HKSAR v. NG MAN KAM ROCKMAN

DCCC 540/2022

[2023] HKDC 835

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 540 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant has pleaded guilty to 6 charges of doing acts tending and intended to pervert the course of public justice and 1 charge of perjury and full details of the offences are set out in the facts admitted by the defendant.

2.  In gist, this case concerned the under-statement by the defendant in the matrimonial proceedings regarding his application to vary the court order. During the process, in order to support his application to reduce his monthly payment to his ex-wife for the maintenance of his son, false information and documents were provided to the court.

The gist of the facts are as follows :

3.  In 2009, the defendant became married with his ex-wife.  They have a son but they divorced in 2013.

4.  In 2011, the defendant became an employee of an Estate Agent Company (“the Company”)  and later was promoted to Marketing Manager.  He was entitled to receive from the Company a monthly basic salary, sales commissions for procuring property-related transactions and overriding commissions for property-related transactions procured by his subordinates.

5.  On 28 March 2013, the Family Court granted an order including, amongst others, giving care and control of the son to the defendant’s ex-wife and requiring the defendant to pay HK$5,000 per month to his ex-wife as maintenance for the son.

6.  On 12 April 2016, the Family Court made an order that the care and control of the son be shared between the defendant and his ex-wife.

7.  On 22 August 2017, the Family Court made an order that during the period when the defendant had the care and control of the son, the amount payable by the defendant to his ex-wife for the maintenance of the son was to be reduced to HK$2,500 per month (“the 2017 Order”).

8.  On 23 January 2018, the defendant by way of a notice filed with the Family Court Registry applied to vary the 2017 Order to relieve himself of the requirement of making the HK$2,500 monthly payment to his ex-wife (“the Application”).  One of the grounds of the Application was that he was in a dire financial situation.  In support of the Application, the defendant filed a number of documents which contained false representations as to his financial situation and to which copies of false documentary proof were attached.

Charge 1

9.  On 19 March 2018, the defendant filed with the Family Court Registry his affirmation (“Document 1”).  The defendant falsely asserted in Document 1 that his monthly income was HK$8,000 odd and attached to Document 1 purported copies of Payment Advice of the Company issued to him for December 2017 to February 2018 showing that his income in the period was HK$8,455 per month.

10.  However, the relevant Payment Advices issued by the Company in fact showed that the amounts of the defendant’s income (to the nearest dollar)  in the said three months were $468,535, $346,732 and $56,324 respectively. 

11.  The defendant knowingly understated his income for the said three months in the total amount of $846,226.

Charge 2

12.  On 11 May 2018, the defendant filed with the Family Court Registry his affirmation (“Document 2”).  The defendant falsely asserted in Document 2 that his monthly income at that time was HK$8,000 odd.

13.  However, the defendant’s income received from the Company in April 2018 was in fact HK$275,171.  Therefore, the defendant knowingly understated his income by around HK$267,171.

Charge 3

14.  On 4 June 2018, the defendant filed with the Family Court Registry a Form E Financial Statement affirmed by him (“Document 3”).  The defendant falsely asserted in Document 3 that his average monthly income was HK$8,455 from December 2017 onwards.

15.  He also attached to Document 3 false copies of Consolidated Statement of the Account showing false basic salary and commissions from June 2017 to April 2018.

16.  On the said copies of false Consolidated Statement of the Account attached to Document 3, records of large sums of withdrawals from the account had been erased and false entries had been inserted.

17.  The defendant, by using the copies of false Consolidated Statement of the Account, knowingly understated his total income from June 2017 to April 2018.  The total amount he had understated is HK$1,853,996.20.

Charge 4

18.  On 29 June 2018, the defendant filed with the Family Court Registry a written reply signed by him (“Document 4”).  The defendant falsely asserted in Document 4 that his income at the time was HK$8,000 odd and that he was not entitled to receive any overriding commission.

19.  However, the defendant’s income received from the Company in May 2018 was in fact HK$768,295.60.  Therefore, the defendant knowingly understated his income by around HK$760,295.60.  Further, in fact the defendant had been entitled to receive overriding commissions since his promotion in 2012, and the commissions received by the defendant from the Company from June 2017 to May 2018 were entirely overriding commissions.

Charge 5

20.  On 3 July 2018, the defendant filed with the Family Court Registry a written reply signed by him (“Document 5”).  The defendant falsely asserted in Document 5 that his monthly income from October 2017 onwards was only HK$8,000 odd.

21.  He attached to Document 5 false copies of Payment Advice of the Company issued to him for June to November 2017 and for March to May 2018.  The defendant knowingly understated the amounts of his income by $1,746,956 in total.

