HKSAR v. MAKHSSIAN, TRAJAN VAHE

HCMA1219/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1219 OF 2002

(On appeal from ESCC 3075 of 2002)

---------------------------

------------------------

-----------------------

J U D G M E N T

-----------------------

1. This is an appeal against conviction and sentence.

2. The appellant was convicted by a magistrate of an offence of doing an act tending and intended to pervert the course of public justice, contrary to common law (being the 1st charged offence) and of an offence of resisting a police officer in the due execution of his duty, contrary to section 36(b) of the offences against the Person Ordinance, Cap.212 (being the 2nd charged offence).

3. In respect of the 1st charged offence, the appellant was sentenced to 12 months' imprisonment. In respect of the 2nd charged offence, he was sentenced to three months' imprisonment, two months to be served consecutively. That resulted in a totality of sentence of 14 months' imprisonment.

Appeal against conviction

4. The facts of the offences as found by the magistrate were as follows. At the time of the offences, the appellant had previously been arrested and released on bail for a Blackmail offence, in respect of which he was suspected of having demanded money in the sum of about $100,000 from a man he thought was having a relationship with his, the appellant's, wife and whom he thought to be the cause of their earlier divorce. After the demands relating to that offence had taken place, there had been a number of follow-up calls from a mobile telephone whereby the caller wished to know what the victim's response was to the demands which had been made.

5. On the date relating to the present offences, when the appellant was answering bail in respect of the Blackmail offence he was accompanied to the police station by a young woman, Miss Lau, who became DW2 in the present proceedings.

6. The police officer to whom the appellant reported, PW1, who was the officer investigating the Blackmail case, realized from Miss Lau's particulars that she was the person in whose name the mobile phone which had been used for the follow-up calls in the Blackmail case had been registered.

7. PW1 then told DW2 that he wished to interview her. A conversation then began between PW1 and DW2 preliminary to any interview. This conversation took place in the presence of the appellant and in a public area of the police station. DW2 apparently wanted to know from PW1 something about the Blackmail case. PW1 wished to know if she was prepared to make a witness statement. The appellant intervened and put his hand over DW2's mouth and told her not to say anything. DW2 brushed his hand away and continued talking, and this happened on at least two occasions.

8. The appellant then went into the office of PW1's superior, PW2, a senior inspector, and told him that he would not allow DW2 to give a statement. PW1 came into PW2's office and PW2 told PW1 to arrest the appellant for attempting to pervert the course of justice. Before anything was done in that regard, the appellant then ran back to DW2 and took her hand and rushed with her towards the staircase leading to the exit of the police station. PW1 chased him. He caught up with the appellant and grabbed him. They struggled when PW1 tried to handcuff the appellant. Other officers, including PW2, arrived and the appellant was subdued and taken back to PW1's general office. Another attempt was made to handcuff him. The appellant struggled and successfully resisted being handcuffed and succeeded in breaking free from the officers and again attempted to run out of the station. PW1 again chased and caught the appellant, and with the help of more officers the appellant was subdued and eventually handcuffed. PW1 suffered an abrasion during the course of all this.

9. The grounds of appeal advanced on behalf of the appellant by Mr Tolliday-Wright can be summarized as follows :

(1) Defence counsel was wrongly prevented at trial from questioning prosecution and defence witnesses.

(2) The magistrate interfered with the conduct of the trial so as to prevent the appellant having a fair trial.

(3) There was a material irregularity in the course of the trial when PW2, during his cross-examination by defence counsel, provided the prosecutor with copies of his notebook entries relating to the case.

(4) There was such delay in the prosecution of the appellant for the present offences that he was prevented from having a fair trial.

(5) The magistrate failed to evaluate the evidence properly.

(6) The facts found by the magistrate could not in law amount to the offence of doing an act tending and intended to pervert the course of justice.

