HKSAR v. Leung Yau Wing, Victor

CACC 444/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 444 OF 2013

(ON APPEAL FROM DCCC NO. 486 OF 2013)

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BETWEEN

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1.The applicant was convicted on his own plea in the District Court before His Honour Judge Browne of two charges, namely, being an agent soliciting an advantage and failing to surrender to custody. On 17 December 2013, he was sentenced to 3 years imprisonment on the first charge and one month imprisonment for the second charge and the sentences were ordered to run consecutively. The applicant seeks leave to appeal against the sentences.

2.The applicant was an employee of a company called Greater Lucky (HK) Company Limited (“Greater Lucky”). In 2012, Greater Lucky succeeded in tendering for the management of the Lion Rock Tunnel and the Kai Tak Tunnel. The contract price was HK$406 million.  Previously, the tunnels were managed by a company called Serco Group (HK) Limited (“Serco”), who was unsuccessful in bidding for the tender.

3.On 10 July 2012, the applicant approached a Mr Kwok Mun-keong, who was Serco’s employee, and solicited from Serco an advantage equivalent to 1.5% of the contract sum (i.e. HK$ 6,090,000) as a reward to help prevent Greater Lucky from signing the contract, in which case Serco would have a chance to get the contract.  During the same meeting, the applicant also told Kwok that he had not been on good terms with the management of Greater Lucky and he was in possession of prejudicial information that suggested Greater Lucky stood to lose tens or millions of dollars in carrying out the contract.

4.After the meeting, the applicant followed up with several text messages to Kwok.  Eventually Serco refused the applicant’s offer.  Greater Lucky signed the contract as scheduled.

5.The applicant was later arrested by officers of the ICAC. In a cautioned interview, he admitted Greater Lucky had not authorised him to solicit the advantage from Kwok.

6.The applicant was granted bail to appear before the District Court on 12 August 2013 for trial.  He failed to appear and a warrant of arrest was issued.  On 21 October 2013, the applicant was re-arrested.

7.The applicant is aged 67. He has a clear record. He is a university graduate and was pursuing a PhD degree with University of Melbourne. He also holds a number of professional qualifications in the area of logistics and transport and tunnel operations.  He had been actively involved in a number of charitable and sporting organizations.

8.In mitigation, it was said he was on bad terms with the senior management of Greater Lucky as a result of his salary being reduced by more than half.  It was also said that he in fact did not have any prejudicial materials of Greater Lucky that could cause it to give up the contract for the management of the tunnels. It was also explained that the applicant had failed to raise sufficient money to meet the legal fees and in panic he absconded. He later took the initiative to contact the ICAC for his surrender.

9.The Judge considered the solicitation was not made casually or at the spur of the moment. He took into account the fact that very substantial amount of money was solicited and that there was significant breach of trust on the applicant’s part.  He adopted a starting point of 4½ years and reduced it by one-third to reflect the applicant’s guilty plea, and sentenced the applicant to three years’ imprisonment on the first charge. On the second charge, he imposed a consecutive sentence of one month’s imprisonment.

10.The applicant put forward the following matters in support of his application for leave to appeal:

(1) The solicitor who represented him in the District Court had reported to the Director of Legal Aid that his sentence was manifestly excessive.

(2) Until this case, he was a law abiding citizen, a man of integrity and was greatly respected by people in the tunnel operation sector. He has been involved in voluntary work and making contributions to the society.

(3) Since graduating, he had been employed in various senior managerial positions. In the course of his work, he never succumbed to the many temptations and had maintained a high professional standard. These convictions will irreparably mar his reputation and ruin all his years of hard work. This in itself is a grave punishment.

(4) He committed the case out of foolishness.

(5) He has experienced difficulties adapting to life in prison as a result of which both his physical and psychological health has deteriorated.

(6) The case has caused grave financial loss to him and his family. He has lost his job, incurred $100,000 legal costs and his $50,000 bail money had been forfeited.  With his age and criminal record, he will have difficulty finding a job on discharge from prison.

(7) As a result of the convictions and the imprisonment, he will not be able to pursue his PhD study.

(8) He will also not be able to emigrate to Australia to join his family members.       

11.The applicant submitted two letters written respectively by the chaplain of the Correctional Services Department and his youngest son urging leniency on the applicant’s behalf.

12.I note that in HKSAR v Pau Chin Hung Andy [2014] 1 HKLRD 600, a starting point of 4 years was adopted for two counts of accepting advantage as agent on a defendant who had accepted a total of about HK$1.1 million. And in Secretary for Justice v. Wong Hong Leung [2010] 1 HKLRD 226, a starting point of 5½ years was considered appropriate for the defendant who was convicted of four charges of offering advantages to agent that took place over a period of almost six years and involving total bribes of about HK$10 million.       

13.Mr Cheng submitted that there are aggravating factors in this case, namely, the amount solicited by the applicant was very substantial; public interest was involved in that the contract in question related to the management of two major tunnels; it was a case of serious breach of trust; and it was not a momentary lapse.

14.I have doubts about the public interest point because Serco was previously responsible for the management of the tunnels and had completed the contract. The respondent accepted there was no evidence that its performance was unsatisfactory. The respondent also indicated there was no evidence to contradict the applicant’s case in mitigation that there were in fact no adverse materials or data about Greater Lucky.         

15.I also note that the applicant was 66 when he committed the offences. It is to his credit that he has a clear record (see Secretary for Justice v. Wong Hong Leung, at para.25). He can be regarded as a person of positive good character. The Judge was aware of this but he had not indicated whether he accepted this as mitigating factor, and he had not given any reduction on account of this.

16.I am of the view that two aspects of the sentence on the first charge require further submissions and consideration: (1) whether the starting point of 4½ years is manifestly excessive; and (2) whether sentence should be further reduced on account of the applicant’s clear record and positive good character.  

17.Accordingly, I direct that the application be listed for hearing before a court of two or three judges.

Mr Raymond Cheng, Senior Public Prosecutor, of the Department of Justice, for the respondent.

The applicant, unrepresented, appeared in person.