Mak Sun Kwong and Another v. The Queen
Read the full judgment text of CACC 1105/1979 on BabelCite. This Court of Appeal judgment was delivered on 12 July 1980.
1. The appellants in this case were originally convicted of conspiracy to pervert the course of justice and of incitement to conspire. We allowed their appeals on the charge of conspiracy to pervert the course of justice but rejected their appeals on the separate convictions of incitement to conspire. The facts appear fully in the judgment of Addison, J.
Cited by 11 cases
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CACC001105/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 1105 & 1108/79 -----------------
----------------- Coram: Leonard J.A., Addison J., Garcia J. Date of Judgment: 12 July 1980 ----------------- JUDGMENT ----------------- Addison, J.: I have been asked to deliver my judgment first. 2. The appellants were separately charged with but jointly tried for and convicted of conspiracy to pervert the course of justice and of incitement to conspire. The particulars of the conspiracy charge against the 1st appellant, Mak Sun-kwong alleged that he "between the 20th November, 1978 and the 26th May, 1979 conspired with Wong Wah and other persons unknown to pervert the course of justice by interfering with prosecution witnesses and by taking such other unlawful action as might be necessary to obtain the acquittal of Tong Yuk-tim on charges against the Dangerous Drugs Ordinance." 3. There was a similar conspiracy charge preferred against the 2nd appellant, Wong Wah, who went under the name of Wong Yuen-woang, save that the particulars accused him of conspiring "with Mak Sun-kwong and other persons unknown." 4. Against each appellant was a second charge of incitement to conspire and, here, the particulars differed. Regrettably it is necessary to set them out. The particulars of the second charge against the 1st appellant were:-
Those against the 2nd appellant were as follows:-
5. Thus so far as the 2nd charges against these appellants were concerned the dates varied and whereas that preferred against the 1st appellant alleged he incited Chan Hing-mee to conspire with him and other persons unknown that preferred against the 2nd appellant accused him of inciting the same person to conspire with him, the 1st appellant and others. 6. Quite obviously the Crown had different episodes in mind as the subject matter of the incitement charges and it was argued before this court that the learned trial judge did not appreciate that there was this difference when separately convicting these appellants. Though I think these charges were sloppily drawn in that the particulars could and should have been drafted with greater precision nevertheless I am satisfied neither appellant was embarrassed in the conduct of his defence. Further it seems clear that the reference to "other unknown persons" was unwarranted on the evidence. 7. For the purpose of this appeal it is necessary to dwell a little on the facts. Mrs. Chan Hing-mee is the wife of Tong Yuk-tim, the person named in the first charge. He was arrested on the 20th November 1978 for manufacturing and trafficking in dangerous drugs. The dangerous drug concerned was heroin and it amounted to approximately 30 lbs. in weight. There were committal proceedings and his trial was heard in the High Court between the 4th and 7th June, 1979 when he was convicted and sentenced to 14 years' imprisonment. His conviction for trafficking was upheld on appeal and he is currently serving that sentence. He was represented both in the committal proceedings and at his trial. 8. The 1st appellant was an Inspector in the Customs and Excise Department who was involved in the prosecution of Tong Yuk-tim at the committal stage and who knew of the Crown witnesses. The 2nd appellant was his friend. 9. On or about the 2nd May, 1979 the 2nd appellant telephoned Mrs. Chan and told her that if she was interested in saving her husband she should meet him the following day at Shamrock restaurant. She went there with her cousin Shek Hung. At that meeting the 2nd appellant showed her a piece of paper on which were the name of her husband and his co-accused and she thought that document emanated from the High Court. In fact the document was a photo-copy of a report of the case taken from an English newspaper and supplied by the 1st appellant to the 2nd appellant. Wong told Mrs. Chan it would cost a lot of money to save her husband and he mentioned the figure of $300,000 saying some of it would go to the Legal Department and some to the Preventive Service. He also spoke of arranging some discrepancies in the evidence. He also asked her if she knew the 1st appellant who had been the prosecutor in the committal proceedings and she said she had seen him. Wong said he would arrange a meeting between them later on. 10. Mrs. Chan spoke to her husband about this that same