HKSAR v. Ng Ka Ki Robert and Others

CACC 225/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 225 OF 2012

(ON APPEAL FROM DCCC NOS. 810, 813 & 934 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.Ng Ka Ki Robert (D1), Lam Wai Chee Alan (D6) and Tang Kang Chung Billy (D8) were three of the defendants who appeared before District Court Judge Yau (the judge) on an indictment consisting of 10 charges.  The charges arose out of dishonest applications to become members of the Hong Kong Jockey Club (HKJC).

2.D1 was charged with the 1^st and the 4^th counts of agent accepting an advantage, and the 2^nd, the 5^th and the 10^th counts of conspiracy to defraud.

3.D6 was charged with the 3^rd count of aiding and abetting agent to accept an advantage and D8 was charged with the 6^th, the 7^th and the 8^th counts of dealing with property known or believed to represent proceeds of an indictable offence (“money laundering”).

4.D1 pleaded guilty to the 1^st and the 4^th counts and the other counts against him were left on court file.

5.D6 and D8 pleaded not guilty.  On 8 May 2012, the judge convicted them as charged.

6.On both the 1^st and the 4^th counts against D1, the judge adopted a starting point of 2½ years’ imprisonment.  The judge reduced the starting point by one-third on account of the guilty pleas to 1 year and 8 months.  The judge ordered 10 months of the sentence on the 4^th count to run consecutively to the 1 year and 8 month-sentence on the 1^st count, making a total sentence of 2 years and 6 months’ imprisonment.

7.On the 3^rd count, the judge sentenced D6 to 2 years’ imprisonment and on the 6^th, 7^th and 8^th counts, the judge sentenced D8 to terms ranging from 1 year and 6 months to 2 years and 9 months with part of the terms to run consecutively, making a total sentence of 3 years and 6 months’ imprisonment.

8.D1 sought leave to appeal against sentence.  D6 and D8 sought leave to appeal against both conviction and sentence.  By a Notice of Abandonment dated 30 August 2012, D6 abandoned his application for leave to appeal against conviction.

9.We were therefore concerned with the application by D8 for leave to appeal against conviction and the applications by D1, D6 and D8 for leave to appeal against sentence.

10.At the end of the hearing, we dismissed D8’s application for leave to appeal against conviction.  We granted leave to D6 to appeal against sentence.  Treating his application as the appeal proper, we allowed D6’s appeal against sentence and reduced his sentence from 2 years to 15 months’ imprisonment.

11.We reserved our decision on the applications by D1 and D8 for leave to appeal against sentence and we indicated that we would hand down our reasons in connection with D6’s appeal against sentence and D8’s appeal against conviction.

12.These are our reasons for reducing D6’s sentence, dismissing D8’s application for leave to appeal against conviction and our decisions on the applications by D1 and D8 for leave to appeal against sentence. 

Background Facts in relation to the Charges against D1 and D6

13.HKJC has different types of members, including voting members, full members and racing members.  To become a racing member, an applicant has to submit an application, proposed by a voting member, seconded by another voting member and supported by three other HKJC members.

14.To become a full member, an applicant who is already a racing member has to submit an application for full membership proposed by a voting member.

15.HKJC members who sponsor an application for HKJC membership should be well-acquainted with the applicant and be able to provide reference of the applicant’s good character.  They have to state on the application form that they have personally known the applicant, the duration and nature thereof, and the reasons why they regard the applicant suitable to become a HKJC member.

16.HKJC does not allow its members to solicit or accept any advantage in return for sponsoring membership applications.  The sponsors are required to declare on the application form that they have not received any advantage in sponsoring the application.

17.HKJC relies on the sponsors’ statements on the application form to assess the applicant’s suitability to become its member. If its members wilfully provide false statements in the membership application forms, HKJC considers itself to have been misled and deceived.

18.In early 2010, ICAC conducted an undercover operation in connection with applications for HKJC membership with the use of two undercover officers (Michael and Daniel).  Michael became acquainted with D8 at Shatin racecourse and through him got to know D1 who was a wine supplier and they had contacts in the subsequent few months.  D8 arranged Michael and Daniel to meet D1 at his office in Delta House in Shatin.

