HKSAR v. NG SHIP PING

CACC364/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.364 OF 2004

(ON APPEAL FROM DCCC 715 OF 2004)

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J U D G M E N T

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Hon Lunn J (giving the judgment of the Court) :

1. The applicant applies for leave to appeal against a total sentence of two years and two months’ imprisonment imposed upon him by Deputy Judge Mackintosh in the District Court on 5 August 2004 on the applicant’s pleas of guilty on arraignment to 25 charges of accepting an advantage as an agent, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap.201.  In addition, the judge ordered the applicant to pay his employer $883,038.84, the amount of the advantages he had received.  We have been told today in court that the applicant has not complied with that order, but that a judgment order has issued.

BACKGROUND

2. The applicant was arrested on 8 August 2003 and detained in custody in Australia until his extradition to Hong Kong on 10 June 2004.  The applicant and his family emigrated to Australia in 1986, but the applicant had returned to continue working in Hong Kong thereafter.  The length of his detention in Australia and the delay in his extradition to Hong Kong was, so the District Court was told, due to his medical condition only, he being extradited as soon as the doctors certified that he was fit to travel.

THE CHARGES

3. All twenty-five charges were particularised in the same format, subject to variations as to date, the amount and payer of the advantage.  The charges averred that the applicant :

“... being an agent, namely an employee of Custom Accessories Asia Limited, on or about the 1^st day of February 1997, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely a gift, loan, the, reward or commission consisting of $132,841.50 from LUI Shung-wai, as an inducement to or reward for or otherwise on account of the said NG Ship-ping doing or having done an act in relation to his principal’s affairs or business, namely placing orders of the said Custom Accessories Asia Limited with the said LUI Shung-wai.”

4. By the Summary of Facts accepted by the applicant as the basis upon which his pleas of guilty were tendered and accepted, the applicant accepted that throughout the period encompassed by the charges, February 1997 to May 2000, he was the General Manager of Custom Accessories Asia Limited.  The company was based in the United States of America and sold car parts and accessories.  The applicant was responsible on behalf of his employer for placing orders and negotiating the price of goods with three local suppliers.  They were Yuk Fat Company Limited (“Yuk Fat”), Hung Wai Printing Factory Limited (“Hung Wai”) and Chiap Shing Manufactory Limited (“Chaip Shing”).  All three companies sold goods to the applicant’s employers.  The applicant approached various directors of the three companies and solicited advantages as a reward for placing purchasing orders on behalf of his employer with the respective companies.  Those directors agreed to his request and embarked upon a pattern of payment of monies to the applicant based on a formula related to the value of the orders placed with the respective companies.

CHARGES 1 TO 11

5. On the eleven occasions the subject of charges 1 to 11, the applicant solicited payments from Lui Shung Wai, a director of Yuk Fat, in respect of purchase orders made by Custom Accessories Asia Limited.  Mr Lui made payments to the applicant on cheques drawn on the account of Yuk Fat.  The eleven such payments made from 1 February 1997 to 4 May 2000 were to a total of $637,949.80.  The amount of monies due from the applicant’s employer in respect of the purchase orders were inflated in order to provide all the monies paid to the applicant without cost to the supplier.  On the occasion of the last payment, the applicant was arrested.

CHARGES 12 TO 22

6. On the eleven occasions the subject of charges 12 to 22, the applicant solicited and received payments from Mr Wong Kim Ming, a director of Hung Wai, in respect of purchase orders he placed on behalf of his employer, Custom Accessories Asia Limited.  In the period 14 October 1997 to 16 November 1999, Mr Wong made eleven such payments in cash to a total of $250,824.00.

CHARGES 23 TO 25

7. On the three occasions the subject of charges 23 to 25, the applicant solicited and received payments from Mr Chan Kam Hung and Madame Cheung Yuk Ling, directors of Chaip Shing, in respect of purchase orders he placed on behalf of his employer, Custom Accessories Asia Limited.  In the period 1 August 1997 to 5 December 1998, the applicant received a total of $51,603.84.

REASONS FOR SENTENCE

8. Turning then to the judge’s reasons for sentence, he noted that the offences covered a period of a little over three years and had resulted in payments being received by the applicant to a total of $883,000.00, the applicant having received but not banked the cheque in respect of charge 11 at the time of his arrest.  Of the gravity of the offences, the judge said :

“… (it) is an evil which can strike at the heart of commercial and public life if it is left unchecked.”

He enumerated the following matters that he took into account in determining the seriousness of the applicant’s conduct :

(i) the applicant instigated the corrupt behaviour;

(ii) the applicant was taking advantage of the buying power of his employer and putting their suppliers under pressure to agree to his suggestions;

(iii) the applicant’s conduct was in gross breach of trust towards his employer and resulted in the latter paying inflated prices for goods; and

(iv) the direct personal gain was very substantial.