22.  The defendant also falsely asserted in Document 5 that he had borrowed a total sum of HK$12,000 from friends as recorded as deposits in the purported copies of Consolidated Statement of the Account attached to Document 3.  However, in fact the Bank did not have any record of the said deposits.

Charge 6

23.  On 18 October 2018, the defendant filed with the Family Court Registry a written reply signed by him (“Document 6”).  The defendant falsely asserted in Document 6 that he had changed to a part-time role at the Company since 2014.

24.  He repeated the false assertions that his HK$12,000 loan from friends and his income were reflected on the purported copies of Payment Advice and Consolidated Statement of the Account and that he was not entitled to receive any overriding commission.

25.  He attached to Document 6 false copies of Consolidated Statement of the Account for June 2017 to May 2018 and false copies of Payment Advice of the Company issued to him for June 2017 to May 2018.

26.  However, the defendant in fact had always been a full-time real estate agent during his employment with the Company and he had been entitled to receive overriding commissions from the Company since 2012.  The Bank in fact did not have any record of the deposits which the defendant asserted to constitute the loan from friends.

27.  The defendant, by using the copies of false Payment Advice and false Consolidated Statement of the Account, knowingly understated his total income by $2,593,180.80 in total.

28.  In addition, on the said copies of false Consolidated Statement of the Account attached to Document 6, records of large sums of withdrawals from the Account (of various amounts between HK$10,000 and HK$450,000)  had been erased.

The Hearing

29.  On 21 February 2019, a hearing of the Application was held in the Family Court before HH Judge Own.  When testifying under oath as a witness, the defendant falsely asserted that the documents he had previously filed in support of the Application were genuine.

30.  The defendant knew, from the respective moments of his filing of Documents 1 to 6, that his conduct would mislead the Family Court as to his financial situation in its determination of the Application and therefore had the tendency towards impairing the capacity of the Family Court to do justice.

Charge 7

31.  When testifying under oath as a witness during the said hearing, the defendant falsely asserted that he had been working part-time in the Company and earning a monthly income of HK$8,445 from October 2018 to January 2019.  He further falsely asserted that his income received from the Company for the year immediately before February 2019 remained to be HK$8,445 per month.  The assertions were material to the Family Court’s determination of the Application and the defendant knew that they were false.

32.  The amounts of his monthly income received from the Company from February 2018 to January 2019 were in fact in the range between HK$26,207 and HK$768,295.60.  His total income for the period was HK$2,363,661.80.  Therefore, he knowingly understated his total income by HK$2,262,321.80.

Granting of the Application

33.  On 13 March 2020, having considered the representations of the defendant, HH Judge Own granted the Application by relieving the defendant of the requirement to make the monthly payment of HK$2,500 to his ex-wife for the maintenance of the son during the period when the defendant had the care and control of the son.

Criminal record and background of the defendant

34.  Mr Ching Y.  Wong SC adopted his written submission as part of the mitigation.  He informed the Court that the defendant is the sole bread winner for his family.

35.  He has suffered from Vein Thrombosis (since 2011), Eczema (since 2007)  and Sleep Apnea Syndrome (since 2020).  Despite his medical condition, he still works hard to support his family.

36.  He has 4 criminal records with no similar offence.  Mr Wong submitted that those convictions were not of any serious offence and are from a long time ago when the defendant was young; and may be regarded as being spent. 

37.  I was told by Mr Wong that the defendant’s mother is aged 68 and divorced.  She suffers from dementia and from schizophrenia.  She has been receiving psychiatric out-patient treatment at Shatin Prince of Wales Hospital for the past 7 years.

38.  She also suffers from dizziness and is also receiving treatment for hypertension, diabetes and high cholesterol.  The defendant spends about HK$8,000 per month, out of which HK$5,000 to employ a domestic helper to care for his mother and maternal grandmother, HK$2,000 on medicines and supplements and HK$1,000 for the day care centre for his mother since 2020.

39.  The defendant’s maternal grandfather is now aged 100 and needs a medical ventilator.  The monthly expenses are HK$288 for renting the machine, HK$300 for adult dippers, HK$1,500 for medicine making a total of HK$2,088.  He suffers from deranged liver function, shortage of breath and Dysphagia with poor oral intake.

40.  The defendant’s wife is aged 39 and is a housewife.  The defendant pays her HK$20,000 for monthly household use.

41.  His mother-in-law is aged 67 and works as a cook in a food court.   She has heart problem and will undertake angioplasty later this year after she has retired.  The cost of the operation will be about HK$60,000.

