R. v. Leung Chi Ming

HCMA000174/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 174 OF 1995

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Coram: The Hon. Mr. Justice Sears in Court

Date of hearing: 19 May 1995

Date of delivery of judgment: 19 May 1995

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J U D G M E N T

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1. This is an appeal against sentence. The Appellant came before Mr. Edwards and pleaded guilty to an offence of offering an advantage to a police officer. He pleaded guilty on the basis of the summary of facts, and it is trite law that the sentencing tribunal can only sentence on the basis of the facts which are admitted.

2. The facts which are admitted and on which the sentence should have been passed was that this Appellant who had been convicted of selling contraband cigarettes was approached by the police officer who had arrested him sometime before, and the police officer came to him and solicited money from him as a reward for not taking action against him for selling contraband cigarettes. I cannot at the moment find in the evidence that he was in fact selling contraband cigarettes. This appears to me to be one of those cases where the police officer was usurping his power and saw this man as an easy touch for money. He demanded that the Appellant pays for parking tickets which he did. I do not understand quite frankly why he was prosecuted, but on those facts it is clear to me that he was the innocent victim of this police officer's corrupt approach. He pleaded guilty on the basis of those facts.

3. The magistrate referred to a case some 14 years ago, Lai Yuk-kui [1981] HKLR 691, which I have read; where a person goes in deliberately to offer bribes, he will find himself facing a custodial sentence. Nowadays longer sentences are passed.

4. The magistrate also said that it is clear the Appellant knew that a conviction for selling contraband cigarettes involves a heavy fine and it would be to his advantage to pay $800.00. I confess I think that is a misreading of the facts. It was the police officer who was wanting to obtain the money, and the facts are dramatically different to Lai Yuk-kui, or the standard corruption case which comes before this court unfortunately too frequently. As I have said, I am surprised why he was ever prosecuted. He was clearly the victim, whether he had been in trouble for other matters. The sentence is quite wrong in principle. I did doubt whether or not even a custodial sentence was the appropriate sentence. However, I consider the appropriate sentence to be 6 months' imprisonment, suspended for 12 months.

5. An application for bail was made to the magistrate. The record indicates that a prosecutor, Senior Crown Counsel, has said that the only ground to allow bail is that there is a reasonable prospect of success. I do not know why bail was not granted. Magistrates should not be sensitive about appeals. This is part of our procedure. It seemed to be a classic case where bail should have been granted.

Representation:

Mr. G.Di Fazio, S.C.C. for the Crown.

Mr. John Graeme Hagon instructed by B. Manek & Co. for the Appellant.