DCCC57/2008 HKSAR v. HUI RUSSEL AND ANOTHER - LawHero
DCCC57/2008
區域法院（刑事）Deputy District Judge Dufton2/2/2009
DCCC57/2008
A A
B B
DCCC 57/2008
C C
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 57 OF 2008 D
____________
E E
HKSAR
F F
v
(D1) HUI Russel
G (D2) MOK King-yu G
____________
H H
Coram: Deputy District Judge Dufton in Court
I I
Date of Sentence: 15 & 23 January & 3 February 2009
Present: Mr Bernard Chung Counsel on Fiat for the Prosecution
J Mr. Eric Kwok S.C. leading Miss Karen Cheung instructed by Messrs Liu, J
Chan & Lam for D1.
K Mr. Gary Plowman S.C. leading Miss Po Wing-kay instructed by Messrs K
Haldanes for D2
L Charge: Conspiracy to defraud & bribery(串謀詐騙及向公職人員提供 L
利益)
M M
REASONS FOR SENTENCE
N N
O 1. Both defendants stand convicted after trial of one charge of O
conspiracy to defraud the Collector of Stamp Revenue. D1 is also
P P
convicted of one charge of offering an advantage to a public servant,
Q contrary to section 4(1)(c) of the Prevention of Bribery Ordinance, Q
Chapter 201.
R R
S 2. Full particulars of the offences are set out in my verdict delivered S
on the 15th January 2009. In summary the case concerned the sale of
T T
residential property in Kennedy Town, called “The Merton” (“the
U U
V V
2
A A
B B
Merton”), a development project undertaken by the Urban Renewal
C Authority. New World Development Co. Ltd (“New World”) in C
agreement with the Urban Renewal Authority was responsible for the
D D
construction and sale of the Merton units.
E E
3. On the 7th January 2005 when New World first put on sale units of
F F
the Merton in what was called internal sales, the defendants purchased 24
G flats in Block 1, on the 19th, 37th and 50th floors in the name of either G
Lucky Wise Holdings Limited (“Lucky Wise”) or Fat Tak Development
H H
Limited (“Fat Tak”).
I I
4. The conspiracy charge related to property bought by Lucky Wise
J J
on the 7th January 2005. Lucky Wise purchased all eight flats on the
K 19th floor. The same day Lucky Wise sub-sold flats A, B, F and G. The K
sub-sale was not reduced into writing. Instead the new buyer entered into
L L
an agreement for sale direct with New World thereby giving an
M appearance of there only ever having been one sale. The new buyer M
refunded the deposit already paid by Lucky Wise and in respect of flats A,
N N
B, and G the new buyer also paid an additional price ranging from
O $177,200 and $221,500, which additional price was not disclosed in the O
new sale agreement.
P P
Q 5. The original agreement for sale between New World and Lucky Q
Wise was concealed so as to save stamp duty for the defendants. The
R R
defendants saved a total of $496,600 in stamp duty. By not disclosing the
S additional price the new buyers saved stamp duty of between $5,316 and S
$6,645. The total loss to the Collector of Stamp Revenue was $513,883
T T
(see paragraphs 14 and 16 of the admitted facts, exhibit P113).
U U
V V
3
A A
B B
6. The bribery charge relates to events that occurred in November
C 2005 when the units of the Merton were due for completion. At this time C
Fat Tak were still holding nine flats. The total consideration for the nine
D D
flats was $38,887,000 of which $33,053,950 was due on completion.
E Failure to complete and Fat Tak were liable to forfeiture of the deposit in E
the sum of $1,944,350.
F F
G 7. D1 approached Andrew Lam, a public servant with the Urban G
Renewal Authority, who had signed the sale and purchase agreements on
H H
behalf of the Urban Renewal Authority, to request his help in rescinding
I the agreements. Specifically on the 28th November D1 telephoned I
Andrew Lam and offered him employment as a landscape consultant in
J J
return for his help in rescinding the agreements.
