828
LEGAL DEPT 852-5-8690236
SKY POS/14
HONG KONG LAW REPORTS
[1987] HKLR
CA
The judgment of the Court of Appeal was delivered by Cons, V.-P.
Cases cited in the judgment
Attorney General v. Dominic Cheung Kai-man [1987] HKLR 788 R. v. Ambler and Hargreaves [1976] Crim LR 266
R. v. Chow Yung Crim App No. 139/85
R. v. Wong Hoi Crim App No. 354/15
Cons, V.-P.:
Pursuant to leave and the provisions of s. 81A of the Criminal Procedure Ordinance (Cop. 221) the Attorney General invites us to review the sentences passed on Mohamed Hashim Shamsudin ("the respondent") by the Chief Justice on 14th January 1987. This is the judgment of the Court on that reference.
The respondent had pleaded guilty to two counts of “conspiracy to defraud” contrary to common law and to two counts of "accepting an advantage" contrary to s. 9 of the Prevention of Bribery Ordinance (Cap. 2011). He was sentenced to four and a half years' imprisonment on each of the conspiracy counts and to three and a half years' imprisonment on each of the counts for "accepting an advantage". Originally the Chief Justice had in mind to make one year of the sentences for accepting an advantage run consecutively to the sentences on the conspiracy counts, as may be allowed by s. 68 of the Criminal Procedure Ordinance (Cap. 221), to produce a total of five and a half years' imprisonment, expressed to commence from the 6th December 1985 in order to give credit for one year that the respondent had spent in custody in England. But being persuaded that there was no jurisdiction to "backdate" a sentence in that way be achieved his objective instead by making all sentences run concurrently.
The conspiracies occurred between January 1982 and 31st October 1983 and related to loans made by Bumiputra Malaysia Finance Ltd. ("the Finance Company") to members of a group of Hong Kong companies now in liquidation in fraud of the Finance Company, of Bank Bumiputra Malaysia Berhad ("the Bank"), of Permodalan National Berhad and of the Malaysian Government. The first loan was in the sum of US$97 million and the second in the sum of US$40 million. The two counts of "accepting an advantage" related to the acceptance by the respondent, on or about 3th September 1981, of HK$13,726,680 and, on or about 14th May 1982, of HK$2 million as inducements to procure or rewards for facilitating the advance of loans to the Hong Kong companies. It is accepted that of these sums HK$10,144,602 went into his own pocket.
To appreciate the context in which the cffences were committed it must be understood that as from December 1979, and pursuant to alleged conspiracies to defraud involving others, the Finance Company had been making substantial loans to one or other of the group companies and that the respondent had established a very close relationship with the controlling director of the group. The respondent was the executive director of the Bank and a director of the Finance Company.
During December 1981 the respondent agreed that further advances could be made to one of the group by way of purported money market loans for the purpose of buying out a joint venture partner with whom the controlling director had crossed swords. The director had explained that if the funds were not forthcoming the group would be financially prejudiced and the Finance Company would be placed at risk. Money market loans are
A
A
П
S
it
V
C
B B
f
(
(
I
1
C
C
D
D
E
E
F
F
די
G
H
J
H