HKSAR v. Sze Ching Lok

HCMA 19/2022

[2023] HKCFI 2088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 19 OF 2022

(ON APPEAL FROM KCCC 2921 OF 2019)

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between

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J U D G M E N T

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Introduction

1.The appellant was convicted after trial before Jacky Ip, Magistrate, of two counts of Offering an Advantage to an Agent contrary to s9(2)(a)  of the Prevention of Bribery Ordinance, Cap 201 (“the POBO”). He was sentenced to 4 months’ imprisonment on each charge.  Two months’ imprisonment under Charge 2 to run consecutively to Charge 1.  A total of 6 months’ imprisonment.

2.By reason of his Notices of Appeal dated 12 January 2022, the appellant seeks to appeal both conviction and sentence.

The Prosecution Case

3.These proceedings deal with the rental of Flat 23,1/F, Man Ying Building, 1-23 Man Yuen Street, Yau Ma Tei, Kowloon (“the Flat”).  Advanced Consultants Limited (“ACL”)  was the owner of the Flat at the material time.  Ho Ting Wai Christine (“Christine”)  and her husband were the registered directors and shareholders of ACL.  Christine lived with her husband in Singapore.  As a result, she assigned her sister Ho Wing Sze Isabella (“Isabella”), to sign on behalf of ACL as an alternate director.  Ho Tze Chung (“Ho”), her younger brother, assisted by finding tenants and collecting rents.  Ho held no formal appointment in respect of ACL.  He was not an employee and he was not paid.  Any tenant, tenancy agreement, and the conditions thereof, were required to be approved by Christine.

4.In 2013, Ho met the appellant to discuss the tenancy of the Flat.  He informed the appellant that he was acting on behalf of ACL and that the Directors were Christine and her husband.  The appellant informed Ho that he was intending to operate the Flat as a guesthouse.  By way of background, the appellant was already managing Flat 24 at the material time on behalf of Wong Yun Kai (“Wong”)  but that flat was subdivided into small long term rental rooms.  The appellant collected the rents for Flat 24 and paid an agreed lump sum to Wong but was able to retain the remaining profit for himself.

5.In early 2013, Ho, acting as agent for ACL, was looking to rent out the Flat, which had been newly renovated.  On the understanding that the appellant intended to use the Flat as a guesthouse, a tenancy agreement[1] was entered into on 5 April 2013 between ACL and One Plus Two Enterprises Limited (“OPTEL”)[2].  OPTEL was a company operated by the appellant.  The tenancy agreement was signed by Isabella on behalf of ACL and by the appellant on behalf of OPTEL, at a monthly rental of HK$16,800 per month, payable on 10^th of each month.  The tenancy was to commence on 10 June 2013 and to run to 9 December 2018[3], for a term of 5 1/2 years fixed and thereafter 2 years open.  The appellant was ultimately unable to obtain a license for a guesthouse and had then subdivided the flat into rooms to obtain longer term rentals.

6.Initially, rents were paid on time by the appellant via online banking directly into the account of ACL.  The authorised signatories of that account were Christine and her husband.  Ho did not have access to the account but maintained the passbook, which he would update on a monthly basis.  Later, in 2015/16, much smaller sums were paid and the account was in arrears.  Owing to financial pressure, the appellant resorted to making payments as and when he could through several other companies which he operated.  These payments came to the attention of the SFC and prompted an enquiry into ACL, which resulted in reputational damage.  That investigation caused considerable inconvenience to Ho, as the bank book he held for the account of ACL did not show the origin of payments.  He was therefore required to deal with the bank directly to show where the monies had originated but Christine and her husband were the only people authorised to do so.  As a result of the inconvenience and reputational damage to ACL, Christine no longer wished to have the appellant as a tenant.  Ho continued to spend a considerable amount of time and energy chasing him for payment and reconciling accounts.  Ho was communicating regularly with the appellant to have him pay what was owed[4].

7.At some point in 2016, the appellant came to an independent arrangement with Wong for him to enter into a new tenancy agreement for the Flat with ACL whereupon the appellant would agree to a termination of the existing agreement.  A private arrangement between the appellant and Wong would then ensue along similar lines to Flat 24, which allowed the appellant to retain the day to day management of the Flat and to recover rental monies from tenants.  The agreement, as between Wong and the appellant, was at a fixed annual rate but any monies received above that annual rate could be retained by the appellant.  Wong was also to pay the appellant a sum in the region of HK$425,000 for the works the appellant had carried out in subdividing the Flat into rooms.

