HKSAR v. CHEUNG SING HOI

HCMA 1334/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1334 OF 2001

(ON APPEAL FROM TMCC 3038/2001)

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J U D G M E N T

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1. The appellant in this case was charged with one count of "Attempting to mislead an officer by giving false information," contrary to section 13B(b) of the Independent Commission Against Corruption Ordinance Cap.204 and section 159G of the Crimes Ordinance Cap.200 Laws in Hong Kong.

2. The Appellant pleaded guilty before the learned Magistrate and was sentenced by him to 3 months imprisonment. The Appellant today appeals against that sentence on the ground that it is manifestly excessive, and that the learned Magistrate should have explored other sentencing options as this is the Appellant's first offence.

3. The fact of this case is quite repugnant because the Appellant made a false report to the ICAC, against two of his superiors at work, that they had solicited money from him for approving his application to take his leave. He made the report on 30 October 2000 and repeated the false allegation in a written statement on 7 November 2000.

4. As a result of his complaint, his two superiors, were asked to attend at the offices of the ICAC where they were interviewed. Whilst it is true that it did not take long for the ICAC to clear up the matter and decide that this was a false report, and the Appellant made a full confession upon his arrest, nevertheless, during that short period of time, it must have been a most traumatic experience for the two supervisors involved. This type of allegations, as the Magistrate pointed out, are easy to make and often may be hard to disprove. And it is due to the astuteness of the investigator that this matter did not drag out as long as it may have done.

5. What makes this case particularly repugnant, is that the Appellant did this out of a desire for personal revenge, against his superiors for their criticism of his work.

6. The Appellant is a 43 year-old married and has a daughter. He should know better as he is not 16 or 18 years old and may not have realised the full implication of what he did. But being a 43 year-old man, he should have realised that what he did would cause a lot of stress and anxiety for the two victims involved.

7. Not only that, his actions also wasted the time of the ICAC in having to listen to his false allegation and having to investigate and clear up the matter. So the learned trial Magistrate, taking all these into account together with the background of the Appellant, decided that this is a sort of case that calls for a deterrent sentence, and I totally agree with him.

8. As the maximum sentence for this sort of offence is 12 months, he then took 6-months' imprisonment as a starting point, and reduced the sentence on account of the plea of guilty and the Appellant is clear record and gave the Appellant a 50% discount, which I consider to be extremely generous.

9. In these circumstances, whilst it is true that the court would hesitate sending someone with a clear record to prison for most offences, this is the type of offence where a clear message should be sent out to those who are thinking of making false allegations that they cannot get away with them. This offence is serious and I would say there should be no doubt in people's mind that when false allegations are made, either to the police or to the ICAC, that deterrent sentences, normally sentences of imprisonment, would be justified.

10. So I can see no merit in this appeal because the sentence is totally appropriate and justified and so the appeal against sentence is dismissed. Whilst the learned Magistrate had considered suspending the sentence he concluded that there were no grounds for doing so. I agree with him. As far as the letters produced on this appeal are concerned, they do not assist.