The Queen v. Ho Siu Fai

CACC000133/1989

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Coram: Hon. Silke, V.-P., Peplington & Macdougall, JJ.A.

Date of hearing: 2 June 1989

Date of delivery of judgment: 2 June 1989

Date of handing down of reasons: 9 June1989

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J U D G M E N T

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Macdougall, J.A.:

1. The applicant, a detective police constable attached to the Commercial Crime Bureau, pleaded guilty before His Honour Judge Evans in the District Court to conspiracy to solicit an advantage contrary to common law and section 4(2)(a) of the Prevention of Bribery Ordinance (Cap 201), and to soliciting any advantage contrary to that section. He was sentenced to three years imprisonment on each charge, such Sentences to be served concurrently.

2. The facts which gave rise to the conspiracy charges were that in August 1988 the applicant requested two men named Chan and Nam to approach a director of a company that was under investigation by the CCB and to ask him for $200,000 in exchange for documents that the applicant had in his possession in connexion with that investigation. For their part in this scheme Chan and slam were to receive a half of the $200,000 the conspirators honed to receive from the director.

3. After attempts to contact the director had failed, the proposal was put to the director's brother, but he rejected it and reported the matter to the police.

4. The second charge related to an approach by the applicant through an agent to the editor of Target Newspaper Ltd. On 7th September 1988 the editor received a telephone call from a man cIaiming to have a friend working in the Legal Department who was able to supply a copy of ten pages of counsel's advice on aspects of an investigation into a local bank. The caller offered to sell this information for $20,000.

5. The editor, while pretending to be interested in the offer, contacted the police and a trap was set. Subsequently a woman, who was acting on the instructions of the applicant, was arrested in the act of handing over to a police officer posing as an employee of Target Newspaper Ltd., an envelope containing papers relating to the investigation into the bank.

6. As a consequence of the woman's arrest the police also arrested a man named Li. Both Li and the woman were to have received 50% the profit of the sale of the documents. A meeting was then arranged between Li and the applicant to allow Li to hand to the applicant his share of the transaction. It was at this meeting that the applicant was arrested.

7. In imposing sentence the judge expressed the view that, notwithstanding the applicant's previous good police record and the financial difficulties which he was experiencing in repaying a loan of $270,000 to finance the purchase of a flat, he had abused the trust and confidence reposed in him as a member of an elite squad engaged in a lengthy investigation into a substantial case.

8. The judge decided that he would impose concurrent sentences on the basis that although both offences were separate and distinct, they arose mainly in connexion with the applicant's duties in the same case. He also stated that in view of the pleas of guilty he would allow one third off the sentence be otherwise would have imposed.

9. The applicant seeks leave to appeal against the sentences on the ground that they are "manifestly excessive in that the judge wrongly adopted a starting point of four and one half years and then allowed an appropriate deduction for the plea of guilty."

10. Mr. Alderdice, who appeared on behalf of the applicant, cited to us the unreported case of R. V. Yeung Kwok Fai, criminal appeal 784 of 1980, where this Court took the view that a sentence of 4½ years imprisonment imposed on a senior inspector of police for the offence of conspiracy to pervert the course of justice was not excessive.

11. In that case the defendant, in his capacity as an officer attached to the Complaints against Police Office, had been investigating a complaints by a witness who had alleged that 3 police officers had fabricated evidence against him in respect of a charge of possession of an offensive weapon. The defendant offerred the witness $30,000 not to appear in court to testify against these officers. There was also a hint that trouble might befall the witness' family or that his personal safety might be endangered if he did not cooperate. The witness accepted the offer and failed to attend the trial. However, as the Crown then entered a nolle prosequi instead of offering no evidence, the conspirators though it necessary to go further and suggested to the witness that he should modify his statement so that it no longer incriminated the three officers. On this occasion the witness made a report to the ICAC and the culprits were arrested.

12. Mr. Alderdice submitted that, whereas the actions of the defendant in Yeung were expressly designed to defeat the course of justice and, in fact, succeeded in disrupting the trial of the officers against whom the witness was to give evidence, the information which the applicant in the present case sought to sell could not possibly have affected the outcome of any trial since it was information which, albeit in a different form, would have been made available to the defendants before the trial.

13. He also drew our attenton to the fact that a notional sentence of four and a half years after a contested trial would have been the highest sentence ever passed for an offence against section 4 of the Prevention of Bribery Ordinance. We note that while it is true that the applicant pleaded guilty to two offences, whereas the defendant in Yeung had been charged with only one offence, the actual scope of the latter's activity, like that of the applicant, embraced two separate transactions. This is perhaps the reason why Judge Evans, to whom Yeung had been cited, decided to treat the applicant's two offences as one.

14. We have come to the conclusion that the judge's starting point was too high and that, although the discount of one third allowed for the pleas of guilty was over generous, the resulting overall sentence was so high that warrants our interference.

15. We therefore grant the application for leave to appeal and, treating the hearing of the application as that of the appeal, quash the sentences and substitute therefor on each charge sentences of two years and three months. The sentences are to be served concurrently.

Representation:

Mr. A.A. Bruce Asst. Solicitor General for Crown Prosecutor

Mr. Gary Alderdice assigned by D.L.A. for applicant