HKSAR v. Ng Tai Sing and Another

DCCC1209/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1209 OF 2008 

----------------------

----------------------

Coram: Deputy District Judge A. Kwok

Date: 14^th September 2009

--------------------------

Reasons for Sentence

--------------------------

1.The 1^st Accused, NG Tai-shing was convicted after trial of one count of  “ Preventing the lawful burial of a corpse” (Charge 1) and the 2^nd Accused, CHEUNG Ngai-kwan was convicted on her own plea of another count  “Conspiracy to pervert the course of public justice” (Charge 2). The mitigation and sentence of the 2^nd Accused was adjourned until the conclusion of the trial of the 1^st Accused. In the meantime, I called for a Community Service Order (“CSO”) Report and her bail was extended.

The facts of Charge 1

2.The facts of Charge 1 have been sufficiently dealt with by me in the Reasons for Verdict and I do not intend to fully repeat here. Suffice it to say that after his arrest, the 1^st Accused freely admitted to the police in P13 under caution that at the material times, LAW joined him and his 2 friends and they all boarded a motorized sampan (“the boat”) to go to Ling Ding Island for fun. The 1^st Accused steered the boat and LAW was standing at the front of the boat when it suddenly collided with a floating buoy near Ap Li Chau Bridge, Aberdeen and the impact caused Law to fall backwards onto the boat. LAW then became unconscious and was bleeding on the head. The 1^st Accused tried to wake LAW but the latter showed no response. The 1^st Accused said he intended to go to the Marine Police Base at Shum Wan but he did not as he became terrified. Out of panic, he said he continued to steer the boat all the way towards Lamma Island. Later, the boat left Hong Kong waters and LAW showed no sign of life and his body became cold. He said that he then realized that LAW had died and he pushed the body into the sea because he feared that the body might be discovered by the Public Security Officers of the mainland should they come to the area for patrol.

The facts of Charge 2

3.According to the Summary of Facts as agreed by the 2^nd Accused, PC 58873 (PW3) was tasked to investigate the case. PW3 checked the call record of the mobile phone of LAW and he found that 2 calls were made to LAW by mobile phone number 69329878 at respectively 0143 and 0149 hours on 17.11.2007. This phone number was found to be subscribed by the 2^nd Accused on 11.9.2007 and it was later changed to another number 91480196 on 19.11.2007. PW3 later successfully contacted the 2^nd Accused by calling 91480196. In a subsequent interview at her address, she told PW3 that she had subscribed the phone number 69329878 in September 2007. Thereafter she received many nuisance phone calls.  She then requested the phone company to change the number in November 2007. The 2^nd Accused said she had lost the relevant subscription documents. She also told PW3 that she did not know LAW and she had never heard about his name.

4.On 15.4.2008, the 2^nd Accused was invited to go to the police station and formally provide a witness statement in which she repeated the above information to PW3.

5.Given the information provided by the 2^nd Accused, the police investigation into the disappearance of LAW came to a standstill. It was only later due to the fresh evidence of KWOK Tai-shing (PW4) that the police knew that the mobile phone no. 69329878 was in fact used by the 1^st Accused at the material times the 1^st Accused was arrested.

6.The police later also arrested the 2^nd Accused on 14.8.2008 for “Misleading the police by providing false information”. Under verbal caution, she said she was just helping the 1^st Accused who taught her to say such things to the police.

7.Later in an interview with DPC 45936 (PW6), the 2^nd Accused further admitted under caution that:

1) Although the phone No. 69329878 was subscribed by her, it was actually used by the 1^st Accused throughout, and she subscribed it for him at the request of her friend LO Chi-sun (LO);

2) After she received the phone call from PW3 who enquired with her about the number, she contacted LO and later she met LO and the 1^st Accused for dinner. She asked the 1^st Accused what happened to the phone number. The 1^st Accused said nothing untoward happened. However he told her that she should tell police that the number was exclusively by her and she had always received nuisance phone calls and if the police should ask her anything on other matters, she should say she had no knowledge;

3) LO also told her that when she later gave a witness statement to the police, she should be flexible and just make up a false story.

Mitigation

8.The 1^st Accused has two previous records of “Possession of dangerous drugs” in 2005 for which he was only fined. He is aged 49 and was born in Hong Kong. He only received education up to primary 4 level. After leaving school, he worked as a fisherman and later became a construction worker between 1985 and 2002. After an industrial incident, his waist was injured and he ceased working and has been relying on public assistance since 2004. He is married with two young daughters now aged 7 and 12. Mr. CHEUNG submitted that his client only committed the offence out of fear and stupidity and he also urged the court to give credit for the conduct of the defence as most of the prosecution case was not challenged.