19.On 14 June 2010 at D1’s office, Michael indicated to D1 that his “boss” (Daniel) was interested to become a HKJC member.  D1 explained the procedures to Michael and indicated that the deal required at least $200,000. D1 said he could arrange two voting members and three other members to sign Daniel’s application form and indicated that $250,000 would be required.

20.There was a subsequent meeting between D1 and Daniel who agreed to pay D1 $250,000 and D1 said he would find five HKJC members to support his application to become a HKJC racing member.

21.There was a further meeting on 26 July 2010 when D6 joined the meeting half-way.  Daniel told D1 that he had brought along $250,000 and there was a discussion about progressing Daniel’s application with the help of two “Westerners”.  D6 was introduced by D1 as Alan and he was carrying an envelope.  D1 asked Daniel to give the $250,000 to D6 who then gave Daniel the envelope in return.  Daniel then took out a brown envelope containing the money and said, “Here is $250,000, you count it.”

22.D6 was about to open the envelope containing the money when D1 said, “It’s alright, you’ll put it down.” D6 then placed the envelope containing the money on D1’s desk.

23.The envelope given to Daniel by D6 contained a HKJC application form with a Mr Mackie as the proposer.  D1 said that he would arrange Daniel to meet the “Westerners” after he had filled in the application form.  D1 then instructed D6 to exchange name cards with Daniel for further contacts and they did.  D1 told Daniel to contact D6 if he had any queries concerning the application form.

24.On 30 July 2010, Daniel contacted D6 and D6 called back saying that he had fixed a meeting with the “Westerner” on 3 August 2010 at 10.30 am at D6’s office.

25.On 3 August 2010, Daniel went to D6’s office at Room 1207-10, Delta House in Shatin, taking with him the membership application form.  He met D6 who introduced a Mr Mackie to him.  They discussed about Daniel’s membership application and Mr Mackie asked Daniel for his personal particulars in the presence of D6.

26.In the subsequent three months, Daniel had many telephone conversations and meetings with Mr Mackie concerning his membership application.

27.On 18 October 2010, D1 arranged Daniel to meet a Mr Sani for the purpose of enlisting Mr Sani’s support for his membership application.

28.On 19 October 2010, Daniel met D1 at the lobby of Luk Kwok Hotel and they then met D6 and another man outside.  The four of them drove to Wyndham Street where D1 and Daniel alighted.  They then went to the Shanghai Fraternity Association to wait for Mr Sani who subsequently signed Daniel’s application form as the “seconder”.

29.Daniel presented his application form, proposed and seconded respectively by Mr Mackie and Mr Sani who were both voting members.  They stated in the application form that they had known Daniel for some time and they also declared that they had received no advantage in supporting Daniel’s application.

30.D1, a Mr Tong and a Mr Ho were HKJC full members and they supported Daniel’s application to be a HKJC member.  They stated that they had known Daniel for a long time and declared that they had not received any advantage for supporting his application.

31.In September 2009, D1 repeated the same exercise by accepting $300,000 from Mr Lam Wai-ming (Lam) for assisting him to become a racing member of HKJC.  He arranged Mr Mackie as the proposer, Mr Stanley Lawrence Freedman as the “seconder” and three other members (Mr Tong, Mr Cheung and Mr Ho) to support Lam’s application in which all the supporters lied about their relationship with Lam.  D1 also coached Lam how to answer questions during the HKJC membership application interview.

Evidence on the Three Charges against D8

32.Mr Chan Yuet Ming (the father), a successful taxi operator owning over 100 taxies, and his son Chan Chi Chung (the son) gave evidence for the prosecution under immunity.

33.The father said he came to know a Billy Tang in 2009 when a fellow trader Mr Yung took him to the Shatin Racecourse and Billy Tang asked him if he or his son would be interested in becoming a HKJC member.  Billy Tang also told the father that to become a member, his son had to be of good character and that $350,000 was required to be paid to HKJC personnel for their support.

34.The father checked with his friends and found out that the amount was about right.  The father then mentioned the matter to the son and subsequently Billy Tang telephoned him on 6722-3291 and raised the question again.  After a few calls from Billy Tang, the father asked Billy Tang to help the son to become a HKJC member and Billy Tang told him to prepare cash of $350,000.

35.The father took the cash from the taxi rentals and told Billy Tang that the money was ready.  Billy Tang went to the father’s office on Whitfield Road to collect the $350,000.  Billy Tang did not issue a receipt but told the father to trust him and that he would give the application form to him soon.

36.Two to three days later Billy Tang called the father, saying that the application form had been sent to his office.  The father subsequently found an envelope with a form bearing the HKJC badge and he placed it on the desk of the son.

37.The son said in early January 2009, he was introduced to a Billy Tang by his father and subsequently found an HKJC membership application form with the name of a Mr Freedman and the number F0333 printed on it.

38.In mid January 2009, Billy Tang telephoned him and he told Billy Tang that he did not know how to fill in certain particulars in the form.  Billy Tang told him to just fill in the form casually and the most important thing was to put down his personal particulars.  Billy Tang also gave the son the address of Mr Freedman and told him to go to see him at a specific time.  At the meeting with Mr Freedman, the son exchanged with Mr Freedman their personal background before leaving the application form behind.

39.Later Mr Freedman telephoned, asking the son to go to his place to take back the application form which the son did.  He noticed that part of the proposer on the form had been filled in.

40.In mid February 2009, Billy Tang telephoned the son, saying that he had made an appointment for him to see a Mr To and that he should go to an address with the application form.  The son did accordingly and met Mr To for about 10 minutes when they mentioned each other’s background.  Mr To did not complete the son’s form on that occasion.

41.The son then telephoned Billy Tang about the meeting and he said one of the telephone numbers used by Billy Tang was 6722-3291.

42.According to the son, around late February 2009, Billy Tang telephoned him saying that an appointment for him to meet Mr To in the coffee shop of Eaton Hotel had been arranged.  The son duly went to the meeting and saw Mr To on 2 March 2009.  Mr To signed the application form supporting his application.  Mr To also told the son to see a Dr Ho for him to sign his application form and the son met Dr Ho in his clinic on 10 March 2009.  They talked briefly and Dr Ho signed his application form.

43.The son said what Mr Freedman, Mr To and Dr Ho said about him in the application form was untrue.  The other supporting members, a Mr Tong and a Mr Kwong were, however, known to him.

44.Subsequently he called Billy Tang who told him to fill in the other particulars before he submitted the form to HKJC on 13 March 2009.  After about 1½ years, he was informed that his application had been successful and he then paid $60,000 to become a racing member of HKJC.

45.At the end of 2009 or early 2010, Mr Yung took the father to the Shatin Racecourse again and met Billy Tang.  Billy Tang asked the father if he himself wanted to be a member.  The father then complained that the son, as a racing member, was not entitled to enjoy any HKJC facilities and Billy Tang asked if he wanted his son to be a full member.  Billy Tang indicated that it would cost $1 million and the father said he was not interested.

46.Later Billy Tang called the father many times and eventually agreed to reduce the cost to $900,000.  The father asked if his son could surely become a full member, Billy Tang said no as it was difficult to get HKJC people to sign their names and that he was not the only person to take the money.

47.Later Billy Tang telephoned and said he could secure the full membership for the son in 2010 and the father agreed to pay the $900,000 by two instalments.  The father again took cash from the taxi rentals before telephoning Billy Tang who came on the following day to his office to get the $450,000.

48.Later Billy Tang called both the father and the son saying that arrangement had been made for the father to meet the sponsors at the country club.  In mid February 2010, the father, the son and Yung went to the Country Club where they met D1 and Mr Mackie.  They were told that Mr Mackie would sponsor the son’s application for full membership.

49.In July 2010, Billy Tang told the father that the application form was ready and that he should have the other $450,000 ready.  The next day, Billy Tang came to the father’s office.  He took an envelope containing the $450,000 cash and left an application form in envelope.

50.In late July 2010, Billy Tang telephoned the son saying that he had arranged for him and Yung to meet Mr Mackie and that he should bring along the application form.  The son and Yung eventually went to an office in Delta House in Shatin where they saw D1 and Mr Mackie who told the son to leave the application from behind and to return to his office in a week’s time.

51.On or about 20 August 2010, the son went to Mr Mackie’s office to retrieve the application form.  Mr Mackie had filled in and signed the form the contents of which, accordingly, were untrue.  The son then submitted the application form to HKJC.

52.The father made a dock-identification and he identified D8 as Billy Tang.

D8’s Case

53.D8 did not give or call any evidence.  His position was that the prosecution evidence did not support the charges against him.

The Judge’s Findings on the 6th, 7th and 8th Counts against D8

54.The judge, having carefully analysed the evidence, concluded that the father and the son were both honest and reliable. The judge accepted their evidence.

55.The judge accepted that the father had correctly identified D8 as Billy Tang, having met him on many occasions.  The judge concluded that the Billy Tang whom the father and the son had dealt with was D8.

56.The judge emphasized that the father and the son were dealing with Billy Tang on the same matter and that one of the telephone numbers they used to contact Billy Tang was 6722-3291.  The judge further pointed out that Billy Tang had separately informed the father and the son to meet D1 and Mr Mackie at the Country Club.

57.The judge found that the three sums of money taken by D8 from the father in cash were illegal advantage paid to members of HKJC as inducement to or reward for them to support the son’s application to be a HKJC member.

58.The judge found that D8 must know that the money was proceeds of an indictable offence and that he had dealt with them with such knowledge.  The judge therefore convicted D8 of 6^th, 7^th and 8^th charges.

D8’s Grounds of Appeal against Conviction

59.D8 only stated in his application that he was aggrieved at the verdict of conviction and sentence, he did not elaborate.

60.In a written document submitted to the court, D8 stated that there was insufficient evidence to draw the irresistible inference that he had committed the offences.  He emphasized that both the father and the son were accomplice witnesses and they gave evidence under immunity.  He suggested that when they gave evidence, they were trying to protect themselves and therefore their evidence was questionable.

61.D8 also pointed out that when the father gave his statements to the ICAC, he was under a lot of stress when he was sick and was under the influence of alcohol.  D8 said the father even had to sleep on the floor and he suggested that the father’s statements, given in such circumstances, could not be accurate.  D8 also suggested that the contents of statements of the father and the son were different from what they said in their evidence under cross-examination.  D8’s position was that the father had wrongly identified him.

Discussion

62.On the evidence accepted by the judge, Billy Tang acted as a middleman between the son who wanted to become a member of HKJC and HKJC members who were in a position to support the son’s application, first as a racing member and then as a full member.  Those HKJC members were prepared to lie about their relationship with the son in his application form and it was not difficult to infer that some of those members accepted illegal advantage in return for the support they gave to the son’s application.

63.When Billy Tang asked the father for the three sums totalling $1.25 million, he made it clear that those sums were required to obtain the signatures of the sponsors.  On the evidence, there could be no other reason for the payment of those sums to Billy Tang.

64.The father had met Billy Tang on a number of occasions over a period of time.  The suggestion that the father had wrongly identified D8 as Billy Tang was not convincing at all.  There was other supporting evidence to show that D8 was indeed Billy Tang who had dealt with the father and the son.

65.The judge was right in concluding clearly as he did that when Billy Tang obtained the three sums of $350,000, $450,000 and $450,000, the subject matters of the 6^th to the 8^th counts respectively, he must know that those sums were proceeds of an indictable offence.

66.On the prosecution evidence and in the absence of any evidence from D8 to challenge, undermine or explain the prosecution evidence, the judge was entitled to find that D8 was Billy Tang.  That being the case, D8 must have dealt with three sums of money knowing that they represented proceeds of an indictable offence.  The evidence on the 6th to 8th counts against D8 was overwhelming.

67.We did not find the conviction against D8 on the 6^th to the 8^th counts in any way unsafe or unsatisfactory.  We therefore dismissed D8’s application for leave to appeal against conviction.

Sentence

The Judge’s Reasons

68.In his reasons for sentence, the judge set out the background in relation to the 1^st and the 4^th counts against D1, the 3^rd count against D6 and the 6^th to the 8^th counts against D8.

69.The judge had also detailed the backgrounds of each of D1, D6 and D8.

70.The judge mentioned the adverse impact of the ICAC investigation on D1’s family and his business.  The judge detailed the mitigation of each of D1, D6 and D8.

71.The judge took the view that a deterrent sentence was called for because the offences in question were serious offences and were well-planned.

72.The judge considered a 2½ starting point appropriate for the 1^st and the 4^th counts against D1.  The judge said at para 56 of his reasons for sentence:

“The offences were well planned and various members of HKJC were engaged to sponsor the membership applications and D6 also assisted in the illegal deal. Having considered the whole circumstances of the case, including the charitable work done by D1 and the substantial losses in his business as well as the relevant cases cited, the court adopts a starting point of 2½ years imprisonment for each of charges 1 and 4. In an offence of this nature the clear record of D1 does not constitute a valid mitigation factor. The only other mitigation D1 has is his plea of guilty.”

