R. v. WONG KWAI-FUN

IN THE COURT OF APPEAL

1991, No. 390
(Criminal)

HEADNOTE

An offender may be convicted under both s.89 as a person who aids and abets an offence and under s.90 (1) as a person who aids and abets another person who has jointly committed the same offence with doing an act intending to impede that other person's apprehension. Discussion of the joinder of charges having a "common factual origin". The matter being one which involves credibility, a Broadhurst direction was not required.

IN THE COURT OF APPEAL

1991, No. 390
(Criminal)

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant faced three counts. The first was counselling and procuring murder, contrary to Common Law. The second, which was an alternative count to the first, was counselling and procuring the causing of grievous bodily harm with intent contrary to s.17(a) of the Offences Against the Person Ordinance, Cap.212 and s.89 of the Criminal Procedure Ordinance, Cap.221. The third was attempting to pervert the course of public justice, contrary to Common Law. The particulars of the first count were that, on the 23rd of January 1987, in Hong Kong, he counselled and procured Cheung Yu-chung to murder Chong Kai-ming. The particulars of the second count were that, on the 23rd of January 1987 in Hong Kong, he counselled and procured Cheung Yu-chung to unlawfully and maliciously cause grievous bodily harm to Chong Kai-ming with intent. The particulars of the third count were that, on the 20th of July 1990 in Hong Kong, he attempted to pervert the course of public justice in that he attempted to have documents delivered to Ip Tat-wah and Ip Kam-ling seeking to persuade the said Ip Tat-wah and Ip Kam-ling to become witnesses in the trial of the said Wong Kai-fun in connection with the assault and resultant death of Chong Kai-ming and to give false testimony therein in relation to certain acts of blackmail.

3. The applicant, having pleaded not guilty to all counts, was tried before Wong J. and a jury, and was, on the 27th of July 1991, found guilty on the second, alternative count and on the third count.

4. It was the Crown case that the victim, Chong Kai-ming, had a brother named Chong Kai-tak who had been employed by Gentlewealth which was one of several companies involved in money lending controlled by the applicant. It was the evidence that Chong Kai-tak had embezzled $750,000 from that company and that the applicant was endeavouring to obtain repayment either from Chong Kai-tak or from another member of his family. The victim appears to have been a person of substance and, in consequence, the endeavours to obtain repayment became concentrated upon him. It was the evidence of Cheung Yu-chung (Cheung), an accomplice who worked for Gentlewealth Finance Co. Ltd., that his duties involved debt collections and that he took orders from the applicant. He said that the endeavours to obtain repayment came to a head when, on the morning of 23rd of January 1987, he went to the office of Wealth Found, one of the companies in the group, and saw the applicant who, being very angry, said to him:

"Fei Chong (the victim) is always dragging about this matter. He is also awaiting. He doesn't make any response and what he means by that? Tonight, I want you to tell the boys to use an iron water pipe to hit him when he finished his work. Hit the man at the sight of the man; hit the car at the sight of the car. Inflict a harder blow. It doesn't matter if the hands and legs are broken. Give him a good beating. Do a neat and efficient job."

He said that the applicant then gave him the registration number of the victim's car and told him the time when he would return from work and the number of his parking space. Cheung said that he passed on the instructions to three others who worked as debt collectors for the group of companies named Leung Shek-fu (Leung), Poon Hon-sum and Tse Chiu-chien

5. Leung, who was also treated as an accomplice, gave evidence that he received the instructions from Cheung in consequence of which he and the other two attacked and beat the victim. Leung said that he used an iron bar hitting him a number of times on the body and once on the head. He said that the other two kicked the victim while he was lying on the ground motionless and that he used the iron bar to smash the windscreen of the car. The victim succumbed to the injuries sustained in this attack.

