HKSAR v. BRIAN ALFRED HALL

DCCC 1431/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1431 OF 2009

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REASONS FOR SENTENCE

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INTRODUCTION

1.  In 1998, the defendant (“D”) was sentenced to 18 years for trafficking in a dangerous drug.  He was mostly detained in Stanley Prison (“SP”).  He speaks and writes English well.  There were frequent confrontations between him and the Correctional Services Department (“CSD”), resulting in his being tried in courts and CSD disciplinary proceedings. 

2.  The present trial concerns 4 sets of copied documents (“the Copies”) presented by D in aid of his case in 4 courts.  The prosecution has proved that D knew they were forged but still used them, hence liable for the 4 Charges (1^st, 2^nd and 3^rd Charges for perverting the course of public justice and 4^th Charge for using copies of false instruments).  Legal technicalities apart, there ismore resemblance than difference among the 4 Charges.  Events happened in the same sequence as the Charges.  D was convicted of all 4 charges after trial.     

PROSECUTION EVIDENCE ESTABLISHED

Evidence specific to 1^st Charge

3.  It relates to his appeal to the Court of Final Appeal (“CFA”) against his conviction in ESCC 3093/2004for assault of a CSD staffer.  On 13 October 2008, he made an affirmation to the CFA (“Affirmation to CFA”) exhibiting the Copies of 2 CSD staff statements not disclosed to him at trial. (Note: In this Reasons for Sentence, I shall capitalize “Copies” or “Copy” to signify them or it, as the case may be, as the copied document(s) presented by D in the court(s) as particularized in the 4 Charges). 

4.  The Copies, which bore contents different from the oral evidence in court, reflected a possible case of false evidence given by the 2 prosecution witnesses (“PWs”) before the trial magistrate.  His Affirmation to CFA stated how he had accidentally discovered them from a certain CSD file and then formally acquired Copies from CSD.  On 30 June 2009, CFA allowed his appeal on the ground of P’s material non-disclosure.

5.  I found it as a fact that the originals of the Copies had not been made and/or signed by the PWs.   

Evidence specific to 2^nd Charge

6.  He presented the Copies of 1 CSD staff statement and 1 CSD ‘Important Notice’ for cross-examination of PWs at his trial in ESCC 5737/2007 (which took place on 26 November 2008) for the assault of a SP medical officer.  The Copy of staff statement, which bore contents different from the oral evidence in court, reflected a possible case of false evidence given by the PW (i.e. PW21 TAM Kin-man) before the trial magistrate.  The Copy of ‘Important Notice’ contained an institutional policy to falsify evidence and use violence against him.  He told the trial magistrate how he had accidentally discovered the originals and then formally acquired the Copies from CSD.

7.  I found it as a fact that the originals of the Copies had not been made and/or signed by the PWs.  Actually, the handwriting expert had also found the signature (of PW17 CHAN Kong-sang) in the Copy of ‘Important Notice’ cut-and-pasted from a copied document of his previously served on D. 

Evidence specific to 3^rd Charge

8.  He presented the Copies of 2 CSD staff statements and the same ‘Important Notice’ for cross-examination of PWs at his trial in ESCC 2175/2007 (which took place between 8 December 2008 and 2 April 2009) for the assault of a CSD staffer.  The Copies of staff statements (of PW20 LAM Wai-man and PW22 LEUNG Tai-wai), which bore contents different from the oral evidence in court, reflected a possible case of false evidence given before the trial magistrate.  The Copy of ‘Important Notice’ was the same as aforesaid relating to 2^nd Charge.  He told the trial magistrate how he had accidentally discovered the originals and then formally acquired the Copies from CSD.

9.  I found it as a fact that the originals of the Copies had not been made and/or signed by the PWs.  Actually, apart from the forged signature on the Copy of ‘Important Notice’ as aforesaid, the handwriting expert had also found the signatures (of PW20 and PW22) in the Copies staff statements cut-and-pasted from copied documents of theirs previously served on D. 

Evidence specific to 4^th Charge

10.  He wrote a letter to Yam J (“His Letter to Yam J”) to seek directions which touched upon a large number of civil and/or disciplinary proceedings.  It contained the Copies of 5 CSD ‘Medical Reports/Advices’ [P15 BAH 1 – 5], 4 CSD Notes of disciplinary proceedings (“Notes”) [P15 BAH 6 – 9] and the same ‘Important Notice’ [P15 BAH 10] in support of his application. 

