HKSAR v. Lew Mon Hung
Read the full judgment text of CACC 66/2016 on BabelCite. This Court of Appeal judgment was delivered on 2 March 2018 before Yeung VP, Poon JA and Pang JA.
Criminal law – perverting the course of public justice – common law offence of attempting to pervert the course of justice – elements: actus reus (tendency to deflect, frustrate, impair or hinder the administration of justice by a court in any actual, imminent, contemplated or possible curial proceedings) and mens rea (knowledge of or intention that conduct has such tendency) – applicant CPPCC member and deputy chairman of Pearl Oriental Oil Limited arrested by ICAC for alleged conspiracy to commit corruption under s.9 Prevention of Bribery Ordinance – whether subsequent acquittal in Pearl Oriental trial relevant to offence of attempting to pervert course of justice – whether prosecution must prove prospect of success of accused's acts – whether Chief Executive and ICAC Commissioner have power to terminate ICAC investigation – role and powers of Operations Review Committee – statutory regime under Article 57 of Basic Law and sections 5, 12, 13(1)(d) of Independent Commission Against Corruption Ordinance (Cap 204) – duty of disclosure – Lee Ming Tee test for disclosable materials – meaning of 'unlawful or improper' purpose and 'unlawful' means in Wong Chi Wai – threatening to publish inside story and 'perish together' to procure termination of investigation constitutes illegal means with unlawful purpose – trial judge's reasons for verdict adequate – leave to appeal refused – conviction upheld – original sentence 18 months' imprisonment.
Legal issues: Prosecution's duty of disclosure regarding the Third Letter · Whether applicant's acts had a tendency to pervert the course of public justice · Application of legal principles from Wong Chi Wai on purpose and means · Adequacy of the trial judge's Reasons for Verdict
Outcome: Application for leave to appeal against conviction refused; the trial judge's guilty verdict upheld.
Cited by 5 cases · Cites 9 cases
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[English Translation – 英譯本] CACC 66/2016 [2018] HKCA 116 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 66 OF 2016 (ON APPEAL FROM DCCC NO 819 OF 2013) ___________________
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___________________ J U D G M E N T ___________________ Hon Poon JA (giving the judgment of the Court): A. Introduction 1.The applicant Lew Mon-hung was charged with one count of “Doing acts tending and intended to pervert the course of public justice”, contrary to Common Law, the particulars of which are:
2.The applicant pleaded not guilty and the trial was conducted before HH Judge Yiu (the trial judge). The trial commenced on 4 January 2016 and lasted for 9 working days. On 29 February 2016, the applicant was convicted by the trial judge and sentenced to 18 months’ imprisonment. The Reasons for Verdict were delivered by the trial judge on the same day. 3.The applicant sought leave from the Court to appeal against conviction. B. The Prosecution Case 4.In the trial, most of the facts were agreed by the prosecution and the defence by way of admitted facts.[1] In addition, the prosecution called four witnesses to testify, namely, the then personal secretary of the applicant, Zhu Shuangli (“Zhu”), the then private secretary of the Chief Executive, Chan Ka-shun Carlson (“Chan’), the then personal assistant to the Commissioner of the Independent Commission Against Corruption (“ICAC”), Chung Wai-fun (“Chung”), and a Chief Investigator of the ICAC’s Operations Department, Au Kwan-lung (“Au”). The testimonies of the above prosecution witnesses were not subject to much challenge. 5.Basically, there was no dispute on the facts of the prosecution about the background in which the applicant sent the subject e-mails and letters to Chief Executive Leung (“Leung”) and Commissioner Peh (“Peh”), the way he sent the subject e-mails and letters to both of them via Zhu, as well as the handling of the subject e-mails and letters by Chan and Chung upon receipt of the same. They could be summarized as follows: B1. ICAC Investigation 6.At the material time, the applicant was the deputy chairman of Pearl Oriental Oil Limited (“Pearl Oriental”[2]), which was listed on the Main Board of the Stock Exchange of Hong Kong. He was also a member of the National Committee of the Chinese People’s Political Consultative Conference (“CPPCC”). The ICAC was conducting an investigation against Pearl Oriental and the applicant was suspected of having committed an offence under section 9 of the Prevention of Bribery Ordinance[3]. Au took part in the ICAC’s investigation against Pearl Oriental. 7.On the morning of 8 January 2013, Au went to the applicant’s office at Pearl Oriental for investigation together with an ICAC investigator, Mok Siu-hin (“Mok”). Au expressed to the applicant that he was suspected by the ICAC of having conspired with Wong Kwan, Cheung Kwok-yu, Jenny Li Jiong, Yik Siu-hung, Kitty Yip Sui-kuen and others, in an acquisition of oilfields by Pearl Oriental at Utah, the USA, to deceive the directors and shareholders of Pearl Oriental by furnishing forged documents, which might have involved the contravention of section 9(3) of the Prevention of Bribery Ordinance and section 159A of the Crimes Ordinance[4]. Au cautioned the applicant, who indicated that he understood. Au then showed the applicant a search warrant. He searched the applicant’s office in his presence and seized a document. The search completed at 11:05 am on the same day. Au invited the applicant to go to the ICAC Headquarters for investigation. At 11:27 am, Au, Mok and the applicant reached the ICAC Headquarters. 8.At 11:34 am on the same day, Mok served the applicant with a Notice to Persons under ICAC investigation for his reading. The applicant indicated that he understood the contents of the Notice and signed on it. Thereafter, Au conducted a cautioned video-recorded interview with the applicant in respect of the Pearl Oriental matters at Room 1117 of the ICAC Headquarters, which lasted for 117 minutes. The applicant answered all the questions raised by Au and did not exercise his right to remain silent or to engage a lawyer. Au agreed under cross-examination that the only allegation the applicant faced on that day was one of conspiracy to commit corruption. At 6:46 pm on the same day, Au formally arrested the applicant, during which the applicant contacted his legal representative. At 7:23 pm, Mok served the applicant with a Notice to Persons in Custody[5]. Having read the contents of the Notice, the applicant indicated that he understood and signed on it. Sometime after 10 pm in the evening, the applicant went through the bail procedure. At 11:22 pm, the applicant was given bail by the ICAC on the conditions that he pay HKD$50,000 in cash and report to the ICAC Headquarters at 11 am on 14 January 2013[6]. B2. Sending the “First Letter” 9.Zhu was then the secretary of the applicant. Her duties included handling e-mails of the applicant and preparing letters for him. She also had the e-mail password of the applicant. 10.On 9 January 2013, the applicant instructed Zhu to have the two subject e-mails transmitted to Leung and Peh respectively (“First Letter (Leung)” and “First Letter (Peh)”, which are collectively named as the “First Letter”)[7]. The detailed course of their production and transmission was as follows:
11.Chan was then the private secretary of the Chief Executive. His duties included handling e-mails and letters of the Chief Executive. E-mails transmitted to the e-mail address of the Chief Executive would be first handled by the executive officers of the Chief Executive Office. Depending on their nature, only e-mails that required perusal by the Chief Executive would be referred to his senior private assistant for handling. Chan would then take follow-up action in accordance with the need of the Chief Executive. At 8:20 pm on 9 January 2013, Chan received the First Letter (Leung) together with the attachment forwarded by the executive officers via e-mail. He forwarded the same to the Chief Executive at 8:35 pm on the same day with no changes made. 12.Chung was then the personal assistant to the Commissioner of the ICAC. Her duties included handling e-mails and letters sent to the Commissioner. Any e-mails or letters sent to Peh, if received by the ICAC Headquarters, would be forwarded or given to her to be further forwarded or given to Peh. At 8:53 am on 10 January 2013, Chung received the First letter (Peh) together with the attachment forwarded via e-mail by the executive officer(s) of the ICAC Headquarters. She forwarded the e-mail to Peh at 9:20 am on the same day. 13.The full text of the First Letter (Leung) and First Letter (Peh) could be seen at Annexes 1 and 2. Their contents are fundamentally the same, which could be summarized as follows:
14.In the last two paragraphs of the First Letter (Leung), the applicant stated:
In the last paragraph of the First Letter (Peh), the applicant stated:
B3. Sending the “Second Letter” 15.On 10 January 2013, the applicant instructed Chu to send out the other two subject letters, one to Leung and the other copied to Peh (“Second Letter (Leung)” and “Second Letter (Peh)”, collectively called the “Second Letter”)[10];. The details of how it happened were as follows:
16.On 11 January 2013, Leung gave the Second Letter (Leung) to Chan. Having read it, Chan found it necessary to deliberate with the Chief Executive’s Office and high-ranking officers on how to respond. 17.Around 9:45 a.m. on 11 January 2013, Chung received a letter with the words “For the personal attention of Commissioner Simon Peh Yun-lu” printed on the envelope[14]. She directly handed the letter to Peh without opening the envelope. The prosecution evidence did not clearly show whether Peh had read the Second Letter (Peh). 18.The full text of the Second Letter (Leung) and the Second Letter (Peh) can be seen in Annex 3 and Annex 4. They have the same contents, which can be summarized into the following points:
B4. Response of Leung 19.Subsequently, on Leung’s instructions, Chan signed and sent a letter (“Reply Letter”)[15] on 29 January 2013 in response to the First Letter (Leung) and the Second Letter (Leung) sent to the Chief Executive by the applicant. In the Reply Letter, Chan explicitly expressed that the applicant’s request was grossly inappropriate, illegitimate and unacceptable. Chan also emphasized that the ICAC, as a law enforcement agency, must act in accordance with the law without interference; and that the Chief Executive absolutely would not and should not interfere with the investigation and the law enforcement duties conducted by the ICAC in relation to any case. 20.The applicant sent the Third Letter[16] to Leung and sent a duplicate to Peh on the same day. 21.Chan pointed out that the Third Letter (Leung) had not yet been received when Leung passed the case on to the ICAC. Upon receipt of the Third Letter (Leung) on 29 January 2013, the Personal Assistant to Leung converted the letter to a PDF file and forwarded it on the same day to Leung, who further forwarded it to the Office of the Chief Executive. On that day, the Senior Personal Secretary to Leung also showed the original of the letter to Chan to see if follow-up action was necessary. After deliberation between Leung and officers of the Chief Executive’s Office, it was decided that it was not necessary to respond to the letter for the time being. Afterwards, the letter was kept in the Confidential Registry of the Chief Executive’s Office. In fact, the other letters involved in this case, including the original of the Second Letter (Leung), were also kept in the Confidential Registry. Chan confirmed that a duplicate of the Third Letter (Leung) was not given to the ICAC or the Department of Justice, nor were they informed of the existence of such letter because Chan was given to understand then that a duplicate of the letter had already been sent to the Commissioner of the ICAC. Chan indicated that he forgot if they had specifically discussed whether the letter should be given to the ICAC for investigation while discussing the follow-up matters. In mid-October 2015, the ICAC first inquired of the Chief Executive’s Office about whether they had received that letter and where it was kept. Therefore, Chan confirmed the aforesaid situation by a reply memo on 23 October 2015. 22.Apart from Leung and Chan, five or six people such as the Director, the Permanent Secretary and the executive officers of the Chief Executive’s Office were also aware of the existence of the First Letter (Leung) and all of the subsequent letters. 23.However, Chung said that she had never seen the Third Letter (Peh), about which she only learnt from the newspaper later on. She indicated that Peh would judge whether an incoming letter should be given to her to handle. It could be given to other staff members to handle if it was rather sensitive. B5. The applicant’s arrest and prosecution 24.On 31 January 2013, the ICAC first sought legal advice from the Department of Justice on whether or not to investigate into the allegation involved in this case pursuant to section 10 of the Independent Commission Against Corruption Ordinance[17]. The Department of Justice provided the relevant legal advice on 15 February 2013. 25.On 20 February 2013, the applicant was formally arrested in relation to this case. Under caution, he remained silent. 26.On 20 August 2013, the applicant was charged with the offence in this case. At the request of the applicant, his trial did not proceed until after the conclusion of the Pearl Oriental case. B6. The Pearl Oriental case 27.Concerning the Pearl Oriental case, the applicant was charged with two counts of conspiracy to defraud on 7 October 2013. The trial commenced in the High Court on 26 March 2015, when the applicant was charged with an additional offence of “Dealing with property [known or believed to represent proceeds] of an indictable offence”. The trial ended on 20 May 2015. The jury unanimously found the applicant not guilty of all charges, whereas some of the co-defendants were found guilty of certain charges. B7. The prosecution stance 28.The prosecution stance was that the applicant, in sending out the First Letter and the Second Letter, sought to influence Leung and/or Peh by threats or intimidation so as to make the ICAC terminate the investigation of him and/or other persons involved in the Pearl Oriental case. By so doing the applicant perverted the course of justice, thereby committing the alleged offence. C. The Defence Case 29.The applicant elected to give evidence but did not call any other witnesses. His evidence can be summarized as follows: C1. His Background 30.At the time of the trial, the applicant was 67 years old, married and had a son and two daughters. He had no criminal record. The applicant was born in the mainland and attained senior high school education there, and he sneaked into Hong Kong from the mainland in his twenties. 31.Afterwards, the applicant entered the finance industry and took up the posts of chairman, deputy chairman and director in several listed companies. He used to be a part-time member of the Central Policy Unit of the Hong Kong Special Administrative Region, and at the time he was the chairman of Smart Strategy Limited, which studied social issues. He had published articles on current affairs and political analysis in special columns of the Oriental Daily and Wen Wei Po. He had also expressed his views frequently on platforms such as television programmes, radio programmes and the City Forum. He had made donations to various social groups including the Baodiao Movement; the total amount was over four million Hong Kong dollars[18]. 32.During the trial, the applicant submitted 12 letters written by people from all social strata as evidence of his good character[19]. C2. His relationship with Leung 33.The applicant said that he became acquainted with Leung in September 1996. In March 2010, Leung indicated his intention to run for the Chief Executive to the applicant and would like him to support him and to create and propagate public opinion in favour of him. The applicant agreed and formally began to assist Leung in running for the Chief Executive in August 2011. 34.On 4 March 2012, the then Vice President of China, Mr Xi Jinping, met with a number of CPPCC members including the applicant. After the meeting came to an end, Mr. Wang Guangya approached the applicant and said, “This is our ‘Big Pen Shaft’ who takes a clear-cut and firm stand”. Subsequently, the applicant called Leung, informing him that it was tantamount to an approval by the Central Committee of the Communist Party and that “the die was cast”. 35.In March 2012, Leung was formally elected as the Chief Executive. On the afternoon of 28 May 2012, Leung, in his office, took the initiative to offer to the applicant that he would resign as a standing committee member of the National Committee of the CPPCC and would recommend the applicant as his one and only successor before assuming office as the Chief Executive. On 20 July 2012, Leung said to the applicant over the phone, “Mon Hung, you can put your mind at ease, I won’t kick down the ladder.” C3 Relationship with Leung turned sour 36.In mid-August 2012, friction emerged between the applicant and Leung, arising from the applicant’s suggestion for Leung to welcome the return of participants of the Baodiao Movement at the airport or pier. Leung refused to attend in person, nor did he send government officials on his behalf, for the reason that those participants of the said movement belonged to the pan-democratic camp. The applicant was angry and disapproved of this. As a result, though the applicant had a friendly relationship with Leung as described hereinbefore, following the principle of “approving what was right and condemning what was wrong”, he wrote the article “Baodiao Movement is for All Political Camps” in his column in the Oriental Daily News, “Pointing at the Rivers and Mountains” (“指點江山”), criticizing Leung of his way of handling the matter. 37.Besides the Baodiao incident, for the months prior to his arrest on 8 January 2013, the applicant publicly criticized Leung on numerous occasions in respect of issues such as ‘national education’, ‘Hong Kong independence’, ‘conservation’ and ‘Leung’s cabinet’[20]. 38.On 6 November 2012. Mr. Hui Chi-ming, a friend of the applicant’s, told him that Leung had in August of the same year written a letter recommending that another CPPCC member, Peter Wong Kwok-keung, be appointed a standing committee member of the National Committee of the CPPCC. Mr. Hui also showed to the applicant a copy of the letter. The applicant then met with Leung and confronted him. Eventually, Leung handed in a letter of recommendation to Peng Qinghua, Director of the Liaison Office of the Central People's Government, in favour of the applicant on 8 November 2012[21]. However, three weeks before the central authorities finalizing the list of standing committee members of the National Committee of the CPPCC[22], which was, on 8 January 2013, the applicant was arrested by the ICAC. Finally, the applicant was even stripped of his CPPCC National Committee membership. 39.On 2 January 2013, a former chief editorial writer of Wen Wei Po, Mr. Au Hong-chong, called and informed the applicant that Leung, in reply to an invitation to a karaoke activity by member(s) of Smart Strategy, said, “Lew Mon-hung mercilessly criticized me, and he himself has a huge problem. With him there, I will not attend.” The applicant was puzzled and shocked by the irreconcilable attitude displayed by Leung and pondered upon what problem the applicant himself had. 40.On 5 January 2013, Leung invited his supporters to the Government House as guests. The applicant expressed to reporter(s) of the Apple Daily News that Leung was calling upon his supporters, the so-called “Leung fans”（梁粉), to strike up a media warfare with people from the pan-democratic camp, which in his opinion was the reoccurrence of the method of “provoking the people against the people” used in the Cultural Revolution. On the following day, the Apple Daily carried a headline about the applicant’s criticism of Leung[23]. At noon of the same day, the applicant received a phone call from Mr. Yuen Yiu-ching, former deputy editor-in-chief of the Hong Kong Economic Journal, who said, “Mon-hung, I got wind that CY doesn’t like your ripping him. (I) heard that he will set you up with some big trouble. Watch out.” However, the applicant continued to publicly criticize Leung on 6 and 7 January 2013, which was widely reported by the media. That included Cable TV’s broadcasting of the criticism he made on 6 January 2013 at the City University during an open forum on the issue of ‘One Country Two Systems or One Country Rules All’. C4. Why sending the First Letter and the Second Letter 41.The applicant explained that when he sent out the First Letter and the Second Letter, his belief was that as far as timing was concerned, his arrest by the ICAC for the “trumped-up” charge of conspiracy to commit corruption was coincidentally right after he had launched a series of public criticisms against Leung, and three weeks prior to the central government’s finalizing the list of standing committee members of the National Committee of the CPPCC. Therefore, the applicant strongly believed that he had been framed up, that it was Leung who had instructed and used the ICAC to carry out revenge, oppression and political persecution against him. Thus, in the first paragraph of the Second Letter, the applicant wrote:
The applicant therefore mentioned in the First Letter and the Second Letter that two days after he had publicly criticized Leung, he was arrested by the ICAC for a trumped-up charge. He suspected that the timing was too much of a coincidence. 42.The applicant stressed that the first and third paragraphs of the First Letter and the Second Letter came about in the context of his being accused of ‘conspiracy to commit corruption’. In fact, in the subsequent trial in question, neither the applicant nor any of the co-defendants were charged with ‘conspiracy to commit corruption’[24]. Thus, the applicant opined that he was framed up in the whole incident. 43.The applicant explained that on 8 January 2013, the ICAC invited him to assist in investigation. However, after the video interview, the ICAC arrested him for the offence of ‘conspiracy to commit corruption’. The applicant indicated that after he had been granted bail, he could not sleep at night, and he recalled that in March 2012, Regina IpLau Suk-yee said that “CY would plot against others”[25]. He thought that he had neither committed corruption nor sought personal gain, yet he was splashed with dirty water and framed up, which caused him huge damage politically, financially and also to his reputation. It was against this background that the applicant issued the First Letter and the Second Letter. 44.As aforesaid, the applicant opined that Leung was the mastermind using the ICAC to carry out political oppression against him. Thus, he also sent the letter to Peh, who was the executor. He had no knowledge of the organisation structure of the ICAC, nor did he know if Peh was involved in the investigation. 