HKSAR v. Yeung King Lun and Others

DCCC 299/2021

[2025] HKDC 635

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 299 OF 2021

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REASONS FOR SENTENCE

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1.There are 5 Defendants in the present case:

(1)  D1 and D3 are charged with one count of conspiracy to commit misconduct in public office, contrary to Common Law, sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 101I(1)  of the Criminal Procedure Ordinance, Cap. 221 (Charge 1);

(2)  D2 to D5 are charged with one count of conspiracy to commit misconduct in public office, contrary to Common Law, sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 101I(1)  of the Criminal Procedure Ordinance, Cap. 221 (Charge 2);

(3)  D3 is charged with one count of conspiracy to doing an act tending and intended to pervert the course of public justice, contrary to Common Law, sections 159A and 159C of the Crimes Ordinance, Cap. 200 and section 101I(1)  of the Criminal Procedure Ordinance, Cap. 221 (Charge 3).

2.D2 and D5 pleaded guilty to Charge 2 before another Court.  After trial, D1 was convicted of Charge 1, D3 was convicted of Charges 1 and 2 but acquitted on Charge 3, D4 was convicted of Charge 2.  These are my reasons for sentence.

FACTS

3.The facts are set out in detail in the Verdict and I do not propose to repeat them in detail here.

4.In short, D1 and D2 were officers of the Correctional Services Department (CSD)  and were public officers.  At all material times, they were posted to Tong Fuk Correctional Institute (TFCI). Prisoners were assigned to work in different workshops during their remand, including the Construction and Maintenance Unit (CMO). D1 was the officer-in-charge of the CMO whilst D2 was D1’s assistant. D3, D4 and D5 were all prisoners in TFCI. At the time of the offences, D3 was still serving his sentence in TFCI whilst D4 and D5 had been released on 5 June 2020 and 3 September 2020 respectively. D3, D4 and D5 have all been assigned to work at the CMO under D1 and D2’s supervision over various periods.

5.Under the Prisons Ordinance and the Prison Rules, CSD officers were not allowed to bring any unauthorized items into prisons for transmission to prisoners. CSD officers were also prohibited from being friends or becoming too familiar with prisoners and former prisoners.  Further, CSD officers were prohibited from bringing their personal digital devices, including telephones into the prison area. Persons visiting prisoners were only allowed to bring authorized items, which did not include cigarettes or telephones.

6.The ICAC mounted a covert operation, where a micro audio recording device was planted on D1. Subsequently, the operation turned overt and all 5 defendants were arrested.

7.Cigarettes are valuable property in prison.  Prisoners can use their wages to purchase cigarettes through the arrangement of the CSD.  However, prisoners are restricted to only 2 brands of cigarettes, namely “Wealth” and “Gentori”. CSD officers are allowed to bring cigarettes into prison for their own consumption, except for the brands “Wealth” and “Gentori”. However, CSD officers are only allowed to smoke in designated areas outside the prison area and are not allowed to give any cigarettes to prisoners.

8.When D3 was intercepted inside TFCI, a number of prohibited articles were found in his possession, including a mobile telephone with a SIM card, lighters and unauthorized brands of cigarettes.

9.Under caution, D3 admitted that he had made the mobile telephone and had 2 SIM cards.  Investigation revealed that the 2 SIM cards were used to make thousands of telephone calls and send thousands of SMS messages to different people, including D4, D5, D3’s family and friends.

10.In the audio recording from the covert operation, D3 showed the mobile telephone to D1. D3 complained about the reception of one of the SIM cards and D1 promised to make enquiries on D1’s behalf from the service-providing companies. The audio recording from the service providers show that telephone calls were made from D1’s telephone to enquire about the reception of D3’s SIM card. A piece of paper was also found in D1’s home with the handwritten number of that SIM card.

11.Investigation also revealed that D4 had set up a WhatsApp chat group after his release from prison.  D2, D4 and D5 were all members of this chat group. In the chat group, D2, D4 and D5 spoke about the telephone calls they received from D3.  In September and October 2020, D3 often asked D5 to top up his telephone SIM cards.  During the same period, D3 also sent SMS messages to D5, asking him to tell D2 to purchase cigarettes for him. D5 then relayed all these messages to D2 in the WhatsApp chat group. D2 would inform D5 after he purchased the cigarettes.  D3 also asked D5 to tell D2 to purchase prepaid telephone SIM card.

12.In the chat group D4 asked D2 to tell D3 that D4 has dealt with $5,000 for D3. When D2 offered to tell D3 not to call, both D4 and D5 disagreed.  

13.The evidence showed that D2 had purchased cigarettes for D3.  D5 and his father had also topped up D3’s SIM card.  Messages were exchanged between D4 and D2 about the supply of cigarettes to D3 in the chat group.  D4 told D2 that he had 11 cartons of cigarettes for D3.  D2 promised to pass cigarettes to D3 whenever possible and told D4 that D3 was smoking e-cigarettes at the workshop.

THE DEFENDANTS’ BACKGROUND

D1

14.D1 is 47 years old and has a clear record. He joined the CSD in 1999 as an Assistant Officer II and was promoted to Assistant Officer I in 2019.  He was suspended from his duties after he was charged in the present case in 2021 and has been receiving about half his salary each month.

15.D1 is married and has a 12-year-old son. His wife was a flight attendant but she lost her job as a result of the pandemic. D1 and his wife have agreed to divorce in December 2024.

D3

16.D3 is 32 years old, single and educated up to Form 3 level. He has 3 previous convictions, all drug related. His last conviction was on 12 September 2012 for one count of possession of dangerous drugs and one count of trafficking in dangerous drugs. He was sentenced respectively to 15 months’ and 14 years’ imprisonment to be served concurrently. D3 was serving the above sentence when he committed the present offences.

D4

17.Counsel for D4 has not provided the Court with any personal details about D4 in his submissions. According to his antecedent statement, D4 is 40 years old and received education up to upper secondary level. He has 2 previous convictions, both related to drugs. His last conviction was on 1 August 2018 for Trafficking in Dangerous Drugs and he was sentenced to 5 years’ imprisonment. He committed Charge 2 shortly after he was released from prison.

18.According to a letter from D4’s parents, D4 is the fourth child out of 5 children from a working class family.  He had an electrician licence and used to work in a construction company.

