HKSAR v.ASHRIF MEHMOOD AND ANOTHER

DCCC1081/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1081 OF 2011

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Reasons for Sentence

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1.  The two defendants were convicted after trial of one joint charge of doing acts tending and intended to pervert the course of public justice, preferred against them under the Common Law, punishable pursuant to section 101I(1) of the Criminal Procedure Ordinance, Cap. 221.

Facts

2.  On the early morning of 6 May 2011, the 2nd defendant made a false report to the police claiming the 1st defendant had been abducted at knife-point the night before by a group of male persons of South Asian origin.  The kidnappers had driven away in a black private car followed by a white van.

3.  The 2nd defendant claimed to be able to recognize one of the two knifed kidnappers, whom he had seen near a certain storage yard and in Tai Nam Street, Sham Shui Po. 

4.  He took two police officers to a storage yard at Pak Heung.  Upon arrival, the officers noticed a number of South Asian men were scattered about looking for the 1st defendant. 

5.  They somehow found or noticed the 1st defendant at the back of an enclosed storage yard.  They alerted the officers and the 2nd defendant, helped to open the door at the entrance of the storage yard, and entered with the officers. 

6.  The officers noted it was pitch-dark inside and that the 1st defendant was bound up on the ground at the far end of the yard.  One of the two officers cut him loose. 

7.  The 1st defendant complained of being kidnapped and assaulted, and that his property had been taken away.  He heard during the kidnap that the abductors called each other by their full names, one of whom was Altaf Hussain.  The police sent him to hospital for examination.  No injuries were found. 

8.  The two defendants directed the police to the location where the alleged abduction had taken place.  The police seized from a nearby company the CCTV records (which showed, however, no black private car and white van had driven into or past the relevant location at the material time). 

9.  Then the defendants took the police to Tai Nam Street to a flat, occupied by, as it turned out, a Mr Iltaf Hussain.  No one answered the door when the police and the defendants arrived. 

10.  It transpired that this Mr Iltaf Hussain was the tenant of the storage yard next to the one where the 1st defendant was found and, more significantly, a witness in a criminal investigation.  Mr Iltaf Hussain had earlier attended an identification parade in which he picked out a suspect. 

11.  On 7 May 2011, Mr Iltaf Hussain received a telephone call from an unknown person asking him to withdraw the criminal complaint he made to the police.  The caller said he had made up a case of kidnap and robbery against him.   

12.  The court finds beyond all reasonable doubt that the kidnap was a false one, the purpose of which was twofold, first, to get Mr Iltaf Hussain arrested for a false charge of kidnap and robbery, and second, to force him to withdraw a criminal complaint to the police. 

The defendants’ background

(1) The 1st defendant

13.  The defendant is 24 years old and is married.  To his first marriage in Pakistan was born a son, who is now three years old.  His first wife and son are currently living in Pakistan. 

14.  The defendant has received up to Primary Six education in Pakistan. 

15.  He came to Hong Kong in 1998, and for a long time since then he has been living with his parents and younger brother in Yuen Long. 

16.  In the time since his arrival in Hong Kong, the defendant has married twice in accordance with the Islamic law and tradition.  His second wife is living with him and is pregnant. 

17.  The defendant works as a casual construction site worker making about $8,000 to $9,000 a month.  He would send $3,000 to $4,000 a month to Pakistan to cover his first wife and son’s living expenses. 

18.  In terms of previous records, the defendant has been bound over once.  It is submitted that in effect, he has maintained a clear record for the 14 years he has been in Hong Kong. 

19.  The defendant understands that an immediate term of imprisonment is inevitable, following his current conviction. 

20.  In mitigation, counsel for the 1st defendant urges the court to consider that the defendant’s acts have caused but a mere wasteful deployment of police resources.  As it turned out, Mr Iltaf Hussain was – fortunately – never arrested and never put through a trial; no great evil has been, counsel submits, caused by the defendant’s acts. 

