HKSAR v. KHAN IBRAR

CACC 149/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 149 OF 2012

(ON APPEAL FROM DCCC NO 1081 OF 2011)

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J U D G M E N T

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1.  The applicant seeks leave to appeal out of time against the sentence of 4 years’ imprisonment imposed on him on 2 April 2012 on his conviction after trial, on 30 March 2012, by Deputy District Court Judge Joseph To, of a single charge of doing acts tending and intending to pervert the course of public justice, contrary to common law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221.  The applicant was sentenced to 4 years’ imprisonment.

2.  The applicant lodged a form 11 on 3 January 2013, seeking leave to appeal against the sentence out of time.  The applicant’s grounds of appeal against sentence assert simply that the sentence for 4 years’ imprisonment imposed upon him was “too heavy” and “wrong in principle”.

3.  In his reasons for sentence, the judge noted the facts of the case as being this: 

“On the early morning of 6 May 2011, the 2nd defendant, that is this applicant, made a false report to the police claiming the co-defendant at trial had been abducted at knifepoint the night before by a group of male persons of South Asian origin. The kidnappers had driven away in a black private car, followed by a white van. The applicant claimed to be able to recognise one of the two knifed-kidnappers - by that, I suppose he meant possessed of knives - whom he had seen near a certain storage yard in Tai Nan Street, Sham Shui Po.

He took two police officers to a storage yard at Pak Heung. Upon arrival, the officers noted a number of South Asian men were scattered about, looking for the co-defendant. They somehow found or noticed the co-defendant at the back of an enclosed storage yard. They alerted the officers and the applicant helped to open the door at the entrance of the storage yard and entered with the officers. The officers noted it was pitch-dark inside and that the co-defendant was bound up on the ground at the far end of the yard. One of the two officers cut him loose. The applicant’s co-defendant complained of being kidnapped and assaulted and that his property had been taken away. He heard, during the kidnap, that the abductors called each other by their full names, one of whom was Iltaf Hussain. The police sent him to hospital for examination. No injuries were found.

The two defendants directed the police to the location where the alleged abduction had taken place. The police seized from a nearby company the CCTV records which showed, however, no black private car and white van had driven into or past the relevant location at the material time. Then the defendants took the police to Tai Nan Street, to a flat occupied by, as it turned out, a Mr Iltaf Hussain. No one answered the door when the police and the defendants arrived.

It transpired that this Iltaf Hussain was the tenant of the storage yard next to the one where the co-defendant was found and, more significantly, a witness in a criminal investigation. Mr Iltaf Hussain had earlier attended an identification parade in which he had picked out a suspect. On 7 May 2011, Mr Iltaf Hussain received a telephone call from an unknown person, asking him to withdraw the criminal complaint he made to the police. The caller said he had made up a case of kidnap and robbery against him.

The court finds beyond all reasonable doubt that the kidnap was a false one, the purpose of which was twofold: first, to get Mr Iltaf Hussain arrested for a false charge of kidnap and robbery and, second, to force him to withdraw a criminal complaint to the police.” 

4.  In his reasons for sentence, the judge noted that the applicant was a married man with three children and that his wife was expecting to deliver their fourth child in August 2012.  He noted that he had come to Hong Kong in 1993 to join his father and that he worked as a driver but, at the time of sentence, was unemployed.  He and his family lived on social benefits.

5.  The judge found that the circumstances of the instant case fall within “the worst of its kind”.  He said that the applicant and his co-accused had “worked together to generate a false charge of kidnapping against an innocent person”.  The immediate purpose was to get him arrested which did not, as it turned out, materialise, and that the ultimate aim was to force him, a witness in a criminal case, to abandon that course.  He noted that the false charge was of a serious offence which, on conviction, would have resulted in the innocent person facing a significant term of imprisonment.  Of those circumstances, he said:  “In the court’s view, public interest cries out for a sentence with clear and sufficient deterrence”. 

6.  In the result, the judge sentenced the applicant and his co-defendant at trial to 4 years’ imprisonment.  There is no dispute that perverting the course of public justice is a serious criminal offence.  Equally, it is clear that it may be committed in many different circumstances so that the gravity of the offence will depend on the particular facts obtaining in a specific case.  Accordingly, as the Vice President, Nazareth J, noted in The Attorney General v Chan Siu Wai [1997] 2 HKC 660 at 664F:  “There are no sentencing guidelines”.

7.  In my judgment, the judge was correct to have regard to the gravity of the fabricated allegation, namely armed abduction and criminal intimidation, the purpose of which was to interfere with the administration of justice.  The personal circumstances of the applicant were irrelevant.  The offence was extremely serious.  The judge was correct to determine that a deterrent sentence was required.  In my judgment, the sentence imposed upon the applicant was entirely appropriate. 

8.  The applicant advances no real explanation for the fact that his application for leave to appeal against sentence is eight months out of time.  Today, he asserted impecuniosity as being the reason.  As counsel for the respondent submitted, the applicant filed his application for leave to appeal against conviction on 17 April 2012.  That is within three weeks of his conviction.  He subsequently abandoned that application.  Clearly, the applicant was aware of the procedural requirements.

9.  There being no explanation for the fact that the application for leave to appeal against sentence is out of time by eight months, and having regard to the fact that there is no merit whatsoever in the proposed grounds of appeal against sentence, the application for leave to appeal against sentence out of time is refused.