HKSAR v. LO TECK-ANN, WILLIAM

DCCC27/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 27 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to a charge of offering an advantage to an agent, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance.

2.  The particulars of the offence are that between November and December of 2008 until 31 May 2009 in Hong Kong you offered an advantage, namely a reward of between $20,000 to $22,000 per month to an agent, a Mr Ma Hung-chiu, who was then the General Manager of the Customer Services Division of Asia Airfreight Terminal Company Limited as an inducement or reward or otherwise on account on the said Ma Hung-chiu doing or having done an act in relation to his principal’s affairs of business, namely remaining in the employment of Asia Airfreight Terminal and not leaving that company to join a company called Silver Express International Limited so the defendant might have a greater chance to succeed in bidding for the business of Asia Airfreight Terminal Company Limited when the contract between Silver Express International and Asia Airfreight Company Limited expired in June of 2010.

3.  The summary of facts which you admitted states that under the franchise awarded by the Airport Authority of Hong Kong, Asia Airfreight Terminal Company Limited, AAT, operated an air cargo terminal based at the Hong Kong International Airport to provide cargo handling services for various airlines. At all material times Silver Express International, SEI, had the principal cargo handling services contractor of AAT. On average AAT paid a monthly service charge of over $2 million. Ma Hung‑chiu was the General Manager of AAT in the Customer Services Division. His duties included the business negotiation and supervision on the performance of AAT’s contractors including SEI whose general manager was D2 until he left SEI on 1 July 2008. It was part of D2’s duties to deal on behalf of SEI with AAT.

4.  The latest cargo handling services contract between AAT and SEI was due to expire in June 2010. I have now been shown the contract which indicates there was an option to renew but that lay with AAT and not with SEI. Customarily a few months before the expiry of such a contract AAT’s management would hold a meeting to discuss matters relating to the renewal of the contract with SEI. During these meetings Mr Ma had the role of specifying the terms of the new contract commenting on the performance of SEI. He would also have the responsibility of negotiating the terms of the new contract.

5.  After D2 had left SEI, Ma received an offer to take up the vacancy at SEI. This defendant and his associates were at the time contemplating bidding for the services contract from AAT when that with SEI would expire. According to the defendant’s explanation under caution, Mr Ma then approached him and intimated that he was not interested in the offer from SEI but that he was tempted by the higher pay being offered and as his daughter’s new clinic business was suffering a loss he might consider accepting the offer and work from SEI. The 2nd defendant, this defendant, became concerned that should Ma with his vast experience and connection in the field of business join SEI that would seriously undermine the success of his intended bid for the services contract. The defendant and his associates began to pay Ma a monthly sum of between 20,000 to 22,000 per month so that he would not leave AAT to join SEI. They also offered to employ Ma after his retirement from AAT in about a year’s time. The payments lasted for six months before the defendant was arrested. The defendant further explained that payments were not intended to influence Ma into assisting them in their bid for the contract, the sole purpose was to keep Ma from joining SEI thus harming their intended bid.

6.  The total advantages offered to Ma between November of 2008 and May of 2009 was about $120,000 to $132,000. AAT prohibited its employees from soliciting or accepting advantages from persons in relation to the affairs of business of AAT.

7.  The defendant was arrested on 26 June 2009. The ICAC also seized $13,000 from his home. The $13,000 was part of the $22,000 that was offered to Ma for payment in June 2009. However, the 2nd defendant, this defendant, was arrested before that payment was made.

8.  In mitigation I was told that the defendant has a clear record and that he is a National of Singapore. He has been in Hong Kong for 10 years but all his family have remained in Singapore. I am told that he is aged 53 years of age, he was born in Singapore and educated to A’ Level standard. He began his working career at the age of 21 and he has been working for more than 30 years. He is described as being industrious, diligent and law-abiding. He reached the position he has because of that diligence and because of his industry. He was married in 1989 to his present wife who works as a nurse at a Government hospital in Singapore. He has a son who is aged 17 who is at school and he has an elder daughter who is aged 20 and she had commenced a two year degree in Western Australia and the family are having to bear the expense of paying for that education. I am told that the defendant has an elderly mother, she is 82, that she’s wheelchair-bound, suffers from diabetes and she has had a stroke and needs assistance with her breathing. I am told that it was only recently that the mother found out about the defendant being arrested and the trouble he was in in Hong Kong and this has affected her adversely and the defendant is very worried about the effect this will have on his mother.

9.  I have been given a number of letters from friends, family and work colleagues and it is quite clear that the defendant is regarded as being a very supportive colleague and a very devoted family man. He is particularly noted for his generosity in helping out colleagues in times of adversity both financially and by giving them support. He has obviously been a major contributor to his family’s finances and since his arrest he has been unable to work and so this has had a significant effect on those finances and he has had to live on his savings. One area of mitigation that I think is a genuine area of mitigation and distinguishes his position from the position of D1 is that since his arrest some 7½ months ago, the defendant has had to remain in Hong Kong. He has been allowed one visit to Singapore in that time but he had to remain in Hong Kong and obviously with his position of being on bail for this offence he has been unable to find work. Normally if a person was kept in custody of course that would count towards his sentence. That has not been the position with this defendant yet he has had to remain here without family support and I take that as a genuine feature of the mitigation that has been placed before me.

10.  I have considered very carefully all the testimonial letters that have been placed before me and many of the family members and friends of the defendant from Singapore have come to court to support him. His wife was here on the last occasion as was his brother who made a very moving plea for leniency on behalf of the defendant.

11.  As I said when dealing with the co-accused in this case, corruption cases strike at the heart of business probity. Private sector corruption is no less serious than public sector corruption and the law requires that an immediate custodial sentence should be imposed on adult offenders. With regards to the co-accused in this case, I took a starting point of 9 months’ imprisonment and I reduced that by one-third to reflect the defendant’s guilty plea and imposed a sentence of 6 months’ imprisonment. A number of factors have been urged upon me by defence counsel who has given a very full plea in mitigation in this case. Not only has the fact that his family will suffer greatly because of this conviction and because of the inevitable prison sentence that will be imposed but there are other features which do not affect the co-accused, one of those being that the defendant is a foreigner and he will be sentenced to a term of imprisonment in a Hong Kong prison away from his family and away from family support. The other matter that has been urged upon me is that the instigator of this offence was the co-accused and not this defendant and that does not seem to be challenged.

12.  I have considered those factors and I have also considered the factor I mentioned earlier that the defendant was on bail for 7½ months and effectively left to his own devices in Hong Kong without the support of his family being unable to join his family at a time when he would have been under great personal stress and I think that is a factor which does differentiate this case from that of the co-accused.

13.  I take the same starting point for this defendant of 9 months and I reduce that by one-third to 6 months. However, having taken into account the factors I have mentioned, what I am prepared to do is to reduce that sentence by 1 month and reduce the sentence to one of 5 months’ imprisonment and that is the sentence I impose. You will go to prison for 5 months for this offence.