HKSAR v. Wong Shing Yim Peter and Others

CACC000510/2002

CACC510/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 510 OF 2002

(ON APPEAL FROM DCCC NO. 812 OF 2001)

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Coram: Hon Ma CJHC, Stuart-Moore VP & Beeson J in Court

Date of Hearing: 2 October 2003

Date of Judgment: 10 November 2003

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

Introduction

1.On 30 August 2002, 19 defendants who were at the material period with which we are concerned, employees of the Urban Services Department (USD) (now the Food and Environmental Hygiene Department) were convicted after trial in the District Court before Deputy Judge Mackintosh. Suspended prison sentences ranging between 3 and 9 months were passed on 12 September 2002.

2.All 19 defendants sought leave to appeal against conviction by Notices of Application dated 8 October 2002. Two of the applicants (the 14th and 15th defendants at the trial) have since abandoned their applications, leaving 17 applicants. We will hereinafter refer to these remaining applicants simply as the applicants.

3.The applicants were all part of a hawker control team, J Squad as it was called, that operated in Kwun Tong. The function of hawker control teams is to monitor the activities of hawkers, one of its tasks being to make arrests where, for example, there is illegal hawking (i.e. hawking without a licence) or where hawkers, whether licensed or not, cause an obstruction. J Squad operated in Kwun Tong at a place called Yan Oi Court.

4.The applicants were charged with conspiracy to pervert the course of public justice as follows :-

"

1st Charge
Statement of Offence

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.

"	Particulars of Offence

WONG Shing-yim, Peter, YUNG Hon-fui, TANG Wai-keung, TUNG Kwai-fuk, LAU Kwong-fai, LI Kwok-chuen, CHAN Wing-chi, CHAN Ho-kwong, YUEN Wan-ip, KAM Suk-fong, YEUNG How-hang, IP Hon-mo, CHEUNG Tim-lam, CHEUNG Wing-chong, LAU Shek-ping, CHOW Wing-cheong, CHAN Chi-shing, LEUNG Hing-kwan and LIU Chi-cheung, on divers days between the 1st day of May 1997 and the 31st day of March 1999, in Hong Kong, conspired together with NGAN Sze-keung, IP Wing-ki, CHEUNG Kam-mui and other persons unknown to pervert the course of public justice, namely by :-

(i)	participating in an arrangement in which a predetermined number of designated hawkers would be arrested each day at Yan Oi Court, Kwun Tong;
(ii)	participating in an arrangement in which itinerant licensed hawkers were being arrested in substitution for unlicensed hawkers;
(iii)	nominating an officer to be the 'arresting officer' when such officer was not; and
(iv)	completing records of items seized from arrested hawkers knowing the same to be inaccurate or being reckless as regards the accuracy thereof."

5.As an alternative, the applicants were also charged with conspiracy to commit misconduct in public office. As will presently become apparent, however, it is not necessary to deal with this offence in any detail, although it was submitted on behalf of the applicants that if their appeals succeeded, convictions on this alternative charge should be substituted. Deputy Judge Mackintosh found the applicants guilty of the first charge (of conspiracy to pervert the course of public justice) but delivered no verdict on the second charge even though he was of the view that were it necessary, he would have found this charge proved as well.

6.At the hearing of the applications for leave, Mr Gerard McCoy, SC and Mr Bernard Chung represented the applicants. Mr Kevin Zervos, SC and Mr Gary Lam represented the respondent. We reserved judgment.

7.Before identifying the issues in this application for leave to appeal, we first deal with the facts in greater detail.

The facts

8.We have already mentioned the fact that the applicants were all members of a hawker control team operating in Kwun Tong. The chain of authority and the applicants' position within the system can be described thus :-

(1)	Ultimate responsibility for hawker control teams was vested in the Urban Services Department Headquarters which were in Kowloon. There were various districts below this level. Kwun Tong was one such district.
(2)	Within each district, the controlling officer was known as the Chief Hawker Control Officer (CHCO), and below him the Principal Hawker Control Officer (PHCO). Then came the various hawker control team squads, of which J Squad was one.
(3)	Every squad comprised a Senior Hawker Control Officer (SHCO), 2 Hawker Control Officers (HCOs), 8 Assistant Hawker Control Officers (AHCOs) and 2 workmen.
(4)	The applicants were in J Squad at various times. The 1st applicant was the SHCO of J Squad until he was succeeded in February 1998 by the 11th applicant. The 2nd and 3rd applicants were HCOs until they were replaced by the 12th and 13th applicants (respectively in May and October 1998). The other applicants were AHCOs.