8.In 2016, the appellant introduced Wong to Ho in an attempt to persuade ACL to allow Wong to enter into a new tenancy agreement, which would then allow the appellant to be released from his agreement. Negotiations took place between Ho and Wong and he eventually informed Christine of it in November 2016.  As a result, she came to Hong Kong to meet with Wong on 11 December 2016.  Christine, Ho, Wong and another third party met in McDonalds. The appellant was not invited to that meeting because Christine had made it clear that she would only lease the Flat to Wong on condition inter alia that the appellant was not involved with the management of it in any way.  As this was a proposed business arrangement between Wong and the appellant, in which the appellant was to manage the Flat, Wong was not prepared to acquiesce to her conditions.  Ho had previously informed the appellant of these conditions and he knew that Christine had not changed her mind during the meeting.

9.Christine needed to be persuaded to change her mind in order for the appellant’s business arrangement with Wong to proceed. The appellant asked Ho to persuade Christine to change her mind.  He had done so both orally in person, by telephone, and by Whatsapp throughout 2016.  After the December 2016 meeting, Ho told the appellant that Christine would not budge.  As a result, in December 2016, under Charge 1, the appellant offered Ho and his family a travel package to Disneyland or Macao as an incentive for Ho to intervene with Christine.  This was refused.  Six months later, in a further attempt to persuade Christine to change her mind, in June 2017, under Charge 2, the appellant offered Ho HK$30,000 “tea money”.  This was also refused.  

The Defence Case

10.The appellant maintained that he had not met Ho twice at the offices of the property agent and that Ho had never told him that he was an agent for Christine.  He had paid no attention to the company or the shareholding as he believed Ho was the landlord of the Flat or a majority shareholder of ACL.  This was because he had thought Ho owned 100% of the Flat but later Ho had then told him he had a 60% interest and therefore he thought Ho was a majority shareholder.  The appellant believed Ho had the power to make decisions regarding the Flat himself and to override Christine on matters concerning the Flat.  He paid no attention to her concerns about his role.  He believed it was Ho’s company and that Christine was an executive director.  He believed he was acting with Ho as principal and not as either the agent of ACL or of Christine.  He had not realised in April 2013, that the tenancy agreement had been signed by a lady and not by Ho.  Ho had never explained his relationship to the Flat but his words and actions suggested he was the decision maker.

11.When the appellant and Wong were seeking to have Wong take over the tenancy agreement, which was not forthcoming, the appellant knew of the conditions introduced by Christine and that she did not want him to be involved.  He did not care about these conditions because he did not want to take on more work.  He wanted to give up the tenancy because of his financial difficulties.  He understood that there was some friction between the family members in respect of the rental of the Flat to Wong and he was motivated to persuade them to enter into an agreement with Wong.  He knew that Christine was the stumbling block and had hoped that either Ho or his father could persuade her to change her mind.  He accepted that he had offered the travel package under Charge 1[5] but simply out of concern for the family dispute and he accepted he offered the HK$30,000 “tea money” under Charge 2[6] but this was to encourage the family to come to agreement and settle their differences with a short holiday or over a luxurious meal.  Neither offer was made with a view to any benefit.  Both offers had been refused and no harm had come to anyone.

Statement of Findings

12.In his Statement of Findings (“SoF”), the learned Magistrate, correctly summarised the case of the prosecution and of the defence although it was not easy to sift the wheat from the chaff.  The evidence related to events which had occurred several years previously at a time when no one would necessarily envisage having to give evidence in court. He analysed the defence case thoroughly.  He noted that the appellant had denied that Ho had ever suggested that he dealt with the appellant as an agent of ACL and that he believed him to be the landlord owning either 100% or 60% of the shares.  He also noted that the appellant had said there was nothing about their interaction that disabused him of this belief.  The appellant   accepted that he had understood this was very much a family matter and that there was some disagreement about the suggestion of allowing Wong to take over the lease with the appellant acting as manager.  He had been concerned about the effect this dispute had upon the greater family.  He also accepted that Ho had not in fact stated his exact relationship to the Flat.  However, Ho’s behaviour had been that of the decision maker, including in respect of day to day matters. The appellant had said that the offer of a holiday package was for the whole family and not to Ho on his own.  As for the HK$30,000 “tea money”, he had blurted this out but thought that a rich family would not be impressed by a normal meal and therefore he intended them to have an expensive meal.  He hadn’t really put his mind to the figure of HK$30,000 but to the number of people and type of meal.  If Ho had agreed, then he expected to reimburse Ho for the meal once taken and if it was in excess of HK$30,000 then HO would cover the excess.  He had hoped that, over dinner, they may be able to sought out their disagreement.

