HKSAR v. Tse Nicholas and Another

HCMA 39/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 39 OF 2003

(ON APPEAL FROM WSCC 926/2002)

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Coram: Hon Beeson J in Court

Dates of Hearing: 22 and 23 October 2003

Date of Judgment: 28 November 2003

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J U D G M E N T

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1.The Appellants were jointly charged with one count of Conspiracy to Pervert the Course of Public Justice, contrary to Common Law and section 159A of the Crimes Ordinance Cap. 200 and punishable under section 159C of the Crimes Ordinance, Cap. 200. The charge is as follows:

"Conspiracy to pervert the course of public justice, contrary to common law and section 159A of the Crimes Ordinance, Cap. 200 and punishable under section 159C of the Crime Ordinance, Cap. 200.

Particulars of Offence

Nicholas TSE and LAU Chi-wai, on divers days between the 23rd day of March 2002 and the 12th day of April 2002, in Hong Kong conspired together and with SHING Kwok-ting and CHOW Chu-fai to pervert the course of public justice by allowing the said SHING Kwok-ting to falsely present himself, in substitution for the said Nicholas TSE, as the driver of private car with registration number 450 in the police investigation of a traffic accident involving the said private car which took place at Cotton Tree Drive near Lamp Post No. 32618 on the 23rd day of March 2002"

2.They pleaded not guilty and were tried in the Magistracy over a period of 5 days in September 2002. Each appellant was convicted after trial. The first Appellant (A1) was sentenced to serve a Community Service Order of 240 hours duration and the second Appellant (A2) was sentenced to 6 months' imprisonment. The Secretary for Justice applied to review the sentences imposed by the Magistrate. On 18 November the review application was heard and the sentences were confirmed. The Appellants appeal against their convictions only.

Brief facts

3.A1 who is aged 21, crashed a car on Cotton Tree Drive, Central at around 6:00 in the morning on 23 March 2002. PW1, who was employed by the Emperor Entertainment Group as a driver, often had the task of driving A1. He gave evidence under immunity that he received a telephone call about 6 a.m. from A1, who told him he had crashed his car in Garden Road Central and that he was still at the scene of the accident. No one had been injured but a road-side railing had been damaged.

4.PW1 told A1 to leave the scene and travelled to the scene himself, collecting a company motor vehicle belonging to his employer along the way. While he was en route to the scene of the accident, A1 telephoned him again. PW1 asked if A1 had been photographed at the scene, A1 said he had not.

5.PW1 approached a police officer who was at the scene and asked if it would be:

"All right to have someone stand in, be all right to have someone stand in."

6.The police officer directed PW1 to a traffic police officer on duty at the scene. PW1 identified the officer, who was A2, as having dealt with him at the scene and, later in the morning, at the police station.

7.PW1 approached A2 and asked if it was alright to have someone stand in. A2 responded by asking: "Do you have an audio recorder on you?" PW1 did not answer that. A2 took PW1's identity card and walked away, he later returned and said: "You won't hand him over, right?". PW1 drove his employer's vehicle from the scene to the police station following A2. At the police station, A2 told him it would be all right to let someone stand in for A1. PW1 was worried about the prospect of acquiring points which would affect his driving licence and thus his professional employment. A2 told him that probably would not happen and he might only get a warning.

8.At the police station, PW1 phoned A1 to tell him a stand-in was likely to be permitted and that he was thinking a colleague named Woo should be the stand-in. When he suggested that Woo be handed over, A1 replied, "alright". PW1 had taken the precaution of phoning Woo earlier, from the scene. A2 proposed PW1 take a breath test. PW1 was worried about doing so because he had consumed alcohol the night before. When he told A2 that, A2 just showed him a meter with a zero reading, told him a breath test had been completed and had him sign a police form for the associated procedure (Exhibit P2).

9.At the police station there was a further discussion with A2 as to how PW1 could explain two vehicles being at the scene, when there was only one driver. A2 proposed an explanation whereby PW1 could say he took a taxi to A1's home to retrieve a phone and returned to the scene in the second car. As the police had arrived at the scene there would be no need to summon them. PW1 left the police station at about 8:00 a.m. and went to his place of employment after meeting his colleague, Woo.

10.He telephoned A1's personal assistant, Mr Chow Chi Fai (PW2), told him that A1 had crashed the car and that he, PW1, had stood in for him. A number of telephone calls was made between PW1, A1 and Mr Woo. Various forms referred to in evidence by PW1 as having been completed on 23 March 2002 were completed on that day. These were Exhibit P2, the drink-driving procedure form and the Notice Requiring Identification of Driver form, Exh. P3. Another Notice, similar to Exh. P3, was addressed to Tse Brothers Co. Ltd and given to PW1; that was completed on 5 April (Exhibit P5).

11.On 29 March, PW1 attended the police station and made a written statement after he was contacted by the police. The officer who took the statement was PC 33246 (PW 5). PW1 said PW5, whom he had not met before, and A2 prepared a statement for him, A2 telling PW5 what should be included. Both PW1 and PW5 signed the statement and PW1 was given a copy. (Exhibit P4)

12.PW1 then went to see A1 at his home, read this statement out to him and told him to drive more carefully in future. A1 answered by saying: "Police are helpful, I know that, all right". PW1 left the copy of the statement at A1's home.

