HKSAR v. So Ping Chi

DCCC 338/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 338 OF 2015

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Reasons for Sentence

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1.The defendant was convicted after trial of one count of misconduct in public office.

Summary of facts

2.This case concerns the defendant’s performance of his duties as an official of the Marine Department.

The new law: 2 January 2007 onwards

3.From 2 January 2007 onwards, in order to be issued with a license to sail within Hong Kong waters, local vessels must satisfy various new legal requirements. The Marine Department is the statutory body responsible for the enforcement of the relevant legal requirements.

4.The legislations relevant to this trial are the Merchant Shipping (Local Vessels) Ordinance, Cap.548, the corresponding Merchant Shipping (Local Vessels) (Safety and Survey) Regulation, Cap.548G; and the Merchant Shipping (Local Vessels) (Certification and Licensing) Regulation, Cap.548D.

5.The regulation which is a direct subject matter is regulation 32(2)(b) of 548G, governing the provision of life-saving appliances on local vessels:

6.“...(b) every local vessel belonging to any class, type, category or description of vessel specified in any Table in Part 2 of Schedule 3 shall comply with the specific requirements as regards the provision of life-saving appliances set out in that Table.”

7.Part 2 of Schedule 3 contains “Specific Requirements” for 4 different classes of vessels in relation to the provision of life-saving appliances. For the purpose of this trial, the relevant appliance is the lifejacket.

8.Under Table 1, for Class I  or IV  vessels to operate within Hong Kong waters, there is a specific requirement of the provision of “100% adult lifejacket + 5% children lifejacket” on each vessel (hereinafter ‘the new lifejacket requirement’).

9.Under s.9(1) of Schedule 8 of 548G, for a period of 12 months after the coming into force of 548G and thus section 32(2)(b), the section does not apply to a local vessel to which Table 1 applies. In other words, during this deferment period, Class I or IV vessels do not have to comply with the new lifejacket requirement. This deferment was referred to as ‘the grace period’ during trial.

10.The responsibility of enforcing the new lifejacket requirement in Cap. 548G falls with the Local Vessel Safety Section ("LVSS") of the Local Vessel Safety Branch of the Marine Department (“MD”). Ship inspectors of the department would conduct inspections on the vessels, record the results and then issue Certificates of Survey when they are satisfied that all legal requirements had been met. Without a certificate, the vessel cannot operate in Hong Kong waters.

The old law prior to 2 January 2007

11.Prior to the enactment of the 548G regulations, the requirement under the old law was lifejackets for 40% of the maximum number of passenger, with the remaining 60% being made up of other lifesaving appliances such as life rafts and buoys.

12.Unlike the new law, there were no specific requirements for children lifejackets. The old law required all lifejackets deployed on local vessels to be suitable for both adults and children.

The non-enforcement instruction that led to the defendant’s present prosecution

13.About 3 months after 548G had come into force, the defendant was posted to the LVSS on 16 April 2007 as the new General Manager (“GM”) and Principal Ship Surveyor.

14.It is the prosecution’s case that as the GM and Principal Ship Surveyor of the LVSS, the defendant had issued an instruction for the non-enforcement of the new lifejacket requirement. Specifically, the defendant had instructed his sub-ordinate ship inspectors to follow the old law when inspecting old vessels, and the new law when inspecting new vessels (hereinafter “the non-enforcement instruction”).

15.This instruction was followed by all ship inspectors and the practice continued until sometime after October 2012. It is the prosecution’s case that the defendant had never rescinded his non-enforcement instruction.

16.The event that led to the eventual rescinding of the instruction was the tragic collision of two local vessels in Hong Kong waters on 1 October 2012 where multiple lives were lost. A Commission of Inquiry was set up to look into the incident. Officers of the Marine Department gave evidence at the Inquiry. One of the matters that was mentioned was the ‘old vessels old law, new vessels new law’ instruction issued by the defendant.

17.After the release of the Commission of Inquiry report, the Transport and Housing Bureau (“THB”) conducted an internal investigation on the Marine Department officers. At the conclusion of the THB investigation, a case was referred to the Marine police. The defendant was subsequently arrested for the present offence based on the non-enforcement instruction  he had issued and his failure to rescind it.

