HKSAR v. Ng Man Yuen, Avery

[English Translation – 英譯本]

HCMA 264/2018

[2019] HKCFI 1485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.264 OF 2018

(ON APPEAL FROM ESCC1036/2017)

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JUDGMENT

1.The appellant was charged with three counts of “disclosing the identity, etc. of persons being investigated”, contrary to Section 30(1)(b) of the Prevention of Bribery Ordinance, Cap. 201, Laws of Hong Kong.

2.The appellant pleaded not guilty to all the charges. After trial, he was convicted of all three charges by Cheng Lim-chi, a magistrate sitting at the Eastern Magistracy and was sentenced to 4 months’ imprisonment for each charge, all to run concurrently.

3.The appellant appeals against the convictions and sentences.

Representation of the parties

4.The respondent was originally represented by Mr Robert Lee, Senior Assistant Director of Public Prosecutions, and Ms Kasmine Hui Hei-ching, Acting Senior Public Prosecutor. On 6 November 2018, both counsel submitted written submissions in this appeal. Subsequently, Mr Lee retired and the respondent was then represented by Ms Alice Chan, Senior Assistant Director of Public Prosecutions, and Ms Kasmine Hui Hei-ching, Senior Public Prosecutor. Ms Chan made it clear that the prosecution adopted the written submissions submitted by Mr Lee and Ms Hui.

5.The appellant was originally represented by Mr Randy Shek of counsel. On 19 October 2018, Mr Shek submitted written submissions. Thereafter, the appellant was represented by Mr Johannes Chan, SC (Hon) and Mr Randy Shek of counsel. The appellant also adopted the written submissions submitted by Mr Shek. In addition, Mr Chan submitted speaking notes to assist this Court.

Facts of the case

6.Counsel for the respondent, in their written submissions, have succinctly stated the prosecution case and the defence case which this Court basically adopts.

Prosecution case

7.The prosecution case was that on 2 April 2016, the appellant lodged a corruption complaint with the Independent Commission Against Corruption (“ICAC”) in relation to the suspected conflict of interest and deferred benefits between the then Permanent Secretary for Home Affairs Mrs Betty Fung Ching Suk Yee (“Ching”) and her husband and a businessperson. Various newspapers reported that the appellant went to the ICAC to lodge a complaint.

8.At 12:50 pm on 5 April 2016, the appellant was notified by the ICAC that they had decided to launch an investigation into the matter. Investigators arranged with the appellant for an interview at 3 pm the following day and reminded him not to disclose the matter. In the afternoon of the same day, the appellant, on his Facebook account (at 1:27 pm) and Facebook Page (at 1:28 pm), published the following: “Have just been informed by the ICAC that they will launch a formal investigation into Ching’s flat-swap deal” (Charge 1).

9.Having found out that there was news coverage of the interview arrangements in question, the ICAC called the appellant, reminding him not to disclose the matter and the appellant, in reply, said “[I] know what to do”. Subsequently, the ICAC decided to call the appellant again and changed the interview to another venue and time. The appellant agreed to the arrangements but said that reporters would be wishing to “take a photo only”. The ICAC once again gave the appellant the relevant confidentiality reminder and he said he understood. On the same day, a number of media organisations reported that the appellant was going to give a statement at the ICAC and broadcasted the recording of a phone interview with the appellant (Charge 2):

“First, it was suspected that deferred benefits might be involved, er, because the flat-swap deal on this occasion was not a relatively common sale and purchase arrangement. And her husband also, a few, quite a number of years back, might have with this, er, seller business or official relations indeed. Regarding the arrangement of this flat-swap deal, in fact, to a certain extent, it served to evade, er, stamp duty. So, it is hoped that this time, er, the ICAC can investigate into it and find out the truth. And Mrs Fung Ching Suk Yee is also, er, it is hoped that (she) can account for the matter to the public as soon as possible.”

10.On the day of statement-taking, i.e. 6 April 2016, the appellant was interviewed by media outside the ICAC. He said that he was going to give a statement as a complainant and he thought that Ching should explain the matter to the public. The contents of the interview and his visit to the ICAC to give a statement were reported by various news media:

“Being a complainant, also as a Hong Kong citizen, I therefore also learnt of the information that I knew from the media. Er, however, it is just because I am a complainant, so, procedure-wise, I need to give, er, come and give a statement today. Now, at this very moment, in fact, the most important thing is that, er, Mrs Fung Ching Suk Yee herself, that is, can, er, give a public explanation, er, that is, er, disclose to members of the public, er, the circumstances of the incident from beginning to end, so that, er, public confidence in the civil service can be restored. As we all can see, over a period of time in the past, there were many high-ranking officials, including the former CE, er, and even Leung Chun Ying, who had too many cases of suspected, er, bribery or conflict of interest, which either ended up with nothing concrete or have not been uncovered by now despite investigations. Well, if, at this very moment, er, the ICAC should, er, handle the case(s) quickly and impartially; otherwise, er, on the whole, I believe that the confidence of the Hong Kong citizens in the CE, the Hong Kong government, er, or even the civil service, will be getting weaker and weaker.”

11.In addition, during the statement-taking, the appellant published the following message on his Facebook account:

“Giving a statement at the ICAC; as I am sitting idly waiting for the investigator to write a statement of a thousand words and a few days ago, a thousand people reminded me, saying that I had low popularity, it’s time for me to promote my Page.”

12.The appellant also published on his Facebook account, Facebook Page, Twitter and Instagram accounts a selfie with the ICAC logo as the background and a caption that read: “Very fricking boring. Have waited for a fricking long time” (Charge 3).

Defence case

13.The appellant elected to give evidence and sought to use “reasonable excuse” as his defence. He said the matter involved “public interest” and in disclosing the matter, he was seeking to effectively monitor the government in handling officials suspected of abuse of power, thereby compelling the ICAC to carry out investigations seriously and be accountable to the public. As the “flat-swap” incident had been reported by the media, the disclosures in question would not have caused prejudice to the investigation or the reputation of the people involved.

Reasons for verdict

14.The magistrate accepted that “public interest” might constitute a “reasonable excuse” under the relevant Ordinance and that the appellant, in seeking to use “reasonable excuse” as his defence, only had the burden of “adducing evidence”.

15.Applying the ejusdem generis rule, the magistrate held that the disclosures must have been based only on matters of great public interest and not matters of minor and trivial nature.   

16.In considering “reasonable excuse”, a broad approach should be adopted (see HKSAR v Ho Loy)[1]. The magistrate, having held that the appellant made the disclosures despite his clear understanding that he was not allowed to disclose the investigation in question, stated in his statement of findings the appellant’s reasons for the disclosures and whether there was any “reasonable excuse” for the appellant’s “disclosures”:

“Reasons for disclosures

79. The defendant emphasised, in his testimony, that he had been to the ICAC in the past to make a report against various high-ranking government officials (including Donald Tsang and Timothy Tong) and there had been media coverage of it. The defendant thought that the public would not report high-ranking officials themselves and that if no one made a report against them, then it would not be possible to know whether law enforcement agencies would take the initiative to carry out investigations and give explanations.

