HKSAR v. Kwok Wing Yip

CACC000588/2002

CACC 588/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 588 OF 2002

(ON APPEAL FROM DCCC 331 of 2002)

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Coram: Hon Stock JA, Cheung JA and Tong J in Court

Date of Hearing: 8 October 2003

Date of Judgment: 8 October 2003

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

The charge

1This is an application for leave to appeal against conviction. The charge against this applicant was that:

"... on 24 September 2001, at Grandlake Restaurant, No. 271 Des Voeux Road West, Western, in Hong Kong with intent to pervert the court of public justice, did an act which had a tendency to pervert the course of public justice in that he asked Wong Simon Yu-wing, magistrate of the Western Magistracy, not to sentence Lee Pui-ying also known as Lee Hung, who was a defendant in a criminal trial in progress, to prison."

On 15 November 2002, after a trial before HH Judge Barnes in the District Court, he was convicted of that offence and he was sentenced to a term of 18 months' imprisonment. He has abandoned his application for leave to appeal against sentence so that, by operation of statute, that application stands dismissed.

The facts

2The facts of the case fall within a fairly narrow compass. The applicant was at all material times a solicitor's clerk, and the complainant (as we shall call him though we are aware that he made no report to the police) is a magistrate who before his appointment as such was a practicing barrister who was regularly instructed by firms by which the applicant was employed, most particularly by a firm called Ivan Tang & Co. It is common ground that Mr Wong was appointed as a magistrate in November 2000; and further that between about March 1999 and 21 September 2001, the applicant and the complainant had not met. However, on 21 September 2001 the magistrate was hearing a case at Western Magistracy in which a female named Lee Pui-ying faced charges of electoral connected offences, namely, two charges of conspiracy to defraud an election committee and two of perverting the course of justice. It seems that on 21 September 2001 the case was adjourned part heard to 3 October 2001. In the late afternoon of that day, that is, 21 September, the applicant walked into the court over which the magistrate was presiding and after the court rose for the day, the applicant approached the magistrate. There was at trial in the District Court an issue as to whether the magistrate invited the applicant into his chambers but, be that as it may, it is clear that they met in the building and talked. The complainant's evidence was that the applicant suggested that he and the magistrate go for a drink. Mr Wong made an excuse and declined the invitation. There was then suggested by the applicant that they have dinner and that too was declined but instead, when the applicant suggested as a further alternative that they have lunch, the magistrate, thinking it difficult or churlish to refuse further, agreed to meet the applicant for lunch the following Monday, that is, 24 September. It is common ground that they met and went to have lunch at the Westlake Restaurant near the courts. What was there said was in dispute.

The material evidence

3The evidence of Mr Wong, in its most material part, went as follows; and given the grounds of appeal it is necessary to rehearse that part in full:

"	Q.	And whilst having lunch together, what was the discussion about?
	A.	Well, during the lunch-time we were talking about the old days when we had worked together; nothing really special that we touch on. In fact, I think we spent most of the time talking about Mr Kwok's senior, Mr Lo, because, as I understand it, the relationship between Mr Kwok and Mr Lo got to the point of - shall I describe it as very bad, so Mr Lo became the subject of our conversation at the time.
	Q.	I see. Now, at about 2.00 pm, after sitting there for a little under an hour with one another, having lunch, was arrangements then made for the bill to be paid?
	A.	Right. I recall I looked at the time and, as I had to start court at about 2.15, so I asked the waiter to hand me the bill.
	....
	Q.	And whilst you were waiting for your change, was anything said to you by Mr Kwok?
	A.	Yes. In fact, at that particular point in time Mr Kwok mentioned - in fact, he asked me a question. The question was to the effect that if someone is involved in a vote planting case - meaning a corrupted election case ...
	....
	A.	...he asked me if someone is convicted of that crime, would that someone be imprisoned, and I remember telling him that ...
	....
	A.	...even if that someone pleads guilty for that type of offence, I would most certainly send that person to prison, even on a guilty plea.
	....
	A.	At that point in time, Mr Kwok then went on to say that he had a relative who was involved in a vote planting case, and at that particular point in time, because I was trying a high profile case in Western Magistracy ...
	....
	A.	The defendant in that high profile case was a former popular movie star by the name of Lee Pui-ying.
	....
	A.	She was charged with four offences: two counts for conspiracy to defrauding the election committee and two counts for inciting others to pervert the course of public justice.
	....
	A.	When Mr Kwok asked me if someone will be sent to prison for the vote planting case, at that point in time, because I was handling the case which I just mentioned, the first thing which came up to my mind was whether Mr Kwok was talking about the case that I was hearing.
	....
	A.	So I asked Mr Kwok whether he was talking about the Lee Pui-ying case, the one which I was hearing.
	....
	A.	And his answer was "yes". And then, after learning that he was trying to discuss about that case with me, I stopped him and I said the conversation of this nature was highly improper, and I invited him to stop discussing with me.
	....
	A.	And then he went on to mention about his mother, and he said his mother was the half-sister of another relative. In Chinese it's called "tung fu yee mo".
	COURT: So a half-sister with the same father?
	A.	That's right, yes.
	....
	A.	And Mr Kwok then went on to say - I'm trying to put the sequence right.
	....
	A.	Mr Kwok then went on to say he's got no choice, but I am certain that that particular sentence - "I've got no choice" - was not being written down in the witness statements I gave to the police.
	....
	A.	In any event, Mr Kwok said she didn't want to end up with a situation like Pamela Pak. Pamela Pak is another celebrity in Hong Kong who was at the time, if I recall correctly, being imprisoned for three months.
	....
	A.	In any event, the entire sentence Mr Kwok said was ...
	COURT: Just one moment. Are you going to tell me in Chinese?
	A.	Well, I can do it in both ways.
	COURT: Right. If there is no objection, let's hear what was the actual wording used in Chinese, and I'll write it down.
	MR CHENG: Thank you, yes.
	COURT: Yes, what did he say?
	A.	Right. 郭先生就話“冇計吖”咁樣，“佢唔想好似白姐姐咁，臨老過唔到世”. That's all.
	COURT: That's all the Chinese?
	A.	Yes, for that particular piece of conversation.
	COURT: Thank you. Yes.
	A.	I should emphasise the Chinese evidence which I just gave you is - I'm trying to recollect as best as possible. I wouldn't go as far as saying that was exactly what he said word by word.
	....
	A.	In any event , Mr Kwok went on. As I said, Mr Kwok indicated she didn't want to be imprisoned, which I took to mean that the defendant, Lee Pui-ying, didn't want to be imprisoned.
	....
	A.	And I also warned Mr Kwok that what he was trying to do was extremely dangerous.
	....
	A.	As Mr Kwok did not appear to have any intention of stopping the conversation toughing on the case which I was hearing, I gear off the conversation.
	....
	A.	I told Mr Kwok that, "Well, there is nothing to worry about." The defence counsel, Mr Lawrence Lok, Senior Counsel, was doing a very good job in that case.
	....
	A.	And that turned out to be successful. In other words, he did not carry on with the conversation touching on the Lee Pui-ying case.
	....
	A.	We then left together. In fact, Mr Kwok walked me to Western Magistracy.
	....
	A.	And if I recall correctly, I then rang up the Chief Magistrate, Mr Patrick Li, to report the matter to him." (Tr pp 34Q-38P)

The witness's translation or interpretation of the passage we there see transcribed in Chinese characters was: "I've got no choice". That translation was clarified later and determined by the court as meaning: "Nothing can be done".

4Now, since the grounds of the appeal are presented on the basis of the judge's analysis of the complainant's evidence, and do not seek to overturn her rejection of the applicant's evidence, it is unnecessary to rehearse the applicant's testimony in any detail. It suffices to summarise the defence by saying that the applicant denied any conversation of the sort suggested by Mr Wong, and said instead that he had sought out Mr Wong because he, the applicant, had received a letter from the Law Society only a day or so before 21 September about some disciplinary proceedings which were afoot, and he thought that it might have to do with an action which the magistrate had launched against Ivan Tang & Co. for outstanding fees and he wanted to know whether he, Mr Wong, knew what this complaint was all about and that at the lunch on 24 September, Mr Wong had made an improper suggestion that he, the applicant, should falsely support his claim in respect of the fees. That defence was roundly rejected by the judge as being entirely untrue.

