HKSAR v. CHAN CHONG CHI

HCMA1233/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA1233 OF 1999

(ON APPEAL FROM STCC NO.372 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on his own plea of guilty by the learned magistrate to three counts (being Counts 4, 5 and 6) of offering an advantage to an agent, contrary to section 9(2)(a) and section 12(1) of the Prevention of Bribery Ordinance, Cap.201, and was sentenced by the learned magistrate to three months' imprisonment on each count, all the sentences to be served concurrently. Against this sentence, the appellant now appeals.

The facts

2. In pleading guilty to these three counts, the appellant admitted the facts of the case as follows :

(a) At the material time, the appellant was a plumber and was contracted by the Incorporated Owners of Carado Garden to carry out plumbing maintenance works at Carado Garden, a residential complex in Tai Wai consisting of six blocks of building. Yu Wai Ming and Chak Cheung Kar were respectively the Estate Manager and Assistant Estate Manager at Carado Garden and were responsible for supervising and approving the plumbing works of the appellant.

(b) In respect of Counts 4 and 5, after the appellant had been paid by the Incorporated Owners of Carado Garden, $21,000 and $24,000 respectively on 8 August 1996 for plumbing works done by him at Carado Garden, the appellant paid Yu Wai Ming $2,100 and $2,400 respectively for Yu's assistance in obtaining the plumbing works.

(c) In respect of Count 6, on 28 November 1996, the appellant was paid totally $9,700 by the Incorporated Owners of Carado Garden for repair works carried out by the appellant earlier in the same month. After such payment was made to the appellant, the appellant paid to Chak Cheung Kar $3,500 in return for having assisted in obtaining these repair works for the appellant.

Background

3. The ICAC started investigation into corrupt practices existing between the Estate Managers of the Incorporated Owners of Carado Garden and various contractors engaged by the Incorporated Owners of Carado Garden for maintenance works (of which the appellant was one) in January 1997. One such contractor named Wong Chi Kwong and the Assistant Estate Manager, Chak Cheung Kar, were arrested on 23 January 1997 while the appellant was arrested on 31 January 1997. Under caution, the appellant had admitted the three offences to which he ultimately pleaded guilty in this case. Although initially put on ICAC bail, the appellant's bail was returned to him in May 1997.

4. In the meantime, another Assistant Estate Manager named Chan Kin Sang was arrested in August 1997. Similar charges were brought against Chan Kin Sang. Two of these charges charged Chan Kin Sang with accepting advantages from the appellant in the amounts of $1,000 and $500 respectively. (The appellant was also initially charged with two counts of offering similar amounts to Chan Kin Sang but the prosecution did not proceed with these charges upon the appellant's plea of guilty to Counts 4, 5 and 6). Chan Kin Sang pleaded guilty to the charges that he faced in September 1997 (STC1097/1997) and was sentenced to one month's imprisonment, suspended for 12 months on each count and fined $4,000 totally.

5. Wong Chi Kwong, pleaded not guilty to the charges brought against him, was tried and found guilty in December 1997 in STC1262/1997 and was sentenced in January 1998 to one month's imprisonment, suspended for 12 months on each count and fined $4,000 totally.

6. The appellant was re-arrested together with Chak Cheung Kar in April 1999. Chak pleaded guilty to the charges he faced including the acceptance by him of the $3,500 from the appellant (being the mirror image of Count 6 faced by the appellant to which he later pleaded guilty). Chak was sentenced in May 1999 to four months' imprisonment, suspended for 12 months on each count.

7. The appellant first appeared in court on these counts in April 1999. He pleaded not guilty and trial was set for in November 1999. At the trial, the appellant pleaded guilty to Counts 4, 5 and 6 before the learned magistrate. Counts 1, 2 and 3 were not proceeded with by the prosecution upon the appellant's plea of not guilty to them.

8. In July 2000, namely after this appeal had been lodged by the appellant, the appellant gave evidence at the trial of Yu Wai Ming who was convicted and sentenced to five months' imprisonment solely on the evidence of the appellant. It is accepted that Yu Wai Ming is the main instigator in respect of the corrupt practices which went on between the Estate Managers and the various contractors in relation to Carado Garden.

The appeal against sentence

9. The amended perfected grounds of appeal against sentence list altogether 10 grounds of appeal. However, these 10 grounds of appeal can conveniently be categorized into four headings, namely :

(a) the midnight calls as exceptional circumstances (Grounds 1, 2 and 3);

(b) delay (Ground 4);

(c) disparity of sentence (Grounds 5 to 9); and

(d) that the appellant had given evidence against Yu Wai Ming (Grounds 10 and 10(b)).

I shall deal with each category in turn.

The midnight calls

10. One of the matters put forward to the learned magistrate in mitigation was that the appellant, before he committed these offences, had regularly received midnight calls from the Estate Managers of Carado Garden concerning urgent/emergency repair works. But when he arrived at Carado Garden in the night in answer to these urgent calls, he would be informed that the problem had already been resolved. As such, he was not even able to charge for his visit in the night. It was conceded by defence counsel before the learned magistrate that the appellant is not in a position to say whether these midnight calls were or were not genuine calls to do repair works.

