Chan Yat Shing v. The Queen
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CACC000130/1981 Head-note. Sentence - corruption - bribes offered to Police Officer - whether sentence should be suspended. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 130 OF 1981 (CASE NO. NK140/81) -----------------
----------------- Coram: Penlington, J. in Court Date of Judgment: 26th February 1981 ----------------- JUDGMENT ----------------- 1. This is an appeal against a sentence of 6 months imprisonment imposed in respect of two offences committed under section 4(a) of the Prevention of Bribery Ordinance. On each of these occasions the Appellant gave the sum of $100 to a Police Constable as a reward for the Constable not taking action against him in relation to his metal-ware shop obstructing the pavement. 2. The Appellant pleaded guilty to both charges and fully co-operated with the ICAC officer involved. He had a clear record and when represented by Counsel on review of sentence it was alleged that he had been previously paying bribes to another person called Lee who had represented himself as a Police Constable because this man had asked for the money. 3. Mr. Ching, who has argued the case for the Appellant with his usual thoroughness and clarity, says that not sufficient weight was given to the mitigating factors and in particular the submission concerning previous payments which had been solicited. He says that the Appellant was corrupted by Lee and the Magistrate should not have dismissed that as being of little significance. He also stresses that the sentence seems harsh when compared with the suspended sentences passed on some driving examiners. 4. The Magistrate felt he had to follow the decison of Huggins J.A. in Lee Shing Keung v. R. C.A. 1308/1977 where a first offender offered $30 to a Police Constable to try and avoid being charged with an offence for which he had been arrested and was sentenced to three months' imprisonment. The Magistrate considered that here the circumstances were more serious as whereas in Lee Shing Keung the Appellant had acted on the spur of the moment in this case it was a pre-meditated and deliberate act. He sais that the 'driving examiners' cases should be considered as outside the line of authority because of very unusual circumstances in one of them had induced the Court of Appeal, clearly reluctantly, to suspend the sentences imposed on others. 5. In Lee Kong Chang and others v. R. C.A. 393 of 1980 the Learned Chief Justice said "my attention has been drawn to several prosecutions for offences of a similar nature relating to the passing of driving tests. In two of those cases driving examiners were involved. Both of them were sentenced to suspended sentences of imprisonment. No doubt there were special circumstances in both cases which persuaded the Magistrates to be more lenient than I would have thought they should normally be. In general, however, where a driving examiner, who is a public servant is convicted of soliciting or accepting bribes in relation to the passing of driving tests, an immediate custodial sentence should be normally imposed; only where there are numerous extenuating circumstances should the sentence be suspended." 6. That, it seems to me, is the principle laid down in the case even though, for reasons peculiar to it, the sentence was in fact suspended. 7. The Appellant further argues that some of the factors considered by the Magistrate are not supported by the summary of facts tendered by the prosecution. That summary is undoubtedly very brief and does not contain matters which would have been very helpful in deciding on the correct sentence. However it was all the Magistrate had and he could not go outside it. 8. Mr. Ching says that the finding that the offences were deliberate and planned. There is a gap in the summary of facts in that there is nothing about how the Appellant arranged to meet the Police Constable on the two occasions when money was paid over. Nevertheless I think all the Magistrate is saying is that in Lee Shing Keung a bribe was offered by a man already arrested and so to speak in the agony of the moment. Here the bribes were paid to avoid a possible charge sometime in future. That seems to be a fact supported by the summary. 9. I respectfully agree with the reasoning of the Magistrate in this case and I do not consider the mitigating circumstances were such as to mkae this such an exceptional case as to derive from the principle laid down in Lee Shing-keung and the other cases. 10. This was a case of a man bribing a police officer in order to more easily conduct his business. If the police officer had solicited the bribe he would undoubtedly have received an immediate custodial sentence. I see no reason why the converse should not apply. I think it should be made very clear to the public that bribing of public servants, and in particular police officers, will almost inevitably result in a prison sentence. 11. I have been given a list of sentences passed recently for related offences. The range seems to be from 3 to 9 months. In the light of that the sentence in this case should, in veiw of the mitigating facts, have been at the lower end of that range. For that reason I will allow the appeal in part and the sentence is reduced to one of 4 months imprisonment.
Representation: Charles Ching, Q.C. instructed by K.M. Lai & Li for Appellant. Mr. Sinclair C. Counsel for Respondent. |