HKSAR v. Lau Si Sing

CACC174/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 174 OF 2009

(ON APPEAL FROM DCCC NO. 114 OF 2008)

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BETWEEN

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Before : Hon Hartmann JA and McMahon J

Date of Hearing : 2 December 2009

Date of Handing Down Judgment : 8 December 2009

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J U D G M E N T

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Hon McMahon J (giving the judgment of the Court) :

1.The applicant was convicted after trial before Deputy District Judge J. Chan of an offence of conspiring that he, as an agent, accept advantages contrary to section 9(1)(b) of the Prevention of Bribery Ordinance (“the Charge 1 offence”) and of an offence of conspiracy to pervert the course of public justice contrary to common law (“the Charge 3 offence”). He was sentenced to 3 years 9 months’ imprisonment on the Charge 1 offenceand to 15 months’ imprisonment on the Charge 3 offence. The judge ordered 8 months of those sentences to run consecutively, making a total sentence of 4 years 5 months’ imprisonment. The applicant seeks leave to appeal those sentences. The judge made a restitution order pursuant to section 12(1) of the Ordinance, but no issue is, or could be, taken with that.

2.The prosecution case at trial was that the applicant, while the managing director of McDonald’s (Hong Kong) which operated a well known chain of restaurants in this city, solicited and received from one of the foodstuff suppliers to his company a total of $2,325,000 over a period of nearly 2 years in return for favouring the supplier with McDonald’sbusiness. The person in charge of the supplier company’s business with McDonald’s was the person who actually paid the illicit monies to the applicant and he became a prosecution witness (PW1) at trial. Those facts grounded the Charge 1 offence.

3.On 29 June 2007 the applicant and PW1 were intercepted by Immigration Department officials when they were about to depart Hong Kong for Macau. While they were detained in a room at the Macau Ferry Terminal the applicant managed to talk to PW1 and urged him to tell the ICAC officers that the bribe monies paid by PW1 were in fact investment sums which were PW1’s share of a joint investment that they were undertaking in the Mainland. Those facts grounded the Charge 3 offence.

4.Mr Clive Grossman SC, leading Mr Graham Harris of counsel on behalf of the applicant, advances a number of grounds of appeal against sentence. They may be summarised (and renumbered) as follows :

(1)  that the starting points of sentence taken by the judge in respect of each of the charged offences were too high;

(2)  that it was wrong in principle that the sentences imposed were ordered to be served in any part consecutively;

(3)  that as a consequence of the above errors the totality of sentence was manifestly excessive; and

(4)  that the judge failed to attach sufficient weight to various aspects of the applicant’s mitigation.

Ground 1

5.The judge had taken a starting point of sentence of 4 years’ imprisonment and had reduced that by 3 months to give credit for the applicant’s clear record. In his Reasons for Sentence he said :

“24.  I find the present case a serious case of corruption in the private sector.  The total bribes received by the defendant amounted to over $2.3 million.  The conspiracy for the 1^st charge spanned over a period of almost two years.  The defendant at the material times was the top man of McDonald’s (Hong Kong), a well-known corporation employing many employees.  Many of them are youngsters.”

6.In Attorney General v. Hui Kin Hong [1995] 1 HKCLR 227 this court said :

“  Nobody in Hong Kong should be in any doubt as to the deadly and insidious nature of corruption.

Still fresh is the memory of the days of rampant corruption before the advent of the Independent Commission Against Corruption in early 1974.

And there have been recent reminders.  ‘Bribery is an evil practice which threatens the foundations of any civilised society.’  That is how the Privy Council put it in the recent case of Attorney General v. Reid [1994] 1 AC 324 at p. 330H.  And even more recently (in The Queen v. Chong Ah Choi, Magistracy Appeal No. 281 of 1994, October 4, 1994, at p. 11G) this Court, speaking of corruption in the same breath as drug trafficking, characterised both as ‘cancerous activities’”.

7.The complaint that the starting point of sentence taken in respect of the Charge 1 offence was manifestly excessive cannot succeed. The offence represented a continuing course of conduct by the applicant over a period of 2 years. That course of conduct came to an end simply because it was interrupted by the intervention of the ICAC. There was nothing to suggest that it would not otherwise have continued. The applicant throughout that 2 year period was the managing director of McDonald’s in Hong Kong and his corrupt activities represented a breach of trust of very considerable proportions. The totality of bribe monies paid to the applicant was substantial, and we note also that the scheme of corruption showed some sophistication in that there were arrangements made by the applicant that the corrupt monies were to be paid to him through the bank accounts of third parties. The monies paid were calculated on the basis the applicant was to receive, on a periodic basis, 10% of the price of the foodstuffs provided by PW1’s company.

