HKSAR v. Ng Ka Wah and Others

DCCC677/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 677 OF 2010

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Reasons for Sentence

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1.Defendants, there are five charges on the indictment.  All charges are of conspiracy for an agent to accept advantages, contrary to section 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap.201 and sections 159A and C of the Crimes Ordinance, Cap.200.  All four of you defendants have pleaded guilty to the charges.

2.1st defendant, you pleaded guilty after the video-recorded interview was admitted into evidence after a hearing within a trial, namely, a voir dire.  You face the charges either solely or jointly with the other defendants.

3.1st defendant, you face two charges, one sole charge on Charge 1, and a joint charge, Charge 2, with the 2nd defendant.

4.2nd defendant, you face four charges.  The 2nd charge, you are jointly charged with the 1st defendant; the 3rd and 4th charge, are sole charges; and the 5th charge, jointly with D3 and D4.

5.D3 and D4, you face one charge each, and it is a joint charge together with the 2nd defendant on Charge 5.

6.As an overview of the general offences which you have committed, I shall set it out as follows.

7.D1 and D2, you were at the time of the commission of these offences Cathay Pacific ground staff, more particularly known as customer services officers.

8.You were accepting bribes in return for issuing boarding passes to flights overseas to Mainland Chinese people.

9.You offered assistance to the mainland travellers by unauthorised access to the Cathay computers prior to the check-in of those travellers.

10.You would tip-off the mainland travellers as to whether they had been selected to go through a security check, and asked if that mainlander was still going to check in despite the security check.

11.If the reply was positive that they would still check in, you would then familiarise yourselves with the traveller’s personal data and travel destinations so that you would be able to answer any security questions quicker and avoid suspicion by the counter-leader on the traveller, and hence a quicker check-in to maximise the chance of a boarding pass being issued.

12.The longer it took for a security check to be completed, the less likely a traveller would get a boarding pass; or, the consequence of delay at the counter whilst checking-in would be such that the traveller may miss the plane.

13.For the 3rd and 4th defendants, you were escorts employed to accompany or arrange for these Mainland Chinese travellers to check-in at the Hong Kong International Airport, to board their flights destined for those foreign countries and obtain boarding passes.  As a result of this you also received rewards.

14.I turn now to the more detailed facts on the case.

15.The 1st and 2nd defendants, and a male named Tsui Ying-kit, who has now jumped bail, were customer service officers in the employ of Cathay Pacific Airways Limited (Cathay).

16.All of you were responsible, among other things, for carrying out check-in procedures for Cathay passengers at the check-in counters at Hong Kong International Airport.

17.D3 and D4, you were escorts employed to accompany or arrange for these Mainland Chinese travellers to check-in at the airport to board their flights destined for foreign countries and obtain boarding passes for them.

18.D1, D2, and Tsui were colleagues.  D1 had known Tsui better than D2.  D2 and D4 had known each other for over 12 years.  D4 introduced D3 to D2.

19.D1 and D2 rendered assistance to passengers checking in and minimised the possibility of a boarding pass not being issued to the traveller and thus missing their flight.

20.These, to whom assistance was rendered to, were passengers who were subjected to more stringent measures at the check-in counters and to whom the customer services officer, that is D1 or D2, or CX’s security unit would conduct more detailed enquiries on the traveller.

21.If the passenger when checking in took too long at the check-in counter, the counter-leader would then be alerted and conduct detailed enquiries with the passenger and exercise their discretion not to issue the passenger with a boarding pass.

22.To avoid arousing the suspicion of their counter-leader, D1 and D2 would access the Cathay computer prior to the passenger checking in and prepare himself to answer promptly any questions by Cathay’s security unit or to give a prior warning to the traveller to enquire whether the traveller in question would still proceed to check-out or not.

23.The access to the computer would expedite the procedures at check-in and avoid arousing the suspicion of the counter-leader.

24.The ultimate purpose was for D1 and D2’s assistance in minimising the possibility of a boarding pass not being issued to the traveller.

25.Once the boarding passes were issued, the 1st and 2nd defendants received rewards.