6. This summarizes the evidence upon which the Crown relied in relation to the first two counts.

7. The Crown case on the third count was that on 20th July 1990, while the applicant was serving sentences imposed in respect of an offence of assisting offenders to escape, which was related to the first count, and on other offences relating to false letters of credit, he handed a bundle of documents to a prison officer asking him to give them to a relative who was visiting. The Crown contended that these documents evidenced a plan devised by the applicant to pervert the course of justice by falsely tarnishing the evidence of witnesses in the trial which he was to face on the first two counts. The documents contained outlines of two letters which, it seems, were intended to be copied by two prospective Crown witnesses named Ip Tat-wah and Ip Kam-ling and sent to members of the applicant's family. These letters contained demands that money be paid by the Wong family.

8. The letters indicated that the principal prosecution witness, Cheung, was the instigator of the blackmail and that he had requested the two Ips to conspire with him. The plan appears to have been that counsel for the applicant would be given the letters to use in cross-examination to destroy the credit of the Ips and to cast doubt upon the evidence of Cheung.

9. The applicant gave evidence denying ever having given any instructions to attack the deceased and said that the letters were a record of what he had been told by his younger brother and sister about meetings which they had had with the Ips. He said that they were not written in ordinary narrative so as to avoid detection by the prison authorities. The meaning to be attributed to the letters would, of course, be a matter for the jury but there was no issue that they were open to the interpretation which the Crown sought to place upon them.

10. Mr. McCoy, who appeared for the applicant with Mr. Simon Chui, filed six grounds of appeal. In the event we need deal with only four of these.

11. Ground 1:

"The learned Judge erred in refusing to rule that the Applicant should not be tried on Counts 1 and 2 of the Indictment, as he had been convicted on 13 March 1989 in the High Court of Hong Kong of the offence of Assisting Offenders contrary to S.90(1) Criminal Procedure Ord Cap 221 in relation to the same assault particularised in Counts 1 and 2 of the Indictment, and such conviction was inconsistent with or irreconcilable with the particulars of Counts 1 and 2 and amounted to an abuse of the process of the court."

12. The relevant sections of the Criminal Procedure Ordinance are:

"s.89. Any person who aids, abets, counsels or procures the commission by another person of any offence shall be guilty of the like offence."

"s.90(1) If a person has committed an arrestable offence, any other person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does, without lawful authority or reasonable excuse, any act with intent to impede his apprehension or prosecution shall be guilty of an offence."

13. The applicant was convicted under s.90(1) of assisting offenders who were involved in the assault particularized in Counts 1 and 2. Mr. McCoy submitted that s.90(1) when it refers to "any other person" is referring to a person other than the one who committed the arrestable offence.

14. Mr. McCoy submits that by virtue of s.89, a counsellor and procurer, in law, commits the offence the commission of which he aided and abetted.

15. His argument is that the applicant, by reason of his s.90(1) conviction for assisting offenders, has been adjudged to be a person other than one who committed the assault particularized in counts 1 and 2 and that he cannot, therefore, as would be required for a conviction for an offence under s.89, be found to be a person who committed that offence.

16. There are at least two short answers to this submission. Firstly, we are unable to see any reason why a counsellor and procurer or, indeed, a person who jointly commits an offence with another could not, should he assist the other to escape, be regarded for the purposes of s.90(1) as "any other person", i.e. a person other than the committer of the offence and whose escape is being aided.

17. Secondly, we reject the contention that by virtue of s.89, a counsellor and procurer "commits" the offence and that he is, therefore, the person who "has committed an arrestable offence" referred to in s.90 (1). It is correct that a counsellor or procurer can by virtue of s.89 be charged with and convicted of the substantive offence but that does not mean that he has "committed" that offence. A person who is present at the scene of a rape and actively encourages the rapist may be convicted of rape as an aider and abetter under s.89 but he himself does not "commit" rape. We see no reason why, should such a person assist the rapist to escape, he would not be liable to be convicted under both s.89 and s.90(1).

18. We are satisfied that there is no substance in this ground.

19. Ground 2:

"The learned judge erred in law and/or in the exercise of his discretion, in refusing to order the severance of Count 3 from the indictment

(a) as a matter of law, the charge did not have a common factual origin,

(b) as a matter of discretion, the evidence on Count 3 being inadmissible on Counts 1 and 2, the applicant was likely to be, and was in fact, severely prejudiced in the conduct of his defence."

