Yuen Man Chiu Alias Henry M. Yuen v. The Queen

CACC000399/1980

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Coram: Roberts, C.J., Garcia and Liu, JJ.

Date of Judgment: 1st October, 1980.

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JUDGMENT

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Roberts, C.J.:

Introduction

1. Henry Yuen, a practising barrister, was convicted in the District Court on six charges.

2. On the first, aiding and abetting three persons to assault YUEN Kwong-ming on the 26th September, 1979, he was sentenced to imprisonment for one month.

3. On each of the second, third, fourth and sixth charges, of inciting respectively Sandra Eu, Charles Eu, TAI Ma-ho and Charles Eu (again) to pervert the course of public justice by making false statements to the police about an assault on YUEN Kwong-ming, he was sentenced to three years' imprisonment, the sentences to be consecutive to that imposed on charge 1 but concurrent with each other.

4. On the fifth charge, of attempting to pervert the course of public justice, by making a false statement to the police relating to an assault upon YUEN Kwong-ming, he was also sentenced to three years' imprisonment, concurrent with the sentences on charges 2, 3, 4 and 6.

5. A single judge gave leave to the defendant to appeal against both conviction and sentence on all charges.

Background Facts

6. The incidents which were the subject of the six charges had their origin in a dispute between Mrs. Sandra Eu and YUEN Kwong-ming ("Ah Ming") a garage owner about a substantial bill for repairs carried out by the latter to Mrs. Eu's Rolls Royce and for garaging the car.

7. This car was left by Mrs. Eu at Ah Ming's garage in Wanchai (the Kwong On Garage) in May 1979. Subsequently Mrs. Eu was asked to pay a substantial bill before Ah Ming would allow her to take the Rolls away.

8. On the 25th September, Mrs. Eu, her brother-in-law, Mr. Charles Eu, and TAI Ma-ho ("Ah Tai"), a mechanic employed by Mr. Eu, went to the Kwong On Garage to try to persuade Ah Ming to accept a lower price than that which he had asked, for the work done on the Rolls. They were accompanied by Mr. David Ling, a solicitor, who attempted on that occasion to negotiate a settlement with Ah Ming, but failed to do so. Mrs. Eu said that she would arrange for a mechanic of her choice to give the Rolls a test drive the next day.

9. On the afternoon of the 26th September, Mr. Eu was driven by Ah Tai to Mrs. Eu's flat in Century Tower in the afternoon. After a discussion between Mr. and Mrs. Eu as to how to deal with the recalcitrant garage owner, Mrs. Eu made telephone calls to the police in an effort to obtain their help in recovering her car. Thereafter, Mr. Eu telephoned the defendant, Henry Yuen, a practising barrister, who was a friend, though not a close one.

10. It is not in dispute that Mr. Eu explained to the defendant the impasse which had arisen over the Rolls and sought his help, nor that the defendant agreed to join Mr. Eu later that afternoon when the Rolls Royce was to be given a test drive. According to Mr. Eu, the defendant said that the owner of a vehicle had a right to repossess it using reasonable force to do so and when told that there were three or four mechanics at the garage, added that he would get three people to ensure that nothing would happen; he said that he would call Mr. Eu back when he had made the arrangements, and did so.

11. In the latter call, according to Mr. Eu, the defendant agreed to meet them at the Harbour Hotel in Wanchai, which was close to the Kwong On Garage, shortly after 6 that evening. The Eu and Ah Tai then left Century Tower and drove to the Harbour Hotel.

12. The defendant met them there shortly after 6 p.m. and introduced them to a man known as Ah Lung. The Eus and Ah Tai and the defendant drove to the Kwong On Garage in Mr. Eu's car. The Rolls was driven from the garage by Ah Tai, with Ah Ming beside him. Mrs. Eu and the defendant were in the back. Mr. Eu drove behind the Rolls, in his Rover; also in his car were Ah Lung and two other men who had arrived at the garage with Ah Lung.

