Lee Kong Chung and Another v. The Queen

CACC000393/1980

-----------------

Coram: Roberts, C.J.

Date of Judgment: 11 June 1980

-----------------

JUDGMENT

-----------------

1. This is an appeal against sentence by two driving instructors who pleaded guilty to various charges connected with the soliciting or acceptance of bribes in relation to the passing of driving tests.

2. The first appellant, LEE Kong-chung, pleaded guilty to four charges. The first was inciting one of his pupils to pay $700 to him, whereupon he would arrange for the pupil to pass his driving test. The pupil refused to pay the sum and subsequently failed his driving test.

3. The second charge alleged that the first appellant asked the second defendant, who was another pupil, if he was prepared to pay $700, so that it could be arranged that he should pass the test. The student paid this amount, $400 of which was passed to a motor vehicle examiner called LEE Nai-liang. The rest was retained by the first appellant.

4. The first appellant reached an arrangement with the second appellant, another driving instructor, whereby the second appellant was to collect money from students and pass it on to the first appellant. He would take a share before passing the remainder to the same driving examiner, LEE Nai-liang, who would ensure that those who paid would pass their driving tests. The third charge related to the sum of $1,500 paid by a pupil and the fourth to the payment of $1,200 by another pupil. Of the payment of $1,500, the second appellant retained $1,000, the first appellant $100 and $400 went to the examiner. Of the payment of $1,200, the second appellant kept $600, the first appellant $200, and $400 went to the examiner.

5. It is clear from the evidence that the initiative for this conspiracy came from the driving examiner, LEE Nai-liang, who made the approach to the first appellant; the latter in due course approached the second appellant and brought him into the arrangement.

6. My attention has been drawn to several prosecutions for offences of a similar nature relating to the passing of driving tests. In two of these cases driving examiners were involved. Both of them were sentenced to suspended sentences of imprisonment. No doubt there were special circumstances in both cases which persuaded the magistrates to be more lenient than I would have thought they should normally be. In general, however, where a driving examiner, who is a public servant, is convicted of soliciting or accepting bribes in relation to the passing of driving tests, an immediate custodial sentence should normally be imposed; only where there are unusual extenuating circumstances should the sentence be suspended.

7. The other cases to which I have been referred relate to driving instructors. Here there is a wide disparity between sentences. In some cases, suspended sentences of imprisonment have been imposed; in other substantive sentences ranging between six and eighteen months were imposed.

8. Generally speaking the culpability of driving instructors is somewhat less than that of driving examiners. Although they are taking part in an arrangement which may lead to grave consequences, in that they are seeking to arrange, by the payment of money, for the passing of driving tests by persons who may not be fit to pass them. It must be obvious to anyone that the presence of unqualified drivers on the roads only lead to serious accidents.

9. Against this background, I cannot say that a magistrate is wrong in imposing an immediate custodial sentence on a driving instructor. Though I suggest that a magistrate may be readier to suspend a sentence of imprisonment in the case of a driving instructor than he would in the case of a driving examiner.

10. That, however, is not an end of this appeal. I have to give weight to the suspended sentence imposed on the driving examiner, who was the initiator of the corrupt conspiracy. I have been told by Mr. Sinclair that there were special personal circumstances which inclined the magistrate to an unusual degree of leniency. Nevertheless, there appears to me to be a striking disparity between the suspended sentence imposed upon the major conspirator and the custodial sentence imposed upon the two instructors. Both of them are men with clear records, who have been driving instructors for many years, and who will no longer be able to earn their living in that manner in future, as a result of their convictions.

11. I accept that they would feel a very strong, and to some degree justifiable, sense of grievance if obliged to serve a term of imprisonment, whereas the major figure will almost certainly not.

12. Without wishing in any way to minimise the seriousness of the conduct to which they pleaded guilty, I have decided to vary their sentences by suspending all the sentences of imprisonment imposed on each of them for a period of two years.

13. I also impose fines of $1,000, on each appellant, seven days to pay; two months in default.

Representation:

P. Nguyen (Della Chan & Geoffrey Hui) for 1st appellant

Y.C. Mok (T.S. Tong & Co.) for 2nd appellant