HKSAR v. Kan Wai Keung

HCMA735/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 735 OF 2011

(ON APPEAL FROM ESS NO. 3861 OF 2010)

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BETWEEN

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Before : Hon M. Poon J in Court

Date of Hearing : 7 February 2012

Date of Handing Down Reasons for Judgment :10 February 2012

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REASONS FOR JUDGMENT

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1.The applicant pleaded guilty to 2 charges of Offering an Advantage to an agent, contrary to s. 9(2)(a) and 12(1)(i) of POBO, Cap. 210. He was sentenced to 3 months’ and 6 months’ imprisonment in respect of each charge, to run concurrently. He now appeals his sentence.

2.He was the sole proprietor of an engineering company.  Through the introduction of his then business partner, he obtained maintenance contracts from Luk Fook to perform electricity and water supply maintenance works at its outlets.  The applicant and his business partner agreed to pay advantages to the senior project officer in Luk Fook upon his solicitation.  During the period in the first charge, sums of money without record were passed by his business partner to the senior project manager, whilst during the period named in Charge 2, the applicant paid a total of HK$206,610 on a by-weekly basis as bribes.

GROUNDS OF APPEAL AGAINST SENTENCE

(1) the 6 months’ immediate custodial sentence was wrong in principle with regard to the personal background and conduct of the applicant, and so the sentence was too severe in the circumstances; and

(2) even if a custodial sentence is appropriate, the Magistrate erred in placing no or not sufficient weight on the particular circumstances and had he done so, he should have made an order for a community service order or have the custodial sentence suspended.

RESPONDENT’S REPLY

3.Counsel for the Respondent submitted that authorities have shown that wholly exceptional circumstances must be present to justify a departure from the normal immediate custodial sentence in respect of bribery cases.  It was proper for the Magistrate to take a serious view of the matter and find none such existed to justify a either a community service order or a suspended sentence.

MY JUDGMENT

4.Counsel for the applicant, Mr Reading SC, conceded that the overall sentence of 6 months’ imprisonment could not be said to be manifestly excessive in the circumstances of the present case.  All I have to decide is that whether there is circumstances which would justify a departure from the immediate custodial sentence.

5.The Magistrate took into account the applicant’s personal background and his clear record, and that he was not the one who initiated the illicit scheme and he all along played a passive and indirect role throughout, and that it was the applicant who eventually reported to Luk Fook’s management and offered full assistance to the authorities.

6.It was urged before me that the victim suffered no loss and had forgiven the applicant.  Mr Reading SC submitted that the cumulative effect of all these factors warrants a departure from the norm of an immediate custodial sentence, and it would definitely not be in the public interest to require this man who reported this crime himself, to be incarcerated.

7.Whilst it could not be said that the Magistrate had not taken into account all these mitigating factors, he also did not lose sight of the fact that the scheme in the present case lasted for about 2 years during which a total sum of bribe of slightly over HK$200,000 was paid, as opposed to a one off occasion as in SJ v Li Cheung-ming [1999] 1 HKLRD 63.  He was also correct in drawing no distinction between those who offered and those who accepted bribes.

8.The Courts have throughout the years taken a serious view of offences concerning bribery, and only in rare circumstances would an accused spare the clang of the prison gate.  The present case is not one of those.  As Counsel for the Respondent pointed out, all that was advanced by Mr Reading SC today was nothing more than a repetition of what was advanced before the Magistrate.  Furthermore, the fact the matter was turned overt by the applicant was not because of his realization of guilt, but rather his failing to cope any further with the demand for bribes.  Whilst taking into account his assistance to the authorities to testify against others, the overall discount of 50% is already a very generous reduction.

9.The various factors advanced, either alone or in combination, do not justify a non-custodial sentence.  The sentences were neither wrong in principle nor manifestly excessive.  The appeal against sentence is dismissed and I affirm the sentence.

Miss Peggy Lo, SPP of Department of Justice, for HKSAR.

Mr John Reading S.C. leading Miss Sezen Chong, instructed by Messrs Raymond Chan, for the Applicant.