Attorney General v. Chu Piu-wing and Others

CAAR000003/1983

BETWEEN

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Coram: Hon. McMullin, V.-P., Li JA & Power, J

Date: 24th November, 1983.

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JUDGMENT

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McMullin, V.-P.:

1. This is an application for review of sentence on the part of the Attorney General.

2. The three respondents were convicted on a series of counts under the Prevention of Bribery Ordinance, Section 4, sub-section 1. They received sentences of six months concurrent upon each of the four counts with which each was concerned. The Attorney General applies on the ground that the sentences are wrong in principle and also manifestly inadequate.

3. We have dealt with this case previously when there were appeals against convictions by all the respondents. Those appeals were dismissed.

4. The case was one of the utmost gravity. Two serving police officers and one person who had been a police officer, and who had retired from the police force, approached two other serving police officers with a corrupt suggestion. The 2nd and the 3rd respondents, the serving police officers, were members of an anti-gambling squad set up for the purpose of investigating and putting down these illegal activities in their own area. They were, to put it shortly, in the pay of the ex-police officer who had several such gambling establishments under his control.

5. They made contact with the lst and 2nd prosecution witnesses who belonged to a squad of a special nature. That squad had been set up specifically to deal with a problem that had arisen in respect of individual area anti-gambling squads which had fallen under suspicion of corruption. The new squad operated throughout the territory as the District Anti-gambling Squad.

6. The suggestion made to the two prosecution witnesses who belonged to this superior squad was that they should inform the respondents of the dates and times of police raids upon establishments in which they were interested or else would look the other way in a form of protection to such establishments.

7. Fortunately the two officers thus approached resisted these blandishments and reported to their superior officer. They were then told to purport to go along with the scheme and a series of meetings occurred in the course of which corrupt monies were offered and ostensibly received for the purpose stated. On each occasion this was reported to the superior officers of the D.A.I.G.S. There was also an elaborate plan involving tape recording of conversations between the respondents and their contacts which provided a considerable part of the evidence under the several charges and eventually the three defendants were arrested and prosecuted.

8. In imposing his sentences, the District Judge adverted to certain factors to which we should refer. Firstly, there was the fact that the 2nd and the 3rd respondents would lose their pension rights for their government services. That is a factor which, as the Chief Justice said in Fung Hum-yiu & others (Crim. Appeal 856/79) is one to which some consideration may be given. But it is obviously a factor which, in most circumstances, will have very little weight since the accused will be assumed to have weighed that risk against his projected wrong doing.

9. Again, the Judge referred to the unfortunate history of the trial in this case, and to that I will return shortly.

10. He imposed the sentences of six months, having had regard to those and some other less important factors. In doing so, he referred to the decision in Lai Yuk-kui, 1981 H.K.L.R. 691, case in which the accused, a business man, had received a sentence of six months, for offering a bribe to a taxing officer upon , single occasion. Guidelines were suggested in that case by the learned Chief Justice, who, although he did not interfere with the sentence of six months, indicated that in cases of that kind, a minimum immediate custodial sentence of 12 months' imprisonment would be always appropriate.

11. It must be said at once that the circumstances of that case - upon which the District Judge relied - and the circumstances with which we are here confronted are totally dissimilar. We are satisfied that Mr. Egan has put the matter properly in saying that the line of Section 4 cases extending from 1974 up until the latest cases in 1981 and 1982, establish that for a single offence under section 4, a custodial sentence is demanded, and save in very exceptional circumstances the minimal sentence should be 12 months.

12. In the present case, there was a series of corrupt offers under circumstances of very great gravity. The real gravamen of the situation inheres in the fact that we have here two serving police officers, and one who had been such an officer, endeavouring to seduce colleagues with whom they were familiar, and who like themselves were charged with the duty of putting doom the very practice which these corrupt solicitations and offers were supposed to protect. The damage to the public at large, and indeed to the repute of the police force itself, can scarcely be exaggerated. In such circumstances as those, sentences of anything up to three years would have been fully justified.

13. That however is not the end of the matter. The circumstances of the present case are unusual. We are concerned with what amounts to an ad misericordiam plea, presented to us, with considerable finesse, by Mr Sedgwick who concedes that the sentences imposed cannot in themselves be regarded as proper in the circumstances.

14. He points out however, firstly, that there were two trials in the present case, before the matter came upon appeal. The three respondents were first before the court on 11th March 1982, presumably for plea. They were on bail then and they remained on bail throughout what followed up to the conclusion of the second trial.

15. The first trial commenced on the 21st June and proceeded for some eight days, after which it was suspended upon query by defence counsel as a result of which it became apparent that copies of certain witness statements prepared under the new procedure relating to trials in the District Court had inadvertently been supplied to the Judge which he had been consulting as the trial progressed. When this was brought to his attention it appeared to cause him considerable anxiety. We do not have a note of the exchanges which followed between Bench and Bar, but we are informed that, although counsel on both sides were not in any way inclined to suggest that the trial should not continue, the Judge himself eventually felt that it would not be proper for him to continue to have seisin of the case, and he disqualified himself from proceeding further. Since we do not know the source of the judge's misgiving it is difficult to challenge the decision. It had nevertheless the unfortunate effect of causing a considerable delay which was in no way the fault of the respondents.

16. The respondents were next before the court on the 2nd of July when pleas were taken in prospect of a fresh trial before another judge and a date was fixed for the trial which commenced on the 18th of Octobers. It continued thereafter until the 26th of October at which date unfortunately the 3rd respondent became ill and had to go to hospital. The trial was then delayed until the 1st of February, 1983 when it was resumed. It was completed on the 10th of February and judgment was delivered on the 23rd of that month. There was thus a delay of almost one year from the time when the respondents first appeared in court. That undoubtedly was a factor of hardship and was rightly so regarded by the District Judge in imposing sentence. It must have its weight also in our approach to the present application.

17. The second special consideration in which counsel relies is as follows. At the conclusion of the trial, the 1st and the 3rd respondents, who had been on bail up to then, did not apply for further bail, despite the fact that in view of the very short sentence imposed it might have been expected that an application for bail would have been well received. They chose to serve their sentences which have since been completed. The 2nd respondent applied for bail and was granted bail pending his appeal.

18. We are told that since they have served their sentences, the 1st and the 3rd respondents have obtained honest and regular employment. The 3rd respondent has got himself a job with a bus company, and the 1st respondent has resumed his work as a taxi driver. They have thus been at liberty for something in the region of five months.

19. I have recited these facts to explain why we are not proposing to interfere with these sentences. Under these circumstances we cannot say that justice requires us to impose, in effect, fresh sentences of imprisonment on the first and third respondents. Although the second special circumstance does not apply to the second respondent, we do not think that any distinction should be made in this regard between his case and that of the 1st and the 3rd. respondents. But in refusing the application upon these wholly ad misericordiam grounds, we must emphasize that the sentences imposed were in fact wholly inadequate and quite wrong in principle.

Representation:

K. Egan for Applicant/Crown.

A.W. Sedgwick (D.L.A.) assigned for all 3 respondents