Tsang Ping-nam v. The Queen
Read the full judgment text of CACC 470/1979 on BabelCite. This Court of Appeal judgment was delivered on 2 October 1979.
1. TSANG Ping-nam, who was at all relevant dates a serving sergeant in the Royal Hong Kong Police Force, was convicted in the District Court on three counts of attempting to pervert the course of public justice, contrary to Common Law.
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CACC000470/1979
Coram: Roberts, C.J., McMullin, J.A. &, Leonard, J. Date of Judgment: 2 October 1979 ----------------- JUDGMENT ----------------- Introduction: 1. TSANG Ping-nam, who was at all relevant dates a serving sergeant in the Royal Hong Kong Police Force, was convicted in the District Court on three counts of attempting to pervert the course of public justice, contrary to Common Law. 2. The particulars of offence of the first charge were as follows:
3. The particulars of the other charges were identical, save that the second charge related to the prosecution of Chief Inspector WONG Kam-tai and the third charge to the prosecution of Sergeant WONG Yu-keung. 4. The appellant was convicted of all three charges and sentenced to two years' imprisonment on each, the sentences to run concurrently. 5. The corruption conspiracy referred to in the charges was the subject of a long trial in 1978, which we will refer to as the "Mongkok trial", in which the appellant was an important Crown witness. Facts: 6. On the 1st February 1977, the appellant was arrested by officers of the Independent Commission Against Corruption (ICAC) for suspected complicity in a corruption syndicate, which was said to have operated in the Mongkok Division of the Royal Hong Kong Police Force between 1972 and 1975. 7. During the afternoon of that day, the appellant was asked a number of questions, but made no admission of any involvement in corruption in the Mongkok Division or of any knowledge of it. 8. Later that same day, however, he was again interviewed by the same two ICAC officers and made his first statement, in which he admitted that he had received substantial sums of corrupt money, during his service as a Police Sergeant in the Mongkok Division, from Sergeant SO Siu-kuen, who was also known as "Tai Tau So", the subject of the first charge. 9. He received these sums regularly every week from Sergeant So and believed that the money came from "sex joints", gambling stalls, "tsz far" stalls and opium stalls. Either Sergeant So, or Inspector LO Wing-pong, would notify the Vice Squad as to which places should be raided and which, having paid their bribes to the police, should be left alone. 10. He added that, in mid-1973, Inspector LO Wing-pong was succeeded, as the Chief Inspector who was responsible for internal administration in the Mongkok Division, by Inspector WONG Kam-tai, the subject of the second charge. 11. On the following day, 2nd February, 1977, the appellant made a second statement in which he amplified the version of events which he had given in his first statement. Apart from repeating his assertion that money had been collected in the name of Inspector Wong, this statement did not implicate further any of the officers named in the three charges. 12. On the 4th February, the appellant made a third statement, in which he described how the Mongkok uniform branch accounts were controlled by Inspector Lo, who was assisted by various other police officers, among them Sergeant WONG Yu-keung, the Barrack Sergeant, the subject of the third charge. About $10,000 a week was collected from hawkers in the district, through a police officer and two other men who were not members of the Force. Of this sum, Sergeant Wong received $500 a week. When Inspector WONG Kam-tai took over from Inspector Lo in 1973, it was agreed that the appellant should pay Inspector Wong $3,000 twice a month. 13. On the 23rd February, 1977, the same two ICAC officers interviewed the appellant. One of them, Mr. Picken, invited him to make a full witness statement which, provided that the appellant told the whole truth, would not be used against him in any prosecution for corruption. To this the appellant agreed. 14. Mr. Picken later gave evidence, in the Mongkok trial, that in February 1977 it had not been decided who would be prosecuted, though he said that he had it in mind that the appellant might be called as a witness and that the invitation to make a witness statement was made to the appellant on the advice of a member of the Attorney General's Chambers. It was made clear to the defendant that he might nevertheless still be prosecuted. Only later, at some time between the 20th June and 10th October, 1977, was the appellant told that he was going to be called as a prosecution witness. 15. On the 15th April, 1977, at ICAC Headquarters, a witness statement was composed by Mr. Wong (an ICAC officer) from the appellant's previous statements and from additional information which the appellant had provided at various other meetings. 16. When the witness statement was complete, Mr. Wong read it to the appellant, who signed it. Some additions to it were made on the 20th June, 1977, when Mr. Wong asked the appellant further questions. These additions were also read to, and agreed and signed by, the appellant. 17. On the 16th June, 1978, in the Hilton Hotel, where the appellant was being kept in protective custody, another ICAC officer, Mr. LI Chuen-kwok, asked him if he wished to read his statement; Mr. Li handed him a copy of it, which the appellant read. When he finished, he said "Okay". Mr. Li asked him "Do you still agree the contents are true and accurate?" The appellant replied "yes. I can still remember everything very clear. It's all true." 18. Later that day, Mr. Li handed the appellant a letter of indemnity signed on behalf of the Attorney General. This was dated the 14th April, 1978 and undertook that, on condition that the appellant gave full and true evidence in the proceeding of Reg. v. Edwards & Others for offences of conspiracy relating to the corrupt activities of police and ex-police officers of the Royal Hong Kong Police Force, no prosecution would be instituted against him in respect of any offence involving corruption disclosed by him in the course of his testimony in the said proceedings. 