HKSAR v. LAU KWOK AND OTHERS

CACC 529/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 529 OF 2001

(ON APPEAL FROM DCCC NO. 381 OF 2001)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving Reasons for Judgment of the Court):

1. On 9 May 2003, we dismissed the application for leave to appeal against sentence. We indicated that we would hand down our reasons in due course and this we now do.

2. The applicants, Lau Kwok (A1), So Yiu Kam (A2) and Yiu Yiu-choi (A3) together with another were convicted after trial by Judge Wright in the District Court on a charge of conspiracy for public servants to accept advantages. A1 and A2 were each sentenced to 4 years imprisonment. A3 was sentenced 3 years imprisonment.

3. The application only relates to sentence as the applicants had already abandoned their applications for leave to appeal against conviction.

The Facts

4. On 16 January 1994, Chan Pui Him (the victim) was chopped and wounded by 4-5 attackers at the Kowloon Shangri-la Hotel. A3 was suspected to be one of the attackers.

5. A1 and A2 were both police officers. They were attached to the District Anti-triad Squad of Shamshuipo District and Yau Tsim District respectively. A2 was assigned to investigate into the wounding case and it was A1 who initially approached A2 in connection with the conspiracy.

6. The applicants and their co-conspirators devised an elaborate and well-planned scheme so that A3 and other suspects in the wounding case could avoid conviction. Protagonists in the conspiracy included suspects in the wounding case, their relatives and friends as well as police officers.

7. A3 and other suspects fled to Shenzhen after the wounding case. A1 and A2 were aware of it. Instead of taking the appropriate steps, they had meetings with the conspirators, including a few suspects, both in Hong Kong and in Shenzhen.

8. Arrangements were made for A3 and other suspects to return to Hong Kong separately. They would then be arrested by A2 and his colleagues, detained overnight and granted bail of $5,000 each the following day.

9. Bogus identification parades were held and the victim would fail to make identification of some suspects. Although the victim purported to identify A3 and the case against him was consolidated with the case against other defendants who had been identified earlier, the case against them collapsed when arrangement was made to have the victim "disappeared".

10. The police officers were paid $45,000 for their "effort".

11. The offence took place between 10 February 1994 and 30 November 1995, but it only came to light in 2000 when one of the co-conspirators confessed to the ICAC.

12. The judge had rightly emphasized the seriousness of corruption, particularly when police officers were involved and to that extent A1 and A2 were more culpable.

13. The judge said A1 "displayed active participation in the conspiracy by locating (A2), by undertaking two trips to Shenzhen to meet people whom he knew to be criminal fugitives and by receiving payments even after the first two men had returned to Hong Kong".

14. The judge pointed out that A2 was the investigating officer in the wounding case and yet he "actively participated in the execution of the conspiracy by travelling to Shenzhen to meet the men, by counselling them and by actively executing the terms of the agreement in large part".

15. The judge also pointed out that A3 had benefited from the conspiracy and "he was willing to make money available to any police officers willing to become involved". By "benefited", the judge must be referring to the fact that A3 was able to avoid any possible conviction in respect of the wounding case.

Grounds of Appeal Against Sentence

16. On behalf of A1 and A2, it was suggested that the starting point of 4 years is excessive when the conspiracy did not last long and the amount involved was only $45,000.

17. It was submitted that the judge had failed to take into consideration the personal circumstances of A1 and A2, including their good service records, the forfeiture of their pension rights and the impact of the conviction on their families. It was also submitted that it was wrong to differentiate A1 and A2 from other co-conspirators in sentencing.

18. Mr. McGowan made a half-hearted suggestion that the judge regarded the commendations received by A1 and A2 as aggravating factors when the judge said:

"I recall that (A1) has received 3 commendations during his service in the police: I am told that (A2) has also been commended upon a number of occasions....that makes their fall from grace greater."

19. Such suggestion can be disposed of easily. With respect, Mr. McGowan had misinterpreted entirely what the judge said. The judge was simply stating a fact and not a feature as an aggravating factor.

