The Attorney General v. Yeung Sau Shing

CAAR000021/1980

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Coram: Cons, J.A., O'Connor and Liu, JJ.

Date of Judgment: 13th July 1981

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JUDGMENT

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Cons, J.A.:

1. On the 10th February 1979 there was a dispute between on the one hand a Mr. WAI Kin-bong, and on the other a Mr. Tony Cruz, his brother and two other persons. It took place in a car-park in the New Territories, and sadly, turned violent with the result that Mr. Wai was knocked unconscious and taken to Queen Elizabeth Hospital where he was detained for some eighteen days. On the fourth day one witness who saw him described him as still having his face all swollen up, unable to open his eyes and with his nose broken.

2. Naturally the police made inquiries and although they did not ultimately bring any prosecution against Mr. Cruz, it would seem that such a prosecution was contemplated by those on his side, for on the 22nd the respondent to this application, Mr. YEUNG Sau-shing, went to visit Mr. Wai in hospital. There he attempted to persuade Mr. Wai either not to give evidence against Mr. Cruz or to give evidence that would not "nail him down". Money was offered. No specific amount was mentioned but the language used indicates that it would have been a very substantial sum.

3. On the 27th, Mr. Wai not having agreed on the 22nd, the respondent returned and repeated the approaches.

4. A report was later made to the police, but it was not until the 20th October of the following year that an information was laid against the respondent. It charged him with attempting to pervert the course of public justice. The hearing took some eight days before the magistrate and, after reserving his judgment, the magistrate convicted, sentencing the respondent to two months' imprisonment, but with the imprisonment suspended for a period of twelve months.

5. This is an application by the Attorney General for review of that sentence pursuant to leave given on the 28th January, this year.

6. In response to the application the magistrate has very methodically set out the reasons which led him to impose the sentence. However, with respect to him, he set off on the wrong foot. He assumed that the crime was punishable by a maximum of two years' imprisonment and a fine of $2,000. That is not correct. Those terms do not relate to this particular offence as such. They are the general limits of a magistrate's jurisdiction over indictable offences tried summarily. The maximum for this offence is seven years' imprisonment and a fine of $50,000, which is a very different kettle of fish.

7. Counsel for the respondent today has been equally methodical. He reminded us of the approach taken by this court with regard to applications of this kind, of the principles adopted when deciding whether to interfere or not with a discretion exercised by a court below, and of the general principles observed by any court when passing sentence, that is, to take into consideration not only the particulars of the offence but also those of the particular offender. He then set out certain features which he suggested were relevant and important in these respects.

8. As to the offence itself, he sought to illustrate how it had grown out of what was originally an innocent attempt to smooth over, by the offer of payment for medical expenses, an incident which the respondent in any event believed to have been started by Mr. Wai himself; how those initial approaches progressed to an apology and the suggestion of compensation; then to a request not to give evidence; and finally, if the police should insist on bringing a prosecution, to a request to tailor the evidence so as not to nail Mr. Cruz down. Counsel stressed the friendly nature of the meetings in the hospital, the open way in which the respondent went about his business in the presence of Mr. Wai's wife and another patient, and on the second occasion in the presence of a further patient who was an European police officer.

9. It is unfortunate that in setting out his findings on the facts the magistrate has confined himself to the very barest essentials. There was, for example, evidence from Mr. Wai that the respondent referred to "fixing the police". On the first occasion he said he was able to do so. On the second he said that it had already been done. There has been no suggestion at any time that the respondent did or even attempted to "fix the police", but whether or not he so spoke to Mr. Wai would have been relevant to sentence. We do not know, however, whether the magistrate accepted or not that he did.

10. Even so, it is impossible to avoid the conclusion, when one reads the evidence, that the respondent did exert considerable pressure upon Mr. Wai, and at a time when Mr. Wai was still suffering from the serious injuries that he had received.

11. The subsequent history of affairs is unusual. Mr. Wai was discharged from hospital on the 28th February. Although he mentioned the matter in the hospital to the European officer who was there on the 27th he did not go straight away to the police station and make a report. He waited until he was called there on the 8th March, which was also the occasion when he was told that the Attorney General did not intend to prosecute Mr. Cruz. As a result of that information Mr. Wai launched his own private prosecution.

12. By the time that prosecution had been completed it was October. The police had still taken no action against the respondent, but the I.C.A.C. became involved. Even then it was not until the following spring, that is in March of 1980, that the respondent was interviewed, and moreover it was not until the September that he was charged.

13. We do not know the causes for these individual delays and we see no advantage in speculating. In any event they were not the fault of the respondent. Yet they have to some extent caused this matter to be hanging over his head for some considerable time, which is a factor to which some consideration should be given.

14. As to the offender himself, not only is he a man of clear record, he has an excellent record of community service. We have been handed three affidavits from highly respected members of the community which testify to his moral worth. The magistrate accepted, and it was never suggested otherwise, that he did not act in this affair for the sake of money. He acted for the sake of friendship for Mr. Cruz. However, that is not an uncommon feature in this particular kind of case.

15. The excellence of his character is, of course, a matter that cannot be ignored. But we must at the same time not lose sight of the fact that this is a crime which is essentially against the public interest as a whole. It strikes at the very heart of the system by which law and order is enforced in society. If it were to succeed to any appreciable extent it would completely destroy public confidence in that system. Strong measures are needed to preserve that confidence and consequently, the personal circumstances of an individual defendant carry less weight in this case than they would in relation to some other crimes.

16. It is not in dispute that attempting to pervert the course of justice is always a serious offence, although that's being said, the actual gravity in any given situation will depend upon the circumstances, which may vary very widely from one case to another. It is accepted by both sides that it usually attracts a sentence of immediate imprisonment or other form of custody. Counsel for the Crown would also qualify the word "imprisonment" by the word "substantial", and with that we would generally agree. Otherwise, the difference between counsel on either side is really one of emphasis. Counsel for the Crown suggests that departure from that principle should only be in exceptional circumstances. Counsel for the respondent prefers to put it that immediate imprisonment will follow in most cases, but by no means all.

17. Crown counsel has referred us to reports of several cases over the past few years. Those relating to police officers, we think, are in the category by themselves. And there is one case, that of Mr. Henry Yuen⁽¹⁾, which is so particular in its own circumstances that we can draw no assistance from it. We are left then with two which do give us some slight guidance. One relates to the identification of the witness in an abortion case⁽²⁾, the other to two mothers who were trying to help their sons⁽³⁾.

18. We have given consideration to all the matters that have been urged upon us. We are nevertheless all agreed that the sentence imposed by the learned magistrate was so inadequate that it does give rise to feelings of shock and outrage. Therefore the application succeeds.

19. We are unfortunately not agreed as to what would have been a proper sentence at first instance. The lowest view is one of twelve months' imprisonment, although the majority of us would have put it considerably higher.

20. In the circumstances we propose to adopt the lower figure. It is the established policy of this court at present to substitute in these cases something less than it thinks would have been proper at the trial below. We therefore order that the sentence of the magistrate be set aside, and replaced by a sentence of nine months' imprisonment. We are not persuaded that the circumstances are sufficiently unusual to warrant the suspension of that period of imprisonment.

Representation:

A.P. Ducket & H.M. Sinclair, counsel for Applicant.

John Mathew, Q.C. & Robert G. Kotewall (Fairbairn & Kwok) for Respondent.

(1) R. v. YUEN Man-chiu unreported: Crim. App. 399/80

(2) R. v. SIU Kuk-ngor and another unreported: Crim. App. 176/74

(3) R. v. WAN Tai unreported: Crim. App. 430/79