ATTORNEY GENERAL v. CHAN SIU WAI

Application for Review No. 11 of 1996

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H E A D N O T E

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Criminal law - sentencing - attempting to pervert the course of justice - police officers in a category by themselves - authorities considered - sentence other than immediate imprisonment only justified in abnormal and exceptional circumstances - immediate sentence of 15 months imprisonment substituted for suspended sentence of 18 months imprisonment.

IN THE COURT OF APPEAL

1996, No. 11
(Application for Review)

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J U D G M E N T

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Nazareth V-P:

1. This is an application by the Attorney General under s.81A of the Criminal Procedure Ordinance for the review of the sentence of 18 months imprisonment suspended for two years imposed by His Honour Judge Bailey in the District Court upon the respondent Chan Siu-wai. The sentence was in respect of the offence of doing an act tending and intended to pervert the course of public justice contrary to common law. At the time of the offence the respondent was a constable in the Royal Hong Kong Police Force attached to Police Tactical Unit 'A' Company. On the 9th February 1996 together with two other constables, Wong Chi-keung (D1) and Mok Chung-yuen (D2) he forced one Chan Ka-leung to steal a bottle of shower cream from a 7-11 convenience store in Nathan Road, Mongkok, Kowloon, and then arrested him and forced him to admit to having stolen the bottle of shower cream.

2. The facts are these. The police officers met their victim, a petty criminal with a history of dangerous drugs and dishonesty offences in Portland Street, Mongkok. They took him to a staircase landing where he was given a choice of being prosecuted for possession of equipment with intent to tamper with vehicles or committing a shop theft for which he would be prosecuted. The victim fearing that he had no alternative, agreed to steal something from a shop. He failed to manage to do that at the first two shops to which he was directed to go by the defendants. Finally, at a third shop he took away a bottle of shower cream without paying for it. He was then arrested and required to sign a cautioned statement admitting the theft. The statement was compiled by the respondent, who was the 3rd defendant, on the finding of the judge, with the advice of D2.

3. In his reasons both for verdict and for sentence, the judge commented that the offence defied common sense. Each of the defendants had thrown away their careers and future prospects in seeking to frame a man for a theft involving $28 worth of property. He observed that D1 and D2, both aged 27 years and having about 9 years service, would lose substantial accrued pension entitlements besides bringing shame upon themselves and their families, and causing substantial damage to the reputation of the police force. As for the respondent, he was only 21 years of age at the time of the offence and had been in the police force for only about 15 months. The judge took a serious view of the offence having regard to the trust reposed in police officers and the oath they have to take.

4. He took as his starting point a sentence of 2 1/2 years imprisonment. Taking into account the previous good service of D1 and D2, their clear records, loss of accrued pension entitlements, that their lives effectively lay in ruins and that imprisonment would weigh heavily on each as a former police officer, he sentenced each to 2 years imprisonment.

5. He then turned to consider the sentence he should impose on respondent. He said this:

"In the case of the 3rd defendant, I have considered whether he should be treated on a different basis from his co-defendants. At the time of the offence the 3rd defendant was 21, having been with the police for just 15 months. Much of this period would have been spent in training. In his case, having regard to his relative inexperience as a police officer and his clear record, an appropriate sentence for the 3rd defendant is 18 months' imprisonment. I have given anxious consideration as to whether the sentence might be suspended in the case of the 3rd defendant. Having had the opportunity to see the 3rd defendant give evidence, along with his co-defendants, I am in no doubt that he acted under the influence of D1 and D2.

At trial, evidence was given of Mr CHAN's failure to identify the 3rd defendant as one of the officers who sought to frame him. Mr CHENG, for the 3rd defendant, has suggested that this was deliberate, given that Mr CHAN was in the company of D3 for a far longer period than D1 or D2, each of whom he did identify.

Mr CHENG speculates that Mr CHAN's failure to identify the 3rd defendant stems from a reluctance to blame D3, who he recognised as having little alternative but to go along with the more experienced D1 and D2. I was inclined to dismiss this ingenious submission out of hand, but having observed all three defendants over the six day trial, I consider that Mr CHENG's speculation may not be far from the truth.

