HKSAR v. Yuen Sun Wing and Another
Read the full judgment text of CACC 414/2008 on BabelCite. This Court of Appeal judgment was delivered on 21 January 2010 before Tang VP, Cheung JA, Tong J.
Criminal law – conspiracy to pervert the course of public justice – sentencing – appeal against sentence – applicants acting as intermediaries arranging for substitute drivers to falsely represent themselves as offending taxi drivers – whether sentences excessive – Road Traffic (Driving Offence Points) Ordinance (Cap. 375) s.8 – demerit point system – whether deterrent sentences required – comparison with sentences imposed on co-conspirators – disparity between sentences for intermediaries and substitutes – role of intermediaries in systematic substitution arrangements – whether heavy sentences should be last resort – Court of Appeal's power to reduce sentences – applications for leave to appeal against conviction abandoned – leave to appeal against sentence granted – appeal allowed – sentences reduced from 4 years (with 6 months consecutive for D1) to 3 years concurrent per charge.
Legal issues: Whether sentences for conspiracy to pervert the course of public justice were excessive · Appropriate starting point for conspiracy to pervert the course of public justice involving substitution arrangements
Outcome: Applications for leave to appeal against conviction dismissed (abandoned). Leave to appeal against sentence granted, treated as the appeal, and appeal allowed. Sentences reduced for both applicants.
Cited by 12 cases · Cites 2 cases
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[English Translation - 英譯本] IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 414 OF 2008 (ON APPEAL FROM DCCC 376 OF 2008) ----------------------
---------------------- Before: Hon Tang VP, Cheung JA and Tong J Date of Hearing: 21 January 2010 Date of Judgment: 21 January 2010 Date of Reasons for Judgment: 3 February 2010 --------------------------------------- REASONS FOR JUDGMENT --------------------------------------- Hon Tang VP (giving the reasons for judgment of the court): 1.The 1st applicant was convicted of two counts of conspiracy to pervert the course of public justice by Deputy District Judge Sham on 26 November 2008. 2.The 1st charge of conspiracy to pervert the course of justice alleged that the 1st applicant conspired with Sin Ki Hoi and other unknown persons to pervert the course of public justice in Hong Kong between 1 August 2005 and 15 April 2006, by falsely representing to the police force that Sin Ki Hoi was the driver of various taxis detected to have committed various road traffic offences. 3.The 2nd charge of conspiracy to pervert the course of justice alleged that the 1st applicant and the 2nd applicant Kwan Fat-cheong conspired with Sin Ki Hoi and other unknown persons to pervert the course of public justice in Hong Kong between 1 October 2005 and 2 June 2006, by falsely representing to the police force that Sin Ki-hoi was the driver of various taxis detected to have committed various road traffic offences. 4.The 1st applicant was sentenced to 4 years’ imprisonment for each of the two aforesaid charges, with 6 months of the sentence of the 2nd charge ordered to run consecutively to the sentence of 4 years of the first charge, making a total sentence of 4 and a half years. 5.The 2nd applicant, who faced the 2nd charge, was also convicted and sentenced to 4 years’ imprisonment. 6.The two applicants applied to this court for leave to appeal against conviction and sentence, but both abandoned their applications for leave to appeal against conviction of their own accord at the hearing. The abandonment of the applications was accepted by this court and their applications for leave to appeal against conviction were dismissed accordingly. 7.The 1st applicant is represented in his application for leave to appeal against sentence by counsel Mr P. Y. Lo, instructed by Legal Aid Department. The 2nd applicant is represented in his application for leave to appeal against sentence by counsel Mr Wong Hay Yiu and Ms Louise Chan, assigned by the Bar Free Legal Service Scheme. 8.The facts of this case are fairly simple. The two applicants made arrangements for Sin Ki Hoi (PW1) to act as a substitute for other drivers who had committed traffic offences, so that they could be free from legal liability, and thus could avoid accumulating demerit points or being disqualified from driving. Sin Ki Hoi was also charged with two counts of perverting the course of public justice himself. He pleaded guilty in the District Court on 18 December 2007, and subsequently gave a witness statement to ICAC officers and assisted the prosecution by giving evidence against the two applicants. The trial judge Deputy District Judge Sham Siu-man accepted his evidence and convicted the two applicants accordingly. 9.The background of the case according to the facts agreed by both the prosecution and the defence is as follows:
10.The demerit point system is provided in section 8 of the Road Traffic (Driving Offence Points) Ordinance (Cap. 375):
