DCCC299/2021 HKSAR v. YEUNG KING LUN AND OTHERS - LawHero
DCCC299/2021
區域法院（刑事）Her Honour Judge A N Tse Ching7/4/2025[2025] HKDC 635
DCCC299/2021
A A
B B
DCCC 299/2021
C [2025] HKDC 635 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 299 OF 2021
F F
G --------------------------------- G
HKSAR
H H
v
I YEUNG KING LUN (D1) I
J WONG DI CHUN J
(formerly known as LAU YIN CHUN) (D3)
K K
CHEUNG YUI MING (D4)
L ---------------------------- L
M M
Before: Her Honour Judge A N Tse Ching in Court
N Date: 8 April 2025 N
Present: Ms Rosa Lo, Senior Public Prosecutor, for HKSAR/Director
O O
of Public Prosecutions
P Mr Gibson Shaw, instructed by Cheung & Liu, assigned by P
the Director of Legal Aid, for the 1st Defendant
Q Q
Ms Cindy Kong, instructed by HK&JY Solicitors, assigned
R by the Director of Legal Aid, for the 3rd Defendant R
Mr Andrew Raffell, instructed by T K Tsui & Co, assigned
S S
by the Director of Legal Aid, for the 4th Defendant
T T
U U
V V
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A A
B B
Offences: [1] Conspiracy to commit misconduct in public office (串謀
C 犯藉公職作出不當行為罪) – against D1 & D3 C
[2] Conspiracy to commit misconduct in public office (串謀
D D
犯藉公職作出不當行為罪) – against D3 & D4
E E
[3] Conspiracy to doing act tending and intended to pervert
F the course of public justice (串謀作出傾向並意圖妨礙司 F
法公正的行為) – against D3
G G
H H
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I
REASONS FOR SENTENCE I
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J J
K 1. There are 5 Defendants in the present case: K
L L
(1) D1 and D3 are charged with one count of conspiracy to
M commit misconduct in public office, contrary to M
Common Law, sections 159A and 159C of the Crimes
N N
Ordinance, Cap. 200 and section 101I(1) of the
O Criminal Procedure Ordinance, Cap. 221 (Charge 1); O
P P
(2) D2 to D5 are charged with one count of conspiracy to
Q commit misconduct in public office, contrary to Q
Common Law, sections 159A and 159C of the Crimes
R R
Ordinance, Cap. 200 and section 101I(1) of the
S Criminal Procedure Ordinance, Cap. 221 (Charge 2); S
T T
U U
V V
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A A
B B
(3) D3 is charged with one count of conspiracy to doing an
C act tending and intended to pervert the course of public C
justice, contrary to Common Law, sections 159A and
D D
159C of the Crimes Ordinance, Cap. 200 and section
E 101I(1) of the Criminal Procedure Ordinance, Cap. 221 E
(Charge 3).
F F
G 2. D2 and D5 pleaded guilty to Charge 2 before another Court. G
After trial, D1 was convicted of Charge 1, D3 was convicted of Charges 1
H H
and 2 but acquitted on Charge 3, D4 was convicted of Charge 2. These are
I my reasons for sentence. I
J J
FACTS
K K
3. The facts are set out in detail in the Verdict and I do not
L L
propose to repeat them in detail here.
M M
4. In short, D1 and D2 were officers of the Correctional Services
N N
Department (CSD) and were public officers. At all material times, they
O were posted to Tong Fuk Correctional Institute (TFCI). Prisoners were O
assigned to work in different workshops during their remand, including the
P P
Construction and Maintenance Unit (CMO). D1 was the officer-in-charge
Q of the CMO whilst D2 was D1’s assistant. D3, D4 and D5 were all Q
R
prisoners in TFCI. At the time of the offences, D3 was still serving his R
sentence in TFCI whilst D4 and D5 had been released on 5 June 2020 and
S S
3 September 2020 respectively. D3, D4 and D5 have all been assigned to
T
work at the CMO under D1 and D2’s supervision over various periods. T
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V V
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A A
B B
5. Under the Prisons Ordinance and the Prison Rules, CSD
C officers were not allowed to bring any unauthorized items into prisons for C
transmission to prisoners. CSD officers were also prohibited from being
D D
friends or becoming too familiar with prisoners and former prisoners.
E Further, CSD officers were prohibited from bringing their personal digital E
devices, including telephones into the prison area. Persons visiting
F F
prisoners were only allowed to bring authorized items, which did not
G include cigarettes or telephones. G
H H
6. The ICAC mounted a covert operation, where a micro audio
I recording device was planted on D1. Subsequently, the operation turned I
overt and all 5 defendants were arrested.
J J
K 7. Cigarettes are valuable property in prison. Prisoners can use K
their wages to purchase cigarettes through the arrangement of the CSD.
L L
However, prisoners are restricted to only 2 brands of cigarettes, namely
M “Wealth” and “Gentori”. CSD officers are allowed to bring cigarettes into M
prison for their own consumption, except for the brands “Wealth” and
N N
“Gentori”. However, CSD officers are only allowed to smoke in designated
O areas outside the prison area and are not allowed to give any cigarettes to O
prisoners.
P P
Q Q
8. When D3 was intercepted inside TFCI, a number of
R
prohibited articles were found in his possession, including a mobile R
telephone with a SIM card, lighters and unauthorized brands of cigarettes.
S S
T T
U U
V V
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A A
B B
9. Under caution, D3 admitted that he had made the mobile
C telephone and had 2 SIM cards. Investigation revealed that the 2 SIM cards C
were used to make thousands of telephone calls and send thousands of SMS
D D
messages to different people, including D4, D5, D3’s family and friends.
E E
10. In the audio recording from the covert operation, D3 showed
F F
the mobile telephone to D1. D3 complained about the reception of one of
G the SIM cards and D1 promised to make enquiries on D1’s behalf from the G
service-providing companies. The audio recording from the service
H H
providers show that telephone calls were made from D1’s telephone to
I enquire about the reception of D3’s SIM card. A piece of paper was also I
found in D1’s home with the handwritten number of that SIM card.
J J
K 11. Investigation also revealed that D4 had set up a WhatsApp K
chat group after his release from prison. D2, D4 and D5 were all members
L L
of this chat group. In the chat group, D2, D4 and D5 spoke about the
M telephone calls they received from D3. In September and October 2020, M
D3 often asked D5 to top up his telephone SIM cards. During the same
N N
period, D3 also sent SMS messages to D5, asking him to tell D2 to
O purchase cigarettes for him. D5 then relayed all these messages to D2 in O
the WhatsApp chat group. D2 would inform D5 after he purchased the
P P
cigarettes. D3 also asked D5 to tell D2 to purchase prepaid telephone SIM
Q Q
card.
R R
12. In the chat group D4 asked D2 to tell D3 that D4 has dealt
S S
with $5,000 for D3. When D2 offered to tell D3 not to call, both D4 and
T
D5 disagreed. T
U U
V V
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A A
B B
13. The evidence showed that D2 had purchased cigarettes for
C D3. D5 and his father had also topped up D3’s SIM card. Messages were C
exchanged between D4 and D2 about the supply of cigarettes to D3 in the
D D
chat group. D4 told D2 that he had 11 cartons of cigarettes for D3. D2
E promised to pass cigarettes to D3 whenever possible and told D4 that D3 E
was smoking e-cigarettes at the workshop.
F F
G THE DEFENDANTS’ BACKGROUND G
H H
D1
I I
14. D1 is 47 years old and has a clear record. He joined the CSD
J J
in 1999 as an Assistant Officer II and was promoted to Assistant Officer I
K in 2019. He was suspended from his duties after he was charged in the K
present case in 2021 and has been receiving about half his salary each
L L
month.
M M
15. D1 is married and has a 12-year-old son. His wife was a flight
N N
attendant but she lost her job as a result of the pandemic. D1 and his wife
O have agreed to divorce in December 2024. O
P P
D3
Q Q
R
16. D3 is 32 years old, single and educated up to Form 3 level. He R
has 3 previous convictions, all drug related. His last conviction was on 12
S S
September 2012 for one count of possession of dangerous drugs and one
T
count of trafficking in dangerous drugs. He was sentenced respectively to T
U U
V V
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A A
B B
15 months’ and 14 years’ imprisonment to be served concurrently. D3 was
C serving the above sentence when he committed the present offences. C
D D
D4
E E
17. Counsel for D4 has not provided the Court with any personal
F F
details about D4 in his submissions. According to his antecedent statement,
G D4 is 40 years old and received education up to upper secondary level. He G
has 2 previous convictions, both related to drugs. His last conviction was
H H
on 1 August 2018 for Trafficking in Dangerous Drugs and he was
I sentenced to 5 years’ imprisonment. He committed Charge 2 shortly after I
he was released from prison.
J J
K 18. According to a letter from D4’s parents, D4 is the fourth child K
out of 5 children from a working class family. He had an electrician licence
L L
and used to work in a construction company.
M M
LEGAL PRINCIPLES
N N
O 19. The present case was brought and heard in the District Court. O
The jurisdictional limit for sentence is 7 years’ imprisonment. There are no
P P
sentencing guidelines or tariffs. The sentence for each case depends on its
Q Q
own facts.
R R
S S
T T
U U
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A A
B B
Cases Cited
C C
20. The Prosecution referred the Court to the following cases:
D D
E (1) HKSAR v Lee Ho Wai and Lam Hon Ki DCCC E
299/2021;
F F
G (2) HKSAR v Chow Koon Shing [2007] 3 HKLRD 10; G
H H
(3) HKSAR v Chan Yee Lap [2019] 5 HKLRD 187; and
I I
(4) HKSAR v Tang Kwai Man and another HCMA
J J
752/2012.
K K
21. Apart from Tang Kwai Man (supra), Counsel for D1 also
L L
referred to Secretary for Justice v Shum Kwok Sher [2001] 3 HKLRD 386
M and 香港特別行政區 訴 鄭俊傑 DCCC 1136/2021. M
N N
22. Other than HKSAR v Lee Ho Wai and Lam Hon Kei (supra),
O O
Counsel for D3 referred to:
P P
(1) R v Chan Wai Chiu & Ors [1994] 3 HKC 212;
Q Q
R (2) HKSAR v Chui Sing Chi Grace [2020] HKCFA 27; R
S S
(3) HKSAR v. Wong Koon Ho Titus HCMA 366/2013;
T T
(4) HKSAR v Lai Wing Kit & Au Pui Lan DCCC 409/2015;
U U
V V
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A A
B B
C (5) HKSAR v Sin Kam Wah & Another CACC 520/2003; C
D D
(6) HKSAR v. Yuen Wai Chong HCMA 201/2014; and
E E
(7) HKSAR v Chan Yee Lap CACC 202/2017.
F F
G 23. Counsel for D4 referred to: G
H H
(1) Secretary for Justice v Schmitt [2008] HKCU 979;
I I
(2) Secretary for Justice v Chan Kit Bing [2001] 1 HKLRD
J J
844; and
K K
(3) HKSAR v Lam Ka Sin [2021] HKCA 180.
L L
M 24. HKSAR v Lee Ho Wai and Lam Hon Kei are the reasons for M
sentence for D2 and D5 in the present case. This was provided to inform
N N
the Court how the other 2 defendants in the same case were dealt with by
O another Judge. I will deal with this further below. O
P P
25. Apart from HKSAR v Lee Ho Wai and Lam Hon Kei, 香港特
Q Q
別行政區 訴 鄭俊傑 and HKSAR v Lai Wing Kit & Au Pui Lan cited by
R the Defence are District Court cases. They not authorities and are not R
binding on this Court. These sentencing cases do not establish any
S S
sentencing principles. Moreover, the sentences in cases with completely
T different facts have no reference value to the Court. T
U U
V V
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A A
B B
26. In 律政司司長 對 唐健帮及另二人 CAAR 13/2022, [2023]
C HKCA 896, the Court of Appeal stated: C
D D
“35. 第一，雙方於本案存檔了多份區域法院的判刑理由
書，希望藉此支持己方立場。本庭在 律政司司長 訴 溫達
E 揚一案第 27 段已指出： E
F 「…因為這些判刑，從來就沒有經過上訴而被肯 F
定，也沒有什麼量刑原則可言，對量刑既沒有約束
G
力也沒有參考價值，根本起不了任何指導作用，根 G
本不應稱之為『案例』…」
H H
況且，「有意圖而傷人」及「暴動/非法集結」罪的案情，
以及某被告人的背景、犯案動機、於該案所扮演的角色等
I 事項，可謂千變萬化，任何單純對案件判刑作出比較的做 I
法，都不能協助本庭處理原審判刑是否恰當這個議題。歸
J 根究底，控罪要旨（gravamen of the offence）及適用的量 J
刑因素才是重點所在，而非個別案件的判刑。”
K K
27. In HKSAR v Lau Chun Yuk and Others CACC 243/2021,
L L
[2023] HKCA 1098, the Court of Appeal specifically stressed yet again:
M M
「51. Before we conclude, we would like to make a special
N mention. The applicants had, in their written submissions, cited N
the sentencing at first instance in another No. 2 Bridge riot case
of the District Court (HKSAR v 陳 起 行 (Chan Hay Hang)
O O
(transliteration) [2021] HKDC 874) as the pivot of the
application of Choy Ka Fai in support of the proposition that the
P starting point in the present case was too high, but were P
ultimately dissuaded. This Court pointed out previously on
many occasions, and further reiterated this year in Secretary for
Q Justice v Tong Kin Pong and two others [2023] HKCA 896 (date Q
of Reasons for Judgment: 25 August 2023): sentencing at first
R instance, which has not gone through appeal, is not binding on R
courts of the same level, nor is it of any reference value to the
appellate court, and therefore should not be relied upon by the
S legal profession as a basis for appeal.」 S
T T
U U
V V
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A A
B B
D1
C C
28. Counsel for D1 submitted that D1 has always strived to excel
D D
and complete his work in the CSD to the best of his ability. His
E performance was recognized by his supervisor and he was promoted to E
Assistant Officer I in 2019.
F F
G 29. In HKSAR v Chow Koon Shing, the Court stated: G
H H
“23. … The Magistrate considered that to ensure public
confidence in law enforcement officers was maintained, the
I courts must take a serious view of police officers who abused I
their positions. The Appellant, a formerly upstanding officer,
had had a significant fall from grace. There was evidence of
J J
his good character before the court, but as the Appellant was
a police officer that was neither surprising, nor of much
K mitigatory weight. K
24. I share the view of the Magistrate that this was a serious
L offence; the Appellant abused his position as a police officer and L
committed the offence on magistracy premises …
M M
26. The wilful misconduct in this case was “serious, not
trivial, having regard to the responsibilities of the office and the
N office holder, the importance of the public objects which they N
served and the nature and extent of the departure from those
O
responsibilities.” (Sin Kam Wah & Another and HKSAR [2005]2 O
HKLRD 375)
P 27. … his behaviour brings the police force into disrepute P
and, to the extent that the offence was carried out in the
magistracy building, could affect also the public perception of
Q Q
the judicial system.”