13. The Rolls was driven to the C.G.O. car park, where there was an argument with Ah Ming about payment for work done on the car. The defendant took a leading part in this and tried to persuade Ah Ming to accept a lesser amount than that which he was claiming from Mrs. Eu. The discussions became heated and had led to no agreement when Ah Ming seized the ignition key from the Rolls Royce and ran away.

14. Mrs. Eu gave evidence that she told the defendant about this and added that he thereupon shouted "stop him bring back the key" to the three men who had arrived in Mr. Eu's Rover. They chased Ah Ming, caught him and assaulted him, inflicting bruises and abrasions on him. This assault formed the basis of charge 1.

15. The key was forcibly retrieved from Ah Ming and returned to Ah Tai, who had remained in the Rolls. He put it into the ignition slot, but before the Rolls could be driven away, Ah Ming returned to the Rolls, grabbed the key and ran away. Mrs. Eu thereupon produced another ignition key from her handbag and the Rolls was driven away by Ah Tai with Mrs. Eu in it to Century Tower. Mr. Eu and the defendant also drove there in the Rover.

16. Later that evening, Ah Ming went to the Central Police Station and lodged a complaint about the assault upon him. At Century Tower, the four discussed the incident and telephone calls were made in an effort to discover if Ah Ming had reported at a hospital, but this produced no result. Mr. Eu left. Mrs. Eu, the defendant and Ah Tai went out to dinner at the Hilton. While they were there, Mrs. Eu's son phoned, to say that the police had telephoned her. She therefore returned home with the defendant and Ah Tai.

17. When she got back to Century Tower, Mrs. Eu called the police and had a conversation with a woman police officer, who informed her that a complaint had been made by Ah Ming that he had been assaulted by three persons from her car. Mrs. Eu made this call from an extension in her bedroom, while the defendant listened on the main phone. During the call, the defendant sent to her, via Ah Tai various notes as to what she ought to say. While talking to the police Mrs. Eu agreed to go to the police station the following day to make a statement.

18. A discussion followed between Mrs. Eu and the defendant as to what should be done. According to Mrs. Eu, the defendant asked her to go to his chambers the following morning (27th) to sign a statement about the incident, which he would prepare. This she did. When she arrived Mr. Eu was already there, having come in response to a phone call from the defendant, during which he had told Mr. Eu that he had a statement prepared for Mrs. Eu to make to the police.

19. The defendant handed to Mrs. Eu a statement which he said he had prepared for her to submit to the police. This statement contained material falsehoods as to what happened on the 26th September, suppressing any mention of the three men. According to Mr. Eu, it was the defendant's idea that all those involved should tell the same inaccurate version of events which appeared in the draft statement put before Mrs. Eu. This meeting forms the basis of charges 2 and 3.

20. After this meeting, Mrs. Eu went to the Central Police Station where she made a statement based on the draft prepared by the defendant. This statement was untrue in relation to what happened at the car park.

21. On the 28th September, the defendant telephoned Inspector King, C.I.D., Central Police Station, in response to a message left at his chambers by the Inspector. This conversation was taped by the defendant. The tape was subsequently handed by the defendant to the police on 18th October and was produced in evidence. Its authenticity was not challenged.

22. This conversation contained denials by the defendant that Ah Ming had been assaulted or that any men had accompanied Mr. Eu to the garage. The defendant went to the Central Police Station later that morning and signed a written statement which was false in the same respects. This statement is the basis of charge 5.

23. During the afternoon of the 27th the defendant got in touch with Ah Tai at the latter's boatyard and informed him that he (the defendant) had told Mrs. Eu what to say to the police and that she had gone to make a statement to them. On the 28th, the defendant again phoned Ah Tai and said he wanted to discuss the evidence with him so that he would give the same evidence as Mrs. Eu. He told Ah Tai not to mention the fight and to say that he did not know the men. These conversations form the basis of charge 4. On the 29th Ah Tai went to the police and made a statement in which there was no mention of the three men.