9.Hawking in Hong Kong is regulated by the Hawker Regulation made under section 83A of the Public Health and Municipal Services Ordinance, Cap.132. Under section 53 of the Regulation, any licensed hawker must not cause an obstruction to vehicle, traffic or pedestrians. The penalty for a breach of this section is a fine or imprisonment (section 56(2A)). Powers of arrest are given to HCOs (see section 84 of the principal Ordinance) as well as power of seizure of the goods and equipment of hawkers (section 86 of the Ordinance). As Mr McCoy emphasized, the power of seizure is discretionary, not mandatory.

10.Yan Oi Court, as described by the judge, is a relatively small area but is a very busy thoroughfare for pedestrians. It was therefore a particularly desirable area in which hawkers could operate. As one can imagine, the proliferation of hawkers at Yan Oi Court brought complaints from members of the public. In January 1997, the authorities sought to clear all hawkers from the Yan Oi Court area to create a hawker free zone. Such, however, was the power and influence of the hawkers, who made representations at both district and headquarter levels of the Urban Services Department, that this policy was reversed.

11.It is in this context that the charges of conspiracy to pervert the course of public justice laid against the applicants have to be seen. It will be recalled that the charge singled out four aspects. All were to do with the arrests carried out on hawkers at Yan Oi Court over the course of a period between May 1997 and March 1999. The prosecution's case can be summarized in the following way :-

(1)	Over this period, the applicants first predetermined the number of arrests that would be made each day in advance of any arrest operation and furthermore, that arrests would be carried out on designated hawkers (Particular (i) of the charge). This scheme was also communicated to representatives of the hawkers so that when an arrest operation was being carried out, arrestees would simply present themselves to be arrested and would "go quietly".
(2)	Another aspect of the prosecution's case was that the arrestees would only be licensed hawkers rather than unlicensed ones (Particular (ii)). The relevance of this distinction was, as we understand it, that in the case of licensed hawkers (in the case of Yan Oi Court, these were itinerant hawkers licence holders), they were more likely to secure the return of any seized goods whereas in the case of unlicensed hawkers, their seized goods would inevitably be confiscated.
(3)	As the arrests were pre-arranged, there was no real arrest as such. This, however, created a problem in that there had to be some formal record of the arrest. The document used for this purpose was a pro-forma document headed "Hawker Arrest Case Summary" (also known as USD Form 601). The prosecution's case was that an officer would be nominated randomly and his name written into these forms even though the named officer was not the officer who carried out the relevant arrest or who was not even in most, if not all, cases present at the time of such arrests (Particular (iii)). In other words, the relevant Form 601 documents that were used contained false particulars. We shall deal further below with the content of these forms.
(4)	Lastly, seizure forms (USD Form 602) supposedly containing a record of seized items following arrest, were completed by the applicants knowing that they were inaccurate or they were reckless as regards the accuracy thereof (Particular (iv)). The case advanced by the prosecution was that these forms did not record at all the goods that were seized, if any goods were seized in the first place.

12.Thus, concisely put, the prosecution's case was that what took place regarding the applicants and the hawkers at Yan Oi Court was a "charade".

