HKSAR v. CHU KA SHING

CACC 104/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 104 OF 2001

(ON APPEAL FROM DCCC NO. 1051 OF 2000)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. On 20 December 2000, the Applicant pleaded guilty in the District Court to a charge of doing an act tending and intended to pervert the course of public justice. He was sentenced by Judge Chua to 15 months' imprisonment. He now applies for leave to appeal against his sentence.

The facts

2. The Applicant was employed by an engineering company. He reported to the foreman of a construction site. The foreman was due to be tried at Western Magistracy last October on various charges of false accounting. On the first day of the trial, the Applicant went to the Magistracy and approached a fellow employee who was due to give evidence on behalf of the prosecution in the foreman's case. The Applicant told the witness to do what he could to minimise the foreman's role in the evidence which the witness was going to give. The Applicant added that he knew where the witness's wife worked, thereby implying that something might happen to his wife if he did not moderate his evidence against the foreman.

3. When the witness was due to give evidence, the Applicant followed him into the courtroom. He remained in the public gallery throughout the witness's evidence. He was visible to the witness while the witness was in the witness box. Although the witness had previously signed a witness statement setting out the facts to which his evidence was to relate, he claimed during his evidence to be unable to recall the events in respect of which his evidence was required. In fact, the witness felt threatened by the Applicant, and that was the real reason for his apparent lack of recollection. In due course, the foreman was acquitted, but whether he would have been convicted if the witness had originally given evidence in accordance with his witness statement it is impossible to say, because once it had been discovered that an attempt had been made to influence the witness's evidence, the witness was recalled and the evidence which he then gave accorded with his witness statement. In the circumstances, and in fairness to the Applicant, it must be assumed in his favour that the foreman would have been acquitted anyway.

The judge's approach

4. The judge regarded the Applicant's conduct as serious. She called it "a thoroughly reprehensible act" which required "a deterrent sentence". She quoted what Cons JA (as he then was) had said in Attorney General v. Yeung Sau Shing (AR 21/80), namely that the crime of attempting to pervert the course of justice

".... is a crime which is essentially against the public interest as a whole. It strikes at the very heart of the system by which law and order is enforced in society. If it were to succeed to any appreciable extent it would completely destroy public confidence in that system. Strong measures are needed to preserve that confidence and consequently, the personal circumstances of an individual defendant carry less weight in this case than they would in relation to some other crimes."

The judge also recognised that crimes of this kind vary widely, and that what is an appropriate sentence in one case may not be an appropriate sentence in another. To quote again from what Cons JA said in Yeung Sau Shing:

".... attempting to pervert the course of justice is always a serious offence, although that's being said, the actual gravity in any given situation will depend upon the circumstances, which may vary very widely from one case to another."

5. With all that in mind, the judge took 24 months' imprisonment as her starting-point. She reduced that term by one-third to reflect the Applicant's plea of guilty. She then reduced it by a further month for what she described as the Applicant's frankness and co-operation. That co-operation was a reference to the fact that the Applicant had explained to officers of the ICAC how it was the foreman himself who had asked him to speak to the witness about the evidence which the witness was going to give, and how the foreman had paid the Applicant $1,000.00 for doing so. She therefore sentenced the Applicant to 15 months' imprisonment, but added that, if the foreman were tried and the Applicant gave evidence against him, "no doubt a further reduction in sentence would be given by the authorities".

The trial of the foreman

6. The Applicant did not initially seek leave to appeal against his sentence. Instead, he waited to see what happened to the foreman. In due course, the foreman was tried in the District Court by Judge Sweeney on a similar charge of doing an act tending and intended to pervert the course of public justice, the allegation being that he had paid the Applicant to persuade the witness to modify his evidence. The foreman pleaded not guilty. The Applicant gave evidence against him. The foreman was convicted, and he was sentenced to 18 months' imprisonment.

7. When sentencing the foreman, Judge Sweeney said this:

"I have every sympathy for [the Applicant] who frankly admitted his participation in this offence when first charged and subsequently gave his evidence before this Court in a frank and dignified manner. In these circumstances, [the Applicant] might now have a justifiable sense of grievance at the length of his sentence, imposed before he gave vital prosecution evidence in this trial, with the inevitable result that he received no benefit for becoming a prosecution witness. I hope that his case can be revisited for a reassessment of penalty."

