HKSAR v. MOK WAI HUNG

HCMA 5/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 5 OF 2000

(ON APPEAL FROM TMCC 1767/1999)

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J U D G M E N T

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1. On 8 November 1999, the appellant Mok Wai-hung was convicted after trial before Mr Joseph Yau, Permanent Magistrate, sitting at Tuen Mun Magistracy, of the following three charges, first careless driving, second, driving a motor vehicle with an alcohol concentration in the blood exceeding the prescribed limit - namely 82 mg of alcohol in 100 ml of blood and third, doing an act or acts tending and intended to pervert the course of public justice. He was acquitted on the first charge and convicted on the other two.

2. On 7 December 1999 Mr Yau sentenced him to pay a fine of $4,000.00 and disqualified him from driving for 9 months in respect of the 2nd charge and to 6 months immediate imprisonment in respect of the 3rd charge.

3. Originally, the appellant appealed against both conviction and sentence. On 24 November he abandoned his appeal against conviction, but proceeded with his appeal against sentence in respect of the third charge only. After hearing argument I reserved my judgement to today.

4. The appellant is now aged 24. He was a police officer. He was the 2nd defendant at trial. The prosecution's case was that on late evening of 24 March 1999 he was the driver of a private car, the person occupying the front passenger seat was the 1st defendant at trial - his girlfriend. The first four prosecution witnesses were workers engaged in rubbish collection and cleaning duties on the Tuen Mun Highway in the New Territories. The appellant drove up to one of them in a manner that frightened her and caused her to fear for her safety. She remonstrated with the driver - the appellant - about his manner of driving. An argument ensued and another worker accused the appellant of driving while drunk. On hearing that, the Appellant said that he would have another person as the driver of the vehicle if a report were made to the police. The police were summoned and the appellant told them that his girlfriend (referring to the 1st defendant) not he was the driver of the car.

5. It was common ground at trial that the police came to the scene to investigate traffic offences including drink-driving and that part of their investigation was directed at establishing the true identity of the driver of the vehicle involved. It was also common ground that the appellant had a concentration of 82 mg of alcohol per 100 ml of blood at the material time.

6. At trial the appellant was represented by counsel. In mitigation immediately following conviction, he pointed to the appellant's clear record and invited Mr Yau to call for reports. Mr Yau acceded to that request and ordered background and Detention Centre suitability reports.

7. Mr Graham Harris, who appeared for the appellant on appeal, represented the appellant at resumed hearing. He persuaded Mr Yau to call a Community Service Order report. At the re-resumed hearing, Mr Harris adopted his earlier submissions in mitigation and added that as the report said the appellant was a suitable subject for a Community Service Order, Mr Yau should make such an order.

8. The essence of the submissions in mitigation were that the concentration of alcohol was only marginally over that prescribed; the conduct giving rise to the perverting of public justice charge was done on the spur of the moment and without opportunity for reflection; the appellant had not perjured himself in court; there had been co-operation between prosecution and defence in the conduct of the trial; the reports were favourable to the appellant; the appellant comes from a good family and has a previous good record and a good police service record. The consequences of the conviction on his job and pension rights was emphasised. Mr Harris urged Mr Yau to impose a community service order on the appellant.

9. In his extempore reasons delivered at the time of sentence, Mr Yau noted that the normal sentence for doing an act or acts tending and intended to pervert the course of public justice was an immediate custodial sentence. He acknowledged that although the appellant's conduct did not involve his duties as a police officer, this did not alter the seriousness of the offence. He said that he had carefully considered ordering the appellant to undertake community service, but in the end result he considered that the only alternative open to him was an immediate custodial sentence. In his written statement of findings, Mr Yau said that an order for community sentence was not an appropriate order.

10. It is common ground in this appeal that the only real issues are whether Mr Yau erred in imposing an immediate custodial sentence and whether he ought to have imposed a community service order.

11. There can be no doubt that the Hong Kong courts regard conduct amounting to doing an act or acts tending and intended to pervert the course of public justice as a very serious matter, one that almost inevitably attracts some form of immediate custodial sentence.