13.In what Mr McCoy described as a paragon of clarity (with which we agree), the judge's Reasons for Verdict meticulously set out the facts and the respective cases run by the prosecution and the defence, as well as the assessment of the testimony of the various witnesses. We need refer only briefly to some of the more important findings of fact and conclusions :-

(1)	On Particular (i), the judge found that there was a predetermination by the applicants of the number of arrests of hawkers to be made each day. It was also found that, for their part, the hawkers themselves were operating a rota system whereby they would put forward a certain number of hawkers for arrest everyday. While accepting that this arrangement was separate from that of the applicants, the judge found that the respective arrangements were undoubtedly coordinated. Nevertheless, despite this coordination, the judge did not regard the applicants and the hawkers' arrangements being part of the same conspiracy. It was in any event not the prosecution's case that they were so and the charges made against the applicants were not put on this basis.
(2)	It was not clear on the evidence whether the arrested hawkers were actually causing an obstruction. Given that the prosecution did not allege that those hawkers who were arrested did not commit any offence, the judge resolved this issue in favour of the applicants and concluded that those hawkers who were arrested were responsible for stalls that did in fact cause an obstruction.
(3)	On Particular (ii), the judge was not satisfied that this had been made out by the prosecution.
(4)	In relation to the Form 601 issue, (that is, the false nomination of the arresting officer), it was found that when arrests were made, there were so few, if any, formalities involved that there was in reality no arresting officer. Reference was made to the testimony of a former member of J Squad (PW7 who gave evidence under immunity) to the effect that when the Hawker Control Team arrived at Yan Oi Court, the majority of the hawkers there would cover their stalls while those hawkers designated for arrest, would simply walk out either from the stalls or nearby sitting areas or gardens to be arrested. During the early stages of the period of time with which we are concerned, no formal words of arrest or caution were even uttered and the arrestees would simply offer themselves for arrest. At a later stage, it would appear that some words of caution were used. On occasion, representatives of the hawkers would tell those persons who were to be arrested, to hurry up. The whole scene must have been quite bizarre.
(5)	Form 601 was a printed form which required details of the relevant arrest to be inserted. Thus, details were required of the arresting officer, the hawker who was arrested and, under the heading "Charges and Facts of Case", of the first-hand observations of the arresting officer of the relevant offence committed by the hawker (whether there was involved an obstruction, as in many of the arrests in the present case, or any other offence). The Form also required details of the caution administered by the arresting officer to the arrested party. In the Schedules to the Admitted Facts signed by counsel on fiat and the applicants' counsel pursuant to section 65C of the Criminal Procedure Ordinance, reference is made to a very large number of arrests and corresponding Hawker Arrest Case Summaries. All these Summaries were signed by one of the defendants at the trial purportedly as the arresting officer and in many cases witnessed by another of the defendants.
(6)	It was found by the judge that the system of arrests was so informal (in our view in many cases non-existent) that no particular Hawker Control Officer could be said to be the arresting officer. This required for the purpose of filling out the Form 601 documents, the nomination of an arresting officer even though that officer in most cases had nothing to do with the relevant arrest. The judge referred to the evidence of officers "willing" to be nominated as the arresting officer and the nominations that were made for this purpose, whether or not the nominated officer actually had dealings with the relevant hawker, as "a matter of chance".
(7)	The judge said this in paragraph 100 of the Reasons for Verdict :-
	"It is however impossible to say that in each and every one of the hundreds of arrests, the nominated officer had not been with the hawker in question at Yan Oi Court. Nevertheless, it is plainly established that the practice was so to nominate and inevitably in a large number of cases, the nominee would have had nothing to do with the hawker earlier in Yan Oi Court."
	Clearly, the judge was satisfied that each of the applicants was a party to the practice of the irregular nomination of arresting officers in the Form 601 summaries. We shall return to this aspect when dealing with the position of the 18th and 19th applicants. The judge was clearly satisfied that Particular (iii) was made out by the prosecution.
(8)	As for the issue over the accuracy of the Form 602 seizure documents (Particular (iv)), the judge found that at the time of the relevant arrests, only samples of the relevant hawkers' goods were seized. The main trolleys or carts were not seized. In other words, seizure was selective and in many cases nominal. In paragraph 109 of the Reasons for Verdict, the judge said this :-
	"The USD 602 forms were inaccurate in every case. The figures were guessed and the goods had not, as stated, been seized. The function of the witnessing officer, contrary to what was put, was not just to witness the hawker's signature. It was to witness the accuracy of the list. If it were otherwise, the arresting officer could witness the signature and there would be no need for two officers to be involved. Since no goods had been seized, and the witnessing officer knew that, he was on every occasion signing what he knew to be a document containing false information."

