ATTORNEY GENERAL v. YIP HOI FAI

IN THE COURT OF APPEAL

Application for Review
No. 20 of 1995

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

H E A D N O T E

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

Attorney General's application for review of sentence Offering an advantage contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap.201

Guideline for the District Court - three years' imprisonment suggested for very serious corruption which went on over a long period

IN THE COURT OF APPEAL

Application for Review
No. 20 of 1995

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

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

J U D G M E N T

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

Hon Yang, C.J.:

1. This is the Attorney General's application for review of sentence.

2. The respondent Yip Hoi Fai (hereinafter referred to as "Yip") was convicted after trial before H H Judge Wesley Wong of 14 charges of offering an advantage, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap.201. He was sentenced to 18 months' imprisonment on each count, the sentences to run concurrently.

3. The particulars of the 14 charges are that between July 1993 and August 1994, Yip paid Senior Inspector of Police Lai Kin Keung (hereinafter referred to as "Sn Insp Lai") HK$20,000 a month in exchange for not taking police action against suspected vice establishments or the provision of advance warning of police action against such establishments. The total payments in the 14 months totalled $280,000. Offer for payments were made on the initiative of Yip. After discussion with the police, Yip suggested a figure of $20,000 per month and it was agreed.

4. Sn Insp Lai was stationed in the Mongkok area until sometime in April 1994, when he was transferred to Yaumati.

5. During this period Sn Insp Lai gave advance warning of police raids on three occasions and supplied Yip with the identity card numbers of undercover police agents (generally called "snakes"). Before his transfer to Yaumati Station he told Yip of his transfer and said he could thereafter only give information as to the number and identity of police officers posed as "snakes". Sn Insp Lai suggested collecting half the monthly amount but Yip said it was not necessary.

6. Yip on two occasions asked Sn Insp Lai to take action against his competitors, one in Shanghai Street and the other in Portland Street. The Inspector promised but did nothing.

7. At all material times, Yip was the operator or otherwise closely involved with the running of five massage establishments in Portland Street, Shanghai Street and Argyle Street.

8. The learned judge made five points in his Reasons for Sentence. He noted that these offences could have dire consequences for society. He then observed that this was a continuous monthly payment, and therefore a continuing offence which called for concurrent sentences. Third, he took into account the fact that Sn Insp Lai was already a very corrupt officer: "It was not because of his offer which made Lai a corrupt officer." Fourthly, the judge said that the disruption to the society was limited to a particular sector of the community and only restricted to the Mongkok area. "Only a very small portion of the society was affected and inconvenienced," he stated. Lastly, he said he followed Lai Yuk Kui v. R. [1981] HKLR 691 which held that the usual term of imprisonment should be 12 months' imprisonment. He said that he had looked at sentences imposed previously and they were between two years' imprisonment and a suspended sentence.

9. Finally, the judge concluded that having regard to Lai Yuk Kui v. R., concurrent terms of imprisonment of 18 months for each charge was adequate.

10. It must be stressed that Yip's course of conduct over a 14 month period involved the actual frustration of police activities against vice establishments operated by him.

11. InThe Attorney General v. Chan Kin Keung, Application for Review No.2 of 1996, this Court dealt with a case where Chan Kin Keung offered to pay bribes to Sn Insp Lai Kin Keung. There Chan Kin Keung pleaded guilty and it was the senior police officers who approached the offeror and demanded bribes. In adopting a starting point of 36 months' imprisonment, the Court said:

"In our view, having regard to the authorities, a starting point of 36 months' imprisonment after trial is appropriate. For the plea of guilty, the respondent is entitled to be given the usual one-third discount. In respect of the particular circumstances of this case, namely that it was the senior police officers who demanded money from the respondent in a situation where the respondent, being an ordinary citizen, would feel some hesitation in reporting the matter to the authority, and taking into account that this is a Review, we would give a discount of another 12 months.

12. Clearly in very serious cases such as this a deterrent sentence is called for: vide R. v. Chan Koon Kwok, Arthur [1990] 2 HKLR 458, 460.