20. Mr. Marash SC, on behalf of A2 emphasized that A2 did not initiate the conspiracy and that the charge did not involve an allegation of perverting the course of justice.

21. Mr. Ross, on behalf of A3 also suggested that the 3 years imprisonment imposed on A3 was manifestly excessive. Objection was also taken to the following comment by the judge:

"There is no undue delay from the time of the arrest of the Accused until their trial. I do not regard them as entitled to any reduction on this basis although one may have been justified had they indicated at an early stage that they intended to admit the offence and a delay then occurred. It is true that this matter has been hanging over them for some while but their denial of the charge is a factor contributing to that."

22. Mr. Ross pointed out that there had been a delay of over 16 months from arrest to sentence. He suggested that the comment by the judge indicated that A3 would have received a reduction because of the delay. He was however deprived of such reduction because he pleaded not guilty to the charge. In the circumstances, A3's decision of pleading not guilty in effect led to a heavier sentence.

23. We do not agree with Mr. Ross's interpretation of the comment by the judge. The judge had clearly indicated that there was no undue delay and the applicants were not entitled to any reduction on that basis. If the applicants had pleaded guilty to the charge, they would of course be entitled to the usual discount.

24. A period of 16 months from arrest to sentence is not undue delay. If the applicant had pleaded guilty, the period would have been much shorter. It was a complicated case and it occurred many years ago. The trial lasted more than a month.

25. The judge was right in refusing a reduction of sentence on the basis that there was undue delay.

26. Ultimately it boils down to whether the respective starting points of 4 years against A1 and A2 and 3 years against A3 are manifestly excessive.

27. The circumstances pertaining to conspiracies to commit a crime vary from case to case and it is difficulty 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.

28. 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.

29. The judge was right in saying that the criminality involved was similar to one of conspiracy to pervert the course of justice and that it assumed additional gravity when it involved police officers.

30. The offence giving rise to the conspiracy was "wounding with intent". The full details of the offence and the nature of the injuries suffered by the victim had not been disclosed. The suggestion by the prosecution was that 4-5 men armed with knives chopped and wounded the victim.

31. It is not possible to state with precision the likely sentence for those who took part in the attack but the starting point could have easily exceeded 3 years imprisonment.

32. In serious corruption case involving payment of money to a police officer, a starting point of 36 months' imprisonment has been said to be appropriate even when it is the police officer who approaches the accused and demands bribes. In A.G. v Chan Kin Keung A.R. No. 2 of 1996, this court made the following comment:

"In our view, having regard to the authorities, a starting point of 36 months' imprisonment after trial is appropriate...In respect of the particular circumstances of this case, namely that it was the senior police officers who demanded money from the respondent...."

33. Chan Kin Keung (supra) was followed in A.G. Yip Hoi Fai [1996] 2 HKCLR 135. It was a case of the accused paying a monthly sum of $20,000 to a senior police inspector in exchange for the police not to take any action against suspected vice establishments or to provide advance warning of police action against such establishments. A total sentence of 18 months was increased to 36 months on an application to review by the Attorney General.

34. Bearing in mind the nature of the charge and the circumstances in which the offence was committed, the sentence of 3 years imprisonment on A3 is not a day too long. His application for leave to appeal against sentence must be refused.

35. A1 and A2 were both police officers. A2 was the investigating officer in the wounding case. Instead of carrying out their duties properly, they chose to assist suspects to escape justice for monetary rewards. What they did had the result of allowing criminals in a wounding case to go unpunished.What A1 and A2 did is despicable. It is an affront to the rule of law and the administration of justice. It must be deterred.

36. With respect, the judge was fully justified in imposing heavier sentence on A1 and A2.

37. We had been referred to cases in which police officers conspired to accept bribes to cover up criminal activities.

38. A.G. v Lau Shek Man [1987] 3 HKC 67 is a case involving a group of police officers who conspired to accept bribes over a period of 2 years so that vice and gambling establishments would receive prior warning of police raids. On an application for review, this court refused to interfere with a starting point of 4 years on the basis that it was not manifestly inadequate.