24. On the 28th, the defendant phoned Ah Tai again and asked him to come to his chambers at once to fetch a statement for Mr. Eu. Ah Tai collected this and took it to Mr. Eu. The defendant also called Mr. Eu and told him that he had made a statement to the police and that he had sent a copy of it by Ah Tai for Mr. Eu to read. This copy duly reached Mr. Eu soon after the call. It was later found in Mr. Eu's possession, with amendments in his handwriting.

25. The following morning (the 29th), Mr. Eu went to the police and made a statement describing the incident in different terms from those in the statements furnished by Mrs. Eu and the defendant. He admitted the presence of the three men, asserted that they had been brought along by the defendant, and described the assault which had taken place.

26. On 30th September, the defendant and Ah Tai had dinner at the Jockey Club with Mr. Eu. There was a discussion between them about what the effect would be of the statement which Mr. Eu had made on 29th September to the police. The defendant asked Mr. Eu if he would tell the police that he (Mr. Eu) was the person who contacted the three men. This forms the basis of charge 6.

First charge

27. It was never disputed that Ah Ming was attacked; nor that he was attacked by Ah Lung and the other two men at the C.G.O. car park.

28. The defence was that the Crown had not proved sufficiently that it was the defendant who had brought the men to the car park, with the intention that they should either intimidate Ah Ming or attack him if this became necessary. If there is a reasonable possibility that the three men were brought there by someone else, the defendant would be entitled to be acquitted on this charge.

29. Mr. Hidden, who appeared for the appellant and whose clarity of argument and mastery of the record were of great assistance to us, drew our attention to various aspects of the evidence which tended to show that it was more likely that it was Mr. Eu who had arranged for the three men to accompany him in his Rover.

Timing of the phone calls

30. The first, and crucial, argument is that it could not have been the defendant who brought Ah Lung and his men to the Kwong On garage because he had no opportunity to get in touch with them.

31. In her evidence in chief, Mrs. Eu testified that she telephoned the Commissioner of Police's secretary at "about 5 p.m." She added that Mr. Eu telephoned the defendant; she does not in terms say that he did so after her call but this would be the natural sequence and this order of events is the one given by Mr. Eu.

32. What were Mr. Eu's movements on that afternoon? In her statement to the police Mrs. Eu said that Mr. Eu arrived at Century Tower (from where the call to the defendant was made) at about 4.30 p.m. with Ah Tai. Mr. Eu asserts that he went to the flat at about 4.00 p.m. Ah Tai says that Mr. Eu asked him about 5.00 p.m. to carry out a test drive of the Rolls and that he drove the Rover to Century Tower to pick up Mrs. Eu. According to Mrs. Eu, in her statement to the police, Mr. Eu and Ah Tai arrived to fetch her at about 4.30 p.m.

33. Mr. Eu claimed in cross-examination that he made his call to the defendant "some time between 4 and 5". When further questioned, he first admitted that it was "somewhere around 4.30 or 5" and later by implication that it could have been about 4.30 to 4.45.

34. If Mr. Eu's evidence is taken by itself, he made the call between about 4.30 and 5 (to take that answer which is most favourable to the defendant).

35. If Mrs. Eu and Ah Tai are to be believed, that call could not have taken place before 5.00 p.m. And the time at which it occurred is crucial, in view of the evidence of Mr. So, a solicitor who gave evidence for the defence. The substance of his testimony is that he was present in the defendant's chambers, in conference, from 4.15 to 6.00 on the afternoon of 26th September and that during that period there were two incoming calls, one at about 5.00 p.m. and the other about 5.30 p.m., that there were no outgoing calls and that the defendant did not at any time leave the room.

36. Mr. So asserted that he made a note of these matters a few days later, while they were fresh in his mind, after being told by the defendant that the police might get in touch with him about the conference.

