out of time, we feel that leave should be granted.

3. The essential ground in support of his application is that the defence case had not been satisfactorily considered by the trial judge because all the elements in support of an objection to the admissibility of the cautioned statements had not been fairly considered.

4. The main evidence against the applicant is his cautioned statements case he gave upon arrest. In view of the order we are about to make the less said about the evidence the better. Suffice it to say that the applicant was arrested on the 1st of June 1984. He was interviewed by an Investigating Immigration Officer, Mr. Lui, on the same day. It was alleged that he made a cautioned statement voluntarily. Upon objection to the admission of the statement a voir dire was held. Mr. Lui's evidence was that:

"He (meaning the applicant) told me that his baby was sick, and also told me about his business, garment sales."

5. In cross-examination defence counsel put to Mr. Lui vaguely that he assaulted the accused. A substantial portion of the cross-examination was that Mr. Lui did not record everything that was said in the course of the interview. Not a single word was put to Mr. Lui about the sick child. Indeed, the matter was not raised until the applicant himself gave evidence. When the applicant gave evidence of the circumstances under which the statement was taken, he said as follows:

"I said, 'Sir, how can I do so since I hadn't done it.' He threatened me. He said you fucking fellow nothing will happen to you if you admit you will be fined a few hundred dollars. I said I did not do it. I asked can I go now. He said after you have settled the matter. I said I had an appointment to go to Tung Wah Hospital next day for an operation. He said after you identify that person I would be released. I said I did not do it how could I admit. I was cold. I only had on a singlet the air conditioner was on."

6. It is abundantly clear that the matter of inducement was a point that was raised by the accused. It is surprising that when defence counsel cross-examined Lui the question of threat was not seriously pursued nor was a word mentioned about inducement. After the applicant had given evidence in the voir dire, counsel for the Crown cross-examined him. Not a word was asked as to why the question of inducement was raised only when he gave evidence.

7. We do not blame the judge for not taking up the point himself. He had to hold the scale of justice in proper balance. It appears that the question of inducement was never properly put to the investigating officer. Nor was it properly put to the applicant. In the circumstances we are unhappy about the whole conduct of the proceedings. Had the point of inducement been canvassed the point of inducement would give the judge a chance to consider more fully the question of admissibility.

8. Learned counsel for the applicant quite properly conceded that even if the conviction is quashed, there can be no question of a complete acquittal. We have expressed our doubt in this matter. We are inclined

9. We fail to see the first reason. The respondent, up to the time of his conviction, was a man of good character, otherwise he would not have been selected in public service. He might well be a simple man. But the proposition that he did not realise at the time the gravity of his actions, or that he did not instigate the matter into which he was drawn is untenable. He was an Assistant Prison Officer. It is most unusual form an Assistant Prison Officer to discuss his financial matters with a remanded prisoner. Far more surprising was that he disclosed that he was in debt to the tune of $2,000. Before he entered into the service, he must have received some training and made well aware of the prison regulations that to do any favour to any particular prisoner over and above the others, be it for money or not, is a very serious matter. A prison officer has the power to control the inmates of prison and obviously he must do his duty in an honest and fair manner.

10. As to the other reason, the consequences of defendant's conviction would be no more far-reaching and grave than any government servant that has been convicted. These all go to show that those who are appointed to a position of public trust should be very very careful in their behaviour and not to be tempted by any reason, and the least of all financial, to give a preferential treatment to those who are put under his care.

11. Mr. Lugar-Mawson, in his industrious research to which we are much indebted, cites the case of NG Tak-shing ⁽¹⁾ which established that the usual minimum sentence of this nature, even though a first offence, should be 12 months. In this case the Court of Appeal said:

"This Court has made it clear on other occasions that, although the general rule may be that an accused person with a clear record should not normally be given a deterrent sentence, there are exceptions to this general rule. Among these exceptions are cases of unlawful trafficking in drugs, kidnapping, and cases where there is an element of corruption."

Judgment went on to read:

"To these I would add the following additional guidelines. I suggest that magistrates should approach the question of penalty to be imposed for such an offence on the basis that the usual minimum imprisonment should be twelve months. This guideline, of course, is not to be construed as interfering with the usual discretion of a magistrate to impose a lesser or greater sentence when the case justifies it.

12. This remark was directed to questions of corruption and conviction under section 4(1) and section 4(2).

13. In another case, Attorney General v. LEUNG Hung-hang ⁽²⁾, where a prison officer who had been convicted on his own plea of an offence contrary to section 4 of the Prevention of Bribery Ordinance, Cap. 201, for accepting $1,000 from a prisoner for supplying the prisoner with cigarettes was sentenced by a magistrate to a term of imprisonment for 12 months suspended for 3 years and a fine of $3,000. Sir Alan Huggins giving judgment of the court said that the proper sentence was 12 months immediate custodial sentence. The respondent in that case met his girl friend when the suspended sentence was in force and she was pregnant. It would be desireble that the child should be legitimated. That was why the court, instead of applying the usual minimum sentence, imposed. a sentence of 6 months, enable him to get out of prison in time to marry the girl.

14. In the present case, Mr. Sweetnam properly conceded that 4 months imprisonment is on the low side. However, he contends that for this court to review and increase the sentence, it would seem to interfere with the discretion of the trial judge or magistrate. Further, he says that the magistrate had considered the respondent as a simple man who fell victim to the cunningnees of a prisoner and his mother. He did not really instigate the matter. Despite his very very able and persuasive argument, we fail to appreciate how it can be said that the respondent did not instigate the matter into which he was drawn. At least he was a party to such instigation. It cannot be said that he was entirely misled or induced. Once he agreed with the prisoner to supply him with various items, he told the prisoner to be careful and he would try his best. It is fair to say that the respondent was not that simple. Unfortunately for him he found his match that the prisoner and his mother was equally cunning.

15. We feel that 4 months imprisonment for each charge is manifestly inadequately. We accept the principle that in a case of such nature, the usual minimum sentence would be one of 12 months immediate custodial sentence. However, this being a review, we adopt the usual practice by giving a discount to it. For these reasons, we grant the application for review. The sentences are reviewed to the extent that the sentences of 4 months will be set aside, and in lieu thereof, two sentences of 8 months each be imposed. And both sentences to run concurrently.

(1)    Crim.App. 56 of 1979 (unreported)

(2)    Application for Review No. 19 of 1983 (unreported)