10. The appellant's grounds of appeal are directed at, primarily, the 1st charged offence. The complaint so far as the 2nd charged offence is concerned, as I understand it from Mr Tolliday-Wright, is simply that the appellant was wrongly arrested in respect of the 1st charged offence as the appellant had not committed that offence as a matter of law, and, accordingly, the police had no reasonable basis to suspect him of that offence and, therefore, the police were not acting in the due execution of their duty so far as the events of the 2nd charged offence were concerned. All this being so, says Mr Tolliday-Wright, the appellant should not have been convicted of the offence of resisting a police officer in the due execution of his duty.

11. I will deal with the grounds of appeal in turn.

12. So far as the 1st ground of appeal is concerned, Mr Tolliday-Wright, who was not trial counsel, firstly makes complaint of the magistrate preventing defence counsel from cross-examining PW2 about the appellant being detained in the station cells and not being allowed outside contact. Mr Tolliday-Wright now says this evidence was plainly relevant as it went to the credibility of the witness PW2. He says trial counsel was entitled to explore whether PW2 was motivated by some dislike of or animus towards the appellant in treating him more harshly than he deserved.

13. The relevant part of the transcript is as follows :

"Q. Now, later on while the defendant was in the cells of the Wan Chai Police Station, did you go into the police cell and take away his mobile telephone?

A. When I saw PW1 and the others had subdued the defendant on the floor I could see that the mobile phone was lying on the floor. I instructed PW1 to seize the defendant's mobile phone as exhibit and PW1 had acted upon my instructions.

Q. Did you hear the defendant request to see a lawyer?

A. I didn't hear that.

Q. And did you give the order to the officer in charge of the cells that the defendant was not allowed to make contact with anybody?

COURT: Well, is there a cautioned statement involved?

MR SPICER: Sorry?

COURT: Is there a cautioned statement involved?

MR SPICER: I don't think so.

COURT: So what is the relevance of these questions?

MR SPICER: I'm putting my case. If my client gives evidence and this comes up for the first time, you may say that it wasn't put.

COURT: Why would he be giving evidence about things that happened in the cell when there's no cautioned statement?

MR SPICER: Well, if you...

COURT: This is not a rehearsal f the CAPO complaint.

MR SPICER: If you don't wish for me to proceed, my Lady, I'm grateful for your interruption and I won't proceed."

14. It seems to me plain from that excerpt that the magistrate was concerned simply as to the relevance of questions concerning the appellant's being denied outside contact when there was no apparent issue to which that state of affairs related. She was in those circumstances entitled to ask why the questions of counsel were relevant. It is important to note that counsel gave no reason at that time as to why his line of cross-examination was in fact relevant. He simply said that he was putting the questions because they were in accordance with his instructions. That was understandably not enough to satisfy the magistrate's concerns.

15. The second thing of importance to note is that even so, the magistrate did not expressly prevent counsel from proceeding with his line of cross-examination. She made no ruling. Counsel simply chose not to proceed.

16. No complaint can be made of the magistrate's approach to this matter. As I say, it is now before me argued by Mr Tolliday-Wright, that the line of cross-examination embarked upon by counsel may have been relevant. With respect, it is of little merit on appeal, to now put forward a rationale of some potential relevance for a line of questions when it was not advanced before the trial magistrate as a proper basis for those questions. There is nothing in this complaint.

17. The appellant complains also that trial counsel was further prevented from questioning PW2 about the police having contributed to the occurrence of the present offences by PW1 trying to interview DW2 in the presence of the appellant. Mr Tolliday-Wright, before me, argues that knowing that the appellant was somewhat excitable, for PW1 to speak to the appellant's girlfriend, DW2, in his presence about the Blackmail case was a significant provocation and contributed to the appellant's subsequent behaviour.

