HKSAR v. YUEN SUN WING AND ANOTHER

[English Translation - 英譯本]
CACC 414/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 414 OF 2008

(ON APPEAL FROM DCCC 376 OF 2008)

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REASONS  FOR  JUDGMENT

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Hon Tang VP (giving the reasons for judgment of the court):

1. The 1^st applicant was convicted of two counts of conspiracy to pervert the course of public justice by Deputy District Judge Sham on 26 November 2008.

2. The 1^st charge of conspiracy to pervert the course of justice alleged that the 1^st applicant conspired with Sin Ki Hoi and other unknown persons to pervert the course of public justice in Hong Kong between 1 August 2005 and 15 April 2006, by falsely representing to the police force that Sin Ki Hoi was the driver of various taxis detected to have committed various road traffic offences.

3. The 2^nd charge of conspiracy to pervert the course of justice alleged that the 1^st applicant and the 2^nd applicant Kwan Fat-cheong conspired with Sin Ki Hoi and other unknown persons to pervert the course of public justice in Hong Kong between 1 October 2005 and 2 June 2006, by falsely representing to the police force that Sin Ki-hoi was the driver of various taxis detected to have committed various road traffic offences.

4. The 1^st applicant was sentenced to 4 years’ imprisonment for each of the two aforesaid charges, with 6 months of the sentence of the 2^nd charge ordered to run consecutively to the sentence of 4 years of the first charge, making a total sentence of 4 and a half years.

5. The 2^nd applicant, who faced the 2^nd charge, was also convicted and sentenced to 4 years’ imprisonment.

6. The two applicants applied to this court for leave to appeal against conviction and sentence, but both abandoned their applications for leave to appeal against conviction of their own accord at the hearing.  The abandonment of the applications was accepted by this court and their applications for leave to appeal against conviction were dismissed accordingly.

7. The 1^st applicant is represented in his application for leave to appeal against sentence by counsel Mr P. Y. Lo, instructed by Legal Aid Department.  The 2^nd applicant is represented in his application for leave to appeal against sentence by counsel Mr Wong Hay Yiu and Ms Louise Chan, assigned by the Bar Free Legal Service Scheme.

8. The facts of this case are fairly simple.  The two applicants made arrangements for Sin Ki Hoi (PW1) to act as a substitute for other drivers who had committed traffic offences, so that they could be free from legal liability, and thus could avoid accumulating demerit points or being disqualified from driving.  Sin Ki Hoi was also charged with two counts of perverting the course of public justice himself.  He pleaded guilty in the District Court on 18 December 2007, and subsequently gave a witness statement to ICAC officers and assisted the prosecution by giving evidence against the two applicants.  The trial judge Deputy District Judge Sham Siu-man accepted his evidence and convicted the two applicants accordingly.

9. The background of the case according to the facts agreed by both the prosecution and the defence is as follows:

“2.   The Hong Kong Police Force has installed red light cameras and radar cameras in various areas in Hong Kong, which take photographs of vehicles breaching traffic regulations, including ‘driving in excess of the speed limit’ (speeding) and ‘disobeying traffic light signals’.  Most of these photos capture the rear number plates of the offending vehicles.  The police will key the information collected from the photos into a computer system called ANTECS, and issue summonses accordingly.

3. Since each of the photos relates to a case of contravention of traffic regulations, there will be for each of them a separate case reference number.  After the registration number is keyed into the police computer system, the particulars of the vehicle owner (including the name and contact address) as provided by the Transport Department will be displayed.  The computer can then be operated to print out automatically a request to provide the particulars of the identity of the driver, i.e. Pol. 571 (‘vehicle owner’s form’).  The form is printed with the name and contact address of the vehicle owner as well as the case reference number.  The police will then send the form to the vehicle owner, requesting him/her/it to provide particulars relating to the identity of the offending driver.

