Kwok Siu Wa v. R.

HCMA000689/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 689 OF 1995

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Coram : Hon Patrick Chan, J. in Court

Dates of hearing : 25 April and 31 May 1996

Date of judgment : 31 May 1996

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J U D G M E N T

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1. The appellant was convicted after trial of two counts, namely soliciting an advantage and accepting an advantage as a public servant. He was sentenced to 2 1/2 years' imprisonment on each count, both sentences to run concurrently. He now appeals against both conviction and sentence.

The evidence

2. The appellant was a serving police officer who was, at the material times, stationed in Kwai Chung Police Station. On 2nd August 1994, he was a member of a team of officers who conducted an operation at the home of PW1. According to the appellant and his officers, they found some dangerous drugs in the possession of PW1 who was then arrested and brought to the police station. It is not disputed that while at the police station, the appellant had given his pager number to PW1 who was told that if he had any information about drugs, he could provide it to the police. It is also not disputed that subsequent to that, there was an occasion when several officers including the appellant had met PW1 and asked for information, but none was forthcoming. PW1 was given bail but not yet charged.

3. According to PW1, on 14th August, the appellant rang him up and asked him to come out. They finally met in Tsuen Wan. It was about 11 p.m. They then travelled on a public light bus going to Jordan Road. PW1 said that while they were on the PLB, sitting at the last row, the appellant asked PW1 to give him $5,000 per month and in return, the appellant would "take care of the selling of dangerous drugs" by PW1 in that he would tip-off PW1 on the movements of the police. He also promised PW1 that he would ask his senior officers not to charge PW1 for trafficking but the lesser offence of possession in respect of the drugs which the police had seized at PW1's home on 2nd August 1994. PW1 agreed to that suggestion and the appellant gave him some codes for future contacts. PW1 took out a medical card and wrote some characters thereon. The appellant also wrote certain characters and codes on it. The appellant was to be code named "Jim" and PW1 was to be called "Irene". These allegations formed the basis of the first count.

4. According to PW1, on the following day, 15th August, the appellant called him again at about 11:30 a.m. They met in Lo Tak Circuit in Tsuen Wan. They then went to the inside of a staircase of a building where PW1 gave the defendant $5,000 with a promise that the remaining $5,000 would be paid some time later. These allegations formed the basis of the second count.

5. PW1 was subsequently charged with trafficking of dangerous drugs and not simple possession. He reported the matter to the ICAC. On 22nd August, with the arrangement of the ICAC, PW1, in the presence of an ICAC officer, paged the appellant using the pager number given to him by the appellant. The call was made in the name of Irene without leaving any telephone number. A total of three such calls were made by PW1 to the appellant's pager number. It was only after the third call that a person rang up PW1. This person was alleged by PW1 to be the appellant. The three calls and this conversation were recorded. In this conversation, the person said that he was working and was being followed. He dared not ring up PW1 at home because someone was taping his home number. He told PW1 not to tell anyone about the case.

6. On 23rd August, at about 12:14 p.m., PW1, again with the arrangement of ICAC officers, paged the appellant using the appellant's pager number. The name of Irene was also used and PW1 left a mobile telephone number for a return call. That number was in fact provided by the ICAC. Shortly after that, someone returned call. PW1 alleged that it was the appellant. The gist of the conversation was that PW1 queried why he was still charged with a more serious offence and how he could deal with his court case. He asked for a return of the money and the caller agreed to do so and asked for PW1's bank account number. At about 1435 hours on the same day (23rd August), PW1 paged the appellant's paging number. He got a return call shortly afterwards. He gave the caller his account number and the caller said that he would put the money into the account on the following day. During this conversation, the caller said that he simply took time out to return the call because he was working. PW1 alleged that it was the appellant who returned his call. This conversation was also recorded.

7. The appellant was interviewed by the ICAC on 26th August. This interview was recorded on video tape. The appellant denied having the dealings as alleged by PW1. He denied that it was he who returned the calls to PW1. He also denied that he was the writer of the handwriting on the medical card.

8. At the trial, the appellant also gave evidence to the same effect, denying the charges, the alleged dealings and conversations, and the handwriting.

9. The learned Magistrate considered the evidence for the Crown and the evidence of the defence. He accepted the evidence of PW1. He warned himself of the danger of relying on the evidence of PW1 who was an accomplice in the absence of any corroboration. He further accepted the evidence of the handwriting expert that it was the appellant's handwriting which appeared on the medical card. He also accepted that it was the appellant who returned the telephone calls and spoke to PW1 as recorded. He found the medical card and the taped conversations as corroboration supporting the evidence of PW1. He had also taken into account the good character of the appellant. At the end he was satisfied beyond reasonable doubt that the appellant had committed the two offences.