12. In A-G v. Yeung Sau-shing [1981] HKC 129, 132, it was said:

"It is not in dispute that attempting to pervert the course of justice is always a serious offence, although that's being said, the actual gravity in any given situation will depend upon the circumstances, which may vary very widely from one case to another. It is accepted by both sides that it usually attracts a sentence of immediate imprisonment or other form of custody. Counsel for the Crown would also qualify the word 'imprisonment' by the word 'substantial', and with that we would generally agree. Otherwise, the difference between counsel on either side is really one of emphasis. Counsel for the Crown suggests that departure from that principle should only be in exceptional circumstances. Counsel for the respondent prefers to put it that immediate imprisonment will follow in most cases, but by no means all."

13. In A-G v. Yeung Kwong-chi [1989] 1 HKLR 266, (Per Cons VP) the Court of Appeal held that the normal sentence for an attempt to pervert the course of public justice was one of immediate imprisonment and this was to be the sentence unless there were 'abnormal' circumstances. The Court observed that such sentences were 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."

14. The Court also observed that in this context a clear record, good family and the likelihood of a future blameless life were by no means unusual features of offenders.

15. Coming nearer the present time, in R v. Ng Chun-ming Mag App 910 of 1995 (unreported) it was said that even 'low grade' attempts to pervert the course of public justice call for immediate custodial sentences. And continuing support for the almost inevitable immediate custodial sentence can be seen in HKSAR v. Tse Lin-soong HCMA 995 of 1999 (unreported).

16. Mr Yau clearly had discretion to impose a community service order. In S-J v. Li Cheuk-ming [1999] 1 HKLRD 63, Chan CJHC (as he then was) held that such orders are options in even serious cases such as corruption, though that would only be so in exceptional cases. He noted that such orders have components of both rehabilitation and retribution.

17. A Community Service Order was imposed in HKSAR v. Chow Chak-Man & Another CA 447 of 1998 (unreported) which involved a burglary of domestic premises, where the usual sentence is an immediate custodial sentence. In that case the Court of Appeal followed the English case of R v. Brown (1981) 3 Cr App R (S) 294 in which guidance was given on the characteristics of the offender who is a suitable subject for such orders.

18. In HKSAR v. Shuichi Ogawa HCMA 174 of 1999 (unreported) a Community Service Order was substituted on a charge of assaulting a police officer where ordinarily a custodial sentence would be the normal sentence.

19. By contrast, the possibility of Community Service Orders have been rejected in 'road rage' cases - HKSAR v. So Ming HCMA 264 of 1998 (unreported); assaults on public officers - HKSAR v. Lam Wai-Hung HCMA 333 of 2000 (unreported); and assaults involving bodily harm - HKSAR v. Law Hon-Hing HCMA 341 of 2000 (unreported).

20. Mr Yau clearly was aware that he had a discretion to impose a Community Service Order. He exercised his discretion carefully, in accordance with principle and with the advantage of having full and careful submissions and reports about the sentencing options open to him. His exercise of that discretion cannot be faulted.

21. I am of the firm view that a sentence of immediate imprisonment must be the almost inevitable sentence for an offence of perverting the course of public justice. I am aware that Community Service Orders are not 'soft options'. Indeed a Community Service Order may be regarded as more onerous than the other alternatives to immediate imprisonment such as Probation Orders and suspended sentences because of the requirement for supervised work. I accept that the appellant's personal characteristics appear to meet the Brown guidelines. I accept that there are occasions when a community service order can be imposed on the offender, even in relatively serious cases, but this is not one of them. I do not accept that the appellant acted on the spur of the moment. The appellant's first assertion to the cleaning worker could possibly be characterised as such, but when the police arrived he made a positive deliberate and dishonest statement to them.

22. I appreciate that the appellant did not by the use of express words abuse his office as a police officer - he did not for example make that claim to the cleaning workers in an attempt to intimidate them. But as Mr Andrew Bruce SC, for the respondent, said in argument he was a police officer, he had taken on the mantle of a police officer, and higher standards of probity were expected of him.

23. The appellant's appeal against his sentence on the third charge of doing an act or acts tending and intended to pervert the course of public justice is dismissed.