HKSAR v. Kanjanapas, Chong Kwong Derek and Others

CACC 248/2006
CAAR 8/2006

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)

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BETWEEN

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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)

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BETWEEN

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Before : Hon Ma CJHC, Tang VP & Wright J in Court

Date of Hearing : 7 May 2009

Date of Handing Down Judgment : 21 May 2009

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J U D G M E N T

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Hon Ma CJHC and Wright J:

1.On 12 June 2006, the 1st to 3rd Applicants were convicted in the District Court by H H Judge Fung, CDJ (now Fung J) of the following offences : -

(1)  Conspiracy to pervert the course of public justice (all three Applicants);

(2)  Attempted perjury (2nd Applicant).

There was a 4th Defendant in the criminal trial (Mr Kevin Egan) who was also charged with conspiracy to pervert the course of public justice, but he was acquitted.  He was, however, convicted of two charges of attempting to disclose information about the identity of a participant in the witness protection programme.  For reasons that will presently be identified, Mr Egan has no involvement in the proceedings before us.

2.Following their convictions, on 16 June 2006 : -

(1)  The 1st Applicant was sentenced to 3 years’ imprisonment;

(2)  The 2nd Applicant was sentenced to 2½ years’ imprisonment on the conspiracy charge and 1 year on the attempted perjury charge, the sentences to run concurrently;

(3)  The 3rd Applicant was sentenced to 4 years’ imprisonment.

3.All Applicants applied for leave to appeal both conviction and sentence.  In the case of the 1st and 3rd Applicants, the Secretary for Justice also applied for a review of their sentences under section 81A of the Criminal Procedure Ordinance, Cap.221.

4.Prior to the hearing of these matters before the Court of Appeal in July last year, it was decided by the court that the applications for leave to appeal against conviction would be heard first and, depending on the outcome of those applications, the sentence applications and reviews would be heard at a subsequent time.

5.On 12 February 2009, this court handed down judgment.  The applications of the 1st, 2nd and 3rd Applicants were dismissed (in the case of the 3rd Applicant by a majority).  As for Mr Egan, his application for leave to appeal against conviction was granted and his appeal allowed and the Case Stated proceedings brought by the Secretary for Justice against him were dismissed, also by a majority.

6.The facts and the particular involvement of the three Applicants are amply set out in this court’s judgment of 12 February 2009.  It is pertinent to repeat some overall observations made in the course of the judgment of the Chief Judge : -

“261.  Before dealing with the position of Lam [the 3rd Applicant] 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 : -

(1)  The evidence clearly demonstrates that at no stage did Becky [Becky Wong], a person who was assisting the ICAC with their investigations and who eventually joined the WPP, request any assistance from anyone regarding her release, nor had she given any indication at all that she was being held against her will.  The most that could be said was that when she spoke with Mandy [the 2nd Applicant] on one occasion, her voice was faint or trembling, and she could have sent misleading signals, but this is very far short of evidence to demonstrate that she was in need of assistance or that she was being held involuntarily.

(2)  Becky was of course clearly a crucial witness as far as Derek [the 1st Applicant] was concerned.  She was his secretary and was in a position to give crucial evidence against him.  Derek knew this from the very start.

(3)  And yet, quite extraordinary steps were taken to gain access to Becky : the two visits to the ICAC on 13 and 14 July 2004; the institution and prosecution of the habeas corpus proceedings, and the deliberate and extensive involvement of the media.

(4)  As I have highlighted, Becky eventually became a protected person under the WPP.  Yet, by reason of the steps taken to gain access to her (and in the circumstances, they were done in a very public way), her identity was revealed to the world at large.  The newspaper reports of the relevant events demonstrate this.  The report of Sing Tao Daily on 14 July 2004 makes reference to Becky and her role, although she was not named.  The reports in the SCMP on 16 July and 17 July not only named Becky, but gave details of her role and the fact she was in the WPP.

(5)  It is also to be noted that Becky was a fragile witness.  The evidence before the court revealed that when the habeas corpus proceedings were afoot, she even had second thoughts about whether to continue with her co-operation.”

7.The true nature of the conspiracy was to gain access to a witness, Becky Wong, who was described as “fragile” : in crude terms, to ‘get at her’. The sinister aspect was that the attempts to gain access to Becky Wong inevitably involved an element of intimidation to try to persuade her not to co-operate further or at all with the authorities.

