The Queen v. Tso Wah Chung

CACC000292/1996

-----------------

Coram: Hon Power Ag CJ, Liu JA & Sears, J in Court

Date of Hearing: 24 September, 1996

Date of Judgment: 24 September, 1996

-----------------

JUDGMENT

-----------------

Liu JA:

1. The applicant faced two charges in the District Court. He was sentenced on his own plea to 15 months' imprisonment. This is his application for leave to appeal against that sentence.

2. The 1st charge was a conspiracy charge of accepting advantages, contrary to s. 4(2)(b) of the Prevention of Bribery Ordinance. He was charged that between 1 August 1994 and 28 September 1995 he conspired with the former Chief Health Inspector Yu, the former Senior Health Inspector Lee of the Urban Services Department (USD) and others to corruptly procure a monthly payment of $12,000 for the benefit of these inspectors in return for, inter alia, providing advance warning of USD raids to Kai Tong Chi Restaurant in Fuk Lo Tseun, Kowloon City and assisting in avoiding prosecutions for offences against the Public Health and Municipal Services Ordinance discovered on these raids.

3. The 16th charge to which the applicant also pleaded guilty was another conspiracy offence to accept advantages under the same s. 4(2)(b). He was charged that in between 1 May 1995 and 27 September 1995, he together with Chief Health Inspector Yu and others conspired to solicit and accept advantages, that is to say, $40,000 and a monthly payment of $8,000 from another restaurant, the Cannes Restaurant in the Fuk Lo Tsuen Road, Kowloon City for the benefit of these USD inspectors in return for providing advance warning of inspection and avoiding prosecutions likely to arise from these inspections.

4. We need not go into the facts in any great detail. Suffice it to say that the 1st defendant, Chief Health Inspector Yu and the 2nd defendant Senior Health Inspector Lee met a Mr Chan of the Kai Tong Chi Restaurant in November 1994 in a Mongkok restaurant. The 1st defendant Yu offered to give advance warning to Chan of USD raids. The applicant subsequently made known to Chan the amount solicited by these inspectors. Chan initially refused to pay and reported the approaches to ICAC. Under instructions from ICAC, Chan finally agreed to pay and the 2nd defendant, Senior Health Inspector Lee, used his father as collector of the bribes. The bribes were to be disguised as salary payments to two employees. Arrears were also demanded in a total of $84,000 which was agreed to be paid by two installments. $42,000 cash was handed to the applicant who in turn passed it on to the 2nd defendant Lee who again passed it on to the Chief Health Inspector Yu, the 1st defendant. The father of the 2nd defendant Lee collected $12,000 per month from July to September 1995. Advance notice of a USD raid was given once to the restaurant in June 1995. The applicant was not present at all the meetings with Chan of the Kai Tong Chi Restaurant but on the evidence his role was not insubstantial.

5. As for the 16th charge, in about May 1995, Chief Health Inspector Yu instructed Senior Health Inspector Lee to send the applicant to solicit bribes from Cannes Restaurant in Kowloon City. $8,000 per month was demanded from the owners, the Pangs, who obliged accordingly. $10,000 and $40,000 entertainment fees were also extracted from the Pangs. The father of Senior Health Inspector Lee also served as collector up to September 1995. Notice of advance warning of USD raids was given twice to the Pangs. On these facts, HH Judge Gould proceeded to sentence the applicant.

6. The 1st defendant, Chief Health Inspector Yu had earlier been sentenced by the same judge to 2 years and 9 months' imprisonment, the judge having taken a starting point of 3 years. The 2nd defendant, Senior Health Inspector Lee was sentenced by another judge, HH Judge Jackson to 15 months' imprisonment, the judge having taken a starting point of 2 years.

7. When HH Judge Gould considered the sentence of the applicant, he took into consideration his plea of guilty to both charges, 1 and 16. He adopted 2 years and 3 months, i.e. 27 months as the starting point. The Judge did not see fit to give a full discount for the pleas of guilty because the applicant did not so plead at the first available opportunity. The guilty pleas came only 4 months later. Nevertheless, the Judge took into consideration his sense of remorse and that his pleas did save some court time.

