The Queen v. Wong Wai Hung

CACC000396/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Cons, V. -P., Silke & Clough, JJ. A.

Date of Hearing: 3rd December 1986

Date of Judgment: 3rd December 1986

___________

JUDGMENT

___________

Silke, J. A.:

1. The Applicant, Wong Wai Hung, was charged together with one Kwan Kam Wing with the conspiracy to pervert the course of justice. The particulars of which were that he deliberately concealed the true facts in relation to the smoking of dangerous drugs and possession of apparatus fit for that purpose by one 'long Shun Yat and one Chu Man Yu.

2. He was tried before Mr. David Yam, sitting as a Deputy Judge of the District Court, and convicted as was his co-accused. He sought leave originally to appeal against both his conviction and his sentence. He has abandoned the application in respect of conviction. We are, therefore, concerned only with the matter of sentence.

3. Briefly, the facts were, on the evidence produced which was accepted by the trial judge, that on the 10th February of this year the two accused - one of whom was a serving Police Constable of the Royal Hong Kong Police Force, the other an auxiliary Police Constable - went to a storeroom in a Games Centre and there they found two persons, Wong Shun Yat and Chu Man Yu, smoking dangerous drugs. There was various paraphernalia in connection with the smoking, which was by the chasing the dragon method, such as a fifty dollar note which was used as a funnel for the inhalation of the drugs, the drugs themselves and a packet containing a further quantity which was on the table.

4. Wong said to the Applicant: "Can you give me a chance? It is Chinese New Year" and the answer to that was: "I can give you a chance only if you know what to do". There was then a gesture of rubbing the thumb and the four fingers together which was interpreted correctly by Wong as meaning the payment of money. There was a discussion as to how much money should be paid and there was an offer by Wong of "ten cents" - shown to mean $1,000. The reaction was that this, because there were two constables, was not enough. $2,000 was suggested. Eventually $3,000, was also suggested as there were going to be some delaying the payment as Wong had to go away to get the money.

5. The man Chu was to take the blame. He was handcuffed and arrested. There was some discussion as to how Wong would be released without its appearing to the persons in the Games Centre that he himself was not under arrest. Chu's long scarf was taken and put over the hands of Wong to give the appearance of his having been arrested and in handcuffs. Outside, Wong was released and at his, suggestion, the actual sum to be paid was reduced to $2,500.

6. Wong, upon his release, had made a report to the Independent Commission Against Corruption having gone to see his "brothers", for he was an acknowledged triad member, and they having suggested that, as one person had been arrested, he should not make the payment. The implication being presumably that if one person had not been arrested, payment would have been made without trouble.

7. There were various telephone calls between Wong and the Applicant. The Independent Commission taped some of those phone calls, Wong was provided with a tape recorder on his person. There were two meetings at two restaurants. In the second restaurant, the Kam Pik Restaurant, a sum of $2,500 which was provided by the Independent Commission to Wong was handed over to the Applicant. The Applicant was thereupon arrested and the money was found in his pocket.

8. Mr. Lunn, who appears for the Applicant in this Court today, has drawn our attention to a threat which was made in the course of the incident that if the money were, not paid over, then Chu would be implicated to a greater extent by having the large packet of drugs attributed to him. This threat was not carried out. Chu was charged with two offences which did not concern that large packet. It might be thought that the fact that the Applicant did not make an appalling situation even worse does not particularly assist him. His whole conduct remained a total dereliction of duty.

9. The simple Ground of Appeal which has been argued before us is based on a portion of the judge's Reasons for Sentence. It is said that there the trial judge erred in having regard to the conduct of the defence and sentenced the Applicant because of the manner in which he conducted his defence.

10. The trial judge had noted the very serious nature of the offence: that the two persons before him were policemen. He then went on in relation to the Applicant:

"D1, after I heard your evidence, I had the firm view that you're not even unremorseful .... "

- I would interpolate I think that to mean "remorseful" -

11. "but you protested your innocence shamelessly."

The word "shamelessly" also appears in the Reasons for Verdict when the trial judge described the Applicant, in the giving of his evidence, as arrogant and that the evidence itself was, as the trial judge put it, "all over the place" - by which I think that he meant it impregnated the entirety of the prosecution case. He made reference to his giving his evidence in a "shameless" manner.

12. We think that the expressions used by the judge were a somewhat florid way of saying that the Applicant did not have remorse and that he is not, of course, entitled to the consideration which a plea of guilty would have gained him.

13. In relation to the sentence itself of two years; there was also a fine of $7,500 imposed which was to be paid within 21 days or in default three further months' imprisonment, Mr. Lunn says that the trial judge started too high. He has drawn again our attention to two particular cases. One was decided as long ago as 1974⁽¹⁾ where two constables had solicited a bribe of $15 from the Manager of a opium divan. This seemed to be in the general run of protection money regularly paid. It was there said that the minimum sentence for corruption in the circumstances such as that must be a custodial sentence of 12 months. That case was a review case and the existing sentence of 3 months was set aside and 12 months was substituted. Since then the activities of the Independent Commission Against Corruption have increased. People in Hong Kong will not tolerate this type of behaviour and in particular from members of the Royal Hong Kong Police Force.

14. A more recent decision was that of Lam Hon Kwan⁽²⁾ where civilians had approached a person accused of robbery and promised, in return for money, either to give false evidence or not to give evidence at all. They had been sentenced to 3 years' imprisonment. Another Division of this Court reduced that to 18 months on the basis of pleas of guilty by some of them and their age. It was said in the judgment of the Court:

"First, save in exceptional circumstances an immediate custodial sentence is called for and should be imposed; secondly, the length of that custodial sentence must vary in accordance with the circumstances of the case."

The example was given of a senior police officer who was concerned with considerable sums of money in relation to bribery. In such case a very substantial period of imprisonment was suggested.

15. The matter of the non-activation of the threat does not really redound to the credit of the Applicant here. This case involved the suppression of evidence for at the time of entry to the room there were two sets of paraphernalia for the smoking of dangerous drugs. One was thrown away in order to substantiate the arrest of a single person and to avoid, as should have been done, the arrest of both. The bag of drugs was never found. It was seen to be put into the Applicant's pocket and from thereon its history becomes dim.

16. In all the circumstances of this case, we are not prepared to say that the sentence was in any way excessive or in any way too high. In these circumstances, the application for leave to appeal against sentence is refused.

(1) A.R. 3/1974 (unreported)

(2) Criminal Appeal No. 525 of 1984

Representation:

Mr. Lunn, Esq. (C. K. Mok & Co.) for Applicant

H. Macleod, Esq. for Crown/Respondent