HKSAR v. LIU KING CHUK

HCMA1305/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1305 OF 2000

(ON APPEAL FROM ESCC 3457 OF 2000)

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J U D G M E N T

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1. The appellant, Madam Liu King Chuk, pleaded guilty before a magistrate sitting in the Eastern Magistracy to one charge of conspiracy to pervert the course of public justice, contrary to Common Law and sections 159A and 159C of the Crimes Ordinance. The appellant was sentenced to two months' imprisonment. This is her appeal against sentence.

2. The prosecution's case is contained in the Summary of Facts to which the appellant confirmed before the learned magistrate. In brief, the appellant had conspired with one Madam Leung to pervert the course of public justice by agreeing with one Madam Leung to prevent the appellant from being prosecuted for an offence of causing obstruction in a public place whereby Madam Leung would put herself forward as the person causing the obstruction. The conspiracy was alleged to have taken place between November 1997 and February 1999 when at the material time, the appellant operated a fruit and vegetable stall at the junction of Tang Lung Street and Canal Road East in Causeway Bay, Hong Kong.

3. On a number of occasions during the conspiracy period, the appellant was arrested by the officers of the Hawker Control Team of the Wan Chai District for causing obstruction in a public place. As the appellant was busy attending her business, she arranged with Madam Leung, a lady of advance age, so that she would substitute for the appellant as the arrested person. Madam Leung was not under the employment by the appellant. It would be useful to note at this stage that the Hawker Control Team officers were fully aware of the arrangement between the appellant and Madam Leung but nevertheless arrested and charged the latter for the offence. Once arrested, Madam Leung would then be brought back to the police station where she would be given bail. Bail money would be put up by the appellant. At the subsequent court appearance, Madam Leung would plead guilty to the charge and any fine imposed by the court was to be paid for by the appellant. For her troubles, the appellant would offer Madam Leung some food.

4. Mr Dinan, counsel for the appellant, advanced two grounds of appeal. The first is that the learned magistrate erred in failing to give sufficient weight to the mitigating factors present in the case, and secondly, that he had overemphasized the seriousness of the offence.

5. The appellant is a woman of 57 years of age and apart from a dissimilar conviction back in 1973 for which she was fined $50, she had no other criminal conviction. She pleaded guilty at the first available opportunity and she had cooperated throughout with the authorities when the matter was investigated by the ICAC. The appellant was arrested for the present offence in September 1999 and it was not until almost a year later that she was charged. It was submitted before this court, as well as in the court below, that the appellant did not stand to gain from her illegal activities.

6. The background probation report, which the learned magistrate ordered, was favourable. The appellant was described in the report as a hardworking and responsible woman who was also a devoted mother of six children. The probation officer concluded by observing that the appellant would be extremely unlikely to commit offences in the future. The court is given to understand, at this appeal, that she had already closed down her stall in Causeway Bay. She intends to join her husband in Canada and dedicates her time in looking after her grandchildren and her husband who has been diagnosed with prostate cancer. As is apparent from the letters placed before this court, the appellant is highly regarded by members of the Wan Chai District Council and is described as a charitable person who was always prepared to contribute to those who were in need.

7. In November 2000, the appellant was diagnosed as suffering from moderate obstructive sleep apnoea syndrome which is a form of sleeping disorder. It is not a life threatening condition.

8. Suffice it for me to say that, in his Reasons for Sentence, the learned magistrate had fully taken into consideration the mitigating factors which were presented to the magistrate by the appellant's counsel in the court below. Having considered the facts of the case and the plea in mitigation, the learned magistrate made the following observation at paragraph 5 of his Reasons for Sentence :-

"... The offence which the Defendant had committed was very serious, since it involved public officers not discharging his duties of enforcing the law and only arresting and prosecuting innocent persons who merely acted as 'scapegoat'. The case was indeed very serious. Hong Kong's prosperity and stability mainly depends on a proper legal system and the rule of law. I think that any conduct which perverts the course of justice would weaken the enforcement of law. Justice cannot be done, the result of which would be very serious."

9. It is against the above passage that the second ground of appeal is brought. Counsel for the appellant submitted that the learned magistrate had overemphasised the seriousness of this offence. It is also submitted, while the nature of the charge is very serious, the appellant, however, committed the offence out of ignorance and thoughtlessness. Mr Dinan submitted that this case is to be distinguished from the type of cases where a defendant had attempted to frame an innocent person with a serious crime. The substantive offence involved here is obstruction of public place which attracts only a small fine by way of penalty. Counsel also emphasised that in the course of achieving the illegal objective, the parties had not resorted to bribery, nor was there any false statement given on oath. The parties in this case never resorted to any form of violence or threats in order to achieve their illegal objective. I find that there is some attraction in this line of argument.

10. Mr Lee, Senior Government Counsel for the respondent, argued that the conspiracy, which lasted for some 15 months, meant that the scheme had been used regularly resulting in Madam Leung having been falsely arrested on more than one occasion. Because of its recurrent nature, it was said, the sentence of two months was unduly lenient.

11. Mr Lee also submitted that the facts of the present case are not dissimilar from the facts in HKSAR v. Tse Lin Soong, HCMA995 of 1999 and HKSAR v. Yung Wai Siu, HCMA1051 of 2000. Both cases involved similar charges and the appellants in the two cases were sentenced to six and four months' imprisonment respectively after a plea of guilty. On appeal, the six months prison term in Tse was reduced to three months. The sentence in Yung was not disturbed. Deputy Judge To in Yung observed that the sentence of four months' imprisonment is on the low side in view of the facts of the case. His reasons appeared at page 3 of the judgment :-

"... Any attempt to pervert public justice goes to the heart of the rule of law. Save in very exceptional and trivial circumstances, anyone who commits this type of offence, albeit unwittingly, should expect a custodial sentence. I would have thought conniving with law enforcing officers aggravates an offence rather than alleviates it. To connive with law enforcing officers to deceive the court makes a greater mockery of the court than conspiring with others who have nothing to do with law enforcement."

12. With respect to the learned Deputy Judge, the fact remains that but for the connivance of the officers of the Hawker Control Team, the illegal scheme would not have worked. The officers could and should have insisted on arresting the appellant in proper discharge of their duty. In the eyes of the appellant, the attitude of the officers of the Hawker Control Unit must have been treated as official sanction of the illegal scheme. It would be reasonable to suppose that Hawker Control Units would make frequent visits to market places as part of their daily routine. To avoid disruption of their daily business, the hawkers nominated persons with whom a conviction for obstruction would have little adverse consequence to stand in for themselves. The scheme seemed to have suited every party involved without having to resort to bribery or violence.

13. It is the apparent callousness of the law enforcement officers in knowingly arresting persons whom they knew to be completely innocent rather than the part played by the appellant which I find to be disturbing. As law enforcement officers, they are expected to discharge their duties properly. The facts of this case indicate otherwise. The behaviour of those who arrested Madam Leung, knowing quite well that she was standing-in for the appellant was, in my view, nothing short of being outrageous. Although the appellant is a party to the conspiracy, I can see elements of exploitation of the situation by the officers of the Hawker Control Unit in their eagerness to effect arrests and hence bolstering figures of arrests. In a way, the appellant can be looked upon as victim of the system. I am inclined to take a more lenient view as to the part played by the appellant in this conspiracy.

14. For the reasons given, the appeal against sentence is allowed to the extent that the two month prison term is suspended for 12 months.