K K
8. In passing sentence I have carefully considered everything said on
L L
behalf of the defendants by Mr Kwok S.C. and Mr Plowman S.C.
M together with all the letters submitted on their behalf, which speak very M
highly of both defendants.
N N
O 9. I take into account that both defendants are persons of good O
character. Good character is taken into account in determining the proper
P P
starting point and additional discount is given only where there is
Q evidence of positive good character (see Secretary for Justice v TSO Q
Tse-kin [2004] 2 HKC 139 as affirmed in HKSAR v WONG King-wai
R R
CACC 364/2006).
S S
T T
U U
V V
4
A A
B B
Conspiracy
C C
10. The amendment to the Stamp Duty Ordinance introduced in 1992
D D
making agreements for sale liable for stamp duty was undoubtedly
E introduced to discourage property speculation. The defendants through E
the vehicle of internal sales devised a fraudulent scheme to avoid
F F
payment of that stamp duty so as to maximise their profit.
G G
11. The case highlights the abuse of the internal sales practice. The
H H
evidence shows a lack of supervision of the internal sales by the Urban
I Renewal Authority. Not surprisingly there were complaints from the I
public about the sale of the Merton (see exhibit D2-1). No doubt the
J J
Urban Renewal Authority will look into this carefully so as to avoid a
K repeat of the same situation in future. K
L L
12. In Attorney General v MA Lai-wu & others [1987] HKLR 744 as
M applied in R v NG Wai-keung [1997] HKLRD 142 the court said that the M
deliberate defrauding of the Inland Revenue was a serious matter
N N
affecting the community as a whole and that where there was deliberate
O and fraudulent evasion of tax sentences of imprisonment should be the O
norm. In NG Wai-keung the court said a sentence of imprisonment with
P P
immediate effect carries with it an important message to those, even of
Q exemplary character, who contemplate cheating the Revenue. These Q
principles equally apply to the deliberate and fraudulent evasion of stamp
R R
duty.
S S
T T
U U
V V
5
A A
B B
13. The defendants were acting as property speculators on a relativeley
C large scale. This was not a case of simple non-declaration but a C
deliberate scheme designed to defraud the Government of stamp duty.
D D
I am satisfied a deterrent sentence is required.
E E
14. Both Mr Kwok and Mr Plowman submit that in passing sentence I
F F
should be guided by the maximum sentence for the substantive offence of
G defrauding the Government of stamp duty. Section 59 of the Stamp Duty G
Ordinance provides that: “Any person who practises or is concerned in
H H
any fraudulent act, contrivance or device, not specially provided for by
I law, with intent to defraud the Government of any stamp duty commits an I
offence.” The penalty is to be found in section 60 making any person
J J
who commits or attempts to commit any offence under the Stamp Duty
K Ordinance liable to a fine at level 6 and to imprisonment for 1 year. K
L L
15. Mr Kwok and Mr Plowman therefore submit, notwithstanding the
M defendants are convicted of conspiracy, that this was one scheme to M
defraud the government and therefore the maximum sentence available to
N N
me is also 1 year. I disagree. The defendants purchased 24 flats on the
O same day and no doubt would have sub sold more than the four they did O
had they found a buyer. The evidence clearly shows a number of acts
P P
committed on the same day, each with intent to defraud the Government
Q of stamp duty. The original agreements for sale in respect of all four Q
properties were concealed and in respect of three there was no disclosure
R R
of the additional price. These are in my view seven separate acts each
S committed with intent to defraud the Government of stamp duty. I do S
however in deciding the starting point take into account that all acts took
T T
place on the same day over a relatively short period of time.
U U
V V
6
A A
B B
16. Mr Plowman asks that I draw a distinction in the role played by D2.
C In my view no distinction should be drawn between the defendants. Both C
were party to the scheme to defraud the Collector of Stamp Revenue,
D D
both to equally share the profit and loss they made in their property
E speculation. Whether or not D2 was present at the offices of New World E
on the 7th January 2005 does not in any way reduce his culpability.