37. It follows that, if Mr. So's recollection of times and events is accurate, the defendant, if he arranged for the three men to be at the Harbour Hotel, must have done so before Mr. So's arrival at 4.15 p.m. He could not have done so during or after the conference. This finished at 6.00 p.m. and the defendant arrived at the Harbour Hotel a few minutes later and Ah Lung was already there.

38. It would have been open to the judge to come to the conclusion that Mr. So's memory of events is at fault. But he did not do so. He finds that his "recollection of the times is probably fairly accurate". We see no ground on which we could properly disagree with that conclusion. The judge does not specifically find also that Mr. So's recollection was accurate in relation to the other important parts of his evidence, as to the number and direction of the calls during the conference, but it seems to be implied that he did so find in the passage in his judgment in which he comments that if the call by Mr. Eu was made "between 4 and 4.15 Mr. So's evidence would be useless to the accused". And indeed, so it would. It must be assumed though the judge does not say so in terms, that the judge found, as a fact that the call was made before 4.15.

39. Was there any evidence to support such a conclusion? Mr. Eu himself shifted between 4 p.m. and 5 p.m., his last answers suggesting 4.30 p.m. to 4.45 p.m. The evidence both of Mrs. Eu and Ah Tai put the call after 5.00 p.m., a time which would fit in with the evidence of Mr. So.

40. There is another aspect which the judge did not consider. Mr. Eu said that after he had called the defendant, the latter called him back. This is in direct conflict with the evidence of Mr. So, that there were no outgoing calls between 4.15 p.m. and 6.00 p.m. The judge did not resolve this clash, presumably because it could not arise if the relevant call occurred before 4.15 p.m.

41. Even after accepting that Mr. So's testimony was accurate, the judge could, after examining their conflicting accounts, have come to the conclusion that both Eus and Ah Tai were mistaken in their recollections of time and that he was prepared to find that the call had occurred before 4.15 p.m. But he did not weigh the evidence of Mrs. Eu and Ah Tai on this issue. We are left in doubt as to whether, had he done so, he would have been satisfied with that degree of certainty which the law requires to found a conviction that it was established that the call by Mr. Eu was made before 4.15 p.m.

42. Unless the judge was so satisfied, it follows that the defendant has not been shown to have organised the presence of the three men at the Kwong On garage. If he had no such opportunity, they were not his instrument and he could not properly be said to have aided and abetted an assault by persons who were not shown to have had any relationship with him, other than presence at the same incidents.

43. This would, by itself, be enough to justify the quashing of the conviction on this charge but we think that we should refer briefly to another aspect of the evidence which assumed considerable importance at the trial and during the appeal, the evidence of Mr. Tisdall, a solicitor.

Evidence of Mr. Tisdall

44. His testimony emerged in an unusual way. Towards the end of the cross-examination of Mrs. Eu, she described how she and Mr. Tisdall, whom she had retained as her solicitor in the matter, met the defendant for lunch at the Hong Kong Club on 1st October, when there was a discussion between the three of them about the assault. It appears that this meeting had not been known to the prosecution before Mrs. Eu referred to it in evidence.

45. The following day, Mr. Tisdall was called "blind" by the Crown, in the sense that no statement had been taken from him before he was asked to give evidence. During the appeal, counsel for Mr. Yuen complained that this was a course which had placed the defence at a disadvantage, since they had no written statement from which they could question Mr. Tisdall.

46. We see little substance in this objection. It is, no doubt, unusual for the Crown to call a potentially important witness without knowing what he is going to say; it is not a course which accords with the usual principles of good advocacy. But the defence was not without remedy. They could have asked for a statement and for an adjournment until it was provided and they had had a chance to study it. But they did not do so.

47. In the circumstances, it would have been somewhat pointless to have done so. A statement given on that day by Mr. Tisdall would hardly have differed in any substance from the evidence he would have given a day or two later. In any event, no objection was taken at the time, and we see no reason to find, at this stage, that there was a material irregularity.

