R. v. TIN SAU KWONG

IN THE COURT OF APPEAL

1996, No. 621
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against the sentence of 5 1/2 years' imprisonment imposed upon him for being a party to a conspiracy to pervert the course of justice. He pleaded guilty to this offence on the basis of a summary of admitted facts which was agreed between his counsel and the prosecution. The applicant's plea of guilty came after numerous applications to the court and when it became apparent that the court would not accede to an application which was made for a stay of the proceedings.

2. It is necessary to consider the summary of admitted facts in some detail. The reason for this is that various contentions are advanced in the applicant's counsel's written submissions which in effect fall outside the facts which were agreed.

3. The particulars of the offence to which the applicant pleaded guilty were as follows:

"TIN Sau-kwong, between the 1st day of March 1994 and the 1st day of April 1995, in Hong Kong and elsewhere, conspired together with other persons, including CHEUNG Wai-ming, CHENG Hing, WONG Kwong-kai, CHENG Wui-yiu and LEE Yiu-man to, with intent to pervert the course of public justice, do an act or acts which had a tendency to pervert the course of public justice, namely prevent Tommy CHUI To-yan from assisting and co-operating with the Independent Commission Against Corruption in its investigation into corruption and cigarette smuggling involving HUNG Wing-wah and associated entities and persons and from being a witness in the trial of the said TIN Sau-kwong, CHONG Tsoi-jun and YEUNG Kam-fai in Hong Kong."

4. On 12 December 1994 the applicant together with Chong Tsoi-jun and Yeung Kam-fai were charged with various offences of smuggling, corruption and perverting the course of justice. On the following day bail was granted to the applicant. A specific condition was imposed that the applicant should not directly or indirectly interfere with any prosecution witnesses.

5. The principal prosecution witness was a Mr Tommy Chui. It was evident from the statements which the prosecution tendered to the defence that Tommy Chui had made statements implicating the applicant and others.

6. Details of the interference with Tommy Chui are particularised in the summary of admitted facts.

7. What emerges from these particulars is that the applicant together with others including 5 members of the Wo On Lok Triad Society from March 1994 to April 1995 did interfere with Tommy Chui in an endeavour to undermine the ICAC investigation into this case. They did this by pressuring, threatening and attempting to intimidate him with the object of preventing him from giving evidence in the preliminary inquiry and the trial.

8. Direct contact was established with Tommy Chui on 28 April 1994. In this connection it may be helpful to quote verbatim para 21 of the summary of admitted facts:

"21. In the course of this conversation the accused sought to "warn-off" and dissuade Tommy Chui from co-operating with the ICAC investigation. He made specific and numerous references to Tommy CHUI's health and that of his family. The accused concluded the conversation by saying that "both of us understood without being explicit". Annexed hereto is the transcript of the telephone conversation. (Annexure E)"

9. On 15 May 1994 the applicant and Mr Yeung an employee visited Mr Tommy Chui's sister and inquired after Tommy Chui's health. In this connection it should be added that a number of inquiries were made concerning Tommy Chui's health. In the context in which they were made these inquiries were redolent with menace. Three days later Mr Yeung contacted Tommy Chui's brother-in-law Mr Wong Ka-lik and specifically told him that if anything happened to Hung, one of the applicant's co-defendants, Tommy Chui would be in trouble.

10. Shortly after this the applicant arranged for Mr Wong Ka-lik to go to Singapore and see Tommy Chui. Mr Wong's instructions were to persuade Tommy Chui to:

(1) Instruct a lawyer to revoke the witness statements he had made.

(2) To leave Singapore and go to Canada and

(3) to return to Singapore after the case was over.

11. The applicant financed this mission to Singapore.

12. Mr Wong did as instructed and went to Singapore and saw Tommy Chui. Mr Tommy Chui however took Mr Wong to see Mr Ricky Yu an officer in ICAC.

13. A further indirect attempt was made to get Mr Wong to go to Singapore again but Mr Wong did not go on this second attempt.

14. Finally it was an admitted fact that five named men who were members of the Wo On Lok Triad Society were co-conspirators with the applicant: the object of the conspiracy being to prevent Tommy Chui from being a witness in the preliminary inquiry in the case against the applicant, Chong Tsoi-jun and Yeung Kam-fai.

15. We reject the submission made by Mr Sarony QC for the applicant that we should disregard the triad element in this case as there was no question of the applicant being directly involved in triad activities. It is quite clear from the agreed summary of facts when read as a whole that the applicant's triad affiliations were a relevant factor in this conspiracy.