18.Evidence suggest that, sometime after October 2012, the then General Manager of the LVSS Mr Leung Wing Fai had given a verbal instruction for the ship inspectors to enforce in full the lifejacket requirements under Cap.548G.

Previous convictions

19.The defendant is of previously clear record.

Mitigation

20.The defendant is 59, married with 2 children.

21.The defence provided the court with close to 40 mitigation letters, with more that came in during the adjournment. They paint the picture of the defendant as a kind, caring, generous, diligent and intelligent person and as someone with extensive experience and knowledge in the shipping industry. The defendant was approachable to representatives of the industry, passionate about the industry, and had contributed greatly to it from his position, always trying to smooth the relationship between the Marine Department and the industry.

22.The defendant was the recipient of the Ombudsman Award in 2001, and the Chief Executive’s Commendation for Government/Public Service for his contribution to the organisation of the 2009 East Asian Games.

23.Mr Marash pointed out that there are no tariff sentences for the present offence and that each case would depend on its own facts when sentencing. The first thing to consider is that this case does not involve dishonesty, corruption or malicious intent on the part of the defendant, as the court found that the defendant had issued the instruction to appease the industry.

24.The “old vessels follow old law, new vessels follow new law” practice was put in place by the defendant’s predecessor, and the successors to the defendant allowed the practice to continue. Both the predecessor and the successors escaped punishment doing what the defendant did and is an important matter to take into account.

25.Mr Marash submitted that the non-enforcement instruction has not been shown to have caused any damage to anybody, and that the criminality of the defendant’s misconduct is at the lower end of the scale of seriousness. Over a period of time, the industry would have complied with the new law without having to take the vessels out of operation.

26.It is Mr Marash’s submission that the defendant was ‘man enough’ to stand up and admit to issuing the non-enforcement instruction when others did not. Had he not done that, it would not have been easily uncovered. It is to the defendant’s credit that when others did not come forward, he put his hand up.

27.With the present conviction, the defendant stands the risk of losing his pension, and that is a factor the court should take into account. Other factors to be taken into consideration are the defendant’s positive good character. He is a good practising Christian and had done charity work such as fund raising activities for various natural disasters that happened in mainland China.

28.In relation to the cases handed up to the court in aid of sentencing by the prosecution[1], Mr Marash submitted that they are all distinguishable with our present case since they all involved dishonesty, were committed under entirely different circumstances, and are therefore of minimal assistance.

29.Mr Marash stressed that the defendant’s is an exceptional case, a crime committed by someone of ‘impeccable character’ with a strong history of community service, a family man and someone devoted to the Marine Department facing the risk of losing his pension.

Sentence

30.Under section 101I(i) of the Criminal Procedure Ordinance, Cap.221, the maximum sentence for the common law offence of misconduct in public office is that of 7 years’ imprisonment and a fine.

31.Mr Bruce for the prosecution referred to the following cases to assist in my sentencing.

32.In the case of Secretary for Justice v Wong John[2], an original sentence of 240 hours of Community Service Order was imposed on the Respondent. There the 73-year old medical doctor was convicted after trial of 2 charges of misconduct in public office and two charges of false accounting. The Secretary for Justice applied to review the sentence at first, but later sought to apply for permission to withdraw their application.

33.Although the Court of Appeal had reservation as to the reasons advanced for not proceeding with the application, they did not think that to be a case in respect of which permission should be withheld.

34.The Court of Appeal also opined that, although they had not heard argument on behalf of the respondent regarding sentence, they took the view that despite the distinguished career of the respondent and his positive good character, the sentence imposed was not appropriate. The Court pointed out that the sums involved and the breach of trust and the length of time over which the offences were committed required in principle a custodial sentence in the range of 2 to 3 years. In light of a combination of the respondent’s exceptional positive good character and the fact of re-compensation the Court might have been persuaded not to have taken issue with a suspension of a sentence of 2 years’ imprisonment.

35.In the magistracy appeal case of HKSAR v Tang Kwai Man and another[3], the appellants pleaded guilty to one charge of misconduct in public office. Facts of that case are that the appellant being a Correctional Service department officer, failed to perform his duties such as visiting of the inmates pursuant to the supervision orders imposed on them after their release from Hei Ling Chau Addiction Treatment Centre. The officer also absented himself when some of the inmates provided their urine sample or to deliver the samples provided for drug examination, even replacing their samples with his for examination. He also submitted the records of supervision with incorrect dates, times, places and/or participating officers. He failed to record  that one of the inmates had admitted to taking dangerous drugs in the period of supervision.