First offenders shall be disqualified from holding or obtaining a driving licence for 3 months, whereas repeat offenders shall be disqualified for a longer period of 6 months. 11.The 1st applicant is one of the shareholders and directors of Silver Dragon Taxi Company Limited (“Silver Dragon”). And the 2nd applicant is one of the shareholders and directors of Shun Po Motors Company (“Shun Po”). 12.During the period when the offences took place, 6 offending taxis were placed under the management of Silver Dragon directly by the vehicle owners or indirectly through intermediaries. And the number of offending taxis placed under the management of Shun Po directly by the vehicle owners or indirectly through intermediaries totalled 12. 13.The police issued 6 Pol. 571 forms (“driver’s form”) in respect of the 6 vehicles under the management of Silver Dragon, and 14 in respect of the 12 vehicles under the management of Shun Po. All the return forms claimed that Sin Kin-hoi was the driver at the time of the offence. 14.Of the 20 traffic offences, 15 were speeding, 5 were disobeying traffic light signals. 15.Eventually, Sin incurred a total of 20 points in respect of the taxis under the management of Silver Dragon and was fined $2,850 in total. He incurred a total of 42 points in respect of the 14 traffic offences committed in relation to the taxis under the management of Shun Po, and was fined $8,400 in total. 16.Regarding the sentences, the 1st applicant said that the total sentence of 4 and a half years in respect of the conviction of his two charges was excessive. The 2nd applicant pointed out that PW1 Sin Ki Hoi also committed two similar offences of perverting the course of public justice, but the court only adopted a starting point of 2 years. The disparity between his sentence and Sin Ki Hoi’s was too great in comparison, thus giving him a legitimate grievance. 17.Record shows that Sin Ki Hoi, like the 1st applicant, was also charged with two offences: HKSAR and Sin Ki Hoi (unreported, 24 February 2009, CACC 380/2007). Stuart-Moore VP and Wright J said in paragraph 12 of the judgment as follows:
The Court of Appeal was of the view that the starting point of 2 years adopted in Sin Ki Hoi’s case was too low; and that the reasonable sentence should be more than double the starting point of two years, namely more than 4 years. 18.In HKSAR and Fung Shu Wai (transliteration) (unreported, 17 November 2005, HCMA 673/2005), the appellant stood in as a substitute for the co-defendant surnamed Mak on 1 May 2003, 31 May 2003 and 19 August 2003 respectively, falsely representing that he was the speeding driver on the aforesaid three dates. He was given a total sentence of 12 months by the magistrate. On appeal, Deputy Judge of the Court of First Instance Derek Pang (as he then was) held that the sentence of 12 months was not manifestly excessive. 19.Moreover, according to the information obtained by the 1st applicant from the prosecution, 29 persons were arrested in the same law enforcement operation. Twenty-five of them were formally charged (including the two defendants in this case and Sin Ki Hoi); 6 of them acted as intermediaries (including the two defendants in this case), 11 of them acted as substitutes (including Sin Ki Hoi), and the remaining 8 were drivers. 20.Most of the persons arrested in the operation were charged with conspiracy to pervert the course of public justice. There was only one driver who was charged with performing a series of acts which had the tendency and were intended to pervert the course of public justice. Apart from this case and Sin Ki Hoi’s case, all the trials arising from the law enforcement operation were conducted in the magistracies. 21.Apart from the defendants in this case and Sin Ki Hoi, the defendants in other cases were mostly sentenced to community service (2 ordered to serve 240 hours, 1 ordered to serve 200 hours, 14 ordered to serve 160 hours, 2 ordered to serve 80 hours). Of the defendants who were sentenced to imprisonment, an intermediary (Tsang Chi Sum) was sentenced to a total of 3 months’ immediate imprisonment for two counts of conspiracy to pervert the course of public justice, a driver (Chan Hoi Shan) was sentenced to 3 months’ immediate imprisonment for one count of conspiracy to pervert the course of public justice, and an intermediary (Shum Chi Tat) was sentenced to a total of 8 months’ immediate imprisonment after trial for two counts of conspiracy to pervert the course of public justice. The above information shows that magistrates conducting the relevant trials were obviously inclined to pass relatively short sentences on individual cases of conspiracy to pervert the course of public justice involving acts of substituting others by making false representations, and the first offenders were even sentenced to community service orders. 22.In Sin Ki Hoi, the Court of Appeal stated in its judgment that Sin Ki Hoi had received $21,600 from the 1st applicant and $36,000 from the 2nd applicant. As regards the two applicants, there is no evidence showing that they had received any pecuniary rewards, but of course their companies might have been indirectly benefited. In passing sentence, the trial judge said as follows:
23.The offences committed by the applicants are without doubt serious. They helped offending drivers evade justice, thus allowing drivers who jumped red eights and drove at excessive speed to continue to drive on the roads of Hong Kong. Their offences systematically allowed drivers to avoid the sanction of the law after committing offences. The offences in this case spanned over eight months and involved as many as twenty offending drivers. 24.Counsel for the prosecution Mr Tam submitted that the culpability of the intermediaries should be more severe than the substitutes. We are of the view that the culpability of those who pay others to act as substitutes should at least be regarded as similar to that of the substitutes. The culpability of a substitute will of course increase if he stands in for more than one person, and the culpability of an intermediary depends on how many such cases he has helped arrange. The two applicants in this case are both intermediaries, and Sin Ki Hoi is the only substitute. The culpability of the two applicants who acted as intermediaries should be more severe than Sin Ki Hoi’s, even though Sin received substantial pecuniary benefits but they didn’t. This is because they helped make quite a number of “substitution” arrangements. 25.In Sin Ki Hoi, the Court of Appeal held that the starting point of 2 years in respect of the total sentence was too low, which we fully agree. However, the court’s opinion in that case that the reasonable sentence should be over four years is merely an obiter dictum in the judgment. One cannot find from that obiter dictum an indication that the Court of Appeal had considered that matter thoroughly before giving it. Nor can one see whether the Court of Appeal knew how the other persons involved were dealt with. Nevertheless, we agree with the Court of Appeal’s view in Sin Ki Hoi that deterrent sentences must be passed in respect of these offences. These offences are in our view very serious, hence we specifically discussed in court ways of deterring people from committing them. We believe an effective deterrent is to make people aware that those who commit these offences are very likely to be caught. We find in our discussion that there exist many loopholes in the investigation process of these offences. For example, the opportunity cost to re-offend is very low when a driver has accumulated 15 points but has yet to be disqualified from driving by the court. The computer system of the Transport Department or the police force cannot immediately indicate whether the target vehicles under investigation are taxis, or how many demerit points the drivers of the relevant vehicles have incurred. That explains why Sin Ki Hoi was only disqualified from driving after accumulating 62 demerit points. Furthermore, we were given to know that Sin Ki Hoi was only disqualified from driving for 3 months even though he had accumulated as many as 62 demerit points. Once the disqualification period has expired, the calculation of the demerit points will start afresh, meaning that the 62 demerit points already incurred will be wiped out. 26.It is our view that a set of effective measures, including the use of appropriate computer software, must be adopted to plug the loopholes. Heavy sentences act as a deterrent and some offences must be punished heavily to have a deterrent effect. But it should be the last resort: The court should always consider if there are any other feasible deterrent measures first. Many suggestions on the effective measures to be adopted were put forward by various parties during our discussion, including the penalty to be imposed on the substituted. At present, the substituted are rarely given immediate custodial sentences. We take the view that the court can seriously consider sentencing drivers who evade disqualification by getting substitutes to a term of immediate imprisonment. It should serve as a deterrent to sentence first offenders to a term of 3 to 6 months’ imprisonment. People acting as substitutes can be dealt with similarly, and the penalty for those who act as substitutes for more than one person would of course be increased. Regarding the intermediaries, their penalty should also be increased if they make arrangements for more than one person to act as substitutes or to be substituted. However, the expected effect may not be achieved if the court only punishes the intermediaries heavily whilst lets off lightly persons acting as substitutes or those who are substituted. If the loopholes that exist in the investigation process can be closed, the chances of committing such offences would no doubt be reduced. 27.Having regard to the relevant factors mentioned above, we grant leave to the two applicants to appeal against sentence, treat the application as the appeal and allow the appeal. Regarding the sentences of the 1st applicant, we take the view that the appropriate sentence for both the 1st and 2nd charges should be 3 years. The two sentences are to run concurrently, making a total sentence of 3 years. 28.As regards the 2nd applicant, the sentence for the 2nd charge should also be 3 years. 29.Although the 1st applicant faced one more charge than the 2nd applicant, we find that the total sentence of the 1st applicant needs not be increased. According to the facts, the 1st applicant played a lesser role in the 2nd charge, he only introduced Sin Ki Hoi to the 2nd applicant, and there is no evidence showing that he directly took part in the substitution arrangements involving the 12 vehicles managed by Silver Dragon. Moreover, there were fewer offending vehicles involved in the 1st charge than those involved in the 2nd charge; the 1st charge involved 6 vehicles and 6 “substitution” offences, while the 2nd charge involved 12 vehicles and 14 “substitution” offences.
Mr Tam Yiu Ho William, SADPP, of the Department of Justice, for the Respondent. The 1st Applicant in person, present (Re: Conviction) Mr P.Y.Lo, instructed by Chong & Yen, assigned by Director of Legal Aid, for the 1st Applicant (Re: Sentence) The 2nd Applicant in person, present (Re: Conviction) Mr Wong Hay Yiu and Ms Louise Chan, assigned by the Bar Free Legal Service Scheme, for the 2nd Applicant (Re: Sentence) Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister. |
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