HKSAR v. FENG CHUN HAN

HCMA1049/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1049 OF 2001

(ON APPEAL FROM WSC 5679 OF 2001)

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

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

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

J U D G M E N T

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

1. Feng Chun Han, who was the 1st defendant in the court below, was charged with four offences under section 9(2)(b) of the Prevention of Bribery Ordinance, Cap.201. He pleaded guilty to three of them.

2. There was another person, Leung Kam Yin, the 2nd defendant, who was also charged with four offences under the same section of the Prevention of Bribery Ordinance to which he pleaded guilty to all of them. He was dealt with first, I believe, before Mr Jenkins who, after hearing mitigation, called for a Community Service Order Report and, having read that report, imposed a Community Service Order against the 2nd defendant.

3. In the meantime, after the 2nd defendant was sentenced to a Community Service Order, the 1st defendant, the appellant, probably on legal advice, pleaded guilty to three charges of the four charges which he faced. I believe, by then, the respondent applied for a review of the sentence of the 2nd defendant, Leung Kam Yin. After hearing arguments, the magistrate set aside the Community Service Order and replaced it with a sentence of three-month' imprisonment to take immediate effect. The appellant when he first appeared in court and when he pleaded guilty was before different magistrates. In view of the fact that Mr Jenkins had dealt with the matter and probably for the sake of consistency, he transferred the case to Mr Jenkins for sentencing, the appellant having pleaded guilty to three charges.

4. The facts are very simple. Both the appellant and the 2nd defendant were employees of a German Company called the Toepfer International Asia PTE Limited. In fact, the 2nd defendant held a more senior position to the appellant. The appellant, however, was in charge of a fund for the purpose of entertainment and some other purposes in connection with the business.

5. On the three occasions, as particularized in the charges, the 2nd defendant asked the appellant for loans totalling some $55,000 : the first occasion $20,000; the second occasion $20,000; and the third occasion $15,000. This was money which came from the entertainment fund which was under the control of the appellant. It is not in dispute that the money was lent to the 2nd defendant by the appellant without the permission of the company whose head office was in Germany and hence, the offences under section 9 were committed.

6. If one looks at the section, the most essential element of the offence is lack of consent or approval from the employer. In the case of civil servants from the Chief Executive or someone who has authority to give approval or consent. It has been urged and urged very strongly on me by Mr Cheng Huan, SC, who appeared for the appellant, that firstly this was in fact an exceptional case and secondly, the charges were technical offences and thirdly having been informed that the 2nd defendant was sentenced to a Community Service Order, there was a legitimate expectation that he would be treated in the same manner. But as it turned out, he was not treated in the same manner, because by then, the first sentence imposed by Mr Jenkins on the 2nd defendant was replaced by an immediate prison sentence of three months after a successful application for review by the respondent.

7. As to the argument of legitimate expectation I have searched through textbooks and cases and failed to find reasonable expectation to have been considered as a mitigating factor. Each case must depend on its peculiar circumstances.

8. The other two matters which are worth mentioning are exceptional circumstances and that the offences were technical ones. I am unable to agree with Senior Counsel that there were exceptional circumstances in this case or that the offences were technical. As I have already mentioned that the section creating the offence clearly had in mind the consent or approval of the employer or in the case of civil servants, the Chief Executive or any head of department who has the authority to give consent or approval. That is the gravaman of the offence. It is not disputed there has been no consent or approval from the head office in Germany. If there had been consent or approval, no offence would have been committed. The section clearly had that in mind. So the offences were not technical offences. They were real and substantial offences which are prohibited by the section. There could not be any exceptional circumstances because from the summary of facts that even after more than a year the loan had not yet been repaid not a word mentioned by the appellant to the 2nd defendant that he should repay the loan. There was sufficient evidence to infer that it was a favour to his superior to improve the relationship between a subordinate and his superior. Mr Tso was right when he pointed out this was a clear case of corruption and bribery.

9. In his submission Mr Tso referred me to a number of decisions by this court and also by the Court of Appeal. Suffice to say all the cases pointed to the fact that an immediate prison sentence is the norm rather than an exception for offences under the Prevention of Bribery Ordinance. Corruption whether in public service or in private sector is a cancer which can destroy the society. It is a contiguous disease which strikes at the heart of the community. A sentence of immediate custodial sentence except in the most exceptional cases is inevitable.

10. I was reminded of the judgment in Secretary for Justice v. Kwan Chi Cheong and others, CAAR 1/1999, p.6, where the Court said :

" The Prevention of Bribery Ordinance provides the sanctions necessary to deal with breaches of this kind. The Ordinance was intended to be draconian in its effect. Bribery, whether in its acceptance or by the offering of an advantage, is an evil which can strike at the heart of commercial and public life if it is left unchecked. A punishment that fails to deter will produce all the wrong signals just as sentences which act as a deterrent will reinforce this community's efforts to rid itself of corruption.

For these reasons, even the first offender charged with an offence of corruption under the Ordinance, unless it is merely a technical breach, must usually expect a deterrent sentence. This will almost invariably involve a sentence of immediate imprisonment."

The Court continues to say at p.7 :

" ..... In cases of corruption, where an advantage is offered or accepted, it is difficult to envisage a situation where public interest does not require deterrence to predominate. The personal circumstances of the offender will carry less weight. ..."

11. In the course of argument, Mr Cheng Huan, SC also referred to the personal circumstances of the appellant. He has an aged mother, who is 80 in the Mainland, is apparently or has not been in good health. That in my view does not operate as a strong humanitarian consideration for the court to reduce the sentence.

12. Finally, it comes to the question of disparity. The 2nd defendant was sentenced to three months' imprisonment and that was after the Order for Community Service was set aside. And in this case the appellant was sentenced to four months' imprisonment, I think in the reasons given by the magistrate, it is clear that the reason for the difference was because the 2nd defendant pleaded guilty in the very first opportunity while the appellant had to wait and see before he pleaded guilty. This is why there was this difference between three months and four months. Also it is a well-established legal principle that disparity in sentences is not in itself a good ground of appeal. The test is whether the sentence is wrong in principle which in my view this case is not and whether the sentence imposed in this case is manifestly excessive and again the answer is "No". It should always be borne in mind that this type of offence calls for a general deterrence to deter people from committing these offences because people or employees who are in charge or in control of large sums of money could easily abuse their positions. At the end of the day, any loss suffered by companies will eventually have to pass on to the consumers. It is the public who bear the consequence.

13. For these reasons, I see no reason to interfere with the sentence imposed by the magistrate and the appeal is dismissed.