4. After receiving the completed vehicle owner’s form, the police will check if the driver’s name provided tallies with the vehicle owner’s name.  If they refer to the same person, the police will key into the computer system that the vehicle owner is the offending driver, and a window for selecting the issuance of a fixed penalty ticket or summons will prop up.  If the identity of the driver provided by the vehicle owner shows that the driver is not the vehicle owner himself, the police will key into the computer system the driving licence number of the alleged driver that was provided by the vehicle owner, another Pol. 571 form (‘the driver’s form’) will then be printed out and sent to the driver involved.  After receiving the completed form confirming the driver’s identity, the police will summons the offending driver in accordance with the procedures.  If the driver completing the form states that he was not the driver at the time of the offence, and provides the particulars of the driver who was actually involved, the police will send another driver’s form to that other alleged driver.  After receiving the completed form confirming that driver’s identity, the police will summons him for breaching traffic regulations in accordance with the procedures.

5. The reference number in the top right-hand corner of the vehicle owner’s form sent to the vehicle owner ends with ‘O0l - 01’, ‘O’ represents vehicle owner, and ‘01’ represents the first vehicle owner’s form sent out by the police.  The reference number on the driver’s form sent to the driver subsequently ends with ‘D0l-01’, ‘D’ represents the driver, and ‘01’ represents the first driver’s form sent out.  If a second driver’s form has to be sent out in the circumstances as described above, the reference number on the second driver’s form will end with ‘D01-02’, and ‘02’ indicates that this is the second driver’s form.  The reference numbers on the vehicle owner’s form and the driver’s form are otherwise the same.

6. Once an offending driver is convicted upon being summonsed, he may be fined and may incur demerit points, ranging from three to ten points, depending on the seriousness of the breach.  If any driver accumulates fifteen or more points within two years, the Transport Department will apply to the court for the disqualification of his/her driving licence.”

10. The demerit point system is provided in section 8 of the Road Traffic (Driving Offence Points) Ordinance (Cap. 375):

“(1)… where 15 or more points have been incurred by a person in respect of offences which were committed within a period of 2 years of each other, he shall be liable to be disqualified from holding or obtaining a driving licence in accordance with this section.”

First offenders shall be disqualified from holding or obtaining a driving licence for 3 months, whereas repeat offenders shall be disqualified for a longer period of 6 months.

11. The 1^st applicant is one of the shareholders and directors of Silver Dragon Taxi Company Limited (“Silver Dragon”).  And the 2^nd applicant is one of the shareholders and directors of Shun Po Motors Company (“Shun Po”).

12. During the period when the offences took place, 6 offending taxis were placed under the management of Silver Dragon directly by the vehicle owners or indirectly through intermediaries.  And the number of offending taxis placed under the management of Shun Po directly by the vehicle owners or indirectly through intermediaries totalled 12.

13. The police issued 6 Pol. 571 forms (“driver’s form”) in respect of the 6 vehicles under the management of Silver Dragon, and 14 in respect of the 12 vehicles under the management of Shun Po.  All the return forms claimed that Sin Kin-hoi was the driver at the time of the offence.

14. Of the 20 traffic offences, 15 were speeding, 5 were disobeying traffic light signals.

15. Eventually, Sin incurred a total of 20 points in respect of the taxis under the management of Silver Dragon and was fined $2,850 in total.  He incurred a total of 42 points in respect of the 14 traffic offences committed in relation to the taxis under the management of Shun Po, and was fined $8,400 in total.

16. Regarding the sentences, the 1^st applicant said that the total sentence of 4 and a half years in respect of the conviction of his two charges was excessive.  The 2^nd applicant pointed out that PW1 Sin Ki Hoi also committed two similar offences of perverting the course of public justice, but the court only adopted a starting point of 2 years.  The disparity between his sentence and Sin Ki Hoi’s was too great in comparison, thus giving him a legitimate grievance.

17. Record shows that Sin Ki Hoi, like the 1^st applicant, was also charged with two offences: HKSAR and Sin Ki Hoi (unreported, 24 February 2009, CACC 380/2007).  Stuart-Moore VP and Wright J said in paragraph 12 of the judgment as follows:

“12. It seems to us that the appellant received under half the sentence appropriate for conspiracies such as these when it is plain they called for deterrent sentences….”