45.The applicant stressed that the purpose of his writing to Leung and Peh (including the Third Letter) three times was to stop the opposite party’s illegal act of framing him and political persecution. He stressed that he only requested to have the unreasonable investigation halted, but not to have the investigation halted, as evidenced by his mentioning “groundless persecution” in the First Letter and “groundless accusation, which is tantamount to ‘looking for a bone in an egg’” and “unreasonable investigation” in the Second Letter. In those letters, the words “groundless” and “unreasonable’ were where the emphasis lay. He had explained in the First Letter that he had not committed corruption, nor had he been paid a penny in salary. Thus it was a great injustice to him to be accused of “conspiracy to commit corruption”. C5. Explanations of the contents of the First Letter and the Second Letter 46.In relation to the contents of the letters, the applicant explained that the reason why, in the first paragraph of the First Letter, he wrote, “someone suspects that this is purely and simply a strike of vengeance and political murder against me!” was that he recalled the aforesaid words of Mr. Au Hong-chong and Mr. Yuen Yiu-ching, and he also recalled the media reports of the criticism he had made against Leung on 6 and 7 January 2013, and the fact that he was arrested during the time when the list of standing committee members of the National Committee of the CPPCC was to be finalized. In his view, Leung was to destroy the reputation and career that he had built up through 40 years’ hard work in an instant with a “trumped-up” charge of “conspiracy to commit corruption”, which was tantamount to “political murder”. 47.Under cross-examination, the applicant agreed that he did not explicitly write in the First Letter and the Second Letter that he would cooperate in the investigation into the “accusation that was not groundless”, but he had written “genuine gold does not fear fierce fire”. The applicant said that thisexpression meant he was willing to be investigated but he would not subject himself to political persecution. That was in line with what he said in the Third Letter to Leung on 29 January, in which he mentioned the same wordings and “welcome lawful investigation”. The applicant stressed that he did not interfere with or attempt to stop the ICAC’s investigation on him. Instead, he was very cooperative in the investigation and did not keep his silence, and he took part in a video interview with the ICAC that lasted for 117 minutes without the presence of a lawyer. The applicant stressed that in that interview, the only accusation he faced was the offence of “conspiracy to commit corruption”; yet, eventually the ICAC did not charge him with that offence. As for the offence of conspiracy (to defraud) that he was charged with, the jury eventually found him not guilty unanimously. The applicant said that he did not “conspire” or commit “corruption”, so he did not need others to cover up for him, nor did he have the intention to pervert the course of public justice. 48.In relation to his requesting Leung to “have a word with” Peh and asking them to be “doubly cautious” in the First Letter (Leung), the applicant indicated that cooking up charges without evidence to frame him up was incautious and in violation of Hong Kong’s rule of law. As regards the phrase “a political bomb will be detonated”, the applicant explained that the expression, “detonating a political bomb”, had been used by various major newspapers and was political jargon[26]. He pointed out that any event that would spark huge concern by the media and attention of the general public could cause “detonation of a political bomb”. 49.The applicant said that he requested the ICAC in the letters to stop its investigation into other people as well because the ICAC’s accusation was “conspiracy to commit corruption”, which meant he had “conspired” with others. However, he did not conspire to commit corruption with others, and he never even had contact with some of the accused. Thus, the accusation was absurd, unreasonable and unlawful. The applicant was convinced that it was an unlawful political persecution targeted at him, which resulted in the implication of the other people involved in the case. 50.The applicant explained the meaning of some excerpts from the First Letter and the Second Letter as follows:
51.The applicant explained that he signed his name at the end of the First Letter (Peh) as “Student of the Respected Xu (Simin)（徐四民）” because he had been inspired by the latter’s spirit of “approving what was right and condemning what was wrong”. C6. The “Third Letter” 52.On 29 January 2013, the applicant sent the “Third Letter (Leung)” to Leung and a copy of the letter was sent to Peh. Zhu confirmed that the applicant instructed her to address a letter to Leung (“Third Letter (Leung)”) and copy to Peh (“Third Letter (Peh)”) on that day. Zhu typed out the letter, which was then amended by the applicant, before arranging for it to be delivered to the Chief Executive’s Office and copied to the ICAC Commissioner. 53.The contents of the Third Letter can be summarized as follows:
54.The applicant explained that the first paragraph of this letter meant that everyone should be law-abiding and should not disclose the ICAC’s investigation. He stated, however, that the main point of the letter was in the third paragraph, in which he not only reminded Leung not to break the law, but also indicated that he “welcomed the ICAC’s investigation in accordance with the law”. The applicant explained that though it was only in this letter that he first wrote like this, he had previously requested to halt all unreasonable investigations, meaning that he would accept and cooperate in any investigation otherwise. C7. The defence stance 55.The applicant admitted that he had sent the First Letter and the Second Letter to Leung and Peh, but denied any intent to pervert the course of justice. Based on the various underlying reasons and objective facts mentioned above, the applicant firmly believed that the ICAC’s investigation against him for “conspiracy to commit corruption” in the Pearl Oriental case was not supported by evidence. The applicant claimed that he was politically persecuted and that Leung was the culprit. In sending the First Letter and the Second Letter to Leung and Peh, the applicant merely wanted the two to stop any further unreasonable investigations against him, thus he had no intention whatsoever of perverting the course of justice. He also stated that neither Leung nor Peh had the power to halt the ICAC’s investigation, thus the actions of the applicant had no tendency to pervert the course of justice. D. The rulings of the trial judge D1. Ruling on matters of disclosure 56.The defence considered the Third Letter useful in understanding the intention of the applicant, but neither Leung nor Peh disclosed it, which suggested the possibility of them conspiring to deliberately conceal such a material letter. For this reason, the defence requested the trial judge to make a ruling on whether the following three issues were “disclosable”:
57.The prosecution submitted that the Third Letter was only written after the applicant received the Reply Letter from Chan, which suggested that the applicant had already known that Leung would not agree to interfere in the investigation at his request. Therefore, even if the Third Letter contained exculpatory expressions, the purpose behind sending the letter was highly suspicious, and they carried minimal weight in determining the purpose and intention of the applicant. Moreover, since the prosecution did not rely on the evidence of the Third Letter and neither Leung nor Peh was called as a prosecution witness, the credibility of the prosecution evidence was not affected by the way they handled the letter, nor did it have anything to do with the purpose and intention of the applicant at the material time. 58.The trial judge was of the view that the Third Letter having already been disclosed prior to the trial, the applicant suffered no prejudice and he ruled that the prosecution had discharged its duty of disclosure. He said,
D2. Ruling on the charge 59.The trial judge cited a Court of Final Appeal case HKSAR v Wong Chi Wai [2013] 16 HKCFAR 539 and a Court of Appeal case HKSAR v Wong Shing Yim Peter And Others [2003] 3 HKLRD 1046 to illustrate the relevant elements of the offence of perverting the course of justice. The trial judge then pointed out the issue of this case was whether the conduct of the applicant had a tendency to pervert the course of justice and whether he had intentionally perverted the course of justice[28], which had nothing to do with whether or not the applicant was subsequently convicted in the curial proceedings in question. The trial judge said,
60.The trial judge summarized the submissions of the parties on whether the applicant had the intention that could cause the tendency to pervert the course of justice and made the following rulings. D2.1 The issue of whether Leung and Peh had the power to halt the investigation 61.The trial judge referred to the defence’s citation of HKSAR v Tsui King Sing [2008] 3 HKLRD 213 and its submission that the prosecution did not put forward any evidence that Leung or Peh, under the relevant mechanism, had the power to terminate any ICAC investigation that had already commenced:
62.Moreover, the defence quoted what Rimsky Yuen Kwok-keung SC, the then Secretary for Justice, said at the Legislative Council (“LegCo”) on 16 October 2013[30] as well as the ICAC Annual Report 2013[31], averring that the investigation of a case could only be concluded with the endorsement of the Operations Review Committee (“Review Committee”). It is not a decision to be made by the ICAC Commissioner or the ICAC. The defence also submitted that the words on the envelope of the Second Letter (Peh)” (For the eyes of the Chief Executive only) showed that Peh was not allowed to open and read that letter. 63.The prosecution responded that under Article 48 of the Basic Law, the Chief Executive was responsible for the implementation of all laws which apply in Hong Kong, while the Independent Commission Against Corruption Ordinance provided that the ICAC Commissioner shall be subject to the control of the Chief Executive, and his/her duties shall include the investigation, on behalf of the Chief Executive, of any alleged or suspected offence/conspiracy to commit an offence under the Prevention of Bribery Ordinance . The ICAC Commissioner can appoint ICAC officers and authorize them to effect arrest, search, seizure of exhibits, enquiries and examination; make orders in relation to their duties and, as the head of a law enforcement agency, has the operational discretion, including the deployment of the resources of the ICAC and termination of an ongoing investigation. The prosecution also cited Bribery and Corruption Law in Hong Kong to establish that the ICAC Commissioner had the power to decide to discontinue an investigation having taken various factors into consideration. 64.The trial judge did not accept the defence’s assertion that the Chief Executive and/or the ICAC Commissioner had no power to halt an investigation, and he pointed out that whether or not Peh had read the Second Letter (Peh) was immaterial. He said,
D2.2 The issue on “purpose” and “means” 65.In paragraph 82 of his Reasons for Verdict, the trial judge, citing paragraph 33 of the judgment of Wong Chi Wai, stated that in determining whether the conduct of the applicant had a tendency to pervert the course of justice and whether he had intentionally perverted the course of justice, the court had to consider the applicant’s purpose for doing so and the means he used at the time. The trial judge emphasized that both the purpose and the means used by the applicant must be lawful. 66.With regard to the applicant’s purpose, the defence pointed out that the contents of the First Letter were clearly directed against the allegation of “conspiracy to commit corruption”, and Au’s testimony also confirmed that it was the sole allegation at that time. Judging from the context of the letter, it can be seen that the applicant concluded that this was not an ordinary investigation and that he only wanted to stop a “frame-up” case, thus it was not an act to pervert the course of justice. 67.The trial judge was of the view that the purpose of the applicant was unlawful, otherwise he would not have had to mention his campaigning efforts for Leung or use words such as “have a word with” and “perish together”. He said,
68.With regard to the means used by the applicant, the defence submitted that no threatening words appeared in the First Letter and reiterated the explanation given by the applicant in his evidence for the wordings used in the two letters[32]. In this regard, the trial judge was of the view that words such as “publishing shocking inside stories” and “perish together with the person who bites the hand that feeds him” as mentioned in the letters of the applicant showed that he had adopted unlawful means of threat and intimidation. He said,
69.The trial judge found that the First Letter and the Second Letter sent by the applicant unquestionably had a tendency to pervert the course of justice[34]. D2.3 The Applicant’s Intention 70.The defence stressed that the Court must take into account the particular point in time and the background in question when considering the applicant’s intention. For instance, that the applicant sent the First Letter in the form of e-mail instead of letter showed he was in a state of hurry, a state which squarely supported his explanation of feeling wronged. As to the wording of the applicant’s letters, the Court should, so the defence urged, interpret it in light of his special personal background, personality, nature and political mindset etc., which included his love-hate relationship with Leung. It was pointed out that the prosecution lacked the testimony from Leung to rebut the allegations the applicant had made against him in the letters. The defence reiterated the applicant’s evidence, and remarked that during the video-recorded interview, the applicant came to realize the ICAC had already investigated into the Pearl Oriental case for at least several weeks, yet they still made baseless accusations against him of having conspired to commit corruption. It was submitted that the applicant had ample reasons to believe he was being set up. The defence emphasized that the applicant did not intend to have Leung return the favour owed to him, nor did he think Leung had overriding power; he did not mean to interfere with witnesses or attempt to end the investigation by virtue of any of Leung’s authority. The Third Letter, so the defence argued, proved that the applicant welcomed any investigation by the ICAC conducted in accordance with the law. 71.The prosecution submitted, on the other hand, that the ICAC did not do anything unreasonable or inappropriate throughout their investigation into the acquisition of the oilfields by Pearl Oriental. In addition, the applicant was not clear about the background of the other persons involved in the case or the roles they played and their acts in the transaction. Therefore, it could be deemed that they were dragged into trouble by the applicant. While the applicant highlighted that he was found not guilty in that case, the prosecution pointed out that it was a verdict returned after the fact, and some other defendants were in fact found guilty. Hence, it was submitted what the applicant meant by stopping the “unreasonable, unlawful” investigation in the First Letter and the Second Letter was actually an attempt to seek the termination of the entire investigation into him and the Pearl Oriental incident. It was also submitted that the applicant, given his sophistication, ought to have known of the existence of an independent judicial system in Hong Kong, which made it utterly impossible for the Chief Executive to “frame him up” at his own will. Further, the prosecution argued that even if the applicant genuinely believed the investigation conducted by the ICAC was unreasonable, the fact that he mentioned his importance on the political stage, the assistance he had given Leung, as well as Leung’s promise of “not kicking down the ladder”, and that he went on to request Leung to “have a word with” Peh and “ask his subordinates to be doubly cautious”, clearly showed that he intended to interfere with the investigative work of the ICAC by illegal and inappropriate means. 72.The trial judge was of the view that the applicant’s intention as shown in the contents of the First Letter and the Second Letter contradicted what the defence argued[35]. The trial judge rejected the applicant’s evidence[36] and found that the applicant obviously knew these letters had the tendency to pervert the course of public justice; yet, by claiming to have past dealings and ties with the Chief Executive, as well as by means of threats or intimidation, he sought to influence Leung and/or Peh into terminating the investigation being carried out by the ICAC against him and/ or other persons[37]. The analysis of the trial judge was as follows:
73.Therefore, the trial judge held that:
E. The Grounds of Appeal 74.The applicant raises six grounds of appeal:
75.Quite a number of points raised under Ground (V) are repetitive of the other grounds of appeal:
Paragraph (V)(5) relates to the actus reus of the offence of “Attempting to pervert the course of public justice”, whereas paragraphs (V)(8) and (9) pertain to the actus reus and mens rea of the offence of “Attempting to pervert the course of public justice”. 76.We shall discuss the applicant’s grounds of appeal one by one as follows. F. Grounds of Appeal (I) and (II) – Duty of Disclosure 77.Both Grounds (I) and (II) relate to the prosecution’s duty of disclosure, which can be dealt with together. 78.Mr. Joseph Tse SC, on behalf of the applicant, reiterates that the defence made an application to the trial judge during trial for a ruling on whether the relevant information was “disclosable”, and not for an order to compel the prosecution to disclose the information. Mr. Tse SC points out that the significance of the information lies in supporting the applicant’s belief, i.e. he believed his arrest and the investigation into him originated from Leung’s political persecution against him. It is submitted that the trial judge’s reasons for dismissing the application shall not be factors to be taken into account when ruling on the “disclosability” of the information, because whether the information is “disclosable” depends on whether it is “possibly relevant to an issue in the case”[38]. In the opinion of Mr. Tse SC, the Court shall adopt a broad interpretation test[39] when making such a ruling, and the Court has no discretion in this matter[40]. How the defence is to use the information, the prospect of success of the line of defence after making use of the information and whether the non-disclosure of the information is unfair to the defence etc. are all factors that should not be considered. The applicant already stressed during trial, as Mr. Tse SC stated, that the trial judge should first rule on the matter of “disclosability” before the issue of whether the trial was unfair would come about, at which stage it should be for the defence to make an application for “stay of proceedings”, and only then should the Court rule on the issue of whether the trial was unfair. 79.Ms. Anna Lai SC, on behalf of the respondent, points out that the Third Letter was sent to Leung by the applicant personally and a copy was delivered to Peh by hand urgently. He also kept a copy of the letter before sending it. Having sent the First Letter and the Second Letter, the applicant only sent the Third Letter about three weeks later, the purpose of which, in Ms. Lai SC’s opinion, was extremely suspicious, and in fact, the harder he had it concealed the more it was revealed, keeping in mind the background against which the Third Letter was sent. Even if the letter contains exculpatory phrases, hardly any weight should be attached. 80.Ms. Lai SC also remarks that the applicant knew the ins and outs, the whys and wherefores of the sending of that letter like the back of his hand. He had all along kept a copy of the letter himself, and disclosed, unprompted, the existence of the Third Letter when his application for permanent stay of proceedings of the present case was being heard in District Court in November 2013; yet he accused the prosecution of willful non-disclosure. Ms. Lai SC highlights the fact that the prosecution had already informed the Court in the course of that application for permanent stay of proceedings about how the copy of the Third Letter came to be found in the ICAC Commissioner’s office in the evening on 15 November 2013. During the trial, Chan also stated that the original of the Third Letter was filed in the Confidential Registry of the Office of the Chief Executive. Ms. Lai SC strongly contends that, viewing in chronological order how the incident panned out, the applicant’s allegation against Leung, Peh or the prosecution of deliberately concealing the Third Letter, and what is more, his accusation of the two of them conspiring to pervert the course of public justice, are utterly unfounded and do not hold water. 81.Ms. Lai SC stresses that the prosecution did not rely on the Third Letter, because the way Peh and Leung handled the Third Letter upon receipt was absolutely irrelevant to the purpose and intent of the applicant at the time of sending the e-mails and letters in question, nor would it affect the credibility of any of the prosecution witnesses’ testimonies. The applicant having mentioned the Third Letter unprompted, naturally the trial judge ought to place the contents of the letter as well as the context in which the applicant sent the letter under scrutiny, in order to make a finding as to whether the contents of the letter was exculpatory; and if so, how much weight should be given. Ms. Lai SC is of the view that the trial judge did not err in making the relevant findings. 82.In response to the submission of Mr. Tse SC that the trial judge, from beginning to end, did not make a ruling on the “disclosability” of the information concerned, Ms. Lai SC points out that since the trial judge held that the prosecution had no further duty of disclosure (the information bore no relevance to this case) and the non-disclosure of such would not bring about any unfairness to the defence, the trial judge, in effect, already held that the information in question was not “disclosable”. Ms. Lai SC opines that the ruling made by the trial judge did not go against the principles and threshold of the prosecution’s duty of disclosure as stated in paragraph 168 of Lee Ming Tee. 83.Mr. Tse SC submits in reply that the respondent is merely repeating their points already taken at trial, i.e. that the prosecution did not rely on the letter, and accordingly this was the justification for not disclosing that letter to the applicant. Mr. Tse SC opines that the respondent’s stance is untenable, for the reason that whether the prosecution relied on the materials in question in their case has nothing to do with whether they should be disclosed, see HKSAR v Ip Tsz Yau, CACC 199/2015, paragraph 28. 84.It is not in dispute that at trial the defence was, in fact, simply asking for a ruling as to whether the relevant materials were “of a disclosable nature”. The trial judge nevertheless only ruled that the prosecution had discharged its duty of disclosure. This Court is of the view that the trial judge’s approach to the issue, while inadequate, did not constitute any unfairness or material irregularity, nor did it make the applicant’s conviction unsafe or unsatisfactory.