80. The defendant also criticised the Legislative Council’s failure to effectively monitor officials. Therefore, he made reports to the ICAC in the name of a political party, which was conducive to compelling the ICAC to carry out serious investigations and be accountable to the public.

81. And the defendant himself considered that he could not provide any extra information at all on the flat-swap incident and that before he made the disclosures (or the report), the incident had been reported by the media.  His disclosures would not have caused any further prejudice to Ching’s reputation.

82. However, the defendant had once stated clearly on Facebook (i.e. FB account) that he was of “low popularity” and “it’s time for me to promote my Page”.  The defendant explained that the texts on Facebook were just some sarcastic remarks. I disagree with that because it can be seen from the context of the Facebook contents that at that time the defendant was obviously hoping to increase his own popularity by making the disclosures.

83. When interviewed by the media, the defendant did mention demanding an explanation from Ching about the incident. However, the thrust of his disclosures has been what he did or what he knew (i.e. including the fact that he was the complainant; that he had been invited to the ICAC to give a statement; that he was giving a statement; that he learnt that the ICAC had launched an investigation), which had nothing to do with “public interest” at all.

84. I am sure that the purpose of his disclosures was to make use of the opportunity to increase his popularity and that was by no means for the sake of “public interest”.

Were the defendant’s “disclosures” (with) a “reasonable excuse”(?)

85. Whether or not it was clear to the defendant that he was not allowed to make the disclosures and whether or not he had an honest belief that the disclosures were in the public interest or he was just hoping to increase his popularity, what I must consider, at the end of the day, is whether “the disclosures” by the defendant fall within the scope of “reasonable excuse” under Section 30 of the Prevention of Bribery Ordinance.

86. The defendant explained that he made the disclosures in order to effectively monitor the government in handling officials suspected of abuse of power and to have the ICAC come under the supervision of the media.

87. According to the facts of this case, the ICAC, having received a report from the defendant, decided to launch an investigation into Ching’s flat-swap deal and informed the defendant of the same. In other words, what the defendant was told at that time was neither that the ICAC was considering launching an investigation nor that the ICAC was not going to investigate it, but that the ICAC would launch an investigation. I am of the view that as the defendant already knew that the ICAC would launch an investigation, there was no reason at all to suspect that there was any misconduct on the part of the ICAC in the investigation of the case.

88. In fact, there was also no evidence in this case to show that there had been any unlawful activity, abuse of power, serious neglect of duty or other serious misconduct by the ICAC in the investigation of Ching’s flat-swap deal.

89. The disclosures by the defendant included that (1) the ICAC had launched an investigation into Ching’s flat-swap deal; (2) he had been invited to the ICAC to give a statement; and (3) through social media (i.e. FB account and TW account), he, in both text and pictures, showed that he was giving a statement at the ICAC.

90. I agree with the submissions by Ms Susanna Ku, counsel for the prosecution, that as far as the public were concerned, such investigation details had no “public interest” at all, let alone any significant “public interest”.

91. The defendant contended that before he went to the ICAC to make a report, the media like “HK01” had already reported Ching’s flat-swap deal. The defendant only relied on the media’s public coverage to make the report and was unable to provide to the ICAC further information for the purpose of investigation. Therefore, the reputation of all the suspected parties in the flat-swap deal had been tarnished long ago, and they would not have been further prejudiced because of the defendant’s disclosures.

92. However, I am of the view that whether the defendant’s disclosures would have any effect on Ching’s reputation is by no means an element of the charge, and that the defendant’s subjective view that his disclosures had no effect on Ching’s reputation has nothing to do with this case, either.

93. Furthermore, even if the defendant’s disclosures had no effect on Ching’s reputation, and he was unable to provide any information useful for the investigation, his disclosures to the public (or a section of the public) that he went to the ICAC to make a report; that the ICAC had launched an investigation; that he had been invited to the ICAC to give a witness statement and that he was giving a witness statement at the ICAC, etc. would, from an objective point of view, probably have alerted Ching, allowing her to get prepared. I cannot see why the public needed to know such investigation details as the defendant was the complainant and his being invited to the ICAC to give a witness statement, etc.

94. I am sure that the defendant’s disclosures had nothing to do with public interest and did not fall within the scope of “reasonable excuse” under Section 30 of the Prevention of Bribery Ordinance.”

17.The magistrate did not accept that the appellant had any “reasonable excuse” to make the disclosures, the subject of the three charges, and convicted him of the three charges accordingly.

Grounds of appeal

18.The appellant raised only one ground of appeal: the magistrate erred in considering the question of “reasonable excuse” in this case.

19.The appellant considered that the magistrate was wrong in holding that he made the disclosures merely “increase his popularity” and had failed to give due consideration to the fact that disclosures for the sake of “increasing popularity” and disclosures in the “public interest” were not mutually exclusive.

20.The appellant emphasised that he was an active political figure and was bound to speak on social issues in this capacity. The social repercussions arising from remarks about social issues by an obscure member of the public must be much less than those arising from those by a well-known political figure. Increasing popularity could help a political figure to get attention and recognition, thereby gaining public support in following up on issues. The appellant contended that increasing popularity would not be the only reason for political parties and the media to make disclosures. Therefore, disclosures for the sake of “raising popularity” and disclosures in the “public interest” were not mutually exclusive.

21.The disclosures the appellant made in the present case were directed at the “flat-swap” incident and the public confidence in the civil service. His complaint letter was issued in the name of the “League of Social Democrats” and was about the suspected transfer of benefits on the part of the officials involved in the case.  The appellant quoted what he said during a radio interview that he made the disclosures in order to exert pressure on the ICAC, demanding that the ICAC act with impartiality and thoroughly investigate the incident. The appellant emphasised that he had not mentioned himself and there had been no evidence to show that his move was not (sic) solely to increase his own popularity.

22.The appellant cited the case of R v Ming Pao Newspaper Ltd & Ors[2] and contended that if the defendant honestly believed that the purpose of his disclosing the investigation details was to reveal evidence or unlawful acts, then a “reasonable excuse” would be a reason for his not being prosecuted. If the disclosed information involved abuse of power or unlawful acts, then “public interest” could be a basis for a “reasonable excuse”.

23.The appellant submitted that he had produced evidence through his “remarks” to the media. He sought to rely on “public interest” as a “reasonable excuse” and the prosecution must rebut the evidence in order to prove that it had been wholly implausible that he made such disclosures in the “public interest”.

