THE QUEEN v. MAN KAM CHI

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court):

1. The applicant Man Kam Chi appeared before Judge Caird in the District Court on three charges. The first charge was indecently assaulting a woman, contrary to section 122(1) of the Crimes Ordinance; the second charge was criminal intimidation, contrary to section 24(a) (i) of the Crimes Ordinance and the third charge was doing an act tending and intended to pervert the course of public justice, contrary to Common Law. He pleaded not guilty to all the charges but was convicted of each offence by the judge on the 28th September 1989. He was sentenced to one month's imprisonment on the first charge, four months' imprisonment on the second charge and two years' imprisonment for the attempt to pervert the course of public justice, but the two longer sentences were directed to run concurrently and therefore the total term he was ordered to serve was two years and one month.

2. He applied for leave to appeal against sentence within the time allowed but failed to apply for leave to appeal against his convictions at the same time and did not, in fact, make that application until over six months had passed since his conviction. We heard his application for leave to appeal against the convictions out of time earlier this morning and, finding no grounds to grant the applicant any indulgence, we dismissed that application.

3. The judge found the following facts. The applicant lived in premises in Mongkok. He occupied a cockloft there and was the sub-tenant of a Madam Cheng. He had been her sub-tenant for about seven years. Madam Cheng has two daughters. One of her daughters, Lee Siu Yin, was believed by the judge when she testified that on the 8th of May 1989, in the very early hours of the morning, she was woken up by someone who turned out to be the applicant kissing her on her neck. She was frightened, she said, and screamed out. Her mother came to her assistance. Madam Cheng helped to push the applicant out of the room and an alarm was raised. He was later arrested by the police.

4. The applicant was on bail pending his trial and the judge also accepted the testimony of the younger sister of the recipient of the unwanted kiss who said that on the 12th of June, at about 10.30 at night, the applicant had telephoned her asking to meet her elder sister. When asked what he wanted to see her about he said that it was to try and persuade her not to give evidence against him on the next day, which was to be the first day of the trial.

5. According to the witness, the applicant was not satisfied with her response and said words to the effect "if you cause me to be put in prison, we will chop you into nine pieces". The evidence given by the same girl was that later that day, the applicant came to where they were living and shouted abusively through the closed grill across the front door of the flat. He again asked to see the elder sister and this was refused.  He then said "if you cause me to be in prison, I will burn your house". The girl said that she asked the applicant whether this was a threat and the applicant said that it was. A report was made to the police and the applicant was arrested. No doubt this resulted in his bail being withdrawn.

6. The applicant is aged about 40. He has a family in China: a wife, two daughters and a son. He came to Hong Kong in 1980 as an illegal immigrant but later regularised his position. He works and has been working for the last seven years as a waiter, up to 12 hours a day, and regularly visits China to take money to support his family. He had no previous convictions.

7. The learned judge, in his Reasons for Sentence, observed that the first charge (the indecent assault) could be considered a minor offence of its kind and were it not for the other two offences he would have considered the possibility of making a probation order or imposing a suspended sentence. He said that he recoghised that the second and third offences arose out of the applicant's concern about the, fact that he was facing the first charge and noted that the applicant had lived peacefully with Madam Cheng and her two daughters for some seven years; and indeed had got on well with Madam Cheng all this time. The judge noted, too, that the girl who had been kissed had indicated that she felt sorry for the defendant and might have spoken in his favour at the trial had it not been for the two subsequent offences that had been committed.

8. The judge accepted also that the later offences were due to the applicant's anxiety about his family in China were he to be sent to prison. The judge said that he felt bound to regard the third charge (the attempt to pervert the course of public justice) as particularly serious for it involved threats. He cited the case of R. v. Huthart, Criminal Appeal No. 52 of 1989 (unreported) 12th May 1989, where the Court of Appeal upheld a sentence of 18 months' imprisonment imposed for attempting to pervert the course of public justice after a plea of guilty. He quoted the following passage from the judgment of Barnett J. who delivered the judgment to the Court (on page 11 of the transcript):

                 "Any attempt to prevent the administration of justice taking its due course is an extremely grave matter. In those circumstances, we think an appropriate starting point would have been two years' imprisonment, that is to say, the sentence which would have been imposed if the applicant had pleaded not guilty and been convicted after trial."

9. We entertain no doubt that Barnett J. did not intend to be understood to be suggesting that the sentence for every case of attempting to pervert the course of justice must have a starting point of two years' imprisonment after a plea of not guilty. We think that the true position is as stated by Barker J.A. in another unreported case: R.v. Lam Hon Kwan and another, Criminal Appeal 525 of 1984 (22nd of March, 1985) where he said at page 2 of the transcript:

                 "First, save in exceptional circumstances an immediate custodial sentence is called for and should be imposed; secondly, the length of that custodial sentence must vary in accordance with the circumstances of the case."

10. We have considered the other cases cited to us concerning sentences imposed for this type of offence. Here the applicant had a good record and is a good family man, and what he did was, as Miss van der Eb put it, to use wild words in a moment of panic. No doubt the second and third charges were serious and the applicant rightly received an immediate custodial sentence, but in all the circumstances we think that the sentences imposed by the judge, in their totality, were too severe for this applicant on the facts proved. We think that the justice of the case would be met if we were reduce the sentence on the third charge to one which will permit him to be released immediately (he having been in custody for approximately 11 months already) and we so order.