HKSAR v. Wong Chi Wai

DCCC960/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 960 OF 2009

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Reasons for Sentence

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1.Defendant, you were convicted after trial of a single offence of attempting to pervert the course of public justice, contrary to Common Law. The facts of the case have been dealt with extensively in my verdict and there is no need to repeat them. Suffice it to say that the essence of the case is three acts of communication with a prosecution witness, who was also a lawyer, of a threatening nature over a period of approximately two months at the end of 2005 and the beginning of 2006. The threats themselves related to taking civil action against her and reporting her to the Law Society. These communications took place whilst the trial of a defendant named Madam Lau for whom you were a barrister instructed in that case, representing her.

2.Defendant, you are of course a man of hitherto impeccable character.  Mr Harris has placed before me written mitigation accompanied by examples of cases where a non‑custodial or short custodial sentence has been imposed for offences of this nature.  He does not submit them to establish a tariff for none exists.  Each case falls to be judged on its own facts.

3.Mr Harris as always is realistic and straightforward and facing the fact that the present case is serious, that such cases normally attract an immediate custodial sentence, but urges on me that given the facts of the particular case, this matter should attract a prison sentence but one that is suspended. 

4.Mr Harris informs me that you, a practising barrister of some 25 years of experience, are 56 years of age, married with three children of 24, 20 and 16.  I note all of your children are or are intending to pursue careers in the law.  You are the sole breadwinner for your immediate family and you also provide for your parents.

5.Mr Harris told me of your progression in life from government clerk in 1973 to an experienced and well-respected barrister.  He laid emphasis on the effect that this conviction will have on your career; effectively, that it is almost certain you will never practise again in Hong Kong because of this.  That is and I accept it to be a serious and condign punishment in its own right.  That the effect on your family of this conviction will be devastating is self-evident.

6.Referring to the offence, Mr Harris submits to me it is clear from the verdict and the court’s findings that you had fallen below your usual high standard in your representation of Ms Lau, and your conduct stepped over the mark of what was permissible, but unlike other perversion cases, there were no threats of violence, no perjury, no destruction or disposal of evidence, no framing of innocent people, no corruption or bribery, no assisting fugitives, no conspiracy to deceive the court and that the prosecution witness was not asked to lie or otherwise alter her evidence. 

7.Mr Harris also referred to defence’s conduct of the case, particularly your co-operation in making extensive and time-saving admissions of fact; also that you had at all times shouldered full responsibility for the drafting of the letters and the overall tactics that were employed.

8.I was also referred to the sentence in the case of Mr Birney Yeung who appeared in this case as PW1 and had been convicted himself of the offence before a different judge on a different occasion.  He was sentenced, I am told, to 4 months’ imprisonment suspended for 1 year.  I do note, however, that his role was much less and his giving of evidence on behalf of the prosecution must have been a factor in that sentence.

9.I turn now to the sentence.  In the Hong Kong Special Administrative Region, in my opinion, one of the greatest, if not the greatest, protections of rights and liberties is the legal system.  Lawyers not only have the right but the professional duty to represent their clients fiercely and vigorously.  In this - and it is entirely right it should - the law provides a large measure of leeway.  The courts will respect and defend that position.  However, those rights and duties are not unfettered as in the present case, the prosecution, who represents the state and therefore the people, enjoy the right to be able to call their witnesses and those witnesses should be able to give evidence freely, fearlessly and truthfully without unfair and illegal pressure. 

10.In this case, Mr Wong, you, an experienced and I accept well-respected barrister, went beyond what the law permits in applying pressure to a prosecution witness.  The intention of that pressure was not, I am prepared to accept, to force her simply to refuse to enter the witness-box, nor to absent herself from the trial of your client.  It was to force her to make an application to the court which she did not wish to make and which she, in my opinion rightly - and this was supported by the findings of my brother judge - had no need and no basis to make.  The application was to set aside a witness summons properly issued and demanding of her to give admissible evidence.  That you failed in what you attempted was in large measure due to the fortitude of Miss Fanny Mak who stood up to the threats and pressure so wrongly heaped upon her.

