Fung Hum-yiu and Others v. The Queen
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CACC000856/1979
Coram: Roberts, C.J. Date of Judgment: 27 September 1979 ----------------- JUDGMENT ----------------- [Disparity of sentences between co-defendants] 1. The four appellants and two other men were charged before a magistrate with offences under section 4(2) of the Prevention of Bribery Ordinance. All six pleaded guilty to these offences, the first appellant, FUNG Hum-yiu, to one charge of accepting an advantage and the second, third and fourth appellants each to two charges of accepting an advantage. Facts 2. During the period of these offences, (September last until the early part of this year) a dumping site at Gin Drinker's Bay was operated by the Public Works Department of the Hong Kong Government. This was a reclamation site, where it was important that only materials which were suitable for use in a reclamation should be dumped. Materials such as household rubbish and large rocks, which are not suitable for use in such reclamations, should have been rejected by the members of the Public Works Department staff who were responsible for checking the loads of lorries. 3. During the period with which the charges are concerned, the tip was supervised by the first appellant, Mr. Fung, who was a Public Works Department Assistant Inspector. He was the foreman of a group of Public Works Department artisans, which was under a duty to accept onto the tip only authorized lorries and to ensure that the nature and quality of the materials contained in the lorries were acceptable. It was their duty to turn away lorries which did not meet these conditions. 4. A Mr. Kong Kit, the proprietor of a construction company, approached the first appellant in October 1978 and paid him a sum of $2,000 in order that the first appellant should not check his subordinates' work properly. 5. At about the same time, Mr. Kong Kit made a separate approach to one of the artisans on the site, a Mr. LI Wing-kan, and agreed to pay him a dollar for each of Mr. Kong's lorries which went to the site. Li would distribute this money among the other artisans. In return, they would not carry out their duty to ensure that material dumped by Wing Kee Construction Company lorries was of the proper standard. Li distributed part of the money he received to the other appellants. Li appeared before the same magistrate, on a separate occasion, and pleaded guilty to receiving sums of $3,200 and $2,000. He asked for three other offences involving substantial amounts to be taken into consideration, and was sentenced to eight months' imprisonment. Disparity of sentences 6. The second, third and fourth appellants have argued that it is unjust that they should each have been sentenced to twelve months' imprisonment in relation to only two charges, involving far smaller sums of money, whereas Li, the organizer of the payments which they received, was dealt with less severely. 7. The magistrate, in his statement of findings, dealt with the submission, by counsel who appeared for all the defendants before him, that the other defendants should receive lesser sentences than Li. He said that he did not agree at that time because when Li was sentenced he had not been made aware of Li's leading part in dealing with Kong, and in passing on the proceeds of the arrangement to the other defendants. The magistrate added that he felt that the normal sentence for Li should have been twelve months but that he should make a substantial reduction in view of Li's co-operation when he was arrested. 8. The record suggests that the other appellants have been equally co-operative since they were first arrested by ICAC officers, and I do not think that this is a factor which, by itself, which would justify a substantial difference in sentence between these appellants and Li. 9. Furthermore, it appears from the magistrate's statement that if he had been aware of the leading part taken by Li, he would at least have imposed upon Li a sentence equal to that which he passed on the second, third and fourth appellants. 10. I accept that a comparison of the sentences on Li and the second, third and fourth appellants has left a sense of injustice in the minds of those three appellants. I also think that they are justified in so feeling, since Li was the prime mover in this aspect of the corrupt transactions at Gin Drinker's Bay. 11. I do not see anything wrong in principle in the sentences imposed on these three appellants. Had Li been sentenced, as I think would have been correct, to a longer term than 12 months, I would not have been disposed to interfere. But Li has been fortunate, as a result of which the sentences on these three appellants are comparatively too high. 12. Therefore, I quash the sentences imposed on the second, third and fourth appellants and substitute sentences of six months' imprisonment on each of the two charges to which they pleaded guilty, the sentences to run concurrently. I confirm the magistrate's order for the payment by each appellant of $1,300 to the Crown with three months' imprisonment in default, such three months to run consecutively to the six months which I have imposed on the first two charges. First appellant 13. The magistrate took the view that a heavier sentence should be imposed on the first appellant, because he was the foreman at the site and, as the responsible officer in charge of that site, must accept a higher degree of culpability. I agree with the magistrate. 14. It would have been difficult for the artisans to have neglected their duty, unless the foreman's compliance had first been secured, as it was by the corrupt payments made to him. The construction company had to be sure, first of all, that the foreman would not do his job as it should have been done. 15. I have taken into account the various mitigating factors which the first appellant has put forward but it is almost inevitable, when a public servant is convicted of bribery, that the sentence imposed by the court should only be part of the punishment and that he and his family will suffer other penalties including the loss of valuable pension rights and career prospects. 16. At most, they are factors which a court can take into account when deciding upon the appropriate sentence which, on a conviction under section 4 of the Prevention of Bribery Ordinance, should normally be one of imprisonment. 17. The first appellant's offence was not dependent upon that of Li, as in the case of the other appellants, and it is not therefore necessary to relate the length of his sentence directly to that of Li. Standing by itself, as I think it properly can, a sentence of 15 months for corruption offences by a Crown servant in a position of some responsibility cannot be said to be manifestly excessive. 18. I therefore dismiss his appeal against sentence. Representation: Cheng Huan (H.H. Lau & Co.) for 1st appellant 2nd, 3rd & 4th appellants in person Duncon for crown |