HKSAR v. NUEVA FLORGEFEL FLORES AND ANOTHER

DCCC 979/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 979 OF 2012

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Reasons for Sentence

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1.  Defendants, both of you pleaded guilty to two offences of conspiracy to pervert the course of public justice, contrary to Common Law and sections 159A and 159C of the Crimes Ordinance and punishable under section 1011(1) of the Criminal Procedure Ordinance, Cap 221. You each admitted the facts and I convicted you.

2.  Briefly, the facts are as follows.  On 3 June of last year, that is 2012, at 2016 hours, you, D1, reported to police that you had been raped by PW1.  You alleged that you had met PW1, a tailor, outside Chung King Mansions.  He gave you a name card and took you to a guesthouse in Tsim Sha Tsui for measurement and fitting.  There, with the assistance of another male, he raped you.  He used no condom.

3.  You then led the police to PW1’s shop where he was arrested.  He was held for about 24 hours in custody.

4.  D1, on 4 June of last year, you gave a witness statement in relation to the rape.  

Charge 2

5.  On 17 July, at about 2320 hours, the police received a report that you, D1, you were tied up and abandoned at Ma Shi Po at Fanling.  They went to release you.  You alleged that you went to Chung King Mansions at about 2025 hours that day to photocopy documents for your employer.  In the rear lane, you were intercepted by PW1 and four Bangladeshis who were males.  PW1 sealed your mouth with adhesive tape and tied you up.  He threatened to kill you if you testified and offered you $50,000 to leave Hong Kong.  You were then abandoned in the Sheung Shui area.

6.  After further police investigation inquiries, you, D1, were arrested on 31 July last year.

7.  After initially maintaining your original complaint, you finally admitted the following:

(1) Both reports were false, made on the instructions of your boyfriend, D2, who had grudges against PW1;

(2) D2 intended PW1 to be gaoled;

(3) D2 gave you PW1’s contact details and asked you to seduce PW1, which you agreed to do;

(4) On 3 June of last year, you and PW1 had consensual sex;

(5) You committed the offence out of love for D2;

(6) The second report too was false, made again on the instructions of D2;

(7) On 17 July of last year, D2 and his friend took you to the New Territories where your mouth was sealed and your hands tied by D2;

(8) D2 told you to lie on the ground and wait for the police. They arrived about seven minutes later.

8.  On 1 August of last year, you, D2, were arrested and initially denied the offence but eventually admitted the following:

(1) You instructed D1 to make the false reports as you had grudges against PW1;

(2) As PW1 was released on bail, you instructed D1 to make the second report;

(3) On 17 July of last year, you and your friend went to Ma Shi Po where you tied up D1 with adhesive tape. Your friend called the police;

(4) You did not threaten D1 who did this out of love.

9.  PW1 confirmed the intercourse with D1 as consensual and that he never took you to Fanling, threatened you or tried to induce you not to give evidence. 

10.  D1, you are a person of hitherto clear character, that D1 is a person of clear record.  You, D2, have two previous convictions, neither of which are similar.  The last was a conviction for assault occasioning actual bodily harm on 2 September of 2011.  That resulted in a sentence of 2 months’ imprisonment suspended for 12 months, and you accepted you were in breach of that suspended sentence.

11.  On behalf of you, D1, Mr Leung entered mitigation.  He told me that you are 26 years of age, coming to Hong Kong in 2011 as a domestic helper.  You are a widow with a son of 7.  You had indicated that you intended to plead guilty from the outset.  You had not realised the seriousness of the crimes which arose out of love for D2.  Now you did appreciate how serious they were.

12.  Quite correctly, Mr Leung submitted there was no tariff for this type of offence.  Each case had to be decided on the particular facts.  He told me that you understood immediate imprisonment was inevitable.  He said you received no material gain from the crimes and you committed them out of love for D2.  Also, by way of mitigation, he submitted that you had given a non-prejudicial statement to the Department of Justice and you were willing to give evidence.  At that time, you, D2, were pleading not guilty.

13.  Mr Leung said although there were two offences, this was in fact one course of conduct.  He said you were now extremely remorseful.  He submitted to me a letter that you had written.  He made reference to your clear record and urged leniency in your case.

14.  Mr Donald then provided me with written submissions and mitigation and took me through those written submissions.  I am obliged to him for making the submissions in that form.  He reminded me of your plea of guilty and that the offences arose from grudges against PW1 although he exercised his right not to specify what those grudges were. 

15.  He told me that you are 32 years of age and you had made a torture claim which you had abandoned some three months ago.  You would eventually be deported back to Bangladesh.  Logically, this meant that you would never commit offences again in Hong Kong.  He told me that you had come via the mainland in February of 2006.  I was informed that you had initially been illegally detained by immigration officers for some 54 days which the department acknowledged.  You are pursuing a civil claim in respect of that matter. 

16.  When you arrived in Hong Kong, you were single. In Bangladesh, you have a mother who is sick and seven siblings.  2010, you married a Hong Kong permanent resident but that marriage, unfortunately, failed.  You are poorly educated, only to primary level.  In Bangladesh, you had been the owner of a small garment business.  Simply, your mitigation was as follows: your plea of guilty, your remorse, your intention to leave Hong Kong to care for your sick mother as soon as possible. 

17.  Mr Donald then referred me to three sentencing authorities.  The first was Attorney General v Yeung Kwong Chi [1988] 1 HKLR 266.  In that case, the Court of Appeal approved of 18 months’ immediate imprisonment for a man who agreed to act as a witness in a sham indecent assault to frame the victim for that offence of indecent assault.  Secondly, Attorney General v Chan Siu Wai [1997] 2 HKC 660.  In that case, the Court of Appeal approved of 15 months’ imprisonment for a young, inexperienced police constable who with two older, more experienced police constables forced a man to steal a shower cream in order to arrest him.  And, thirdly, HKSAR v Yung Wai Siu [2001] 1 HKLRD 277.  In that case, the Court of First Instance was dealing with a hawker who was conniving with a USD officer for another person to be arrested in her stead.  4 months’ imprisonment was upheld but that was considered to be on the low side.

