ATTORNEY GENERAL v. YEUNG KWONG CHI

CAAR000023/1987

IN THE COURT OF APPEAL 1987, No. 23
Application for Review

BETWEEN

ATTORNEY GENERAL

Applicant

AND

YEUNG KWONG CHI

Respondent

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Coram: Hon. Cons, V.-P., Fuad, V.-P. & Mayo, J.

Date of hearing: 7 September 1988

Date of delivery of judgment: 7 September 1988

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J U D G M E N T

______________

Cons, V.-P. delivered the judgment of the Court:

1. On the 17th December last year the Applicant, Yeung Kwong Chi (“the Defendant”) was found guilty of being party to a scheme whichhad it succeeded, would have resulted in the conviction of a completely innocent man who might well have been sent to prison fora considerable period. This would inevitably have ruined his business and his future prospects. The intended victim is a single man,so that there would have been no wife and children to suffer, but his family could not fail to have been affected, not necessarilyfinancially, but by reason of the shame which would have been brought to them and theirs.

2. The instigator of the scheme had been motivated by commercial greed. We do not know what the Defendant expected to get out of hispart, for he has persisted even to the Probation Officer in maintaining that he was a genuine witness to a genuine crime. What infact he received was a sentence of imprisonment for 9 months suspended for 2 years.

3. By these proceedings the Attorney General, with the leave of the Chief Justice, asks this Court to review the sentence on the groundthat 9 months’ imprisonment is manifestly inadequate, and that the suspension thereof was wrong in principle.

4. The Defendant is, or was, a security guard in a commercial and residential complex in Shatin. In the complex there is an arcade ofshops, one of which is an electrical retail shop operated by a Mr. Wong. The instigator of the scheme is apparently also in the electricalretail business and was interested in opening a similar shop in the same arcade. However, management rules do not allow two similarshops to operate in the same arcade. In order therefore to obtain an entry into that arcade it was necessary for him to devise someway in which he could get rid of Mr. Wong. Then he would be able to tale over Mr. Wong’s shop. One way would be to get Mr. Wong convictedof a criminal offence for the management would then terminate his lease.

5. So, with the help of 2 middlemen, he recruited a girl who would go into the shop, falsely accuse Mr. Wong of having indecently assaultedher, and lay a complaint, The Defendant’s part was to pretend to have witnessed the indecent the assault.

6. The scheme was carried out on the 25th June. The girl went into the shop just as Mr. Wong was closing up, pretending to be interestedin purchasing a hair drier. one of the middlemen had already ensured that Mr. Wong’s assistants had left. Then the girl engineereda physical contact and ran from the shop screaming that she had been indecently assaulted. The Defendant duly presented himself andclaimed to have been a witness to the indecent assault. As a result Mr. long was arrested and was charged.

7. Fortunately matters which occurred later raised Mr. Wong’s suspicions, and that of his family, and a report was made to the IndependentCommission Against Corruption. In the investigations which followed the truth was discovered and the prosecution against Mr. Wongwas discontinued.

8. It is hardly necessary for this Court to comment or the wicked nature of what these persons had in mind. The disastrous consequencesthat would have ensued speak for themselves. With regard to a similar charge the English Court of Appeal made this comment (1)

“… there are perhaps few things that can be more damaging than a concerted attempt to pervert the course of justice by putting afalse case before the courts.”

and suggested that sentences of more than 3 years would be appropriate for those who did. In relation to the less serious offenceof bribing a witness not to give evidence in the course of proceedings already commenced, this Court has said(2)

“… this is a crime which is essentially against the public interest; as a whole. It strikes at the very heart of the system by whichlaw and order is enforced in society. If it were to succeed to any appreciable extent it would completely destroy public confidencein that system. Strong measures are needed to preserve that confidence and consequently; the personal circumstances of an individualdefendant carry less weight in this case than they would in relation to some other crimes.”

