R. v. Wong Kwai Nam

CACC000449/1996

IN THE COURT OF APPEAL

1996, Nos. 376, 448 & 449
(Criminal)

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Coram: Hon. Power, Ag. C.J., Mortimer and Mayo, JJ.A.

Date of hearing: 13 June 1997

Date of judgment: 13 June 1997

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant, after a trial which occupied 21 days before Judge Pang in the District Court, was on 29th April 1996 found guilty of eight counts of sending prohibited articles by post, three counts of criminal intimidation and one count of attempted intimidation. On 10th June 1996 he was sentenced to two months on each of the four of the postal offences and to 3 1/2 years concurrent on each of the linked criminal intimidation offences. He was sentenced to two months on each of the other three postal offences. These sentences were made concurrent but were ordered to be consecutive to the 3 1/2 years imposed on the other offences making a total sentence of three years and eight months.

2. On 1st August 1996, the applicant pleaded guilty before Judge H.C. Wong in the District Court to two counts of sending prohibited articles by post and to one count of criminal intimidation. He was sentenced to two months on each of the sending prohibited articles charges which were ordered concurrent with each other but consecutive to the sentences passed by Judge Pang. He was sentenced to two years on the criminal intimidation charge, one year of which was ordered to be concurrent with the sentences imposed by Judge Pang. Overall he received a sentence of four years and ten months.

3. We cannot describe the offences dealt with by Judge Pang better than by using the words of the judge:

"The offences were committed between January to October 1995. Over a period of 10 months, a number of top-ranking civil servants and prominent members of the business community received various offensive materials through the post, some of which were obviously intending to cause alarm to the recipients.

Subsequent to months of intensive investigation conducted by the police, the origins of the letters were traced to you. What emerged from the investigation was that your elder brother, WONG Kwai-fun, has been prosecuted, tried and convicted of a series of offences for which he is now serving a substantial prison term. All those who were connected with the chain of legal process became victims of your calculated criminal activities.

The recipients of the offensive materials include the Attorney General, who was, of course, the head of the government department responsible for prosecuting your brother. Then there is Michael Wong J, the judge who tried and sentenced your elder brother. Miss Wong Wing-yue is the daughter of Mr. Justice Wong. Mr. Kevin Egan, the barrister who conducted the prosecution in court, was also made the subject of libellous remarks. The commissioner of the Correctional Services and his wife, a number of prison officers serving at Siu Lam, where your brother was detained, was also made the target of libellous attacks. Miss Chen Wai-wai, the lady in charge of Nam Fung Development, the company which was trying to enforce the terms of the mortgage agreement in respect of the business premises which your brother has operated, has also not failed to escape your attention.

In committing the series of offences in the manner as you did, you have displayed a blatant disregard of the rule of law. You took upon yourself to avenge what you mistakenly think as your brother's predicament. You have directed the malicious attacks at those persons occupying the highest post in a government echelon, with the hope of threatening them into submitting to your demands of extending liberties for your elder brother for which he was not entitled.

These offences are not isolated offences committed out of momentary impulse or out of a sense of misguided loyalty as suggested by your counsel. They were well planned and meticulously executed. The contents of the letters were calculated to attack, threatened and undermine the reputation of the recipients and that of the institutions they represent."

4. The judge rightly regarded the offences as very serious ones. He went on:

"I must stress, however, judicial officers, civil servants and members of the legal profession, regardless of rank or position, must not be subjected to any form of threat, harassment or intimidation when they perform their duties. Likewise, law-abiding business people, regardless of the size of their operations, must be protected from illegal influences when making commercial decisions.

I am unable to find any mitigating factors in your case. You have systematically taken upon yourself to undermine the very fabrics of a successful society and for this I consider the offences to be very serious indeed."

On its face the overall sentence of three years and eight months imposed by Judge Pang was a properly calculated one.

5. The two offences of sending prohibited articles which were dealt with by Judge H.C. Wong both involved insulting letters which were written by staff members of the applicant's company at his instigation and sent to Mr. Kevin Egan who had prosecuted the applicant's brother. He was sentenced to two months on each of those charges. The criminal intimidation charge involved a threatening letter meant for the Chief Secretary of Hong Kong, Mrs. Anson Chan, but delivered to her cousin Dr. Anne Fang. A sinister aspect of that offence was that the letter was sent four days after Dr. Fang had been the victim of an assault carried out by an employee of the applicant. It must be said that the Crown did not proceed against the applicant on that charge and so he cannot be taken to have been involved in that offence however the letter followed shortly after it and made reference to it. The letter says:

"It is said that 'We should remember for a thousand years any favour done by others.' I, together with several fraternal 'brothers' who went through fire and water with me in Vietnam, have sworn to fight for the justice for the Wong family. The incident in connection with your younger sister Fong Hang-sang is only a slight punishment. If you still obstinately stick to a wrong course, you will just harm yourself and others. If you still hold an umbrella to protect the power abusers again and again, I shall have no alternative but to turn to my last and most power resort.

You receive your pay on the 29th day of each month. You have to think carefully if it is worthy of taking the risk together with your family. In fact, these games are not for such high-ranking officials and noble persons like you. You yourself are the one who can settle this. What you have to do is just saying one sentence, i.e. 'reopening the investigation into all cases in connection with the Wongs and pardoning the person(s) being unjustly imprisoned immediately'. The problem can be so settled. As the unjust cases involving the Wong family were caused by some black sheep in the police and prosecution sectors, you have no excuse to evade the responsibility of handling this. It is beneficial to both you and others, and so you should be happy to do so. It is up to you to decide on having a friend or an enemy. Think of it carefully!

Sd. A Vietnamese Warrior"

6. That was the offence for which the applicant received imprisonment for two years with one year concurrent and one consecutive to the other sentences.

7. Mr. Buchanan, who appears for the applicant, submits that the sentences of 3 1/2 years imposed by Judge Pang were excessive. It is suggested that there was a failure to give sufficient weight to the motive of the applicant and to bear in mind that there was no element of triad menace involved. It is suggested also that there was too much emphasis placed upon the personalities involved. The motive of the applicant was, it is submitted, to try to assist his brother who he firmly believed had been wrongly imprisoned.

8. It is further submitted that not enough weight was given to the essentially good character of the applicant as shown in the probation report.

9. We bear in mind all that Mr. Buchanan has said. These offences, however, are ones of considerable gravity. They strike at the fabric of the administration of justice and of orderly government. An appeal is the only recourse after conviction. Attempts to side-step due process by endeavouring to intimidate those involved in the administration of the law are gravely serious offences. We see no failure to take into account any relevant matters by either of the two judges. The attacks were, for the most part, directed at persons involved in one way or another in the administration of justice. The letters were not frivolous or such as might be easily dismissed. There was a serious intention to intimidate. In our view, the 3 years and 8 months imposed in relation to the first set of offence was entirely appropriate. Judge Wong rightly took into account the sentence by judge Pang but bore in mind also the gravity of the offences with which she was dealing. She was mindful also that pleas of guilty had been entered thereto. She, rightly in our view, made part of the sentences which she was imposing consecutive to the sentences imposed earlier. It is correct that these were severe sentences but they were imposed in relation to very bad offences. We are satisfied that they were neither wrong in principal or too severe and the application must, therefore, refused.

Representation:

Mr. Peter Nguyen, Q.C., Y.M. Liu & Arthur Luk (Crown Prosecutor) for the Respondent.

Mr. Buchanan assigned by D.L.A. for the Applicant.