Attorney Gengral v. Leung Hung-hang

CAAR000019/1983

BETWEEN

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Coram: Sir Alan Huggins, Ag. C. J., Yang & Barker, JJ. A.

Date of Judgment: 12th, March 1984

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REASONS FOR JUDGMENT

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Sir Alan Huggins, Ag. C. J. :

1. The-Attorney General applied for review of a sentence, said to be one year's imprisonment suspended for three years, for receiving an advantage contrary to s.4(2)(4a) of the Prevention of Bribery Ordinance. Since these Reasons were originally drafted, we have been informed-that the sentence was in fact such suspended term of imprisonment and a fine of $3,000.00. No mention of the fine was made at the hearing, but it would have made no difference to our decision.

2. It appears that the alleged giver of the advantage was separately charged but that, with the consent of the defence, both informations were brought up for. joint trial. The present Respondent pleaded Guilty, but the giver (a man called Lam) pleaded Not Guilty. The magistrate decided to postpone sentence on this Respondent until the trial of Lam had been completed. In the event Lam was acquitted because the magistrate found that the sum of $1,000.00 which this Respondent admittedly received from Lam was paid as a loan, which would have to be repaid, and not as a reward.

3. When. he came to sentence this Respondent, the magistrate appears to have found himself in some difficulty. Having found as a fact in the trial of Lam that he had paid the money as a loan, the magistrate thought he was compelled to proceed on the basis that the Respondent had received it as a loan. He then passed the sentence which we are asked to review. We do not know whether at that time he gave any reasons.

4. The Crown was aggrieved, and an application was ,made to the Having magistrate to review his sentences considered the arguments of counsel on both sides he confirmed the sentence which he had previously imposed. The written reasons of the magistrate which are before us are his reasons for confirming the sentence. This assumes importance because, by virtue of his findings at the trial of Lam, he came to the conclusion that "the correct course" would be for him to set aside the conviction under s.4(2)(a) and to substitute a conviction under s.3 of the same Ordinance but that, as he was then reviewing only the sentence (in proceedings initiated by the Crown), it was not open to him to do so. If the conviction was in truth wrong, we do not think he should have been inhibited by that. In. comparable circumstances this court has, on an appeal against sentence, given leave to appeal out of time against conviction, substituted a conviction for another offence and then passed sentence for the correct offence. In an appropriate case we would do the same upon an application for review. However, there was another reason why the magistrate had no power to review the conviction of his own motion, namely that. the power of review was exercisable only within 14 days of the decision  sought to be reviewed. The sentence was passed on 3rd November 1983 and the review was heard on 29th November 1983. The proper course would have been for the magistrate to pass sentence on the basis of a s.4 offence and then to invite the Respondent to appeal out of time to a judge of the High Court.

5. What the magistrate did was to allow the conviction under s.4 to stand but to treat his finding upon the trial of Lam. as a special circumstance for not imposing an immediate custodial sentence. He recognized that in the absence of such special circumstances an immediate custodial sentence would be appropriate: LAI Yuk-kui v Reg. 1981, H.K.L.R. 691. In our view the course taken by the magistrate could not be right: it amounted to holding that innocence of an offence was a special circumstance for passing a lenient sentence for that offence. Either the Respondent was guilty of the offence under s.4 or he was not.

6. The first issue for our consideration is whether the magistrate was right to think his finding as to the state of mind of Lam was conclusive as to the state of mind of the Respondent. We respectfully agree with the Full Court in NGAN Kai-shiu v Reg. 1973 H.K.L.R. 161 that in a case of an alleged acceptance of a corrupt reward it is the statement of mind of the defendant which is material and that the state of mind of the giver is normally irrelevant. That is not inconsistent with Keay v The Crown. (1956) 40 H.K.L.R. 347, where the court held that, if the defendant has actual knowledge that the alleged reward is being given. by the other party for an innocent purpose, his own decision to treat the property as a reward does not make him guilty of an offence under s.4. It is is true that in CHENG Kin-ping v Reg. 1982 H.K.L.R. 308 Mr. Justice Macdougall said at p.312B:

