The Queen v. Mok Wei Tak and Another

CACC000196/1985

IN THE COURT OF APPEAL

BETWEEN

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Coram: Li, V. -P., Silke, J. A. & Power, J.

Date: of Hearing: 6th August 1986

Date: of Handing Down Reasons: 15th August 1986

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SENTENCE

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Silke, J. A.:

1. When the appeals of both Mok Wei Tak and. Mok Chiu Yee Man were dismissed on the 6th of June we were asked by counsel then appearing for both Applicants, and upon their express instructions, to adjourn the matter of the appeals against sentence until such time as leading counsel could attend to make submissions. We acceded, with some reluctance, to that request.

2. The sentences against which the appeal lay were: David Mok: six years' imprisonment; a fine of $400,000 or one year in default of payment; an order that he pay 70% of the tax costs to the Crown. As regards Mrs. Mok: two years' imprisonment; a fine of $200,000 or one year in default of payment; and an order that she pay 20% of the tax costs to the Crown.

3. At the conclusion of the hearing we granted the applications for leave to appeal and allowed the appeals. We set aside the 6 years imposed on David Mok and substituted therefor a sentence of three years' imprisonment. We set aside the order for a fine and quashed the order as to costs. In the case of Mrs. Mok we set aside the sentence of imprisonment imposed upon her and substituted therefor a sentence of 18 months' imprisonment suspended for two years. We set aside the fine imposed and quashed the costs order.

4. In deference to submissions made by counsel, Mr. Hidden for David Mok and Mr. Oswald Cheung now appearing for Mrs. Mok, and as a result of certain matters raised therein we stated we would give our reasons later and this we now do.

5. David Mok was convicted after trial by jury of having income which funded a standard of living and which income came from tainted sources - in a word corruption. We accept that there was no direct evidence led at trial as to corruption. The jury was clearly so directed by the trial judge when he said:

"He is not charged with corruption. There is no evidence against him that he solicited or received any bribe, or that he abused his position in the Public Works Department so as to obtain favours for others. For this specific offence, members of the jury, which you have to try, the Crown does not have to prove corruption on his part. There is no evidence of corruption having been committed by him."

This is the context of the way in which the trial was conducted. As I pointed out in the course of the judgment dismissing the appeals against conviction the Crown's case had been based on five specific transactions. Of those five two were not proceeded with because the witness whose evidence was necessary to their proof was not called. The other three matters were the $90,000 cash, the $140,000 cash and the $300,000 cash, which last went to Macau, none of which had any corresponding withdrawal from the bank accounts maintained by the Appellants. It was these that required an explanation and it was upon these amounts, no satisfactory explanation having been given, the jury convicted. They were, of course, aware of all of the rest of the evidence which had been adduced in the course of the lengthy trial including that of the property development witnesses and of the Crown's general contention that there was identifiable, expenditure of $5.8 million, identifiable income of $5.4 million and total official emoluments of $340,000 during. the charge period.

6. From the property development witnesses, they were aware of David Mok's highly undesirable foray, that is from a person holding the position he did, into property development.

7. We have had placed before us today two matters which were not, though they should have been, before the trial judge. The first is a precis of the Departmental Confidential Reports made upon David Mok in this capacity as a civil servant. The second is an itemized list of the costs paid to the Moks' legal advisers and to the accountants who assisted them and gave evidence in the course of the trial. These, including the costs of the appeal and this appeal against sentence, total slightly over $4 million. There have been borrowings. We have also been informed by Mr. Hidden that there are now but two properties left in the Moks' control. One, a flat in London valued at about £40,000stg and the second, a flat in Hong Lok Yuen, presently. let at a rent of $11,000 per month, which is valued at approximately $1 million and upon which there exists a mortgage for $600,000 Everything else has been sold and at disadvantageous prices.

8. Mr. Duffy has been good enough, on behalf of the Crown, to inform us that he does not contest any of that of which we have been informed.

9. Mr. Cheung tells us that Mrs. Mok is now of net negative worth, that the marriage has completely broken down and that her share of the London flat would be about half of the value and of the Hong Lok Yuen flat less than that. Both premises have been on offer for sale for some time without any sale being effected.

10. These two new pieces of evidence permit us to view the matter in a fresh light.

11. David Mok is now fifty years of age and his general health is not good. He was, until interdicted in 1983 when acting as Director of the Building Development Department, a man with an exceptional record of service as a civil servant in the department in which he worked. His work output was stated to be "prodigious". He had, over the years, developed a maturity and wisdom in his dealings which commended him to his superiors and which led to his rapid and deserved promotion. He had ample scope to rise still further. All of this has been negated, his future abandoned and his standing in the community destroyed by reason of his folly - and be it remembered that this was criminal folly. Be it also remembered that the public are entitled to expect integrity from its servants and particularly from those servants who rised to great heights.

12. He has paid a great price and while this results from his own act, it is nevertheless something which a sentencing court may properly take into consideration. He has suffered considerable monetary loss including, of course, the loss of the pension to which he would, upon retirement, have been entitled.

13. The trial judge cannot be faulted in his imposition of the monetary penalties for it is the duty of a defendant if he wishes to rely upon a lack of means, to place the full facts before the sentencing court. In the Court below, other than a reference to the fact that accountants and lawyers cost money and that what moneys David Mok had were gone, used for this purpose, no details of any kind were brought to the attention of the trial judge nor, as I said, were any details of the Confidential Reports though this omission was in the interest of bringing the matter to a speedy conclusion.

14. Mr. Hidden, and Mr. Cheung seeks to take advantage of those submissions, has brought to our attention three cases dealing with the imposition of sentences of imprisonment for offences under section 10 of the Prevention of Bribery Ordinance. The first in time was Carlyle ⁽¹⁾ the second Wilkinson ⁽²⁾: the third Tam Woon Cheung ⁽³⁾. These were all applications by the Attorney General for the review by this Court of sentences passed in the trial court and in none was that sentence altered.

15. In Carlyle ⁽¹⁾, the respondent was a senior police officer charged under section 10(1)(a) and the unexplained amount came to $66,341. He pleaded guilty before a Magistrate. The Magistrate took the view on the admitted facts that Carlyle had received advantages which did not relate to his duties. He treated the case as exceptional and imposed the sentence of 12 months' imprisonment suspended for two years together with a fine of $25,000. That sentence was not altered upon Review.

16. In the course of the lead judgment, Pickering J. A. noted that he thought the norm should continue to be, as it had been in past cases cited to the Court, custodial sentences but that the exceptional case may arise of which Carlyle was one. He considered a submission by counsel then appearing for the respondent that a court should consider whether the background to the offence, once a conviction has been come to, was one which more nearly applied to the section 3 type of offence rather than the section 4 type: that is between the acceptance of an advantage without permission and accepting an advantage as an inducement or award in respect of the exercise or non-exercise of duties.

17. The effect of that judgment is that sentencers should, in exceptional cases and where there is no direct evidence of actual corruption, treat the matter in a somewhat less serious light. Huggins J. A. (as he then was) took the view that Carlyle was somewhat fortunate and that had an immediate term of imprisonment been imposed the appeal against sentence would not necessarily have succeeded. He emphasized that, there having been a plea of guilty, no evidence was called and had there been one did not know what might have emerged. He felt the Magistrate. Was right, on the admitted facts,:

"....to take the view that while the Respondent was not corrupt in the sense I have defined he received presents Which he should have declined but which did not relate to the performance of his duties."

18. The general line of Carlyle ⁽¹⁾ was followed in Wilkinson ⁽²⁾. Wilkinson was charged under section 10(1)(b). The Report does not make it clear whether or not there was a plea of guilty. The facts showed that the "advantage" was one of $107,860.16. He was sentenced to one year imprisonment suspended for one year.

19. In Tam ⁽³⁾ the charge was one under section 10(1)(b), the respondent was a clerk of works grade II in the Public Works Department and the sum he was found to be in control of without explanation was $335,000. The sentence was two years' imprisonment suspended for three years imposed after the respondent had changed his plea in the course of the trial.

20. In declining to alter the sentence the Court again followed Carlyle ⁽¹⁾ and Wilkinson ⁽²⁾.

21. For myself, I would have thought that the distinction drawn by these three authorities as between a section 3 and a section 4 offence when the actual charge is one under section 10 of the Ordinance is, except in the most exceptional cases, a little fine for section 10 charges are brought when the Crown has no direct evidence of corruption. The basic element in all of them is, noting the short title of the Ordinance, corruption. I would nave thought it unlikely that a public servant, having accepted an advantage, could view it as anything other than one for which he might expect to have to pay in the future if that advantage came from those who have had or will have dealings with him in his official capacity.

22. This is not an exceptional case, its criminality is serious and it is one which we consider merits a custodial sentence.

23. Having said that, in passing the sentence he did, the trial judge, who had had a very difficult trial, went, we think, too far in saying:

"The facts of this case demonstrate, to a horrifying degree, a course of corruption on a long scale over a long period of time."

It was a conviction based upon the case presented by the Crown of failure to explain three specific sums - and while noting Mr. Cheung's submissions that we should take the view that we do not know upon what particular basis or in respect of what particular sum the jury came to their conclusions - it was the total of these three with which the sentencer should have been concerned and the circumstances surrounding them. When the judge said a few moments later :

"Of course, it is not suggested that all that money '(that is the totals in and out)' was corrupt money. He did come from a wealthy family. There was, however, this minimum unexplained income or, as it has been called in this case, unexplained, additional resources."

He was foreshadowing the approach which we think to be the proper one and which we ourselves now adopt.

24. Bearing in mind all the circumstances of this case as they are now known to us, the approach which we think to be the proper one, and not neglecting the words of Huggins J. A. in Wilkinson ⁽²⁾ that a sentence of imprisonment upon a public servant is "no light matter", we thought that the sentence of six years' imprisonment imposed on David Mok was much too high. In the circumstances here we thought the punishment we imposed would sufficiently underline. the abhorrence of society of the form of activity by its public servants as here disclosed.

25. We are now satisfied that, if the fine and the costs order were left, David Mok would not be able to pay them and further that even if they were to be paid over a period by installments, they would make impossible the likelihood of his ever being able to rehabilitate himself when he finishes his sentence..

26. Mrs. Mok clearly aided and abetted her husband in his corrupt activities and that assistance was given to him by, if I may so put it, his wife. She has suffered greatly in health, having in the course of these protracted proceedings, had a nervous breakdown. She has had the ordeal of having had to listen in public to references to her husbands mistress. She also has lost her standing in society and, tragically as we have been told, amongst her family. We accept that the part she played merited imprisonment but we think ourselves to be justified in the exercise of clemency. She has suffered great punishment already.

27. Even had we not today removed the fine and costs order in respect of David Mok we would have been minded to take that course in any event in respect of Mrs. Mok for the fine is really a dual fine upon the family finances.

(1) [1976] H.K.L.R. 60

(2) [1977] H.K.L.R. 317

(3) Application for. Review No. 10 of 1984 (unreported)

Representation:

Anthony Hidden, Esq., Q. C. & R.K. Sujanani, Esq. (K.K. & Winston Chu) for D1.

Oswald Cheung, Esq., Q. C. & R.K. Sujanani, Esq. & Walter Lau, Esq. (Poon & Sum) for D2.

J.M. Duffy, Esq., Q.C. & Miss Helen Lee for Crown.