A1. Wong Wing-nin and Another v. The Queen

CACC000617/1981

Appeal against sentence for corruptly receiving monetary gifts - Appellants, officers of bus company, convicted of giving preferential treatment to bus drivers in return for such gifts received for syndicates of bus drivers - Appellants not persons who initiated or solicited for gifts - No evidence of discrimination against other drivers who did not pay money - Bringing penalty in line with other corruption cases, some of which more serious, appeal allowed. Sentences reduced, A1 from 4 1/2 years to 18 months and A2 from 4 years to 12 months.

Coram: Li, Silke, JJ.A. & Bewley, J.

Date of Judgment: 28th October, 1981

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JUDGMENT

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Li, J.A.:

1. This is an appeal against sentence pursuant to leave granted by a single judge. The two appellants pleaded guilty to a charge of conspiracy. The charge alleges that they, on divers dates between the 1st of January 1977 and the 30th of August 1980, conspired with others to offer, solicit or accept sums of money as an inducement or on account of or reward for Duties Allocation Office of the China Motor Bus in performing acts in their capacity as public servants.

2. The first appellant was the Traffic Operation Manager and the second appellant, his deputy. They were the two persons directly responsible to the Duties Allocation Office of the bus company. It was part of their duty to allocate duties for various drivers.

3. The China Motor Bus' duties roster changes on monthly basis on the 16th of each month. The Duties Allocation Office has a power to direct drivers to take on certain routes, shifts or even to drive a particular bus. These two appellants were directly responsible in the exercise of such power.

4. They admit that they accepted monetary advantages from the drivers so as to, from time to time, grant them more convenient routes, shifts or to permit them to drive newer buses. It all started with a system where bus drivers formed themselves into syndicates in the early sixties, originally for the purposes of having a meal during Chinese festivals and the Chinese New Year. As the system grew, the syndicates saw fit to invite the first appellant and his predecessors to join them for dinner. Ever since the second appellant became the deputy of the first appellant in 1978, the second appellant was also invited. At first, some minor gifts were presented to them. Subsequently the character of such gifts changed into the form of money. On occasions the syndicates or each of them would pay them sums which vary between $200 to $400. For Chinese New Year, they might even give them a thousand dollar each. There is no evidence as to how many syndicates there were or whether only total sum of $400 was paid by all the syndicates together or sums of $400 were paid by each syndicate. For this offence, the first appellant was awarded a sentence of 4½ years imprisonment and the second appellant 4 years.

5. In his reasons for sentence the learned trial judge said at page 30:

"By virtue of their posts and also perhaps as a result of inadequate supervision, or the lack of it, from their employer, 1st defendant and 2nd defendant found themselves in a position where, in the performance of their duties, they could grant certain advantages or favours to bus drivers in return for various sums of money. In this connection I have no doubt that 1st defendant and 2nd defendant, like most people who had lived in Hong Kong for the past few years, knew of the existence of the Independent Commission Against Corruption and its main aims, viz., to prosecute the corrupt and try to eradicate corruption from our society."

Later he said:

6. Learned counsel for the appellants argues very strongly that the appellants were not strictly speaking public servants. They were deemed to be public servants by virtue of the Prevention of Bribery Ordinance. Secondly, that the initial purpose of the syndicates was merely for dinner and for good relationship between superior and subordinate employees of the company. It was difficult to resist the pressure of goodwill and relation - particularly having regard to the circumstances and the line of employment they were in.

7. Mr. Eddis, for the first appellant, stresses that the learned trial judge has not given sufficient consideration to good character and the valuable contribution the first appellant made in the year 1967. He risked his life and personal injury to persuade striking members of the CMB to resume work. He assisted in the recruitment of new drivers to replace those who were adamants in their strike action.

8. Mr. Huggins, for the second appellant, raises no less than 4 points. He adopts part of the arguments of Mr. Eddis. The first gravamen of complaint is that the learned trial judge failed to consider that in fact the two appellants were not initiators of this bribery - albeit they were at the receiving end. It was the drivers who initiated these syndicates and initiated payment. Without trying to diminish their part in receiving the bribes, it cannot be said that they really demanded such payment or that they had discriminated against any bus driver who failed to pay.

9. The second point is that as to the other conspirators, namely, the bus drivers, the initiators of the syndicate, they were given a conditional discharge in respect of the same charge. There is a huge difference in sentence.

10. Both counsel direct our attention to the fact that this is about the highest sentence awarded in corruption cases. We are referred to the cases of Godber who was convicted in the mid seventies for receiving a bribe. He was awarded a sentence of 4 years. Boxall who received huge kick-backs and sums of money, was also given 4 year. In a case, which occurred only last year, Kennard was awarded a sentence of 3 years. In the case of CHAN Sik-kwong⁽¹⁾ , a similar conviction, a 3 years sentence was reduced to 18 months. In the case of Stephen Li⁽²⁾ , a TVB Sales Manager, sentences of 3 years and 2½  years were reduced to 15 months and 12 months. Lastly, the case of LI Shui-luen⁽³⁾ , who received persistently sums of kick-backs and commissions in his capacity as a medical doctor in the employ of the Kowloon Motor Bus Company, he was given a custodial sentence of not more than 9 months. In the circumstances, there appeared to be a substantial difference in the sentence.

11. We feel that, in the present case, having regard to the difference in sentences and having regard to the special circumstances of the case, the sentence of 4½  years on the first appellant and a sentence of 4 years on the second appellant are both manifestly excessive. For these reasons, we feel that a much shorter sentence would be appropriate. The appellants have learned their lesson. Such sentence would act as a deterrent to other potential offenders. Accordingly, we allow the appeal and reduce the sentence of the first appellant to one of 18 months imprisonment and that of the second appellant to a sentence of 12 months.

Perhaps we should add that in view of the authority in the case of LEE Kong-chung v. The Queen⁽⁴⁾ , in which the learned Chief Justice delivering the judgment of the Court said:

"In general, however, where a driving examiner, who is a public servant, is convicted of soliciting or accepting bribes in relation to the passing of driving tests, an immediate custodial sentence should normally be imposed; only where there are unusual extenuating circumstances should the sentence be suspended."

We feel that a custodial sentence is appropriate and for that reason the appeal is allowed to the extent of the variation.

Representation:

Mr. Eddis (H.H. Lau & Co.) for the first appellant

Mr. Huggins (Hampton, Winter & Glynn) for the second appellant

Mr. MdCelland, Crown Counsel, for respondent

(1) Criminal Appeal 888/76

(2) Criminal Appeal 223/76

(3) 1975 H.K.L.R. 75

(4) Criminal Appeal 393 of 1980