18. The magistrate indicated to counsel at the time of her first interrupting him about this matter that she did not think the questioning of PW2 about the appellant being provoked into his actions because of PW1 speaking to DW2 in the appellant's presence was relevant. But in any event, she allowed questioning on that subject to continue for some time thereafter. When some minutes later, the magistrate intervened again, the trial counsel said he did not propose to take the matter further as he had made his point. Accordingly, the magistrate at no stage ruled the line of questioning could not proceed. All she had done was ask counsel to justify it. Again, she was entitled to ask counsel to explain the line of questioning that he had adopted. Provocation is not a defence to the present offences. If trial counsel wished to gather some ammunition for any future submissions in mitigation, he had done so by the time his questions in this regard had ceased. There was no prejudice of any substance to his case so far as that was concerned. Accordingly, there is nothing in this complaint.

19. The final substantial complaint by the appellant as to the trial magistrate wrongly preventing the questioning of witnesses related to the magistrate's stopping the appellant's counsel re-examining DW2, Miss Lau, on the whole of her witness statement. Trial counsel had asserted that he was entitled to do so because the prosecution had cross-examined DW2 on specific matters contained in that statement, relating primarily to what was said by the appellant at the time he placed his hands over the mouth of DW2, which contradicted what the witness had said in her evidence-in-chief. The statement itself was comprehensive, extending over 12 pages and dealing with a number of matters other than those cross-examined on.

20. The appellant's counsel in re-examination tried to adduce in evidence the whole of the witness statement of DW2, including therefore the other unconnected parts of the contents of the statement.

21. The court then intervened. The transcript records that intervention as follows :

"COURT: How does this arise out of cross-examination?

MR SPICER: May it please you, my Lady. It arises in the following way. Prosecution have used this witness' statement, PW2's, to attack her credibility. I'm entitled to re-examine on the whole statement and I'm not confined only to the issues which the prosecution have raised, and I choose...

COURT: Is that right?

MR SPICER: Absolutely. You put in...

COURT: Can you send me some authorities?

...

COURT: Were you trying to put it in context?

MR SPICER: Naturally.

COURT: You were referring to a completely different matters.

MR SPICER: I was referring to the same statement. That's the first point.

COURT: Yes, same statement.

MR SPICER: And I was referring to a different matter but obviously I was going to put in the statement.

COURT: No, this is restricted to putting the matter in context, the matter which was cross-examined in context, not to establish some kind of previous consistent statement.

MR SPICER: My Lady, are you ruling against me that I may not put in her witness statement in the light of those two authorities before you?

COURT: Yes."

22. It is plain that the magistrate effectively ruled that the cross-examination by the prosecution of DW2 on limited aspects of her witness statement did not allow automatic re-examination of her on the whole of the statement, or allow the whole of the statement to be produced. That ruling is plainly correct. It is also obvious that the learned magistrate indicated that she would allow re-examination of the witness on her statement so as to put in context the contents of the statement that she had been cross-examined upon. That is also plainly a correct approach. There is nothing in this complaint.

23. A remaining complaint made by the appellant under his 1st ground of appeal is that the existence of a record of interview made by DW2 in respect of the Blackmail case was never brought to the attention of defence counsel in the present case. That complaint has simply not been made out before me. Not only is defence counsel in the trial apparently unable to say whether or not there was non-disclosure of that record of interview, it appears from the transcript of DW2's evidence-in-chief that she did refer to herself making two statements to the police; her witness statement in the present case and one other. DW2 apparently, in fact, only made two statements, that is, the witness statement and the record of interview complained of. This was not taken further by defence counsel. DW2 was his witness. Presumably he was aware of what she was saying. Any possible non-disclosure of that document is no more than speculation as presented before me. In any event, however, no prejudice of any substance has been demonstrated even if there was non-disclosure as put forward by Mr Tolliday-Wright. There is nothing in this complaint, nor is there any merit in the 1st ground of appeal.

24. The next ground of appeal is that the magistrate wrongly intervened and interfered with the conduct of the trial to such an extent that the appellant's ability to present his case was prejudiced.

25. Mr Tolliday-Wright has taken me through his "best" examples of this complaint as set out in the transcript. With respect, each and every one of those examples demonstrates that the magistrate's interventions were perfectly reasonable and proper. Indeed, the complained of interventions, in the main, were directed at assisting the appellant or clarifying what the prosecution case was. Other complained of interventions were completely unremarkable, in that the magistrate required questions to be split into subsidiary parts and prevented questions in examination-in-chief of witnesses being put in a leading form.