9. Of the matters the judge stated that he took into account in favour of the applicant, he referred to the following :

(i) the applicant’s clear record;

(ii) that the applicant was a man of senior years who had led a hard-working and responsible life as a family man;

(iii) that not only had the applicant pleaded guilty but also he expressed remorse and a feeling of shame for the disgrace he had brought upon himself and his family; and

(iv) the time that the applicant had spent in custody in Australia after arrest and prior to extradition to Hong Kong.

10. The judge stated that he accepted that the delay in the extradition of the applicant from Australia following his arrest, a delay of 10 months and 2 days, was not the result of any resistance to the application by the applicant but solely due to his ill health.  However, he stated that he did not take that continuing ill health into account in fixing the appropriate sentence to impose, that being a matter for the Executive to consider.

OVERALL SENTENCE

11. The judge took an overall sentence of four and a half years’ imprisonment as appropriate before reduction by way of discounts, taking a starting point of three years’ imprisonment in respect of each of the 25 charges.

DISCOUNT

12. To reflect the pleas of guilty, he discounted those sentences by one-third.  Further, to reflect the time the applicant had been detained in custody in Australia prior to extradition, he reduced the sentences imposed in respect of charges 1 to 11 by 10 months’ imprisonment on each charge.

SENTENCE

13. In respect of charges 1 to 11, the judge sentenced the applicant to 14 months’ imprisonment on each charge, to be served concurrently one with the others.  On charges 12 to 22, the applicant was sentenced to two years’ imprisonment on each charge, to be served concurrently one with the others, but with six months of those sentences to be served consecutively with the sentences imposed in respect of charges 1 to 11.  On charges 23 to 25, the applicant was sentenced to two years’ imprisonment on each charge, to be served concurrently one with the others, but with six months’ imprisonment of those sentences to be served consecutively to the other terms of imprisonment.  The total sentence of imprisonment thereby imposed was two years and two months.  Finally, the applicant was ordered to pay $883,038.84 to Custom Accessories Asia Limited.

GROUNDS OF APPEAL

14. Turning to the grounds of appeal advanced on behalf of the applicant, Mr Richard Wong advances three grounds of appeal in support of his application for leave to appeal against sentence.

Ground 1

15. By ground 1, it is submitted that the judge failed to take sufficient consideration of the fact that following his conviction and termination of his employment, the applicant had lost his right to his statutory “Long Service” payment due from his employer.

Ground 2

16. By ground 2, it was submitted that in discounting the sentence by 10 months only, in respect of the detention of the applicant in Australia pending extradition, the judge failed to take sufficient consideration of the possibility that, had that period of detention been served as a term of imprisonment in Hong Kong, the applicant might have benefited under the Prison Rules by a further remission of sentence for good behaviour.  This ground of appeal has been abandoned by Mr Wong at the end of oral argument.

Ground 3

17. By ground 3, it is submitted that in light of all the circumstances, in particular, the applicant’s pleas of guilty, his clear record, age and ill health, the sentence of two years and two months’ imprisonment is manifestly excessive.

18. In support of his submissions in respect of ground 1, Mr Wong has referred to two judgments of differently constituted divisions of this court : R. v. Leung Tek Lei,CACC53/1995 (unreported); HKSAR v. Lee Yau Tak,CACC427/1998 (unreported) and to a judgment in which Stuart-Moore VP delivered the judgment of this court, Secretary for Justice v. Shum Kwok Sher (Application for Review No. 1 of 2001) [2001] HKLRD 386.  In the first two cases, the applicants were serving police officers whom had committed the offences of handling stolen goods and aiding and abetting the making of false representations to immigration officers respectively.  In allowing their appeals against the sentences imposed upon them, this court had regard, in part, to the fact of the loss of their pensions.  In Shum Kwok Sher, an application for review of sentence in which the trial judge had taken into account as a factor of mitigation the prospective loss of the respondent’s pension and his fall from grace, Stuart-Moore VP said in the judgment of the court at page 397A-B :

“Accordingly, in our view, the judge was right to have taken these factors into account, provided they were not given too much weight.  The respondent knew what he was doing and for many years he took a calculated risk that he would not be found out, which, in the end, did not pay off.”

In that case the respondent was a senior public servant of 30 years standing convicted after trial of four charges of misconduct in public office.

