Attorney General v. Lui Yu Choi

CAAR000016/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 16 OF 1973

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

Date of Judgment: 6th November, 1973.

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JUDGMENT

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1. This is an application by the Attorney General to review a sentence passed on the respondent in the Magistrates Court. The respondent was charged with the offence of bribery of a Crown servant while having dealings with the Government contrary to section 8(1) of the prevention of Bribery Ordinance.

2. The facts of the case were that the respondent was a sub-contractor of certain buildings. His trade is plumbing. There came a time when an inspection was to be carried out of the building prior to the issue of an Occupation Permit. An officer of the Public works Department carried out an inspection but refused to grant a Permit because of certain defects, albeit of a minor nature, which were apparent. After the inspection, the respondent handed a package, which later was found to contain the sum of $2,000, to one of the two officers responsible for the inspection. One of the officers tried to get the respondent to take back the package, but he would not. The magistrate sentenced the respondent to a fine of $500.

3. The Attorney General applied to the court to review this sentence on the grounds that it was manifestly inadequate. On the respondent's behalf it was pointed out that the bribe was given to the officer of the Public Works Department not for any specific favour be granted to the respondent himself, but that it was more in the nature of a corrupt tip or present. Indeed, it is apparent from the record that the sum in question could not have been provided by the respondent himself since his whole profit from the work he was doing on the site was only $1,500 and the sum of money which was corruptly given was $2,000.

4. Mr. Yu, on behalf of the respondent also urged that this was a minor matter and not a serious case and not one which merited a custodial sentence. In addition, he pointed out that the respondent was a registered sub-contractor, that is to say, registered with the Public Works Department and as a result of his conviction he would almost certainly have to return to the position of a labourer. For he would not be able to engage in undertaking sub-contracts of construction work in the future.

5. We think that the proper sentence for a conviction of an offence under section 8(1) of the Prevention of Bribery Ordinance is a custodial sentence in all but the rarest of cases.

6. We wish to point out that this case shows that there was considerable delay on the part of the Public Works Department in issuing an Occupation Permit, even after all the defects which were pointed out had been rectified. Such a period of delay almost invites corruption, time being of such importance in the building construction world. We think that this should be brought to the notice of the Public Works Department.

7. In the circumstances, the application of the Crown is granted and we think that the appropriate sentence is that the fine be increased to $2,000 and, in addition, that the respondent be sentenced to nine months' imprisonment which will be suspended for two years. The extra $1,500 is to be paid within ten days and there will be a sentence of six months' imprisonment in default.

Representation:

B.A. Sceats for Applicant/Attorney General.

P. Yu (Tso & Co.) for Respondent.