11.  Each ‘Medical Report/Advice’[P15 BAH 1 – 5] contained findings made by the signing medical officer approved by the countersigning Superintendent.  The Superintendents had each sat as the adjudicator in D’s disciplinary proceedings.  They each refused D’s application for their recusal from adjudicating in D’s proceedings.  The Notes were each their signed records to the same effect.  If his convictions were to be set aside, his forfeited remission of sentence consequential to his convictions would be reinstated.  (In mitigation today, defence counsel has informed me that it was 1 year and 3 months in total.) 

12.  I found it as a fact that the originals of the Copies had not been made and/or signed by the PWs.  Actually, apart from the forged signature on the Copy of ‘Important Notice’ as aforesaid, the handwriting expert had also found each Copy of the ‘Medical Reports/Advices’ to have, in an identical manner, various headings of font and printing quality inferior to other parts of the same document as well as the dates and names sitting on a horizontal alignment different from other parts of the same document.  They were demonstrably cut-and-pasted from other documents. 

Evidence applicable to all charges

13.  In late 2008, in the aftermath of D’s presentation of the Copies in court, the police had embarked on a criminal investigation of forgery of various staff statements in liaison with CSD. 

14.  In early May 2009, in the aftermath of D’s Letter to Yam J, DOJ took instructions from CSD, which conducted a civil internal investigation by interviewing the purported makers and/or signatories as well as searching the files.  After the civil investigation, CSD reported the matter to the police as a criminal case of forgery. 

15.  The police executed a search warrant on the room of D’s female friend and frequent visitor, Almendral.  They seized a bundle of letters D had sent her.  The handwriting expert construed from those letters a set of instructions to forge documents.  I find as a fact that D had exploited a loophole in thesecurity of CSD through this measure. 

16.  In one of the letters to Almendral, he had even asked her to visit him to deal with certain urgent matter.  Before dispatch either by hand or mail, one has only to split up a template or a set of instructions to minimize the risk of detection.  The whole set of instructions can be acquired through letters alone, visits alone or letters coupled with visits.  The prisoner’s correspondent or visitor may even simply be the agent of someone else so that the latter’s name would not be shown on the mail and visit record.  SP worked shifts. Different staff worked in the mail section and the visit section.  An individual staffer can only see a part of the template or written instructions if materially truncated or segregated to avoid suspicion. This is clearly a workable scheme to foil the security. 

17.  The police next executed a search warrant on D’s cell.  They seized a template [P27] of ‘Medical Report/Advice’ [P15 BAH 1 – 5] and a lot of documents emanated from CSD of various formats and contents. 

18.  After arrest and caution, D made 2 voluntary videoed interview records which denied forgery and maintained the same provenance from CSD file. 

CASE AS FOUND

19.  I found it the irresistible inference that D had instructed some people outside the prison to help him forge documents with the result that the Copies particularized in the 4 charges were created.  His purpose of the forgery was to present them in court proceedings and/or to the judges to mislead the courts and/or judges so as to gain an unfair advantage for himself in the judicial process. 

PERSONAL BACKGROUND AND MITIGATION

20.  D claims to be born on 10 October 1976, now aged 35, and a Nigerian.  He claims to have been a football player and business man in Nigeria.  He claims to suffer stiffness in neck and back, ears problems and piles fissure.  He is single and not a drug addict.  He is still in the custody of CSD.  If believed by the respective courts, the consequence would have been as follows:-

(1) 6 months’ sentence avoided in the CFA under 1^st Charge;

(2) $1,500 fine or in default 7 days’ sentence avoided in the magistracy under 2^nd Charge;

(3) 2 months’ sentence avoided in the magistracy under 3^rd Charge;

(4) 440 days of reinstatement of lost remission under 4^th Charge.

These figures are not disputed by P.

21.  His counsel submits that the advantage D might have gained was not substantial.  I think this alone is correct but this is not the end of the sentencing consideration.  The impact of those charges on the judicial system could be tremendous as in the potential deflection of justice under 2^nd, 3^rd and 4^th Charges and the actual deflection of justice under 1^st Charge, which involved finality of the judicial process in CFA. 