24.Citing the Court of Final Appeal case of Cheng & Another v Tse Wai Chun[3], which is a “defamation” case, the appellant submitted that this Court may interpret the legal principles in relation to the defence of fair comment in defamation law.

25.The appellant specifically cited that case to point out that in making public comments, political figures often had various motives, some of which might even be for promoting themselves, increasing their popularity, and these were often regarded as ulterior motives. However, even with these motives, the defence of fair comment could not be ruled out or struck out. 

26.The appellant submitted that the above principle is applicable in the present case. Where the evidence showed that apart from increasing his own popularity, the appellant’s move also involved “public interest”, the magistrate also had to consider the evidence as regards “public interest”. However, the magistrate only focused on the self-mocking remarks on the appellant’s Facebook account and wrongly ruled out the possibility and co-existence of the defence of “public interest”.

27.The appellant criticised the magistrate for ruling out the possibility of disclosure in the “public interest” on the basis of his remarks on his Facebook account, in particular, (those remarks) on the appellant’s Facebook account that appeared after he had made the disclosures in Charges 1 and 2. The magistrate erred in taking into account subsequent events in respect of things that had already happened.

28.And the appellant suggested that he only made “self-promotion” remarks on Facebook and did not make the same remarks on other social media like Twitter or Instagram. If it had been the case that he wanted to increase his popularity, he should have promoted himself repeatedly across all social media.  Furthermore, regarding the remarks on Facebook, even looking at them in context, they were self-mockery. Since there were “a thousand people” reminding the appellant, his popularity was not low.

29.The appellant contended that in holding that the information disclosed by the appellant did not involve “public interest”, the magistrate had failed to properly consider that even though the information was not directly related to the abuse of power or transfer of benefits by officials, the fact that he made known to the public such information clearly showed that being a body representing part of the public opinion, they were concerned with those prosecutions and followed up on them in a serious and active manner and they also demanded that the officials in power be accountable to the community. Prior to the statement-taking, the appellant explained to the media that being a complainant, he was required to give a statement as a matter of procedure. The focus was on his appeal to the officials involved for a public explanation of the incident, thereby restoring our confidence in the civil service.  The appellant’s main message had never been “Please note that the complainant is Ng Man Yuen, Avery”.

30.The appellant submitted that with the ins and outs of the whole incident taken into consideration, the appellant’s acts were centred on the “flat-swap” allegation and he hoped that the ICAC would deal with it impartially. He did not emphasise himself in what he told the media. What he emphasised was that he had complained about the CE and high-ranking officials in the past, but those complaints all ended up in nothing.

31.The appellant cited in their submissions the authority of HKSAR v Fong Kwok Shan Christine[4],which recognised what was emphasised in the case of HKSAR v Lam Kwong Wai[5]:

“63. The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.”

32.The appellant submitted that the contents and purpose of Section 30(1) are:

(1)  the section is not a bribery offence but a supplementary provision which provides for the protection of ICAC investigations;

(2)  the purpose of the provision is to avoid alerting a suspect, thereby resulting in possible destruction of evidence or taking of action which hinders the ICAC investigation by a witness. A secondary purpose is to protect the reputation of the suspect;

(3)  in a society of free expression, freedom of speech is a fundamental right and Section 30(1) no doubt limits freedom of speech and so a generous approach should be adopted to the interpretation of Section 30(1).

33.The appellant contended that in considering the question of “reasonable excuse”, the court must have regard to the above purposes. Section 30(1) is not a gagging law which absolutely bans the disclosure of ICAC investigations. Freedom of speech is equally important. The importance of freedom of speech lies in its promotion of transparency and accountability of the government.  Therefore, when considering the question of “reasonable excuse”, the court must take into account the specific facts of the case and the various purposes to be served while striking a balance in respect of the various purposes in operation in the circumstances.

34.The appellant submitted that the starting point is not one of banning disclosures. The starting point is that everyone has freedom of speech. Such right is only restricted within the narrow scope set out in Section 30(1). However, such a restriction must be interpreted using a narrow approach and subject to the defence of “reasonable excuse”. The consideration made must be in conformity with a free and open society that respects the values of freedom of speech. The restriction on freedom of speech cannot go beyond the legitimate purpose required under Section 30(1).

35.The appellant contended that the present case involved several allegations against the conduct of high-ranking government officials. How the government was going to react was a matter of public interest. Generally, the natural response was whether law enforcement agencies would investigate if any criminal offences were involved. Thus, whether law enforcement agencies (the ICAC in the present case) would carry out investigations and whether they would carry out serious investigations involved the public interest.

36.The appellant had complained about other high-ranking officials. He noted that those complaints had not been taken seriously. Therefore, his disclosures of the ICAC investigation were in the public interest. His disclosures showed the public that the ICAC would handle the complaint in a serious manner, had invited the appellant to the ICAC to give a statement and would not do something simply for the sake of disposing of it. Therefore, both Charges 1 and 2 were concerned with the same issue: it was shown that the ICAC would carry out a serious investigation.

37.As regards Charge 3, the appellant frankly stated that apart from pointing out that he had already had an interview with the ICAC, he did not say anything else. This Court may take into account the appellant’s previous acts in Charges 1 and 2, and find that he made the disclosure on Facebook in the “public interest”.  If this Court does not accept such submissions, the appellant would have committed Charge 3 only. He had the defence of “reasonable excuse” in respect of Charges 1 and 2.

38.The appellant also emphasised that there was one important point in this case, namely the appellant’s disclosures did not prejudice the investigation by the ICAC. In the present case, the subject of the investigation was already a well-known fact, which had been extensively covered by the media. Before lodging a complaint with the ICAC, the appellant had already told the public that he was going there to make a complaint, which did not contravene Section 30(1). The appellant reiterated his reason for the disclosures and that he could not have been able to provide the ICAC with information other than that which was already known to the public.

39.Therefore, if the person being investigated was alerted which might impede the investigation, then such a situation would have had happened already when the appellant made it known that he would go to the ICAC to lodge a complaint.  Although the person being investigated, having learnt that the ICAC decided to launch an investigation, might be more active in taking protective measures (there was no evidence in this respect in the present case), this Court must strike a balance between this argument and the following: knowing that the ICAC would not end up leaving such legitimate public interest unsettled – in particular where high-ranking government officials were involved, and in the public domain, there was not much information that was not known to the public.

40.In respect of the case of Ming Pao Newspaper Ltd, the appellant contended that the issue in question was whether a disclosure under Section 30 without requiring to show whether prejudice would be caused to ICAC investigations was consistent with Article 16 of the Bill of Rights. In this context, the Privy Council pointed out that for an offence contrary to Section 30, it was not necessary to show that there was any chance that prejudice would be caused to an investigation. However, it does not mean that in considering whether an excuse was a reasonable one, the court could not consider the scope that there was no chance that prejudice would be caused to an investigation.

