HKSAR v. Tin Sai-fung, Raymond and Another

DCCC193/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 193 OF 2009

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

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

Before: H H Judge Andrew Chan

Date: 16 November 2009 at 4.32 pm

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

Reasons for Sentence

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

1.Similar to my reasons for verdict, I first deal with the 2nd charge.  In my view, the 2nd charge is more serious than the 1st charge.

2.In the 2nd charge, D1 was assigned to conduct a criminal investigation, albeit a minor traffic accident.  He, however, allowed the substitution of the offending driver.  He not only failed to initiate any criminal investigation against the offending driver for offences such as driving without licence or third party insurance, but also recommended to his superior to take no further action in the case.

3.As a police officer, D1 was tasked to maintain law and order.  He failed.

4.Perverting the course of public justice was and is always a serious offence.  It is particularly even so when it is committed by a police officer.  A sentence other than immediate imprisonment could only be justified in exceptional circumstances.

5.I understand, in certain situations, police officers are given discretions to allow a party an opportunity to come to settlement.  I would imagine, however, they are only permitted to do so unless the police officers are satisfied that the parties are genuine parties to any traffic dispute, otherwise it is their jobs and responsibilities to identify the true driver.

6.Traffic police officers may be very busy and shoulder a heavy case load.  That happens all the time in both the public and private sector.  That is, however, no excuse for transgressing the law.

7.D1 joined the force in 1983, he received over 60 commendations by his superior.  Amongst those, the commendation in 1996 stands out.  D1 was commended for his courage, initiative and devotion to duty during an armed robbery where two culprits were killed.  Credit will be given for that. 

8.By this conviction no doubt D1 will be dismissed by the force.

9.I accept D1, in relation to both Charge 1 and Charge 2, that he received no monetary benefits.  He was no more than helping his friends and colleagues. 

10.Such practices and situations, if are allowed to exist, soon the public will soon lose its confidence in the police force.  Society will descend into chaos.  The integrity of our police force is therefore absolutely vital and plays an important role in maintaining one of our society’s core values, the rule of law. 

11.There is no guideline for perverting the course of justice as circumstances in each case vary greatly.  However, as I have said, unless there are abnormal and exceptional circumstances, immediate imprisonment is inevitable.

12.There are no abnormal and exceptional circumstances in D1’s case.

13.Having considered the facts of the case and past authorities, I am of the view that the appropriate starting point in respect of Charge 2 is one of 18 months’ imprisonment.  D1 is found guilty after trial, as such, he is not entitled to any discount.

14.For the 2nd charge, D1 is therefore sentenced to 18 months’ imprisonment.

15.In relation to the 1st charge, I accept that:

(i.) Both parties to the traffic accident all along intended to settle their dispute, which indeed was ultimately settled;

(ii.) The statement of PW1 was of little assistance to the prosecution;

(iii.) An actual perversion was not resulted. 

There was, however, no excuse for D1 in submitting false and misleading photographs.

16.Having considered all the facts and circumstances of the case, I am of the view that the appropriate starting point for the 1st charge is one of 9 months’ imprisonment.

17.The two offences relate to two separate distinct incidents.  The party, location and time are entirely different, I do not see any justification in ordering the two sentences to run either wholly concurrently or even partially concurrently.  The two sentences are therefore ordered to run consecutively and come to a total of 27 months’ imprisonment.

18.As I have mentioned earlier, D1 received some 60 commendations for his past services.  I give him credit for that.  As such, I reduce the 27 months’ imprisonment to one of 24 months’ imprisonment.

19.D1, please stand up.  For the two offences, D1 stands convicted, he is sentenced to 2 years’ imprisonment.  Right, you may sit down, thank you.

20.For D2’s case, D2 similarly is convicted after trial for the 1st charge. 

21.In my reasons for verdict, D2 was only found to participate in the conspiracy on or after 27 March 2007, so he did not participate at the inception stage. 

22.I accept also that D2 did not personally benefit from his participation.  In this case, it was more to do with misguided loyalty and friendship.  It was this rather than monetary benefit that led him into the present predicament.

23.Having said that, in Attorney General v Chan Siu Wai, CAAR 11 of 1996, misguided loyalty and inexperience are not good reasons for suspending a custodial sentence. 

24.D2 set out deliberately to mislead his superior:

(i.) causing PW1’s statement to disappear.

(ii.) stating in his investigation report that PW1 had not given any statement and did not wish to do so.

25.The end result may be the same.  However, such practices are totally unacceptable.  The discretion and authority to prosecute rests with D2’s superior, not D2.

26.Insofar as the false and misleading photographs are concerned, there is little evidence to suggest that D2 was aware of the “untruthfulness” of these photographs.  There was little evidence on this aspect of the case against the 2nd defendant.

27.On the last occasion, I adjourned his sentence pending a Community Service Order suitability report.  I also warned the 2nd defendant that despite the recommendation, all sentencing options, including immediate custodial sentence, would be open.

28.Having perused the content of the report and considering all circumstances of the case, I do not think this is a suitable case for placing D2 on community service. 

29.D2 claimed to the Probation Officer that the statement in question was simply lost in his unlocked drawer, thus leading to his dishonest report to his supervisor with the intention to cover up his negligence (paragraph 9 of the report).

30.For reasons given in my verdict, I do not accept that.  The excuse put forward again by D2 demonstrates to me that there is little remorse exhibited by him.  One of the important criteria for performing community service is the defendant’s own sense of remorse.  Unfortunately, I cannot see any.  This leaves me with no option but one of immediate custodial sentence.

31.Given the lesser extent of D2’s involvement and the fact that no actual perversion had been caused, I am of the view that the appropriate starting point in D2’s case is one of 6 months’ imprisonment. 

32.Although D2 has been given 15 compliments from his superior officers, they are not such that the sentencing court can give any credit or discount.  D2 is convicted after trial, no further discount can be given.

33.D2, please stand.  For the sole offence, D2 stands convicted.  He is sentenced to 6 months’ imprisonment.

D2's application for leave to appeal against his conviction dismissed by Court of Appeal. Please refer to CACC407/2009 dated 6 July 2011