Attorney General v. Li Shi-on and Others

CAAR000002/1976

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 2 OF 1976

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Coram: Full Court (Briggs, C.J., McMullin & Pickering, JJ.)

Date of Judgment: 30th January, 1976.

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DECISION

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1. This was an application by the Attorney General to review sentences of nine months' imprisonment imposed upon the three respondents by a magistrate following upon their conviction upon a single charge of conspiring to solicit money payments from certain hawkers in return for protection from prosecution for hawking offences. We refused the application for reasons which appear below.

2. The three respondents, all of them police constables, were, at the time of arrest, attached to a section of the Force, known as the Nuisance Squad, charged with the duty of supervising hawkers and seeing that public streets are kept free from obstruction. Evidence was given by a number of hawkers and by an officer of the Independent Commission Against Corruption who had carried out surveillance duty in relation to the respondents that the respondents had collected money from about 16 hawkers in the area covered by their regular beat duties. The sums collected from each hawker appear to have varied from $5 to $10 per week. Some of these collections were made by the respondents themselves but for a long period of time they employed a hawker, LI Man, as their agent for this purpose. This evidence, which was accepted by the learned magistrate, showed clearly that, during the period of these collections, the people from whom money had been collected were protected from the periodic investigation by the police of the hawker population in the area. These tolls continued to be exacted over a period of many months between the later part of 1974 and the 27th of August 1975 when all three respondents were arrested.

3. Counsel upon both sides have referred us to a number of previous decisions by this court in similar applications. Comparisons are difficult to make because, even in the cases where the offence being considered was similar in character to the present offences, there are invariably distinguishing circumstances which help to explain any apparent disparity between the present sentences and those imposed in the earlier cases. While useful as a general guide to the court's practice these decisions do not afford, in the present instance, a decisive determinant of the issue in the applicant's favour. There is no question but that these were lenient sentences. In the view of each of the members of this court, the nature of these offences was such that, particularly in the present climate of public anxiety concerning official corruption, sentences twice as long as those imposed would not have been untoward and would certainly have been upheld upon appeal. But conformably with the principles upon which this court has acted in dealing with cases taken upon review since the inception of the review system we feel we cannot say that the present sentences were so manifestly inadequate as to occasion feelings of shock or outrage. The sentences are custodial sentences and to that extent the decision of the learned magistrate was fully in conformity with the principle enunciated in Review No. 3 of 1974 where, in relation to an offence of the kind we are now considering, (the particular reference being to Section 4 of the Prevention of Bribery Ordinance) - the court said:

"In all but the rarest of cases an offence under this section merits a custodial sentence and one which takes effect immediately."

In that case custodial sentences of three months had been imposed but they were regarded as being manifestly inadequate by the appellate court which substituted sentences of twelve months. It is, however, in relation to that decision that the only special point calling for comment arises upon the present review. In an earlier passage in Review No. 3 of 1974 the court said :

"We think that the minimum sentence for corruption in circumstances such as is apparent here must be a custodial sentence of twelve months."

Mr. Penlington relied upon that in the present case but he was careful to refrain from suggesting that twelve months has now been established as an irreducible minimum in all corruption cases. Mr. Sanguinetti, however, was clearly under some anxiety that this decision was to be interpreted as an attempt at judicial legislation and we must make it clear that we cannot so regard it and we are quite satisfied that the passage quoted is not to be interpreted in that sense. In Criminal Review No. 9 of 1973, a case in which the argument on behalf of the Crown amounted, in effect, to the suggestion that in all cases of wounding with intent custodial sentences must be mandatory, the court unanimously rejected that suggestion and in relation to it a member of the present court, Pickering, J., said that it would be grossly inappropriate for the Full Court to lend itself to judicial legislation of that nature. While that decision was not brought to the attention of the court upon the hearing of Review No. 3 of 1974 we think the principle enunciated in the earlier case was undoubtedly correct and that the brief passage quoted from the later decision is to be understood as saying no more than that in the circumstances of that case the proper sentence was one of twelve months.

Representation:

Penlington C.C. for Applicant/Crown.

Sanguimetti (W.K. Poon & Co.) for Respondents.