41.The appellant suggested that whether an excuse is reasonable or not must be judged from the facts of the case. If the facts show that there is no prejudice to the investigation, then the purpose of Section 30 is not undermined and the restriction on freedom of speech should not go beyond the purpose for which Section 30 is enacted.

42.The appellant submitted that there were sufficient grounds in the present case to show that the appellant had a “reasonable excuse” for making the disclosures.

Reply by the respondent

43.The respondent contended that in holding that the appellant made the disclosures to “increase his popularity” instead of in the public interest, the magistrate had given sufficient consideration to all the relevant evidence in the present case based on the principles enunciated in the case of Ho Loy.

44.In the case of Ho Loy, the Court of Final Appeal pointed out that in considering the question of “reasonable excuse”, the courts should first consider whether the alleged excuse is genuine and then assess whether that excuse is reasonable or not on an objective standard based on the facts of the case[6].

45.The respondent submitted that the appellant’s excuse was not genuine. Unlike what the appellant said that the magistrate was of the view that “raising one’s popularity” and “in the public interest” could not co-exist, the respondent considered otherwise. The magistrate was justified in holding that the appellant made the disclosures purely to increase his popularity. The reasons stated by the respondent are as follows:

(1)  First, the magistrate clearly knew that the appellant was the chairman of a political party which had contact with the media from time to time and would comment on current affairs. Also, at the time of the offence, the appellant was of clear record, so his evidence was more credible and he was less likely to commit crimes;

(2)  The ICAC officers had reminded the appellant a number of times that he could not make any disclosure and the appellant indicated that he understood.  And the witness statement which the appellant had signed in confirmation also clearly recorded that he had been reminded not to make any disclosure. Therefore, the magistrate considered that there was no reason for the appellant not being aware of the relevant statutory restriction. The appellant’s argument that he did not recall whether the ICAC officers had reminded him not to make any disclosure was obviously neither full nor frank;

(3)  While the magistrate accepted that the appellant, during an interview with the media, did ask Ching to account for the matter, he considered that the thrust of the appellant’s disclosures had been what he did or what he knew, namely:  

-he was the complainant;

-he knew that the ICAC had launched an investigation (“have just been notified by the ICAC....”);

-he was invited to the ICAC to give a statement;

-he was giving a statement at the ICAC (“giving a statement at the ICAC”, “sitting idly waiting for the investigator to write a statement of a thousand words” and a selfie with the ICAC logo as the background and the caption “Very fricking boring. Have waited for a fricking long time”),

The appellant was prosecuted for having disclosed such information, which had nothing to do with “public interest” at all;

(4)  Regarding the appellant’s explanation that what he published on Facebook had been “mockery” only, the magistrate had sufficiently considered the context of Facebook and heard and seen the demeanour of the appellant giving evidence before holding that the aim of the appellant had been to increase his own popularity by disclosing the matter; and

(5)  The respondent considered that the appellant could have urged Ching to account for the matter in his capacity as a political figure without having to disclose any information or progress of the ICAC investigation. The appellant argued that his move had been to urge the ICAC to speed up the investigation. However, he repeatedly disclosed the information and progress of the ICAC investigation in a high-profile manner. Undoubtedly, such disclosures would cause prejudice to the ICAC investigation, which went against “public interest”. In fact, the appellant, having disclosed the information in such a high-profile manner, did receive attention and wide coverage from the media and he had succeeded in increasing his popularity.

46.Having looked at all the evidence, including all the vital points in the appellant’s skeleton submissions – namely the appellant’s background, the contents of the information he disclosed and the way he disclosed them and the evidence of the appellant, the magistrate held that the appellant made the disclosures purely to increase his popularity instead of in the public interest. It was a fact found in relation to the appellant’s motive to make disclosures.

47.The respondent contended that the magistrate, having ruled on the real motive for the appellant’s disclosures, further assessed, on an objective standard in accordance with the case of Ho Loy, that the excuse put forward by the appellant could not constitute a “reasonable excuse” under Section 30(3) of the Prevention of Bribery Ordinance:

(1)  The crux of the offences with which the appellant was charged was the information he disclosed to others, namely, that the ICAC had launched an investigation; that he was invited to the ICAC to give a statement; and that, through social media he stated, in both text and pictures, that he was giving a statement at the ICAC.  The investigation details disclosed by the appellant did not reveal any abuse of power or unlawful acts by anyone;

(2)  Further, the appellant was fully aware that the ICAC had launched an investigation, and not that they were considering whether to investigate or not or had decided not to investigate. There was no reason at all for him to suspect that there was misconduct or any unlawful activity, abuse of power, serious neglect of duty or other serious misconduct by the ICAC during the investigation of the case;

(3)  The appellant argued that what he disclosed in the present case was only peripheral information and no investigation details were involved. In this regard, the magistrate clearly pointed out that the report by “HK01” at that time did not say that the ICAC “had launched an investigation” into the matter and that other people only learnt of such investigation details after the appellant had made the disclosure on Facebook;

(4)  Regarding the appellant’s assertion that the disclosure would not affect the reputation of the persons in question or the investigation by the ICAC, the magistrate rightly pointed out that whether the disclosure affect the reputation of the persons in question was not an element of the offence;

(5)  In this regard, the Privy Council, in the case of Ming Pao Newspapers Limited and Others and Attorney General of Hong Kong (Privy Council Appeal No.8 of 1996)[7], pointed out that in order for Section 30 to be effective, it cannot include the factor of “likely to prejudice the investigation” nor have regard to the subjective state of mind of the discloser (see Page 247G-I)[8]; and

(6)  From an objective point of view, the investigation details disclosed by the appellant had no “public interest” at all.  The public did not need to know about such details and what the appellant did no doubt “alerted” Ching, which was very likely to cause prejudice to the criminal investigations by the ICAC; and this was against the “public interest”. 

48.The respondent said that “fair comment” is a defence in defamation cases in civil proceedings. The case of Cheng & Anor v Tse Wai Chun[9] cited by the appellant is not applicable to criminal cases.

49.In the case of Ming Pao Newspapers Limited and Others and Attorney General of Hong Kong (Privy Council Appeal No.8 of 1996) (Page 247B-E), the Privy Council held that Section 30 of the Prevention of Bribery Ordinance is consistent with the right of freedom to express and impart information under Article 16 of the Hong Kong Bill of Rights. Even if the courts should interpret narrowly the restrictions on the freedom to express and impart information, the appellant should still have been required to exercise this right in a legitimate way.

