HKSAR v. Leung Chun Man
Read the full judgment text of CACC 156/2003 on BabelCite. This Court of Appeal judgment was delivered on 17 October 2003 before Cheung JA, Lugar-Mawson J.
Criminal law – bribery – Prevention of Bribery Ordinance – sentencing – totality principle – application for leave to appeal against sentence – police officer with fourteen years' service – applicant convicted of conspiracy for a public servant to solicit an advantage and two counts of being a public servant accepting an advantage – corrupt scheme with co-defendants to extort money from a person under investigation by a private company for alleged wrongdoings in commercial transactions – applicant used his police identity to tell victim that he would not be arrested if he paid money – victim eventually agreed to pay $17,000 – as precondition paid $10,000 to applicant and another defendant, of which applicant received $3,000 – applicant arrested by I.C.A.C. when collecting remaining money – applicant pleaded guilty at beginning of trial to all three charges and gave evidence for prosecution against co-defendants, receiving 50% discount in recognition of guilty plea and assistance – starting points of two years, one year and one year – sentences imposed of one year, six months and six months – second sentence consecutive to first, three months of third consecutive to second and remaining three months concurrent to second, making total of twenty-one months' imprisonment – separate earlier conviction for trafficking 76.63 grammes of heroin hydrochloride found in car in which applicant was arrested – earlier sentence of eight years and six months imposed on 19 November 2002 – applicant abandoned application for leave to appeal against earlier conviction and sentence on 7 May 2003 – aggregate sentence of ten years and three months' imprisonment – whether aggregate sentence so disproportionate to criminality of offences that it amounts to crushing sentence – principle that sentencing court must have regard to totality of all sentences defendant will be subject to, including those recently imposed, citing R. v. Tong Hoi Fung [1988] 1 HKLR 610, R. v. Ng Chun Keung [1993] 2 HKC 171, HKSAR v. Chan Ho Yin (CACC 257/2000) and HKSAR v. Lo Chung Yin (CACC 155/2003) – aggravating factors of being serving police officer responsible for enforcement of law and order in Hong Kong and committing serious offences eroding foundation of city as clean and law-observing – counsel for applicant did not seek full concurrency, only some overlapping – court not convinced total sentence manifestly excessive – application for leave to appeal against sentence refused.
Legal issues: Whether aggregate sentence of ten years and three months is manifestly excessive such that leave to appeal against sentence should be granted
Outcome: Application for leave to appeal against sentence refused
Cited by 5 cases · Cites 3 cases
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CACC000156/2003 CACC 156/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 156 OF 2003 (ON APPEAL FROM DCCC NO. 646 OF 2002)
Coram: Hon. Cheung J.A. and Hon. Lugar-Mawson J. in Court Date of Hearing: 17 October 2003 Date of Judgment: 17 October 2003 _______________________ J U D G M E N T _______________________ Hon. Cheung J.A. (giving the judgment of the Court): The offences 1.The applicant was convicted on his own plea of three offences under the Prevention of Bribery Ordinance. The first was conspiracy for a public servant to solicit an advantage. The second was being a public servant he accepted an advantage. The third was also being a public servant he accepted an advantage. There were other defendants involved in these charges. The sentences 2.The sentences imposed by H.H. Judge Toh are as follows :
3.The second sentence was to be served consecutively to the first. Three months of the third sentence were to be served consecutively to the second and the remaining three months concurrently to the second, making a total of twenty-one months' imprisonment. Application for leave 4.The applicant now asks for leave to appeal against sentence. The facts 5.The facts revealed that the applicant was a serving police officer. He took part in a scheme with other defendants to extort money from a person (the "victim") who was under investigation by a private company in relation to alleged wrongdoings in some commercial transactions. The applicant used his police identity and told the victim that he i.e. the victim would not be arrested if he agreed to pay money to the applicant and the co-defendants. This is the subject matter of the first charge. 6.The victim eventually agreed to pay $17,000.00. As a precondition he had to pay $10,000.00 first to the applicant and another defendant. He duly paid this sum. This is the subject matter of the second charge. The applicant received $3,000.00 while the other defendant received $7,000.00 from this sum. 7.The applicant and other defendants then collected the $17,000.00 from the victim. At that stage the victim had reported the matter to the I.C.A.C. The applicant was arrested when he received the money. This is the subject matter of the third charge. The discount 8.The applicant pleaded guilty to all three charges at the beginning of the trial and he gave evidence for the prosecution against the co-defendants. The 50% discount he received on the sentences was given in recognition of these considerations. Totality 9.No complaint was made of the length of the total and individual sentences in this case. The only issue in this appeal is whether the twenty-one months' imprisonment was too long when taking into account the eight years and six months' imprisonment he had already been sentenced. The earlier sentence 10.This earlier sentence was in respect of a trafficking in dangerous drugs offence. The facts showed that after the applicant received the $17,000.00, he was arrested by the I.C.A.C. officers while he was in a car. Drugs were found inside the car. He was charged with the offence of trafficking in dangerous drugs, namely 76.63 grammes of heroin hydrochloride. He pleaded not guilty but was convicted after trial. He was sentenced on 19 November 2002. He had lodged an application for leave to appeal against the conviction and sentence but had abandoned it on 7 May 2003. The principle 11.The principle is clearly that the sentencing court must have regard to the totality of all the sentences that the defendant will be subject to, including those to which he has been recently sentenced (R. v. Tong Hoi Fung [1988] 1 HKLR 610, R. v. Ng Chun Keung [1993] 2 HKC 171 and HKSAR v. Chan Ho Yin (CACC 257/2000). This approach was also recently followed by this Court in HKSAR v. Lo Chung Yin (CACC 155/2003). 12.The judge refused to order the sentences for the corruption offences to be served concurrently with the earlier sentence. The total sentence the applicant has to serve is ten years and three months' imprisonment. 13.Ultimately the question to be considered is whether the sentence is appropriate to the offences. Is it so disproportionate to the criminality of the offences that it amounts to a crushing sentence? 14.Mr. Delaney, counsel for the applicant, is not seeking for the two sets of sentences to be wholly concurrent. He is only seeking some overlapping in the two sets of sentences. In our view, Mr. Delaney has said all he can say on behalf of the applicant. However, we are not convinced that the total sentence is manifestly excessive. The sentence for the drugs offence was imposed by reference to the tariff. The applicant's remorse and assistance to the I.C.A.C. in respect of the corruption offences were duly considered by the judge and reflected in their sentences she imposed. 15.The applicant was a serving police officer when he committed these two sets of offences. He had been in the police force for fourteen years. For a public servant who was responsible for the enforcement of law and order in Hong Kong, his involvement with these serious offences are clearly aggravating factors. Trafficking in dangerous drugs and corruption by public servants are offences which will erode the very foundation of Hong Kong as a clean and law observing city. Conclusion 16.The total sentence of ten years and three months is appropriate to the criminality of the offences. The application is accordingly refused.
Representation: Mr. Tam Sze Lok, SGC of the Department of Justice for the respondent Mr. Michael Delaney instructed by the Legal Aid Department for the applicant |
Cases cited in this judgment