The Queen v. Yuen Man-chiu
Read the full judgment text of DCCC 252/1979 on BabelCite. This District Court judgment.
1. The accused remains charged with aiding, abetting, counselling and procuring one WONG Kin-chung and two persons unknown to assault one YUEN Kwong-ming inciting one Sandra Noy-Mui EU, one Charles EU Keng-pang and one TAI Ma-ho to pervert the course of public justice by making false statements to the police relating to an assault upon the said YUEN Kwong-ming, which assault was being investigated by the police and to attempting to pervert the course of public justice by making a false statement
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DCCC000252/1979 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA (SITTING AT KOWLOON) CRIMINAL JURISDICTION CASE NOS. 252 & 273 OF 1979 -----------------
----------------- Coram: A.L. Leathlean, D.J., in Court. Date of Judgment: 17 April, 1980 ----------------- JUDGMENT ----------------- 1. The accused remains charged with aiding, abetting, counselling and procuring one WONG Kin-chung and two persons unknown to assault one YUEN Kwong-ming inciting one Sandra Noy-Mui EU, one Charles EU Keng-pang and one TAI Ma-ho to pervert the course of public justice by making false statements to the police relating to an assault upon the said YUEN Kwong-ming, which assault was being investigated by the police and to attempting to pervert the course of public justice by making a false statement to the police relating to the said assault. 2. The case for the prosecution is set out in its summary of evidence. Eleven witnesses have testified for the Crown. The accused has elected not to give evidence, but has called seven witnesses. 3. In my view there has been adduced before the court an abundance of evidence which, if believed, would warrant the conviction of the accused upon all counts. 4. I deal first with the count which charges that the accused aided, abetted, counselled and procured WONG Kin-chung (Ah Lung) and two others to assault YUEN Kwong-ming (Ah Ming). 5. It is not in dispute that Ah Ming had worked upon Mrs. Eu's car, upon which he therefore had a lien against his admittedly unpaid charges. According to Mr. Eu he intimated to the accused that he anticipated resistance from Ah Ming and his employees if an attempt was made to re-possess the car, whereupon the accused prayed in aid the attendance of Ah Lung and two other men. A suggestion that it was Mr. Eu who did so found no favour with him or any of the other witnesses who testified for the prosecution in connexion with this count. Upon the evidence of SE the accused specifically told Ah Lung not to hit Ah Ming before going to his garage on the afternoon of September 26th, 1979, but, when Ah Ming made off with the key of Mrs. Eu's car at the Central Government Offices underground car park shortly afterwards, told Ah Lung and the other two to bring him back, which they did. In my judgment, bearing in mind that Ah Ming had a lien on the car, he was lawfully in possession of the key, and the evidence, if believed, suffices to sustain the conviction of the accused of aiding, abetting, counselling and procuring Ah Lung and the other two to assault Ah Ming. It is no part of the case for the Crown that the accused was a party to the beating which ensued. Indeed, there is evidence that the accused told Ah Lung and the others to desist less than a minute after a significant violence erupted. 6. Mr. Hazan for the accused complains that it was never really the case for the prosecution that the accused had aided abetted, counselled and procured a mere technical assault upon Ah Ming. With respect, I can see no substance in his complaint. He argues, if I understand him correctly, that even if Ah Ming had a lien on the car the accused's conduct in telling Ah Lung and the others to bring Ah Ming back when he ran away with the key was not criminal inasmuch as he acted on the spur of the moment without pausing to consider whether Ah Ming was entitled to take the key. Again with respect, I do not agree. 7. I deal secondly with the counts relating to the perversion of the course of public justice. I direct myself that an act done with intent to pervert the course of justice will not amount to the offence unless it tends to pervert the course of justice (vide Smith and Hogan: Criminal Law, 4th (1978) edition, page 722). In my judgment, if the conduct of which the Crown complains in connexion with these counts was committed with the requisite intent it undoubtedly tended to pervert the course of public justice. At this state it is convenient to state that I have, as enjoined by Mr. Hazan, considered the evidence led in respect of each count separately. 8. So far as the 5th count is concerned Mr. Lucas submits, and I agree, that the evidence led by the prosecution, if believed, is clear that on September 28th the accused made a false statement to the police relating to the assault upon Ah Ming two days before which they were then investigating. However, Mr. Hazan urges me to find that when he made that statement the accused was not attempting to pervert the course of justice inasmuch as he had been persuaded that that Mrs. Eu would be able to prevail upon the police to "hush up" the assault on Ah Ming. He seeks to rely upon the evidence that Mrs. Eu tried to contact the Commissioner very shortly after the assault and before the accused made his statement to the police on September 28th, and upon a tape-recorded telephone conversation between the accused and a police officer, Mr. King, in support of his contention that I should find that the accused did not intend to mislead the police when he made a statement on September 28th. 9. Not to mince matters, I have little doubt that Mrs. Eu would have been only too pleased had the police "hushed up" the assault on Ah Ming, and that that may very well be why she tried to get in touch with the Commissioner in the first place, rather than to avoid having to deal with a much more lowly member of the force. Mrs. Eu maintains that it was the accused not she, who suggested speaking to the Commissioner. 