26.Cathay did not allow the defendants to conduct check-in procedures, including prior access to Cathay’s computer, before the passengers actually presented themselves at the check-in counter.

27.In late 2008, D2, D3, and D4, met in a restaurant.  D3 wanted D2 to provide flight and security information obtained from the computer system of Cathay and to ask the Mainland Chinese travellers fewer questions during the check-in procedures.

28.The 3rd and 4th defendants offered advantages to D2 for his assistance.

29.When the 3rd and 4th defendants’ travellers were due to leave Hong Kong, they would notify D2.  D2 would provide the internal information obtained from the computer system of Cathay, including security information, to D3 or D4, or their associates.

30.D2 had assisted Tsui to receive and offer rewards to Tsui about these mainland travellers.

31.D1 had assisted Tsui and D2 in minimising trouble at check-in.  The rewards were as follows.

32.In Charge 1, D1 received $10,000, and on Charge 2, $5,000, making a total of $15,000.

33.D2, on Charge 2, received about $15,000 from D4, and paid D1 and Tsui a total of about $5,000, so D2’s reward was about $10,000.  That is on Charge 2.

34.On Charge 3, D2 had offered to Tsui a sum of about one to two thousand dollars, and on Charge 4, D2 had received money from Tsui in the sum of one to three thousand dollars, and on Charge 5, D2 had received about $5,000 for providing assistance to D3 and D4, making a total reward of about $16,000.

35.In respect of D3, his reward was $20,000; and D4, his reward was $9,000.

36.The period of these offences was between December 2008 and August 2009, that is for all Charges 1 to 5.

37.Each defendant has been represented by separate counsel, and each counsel has made very full and eloquent mitigation which I have taken into account and considered when passing my sentence.

38.I turn first to the mitigation advanced by counsel for the 1st defendant, Mr Kevin Egan.

39.The 1st defendant is aged 31, and of clear record.  He was previously employed at Cathay as a customer services officer. He had at first, through his kindness, helped Tsui without a reward purely as a good friend.  Later, he was paid for his assistance to Tsui.

40.In due course, the 2nd defendant knew that the 1st defendant was helping Tsui and asked D1 to assist him as well.  Therefore the 1st defendant assisted D2.

41.Mr Egan submits the defendant was at the bottom of the blame chain and that he was just called in to give his colleagues a helping hand.

42.Mr Egan said there is no real victim in this case.  The accessing of Cathay computers in advance was not permitted, but he had just flouted a company policy in that the check-in procedure was not to commence until the passenger was actually in front of the check-in desk.  The defendant was doing what he was required to do, but only doing it earlier.

43.Mr Egan submitted the defendant was doing all that his job required and did not do anything illegal, such as allow people to go in with, for example, forged passports; or people who were not the person on the passport.

44.Furthermore, there was no evidence of any smuggling of these travellers by the defendant.

45.He has submitted that this was just a technical corruption, or technical breaches, and referred me to the case of HKSAR v Cheung Chi-siu [2001] 1 HKLRD 356, or HCMA455/2000, which I shall return to later.

46.Mr Egan has also submitted that there is no suggestion that this offence is a prevalent one. 

47.I accept here there is no evidence that this offence is a prevalent one, and there was no evidence of the defendant’s ever checking-in any illegal immigrants or passengers with forged travel documents, or any assistance to smuggling of passengers.

48.In respect of the 2nd defendant, Mr Stephen Fung, solicitor of Messrs Tang & Lee, mitigated on his behalf.

49.The defendant is also of clear record.  He is aged 46, divorced, with a young son aged 4 at school in Thailand.  As with D1, he was also a customer services officer employed with Cathay Pacific.  He was however employed with Cathay up to the commencement of the offence for a very long period of over 19 years.  Both he and his parents have written letters to the court, the contents of which I have taken into account.

50.Generally, the defendant was the sole breadwinner and supported his parents, and now, as a result of the commission of the offence, he can no longer support them or his family.

51.As a result of these offences the defendant has lost his employment and his marriage has broken down.

52.Mr Fung says he is most remorseful and regretful for what he has done, and all for a very small sum of approximately $16,000.

