Case Document

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CACC000784/1980

4½ years for conspiracy to pervert the course of justice upheld.

IN THE COURT OF APPEAL

	1980 No. 784
	(Criminal)

BETWEEN
	YEUNG KWOK FAI	Appellants
	LAW KAM MUN
	and
	THE QUEEN	Respondent

Coram: Cons, J.A., O'Connor and Silke, JJ.

Date of Judgment: 2nd July 1981

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JUDGMENT

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Cons, J.A.:

1. The proceedings today were originally brought by four applicants, all of whom had been convicted of conspiracy to pervert the course of justice. The applications were for leave to appeal against both sentences and convictions, but all have been withdrawn now save one which is an application for leave to appeal against sentence.

2. The applicant is, or perhaps was, a Senior Inspector of Police, attached to the Complaints Against Police Officers Unit. At the time in question he was engaged in investigating a complaint brought by one Mr. SHUM Wai-ming. Mr. Shum complained that he had been falsely accused of possession of an offensive weapon in that evidence against him had been falsely fabricated by three police officers. The trial judge described Mr. SHUM Wai-ming as a thoroughly unsavoury character, which is a description nobody could fault. Although still aged only 29 he has a record of 31 previous convictions. Nevertheless some substance must have been accorded to his complaint, for we are told that no prosecution was brought against Mr. Shum for possession of an offensive weapon while a prosecution for perverting the course of justice was brought against the three officers concerned.

3. The trial date for that case was set on the 10th March, in the Victoria District Court. Before that date, however, the appellant together with others, approached Mr. SHUM Wai-ming with a view to his not appearing to give evidence at the trial, It is not necessary to go into the details of all that then occurred, or the meetings that then took place between Mr. Shum and the applicant and his friends. It is sufficient to say that the applicant offered Mr. Shum $30,000 not to appear in court on the date of trial and that he coupled with that offer a hint that trouble might befall Mr. Shum's family, or that there might even be some danger to Mr. Shum's own life, if he did not cooperate. Mr. Shum accepted that offer and did not appear at the trial.

4. The scheme was only partly successful because on the 10th May the Crown, instead of offering 'no evidence', as the conspirators had hoped, entered a nolle prosequi, the result being of course that if Mr. Shum could later be found, the prosecution could again be launched against the three police officers. The conspiracy therefore had to go further. It was suggested that Mr. Shum should retract to some extent the original statement he had made and rephrase it so that it no longer incriminated the three officers. There were further negotiations and meetings to this end, but in the interim Mr. Shum had been to the offices of the Commission Against Corruption and as a result of that the conspirators were caught.

5. The applicant was sentenced to 4½ years' imprisonment. It is suggested on his behalf that the sentence is excessive, that the judge took into account matters that he should not have taken and ignored other matters that he should have considered.

6. As to matters of general principle that should be borne in mind when passing sentence counsel has referred us to several cases in this Colony in 1965 and one in England in 1973. With all respect to counsel the only thread that can be drawn from those cases is that when passing sentence a court should take into account, as well as the nature of the offence itself, the circumstances of the individual who is then before it. That is a principle with which none of us would quarrel, although of course the circumstances of the individual are not the only factor that has to be considered.

7. Counsel then referred us to certain specific matters. There were two he said which the judge had wrongly taken into account. One is a remark which appears at P.417 of the judgment where, referring to the applicant, the judge said:-

"His involvement in this sordid affair clearly goes much deeper than was disclosed in the evidence."

The other is further down the same page, where the judge, quite correctly, commented upon the failure of the applicant to disclose his knowledge of Mr. Shum's whereabouts when, after the 10th May, the police generally were anxious to contact him. These, however, are matters referred to by the judge in explanation of his decision to convict. They do not figure in the reasons that he gave for sentence, and although the first of those comments is a little difficult to follow we see no reason to think that he was adversely influenced by either in coming to his decision upon sentence.

8. Mitigating factors which counsel suggested that the judge may have ignored are as follows:-

	1.	The ruin of the applicant's career with its disastrous consequences to his family.
	2.	The lack of financial motive for the offence. What was suggested instead, and we think may well have been the case, was the protection of one of the officers who was an old friend of the applicant and approaching his retirement from the force.
	3.	The applicant's ten years' service with the police, a service testified to by two serving officers as wholly dedicated and efficient. This was argued to be, like any other public service, a matter of commendation rather than denigration, although counsel did accept that this particular offence was only made possible by, and was an actual abuse of, the applicant's position in the force.

9. Counsel fashioned an argument - referred to by him as "inverting the bottle" which, by assigning values to the factors just mentioned, arrived at an initial sentence so high that it would be an immediate shock to the conscience and could not therefore have been used as a starting point by the judge. From that it followed that he must have used some other and lower starting point and that by finishing at the level he did could not possibly have allowed any or sufficient credit for those particular factors.

10. With every respect to counsel this ingenious approach cannot be accepted. A sentence is not derived from the mathematical addition and subtraction of units attributable to particular causes or effects. Likewise it cannot be pseudo - scientifically analysed into component parts. Sentencing is an art, not a science. And a sentence passed can only be judged by looking at the finished product as a whole, to see if it conforms to acceptable standards.

11. To ascertain those standards it is of course permissible to look at others passed in similar circumstances, and with that in mind counsel has drawn our attention to a number of sentences passed in this Colony. Only one of them has been imposed by this court⁽¹⁾ and that may be easily distinguished. Firstly the conduct complained of was the furnishing to the police of a false statement by a person suspected of an offence, as opposed to the deliberate suppression of evidence from the court by a person with no direct interest in the result of the trial. Secondly there were strong mitigating factors peculiar to the accused, which must largely have accounted for the otherwise apparent leniency of the sentence ultimately imposed.

12. Counsel does not seek to hide that this case is one of a very serious nature. That is obvious to anyone who reads or hears the facts. And making every allowance for all the matters that can be urged in the applicant's favour, we are nevertheless not persuaded that in the circumstances the sentence of 4½ years is excessive. The application for leave to appeal against sentence must be refused.

Representation:

Charles Ching, Q.C. and Miss Maria Tam (T.S. Tong & Co.) for 1st Appellant.

2nd Appellant in person.

Duckett, counsel for Crown/Respondent.

(1) R. v. YUEN Man-chiu, alias Henry Yuen Cr. App. 399/80

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