Attorney General v. Liu Wing Chuen
Read the full judgment text of CAAR 7/1974 on BabelCite. This Court of Appeal judgment.
1. The respondent pleaded guilty to an offence of bribery contrary to s.4(1) of the Prevention of Bribery Ordinance, (Cap. 201), the particulars being that on the 19th January he had offered $500 to an assistant driving supervisor of the Transport Department as an inducement to him to show favour to the respondent in relation to a driving test which the respondent was then undergoing and in respect of which the assistant driving supervisor was the tester.
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CAAR000007/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) APPLICATION FOR REVIEW NO.7 OF 1974 -----------------
----------------- Coram: Briggs, C.J. & Pickering, J. Date of Judgment: 4th March 1974. ----------------- DECISION ----------------- 1. The respondent pleaded guilty to an offence of bribery contrary to s.4(1) of the Prevention of Bribery Ordinance, (Cap. 201), the particulars being that on the 19th January he had offered $500 to an assistant driving supervisor of the Transport Department as an inducement to him to show favour to the respondent in relation to a driving test which the respondent was then undergoing and in respect of which the assistant driving supervisor was the tester. 2. The learned magistrate, bearing in mind the provisions of s.109A of the Criminal Procedure Ordinance (Cap. 221), recognising that the respondent was not a corrupt official and being of the view that the offence was clearly an isolated one owing more to misguidance than venality, sentenced the respondent to six months imprisonment, suspended for eighteen months, and ordered the $500 to be returned to the respondent. 3. The Attorney General applied for a review of that sentence on the ground that it was manifestly inadequate. That is a view with which we were unable to agree and we dismissed the application intimating that we would give our reasons later. 4. As Mr. Sceats, for the Crown, reminded us, this is the first application under s.4(1) of the Prevention of Bribery Ordinance although previous applications have been made relating to offences under s.4(2), concerning public servants, whilst Application No. 16 of 1973 concerned the sentence imposed for an offence committed by a building contractor, contrary to s.8(1) of the Ordinance. In that case the court had expressed the view that a custodial sentence was the proper sentence in all but the rarest of cases involving s.8(1). In Application No. 3 of 1974 the court had said, in relation to offences under s.4(2) of the Ordinance, that in all but the rarest case an immediate custodial sentence was merited. That subsection relates of course to the soliciting of an advantage by a public servant. Mr. Sceats posed the question whether the same principle applied equally to offences under s.4(1) concerning the offering of an advantage. A schedule, produced by the Crown, of the eighteen most recent cases dealt with under the Ordinance, showed that in only six of those cases was an immediate custodial sentence imposed; in addition, four suspended sentences resulted. 5. A subsidiary matter to which Mr. Sceats referred was the magistrate's order for the return of the $500 to the respondent. In the case of offences arising under s.4(2), referring to soliciting by a public servant, there was power for the court, under s.12 of the Ordinance, to order payment over by the defendant of the amount or value of any advantage received by him or such part thereof as the court should specify. No similar specific power existed, however, for the court to make such an order in respect of an offeror and Mr. Sceats suggested that the court might wish to lay down some principles regarding the course to be adopted in regard to the money offered in such cases. 6. Mr. K.H. Woo, who appeared for the respondent upon the application, urged that having regard to the provisions of s.109A of the Criminal Procedure Ordinance, and to the fact that this was an isolated offence by a young first offender who was not a corrupt official, the sentence imposed by the learned magistrate was adequate. In Application No. 16 of 1973 in which a sub-contractor, having constant dealings with Government officials, had offered a bribe of $2,000 and was fined $500, the Full Court had substituted a suspended term of imprisonment of nine months and increased the fine to $2,000. The present respondent, counsel argued, was not a man having constant dealings with Government officials but a youth who had been misguided and led to believe, though not by the examiner, that it was necessary to sweeten the examiner; to justify the Attorney General's complaint that the sentence was manifestly inadequate, that sentence should provoke a sense of shock or outrage and that reaction could not be said to exist in the present case. 7. In regard to the $500 ordered to be returned to the respondent, his counsel conceded that this should have been confiscated by way of a fine. 8. As we see it, this is an isolated offence by a first offender who is not a public servant or in any position of trust, who is twenty years old and in steady employment. His very age brought the learned magistrate face to face with s.109A(1) of the Criminal Procedure Ordinance which provides:
9. It would, we consider, be fanciful to suggest that no other method of dealing with this youth, apart from immediate imprisonment, was appropriate. Indeed, so to hold would be tantamount to declaring that all convictions for corruption must be dealt with by means of immediate custodial sentence. We are not unaware of the present climate of public opinion in regard to corruption nor indeed of the desirability of the court's making some response to that climate in the matter of sentencing. Crimes involving corruption are serious crimes and must be so dealt with by the courts. That is a different matter, however, from the court's over-reacting to any particular climate of opinion and embarking upon rule-of-thumb sentencing. The Independent Commission now exists and all responsible citizens should wish it well. But the courts do not play politics - despite ill-informed and inaccurate assertions in recent letters to the press regarding the "timing" of the first Full Court judgment to be delivered in a case involving s.10(1) of the Prevention of Bribery Ordinance. 10. We are, of course, dealing with a respondent who is twenty years of age and to whom, therefore, the provisions of s.109A(1) of the Criminal Procedure Ordinance apply, but we would not wish to be taken to imply that a person convicted of an offence involving corruption who is over twenty-one years of age must automatically receive an immediate custodial sentence. We have stressed the gravity of these offences and the desirability that the courts, in imposing sentences in respect of them, do not close their eyes to the climate of public opinion but it remains true that each case must be considered on its merits and that there can be no rule-of-thumb, which would be the inevitable result on our holding that this respondent, in these circumstances, should necessarily have been sent to prison forthwith. The sentence imposed upon him will hang over his head for eighteen months either ensuring his good conduct or being activated if he falls foul of the law again. 11. With regard to the treatment of money offered in circumstances such as this, again there can be no hard and fast rule but it is probable that in most cases it would serve to underline the gravity of the offence if that money were confiscated. It is true that no specific power in that regard exists under the Prevention of Bribery Ordinance whereas there is such a specific power in the case of a public servant. Section 102 of the Criminal Procedure Ordinance is, however, quite wide enough to enable the court to make a confiscation order even in cases brought under s.4(1) of the Ordinance. 12. Penultimately we would observe that it must be realised, and quickly realised, by everybody in the community, that the person who makes a corrupt offer is just as guilty of a criminal offence as the person who accepts that offer. When the offering stops there will still be corruption because there will still exist the Government official, partner or member of a private firm, employee of a public utility, who will, out of cupidity, make a demand for money or drop a broad hint that money would be acceptable. When the offering stops that hard-core residue of corruption will remain - hopefully only for a time. But in our view it is true to say that when the offering stops the back of the problem may well have been broken. In the meantime it is for everybody in the community to appreciate that the making of a corrupt offer is just as much a criminal offence and just as likely to result in punishment as is the acceptance of such an offer. 13. Finally, since we have referred to the repugnance with which the courts must view any rule-of-thumb sentencing we think it not inappropriate to comment upon assertions recently made, in an English-language newspaper, to the effect that the Chief Justice has quietly ordered a toughening up attitude on sentencing. 14. The article said that the Chief Justice let it be known as soon as he took over from his predecessor that he wanted longer prison sentences for young thugs. More arrant journalistic nonsense is difficult to imagine. Chief Justices do not issue directives in regard to sentencing being, by virtue of their experience, acutely aware that nobody but the utterly objective man on the bench, who has heard all the evidence, observed the demeanour of all the witnesses from his position of impartiality, is in a better position to determine what is an appropriate sentence. Policy on sentencing may be influenced by common consent of the judges after careful mutual discussion but it is not a matter for directives and any reference to a "get tough stand by the new Chief Justice" is misconceived. The courts are aware of their responsibilities to the public in the matter of sentencing but aware also that one of their primary functions is to maintain a necessary balance, which involves the refusal to be stampeded by public opinion or by the existence of any current campaign into the imposition of penalties which are unduly harsh in all the circumstances of any particular case. 15. The application, as we have said, was dismissed. Representation: B.A. Sceats, Assistant to the Law Officers for Applicant K.H. Woo (Peter Mo & Co.) for Respondent. |