10. As to the tape-recorded telephone conversation between the accused and Mr. King, Mr. King agrees that a conversation on those lines did take place between them. At one stage during the conversation Mr. King undoubtedly utters the words "cover up". There is, to use a neutral noun, a noise on the tape during the passage in which Mr. King says "cover up". The defence contends that what Mr. King was saying in that passage was to the effect that he was trying to cover up Ah Ming's complaint that he had been assaulted. Mr. King maintains that what he was saying in that passage was to the effect that he wanted the accused to make a statement in order to avoid any allegation by Ah Ming that he was trying to do a cover up job because of the personalities involved. Mr. Hazan seeks to make much of the fact that Mr. King refers to "further" allegations, when, so far as I know, Ah Ming has made no such allegation, but I do not think that anything turns upon this. On this aspect of matters, of course, ultimately I must have recourse to the evidence of my own ears, which leaves me in no doubt at all from the inflexion of Mr. King's voice at this point in the conversation that in truth and in fact what he was saying was to the effect that he wanted the accused to make a statement in order to avoid any allegation by Ah Ming that he was trying to do a cover up job. There is also Mrs. Eu's evidence that the accused played this passage to her over and over again, remarking upon Mr. King's incaution in uttering the words "cover up" at all. And of course, in the event, the accused has tried to turn those words to his advantage. 11. Considering each of the incitement counts separately I find in respect of each evidence which, if believed, amply supports it. Mr. Hazan, however, invites me to find upon the evidence that so far from the accused having incited the Eus and TAI Ma-ho (Ah Tai) to pervert the course of justice the boot was, so to speak, on the other foot. He also submits that if his client, the Eus and Ah Tai had merely conspired to make false statements to the police, the accused is not liable to be convicted of incitement at all. However that may be, it is not to say that incitement and conspiracy are mutually exclusive offences. If A incites B to commit a criminal offence, and B agrees, A is none the less guilty of incitement because from the moment of agreement he also becomes a conspirator. 12. All the witnesses for the prosecution, particularly the Eus and Ah Tai, were subjected to very close and detailed cross-examination, much of which centred around statements to the police and certain tape-recorded conversations, including one between Mr. Eu and the accused, which Mr. Eu maintains is an amalgam of at least two telephone conversations. A Mr. Stemke was called by the defence to vouch for the bona fides of this recording. I think that it is sufficient to say that in my view he was utterly discredited in cross-examination. An expert witness was called by the prosecution as to this aspect of matters, whose evidence, I think, really boiled down to this: that it was quite impossible to vouch with anything even remotely approaching certainty for the bona fides of a tape recording upon the basis of such tests as Mr. Stemke had made, and that there were indications that the recordings might possibly have been tampered with. No doubt because of this Mr. Lucas invited e to rule upon admissibility, which, however, I declined to do, agreeing as I did with Mr. Hazan that the question was really one of weight, not admissibility. As I have said, Mr. Eu protested very early on in cross-examination that the recording of the conversation between him and the accused was an amalgam of at least two conversations. The defence seeks to rely upon this recording mainly as demonstrating that Ah Lung and the other two men who assaulted Ah Ming were not engaged by the accused but were Mr. Eu's own bodyguards. Having regard to Mr. Eu's evidence on the subject, to the evidence that it was impossible to vouch for its bona fides on the basis of the tests made by Mr. Stemke and to the evidence that it might possibly have been tampered with, I have reached the firm conclusion that no weight whatever can safely be attached to this recording. 13. Undoubtedly Mrs. Eu was a fellow accomplice in the matter of the offence charged in the 2nd count. So, I believe, was Ah Tai in the matter of the offence charged in the 4th count. So, I believe, was Mr. Eu in the matter of the offence charged in the 3rd count. It has not been easy to decide, but on the whole I believe that at first he agreed to make a false statement to the police at the accused's behest, but changed his mind when it came to the point. In my view he was not an accomplice in the matter of the offence charged in the 6th count. I use the term "fellow accomplice" in the sense in which it was used in D.P.P. v. Kilbourne(1), in which it was held that while there is no general rule that no persons who come within the definition of "accomplice" may be mutually corroborative, it is still the law that one fellow accomplice cannot corroborate another fellow accomplice. I have accordingly directed myself that it would be dangerous to convict the accused upon the 2nd count upon the evidence of Mrs. Eu unless it is corroborated, upon the 3rd count upon the evidence of Mr. Eu unless it is corroborated, or upon the 4th count upon the evidence of Ah Tai unless it is corroborated. Mr. Hazan in his final address dealt with the motives which the Eus and Ah Tai had for lying, not the least of which, of course, was that they have been granted immunity from prosecution. I have considered them all. He drew my attention to what was said by the Court of Appeal in YU Yuk-kwong et al. v. R.(2) in this connexion, viz.