LEGAL PRINCIPLES

19.The present case was brought and heard in the District Court.  The jurisdictional limit for sentence is 7 years’ imprisonment. There are no sentencing guidelines or tariffs. The sentence for each case depends on its own facts.

Cases Cited

20.The Prosecution referred the Court to the following cases:

(1)  HKSAR v Lee Ho Wai and Lam Hon Ki DCCC 299/2021;

(2)  HKSAR v Chow Koon Shing [2007] 3 HKLRD 10;

(3)  HKSAR v Chan Yee Lap [2019] 5 HKLRD 187; and

(4)  HKSAR v Tang Kwai Man and another HCMA 752/2012.

21.Apart from Tang Kwai Man (supra), Counsel for D1 also referred to Secretary for Justice v Shum Kwok Sher [2001] 3 HKLRD 386 and 香港特別行政區 訴 鄭俊傑 DCCC 1136/2021.

22.Other than HKSAR v Lee Ho Wai and Lam Hon Kei (supra), Counsel for D3 referred to:

(1)  R v Chan Wai Chiu & Ors [1994] 3 HKC 212;

(2)  HKSAR v Chui Sing Chi Grace [2020] HKCFA 27;

(3)  HKSAR v. Wong Koon Ho Titus HCMA 366/2013;

(4)  HKSAR v Lai Wing Kit & Au Pui Lan DCCC 409/2015;

(5)  HKSAR v Sin Kam Wah & Another CACC 520/2003;

(6)  HKSAR v. Yuen Wai Chong HCMA 201/2014; and

(7)  HKSAR v Chan Yee Lap CACC 202/2017.

23.Counsel for D4 referred to:

(1)  Secretary for Justice v Schmitt [2008] HKCU 979;

(2)  Secretary for Justice v Chan Kit Bing [2001] 1 HKLRD 844; and

(3)  HKSAR v Lam Ka Sin [2021] HKCA 180.

24.HKSAR v Lee Ho Wai and Lam Hon Kei are the reasons for sentence for D2 and D5 in the present case. This was provided to inform the Court how the other 2 defendants in the same case were dealt with by another Judge. I will deal with this further below.

25.Apart from HKSAR v Lee Ho Wai and Lam Hon Kei, 香港特別行政區訴鄭俊傑 and HKSAR v Lai Wing Kit & Au Pui Lan cited by the Defence are District Court cases. They not authorities and are not binding on this Court. These sentencing cases do not establish any sentencing principles. Moreover, the sentences in cases with completely different facts have no reference value to the Court.

26.In 律政司司長 對 唐健帮及另二人 CAAR 13/2022, [2023] HKCA 896, the Court of Appeal stated:

“35. 第一，雙方於本案存檔了多份區域法院的判刑理由書，希望藉此支持己方立場。本庭在 律政司司長訴溫達揚一案第27段已指出：

「…因為這些判刑，從來就沒有經過上訴而被肯定，也沒有什麼量刑原則可言，對量刑既沒有約束力也沒有參考價值，根本起不了任何指導作用，根本不應稱之為『案例』…」

況且，「有意圖而傷人」及「暴動/非法集結」罪的案情，以及某被告人的背景、犯案動機、於該案所扮演的角色等事項，可謂千變萬化，任何單純對案件判刑作出比較的做法，都不能協助本庭處理原審判刑是否恰當這個議題。歸根究底，控罪要旨（gravamen of the offence）及適用的量刑因素才是重點所在，而非個別案件的判刑。”

27.In HKSAR v Lau Chun Yuk and Others CACC 243/2021, [2023] HKCA 1098, the Court of Appeal specifically stressed yet again:

「51. Before we conclude, we would like to make a special mention. The applicants had, in their written submissions, cited the sentencing at first instance in another No. 2 Bridge riot case of the District Court (HKSAR v 陳起行 (Chan Hay Hang)  (transliteration)  [2021] HKDC 874)  as the pivot of the application of Choy Ka Fai in support of the proposition that the starting point in the present case was too high, but were ultimately dissuaded. This Court pointed out previously on many occasions, and further reiterated this year in Secretary for Justice v Tong Kin Pong and two others [2023] HKCA 896 (date of Reasons for Judgment: 25 August 2023): sentencing at first instance, which has not gone through appeal, is not binding on courts of the same level, nor is it of any reference value to the appellate court, and therefore should not be relied upon by the legal profession as a basis for appeal.」

D1

28.Counsel for D1 submitted that D1 has always strived to excel and complete his work in the CSD to the best of his ability. His performance was recognized by his supervisor and he was promoted to Assistant Officer I in 2019.

29.In HKSAR v Chow Koon Shing, the Court stated:

“23. … The Magistrate considered that to ensure public confidence in law enforcement officers was maintained, the courts must take a serious view of police officers who abused their positions. The Appellant, a formerly upstanding officer, had had a significant fall from grace. There was evidence of his good character before the court, but as the Appellant was a police officer that was neither surprising, nor of much mitigatory weight.

24. I share the view of the Magistrate that this was a serious offence; the Appellant abused his position as a police officer and committed the offence on magistracy premises …

26. The wilful misconduct in this case was “serious, not trivial, having regard to the responsibilities of the office and the office holder, the importance of the public objects which they served and the nature and extent of the departure from those responsibilities.” (Sin Kam Wah & Another and HKSAR [2005]2 HKLRD 375)

27. … his behaviour brings the police force into disrepute and, to the extent that the offence was carried out in the magistracy building, could affect also the public perception of the judicial system.”

30.In HKSAR v Chan Yee Lap, the Court of Appeal stated:

“23. … Institutions under the Correctional Services Department are set up to punish and educate inmates who have flouted the law, so that they will obey the law and observe discipline. It is imperative that the Correctional Services Department has a rigorous procedure in place to deal with visitors and prisoners’ property. The appellant conspired with a staff member of the Correctional Services Department and other inmates to strike at the established procedure of the Department by deceit …”.

31.Counsel submitted that D1’s marriage has deteriorated as a result of D1 being investigated by the ICAC. D1 and his wife agreed to divorce in December 2024.

