Lo Fu Keung v. The Queen
Read the full judgment text of CACC 160/1980 on BabelCite. This Court of Appeal judgment was delivered on 14 March 1980.
1. There are few cases in Hong Kong giving indication as to what is an appropriate sentence for perjury. In this case the learned magistrate believed he had no power to impose a fine. It seems he was unaware of or had overlooked the provisions of sections 92 and 97 of the Magistrates Ordinance, Cap. 227.
Cited by 3 cases
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CACC000160/1980 Perjury by a police officer - appropriate sentence IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 160 OF 1980 -----------------
----------------- Coram: Addison, J. Date of Judgment: 14 March 1980 ----------------- JUDGMENT ----------------- 1. There are few cases in Hong Kong giving indication as to what is an appropriate sentence for perjury. In this case the learned magistrate believed he had no power to impose a fine. It seems he was unaware of or had overlooked the provisions of sections 92 and 97 of the Magistrates Ordinance, Cap. 227. 2. Mr. Hoo who appears on behalf of the appellant has asked me to remit the case to the learned magistrate for him to reconsider his sentence as I am informed that the learned magistrate was minded to impose a fine had he thought he had power to do so. 3. I have given consideration to taking this course under section 119(d) of Cap. 227 but the circumstances of this case do not warrant my doing so. 4. Mr. Hoo has argued that the learned magistrate did not in passing sentence attach sufficient importance to the appellant's previous good character and to his personal circumstances. He argues that a deterrent sentence ought not to have been imposed in this case not only because the appellant is a first offender but also because of the circumstances of the case generally. 5. I have been informed that the appellant lives with his parents at Tai Koo Shing in a flat which is mortgaged. He has assisted his parents in paying off that mortgage. He is at present on bail pending appeal and he has found work in the interim period. There is reason to assume he will be allowed to continue in that employment if he is not given a custodial sentence. 6. All the matters which have been argued before me are linked to one question only namely: was the sentence an appropriate sentence having regard to all the circumstances of the case? To decide that one must look at the facts. 7. The appellant who was formerly a detective constable attached to the Criminal Investigation Department at Wan Chai Police Station, on the 1st February 1980 pleaded guilty before the learned magistrate sitting at Causeway Bay to the offence of perjury and was sentenced to imprisonment for 12 months. 8. The facts giving rise to his prosecution were as follows. 9. On the 12th September 1979 he gave evidence in the case of R. v. Choi Yuk-choy that he had arrested that person at 4.40 a.m. on the 29th July 1979 outside the Kai Fong Welfare Association Primary School in Oi Kwan Road for loitering and going equipped for stealing. His evidence was that he and another police officer had observed Choi tampering with the doors of two private cars. 10. The appellant was cross-examined as to the time he arrested Choi and he confirmed it was at 4.40 a.m. because he looked at his watch at the time. It was Choi's case that he was arrested between midnight and 1 a.m. on that day. 11. Choi was acquitted at his trial and the learned magistrate who heard Choi's case, who of course was not the same magistrate who heard the perjury trial in the court below, directed that the papers be referred to the Attorney General for consideration whether to prefer a perjury charge against the appellant. 12. It is not necessary to go into the details of the evidence that would have been adduced had this appellant pleaded not guilty. Suffice it to say that the evidence was overwhelming and would have been more than sufficiently corroborated to have led to a conviction. No other verdict would have been possible. 13. By pleading guilty the appellant spared the court the necessity of hearing the case and it is in his favour that he himself did not seek to commit perjury in that trial. 14. The proposed evidence was read out to the appellant at his trial as part of the brief facts of the case and was agreed to by him. 15. The appellant was represented in the court below and it is clear from the record of the learned magistrate that the appellant falsely testified he arrested Choi at 4.40 a.m. because he did not want it to be known that at that time he was asleep in the police station when properly he should have been on duty. 16. Apparently he had been on duty from 5 p.m. on the 28th July 1979 and was not due to finish his term of extended duty until 5 a.m. on the 29th July 1979. He, in fact, arrested Choi sometime between 1 a.m. and 2 a.m. on the 29th July 1979. He took Choi to Wan Chai Police Station and was due to go on return on patrol for which he would be paid overtime. 17. He did not do any extra duty for the unfortunate and understandable reason that he was tired and fell asleep in the police station. Rather than lose face he covered up his dereliction of duty by saying he had arrested Choi at 4.40 a.m. 18. It was conceded that the time of Choi's arrest was material evidence in the prosecution's case against Choi. 19. Mr. Corrigan who appeared in the court below said everything that could be said in the appellant's favour. Mr. Hoo who has appeared for the appellant in this appeal has argued the case with his customary ability. This was not a case where a witness had falsely testified as to the commission of an offence nor was it a case where a police officer had manufactured false evidence so as to implicate an innocent person. It was a case where there had been a manipulation of the evidence by the appellant to save himself from an embarrassing situation. 20. The learned magistrate was alive to that fact when he imposed the sentence he did. He took into account the exemptary conduct of the appellant during his nine years service in the Royal Hong Kong Police Force. He also gave consideration to the question of suspending the appellant's sentence but he came down against doing so. 21. I have heard all that has been urged on the appellant's behalf in this appeal and as I have already said ultimately the question for this court is what is an appropriate sentence for the offence of perjury committed in these circumstances. 22. There are not many reported cases of sentences for perjury. In So Chun-man v. R. (Criminal Appeal 1218/76) the appellant gave false testimony in an unsuccessful civil case to assist a relative. The appellant who had a history of psychiatric disorder and who had attempted to commit suicide on two occasions had his sentence of 2 years' imprisonment reduced on appeal to one of 12 months' imprisonment. 23. In R.v. Davies (1974) 59 Cr.App.R. 311 the Court of Appeal in England ruled that save in most exceptional circumstances a custodial sentence is inevitable for perjury. In that case the father of two sons, who were charged with dishonesty, falsely said in mitigation and on oath that each son was gainfully employed. His sentence of 12 months' imprisonment was upheld on appeal notwithstanding he was doing what he thought best for his children. 24. In R.v. Lai (1978) Cr.L.R. 52 a sentence of 9 months' imprisonment was considered appropriate for perjury committed in a civil case where the decision in the case was not affected by it. 25. The commentary to the report is as follows:
26. Applying the principles to this case one asks oneself the question: 'Are there present any exceptional circumstances which would justify a departure from a custodial sentence, as the norm?" and the short answer to that is "No". 27. In fact were the sentence of imprisonment in this case to be suspended the public would not be unjustified in thinking the courts viewed perjury by police officers in criminal cases as a matter of little consequence. The offence was a deliberate one and when perjury is committed by a police officer it tends to undermine the faith the judiciary reposes in the police force as a whole. 28. Offences of this kind committed by police officers do not simply create a ripple in a pomd they go much further than that. I therefore am of the opinion that the magistrate was right neither to fine the appellant nor to suspend his sentence of imprisonment. I cannot say that the duration of the sentence was manifestly excessive bearing in mind not so much the circumstances under which the perjured statement came to be made but the disturbing effect it has to all who are concerned in securing a true and just administration of the law. For these reasons the appeal against sentence is dismissed.
Representation: Mr. Alan Hoo (K.Y. Woo & Co.) for Appellant Mr. Tom Gall, C.C., Counsel for Crown |
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