11. The learned magistrate dealt with this aspect of the mitigation in the following way. He took the view that since the appellant was under a contractual duty to be on 24-hours call and since there was no suggestion that these calls were false ones by the Estate Managers to the appellant, if the appellant had any problem in the performance of his contract resulting from these calls, he should have negotiated the matter with the Incorporated Owners. He further took the view that this factor would only be relevant to his consideration of culpability.

12. In my view, the learned magistrate had not appreciated what was being submitted to him by way of mitigation. The suggestion made by the Defence was that irrespective of whether these calls were genuine or not, the Estate Managers were making things difficult for the appellant so as to indirectly induce the appellant to offer to them advantages, probably in the form of "tea-money". Where there are mirror charges of offering and accepting advantages against the two parties to corrupt practices, prima facie, it would seem that the offerer would be the instigator. However, in this case, this part of the mitigation was put forward in an attempt to show that these corrupt offences arose at the instigation of the Estate Managers, thereby reducing the criminality on the part of the appellant. That the learned magistrate did not fully appreciate this could be seen by the fact that he stated that this factor would only be relevant to the consideration of culpability.

Delay

13. There was a delay of some two years from the start of the investigation and after the appellant had first been arrested in bringing these charges against the appellant and bringing him to court. This was an ongoing investigation and different aspects were being investigated by the ICAC. Whilst undoubtedly there was a delay, in the sense that the appellant could have been charged and brought to court earlier, I am, however, not of the view that such a delay would per se constitute exceptional circumstances whereby a suspended sentence would be justified. The learned magistrate did in fact reduce the term of imprisonment by one month as a result of such delay.

Disparity

14. The main ground of appeal is that the learned magistrate had failed to pass a sentence which was consistent with the sentences passed on the other Assistant Estate Managers and contractor in relation to this investigation into Carado Garden. With the exception of Yu Wai Ming, who was given an immediate custodial sentence of five months' imprisonment, all the other persons (apart from this appellant) charged in relation to the ICAC investigation into corrupt practices between Estate Managers and contractors in Carado Garden were given suspended sentences and some with a fine also. This was the case not only in respect of those who had pleaded guilty, but also in the case of the other contractor Wong Chi Kwong who was convicted after trial.

15. In his Reasons for judgment, the learned magistrate dealt with the issue of disparity by relying on the decision in The Queen v. So Hung Lee & Another [1986] HKLR 1049 where it was held that where different sentences were passed on different occasions by different judges on different accused for the same offences, then the only consideration would be whether the sentence passed on the appellant was appropriate. Applying this principle, he took the view that he should not be affected by the sentence passed on the other persons involved in this case.

16. In so doing, the learned magistrate erred in principle in that he had failed to take into consideration another well established principle in sentencing that where a sentence on an appellant is so disparate to the sentence of another participant in the same or related offences, that the appellant may be considered to have a justified sense of grievance, then an appellate court may reduce that sentence even though it is not in itself excessive (see R. v. Potter [1977] CLR 112).

17. In the present case, not one but three other persons charged with similar offences arising out of the same investigation had their prison sentences suspended. To ignore this matter completely is to shut out the reality of the situation. Whilst I have some sympathy for the learned magistrate who must have found himself in a somewhat difficult situation in sentencing in this case due to the fact that there seems to be conflicting principles of law involved. However, not only was it urged upon him by the Defence in mitigation to follow the suspended sentences passed on the other persons involved in this investigation, but even the prosecuting counsel on fiat conceded on no less than four occasions before the learned magistrate that he should be consistent in sentencing.

18. Each one of the mitigation factor on its own may not amount to an exceptional circumstances, but when they are all considered together, namely, the midnight calls, the delay and the disparity point, their cumulative effect ought to be such as to lead the learned magistrate to the obvious conclusion that there was exceptional circumstance present in this case.

19. Lastly, one further point is that in his Reasons for sentence, the learned magistrate stated that he had no information as to why PW1 (i.e. Chak Cheung Kar) was given a non-custodial sentence and, further on, that having taken into account all the factors in this case, he was not convinced that this is an exceptional case to justify a non-custodial sentence. The mitigation put forward by defence counsel in the lower court was geared towards asking for a suspended sentence. The learned magistrate seemed to have equated a suspended sentence as being a non-custodial sentence. If that was so, again, the learned magistrate was wrong, for section 109B of the Criminal Procedure Ordinance makes it abundantly clear that a suspended sentence is a custodial sentence.

Giving evidence against Yu

20. The appellant gave evidence for the prosecution against Yu Wai Ming in July 2000 and it is accepted by the prosecution that it was on the appellant's evidence alone that Yu was convicted. Admittedly, this took place after the appellant had been dealt with by the learned magistrate, and although it is not a matter which the learned magistrate could have taken into account when sentencing. Nevertheless, it is still a matter which this court, in hearing the appeal, can give due consideration to.

Decision

21. For the reasons given above, I am of the view that the learned magistrate has erred sufficiently so as to warrant the sentence of the appellant to be put right on appeal. I shall therefore order the sentence imposed by the learned magistrate of three months' imprisonment on each charge to be served concurrently be suspended for a period of 12 months. To that extent, the appeal will be allowed.