day when it was decided they would only pay if her husband were saved. There was a further meeting between the 2nd appellant, Mrs. Chan and Mr. Shek and this eventually led to the meeting at the Oceania restaurant at which the 1st appellant was also present. This meeting was held sometime in the middle of May. At that meeting the 1st appellant announced he was attached to the prosecution section and the witnesses were his colleagues. He said he could arrange the evidence so that her husband could be saved. It was important to the 1st appellant that Mrs. Chan should change her lawyer and he suggested he would instruct one who would co-operate with them. There was a discussion about the cost involved and the means of raising the money and it was agreed Mrs. Chan would meet the 2nd appellant the following day. She duly met him and he told her it would cost $120,000 for new lawyers, including a deposit of $10,000 to $20,000. She spoke to her husband about this and for various reasons they decided not to go ahead with the plan. She told the 2nd appellant she was no longer interested. 11. On or about the 20th May the 1st appellant telephoned Mrs. Chan, seemingly unaware of her decision, and arranged a meeting with her at the Oceania restaurant. She went there with her neice Chow Yung-yuk and the husband of her neice Kwan Chak-wah. On her solicitor's advice she took along a tape-recorder and, unknown to the 1st appellant, she recorded his conversation. The tape and transcript of the recording were produced in evidence as ExP1. A further meeting at the Oceania restaurant was arranged with the 1st appellant for the 25th May and on this occasion she took with her a recording machine supplied by the I.C.A.C. Again the whole conversation was recorded at the end of which the 1st appellant was arrested. The tape and its transcript were produced in evidence as ExP3. 12. In cross-examination Mrs. Chan said,
13. There were contradictions in her evidence as well as discrepancies between her version and that of Shek Hung as to what the 1st appellant said at their first meeting in the Oceania restaurant. These contradictions were broadly dealt with by the learned trial judge who saw no real significance in them as there still remained the unchallenged tape recordings. 14. The 2nd appellant was arrested on the 31st August, 1979. He was properly cautioned and then asked a number of questions. At first he denied everything. Later he gave full details of his involvement emphasing that when Mrs. Chan told him they were not interested in his proposals he dropped out of the picture. 15. In his answers he said he was more or less a liaison man for the 1st appellant who had promised him some reward when the case was fixed up. The amount could only be calculated when the case was over. There was no evidence against either appellant of him doing any act in pursuance of his intention to pervert the course of justice. 16. Each appellant gave evidence at his trial denying any intention to pervert the course of justice. The 1st appellant suggested that he was simply seeking to get a commission from persuading Mrs. Chan to engage new lawyers. He said:
17. In his defence the 2nd appellant denied telling Mrs. Chan that he could fix up fokis of the Customs and Excise Department or members of the Legal Department. In fact he knew no one in the Legal Department. He said he and the 1st appellant were simply trying to get her to change her lawyers so that they could get commission and he added:
18. Inherent in the defence of each appellant was that this was a confidence trick to swindle Mrs. Chan. This probability appeared also from the transcripts of the tape recordings, a considerable part of which was devoted to her changing her solicitors and obtaining a good barrister. References were made in the transcripts to statements made by the 1st appellant that no payment was necessary if her husband was not acquitted; that if it could not be done not even 5% would be accepted; that had a good barrister been engaged for the committal a number of exhibits would have been excluded. Mention was also made of ways of raising a deposit for the solicitors; the removal of middle-men; visiting the solicitor and so on. 19. Whilst I do not take the view there could not have been a conspiracy to pervert the course of justice nevertheless I feel that there was the live possibility that this could equally have been a conspiracy to defraud Mrs. Chan. This is the point raised by Mr. Hidden in his appeal against conviction on the 1st charge. 20. How then did the learned trial judge deal with this possible verdict. In for Reasons for Verdict he said:
