HKSAR v. UMER-FAROOQ

DCCC 160/2024

[2025] HKDC 938

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 160 OF 2024

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REASONS FOR SENTENCE

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1.  The 2^nd Defendant was convicted after trial of Charge 7, i.e. Doing an act or a series of acts tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101I(5)  of the Criminal Procedure Ordinance (Cap. 221). He was jointly charged with the 1^st and 3^rd Defendants, who had pleaded guilty.

2.  The 1^st to 3^rd Defendants have agreed that a false representation be made to the police that the 1^st Defendant was the driver of a private car NA6660 (hereinafter referred to as the “Vehicle”)  which was involved in a traffic accident outside West Wing of Justice Place on Lower Albert Road (hereinafter referred to as “the Scene”).

3.  On 28^th July 2023, the 3^rd Defendant was the registered owner of the Vehicle.  The 3^rd Defendant, apart from being the driver in question when the accident occurred, had used the Vehicle when its vehicle licence has expired on 13^th July 2023, and that the third party insurance does not cover situations where the driver does not hold a driving license or had been disqualified.  It was also not in dispute that the 3^rd Defendant was disqualified from driving from 11^th May 2023 for 6 months.

4.  On 28^th July 2023, at around 6:50 am, the 2^nd and 3^rd Defendants and another male “X” left a restaurant in Central and boarded the Vehicle, with the 3^rd Defendant in the driver’s seat, X at the front passenger seat and the 2^nd Defendant at the rear passenger seat.

5.  At around 7 am, the Vehicle was traveling downhill and making a right turn on Lower Albert Road, when it suddenly swerved to its left onto the pedestrian pavement, and crashed onto a security kiosk of West Wing, Justice Place.  The 2^nd and 3^rd Defendants and X left the Vehicle immediately, fled towards the direction of Wyndham Street, and boarded a taxi at Queen’s Road Central at around 7:05 am.

6.  The 2^nd and 3^rd Defendants and X alighted the taxi outside a carpark at Ka Wai Chuen in Hung Hom (hereinafter referred to as “the Carpark”).  The 2^nd Defendant and X waited at the Carpark, while the 3^rd Defendant went home.  Not long after, the 3^rd Defendant and his younger brother the 1^st Defendant joined the 2^nd Defendant and X at the Carpark.  After a brief discussion amongst those present, the 1^st to 3^rd Defendants and X left the Carpark together.

7.  The 1^st and 2^nd Defendants then boarded a taxi near the Carpark.  The taxi reached Ice House Street near the Hong Kong Diamond Exchange Building, and the 1^st and 2^nd Defendants alighted.  They walked towards Lower Albert Road, with the 1^st Defendant walking ahead.  After walking for 3 minutes, the 2^nd Defendant made a U-turn and walked towards Queen’s Road Central.

8.  The 1^st Defendant then approached the police on Lower Albert Road in the vicinity of the Scene.  The 1^st Defendant made the representation to the police officers present that he had driven the Vehicle from his residence in Hung Hom to Lan Kwai Fong in the early hours of that day and had parked the Vehicle in Lan Kwai Fong, that he was the driver of the Vehicle, and had lost control of the Vehicle at the time of the accident.  He also stated that he had fled after the accident, and had now come back to face the consequences.

9.  Later that day, the police arrested the 1^st Defendant for the offences of dangerous driving and criminal damage.  The police took the 1^st Defendant to the 1^st and 3^rd Defendants’ residence for house search.  The 3^rd Defendant was not at home, and the key of the Vehicle was found at the house search.

10.  The 2^nd Defendant surrendered to the police on 29^th July 2023.  He was arrested for conspiracy to pervert the course of justice.  The 3^rd Defendant surrendered on 31^st July 2023, and was arrested for conspiracy to pervert the course of justice and traffic related offences.

11.  I have found in the Reasons of Verdict that there was a common purpose, agreement or understanding between the 1^st and 3^rd Defendants, that the 1^st Defendant shall return to the Scene and claim to be the driver at the time of the accident, and that the 2^nd Defendant’s role was to accompany the 1^st Defendant on the taxi and to a location in the vicinity of the Scene, so as to guide the 1^st Defendant who was not present at the accident.  The 3^rd Defendant’s role was to lay low and avoid attending the Scene, as can be demonstrated by not boarding the taxi back to Central, and not being at his residence when the police arrived later that day, and leaving the Vehicle’s key at his home.

