HKSAR v. Chan Kau Tai

CACC 477/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 477 OF 2006

(ON APPEAL FROM HCCC NO. 319 of 2005)

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BETWEEN

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Before : Hon Ma CJHC and Stuart-Moore VP

Date of Hearing : 27 February 2008

Date of Judgment : 28 February 2008

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1.This is an application for leave to appeal against sentence.

2.On 14 November 2006, after a jury had convicted the applicant on the previous day on nine counts of corruption (counts 2 to 8, 10 and 11), Lunn J imposed an overall sentence of 6 years’ imprisonment.  Counts 2 to 5, 8 and 11 were offences of being a public servant accepting an advantage, contrary to sections 4(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 (“the Ordinance”) whereas the  6^th, 7^th and 10^th counts were all the acceptance of an advantage by a public servant, contrary to sections 4(2)(c) and 12(1) of the Ordinance.  The applicant was acquitted on the 1^st and 9^th counts of the indictment.  However, the 9^th count was an alternative to count 10 which involved the same degree of criminality.

3.This application is only concerned with the totality of the sentence imposed on the applicant.  No complaint is made about any of the individual sentences which the judge imposed.

4.The judge sentenced the applicant to 3 years’ imprisonment on each of counts 2 to 6 and 10 and, on counts 7, 8 and 11 where the bribes were smaller sums, to 2 years’ imprisonment on each count.  The judge achieved an overall sentence of 6 years by ordering that 1 year of the sentence on count 3 should be consecutive to the sentence on count 2, 1 year of the sentence for count 5 should be consecutive to count 3 and that 1 year of the sentence for count 10 should run consecutively to the sentence for count 5.

5.The applicant’s sentence was the outcome of a retrial.  The essence of this application, with which we shall deal in greater detail when we turn to the grounds of appeal, is that the totality of the applicant’s sentence for the offences of which he was convicted is of greater length than the sentence he received on those counts from Pang J before whom his original trial took place.

6.At the original trial, the applicant was convicted on 12 December 2003 on 10 counts of corruption and was sentenced on 5 January 2004 by Pang J to a total of 7 years’ imprisonment.  At that trial, the applicant was convicted on count 1 (‘the 1^st count offence’) on which, at his retrial, he was acquitted.  This related to the alleged acceptance by the applicant of an advantage of $1.5 million.  Pang J imposed 4 years’ imprisonment on that count and made all the remaining sentences (the same as those imposed by Lunn J) concurrent with each other but consecutive to the 1^st count offence.

Summary of evidence and counts on the indictment

7.The applicant was, at all material times, the chief building services engineer in the Housing Department earning a monthly salary of $150,000.  In the period of approximately 8 months between 28 November 2000 and 2 August 2001, the applicant accepted a total of $1.5 million in advantages of which $1.1 million was paid to him in cash.  When sentencing, the judge described the applicant’s conduct as a gross breach of the trust reposed in him.  He went on to say that instead of directing his efforts to the benefit of the Housing Department and the public he was there to serve, he had used the opportunity to create openings from which he could derive financial benefit, normally either by pushing or by steering contractors to use equipment supplied by suppliers who were prepared to pay bribes to the applicant for this assistance.

8.In short, the applicant was a senior civil servant who abused his position to solicit and accept bribes from private sector contractors.  He did so in circumstances where the Housing Department had been involved in the construction of public housing estates and the contractors from whom he accepted bribes were involved in the construction of these public estates.

9.The particulars of charges 2 to 5, 8 and 11 were in similar terms.  It suffices, for the purposes of illustration, to set out the particulars of the 2^nd count which were as follows:

“

Chan Kau-tai, being a public servant, namely, a Chief Building Services Engineer of the Housing Department of the Government of the Hong Kong Special Administrative Region, on or about the 28th day of November 2000, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely, a gift, loan, fee, reward or commission consisting of $200,000.00 Hong Kong currency from Wong Chi-leung [also known as Sam Wong] as an inducement to or reward for or otherwise on account of his performing or having performed an act or acts in his capacity as a public servant, namely, rendering or having rendered assistance to Brongham Park Limited and/or Shun Cheong M & E Limited in relation to matters concerning installation and/or specifications of standby diesel generating sets in the building project sites of the Hong Kong Housing Authority, and/or remaining favourably disposed to the said Brongham Park Limited and/or Shun Cheong M & E Limited.”