36.Each appellant was sentenced to 3 months’ imprisonment. It was asserted by the appellants that their misconduct was not uncommon. Madam Justice Bokhary dismissed the appeal against sentence and held that the misconduct concerned was of considerable gravity and that no matter how widespread or otherwise this sort of misconduct was, and notwithstanding the hardship to the appellants and their families, these sentences are not wrong in principle or otherwise properly open to be interfered with on appeal.

37.In Secretary for Justice v Shum Kwok Sher[4], the Court of Appeal found that the Respondent’s loss of retirement benefits and the fall from grace suffered by all his family were unusual circumstances that inevitably contributed to the punishment received. The Court found that the judge at first instance was right to have taken these mitigating factors into account, “provided they were not given too much weight.”

38.As the Chief Property Manager of the Government Property Agency, the Court found that the Respondent had been using his position to give his family an advantage on a grand scale. The misconduct arose from dishonesty practised over a number of years leaving his family businesses with very substantial property management contracts totalling no less than $157 million. The damage caused to the Government’s reputation in their contract tendering procedures was ‘incalculable’. The Court found that the Respondent should have been sentenced to ‘not less than three years’ imprisonment’.

39.Bearing in mind the sentence upon review would represent a considerable additional sentence, a further reduction of 6 months was allowed. The final sentence was a concurrent sentence on each charge of 30 months’ imprisonment.

40.In the case of HKSAR v Sin Kam Wah[5], the 1^st applicant was convicted after trial of 3 charges of misconduct in public office and was sentenced to 3 years’ imprisonment on each of the 3 charge, the sentences to run concurrently. There the 1^st applicant was a Senior Superintendent in the Hong Kong Police Force and had misconducted himself by receiving prostitution services arranged and paid for by the 2^nd applicant as some sort of sweetener to the 1^st applicant.

41.The Court of Appeal allowed the 1^st applicant’s appeal against sentence and reduced the sentences for the 3 offences of misconduct in public office to 2 years for each offence, to be served concurrently.

42.In the Magistracy Appeal case of HKSAR v Chung Sim Ying Tracy[6], Lugar-Mawson J noted that the officer in question was a relatively junior middle-management grade civil servant of only a few years’ service who was in no way approaching the time when she could hope to be the head of the Civil Service Training Institute, the government body in question. The learned judge referred to cases involving Hong Kong civil servants who have made false claims for housing benefit, involving dishonest representations by ranking civil servants which resulted in the offenders obtaining cash payments for their own benefit of amounts far higher than in their case. Lugar-Mawson J noted that all of those cases were dealt with by way of suspended sentences or Community Service Orders. For that and other mitigating factors, the learned judge found that a custodial sentence was not required in the appellant’s case and ordered the sentences suspended for 18 months.

43.In another Magistracy Appeal case of HKSAR v Cheng Chun Wai[7], there the Appellant was the Divisional Officer of the Marine Division and Commander of the Fire Services Department. He had been one of the markers of examinations required to be taken by Fire Service Installation Contractors before they could qualify to submit tenders for contracts from the Fire Services Department for work relating to the maintenance of fire extinguishers in buildings in Hong Kong.

44.The appellant was found to have admitted to assisting his friend by providing him with model answers to the examination questions and also afforded an opportunity for the friend to amend his earlier papers. The appellant was convicted of two charges of misconduct in public office after trial and was sentenced to 15 months’ concurrent imprisonment on each charge.

45.Deputy High Court Judge E Toh (as she then was) allowed the appeal against sentence. She found that because of the ‘exceptional history’ of the case and that there was no evidence that the appellant had gained any advantage, monetarily or otherwise, the original 15 months’ imprisonment sentence was manifestly excessive. A term of imprisonment that allowed the immediate release of the appellant was imposed in substitution.

Our present case

The defendant not sentenced for the Lamma IV incident

46.First of all, it is necessary to point out that the actual consequences of the defendant’s non-enforcement instruction, in particular the lack of children lifejackets on local vessels, were never considered in this trial.