I am satisfied that D3 went along with his co-defendants wicked scheme out of a mixture of misguided loyalty and inexperience. His career as a police officer is over, but I do consider that he should be given a chance. I am confident that he will not re-offend.

I sentence the 3rd defendant to 18 months' imprisonment, suspended for a period of 2 years."

6. Returning then to this application, in support of it Mr Bruce QC, who appears with Mr Tam for the Attorney General, submits that the sentence imposed on the respondent is manifestly inadequate and/or wrong in principle in that the judge should have treated the respondent in the same manner as the other two defendants. In his oral and written submissions, he emphasises that the respondent was at the time of the offence a serving police officer. Moreover, he contends that the respondent was at least equally involved in the conduct of which all three were convicted and, possibly, more culpable in that it was he who took the false statement under caution from the respondent. That Mr Bruce submits was the critical act tending and intended to pervert the course of public justice.

7. Mr Bruce goes on to submit that the judge was wrong in fact to infer that the respondent went along with the scheme "out of a mixture of misguided loyalty and inexperience". It has to be said that it is difficult to see upon what evidence the judge could have made that inference. However, the judge also found that the respondent acted under the influence of the other two defendants and that it is a matter that may weigh in the length of sentence, a matter to which we will come.

8. Reverting to Mr Bruce's submissions, as he contends, current sentencing authority clearly requires that police officers involved in an act which tends to pervert the course of public justice should be sentenced to an immediate custodial sentence. Of the several authorities that were referred to in this regard, it is convenient to begin with R v Luk Ming-hong [1963] HKLR 382 in which Blair-Kerr J upheld a sentence imposed upon a police officer recognising it as severe, as a deterrent sentence, and as much more than an ordinary citizen could possibly have received for the offence in question. He added that:

"But the magistrate was quite correct in taking a broader view of the matter and taking into consideration the whole of the circumstances. In Hong Kong police officers have wide powers of arrest, and the courts cannot view lightly any abuse of authority. If the behaviour of this sort were not punished severely the public would lose confidence in the integrity of our police officers."

9. To turn to another helpful authority, in Attorney General v Poon Ping-kwok and another [1992]2 HKCLR 231, Sir Derek Cons referred to the following dictum from Attorney General v Yeung Sau-shing, AR 21 of 1980, unreported:

"It is not in dispute that attempting to pervert the course of justice is always a serious offence, although that being said, the actual gravity in any given situation will depend upon the circumstances, which may vary very widely from case to another."

He went on to say this:

"That is so even where the acts done are of a similar kind, as is shown by the cases drawn to our attention in this application. Four and a half years' imprisonment was held appropriate in Yeung Kwok-fai and Another v R, CrApp No. 784 of 1980 unreported ... and 12 months in Yeung Sau-shing."

He continued a little later:

"But in this, as in all offences of this nature, police officers are, as this Court observed in Yeung Sau-shing, 'in a category by themselves'."

He went on to refer to the following passage from R v Wong Kim-lun and Another CrApp No. 142 of 1989:

"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."

10. It is not surprising having regard to the observations of Sir Derek Cons and the wide range of the circumstances of such offences, that there are no sentencing guidelines for them. But clearly on the part of the police officers the offence is much more serious.

11. In Attorney General v Yeung Sau-shing, to which reference has been made, the court, Cons JA (as he then was), O'Connor J and Liu J (as he then was), were unable to agree on what would have been a proper sentence at first instance. The lowest view was one of 12 months imprisonment, although the majority would have put it higher. In R v Tong Wai-yu CrApp No. 79 of 1985 unreported, the court upheld a sentence of 2½ years for blackmail and perverting the course of justice. In Yeung Kwok-fai's case, mention was made of a sentence of 4½ years imprisonment at the upper end. It can be seen therefore that there a wide range of sentences have been imposed by the courts depending on the circumstances.