20. An application to sever was made by Mr. Sedgwick Q.C., who appeared for the applicant at trial. It was rejected by the trial judge. Mr. McCoy acknowledged that Connelly v. D.P.P. [1965] A.C. 1254 had put beyond doubt the propriety of trying other counts with a count of murder. He submitted, however, that adding a count of attempting to pervert the course of justice to a related count of murder was a wholly exceptional conjunction. It may well be that this has not been frequently done but we are not persuaded that there is anything improper in such a course. Indeed as the evidence on the latter count might, depending upon the view the jury took of it, be cogently relevant to the murder it should plainly be heard in the trial thereof. Mr. McCoy originally launched a scathing attack upon the good faith of the Crown counsel responsible for joining the third count. He suggested that, without regard to the propriety of the joinder, it was effected solely to force the applicant into the witness box. Clearly indicative of this was, he suggested, the fact that the third count was added only days before the trial by way of a voluntary bill. He submitted that matters relevant to the discretion which the trial judge had to refuse to allow the joinder were not placed before him for his consideration. Mr. McCoy, despite our invitation, did not pursue the suggestion of bad faith on the part of Crown Counsel beyond the submission from the bar outlined above. We are satisfied, the matter having been taken no further, that we should wholly reject that suggestion.

21. The refusal of the trial judge to sever the counts followed full argument from leading counsel. Had there been any embarrassment caused by the late presentation of the voluntary bill it was open to counsel to have sought an adjournment. He did not do so. A situation similar to the present one arose in R. v. Barrell & Wilson (1979) 69 Cr.App.R. 250. The judgment for the court, delivered by Shaw, L.J., dealt with the contention by defence counsel that the lesser, subsidiary count must be an integral part of the primary count and must not be separated from it by any distance in time, holding:

"This contention rests on too narrow a construction of the language of the statute and the relevant rule. The phrase 'founded on the same facts' does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which give rise to what he called the primary charge, then it is true to say for the purposes of rule 9 that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment."

Mr. McCoy suggested that this decision had no application because its facts were so markedly different from those in the present case. The facts were certainly different but we are satisfied that the principle enunciated has equal application to the facts in the present case. The counts in the present case did, we are satisfied, have "a common factual origin" and could, therefore, properly be joined. Indeed we think it would have been wrong had the charges not be heard together. We are satisfied that the trial judge cannot properly be criticized for refusing to exercise his discretion to sever count 3.

22. Ground 3:

"If the counts were properly tried together, the learned trial judge failed to give adequate guidance to the jury as to the circumstances in which the facts alleged in Count 3 could be probative of guilt on Counts 1 and 2."

23. The judge told the jury:

"In her closing speech Miss Crebbin invited you to take the view that these letters, Exhibits P26 to P39, are also relevant to prove the first and second counts as evidence of the accused's guilty knowledge or state of mind that he knew that he was involved in the death of CHONG Kai-ming.

Whether you take that view or not is a matter entirely for you, but I should point out to you that when a man was charged with murder, he might have acted in the same way that the accused acted, for example, out of panic."

24. Mr. McCoy submits that the judge was here clearly telling the jury that they could take the letters which grounded the third count into consideration when considering the first and second counts. That is so but we are satisfied that the jury were entitled to make use of the letters when considering the first two counts. Mr. McCoy next suggests that the jury were not adequately directed as to the use to which they could put the letters. The judge told them to have care before using the letters as they might "for example" have been written "out of panic". It was for the jury using their commonsense looking at the letters against the background of all the evidence to determine what use they made of them. We are satisfied that the direction was proper and sufficient. Mr. McCoy argues that even if the direction was sufficient, which he does not concede, it must have left the jury confused as earlier in the summing-up they were directed:

"The first two counts are alternatives and that means if you find the accused guilty of the first count you do not consider the second count. But, if you find him not guilty of the first count then you will go on to consider the second count as an alternative. The third count is a separate count from the other two counts. You will consider that count separately and return separate verdicts.