48. What was important, however, was the weight to be attached to Mr. Tisdall's evidence. Mr. Lucas, who conducted the appeal for the Crown with much skill, submitted that his evidence was enough, by itself, to justify a conviction of the defendant on the first charge, if we were not satisfied that the evidence of the Eus, Ah Tai and Ah Ming was sufficient to establish that the defendant was guilty of the first charge.

49. Mr. Tisdall's evidence contained two pieces of evidence damaging to the defendant. The first was that the defendant had suggested to Mrs. Eu, in Mr. Tisdall's presence, that arrangements should be made to get him a back dated retainer in the matter, so that he could not be required to appear as a witness.

50. This was a grossly unprofessional suggestion, which Mr. Tisdall rightly rejected forcefully. But it has no probative value in relation to the first charge. It discloses Yuen's wish to keep away from the case; it does not establish his motive.

51. The second was Mr. Tisdall's recollection of an admission by the defendant, when asked by Mr. Tisdall as to how he was able to contact the hit men, that "he had been given the contact telephone number" - and that "he kept it on a pad on his desk". This, if accepted, is a damaging admission and supports strongly the allegation that it was the defendant who had got in touch with the three men on the afternoon of the attack.

52. Mr. Tisdall gave his evidence very fairly. He agreed that the conversation took place six months before and that he had made no note of it. He said that he would be reluctant to say which details of the incidents of 26th September he was told at the lunch and which he was told by Mrs. Eu on other occasions.

53. When cross-examined about the references to "hit men", he repeats his doubt as to what he learnt on that occasion and what Mrs. Eu told him on others, though at a later stage in his evidence, he says that that part of the conversation was firmly etched on his mind.

54. The judge, after discussing the evidence at some length, concludes that Mr. Tisdall's evidence if accepted, corroborated the evidence of the Eu's that it was the accused who secured the services of Ah Lung. He does not reach a specific finding that he accepts that evidence, but it must be inferred that he did.

55. We cannot but feel doubts as to the weight to be attached to it. Not because Mr. Tisdall was lying or exaggerating. But because on his own testimony, he found it difficult to disentangle what Mrs. Eu told him from the defendant's admissions. Although he is clear that he was told about the hit men and the pad by the phone, was he sure who told him? Could it have been Mrs. Eu?

56. It is not without significance, and this is not a matter canvassed by the judge, that Mrs. Eu said in evidence that the defendant suggested that he be given a back dated retainer, in the presence of Mr. Tisdall. She says nothing about the hit men and the note pad as having been mentioned on that occasion. This is perhaps some evidence that Mr. Tisdall learnt of it from her at some other time.

57. These factors lead us to the conclusion that it would be unsafe to attach weight to the admissions said to have been made to Mr. Tisdall. Even if they were fully established, however, they would not have been sufficient, by themselves to sustain a conviction on charge 1. They would only have given support to evidence which, as we have found above, was not sufficient to justify a conviction.

58. It is not, in consequence, necessary to deal with the arguments as to the effect of privilege and the admissibility of evidence to which privilege may have attached. Suffice it to say that the authorities appear to suggest that privileged information may be given in evidence if the client so agrees, as Mrs. Eu appears to have done; indeed counsel for the defence accepted that she had effectively waived her privilege. And further, even if privilege has not been waived, that the evidence is admissible.

59. We conclude, therefore, that it was not sufficiently established that the defendant organized the three men. The defence need not show that someone else did. We do not find that anyone else did. We are merely not satisfied that the evidence proved that it was the defendant.

Charges 2, 3, 4 and 6

60. We must next consider whether the convictions on these charges must necessarily fall, once we have decided that the conviction on charge 1 cannot stand.