32.The adverse effect of imprisonment upon an offender’s family is not a factor normally to be taken into account in sentence. In Sentencing in Hong Kong, 11^th edition, the author explained:

“[30-130] Family circumstances are often prayed in aid in mitigation by convicted persons. However, ‘family hardship which is usually attendant upon the conviction is to be viewed as a part of the price an accused must pay for the crime’: HKSAR v Li Kwok-ching [2005] HKCU 1702 (HCMA 1132/2005, 30 November 2005, unreported). Those who commit offences should keep in mind the ‘principle that the adverse effect of imprisonment upon an offender’s family is not a factor normally to be taken into account: HKSAR v Chan Kin-chung [2002] 4 HKC 314, 321. Family circumstances, in any event, ‘are matters which a wise man would take into consideration before he commits an offence and not after’: HKSAR v To Yiu-cho [2009] 5 HKLRD 309, 311….

[30-131] An accused must appreciate that his family will suffer ‘if he is caught and convicted’: R v Shipra [1988] HKC 412 … If the accused is convicted and sentenced as a rapist this may have unfortunate consequences for his family, but ‘this is often the tragedy in such cases’: HKSAR v Chan Tung-hing, Band [2010] 3 HKC 304, 307; HKSAR v CYL [2016] 3 HKC 531, 537. In HKSAR v Shum Chung-wai [2002] 2 HKLRD 81, 87, Lugar-Mawson J said: ‘This court has said many times that family circumstances should be disregarded, particularly when sentences for serious offences are concerned’…

[30-132] if police officers commit serious offences, the gravity of their conduct may outweigh any sympathy the court may feel for their families: HKSAR v Lau Kwok and Ors [2003] HKCU 615 (CACC 529/2001, 30 May 2003, unreported). … If serious crime is involved, personal factors may have to be disregarded: Attorney General v Chan Chi Mei-wah [1990] 1 HKLR 190, 193…”

33.Counsel further submitted that D1 was suspended from his job duties since he was charged in 2021 and has only been receiving half of his salary.  His wife, who was a flight attendant, lost her job as a result of the pandemic. D1 found himself emotionally disturbed and consulted psychiatrists for treatment. In July 2021, he was diagnosed to be suffering from Adjustment Disorder with Depressive Symptoms, with low mood, anxiety, worsened sleep and appetite, negative cognitions and fleeting suicide ideas. The conclusion was that D1’s mental problem was due to his being charged by the ICAC and the impact on his family.

34.In Court, Counsel conceded that ill health is not a mitigating factor.  In Sentencing in Hong Kong, 11^th edition it was explained:

“[30-174] The ill health of an accused ‘is not a license to commit crime’: Clarkson v R (2007)  171 A Crim R 1, 49.

[30-175] In Yip Kai-foon v HKSAR [2000] 1 HKC 335, 339 …, Li CJ said: ‘Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity’.…

[30-176] The objective criminality of particular offences will often be such that the sentence of imprisonment which is otherwise appropriate is necessary irrespective of health factors: HKSAR v Tong Fuk-sing [1999] 3 HKC 332, 336 … The Correctional Services Department operates ‘excellent’ medical facilities: HKSAR v Wong Chi-choi [2005] HKCU 1443 (HCMA 628/2005, 6 October 2005, unreported). In HKSAR v Woo Shun-cheong and Anor [1998] HKCU 2082 (CACC 120/1998, 10 December 1998, unreported), an aged offender who complained of ill health was told that his condition could be ‘adequately dealt with in prison’.

[30-177] In HKSAR v Tam Yuen-tong [2007] 1 HKLRD 894, 896 …, McMahon J made the point that ‘as a matter of reality most prisoners receive medical attention in prison of an equal or better standard than they would otherwise receive’. In HKSAR v Chan Kau-tai [2008] 3 HKC 78, 89 …, it was noted that the accused who needed a liver transplant was being attended to in the custodial ward at Queen Mary Hospital and was ‘in good hands’. Save in the rarest of cases, a ‘prisoner’s medical condition is not a matter to which this court will have regard for mitigation of a proper sentence’: R v Ho Mei-Lin [1996] 4 HKC 491, 493 …

[30-180] In Attorney General v So Chee-kong, Eddie [1994] HKCU 75 (CAAR 9/1992, 8 June 1994, unreported), the court, having been told that if the sentence of the accused was to be extended his mental health would suffer, responded that ‘it would not, we are satisfied, be proper for us to give weight to possible deterioration in his health. It is a matter for the Prison Authorities to see that he receives proper medical attention’ (approved in HKSAR v Cheung Suet-ting [2010] 6 HKC 249, 261). Matters of that type do not fall for consideration as an act of mercy: HKSAR v Lau Mei-mei [2002] HKCU 240 (CACC 338/2001, 1 March 2002, unreported)  …”

35.Counsel also submitted that D1 has been a law-abiding citizen for 47 years and has a clear record.

36.D1 is only 47 and can hardly be described as old. In Sentencing in Hong Kong, 11^th edition, it was explained:

“[30-32] The point at which the maturity of the accused is relevant as mitigation is sometimes said to have been reached at the age of 60: R v Tsui Lai-ying and Ors [1987] 5 HKLR 857, 881… However, in HKSAR v Chow Chi-ming [2006] HKCU 398 (HCMA 1247/2005, 21 February 2006, unreported), Leong DJ said it was generally accepted that ‘old age, unless extremely advanced in age, is generally not a mitigating factor’. In HKSAR v Lau Yuk-huen [2008] HKCU 864 (CACC 37/2008, 5 June 2008, unreported), it was said that the 66-year-old accused was not to be regarded as old.”

37.As for D1’s clear record, Sentencing in Hong Kong, 11^th Edition stated:

“[7-5] In R v Chan Ka-choi [1988] 1 HKLR 530, 534 … the traditional approach of the courts to the issue of clear record was explained:

Once the offender has been found guilty of the offence, the court must, leaving aside personal circumstances and previous record, make an assessment as to the proper sentence to be imposed given the type of offence and the circumstances of its commission. When this has been done, the court must give credit for absence of previous convictions and for personal circumstances.

