The Attorney General v. Poon Ping Kwok and Another

CAAR000006/1991

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Coram: Hon. Sir Derek Cons, V.P., Fuad, V.P., & Kempster, J.A.

Date of hearing: 11 - 13 August 1992

Date of handing down reason for judgment: 27 August 1992

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J U D G M E N T

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Sir Derek Cons, V.P., delivered the judgment of the Court:

1. On the 18th of this month we allowed an application by the Attorney General, brought with the leave of the Chief Justice, to review sentences passed upon Poon Ping Kwok("the 1st respondent") and Lee Hang Yuk ("the 2nd respondent") for acts done tending and intended to pervert the course of public justice. We varied the sentences to such periods as would allow the respondents to be discharged that day, saying we would hand down our reasons in due course, which we now do.

2. The respondents had originally been convicted of two further charges, namely, conspiracy to procure a woman under the age of 21 years to have sexual intercourse with a third party; and exercising control, direction or influence over a woman for the purposes of prostitution. They had been sentenced thereon to a total of 2 years' imprisonment. The circumstances on which those two charges were based, and the reasons for which, again on the 18th of this month, we quashed the convictions are to be found in our judgment delivered the same day. At the same time we dismissed the appeals against the convictions for perverting the course of public justice. The facts on which they were based sufficiently appear from the same judgment. We shall not repeat them here.

3. The sentences of imprisonment imposed upon the 1st respondent were of six months and eight months, and upon the 2nd respondent of six months and 12 months, to be concurrent with each other and with the sentences imposed for the two sexual offences. The Attorney General's application complains that these sentences were manifestly inadequate and wrong in principle. In view of the quashing of the convictions on the sexual charges the suggestion that the concurrence of the sentences was wrong in principle is no longer pursued. But it is still suggested that the judge erred in principle by placing too great an emphasis upon the respondents' inevitable loss of their pension rights and other service benefits.

4. It is well accepted that losses and hardships of this kind suffered by an offender over and above the sentence imposed by the court may be taken into account as mitigating factors: see Thomas' Principles of Sentencing, 2nd Ed., p. 214. What weight they should be given is a matter for the judge's discretion in the particular circumstances. In this instance we are not persuaded that he overstepped the bounds of that discretion.

5. In AG v. Yeung Sau Shing Application for Review No. 21 of 1980 unreported 13th July 1981 this Court observed that:

"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."

6. That is so even where the acts done are of a similar kind, as is shown by the cases drawn to our attention in this application. Four-and-a-half years' imprisonment was held appropriate in Yeung Kwok Fai and Another v. R. Crim. App. 784 of 1980 unreported 2nd July 1981, and 12 months in Yeung Sau Shing. Those were instances of persons bringing pressure to bear on others not to give evidence in court. It is naturally less serious to deceive the police in the hope of exculpating oneself or one's colleagues. Indeed one court has gone so far as to suggest that this may not even amount to an offence: Caine v. R. [1968] NZLR 787 at 790. Certainly prosecutions must be rare. But in this, as in all offences of this nature, police officers are, as this Court observed in Yeung Sau Shing, "in a category by themselves". And again in R. v. Wong Kim Lun and Another Crim. App. 142 of 1989 unreported 23rd June 1989:

"The judge emphasised, rightly, that if police officers fabricate important parts of their reports the whole system- breaks down and the Force is brought into disrepute and distrust. He also rightly expressed the view that attempts to pervert the course of public justice are more serious if initiated by police officers."

Mr. Keane, Q.C., has suggested that this factor becomes less important the further the offence is removed from the offender's duties as a police officer, and that it should have no influence at all where the offence is incidental thereto and the offender "merely happens to be" a police officer. That may be so, but is of no help to the respondents in the present instance. The conduct they were trying to conceal from the investigating officers was committed while they were supposed to be on duty and was inextricably linked to their responsibilities as police officers, as to which, as we mentioned in our earlier judgment, they acted with cynical disregard.

7. For this reason we took the view that the sentences imposed below were manifestly inadequate. In our view the false and misleading statements merited sentences of18 months and the telephonic persuasion of the 2nd respondent, 2 years. But bearing in mind the length of time that both respondents had already spent in prison, we thought it appropriate to make the order we have already referred to.

Representation:

A.P. Duckett, Q.C., S.E. Stone (Crown Prosecutor) for applicant

Desmond Keane, Q.C., A.S. King (M/s. K.K. Chu.& Partners) for 1st respondent

J. Hingorani assigned by DLA for 2nd respondent