Lee Sui Luen v. The Queen

CACC001012/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1012 OF 1975

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Coram: Briggs, C.J., Huggins & Pickering, JJ.

Date of Judgment: 6th December, 1975.

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JUDGMENT

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Pickering, J.:

1. The appellant, a registered medical practitioner, appeals against concurrent sentences of nine months' imprisonment imposed upon five charges of accepting money from one SO Kwok-kam in connection with the sale of pharmaceuticals by So's employers to the appellant's employers, the Kowloon Motor Bus Company (1933) Limited, contrary to s.4(2)(c) of the Prevention of Bribery Ordinance (Cap. 201).

2. To these offences the appellant had pleaded guilty and the details of the offences are unimportant for our present purposes except to say that the admitted receipt of "kick-backs" by the appellant was of very long standing, having been authorised by the manager of the predecessor company of the Kowloon Motor Bus Company (1933) Limited and having been continued after the incorporation of that company and still continued after the enactment of the Prevention of Bribery Ordinance.

3. Mr. Oswald Cheung, Q.C., for the appellant, after a very careful review of the appeals and applications for review dealt with by this Court under the Ordinance during the last two years, submitted that this was one of those "rarest of cases" referred to in Application for Review No. 3 of 1974, in which an immediate custodial sentence was not warranted. Counsel referred to the case of Reg. v. O'Keefe⁽¹⁾ where Lord Parker, C.J. said:

4. The learned magistrate, counsel submitted, was probably unaware of the process which he should have gone through on the basis of that case before arriving at his sentence.

5. This Court having laid it down that in all but the rarest of cases sentences other than immediate custodial sentences are wrong in principle for offences under s.4 of the Prevention of Bribery Ordinance, we think that the principles laid down in O'Keefe can have no application to this type of case in Hong Kong. Rather is the process the reverse; the judge or magistrate should commence his deliberations from the standpoint of an immediate custodial sentence being the norm except in very rare cases and he should ask himself whether the case before him is one of those rare cases. It is only when he decides that it is and that a suspended sentence would be appropriate, that he is required to go further and ask himself whether there is any reason for employing greater leniency than such a sentence and so coming to a consideration of the possibility of a fine or a probation order.

6. Mr. Cheung also submitted to us that the second schedule to the Prevention of Bribery Ordinance contains a heterogeneous assortment of institutions and organisations some of which have a close association with the Government and others no apparent association and that this latter class appears to have been selected arbitrarily and upon no discernible principle. The members of organisations of this latter class, counsel urged, and the appellant in particular, had considerably less trust reposed in them than had members of organisations, e.g. the Royal Hong Kong Police Force, which were directly associated with the Government and for that reason it would be appropriate in the case of many such individuals that sentences in respect of this type of case should be suspended. We are unable to agree and unable to countenance any such double standard as is here suggested. The degree of trust reposed in any individual offender may well be a legitimate matter influencing the length of an immediate custodial sentence but it is not a matter which should result in the suspension of sentence and we must decline to give our blessing to the very considerable encroachment here proposed upon the norm which we laid down in Application for Review No. 3 of 1974.

7. It is true, as the appellant's counsel has submitted, that the cause of action which has led the appellant to his present predicament was one initially authorised by his employers and there may be some small substance in the suggestion that the continuation of this course of conduct after the enactment of the Prevention of Bribery Ordinance, was the result of inertia. If that be so, generous recognition of that factor has been given in the lenient sentence of nine months' imprisonment imposed.

8. Again, we are unable to agree with Mr. Cheung that the numbers of person likely to be in need of deterrence in respect of this form of commercial kick-back is small. The daily experience of the courts makes it indisputable that this is not the case and that this is an area where deterrence is much in need.

9. It was for these reasons that we dismissed the appeal against sentence.

Representation:

Oswald Cheung, Q.C. & E. Chan (F. Zimmern & Co.) for appellant.

Duffy, C.C. for respondent.

(1) 1969 2 Q.B. 29

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 1012 OF 1975

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Coram: Briggs, C.J., Huggins & Pickering, JJ.

Date of Judgment: 6th December 1976.

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JUDGMENT

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Huggins, J.:

10. I think it is important to understand what were the facts of this case and what they were not, for the financial results accruing to each of the three parties to the arrangement could have been achieved in several ways. It could have been agreed that the goods required for the clinic should be purchased by the bus company at a discount and that the bus company should pay the Appellant a "commission". That would have been lawful before the passing of the Prevention of Bribery Ordinance but unlawful when the Ordinance came into force. Alternatively it could have been agreed that the goods should be purchased at the list price and that the supplier should pay the Appellant a "commission". That would have been lawful before the passing of the Ordinance but unlawful when it came into force. Where a course of criminal conduct has continued over a long period of time that is normally an aggravating factor, but that principle should not be extended to include a period when the conduct was lawful, however immoral: on the contrary, if this had been the situation in the present case, we might have had to consider whether the Appellant was not entitled to some measure of leniency, because his guilt might have consisted in not appreciating that what was formerly lawful had become unlawful even if what was being done had the consent of the bus company. In fact the parties appear to have adopted yet another alternative method of obtaining the same financial result: the suppliers invoiced more goods than were actually delivered and were thus paid for goods which everyone knew ought not to be charged for at all, after which they paid the Appellant a "commission". I say that "everyone" knew, because it appears to have been accepted by the magistrate that the bus company, at least in the early days, did agree to the Appellant's accepting "commissions" and it was presumably aware of what was done pursuant to that agreement. Whether any one in the bus company has been so aware since the company went public does not appear.

11. Whatever may be said about the first two methods I do not think any honest person could have believed that the third method was proper, even if done with the full consent of the bus company, and it is that which persuades me that we ought not to interfere with the magistrate's decision to impose an immediate sentence of imprisonment.

6th December 1976.

Representation: