HKSAR v. Tsui King Sing

HCMA1068/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1068 OF 2007

(ON APPEAL FROM KTCC 862 OF 2007)

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Before : Hon McMahon J in Court

Dates of Hearing : 28 February 2008

Date of Judgment : 13 March 2008

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J U D G M E N T

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1.The appellant was convicted after trial in Kwun Tong Magistracy of an offence of Doing an Act Tending and Intended to Pervert the Course of Public Justice, contrary to common law.  He was sentenced to 200 hours of community service.  He now appeals that conviction.

2.The prosecution case was that the appellant was a partner in a business which operated a coffee shop in Mongkok.  On 9 August 2005 those premises were burgled by a female ex-employee who was subsequently arrested by police and made admissions under caution. 

3.Following that, there were meetings between the father (PW1) of the arrested person and the appellant.  The last of those meetings was monitored and recorded by the icac with the assistance of PW1.  The transcript of the recording of that meeting formed the basis of the prosecution case at trial. 

4.At the time of this final meeting, PW1’s daughter, the arrested person, had not yet been dealt with by the court, but subsequently to the meeting she was convicted on her own plea in the District Court of the burglary offence.

5.It is true to say that the prosecution case depended wholly on what was said by the appellant to PW1 at the final, recorded, meeting.  As with most such recordings precisely what was meant by the words spoken by those present was not always clear.  But it was the prosecution case that the appellant had offered to either “drop” the case against the arrested daughter or, if that was not possible, to not attend court as a witness.  He requested a sum of $80,000 (to be paid in two instalments of $40,000) for doing so.

6.The grounds of appeal advanced by Ms Draycott for the appellant may be reduced to the following propositions :

Grounds 1, 2, 4 and 5 — incorrect application of the law

7.The leading case is Murray (supra).  That case involved an appellant tampering with a blood specimen taken from him when arrested for drink driving.  He sent the favourably altered specimen to an analyst in an apparent attempt to bolster his defence in the proceedings against him.  His actions were discovered and he was convicted of the common law offence of attempting to pervert the course of justice.  On appeal he argued that his acts were not in law capable of having a tendency to pervert the course of justice.  The submission being that the acts done by the appellant did not go far enough inasmuch as after sending the tampered sample to the analyst the appellant had done nothing more, the analyst then taking it upon himself to communicate with the appellant’s solicitor about the fact the sample had been tampered with and the solicitor informing the police.

8.The court rejected that argument, saying :

“… that in order to establish a charge of attempting to pervert the course of justice there must be evidence that the applicant had done enough for there to be a risk, without further action by him, that injustice would result; and in the present case there plainly was evidence of such a tendency or possibility, because once the analyst—whether he was a private or a public analyst—analysed the appellant’s blood sample and found that it contained a minimum quantity of alcohol, it was a practical certainty, let alone a possibility, that that information would be forwarded to the solicitor or to the prosecuting authority or the police; it followed that the appellant had been rightly convicted and the appeal would be dismissed.”  (emphasis added)

and, obiter, expressed the view that in any event by tampering with a sample of blood which was subject to “a course of justice mapped out by the Road Safety Act 1967 (where) the precise steps to be taken are there laid down …. then anything which the accused does thereafter which interferes with and upsets the due workings out of the statutory course of action is within the scope of the offence.”

9.Central to the court’s judgment in Murray was this proposition (at p. 62) :

“… what the learned judge in the present case had to decide was, whether there was evidence which was fit to go before the jury, that first of all the appellant had the intention to pervert the course of justice (which plainly he did), but much more importantly, whether there was evidence that what he did had a tendency to have that effect.  In the view of this Court, there must be evidence that the man has done enough for there to be a risk, without further action by him, that injustice will result.  In other words, there must be a possibility that what he has done “without more” might lead to injustice.  …”  (emphasis added)

10.It is that qualification which Ms Draycott relies upon.  She says that Murray has been good law in Hong Kong and England for many years and should be followed.