50.It was the appellant’s evidence that he would still have made the disclosures to the public whether or not he had been reminded of the restriction of not disclosing the ICAC investigation.  The respondent considered that the appellant knowingly disclosed information as regards the ICAC investigation, which was beyond the statutory restriction and must therefore bear the corresponding consequences. The cases of Fong Kwok Shan Christine and Cheng & Anor v Tse Wai Chun cited by the appellant were not applicable.

51.To sum up, the magistrate did not err in considering the defence put forward by the appellant. Should the defence of “public interest” raised by the appellant have been successful, anyone, on the pretext of disclosing suspected unlawful activities and monitoring the ICAC, etc., could disclose ICAC investigations and Section 30 of the Prevention of Bribery Ordinance would become otiose.

52.In view of the facts and the evidence of the present case, including the background against which the appellant made the disclosures, the nature of the information he disclosed and the way he disclosed it, the magistrate was justified in holding that the excuse of “public interest” raised by the appellant could not constitute a “reasonable excuse”. The verdict was consistent with the evidence of the present case and was reasonable. The ground of appeal against convictions should fail.

The relevant legislation

53.Section 30(1) and (3) of the Prevention of Bribery Ordinance provide that:

“(1) Any person who knowing or suspecting that an investigation in respect of an offence alleged or suspected to have been committed under Part II is taking place, without lawful authority or reasonable excuse, discloses to —

(a)    ......; or

(b)   the public, a section of the public or any particular person the identity of the subject person or the fact that the subject person is so subject or any details of such investigation,

shall be guilty of an offence and shall be liable on conviction to a fine of $20,000 and to imprisonment for 1 year.

......

(3)   Without affecting the generality of the expression reasonable excuse in subsection (1) a person has a reasonable excuse as regards disclosure of any of the descriptions mentioned in that subsection if, but only to the extent that, the disclosure reveals —

(a)   any unlawful activity, abuse of power, serious neglect of duty, or other serious misconduct by the Commissioner, the Deputy Commissioner or any officer of the Commission; or

(b)   a serious threat to public order or to the security of Hong Kong or to the health or safety of the public.”

My consideration in respect of the convictions

54.First of all, it is not in dispute that the appellant did make the disclosures in question. The crux of the present case is whether the appellant had any “reasonable excuse” to make the disclosures.  On “reasonable excuse”, what I have to consider is whether there was evidence to show that the appellant made the disclosures in the “public interest”, and whether the prosecution has proved that the appellant made the disclosures without “reasonable excuse”.

55.I have considered the arguments in the appellant’s submissions and agree that Section 30(1)(b) should be interpreted narrowly. I also agree that disclosures “to increase one’s own popularity” and disclosures “in the public interest” can co-exist.

56.I also accept the principles set out in the case of Ho Loy.  As to whether the appellant’s excuse was genuine, I accept the respondent’s submissions that the magistrate was justified in holding that the appellant had made the disclosures purely to increase his popularity.

57.That Ching and her husband and a businessperson were suspected of having conflicts of interest and deferred benefits was first reported by a local weekly magazine (HK01) on 1 April 2016.  The following day (2 April), the appellant went to the ICAC to lodge a complaint. When testifying, the appellant emphasised that he had been to the ICAC to report various high-ranking government officials in the past and there had been media coverage of it. He quoted the contents of what he said in a radio interview and emphasised that he had made the disclosures with a view to compelling the ICAC to conduct a serious investigation and to account to the public. As pointed out by the magistrate[10], the appellant was already aware that the ICAC would launch an investigation, and so there was no reason at all for him to suspect the ICAC of misconduct in the investigation of the case. Although the appellant did not mention his own name on every occasion possible, common sense would suggest that the media, when reporting his disclosures, must have mentioned his name and capacity. Therefore, the fact that the appellant did not mention his name does not mean that it was not for increasing his popularity that he made the disclosures.

58.Moreover, I cannot see any connection at all between the public interest and the appellant inviting the media to take photos at the ICAC office where he was going to give a statement and his uploading on Facebook a selfie taken when he was sitting inside the ICAC office. It was obvious that what he did was to increase his popularity.

59.I do not think that the magistrate, while according particular weight to the Facebook incident on 6 April, neglected other reasons. Even if what the appellant said on Facebook had been self-mockery, the way he conducted himself when he made the disclosures from the beginning showed that he did what he did to increase his popularity.

60.I agree with the magistrate’s finding: “The appellant’s disclosures had nothing to do with public interest, and did not fall within the scope of ‘reasonable excuse’ under Section 30.” I also consider that the evidence in the present case did not support or show that the appellant made the disclosures genuinely in the “public interest”. Since the appellant did not make the disclosures in the public interest, the appellant’s arguments that he made the disclosures by reasons of “public interest” and “increasing his own popularity” (in co-existence), regard had to be had of “freedom of speech” when considering the question of “reasonable excuse” under Section 30(1) and such restriction should be interpreted narrowly, etc. are not applicable in the present case. The argument of “fair comment” in defamation cases in civil proceedings put forward by the appellant is also not applicable in the present case.  

61.The appellant contended that his disclosures caused no prejudice to the ICAC investigation. I am of the view that if the evidence showed that the investigation was in fact prejudiced as a result of the disclosures, this must be taken into account in sentencing.  However, the prosecution was not required to prove whether the appellant’s disclosures had prejudiced the investigation.

62.In the present case, there was indeed no evidence to prove whether the appellant’s disclosures had prejudiced the investigation. However, the legislative purpose is to prevent persons being investigated from knowing that they are under investigation thereby taking precautions, destroying evidence or obstructing investigations. The persons involved in the “flat-swap” incident should have been aware of the media coverage and so there was no question of their “being alerted”. However, when the persons involved became aware that the ICAC had launched an investigation, they might take action to obstruct the investigation.  Therefore, it was necessary to keep it confidential and the fact that they were under investigation should not be disclosed.

63.I do not agree with the appellant’s contention that this Court should have had regard to the following when considering this matter:

(1)  “the ICAC would not end up leaving such legitimate public interest unsettled”; and

(2)  “in the public domain, there was not much information that was not known to the public”.

64.In respect of (1) above, there was no basis for the appellant to believe that the ICAC, “having launched an investigation”, would “rush it through perfunctorily”, thereby rendering it necessary for him to make disclosures so that the ICAC would not “end up leaving the matter unsettled”. In respect of (2) above, although in the public domain, there was not much information that was not known to the public, it does not mean that there was no problem in the appellant making the disclosures.

Decision

65.For the above reasons, I dismiss the appellant’s appeal against convictions.

The magistrate’s reasons for sentence

66.In his Reasons for Verdict and Sentence, the magistrate pointed out that:

“96. The defendant, aged 41, is the chairman of a political party. He took part in his party’s activities. At the time of the offences, he was of clear record.