19. In support of ground 2, now abandoned but for reasons which will become apparent later I will deal with, Mr Wong has referred to the judgment of this court in the HKSAR v. Lam Pak Lok [1997] 3 HKC 650.  In that case, the applicant had fled to the Mainland after committing two robberies in Hong Kong.  There, he was detained in custody for 18 months prior to his return to Hong Kong.  In imposing sentence, the trial judge gave him a discount of one year from the starting point taken for the sentence to take into account the time he had spent in custody in the Mainland, after which he discounted sentence by one-third to reflect the applicant’s pleas of guilty.  Of the submissions made on behalf of that applicant, that the trial judge had failed to take into account the potential for remission under the Prison Rules, Keith J, in the judgment of the court, said at page 653F :

“Nor do we think that the judge erred in failing to take account of the potentiality for remission under the Prison Rules had the time spent in custody in China been spent in Hong Kong.  The fact of the matter is that having fled from Hong Kong, the Applicant should not be entitled to such benefits as he could have got if he had served his sentence in Hong Kong.”

20. Mr Wong submits that the judge had found that the applicant did not flee Hong Kong and that the applicant was not responsible for the period of delay following his arrest in Australia until his return to Hong Kong.  In consequence, he submits that the judge ought to have taken into account the potential remission available to the applicant had he spent that time in custody in Hong Kong in connection with these offences.

THE SUBMISSIONS OF THE RESPONDENT

21. In response to the submissions made in support of ground 1, Mr Zervos, SC, submits that little weight, if any, should have been given by the trial judge or should be given by this court to the applicant of his “long service” payment.  He submits that regard is to be had to the fact that the applicant had committed a serious breach of trust over a period of three years in which he had worked actively against the interests of his employer.  The applicant must be taken to have been aware that in embarking upon that course of conduct, entering into corrupt dealings with his employer’s suppliers and cheating his employer, he was putting his employment and benefits at risk.

22. Of the submissions that were made, but that are now abandoned, in respect of ground 2 Mr Zervos submits that the judge had a discretion in  respect of the regard, if any, to be taken of the period in which the applicant was in custody in Australia prior to his extradition to Hong Kong.  He invites this court to note that the matter was canvassed by the judge with counsel then appearing for the applicant, the latter agreeing with the suggestion of the court that the relevant period was simply that in which the applicant had been kept in custody in Australia.  The issue of potential remission under the Prison Rules, had the period of detention been one served in Hong Kong, was not canvassed with the judge.

23. Mr Zervos submits that having regard to the number of offences, the period over which they were committed, the substantial rewards to the applicant, the fact that he instigated them and the gross breach of trust they represented, the sentences imposed were warranted and are not manifestly excessive.

CONCLUSION

24. Clearly, the judge had a discretion as to whether or not he took into account as a mitigating factor the loss of the applicant’s right to a “long service” payment.  Although the judge has not articulated his reasons for not taking into account this factor in mitigation of sentence, we are satisfied that there exist obvious, substantial grounds for disregarding it as a factor of mitigation.  As Mr Zervos has pointed out, the applicant’s conduct over a period of three years and was a gross breach of the trust reposed in him by his employer, in that not only did he deal corruptly with their suppliers but also he did so in a way which disadvantaged them, and that they had to pay more for the goods so supplied.  It is hardly surprising that his employment was terminated and it is right and proper that he is not entitled to a “long service” payment.  Equally, we are satisfied that it cannot be prayed-in-aid as a mitigating factor.

25. Of the initial submissions, now abandoned, made on behalf of the applicant in respect of ground 2, it has already been noted that they were not advanced to the judge.  In the exercise of his discretion, the judge afforded the applicant a discount in respect of the whole of the time that he had spent in custody in Australia.  After his arrest on 4 May 2000, the applicant was released whilst further inquiries were made.  During that period, the applicant went to live in Australia.  It was there that he was arrested on 8 August 2003.  Given that the applicant had been caught “red-handed” receiving the advantage of the subject of charge 11, in consequence of which he had been arrested and albeit released without bail, we are satisfied that in leaving Hong Kong and going to live in Australia, the applicant knew that he was “running away” and making it difficult for ICAC to proceed against him.  Indeed, that proved to be the case.  From what this court has learnt today from Mr Zervos, which Mr Wong now accepts, the applicant not only let the extradition proceedings run their course but also made representation to the Minister seeking to avoid being returned by the Australian authorities to Hong Kong.  It follows that the judge was misled in the District Court, as a result of which the applicant benefited by having the whole of his time in custody in Australia discounted.

26. We are satisfied that the judge took into account and made the appropriate discounts in sentence in respect of the applicant’s pleas of guilty and absence of other criminal convictions.  Furthermore, we are satisfied that he was entitled to disregard the medical evidence advanced by way of mitigation and to state that he did so on the basis that was a matter for the Executive, if appropriate.

27. Accordingly, in the result we are satisfied that there is no merit in any of the grounds of appeal advanced by Mr Wong in support of his application for leave to appeal against sentence, which application we dismiss.