830
LEGAL DEPT 852-5-8690236
IN HONG KONG LAW REPORTS
500 P07/14
[1987] HKLR
CA
which was then deposited with another finance company in the respondent's name. That other company, however, subsequently went into liquidation.
The maximum sentence for a common law conspiracy to defraud as presently provided by s. 90(4) of the Interpretation and General Clauses Ordinance is 14 years' imprisonment. But these offences took place at times prior to July 1986 when the maximum penalty under the former s. 90 was 7 years' imprisonment and a fine of HK$50,000. The maximum sentence for "accepting an advantage", as provided by s. 12(1) of the Prevention of Bribery Ordinance is 7 years' imprisonment and a fine of HK$500,000. The section further makes provision for orders for the repayment by the acceptor of the advantage to his principal of the whole or part of the advantages rece.ved. The latter provision, which was not expressly drawn to the attention of the Chief Justice, is mandatory. Not having been so reminded he may well have thought that the assigninents to which we shall shortly refer constituted sufficient compliance with the spirit of this provision.
The respondent was thus liable on luis pleas of guilty to the possibility of 28 years' imprisonment, to fines of HK$1.1 millico and to orders for the repayment to the Bank of HK$15,726,680.
:
The respondent resigned his directorships in October 1983 when the Bank began to suspect misfeasance in the operation of the Finance Company. He continued to live in Malaysia until October 1984, going then to England where his children were being educated. He was arrested there on 6th December 1985. On 6th November the following year he consented to an order for his return to Hong Kong to face the charges already outlined. This was the result of a bargain concluded on 4th November 1986 between the Attomey General and Mr. Carman, who has appeared for him below and before us. Reduced to terms of simple contract the respondent promised to sign an agreed "statement of facts", tantamount to a confession, and to submit to an order for his return to Hong Kong to meet the four charges and there to plead guilty to them; thereby saving the prosecuting authorities substantial experse and time in court, both in England and in Hong Kong, which matters cannot be ignored in the assessment of appropriate sentences. In consideration of these promises the Attorney General undertook not to pursue 38 other charges, some of which were in the alternative, against him. However, we find it difficult to infer remorse on the part of the respondent from such a calculated exercise, although it may still leave some room for further discount in relation to the sentences to be imposed following the agreed pleas of guilty.
The sums of money involved in the crimes to which the respondent in gross breach of the fiduciary relationship resulting from his active directorships of the Finance Company and the Bank was party were enormous and brought the Bank to the verge of liquidation. There will always, theoretically at least, be a worse example of the particular crime to attract the maximum sentence and at trial and before us Mr. Carman was at pains to identify candidates from amongst the associates of the respondent for relatively more condign punishment. We have to observe however that those others may be called to account for a considerably greater number of offences than the four accepted against the respondent, and should they ever be convicted thereof, will almost assuredly receive that punishment.
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Earlier this month this Court cited with approval (Attorney General v. Dominic Cheung Kal-man Application for Review No. of 1987, see [1987] HKLR 788) the words of Lawton, L.J. in R. v. Ambler and Hargreaves (1976) Crim LR 266, in the English Court of J Appeal (24th November 1975):
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