Attorney General v. Tsai Shen Fong

CAAR000030/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 30 OF 1975

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Coram: Huggins & Pickering, JJ.

Date of Judgment: 31st December 1975.

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JUDGMENT

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Huggins, j.:

1. This is an application for leave to apply for a review of a sentence imposed by a magistrate. The Respondent was charged on two charges, one of failing to conform with a traffic sign and the second of criminal intimidation. Eventually the first of those charges was not proceeded with and the Respondent pleaded Guilty to the second charge. Having heard counsel on his behalf the learned magistrate decided conditionally to discharge the Respondent on his own recognizance of $300.00 to be of good behaviour for six months, and the conviction was not to be recorded. An application was made to the learned Chief Justice for leave to apply and it was refused. The application is now made to this Court.

2. The circumstances were that the Respondent's car stopped at the side of the road in contravention of a "No Stopping" sign. A police constable went up to him to remonstrate with him for this breach of the law and apparently an argument ensued. A crowd gathered and the Respondent then started shouting and threatening the constable, saying "This police constable wants to charge me since I have refused to pay him $50. I must complain to the ICAC; I will fix him." It is admitted that that allegation was totally untrue.

3. Unfortunately the facts were not investigated as fully as perhaps they ought to have been in the lower court. It is possible to imagine various circumstances in this case. It could be that the constable did not address the Respondent in a manner befitting his office, and thereby provoked the Respondent. There is not a shred of evidence of that. All we know is that this allegation was made and that it was unjustified. We are told but again this does not appear on the record - that the allegation was persisted in after the Respondent was taken to the police station and that, as a result, the Independent Commission Against Corruption investigated the allegation. It is, in my view, most significant that counsel for the Crown, at the hearing before the magistrate, said that the Crown would accept that whatever was said by the Respondent "was said in anger" and (and this is much more important) also "that the whole matter was more of a clash of temperaments than anything else". Now what exactly that meant is not very clear. As I have already indicated, it could be that the Respondent was provoked, and reasonably provoked, it could be that the Respondent was provoked, and reasonably provoked, by the constable, and I think that it is on that basis that we must approach this case. We have to assume the facts - such as are not recorded - in favour of the Respondent. I say at once that, had the case been that, without any provocation whatever and without this concession which was made by counsel for the Crown, the Respondent made a totally unjustified allegation of corruption against the police officer and persisted in that allegation, then this sentence was grossly inadequate. But, in all the circumstances of this case, I do not think that it would be right for us to interfere. We have to accept the record as it is and we have to accept the concession that was made, making what we can of the terms of that concession.

4. For these reasons I think this application must be refused.

31st December 1975.

Representation:

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

APPLICATION FOR REVIEW NO. 30 OF 1975

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Coram : Huggins & Pickering, JJ.

Date of Judgment:31st December, 1975.

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JUDGMENT

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Pickering, J. :

5. I do not propose to review the facts of this case since they have been set out by the learned President. I think it important, however, to emphasise that I agree with every word which Mr. Penlington for the Crown has said as to the gravity of this type of offence which may fairly be said to equate in culpability to the offer of a bribe. The most upright public servant may well be daunted from the full execution of his duty by a threat to report him, however falsely, to the Independent Commission Against Corruption. The likelihood of suspension whilst an enquiry was made and the possibility of adverse publicity may well weight very heavily upon an individual so threatened and I would not wish our decision in this particular case to leave any impression that this type of offence is anything but extremely serious and meriting a deterent sentence in normal circumstances.

6. The case before us was abnormal in that the Crown, by its somewhat ambiguous concession that the whole matter was more of a clash of temperaments than anything else, virtually threw away the possibility of a more realistic sentence, It is for this reason and for this reason only that I concur in the refusal of the application.

Representation:

Penlington for Crown/Appellant