13.On 5 April, PW1 collected A1 and Mr Chow from the airport in the course of his duties and took them to A1's home. PW1 filled out the driver identification form given to him by the police relating to Tse Brothers Co. Ltd, the registered owner of the car. A1 was a person authorised to sign on behalf of the Company, but although he had been asked to sign he did not answer. Mr Chow signed the form on behalf of the Company. PW1 said that he had to go upstairs to get the company chop to put on the form. Although he advised A1 he was doing so, A1 who was playing video games at the time, did not say anything.

14.The Magistrate's conclusions, having heard the evidence, were as follows:

"As to D1, I am satisfied the clear and irresistible inference to be drawn from the evidence is that D1 was in agreement with PW1 at least, that PW1 would present as the driver in place of the true driver that is to say himself, D1 - in order to deflect or frustrate an anticipated police enquiry into any offending or possible offending and possible consequential prosecution arising from the accident involving D1, his car and the associated damage, and that this pretence would be continued with. The agreement with this intention, constitutes a conspiracy to pervert the course of public justice."

15.His conclusion in respect of A2 was as follows:

"As to D2, I am satisfied the evidence clearly established that he agreed with PW1's stand in proposal and then acted on 23 and 29, and generally, in the manner described by PW1 in evidence, to implement the agreement, knowing full well and intending that would inevitably deflect or frustrate the police enquiry into any offending or possible offending and any possible consequential prosecution arriving from the accident involving D1, his car and the associated damage. Such an agreement and intention constitute conspiracy to pervert the course of public justice."

16.He continued:

"The potential benefit from this conspiracy to A1 was obvious enough. The potential benefit to D2 is less clear. It may have been a simple matter of taking a shortcut in his duties in processing the purported driver rather than commence an enquiry into the identity and whereabouts of the real driver, a potentially bigger task. The evidence does not make A2's motive clear.

What is clear is that in the case of each defendant, the prosecution has proven all elements of the charge to the required standard and each defendant is convicted accordingly."

Grounds of Appeal

17.The perfected grounds of appeal for A1, filed on the 2 April 2003, are as follows:

"	1.	The Magistrate erred in that he convicted the Appellant upon a defective charge.
		In particular the Particulars of Offence were defective in that:-
		(i)	It was alleged that the conspirators agreed to pervert the course of Public Justice by allowing SHING Kwok-Ting to substitute himself for the Appellant in the Police Investigation of a traffic accident. Whilst proof of interference with a Police Investigation may, depending upon the circumstances, be sufficient to establish the actus reus of the Common Law Offence of Attempting to Pervert the Course of Justice, proof of a shared intent that the Police be misled simpliciter would not be sufficient to establish involvement in Statutory Conspiracy in terms of the charge.
		(ii)	It was alleged that the conspirators agreed to allow SHING Kwok-ting to mislead the Police. A shared intention that SHING be permitted, that is to say not prevented from misleading the Police was insufficient to establish involvement in a Statutory Conspiracy in terms of the charge. The conviction of any conspirator required proof as against him that he intended to play some part in the agreed course of conduct necessarily leading to the commission of an offence.
	2.	The Magistrate erred in that before he convicted the Appellant it was incumbent upon him to find as against the Appellant:
		(i)	that he agreed with at least one other conspirator that a course of conduct would be pursued that,
		(ii)	would necessarily amount to the commission of the Common Law offence of Attempting to Pervert the course of Public Justice and,
		(iii)	that he intended to play some part in the agreed course of conduct.
		The Magistrate in fact found as against the Appellant that he was "in agreement with PW1, at least, that PW1 would present as the driver in place of the true driver - that is to say himself D1 - in order to deflect or frustrate an anticipated police inquiry into any offending or possible offending and possible consequential prosecution arising from the accident involving D1, his car and the associated damage and that this pretence would be continued with".
		That finding, upon the assumption that it was open on the evidence, did not provide a sufficient basis for convicting that Appellant.
	3.	The Magistrate's finding adverse to the Appellant that he was in agreement with PW1 in the terms set out in his Reasons for Verdict, (referred to in Ground 2) is contrary to the weight of evidence. There was no direct evidence that the Appellant was party to an agreement as found by the Magistrate nor was there circumstantial evidence to support an irresistible inference that the Appellant was party to such an agreement. The Magistrate gave insufficient weight to evidence which mitigated against the Appellant being party to such an agreement.
	4.	The Magistrate erred in that he found PW1, SHING Kwok-ting to be honest and reliable. The Magistrate failed to give any or sufficient weight to evidence which indicated that PW1 was in fact a manifestly unreliable witness.
	5.	In all the circumstances the Appellant's Conviction was unsafe and unsatisfactory."

18.The perfected grounds of appeal for A2 are as follows:

"	(1)	The learned Magistrate erred materially in failing to take into sufficient account the fact that PW1 had in the course of his testimony clearly retracted material parts of the evidence given earlier. The retracted evidence was of pivotal importance to the case concerning D2. Such retractions had the effect of creating a gap in crucial areas of the prosecution's case against D2. Alternatively, such material retractions damaged the credibility of PW1, a key witness of the prosecution. Accordingly, the conviction of D2 is unsafe and unsatisfactory.
	(2)	The learned Magistrate erred in disbelieving the evidence given by DW4 on the basis that his evidence was particularly detailed and that such cogency must be due to DW4's dishonest attempt to help a colleague at the expense of justice. There was no direct evidence that DW4 was so motivated, and the learned Magistrate failed to direct himself properly on the necessary precautions before drawing such an adverse inference against the reliability of DW4. Accordingly, the conviction of D2 is unsafe and unsatisfactory.
	(3)	The learned Magistrate erred in holding that the charge of conspiracy to pervert the course of public justice was properly laid against the Appellants, when the particulars of the charge allege the act of perversion as one of "allowing" PW1 to falsely present himself as the driver of the Ferrari. An act of "allowing" is essentially an act of passive omission and as such, a conspiracy not to do an act does not amount in law to a criminal offence."