12. We turn then to the matter of suspension of sentence by the judge. In R v Lam Hon-kwan CrApp 525 of 1984 this Court, having reviewed a number of authorities said this:

"Save in exceptional circumstances an immediate custodial sentence is called for and should be imposed."

We pause to observe here that the court in this case also referred to Yeung Kwok-fai, commenting that the 4½ years sentence there "was not one day too long" and indeed that in the climate of the day an even higher sentence would be expected. It is of coincidental interest that the 2nd applicant in Lam Hon-kwan was 22 years old, not a police officer and the offence there was of a far more serious nature. Nonetheless the court reduced the sentence of 3 years imprisonment to one of 18 months. That said, we reiterate what this Court has often said before, that sentences upon the facts of other cases (as opposed to established principles) afford very limited guidance.

13. Finally, we mention Attorney General v Yeung Kwong-chi [1989]1 HKLR 266 in which the defendant was not a police officer but merely a security guard in a commercial and residential complex who agreed to give false evidence to frame an innocent man. Cons V-P said this at p. 269B:

"The normal sentence ... is one of immediate custodial imprisonment. It is necessary not only to punish and deter such wicked behaviour, but to mark the absolute repugnance with which the public views such deliberate abuse of the criminal process. It follows that in order to justify any other sentence abnormal circumstances must be present.

A clear record, good family behaviour, the probability that the offence was a single fall from grace and that the defendant will in future lead a blameless life are all proper matters for consideration with respect to sentence ... They are factors too, which might justify the suspension of a sentence of imprisonment for some much lesser offence. But they are by no means abnormal when put in the context of a crime of this nature."

14. While not all of the defendants in the above cases were police officers, the relevant principles are clear. Perverting the course of justice is always a serious offence. The normal sentence for such an offence is one of immediate imprisonment a fortiori in the case of police officers, where the offence is much more serious and police officers to be regarded as a category by themselves. A sentence other than immediate imprisonment would only be justified in abnormal and exceptional circumstances. Mitigating circumstances like a clear record might justify suspension of a sentence of imprisonment in some much lesser offence, but they are by no means abnormal.

15. There were no abnormal or exceptional circumstances here. Misguided loyalty and inexperience cannot be good reason for suspending a custodial sentence particularly in this case. Nor do we see that the influence of the other two defendants, upon which Mr Mak for the respondent has particularly relied, is either an abnormal circumstance or is good reason to justify the suspension of the custodial sentence that was clearly called for. The judge clearly erred in principle in suspending the sentence of imprisonment. The result is moreover a sentence that is manifestly inadequate. It must be set aside and an immediate custodial sentence substituted.

16. The sentence of 18 months assessed by the judge i.e. 6 months less than the 2-year sentences imposed upon the other two defendants, represented a discount of 25% which, we think, is over generous having regard to the factors taken into account by the judge. Moreover the 2-year sentences themselves may be thought not to fully reflect the seriousness of the offence, although we do not think that it is appropriate for us to take a higher starting point. On the other hand, as was pointed out in Attorney General v Wong Kwok-wai [1991]2 HKLR 384, 389, the position with respect to discount upon review of sentence is that where an accused is serving a prison sentence, this Court should, generally, impose the sentence it thinks the trial judge should have imposed and without a discount. A discount can, however, be properly considered in cases where the respondent is very close to the end of his sentence or where the sentence imposed by this Court is greatly in excess of the original sentence. Where the respondent has been at liberty since conviction, then a discount will usually be given depending on the particular circumstances. Here the custodial sentence was suspended and is now to be activated; we think that must be regarded as greatly in excess of the original. Likewise, the respondent has been at liberty since his conviction some 7 months ago.

17. Having regard to all these considerations, we think a discount should be given but of a modest nature having regard to the generous discount the respondent has already received. We, therefore, propose that the sentence of 18 months be reduced to 15 months but that the respondent should immediately serve the sentence without suspension.

18. We accordingly grant the application to review and having reviewed the sentence, set it aside and substitute a sentence of immediate imprisonment for 15 months.