9.The 2^nd Accused is 44 and has a clear record. She was born in the mainland and had only received primary education there. She came to Hong Kong with her family in 1979 and she got married in 1987 with 3 daughters now aged 22, 17 and 13 respectively. Her husband was engaged in the wholesale of fishes and she assisted her husband’s work. She later had a divorce with her husband in 2001 and she started to cohabitate with a boy friend and he supported her living. According to the CSO report, she told the Probation officer that she liked to go to drink beer and chatted friends at night in cooked food stall in Wanchai. It was during those occasions that she came to know the 1^st Accused through a common friend LO. She just helped out her friend and involved in the trouble of the law. After she was charged, she separated with her boy friend and now worked as a waitress and lived with the eldest daughter. Mr. Halley stressed the fact as he did in the last hearing that his client was first only charged with “Misleading the police by providing false information” (“the original offence”) by the police under s 64 of the Police Force Ordinance, Cap. 232. The maximum sentence is a fine of $1,000 and an imprisonment for 6 months only. The prosecution only chose to charge his client for a more serious offence of “Conspiracy to pervert the course of public justice” (“the present offence”) as the lesser offence was already time-barred. He therefore urged me to consider this and submitted that the CSO, if imposed, should be of a shorter duration than it was recommended which was 140 to 200 hours.

Consideration

10.The real cause of death of LAW who has gone missing since 17.11.2007 remains a mystery today as the circumstances surrounding his death lie only in the mouth of the 1^st Accused when he gave an account of how it happened in the cautioned interview after he was arrested some 9 months later. The account given by the 1^st Accused was very dubious, to say the least. Apart from saying he was terrified, there was no good reason why the 1^st Accused did not steer the boat to the nearby Marine Police Base at Shum Wan as he said he intended so that emergency medical service could be made available to LAW. The 1^st Accused stated that he later pushed the body of LAW into sea as he feared that the dead body might be discovered by the Public Security Officer of the mainland. If that was the case, it made no sense for him to steer away from Hong Kong waters towards the direction of the mainland in the first place. The acts of the 1^st Accused strongly indicated that he also feared that the body would be discovered by the Hong Kong Police.

11.That said, I accept that apart from his own confession, there is no evidence before me to suggest that LAW’s death was as a result of any unlawful killing. This, however, is the gravamen of the offence because the prevention of the lawful burial of the corpse has the effect in reality of denying the proper investigation by the authority into the cause of the death of LAW in this case.

12.Even proceeding on the facts as disclosed by the 1^st Accused as I am bound to when sentencing him, an aggravating factor for Charge 1 is that that there was no attempt by him who was in charge of the boat to steer the boat to the police marine base or call for any medical assistance at once. If that had been done promptly, LAW might have lived. Instead, he continued to steer the boat away from Hong Kong waters and later when he said he found LAW was dead already, he sought to cover up by disposing the body this way and he also sought to further cover up when he later taught the 2^nd Accused to tell lies to mislead the police investigation. In this way, the 1^st Accused had clearly engaged in an exercise doing whatever he could to ensure that such investigation as might take place into the cause of the death of LAW would be foiled. (see para.13 HKSAR v. LEUNG Sau-kuen CACC 54/2003)

13.The 1^st Accused was convicted after trial and had no sense of remorse. Based on the above, I consider an appropriate sentence should be an imprisonment for 3 years. I however reduce the sentence by two months in recognition of the conduct of the defence which saved the court’s time in the trial. The sentence that I shall impose on the 1^st Accused is therefore 34 months’ imprisonment.

14.What I said about Charge 1 in relation to the 1^st Accused would have a bearing on the consideration of the sentence in relation to the 2^nd Accused had it been the case that she knew all along what was going on and the 1^st Accused was covering up the fact that LAW’s body was pushed by him into the high seas. However, there is no evidence before me to suggest that she has the knowledge.

15.Further, the prosecution also conceded that the present offence which is far more serious is not the original offence that they have intended to laid against the 2^nd Accused. That being the case, I accept that the present recommendation in the CSO report to perform 140-200 hours is on the high side, taking into account the maximum sentence prescribed under the original offence.  As the 2^nd Accused is willing to perform community service and based on the recommendation in the report that she is a suitable candidate, I order her to perform a CSO of a lower duration of 80 hours accordingly.

(The effect of the breach of CSO was explained and the 2^nd Accused understood the legal consequences)