Secretary for Justice v. Li Cheuk Ming

                   CAAR 2/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Application For Review No 2 of 1998

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BETWEEN

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Before: Chan CJHC, Liu and Leong JJA

Date of Hearing: 15 October 1998

Date of Judgment: 15 October 1998

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Judgment

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Chan CJHC giving Reasons for Judgment of the Court of Appeal:

1. The respondent pleaded guilty at the Magistracy to one charge of offering an advantage to a public servant contrary to s.4(1)(c) of the Prevention of Bribery Ordinance (Cap. 201).  The Magistrate sentenced him to 100 hours of community service.  The Secretary for Justice considered the sentence manifestly inadequate and applied to this Court for a review of the sentence.

2. The respondent, who was an electrical company’s owner and a technician, was engaged by a construction company to carry out electrical installation at its new office and after the installation to make application to China Light & Power Co Ltd (CLP) for electrical supply.  During the inspection at the new office, the staff of CLP discovered that the breaking capacity of the main switch was sub-standard and he requested the respondent to have it replaced.  The respondent then offered the CLP staff $500 and asked the staff for approval of the installation and connection of electricity supply to the office.  The offer, however, was turned down.  The respondent had no alternative but to replace the installation.  Two days later, after the CLP staff had upon re-inspection approved the installation they connected electricity supply to the office.  Following that, the respondent was arrested and was charged with the offence of offering an advantage to a public servant.

3. The respondent, aged 33, is married with two children who are the age of 1 and 5 respectively.  He was of clear record, hardworking and is the sole breadwinner of the family.  If he is given a custodial sentence, he would suffer financial losses for failing to complete works on schedule and his family would at the same time be left destitute.

4. The Magistrate considered that the case was not the type of most serious bribery offence and having taken into account the respondent’s family and personal background, the Magistrate treated the case as an exceptional one.  He accepted the community service report and sentenced the respondent to 100 hours of community service.

5. A community service order is an alternative to custodial sentence.  It comprises the element of retribution as well as the function of rehabilitation.  Such type of sentence is punitive to the extent that it imposes restrictions on the accused and curtails his free time.  Besides, it is rehabilitative in that when performing the service, the accused can “have the opportunity for character building, restoring their personal dignity, and improving their standing in the community” and will be able “to establish constructive interests, develop worthwhile patterns of behaviour”.  Nevertheless, quite a number of judges consider that in cases of certain serious offences the community service order is inadequate as a punitive measure and is unduly lenient.  See A-G’s Reference No 49 of 1996 [1997] 2 Cr App R (S) 144 and A-G’s Reference No 44 of 1997 [1998] 2 Cr App R (S) 105.

6. The community service order was introduced to the magistracies in Hong Kong as a sentencing option in 1987, but it was restricted to certain magistracies.  By November 1992 the scheme was extended to all magistracies, and by May 1998, the scheme had been extended to the District Court and the High Court.  Clearly the purpose of the legislation is to provide community service order as a sentencing option for the District judges and the High Court judges.  Cases which are tried in the District Court and the High Court are normally related to more serious offences.  The legislation extended community service order to the District Court and the High Court so that even in cases of serious offences under exceptional circumstances, judges could consider such option.  This Court does not exclude the community service order as being a sentencing option under exceptional circumstances where the offences involved are serious, including bribery and corruption.

7. However, bribery and corruption have been for ages regarded as crimes which are intolerable in a civilised society.  They are cancerous activities in a healthy and sound society and their impact to the entire society could be serious, far-reaching and adverse.  They must be eradicated quickly and thoroughly, otherwise they would spread to the whole community like a prairie fire that never burns out and the consequence is disastrous.  As the Court of Appeal stated in Secretary for Justice v Lau Cho Man (unrep., AR No 8 of 1997, [1997] HKLY 337):

Corruption strikes at the root of a clean and efficient system which all of us value so much and which has brought success to Hong Kong.

8. Thus, as was said by Roberts CJ in Lai Yuk Kui v The Queen [1981] HKLR 691:

The imposition of deterrent sentences on those who are convicted of bribery is an important factor in the community’s efforts to eradicate corruption.

9. It was stated by the Court of Appeal in the case of R v Chan Koon Kwok Arthur [1990] 2 HKLR 458:

Attempts to inhibit the spread of corruption necessarily involve an element of general deterrence, even in the case of a first offender, so that the gravity of offences in breach of the Prevention of Bribery Ordinance (Cap. 201) may properly be marked.

Thus, in the case of Lai Yuk Kui v The Queen [1981] HKLR 691, the Court laid down the following guidelines:

An immediate custodial sentence should normally be imposed whether the offender is a public officer or not.  The usual minimum imprisonment for relatively minor cases or corruption in the public sector should be 12 months.  And a fine, probation or a suspended sentence should be imposed only in exceptional cases where the facts or circumstances of the offender justify it.

10. The Magistrate, in view of the exceptional circumstances in the case, did not sentence the respondent to immediate imprisonment.  We opine that exceptional circumstances are mainly judged on the basis of degree and common understanding.  Generally speaking, exceptional circumstances can be categorised into personal exceptional circumstances, exceptional circumstances relating to the nature of the offence, and exceptional circumstances relating to the consequences.  The definition of exceptional circumstances varies from case to case.  The circumstances are usually very extreme or it could attract an immediate outpouring of public sympathy.

11. The Magistrate did not specify the exceptional circumstances in this case.  But obviously, a guilty plea, general family background and financial losses do not constitute exceptional circumstances.  As was said by prosecuting counsel:

…had the defendant succeeded in bribing the CLP inspector into accepting sub-standard electrical equipment, there would have existed the potential for quite serious adverse consequences, such as fire hazards.

12. This kind of conduct should not be tolerated and must call for a severe sentence in order to have effective deterrence.  Therefore, we find that the Magistrate in this case had not followed the sentencing principles and guidelines laid down by the Court of Appeal for bribery and corruption cases, and that he had underestimated the seriousness of the offence, nor had he specified the exceptional circumstances which led the court to depart from the guidelines given by the Court of Appeal.  We are of the opinion that the Magistrate erred in principle in making the community service order.  In view of the facts of the case, since the amount of money involved was relatively small, the starting point should be a sentence of 9 months’ immediate imprisonment.  Having taken into account the respondent’s family and personal background, and his guilty plea, we think that he should be given a one third discount (namely, a reduction to 6 months’ imprisonment).  And since this is an application for review by the Secretary for Justice, resulting in the respondent who initially was given a non-custodial sentence but now is being sentenced to immediate imprisonment, we will further reduce the length of the sentence.  Last, the respondent has already served the community service order for 100 hours according to the Magistrate’s order.  We opine that all these are factors which should be considered during the sentencing.  Having regard to all these factors, we find that the community service order given by the Magistrate is manifestly inadequate, and hence it is now substituted by 3 months’ immediate imprisonment.  We have to point out that the questions of whether the court could impose community service order and immediate imprisonment at the same time and under what circumstances it could do so are not issues in this case, and therefore we do not intend to give any guidance on such.

13. For the above reasons, we allow the application for review by the Secretary for Justice.  The respondent’s sentence is substituted by 3 months’ imprisonment.

Mr Harry Macleod, Deputy Director of Public Prosecutions and Ms Denise Chan Fung Shan, Senior Government Counsel, for the applicant.

Mr Peter Wan Wah Shing, instructed by Darin Leung & Partners, for the respondent.