Consideration of Grounds

19.In Ground One it was submitted that the Magistrate erred in convicting the 1st Appellant on a defective charge because proof of a shared intention that police be misled by PW1, Shing Kwok-ting, simpliciter, was not sufficient to establish A1's involvement in a statutory conspiracy.

20.The relevant part section 159A of the Crimes Ordinance, Cap. 200 states:

"If a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, he is guilty of conspiracy to commit the offence or the offences in question."

21.Counsel in this case Mr Cheng Huan SC, who was trial counsel, began the trial with a challenge to the charge before the Magistrate who dealt with the matter thus:

"In a preliminary issue taken with the reference in the statement of offence to "contrary to common law", it has been submitted the charge is defective in that the offence charged has been abolished by the coming into being of section 159E(1) of the Crimes Ordinance, Cap. 200.

Suffice it for present purposes to say I am in disagreement with that proposition. The reference to the "contrary to common law" is plainly a reference to the "pervert the course of public justice" element of the charge. The charge is not thereby defective."

22.The offence which the Appellants allegedly agreed on and intended to commit was the Common Law offence of perverting the course of the public justice. That offence is committed where a person, or persons:

(1) acts or embarks upon a course of conduct;

(2) which has the tendency to; and

(3) is intended to pervert;

(4) the course of public justice.

23.In HKSAR v Wong Sing Yim, Peter and others CACC 510/2002, the Court of Appeal reviewed the characteristics of the offence. The rationale of the offence, which is one against public justice, is to criminalise acts or conduct which may result in a miscarriage of justice, or which may mean that the ends of justice are defeated. The term "course of public justice" refers to curial proceedings which, although it usually refers to courts of law, is not restricted thereto.

24.To decide whether an act or conduct tends to pervert the course of public justice, it is necessary to look at the effect of such act or conduct on curial proceedings. Such proceedings need not actually be in existence at the time of the relevant act or conduct, or may never take place at all. It is sufficient that they are imminent, probable, or even possible at the time of the relevant act or conduct.

25.There must be a discernible link between the act or conduct being scrutinised and any possible, or actual curial proceedings. In The Queen v Rogerson (1992) 174 CLR 268 Deane J said:

"Police enquiries do not, of themselves, constitute "the course of justice", for the purposes of the offence of perverting the course of justice. It is necessary, in a case involving alleged conduct to divert or frustrate police enquiries, to identify some actual or potential relationship between the alleged conduct and some pending, probable or possible curial proceedings whose course the accused intended to pervert."

26.Secondly the actus reus must also involve an act or conduct which has a clear, or manifest, tendency to pervert the course of public justice. All that needs to be proved is a tendency, the prosecution need not prove that the tribunal was, or had been misled.

27.The third element is the requisite mens rea of the offence. The prosecution must prove not only the intention to do the act or embark on the conduct complained of; there has to be an intention to pervert.

"This means that when doing the act or embarking on the course of conduct complained of, the accused must also have known or contemplated the possibility of curial proceedings, so that in doing what he did, he would have realised that such act or conduct would have the manifest or clear tendency to pervert the course of public justice or that he intended this to be the effect."

The concept of perverting the course of public justice, really just means the deflection, frustration, impairment or hindrance of the ability of a court or tribunal in any actual, imminent, contemplated or possible curial proceedings to administer justice." Per Ma CJHC in HKSAR v Wong Shing Yim Peter and others [supra].

28.The grounds of appeal for the Appellants overlapped in certain respects and for that reason I considered them together where relevant. I was advised by Mr Lok SC that on behalf of A2 he associated himself with the argument which underlies A1's first ground of appeal.

29.Counsel for A1 sought to rely on R v Anderson [1986] AC 27 at 39P when Lord Bridge said:

"The necessary mens rea of the crime, statutory conspiracy, is established if and only if, it is shown that the accused, when he entered into the agreement intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve, nothing less will suffice, nothing more is required."

30.The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. The intention to carry out the crime constitutes the necessary mens rea for the offence. (Yip Chiu-cheung v R [1994] 2 HKCLR 35, per Lord Griffiths.)

31.On behalf of A1 it was argued that the Magistrate had not addressed the submission that the particulars of charge were defective and that although he quoted Lord Bridge's analysis of the requisite mens rea, he had not considered the ramifications of that analysis in terms of this particular case.

32.Thus while the definition in Yip (supra) might be correct in relation to allegations of Common Law conspiracy, where the allegation was brought pursuant to section 159A, Cap. 200, it was a necessary ingredient of the offence that the conspirators intended by their actions to further the objects of the conspiracy.

33.In R v Siracusa [1990] Cr. App. R. 340, the court considered the import of Lord Bridge's comment in Andersen and O'Connor LJ stated (p. 349):

"Participation in a conspiracy is infinitely variable: it can be active or passive. If the majority shareholder and director of a Company consents to the Company being used for drug smuggling carried out in the Company's name by a fellow director and minority shareholder, he is guilty of conspiracy. Consent, that is the agreement or adherence to the agreement, can be inferred if, it is proved he knew what was going on. The intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity. Lord Bridge's dictum does not require anything more."

34.The Court of Appeal, accepted that Lord Bridge's analysis of the mens rea of statutory conspiracy, required proof of knowledge of the unlawful object of the conspiracy, coupled with proof of participation and a furtherance of the criminal purpose.