I wish to make it clear that I have looked with both great care and sustained suspicion at the evidence of the Eus and Ah Tai. Except in the matter of Mr. Tisdall's evidence of the conversation which took place during luncheon at the Hong Kong Club on October 1st between him, Mrs. Eu and the accused, I find no corroboration of the evidence of the Eus or Ah Tai. Mr. Tisdall has been criticized for not disclosing this conversation much earlier than he did. I do not lose sight of the fact that he has not only acted for Mrs. Eu for some three years but is a friend of hers and her brother-in-law. Nor do I lose sight of the fact that Mr. Lucas was unaware of the conversation until Mrs. Eu mentioned it in evidence despite Mr. Tisdall having told (he thinks) Mr. King, long before the trial began, that the accused had told him that he - the accused - kept the telephone number of what Mr. Tisdall called a "Rent-a-Thug" service on the telephone pad on his desk in chambers. However, I have come to the conclusion that there is nothing in the least sinister about any of this. I accept Mr. Tisdall's explanation that, acting as he was for Mrs. Eu, he was in an invidious position in that he could hardly have disclosed the entire conversation without betraying his client's confidence, privilege not having been waived until Mrs. Eu went into the witness box. Undoubtedly, in my judgment, Mr. Tisdall's evidence, if accepted, is not only capable of corroborating but does corroborate the other evidence that it was the accused who secured the services of Ah Lung and the other two men who assaulted Ah Ming and that the accused had impressed upon Mrs. Eu that he and she, her brother-in-law and Ah Tai should all tell the same story. 14. I make no bones about it : neither the Eus nor Ah Tai are, in my view, averse to lying when it suits them. While that may be truer in the case of Mrs. Eu and Ah Tai than in the case of Mr. Eu, who obviously has more scruples about telling lies than his sister-in-law or Ah Tai, there can be no doubt upon the evidence that Mr. Eu more than once told less than the truth, the whole truth and nothing but the truth not only out of court but in court as well : in my view, he, like his sister-in-law and Ah Tai, was at pains to play down his part in the affair. I particularly have in mind his evidence that he spoke nary a word to Ah Lung or his companions, which is directly contrary to that of Ah Ming, who, of course, really has no motive for saying that Mr. Eu spoke to Ah Lung and his companions if he did not. Not only was it obvious to me that Ah Tai was at pains to play down his part in the affair but also that he was at pains to play down that played in it by his employer Mr. Eu. That brings me to the evidence of the defence witness Mr. Lo, according to whom Ah Tai expressed at least his relief, if not his glee, at the accused's arrest, remarking in effect that the accused was going to carry the can for all of them. I am not going to pretend that I found Ah Tai at all convincing when he denied this, at first less than positively, then emphatically, when it was put to him, and I think that it may be that he did make some such remark to Mr. Lo. But even if he did, is it particularly sinister? Or, indeed, particularly surprising? For up to then Ah Tai had every reason to think that not only the accused but the Eus and he were in trouble. Once the accused was arrested Ah Tai may well have thought that he and the Eus were safe, and I can find nothing inherently sinister or surprising in his expressing relief that he, his employer and his employer's sister-in-law were no longer in danger. 15. I think that it is convenient at this stage to deal with other matters which Mr. Hazan raised in his closing address. He sees, he says, a note in the accused's possession (included in exhibits P.9-12) "Tell full story" as the lynch pin of the case. There is no question that Mrs. Eu identified that note as one of several which the accused passed to her via Ah Tai on the night of the assault while she was speaking on the telephone to the police. Cross-examined, she said that she could not particularly remember this note, that she thought that there were more than four of them and that the accused took them all away with him when he left her flat on the night of September 26th. Mrs. Eu suggests that the accused must have taken some blank sheets of notepaper away with him as well that night and written this note ex post facto. Mr. Hazan sought to pour scorn upon this explanation. If indeed the accused sent Mrs. Eu a note saying "Tell full story" on the night in question then its value to him cannot be gainsaid. But having considered this matter most anxiously and most carefully I have come