"In an acceptance case the status of what is given is most relevant; indeed decisive, if it turns out not to be an advantage. Thus the state of the giver's mind, his intention, is all important for it is possible, as was perhaps the situation in the instant case, that the parties were at cross purposes. In a solicitation case the only pertinent enquiries in this connexion are what the person soliciting had in mind and whether it was an advantage. The state of mind of the person from whom the advantage is solicited is not the determining factor.

Here again the parties might have been at cross purposes, but if the evidence discloses that at the time the solicitation was made, it was one of an advantage, then it is irrelevant that at that time the. person from whom the solicitation was made may have thought, perhaps naively, that it was not one of an advantage."

We see no distinction in this respect between an acceptance and a solicitation case: it is irrelevant in both cases that the person from whom an advantage is obtained or sought may have thought that there was to be no advantage if the recipient has a guilty mind, although there must; of course, be something which is capable of being regarded as an advantage.  it follows that the magistrate was wrong to regard his finding at the trial of Lam as in any way inhibiting a conviction of the Respondent under s.4.

7. However, a question which we now have to ask ourselves is whether the Respondent was or was not properly convicted of an offence under s. 4. He was represented by counsel and pleaded Guilty. If he pleaded Guilty under an error of law, his plea could be withdrawn. His counsel has agreed before us that she does not allege that the Respondent pleaded Guilty under a misapprehension of the law. That there was no such error appears from his admission of the statement of facts upon which the Crown relied. That statement indicated that the Respondent had admitted under caution that :

"He accepted $1,000.00 from Lam as related and that he used the money for his personal needs, supplying Lam with cigarettes in return."

(The Respondent was at the material time a Prison Officer and Lam was a prisoner under his supervision.) The judge said that the passage cited was ambiguous and that it was open to an interpretation consistent with his findings on the trial of  Lam. With. respect to him we do not think it was fairly open to such an interpretation. If the money was received as a loan to use for his personal needs, the cigarettes were not the sole "return" for that money. The consideration for, the loan would be, at least in part, a promise to repay the money. It does not appear that the Respondent ever suggested that the money was paid as a loan, either before or after the trial of Lam. If he had done so, it is inconceivable that his counsel would have been content with his plea of Guilty to an offence under s.4. The magistrate himself regarded Lam's evidence that the money was a loan as being in conflict with the Respondent's statement to the police. Although that statement was not before us, the magistrate says that in it the Respondent claimed "that there was a reward to Lam in the form of $300 cash and 2 cartons of cigarettes". How that statement was relevant to the trial of lam is not clear, nor is it clear from the statement for what Lam was being rewarded, but it is remarkable that it apparently contained no mention of a loan.

8. The natural. meaning of  the admitted statement-of facts was that the consideration for the payment of. $1,000 was the supplying to Lam of  an unspecified quantity of cigarettes and, when read in the light of the plea of Guilty, such an interpretation is irresistable. It was, of course, never suggested that the Respondent agreed to expend the entire $1,000 on cigarettes for Lam, in which case there would have been no benefit to him and, therefore, the money was not capable of being a reward.

9. In the result we came to the conclusion that the magistrate was wrong to proceed as though the Respondent had been wrongly convicted under s.4 and that the application had to be allowed. In our view a proper sentence was one of 12 months' imprisonment. As this was a review we would, but for one other factor, have substituted a sentence of nine months' imprisonment. We were, however, informed that he was engaged to be married and that the fiancee was one month pregnant. That could never have happened had the Respondent been sentenced to an immediate custodial term. We thought it right to ensure that the Respondent was free to marry before the child was born and, for that reason, we further reduced the substituted sentence to one of six months' imprisonment.

12th, March 1984