10.The evidence on this count showed that the offeror of the advantage, namely $200,000, was George Kwok through Wong Chi-leung (known also as Sam Wong).

11.Adopting the helpful summary prepared by Mr McWalters SC on the respondent’s behalf of the remaining section 4(2)(a) offences, the 3^rd count related to 7 March 2001.  The advantage which the applicant accepted was $200,000, the offeror was Guo Weilun (also known as Michael Kwok or Michael Guo (Michael Guo)) and the assistance rendered was to Michael Guo and/or Wai Tat Electrical Machinery Limited (Wai Tat) and/or Tak Rich Trading Company Limited (Tak Rich) in relation to the installation of fire service and water pumps in the building project sites of the Hong Kong Housing Authority.

12.The offences in counts 4 and 5 were committed on 4 April 2001 and 4 May 2001 and the advantages accepted by the applicant were $150,000 and $170,000, respectively.  The offeror in both counts was Sin Yau-wing, Raymond (Raymond Sin) and the assistance rendered was to Raymond Sin and/or Seaview Engineering Limited (Seaview) in relation to matters concerning the installation and/or operation of standby diesel generating sets in the building project sites of the Hong Kong Housing Authority.

13.The dates in counts 8 and 11 were 18 June 2001 and 2 August 2001 on which days advantages of $30,000 and $60,000, respectively, were accepted by the applicant.  The respective offerors in these instances were Lai Yun-sang and Lai Sai-sang and the assistance rendered was to Lai Yun-sang and/or Hing Yip Electrical Engineering and Supplier Limited (Hing Yip) in relation to matters concerning the performance of Hing Yip in the electrical installation project at the Hong Kong Housing Authority Site at Lai Chi Kok, Phase 2.

14.The counts under section 4(2)(c) of the Ordinance were in slightly different terms.  The particulars of count 6 related to the period between 1 June 2001 and 31 July 2001, the offeror was Sam Wong (the same as in count 2) and the advantage was $400,000 “as an inducement to or reward for or otherwise on account of his assisting, favouring or having assisted or favoured [Sam Wong] and/or Brongham Park Limited in the transaction of business with the Hong Kong Housing Authority and/or the … Housing Department”.

15.The same corrupt purpose was particularised in count 7.  The advantage of $90,000 was accepted on 5 June 2001.  On this occasion, the offeror was again Sam Wong.

16.The particulars of the offence in count 10 differed from the others in that, as the judge expressed it, this represented “an extension of [the applicant’s] corrupt activities into a new sphere”.  In this instance, on or about 27 July 2001, the applicant assisted William Kwok, the son of another civil servant who was inadequately qualified, to obtain employment as a government engineer after William Kwok had failed to be accepted under the proper procedures.  The applicant accepted an advantage on this occasion of $200,000.

17.All in all, there were seven offerors of bribes and the cash the applicant had received by the time of his arrest was $1,100,000.  He had agreed to accept $400,000, the subject of count 6, but in fact accepted the $90,000 bribe in count 7.

18.We do not, because of the nature of the grounds of appeal, need to go into any of the evidence on the individual counts in greater detail.  Suffice it to say, there was overwhelming evidence of the applicant’s guilt which included, amongst other things, the admissions he made to officers attached to the ICAC, surveillance evidence, banking records, the testimony of a variety of witnesses who gave evidence under immunity and, perhaps most illustrative of all as it showed the manner in which the applicant was regularly conducting corrupt activities while at work, the transcripts of telephone calls and the videotaped recordings made on a hidden camera installed inside the applicant’s office.

Sentencing

19.The judge outlined the significant features of the evidence in a lengthy and careful summing up to the jury and he repeated some of the salient points in his sentencing remarks.

