HKSAR V.Wong Wai Man

CACC 399/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 399 OF 2005

(ON APPEAL FROM DCCC NO. 340 OF 2005)

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BETWEEN

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Before : Hon Stock JA and Tang JA in Court

Dates of Hearing : 19 April 2006

Date of Judgment : 19 April 2006

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1.In February 2005, this applicant pleaded guilty to an offence of rape.  The complainant in that case was his daughter and for that offence he was sentenced to a term of six years and eight months’ imprisonment.  Prior to the trial for that offence before a High Court judge he took steps to secure from members of his immediate family the production of false statements exonerating him from the rape and it is in relation to those steps, each of which constituted an act tending and intended to pervert the course of public justice, with which this application for leave to appeal against sentence is concerned.

The facts and the charges

2.At the date of these offences the applicant was aged 50 years and he lived with his wife and with his younger son, aged 24 years.  Also concerned with these events were two others: his elder son, Wong Yiu-tung aged 27 years, and his daughter-in-law.

3.What happened was that the defendant was under investigation in the course of 2004 in relation to the rape allegation and after his arrest in January 2004 for that offence, these four family members, that is to say, the two sons, the applicant's wife, and his daughter-in-law, gave a number of statements to the police tending to exonerate him from two charges of rape.  Nonetheless the applicant was subsequently indicted, but prior to the commencement of the trial itself the family members contacted the police and told them that the contents of the earlier exonerating statements had been false and they provided further witness statements which inculpated the applicant.  It was then also revealed that the applicant had exerted considerable pressure upon these family members to provide false statements in his favour and had indeed gone so far as to make them forward statements, that he had drafted, to solicitors acting for him in the rape case.

4.What was revealed was that the applicant was a man given to violence against his family over a period of many years and that the original inaccurate statements provided by the family were born of a fear of his violent behaviour.  In December 2004, according to the facts which were admitted upon the plea by the applicant, he repeatedly confronted the younger son and demanded that he should testify as a defence witness in the imminent trial and should do so in accordance with the contents of a statement which he, the applicant, had written and which asserted, contrary to the truth, that the rape complainant had not made any complaint to the younger son of the rape.  The applicant demanded that the younger son copy and then sign a full statement in accordance with the draft which was to be faxed by the applicant to his solicitors.  This set of facts gave rise to the second charge upon the charge sheet which alleged that between 22 December 2004 and 29 December 2004, with intent to pervert the course of public justice, the applicant did a series of acts which had a tendency to pervert the course of public justice in that the applicant instructed and coerced his younger son to make a false statement to the solicitor acting for the applicant.

5.There was also alleged a specific incident of violence which was the subject of the third charge.  The allegation, accepted by the applicant, was that on 31 December 2004 the younger son was confronted by the applicant who was holding and raising an axe which was about 15 inches in length, with the applicant shouting: “See if I chop you to death or not”.  The younger son retreated and locked himself in his room as the applicant rushed after him.  Shortly thereafter, and with the help of his mother, the younger son managed to escape, hotly pursued by the applicant who was still wielding the axe.  In the event, the son sustained no injury.  The third charge, to reflect these facts, was a charge of attempting unlawfully and maliciously to wound the younger son with intent to do him grievous bodily harm.

6.In late December 2004 much the same happened as between the applicant and his elder son, Wong Yiu-tung.  According to the summary of facts, the applicant threatened him and ordered him to take to his, the elder son’s, home a copy of a draft but false statement to be hand-copied by the daughter-in-law, all for the purpose of testifying as a defence witness in the trial.  Both that statement and a similar one to be completed by the elder son were to be sent to the applicant's solicitors.  All this again happened in the context of suggestions of violence.  In this connection, the offence to which the applicant pleaded guilty was that in the fifth charge, of doing acts tending and intended to pervert the course of public justice by instructing and coercing the elder son to make a false statement to the solicitor acting for the applicant.

7.The sixth charge was also a charge of doing acts tending and intended to pervert the course of public justice and in this case the victim of the offence was the applicant's wife aged 47 years, an illiterate lady.  In her case, the applicant ordered her to make a false statement in relation to the rape trial telling her that if she did not, he would ‘push her down the street from the ninth floor’ and he had handed her a statement for her to dictate into a cassette tape and directed her to memorise it.

