Mohammad Yusuf v. The Queen
Read the full judgment text of CACC 553/1982 on BabelCite. This Court of Appeal judgment was delivered on 6 July 1982.
1. The appellant has been some twenty years in the Police Force in the last eight of which he held the rank of sergeant.
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CACC000553/1982 Sentence - Conduct of Defence - Serious accusations Made against Police - Manufacturing own Injuries to discredit Police -- Not a Ground for Imposing a Heavier Sentence than, but for the accusations, would have been Passed.
BETWEEN
_______________ Coram: de Basto, J. Date: 6 July 1982 __________ JUDGMENT __________ 1. The appellant has been some twenty years in the Police Force in the last eight of which he held the rank of sergeant. 2. He was charged with three conspiracies, the first being with two named individuals in 1977, the second being with one of the previously named individuals in 1981 and the third, and the most serious, being with one of the same individuals between 1976 and 1981, to defraud the Transport Department officers of the Hong Kong Government by inducing them by means of false documents statements and representations (being forged Pakistani driving licences, Transport Department application forms for Hong Kong driving licences with false information therein) to issue Hong Kong driving licences to persons who were not entitled to them. 3. Mr. Sparrow conceded the offences were serious ones. As the learned trial magistrate said, ''The driving licences system is to protect the community from incapable drivers. By (the appellant's) acts, for private gain, this sergeant of police put the community at risk". 4. Under the "Direct Issue Procedure" which operates under Regulation 10 of the Road Traffic (Driving Licences) Regulations made under the Road Traffic Ordinance the holder of a valid overseas driving licence issued by a competent authority in certain specified countries (including Pakistan) may apply for a Hong Kong driving licence without having to undergo a driving test. 5. In January 1981 the I.C.A.C. operating through an informant, a Pakistani, obtained certain information. 6. In June 1981 investigating officers of the I.C.A.C. rent to the Lok Ma Chau Police Station at the border in the New Territories. There they arrested the appellant and searched his locker, car and his flat at the Police Married Quarters at Fanling. In the sitting room of the flat the investigators found a tin box which contained three chops, a date stamp bearing the date the 19th May 1979, an ink pad and a bottle of ink. The three chops were (1) Traffic Department, Pakistan, Rawalpindi (2) Licencing Authority and (3) Paid. 7. The appellant was asked about these items and the appellant denied ownership and claimed they had been given to him to keep by another member of the syndicate, Nazar Hussain. Expert opinion was that the ink on the ink pad and the impressions on the Pakistani Licence obtained from the Transport Department in the name of the I.C.A.C.'s informant were chemically identical and that the impressions on that licence could have been made by the chops found in The appellant's flat. 8. The appellant pleaded not guilty to all three charges but after the trial magistrate had ruled that a cautioned statement made by the appellant was admissible in evidence as being free and voluntary, the appellant changed his plea to guilty on all three charges. 9. The first additional ground of appeal was that the learned magistrate had placed great weight upon the fact that the appellant had played the primary role in the conspiracy when this was not the only inference to be drawn from the facts and the magistrate should have drawn the inference most favourable to the appellant. The learned magistrate, when passing sentence, said that the appellant was the main conspirator and implementer in this case. In his "Reasons for Sentence" the learned magistrate said he was satisfied from the appellant's position, the location of the exhibits and all the circumstances that his was not a subsidiary role. I am satisfied that there was ample evidence on which the magistrate could have properly reached the conclusion that the appellant had played a major rather than a subordinate role. 10. The third and fourth grounds of appeal were that the magistrate did not take into sufficient account the effect of the imposition of the sentences upon the appellant's family and that the circumstances did not warrant the passing of a deterrent sentence. I do not think there is any merit in the first, third and fourth grounds. 11. During the voire dire the appellant made serious allegations against the investigating officers including accusations of violence, deprivation of food and of an interpreter and allegations that certain parts of his statement were composed by one of the officers - there was also an allegation that the I.C.A.C. Guard Commander had improperly refused to allow the appellant to write, or alternatively persuaded the appellant not to write, a complaint in the complaints book. 12. The magistrate in his Statement of Findings said he found there was no truth in these allegations and he made a number of findings contrary to the allegations including that the appellant had manufactured his own injuries. Without question, the learned magistrate formed (as he was entitled to do) a most unfavourable impression of the appellant's credibility. 13. The appellant was sentenced to 18 months imprisonment on the first and second charges and to two years imprisonment on the third charge. 14. Under his "Reasons for Sentence" the learned magistrate referred to a series of deliberate frauds over a long period, at least since 1976 and comprising at least some 15 individual instances. He mentioned that the frauds were not technical offences, that the appellant was a sergeant of police of many years standing whose duty was to uphold the law and protect the community and who, for private gain, had deliberately and blatantly broken the law and deprived the community of the protection it should have had. The learned magistrate then went on, still under his "Reasons for Sentence" to refer to the appellant's "very grave allegations" against the two interviewing I.C.A.C. officers and lesser ones against the Guard Commander, and to the faking of injuries by the appellant on himself in order to support these totally false allegations. 15. The second of the additional grounds of appeal reads:
16. Mr. Lyons for the respondent advanced the view, attractive at first sight, that the learned magistrate kept emphasizing that he did not believe the allegations because he wanted to vindicate those officers whose conduct and credibility had been impugned. But it was pointed out by Mr. Sparrow (Mr. Lyons not dissenting) that the magistrate in ruling the cautioned statement admissible had gone into "unusual" detail and had said, in effect, what he repeated later when he passed sentence and later in his "Statement of Findings" and "Reasons for Sentence". Mr. Sparrow informed the court (Mr. Lyons again not dissenting) that the allegations against the police were never published and that those who attended court (including the officers concerned) at the time the magistrate gave his ruling on admissibility would have been left in no doubt that the magistrate did not believe any of the appellant's allegations. For myself, I might possibly have taken a different view of the matter if the learned magistrate had confined his comments on the accusations he found to be untrue to his Statement of Findings but, unfortunately, he again made reference to the false allegations under the heading of "Reasons for Sentence". 17. When passing sentence the magistrate said, inter alias:
18. Mr. Lyons, on the words "those who ask for mercy must show it" somewhat ingenuously, I thought, suggested that what the learned magistrate was, in fact, saying was "You won't get an increase in sentence because of the allegations but you can't expect a discount either". 19. In mitigation Mr. Sparrow had told the magistrate that the appellant was "remorseful". It occurred to me that the learned magistrate kept emphasizing the false accusations to show how equally false were the appellant's feelings of remorse - if he had felt any remorse whatever he would never have made what the learned magistrate regarded as atrocious and unfounded allegations against senior officers who were acting perfectly properly. 20. However, having regard to what the magistrate said when he passed sentence and to what is contained in his "Statement of Findings" and "Reasons for Sentence", it is difficult to escape the conclusion that the appellant's false accusations as well as the manufacturing of his own injuries to discredit the investigating officers, played some part in the learned magistrate's assessment of the proper sentence to impose. 21. It is well-settled law that in pronouncing sentence a judge or magistrate must not take into account accusations made by an accused against the police (or against anyone else for that matter) or the way an accused has otherwise run his defence. (See R. v. Skone(1) ; R. v. Harper(2) ; R. v. De Haan(3) ; R. v. Lau Ping Kwai(4) ; R. v. Siu Hei-nam and others(5) . 22. Only the second ground has any merit. I do not know what sentence the learned magistrate would have passed had he not been over-conscious of the unjustified accusations against the police. 23. The matter of sentence is, therefore, at large before this court. 24. Notwithstanding that the learned magistrate was over-influenced by the appellant's false allegations, I am satisfied that the sentences passed by the magistrate were appropriate in the circumstances of this case and the appeal is therefore dismissed. Representation: Solicitors: Stevenson & Co. for Appellant. Mr. David Sparrow for the Appellant. Mr. D. Lyons for the Crown/Respondent. (1) (1967) 51 Cr. App. R. 165 (2) (1968) Q.B. 108 CA (3) (1968) Q.D. 110 CA (4) (1962) H.K.L.R. 584 (Full Court) (5) (1979) H.K.L.R. 188 (Full Court) |