HKSAR v. Sin Ki Hoi

CACC 380/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 380 OF 2007

(ON APPEAL FROM DCCC NO. 771 of 2007)

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BETWEEN

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Before:   Hon Stuart-Moore VP and Wright J

Date of Hearing: 24 February 2009

Date of Judgment: 24 February 2009

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 18 October 2007, the appellant pleaded guilty before District Judge Mackintosh to two counts of conspiracy to pervert the course of public justice, contrary to Common Law and section 159A of the Crimes Ordinance, Cap. 200.

2.The appellant was sentenced on the same day to concurrent terms of 16 months’ imprisonment on each count against which he now seeks leave to appeal.  We can indicate straightaway that we shall give leave and treat the hearing as the appeal having regard to subsequent events in this case which have satisfied us that the appellant should receive a larger discount in sentence than is normally given to those who plead guilty.  The judge had taken a 2-year starting point for each offence and discounted this by a third on each charge to reflect the appellant’s guilty pleas. 

3.The facts were somewhat unusual.  The two conspiracy charges were in identical terms save for the dates, which covered altogether a nine-month period between August 2005 and May 2006, and the names of the co-conspirators, Yuen Sun-wing (in charge 1) and Kwan Fat-cheong (in charge 2).  The particulars of each charge admitted by the appellant were that he had conspired “to pervert the course of public justice by falsely representing to the Hong Kong Police Force that he had been the driver of taxis which had been detected committing road traffic offences whilst being driven on public roads”. 

4.The appellant was himself a part-time taxi driver but he had entered into an agreement with Yuen and Kwan who were, respectively, the operators of Silver Dragon Taxi Company Limited and Shun Po Motors Company which managed and hired out taxis on behalf of their owners, to stand in as a substitute for other taxi drivers who had committed traffic offences which, in turn, had led to the service of ‘Pol. 571’ forms requiring notification to the police of the identity of the particular driver at the time when the offence was committed. 

5.The appellant used to hire his taxi from Yuen and, initially, he received free meals or his rental fee was waived in return for his assistance.  Later, Yuen paid the appellant between $300 and $500 for each driving offence point he incurred.  Between August 2005 and April 2006, the appellant was named by Yuen as the offending driver on six occasions, each time for driving in excess of the speed limit.

6.Similarly, with the 2^nd charge, after the appellant was referred by Yuen to Kwan, he again acted as a substitute for taxi drivers who had committed road traffic offences while driving taxis for Shun Po Motors Company.  Between January 2006 and May 2006, the appellant was shown as the offending driver on 14 occasions, in respect of speeding or traffic light offences.

7.Arising from the two conspiracy offences, the appellant incurred a total of 72 driving offence points and fines of $8,700 but, in return, he had received $21,600 from Yuen and $36,000 from Kwan as his reward.

8.The basis of this application is the assistance the appellant has given to the ICAC in identifying his two co-conspirators and in giving evidence against them in a subsequent trial which resulted in their conviction.  Indeed, it was because this ground of appeal seemed likely to succeed, in the event that he testified as promised, that I gave the appellant bail on 24 June 2008 to enable him to achieve some of the benefit he was seeking by his agreement to testify as a prosecution witness.  Had he not been given bail at that time, he would have completed his sentence before his appeal was heard.

9.We are satisfied that the appellant has fulfilled his promise.  The trial of Yuen and Kwan (DCCC 376/2008) took place before Deputy District Judge Sham in November 2008.  The trial judge accepted the appellant’s evidence after consideration of his credibility.  On 11 December 2008, Yuen and Kwan were, respectively, sentenced to 4½ years and 4 years’ imprisonment.

10.It is apparent, therefore, according to the usual practice where information has been followed by a statement in writing and the provision of truthful testimony as a prosecution witness, that the appellant is entitled to be given a discount of 50% on his sentence. 

11.We should add, however, that while the appellant’s discount must now be increased, we were surprised and somewhat concerned at the leniency of the appellant’s sentence for such serious offences so that the appellant’s entitlement to an increased discount does not indicate any form of approval for the sentence imposed on him.

12.It seems to us that the appellant received under half the sentence appropriate for conspiracies such as these when it is plain they called for deterrent sentences.  This is a view which ought to have been reinforced by mitigation provided to the judge which caused him to say:

“4.     I am alarmed to be told by Mr Li on your behalf that this practice is quite common amongst professional drivers and that there is a market rate of $1,000 per demerit point which is normally paid. If that is so, then the warning had better go out loud and clear to professional drivers tempted to act in this way that anyone who uses the services of a substitute to avoid the consequences of committing a road traffic offence is liable to go straight to prison.”

13.The effect of the discount we shall give to the appellant is that he should not have to return to custody.  This is so because he had already completed eight months of his sentence by the time he was bailed in June 2008 and, at that time, the appellant’s earliest release date was 7 September 2008.

14.Accordingly, the appeal is allowed and we reduce the appellant’s sentence to concurrent terms of 12 months’ imprisonment on each charge.  For the avoidance of any doubt, it is our intention, by taking this course, that the appellant should be released immediately.

Ms Ada Chan, SPP, of the Department of Justice, for the Respondent.

Mr Peter Cahill, instructed by Messrs Michael Cheuk, Wong & Kee, assigned by Director of Legal Aid, for the Appellant.