ATTORNEY GENERAL v. TSANG WAI KWONG

CAAR000002/1985

IN THE COURT OF APPEAL

Application for Review 1985 No. 2

BETWEEN

ATTORNEY-GENERAL   AND   TSANG WAI-KWONG

Coram: Li, V.-P., Barker, J.A. & Penlington, J.

Date of Hearing: 26 April 1985

Date of Judgment: 26 April 1985

 

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JUDGMENT

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Li, V.-P.:

1. This is an application for review of sentence. The respondent was convicted before a magistrate of two offences under section 4 of the Prevention of Bribery Ordinance. For each charge he was sentenced to 4 months imprisonment to run concurrently. The Attorney General, finding the sentences manifestly inadequate, applies to this Court for a review.

2. The facts giving rise to the offence may be shortly stated. The respondent was an Assistant Prison Officer Class II and attached to the Pik Uk Prison. Some time last October, a prisoner Yeung was convicted of robbery and was sentenced to 5 years imprisonment. He was put in the Pik Uk Prison. Before that Yeung had been remanded in Pik Uk pending trial and became acquainted with the respondent.

3. On the 19th of October, while in prison, Yeung and. the defendant happened to discuss their financial matters. When the respondent disclosed that he was in debt to the sum of some $2,000, Yeung saw a way to find an easier life in prison. He asked the respondent to contact his mother who might help the respondent. In return the respondent was to bring Yeung some items of luxury to alleviate the strict prison life. Yeung then provided him with a "code-name" and the way to contact Yeung's mother. The respondent did so. Initially, there was a sum of $20 given to the respondent which he used to buy things like chocolate and soap and conveyed to the prisoner Yeung. Subsequently, meetings were arranged when the mother on one occasion gave the respondent some $400.

4. Enquiries were made by the Independent Commission Against Corruption. The mother informed upon the respondent. An usual ambush was laid. It was in a restaurant when the mother passed in an envelope some $400 in marked notes to the respondent that he was caught red-handed.

5. Most of the facts were not in dispute. The defence raised was that the respondent was a good-hearted man, trying to do Yeung a good turn. All the sums he received were spent in buying various items of comfort for the prisoner Yeung. The magistrate, having heard the case, rejected the defence to that extent that the respondent did not pocket some of the proceeds for his own use. For this reason, the respondent was convicted.

6. The magistrate took into consideration various other mitigating circumstances. This is apparent in the case stated after an application on the part of the Attorney General to the magistrate to review the sentence. The magistrate declined to change the sentence and he gave the reasons. He said he realised that the usual sentence for cases of corruption, but nonetheless he rejected the Crown's application because he took the view that 4 months immediate imprisonment for this respondent was punishment enough for the following reasons:

1.	That the defendant is a young man of good character. He saw him in the witness-box, and he struck the magistrate as a simple fellow, anxious to please. The magistrate felt that he had no doubt that the respondent did not - at the time - realise the gravity of the actions. Nor did the magistrate believe that the respondent instigated the events that the respondent was drawn into what he did by the prisoner and the prisoner's mother.
2.	The consequences of the respondent's conviction will be far-reaching and grave that he will never obtain any Government or quasi - Govermental employment again. He had wrecked an otherwise promising career for a few hundred dollars.
3.	Imprisonment for the respondent, as an ex-prison officer goaled in direct connection with his duties as such, will be a harsh time. The magistrate referred to the term "the clang of the prison door" that would give him a shock and be sufficient deterrent effect

to say there is force in the argument. We do not want to open a floodgate and set a precedent. The point of inducement was missed by both counsel for the defence and counsel for the prosecution in the court below. In the circumstances we grant leave to appeal against conviction. We allow the appeal. The conviction is quashed. The sentence is set aside. However, we order a new trial.

(Simon F.S. Li) Vice-President

Representation:

Mr. Andrew Macrae (R.J. Oliver & Co.) for appellant

Mr. Moorfoot (Crown) for respondent