HKSAR v. YEUNG CHIN HONG

HCMA 487/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 487 OF 2008

(ON APPEAL FROM TWCC 748/2007)

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J U D G M E N T

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1.  The Appellant was convicted in the Magistracy on his own plea of one count of conspiracy to pervert the course of public justice.  He was sentenced to a Detention Centre Order and appealed against the sentence.

2.  The Appellant had been named as the driver of a speeding car and failed to comply with a Notice asking him to identify the driver at the time of the incident.  He told the Magistrate that the owner of the car had told him to give false information to police in his witness statements made on 20 November 2005 and 19 January 2006.

3.  After the Appellant’s conviction, the prosecution decided to proceed on a charge of conspiracy to pervert the course of public justice against the owner of the car, Mr. Cheng.  The Appellant agreed to give evidence as a prosecution witness; he was the only witness for the prosecution and at the conclusion of the trial Mr. Cheng was acquitted.  The Magistrate commented that the court did not believe the appellant’s evidence which contained contradictions and changes of evidence as to when he had driven the car.  An independent defence witness had testified that the appellant called her to tell her to change her statement to the police.  The court did not believe the evidence of the Appellant.

4.  The Appellant had a previous criminal record.  On 28 October 2004 he was convicted of careless driving and fined $1,000.  He was also convicted of driving a motor vehicle with alcohol concentration above the prescribed limit, for which he was fined $4,000 and disqualified from driving for a period of six months.

5.  The Appellant had a record of convictions for similar offences in 2008, but the Magistrate did not take those convictions into account in sentencing because they had occurred after the date of the present offence.

6.  Counsel for the Appellant who represented him on sentence submitted that a Probation Order or a suspended sentence might be a sentencing option and that was the submission the Appellant maintained before this court.  Counsel pointed out that the Appellant had been detained at Lai Chi Kok Reception Centre from 15 January 2008 to 6 February 2008.  The Appellant prayed that in aid as mitigation, but it cannot be mitigatory because that detention resulted from the Appellant’s failure to appear in court on 7 January 2008, as he had been required to do as one of his bail conditions.

7.  The Appellant who appeared in person put forward various grounds of appeal.  He complained that his sentence was too heavy.  First of all, he said he was ignorant of the law and he had been misled; that he had only wanted to help his friends; he himself had good intentions but he had received no benefits.  He then said that he had become a tainted witness but because of lapse of time he had forgotten some details of the events, which was why his evidence was not satisfactory.  He said that the Magistrate had not taken into account in his favour that he had been a witness; in fact the Magistrate did take this into account.

8.  He said that since the incident, he had been worried about this case because he did not know what sentence he would be given and on that basis he had refused promotions offered by his employer.  He submitted that should constitute part of his punishment.  Further, his mother needed to take medication for epilepsy and was unable to work, which made him the sole breadwinner of the family.

9.  The Appellant referred to his being detained in January 2008.  He had felt the pain then of losing his freedom and submitted that should be taken into account in considering his appeal against sentence.  The Appellant realized that he had to be law-abiding and he deeply regretted his recklessness on this occasion.  He wished to have a more lenient sentence and suggested either a suspended sentence or a Community Service Order.

10.  I considered the reports obtained by the Magistrate, a background report and a Detention Centre report.  The latter report recommended the Appellant as mentally and physically fit to serve a Detention Centre term.  The Magistrate took into account the serious nature of the case and imposed a Detention Centre Order.

11.  The Magistrate found the Appellant’s assistance in giving evidence against Cheng was not of any value and believed he had come to the court to tell a lie.

12.  This was a serious offence for which a sentence of imprisonment was justified.  The Magistrate took all relevant matters into account before sentencing.  The matters raised by the Appellant in his written grounds or in his submissions on appeal were considered by the court.  The sentence is neither excessive nor wrong in principle.

13.  Accordingly the appeal against sentence is dismissed.