HKSAR v. Cheung Tak Shing, Ronald
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DCCC 314/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 314 OF 2010 -----------------------------------
---------------------------- Reasons for Sentence ---------------------------- Charges and allegations 1.The Defendant is convicted after trial of 11 charges of accepting an advantage as an agent, contrary to section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201. 2.In all 11 charges, the Defendant was alleged to have accepted bribes from a Pun Shing-tak (“Pun”) as the reward for giving to Pun 11 projects of renovation works undertaken by the Defendant’s principal, which was a distributor of wine. The offences took place between August 2004 and May 2007. The total bribes were $388,000. Case as found 3.At all material times, Riche Monde was a local distributor of wine of various brands. In October 2006, it was renamed as Moet Hennessy Diageo Hong Kong Limited (“MHD”). The Defendant was responsible for the promotion of various brands of wine, including Johnny Walker Black Label (“Black Label”). He reported directly to MHD’s Managing Director. He negotiated with entertainment spots such as karaokes and bars, etc., to advertise those brands in specially designated areas therein. Decoration and renovation works (“Project(s)”) would be done. He had to take charge of and decide which contractor to engage for each Project. 4.Pun was the proprietor of two companies and involved in another company, all bearing the name “Stardust”. They were the vehicles through which the Projects were awarded to Pun. 5.In 2002 or 2003, Pun and the Defendant came to know each other when Pun was the Project Manager of California Red Karaoke. 6.In mid-June 2004, Pun got a phone call from the Defendant. The Defendant said he understood that Pun was going to leave his job in California Red Karaoke. He asked if Pun would be interested in taking up renovation works for him. Pun replied Yes. He explained that his company would be doing renovation projects for Black Label. He would not talk about the details at that juncture. Pun would give a quotation to him. Pun would not have to keep the price down. He would tell Pun what price to quote. Then it would be OK. 7.He (The Defendant) did not say it directly but Pun understood that he would not award the projects to Pun if Pun refused to collude with him. There were 11 Projects, the subject-matter of the 11 charges, for which Pun paid the inflated sums to him. 8.Between July 2004 and August 2007, the Defendant, on behalf of MHD, accepted Pun’s Quotations and awarded over 20 Projects, 11 of which formed the subject-matter of Charges 1 to 11 respectively. The 11 bribes were paid between 25 August 2004 and 21 August 2007. Since the middle or late 2007, MHD awarded no more projects to Pun. Stardust closed down. The total sum paid by MHD to Stardust for all the 11 Projects was $1,633,081. The total sum of bribes paid by Pun to the Defendant was $388,000. 9.On 24 November 2008, both Pun and he were arrested by ICAC. Under caution he denied receiving any bribes from Pun. Pun was charged with 6 offences of “Offering an advantage to an agent”. After plea bargain, he pleaded guilty to 3 charges which mirrored Charges 1, 6 and 11 of our present case. He was acquitted of the remaining 3 charges which mirrored Charges 4, 5 and 7 of our present case. Pun gave evidence in our present case as a prosecution witness under immunity. Personal background and mitigation 10.He is 42 years of age. He has a clear record. He held a business degree of Monash University in Australia. His element has been in marketing which he thrives throughout the years. After leaving MHD in October 2009, he has run a thriving partnership marketing wine. He earns $70,000 per month. He is now in his second marriage. He has two sons, now aged 10 and 12 respectively from his first marriage. Despite the divorce, he takes good care of his family, which is in harmony. He also supports his aged parents. He is in good terms with his ex-wife who still clings to his emotional support and financial aid. His present wife has suffered leukemia since December 2006. She had stated in her mitigation letter that she was in terminal stage and her life expectancy was only 4 years computing from 2008. That was not reflected in her medical report dated 3 November 2010. Be that as it may, the medical report stated her condition to be “much progressed disease with bulky lymphadenopathy and lymphocytosis”. Upon completing chemotherapy in October 2009, she had remained in remission clinically. 