I will deal with the third count first, because it is more convenient to do so. This count stands completely alone, on its own, and does not depend on the evidence of any of the accomplices, such as CHEUNG Yu-chung, and does not require corroboration. The evidence is completely self-contained. I will tell you what accomplices and corroboration mean in due course.

He submits that the jury must have been thoroughly confused by what he says are conflicting directions. We cannot agree. The judge, it is true, told the jury that the third count was a "separate count" which stood "completely alone" but nowhere did he suggest that the evidence going to prove that count could not be used by the jury when they were considering the first two counts. When he came to deal with that evidence he, correctly we are satisfied, told the jury that it was relevant to the first two counts.

25. Ground 4:

"The learned judge failed to give the jury a Broadhurst direction yet Crown Counsel strongly closed to the jury on the issue of lies."

Mr. McCoy referred to twelve passages in the closing address of Crown Counsel in which reference was made to lies. He placed particular reliance upon the following three passages:

"But clearly if you find that the defendant is lying - and I suggest he clearly was - then you have to decide why he was lying. It could be for a number of reasons, not necessarily indicative of guilt. But I suggest to you that the only reason in this case why the defendant should lie to you is to try and hide his involvement in the incident. What other reason could there possibly be, members of the jury?"

Later Crown Counsel when addressing the jury with regard to the defendant's involvement in the family company said:

"So members of the jury, he tried his best, I would suggest, to hide from you his true involvement in that company. And surely in his position as managing director with this power in the company he must have received at least some profit or some salary, some monetary interest. I am sure he didn't do it all just for brotherly love. ...... Again, why should he lie other than to hide the fact that he is in overall control of all these companies and therefore the person giving orders?"

She later returned to the suggested lies by the applicant when she said:

"Why should the defendant lie to you about this matter (this was in relation to the third count)? I suggested that the only possible reason is again to try and extricate himself from the third count of the indictment."

It was Mr. McCoy's submission that a "Broadhurst direction" as to lies should be given in every case where the lies by the accused are relied upon by the Crown. He submitted, in particular, that whenever the Crown attempted to use lies as evidence of consciousness of guilt, it was mandatory that such a direction be given. Having referred to R. v. Broadhurst [1964] A.C. 441 he suggested that the proper approach was that outlined by Sir Robin Cooke J. in R. v. Toia (1982) 1 N.Z.L.R. 555. He submitted that that decision was authority for the following propositions:

(1) Where it was suggested that the lies did no more than affect credibility it was desirable but not mandatory that the judge tell the jury that persons may have various motives for lying and that the fact that the defendant had lied did not necessarily mean that he was guilty; and

(2) Where a lie has positive evidential value which allowed it to be used to strengthen the evidence proving guilt it was mandatory that a Broadhurst direction be given.

We are by no means satisfied, even in the second situation, that a Broadhurst direction is mandatory. We refer to Regina v. Sharp The Times Law Reports of February 10th, 1993, in which Lord Justice Stuart-Smith, giving the judgment of the Court, said:

".... that save in those cases where lies were relied upon as corroboration, R. v. Lucas (Ruth) ([1981] Q.B. 720), or as confirmation of identification evidence, R. v. Penman ([1985] 82 Cr.App.R. 44) and R. v. Francis ([1990] 1 W.L.R. 1264), it was not as a matter of law incumbent upon a judge to give a direction as to the significance of lies told by the accused."

26. It was not Mr. McCoy's contention that reliance was sought to be placed on lies as corroboration or as confirmation of identification evidence. We are, however, satisfied that the jury would have understood the real thrust of the first of the passages set out above, when heard in context, not to have been that the Crown was seeking to use lies directly to prove guilt but was suggesting to them that they place reliance upon the lies as corroboration of the evidence of the accomplice. The passage in context reads as follows:

"The main evidence, as I have said to you, in relation to this matter, is of course the evidence of Cheung Yu-chung. As you know, this man is an accomplice. He was the one who received the instructions from the defendant for an arrangement to be carried out.