21. Thus in the first paragraph the learned trial judge was considering only one inference from the evidence, namely whether it warranted a conspiracy to pervert the course of justice without considering a possible alternative inference of a conspiracy to defraud Mrs. Chan. In his second paragraph he was directing his mind to their credibility and having found their story that they were simply seeking an honest commission from persuading her to change her solicitors untrue he found them guilty of the conspiracy charged. He did not, with respect, decide whether the allegations of getting witnesses to tone down their evidence etc. could have been mere puff made in furtherance of a conspiracy to defraud unconnected with any conspiracy to defeat the course of justice. We cannot say that his particular finding necessarily included consideration and disposal of that point. 22. In my opinion the possibility of this alternative inference was left unresolved. For this reason I find myself left with no alternative but to allow the appeals against conviction on the conspiracy charge. 23. I turn now to the incitement charges. In considering these it must be assumed there was no completed agreement between these appellants to defeat the course of justice but that their intention was one to defraud Mrs. Chan. The wording in the particulars of these charges differs and this variation has prompted the question: which actual incitement forms the basis of the Crown's case against each of these appellants? There was evidence that the 2nd appellant dropped out of the scheme on being notified by Mrs. Chan that she would not pursue the plan. Then again the 1st appellant told Mrs. Chan at their meeting on the 25th May that he was excluding "middle men" in his "plot" and it was urged upon us that this reference to "middle men" included the 2nd appellant. 24. No specific objection was taken in the lower court to the form of the 2nd charges. It seems clear the prosecution were relying on those repeated endeavours each made as evidencing a continuous incitement within the period covered. So far as this ground of objection is concerned the appellants knew perfectly well what charge they had to answer and counsel for the 1st appellant consented to the admission in evidence of both the tapes and transcripts of those recordings. I do not think any injustice was occasioned to either appellant by the failure of the Crown to pin-point the exact solicitation, nor do I think that the difference in wording has any material bearing on the point that has to be decided in this appeal. Mr. Hidden contends otherwise. It is his argument that because there was no agreement formed between the appellants to defeat the course of justice then the second charge against the 1st appellant should have been one of ''attempting to conspire" and, so far as the second charge against the 2nd appellant is concerned he maintains that because that charge includes a reference in the particulars to the 1st appellant as well as to Mrs. Chan the offence should be one of inciting Mrs. Chan to attempt to conspire. 25. Mr. Hidden's reasons for this conclusion is based on his argument that for the crime of "incitement to conspire" there must in law, be a conspiracy already in existence. He contends that if there is not a pre-existing conspiracy then the offence is one of "attempting to conspire". Thus he argues that since these appellants never intended to pervert the course of justice they cannot in law be guilty of inciting Mrs. Chan to conspire to do so. 26. No authority was cited for the proposition that for a conviction for incitement to conspire there must be a pre-existing conspiracy. Such seems to run counter to general principles for in the offence of incitement it is the incitement or solicitation itself which constitutes the actus reus of the offence. Here the solicitation was that Mrs. Chan should enter into a plot with each appellant and others to pervert the course of justice. 27. What then is the mens rea of the offence? If the actus reus is the incitement or persuasion itself, as the authorities establish, is the mens rea the intention to incite or persuade or does it necessarily include an intention on the part of the inciter that the offence incited should actually be committed? In other words does an absence of intent on the part of the inciter that the ultimate offence should be committed prevent the formulation of an incitement? 28. In this case what was alleged was an incitement to conspire and conspiracy imports an agreement and not mere negotiation or a pretended agreement. 29. These are some of the matters arising in this appeal. 30. Burchell and Hunt in South African Criminal Law and Procedure Vol 1 at page 395 deal with the actus reus and mens rea of incitement. They write:
31. In speaking of mens rea the learned authors say at page 397:
And a little later on appears the following extract:
32. This statement is consonant with the view that incitement is a crime designed to nip criminal tendencies in the bud at their earliest inception. In these circumstances the mens rea would be "an intention to do an act forbidden by law on account of the essential tendency which it possesses" (see Aikenhead on Mens Rea, 1914 Edition page 152). 33. This was indeed the basis for the decision in R. v. Phillips 6 East 464 where it was held that a mere endeavour to provoke a challenge to a fight was in itself an indictable misdemeanour although no challenge was returned and no fight took place. In his judgment Lord Ellenborough C.J. said:
34. But what was the crime solicited in this case? Surely it was that Mrs. Chan should be persuaded to endeavour to conspire with each defendant to pervert the course of justice. They intended she should believe their overtures to be real and though it would have been open for the learned trial judge to have found as a fact that they were earnest in their solicitations he did not rule out the probability that this might equally have been a pretence. There was therefore no affirmative proof that they were in fact "on the job". 35. Does this pretence prevent the crime of incitement from being committed? It does seem to be singularly without merit to suggest that a defendant can escape criminal liability by stating that the overture he made, criminal in design and accepted by the incitee as such was never really intended by him in fulfillment of the commission of the criminal offence proposed but that it merely set the scene for a different criminal offence he intended to perpetrate. Whether this strange situation results or not is, in my opinion, dependent on the mens rea requisite for incitement. 36. Professor Glanville Williams in his book Criminal Law, The General Part at page 611 says:
37. In fact the reports on Wolff's case show the defendant did believe the metal to be gold. This case is cited by Lansdowne in his Outlines of South African Criminal Law 2nd Edition at page 38 as an authority for the proposition that mere belief that the conduct incited is criminal does not suffice for incitement. 38. Thus it would seem that if Mrs. Chan was never minded to pervert the course of justice but the defendants were they would be guilty of incitement but if she were so minded but the defendants were not they would not be guilty. 39. At page 612 Professor Glanville Williams states:
40. In his Textbook of Criminal Law at page 385 Professor Glanville Williams says:
41. Archbold 40th Edition para. 4091 states:
42. This is a long way from saying that the intent of the inciter that the crime incited be committed is irrelevant. 43. Roscoe on Criminal Evidence, 16th Edition page 349 says:
44. Russell on Crime, 12th Edition page 197 reads:
45. At page 200 the learned author states:
46. From these extracts it is perfectly clear that even where a crime is not committed those who unsuccessfully incite another to commit an offence are guilty at common law of incitement. It is the solicitation which is the offence. Thus soliciting a woman to kill her unborn child after it is born constitutes incitement (R. v. Shepherd [1919] 2 K.B. 125). 47. Smith & Hogan in their 4th Edition of Criminal Law at page 215 state:
48. It seems to me that the case nearest to the one to be decided in this appeal is R. v. McDonough. In delivering the judgment of the court of appeal Ashworth J. having considered the case of Shephard (1919) 14 Cr. App. R. 26 said:
49. It was never contended in that case that the appellant was practising a deception upon the person incited and that he never had any intention of dealing with stolen carcases should the opportunity have arisen. 50. In the instant case the appellants were soliciting Mrs. Chan to conspire with them when they themselves were not shown not to have been feigning an agreement and consequently were unminded to reach any conspiratorial agreement with her. 51. I am satisfied in this case that each appellant did all he could to lead Mrs. Chan to believe that if she was so minded they would agree with her to pervert the course of justice. Each knew the precise nature of his solicitation and each knowingly made the same. The facts show she did take the bait and went along and discussed the matter with them and afterwards talked over the matter with her husband on at least two occasions. But in this case the learned trial judge did not exclude the possibility of it being a confidence trick. In my view the requisite mens rea for the incitement to conspire with them and others to pervert the course of justice was not made out because it was not proved beyond peradventure that these appellants intended the ultimate commission of the offence. This was not a case of an impossible offence. Had the appellants been minded to pervert the course of justice it could have led to a conspiracy being formed: what was lacking was any proven mens rea that they were set on that course. I would allow this appeal. Representation: Mr. A. Hidden Q.C. & R. Barretto instructed by (Hampton Winter & Glynn) for Appellants. Mr. T.M. GALL, Counsel for Crown/Respondent.