13.The appellant explained that when he used the phrase “persuade Christine” in his Whatsapp messages, he had not meant persuade her to change her mind but to sit down and talk and to calm her emotions down.  The appellant gave evidence that he didn’t really want to be involved in managing the Flat as it was very tiring.  He would have been happy if they had simply agreed that Wong could take over the tenancy.

14.In his lengthy closing submissions, the Magistrate noted that defence counsel had sought to undermine the credibility of each and every prosecution witness.  He dealt with that criticism[7].  He correctly pointed out that the relevant and material evidence came directly from the testimony of Christine and her husband, who were the directors and shareholders of ACL. They were the operating minds of the company and not PW1 (Gloria)  and PW3 (Isabella), who had much lesser roles within the family and in relation to the Flat.  Ho had no official role other than to find tenants and accept rental monies.  He considered in some detail, the criticism of PW2 Ho, who was the principal prosecution witness.  He reviewed the Whatsapp messages between Ho and the appellant.  Ho had deleted some messages[8] before handing over the phone to the ICAC.  This was suggested by the defence to be a dishonest act as his description of what he had deleted and why he had deleted them didn’t hold water.  However, the Magistrate noted that he had all of the messages before him in trial including those which had been deleted.  He accepted the explanation given by Ho for the deletions even though some of the messages originally deleted were clearly relevant.  He analysed the deleted messages and noted that there were messages which had been deleted which were actually prejudicial to the appellant[9].  He acknowledged that the appellant had suggested some messages had been deleted because they showed an innocent state of mind.  The Magistrate then made this point:

“ 44. I find it confusing on this point. On [the] one hand, the Defence Counsel said that the Defendant was not trying to convince Christine to make any decision on the proposed tenancy agreement, on the other hand, the Defence Counsel said that the Defendant was only trying to have Christine to consider Mr Wong as a replaced tenant. In order to have Mr Wong to replace the Defendant as a tenant, a new tenancy agreement would have to be signed with Mr Wong, which would need Christine to make that decision, which the Defendant knew it all along.＂

15.More significantly, the Magistrate pointed to serial number 218 of P14, on 24 November 2016, a previously deleted message, which clearly showed the appellant saying Christine “has the say in those contracts” and asking Ho to deal with the agreement and get “that side” (Christine)  to sign.  He rightly concluded that what was important was that the Court had all of the messages now before it so that it was in a position to ascertain what was said and thereafter the state of mind of the appellant.

16.The Magistrate also noted that there was some inconsistency between closing submissions by defence counsel in argument and the actual evidence.  There were a number of submissions which the Magistrate felt it necessary to correct including inter alia that it had been suggested that there was evidence of a conspiracy between Ho and Wong to the detriment of the appellant but this had, in fact, been denied.

17.Having considered the evidence of the prosecution witnesses, the Magistrate found their evidence to be clear and straight to the point and was unshaken under cross examination.

18.The Magistrate summarised the defence case as put before him in trial.  It was that the appellant believed Ho to be the landlord[10] and had made the relevant offers to ACL as principal not to HO.  He went on to reject that evidence[11] and explain his reasons for doing so.  He did not accept that a business man such as the appellant purported to be, would not have identified the party signing the lease on behalf of the landlord.  He found that the appellant clearly knew of Christine and her relationship to the decision making in respect of the Flat[12] and that Ho did not have sole decision making responsibility[13].  He also found, that his multiple offers to Ho for the benefit of Christine reflected that knowledge[14].  Accordingly he rejected the explanation given by the appellant[15]. 

Grounds of Appeal

Appeal Conviction

19.In his perfected grounds of appeal, the appellant maintains:

Ground 1

The learned Magistrate erred in rejecting the Appellant’s evidence by failing to give any or any sufficient regard to the evidence and arguments advanced by the Appellant, and/or by taking into account irrelevant considerations or factors.

