R. v. Chiu Heung Wah

CACC000097/1993

IN THE COURT OF APPEAL

1993, No. 97
(Criminal)

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Coram: Hon. Yang, CJ, Macdougall, V-P and Wong, J.

Date of hearing: 3 September 1993

Date of judgment: 16 September 1993

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V-P:

1. The appellant was convicted after trial in the District Court before Judge Chua of making contradictory statements under oath contrary to section 39 of the Crimes Ordinance Cap. 200 and was sentenced to 12 months' imprisonment. He was acquitted on a charge of perjury contrary to section 31 of that Ordinance. He now appeals against both conviction and sentence.

2. The appellant had testified, under an immunity granted by the Attorney General, as a witness for the prosecution at the trial in the High Court of Chan Che-ping and Tong Yuen for conspiracy to forcibly detain a person with intent to procure a ransom for her liberation. Suffice it to say that in cross-examination the appellant gave evidence that plainly contradicted in a material particular that which he gave in his evidence in chief.

3. The document of immunity which the appellant received reads as follows:

"I hereby inform you that on condition that you give full and true evidence at the trial or trials of:-

(1) CHAN Che-ping

(2) CHAN Chi-kwong

(3) TONG Yuen

who are charged with Conspiracy to forcibly detain a person with intent to procure a ransom for her liberation contrary to Common Law and section 42 of the Offences against the Person Ordinance, Cap. 212 which offences are alleged to have occurred on divers days between 20th September 1990 and 20th October 1990 in Hong Kong, no further prosecution will be instituted against you in respect of any other offences connected with the above mentioned offence which have been or may be disclosed by you to officers of the Royal Hong Kong Police Force or will be disclosed by you in the course of your testimony during any of the said proceedings. This immunity does not apply to any offence of perjury to be committed by you at any time."

4. Mr. McCoy, who appeared for the appellant in this court but not in the court below, submitted that the offences of perjury and of making contradictory statements under oath are separate and distinct offences created by different sections of the Crimes Ordinance, and that, by preferring two separate charges against the appellant, the Crown had plainly recognised that fact. Indeed, Mr. Saw for the Crown accepted that this is so.

5. But, in developing that submission, Mr. McCoy argued that the effect of the last sentence of the document of immunity was that the Crown had clearly undertaken that it would not prosecute the appellant for any offence other than those referred to in the preceding sentence and perjury. By prosecuting the appellant for making contradictory statements under oath, the Crown had committed a breach of that undertaking. The proceedings in the District Court against the appellant were therefore an abuse of the process of that court.

6. Mr. Saw contended that the clear purpose of the immunity - and would have been understood by the appellant as such - was to assure him that, if he gave full and true evidence at the trial or trials of the named defendants, he would not be prosecuted for any offences connected with those with which the defendants had been charged and which he had already disclosed or would disclose either to the police or in the course of his testimony at the trial or trials of the defendants. He submitted that the second sentence in the document of immunity was really unnecessary but had been added to emphasise to the appellant that, if he gave untruthful evidence, he rendered himself liable not only to prosecution for the offences referred to in the preceding sentence but also to prosecution for giving untruthful evidence.

7. Can it reasonably be said that by informing the appellant that if he gave untruthful evidence at the trial of the defendants he rendered himself liable to perjury, he would have understood that to mean that he was safe from any possibility of being prosecuted for the closely related offence of making contradictory statements under oath - the essential element of both offences being the telling of a lie material to the issues at the trial?

8. It is not suggested that the appellant was even aware of the existence of the offence of making contradictory statements under oath, let alone the distinction between that offence and perjury. Indeed, if we understand Mr. McCoy correctly, the appellant would have had difficulty in understanding the terms of the immunity. Had the subtle distinction between the two offences been a matter which had operated on his mind in agreeing to give evidence for the Crown, we think that it is not unreasonable to assume that prior to his trial in the District Court he would have drawn the attention of his legal advisers to the fact that he had given evidence for the Crown at the trial of the defendants on that understanding. The point that is now taken in this court would then have been taken in the court below where the appellant was represented, as he is now, by Mr. Egan, a most experienced former senior prosecutor of the Attorney General's Chambers.

9. In our view in order to establish that there has been an abuse of process in circumstances such as those in the present case it must be demonstrated that the appellant was treated unfairly. It was undoubtedly plain to him that he was obliged to give full and true evidence and that, if gave false evidence, he faced the prospect of being prosecuted for having done so. There was no evidence before the judge that the appellant had in any way been misled into thinking that he could safely make contradictory statements on oath at the trial of the defendants without fear of prosecution and that he had entered into the agreement with the Crown to give evidence on that basis. Indeed, we consider that to suggest that the appellant had this in mind would be fanciful. We do not accept for one moment that the technical description of the offence with which he rendered himself liable to be charged for giving that evidence was in the least likely to have been a matter which influenced his decision to testify for the Crown or one on which he placed reliance in giving his testimony in the way in which he did.

10. Perjury is the making of a statement in any judicial proceeding which is material in that proceeding and which the person who makes it does so wilfully and knowing it to be false or not believing it to be true. Likewise, in proceedings for an offence against section 39, the contradictory statements of fact must be material to the issue or matter in question and have been made wilfully. The only real distinction between the two offences is that in a prosecution under section 39 the Crown does not have to prove that one or other of the statements was false, but merely that they were contradictory. Whichever offence is charged, the Crown must prove that false evidence was given. In a perjury charge the falsity is proved by reference to evidence other than that given by the defendant, whereas in a section 39 charge the falsity is established by means of the contradiction in the defendant's evidence without the need to prove which of the contradictory statements was false.

11. In Hui Chi-ming v. R. [1992] 1 AC 34 at 57 Lord Lowry, delivering the judgment of the Privy Council, defined abuse of process as "something so unfair and wrong that the court would not allow a prosecutor to proceed with what is in all respects a regular proceeding".

12. We can find nothing unfair in the fact that the appellant was prosecuted for giving untruthful evidence by wilfully making contradictory statements upon oath, one of which must have been false. It is the substance to which regard must be had, not the form. This ground of appeal fails.

13. Mr. McCoy's remaining submission was that the judge failed to consider whether the appellant had wilfully made the statements which Mr. McCoy frankly and properly concedes were contradictory.

14. Having given clear evidence in examination-in-chief that the conspirators had discussed the subject of kidnapping the victim with the object of demanding a ransom for her release, the appellant denied in cross-examination that there had been any discussion about kidnapping or the taking and tying up of the victim in order to obtain a ransom. He said that the story that there had been a discussion about kidnapping was the product of an untrue theory which the police had dreampt up and that he had seized upon it as "a life-line" to avoid prosecution.

15. This, however, was not a matter with which the judge was required to concern herself when deciding whether the appellant had wilfully made the contradictory statements. His motive, even if his evidence in that regard had been believed, was irrelevant. The sole question was whether he had wilfully made the contradictory statements.

16. The evidence spoke for itself. The reason which he gave for giving what he said was false testimony as to the discussions concerning kidnapping the victim for a ransom made it plain that he had made the contradictory statements intentionally, not inadvertently.

17. For these reasons we dismiss the appeal against conviction.

Representation:

D.G. Saw for Crown Prosecutor

G.J.X. McCoy instructed by M/S K.C. Man & Co. for applicant