42.  His father-in-law is aged 65 and retired.  The defendant gives him through his wife HK$2,500 each month.

43.  The defendant’s son is now aged 14.  The defendant spends about HK$8,500 per month on him on private tutoring and interest classes.  This was regardless of whether his son was with his ex-wife or himself.  During the weekends when the defendant was with his son, he would spend at least HK$500 on his son for leisure, toys and food (totaling HK$2,000 per month).  In total, the defendant would spend about HK$10,500 on his son per month.

44.  Further, a “Dream account - with kid” at Standard Chartered Bank was opened on 7 June 2023 by his present wife together with his son.  The sum of HK$300,000 was paid by the defendant into this account for education of his son.

Mitigation

45.  Mr Wong submitted that there is no tariff set down for either ‘perverting’ or ‘perjury’.  He further submitted that was because both these offences may vary a great deal in seriousness.  Whether it is serious very much depends upon the facts of the case in question.

46.  Mr Wong referred this Court to the following cases, namely:

- YUEN Man-chiu v R CACC 399/1980

- R v CHAN Mung-lung [1992] HKCLR 127

- LUI Shu-tong v R [1961] HKLR 129

- SJ v LI Cheuk-ming CAAR 2/1998

47.  Mr Wong submitted that for the offence of ‘perverting’ and ‘perjury’, the effect of it is relevant for consideration regarding penalty.  Mr Wong suggested that the effect of the defendant’s acts of ‘perverting’ and ‘perjury’ was merely to reduce the amount payable for the maintenance of his son, and that this effect must be at the lowest end of the scale for sentencing purposes.

48.  It is also submitted that all seven charges concern the case of the proceedings in the Family Court.  Thus the charges are of a series of acts which concerned nothing else but the amount of maintenance to be paid by the defendant.

49.  Mr Wong stressed that this is the most favourable scenario to the defendant and is the factual basis upon which penalty is to be considered.  Mr Wong stated that the amount of reduction in payment of HK$2,500 per month comes to no more than the total of $65,000.  Further, since it was a series of acts concerning the same subject matter, the penalty to be imposed on these charges ought to be concurrent.

50.  Mr Wong also asked this court to consider the following matters as mitigation for the defendant.  Mr Wong stated that the defendant is a caring person and has regularly donated to various charities.

51.  Apart from monetary contribution and donation, he has in fact participated and organized various charitable activities in the capacity of Vice Chairman of Hong Kong Island District Venue Scout Council (2020-2023)  and President of HK Lions Club International, Repulse Bay (2022-2023).

52.  Mr Wong submitted that the only reason why the defendant had understated his income was to reduce the amount of maintenance payable each month as such money was used by his ex-wife on herself rather than on his son. He submitted no case on either offence with facts which are the same or similar to the facts herein has been found.

53.  Mr Wong suggested that given the above mitigating factors and there being no aggravating factors, he asked this Court to give the defendant a chance and not to impose immediate custodial sentence to the defendant.  Instead, Mr Wong suggested Community Service Order (CSO)  is the appropriate and suitable alternative to immediate imprisonment.

54.  Mr Wong reiterated that the defendant is very remorseful as demonstrated by his plea of ‘Guilty’ to all seven charges, and that CSO is an available sentencing option even for serious offences if there are exceptional circumstances.

55.  Mr Wong submitted that although the defendant does not have a clear record, he has turned over a new leaf and has worked hard to achieve his present position as Chief Associate Director in the Company.

56.  Mr Wong stated that if the defendant were imprisoned, that would have the devastating effect of the defendant having no income and thus not being able to support his family members.

Sentencing considerations

57.  In sentencing the defendant, I have carefully considered the facts admitted by the defendant, all that has been put forward in mitigation by Mr Wong on behalf of the defendant, as well as the contents of the mitigation letters seeking leniency and cases that Mr Wong had referred the court to.

58.  There is no sentencing tariff for the offence of perverting the course of public justice as circumstances of its commission and thus its criminality vary from case to case: HKSAR v Chu Ka Shing CACC 104/2001.

59.  Likewise, there is also no guideline sentence for perjury because the circumstances in which perjury can be committed are manifold, they relate to many different kinds of proceedings and many different forms of lies can be told. 

60.  Cons JA (as he then was)  had said in Attorney General v  Yeung Sau Shing (AR 21/80), namely that the crime of attempting to pervert the course of justice:-

“…. is a crime which is essentially against the public interest as a whole. It strikes at the very heart of the system by which law and order is enforced in society. If it were to succeed to any appreciable extent it would completely destroy public confidence in that system. Strong measures are needed to preserve that confidence and consequently, the personal circumstances of an individual defendant carry less weight in this case than they would in relation to some other crimes.”