53.The commission of this offence was as a result of his greed.  D2 knows that he has let himself, his parents and his family down.

54.Mr Fung has asked me to give the 2nd defendant a greater discount because he was the first to offer to be a prosecution witness to assist the prosecution in their case against the other defendants.

55.As for the 3rd defendant, Mr Wong Po-wing, counsel, mitigated on his behalf.

56.The 3rd defendant is 47 years of age and married with a young son at kindergarten.  The son is cared for by the grandmother, who is 74, the defendants the wife, mother of his son has an illness, which is a tumour in her stomach.

57.He has two previous convictions, one of assault, and handling stolen goods, to which he is presently serving a sentence for.

58.His involvement was to take customers to the airport and assist them in checking-in.  He was helping two persons, named Mark and Jason, who had introduced travellers to him.

59.In summary, his strongest mitigating factor was his plea of guilty, which shows remorse, and also the fact that he had been willing to assist the authorities in becoming a prosecution witness against the other defendants.

60.Turning now to the 4th defendant.  Mitigation was advanced by Mr Hanif Mughal, counsel.

61.The defendant is 63 years of age and has three previous convictions, which are all for dishonesty offences.

62.The defendant is married with two grown-up children.  The defendant was a travel agent for about 30 years, but retired some four years prior to the commission of this offence.  As he was unemployed for those four years he took up the offer of a job of assisting in the Mainland Chinese travellers because he was proficient in Mandarin and Cantonese.

63.He had received money, $9,000, from D3, and he took the job as he under-estimated the consequences that would flow.  He did not think it was a big deal.

64.Upon his arrest, though, he made a cautioned statement containing admissions.  He had also agreed to assist the prosecution in becoming a witness in this case against the other defendants.

65.Again, the strongest mitigating factor is his plea of guilty.

66.The mitigation common to the defendants is their plea of guilty which is, in this case, the strongest mitigating factor.

67.For the 2nd to 4th defendants, they had pleaded guilty at the first opportunity and therefore will get the full discount for their plea of guilty, that is, one-third discount, as contrarily to D1, his plea of guilty came after the hearing of the voir dire.  His discount will be less than that of one-third.

68.As for D2 to D4, they were all willing to assist the prosecution in giving evidence and eventually gave witness statements, or provided witness statements and would have given or been called upon to give evidence against D1 had he not pleaded guilty.

69.Mr Egan, of which all other counsel adopted his mitigation, argued that these offences were technical breaches, and the defendants were not guilty of a dereliction of their duty and that there was no victim.

70.In the case of HKSAR v Cheung Chi-siu,which I have mentioned earlier, the defendants were employed as security guards by a security company to work at night in a shopping mall.  A furniture store held monthly exhibitions at the open area of the mall.  The appellants’ immediate superior paid them sums of money to look after the furniture of between four to seven hundred dollars.

71.It was argued there that the defendants did no more than that they were already required to do as part of their job and did not act in a way which they would not otherwise have acted.

72.The company did not permit its guards to accept any advantage in the course of employment.

73.The defendants in that case were sentenced to 7 months’ imprisonment with a starting point of 9 months, the court giving discounts of 2 months on matters such as clear records and the like.

74.I must state from the outset here that it is clear from the Court of Appeal that one-third discounts, or discounts, do include clear records.

75.The appellants there argued that there were exceptional circumstances in the security guard case that made those offences “technical” breaches, and the offences were committed out of ignorance to the law.  There was virtually no victim, the appellants had no intention to harm anybody, they were not guilty of dereliction of their duty.

76.Beeson J found that those were nonsensical submissions. She had noted that the magistrate imposed very lenient sentences on those appellants, taking all proper factors into consideration.

77.I do not accept that the offences these defendants committed were “technical” breaches.

78.In the Secretary for Justice v Kwan Chi-cheong and Others, CAAR 1 of 1999, the court held that:

“The Prevention of Bribery Ordinance provides the sanctions necessary to deal with breaches of this kind. The Ordinance was intended to be draconian in its effect. Bribery, whether in its acceptance or by the offering of advantage, is an evil which can strike at the heart of commercial and public life if it is left unchecked. A punishment that fails to deter will produce all the wrong signals just as sentences which act as a deterrent will reinforce the community’s effort to rid itself of corruption.