11.Since 2000, he had on a regular basis been donating to Oxfam and on random occasions Community Chest and Orbis. The sum for each year was a few thousand in total. He has only retained the receipts for his Oxfam donations. 12.Defence counsel submits in mitigation that his bail was rendered no longer necessary by ICAC on 3 August 2009. So he had had certain legitimate expectation of not being pursued by ICAC which was dashed on 10 March 2010 when he was re-arrested and then charged. Sentencing considerations 13.Corruption is a very serious offence and it wreaks havoc to the integrity of a society like cancerous cells to the body. Except for a few exceptionally minor cases, all cases ended up in imprisonment. There are no sentencing guidelines. 14.Defence counsel has presented me the case of HKSAR v Nguyen Van-to CACC 353/2006. The applicant there was the regional manager of Wellcome Supermarket. He was responsible for overseeing store operations in North Kowloon and the New Territories. He had the authority to decide on the placement of various stalls. In a period of 7 months, he accepted 8 sums of monies, in total $54,000 as reward for supplying information and assisting stall owners to obtain concessionaire contracts to have their stalls placed in his stores. The Court of Appeal revised the starting point from 30 months to 24 months. 15.As a kind of background and comparison to a certain extent, defence counsel informs me that Pun was sentenced to a total of 3 months and 1 week’s imprisonment in the Eastern Magistracy in relation to 3 of the mirror charges. The learned magistrate had given him 50% discount due to his pleas of guilty and evidence given in our present case. The total sum of bribe he had given was $160,000. Defence counsel accepts that the sentence was rather low and he reckoned that a starting point of 18 months might possibly have been adopted in Pun’s case according to the precedents. Sentencing this Defendant 16.The Defendant had extensive authority to award Projects on behalf of MHD. It was a serious case of breach of trust. The offences took place between August 2004 and May 2007. The total bribes were $388,000. It was a more serious case than Nguyen Van-to by comparison. I am also aware of Pun’s sentences in the Eastern Magistracy. He was involved with fewer charges and less bribes. I do not think it serves as a constructive comparison. Here I take a starting point of 27 months on each charge. 17.In considering defence counsel’s mitigation that the Defendant had enjoyed certain legitimate expectation to stay free since 3 August 2009 until re-arrested on 10 March 2010, I have sight of the notice issued in revocation of his bail before me. The notice stated as follows:
18.I am told that the interim 7 months was taken to prepare a case based on Pun’s evidence upon Pun showing willingness to give evidence against the Defendant. The 7 months taken is not inordinately long. I do not think there was any basis for the Defendant to harbor any legitimate expectation that the investigation had come to an end. 19.The Defendant is the sole breadwinner of a family comprising two aged parents, 2 sons and an ailing wife. For a person who had committed a series of premeditated offences continuing for a period of 2 years and 9 months, he can hardly start now to express worries over his family circumstances in case of his being convicted. Having said so, I am not impervious to the disastrous impact of his conviction on his family. As a separate factor for my consideration is his wife’s medical condition, which has only come to light after the commission of the present offences. It is for the sake of his family and, in particular, his wife that I quite exceptionally reduce his sentence by 4 months. I knock off another 2 months for his support of the charities over the past few years. His sentence is 21 months for each charge to run concurrently. 20.Pursuant to section 12(1) of the Prevention of Bribery Ordinance, I order him to pay to MHD the advantage he had received in the total sum of $388,000. I am told by the defence that his bail of $40,000 can be applied as part payment with the balance to be paid within 6 months upon his release from prison. I make the order accordingly.
Please refer to CACC468/2010 for the relevant appeal(s) to the Court of Appeal. Please refer to CACC468/2010 for the relevant appeal(s) to the Court of Appeal. Please refer to CACC468/2010 for the relevant appeal(s) to the Court of Appeal. | ||||||||||||||||||||||
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