R R
30. In HKSAR v Chan Yee Lap, the Court of Appeal stated:
S S
“23. … Institutions under the Correctional Services
T Department are set up to punish and educate inmates who have T
flouted the law, so that they will obey the law and observe
discipline. It is imperative that the Correctional Services
U U
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A A
B Department has a rigorous procedure in place to deal with B
visitors and prisoners’ property. The appellant conspired with a
C staff member of the Correctional Services Department and other C
inmates to strike at the established procedure of the Department
by deceit …”.
D D
31. Counsel submitted that D1’s marriage has deteriorated as a
E E
result of D1 being investigated by the ICAC. D1 and his wife agreed to
F F
divorce in December 2024.
G G
32. The adverse effect of imprisonment upon an offender’s family
H H
is not a factor normally to be taken into account in sentence. In Sentencing
I in Hong Kong, 11th edition, the author explained: I
J J
“[30-130] Family circumstances are often prayed in aid in
mitigation by convicted persons. However, ‘family hardship
K which is usually attendant upon the conviction is to be viewed K
as a part of the price an accused must pay for the crime’: HKSAR
v Li Kwok-ching [2005] HKCU 1702 (HCMA 1132/2005, 30
L November 2005, unreported). Those who commit offences L
should keep in mind the ‘principle that the adverse effect of
M imprisonment upon an offender’s family is not a factor normally M
to be taken into account: HKSAR v Chan Kin-chung [2002] 4
HKC 314, 321. Family circumstances, in any event, ‘are matters
N which a wise man would take into consideration before he N
commits an offence and not after’: HKSAR v To Yiu-cho [2009]
O
5 HKLRD 309, 311…. O
[30-131] An accused must appreciate that his family will
P suffer ‘if he is caught and convicted’: R v Shipra [1988] HKC P
412 … If the accused is convicted and sentenced as a rapist this
may have unfortunate consequences for his family, but ‘this is
Q Q
often the tragedy in such cases’: HKSAR v Chan Tung-hing,
Band [2010] 3 HKC 304, 307; HKSAR v CYL [2016] 3 HKC
R 531, 537. In HKSAR v Shum Chung-wai [2002] 2 HKLRD 81, R
87, Lugar-Mawson J said: ‘This court has said many times that
family circumstances should be disregarded, particularly when
S sentences for serious offences are concerned’… S
T [30-132] if police officers commit serious offences, the gravity T
of their conduct may outweigh any sympathy the court may feel
for their families: HKSAR v Lau Kwok and Ors [2003] HKCU
U U
V V
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A A
B 615 (CACC 529/2001, 30 May 2003, unreported). … If serious B
crime is involved, personal factors may have to be disregarded:
C Attorney General v Chan Chi Mei-wah [1990] 1 HKLR 190, C
193…”
D D
33. Counsel further submitted that D1 was suspended from his job
E duties since he was charged in 2021 and has only been receiving half of his E
salary. His wife, who was a flight attendant, lost her job as a result of the
F F
pandemic. D1 found himself emotionally disturbed and consulted
G psychiatrists for treatment. In July 2021, he was diagnosed to be suffering G
H
from Adjustment Disorder with Depressive Symptoms, with low mood, H
anxiety, worsened sleep and appetite, negative cognitions and fleeting
I I
suicide ideas. The conclusion was that D1’s mental problem was due to his
J
being charged by the ICAC and the impact on his family. J
K K
34. In Court, Counsel conceded that ill health is not a mitigating
L factor. In Sentencing in Hong Kong, 11th edition it was explained: L
M M
“[30-174] The ill health of an accused ‘is not a license to
commit crime’: Clarkson v R (2007) 171 A Crim R 1, 49.
N N
[30-175] In Yip Kai-foon v HKSAR [2000] 1 HKC 335, 339 …,
Li CJ said: ‘Under the guidelines and principles evolved by the
O O
courts, medical grounds will seldom, if ever, be a basis for
reducing the sentence for crimes of gravity’.…
P P
[30-176] The objective criminality of particular offences will
often be such that the sentence of imprisonment which is
Q otherwise appropriate is necessary irrespective of health factors: Q
HKSAR v Tong Fuk-sing [1999] 3 HKC 332, 336 … The
R Correctional Services Department operates ‘excellent’ medical R
facilities: HKSAR v Wong Chi-choi [2005] HKCU 1443 (HCMA
628/2005, 6 October 2005, unreported). In HKSAR v Woo Shun-
S cheong and Anor [1998] HKCU 2082 (CACC 120/1998, 10 S
December 1998, unreported), an aged offender who complained
of ill health was told that his condition could be ‘adequately dealt
T T
with in prison’.
U U
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A A
B [30-177] In HKSAR v Tam Yuen-tong [2007] 1 HKLRD 894, B
896 …, McMahon J made the point that ‘as a matter of reality
C most prisoners receive medical attention in prison of an equal or C
better standard than they would otherwise receive’. In HKSAR
v Chan Kau-tai [2008] 3 HKC 78, 89 …, it was noted that the
D accused who needed a liver transplant was being attended to in D
the custodial ward at Queen Mary Hospital and was ‘in good
E
hands’. Save in the rarest of cases, a ‘prisoner’s medical E
condition is not a matter to which this court will have regard for
mitigation of a proper sentence’: R v Ho Mei-Lin [1996] 4 HKC
F 491, 493 … F
[30-180] In Attorney General v So Chee-kong, Eddie [1994]
G G
HKCU 75 (CAAR 9/1992, 8 June 1994, unreported), the court,
having been told that if the sentence of the accused was to be
H extended his mental health would suffer, responded that ‘it H
would not, we are satisfied, be proper for us to give weight to
possible deterioration in his health. It is a matter for the Prison
I Authorities to see that he receives proper medical attention’ I
(approved in HKSAR v Cheung Suet-ting [2010] 6 HKC 249,
J 261). Matters of that type do not fall for consideration as an act J
of mercy: HKSAR v Lau Mei-mei [2002] HKCU 240 (CACC
338/2001, 1 March 2002, unreported) …”
K K
35. Counsel also submitted that D1 has been a law-abiding citizen
L L
for 47 years and has a clear record.
M M
N
36. D1 is only 47 and can hardly be described as old. In N
Sentencing in Hong Kong, 11th edition, it was explained:
O O
“[30-32] The point at which the maturity of the accused is
P P
relevant as mitigation is sometimes said to have been reached at
the age of 60: R v Tsui Lai-ying and Ors [1987] 5 HKLR 857,
Q 881… However, in HKSAR v Chow Chi-ming [2006] HKCU Q
398 (HCMA 1247/2005, 21 February 2006, unreported), Leong
DJ said it was generally accepted that ‘old age, unless extremely
R R
advanced in age, is generally not a mitigating factor’. In HKSAR
v Lau Yuk-huen [2008] HKCU 864 (CACC 37/2008, 5 June
S 2008, unreported), it was said that the 66-year-old accused was S
not to be regarded as old.”
T T
U U
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A A
B B
37. As for D1’s clear record, Sentencing in Hong Kong, 11th
C Edition stated: C
D D
“[7-5] In R v Chan Ka-choi [1988] 1 HKLR 530, 534 … the
traditional approach of the courts to the issue of clear record was
E explained: E
Once the offender has been found guilty of the offence,
F the court must, leaving aside personal circumstances and F
previous record, make an assessment as to the proper
G sentence to be imposed given the type of offence and the G
circumstances of its commission. When this has been
done, the court must give credit for absence of previous
H convictions and for personal circumstances. H
[7-6] Credit for a clear record is, however, by no means a
I I
given. Much will depend upon the nature of the offence and the
position of the offender. In HKSAR v Law Num-chun [2014] 6
J HKC 606, 617, Lunn VP said: J
[T]he principle is that good character is not a factor
K K
relevant generally to determining the starting point to be
taken for sentence in serious criminal offences for which
L a deterrent sentence is required.… L
[7-10] The good character of the accused is, moreover, of little
M relevance if the offence involves corruption: HKSAR v Wong M
Yiu-kuen [2001] 1 HKC 486, 491. In R v Dearnley and
N Treapleton [2001] 2 Cr App R (S) 201, 203, the point was made N
that corrupt officials will invariably be of good character, for if
it were otherwise, they would ‘not be in a position from which
O to behave in a fashion which strikes at the principle of fair O
competition’. …
P P
[7-18] The relevance of good character is related to the
circumstances of the accused. Good character sometimes refers
Q to no more than an absence of previous convictions, and this is Q
not a basis for an additional discount: HKSAR v Wong Kam-
shing, Jackie [2010] 4 HKC 580, 584. At other times, it may
R R
refer to something altogether more positive. Good character can
be recognized as a factor in mitigation ‘where positive good
S character is shown by, for example, the provision of unpaid S
service to the community, as opposed merely to the absence of
a criminal record’: Secretary for Justice v Tso Tsz-kin [2004] 2
T HKC 139, 144. The mere absence of criminal convictions must T
not be confused with positive good character, and the simple
U discharge of duties in a proper manner ‘does not constitute what U
V V
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A A
B is to be regarded as positive good character’: HKSAR v Leung B
Ping-nam [2007] 5 HKC 413, 427; HKSAR v Chung Ka-hung
C [2010] HKCU 738 (CACC 349/2008, 31 March 2010, C
unreported). …
D [7-26] The proposition is sometimes advanced that a deterrent D
sentence ought not to be imposed upon a first offender: Ho Kau
E
v R [1978] HKLR 197, 198 … However, in HKSAR v Tai Chi- E
sing and Ors [2016] 2 HKC 436, 445, Barnes J said: ‘I do not
accept that there is such a sentencing practice that a deterrent
F sentence should not be passed on a man of clear record. Whether F
a deterrent sentence is called for, even for a first offender, must
be case specific’. In HKSAR v Chan Chi-ming and Anor [2003]
G G
3 HKLRD 654, 657 …, the court said:
H It is generally true that wherever possible a court will H
strive to avoid imposing a sentence of deterrence upon a
first offender. That is because it can be said of many
I mature first offenders particularly that their I
transgressions went against the grain of their previous
J lives. J
[7-27] However, the existence of a clear record in a sufficiently
K serious case can never of itself be enough to save an accused K
from an immediate sentence of imprisonment: Securities and
L
Futures Commission v Choy Wai-zak [2003] 1 HKC 30, 35. … L
In other words, previous good character is not a bar to the
imposition of a deterrent sentence if the gravity of the offence
M justifies it: HKSAR v Chan Mo-kong [1998] 1 HKLRD 678, M
680 …”
N N
38. Counsel relied on Secretary for Justice v Shum Kwok Sher
O O
[2001] 3 HKLRD 386 and pointed out that D1 would lose his retirement
P gratuity and pension of about HKD 3 million and would also face a P
disciplinary hearing. In that case, the defendant was a senior public servant.
Q Q
He used his position to provide preferential treatment in the award of
R valuable Government contracts to companies owned by his extended R
family. He was sentenced to 4 concurrent sentences of 9 months’
S S
imprisonment. The Government sought a review of the sentence, claiming
T that the Judge had taken into account irrelevant mitigation and that he erred T
in equating the defendant’s conduct to “small scale corruption”. The Court
U U
V V
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A A
B B
of Appeal stated that the appropriate sentence should have been not less
C than 3 years: C
D D
“39. Dealing firstly with … somewhat muted criticism of the
judge for giving any weight to the Respondent's lost retirement
E benefits and to the sad results of the fall from grace suffered by E
all his family, we consider that the unusual circumstances of the
case were such that they inevitably contributed to the
F punishment received by the Respondent. Accordingly, in our F
view the judge was right to have taken these factors into account,
G provided they were not given too much weight. The Respondent G
knew what he was doing and for many years he took a calculated
risk that he would not be found out which, in the end, did not
H pay off. H
40. As to other criticisms of the sentencing remarks, we
I I
consider that these had merit. The offences may not have
resulted in the Government's financial loss but the Respondent's
J favouritism effectively cut out properly qualified companies J
from acquiring the contracts which, as a result, will have lost
considerably when their tenders for the work were rejected. It
K K
was also beside the point that the Respondent did not benefit
financially. If he had done so, an additional or replacement
L offence would have presumably been brought under section 4 of L
the Prevention of Bribery Ordinance which is not what the
Respondent was being sentenced for. …”
M M
N
39. In assessing sentence, I will bear in mind that D1 may face a N
disciplinary hearing, as a result of which, he may lose his job and pension.
O O
However, the consequences of committing this offence were obvious.
P However, D1 took a calculated risk that he would not be found out, a risk P
which did not pay off in the end. The loss of his job and his pension carries
Q Q
limited weight in mitigation.
R R
40. Counsel also cited 香 港 特 別 行 政 區 訴 鄭 俊 傑 . The
S S
defendant was convicted of one charge of misconduct in public office after
T trial. He provided preferential treatment by awarding Government T
contracts to a company owned by his extended family. Counsel submitted
U U
V V
- 18 -
A A
B B
that the Deputy Judge considered a suspended sentence as a viable
C sentencing option although the defendant was convicted after trial. The C
Deputy Judge stated that the Defendant was convicted 5 years after the
D D
commission of the offence; he was suffering from mental illness; he had a
E clear record; the risk of reoffending was low; the defendant had made E
considerable contributions to the Hong Kong Post and the defendant had
F F
no financial gain.
G G
41. Counsel submitted that the background of the defendant in
H H
that case bears “assemblance” to D1 in the present case. Firstly, as stated
I above, this was a District Court case. It is not an authority and is not I
binding on this Court. Secondly, the facts of that case are very different
J J
from the present case. Thirdly, as was pointed out above, the Court must
K assess the sentence according to the gravamen of the offence. The K
background of the defendant carries little weight when the court is dealing
L L
with serious offences. I have already dealt with the law in relation to a clear
M record, ill health, the impact of the sentence on the defendant’s family and M
the absence of financial gain above. I will not repeat them here.