F F
G 17. Taking into account all the circumstances together with the good G
character of the defendants I am satisfied the proper starting point after
H H
trial is eighteen months imprisonment.
I I
Delay
J J
K 18. The offences date back to 2005. Investigation started in 2006 with K
the defendants being interviewed in July 2006. No charges were laid
L L
until the defendants were arrested in January 2008, the defendants having
M initially been released without charge in 2006. I am satisfied from the M
explanation given by Mr Chung that the prosecution actively investigated
N N
the case and regularly sought legal advice. Whilst the case has taken a
O relatively long time to come to court the prosecution cannot be said to be O
at fault. Whilst the defendants have pleaded not guilty the delay in them
P P
being charged equally cannot be said to be attributable to them. In the
Q circumstances I am satisfied that some credit should be given on account Q
of delay (see HKSAR v WONG Ka-wah CACC 260/2006). I do this by
R R
reducing the sentence on charge 1 by two months.
S S
T T
U U
V V
7
A A
B B
Restitution
C C
19. Since conviction both defendants have now fully paid the stamp duty.
D D
Albeit this is at the very last moment some four years after the
E agreements for sale, some credit should still be given (see Secretary for E
Justice v LIN Min-ying [2002] 2 HKLRD 823).
F F
G Penalty G
H H
20. Payment of penalty is governed by section 9 of the Stamp Duty
I Ordinance, which provides for late stamping upon payment of the stamp I
duty and a penalty. The amount of the penalty is either double, 4 times or
J J
10 times depending on how late the instrument is stamped. Mr Plowman
K in mitigation referring to the solicitor’s letter dated the 15th January 2009 K
sending the cheque in payment of the stamp duty, which letter invited the
L L
Collector of Stamp Revenue to advise the amount of any penalty, said
M that on his instructions D2 would attend to payment of that penalty M
without delay.
N N
O 21. The agreements for sale being on the 7th January 2005 and not O
having been stamped within the time for stamping the Collector of Stamp
P P
Revenue in accordance with section 9(1)(c) imposed a penalty of 10
Q times the amount of the stamp duty, namely $4,966,000 (see the memo Q
from the Commissioner for Inland Revenue dated the 20th January 2009).
R R
Notification of the imposition of the penalty was sent to the solicitors
S representing the defendants on the 19th January 2009, a copy of which is S
attached to the memo.
T T
U U
V V
8
A A
B B
22. In view of Mr Plowman’s mitigation that the penalty would be paid
C without delay I was satisfied that before delivery of sentence I should ask C
whether payment of the penalty had been made and would therefore be a
D D
factor to take into account in passing sentence. Miss Cheung on behalf of
E D1 said the amount of the penalty was substantial and the defence wished E
to negotiate the amount with the Collector of Stamp Revenue. Miss Po
F F
on behalf of D2 similarly said that they wished to consider the matter.
G G
23. Having explained the reason why I raised this matter before delivery
H H
of sentence I asked whether the parties wished me to deliver sentence.
I Miss Po asked for a short adjournment to take further instructions. I
I granted the adjournment but made clear that this was not to be taken as
J J
an indication of sentence, as I also had when earlier adjourning to
K consider sentence. At that time a cheque had been delivered to the K
Revenue by D2’s solicitors and Mr Kwok informed the court a cheque
L L
had been lodged with D1’s solicitors but there had as yet been insufficient
M time to deliver the cheque. When adjourning sentence I said if payment M
of the stamp duty was made during the adjournment I would take that into
N N
account as a factor in mitigation but again made clear this was not to be
O taken as an indication of sentence to be imposed. O
P P
24. When the court resumed I was informed that a cheque in payment of
Q the penalty had been issued on behalf of both defendants. I adjourned Q
sentence to today to see whether payment was in fact made. I am advised
R R
the penalty has been paid in full. I am satisfied that by payment of the
S stamp duty and penalty the sentence on charge 1 should be reduced by S
four months.
