HKSAR v. LEUNG WAI YIN

DCCC149/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 149 OF 2011

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Reasons for Sentence

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1.  The defendant has been convicted after trial on one offence of misconduct in a public office. He is a 47-year-old man and his occupation is a police sergeant in the Hong Kong Police Force.

2.  As to the particulars of his misconduct and the facts found, I just simply refer to the judgment I have just given and the verdict I have just rendered in respect of this case.  I do not propose to go into any great detail in respect of that, save to say that the defendant’s position enabled him to create what might be regarded as an obligation between himself and the first prosecution witness. 

3.  The defendant, as we know from the case, was involved in the arrest and also the search of PW3, who is the defendant’s son’s case, and had previously had a form of relationship with the first prosecution witness which enabled him to make an approach towards the first prosecution witness, that approach involving the initiating and proposing of the engagement of a particular lawyer and also making representations that influence could be brought to bear that would assist PW3 and no doubt this had been used to enhance the request that PW1 use a particular form of legal representation that the defendant was urging on him.  We know from the facts later that the defendant felt empowered to make approaches where he was soliciting a loan from PW1.

4.  The common feature of many cases of misconduct in a public office is the ability of the defendant to exploit his position for his own or someone else’s benefit and it does appear in this case that the defendant was in a position where he was attempting to exploit the relationship he created with PW1.

5.  The offence of misconduct in a public office can take many forms and, of course, there is no active tariff in place for such offences because of that but it is a serious offence and its effect is to reduce public confidence in the people who hold certain public offices.  This is particularly important in the case of people who hold office as police officers because they have such a particular responsibility in the investigation and prosecution of criminal offences which could result in the loss of liberty and that is one of the reasons why these offences have to be taken very seriously and one can see that in the sentences that have been imposed on police officers in the past who have committed this offence.

6.  The defendant is, of necessity, of clear record to date.  In the evidence produced before me I have seen letters of commendation.  He has evidently been an able and dedicated police officer. That cannot be taken away from him.  In his personal life, he was married and divorced in 2006.  He has a son aged 16.  He has currently during his period of suspension been living in Shenzhen in the PRC.  He has been suspended from the police while this offence was being investigated and prosecuted so has been on reduced pay as a result of that.  He had been a police officer since 1982.  I am told that this conviction will almost inevitably lead to him losing his job.  There is also, I am told in mitigation, that he will be in a position where he will lose his pension lump sum.  I was told this would be in the region of $1.3 million.  He also has a medical problem and he suffers from diabetes.

7.  As far as his involvement in this particular case is concerned, it is submitted that there is no evidence of financial gain.  Although it has been found there was an attempt to obtain a financial gain, no money was ever paid over.  There is no evidence that he profited in any way from what might be described as large fees that were charged and that he might have done remains only a suspicion which must be dismissed for the purposes of sentencing.  Furthermore, that the prosecution of the offence against PW3 does not appear in any way to have been affected.  PW3 was properly investigated, properly prosecuted and convicted.  As I said, the defendant’s exploitation of his position played to a certain extent on the naivety of the first and second prosecution witnesses.

8.  I have been referred by counsel to a case involving misconduct in a public office where a Community Service Order was imposed on the defendant after sentence.  In this case, I consider that the defendant’s position as a police officer and exploitation of that position means that a non-custodial sentence would not be appropriate. 

9.  There is a question of public trust in such public officers such as police officers which can only be maintained by the imposition of what might be described as deterrent sentences and so I consider that a custodial sentence must be imposed.  There is no tariff but the sentence must accordingly reflect the gravity of the involvement of a police officer in this kind of offence. 

10.  I consider that the appropriate starting point for a sentence in respect of this offence and these facts will be one of 24 months’ imprisonment. 

11.  I believe it is only fair to reflect in the sentence the loss of employment and pension by the defendant which has a particular punitive effect in his case.  I will reduce that sentence by 3 months’ imprisonment to reflect this to a sentence of 21 months’ imprisonment.