Disgraced Rafael Hui Si-yan, who was "blinded by the desire to sustain the high life", was yesterday jailed for 7½ years, becoming the highest-ranking former Hong Kong official ever to be locked up.
Property billionaire Thomas Kwok Ping-kwong was sentenced to spend the next five years in a cell, as a key chapter closed in the biggest graft trial in the city's history.
The High Court's landmark ruling sends a clear warning against business-government corruption in today's Hong Kong.
"Like all tragic characters, you had a flaw," Mr Justice Andrew Macrae said as he sentenced the stony-faced Hui, 66. "Whether one uses the pejorative word 'greed' or puts it more kindly that you were blinded by the desire to sustain the high life to which you had been accustomed."
He added: "Had it not been for this case, you [Hui] would probably have gone down in history as one of Hong Kong's finest chief secretaries in recent years.
"It is quite clear to me that you were very adept at using your anticipated position to gain as much advantage for yourself," Macrae told the former government No 2, who pocketed HK$8.5 million from Kwok up to a few hours before he was sworn in as chief secretary in 2005. "High-ranking officials in particular owe a duty ... to the people of Hong Kong," Macrae said. "The breach of that duty and trust is a significant aspect of your culpability."
Hui took a total of almost HK$20 million in bribes to be favourably disposed to Sun Hung Kai Properties. He was found guilty of five out of eight counts, including misconduct in public office and bribery.
"It would have been very easy for useful information [such as] government thinking or policy to be communicated to someone outside the government," the judge said. "I am not so naive as to suppose that just because no specific quid pro quo can be identified, there was not."
Hong Kong had for years lived with a perception of government and business cosying up to each other, Macrae said. "Regrettably this case will have done nothing to dispel that perception." It was vital for the two sides to remain corruption-free - "particularly when the mainland is taking obvious and positive steps to eradicate the cancer of corruption".
The judge also imposed a HK$500,000 fine on Kwok, who was SHKP co-chairman until last week, a punishment he said was "necessary to deter others tempted" to bribe public officials.
Kwok's former subordinate Thomas Chan Kui-yuen - an SHKP executive director until his conviction - was jailed for six years and fined the same amount. Francis Kwan Hung-sang, a former stock exchange official, wept when he was sentenced to five years in jail.
Chan and Kwan were involved in all the payments, including an HK$11.182 million bribe in 2007. Hui was ordered to pay that sum to the government under bribery laws - although this will have little meaning as he has already declared bankruptcy.
The case came to light in 2008 when the graft-buster received an anonymous report, and arrests were made in 2012.
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Full Text of the Reasons for Sentence: -
I will begin if I may by making some observations about this particular case which I have now lived with as judge since the first application connected with these proceedings was made on 15 July last year. Although preceded by several pre-trial applications, the trial proper started on 8 May 2014, more than 7 months ago. The jury of nine heard evidence from more than 80 witnesses. My summing-up alone took 5 days to complete.
At one stage, there were listed in front of me 21 counsel, 5 of them from the English Bar, and amongst the 21, no less than 8 leading counsel. As one might expect in such circumstances, the proceedings have been difficult not only in terms of the evidence and the time it has taken, but in the multiplicity of issues which have been engaged and which I have been required to deal with during the trial process. However, in all of that process, nothing has been more difficult than the sentencing of the defendants in front of me today.
It is often said that sentencing is an art and not a science. If it were a science, it would no doubt be an easier exercise to conduct. In truth, sentencing is one of the most difficult functions a judge can perform, particularly when dealing with offences where there are no guidelines beyond various expressions of judicial opinion in other cases dealing with the same offence but with very different facts. And it is particularly difficult when one is dealing with otherwise decent men, who are not young but who have committed serious offences.
For the two facets of sentencing, the first which requires a judge to exercise a public duty in dealing effectively and consistently with serious crimes, and the second which requires him to mitigate the harsh effects of that sentence by acknowledging in an appropriate way the personal circumstances of the individual, are not always an easy balance to achieve. However, our system gives to the judge who has heard the evidence the unique discretion to act in a principled way to effect that balance, even though the way he exercises that discretion will always provoke those who have not had the advantage of hearing the evidence to say that he has leant too far one way or too far the other.
I have been taken to guidelines in the United Kingdom issued by the Sentencing Council in relation to Fraud, Bribery and Money Laundering. They are helpful to some extent in identifying the various factors of culpability and harm, which may be engaged in corruption offences but the law of England is different, their maximum sentences for such offences are different, their experience of these offences is different and Hong Kong has long developed its own approach and sentencing jurisprudence to this area of sentencing law.
The first defendant, Mr Rafael Hui, falls to be dealt with for 5 offences: Count 5 of Conspiracy to commit misconduct in public office, contrary to common law; Count 7, Conspiracy to offer an advantage to a public servant, contrary to sections 4(1)(a) of the Prevention of Bribery Ordinance, Cap 201; and three counts of misconduct in public office, contrary to common law, namely Counts 1, 6 and 8.
The second defendant, Mr Thomas Kwok Ping kwong, has been found guilty of Count 5 alone.