22.  His counsel submits that the offences had involved a low level of sophistication or planning.  I do not agree with this submission.  He had been exploiting the loopholes in the stringent security of SP.  He had written letters to people outside by truncating or splitting up instructions over a period of time to foil detection. 

23.  At the time of the offences here, the maximum sentence for perverting the course of public justice was 7 years and, for using a copy of a false instrument, 14 years.  His counsel invites me to sentence D based on perverting the course of public justice instead of using a copy of a false instrument as 4^th Charge differs in only the charge, a technical matter, not in substance from the other 3 charges.  I think this is correct for the purpose of the present sentence. 

24.  D has sought and obtained from me special leave to put forward certain aspects of the case which he considers relevant but defence counsel feels outside his professional code to do so himself.  I have listened to D’s own presentation and am satisfied that they are matters best left to be decided by the Court of Appeal and other courts as they are not within the ambit of the present trial and sentence. 

PRINCIPLES OF SENTENCE

25.  P has compiled a list of authorities to highlight the relevant factors at work which I find quite useful.  The defence has put in 2 authorities.

Perverting the course of public justice

26.  As regards perverting the course of public justice, the case of HKSAR v CHU Ka-sing CACC 104/2001 had an appellant who threatened his colleague so that the latter would minimize his incriminating evidence against a foreman, who was the defendant tried in the magistracy for various counts of false accounting.  The threat implied that the colleague’s wife’s safety might otherwise be at stake.  As the colleague was giving evidence, the appellant remained in the court room.  Felt threatened in court, the colleague expressly lapsed in his recollection of the evidence.  The foreman was acquitted, not much due to the colleague’s poor evidence but other evidence of the prosecution. 

27.  The sentencing judge took a starting point of 24 months.  The Court of Appeal regarded the threats, outside court and inside court, an aggravating factor.  The starting point was upheld.

28.  In Secretary for Justice v Wong Kwok-kau [2008] 6 HKC 277, the respondent was sentenced to 7 years for trafficking in dangerous drugs by the High Court.  According to the sentencing guidelines, the starting point was 21 years.  7 years was deducted due to his plea of guilty, with another 7 years deducted for being the supergrass in a drug deal where a bulk of drug was seized with no arrest.  It transpired that the drug deal was staged by a police sergeant and him.  He spent a lot of money in getting the drug as props and people to work out the play.  For the perverting charge, the court adopted 7 years as a starting point, which was reduced to 4 years and 8 months to reflect a plea of guilty.  His 7-year reduction in the drug case was reinstated on appeal.  The Court of Appeal ordered both sentences to be fully consecutive. 

29.  In Attorney General v Yeung Sau-shing [1981] HKC 129, the respondent tried to persuade the victim of an incident, which resulted in the latter being attacked and spending 18 days in the hospital, not to give evidence to the police to nail down the attacker, a friend of the respondent.  Money, though not any exact figure, was mentioned but could be understood as very substantial.  The sentence of 2 months suspended for 12 months was increased to 12 months’ immediate imprisonment on appeal. 

Using a false instrument

30.  Using copies of false instruments carries the same penalty as using a false instrument.  In HKSAR v Leung Mei-yong HCMA 1103/2006, the appellant was a solicitor.  She forged 2 termination letters and presented them as genuine evidence to the Labour Tribunal when sued for long service pay by an ex-employee.  If believed, she would have avoided a payment of $63,000 to the latter.  Taking into account her role as an officer of the court, the magistrate took the most of his sentencing jurisdiction of 2 years as the starting point.  The sentence was affirmed on appeal albeit said to be on the higher end of the spectrum.  

31.  In HKSAR v Gary Smith HCMA 220/2005, a case cited by defence counsel, the appellant used a forged cover note for third party insurance on his car.  His sentence of 10 months was substituted by 5 months suspended for 18 months on appeal.  The Court of First Instance expressly referred to his having spent 3 weeks in jail when allowing his appeal against sentence.  

Premeditation

32.  If the evidence shows that an offence is premeditated and well-planned, this is a seriously aggravating factor (Sentencing in Hong Kong by Cross and Cheung (6^th Edition), p 16). 