Findings

5The judge found:

(1)	that Mr Wong was an honest, credible and reliable witness and she accepted his evidence "unless otherwise indicated";
(2)	that Mr Wong had made no improper suggestion seeking false support for a brief fee claim; and
(3)	that the applicant who had instigated the visit to the court, as well as the whole idea of a further meeting, asked Wong about the vote planting case in the terms suggested in his evidence by Mr Wong:
	"It is my finding" she said "that at the time it was the Defendant who brought up the subject of 'vote-planting case' when he asked Wong whether one involved in such a case would be sent to jail. After Wong replied that such a person would most certainly be sent to jail even on a guilty plea, the Defendant then told Wong his relative was involved in a vote-planting case. Although Wong had said as soon as he heard the Defendant asking him if someone would be sent to jail for 'vote-planting' the first thing that came to his mind was whether the Defendant was talking about the case he (Wong) was hearing, Wong must have already made his reply to Defendant saying one would most certainly be sentenced to jail before he asked the Defendant if the Defendant was referring to the Lee case. Upon the Defendant answering in the affirmative, Wong immediately warned the Defendant that it was highly improper for the Defendant to do what he had done. After he had given the warning the Defendant then mentioned his mother being the half-sister of Lee and uttered the sentence 'Nothing can be done. She does not want to be like Pak Che Che who suffers in her remaining years' (無計呀，佢唔想好似白姐姐咁，臨老過唔到世). Although Wong in his evidence said the Defendant then went on indicating that 'she did not want to be in prison', which Wong took to mean that the defendant Lee did not want to be in prison, I do not believe that the Defendant had actually made any overt reference to Lee. My impression of Wong's evidence was that he was trying his best to recall what was said in sequence at the time. He had first given his own interpretation/understanding of what was said before repeating the sentence uttered in Cantonese. In fact when he was asked whether any other matter was touched upon after the Defendant raised that matter of 'vote-planting' and made reference to an involvement in the case of the Defendant's relative, Wong replied by saying that 'he should not speculate' but that 'the evidence he gave in Chinese' (meaning the sentence無計呀，佢唔想好似白姐姐咁，臨老過唔到世) already answered the question. I would have thought if there were any overt reference to Lee not wanting to be jailed, Wong would be mentioned that there and then. Further, although Wong said he also warned the Defendant that what he (the Defendant) did was extremely dangerous, I do not think that Wong had repeatedly warned the Defendant either. I do find that after Wong had warned the Defendant what he did was improper and dangerous, the Defendant went on to mention his mother being a half-sister of Lee and then uttered the sentence "she does not want to be like 'Pak Che Che' who suffers in her remaining years" (無計呀，佢唔想好似白姐姐咁，臨老過唔到世) which gave Wong the impression that the Defendant was not going to stop talking about the 'vote-planting case' and Wong then successfully 'geared off' the conversation. I am satisfied when the Defendant uttered the sentence "she does not want to be like 'Pak Che Che' who suffers in her remaining years" he meant to convey to Wong that Lee did not want to be sent to jail like Pamela Pak. When I make this finding I do bear in mind Wong's evidence that the uttered sentence was not meant to be verbatim of what the Defendant had said. I am satisfied what was uttered was close enough to what Wong had testified: with reference to Lee not wanting to end up like 'Pak Che Che', meaning Lee did not wish to be sent to jail." (Tr pp 19M-21J) (Original emphasis).

6The judge went on to find that the applicant's conduct was clearly an attempt to cause the magistrate to act in a particular way in relation to the case which he was then trying, and that the applicant had thereby acted in a manner which had a tendency to pervert the course of justice; and that the applicant had intended so to act.

The Grounds of Appeal

7There are two amended perfected grounds of appeal against conviction. They are:

"	(1)	The learned trial Judge erred in her findings relating to both what the applicant said and the correct sequence of the conversation. The evidence of PW1 gave rise to uncertainty in relation to these important aspects of his evidence, and the learned trial judge failed to take into account the full implications of his evidence about these matters.
	(2)	The learned trial Judge erred in finding that it had been proved beyond reasonable doubt that the applicant "intended to pervert the course of justice in that he subtly asked Wong, not to sentence Lee to prison". The words which the learned trial Judge found the applicant to have used were equivocal and not capable of giving rise to an irresistible inference of guilt."

Analysis

8Mr Plowman SC, who appears today upon this application for the applicant, has in his oral submissions adopted the written submissions which have been presented, and has expanded upon them. He says, first, that Mr Wong, in his evidence, expressed qualifications about the sequence of what was said, and as to what in fact was said, the latter because he, Mr Wong, was interpreting into English a conversation which had taken place in Cantonese.

