Attorney General v. Hector Joseph Carlyle

CAAR000022/1976

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 28th December, 1976.

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DECISION

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Pickering, J.A.

1. The Respondent was a Senior Superintendent in the Royal Hong Kong Police Force and, at the date of his conviction on a charge of maintaining a standard of living above that commensurate with his then present or past official emoluments, contrary to section 10(1) of the Prevention of Bribery Ordinance, Cap. 201, was acting as Chief Superintendent, his post being Deputy District Commander, Kowloon. He had at that time served 23 years in the Royal Hong Kong Police Force. The simple fact to which he pleaded guilty was that over the period from 15th May, 1971 to 31st January, 1973, his expenditure exceeded his official emoluments of $106,216.78, by $66,341.75. The Respondent offered no explanation of the disparity observing that he had nothing to say in mitigation but that he regretted the state of affairs which had led to the proceedings. The learned magistrate adjourned the matter to consider the question of sentence and, upon the adjourned hearing, two Assistant Commissioners of Police came forward to give character evidence on behalf of the Respondent. Their appearance in court was achieved only after some reluctance on the part of the Respondent to agree to their giving evidence, had been overcome. They spoke of him as an officer with a distinguished, and until that time unblemished, record and said that his conscientiousness, hard work and concern for his subordinates had met and exceeded the highest standards required.

2. After a second adjournment further to consider the matter, the learned magistrate sentenced the Respondent to 12 months' imprisonment suspended for two years coupled with a fine of $25,000 with six months' imprisonment in default of payment. The Respondent was given one month in which to pay the fine.

3. The Attorney General applies for a review of the sentence upon the ground that in respect of a charge under section 10(1) of the Prevention of Bribery Ordinance, the sentence of 12 months' imprisonment is manifestly inadequate and its suspension wrong in principle. Mr. Penlington, for the Attorney General, urged that the learned magistrate was wrong to contrast the case with that of Ernest Hunt⁽¹⁾ and to describe the Respondent as of a very different character from Hunt whose callous selfenrichment the magistrate described as of enormous proportions, commenting that, as to Hunt's character, as revealed in the evidence, the least said the better. Mr. Penlington commented, with some justification, that when Hunt was sentenced to 12 months' imprisonment the full nature and extent of his behaviour was not known, only becoming apparent when he gave evidence in the subsequent trial of Peter Godber⁽²⁾. The learned magistrate had further been in error, counsel argued, in taking into account the fact that the Respondent "will doubtless receive no pension". In the case of Reg. v. Yip Yuk Lun⁽³⁾, Hogan C.J. had said:

"In my view a magistrate should enter, or refrain from entering, a conviction, in accordance with the magistrate's own view of the conduct of the accused, his character and the circumstances of the case, without regard to what steps, if any, those responsible for discipline in the Civil Service may take as a result of that conviction. It is for them to decide what consequences it may have on his position in the Civil Service and they are quite capable of assessing, for this purpose, the triviality or importance of an offence and giving proper weight to any mitigating factors. It is certainly not for the court to go out of its way to prevent them taking account of a conviction which the court would otherwise have thought it proper to record."

Moreover section 109B(5)(a) of the Criminal Procedure Ordinance, Cap. 221 provides that:

"(5) Subject to any provision to the contrary contained in this or any other Ordinance -

so that probable loss of pension was not a legitimate matter for consideration by the learned magistrate.

4. We are not insensible of the weight of these criticisms but there is another side of the coin which we consider justified the learned magistrate's somewhat exceptional approach to the question of sentencing.

5. Mr. Corrigan, for the Respondent, engaged in a useful review of the principles laid down by the former Full Court in regard to this type of application. He adverted to the guideline of "shock or outrage" at the inadequacy of the sentence which was adopted at the very inception of this type of application and which is a concomitant of the principle that this Court will be slow to interfere and will do so only when the sentence of the lower Court is very clearly wrong having regard not only to the whole of the circumstances of the offence but also to those of the offender. Application for Review No. 4 of 1974, counsel contended, had laid down that the norm, following a conviction for an offence under section 4(2) of the Prevention of Bribery Ordinance (Cap. 201) should be an immediate custodial sentence but that this was a norm and not an invariable had been made clear in Application for Review No. 7 of that same year when the Full Court set its face against automatic or rule-of-thumb sentencing. What Mr. Corrigan described as a further embellishment on the norm in regard to section 4(2) offences was contained in Application for Review No. 15 of 1975 where it was said that it was wrong in principle to suspend the sentence. We regard this as less of an embellishment than a necessary corollary to the proposition that the norm is an immediate custodial sentence. That proposition, incidentally, was reiterated in Applications for Review Nos. 7,8,18,19 and 21 of 1975. Implicit in all these cases from the very employment of such terms as "the norm" was the possibility of some sentence in an exceptional case, less severe than that of immediate imprisonment. Finally, in Reg. v. Lee Sui-Luen⁽⁴⁾ the Full Court, having declined to apply the principle laid down by Lord Parker C.J. in Reg. v. O'Keefe⁽⁵⁾ to offences under section 4 of the Prevention of Bribery Ordinance, specifically referred to the possibility of a suspended sentence in an exceptional case.

