THE QUEEN v. TONG HIU-MING AND ANOTHER

---------------------

Headnote

---------------------

Offering an advantage - section 8 distinguished from section 4 - immediate custodial sentence proper.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 833 of 1986

________________

BETWEEN

___________________

___________

JUDGMENT

___________

1. The appellants pleaded guilty to offering an advantage, contrary to section 8(1) of the Prevention of Bribery Ordinance, Cap. 201. 1st appellant was sentenced to 6 months imprisonment and 2nd appellant to 3 months.

2. 1st appellant owns a small garage in Shek Kong where trucks are repaired. 2nd appellant is employed there as a mechanic.

3. Mr. Ching Kwok-wah is a vehicle tester at the Kowloon Bay Vehicle Examination Centre, where vehicles from the appellants' garage are tested following repairs.

4. On 25th January this year - shortly before Chinese New Year - 2nd appellant took a lorry to be tested and later offered Mr. Ching a lift home to Tsuen Wan, which he accepted.

5. During the journey 2nd appellant said that 1st appellant wished to treat Mr. Ching to tea, because he was not too strict and would allow the instant rectification of minor faults. 2nd appellant insisted, in the face of Mr. Ching's objections, on driving to Shek Kong there and then to see 1st appellant.

6. On arrival at the garage 1st appellant took out two $1,000 notes and proffered them to Mr. Ching, who refused to accept them. Thereupon 2nd appellant took the money and put it in Mr. Ching's pocket, saying it would not get him into trouble and adding that he could use it to buy food for his children.

7. Mr. Ching was frightened and wished to leave. The appellants drove him to a nearby bus stop, where he caught a bus to Tsuen Wan and later made a report to the police and the ICAC.

8. Both appellants have clear records. They are married with dependent children and are the sole breadwinners in their families. While they were in custody, before their release on bail pending appeal, the garage business came to a halt. It is therefore the sort of case where imprisonment is a very severe penalty.

9. The magistrate indicated that he was sentencing the appellants on the basis that the money was not intended as an inducement for future favours. Though, as he correctly states in his Reasons for Decision:

"Putting the best possible construction on it (from the defendants' view point) they would if they had succeeded placed Chik Kwok Wah (sic) in a position where he may not have been able to carry out his duties, in respect of vehicles brought in for inspection from Dl's garage, in an even handed manner. This is exactly the sort of corruption Section 8 is designed to counteract."

10. As a basis for sentencing he referred to Lai Yuk-kui v. R.⁽¹⁾ The appellant in that case had been convicted under section 4(1)(a) of offering an advantage, namely $2,000, to a Tax Inspector, as an inducement to abstain from performing an act in his capacity as a public servant.

11. The maximum penalty on summary conviction under section 4 is the same as under section 8, namely a fire of $100,000 and 3 years imprisonment. This is in spite of the fact - strongly relied upon by Mr. Rodway for the appellants - that it is not an essential ingredient in section 8 that the advantage should be as an inducement or reward, as it is in section 4.

12. In Lai Yuk-kui the learned Chief Justice reminded magistrates of what he conceived to be the correct approach to sentences for corruption offences. Dealing specifically with section 4 offences, he said:

"Firstly, that where an adult is convicted of an offence against section 4(1) or 4(2) of the Prevention of Bribery Ordinance, an immediate custodial sentence should normally be imposed, whether the offender is a public officer or not. Secondly, alternative methods of dealing with an offender much as a fine, a probation order, or a suspended sentence should be imposed only in exceptional cases where the facts or the circumstances of the offender justify it.

 

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."

 

However, he then went on to say:

"The same principles should apply to a person convicted of an offence against sections 5, 6, 7 and 8 of the Prevention of Bribery Ordinance, though I express no view as to appropriate sentences for offences against section 3 or 9 which involve a far wider range of moral culpability."

13. It would seem that, in the case of section 8 offences, magistrates have not been applying these principles. Mr. Jenkyn-Jones, for the Crown, most helpfully has handed up a summary of completed prosecutions since 1975. This shows that, since Lai Yuk-kui, there have been three convictions under this section. These have resulted in a conditional discharge, a suspended sentence of 4 months imprisonment and a binding over respectively.

14. Since 1975, out of 8 cases in the Magistrate's Court in which convictions resulted, in only one instance has a sentence of immediate imprisonment been imposed.

15. The Prevention of Bribery Ordinance was a measure introduced in an attempt to root out a deep-seated evil in Hong Kong. Drastic steps were needed. It has proved successful. But, in order to deter people from giving money to public servants, whether as a reward or an inducement, immediate sentences of imprisonment are necessary. Nothing else gets the message through to the general public.

16. This inevitably results in hardship and sadness in individual cases, as it has in this case. I am satisfied, nevertheless, that immediate custodial sentences were correct in principle.

17. However, I think that, although the maximum sentences are the same, it is right to draw a distinction between section 4 and section 8. The latter clearly contemplates behaviour of a less objectionable nature, although it is implicit in the appellant's conduct that the money was, at the very least, a reward for past favours.

18. This is the sort of case where the mere fact of going to prison is in itself a severe penalty. Bearing this and the various mitigating factors in mind, I conclude that these sentences were unnecessarily long.

19. I agree with the magistrate that 1st appellant's guilt is the greater and that he should suffer the heavier penalty. The appeal is allowed and the sentences reduced to 2 months in respect of 1st appellant and one month in respect of 2nd appellant.

(1)    C.A. No. 917 of 1981