97. There is no sentencing guideline for this type of case. Moreover, the facts of each case vary and naturally the sentences differ. According to the prosecution and the defence, community service orders have been imposed for this type of case.   

98. The case of HKSAR v. Lee Yum Sang, Vasco[11] is the only authority available for this type of case. The facts of that case were that the defendant lodged a complaint with the ICAC against his superior. The defendant, having learnt that the ICAC was going to interview his superior, disclosed to the media by fax that his superior was under ICAC investigation. The defendant undermined the interests of the person being investigated (i.e. the defendant’s superior). The High Court judge agreed to take 4 months’ imprisonment as the basis for sentencing. However, that was reduced by 1 month because the victim had forgiven the defendant.  That case clearly pointed out that the protection of secrecy in investigations by law enforcement agencies was the primary concern of the legislation and the protection of the interests of the persons being investigated was of secondary importance.

99. There are similarities between that case and the present case, namely both defendants were a first offender and both were convicted after trial; but neither of the two cases had any evidence to show that prejudice had been caused to the ICAC investigations. Mr Shek submitted that unlike the present case, the defendant in the case of Lee Yum Sang, out of personal grudges, committed the crime with premeditation and malice. However, the defendant in the present case, despite repeated reminders that no disclosure should be made, knowingly committed the crime to increase his popularity.  Therefore, I am of the view that the circumstances of the present case would not be less severe when compared to the case of Lee Yum Sang.

100. Having considered all the circumstances, I am of the view that the appropriate starting point for each of the charges in the present case should be 4 months’ imprisonment. A fine is not appropriate. However, for cases of this kind, where appropriate, in my view, they may be dealt with by way of community service orders.  Therefore, I called for such a report.  

101. In mitigation, Mr Shek hoped that I would accept the recommendations of the community service order suitability report and sentence the defendant to a community service order.

102. The community service order suitability report showed that the defendant was, to a certain extent, remorseful. In particular, it was stated in paragraph 4 that “the defendant basically accepted the judge’s verdict”.  However, I didn’t quite understand whether what the defendant had told the probation officer meant that he genuinely accepted my verdict. Thus, I asked Mr Shek to clarify this. After that, Mr Shek submitted that what the defendant meant to say was in fact: “The defendant accepts the judge’s verdict with respect”.

103. After further clarification, the defendant did not show his agreement to the key finding in the present case, i.e. he made the disclosures to increase his popularity.

104. The defendant pleaded not guilty. From the beginning when it was disputed whether it was a “selective” prosecution to the end of the trial, the defendant had no sense of remorse at all and never admitted that he committed the offences to increase his popularity. Having considered all the circumstances, including whether the defendant is genuinely remorseful, I am of the view that it would not be appropriate to deal with the present case by way of a community service order.

105. I note that at the trial, the defendant agreed to a major part of the prosecution case and he also agreed that he did make the disclosures as alleged in the charges, which saved a lot of the court’s time indeed. However, on a closer look, as regards the facts to which the defendant agreed, they were, in fact, difficult to dispute.

106. I have also taken into consideration what Mr Shek said that if the defendant were to be sentenced to an imprisonment term of more than 3 months, then it would be difficult for him to run for elections. I accept that the defendant intended to run for elections.  However, I am of the view that the defendant should be held responsible for what he has done. Although the final sentence will render him unable to run for elections in the near future, it would not be appropriate to reduce the sentence which would have been otherwise appropriate.  The defendant chose to commit the offences and must shoulder the consequences.

107. The defendant, in making the disclosures, did not make any economic gains. However, in fact, he knowingly committed the offences in the hope of increasing his popularity. I am of the view that the appropriate starting point for each of the charges in the present case is 4 months’ imprisonment. I cannot see any reason to reduce the sentences and I cannot find any reason to suspend the sentences to be imposed, either.

108. For the 3 charges, I impose a sentence of 4 months’ imprisonment each, all to run concurrently.”

Grounds of appeal against sentences

67.The appellant raised two grounds of appeal:

(1)    4 months’ imprisonment is manifestly excessive; and

(2)    the magistrate erred in principle in refusing to make a community service order.

Ground 1

68.The appellant contended that the magistrate failed to have sufficient regard to the differences between the case of Lee Yum Sang he had referred to and the present case. In that case, the defendant conspired with another to commit the crime with premeditation. The matters under investigation did not involve public interest. However, the defendant anonymously notified the media that his superior was being investigated and the disclosure was made out of personal grudges, maliciously disclosing the identity of the subject person under investigation. If he invited the media to take photos of his superior who was on the way to the ICAC to give a statement, it was highly likely that his intention was to cause trouble to his superior. He did not show any remorse. The Court of Appeal considered that 4 months’ imprisonment was appropriate.  However, in view of the fact that the victim had forgiven the defendant, the Court of Appeal reduced the sentence to 3 months’ imprisonment.

69.The appellant suggested that the case of Lee Yum Sang did not lay down any sentencing guidelines and did not specify that for this offence, a custodial sentence was inevitable even in the case of a first offender. There was a huge difference between the facts of that case and those of the present case. The magistrate only followed the case of Lee Yum Sang blindly and 4 months’ imprisonment was manifestly excessive.

Ground 2

70.The appellant emphasised that the community service order (report) showed that the appellant was “to a certain extent remorseful” and considered it appropriate to sentence the appellant to a community service order of between 200 and 240 hours. However, the magistrate was of the view that since the defendant pleaded not guilty and disputed whether it was a “selective” prosecution from the beginning to the end of the trial, the defendant had no sense of remorse whatsoever and never admitted that he committed the offences to raise his popularity. Having considered all the circumstances, including whether the appellant was genuinely remorseful, the magistrate considered it inappropriate to deal with the case by way of a community service order.

71.The appellant cited the case of HKSAR v Leung Hiu Yeung[12], suggesting that the Court of Final Appeal had clarified once again that the courts would normally expect genuine remorse to be present before a community service order was imposed and yet genuine remorse was not an essential requisite.

72.The appellant contended that he basically did not dispute the prosecution case and that the crux of the trial was whether the appellant could use “public interest” as a “reasonable excuse”. It necessitated the appellant pleading not guilty to allow the court to consider through the process of trial whether his “reasonable excuse” stood. Therefore, the magistrate gravely erred in principle in considering that the appellant “had no sense of remorse whatsoever” by pleading not guilty.

73.The appellant contended that where, at the beginning of the trial, he argued whether it was a “selective” prosecution, the argument was about whether the Department of Justice’s decision to prosecute him had been a legitimate and appropriate one and whether it had been an abuse of the judicial process. To allow a defendant to challenge the legality of a prosecution is part of the rights of a defendant in a society based on the rule of law. What was in dispute was the issue of procedural justice and not whether the appellant did the acts as alleged by the prosecution. The application for a permanent stay of proceedings before trial did not involve the issue of remorse at all. The magistrate erred in principle in taking this factor into consideration and then refusing to impose a community service order.

