Lai Yuk-kui v. The Queen
Read the full judgment text of CACC 917/1981 on BabelCite. This Court of Appeal judgment.
1. The appellant was convicted of offering an advantage, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap.201. The particulars of the offence alleged that the defendant offered a sum of $2,000 to a Tax Inspector named BOK Tin-yuen, as an inducement to the inspector to abstain from performing an act in his capacity as a public servant, that is to say, taking action in respect of the defendant's failure to register a business as required by the Business Registration Ordinanc
Cited by 38 cases
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CACC000917/1981 Case No. : Criminal Appeal No. 917 of 1981 Date of hearing: 11th November, 1981 Date when judgment was delivered: 11th November, 1981. ORDER: Appeal against conviction and sentence dismissed. Cases cited by counsel in agrument:
Coram: Roberts, C.J. Date of Judgment: 11th November, 1981. ----------------- JUDGMENT ----------------- [Appropriate sentences for corruption cases] Preliminary 1. The appellant was convicted of offering an advantage, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap.201. The particulars of the offence alleged that the defendant offered a sum of $2,000 to a Tax Inspector named BOK Tin-yuen, as an inducement to the inspector to abstain from performing an act in his capacity as a public servant, that is to say, taking action in respect of the defendant's failure to register a business as required by the Business Registration Ordinance. He appeals against conviction and sentence. Prosecution case 2. Inspector BOK Tin-yuen, who was the first prosecution witness and the person upon whose testimony in essence the Crown case relied, described how he called at the defendant's premises on the 20th August of this year. In the course of this visit, he saw signs that a business of assembling watches was being carried on there. 3. He called at the premises again on the 26th August, found nobody there and left a card asking the defendant to attend for an interview at his office on the following day. 4. The defendant duly went to the inspector's office on the 27th August and confirmed that the premises were registered in his name. The inspector told him that as he was carrying on business at those premises he must register it under the Business Registration Ordinance. 5. Before the defendant left, the inspector told him that somebody from the department would call at the premises again to see whether or not the defendant had registered the business. 6. The following day, the 28th August, in the morning, Inspector Bok visited the premises. Here, according to the inspector, the defendant offered him two piles and tried to put something in his pocket. The inspector refused and left the premises, being followed by the appellant with whom he then took tea in a nearby restaurant. After this, they returned to the premises again, the inspector saying that he wanted to complete his inspection of them. 7. During this last visit, the defendant, according to Inspector Bok, attempted to put two $1,000 notes in his pocket about three times. The inspector told the defendant that he was going to report this matter to the I.C.A.C. and left with the notes in his pocket. Defence case 8. The defence can be fairly summarised as amounting to a denial that the defendant ever offered money to the inspector or that he ever gave him any money. Indeed, it was suggested that, although no money had been given or offered, there had been a solicitation of money by the inspector. 9. The magistrate was therefore confronted with two entirely different versions of what had happened on the 28th August. Criticism of Statement of Findings 10. The main criticism which has been levelled against the magistrate is that he gave no reasons for the conclusions which he reached. I was referred to LAM Tin-chung v. R.(1) . There are in this judgment two passages, one of which is frequently quoted by the Crown and one of which is frequently quoted by the defence. 11. That which finds favour with the Crown is the passage which says that there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B with no accompanying factors or features to aid it in coming to a decision and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes. 12. The other passage, which appears at p.113 and is commonly quoted by appellants says -
13. The case of LAM Tin-chung was considered in detail by the Court of Appeal in CHAN King-man and Others v. R.(2), in which it expressed the view that the second passage which I have quoted from LAM Tin-chung should be construed as applying only to matters of law and that LAM Tin-chung should not be regarded as requiring, in relation to fact, a district judge or a magistrate to act as if a summing-up was being delivered. 14. So far as the duty of a judge or magistrate in relation to facts is concerned, the Court of Appeal approved an earlier statement of the law contained in a judgment of Mr. Justice Blair-Kerr in the case of R. v. Low(3). The relevant passage of his judgment reads -