20.In particular, the judge took into account the value of the bribes accepted by the applicant and the active role he had played in soliciting these as well as ensuring that the corrupt expectations of the offerors were met.  An example of this (in regard to counts 8 and 11) was described by the judge in the following terms:

“	Lai Sai-sang testified that in early July 2001, having received a telephone call from you, he met you. And whilst the two of you were travelling – ‘doing the rounds’, as it was described in evidence - in Ho Man Tin, you displayed what he described as a ‘strong attitude, complaining of the inadequate payment he had received from Lai Yun-sang, saying, “Is he crazy? His licence is worth much more than $30,000.”’
	As a result, Lai Yun-sang withdrew a further 60,000 from his bank account, which was given to you on 2 August 2001 by his younger brother, when the two of you met for lunch.
	In the conversation that you had with Sam Wong on 23 July 2001, to which I have alluded and which was captured in video surveillance of your office, you in effect boasted to him of that conversation with Lai Sai-sang in which you had threatened and cajoled him into making a greater payment. And you used language strikingly similar to that used by Lai Sai-sang to describe what you had said.
	Clearly, you were preying on the fears of Hing Yip losing their licence, together with offering promises that you would, as indeed you did, do what you could to protect the brothers Lai in consequence.” (Appeal bundle pp. 1095-1096)

21.Earlier, the judge had described how the applicant had held a series of meetings with a senior building services engineer who was the applicant’s subordinate as a result of which, and at the applicant’s instigation, a report about Hing Yip was withdrawn.  In its place, a revised and favourable report was created about Hing Yip’s performance which was signed by the applicant amongst others.

22.The judge also summarised evidence about how, following payments of bribes during lunchtimes, the applicant would be seen in his office counting wads of bank notes.  The judge referred to the applicant’s tenacity in pursuing payments by reference to the videotape transcript, which had also recorded the money-counting incidents, when he referred to a telephone conversation on 3 May 2001 with Raymond Sin (in regard to counts 4 and 5).  The judge, starting with an extract of the telephone call where the applicant was speaking, said as follows:

“	‘I want to ask you. Why is it often the case that your promises can’t be honoured? Yep, I said the end of the month. It was also like this last time. You always, you always postpone like this. Last time you also were like this. Always like this. It seems to be quite meaningless.’
	And you ended, ‘You think about it.’ That proved effective, because an hour later he called back, and then an arrangement was made between the two of you to meet the following day, at which meeting the payment of a $170,000 was made.” (Appeal bundle p. 1097)

23.The judge also considered various matters which had been raised in mitigation, including the applicant’s previous good character, the delay between his arrest and the conclusion of the case following the applicant’s retrial, the absence of any evidence that safety had in fact been compromised, the likely loss of the applicant’s rights to a government pension and his poor health.

24.The judge had also had the opportunity to consider the extremely brief sentencing remarks of Pang J and it is apparent that, on the individual counts, the judge imposed exactly the same individual sentences as Pang J had done.  The judge then took an overall view of the applicant’s criminality, having regard to totality, which he assessed as deserving a 6-year sentence.

Grounds of appeal

(1) and (2)  A greater sentence on retrial than originally imposed

25.In his 1^st and 2^nd grounds of appeal, Mr Macrae SC for the applicant submitted that the judge erred in principle by failing to make, as Pang J had done, the 3-year sentences on counts 2 to 6 and 10 concurrent with the 2-year sentences on counts 7, 8 and 11.  In an alternative submission, in which more or less the same point was made, Mr Macrae contended that the judge should have had regard to the sentences imposed on these counts at the original trial so as not to have exceeded them in their overall totality.

26.Mr Macrae’s principal submission was that it was wrong for a person who had been retried to receive a sentence of greater severity than that passed on the original conviction and he drew comfort for this proposition from the English statutory provision in Schedule 2 of the Criminal Appeal Act 1968 which is to that effect.

27.Mr Macrae then sketched out the development of the law on this topic.  He made reference to the decision of this court in Ho Cheuk-fan v R, CACC 635/1975 where it was stated that it was wrong for an appellant to serve a longer sentence after retrial than had been originally imposed.  Mr Macrae pointed out that this decision was later disavowed in Choi Nai-yin [1982] HKLR 207 when Roberts CJ, delivering the judgment of this court, stated (at page 209) that no authority had been cited in Ho Cheuk-fan’s case for the conclusion it had reached.  Roberts CJ then referred to the 6^th Schedule to the Criminal Procedure Ordinance, Cap. 221, which provides that “where a person ordered to be retried is again convicted on retrial, the court before which he is convicted may pass in respect of the offence any sentence authorized by law”.  The Chief Justice also noted that in all other respects the Criminal Procedure Ordinance appeared to follow exactly the terms of Schedule 2 of the Criminal Appeal Act 1968 except that it omitted the words “not being a sentence of greater severity than that passed on the original conviction” which appear in the English statutory provision.  The comment was made in this judgment that the court assumed the omission to be deliberate and that it showed that the legislature “did not wish to limit the courts in Hong Kong with regard to sentence as they are in England”.