14.On the facts established to the satisfaction of the judge (which are not challenged in this appeal by the applicants), was a case of conspiracy to pervert the course of public justice made out? Mr McCoy argues not.

The issues in this appeal

15.In the Perfected Grounds of Appeal, seven grounds of appeal are set out. An additional ground was advanced by Mr McCoy at the hearing. As a matter of form, leave ought to have been sought for this additional ground to be raised, but as Mr Zervos has addressed this ground in his submissions without objection, we will do the same.

16. The various grounds of appeal as argued by Mr McCoy can be distilled into the following propositions and therefore, issues :-

(1)	Ground 1 (of the Perfected Grounds of Appeal)
	The judge wrongly directed himself on the law regarding the common law offence of perverting the course of public justice. He held that the activities of the applicants in enforcing the law against hawkers came within the course or administration of justice. As he said in paragraph 121 of the Reasons for Verdict :-
	"It is also obvious that each of the members of J Squad, trained and experienced as they were, knew that they were engaged in the administration of public justice. The administration of justice is not confined to the processes of adjudication. It begins well before that time."
	Mr McCoy said this was wrong. He submitted that the course or administration of justice was referable only to curial proceedings, in other words, proceedings before a court or some other tribunal whose function is to see to the adjudication of the matter brought before it, whether criminal or civil. (Issue 1: What is the nature of the offence of perverting the course of public justice?)
(2)	Grounds 2, 4, 5, 6 and 7 (of the Perfected Grounds of Appeal)
	The judge was also wrong in his analysis of the facts going to the establishment of the offence. In particular, it was said that he was wrong to take the view that if Particular (i), namely the predetermination of the number of arrests to be made, was proved, this had a tendency to pervert the course of public justice. It was also submitted that he was wrong to reach the same conclusion as regards the failure on the part of the applicants to seize all the goods of the hawkers at the time of arrest; similarly as far as the use of a nominated officer on the Form 601 documents was concerned. Essentially, the argument was that the judge had misanalysed the facts. He had perhaps applied the wrong test as well in that it was necessary for the prosecution to demonstrate the existence of acts that showed a manifest tendency to pervert the course of public justice, a mere tendency being insufficient. (Issue 2: The proper analysis of the facts).
(3)	Ground 3 (of the Perfected Grounds of Appeal)
	The judge ignored or failed to take sufficiently into account the applicants' case that in carrying out the activities at Yan Oi Court, they were merely following the instructions given to them at training school to adhere to local and common practices. This was said to be significant to the issue of mens rea (Issue 3: Did the applicants have the requisite mens rea?)
(4)	Additional Ground
	There was in any event insufficient evidence to convict the 18th and 19th applicants. (Issue 4: The 18th and 19th applicants).

17.We propose dealing with each of these issues in turn.

Issue 1 : What is the nature of the offence of perverting the course of public justice?

18.As succinctly stated by the authors of Archbold: Criminal Pleading, Evidence and Practice 2003, broken down to its constituent parts, the common law offence of perverting the course of public justice is committed where a person or persons :-

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

(2) which has a tendency to; and

(3) is intended to pervert;

(4) the course of public justice.

19.The rationale of this offence, which is one against public justice, is to criminalize acts or conduct which may result in miscarriages of justice or which may result in defeating the ends of justice. Thus rationalized, in our view, the nature of the offence must necessarily be a wide and general one, encompassing a number of possible situations.

20.There are, however, important features of this offence which ought to be emphasized.

21.First, the phrase 'the course of justice', just like phrases such as 'the administration of justice' and 'the ends of justice', is one that is directed to courts of law and other tribunals (whether created or perhaps recognized by statute) which have the function of adjudicating on or determining disputes. In criminal proceedings, it is the determination (whether by the court itself or by a jury) of guilt or innocence. In civil proceedings, it is the determination (again whether by the court itself or by a jury) of civil disputes between private parties. Disputes of course also arise for determination in the public law sphere.