12.  I was also satisfied that the 2^nd Defendant, together with the other Defendants, intended the actions and conduct of the Defendants to have the tendency to pervert the course of public justice, i.e. to allow the 3^rd Defendant to escape sanction for his criminal behaviour which includes the dangerous driving which caused the accident.

The 2^nd Defendant’s Antecedent Statement and Mitigation

13.  The 2^nd Defendant is 23 years old and has a clear record.  He is a transport worker, and had been educated to Form 6.  He lives with his parents.

14.  It is submitted that the 2^nd Defendant’s involvement is comparatively minor, and the Court is urged to consider the 2^nd Defendant’s youth, his clear record, his representation of Hong Kong in the Hong Kong Hockey Team, and his detention under police custody from 29^th to 31^st July 2023 after his arrest.

Sentencing Considerations

15.  The Court has considered all mitigation and mitigation documents, the authorities submitted, the 2^nd Defendant’s clear record, and his surrender to the police.

16.  I have considered both authorities submitted by the Prosecution and the comments from the Defence.  The basic principles of sentencing this type of offence is stated in AG v Yeung Kwong Chi [1989] 1 HKLR 266.  It was held that the normal sentence for an attempt to pervert the course of justice was one of immediate imprisonment.  In order to justify any non-immediate custodial sentence, abnormal circumstances must be present.  Although clear record, good family background, a single fall from grace, the likelihood of leading a blameless life in future were all proper matters for consideration, they are by no means abnormal when put in the context of a crime of this nature so as to justify a suspended sentence.

17.  In the present case, the Defendants’ agreement if successful, had the result of not only allowing the 3^rd Defendant to escape from his responsibility concerning Charges 1 (dangerous driving), 3 (driving an unlicensed vehicle), 5 (failing to stop)  and 6 (failing to report), but also to escape from the liability for Charges 2 (driving while disqualified)  and 4 (using motor vehicle without third party insurance), with Charge 2 leading to an almost inevitable immediate custodial sentence.  This was the reason for which they had engaged in the offence involving Charge 7.

18.  The misrepresentation was a carefully thought out and detailed plan. Although there is no indication as to the amount of police manpower wasted on this misguided investigation direction concerning the accident, it is to be expected that heavy input was made into investigating an accident involving an unexplained car crash at Justice Place.

19.  The Prosecution submitted the case of Secretary for Justice v Lee Ying Tung [2023] 3 HKLRD 667, which was a review of the sentence filed by the Secretary for Justice.  The respondent’s husband was intercepted by the police while leaving their apartment, and alerted the respondent that there were police approaching, and not to open the door.  Several minutes later, a bag of dangerous drugs was thrown out of the window from the apartment.  The respondent was charged with perverting the course of public justice, and was sentenced to 84 days’ imprisonment after a guilty plea.  It was stated that the general starting point for providing false account to the police investigating a serious offence is between 2 and 3 years; and for concealment of evidence, the same bracket of 2 to 3 years’ starting point applies.  Upon review, the starting point of 3 years was adopted.

20.  I am of the view that, despite the present case having the element of providing a false account to the investigating police, although the offence involved crashing into Justice Place, it was not intended as a provocation to the authorities.  It was no more than the 3^rd Defendant losing control of the Vehicle and thereby committing the act of dangerous driving.  As such, although it cannot be seen as a minor case, it is not very high in the spectrum of seriousness for this type of offence.  Therefore I do not think a starting point as high as 2 to 3 years for this Charge is warranted.

21.  Of the culpability between the Defendants, I have found that the 3^rd Defendant was the mastermind of the plan.  But that is not to say that the 2^nd Defendant should be dealt with by sentences other than immediate custodial sentence.  I accept that he has nothing to gain from the offence.  Yet despite his good record and background, he should know the seriousness, if not the penalty, of tampering with the course of justice.  I do not agree that his role was relatively minor, as his role was a crucial one, without which it cannot be ensured that the 1^st Defendant would be able to approach the vicinity of the Scene and make the intended false representation to the police.

22.  The Defendants’ plan involved a good deal of premeditation and planning, and cannot be acts of impulse or the result of lack of consequential thinking. I am of the view that there are no abnormal or exceptional circumstances justifying imposing anything other than an immediate custodial sentence.  CSO and suspended sentence are therefore not suitable options.

23.  I shall therefore adopt the starting point of 16 months for Charge 7. The 2^nd Defendant had been convicted after trial.  I do not find any reason in the mitigation that would justify lowering of the starting point. The 2^nd Defendant shall be sentenced to 16 months’ imprisonment.