85.For the foregoing reasons, this Court holds that the first and second grounds of appeal are unsubstantiated. G. Legal principles concerning the offence of “attempting to pervert the course of justice” 86.The third and the fourth grounds of appeal concern the elements of the offence of “attempting to pervert the course of justice”. For the sake of convenience, we shall, before setting out to discuss these grounds of appeal, reiterate the applicable legal principles governing the offence. 87.“Attempting to pervert the course of justice” is a long-standing[41] common law offence, the jurisprudence and legal principles of which have been thoroughly examined and canvassed in a number of overseas and local authorities, among them R v Rogerson [1991-1992] 174 CLR 268 (High Court of Australia), Wong Shing Yim, HKSAR v Egan (2010) 13 HKCFAR 314 and Wong Chi Wai. In dealing with the issues in the current appeal, this Court is of the view that it would suffice to cite the legal principles set out in three of these cases. G1. General definition 88.From the authorities, the offence of “attempting to pervert the course of justice” is not restricted to the courts of law. It can equally apply to tribunals. In the present case, the prosecution alleged the actus reus of the applicant concerned the criminal investigation of the ICAC and was therefore confined to the criminal jurisdiction of the court. That being the case, the discussions below shall only centre on obstructing the court in its administration of justice. 89.Generally speaking, “an attempt to pervert the course of justice” is the doing of some act which has a tendency and is intended to pervert the administration of public justice by the court: Egan, paragraph 122; Wong Chi Wai, paragraph 30; Rogerson, pages 276 and 279. 90.“Attempting to pervert the course of justice”, though having in it the word “attempt”, is a substantive offence. Similar to other inchoate offences, such as “attempting to commit an offence”, it is not necessary for the alleged conduct of perverting the course of justice involved to have a real effect before the accused can be found guilty of the offence. Even if the conduct of the accused has not in fact perverted the course of justice, so long as it is established that his conduct has the tendency of perverting the course of justice and he intends to pervert the course of justice, he will have committed the offence of “attempting to pervert the course of justice” and be convicted of the offence: Egan, paragraph 123; Wong Chi Wai, paragraph 31(a); Rogerson, pages 279 and 297. 91.Like all criminal offences, “attempting to pervert the course of justice” comprises two key elements of offence: actus reus and mens rea. G2. Actus reus 92.In terms of actus reus, the offence of “attempting to pervert the course of justice” comprises two elements: “course of justice” and “pervert”. 93.“Course of justice” has a two-fold legal meaning. First, it consists in the due exercise by a court of its jurisdiction to administer justice in accordance with the law and the actual circumstances of the case: Rogerson, page 280; that is to say, the expression “course of justice” is synonymous with the expression “administration of justice”: Rogerson, page 276 - both referring to the administration of justice by the court in exercising its jurisdiction: Wong Shing Yim, paragraph 21. And, as the court may only exercise its jurisdiction after the commencement of the curial proceedings (Rogerson, page 280), it follows that the “course of justice” is a reference to the curial proceedings: Wong Shing Yim, paragraph 22. 94.As for the element of “pervert”, while acts constituting “perversion” may be various depending on the facts of different cases, these acts of “perversion” invariably impair the jurisdiction of the court: Rogerson, page 280. So long as the relevant curial proceedings are imminent, probable or possible, the relevant acts perpetrated can cause prejudice to the jurisdiction of the court even when the curial proceedings have yet to commence: Rogerson, page 277; Wong Shing Yim, paragraph 23. 95.In the light of the above, “perverting the course of justice” can be so defined: “the deflection, frustration, impairment or hindrance of the ability of a court in any actual, imminent, contemplated or possible curial proceedings, to administer justice”: Egan, paragraph 124-126; Wong Chi Wai, paragraph 31; Wong Shing Yim, paragraph 30; Rogerson, pages 275-276, page 280. As Ma CJHC (as he then was) said in Wong Shing Yim:
96.Any act that actually causes “the perversion of the course of justice” constitutes the actus reus of the offence of “perverting the course of justice”: Rogerson, page 280. Any act having a tendency to “pervert the course of justice” constitutes the actus reus of the offence of “attempting to pervert the course of justice”: Egan, paragraph 124; Wong Chi Wai, paragraph 31; Rogerson, page 280. The aforesaid tendency must be clear and manifest: Wong Shing Yim, paragraph 28. If the relevant act is perpetrated at a time when curial proceedings have yet to exist, there must be a discernible link between the act and any possible or actual curial proceedings: Wong Shing Yim, paragraph 24.[42] 97.The present case concerns investigations by the ICAC. It is an established legal principle that criminal investigations by law enforcement agencies do not themselves form part of the curial proceedings. This is not to say that the obstruction or interference of these investigations would not constitute an attempt to pervert the course of justice. In the event that such acts carry a tendency to deflect or frustrate possible criminal prosecution, even if such prosecution has not been considered by the law enforcement agencies, the prejudice caused to the court in the exercise of its jurisdiction by these acts of preventing the institution of prosecution is comparable to the prejudice caused by interfering with the prosecution after the commencement of criminal proceedings in question, and hence sufficient to constitute the offence of “perverting the course of justice”. For relevant discussions, see: Rogerson, pages 277-278, 283-284; Egan, paragraph 127; Wong Shing Yim, paragraph 23. G3. Mens rea 98.Ribeiro PJ in paragraph 32 of Wong Chi Wai set out two legal principles concerning the mens rea of “attempting to pervert the course of justice”.
99.We now proceed to the third ground of appeal. H. Tendency that can pervert the course of justice – Ground of Appeal (III) 100.The third ground of appeal is related to the actus reus of the offence of “attempting to pervert the course of justice”. The submissions of Mr Tse SC can be summarized into the following main points:
101.The following legal issues arise from the submission of Mr Tse SC:
H1. Relationship between the Chief Executive and the Commissioner 102.The relationship between the Chief Executive and the Commissioner has to be defined within the statutory regime of the ICAC. 103.Prior to the handover, the statutory regime of the ICAC was established by the Independent Commission Against Corruption Ordinance [44] while the relationship between the Commissioner and the Governor was provided for in section 5 of the Independent Commission Against Corruption Ordinance. Section 5(1) stipulated that the Commissioner, subject to the orders and control of the Governor, shall be responsible for the direction and administration of the Commission. Section 5(2) provided that the Commissioner shall not be subject to the instructions and control of any other person other than the Governor. Section 5 intended that the Commissioner was to be appointed by the Governor, independent of any person other than the Governor, and only accountable to the Governor: Khan v O’Dea [1987] HKLR 150, judgment of Hunter J, page 154 B-C. 104.After the handover, it is stated clearly in Article 57 of the Basic Law that a Commission Against Corruption shall be established in the Hong Kong Special Administrative Region. It shall function independently and be accountable to the Chief Executive. At the same time, the Independent Commission Against Corruption Ordinance is maintained as laws of the Hong Kong Special Administrative Region[45]. As such, after the handover, the legal provisions which establish the statutory regime of the ICAC are affirmed by Article 57 of the Basic Law and the Independent Commission Against Corruption Ordinance. Sections 5, 12 and 14 to 17 of the latter deal with the relationship between the Chief Executive and the Commissioner. To understand the relationship between the pair, it is a must to properly interpret Article 57 of the Basic Law and the relevant provisions of the Independent Commission Against Corruption Ordinance. H1.1 Purpose of Article 57 of the Basic Law 105.Article 57 of the Basic Law provides:
The purpose of Article 57 of the Basic Law is:
106.Article 57 of the Basic Law assures that the ICAC, including the Commissioner, the head of the ICAC, shall function independently and only be accountable to the Chief Executive. Since Article 57 of the Basic Law is a constitutional provision in general terms, it does not specify in detail as to how the Commission maintains its independence. Neither does it lay down the detailed arrangement as to how it should operate in order to be accountable to the Chief Executive. These matters are dealt with in sections 5, 12 and 14 to 17 of the Independent Commission Against Corruption Ordinance. H1.2 Relevant provisions of the Independent Commission Against Corruption Ordinance 107.Section 5 of the Independent Commission Against Corruption Ordinance provides:
108.Much like its predecessor, the purpose of section 5 of the Independent Commission Against Corruption Ordinance is to affirm that the Commissioner shall be appointed by the Chief Executive, be independent of any person other than the Chief Executive and only be accountable to the Chief Executive. 109.Properly construed, section 5(1) means that the Commissioner:
Section 5(1) does not confine the orders to or the scope of control on the Commissioner by the Chief Executive to direction and administration of the Commission. This is consistent with the purpose of section 5(2). 110.The proper construction of section 5(2) is that the Commissioner shall only be subject to the instructions and control of the Chief Executive. Section 5(2) does not impose any restrictions on the instructions or control the Chief Executive may have on the Commissioner. 111.Although sections 5(1) and (2) both use general terms and do not impose express restrictions as to how the Chief Executive should act, that does not mean that the Chief Executive can give orders or instructions to or exercise control over the Commissioner in a wanton, unrestricted manner. The law applies checks and balances in various aspects regarding the Chief Executive’s conduct so as to prevent an abuse of power by the Chief Executive. This issue will be discussed in detail in H1.3 below. 112.Sections 14 to 16 of the Independent Commission Against Corruption Ordinance provide for the financial matters of the Commission and how the Commissioner shall be accountable to the Chief Executive:
113.Section 12 of the Independent Commission Against Corruption Ordinance defines the statutory duties of the Commissioner. These statutory duties may be roughly divided into three categories, namely investigation [paragraphs (a) to (c)], prevention [paragraphs (d) to (f)] and education [paragraphs (g) to (h)]. The opening sentence of section 12 clearly states “It shall be the duty of the Commissioner, on behalf of the Chief Executive,” to perform the various statutory duties as set out in the section. The wording carries two layers of meaning. 114.Firstly, the duties in section 12 are first of all conferred on the Chief Executive. This is in conformity with the provisions in Article 48 of the Basic Law:
According to Article 48 of the Basic Law, the Chief Executive is required to be responsible for the implementation of the laws, which certainly include the Independent Commission Against Corruption Ordinance as well as the other laws as stated in section 12(b) of the Independent Commission Against Corruption Ordinance. 115.Secondly, since it is impossible for the Chief Executive to personally implement the Independent Commission Against Corruption Ordinance including the duties prescribed in section 12, section 12 authorizes the Commissioner to discharge the various statutory duties listed out in the section on behalf of the Chief Executive. When the Commissioner, on behalf of the Chief Executive, performs the statutory duties (including investigation) of section 12, he of course has to be accountable to the Chief Executive as required by Article 57 of the Basic Law and section 5 of the Independent Commission Against Corruption Ordinance. In other words, the Commissioner is subject to the instructions and control of the Chief Executive in performing the section 12 duties (including investigation). Accordingly, the Chief Executive shall be entitled to give orders or instructions to the Commissioner concerning the performance of the section 12 duties (including investigation). H1.3. Restraints on the Chief Executive in Exercising His Power 116.As previously pointed out, the Commissioner is only accountable to the Chief Executive. The law, nevertheless, provides various checks and balances on the way the Chief Executive conducts himself in this regard to ensure that he does not abuse his power:
117.These restraints in law stringently regulate and restrict the acts of the Chief Executive under Article 57 of the Basic Law and the Independent Commission Against Corruption Ordinance, especially on matters related to investigations, barring him from improperly or even unlawfully interfering with the Commissioner. H1.4. Restraints on the Commissioner 118.If the Chief Executive issues an improper or unlawful order or instruction to the Commissioner, or interferes in any way that is improper or even unlawful, the latter can of course refuse. If he accepts such an order, instruction or interference, the Commissioner himself might also be acting ultra vires or commit the offence of misconduct in public office or perverting the course of justice, etc. These legal restraints on the Commissioner ensure that he would not act in collusion with the Chief Executive if the latter abuses his power or acts in breach of the law. H2 Discretion to terminate investigation 119.This case involves an investigation by the Commissioner into a crime of corruption. The issue here is whether the Chief Executive or the Commissioner has the authority to terminate an ongoing corruption investigation by the ICAC. This requires a correct construction of section 12(b) of the Independent Commission Against Corruption Ordinance. 120.The provisions in section 12 are as follows:
121.The subject of a section 12(a) investigation is any corrupt practice, which can include, albeit not necessarily, a crime referred to in section 12(b), as per Cons VP’s judgment in Hall v Commissioner of ICAC [1987] HKLR 210, page 210 F-J. Since corrupt practices are of a wider nature and scope than crimes of corruption, when the Commissioner receives and considers such complaints, section 12(a) provides him with a discretion to “investigate such of those complaints as he considers practical.” 122.The subjectof a section 12(b) investigation is the criminal offences specified therein, and the section only requires the Commissioner to “investigate”. Looking at the wording, section 12(b) does not confer on the Commissioner a discretion to (1) not investigate, or (2) investigate “as he considers practical” as stated in section 12(a), any alleged or suspected crime: see the judgment of Cons VP in Hall v Commissioner of ICAC, page 210G. In other words, pursuant to section 12(b), the Commissioner must carry out an investigation on any such alleged or suspected crime. In order to allow the Commissioner to conduct an investigationeffectively, section 13(1)(a) provides that the Commissioner may authorize in writing any officers of the ICAC to conduct an inquiry or examination. 123.Although as stipulated in section 12(b), the Commissioner shall investigate any alleged or suspected crime, neither this section nor any other section of the Independent Commission Against Corruption Ordinance stipulates the manner in which the Commissioner shall carry out the investigation. In this regard, the common law provides an established legal principle to guide the Commissioner in his actions. 124.Under common law, the police have a duty to enforce the law and investigate crimes, but at the same time the Commissioner of Police also has a wide operational discretion. In Hill v Chief Constable of West Yorkshire [1989] 1 AC 53, Lord Keith said at page 59 D-F,
Apart from Hill, the same principle can be found in R v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118 and R v Chief Constable of Sussex, ex parte ITF Ltd [1999] 2 AC 418. 125.Both the police and the ICAC are law enforcement authorities. They both have a duty under the law to investigate crimes which fall under their respective jurisdictions, and likewise each also have practical considerations and limitations in terms of caseload, workload, resources and deployment of personnel, etc. The abovementioned common law principle, therefore,also applies to investigations by the Commissioner of ICAC. Similar to the Commissioner of Police, the Commissioner of ICAC has operational discretion when conducting investigations. That is to say, although the Commissioner of ICAC shall carry out investigation in respect of any alleged or suspected crime in compliance with the stipulation of section 12(b) of the Independent Commission Against Corruption Ordinance, he does have discretion to decide the manner of the investigation, the approach of the investigation, and the amount of resources to be put in and the number of personnel deployed for that purpose. He also has the discretion, on common law principles and upon considering all circumstances, to decide whether an ongoing investigation should be terminated. An obvious example would be where initial inquiry has found the alleged or suspected crime to be sheer fiction or not supported by sufficient evidence, and to continue the investigation is bound to be an unavailing waste of ICAC resources. In these circumstances, the Commissioner may of course exercise his discretion and terminate the investigation. 126.As pointed out above, the Commissioner of ICAC conducts a section 12(b) investigation on behalf of the Chief Executive, and that means both of them have the same statutory duty to do so, although in actual fact the investigation is carried out by the Commissioner. If, according to common law, the Commissioner being the one carrying out the investigation has the discretion to terminate an investigation, the same common law principle would of course apply to the Chief Executive, by whom the Commissioner’s power is conferred upon him. That being so, the Chief Executive also has the same discretion to terminate any section 12(b) investigation in appropriate cases, but he must exercise such discretion through a direction or order to the Commissioner. 127.Although the Commissioner and the Chief Executive have the discretion to stop a section 12(b) investigation, they cannot abuse such discretion. As already mentioned before, they are both subject to legal restraints in a number of respects. Moreover, if they really improperly exercise that discretion to terminate an investigation, the Court can intervene, although such a situation should be extremely rare. 128.Mr Tse SC contends that the Chief Executive and the Commissioner do not have the authority to terminate an investigation. His arguments are summarized below. 129.Firstly, Mr Tse SC submits that on a correct reading of Article 57 of the Basic Law and section 5 of the Independent Commission Against Corruption Ordinance, the requirement of the Commissioner’s being subject to the “orders and control of the Chief Executive” and subject to his “direction” means the Commissioner is only accountable to the Chief Executive on administrative matters but not operational matters, including investigations. Mr Tse is of the view that the direction and control referred to in section 5 do not cover operational matters of case investigations. 130.In light of the legal positions and the construction of Article 57 of the Basic Law, sections 5 and 12 of the Independent Commission Against Corruption Ordinance as discussed above, Mr Tse’s submissions cannot stand. 131.Secondly, Mr Tse SC submits that in addition, the “Chief Executive” in “subject to the orders and control of the Chief Executive and subject to the ‘direction’ of the Chief Executive” does not refer to the Chief Executive himself but the office of the Chief Executive. This Court agrees that indeed the Commissioner is accountable to the office of the Chief Executive. In general situations that do not involve the person holding the office of the Chief Executive, there is no substantive difference between the office of the Chief Executive and the holder of that office. However, in the case of the person holding the office of the Chief Executive being involved in a corruption complaint or offence, the fact that the Commissioner is accountable to the office of the Chief Executive becomes of paramount importance. Since he is only accountable to the office of the Chief Executive, the Commissioner can conduct an investigation on the holder of that office according to the law or even press charges, without any interference from the latter. 132.Thirdly, Mr Tse SC refers to the “amnesty” in 1977 to prove that be it the Governor before the handover or the Chief Executive thereafter, neither of them ever had or has the authority in law to intervene in an ICAC investigation. The ins and outs of the “amnesty” of 1977 can be found in detail in Bribery and Corruption Law in Hong Kong pp 54-98 and will not be repeated here. Put simply, on 5 November 1977, the Governor of Hong Kong issued an order pursuant to section 5 of the Independent Commission Against Corruption Ordinance, directing the Commissioner not to investigate a certain category of persons involved in offences of corruption. This order was later legislated into section 18A of the Independent Commission Against Corruption Ordinance. At that time, a scholar commented that the Governor had no authority to make that order.[47] 133.This Court is of the view that the 1977 “amnesty” is of little assistance in this case: although the scholar questioned whether the Governor had the authority under section 5 of the Independent Commission Against Corruption Ordinance to issue the order to terminate investigations, he did not provide any analysis or discussion as to the construction of section 5. In any event, after the handover, the requirement of the Commissioner of ICAC to be accountable to the Chief Executive has been provided for by Article 57 of the Basic Law and the Chief Executive has the official authority to enforce section 12 of the Independent Commission Against Corruption Ordinance pursuant to Article 48 of the Basic Law. These changes in law have already established the relationship of accountability between the Chief Executive and the Commissioner under the current statutory regime as described above. 134.Fourthly, Mr Tse SC relies on the above-mentioned legal restraints on the way in which the Chief Executive and the Commissioner conduct investigations. The existence of these restraints must be on the basis of the Chief Executive and the Commissioner having the power to conduct investigations and to terminate them. This, therefore, lends no support to Mr Tse’s position. 135.Finally, Mr Tse points out that apart from the legal restraints, on the matter of terminating an investigation, the Chief Executive and the Commissioner are also subject to the monitor of the Review Committee. We will discuss this point below. H3. THE ROLE OF THE REVIEW COMMITTEE H3.1 Brief Introduction 136.The Review Committee, which is an executive body rather than a statutory body, could trace its origin back to the Target Committee set up by the Commissioner of Police in 1961. The work of the Target Committee was of an advisory nature; its duty was to supervise the then Anti-Corruption Branch[48] of the Police Force in their dealings with corruption offences. 137.When the ICAC was established in 1974, the Governor appointed the Operations Target Committee to oversee the work carried out by the Operations Department. The Committee was composed of official members such as the Commissioner of ICAC, the Attorney General, and other non-official members. In 1978, the Governor approved a change in the title of the Operations Target Committee to Operations Review Committee（“審查貪污舉報諮詢委員會”）. 138.After the handover, the Review Committee is appointed by the Chief Executive, and it continues to carry out the work of its predecessors[49]. H3.2 Terms of Reference 139.The duties of the Review Committee are specified by its terms of reference. At the change in title in 1978, its terms of reference were:
140.The 1978 Annual Report by the Commissioner of the ICAC mentioned the change in title of the Committee and described the work of the Committee:
141.According to its terms of reference and the statement in the Annual Report by the Commissioner of the ICAC, the work of the Committee was obviously of an advisory nature; its purpose was to allow the Committee to oversee the investigative work of ICAC officers, rather than becoming another decision-making body within the organisation structure of ICAC[50]. 142.Since 1978, there have been changes to, and expansion of, the terms of reference of the Review Committee. As of 2013, that is, the year in which the offences in our present case took place, the terms of reference of the Committee were[51]:
143.Although there has been quite an expansion in its terms of reference over the years, the core duties of the Committee remain advisory in nature, and it is responsible for overseeing the investigative work of the ICAC. This can be seen from page 63 (page 68 in the English version) of “40 Years in the Operations Department (1974-2014)”, a publication of the ICAC:
H3.3 No Power under the Law to Terminate Investigations 144.As a matter of law, the Review Committee cannot exercise any control over the Commissioner, nor can the Committee issue any directions or orders to the Commissioner, for such would be in breach of Article 57 of the Basic Law as well as section 5(1) and (2) of the Independent Commission Against Corruption Ordinance, which stipulate that the Commissioner shall work independently and is only accountable to the Chief Executive. 145.Of particular relevance to this case is that, legally, the Review Committee has no power to terminate investigations conducted by the Commissioner according to section 12 of the Independent Commission Against Corruption Ordinance, as the Commissioner has never, according to section 13(1)(d) of the Independent Commission Against Corruption Ordinance, authorised in writing the Committee to perform investigation duties under section 12 or to exercise his power to investigate; and as the Committee has not been authorised by the Commissioner to conduct investigations, it surely would not be able to exercise the discretionary power vested in the Commissioner under common law to terminate investigations. 146.Mr Tse agrees that although the Review Committee lacks legal power to bind or overrule the decisions of the Commissioner, its most vital task is to oversee the work of the ICAC in the investigation of corruption complaints and offences. Ever since its establishment, the ICAC has, through various channels including its annual reports and internet website, expressed to the general public that it would follow the Review Committee’s advices and comments. Mr Tse considers that such practice has formed the “well-established” checks and balances in the system. 147.To support his stance, Mr Tse has quoted passages from publications published by the ICAC, including its Annual Reports published between 1974 and 2015 as well as the Operations Department Review published between 1998 and 2014. The contents of the publications relied on by Mr Tse are virtually identical, and we only need to quote the relevant parts as follows:
148.Mr Tse points out that even the website of the ICAC says:
149.Apart from the ICAC’s open statements, Mr Tse has also quoted the open statements by the Administration, those by the then Secretary for Justice, as well as those by Peh:
150.By reason of the combination of the documents relied upon, Mr Tse argues that the system has the following checks and balances over the Chief Executive and the Commissioner:
151.We are of the view that even if there exist these so-called checks and balances in the system, the law definitely does not provide for the Review Committee any power to terminate investigations conducted by the Commissioner according to section 12 of the Independent Commission Against Corruption Ordinance:
152.Furthermore, even though in actual practice, the Review Committee will review cases investigated by the ICAC and the Commissioner will seek advice and endorsement from the Review Committee as well as legal advice from the Department of Justice, legally, the ultimate decision as to whether or not to terminate an investigation is still made by the Chief Executive and the Commissioner, for they are still the persons to whom the statutory duties and powers are provided for by section 12 of the Independent Commission Against Corruption Ordinance: See R v DPP, ex parte Association of First Division Civil Servants (1988) Times 24 May (QB). Notwithstanding the advice from the Review Committee or the legal advice from the Department of Justice, legally, such advice cannot substitute the Chief Executive’s and the Commissioner’s decision as to whether or not to terminate an investigation. 153.We are of the view that the open statements made by the Commissioner, the Administration or the Secretary for Justice must be read from the legal point of view stated above. Under the checks and balances in the system, the Review Committee will oversee the investigative work of the ICAC, while the Commissioner will seek the Committee’s advice and endorsement before terminating an investigation. This is just to ensure that there would be no abuse of powers to terminate an investigation by the Commissioner and the Commission’s investigations will not be terminated under improper circumstances. However, the Commissioner still makes the ultimate decision as to whether or not to terminate an investigation. H4. Conclusion 154.In the light of the above analysis and discussion of the legal issues arising in this Part, this Court concludes:
155.Based on the above conclusions on the law, this Court finds that the arguments advanced by Mr. Tse, SC (see paragraph 100 above) are unsustainable and the third ground of appeal is thus not substantiated. I. Legal principles of perverting the course of public justice – Ground of Appeal (IV) I1. Submissions of both parties 156.Mr Tse SC submits that the trial judge misunderstood the judgment of Wong Chi Wai. He contends that the legal principle applicable in the present case should be those as set out in paragraphs 30 to 32 of the judgment of that case instead of paragraph 33 which the trial judge relied on. He further contends that even if the legal principle set out in paragraph 33 was also applicable, the court must take into consideration the background and reasons behind the applicant’s conduct in determining whether the purpose was “lawful” or “unlawful or improper”. Since “unlawful or improper” was not the equivalent of “illegal or contrary to the law”, the trial judge should not rely merely on the superficialnature of the means used to determine whether the applicant’s conduct was contrary to the law. Mr Tse SC submits that the proper construction of “unlawful or improper” was whether it was likely to impair the administration of public justice. If the applicant’s conduct was no more than using threat or applying pressure to exercise a legal right, then the means used was “lawful”. 157.Mr Tse SC further submits that the trial judge overlooked the illustration the Court of Final Appeal gave in paragraph 33(d) of the judgment of Wong Chi Wai. As far as the present case is concerned, the court should consider the background and reasons behind the applicant’s conduct to determine the purpose. Mr Tse contends that the letters exhibits of the case, the unpleasant past dealings between the applicant and Leung, and the statements of the applicant all showed that the applicant (genuinely) believed that the investigation of the Pearl Oriental case was utterly unusual and unreasonable. He was hoping that Leung would stop framing him with the corruption offence. That was his purpose and according to the reasoning in Wong Chi Wai, this too was a “lawful purpose”. Mr Tse SC submits that the trial judge ruled that the means used was “illegal” merely because the letters contained threatening sentences. Mr Tse SC contends that those sentences only said that articles would be published to procure Leung’s resignation. There was no evidence to show that the applicant would fabricate the contents. Besides, making criticisms against a public figure (to procure his resignation) was an exercise of the right to freedom of speech. As stated in paragraph 33(f) of Wong Chi Wai, threatening to exercise a legal right was “lawful”. 158.In reply, Ms Anna Lai SC for the respondent, says that Mr Tse SC has only made so meandering a speech to indicate that it was the applicant’s adamant belief that at the time he was persecuted by Leung and innocently subjected to the investigation by the ICAC. The e-mails and letters were sent to Leung and Peh only because he was anxious and infuriated. Therefore, his “purpose” was not “improper” and neither was the means used “illegal or contrary to the law”. Most of all, he was only exercising his legal right to air his grievance and speak out for justice and that constituted a “lawful” act. Ms Lai SC is of the view that the trial judge apprehended and grasped the applicant’s defence completely. Although the trial judge did not conduct a meticulous analysis of the applicant’s conduct in terms of the “purpose” and the “means” used as the applicant has alleged, he did precisely, clearly and thoroughly set out in paragraphs 78 to 82 of his Reasons for Verdict the elements constituting the offence of perverting the course of public justice together with all the issues which were contested in the present case. Therefore, there is no justification for the Court of Appeal to accept the submission of Mr Tse SC that the trial judge failed to apply the relevant legal principles comprehensively and correctly. I2. Our View 159.The legal principles as set out in paragraph 33 of Wong Chi Wai with regard to actus reus are focused on conducts attempting to influence witnesses. The general applicable principles are those set out in paragraphs 30 to 32. That said, when the trial judge applied paragraph 33, he could not possibly have been unaware that paragraph 33 was focused on conducts attempting to influence witnesses. Therefore, what he actually meant to say was that he would adopt the approach of paragraph 33 for the purpose of scrutinising the applicant’s conduct in question to determine whether what he did had perverted the course of public justice. This Court considers that in the circumstances of the present case, there was nothing improper for the trial judge to apply the stricter test and standard set out in paragraph 33. Mr Tse SC’s complaint against the trial judge is not established. 160.This Court agrees with the trial judge’s analysis of the applicant’s conduct in question and all his findings on the “purpose” and the “means” used including his refusal to accept the submissions made by the applicant in court and the position of the defence. The trial judge was not in error as alleged by Mr Tse SC. 161.Taking into account the whole of the evidence, this Court considers that the applicant’s sending out of the First Letter and the Second Letter constituted illegal threatening means with the intent to cause the Chief Executive and the Commissioner to succumb and terminate the investigation of the Pearl Oriental case by the ICAC. What he did undoubtedly constituted an act of attempting to pervert the course of public justice. The verdict reached by the trial judge is correct. J. Inadequacies of the Reasons for Verdict – Ground of Appeal (V) 162.As stated in the above, the sub-paragraphs of the fifth ground of appeal, namely sub-paragraphs (1) to (4) and sub-paragraphs (6) to (8), overlap with the first to the fourth grounds of appeal respectively. Since this Court has already found that all the first to the fourth grounds of appeal are not substantiated, it follows that the respective paragraphs are also not substantiated. What remains to be dealt with are paragraphs 5(5), (9) and (10). J1. Paragraph V(5) 163.Mr Tse SC contends that the trial judge erred in accepting the prosecution’s submission that according to the principle enunciated in Lee Chi Wai, the fact that the applicant was earlier found not guilty in the Pearl Oriental trial was irrelevant to the offence of the present case. Mr Tse SC further contends that this fact was adduced in court by way of admitted facts. If the prosecution’s position was correct, the prosecution should have objected to this fact being produced as evidence, let alone admitting it in the agreed facts. Mr Tse SC contends that the trial judge misunderstood the judgment of Lee Chi Wai. In that case, the court only held that the prosecution was not required to prove that the defendant would be convicted nonetheless should there be no act of perverting the course of public justice, thus, a legally not guilty verdict would not be one of the factors the court should consider in grounding a conviction. The court, however, did not hold that a factually not guilty verdict would necessarily be irrelevant to the facts of the case, especially when it came to the applicant’s belief and mental state. 164.Ms Lai SC submits that the prosecution acceded to include in the admitted facts as background information that the applicant was found not guilty in the Pearl Oriental trial because this was an indisputable fact. It did not mean that the prosecution assented to the defence’s submission, which was that an inference could be drawn from the applicant’s acquittal in 2015 that he did not have the intent to pervert the course of public justice when committing the offence in 2013. The applicant was acquitted eventually in that case because the jury formed the view that the prosecution had as a matter of law failed to prove every element of the offence beyond a reasonable doubt. In the same vein, if the applicant was on the contrary convicted in that trial, the trial judge also could not infer on this basis that he had the intent to pervert the course of public justice in 2013. It was therefore proper for the trial judge not to consider the outcome of the Pearl Oriental trial. 165.According to the legal principles reiterated by this Court in Part G above, the offence of “attempting to pervert the course of public justice” is complete when the defendant embarks on the crime. Whether the defendant is subsequently charged with an offence related to the offence of “attempting to pervert the course of public justice” or whether he is found guilty in the trial of the latter offence is irrelevant to his earlier commission of the offence of “attempting to pervert the course of public justice”. This is exactly the principles enunciated in Lee Chi Wai. The submission advanced by Ms Lai SC on this point is correct. The trial judge did not misunderstood the judgment of that case. He was completely correct in not considering the fact that the applicant was found not guilty in the Pearl Oriental trial. J2. Paragraph V(8) 166.In his submission, Mr Tse SC contends that the uncontested evidence showed that the Second Letter (Peh) was put inside an envelope mistakenly marked “For Chief Executive Leung’s eyes only”. Since Peh could not open the envelope for reading, the tendency to pervert the course of public justice, so far as Peh was concerned, did not exist and this was the applicant’s position in the original trial. The trial judge, however, misinterpreted what the applicant said by taking it to mean that “there was no evidence to suggest that Commissioner Peh did actually read the letter or was influenced by it”, paragraph 95 of his Reasons for Verdict refers. Furthermore, the trial judge continued to state that “especially when there was in the case another … letter delivered to … Commissioner Peh”. This was also not a fact and lacked evidential basis. 167.In reply, Ms Lai SC submits that the fact that a copy of the letter sent by the applicant to the Commissioner was put in an envelope mistakenly marked “For the eyes of Chief Executive Leung only” had no bearing on the intent of another asking Peh to “consider the issue from a political and macroscopic perspective, and urgently cease the unreasonable persecution against me in order to avoid a huge impact in society, or else a political bomb will be detonated!”, so as to stop the investigation of him or other people involved in the Pearl Oriental case. It also had no bearing on the fact that the applicant’s acts had the tendency to pervert the course of public justice. This is because the applicant particularly instructed his assistant to arrange for a copy of the letter to be delivered by hand to the headquarters of the ICAC and it was especially marked in the letter that it was copied to the Commissioner. Whether Peh did eventually read the letter, and if he did, whether there was an influence on him were immaterial. The offence in this case is not criminal intimidation. Leung and Peh were not the victims of this case. The real victim bearing the brunt of the impact was the judicial system of Hong Kong. 168.This Court agrees with Ms Lai SC’s submissions. J3. Paragraph V(9) 169.Mr Tse SC complains that the trial judge was selective in analysing the sentences in the e-mails and letters in that only those sentences which were prejudicial to the applicant were emphasized whereas the exculpatory ones were ignored. Also, the sentences which represented the belief and mental state of the applicant were not analysed. Therefore, his Reasons for Verdict was extremely inadequate. 170.This Court has read thoroughly the letters and e-mails in question and the trial judge’s detailed analysis of their contents and relevant evidence. In our view, the trial judge dealt with the contents of the letters and e-mails carefully, impartially and thoroughly. The complaint made by Mr Tse SC is not fair. J4. Paragraph V(10) 171.Mr Tse SC stresses that the trial judge was obliged to analyse the salient points of the defence, give reasons and make findings and account for the outcome to the defence and the public: Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority [1997-1998] 1 HKCFAR 279 at 289E-H, 290D-291A and 293A-E. However, there were a number of arguments advanced by the defence which the trial judge did not deal with at all. Nor was there any analysis or discussion thereof in his Reasons for Verdict. They were even never mentioned. Mr Tse SC sets out the issues and arguments which were not or not fully dealt with by the trial judge in paragraphs 48-50 of his written submission. 172.Having read thoroughly the Reasons for Verdict as well as the issues and arguments set out by Mr Tse SC, this Court considers that the trial judge had already discharged his duty by correctly setting out the criminal elements of the offence of “attempting to pervert the course of public justice”. He also sufficiently, carefully and thoroughly analysed all the evidence and clearly stated the reasons for his fact finding and verdict. Even though he did not deal with all the arguments advanced by the applicant in meticulous details (he was not obliged to do so as a matter of law), the applicant has not been able to provide any reason for doubting that there was any omission or mistake in law or evidence on the part of the trial judge. J5. Conclusion 173.This Court finds that the fifth ground of appeal is also not substantiated. K. Conviction was unsafe and unsatisfactory – Ground of Appeal (VI) 174.The sixth ground of appeal is a general ground of appeal based on the first to the fifth grounds. Since all those grounds are not substantiated, the applicant’s conviction was neither unsafe nor unsatisfactory. L. Conclusion 175.For the above reasons, this Court refuses the applicant’s application for leave to appeal and upholds the trial judge’s guilty verdict.
Joseph Tse SC and Doris Ho, instructed by KCL & Partners, for the Applicant Anna Lai SC, Deputy Director of Public Prosecutions, and Jonathan Lin, Senior Public Prosecutor, of the Department of Justice, for the Respondent Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law. [1] Prosecution Exhibits P1, P11 and P17, and Defence Exhibit D3. [2] Stock Code 632. [3] Cap 201, Laws of Hong Kong. [4] Cap 200, Laws of Hong Kong. [5] Prosecution Exhibit P13, Chinese translation P13a. [6] The relevant bail form and its Chinese translation are Prosecution Exhibits P15 and P15a. [7] See Annexes 1 and 2 for the First Letter (Leung) and First Letter (Peh); which were submitted as Prosecution Exhibits P2 and P4 in the trial. The attachment to the First Letter (Leung) is Prosecution Exhibit P3. [8] The attachment is Prosecution Exhibit P5. [9] See paragraph 1(iii) of Prosecution Exhibit P11 for the general e-mail address of the ICAC. [10] See Annex 3 and Annex 4 for the Second Letter (Leung) and the Second Letter (Peh); they were Prosecution Exhibits P6 and P8 during the trial. [11] This envelope is Prosecution Exhibit P7, Chinese translation P7a. [12] Prosecution Exhibit P8. [13] This envelope is Prosecution Exhibit P9, the Chinese translation P9a. [14] i.e., Prosecution Exhibit P9. [15] Prosecution Exhibit P10, see Annex 5. [16] Defence Exhibit D1, see Annex 6. [17] Cap 204, Laws of Hong Kong. [18] Annex 1 of Defence Exhibit D4, Annexes 2 to 6 of Defence Exhibit D4. [19] Annexes 7 to 16 of Defence Exhibit D4. [20] Prosecution Exhibit P2, Annexes 1, 4, 6, 7, 11 and 12 of Defence Exhibit D6, Annexes 5 and 9 of Defence Exhibit D6, Annexes 8 and 12 of Defence Exhibit D6. [21] See Defence Exhibit D5 for a copy. [22] The central authorities were expected to conduct meeting(s) between 29 January and 1 February 2013, finalizing the list of standing committee members of the National Committee of the CPPCC. [23] Annexes 10 and 11 of Defence Exhibit D6. [24] As aforesaid, the applicant was charged with two counts of conspiracy to defraud and one count of dealing with proceeds of an indictable offence; he was found not guilty by the jury unanimously on all three counts. [25] Annex 13 of Defence Exhibit D6. [26] Annexes 14-18 of Defence Exhibit D6. [27] First paragraph of the second page of the First Letter. [28] Reasons for Verdict, paragraphs 78-82. [29] Paragraph 33 in Wong Chi Wai concerns whether the means and purpose of influencing the conduct of a witness carry an intention to pervert the course of justice. [30] Defence Exhibits D8 and D9. [31] Defence Exhibit D7. [32] Reasons for Verdict, paragraphs 101-102. [33] Reasons for Verdict, paragraph 103. [34] Reasons for Verdict, paragraph 104. [35] Reasons for Verdict, paragraphs 109-110. [36] Reasons for Verdict, paragraph 124. [37] Reasons for Verdict, paragraph 125. [38] See HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336, page 384A-B. [39] HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336, page 389G; HKSAR v Chan Kau Tai [2006] 1 HKLRD 400, page 420D-F. [40] Lee Ming Tee, page 386A-B; Chan Kau Tai, page 420I. [41] One of the earliest authorities is R v Verones [1891] QB 360, which has often been cited as a starting point for jurisprudential discussions on the offence of attempting to pervert the course of justice. [42] Quoting Ma CJHC in his judgement: “Though, as a matter of timing, it is not necessary that the relevant act or conduct under scrutiny be perpetrated at a time when curial proceedings are in existence, there must nevertheless be a discernible link between the act or conduct and any possible or actual curial proceedings.” [43] Defence Exhibits D7 – D9. [44] The ICAC was set up by the Independent Commission Against Corruption Ordinance on 15 February 1974. [45] See the “Decision on Handling the Existing Law of Hong Kong According to the Provisions of Article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People Republic of China” adopted at the 24th Meeting of the Standing Committee of the Eighth National People’s Congress on 23 February 1997. [46] See section 2 of the Independent Commission Against Corruption Ordinance for the definition of “prescribed officer”. [47] See “Graft Amnesty and the Law” by Peter Wesley Smith in Far Eastern Economic Review, 30 December 1977; and another article by the same author in (1978) 24 Hong Kong Law Journal, 241. [48] For its terms of reference, see Bribery and Corruption Law in Hong Kong, page 77. [49] For Power of Chief Executive to appoint advisory bodies, see section 47A of Interpretation and General Clauses Ordinance, Cap 1. [50] As regards the point of law on this point, see H3.3 below. [51] Since 2013, the terms of reference of the Committee have remained similar. [52] ICAC Annual Report 2013 is Defence Exhibit D7. [53] On 24 November 2016, Ming Pao published Peh’s letter to its editor which contained a similar statement. Peh’s letter to the said LegCo Member and that to the editor of Ming Pao are new evidence applied to be adduced by the applicant on appeal. We allowed the application. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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