Attorney General v. Mak Po Shing

CAAR000018/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO.18 OF 1975

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 2nd September 1975.

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JUDGMENT

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1. This is an application for a review of sentences made by the Attorney General under s.81A of the Criminal Procedure Ordinance. The Respondent was charged with corruptly soliciting and corruptly accepting money under s.4(2) of the Prevention of Bribery Ordinance.

2. The circumstances were that he was a police officer involved in traffic accident investigations. There was a traffic accident in which the Complainant in the case knocked down a young boy, who sustained slight injuries. The Respondent was detailed to investigate the accident and he asked the Complainant for money. He suggested a sum of $100. The complainant quibbled at that amount but the Respondent subsequently pressed the matter: he even went to the extent of warning the Complainant of the possibility that his licence might be suspended.

3. The learned magistrate passed sentences of 4½ months' imprisonment consecutive on the two charges and suspended those sentences for two years. The contention on behalf of the Attorney General is that it is wrong in principle in such a case to suspend the sentence unless there are exceptional circumstances, and Mr. Penlington submits that in the present case there are not sufficient circumstances of an exceptional nature to justify a suspension.

4. Mr. Sedgwick has argued very forcefully on behalf of the Respondent and there are undoubtedly mitigating matters which are properly to be taken into consideration. This police officer was in very grave financial difficulties. He had responsibilities to his immediate family and to his brothers and sisters and to his parents which placed a very great burden upon him. Nevertheless, the object of the Prevention of Bribery Ordinance is to prevent this very kind of case and it is inevitable that the deterrent aspect of sentencing should come to the fore. The learned magistrate in the Reasons for Sentence which have been submitted to this Court says that "it would now seem that an immediate custodial sentence should .... have been imposed in this case. By saying that we think that he has indicated that he would, if now called upon to pass sentence in the present case, have imposed an immediate custodial sentence. He in fact suspended the sentence after referring to LAU Chor v. Reg. Cr. App. No. 534 of 1974. There the learned Chief Justice did suspend a sentence of imprisonment which had been imposed for an offence under the same section. It was, however, as Mr. Penlington has submitted, a genuinely exceptional case, where a man was desperate to get a job with the Government and offered money to somebody with a view to that end.

5. In our view this was a case where, although there were mitigating factors, there were not sufficient exceptional circumstances to justify the passing of a suspended sentence. We think that this application must be granted, but in all the circumstances what we proposed to do is to substitute for the sentences imposed sentences of six months' imprisonment concurrent on the two charges.

2nd September 1975.

Representation: