HKSAR v. TSE LIN SOONG

HCMA 995/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 995 OF 1999

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J U D G M E N T

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1. The Appellant, Tse Lin Soong, was charged with one count of conspiracy to pervert the course of public justice, contrary to the common law and sections 159A and 159C of the Crime Ordinance, Cap.200, Laws of Hong Kong.

2. The particulars of offence stated that the Appellant, on or about 27th April 1999 in Hong Kong, conspired together with Leung Suet May to pervert the course of public justice by agreeing, with intent to pervert the course of public justice, to do an act which had a tendency to pervert the course of public justice, namely, to prevent the prosecution of the said Tse Lin Soong for an offence of causing obstruction in a public place by falsely representing that the said Leung Suet May was responsible for the offence.

3. The Appellant appeared before the Eastern Magistracy and pleaded guilty to the offence. After obtaining a background report and having considered the mitigation, the learned Magistrate imposed a term of six months on the charge.

4. The Summary of Facts, which were agreed by the Appellant, stated the following. The Appellant was the proprietress and operator of a fruit stall located at G/F, No.2 Matheson Street, Causeway Bay, Hong Kong. In the morning of 27th April 1999, officers from the Urban Services Department ("USD") approached the Appellant, pointing out to her that her stall had caused some obstruction. The officers asked the Appellant to put forward someone to be prosecuted for the offence. At the time, a female person, known to the Appellant as "Sam Ku" (三姑), happened to walk by and she made the suggestion that she would go with the officers. The Appellant agreed to the suggestion and the USD officers did not object. They took Sam Ku instead of the Appellant. Later, Sam Ku was charged with the offence of causing obstruction in a public place, contrary to s.4A of the Summary Offences Ordinance, Cap.228.

5. Mr Paul Tong, Counsel for the Appellant, had put forward two grounds of appeal regarding the sentence. The first ground was that while the learned Magistrate was right in imposing a custodial sentence, he should have suspended the term in view of the special and exceptional circumstances. The second ground was that in all the circumstances, the learned Magistrate should not have imposed a punitive sentence which was manifestly excessive and severe.

6. In relation to the first ground, counsel sought to rely on the following factors as constituting special and exceptional circumstances :

(1) the Appellant's age and the fact that she had a clear record;

(2) the Appellant promptly admitted the offence;

(3) she was to some extent being encouraged by the USD officers to commit the offence;

(4) the degree of the criminality was low;

(5) she had assisted the ICAC officers by giving a witness statement which had led to the arrest of some USD officers;

(6) the Appellant is now suffering from the condition of severe emotional stress; and

(7) it is unlikely that she would commit the same kind of offence in the future.

7. Regarding the statement given by the Appellant to the ICAC, the Respondent had actually invited this Court to adjourn the consideration of the appeal pending the trial against the USD officers, which would soon take place in December. Having heard the objection raised by the Appellant, I have declined to take that particular course of action. If the Appellant herself does not wish to rely on her actual contribution in the coming trial as an additional mitigating factor, I do not consider it appropriate for this Court to adjourn the case. I am concerned that the present appeal, if adjourned for that reason, may be seen as a way to pressurize the Appellant to say things in a certain way at the trial. Having said that, of course, by not adjourning the appeal, it means that this Court would not take into consideration about her giving evidence in the coming trial as that is an unknown factor.

8. The learned Magistrate had prepared a very clear and thorough Reasons for Sentence. After analysing the relevant facts and the authorities, he stated in para.9 that he would adopt 15 months' imprisonment as the starting point in this case. He pointed out that this starting point was marginally less than the 18 months applied in the case of Secretary for Justice v. Yeung Kwong Chi [1998] HKC 172. The learned Magistrate recognized that the circumstances of the present case were different from the case of Yeung Kwong Chi, but he considered that the effect on the criminal justice system was broadly similar as hundreds of hawker cases came before the courts each day and perverting the system by such a method was not easy to detect. He concluded that an element of deterrence was required if the administration of justice was not to be brought into disrepute.

9. I have given anxious consideration to the able and earnest submissions by counsel, but in the end, I am unable to say that the matters raised amounted to special and exceptional circumstances. They are no doubt strong mitigating factors, but the sentencing Magistrate had already given them full consideration. Even taking into account the Appellant's present condition of stress and depression, I cannot find any ground to disturb the Magistrate's decision in declining to suspend the term of imprisonment.

10. There are no precedents for the sentence in the present case. Whereas the learned Magistrate was right in principle to rely on Yeung Kwong Chi as a reference in setting the starting point, there appeared to be a greater difference in the criminality between the two cases. In Yeung Kwong Chi, there was a wicked scheme to frame an innocent person, however, in the present case, the "substitute Defendant" was a willing participant. Of course, in the end, it is the criminal justice system that was being cheated, and no doubt a term of imprisonment should be imposed even for a first offender in order to deter such activities.

11. Without laying down any general guidelines in relation to the sentence of such an offence, in the particular circumstances of the present case, I came to the conclusion that the starting point should have been 12 months instead of 15. The learned Magistrate had explained fully in his Reasons for Sentence why he gave the discount of nine months. I agree entirely with his reasoning and analysis. I consider that the reduction was fair and justified. The same reduction should therefore be applied to the 12-month term.

12. Hence, I shall allow the appeal to the extent of reducing the sentence to a term of three months.