11.Very properly, however, she brought to my attention R. v. Bassi [1985] Crim. L.R. 671.  That was a case where for all practical purposes the brief facts reported seem on all fours with the present except for the underlying offence involving the driver of the motor vehicle involved in an accident having driven whilst disqualified.  The appellant was the driver of the other vehicle in the accident and contacted the wife of the disqualified driver offering to not give evidence against the husband in return for a cash payment.  From the report it appears the appellant was convicted on those facts without any further act having been undertaken by him.  The appeal was dismissed.  The commentary to the case by Professor J.C. Smith proceeds on the assumption that the prosecution was brought on the basis of a mere offer to pervert the course of justice having been made by the appellant and on the assumption also that Murray is good law.  That commentary is critical of the judgment in Bassi and points out that the decision was in conflict with that in Murray as further acts were required of the appellant, there being a difference on the facts in Bassi between actually absenting oneself as a witness and merely offering to do so.  The former in terms of the principle in Murray would, without more, have a tendency to interfere with the course of justice whereas the latter, without the doing of something further, would not.  It is precisely that point which was before the magistrate in the present case. 

12.There is no doubt that there are logical difficulties with the Murray principle.  The primary one is this : If the transaction we are concerned with in the present case had resulted in the payment by PW1 of the $80,000, then he would have done, in terms of Murray, all that was required of him and, putting aside the fact that he was acting as an agent of the ICAC, the present offence would have been made out against him as there was “no more” for him to do.

13.However on the Murray principle, even if the appellant had accepted that money and promised to “drop” the prosecution or to fail to attend as a witness, on those same facts which incriminated PW1, the offence would not be made out against the appellant.  That is because “more” would remain to be done by the appellant, that is, his either going to the police and attempting to “drop” the case or eventually failing to give evidence.  In other words though they participated equally in the same transaction, one participant would be culpable and the other not.

14.Other arbitrary results can be imagined.  For example, on the facts in Murray, the analyst to whom the blood sample was sent may have returned the blood sample to the appellant rather than to the appellant’s solicitor.  Whether he would do so may have been unknown to the appellant at the time he provided that sample.  In those circumstances, on the Murray test there would then remain other matters to be done by the appellant in terms of providing the sample to the authorities or relying upon it in some way for the purpose of the proceedings.  In other words, depending on the procedure adopted by the analyst, there would or would not remain some act to be done by the appellant before the offence was made out.  That would be unclear at the time of the appellant’s doing the act. 

15.It is distinctly unsatisfactory that a principle of law should be prone to an inconsistent or arbitrary result of this nature.  However Ms Draycott points out that in HKSAR v. Law Kam Fai [2006] 2 HKLRD 879, at 891, the Court of Appeal, although dealing with a conspiracy to pervert the course of justice, had approved the Murray test in the following passage of its judgment :

“      … A tendency to pervert does not mean that the act will actually pervert the course of justice but it must be shown that the accused’s act or acts must give rise to the possibility that, without more, they may lead to injustice : - see R v Murray (1982) 75 Cr App R 58.  …”  (emphasis added)

That approval of the Murray principle, Ms Draycott argues, emphasises that it is still good law in Hong Kong.

16.In Law Kam Fai, the court was dealing with applicants who had advised villagers at a public meeting to lie in a certain way to police about the removal of boulders from the Tung Chung River.  Eventually such lies were in fact told to the police investigating the incident.  In other words, the appellants in Law Kam Fai were in the position where they were charged with a conspiracy to commit the substantive offence in circumstances where in any event the substantive offence had been committed.

17.In the circumstances of the case the single reference by the court to Murray, in my view, was dicta and not binding.  The question as to whether or not the appellants had done all that was required of them not being a matter the court had to address. 

18.For the reasons earlier expressed, there seems little logical basis for the qualification referred to in Murray though there may well be policy considerations which support such a rule, the most obvious being a desire to prevent acts which are too inchoate or speculative being the basis of a criminal conviction.  I think, however, the answer to that concern is that it is a question of fact as to whether such a tendency exists or not.  If there was any doubt about that then the defendant would get the benefit. 

19.In my judgment, the approach the court took in Bassi is preferable to that in Murray.  The question should simply be whether, as a matter of fact, the act of the defendant had, at the time of the act, a tendency to pervert the course of justice.  If the answer to that question of fact is positive then that element of the offence is made out without it being necessary to prove no other acts or steps were required in the future of the defendant.  Accordingly the magistrate’s approach was correct.  This ground, while arguable, fails.

