HKSAR v. Lau Hong-sang

Case No.CACC 195/1998

Court

Court of Appeal

Date09 Jul 1998

Judge—

Case Document

100%

CACC000195/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

	1998, No.195
	(Criminal)

BETWEEN
	HKSAR
	AND
	LAU HONG-SANG

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Coram: Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 9 July 1998

Date of Judgment: 9 July 1998

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JUDGMENT

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 17^th March 1998, this Applicant, who was D1 at the trial, together with D3 pleaded guilty in the District Court before Deputy Judge Poon to a charge of conspiracy to pervert the course of justice, contrary to s.159A(1)(a) of the Crimes Ordinance, Cap.200 and Common Law. A probation report was obtained and, on 31^st March 1998, the Applicant was sentenced to twenty months' imprisonment.

2. The Applicant now seeks leave to appeal against this sentence on the following grounds.

3. Firstly, he heard the judge citing two particular cases where the course of justice was perverted by the actions of those other offenders, and believes that the facts of those cases were more serious than the facts of his own, which may have misled the judge into taking the wrong starting point for this case.

4. The second ground of his appeal is that some mitigating circumstances were not properly taken into account. By that he means as he has explained today, that there was involved in this case at some stage a female who was arrested by police but who was innocent of any responsibility in this case, and that it was the Applicant who made this plain. He completed his Notice of Application by indicating that he was quite clear that the consequences of making an appeal are that the sentence may be increased or decreased or not changed at all.

5. The facts of this case are a little unusual. The judge described them in this way:

	"D1 was the keeper of premises raided by the police in November 1996. A number of obscene video tapes were seized. D1 conspired with D3 and another male, Chan Shui-ki, the original D2 in the present proceedings, that Chan was to be paid $15,000 to shoulder responsibility for ownership of the tapes by telling the police that he was the owner.
	D3 was the one who introduced Chan to D1 for that purpose. As a result, Chan was charged and sentenced in the magistracy to three months' imprisonment for the offence and, in addition, another three months suspended sentence imposed on him was also activated making a total of six months' imprisonment."

6. Later at p.3N in the Reasons for Sentence, the judge went on to say:

"I have borne in mind that the agreement of the defendants and their efforts in paying off Chan to shoulder the responsibility which Chan otherwise would not have to was a deliberate flouting of the criminal justice system.

The purpose was to exonerate D1 from liability and to spare him a prison sentence. What the defendant did was to put a false case before the police as well as the court. This is tantamount to taking the law into their own hands, albeit that Chan was not forced but rather willingly consented to be a scapegoat. On the other hand, I also take into consideration that the offence from which the present charge arose was a regulatory offence."

7. It is true that the judge did refer to a number of other previously decided case when he took the starting point of 2 ½ years' imprisonment in this case. None of those cases were immediately comparable to the present set of facts. The judge clearly recognized this and we take the view that these comparisons were of marginal importance.

8. The sentence of imprisonment imposed upon this Applicant who had a large number of previous convictions already recorded against him which, to some considerable extent, may explain why he was so anxious that someone else should be blamed for his offence was not an excessive sentence. The facts of this case strike at the heart of the criminal justice system. They are difficult to detect and, as here, they are often carefully designed to avoid detection. The starting point of the judge was wholly correct. The judge gave the Applicant the proper discount for his early plea.

9. There is no merit at all in this application and it is dismissed. We shall order that three months of the time he has served awaiting this hearing shall not count towards his sentence.

(Simon Mayo)	(M. Stuart-Moore)
Justice of Appeal	Justice of Appeal

Representation:

Mr. Francis Lo, S.A.D.P.P. (Ag.) for Respondent

Applicant in person.