11.I acknowledge and have considered the sentencing cases placed before me by Mr Harris.  Again I pay tribute to Mr Harris’ always thorough, balanced and fair approach.  However, they are, as I have said in my opinion, to be viewed as examples of cases decided on their own facts and circumstances.  However, I will attempt to draw the threads together for the correct approach to sentence in attempting to pervert the course of justice and of course in actually perverting the course of justice.

12.The normal sentence, as I understand it, is one of immediate imprisonment generally of a substantial period, depending on the seriousness of the acts and of the pressure applied.  In exceptional cases, suspension of sentence is appropriate.  In some cases, other sentences such as community service and fines have been used.  I cannot comment further on this.

13.In the present case, the facts are peculiar to themselves.  The aggravating features are that you, Mr Wong, are a barrister and therefore someone who does and should have known better not only as a barrister but a barrister of over 20 years’ experience at the time of the commission of this offence.  In my opinion, other aggravating features do apply.  The fact that this was not one act but three acts of unlawful communication spaced over approximately two months, that the acts were planned, thought-out and executed in pursuance of your overall plan and design.  That all took place against the backdrop of the live trial, the timing of those communications was very significant.

14.Conversely, one must acknowledge and make allowance for the mitigation.  Firstly and here I draw not only on your character witnesses but my personal experience of you, Mr Wong, who from time to time have appeared before me, you are a barrister who in the best tradition of the Bar gives his all in representing his client.  No one could say or accuse you, of shirking your duty or avoiding a scrap.  This is admirable so long as it stays within legal bounds.  In this case, it did not.

15.In this case, no actual perversion did take place and you yourself, Mr Wong, had to make the application that you were trying to force Fanny Mak to make.  Looking at the situation, it is no surprise that it failed.  The case I note against Miss Lau ultimately did fail for wholly unconnected reasons with this matter.  The victim in this case is a lawyer, a lady who did not easily give in to illegal and repeated pressure.  I am prepared to treat her status as capable of some mitigation even though your acts, in my judgment, as I have referred to previously, because of her status, gave you another stick with which to beat her. 

16.Also, I turn to your presentation of the case. I accept that was extremely responsible and helpful to the court and to the prosecution in that extensive admissions of fact were made and at no stage did you try to evade the acts that you had performed.  You at no stage tried to shift responsibility for the drafting of the letters nor the tactics employed. This saved a lot of time in the trial.

17.I also note that you had no personal interest in the outcome of the case save a professional one.  Also, the acts that were attempted to persuade involved no threat of violence, perjury, no destruction of evidence, no framing-up of innocent people, no corruption or bribery, no assisting of fugitives and no conspiracy to deceive by asking the prosecution to lie, alter or withhold evidence.  The threats themselves were threats to do what would otherwise have been legal.

18.Finally, one cannot overlook the fact that disciplinary proceedings will follow this conviction and almost certainly will result in your losing your hard-earned career.  That saddens me though this has to be.  The wider interests of the profession and society demand it.

19.I turn now to the sentence.  Given all the facts, this was a serious course of misconduct, as I have said, not a single isolated act.  In my view, prison is inevitable although I do not find a lengthy sentence to be either justified or needful.  You will never err in this regard again.  There is no cause for a deterrent sentence as you are a person of previous good character and also the course of conduct you embarked upon is not widespread within the profession.

20.In the catalogue of events, I do place it not at the bottom scale of criminality but certainly towards the bottom.  In all the circumstances, you will be sentenced to 6 months’ imprisonment.  I can find no ground to suspend that period.  Indeed, I find it would be wrong in principle to do so.  I therefore sentence you to 6 months’ imprisonment.

(I) Please refer to CACC203/2010 for the relevant appeal(s) to the Court of Appeal. (II) Please refer to CAAR6/2010 for the relevant appeal(s) to the Court of Appeal.