Amar Singh Dhillon and Another v. The Queen

CACC000142/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 142 OF 1975

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Coram: Briggs, C.J., Huggins & McMullin, JJ.

Date of Judgment: 4th April 1975

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JUDGMENT

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Briggs, C.J.:

1. The two Appellants (the first and second Defendants in the court below) seek leave to appeal against sentences of one year's imprisonment on a charge of conspiracy and of one year's imprisonment concurrent on a charge in each case of accepting an advantage contrary to s.9 of the Prevention of Bribery Ordinance. Another Defendant, against whom the second charge was one of offering an advantage, has not appealed.

2. The first two Defendants were employees of a company of insurance assessors. The company was engaged by insurers in connection with some fire damaged wool and the first Defendant was instructed to find a purchaser at the best possible price. The second Appellant was instructed to assist him. The first and second Defendants agreed with the third Defendant to secure the sale of the wool to the third Defendant at a price lower than that obtainable elsewhere in return for a secret commission, to be shared between the first and second Defendants. The first and second Defendants did as they were asked and the third Defendant resold the wool at a substantially higher price. The third Defendant benefited to the extent of $402,600, while the first Defendant received $73,165.40 and the second Defendant $77,000. For the purposes of the present appeal we must accept that the third Defendant made the first approach and instigated the offences, although we are told that he denied being the instigator.

3. The Appellants have made full restitution of the sums received by them and we are told that their jobs with the assessors are still open to them if they are discharged from prison. Counsel points out that the third Defendant did not make restitution but was sentenced by another judge to like terms of one year's imprisonment and he submits that it would be proper to suspend the sentences against the present Appellants.

4. The learned trial judge considered passing suspended sentences but took the view that he was prevented from doing so by a decision of this Court in Attorney General v. Young Lap Kin Application for Review No. 10 of 1973. He was at pains to tell the Appellants that prior to that decision he had for many years been of opinion that temptation placed in the path of poorly paid employees should be a factor to be taken into account when considering sentence and that leniency could well follow to the extent that a custodial sentence was not inevitable, but he said that he "had been overruled on that point". He cited a passage from the judgment but neither that passage nor anything else in the judgment laid down that in cases where an employee abused his position of trust he must, even though he had been subjected to great temptation, be given "a custodial sentence" - by which we understand the judge to have meant an immediate custodial sentence. Each case must be considered on its merits and all that was laid down in Attorney General v. Young Lap Kin was that where an employee perpetrated deliberate and repeated frauds the fact (if it was a fact) that he thought he had been lowly paid for the responsibility placed upon him was not enough to take the case out of a category of offences which normally require a substantial and peremptory prison sentence. In the present case there was no repetition of the fraud and although there was dishonesty it was not so heinous as that in the case cited, where the defendant on no less than five occasions prepared cheques in such a way that after they had been signed they could readily be altered and where he did in fact thereafter forge those cheques.

5. We have considered the appeal on the basis that the judge was wrong to think he was precluded - and, therefore, on the basis that we are not precluded - from suspending the sentences. In the event the majority of the Court is of opinion that it would be appropriate that the sentences should be suspended and, treating this as the hearing of the appeal, we allow the appeal and so order. The suspension will be for two years.

4th April, 1975.

Representation: