HKSAR v. Kanjanapas Chong Kwong Derek and Others
Read the full judgment text of CACC 248/2006 on BabelCite. This Court of Appeal judgment was delivered on 12 February 2009.
1. Tang VP will give the first judgment.
Cites 12 cases
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CACC 248/2006 CACC 248/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 248 OF 2006 (ON APPEAL FROM DCCC NO. 298 OF 2005) ---------------------- BETWEEN
---------------------- CACC 140/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 140 OF 2007 (ON APPEAL FROM DCCC NO. 298 OF 2005) ---------------------- BETWEEN
---------------------- CAAR 8/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL APPLICATION FOR REVIEW NO. 8 OF 2006 (ON APPEAL FROM DCCC NO. 298 OF 2005) ---------------------- BETWEEN
---------------------- Before: Hon Ma CJHC, Tang VP & Wright J in Court Date of Hearing: 2-4, 7-10 July 2008 Date of Handing Down Judgment: 12 February 2009 ---------------------- J U D G M E N T ---------------------- TABLE OF CONTENTS
Hon Ma CJHC 1.Tang VP will give the first judgment. Hon Tang VP : Introduction 2.The events which led to these applications for leave to appeal took place between Friday, 9 July 2004 and Friday, 16 July 2004. 3.The 1st applicant (“Derek”) was the chairman of Semtech International Holdings Limited (“Semtech”). He was the 1st defendant at trial. Miss Wong Pui-sze, Becky (“Becky”) was his secretary. She was PW1 at trial. 4.On 9 July 2004, 9 persons including Derek and Becky were arrested by the ICAC. William Lau, the manager and controller of Semtech was also arrested. 5.The 2nd applicant (“Mandy”), the 2nd defendant at trial, was the lover of Derek, and Becky was like a sister to her. Mandy was a shareholder and director of Ever Brilliant Consultants Ltd (“Ever Brilliant”), which operated a beauty salon called Eden. The capital was provided by Derek. Becky was given 30% of the share capital in Ever Brilliant. 6.The 3rd applicant Andrew Lam, (“Lam”), the 3rd defendant at trial, is a solicitor and a partner of Messrs Andrew Lam & Company. He is an experienced criminal lawyer. Lam was instructed on 13 July 2004 by Derek to act for him in the Semtech investigation. 7.The 4th applicant (“Egan”), the 4th defendant at trial, is an experienced barrister specialising in criminal work. He was instructed by Messrs Massie & Clement, who acted as solicitors for Mandy in her attempt to gain access to Becky which culminated in an application by Mandy for a writ of habeas corpus for Becky. The charges 8.The applicants were charged with the following offences:
The trial 9.The trial had lasted 55 days before HH Judge Fung CDJ (as he then was). Complex issues of law and fact were involved. The Reasons for Verdict (“Reasons”) is 173 pages long. 10.The 1st to 3rd applicants were convicted of the 1st charge. Egan was acquitted of that charge. 11.Mandy was the only applicant in the 2nd charge. That charge was concerned with her affirmation which was filed on 16 July 2004 in support of the habeas corpus proceedings in relation to Becky (HCAL 89/2004). But because the affirmation “did not include an oath of (the interpreter) that he had interpreted the oath or affirmation to (Mandy)”, she was convicted of attempted perjury. As the learned judge correctly pointed out:
12.Both the 3rd and 4th applicants were acquitted of the 3rd charge. 13.Egan, the only applicant in respect of the 4th and 5th charges, was convicted. 14.Derek was sentenced to 3 years’ imprisonment for the 1st charge. Mandy was sentenced to 2½ years’ imprisonment for the 1st charge and 1 year for the 2nd charge, the sentences to run concurrently. Lam was sentenced to 4 years’ imprisonment. Egan was sentenced to 2½ years’ imprisonment for each of 4th and 5th charges, the sentences to run concurrently. 15.All the applicants have been given bail pending appeal. Derek has absconded. The 2nd to 4th applicants appeared by counsel before us. They applied for leave to appeal against both conviction and sentence. On 14 May 2008, Ma CJHC directed that the applications in relation to sentence should await the outcome of the applications relating to conviction. In relation to Derek and Lam, the Secretary for Justice has applied to review their sentences under section 81A of the Criminal Procedure Ordinance, Cap. 221 (“CPO”) (CAAR 8/2006). Background 16.The background facts have been carefully stated by the learned judge. My narrative is based on them. Saturday, 10 July 2004 17.After Derek was arrested by the ICAC on 9 July 2004, at about 8.30 am on 10 July 2004, his wife contacted Frankie Chung (PW2), a legal executive in the employ of Messrs C K Mok & Company, solicitors. As a result Frankie Chung went to the ICAC office at about 9.30 am together with a barrister (not Egan). They were told to wait. It was about 6 pm that day when they were able to see Derek. They returned to the ICAC the next morning and attended a video recording interview with Derek. 18.Becky was given bail at 10.38 pm on 10 July 2004. Prior to her being admitted to bail, she had given 2 non-prejudicial statements (“NPS”). The first from 00.25 am to 4.10 am and the second from 10.56 am to 10.30 pm. The second NPS contained matters incriminating Derek. At 10.38 pm, Becky was given bail until 5 pm the following day on her own recognizance. 19.The learned judge recorded that Becky had signed a note dated 10 July 2004 stating that:
20.On the night of 10 July 2004, Becky stayed at her home, accompanied by 2 female ICAC officers. Becky’s mobile phone had been taken from her when she was arrested but it was returned to her when she was released on bail. When she turned it on, Dale Ko, an ICAC officer, saw a list of missed calls appearing and Becky told him that some of the calls were from Mandy. Sunday, 11 July 2004 21.Between 1.35 pm and 4.15 pm, Becky went to the ICAC to discuss the Witness Protection Programme (“WPP”) for the first time. At 4.55 pm, she was given bail to 16 July 2004. 22.At about 1.15 pm, there was a telephone conversation between Becky and Mandy, which had been monitored by the ICAC. The learned judge found that during this conversation, Becky said to Mandy that “she was safe and sound” ‘平安無事’ (literally meaning ‘safe and no incident’).” 23.At 6.15 pm, Becky and the ICAC officers arrived at an ICAC safe house. ICAC officers gave Becky another mobile phone SIM Card (“ICAC SIM card”). She was advised to use the ICAC SIM card to contact her family and friends, and not to use her own SIM card to avoid contact with people involved in the case. Becky inserted the ICAC SIM card into her mobile phone and called her family members. Although Becky’s own SIM card was monitored by the ICAC, the ICAC SIM card was not monitored. Sometime between 6.15 pm and 7.29 pm on 11 July 2004, Becky forwarded incoming calls to her own SIM card to the ICAC SIM card. 24.At 7.29 pm, Becky’s phone rang and she saw Derek’s name on the caller display. She said ICAC officers also saw the caller display and she was embarrassed and she switched off the phone without answering because the ICAC officers had advised her not to speak to people involved in the case. 25.Becky then inserted her own SIM card back into the phone in order to cancel the call-forwarding to the ICAC SIM card. Becky said that she had voluntarily surrendered her own SIM card to the ICAC officers later in the night of 11 July 2004. She said she did so because she was embarrassed when the ICAC saw Derek’s name on the caller display. 26.After Derek was released on bail, between 4.00 pm and 8 pm on 11 July 2004, he spoke to Frankie Chung on the telephone. He told Frankie Chung that two of his employees namely William Lau and Becky had been arrested by ICAC and he was very worried about them. He asked Frankie Chung to see them. Frankie Chung said that he would ask another solicitor, Peter Lai to go and see William Lau and Becky. The ICAC had standing instructions regarding visits by lawyers claiming to represent a person in ICAC custody which required ICAC officers first to inform the person that a lawyer was present and then ask whether that person wanted to see the lawyer. Peter Lai was able to see William Lau but not Becky. In fact, Becky was not told by the ICAC officers that Peter Lai was there to see her because the ICAC officers did not think they were obliged so to inform her as the standing instructions only applied to detained persons. Presumably, Peter Lai was able to see William Lau because he was a detained person and the standing instructions applied to him. Monday, 12 July 2004 27.Between 7 am and 8 am on 12 July 2004, Becky went back to the Semtech office to collect her belongings. When doing so, she took a spare stored valued SIM card (“Semtech SIM card”) without telling the ICAC officers who were waiting for her at the lift lobby. She said she took the Semtech SIM card because she wanted to call Mandy to find out about Derek and Mandy. She was concerned about Mandy as a friend. She felt the ICAC SIM card number might be tapped, so she wanted to use the Semtech SIM card instead. She said she did not tell the ICAC officers about the Semtech SIM card because it never crossed her mind to do so. 28.At about 2.30 pm on 12 July 2004, Derek went to Frankie Chung’s office. According to Frankie Chung, at that meeting he told Derek that as Becky had been with the ICAC for 48 hours, it was possible that Becky was in the process of becoming a prosecution witness. According to Frankie Chung, Derek said he needed to look for a “famous barrister” to defend him. Derek mentioned Mr Lawrence Lok, SC. He even mentioned Lam but Frankie Chung told him that Lam was not a barrister and C K Mok & Company could not therefore engagehim. 29.William Lau was released in the afternoon of 12 July 2004. 30.At about 4.30 pm on 12 July 2004, William Lau went to Frankie Chung’s office, Derek was there. According to Frankie Chung, Derek told him that:
31.In the evening of 12 July 2004 whilst at the ICAC safe house, Becky went to the toilet to call Mandy “without being tapped or overheard”. Although there were a total of 9 calls between 10.31 am and 10.51 am, there were only 2 main conversations, the first of which lasted 344 seconds and began at 10:40:46. 32.This is what the learned judge said about these two conversations:
33.On the same day, at 4.20 pm, there was an SMS message to the Semtech SIM card from Mandy. The message was:
It is significant that at this time, Derek was on the phone with Mandy. The clear inference is that he was instrumental in the message being sent. 34.However, Becky did not see this message until the midnight of 13 July 2004. Tuesday, 13 July 2004 35.Earlier, on 12 July 2004, a Witness Security Panel (“WSP”) meeting had been convened to discuss the induction of Becky into the WPP. When dealing with the risk assessment, the minutes recorded:
36.At 2.25 pm on 13 July 2004, Becky went to the ICAC headquarters and signed the Memorandum of Understanding (“MOU”) for the WPP. 37.On the same day, Derek and William Lau visited Lam at his office at about 4 pm. Presumably, it was during that meeting that Lam was retained by Derek to act for him in the Semtech investigation. Mandy went to Lam’s office at 5.39 pm (according to the lift CCTV) and stayed there until they all went to the offices of Messrs Massie & Clement at the Chekiang First Bank Building. The lift CCTV showed that they arrived there at 5.59 pm. Mr Richard Clement, PW5 (“Clement”), a partner of Messrs Massie & Clement, said that he saw the 1st to 3rd applicants and William Lau at about 6 pm. He said Lam had referred Mandy to his firm as a client because of a potential conflict of interest. According to the lift CCTV footage, Derek, Lam and William Lau left Messrs Massie & Clement’s office at 6.08 pm. 38.Clement said his partner Mr John Massie (“Massie”) had spoken to him earlier and left him a brief note of the case. Clement’s evidence was that Massie told him that the instructions had come from Lam. Massie was due to go on a month’s leave and could not take up the case. The CCTV footage showed that Massie went down the lift of his office at 6.07 pm. The note was produced at trial, but Massie did not give evidence. There was no evidence that Massie saw Derek, Mandy or Lam on 13 July 2004. I will proceed on the basis that Massie had been contacted by Lam on the telephone. According to the learned judge:
39.The note also included the statement “write to ICAC” so presumably it was Massie’s understanding that their firm was to write to the ICAC. Such instructions presumably were received between about 4 pm and 6 pm on 13 July 2004. 40.Mandy was interviewed by Clement and Raymond Lam (PW6), a trainee solicitor, who acted as interpreter between Mandy and Clement. According to the learned judge:
41.Clement then opened a file for Mandy in the matter of Becky. He also drafted a letter to be sent to the ICAC. That letter was moderate in tone. After stating that Messrs Massie & Clement had been approached by Mandy, “a friend of (Becky)”, it said:
42.Clement then left for home. Whilst he was on the MTR, he received a call from Egan from the Foreign Correspondents’ Club (“FCC”). This is what the learned judge said:
43.Then, at about 7.45 pm, Raymond Lam and Egan arrived at the ICAC reception. Egan asked to see Becky. Daphne Lim and Matchy Mak (PW30), Assistant Investigator, went to reception. They overheard Egan’s speaking in his mobile phone:
After hanging up, Egan said:
44.Daphne Lim then rang one of the officers who was accompanying Becky at the ICAC safe house and asked him whether Becky had requested to see a lawyer and she was told that:
45.What happened next is that Egan then wrote a letter of complaint to the Head of Operations of the ICAC, complaining that he had been denied access to Becky. In this letter (“Egan’s complaint letter”) Egan said:
Egan’s evidence was that he used the expression “protective custody” sarcastically. 46.Egan then went to the Central Police Station and made a report of false imprisonment. That is highly unusual but might be explained by Egan’s deep mistrust of the ICAC. 47.As noted earlier in para. 34 above, Becky saw the SMS message to call “Chung lawyer” at about midnight on 13 July 2004. She then called Frankie Chung. This is what the learned judge said about that conversation:
Wednesday, 14 July 2004 48.Shortly after his conversation with Becky, Frankie Chung told Derek of his conversation with Becky. He told Derek that he had told Becky that he would go to see her at the ICAC provided that she gave him a call. Frankie Chung and Derek met sometime after 1 am. This is the learned judge’s summary of the evidence:
49.On 14 July 2004, the Sing Tao Daily published a report on the Semtech case with the subheading “Barrister alleges the ICAC of unlawful detention”. 50.At 8.45 am on 14 July 2004, Daphne Lim and Matchy Mak arrived at the safe house. Daphne Lim asked Becky whether she wanted to join the WPP and Becky said yes. 51.According to the learned judge:
52.At about 9.30 am on 14 July 2004, Frankie Chung after speaking to Derek on the phone, called Egan. He did not tell Egan that Derek had just spoken to him. However, he told Egan that Becky had contacted him and that she wanted to get away from the ICAC. He asked Egan to go to see Becky at the ICAC. They then made an appointment to meet outside the ICAC at 11 am. 53.Between 9.30 am and 10 am, Clement returned to his office. He was shown a copy of Egan’s complaint letter by Raymond Lam. He then received a call from Egan who told him that he had instructions from C K Mok & Company to go to the ICAC. Egan told him that Frankie Chung had spoken to Becky the night before and that Becky wanted to see Frankie Chung. According to Clement, Egan also said that with his going to the ICAC:
If an application had to be made to the court, he asked whether Messrs Massie & Clement would still have the instructions to move ahead. Clement said that Egan did not specify the application but he assumed that it was habeas corpus. He told Egan that on the basis of the conversation with Mandy the night before, the instructions were (1) to see Becky at the ICAC, and (2) if that did not work, to get her released from the ICAC. The learned judge said:
54.Egan and Frankie Chung’s visit to the ICAC on 14 July 2004 met with no success. They were told by Patrick Ho that Becky was not at the ICAC and that Egan could do whatever he liked and it was entirely up to him:
According to Ryan:
Ryan told Egan:
The meeting between Ryan and Rebecca Lai and other ICAC officers lasted about 1½ to 2 hours. He was told that Becky was included in the WPP. 55.Some time after 12 pm on 14 July 2004, Dale Ko learnt from Becky that she had contacted a lawyer called Chung. He was then instructed to take a statement from Becky by Patrick Ho who mentioned that there might be a habeas corpus application. According to the learned judge:
56.Between 2.15 pm and 4.30 pm on 14 July 2004, Dale Ko took a statement from Becky on the habeas corpus matter. The learned judge said:
57.Meanwhile, at lunchtime on 14 July 2004, Frankie Chung saw Clement in the offices of Messrs Massie & Clement. Frankie Chung told Clement that he had received a phone call from Becky, whom he said was previously known to him. Clement prepared an affirmation of Frankie Chung and settled the other papers for an application for the writ of habeas corpus. He did so without any reference to Egan. There is no evidence that Lam was aware of the contents of Frankie Chung’s affirmation. 58.In the afternoon on 14 July 2004, Egan called Ryan after Ryan’s conference with Rebecca Li and Ricky Chu:
59.At about 4.30 pm, Frankie Chung affirmed his affirmation at the High Court (“Chung’s affirmation”). This is what he said:
60.On 14 July 2004, Becky was released from all conditions of bail. She was eventually given an immunity to give evidence in the Semtech trial. Habeas Corpus Proceedings Wednesday, 14 July 2004 61.The ex parte application for a writ of habeas corpus was supported by Chung’s affirmation. Yam J heard the ex parte application at 5.30 pm. Egan appeared for Becky instructed by Messrs Massie & Clement. The hearing was open to the public. This is the learned judge’s summary of the proceedings before Yam J:
62.Yam J adjourned the hearing to 10 am on 15 July 2004 for an inter partes hearing. Thursday, 15 July 2004 Yam J 63.On 15 July 2004, the inter partes hearing commenced at 10.23 am. Egan appeared for Becky and Ryan for the ICAC. The hearing was in camera on Ryan’s application. Ryan informed the court that Becky had agreed to be a witness in a very serious ICAC investigation and that she was included in the WPP under the Witness Protection Ordinance, Cap. 564 (“WPO”). Yam J was shown Becky’s statement of 14 July 2004, which said that she had not been unlawfully detained. At the conclusion of the hearing Yam J issued a writ of habeas corpus addressed to the Commissioner of ICAC requiring him to bring Becky to court at 3.30 pm on the same day. Yam J also made what he described as a strictly tight-lipped order. Yam J said:
64.Egan gave the undertaking. This is the learned judge’s summary of the hearing before Yam J:
65.I question the need to disclose that Becky was in the WPP in the habeas corpus proceedings. The issue in the habeas corpus proceedings was whether Becky was detained against her will. That could be resolved without disclosing the fact that she was in the WPP. It is unfortunate that the disclosure was made. Such a disclosure is potentially damaging to Becky. It might also prejudice the defence by the implicit (though not proven) imputation against the applicants or some of them that they were people from whom protection was needed. Court of Appeal 66.The Commissioner appealed Yam J’s order and it was heard by the Court of Appeal (Stock JA and Yuen JA) at 2.37 pm. The hearing was ordered to be heard in camera at 2.38 pm. During the hearing, the court was again told that Becky has been included in the WPP and that she had signed the MOU under the WPO. 67.The learned judge said:
The court stayed the matter until 4.30 pm and ordered that the matter be heard by Hartmann J, who was in charge of the Constitutional and Administrative Law List. Hartmann J 68.The hearing before Hartmann J began at 4.38 pm. By that time, the Commissioner had made a certificate in return by Yang Yang-tak, Eric, an officer of the ICAC. According to the learned judge:
The hearing was adjourned at 5.34 pm. It resumed at 5.56 pm and then finally adjourned at 6.10 pm to 3 pm the next day for a substantive hearing. It was also ordered that any affidavit or affirmation to be filed had to be filed by 12 noon on 16 July 2004. As a consequence, Mandy’s affirmation, the subject of the perjury charge, was filed. Friday, 16 July 2004 69.On 16 July 2004, the South China Morning Post (“SCMP”) published an article under the by-line of Magdalene Chow and Sara Bradford which contained this sentence:
70.At 2.37 pm, at the request of the Court of Appeal, the parties appeared before the court. Stock JA drew attention to the SCMP article, in particular, the statement quoted above. The court informed the parties that it would send the papers to the Secretary for Justice so that inquiries could be made as to whether an offence had been committed under section 17 of the WPO. That was duly done. 71.On the same day, at the end of the substantive hearing, Hartmann J discharged the writ of habeas corpus. The 1st charge (conspiracy to pervert the course of justice) 72.The 1st charge alleged that the four applicants conspired together with Frankie Chung:
the four particulars (a) to (d). (See para. 8 above). Each of the particulars contained an allegation of falsity or sham. 73.Ms Clare Montgomery, QC, appearing for Lam, submitted that the words “a series of acts” referred to the words following “namely”, whereas Mr Martin Wilson, QC, appearing for the respondent, submitted that the “series of acts” referred to particulars (a) to (d). It is clear to me that the “series of acts” referred to the particulars (a) to (d). 74.It is relevant to note that the charge alleged that it was the doing of these series of acts or one or more of them (the series of acts) which had the tendency to pervert the course of public justice. So the charge required proof that (i) there was an agreement to do the series of acts, (ii) that the series of act had the tendency to pervert the course of justice in the way alleged and (iii) the applicants intended so to pervert the course of justice. Absent the agreement to do the series of acts, each with their elements of sham or falsity, the charge is not made out. I should also mention that the Reasons concentrated on particulars (b) and (c), which concerned the habeas corpus proceedings. No specific finding was made in relation to particulars (a) and (d) and I will not deal with them specifically in this judgment. No property in a witness 75.The alleged object of the conspiracy charge was to gain access to Becky.
Becky was at that time a potential witness in the Semtech investigation. The law regarding access to a potential witness is relevant. 76.There is no property in a witness. The Hong Kong Solicitors’ Guide to Professional Conduct, Vol. 1 (2nd ed.), para. 10.12 at p. 107 states:
The position in Hong Kong is the same as in England. 77.As Lord Denning MR famously said in Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd. [1979] 1 WLR 1380:
78.The rigour of this principle can be seen from later cases. 79.In R v Terry Higgins [2003] EWCA Crim 2943, the court was concerned with the complaint made by the convicted appellant that the judge should have stayed the prosecution because there was bad faith on the part of the police in interviewing four potential defence witnesses in the way they did, and/or because their conduct in that respect was unfairly prejudicial to the appellant’s defence and as such violated his right to a fair trial under Article 6(3)(b) of the European Convention on Human Rights. Dismissing the appeal, Auld LJ in the judgment of the court said:
80.R v Brett Evans and Jonathan Caffrey [2001] EWCA Crim 730, is also a decision of the English Court of Appeal. It concerned the conviction on the third and final trial of two persons for murder and causing grievous bodily harm on a person on 6 November 1994. At the first trial in February 1999, the jury were unable to agree upon any verdicts and a retrial was ordered. A second trial took place in June 1999 and the jury were discharged at a point towards the end of the prosecution case when it became clear that the prosecution were unable to call certain witnesses whose evidence had been opened to the jury. The third and final trial took place between 8 November 1999 and 15 December 1999. 81.One aspect of Evans’ defence was that a number of independent witnesses, neighbours and acquaintances of the deceased, had made statements to the police to the effect that they had seen the deceased alive after 6 November 1994, or had heard his voice or seen or heard activity at his flat that tended to show that he was alive after 6 November 1994. 82.As Waller LJ described it in the judgment of the court:
83.Waller LJ went on to say:
84.It appears therefore that the English Court of Appeal saw nothing improper in the prosecution or the defence approaching and visiting witnesses in order to put their version of the facts to them, including telling the witnesses that they had been misled by the other side. 85.In Kwan Fung-kam v A-G [1990] 2 HKC 577, Cons VP delivering the judgment of the Court of Appeal said:
86.Kwan Fung-kam v A-G [1990] 2 HKC 577 was concerned with a summons taken out by the Director of Legal Aid for specific directions regarding the propriety of approaching police officers who were witnesses in a negligence claim against the police. The issue was:
87.Cons VP said at 578:
Thus, the court accepted that advising a witness that he was under no obligation to cooperate was proper, although such advice was given in the interests of a party to the proceedings and not of the individual witness. 88.Another important facet of this principle can be seen in the decision in Connolly v Dale [1966] QB 120. In Connolly the English Court of Appeal held that police officers acted unlawfully when they prevented the applicant’s solicitors from having full and unimpeded access to potential alibi witnesses. There, the applicant who was jointly charged with murder, wished to rely on the alibi evidence of several men who had no fixed abode. His solicitor instructed an inquiry agent, who was provided with a photograph of the applicant, to take immediate steps to find the men by inquiring at the hostel where the applicant had stayed. When he visited the hostel the inquiry agent was prevented by police officers from showing the photograph on the basis there was possible prejudice to the proposed identification parade. He was also prevented by the police from gaining access to staff or residents. The detective superintendent responsible for the police investigation told the solicitor that showing the photograph to potential identification witnesses would amount to obstructing the police in the exercise of their duty, contrary to the Police Act 1964, and threatened to take action to prevent it. On the motion to commit the detective superintendent for contempt of court, it was held in the Divisional Court that, the detective superintendent was guilty of a clear contempt of court. The court would have granted injunctive relief but for the undertaking, which was accepted, not to interfere with the applicant’s solicitors or their agents in the proper course of their inquiries in connection with the preparation of the applicant’s defence to the charge of murder, and to send a letter of the manager of the hostel to correct any impression which the police might have given that the police had the right to prevent the applicant’s solicitors or their enquiry agents from interviewing and/or showing photographs to staff or residents at the hostel. 89.As there is no property in a witness, it is not improper to approach a witness for the prosecution (or a witness for the defence by the police) unless improper means are used. 90.In Connolly, the applicant applied for committal for contempt and the Divisional Court was prepared to grant immediate injunctive relief had that been necessary. Say in Connolly, the alibi was false and Connolly knew it but his solicitors and the inquiry agent did not. Could it be said that the solicitors and the inquiry agent were guilty of a conspiracy to pervert the course of justice because Connolly wanted to prejudice the proposed identification parade? I believe not. I will deal later with the question whether the solicitor’s belief (as opposed to knowledge) in the truth or otherwise of the alibi is a relevant consideration. Witness Protection Ordinance (“WPO”), Cap. 564 91.But is the principle that there is no property in a witness affected in any way by the witness’s inclusion in the WPP? 92.The WPO came into force on 9 November 2000. It is unnecessary for me to go through the WPO in any detail. Under the WPO, a WPP can be established by the approving authority. The approving authority is:
93.Inclusion in the WPP by the witness is voluntary and can be terminated by notice at any time by the witness Section 6(2)(a)(iv). Both the witness and the authority are required to sign a MOU but:
In the present case, Becky was not formally within the WPP because at the material time the MOU had not been signed by the approving authority. That is why the 4th or 5th charges were amended to one of attempt. If a person is included in a WPP or is being assessed for inclusion, the approving authority shall take such action as he considers necessary and reasonable to protect the witness’s safety and welfare: section 7. Under section 8, the witness could be given a new identity, presumably, after he has ceased to be a witness. Under section 19, members of the public wishing to enter the courtroom where the witness is going to give evidence may be required to identify themselves to the satisfaction of the officer and to undergo such search as the officer may require to protect the security or well being of the witness. 94.I believe the fact that a person has been included in the WPP does not in any way affect his position as a witness. Nor would it be legitimate to draw any adverse inference against the defence. However, the danger that a jury might do so is a reason why there should be no unwarranted disclosure. 95.Also, I believe the fact that Becky was in the WPP does not mean that she could not be contacted as a potential witness. Mr Wilson did not dispute that. Her whereabouts might not be known. But it would not be an offence to try to contact her. Say, as in Connolly, inquiry agents were engaged to locate her. That is prima facie lawful. First, because it would not be known that she was in WPP. But, even if, for any reason, that fact has become known, I can see no reason why one might not attempt to locate and contact her. Suppose, in the Semtech prosecutions, she was a potential witness for one or more of the applicants, including Derek. Why can no attempts be made to locate and contact her? It would then be up to her to decide whether or not to help. Of course, one must not compromise the security of a person in the WPP or use improper means. Section 17(1)(b). But I can see no reason in principle why one should not try to contact or enlist her as a witness. Falsity or sham 96.Mr Wilson submitted that falsity or sham was not part of the offence charged. Mr Wilson accepted it was not the prosecution’s case at trial that falsity or sham was not involved in the charge. 97.The learned judge held, and I respectfully agree:
98.Before us, however, Mr Wilson submitted:
99.In Antoniades, the applicant was charged with conspiracy to pervert the course of justice by an offer of money or some other material benefit (such as the provision of a flat) as an inducement to a witness (the alleged victim) to withdraw her allegation of rape. The principal argument was that since the woman was the alleged victim, she could not be regarded as a witness for the purpose of the conspiracy. Scarman LJ (as he then was) delivering the judgment of the Court of Appeal, said:
100.Antoniades is authority that any attempt to dissuade or prevent a witness from giving evidence by an offer of material benefit as inducement is an offence at common law. Antoniades does not support Mr Wilson’s submission. 101.Kellett was also charged with attempting to pervert the course of justice. He threatened to bring a slander action against his neighbours with the intention of causing them not to give evidence in his divorce proceedings. The English Court of Appeal in a judgment delivered by Stephenson LJ concluded:
Earlier Stephenson LJ said at page 386:
Stephenson LJ had earlier explained at page 383:
102.In Toney, the appellant Toney’s brother was charged with robbery, and the trial was due to start the following week. The appellant went to see the witness and wanted to talk about the evidence which the witness wished to give at the forthcoming trial. He had been told that the prosecution case would be that the witness had seen two people near the community centre, one with a stocking masked over his head. The appellant said that this was not so. His brother Brian was not there and “the white guy didn’t have a stocking over his face”. The witness started to walk back to his house. He felt irritated and annoyed, and he did not want to discuss the case further with the appellant. At that point, the appellant said, “You’re going to court to say you didn’t see two people, one with a stocking mask over his head”. The witness replied “I did” or “I am”, or words to that effect. 103.In that case, the appellant had not used any force nor uttered any threat. What the trial judge said in the summing up to the jury was that the jury must be satisfied that the appellant actually intended that the witness should give evidence which differed from the evidence which the witness would otherwise have given. It was in that context that the English Court of Appeal said the offence of perverting the course of justice by interfering with a potential witness could be committed where there was no evidence of any bribe, threat, undue pressure or other unlawful means:
It is to be noted that the incidence took place two days before the witness gave evidence. As Stephenson LJ said in Kellett at 392H:
However, Lloyd LJ went on to say at 370:
104.Toney was disapproved by the High Court of Australia in the case of Meissner v R [1994-1995] 184 CLR 132. In Meissner, the charge was that Meissner committed the common law offence of attempting to pervert the course of justice by improperly endeavouring to influence the plaintiff to plead guilty to a charge of making a false statutory declaration. Meissner was concerned with the employment of improper means to influence the plea of an accused person and result in the choice not being a free one. Brennan J, Toohey J and McHugh J said in their joint judgment at 140:
105.But, with respect, I am of the view that Toney was correctly decided on its facts. There, the trial was about to start the following week. Suppose Toney was the employer of the witness, if he had told the witness that unless he should say in court that he:
he would give him his contractual notice, that would be no more acceptable than if he had offered a raise to the witness. The context, I would reiterate, is all important. Egan, the 4th applicant The 1st charge 106.I will deal with the applicants in the reverse order starting with Egan. The learned judge acquitted Egan because he was not satisfied of his awareness of a sham. Essentially, the judge was not satisfied that Egan was aware that Becky was not held against her will. 107.The learned judge said:
108.It is important to note that Egan acted in his professional capacity. As such, provided he did not know his instructions to be false, he was obliged to act on them. The Code of Conduct of the Bar provided that subject to provisions which are irrelevant for the present purpose:
This principle applies to non-criminal work as well. Insofar as particulars (b) and (c) relied on belief or lack of belief on the part of Egan, I believe they are objectionable. 109.The learned judge after saying that Egan had not been a truthful witness, concluded:
110.Although Egan was acquitted, there is an appeal by the Secretary for Justice by way of Case Stated in relation to such acquittal. The questions of law raised in the case stated are:
111.At paras. 617 to 619, the learned judge said:
112.It is unclear what the learned judge meant when he asked:
113.In para. 618, the learned judge asked:
114.He came to the conclusion that he was unable to conclude beyond doubt that Egan was misleading the court. The learned judge was not satisfied beyond doubt that Derek was his client. If that be the case, there was no question of Egan not telling the court that that was so. 115.If Egan acted properly on the instructions of Massie and Clement that Becky was not with the ICAC voluntarily and that the application for habeas corpus was not a sham, it is difficult to understand why the learned judge thought:
116.I am unable to read this passage as saying that the learned judge found, as the question (3) of the Case Stated suggests that the learned judge had found that Egan had sought access to Becky and used the media to publicise an allegation that she was being held against her will with the intention of influencing Becky’s provision of assistance or information to the ICAC. With respect, that would be reading too much into the expression “his acts would have the tendency of influencing Becky”. In any event, the important finding in favour of Egan was that he was not aware of a sham (see paragraph 620 of the Reasons). In my view, this clearly indicated that the judge held as a fact that Egan was unaware that the attempts to gain access to Becky (including the habeas corpus proceedings) were shams. In other words, he was not satisfied that Egan knew Becky was being held voluntarily. 117.Accordingly, the making of an application for habeas corpus when one believes there are good grounds for doing so is not an agreement to do an act which has the manifest tendency to pervert the course of justice. There will have to be proof of an intent to do an act which will have the effect of perverting the course of justice. Given the judge’s findings, I can see no basis on which one could say that Egan was not entitled to proceed on the basis of his instructions. 118.Thus, insofar as the application for habeas corpus was properly made, that is not unlawful even if it might also have the tendency to influence Becky not to cooperate with the ICAC. I have already dealt with Mr Wilson’s submission to the contrary from paras. 98 to 105 above. 119.The above matters are relevant to the question of the requisite intention. In Meissner, Brennan J, Toohey J and McHugh J said at 140:
In R v Rogerson 107 ALR 225 Brennan J and Toohey J said at 232:
120.Accordingly, given the important finding that Egan was unaware of the sham, the requisite intention could not be established. 121.I would answer the questions in the case stated as follows:
122.I would reiterate in relation to question (3) that as the authorities show, intending merely to influence a potential witness’ provision of assistance or information to the ICAC is not unlawful. I can see no reason why a potential prosecution witness should not be persuaded to give evidence for the defence and vice versa, provided no unlawful means were used. Moreover, I agree with Mr Reynolds that the learned judge had not in the Reasons found that Egan:
123.As for (4), as I have earlier said, the fact that a person has been included in the WPP does not mean that the person would no longer be available to the defence. In other words, the witness does not become the property of the prosecution by inclusion in the WPP. 124.In my view, the learned judge was correct in his acquittal of Egan of the 1st charge. Charges 4 and 5 Belief 125.Charges 4 and 5 are based on section 17 of the WPO. Section 17, where relevant, provides:
The charges alleged disclosure of information that Becky was in the programme, rather than she had been considered for inclusion in the programme. They are framed as attempting the impossible, because as at the date of the offences, i.e, 15 July 2004, the Approving Authority had not signed the MOU, and Becky was not legally a participant in the WPP. 126.The prosecution case was that these offences were committed during two conversations between Egan and Magdalene Chow, a reporter employed by the SCMP, in the afternoon on 15 July 2004. At 4.38 pm the hearing began before Hartmann J and concluded at 6.10 pm. Between 5.34 pm and 5.56 pm, there was a brief adjournment while Hartmann J considered his ruling. The offence charged under the 4th charge allegedly took place during this adjournment. The 5th charge allegedly took place after 6.10 pm, when the hearing was adjourned to 16 July 2004 at 3 pm. 127.I agree with the learned judge that:
128.Mr Wilson submitted that the learned judge was wrong when he said that one of the relevant question was:
129.With respect, the learned judge was perfectly correct. Mr Wilson submitted that a person is guilty of an attempt to commit an offence under section 17 of the WPO, if, on being told, though wrongly, that a person was in the WPP, the informant disclosed that information to another person even if he did not believe that information. I do not agree. In R v Shivpuri [1987] 1 AC 1, Lord Bridge of Harwich in his speech which had the concurrence of the other Lords said a person had to be judged on the facts as he believed them to be. 130.Lord Bridge explained at page 22:
131.Suppose A, a petty criminal, were to tell B, another petty criminal, that he was in the WPP, which B did not believe. In fact, A was not in the WPP. B then said to C, another petty criminal that A had boasted of being in the WPP. In such circumstances, would B be guilty an attempt to commit a section 17 offence? I think not. Suppose the person who disclosed the fact was someone whom one would normally have regarded as reliable, that would only go to the likelihood of the informant’s belief or disbelief of the information. The more reliable the source, the less likely the informant would not believe it. But to be guilty, he had to believe that the information was true. 132.I turn to the learned judge’s finding that Egan believed that Becky was in the WPP. The learned judge said:
133.It is, of course, possible that Egan believed Ryan when he was told that Becky was in the WPP, but, with respect, I do not believe it followed necessarily as seemed to be implied by the expression “mutatis mutandis”. Earlier, the learned judge had said:
Throughout his evidence, Egan said he did not believe that Becky was in protective custody voluntarily. If she was detained against her will that might throw doubt on whether she was indeed in the WPP. The learned judge held that Frankie Chung had lied to Egan, telling him that he had spoken to Becky and that Becky wanted to leave the custody of the ICAC, and that Egan did not know that to be a lie. There is no evidence or finding that Egan knew that Becky was not telling the truth. The learned judge said that he could not be sure that Egan knew that the application for habeas corpus was a sham. 134.In para. 617, although in a different context, the learned judge said:
As I understand it, the learned judge was there referring to the fact that both Yam J and Hartmann J were not prepared to accept Ryan’s assertion that Becky was in the WPP. The implication of the final sentence, however, is important. The learned judge appeared to be saying that he rejected Egan’s evidence of his mistrust of the ICAC, because of his knowledge of the involvement of Derek and Lam. Presumably because the knowledge of the involvement of Derek and Lam cast doubt on the reliability of the evidence that Becky was held against her will. But the judge has found that it had not been proved that Egan knew or believed that the application was sham. Any imputation that Egan did not know or believe the genuineness of the application would contradict that. If the learned judge has made contradictory findings, I should act on the finding which is in favour of the defence and reject that which is inconsistent. Accordingly, I conclude that Egan had proceeded and was entitled to proceed on the basis that the habeas corpus application was not a sham. Insofar as the learned judge did cast doubt on his evidence on an inconsistent basis, such doubt is not supportable. 135.In my view the learned judge’s finding that Egan believed Becky was in the WPP cannot be supported. On this basis alone, Egan’s conviction must be overturned. Nevertheless, in case I am wrong in relation to Egan’s belief, I will now consider the rest of the evidence on the assumption that Egan did believe that Becky was in the WPP. The evidence 136.According to Magdalene Chow, as a result of certain conversations, an article appeared in the SCMP on 16 July 2004 under the by-line of Magdalene Chow and Sara Bradford. Sara Bradford, another SCMP reporter had covered the matter on 14 July 2004 but happened to be unwell on 15 July 2004, and Magdalene Chow covered the case in the afternoon of 15 July 2004. 137.The article contained the statement:
138.According to Magdalene Chow, that statement was not in her original draft but after she had emailed her original draft to the SCMP, she telephoned and added the statement that:
She said “it was believed” were edited out. 139.Magdalene Chow was cross-examined extensively on her journalist’s notebook. It was her evidence that pages 29 to 35 of her notes related exclusively to her conversation with Egan and page 36 related to Clement and that they did not contain what other journalists had told her. 140.The learned judge’s summary of Magdalene Chow’s evidence in relation to the first conversation is as follows:
141.This is what the learned judge said about the second conversation:
142.He concluded:
143.The learned judge summarized the effect of the two conversations in paras. 661 to 662 of the judgment:
144.The learned judge then concluded:
145.In Ms Chow’s statement to the ICAC she said the person who spoke to her in the first conversation:
146.She said in cross-examination by Mr McNamara on behalf of Egan that she had a clear recollection that:
147.The uncontradicted evidence was that Egan never smoked cigarettes but that Clement was a cigarette smoker. 148.Furthermore, at page 30 of her note book, she had written:
It was Clement who drafted or filed the relevant documents and not Egan. 149.Another mistake she made in her statement was that she said Egan told her that the hearing had been adjourned to 3 pm the following day because he had to be in the District Court in the morning. That was incorrect. 150.So it was submitted on Egan’s behalf that her evidence that it was Egan who had spoken to her was unreliable. But, it was Egan’s evidence that he had told Magdalene Chow when asked:
Indeed, he had written to the Secretary for Justice in similar terms as early as 19 July 2004. That being the case, I cannot agree the learned judge’s acceptance of Magdalene Chow’s evidence that it was Egan who had spoken to her can be faulted. 151.The learned judge was aware of her mistake regarding the adjournment to 3 pm. This mistake relates to the second conversation. But this is not a matter on which one could overturn the learned judge’s acceptance of Magdalene Chow’s evidence regarding the second conversation. 152.Mr Reynolds submitted that the learned judge has failed to demonstrate that he has properly evaluated the evidence. In Oriental Daily Publisher Ltd v Commissioner For Television and Entertainment Licensing Authority [1997-1998] 1 HKCFAR 279 at 290, the Chief Justice said:
The Chief Justice further explained at 292, if the reasons given are:
they are:
153.Mr Reynolds complained that the learned judge had failed to make specific findings as to the precise terms of the disclosures. He submitted the terms of such disclosures were critical on the two major elements of the offence, namely, intention and whether the act was merely preparatory. 154.Ms Chow’s evidence was that:
155.I have already quoted Egan’s evidence in para. 150 above. He was not cross-examined on this. The learned judge referred to this evidence in para. 529 as part of his narrative of Egan’s evidence. I should add that during cross-examination, Magdalene Chow denied that was what she said. She said she asked Egan what protective custody meant. But the emphasis there was whether the reference to “protective custody” in her notes came from Egan’s complaint letter. 156.It appears that no significance was attached to the differences between Egan’s evidence and Magdalene Chow’s evidence. Mr Wilson in his final submission made no reference to it. 157.Section 17 makes it an offence, without lawful authority or reasonable excuse, to disclose information about the identity or location of a person who is a participant in the WPP. The point to note, is that the offence requires disclosure. 158.In AG v Associated Newspapers Ltd [1994] 2 AC 238, the House of Lords was concerned with section 8(1) of the Contempt of Court Act 1981 which made it an offence “to … disclose” deliberations made by members of a jury in the course of legal proceedings. An article was published in The Mail on Sunday newspaper which revealed the deliberations of a jury in the course of reaching their verdict in a criminal trial. The article referred to accounts of three of the jurors as to how they had reached their decisions. The information had been given to a journalist by a third party who had been in direct contact with the jury members. In that context, Lord Lowry said, in a speech which had the concurrence of the other law lords, that in its plain and ordinary meaning:
159.I believe disclosure under section 17 should be construed similarly. 160.This is of particular importance when one comes to the fifth charge. If Egan had disclosed the relevant matters during the first conversation, the second conversation would simply be a republication of already known facts, and he could not be convicted on the fifth charge. 161.Moreover, in deciding whether there had been relevant disclosure, one needs to consider whether Egan actually disclosed the fact that Becky was in the WPP and that he intended to do so. I accept that disclosure can be made implicitly as well as explicitly (the “nudge-nudge wink-wink” situation canvassed at the hearing) but there must be cogent evidence of disclosure. 162.If Magdalene Chow was already aware that Becky was in a witness protection scheme, but did not know under what law the scheme was constituted, it is doubtful whether the identification of the relevant legislation is a sufficient disclosure, though, depending on the precise circumstances, I would not rule out the possibility. Nor do I think that where A discloses to B that C was in a witness protection scheme, he can escape liability under section 17 merely because A did not know that the scheme or programme was constituted under the WPO. More importantly, one needs to ask whether in identifying the legislation the person did and intended to disclose the fact that a person was in the scheme. In this context, I do not regard the fact that in the Ordinance, it was the WPP (“Witness Protection Programme”) and not the witness protection “scheme” a significant difference. 163.In respect of both the question of disclosure and intention, the evidence of both Magdalene Chow and Egan is important. 164.In Mr Wilson’s closing submission, he said that Magdalene Chow:
Mr Wilson had not submitted that Egan’s evidence on the conversation quoted in para. 150 above should be rejected. That may be because the requirement of disclosure was not properly appreciated at the time. But any proper consideration of the fourth and fifth charges requires a correct appreciation of the nature of these charges. 165.It is here that proper evaluation of the evidence is important. Such evaluation must include a proper evaluation of Magdalene Chow’s knowledge. Presumably, the learned judge proceeded on the basis that she knew Becky was in protective custody or in a witness protection scheme. I will assume that it is the latter, since Egan’s evidence was not challenged in cross-examination and had not been expressly rejected by the learned judge. If Magdalene Chow was already aware that Becky was in a witness protection scheme with the ICAC, I doubt the fact that Egan identified the legislation under which she was held would have amounted to a disclosure of information:
166.If Magdalene Chow already knew that Becky was in a WPP or scheme but did not know the exact statutory provision under which the programme or scheme was constituted, would the supply of such information run foul of section 17? One might ask: if Egan had said in reply to Magdalene Chow’s query that she should go to the library to look up the law, and she did so and found the WPO, would that have been a disclosure under section 17? Or, that he intended to do so? I think not. Also Egan’s state of knowledge of how much Magdalene Chow already knew might be important on the issue whether he intended to disclose the “identity” of Becky as a participant in the WPP. Suppose Magdalene Chow, instead of asking Egan “what is the witness protection scheme” went directly to the library and, after telling the librarian, that she had been covering an application for habeas corpus regarding Becky and understood that she was in the witness protection scheme of the ICAC, asked the librarian what was the relevant legislation and was told that it was the WPO. Would the librarian have committed an offence under section 17? I think not and for several reasons, one of which is that he/she had not disclosed the identity of a participant in the WPP. Suppose also, that Magdalene Chow, having solicited no response from Egan but wrote in her article that “This reporter believes that (Becky) is in the ICAC’s witness protective scheme”. She might have committed an offence under section 17 although she was unaware of the WPO. I will not multiply the examples. I wish only to demonstrate the possibilities. 167.These are matters which required proper evaluation and decision by the learned judge. In fairness, I must say that no such argument had been addressed to the learned judge, but the failure to appreciate the requirements of section 17 is fatal to Egan’s conviction. Lam, the 3rd applicant 168.I turn to consider Lam’s application for leave to appeal against conviction. Lam was retained by Derek in the afternoon of 13 July 2004. The learned judge found that on 13 July 2004, Derek and William Lau visited Lam at his offices at about 4 pm. Presumably, it was on that occasion that Derek retained Lam to act for him. Mandy joined them at Lam’s office at 5.39 pm and they left for Messrs Massie & Clement’s offices, arriving there at 5.59 pm. William Lau was not called as a witness nor has it been suggested that he was a co-conspirator. There is no evidence that Derek was already acquainted with Lam, although, according to Frankie Chung, in the afternoon of 12 July 2004, Derek said he needed to look for a famous barrister to defend him and in that context Derek mentioned the names of Lawrence Lok SC and Lam. Lam, Derek and William Lau left Messrs Massie & Clement at 6.08 pm. Mandy was left alone to give instructions to Clement. There is no direct evidence that he knew of the falsity or sham in the series of acts alleged. Did the 3rd applicant know of the sham? 169.There was no direct evidence that Lam knew that Becky or Frankie Chung was untruthful. In Frankie Chung’s affirmation he said:
170.Frankie Chung gave evidence under immunity. It was not his evidence that he had told Lam that what he said in the affirmation was untrue. The learned judge acquitted Egan because he was not aware that Frankie Chung was untruthful. Lam did not meet Derek until 4.12 pm on 13 July 2004, and he met Mandy for the first time at 5.59 pm, 17 minutes before he took her to consult Messrs Massie & Clement. Whilst at Messrs Massie & Clement it appeared that after the making the introductions, he left Mandy with Clement. By 5.59 pm, instructions were taken from her by persons who were not alleged to be co-conspirators. The instructions were given without any intervention by Lam. Thus, if Lam was party to an agreement that false representations were to be deployed, he would have had to agree to that course of conduct some time between 4.12 pm and 5.59 pm on 13 July 2004. It is to be noted that earlier on 11 July 2004, Peter Lai, a solicitor had been instructed to visit William Lau and Becky at the ICAC but that he was only able to see William Lau but not Becky. It appears therefore that the idea of retaining a lawyer to visit Becky at the ICAC was known to Derek prior to the engagement of Lam. Nattrass 171.Lam’s conviction essentially depended on the evidence of Aaron Patrick Nattrass (“Nattrass”) (PW7). Apart from Nattrass’s evidence the case against Lam is substantially the same as the case against Egan. Nattrass was the managing clerk of Messrs Massie & Clement, and had been in that position for about ten years. The prosecution relied heavily on Nattrass’s evidence on the conversation that he had with Lam on 30 August 2004 in which Lam allegedly made certain incriminating statements. Both Lam and Nattrass were at Egan’s flat for a buffet supper that evening and the conversation was supposed to have taken place at the dining table whilst the other guests were in the balcony. The contents of the conversation were reported by Nattrass to Mr Bishop of the ICAC on 7 September 2004. There is a 40-page transcript (referred to in cross-examination but not produced) of that meeting. Later on 22 September 2004, a statement (also referred to in cross-examination but not produced) was taken from Nattrass by the ICAC which he had signed. The learned judge relied on three incriminating statements which Lam had allegedly made in his conversation with Nattrass. The 1st incriminating statement 172.It will be recalled that in Mandy’s affirmation she said Becky was her business partner and that she held 30% of the shares in Ever Brilliant. This was particular (a) in the perjury charge against Mandy. The prosecution has conceded that this particular cannot be maintained. According to Nattrass, he confronted Lam with the fact that as at the date of Mandy’s affirmation, Becky was not registered as a shareholder in Ever Brilliant. In response, Lam allegedly said she had forgotten her lines. 173.In para. 561, the learned judge said:
With respect, that is not correct. The fact that it has not been stamped may affect its admissibility as evidence. But the liability to pay stamp duty presupposed the transfer of the beneficial interest. The learned judge went on to say:
174.But what were the “lines” which Mandy was supposed to have forgotten? That Becky was only a 30% shareholder in equity but that legal title had not vested in her? But legal title in shares (which are choses in action) does not depend on the filing of an annual return under section 107 of the Companies Ordinance, under which particulars relating to members are required to be stated. The transferee becomes a member of the company upon registration in the company’s register of members (Section 28(2) Companies Ordinance). According to Pennington’s Company Law, 8th Edition, at 416:
The learned author then mentions another view that legal title passes from the transferor to the transferee by virtue of the executed share transfer and the delivery of the transferor’s share certificate. In the end, it does not matter which view is correct. It is sufficient for present purposes to say that the transfer of the legal title did not depend on the registration of the annual returns under section 107. I should add registration of transfer of shares per se is not required, nor would the validity of the transfer depend on it. 175.It is highly improbable that Mandy would have been aware of such legal niceties, had told Lam that Becky was possibly only an equitable as opposed to a legal owner (assuming that legal title would only pass on registration in the company’s register of members and that had not taken place) and that Lam had advised her to say that Becky was only an equitable owner, hence, the forgotten line. With respect to the learned judge, he has failed to recognise the claim by Nattrass that Lam had said that Becky had forgotten her lines, far from being “not inherently improbable”, did not make sense. 176.Moreover, the learned judge has failed to weigh the possibility that this conversation was an invention of Nattrass. Nattrass personally attached great significance to the fact that Becky was not a registered shareholder of Ever Brilliant. He had caused Messrs Massie & Clement to search Ever Brilliant and passed the result to the ICAC. According to Clement, he had this conversation with Nattrass in September:
The 2nd incriminating statement 177.The 2nd statement is that Lam told Nattrass to tell Massie not to worry because Mandy had been paid, and she would shut up and say nothing to the ICAC. This is the critical statement in relation to which the learned judge said:
Ms Clare Montgomery, QC rightly submitted:
Unless it was true 178.But was it true? If she had been paid, it is improbable that the payment would not have been traced. It was the prosecution case that she had been paid. The prosecution adduced evidence to show that there had been payment in the form of a used Mercedes Benz car. But the learned judge rejected that and said:
So, there was no evidence that she had been paid. Nor did the learned judge find otherwise. That being the case, the learned judge’s statement that Lam would not have told Nattrass that Mandy had been paid unless it was true is puzzling. If the statement attributed to Lam was untrue, or not to have been proved to be true, that should go to Nattrass’s reliability and the learned judge ought to have realised that to be so. 179.It is also to be noted that Nattrass agreed in cross-examination that his allegation that Lam said Mandy had been told on her return to answer bail to keep quiet and to shut up was not in his statement to the ICAC, which was based on the tape recorded meeting with Mr Bishop of ICAC on 7 September 2004. 180.It is also not clear what Massie was supposed to have to worry about. There was no suggestion that Massie was party to any conspiracy. Massie’s involvement in the matter was brief and clearly captured in his note to Clement. He went on leave on 14 July 2004 and his only contact with Lam was the telephone conversation when the case was referred to his firm by Lam. Although Massie had given a statement to the prosecution, he was never called. It was never suggested that Massie was aware that Mandy was The 3rd incriminating statement 181.The 3rd incriminating statement is that Lam had asked Nattrass to tell Massie to say nothing to the ICAC and in particular, not to say that he had referred Mandy to Massie and Clement. The gist of Nattrass’s evidence on this can be gathered from the following exchange during Nattrass’s evidence:
ICAC letter to Massie 182.It is necessary to put this evidence in context. According to Nattrass the conversation started with Lam asking him “about the letter that the ICAC had written to Mr Massie on 26 August” (Transcript 653). The letter was referred to in cross-examination and in the Reasons, though never formally produced. But the learned judge proceeded on the basis that Lam was aware of the contents of the letter. 183.The reasoning of the learned judge should be examined against this letter. The letter was addressed to Massie personally and was marked “private and confidential”. It is dated 26 August 2004. It reads:
184.As the letter of 26 August 2004 made clear, Clement had been “interviewed and provided information to the ICAC …”. He would have told the ICAC that Lam went with Derek, Mandy and William Lau on 15 July 2004. That was his evidence at trial. Moreover, the letter clearly stated that it was understood that on 13 July 2004, Massie had spoken “to one or more individuals concerning (Mandy), which resulted in your later passing certain information to (Clement)”. That being the case, what was the point in telling Massie not to say that Lam had referred the case to Clement and Massie? Also given Lam’s experience as a criminal lawyer, he would have been aware that the ICAC would have obtained the CCTV recording of his offices as well as Massie and Clement’s offices. The evidence was that movement in and out of Lam’s and Massie & Clement’s offices were captured on CCTV. What was the point in telling Massie not to tell the ICAC, if Clement had already told the ICAC and Lam’s presence was recorded on CCTV? Conclusion on the incriminating statements 185.The learned judge regarded these statements as not “inherently improbable”. He relied on them in convicting Lam. I do not believe the learned judge’s reliance on these statements is justified. Since the learned judge relied heavily on such evidence in convicting Lam, on this ground alone, I would quash his conviction. Reliability of Nattrass 186.In case I am wrong on my understanding of the “incriminating” statements I turn to consider Nattrass’s reliability as a witness. Having regard to the importance of Nattrass the learned judge devoted over three pages of his judgment on him starting from para. 350 and concluding in para. 361. 187.It was Nattrass’s evidence that at T679:
Also that, at the end of August 2004 or beginning of September, he was furnishing documents secretly to the ICAC that were taken from the firm’s files, e.g. 2 cheques relating to payment of fees by Mandy. He had also supplied a copy of the company search on Ever Brilliant. 188.In para. 571(8), the learned judge recorded the defence submission which included:
It is not clear from the Reasons whether the learned judge accepted these criticisms of Nattrass. Since the evidence came from Clement, whom the learned judge had regarded as a truthful witness, if the learned judge had rejected such evidence, I believe he would have said so. 189.The evidence of Clement on Nattrass provides a useful insight into Nattrass’s character, I will quote the relevant evidence in full:
In para. 571 of the judgment, in relation the submission that:
the learned judge said:
190.Nattrass’s interest in pornography has less relevance to his reliability as a witness than the fact that he had made many unfounded allegations against many different people. The learned judge’s reference to Nattrass’s interest in pornography to the exclusion of other matters which bore directly on his reliability as a witness showed, with respect, insufficient appreciation of the importance of this other evidence on his reliability. In relation to these matters a proper evaluation of the evidence is essential. 191.The learned judge also regarded as important that:
192.Nattrass professed concern for the reputation of Messrs Massie & Clement. But the many complaints that he had made about them after his employment throw doubt on whether he was ever genuinely concerned about the firm. Moreover, it is difficult to understand how his conduct could be explained by his alleged concern for the reputation of his employers. As noted, he had supplied the firm’s documents in secret to the ICAC. In other words, he was informing on the firm’s client. The right to confidential legal advice is a fundamental human right and is protected by legal professional privilege, Regina (Morgan Grenfell & Co Ltd) v. Special Commissioner of Income Tax and Anor [2003] 1 AC 563. As was explained in Solicitor v Law Society of Hong Kong [2006] 9 HKCFAR 175, legal professional privilege “is not the privilege of the lawyer but of his client”, and that in Hong Kong, it is a constitutional right. It is difficult to imagine a more gross breach of duty. In the circumstances of this case, it is totally inexcusable and cannot be explained away by Nattrass’s alleged concern for the reputation of Messrs Massie & Clement. Such aberrant conduct on the part of Nattrass cannot be so easily disregarded. 193.The learned judge went on to say:
194.The fact that he had been a managing clerk for a number of years supports the view that he is a normal person. But a normal managing clerk would not inform on the client of the firm or pass documents relating to the firm’s client to the ICAC in secret. Nor, with respect, is that a sufficient answer, having regard to the evidence about the unfounded complaints against all and sundry that he was in the habit of making. 195.The learned judge’s conclusion on Nattrass can be found at paras. 578 to 580:
196.With respect to the learned judge, for whom I have the upmost respect, I do not believe that he has sufficiently evaluated Nattrass’s reliability. The conclusionary remarks in para. 580 are not an adequate substitute for a proper evaluation. So even if my analysis of the “incriminating statements” is not correct, I would quash Lam’s conviction since it was based on unreliable evidence. Other adverse inferences 197.The learned judge appeared to have drawn inferences adverse to Lam on the basis of his own analysis that the possibility of conflict of interest was not a tenable explanation for Lam’s decision not to act in the application for habeas corpus. With respect, whilst it is possible to say that technically speaking, if the 3rd applicant had acted in the application, there would be no conflict of interest in the application itself, the potential for conflict is obvious. Suppose on gaining access to Becky, she asked, “The ICAC has offered me the chance of being an immunised witness. Should I accept?”the 3rd applicant would have been in an impossible position of conflict. It is not fanciful to think that a person in a position of Becky would want to know whether it will be in her interest to cooperate with the ICAC, and if she were to do so, what would be the best term that she could get from such cooperation? It will be recalled Frankie Chung visited Derek on 10 July 2004 and attended Derek’s interview by the ICAC on 11 July 2004. 198.There is also force in Ms Montgomery’s submission that if Lam were a conspirator, it is much more likely that he would have sought to act in the case in order to keep control of it. Indeed, if he had conspired with Derek so as to influence Becky, it made no sense for Lam to manufacture a situation where it was not him but Egan or Messrs Massie & Clement who would gain access to Becky. That might provide Becky with access to independent legal advice, but it would provide no opportunity to the conspirators to threaten, bribe or otherwise influence her. Nor should one ignore the positive impact which Egan’s acquittal should have on Lam. As I have said, apart from Nattrass’s evidence, there is no substantial difference between Egan and Lam. 199.The prosecution suggested that the conspirators might have wanted Lam to act behind the scenes to avoid the application for access being connected to Derek. But, Frankie Chung filed an affirmation in the habeas corpus and instructed Egan to visit the ICAC on 14 July 2004. Also Frankie Chung had visited Derek on 10 July 2004 and accompanied him when he was interviewed by the ICAC on 11 July 2004. The evidence also shows quite clearly that the ICAC officers Lim and Matchy Mak heard Egan’s mobile rang and heard him say:
And that after hanging up, Egan said,
Egan made a similar open reference to Lam’s involvement while he was with Mr Ryan on 14 July 2004. Mr Ryan said Egan received a phone call and talked to someone called ‘Lammy’, after hanging up, Egan said to him:
Moreover, Mr Ryan said to Yam J on 15 July 2004 the ICAC:
200.At paragraph 407 of his Reasons for Verdict the judge said:
I find this reasoning difficult. I do not understand how this conversation can support “an inference of knowledge of the sham” against Lam. 201.On 15 July 2004 Lam had lunch with Mrs Reimer Lau and Mr Martin Yeung (his former trainee solicitors) at Grissini’s . The learned judge dealt with the Grissini lunch in paras. 332-339 of the Reasons. In para. 338, the learned judge related the evidence of Mr Yeung. According to Mr Yeung, Lam:
Also Lam had compared Becky with Angela Gong, a person who had allegedly been kept by the ICAC against her will, and whom Lam had managed to “save”. The evidence regarding the Grissini lunch led the learned judge to conclude:
202.These findings should be read with particular (d) in the conspiracy charge (see para. 8 above). It is to be noted, however, that the sting of particular (d) is the false representation that Becky was being unlawfully detained. So merely involving the press is insufficient. 203.The learned judge recognized the conflict between what Lam said at the Grissini lunch which suggested that Lam believed Becky was held against her will and the incriminating statements he had allegedly made to Nattrass. In para. 581 of the Reasons he said:
The learned judge did not return to the matter or solve the apparent conflict. That is ground 16 of Lam’s grounds of appeal. I believe it is clear that the Grissini lunch was not evidence that Lam believed or knew that Becky was not held against her will. 204.These adverse inferences are not in any event sufficient to support Lam’s conviction. Nor had the learned judge said that in the absence of Nattrass’s evidence which he accepted, he would have convicted Lam. 205.The learned judge found that Mandy did not believe that Becky was held against her will by the ICAC, and that Mandy realised that what she said or omitted to say in her affirmation of 15 July 2004 amounted to deliberate falsehood. But there is no evidence that Mandy told Lam that she had indeed been untruthful. So there is no direct evidence that Lam knew that the application was a sham. 206.Para. 634 is critical to the learned judge’s conclusion that Lam was guilty:
207.Ms Montgomery submitted that as a solicitor, the rule applicable to Lam was clear. As a solicitor if he had doubts about his instructions or even a belief that they might not be true, provided he did not know those instructions were false, he was entitled to act on them. 208.There is no duty upon a solicitor (or a barrister) to enquire whether the person giving him instructions or providing him with material is telling the truth. This is confirmed by the commentary in The Hong Kong Solicitors’ Guide to Professional Conduct in relation to principle 10.03, which prohibits knowing attempts to deceive or participate in the deception of a tribunal. The Guide comments:
Insofar as the learned judge relied on Lam’s belief, as opposed to knowledge, with respect, he was wrong. Mandy, the 2nd applicant 209.Her conviction turned on the learned judge’s finding that she knew that the evidence that Becky was involuntarily detained by the ICAC, was false. 210.The learned judge said in para. 430 of the Reasons:
211.So the learned judge was saying that in relation to Derek and Becky the false application was the means by which they intended to put pressure on Becky. The conspiracy charge, especially particulars (b) and (c), alleged the doing of a series of acts each of which involved falsity or sham. 212.Hence, it is a case of using unlawful means to put pressure on a witness. That is unlawful. I do not agree with Mr Jonathan Caplan QC that the means were not unlawful. 213.I turn to consider the learned judge’s finding that Mandy knew that the:
214.In that regard the learned judge relied heavily on the evidence of Becky, in particular, that Becky told Mandy during their telephone conversations that she was “safe and sound”. The first took place on 11 July 2004 which had been taped by the ICAC. 215.The learned judge said:
216.Here, I do not believe there are substantial grounds to impugn the learned judge’s finding which are essentially based on his assessment of Becky’s evidence. 217.Following his finding at paras. 365, 430 and 431 that Mandy had knowledge or belief that Becky was not unlawfully detained and did not seek release from the custody of the ICAC, and the evidence of Frankie Chung that Derek told him that Becky was a fragile person and that Mandy must have known that this was her disposition, the learned judge concluded that she was guilty of the conspiracy. 218.I acknowledge Mr Caplan’s submission that Mandy had not said anything to Becky, in any of the telephone conversation, which could be construed as a threat or request not to co-operate with the ICAC. But, with respect, that is not necessary for the charge. He submitted that Mandy had real concerns about the welfare of Becky and that Becky had sent misleading signals. But the learned judge found that Mandy knew the evidence that Becky was involuntarily detained by the ICAC was false. Mr Caplan also relied on Clement’s evidence that Mandy did not expressly state that Becky had wanted to leave the custody of the ICAC, she only told Clement that she “had the feeling that [Becky] didn’t want to be where she was”, and that her instructions were “a little bit vague”. But such evidence had been considered by the learned judge and his conclusion was one which he was entitled to come to, and more importantly, not one which I am entitled to overturn. Mr Caplan further submitted that the learned trial judge took into account at para. 622 of the Reasons that Mandy did not say she would “try to save” Becky during the telephone conversations on 12th July 2004. Mr Caplan submitted that Mandy did, however, send to Becky via SMS a “lawyer’s” phone number in the afternoon of 12th July and a message saying “lawyer will save u” in the evening of 14th July. I do not believe this could invalidate the learned judge’s conclusion. In fact, this evidence was against Mandy : at no stage had Becky requested help from anyone, yet a message was sent to her requesting her to contact a lawyer who was unknown to her. Destruction of the telephone intercepts 219.In para. 22 above, I mentioned that Becky called Mandy and that the call was monitored by the ICAC. The learned judge found, accepting the evidence of Becky that she said to Mandy:
220.This call was intercepted and recorded by the intelligence team of the ICAC. A first hand listener’s notes (“the Notes”) were contemporaneously prepared by the officer who listened to the call. 221.Unfortunately the tape recording of 11 July 2004 conversation as well as the Notes of that conversation have been destroyed. Ms Montgomery’s submission on the destruction of the tape and the Notes was adopted by all the other applicants. 222.The sound recording was destroyed in July as a matter of routine. The Notes were destroyed on 2 September 2004. The ICAC has not explained why they were destroyed. It was not said that the Notes were destroyed as a matter of routine. However, in para. 599, the learned judge said he accepted the evidence that monitored calls were intended for intelligence only and not as evidence, and that there was a procedure for the Notes’ destruction one month after the cessation of tapping, unless special request was made for its retention. 223.The importance of the conversation is obvious as the learned judge clearly recognised. The learned judge compared the listener to an “independent witness to that conversation …”. If the Notes had been available, it would have been highly important evidence regarding the contents of the conversation. The Notes having been destroyed and no one had any memory of any of the calls, the matter was not pursued. 224.Mr Wilson has referred us to paras. 41, 582, 599, 600 and 601 of the Reasons where the learned judge dealt with the destruction of the telephone recording and the Notes. The learned judge summarised the submission as follows:
225.But as the learned judge correctly pointed out in para. 600, the requests were for:
226.The learned judge concluded:
227.It is important to note that the intercept was in place for the Semtech investigation. In that context, I do not believe the statement “safe and no incident” would have been regarded as significant. Since the Notes would not have been a verbatim transcript of the conversation, even if there was no mention of “safe and sound” in the Notes it would not follow that it had not been said. Indeed, there was an investigation report based on the Notes. The learned judge said:
My understanding is that the investigation report had been provided to the defence, and they must have had good reason not to cause that to be produced. I am willing to assume that the investigation report had not mentioned “safe and sound” but again it does not follow that Becky had not said it. What is significant that the learned judge was sufficiently impressed with Becky’s evidence that he said he was not “handicapped in trying the case”. 228.The learned judge also found that there was no mala fides. In the context it could only mean that he was of the view that it was not a case of deliberate destruction of evidence knowing it to be material. 229.Ms Montgomery submitted that the learned judge should have regarded their destruction as
She also submitted that:
230.But, as I have endeavoured to explain, in the circumstances, even if the Notes did not corroborate Becky’s evidence, it did not mean that the learned judge might not otherwise accept Becky’s evidence. 231.I have taken into account Ms Montgomery’s forceful submissions and hope I will be forgiven for not dealing with them at length. With respect, the learned judge dealt with the destruction of evidence issue carefully and fully in his Reasons and I do not believe it has been shown that he was wrong. Presumption or inference as a remedy 232.Ms Montgomery submitted that the learned judge should have applied the evidential presumption “omnia praesumuntur contra spoliatorem” (all things are presumed against the spoliator). But at most, it meant presuming that the Notes did not record Becky saying to Mandy that she was safe and sound. But not that Mandy did not say it. I cannot accept Ms Montgomery’s submission that:
Conclusion on Charge 1 233.I believe there was adequate evidence on which the learned judge could convict Mandy on the first charge. I am unable to agree that sufficient ground has been shown to entitle me to reject the learned judge’s conclusion. Charge 2: Perjury 234.Here, the issue was whether Mandy had attempted to make an affirmation which was, to her knowledge or belief, false in a material particular. The alleged matters of falsity are set out in paragraphs (a) - (c) of Charge 2 and there is one alleged omission. Paragraph (a) was, however, not pursued by the prosecution. 235.The learned judge found that the ICAC had not confiscated Becky’s SIM card, that Becky had not said that she did not know where she was, that Becky did have close family members in Hong Kong and that Mandy had omitted to mention that Becky had told her she was safe and sound. He also found that these statements/omission were false and that Mandy did not believe them to be true. He found that Mandy understood the contents of her affirmation as interpreted to her by Raymond Lam. 236.Mr Caplan submitted that section 43 of the Crimes Ordinance required “corroboration” in the sense that a person could not be convicted:
However, as the learned judge correctly held there were evidence from Becky’s mother and elder sister that they lived in Hong Kong. That is sufficient “corroboration” for the purpose of section 43. 237.The learned judge dealt with charge 2 in paras. 638 to 643 of the Reasons. Mr Caplan submitted that it was incumbent on the prosecution to prove that the statement(s) were false and that Mandy knew that they were false or did not believe them to be true. The prosecution must also prove that the statement(s), when viewed objectively, were material in the proceedings which is an issue to be decided by the judge (R v Millward 80 Cr App R 280). I am satisfied that the statements and omission are capable of influencing the tribunal (see Archbold Hong Kong 2007 paras. 30-80). 238.Mr Caplan referred to R v Davies [1974] 7 SASR 375 where the Supreme Court of South Australia considered the meaning of ‘materiality’ in the offence of making a false declaration as contrasted with the offence of perjury. Bray CJ said in the context of perjury: “Material, I think, in this context must mean, not only relevant, but practically relevant. A statement of only remote or theoretical relevance might not be material” (at page 377). Wells J said: “A fact, in my opinion, is material for the purposes of a charge of perjury when it is of such significance and importance, having regard to the whole of the evidence, that it is capable of affecting the decision of the appropriate tribunal of fact on the factual issue or issues, and materiality should be given a corresponding meaning” (at page 391). A little later, Wells J said: “For the purposes of a perjury charge, materiality must ultimately depend on the relationship between the impugned evidence and the issues contested in the case in which that evidence was given, and the force and bearing that the one has upon the other” (at page 394). 239.With respect, I am unable to agree that the learned judge has erred in any way. I am happy to adopt the approach Mr Caplan commended to me. Mandy’s omission to mention that Becky had told her that she was “safe and sound” is clearly material, as the learned judge said that would have undermined Mandy’s professed belief that Becky was detained against her will. Although I agree with Mr Caplan that the absence of close family members in Hong Kong was not a condition for Mandy’s locus standi, it is common sense that if Becky did have close family members in Hong Kong, they would be expected to come forward if Becky had been detained against her will. If Becky was being detained against her will, the court would want to know why her family was not making or supporting the application. As for the confiscation of Becky’s SIM Card, that went to the question whether she was free to do what she pleased which materially supported the case that she was detained against her will. 240.In the circumstances, I cannot agree that the conviction on charge 2 is wrong. Derek, the 1st applicant 241.As noted, the 1st applicant has absconded. He has also been convicted in the Semtech trial. The fact that he has absconded has no bearing on his guilt or innocence in this application. However, I am satisfied that for the reasons given by the learned judge his conviction must be upheld. Conclusion 242.I would give leave to both the 3rd and 4th applicants to appeal and treating the hearing as the hearing of the appeal, I would allow their appeals, and set aside their convictions. As for the 1st and 2nd applicants, I would refuse leave to appeal. Hon Ma CJHC : 243.I have read in draft the judgment of Tang VP and gratefully adopt much of its contents. I also agree with the conclusions reached by him (together with the reasons) in all respects save one (in relation to the 3rd applicant). I also agree with the conclusions and reasons of Wright J, save in relation to the 4th applicant. In my judgment, I would dismiss the applications for leave to appeal of the 1st, 2nd and 3rd applicants. In the case of the 4th applicant, I would grant leave to appeal and, treating the hearing as the hearing of the appeal proper, also allow the appeal. I would also in his case dismiss the appeal by way of Case Stated and answer the questions raised therein in the way Tang VP has done. 244.For my part, I only intend to deal with two aspects, both to do with the main charge faced by all the applicants (Charge 1 – conspiracy to pervert the course of public justice) : -
I shall use the same abbreviations as appear in the judgment of Tang VP. The adequacy of Charge 1 as drafted 245.Counsel for the applicants all made submissions along the lines that the first charge (which is set out in full in paragraph 8 above) was inadequate to charge the alleged conspiracy to pervert the course of public justice. The arguments were developed principally by Mr Jonathan Caplan, QC for the 2nd applicant (Mandy) and Ms Clare Montgomery, QC for the 3rd applicant (Lam). 246.Ms Montgomery highlighted the following statement made by the prosecution in opening the trial :
247.It was submitted that this statement, which confirmed or summarized Charge 1 as drafted, disclosed no offence known to law. Essentially, the submission was to the effect that the four pleaded particulars in the Charge merely went to attempts to gain access to Becky. Gaining access to a potential witness was not illegal and could not be said to be an act that would pervert the course of justice. This was premised on the point which Tang VP has already discussed at length, namely, that there is no property in a witness. As far as it goes, this proposition must be right. However, as Mr Martin Wilson, QC (for the prosecution) has argued, this was not the effect of Charge 1 at all. Here, it becomes necessary to deal first with the ingredients of a conspiracy and secondly, of the offence of perverting the course of public justice. 248.The essence of a conspiracy is of course the agreement to perform an illegal act (in the present case, to pervert the course of public justice). Section 159A of the Crimes Ordinance, Cap. 200 confirms this. 249.Where direct evidence of the relevant agreement is not available (and this is so in most cases involving a charge of conspiracy), the usual way of establishing the agreement is by way of drawing inferences from overt acts : - see Archbold Hong Kong 2009 at paragraph 36-11. 250.Though it is often said that overt acts need not be spelt out (see Archbold at paragraph 36-41), the particulars of the principal overt act or acts are often set out in an indictment (or ordered to be provided) so as to make clear just what is the conspiracy alleged : see Archbold at paragraph 36-44. The underlying principle is that the accused and the trial court are entitled to know on the face of the indictment the true nature of the prosecution’s case : see The Queen v Chan Kang To [1997] HKLRD 412, at 416B (referring to R v Landy (1981) 72 Cr App R 237, at 244). 251.Since the purpose of setting out overt acts is really just to make clear the nature of the case alleged against an accused, it follows that the pleaded particulars do not necessarily constitute essential ingredients of the offence : - see R v Hancock (1996) 2 Cr App R 554, at 559-60. As stated above, the essence of a conspiracy is the agreement to perform an illegal act. 252.Before analyzing the charge in the present case, I should discuss the ingredients of the offence of perverting the course of public justice and particularly in the context of seeking access to actual or potential witnesses. 253.As Tang VP has stated, the starting point must be that there is no property in a witness. It follows from this that merely seeking access to a witness in criminal proceedings (whether actual or contemplated) will not by itself amount to the offence of perverting the course of public justice. Asking a witness to reconsider assisting the authorities or giving evidence may not necessarily amount to an offence. Much depends on the actual circumstances. 254.The gist of the offence of perverting the course of public justice is, in broad terms, conduct which is intended to lead to a miscarriage of justice : see R v Machin [1980] 1 WLR 763, at 766H, 767B. 255.In the context of approaches made to witnesses, an attempt to dissuade a person who otherwise intends to give evidence from so doing, (in the sense of stifling that evidence being given) and thereby obstructing what otherwise would be the course of justice, can amount to perverting the course of public justice. But where is the line to be drawn? The following represents what I understand to be the law in this area : -
256.The actus reus of the offence of perverting the course of public justice consists of any act that has the tendency to impair the capacity to do justice : - see Rogerson at 230. The mens rea is the intent to pervert the course of justice by an act that has the said tendency : - see Rogerson at 231. 257.As to the actus reus of the offence of conspiracy to pervert the course of public justice, this consists of the agreement to do an act having the tendency to impair the capacity to do justice : - see Rogerson at 231. 258.The mens rea of the offence of conspiracy to pervert the course of public justice is proved by showing that the alleged conspirators intended that if the relevant act was done in the circumstances contemplated, it would have the effect of perverting the course of justice : - see Rogerson at 231. As to the proof of this element, the following passage from the judgment of Brennan J and Toohey J in Rogerson at 232 represents the law : -
259.I should for completeness just point out that the offence of perverting the course of public justice is not restricted to the situation where curial proceedings are actually in existence. While admittedly the term “the course of justice” does refer to curial proceedings, the offence can be committed even at the police investigation stage when criminal proceedings are imminent, probable or possible. In the judgment of Mason CJ in Rogerson at 228, he said this : -
260.With the above principles in mind, I move on to an analysis of Charge 1. In my judgment, the Charge is adequately drafted and cannot be impugned in the way submitted by the applicants : -
The 3rd applicant 261.Before dealing with the position of Lam in detail, it is useful to take a step back to see exactly what had actually happened in the present case. The following observations are pertinent here : -
262.Lam’s role has already been briefly outlined in Tang VP’s judgment. He was Derek’s lawyer. In the afternoon of 13 July 2004, Derek and William Lau (the manager of Semtech, the company that was the subject of the criminal investigations) were seen to go into the offices of Lam to see him. They were later joined by Mandy at about 5:39 pm. At 5:59 pm, Derek, Mandy, Lam and William Lau were seen going to the offices of Massie & Clement. 263.What then took place in Massie & Clement’s office when the four persons just mentioned met Richard Clement (a partner of Massie & Clement), is of some importance. Clement said in evidence that Lam referred Mandy to his firm to represent her interests because (according to Lam) there was a conflict of interest. This was the way the evidence was elicited from Clement in his cross-examination at trial : -
264.In my judgment, this was a critical piece of evidence. It has been suggested on Lam’s behalf by Ms Montgomery that his statement was entirely reasonable and that there was a potential conflict of interest between Derek and Mandy. With respect, this is extremely difficult to accept : -
265.The premise therefore in Lam not agreeing to act for Mandy (as well as Derek) was non-existent. 266.Yet, despite this assertion of a conflict of interest, Lam became involved in almost every aspect of the very matter on which Mandy was instructing Massie & Clement, namely, seeking to gain access to Becky : first, by the two visits to the ICAC by Egan and subsequently, by the institution and prosecution of the habeas corpus proceedings. In other words, quite inexplicably, Lam embarked on a series of conduct that not only demonstrated that all that he had said about the existence of a conflict of interest was simply untrue as a reason, but also that he did the exact opposite of what was apparently intended. 267.In the Reasons, the Judge emphasized this aspect : -
This was said in the course of the Judge’s reasons for rejecting the submissions that had been made that there was no case to answer. These reasons were applicable when the Judge came to consider his final verdict. 268.The involvement of Lam in almost every aspect of the attempts to gain access to Becky is clearly shown by the evidence as follows. 269.After the initial meeting in the afternoon of 13 July, eventually Derek and Lam went to the FCC where they met Egan. At 6:51 pm, Egan telephoned Clement to indicate that Lam was agitated about the way Clement intended to deal with the ICAC in attempting to gain access to Becky. Whether or not Lam was agitated is unimportant : the fact his name was referred to gives rise to the inference that he was involved in a matter that, in theory, only concerned Mandy (that is, seeking to gain access to Becky). 270.Egan was ostensibly instructed by Massie & Clement in the ICAC visits on 13 July in trying to gain access to Becky (see paragraph 266 above). However, Lam spoke to Egan at least three times during this visit (the calls were recorded at 7:45 pm, 7:51 pm and 7:56 pm). There were further telephone conversations at 9:06 pm and 9:21 pm. 271.The next morning (on 14 July), before Egan went to the ICAC for the second visit, he spoke twice with Lam on the phone, the telephone conversations were recorded at 9:17 am and 11:01 am. 272.The same day, after the habeas corpus proceedings had concluded before Yam J, Lam and Egan spoke on the phone : at 5:58 pm, 6:24 pm and 6:30 pm. 273.On 15 July, at 12:57 pm (after the hearing before Yam J that day), Egan spoke to Derek (who, it will be remembered, was not his client, but Lam’s) mentioning Lam. At 1:01 pm, Lam and Egan spoke. That afternoon, when the habeas corpus proceedings were before Hartmann J, they spoke again at 6:26 pm. 274.On 16 July, after Hartmann J had delivered his ruling, Lam spoke with Egan on the telephone at 6:26 pm. Prior to this, Lam had called Egan five times. 275.It must be borne in mind that at no stage was Egan officially retained by Lam for Derek. He was at all material times retained only on behalf of Mandy. And yet, as the Judge observed, Lam was engaged in “heavy telephone traffic” with Egan. 276.Another feature of Lam’s substantial involvement during the time of the said attempts to gain access to Becky were his communications with the press. The Judge was of the view that Derek and Lam agreed to involve the press in carrying out the conspiracy alleged under the 1st Charge. In paragraph 633 of the Reasons for Verdict, the Judge said this : -
277.On 13 July, subsequent to the first ICAC visit by Egan, Lam spoke with Carmen Hsu (of the Sing Tao Daily) at 9:36 pm. At about this time, she was also talking on the phone with Egan. 278.The next day, Sing Tao Daily published the story that Becky (though not named) was allegedly being held against her will. At 9:14 am, Lam spoke with Ms Hsu. He did so again at 6:24 pm that day. 279.On 15 July, in the course of the habeas corpus proceedings, Lam again spoke with Ms Hsu : at 11:11 am, 2:12 pm, 4:05 pm; there were three calls between 5:09 pm and 6:25 pm, 7:07 pm and 8:30 pm. 280.On 16 July, Lam spoke with Ms Hsu at 3:05 pm and 3:08 pm. Sometime after 6:00 pm, Lam called Ms Hsu four times and she had called him three times. 281.In the afternoon of 16 July, Lam had also spoken with the reporter from the South China Morning Post, Magdalene Chow. 282.In my judgment, the above matters (all of which were referred to by the Judge) clearly demonstrated the pivotal role played by Lam in relation to the attempts to gain access to Becky. And yet, as I have pointed out, he attempted, under the guise of an asserted conflict of interest, to appear not to be involved. It will be noted that in the documents filed in the habeas corpus proceedings and during counsel’s submissions in those proceedings, no reference was made at all to any link between the person making the application (Mandy) and Derek. The involvement of Lam was of course not apparent either. 283.The irresistible inference was that drawn by the Judge, that Lam had planned the habeas corpus proceedings (at least he was heavily involved in it). The term used by the Judge was that he was “calling the shots behind the scenes”. 284.The Judge was also of the view that Lam must have known that Becky was not illegally detained by the ICAC. There is admittedly no direct evidence of this but in my view, this inference is similarly irresistible. The attempt to disguise his heavy involvement in the attempts to gain access to Becky was, in my view, highly suggestive of an attempt to disguise from the ICAC, and later the court, the involvement of the very person who was the subject matter of the ICAC investigation, Derek. 285.It is to be remembered that Becky was probably at that stage the main witness against Derek; certainly an important one at the very least. All this, coupled with the fact that, apart from what Mandy had asserted, there was no evidence whatsoever that Becky was being held against her will, gave rise to the inference that Lam knew the true position. 286.I do not ignore the fact that the Judge relied on the evidence of Nattrass and what has been referred to as the Grissini lunch. For my part, I do not place too much importance on these two aspects. The significance of the evidence in relation to them can be seen from the following. 287.As regards the Grissini lunch (which took place on 15 July between Lam, Mrs Mary Jean Reimer Lau (formerly an assistant solicitor in Lam’s firm) and Mr Martin Yeung (Lam’s former trainee solicitor)), discussions took place about the Semtech case. 288.The relevant points of this evidence were summarized by the Judge as follows : -
289.The significance of this evidence lay in the extensive involvement of Lam, particularly in the habeas corpus proceedings (which Lam said he had planned), notwithstanding his alleged conflict of interest. The reference to switching on “all the machines” against the ICAC involved the use of the press to which I have also alluded (the Judge at paragraph 632 of the Reasons for Verdict said Lam used Ms Carmen Hsu as “part of the machines at his disposal”). All this was, however, the effect of the evidence to which I have already referred. The Grissini lunch therefore, in my view, merely corroborated this. 290.As regards the evidence of Nattrass, the only importance of this in my view was the further corroboration of the role of Lam (as to which there was other evidence as I have said). 291.I appreciate that Tang VP has carefully analyzed the Judge’s reasons for accepting the evidence on Nattrass and he has found this unconvincing. For my part, I am satisfied that the Judge had carefully analyzed Nattrass’s credibility in the Reasons for Verdict, having heard his evidence first hand. I am not satisfied that this is an appropriate case for this court to overturn the Judge’s views on the credibility of a witness, particularly in areas clearly of primary fact. Hon Wright J : 292.I have had the opportunity of reading, in draft, the judgments of the Chief High Court Judge and the Vice President. For the convenience of the reader, I shall adopt the same descriptions as have already been used. 293.I propose to deal with the position of each applicant in turn: insofar as Egan, the fourth applicant, is concerned I shall deal with, together, as a matter of convenience, his application for leave to appeal conviction on the 4th and 5th charges as well as the Application for Review in respect of his acquittal on the 1st charge. 294.In an attempt to limit the length of my judgment I shall avoid repeating, so far as practically possible, the evidence, findings of fact and extracts from the judge's Reasons which have already been set out in the other judgments but shall supplement them as and when it is necessary to do so. 295.It is important to remember that the applicants were tried by a professional judge sitting alone. Just what is to be expected of reasons for verdict must vary from case to case: the Reasons ran to 173 pages following a trial which lasted for 50 days. They have been attacked from almost every possible angle. I accept that some of the criticism is justified but, looked at in the round and not scrutinised phrase by phrase, dissected line by line, subjected to criticism concerning grammar and verb tenses, the bones are there: they may well have benefited from the addition of a little more flesh in certain areas but there is a necessity to guard against over emphasis of form at the expense of the attainment of justice (and see §382 below). And the bones are there for the fundamental reason that the evidence was there, that justified the judge making the factual findings he did. 296.This matter was largely fact-based and depended on the drawing of inferences: there were few issues of law which required decision by the judge, although that may not be how it appears from the arguments before us. With one exception, the judge was correct on the law, too. The point upon which the judge erred led to the acquittal of Egan. CACC248/2006: the first applicant, Derek 297.I agree with both the Chief Judge and the Vice President that this application for leave to appeal should be dismissed. No arguments were advanced by or on behalf of Derek at the hearing of the appeal as there was no appearance, he having absconded after being granted bail. 298.In essence, the judge found that it was Derek who set the whole process in motion. Becky, his secretary, whom he believed, with justification, knew where the skeletons were hidden, had been arrested on the same day as he, Friday 9 July 2004. She remained in the presence of the ICAC: he was anxious that the potential damage which she could do to him be neutralised. 299.Becky’s state of mind concerning Derek, and others, was described by the judge in these terms:
300.Derek’s level of involvement and anxiety is apparent from a brief look at the evidence: this evidence is relevant also to Mandy’s application as it demonstrates her role as being a willing participant in the steps taken to obtain access to Becky. 301.Derek was released on bail on Sunday 11 July 2004. Soon after his release, Derek went to the office of Frankie Chung, a solicitor's clerk of CK Mok & Co, who had been engaged by Derek's wife to visit Derek and secure his release on bail. Derek told Frankie Chung that he was "very worried" about Becky and William Lau. Frankie Chung rejected Derek's request to go to see Becky and William Lau but said he would arrange another solicitor to do so. At around the same time Derek made a telephone call to Becky: when she saw the identity of the caller she switched off her telephone without answering the call as, by then, she was cooperating with the ICAC and in the company of ICAC officers: she testified that she was embarrassed by his call. 302.The following day, Monday 12 July 2004, Derek again saw Frankie Chung and was told that, although it had been possible to see William Lau, Becky could not be reached. Derek described Becky to Frankie Chung as "a fragile person". Frankie Chung pointed out to Derek that Becky had been with the ICAC for more than 48 hours and that one possibility was that she might be becoming a prosecution witness. Derek said that he thought she would not do so but, for the reasons set out in §565 of the Reasons, the judge rightly inferred that Derek was worried that Becky may say things damaging to him. Despite Derek’s admitted boyfriend/girlfriend relationship with the second applicant, Mandy, he described Becky to Frankie Chung as "his intimate girlfriend". So it was from this time at the very latest that Derek must have been aware of the possibility, at least, of Becky cooperating with the ICAC. 303.During that afternoon there was a call from Derek’s mobile telephone to Mandy's mobile telephone simultaneously with which there was the despatch of a text message from a mobile phone of a person employed by Mandy to Becky's number, the message being "B. request to call chung lawer at onec. 94918238. M.". Mandy’s employee denied having sent that text and explained that she had left her phone in her office whilst working. The telephone number was that of Frankie Chung, to whom "chung" in the message clearly referred. It is unrealistic to suggest that it was anyone other than Derek who inspired that message and Mandy who sent it. 304.On Tuesday 13 July 2004 Derek went, with William Lau who had been released by the ICAC, to Lam’s office at about 4 p.m.. Lam arrived a little over 10 minutes later. Following on brief telephone calls to her, Mandy arrived soon after 5:30 p.m.. Some 15 minutes later Derek, Mandy, Lam and William Lau went to the offices of Massie & Clement where they saw Mr Clement. However, at some earlier stage, Mr Massie had been contacted, according to Mr Clement, by Lam: as Mr Massie was about to go on leave, he had passed the contact on to Mr Clement, leaving a note. Derek, Lam and William Lau left the offices of Massie & Clement after some eight minutes, leaving Mandy behind ostensibly to give instructions to Mr Clement concerning an attempt to communicate with Becky: she remained there for, approximately, a further 25 minutes. 305.Derek went, with Lam, from Lam’s office to the FCC. Becky went straight to the FCC from the offices of Massie & Clement. Egan was also present, or arrived, at the FCC. It was from there that Egan telephoned Mr Clement less than 20 minutes after Mandy had left the offices of Massie & Clement. It will be recalled that it was in that conversation that Egan told Mr Clement that Lam was agitated, that Mr Clement should be "hammering on the door of the ICAC" and that he, Egan, had instructions from Mandy to arrange for an immediate visit to the ICAC to find out what was happening to Becky. 306.Mr Clement, who by then was on his way home, arranged for a member of his staff to take a letter of instructions, addressed to Massie & Clement, to the FCC for signature by Mandy: this was to enable Egan to go to try to visit Becky at the ICAC. Some time after 7 p.m. the staff member saw Derek, Mandy and Egan there and subsequently went with those three persons, in Derek's car, to the ICAC offices where he and Egan were dropped off: Derek and Mandy went on elsewhere in Derek's vehicle. At 7:30 p.m. Derek went to Frankie Chung's office where he remained for some 45 minutes, during the course of which he indicated that CK Mok & Co should act for William Lau and Becky. Of course, despite purporting to give those instructions to CK Mok & Co on Becky’s behalf, at this stage he had not been in communication with her. 307.At about midnight that night (13/14 July 2004) Becky telephoned Frankie Chung having seen the text message from “M”, plainly Mandy. The judge’s summary of what happened then, insofar as it involves Derek, appears at §48 above. 308.There was also evidence that Derek had telephoned Egan shortly after his dead-of-night meeting with Frankie Chung; that Derek and Lam had telephoned one another during the morning of 14 July; that Derek had telephoned Frankie Chung a number of times that morning. During the course of one such call Derek had asked Frankie Chung, as opposed to anyone from Massie & Clement, to go with Egan to visit Becky, a request which Frankie Chung apparently sought to reject, but with which, after speaking to Egan, he complied. The visit to the ICAC, as has been seen, was unfruitful but the telephone records disclose that both before and shortly after Frankie Chung left the ICAC there were three telephone calls between him and Derek: Frankie Chung also made one call to Mandy at that stage. 309.It was decided that day to launch habeas corpus proceedings. Massie & Clement required a deposit on fees: this was paid by way of a cheque drawn on a bank account of Ever Brilliant. A further cheque drawn on that account was issued to Frankie Chung’s employers the same day, apparently in payment of fees for the visit which Frankie Chung had undertaken with Egan to the ICAC that day. As appears from the Vice President’s judgment, Ever Brilliant was a company the finances of which were underwritten by Derek: on 17 July 2004 he deposited $150,000 into that company’s account. 310.Proceedings were commenced before Yam J. that afternoon but adjourned to 15 July 2004. Yam J. granted a writ of habeas corpus returnable that afternoon. Shortly before lunch, Derek telephoned Egan enquiring of the outcome of the proceedings. Despite a complete ban being imposed by Yam J on communicating the outcome of the application to anyone, it is abundantly clear from the transcript of that conversation that Egan was to leave Derek in no doubt as to the fact that the writ had been granted but that an appeal was to be launched against that decision. There was then a meeting in Lam's offices from shortly before 5 p.m. until just after 6:30 p.m. that afternoon at which Derek, Mandy and William Lau were present. Shortly after those three persons left the offices with Lam, Mandy went to the offices of Massie & Clement and provided information to enable an affirmation to be drafted on her behalf. 311.Mandy returned to Massie & Clement the following morning and signed the affirmation, that being the affirmation which gave rise to charge 2. About 30 minutes after she arrived, Derek arrived. They left together some 20 minutes later. 312.On 21 July 2004 Derek and Mandy went to a motor car dealer where Derek purchased a used vehicle for $270,000 for which he paid by way of trade in of an existing vehicle, apparently registered in his name but used extensively by Mandy, by cash and by the use of his credit card. Derek instructed the salesman that the purchased vehicle was to be registered in, and the contract and receipt were to reflect, Mandy's name. 313.In the light of all this evidence, which the judge accepted and set out in detail in his Reasons but summarised at §§405 to 411, the judge was entirely justified in finding that the prosecution had proved its case against Derek. There is no merit in this application. CACC248/2006: the second applicant, Mandy 314.I also agree with both the Chief Judge and the Vice President that the second applicant’s application for leave to appeal the convictions on charges 1 and 2 should be dismissed. There is little that I feel it necessary to add. Charge 1 315.The prosecution case was described, in ground 1.1 of Mandy’s Amended Perfected Grounds of Appeal, as depending:
316.That wrongly characterised the prosecution case which, insofar as the habeas corpus application was concerned, was that it was but one of the means by which the conspirators sought to give effect to their agreement. This was made clear to the judge, and the parties, at the commencement of the trial when, in outlining the prosecution case, Mr Martin Wilson QC said:
317.The judge indicated, in §430 of the Reasons set out in §210 above, that, if Becky were a credible witness, her evidence established that "the acts did have a natural tendency to influence her.". That plainly was an inference which he was entitled to draw from the evidence before him. 318.The ground asserts that “…the object of the application… was to determine the issue as to whether the Becky was or was not voluntarily in the company of ICAC officers…”. The judge found to the contrary, that it was a device by which to gain access to Becky in order to influence her: he was correct in that finding. 319.For my part, I find no substance in the submission in ground 1.2 that the issue of Becky's voluntariness was reasonably raised. Such a submission ignores the factual background against which these events unfolded; the arrest of Derek and his desire to protect his interests; and Becky’s evidence generally, but particularly that she had told Mandy directly by telephone that she was "okay" and, twice, that she was "safe and sound". In context, and notwithstanding the additional submissions made by Miss Montgomery QC, who appeared on behalf of Lam in this appeal but not below, I do not accept that these references reasonably, or sensibly, could have been construed as simply meaning that she was physically well. 320.Nor did Becky’s evidence disclose, as is suggested, that she was in two minds as to whether to co-operate with the ICAC: her vacillation occurred only after the habeas corpus proceedings were made known to her, when she felt that she may have inconvenienced third parties. It was the conduct of the conspirators in seeking to carry out the objects of the conspiracy that demonstrably had that adverse effect on Becky. It was clear from her evidence that she experienced a period of indecision and distress once she became aware of the existence of the habeas corpus proceedings. Her evidence supported that of Mr Ryan, who appeared on behalf of the Commissioner of the ICAC in those proceedings and as a witness in this trial, who colloquially expressed the concern that the proceedings themselves would have the effect of intimidating Becky: the judge accepted Mr Ryan’s evidence. 321.The judge, although demonstrating his awareness of the criticisms which had been passed, accepted all of Becky’s evidence, as he was so entitled. His finding in this regard, which appears at §562 of the Reasons appears in full at §215 above. 322.Contrary to the submission in ground 1.3, Mandy’s role was not, "…to instruct, with the financial support of [Derek], the solicitors Massie & Clement on 13 July in order to express her concerns about [Becky] and, if possible, to obtain her release". 323.Even from my brief consideration of the evidence as it affected Derek, it was manifest before the judge that Mandy’s role was to lend her name to the events, participating willingly in whatever occurred and do whatever she was required to do to bring about the intended object of the conspiracy. The most striking example of this is the fact that she was prepared to sign an affirmation in support of the habeas corpus proceedings which, as the judge found, deliberately contained what she knew to be material falsities. 324.To this must be added two facets of the evidence: first, it was not she who furnished any instructions to Massie & Clement as to the commencement or conduct of, nor was she even present at court at any of the hearings of, the habeas corpus proceedings; secondly, even when Mr Ryan, a person with whom Egan was well familiar, informed the court that Becky was in the witness protection programme, Egan did not even think it necessary to ask for the matter to be stood down in order to take instructions from Mandy, or come to that anyone else, as to the further conduct of the proceedings. 325.Ground 3, which relates to charge 1, listed 12 matters which the judge was said to have failed properly to take into account in assessing the evidence before him. These submissions relied upon a slow trawl through the transcript of the hearing, upon a microscopic examination of individual, frequently quite minor, passages of the evidence, out of their true context, which were then used to criticize the judge for notionally not having considered them. 326.Whilst of course it is necessary for a judge to take into account all of the evidence before him and to consider the effect that the evidence has on the case for any of the parties involved, it is equally his duty both to apply commonsense in the implementation of that approach and to stand back to look at the evidence as a whole and to consider its overall effect. It would be an exceptional case where, on appeal, it were not possible for counsel to be able to point to a facet of the evidence to which a judge has not referred, especially in a lengthy trial such as this. 327.Whilst there is a duty on a judge of the District Court to provide adequate reasons for his/her decision, just what is required will vary from case to case: what will amount to adequate reasons for a decision will be dependent on the context in which the decision maker is operating and the circumstances of the particular trial. See Oriental Daily Publisher Ltd v. Commissioner For Television And Entertainment Licensing Authority [1997-1998] 1 HKCFAR 279. 328.There was no indication in this matter that the judge overlooked evidence, even if he did not specifically refer to certain aspects of it. There were extensive submissions made to him by counsel for each accused at the conclusion of the prosecution case and, again, at the conclusion of the trial: those submissions dealt in detail with the evidence. It is quite clear from a balanced reading of the Reasons as a whole, and of the transcript of the hearing, that the judge was fully alive to the elements of the offences, or, in the case of charge 1, what he understood to be the elements; to the issues that he needed to decide; and to the nature, extent and effect of the vast amount of evidence before him. There is a similar lack of merit in the submissions in grounds 3.2 and 3.3. 329.Ground 3.4 complains of the destruction of ICAC records of telephone intercepts despite a request from Lam that "the relevant records" be preserved. Mr Caplan QC, who appeared for Mandy in this appeal but not in the court below, allied himself with what was said on Lam’s behalf: similar submissions formed ground 11 of Lam’s grounds and ground 12 of Egan's grounds. 330.It is convenient to deal with all the submissions relating to this topic at this stage. Miss Montgomery submitted, particularly, that "the telephone records constituted... real evidence of a critical part of the case, namely [what] Becky had said...", further contending that the records had been destroyed when, first, the ICAC had a duty to retain those records and, secondly, their retention had been requested. 331.It was suggested that mala fides on the part of the ICAC was demonstrated by the fact that the "records" were destroyed only after Lam had written a letter, dated 10 August 2004, making his request that they be retained. It is pertinent to look at exactly what it was Lam requested:
332.Apparently the contention was that the "duty" was either absolute or arose from the fact that, when Lam asked for the records of the two mobile phone networks to be preserved, the ICAC should have realised the significance of the calls referred to by Lam in his letter and should then have appreciated that they should retain the recordings or the notes arising from them. 333.It seems to me that any solicitor practising in the field of criminal law in Hong Kong will inevitably be aware of the fact that telephone intercepts are carried out by the ICAC from time to time. If it was the intercept recordings and product of them that was what, indeed, was sought to be preserved, then one would expect that to have been specifically requested. I impose no higher expectation on Lam simply because he had been an ICAC officer. 334.The evidence of Rebecca Li and of Veronica Poon dealt with the procedure of retention and destruction of recordings of telephone interceptions. The procedure to which each of them spoke was that once an intercept takes place an ICAC officer listens to the recording that has been made and prepares what is known as a "first hand listener’s note". That first hand listener’s note is then distilled into a document known as an "intelligence summary". Only in the most exceptional circumstances is even a senior ICAC officer allowed access to the original recording: even access to the first hand listener’s note is strictly controlled and limited to senior ICAC officers: less senior officers are allowed specified access to the intelligence summary. The evidence was that the actual aural recording of the intercept is destroyed approximately 1 week after the intercept occurs whereas the first hand listener’s notes are destroyed approximately a month after the "operation" terminates: it was not clear from the evidence whether this means that the "intercept operation" or the overall operation during the course of which intercepts may be made. Nothing turned on that in the present matter. 335.What was destroyed subsequent to the date of Lam's letter were notes made consequent upon those recordings having been reviewed and further distilled. Moreover it is important to appreciate that what Lam asked to be retained, in very specific terms, was not the records of the intercepts or any product of them generated by the ICAC, but the records of the mobile service providers. Those records indeed were preserved. 336.A similar issue arose in HKSAR v MO Yuk Ping & Others DCCC367, 1334, 1360/2004 & 636/2005 in which the ruling refusing an application for permanent stay of proceedings on the basis of destruction of telephone interception recordings contained the following:
337.As Hartmann J recognised in MO Yuk Ping v Secretary for Justice HCAL111/2005, an application for judicial review which flowed from that ruling:
338.In any event, the intercepts in the instant matter occurred in regard to an intelligence gathering exercise concerning offences which may already have been committed in regard to Semtech and not in regard to the events which gave rise to the instant offences. 339.In the circumstances, I fail to see how it can be suggested that the ICAC acted mala fides in destroying the tapes, that the destruction was an abuse of the process of court or that it would give rise to the application of the omnia praesumuntur contra spoliatorem presumption. Charge 2 340.The judge amended the original charge of perjury to one of attempted perjury for want of form in the affirmation process: he was satisfied, however, that it had been Mandy's intention to make an affirmation which contained statements which, not due to inadvertence or honest mistake, were material and wilfully false to her knowledge – statements by way both of assertion and omission. 341.Ground 4.1 asserts the necessity of a person to be "lawfully affirmed" before he/she is able to commit the offence of attempted perjury. With respect, the requirement is that before someone is able to commit the offence of perjury he/she must be lawfully affirmed and it was that requirement that gave rise to the amendment: it was precisely because Mandy had not been "lawfully affirmed", yet signed what she intended to be an affirmation containing what she knew to be material and wilfully false statements, that correctly motivated the judge to amend the charge. That she intended it to be an affirmation and that it was made wilfully, contrary to the submission in ground 4.6, is self-evident from the fact that it was tendered to court in the adjourned habeas corpus proceedings. 342.The judge's approach to the evidence against Mandy in respect of both charges was appropriate. He evaluated that evidence adequately and drew the appropriate inferences. CACC248/2006: the third applicant, Lam 343.I also agree with the Chief Judge that Lam's application for leave to appeal should be dismissed. There were, in all, 20 grounds set out in the Re-amended Perfected Grounds of Appeal: although not all were elaborated upon individually in argument before us, none was abandoned. Some have already been dealt with simultaneously when considering Mandy's application and need no further consideration: others have been dealt with by the Chief Judge, which need attract only little, if any, additional comment from me. 344.Even though I take the view, for the reasons that appear hereunder, that the judge erred when he held knowledge or belief that Becky was not unlawfully detained and did not seek release from the custody of the ICAC to be an essential element of charge 1, I am entirely satisfied that the judge was entitled to draw the inference against Lam that he was well aware that there had been no request from Becky to secure her release. Thus, the judge’s error was one which favoured Lam as it imposed a higher burden on the prosecution: notwithstanding that higher burden, the judge was properly satisfied of the sufficiency of the evidence. 345.I agree with the Chief Judge that even leaving aside the supporting evidence which is available from Mr Nattrass in regard to what Lam said to him and from Ms Reimer and Mr Yeung concerning what Lam said at, what has been described as, the "Grissini lunch", there was more than sufficient evidence for the judge to have drawn the inference that Lam had been a party to the conspiracy. 346.Lam's conduct has already been substantially summarised by the Chief Judge in §§262-291, by the Vice President, and earlier by me in §§304-305. Conflict of interest 347.I agree with the Chief Judge that critical evidence was the assertion that Lam introduced Mandy to Massie & Clement because he foresaw a possible conflict of interest between Derek, his client, on the one hand and Becky, and presumably William Lau, on the other, yet this claim is completely controverted by his conduct thereafter. 348.To my mind, the most striking feature of Lam’s involvement is that within, quite literally, a few minutes of Mandy leaving the offices of Massie & Clement and meeting Derek, Lam and Egan at the FCC, Lam was, as was seen from the conversation that Egan had with Mr Clement, already countermanding the course of conduct planned by the very solicitors to whom Lam had introduced Mandy. Egan's claim that, by the time of his phone call to Mr Clement, he had already received instructions to go to the offices of the ICAC and that that course had been conceived of by "Mandy" beggars belief - especially in the light of his assertions that Lam was agitated by the course of action which Mr Clement had proposed and that Mandy appeared to be “…like a fish out of water. She looked like someone who had no idea of what was going on.". 349.The Chief Judge has set out in detail the communications that were recorded as having taken place between various mobile telephones subscribed to by others and that of Lam. I will not repeat that evidence, but would observe simply that not only does that evidence graphically illustrate Lam's involvement but the calls with Carmen Hsu of Sing Tao Daily are entirely consistent with Lam’s talk at the Grissini lunch on 15 July of switching on "all the machines" against the ICAC. 350.To seek to pass off Lam's extensive involvement throughout the period of the events from the earliest stage onwards as being attributable to mere professional concern that the firm to whom he had referred Mandy was acting in her best interests is inconsistent with commonsense. The judge’s conclusion that Lam was "calling the shots behind the scenes" was right on the mark. Mr Nattrass’s evidence 351.The issue of the judge's assessment of Mr Nattrass as a witness has been dealt with by the Chief Judge at §§290-291 and the Vice President at §§189-199. The judge has been criticised, generally and, specifically in ground 14, for accepting the evidence of Mr Nattrass. In my judgment, that criticism was unfounded, in this case. 352.Mr Nattrass was subjected to lengthy and wide-ranging cross-examination, even as to topics which, with respect to the judge, were neither relevant to any of the issues before him nor to the witness’s credibility or reliability. The judge could not have been anything other than fully alive to the opprobrium which was heaped upon Mr Nattrass at every possible opportunity. He demonstrated this to be the case. Over the space of 10 paragraphs in the Reasons he dealt with a number of the specific criticisms made of Mr Nattrass from which it was perfectly apparent that he approached Mr Nattrass's evidence with a substantial degree of caution. And rightly so. It is repeatedly said, despite being self-evident, that the longer cross-examination lasts, the more opportunity it affords a judge to assess the veracity and reliability of the witness. The judge had ample opportunity of doing so in this matter. 353.Despite demonstrating that he was fully aware of the criticisms of Mr Nattrass the judge expressed himself as being "... left in no doubt that Nattrass has been telling the truth about the conversations with [Lam] and [Egan]." Even had the judge felt inclined to deplore some or all of Mr Nattrass's conduct, once he found him to be a truthful and reliable witness in regard to issues which he was required to decide, the judge was entitled to take the evidence into account. There can be no doubt that that evidence is supportive of Lam's deep involvement in these events and, to a large extent, emanates from Lam himself. 354.I believe it to be necessary to deal, briefly, with two additional points made in ground 14 in regard to Mr Nattrass’s evidence. 355.The first is the submission made at §14.5 that the judge failed to consider whether Lam's right against self-incrimination had been violated after accepting that Mr Nattrass was “acting as an ICAC informer” at the time when Lam made the self-incriminatory statement to him; alternatively, that the judge should have exercised his residual discretion to exclude that evidence. That overstates what the judge found Mr Nattrass’s role to have been. 356.Reliance is placed, for this submission, on Secretary for Justice v LAM Tat Ming & Another [2000] 2 HKLRD 431 and Secretary for Justice v LAM Hong Kwok Popy & Others CACC528/2004. Each is factually entirely remote from the present: in particular, it is important to bear in mind the opening qualification of Li CJ in LAM Tat Ming at 438H:
357.The Chief Justice went on to say at 447E:
358.Mr Nattrass may have been a public-spirited citizen just passing on information that came his way; he may have been an interfering, self-important busybody: it was unnecessary for the judge to make a finding in this regard. No matter what Mr Nattrass’s pretences, or the impression he sought to create, may have been, the fact was that he was not at any stage employed by or under the instruction or direction of the ICAC insofar as his dealings with Lam were concerned. He merely passed on information that he thought may be of interest to the ICAC which came his way from time to time. 359.Even recognizing that a judge does have a residual discretion to exclude otherwise relevant and thus admissible evidence and that a consideration for a judge may be a breach of a constitutional right (see HKSAR v CHAN Kau Tai [2006] 1 HKLRD 400 and the authorities there collected), the issue of the exercise of the judge's discretion simply did not arise on facts of this case. It is noteworthy, particularly given the intensity with which the defence cases were advocated, collectively and individually, that there was no submission to the judge that this was an appropriate case in which his discretion should be exercised in their favour. 360.The second point, that in §14.7, submitted that the judge took into account statements made outside of the period of the conspiracy which "... have no bearing whatsoever... " on the conspiracy. It is correct that the statements made by Lam to Mr Nattrass were made on 30 August 2004, well outside the period charged in the conspiracy which was said to have subsisted between 11 and 17 July 2004. Conversely, they certainly had a bearing on the conspiracy: they demonstrated Lam's involvement in it. 361.The submission failed to appreciate the use to which the judge indicated he was able to put this evidence. The judge specifically stated at §417 "Further, evidence admissible against [Lam] only is the conversation with Aaron Nattrass on 30 August 2004...". It is quite clear that the judge was aware, correctly, that he could not use, as evidence to prove the conspiracy against the co-conspirators, whatever Lam said to Mr Nattrass unless it had been said in furtherance of the conspiracy. It is equally clear that the judge regarded this evidence purely as evidence of Lam's knowledge or state of mind at the time the conspiracy existed. He was certainly entitled to take into account, for that purpose, such statements as he found Lam had made to Mr Nattrass at whatever time, whether within or without the period of the conspiracy. 362.My view accords with that of the Chief Judge, that this is not an appropriate matter in which this court should interfere with such a fundamental finding of the judge. 363.Without ignoring the rest of his evidence, the first feature of Mr Nattrass's evidence which is striking is that at a dinner party at Egan's flat on 30 August 2004 at which Lam was present, Lam indicated to Nattrass in the course of conversation that he, Lam, regarded Mr Massie as weak, that Mr Massie should not have cooperated with the ICAC by surrendering the files in the habeas corpus application but instead should have claimed professional privilege and caused the files to be sealed. That is an aspect of the evidence which the judge was entitled to take as consistent with, and supportive of, Lam's earliest intervention when he overrode Massie & Clement's proposal to write to the ICAC, being of the view that it was an inadequate course of action. 364.The second singular feature, is his testimony that Lam had asked him, Mr Nattrass, to tell Mr Massie not to disclose to the ICAC that he, Lam, had told Mr Massie that Becky was in protective custody at the time when he initially had referred Mandy to Massie & Clement, on 13 July 2004. The judge having accepted that Mr Nattrass was telling the truth about the conversations between him and Lam, this is direct evidence that, from the very outset, Lam knew all of the proceedings - not just the habeas corpus application - to be spurious. 365.The third feature of note is the evidence of Mr Nattrass that Egan had told him that "... Lam would have Massie & Clement sacked and get another firm of solicitors to do the case the way he wanted it done...", which is supportive of the statement by Egan in his telephone call to Mr Clement on 13 July. The Grissini lunch (Ground 15) 366.Notwithstanding the submissions made in ground 15, I agree with the Chief Judge’s summary, at §§287-289, and his view that the evidence flowing from the Grissini lunch provides further evidence, and support for the judge's finding, of the extent of Lam's involvement in the conspiracy. In §332 of the Reasons the judge correctly reminded himself that “The content of the conversation at the Grissini lunch is admissible against [Lam] only.”, just as we have seen that he did in regard to the evidence of Mr Nattrass. 367.A similar submission concerning the judge’s supposed failure to take evidence into account was made on Mandy’s behalf. I do not propose to repeat what I said in that connection at §§325-328 above. I reject this submission, too. 368.A singular feature relating to that lunch which should be borne in mind is the evidence that, on that day, Lam was appearing in a trial in the District Court in Wanchai: despite having arrived “around 1.10 pm”, spent “half an hour” having lunch with Ms Reimer and Mr Yeung, and needing to be back in Court, across the road, by 2.30 pm, Lam still went to the FCC to meet Egan. Although Egan stated that that meeting had nothing to do with the habeas corpus application, the judge rejected Egan’s evidence. Other grounds of appeal 369.Ground 1 submitted that the basis for Lam’s conviction on charge 1 was fundamentally flawed, the main contention being that the offence charged was one unknown to law. The Chief Judge has dealt with this issue and I do not propose to repeat what he has said. Insofar as the submission is made in support of this ground that "The Prosecution accepted and alleged in charge 1 that the means by which access to... Becky was sought to be secured was by way of an application for a writ of habeas corpus" I would emphasise what I said in §316, that this was but one of the means resorted to by the conspirators to achieve their object. That application was designed to gain access to Becky to influence her against cooperating with the ICAC, not for her benefit or to protect her interests. 370.Ground 2 asserted that the judge incorrectly drew inferences and provided what are said to be examples, whilst Ground 3 contended that the judge’s approach to his assessment of Becky's credibility was flawed: I have already expressed my view on this when dealing with a similar submission made on Mandy's behalf. Once the judge accepted the evidence of the prosecution witnesses, particularly Becky and Mr Nattrass, which he did properly in my judgment, then he was entitled to draw the inferences which he did. He demonstrated that he was fully aware of the circumstances in which an inference adverse to an accused person may be drawn (see KWAN Ping Bong & Anor v R [1979] HKLR 1, PC and TANG Kwok Wah v HKSAR (2002) 5 HKCFAR 209 §§18-25). 371.Ground 4 asserted an imbalanced analysis of Frankie Chung’s evidence and particularly the judge’s "finding" that Frankie Chung was a co-conspirator in charge 1. It may well be that Frankie Chung did deny, in his evidence, being one of the conspirators but that is no bar to the judge’s finding, on the evidence as a whole: evidently he did not accept that aspect of Frankie Chung's evidence. The fact that he chose not to accept one facet of a witness's evidence is no bar to his accepting other evidence from that same witness: if support for this proposition be needed then the observations of Keene LJ, giving the judgment of the court in R v Cairns [2003]1 Cr. App. R 38 at §35 are apposite:
372.Where a judge decides that it is appropriate to adopt such an approach he will then consider the evidence which he accepts with an appropriate degree of caution: it is clear from the Reasons that the judge was fully alive to Frankie Chung's shortcomings as a witness and the fact that he was testifying under an immunity. The fact that the judge also found that he was a co-conspirator, which, it will be remembered, was alleged in the particulars of the charge, is a fact that redounded to the benefit of all of the accused resulting, as it plainly did, in the judge approaching Frankie Chung's evidence with due circumspection. 373.It is plain from §§568 and 569 of the Reasons that the judge regarded as particularly telling, as to the nature of Frankie Chung's involvement in these events, the fact that his evidence was that when Becky spoke to him at midnight on 13/14 July he made it clear to her that he would only go to see her if she contacted him thereafter: he related this condition to Derek when they met shortly thereafter. Yet only a few hours later he (Frankie Chung) and Egan went to the ICAC in an attempt to see Becky despite the fact that she had not contacted him again. 374.The judge supplied cogent reasons as to why it was that he did not accept the truthfulness of Frankie Chung’s diary entry to the effect that Becky had indicated she "wanted to escape from the evil power of the ICAC". In addition to the judge’s observations, that entry was at odds with an insistence that she contact him again if she wished him to help her to do that very thing. 375.Grounds 5 and 7 related to Lam's knowledge of the bogus nature of the events and his state of mind. The evidence outlining the basis of Lam's knowledge as well as the issue of conflict of interest has already been dealt with: with respect, these grounds appear to misunderstand the effect of the judge's finding concerning Mr Nattrass's evidence, as already discussed. 376.Ground 6 suggested that the only way Lam could have learned of Becky’s state of mind was from Mandy and, indirectly, Frankie Cheung. That ignores the fact that Derek was Lam's client; that the judge found that the conspiracy was put in place for Derek's benefit; that the evidence of Derek's relationship with Becky, which even if his description of her as his "intimate girlfriend" was an exaggeration, was sufficient to enable him to describe her as "fragile"; that, on what was apparently Derek’s first visit to Lam, they had had a meeting in excess of an hour in Lam’s office before Mandy even arrived there; and the evidence that there had been a reference by Lam to Becky being in "protective custody" when passing on Mandy to Massie & Clement as a client, showing the state of Lam’s knowledge. 377.Ground 8 alleged that the judge assured counsel that he did not intend to rely upon “the fact and frequency” of telephone conversations between Lam, Egan and Hsu without evidence of the content of such calls. The reality is that no such assurance was ever given by the judge: that emerges clearly from the record of the trial. Given the highly probative nature of the evidence, such an undertaking or assurance by the judge would have been extraordinary. 378.This undertaking was identified on behalf of Lam as having occurred "in the course of the closing submissions of counsel for Mr Egan". After listening to the recordings of the closing speeches by all counsel, the only exchange between Mr McNamara, who appeared for Egan at trial, and the judge which bears any relationship to this ground, and then only tangential, occurred when Mr McNamara was dealing with an aide memoire which related to a series of telephone calls which the prosecution contended showed a "triangular exchange" between Lam, Egan and Carmen Hsu. The exchange was in these terms:
379.That indication by the judge met with an appreciative response from Mr McNamara to the effect that he was pleased to hear that, because that was the correct approach to adopt. This ground was misconceived. 380.Ground 9: as already discussed, the mere fact that the judge did not mention in the Reasons the specific portions of evidence set out in support of this ground means neither that he failed to take them into account nor that he was unjustified in making the criticised finding. The portions of evidence relied upon were before the judge and there is simply no indicator whatsoever that he failed to take them into overall account. 381.The thrust of ground 10 was to criticise the style of the judge’s rendering of the Reasons, criticism which finds itself repeated in a different sense in ground 18 and, in gratuitous terms, in §2.9 "... insofar as the relevant paragraph is comprehensible... "; in §5.1 "this proposition, insofar as it is comprehensible..."; and in §14.6 "the judge's remarks in paragraph 579... are incomprehensible...". 382.I accept that there are passages in the very lengthy reasons from which the judge's approach or reasoning does not emerge as readily as perfection may desire but as a majority of this court, differently constituted but of which two of us were members, observed in HKSAR v HO Ka Keung CACC196/2007, unreported:
and, without adopting a meretricious approach
The observation in Singh is particularly apposite given ground 13, below. 383.As Mortimer V-P, in giving the judgment of the court in HKSAR v Kwok Chi Wah [1999] 1 HKLRD 481 noted, at 486D-E:
384.In particular in regard to ground 10, the contention in §10.1 that Lam never sought to influence Mr Clement regarding the instructions given to him by Mandy chose to ignore the immediate attempt to countermand Mr Clement’s proposed course of action – writing a letter to the ICAC. 385.The twelfth ground detailed what were said to be "a number of significant errors of fact". What was meant by §12.1 is, with respect, unclear; the judge's finding referred to in §12.2 was factually correct - what seems to be intended by this ground was that that finding should have been qualified in some way; §12.3 could not have been, on any reading of the Reasons, a finding of fact by the judge but purported to be a rehearsal of Mr Wilson's submission, albeit perhaps an erroneous rehearsal; §12.4 was not a statement of the evidence but a conclusion of the judge which, let it be said, was one to which he would inevitably have been driven on the evidence; the complaint in §12.5 was one of semantics; that in §12.6 occurred during the sentencing process, not as part of the judge's reasoning process for reaching the verdict he did. 386.The character direction given by the judge formed the basis of ground 13. The complaint was that the judge limited the effect of the credibility limb of the direction to an accused who has testified, ignoring the applicability of the direction to out-of-court statements made by an accused. What the judge said was:
387.In my view it is clear that the judge, when using the emphasised phrase, appreciated the effect of the credibility direction even where an accused elected not to testify: to hold otherwise would render that phrase otiose. It may well have been preferable to have set that out in terms which would have avoided this even being raised as an, albeit unsuccessful, ground. See, in any event, the observation in Singh §382 above, which is particularly pertinent given the judge’s indication that he bore in mind the "stations in society" of all the accused. 388.It is correct that, as asserted in ground 16, the judge failed to return to a conflict he perceived as existing between what Lam is reported as saying at the Grissini lunch and what he had said to Mr Nattrass. Like the judge, the ground of appeal does not identify the purported discrepancy which is asserted to “…go to the core of the defence…”. It is not our function to speculate on what it was the judge had in mind. That he perceived there to be a “conflict” demonstrates that he was aware of it and applied his mind to it even if, in the course of a set of Reasons running to 679 paragraphs, he overlooked his indication that he would return to it. The judge adequately evaluated all of the evidence: it follows that he must have been of the view that, whatever the “conflict” may have been, it did not affect any of the material findings he was to make. 389.Ground 17 suggested that "It would appear to be implicit... that [the judge] found that Andrew Lam was party to the allegedly false affirmation of Mandy....". In my view, no such conclusion is justified on a sensible reading of the Reasons. 390.Contrary to ground 18, the judge was fully aware of the onus and burden of proof. He gave himself, as unnecessary as it may have been to do so, impeccable, concise directions at §§547 – 551. It is correct that he spent some time detailing the evidence he found proven and applying it to the case against Lam: that was a course he followed in respect of each accused. It cannot be gainsaid that he had been made abundantly aware of the suggested inadequacies in the prosecution case, by experienced counsel who addressed him at considerable length at both the conclusion of the prosecution case and in final submissions. In real terms, this is another complaint concerning the judge’s style of expression, with which I have already dealt. 391.Ground 19 complained of the judge's refusal to find that there was no prima facie case for Lam to answer at the conclusion of the prosecution case. The judge correctly set out in §364 the principles which are to be applied to such a submission, which emerge from R v Galbraith (1981) 73 Cr. App. R 124. He provided detailed and compelling reasons for not accepting the submissions, which were made on behalf of all of the accused and not only Lam. The judge went into considerable detail for his ruling in respect of each accused on each of the charges he or she faced, as appears from the Reasons. Indeed, it was at this stage that he dealt with the problem which he perceived arising as a result of the person who interpreted Mandy’s affirmation to her from English into Cantonese not having been affirmed. He was right in making the findings that he did. 392.The final ground, ground 20, asserted that the conviction is unsafe and unsatisfactory. For the reasons which I trust have emerged from dealing with each of the grounds advanced, I do not accept that to be the case. 393.Apocalyptic alarms have been rung concerning the effect on the legal profession as a whole consequent upon Lam’s conviction: this, it was suggested, because the convictions are predicated upon the existence of a duty by a solicitor (and, by extension, a barrister) being obliged to satisfy himself as to the genuineness (for lack of a better word) of a client’s claim. If a client makes an assertion then why, it is asked, should the professional not rely on those instructions - excluding, presumably, the patently absurd? 394.That is a question which may need to be addressed at another time for that was not the prosecution case, nor was it the basis upon which the judge approached his decision making process. The prosecution case was simple – that there was, from the very outset, an agreement between the named conspirators to pervert the course of justice by influencing Becky against providing assistance or information to the ICAC. To paraphrase the judge’s appreciation of the prosecution case when considering that against Egan, they were all “in it” from the very beginning. 395.The conduct of Lam, so the judge found, went far beyond the conduct of a solicitor acting on behalf of a client. There was no suggestion that there is a duty upon a solicitor or, come to that, a barrister to whom different considerations apply, to have a belief in the validity or truth of his client’s proceedings. 396.An analogy is to be drawn with the situation where a law enforcement agency is proscribed by solicitor/client privilege from monitoring transactions in respect of genuine solicitor/client transactions but such a restriction does not apply where the solicitor/client relationship is merely a sham to conceal unlawful conduct on the part of the solicitor: see Secretary for Justice v SHUM Chiu and Others [2008] 1 HKLRD 155. (For the decision of the Appeal Committee of the Court of Final Appeal see FAMC 5,6,42 and 43/2007.) 397.Consequently, the views expressed in this judgment will have no adverse effect upon the honest solicitor carrying out the lawful instructions of a client. CACC248/2006: the fourth applicant, and CAAR8/2006: respondent, Egan 398.Egan was charged jointly with the other applicants in respect of charge 1, the charge of conspiracy to pervert the course of justice: he was the only one of them who was acquitted after trial, the judge finding at §637 of the Reasons:
399.The prosecution seeks to review that acquittal, contending, primarily, that the judge erred in law when he held, without providing reasoning, at §365 of the Reasons:
400.Egan further was jointly charged with Lam on charge 3, a charge of conspiracy to disclose information about the identity of a participant [Becky] in the witness protection programme: they were both acquitted after trial: there is no application for the review of that decision. He was convicted, after trial, on charges 4 and 5, two charges of attempting to disclose information about the identity of a participant in the witness protection programme: he seeks leave to appeal those convictions. I propose to deal with the Application for Review first. Charge 1 (CAAR8/2006) 401.In respect of the first charge the judge set out at §368 of the Reasons the terms of the statutory offence of conspiracy and considered, at §§369-374 of the Reasons, various aspects of the law of conspiracy. He outlined the underlying theme of Egan's defence in respect of the charge which was that he was merely acting on legitimate instructions; there was nothing on the face of the instructions themselves that required him to call them into question; that he had not joined in a conspiracy at any stage. 402.At §613 judge said:
403.As has already been seen he did draw the inference against the other three accused. 404.After going on to consider Egan's evidence, and rejecting it after concluding that he had not been a truthful witness, the judge expressed himself in these terms:
405.It was unclear to me from the Reasons to what it was the judge referred when he used the expression "knew it was a sham": did he intend to convey everything that was done from the moment Egan first became involved in what the judge found was a conspiracy between the other three accused or did he simply intend to refer to the habeas corpus proceedings? On reading the Reasons, it seemed to me that the judge was saying that he had to consider whether Egan knew everything done in regard to Becky was a sham, which would have the obvious consequence of placing a wider evidential burden on the prosecution. However, in the Case Stated (§13) the judge appears to assert that he limited his consideration to the status of the habeas corpus application. 406.It is clear from §620 of the Reasons that the judge was satisfied, beyond reasonable doubt - which, as Mr Reynolds, who appeared for Egan in this appeal but not below, was at pains to remind us is the requisite standard - that Egan had conducted himself in a manner that demonstrated that he “…must have known, and intended, that his acts would have the tendency of influencing Becky Wong”. The judge had earlier identified this as being the intention required for the commission of the offence of perverting the course of justice and had expressed himself as being satisfied that the evidence established that the other three accused also held that intention. 407.The judge then went on to acquit Egan on the basis that the prosecution had failed to prove that Egan knew or believed that Becky was not unlawfully detained and did not seek release from custody of the ICAC, observing that he could not be sure that Egan "…knew [the habeas corpus application] was a sham". 408.The effect of the judge's finding, as emerges from the Reasons, is that he made no further findings concerning Egan. In view of the order that I would propose, it is not appropriate for me to make any further comment on what findings the judge ought to have made. 409.The judge made two further oblique references to Egan's lack of participation in the conspiracy - at §632 that “The result of involving the press was achieved notwithstanding [Egan] was not in the conspiracy" and at §674 "I find that he did intend to disclose when he made the disclosure to Magdalene Chow albeit not within the conspiracy of the first charge" but it is clear that, rather than individual findings of fact that Egan was not a party to the conspiratorial agreement as has been suggested on Egan's behalf, those were observations consequent upon the basis of his earlier acquittal of Egan. 410.In the Case Stated, after summarising the evidence the judge said the following:
411.The point is made on Egan's behalf in response to the Case Stated that the "true basis" for the acquittal is wider than that set out in §20 of the Case Stated: reference is then made to the contents of §§13, 15 and 20 of the Case Stated. 412.I do not agree. It is quite clear from §620 of the Reasons, set out at §109 above, that the reason why the judge acquitted Egan was because (a) he had found that knowledge or belief that Becky was not unlawfully detained and did not seek release from custody of the ICAC was an essential element of the offence and (b) he was not satisfied that that had been proven by the prosecution. 413.§13 of the Case Stated adverts to a material fact – his inability to make the finding that Egan knew the habeas corpus proceedings to be a sham - which, obviously, may have helped the judge arrive at his decision as to whether the prosecution had proven the perceived element of the offence. It is not a separate basis of acquittal. §20 is simply a consequential consideration of the basis of the acquittal. 414.It seems to me that, with respect, the judge confused what it is necessary for the prosecution to prove as being one of the essential elements of the offence with evidentiary considerations which he need address in arriving at that proof. The judge had to be satisfied that the prosecution had proven both the actus reus and the mens rea of the offence. 415.The existence of a conspiracy is sometimes proven by the evidence of one conspirator against his co-conspirators; sometimes by a confession by a conspirator admitted into evidence against him; sometimes solely by the proof of a series of facts from which the tribunal is invited to draw as the irresistible inference the existence of the conspiracy; sometimes by an amalgam of the three. This trial fell into the fourth category, for there was evidence from the named co-conspirator, Frankie Cheung, as well as proof of a series of facts upon which the prosecution relied. 416.A conspiracy is simply an agreement between two or more persons to perform an unlawful act or a lawful act by an unlawful means, as the judge rightly recognized. The actus reus of the offence is the agreement itself, the mens rea being the intention of the particular conspirator to be a party to the agreement and “…to play some part in the agreed course of conduct in furtherance of the criminal purpose which [it] was intended to achieve.” (R v Anderson [1986] AC 27 at 39E). 417.In this case, the prosecution alleges that the unlawful act which the conspirators agreed to perform was that of perverting the course of justice. Perverting the course of justice is a substantive offence which consists in the doing of an act which has a tendency to pervert the course of justice or perform an act with an intent to pervert the course of justice (R v Rogerson & Ors 107 ALR 225 at 230). The gist of the offence is conduct which may lead, and is intended to lead, to a miscarriage of justice whether or not a miscarriage actually occurs (R v Machin [1980] 1 W.L.R. 763 at 767). The use of unlawful means is not an essential ingredient of the offence: the gist of the offence lies in telling a potential witness what he should or should not say - or, I would add, intimidating a potential witness - with the intention of influencing his evidence, not in the means adopted (R v Toney [1993] 1 W.L.R. 364 at 368 - cf. R v Kellett [1976] 1 QB 372 at 388D). 418.Neither of these encapsulations envisages the incorporation, as an essential element of the offence of conspiracy to pervert the course of justice, the necessity to prove, in the instant case, the state of knowledge or belief of the conspirators regarding the nature of Becky’s remaining with the ICAC and any desire for release, as opposed to their intention. At the risk of stating the obvious, proof of knowledge or belief may aid the proof of intention. 419.The prosecution case, as I understand it, was not that the act that had the tendency to pervert the course of justice which the conspirators would perform was the bringing of the habeas corpus application as has been the focus of much argument, but it was that of influencing her against providing assistance or information to the ICAC. To do this they needed to gain access to her: the habeas corpus application was one method of doing so. 420.If they succeeded in so influencing Becky the prosecuting authority would be deprived of the evidence of a material witness, to its detriment. They intended, the prosecution asserted, to perform that act with the consequence that the course of justice be perverted. It was the act of influencing her against providing assistance or information to ICAC which would have the tendency to pervert the course of justice. For that reason it did not matter whether Becky was being held against her will or not, nor did it matter whether she was seeking release from the ICAC or not: the conspirators’ intention was to influence her against providing assistance or information to ICAC and that could be done irrespective of her status or wishes. 421.When the prosecution alleges a conspiracy it is incumbent upon it to identify, amongst other things, the parties to the agreement and the object/s (or term/s) of the agreement. It is only the object/s of the agreement which need be proved in order to secure a conviction. See Thomas L.J. in R v K [2005] 1 Cr. App. R. 408 at §33:
yet this is precisely what it appears from §365 of the Reasons the judge did in this matter. 422.Thomas L.J. continued at §34
423.Since Landy (1981) 72 Cr.App.R. 237 the conventional method of particularising a charge of conspiracy, especially conspiracy to defraud, is to identify overt acts on the part of the conspirators, or some of them, upon which the finder of fact may rely in order to draw the inference of the existence of the conspiracy itself, those overt acts then appearing in the ‘particulars’ of the offence. It is unfortunately so that the drafting of the particulars of a charge of conspiracy may fail to clearly identify and distinguish between (i) the object/s of the conspiracy; and (ii) those overt acts on the part of the conspirators which tend to prove the existence of the agreement between them. 424.In many instances, as in this, there will be a close relationship between the object/s and those acts which lead to the inference of the conclusion of the agreement. It is the lack of careful identification and separation of the two concepts which frequently gives rise to a misunderstanding as to just what it is the prosecution is required to prove in any given case. 425.The charge in the instant case, however, was an example of clarity: the objects of the conspiracy, or what the conspirators agreed to set out to achieve, are clearly identified as being (i) to gain access to Becky Wong; (ii) to ascertain what she had said to the investigators of the ICAC; and (iii) to influence her against providing assistance or information to the ICAC. 426.The particulars of the charge then identify four specific overt acts by one or more or all of the applicants as being the means whereby the objects of the conspiracy were sought to be attained. What the judge had to be satisfied about was that each applicant, for him/herself, had agreed with one or more or all of the other applicants that they would (i) gain access to Becky Wong; (ii) ascertain what she had said to the investigators of the ICAC; and (iii) influence her against providing assistance or information to the ICAC: that each applicant intended that the offence would be carried out: that, in order to achieve those objects, one or more or all of the acts set out in paragraphs (a) to (d) of the particulars of the charge would be performed. 427.In Rogerson & Ors, supra, at 230 Brennan and Toohey JJ said:
and, further:
428.At 232 they said:
429.It is important to appreciate the fact that Rogerson & Ors recognizes that two situations exists: either (a) the conspirators know that the act which they intend to perform will have a manifest tendency to pervert the course of justice or (b) they agree to perform an act which they intend to have that effect. This was emphasised when the Court went on to say:
and, again, at 234:
430.Bearing in mind the act which the prosecution alleged the conspirators agreed, it was necessary for the judge to be satisfied that that act was intended to be performed so as to pervert the course of justice, for their acts, by themselves, would not have had a “manifest tendency” to pervert the course of justice. That intention, of course, is precisely what the judge did find in respect of each of the applicants. 431.In order to arrive at his finding the judge was entitled to look at the conduct of each applicant (and all of them, within the limits of the co-conspirator rule) including the conduct alleged in the four particularised items. If the judge was satisfied that the evidence as a whole established, beyond reasonable doubt, the irresistible inference that any particular applicant was a party to the agreement and had intended to play some part in the agreed course of conduct in furtherance of the criminal purpose, then it was open to the judge to convict that applicant. 432.What the prosecution did not allege was that the four stipulated overt acts were objects/terms of the conspiracy: it was not the prosecution’s case that they specifically agreed, for example, that one or more or all of them, in pursuance of the conspiracy, would launch habeas corpus proceedings. Indeed, the evidence shows that those proceedings were launched well after the conspiracy had commenced. Those proceedings were not alleged to be, and nor were they, an element of the offence (in the sense of being an essential object/term of the agreement) but merely one of the overt acts upon which the judge was entitled to rely in order to be satisfied that he was able to infer the existence of the conspiracy. 433.It is for this reason that whether Egan knew or believed that Becky was not unlawfully detained and did not seek release from custody of the ICAC or, consequently or otherwise, knew that the habeas corpus proceedings were a sham, were not individual issues about which the judge need be satisfied, although, if he were able to be satisfied about either of those issues, his task of inferring Egan’s intention may well have been made the easier: the fact of which the judge had to be certain was that it was his intention, in common with the co-conspirators, to gain access to Becky Wong; to ascertain what she had said to the investigators; and to influence her against providing assistance or information to the ICAC with the intention that, as a result of that influence, she would not provide assistance or information to the ICAC, and the course of justice would thus be perverted. This is precisely what he found Egan’s intention to be, as well as that of the other three applicants. 434.It is self-evident that if the judge was satisfied that a particular applicant indeed knew or believed that the habeas corpus proceedings were a sham, that would facilitate the drawing of an inference against that applicant: but it does not follow that the inference could not be drawn from other evidence. 435.I accept that, in a given factual situation, and, perhaps, particularly where a barrister is involved - a matter to which I shall return - it may not be possible for a finder of fact to make a finding in a particular case in respect of proof of mens rea absent being able to make a finding of knowledge or belief. That, however, does not elevate the knowledge or belief of the party to the status of an element of the offence: what it does is to create an evidentiary hurdle for the prosecution. 436.I am satisfied that the judge did err in holding that the knowledge or belief that Becky was not unlawfully detained and did not seek release from custody of the ICAC was an essential element of the offence. 437.Considerable time was occupied during the hearing of this appeal in minute dissection on behalf of the applicants of each of the three described elements of the object of the conspiracy and, to an extent, of the overt acts pleaded in the particulars of offence. Whilst, obviously, such an approach is not necessarily inappropriate, there are times when it has the effect of obscuring the wood for the trees. This seems to be one such. It was the totality of the evidence from which the judge would draw inferences and upon which he would base his decision. 438.In general terms it was argued that there is no property in a witness: as a consequence it was lawful to attempt to gain access to Becky; it was lawful to ascertain, or attempt to ascertain, what she had said to the ICAC; and it was lawful to ensure that she was aware that she was under no obligation to co-operate with the ICAC and could refuse to do so should she so wish. It was specifically urged upon us, in regard to the overt act of the application for a writ of habeas corpus, that, as such a course was one provided by law, the use of that procedure could not constitute an unlawful means of attaining the object of the conspiracy, absent a perversion of the habeas corpus process itself. 439.Authority and counter-authority were proffered in support of each of these propositions which I do not believe it to be necessary to traverse for none is, to my mind, controversial or, by itself, an incorrect statement of legal principle. But what was not reflected by any of the individual arguments advanced was that the intention of the conspirators was to be inferred from their conduct, from the manner in which the, superficially legitimate, means were employed or exploited. It is from the cumulative effect of the individual actions that the true intention appears. And that true intention, as the judge correctly found, on the evidence as a whole, in respect of each of the applicants, including Egan, was to influence Becky against providing assistance or information to the ICAC. 440.As Stephenson L.J. observed when giving the judgment of the Court of Appeal in Kellett, supra, at 388D:
441.In regard to the second question, considerable reliance was placed on the fact that, as a barrister, Egan was under a duty to give effect to his instructions according to The Code of Conduct of the Bar, the relevant provision of which the Vice President has set out at §108 above. That, too, is non-controversial: I did not understand Mr Wilson to dispute that. 442.I readily acknowledge that it must be that that duty has the effect of introducing a specific consideration in the case of Egan, quite separate and distinct from the other applicants. It is unclear from the judgment whether this was the, or a, factor which the judge took into account in arriving at his decision that knowledge or belief that Becky was not unlawfully detained and did not seek release from custody of the ICAC was an essential element of the offence and that before he could convict Egan he had to be satisfied that Egan knew the habeas corpus proceedings to be a sham. 443.Where a judge is required to consider the question of the intent of a barrister appearing on a particular charge before him in circumstances where that barrister’s professional duty is engaged, it may well be that the judge would find himself unable to determine the intent unless he is able to make a specific finding as to that barrister’s knowledge or state of mind. In such a case it may well be that the judge would adopt the attitude that the barrister's discharge of his professional duty raises a doubt in his mind as to the barrister’s intent. However, whether that situation arises will be dependent upon the nature of the charge and upon the evidence presented in that particular case. 444.Because I would refer this matter back to the judge to reconsider his decision in the light of what I view it as necessary for the prosecution to prove to be the essential elements of the offence, it would be inappropriate to express any view on whether the judge was correct in finding that Egan must have known, and intended, that his acts would have the tendency of influencing Becky Wong. If the judge were unable to be satisfied as to that issue it would be open to him to acquit, if that caused a reasonable doubt in his mind as to Egan’s intention; or, based on the totality of the evidence as a whole, to convict. 445.Question 3 appears to be intended to address the judge's finding that if Egan had mixed motives, that is that he believed both that Becky was being held against her will and that he also intended to influence her into not co-operating with the ICAC, he still was entitled to be acquitted (§612 of the Reasons and §21 of the Case Stated). 446.With respect to the judge it appears that he has failed to recognize the important distinction between Egan's intention and his motive when he made this finding.
per Dickson J in Lewis v The Queen 47 C.C.C. (2D) 24 at 33. 447.In reply to a question by the judge Mr Wilson accepted, as obviously he was obliged to do, that if the evidence were that Egan was solely motivated by the belief that Becky was being held against her will, that would be the end of the prosecution (§610 of the Reasons), for Egan could not have had the required mens rea for the offence. 448.In my judgment, whether Egan’s motive for making the habeas corpus application was because he genuinely believed that Becky was being held against her will or whether he simply acted unthinkingly in terms of the instructions given to him, does not absolve him from criminal liability provided it is proved that he possessed the requisite mens rea of the intent to influence Becky into not co-operating with the ICAC. I am unable to discern any reason, in law or in logic, why, in such circumstances, motive and intent could not coexist. 449.I find support for this view in Kellett, supra, where, at 392, Stephenson L.J. said:
450.The fourth question as to whether the judge had erred in not convicting once he had found that Egan intended to influence Becky against providing assistance or information to the ICAC and, additionally, once he had found that by the 15th July, Egan believed that she was a participant in the witness protection programme must similarly be answered affirmatively. Once the judge found that Egan believed that Becky was participating in the witness protection programme, which finding was made at §674 of the Reasons and in my view correctly so, not only did the entire substructure for the habeas corpus proceedings cease to exist, but persisting in prosecuting those proceedings was the clearest possible evidence supporting the drawing of the inference in regard to Egan's intent - further supported, it may be said, by his not even seeking the briefest of adjournments to take instructions as to further courses to be followed. 451.Accordingly, I would answer each of the questions posed by the prosecution in the Application for Review in the affirmative. 452.I am satisfied that, following upon the decision of this court, differently constituted, in Secretary for Justice v WONG Sau Fong [1998] 2 HKLRD 254 at 265J-266C, we have the power to refer this matter back to the judge with an order that the trial be resumed. Despite the lapse of time since this offence was alleged to have been committed, I adjudge that to be the appropriate course in all the circumstances. Consequently I would set aside the acquittal and remit the matter to the trial judge for the trial to resume in accordance with the clarification now made as to the elements of the offence alleged in charge 1. CACC248/2006: charges 4 and 5 453.I find that I am unable to agree that the application in respect of these two charges should be allowed. The format in which the Re-Amended Perfected Grounds of Appeal filed on behalf of Egan have been presented permits of a more generalised approach in dealing with them although individual comment on some remains to be made, not least as a courtesy to counsel. 454.The Vice President has set out at §125 the relevant provisions of s. 17 of the Witness Protection Ordinance, Cap. 564 and also in some detail, the circumstances surrounding the commission of these offences. 455.The first important issue seems to me to be whether or not this court, effectively, ought to set aside the judge's finding that, at the time the disclosures were made Egan believed Becky to be a participant in the witness protection programme. 456.That Egan believed Becky to be a participant in the witness protection programme was a finding of fact which the judge made, having heard the evidence from Magdalene Chow, which he accepted, and having heard Egan's evidence, which he rejected. It is true that throughout his evidence Egan denied ever having believed Becky to be voluntarily with the ICAC: the judge rejected that evidence in terms. That was a course which the judge was entitled to take. 457.He provided compelling reasons, particularly for rejecting Egan's evidence. The judge said, at §674:
458.Thus it was that the judge, in addition to considering all of the evidence, was relying upon three specific aspects of the evidence which he set out: first, that during his first visit to the ICAC Egan in effect had conveyed to Daphne Lim that he realised that if Becky was not being detained there by the ICAC then she was being "kept" by them somewhere else, the obvious implication from that being that she was co-operating with them; secondly, he communicated a similar appreciation of the situation in what has been called his complaint letter; and thirdly, he had indicated to Mr Ryan that he believed Becky was in a safe house but, that notwithstanding, he had instructions that she wished to leave. 459.Moreover, the judge had before him the transcripts of the habeas corpus proceedings, including the appeal during which the following exchange occurred:
460.Although Egan went on to qualify that statement by reference to his “long, bitter experience” with the ICAC it is clear that he was not suggesting that the information provided to the court that Becky was in the WPP was in any way untrue. Such a stance is wholly inconsistent with his professed disbelief. 461.The judge went on to say:
although it is not entirely clear what it was he intended to convey by inserting the Latin expression. Be that as it may, it was a finding of fact, on evidence that he found credible, which he was entitled to make. 462.Just as in the case of the evidence given by Mr Nattrass where I concurred with the Chief Judge, my view is that this is not an appropriate matter in which this court should interfere with such a fundamental finding of the judge. 463.This is a convenient point to mention Grounds 5, 7, 8, 9 and 10 which all complained of a failure on the part of the judge to evaluate the evidence of various witnesses. At the risk of repeating myself, the judge demonstrated that he was aware of the issues before him and traversed the important aspects of material witness's evidence during the course of his very lengthy Reasons. No doubt there may be other aspects of the evidence which Mr Reynolds would have preferred be included in the Reasons: that they were not does not mean, as I have already said in a different context, that that evidence was ignored. The Reasons, overall, were sufficient. 464.The judge set out, at §469 of the Reasons, the three questions he felt it was necessary for him to answer in order to decide whether Egan was guilty of these offences. The first, whether Egan believed that Becky was in the WPP was, in my view, correctly answered by the judge in the affirmative. Mr Wilson submitted that this was an unnecessary question for the judge to have posed. It may have been but I do not regard it as necessary to decide that issue as, if it were an unnecessary question, it was one which raised the barrier of proof and thus was to Egan's benefit. 465.The second question which the judge addressed was whether, possessed of that belief, Egan did disclose the identity of Becky as a participant in the WPP. This effectively, formed the basis of ground 4 of the grounds of appeal. Again, in my judgment, the judge was correct when he answered this question affirmatively. 466.The judge set out Magdalene Chow's evidence at §§272, 273 and 276 of the Reasons (quoted by the Vice President at §140 above). At §§661 and 662 of the Reasons (quoted at §143 above) the judge found, in respect of each of the conversations which Magdalene Chow described as having had with Egan, the only irresistible inference to be drawn from what Egan said was that Becky was a participant in the witness protection programme. In this sense he echoed the testimony of the witness Magdalene Chow who said: “…from the conversation between Mr Egan and me that afternoon that was the only logical and reasonable inference I could draw.” It is of course necessary to look at just what it was the judge found Egan to have said in those conversations and to have regard to the context in which it was said. The judge conducted that exercise. For my part, I agree with the inference that he drew in each instance. 467.The question as to whether what he found Egan did amounted to an intention to disclose for the purposes of s. 17 remains. Although the judge did not specifically use the verb "disclose " at that stage, first, it is implicit from the inference that he drew in respect of each conversation and, secondly, he made the specific finding at §674:
468.In my judgment, it is the intention of the accused which is determinative – did he intend to “disclose information”. It is plain on the facts, as the judge found, that by the time he spoke to Magdalene Chow, Egan believed Becky to be in the witness protection program: he made such overt references during the conversations that he had with her that, on each occasion, she could not have failed to have concluded that Becky was a participant in the WPP: on each occasion he intended to disclose information, in the ordinary, everyday, meaning of that phrase, concerning his knowledge of Becky’s status – and it is against such disclosure that the legislation is aimed. 469.The fact that one may disclose information on more than one occasion, to the same person, does not prevent the person making the statement from having intended to disclose that information. Nor does it matter if the information is the same – which, in any event, it was not, according to Magdalene Chow’s evidence – if the speaker intended to disclose the information. That the information disclosed may already be known to the listener does not affect the intention of the speaker: if a speaker intends to disclose information to a listener which, unbeknown to him, the listener already knows, it surely cannot be that the speaker would be absolved from criminal liability. 470.The third question on this topic which the judge addressed was whether Egan intended to commit the offence. Despite Egan’s denials, the judge found that he had done so: that was the only inference he could draw once he had rejected Egan’s evidence. 471.There remains the issue of “identification”, of whether the judge was correct in finding that it was Egan who imparted the information to Magdalene Chow. This arose particularly in the context of her having said that the person who spoke to her had turned away to smoke a cigarette: there was unchallenged evidence that Egan did not smoke: Mr Clement, who was also at Court, although, according to his evidence, not continuously in Egan’s company, is a smoker. A further factor is that Magdalene Chow testified that the person who had spoken to her had made reference to “drafting” and to “filing” the habeas corpus application, the argument being that a barrister would not say such things: Mr Clement’s evidence was that he had performed those functions. 472.This issue of identity of the speaker was an issue which was four square before the judge. I unhesitatingly accept that it was an issue which ought to have been addressed in terms in the course of the Reasons, albeit that the judge did review the evidence in general (§§652/653 and 655). Were it but for one matter, I may well have regarded such a failure as fatal to the conviction. 473.That one matter is that Egan accepted that he had spoken to Magdalene Chow and that he had, on his version, made a reference to the Witness Protection Ordinance. The judge was entitled to have regard to that aspect of Egan’s evidence as being supportive of Magdalene Chow’s assertion that it was Egan to whom she had spoken. I am satisfied that the judge was entitled to make the finding he did. 474.I shall refer briefly to the remaining grounds of appeal. Ground 1 submitted that it was inconsistent of the judge to acquit Egan on charge 1 yet convict him on charges 4 and 5. That does not take account of the basis of the acquittal on charge 1: it was a narrow and distinct issue, where the judge found that the prosecution had failed to prove what he thought to be an essential element of that offence. The offences in charges 4 and 5 were entirely separate and distinct in nature from that in charge 1. Wholly different considerations applied. There was no inconsistency. 475.Ground 2 referred to a lack of a finding by the judge that Egan should have believed that Becky was a voluntary participant in the witness protection program. This ignores the judge’s finding at §674 of the Reasons, discussed above. If this ground is to be understood to mean that there was no finding that Becky’s participation was voluntary - presumably as opposed to involuntary - then such a finding is implicit in the judge’s finding that she was a participant in the program. 476.Ground 3 appeared to me to be a differently phrased repetition and extension of what it was suggested should have been considered under Ground 2. The passages from the evidence upon which reliance is placed were before the judge: there is nothing to indicate that he was not fully aware of that evidence. 477.Ground 11 contended that the judge reversed the onus of proof: this ground seems to me to be a re-presentation, differently expressed, of the criticism of the judge’s finding that Egan believed Becky to be in the witness protection program. I do not accept, for the reasons already set out, that that finding may properly be impeached. 478.Ground 13 asserted that the judge erred in a fact and that that error led to the conviction being unsafe and unsatisfactory as a result of the judge rejecting Egan’s evidence. Assuming that there was an error of fact, although the judge’s finding does not seem to me to be entirely clear on this, it was not material and it cannot sensibly be suggested that that was the sole reason why he rejected Egan’s evidence. There is no merit in this ground. 479.Ground 14 complained that the prosecutor did not fully put his case to Egan in the course of cross-examination, that this was “unfair” and resulted in a material irregularity in the trial. It is unrealistic to suggest that Egan was not wholly alive to the nature of the prosecution case, in detail, as it related to him and, indeed, to every one of his co-accused. Egan had been present throughout this long trial. It is recognised in Hong Kong that the decision in Browne v Dunn (1893) 6 R 67 is not an inflexible one (HKSAR v LO Chun Nam (2001) 4 HKCFAR 1). The requirement is that where it is intended to suggest that a witness is not being truthful on a particular point, there should be such cross-examination as will show that this is the proposed course: the record shows that the prosecutor put to him such as was appropriate, necessary and fair in the context of this trial. 480.Ground 15 comprised the catch-all ground that the conviction was unsafe and unsatisfactory. For the reasons which I trust have emerged from dealing with each of the grounds advanced, I do not accept that to be the case. 481.In the event, I would dismiss the application. Hon Ma CJHC : 482.Accordingly, for the above reasons:
483.We will hear the outstanding applications for leave to appeal against sentence and the applications for review of the sentences passed on the 1st and 3rd applicants on dates to be fixed.
Mr Martin Wilson, QC & Mr Roger Beresford on fiat for Department of Justice for the Respondent 1st Applicant – Kanjanapas, Chong Kwong Derek, also known as Wong Chong Kwong – acting in person (absent) Mr Jonathan Caplan, QC, Mr Peter Duncan, SC & Mr Derek Chan, instructed by Messrs Leung & Lien for the 2nd Applicant Ms Clare Montgomery, QC, Mr Graham Harris & Mr Benson Tsoi, instructed by Messrs Pang Wan & Choi for the 3rd Applicant Mr Guy O’L. Reynolds & Mr Raymond Pierce, instructed by Messrs Robertsons for the 4th Applicant Application for leave to appeal to Court of Final Appeal by the 1st and 2nd Defendants granted. Prosecution's application to leave to appeal to Court of Final Appeal granted. Please see FAMC16/2009 to FAMC18/2009 dated 19 May 2009 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACC 248/2006