The Queen v. Wu Wing Keung Anthony

CACC000202/1988

IN THE COURT OF APPEAL

BETWEEN

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Coram: Hon. Hunter & Penlington, JJ.A., Macdougall, J

Date of hearing: 9th August 1988

Date of judgment: 9th August 1988

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J U D G M E N T

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Hunter, J.A. :

1. On 30th-March 1988 the applicant Wu Wing Keung was convicted by H H Judge Cameron on a charge of perjury. On 13th april he was sentenced to two years' imprisonment. He now seeks leave to appeal against both conviction and sentence.

2. The charge of perjury was that in February 1987 at the trial of a man named Lau Ping in the District Court, he wilfully made a false statement that he had met a man named Tai Tsz Tong who was the first and principal witness in that case, in October 1981 during a trip to Taiwan. Lau Ping was charged with the number with triad related and money lending offences.

3. The witness Lau gave evidence that in August 1980 he attended a triad initiation ceremony at Lau's premises. In the course of his evidence in chief he named only two persons as being at that ceremony, the two he had known before the ceremony took place. In the course of cross-examination, somewhat remarkably, it was elicited from him that after the ceremony he was introduced to the other persons present. One of those persons was the present applicant whom he then named. It was then suggested during a cross-examination "Do you remember going on a trip to Taiwan with him in October 1981?" to which the answer was "No, he wasn't in the party" or words to that effect. So the result of that witness's evidence in this respect was this. He met this applicant at the triad initiation ceremony in which the applicant had participated in August 1980, and he had not gone with him to Taiwan in 1981.

4. This applicant then gave evidence at the trial. Indeed he was the only witness called by Lau in his defence. He said that he never met Tai in August 1980 at all, that he first met him at Kai Tak Airport in October 1981; and that they had gone to Taiwan together as members of the party. In support of that he produced a number of documents. He produced his tickets. He produced the green card which allowed him to get entry to Taiwan. He produced his passport which showed a departure chop, on the 7th and a return chop on 19th October. This made It quite clear that he himself had gone to Taiwan at that time. More critically he produced two photographs which he said had been given to him by the then defendant's wife, Mrs Lau. Those photographs showed in fact four different men. One was the witness, Tai; the second was a man named Siu who gave evidence at the current trial; and the other two men were both members of the party. The significance of the production of the photographs was that they were produced to prove that Tai had been a member of this party in Taiwan in October 1981.

5. In the course of cross-examination in that trial, the applicant explained the circumstances in which he came to give evidence. There were some unusual features about that. He said he had been approached some three months before the trial and heard that there was some suggestion that he was involved in triad activities. But somewhat remarkably he said that Tai was not mentioned by name as the person who had made this allegation, notwithstanding the fact that he produced two photographs of him in the course of the trial. He also said that he simply arrived at the trial without prior arrangement bringing all this material with him. The words used and put in the cross-examination were "out of the blue". When it was put to him in cross-examination that quick enquiry had ascertained from the Immigration Department that they had no record of Tai's departure at this time, his answer was that he could not explain that and neither could the prosecution. It was suggested to him that he was deliberately lying and he denied it.

6. It was out of that evidence that the current trial before H H Judge Cameron arose. In the course of that trial it was established, first of all, that the applicant had given this evidence at the first trial and secondly that the evidence he gave was in fact false. It was plain from the evidence of Tai and of the other witness, Siu, who are both in the photographs, that they were taken not in October 1981 but in a year earlier in 1980. So the only issue which had to be determined by the trial judge was whether this evidence given by the applicant in the court below was wilful and false to his knowledge, or that he did not, believe it to be true, within section 31 of the Crimes Ordinance.

7. Now in the court below the applicant, gave evidence again, and went into yet more detail as to the circumstances in which he came to give evidence. He asserted that when he gave that evidence he honestly believed it to be true. This therefore raised, it seems to us, a simple question of credibility for the trial judge. He had to decide whether he believed this applicant or not. He did not. He gives his reasons in these words towards the end of lengthy reasons in which he reviewed all the evidence that had been given before him :-

The evidence which the defendant gave as DW1 in the earlier case particularly as regards the matters which I had narrated above (this covered all the peculiarities about this evidence) was not convincing. The evidence the defendant gave in the present case on the same matter was even less convincing."

and then the crucial sentence :

"It appeared to me that the defendant's giving, evidence in the present case was a desperate attempt by the de fendant to cover up the lies he know he had told when giving evidence as DW1 in the earlier case but resulting instead in exposing these lies more forcibly. I am satisfied that when the defendant as DW1 in the earlier case made the statement that he met Tai in October 1981 during a trip to Taiwan a statement which I have found proved false the defendant knew it to be false".

In effect what the judge is saying is : "I am satisfied that the story was untrue at the time of the first trial. I am satisfied likewise that this applicant has been lying to me. Having watched him in the witness box during the course of this trial the conclusions to which I have come is that he is lying to me to cover up the lies that he told earlier".

8. That reasoning has been attacked as illogical. In our view there is no substance in that attack at all. There was a simple issue of credibility for the trial judge to assess. It was an exercise of judgment by him and he exercised that judgment in a way which it is impossible for this court to criticise or interfere with.

9. There is, therefore, no substance, in our view, in the application for leave to appeal against conviction which is dismissed.

10. We then turn to deal with the question of sentence. Now the offence of perjury is one for which the maximum Imprisonment provided by s 31 of the Crimes Ordinance is 7 years. In the course of the discussion and argument.this morning, certain things have become apparent.

11. First, based upon both English and Hong Kong authority, and like the offence of attempting to pervert the cause of justice, perjury is an offence which strikes at the root of the administration of justice, and which the courts both here and in England have said demands an immediate custodial sentence. The only issue which arises in a case like this where it is proved is the length of such sentence. It may well be that this type of case is broadly divisible, as suggested in argument by Macdougall J into 3 categories.

12. The first is the man who commits perjury in the course of giving evidence in his own defence. That is the sort of case which the law looks upon somewhat benevolently. Attempts to bring a charge of perjury against such a.man are few.

13. Secondly there is the not unusual circumstance of the family, rallying round to give support to a member who has strayed. One of those cases is the case of R v Davis which is referred to in Thomas, Principles of Sentencing, was referred to by Addison J in the case of R v Low Fung Keung⁽¹⁾ at p 193. That was an English case where in mitigation on behalf of his sons a father had dishonestly said on oath that each was gainfully employed. After citing the case Addison J goes on :-

"His sentence of 12 months' imprisonment was upheld on appeal notwithstanding that he was doing what he thought best for his children".

It was a typical example of the court saying to the family member : "You are going to prison, and for 12 months, notwithstanding what you thought was very much in the family interest".

14. The third type of case, is where you have some third party coming in and deliberately giving false evidence in support of a defendant. One of the significant and less attractive features of this case is that the third party, the applicant in this case, was the man who had been named by the witness as present at a triad initiation ceremony, alleged to have been conducted by the principal defendant in that case. There is a strong, suggestion that this was a case of an alleged triad member stepping in to assist another.

15. In these circumstances we have to consider whether the sentence of 2 years can be said to be manifestly excessive. We say no more than this, that having regard to the nature of this offence, the deliberate nature of the evidence given, the circumstances in which it was given, and the maximum provided the Ordinance, it is quite impossible for us to say that this sentence is manifestly excessive.

16. For these reasons, the application for leave to appeal against sentence is dismissed.

(1) [1980] HKLR 191

Representation:

Ronald Mayne (M/s Y C Lee & Pang) for Applicant

J C Saunders (Crown Prosecutor) for Crown/Respondent