61.  In A-G v.  Yeung Kwong-chi [1989] 1 HKLR 266, (Per Cons VP)  the Court of Appeal held that the normal sentence for an attempt to pervert the course of public justice was one of immediate imprisonment and this was to be the sentence unless there were 'abnormal' circumstances.  The Court observed that such sentences were 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.”

62.  In R v Tunney (Reynolds)  [2007] 1 Cr App R 91, the Court of Appeal in England set out the relevant factors in sentencing pervert of justice at page 568:-

“In our judgment, the sentence which is appropriate for offences of this nature depends effectively on three matters. The particular factors which the court must have regard to are, first, the seriousness of the substantive offence to which the perverting of the course of justice relates. The second matter is the degree of persistence in the conduct in question by the offender; and thirdly, one must consider the effect of the attempt to pervert the course of justice on the course of justice itself.”

63.  As far as the approach the court must take following a conviction for perjury, I refer to an English case of Crown v Davies back in 1974 recorded at 59 Cr App R 311, Roskill LJ said:-

“Perjury is not always easy to prove. Perjuries are not easily brought to justice and when they are they must be punished.”

64.  There is support in Hong Kong for that position that upon a conviction of perjury the normal sentence would be one of an immediate sentence of imprisonment.

65.  The English Courts go into a bit more detail in Crown v Archer [2003] Cr App R 446 involving the famed author and that involved perjury in a civil claim and that is relevant because the perjury in this case was not in a criminal prosecution when perjury is normally found.  Of course, there is no inherent difference in seriousness between perjury in civil as against or opposed to criminal proceedings.  Other factors were more relevant.  They listed a number of factors such as the timescale over which the perjury took place; the number of offences that were committed as a result of the falsehoods; were the lies planned and persisted in; had other people been implicated and had the perjury affected the outcome of the proceedings. 

66.  As to the reasons why the defendant committed the present offences, Mr Wong informed the court that the defendant acted in person in the matrimonial proceedings in question and was ignorant that what he did was to commit two types of offences which on the face of them are serious offences.

67.  Mr Wong stressed that the defendant’s sole purpose was to reduce the amount to be paid to his ex-wife for the maintenance of his son (as opposed to payments for maintenance of his ex-wife).  This was because in or about 2012 during the matrimonial proceedings, he found out that the maintenance he paid for his son was in fact used by his ex-wife for her own purposes.

68.  He discovered this from the receipts and credit cards statements filed by his ex-wife to court to show how the maintenance for his son was used.  The said receipts and credit card statements filed showed that his ex-wife had used the maintenance money to buy cosmetics items, two I-phones, a massage chair and a camera instead of using it on his son.  His ex-wife did not even buy uniform for his son.  He wore second-hand uniform which his ex-wife obtained free-of-charge from the school.

69.  The defendant loves his son and would willingly spend money on him.  His intention of reducing the amount of maintenance was simply to give less money to his ex-wife to spend on herself.  He loves his son and there is no reason whatsoever why he would not pay sufficient maintenance for his up-keep if the maintenance was spent on him.

70.  Mr Wong also told the court other reasons provided by the defendant as to why he committed the offences and I am not going to repeat them in details.

71.  In essence, what Mr Wong told the court is all about allegations made by the defendant against his ex-wife and his ex-wife’s boyfriend.  These allegations are serious and are related to a number of events involving the defendant’s son.  These events mentioned by Mr Wong took place in 2013 and 2014.

72.  Because of all the above, the defendant took the misguided view that since the maintenance paid for his son was not being used on his son and his son was not being looked after properly, he will not pay so much maintenance.  Hence the offences were committed.

73.  The background of this case related to the matrimonial proceedings.  I was told the defendant acted in person in those proceedings.  The Family Court deals with the civil aspects of family law.  Unrepresented parties are a common phenomenon these days in the Family Court.  The Family Court judges usually take pro-active steps, especially when the parties are unrepresented, in the investigation for the welfare of the children and also facilitate the settlement of disputes involving money and children matter.

74.  With my past experience in the Family Court, I believe that all those issues raised by the defendant through his counsel to this court explaining why he committed the present offences would be handled and dealt with by the Family Court Judges if the defendant had raised those issues at the Family Court before.

75.  In fact, on 28 March 2013, the Family Court granted an order including, amongst others, giving care and control of the son to the defendant’s ex-wife and requiring the defendant to pay HK$5,000 per month to his ex-wife as maintenance for the son.

76.  On 12 April 2016, the Family Court made an order that the care and control of the son be shared between the defendant and his ex-wife.