21.  In the case of Attorney General v Yeung Kwong Chi [1989] 1 HKLRD 266, an innocent victim was framed up with a false allegation of indecent assault.  He was arrested by the police and charged before the court.  The criminal proceedings were discontinued only when the scheme came to light.  On a review application before the Court of Appeal, a sentence of 18 months’ imprisonment after trial was considered appropriate. 

22.  Counsel for the 1st defendant submits that the victim in the instant case never faced any criminal investigation by the police.  Finally, counsel asks the court to be as lenient as possible, particularly in view of the pregnancy of the defendant’s wife. 

The 2nd defendant

23.  The 2nd defendant came to Hong Kong in 1993 from Pakistan and joined his father here.  He has received only three years’ formal education in Pakistan.  

24.  Married with three children aged between 13 and 4½ years, the defendant is the third of a family of six siblings.  His wife is also pregnant; the date of expected delivery falls in August this year. 

25.  The defendant has worked previously as a driver, but is currently unemployed.  His family relies on social benefits of about $8,000 a month. 

26.  Counsel refers to the defendant’s previous record, one that was recorded against him over 10 years ago, which is not similar to the offence of which the defendant stands convicted. 

27.  Counsel asks the court to regard the defendant as a person of clear record for sentencing purposes. 

28.  It is likewise submitted that no great harm has flowed from the defendant’s conduct.  Counsel for the 2nd defendant suggests that the police should have had some degree of suspicion of the false allegation at an early stage, given the 1st defendant’s complaint about being assaulted was not supported by the medical findings. 

29.  The 2nd defendant also understands that imprisonment cannot be avoided.  Counsel submits that there is no sentence guideline for the offence of perversion of the course of public justice, and asks the court to adopt as low a starting point as the circumstances of the case would allow.  After all, the 2nd defendant has chosen not to give evidence in his defence during the trial. 

Discussion

30.  Perversion of the course of public justice is a serious common law offence that has been known to the law for a long time.  It is universally recognized that the proper administration of justice is indispensable for the growth and smooth functioning of the society.  The offence of perversion corrupts the administration of justice at its root. 

31.  The offence may be committed in numerous ways, but it has two principal characteristics, namely, it can be difficult to detect and it can result in grievances that can never be redressed.

32.  The court has considered the various authorities relied on by the parties and counsel’s submissions on sentence.  There appears to be no dispute between the parties at least on this point: in terms of comparables, the instant case appears to be unique. 

33.  In the court’s view, the present case falls within the worst of its kind.  The defendants had worked together to generate a false charge of kidnapping against an innocent person.  The immediate purpose was to get the him arrested which did not, as it turned out, materialise; and the ultimate aim was to force him, a witness in a criminal case, to abandon the cause. 

34.  In these circumstances, the false charge must be considered an extremely serious one; upon conviction, the innocent person would most definitely face a significant term of imprisonment.  In the court’s view, public interest cries out for a sentence with clear and sufficient deterrence. 

35.  There is no sentence guideline for the offence in question, so each case depends on its own fact. In the unique circumstances of this case, the court considers a sentence after trial should be one of four years’ imprisonment. 

36.  The court has carefully considered all matters in mitigation advanced on the defendants’ behalf and is of the view that nothing in their personal or family circumstances which warrant any reduction in sentence. 

37.  The court notes the pregnancies of the defendants’ wives but considers any hardship to the defendant’s family that flows from the defendant’s imprisonment a normal incident of a criminal conviction.  The court reiterates that public interest demands for a heavy sentence in this case.

38.  Before formally pronouncing sentence, the court would make the following observations.  The prosecution constitute an august institution.  They have a fundamental duty of fairness.  In a criminal trial, they address the issues rather than attack their opponents, directly or by innuendo.  In sentencing proceedings, they take great care to assist the court to arrive at a just outcome and avoid all possible appearances of advocating for a heavy sentence.  These constitute the best tradition of our prosecution practices which must be preserved. 

39.  In this case, counsel for the defence have, in the court’s view, maintained the best tradition of the Bar in defence of the best interest of their clients. 

Order

40.  For the offence of which they stand convicted, the two defendants are each sentenced to a term of imprisonment of four years.