Attorney General v. Anthony Armitage

CAAR000004/1989

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Coram: Hon. Yang, C.J., Silke, V.-P. & Penlington J. A.

Date of hearing: 3 May 1989

Date of delivery of judgment: 3 May 1989

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J U D G M E N T

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Penlington, J A. delivered the judgment of the Court :

1. These are applications, pursuant to leave, for, review of sentences brought by the Attorney General. At the request of Counsel we have considered both applications together as they clearly involved virtually the same facts, although the circumstances of each of the Respondents are somewhat different.

2. The Respondents pleaded guilty to charges before District Judge Evans relating to shipments of gold by air from Hong Kong to Nepal. The Respondent Sergeant Gurung was a freight clerk in the Queen's Gurkha Rifles office concerned with arranging for the sending of "MFO" boxes containing personal effects from Hong Kong to Nepal. The Respondent RAF Corporal Armitage was in the Joint Services Movement Section and was involved with the placing, of the boxes on the chartered aircraft going to Nepal. Such boxes were not normally scrutinised by the Nepalese customs.

3. In June 4 boxes which have been sent from Hong Kong were received in Nepal, and were found to contain 194 kilos of gold bullion worth some HK$23,000,000. Investigations were then made and transpired both respondents had, in exchange for bribes, been involved in the shipment of the boxes. Both of them also admitted that on prior occasions - Gurung once, Armitage twice - they had taken part in arranging for similar boxes to be sent to Nepal. Both Respondents fully co-operated with the investigating, authorities. They pleaded guilty at the first opportunity and the trial judge took into account the circumstances of each Respondent as to whether he could, in the exercise of his discretion, avoid imposing the immediate custodial sentences which it has been laid down in several cases in Hong Kong should be passed in all but exceptional cases. He decided that, in his discretion, the facts and the circumstances were such that he could instead impose fines and sentences of imprisonment which would however be suspended. He also made orders for restitution, which he was obliged to do.

4. In the case of Sergeant Gurung. there were two charges The first was that he received a payment of $20,O00 in April 1988 as a reward for assisting in sending 2 MFO boxes containing bullion to Nepal and the second was he received $60,000 from the same persons in June in respect of 4 such boxes. As regards Corporal Armitage the first was that in March 1988 he accepted $20,000 for helping to arrange the sending of 2 MFO boxes to Nepal. The second was also $20,000 in April in relation to 2 further boxes and the third was accepting $40,000 in June 1988 in relation to 4 boxes.

5. Gurung was sentenced to 12 months concurrent imprisonment on each charge, to be suspended for 2 years and he was also fined $40,000 on each. Corporal Armitage was sentenced to 12 months concurrent imprisonment on each, suspended for 2 years, and he was fined $10,000 for 2 offences and $11,000 on the third, Sgt. Gurung was also ordered to make restitution of $32,000 and Corporal Armitage $35,000, the balance in each case of the payments received having already been recovered. All fines and sums ordered to be paid as restitution have been received.

6. Of the other persons involved in these shipments one was awaiting trial in Hong Kong and another, who was on leave in Nepal when the offences came to light, is a fugitive somewhere in India.

7. It is argued by Mr. Gross for the Crown, that the circumstances of these charges and the personal circumstances of these respondents are not such as to make them so exceptional that the trial judge was entitled to exercise his discretion in the manner that he did in the light of the very clear authorities relating to the proper sentence in such cases of bribery.

8. Mr. Sarony in his very eloquent plea on behalf of each of the respondents argued that the exercise of that discretion must be shown to be manifestly wrong, which is not the case here, before this court should interfere with that discretion.

9. There is no point in going, through all the various authorities which have been cited to us. They undoubtedly lay down that an immediate custodial sentence should be imposed in cases of corruption unless, as Roberts C.J. said in Lai Yuk Kui v. R. [1981] H.K.L.R. 691 the facts of the case or the circumstances of the offender are so exceptional as to justify another course.

10. Here the respondents argue, there are exceptional facts and circumstances. These are inter alia:

1.    While the respondents did commit more than one offence, which is an aggravating factor, the offences relating to payments other than for the 4 boxes in June 1988 only came to light because of he respondents own full and frank disclosure. Before that it was not known that there had been any such shipments. This information has preaumably been useful to the investigators.

2.    The respondents have fully co-operated with the investigating. authority, the ICAC, and pleaded guilty to the offences at the earliest opportunity.

3.    The effect of these offences is not to reduce Hong Kong's reputation as a commercial centre, as was the case in R. v. Turner C.A. 401/1988, nor is the reputation and integrity of any Hong Kong Government Department tarnished.

4.    The events have brought to an end in each case a promising career with H.M. Forces and the loss of very substantial rights and privileges. Both respondents are married and with children who must inevitably suffer greatly. Sgt. Guruing comes from a family with a long and honourable history of service in the Brigade of Gurkhas, his father having reached the much esteemed rank of Gurkha Major. He has brought disgrace on that family and is keenly aware of it. This disgrace will remain with him for the rest of his life in particular when he returns to his village in Nepal where he may well find himself an outcast.

5.    Corporal Armitage had, due to his family committments, a substantial debt burden before he ever came to Hong Kong and which has increased here. The fines imposed have added to that. A period in prison when he would not be earning will only make that position worse and hinder any chance of his rehabilitation. Even as things stand he and his family face a bleak future.

6.    Sgt. Gurung was under close arrest for a period of 5 months and when he returns to Nepal, which he must, he will be arrested there and face further charges.

11. We do take into account that the Government in Nepal would look to members of the British Armed Forces in Hong Kong to go about their duties without corruption and undoubtedly the reputation of the British Forces has suffered because of these incidence. However we do not consider this is a case where the image of Hong Kong has been severely tarnished.

12. We have to consider whether the exercise of the judge's discretion was so manifestly wrong as to justify our interference. If custodial sentences had been passed, we would have been reluctant to interfere and it may be, perhaps in the interest of the Respondents themselves that, rather than substantial fines which we accept have been paid only with at difficulty, a relatively short term of imprisonment might have been preferable.

13. Nevertheless, we do not think that the discretion exercised by the judge in imposing fines and the suspended sentences in the way he did was one with which we should now interfere.

14. This is a most exceptional case. No previous one of its nature has been drawn to our attention. It is over a year since the of offences came to be known. Neither Hong Kong's commercial reputation or its people have been directely harmed. This is not a easy matter, by any means, and is one to which we have given anxious consideration but, on the facts here and in the light of the personal circumstances of each of the Respondents, we consider that it is not a matter in which we should. interfere with the judge's discretion which he clearly exercised with great care.

15. Both applications are refused.

Representation:

I.G. Cross, Senior Assistant Crown Prosector, and Miss Catherine Fung, Crown Counsel, for Applicant/Crown

Neville Sarony instructed by Messrs. Munro & Claypole for both Respondents