THE QUEEN v. POON SAU TIN

Headnote

Making a contradictory statement of fact on oath – level of sentence.

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JUDGMENT

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Hon. Yang, C.J.:

1. The Applicant was convicted by Judge Pang after trial in the District Court of wilfully making a contradictory statement of fact on oath, contrary to S. 39 of the Crimes Ordinance, Cap. 200. He was sentenced to 18 months' imprisonment and a fine of $5,000. He had originally sought leave to appeal against both conviction and sentence. He later abandoned his appeal against conviction but maintained his appeal against sentence.

2. Six persons were charged with a burglary committed in the early hours of 21st July 1988 at a warehouse in Kwun Tong where $350,000 worth of brandy was stolen. The applicant was one of the prosecution witnesses at the trial.

3. The trial began on 7th November. Of the six persons charged only three appeared, the other three had absconded. Of the three who appeared in court two pleaded guilty and one pleaded not guilty. At the trial the applicant gave his evidence in accordance with his witness statement as a result of which the accused who appeared for trial was convicted of the alternative offence of handling stolen goods.

4. One of the persons who had absconded was re-arrested. His name is Chan King-wo and he is the applicant's cousin. In Chan's trial on 16th May 1989 the applicant again gave evidence in accordance with his witness statement. His evidence was that he found Chan had stored boxes of brandy in his (the applicant's) goods vehicle without his consent. On being confronted, Chan replied, "I know you have a goods vehicle so I stored the brandy there." Chan, on being asked how he got the brandy, told the applicant, "Don't ask too many questions. I will move them away as soon as possible.'' The applicant then told Chan to remove the brandy immediately. Under cross-examination the applicant insisted that his cousin had told him that he had stored the brandy in the vehicle.

5. Due to certain technical errors for which neither the applicant nor Chan was responsible, the trial had to be aborted. Three days later, on the 19th, the trial re-opened before another judge and again the applicant gave evidence. This time however he gave a different account. He told the court that Chan told him his friend had placed something in the applicant's vehicle. He denied that there had been any reference to the boxes in the course of his conversation with his cousin or that he had told his cousin to remove them. As a result the Crown offered no further evidence against Chan and he was acquitted.

6. It was the evidence which the applicant gave on the 19th that gave rise to the conviction by Judge Pang.

7. In the Reasons for Sentence the learned judge noted that the maximum sentence allowed by law is seven years' imprisonment plus a fine. He also took the view, in our judgment correctly, that sentences for this type of offence should be in line with that for perjury, and that an immediate custodial sentence was called for. He took into account the applicant's clear record and the fact that he had led an industrious life. Indeed the probation report on him called for by the judge is extremely favourable, showing him to be a self-made man, a good husband and father, and otherwise leading an exemplary life.

8. Having reviewed two authorities, and observing that "people should not be permitted to go to court and make a mockery of the judicial system and give testimony under oath in order to achieve their own selfish objectives", he sentenced the applicant to 18 months' imprisonment and a fine of $5,000.

9. The first authority referred to by the judge was So Chun-man v R (1976) Cr. App. No. 1218 (unreported), where a sentence of two years was reduced to 12 months for perjury committed to assist a relative. Them, however, the appellant suffered from psychiatric disorder and had attempted to commit suicide on two occasions.

10. The second authority referred to was R v Lo Fu-keung [1980] HKLR 191, where a sentence of 12 months was upheld in respect of a polio officer who, as a prosecution witness, gave false evidence in a criminal trial in order to conceal the fact that he had been asleep in the police station whilst on duty. The accused in the criminal trial was acquitted.

11. The Attorney General v Suen Chun-kwong [1980] HKLR 543 is also a case of making a contradictory statement on oath, but it does not assist us because unlike this case, there the accuse had told lies on oath in his own defence.

12. The case of R v Davies (1974) 59 Cr. App. R 311 was considered in R v Lo Fu-keung (supra) where the English Court of Appeal upheld a sentence of 12 months' imprisonment on a father of two sons who said dishonestly and falsely on oath in mitigation that each son was gainfully employed.

13. Perhaps the most authoritative decision in Hone Kong is The Queen v Wu Wing-keung (1988) Cr. App. No. 202 (unreported) where Hunter, J.A., adopting a suggestion by Macdougall, J. (as he then was), divided perjury into three different categories.

14. Firstly, the man who commits perjury in the course of giving evidence in his own defence. The law looks upon him somewhat benevolently.

15. Secondly, there is the not unusual situation of a member of the family to give support to another member, e.g. R v Davies (Supra).

16. Thirdly, and this is the most serious of the three categories, a third party who gives false evidence deliberately in support of a defendant.

17. In the present case, it does not appear that the learned judge had the benefit of the judgment of the Court of Appeal in Wu Wing-keung before him. This authority would have assisted him in assessing the gravity of the present offence in a proper context. After anxious consideration we were of the view that since the present case falls within the second of the three categories described by Hunter, J.A., and in all the circumstances, the sentence was too severe.

18. We therefore allowed the application, treated the hearing of the application as the hearing of the appeal and allowed the appeal. The sentence was accordingly reducer from one of 18 months to 12 months, the fine to stand.