47.No evidence whatsoever had been led by the parties to prove or disprove any link between the non-enforcement instruction and the loss of lives in the Lamma IV incident. The defendant is not being sentenced for the loss of lives in the Lamma IV incident.

48.The defendant is only being sentenced for the misconduct of instructing his subordinates to not follow the law as to lifejacket requirements in relation to local vessels. 

Mitigating factors taken into consideration

49.In arriving at the sentence, I have taken into account the following mitigating factors: the defendant’s devotion to his work and his family; his fundraising charity work; the risk of him losing his pension; and the fall from grace of being convicted of a criminal offence.

An immediate custodial sentence is necessary

50.I find, however, that the defendant’s misconduct so serious that there is no choice but to impose an immediate custodial sentence. The reasons are as follows.

51.The misconduct of the defendant lasted throughout his tenure as the General Manager and Principal Surveyor of Ships with the LVSB, which was from 16 April 2007 to 12 August 2010, being 3 years and 4 months. This is a long period of time.

52.I find that even though a similar instruction was in place when the defendant arrived at the LVSB, this is not a mitigating factor since, as I stated in the Reasons for Verdict, the defendant was in a position and had the opportunity and power to decide whether to continue with that practice or not. The defendant decided to issue the non-enforcement instruction and must, therefore, suffer the consequences.

53.The misconduct of the defendant related to the installation of lifejackets on local vessels. As I had already pointed out in my verdict, lifejackets are carried on board vessels to enhance the chance of survival in case of an accident at sea. The consequences of the defendant’s decision to not follow the legislature’s new lifejacket requirements are potentially very serious. 

54.Hong Kong civil servants are world renowned for their integrity and efficiency. It must have been shocking for the general public to find out that a senior official of the Marine Department had chosen to deliberately ignore the lifejacket requirements in order to appease those in the industry, and for such a long time.

55.I find that the defendant’s misconduct must have eroded the public’s trust placed in the Marine Department, if not the entire civil services system. It is going to take some time for that trust to be re-established in full. The damage done by the defendant's misconduct is serious and far-fetching.

56.I accept that the defendant had always been an excellent civil servant and well-liked and respected by his colleagues and those in the shipping industry. I find, however, that it was this need to be on good terms with the industry that had driven the defendant to commit the present offence.

57.While it is true that there are no dishonest, corrupt or malicious motives behind the defendant's commission of the offence, the seriousness of the defendant’s misconduct lies in his deliberate decision to supplant the will of the legislature with his own.

58.Given the seriousness of the potential consequences of the defendant's misconduct and the impact it has on public confidence, I find that an immediate custodial sentence is necessary.

Starting point and discount

59.Taking into account all the circumstances of the case, and bearing in mind the sentences imposed in the various cases referred to above, I will adopt a starting point of 18 months’ imprisonment. For the various mitigating factors, I will reduce this sentence by 2 months.  Since the defendant is convicted after trial, there is no discount based on a guilty plea.

Final Sentence

60.The defendant is therefore sentenced to 16 months’ imprisonment.

61.I do not find that there are any exceptional circumstances that would allow me to suspend this sentence.

[1] Secretary for Justice v Shum Kwok Sher [2001] 3 HKLRD 386 (Application for Review No.1 of 2001); HKSAR v Chung Sim Ying Tracy, HCMA 267/2001; HKSAR v Sin Kam Wah and another, CACC 520/2003; HKSAR v Cheng Chun Wai, HCMA 724/2006; HKSAR v Tang Kwai Man & Another [2013] 6 HKC 350 (Magistracy Appeal No.752 of 2012); Secretary for Justice v Wong John [2014] 2 HKLRD 278

[2] Secretary for Justice v Wong John [2014] 2 HKLRD 278

[3] HKSAR v Tang Kwai Man & Another [2013] 6 HKC 350 (Magistracy Appeal No.752 of 2012)

[4] Secretary for Justice v Shum Kwok Sher [2001] 3 HKLRD 386 (Application for Review No.1 of 2001)

[5] HKSAR v Sin Kam Wah and another, CACC 520/2003

[6] HKSAR v Chung Sim Ying Tracy, HCMA 267/2001

[7] HKSAR v Cheng Chun Wai, HCMA 724/2006