刑事檢控科各律師/高級律政 - Department of Justice

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The facts showed that whilst the Appellant was employed as
Chief Estate Manager at the Taikoo Shing residential estate, and in the
course of his employment, he accepted from a company that had been
awarded the maintenance contract for Phase II of the estate at a total
sum of about $300,000 over the three charges.
The magistrate took as a starting point for each of the offences a
period of 12 months’ imprisonment on each charge, and he reduced
that to 8 months to reflect the early plea. The terms of imprisonment
for each charge were further reduced to 6 months to reflect the
previous exemplary character and the service of the Appellant to the
community. The sentences were ordered to run concurrently.
On appeal, material was produced to show that the Appellant
had done good works whilst awaiting his appeal. He had also given
evidence for the prosecution in a corruption trial. The health of the
Appellant’s wife had also suffered, and the family had been affected.
The Appellant contended that the magistrate had erred in not taking into
account the undertaking to give evidence for the prosecution. It was
also said that the sentence of imprisonment should have been
suspended.
Held :
(1) A mere promise to give evidence on a future occasion was not a
mitigating factor. No discount should attach to a promise which might
not be fulfilled: R v Wong Kam-chiu [1993] 2 HKC 700;
(2) Where there was a promise from an offender to assist the
prosecution, the appropriate course was to either defer sentence until
he had had the opportunity to deliver upon his promise, or to sentence
forthwith, leaving it to the appellate court or the Chief Executive to give
the proper discount after he had testified;
(3) Even a first offender convicted of an offence of corruption under
the Prevention of Bribery Ordinance, unless it was a merely technical
breach, had usually to expect a deterrent sentence. As Stuart-Moore
VP said in Secretary for Justice v Kwan Chi-cheong and Others AR
1/1999:
A punishment that fails to deter will produce all the
wrong signals just as sentences which act as a
deterrent will reinforce this community’s efforts to
rid itself of corruption.
The magistrate could not be criticised for taking a starting point of 12
months’ imprisonment;