28.This decision was followed in R v Chan Chung-chiu (No. 2) [1987] 3 HKC 144 at 147 when this court noted the effect of the decision in Choi Nai-yin’s case as being that “this court would not interfere [with a longer sentence imposed after retrial] unless it thought that the second sentence was manifestly excessive”.

29.The Privy Council, which has binding effect on this court in decisions reached before 1 July 1997 in appeals from Hong Kong, also considered this issue in R v Chan Ho-kuen and Anor [1990] 2 HKLR 345 and stated that “the judge on the retrial is in no way fettered by the sentence imposed at the first trial” as the statutory provisions in England and Hong Kong were different.  This conclusion took in a citation to the same effect from the Supreme Court of South Australia’s decision in R v Garrett [1978] 18 SASR 308.

30.However, Mr Macrae then drew our attention to a further decision in the year following Garrett when the majority in the Court of Criminal Appeal of New South Wales in R v Gilmore [1979] 1 A Crim 416 declined to follow Garrett having concluded that the court in Garrett had not been referred to the English statutory provision.  The court concluded that it would be wrong that someone who had suffered a defective trial should feel constrained to avoid exposing that defect lest, on a new trial, a heavier sentence was passed.  It also found that an impression might be created of there being an element of retribution towards an appellant who had successfully overthrown the conviction at his original trial.

31.We observe from Mr Macrae’s analysis of other decisions in Australia following Gilmore that the principles to be applied there appear not to have altered since that time (see: R v Bedford [1986] 28 A Crim R 311; R v Petersen [1998] 100 A Crim R 344; R v Martin (No. 6) [2000] 109 A Crim R 508; R  H McL v R [2000] 203 CLR 452; R v Baltensperger [2006] 163 A Crim R 426).  The legislation in the States of Australia seemingly follows a similar path to the Hong Kong legislation and in R v Bedford, we note a recurring theme which is to be found in all the Australian cases since Gilmore.  The court (at pages 316-317) held that:

“

Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted.  He is both at liberty, and indeed obliged, to give effect to his own assessment.  It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view.”

32.In Gilmore’s case, which Mr Macrae used to suggest that the judge had acted in error in the present case, we observe (at page 419 in the judgment) that the South Australian Court was saying it was a sound principle of sentencing that a defendant should “not ordinarily” receive a longer sentence or non-parole period than he had received at the original trial.  The court then gave an example where the non-parole period might be lengthened having regard to the defendant’s conduct prior to re-trial and continued:

“	But, so far as concerns the head sentence, that passed on the first trial should ordinarily not be exceeded if the new trial results in conviction again.” (Emphasis added)

33.This observation is plainly an important consideration where the circumstances in which the retrial court finds itself sentencing a defendant on precisely the same charges.  This was not, however, the situation here, where a sentence of 7 years at the original trial was replaced by a term of 6 years’ imprisonment on an indictment which no longer included the 1^st count offence.  Totality had to be looked at afresh.

34.Mr Macrae submitted that no good reason had been given for the judge in the present case having departed from the orders made by Pang J in the original trial when all the sentences for the counts on which the applicant now stands convicted were made concurrent to each other.  If we were to accede to this submission, the effect of this would be that the applicant would be left with an overall sentence of 3 years’ imprisonment.

35.We are, however, unable to agree with Mr Macrae’s submission.  The situation was, as we have observed, not the same as it had been in the original trial where the judge achieved a totality of sentence of 7 years for offences including the 1^st count offence.

36.One of the questions to be answered in the present case is whether there could be any real justification for the imposition of wholly concurrent sentences on all the counts on which the applicant was convicted.  If they could be treated as what is often referred to as a “single transaction”, or a single course of conduct, concurrent sentences would have been appropriate.  Most of these offences, however, involved different offerors from different companies and the bribes were for different purposes.  There was, therefore, as Mr McWalters correctly argued in our opinion, no error of principle in ordering partially consecutive sentences in order to obtain an appropriate totality.

37.The second question for our consideration in this regard is whether a 6-year sentence for the criminality involved in the nine counts before us was in fact appropriate.  We are satisfied that it was.  There is no way of saying how Pang J would have approached the task of sentencing if the jury in the original trial had acquitted the applicant on the 1^st count offence and it would be entirely speculative to assume that Pang J would in those circumstances have sentenced the applicant to less than 6 years.  The judge in these proceedings had provided ample justification for the course he adopted and we consider that the criticisms of his approach were without foundation.