22.Put another way, the 'course of public justice' is a reference to curial proceedings. While the reference to curial proceedings is usually a reference to courts of law, it is not restricted to courts. It can equally apply to arbitrations (see, for example, R v Vreones [1891] 1 QB 360) which are on the whole dispute resolution proceedings brought about by contract between private persons, albeit recognized by statute (e.g. the Arbitration Ordinance, Cap.341).

23.Accordingly, in determining whether an act or conduct tends to pervert the course of public justice, one must inevitably have regard to the effect of such act or conduct to curial proceedings. It is not necessary that such curial proceedings are actually in existence at the time of the relevant act or conduct or whether such curial proceedings ever take place at all. It is sufficient if such proceedings are imminent, probable or even possible at the time of the relevant act or conduct :- see The Queen v Rogerson (1992) 174 CLR 268, at 277 (Col. 2) per Mason CJ. Therefore, it is no bar to a charge of perverting the course of public justice that the relevant curial proceedings have not yet begun. From the authorities that exist in this area of the law, it can be seen that as far as criminal proceedings are concerned, the charge is often appropriate where there has been some act committed during the course of police investigations. In Rogerson, in the joint judgment of Brennan J and Toohey J, reference is made to attempts to mislead the police in the course of their investigations :- see 281 (Col. 2). Even where police investigations have not yet begun, it is possible that acts or conduct may pervert the course of public justice :- see R v Rafique [1993] QB 843. In the civil sphere, where there was an attempt to mislead by the certification of a higher quality for a shipment of wheat than was actually the case, the offence was committed even though the relevant curial proceedings (arbitration) had not yet commenced :- see R v Vreones.

24.Though, as a matter of timing, it is not necessary that the relevant act or conduct under scrutiny be perpetrated at a time when curial proceedings are in existence, there must nevertheless be a discernible link between the act or conduct and any possible or actual curial proceedings. In the context, for example, of police inquiries, Deane J said this in Rogerson at 293 (Col. 2) to 294 (Col. 1) :-

"Police inquiries 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 inquiries, 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."

25.In some of the cases from England and a decision of this court, there have been some dicta to the effect that police investigations are somehow also a part of the course or administration of justice. In Chau Au Shu v The Queen [1981] HKLR 289, after referring to R v Bailey [1950] NIR 15 and R v Thomas [1979] QB 326, Li JA said at 295J :-

"In the light of these authorities we have come to the conclusion that the course of public justice has begun as from the time when police investigation begins."

In R v Selvage [1982] 1 QB 372, in a passage that was much discussed by the High Court of Australia in Rogerson, Watkins LJ said this at 381 G-H :-

"The facts of that case [a reference to R v Vreones] are, in our view, as close to if not on the very boundary itself of the offence of perverting the course of justice. Nevertheless, it serves to provide one of the vital tests or principles which helps to determine whether or not a charge of perverting the course of justice is properly laid. This we take to be that a course of justice must have been embarked upon in the sense that proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress in order that the act complained about can be said to be one which has a tendency to pervert the course of justice." (emphasis added)

26.Mr McCoy submitted that that part of Li JA's judgment in Chau Au Shu, referred to above, was wrong, as were those dicta to similar effect in Bailey and Thomas. He relied principally on Rogerson in which the proposition that police investigations formed a part of the course of justice was quite clearly rejected. Mr McCoy has referred us to various parts of the judgments of Mason CJ, Brennan and Toohey JJ, Deane J and McHugh J.

27.In our view, properly analyzed, the approach of the English courts and that of the High Court of Australia in Rogerson do not differ in substance. The English cases and also that of Chau Au Shu all proceeded on the basis of the importance of the link between the act or conduct under scrutiny and possible curial proceedings. This was exactly the approach of the High Court of Australia in Rogerson. In Selvage, it was the failure of any link between the acts complained of (fraudulently deleting the existence of driving offence endorsements from a driving licence) and any curial proceedings that persuaded the English Court of Appeal to quash the conviction in that case. It is clear from that authority that the link must exist. Seen in this light, the passage from the judgment of Watkins LJ in Selvage referred to in paragraph 25 above, cannot be said to be authority for any proposition that the course of justice can solely be referable to police investigations as an end in itself. As the passage makes clear, the investigation must be connected to proceedings that may be brought. We are of the view that Chau Au Shu must be seen in the same light.