19. The Mongkok trial began on the 17th April, 1978. The appellant was called as a witness by the prosecution on the 19th and 20th June, 1978. 20. In the course of his evidence, the appellant frankly admitted his own part in the Mongkok corruption syndicate. He confirmed those parts of his witness statement which implicated in corruption Inspector LO Wing-pong and various other police officers who were not defendants in the Mongkok trial. But he denied there was any truth in those parts of his statement which implicated Sergeant So, Inspector WONG Kam-tai or Sergeant WONG Yu-keung, (who were defendants in the trial) or any of the other defendants, or any other members of the Police Force who were not defendants. 21. He alleged that the allegations in his statement against these persons had been fabricated by ICAC, that he knew the allegations against them were false, and that he agreed to sign the witness statement, which included these allegations, in order to secure a letter of indemnity from prosecution and out of fear that he would otherwise himself be charged with corruption. 22. On the application of the Crown, he was declared a hostile witness and subjected to cross-examination by Mr. Ogden on his witness statement. He admitted that he had led the ICAC officers to believe that he was going to give evidence in court along the lines of his witness statement, and that he knew that this statement would be a factor which would be taken into account by the Attorney General when deciding who should be prosecuted. At the time he signed the witness statement, on the 15th April, he was prepared to stick to his story and to repeat the falsities in court, but he changed his mind on the 20th June, 1978. 23. There can be no doubt, (and this was not contested by counsel for the appellant) that the statement and the evidence of the appellant are irreconcilable in many major respects and that both cannot be true; one, or the other, or both, must be untrue. The Crown's Case: 24. The prosecution of the appellant was conducted throughout on the basis that the Crown was unable to prove either that his evidence at the Mongkok trial was untrue or that his witness statement was untrue. 25. The Crown's case was that, whichever was untrue, the appellant must be guilty of the offence of attempting to pervert the course of public justice on one of two alternative grounds (which we will call the "conflicting stories" and the "change of mind", though these were not phrases which were used in argument). 26. The Crown alleged, in essence, that there was no explanation of the appellant's conduct which was reasonably consistent with his innocence of the offence charged. 27. "Conflicting stories". The Crown's argument on this basis, is that the appellant had either falsely accused innocent persons of corruption and agreed to testify to that effect, or lied when giving evidence during the Mongkok trial, thereby preventing the court from coming to a true and just verdict at that trial. 28. "Change of mind". The Crown's contention on this basis is that the appellant embarked on a course of conduct whereby, in order to avoid his own prosecution, he implicated a number of persons in criminal offences by his witness statement, leading the Crown to believe that he was telling the truth and would give evidence in court about their criminal activities. At a later stage, before he gave evidence in the Mongkok trial, he changed his mind and decided to testify that the allegations in his statement were lies and had been fabricated by ICAC. Time of offence: 29. The particulars of the charges allege that the offences were committed between 31st January 1977 and 21st June 1978. Although it was not argued before us in this appeal that the particulars were incorrect in this respect, we feel that we should deal with the question, for future guidance, on the assumption that the Crown's submissions, as set out above, are correct. 30. Conflicting stories. If both the witness statement and the evidence were false, the Crown says that the offence would have been committed at the time when the first false statement was given. If the statement was true, but the evidence at the Mongkok trial was false, the offence would have been committed when the appellant retracted his statement in evidence at the Mongkok trial. 31. If the statement was false, but the evidence given at the Mongkok trial was true, the offence would have been committed when the first false statement was given to ICAC. 32. Change of mind. The time of completion of the offence would be different if the Crown relied on the appellant's change of mind as constituting the offence. In this event, it would have been committed when he changed his mind, which must have occurred between the time when he gave his first false statement and the time when he gave evidence. 33. The appellant testifies that he had intended, when giving the statements, to repeat them in court; it was only at a much later stage, after he had received his indemnity, that he made up his mind not to repeat the statements in court but to "tell the truth when called as a witness". On this basis, the offence would have been committed when he decided not to repeat his witness statement in evidence. 34. Thus, all hypotheses lead to the conclusion that the offence, if there was one, must have been committed between the first statement on 1st February, 1977, and the moment when he retracted his statements in evidence during the Mongkok trial on 20th June, 1978. The particulars of the charges so assert, and were thus properly laid. Defence 35. The appellant's case was to the effect that the evidence which he gave at the Mongkok trial was true and that his statements were untrue. And that he signed them out of fear that he would be prosecuted if he did not and in order to secure his own indemnity. 36. Counsel for the appellant argued that-