The Court of Appeal was of the view that the starting point of 2 years adopted in Sin Ki Hoi’s case was too low; and that the reasonable sentence should be more than double the starting point of two years, namely more than 4 years.

18. In HKSAR and Fung Shu Wai (transliteration) (unreported, 17 November 2005, HCMA 673/2005), the appellant stood in as a substitute for the co-defendant surnamed Mak on 1 May 2003, 31 May 2003 and 19 August 2003 respectively, falsely representing that he was the speeding driver on the aforesaid three dates.  He was given a total sentence of 12 months by the magistrate.  On appeal, Deputy Judge of the Court of First Instance Derek Pang (as he then was) held that the sentence of 12 months was not manifestly excessive.

19. Moreover, according to the information obtained by the 1^st applicant from the prosecution, 29 persons were arrested in the same law enforcement operation.  Twenty-five of them were formally charged (including the two defendants in this case and Sin Ki Hoi); 6 of them acted as intermediaries (including the two defendants in this case), 11 of them acted as substitutes (including Sin Ki Hoi), and the remaining 8 were drivers.

20. Most of the persons arrested in the operation were charged with conspiracy to pervert the course of public justice.  There was only one driver who was charged with performing a series of acts which had the tendency and were intended to pervert the course of public justice.  Apart from this case and Sin Ki Hoi’s case, all the trials arising from the law enforcement operation were conducted in the magistracies.

21. Apart from the defendants in this case and Sin Ki Hoi, the defendants in other cases were mostly sentenced to community service (2 ordered to serve 240 hours, 1 ordered to serve 200 hours, 14 ordered to serve 160 hours, 2 ordered to serve 80 hours).  Of the defendants who were sentenced to imprisonment, an intermediary (Tsang Chi Sum) was sentenced to a total of 3 months’ immediate imprisonment for two counts of conspiracy to pervert the course of public justice, a driver (Chan Hoi Shan) was sentenced to 3 months’ immediate imprisonment for one count of conspiracy to pervert the course of public justice, and an intermediary (Shum Chi Tat) was sentenced to a total of 8 months’ immediate imprisonment after trial for two counts of conspiracy to pervert the course of public justice.  The above information shows that magistrates conducting the relevant trials were obviously inclined to pass relatively short sentences on individual cases of conspiracy to pervert the course of public justice involving acts of substituting others by making false representations, and the first offenders were even sentenced to community service orders.

22. In Sin Ki Hoi, the Court of Appeal stated in its judgment that Sin Ki Hoi had received $21,600 from the 1st applicant and $36,000 from the 2nd applicant.  As regards the two applicants, there is no evidence showing that they had received any pecuniary rewards, but of course their companies might have been indirectly benefited.  In passing sentence, the trial judge said as follows:

“11. The court has obtained the background reports of the two defendants.  They admitted for the first time in their background reports that they had performed the wrongful acts alleged in this case.  According to the 1st defendant, he got someone to stand in for the offending taxi drivers merely out of kindness, because he didn’t want them to lose their jobs through disqualification after accumulating enough demerit points.  The 2nd defendant also admitted in the report that he knew that it was unlawful for him to instruct someone to falsely represent to the police that he was the offending driver, but it was in fact a very common practice in their trade.  They emphasized that they did not receive any pecuniary benefits in the process”.

23. The offences committed by the applicants are without doubt serious.  They helped offending drivers evade justice, thus allowing drivers who jumped red eights and drove at excessive speed to continue to drive on the roads of Hong Kong.  Their offences systematically allowed drivers to avoid the sanction of the law after committing offences.  The offences in this case spanned over eight months and involved as many as twenty offending drivers.