T T
U U
V V
9
A A
B B
Bribery
C C
25. Bribery of a public servant is regarded very seriously, as D1 should
D D
well know, being a former public servant with the Urban Renewal
E Authority. Case law is clear that an immediate custodial sentence is E
appropriate unless there are exceptional circumstances (see Secretary for
F F
Justice v LI Cheuk-ming [1999] 1 HKLRD 63).
G G
26. I am satisfied there are no exceptional circumstances. Andrew
H H
Lam was approached to help in rescinding nine sales and purchase
I agreements, for which the outstanding balance due on completion was I
$33,053,950. Taking into account the good character of the defendant I
J J
am satisfied the proper starting point after trial is twelve months
K imprisonment. I am satisfied no further discount is to be given on K
account of delay having already dealt with this on the conspiracy charge.
L L
M Good Character M
N N
27. I have carefully considered all the letters submitted on behalf of the
O defendants. Whilst both defendants are held in high regard I am satisfied O
there is no evidence of positive good character in respect of D2, such as
P P
unpaid services to the community or charitable works. D1 on the other
Q hand has contributed to the redevelopment of the poorest areas of Hong Q
Kong both in his work with the Urban Renewal Authority and on a
R R
voluntary basis (see in particular the letters from Abraham Shek, Joseph
S Ho, Lo Wing-man and William Tseng). I am satisfied a further discount S
of one month’s imprisonment should be given to D1 on each charge.
T T
U U
V V
10
A A
B B
Mental disorder
C C
28. Mr Kwok submits a reduction in sentence should be given on
D D
account of D1 suffering from bipolar mood disorder as set out in the
E medical reports of Dr Ng and Dr Chen, which reports I have carefully E
considered, although the appendices to Dr Chen’s report were not
F F
supplied to me.
G G
29. In HKSAR v CHIU Peng, Richard [2002] 1 HKC 401 the Court of
H H
Appeal accepted that a court may properly allow a discount in sentence
I where a defendant is suffering from mental illness which played a part in I
the commission of the offence. The court said the justification for a
J J
discount in sentence by reason of mental illness was, “…as a reflection of
K diminished criminality or culpability on the part of the accused who has committed a K
crime under an abnormal state of mind. He knew that it was wrong to commit the
L crime, but he did not appreciate that the commission was as serious as it was: the L
degree of culpability was thus lessened. Or, as in this case, the accused’s mental
M M
illness made him gullible and easily susceptible to persuasion by the perpetrator of the
N
crime, reducing his responsibility for participating” N
O O
30. Mr Kwok contends had it not been for his illness the defendant
P
may not have purchased so many properties, which he clearly could not P
afford. With respect this overlooks that the defendant was acting as a
Q Q
property speculator and was not acting alone. His actions were motivated
R by one thing only, greed. In fact out of the 24 properties the defendants R
managed to sell 15, 10 of which appear to have made a profit (see exhibit
S S
P25 seized from the offices of Fat Tak).
T T
U U
V V
11
A A
B B
31. I am not satisfied that the disorder in anyway lessens the
C culpability of the defendant, in particular with regard to the conspiracy. C
However I am prepared to accept the opinion of Dr Chen at page 14 of
D D
her report that the defendant suffered from a Hypomanic Episode and that
E the onset of such a set of audacious and reckless behaviour had a close E
temporal relationship with his receiving anti depressant medication
F F
treatment from Dr Ng. I therefore reduce the sentence on each charge by
G one month. G
H H
32. Mr Plowman asks that I impose a suspended sentence. I have
I carefully considered all the mitigation presented by both Mr Plowman I
and Mr Kwok. I find no exceptional circumstances warranting
J J
suspension of any of the sentences in respect of either D1 or D2.
K K
33. The defendants are sentenced as follows:
L L
M Charge 1: D1 10 months imprisonment; M
D2 12 months imprisonment;
N N
Charge 5: D1 10 months imprisonment;
O O
34. The offences, although both relating to the Merton properties, are
P P
entirely separate and distinct. Consecutive sentences are appropriate.
