The Queen v. Alexander Lau

DCCC000298A/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 298 OF 1981

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Coram: His Honour Judge Downey

Date: 27 March 1982

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REASONS FOR VERDICT

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INTRODUCTION

1. In March of last year, Vonchai Tumtonkitkul was arrested in Hong Kong upon a warrant, issued pursuant to a request by the authorities in Holland that he be extradited to that country to stand trial for his alleged involvement in trafficking in dangerous drugs in that country. I will refer to him as "the defendant", purely for convenience and to avoid any confusion. He has been so described or referred to in the many exhibits placed before me and by many of the witnesses who have given evidence in this case. But, it is right that I should state that, in terms of the laws and procedures with which I am familiar, he has not yet been put on trial for these or any other criminal offences.

2. In due course, the hearing of the application for the extradition of the defendant was fixed to begin on the 8th June, 1981 before Mr. Alexander Lau, a Senior Magistrate then sitting at Causeway Bay Magistracy. Mr. Lau is the accused in this case. The hearing of the application continued over the next four days until the 12th June, 1981, when the accused adjourned the hearing to the 16th June 1981 to consider his ruling on a submission that the defendant had no case to answer. For reasons which will emerge later, the accused did not deliver his ruling until late in the afternoon of the 17th June 1981, when he committed the defendant to prison to await his formal surrender to the Dutch authorities. The defendant then applied to the High Court for a Writ of Habeas Corpus ad Subjiciendum, and that application was heard by the Full Bench on the 6th, 7th and 10th August, 1981, when the Full Bench granted the application and released the defendant.

3. Prior to, and during the course of, the hearing before the Full Bench, those representing the Crown and the defendant discovered that there were several and, in some instances, substantial differences between the typed record of the proceedings before the accused in June and their recollection of what had been said or done during those proceedings. Furthermore, a comparison of the accused's manuscript record of the proceedings, which was then before the Full Bench, and photocopies of his manuscript record, as it existed on the 18th June, 1981, revealed, or appeared to suggest, that significant alterations had been made to the original manuscript record kept by the accused.

THE CHARGES

4. As a result of further inquiries into the matter, the accused was arrested, on the 25th November, 1981, and formally charged with attempting to pervert the course of public justice and misconduct in a public office. The charges to which the accused has pleaded "not guilty, in their final amended form are as follows:-

Charge A

Statement of Offence

ATTEMPTING TO PERVERT THE COURSE OF PUBLIC JUSTICE, contrary to Common Law.

Particulars of Offence

Alexander LAU, on a day unknown between the 17th day of June 1981 and the 5th day of August, 1981, in this Colony attempted to pervert the course of public justice in High Court Case Miscellaneous Proceedings number 841 of 1981 being an application by Vonchai Tumtonkitkul for a writ of habeas corpus ad subjiciendum by making material and false alterations to the minute of proceedings of case number CB MP 142/81 which was his record of extradition proceedings involving the said Vonchai Tumtonkitkul as Defendant intending thereby to pervert the course of public justice.

Charge B.

MISCONDUCT IN A PUBLIC OFFICE, contrary to Common Law.

Particulars of Offence

Alexander LAU, on a day unknown between the 17th day of June 1981 and the 5th day of August 1981, in this Colony, being and acting as a Senior Magistrate with the intention of improperly benefiting himself and without proper regard to the interest of Vonchai Tumtonkitkul in his application for a writ of habeas corpus ad subjiciendum in the High Court namely Miscellaneous Proceedings number 841 of 1981, dishonestly altered his minute of proceedings of case CB MP 142/81 which was his record of extradition proceedings involving the said Vonchai Tumtonkitkul as Defendant.

Charge C

MISCONDUCT IN A PUBLIC OFFICE, contrary to Common Law.