For these reasons, even the first offender charged with an offence of corruption under the Ordinance, unless it is merely a technical breach, must expect a deterrent sentence. This will almost invariably involve a sentence of immediate imprisonment.”

79.And went on to say:

“Taking Lawton LJ’s four classic principles of sentencing, [see R v Sargeant [1970], 60 CR.App.R 74 at 77], these are retribution, deterrence, prevention and rehabilitation. It may well be that in many cases, the balancing act which the sentencer must perform will be a difficult one. All factors need to be taken into account but, depending on the circumstances, it may be that greater significance has to be given to one factor rather than another. In cases of corruption, where an advantage is offered or accepted, it is difficult to envisage a situation where public interest does not require deterrence to predominate. The personal circumstances of the offender will carry less weight. This, it seems to this court, should apply whether the corruption is in the public sector or in the private sector”,

as in this case.

80.These charges are brought pursuant to the Bribery Ordinance and are clearly of a corrupt nature.  The defendants conspired to accept advantages.

81.Cathay Pacific and all other airlines are there to ensure that all travellers comply with travel requirements, such as visas that are required to the intended country they are landing at, having a genuine passport, correct name, photo in the passport, and making sure that that passport belongs to the traveller.

82.When there are specific passengers that need to be checked-in, they have an internal system to alert its staff.  They are the first goalies or goal-keepers to security, either on their own flights or for Hong Kong itself, or other countries internationally.

83.The main reasons must be to ensure safety of travel, to reduce the aspects of having forged or false documents or passports, and to prevent the illegal entry of persons to abroad overseas countries.

84.It must be a deterrent to those involved not to cut corners and assist those who may have security issues.

85.The criminality of the offence lies in what the corrupt defendants are trying to do, that is to issue boarding passes to these persons who have security alerts.

86.I accept, on the evidence, there does not appear to be any harm to Cathay, the principal; but the lack of harm is not so much of a mitigating factor, but an absence of an aggravating factor.

87.In monetary terms, the defendants’ rewards were not of a large amount.

88.The offence was committed over a period of between eight and nine months.

89.Hong Kong is an international hub destination for many travellers.  Its good name, and of course, that of Cathay Pacific, would be severely affected.

90.I take these matters into account when sentencing the defendants.

91.I also take into account the principle of totality, and in so doing I pass the following sentences.

92.Defendants, for these offences I draw no distinction in your roles.  For these offences I take a starting point of 2 years’ imprisonment.

93.For the 2nd to the 4th defendants, that term shall be reduced by one-third, giving you full credit for your plea of guilty, and you shall be sentenced 16 months for each offence.

94.For the 2nd to 4th defendants, I further reduce the term to one of 14 months in view of your co-operation with the prosecution and your offer to give evidence.  I make no distinction there that the 2nd defendant deserves a greater discount in respect of his original offer.

95.For D1, I reduce your sentence of 2 years, giving you credit for your plea of guilty, to that of 19 months.

96.For the 1st and 2nd defendants, your sentence will be as follows.  The sentences should be partly consecutive and partly concurrent, and your sentences are as follows.

97.For D1, 19 months on Charges 1 and 2, 1 month of Charge 1 to run consecutive to Charge 2, which makes a total of 20 months.

98.For D2, Charges 2, 3, 4, and 5, you are sentenced to 14 months’ imprisonment, 1 month on Charge 3 and 5 to run consecutive to the other charges, which makes a total of 16 months.

99.D3 and D4, on Charge 5, you are sentenced to 14 months’ imprisonment.

100.D3, that sentence obviously will be consecutive to the present term that you are serving.

101.In respect of the order for restitution.  The sums are as I have said in my reasons for sentence.

102.Under section 12 of the Bribery Ordinance the restitution for D1, will be $15,000.  This is to take away the profits or the rewards that you have received from your accepting an advantage; for D2, it is $16,000; for D3, $20,000; and for D4, $9,000.