61. It was suggested that the defendant could still be guilty of these other charges, on the basis that, even if we were not satisfied that he had arranged for Ah Lung and his fellows to go to the garage, the evidence nevertheless shows that he incited the others to give false statements to the police. He might have done this, the argument would run, because, even if he were not shown to have procured the bullies, he still had other motives to suppress the incident, even if these were not as strong as they would have been if Ah Lung had been proved to be his henchman. As a professional man, Mr. Yuen would hardly want his conduct, unwise at least, to attract publicity. As a friend of the Eus, he might want to help them avoid the unpleasant publicity which a prosecution would bring.

62. A finding of guilt on these charges, however, requires more than a falling in by Mr. Yuen with a scheme to suppress evidence. That might make him a member of a conspiracy to pervert the course of justice. It would not make him an inciter and he was charged with incitement, not conspiracy.

63. If charge 1 goes, however, this must necessarily affect the weight of the evidence given by the other witnesses as to the extent of Mr. Yuen's involvement and his intent. Although, when reaching a finding on charge 1, it was not necessary for us to decide that anyone else was the procurer of Ah Lung, the doubt which remains in our minds on that charge as to who was responsible must necessarily pervade our approach to the incitement charges. If we are not satisfied of the Crown case on charge 1, we cannot avoid doubt in relation to these four charges, since the same principal Crown witnesses are involved.

Charge 5

64. As has been indicated above, this charge alleges that Mr. Yuen made a false statement to the police on 26th September, 1979.

65. His statement, which is written by Inspector Pierce and signed by Mr. Yuen, appears at p.536 of the record. It was admitted by the defence that the statement is false in that -

(a) it asserts that the defendant was picked up at St. George's Building by Mr. Eu in his car on the evening of 26th September.

(b) it asserts that the defendant did not see anyone else in the Rover, on the way to the garage, except Mr. Eu.

(c) it suppresses all mention of the assault at the C.G.O. car park on that evening.

(d) it omits any reference to the three men who carried out the assault.

66. It was not disputed by the defence that the making of a false statement by a potential witness, who knows that criminal proceedings are in contemplation, amounts to the offence of attempting to pervert the course of public justice.

67. The most quoted definition of the scope of the offence is that of Baron Pollock in R. v. Vreones⁽¹⁾

"The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice."

68. In that case, it was held that an indictment properly lay when evidence was manufactured by the accused for the purpose of misleading a judicial tribunal, even if the evidence was never used. It is an obvious, corollary to this that it would amount to an attempt to pervert the course of public justice to conceal evidence of a crime which has been committed.

69. The defence to this charge was that, although the statement of the defendant was false, and false in important respects, and although it would have had the tendency to pervert the course of public justice, it was not so intended by the defendant because he did not believe that the police intended to take any further action against those who had carried out the assault on Ah Ming.

70. If, it was argued, Mr. Yuen believed that there was a genuine possibility of a prosecution, the offence would be established. But if he did not so believe, at the time when he made his statement, he would not have had the requisite intent to mislead. How could he intend to pervert justice, it was submitted, if he thought that the case was or would be closed and that he was only being asked to make a statement for the record?

71. This argument was based on the possibility that Mr. Yuen believed, or may have believed, that the police intended to "cover up", that is to say to bury Ah Ming's complaint, because of the prominent people involved.

72. A tape was produced of a conversation between Mr. Yuen and Inspector King, which took place on the morning of 28th September, shortly before the statement which is in issue. There were two transcripts of this tape, which were said to have varied as to the context in which the phrase "cover up" was used. The judge finds that the disputed passage meant that Inspector King wanted the accused to make a statement in order to avoid any allegation by Ah Ming that he (the Inspector) was trying to do a cover up job. We see no ground for disagreeing with this finding of fact.

73. Reliance was also placed on evidence that Mrs. Eu had tried to get in touch with the Commissioner of Police and that this factor may have influenced Mr. Yuen into believing that the case was to be suppressed. Mr. Yuen gave no evidence and we have therefore to guess at his state of mind by inferences from the relevant Crown evidence.

