THE QUEEN v. WONG KIM LUN AND ANOTHER

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J U D G M E N T

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Clough, J.A. :

1. The applicants are two police constables. They apply for leave to appeal against sentences of 15 months imprisonment imposed on them by Deputy Judge Surman in the District Court after they had pleaded guilty to a charge of jointly attempting to pervert the course of public justice.

2. The circumstances of the offence are out of the ordinary. However the applicants, who were represented by counsel below elected to plead guilty and thereby to admit the necessary intent which is one of the essential ingredients of the offence charged.

3. The particulars of the offence which the applicants admitted were that on the 15th May 1988 they had attempted to pervert the course of public justice by falsely representing that they had arrested a suspect at Platform 2, Kowloon and Canton Railway Station (Hung Hom) for attempted theft, intending thereby to pervert the course of public justice.

4. In fact the applicants did not arrest the suspect at Hung Hom station. They arrested him at Lo Wu Railway Station. On the day in question they had been members of a Task Force Team operating from Homantin Police Station. They were in plain clothes and assigned to perform anti-pickpocket duties between 7 a.m. and 3 p.m. in the area of the concourse and platforms of the Hung Hom Railway Station. They had instructions not to proceed by train beyond Kowloon Tong Railway Station in the course of their duties.

5. They were over zealous in the performance of those duties. It was not disputed by the Crown that having become suspicious of an individual while they were on duty at the Hung Hom Railway Station they tailed him in order to confirm their suspicions and followed him to Lo Wu where they arrested him in breach of their police instructions, but clearly within their legal jurisdiction.

6. Having made what seems to have been a lawful arrest the applicants took the suspect back by train to the police post at Hung Hom Station. At 10.45 a.m. they reported the arrest of the suspect for attempted theft and the possession of an instrument fit for an unlawful purpose, namely a paper cutter. They reported that the arrest had taken place at No. 2 platform, Hung Hom Station. This was of course untrue and done with the intention of concealing their breach of their instructions regarding the area in which they were to operate.

7. The suspect was then taken to Homantin Police Station where he was formally charged with the offences for which he had been arrested. In their police note books, witness statements and other relevant documentation the applicants recorded the same time, place and reason for the arrest of the suspect as they had done initially from the police post at Hung Hom Station.

8. The suspect denied that he had been at Hung Hom Railway Station prior to his arrest at Lo Wu Station. He also denied the alleged offences and possession of the paper cutter. He was to have been the principal witness for the Crown if the applicants had not pleaded guilty.

9. The first applicant was 29 years of age when sentenced. He had served for 5 years in the Force with a good record. The second applicant was 27 years of age when sentenced. He had served for 7 years in the Force and had at the material time been about to go before the Promotion Board to be considered for promotion to sergeant. Both applicants who hitherto were regarded as exemplary officers have been dismissed from the Force subsequent to their conviction, with all that such dismissal entails.

10. The sentencing judge rightly regarded this offence by two police officers as a serious matter although he accepted, as counsel for the applicants had urged in mitigation, that they had told lies about the place of arrest to cover up their breach of their operation instructions. The judge emphasised, rightly, that if police officers fabricate important parts of their reports the whole system breaks down and the Force is brought into disrepute and distrust. He also rightly expressed the view that attempts to pervert the course of public justice are more serious if initiated by police officers.

11. Having decided to impose a custodial sentence the judge's starting point was 21-24 months "taking into account clear records and the other matters raised". He then gave credit for the applicants' pleas of guilty and remorse and their ruined careers and imposed sentences of 15 months imprisonment on them.

12. In our view this sentence was too high and out of proportion to the circumstances of the offence. In arriving at a starting point of 21-24 months the judge seems to us to have failed to have sufficient regard to the fact, emphasised by their counsel below and on appeal, that the Crown had accepted that the applicants did not make a false arrest in this case, and that these over zealous officers had actually tailed the person arrested because they genuinely suspected him of being a pickpocket.

13. We apprehend that the prosecution of the suspect must have been dropped once it was realised that the credit of the arresting officers had been broken. However the case for the Crown against the applicants was never that they had fabricated a case against an innocent man or against a man they knew or believed to be innocent. In our view this aspect of the case reduces substantially its seriousness.

14. We consider that the public interest and the ends of justice would be adequately served in the special circumstances of this case by granting leave, treating this hearing as the hearing of the appeal, and reducing the sentences imposed upon both the applicants to such terms as will, after appropriate remission (if any) permit their release today.

15. We emphasise that we have taken this course because of the special circumstances of this case and we do not intend it to be thought that the offences of perverting the course of public justice committed by police officers are not normally to be treated as meriting substantial sentences commensurate with the gravity of their circumstances.