28.The second important feature of this offence is that the actus reus involves an act or conduct which has a tendency to pervert the course of public justice. Here, we agree with the requirement that the tendency must be a clear or manifest one. That said, it is important to bear in mind that all that needs to be proved is a tendency. It is unnecessary to prove either that the relevant tribunal was or would actually have been misled.

29.The third feature to which we draw attention is the requisite mens rea of the offence. It is insufficient for the prosecution merely to prove the intention to do the act or embark on the conduct complained of :- see Selvage at 383F. 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 realized 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. See here :- Rogerson at 278 (Col. 1), 280 (Col. 1), 282 (Col. 1); Rafique at 850-851.

30.Lastly, we return to generalities. 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.

31.In the Reasons for Verdict, the judge, in his analysis of the law, first referred to the law of conspiracy and in this context, section 159A of the Crimes Ordinance. This has not been criticized and it is therefore unnecessary for us to deal further with this aspect.

32.As to the common law offence of perverting the course of public justice, the judge said, rightly in our view, that it was unnecessary for the prosecution to prove that the course of justice was in fact perverted. However, he then said that a course of justice had actually to be in being at the time of the alleged act or conduct. He took the view that every time J Squad went to Yan Oi Court, they were therefore engaged in enforcing the law and were therefore engaged in the administration of justice. The judge said (no doubt having in mind some of the dicta and authorities to which we have referred in paragraph 25 above) that the administration of justice was not confined to the adjudication process. We are unable wholly to endorse the judge's statement of the law :-

(1)	It is not necessary for the prosecution to prove that the course of justice was actually in being at the time of the act or conduct complained of. As we have seen, the offence consists of acts or conduct which have the manifest tendency of perverting the course of justice, whether or not such a course is actually in existence. It is sufficient if the curial proceedings (which may afterall never take place) are imminent, probable or even possible.
(2)	The applicants, while admittedly enforcing the law (in the same way that the police do), were however not engaged in the administration of justice. As we have said earlier, the course or administration of justice refers only to curial proceedings. And while the judge was right to say that the administration of justice is not confined to the actual adjudication of a case, it is however referable only to curial proceedings.

33.Nevertheless, in the end, we are of the view that such errors of law as may have crept into the judge's Reasons for Verdict, were ultimately insignificant in the context of the facts of the case. If anything, the judge's approach to the law signified a more stringent test for the prosecution to satisfy. Indeed, Mr McCoy was not really able to point to any obvious error made by the judge consequent upon his understanding of the law.

34.We now turn to the application of the law to the facts of the case.

Issue 2: The proper analysis of the facts

35.It is first important to bear in mind just what the applicants were doing when they performed their duties at Yan Oi Court. In order to control and monitor hawkers' activities in Hong Kong, officers such as the applicants must, from time to time, make arrests and confiscate hawkers' goods. This is one of the main ways of ensuring that there is no illegal hawking or, in the case of licensed hawkers, of ensuring that they do not cause any undue obstruction.

36.In making an arrest, as opposed to merely giving a warning, a Hawker Control Officer must at least have in mind curial proceedings (for example, a prosecution for obstruction under sections 53 and 56(2A) of the Hawker Regulation). It is probable that an arrest will invariably give rise to charges being laid and a prosecution mounted.

37.Further, when documents such as Forms 601 and 602 are produced, it is even clearer that a prosecution may well eventually take place. We have already seen that both forms are the preliminary documents paving the way for charges to be laid against hawkers.