[7-6] Credit for a clear record is, however, by no means a given. Much will depend upon the nature of the offence and the position of the offender. In HKSAR v Law Num-chun [2014] 6 HKC 606, 617, Lunn VP said:

[T]he principle is that good character is not a factor relevant generally to determining the starting point to be taken for sentence in serious criminal offences for which a deterrent sentence is required.…

[7-10] The good character of the accused is, moreover, of little relevance if the offence involves corruption: HKSAR v Wong Yiu-kuen [2001] 1 HKC 486, 491. In R v Dearnley and Treapleton [2001] 2 Cr App R (S)  201, 203, the point was made that corrupt officials will invariably be of good character, for if it were otherwise, they would ‘not be in a position from which to behave in a fashion which strikes at the principle of fair competition’. …

[7-18] The relevance of good character is related to the circumstances of the accused. Good character sometimes refers to no more than an absence of previous convictions, and this is not a basis for an additional discount: HKSAR v Wong Kam-shing, Jackie [2010] 4 HKC 580, 584. At other times, it may refer to something altogether more positive. Good character can be recognized as a factor in mitigation ‘where positive good character is shown by, for example, the provision of unpaid service to the community, as opposed merely to the absence of a criminal record’: Secretary for Justice v Tso Tsz-kin [2004] 2 HKC 139, 144. The mere absence of criminal convictions must not be confused with positive good character, and the simple discharge of duties in a proper manner ‘does not constitute what is to be regarded as positive good character’: HKSAR v Leung Ping-nam [2007] 5 HKC 413, 427; HKSAR v Chung Ka-hung [2010] HKCU 738 (CACC 349/2008, 31 March 2010, unreported). …

[7-26] The proposition is sometimes advanced that a deterrent sentence ought not to be imposed upon a first offender: Ho Kau v R [1978] HKLR 197, 198 … However, in HKSAR v Tai Chi-sing and Ors [2016] 2 HKC 436, 445, Barnes J said: ‘I do not accept that there is such a sentencing practice that a deterrent sentence should not be passed on a man of clear record. Whether a deterrent sentence is called for, even for a first offender, must be case specific’. In HKSAR v Chan Chi-ming and Anor [2003] 3 HKLRD 654, 657 …, the court said:

It is generally true that wherever possible a court will strive to avoid imposing a sentence of deterrence upon a first offender. That is because it can be said of many mature first offenders particularly that their transgressions went against the grain of their previous lives.

[7-27] However, the existence of a clear record in a sufficiently serious case can never of itself be enough to save an accused from an immediate sentence of imprisonment: Securities and Futures Commission v Choy Wai-zak [2003] 1 HKC 30, 35. … In other words, previous good character is not a bar to the imposition of a deterrent sentence if the gravity of the offence justifies it: HKSAR v Chan Mo-kong [1998] 1 HKLRD 678, 680 …”

38.Counsel relied on Secretary for Justice v Shum Kwok Sher [2001] 3 HKLRD 386 and pointed out that D1 would lose his retirement gratuity and pension of about HKD 3 million and would also face a disciplinary hearing. In that case, the defendant was a senior public servant.  He used his position to provide preferential treatment in the award of valuable Government contracts to companies owned by his extended family. He was sentenced to 4 concurrent sentences of 9 months’ imprisonment.  The Government sought a review of the sentence, claiming that the Judge had taken into account irrelevant mitigation and that he erred in equating the defendant’s conduct to “small scale corruption”. The Court of Appeal stated that the appropriate sentence should have been not less than 3 years:

“39. Dealing firstly with … somewhat muted criticism of the judge for giving any weight to the Respondent's lost retirement benefits and to the sad results of the fall from grace suffered by all his family, we consider that the unusual circumstances of the case were such that they inevitably contributed to the punishment received by the Respondent. Accordingly, in our view the judge was right to have taken these factors into account, provided they were not given too much weight. The Respondent knew what he was doing and for many years he took a calculated risk that he would not be found out which, in the end, did not pay off.

40. As to other criticisms of the sentencing remarks, we consider that these had merit. The offences may not have resulted in the Government's financial loss but the Respondent's favouritism effectively cut out properly qualified companies from acquiring the contracts which, as a result, will have lost considerably when their tenders for the work were rejected. It was also beside the point that the Respondent did not benefit financially. If he had done so, an additional or replacement offence would have presumably been brought under section 4 of the Prevention of Bribery Ordinance which is not what the Respondent was being sentenced for. …”

39.In assessing sentence, I will bear in mind that D1 may face a disciplinary hearing, as a result of which, he may lose his job and pension.  However, the consequences of committing this offence were obvious.  However, D1 took a calculated risk that he would not be found out, a risk which did not pay off in the end.  The loss of his job and his pension carries limited weight in mitigation.

40.Counsel also cited 香港特別行政區訴鄭俊傑. The defendant was convicted of one charge of misconduct in public office after trial. He provided preferential treatment by awarding Government contracts to a company owned by his extended family.  Counsel submitted that the Deputy Judge considered a suspended sentence as a viable sentencing option although the defendant was convicted after trial.  The Deputy Judge stated that the Defendant was convicted 5 years after the commission of the offence; he was suffering from mental illness; he had a clear record; the risk of reoffending was low; the defendant had made considerable contributions to the Hong Kong Post and the defendant had no financial gain.

41.Counsel submitted that the background of the defendant in that case bears “assemblance” to D1 in the present case.  Firstly, as stated above, this was a District Court case.  It is not an authority and is not binding on this Court.  Secondly, the facts of that case are very different from the present case. Thirdly, as was pointed out above, the Court must assess the sentence according to the gravamen of the offence. The background of the defendant carries little weight when the court is dealing with serious offences. I have already dealt with the law in relation to a clear record, ill health, the impact of the sentence on the defendant’s family and the absence of financial gain above. I will not repeat them here.

42.As for the lapse of time between the commission of the offence and conviction, I recognize that a delay in bringing an accused to justice is normally recognized as a mitigating factor that can be taken into account in sentence: Mills v HM Advocate General for Scotland 2002 SCR 860, 877. However, as was stated in Sentencing in Hong Kong, 11th edition:

“[30-84] This usually arises where the prosecution is at fault for the delay: HKSAR v Lau Kin-yu [2003] HKCU 251 (HCMA 391/2002, 13 March 2003, unreported). Such a delay might cause the accused to be ‘under the strain of legal proceedings for a very long time’: Attorney General v Ling Kar-fai (No.2) [1997] 2 HKC 651, 654. If the accused is himself responsible for the delay, he cannot expect to benefit: HKSAR v Chan Chun-chuen (CACC 233/2015, 30 October 2015, unreported).