Ground 2

Further or alternatively, the learned Magistrate was wrong in finding that PW2 was honest and reliable without or without sufficiently evaluating and analysing his evidence which was, inter alia, contradicted by contemporaneous Whatsapp records. 

Ground 3

Further or alternatively, the learned Magistrate erred in finding that the advantages were offered to the agent instead of the principal.

In his amended perfected grounds of appeal, the appellant seeks to add a further ground:

Ground 4

The learned Magistrate erred in not giving the appellant the benefit of the doubt when there was evidence before him which was consistent with the appellant’s innocence.

Appeal Sentence

20.In his perfected grounds of appeal, the appellant maintains:

Ground 1

The learned Magistrate had failed to consider or consider sufficiently that there was no concealment on the part of the appellant in offering the advantages.

Ground 2

The learned Magistrate failed to consider or consider sufficiently that the advantages offered were in relatively small scales and were immediately rejected by PW2 and no harm was done to the principal.

Ground 3

In respect of Charge 2, the learned Magistrate failed to consider or consider sufficiently that the appellant actively assisted the ICAC by volunteering to provide his Whatsapp record.

Magistracy Appeals

21.An appeal under s113 of the Magistrates Ordinance is by way of rehearing on the evidence before that court.  This Court on appeal will examine the evidence which was before the Magistrate, the depositions and the Magistrate’s Statement of Findings and come to its own conclusions as to the guilt of the appellant: HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  It will only depart from a Magistrate’s finding of fact or his determination as to the credibility of a witness if satisfied that finding is plainly wrong[16] i.e. it cannot be reasonably explained or justified.  This Court must be satisfied on the evidence before it of the guilt of the appellant beyond reasonable doubt. 

Appellant’s Submissions on Conviction

22.Mr Sean represented the appellant at the appeal hearing on 6 June 2023.  He adopted the PGA of original counsel, Mr Wong, but sought to add the 4^th Ground, which he submitted crystalizes Grounds 1-2.  In his submissions Mr Sean therefore focused upon a single argument.  His primary submission was that the appellant believed himself to be dealing with Ho as Principal and not as agent and that there is evidence from which the Court below could have drawn the inference that the appellant believed Ho to be the Principal as a 60% shareholder of ACL.  For this argument, Mr Sean relied heavily upon the telephone messages at serials 173 and 174 of P14 at p246 of the Appeal Bundle, which reads: “It’s like this, even I have sixty percent in control you see I’m so fucking pissed!” and “If there wasn’t the issue of family members, I would have definitely fought to the end.  But unfortunately, as family is involved, I have to give in”.

23.There is no doubt that the case put to Ho in trial was that he was the majority shareholder and therefore the principal and not an agent for ACL.  This was denied by Ho.  I agree with Mr Sean, and respectfully disagree with the Magistrate, that the defence case was that he was dealing with ACL as principal[17], although I understand how the Magistrate may have believed this to be the case considering the appellant’s shifting evidence. 

24.However, there are a number of difficulties with Mr Sean’s submission.  Firstly, it must be set against the evidence of the actual legal and equitable disposition of the shares, which was not disputed.  Simply put, Christine and her husband owned 40% of the shares in ACL which represented the deposit paid by them for the Flat.  It was intended to be an investment vehicle for Gloria and Isabella who were to pay the mortgage.  They owned the other 60% between them.  Unfortunately, they were too young to repay the mortgage and it was agreed informally that their 60% would vest in their mother. It was anticipated that it would then go to Ho upon her death.  So far as Ho and the family were concerned, Ho may have had a future, but not present, interest in 60% of the shares.  Neither Ho nor the appellant gave evidence that Ho had explained this to the appellant.  Indeed, both accepted that his exact relationship with the company had not been discussed.  The only allusion to this in the documentary evidence is serials 173 and 174.  Mr Sean’s whole argument turns upon these two entries.  He relied upon serials 173 and 174, as evidence of the state of mind of the appellant on 24 November 2016, but this is out-with any other context.  Although it is numbered serial 173, the preceding evidence within P14, post-dates this evidence and the offending generally.  Serial 173 is in fact one of the first telephone messages before the Court.  It appears to come after a 3 year relationship in which the appellant accepts he is consistently in arrears from 2014 onwards; has failed to obtain a licence for a guesthouse; has converted the Flat into rooms and has had significant maintenance problems.  There were clearly a significant number of occasions in which the appellant and Ho spoke to each other either face to face or by telephone in order to deal with these issues.  Put in context, the messages which immediately follow serial 173 appear to be about the state of the Flat and utility services to the Flat or chasing arrears of rental.  These are independent of the Wong rental agreement.