73.The judge reduced the starting point by one-third to 1 year and 8 months on account of the guilty plea.

74.The judge took the view that the 1^st and the 4^th counts were separate and distinct and should therefore attract a consecutive sentence, but on totality principle the judge ordered only 10 months of the sentence on the 4^th count to run consecutively to the sentence on the 1^st count, making a total sentence of 2 years and 6 months.

75.The judge accepted that D6 was only a secondary party as he was an employee of D1.  The judge further accepted that D6 played a lesser role, but took the view that he was an important cog in the commission of the offence.  The judge considered a 2-year sentence appropriate for D6.

76.As for D8, the judge took the view that he had instigated the corruption in question.  The judge took into account the amount involved in the three charges and other relevant factors.  The judge considered starting points of 1½ years suitable for the 6^th count, and 2 years and 9 months suitable for both the 7^th and the 8^th counts.

77.The judge took the view that there was no other mitigating factor, but nevertheless ordered 9 months of the sentence on the 6^th count to run consecutively to the 2 years and 9 months concurrent sentence on the 7^th and the 8^th counts, making a total sentence on D8 of 3½ years’ imprisonment.

Sentence on other Defendants

78.It was perhaps worth mentioning that Mr Freedman, who was convicted of two charges of conspiracy to defraud in relation to the applications by the son and Lam to become racing members of HKJC, was sentenced to concurrent terms of 9 months’ imprisonment suspended for 2 years.

79.Mr Freedman, aged 84, had been in very poor health for many years.  In 1998, he suffered from colon cancer and gallstones resected and in 2000 he was diagnosed with ischaemic heart disease with bypass surgery.  In 2001, he suffered from chronic obstructive lung disease.  In 2005 he was found to be suffering from low grade urinary bladder infection and underwent surgery in 2005 and 2008 when he also suffered from inguinal hernia which was repaired.

80.Mr Freedman had difficulty swallowing solid food and had chronic nasal drip which caused gagging.  He also suffered from chronic respiratory and coronary disease which restricted his mobility, walking and outdoor access.  He also suffered from chronic insomnia and chronic prostatism.  When Mr Freedman appeared in court, he had to use a wheelchair to aid his mobility and to avoid shortness of breath.  Medical support had to be on standby in case medical attention was required.

81.There was no evidence that Mr Freedman had derived any financial benefit from the fraudulent scheme.

82.Mr To, a full member of HKJC who supported the son’s application to become a racing member was convicted of a charge of conspiracy to defraud.  He was sentenced to 6 months imprisonment suspended for 2 years.

83.Mr To, aged 64, had a profound hearing loss in his right ear and grossly severe loss in his left ear.  Such condition had caused him to age prematurely and had affected his ability to deal with the outside world.  He became isolated and lonely.  As a musician, Mr To had contributed significantly to the Chinese Music Group of the Hong Kong Blind Union and other organizations.  The allegation that Mr To had solicited and accepted money had not been proved.

D1’s grounds of appeal against sentence

84.Mr Michael Delaney for D1 suggested that the judge had failed to give sufficient weight to the following mitigating factors:

1.  D1 did not initiate the offences, but was induced to commit them;

2.  D1’s breach of trust was minimal because he was not a fiduciary of HKJC and there was no financial loss to HKJC; that D1 was not a voting member; that the amount of money was not significant to the two applicants who wanted to become members of HKJC; that both applicants were eminently suitable; that the only factual misrepresentations was the length of time the applicants had known the supporting members; and that D1 was not the proposer, the seconder or the sponsor in Lam’s application; and that both applicants were suitable to be members of HKJC.

3.  There was no financial loss to HKJC and no clear evidence of financial benefit to D1;

4.  The exceptional personal circumstances and positive good character of D1; and

5.  The absence of any impact on Hong Kong’s reputation as a commercial centre or its legal and political systems.

85.Mr Delaney argued that the judge had failed to distinguish or give adequate consideration to HKSAR v Hung John Terence [2009] HKDC 1472 in which a starting point of 2½ years was considered appropriate for a voting member of HKJC to solicit $200,000, and accept $250,000 and $100,000, and another $100,000 from a middleman.

