On the same date, your husband pleaded guilty to the same two counts and was committed for sentence, hence the matters were committed to this court under two separate case numbers.
The evidence against you was not strong and after the first case management hearing on 24 August 2021, the prosecution reconsidered its position and sought to add a count of perverting the course of justice as an alternative to Count 1 on the indictment. That amended indictment was placed before the court on 8 October 2021 and at the court’s direction you did not enter a plea at that time.
Your first opportunity to enter a plea to an offence having been appropriately advised which more accurately reflects the part you played in these events has been today and consequently you will be given full credit for that plea.
I am grateful to Mr Sherry for considering the matter carefully and amending the Summary of Facts to reflect the true position. That Summary of Facts also necessarily covers the case against your husband because the two of them are intricately involved with one another but the relevant paragraph of the Summary of Facts as against you is paragraph 10.
You have pleaded guilty today to one count of doing an act tending and intending to pervert the course of public justice, contrary to Common Law under Count 2 of the indictment as amended.
The prosecution have asked that Count 1 and Count 3 lie on the file not to be proceeded with without the leave of this court or the Court of Appeal and I have ordered that to be the case. Your act of tending to pervert the course of justice is, as I have said, connected to the two counts of trafficking in dangerous drugs under which your husband has accepted that he trafficked in a total of 849.4 grammes of cocaine. However, your act relates only to Count 1 under HCCC 220/2020 and not to Count 2.
Those offences by your husband occurred on 24 December 2018 when he was intercepted outside of your flat which was Flat A of the 23rd Floor of Tower 11 of Tierra Verde in Tsing Yi and as he left the flat and at the time that he was stopped, he called out to warn you that there were police outside of the flat.
Having heard him, you threw a bag out of the window which was later recovered from the podium floor outside of Tower 11. That was found to contain 789 grammes of cocaine, although that cocaine was not visible within the bag when first opened. It was covered by several other items.
Upon arrest and caution and interview as is your right, you remained silent and you are, until today and your plea of guilty, you were of good character.
You have accepted by your plea that you sought to dispose of evidence relating to Count 1 of HCCC 2020/2020(220/2020?) and in so doing you sought to prevent the investigation and the prosecution of your husband for offences in relation to dangerous drugs.
I accept for the purposes of sentencing that you did not know the exact contents of the bag or the quantity of dangerous drugs within the bag. I rely for that on the written mitigation provided to me from Mr Mak on your behalf dated 21 January 2022. And I note that there is no other evidence available to the prosecution to suggest that you did know and Mr Sherry rightly accepts that position.
Mr Mak tells me that you are 36 years of age, educated to Form 4 and of course you were unemployed at the time of your arrest as you were a housewife and the mother of two very young children. You have no criminal record, as I have said, and clearly you did this act to protect the man you loved and the father of your two children.
The offence of perverting the course of justice is a serious one. It covers a multiplicity of acts and there is, as Mr Sherry has said, no guideline tariff for how matters should be dealt with. It would, however, usually attract an immediate sentence of imprisonment.
But this offence took place in 2018, almost four years ago during which time you were initially remanded in custody for what I am told is 6 days shy of 3 months, but you were later given bail in order to care for your two small children.
The time that it has taken to have this matter dealt with cannot be said to be any fault of yours. You should never have been proceeded with for trafficking in dangerous drugs and the intervening social unrest and COVID-19 have exacerbated matters and led to more delay.
You had the possibility of a long prison sentence hanging over you and the possibility of being separated from your children until, of course, the case management hearing in August 2021 when other alternatives were raised. That must have been very distressing to you as the sole carer of two very young children.
The leading case in this respect is R v Vreones [1891] 1 QB 360 in which the defendant also sought to tamper with evidence. That has of course been succeeded in this jurisdiction by HKSAR v Egan [2010] 13 HKCFAR 314 and HKSAR v Wong Chi Wai HKCFAR 10/2012([2013] 16 HKCFAR 539?). But those authorities had a very different type of perverting the course of justice before them.
Mr Mak has also drawn the court’s attention to R v Reynolds [2007] 1 Cr App R (S) at page 91 in which the Court of Appeal of England and Wales indicated there were three factors to be considered when sentencing for offences of this type: firstly, the seriousness of the substantive offence to which it relates; secondly, the degree of persistence attributable to the offender in question in seeking to pervert the course of justice; and thirdly, the effect of that attempt.
Trafficking in dangerous drugs causes significant harm to the citizens of Hong Kong and it does attract a deterrent sentence which is premised upon the amount and the nature of the drug in question. It is therefore a serious offence.
There is no evidence on the facts of this case to suggest that you had any idea of the quantity of the drugs within the bag you threw out of the window. This was clearly a one-off, spur-of-the-moment act in panic when you heard your husband shout out.
There is no ‘course of conduct’ here as there is in other cases. The act was a split-second reaction to the warning given by your husband and that act had no effect whatsoever upon the administration of justice as the bag was seen to fly out of the window and was recovered immediately.
Your act did not lead to false accusations against innocent persons nor did it seek to deflect your own culpability. No extra time was engaged in investigating this offence. The true perpetrator has now been dealt with.
Your children are still extremely young and solely raised by yourself. They will lose their father for a significant period of their childhood and you will lose the support of your husband.
Mr Mak also informs the court that in the intervening period, you have remained, as I would expect, completely out of trouble. This offending has clearly come about purely by a desire to protect the man you love and your children and for no other reason.
I also understand that you were diagnosed with DFSP in 2021 and underwent surgery to remove the growth and that you were referred to Queen Elizabeth Hospital Oncology Department for immunotherapy and radiotherapy and were also hospitalised in April of this year. My understanding of this condition is that it is rare but will unfortunately recur. It will therefore require constant medical supervision which must have also proved very difficult whilst raising the children on your own and having these matters hanging over your head.
The lateness of your plea cannot be laid at your door. There was necessarily much negotiation between the bench and the prosecution and then further negotiation between the defence and the prosecution. I am not at all surprised that you entered a plea of not guilty initially.
However, you have wisely accepted you sought to assist your husband by throwing the evidence away and in so doing you entered the plea at the earliest opportunity. I consider that in all the circumstances of this case, the appropriate sentence is one of time served and therefore you will not be required to surrender to custody today.