The Queen v. Yung Tak-kee

CAAR000014/1983

[Immediate custodial sentence should be imposed for offence against section 4 of the Prevention of Bribery Ordinance,save in exceptional circumstances.]

BETWEEN

Coram: Roberts, C.J.,Yang & Barker, JJ.A.

Date: 8th November, 1983.

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DECISION

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Roberts, C.J. -

1. This is an application by the Attorney General for a review of the sentences which were passed by a magistrate at Kwun Tong on 15th September, 1983, on the defendant YUNG Tak-kee. The defendant had pleaded guilty before him to two charges of soliciting an advantage, contrary to section 4(2)(a) of the Prevention of Bribery Ordinance (Cap. 201).

2. According to the summary of facts which was agreed by the solicitor representing the defendant at the trial, during November 1982 a woman called TAM Fung-ping, a resident of Macau, was given permission to enter and remain in Hong Kong for a period of seven days.

3. Hoping to become married to a Mr. KO, who was known to the defendant, Miss tam did not return to Macau when her visa expired, but hid at Mr. Ko's home. Ko then sought the assistance of the defendant, who told him that the girl need not return to Macau and that if Ko paid $20,000 to him, the defendant, he would obtain a Hong Kong Identity Card and passport for the girl. Ko agreed, and informed the defendant that he would raise the money for him. About two weeks' later Ko was threatened by the defendant that, if he failed to pay, the defendant would inform the immigration Department and have Miss Tam arrested.

4. Miss Tam remained in Hong Kong and it was not until July 1983 that she was arrested by police officers from Kwun Tong Police Station. On the next day, Ko got in touch with the defendant and asked him if he was responsible for the arrest of Miss Tam. The defendant admitted that he was and said that if he were paid $20,000, he would arrange for Ko to see Miss Tam and that if a larger sum was paid, she could be released.  Ko reported the demand to the I.C.A.C.

5. On the instructions of the I.C.A.C., Ko made several calls to the defendant, which were recorded. In these conversations the defendant sought a sum of $45,000 from Ko, as a reward for arranging for Miss Tam to stay in Hong Kong.  It was then arranged that $25,000 should be paid to the defendant at a post office in Kwun Tong, where I.C.A.C. Offices laid an ambush and arrested the defendant when he arrived to collect the money.

6. The principles which should apply to the sentencing of offenders for corruption offences were set out, for the guidance of magistrates, in High Court case R. v. LAI Yuk-kui⁽¹⁾.We are satisfied that the principles and guidance set out therein are appropriate for this class of case and should be followed by all courts which deal with them.

7. The important principle to be derived from that case is that where an adult is convicted of an offence against section 4 of the Prevention of Bribery Ordinance, an immediate custodial sentence should normally be imposed., whether the offender is a public officer or not.

8. Alternative methods of dealing with an offender, such as a fine, a probation order or a suspended sentence, should only be imposed in exceptional cases where the facts of the case or the circumstances of the offender justify it.

9. The Crown has argued that there are no exceptional circumstances in this case such as would justify the imposition of a suspended sentence.

10. It is true that the defendant pleaded guilty, and that after his arrest he rendered every assistance to the investigating officers. This, however, is a common factor and not, in our opinion an "exceptional circumstance" within the meaning of the quoted passage from Lai Yuk-kui's Case.^(l)

11. The magistrate was influenced by the fact that the defendant, being a police officer, would undoubtedly lose both his position as such, all the financial benefits and professional prospects attached thereto.

12. This, again, is hardly exceptional, since virtually every public servant convicted of an offence under this section, can expect to be dismissed from the public service.

13. The magistrate comments that a case which involves thb actual receipt of an advantage, on account of actual performance of an act, is more serious than an offence where no advantage is received, where no act is performed.

14. While the summary of facts does not allege that money was physically received by the defendant, this was only because of the intervention of the I.C.A.C. officers, and not because, at any stage, in the history of this matter, the defendant changed his mind about his demand for money, or his intention to receive it if it was made available to him. Furthermore, the gravity of the offence lies in the demand, which is in itself sufficient to warrant the recommended sentence, whether or not it is followed by payment to the public officer or action by him.

15. Mr. Sedgwick referred us to a passage in the record of the plea in mitigation put forward by the defendant's solicitor at the trial, which suggests that the first request for $20,000 made by the defendant was a demand for the return of a loan which had been made by him to Ko at an earlier time. The statement of facts, to which I have earlier referred in some detail, makes no reference to this. Indeed, that statement makes it clear that the earlier demand for $20,000 was.for the obtaining:of a Hong Kong Identity Card and Passport.

16. This statement of facts was agreed by the defendant's solicitor when it was presented to the magistrate.

17. Nowhere in his reasons for sentence does the magistrate suggest that he had accepted that part of the plea of mitigation put forward by the defendant's solicitor. Indeed, in view of the agreement by the solicitor for the defendant to the matters contained in the statement of facts, we do not see how he could have done so, unless he had been prepared to take the course of hearing evidence in relation to this part of mitigation; and no application of that nature was made to him.

18. We are, therefore, satisfied the magistrate was wrong in coming to the conclusion that there were "exceptional circumstances" such as would justify the imposition of a suspended sentence of imprisonment.It follows from this that an immediate custodial sentence should have been imposed upon the defendant.

19. The question remains as to what that sentence should be. The magistrate came to the conclusion that the two charges were different stages in the same transaction and that the sentences ought to be concurrent. He then, however, imposed two sentences which were consecutive.We think that he was right in his view that there should be concurrent sentences.

20. Had this not been an application for review we would have thought that concurrent sentences of 18 months' imprisonment on each charge would have been appropriate.

21. Since, however, there is a well-established practice that, on review, this court imposes a somewhat lower sentence than it would have thought correct in other circumstances we think that the proper sentence is one of twelve months' immediate imprisonment on each of the two charges, the sentences to run concurrently.

(1)    [1981] H.K.L.R. 691.

Representation:

K.V. Riordan, S.C.C., for Applicant.

A. Sedgwick (D.L.A.) for Respondent.