匿名2013年6月9日 下午12:41
1.In cases like these, what can be the mitigating and aggravating factors?
2. Could Wong be convicted if he had made a disclosure of the benefits he had received?
3. Could Wong be convicted if the restaurateur was not applying for a licence?
2. Could Wong be convicted if he had made a disclosure of the benefits he had received?
3. Could Wong be convicted if the restaurateur was not applying for a licence?
Let me answer in the reverse order.
Wong could not be convicted if the restaurant was simply operated unlicenced because it was not the basis of the prosecution case. We are talking about liquor licence here, not a general restaurant licence. Wong could exercise his influence over the granting of liquor licence but he had no say about the issuing of restaurant licence, which is in the hands of the Food and Environmental Hygiene Department, Building and Fire Services Departments. If the police object to the issuing of liquor licence to the restaurant, it will almost be impossible for the licence to be issued even though the final decision is in the hands of the Liquor Licence Board.
If you patronise an unlicenced restaurant, just like you buy something from the unlicenced hawker in the street, it is not an offence.
Wong was facing the Misconduct in Public Office charge, not a bribery charge. The elements constituting the Misconduct charge is different from that of bribery. In Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381, 5 elements are listed for such a charge:
(2) in the course of or in relation to his public office;
(3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;
(4) without reasonable excuse or justification; and
(5) where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.
Wong fitted in each of them. He was using his office to exert "general sweetener" (甜頭) (a term used in Sin Kam Wah and HKSAR) from the restaurant. He could not have got approval from his superior officer to do so. Such an approval is non existent in law. He was overseeing the granting of liquor licence as long as the police involvement was concerned in Wanchai District. He was the Divisional Commander. For instance, if he was a CID man and holding the post of Assistant District Commander (Crime), then it would be different because he had no say about the granting of liquor licence. It would not be his "public office".
Lastly, going back to the first question about what can be considered as mitigation and aggravation. Generally speaking, I should say there is no exhaustive list. These are matters, from different perspective, mitigation intertwined with aggravation. Just like in the the present case, when Albert Luk submitted in mitigation certain matters, Adriana Tse retorted and refuted them. So you can see the multi facets of seeing one thing.
Generally speaking, previous good character, isolated incident, previous commendations of service, loss of future earning and benefits, remorse and unlikelihood of re-offending are all matters you can put forward as mitigation. Conversely, the higher the position, the more severity of misconduct. Wong went with his subordinates to the restaurant to enjoy the "sweetener" is obviously an aggravation as well as the amount of money he raked off from the meal.
I can understand there was an outcry by the police in general feeling aggrieved by the severity of the sentence because in their mind getting "sweetener" is no big deal and it is a norm in their daily duty. It is a vicious culture similar to what Donald Tsang and Timothy Tong have done. To eradicate this evil is of course not easy. The police have not learned the lesson from Sin Kam Wah's case, who enjoyed free pokes when he was a senior superintendent of OCTB. In a way, Adriana's sentence is not manifestly excessive to eradicate the evil but it may not be the most appropriate case to serve this purpose. I believe appeal on sentence will be allowed and conviction is upheld.