Particulars of Offence

Alexander LAU, on a day unknown between the 17th day of June 1981 and the 5th day of August 1981, in this Colony, being and acting as a Senior Magistrate with the intention of improperly benefiting himself and without proper regard to the interest of Vonchai Tumtonkitkul in his application for a writ of habeas corpus ad subjiciendum in the High Court namely Miscellaneous Proceedings number 841 of 1981, altered his minute of proceedings of case CB MP 142/81 which was his record of extradition proceedings involving the said Vonchai Tumtonkitkul as Defendant.

5. Charge C is, of course, an alternative to Charge B, the only difference being the omission of the word "dishonestly" in the particulars of the offence;

6. I will deal with the law and, in particular, the essential ingredients of these offences later. But, what in substance the Crown alleges against the accused is that he inserted into his manuscript record entries relating to certain statements, which are attributed to Mr. Gordon Hampton, the solicitor acting for the defendant, and to the accused, which were never said at that stage of the proceedings, or at all. The first entry (hereinafter referred to as "Insertion A") appears at page 82 of the typed record (p.177 of the manuscript record before the Full Bench). It reads:-

"Mr. G. Hampton - The deft. does not want to give evidence. It is that I can say that he has agreed with Mr. Corkery."

The second entry ("Insertion B") is at page 83 of the typed record (p.178 of the manuscript record), and reads:-

"Court: Mr. Hampton has already said that his client did not want to give evidence."

The third entry ("Insertion C") appears on the same page(s) and reads:-

"Court: Yes, I am quite aware Mr. Hampton has already indicated that deft. did not warn[want] to say anything. If so, the accused is committed to be surrendered."

7. It is common ground between the Crown and the accused that these entries or insertions do not appear in the original manuscript record, photocopies of which were supplied to the Crown and the defendant's solicitors on the 18th June 1981. The alterations to the original manuscript record are blatant. It is not disputed that they were made by the accused at some time between the 18th June 1981 and the 31st July 1981, when the typed record was finally supplied to the parties and the High Court.

8. I should, perhaps, and that on page 181 of the original manuscript record there appears the following entry;

9. "C R E to the accused"

At least, that is how everyone involved in this matter has interpreted what the accused has written. At a very late stage of the trial I expressed some doubt whether the first part was, indeed, "CRE", which everyone has assumed to be shorthand for "charges read and explained". In the typed record (at page 82) the entry reads:

"Court: May the charges be read. Charges put to the accused. "

In the manuscript record before the Full Bench the word "could" appears for "May". The change must have been made when the first typed draft was proof-read. However, these uncertainties and changes are not, in my view, very important. What is important is that the Crown says that the charges were never read or explained (or put) to the defendant.

10. I must consider this aspect of the case when I assess the totality of the evidence before me. But, in relation to the charges now before me, I am not directly concerned with whether the charges were read or explained to the defendant. That would be a relevant and probably very material matter to a court sitting to review the conduct of the proceedings before the accused. In certain circumstances, the fact that a Magistrate had falsely recorded that a certain procedural requirement had been complied with, when he knew that that was not the case, might be the basis for a charge of attempting to pervert the course of justice or misconduct in a public office. But, in this particular case the accused is not charged with keeping or making a false record. He is accused of altering his original manuscript record, or, more precisely, his minute of proceedings of case number CB MP 142/81. The alterations which were made to this part of his record are not, in my view, material. They merely express more fully what is understood to be the gist or meaning of the short-hand version in the original. Alterations of this nature, standing alone, cannot, in my view, form the basis of a criminal indictment. If it were otherwise, the machinery of justice would grind to a halt, with scores of judges and magistrates awaiting trial, and few, if any, judges qualified to try them! I am, therefore, principally and almost entirely concerned with the three insertions I have already referred to.