86.Mr Delaney emphasized that D1 did not initiate the offences; that he had a good character; and he was only a full member and not a voting member of HKJC.

87.Mr Delaney suggested that this was just a case of an honest and hardworking person who succumbed to temptation and that his positive good character should have attracted a further discount in addition to the one-third discount for his guilty plea.

88.Mr Delaney repeatedly emphasized the charitable deeds of D1 and the impact of the investigation and the conviction on his family and his business, including substantial financial loss.

D6’s grounds of appeal against sentence

89.In his application, D6 said the sentence was too severe.  He emphasized that he was just D1’s employee and was acting under his instruction.  He claimed that he had played a small part in the fraudulent scheme.  He asked to be given a chance.

D8’s grounds of appeal against sentence

90.D8 also said in his application that his sentence was too severe.  He pointed out the impact of the sentence on him and his family.  He said he was remorseful and asked the court to give him a chance to enable him to shoulder better his responsibility as a father.

Discussion

91.Let us say, first of all, that we were mindful of the fact that Mr Freedman and Mr To had both received only suspended sentences.  Judge Browne in the District Court, in sentencing Mr Freedman and Mr To, took the view that custodial sentences were required, but because of their special personal circumstances, he had decided to suspend the sentences.

92.We were not persuaded that the sentences on Mr Freedman and Mr To should be any guideline for sentencing D1, D6 or D8.  The sentences on Mr Freedman and Mr To were exceptionally lenient and were imposed because of the special circumstances identified by Judge Browne.

93.We took the view that the exceptionally lenient sentences imposed on Mr Freedman and Mr To should have no bearing on the sentences to be imposed on D1, D6 and D8.

94.Corruption offences are very serious offences and except in the rarest of cases, sentences other than immediate custodial sentences are wrong in principle.  It must be emphasized that corruption strikes at the very fabric of our society and if unchecked, it will mushroom like cancer cells to overwhelm the values that our society treasures.

95.Certain HKJC members had been entrusted with the honour and privileges of selecting its members and if such trust is abused, it reflects badly on the integrity of those members and the reputation of HKJC as well as its other members.

96.Mr Delaney emphasized that D1 was not a voting member and was therefore not entitled to propose or second anyone to be a member of HKJC.  We were not persuaded that this would have made him less culpable than a voting member who proposed or seconded a candidate as a HKJC member for a bribe.

97.D1 was not a voting member, but he was able to line up voting members to propose and second applicants to be HKJC members.  He enlisted the help of other full members of HKJC to support the applications. To that extent, D1 was corrupting the voting members as well as other full members into agreeing to take part in the illicit scheme.  D1, over a period of just over one year, organized and caused 3 voting members and 3 other HKJC members to make false representations to deceive HKJC.

98.Whilst Michael and Daniel were undercover ICAC officers, D1, on learning that Daniel wished to become a HKJC member, solicited $250,000 from Michael and then positively and actively involved himself in arranging Daniel to be a HKJC member.  D1 made use of his employee – D6 to assist him in the corrupt dealing.  The fact that he was only charged with agent accepting an advantage and not soliciting an advantage hardly made any difference to sentence in the light of the evidence against him.

99.D1 had played a very important and significant role in the corrupt dealings in question.  It was also fair to say that without people like D1, there may not be the link between the corrupted voting members of HKJC and those who wish to buy their way to become members of HKJC.  We were not persuaded that D1’s culpability was less than that of a voting member.

100.We were surprised at Mr Delaney’s contention, as a mitigating factor, that there was no clear evidence of financial benefit for D1.  The undisputed evidence suggested that D1 had obtained $250,000 from Daniel and $300,000 from Lam.

101.The amounts received by D1 were not insignificant and only D1 could have accounted for them and he did not.  In any event, it will be naïve to suggest that D1 did not derive or intend to derive financial benefit from the corrupt dealings in question.  D1 told the probation officer that he committed the offences because of “momentary greediness”.  As to the true extent of his financial benefit, only he could say and we were simply not persuaded that this could be a reason for reducing D1’s sentence at all.

