HKSAR v. SHUM YAT SING

CACC 562/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 562 OF 2001

(ON APPEAL FROM DCCC 658 OF 2001)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted of a conspiracy to pervert the course of public justice after a trial in the District Court before Deputy Judge Mierczak and sentenced to 2 years 6 months imprisonment.

2. He seeks leave to appeal against the sentence imposed.

3. This was a bad case.

4. The applicant who was aged 33 at the time of the offence was a bus driver.

5. The conspiracy in question involved framing the victim, a young man who is slightly mentally retarded, with indecent assault.

6. The way the applicant went about this was to suggest to D2 and D3 in the trial below that they should board the bus he was driving at the time when he knew the victim would be on the upper deck of the bus and themselves go to the upper deck and then fabricate a complaint of indecent assault.

7. D2 was a young girl aged 16 and D3 was a youth aged 14. Both were known to D1 who organised dancing lessons. They were both pupils.

8. The arrangement was D2 would cry out that she had been indecently assaulted. The applicant would then stop the bus and go to the upper deck to investigate the complaint. D2 would give details of the alleged assault and D3 would say that he witnessed it.

9. All went according to plan. A report was made to the police and the victim was charged with indecent assault.

10. There was a hearing at Tuen Mun Magistracy when all the defendants testified against the victim.

11. Fortunately the victim was not convicted of this offence.

12. It appears that the motive for the offence was that the victim's father had made a complaint to the police that D1 had claimed to be a member of a triad society.

13. In the perfected ground of appeal complaint is made that the sentence imposed was a much heavier sentence than the sentence in the so-called guideline case of Yeung Kwong-chi [1989] 1 HKLR 266.

14. The first point to make is that this was not a guideline case. It was an application for a review by the Attorney General.

15. There was no suggestion that the sentence imposed could be regarded as a guideline. This was not surprising as the circumstances of cases of this nature vary infinitely.

16. In any event there were a number of gravely aggravating features in the present case.

17. One was the fact that all three conspirators were prepared to continue with their conspiracy even to the extent of giving false testimony in court.

18. There was also the fact that the applicant was prepared to conspire with two youngsters who were both less than half his age. This provided a shocking example to them.

19. There was also the fact that the victim is slightly mentally retarded. This was undoubtedly a cruel and cynical crime.

20. Having regard to all of the circumstances of the offence it can safely be said that the sentence was not one day too long.

21. The application is without merit and is dismissed.