38.In the premises, it appears to us to be a compelling conclusion that when the applicants agreed to fill in the documents (being Forms 601 and 602) by inserting what to their knowledge were false details as to the arresting officer, the goods alleged to be seized and other circumstances of the arrest, they were conspiring to pervert the course of public justice: -

(1)	The details contained in the Form 601 and 602 documents were the basis of any prosecution against the relevant hawker referred to in them. It is clear that in any proceedings in the magistrates' court that would or might be launched, these documents would form an important part of the evidence. False details, whether of the arresting officer or of the goods seized, would inevitably have at least the potential of misleading the court in those proceedings and of deflecting the court from arriving at a just result.
(2)	Each of the applicants would or must have appreciated the effect of the use of false documents in the circumstances.

39.We are unable to detect any error in the way the judge dealt with the facts. He said this in relation to the false documents (at paragraph 124 of the Reasons for Verdict) :-

"Telling lies in such documents prepared in the course of the administration of justice leads inevitably to it being perverted. There are further reasons why such nomination would tend to pervert but it is hardly necessary to add them."

40.While it is correct that the judge regarded that the predetermination of arrests as amounting to a tendency to pervert the course of public justice, it is clear that he did so not in isolation, but only in the context of the other facts (in particular the generation of false documents). The same can be said of the judge's remark that the failure on the applicants' part to seize all the hawkers' goods amounted to a wrongful act tending to pervert the course of public justice. It seems to us clear that the judge was referring to this aspect not as a statement that Hawker Control Officers have no discretion whether or not to confiscate goods (they clearly do :- see section 86(1) of the Public Health and Municipal Services Ordinance) but more so as yet another indication reinforcing the point earlier made about falsifying documents (and in particular the Form 602 documents).

41.The acts of the applicants all had and were intended to have a manifest tendency to pervert the course of public justice.

Issue 3: Did the applicants have the requisite mens rea?

42.In our view, there is nothing in this point. While there was some evidence, particularly from an ex-member of J Squad who gave evidence in exchange for an immunity (PW7), that in doing what they did, the applicants were merely adhering to what they were told at training school, this cannot constitute any defence and the judge was entirely right to reject it.

43.The following of instructions does not constitute a defence to a criminal offence (the so called 'superior orders defence') by itself, but may be relevant when one considers the requisite mens rea. We were taken to a passage in Smith and Hogan: Criminal Law (10th Edition) at 287.

44.In the present case, as the judge remarked, there was no evidence to suggest that the applicants did not realize that what they were doing was wrong. Indeed, the evidence suggested otherwise. For example, PW7 realized that what she was doing was wrong, although she said at one stage she did not realize it was criminally wrong (which is irrelevant).

Issue 4 : The 18th and 19th applicants

45.In our view, there is no merit in this ground either.

46.Mr McCoy rightly pointed out to us that these applicants joined J Squad somewhat later than the others (they joined only in October and November 1998). However, the duration of the conspiracy alleged against the applicants extended from 1st May 1997 to 31st March 1999. It could hardly be said that the 18th and 19th applicants only joined at the very last moment.

47.Further, as is clear from the agreed facts, both were involved in a significant number of arrests and were responsible or named in a number of the Form 601 and 602 documents. The judge was satisfied of their involvement in the unsatisfactory practices of J Squad and we see no basis for the suggestion he was wrong in reaching these conclusions. There was no evidence to suggest that the 18th or 19th applicants were in any different a position than the other applicants and, apart from the fact that they joined later than the other applicants, we were not shown any.

48.In paragraph 113 of the Reasons for Verdict, the judge said that the 18th and 19th applicants were "each" involved with PW6 or PW7, at least on one occasion as a witnessing officer. Mr McCoy submitted that this was somehow inaccurate, but it is clear from Schedule A to the admitted facts that the judge was right.

Conclusion

49.For the above reasons, we are not satisfied that any viable grounds of appeal exist and accordingly, we dismiss the applications for leave to appeal against conviction.

Representation:

Mr Gerard McCoy, SC & Mr Bernard Chung instructed by Messrs Lau, Kwong & Hung for D1 to D13 & D16 to D19.

Mr Kevin P Zervos, SC, SADPP & Mr Gary Lam, SGC of the Department of Justice for Respondent/HKSAR.