26. It is true that the interventions by the magistrate as to the form of questioning, which occurred on a mere handful of occasions in any event, were not prompted by any objection from the bar table. But a court is entitled to take it upon itself to require that the questioning of witnesses before it be conducted on a proper basis. The suggestion that the magistrate in the present case interfered unreasonably or improperly with the presentation of the appellant's case so as to prejudice the presentation of that case or so as to display some apparent ammosity to that case is completely unfounded and is completely without merit. There is no suggestion at all on my reading of the transcript that at any stage the magistrate descended into the arena in the manner disapproved of in Jones v. The National Coal Board (1957) 2 QB 55.

27. The third ground of appeal is the appellant's complaint concerning PW2 providing a copy of his notebook entries relating to this case to the prosecution during the lunch adjournment and while PW2 was still subject to cross-examination.

28. PW2's evidence in this regard, when he was during the continuation of cross-examination questioned about this matter upon the resumption of the trial, was that he had done so merely because he had realized he had not provided copies of his notebook entries to the prosecution as normally he would be required to do for the purposes of a trial. It was common ground that PW2 had made multiple copies of his notebook. He said he did that so copies could also be provided to the defence if necessary. It was common ground that he had handed over the notebook copies to the prosecution in court before the resumption of his evidence in the plain view of the persons present, including the appellant.

29. Further, no specific matter was ever put, to either PW2 in cross-examination or to the court in the course of submissions, as to how the action of PW2 in this regard in any sensible way either assisted the prosecution or prejudiced the appellant's case. It is true that PW2 should not have provided of his own initiative copies of his notebook to the prosecution once he had commenced his evidence. There should ideally be no contact between a witness in the course of his evidence and any party to the proceedings without the leave of the court.

30. But in the present case, the facts of the incident were fully known to the appellant, it having occurred in court in plain view, and was subsequently ventilated before the magistrate in further cross-examination of PW2.

31. As I say, no prejudice was demonstrated to the appellant's case, either before the magistrate or before me, arising from this incident. It cannot be said to have resulted in an unfair trial. The magistrate took the matter carefully into account when she considered the credibility of PW2. She said in her Statement of Findings :

"... PW2 had finished his evidence in chief and was in the midst of his cross examination when the document was handed over to the prosecutor. No allegations of recent fabrication have been made against PW2. The notebook was basically useless to the prosecution by that stage. On the other hand, it may well be useful to the Appellant. Further, if PW2 had anything to hide, he would not have handed the copy to the prosecutor in the presence of the Appellant."

32. The magistrate found, having given those perfectly proper reasons, that this incident neither prejudiced the appellant's case nor diminished the credibility of PW2. There is nothing in this ground of appeal.

33. The next ground of appeal advanced on behalf of the appellant is that because of the delay in the prosecution of the appellant for these offences, he was prejudiced in his defence. The particular complaint advanced by Mr Tolliday-Wright is that the present offences should have been tried together with the original Blackmail offences, as they rose out of the same facts. If the cases had been tried together, argues Mr Tolliday-Wright, then the appellant could have relied on matters so far as the present charged offences are concerned, which arose in the course of the evidence in the Blackmail case, to assist him in the conduct of his defence in the present case. Those matters relied upon by Mr Tolliday-Wright are, inter alia, the benefit of PW1 and PW2's cross-examination in the Blackmail case, the fact that the appellant's visa status, evidence of which was given apparently in the Blackmail case, was a matter which concerned him and contributed to his somewhat irrational behaviour in the present case and other general matters which arose in evidence during the Blackmail trial.

