The Queen v. Leung Kin Chak and Another

IN THE COURT OF APPEAL

1986, No. 612
(Criminal)

BETWEEN

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Coram: Hon. Kempster, Hon. Clough, JJA. & Hon. Penlington, J.

Date of hearing : 19th May 1987

Date of delivery of judgment : 19th May 1987

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JUDGMENT

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Penlington, J.

1. The applicants were convicted by Souyave, D.J. in Kowloon District Court of conspiracy to accept advantages, contrary to. Common Law and Section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201.

2. These are applications for leave to appeal against sentence only, applications for leave to appeal against conviction having been abandoned.

3. The 1st applicant is a Sergeant of the Royal Hong Kong Police Force. He is thirty-two years of age and has been a police officer for some 13 years. At the time of the offence he was second-in-command of the Special Duties Squad, Yaumatei, whose primary duty is the detection of drug offences. The 2nd applicant is no longer a police officer but was a constable for a period of some 10 years up to 1975.

4. The facts as found by the trial judge were that between the 5th November 1985 and the 21st December 1985, there was a conspiracy between the two applicants and four self-confessed drug traffickers whereby, in exchange initially for $1,000 per day but then increased to $1,400 per day, these drug traffickers would be given protection in their activities by receiving advanced warning of police raids. The evidence is that some $20,000 to $24,000 was paid to the 1st applicant, via the 2nd applicant, during that period. While there is no direct evidence as to how much the 2nd applicant received for himself quite clearly he played a very active role and no doubt was receiving a substantial part.

5. We regard the offence by the 1st applicant under this provision as being as serious as one can imagine, that is a conspiracy to protect drug trafficking by a Senior NCO in the Royal Hong Kong Police Force. There is little that can be said in his favour. He did not plead to the charge and the amount involved, although over a very short period, was substantial, some $24,000 being paid.

6. The appalling harm that drug trafficking does to the community is so wellknown, it needs no repeating here. There is little hope of stopping this traffic if police officers cannot be relied on, senior police officers in particular.

7. We had been referred to other cases but while they are of some guidance, each case must be considered on its own facts and we do not consider that there are any authorities which indicate that the sentence passed in respect of the 1st applicant is wrong in principle or is manifestly excessive. It has been put to us that, because he is a police officer; the 1st applicant is likely to find a prison sentence more difficult than another member of the public as persons he has dealt with are also in prison because of him. If that is so, and we have no evidence of that other than while he has been at Lai Chi Kok Remand Centre he has been to some extent in solitary confinement, it is a fact which must be wellknown to police officers.

8. The maximum sentence for this offence is one of 7 years' imprisonment. A reduction has been made for the fact that he has no previous convictions, although that is inevitable in this sort of case, that he has a young family and other personal circumstances. We do not, however, consider that the sentence is wrong in principle or excessive and the application of the 1st applicant is dismissed.

9. As far as the 2nd applicant is concerned, while quite clearly he took a very active role in this conspiracy, he was not then a police officer. He has been described by counsel as a conduit pipe for the payment of bribes. While he was nevertheless an important member of this conspiracy we feel that the sentence of four years imposed on him, when compared with the role of the 1st applicant, is too high. His application for leave will be granted. We treat this hearing as the appeal and the sentence passed on him will be reduced from four to three years.

Mr A.A. Bruce for Respondent

Mr Michael Poll (Anthony Kwan & Co.) for 1st Applicant

Mr Ian Polson (William Au & Co.) for 2nd Applicant