35.Counsel for A1 argued that Siracusa did not decide that proof of involvement in statutory conspiracy was complete in circumstances where the alleged conspirator had knowledge of the conspiracy, but did nothing to further the object of the conspirators.

36.Nor did it support the effectiveness of the charge, such as A1 faced, which alleged knowledge coupled with an allegation of permitting, in other words, not preventing, an identified individual from carrying out his criminal object.

37.Counsel conceded that the Magistrate, in his Reasons for Verdict, had found the existence of the intent against the Appellant, but contended he had not gone on to consider how a failure to plead the identified intent as an ingredient had affected the efficacy of the charge.

38.To illustrate the alleged defective nature of the particulars of the offence, counsel compared them with the Magistrate's Reasons for Verdict and Statement of Findings. The Magistrate found that A1 was in agreement with PW1, that PW1 would present himself as the true driver in place of himself, as opposed to allowing, that is not preventing, PW1 from presenting himself as the true driver. That was a finding of positive agreement as opposed to passive acquiescence, which is all that A1 had done.

39.Second, the object of the agreement was to deflect or frustrate an anticipated police enquiry into any offending or possible offending and possible consequential prosecution. This was a finding of the existence of ulterior intent which the Magistrate, in order to convict the Appellant, felt obliged to make. Counsel concluded that this was a finding unrelated to the section of the offence under which the Appellants were charged.

40.Finally, it was submitted that the Magistrate had effectively although not expressly, amended the particulars of the offence before convicting A1, thus convicting A1 on a case he never had to meet, in circumstances, where he, as Magistrate, should have complied with section 27 of the Magistrate's Ordinance, which requires him to amend. On this ground alone, A1's conviction was said to be flawed and should be quashed.

41.Mr Lok's 3rd ground of appeal was related to considerations falling under the first ground argued for A1. He contended that to allow someone to present themselves as driver was a passive omission and that a conspiracy not to do an act does not amount in law to a criminal offence. This ignored the fact that the actual offence involved an agreement that PW1 could be substituted for the real driver, with the intention that the course of justice would be perverted. That could not have been accomplished without the agreement of and contrivance by A2, an officer involved in the investigation. The degree of involvement in a conspiracy, as amongst the conspirators can be infinitely variable - it need only be slight. However on the evidence of PW1 the involvement of A2 was much greater than passive omission. His active assistance was crucial and substantial. The charge was properly laid against him.

Comment

42.Part of counsel's argument was that a distinction must be made between a common law conspiracy and a statutory conspiracy under s. 159 of the Crimes Ordinance, Cap. 200.

43.The argument runs thus: a statutory conspiracy relates to an agreement by the conspirators relating to a course of conduct they agree to pursue. That agreement together with the individual's intention to pursue the agreed course of conduct with the other conspirators constitutes the mens rea of the statutory offence.

44.In a common law conspiracy, now confined to conspiracy to defraud, the agreement cannot be to pursue a course of conduct as there is no statutory basis for that being an element of the offence. Rather the agreement is one to commit an offence, or to achieve a lawful result by unlawful means.

45.What was clear is that Mr Cheng Huan SC and, by his association with the argument, Mr Lawrence Lok SC, would like this court to adopt the strictures of Lord Bridge in R v Anderson (supra) while ignoring the decision in Siracusa which sets out clearly that such a narrow interpretation cannot be placed on the words. They rely heavily on the necessity of having an intention to "personally participate".

46.The English Court of Appeal in Siracusa concluded that Lord Bridge's dictum should not be regarded as authority for the proposition that all conspirators must intend to play an active part in the agreed course of conduct. O'Connor LJ, giving the judgment of the Court, said: (p. 349)

"The last paragraph above cited must be read in the context of that case. We think it obvious that Lord Bridge cannot have been intending that the organiser of a crime who recruited others to carry it out would not himself be guilty of conspiracy unless it could be proved that he intended to play some active part himself thereafter. Lord Bridge had pointed out at p. 259 and p. 38 (of the Cr App R report) respectively that:

"in these days of highly organised crime the most serious statutory conspiracies will frequently involve an elaborate and complex agreed course of conduct in which many will consent to play necessary but subordinate roles, not involving them in any direct participation in the commission of the offence or offences at the centre of the conspiracy.""

47.As the essence of a conspiracy is the agreement it would be absurd to allow a conspirator to escape responsibility for his part in that agreement because he did not participate actively in what was proposed. Here A1 knew what was proposed, knew the proposal was for his benefit and agreed to it. He was kept informed by PW1, his employee, of what was happening. He knew from PW1's communicating to him the contents of the statement PW1 gave to police that PW1 had stood in as driver and approved it. Given his initial agreement, his acceptance of what was going on and his apparent declining to stop the work of his employees on his behalf he must be taken as being fully engaged in the conspiracy.

48.There is no sound basis for the argument presented by counsel on this first ground. Counsel argues that obvious activity must be established before a conviction can follow. That argument not only ignores the judgment in Siracusa but ignores the fact of the essence of conspiracy residing in the initial agreement. A conspirator must have knowledge that the act or conduct complained of will tend to pervert the course of justice and that the act was done, or the conduct embarked on, with the intention that justice be perverted.

49.I am satisfied that the charge was not defective and that the Magistrate was aware of the matters on which the prosecution had to satisfy him. The argument that there is a great difference between the elements of a common law and a statutory conspiracy has not been made out. Nor has counsel convinced me that the comparative inactivity of A1, or the alleged "passive omission" of A2 must mean that he was not part of the conspiracy. This ground does not succeed.