[30-85] In Secretary for Justice v Schmitt [2008] HKCU 979 (CAAR 12/2006, 17 June 2008, unreported). Stuart-Moore VP noted that there is a delay in every case before trial, and that the ‘real question is whether there has been an unreasonable delay, through the fault of a defendant, which has contributed to his punishment’. The court will also need to be satisfied that the delay has ‘resulted in unfairness to the accused’: R v L (1995)  84 A Crim R 142, 145. If there is a delay resulting from a very extensive (and necessary)  investigation, the accused cannot expect to benefit therefrom: Secretary for Justice v Ip Hon-ming and Anor [2015] 1 HKC 143, 168.

[30-86] In HKSAR v Law King-yip and Ors [2004] HKCU 1391 (CACC 369/2003, 14 October 2004, unreported), (as approved in HKSAR v Cheung Suen-ting [2010] 6 HKC 249, 257), complaint was made, by one of several persons convicted of conspiracy to defraud, about the delay of over 30 months between the dates of arrest and trial. It was further argued that the trial of 108 hearing days had constituted an additional hardship, ‘worse’, so it was said, ‘than prison’. In rejecting these factors as mitigation, the court commented that the delay had to be viewed in the context of the size of the investigation that the police had to conduct. The conspiracy had lasted for more than a year, there were many victims, expert witnesses had to be consulted, and the prosecution was not at fault for the delay. The trial has been listed for 20 days, but overran because the defense had rigorously contested the case. In these circumstances, Lunn J said the court was satisfied that ‘neither the delay in the commencement of proceedings nor the length of the trial itself are factors relevant to the sentence imposed’.

[30-95] In Scook v R (2008)  185 A. Crim R 164, 176 …, Buss JA sought to identify the ‘guiding principles’ in relation to delay, although these were not intended to be ‘exhaustive or inflexible’; these were cited with approval in HKSAR v Chui Chi-wing [2013] HKCU 2420)  (CACC 243/2012, 18 October 2013, unreported), His Honour identified seven matters as being of relevance:

First, the delay is not, of itself, a mitigating factor.

Secondly, delay will not ordinarily be a mitigating factor if it has been caused by difficulties in detecting, investigating or proving the offences committed by the offender, and the period of the delay is reasonable in the circumstances.

Thirdly, delay will not ordinarily be a mitigating factor if it is caused by the offender’s obstruction or lack of cooperation with the State, prosecuting authorities, or investigatory bodies, but the offender’s reliance on his or her legal rights is not obstruction or lack of cooperation for this purpose.

Fourthly, delay will not ordinarily be a mitigating factor if it results from the normal operation of the criminal justice system, including delay as a result of the offender or a co-offender exercising his or her rights; for example, interlocutory appeals and other interlocutory processes,

Fifthly, delay may be conducive to the emergence of mitigating factors; for example, if, during the period of delay, the offender has made progress towards rehabilitation or other circumstances favorable to him or her have emerged.

Sixthly, delay (not being delay of the kind described in the second, third and fourth guiding principles)  will ordinarily be a mitigating factor if:

(1)  the delay had resulted in significant stress for the offender or left him or her, to a significant degree, ‘in uncertain suspense’; or

(2)  during the period of delay the offender has adopted a reasonable expectation that he or she would not be charged, or a pending prosecution would not proceed, and the offender has ordered his or her affairs on the faith of that expectation,

Seventhly, delay caused by dilatory or neglectful conduct by the State, prosecuting authorities or investigatory bodies may result in a discount of the sentence that would otherwise be imposed on the offender, if the court thinks it an appropriate means of marking its disapproval of the conduct in question.

43.There is no suggestion that there was any delay in the arrest or the prosecution of D1 in the present case. The trial spanned a very lengthy period because of the Defence’s complaint about Mr Li Siu On.  This was completely unforeseeable.  The prosecution offered 4 witnesses for cross-examination in relation to the complaint to enable the Defence to consider their position in relation to the potential application for a permanent stay and to ensure that the defendants had a fair trial.  The case was repeatedly adjourned because of the ill health of Mr Li Siu On (the subject of the complaint). However, his absences were all supported by medical certificates. It also took time to hear and decide on the subsequent application for permanent stay. There was clearly no unreasonable delay in the present case.

44.Lastly, counsel cited HKSAR v Tang Kwai Man:

(1)  The 2 appellants were CSD officers who were charged with one count of misconduct in public office. They were responsible for the supervision of some inmates who had been released from the drug addiction treatment center;

(2)  The first appellant had (i)  failed to visit some inmates at their homes or work places as stated on the corresponding records of supervision; (ii)  absented himself when some inmates provided their urine samples; (iii)  submitted records of supervision with incorrect dates, times, places and/or participating officers and (iv)  failed to record in the records of supervision that an inmate had admitted to taking drugs;

(3)  The 2^nd appellant had (i)  failed to visit some of the inmates at their homes or workplaces as stated in the records of supervision; (ii)  absented himself when some of the inmates provided their urine samples; (iii)  failed to deliver the urine samples provided by some inmates for drug examination; (iv)  submitted the records of supervision with incorrect dates, times, places and/or participating officers; and failed to record in the records of supervision when one of the inmates admitted that he had taken dangerous drugs;

(4)  Each of the appellants was charged with one count of misconduct in public office. They both pleaded guilty and the magistrate sentenced each appellant to 3 months’ imprisonment. The appellants appealed against that sentence. The appeal was dismissed.

45.Counsel submitted that the gravity of misconduct in Tang Kwai Man was more considerable than the present case. D1 did not make a profit from the offence and it was a one-off incident.

46.I disagree. Firstly, the facts of Tang Kwai Man are very different from those of the present case. In those circumstances, the sentence in that case is not a reference for the sentence in the present case.  Further, there are marked differences between Tang Kwai Man and the present case:

(1)  The appellants in Tang Kwai Man were responsible for the supervision of inmates who served their sentences in the drug addiction treatment center. In other words, those inmates have been convicted of relatively minor offences. In the present case, D3 was serving a 14 years’ prison sentence for trafficking in dangerous drugs;

(2)  In Tang Kwai Man, all the inmates have finished serving their sentence. In the present case, D3 was a serving prisoner;

(3)  The purpose of supervision after release from a drug addiction treatment center was rehabilitation. The purpose in prison was punishment and education to obey the law;

(4)  Each of the appellants faced a charge on their own. In the present case, not only was there a conspiracy, the co-conspirator was a serving prisoner;

(5)  In Tang Kwai Man case, the offences were committed in the open community whilst the offence in the present case was committed inside the prison.

47.I note that D2 in the present case was also a CSD officer and that the learned Judge adopted 12 months as a starting point.

48.Firstly, D1 and D2 faced different charges and the facts against them are different. The learned Judge came to the conclusion that the facts relating to D2 came within the lower end of the spectrum in relation to the offence of misconduct in public office. In assessing sentence, the learned Judge considered a number of cases cited to him. None of the cases cited to the learned Judge involved a telephone. It does not appear that the learned Judge has been addressed on the significance of a prisoner being in possession of a telephone inside prison.

49.In my judgment, the wilful misconduct of which D1 stands convicted in the present case was serious, not trivial:

(1)  As was stated in Chan Yee Lap, institutions under the CSD are set up to punish and educate inmates who have flouted the law, so that they will obey the law and observe discipline. The behaviour of D1 makes a mockery of the prison system and brings the CSD into disrepute;

(2)  Instead of punishing and educating D3, D1 conspired with D3 to flout the law inside prison;

(3)  As a CSD officer, D1 was entrusted with the duty to supervise and discipline prisoners. His behaviour was in breach of the trust reposed in him by the CSD;

(4)  There is no dispute that D1 was the officer-in-charge of the CMO. He was of a more senior rank than D2;

(5)  Not only did D1 allow D3 to continue with the possession and use of the telephone, he took active steps in an attempt to enhance the use of the telephone;

(6)  The offence was committed inside prison;

(7)  Telephones are prohibited in prisons for a number of reasons:

(i)  the possession and use of a telephone by prisoners posed a security risk to the prison;

(ii)  convicted persons are remanded in prison so that they can cut ties with bad elements in society. The possession and use of a telephone inside prison completely defeats that purpose;

(iii)  telephone calls inside prison are arranged by the CSD and are monitored to ensure that prisoners are not continuing with their criminal activities. The possession and use of a telephone by a prisoner inside prison makes a mockery of that system;

(iv)  D3 was serving 14 years’ imprisonment for trafficking in dangerous drugs.

(8)  D1 has not demonstrated an iota of remorse for committing the offence. When he was arrested by the ICAC, he instructed his helper to destroy or dispose of all his digital devices in an attempt to obstruct the investigation. He was convicted after trial. After conviction for Charge 1, he still fails to take accountability of his own criminal behaviour. He is blaming the failure of his marriage and the possible loss of his employment, gratuity and pension on the ICAC investigation;

(9)  I do not accept that this was a one-off incident. In the audio recording, although D1 was surprised by the miniature size of the telephone, he clearly knew that D3 had a telephone prior to the recorded conversation. D3 did not even have to tell D1 that he had a telephone. He only complained about the reception.

50.Counsel relied on鄭俊傑 and suggested that this Court could consider a suspended sentence. That suggestion is wholly untenable. That was a sentencing case in the District Court. It is not binding on this Court, does not lay down any sentencing principles and the facts are entirely different. In Sentencing in Hong Kong 11^th edition, it was explained:

“[1-108] The position of the offender can have a direct impact upon sentence in some circumstances. The culpability of an offender from a good background may be regarded ‘as the greater particularly if he is a person to whom others look for an example’: Attorney General v Chan Chi-yin and Anor [1988] HKC 44, 46. Professional people have a duty to uphold public standards as well as the standards of their profession: Attorney General v Tai Chin-wah [1994] 2 HKCLR 81, 93. A breach of trust by a person in authority may require a deterrent sentence: R v Kwok Yee, William (CACC 452/1993, 4 March 1994, unreported).

[1-109] In HKSAR v Leung Chun-man (CACC 156/2003, 17 October 2003, unreported), a serving police officer was sentenced to 21 months’ imprisonment for corruption offences. Cheung JA said ‘For a public servant who was responsible for the enforcement of law and order in Hong Kong, his involvement with these offences are clearly aggravating factors’.

[1-110] In HKSAR v Hui Man-tai [2008] HKCU 1135 (CACC 334/2007, 22 July 2008, unreported), it was said that police officers who break the laws they are entrusted to uphold have ‘to be made examples in terms of deterrent sentencing so that others will not be tempted to follow along similar lines and so that public confidence will be maintained’. Those who are entrusted to uphold the law but break it in ‘a deliberate and shocking way’, must expect ‘an immediate sentence of imprisonment’: HKSAR v Wong Cho-shing and Ors [2019] 4 HKC 401 …. It is, moreover, an aggravating factor for a serving police officer to commit serious offences while acting in the course of his duty: HKSAR v Yuen Ka-kui, Chris [2013] 5 HKC 64. …”

51.In my judgment and taking into account the possibility of a loss of gratuity and pension, the appropriate starting point for D1 in Charge 1 is 18 months’ imprisonment.

52.D1 was convicted after trial and has not shown a shred of remorse. As explained above, nothing put forward on his behalf amounts to mitigation. Accordingly, he is sentenced to 18 months’ imprisonment for Charge 1.

D3

53.Counsel cited a number of cases involving misconduct in public office. As stated above, Lai Wing Kit was a District Court case and is not binding on this court. The facts of all of the cases are wholly different from those of the present case. The charges in Chui Sing Chi Grace, 黃冠豪, Sin Kam Wah and 袁慧妝 were not conspiracy. Chan Yee Lap involved conspiracies but none of the cases cited involved a telephone. I did not find any of the cases cited to be of any assistance. 

54.Counsel drew the Court’s attention to the sentence of D2 and D5 and that the Court found that Charge 2 was a relatively minor category within the spectrum of the offence of misconduct in public office. She also relied on R v Chan Wai Chiu in relation to disparity of sentences. She submitted that the actual charge was misconduct in public office which was committed by D1 and D2. D3 was in a passive position and his culpability should be regarded as lower than that of D1 and D2 as he was only a prisoner and had no authority over D1 and D2. Counsel further submitted that no detriment is suffered by any victim and the chance of reoffending is remote.