9We think, with respect, that far too much is made in these grounds about the reservations or qualifications expressed by the witness. It is clear enough to us what the crucial relevant sequence was and in respect of which there was no departure, and that such reservations as were expressed both as to sequence and as to the very precise words were of no true relevance to the issue which the judge had to determine. The essence of the evidence was clear enough in its essential particulars. What was important was the evidence that the applicant had broached the subject of imprisonment for election-connected offences, at a time when the magistrate was dealing with precisely such an offence, as the applicant, who had been in court that day, obviously well knew; that the moment the question of sentence was mentioned the complainant was disturbed and asked whether the applicant was talking about that very case and that was confirmed; and that thereafter the applicant continued to talk and mentioned a relative allegedly involved in the case, a half sister of his mother, or at least a relative, and concern that that relative should not suffer the same fate as Pamela Pak, a well-known personality who had been imprisoned. It matters not, in our judgment, which of the latter sentences came in which order, and it is to the exact sequence of the latter sentences, it seems clear to us, that the reservations were directed. It matters not what the sequence of those latter sentences was, because a common sense analysis tells one that their effect, whatever the exact sequence, was the same. The argument is that if the applicant had stopped his conversation about the case after he had been warned by Mr Wong of the dangers of continuing, the verdict would have been different and that so much is implicit in the Reasons for Verdict. One matter is crystal clear and subject to no reservation, which is that the evidence of Mr Wong was that the applicant persisted in his discussion of the subject even after he had been warned off, which is precisely why the witness, Mr Wong, finally tried the tactic of saying that counsel for the defendant in that particular case was doing a fine job. He said specifically: "He [the applicant] did not appear to have any intention of stopping the conversation," and that it was only when, ultimately, Mr Wong said to the applicant that counsel was doing a good job, that his attempts to steer the applicant away from this highly improper conversation worked. The judge found in terms (page 20R) that "after Wong had warned the Defendant what he did was improper and dangerous the defendant went on to mention his mother being a half sister of Lee ...", this although the judge was fully conscious of the reservations about the exact sequence of sentences. That finding is not surprising. It was the clear thrust of the witness's evidence that after the initial broaching of the subject the complainant became alarmed and tried to steer the applicant away from the subject, but that the applicant persisted nonetheless.

10Mr Plowman argues that there was an absence of proof of primary facts from which to draw an inference of guilt. It is said that there was no evidence that the applicant asked the magistrate not to sentence the defendant in the then current case to imprisonment and certainly did not do so in those very terms. It is also said in this context that even if the judge's understanding of the sequence of the sentences was correct, the judge failed to consider that what was said by the applicant was also consistent with an ill-advised inquiry, an interpretation enhanced by the applicant's use of the words "Nothing can be done". This again, with respect, appears to us to ignore reality. This was not an exercise in construing a statute. It was an exercise by the court below in common sense. The applicant had not seen Mr Wong for years. Here he comes on the day of a trial in which a defendant faces charges for electoral misconduct and the applicant, not some lay person but a solicitor's clerk well versed in criminal matters and criminal procedures, asks the presiding magistrate, who has been a professional and social colleague, whether in electoral fraud cases sentences of imprisonment are inevitable and when told Yes, does not stop there, where he might have stopped had this been a mere inquiry, but prays in aid family concerns about the prospect of imprisonment. The words "Nothing can be done" are words that can be used in a whole variety of contexts and with a whole variety of intonations and implications. If this solicitor's clerk was not asking the magistrate to do his family a favour by not sentencing the defendant Lee to imprisonment, then what was he doing? There was in our judgment no sensible inference to draw but that which the judge drew.

11There is a further point which Mr Plowman relies upon, which is the judge's description of the defendant's alleged relative in the election case as a "close" relative. He says that there is no evidence that the relative was close and the judge wrongly relied, he argues, on the closeness of the relationship. Again, with respect, this is not realistic. The gravamen of the conduct was an attempt to secure a favour for an alleged relation of the applicant's mother. Whether that relationship was close or not seems to us to be of no significance in detracting from the true attempt upon which the applicant was embarked.

Conclusion

12This application has no merit at all, and it is dismissed.

Representation:

Mr Gary Plowman SC instructed by Messrs Christopher Li & Co. for the Applicant

Mr Kevin P Zervos, SC, SADPP leading Mr Alex Lee, SGC of the Department of Justice for the Respondent