R. v. LIEW KWOK SHAN, WILLIAM

IN THE COURT OF APPEAL

1995, No.405
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter faced two charges. The first was soliciting an advantage contrary to the Prevention of Bribery Ordinance. It was alleged that being a public servant, namely the Chief Engineer of the Transport Department, on or about 23rd March 1994, he without authority or excuse solicited an advantage, namely a fee, reward of commission of $400,000 from one Kenny Kong as an inducement to or a reward for or otherwise on account of his assisting any person in the transaction of any business with a public body, namely assisting Ka Ha Development Company in its application to the Transport Department to develop a car park at No.1 Ma Hang Chung Road. The second offence was accepting an advantage. In the particulars of offence it was alleged that on 7th April he, without authority or excuse, accepted an advantage of $100,000 from Kenny Kong as an inducement to assist in the application of Ka Ha Development Company to the Transport Department to develop the car park mentioned in the first charge. He pleaded not guilty to both of those counts and was found guilty after trial in the District Court before Deputy Judge Line. He was sentenced to 4½ years on the first count, 2½ years on the second count and the sentences were ordered to be concurrent. He now seeks leave to appeal against those sentences contending that the sentences were wrong in principle and were manifestly excessive.

2. It was the Crown case that on 23rd March Mr. Kong,. who was the Project Manager of Ka Ha Development Company Limited, the applicants in relation to a proposal to establish a specialized car park, was introduced to the applicant at the Fat Siu Lau Hotpot Seafood Restaurant in Mongkok. During a conversation the applicant told Mr. Kong that he could help him to overcome the Transport Department's objection to the project. He solicited a reward of $400,000 from Mr. Kong for his assistance which he asked be paid by four instalments.

3. On 31st March a further meeting occurred and arrangements were made at that meeting for the first instalment of $100,000 to be paid. On 7th April the applicant met Mr. Kong at the Tiffany Restaurant and, after discussion and after the applicant had made some amendments to a letter Mr. Kong was to send to the Commissioner of Transport, $100,000 was handed to him by Mr. Kong. That money was later recovered from the applicant's pocket by investigating officers from the I.C.A.C.

4. It is contended by Mr. Egan, who appears for the applicant, that the trial judge failed properly to comprehend the criminality of the applicant, who was "an odd man", when that criminality is set in the context of all of the surrounding circumstances. The appeal relies heavily upon the opinion of Dr. Connell, a psychiatrist, as to the mental condition of the applicant. Dr. Connell having seen him concluded that:

"Mr. Liew suffers from the psychiatric condition known as paranoid personality disorder and at the time of the alleged offences was in an anxious and non-coping state. His condition, however was not so severe as to mean he did not know what he was doing. His alleged actions are explicable in terms of an odd man with a significant personality problem overwhelmed by the conflicting demands of an angry family and a pregnant lover. As he had, in 1965, he decompensated. On this occasion he allegedly acted in an illegal manner in an attempt to solve his dilemma. It was not to be a solution, he lost his freedom, job and baby.

5. Opposed to that opinion there was before the trial judge a report from Dr. C.H. Yuen, a visiting psychiatrist of the Siu Lam Psychiatric Centre. His conclusion is stated as follows:

"In my opinion, defendant is not suffering from any mental disorder that would warrant in-patient psychiatric treatment. It also appears to me that his offence was not related to any mental abnormality."

6. As it is contended that the trial judge failed properly to comprehend and give weight to the material before him, it is necessary to look with care at his reasons. He commenced by observing, quite correctly, that corruption is something that the public rightly dread which can cause immense damage to Hong Kong. He pointed out that the applicant had betrayed the trust of his employer and the trust of the people of Hong Kong. He referred to the position which he held and to the not insubstantial amount of $400,000 which he sought to obtain. He commented that the conduct of the applicant was planned and thoughtful. He referred to the report of Dr. Connell to the effect that the applicant was suffering from a paranoid personality disorder. He then went on as follows:

"The relevant factual background is this: that you had been married since 1968; you had four children; in mid 1993 you took a mistress; the affair was intense; in November 1993 your wife found out; she and your children wanted you to give up the affair and you would not; you felt you could not divorce; your mistress became pregnant; you badly wanted to purchase a small flat for her; corruption was a quick way to find the money. It was also said to be the case that you were disaffected at work, carrying long term grievances and being subject to particular disappointment at the beginning of 1994.

Mr. Egan realistically cannot argue but that your motive was this need for the money, but he says that this was only superficially so; that beneath it you were unable to deal with the stress and the problem due to your psychiatric illness.

If, by reason of a genuine psychiatric illness, a man is not subject to the usual restraints which keep his conduct within the law, there is mitigation for his stepping without it. I cannot find such mitigation here:

I have no doubt that Dr. Connell, consistent with his professional obligations, has put the case for you as high and as well as he can. His opinion is that your actions were 'explicable in terms of an odd man with a significant personality problem overwhelmed by the conflicting demands of an angry family and a pregnant lover;. If the disorder he diagnosed had the effect of removing those normal constraints on human behaviour he would have said so.

Appendix B to Dr. Connell's report describes the diagnosed disorder. It does not include any such disinhibiting features and defines the essence of the condition as being a pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent. As regards the patient's response to stress, it is said that very brief psychotic episodes lasting minutes to hours may be experienced.

The course of corrupt conduct here was extended, thoughtful and planned. It was not the result of brief psychotic episodes: one only has to look at the timetable and listen to the tapes.

There is no evidence to suggest that the real or imagined grievances at work provided the motivating force of the crimes.

The link between the disorder and the crime is not sufficient to provide the mitigation claimed.

All the available evidence leaves me in no doubt that the opinion of Dr. Yuen, the visiting consultant psychiatrist to Siu Lam Psychiatric Centre, was sound. It appeared to him that the offence was not related to any mental abnormality.

The trial judge later went on:

"I remember that you have never been in trouble before; that you have enjoyed a good and respectable character; that you have a history of public service; that you can call upon men of rank who have long known you to speak well of you. Your fall is a heavy one. These matters have to be balanced against the fact that part of the mischief of this sort of corruption is that it can only be committed by those thought to be worthy of trust. The very qualities that you pray in aid are the ones that should have kept you clean and free of corruption."

He points out that the applicant was not entitled to claim any credit for a plea of guilty, which would have exhibited a degree of remorse. He referred to the maximum sentence of seven years and was satisfied that he should impose a sentence of five years on the bribe charge and three years on the accepting charge. He, however, felt that, given the character that the applicant had once held, and the losses which he would sustain, he could properly, in each case, reduce those sentences by six months. He referred also, quite properly, to the fact that offences such as this call for sentences which contain an element of deterrence. He said finally:

"The message must be clear to any senior public officer who is minded to take a bribe in the exercise of his duties: if you are caught and convicted the sentence will be heavy."

7. In his first ground Mr. Egan contends that the starting point was too high. We cannot agree. We consider that five years and three years were proper starting points for offences of this kind.

8. It is next contended that there was a failure to take proper account of the mitigating circumstances. The trial judge, in our view, fully comprehended the matters that were before him. He gave them careful consideration and he properly weighed them. We are satisfied that he gave not unsympathetic consideration to the mitigating circumstances as he found them to be. His assessment of the weight to be given to the psychiatric evidence was one which he was entitled to make and was, further, one in which we have no hesitation in concurring. The sentences were, we are satisfied, neither wrong in principle nor manifestly excessive and the application must, therefore, be refused.