THE PROCEEDINGS IN CASE NUMBER CB MP 142/81

11. In order to understand the background to these charges, and with a view to proving some of the ingredients of the offences, the Crown has endeavoured to recreate or reconstruct the events and atmosphere of the various proceedings before the accused in June of last year. This has necessarily taken up a considerable amount of time. But, in my view, it was time well spent, because some knowledge and understanding of the conditions which then prevailed are essential to a proper assessment of the evidence, and to enable me to do justice to the parties to these proceedings: and - if I may say so, without appearing to be unmindful of my main and paramount duty - to the various witnesses.

12. The account which follows is derived from a perusal of the voluminous documentary evidence before me, the oral testimony of witnesses who were present in the accused's court at various stages, and such inferences as I consider can be fairly and reasonably drawn from such evidence. Much of it is not seriously disputed. In addition to these abundant sources, I have drawn on other facts of which I consider I am entitled to take judicial notice, i.e., facts which are so notorious that they do not have to be formally proved. Although these additional facts have not been touched on directly, or at all, during this trial, I venture to express the view that they, too, would not seriously be challenged.

13. Between the 8th and 12th of June 1981, the defendant was represented at the hearing by Mr. Michael Corkery Q.C. and Miss Filan Chua, instructed by Messrs. Hampton, Winter & Glynn. Mr. Hampton and Mr. Llewellyn, solicitors of that firm, were also present. The Crown was represented by Mr. Hugh Sinclair and Mr. Patrick Nicholas from the Attorney-General's chambers. Mr. Frank Stock, Senior Assistant Crown Prosecutor, was also in court for part of the hearing, looking after two lawyers from Holland. The Crown's application for the defendant's extradition was vigorously opposed on several grounds. There were lengthy submissions. The accused was asked to make two rulings - one of them in the middle of Mr. Corkery's submission of no case to answer. At times there were somewhat heated exchanges between counsel. At one stage Mr. Sinclair apparently suggested that Mr. Corkery was endeavouring to intimidate the accused. On one or more occasions, Mr. Corkery had complained about Mr. Sinclair's attempts to "have an extra bite at the cherry in terms of addresses to the court.

14. At some time prior to the 16th June, the accused prepared a written ruling on Mr. Corkery's submission, from which it appears that he probably expected to see Mr. Corkery and Miss Chua in court again on the 16th June. However, late in the afternoon of the 15th June the accused telephoned Mr. Sinclair at the latter's chambers and raised some queries about the proceedings. There is some conflict as to what was said, but I am not concerned with that. The following morning, instead of reading out his written ruling, the accused was faced with an application by Mr. Stock that the accused should disqualify himself because of his ex-parte communication with Mr. Sinclair. Apart from occasional and the usual adjournments, the whole of that day and most of the next was spent on lengthy submissions on both sides. Mr. Hampton was now representing the defendant, Mr. Corkery having returned to England on the 13th June 1981. At about 3.30 p.m. on the 17th June 1981 the accused rejected Mr. Stock's application, and also refused his further application for an adjournment to consider applying to the High Court for a prerogative writ. Towards the end of the day, the accused began to read his ruling and ended by committing the defendant without first giving him an opportunity to give evidence or call witnesses. Either before or shortly after the accused began to read his final ruling, Mr. Sinclair was on his feet again, addressing the accused, whereupon Mr. Hampton also rose and objected to Mr. Sinclair having another bite at the cherry. What was said and done at this late hour is what I must endeavour to determine in the light of the evidence before me.

15. Looking back on these events, albeit with all the benefits of hindsight, I consider that it was most unfortunate that the accused did not grant the Crown's request for an adjournment, at least until the following day. To adopt the oft-quoted words of Tindal, C.J. in Hayward (1833) 6 C. & P. 157 at 159, a short adjournment at that point would have given ".. time for the blood to cool, and reason to resume its seat. " It is, in my view, clear that by the time the accused came to deliver his final ruling, everyone involved in the case was affected by strong feelings of one sort or another. It is not for me to say whether the accused was wrong not to disqualify himself. Many considerations would have to be borne in mind, including the matter of further delay and expense to the defendant. But, Mr. Stock's application was, in my view, properly made. The accused's ex-parte contact with Mr. Sinclair was, to say the least, extremely unwise and unjudicial. If the accused was troubled by certain aspects of the case before him, he should have mentioned them in open court on the morning of the 16th June.

