THE QUEEN v. LAM HON-KWAN AND ANOTHER

Headnote

            Principles to be applied in sentencing on charges of perverting the course of justice.

IN THE COURT OF APPEAL

BETWEEN

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JUDGMENT

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Banker, J.A.:

1. In these applications the first defendant, LAM-Hon-kwan, and the third defendant, MOK Man-wai, seek leave to appeal against a sentence of 3 years' imprisonment which was passed upon each of them on a charge of conspiracy to pervert the course of public justice.

2. The facts of the matter were relatively short. The allegation which was found to be true by the trial judge was that Dl and D3, and another accused who has not appealed, attempted to obtain money from a man who had been charged with robbery by the police. The second defendant that is the one who has not appealed, promised that in return for a sum of money he would either not give evidence against the robber or, if he did, he would give false testimony, thereby, assisting the escape from justice of the robber. The judge, in hit reasons for sentence, said, rightly we think, "Conspiracies of this sort are prevalent". It has been the experience of this Court, not only in this Division but in other Divisions, that these kinds of cases are on the increase and we agree entirely with what the trial judge said that offences of this nature strike at the very root of the administration of justice and therefore this Court must do all it can, and indeed trial judges must do all they can, to deter others from committing such offences.

3. Mr. Plowman, who has argued this case with considerable ability on behalf of both applicants, has taken us through a number of authorities and it is unnecessary in the course of this judgment for me to go through them. It seems to us that various principles can be gleaned from those authorities.

4. 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. For example, where the person who perverts the course of justice is a senior police officer of mature years, who is prepared to expend considerable sums of money to bribe in order that false testimony may be given, then a very substantial term of imprisonment should be expected. In one case to which we were referred, YEUNG Kwok-fai⁽¹⁾ , a sentence of 4½ years' imprisonment was passed on a Senior Inspector of C.A.P,O. and in that case there had been bribery to the extent of $30,000 and falsifying of witness's statements. That 4½ years sentence was not one day too long and indeed in the present climate it would be expected that an even higher sentence would be imposed. Similarly, where there are threats or intimidation what. Mr. Plowman in the course of argument described as aggravating factors, a long sentence can be expected. But of course other factors which must be taken into account are the ages of the persons involved in the conspiracy and the seriousness of the particular facts of the case, bearing in mind as I have said earlier, that every case of this nature is serious.

5. In the present case, the first applicant is 18 years of age. He pleaded guilty, for which he must be given credit. But as the judge found and in the view of this Court, rightly found, he was the initiator of this conspiracy. The third defendant pleaded not guilty to the offence but he played a somewhat, lesser role in the conspiracy. He is, however, older than the first defendant - he in fact 22 years old today. Each of the appellants has a criminal record which includes offences for dishonesty. Bearing in mind those factors, we think that the learned judge was right in giving both the first and the third defendant the same term of imprisonment. But after anxious consideration, we are bound to say that having regard to the particular facts of this case, a case where there was no threat, no assault or threat of assault, where it was a bare attempt to persuade the witness not to give evidence with a fairly meagre bribe, we do think that 3 years' imprisonment is too long. We shall therefore allow the applications for leave to appeal against sentence. We shall treat the hearing of the applications as the hearing of the appeal. We shall allow the appeals in each case and we shall substitute a sentence in each case of 18 months' imprisonment.

(1) Cr. App. 784 of 1980