N N
O 42. As for the lapse of time between the commission of the O
offence and conviction, I recognize that a delay in bringing an accused to
P P
justice is normally recognized as a mitigating factor that can be taken into
Q Q
account in sentence: Mills v HM Advocate General for Scotland 2002 SCR
R
860, 877. However, as was stated in Sentencing in Hong Kong, 11th R
edition:
S S
“[30-84] This usually arises where the prosecution is at fault
T T
for the delay: HKSAR v Lau Kin-yu [2003] HKCU 251 (HCMA
391/2002, 13 March 2003, unreported). Such a delay might
U U
V V
- 19 -
A A
B cause the accused to be ‘under the strain of legal proceedings for B
a very long time’: Attorney General v Ling Kar-fai (No.2) [1997]
C 2 HKC 651, 654. If the accused is himself responsible for the C
delay, he cannot expect to benefit: HKSAR v Chan Chun-chuen
(CACC 233/2015, 30 October 2015, unreported).
D D
[30-85] In Secretary for Justice v Schmitt [2008] HKCU 979
E
(CAAR 12/2006, 17 June 2008, unreported). Stuart-Moore VP E
noted that there is a delay in every case before trial, and that the
‘real question is whether there has been an unreasonable delay,
F through the fault of a defendant, which has contributed to his F
punishment’. The court will also need to be satisfied that the
delay has ‘resulted in unfairness to the accused’: R v L (1995) 84
G G
A Crim R 142, 145. If there is a delay resulting from a very
extensive (and necessary) investigation, the accused cannot
H expect to benefit therefrom: Secretary for Justice v Ip Hon-ming H
and Anor [2015] 1 HKC 143, 168.
I [30-86] In HKSAR v Law King-yip and Ors [2004] HKCU I
1391 (CACC 369/2003, 14 October 2004, unreported), (as
J approved in HKSAR v Cheung Suen-ting [2010] 6 HKC 249, J
257), complaint was made, by one of several persons convicted
of conspiracy to defraud, about the delay of over 30 months
K between the dates of arrest and trial. It was further argued that K
the trial of 108 hearing days had constituted an additional
L
hardship, ‘worse’, so it was said, ‘than prison’. In rejecting these L
factors as mitigation, the court commented that the delay had to
be viewed in the context of the size of the investigation that the
M police had to conduct. The conspiracy had lasted for more than M
a year, there were many victims, expert witnesses had to be
consulted, and the prosecution was not at fault for the delay. The
N N
trial has been listed for 20 days, but overran because the defense
had rigorously contested the case. In these circumstances, Lunn
O J said the court was satisfied that ‘neither the delay in the O
commencement of proceedings nor the length of the trial itself
are factors relevant to the sentence imposed’.
P P
[30-95] In Scook v R (2008) 185 A. Crim R 164, 176 …, Buss
Q JA sought to identify the ‘guiding principles’ in relation to delay, Q
although these were not intended to be ‘exhaustive or
inflexible’; these were cited with approval in HKSAR v Chui
R Chi-wing [2013] HKCU 2420) (CACC 243/2012, 18 October R
2013, unreported), His Honour identified seven matters as being
of relevance:
S S
First, the delay is not, of itself, a mitigating factor.
T T
Secondly, delay will not ordinarily be a mitigating
factor if it has been caused by difficulties in
U U
V V
- 20 -
A A
B detecting, investigating or proving the offences B
committed by the offender, and the period of the
C delay is reasonable in the circumstances. C
Thirdly, delay will not ordinarily be a mitigating
D factor if it is caused by the offender’s obstruction or D
lack of cooperation with the State, prosecuting
E
authorities, or investigatory bodies, but the E
offender’s reliance on his or her legal rights is not
obstruction or lack of cooperation for this purpose.
F F
Fourthly, delay will not ordinarily be a mitigating
factor if it results from the normal operation of the
G G
criminal justice system, including delay as a result of
the offender or a co-offender exercising his or her
H rights; for example, interlocutory appeals and other H
interlocutory processes,
I Fifthly, delay may be conducive to the emergence of I
mitigating factors; for example, if, during the period
J of delay, the offender has made progress towards J
rehabilitation or other circumstances favorable to
him or her have emerged.
K K
Sixthly, delay (not being delay of the kind described
L
in the second, third and fourth guiding principles) L
will ordinarily be a mitigating factor if:
M (1) the delay had resulted in significant stress for M
the offender or left him or her, to a significant
degree, ‘in uncertain suspense’; or
N N
(2) during the period of delay the offender has
O adopted a reasonable expectation that he or O
she would not be charged, or a pending
prosecution would not proceed, and the
P offender has ordered his or her affairs on the P
faith of that expectation,
Q Q
Seventhly, delay caused by dilatory or neglectful
conduct by the State, prosecuting authorities or
R investigatory bodies may result in a discount of the R
sentence that would otherwise be imposed on the
offender, if the court thinks it an appropriate means
S S
of marking its disapproval of the conduct in question.
T T
U U
V V
- 21 -
A A
B B
43. There is no suggestion that there was any delay in the arrest
C or the prosecution of D1 in the present case. The trial spanned a very C
lengthy period because of the Defence’s complaint about Mr Li Siu On.
D D
This was completely unforeseeable. The prosecution offered 4 witnesses
E for cross-examination in relation to the complaint to enable the Defence to E
consider their position in relation to the potential application for a
F F
permanent stay and to ensure that the defendants had a fair trial. The case
G was repeatedly adjourned because of the ill health of Mr Li Siu On (the G
subject of the complaint). However, his absences were all supported by
H H
medical certificates. It also took time to hear and decide on the subsequent
I application for permanent stay. There was clearly no unreasonable delay in I
the present case.
J J
K 44. Lastly, counsel cited HKSAR v Tang Kwai Man: K
L L
(1) The 2 appellants were CSD officers who were charged
M with one count of misconduct in public office. They M
were responsible for the supervision of some inmates
N N
who had been released from the drug addiction
O treatment center; O
P P
(2) The first appellant had (i) failed to visit some inmates
Q Q
at their homes or work places as stated on the
R
corresponding records of supervision; (ii) absented R
himself when some inmates provided their urine
S S
samples; (iii) submitted records of supervision with
T
incorrect dates, times, places and/or participating T
officers and (iv) failed to record in the records of
U U
V V
- 22 -
A A
B B
supervision that an inmate had admitted to taking
C drugs; C
D D
(3) The 2nd appellant had (i) failed to visit some of the
E inmates at their homes or workplaces as stated in the E
records of supervision; (ii) absented himself when
F F
some of the inmates provided their urine samples; (iii)
G failed to deliver the urine samples provided by some G
inmates for drug examination; (iv) submitted the
H H
records of supervision with incorrect dates, times,
I places and/or participating officers; and failed to record I
in the records of supervision when one of the inmates
J J
admitted that he had taken dangerous drugs;
K K
(4) Each of the appellants was charged with one count of
L L
misconduct in public office. They both pleaded guilty
M and the magistrate sentenced each appellant to 3 M
months’ imprisonment. The appellants appealed
N N
against that sentence. The appeal was dismissed.
O O
45. Counsel submitted that the gravity of misconduct in Tang
P P
Kwai Man was more considerable than the present case. D1 did not make
Q Q
a profit from the offence and it was a one-off incident.
R R
46. I disagree. Firstly, the facts of Tang Kwai Man are very
S S
different from those of the present case. In those circumstances, the
T
sentence in that case is not a reference for the sentence in the present case. T
U U
V V
- 23 -
A A
B B
Further, there are marked differences between Tang Kwai Man and the
C present case: C
D D
(1) The appellants in Tang Kwai Man were responsible for
E the supervision of inmates who served their sentences E
in the drug addiction treatment center. In other words,
F F
those inmates have been convicted of relatively minor
G offences. In the present case, D3 was serving a 14 G
years’ prison sentence for trafficking in dangerous
H H
drugs;
I I
(2) In Tang Kwai Man, all the inmates have finished
J J
serving their sentence. In the present case, D3 was a
K serving prisoner; K
L L
(3) The purpose of supervision after release from a drug
M addiction treatment center was rehabilitation. The M
purpose in prison was punishment and education to
N N
obey the law;
O O
(4) Each of the appellants faced a charge on their own. In
P P
the present case, not only was there a conspiracy, the
Q Q
co-conspirator was a serving prisoner;
R R
(5) In Tang Kwai Man case, the offences were committed
S S
in the open community whilst the offence in the present
T
case was committed inside the prison. T
U U
V V
- 24 -
A A
B B
47. I note that D2 in the present case was also a CSD officer and
C that the learned Judge adopted 12 months as a starting point. C
D D
48. Firstly, D1 and D2 faced different charges and the facts
E against them are different. The learned Judge came to the conclusion that E
the facts relating to D2 came within the lower end of the spectrum in
F F
relation to the offence of misconduct in public office. In assessing sentence,
G the learned Judge considered a number of cases cited to him. None of the G
cases cited to the learned Judge involved a telephone. It does not appear
H H
that the learned Judge has been addressed on the significance of a prisoner
I being in possession of a telephone inside prison. I
J J
49. In my judgment, the wilful misconduct of which D1 stands
K convicted in the present case was serious, not trivial: K
L L
(1) As was stated in Chan Yee Lap, institutions under the
M CSD are set up to punish and educate inmates who have M
flouted the law, so that they will obey the law and
N N
observe discipline. The behaviour of D1 makes a
O mockery of the prison system and brings the CSD into O
disrepute;
P P
Q Q
(2) Instead of punishing and educating D3, D1 conspired
R
with D3 to flout the law inside prison; R
S S
(3) As a CSD officer, D1 was entrusted with the duty to
T
supervise and discipline prisoners. His behaviour was T
in breach of the trust reposed in him by the CSD;
U U
V V
- 25 -
A A
B B
C (4) There is no dispute that D1 was the officer-in-charge of C
the CMO. He was of a more senior rank than D2;
D D
E (5) Not only did D1 allow D3 to continue with the E
possession and use of the telephone, he took active
F F
steps in an attempt to enhance the use of the telephone;
G G
(6) The offence was committed inside prison;
H H
I (7) Telephones are prohibited in prisons for a number of I
reasons:
J J
K (i) the possession and use of a telephone by K
prisoners posed a security risk to the prison;
L L
M (ii) convicted persons are remanded in prison so that M
they can cut ties with bad elements in society.
N N
The possession and use of a telephone inside
O prison completely defeats that purpose; O
P P
(iii) telephone calls inside prison are arranged by the
Q Q
CSD and are monitored to ensure that prisoners
R
are not continuing with their criminal activities. R
The possession and use of a telephone by a
S S
prisoner inside prison makes a mockery of that
T
system; T
U U
V V
- 26 -
A A
B B
(iv) D3 was serving 14 years’ imprisonment for
C trafficking in dangerous drugs. C
D D
(8) D1 has not demonstrated an iota of remorse for
E committing the offence. When he was arrested by the E
ICAC, he instructed his helper to destroy or dispose of
F F
all his digital devices in an attempt to obstruct the
G investigation. He was convicted after trial. After G
conviction for Charge 1, he still fails to take
H H
accountability of his own criminal behaviour. He is
I blaming the failure of his marriage and the possible loss I
of his employment, gratuity and pension on the ICAC
J J
investigation;
K K
(9) I do not accept that this was a one-off incident. In the
L L
audio recording, although D1 was surprised by the
M miniature size of the telephone, he clearly knew that D3 M
had a telephone prior to the recorded conversation. D3
N N
did not even have to tell D1 that he had a telephone. He
O only complained about the reception. O
P P
50. Counsel relied on 鄭俊傑 and suggested that this Court could
Q Q
consider a suspended sentence. That suggestion is wholly untenable. That
R was a sentencing case in the District Court. It is not binding on this Court, R
does not lay down any sentencing principles and the facts are entirely
S S
different. In Sentencing in Hong Kong 11th edition, it was explained:
T T
“[1-108] The position of the offender can have a direct impact
U upon sentence in some circumstances. The culpability of an U
V V
- 27 -
A A
B offender from a good background may be regarded ‘as the B
greater particularly if he is a person to whom others look for an
C example’: Attorney General v Chan Chi-yin and Anor [1988] C
HKC 44, 46. Professional people have a duty to uphold public
standards as well as the standards of their profession: Attorney
D General v Tai Chin-wah [1994] 2 HKCLR 81, 93. A breach of D
trust by a person in authority may require a deterrent sentence:
E
R v Kwok Yee, William (CACC 452/1993, 4 March 1994, E
unreported).
F [1-109] In HKSAR v Leung Chun-man (CACC 156/2003, 17 F
October 2003, unreported), a serving police officer was
sentenced to 21 months’ imprisonment for corruption offences.
G G
Cheung JA said ‘For a public servant who was responsible for
the enforcement of law and order in Hong Kong, his
H involvement with these offences are clearly aggravating factors’. H
[1-110] In HKSAR v Hui Man-tai [2008] HKCU 1135
I (CACC 334/2007, 22 July 2008, unreported), it was said that I
police officers who break the laws they are entrusted to uphold
J have ‘to be made examples in terms of deterrent sentencing so J
that others will not be tempted to follow along similar lines and
so that public confidence will be maintained’. Those who are
K entrusted to uphold the law but break it in ‘a deliberate and K
shocking way’, must expect ‘an immediate sentence of
L
imprisonment’: HKSAR v Wong Cho-shing and Ors [2019] 4 L
HKC 401 …. It is, moreover, an aggravating factor for a serving
police officer to commit serious offences while acting in the
M course of his duty: HKSAR v Yuen Ka-kui, Chris [2013] 5 HKC M
64. …”
N N
51. In my judgment and taking into account the possibility of a
O O
loss of gratuity and pension, the appropriate starting point for D1 in Charge
P 1 is 18 months’ imprisonment. P
Q Q
52. D1 was convicted after trial and has not shown a shred of
R remorse. As explained above, nothing put forward on his behalf amounts R
to mitigation. Accordingly, he is sentenced to 18 months’ imprisonment
S S
for Charge 1.
T T
U U
V V
- 28 -
A A
B B
D3
C C
53. Counsel cited a number of cases involving misconduct in
D D
public office. As stated above, Lai Wing Kit was a District Court case and
E is not binding on this court. The facts of all of the cases are wholly different E
from those of the present case. The charges in Chui Sing Chi Grace, 黃冠
F F
豪, Sin Kam Wah and 袁慧妝 were not conspiracy. Chan Yee Lap involved
G conspiracies but none of the cases cited involved a telephone. I did not find G
any of the cases cited to be of any assistance.
H H
I
54. Counsel drew the Court’s attention to the sentence of D2 and I
J
D5 and that the Court found that Charge 2 was a relatively minor category J
within the spectrum of the offence of misconduct in public office. She also
K K
relied on R v Chan Wai Chiu in relation to disparity of sentences. She
L submitted that the actual charge was misconduct in public office which was L
committed by D1 and D2. D3 was in a passive position and his culpability
M M
should be regarded as lower than that of D1 and D2 as he was only a
N prisoner and had no authority over D1 and D2. Counsel further submitted N
that no detriment is suffered by any victim and the chance of reoffending
O O
is remote.
