The Queen v. Chan Koon Kwok Arthur

CAAR000009/1989

BETWEEN

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Coram : Hon Kempster, Hunter and Macdougall, JJA

Date of hearing: 20 June 1990

Date of Judgment: 20 June 1990

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JUDGMENT

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Kempster, JA (giving the judgment of the court) :

1. On 27 July 1989, after trial in the District Court, Arthur Chan Koon-kwok was convicted by Judge Yeung on four charges of soliciting and nine of accepting an advantage as an agent contrary to sections 9(1)(a) and (b) respectively of the Prevention of Bribery Ordinance (Cap 2U1). His application for leave to appeal against those convictions was dismissed on 29 March last and the judgment then given [Cr App No 433 of 1989 (unreported)] sets out the relevant facts.

2. The judge sentenced Chan to nine months imprisonment, concurrent, suspended for two years, on each of the four convictions for soliciting an advantage and imposed fines amounting in all to $170,000 on the nine convictions for accepting an advantage with three months' imprisonment on each, to run consecutively, in default. Judge Yeung also purported to order that the sum of $170,000 should be subject to an appropriation allowing payment to Chan's employers, on behalf of their American principals, of $50,000; purportedly pursuant to section 12 of the Ordinance. Whilst this provision appears in his Reasons for Sentence it is not carried into the Certificate of Sentences; perhaps because it was seen to be beyond his jurisdiction. The fines have now been paid.

3. The maximum penalty for each of the statutory offences in question, after trial in the High Court or District Court, is a fine of $500,000 and seven years imprisonment.

4. By leave, the Attorney General has invoked section 81A of the Criminal Procedure Ordinance (Cap 221) by application dated 18 August 1989. Despite its terms to-day ne invites a review only of the sentences of imprisonment passed upon Chan for the soliciting convictions on the basis that they are manifestly inadequate and wrong in principle.

5. As also appears in the Reasons for Sentence the trial judge properly directed himself that Chan was a single man, 32 years of age, with a clear record, whose employment prospects would adversely be affected. He further reminded himself that the amount involved in the nine counts of accepting an advantage was just over $150,000; that the offences, which were serious, were committed over a period of some three years and that the court should impose a sentence "which reflects the court's attitude towards the defendant's behaviour". No credit was due for a plea of guilty. However, the judge concluded that it was right that Chan "should be given a chance not to have his future completely destroyed by an immediate custodial sentence".

6. We are here concerned with offences of corruption. To repeat what was said by this court on 29 March: -

"... Judge Yeung found` that [Chan] had abused his position of trust by demanding and accepting personal commissions"

from suppliers of goods to his employer's principals

"without the knowledge or consent of his employers."

In such a context the suspension of a term of imprisonment is not appropriate as Sir Derek Cons V-P observed in AG v Ki Hon & Anors [1988] 2HKLR 220 at p 225: -

"There is ample authority that offences of corruption merit custodial sentences. If for some reason a judge thinks it appropriate to impose a fine in addition - for example to compensate for the cost and damage which the corruption has inflicted upon society generally - that should not go to reduce what is otherwise an appropriate term of imprisonment. And to reduce the term merely because the offender has ample means at his disposal would only encourage, ... the view that there is a different law for the rich."

In the circumstances of that judgment we understand these words to imply an immediate custodial sentence but if the matter be open to doubt it is resolved by another judgment of this court, given on 15 February 1989 by Sir TL Yang CJ in R v Stuart Leslie Turner Cr App No 401 of 1988 (unreported); again on a review of sentences passed after convictions under section 9(l). The Chief Justice observed : -

"It must be clearly made known to those who are tempted ... that if discovered and convicted they will be subjected to immediate custodial sentences of a substantial character."

Earlier he had pointed out that : -

"This is a commercial city. The probity of its financial institutions and of those who work in them is of great importance not only within Hong Kong itself but also internationally. Secret commissions strike at the root of that necessary probity. They are, of their very nature, difficult to uncover. They are a breach of the trust that commercial enterprises are entitled to expect from those they employ - and not a mere technical breach either."

7. The proper approach for the Hong Kong courts when considering sentence in this class of case was, perhaps, best explained by Lawton LJ in R v Wellburn and Nurdin (1979) 1 Cr App R (s) 64 in the context of very serious corruption with international ramifications : -

"Corruption in all forms has now become widespread. The courts must do what they can to stop the spread of corruption ... All they can do is to show by the sentences passed that the giving and acceptance of brines will not be tolerated ... This must mean in most cases severe sentences ... "

In that case one of the appellants appealed unsuccessfully against a suspended sentence.

8. Attempts to inhibit the spread of corruption necessarily involve an element of general deterrence, even in the case of a first offender, so that the gravity of offences in breach of the Prevention of Bribery Ordinance may properly be marked.

9. We emphasise this approach in the light of Mr Bernacchi's protracted attempts, on the respondent's behalf, to elide the moral obliquity of his conduct under the pretext of custom in the garment industry. He thereby brought home to us the insidious and debilitating effect of corruption on the commercial life of Hong Kong.

10. The sentences of nine months imprisonment, concurrent, suspended for two years, passed in relation to each of the section 9(1)(a) offences were wrong in principle and manifestly inadequate. We quash them accordingly. Had we been sitting at first instance we would have thought 18 months immediate imprisonment appropriate on each of those four convictions; the sentences to be served concurrently. This being a review we impose an immediate (discounted) sentence of 12 months imprisonment on each of the soliciting convictions, to run concurrently, in substitution. In so conforming with precedent we think it appropriate to point out that no submission has, to the best of our knowledge, ever been advanced on behalf of the Crown that this court thereby exceeds the jurisdiction conferred on it by section 81B(1)(a) of the Criminal Procedure Ordinance. We have reservations in that regard nonetheless.

Representation:

B Bernacchi, QC and Rimsky Yuen (M/s KB Chau & Co) for Appellant

AP Duckett and Francis Lo for the Crown/Respondent