Q Taking into account totality of sentence I order five months of charge 5 Q
consecutive and five months concurrent to charge 1, making a total of
R R
fifteen months imprisonment which I am satisfied properly reflects D1’s
S criminal culpability on these two charges. S
T T
(D. J. DUFTON)
Deputy District Judge
U U
V V
A A
B B
DCCC 57/2008
C C
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 57 OF 2008 D
____________
E E
HKSAR
F F
v
(D1) HUI Russel
G (D2) MOK King-yu G
____________
H H
Coram: Deputy District Judge Dufton in Court
I I
Date of Sentence: 15 & 23 January & 3 February 2009
Present: Mr Bernard Chung Counsel on Fiat for the Prosecution
J Mr. Eric Kwok S.C. leading Miss Karen Cheung instructed by Messrs Liu, J
Chan & Lam for D1.
K Mr. Gary Plowman S.C. leading Miss Po Wing-kay instructed by Messrs K
Haldanes for D2
L Charge: Conspiracy to defraud & bribery(串謀詐騙及向公職人員提供 L
利益)
M M
REASONS FOR SENTENCE
N N
O 1. Both defendants stand convicted after trial of one charge of O
conspiracy to defraud the Collector of Stamp Revenue. D1 is also
P P
convicted of one charge of offering an advantage to a public servant,
Q contrary to section 4(1)(c) of the Prevention of Bribery Ordinance, Q
Chapter 201.
R R
S 2. Full particulars of the offences are set out in my verdict delivered S
on the 15th January 2009. In summary the case concerned the sale of
T T
residential property in Kennedy Town, called “The Merton” (“the
U U
V V
2
A A
B B
Merton”), a development project undertaken by the Urban Renewal
C Authority. New World Development Co. Ltd (“New World”) in C
agreement with the Urban Renewal Authority was responsible for the
D D
construction and sale of the Merton units.
E E
3. On the 7th January 2005 when New World first put on sale units of
F F
the Merton in what was called internal sales, the defendants purchased 24
G flats in Block 1, on the 19th, 37th and 50th floors in the name of either G
Lucky Wise Holdings Limited (“Lucky Wise”) or Fat Tak Development
H H
Limited (“Fat Tak”).
I I
4. The conspiracy charge related to property bought by Lucky Wise
J J
on the 7th January 2005. Lucky Wise purchased all eight flats on the
K 19th floor. The same day Lucky Wise sub-sold flats A, B, F and G. The K
sub-sale was not reduced into writing. Instead the new buyer entered into
L L
an agreement for sale direct with New World thereby giving an
M appearance of there only ever having been one sale. The new buyer M
refunded the deposit already paid by Lucky Wise and in respect of flats A,
N N
B, and G the new buyer also paid an additional price ranging from
O $177,200 and $221,500, which additional price was not disclosed in the O
new sale agreement.
P P
Q 5. The original agreement for sale between New World and Lucky Q
Wise was concealed so as to save stamp duty for the defendants. The
R R
defendants saved a total of $496,600 in stamp duty. By not disclosing the
S additional price the new buyers saved stamp duty of between $5,316 and S
$6,645. The total loss to the Collector of Stamp Revenue was $513,883
T T
(see paragraphs 14 and 16 of the admitted facts, exhibit P113).
U U
V V
3
A A
B B
6. The bribery charge relates to events that occurred in November
C 2005 when the units of the Merton were due for completion. At this time C
Fat Tak were still holding nine flats. The total consideration for the nine
D D
flats was $38,887,000 of which $33,053,950 was due on completion.
E Failure to complete and Fat Tak were liable to forfeiture of the deposit in E
the sum of $1,944,350.
F F
G 7. D1 approached Andrew Lam, a public servant with the Urban G
Renewal Authority, who had signed the sale and purchase agreements on
H H
behalf of the Urban Renewal Authority, to request his help in rescinding
I the agreements. Specifically on the 28th November D1 telephoned I
Andrew Lam and offered him employment as a landscape consultant in
J J
return for his help in rescinding the agreements.
K K
8. In passing sentence I have carefully considered everything said on
L L
behalf of the defendants by Mr Kwok S.C. and Mr Plowman S.C.
