To Ying-chong v. The Queen
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CACC001142/1974 IN THE SUPREMEN COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.1142 OF 1974 -----------------
----------------- Coram: Morley-John, J. Date of Judgment: 6th February, 1975. ----------------- JUDGMENT ----------------- 1. The appellant pleaded guilty to a charge of offering an advantage to a public servant contrary to section 4(1) of the Prevention of Bribery Ordinance, Cap. 201, and was sentenced to a term of two months' imprisonment. It is against this sentence that the appellant now appeals, and the grounds of his appeal are that his sentence was too severe. Due to the length of time between the date of sentence and the hearing of this appeal - two months, I consider it only fair for the sake of the record to add that the appellant was granted bail pending the hearing of this appeal. 2. Briefly the facts of this case were that the appellant went to the Aliens Section of the Immigration Department with his mother-in-law, a Khmer national, who was visiting Hong Kong, and applied to have her visitor status changed to that of permanent residence. This application was refused. The appellant and his mother-in-law made a second visit to the Immigration Department, but again the application was refused. On the 26th November 1974, the pair again visited the Immigration Department where their application was refused for the third time. The appellant then approached the Immigration Officer concerned and asked him to come out for a meal as he was sure that he could assist with the application. The Immigration Officer reported this approach to the Independent Commission Against Corruption and was told to meet the appellant at the restaurant in question when officers of the Independent Commission Against Corruption would be present. The meeting went ahead as planned, and the appellant was seen to hand over $300 to the Immigration Officer, who then gave a pre-arranged signal and the appellant was arrested by officers of the Independent Commission Against Corruption. 3. In his statement of findings the learned magistrate said that he was influenced, in sentencing this appellant, by remarks of Pickering J. in Wong Yuen-cheung v. Reg. (1). He said that in that case the learned judge said that he had consulted the learned Chief Justice and others of his brethren and that while it will remain true that each case must be considered on its merits, the judges considered that in regard to cases brought under section 4(1) (Offering) just as under section 4(2) (Accepting) an immediate custodial sentence is properly the norm in the absence of special circumstances. However, in his judgment the learned appeal judge went on to say:
4. The learned magistrate in his statement of findings continued:
In fact he only sentenced the appellant to two months' imprisonment. 5. Unfortunately the appellant was not represented in the lower court. After having been convicted on his plea of guilty in mitigation the appellant is recorded as only saying:
I imagine the "her" referred to is the appellant's mother-in-law but after the reference to marriage he could also have been referring to his wife on whose behalf he had attempted to change her mother's visitor status to that of a permanent resident. 6. As counsel for the appellant has said this is not a case of the appellant attempting to obtain some sort of financial advantage for himself or his business, or attempting to cause some official to overlook, for example, a breach of some factory regulation, it is an isolated offence by a first offender. The appellant prior to this case had a clear record, he is 34 years of age, a respectable citizen, the owner of a small plastic hand-bag factory. He has just got married, and at the instigation of his wife and mother-in-law he had foolishly attempted, albeit criminally, to save his mother-in-law from returning to the Khmir Republic and the dangers of that war torn country. Also as counsel pointed out the fact that this sentence has been hanging over his head for two months has taught him a lesson he will never forget. Crown counsel drew my attention to a similar case tried in July last year where the defendant had attempted to bribe an official of the United States Consulate-General with the sum of $300 to obtain a visa to the United States of America which I consider a more serious case, and in that case the learned magistrate had imposed a substantial fine but not a custodial sentence. 7. I am satisfied that if the learned magistrate in this case had had the facts explained to him as I had by counsel for the appellant he would in all probability not have imposed a custodial sentence, the period of that sentence, as the learned magistrate said, was as short as he thought appropriate. This would seem to indicate that although all cases of bribery are very serious the learned magistrate did not consider this present offence serious enough to award a higher sentence. 8. I am fully aware of the gravity of this type of offence, however, I am satisfied that there are special circumstances in relation to this case and the appeal is allowed to the extent that the sentence of two months' imprisonment is set aside, and in lieu thereof is substituted a fine of $5,000 or three months' imprisonment in default of payment. Payment is to be made within fourteen days. Date: 6th February, 1975.
Representation: Mr. D.G. Sparrow for the appellant. Mr. A.M. Niamatullah, Crown Counsel, for the respondent. |