74. At the most, Mrs. Eu's evidence shows that she tried unsuccessfully to speak to the Commissioner and that the defendant knew that she had failed to do so. Also on the evening of 27th, after she had given her statement to Inspector King, she told the defendant over the phone that Inspector King had told her that she though the police would want a statement from him.

75. During the taped conversation with Inspector King, the latter told him that he wanted a statement of facts, not a witness statement. It is said that this would have led Mr. Yuen to believe that no further action was to be taken.

76. No doubt the defendant hoped that, if he lied to the police, no further action would be taken. But it is difficult to accept that the defendant could have seriously believed that nothing more would be done by the police when (as the judge found as a fact) he had just been told that Inspector King was anxious to avoid any allegation of a cover up.

77. Furthermore Inspector Pierce, who recorded the statement, gave evidence that he told the defendant that he was investigating a case which occurred on 26th September 1979, reminded him of his conversation with Inspector King and asked him if he was "willing to make a statement re events that night". The inspector told Mr. Yuen, when the latter asked, that he could not accept a prepared written statement.

78. This is further evidence which in our view makes it wholly improbable that the defendant, when he made his statement a few minutes later, can have believed that the police had decided that no further action would be taken to bring Ah Ming's assailants to court.

79. We have not, in view of this conclusion had to consider whether the offence would still be established even if he did genuinely believe that there was to be a "cover up". We are inclined to think that he would still be guilty, since he would have been making a statement with intent to pervert the course of justice, even if others had acted in the same manner and may even have made his own action unnecessary.

80. There is overwhelming evidence that he made a false statement to the police, that if was false in material particulars, that when he made it the defendant knew that proceedings were being contemplated in relation to the attack, and that he intended, by lying, to prevent them taking place. His conviction on charge 5 must stand and his appeal is dismissed to that extent.

Sentence

81. An attempt to pervert the course of public justice, the offence of which Mr. Henry Yuen still remains convicted, must in all circumstance be a serious one. As the courts have said on many occasions, it is akin to perjury. It is essential that the integrity of witnesses and of public investigation into reported crimes should be maintained. If it is not, public confidence in the administration of justice must inevitably suffer.

82. The defendant is a barrister. Members of the legal profession are a vital part of the machinery of justice in the territory and it is of the utmost importance that those who have the duty to investigate offences, and the courts themselves, should be able to repose trust in them. Happily, it is a trust which is seldom betrayed, as I am afraid that it was on this occasion.

83. The more serious examples of this offence would, save in the most exceptional circumstances, attract substantial custodial sentences. For example, false accusations, which place an innocent man in danger, the fabrication of evidence or the bribery of witnesses to give false testimony. These are offences of such gravity that imprisonment is the only appropriate punishment.

84. In assessing the seriousness of this offence, it is proper to take, in favour of an accused, that reading of the evidence which is most favourable to him. It would, in view of our findings, be possible to say that he was not a leading actor in the unfortunate events which led to this conviction but that he was activated more by friendship and weakness than by a sustained criminal intent.

85. It could be said that, as a professional man, he did not want his conduct, which was, to put it at its lowest, very unwise, to become known publicly. It could be said that he was misguidedly attempting to help his friends. These factors argue that it was not a serious case of its kind, though it is an offence which can never be taken lightly.

86. There are mitigating factors of substantial weight.

87. First, the fact that other persons who were involved in these unpleasant events were given immunity.

88. Second, it is likely that his career as a member of the Bar is finished.

89. Third, he has been in custody for six months.

90. Fourth, a recent medical report shows a serious deterioration in both his mental and physical condition during the period of his custody.

91. We have come to the conclusion that the proper sentence to be imposed on the remaining charge is one of nine months' imprisonment, suspended for a period of one year.

92. The order for costs will remain.

Representation:

Hidden, Q.C. & A.M. Niamatullah (Ho & Wong) for appellant

Lucas for Crown

(1) [1891] 1 K.B. 360 @ 369.