HKSAR v. Ng Tai Yung

CACC000509/1998

CACC 509/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 509 OF 1998

(ON APPEAL FROM DCCC 648/1998)

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Coram: Hon. Mayo, Leong and Stuart-Moore, JJ.A. in Court

Date of hearing: 5 May 1999

Date of delivery of judgment: 5 May 1999

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The applicant who was a branch manager of Hang Seng Bank Limited ("the Bank") was charged with one count of soliciting an advantage as an agent, contrary to s.9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201, five counts of accepting an advantage in accordance with the section and one count of conspiracy to defraud, contrary to the Common Law.

2. After a trial in the District Court before H.H. Judge Esther Toh he was convicted on the 1st count and on three of the five accepting an advantage counts and on the conspiracy count. He was sentenced to a total of 31/2 years imprisonment. He seeks leave to appeal against his convictions and the sentences which were imposed.

3. As manager of the Chung On Street branch of the Bank the applicant had authority to extend unauthorised overdrafts to customers in accordance with fairly strict rules. The main allegation made against the applicant is that in September 1994 he put to two of his customers who were PW1 and PW2 a proposition along the lines that if they were prepared to pay him 3% on all orders received in the course of their business he would arrange for unauthorised overdrafts facilities to be made available for their businesses.

4. PW1 and PW2 had associated businesses. PW2's firm took orders for handbags which were manufactured in the mainland by PW1's business.

5. An agreement along these lines was concluded. Charges 2 to 6 related to the payments which were effected in accordance with the agreement. It is noteworthy to add that the Judge found that in charge 2 which refers to a reward in the sum of $10,000 to $20,000 the Judge found that only $3,000 to $4,000 had in fact been paid. She was also not satisfied that the payment received in respect of charges 5 and 6 had been made, hence, her finding of no case to answer on charge 6 and the acquittal of the applicant on charge 5. Otherwise she was satisfied at the appropriate level that the payments referred to in the other charges had been made.

6. Mr. McWalters for the prosecution has very helpfully drawn our attention to the fact that some of the payments referred to in charges 3 and 4 were made in the Mainland and accordingly were extra territorial. We accept that this is the case. The Judge aggregated the payments made in November and December including these amounts. They should not have been included. The consequence of this is that the amounts referred to in these charges must be reduced in the case of the 3rd charge from $10,000 to $20,000 to approximately $10,000 and on the 4th charge from $10,000 to $20,000 to approximately $3,000. We have taken cognisance of this.

7. The two main witnesses concerning these charges were PW1 and PW2.

8. The Judge was fully mindful of the dangers of accepting their testimony having regard to the fact that they had both received immunities from prosecution. Notwithstanding this she was prepared to accept their evidence as being truthful and reliable.

9. Particulars of the conspiracy count which was the 7th charge were framed in this way:

"NG Tai-yung, between September 1994 and April 1995, in Hong Kong, conspired with LAU Chi-tak, AU Chi-ho, MAK Tung-wai, YU Kim-wan and YU Kim-hung, Steve, to defraud Hang Seng Bank Limited ("HSB") by dishonestly and falsely representing:

(a) that the respective personal accounts of the said persons, and that their respective company accounts, namely, Kai Tak Leather Company of the said LAU Chi-tak, Kwong Sun Handbag Company of AU Chi-ho, Empire Leather Handbag Factory of YU Kim-wan, and Aziza Collection and Lexbo Limited of MAK Tung-wai and YU Kim-hung, Steve were in order and in compliance with the internal regulations and/or guidelines of HSB.

(b) that the unauthorised overdraft facility granted to the said personal and company accounts was proper and in order."

10. PW6 who was a senior audit officer of the Bank during the course of his duties noticed a pattern of entries which aroused his suspicious at the end of 1994 or the beginning of 1995. He caused further investigations to be undertaken and he then formed an opinion that there had been breaches of the Bank's internal rules and regulations.

11. PW6 gave detailed evidence concerning his findings and the views he had formed on them. This evidence was consistent with the evidence of PW3, 4 and 5 and in conformity with the matters referred to in the conspiracy count. Again, the Judge was satisfied at the appropriate level that this charge had been proved.

12. Grounds one, two and three of the amended perfected grounds of appeal can conveniently be dealt with together. They read:

"(1) The Judge misdirected herself with regard to the statements made by PW1 and PW2 by suggesting that in order for her to be able to reach the conclusion that the Appellant solicit (sic) 3% of the amount of business turnover per month as an inducement to approve unauthorised overdraft facility, it was not sufficient for the Prosecution to exclude the possibility that the Appellant approved the overdraft facility based solely on Bank internal regulations and normal practice, and in particular to exclude the possibility that PW1 and PW2 made the (false) and untruth statements. The statements can only be used against the makers. Since there was no direct evidence that the Appellant had solicited for an advantage. The mere elimination of other possibility could not amount to proof of the guilt of the Appellant.

(2) Although PW1 stated that he gave the sum of about $29,000 to $35,000 to the Appellant which formed the subject (matter) of the charges. (Refer Reasons for Verdict p.5) there was not sufficient evidence from which the Judge could safely infer that the Appellant had really received or accepted the advantage.

(3) Although there was evidence which indicated that there were several transfers between PW1 to PW5, there was not sufficient evidence from which the Judge could safely infer that it was the Appellant's idea that PW1 to PW5 wrote cheques out for transfer in order to cover up the illicit fact. The Judge had excluded to consider the close business and friend or relatives relationship between PW1 to PW5. (Reasons for Verdict p.6 K, L)"

13. Before us, the applicant produced a further 7 pages which were entitled "Grounds of Appeal" which we have considered as additional grounds.

14. It has to be said that all of the matters raised in these additional grounds like the material contained in the original grounds relate to matters which either were raised before the Judge or should have been.

15. All of these grounds appear to be misconceived. It is not the function of the Court of Appeal to rehear a case. The main purpose is to ensure that a defendant has received a fair trial.

16. We have indicated in this judgment how the Judge reached the conclusions she did. She did so principally by accepting the evidence of the witnesses who gave evidence before her and drawing inferences from it.

17. If the evidence was believed as it clearly was there was abundant evidence to support these charges.

18. None of these grounds can be sustained. The application for leave to appeal against conviction is dismissed save that the amounts of the subject matter of charges 3 and 4 are varied as earlier indicated.

Sentence

19. When passing sentence the Judge quite rightly took a serious view of these offences and had this to say at p. 33:

"On charge 1, in all the circumstances of this case, it was certainly a blatant solicitation by the defendant. I consider that 2 years' imprisonment is reasonable in order to express the disgust of society at the betrayal of a trusted bank employee and also to act as a deterrent.

On charge 2, as the reward was only $3,000 to $4,000, I consider a sentence of 6 months' imprisonment to be appropriate.

On charges 3 and 4, there is not much difference in the amounts between them. I consider a sentence of 9 months' imprisonment on each charge to be reasonable in the circumstances.

As for charge 7, there was no actual loss to the bank as all UODs were paid up. I consider a sentence of 18 months' imprisonment to be appropriate in that case.

I consider that the overall sentence for all these offences should be 4 years' imprisonment to reflect the overall criminality of the defendant. I also have to consider the totality principle and some consideration, I feel, should be given to the defendant's clear record. The sentence therefore to be served by the defendant will be:

(1) for charge 1, 2 years' imprisonment;

(2) for charge 2, 6 months' imprisonment, 3 months of which will be consecutive to charge 1 and 3 months concurrent;

(3) for charge 3, 9 months' imprisonment, 4 months consecutive to charges 1 and 2 and 5 months concurrent;

(4) for charge 4, 9 months' imprisonment, with 4 months consecutive to charges 1, 2 and 3 and 5 months concurrent;

(5) for charge 7, 18 months' imprisonment, 7 months of which will be consecutive to charges 1, 2, 3 and 4, and 11 months concurrent.

The total sentence for all charges will be 3 1/2 years' imprisonment.

The defendant is also ordered to make restitution of $40,000 to the bank under section 12 of the Prevention of Bribery Ordinance. This amount is to be deducted from the defendant's bail money."

20. It is undoubtedly true that the applicant breached the considerable trust reposed in him. It is also true that the court must take a serious view of offences of this nature.

21. If the sentences imposed on charges 2, 3 and 4 are looked at in isolation the starting points adopted were too low. A sentence of the order of 18 months' imprisonment would have been appropriate. No doubt to an extent the Judge had in mind the totality.

22. It is however necessary to adopt the correct approach to each of the sentences because if any of the convictions are quashed on appeal the sentences on the remaining charges may then be distorted and the end result may be that an inappropriate sentence remains.

23. We consider that a similar approach should be adopted to the approach adopted in the AG v. Bow Ki-lun and another Application for Review No. 4 of 1995. In this application it was held that where a defendant was convicted of both soliciting and accepting bribes the sentences for these offences should be served concurrently. Adopting this approach we do not interfere with the sentence of 2 years imprisonment imposed on the 1st charge. However, we order that sentences of 18 months' imprisonment be imposed on charges 2, 3 and 4 and that each of the sentences is to be served concurrently with the sentence imposed on the 1st charge.

24. We do not interfere with the sentence imposed on the 7th charge of 18 months imprisonment, 7 months of which were ordered to be served consecutively to the sentences imposed on charge 1. Thus the total sentence to be served by the applicant is reduced from 31/2 years to 2 years and 7 months.

25. We also order that the restitution order made by the Judge be amended and that the amount be reduced from $40,000 to $16,000. To this extent this appeal is successful.

Representation:

Mr. I. C. McWalters, S.A.D.P.P. (D.P.P.) for Respondent

Ng Tai-yung, Applicant in person