The Attorney General v. Fung Chi-ning

CAAR000021/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 21 OF 1975

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Coram: Briggs, C.J., McMullin & Leonard, JJ.

Date of Judgment: 11th September, 1975.

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JUDGMENT

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1. The respondent in this case was employed in the Public Service as an Assistant Inspector of Works. In July 1973 he was a member of the supervisory staff in respect of work being carried out on the Airport Tunnel Road, Kai Tak.

2. The contractors for this work were Messrs. Paul Lee and Company Limited. In order to reduce the difficulties encountered with the supervisory staff at the site the company instituted a system of the payment of bribes to certain members of the supervisory staff.

3. The respondent was one of such members and he received $1,200 per month from August 1973 until January 1974. These sums were paid to him by one CHAN Hoi-ming, who was the Company's general foreman at the site. The practice of bribing members of the Public Service was in operation before the respondent was employed at the site.

4. The respondent pleaded guilty to a charge of conspiring to accept monies from the Company with a view to favour that Company. He is aged 28 and has a clear record. The magistrate sentenced him to be fined $3,000 and to be imprisoned for four months to be suspended for eighteen months. The magistrate also ordered him to pay the $7,200 which he had received to the Crown at the rate of $300 per month.

5. In his "reasons for sentence" the magistrate stated that he suspended the sentence of imprisonment because the system of bribery which obtained at the site was widespread and was instituted by Paul Lee and Company and not by the respondent. In addition, a nolle prosequi had been entered in respect of other cases of a similar nature where the person charged had pleaded not guilty. And no proceedings had been taken against CHAN Hoi-ming, the respondents' alleged fellow conspirator.

6. This court has repeatedly stressed that offences of this nature deserve condign punishment. And that in all but the rarest of cases of this nature an immediate custodial sentence is the proper sentence to impose.(See A.C. v. LI Yuk Hing and Another⁽¹⁾)

7. Mr. Penlington, who appeared for the Crown, stressed that the entry of a nolle prosequi was no bar to future prosecutions and that the case of CHAN Hoi Ming was still under consideration.

8. This case is not the most serious of cases involving bribery and the respondent has a clear record. But we do not think that this is one of those rare cases when an immediate custodial sentence should not be passed. We therefore order that the application be allowed and that the respondent be sentenced to four months' imprisonment to date from the date of his conviction (August 11th, 1975). We also order the remission of the fine. The order for the payment of the $7.200 will stand.

Representation:

Penlington for A.G./Applicant.

Patrick Woo (Hoosen & Co.) for Respondent.

(1) Application for Review No.3 of 1974.