Ground 2 - A1

Ground 3 - A2

50.The second ground of appeal, was that in order to find participation in a statutory conspiracy, there had to be a finding, adverse to the individual, that he intended to and in fact did play some part in furthering the criminal object of the conspirators. There was no direct evidence A1 played any active role in furthering the object of the conspiracy. He played no part in the initial negotiations with A2 and the Magistrate had not found he was organising the conspiracy, or that he took an active part in furthering the unlawful purpose, beyond non-intervention.

51.Apart from the initial phone call, the Appellant's potential involvement was limited to listening to the witness statement read to him by PW1 and saying: "Police are helpful, I know that, all right" and the incident on 5 April when he permitted the use of the Company chop and allowed PW2 to sign the document on behalf of Tse Brothers Ltd.

52.Counsel pointed out that in his Reasons for Verdict and, later, at the review hearing the Magistrate apparently accepted the submission that A1's involvement was passive only. It was not surprising therefore that the Magistrate failed to make a finding against him that he did anything to further the ultimate object of the conspiracy. As this element was crucial to conviction the Appellant's conviction should be quashed.

53.The Magistrate was correct to find that participation, such as that exemplified by the behaviour of A1, need not be active and need not be any greater than informed acquiescence. It is the element of agreement which must be established. At the time of that agreement, which must be with at least one other person, the Appellant must have intended that the course of public justice be perverted and be aware that the conduct in which it was proposed to engage had a tendency to pervert the course of public justice and must intend it be so perverted. The link with curial proceedings must be discernible.

54.The plan to substitute a stand-in for the real driver would certainly have a manifest tendency to pervert the course of justice in that the court system would be manipulated to deal with a person who had no connection with the accident, or with any consequential offences. The manipulation occurred even before the consideration of whether charges might follow the event as the standard breathalyzer test had been avoided altogether.

Ground 3 - A1

55.This ground is founded on the complaint that there was no direct evidence that A1 was party to the agreement that PW1 should stand in as substitute driver, nor was there circumstantial evidence which would support an irresistible inference that A1 was party to such an agreement. It was submitted that inferentially there was a stronger case for the Appellant's non-involvement.

56.The Magistrate's finding was that A1 on the date of the accident, agreed with PW1 that he should present himself as the driver. The evidence to found that conclusion was that given by PW1 about a telephone call made to A1, from Central Police Station, after the accident (telephone call 6:57 a.m.).

57.The Magistrate summarised that call as follows:

"PW1, while at the Police Station, phoned D1 (A1) to tell him the stand in proposal was likely to be allowed by D2 (A2) and that he - that is to say PW1 - was thinking a colleague named Woo should be put forward as stand in. PW1 said when he proposed to D1 (A1) that Woo be handed over, D1 (A1) replied: "All right". PW1 said he had earlier phoned Woo from the scene."

58.The Magistrate was said to have significantly overstated the effect of PW1's evidence, in particular, the use of the term "proposal" suggested the Appellant had some prior knowledge of what was intended. The crucial issue was whether A1 reached an agreement with PW1 before offering someone else to stand in as driver, and whether, if he did so agree, he intended to frustrate a potential future prosecution.

59.There may have been an equally legitimate inference available on the evidence, that whilst A1 may have been told what PW1 intended, he never lent himself to any agreement that it should happen.

60.Counsel for A1 contended that if there was any conspiracy, it was between PW1 and A2, because there was no evidence of A1's prior knowledge about PW1's course of action, nor any evidence he knew what occurred between A2 and PW1 at Central Police Station.

61.Certainly there was circumstantial evidence from which the Magistrate having made the necessary assessment of PW1's credibility could infer the necessary agreement. There was the initial call to PW1 at 6 a.m. to report the crash - a further call from the 1st Appellant to PW1 as PW1 drove to the scene and another telephone conversation between PW1 and A1, when PW1, who by that time was at the scene, checked whether or not A1 had been photographed before leaving the scene.

62.Later when PW1 was at the police station he telephoned A1 to tell him a stand-in would be permitted and proposed that a colleague, Woo, be handed over. A1 assented by saying "Alright". PW1 thereafter completed documents admitting, falsely, he was the driver.

63.On 29 March 2002 PW1 signed a written statement at the police station confirming he was the driver - a statement he claimed had been prepared by a police officer PC33246 under A2's tutelage. That statement was brought to A1's attention when PW1 took it to A1's home and read it to him. This elicited the comment from A1, "Police are helpful, I know that, all right".

64.PW1 said that he had asked A1 to sign the driver identification form (Exhibit P5) but he made no reply. PW1 also needed the company chop for Tse Brothers Limited to affix to the form and told A1 he was going upstairs to get it - again A1 failed to reply. Subsequently the form was signed and the chop affixed by A1's personal assistant, Chow Chu-fai, in the presence of A1 who was occupied playing video games.

65.Although A1 may have played a less active part than other conspirators, it is in the nature of a conspiracy that one or more of the conspirators may have a greater knowledge of the venture, or be more deeply involved in it. Slight participation can be sufficient - here initial agreement to the plan for a substitute driver and consequential knowledge of and acquiescence in what his employees or underlings were doing would suffice.

66.Counsel for A1 relied on the view of Lord Bridge that the necessary mens rea can be established only if it is shown that at the time he entered into the agreement he intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve as Counsel argued that "to play some part" has to mean active participation.