M together with all the letters submitted on their behalf, which speak very M
highly of both defendants.
N N
O 9. I take into account that both defendants are persons of good O
character. Good character is taken into account in determining the proper
P P
starting point and additional discount is given only where there is
Q evidence of positive good character (see Secretary for Justice v TSO Q
Tse-kin [2004] 2 HKC 139 as affirmed in HKSAR v WONG King-wai
R R
CACC 364/2006).
S S
T T
U U
V V
4
A A
B B
Conspiracy
C C
10. The amendment to the Stamp Duty Ordinance introduced in 1992
D D
making agreements for sale liable for stamp duty was undoubtedly
E introduced to discourage property speculation. The defendants through E
the vehicle of internal sales devised a fraudulent scheme to avoid
F F
payment of that stamp duty so as to maximise their profit.
G G
11. The case highlights the abuse of the internal sales practice. The
H H
evidence shows a lack of supervision of the internal sales by the Urban
I Renewal Authority. Not surprisingly there were complaints from the I
public about the sale of the Merton (see exhibit D2-1). No doubt the
J J
Urban Renewal Authority will look into this carefully so as to avoid a
K repeat of the same situation in future. K
L L
12. In Attorney General v MA Lai-wu & others [1987] HKLR 744 as
M applied in R v NG Wai-keung [1997] HKLRD 142 the court said that the M
deliberate defrauding of the Inland Revenue was a serious matter
N N
affecting the community as a whole and that where there was deliberate
O and fraudulent evasion of tax sentences of imprisonment should be the O
norm. In NG Wai-keung the court said a sentence of imprisonment with
P P
immediate effect carries with it an important message to those, even of
Q exemplary character, who contemplate cheating the Revenue. These Q
principles equally apply to the deliberate and fraudulent evasion of stamp
R R
duty.
S S
T T
U U
V V
5
A A
B B
13. The defendants were acting as property speculators on a relativeley
C large scale. This was not a case of simple non-declaration but a C
deliberate scheme designed to defraud the Government of stamp duty.
D D
I am satisfied a deterrent sentence is required.
E E
14. Both Mr Kwok and Mr Plowman submit that in passing sentence I
F F
should be guided by the maximum sentence for the substantive offence of
G defrauding the Government of stamp duty. Section 59 of the Stamp Duty G
Ordinance provides that: “Any person who practises or is concerned in
H H
any fraudulent act, contrivance or device, not specially provided for by
I law, with intent to defraud the Government of any stamp duty commits an I
offence.” The penalty is to be found in section 60 making any person
J J
who commits or attempts to commit any offence under the Stamp Duty
K Ordinance liable to a fine at level 6 and to imprisonment for 1 year. K
L L
15. Mr Kwok and Mr Plowman therefore submit, notwithstanding the
M defendants are convicted of conspiracy, that this was one scheme to M
defraud the government and therefore the maximum sentence available to
N N
me is also 1 year. I disagree. The defendants purchased 24 flats on the
O same day and no doubt would have sub sold more than the four they did O
had they found a buyer. The evidence clearly shows a number of acts
P P
committed on the same day, each with intent to defraud the Government
Q of stamp duty. The original agreements for sale in respect of all four Q
properties were concealed and in respect of three there was no disclosure
R R
of the additional price. These are in my view seven separate acts each
S committed with intent to defraud the Government of stamp duty. I do S
however in deciding the starting point take into account that all acts took
T T
place on the same day over a relatively short period of time.
U U
V V
6
A A
B B
16. Mr Plowman asks that I draw a distinction in the role played by D2.
C In my view no distinction should be drawn between the defendants. Both C
were party to the scheme to defraud the Collector of Stamp Revenue,
D D
both to equally share the profit and loss they made in their property
E speculation. Whether or not D2 was present at the offices of New World E
on the 7th January 2005 does not in any way reduce his culpability.
F F
G 17. Taking into account all the circumstances together with the good G
character of the defendants I am satisfied the proper starting point after
H H
trial is eighteen months imprisonment.
