R. v. NG YAU LEE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.344 OF 1997

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J U D G M E N T

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1. The appellant was convicted by her own plea of one count of offering an advantage. She was sentenced to three months imprisonment.

2. The facts as admitted by the appellant were that she was found by a police officer to have in her possession 580 packets of duty-not-paid and without health warning and tar group designation cigarettes. The appellant produced two $500 notes and offered them to the police officer asking him not to arrest her. She was there and then arrested.

3. It is agreed fact that when the appellant was arrested she was pregnant for 10 months. She had a previous similar conviction for possession of duty-not-paid cigarettes and at the time of arrest she was afraid that for this second similar offence, she would be sent to prison in which case she had to give birth to her baby in prison. It was out of her anguish for her yet unborn baby that she, on the spur of the moment, committed the offence. The baby was born between her arrest and her conviction. It was submitted in mitigation by counsel on her behalf before the magistrate that she had little education and she had to support a mentally ill husband and a 16 year old son who was a student and both of them could not look after the baby if she were to serve her term of imprisonment.

4. The magistrate said in his findings that he was moved by the circumstances of the appellant but he felt duty bound to impose an immediate custodial sentence. He considered a deterrent sentence must be imposed on anyone who attempts to corrupt a police officer. In his opinion, it was those of little education with pressing social or domestic difficulties who are most likely to attempt bribery albeit with small sums, of the constable on his beat. He referred to R. v. Lai Yuk Kui [1981] HKLR 691 which considered the minimum term should be 12 months imprisonment for an offence of this kind. However, he took 9 months as a starting point and reduced it to 3 months taking into consideration the appellant's plea and special personal circumstances. Mr Forrest for the appellant, while accepting that the sentence of 3 months was in no way inordinate or excessive, submitted that this was one of the cases where because of the appellant's special circumstances, the court should, as an act of mercy, suspend the sentence.

5. He submitted that while Lai Yuk Kui set down the minimum sentence for corruption offences of this kind, it nevertheless provided that in an exceptional case, the offender could be dealt with in ways other than a custodial sentence. A number of English cases were referred to, namely R. v. Vaughan (1982) 4 Cr.App.R(S) 83, R. v. Franklyn (1981) 3 Cr.App.R(S) 65 and R. v. Parkinson p.3024 and para.C4.2(d) of Thomas - Current Sentencing Practice, where the Court of Appeal there because of the family situation of the appellants and the need to enable children of the family not to be separated from their parents reduced the sentence to enable early reunion with their children. He also submitted that if the magistrate had asked for a social background report, the magistrate might have been in a better position to decide otherwise.

6. No one would disagree that corruption is cancerous and must be deterred. However, having regard to the appellant committing the offence when she was in anguish and her special family circumstances, it is proper for me to treat this as a case falling within the exception in Lai Yuk Kui. The appeal is allowed, the sentence of 3 months imprisonment is set aside and a sentence of 3 months suspended for 12 months is substituted therefor.