In the light of those remarks, the Applicant now applies for leave to appeal against his sentence out of time. He does so on the ground that, to use Judge Sweeney's words, he has "a justifiable sense of grievance at the length of his sentence" when compared with the sentence imposed on the foreman, and on the additional ground that, leaving aside the sentence imposed on the foreman, he is now entitled to a further reduction in sentence to reflect the fact that he gave evidence against the foreman which was instrumental in securing the foreman's conviction.

The appropriate starting-point

8. We do not regard such disparity as there may be between the Applicant's sentence and the foreman's sentence as of itself justifying a reduction in the Applicant's sentence. If the foreman's sentence was too light, the windfall which the foreman received would not justify reducing the Applicant's sentence if the Applicant's sentence was correct, bearing in mind that the Applicant and the foreman were sentenced by different judges on different occasions. The real question is whether the starting-point of 24 months' imprisonment which the judge took in the Applicant's case was excessive.

9. As we have said, cases of this kind vary very considerably, and the appropriate sentence for one case is not necessarily the appropriate sentence for another. However, what can be said is that where the attempt to influence the outcome of the case is accompanied by threats or intimidation of one kind or another, that is an aggravating factor which should be reflected in the ultimate sentence to be imposed.

10. Few cases of this kind have reached the Court of Appeal in recent years. Three have been cited to us, but none of them attempted to lay down any generally applicable tariff. They merely sought to identify the appropriate sentence in the particular case. Thus, in Attorney General v. Yeung Kwong Chi [1989] 1 HKLR 266, in which an attempt was made to frame an innocent man "who might well have been sent to prison for a considerable period", the Court of Appeal, on an application for review, regarded 18 months' imprisonment as the appropriate sentence following a plea of not guilty. That was also the sentence which the Court of Appeal passed in R. v. Lam Hon Kwan (CA 525/84), again following pleas of not guilty, in which the defendants had attempted to obtain money from a man charged with robbery in return for their co-defendant either not giving evidence against him or giving false testimony to secure his acquittal. In Yeung Sau Shing itself, a case relatively similar to the present one, in which admittedly money was offered to induce the witness's co-operation rather than subjecting the witness to intimidation, the Court of Appeal, following a plea of not guilty, took a term of 12 months' imprisonment before reducing it to 9 months' imprisonment to reflect the fact that the sentence was being imposed on an application for review. However, in none of these three cases was there the significant aggravating element of threats or intimidation.

11. The present case has the aggravating features of the threats impliedly being made outside the courtroom to the witness's wife, and the intimidation of the witness by the presence of the Applicant in the courtroom while the witness was giving his evidence. We regard these aggravating features as significant, and we think that they justified the judge in taking 24 months' imprisonment as her starting-point.

The mitigation

12. However, in addition to (a) the one-third discount to which the Applicant was entitled for his plea of guilty, and (b) the additional modest discount for informing the police that it was the foreman himself who had put him up to do what he did, the Applicant is now entitled to a further discount to reflect (a) his willingness to give evidence against the foreman and (b) the fact that the evidence which he in fact gave was instrumental in securing the foreman's conviction. The courts should play their role in encouraging such conduct, especially in a case such as this where the judge presiding over the trial at which the Applicant gave evidence was so impressed by the manner in which his evidence was given. Mr Kevin Zervos for the Government agrees that the Applicant is now entitled to a further discount to reflect that additional co-operation. In all the circumstances, we think that the Applicant's sentence should be discounted from its proper starting-point by 50%.

13. The final question is whether we should give effect to that view in the light of the fact that the Applicant did not initially apply for leave to appeal against his sentence. As Mortimer JA (as he then was) said in R. v. Mak Chan Pui (CA 483/92):

"As this Court has said on a number of occasions, when assistance is given to the prosecuting authorities by a prisoner after sentence and after the time for appealing has expired, the proper procedure is for such an applicant to petition HE the Governor and not to seek further leave to appeal to this Court. That course is still open to this applicant."

Those comments were expressly approved in HKSAR v. Kwan Yun Hang (CA 252/97). However, in the present case an application by the Applicant for executive clemency could only have been made after the trial of the foreman was over. That trial ended on 3 April. Applications to the Chief Executive for clemency take some time to be considered, and in the present case the Applicant would almost certainly have served his sentence by the time when his application for clemency would have been determined. In the circumstances, it was entirely proper for the Applicant to apply for leave to appeal against his sentence out of time.

Conclusion

14. For these reasons, we grant the Applicant leave to appeal against his sentence out of time, we allow the appeal, we set aside the sentence of 15 months' imprisonment imposed by the judge, and we substitute for it a sentence of 12 months' imprisonment.