6. However none of those cases arose, as does the present case, under section 10 of the Ordinance. Such convictions as have followed prosecution under section 10 have hitherto resulted in immediate custodial sentences and here, as in relation to section 4(2) offences we consider that that should be the normal course. But we emphasise "the norm" and that there can be no rule-of-thumb sentencing. "The norm" means exactly what it says. The exeptional case may arise at any time and this, we consider, was properly regarded by the learned magistrate as one of them.

7. Mr. Penlington's point that the enormity of Hunt's conduct was not fully known at the time of his trial is valid but nonetheless in that case, unlike this, the evidence at the very trial was redolent of corruption involving as it did the payment of very large sums of money into the notorious "Ellerbrock" account in Hong Kong and transfers therefrom to a similarly-named account in Germany. "Ellerbrock" was of course, the maiden name of the second Mrs. Hunt. Similarly in the case of Siu Tung-yim⁽⁶⁾ it became inherent in the evidence that the excess monies which it fell to the accused to explain, were from a corrupt source. That is not the case here and Mr. Corrigan urges that on the known facts it cannot reasonably be inferred that the Respondent was a corrupt officer in any sense of accepting monies as a consideration for neglecting or perverting his duties. The character evidence is, of course, strongly against any such interpretation. Mr. Corrigan contends that in those circumstances this conviction under section 10 may well involve a section 3 rather than a section 4 background that is to say the acceptance of advantages rather than of bribes; in the absence of any evidence as to the latter, we think that was the proper view for the learned magistrate to have taken. The learned magistrate was clearly also influenced by the lapse of time since the commission of the offence, by the Respondent's forthright plea of guilty and by the very strong character evidence and he clearly recognised the case as an exceptional one. Whilst we cannot say that had the sentence of imprisonment been immediately custodial in nature and followed by an appeal to this Court, the appeal would necessarily have succeeded, we do not, in all the circumstances of this case, encounter that sense of shock or outrage which would prompt us to interfere. It was for these reasons that we dismissed the application.

Representation:

Penlington for Crown/applicant

Corrigan (Hampton, Winter & Glynn) for respondent.

(1) (1974) H.K.L.R. 31

(2) (1975) H.K.L.R. 326

(3) (1961) H.K.L.R. 268 @ 282

(4) (1976) H.K.L.R. 34 @ 36

(5) (1969) 2 Q.B. 29

(6) Cr. App. 115/74

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 28th December, 1976.

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DECISION

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Huggins, J.A.:

8. I agree. It may be that the Respondent is fortunate that the magistrate found himself able to take a lenient view, and had an immediate term of imprisonment been imposed an appeal against the sentence would not necessarily have succeeded. What has been contended is that it was wrong in principle to suspend the term of twelve months' imprisonment and that by reason of the suspension the sentence was manifestly inadequate. That submission was made on the basis that the Respondent was a corrupt police officer in the sense that his excessive expenditure was made possible by his receiving advantages as inducements or rewards in his capacity as a police officer. We were referred to other cases where, after a trial, such corruption was sufficiently ...(illegible) In the present case there was a plea of Guilty and no evidence was called. What might have emerged had there been a full trial we do not know, but the magistrate was right to assume that the prosecution would prove any facts relevant to the assessment of sentence, and although the maximum sentence for an offence under s. 10 is greater than that for an offence under s. 3 s. 10 covers both types of case. On the admitted facts it was open to the magistrate to take the view that while the Respondent was not corrupt in the sense I have defined he received presents which he should have declined but which did not relate to the performance of his duties. It is not necessary that we should consider the story now for the first time put forward in this court by the Respondent: whether it is true or not its untruth has not been proved. The amount of excess expenditure was very substantial, but it extended over a period of twenty months and was not on the same scale as that in most of the cases cited. Although some of the matters taken into account by the learned magistrate should not strictly have been assumed in the Respondent's favour the magistrate was, in my view, justified in regarding this as an exceptional case. The time which has elapsed since the commission of an offence may be, and was in this case, a material factor in mitigation of sentence, though not in mitigation of the offence. I would not, however, attach any weight to the fact that the Crown saw fit to prosecute the Respondent in the Magistrates' Court rather than in the District Court: the case was one which has been shown to be well within the jurisdiction of the magistracy.

9. I would only add my personal appreciation of the very able address of Mr. Corrigan. It was helpful that he should remind us all of the principles which have been laid down by this court, for I think there is sometimes the danger that they are overlooked: there have been many applications for review and I cannot help thinking that there is too great a readiness to be shocked when magistrates and judges impose deliberately lenient sentences in individual cases while indicating their recognition of the appropriate tariff where similar mitigating circumstances do not exist. We must endeavour to preserve the discretion which the law reposes in the judge of trial and I am conscious of the fear that I have myself been party on occasion to the granting of an application for review which was so near the border line that in maintaining one principle we may have imperilled another.

28th December 1976.

Representation: