BETWEEN: v THE QUEEN

CACC0002189/1976

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Coram: Briggs, C.J.

Date of Judgment: 15th March, 1976.

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JUDGMENT

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1. These cases are all cases where an appellant pleaded guilty to an offence or offences contrary to section 3 of the Prevention of Bribery Ordinance. With one exception, [Criminal Appeal No. 219] each appellant was sentenced to be conditionally discharged on entering into a recognizance to be of good behaviour and to appear for sentence when called on during the next three years, and to pay costs of $100. In each case one or more convictions were recorded. Against those sentences each appellant has appealed.

2. I will deal with Criminal Appeal No. 219 (HO Wai-kwok v. The Queen) separately later.

3. Before me, the appellants were represented by Mr. Eddis and Mr. Sedgwick; the former counsel appeared for the appellants in Criminal Appeal Nos. 218-222 and the latter for the appellants in Criminal Appeal Nos. 232-238.

4. The appellants are all members of the Housing Department of the Hong Kong Government. In each case the appellant pleaded guilty to accepting a loan from a person, who is a fellow member of the same department. This is contrary to section 3 of the Prevention of Bribery Ordinance which makes it an offence for a Crown servant, without the general or special permission of the Governor, "to accept an advantage": and "an advantage" includes "a loan". This provision of the law applies to Crown servants specifically and to Crown servants only.

5. In the court below none of these appellants was represented, although the appellant in Criminal Appeal No. 237, PANG Chik-chan, engaged the services of a solicitor when he applied for a review of the magistrate's decision.

6. The grounds of appeal are that the sentences are excessive: that it is unfair that a conviction should be recorded against the appellants because they are persons, who have been in the service of Government for a considerable number of years, and in all probability if a conviction is recorded, it would result in the dismissal of the appellants and in the loss of their pensions which they have earned.

7. The appellants were not represented in the court below and as each appellant pleaded guilty the details of the loans which were accepted by each individual appellant were not given that prominence which might have been of advantage to an individual appellant. I do not blame the magistrate for this. He acted on the case as it was presented to him and pronounced judgment and gave reasons for his sentence in the usual way.

8. I think it might be of value to deal with each case individually: I am indebted to counsel for the following facts.

9. Criminal Appeal No. 218 (LEE Shing-tim). This appellant has 8 ½ years' government service. He pleaded guilty to two offences, one in November 1973 and one in March 1975. The first loan was for the sum of $2,000 and the second was for $1,000. The loans were to be used for necessary car repairs. They were repaid within two months and the interest was 8% per month or 96% per annum.

10. Criminal Appeal No. 220 (LI Kai-chi). This appellant has eighteen years' government service. He received a loan of $1,900 in April 1974. The period of the loan was for four months and the reason that he required a loan was that he was behind in the payment of his taxes. Again the same interest was charged.

11. In each case, one WONG Kam-ming, an officer serving in the Housing Department was the lender and on each occasion he charged the exorbitant rate of interest mentioned above.

12. Criminal Appeal No. 221(LEE Hon-choy). This appellant has ten years' government service and he earns a salary of $1,940. In November 1973 he borrowed $2,000 which was a loan for two months and which he repaid. The reason for the loan was that he required the money for relatives in China.

13. Criminal Appeal No. 222 (LAM Chi-cheong). This appellant has thirteen years' service with Government. He borrowed $20,000 in January 1973 and the reason for borrowing such a sum was for speculation on the stock market. This was repaid within the time of the period of the loan.

14. Criminal Appeal No. 219 (HO Wai-kwok). This appeal stands in a position on its own. This appellant was found guilty of three loans. One loan was for $7,000 in January 1974, the second loan was for $5,000 in February 1974 and the third loan was for $5,500 in August 1974. This case differs from all the other cases. The appellant also asked for nine other cases of loans to be taken into consideration which were loans in 1973, 1974 and 1975. These loans were for the purpose of investment on the stock market and as he was unsuccessful in his speculation he borrowed more money. The magistrate in this case imposed a fine of $1,000 necessitating, of course, the recording of the conviction.

15. All the above cases were defended by Mr. Eddis.

16. The following cases were defended by Mr. Sedgwick and I will deal with each one briefly.

17. Criminal Appeal No. 232 (Yeung Ping-kwong). This appellant has fifteen years' government service and is earning $2,500 per month at the moment. He is doing a course of training at the Hong Kong University to enable him to become a professional Associate of the Institute of Housing Managers of the United Kingdom. He obtained a loan of $2,000 in January 1975 at the Chinese New Year. The reason for his financial embarrassment was that he used all his savings because he had recently got married.

