HKSAR v. YUNG WAI SIU

HCMA 1051/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1051 OF 2000

(ON APPEAL FROM ESCC 3523/2000)

____________

_______________

J U D G M E N T

_______________

Background:

1. The Appellant was convicted on her own plea of conspiracy to pervert the course of public justice and was sentenced to 4 months imprisonment. She is now on bail pending her appeal against sentence.

2. The Appellant is now 47 years of age. She is married and has three children aged 15 to 18. Hitherto, she has a clear record. She worked as an unlicensed hawker selling vegetables in Chaiwan to supplement the family income as her husband's employment was irregular. On a number of occasions between January and March 1999 while she was hawking with her mobile stall, she was arrested for obstruction of a public place. She arranged and certain USD officers connived in Madam Law standing in for her as the offender. Under this arrangement Madam Law was arrested instead of the Appellant and substituted the Appellant in the subsequent criminal proceedings.

3. Mr Cheng submitted that though the Appellant committed a serious offence, the facts show that it was in relation to something very trivial. The Appellant had committed offences of obstruction for which the normal penalty was a fine. She entered into the arrangement just for convenience and out of stupidity. She was uneducated and did not realise the serious consequence of the arrangement. The offence was committed with the connivance of the law enforcing officers. Mr Cheng relied upon that as a special circumstance and submitted that she should not lose her liberty just because of her stupidity.

4. Mr Cheng submitted that in HKSAR v Tse Lin Soong, HCMA 995/1999, which is on all four with the present case, the defendant received a sentence of three months imprisonment only, while the Appellant was sentenced to four months. He also referred to another similar case in which a magistrate in Kwun Tong had a sentence of imprisonment suspended.

5. Mr Cheng said that the Appellant was suspected of having intestinal cancer and other problems with her uterus. She had a tumour removed in December and was due for a follow up examination this afternoon. He submitted that, in all the circumstances, any sentence of imprisonment ought to be suspended.

6. In passing sentence, the learned magistrate had in mind the case of HKSAR v Tse Lin Soong, HCMA 995/1999, in which Deputy Judge Tong, as he then was, adopted a starting point of 12 months imprisonment and reduced a sentence to three months imprisonment. The learned magistrate then adopted a starting point of nine months imprisonment which he reduced to six months for her plea. He further gave her one month discount for her clear record and another one month discount to reflect that her health would no doubt make a sentence of imprisonment more onerous for her. He sentenced her to four months imprisonment which would have enabled her to be released by December so that she could attend her medical examination.

7. In my view, perverting the course of public justice is always regarded as a very serious offence. The circumstances which led to the perversion may be very trivial as in the present case. However, public justice is a value which has to be guarded at all costs so that confidence in our judicial system can be preserved. Any attempt to pervert public justice goes to the heart of the rule of law. Save in very exceptional and trivial circumstances, anyone who commits this type of offence, albeit unwittingly, should expect a custodial sentence. I would have thought conniving with law enforcing officers aggravates an offence rather than alleviates it. To connive with law enforcing officers to deceive the court makes a greater mockery of the court than conspiring with others who have nothing to do with law enforcement.

8. In determining a starting point, I cannot lose sight of the trivial background in which the offence arose. Taking all circumstances into account, I think a starting point of six months appropriate for this type of offence if committed by ordinary citizens and nine months appropriate if law enforcement officers are involved as in the present case. I also consider three months discount for plea and another month discount for the Appellant's health appropriate. The additional one month discount for clear record given by the learned magistrate is, in my view, unnecessary and without merit. The usual one third discount for guilty plea is very generous and has already built into it an allowance for good record where there is one. Thus in the circumstances, I consider the sentence of four months imprisonment is on the low side. The appeal against sentence is therefore dismissed.