24. Counsel for the prosecution Mr Tam submitted that the culpability of the intermediaries should be more severe than the substitutes.  We are of the view that the culpability of those who pay others to act as substitutes should at least be regarded as similar to that of the substitutes.  The culpability of a substitute will of course increase if he stands in for more than one person, and the culpability of an intermediary depends on how many such cases he has helped arrange.  The two applicants in this case are both intermediaries, and Sin Ki Hoi is the only substitute.  The culpability of the two applicants who acted as intermediaries should be more severe than Sin Ki Hoi’s, even though Sin received substantial pecuniary benefits but they didn’t. This is because they helped make quite a number of “substitution” arrangements.

25. In Sin Ki Hoi, the Court of Appeal held that the starting point of 2 years in respect of the total sentence was too low, which we fully agree.  However, the court’s opinion in that case that the reasonable sentence should be over four years is merely an obiter dictum in the judgment.  One cannot find from that obiter dictum an indication that the Court of Appeal had considered that matter thoroughly before giving it. Nor can one see whether the Court of Appeal knew how the other persons involved were dealt with.  Nevertheless, we agree with the Court of Appeal’s view in Sin Ki Hoi that deterrent sentences must be passed in respect of these offences.  These offences are in our view very serious, hence we specifically discussed in court ways of deterring people from committing them.  We believe an effective deterrent is to make people aware that those who commit these offences are very likely to be caught.  We find in our discussion that there exist many loopholes in the investigation process of these offences. For example, the opportunity cost to re-offend is very low when a driver has accumulated 15 points but has yet to be disqualified from driving by the court.  The computer system of the Transport Department or the police force cannot immediately indicate whether the target vehicles under investigation are taxis, or how many demerit points the drivers of the relevant vehicles have incurred.  That explains why Sin Ki Hoi was only disqualified from driving after accumulating 62 demerit points.  Furthermore, we were given to know that Sin Ki Hoi was only disqualified from driving for 3 months even though he had accumulated as many as 62 demerit points.  Once the disqualification period has expired, the calculation of the demerit points will start afresh, meaning that the 62 demerit points already incurred will be wiped out.

26. It is our view that a set of effective measures, including the use of appropriate computer software, must be adopted to plug the loopholes.  Heavy sentences act as a deterrent and some offences must be punished heavily to have a deterrent effect. But it should be the last resort: The court should always consider if there are any other feasible deterrent measures first.  Many suggestions on the effective measures to be adopted were put forward by various parties during our discussion, including the penalty to be imposed on the substituted.  At present, the substituted are rarely given immediate custodial sentences.  We take the view that the court can seriously consider sentencing drivers who evade disqualification by getting substitutes to a term of immediate imprisonment.  It should serve as a deterrent to sentence first offenders to a term of 3 to 6 months’ imprisonment.  People acting as substitutes can be dealt with similarly, and the penalty for those who act as substitutes for more than one person would of course be increased.  Regarding the intermediaries, their penalty should also be increased if they make arrangements for more than one person to act as substitutes or to be substituted.  However, the expected effect may not be achieved if the court only punishes the intermediaries heavily whilst lets off lightly persons acting as substitutes or those who are substituted.  If the loopholes that exist in the investigation process can be closed, the chances of committing such offences would no doubt be reduced.

27. Having regard to the relevant factors mentioned above, we grant leave to the two applicants to appeal against sentence, treat the application as the appeal and allow the appeal.  Regarding the sentences of the 1st applicant, we take the view that the appropriate sentence for both the 1st and 2nd charges should be 3 years. The two sentences are to run concurrently, making a total sentence of 3 years.

28. As regards the 2^nd applicant, the sentence for the 2^nd charge should also be 3 years.

29. Although the 1^st applicant faced one more charge than the 2^nd applicant, we find that the total sentence of the 1^st applicant needs not be increased.  According to the facts, the 1^st applicant played a lesser role in the 2^nd charge, he only introduced Sin Ki Hoi to the 2^nd applicant, and there is no evidence showing that he directly took part in the substitution arrangements involving the 12 vehicles managed by Silver Dragon.  Moreover, there were fewer offending vehicles involved in the 1^st charge than those involved in the 2^nd charge; the 1^st charge involved 6 vehicles and 6 “substitution” offences, while the 2^nd charge involved 12 vehicles and 14 “substitution” offences.