Ng Yiu-man v. The Queen

CACC000239/1980

Headnote

Sentence: S.3 Prevention of Bribery Ordinance: $1,000 from departmental colleague of similar rank

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 239 OF 1980

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Coram: Silke, J. in Court

Date of Judgment: 21 March 1980

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JUDGMENT

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1. This is an appeal against sentence upon a conviction under section 3 of the Prevention of Bribery Ordinance.

2. The sentence imposed was a conditional discharge on a recognizance of $500 to appear for sentence with 12 months: $500 dollar costs and "conviction recorded" if I may put in that way.

3. Briefly the facts are that the appellant, who is an officer on probation in Customs and Excise Service of Trade Industry and Customs Department: a public servant, - borrowed the sum of $1,000 from a colleague of similar rank in the same department. He had no permission to do so.

4. The appellant, who pleaded guilty, was perfectly frank with the court and with the Probation Officer who interviewed him. He borrowed the money to go to Macau to gamble.

5. He had a joint saving account with the girl he hopes to marry but did not ask for some of that - or help from his family. I imagine as he knew his reasons for wanting the money would be frowned upon.

6. The reasoning behind this offence is, as Mr. Reid has said, to prevent a Crown servant finding himself in a vulnerable position - or under an obligation either to a person with which he would have dealings in his work or to member of the public. Its object is to ensure the avoidance of situations where corruption could become a factor in a Crown servant's life.

7. And it cannot be said that its existence has not been well publicised.

8. Having said that about the offence I go on to consider the particular offender here and to consider sentence passed on others in like situation.

9. Mr. Reid has drawn my attention to other convicted offenders: sufficient to give the example of a U.S.D. amenities officer accepting advantages from a canteen operator at a beach which was in his charge - and Mr. Reid, with fairness, distinguished that type of case from the one here.

10. As I have said the sum was $1,000 - in two lots one of $500 cash and the other a cheque - at exorbitant interest of 10% per month. In 1976 offenders in like cases - some of whom borrowed to speculate on the stock market and some of whom borrowed much larger sums - had, on appeal, no conviction recorded. But that was in 1976 and now, four years later, Crown servants are still placing themselves in jeopardy.

11. The appellant here is aged about 20 - a very detailed and most useful Probation Report is on the file. He is a good filial son with no previous record.

12. What may happen to his job in the future is not for my consideration. I am told that another person dealt with at the same time for an exactly similar offence - and holding a similar position - aged 26, did not have a conviction recorded against him.

13. While the law allows, under section 36 of the Magistrates Ordinance, the recording or non recording of a conviction courts can often find themselves drawing a very fine distinction between one offender and another.

14. I think this to be a case in which a merciful solution could be found: the youth has suffered a good deal for his folly.

15. Once he realised what the interest would be, he repaid the loan having discussed the matter with his girl friend.

16. While the appellant's reasons for borrowing were not the best of reasons - not for example to help his family - I would let the sentence stand but would direct that no conviction be recorded.

Order

17. Appeal against sentence allowed insofar as there be no conviction recorded.

Representation:

Mr. Nimatollah (Poon & Sum) for Appellant

Mr. Reid for Crown