HKSAR v. CHIM WAI KIN

DCCC 455/2017

[2018] HKDC 328

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 455 OF 2017

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of conspiracy to pervert the course of justice. That is the 2nd charge on the indictment, and the facts of that conspiracy are set out in an amended Summary of Facts from the prosecution dated 18 January 2018.

2.  In summary, the facts say that the defendant has a cousin who is described as PW1 in those facts, and that person, PW1, received a phone call from the defendant asking to meet, and this was about two weeks before 27 October 2009.  The defendant told PW1 that someone - that is, another person - wanted to stop a woman at this time from attending court on the 8th floor of the District Court in Hong Kong.  There was no mention of how and why that was wanted to take place, but if PW1 could do this, he would get a reward of 60,000.

3.  PW1 approached another man called Lai, seeing if he could do the job for 30,000, and Lai said he could find someone to do it. Eventually PW1 informed the defendant that someone had been found.

4.  Later the defendant called PW1 to tell him that the target had changed to what was described as a bald Caucasian male who wore many rings on his hands, and he would also appear at the 8th floor of the District Court of Hong Kong.

5.  The defendant asked PW1 to go to the District Court together with him to see if Lai had really found someone to do it.  When they got to Wan Chai, the defendant said he had something to do, and left; so PW1 was there alone.  He then received a call from Lai telling him the target was in the District Court.

6.  PW1 saw the man in question and got onto a taxi and tailed him and watched him for about 20 minutes.  PW1 then communicated with Lai and said he did not know what the man had done afterwards, and he later called the defendant to tell him about this.

7.  PW1 went back to mainland China, maintaining telephone contact with the defendant and Lai as well.  Nothing had been done, and the defendant told PW1 that the final deadline was apparently 27 October, and they must stop the target from appearing in court that day.

8.  PW1 informed Lai later of the final deadline, and then, in the afternoon of 27 October 2009, PW1 was informed by Lai that the job was done.  PW1 found out later that someone had splashed what is described as corrosive fluid on the target and they were informed of this in the news.

9.  PW1 informed the defendant the job was done and went back to the mainland.

10.  Some few days after the attack, two to three days, the defendant met with PW1 in Shenzhen and told him - that is, PW1 - the boss had complained the job was not done well and refused to pay, but the defendant said he would try and chase the boss for payment.

11.  Over the next year, the defendant met with PW1 several times, and paid him about $20,000 in total.

12.  The defendant was eventually arrested in Urumqi in Xinjiang on 27 October 2016, being received into Hong Kong Police custody on 6 February 2017, and he was arrested at the same time and admitted under caution he had referred the job to his cousin, who is PW1.  The defendant made further admissions in the course of a video-recorded interview conducted with him on 6 February 2017, whereby he gave his version of what had occurred.

13.  What he told the police was that about a month before the offence he had been drinking with a friend called “Ah Keung” who said he needed someone to threaten a witness and had offered to pay a reward of $100,000 for this.  The defendant said he had referred it to PW1, who needed money; that is, his cousin.  He then called PW1, who agreed to do this, and then put him in touch with “Ah Keung”.  He said that later on he was told that the job had been done by PW1.  The defendant was afraid, and he left Hong Kong by entering China illegally.

14.  The defendant agrees that he conspired with PW1 and other persons to pervert the course of justice by obstructing and preventing this person described as a bald Caucasian male from attending court in relation to ongoing judicial proceedings heard at the 8th floor of the District Court of Hong Kong back in what was 2009.

15.  As far as the defendant’s personal circumstances are concerned, he is now aged 41.  He has on his criminal record two matters relating to selling or possession of liquor without a licence back in 1994, where he was fined.  Neither of those charges seems particularly relevant to what I am dealing with today.

16.  He has been educated to Form 3.  He was a cook and also the manager of a nightclub.  He is described as not suffering from any illness.  He has family in Hong Kong, although he is single himself. 

17.  Because the defendant has what I would call a non‑serious criminal record, I obtained a probation officer’s report for him which reaches some conclusions about the defendant, but generally the report, I would say, is quite positive about his background.  He indicates in this report that the defendant has been married, but apparently was divorced in March of 2017, and that there is a child which is looked after by a maternal aunt in the mainland, but the present whereabouts of that child are unknown.

18.  As I say, the report speaks quite positively about the defendant.  He indicates through the probation officer that he apologises to the victim and wishes to have a chance to, as described, being beside his father to provide help to him in the future.  He describes himself as a middle-man, committing the offence to please a former client, and also at the same time to offer work to his unemployed cousin; that is, the person described as PW1.

19.  Turning to the question of sentencing, of course, one must acknowledge that any attempt to commit this offence, which is conspiracy to pervert the course of justice or to pervert the administration of justice, is an extremely grave matter.  What I do know about the proceedings in question is that they were in the District Court, so they were of a more serious nature, and that the actions taken by people other than the defendant were of a very serious nature which was used to disable the person from attending court. It is not said in the facts and as part of the defendant’s mitigation that he was at no time aware of the nature of what means would be used to prevent the witness from or the person from attending court, and that cannot be gleaned from the facts that that was something that he knew about.

20.  What the defendant has done in this case is assist in setting in motion what led to a very serious matter, acting as a middle‑man between the original person he met and his cousin, PW1.

21.  Nevertheless, the defendant has admitted to what is a serious offence and what was a grave perversion of the course of justice.

22.  There is no guideline as to the appropriate sentence that should be imposed for offences of this nature.  A number of factors are said to be of importance to be considered by the court.  In the case - I believe it is R v Tunney [2007] 1 Cr App R 91 - the Court of Appeal in England said:

“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.”

23.  What I know about the nature of the offence is simply that it was an offence on a case being tried in the District Court of Hong Kong.  What is described as the degree of persistence in the conduct of the offender, here the defendant was the person who put someone, PW1, in touch with a person who would carry out the act, and what was the effect of the attempt to pervert the course of justice on the course of justice itself, nothing is said about that in the facts, so I cannot at this stage intuit or infer that the actual course of justice was perverted in a substantive manner.

24.  The offence itself is an offence that strikes at the heart of the system by which law and order is enforced in society.  If such an act were to succeed in any appreciable extent, it would destroy public confidence in that system.

25.  In determining the starting point for sentence, I take into account what I do know about this offence and the gravity of the conduct.  I also take into account the defendant’s plea of guilty, his regret, his extension of an apology, and his personal circumstances, although they do appear to carry less weight in a case such as this than they would in relation to other crimes.

26.  I must determine a starting point for sentence. Having done that, I then will reduce the starting point for sentence by one‑third to take account of the defendant’s plea of guilty, and then I will give the defendant some credit for the fact that he was detained in Chinese mainland custody between October 2016 and February of 2017.

27.  Considering the very serious nature of this offence, I shall take a starting point of 42 months’ imprisonment.  After deducting that by one-third, I am left with a sentence of 28 months’ imprisonment.  I shall give the defendant a further 3 months’ benefit of a reduction at this stage to reflect the period spent in custody in the mainland.

28.  This leads to a final sentence for this offence, the 2nd offence on the indictment, of 25 months’ imprisonment.  That will be the sentence of the court.