77.  On 22 August 2017, the Family Court made an order that during the period when the defendant had the care and control of the son, the amount payable by the defendant to his ex-wife for the maintenance of the son was to be reduced to HK$2,500 per month ie the 2017 Order. 

78.  5 months after the granting of the 2017 Order, the defendant filed an application with the Family Court Registry to vary the 2017 Order to relieve himself of the requirement of making the HK$2,500 monthly payment to his ex-wife.

79.  Mr Wong suggested that the effect of the defendant’s acts of ‘perverting’ and ‘perjury’ was merely to reduce the amount payable for the maintenance of his son, and that this effect must be at the lowest end of the scale for sentencing purposes to which I do not agree.

80.  In my view, the defendant was not satisfied with the 2017 Order and did not wish to comply with the said Order.  The defendant then took out application to vary the 2017 Order.  By taking out the application, he knew he needed to file various documents in due course to support his application.

81.  The Application was taken out on 23 January 2018 and the hearing for the Application was on 21 February 2019.  During this period, various documents were filed by the defendant such as affirmation, Form E and Reply.  These documents should not be unfamiliar to the defendant which required him to provide true and accurate information.  On the contrary, false information and false copies of documents were deliberately included and attached.

82.  During the trial, the defendant reiterated his false story to the trial judge.  Eventually, a very experienced Family Court Judge was deceived and it caused the court to fail to do justice (ie dismissed the Application)  and also doing an injustice to the ex-wife (ie varied the 2017 Order).

83.  It can be said in this case that the falsehood is well planned, pre-mediated and persisted in the conduct throughout the whole process.  A lot of false information together with false copies of documents were provided to deceive the court and also the ex-wife.

84.  The seriousness of the substantive offence to which the perverting of the course of justice relates was not merely to reduce the amount payable for the maintenance of the defendant’s son as suggested by Mr Wong.

85.  The crux of the seriousness was the defendant intended not to comply with the 2017 Order and in order to do so, he took an active step to take out application to vary the said Order and went through the hearing.

86.  The present scenario has to be considered as involving facts of high criminality and not easy to detect and the fact that it was a deliberate deception from the very beginning and persisted in the conduct all the way up till the end warranted a custodial sentence. 

87.  In fact, it is not uncommon that the Family Judges have to deal with a substantial number of litigants every day which only involved a few thousand dollars of monthly maintenance.  If these litigants used false information and false documents, it will put the Family Judges in a very difficult position when administering justice.  The defendant had set a very bad example which should be deterred.

88.  Therefore, I do not accept counsel’s submission that the wrongdoing of the defendant was at the lowest end of the scale for sentencing purpose.

89.  Such acts are reprehensible and cannot be tolerated in a civil society. The defendant’s conduct would impede the court’s duty and impair the capacity of a court to do justice.  I agree that though there were 7 offences, this was in fact one course of conduct.

90.  With the greatest of respect to Mr Wong, his submission that Community Service Order should be appropriate is, in my opinion, totally misplaced and not commensurate with the seriousness of the offence and the circumstances of the case.

91.  To impose a Community Service Order would fall far short of the gross criminality in this case which is separately and together extremely serious example of perverting the course of public justice and perjury.

92.  This court must impose a heavy sentence for the offences committed by the defendant so as to preserve the public confidence in our system of administration of justice and openly condemn the offender, as well as to deter the offenders and others who intend to commit the crime from doing so; otherwise the administration of justice will be under serious threat.

93.  In assessing the seriousness of the offences, relevant factors including the seriousness of the underlying offences, the nature of the conduct, the period of time over which the conduct continued and the effect of the conduct on the course of justice itself have already been taken into account.

94.  I accepted that it was a series of acts concerning the same subject matter, the penalty to be imposed on these charges ought to be concurrent and a global starting point would be appropriate to reflect the overall culpability of the defendant.

95.  Having considered the totality principle, I will adopt a starting point of 30 months as a global starting point for each charge.  With the guilty plea, the sentence is reduced to 20 months’ imprisonment for each charge and to run concurrently with one another.

96.  The defendant clearly is a man who is hurt deeply by the stance that he has taken.  The defence has put forward what I describe as compelling personal circumstances but they do not, in my consideration, amount to the exceptional circumstances that would have to be present in order to suspend any sentence of imprisonment that I may impose or substitute it by way of CSO.

97.  The defendant has served the public well, and I will exercise my discretion to give him a discount of 2 months’ imprisonment for each charge.  There being no further valid mitigation, the defendant is sentenced to a total term of 18 months’ imprisonment.