8.The means that were employed to achieve these ends were reflected in the particulars of the charge, namely : -

(1)  The attempts to gain access to Becky Wong by the two visits made by lawyers to the ICAC on 13 and 14 July 2004.

(2)  The launching and vigorous pursuit of habeas corpus proceedings supposedly on the basis that Becky Wong was being held involuntarily, when the Applicants knew that this was simply not the position.

(3)  Connected to the previous point was the use of affirmations that were either false or highly misleading.

(4)  The involvement of the press which had the effect, obviously intended, of revealing to the world at large the identity of a witness who was represented to be co-operating actively with the authorities - and who eventually entered the witness protection programme.

9.It is self-evident that any attempt to interfere with a witness strikes at the very fabric of the administration of justice.  When the attempt involves, as in the present case, intimidation in the form of seeking by quite extraordinary means to gain access to the witness, and a public exposure of that witness with the assistance of the press, public interest demands that a clear message is sent by the courts to reflect the abhorrence of the conduct.

10.With this introduction, we turn to the individual sentences of the Applicants.  The maximum sentence for the offence of conspiracy to pervert the course of public justice at the time of the commission of the offence was 7 years’ imprisonment.

The 1st Applicant

11.The 1st Applicant was not present at the hearing before us, or at the earlier hearing.

12.Without doubt, the 1st Applicant must have been the instigator of the conspiracy – he was, after all, the subject of the criminal investigations into Semtech International Holdings Ltd.  It was he who stood to lose the most from Becky Wong co-operating with the authorities. He would have known just what information concerning him she potentially would have been able to impart to the investigators.

13.The 1st Applicant was fully aware of Becky Wong being a fragile person.  Knowing this, he embarked on a series of attempts to get to her.  There can be no doubt that the various methods employed to gain access to Becky Wong referred to earlier were all done with the 1st Applicant’s express knowledge and approval.  The 2nd Applicant was, moreover, his then girlfriend: he used her to contact Becky Wong in the various ways detailed in our earlier judgment.

14.In many ways, the use of third parties in the present case to achieve his ends was itself an effective form of intimidation. We regard this as an aggravating feature.  The 2nd Applicant was a close friend of Becky Wong, the evidence being that the two were almost like sisters.

15.The involvement of lawyers was a further factor.  For a fragile witness to be asked by her close friend (the 2nd Applicant) to contact an unknown lawyer (Frankie Chung), who was himself in direct contact with the 1st Applicant and then, to be given the impression by that lawyer that he was acting professionally for her when this was not what she wanted, inevitably would have increased the pressure that she felt.

16.Even more overbearing than this was the institution of habeas corpus proceedings ostensibly for her benefit but in reality, not. It demonstrated that, notwithstanding she was in some form of protective custody of the ICAC, the 1st Applicant was still able to obtain access to her and would stop at nothing to achieve that end. The 1st Applicant was at the centre of all this.  

17.Included in the worst category of offences of this nature would fall those cases where a witness has been intimidated by or threatened with credible acts of violence.  In The Queen v Tin Sau Kwong, No.621 of 1996, 6 May 1997, Court of Appeal, the Applicant sought leave to appeal against a sentence of 5½ years’ imprisonment on a charge of conspiracy to pervert the course of public justice (this was on a plea of guilty although, for reasons not necessary to go into, the trial judge’s starting point was 6 years).  In that case, a potential witness who was assisting the ICAC in its investigations into corruption and cigarette smuggling, and his relatives, were threatened in a menacing way and references were made in the course of such threats to the witness’ health.  There was also triad involvement in the conspiracy.  The Court of Appeal was of the view that this was among the worst cases of its kind and held that a starting point of 7 years (the maximum) would have been appropriate.  We endorse this approach.

18.Mr Jonathan Caplan, QC (for the 2nd Applicant) referred us to HKSAR v Chu Ka Shing, unreported, CACC 104/2001, 14 June 2001, Court of Appeal, in which, before and during a trial in the Magistrates Court, the defendant made threats against a witness by stating that he knew where his wife worked.  He said that “something might happen to his wife” if he did not change his evidence.  He was convicted of doing an act tending and intended to pervert the course of public justice.  A starting point of 24 months was taken by the trial judge which was upheld by the Court of Appeal.  Little reliance can be placed on this case for the true nature of the threat is not clearly revealed in the judgment.  If the threats to harm the witness had been credible ones, as in the Tin Sau Kwong case, the sentence would have been very much nearer the maximum sentence.

19.The present case does not fall within the very worst band of cases but the facts, in our judgment, bring this matter into a serious category of such cases.  Even though no direct threats were issued to Becky Wong, there was a sinister edge to it all.

20.The 1st Applicant was the instigator of the conspiracy and was fully party to the various manoeuvres to gain access to Becky Wong to expose her in a public way.  Although the 1st Applicant was aware of the fact that Becky Wong was in some form of protective custody of the ICAC, we are prepared, for present purposes, to assume that, unlike the 3rd Applicant, he was not aware of the very real possibility that Becky Wong was in the Witness Protection Programme.  Had he been so, this would have constituted an extremely serious aggravating factor.  In the circumstances, we are of the view that the sentence of 3 years’ imprisonment passed by the judge is manifestly inadequate.  The appropriate sentence for the 1st Applicant is 5 years’ imprisonment.

The 2nd Applicant

21.The role of the 2nd Applicant in the conspiracy was less than either the 1st or 3rd Applicant: it may have been a lesser role but it was still one vital to the success of the conspiracy.  As Mr Caplan submitted, although she was in direct contact with Becky Wong, nothing that was said by her amounted to any direct form of threat.  There is little doubt that the initiative for the various manoeuvres to gain access to Becky Wong did not come from the 2nd Applicant.  She was in many ways merely an instrument, though a willing one, ready to allow herself to be used by others.  Personally, she had little or nothing to gain: she was not even a suspect in the Semtech investigations.

22.Even accepting the above matters, we take the view that the sentence of 2½ years imposed by the judge cannot be said to be wrong in principle or manifestly excessive.  The following matters are to be borne in mind in particular as far as the 2nd Applicant was concerned : -

(1)  It cannot have been lost on the 2nd Applicant that Becky Wong was an important witness in the Semtech investigation, an investigation that directly involved her boyfriend, the 1st Applicant.  Nor could she have been oblivious to the fact that she was used by the 1st Applicant to contact Becky Wong in the context of that investigation.

(2)  Despite being told directly by Becky Wong that she was “safe and sound” (or “safe and no incident”), the 2nd Applicant was willing to lend her name to the institution of the habeas corpus proceedings on the basis that Becky Wong was held against her will.  She was the client who instructed lawyers in the habeas corpus proceedings.

(3)  She went further when she went on oath to assert the contrary to what she had been told by Becky Wong: she swore an affirmation which contained untrue statements in those proceedings.  We accept Mr Caplan’s submission that the habeas corpus proceedings were not taken on her own initiative.  However, the fact remains that she was very much a willing participant.

(4)  The 2nd Applicant was evidently aware of the fact that Becky Wong was “fragile” and so must have been aware of the anxiety the attempts to get to her would produce.  The request to Becky Wong to contact a hitherto unknown solicitor (Frankie Chung) could only have added to that anxiety.

23.Mr Caplan reminded us at the hearing that there is no application for leave to appeal against the 1 year sentence imposed for the attempted perjury charge.  It was submitted that the gravamen of the case against her was contained in this charge.  We disagree.  The features of the conspiracy charge as far as she was concerned which we have identified extend well beyond the attempted perjury charge.

The 3rd Applicant

24.Much of the analysis regarding the 1st Applicant equally applies to the 3rd Applicant, but there are important differences.  Unlike the 1st Applicant, the 3rd Applicant was not the subject of the criminal investigations into Semtech, so he would not directly benefit from the conspiracy in the same way as would the 1st Applicant. 

25.That said, there are in our judgment serious aggravating factors that apply to the 3rd Applicant : -

(1)  Foremost is the fact that the 3rd Applicant is a solicitor.  As an officer of the court, a solicitor is expected, as the least of his duties to the court, to promote justice, not to pervert it.  This is a substantial aggravating factor given the nature of the offence.

(2)  There are many ways in which justice may be perverted and the extent of culpability is here, as in many situations, a matter of degree.

(3)  The 3rd Applicant was instrumental in initiating almost every aspect of the conspiracy to pervert.  Even though his active involvement lasted only from 13 July to 16 July 2004, it is evident that he was, as the judge found, “calling the shots behind the scenes”.  The 3rd Applicant’s involvement was not an isolated event; it was persistent.