Grounds 3 and 7 — whether an offer was made by the appellant

20.Ms Draycott complains in this regard that the monitored conversation between PW1 and the appellant did not contain evidence of any offer of the sort alleged by the prosecution having being made by the appellant.

21.This question was entirely one of fact.  In my view, having read the transcript of that conversation, the magistrate’s conclusion arrived at, no doubt after he had considered the whole of that conversation and its context, was correct.  The appellant was quite obviously suggesting to PW1 that he would do one of two things, that is, have the case against PW1’s daughter “dropped” if possible or, alternatively, not give evidence.  There was nothing in this ground.

Grounds 6 and 8 — impossibility

22.The argument supporting these grounds was that the acts the appellant had offered to do in return for $80,000 were firstly, to see if he could get the case against PW1’s daughter dropped and, alternatively, to not give evidence if the case proceeded.  Ms Draycott asserts that neither of those matters were able to have any effect on the prosecution of the burglary case.

23.So far as the appellant seeing whether the case could be “dropped” was concerned, PW1’s daughter had been arrested, interviewed under caution, apparently charged and given the time period involved no doubt had been brought before a magistrate by the time of the conversation between PW1 and the appellant.  The case was, on the face it, likely beyond any stage, if such a stage ever existed, of the appellant being able to prevent the prosecution proceeding.  Equally, Ms Draycott says, the appellant’s offer to not give evidence was entirely meaningless as he was not (and was never intended to be) a witness in the proceedings.

24.In my view, there is merit in this argument.  The question as to whether an act has a tendency to pervert the course of justice is a question of fact.  To pervert the course of justice means to “deflect, frustrate, impair or hinder” the ability of a court to administer justice : HKSAR v. Wong Shing Yim & Others [2003] 3 HKLRD 1046, at 1059 per Ma CJHC.  

25.The magistrate’s finding in this regard and the basis of it was set out in his Statement of Findings as follows :

“22. Although the defendant was not the complainant and he had not given any statement in the burglary case, he was, nevertheless, a co-owner of Coffee Mark as opposed to someone who had nothing to do with the case.  The defendant’s view that the charge should be dropped was one factor that the prosecuting authority would take into account. Other factors would include the evidence available and the background of Fan.  Despite the fact that Fan’s act of stealing was captured by a CCTV, it could not be said that a request by the defendant to the police that the charge could be dropped did not have a tendency to pervert the course of public justice.”  (emphasis added)

26.Of course it was for the prosecution to prove the appellant’s offer to “drop” the prosecution had a tendency to pervert the course of justice, and it seems to me there was insufficient evidence before the magistrate so as to allow him to conclude beyond reasonable doubt that it was possible for the appellant to pervert the course of justice in the way the appellant had offered. 

27.There was no evidence before the court, as I understand it, as to whether the police would or could take such a request from the victim of an offence, such as the burglary of a coffee shop, into account in deciding whether to proceed with the case.  It may be in many cases an act by a defendant will manifestly have a tendency to pervert the course of justice and little or no evidence will be required to establish that fact, but in the circumstances of this case, such evidence should have been called by the prosecution.  Without such evidence it is difficult to see how the appellant’s offer, regardless of his quite obvious intent, could have been found to have the required “clear or manifest tendency” of perverting the course of justice : Wong Shing Yim and R. v. Rogerson [1992] 174 CLR 268.

28.It seems to me that the magistrate’s finding, set out above, was really based on his own understanding of how police may react to a request to “drop” a case and not on the evidence before him.  Equally there was no evidence as to the possibility of the appellant becoming a witness in the trial of PW1’s daughter.  Factually, it seems to me that, on the evidence, there was some doubt as to whether in the circumstances of this case it had been proven the appellant’s offer had the necessary tendency to pervert the course of justice. 

29.On that basis this ground succeeds and the appeal is allowed.  The appellant’s conviction is quashed and his sentence set aside.

Mr David Leung, SGC of Department of Justice, for HKSAR

Ms Charlotte Draycott, instructed by Messrs Ivan Tang & Co., for the Appellant