I I
Delay
J J
K 18. The offences date back to 2005. Investigation started in 2006 with K
the defendants being interviewed in July 2006. No charges were laid
L L
until the defendants were arrested in January 2008, the defendants having
M initially been released without charge in 2006. I am satisfied from the M
explanation given by Mr Chung that the prosecution actively investigated
N N
the case and regularly sought legal advice. Whilst the case has taken a
O relatively long time to come to court the prosecution cannot be said to be O
at fault. Whilst the defendants have pleaded not guilty the delay in them
P P
being charged equally cannot be said to be attributable to them. In the
Q circumstances I am satisfied that some credit should be given on account Q
of delay (see HKSAR v WONG Ka-wah CACC 260/2006). I do this by
R R
reducing the sentence on charge 1 by two months.
S S
T T
U U
V V
7
A A
B B
Restitution
C C
19. Since conviction both defendants have now fully paid the stamp duty.
D D
Albeit this is at the very last moment some four years after the
E agreements for sale, some credit should still be given (see Secretary for E
Justice v LIN Min-ying [2002] 2 HKLRD 823).
F F
G Penalty G
H H
20. Payment of penalty is governed by section 9 of the Stamp Duty
I Ordinance, which provides for late stamping upon payment of the stamp I
duty and a penalty. The amount of the penalty is either double, 4 times or
J J
10 times depending on how late the instrument is stamped. Mr Plowman
K in mitigation referring to the solicitor’s letter dated the 15th January 2009 K
sending the cheque in payment of the stamp duty, which letter invited the
L L
Collector of Stamp Revenue to advise the amount of any penalty, said
M that on his instructions D2 would attend to payment of that penalty M
without delay.
N N
O 21. The agreements for sale being on the 7th January 2005 and not O
having been stamped within the time for stamping the Collector of Stamp
P P
Revenue in accordance with section 9(1)(c) imposed a penalty of 10
Q times the amount of the stamp duty, namely $4,966,000 (see the memo Q
from the Commissioner for Inland Revenue dated the 20th January 2009).
R R
Notification of the imposition of the penalty was sent to the solicitors
S representing the defendants on the 19th January 2009, a copy of which is S
attached to the memo.
T T
U U
V V
8
A A
B B
22. In view of Mr Plowman’s mitigation that the penalty would be paid
C without delay I was satisfied that before delivery of sentence I should ask C
whether payment of the penalty had been made and would therefore be a
D D
factor to take into account in passing sentence. Miss Cheung on behalf of
E D1 said the amount of the penalty was substantial and the defence wished E
to negotiate the amount with the Collector of Stamp Revenue. Miss Po
F F
on behalf of D2 similarly said that they wished to consider the matter.
G G
23. Having explained the reason why I raised this matter before delivery
H H
of sentence I asked whether the parties wished me to deliver sentence.
I Miss Po asked for a short adjournment to take further instructions. I
I granted the adjournment but made clear that this was not to be taken as
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an indication of sentence, as I also had when earlier adjourning to
K consider sentence. At that time a cheque had been delivered to the K
Revenue by D2’s solicitors and Mr Kwok informed the court a cheque
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had been lodged with D1’s solicitors but there had as yet been insufficient
M time to deliver the cheque. When adjourning sentence I said if payment M
of the stamp duty was made during the adjournment I would take that into
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account as a factor in mitigation but again made clear this was not to be
O taken as an indication of sentence to be imposed. O
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24. When the court resumed I was informed that a cheque in payment of
Q the penalty had been issued on behalf of both defendants. I adjourned Q
sentence to today to see whether payment was in fact made. I am advised
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the penalty has been paid in full. I am satisfied that by payment of the
S stamp duty and penalty the sentence on charge 1 should be reduced by S
four months.
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9
A A
B B
Bribery
C C
25. Bribery of a public servant is regarded very seriously, as D1 should
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well know, being a former public servant with the Urban Renewal
E Authority. Case law is clear that an immediate custodial sentence is E
appropriate unless there are exceptional circumstances (see Secretary for
F F
Justice v LI Cheuk-ming [1999] 1 HKLRD 63).