34. Firstly, it should be noted that at no time was there made any application by the appellant to have the present case stayed on this, or any, basis before the trial magistrate. By itself in the normal course of events, in my view, that would be fatal to this ground of appeal. But in any event, it seems to me that there was good reason for the prosecuting authorities to try separately the present case. It did not arise directly out of the same facts as the Blackmail case, although the existence of that case and the investigation into it was the background against which the present offences were committed. In my judgment the nexus between the two cases was marginal, both as to factual commonality and as to time. The present case occurred three months after the facts establishing the Blackmail offence had occurred.

35. Further, whilst it is true that the indictment rules are directed at allowing the joinder of cases in circumstances where there is sufficient nexus, that does not mean, however, that if the prosecution elects to try such cases separately that the accused can necessarily complain about that decision. It remains a discretion vested in the prosecution. The appellant must show some prejudice to his defence before any such complaint could be said to be one of substance so as to allow a court to interfere with the prosecution's exercise of its discretion in that regard.

36. In the present case, no such prejudice has been demonstrated, in my view, by Mr Tolliday-Wright. Those matters he relies upon as causing prejudice to the appellant were evidential matters which, so far as I can see, could have been raised afresh in the present trial if trial counsel had so wished. But more fatal to Mr Tolliday-Wright's argument in this regard is the very basic reality that if the evidence concerning the appellant's attempt to pervert the course of justice (and presumably the acts going to his resisting arrest) had in fact been raised in the Blackmail trial, as they would have been if the trials had been heard together, that would have been, one would have thought, very prejudicial to his interests in that trial. It may well have been of considerable probative value to the prosecution, so far as the appellant's attempt to silence DW2 were concerned, in establishing his guilt in the Blackmail case. I do not think the appellant was evidentially prejudiced by the present matters being prosecuted separately from the Blackmail case.

37. Mr Tolliday-Wright complains also that the appellant was prejudiced by the delay in prosecuting the appellant in respect of the present matters in breach of his rights at common law and, as argued before me, pursuant to Article 11(2)(a) and (c) of the Bill of Rights Ordinance, Cap.383.

38. The appellant was charged on 19 October 2002 with the present offences, after the conclusion of the Blackmail case. His trial for the present offences commenced on 20 November 2002, some six months after the commission of the offences in May 2002. I do not think the time delay of six months between the date of the present offences and the commencement of their trial can even remotely be said to have prejudiced the appellant's defence. Nothing was suggested to me, such as the loss of witnesses or evidence of assistance to the appellant during that interim period, which could have formed the basis of any stay. Again, I repeat, no such application was made to the trial magistrate and again, this matter was advanced on appeal for the first time. In any event, the complaint of any delay, so far as the appellant's trial is concerned in the present case, could in no way be regarded as amounting to the "exceptional circumstances" referred to in Attorney-General's Reference, No.1 of 1990, (1992) QB 630; see also HKSAR v. Li Ming Tai [2001] 1 HKLRD 599. As recently affirmed again in the latter case, there is little, if any, difference between the common law in this regard and the rights conferred by Article 11(2)(c) of the Bill of Rights Ordinance.

39. I am satisfied that the six-month delay between the commission of the offences and the appellant's trial, given the reason of the intervening trial of the Blackmail offence and the lack of any apparent prejudice to the appellant, cannot be said to have prejudiced his right to a fair trial, either at common law or pursuant to the Bill of Rights Ordinance.

40. A separate but related complaint of Mr Tolliday-Wright in this regard, as I understand him, is that the appellant's being charged in October 2002, some five months after the events of the offences, was itself in breach of Article 11(2)(c) of the Bill of Rights Ordinance. That article merely requires a charged person "be informed promptly and in detail of the nature and cause of the charge against him". It has never been suggested that at the time he was charged the appellant was not provided with adequate particulars of the offences alleged against him. That article cannot be read to say that a person is required to be charged immediately or shortly after an offence has been committed, as I understand Mr Tolliday-Wright to be suggesting. In many cases that would be an impossible requirement. The article merely requires that when a person is charged, he then be given sufficient information so he is aware of what is alleged against him.

41. In the present case, so far as the papers before me reveal, that was properly done. There is nothing in this ground of appeal.

42. The penultimate ground of appeal relied upon by the appellant is that the magistrate failed to properly evaluate and resolve inconsistencies in the evidence of PW1 and PW2. The only aspects of this general ground of appeal substantially relied upon in argument before me concerned, firstly, PW1's evidence as to whether he had given DW2 a choice in making a witness statement.

43. In evidence at one stage, PW1 had said that he had told DW2 "she must make a witness statement". It is true though that from the transcript of his evidence he had, with the exception of that particular occasion, otherwise said he had asked DW2 whether she was prepared to make a witness statement, and that if she refused to make a witness statement, she had to sign a declaration of some sort to that effect. In re-examination, he was asked again about this apparent inconsistency in his evidence as follows :

"Q. Constable, under cross-examination, you also said that you gave Miss Lau a choice whether to make a statement today or to make on another day.

A. That's correct, and I also told her that she had the right not to give a statement.

Q. Then why did you tell her, 'Then you must make a statement'?

A. Well, by that sentence 'you must give a statement,' well, I was referring to this situation in the event that she refused to give a statement. Then, well, all these details would have to be reduced into writing. That is the time I had met her and made the request to her and asking her to give a statement and the fact that she refused to give a statement.

Q. And did you tell Miss Lau so?

A. Yes."

44. In her Statement of Findings, the magistrate dealt with this apparent contradiction which had arisen in PW1's evidence. She said :

"... [The appellant's counsel] submitted that PW1 was not credible. He argued that PW1 had told me in evidence that he had told DW2 that she 'must make a witness statement'. Counsel admitted that according to DW2's witness statement, PW1 had given her a choice as to whether she wished to make a statement and the time for making the statement. However, he submitted that PW1 had put words into DW2's mouth when he eventually took a witness statement from her. PW1 did not give DW2 any choice prior to the incident.

I wholly disagree with that submission. PW1 had made it clear throughout his evidence that he had given DW2 a choice as to whether she would give a witness statement. He also made it clear that DW2 was given a choice as to whether she wanted to make a statement immediately or make an appointment. However, if DW2 refused to make a statement, her refusal would also have to be recorded in writing. PW1's evidence in this respect was wholly consistent with PW2's evidence. It was also wholly consistent with DW2's witness statement. DW2 had confirmed in evidence that that part of her witness statement evidence was true and correct. I found absolutely no merit in this argument."

45. The magistrate clearly and concisely dealt with this apparent inconsistency in PW1's evidence. She accepted PW1's explanation of it after considering that both PW2's evidence and also DW2's evidence supported what PW1 said in this regard.

46. Other less important inconsistencies in the evidence of PW1 and PW2 were also properly dealt with by the magistrate. In dealing with the remaining inconsistencies generally, in the evidence of PW1 and PW2, she said in her Statement of Findings :

".... According to PW1 and PW2's description, the situation was very chaotic at the time. PW1 was dealing with both the Appellant and DW2. A lot of things were said and done and PW1 had no opportunity to make a contemporaneous record. The incident occurred on 2 May 2000. Six months have elapsed between the incident and the trial. It was wholly unrealistic to expect PW1 and PW2 to recall every single small detail. I did not find any of the inconsistencies to affect the credibility of PW1 or PW2."

47. That is a perfectly reasonable conclusion to arrive at. It cannot be criticized. There is no merit in this ground of appeal.

48. Finally, Mr Tolliday-Wright says that even on the facts found to be proven by the magistrate, the offence of perverting the course of justice could not be made out.

49. The facts found by the magistrate were that firstly, DW2 had indicated to PW1 that she might be prepared to or was considering giving a witness statement. Secondly, that the appellant had tried to stop DW2 from talking to PW1 about the Blackmail case by putting his hand over her mouth and telling her to say nothing. The appellant had told PW2 he did not wish DW2 to provide the statement because that would be to his, the appellant's, disadvantage and that he, the appellant, had tried to stop DW2 from talking for his own protection.