16. As can be seen from this short summary of the facts this case could be described as one of the worst cases of its kind. In this connection assistance can be derived from the case of R. v. Ho Sze Ching (unreported) being Crim. App. 588/96. This case is authority for the proposition that "worst cases fall within a broad band".

17. Bokhary JA in his judgment in that case referred to a passage from the judgment of Lawton LJ at p267 of R. v. Ambler [1976] Crim. LR 266:

"... it is to be borne in mind that when judges are asking themselves whether they should pass the maximum sentence, they should not use their imaginations to conjure up unlikely worst possible kinds of case. What they should consider is the worst type of offence which comes before the court and ask themselves whether the particular case they are dealing with comes within the broad band of that type".

18. Yeung J adopted a starting point near the maximum sentence which can be imposed in a case of this nature. His starting point was six years. He was not prepared to grant the applicant a full discount for his guilty plea. One of the main reasons he gave for this was the lack of remorse on the applicant's part.

19. The 1st ground of appeal complains that the sentence imposed was manifestly excessive. In the written submissions in support of this ground Mr Sarony QC complains that the judge attached weight to the triad associations of the applicant. Having regard to the specific admissions which are made in this connection there is no justification whatever for this complaint. The judge was right to emphasise the applicant's triad affiliations as this was an important part of the conspiracy.

20. As stated earlier this conspiracy was within the scope of the worst type of case. By no means can it be contended that the judge adopted too high a starting point.

21. Indeed we are of the opinion that the judge did not adopt a sufficiently high starting point. In his reasons for sentence Yeung J refers to the fact that the maximum sentence which can be imposed for this offence is 7 years' imprisonment and at p178 of the record he goes on to express the opinion that this maximum is far too low for an offence of this nature.

22. Having regard to the fact that the judge was of this view we can see no reason why he should not have adopted 7 years as the appropriate starting point as this case certainly came within the broad band of cases which could be described as the worst type of offence.

23. It should be added that if in the opinion of the court the maximum sentence is not too low it would not necessarily be the case that it would be always compulsory to adopt the maximum sentence as the starting point even though it may be the worst possible type of case. That would take matters beyond certainty and into inflexibility.

24. Ground 2 refers to the judge attaching importance to the triad association. This complaint has already been dealt with.

25. Ground 3. Here it is complained that the judge misdirected himself when holding that the applicant had committed the offence at a time when he had already been charged with a series of offences. It is difficult to see how the judge could have performed his duties without having regard to the fact that the applicant had been charged with a series of offences. The charge he pleaded guilty to was a conspiracy to pervert the course of justice namely attempting to prevent Tommy Chui from testifying against him. It was inevitable that the existence of these other charges would have been known to the judge and have been a factor coming within the four corners of the admitted facts.

26. Ground 4 complains that the sentence was excessive when viewed against Court of Appeal guidelines.

27. The problem with this ground is that very little guidance can be obtained from other cases as the facts in each case differ significantly. This was undoubtedly an extremely bad case. What emerges from the statements which were made by Tommy Chui is that he was claiming that the applicant was the triad protector of a multi-million dollar cigarette smuggling syndicate and that massive bribes had been offered in the past.

28. It cannot be said that in the overall circumstances of the case that the sentence imposed was contrary to the guidelines normally adopted.

29. Ground 5 complains that the applicant should have been credited with the conventional discount of between 25% - 30%.

30. Normally a discount of this order would be given. However the applicant only pleaded guilty after exhausting nearly all of the processes available to him. Before doing so he had chosen to make serious and unfounded allegations against a number of law enforcement officers during the course of the proceedings.

31. What is perhaps even more significant than this is the obvious lack of remorse which was commented upon by the judge.

32. When a party does plead guilty a wide discretion is reposed in a judge to determine the extent of the discount. In a case such as the present one there were for the reasons given good grounds not to extend a large discount to the applicant. There is little merit in this ground.

33. Ground 6. Reference was made by the judge to plea bargaining.

34. If the judge's remarks are read in their correct context there is nothing objectionable in what was said. There is nothing in this ground.

35. What remains at the end of this application is that this was a most serious case of its type. There were very few if any compelling mitigating circumstances and there were good reasons why a substantial discount should not have been granted to this applicant.

36. As we have already indicated we consider that the judge should have adopted 7 years as his starting point. We are empowered by s83I of the Criminal Procedure Ordinance Cap 221 to substitute a different sentence to the one imposed by the judge where this appears to be appropriate. We consider that the judge was right to give the discount of 6 months for the plea and accordingly we order that the original sentence of 5 1/2 years' imprisonment be quashed and a sentence of 6 1/2 years' imprisonment be imposed in substitution for it.