----------------- Coram: Leonard, J.A., Addison & Garcia, JJ. Date of Judgment: 12th July, 1980. ----------------- JUDGMENT ----------------- Leonard, J.A.: I have had the advantage of reading in draft the judgment delivered by Addison J. and agree with his conclusion as to the conspiracy. It is on the question of the incitement charges that we part company. 2. I do not fully accept his premise that
I would prefer to say that either of two inferences was open; either (a) that they had agreed to defeat the course of justice or (b) that they had agreed to pretend to Mrs. Chan that they had agreed to defeat the course of justice and so defraud her. Each of them made representations to Mrs. Chan to the effect that they had agreed to defeat the course of justice if she agreed to make payments and so join in conspiracy. Each invited her so to do. Had she done so, had she agreed to pay them she would to their knowledge have been guilty of an offence, the offence of conspiracy if (a) above be the correct inference the offence of attempting to conspire if (b) above be the correct inference. The offence of attempting to conspire exists at common law in Hong Kong although abolished in England by section 5(7) of the Criminal Law Act 1977. There can be no doubt but that they urged her to the commission of the offence of conspiracy and equally no doubt but that if she had accepted their solicitation she would have been guilty of an offence; that of conspiracy if they intended to defeat justice and that of attempted conspiracy if they did not. Clearly they reached and sought to influence her mind to the commission of one or other of these crimes; there was an element of persuasion in their behaviour. She was not in their minds to be an innocent agent; for the very essence of their plan even if it was only to defraud was that she should think that she was joining in a plan to confound justice. 3. To put it another way, their efforts were, at face value, an incitement to conspire, their intention at best that she should be persuaded to conspire. As I see it the actus reus was the invitation to conspire, the mens rea the intention that she be moved to conspire. Both of these elements were present. 4. It matters not whether their motive was that she be swindled for motive is immaterial and need never be proved. What matters is their intent and that was proved by their words and by their whole course of action. I would therefore hold that both actus reus - the solicitation - and mens rea - the intent to encourage her to enter into a conspiracy being present the offence of incitement is proved. 5. It makes no difference that the incitement was unsuccessful (Higgins 1801 2 East 5). 6. Mr. Hidden has contended that, it not having been proved that there was in existence a conspiracy, the offence, if any, was attempt to conspire rather than incitement to conspire. I do not think this argument is valid. Inchoate crimes may take the many forms including (a) attempts to incite [as in R. v. Chelmsford Justices, Ex p. J.J. Amos(1)] where the applicant was charged with an offence contrary to section 18 of the Dangerous Drugs Act 1965 by attempting to incite Robert Amos to supply canabis and sought an order of certiorari to quash his conviction on the ground that section 18 did not create that offence. It was held that an attempt to incite was not an offence under section 18 but under the common law although section 18 made other inchoate crimes of attempt and incitement statutory offences; (b) attempting to incite H to attempt to commit an offence as in Reg. v. Ransford(2) where the count charged that the prisoner unlawfully wickedly and indecently did write and send to H a letter with intent thereby to move and incite H to attempt and endeavour feloniously and wickedly to commit an unnatural offence and by the means aforesaid did unlawfully attempt to incite H to attempt to commit the crime aforesaid. The letter in question had not been read by H. Kelly C.B. said:
I would pause to remark that in the present case there was evidence before the trial judge compelling him to the conclusion that each of the appellants intended to incite Mrs. Chan to conspire; (c) offences of incitement and attempt to conspire are abolished by section 5(7) of the Criminal Law Act 1977 but exist in Hong Kong since that Act is not law here. It is however to be noted that commenting on this question in the 3rd Edition of Criminal Law Smith and Hogan say at page 173:
In dealing with McDonough(3) where D was convicted of inciting E to receive certain carcases knowing them to have been stolen although in fact no lamb carcases were in existence the learned authors noted at page 174:
and later at page 175:
The emphases above are mine. I have inserted them to bring into relief the tendency of the learned authors, shared by Glanville Williams, to underline the similarity between the inchoate crimes. Percy Dalton Ltd.(4) was, of course, a case of attempt in which it was said:
7. To deny the similarities would be idle but I do not think they can be elevated so as to endow each inchoate crime with the necessary qualities of the others. As this court said in Po Koon Tai & Others v. The Queen(5) the extracts there quoted from D.P.P. v. Nock(6):
The evil of conspiracy is the element of combination, the evil of incitement is that of urging or tempting towards criminality. The mens rea of conspiracy is the attitude of mind resulting in agreement. The mens rea in incitement is the attitude of mind resulting in a voluntary temptation. There is no doubt that incitement may take place even when the inciter is unsuccessful in his persuasion. In the instant case each of the inciters was unsuccessful in his several efforts to influence Mrs. Chan's mind to the criminality undoubtedly urged upon her. It is true that we do not knew whether the criminality urged i.e. conspiracy, was a form of criminality in which the appellants would have indulged if their temptation of Mrs. Chan had been successful. It may well have been the case that no agreement between them or either of them was ever in the contemplation of either of the appellants and one must concede that if such was the case Mrs. Chan could not successfully have conspired with them. They would nevertheless have reached her mind and sought to influence it to the commission of a crime. At the risk of repetition, their solicitation would have been the actus reus and the intent to influence her the mens rea. 8. Some of the difficulties in connection with this subject arise from R. v. Brown & Others(7) a case in which certain drugs were advertised to procure abortions in which Darling J. in the course of his summing-up had said
Commenting on this direction the learned author of Russell on Crime 12th Edition Vol. 1 states at page 198:
9. In reaching the conclusion which I have reached I am not unmindful of the tendency to find similarities between incitement and attempt and therefore to look to mens rea in incitement as in some way encompassing the mens rea necessary for the completion of the Act incited. The judgment in Rex v. Shephard(8) is perhaps in point and may be set out in full.
10. I appreciate that my reasoning would necessitate answering in the affirmative the question which the court expressly refrained from deciding in that case. I cannot however avoid a conviction that the culpability of Shephard and the injury to society by his solicitation was equal whether or not the child in question was born alive. The incitement and therefore the crime was complete at the time the letter containing the solicitation was received. 11. I would allow this appeal insofar as the charges of conspiracy are concerned but dismiss it and uphold the several convictions on the charges of incitement. Representation: Mr. Anthony Hidden, Q.C., and Mr. Ruy Barretto (Hampton, Winter & Glynn) for 1st & 2nd appellants. Mr. T.M. Gall, Senior Crown Counsel, for Crown/respondent. (1) (1973) Crim. L.R. 437. (2) 13 Cox Crim. L. Cases 9. (3) (1962) Vol. 47 Crim. App. R. 37. (4) (1949) 33 Crim. App. R. 102. (5) Criminal Appeal No. 836/79. (6) (1978) 2 All E.R. 654 at 666 and 660. (7) (1899) 63 J.P. 790. (8) (1919) 2 K.B. 125 at 126. -------------------------------- JUDGMENT RE SENTENCE -------------------------------- 1. The appellants in this case were originally convicted of conspiracy to pervert the course of justice and of incitement to conspire. We allowed their appeals on the charge of conspiracy to pervert the course of justice but rejected their appeals on the separate convictions of incitement to conspire. The facts appear fully in the judgment of Addison, J. 2. From our judgments it is clear that the conspiracy charged was unproved. When passing sentences upon the charges of incitement to conspire the trial judge proceeded on the basis that the appellants' conduct "strains the whole fabric of the administration of justice to (and, if successful, beyond) breaking point". Having held that the conspiracy charge was unproven and that the incitement to conspire to defeat the course of justice while made out, was motivated by an intention to deceive the wife of the man who had been sentenced to fourteen years' imprisonment, the entire basis of sentence had necessarily to be re-considered. It was a particularly mean piece of deception by, in the case of the first appellant, a person occupying an office under the Crown and using that office for the purpose of deception. 