16. It is, in my view, clear from the accused's ruling on the disqualification application (pages 20-21 of Exhibit P.33) that he was considerably upset by this challenge to his fitness to continue with the case, based on a disputed conversation with Mr. Sinclair. It was then late in the day and, in the light of all that had happened previously, the occasion was one which I consider was pregnant with opportunities for error, not only on the part of the accused, but also by those directly involved in the matter. Some degree of calm may have been present while the accused was reading the rest of his final ruling, but it was the proverbial lull before the storm. At the conclusion of his ruling the earlier conditions returned in a somewhat aggravated form. Mr. Sinclair told me that he was feeling a trifle exasperated and that this may have communicated itself to the accused. Mr. Hampton was angry and at times he and Mr. Sinclair were on their feet and speaking almost at the same time. There was some whispered conversation between counsel seated at the bar table. The accused was somewhat bemused and taken aback by it all. Those representing the Crown probably felt very frustrated by the fact that, after some seven days of legal argument, the accused had still made an error which might place the committal in jeopardy.

17. In the ciroumstances then obtaining, it is not surprising that the accused's original record was in barely legible handwriting. Nor would it be surprising to discover that matters had been wrongly recorded or not recorded at all. Unlike their counterparts in England, Magistrates in Hong Kong do not have legally-qualified clerks to assist them in taking a note of the evidence and counsel's submissions. It would equally not be surprising if what was said by one of the participants was not heard, or fully heard, by the others. These considerations no doubt explain why there were gaps and differences in their recollections when they gave evidence before me. It is against this kind of background that I must assess their evidence on the crucial aspects of this case. Before I do so, I will say something about the relevant law.

THE LAW AND THE MATTERS TO BE PROVED

18. The first principle I must keep constantly in mind is that it is for the Crown to prove, beyond reasonable doubt, that the accused did the acts which are alleged to constitute the offences charged against him, with whatever guilty state of mind is required by law. It is not for the accused to prove anything, least of all his innocence. That is presumed from the moment that the criminal machinery is set in motion. The fact that he has not given evidence is not an indication of his guilt. The right to remain silent at all stages of a criminal trial is a right enjoyed by every person accused of a crime - by the highest and the lowest; by the rich man and the pauper. The exercise of that right may cause certain practical difficulties, in the sense that, insofar as I have to consider the accused's version of the events in question, I am restricted to the evidence which I have heard and the inferences I can properly draw therefrom. In that sense, too, the Crown's task may be eased. But the burden upon the Crown, of proving the guilt of the accused beyond reasonable doubt, is not altered or lessened by the accused's failure to give evidence.

19. In relation to the first charge - attempting to pervert the course of justice - it is clear from the authorities (see Murray The Times 23rd February 1982 and Selvage [1982] 1 All E.R. 96) that the Crown must establish

20. In the circumstances of this case, the Crown must prove that when the accused altered his record by adding the three insertions referred to he knew that they were false in the sense that he knew that neither he nor Mr. Hampton had said what is there attributed to them, and that he made those alterations with the intention of producing an unjust result to the defendant's application for Habeas Corpus.

21. On the evidence I am satisfied that the course of justice had begun on the 18th (if not the 17th) June 1981, and that by the time that the accused altered his record, he well knew that an application for Habeas Corpus was pending. If it is proved that he knew that those alterations were false, I am satisfied that it was done with the intention of causing or inducing the Full Bench to uphold his decision and dismiss the defendant's application, thereby prejudicing the defendant and, to some extent, putting himself in a more favourable light before his superior brethren.

22. In relation to the other charges, the law is, unfortunately, less clear. Although it seems to be accepted that there exists at common law a wide-ranging offence of misbehaviour in a public office, there is very little modern authority on the scope or limits of the offence. It was resurrected in Llewellyn-Jones [1968] 1 Q.B. 429, where Lord Parker, C.J. said (at pp.436-437):

"Be that as it may, it seems quite clear in the judgment of this court that there are cases where the element of dishonesty is at any rate not specifically dealt with. It is to be observed that in Bacon's Abridgment, 1740 ed. at p.744, it is recognised that wilful breaches of the duties of an office may be punished by fines, etc.

It is to be observed that in the case of Reg. v. Marshall, Lord Campbell put the matter quite generally in this form: '... no doubt a judge who maliciously obstructs the course of justice is guilty of a misdemeanour.' Finally, in Rex v. Borron, Abbott C.J. dealt with the matter in this way; that concerned a case of the conduct of a magistrate. He said:

'The present case affords an unusual, if not a solitary instance, of address, in the language of demand and menace. They are, indeed, like every other subject ofthis kingdom, answerable to the law for the faithful and upright discharge of their trust and duties. But, whenever they have been challenged upon this head, either by way of indictment, or application to this court for a criminal information, the question has always been, not whether the act done might, upon full and mature investigation, be found strictly right, but from what motive it had proceeded; whether from a dishonest, oppressive, or corrupt motive, under which description fear and favour may generally be included, or from mistake or error. In the former case, alone, they have become the objects of punishment.'

Accordingly the court proposes to take the same line as the trial judge did when he came to rule on the argument presented before him, when he said that he did not propose to attempt to give an exhaustive definition of what was covered by misbehaviour in a public office, it being sufficient to say that in his opinion what was alleged and what he proposed should be alleged in the count was sufficient. This court proposes to take the same line and to look at the words of the indictment, and looking at those words the court is satisfied that at any rate what is there alleged, if proved, would constitute the offence at common law of misbehaviour in a public office."

More recently, in Dytham [1979] 3 All E.R. 641, Lord Widgery C.J., after referring to his own pronouncement in the previous case, said (at p.644):

"       So also in R v Wyat, a case tried in 1705 it was held that 'where an officer [in that case a constable] neglects a duty incumbent on him either by common law or statute, he is for his fault indictable'. Counsel for the appellant contended that this was too wide a statement of principle since it omitted any reference to corruption or fraud; but in Stephen's Digest of the Criminal Law are to be found these words:

'Every public officer commits a misdemeanour who wilfully neglects to perform any duty which he is bound either by common law or by statute to perform provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter'

In support of this proposition R v. Wyat is cited as well as R v Bembridge, a judgment of Lord Mansfield. The neglect must be wilful and not merely inadvertent; and it must be culpable in the sense that it is without reasonable excuse or justification.

In the present case it was not suggested that the appellant could not have summoned or sought assistance to help the victim or to arrest his assailants. The charge as framed left this answer open to him. Not surprisingly he did not seek to avail himself of it, for the facts spoke strongly against any such answer. The allegation made was not of mere non-feasance but of deliberate failure and wilful neglect. This involves an element of culpability which is not restricted to corruption or dishonesty but which must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment. Whether such a situation is revealed by the evidence is a matter that a jury has to decide. It puts no heavier burden on them than when in more familiar contexts they are called on to consider whether driving is dangerous or a publication is obscene or a place of public resort is a disorderly house: see R v Quinn, R v Bloom."

23. With the greatest respect to one so experienced in the criminal law (and in this field in particular), I do not find this attempt to define the ingredients of the offence very helpful, because it is somewhat circular. Furthermore I am required by law to give reasons for my verdict, unlike a jury. Whilst I am of the view that many difficult questions of fact can safely be left to a jury, ignorant of the law and selected at random, I apprehend that there are grave dangers in leaving them to decide whether certain conduct of a public officer is such as to "call for condemnation and punishment. " Such vague words can so easily be used as a pretext for exacting vengeance. That is not within the power of a temporal judge!

