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CACC000870/1974
IN THE SUPREME COURT OF HONG KONG
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO. 870 OF 1974
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WONG YUEN CHEUNG |
Appellant |
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THE QUEEN |
Respondent |
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Coram: Pickering, J.
Date of Judgment: 25th October, 1974.
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JUDGMENT
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1. The appellant pleaded guilty to a charge of corruptly offering $100 to an Industry Assistant of the Commerce and Industry Department as an inducement to assist a certain plastics factory, of which the appellant was an employee, in relation to the allocation of a Certificate of Origin registration number. The appellant was sentenced to six months' imprisonment and this appeal is against that sentence.
2. Mr. Rowdget Young, for the appellant, referred to Application for Review No. 3 of 1974 in which this Court said:
"Mr. Sceats, who appeared for the Crown, produced a list of the penalties in seventeen cases of soliciting in the year 1973 which were imposed in the District and Magistrates Courts. We notice with great concern that in at least three cases a fine was imposed; that in more than one case the offender was placed on probation and in one case an offender was given a suspended sentence. We think that in the present climate of Hong Kong such sentences are wrong in principle for an offence under section 4 of the Prevention of Bribery Ordinance. In all but the rarest of cases an offence under this section merits a custodial sentence and one which takes effect immediately".
3. That case referred to a charge of corruptly soliciting and accepting contrary to s.4(2) of the Prevention of Bribery Ordinance. In Application for Review No. 7 of 1974 the charge was corruptly offering and the appellant in that case had been sentenced to six months' imprisonment suspended for eighteen months. In that case we said:
"As we see it, this is an isolated offence by a first offender who is not a public servant or in any position of trust, who is twenty years old and in steady employment. His very age brought the learned magistrate face to face with s.109A(1) of the Criminal Procedure Ordinance which provides:
'No court shall sentence a person of or over sixteen and under twenty-one years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.'
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It would, we consider, be fanciful to suggest that no other method of dealing with this youth, apart from immediate imprisonment, was appropriate. Indeed, so to hold would be tantamount to declaring that all convictions for corruption must be dealt with by means of immediate custodial sentence. We are not unaware of the present climate of public opinion in regard to corruption nor indeed of the desirability of the court's making some response to that climate in the matter of sentencing. Crimes involving corruption are serious crimes and must be so dealt with by the courts. That is a different matter, however, from the court's over-reacting to any particular climate of opinion and embarking upon rule-of-thumb sentencing. The Independent Commission now exists and all responsible citizens should wish it well. But the courts do not play politics - despite ill-informed and inaccurate assertions in recent letters to the press regarding the 'timing' of the first Full Court judgment to be delivered in a case involving s.10(1) of the Prevention of Bribery Ordinance. |
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We are, of course, dealing with a respondent who is twenty years of age and to whom, therefore, the provisions of s.109A(1) of the Criminal Procedure Ordinance apply, but we would not wish to be taken to imply that a person convicted of an offence involving corruption who is over twenty-one years of age must automatically receive an immediate custodial sentence. We have stressed the gravity of these offences and the desirability that the courts, in imposing sentences in respect of them, do not close their eyes to the climate of public opinion but it remains true that each case must be considered on its merits and that there can be no rule-of-thumb, which would be the inevitable result on our holding that this respondent, in these circumstances, should necessarily have been sent to prison forthwith. The sentence imposed upon him will hang over his head for eighteen months either ensuring his good conduct or being activated if he falls foul of the law again". |
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and later:
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"Penultimately we would observe that it must be realised, and quickly realised, by everybody in the community, that the person who makes a corrupt offer is just as guilty of a criminal offence as the person who accepts that offer. When the offering stops there will still be corruption because there will still exist the Government official, partner or member of a private firm, employee of a public utility, who will, out of cupidity, make a demand for money or drop a broad hint that money would be acceptable. When the offering stops that hard-core residue of corruption will remain - hopefully only for a time. But in our view it is true to say that when the offering stops the back of the problem may well have been broken. In the meantime it is for everybody in the community to appreciate that the making of a corrupt offer is just as much a criminal offence and just as likely to result in punishment as is the acceptance of such an offer". |
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4. Certain statisties were produced to us from which it could be seen that out of nineteen penalties for "offering" offences under s.4(1) imposed uring 1973 and the very early part of 1974, six such consisted of immediate custodial sentences. A more recent list of sixteen similar cases shows that of these only three, including the present case, were visited with immediate custodial sentences most of such offences being punished by suspended sentences or fines or both. On the other hand a consideration of cases involving soliciting under s.4(2) demonstrates that almost invariably, persons found guilty under that subsection receive an immediate custodial sentence.
5. It does appear that a gap has emerged in regard to the treatment of these two types of offence and being reluctant, sitting as a single judge, to lay down policy lines in regard to this particular aspect of sentencing, I have accordingly consulted the learned Chief Justice and others of my brethren who concur in the view that it is opportune to hark back to the comment this Court made in Application for Review No. 7 of 1974, to the effect that the person who makes a corrupt offer is just as guilty of a criminal offence as the person who accepts that offer and that when the offering stops the back of the problem may well have been broken, Whilst it remains true, as we said in that case, that each case must be considered on its merits and that there can be no rule-of-thumb sentencing, we consider that in regard to cases brought under s.4(1), just as under s.4(2), an immediate custodial sentence is properly the norm unless there are special circumstances as in Application for Review No. 7 of 1974, for imposing some alternative sentence. We emphasise "the norm". We are not advocating automatic sentences.
6. In the present case the appellant, having been informed by the Industry Assistant that some of the factory's records were not in order but that the irregularities would not affect the factory's application for registration for the issue of Certificates of Origin, induced a female employee of the factory, who was reluctant to behave as he asked, to stuff a bundle of notes totalling $100 into the shirt pocket of the Industry Assistant who very properly reported that matter to the Independent Commission Against Corruption.
7. In the light of what I have said previously and of the apparent necessity for closing the gap between the sentences habitually imposed for offences under s.4(1) and those imposed under s.4(2), the present sentence of six months' imprisonment cannot be criticised and the appeal against sentence is dismissed.
Representation:
R.W. Young of R. v. Young & Co. for appellant.
T.J.R. Carolan, C.C. , for respondent.
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