39. In R v Lai Kin Keung [1996] 1 HKCLR 153, the appellant, a senior police inspector pleaded guilty to 2 charges of conspiracy to accept bribes and was sentenced to concurrent terms of 5 years imprisonment. The case involved 24 vice establishments and the appellant obtained bribes of at least $600,000 and loans of $700,000. On appeal, the sentence was reduced to 4 years on the basis that not only did the appellant pleaded guilty, he also gave great- and largely successful- assistance in the prosecution of others.

40. In A.G. v Poon Ping-Kwok [1992] 2 HKCLR 231, a Superintendent and a Detective Sergeant were convicted of two charges of doing acts tending and intended to pervert the course of public justice and two sexual offences. The sentences on the perverting charges ranged from 6 months to 12 months to run concurrently with the 2 years on the sexual offences. Convictions in respect of the sexual offences were quashed on appeal and the Attorney General sought to review the sentences on the perverting charges. Sentences of 18 months to 2 years were considered to be appropriate.

41. In R. v Yeung Kwok Fai and another Crim. App. No. 784 of 1980 (unreported), a Senior Police Inspector attached to the Complaints Against Police Officers Unit was convicted of conspiracy to pervert the course of justice and sentenced to 4 1/2 years imprisonment. He was alleged to have persuaded a witness not to attend court to give evidence against 3 police officers in a case of perverting the course of justice. An offer of $30,000 was made coupled with a threat of trouble on the witness's family.

42. It was suggested that the sentences on A1 and A2 were excessive in the light of those cases.

43. In Lau Shek Man (supra), this court refused to increase a starting point of 4 years on that basis that it was not manifestly inadequate. In Lau Kin Keung (supra), a starting point considerably higher than 4 years was in fact considered to be appropriate. Poon Ping-Kwok (supra) is a case of police officers giving misleading statements to avoid prosecution to themselves and those prosecution ultimately turned out to be unsuccessful. The facts in Yeung Kwok-fai (supra) are perhaps comparable. The sentence however, was 4 1/2 years.

44. The sentence of 4 years on A1 and A2, with reference to the sentences in Lau Shek Ma, Lai Kin Keung, Poon Ping-Kwok and Yeung Kwok-fai, is not excessive.

45. We had also been presented with evidence of enormous financial and other difficulties faced by the applicants and their families as a result of the convictions.

46. A1 has been a police officer since 1983 and stands to lose his lump sum and monthly pensions due to him upon normal retirement. Other benefits to his family members will also be forfeited. There is medical evidence suggesting that A1's wife recently had a hip replacement operation and badly needs to be taken care of.

47. A2 had in fact retired in 1998. He suggested that his monthly pension of $9,444 was terminated in November 2001, so were the other benefits to his family members. The respondent disputed the termination of the pension payment. The dispute could be the result of misunderstanding. We do not however consider such matter to be important.

48. Personal circumstances and family difficulties have little to play in sentence for the type of offence in question. When the applicants committed the offence, they must realize the inevitable consequences, financially and otherwise, should they be caught. They have no one, but themselves to blame.

49. We have sympathy for their families. But it is a case of grave abuse of position as police officer. The seriousness of the offence far outweighs any sympathy we may have. In any event, the judge must be aware of the consequences of the conviction on the applicants and must have taken such matters into consideration. After all, such consequences are common features when police officers are convicted of serious offences.

50. Integrity of law enforcement officers is the linchpin of the proper administration of justice and the corner stone of a just and fair society. Law enforcement officers who abuse their positions and conspire to defeat the end of justice must be punished severely or else the confidence of the public cannot be maintained.

51. We are not persuaded that the 4 years sentence on A1 and A2 is either manifestly excessive or wrong in principle.

Conclusion

52. The application for leave to appeal against sentence was devoid of merit and was therefore dismissed.