XCHRX R. v. LEUNG KAM HO, GILBERT

IN THE COURT OF APPEAL

1993, No. 286

(Criminal)

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J U D G M E N T

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Litton, J.A.:

1. This is a fresh application for bail pending appeal brought under Section 83R of the Criminal Procedure Ordinance. I had first dealt with the matter in June last year and dismissed the application. At that time the application was brought on the basis that, on the preliminary grounds of appeal filed, the applicant had a high chance of success on the appeal. The application was dismissed because I was not satisfied on the material before me, and on a first impression of that material, that the appeal on those grounds was likely to succeed. There is now a change in circumstances. The present application is based solely on one matter, namely, that the applicant's appeal against sentence is likely to succeed. It turns on counts one and five of the indictment, for which he was sentenced to three years' imprisonment. Those counts were brought under s4 of the Prevention of Bribery Ordinance where the maximum term of imprisonment is seven years.

2. The point is put in this way in the applicant's affidavit, paragraph 10, as follows:

"The basis of my appeal against sentence is that the status of the person bribed (a public servant), which is an ingredient of the bribery offence under Prevention of Bribery Ordinance, should not render an offender liable to a significantly heavier punishment where the legislature has fixed a more modest penalty (maximum 1 year's imprisonment and a fine of $10,000) for persons who commit bribery at Legislative Council elections, including elections to that body from the Regional Council constituency. It may well be that if my appeal against sentence succeeds under this head then I will have served all of the term of any adjusted sentence of imprisonment".

3. As things stand today the applicant has served about eight months of the sentence of three years and by the time this appeal is disposed of in May this year he would probably have served nearly a year of that sentence; and if the judge had erred in principle and the three years' sentence is too harsh then it would follow that by the time the appeal on sentence is heard, he would have served most if not all of the proper sentence on counts one and five. The question therefore boils down to a simple point. Does it appear on a prima facie basis that the appeal on sentence is likely to succeed?

4. Mr. Griffiths who appears for the applicant relies upon what the judge said after he had concluded his sentencing process. The judge said this:

"Before departing from this case I wish to draw the attention of those responsible for the revision of the Laws of Hong Kong to an anomaly which this case has highlighted. Part Two of the Corrupt and Illegal Practices Ordinance deals with bribery at elections. The maximum sentence of imprisonment which can be imposed for conduct which that part declares illegal is one year's imprisonment. Section 4 of the Prevention of Bribery Ordinance deals with the bribery of a public servant. The maximum sentence of imprisonment which can be imposed for conduct which that section declares illegal is 7 years' imprisonment.

Two of the persons whom the defendant tried to bribe in this case were public servants, because members of the Regional Council are in law public servants. But the defendant did not bribe them because they were public servants: he bribed them because they were electors. Even though I have ruled that in exercising their votes they were in law acting in their capacity as public servants, the anomaly is that the defendant has found himself liable to a maximum terms of 7 years' imprisonment simply because the people he tried to bribe were public servants whereas one of the facts which most people would think makes this case so serious is the fact that this was bribery at an election".

5. The point put forward on the applicant's behalf is simply this: although the Judge identified the "anomaly" he failed to have regard to it in his sentence of three years' imprisonment. I do not wish to say more at this stage about the point except to make this observation. The limit on sentence under s4 of the Prevention of Bribery is one imposed by law. It cannot be right that the judge must as a matter of law have regard to a different limit in a different statute simply because, on the same indictment, the applicant was also charged under the other statute, the Corrupt and Illegal Practices Ordinance, where the maximum is one year's imprisonment. It seems to me that the judge did in fact have regard to the disparity in imposing the sentences he did; and he highlighted this factor as an anomaly. I am not therefore persuaded that this ground of appeal is likely to succeed. It must follow that the application be dismissed.