55.I agree with the principles in relation to the disparity of sentences but I wholly disagree with Counsel’s submissions:

(1)  As explained above, I take a very serious view of a prisoner’s possession and use of a telephone in prison. It posed a risk to security of the prison and makes a complete mockery of the prison system;

(2)  Charges 1 and 2 are not misconduct in public office. It is conspiracy to commit misconduct in public office. That misconduct in public office involves a breach of trust on the part of D1 and D2 and adversely affects public confidence in the prison system;

(3)  There were two conspiracies in the present case; D1 and D2 were each part of one of the conspiracies, whilst D3 was part of both conspiracies;

(4)  Theoretically, D1 and D2 had authority over D3. However, in the present case, they actually became D3’s willing servants, catering to D3’s whims and demands;

(5)  Not only did D3 involve 2 CSD officers, he also involved 2 other prisoners who have just finished serving their prison sentences;

(6)  D3 was the instigator of both conspiracies. He constructed the telephone; had 2 SIM cards brought into prison for his use; used the telephone to give instructions to D4 and D5, who in turn passed on instructions to D2; gave instructions to D1 to check his telephone reception and to try to improve the same and used the telephone to place bets and obtain Mark 6 results. In other words, D3 was calling all the shots and was the mastermind of both conspiracies;

(7)  D3 committed 2 offences whereas each of the other defendants only committed one offence;

(8)  D3 flouted the law whilst serving a long term imprisonment for serious offences;

(9)  D1 and D2 are likely to lose their jobs, gratuity and/pensions. D3 has no such loss.

56.In my judgment, in view of D3’s role, his culpability for Charge 1 is at least equal to that of D1 and is even graver than that of D2.  For each of Charges 1 and 2, I adopt a starting point of 18 months.

57.D3 was convicted of both charges after trial. He has not demonstrated any remorse. There are no mitigating circumstances. The sentence of each of Charges 1 and 2 is 18 months.

58.I note that both conspiracies were carried out by D3 in tandem, at the same time and in the same location. However, the conspiracies are distinct and involve different people; the sentences should be wholly consecutive. However, I must consider the question of totality. Concurrent sentences are only appropriate for offences that can be said to have been committed in the course of a single transaction: Attorney General v Cheung Pit Yiu [1989] 2 HKLR 12, 14. If offences are discrete and independent, it is more likely that ‘the sentence for one offence cannot comprehend the criminality of the other’: Vaovasa v R (2007)  174 A Crim R 121.  Commission of multiple offences is an aggravating factor and make the charges more serious: See HKSAR v Ngai Yiu Ching [2011] 6 HKC 238. 

59.In the light of the facts of the present case, I am of the view that an overall sentence of 24 months is appropriate. Accordingly, I order that 6 months of the sentence in Charge 2 be served consecutively to the sentence for Charge 1, i.e. an overall sentence of 24 months.

D4

60.Counsel cited Secretary for Justice v Schmitt and urged the Court to consider the time it took for the trial to conclude. I have already dealt with this case above. There was no unreasonable delay in the present case. 

61.Counsel then repeated parts of the messages between the Defendants and submitted that D4 played a very minor or peripheral role in the conspiracy. I disagree with that submission. It was D4 who set up the WhatsApp group to facilitate the execution of the conspiracy. When D2 offered to ask D3 to stop calling D4 and D5, D4 refused the offer. D4 took care of $5,000 for D3; he also asked D2 to bring cigarettes into prison for D3. D4 told D2 that he had 11 cartons of cigarettes for D2 to pass on to D3. 

62.Counsel cited Secretary for Justice v Chan Kit Bing [2001] 1 HKLRD 844. He submitted that D4 has positively organized his affairs, has been employed in several construction projects with a view to rehabilitating himself back into society before this offence; he was also a charitable and hardworking man.

63.Counsel’s submission is self-contradictory. On the one hand, he submitted that D4 was determined to rehabilitate himself. On the other hand, he stated that D4 was trying very hard to hold on to his friendship with D3 and D5. There is no dispute that D4 was discharged from prison on 6 May 2020. He set up the WhatsApp group to facilitate the conspiracy on 4 September 2020, i.e. within about 4 months of his release. I also do not accept that D4 donated to charity. Letters were produced by World Vision to show that the charity received donations in D4’s name between 2017 and 2023. According to his criminal record, D4 was serving a 5-year prison term from 1 August 2018. He could not have made the donations from 2018 to 2020.

64.Counsel also referred to paragraph 31 of HKSAR v Lam Ka Sin [2021] HKCA 180:

“There is an element of compassion when addressing the object of rehabilitation, and this is normally displayed by the recognition of the suffering or misfortune of an offender. However, the offender must have shown that he has dissociated himself from his past wrongful conduct, and has committed himself to the future respect of the law. Where an offender has reformed and is not likely to reoffend, he is deserving of a sentencing option or measure that is appropriate for the category of the offence, and that also provides the means for his rehabilitation.”

65.Counsel has not provided the Court with a copy of that authority. In fact, the facts in that case are very different from the present case. In that case, the 25-year-old appellant pleaded guilty to conspiring to launder the proceeds of an indictable offence by lending her bank account to an acquaintance, Ah Fei, to bank a cheque of $1.1 million. She was to be paid $10,000, but she knew no other details. Ah Fei passed her a cheque and told her to deposit it, and immediately cash it at the bank.  She did so but the bank staff refused to process the cheque because the particulars on the cheque had been poorly written. She returned the cheque to Ah Fei and the appellant took no further part in transacting the cheque and received no reward. The appellant committed the offence in January 2016 and was arrested and released on police bail in December of that year. On 27 January 2017, the appellant was sentenced to attend a Drug Addiction Treatment Centre following her conviction for possession of a dangerous drug. On 23 February 2018, she was rearrested for the conspiracy to launder money. On 30 May 2018, the appellant gave birth to a son. In November 2019, she was sentenced to 1 year and 10 months’ imprisonment for the conspiracy to launder money, with the sentencing judge adopting a starting point of 2 years and 9 months’ imprisonment and reducing it by one-third for the guilty plea. She had served 11 months of her sentence and cared for her son whilst in prison by the time her appeal against sentence was heard. The Court of Appeal held:

(1)  There was a distinction, although there might be some overlap, between extending mercy to an offender when sentencing and applying sentencing principles to achieve individual justice. The exercise of mercy when sentencing an offender must be done in the context of a balanced approach. Mercy must be exercised by considerations which were supported by evidence and by having proper regard to essential sentencing principle and policy so as not to render a merciful sentence into an inappropriate one …