8.The primary argument advanced on behalf of the applicant was that his actions had not harmed his company in that there was no evidence that it suffered financial loss or that inferior foodstuffs had been provided to it as a result of his activities and, in the course of those activities, he had not corrupted any of his staff. Nor, it is said, was there any overt suggestion that, if PW1’s company had refused to pay the monies, business would be taken from it. Even accepting those arguments, and we have considerable hesitation in doing so regarding the assertion that McDonald’s was not harmed, at least in its finances or in its reputation, by the applicant’s actions, we are satisfied that the scope of the corruption involved when considered in the context of the applicant’s breach of the high degree of trust reposed in him results in our being unable to agree that the sentence was manifestly excessive.

9.While there are no guidelines in sentencing for offences of this sort given the diversity of factual situations possible, we note that in Attorney General v. Ki Hon & Another [1988] 2 HKLR 220 this court, in reviewing the sentence imposed upon an assistant purchasing manager of Cathay Pacific who had accepted advantages of at least $1,200,000 from suppliers of foodstuffs to the airline, was of the view that an appropriate sentence after trial was also one of 4 years’ imprisonment. In that case while the time frame of the offence was greater, the breach of trust was less.

10.In Attorney General v. Leung Kin Wai [1996] 4 HKC 588, Power VP, in reviewing the sentences imposed upon a senior manager in the Hong Kong buying department of a large international toy company, said :

“… We do not need to state again the strictures repeatedly made by divisions of this court stressing the seriousness of commercial corruption.  Such offences are properly likened to an insidious cancer secretly gnawing at the vitals of commerce. …”

In that case the sum of the corrupt monies paid was less than half that involved in the present case, but the court was of the view that an appropriate sentence after trial was again one of 4 years’ imprisonment.

11.We have been referred to other cases which deal with circumstances involving large sums of money paid as bribes over similar or greater time periods where the offenders received lesser sentences. But those cases in the main did not involve the same degree of breach of trust or in other factual aspects differed from the present case and in our view are of no substantial assistance.

12.We are satisfied that the starting point of sentence taken by the judge in respect of the Charge 1 offence was not manifestly excessive.

13.The starting point of sentence taken in respect of the Charge 3 offence was one of 18 months’ imprisonment. That was also reduced by 3 months on account of the applicant’s clear record. The complaint that the starting point of sentence was too high has caused us some concern. The conspiracy to pervert the course of justice we accept was wholly unsophisticated. We accept it was formed on the spur of the moment as the applicant and PW1 were together in the room in which they were held at the Macau ferry terminal, and that the only substantial step taken to implement the conspiracy was that both offered the false explanation to the investigating officers that the monies represented a joint investment in the Mainland. We bear in mind that such conspiracies are a pernicious impediment to the functioning of justice and in the normal course should themselves attract a deterrent sentence. Nevertheless we think that given the nature of this conspiracy, in circumstances which suggested more of an act of desperation than of a sophisticated or calculated attempt to defeat the process of the law, the starting point was too high.

14.In the circumstances of this case an appropriate starting point would have been one of 12 months. Allowing for the applicant’s good character, which good character is supported by the mitigating letters provided to us, that should be reduced to a sentence of 10 months’ imprisonment.

Grounds 2 and 3

15.There is no merit to the second ground. The essence of the argument advanced on behalf of the applicant is that it was wrong in principle that the two sentences imposed were not ordered to run concurrently. That quite simply cannot be so. Where in addition to a substantive offence an offender conspires or attempts to, or indeed succeeds, in perverting the course of justice, it can make no sense in principle that the sentences be ordered to run wholly concurrently. To make such an order would, rather than reflecting the overall criminality involved in the offenders course of conduct, allow such offenders to pervert the process of the law with impunity. In most if not all such cases at least partially consecutive sentences would be appropriate and wholly consecutive sentences will very often be justified. The overriding consideration at the end of the day is the totality of sentence. In the present case, to reflect the reduction of sentence we have indicated in respect of the Charge 3 offence, we think that 6 months of that sentence should be served consecutively to the sentence imposed in respect of the Charge 1 offence.

Ground 4

16.This ground asserts that there were aspects of mitigation not given sufficient weight by the judge. Some of the matters relied upon we have dealt with in the previous grounds. The applicant however relies also upon the fact that he is the sole breadwinner for his family and that as a consequence of his conviction his reputation and future job prospects have been seriously damaged so as to impact upon his ability to support his family. Those are not matters which in this case could in any sensible sense be given weight in mitigation. The complaint of the applicant is common to those convicted of this sort of offence and, it must be said, arises from circumstances brought about by the applicant’s own actions. The fact that the applicant has fallen from his privileged place in society as a result of his breach of trust cannot be called in aid.

Conclusion

17.In the result we allow the application, treat the hearing as the appeal and allow the appeal to the extent that the sentence in respect of the Charge 3 offence is reduced to one of 10 months’ imprisonment and is ordered to run consecutively to the sentence imposed in respect of the Charge 1 offence to the extent of 6 months. That is a totality of sentence of 4 years 3 months’ imprisonment.

Ms Maggie Yang, SPP of Department of Justice, for the Respondent

Mr Clive Grossman, SC and Mr Graham Harris, instructed by Messrs Chiu, Szeto & Cheng, for the Applicant