25.There is no other documentary evidence before the court of the appellant’s state of mind prior to this date.  Accordingly, the weight which can be given to serials 173 and 174 is limited and it must necessarily be read in the light of the subsequent digital evidence and the oral evidence of the witnesses.  That evidence was that Ho made it clear to the appellant during initial discussions and in the estate agent’s office on two separate occasions, as well as subsequently, that he was acting as an agent of Christine who was the actual controlling mind of ACL.  His role was to manage the day to day operations of the property rental but that decisions on who was to be a tenant would be made by Christine and the appellant understood this[18].  Ho’s evidence in this respect was not undermined.  The appellant on the other hand maintained he had never met Ho in the estate agent’s office and that he had not noticed that it was Isabella and not Ho who had entered into the tenancy agreement with his company despite operating several businesses in his own right.  He maintained he had no interest in ACL or the shareholding and yet his whole case was premised upon believing Ho to be the majority shareholder.  This was not the only conflict in his evidence and it is no surprise that his evidence was rejected. 

26.The difficulty Mr Sean faced with his secondary submission i.e. that it was incumbent upon the Magistrate to take into consideration evidence which supported another reasonable inference to the benefit of the appellant, is that there must be some admissible evidence before the Magistrate (and which the Magistrate accepted rather than rejected)  from which he could infer that the appellant believed he was dealing with a principal and not an agent.  For this, Mr Sean similarly relied upon serials 173 and 174 for this submission.  Given Ho’s evidence, where is the primary fact, which is or may be true, from which the Magistrate could draw the inference which Mr Sean asked the Court to draw? Mr Sean’s response, almost in the alternative, was to submit that despite the fact that it was clear on the documents that Christine was the director and controlling mind of the company, and that the appellant “obviously” knew this, the appellant may nevertheless have believed that Ho was the one who could override his sister. For this he relied upon inter alia serials 307, 308 and 584, which include language suggesting the appellant believed Ho to be the ultimate decision maker.  In the words of Mr Sean, “He was trying to convince Mr Ho to convince Christine”.  Unfortunately, this submission simply underlines the finding of the Magistrate that the appellant realised Christine was the principal and not Ho.  Ho was the means by which the principal could be persuaded and the following messages support this finding.  If any more evidence than that were required, if the appellant believed Ho was the principal why would he ask Ho to give money to his father in order to take the family out for a trip? Why not simply give the money directly to Ho to do so?

Consequential Directions

27.During the hearing on 6 June 2023, the Court took the opportunity to listen to the audio recording of the relevant witnesses given that defence counsel had not sought to have the transcript placed within the appeal bundle.  Both Counsel had a copy of the audio disc and had listened to it for the purposes of appeal.  As a result of the tenor of the submissions made, it was agreed that the Court would be provided with a transcript of the trial evidence and that Counsel would be given leave to identify particular extracts for the Court’s perusal, to support their submissions, which they did.  The matter was then adjourned for the Court to hand down its ruling.  In the interim however, the appellant dispensed with Mr Sean’s services and obtained the services of Mr McGowan, who has asked that he be heard in addition to Mr Sean.  I can do no better that a recent judgment of the Court of Appeal in HKSAR v Thapa Kamala HCMA 366/2020 [2022] HKCA 1414 in which the Court of Appeal reminded us that:

“ Criminal justice is administered in the public interest. And it is in the public interest that criminal trials are conducted fairly, efficiently, and expeditiously from beginning to conclusion.”

