HKSAR v. Samuel Alexandre Nicolas Bongard

HCMA 2/2018

[2018] HKCFI 266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 2 OF 2018

(ON APPEAL FROM ESCC 2944/2017)

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BETWEEN

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REASONS FOR JUDGMENT

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1.The appellant pleaded guilty to one count of offering an advantage to an agent, contrary to section 9(2)(a) and punishable under section 12(1) of the Prevention of Bribery Ordinance, Cap 201.

2.He was sentenced to three months’ imprisonment.  His appeal against that sentence was dismissed.  I indicated that the reasons for my decision would be given in due course.  I now do so.

3.The appellant was the sole signatory of an account held with the HSBC.  PW1 and PW2 were the bank staff assigned to handle that account.  Since mid‑November 2016, the appellant had repeatedly sent emails to them making enquiries about remittance requirements and procedures.  On two occasions he went to make enquiries with them about a remittance in the sum of 5 million Euros that he was expecting.  After being told that the sum had not been received in his account, on 13 December 2016, the appellant sent an email to PW2 asking if he could tell the sender of the remittance to contact her directly.  It was also stated in that email that if PW2 could help him, he would give her one per cent of the 5 million Euros, that is, 50,000 Euros.  PW2 made a report to her supervisors.  The appellant admitted that he did make such an offer to PW2 by email.  He said that as he was of the view that PW2 was not eager to help, he made such an offer so that she could spend more time and effort in handling the remittance.

Grounds of appeal against sentence

4.Counsel for the appellant, Mr Clive Grossman SC, advanced the following grounds:

(1) The sentence imposed was manifestly excessive and an immediate custodial sentence was not warranted in the circumstances;

(2) The magistrate erred in finding that it was necessary for the HSBC to ensure that the reputation was maintained as there was no suggestion that the appellant was trying to obtain any illegal advantage;

(3) The magistrate failed to take into account the following in finding that there was very little mitigation:

(i) this was a technical breach in that the appellant was merely asking for what he was entitled to and he had no real intention to commit a crime;

(ii) there was no prejudice to the bank as PW2 did not accept the offer;

(iii) the personal circumstances of the appellant, namely, a foreigner who was, at the time of sentencing, forced to remain in Hong Kong and on the verge of bankruptcy;

(4) The magistrate erred in imposing a deterrent sentence as “persons who do not realize that they are committing such an offence would not be deterred”.

Respondent’s reply

5.Counsel for the respondent, Mr William Tam SC, stressed that the courts have consistently emphasized that bribery and corruption offences are intolerable offences which warrant deterrent sentences.  Immediate custodial sentence is the norm.

6.Mr Tam submitted the circumstances of the present offence could not be said to be a merely technical breach.  A substantial bribe was deliberately offered to induce bank staff into giving him preferential or extra treatment over other customers.  Mr Tam relied on the case of Secretary for Justice v Chan Chi Wan Stephen (2017) 20 HKCFAR 98 to submit that there is no need to show actual or direct economic detriment or prejudice to the HSBC.  The gravamen of the offence is that such offences undermine the integrity of the agency relationship, its trust and loyalty, giving rise to serious reputational damage to the principal.

7.It was further submitted that the personal circumstances and “foreignness” of the appellant did not constitute exceptional circumstances to suspend the immediate custodial sentence.

8.The respondent submitted that the three months’ sentence on a plea is already a lenient sentence and this appeal should be dismissed.

My Judgment

9.In Secretary for Justice v Kwan Chi Cheong [2009] 4 HKLRD 274 the Court of Appeal said:

“16. The Prevention of Bribery Ordinance . . . was intended to be draconian in its effect. Bribery, whether in its acceptance or by the offering of an advantage, is an evil which can strike at the heart of commercial and public life if it is left unchecked. A punishment that fails to deter will produce all the wrong signals just as sentences which act as a deterrent will reinforce this community’s effect to rid itself of corruption.

17.     For these reasons, even the first offender charged with an offence of corruption under the Ordinance, unless it is merely a technical breach, must usually expect a deterrent sentence.  This will almost invariably involve a sentence of immediate imprisonment.”

10.The deterrent nature of the sentences in respect of this type of offence was reiterated in subsequent cases such as Secretary for Justice v Li Cheuk Ming [1999] 1 HKLRD 273 and HKSAR v Pau Chin Hung Andy [2014] 1 HKLRD 600.

11.Mr Grossman submitted that this was not the type of case which would act as a deterrent to any foreigner coming to Hong Kong who wanted to urge a staff member of an institution to get on with their job.  This is misconceived.  Firstly, ignorance of the law is neither defence nor mitigation in offences of this nature.  Secondly, as Hong Kong is a commercial city and the probity of its financial institution is of great importance, “it must be made known to those who are tempted, that if discovered and convicted they will be subjected to immediate custodial sentence of a substantial character”: R v Stuart Leslie Turner [1989] 2 HKLR 123.

12.It was submitted by Mr Grossman that the bank suffered no prejudice and this was a mere technical breach.  One has to look closely at the circumstances of the offer of the bribe.  A bribe in the sum of 50,000 Euros could not be said to be an insignificant amount. The purpose of such, even on the appellant’s own account, was to ask PW2 to “get a move on” and to give him permission to ask the sender of the remittance to contact her directly.  Whilst the appellant might have acted out of desperation under the impression that the bank staff were not giving him the assistance he required, the offer was a deliberate one to suit his own purpose. He resorted to bribery to get others to do things his way.  In effect, it was to induce, or to use Mr Grossman’s words, to “galvanize” a bank staff, into giving him prioritised and preferential treatment over other customers. Although this was a one‑off offer and PW2 did not succumb to the temptation, the purpose of this galvanising was no doubt to induce the agent to act prejudicially to the reputation of the principal’s business.  Whilst no one has suffered actual economic loss, “the Court also has to take a broader view of the matter and take into account the adverse effect this type of offence has on our society”: HKSAR v Pau Chin Hung Andy, supra.  Mitigation on the basis of “technical breaches”, ignorance of the law, that there was virtually no victim, lack of real intention to commit any crime has already been found to be “nonsensical submission” by Beeson J in HKSAR v Cheung Chi Siu & Anor [2001] 1 HKLRD 356.

13.So, is this a highly exceptional case which warrant a suspension of the immediate custodial sentence?  The Court of Appeal in Li Cheuk Ming, supra, said that:

“Generally speaking, exceptional circumstances can be categorised into personal exceptional circumstances, exceptional circumstances relating to the nature of the offence, and exceptional circumstances relating to consequences. The definition of exceptional circumstances varies from case to case. The circumstances are usually very extreme or it could attract an immediate outpouring of public sympathy . . .

. . . But obviously, a guilty plea, general family background and financial losses do not constitute exceptional circumstances . . . ”

14.In Secretary for Justice v Tang Shu Cheong [2012] 5 HKLRD 466, the Court of Appeal examined a number of decided cases involving corruption where suspended sentences were imposed.  It can be discerned from those cases that the following were taken to be capable of constituting exceptional circumstances: serious delay on the part of prosecution; agents in question indirectly lured the appellant to offer an advantage to them; old age and poor health of the appellant may constitute a plea of ad misericordiam; special features in the case not tarnishing the image of Hong Kong and assistance to the authorities.  The court emphasized that each case was decided in the light of its own facts and no generalisation could be drawn from those decisions. Foreignness of an appellant has been held in many authorities not to constitute exceptional circumstances.

15.All that was advanced on appeal was a repetition of the mitigation advanced in the court below.  As I have said in HKSAR v Kan Wai Keung, HCMA 735/2011:

“The Courts have throughout the years taken a serious view of offences concerning bribery, and only in rare circumstances would an accused spare the clang of the prison gate.”

16.The present case is not one of those.

17.This piece of legislation is intended to be draconian in its effect:

“If the courts do not adhere to this principle, a wrong message will be conveyed to the public that corruption is a common and acceptable societal practice, and this will significantly undermine the anti‑corruption achievements that Hong Kong has over the years worked hard to build up.” per Cheung JA, Tang Shu Cheong, supra.

18.None of the factors advanced, in isolation or combination, justify a non‑custodial sentence.  A fine would be wrong in principle and a departure from the sentencing norm.  The sentence imposed by the learned magistrate is not manifestly excessive.

Mr William Tam SC, DDPP and Ms Anthea Kwok, SPP (Ag) of Department of Justice, for the respondent

Mr Clive Grossman SC, instructed by Chiu, Szeto & Cheng Solicitors, for the appellant