The fourth defendant, Mr Thomas Chan Kui-yuen and the fifth defendant, Mr Francis Kwan Hung Sang, fall to be dealt with for the two conspiracies of which they were found guilty, namely Counts 5 and 7.
All of the defendants are currently in their sixties, Mr Hui 66, Mr Kwok 63, Mr Chan 68 and Mr Kwan 64. All are of unblemished character and I accept that going to prison for the first time at this stage of their lives will be a particular hardship for all of them, no doubt exacerbated by the health issues, which each of them has. I wish to make clear that I have borne in mind their ages when considering the appropriate sentences they must serve; in particular, in the significance to be attached to their good characters.
I propose to deal with the second defendant first, because in a sense his case is the most straight-forward, given that he must be sentenced for one offence only, the maximum sentence prescribed by law being 7 years' imprisonment.
The first question, which I must address, is what the starting point should be for a single offence of conspiracy to commit misconduct in public office committed in the circumstances of this case. There is a compelling argument that the payment of HK$18.5 million bribe by the instigator of the offence to the No 2 in Government, made in a deliberately complex and intricate way through various co-conspirators, which then took months if not years to uncover, is an extremely serious example of the offence. It should also be recognized that it is not the function of judges to use their imaginations to conjure up even worse examples of the offence with which they are dealing, but to consider the worst type of offence which comes before the court and ask themselves whether the particular case they are dealing with it comes within the broad band of that type. Accordingly, there is a compelling argument that this offence merits a starting point at the maximum of 7 years imprisonment.
I have considered this argument, but I am minded to agree with Ms Montgomery (and with Mr Choy and Mr Winter) that this is not a case for the adoption of the maximum sentence as a starting point. Serious though it is (given the high degree of trust placed in D1 by the government and the people of Hong Kong when he was sworn in as Chief Secretary to the HKSAR Government), the case against the second defendant has never been that D1, as Chief Secretary, in fact did anything specific, or in fact did anything which he would not otherwise have done, for the money which he received. The allegation has always been that the defendants conspired together for Dl to misconduct himself by being or remaining favourably disposed to Sun Hung Kai Properties or the other entities set out in the count. I am not so naive as to suppose that just because no specific quid pro quo can be identified, there was not, in view of the sheer size of the payment, thereby created a relationship in which it would have been very easy for useful information on about government thinking or policy to be communicated to someone outside the government. Nevertheless, I am prepared to proceed on the basis that the notion of a public official doing something favourable in return for a payment is at its most attenuated, to paraphrase McMullin J (as he then was) in Attorney-General v Chung Fat-Nfing [1978] HKLR 480 at 488, in the context of the allegation of favourable disposition by being kept sweet.
In my view, the appropriate starting point in this case for the instigator of fill offence such as Count 5, as averred by the prosecution, is one of 6 years' imprisonment. I am satisfied in adopting that lower starting point by the fact that I also intend to pass upon the second defendant a substantial fine, which I deem necessary to deter others tempted to embark on a course of conduct which subverts the conduct of public officials.
The next question is to what extent that starting point is mitigated by the personal circumstances of the defendant. Anyone reading the bundle of testamentary documents produced by Ms Montgomery on behalf of Mr Thomas Kwok, or listening to Dr Choi or Ms Pullinger, could not fail to be moved by the genuineness of Mr Kwok's Christian faith and his compassion for those less fortunate tham himself. There is absolutely no doubt in my mind that you, Mr Kwok, are at heart a good man and a sincere one, whose work and altruism have touched the lives of a great many people. Your good
works over very many years have earned you a well-deserved reputation as a genuinely motivated philanthropist and not just someone who can afford to be generous. But what may not have been appreciated by the general public is the full extent of your altruism which has extended, as some of the letters, for example that of Mr Lau Yuan Chum, reveal, beyond the churches and the charities you support, beyond the staff of Sun Hung Kai whom you might be expected to exhibit a special concern for when they are confronted by personal difficulties, to ordinary people caught up in personal tragedies with which they cannot cope. And all of these people say the same thing, that at no time have you looked for any recognition for the good you have and and that you are at all times genuinely motivated by your faith.
In my judgment, if the mitigation of positive good character means anything, I must place these matters fully in the sentencing balance and give effect to them in a real way. I propose, therefore, to give you a one year reduction for mitigation from the starting point of 6 years. Were I to give you more than a one year reduction, I would be giving undue regard to your personal mitigation and run the risk of approaching your sentence as though you had pleaded guilty, which would not be a principled exercise of my sentencing discretion.
The sentence that I must pass on you is, therefore, one of 5 years' imprisonment. I will also order that you pay a fine of $500,000, in default of which you will serve a further one year of imprisonment.
I have no doubt you will have learned from this experience and you, above all people, will know that while there may be pain in the night, joy comes in the morning. I accept Ms Montgomery' s submissions in relation to disqualification. I shall order that you be disqualified under section 168D of the Companies Ordinance, Cap 32 from being a director of any company for a period of 5 years from today...
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