to the conclusion that the explanation is that Mrs. Eu was quite simply careless when she identified this note as one of those written by the accused and passed to her by Ah Tai one by one on the night of September 26th. 16. Another matter adverted to by Mr. Hazan is the evidence that the accused proclaimed his name and profession to Ah Ming immediately prior to the assault and "obligingly" spoke to Mr. Tisdall of professional misconduct past and proposed. On the face of it it is indeed extraordinary, but having considered this aspect of matters, too, most anxiously and most carefully I have come to the conclusion that it is explicable upon the basis of what Mr. Lucas calls arrogance, or something very like it - and there is evidence from Ah Ming that the accused's attitude at the Central Government Offices car park was "proud and aggressive - bullying - beastful," and evidence from Mr. Tisdall that the accused was remarkably cool. 17. With respect, I am quite unable to agree that the accused had no motive. There is evidence that it was he who prompted the assault on Ah Ming by Ah Lung and the others, and, especially as he was a member of the Bar, he clearly had every motive in the world for wishing to dissociate himself from the incident. 18. Mr. Hazan has commented upon Ah Ming's evidence that the accused said that he had no driving licence, which from the rest of the evidence seems unlikely, although there is no direct evidence to the contrary, but however that may be I do not think that anything turns upon this. Probably the most likely explanation, it seems to me, is that Ah Ming is mistaken in this. 19. I agree with Mr. Hazan that there is no direct evidence that the accused had access to an I.B.M. Prestige Pica typewriter on which, according to a defence witness, Mr. Hui, the draft statement exhibit P.P.4 which the accused is said to have prepared for Mrs. Eu was typed. However, we do know, again from Mr. Hui, that a letter (exhibit P.21) dated August 17th, 1978, apparently written to Mr. Eu by the accused, was also typed on a Prestige Pica. Mr. Eu makes no bones about owning such a machine, and Mr. Hui confirms his evidence that the invoices and receipts exhibit P.D.1 were typed on it. Mr. Hazan, of course, seeks to rely upon this evidence as belying Mr. Eu's evidence that it was not he who typed the draft statement exhibit P.P.4 on his typewriter, but I do not think that it does. In my view it is inconclusive. Of course, if it was the accused who typed the draft statement exhibit P.P.4 or caused it to be typed, it follows upon the evidence that he must have had access to a Prestige Pica or to someone who did. 20. I also agree with Mr. Hazan that there is really no direct evidence that his client has any aptitude or expertise in what Mr. Hazan calls "electronic gadgetry". He poses the question whether, had the accused "doctored" any of the tapes, he would have sent them to the U.S.A. to be tested. In my view, if, and I emphasise if, the accused was minded to attempt to deceive the court, he might well have wished for an expert opinion with a view to deciding whether they would be likely to pass muster in court. 21. Of the remaining witnesses called by the defence two testified as to character. I accept them as truthful and honest witnesses. 22. That brings me to the evidence of Mr. So upon which Mr. Hazan says that the defence relies very strongly. According to Mr. Eu when he first telephoned the accused on September 26th and intimated that he apprehended that Ah Ming and his employees would resist any attempt to re-possess the car the accused enquired how many people were working in the garage, and upon being told made some such remark as "Three will do", adding that the man they wanted had been in his chambers only shortly before. Mr. So says that he was in conference with the accused between 4.15 and 6 p.m. He says that he saw no stranger in the accused's chambers. He did not, however, say how familiar or otherwise he was with the members of the accused's staff. He says that the accused was present throughout the conference during which he took two telephone calls which gave him the impression that the accused was late for an appointment which he had made. It appears that he had no cause to try to recall these matters until October 12th when the accused told him that the police might wish him to make a statement in connexion with the conference on September 26th. The value of this evidence to the accused entirely depends, of course, upon the accuracy or otherwise of the recollections of Mr. So and Mr. Eu of the relevant times. To be fair, I think that Mr. So's recollection of the times is probably fairly accurate. But what of Mr. Eu's recollection of the time at