24. For the puposes of the case before me, I would hold that the conduct in question must be deliberate and wilful; it must be done with knowledge or foresight that it will or may result in a serious injustice being done, and with an intention of improperly gaining some personal benefit, not necessarily of a material kind, and in complete disregard of the interests of the person or persons to whom the public duty is owed. If it is proved that the accused, when he made the three insertions referred to, intended to mislead the Full Bench and the parties to the application as to what was said at that stage of the proceedings before him, as distinct from a genuine attempt to improve his record, then I think that he would be guilty of misconduct in a public office.

THE EXCHANGES AFTER THE RULING COMMITTING THE DEFENDANT

25. I have already adverted to the conditions in court after the accused had finished reading his ruling. That certain words were spoken by one of the participants and not heard, or misheard, by the others is to some extent borne out by the evidence of the various witnesses on one aspect, namely, the reference to Mr. Corkery, which is part of Insertion A. The precise words uttered in conjunction with Mr. Corkery's name differ, according to the witnesses' evidence. But, whereas Mr. Hampton, Mr. Llewellyn and Miss Gough, who was Mr. Hampton's secretary at the time and made a shorthand note of this stage of the proceedings (Exh. P.40), all agree that something was said regarding something being agreed with Mr. Corkery, Mr. Sinclair could not remember it being said and Mr. Stock said that he did not recall Mr. Corkery's name being mentioned. Mr. Hampton's recollection was that his reference to Mr. Corkery was made shortly after the accused had started to read his ruling, with a view to preventing Mr. Sinclair from having yet another "bite at the cherry", whereas Mr. Llewellyn, and Miss Gough thought that it was said after the accused had finished reading his ruling. It may be that these differences are really due to defects of recollection, but on the evidence before me, including the accused's own records, I am left with the fairly clear impression that Mr. Corkery's name was mentioned and that it was mentioned after the accused had finished reading his ruling and had pronounced his decision to commit the defendant. It may be the case that it was mentioned during a fleeting consultation between Mr. Sinclair and Mr. Stock. It must be recognised that this part of the proceedings spanned a very short period of time, during which counsel were bobbing up and down.

26. However, I must focus my attention on the three insertions I have referred to earlier. Has the Crown proved beyond reasonable doubt that the substance of these insertions is false in the sense that nothing of the kind was said or ever occurred? It is not, in my view, sufficient for the Crown to prove that the exact or precise words, recorded by the accused in his final record, were not uttered. The question is whether the Crown has proved beyond reasonable doubt that nothing resembling those words was spoken by Mr. Hampton or the accused. Just as the various witnesses' recollections differ as to the exact words used at this, or any other, stage, it would have been virtually impossible, in my view, for the accused to record at the time the ipsissima verba of counsel. Assuming, for the time being, that when the typed record was being prepared, the accused was genuinely attempting to improve his record, the likelihood of his being able to recall the precise words would be diminished by the passage of time and other factors. It must be remembered that, at the end of June 1981, the accused was transferred to Western Magistracy. Between the 17th June and the date when he prepared the amended record, he would have been trying other cases.

27. Fortunately, in this case I do not have to struggle with the problem of the credibility of the witnesses. With varying degrees of success, they were all honestly trying to recall what was said and done on the afternoon in question. There was absolutely no trace of any malice or resentment on their part towards the accused. Although there are discrepancies in the evidence, the witnesses were unanimous and positive that Mr. Hampton never said "The defendant does not want to give evidence. " Having given the most careful and anxious consideration to all the evidence in this case, I accept their evidence on this issue. Accordingly, I am satisfied beyond reasonable doubt that Mr. Hampton did not utter what is attributed to him in the first sentence of Insertion A. Whether the accused uttered words similar in substance to those in Insertions B and C is a more difficult question, for reasons which will soon emerge. Whatever, if anything at all, was said by the accused may have got lost in the heated atmosphere. But in the light of the totality of the evidence, I think that it is unlikely that Mr. Hampton's name was mentioned twice by the accused. If it was mentioned, as Insertion B suggests, it may not have been heard by others in court. But, I think that it is unlikely that it was mentioned again as Insertion C suggests. It is, of course, possible that no one heard these two purported ripostes from the bench, although they were in fact uttered. If they were uttered, I do not think that they were expressed in the precise from as shown in the record.