18. Criminal Appeal No. 233 (HO Yum-ying). He has 21 years' government service and he will be retiring from Government on March 23rd, 1976. In 1975, he became financially embarrassed as the result of the death of his mother and borrowed $1,000 at 7% interest which was repaid within the period of the loan.

19. Criminal Appeal No. 234 (LAU Ming-fat). This appellant has 16 years' government service and in January 1975 obtained a loan for $1,000 by reason of expenses in connection with the Chinese New Year. He has a good record of public service.

20. Criminal Appeal No. 235 (CHAN Hon-keung). This appellant has twelve years' government service. He obtained several loans of $1,000 for one or two months. On one occasion he was in financial difficulties owing to being backward in paying his taxes and on another occasion, he required a loan as he was getting married. He is described as industries and is still studying although he is 31 years old.

21. Criminal Appeal No. 236 (MOK Yuen-kwong). This appellant has eight years' government service and obtained two loans, one in April 1974 for $2,000 and one in September 1974 also for $2,000. These loans were repaid with interest at 8% per month. The loans were necessary because the appellant's wife was pregnant and had a difficult birth and, as a result, had incurred a lot of medical expenses for some months after the child was born.

22. Criminal Appeal No. 237(PANG Chik-chan). This appellant has 22 years' government service. In June 1973 he obtained a loan of $2,000 which was repaid at 8% per month interest within two months. This was required for car repairs. This appellant is the most senior member of the department among the appellants now before the court. He is an Assistant Housing Manager and there was evidence before the magistrate on review that he has a good record of service and also was, for five years, a special constable.

23. Criminal Appear No. 238 (CHAN Man-por). This appellant has five years service with the Government. He received a loan of $2,000 in March 1973 and he is destined to take a three year course at the Hong Kong University in 1977. The loan was repaid with interest by January 1974.

24. These are briefly the details of the loans and the service record of the various appellants. In the appellants' favour it was urged that none of the appellants had any connection with WONG Kam-ming, the person from whom all the loans were borrowed so far as their duties in the department were concerned. And this has been accepted by the prosecution. On behalf of each appellant also it was stated that it was not fully realized at the time the loans were obtained how serious an offence under section 3 of the Prevention of Bribery Ordinance was. The sole matter of which the appellants complain is what they describe as the near certainty of the consequences of recording a conviction, namely, that they may lose their job or their pension, or both their job and their pension.

25. Counsel did not say that the loss of job and/or pension was inevitable. It is for comment that the conviction rather than the recording of the conviction which is really material. However, counsel suggested that it would be better to leave it to the proper authorities which decides such matters. And to record a conviction might affect any decision which may have to be made. The suggestion is, of course, that the magistrate wrongly exercised his discretion under section 36 of the Magistrates Ordinance when he decided that a conviction should be recorded.

26. Several, if not all, the appellants applied to the magistrate for a review. At one such hearing, an officer of the ICAC, who was appearing for the Crown, told the magistrate that the prosecution considered that these were technical offences and that they were only brought so as to give the section publicity throughout the Civil Service and in order to stop the practice of what was described as "loan sharking".

27. Counsel for the appellants suggested that this showed that the Attorney General's consent to the prosecutions, which is a necessary ingredient for prosecutions under this section, was given for wrong reasons. There is no indication on the record that the Attorney General's consent to prosecute was based on these grounds. The remark of the particular prosecutor was his own. I do not think it proper to saddle the Attorney General with every statement made by a prosecutor in a Magistrate's Court or, for that matter, in any court. The consent of the Attorney General was given long before the remarks in question were made and although publicity is most desirable and has, in this case, been achieved, nobody, much less an Attorney General, could consider offences of this nature to be merely 'technical'.

28. Taking into account the fact that none of the appellants was connected, so far as his duties were concerned, with the moneylender, Wong Kam-ming; the particulars of the loans themselves; the difficulties of obtaining loans from finance companies quickly which may be encountered by persons in the income group of the appellants; I think that these are proper cases for me to allow the appeals in each case to the extent that the convictions in each case are not recorded.

29. As I have said, Criminal Appeal No. 219 (HO Wai-kwok), stands in a different position from the other appeals. I do not think it would be proper to deal with that case differently from the way in which I have dealt with the other appeals. It is true that in that case there were many loans involved, and that this was a much more serious case than any of the others. However, I feel that the same order should be made so that in that case the sentence of the fine will be set aside and no conviction recorded as in the other cases. The fine, if paid, must be returned.

Representation: