Chapter 9
Court Decision
Sentence
On 14 May 2018, D1 was sentenced to six months’ imprisonment after conviction of one count of public servant accepting an advantage, contrary to section 4(2)(a) of the POBO; whereas D2 was also given a six-month sentence after being found guilty of one count of offering an advantage to a public servant, contrary to Section 4(1)(a) of the POBO.
While the duo appealed against their convictions, the Department of Justice also applied for a review of the sentence on the grounds that the sentence was manifestly inadequate as a starting point of 12 months instead of six months should be adopted. As a result, D1 and D2 were respectively given a jail sentences of 10 months and 11 months. D1 sought remission of sentence on the grounds that he would lose his HK$4 million odd pension gratuity and nearly $30,000 monthly pension.
First appeal
On 3 July 2019, the Court of First Instance dismissed the duo's appeal against their convictions.
The magistracy appeal was conducted by way of rehearing before the Court on the evidence of the original case. The judge ruled that the magistrate had carefully and adequately considered and analysed the evidence and statements of both parties, and his findings of fact based on the evidence did not involve any manifest error sufficient to merit intervention by the Court of Appeal. It was held that, from the rehearing perspective, the evidence adduced by the prosecution was sufficient to prove every element of the two offences beyond reasonable doubt, and thus the convictions were safe and satisfactory. The Court upheld the convictions and the two defendants had to serve their sentences immediately.
Second appeal
As D1 was not satisfied with the Court's decision, he applied to the Court of Final Appeal for leave to appeal against his conviction on the grounds that a point of law of great and general importance was involved in the case. As D1's application for legal assistance was refused by the Legal Aid Department, he requested to be heard in person.
D1 pointed out that the prosecution had taken inconsistent positions in the trial by saying at one point that D1 had done a specific act and at another point the bribe was a general sweetener. According to D1, such inconsistent statements left the conviction unsafe and unsatisfactory.
The Court of First Instance of the High Court held that though the prosecution displayed an alternative position in their written closing remarks, the focus in their verbal closing remarks stayed on the prosecution's position that the bribe accepted by D1 could be regarded as a general sweetener, and cases were adduced to provide support for "being or remaining favourably disposed", which formed the conviction basis in the trial. The judge did not consider that the two defendants did not receive a fair trial owing to the unclear position of the prosecution in the closing remarks, nor was there any legal issues worth clarifying or discussing by the Court of Final Appeal.
As D1 failed to raise any point of law of great and general importance, the judge of the Court of First Instance of the High Court dismissed D1's application for leave to appeal on 24 October 2019.