8. The applicant had given evidence against the 1st defendant, the Chief Health Inspector Yu, and also another defendant, Defendant 5, in different proceedings. The Judge gave him credit for the statements he had given to ICAC and his evidence given in accordance with those statements which the Judge categorised as "useful". The Judge accepted that the applicant played a relatively minor role, but he hastened to add that his participation could not be said to be insubstantial. The Judge also accepted, in broad terms, that Senior Health Inspector Lee, the 2nd defendant, was a more significant player in the conspiracy. The applicant received no direct financial benefits. He was a consultant advising members of the public in their dealings with USD. It was hoped, so the applicant admitted, that the USD members of the conspiracy would in some way steer work his way. A psychiatric report was obtained, in which the applicant was said to have a clear record. That was accepted by the prosecution. On the psychiatric report, the Judge commented that it gave a horrifying insight into what had happened to a man who was guilty of this kind of conspiracy offence. The Judge did not overlook the applicant's personal and family circumstances which were summed up by the Judge as some what complicated, but he found no justification for suspending the sentence. The Judge selected a starting point of 27 months and he reduced it to 18. The applicant complains in his Perfected Grounds of Appeal that the sentence is manifestly excessive, principally because it is, so submits counsel, a disparate sentence when compared with the sentence passed on the 1st defendant, the Chef Health Inspector Yu, as well as that passed on the 2nd defendant, the Senior Health Inspector Lee. Counsel is critical of what he describes as the Judge's insufficient consideration given to the guilty pleas and to the facts that the applicant derived no direct financial benefits from the conspiracy activities, that he had assisted the Crown by giving evidence at the trial of the 1st defendant, that he had a clear record and that he suffered from ill-health. All these matters under complaint were, in fact, taken into account by the Judge. As to the alleged disparity, the English cases seem to be in disarray, and we are far from being persuaded that the decision in R v. So Hung Lee & Another, [1986] HKLR 1049 is wrong. In passing, we should observe that the decision in So Hung Lee has, since 1986, been followed by this court for over 10 years. In any case, no serious disparity has been shown. The Judge balanced the respective participation of the applicant and that of the Senior Health Inspector in the conspiracy offences. He apportioned blame in the known circumstances. From a starting point of 27 months he selected, an almost 45% (to be precise 44 1/2%) discount was given, although the Judge did not seek to attribute the almost 45% discount to any specific features. When one focuses on the actual sentence passed on the applicant, the totality of 15 months which was the same as that passed on the 2nd defendant, is, in our view, appropriate. The Judge did, however, compare the applicant's case with that of the 2nd defendant, the Senior Health Inspector. The 2nd defendant faced only one charge. He pleaded guilty at the earliest opportunity. He also gave evidence for the Crown. The 2nd defendant received part of the corrupt payments, but he would stand to lose more - his Government post if not also his pension and other benefits. From a starting point of 27 months, the Judge first reduced it to 18 months and then brought it in line with the sentence of the 2nd defendant, Senior Health Inspector Lee, that is to say, to 15 months. In his own way, the Judge came down to 15 months. We need not be too concerned with the way in which the sentence of the applicant was arrived at. What is more important is whether the totality of 15 months passed on the applicant in the circumstances can be said to be manifestly excessive. It cannot.

9. In the Perfected Grounds of Appeal, ground 2 refers to the deadline of 6 October 1996 for the applicant and his wife and family to land in Canada as immigrants. It is not suggested, on the supposition that the Canadian Authority would still admit the applicant into their territory by 6 October 1996, that he is unable to obtain an extension or to re-apply after the deadline. As in the 1st ground, focusing on alleged disparity, we also find no substance in ground 2. For all these reasons, the application of the applicant for leave to appeal against his sentence must be denied. We refuse his application.

Representation:

Mr G DiFazio, Crown Prosecutor for the respondent

Mr E C Mumford, QC & Mr Raymond Yu instructed by M/s Chong Leung & Co for the applicant