And later in the same case –

“It is accepted by both sides that it usually attracts a sentence of immediate imprisonment or other form of custody. Counsel forthe Crown would also qualify the word ‘imprisonment’ by the word ‘substantial’ and with that we would generally agree.”

Then in another such case(3)

“… save in exceptional circumstances an immediate custodial sentence is called for and should be imposed …”

9. The Defendant is 27 years of age. The judge thought that even so he was stupid and immature he has a clear record. The ProbationOfficer spoke very favourably of his general behaviour and his work performance, and it is clear that he is a very good son and abrother within his family.

In deciding to suspend the sentence the judge remarked –

” It seemed to me, in view of the information contained in the probation officer’s report, that this was one of the rare casesin which society and the offender would both benefit if the sentence were suspended. There appeared to be every hope that with thecontinued support of his family, this man, who had apparently been a model citizen before, could live down this one lapse and resumehis role as a useful member of society. Nothing would be gained by immediate custody. The sentence of 3 years’ imprisonment on D1could leave no doubt in the mind of the public as to the sentence normally imposed for such an offence.”

10. The reference to the sentence normally imposed with respect, highlights the error of the judge’s approach. The normal sentence, ashe accepts and we have just indicated, is one of immediate custodial imprisonment. It is necessary not only to punish and deter suchwicked behaviour, but to mark the absolute repugnance with which the public views such deliberate abuse of the criminal process.It follows that in order to justify any other sentence abnormal circumstances must be present.

11. A clear record, good family behaviour, the probability that the offence was a single fall from grace and that the defendant willin future lead a blameless life are all proper matters for consideration with respect to sentence. The judge below indeed did takethem into account, passing a sentence which however, we have to say, is considerably shorter in length than we would have thoughtappropriate even so. They are factors too, which might justify the suspension of a sentence of imprisonment for some much lesseroffence. But they are no means abnormal when put in the context of a crime of this nature.

12. Mr. Macrae, in a gallant attempt to support the decision of the judge – and one which was presented with both elegance and ability,- drew our attention a passage in Thomas on Sentencing(4) which shows that the courts will take note of what is sometimes called “positive good character”, i. e. something more than the mereabsence of a criminal record, being particular behaviour, usually unrelated to the crime itself, which has been of benefit to thecommunity. In this sense he refers to an incident 2 yeas ago when the Defendant chased and caught a street thief, which conduct broughtabout the thief’s arrest and eventual conviction. The Defendant was subsequently presented with a Certificate of Good Citizenshipby the Hong Kong General Chamber of Commerce .

13. Further to that Mr. Macrae draws our attention to the report in Thomas of Ducasse, where a defendant arraigned upon a similar charge as the present was given a suspended sentence by reason of his community involvement.We need say no more in relation to that case than that the circumstances seem to us to have been in every way completely differentfrom the presort. We are not satisfied that the Defendant’s conduct years ago, then in support of law and order in our society, evenstarts to become special circumstances sufficient to relieve him from the proper consequence of recent conduct deliberately aimedat undermining that law and order.

14. For these reasons, in our view the suspension of the sentence was wrong in principle, as well as the length of the term being, aswe have already indicated, manifestly inadequate. A proper sentence, bearing in mind the part that the Defendant played, would havebeen one of 18 months. Applying the discount normal in proceedings of kind, we would reduce that to 15 months.

15. Accordingly we allow the review and substitute a sentence of immediate imprisonment of that length.

(D. Cons)

(K. T. Fuad)

(S. H. Mayo)

Vice-President

Vice-President

Judge of the High Court

(1) R. v. Bedi Randif Sinqh, unreported 12 February 1971 at p.10

(2) A.G. v. Yeung Sau Shing, AR 21 of 1980, unreported 13 July 1981 at p.4

(3) R. v. Lam Hon Kwan Criminal Appeal 525 of 1984, unreported 22 March 1985 at p.2

(4) 2nd edition at p.200

Representation:

I. Grenville Cross Legal Department for Applicant

Andrew Macrae (D.L.A.) assigned for Respondent