67.The contention that A1 was an inactive on-looker who knew what was going on but had not joined in the agreement, ignores the reality that the substitution was for his benefit, that his employees were working to avoid his being involved in possible prosecution, that he was kept informed of developments throughout and although he declined to physically affix the company chop, or sign the driver identification form, he was aware of those tasks, necessary for the sustaining of the substitution plan being completed and knew too that the documents were supporting material that was untrue.

68.Suggestions by counsel that all this activity was undertaken only to prevent unwelcome publicity were nonsense. PW1 ran the risk of prosecution for his substitution if discovered a draconian solution if avoiding publicity was the sole purpose. The 1st Appellant was aged 21 at the time of this incident - he was kept informed about what was happening and it must have been plain to him that the substitution was designed to frustrate proper enquiries and mislead those considering possible prosecution. Yet he did nothing to stop the plan, nor did he advise the police that he had been the driver.

69.Counsel suggested that as the accident was "damage only" and had not involved another vehicle or driver there was no, or little, prospect of the driver being prosecuted. Thus there could be no intention to pervert the course of public justice as the necessary curial proceedings were not in train, a police investigation simpliciter not being curial proceedings.

70.This was not the case. The possibility of a prosecution was a real one. The offence of Careless Driving was one possible basis for a prosecution, as was a Blood alcohol offence. The Notice for the Identification of Driver spelled out the possibility of prosecution quite clearly. The Magistrate was aware of the ways in which a prosecution could be thwarted. A clear link with possible curial proceedings was known to exist.

Ground 4 for A1

Ground 1 for A2

71.The fourth ground of appeal (Ground 1 for A2) was that the Magistrate erred in finding PW1 honest and reliable and failed to give sufficient weight to evidence indicating he was manifestly unreliable.

72.PW1 had been convicted for a similar charge arising from the same incident and had already served his sentence of 4 months' imprisonment. He had been given an Immunity from prosecution. The Magistrate stated, when passing judgment on 2 October 2002, that the prosecution case rested very heavily on PW1 being accepted as an honest and reliable witness. He warned himself of the caution needed in dealing with the evidence of immunity witnesses.

73.The Magistrate made it clear there could be no conviction in the absence of his finding PW1 a reliable and honest witness. He stated in his Reasons for Verdict that he paid close attention to PW1's evidence and to the challenges to that evidence and his credibility. He referred to some discrepancies and uncertainties and found that most were explicable.

74.Having done so the Magistrate proceeded to examine the evidence of PW1 and assess it. He reviewed the evidence as a whole and reverted to PW1's evidence and the need for paying close attention to it, given discrepancies in his evidence, challenges made to his evidence and attacks on his credibility.

75.The Magistrate then examined the retraction by PW1 of his statement in examination in chief that at the police station D2 had expressly stated it was alright for him to stand in. The retraction appears in the trial transcript as follows:

" (i) In Chief

"	Q.	When you got back to the station what happened?
	A.	The he said "It's alright to let someone stand in."

(ii) Cross Examination

"	Q.	All right. Well, let's again look at another statement then, Mr Shing. Your evidence earlier to this court is that after going back to the station, you said and I quote. You said Mr Lau then said to you. "It's all right to let someone stand in." Do you still remember that?
	A.	Yes.
	Q.	Again, now exactly were these the exact words he said to you, "It's all right to let someone stand in"?
	A.	Yes.
	Q.	Now, again, Mr Shing, we can't find this line in any of the records we've been sent by the ICAC, you see. You accept that it's not written in any of the statements.
	A.	The previous utterings?
	Q.	Well, I'll say it to you again.
	A.	Yes, please.
	Q.	That after returning to the police station, Mr Lau said to you. You said these words, "It's all right to let someone stand in," and my question, in case you have forgotten, is quite simply whether you accept that that line did not appear in any of the statements of yours. You may of course go through the statements if you want.
	A.	No need.
	Q.	Do you accept that?
	A.	Yes, okay, I'll accept it.
	Q.	Again, something which you happened to recall later.
	A.	Whether I recalled that later?
	Q.	That's my question, Mr Shing, yes.
	A.	Well, if it was not said, then it was not said.
	Q.	Right, so if I may then ask you another question. Was it said at all then by Mr Lau?
	A.	Say what? Mr Lau say what?
	Q.	We're not playing with words here, Mr Shing. Your evidence to this court under oath was that Mr Lau upon returning to the police station said to you that it's all right to let someone stand in. My question to you is that in view of the complete absence of that reference in any of your statements, did Mr Lau in fact say that to you or not?
	Mr Wong: I'm sorry for trailing on that point.
	A.	No.
	Court:	Was that agreement with the proposition put to you or what do you mean by "no"?
	A.	Well, if it was not in the statement, then it was not said."

(iii) Re Examination

"	Q.	And could I ask you this? You said in evidence-in-chief that Mr Lau said, "It's all right to ask somebody to stand in." Why did you say that in evidence-in-chief?
	A.	I made a mistake by saying that."

76.The Magistrate dealt with that evidence as follows:

" This apparent retraction came at the end of a long period of evidence giving in which PW1 was, quite properly, being closely and assertively cross-examined as a to matters of detail. He had several times been called a liar and untruthful witness and told he was talking nonsense.

There was nothing at all wrong with the style and manner of the experienced cross-examiner. However, I was paying close attention, and formed the clear view this answer, and the manner in which it was given, were due to a temporary petulance born of natural discomfort and frustration. It certainly did not warrant the significance later given to it."

77.A further retraction complained of was what had been said by the 2nd Appellant about directions allegedly given by A2 to the officer who took PW1's statement.

