IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 444 OF 2013
(ON APPEAL FROM DCCC NO. 486 OF 2013)
1. The applicant was convicted on his own plea in the District Court before His Honour Judge Browne of two charges, namely, being anagent soliciting an advantage and failing to surrender to custody. On 17 December 2013, he was sentenced to 3 years imprisonmenton the first charge and one month imprisonment for the second charge and the sentences were ordered to run consecutively. The applicantseeks leave to appeal against the sentences.
2. The applicant was an employee of a company called Greater Lucky (HK) Company Limited (“Greater Lucky”). In 2012, Greater Luckysucceeded in tendering for the management of the Lion Rock Tunnel and the Kai Tak Tunnel. The contract price was HK$406 million. Previously, the tunnels were managed by a company called Serco Group (HK) Limited (“Serco”), who was unsuccessful in biddingfor the tender.
3. On 10 July 2012, the applicant approached a Mr Kwok Mun-keong, who was Serco’s employee, and solicited from Serco an advantageequivalent to 1.5% of the contract sum (i.e. HK$ 6,090,000) as a reward to help prevent Greater Lucky from signing the contract,in which case Serco would have a chance to get the contract. During the same meeting, the applicant also told Kwok that he had notbeen on good terms with the management of Greater Lucky and he was in possession of prejudicial information that suggested GreaterLucky stood to lose tens or millions of dollars in carrying out the contract.
4. After the meeting, the applicant followed up with several text messages to Kwok. Eventually Serco refused the applicant’s offer. Greater Lucky signed the contract as scheduled.
5. The applicant was later arrested by officers of the ICAC. In a cautioned interview, he admitted Greater Lucky had not authorisedhim to solicit the advantage from Kwok.
6. The applicant was granted bail to appear before the District Court on 12 August 2013 for trial. He failed to appear and a warrantof arrest was issued. On 21 October 2013, the applicant was re-arrested.
7. The applicant is aged 67. He has a clear record. He is a university graduate and was pursuing a PhD degree with University of Melbourne.He also holds a number of professional qualifications in the area of logistics and transport and tunnel operations. He had beenactively involved in a number of charitable and sporting organizations.
8. In mitigation, it was said he was on bad terms with the senior management of Greater Lucky as a result of his salary being reducedby more than half. It was also said that he in fact did not have any prejudicial materials of Greater Lucky that could cause itto give up the contract for the management of the tunnels. It was also explained that the applicant had failed to raise sufficientmoney to meet the legal fees and in panic he absconded. He later took the initiative to contact the ICAC for his surrender.
9. The Judge considered the solicitation was not made casually or at the spur of the moment. He took into account the fact that verysubstantial amount of money was solicited and that there was significant breach of trust on the applicant’s part. He adopted astarting point of 4½ years and reduced it by one-third to reflect the applicant’s guilty plea, and sentenced the applicant tothree years’ imprisonment on the first charge. On the second charge, he imposed a consecutive sentence of one month’s imprisonment.
10. The applicant put forward the following matters in support of his application for leave to appeal:
11. The applicant submitted two letters written respectively by the chaplain of the Correctional Services Department and his youngestson urging leniency on the applicant’s behalf.
12. I note that in HKSAR v Pau Chin Hung Andy  1 HKLRD 600, a starting point of 4 years was adopted for two counts of accepting advantage as agent on a defendant who had accepted a total ofabout HK$1.1 million. And in Secretary for Justice v. Wong Hong Leung  1 HKLRD 226, a starting point of 5½ years was considered appropriate for the defendant who was convicted of four charges of offering advantagesto agent that took place over a period of almost six years and involving total bribes of about HK$10 million.
13. Mr Cheng submitted that there are aggravating factors in this case, namely, the amount solicited by the applicant was very substantial;public interest was involved in that the contract in question related to the management of two major tunnels; it was a case of seriousbreach of trust; and it was not a momentary lapse.
14. I have doubts about the public interest point because Serco was previously responsible for the management of the tunnels and hadcompleted the contract. The respondent accepted there was no evidence that its performance was unsatisfactory. The respondent alsoindicated there was no evidence to contradict the applicant’s case in mitigation that there were in fact no adverse materials ordata about Greater Lucky.
15. I also note that the applicant was 66 when he committed the offences. It is to his credit that he has a clear record (see Secretary for Justice v. Wong Hong Leung, at para.25). He can be regarded as a person of positive good character. The Judge was aware of this but he had not indicated whetherhe accepted this as mitigating factor, and he had not given any reduction on account of this.
16. I am of the view that two aspects of the sentence on the first charge require further submissions and consideration: (1) whetherthe starting point of 4½ years is manifestly excessive; and (2) whether sentence should be further reduced on account of the applicant’sclear record and positive good character.
17. Accordingly, I direct that the application be listed for hearing before a court of two or three judges.
Mr Raymond Cheng, Senior Public Prosecutor, of the Department of Justice, for the respondent.
The applicant, unrepresented, appeared in person.