3. It was pointed out to us that the first appellant's personal circumstances are particularly unfortunate. He suffers from tuberculosis and his wife from anxiety depression. He has four daughters, the second of whom is both deaf and dumb. He supports a mother of 75. His career is irretrievably ruined by this attempted swindle. 4. The second appellant's behaviour in connection with the swindle was less culpable than that of the first appellant. 5. Our attention was drawn to a number of cases relating to actual attempts to pervert the course of justice and to one case in particular where a barrister had been sentenced to three years' imprisonment on five separate charges of so attempting, actively inciting others to do so. These cases although they show that the sentences passed originally were severe by comparison are inappropriate to our considerations. This case which must be treated as a particularly mean piece of deception carried out with the intention of swindling an unfortunate and highly vulnerable woman of a large sum of money. The attempt was, of course, unsuccessful as the woman in question went almost immediately to consult the Independent Commission Against Corruption in respect of it. 6. Taking all these matters into consideration we decided that the appeal against a sentence of four years' imprisonment imposed upon the first appellant on the charge of incitement was excessive. We allowed his appeal and reduced his sentence to one of fifteen months' imprisonment. Likewise we allowed the appeal of the second appellant on a similar conviction and reduced his sentence to one of nine months' imprisonment he playing a lesser role and not being in a position of trust. Representation:
Coram: Leonard, J.A., Addison & Garcia, JJ. Date of Judgment: 12th July, 1980 ----------------- JUDGMENT ----------------- Garcia, J.:- I have had the advantage of reading in draft both the judgments of the learned President and Addison, J. and I respectfully agree with them that the 1st charges of conspiracy against both appellants should be allowed for the reasons so cogently expressed by Addison, J. 2. So far as the 2nd charges of incitement against the appellants are concerned, I concur with what has been said by the learned President and I would add the observation that even if it is assumed from the facts of the case that the appellants' only intention was to seek to defraud Mrs. Chan, nevertheless such an intention remained hidden in the minds of the appellants themselves. What has, however, been revealed and communicated to her is the expressed and overt intention of both appellants that she should join them in a conspiracy to pervert the course of justice. I am inclined to the view expressed by the learned President that it is immaterial that the motive of the appellants was to swindle Mrs. Chan, and what is really relevant is the intention which they had communicated to Mrs. Chan, that is, that she should join them in a conspiracy to pervert the course of justice. That, in my view, forms the mens rea of the offence of incitement against the appellants. 3. There appears to be no authority on this, although some assistance might be derived from the following statement taken from the judgment of Lord Wark in Her Majesty's Advocate v. Tannahill and Neilson (1943) J.C.153:-
Further assistance may be obtained, I submit, from the passages of the judgment of Holmes, J.A. in The State v. Nkosiyana and the commentary therein by the learned authors of South African Criminal Law and Procedure, Vol. 1, already cited by Addison, J. in his judgment. 4. In this case there is evidence to indicate that Mrs. Chan acted on what had been said to her by both the appellants in that she discussed the matter with her husband on at least two occasions and also with her legal advisers. The expressed intention of the appellants to Mrs. Chan did in fact influence her mind to that extent. I would also dismiss the appeals of the appellants in respect of the 2nd charges. Representation: Mr. Anthony Hidden, Q.C., and Mr. Ruy Barretto (Hampton, Winter & Glynn) for both appellants Mr. T.M. Gall, Senior Crown Counsel for Crown/respondent |
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