28. The difficulties which I face in relation to Insertions B and C stem mainly from parts of Mr. Llewellyn's evidence. In examination-in-chief, after referring to Mr. Sinclair having said something about the defendant giving evidence he was further examined by Mr. Marshall, as follows:-

Later in his examination-in-chief, he was referred to page 83 of the typed record

Later on, however, he qualified these answers in the following words

29. This evidence is extremely significant because, if it is true, it opens up the probability that something was said or done which, at least, gave the accused the clear impression that the defendant had indicated, in some fashion, that he did not wish to give evidence.

30. I am fairly sure that these answers came as a surprise to Mr. Marshall. In his final address, understandably and quite properly, he dealt, at length, with some nine reasons why I should reject this part of Mr. Llewellyn's evidence as being unreliable. No one else in court heard these words. There was no reaction by Mr. Hampton or any of the other lawyers. Mr. Llewellyn did not note them in his notebook: nor had he mentioned this earlier. He was confused. Miss Gough's shorthand note did not include these words.

31. These were valid comments, powerfully put. I have considered them very carefully, along with Mr. Lee's counter-points, and I have taken into account all the surrounding circumstances before coming to my conclusion on the reliability of Mr. Llewellyn. It has taken me some considerable time. But, at the end of the day, I am unable to accept the submission that in this respect, or in any other respect, Mr. Llewellyn was so unreliable as a witness that I should reject these answers. I do not think that he was confused. He had similar difficulties of recollection to those of other witnesses. He was quite firm that Mr. Hampton had not said what was attributed to him in Insertion A, but that the accused did say words along the lines of part of Insertions B and C. He is a solicitor with no inconsiderable experience as an advocate. His ability to hear and recall these words or similar words is, I think, probably due to the fact that he was the only advocate who had not been involved directly in the lengthy and, at times, vigorous submissions leading up to this stage, with the exception of Mr. Nicholas, who was present to take notes. There is some doubt, however, as to whether Mr. Nicholas did so in full.

32. Precisely how the accused formed the impression that the defendant did not wish to give evidence is hard to determine. It may have stemmed from the absence of Mr. Corkery and Miss Chua. More probably, I think that it arose from Mr. Hampton's answer, where he referred to Mr. Corkery, which was, I think, in reply to a question from the bench, which Mr. Hampton may have misheard or misunderstood. There is some slight support for this, and Mr. Llewellya's evidence, in the form of Miss Gough's note.

33. The importance of this evidence of Mr. Llewellyn is that it served as a block with which Mr. Lee could build his ingenious "reconstruction" of the probable exchanges between bench and bar at the relevant time. I am not persuaded that Mr. Lee's reconstruction is an accurate account of what happened, but in addition to his basic block, there is some support in the evidence of other witnesses. Bearing in mind the fact that Mr. Hampton is partially deaf - he missed two questions when he was giving evidence before me - and all the surrounding circumstances, Mr. Llewellyn's evidence, which I accept, leaves me in doubt as to the falsity of Insertions B and C.

34. When the accused came to prepare his record for the typist, I think that he was in error in attributing his impressions to Mr. Hampton in the way he has done so. But, on the totality of the evidence I am not satisfied beyond reasonable doubt, that he knew that he was making insertions which, in substance, were totally false. In his endeavour to improve his record weeks later - a difficult and dangerous exercise at any time - I think that he confused his own firm, but erroneous, impressions with what was said at various points, and that confusion was, I think, what led him to make Insertion A. In doing so, he has done a very serious wrong to Mr. Hampton, who is a solicitor and advocate of considerable experience and skill, but I am not satisfied that he did so alter his record with a view to perverting or interfering with the due course of justice in respect to the defendant's application for Habeas Corpus.