The grounds of appeal

10. The first ground of appeal is that the trial Magistrate had erred in law and wrongly failed to allow the appellant to develop the issue of how he apparently wrote so well on the medical card during the journey in a PLB. The prosecution case was that the appellant did it on the PLB on the way to Jordan. The handwriting expert (PW6) testified to the effect that the handwriting was quite steady and that the person writing it must have something firm to support the writing and that there was no "tremors or hesitations" in these characters.

11. It is submitted that the trial Magistrate had cut short the appellant in his cross-examination of PW1 with regard to the circumstances as to how the medical card was written. The Magistrate had re-opened the case on another point during the appellant's final speech but did not allow the appellant leave to further cross-examine PW1 on this point. It is further argued that the Magistrate had speculated that the writing might have been done when the PLB was stationary and had failed to acknowledge that his own intervention had resulted in there being no evidence as to how the handwriting was written. Counsel submits that the Magistrate had been unfair towards the appellant in so dealing with this point.

12. In my view, whether the trial Magistrate had cut short the appellant's cross-examination of PW1 on this issue and if so, whether he was unfair towards the appellant must be considered in the context of this case. One has to look at the issue then before the Court, what happened before the Magistrate's intervention and the circumstances under which he did so. The defence was that the handwriting was not the appellant's, that he never wrote those words in the medical card, whether in the PLB or elsewhere and in whatever circumstances, whether the bus was stationary or moving. That was the issue.

13. Before the learned Magistrate's intervention at p.54 of the bundle, the appellant had already put questions to PW1 as to the lighting in the minibus, the number of pieces of paper used, whether there was any other copy, and what PW1 had done with the piece of paper. He then changed the subject to the restaurant. He came back to the time in the PLB and asked PW1 to whom the pen belonged and from where it was borrowed. At that time the expert had not given evidence. The question whether the writing was firm and whether there was any tremor or hesitation had not arisen yet. Since the main issue was whether it was the appellant's handwriting which appeared on the card, questions like who owned the pen and where it was borrowed from must be regarded as at most marginally relevant. In my view, it is not unfair for the learned Magistrate to remind the appellant to concentrate on the more important issues. Questions about the pen were indeed not important at all. Taking those questions and the intervention in context, I do not think it can be said that by so intervening, the learned Magistrate must have given the impression to the appellant that he should not ask any question as to what happened in the minibus.

14. Later in the trial, the expert confirmed that part of the handwriting on the medical card was that of the appellant, although he could not tell whether this was done while the PLB was stationary or under what circumstances. His evidence supported the evidence of PW1 that it was the appellant who wrote those words on the medical card. The fact that the handwriting was firm would mean that the handwriting was done in ordinary and normal style. In such case, the expert's opinion should be even more reliable and accurate. It is when the handwriting was unsteady or done with tremors or hesitations that it may be said that the expert's conclusion may not be reliable. It would seem therefore that any further cross-examination aimed at showing that the handwriting could not have been done in the PLB would not have any great significance on the main issue. Such cross-examination, even if it was successful, could only go to the credibility of PW1 as to where it was written. But it would not change the fact that it was the appellant's handwriting if the expert's opinion was accepted. And if it was his handwriting, this would support PW1's evidence that the appellant gave him certain codes for contact in future. It would also show that the appellant had not been telling the truth.

15. It is submitted that when the appellant sought leave to further cross-examine PW1, the learned Magistrate should have considered the point and given leave. It seems that at that stage the issue before the learned Magistrate, after the submission of the appellant, was that Sergeant Leung should be asked about the time when the appellant was alleged to be on duty and whether he had the opportunity to make a telephone call. That was understood to be the purpose of the application to recall Sergeant Leung for further cross- examination. In the context, that was also understood to be the reason for the appellant to require PW1 to be cross-examined. There was no indication as to what other issue the appellant wanted to deal with in cross-examining PW1 further. That one witness was to be recalled on a particular issue does not mean that the Magistrate should automatically grant leave to cross-examine another witness on some other issue. In any event, it is clear from the evidence that the telephone conversations on 23rd August were taped, with the time of such telephone calls recorded and that the return call to PW1 was within half an hour. That being the case, there would be no point in cross-examining PW1 further on this issue. The question was whether the appellant was on duty and had the opportunity to telephone PW1. It was not on the writing on the minibus. I therefore do not see how the learned Magistrate can be criticised as being unfair to the appellant in not allowing him leave to recall PW1.

16. I further take the view that the learned Magistrate cannot be accused of speculating as to the reason why the handwriting was firm when it was done in a minibus. I think it is common experience that the journey on a minibus from Tsuen Wan to Jordan at late hours at night would involve various periods of waiting. Furthermore, I think it is also clear to any person, who can read or write Chinese, that the characters written on the medical card were not deliberately and carefully written but casually and quickly. This was in fact confirmed by the expert. It is therefore not surprising that the handwriting which contained only 10 to 11 characters was not affected to the extent of showing any tremors or hesitations.

17. I do not think the first ground of appeal can be sustained.

18. The second ground of appeal says that the learned Magistrate had erred in law and wrongly failed to allow the appellant the opportunity to impugn the credibility of PW1 by eliciting evidence of his bad character or reputation. It is submitted that the credibility of PW1 is a crucial issue, particularly because PW1 had gone so far as to allege that the officers had planted some drugs in his premises but this had been rebutted by the prosecution and defence witnesses. Counsel argues that there is no rule of finality as to the cross-examination of bad character and that the learned Magistrate had wrongly denied the appellant such opportunity.

19. When one looks at the relevant part of the Notes of Proceedings relating to this point (pp.157 to 159), it is quite clear that the learned Magistrate was concerned that by allowing the appellant to cross-examine PW1 in connection with other alleged drug trafficking activities, "the Court will end up with all sorts of subsidiary trials going on at the same time". The evidence quite clearly shows that PW1 was a man of bad character. He was a suspect in a drug case involving the appellant and his officers. Witnesses both testifying on behalf of the prosecution and for the appellant confirmed that there were drugs found in PW1's house. He would be facing a trial in the Magistrate's Court for this. He was asked by the appellant and his officers to act as an informer on drug activities and this could only mean the police believed that PW1 was connected with the trade. All these the learned Magistrate had accepted and taken into consideration in this case. This is only a trial of the appellant. It was not a trial of PW1 in respect of the case in which the drugs were found in his premises. It is also not a trial of PW1 in connection with his drug trafficking activities in Tai Wo Hau, if any. The learned Magistrate is not required to make any finding of PW1's guilt in connection with these and other drug cases. In these circumstances, I see no reason why, the learned Magistrate, having accepted that PW1 was a person of bad character involved in and closely connected with drug activities, should go any further and look into these other cases. What was intended to achieve by referring to these other trafficking cases? In my view, the Magistrate was right in not allowing him to do so. This ground of appeal also fails.

20. The third ground of appeal says that the trial Magistrate erred in law and wrongly allowed the evidence of the medical card and the recorded telephone calls to amount to corroboration of PW1's evidence. The trial Magistrate had directed himself that it would be dangerous to convict the appellant on the uncorroborated evidence of PW1 although in law he was, strictly speaking, not bound to do so. It is submitted that since the learned Magistrate had adopted this, he had to be correct in his finding as to what could amount to corroboration.

21. With regard to the medical card, the argument is that because of the first ground of appeal, it is not safe or satisfactory to rely on it. This point has been dealt with. In my view, the medical card containing the handwriting of the appellant supported PW1's evidence that the appellant gave him certain codes of contact to facilitate the appellant to tip him off when the police were about to take action on drug activities. This was clearly in furtherance of the discussion as alleged by PW1 that the appellant solicited for bribes. The appellant's handwriting on the medical card was capable of corroborating PW1's evidence.

22. With regard to the recorded telephone conversations, it is submitted that the trial Magistrate was wrong to hold that it amounted to corroboration. It is argued that he was wrong in placing reliance upon PW1's voice recognition of the appellant as the caller and never acknowledged that this element was irrelevant as far as the issue of corroboration was concerned since this was not independent evidence of PW1.

23. In my view, the argument completely misses the point. The learned Magistrate did not hold that PW1's voice recognition of the appellant as the caller amounted to corroboration. He relied on PW1's voice recognition to establish who the caller was. Apart from this, there was ample other evidence on which the Magistrate could rely to draw the conclusion that it was the appellant who returned PW1's calls and that it was he who spoke on the phone in those calls which were recorded.

24. It is clear that when PW1 paged the appellant, he was not playing tricks on the appellant. People can of course play tricks on another by ringing his pager number and leaving a message. But this is not a case of playing tricks. PW1 paged the appellant upon the instructions and in the presence of ICAC officers. According to the records of Telecom, after the paging station had received a call for the appellant, they would page the appellant. In the normal course of event, the appellant would have immediately got the message on the pager. If anyone wanted to intercept the message, he would need the personal code number of the appellant. Even if he had the personal code, he would need to know when PW1 would be paging the appellant so that he (that person) could make use of the appellant's personal code, ring up the paging station and ask for the message. In the three calls made by PW1 on 22nd August, the name of Irene was used and no telephone number was left on the paging station. Hence, the person, even if he knew the personal code of the appellant and even if he knew when PW1 would be paging the appellant, would need to know the telephone number of this Irene. In a call made on 23rd August, PW1 even left the mobile telephone number of the ICAC with the paging station. Even if that person had intercepted these messages and returned the calls of PW1, he would not know what to talk about on the telephone with PW1. He may or may not know that PW1 was in the presence of an ICAC officer and that the telephone conversation was being recorded on tape. Finally, even if that person had the personal code of the appellant, knew when PW1 would be paging the appellant, knew PW1's telephone number, knew what to talk about with PW1, and knew that the conversations were being recorded in order to frame up the appellant, there is still a substantial risk that the appellant would in the normal course of event check with the paging station, ring up this Irene and the ICAC mobile phone. Then the appellant would be in a position to know that someone had intercepted his messages and the whole thing would come to light. There were altogether three calls on 22nd August by PW1 to the appellant and another two on the following day, 23rd August. Yet the appellant said that he had returned none of these calls.

25. It could not have been anyone in the paging station who returned PW1's calls. This is because the evidence shows that there were many operators on duty at any one time and that incoming calls would be allocated to the operators by computer. This means that no single operator would be in a position to select any particular incoming call. Hence, it would be extremely unlikely that it was the trick of the telephone operator who would have intercepted the calls made to the appellant and then returned those calls to PW1.

26. Furthermore, when one considers the contents of the recorded conversations, they were totally consistent with the allegations of PW1. Particularly, the telephone conversation on the 23rd August refers to the inspector or senior officers making decisions. That is consistent with the caller being a police officer.

27. In my view, therefore, the voice recognition by PW1 was only one factor in linking the appellant to the caller whose conversations had been recorded. In the light of all the evidence, I think the irresistible inference must be that it was the appellant who returned the calls to PW1 and not another person. Once it was established that the appellant must be the caller, the fact that he returned the calls of PW1 together with the contents of the conversations could be used as corroboration of the allegations of PW1. This is because if it was the appellant who returned call to PW1, then it supported PW1's evidence that he and the appellant had agreed to use Irene as the code of contact. It also belied the appellant's allegation that Irene was his girlfriend because he returned Irene's calls by ringing up PW1 notwithstanding the fact that no telephone number was left for the return call. I do not think there is any substance in the third ground of appeal.

28. The fourth ground of appeal alleges that at the end of the trial, the trial Magistrate did not make a proper record of his reasons for convicting the appellant. It is said that the appellant was then unrepresented, was then standing in court and did not make any note of the reasons for his conviction. It is argued that the trial Magistrate could not subsequently touch up on the reasons which he did not have in mind when he convicted the appellant. It is argued that there was no way to ensure that there was no significant divergences or inconsistencies between his oral reasons given at the end of the trial and his Statement of Findings. This failure, it is submitted, renders the conviction unsafe and unsatisfactory.

29. During the appeal before me, counsel does not seek to rely very heavily on this ground. This is because both counsel for the prosecution and the ICAC officer who attended the trial had made notes of the Magistrate's brief reasons for convicting the appellant at the end of the trial. It is quite clear from those notes that for example the learned Magistrate had reminded him of the danger of lack of corroboration and relied on the matters relating to corroboration. It cannot be said that there was any inconsistency between his Reasons and his Statement of Findings.

30. There are a number of other matters which, counsel submits, would cumulatively show that the appellant did not have a fair trial before the trial Magistrate. It is counsel's submission that each of these matters may not be sufficient to show that the conviction was unsafe and unsatisfactory but taken as a whole, they would.