33.  In HKSAR v Lam Kam-tong [2005] 1 HKC 232, the 2 applicants each pleaded guilty to a separate count of head-bashing robbery committed by a small group.  There was much planning and organization in the robbery.  The normal starting point was 8 years but the court took 10 years and 11 years respectively due to the substantial planning and organization in the robberies as well as the large amounts of money taken. 

Potential consequences and impact on the victim as an aggravating factor

34.  It is a cardinal principle of sentencing that in assessing the gravity of the offence the court should consider the consequences to the victim: R v Nottingham CC ex p DPP [1996] 1 Cr App R (S) 283, 288).

35.  In HKSAR v Cheung Kwok Yip Peter [2010] 3 HKC 470, the applicant was aged 30 and the girl 12.  She was on her way home from school, in uniform, when the applicant followed her up the stairs of the building where she lived.  He brought her up to the rooftop by threatening to kill her if she made a noise.  On the rooftop he embraced her from behind for a while and forced her to perform oral sex on him after he pulled down his trousers and underwear.  She submitted under his threats of molesting her.  After the acts, he made an appointment to meet her again.  He took down her name and telephone number.  He threatened to harm her in case he found both fake.  She went home in great distress.  Her mother was apprised of the matter and reported it to the police. 

36.  He pleaded guilty and was sentenced to 6 years and 6 months from a starting point of 10 years.  He was a recidivist.  The victim impact report stated that the girl had experienced intense fear during the assault and could still vividly remember his threats. She remained insecure and frightened to go out alone.  There was the possibility of long-term impairment of her self concept, social and heterosexual relationship and value system.   The Court of Appeal upheld the sentence. 

37.  Counter to the severity of this case is HKSAR v Hwang Ting-kwan HCMA 1093/2007 put up by defence counsel.  There the appellant ate two drugged cigarettes which were exhibits seized from him.  He was convicted of perverting the course of public justice. His sentence of 12 months was reduced to 3 months on appeal.  Deputy Judge Line (as he then was) said:

“The sentence for perverting the course of justice has got to bear some relationship to what that course of justice was, and the course of justice that was engaged here was not a particularly grave one.”

Sentencing this defendant

38.  It is true, as submitted by defence counsel, that what he stood to gain might not be much in the instances of the CFA and the 2 magistracies whereas the quest for reinstatement of the lost remission had to be rather incipient in the instance of the High Court matter before Yam J.  I agree but this is not the most important factor here. 

39.  What is most important is that the defendant had orchestrated a well-planned and sophisticated attack on the judicial system and the CSD security system which lasted more than a year (Note: Those cases cited scarcely provided for any comparable duration).  If one looks at his Affirmation made to CFA on 13 October 2008 and the template of forgery seized in his cell on 30 July 2009, that only represents a core period of overt activities.  There were 15 forged documents in all 4 charges together.  There is no doubt that he had spent a lot of time in engineering their forgery with co-conspirators outside the prison to culminate in their exposure on 13 October 2008 and thereafter.  Given the compromised privacy of his prison cell and the restrictions as to documents or articles allowed to be dispatched in mail or visits, this had to be a horrendous and colossal project, ingenious and unprecedented in or outside of court. 

40.  I am alive to the sentencing principle that if an accused has committed a series of similar offences at different times, in different places and under different circumstances, (my emphasis) the court should first consider the most serious or more serious incident of the similar offences, the number of offences the accused committed and their degree of seriousness (Sentencing in Hong Kong by Cross and Cheung (6^th Edition), p 16).

41.  In Attorney General v Tai Chin-wah [1994] HKCLR 81, the respondent had uttered and possessed forged documents required at various junctures by various authorities to enable him to be admitted to practice as  solicitor in Hong Kong.  He practiced for some 10 years before the deception was cracked.  He faced 5 charges. 

42.  The Court of Appeal commented on the sentencing approach to start with an overall starting point for all charges as follows:

“We view all the charges laid against him as being intermingled one with the other and the sentencing judge was entitled to approach sentence on the basis of totality. A proper starting point for sentence would have been, after trial, 18 months to two years’ immediate custodial imprisonment. (para 63 per Silke VP)”

43.  I think this approach apposite in the present case as D’s whole idea and the mechanism adopted to cheat the courts, as well as the attending circumstances, is intermingled one and the same, the consequence equally serious.  I take 4 years as the overall starting point for each charge.  There are no mitigating factors.  His sentence is 4 years each to run concurrently.