102.The one-third discount is usually to be regarded as the high watermark of the discount given to a defendant who pleads guilty in good time. (See SJ v Lee Chun Ho Jeef [2009] 6 HKC 471 at 477)

103.In exceptional circumstances, a sentencing judge may, in the exercise of his discretion, give a further discount because of the defendant’s positive good character and/or exceptional contribution to society.  The judge in sentencing Hung John Terence (supra) gave him a 3-month discount of sentence “because he had contributed a lot in promoting the sports activities in Hong Kong and he was a Justice of the Peace as well as a recipient of a Silver Bauhinia Medal awarded by the HKSAR Government”.

104.We do not wish to compare D1’s background with that of Hung John Terence (supra).  The judge was fully aware of D1’s good character and his contribution to society by way of charitable works as well as the business losses he suffered as a result of the offences set out in paragraphs 41 to 45 of his reasons for sentence.

105.The judge appeared to have taken the view that those matters were mitigating factors, but he did not explicitly state the extent to which those mitigating factors should affect the sentence.

106.Whilst we were firmly of the view that the corrupt practice of voting members accepting an advantage to support applications to be members of HKJC must be deterred and anyone who takes part in such corrupt practice must expect a substantial term of imprisonment irrespective of his status or personal circumstances, we were persuaded that the judge should have given D1 a sentence discount because of his positive good character and the charitable works that he had done over the past years.

107.We were persuaded that it was fair to reduce D1’s overall sentence by 6 months to 2 years, which would be sufficient to reflect his culpability.  We would not alter the individual sentences on the 1^st and the 4^th counts, but order that only 4 months on the 4^th count to run consecutively to the 1 year and 8 months’ sentence on the 1^st count.  The total sentence on D1 would be reduced from 2 years and 6 months to 2 years’ imprisonment.

108.Having said what we have said, we were troubled by D6’s case.  D6, at the material time, was D1’s employee and had to take instruction from him.  There was no indication that he was aware of the details of the offence other than taking an envelope to Daniel and then receiving the $250,000 from him, clearly acting on D1’s direction.  The money of course immediately went to D1 and there was no evidence or suggestion that D6 himself had obtained any financial benefit.

109.D6 had a clear record.  We were satisfied that the 2-year sentence imposed on D6 was manifestly excessive and that 15 months’ imprisonment would be adequate to reflect his culpability.

110.D8 had played a crucial and important role in the corrupt dealings in question.  He actively and directly (or through the father) persuaded the son to become firstly a racing member and then a full member of HKJC.  D8 was a professional broker, linking up corrupt HKJC members with people who aspired to become HKJC members and in so doing he managed to obtain a total of $1.25 million.

111.Not that we had any sympathy for the father or the son, it was likely that the son may have been expelled from HKJC and that the father would not be able to recover the $1.25 million or any part thereof.

112.D8 most probably had to share the money with others, but the extent of his own financial benefit was not known.  In “money laundering” cases, the important factor is the amount of the money “laundered” and not the financial gain of the defendant.

113.D8 had taken an important role in the underlying offences that generated the money that he had “laundered” and he was clearly aware of the nature of the underlying offences as well as the circumstances in which those underlying offences were committed.

114.On the other hand, it was fair to say that the underlying offences were not exceptionally serious offences such as drug trafficking or even book-making.  We also took into consideration that whilst there were three charges against D8, those charges arose out of the same series of transactions involving the same people.

115.We were persuaded that the overall sentence of 3 years and 6 months was manifestly excessive and that 3 years would be adequate to reflect D8’s culpability.

116.We would not alter the individual sentences on the 6^th to the 8^th counts, but order that only 3 months on the 6^th count to run consecutively to the concurrent sentences of 2 years and 9 months on the 7^th and 8^th counts, making a total sentence of 3 years on D8.

Conclusion

117.We dismissed D8’s application for leave to appeal against conviction. 

118.We reduced D6’s sentence on the 3^rd count to 15 months’ imprisonment.

119.We grant leave to D1 and D8 to appeal against sentence. Treating their applications as the appeal proper, we allow their appeals against sentence to the extent indicated above.

Ms Polly Wan, SADPP of the Department of Justice, for the Respondent

Mr Michael Delaney, instructed by Y T Szeto & Co, for the 1^st Applicant (D1) (Re: Sentence)

The 2^nd Applicant (D6) appeared in person (Re: Sentence)

The 3^rd Applicant (D8) appeared in person (Re: Conviction and Sentence)