P P
55. I agree with the principles in relation to the disparity of
Q Q
sentences but I wholly disagree with Counsel’s submissions:
R R
(1) As explained above, I take a very serious view of a
S S
prisoner’s possession and use of a telephone in prison.
T It posed a risk to security of the prison and makes a T
complete mockery of the prison system;
U U
V V
- 29 -
A A
B B
C (2) Charges 1 and 2 are not misconduct in public office. It C
is conspiracy to commit misconduct in public office.
D D
That misconduct in public office involves a breach of
E trust on the part of D1 and D2 and adversely affects E
public confidence in the prison system;
F F
G (3) There were two conspiracies in the present case; D1 and G
D2 were each part of one of the conspiracies, whilst D3
H H
was part of both conspiracies;
I I
(4) Theoretically, D1 and D2 had authority over D3.
J J
However, in the present case, they actually became
K D3’s willing servants, catering to D3’s whims and K
demands;
L L
M (5) Not only did D3 involve 2 CSD officers, he also M
involved 2 other prisoners who have just finished
N N
serving their prison sentences;
O O
(6) D3 was the instigator of both conspiracies. He
P P
constructed the telephone; had 2 SIM cards brought
Q Q
into prison for his use; used the telephone to give
R
instructions to D4 and D5, who in turn passed on R
instructions to D2; gave instructions to D1 to check his
S S
telephone reception and to try to improve the same and
T
used the telephone to place bets and obtain Mark 6 T
U U
V V
- 30 -
A A
B B
results. In other words, D3 was calling all the shots and
C was the mastermind of both conspiracies; C
D D
(7) D3 committed 2 offences whereas each of the other
E defendants only committed one offence; E
F F
(8) D3 flouted the law whilst serving a long term
G imprisonment for serious offences; G
H H
(9) D1 and D2 are likely to lose their jobs, gratuity
I and/pensions. D3 has no such loss. I
J J
56. In my judgment, in view of D3’s role, his culpability for
K Charge 1 is at least equal to that of D1 and is even graver than that of D2. K
For each of Charges 1 and 2, I adopt a starting point of 18 months.
L L
M 57. D3 was convicted of both charges after trial. He has not M
demonstrated any remorse. There are no mitigating circumstances. The
N N
sentence of each of Charges 1 and 2 is 18 months.
O O
58. I note that both conspiracies were carried out by D3 in tandem,
P P
at the same time and in the same location. However, the conspiracies are
Q Q
distinct and involve different people; the sentences should be wholly
R
consecutive. However, I must consider the question of totality. Concurrent R
sentences are only appropriate for offences that can be said to have been
S S
committed in the course of a single transaction: Attorney General v Cheung
T
Pit Yiu [1989] 2 HKLR 12, 14. If offences are discrete and independent, it T
is more likely that ‘the sentence for one offence cannot comprehend the
U U
V V
- 31 -
A A
B B
criminality of the other’: Vaovasa v R (2007) 174 A Crim R 121.
C Commission of multiple offences is an aggravating factor and make the C
charges more serious: See HKSAR v Ngai Yiu Ching [2011] 6 HKC 238.
D D
E 59. In the light of the facts of the present case, I am of the view E
that an overall sentence of 24 months is appropriate. Accordingly, I order
F F
that 6 months of the sentence in Charge 2 be served consecutively to
G the sentence for Charge 1, i.e. an overall sentence of 24 months. G
H H
D4
I I
60. Counsel cited Secretary for Justice v Schmitt and urged the
J J
Court to consider the time it took for the trial to conclude. I have already
K dealt with this case above. There was no unreasonable delay in the present K
case.
L L
M 61. Counsel then repeated parts of the messages between the M
Defendants and submitted that D4 played a very minor or peripheral role
N N
in the conspiracy. I disagree with that submission. It was D4 who set up
O the WhatsApp group to facilitate the execution of the conspiracy. When O
D2 offered to ask D3 to stop calling D4 and D5, D4 refused the offer. D4
P P
took care of $5,000 for D3; he also asked D2 to bring cigarettes into prison
Q Q
for D3. D4 told D2 that he had 11 cartons of cigarettes for D2 to pass on to
R
D3. R
S S
62. Counsel cited Secretary for Justice v Chan Kit Bing [2001] 1
T
HKLRD 844. He submitted that D4 has positively organized his affairs, T
has been employed in several construction projects with a view to
U U
V V
- 32 -
A A
B B
rehabilitating himself back into society before this offence; he was also a
C charitable and hardworking man. C
D D
63. Counsel’s submission is self-contradictory. On the one hand,
E he submitted that D4 was determined to rehabilitate himself. On the other E
hand, he stated that D4 was trying very hard to hold on to his friendship
F F
with D3 and D5. There is no dispute that D4 was discharged from prison
G on 6 May 2020. He set up the WhatsApp group to facilitate the conspiracy G
on 4 September 2020, i.e. within about 4 months of his release. I also do
H H
not accept that D4 donated to charity. Letters were produced by World
I Vision to show that the charity received donations in D4’s name between I
2017 and 2023. According to his criminal record, D4 was serving a 5-year
J J
prison term from 1 August 2018. He could not have made the donations
K from 2018 to 2020. K
L L
64. Counsel also referred to paragraph 31 of HKSAR v Lam Ka
M Sin [2021] HKCA 180: M
N N
“There is an element of compassion when addressing the object
of rehabilitation, and this is normally displayed by the
O O
recognition of the suffering or misfortune of an offender.
However, the offender must have shown that he has dissociated
P himself from his past wrongful conduct, and has committed P
himself to the future respect of the law. Where an offender has
reformed and is not likely to reoffend, he is deserving of a
Q sentencing option or measure that is appropriate for the category Q
of the offence, and that also provides the means for his
R rehabilitation.” R
S 65. Counsel has not provided the Court with a copy of that S
authority. In fact, the facts in that case are very different from the present
T T
case. In that case, the 25-year-old appellant pleaded guilty to conspiring to
U U
V V
- 33 -
A A
B B
launder the proceeds of an indictable offence by lending her bank account
C to an acquaintance, Ah Fei, to bank a cheque of $1.1 million. She was to C
be paid $10,000, but she knew no other details. Ah Fei passed her a cheque
D D
and told her to deposit it, and immediately cash it at the bank. She did so
E but the bank staff refused to process the cheque because the particulars on E
the cheque had been poorly written. She returned the cheque to Ah Fei and
F F
the appellant took no further part in transacting the cheque and received no
G reward. The appellant committed the offence in January 2016 and was G
arrested and released on police bail in December of that year. On 27
H H
January 2017, the appellant was sentenced to attend a Drug Addiction
I Treatment Centre following her conviction for possession of a dangerous I
drug. On 23 February 2018, she was rearrested for the conspiracy to
J J
launder money. On 30 May 2018, the appellant gave birth to a son. In
K November 2019, she was sentenced to 1 year and 10 months’ imprisonment K
for the conspiracy to launder money, with the sentencing judge adopting a
L L
starting point of 2 years and 9 months’ imprisonment and reducing it by
M one-third for the guilty plea. She had served 11 months of her sentence and M
cared for her son whilst in prison by the time her appeal against sentence
N N
was heard. The Court of Appeal held:
O O
(1) There was a distinction, although there might be some
P P
overlap, between extending mercy to an offender when
Q Q
sentencing and applying sentencing principles to
R
achieve individual justice. The exercise of mercy when R
sentencing an offender must be done in the context of a
S S
balanced approach. Mercy must be exercised by
T
considerations which were supported by evidence and T
by having proper regard to essential sentencing
U U
V V
- 34 -
A A
B B
principle and policy so as not to render a merciful
C sentence into an inappropriate one … C
D D
(2) As a general rule, persons convicted of money
E laundering, even if they were first offenders, should be E
sentenced to a term of immediate imprisonment. …
F F
Deterrence was paramount, given the encouragement
G and nourishment money laundering gave to crime in G
general …
H H
I (3) Where there were present circumstances that justified I
the sentencing court taking a lenient approach, the
J J
means by which this should be achieved was by
K reducing the starting point that would otherwise be K
appropriate for the gravity of the offending. There
L L
might be cases where a sentencing court was satisfied
M there were present ‘exceptional circumstances’ to M
warrant consideration of alternative sentencing options.
N N
The concept of ‘exceptional circumstances’ for the
O purposes of suspending a sentence of imprisonment, O
was wide enough to allow a sentencing court to take
P P
into account all relevant circumstances surrounding the
Q Q
offence, the offender and the background.
R
Accordingly, ‘exceptional circumstances’ might arise R
because of the prominent effect of an individual factor
S S
or the cumulative effect of several factors, but whatever
T
the situation, it required taking an overall or holistic T
view of the case. …
U U
V V
- 35 -
A A
B B
C (4) The facts and circumstances of the present case C
highlighted the importance of individual justice when
D D
sentencing an offender. The classical principles of
E sentencing had been characterised by the objects of E
retribution, deterrence, prevention and rehabilitation. It
F F
would depend on the particular circumstances of the
G offence and the offender which of these objects applied G
and to what level and degree. There was a tendency
H H
when sentencing offenders for serious crime to place
I emphasis on deterrence, for the very important primary I
object of protecting the community, but rehabilitation
J J
should not be overlooked, particularly when the
K circumstances of the case cried out for a more K
individualised sentence. The sentence a court imposed
L L
must carefully be moulded not only to the category of
M the offence but to the offender. There would be cases, M
because of the gravity of the offence and the culpability
N N
of the offender, where little if any weight was given to
O mitigating factors that would otherwise be taken into O
account. But there was also a need for individual justice
P P
in such a case. Rehabilitation as an object of sentencing
Q Q
was aimed at the renunciation by the offender of his
R
wrongdoing and past misdeeds and his establishment or R
re-establishment as a law-abiding citizen. The ultimate
S S
object of the courts was to fashion sentencing measures
T
designed to bring back into the fold an offender as a T
law-abiding citizen wherever such measures were
U U
V V
- 36 -
A A
B B
consistent and compatible with the primary object of
C the criminal law which was the protection of the C
community. There was an element of compassion when
D D
addressing the object of rehabilitation, and this was
E normally displayed by the recognition of the suffering E
or misfortune of an offender. However, the offender
F F
must have shown that he had dissociated himself from
G his past wrongful conduct, and had committed himself G
to the future respect of the law. Where an offender had
H H
reformed and was not likely to reoffend, he was
I deserving of a sentencing option or measure that was I
appropriate for the category of the offence, and that also
J J
provided the means for his rehabilitation.
K K
(5) The appropriate starting point in the appellant’s case
L L
was one of 24 months’ imprisonment. Insufficient
M account was given to the circumstances of the offence M
and to the personal background and mitigation of this
N N
appellant. This had a bearing on the gravity of the
O offence and the culpability of the appellant as well as O
revealing ‘exceptional circumstances’ that warranted
P P
consideration of the range of sentencing options or
Q Q
measures that would appropriately address individual
R
justice. The appellant agreed to process a cheque R
through her bank account for a fee; this was to be a
S S
single transaction. She withdrew from the arrangement
T
after it did not go through and had no further T
involvement in the matter. Her withdrawal from the
U U
V V
- 37 -
A A
B B
arrangement provided strong support that she, a person
C in vulnerable state, was forced to go through it. Where C
a person agreed to engage in criminal conduct but
D D
because of some reason or intervening factor decided
E not to continue to be involved, this was a matter that E
clearly reflected on the gravity of the offence and the
F F
culpability of the offender. The appellant’s personal
G circumstances and factual circumstances of her G
involvement in the offence were not properly evaluated
H H
and the judge therefore erred in imposing a high and
I inappropriate starting point. … I
J J
(6) There were present in this case ‘exceptional
K circumstances’ that warranted consideration as to K
whether the sentence should be suspended in
L L
accordance with s 109B(1) of the Criminal Procedure
M Ordinance (Cap. 221). The ‘exceptional M
circumstances’ in this case were a culmination of the
N N
following matters: (i) the events leading up to and
O surrounding the offence and the fact that the appellant O
withdrew from the arrangement (even though this also
P P
reflected on the gravity of the offence and the
Q culpability of the appellant); (ii) the appellant’s age and Q
R
personal circumstances and her vulnerability to R
exploitation by others; (iii) the birth of the appellant’s
S S
child and the change of her lifestyle and attitude in a
T
positive and responsible way in the prolonged period T
after the offence; and (iv) the appellant’s renunciation
U U
V V
- 38 -
A A
B B
of her wrongdoing and past misdeeds and the
C reformation of her character and commitment to C
pursuing a law-abiding life.
D D
E 66. It is apparent that none of the ‘exceptional circumstances’ E
mentioned by the Court of Appeal are present here. The Defendant is 40
F F
years old. He took active part in the conspiracy until he was arrested by the
G ICAC. The letter from the IRD showed that D4 has failed to pay his tax on G
time. The total amount of tax payable for 2 financial years was $54,634 (ie
H H
$27,317 per annum). This does not demonstrate that D4 has earned several
I hundred thousands of dollars in both years as alleged. I
J J
67. In Sentencing in Hong Kong 11th edition, it was stated:
K K
‘[30-80] If an accused with a criminal record has ‘gone
L straight’ for a long time prior to his conviction, this may tell in L
his favour: HKSAR v Wu Yee-ki [2006] HKCU 1100 (CACC
513/2005, 30 June 2006, unreported). This is because a change
M M
in lifestyle can provide ‘compelling evidence of insight and
remorse’: R v McGeogh [2011] NICC 16, …
N N
[30-81] In R v Thomas (1994) 16 Cr App R (S) 616, 620, it
was said that, as the conviction of the accused was in the distant
O O
past, the court could treat his latest transgression as ‘an isolated
offence’. In HKSAR v Chan Hong (HCMA 1255/2001, 21
P December 2001, unreported), reference was made in the P
calculation of sentence to the accused’s ‘apparently successful
endeavors in leading a significantly reformed life over the past
Q 17 years.’ Q
R [30-403] In HKSAR v Lam Ka-sin [2021] 2 HKC 493, …, R
Zervos JA said that ‘where a person agrees to engage in criminal
conduct but because of some reason or intervening factor
S decides not to continue to be involved, this is a matter that S
clearly reflects on the gravity of the offence and the culpability
of the offender’. If an accused has withdrawn from a criminal
T T
enterprise, he should do something tangible to demonstrate
it. …”
U U
V V
- 39 -
A A
B B
C 68. As stated above, the offence is a serious one. Bearing in mind C
D4’s relatively minor role compared to D1 and D3, I am of the view that
D D
the appropriate starting point for D4 is 9 months’ imprisonment. He was
E convicted after trial and is not entitled to the discount for a plea. There are E
no other mitigating factors. D4 is sentenced to 9 months.
F F
G G
H H
( A N Tse Ching )
I District Judge I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 299/2021
C [2025] HKDC 635 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 299 OF 2021
F F
G --------------------------------- G
HKSAR
H H
v
I YEUNG KING LUN (D1) I
J WONG DI CHUN J
(formerly known as LAU YIN CHUN) (D3)
K K
CHEUNG YUI MING (D4)
L ---------------------------- L
M M
Before: Her Honour Judge A N Tse Ching in Court
N Date: 8 April 2025 N
Present: Ms Rosa Lo, Senior Public Prosecutor, for HKSAR/Director
O O
of Public Prosecutions
P Mr Gibson Shaw, instructed by Cheung & Liu, assigned by P
the Director of Legal Aid, for the 1st Defendant
Q Q
Ms Cindy Kong, instructed by HK&JY Solicitors, assigned
R by the Director of Legal Aid, for the 3rd Defendant R
Mr Andrew Raffell, instructed by T K Tsui & Co, assigned
S S
by the Director of Legal Aid, for the 4th Defendant
T T
U U
V V
-2-
A A
B B
Offences: [1] Conspiracy to commit misconduct in public office (串謀
C 犯藉公職作出不當行為罪) – against D1 & D3 C
[2] Conspiracy to commit misconduct in public office (串謀
D D
犯藉公職作出不當行為罪) – against D3 & D4
E E
[3] Conspiracy to doing act tending and intended to pervert
F the course of public justice (串謀作出傾向並意圖妨礙司 F
法公正的行為) – against D3
G G
H H
--------------------------------------
I
REASONS FOR SENTENCE I
--------------------------------------
J J
K 1. There are 5 Defendants in the present case: K
L L
(1) D1 and D3 are charged with one count of conspiracy to
M commit misconduct in public office, contrary to M
Common Law, sections 159A and 159C of the Crimes
N N
Ordinance, Cap. 200 and section 101I(1) of the
O Criminal Procedure Ordinance, Cap. 221 (Charge 1); O
P P
(2) D2 to D5 are charged with one count of conspiracy to
Q commit misconduct in public office, contrary to Q
Common Law, sections 159A and 159C of the Crimes
R R
Ordinance, Cap. 200 and section 101I(1) of the
S Criminal Procedure Ordinance, Cap. 221 (Charge 2); S
T T
U U
V V
-3-
A A
B B
(3) D3 is charged with one count of conspiracy to doing an
C act tending and intended to pervert the course of public C
justice, contrary to Common Law, sections 159A and
D D
159C of the Crimes Ordinance, Cap. 200 and section
E 101I(1) of the Criminal Procedure Ordinance, Cap. 221 E
(Charge 3).
F F
G 2. D2 and D5 pleaded guilty to Charge 2 before another Court. G
After trial, D1 was convicted of Charge 1, D3 was convicted of Charges 1
H H
and 2 but acquitted on Charge 3, D4 was convicted of Charge 2. These are
I my reasons for sentence. I
J J
FACTS
K K
3. The facts are set out in detail in the Verdict and I do not
L L
propose to repeat them in detail here.
M M
4. In short, D1 and D2 were officers of the Correctional Services
N N
Department (CSD) and were public officers. At all material times, they
O were posted to Tong Fuk Correctional Institute (TFCI). Prisoners were O
assigned to work in different workshops during their remand, including the
P P
Construction and Maintenance Unit (CMO). D1 was the officer-in-charge
Q of the CMO whilst D2 was D1’s assistant. D3, D4 and D5 were all Q
R
prisoners in TFCI. At the time of the offences, D3 was still serving his R
sentence in TFCI whilst D4 and D5 had been released on 5 June 2020 and
S S
3 September 2020 respectively. D3, D4 and D5 have all been assigned to
T
work at the CMO under D1 and D2’s supervision over various periods. T
U U
V V
-4-
A A
B B
5. Under the Prisons Ordinance and the Prison Rules, CSD
C officers were not allowed to bring any unauthorized items into prisons for C
transmission to prisoners. CSD officers were also prohibited from being
D D
friends or becoming too familiar with prisoners and former prisoners.
E Further, CSD officers were prohibited from bringing their personal digital E
devices, including telephones into the prison area. Persons visiting
F F
prisoners were only allowed to bring authorized items, which did not
G include cigarettes or telephones. G
H H
6. The ICAC mounted a covert operation, where a micro audio
I recording device was planted on D1. Subsequently, the operation turned I
overt and all 5 defendants were arrested.
J J
K 7. Cigarettes are valuable property in prison. Prisoners can use K
their wages to purchase cigarettes through the arrangement of the CSD.
L L
However, prisoners are restricted to only 2 brands of cigarettes, namely
M “Wealth” and “Gentori”. CSD officers are allowed to bring cigarettes into M
prison for their own consumption, except for the brands “Wealth” and
N N
“Gentori”. However, CSD officers are only allowed to smoke in designated
O areas outside the prison area and are not allowed to give any cigarettes to O
prisoners.
P P
Q Q
8. When D3 was intercepted inside TFCI, a number of
R
prohibited articles were found in his possession, including a mobile R
telephone with a SIM card, lighters and unauthorized brands of cigarettes.
S S
T T
U U
V V
-5-
A A
B B
9. Under caution, D3 admitted that he had made the mobile
C telephone and had 2 SIM cards. Investigation revealed that the 2 SIM cards C
were used to make thousands of telephone calls and send thousands of SMS
D D
messages to different people, including D4, D5, D3’s family and friends.
E E
10. In the audio recording from the covert operation, D3 showed
F F
the mobile telephone to D1. D3 complained about the reception of one of
G the SIM cards and D1 promised to make enquiries on D1’s behalf from the G
service-providing companies. The audio recording from the service
H H
providers show that telephone calls were made from D1’s telephone to
I enquire about the reception of D3’s SIM card. A piece of paper was also I
found in D1’s home with the handwritten number of that SIM card.
J J
K 11. Investigation also revealed that D4 had set up a WhatsApp K
chat group after his release from prison. D2, D4 and D5 were all members
L L
of this chat group. In the chat group, D2, D4 and D5 spoke about the
M telephone calls they received from D3. In September and October 2020, M
D3 often asked D5 to top up his telephone SIM cards. During the same
N N
period, D3 also sent SMS messages to D5, asking him to tell D2 to
O purchase cigarettes for him. D5 then relayed all these messages to D2 in O
the WhatsApp chat group. D2 would inform D5 after he purchased the
P P
cigarettes. D3 also asked D5 to tell D2 to purchase prepaid telephone SIM
Q Q
card.
R R
12. In the chat group D4 asked D2 to tell D3 that D4 has dealt
S S
with $5,000 for D3. When D2 offered to tell D3 not to call, both D4 and
T
D5 disagreed. T
U U
V V
-6-
A A
B B
13. The evidence showed that D2 had purchased cigarettes for
C D3. D5 and his father had also topped up D3’s SIM card. Messages were C
exchanged between D4 and D2 about the supply of cigarettes to D3 in the
D D
chat group. D4 told D2 that he had 11 cartons of cigarettes for D3. D2
E promised to pass cigarettes to D3 whenever possible and told D4 that D3 E
was smoking e-cigarettes at the workshop.
F F
G THE DEFENDANTS’ BACKGROUND G
H H
D1
I I
14. D1 is 47 years old and has a clear record. He joined the CSD
J J
in 1999 as an Assistant Officer II and was promoted to Assistant Officer I
K in 2019. He was suspended from his duties after he was charged in the K
present case in 2021 and has been receiving about half his salary each
L L
month.
M M
15. D1 is married and has a 12-year-old son. His wife was a flight
N N
attendant but she lost her job as a result of the pandemic. D1 and his wife
O have agreed to divorce in December 2024. O
P P
D3
Q Q
R
16. D3 is 32 years old, single and educated up to Form 3 level. He R
has 3 previous convictions, all drug related. His last conviction was on 12
S S
September 2012 for one count of possession of dangerous drugs and one
T
count of trafficking in dangerous drugs. He was sentenced respectively to T
U U
V V
-7-
A A
B B
15 months’ and 14 years’ imprisonment to be served concurrently. D3 was
C serving the above sentence when he committed the present offences. C
D D
D4
E E
17. Counsel for D4 has not provided the Court with any personal
F F
details about D4 in his submissions. According to his antecedent statement,
G D4 is 40 years old and received education up to upper secondary level. He G
has 2 previous convictions, both related to drugs. His last conviction was
H H
on 1 August 2018 for Trafficking in Dangerous Drugs and he was
I sentenced to 5 years’ imprisonment. He committed Charge 2 shortly after I
he was released from prison.
J J
K 18. According to a letter from D4’s parents, D4 is the fourth child K
out of 5 children from a working class family. He had an electrician licence
L L
and used to work in a construction company.
M M
LEGAL PRINCIPLES
N N
O 19. The present case was brought and heard in the District Court. O
The jurisdictional limit for sentence is 7 years’ imprisonment. There are no
P P
sentencing guidelines or tariffs. The sentence for each case depends on its
Q Q
own facts.
R R
S S
T T
U U
V V
-8-
A A
B B
Cases Cited
C C
20. The Prosecution referred the Court to the following cases:
D D
E (1) HKSAR v Lee Ho Wai and Lam Hon Ki DCCC E
299/2021;
F F
G (2) HKSAR v Chow Koon Shing [2007] 3 HKLRD 10; G
H H
(3) HKSAR v Chan Yee Lap [2019] 5 HKLRD 187; and
I I
(4) HKSAR v Tang Kwai Man and another HCMA
J J
752/2012.
K K
21. Apart from Tang Kwai Man (supra), Counsel for D1 also
L L
referred to Secretary for Justice v Shum Kwok Sher [2001] 3 HKLRD 386
M and 香港特別行政區 訴 鄭俊傑 DCCC 1136/2021. M
N N
22. Other than HKSAR v Lee Ho Wai and Lam Hon Kei (supra),
O O
Counsel for D3 referred to:
P P
(1) R v Chan Wai Chiu & Ors [1994] 3 HKC 212;
Q Q
R (2) HKSAR v Chui Sing Chi Grace [2020] HKCFA 27; R
S S
(3) HKSAR v. Wong Koon Ho Titus HCMA 366/2013;
T T
(4) HKSAR v Lai Wing Kit & Au Pui Lan DCCC 409/2015;
U U
V V
-9-
A A
B B
C (5) HKSAR v Sin Kam Wah & Another CACC 520/2003; C
D D
(6) HKSAR v. Yuen Wai Chong HCMA 201/2014; and
E E
(7) HKSAR v Chan Yee Lap CACC 202/2017.
F F
G 23. Counsel for D4 referred to: G
H H
(1) Secretary for Justice v Schmitt [2008] HKCU 979;
I I
(2) Secretary for Justice v Chan Kit Bing [2001] 1 HKLRD
J J
844; and
K K
(3) HKSAR v Lam Ka Sin [2021] HKCA 180.
L L
M 24. HKSAR v Lee Ho Wai and Lam Hon Kei are the reasons for M
sentence for D2 and D5 in the present case. This was provided to inform
N N
the Court how the other 2 defendants in the same case were dealt with by
O another Judge. I will deal with this further below. O
P P
25. Apart from HKSAR v Lee Ho Wai and Lam Hon Kei, 香港特
Q Q
別行政區 訴 鄭俊傑 and HKSAR v Lai Wing Kit & Au Pui Lan cited by
R the Defence are District Court cases. They not authorities and are not R
binding on this Court. These sentencing cases do not establish any
S S
sentencing principles. Moreover, the sentences in cases with completely
T different facts have no reference value to the Court. T
U U
V V
- 10 -
A A
B B
26. In 律政司司長 對 唐健帮及另二人 CAAR 13/2022, [2023]
C HKCA 896, the Court of Appeal stated: C
D D
“35. 第一，雙方於本案存檔了多份區域法院的判刑理由
書，希望藉此支持己方立場。本庭在 律政司司長 訴 溫達
E 揚一案第 27 段已指出： E
F 「…因為這些判刑，從來就沒有經過上訴而被肯 F
定，也沒有什麼量刑原則可言，對量刑既沒有約束
G
力也沒有參考價值，根本起不了任何指導作用，根 G
本不應稱之為『案例』…」
H H
況且，「有意圖而傷人」及「暴動/非法集結」罪的案情，
以及某被告人的背景、犯案動機、於該案所扮演的角色等
I 事項，可謂千變萬化，任何單純對案件判刑作出比較的做 I
法，都不能協助本庭處理原審判刑是否恰當這個議題。歸
J 根究底，控罪要旨（gravamen of the offence）及適用的量 J
刑因素才是重點所在，而非個別案件的判刑。”
K K
27. In HKSAR v Lau Chun Yuk and Others CACC 243/2021,
L L
[2023] HKCA 1098, the Court of Appeal specifically stressed yet again:
M M
「51. Before we conclude, we would like to make a special
N mention. The applicants had, in their written submissions, cited N
the sentencing at first instance in another No. 2 Bridge riot case
of the District Court (HKSAR v 陳 起 行 (Chan Hay Hang)
O O
(transliteration) [2021] HKDC 874) as the pivot of the
application of Choy Ka Fai in support of the proposition that the
P starting point in the present case was too high, but were P
ultimately dissuaded. This Court pointed out previously on
many occasions, and further reiterated this year in Secretary for
Q Justice v Tong Kin Pong and two others [2023] HKCA 896 (date Q
of Reasons for Judgment: 25 August 2023): sentencing at first
R instance, which has not gone through appeal, is not binding on R
courts of the same level, nor is it of any reference value to the
appellate court, and therefore should not be relied upon by the
S legal profession as a basis for appeal.」 S
T T
U U
V V
- 11 -
A A
B B
D1
C C
28. Counsel for D1 submitted that D1 has always strived to excel
D D
and complete his work in the CSD to the best of his ability. His
E performance was recognized by his supervisor and he was promoted to E
Assistant Officer I in 2019.
F F
G 29. In HKSAR v Chow Koon Shing, the Court stated: G
H H
“23. … The Magistrate considered that to ensure public
confidence in law enforcement officers was maintained, the
I courts must take a serious view of police officers who abused I
their positions. The Appellant, a formerly upstanding officer,
had had a significant fall from grace. There was evidence of
J J
his good character before the court, but as the Appellant was
a police officer that was neither surprising, nor of much
K mitigatory weight. K
24. I share the view of the Magistrate that this was a serious
L offence; the Appellant abused his position as a police officer and L
committed the offence on magistracy premises …
M M
26. The wilful misconduct in this case was “serious, not
trivial, having regard to the responsibilities of the office and the
N office holder, the importance of the public objects which they N
served and the nature and extent of the departure from those
O
responsibilities.” (Sin Kam Wah & Another and HKSAR [2005]2 O
HKLRD 375)
P 27. … his behaviour brings the police force into disrepute P
and, to the extent that the offence was carried out in the
magistracy building, could affect also the public perception of
Q Q
the judicial system.”
R R
30. In HKSAR v Chan Yee Lap, the Court of Appeal stated:
S S
“23. … Institutions under the Correctional Services
T Department are set up to punish and educate inmates who have T
flouted the law, so that they will obey the law and observe
discipline. It is imperative that the Correctional Services
U U
V V
- 12 -
A A
B Department has a rigorous procedure in place to deal with B
visitors and prisoners’ property. The appellant conspired with a
C staff member of the Correctional Services Department and other C
inmates to strike at the established procedure of the Department
by deceit …”.
D D
31. Counsel submitted that D1’s marriage has deteriorated as a
E E
result of D1 being investigated by the ICAC. D1 and his wife agreed to
F F
divorce in December 2024.
G G
32. The adverse effect of imprisonment upon an offender’s family
H H
is not a factor normally to be taken into account in sentence. In Sentencing
I in Hong Kong, 11th edition, the author explained: I
J J
“[30-130] Family circumstances are often prayed in aid in
mitigation by convicted persons. However, ‘family hardship
K which is usually attendant upon the conviction is to be viewed K
as a part of the price an accused must pay for the crime’: HKSAR
v Li Kwok-ching [2005] HKCU 1702 (HCMA 1132/2005, 30
L November 2005, unreported). Those who commit offences L
should keep in mind the ‘principle that the adverse effect of
M imprisonment upon an offender’s family is not a factor normally M
to be taken into account: HKSAR v Chan Kin-chung [2002] 4
HKC 314, 321. Family circumstances, in any event, ‘are matters
N which a wise man would take into consideration before he N
commits an offence and not after’: HKSAR v To Yiu-cho [2009]
O
5 HKLRD 309, 311…. O
[30-131] An accused must appreciate that his family will
P suffer ‘if he is caught and convicted’: R v Shipra [1988] HKC P
412 … If the accused is convicted and sentenced as a rapist this
may have unfortunate consequences for his family, but ‘this is
Q Q
often the tragedy in such cases’: HKSAR v Chan Tung-hing,
Band [2010] 3 HKC 304, 307; HKSAR v CYL [2016] 3 HKC
R 531, 537. In HKSAR v Shum Chung-wai [2002] 2 HKLRD 81, R
87, Lugar-Mawson J said: ‘This court has said many times that
family circumstances should be disregarded, particularly when
S sentences for serious offences are concerned’… S
T [30-132] if police officers commit serious offences, the gravity T
of their conduct may outweigh any sympathy the court may feel
for their families: HKSAR v Lau Kwok and Ors [2003] HKCU
U U
V V
- 13 -
A A
B 615 (CACC 529/2001, 30 May 2003, unreported). … If serious B
crime is involved, personal factors may have to be disregarded:
C Attorney General v Chan Chi Mei-wah [1990] 1 HKLR 190, C
193…”
D D
33. Counsel further submitted that D1 was suspended from his job
E duties since he was charged in 2021 and has only been receiving half of his E
salary. His wife, who was a flight attendant, lost her job as a result of the
F F
pandemic. D1 found himself emotionally disturbed and consulted
G psychiatrists for treatment. In July 2021, he was diagnosed to be suffering G
H
from Adjustment Disorder with Depressive Symptoms, with low mood, H
anxiety, worsened sleep and appetite, negative cognitions and fleeting
I I
suicide ideas. The conclusion was that D1’s mental problem was due to his
J
being charged by the ICAC and the impact on his family. J
K K
34. In Court, Counsel conceded that ill health is not a mitigating
L factor. In Sentencing in Hong Kong, 11th edition it was explained: L
M M
“[30-174] The ill health of an accused ‘is not a license to
commit crime’: Clarkson v R (2007) 171 A Crim R 1, 49.
N N
[30-175] In Yip Kai-foon v HKSAR [2000] 1 HKC 335, 339 …,
Li CJ said: ‘Under the guidelines and principles evolved by the
O O
courts, medical grounds will seldom, if ever, be a basis for
reducing the sentence for crimes of gravity’.…
P P
[30-176] The objective criminality of particular offences will
often be such that the sentence of imprisonment which is
Q otherwise appropriate is necessary irrespective of health factors: Q
HKSAR v Tong Fuk-sing [1999] 3 HKC 332, 336 … The
R Correctional Services Department operates ‘excellent’ medical R
facilities: HKSAR v Wong Chi-choi [2005] HKCU 1443 (HCMA
628/2005, 6 October 2005, unreported). In HKSAR v Woo Shun-
S cheong and Anor [1998] HKCU 2082 (CACC 120/1998, 10 S
December 1998, unreported), an aged offender who complained
of ill health was told that his condition could be ‘adequately dealt
T T
with in prison’.
U U
V V
- 14 -
A A
B [30-177] In HKSAR v Tam Yuen-tong [2007] 1 HKLRD 894, B
896 …, McMahon J made the point that ‘as a matter of reality
C most prisoners receive medical attention in prison of an equal or C
better standard than they would otherwise receive’. In HKSAR
v Chan Kau-tai [2008] 3 HKC 78, 89 …, it was noted that the
D accused who needed a liver transplant was being attended to in D
the custodial ward at Queen Mary Hospital and was ‘in good
E
hands’. Save in the rarest of cases, a ‘prisoner’s medical E
condition is not a matter to which this court will have regard for
mitigation of a proper sentence’: R v Ho Mei-Lin [1996] 4 HKC
F 491, 493 … F
[30-180] In Attorney General v So Chee-kong, Eddie [1994]
G G
HKCU 75 (CAAR 9/1992, 8 June 1994, unreported), the court,
having been told that if the sentence of the accused was to be
H extended his mental health would suffer, responded that ‘it H
would not, we are satisfied, be proper for us to give weight to
possible deterioration in his health. It is a matter for the Prison
I Authorities to see that he receives proper medical attention’ I
(approved in HKSAR v Cheung Suet-ting [2010] 6 HKC 249,
J 261). Matters of that type do not fall for consideration as an act J
of mercy: HKSAR v Lau Mei-mei [2002] HKCU 240 (CACC
338/2001, 1 March 2002, unreported) …”
K K
35. Counsel also submitted that D1 has been a law-abiding citizen
L L
for 47 years and has a clear record.
M M
N
36. D1 is only 47 and can hardly be described as old. In N
Sentencing in Hong Kong, 11th edition, it was explained:
O O
“[30-32] The point at which the maturity of the accused is
P P
relevant as mitigation is sometimes said to have been reached at
the age of 60: R v Tsui Lai-ying and Ors [1987] 5 HKLR 857,
Q 881… However, in HKSAR v Chow Chi-ming [2006] HKCU Q
398 (HCMA 1247/2005, 21 February 2006, unreported), Leong
DJ said it was generally accepted that ‘old age, unless extremely
R R
advanced in age, is generally not a mitigating factor’. In HKSAR
v Lau Yuk-huen [2008] HKCU 864 (CACC 37/2008, 5 June
S 2008, unreported), it was said that the 66-year-old accused was S
not to be regarded as old.”
T T
U U
V V
- 15 -
A A
B B
37. As for D1’s clear record, Sentencing in Hong Kong, 11th
C Edition stated: C
D D
“[7-5] In R v Chan Ka-choi [1988] 1 HKLR 530, 534 … the
traditional approach of the courts to the issue of clear record was
E explained: E
Once the offender has been found guilty of the offence,
F the court must, leaving aside personal circumstances and F
previous record, make an assessment as to the proper
G sentence to be imposed given the type of offence and the G
circumstances of its commission. When this has been
done, the court must give credit for absence of previous
H convictions and for personal circumstances. H
[7-6] Credit for a clear record is, however, by no means a
I I
given. Much will depend upon the nature of the offence and the
position of the offender. In HKSAR v Law Num-chun [2014] 6
J HKC 606, 617, Lunn VP said: J
[T]he principle is that good character is not a factor
K K
relevant generally to determining the starting point to be
taken for sentence in serious criminal offences for which
L a deterrent sentence is required.… L
[7-10] The good character of the accused is, moreover, of little
M relevance if the offence involves corruption: HKSAR v Wong M
Yiu-kuen [2001] 1 HKC 486, 491. In R v Dearnley and
N Treapleton [2001] 2 Cr App R (S) 201, 203, the point was made N
that corrupt officials will invariably be of good character, for if
it were otherwise, they would ‘not be in a position from which
O to behave in a fashion which strikes at the principle of fair O
competition’. …
P P
[7-18] The relevance of good character is related to the
circumstances of the accused. Good character sometimes refers
Q to no more than an absence of previous convictions, and this is Q
not a basis for an additional discount: HKSAR v Wong Kam-
shing, Jackie [2010] 4 HKC 580, 584. At other times, it may
R R
refer to something altogether more positive. Good character can
be recognized as a factor in mitigation ‘where positive good
S character is shown by, for example, the provision of unpaid S
service to the community, as opposed merely to the absence of
a criminal record’: Secretary for Justice v Tso Tsz-kin [2004] 2
T HKC 139, 144. The mere absence of criminal convictions must T
not be confused with positive good character, and the simple
U discharge of duties in a proper manner ‘does not constitute what U
V V
- 16 -
A A
B is to be regarded as positive good character’: HKSAR v Leung B
Ping-nam [2007] 5 HKC 413, 427; HKSAR v Chung Ka-hung
C [2010] HKCU 738 (CACC 349/2008, 31 March 2010, C
unreported). …
D [7-26] The proposition is sometimes advanced that a deterrent D
sentence ought not to be imposed upon a first offender: Ho Kau
E
v R [1978] HKLR 197, 198 … However, in HKSAR v Tai Chi- E
sing and Ors [2016] 2 HKC 436, 445, Barnes J said: ‘I do not
accept that there is such a sentencing practice that a deterrent
F sentence should not be passed on a man of clear record. Whether F
a deterrent sentence is called for, even for a first offender, must
be case specific’. In HKSAR v Chan Chi-ming and Anor [2003]
G G
3 HKLRD 654, 657 …, the court said:
H It is generally true that wherever possible a court will H
strive to avoid imposing a sentence of deterrence upon a
first offender. That is because it can be said of many
I mature first offenders particularly that their I
transgressions went against the grain of their previous
J lives. J
[7-27] However, the existence of a clear record in a sufficiently
K serious case can never of itself be enough to save an accused K
from an immediate sentence of imprisonment: Securities and
L
Futures Commission v Choy Wai-zak [2003] 1 HKC 30, 35. … L
In other words, previous good character is not a bar to the
imposition of a deterrent sentence if the gravity of the offence
M justifies it: HKSAR v Chan Mo-kong [1998] 1 HKLRD 678, M
680 …”
N N
38. Counsel relied on Secretary for Justice v Shum Kwok Sher
O O
[2001] 3 HKLRD 386 and pointed out that D1 would lose his retirement
P gratuity and pension of about HKD 3 million and would also face a P
disciplinary hearing. In that case, the defendant was a senior public servant.
Q Q
He used his position to provide preferential treatment in the award of
R valuable Government contracts to companies owned by his extended R
family. He was sentenced to 4 concurrent sentences of 9 months’
S S
imprisonment. The Government sought a review of the sentence, claiming
T that the Judge had taken into account irrelevant mitigation and that he erred T
in equating the defendant’s conduct to “small scale corruption”. The Court
U U
V V
- 17 -
A A
B B
of Appeal stated that the appropriate sentence should have been not less
C than 3 years: C
D D
“39. Dealing firstly with … somewhat muted criticism of the
judge for giving any weight to the Respondent's lost retirement
E benefits and to the sad results of the fall from grace suffered by E
all his family, we consider that the unusual circumstances of the
case were such that they inevitably contributed to the
F punishment received by the Respondent. Accordingly, in our F
view the judge was right to have taken these factors into account,
G provided they were not given too much weight. The Respondent G
knew what he was doing and for many years he took a calculated
risk that he would not be found out which, in the end, did not
H pay off. H
40. As to other criticisms of the sentencing remarks, we
I I
consider that these had merit. The offences may not have
resulted in the Government's financial loss but the Respondent's
J favouritism effectively cut out properly qualified companies J
from acquiring the contracts which, as a result, will have lost
considerably when their tenders for the work were rejected. It
K K
was also beside the point that the Respondent did not benefit
financially. If he had done so, an additional or replacement
L offence would have presumably been brought under section 4 of L
the Prevention of Bribery Ordinance which is not what the
Respondent was being sentenced for. …”
M M
N
39. In assessing sentence, I will bear in mind that D1 may face a N
disciplinary hearing, as a result of which, he may lose his job and pension.
O O
However, the consequences of committing this offence were obvious.
P However, D1 took a calculated risk that he would not be found out, a risk P
which did not pay off in the end. The loss of his job and his pension carries
Q Q
limited weight in mitigation.
R R
40. Counsel also cited 香 港 特 別 行 政 區 訴 鄭 俊 傑 . The
S S
defendant was convicted of one charge of misconduct in public office after
T trial. He provided preferential treatment by awarding Government T
contracts to a company owned by his extended family. Counsel submitted
U U
V V
- 18 -
A A
B B
that the Deputy Judge considered a suspended sentence as a viable
C sentencing option although the defendant was convicted after trial. The C
Deputy Judge stated that the Defendant was convicted 5 years after the
D D
commission of the offence; he was suffering from mental illness; he had a
E clear record; the risk of reoffending was low; the defendant had made E
considerable contributions to the Hong Kong Post and the defendant had
F F
no financial gain.
G G
41. Counsel submitted that the background of the defendant in
H H
that case bears “assemblance” to D1 in the present case. Firstly, as stated
I above, this was a District Court case. It is not an authority and is not I
binding on this Court. Secondly, the facts of that case are very different
J J
from the present case. Thirdly, as was pointed out above, the Court must
K assess the sentence according to the gravamen of the offence. The K
background of the defendant carries little weight when the court is dealing
L L
with serious offences. I have already dealt with the law in relation to a clear
M record, ill health, the impact of the sentence on the defendant’s family and M
the absence of financial gain above. I will not repeat them here.