(2)  As a general rule, persons convicted of money laundering, even if they were first offenders, should be sentenced to a term of immediate imprisonment. … Deterrence was paramount, given the encouragement and nourishment money laundering gave to crime in general …

(3)  Where there were present circumstances that justified the sentencing court taking a lenient approach, the means by which this should be achieved was by reducing the starting point that would otherwise be appropriate for the gravity of the offending. There might be cases where a sentencing court was satisfied there were present ‘exceptional circumstances’ to warrant consideration of alternative sentencing options. The concept of ‘exceptional circumstances’ for the purposes of suspending a sentence of imprisonment, was wide enough to allow a sentencing court to take into account all relevant circumstances surrounding the offence, the offender and the background. Accordingly, ‘exceptional circumstances’ might arise because of the prominent effect of an individual factor or the cumulative effect of several factors, but whatever the situation, it required taking an overall or holistic view of the case. …

(4)  The facts and circumstances of the present case highlighted the importance of individual justice when sentencing an offender. The classical principles of sentencing had been characterised by the objects of retribution, deterrence, prevention and rehabilitation. It would depend on the particular circumstances of the offence and the offender which of these objects applied and to what level and degree. There was a tendency when sentencing offenders for serious crime to place emphasis on deterrence, for the very important primary object of protecting the community, but rehabilitation should not be overlooked, particularly when the circumstances of the case cried out for a more individualised sentence. The sentence a court imposed must carefully be moulded not only to the category of the offence but to the offender. There would be cases, because of the gravity of the offence and the culpability of the offender, where little if any weight was given to mitigating factors that would otherwise be taken into account. But there was also a need for individual justice in such a case. Rehabilitation as an object of sentencing was aimed at the renunciation by the offender of his wrongdoing and past misdeeds and his establishment or re-establishment as a law-abiding citizen. The ultimate object of the courts was to fashion sentencing measures designed to bring back into the fold an offender as a law-abiding citizen wherever such measures were consistent and compatible with the primary object of the criminal law which was the protection of the community. There was an element of compassion when addressing the object of rehabilitation, and this was normally displayed by the recognition of the suffering or misfortune of an offender. However, the offender must have shown that he had dissociated himself from his past wrongful conduct, and had committed himself to the future respect of the law. Where an offender had reformed and was not likely to reoffend, he was deserving of a sentencing option or measure that was appropriate for the category of the offence, and that also provided the means for his rehabilitation.

(5)  The appropriate starting point in the appellant’s case was one of 24 months’ imprisonment. Insufficient account was given to the circumstances of the offence and to the personal background and mitigation of this appellant. This had a bearing on the gravity of the offence and the culpability of the appellant as well as revealing ‘exceptional circumstances’ that warranted consideration of the range of sentencing options or measures that would appropriately address individual justice. The appellant agreed to process a cheque through her bank account for a fee; this was to be a single transaction. She withdrew from the arrangement after it did not go through and had no further involvement in the matter. Her withdrawal from the arrangement provided strong support that she, a person in vulnerable state, was forced to go through it. Where a person agreed to engage in criminal conduct but because of some reason or intervening factor decided not to continue to be involved, this was a matter that clearly reflected on the gravity of the offence and the culpability of the offender. The appellant’s personal circumstances and factual circumstances of her involvement in the offence were not properly evaluated and the judge therefore erred in imposing a high and inappropriate starting point. …

(6)  There were present in this case ‘exceptional circumstances’ that warranted consideration as to whether the sentence should be suspended in accordance with s 109B(1)  of the Criminal Procedure Ordinance (Cap. 221). The ‘exceptional circumstances’ in this case were a culmination of the following matters: (i)  the events leading up to and surrounding the offence and the fact that the appellant withdrew from the arrangement (even though this also reflected on the gravity of the offence and the culpability of the appellant); (ii)  the appellant’s age and personal circumstances and her vulnerability to exploitation by others; (iii)  the birth of the appellant’s child and the change of her lifestyle and attitude in a positive and responsible way in the prolonged period after the offence; and (iv)  the appellant’s renunciation of her wrongdoing and past misdeeds and the reformation of her character and commitment to pursuing a law-abiding life.

66.It is apparent that none of the ‘exceptional circumstances’ mentioned by the Court of Appeal are present here. The Defendant is 40 years old. He took active part in the conspiracy until he was arrested by the ICAC. The letter from the IRD showed that D4 has failed to pay his tax on time. The total amount of tax payable for 2 financial years was $54,634 (ie $27,317 per annum). This does not demonstrate that D4 has earned several hundred thousands of dollars in both years as alleged.

67.In Sentencing in Hong Kong 11^th edition, it was stated:

‘[30-80] If an accused with a criminal record has ‘gone straight’ for a long time prior to his conviction, this may tell in his favour: HKSAR v Wu Yee-ki [2006] HKCU 1100 (CACC 513/2005, 30 June 2006, unreported). This is because a change in lifestyle can provide ‘compelling evidence of insight and remorse’: R v McGeogh [2011] NICC 16, …

[30-81] In R v Thomas (1994)  16 Cr App R (S)  616, 620, it was said that, as the conviction of the accused was in the distant past, the court could treat his latest transgression as ‘an isolated offence’. In HKSAR v Chan Hong (HCMA 1255/2001, 21 December 2001, unreported), reference was made in the calculation of sentence to the accused’s ‘apparently successful endeavors in leading a significantly reformed life over the past 17 years.’

[30-403] In HKSAR v Lam Ka-sin [2021] 2 HKC 493, …, Zervos JA said that ‘where a person agrees to engage in criminal conduct but because of some reason or intervening factor decides not to continue to be involved, this is a matter that clearly reflects on the gravity of the offence and the culpability of the offender’. If an accused has withdrawn from a criminal enterprise, he should do something tangible to demonstrate it. …”

68.As stated above, the offence is a serious one.  Bearing in mind D4’s relatively minor role compared to D1 and D3, I am of the view that the appropriate starting point for D4 is 9 months’ imprisonment. He was convicted after trial and is not entitled to the discount for a plea.  There are no other mitigating factors. D4 is sentenced to 9 months.