" The second alleged retraction related to the 29 March 2002 when PW1 attended the police station to give a statement. In evidence in chief he said that A2 directed the officer taking the statement what to write and that he, PW1, did not say anything. In cross-examination on this point PW1 said he had no idea about the verbal exchanges between A2 and the officer taking the statement. PW1 agreed that A2 'should be' busy with another traffic case at the time. When re-examined he said that A2 spent less than a minute with him and the statement taking officer."

78.Thereafter the Magistrate said that having considered the criticisms of PW1's evidence, neither alone nor in combination were they sufficient to detract from the view he formed of PW1 as an honest and reliable witness. He reminded himself that the crucial evidence about PW1's corrupt dealings with the 1st Appellant and the 2nd Appellant was unsupported. He knew of the dangers in relying on such evidence.

79.Counsel for A1 referred to parts of PW1's examination-in-chief cross-examination and re-examination. He submitted there were serious discrepancies in his evidence, particularly between the account of the 6:57a.m. phone call given in examination-in-chief and re-examination. He also pointed out PW1's admission of imprecise memory as to the content of the phone calls made on 23rd. He submitted that PW1's evidence, at its highest, did not provide a sufficient basis for finding against A1 that he reached an agreement with PW1 to stand in as driver of the vehicle.

80.Counsel complained that notwithstanding the telephone call being the only evidence of primary fact upon which an adverse inference of involvement can be found against A1, the Magistrate had chosen not to deal at all with the alleged material discrepancies in PW1's evidence and that must affect his reliability.

81.Counsel for A1 made two points about PW1's evidence: First, there was a real danger that a witness who succumbs to temporary petulance was unlikely to be reliable and that for the Magistrate to treat PW1's evidence thus did not accurately reflect what happened at trial. The retraction was not temporary because it endured a direct question by the Magistrate during cross-examination and was continued in re-examination. The Magistrate had gone further than trying to explain the retraction, because in his Reasons for Verdict, he proceeded on the basis it never happened.

82.On behalf of A2 it was submitted that the retraction created a gap in crucial areas of the prosecution case against the 2nd Defendant. Both Appellants relied on it as damaging the credibility of PW1.

83.Counsel submitted that the wording employed by PW1 in re-examination was unequivocal, and could be interpreted only as meaning that he had retracted the version he had given in evidence-in-chief and consequently must have retracted the evidence that A2 allowed PW1 to stand-in the driver.

84.Even if it was not accepted that the Appellant retracted this part of the evidence, Mr Lok SC submitted that the prosecution case was weakened significantly by the reversal of PW1's words. PW1's account was corroborated by what A2 had said in cross-examination and re-examination, whereas the incriminating version put in examination-in-chief was not corroborated by anybody.

85.Given this conflict, there must exist a doubt whether A2 had agreed to let PW1 substitute himself as driver. On that ground, the prosecution had not discharged the burden of proving the corrupt arrangement alleged between PW1 and A2.

86.The Magistrate's view was that PW1 did not in fact retract his evidence; he dealt with the matter as quoted earlier at paragraph 76. Counsel for A2 submitted that the Magistrate must have relied on PW1's demeanour or manner to reach the conclusion that his retraction was "due to temporary petulance born of natural discomfort and frustration". Counsel argued it was logically inescapable that one of the versions given by PW1 must be untrue.

87.Counsel conceded that the Magistrate was usually in a better position to assess the demeanour of PW1, but suggested this court could examine the transcript to find any indication of petulance in the dialogue between PW1 and counsel. The real motivation for PW1's retraction was difficult to determine and in the absence of strong indications, it was unsafe for the Magistrate to explain the discrepancy by excusing PW1 on the grounds of frustration.

88.Although the Magistrate referred to the "seeming retraction" of the evidence given in cross-examination, it clearly was a retraction as Mr Ryan for the Respondent conceded at this hearing. However the Magistrate's explanation for it shows that he was relying on PW1 as a credible witness and, in any event, even without that item of evidence there was sufficient evidence from which the agreement could be inferred. As the Magistrate could accept or reject all or part of PW1's evidence it was a matter for him to decide in the context of the evidence as a whole.

89.As for the alleged retraction relating to events of 29 March 2002 that was a refining and narrowing of evidence relating to A2's part in directing the content of PW1's statement. Counsel for the Respondent submitted it amounted to a dilution of the evidence which is a more accurate description of what happened. It was for the Magistrate to assess whether the dilution was such that the effect of the evidence was nullified, or whether the direction as to the gist of the statement could be accomplished sufficiently in the time. Ultimately it was a question of whether he believed PW1's account, that he himself did not draft the statement.

90.For the furtherance of perverting the course of justice the important element was that this statement was in the name of PW1 who admitted therein that he was the driver and gave an account of how the accident occurred. As none of the content reflected what had actually happened, any directions to the statement taker could be in very simple form. If the Magistrate accepted PW1's evidence, there could be no doubt that as at 29 March 2002, A2 knew that PW1 was not the driver of the vehicle. What weight the Magistrate gave the diluted evidence was for him to decide.

91.These matters were argued in full before the Magistrate. He had placed PW1, correctly, as the lynch-pin of the prosecution case from the outset. PW1 had been subjected to lengthy, detailed and skilful cross examination. There was ample opportunity for the Magistrate to hear and see PW1 and note any discrepancies or inherent improbabilities that arose in the evidence he gave.

92.I was referred to a number of cases which examined the role of a Magistrate and comment on the significance of, and how he or she should carry out, the task of fact-finder and assessor of credibility. The comments of Stock J (as he then was) in R v Muriel Georgina Leung Cr. App. 21 of 1992 (unreported) are apposite in this context.