13. With respect to the sentencing judge, his understanding of R. v. Lai Yuk Kui (supra) is erroneous. There, Roberts CJ said (at p.694):

"From these cases, I consider that the following guidelines for magistrates can be derived -

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 such 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."

14. The minimum of 12 months is thus for cases in the magistrates' courts only. The present case was heard in the District Court. In view of the large amounts of bribes Yip had paid to Sn Insp Lai, very different considerations arise.

15. The judge's statement that previous sentences ranged from two years' imprisonment to a suspended sentence appears inconsistent with The Queen v. Chan Kwok Hing (1994) Crim. App. No. 103 where, on an application for leave to appeal against a District Court sentence, this Court held (at p.7) that the approach of magistrates should be on the basis that 12 months is the usual minimum imprisonment for section 4 offence. For a case of very serious corruption which went on over a long period, three years would be appropriate.

16. Giving the judgment of the Court in that case, Nazareth JA said (at p.7):

"We do not consider that the climate in Hong Kong as regards the seriousness of corruption has changed since 1981 so that the principles set out in Lai Yuk-kui should be changed."

17. In The Queen v. Chan Kin Keung (supra), the Court was concerned with Chan, an operator of a number of vice establishments, who over a period of 14 months, paid the same Sn Insp Lai and his syndicate $180,000 upon the corrupt police officer's demand . Chan pleaded guilty to one charge under section 4(1)(a). His application for leave to appeal against a sentence of nine months' imprisonment imposed by the District Court was refused. There no guideline on the proper level of sentence in the District Court was given.

18. In our judgment, the District Court should follow the guideline in Chan Kwok Hing (supra) for very serious corruption which went on over a long period.

19. The present case is indisputably such a very serious corruption.

20. The judge's third point that the corrupt practice was confined to a small area, i.e. that of Mongkok, does not bear examination. All corruption strikes at the very foundations of any civilized society and damages the public interest of the whole community.

21. The judge also erred in having overlooked the principle that when dealing with a multiplicity of offences it was incumbent upon the sentencing judge to impose enhanced albeit concurrent sentences. That principle is clearly explained by this Court in The Queen v. Kwok Chi Keung [1993] 2 HKLR 294, at 297 (per Macdougall VP):

"This court also stated in R v TONG Hoi-fung [1988] 1 HKLR 610 that it has been said time and time again that where there is more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only one offence.

The reasons for this should be obvious. Not only must those who commit one offence be discouraged from entertaining the erroneous notion that if they commit further offences they will be liable to no greater punishment than that which they would receive for a single offence, but that justice requires that the greater degree of criminality manifested by repeated breaches of the law be visited by a more severe punishment than that inflicted for a single offence".

22. Another criticism advanced on behalf of the Attorney General in this application is that the judge erred in assessing sentence by failing to fix a starting point and then giving such credit as was possible for the mitigation.

23. The following quotation from The Attorney General v. Bow Ki Lun and Leung Chung Shu, Court of Appeal, Application for Review No.4 of 1995 (at pp3-4) is apposite:

"The Third submission of the Attorney General is that the trial judge fell into error when assessing sentence because he failed to fix the starting point and then to give credit for mitigating circumstances. While there may be cases where the trial judge is not called upon to fix his starting point, in our view it is most desirable, in the great run of cases, that this be done. It allows the judge to focus upon the point from which deductions for the mitigating circumstances can be made and, should there be an appeal, it allows the appellate court immediately to comprehend the judge's approach to sentencing."

24. Furthermore, it should be noted that the maximum penalty for a person convicted on indictment for an offence of offering advantages contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap.201, is imprisonment for seven years and a fine of $500,000. The totality of sentences here is only 18 months, which is clearly inadequate and far below that of the maximum of seven years and a fine, particularly in the light of the gravity of the offences.

25. Lastly, the Attorney General complains that the judge attached undue weight to the fact that Sn Insp Lai was already a corrupt officer: the judge's third point (supra). On any view further corrupting an already corrupt police officer can never be a mitigating factor as the judge seems to think.

26. There are no mitigating circumstances in this case.

27. For the reasons stated above we allow the Attorney General's application and substitute the sentence of 36 months for that of 18 months on each count, sentences to run concurrently.