74.When hearing the submissions in mitigation, the magistrate on a number of occasions challenged whether the appellant accepted or agreed to his finding on “whether the appellant made the disclosures to raise his popularity”, which was specifically mentioned in the Reasons for Sentence.

75.The appellant submitted that the magistrate’s approach was inappropriate. The appellant’s stance was that he made the disclosures in the public interest. And there was evidence in the present case that pointed to such a stance. Although the magistrate was of the view that the appellant made the disclosures only to raise his popularity, which was without any evidential basis, the magistrate could not force the appellant to agree at the time of mitigation that his finding must have been correct. Whether the appellant considered his finding to be correct or not could not have been a reason for finding that the appellant had no sense of remorse whatsoever.

76.According to the community service order report, the appellant himself accepted the magistrate’s verdict and further indicated that he accepted the magistrate’s verdict with respect. As such, there was no need at all for the magistrate to press on step by step and have the appellant agree to all his findings of fact. The magistrate also erred in principle in using this point to support the finding that the appellant had no sense of remorse whatsoever.

77.The appellant’s acceptance of the verdict does not mean that he must accept all the findings. The appellant did not completely accept that the sole motive of his disclosures was to increase his popularity. However, his non-acceptance of this point and his insistence that he made the disclosures only in the public interest, again, do not mean that the appellant had no sense of remorse.

Respondent’s reply

78.The respondent pointed out that the maximum sentence for the offence in question is 1 year’s imprisonment. The magistrate rightly pointed out that there are no sentencing guidelines for cases of this kind and that the only reference available is the case of Lee Yum Sang. The magistrate was of the view that the court should first consider an appropriate starting point and then decide whether any reduction should be made. The respondent considered that the magistrate was correct in taking 4 months’ imprisonment as the appropriate starting point on each of the charges. The reasons put forward by the respondent are as follows:

(1)  The offence under Section 30 of the Prevention of Bribery Ordinance is a serious crime. Given the insidious nature of corrupt offences, ICAC officers face many difficulties in investigations. The primary purpose of Section 30(1)(b) is to protect the secrecy of law enforcement agencies while protecting the interests of those being investigated comes second;

(2)  Having referred to the sentence in the case of Lee Yum Sang, the magistrate held that the appropriate starting point should be 4 months’ imprisonment. The magistrate rightly pointed out that the defendants in both cases were a first offender, that they were both convicted after trial and that there was no evidence to show that prejudice had been caused to the ICAC investigations;

(3)  The magistrate was fully aware that in the case of Lee Yum Sang, the defendant, out of personal grudges, maliciously disclosed the matter by certain means in order to cause prejudice to the victim’s reputation. On the other hand, the appellant in the present case disclosed the matter to the public in a high-profile manner, including stating, in both text and pictures, on Facebook that he was giving a statement. Despite repeated reminders that he could not make any disclosures, the appellant knowingly committed the offence repeatedly, for the sake of increasing his popularity, thereby causing prejudice to the reputation of other persons.  Therefore, the magistrate considered that the circumstances in the present case would not be less severe when compared to the case of Lee Yum Sang:  

(i)    For Charge 1, the appellant, less than an hour after he was notified by the ICAC that they had launched an investigation and was reminded of the importance of secrecy, made the matter public on social media;

(ii)   For Charge 2, as the time and venue for the interview was already disclosed, ICAC officers immediately changed the time and venue for the interview with the appellant, and specifically reminded him twice of the importance of secrecy.  The appellant ignored such warnings in spite of saying that he understood, and immediately notified the media again about the interview; and

(iii)  For Charge 3, before giving a statement at the ICAC, the appellant told the media that he would be giving a statement as a complainant and at the time of giving a statement, he even stated on two occasions, in both text and pictures, on social media, namely Facebook, Twitter and Instagram, that he was giving a statement at the ICAC.

(4)  Moreover, the defendant in the case of Lee Yum Sang only conspired to commit one count of “offence to disclose identity, etc. of persons being investigated” while the appellant in the present case committed three offences with the duration of the first offence being longer; and

(5)  The defence suggested that the incident had been reported by the media and the information against Ching and the relevant persons had been made public.  However, the magistrate rightly pointed out that had it not been the case that the appellant made the disclosures, the media would not have known the information that formed the subject of the charges – the details such as the ICAC had already “launched an investigation of the incident”, the appellant was the complainant, and the appellant was giving a statement.

79.The respondent submitted that the magistrate had fully considered and assessed the nature and gravity of the charges, the facts of the offences committed, including the appellant’s motive in making the disclosures being to “increase his popularity”; he still made the disclosures wantonly in spite of repeated reminders by the ICAC officers; and what the appellant disclosed and how. In the absence of any mitigating factors, the magistrate sentenced him to 4 months’ imprisonment. The offences committed by the appellant were serious in nature. With the purposes of punishment and deterrence in mind, 4 months’ imprisonment was in no way excessive, let alone manifestly excessive.  

80.The appellant contended that while the community service order report recommended that the appellant was suitable to be sentenced to a community service order of between 200 and 240 hours, the magistrate erred in principle in refusing to make a community service order by finding that the appellant had “no sense of remorse whatsoever” on three grounds, namely the appellant “pleaded not guilty”, “applied for a permanent stay of proceedings before trial” and “did not agree to the verdict”.

81.The respondent pointed out that in the case of HKSAR v Wong Chi Fung[13], the Court of Appeal of the High Court clearly pointed out that although not all six factors identified in R v Brown[14]have to be present when the court is considering the suitability of a community service order, the court generally considers that genuine remorse is a prerequisite for making a community service order, and that is usually demonstrated by way of a plea of guilty. If a defendant is not genuinely remorseful, the court generally would refuse to make a community service order. As regards the meaning of “genuine remorse”, the Court of Appeal said:

“147. Genuine remorse means that the offender acknowledges that he has committed an offence and shows remorse for what he has done and caused. Thus a genuinely remorseful person will normally plead guilty and explicitly accept his legal responsibility. It follows that, in deciding whether the offender is genuinely remorseful, one of the major factors that the court would look for is whether he has entered a timely plea. If an offender pleads not guilty, and expresses his remorse only after he is tried and convicted, the court would carefully examine such claim. Generally speaking:

(1)  Although the court will not reject his indication of remorse simply because he has contested his trial, neither will the court easily accept that he is genuinely remorseful for what he has done.

