Attorney General v. David Wilkinson

CAAR000003/1977

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Coram: Briggs, C.J., Huggins, J.A. and Li, J.

Date of Judgment: 7th June, 1977.

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JUDGMENT

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Huggins, J.A.:

1. We dismissed this application and said that we would give our reasons later.

2. Pursuant to leave granted by the full court the Attorney General sought a review of a sentence of one year's imprisonment, suspended for one year, passed on the Respondent for possession of unexplained property contrary to s.10 (1) (b) of the Prevention of Bribery Ordinance. The Respondent was a Chief Estate Surveyor in the Department of Public Works and was involved in negotiations connected with the projected development of Shatin in the New Territories. Those negotiations concerned a sale of land to the Tsun Cheong Co. Ltd. and were carried on over a period of years. The negotiator on behalf of the company was a Mr. Clifford Wong, with whom the Respondent was already acquainted socially. There was an occasion when the two men had a conversation in the course of which Mr. Wong is alleged to have asked the Respondent whether he would like some units in a unit trust fund which they had been discussing and the Respondent admits that the question had "an obvious implication" and that he replied "that this was not necessary, that [Mr. Wong] owed him nothing". The discussion was not pursued either then or later. Before the negotiations were finally completed the Respondent went on leave to the United Kingdom. He was in any event not responsible for the final decision, but was a "co-ordinator". While in the United Kingdom the Respondent received by post bearer certificates in respect of 1,740 units in the unit trust fund he and Mr. Wong had discussed. The package contained no direct indication of the sender's identity, but the Respondent inferred from the circumstances that they had come from Mr. Wong. After some hesitation he decided to keep the certificates and, after his return to Hong Kong, he disposed of them for $102,871.17, but they have been valued as at the date on which the Respondent returned to Hong Kong at $107,860.16. That is the property possession of which he was called upon to explain.

3. In the court below it was conceded that there was nothing to show that the Respondent "acted in any corrupt manner". It must be clear to everyone that what was meant by that was that there was no evidence that the Respondent had allowed his conduct of the negotiations to be affected, or had threatened to allow his conduct of the negotiations to be affected, by any promise or hope of reward. It is this which enabled counsel to submit that the case may properly be regarded as more akin to a s.3 case than to a case under s.4(2). None the less, that the gift was connected with the negotiations and in that sense intended as a reward is manifest.

4. The learned judge in passing sentence said that the case had given him very great anxiety but that he was impressed by the fact that there was "no suggestion of a corrupt motive or of corrupt activities". It was perhaps stating the matter too widely to say that "the case was not put forward as a case of corruption at all". but again it is clear what the learned judge meant. He went on to say that "it is much the same as Carlyle's Case", a reference to Attorney General v Carlyle Application for Review No.22 of 1976 and it is indeed similar. No purpose will be served by repeating what was fully canvassed in Carlyle's Case. We appreciate that the gravamen of such an offence lies in the inhibiting effect it is likely to have on an official's future performance of his duties and again we say that if an immediate sentence of imprisonment had been imposed we should not have interfered. At the same time we are surprised at the suggestion that the sentence imposed may be regarded as an encouragement to other Crown servants to accept gifts. A sentence of imprisonment on a Crown servant is no light matter and we are constrained by authority to hold that a sentence is no less a sentence of imprisonment because it is suspended. Moreover, although we do not have regard to possible future consequences which lie within the discretion of another authority, we are not bound to close our eyes to consequences which are certain and inevitable. The Respondent has been ordered to repay the entire sum by which he benefited and has therefore gained no advantage which falls to be weighed against such inevitable consequences.

5. In the present case the other members of the Court would themselves have passed a suspended sentence. As in Carlyle's Case I might have taken a less lenient course, but we were all agreed that we would not have been justified in substituting our discretion for that of the trial judge.

7th June, 1977.

Representation: