HKSAR v. Wong Tak Kin

DCCC1061/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1061 OF 2008

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Before:   Deputy District Judge Tallentire

Date:     22 May 2009 at 3.06 pm

Offence:  Offering an advantage to an agent (向代理人提供利益) 

Reasons for Sentence

1.Defendant, you were convicted after trial of two offences of offering an advantage to an agent, contrary to Sections 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201.

2.My verdict, delivered some two weeks ago, I dealt fully with the facts and I do not intend to repeat those facts today.  Suffice it to say that on each charge you paid sums of money, namely $50,000 and $200,000, respectively to a middleman, part of which was to be paid to a steward or voting member of The Jockey Club in order to assist or expedite your admission as a Racing Member.

3.In your videotaped interview under caution, which you challenged, you made full and unambiguous admissions of the offences to the officers of ICAC.

4.You are a person of hitherto a clear record.  Prior to sentence I adjourned the case for the preparation of a probation officer’s background report.  That report is before me and I have read and considered it.

5.I decided that Mr Choy’s invitation to obtain a community service order report on these cases was not acceptable as these cases are simply too serious for such an order.

6.I understand the report has been explained to you, understood by you and accepted by you.  I do acknowledge that it is a positive report and supports the mitigation that was put before me on the last occasion by your counsel.

7.Mitigation was entered by Mr Choy on the last occasion as has been supplemented today.  I was told - and all this is supported as I said by the background report - that you are a married man with two young sons in Hong Kong.  Additionally, you have a second family in Australia, comprising an ex-wife and children of 18 and 20.

8.Your report tells me that you provide some $50,000 to $60,000 per month by way of maintenance to that family in Australia.  I understand that you operate a garment factory and at the moment that factory earns about $50,000 a month.  It is therefore difficult to see how you make ends meet with your second family in Hong Kong.

9.I note also that your youngest child has had health problems, requiring surgery.  I am told by Mr Choy that you have reflected upon what you have done and accept your fault.  This demonstrates to me a level of remorse which I have taken into account.

10.Further and I accept that although there was a trial, the main area of challenge was in the admissibility of the videotaped statement.  I turn now to the sentence.

11.Corruption is a cancer that erodes the spirit of Hong Kong.  A corrupt society is a sick society.  The courts of Hong Kong will do all within their power to stifle corruption at any level.

12.In this case, this is not the worse scenario possible.  Indeed, some may feel that your fault was that of impatience.  You desperately wished to join The Hong Kong Jockey Club and to be able to become a horse owner.  Unfortunately, the course you took to achieve this end was the offering of bribes to expedite and achieve your aims.

13.Criminality lies in the temptation into which you have led others.  By offering bribes, you invited others to fall from grace by accepting those bribes.  Quite rightly, The Jockey Club does not allow the acceptance of advantages by its agents and you knew that.

14.I note your clear record.  I accept now that you do express remorse.  I note also that your two families will be placed in extreme financial hardship by your incarceration for that is the only possible sentence.  I note also the amounts of bribes offered were not particularly large.  One has to take into account the middleman would obviously take their cut before sharing with the agents of the Club.

15.I note and accept that though the matter went to trial that the sole challenge was to the admissibility of the cautioned statement.  I have to say that in my opinion the 2nd charge is by far the more serious involving a larger amount of bribe and a longer journey down the road of criminality.

16.I am obliged to counsel for the authorities that have been placed before me.  Those authorities are clear and correct that the only possible sentence is one of imprisonment, except in most extreme of circumstances.  Of particular assistance was the Secretary of Justice v Kwan Chi Chung & Others(?), Application for Review No. 1 of 1999.

17.Therefore, taking all factors into account, the following sentences will be imposed.  Stand, please.  On the 1st charge, you will go to prison for 9 months; on the 2nd and more serious charge, you will go to prison for a period of 2 years.  However, to effect the principle of totality and to extend the hand of mercy, those two sentences will be served concurrently, making a total of 2 years’ imprisonment.