Tang Ping-choi v. The Queen

CACC000370/1982

BETWEEN

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Coram: Sir Alan Huggins, V.-P., Yang & Barker, JJ.A.

Date: 5 November 1982

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. This Appellant was one of two defendants who were charged jointly with accepting an advantage contrary to s.4(2)(a) of the Prevention of Bribery Ordinance. This Appellant was further charged with soliciting an advantage contrary to the same section. The other defendant appealed to this court and the matter came before another division, where the sentence of three years' imprisonment on the accepting charge was reduced to one of 18 months’.

2. This was a case where the present Appellant was a Works Supervisor Class acting, we are told, as a Clerk of Works, and the other defendant was a Survey Officer, whose duty it was, amongst other things, to survey work which had been supervised by this Appellant. The evidence was that this Appellant spoke to a dredging contractor and suggested that, for a payment, the approval of work done by that contractor could be expedited. He approached this other person on the first occasion and then went away to find out what amount would be asked for. The dredging contractor reported to the Independent Commission Against Corruption and, as a result, when a further meeting was held the contractor was carrying a tape recorder.

3. The learned trial judge, in passing sentence, observed that there was little to choose between the two defendants, and it was for that reason that he passed the same total sentence on this Appellant as on the other defendant. The other division of the court in the course of its judgment agreed that the culpability of the two accused was equal, but it has to be borne in mind that they were there dealing with one charge only - a charge of accepting a bribe - and there is no reason to think that they overlooked the fact that this Appellant was convicted on a second charge.

4. As to the accepting charge, we feel compelled to say that it would be wrong for the two defendants to receive different sentences: that would inevitably produce a justifiable sense of grievances. Whether two of us would have seen fit to interfere with the original sentence is neither here nor there: we are here bound to say that 18 months' was the sentence which ought to have been passed for the accepting. That does not mean that the judge was right to say generally that the culpability of the two was the same. It was this Appellant who initiated the illegal transaction and we must accept that there was no evidence against the other defendant that he was any party to the soliciting, otherwise he would doubtless have been charged with that offence also, and we think there must be a differentiation. However, we take the view that in the light of a sentence of 18 months' for the accepting, three years' is too much for the soliciting. Accordingly we allow this appeal and we substitute on the first charge a sentence of two years' imprisonment and on the second a sentence of 18 months' imprisonment, those sentences to run concurrently.

5th November 1982