28.The same must be said for all criminal proceedings of every type from bail applications to appeals. Court time is precious and costly.  It is in the public interest to be efficient and not to allow matters to be re-opened which have already been canvassed unless there is good reason in the interest of justice so to do. With respect to Mr McGowan, I suspect that his lengthy additional submissions reflect his instructions rather than the evidence before the trial court and seek to address issues which were either accepted by Mr Sean before this Court or not addressed at all in the Court below.  It is not open to the appellant to have two bites of the cherry simply because he now wishes to place another (or several)  fresh arguments before the court.  A full perusal of the transcript to make good Mr Sean’s submissions was required.  The Court was provided with that transcript and considered it in full in the light of the arguments presented at trial.  The Court is not prepared to address the 20 pages of further submissions of Mr McGowan and Mr Leung.  There has to be finality of proceedings otherwise applicants, defendants and appellants may seek alternative representation to advance alternative arguments if they believe the tribunal is not with them and precious resources are wasted when the litigant has had every opportunity to properly advance their case within the usual proceedings with the assistance of competent counsel.  The appellant is not unintelligent.  He has been privately represented and has had ample and appropriate opportunity to advance his case.  This is the point at which he must stop.

Analysis

29.There were 5 PWs, 4 sets of Admitted facts [P11, 12, 13 & 15][19] and the appellant gave evidence.  Other than the oral testimony, P14[20] (the Whatsapp records)  appear to be the most helpful as to the state of mind of the appellant.  No doubt that it why it is an agreed document [P12].  This is the issue upon which this appeal turns.  However, care must be taken with this exhibit as the Whatsapps are not in chronological order e.g. serial 170 dated 24 November 2016 follows serial 169 which is dated 1 August 2017, which post-dates the offence.  It cannot be placed in context without the evidence of Ho and the appellant, who had an ongoing inter-personal relationship not covered by the digital messages.

30.P14 commences some 3 years after the tenancy agreement [P5] comes into effect.  The Magistrate therefore relied upon the oral evidence of PW2, Ho and of the appellant, to assess the nature of the relationship during that period, as does this Court.  From P14, I note that the relationship between Ho and the appellant was a casual and to some extent friendly one, despite the fact that the appellant had fallen into arears by 2014 and was paying in small instalments by 2015, through other companies which he controlled.  It is easy to see the frustration of Ho in seeking to chase the appellant for payment of arrears at every opportunity and that he is caught between the appellant and Christine.  Ho gave evidence, which was accepted by the Magistrate, that he had made it clear to the appellant that he was not the landlord and that he was acting on behalf of Christine and ACL.  There are a number of messages which support that evidence and which indicate that Ho is not the one ultimately responsible for the Flat.  For example, as early as 13 April 2016[21], and prior to Charge 1, Ho states “It would be better if I were the one who calls the shots”.  The next series of calls in 2016, are at serial 170 onwards (immediately prior to Charge 1)  and are set against a dialogue about disposal of waste and building works at the Flat.  At serial 173, Ho does appear, without context, to be saying “even I have 60% in control” but, at serial 174, that he must “give in” to the family’s wishes.  Later, when Wong comes onto the scene in 2016, there is a reference to Christine returning from Singapore to deal with the matter and it is clear that the appellant is fully aware of the fact she is opposed to his continued involvement in the Flat.  He knew it would not go ahead if he was to be involved and he gave evidence that he didn’t wish to be involved.

31.By June 2017, the date of the second charge, they are discussing OPTEL being 3 months in arears with the rent and Ho is still chasing payment[22]. In doing so, he says to the appellant “Do you have any idea that I am being scolded every day, dude?[23]”  At which point, Sze offers to pay interest and Ho says “The interest is not what I want, But most importantly, I got to offer an explanation to the company….So far, the rents that you owe for May to July are a total of $50,400.  Now you just ten thousand has been paid.  40,400 is still outstanding.  It is already in the middle of the month.  The company is going to kill me[24]”. There is no suggestion in these messages that Ho is holding himself out to be the owner or controlling mind of ACL.  Quite the opposite, he appears to be answering to the company.  The overall tenor of the communication between Ho and the appellant indicates that it is Christine who is in control and Ho who is acting as intermediary but without any power in his own right.  The fact that he has been involved in the collection of rents and has been the point man for matters involving maintenance does not detract from this fact.  Indeed, Mr Sean accepted that the appellant knew Christine was a director and shareholder of ACL and that he offered the gifts in question but maintained simply that despite this he believed Ho could nevertheless override her decision.  That argument is problematic.  If Ho was on the side of the appellant and if Ho had the power to override and if this had been going on for almost a year, why then did Ho not override? He did not override because he had no such power and the appellant knew that to be the case, which is why he sought to have Ho “persuade” Christine to change her mind.

32.There is no merit in the argument that the appellant believed his offer of gifts was made to a principal.  The appellant’s appeal against conviction must fail on all grounds.