37. To establish a charge under section 13B, the Crown would have had to prove that the statements given to ICAC were false. Although this would have involved calling those three police officers who were the subject of the charges, it was submitted that, however unlikely it might be that they would be prepared to give evidence of the falsity of the appellant's statements against someone who had protected them at the Mongkok trial, the possibility was open to the Crown. 38. Crown Counsel Mr. Reid, replied that-
39. Alternatively, Mr. Ching said, the appellant could have been charged with perjury, in respect of his evidence at the Mongkok trial. He conceded, however, that in fact the Crown would have been unable to substantiate a charge of perjury. This could only have been proved if the officers named in the statements were prepared to testify to the effect that they were corrupt, as the statements alleged, and that consequently the evidence given by the appellant at the Mongkok trial must have been perjured. 40. What the Crown sought to do, he objected, was to charge an offence without being able to prove a particular set of facts which would justify a conviction. Instead, the Crown hoped to establish that the appellant had been guilty of one of two alternative acts, either of which might have justified the conviction, but without being able to establish which and without warning the appellant as to the precise grounds upon which the Crown was relying. The offence of attempting to pervert the course of of public justice. 41. This offence appears to have had its origins in the early development of the law of conspiracy. Accordingly, it was at one time the general practice to prosecute conduct which tended to pervert the course of public justice as a conspiracy. 42. Nevertheless, there is no doubt that at common law a wrongful obstruction of the course of justice is an offence by itself notwithstanding the absence of any element of conspiracy. In Rowell(1), Lord Justice Ormrod, delivering the judgment of the Court of Appeal, said:-
Lord Justice Ormrod was referring to R. v. Vreones(2). In the latter case, at page 369, Baron Pollock said:-
43. In Vreones(2), the defendant, having been instructed to take samples of a consignment of wheat, which it was thought was likely to be the subject of arbitration between the buyers and the sellers, took samples and placed them in sealed bags, but later deliberately substituted other wheat for the wheat from the consignment and placed it in the sealed bags, intending to deceive the arbitrators. No arbitration in fact took place, but, nonetheless, he was held guilty of attempting to pervert the course of public justice. 44. In Rowell(1), the defendant made a detailed statement to the police, in which he alleged that T had demanded one pound from him at gun point when they were sitting in a bus. As a result T was arrested and remanded in custody. A few days later the defendant, after further questioning, retracted his statement, and T was released. 45. The following day, the defendant asked a friend of his to search the buses, where the latter found a toy pistol. Later the defendant admitted to the police that he had placed the pistol in the bus to lend credence to his original statement. He was convicted of attempting to pervert the course of public justice, by making a false allegation that he had been robbed and threatened with a firearm by T. 46. On appeal, it was held that the indictment disclosed an offence known to the law and distinct from the statutory offence of causing wasteful employment of police created by section 5(2) of the Criminal Law Act 1967 (which is in the same terms as section 13B of the I.C.A.C. Ordinance) in that the defendant had not only wasted police time but exposed another person to the risk of arrest. 47. The indictment in Rowell(1) alleged that the defendant had attempted to pervert the course of public justice "by falsely alleging that he had been robbed and threatened with a firearm by Edward Fontaine Timms." 48. It is clear, therefore, that the appellant would be guilty of attempting to pervert the course of public justice if it could be proved that the statements which he had made to the ICAC officers contained false allegations against the officers who were the subject of the three charges on which he was convicted. 49. Although we have not been referred to any authority to the effect that the giving of false evidence, or perjury, amounts to an attempt to pervert the course of justice, we see no reason why this should not be so, since the giving of false evidence is undoubtedly an act which has a tendency, and is intended, to pervert the administration of public justice (see Vreones(2)). Indeed, Vreones(2) establishes that it is an indictable offence to fabricate evidence with intent to mislead a judicial tribunal, even if that evidence is never used. A fortiori, the giving of such evidence must surely amount to the same offence. It is worth noting that the authors of Smith and Hogan (4th Ed. page 254) express the opinion that to persuade a witness to tell lies is both an attempt to pervert the course of justice and an offence of subornation of perjury. 50. Thus it may be concluded that the offence charged could be committed either by the false statements to the ICAC officer or by perjury at the Mongkok trial, though as the Crown has always admitted, it could merely show that either the statements, or his evidence, or conceivably both, must have been false. Basis of conviction 51. The judge found that there was no explanation of the accused's conduct which was consistent with his innocence of the charge and that he could convict, whether the statements or the evidence or both were untrue, because he was satisfied beyond reasonable doubt that one or the other was false. 