38.The dominant consideration in cases of this kind is the impact of the corruption, particularly on the public interest.  The value of the bribe or bribes received is, of course, also a matter of significance.  Here, the applicant was behaving in the classic mould of one who was prepared to do almost anything it was in his power to achieve provided the price he was paid for doing it was sufficient.  It is hard to imagine a more blatant case of public corruption and, in our view, the sentence the applicant received might well have been heavier than the one the judge imposed.

39.These grounds were without substance.

(3) The weight given to the mitigation

40.In the 3^rd ground of appeal, it was contended that insufficient weight was given by the judge to the fact that the applicant had been placed in jeopardy twice and had suffered inevitable delay between his arrest and the eventual disposal of his case in the court below.  It was also submitted that “the Department of Justice had not contended that the sentences at the first trial were inadequate nor had it sought to put the applicant on notice of such course”.

41.We shall say no more of the final matter raised in this ground as we have effectively dealt with it under the 1^st and 2^nd grounds of appeal.

42.Mr Macrae’s complaint in this ground was largely confined to the fact that although the judge had referred to the long delay before he was eventually sentenced, there was nothing to indicate how much discount, if any, had been accorded to the applicant, particularly when delay had not been a factor at the first trial.

43.We are satisfied from the careful approach taken by the judge to sentencing in all its aspects that the judge had well in mind all the matters of any relevance to sentence when deciding on an appropriate totality.  There was no basis here so far as we are able to ascertain for credit being given to the applicant on account of delay.  His decision to contest the ten counts on the indictment which, of course, he was perfectly entitled to do, meant that his case was put into the list for trial.  If acceptable pleas of guilty had been forthcoming, his case would have been listed far sooner.

(4) The applicant’s ill-health

44.We were invited to have regard also to the applicant’s present state of ill-health.  On this topic, the judge, who was aware that the applicant was not in good health, had stated:

“	I accept, as the Court of Appeal has said frequently, that the medical condition of a defendant who is appearing for sentence will seldom be the basis for the reduction in the sentence to be imposed upon him for serious offences. It is the duty of the executive to ensure that prisoners receive appropriate medical treatment and to exercise executive clemency where appropriate.
	In my judgment, it is not appropriate for this court to reduce the sentence imposed on you on the grounds of your ill health.” (Appeal bundle p. 1101)

45.Mr Macrae invited us to consider fresh evidence about what is said to be the deteriorating condition of the applicant’s health and we have seen, de bene esse, the report of Professor George K K Lau of the Department of Medicine at the University of Hong Kong which Mr Macrae sought to have admitted in evidence under section 83V of the Criminal Procedure Ordinance.  In this, Professor Lau referred to the applicant as having suffered from cirrhosis of the liver since 1997.  In a scan of the liver which was carried out on 4 December 2007, Professor Lau spoke of finding evidence “strongly suggestive of hepatcocellular carcinoma”. 

46.We have been informed that the applicant is presently being treated in the custodial ward at Queen Mary Hospital.  He is said to be fit for a liver transplant and we were informed that his son has volunteered to be a donor. Plainly, the applicant is in good hands and, whilst it is unfortunate that he is in such poor health, we are satisfied that the approach taken by the judge was correct.  As Li CJ stated in Yip Kai-foon v HKSAR [2003] 3 HKCFAR  31 at 35:

“	Under the guidelines and principles evolved by the courts, medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity.”

47.The crimes involved in this case were extremely serious and we note, in regard to the applicant’s state of health, that he first became ill before his corrupt activities began.  There is, we are satisfied, no basis for reducing sentence on the grounds of ill-health.  If the applicant’s health becomes worse and intervention on humanitarian grounds is considered necessary, this will be a matter for the Executive to consider.

48.Accordingly, we shall not admit the evidence of Professor Lau under the provisions of section 83V of the Criminal Procedure Ordinance as we are satisfied that his evidence can have no bearing on the outcome of this application.

Conclusion

49.The application is dismissed.

Mr I. C. McWalters SC, DDPP, of the Department of Justice, for the Respondent.

Mr Andrew Macrae, SC and Ms Maggie Wong, instructed by Messrs Simon C. W. Yung & Co., for the Applicant.