8.Finally, as far as concerns the charges to which the applicant pleaded guilty, there was the eighth charge and this concerned acts calculated and tending to pervert the course of justice, this in relation to the applicant’s daughter-in-law.  Her evidence, accepted by the applicant’s admission of the summary of facts, was that on 24 December 2004 he telephoned her after she refused to meet him and made threats against her and that she too was shown a false statement which she was required or asked to sign.

9.There were three charges to which the applicant pleaded not guilty and which were not proceeded with.  Charge 1 was a charge of criminal intimidation against the younger son, directed at general intimidation between August and December 2004.  Charge 4 was a similar allegation of criminal intimidation relating to the same extensive period in relation to the elder son and, similarly, Charge 7 was an allegation of criminal intimidation against the daughter-in-law, this time restricted to an act on 24 December 2004.

10.In summary, therefore, the applicant pleaded guilty to four charges of doing an act intended to pervert the course of justice and one charge of criminal intimidation which related to the occasion when he, the applicant, pursued his younger son with an axe.

11.When the applicant was arrested in January 2005 in connection with these matters, the police found in his possession 21 hand-written false statements and memoranda and it was also shown that statements made by the various family members under the circumstances described had been faxed to the applicant’s solicitors.

The sentences imposed

12.In his reasons for sentence, Deputy Judge Ma referred to the facts set out in the summary of facts and said that this was a very bad case of its kind directed at securing false testimony at the trial of a very serious offence, namely, rape; and that the facts evidenced conduct by the applicant whereby the entire family had been subjected to tremendous fear.  There was, he said, no effective mitigation other than the guilty plea, and he decided that an overall starting point of four years’ imprisonment for four counts of perverting the course of justice was warranted, reduced to a term of 32 months to reflect the plea.  That is the order he made.  In relation to the offence of attempting to wound the younger son with intent, he took a starting point of three years’ imprisonment reduced to two years, again to reflect the plea; eight months of which he ordered to run consecutively to the rest, making a total of 40 months’ imprisonment.  He said that the present offences were not part and parcel of the substantive offence of rape and were different both in nature and as to the time of the commission.  He referred to authority the effect of which was that the sentence for such charges should in principle be consecutive to that for the substantive offence the prosecution of which was sought to be undermined and, albeit taking into account the totality principle, he ordered the term of 40 months’ imprisonment to run wholly consecutively to the sentence for the rape offence, making a total of 10 years’ imprisonment.  The sentence was passed on 1 September 2005, and is the sentence in respect of which this application for leave to appeal is made.

This appeal

13.There are two prime grounds upon which this application is succinctly and ably advanced by Mr Hoosen.  First it is said that the judge wrongly took into account the subject matter of the criminal intimidation charges to which the applicant had pleaded not guilty, namely Charges 1, 4 and 7.  The summary of facts necessarily alluded to the history of threats and the aura of violence in the context of which the acts tending to pervert the course of justice took place.  It was the factual matrix within which those offences took place.  In a sense, therefore, the criminal intimidation charges were otiose.  Of great significance is the fact that the facts contained in the summary of facts were accepted by the applicant, and it was not asserted by him in mitigation that the assertion of a threatening atmosphere was inaccurate.  Moreover it is specifically to be noted that in each of the charges of doing an act tending and intended to pervert the course of public justice, the particulars allege not just an instruction to make a false statement but also coercion.  It is difficult in the circumstances to see on what basis the coercive acts of the applicant could probably be ignored by the sentencing judge.  There is therefore little in this particular ground.

14.Secondly, it is said that the totality principle was not fairly applied by the judge in that the overall sentence of 10 years’ imprisonment was manifestly excessive and wrong in principle.  There was nothing wrong in principle about the judge’s approach.  As for the length of sentence in its final effect, the judge was quite right to say that these offences were grave indeed.  Where a man seeks to cover up the commission of a grave offence committed by him against a member of his family by forcing other members of that family to make false statements to solicitors to be used to pervert justice, he commits a further and most serious act.  Given the nature of the proceedings that he sought to pervert and the number of people upon whom he exerted unlawful pressure, coming close, it would seem, to success, and the sway of terror he held over the family to give effect to his plans, we fail to see how the overall sentence can be said to be manifestly excessive.

15.Accordingly, this application for leave to appeal against sentence is dismissed.

Mr Vincent Wong, SGC, of the Department of Justice for Respondent

Mr A A Hoosen instructed by Francis Kong & Co., assigned by D.L.A., for Applicant