15. What the magistrate did in this instance was to set out in some detail the evidence which had been presented to the Crown, following by a summary, in similar detail, of the defence which was put forward by the defendant and his witnesses. Having done this, he set out his findings of fact. His crucial findings were, firstly that two $1,000 notes had been placed by the defendant in the inspector's pocket; secondly, that they had been placed there as an inducement within the terms of the Ordinance; thirdly, that the inspector was at the time acting in his capacity as a public servant; fourthly, that the offer of money was not solicited. 16. Mr. Wong argued on behalf of the appellant that this was insufficient since that the magistrate had made no specific findings of credibility in relation to any of the witnesses. He drew my attention to a number of matters which he said the magistrate should have considered in depth and which if he had done so, might well have led him to the conclusion that he could not accept the evidence given by Inspector Bok. 17. However, the manner in which the magistrate has set out his statement of findings makes it clear that the main features of the defendant's case were clearly in his mind when he reached his decision. From the fact that he specifically found that there was no solicitation of money by the inspector, he has rejected that part of the defendant's evidence which was intended to show that the initiative had come from the inspector. 18. I have to comment that it is, in general, desirable that magistrates should indicate, at least in a brief manner, the reasons why they have preferred one version of events as opposed to the other. I find no ground, however, on which it would be proper for me to disagree with the magistrate's finding of fact which can only have been based on his acceptance of the evidence of P.W. I and a rejection of that of the defendant. Nor, in spite of the persuasive arguments put forward by Mr. Wong, am I left in any doubt as to the rightness of his conclusion; nor do I feel that the conviction can be properly described as 'unsafe'. 19. The appeal against conviction therefore is dismissed. Sentence 20. I turn to the question of sentence, and shall use this appeal as an opportunity, though not at the expense of the defendant, for reminding magistrates of what I conceive to be the correct approach to sentences for corruption offences. 21. As far ago as 1974, in the Attorney General v. LI Yuk-hing(4) the Full Court expressed the view that -
22. Pickering, J. in WONG Yuen-cheung v. R.(5) adopted a similar approach -
23. The same judge, in Criminal Appeal No. 1012 of 1975, dealing with an appeal against a sentence of nine months imposed on a doctor for accepting a commission for the sale of drugs to his employers, said -
24. In 1979, in NG Tat-shing v. R.(6) the Court of Appeal, which refused to interfere with a sentence of five years' imprisonment imposed on a Senior Revenue Inspector for conspiracy, commented that -
25. From these cases, I consider that the following guidelines for magistrates can be derived - 26. Firstly, that where an adult is convicted of an offence against section 4(1) or 4(2) of the Prevention of Bribery Ordinance, an immediate custodial sentence should normally be imposed, whether the offender is a public officer or not. 27. Secondly, alternative methods of dealing with an offender such as a fine, a probation order, or a suspended sentence should be imposed only in exceptional cases where the facts or the circumstances of the offender justify it. 28. To these I would add the following additional guidelines. I suggest that magistrates should approach the question of penalty to be imposed for such an offence on the basis that the usual minimum imprisonment should be twelve months. This guideline, of course, is not to be construed as interfering with the usual discretion of a magistrate to impose a lesser or greater sentence when the case justifies it. 29. The same principles should apply to a person convicted of an offence against sections 5, 6, 7 and 8 of the Prevention of Bribery Ordinance, though I express no view as to appropriate sentences for offences against sections 3 or 9 which involve a far wider range of moral culpability. 30. It appears that during the past year or two the courts have not been inclined to be as severe on corrupt offenders as they were a few years ago. Perhaps in the belief that corruption was less widespread than it used to be. 31. While it may be that the large scale syndicated corruption of the early 1970s has gone, and let us hope that this is so, the number of prosecutions for individual acts of corruption remains substantial and I ask magistrates, therefore, to bear in mind the guidelines suggested above. 32. The imposition of deterrent sentences on those who are convicted of bribery is an important factor in the community's efforts to eradicate corruption. Appellant 33. It would be unfair to impose upon this appellant a sentence of the kind which I have suggested should be generally applied in the future. It was not unreasonable, in view of the level of sentence which has been imposed in recent months for similar offences for the appellant's advisers to suggest to him that his chances of success in an appeal against sentence were reasonable. 34. I shall therefore do no more than dismiss the appeal against sentence since, for the reasons that I have just given, I think that a sentence of six months' is below the proper level for an offence of this nature. Representation: Wesley WONG (Woo, Kwan, Lee & Lo) for Appellant Hagon, Crown Counsel, for Respondent (1) [1970] H.K.L.R. 105 (2) [1980] H.K.L.R. 105 (3) [1961] H.K.L.R. 113 (4) App. for Review No.3/74 (5) Crim. App. 870/74 (6) Cri. App. No. 856/79 |
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