50. The common law offence of perverting the course of justice is made out when it is proven the defendant performed an act which had a tendency to and was intended to interfere with the course of public justice : R. v. Lalani (1999) 1 Cr. A. R.481.

51. An act directed towards preventing a witness providing information to the police during the course of an investigation is capable of satisfying this criterion and it is sufficient even if the course of justice has arrived only at the stage of police investigations, and that the act involved only might interfere with those investigations : R. v. Selvage & Morgan (1982) QB 372, R. v. Rafique (1993) QB 843. The facts found by the magistrate in the present were sufficient to prove the offence, once accepted by her.

52. Further, so far as the second charged offence of resisting a police officer in the execution of his duty, namely arresting the appellant, is concerned, the argument advanced by Mr Tolliday-Wright that the appellant's arrest was only proper if the first charged offence was properly made out at trial, and if it were not, that a person could resist any such arrest with impunity is plainly incorrect.

53. The right and duty of a police officer acting in the proper execution of his duty is to arrest persons he reasonably suspects of having committed an offence. Whether or not the arrested person is subsequently convicted of that offence does not add to or detract from the propriety of the arrest. Further, in the present case, there was ample reasonable cause provided to PW1 to arrest the appellant for the first charged offence given the facts found proven by the magistrate. There is nothing in this aspect of the grounds advanced on behalf of the appellant.

54. For the above reasons the appellant's appeals against his convictions are dismissed.

Appeal against sentence

55. The appellant is a 25 year-old resident of Hong Kong who comes originally from the Lebanon.

56. At the conclusion of the appeal hearing, I set aside the sentences imposed by the magistrate and substituted the following sentences; so far as the 1st charged offence of perverting the course of justice is concerned, I imposed a sentence of two months' imprisonment. So far as the 2nd charged offence of resisting an officer in the execution of his duty is concerned, I again imposed a sentence of two months' imprisonment. I ordered both sentences to run concurrently, except for one month. That resulted in a totality of sentence of three months' imprisonment.

57. I now give reasons for allowing, to that extent, the appeal against sentence.

58. It is true, as the magistrate said, that perverting the course of justice is a serious offence. But there can be no tariff or guideline sentence for such offences as the facts of each can be very different. The evil of the offence is that it undermines and warps the proper course of justice. One of its fundamental indicia is that it does so, or persons committing the offence try to do so, in undetectable ways.

59. Another usual characteristic of the offence is that it is generally a cynical and calculated offence, in that it is usually planned and premeditated, and often involves calculated corruption and a co-operation of more than one person. So, it is a serious offence and often difficult to detect in its usual manifestations.

60. But in the present case, not only was the act or acts of the appellant in putting his hand over the mouth of the potential witness, DW2, apparently a spontaneous and unplanned action by him arising from a stupid and perhaps emotional response to the particular circumstances before him, it was, importantly and very unusually for this category of offence, carried out in the plain view of the police. It was committed in the most transparent of ways. There was never any hope that the offence would go undetected, nor was there ever any realistic chance of the appellant benefiting from his actions as he hoped to. All in all the appellant's actions could better be said to be childish and stupid rather than cynical, and plainly arose from what could be said to be a simple lack of personal control or forethought rather than any premeditated plan to undermine the police case against him so far as the Blackmail investigation was concerned.

61. In short, the usual indicia of this offence were completely absent. I do not think this was given proper weight by the magistrate in her reasons for sentencing the appellant.

62. Further, regarding the offence of resisting arrest, it was never suggested that the appellant struck or tried to injure any officer. PW1 sustained an abrasion. The appellant's struggle was apparently in large part devoted to avoiding being handcuffed by way of, amongst other things, sitting on his own hands. Any such struggle, nevertheless, can warrant an immediate custodial sentence. But the lesser sentence of two months' imprisonment imposed by me in substitution for that of the three months' sentence originally imposed by the magistrate was, in my view, necessary to achieve the proper totality of sentence in this case. That totality of three months' imprisonment achieved the immediate release of the appellant.