And you will hear from the judge in his address to you that it is dangerous to convict on the evidence of an accomplice alone without corroboration. It doesn't mean you can't do so. It is dangerous. You have to look at the evidence very carefully.

And clearly here in this case, although there is evidence to support part of Cheung's testimony, which does -- might help you in assessing his credibility, there is no direct evidence to corroborate his testimony that this defendant was the man who ordered the attack on Chong Kai-ming. So you must heed the warnings given to you by the judge very carefully.

But I would say this to you, members of the jury. What you have to decide at the end of the day is did the evidence of Cheung Yu-chung have a ring of truth about it? You have to decide: 'Do I believe this man? Do I accept what he is saying about the role played by the defendant? Is there any reason why I should doubt him?'

And obviously one other thing which will help you decide, if you cannot believe Cheung Yu-chung's evidence, is your assessment of the truth or otherwise of what the defendant told you, because of course he denies what Cheung says about his involvement in this killing.

But you must remember, however, that the defendant does not have to prove anything to you. As I have told you at the beginning, the burden of proof is always on the Crown; they have to prove the case to you beyond all reasonable doubt.

But clearly if you find that the defendant is lying - and I suggest he clearly was - then you have to decide why he was lying. It could be for a number of reasons, not necessarily indicative of guilt. But I suggest to you that the only reason in this case why the defendant should lie to you is to try and hide his involvement in the incident. What other reason could there possibly be, members of the jury?" (Emphasis supplied)

When the Crown Counsel said to the jury "obviously one thing which will help you decide, if you cannot believe Cheung Yu-chung's evidence, is your assessment of the truth or otherwise of what the defendant told you" the jury must have understood that she was suggesting to them that, if they were satisfied that the applicant had lied, this would give support to the evidence of Cheung and was inviting them to use the lies as corroboration. The jury could only use lies in that way pursuant to a direction along the lines of that indicated in R. v. Lucas.

27. However the judge made it quite clear that the lies were not to be so used. He told the jury that there was

"... absolutely no evidence to corroborate or confirm the evidence of CHEUNG Yu-chung as far as this conversation is concerned. The case on these two counts must stand or fall on the evidence of CHEUNG Yu-chung and on his evidence alone. If you do not believe his evidence or have any reasonable doubt that his evidence is true, that will be the end of the matter and you must in that case find the accused not guilty of both the first and second counts without going any further.

This is a case of credibility depending on whose evidence is believed - the evidence of CHEUNG Yu-chung or the evidence of the accused and his sister WONG Sui-fong.

They have spent many days in the witness-box and you have seen and observed their demeanours, that is the way in which they gave their evidence. It is your function as judges of facts to assess and evaluate their evidence and to decide who you believe and who you do not believe. If having considered all the evidence you are left with a reasonable doubt, you must acquit the accused.

Before you can convict the accused, you must be satisfied beyond reasonable doubt that CHEUNG Yu-chung was telling the truth even if you reject the evidence of the accused and his witnesses. In that case if you are satisfied beyond reasonable doubt that CHEUNG Yu-chung was telling the truth about the conversation, it is open to you to find the accused guilty of either the first count or the second count and bring in a verdict of guilty of the appropriate count in accordance with the direction on law I am about to give you.

A warning is not a prohibition. What it means by this is that before you can convict the accused, you must bear in mind that it is dangerous to convict the accused on the evidence of CHEUNG Yu-chung alone and that is on the evidence -- on the uncorroborated evidence of CHEUNG Yu-chung without any other independent evidence to confirm his testimony."

28. Mr. McCoy, of course, contends that, leaving aside consideration of lies as corroboration, Crown Counsel was, in the passages complained of, suggesting to the jury that they make use of lies not only when assessing credit but also as direct proof of guilt and that a Broadhurst direction was called for.

29. Given the direction set out above in which the jury were told, in no uncertain terms, that the matter was "a case of credibility depending on whose evidence is believed" there was, we are satisfied, no necessity to give any such direction. The jury was clearly directed that that matter was to be resolved by determining who they believed and who they did not believe. We see no danger that they might have made some improper use of lies. The application for leave to appeal against the convictions is refused.