35. In coming to these comclusions I have not overlooked the evidence of the discussions between the accused and Mr. Wilson and Mr. Trehey, his fellow Magistrates at Causeway Bay Magistracy, or the letters dated the 6th August 1981, in response to the affidavits by Mr. Sinclair and Mr. Llewellyn pointing to certain errors in the typed record. If the other evidence had obliged me to take a different view, these pieces of evidence might have had the cogency which Mr. Marshall claimed for them. But quite independent of my views on the other evidence, I am satisfied that the discussions between the Magistrates after these unfortunate proceedings, were solely concerned with the accused's mistake before the committal, and not with what occurred afterwards Nor do I consider that the accused's inquiries about his power to review indicate that he knew perfectly well that what had happened in court was what Mr. Marshall referred to as "Situation 3", and not "Situation 4", or that he was already then thinking of some way of rectifying any mistakes which may have occurred after the committal. After all that had happened to him in those two days, and in the light of the little evidence I have, from Mr. Wilson, of his approach to his work, I do not think that he was in a position to appreciate fully which situation had prevailed in court, or to appreciate the subtle distinctions between them or to consider the prospects of the defects being rectified or the prospects of the defendant being successful or unsuccessful in his application to the Full Bench. In the rather unusual circumstances in which he found himself, he must have come out of court on the afternoon of the 17th June 1981 feeling something like a boxer who has gone the distance, but lost heavily on points!

36. His letters, however, stand in another light. Read literally, the second paragraph is untrue. The typed record was not a true record of what he "had taken down .... during the whole of the proceedings." What he had "taken down" is to be found in his original manuscript, copies of which had been given to the parties on the 18th June 1981. That record may have been illegible, but the fact that there had been insertions is, in my view, fairly obvious. The accused should, in my view, nevertheless, have drawn these amendments to the attention of the parties. But, in all the circumstances, and bearing in mind the time he was given to deal with the allegations in the affidavits, and the fact that he was then working in Western Magistracy, I do not regard these letters as evidence of an attempt to pervert the course of justice. For these reasons I find him not guilty on the first charge.

37. What then is the position regarding the second and third charges? The alterations were clearly deliberate. But, in view of the conclusions I have come to on the evidence, I do not think that they can be characterised as wilful, or that they were done with a reslisation that it might result in an injury to the public interest in the outcome of the defendant's application to the High Court. I do not rule out the possibility that, in deciding to improve his record, he may have been motivated by a desire to save face. Within limits, there is not much harm in that. But, in a jurisdiction where the rights and liberties of individuals may depend upon what is recorded by judges and magistrates, it is, in my view, an almost sacred duty to keep a fair and accurate record of the proceedings. If, in the circumstances of this case, I were to ask the questions suggested by Lord Widgery C.J. in Dytham, supra - does the accused's conduct call for condemnation and punishment? - my answers would be:

"Condemnation, perhaps, although it is a somewhat strong word to apply in this case. Punishment? No. Certainly not by this court."

38. Accordingly, although I strongly disapprove of what was done in this case, I am not satisfied that the conduct of the accused was so culpable as to amount to the offences of misconduct in a public office charged against him I, therefore, find him not guilty on the second and third charges.

39. In view of the conclusions I have reached on the facts, it is unnecessary for me to deal with Mr. Lee's submissions that the charges were defective in law. I would merely say that I am not persuaded that the second and third charges are so defective; any defect in the first charge was cured by amendment.

40. In the result the accused is acquitted on all three charges and is discharged.

Representation:

Mr. W.R. Marshall, Senior Assistant Crown Prosecutor, for the Crown

Mr. Martin Lee, Q.C. assisted by Mr. Wesley Wong and Miss Maria Yuen for Accused