which he first telephoned the accused on September 26th? At first he said "I would estimate some time between four and five". Asked whether it was made at half past four or five o'clock he replied "I would estimate it to be somewhere around that time". That does not, in my view, establish that the call was made after 4.15, when the conference began, and if it was made between 4 and 4.15 Mr. So's evidence would be worthless to the accused. I am afraid that I do not regard this evidence as anything like so strong in the accused's favour as Mr. Hazan would wish. 23. A matter which has not been canvassed before me in any detail is why, if, as Mrs. Eu says, the accused was aware that she had a spare car key, he should have remarked that had he known this he would not have told Ah Lung and the others to bring Ah Ming back. Having considered it I have come to the conclusion that the explanation must be either that he was not paying attention when Mrs. Eu told him about, and showed him, the spare key, or that it had slipped his mind. 24. In my judgment the whole matter really resolves itself into the question whether the prosecution witnesses are to be believed. There were discrepancies in their evidence. They did contradict themselves and each other in some matters. In my view, as I have said, the Eus and Ah Tai are not above lying when it suits their purpose. I believe that they have all been less than wholly truthful about some things upon this trial. I repeat that I have considered all the motives which they have for lying. I have approached their evidence with the utmost circumspection. The credibility of a witness is, of course, judged not on his evidence alone, but on all the evidence in the case (vide R. v. Turner et al.(3)), and judging the credibility of each witness in the light of all the evidence in the case and having warned myself that it is dangerous to convict upon the evidence of a fellow accomplice unless it is corroborated and that one fellow accomplice cannot corroborate another fellow accomplice, I am nevertheless wholly satisfied that all the prosecution witnesses including the Eus and Ah Tai were witnesses of truth on all matters directly appertaining to the issues joined between the Crown and the accused. The discrepancies and contradictions in their evidence notwithstanding, and that it is safe to convict upon their evidence even though in the case of the Eus and Ah Tai the only corroboration is that which emanated from Mr. Tisdall. 25. I am satisfied beyond reasonable doubt of the guilt of the accused of all the offences with which he remains charged, of which offences I accordingly convict him. 26. Dated this seventeenth day of April, 1980.
Representation: (1) (1973) 1 All E.R. 440 (2) (1978) C.A. No.1099 unreported. (3) (1975) 61 Cr. App. R. 67 at 84 per James, L.J. IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA (SITTING AT KOWLOON) CRIMINAL JURISDICTION CASE NOS. 252 & 273 OF 1979 -----------------
----------------- Coram: A.L. Leathlean, D.J. Date of Judgment: 17th April 1980 --------------------------------------------------- REASONS FOR SENTENCE --------------------------------------------------- To emphasize the gravity of the accused's conduct would only be to emphasize the obvious. In my view, except perhaps in extraordinary circumstances, such conduct should ordinarily inevitably attract an immediate sentence of imprisonment because it tends to strain the whole fabric of the administration of justice to breaking point. I do not think that I exeggerate when I say that had it not been for Mr. Eu's last minute change of heart it may very well have been strained beyond that point in this case. I have considered the report of Dr. Pang, a psychiatrist, and in particular that part of it in which he states that in his opinion a nervous breakdown is inevitable if the accused is sent to prison, but have come to the conclusion that that is not a sufficient reason for not imposing an immediate custodial sentence. I do not know what facts were found in R. v. Willis. It is not for me to comment here upon the suspended sentence which were imposed in that case or upon the Attorney General not having sought a review of them. I consider that the gross overall sentence which the accused deserves for the offences relating to the perversion of the course of justice is 3 years' imprisonment, and that the appropriate sentence for aiding, abetting, counselling and procuring an assault is a consecutive one of 1 month's imprisonment. I also consider it appropriate that the accused should be ordered to pay a sum not exceeding $20,000 towards the costs of the prosecution. Dated this 17th day of April, 1980.
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