HKSAR v. Wong Kam Ching

DCCC 337/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 337 OF 2015

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Reasons for Sentence

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1.The defendant has been convicted after trial of one offence of perjury which was committed during his testimony to a Statutory Inquiry in relation to the collision that the vessel ‘Lamma IV’ was involved in and the inspection of that vessel on 8 May 2012. I do not want to go into any more details of that. The details of my findings can be found in my Reasons for Verdict. Nevertheless, I found that the defendant told a falsehood to the Tribunal. However, it can be said that that falsehood was disbelieved by the Tribunal, was ineffective.

2.Insofar as a motive can be discerned for what the defendant did, it would appear to be as self-protection to establish an earlier statement was not false. Much has been also said of the Marine Department's failure in the area to provide proper guidelines or instructions to its inspectors about its non-enforcement policy. It is clearly something that would have placed individual inspectors in an invidious position in the discharge of their duties.

3.As far as the approach the court must take following a conviction for perjury, I refer to an English case of Crown v Davies back in 1974 recorded at 59 Cr App R 311, Roskill LJ said:-

"Perjury is not always easy to prove. Perjuries are not easily brought to justice and when they are they must be punished."

There is support in Hong Kong for that position that upon a conviction of perjury the normal sentence would be one of an immediate sentence of imprisonment.

4.The English Courts go into a bit more detail in Crown v Archer [2003] Cr App R 446 involving the famed author and that involved perjury in a civil claim and that is relevant because the perjury in this case was not in a criminal prosecution when perjury is normally found. Of course, there is no inherent difference in seriousness between perjury in civil as against or opposed to criminal proceedings. Other factors were more relevant. They listed a number of factors such as the timescale over which the perjury took place; the number of offences that were committed as a result of the falsehoods; were the lies planned and persisted in; had other people been implicated and had the perjury affected the outcome of the proceedings.

5.It can be said in this case that the falsehood was planned and persisted in but of importance, I think, is the defence evidence was disbelieved and in fact disbelieved so much that the Tribunal gave him the opportunity to change his evidence. He chose not to do so.

6.Looking at the defendant's personal circumstances, he is of course a person of clear record. He is aged 60 years old. I have a number of reports on him, a background report, psychiatric report obtained during his remand and a medical report and these reports are helpful.

7.I also have a body of letters that have been written to him by friends, colleagues, acquaintances of the defendant and they all speak of him in the same way. They speak of the defendant's - prior to his fall from grace in this matter - of his exemplary character both in his conduct with his own family and his fatherhood of his children and in his professional approach to his job and also in his social life. The defendant clearly is a man who has been hurt deeply by the stance that he has taken.

8.To just summarise his background, he was brought up himself in a working class family. He earned a Higher Diploma in Marine Engineering from the Hong Kong Polytechnic, started work in 1981; worked as Assistant Ship Inspector and later as a Ship Inspector and then Senior Ship Inspector in 2006. He is a married man with three daughters who constantly provided care and support to his family, considered to be a responsible husband and a caring father, stable working pattern, always provided financial assistance to his family. His family are supportive and speak very highly of him.

9.The defendant also has suffered from a psychiatric illness which appears to have been brought on by the stresses of his evidence before the Commission of Inquiry and also these proceedings that he has faced. A summary of the report that I obtained shows the defendant has been known to psychiatric services in 2014 when he was referred as a general outpatient for features of low mood and anxiety. He had described an onset of symptoms in 2013. He has been diagnosed as suffering from adjustment disorder. He has been under medication for treatment which he is said to have found helpful. He has adopted his own means of trying to reduce the stress on himself and fight his own depression but has not been successful.

10.He is currently from an adjustment disorder with a depressive reaction. His condition can be treated via outpatient clinic and he will and does receive treatment for that during his present incarceration. But it is a fact that I must take into account is that the defendant is suffering from a recognised psychiatric illness of depression and that would, of necessity, make any incarceration of him more trying and difficult.

11.The defendant has some other medical conditions which are set out in the Medical Report but the one of significance is of course the depressive illness he suffers from.

12.The other factor that I must consider when sentencing the defendant is the effect of his conviction upon any pension he might receive from the Government. It has been raised in mitigation but presently there is a certain amount of uncertainty about how that will affect him. The loss of pension, of course, or any part of the pension would be a severe financial penalty and may well rob the defendant of financial security that he has clearly spent a lifetime trying to achieve by his work for the Hong Kong Government in various departments. So it is another matter that I should consider when considering what penalty I should impose.

13.And finally, as I have said before, I have the heartfelt letters of commendation from the defendant's 42 letter writers that have written in his favour.

14.Having considered all these factors, I consider the defendant as a person prior to these matters has an exemplary character and has served the public well. However, I have convicted the defendant of perjury and that is a serious offence and it is serious in this case because it involved an investigation of the causes and effects of the collision of the two vessels and so it was important that all the witnesses there were frank and honest about their role, particularly a person such as the defendant who inspected one of the vessels. I consider that it is a serious matter and ordinarily it is said that any offence of perjury must be visited by a sentence of imprisonment and I agree with that. Clearly a sentence of imprisonment is appropriate in this case. I consider, as courts have often said, that such a sentence should be of immediate effect.

15.The defendant has put forward what I describe as compelling personal circumstances which I have outlined but they do not, in my consideration, amount to the exceptional circumstances that would have to be present in order to suspend any sentence of imprisonment that I might impose. There will, of course, be matters that I should take into consideration in determining the length of any sentence that should be imposed on the defendant.

16.There is no guideline sentence for perjury because the circumstances in which perjury can be committed are manifold, they relate to many different kinds of proceedings and many different forms of lies can be told.

17.Having considered all the factors relating to the seriousness of the offence, I consider, as I said, that a sentence of imprisonment should be imposed. I consider the starting point for such a sentence of imprisonment would after trial be one of 21 months' imprisonment. There are factors I have outlined, two are important: One is the defendant's depressive illness and the second one is the defendant's loss of financial security as a result of these matters and also the fact the defendant has as a result of depressive illness already suffered considerably since that illness started. I found that those two factors will further reduce the sentence of imprisonment by a factor of 6 months.

18.So the final sentence of imprisonment for the defendant will be one of 15 months' imprisonment for this offence and that will be the sentence of the court, 15 months' imprisonment.