Re Sentence:

30. The applicant also seeks leave to appeal against sentence. On the count of counselling and procuring to unlawfully and maliciously cause grievous bodily injury he was, on 27th July 1991, sentenced to imprisonment for seven years. On the count of attempting to pervert the course of public justice he was sentenced to imprisonment for 5 years. These sentences were ordered to be consecutive to each other and consecutive to sentences totalling 18 months' imprisonment, later increased to 4 years by the Court of Appeal, on moneylending offences imposed on 10th August 1989. The sentences of 18 months imposed on 13th March 1989 for assisting offenders who were persons involved in the assault which was at the core of the present offences would have been served by 27th July 1991. He was, therefore, in March 1990 still serving the sentence imposed on the assisting offenders charge. When sentencing the judge said:

"WONG Kwai-fun, the jury have found you guilty of the second count of counselling and procuring to unlawfully and maliciously cause grievous bodily harm to CHONG Kai-ming with the same intent to cause him grievous bodily harm.

The jury have also found you guilty of the third count of attempting to pervert the course of public justice. They have acquitted you of the first count of counselling and procuring the murder of CHONG Kai-ming. Clearly, in coming to this conclusion, the jury must have found that it was not within your contemplation that death would probably have resulted, but apparently they must have found also that it was within your contemplation that serious bodily injury would probably have resulted and you intended that to result.

I have listened very carefully to the mitigation put forward by Mr. Sedgwick on your behalf and in the past five weeks I have also paid very careful attention and observation to you, especially when you were in the witness box. I have heard evidence, very detailed evidence, of your background. There is no doubt that you are a man of some intelligence, despite your limited education, but unfortunately, you have misapplied or misused that intelligence.

From your criminal record you have been in trouble with the law on many occasions and you have tried to put the blame on the police that it was their persecution that was the cause of your dislike and contempt for the police. But apparently, after what I have heard from the evidence in this case, and after what I have observed from you, this is not true. You hated the police because they have stood in your way to allowing you to conduct your criminal business and activities and they have tried their best to stop you from doing that. You talk about justice, but apparently you have a misconception of justice. The law is only just - to you - if it allows you to do what you want. You have no respect for the law whatsoever. You are also a man of violence, and prepared to use violence to achieve your aims.

Mr. CHONG Kai-ming was completely innocent in this matter, but because he refused to pay a debt for money, however that debt had arisen, for his brother, you resorted to violence against him. You should have realised using an iron water pipe to hit a man could, and would, have carried serious consequences.

We live in a civilised society. We will not allow that conduct to happen. Now the jury have found you not guilty of the first count and I think it is right to say that if you had not ordered the assault, Mr. CHONG would still be alive today. You have done enormous damage to his family that is beyond any compensation.

You have been referred as the 'boss' in the evidence and I have no doubt that you were the boss. You were the boss of an organisation of criminal activities. You carried out your illegal and criminal activities in your office and you employed gangs to do the dirty work for you and you were a faceless and heartless boss.

Now, about these letters. These letters disclose a most wicked scheme which could only have been devised and concocted by the worst type of criminal mind. If your evil ideas had been implemented, I have no doubt that it would have the effect of grossly undermining the judicial legal system and resulting in a gross miscarriage of justice.

All in all, I have come to the conclusion that you are a dangerous man and a menace and a nuisance to society. I take a serious view of the charges of which the jury have properly found you guilty."

31. The grounds of appeal suggest that the judge "made significant errors in sentencing the applicant". They are particularized as follows:

"(a) There was no evidence that the Applicant kany other weapon would be used in the new 'an iron water pipe' or assault."

This is not so. It was the evidence of Cheung Yu-chung, as set out by the judge in his summing-up, that the applicant told him "tonight I want you to tell the boys to use iron water pipe to hit him when he finishes his work."

"(b) The Judge sentenced the Applicant or appeared to sentence him on the basis that death was counselled by the Applicant.