(4)  It is unnecessary to repeat the 3rd Applicant’s conduct which is detailed in the judge’s Reasons for Verdict and in the judgments of this court.  They can be summarized, however, in the following way : -

(a)  It is plain that, from the very outset, he was aware that Becky Wong was in some form of protective custody with the ICAC: as a former ICAC officer, he would have been well aware of the potential effect of that custody on his client as well as the real possibility that she may have been a participant in the Witness Protection Programme.

(b)  His intervention, at the very outset, when he disapproved of the low-key approach that had initially been decided upon by the very solicitors to whom he had referred the 2nd Applicant.

(c)  His attempt to distance himself from the 2nd Applicant under the guise of a “conflict of interest”, thereby concealing from the court the relationship between himself and the 1st Applicant on the one hand and the 1st and 2nd Applicants on the other.

(d)  The involvement of the press.

(e)   The many telephone calls with Mr Egan.  It will be recalled that Mr Egan was at no stage retained for the 1st Applicant, 3rd Applicant’s client :  he was retained ostensibly only on behalf of the 2nd Applicant.

26.It is abundantly clear that the 3rd Applicant was very much acting in his capacity as a solicitor in all this.  What is particularly notable was the use of the machinery of the habeas corpus proceedings to achieve his client’s ends, albeit ostensibly through the offices of other solicitors. It should be unnecessary to restate the fact that absolute integrity is required from a person in a position such as that of the 3rd Applicant, not perversion of the very system which he was duty-bound to uphold.

27.It is obvious that for a solicitor, as an officer of the court, to be involved in a conspiracy to pervert the course of public justice and, further, to make use of the law’s machinery to achieve nefarious ends, strikes at the very heart of the administration of justice, severely undermining the public’s and the court’s trust in legal practitioners.  This places the criminality of the 3rd Applicant at a more serious level than that of the 1st Applicant even in the absence of any evidence that he knew of Becky Wong’s entering the Witness Protection Programme.

28.Ms Clare Montgomery, QC (for the 3rd Applicant) referred to a number of authorities.  As is usually the case when considering previous sentences, save in guideline or tariff decisions, they were  of little assistance since the facts were so different.

29.Ms Montgomery emphasized the case of The Queen v Alick Au Shiu Yuen, unreported, No.470 of 1992, 29 September 1993, Court of Appeal, a case involving a solicitor assisting a fugitive from justice. The duration of the defendant’s involvement in that case was longer than in the present case and his acts of assistance also involved the commission of other criminal offences.  However, as Mr Martin Wilson, QC (for the Secretary for Justice) pointed out, Au was acting not in his capacity as a solicitor, but as a friend in his personal capacity.  In addition, there was no element of the intimidation of a witness, an important factor in this matter.

30.Ms Montgomery also submitted that in sentencing the 3rd Applicant the court must also bear in mind the personal circumstances of the 3rd Applicant, in particular that he will now be disgraced in the profession of which he is a member and that he will probably be struck off.  All this is no doubt true but there is an important public interest to be firmly borne in mind.   The proper administration of justice depends to a large extent on a legal profession owing duties to the courts, and through them, to the community.  Any attempt to undermine that must be dealt with effectively.  In Attorney General v Yeung Sau Shing [1981] HKC 129, at 132A-B, Cons JA said, albeit not specifically referring to solicitors: -

“  The excellence of his character is, of course, a matter that cannot be ignored.  But we must at the same time not [lose] sight of the fact that this is a crime which is [essentially] against the public interest as a whole.  It strikes at the very heart of the system by which law and order is enforced in society.  If it were to succeed to any appreciable extent, it would completely destroy public confidence in that system.  Strong measures are needed to preserve that confidence and consequently, the personal circumstances of an individual defendant carry less weight in this case than they would in relation to some other crimes.”

31.In the circumstances, the sentence of 4 years imposed by the judge is manifestly inadequate.  The proper sentence in our judgment is 6 years.

Conclusion

32.For the above reasons, we would make the following orders : -

(1)  The 1st Applicant’s application for leave to appeal against sentence is dismissed.

(2)  The application for the review of the 1st Applicant’s sentence is allowed.  The sentence of 4 years’ imprisonment is quashed and in substitution, pursuant to section 81B of the Criminal Procedure Ordinance, he is to serve a period of 5 years’ imprisonment.

(3)  The 2nd Applicant’s application for leave to appeal against sentence is dismissed.

(4)  The 3rd Applicant’s application for leave to appeal against sentence is dismissed.

