Lo Chi Yin and Another v. The Queen

CACC00235/1982

Criminal Appeal No.235 of 1982

Criminal law and procedure - attempting to pervert the course of justice - defective Statement of Offence cured by detailed Particulars of Offence - charge averring the making of false statements on two different occasions to create false alibi for another suspected of kidnapping and murder is not bad for duplicity (R. v. Rowell applied) - offence of utmost gravity deserving immediate custodial sentence.

IN THE SUPREME COURT OF HONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 235 OF 1982

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BETWEEN

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Coram: Fuad, J.

Date: 19 April 1982

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J U D G M E N T

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1. On the 5th January this year at 7.30 a.m. a school boy aged 14 was kidnapped. A ransom demand was made to the boy's father and the police were called in. On the 8th January the boy's body was found in a shallow grave at Shatin; he had been murdered a few hours after his abduction. Meanwhile, a man had been arrested ("the suspect"). The suspect lived in a room in the Kwai Shing Estate, Kowloon and a detective constable went there at 8 p.m. on the 8th January. He found the two appellants there. The 2nd appellant is the mother of the 19 years old 1st appellant. They shared the room with the suspect although they are not related to him. They each gave a statement to the police officer to the effect that until sometime after 9.30 a.m. on the 5th January, the suspect had been asleep at home.

2. During the course of the investigations the suspect admitted the kidnapping of the little boy at 7.30 a.m. on the 5th January, and confessed to murdering him two hours later. And so on the 9th January, the same police officer interviewed the two appellants again. They gave further statements, in greater detail, confirming that the suspect had been sleeping until 9.30 a.m. Before making their statements they had been told that the suspect had given a different account of his whereabouts at the material time. Later the same day the appellants were interviewed again and this time a caution was administered. On this occasion they admitted that they had fabricated an alibi for the suspect because they had seen newspaper accounts of his predicament and wanted to help him as he was a good man.

3. On the 2nd February the appellants appeared before a magistrate and each pleaded guilty to separate charges which were in identical terms, as follows:-

"Statement of offence :- Fabrication of false evidence, contrary to Common Law.

Particulars of offence :- .......... you are charged on the 8th and 9th days of January, 1982, at Kowloon in this Colony, you did an act which intended to, and was intended by you, to pervert the administration of public justice, in that you did make two written statements, which gave one (the suspect) an alibi for the murder and kidnapping of (the victim) on the 5th day of January 1982, and you thereby attempted, by the fabrication of false evidence, to mislead a judicial tribunal which might come into existence."

4. In respect of the 1st appellant, the magistrate made a Detention Centre Order. The 2nd appellant was sentenced to six months' imprisonment. Hitherto the appellants had been unrepresented. They were represented by Counsel when the magistrate declined to vary his earlier decisions as to the disposition of the appellants, but they were granted bail pending appeal.

5. When the appeal came before me, Mr. Sedgwick (who had not previously represented the appellants) sought, on their behalf, to obtain leave to appeal against the convictions out of time. The appellants did not allege that they had not appreciated the nature of the charge or that they had not intended to plead guilty. The grounds of the intended appeals were that upon the admitted facts (these I have already set out) the appellants could not have been convicted of the offence charged - "fabricating false evidence", and that the charges were bad for duplicity.

6. I think the Statement of Offence should more correctly have been "attempting to pervert the course of justice" (see, for example, R. v. Rowell [1978] 1 W.L.R. 132 and R. v. Machin [1980] 1 W.L.R. 763) but having regard to the plain words of the detailed Particulars of Offence I was of the opinion that the appellants could not possibly have been left in any doubt about the offence charged against them. In my judgment the appellants had been neither embarrassed nor prejudiced by this technical irregularity. R. v. Power 66 Cr. App. R. 159 indicates the approach of an appellate court to defects of this kind.

7. As regards duplicity (Mr. Sedgwick sought to argue that each charge alleged the commission of two offences, one on the 8th January and one on the 9th January), I was of the opinion that this complaint was wholly misconceived. The point was succinctly dealt with, by Ormrod L.J. in R. v. Rowell, at p. 138 when rejecting a similar submission in like circumstances:-

"The remaining grounds of appeal, namely duplicity in the indictment and the lack of sufficiently proximate acts to constitute an attempt, are both based, in our opinion, on the same false premise which arises from the description of the offence as 'Attempting to pervert the course of public justice'. The use of the word 'attempt' in this context is misleading. The appellant was not charged with an attempt to commit a substantive offence but with the substantive offence itself which is more accurately, if less compendiously, described in Pollock B's words which we have already quoted, namely the doing of an act (or we would add a series of acts) which has a tendency and is intended to pervert the course of justice .............. Consequently all the appellant's acts, his two false statements to the police accusing the man, described but not identified by name, of robbery, the placing of the toy pistol in the bus and the arranging that it should be found by Cronin are all part of a course of conduct between the dates alleged which had a tendency and, as the jury must have found, was intended to pervert the course of justice. That it did in fact cause a grave injustice to Timms, who was wrongfully arrested and detained in custody for several days, is beyond question. No question of duplicity in the indictment, therefore, arises."

8. It was for these reasons that I thought it right to refuse leave to appeal against the convictions out of time.

9. On the appeals against sentence, all that need be said is that the appellants admitted offences of the utmost gravity, and the public interest clearly demanded the imposition of immediate custodial sentences. The 1st appellant was quite old enough not to have allowed himself to be influenced by his mother, if such was the case. I therefore dismissed their appeals.

Representation:

Mr. Sedgwick (H.M. So & Co.) for Appellants.

Mr. Bolton for Respondent/Crown.