(2)  If the offender considers that it is his right under “the presumption of innocence” to ask the prosecution to prove its case, or he elects to plead not guilty because he disputes that the conduct he has admitted constitutes an offence, he is of course entitled to do so. If he is convicted after trial, the court will not enhance his sentence because of his conduct of his defence. However, it does not mean that the court must necessarily accept that although he has conducted his defence in such a manner, he is genuinely remorseful.

(3)  If the offender considers that his prosecution is, in itself, not justified (as is the case of the 1^st and 3^rd respondents who consider that charging them with unlawful assembly violated their human rights) and maintains that particular view even upon conviction, that would be a clear indication that he is still refusing to accept that what he has done is unlawful. In that case, the court will not accept his claim of genuine remorse, for such a claim contradicts his stance that the prosecution was unjustified.

(4)  If the offender insists that he is innocent after being convicted, or expresses firmly that he has not done anything wrong, it is a further indication that he has no genuine remorse; even he says he is willing to accept legal responsibility and punishment, it cannot change the fact that he has no genuine remorse for the offence he has committed.

148. Showing respect to the court does not necessarily demonstrate genuine remorse because all parties before the court, be it the prosecution or the defence, have to respect the court and comply with the court’s procedure. They do that as a matter of course and it may have nothing to do with remorse. The offender cannot be considered genuinely remorseful by merely saying that he respects the court if he shows no genuine remorse in other respects.”

82.Although the sentences of imprisonment imposed by the Court of Appeal in that case were eventually quashed by the Court of Final Appeal, the principles as regards community service orders and “genuine remorse” explained by the Court of Appeal were confirmed by the Court of Final Appeal in its judgment[15]. And in the case of Leung Hiu Yeung, the Court of Final Appeal also applied the above principles and said that the absence of remorse on the part of the appellant in that case was a relevant factor in considering whether a community service order or a term of imprisonment was to be imposed.

83.In the present case, before calling for a community service order report, the magistrate made it clear that he considered a starting point of 4 months’ imprisonment to be appropriate. However, at the request of counsel for the appellant, such a report was called for. The magistrate made it clear that even if the report recommended that it was suitable to deal with the case by way of a community service order, it did not mean that he would definitely accept the report.

84.The magistrate made it clear that he found that the appellant had no sense of remorse not only because he had pleaded not guilty. Otherwise, he would not have called for a community service order report. Both in court and in the Reasons for Verdict and Sentence, the magistrate repeatedly made it clear that he found that the appellant had no sense of remorse not because the appellant had applied for a permanent stay of proceedings but rather he found that the appellant had no sense of remorse from the time he made such an application to the time the trial ended.

85.In the case of Secretary for Justice v Andrew Marc Dank & Anor[16], the Court of Appeal pointed out that expressions of remorse are far less persuasive than objective indicators. Although the defendant in that case remained silent when interviewed, provided no assistance and pleaded guilty only after the trial had commenced, he would not be penalised for that conduct. But in such circumstances, the court had difficulty regarding him as being remorseful[17].

86.By the same token, the magistrate rightly pointed out that he found that the appellant had no sense of remorse not because he exercised his right to “plead not guilty” and “apply for a permanent stay of proceedings before trial”. However, in the present case, there were no objective indicators whatsoever to show that the appellant had the slightest sense of genuine remorse.

87.According to the community service order report, the appellant “basically accepted the judge’s verdict”. In this regard, the magistrate asked counsel for the appellant to clarify the position. The counsel for the appellant said it meant “The defendant accepts the judge’s verdict with respect”. As pointed out by the Court of Appeal, “showing respect to the court (or the court’s verdict)” may not necessarily have anything to do with remorse.  Obviously, after the verdict, the appellant still did not admit that he committed the crime to raise his popularity. This just demonstrates that the appellant was not genuinely remorseful.

88.The respondent cited what the Court of Final Appeal had pointed out in the case of Wong Chi Fung that the magistrate was entitled to make findings on and attribute different weights to the defendant’s personal circumstances, motive and expression of remorse[18].

89.The magistrate considered that the appropriate starting point was 4 months’ imprisonment. He refused to accept the recommendations of the community service order report only after he had taken all circumstances into account, including whether the appellant was genuinely remorseful. The magistrate did not err in principle in refusing to impose a community service order[19], which was within the reasonable scope of a magistrate’s discretion.

My consideration in respect of the sentences

90.First of all, as regards the magistrate’s decision of not imposing a community service order on the appellant, after careful consideration, I accept the submissions by the respondent. The appellant’s conduct throughout (from his pleading not guilty to his challenging whether the prosecution was a selective one and to his conviction) did not show that he was genuinely remorseful. As pointed out by the respondent, the appellant was entitled to plead not guilty and the court would not impose a heavier sentence on him for that. However, on the other hand, the appellant’s indication to the probation officer that he respected the court’s verdict and promised that he would not commit the offence again from then on does not mean that he was remorseful.

91.At paragraph 104 of the Statement of Findings, the magistrate stated his reasons for considering it inappropriate to impose a community service order in the present case. One of the main reasons was that the appellant never admitted that he committed the crime to raise his popularity. Having considered that I agree with the magistrate’s findings: “The appellant’s commission of the offences was to increase his popularity and had nothing to do with ‘public interest’. Despite repeated warnings from the ICAC officers, the appellant still continued to commit the offences by making the disclosures”. I am also of the view that imposing a community service order is inappropriate.

92.When a magistrate considers whether a community service order should be imposed, one of the important factors is whether the defendant is remorseful. At trial, the appellant denied that what he did was to raise his popularity and emphasised that it was in the “public interest”. The magistrate rejected what he said and found that he had made the disclosures purely to raise his popularity. In such circumstances, the magistrate was not to be criticised for asking the defence to explain what the appellant meant when he told the probation officer that he “basically accepted” the magistrate’s verdict. Having read the transcript in question, I do not think that the magistrate had been “pressing on step by step”.

93.Now, I have to consider whether 4 months’ imprisonment is manifestly excessive.

94.The defendant in the case of Lee Yum Sang committed the offence out of personal grudges while the appellant in the present case committed the offences to increase his popularity.  The facts of the two cases were different. I agree with the view that the magistrate took: despite repeated reminders that he could not make any disclosures, the appellant knowingly committed the offences to raise his popularity. Such circumstances would not be less severe than the single offence in Lee Yum Sang.

95.I totally agree with the arguments advanced by the respondent in their submissions. The magistrate was justified in adopting 4 months’ imprisonment as the starting point for each of the charges. I also do not see any mitigating factors. As far as the facts of this case are concerned, 4 months’ imprisonment for each of the charges, to run concurrently, is an appropriate sentence. On totality, 4 months’ imprisonment is far from being manifestly excessive. 

Judgment

96.For the above reasons, I also dismiss the appellant’s appeal against sentences.

(Vetted by P. Y. Lo, Barrister-at-law, 14 February 2020)