33.This appeal against conviction is dismissed.

Appellant’s Submissions on Sentence

34.The appellant also seeks to appeal sentence.  In determining the appropriate sentence, the appellant submitted that the Magistrate did not:

(i)  give due weight to the fact that the appellant was completely open about his offers and did not seek to hide them from Christine or her husband;

(ii)  failed to give any weight to the fact that the value of the offers was small, immediately rejected with no ensuing harm to the principal’s business; and

(iii)  the appellant had given assistance to the ICAC.

35.The Magistrate took into account the fact that the appellant was a 54 year old married man who worked as an IT Manager, with a son from a previous marriage.  He had before him a pre-sentence report that indicated the appellant did not accept the verdict of the Court, which contrasted with defence counsel’s submissions that the appellant was ignorant of the law.  His own mitigation letter amounted to an apology to his family for the trouble he had caused and the loss of his business and consequences to his employees but it did not appear to indicate any acceptance of the criminal wrong he had done.  Hence, he correctly found that the appellant showed no remorse.  There were a considerable number of letters attesting to him being a good son, husband and father as well as his contributions to the community but they also included opinions as to whether the appellant had committed the offences with which he was charged, which was inappropriate and should not have been included.

36.The Magistrate correctly cited HKSAR v Pau Chin-hung Andy [2014] 1 HKLRD 587, when he stated that in sentencing offences of this nature, a custodial sentence usually follows.  He was aware that the Court needed to take into consideration:

(i)  the amount of advantage offered;

(ii)  the period over which the offences were committed;

(iii)  the frequency of the offending;

(iv)   any special circumstances within the industry in question; and

(v)  the background of the defendant.

37.It is true to say the amount of the advantage is not great but nevertheless it was sufficiently large for the appellant to believe it would have the desired effect given all the circumstances and it has to be weighed against the economic advantage to him of the gain he was to make by securing a new agreement through Mr Wong and the payment of a significant amount of money representing the decoration fees.

38.Charge 1 and 2 cover a period of time over which the appellant attempted to have Ho persuade Christine to change her mind.  This was from mid-2016 to mid-2017.  They were not isolated offers, these were ongoing conversations seeking to place pressure on Ho, to which he did not succumb.  The fact he was unsuccessful is to the credit of Ho not the appellant.

39.The Court had nothing before it to suggest there was any special consideration to be applied to the rental of private property.

40.As for the appellant’s complaint that the learned Magistrate failed to give any credit for the fact that the appellant had been completely open about his offers, there is no evidence whatsoever that any other member of the family knew of these offers other than Ho to whom they were addressed.  The messages were not made publicly available to the family and the appellant had no direct conversations with other members of the family.  The suggestion that he was open about this activity has no evidential basis.

41.As for the suggestion that the Magistrate failed to give credit for the assistance given by the appellant, this too is without merit.  It was not alluded to by the Magistrate because the appellant did no more than any defendant does when he allows the prosecuting authority access to his mobile phone records before they sought to do so under a warrant.  This cooperation would in any event be placed in the context of the quality and nature of the answers given during interview which included the appellant denying making the offer under Charge 2 of HK$30,000 as “tea money”.

42.It was open to the Magistrate to impose an immediate sentence of imprisonment for this offending and, having heard the witnesses, to take the view that an appropriate sentence on the facts was one of 4 months’ imprisonment on each charge.  He ordered two months’ imprisonment under Charge 2 to run consecutively to Charge 1.  A total of 6 months’ imprisonment.  This is neither manifestly excessive or wrong in principle.  However, there is an argument that this was one continuous transaction which ran from the introduction of the “Wong” contract onwards. Accordingly, I consider that a sentence of 4 months imprisonment on Charge 1 and upon Charge 2, to run concurrently with one another, to be more appropriate in all the circumstances.

43.The appellant’s appeal against sentence is dismissed save that the sentence upon Charge 2 is to run concurrently with Charge 1.

44.Given my comments at paragraph 27 above, the costs of the adjourned hearing of 9 August 2023 will be to the Respondent, to be taxed if not agreed.

Ms Noelle A. Chit, SPP, of the Department of Justice, for the respondent

Mr James McGowan and Mr Andrew Leung, instructed by M.C.A. Lai Solicitors LLP, for the appellant