"Magistrates are appointed because they are considered competent to exercise the functions required of magistrates. Those functions include a heavy diet of fact findings, bringing to bear on each case their experience of human conduct, their intelligence and their common sense. They exercise their powers of assessment no less frequently than any other tribunal of fact. That is not to say that they are incapable of error. No one is infallible and it is the possibility of error, both as to fact and law, for which the appellate machinery is designed. I see no basis for any presumption that their powers of assessment are to be regarded with added caution. It remains the fact that he who has observed a witness is in a better position to assess credibility than he who has not."

93.A Magistrate in carrying out the assessment of witnesses is entitled to accept all, part or none of a witness's evidence. Having filtered the evidence he must examine it in the context, and within the parameters, of the case, warning himself where necessary of dangers inherent in evidence given e.g. as unsupported or uncorroborated evidence, or given under an Immunity, or by an accomplice, or by a witness under some form of disability or disadvantage which requires some special caution over and above the usual care expended on such assessment.

94.The appellate courts emphasise repeatedly that the Magistrate is the person in the best position to assess credibility. An appellate court will only interfere with a Magistrate's findings on credibility in exceptional circumstances. Those circumstances are where the appellate court decides that the Magistrate took a perverse view of a witness or if, in the context of all the evidence, the Magistrate's finding was unreasonable or irrational.

95.In this case there is nothing to justify this court interfering with the Magistrate's finding on PW1's credibility. All the undesirable features complained of by the Appellants were made known and were obvious to the Magistrate. The significance of the retractions of evidence were known to him and dealt with by him. The fact that the Appellants were unhappy with the conclusions he reached is not any justification for interfering with his findings of fact.

Ground 5 - A1

96.The fifth ground of appeal was that A1's conviction was unsafe and unsatisfactory; this was referred to as a "catch-all" provision by counsel. A1 sought to rely on the accumulation of matters raised in this appeal. The Magistrate had erred by referring to 9 telephone calls between PW1 and A1 during the relevant period, when telephone records disclosed only 6. Counsel suggested that the Magistrate might have been influenced wrongly by this mistake into giving PW1's evidence greater weight than it merited, but there is nothing to show that was the case.

Ground 2 - A2

97.The second ground for A2 was that the Magistrate erred in disbelieving the evidence given by DW4, as there was no direct evidence, as the Magistrate claimed, to show that DW4 was dishonestly attempting to help a colleague at the expense of justice. The Magistrate failed to direct himself properly on the necessary precautions he should observe before drawing an adverse inference about DW4's reliability.

98.DW4, PC 34537, was D2's colleague and they were in the team's working area at the Police Station on 23 March. His evidence supported D2's claim that he commented on the driver (PW1) he was dealing with as being "fishy". He confirmed that he had heard and seen PW1 taking a breathalyser test, a direct conflict with PW1's account.

99.The Magistrate noted that DW4 said he had no other dealings with the case, was not a personal friend of A2 and did not make any statement to the police, or ICAC, as a possible defence witness until July 2002. He made no written record about the matters on which he gave evidence which occurred in September 2002.

100.DW4 denied that he had anyone help him recall the events and said that, occasionally, he and his colleagues made remarks to each other about drivers they dealt with as being "fishy" or similar.

101.The Magistrate concluded in respect of both DW4 and DW5, who were the two colleagues of A2, that:

"Their evidence included inherent improbabilities and claims which strain one's credulity beyond breaking point. Also, particularly in the case of DW4, PC 34537, the claimed detailed recall of minor and commonplace of events that took place on a hectically busy morning shift months ago is just not capable of acceptance as being reliable and honest. I feel sure their evidence to the court owes more to their attempts to assist a colleague in the difficult circumstances in which he finds himself, rather than any desire to give an honest, reliable account in evidence. I did not believe either of them."

102.There is no basis for saying that the Magistrate misunderstood the evidence, or that he misdirected himself. Counsel had addressed him on that evidence at the end of the trial, so the importance of DW4's evidence in support of the 2nd Appellant's own evidence was fully canvassed before him. He was entitled to conclude that the likely reason for DW4's improbable recall of distant events he had hitherto had no need to remember, was a dishonest attempt to help a colleague. Even if he were not so entitled, his finding that he did not believe DW4 was in itself sufficient to exclude the evidence.

103.It is clear from the way he assessed the evidence that the Magistrate was performing the task for which he was appointed. He had seen DW4 give evidence, it was for him to consider the content of that evidence, and any inherent improbabilities, and assess its truth and accuracy. He explained why he did not accept DW4's evidence and there is no justification for interfering with his findings on that matter. This ground of appeal must fail.

Conclusion

104.Having considered the grounds of appeal and having heard counsels' arguments I am not satisfied that the grounds of appeal have been established, nor has it been shown that there was anything unsafe or unsatisfactory about these convictions. The appeal of each Appellant is dismissed.

Representation:

Mr B M Ryan, SADPP and Mr Gary Lam, SGC of Department of Justice, for the Respondent

Mr Cheng Huan SC, Mr JP Chandler and Mr Lawrence Hui, instructed by Messrs Yaddy Cheung & Co., for the 1st Appellant

Mr Lawrence Lok, SC and Mr Allen Lam, instructed by Messrs C L Chow & Macksion Chan, for the 2nd Appellant

Remarks:
Application for leave to appeal by the 1st Appellant to Court of Final Appeal. Application dismissed. Please refer to the appeal judgment of FAMC000016/2004.