N N
O 42. As for the lapse of time between the commission of the O
offence and conviction, I recognize that a delay in bringing an accused to
P P
justice is normally recognized as a mitigating factor that can be taken into
Q Q
account in sentence: Mills v HM Advocate General for Scotland 2002 SCR
R
860, 877. However, as was stated in Sentencing in Hong Kong, 11th R
edition:
S S
“[30-84] This usually arises where the prosecution is at fault
T T
for the delay: HKSAR v Lau Kin-yu [2003] HKCU 251 (HCMA
391/2002, 13 March 2003, unreported). Such a delay might
U U
V V
- 19 -
A A
B cause the accused to be ‘under the strain of legal proceedings for B
a very long time’: Attorney General v Ling Kar-fai (No.2) [1997]
C 2 HKC 651, 654. If the accused is himself responsible for the C
delay, he cannot expect to benefit: HKSAR v Chan Chun-chuen
(CACC 233/2015, 30 October 2015, unreported).
D D
[30-85] In Secretary for Justice v Schmitt [2008] HKCU 979
E
(CAAR 12/2006, 17 June 2008, unreported). Stuart-Moore VP E
noted that there is a delay in every case before trial, and that the
‘real question is whether there has been an unreasonable delay,
F through the fault of a defendant, which has contributed to his F
punishment’. The court will also need to be satisfied that the
delay has ‘resulted in unfairness to the accused’: R v L (1995) 84
G G
A Crim R 142, 145. If there is a delay resulting from a very
extensive (and necessary) investigation, the accused cannot
H expect to benefit therefrom: Secretary for Justice v Ip Hon-ming H
and Anor [2015] 1 HKC 143, 168.
I [30-86] In HKSAR v Law King-yip and Ors [2004] HKCU I
1391 (CACC 369/2003, 14 October 2004, unreported), (as
J approved in HKSAR v Cheung Suen-ting [2010] 6 HKC 249, J
257), complaint was made, by one of several persons convicted
of conspiracy to defraud, about the delay of over 30 months
K between the dates of arrest and trial. It was further argued that K
the trial of 108 hearing days had constituted an additional
L
hardship, ‘worse’, so it was said, ‘than prison’. In rejecting these L
factors as mitigation, the court commented that the delay had to
be viewed in the context of the size of the investigation that the
M police had to conduct. The conspiracy had lasted for more than M
a year, there were many victims, expert witnesses had to be
consulted, and the prosecution was not at fault for the delay. The
N N
trial has been listed for 20 days, but overran because the defense
had rigorously contested the case. In these circumstances, Lunn
O J said the court was satisfied that ‘neither the delay in the O
commencement of proceedings nor the length of the trial itself
are factors relevant to the sentence imposed’.
P P
[30-95] In Scook v R (2008) 185 A. Crim R 164, 176 …, Buss
Q JA sought to identify the ‘guiding principles’ in relation to delay, Q
although these were not intended to be ‘exhaustive or
inflexible’; these were cited with approval in HKSAR v Chui
R Chi-wing [2013] HKCU 2420) (CACC 243/2012, 18 October R
2013, unreported), His Honour identified seven matters as being
of relevance:
S S
First, the delay is not, of itself, a mitigating factor.
T T
Secondly, delay will not ordinarily be a mitigating
factor if it has been caused by difficulties in
U U
V V
- 20 -
A A
B detecting, investigating or proving the offences B
committed by the offender, and the period of the
C delay is reasonable in the circumstances. C
Thirdly, delay will not ordinarily be a mitigating
D factor if it is caused by the offender’s obstruction or D
lack of cooperation with the State, prosecuting
E
authorities, or investigatory bodies, but the E
offender’s reliance on his or her legal rights is not
obstruction or lack of cooperation for this purpose.
F F
Fourthly, delay will not ordinarily be a mitigating
factor if it results from the normal operation of the
G G
criminal justice system, including delay as a result of
the offender or a co-offender exercising his or her
H rights; for example, interlocutory appeals and other H
interlocutory processes,
I Fifthly, delay may be conducive to the emergence of I
mitigating factors; for example, if, during the period
J of delay, the offender has made progress towards J
rehabilitation or other circumstances favorable to
him or her have emerged.
K K
Sixthly, delay (not being delay of the kind described
L
in the second, third and fourth guiding principles) L
will ordinarily be a mitigating factor if:
M (1) the delay had resulted in significant stress for M
the offender or left him or her, to a significant
degree, ‘in uncertain suspense’; or
N N
(2) during the period of delay the offender has
O adopted a reasonable expectation that he or O
she would not be charged, or a pending
prosecution would not proceed, and the
P offender has ordered his or her affairs on the P
faith of that expectation,
Q Q
Seventhly, delay caused by dilatory or neglectful
conduct by the State, prosecuting authorities or
R investigatory bodies may result in a discount of the R
sentence that would otherwise be imposed on the
offender, if the court thinks it an appropriate means
S S
of marking its disapproval of the conduct in question.
T T
U U
V V
- 21 -
A A
B B
43. There is no suggestion that there was any delay in the arrest
C or the prosecution of D1 in the present case. The trial spanned a very C
lengthy period because of the Defence’s complaint about Mr Li Siu On.
D D
This was completely unforeseeable. The prosecution offered 4 witnesses
E for cross-examination in relation to the complaint to enable the Defence to E
consider their position in relation to the potential application for a
F F
permanent stay and to ensure that the defendants had a fair trial. The case
G was repeatedly adjourned because of the ill health of Mr Li Siu On (the G
subject of the complaint). However, his absences were all supported by
H H
medical certificates. It also took time to hear and decide on the subsequent
I application for permanent stay. There was clearly no unreasonable delay in I
the present case.
J J
K 44. Lastly, counsel cited HKSAR v Tang Kwai Man: K
L L
(1) The 2 appellants were CSD officers who were charged
M with one count of misconduct in public office. They M
were responsible for the supervision of some inmates
N N
who had been released from the drug addiction
O treatment center; O
P P
(2) The first appellant had (i) failed to visit some inmates
Q Q
at their homes or work places as stated on the
R
corresponding records of supervision; (ii) absented R
himself when some inmates provided their urine
S S
samples; (iii) submitted records of supervision with
T
incorrect dates, times, places and/or participating T
officers and (iv) failed to record in the records of
U U
V V
- 22 -
A A
B B
supervision that an inmate had admitted to taking
C drugs; C
D D
(3) The 2nd appellant had (i) failed to visit some of the
E inmates at their homes or workplaces as stated in the E
records of supervision; (ii) absented himself when
F F
some of the inmates provided their urine samples; (iii)
G failed to deliver the urine samples provided by some G
inmates for drug examination; (iv) submitted the
H H
records of supervision with incorrect dates, times,
I places and/or participating officers; and failed to record I
in the records of supervision when one of the inmates
J J
admitted that he had taken dangerous drugs;
K K
(4) Each of the appellants was charged with one count of
L L
misconduct in public office. They both pleaded guilty
M and the magistrate sentenced each appellant to 3 M
months’ imprisonment. The appellants appealed
N N
against that sentence. The appeal was dismissed.
O O
45. Counsel submitted that the gravity of misconduct in Tang
P P
Kwai Man was more considerable than the present case. D1 did not make
Q Q
a profit from the offence and it was a one-off incident.
R R
46. I disagree. Firstly, the facts of Tang Kwai Man are very
S S
different from those of the present case. In those circumstances, the
T
sentence in that case is not a reference for the sentence in the present case. T
U U
V V
- 23 -
A A
B B
Further, there are marked differences between Tang Kwai Man and the
C present case: C
D D
(1) The appellants in Tang Kwai Man were responsible for
E the supervision of inmates who served their sentences E
in the drug addiction treatment center. In other words,
F F
those inmates have been convicted of relatively minor
G offences. In the present case, D3 was serving a 14 G
years’ prison sentence for trafficking in dangerous
H H
drugs;
I I
(2) In Tang Kwai Man, all the inmates have finished
J J
serving their sentence. In the present case, D3 was a
K serving prisoner; K
L L
(3) The purpose of supervision after release from a drug
M addiction treatment center was rehabilitation. The M
purpose in prison was punishment and education to
N N
obey the law;
O O
(4) Each of the appellants faced a charge on their own. In
P P
the present case, not only was there a conspiracy, the
Q Q
co-conspirator was a serving prisoner;
R R
(5) In Tang Kwai Man case, the offences were committed
S S
in the open community whilst the offence in the present
T
case was committed inside the prison. T
U U
V V
- 24 -
A A
B B
47. I note that D2 in the present case was also a CSD officer and
C that the learned Judge adopted 12 months as a starting point. C
D D
48. Firstly, D1 and D2 faced different charges and the facts
E against them are different. The learned Judge came to the conclusion that E
the facts relating to D2 came within the lower end of the spectrum in
F F
relation to the offence of misconduct in public office. In assessing sentence,
G the learned Judge considered a number of cases cited to him. None of the G
cases cited to the learned Judge involved a telephone. It does not appear
H H
that the learned Judge has been addressed on the significance of a prisoner
I being in possession of a telephone inside prison. I
J J
49. In my judgment, the wilful misconduct of which D1 stands
K convicted in the present case was serious, not trivial: K
L L
(1) As was stated in Chan Yee Lap, institutions under the
M CSD are set up to punish and educate inmates who have M
flouted the law, so that they will obey the law and
N N
observe discipline. The behaviour of D1 makes a
O mockery of the prison system and brings the CSD into O
disrepute;
P P
Q Q
(2) Instead of punishing and educating D3, D1 conspired
R
with D3 to flout the law inside prison; R
S S
(3) As a CSD officer, D1 was entrusted with the duty to
T
supervise and discipline prisoners. His behaviour was T
in breach of the trust reposed in him by the CSD;
U U
V V
- 25 -
A A
B B
C (4) There is no dispute that D1 was the officer-in-charge of C
the CMO. He was of a more senior rank than D2;
D D
E (5) Not only did D1 allow D3 to continue with the E
possession and use of the telephone, he took active
F F
steps in an attempt to enhance the use of the telephone;
G G
(6) The offence was committed inside prison;
H H
I (7) Telephones are prohibited in prisons for a number of I
reasons:
J J
K (i) the possession and use of a telephone by K
prisoners posed a security risk to the prison;
L L
M (ii) convicted persons are remanded in prison so that M
they can cut ties with bad elements in society.
N N
The possession and use of a telephone inside
O prison completely defeats that purpose; O
P P
(iii) telephone calls inside prison are arranged by the
Q Q
CSD and are monitored to ensure that prisoners
R
are not continuing with their criminal activities. R
The possession and use of a telephone by a
S S
prisoner inside prison makes a mockery of that
T
system; T
U U
V V
- 26 -
A A
B B
(iv) D3 was serving 14 years’ imprisonment for
C trafficking in dangerous drugs. C
D D
(8) D1 has not demonstrated an iota of remorse for
E committing the offence. When he was arrested by the E
ICAC, he instructed his helper to destroy or dispose of
F F
all his digital devices in an attempt to obstruct the
G investigation. He was convicted after trial. After G
conviction for Charge 1, he still fails to take
H H
accountability of his own criminal behaviour. He is
I blaming the failure of his marriage and the possible loss I
of his employment, gratuity and pension on the ICAC
J J
investigation;
K K
(9) I do not accept that this was a one-off incident. In the
L L
audio recording, although D1 was surprised by the
M miniature size of the telephone, he clearly knew that D3 M
had a telephone prior to the recorded conversation. D3
N N
did not even have to tell D1 that he had a telephone. He
O only complained about the reception. O
P P
50. Counsel relied on 鄭俊傑 and suggested that this Court could
Q Q
consider a suspended sentence. That suggestion is wholly untenable. That
R was a sentencing case in the District Court. It is not binding on this Court, R
does not lay down any sentencing principles and the facts are entirely
S S
different. In Sentencing in Hong Kong 11th edition, it was explained:
T T
“[1-108] The position of the offender can have a direct impact
U upon sentence in some circumstances. The culpability of an U
V V
- 27 -
A A
B offender from a good background may be regarded ‘as the B
greater particularly if he is a person to whom others look for an
C example’: Attorney General v Chan Chi-yin and Anor [1988] C
HKC 44, 46. Professional people have a duty to uphold public
standards as well as the standards of their profession: Attorney
D General v Tai Chin-wah [1994] 2 HKCLR 81, 93. A breach of D
trust by a person in authority may require a deterrent sentence:
E
R v Kwok Yee, William (CACC 452/1993, 4 March 1994, E
unreported).
F [1-109] In HKSAR v Leung Chun-man (CACC 156/2003, 17 F
October 2003, unreported), a serving police officer was
sentenced to 21 months’ imprisonment for corruption offences.
G G
Cheung JA said ‘For a public servant who was responsible for
the enforcement of law and order in Hong Kong, his
H involvement with these offences are clearly aggravating factors’. H
[1-110] In HKSAR v Hui Man-tai [2008] HKCU 1135
I (CACC 334/2007, 22 July 2008, unreported), it was said that I
police officers who break the laws they are entrusted to uphold
J have ‘to be made examples in terms of deterrent sentencing so J
that others will not be tempted to follow along similar lines and
so that public confidence will be maintained’. Those who are
K entrusted to uphold the law but break it in ‘a deliberate and K
shocking way’, must expect ‘an immediate sentence of
L
imprisonment’: HKSAR v Wong Cho-shing and Ors [2019] 4 L
HKC 401 …. It is, moreover, an aggravating factor for a serving
police officer to commit serious offences while acting in the
M course of his duty: HKSAR v Yuen Ka-kui, Chris [2013] 5 HKC M
64. …”
N N
51. In my judgment and taking into account the possibility of a
O O
loss of gratuity and pension, the appropriate starting point for D1 in Charge
P 1 is 18 months’ imprisonment. P
Q Q
52. D1 was convicted after trial and has not shown a shred of
R remorse. As explained above, nothing put forward on his behalf amounts R
to mitigation. Accordingly, he is sentenced to 18 months’ imprisonment
S S
for Charge 1.
T T
U U
V V
- 28 -
A A
B B
D3
C C
53. Counsel cited a number of cases involving misconduct in
D D
public office. As stated above, Lai Wing Kit was a District Court case and
E is not binding on this court. The facts of all of the cases are wholly different E
from those of the present case. The charges in Chui Sing Chi Grace, 黃冠
F F
豪, Sin Kam Wah and 袁慧妝 were not conspiracy. Chan Yee Lap involved
G conspiracies but none of the cases cited involved a telephone. I did not find G
any of the cases cited to be of any assistance.
H H
I
54. Counsel drew the Court’s attention to the sentence of D2 and I
J
D5 and that the Court found that Charge 2 was a relatively minor category J
within the spectrum of the offence of misconduct in public office. She also
K K
relied on R v Chan Wai Chiu in relation to disparity of sentences. She
L submitted that the actual charge was misconduct in public office which was L
committed by D1 and D2. D3 was in a passive position and his culpability
M M
should be regarded as lower than that of D1 and D2 as he was only a
N prisoner and had no authority over D1 and D2. Counsel further submitted N
that no detriment is suffered by any victim and the chance of reoffending
O O
is remote.