31. It is submitted that the learned Magistrate had wrongly permitted counsel for the prosecution to ask PW1 a large number of leading questions in examination-in-chief as well as in the re-examination of PW3 on a matter which had never arisen in cross-examination. It is also argued that the trial Magistrate had asked a question at the close of the re-examination of PW6, the handwriting expert, but had wrongly failed to ask the appellant if he had any further questions arising therefrom. (Ground 5). Then it is also submitted that the trial Magistrate had failed to follow the evidence in respect of the identification parade and this is evidence wrongly admitted as a result of leading questions. (Ground 6)

32. I have looked at the questions put by counsel for the prosecution to PW1 and PW3. It is true that some of the questions were leading, but they were only in relation to matters which are not in dispute or formal matters. How a question is to be framed is of course a matter of personal style. One person may not like the style of another. However, I do not think that by asking those questions, counsel for the prosecution had exceeded her limit and had asked any improper questions. With regard to the Magistrate's failure to ask the appellant if he had any questions arising from his question of the expert at p.155 of the transcript, I do not think this can be a valid point. The learned Magistrate asked the expert why he disagreed with the suggestion that the handwriting on the medical card alleged to have been written by the appellant was a forgery of the control sample. The answer given by the expert was that it was not a forgery because it was the same handwriting and came from the same author. He had already given evidence as to why he considered that the handwriting on the medical card was that of the appellant after having compared that with the handwriting of the appellant in the control samples. In my view, I do not think the Magistrate's question and the answer (at p.155) carried the matter any further. It was simply a repetition in another way of what the expert had said in his previous evidence. I do not agree that there is anything wrong in leaving the matter at that without asking both the prosecution and the appellant to follow it up.

33. With regard to the evidence in respect of the identification parade, I think there is clearly a mistake in the transcript but the matter is clear beyond doubt. Firstly, in the admitted facts, (at p.333), it was admitted that there was an identification parade conducted on 8th September 1994 and the appellant was identified by PW1. But on p.40 of the transcript, the notes appeared to be as follows :

"Question: On 8th September 94, did you attend the ICAC office for an identification parade?

Answer: No."

Then on p.41, under cross-examination by the appellant, these appeared :

"Question: What date, what month were you at headquarters of ICAC to identify someone at an identification parade?

Answer: I can't remember."

And on p.47, the following was recorded :

"Question : Then we did not see each other after that?

Answer (By PW1): Yes, until the identification parade.

Question : Just now I asked what is date of identification parade - you can't remember.

Court: He has already said that when put to him: did he attend ICAC on 8th September etc., he said yes."

34. It is therefore quite clear that there was an identification parade in which the appellant took part and was identified by PW1 on 8th September 1995. The first part of the notes at p.40 was clearly not correct - when the answer should have been "Yes" instead of "No". I do not think anything can turn upon it.

35. The next point raised by counsel for the appellant is that the trial Magistrate had erred in law in wrongly admitting into evidence a bundle of photographs without the proper proof pursuant to s.65(c) of the Criminal Procedure Ordinance and s.26 of the Evidence Ordinance. (Ground 7) He argues that there was no evidence as to whom the photographer or developer was and whether the negative film had been properly processed or developed and whether the prints were exact prints of the negative film or were enlargements and/or had not been interfered with in the process of preparation.

36. Again, I do not think there is anything in this ground. The handwriting expert had obviously got control samples and the medical card P-1 for comparison. He did the examination of the handwriting samples and photographs were taken so that they were enlarged for easy reference and examination. His report obviously included the photographs. It is clear from the notes of proceedings that the appellant had agreed to the making use of the report including the photographs. No point was taken as to the chain of evidence regarding the photographs. I appreciate that the appellant was not represented and was acting in person. However, it is quite clear that as an officer of the police force, he has some experience of court procedures. Anyway, I do not think anything can turn on the chain of evidence with regard to the photographs. The appellant obviously had an opportunity of looking at the photographs. He had ample opportunity to cross-examine the expert on those photographs. In fact the photographs were there to assist the looking at the handwriting because they were enlarged. I see nothing which can be said to prejudice the appellant.

37. Finally, it is submitted that the trial Magistrate had erred in law in wrongly permitting PW2, Mr Chung Wah to refresh his memory from a witness statement whilst giving evidence. (Ground 8) This was the manager of Telecom. He was the responsible officer to retrieve certain paging records for the ICAC. These paging records referred to certain codes used by the paging station. When the witness was giving a statement to the officer of the ICAC on 5th February 1995, he was referring to a code card and was able to explain the codes by reference to this card. Counsel submits that the witness last read the said statement about one month prior to the giving of evidence. There was no evidence as to whether there had been any change in the codes between 31st August 1994 when the records were retrieved from the company and 15th February 1995 when the witness refreshed his memory in giving the witness statement.