18.  In concluding his submissions, Mr Donald suggested that a starting point of approximately 18 months should be adopted. He conceded that you had breached your suspended sentence and that would have to be served. 

19.  I turn now to the sentences.  With respect to Mr Donald who is a counsel of the utmost integrity and diligence, the sentencing authorities were of little assistance.  I am fully aware that they were submitted with the best of intentions.  However, I could not find that they assisted me to any extent at all in assessing the length of sentence as the facts of each case were so far removed from the present case as to render them irreconcilable. 

20.  The present scenario has to be considered as involving facts of a very high criminality indeed.  Basically, you, D2, were using D1 to pursue a course of vengeance against PW1 by alleging the act of rape which in itself attracts both a long prison sentence and, quite rightly, public condemnation.  It was a lie and a sham.  But matters did not stop there.  When PW1 was released on bail, the cudgel of false accusation was taken up again and another serious offence levelled against PW1.  The offences were planned, premeditated and extremely well-executed.

21.  The police officers in this case are to be congratulated and praised greatly for their persistence and endeavours to expose this web of lies woven by you, D1, on D2’s instructions.  I commend the investigating officers in the highest possible terms.  Put simply, had they not done so, PW1 could have lost his reputation forever and lost his liberty for many, many years.

22.  With the greatest of respect to Mr Donald, his submission that a starting point of about 18 months should be adopted is, in my opinion, totally misplaced.  This would fall far short of the gross criminality in these cases which are separately and together extremely serious examples of conspiracy to pervert the course of public justice. 

23.  The only common points of mitigation between you both are your pleas of guilty and that the false accusations failed, and again I repeat that the latter is purely fortuitous and down to very good police investigation. 

24.  D2, you are the ringleader and I will begin the sentencing process with you.  You were the architect of these conspiracies.  To attain or seek to attain your ends, you abused the ill-advised affection that D1 obviously felt for you.  Clearly, that affection was not reciprocated. Whilst you are not a man with a lengthy criminal record in Hong Kong, you are a man who has breached a suspended sentence to which I will refer later and a man who now accepts his presence to have been unauthorised, having resiled from your allegations of facing torture in your homeland.  Of course, the latter is not a matter of concern for this court.

25.  On your part, D2, we have an evil and reprehensible scheme using D1’s affections for you to exact vengeance and settle scores with PW1.  D1 was clearly beguiled by you.  She even offered PW1 sexual favours to establish the allegation of rape against him.  It was you, D2, who had the grudges against PW1.  You conceived the schemes for each offence and used D1.  It was only you that had anything to gain from these schemes.

26.  The second offence is an alarming escalation of your vendetta against PW1 conceived as you felt thwarted when PW1 was released.  The second false accusation was designed to force him back into custody and increase any prison sentence meted out.  These are extreme examples of conspiracy to pervert the course of public justice. 

27.  Your position, D2, is considerably different from that of D1, so I will sentence you first.  Stand up, please.  On each offence, I take as a starting point 4 years’ imprisonment.  Each will be reduced to 32 months for your plea of guilty.  The sentences will be served as follows, applying the principle of totality.  On the first offence, you will go to prison for 32 months.  On the second offence, you will go to prison for 32 months.  The second offence is a distinct offence designed to bolster the first.  Therefore, 10 months will be served consecutively and 22 months concurrently.  Additionally, the 2 months of the suspended sentence will be served consecutively and in full.  You will go to prison therefore for a total of 44 months which is 3 years and 8 months.  Please sit down. 

28.  D1, whilst I do confess to feeling some sympathy for you, I do note that you were a willing and active partner in D2’s evil schemes.  You were willing to seduce PW1 and to lie to the police for Charge 1.  You willingly went along with the escalation of the campaign against PW1 for Charge 2.  Love and beguilement may explain but not excuse what you intended to do and in fact succeeded to some extent.  It has never been suggested that PW1 had in any way harmed you prior to these false accusations. 

29.  However, compared to D2 and in general, there are points of cogent and proper mitigation.  These move you out of the extreme depth of D2’s criminality to some extent and allows me to impose a more lenient sentence.  First of all, the fact that D2 was the author and instigator of both these offences playing upon your feelings for him to suck you in.  It was he and he alone who stood to benefit from your unjust, false accusations, accusations that could have led to incarceration for a very long time and loss of reputation.  Clearly, D2 had a desperate craving for vengeance.

30.  On a personal level, I note that you are a lady of clear record with a son who needs your support in the Philippines.  You are a single parent, a widow.  It is also greatly to your credit and deserving recognition that at the time D2 was pleading not guilty, you gave a non-prejudicial statement and were willing to assist the Department of Justice by giving evidence at trial.  Whilst your resolve is untested, I deem you worthy of some benefit and give you the benefit of any doubt.  I am willing to assume that you would have made good your intentions and assume that you would have told the truth.  Indeed, this may have been a factor in D2’s decision to accept his responsibility and plead guilty.

31.  I also accept that you are now remorseful and appreciative of how serious your deeds were.  Taking all the factors into account, I take as a starting point on each charge a period of 3 years’ imprisonment reduced to 2 for your plea of guilty.  I apply the principle of totality and I make the same points I made to D2 in respect of the 2nd charge.  Therefore, on the 1st charge, you will go to prison for 2 years.  On the 2nd charge, you will go to prison for 2 years. 4 months of that will be consecutive and 20 months concurrent.  That is a total of 28 months.