HKSAR v. Chau Fu Kau

HCMA000486/1999

HCMA486/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.486 OF 1999

(ON APPEAL FROM SKCC244 OF 1999)

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Coram: Hon Gall J in Court

Dates of hearing : 1 and 9 December 1999

Date of Judgment : 2 February 2000

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J U D G M E N T

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1. The Appellant was convicted on 15 April 1999 of one charge of doing an act tending and intended to pervert the course of public justice. To this charge, he entered a plea of not guilty and after trial, was convicted and fined the sum of $10,000.

2. The facts relied upon by the prosecution were these. In 1997, a company named THL Management Co. Ltd put up for tenders a contract supply of a fire system and invited bids in respect of it. Wing Hing Fire Engineering Co. who entered the lowest of the three tenders received, being the sum of $76,500, won the contract. The two unsuccessful tenders were put in respectively by Wui Fung Fire Engineering Co., who tendered the sum of $93,000 and Sun Tai Co., who tendered the sum of $98,000.

3. At all material times, the Appellant was a major shareholder and a director of Rich Engineering Ltd who traded as Wing Hing Fire Engineering Co, and he was also a person responsible for the day-to-day conduct of Wui Fung Fire Engineering Co. Ltd. Wing Hing Fire Engineering Co and Wui Fung Fire Engineering Co. Ltd shared the same office.

4. On 18 May 1998, the Appellant and Mr Hui Ham So, who was the proprietor of Sun Tai Co., were approached by ICAC officers at their office in Mongkok concerning the tenders to THL Management Co. Ltd. The ICAC officers explained the purposes of their visit to the Appellant, and later visited Mr Hui of Sun Tai Co. Under the guidance of the ICAC officers, Mr Hui had two telephone conversations with the Appellant. In the taped conversations, the Appellant admitted to Mr Hui that he used the correspondence paper of Sun Tai Co. obtained on a previous occasion from Mr Hui to prepare the quotation to THL Management Co. Ltd. He urged Mr Hui to give false information to the ICAC and to tell them that the quotation from Sun Tai Co. to THL Management Co. Ltd was in fact genuine.

5. The Appellant in his amended perfected grounds of appeal raises eight grounds.

6. The first ground was that the Magistrate failed to understand the case as in his oral reasons for verdict he referred a number of times in one passage to "PW1" when clearly he meant "PW4". This was a minor factual error and not a fault in his reasoning there is nothing in this ground.

I will leave grounds 2 and 3 until later in this judgment as they are in substance the one ground and the ground, which requires the most lengthy analysis.

7. Ground 4 alleges an inconsistency in the findings of the Magistrate with regard to his treatment of matters of fact and evidence. The matters complained of were :-

1.	That in his statement of findings the Magistrate refers to giving brief reasons at the end of the trial whereas he had in fact adjourned the matter after final addresses for a month before giving his verdict.
2.	That he seemed uncertain at the close of the case as to whether further evidence would be called.
3.	That although he states in his reasons he looked at the whole of the prosecution case at the time of the submission of no case to answer he ruled upon it immediately upon the completion of that submission.

Each of these complaints has form but no substance. To complain that a Magistrate says he gave brief reasons at the end of the trial when he adjourned a month from the end of final submissions, or when he momentarily forgets the point in proceedings after an adjournment or when he immediately rules upon a submission which he has been in a position to follow assess and determine as it proceeded is to resort to complaints which do not go to the substance or the reasoning of the decision and will not in these circumstances be the proper basis for a successful appeal.

Ground 5 complains that the Magistrate erred in his oral reasons for verdict in that he referred to a telephone call by the Appellant to "PW1". This was both the error earlier referred to when "PW1" was used instead of "PW4" compounded by a further error as there was no evidence at the trial that the Appellant telephoned "PW4". That fact appears only in the Summary of Facts that accompanied the information. Although it was an error it might well be inferred from the evidence that such a communication took place between the Appellant and Mr Hui, PW4, because otherwise Mr Hui would not have been able to alert the ICAC and the decision then be made to record conversations between the Appellant and Mr Hui. Whilst it was an error when referring to the evidence it was not an error when the overall facts and their inferences were to be considered. There is nothing in this ground.