(5)  The application for the review of the 3rd Applicant’s sentence is allowed.  The sentence of 4 years’ imprisonment is quashed and in substitution, pursuant to section 81B of the Criminal Procedure Ordinance, he is to serve a period of 6 years’ imprisonment.

Hon Tang VP :

33.I agree with the Chief Judge and Wright J that the applications for leave to appeal against sentence by the 1st, 2nd and 3rd Applicants should be dismissed.

34.I am unable to agree with the majority that the application by the Secretary for Justice to review the sentences of the 1st and 3rd Applicants should be allowed.

35.The sentences of 4 years cannot be regarded as unduly lenient.  They do not :

“… fall(s) outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.”  per Lord Lane CJ in the Attorney-General’s Reference (No. 4 of 1989) 11 Cr App R (S) 517 at 521.

36.Nor should the sentence be increased:

“…merely because in the opinion of this court the sentence was less than this court would have imposed.” Ibid.

37.This is what the learned judge said when he sentenced the 1st Applicant:

“26.  D1 was the instigator of the conspiracy. He was the person Becky Wong had implicated. He enlisted Frankie Chung and D3 and, through D3 Massie & Clement was used for the habeas corpus proceedings, and he paid for the legal fees, for the legal visits and application for the habeas corpus. D2 later received a gift of an expensive motor car from D1 a few days after the discharge of the habeas corpus. It could not be said that the scheme was not well thought out. Although there was no bribe, threat, persuasion or communication, it was intended to influence Becky Wong, who was known to be fragile, and she did consider withdrawing from the programme. I consider the sentence of 3 years' imprisonment for D1 on the 1st charge as appropriate.”

38.Regarding the 3rd Applicant, he said :

“30.  Mr Harris submitted that D3 came into the picture only on 13 July, and it was submitted that the phone call of Frankie Chung and Becky Wong really led to the habeas corpus. It must be borne in mind that Becky Wong never asked Frankie Chung to go for the second legal visit and D2's instruction to Massie & Clement on 12 July was to apply to the court once access was denied. As the claim of unlawful detention was a sham, denial of access was hardly surprising. I found that D3 knew it was a sham. I also found that he planned the habeas corpus application and switched on all the machines of involving the press, which had far more effect than the legal visit to the ICAC.

31.  D3 is a member of the honourable profession of the solicitors, and he has made a good career out of it. More importantly, he is an officer of the court with the appurtenant rights and privileges, and he owes a duty to safeguard but not to abuse the system. The press report of a false allegation of illegal detention by the ICAC is a blow to public confidence in the administration of justice. This makes his criminality more serious that D1. I consider a sentence of 4 years' imprisonment for D3 on the 1st charge as appropriate.”

39.It is clear that the learned judge had not overlooked any of the aggravating factors in this case.  As was stated in Cross and Cheung, Sentencing in Hong Kong (5th Edition) at page 36 :

“… A court of first instance is invariably best placed to assess the weight to be given to the various factors touching upon sentence.”

40.The learned judge, rightly, had taken a serious view of the offences.  I do not believe he could be said to have been unduly lenient.

41.For these reasons, I would dismiss the Secretary for Justice’s application for review of sentence.

Hon Ma CJHC :

42.Accordingly, by a majority in the case of (2) and (5), we make the following orders : -

(1)  The 1st Applicant’s application for leave to appeal against sentence is dismissed.

(2)  The application for the review of the 1st Applicant’s sentence is allowed.  The sentence of 4 years’ imprisonment is quashed and in substitution, pursuant to section 81B of the Criminal Procedure Ordinance, he is to serve a period of 5 years’ imprisonment.

(3)  The 2nd Applicant’s application for leave to appeal against sentence is dismissed.

(4)  The 3rd Applicant’s application for leave to appeal against sentence is dismissed.

(5)  The application for the review of the 3rd Applicant’s sentence is allowed.  The sentence of 4 years' imprisonment is quashed and in substitution, pursuant to section 81B of the Criminal Procedure Ordinance, he is to serve a period of 6 years’ imprisonment.

Mr Martin Wilson, QC & Mr Roger Beresford on fiat for Department of Justice for the Respondent (CACC 248/2006) and the Applicant (CAAR 8/2006)

The 1st Applicant/1st Respondent – 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 (CACC 248/2006) and the 2nd Respondent (CAAR 8/2006)