The Queen v. Chan Yuk Chuen

DCCC000250/1991

HEADNOTE

1.        If a prosecution witness threatens to give evidence against the defendant unless he is paid not to do so, that amounts to blackmail whether the incriminating evidence which he threatens to give unless paid off is true or false.

2.        If a prosecution witness offers not to give evidence against the defendantif he is paid not to do so, that amounts to an attempt to pervert the course of public justice whether the incriminating evidence which he offers not to give if paid off is true or false.

IN THE DITRICT COURT OF HONG KONG

CRIMINAL JURISDICTION

CASE NO.: 250 OF 1991

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Coram: H.H. Judge Bokhary in Court

Date of hearing: 21 and 27 June 1991

Date of delivery of verdict and reasons therefor: 1 July 1991

1. The Crown's case runs along these lines. At all material times there were - as indeed there still are - pending charges of assault, blackmail and theft against a Mr. LAI Man-chai. At all material times the Defendant was due to give evidence for the Crown on those charges against Mr. Lai.

2. On the 5th February 1991 and on the two days subsequent thereto, the Defendant went up to Mr. Lai, in a wooden but in Ma Hang Yuet Village used by Mr. Lai for the storage of merchandise, and told Mr. Lai, in effect, that he would give evidence aginst Mr. Lai on those charges unless Mr. Lai paid him $30,000.00 but that he would not if Mr. Lai paid him that amount.

3. So there were, on the Crown's case, three such instances. Each instance has given rise to one charge of blackmail contrary to section 23(1) and (3) of the Theft Ordinance, Cap. 210, and one charge of attempting to pervert the course of public justice contrary to Common Law. Thus one finds : three charges of blackmail - the 1st, 3rd and 5th charges - based on what happened on the 5th, 6th and 7th respectively of February 1991; and three charges of attempting to pervert the course of public justice - the 2nd, 4th and 6th charges - based on what happened on those three days respectively.

4. Ultimately and after some initial confusion, Mr. Lai's evidence was to this effect. On the 5th February 1991, the Defendant referred to the case against him, and indicated that if he paid him $30,000.00 he would disappear when the time for him to give evidence as a prosecution witness came or, failing that, he would simply say whatever came into his mind when giving evidence. He said that he would think about what the Defendant had said. On the following day, the 6th, the Defendant returned to press him for an early answer, repeating the offer not to turn up as a prosecution witness if paid $30,000.00. And on the day following that, the 7th, the Defendant again returned and pressed him for an early reply.

5. Is Mr. Lai's evidence accurate? If it is, then there is no reasonable doubt that what the Defendant was doing in each instance amounted to telling Mr. Lai this. He would give evidence against Mr. Lai if Mr. Lai did not pay him $30,000.00. But if Mr. Lai paid him that amount, then he would refrain from giving evidence against Mr. Lai, either by not turning up in Court or, if he turned up, by making up evidence harmless to Mr. Lai.

6. Mr. Lai is put forward by the Crown as someone who has committed - although he has not yet been convicted of - assault, blackmail and theft. For himself, Mr. Lai has in his favour the presumption of innocence. But in the Defendant's interest, I propose to approach Mr. Lai's evidence with all the caution with which I would approach the uncorroborated evidence of an accomplice of bad character. I am not saying that that is an accurate description of Mr. Lai's evidence. Rather I am indicating the caution with which I propose to approach it.

7. Approaching his evidence with such caution, I find myself satisfied beyond reasonable doubt, after having watched and listened to him with great care when he was in the witness box, that Mr. Lai's evidence is accurate. I find that the facts are as contended for by the Crown. And I do so even without having to rely on the evidence of Mr. SO Yuk-tak, an employee of Mr. Lai. In fact, however, I am satisfied beyond reasonable doubt that Mr. So gave accurate evidence when he said that on the 12th February 1991, during Mr. Lai's absence from Hong Kong, the Defendant said to him that Mr. Lai has promised him $30,000.00 so that he would not go to Court as a witness. Such evidence corroborates or supports Mr. Lai's account. But, as I have indicated, I would accept Mr. Lori's account even in the absence of Mr. So's evidence.

8. There was the handing over by Mr. Lai to the Defendant - and the acceptance by the Defendant from Mr. Lai - of $5,000.00 under an arrangement organised by the police. But I do not propose to deal with that incident in any great detail because it would not carry the Crown's case very far if I were not satisfied beyond reasonable doubt of the accuracy of Mr. Lai's evidence on what happened oh the 5th, 6th & 7th of February 1991. Of course, I am, as I have indicated, so satisfied.

9. Those being the facts, what is the position in law?

10. Whether the incriminating evidence which the Defendant threatened to give, but offered not to give, against Mr. Lai would have been true was not canvassed before me.

11. I deal first with blackmail. If someone threatens to say something against another unless paid off, it does not matter whether what he or she threatens to say is true or false. If, for example a secretary were to threaten her boss that she would tell his wife that they were having an affair unless he paid her a sum of money, the threat would constitute menaces within the definition of blackmail whether it was a threat to reveal a real affair or concoct a false story of an affair. It makes no difference that the threat to say something detrimental is a threat to do so in Court. In short, if a prosecution witness threatens to give evidence against the defendant unless he is paid not to do so, that amounts to blackmail whether the incriminating evidence which he threatens to give unless paid off is true or false. What the Defendant did amounts to blackmail as charged.

12. Also, the truth or falsity of the incriminating evidence which the Defendant was offering to withhold if paid to withhold the same is irrelevant to the charges of attempting to pervert the course of public justice. In R.v. Kellett [1975] 3 All ER 468, Stephenson L.J., giving the judgment of the Court of Appeal, said this after referring to the Bishop of Lincoln's Case (1637)3 State Tr 770, :-

"    With this authority in mind we would not consider that the offence of attempting to pervert the course of justice would necessarily be committed by a person who tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or to refrain from giving false evidence. Secondly, with this among other authorities in mind, we think that however proper the end, the means must not be improper. Even if the intention of the meddler with a witness is to prevent prejury and injustice, he commits the offence if he meddles by unlawful means. Threats and bribery are the means used by offenders in the cases, and any pressure by those means - or by force as for example by actually assaulting or detaining a witness - would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it "through affection, fear, gain, reward, or the hope or promise thereof' (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear of hope."

13. The present case is not one of a witness being bribed not to give evidence or to alter it. Rather it is a case of the witness himself soliciting a bribe not to give evidence or to alter it. If a witness is offered such a bribe an accepts it, both the offeror and the witness would be guilty of a conspiracy to pervert the course of public justice. If a witness solicits a bribe and is promised one, both the witness and the promisor would be guilty of such a conspiracy. We have already seen Stephenson L.J.'s statement to the effect that the offer to the witness would constitute an attempt to pervert the course of public justice on the part of the offeror. I have no doubt that the solicitation by the witness would constitute an attempt to pervert the course of public justice on the part of the witness. It is the "course" and not the "ends" of public justice which is concerned here. And the course of public justice must not be polluted by unlawful means. In short, if a prosecution witness offers not to give evidence against the defendant if he is paid not to do so, that amounts to an attempt to pervert the course of public justice whether the incriminating evidence which he offers not to give if paid off is true or false. What the Defendant did amounts to attempting to pervert the course of public justice as charged.

14. In the result, I convict the Defendant on all the charges.

Representation:

Miss Yasmin Mahomed, c.c. for the Crown.

Mr Kenneth G.M. Chan instructed by D.L.A. for the Defendant.