38. It is quite clear that the paging station has to work on codes, rather than long hand messages. As the manger of the company, PW2 obviously could not remember the details of the codes. It was therefore necessary for him to refer to those codes and the code card. This is the case whether he was making a statement to the police or giving evidence in Court. When he was giving a statement to the police, it obviously makes sense if he was holding the code card in order to explain what the codes meant. In my view, it cannot be objectionable to allow him to refresh his memory from his witness statement in referring to the code card. If there had been any changes in the codes between the time when the paging records were retrieved by the ICAC and the time he referred to the code card in giving his witness statement to the ICAC, he would have mentioned that either in his statement or in his evidence in court. Furthermore, the codes were there for use by the operators as well as patrons. I do not believe that there would have been any changes within 5 1/2 months. This would certainly have been made known to all parties concerned. I do not think anything can turn on this extremely technical point.

Conclusion

39. When one looks at the evidence of the case including the evidence of PW1, which was to some extent corroborated by the medical card containing the appellant's handwriting, the contents of such writings, the telephone conversations recorded by the ICAC and their contents, there is ample evidence upon which the learned Magistrate can rely to convict the appellant. In fact I must say that the evidence is overwhelming. The learned Magistrate had already warned himself of the danger of relying on the evidence of PW1. He had also alerted himself to the bad character of this witness. Having considered all the evidence and the points submitted by counsel for the appellant, I do not think for one moment that there is any ground in this appeal. It must be dismissed.

[Submissions on sentence]

41. The appellant was convicted after trial of soliciting and accepting an advantage as public servant, contrary to s.4 of the Ordinance. He was sentenced to 2 1/2 years' imprisonment on each count, both sentences to run concurrently.

42. The appellant is an experienced police officer entrusted with the duty of enforcing the law. What he had done in this case was a serious abuse of his office. He solicited money in return for his persuading his senior to charge the witness with a lesser offence, and what is more, he asked for regular payments for his tipping off the witness of police movements in order to assist the witness in his drug activities. If this scheme was carried out, the appellant would be making use of his position to help in offences which it was his duty to stamp out. It would in fact encourage drug activities. I think the magistrate was clearly right to treat this matter as a very serious case. Needless to say, what the appellant had done was to undermine the public confidence in our police force.

43. The maximum sentence for a s. 4 offence upon a summary conviction is 3 years. While this case arguably may not be the worst of its kind before a magistrate's court, I should think, as the learned Magistrate did, that it would merit a sentence which is very near the maximum.

44. We have a Court of Appeal decision which suggests that immediate custody sentence is called for with a minimum of 12 months. I have been referred to various cases but I do not think they are helpful. First, some of them did not involve public servants entrusted with the enforcement of law and order and some of them were not s.4 offences. Secondly, I think it is difficult to set comparables. In this sort of cases, one has to look at the degree of culpability, the scheme involved and the other circumstances.

45. It is submitted that what was involved in this case was a small amount. With respect, I do not agree. If that refers to $5,000, this certainly is not a very large sum compared with the sums involving the other cases. But I think the amount involved in corruption cases is not the most important factor. In my view, the scheme involved and proposed in this case is also very significant.

46. It is further submitted that the learned Magistrate had been inconsistent in that at the end of the trial he seemed to have treated the clear record of the appellant as of a very limited value whereas he had shifted his ground in his Reasons for Sentence and had given credit for that. In my view, for police officers, one would expect not only a clear record - that is of course taken for granted - but also a very high degree of integrity. I think all the learned Magistrate was saying was that a clear record in the case of a police officer would not be a very strong mitigating factor. Nonetheless, it does appear that he had taken that into consideration. I do not think he can be criticised.

47. I bear in mind the family background of the appellant and his service in the police force. But that is about all that can be said in his favour. In my view, after having him some discount for that, while the overall sentence of 2 1/2 years for the two offences may be slightly on the high side, I do not think it is either wrong in principle or manifestly excessive. In the circumstances, the appeal against sentence is dismissed.

Representation:

Mr Cantrill, S.C.C., for Crown (appearing on 25th April 1996) and Mr Wesley Wong, S.C.C., for Crown (appearing on 31st May 1996)

Mr Christopher Grounds, inst'd by M/s Kwan & Kwan, for Appellant