G G
26. I am satisfied there are no exceptional circumstances. Andrew
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Lam was approached to help in rescinding nine sales and purchase
I agreements, for which the outstanding balance due on completion was I
$33,053,950. Taking into account the good character of the defendant I
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am satisfied the proper starting point after trial is twelve months
K imprisonment. I am satisfied no further discount is to be given on K
account of delay having already dealt with this on the conspiracy charge.
L L
M Good Character M
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27. I have carefully considered all the letters submitted on behalf of the
O defendants. Whilst both defendants are held in high regard I am satisfied O
there is no evidence of positive good character in respect of D2, such as
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unpaid services to the community or charitable works. D1 on the other
Q hand has contributed to the redevelopment of the poorest areas of Hong Q
Kong both in his work with the Urban Renewal Authority and on a
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voluntary basis (see in particular the letters from Abraham Shek, Joseph
S Ho, Lo Wing-man and William Tseng). I am satisfied a further discount S
of one month’s imprisonment should be given to D1 on each charge.
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10
A A
B B
Mental disorder
C C
28. Mr Kwok submits a reduction in sentence should be given on
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account of D1 suffering from bipolar mood disorder as set out in the
E medical reports of Dr Ng and Dr Chen, which reports I have carefully E
considered, although the appendices to Dr Chen’s report were not
F F
supplied to me.
G G
29. In HKSAR v CHIU Peng, Richard [2002] 1 HKC 401 the Court of
H H
Appeal accepted that a court may properly allow a discount in sentence
I where a defendant is suffering from mental illness which played a part in I
the commission of the offence. The court said the justification for a
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discount in sentence by reason of mental illness was, “…as a reflection of
K diminished criminality or culpability on the part of the accused who has committed a K
crime under an abnormal state of mind. He knew that it was wrong to commit the
L crime, but he did not appreciate that the commission was as serious as it was: the L
degree of culpability was thus lessened. Or, as in this case, the accused’s mental
M M
illness made him gullible and easily susceptible to persuasion by the perpetrator of the
N
crime, reducing his responsibility for participating” N
O O
30. Mr Kwok contends had it not been for his illness the defendant
P
may not have purchased so many properties, which he clearly could not P
afford. With respect this overlooks that the defendant was acting as a
Q Q
property speculator and was not acting alone. His actions were motivated
R by one thing only, greed. In fact out of the 24 properties the defendants R
managed to sell 15, 10 of which appear to have made a profit (see exhibit
S S
P25 seized from the offices of Fat Tak).
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11
A A
B B
31. I am not satisfied that the disorder in anyway lessens the
C culpability of the defendant, in particular with regard to the conspiracy. C
However I am prepared to accept the opinion of Dr Chen at page 14 of
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her report that the defendant suffered from a Hypomanic Episode and that
E the onset of such a set of audacious and reckless behaviour had a close E
temporal relationship with his receiving anti depressant medication
F F
treatment from Dr Ng. I therefore reduce the sentence on each charge by
G one month. G
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32. Mr Plowman asks that I impose a suspended sentence. I have
I carefully considered all the mitigation presented by both Mr Plowman I
and Mr Kwok. I find no exceptional circumstances warranting
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suspension of any of the sentences in respect of either D1 or D2.
K K
33. The defendants are sentenced as follows:
L L
M Charge 1: D1 10 months imprisonment; M
D2 12 months imprisonment;
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Charge 5: D1 10 months imprisonment;
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34. The offences, although both relating to the Merton properties, are
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entirely separate and distinct. Consecutive sentences are appropriate.
Q Taking into account totality of sentence I order five months of charge 5 Q
consecutive and five months concurrent to charge 1, making a total of
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fifteen months imprisonment which I am satisfied properly reflects D1’s
S criminal culpability on these two charges. S
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(D. J. DUFTON)
Deputy District Judge
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