This submission arises out of the following observation of the judge when sentencing:

"Now the jury have found you not guilty of the first count and I think it is right to say that if you had not ordered the assault, Mr. Chong would still be alive today."

The judge was not here sentencing on the basis that death was counselled but upon the basis that grievous bodily harm was counselled which, in the event, resulted in death. He was entitled to take into consideration the consequences which resulted from the directions which the applicant gave to the assailants.

"(c) The Judge wrongly took into account matters for which the Applicant was neither charged nor convicted in the trial."

The passage complained of reads as follows:

"You have been referred as the 'boss' in the evidence and I have no doubt that you were the boss. You were the boss of an organisation of criminal activities. You carried out your illegal and criminal activities in your office and you employed gangs to do the dirty work for you and you were a faceless and heartless boss."

We see no reason to think that the judge was giving weight when sentencing to criminal activities other than those revealed by the evidence called to prove the counts on which the applicant was convicted.

"(d) The Judge failed to take into account the sentence of 18 months imprisonment imposed on the Applicant earlier, for another aspect of the same offence."

There is no reason to think that the judge failed to take that sentence into account. Immediately before sentencing the following passage occurred:

"Mr. Sedgwick:

............

Another matter that I would strongly urge your Lordship to consider is that, that he has already served a sentence of imprisonment in respect of what is, for all intents and purposes, the same offence. Your Lordship will recall he has already had a sentence imposed upon him of assisting offenders and that was in effect the old offence of being an accessory after the fact to murder. I would invite your Lordship to say that if all the matters

Court:

The sentence he is now serving is four years for the letter of credit fraud and 18 months for the assisting of the disposal of the car.

Mr. Sedgwick:

That is correct. He has already completed the sentence in respect of the assisting of offenders charge, at least he has served 18 months in respect of that.

Court:

So the only sentence he is still serving is the four years for the letter of credit fraud?

Mr. Sedgwick:

That is correct. I would respectfully suggest that it would be proper for your Lordship to approach matters on the basis of: (a) deciding what is perhaps the appropriate sentence; and (b) giving some reduction in respect of the time already served in respect of the accessory after the fact offence."

The judge must have had the other sentences in mind and was entitled, given that their nature, to refuse to give any reduction because of them.

"(e) The sentence imposed on the Applicant in relation to Count 3 was manifestly excessive having regard to the remoteness of the attempt from the trial proceedings, the high improbability of it ever succeeding, and the possibility that it was induced by instability caused by a prolonged period of incarceration."

We find it difficult to see what exactly is meant by this ground. The attempt was, we have no doubt, seriously intended and had the confederates been prepared to cooperate could well have been carried forward to the point where it would have proved a serious threat to a proper trial. We reject any suggestion that it was so remote from the trial and unlikely of success that it should be regarded as an offence of minor criminality. As to the suggestion of mental instability we do not consider that anything was placed either before us or before the trial judge in this regard to warrant its being given weight as a mitigating factor.

32. Mr. McCoy argued further that even if these factors were not worthy of weight the sentence of 5 years given the facts of the offence, was excessive as it resulted in an overall sentence of 12 years. He pointed out that the offender who struck the fatal blow was sentenced to imprisonment for three and a half years. Despite the fact that it was a serious offence we think that there is merit in this submission. When considering the sentence imposed we are mindful of the words of Cons V.P. said, at p.269, in The Attorney General v. Yeung Kwong Chi [1989] 1 H.K.L.R. 266 when dealing with an offence of this nature:

"It is necessary not only to punish and deter such wicked behaviour, but to mark the absolute repugnance with which the public views such deliberate abuse of the criminal process."

We are, however, satisfied that the consecutive sentence of 5 years leading to a totality of 12 years, was too onerous. We consider that a sentence of 3 years would have been proper giving an overall sentence for the 2 offences of 10 years.

The application for leave to appeal against sentence is allowed. The hearing of the application is treated as the hearing of the appeal. The appeal is allowed and the sentence of five years on the count of attempting to pervert the course of public justice is reduced to one of 3 years to be consecutive to the sentence of 7 years on the count of counselling and procuring.