8. In Ground 6 Mr McGuinniety argues that although in a submission he told the Magistrate of the clear record of the Appellant no reference is made in any of the reasons given by the Magistrate for his verdict. Mr McWalters argues there was no evidence of clear record and the bald statement to that effect from the bar table does not suffice. It is clear the Magistrate was told of the clear record of the Appellant by a statement from the Bar table, in a manner so often adopted in our courts, and that contention was not opposed by the Prosecution at that time. I therefore assume the Magistrate was aware of the clear record of the Appellant. It is not for a Magistrate to recite all the law that applies in reaching his decision. The direction applicable in respect of a clear record is well known, applied in a high proportion of the cases that come before a Magistrate and does not need to be specifically referred to unless there is a particular need to do so. There is nothing in this ground.

9. Ground 7 recites two reservations, which the Magistrate had concerning the credit of PW4. He said at Page 142 of the transcript that he "might not be a totally forthcoming witness" and at Page 141 he "was basically a truthful witness". A Magistrate is entitled and should, where he deems it necessary, set out any reservations that he might have in respect of the credit of a witness. Here the Magistrate sets out those rather minor matters but in overall terms accepts the evidence of the witness. This is an entirely sensible approach, which cannot be criticized.

10. The 8th ground is the general ground of "unsafe and unsatisfactory". I am left with Grounds 2 and 3 to cover and this ground depends upon the arguments on those grounds. I do not need to separately consider Ground 8.

11. The final matters complained of by Mr McGuinnety are that the Magistrate failed to properly consider or at all the meaning of the words "tending to pervert" in the charge and failed to consider and apply the case of The Queen v. Lee Kon & 2 others Magistracy Appeal 1190 of 1990. That case was very similar to the one now before me and the judgment in that case was written by me. In Lee Kon the facts were that in the course of the investigation of an alleged electoral conspiracy the ICAC taped the conversations of the Appellants with one Miss Ho. Those tapes showed the Appellants had urged Miss Ho to make false statements to the ICAC in the course of the investigation. Mr Litton QC (as he then was) argued that although the acts of the Appellants in that case were sufficient to prove that each intended to pervert the course of justice the acts were incapable of perverting the course of justice because Miss Ho was acting on the instructions of the ICAC and could not be affected by the words of the Appellants. At the time I accepted the argument of Mr Litton QC and allowed the appeal n that ground. No cases were referred to in the judgment to support the proposition and Mr McGuinnety now urges me to take the same position and argues the Magistrate should also have followed it.

12. I am now in a position to visit the argument afresh.

13. In Reg. v. Machin [1980] 1 WLR 763 at 767 Eveleigh LJ said:

"To do an act with the intention of perverting the course of justice is not of itself enough. The act must also have that tendency."

Mr McGuinetty argues that the meaning of "tendency to pervert" is that the act must be capable of perverting. Mr McWalters argues that if the act is one of which an observer could say "that conduct if successful will pervert the course of justice" then the act has a tendency to pervert.

14. I am again assisted by a passage from Reg v. Machin supra at page 767:

"The gist of the offence is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs."

It must be right that the object of the intended perversion does not have to be achieved for the offence to be made out.

15. The core of the argument is the proposition that if justice could not be perverted because the authorities were aware of the attempt then the act could not have a tendency to pervert. At common law incitement to commit an offence could not be committed where it was impossible to commit the offence alleged to have been incited. (Archbold 2000 Ed. 33-79). Accepting that proposition it must be right that a court in determining whether there was a tendency to pervert must look at whether the acts complained of were of such a nature that they could possibly pervert the course of justice. There is a difference between conduct, which is extremely unlikely to cause a miscarriage of justice, and conduct, which could not possibly cause a miscarriage of justice. To apply this proposition to the matter before me. It is extremely unlikely that a person who is being urged in the presence of ICAC officers to lie to those officers will in fact tell the lies that are being urged upon him. But it is not impossible. I accept the test must be that of impossibility and upon that basis decline to follow the decision I reached in Lee Kon.

16. For those reasons ground 2, 3 and 8 fail and the appeal against conviction is dismissed.

Representation:

Mr K. Zervos, SGC (On 1 December 1999) Mr Ian McWalters, SADPP and Miss Maggie Yang, SGC

(On 9 December 1999) of the Department of Justice, for HKSAR

Mr E.L. McGuinniety, instructed by Messrs Lawrence K.Y. Lo & Co. for the Appellant (On both dates)