P P
55. I agree with the principles in relation to the disparity of
Q Q
sentences but I wholly disagree with Counsel’s submissions:
R R
(1) As explained above, I take a very serious view of a
S S
prisoner’s possession and use of a telephone in prison.
T It posed a risk to security of the prison and makes a T
complete mockery of the prison system;
U U
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A A
B B
C (2) Charges 1 and 2 are not misconduct in public office. It C
is conspiracy to commit misconduct in public office.
D D
That misconduct in public office involves a breach of
E trust on the part of D1 and D2 and adversely affects E
public confidence in the prison system;
F F
G (3) There were two conspiracies in the present case; D1 and G
D2 were each part of one of the conspiracies, whilst D3
H H
was part of both conspiracies;
I I
(4) Theoretically, D1 and D2 had authority over D3.
J J
However, in the present case, they actually became
K D3’s willing servants, catering to D3’s whims and K
demands;
L L
M (5) Not only did D3 involve 2 CSD officers, he also M
involved 2 other prisoners who have just finished
N N
serving their prison sentences;
O O
(6) D3 was the instigator of both conspiracies. He
P P
constructed the telephone; had 2 SIM cards brought
Q Q
into prison for his use; used the telephone to give
R
instructions to D4 and D5, who in turn passed on R
instructions to D2; gave instructions to D1 to check his
S S
telephone reception and to try to improve the same and
T
used the telephone to place bets and obtain Mark 6 T
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A A
B B
results. In other words, D3 was calling all the shots and
C was the mastermind of both conspiracies; C
D D
(7) D3 committed 2 offences whereas each of the other
E defendants only committed one offence; E
F F
(8) D3 flouted the law whilst serving a long term
G imprisonment for serious offences; G
H H
(9) D1 and D2 are likely to lose their jobs, gratuity
I and/pensions. D3 has no such loss. I
J J
56. In my judgment, in view of D3’s role, his culpability for
K Charge 1 is at least equal to that of D1 and is even graver than that of D2. K
For each of Charges 1 and 2, I adopt a starting point of 18 months.
L L
M 57. D3 was convicted of both charges after trial. He has not M
demonstrated any remorse. There are no mitigating circumstances. The
N N
sentence of each of Charges 1 and 2 is 18 months.
O O
58. I note that both conspiracies were carried out by D3 in tandem,
P P
at the same time and in the same location. However, the conspiracies are
Q Q
distinct and involve different people; the sentences should be wholly
R
consecutive. However, I must consider the question of totality. Concurrent R
sentences are only appropriate for offences that can be said to have been
S S
committed in the course of a single transaction: Attorney General v Cheung
T
Pit Yiu [1989] 2 HKLR 12, 14. If offences are discrete and independent, it T
is more likely that ‘the sentence for one offence cannot comprehend the
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A A
B B
criminality of the other’: Vaovasa v R (2007) 174 A Crim R 121.
C Commission of multiple offences is an aggravating factor and make the C
charges more serious: See HKSAR v Ngai Yiu Ching [2011] 6 HKC 238.
D D
E 59. In the light of the facts of the present case, I am of the view E
that an overall sentence of 24 months is appropriate. Accordingly, I order
F F
that 6 months of the sentence in Charge 2 be served consecutively to
G the sentence for Charge 1, i.e. an overall sentence of 24 months. G
H H
D4
I I
60. Counsel cited Secretary for Justice v Schmitt and urged the
J J
Court to consider the time it took for the trial to conclude. I have already
K dealt with this case above. There was no unreasonable delay in the present K
case.
L L
M 61. Counsel then repeated parts of the messages between the M
Defendants and submitted that D4 played a very minor or peripheral role
N N
in the conspiracy. I disagree with that submission. It was D4 who set up
O the WhatsApp group to facilitate the execution of the conspiracy. When O
D2 offered to ask D3 to stop calling D4 and D5, D4 refused the offer. D4
P P
took care of $5,000 for D3; he also asked D2 to bring cigarettes into prison
Q Q
for D3. D4 told D2 that he had 11 cartons of cigarettes for D2 to pass on to
R
D3. R
S S
62. Counsel cited Secretary for Justice v Chan Kit Bing [2001] 1
T
HKLRD 844. He submitted that D4 has positively organized his affairs, T
has been employed in several construction projects with a view to
U U
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A A
B B
rehabilitating himself back into society before this offence; he was also a
C charitable and hardworking man. C
D D
63. Counsel’s submission is self-contradictory. On the one hand,
E he submitted that D4 was determined to rehabilitate himself. On the other E
hand, he stated that D4 was trying very hard to hold on to his friendship
F F
with D3 and D5. There is no dispute that D4 was discharged from prison
G on 6 May 2020. He set up the WhatsApp group to facilitate the conspiracy G
on 4 September 2020, i.e. within about 4 months of his release. I also do
H H
not accept that D4 donated to charity. Letters were produced by World
I Vision to show that the charity received donations in D4’s name between I
2017 and 2023. According to his criminal record, D4 was serving a 5-year
J J
prison term from 1 August 2018. He could not have made the donations
K from 2018 to 2020. K
L L
64. Counsel also referred to paragraph 31 of HKSAR v Lam Ka
M Sin [2021] HKCA 180: M
N N
“There is an element of compassion when addressing the object
of rehabilitation, and this is normally displayed by the
O O
recognition of the suffering or misfortune of an offender.
However, the offender must have shown that he has dissociated
P himself from his past wrongful conduct, and has committed P
himself to the future respect of the law. Where an offender has
reformed and is not likely to reoffend, he is deserving of a
Q sentencing option or measure that is appropriate for the category Q
of the offence, and that also provides the means for his
R rehabilitation.” R
S 65. Counsel has not provided the Court with a copy of that S
authority. In fact, the facts in that case are very different from the present
T T
case. In that case, the 25-year-old appellant pleaded guilty to conspiring to
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A A
B B
launder the proceeds of an indictable offence by lending her bank account
C to an acquaintance, Ah Fei, to bank a cheque of $1.1 million. She was to C
be paid $10,000, but she knew no other details. Ah Fei passed her a cheque
D D
and told her to deposit it, and immediately cash it at the bank. She did so
E but the bank staff refused to process the cheque because the particulars on E
the cheque had been poorly written. She returned the cheque to Ah Fei and
F F
the appellant took no further part in transacting the cheque and received no
G reward. The appellant committed the offence in January 2016 and was G
arrested and released on police bail in December of that year. On 27
H H
January 2017, the appellant was sentenced to attend a Drug Addiction
I Treatment Centre following her conviction for possession of a dangerous I
drug. On 23 February 2018, she was rearrested for the conspiracy to
J J
launder money. On 30 May 2018, the appellant gave birth to a son. In
K November 2019, she was sentenced to 1 year and 10 months’ imprisonment K
for the conspiracy to launder money, with the sentencing judge adopting a
L L
starting point of 2 years and 9 months’ imprisonment and reducing it by
M one-third for the guilty plea. She had served 11 months of her sentence and M
cared for her son whilst in prison by the time her appeal against sentence
N N
was heard. The Court of Appeal held:
O O
(1) There was a distinction, although there might be some
P P
overlap, between extending mercy to an offender when
Q Q
sentencing and applying sentencing principles to
R
achieve individual justice. The exercise of mercy when R
sentencing an offender must be done in the context of a
S S
balanced approach. Mercy must be exercised by
T
considerations which were supported by evidence and T
by having proper regard to essential sentencing
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A A
B B
principle and policy so as not to render a merciful
C sentence into an inappropriate one … C
D D
(2) As a general rule, persons convicted of money
E laundering, even if they were first offenders, should be E
sentenced to a term of immediate imprisonment. …
F F
Deterrence was paramount, given the encouragement
G and nourishment money laundering gave to crime in G
general …
H H
I (3) Where there were present circumstances that justified I
the sentencing court taking a lenient approach, the
J J
means by which this should be achieved was by
K reducing the starting point that would otherwise be K
appropriate for the gravity of the offending. There
L L
might be cases where a sentencing court was satisfied
M there were present ‘exceptional circumstances’ to M
warrant consideration of alternative sentencing options.
N N
The concept of ‘exceptional circumstances’ for the
O purposes of suspending a sentence of imprisonment, O
was wide enough to allow a sentencing court to take
P P
into account all relevant circumstances surrounding the
Q Q
offence, the offender and the background.
R
Accordingly, ‘exceptional circumstances’ might arise R
because of the prominent effect of an individual factor
S S
or the cumulative effect of several factors, but whatever
T
the situation, it required taking an overall or holistic T
view of the case. …
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A A
B B
C (4) The facts and circumstances of the present case C
highlighted the importance of individual justice when
D D
sentencing an offender. The classical principles of
E sentencing had been characterised by the objects of E
retribution, deterrence, prevention and rehabilitation. It
F F
would depend on the particular circumstances of the
G offence and the offender which of these objects applied G
and to what level and degree. There was a tendency
H H
when sentencing offenders for serious crime to place
I emphasis on deterrence, for the very important primary I
object of protecting the community, but rehabilitation
J J
should not be overlooked, particularly when the
K circumstances of the case cried out for a more K
individualised sentence. The sentence a court imposed
L L
must carefully be moulded not only to the category of
M the offence but to the offender. There would be cases, M
because of the gravity of the offence and the culpability
N N
of the offender, where little if any weight was given to
O mitigating factors that would otherwise be taken into O
account. But there was also a need for individual justice
P P
in such a case. Rehabilitation as an object of sentencing
Q Q
was aimed at the renunciation by the offender of his
R
wrongdoing and past misdeeds and his establishment or R
re-establishment as a law-abiding citizen. The ultimate
S S
object of the courts was to fashion sentencing measures
T
designed to bring back into the fold an offender as a T
law-abiding citizen wherever such measures were
U U
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A A
B B
consistent and compatible with the primary object of
C the criminal law which was the protection of the C
community. There was an element of compassion when
D D
addressing the object of rehabilitation, and this was
E normally displayed by the recognition of the suffering E
or misfortune of an offender. However, the offender
F F
must have shown that he had dissociated himself from
G his past wrongful conduct, and had committed himself G
to the future respect of the law. Where an offender had
H H
reformed and was not likely to reoffend, he was
I deserving of a sentencing option or measure that was I
appropriate for the category of the offence, and that also
J J
provided the means for his rehabilitation.
K K
(5) The appropriate starting point in the appellant’s case
L L
was one of 24 months’ imprisonment. Insufficient
M account was given to the circumstances of the offence M
and to the personal background and mitigation of this
N N
appellant. This had a bearing on the gravity of the
O offence and the culpability of the appellant as well as O
revealing ‘exceptional circumstances’ that warranted
P P
consideration of the range of sentencing options or
Q Q
measures that would appropriately address individual
R
justice. The appellant agreed to process a cheque R
through her bank account for a fee; this was to be a
S S
single transaction. She withdrew from the arrangement
T
after it did not go through and had no further T
involvement in the matter. Her withdrawal from the
U U
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A A
B B
arrangement provided strong support that she, a person
C in vulnerable state, was forced to go through it. Where C
a person agreed to engage in criminal conduct but
D D
because of some reason or intervening factor decided
E not to continue to be involved, this was a matter that E
clearly reflected on the gravity of the offence and the
F F
culpability of the offender. The appellant’s personal
G circumstances and factual circumstances of her G
involvement in the offence were not properly evaluated
H H
and the judge therefore erred in imposing a high and
I inappropriate starting point. … I
J J
(6) There were present in this case ‘exceptional
K circumstances’ that warranted consideration as to K
whether the sentence should be suspended in
L L
accordance with s 109B(1) of the Criminal Procedure
M Ordinance (Cap. 221). The ‘exceptional M
circumstances’ in this case were a culmination of the
N N
following matters: (i) the events leading up to and
O surrounding the offence and the fact that the appellant O
withdrew from the arrangement (even though this also
P P
reflected on the gravity of the offence and the
Q culpability of the appellant); (ii) the appellant’s age and Q
R
personal circumstances and her vulnerability to R
exploitation by others; (iii) the birth of the appellant’s
S S
child and the change of her lifestyle and attitude in a
T
positive and responsible way in the prolonged period T
after the offence; and (iv) the appellant’s renunciation
U U
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A A
B B
of her wrongdoing and past misdeeds and the
C reformation of her character and commitment to C
pursuing a law-abiding life.
D D
E 66. It is apparent that none of the ‘exceptional circumstances’ E
mentioned by the Court of Appeal are present here. The Defendant is 40
F F
years old. He took active part in the conspiracy until he was arrested by the
G ICAC. The letter from the IRD showed that D4 has failed to pay his tax on G
time. The total amount of tax payable for 2 financial years was $54,634 (ie
H H
$27,317 per annum). This does not demonstrate that D4 has earned several
I hundred thousands of dollars in both years as alleged. I
J J
67. In Sentencing in Hong Kong 11th edition, it was stated:
K K
‘[30-80] If an accused with a criminal record has ‘gone
L straight’ for a long time prior to his conviction, this may tell in L
his favour: HKSAR v Wu Yee-ki [2006] HKCU 1100 (CACC
513/2005, 30 June 2006, unreported). This is because a change
M M
in lifestyle can provide ‘compelling evidence of insight and
remorse’: R v McGeogh [2011] NICC 16, …
N N
[30-81] In R v Thomas (1994) 16 Cr App R (S) 616, 620, it
was said that, as the conviction of the accused was in the distant
O O
past, the court could treat his latest transgression as ‘an isolated
offence’. In HKSAR v Chan Hong (HCMA 1255/2001, 21
P December 2001, unreported), reference was made in the P
calculation of sentence to the accused’s ‘apparently successful
endeavors in leading a significantly reformed life over the past
Q 17 years.’ Q
R [30-403] In HKSAR v Lam Ka-sin [2021] 2 HKC 493, …, R
Zervos JA said that ‘where a person agrees to engage in criminal
conduct but because of some reason or intervening factor
S decides not to continue to be involved, this is a matter that S
clearly reflects on the gravity of the offence and the culpability
of the offender’. If an accused has withdrawn from a criminal
T T
enterprise, he should do something tangible to demonstrate
it. …”
U U
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A A
B B
C 68. As stated above, the offence is a serious one. Bearing in mind C
D4’s relatively minor role compared to D1 and D3, I am of the view that
D D
the appropriate starting point for D4 is 9 months’ imprisonment. He was
E convicted after trial and is not entitled to the discount for a plea. There are E
no other mitigating factors. D4 is sentenced to 9 months.
F F
G G
H H
( A N Tse Ching )
I District Judge I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V