The Queen v. Kung Ying-man, Spencer

CACC000513/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Li, V. -P., Yang J. A. & Penlington J.

Date of Hearing: 21st November 1986

Date of Judgment: 21st November 1986

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JUDGMENT

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Li, V. -P.:

1. The applicant was convicted of 13 out of 43 charges involving accepting an advantage through his own plea. The agreed facts as submitted were that he was a sales manager of Cathay Pacific Airways Ltd. from 1st July 1978 up to 21st October 1985. He had an outstanding service record and a brilliant career.

2. It was alleged he on different occasions, between 1982 and 1985 obtained money from John Fung of World Transportation Ltd. and Peter Wu of Broadair Express Ltd. in consideration for giving priority to these two companies cargo space for air flights of the CPA from Hong Kong to London. He was in charge of allocating cargo spaces. In some instances he was paid 35¢ a kilo, in others 50¢ per kilo of cargo. The total sum received in respect of the 13 charges come to about $315,000.

3. He used his co-accused who was his subordinate to pay the cheques he received to his personal account. He then obtained the cash. He paid his co-accused for this service.

4. In his Reasons for Verdict the sentencing judge referred to his position of trust, that he had already ruined any prospect of future employment and his clear record. He also referred to the multiple offences over a long period of time.

5. The judge sentenced him to 18 months imprisonment in respect of each of the 13 charges to run concurrently. This sentence imposed was after hearing counsel all that could be said in the applicant's favour.

6. The applicant started young at a lowly position of a clerk in the airline in the 1960s. Through his effort he rose to the rank of cargo sales manager in the late 1970s. He had a clear record. The breach of trust was not a matter of taking the employer's money or taking money entrusted by clients. It was clearly a matter of getting some money for himself from the employer's client with the latter's consent.

7. Emphasis was made that he pleaded guilty, he rendered valuable service to the public in the mid-1960s - the time of the riot. Complaint is made that the sentence is manifestly excessive. It is contended that the judge had not given sufficient weight that he has now ruined his career, that it would be impossible for him to find a similar job in the future, and there will be no danger of the repetition.

8. Another ground in support of his application is that the judge erred in not giving sufficient weight or the fullest weight that he was a first offender. The judge referred to him as a technically first offender.

9. Another complaint is that the judge erred in regarding the appellant as having accepted advantages from a number of agents of the airline when he was only charged and pleaded guilty to having received advantages from only two of the CPA's agents. A song and dance was made on the judge's remark that the applicant ''received money from at least two of CPA's agents''. It is contended that the statement implied he accepted from many of the agents but at least two was found. In fact the judge was saying that at least he received from two agents. There is no merit on this point at all.

10. Learned counsel addressed us in some length, repeating what was addressed to the court below. His points had been dealt with in the Reason for Sentence by the learned judge.

11. In a case of this nature, it is argued, no one suffers except the competitors of the various cargo agents who wanted to despatch cargo from Hong Kong to London. It is true that they might be affected. But there is also another victim which is the legal person of CPA, the airline itself. If this practice persisted its good name would be affected. There is also the potential danger. Other cargo agents, when they find that by paying a little extra that their goods will get to London a bit faster they will be in a position to pass on and demand a higher rate of freight from their other manufacturers or exporters.

12. As it was said in the Court of Appeal in the case of Wilson ⁽¹⁾ at P. 337:

The trial judge observed that corruption of this kind was insidious. It was rotten and it did great harm to people in commerce and business life who always behave honestly.

We do not for one moment disagree with those observations which were very properly made. This kind of conduct is damaging to commercial life and those who indulged in it must expect to be in prison immediately although of good character previously.

13. A further argument advanced in support of this application was that in the case of Lai Yuk-kui v The Queen ⁽²⁾ learned Chief Justice having reviewed the authorities said:

To these I would add the following additional guidelines. I suggest that magistrates should approach the question of penalty to be imposed for such an offence on the basis that the usual minimum imprisonment should be twelve months. This guideline, of course, is not to be construed as interfering with the usual discretion of a magistrate to impose a lesser or greater sentence when the case justifies it.

The same principles should apply to a person convicted of an offence against sections 5, 6 7 and 8 of the Prevention of Bribery Ordinance, though I express no view as to appropriate sentences for offences against sections 3 or 9 which involve a far wider range of moral culpability.

It appears that during the past year or two the courts have not been inclined to be as severe on corrupt offenders as they were a few years ago. Perhaps in the belief that corruption was less widespread than it used to be.

14. Having regard to the offences in the present case we are of the opinion that they are serious. The applicant reached his high position was able to make such demand and receive such money. The clear record and the distinction can count very little - Barrick⁽³⁾.

15. Having considered the matter we come to the conclusion that 18 months imprisonment in the circumstances may be slightly high when compare with the case of Wilson ⁽¹⁾. However, in view of the whole facts of this case and the quantum of the money received we are of the opinion that 18 months imprisonment is not manifestly excessive. The application for leave to appeal against sentence is refused.

(1) 1982 4 Crim. App. Report (Sentences)

(2) 1981 HKLR 691

(3) (1985) Cr. App. R (Sentences) 142

Representation:

Mr. A.W. Sedgwick, Q. C., Mr. Peter Nguyen (J. Fang & Co.) for Applicant

Mr. Cross (Crown Prosecutor) for Respondent