52. It might perhaps not have been necessary for the judge to convict the appellant by this route. He could have relied upon the appellant's own admissions in evidence at his trial that his statements were false, even though he rejected his evidence that pressure was put upon him to secure them. But he did not, so that we have been obliged to consider whether it was open to the Crown, in this instance, to base its case on the irreconcilable nature of the statements and the sworn evidence, rather than on the proved falsity of either or both. Change of mind theory rejected. 53. It was submitted by the Crown that the offence could also have been committed at the moment when the appellant, having given statements to ICAC officers, decided in his own mind that he would not give evidence at the Mongkok trial which was consistent with the statements. 54. Mr. Ching, on behalf of the appellant, warned that the acceptance of such a proposition would mean that any person who gave a statement to the police would be liable to prosecution if at a later stage he did not come up to proof, or even if he refused to give evidence. This, he urged, would have wide reaching ramifications and would create a new offence, the essence of which would be a mere refusal, or failure, to give evidence in accordance with a previous statement to a police or ICAC officer. 55. At present, a person who gives false information to an ICAC or police officer can be proceeded against under section 13B of the Independent Commission Against Corruption Ordinance (Cap. 204) or under section 64 of the Police Force Ordinance (Cap. 232); but it is necessary in either case to prove that the particular statements concerned were false. 56. We are asked to find (if the change of mind theory is adopted) that where a person gives a statement to the police, it should be an offence of attempting to pervert the course of public justice if (a) he subsequently gives evidence which is contrary to it; or (b) he refuses to give evidence; or (c) he decides, before he gives evidence, not to do so in accordance with the statement. 57. In our view, a mere refusal to give evidence is not of itself capable of amounting to "the doing of an act or a series of acts which has a tendency and is intended to pervert the course of justice" (Rowell(1) at p.138). Further, the mere formulation of an intention not to give evidence in accordance with a statement cannot amount to the offence. There must be an overt act, which will usually be, as in this case, the contradiction on oath of his statement. 58. So we do not consider that the offence can be given such wide frontiers, and believe that the offence should not be extended beyond the limits envisaged by (a) above. Conclusion 59. We are unaware of any authority which entitles a court to convict of the offence of attempting to obstruct the course of public justice, without the Crown being able to establish the precise basis for the conviction, but only a choice of alternatives each of which is reconcilable only with guilt. 60. But we do not see the proposition as being, in essence, in any way novel. To take the offence of murder as an analogy. If the Crown were able to establish that the accused had both shot and stabbed his victim and that either wound would, by itself, have caused death, but was unable to prove which had done so, could it be doubted that the assailant would be properly convicted of murder? 61. We do not, therefore, consider that we are being asked to create a new offence. At the most we are identifying another way in which an old one can be proved. 62. It is urged upon us that to do so would cause unfairness to an accused, who would not know, because the particulars do not contain them, the details of the facts on which the Crown relies. But particulars, of themselves, tell little. For example, an indictment for murder will say only that X murdered Y on a certain date. It will not say how the Crown alleges the offence was committed any more than the particulars of these charges did. 63. If it were thought necessary (and we express no view on the matter) for further particulars to be given of the statement and evidence on which the Crown relies in a prosecution of this nature, these could surely be given without difficulty in sufficient detail to enable the accused to know what is alleged against him. In any event, the presence or absence of particulars is a matter of importance only in so far as it may mislead or prejudice the accused. 64. In this case, any injustice which might have been caused to the appellant (and there can surely have been none, since it would be fanciful to imagine that he did not know, after his cross-examination at the Mongkok trial and in view of his long service as a police officer, exactly what the Crown's case must be) was cured by the outline of the prosecution case which was supplied to his legal advisers before the trial began. Indeed, such a document is of far more value to an accused, as an indication of the case which he has to meet, than the attenuated particulars which appear in a charge. 65. Our conclusion, therefore, is that an accused may be properly convicted of the offence of attempting to pervert the course of public justice if the Crown establishes-
66. We confess that we have not reached this conclusion without some degree of intellectural discomfort. But we have not allowed this to divert us from the inescapable conclusion that the appellant. On any possible interpretation of the evidence, attempted and intended to pervert the course of public justice. 67. Accordingly, the appeal against conviction is dismissed. Representation: C. Ching, Q.C. & Y.C. Mok (W.K. Lore & Co.) for Appellant C.W. Reid for the Crown/Respondent (1) (1978) 1 W.L.R. 132. (2) (1891) 1 Q.B. 360. |