HKSAR v. Tsang Kwok Kin

CACC407/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 407 OF 2009

(ON APPEAL FROM DCCC NO. 193 OF 2009)

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BETWEEN

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Before : Hon Stock VP, Beeson and Lunn JJ in Court

Date of Hearing : 24 June 2011

Date of Judgment : 24 June 2011

Date of Reasons for Judgment : 6 July 2011

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REASONS FOR JUDGMENT

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Hon Lunn J (giving the Reasons for Judgment of the Court) :

1.At the hearing we dismissed the application for leave to appeal against the applicant’s conviction on 23 October 2009 in the District Court by Judge Andrew Chan of a charge of conspiracy to pervert the course of public justice, contrary to Common Law and sections 159A and 159C of the Crimes Ordinance, Cap. 200. We said that we would give reasons in due course. This we do now. There is no appeal against the sentence of 18 months’ imprisonment imposed on the applicant in consequence of his conviction.

THE CHARGE

2.The Particulars of Offence alleged that the applicant and the 1^st defendant, Tin Sai Fung, between 2 March and 14 April 2007 had conspired together with Madam Wong Mei Ying, Susannah to pervert the course of public justice by “improperly interfering with the police investigation of the suspected traffic offence committed by Wong Mei Ying, Susannah” on 24 February 2007.

THE TRIAL

(1)   Undisputed issues

3.The applicant and the 1st defendant were police constables serving in Traffic Kowloon West.  At about 10:40 p.m. on 24 February 2007 Madam Wong was driving a Lexus motorcar, of which she was not the owner, along Ma Tau Chung Road when the nearside rear of that motorcar was in a collision with the front offside of a Kowloon Motor Bus Company (“KMB”) bus driven by Mr Chan Wing Wo.  Both vehicles sustained damage at the respective points of impact.  However, Madam Wong did not stop her vehicle, rather she continued her journey until she parked at her residence in Whampoa Garden, Kowloon.  There, she noticed damage to the rear near side of the vehicle and shortly after midnight, on what was now 25 February 2007, she made a report of the incident to Tai Wan Shan police station.

(2)   The steps taken by the applicant in the investigation : 1-27 March 2007

4.On 1 March 2007, the applicant was assigned to investigate a report of the collision made by the driver of the KMB bus.  An Investigation Report attached to the Traffic Accident file documented the applicant's action.  On 2 March 2007, he issued a “Notice requiring Identification of Driver”, pursuant to section 63(1) of the Road Traffic Ordinance, Cap. 371, to the registered owner of the Lexus motorcar, Mr Chiu Chum, and a “Notice of Intended Prosecution”, in respect of offences including careless driving to Madam Wong and the driver of the KMB bus in the name of Senior Inspector Cheung.  By a letter, dated 9 March 2007, Madam Wong was identified as the driver.  On 8 March 2007, the applicant requested KMB to provide photographs depicting the damage to their bus.  On 23 March 2007, the applicant interviewed and took a statement from the driver of the bus.  On 25 March 2007, the applicant noted that he had received photographs from KMB.

5.On 27 March 2007, Madam Wong met the applicant at his request at Tai Wan Shan police station and, after they had some discussions about the circumstances of the accident, signed what purported to be a record of interview conducted of her by the applicant.  She was given a photocopy of the record of interview.

THE PROSECUTION CASE

6.The prosecution case was that the applicant, the 1^st defendant at trial and Madam Wong had conspired together to interfere with the proper police investigation of the accident and had taken various steps to ensure that Madam Wong was not prosecuted for any criminal offence arising out of the accident. Madam Wong was called by the prosecution as a witness testifying under an immunity from prosecution.  She described having been contacted by the 1^st defendant and then meeting him and her friend, Candy, on 2 March 2007.  Earlier, she had been provided with his contact details by Candy, and told that he had been informed of her predicament.  The 1^st defendant urged her to agree to make payment of compensation to KMB and, after having arranged for repairs to be done to the Lexus motorcar, to provide photographs to the police depicting a lesser extent of damage.  At his urging she had made a payment of compensation of $5,250 to KMB on 26 March 2007.

7.On 27 March 2007, she met the applicant at his request at Tai Wan Sham police station and, after a discussion between them as to the circumstances of the accident, she signed what purported to be a record of interview conducted of her by the applicant.  Shortly after that she had shown the copy of her record of interview to the 1^st defendant who had told her that it was incorrect and urged her to burn it.  She did not do so.  On 29 March 2007, the owner of the Lexus motorcar informed her that it had been repaired.

8.On 1 April 2007 she returned to the police station at the request by telephone of the applicant, who told her that she was required to make a statement.  However, in the absence of the applicant she met the 1^st defendant and at his request arranged for photographs to be taken of the Lexus motorcar.  In the interim, at the direction of the 1^st defendant and a woman police officer she wrote and signed a statement, backdated to 27 March 2007, in which she stated that she had paid KMB compensation and declared that “she would not make statements for this incident again”.  When the printed photographs were delivered to her she made them available to the 1st defendant, who chose two of them.  The extent of the damage to the Lexus motor car, prior to its repair, was depicted in photographs taken by an ICAC officer on 26 March 2007.

(1)   The applicant’s recommendation : no further action

9.In early April 2007, the applicant presented his superior officer with a file containing the results of his investigation, together with a recommendation that no further action be taken.  However, he concealed from that officer the fact that he had taken a record of interview from Madam Wong on 27 March 2007, which record of interview was not contained in the file.  Moreover, the file contained the handwritten statement signed by Madam Wong, backdated, from 1 April to 27 March 2007, asserting that she would not make further statements in respect of the accident.  Also, the file contained the two photographs of the Lexus motorcar car taken after it had been repaired and the impact damage from the collision therefore no longer visible, which photographs the 1^st defendant had selected on 1 April 2007.

10.It was the prosecution case that the information contained in the file was misleading and incomplete and that the applicant intended thereby to pervert the course of public justice.  In the event, on the information provided to him, Senior Inspector Cheung accepted the recommendation made by the applicant and in due course Madam Wong was informed that ‘no further action’, in particular any prosecution, would be taken against her.

11.In addition, the prosecution relied upon what they contended were inculpatory admissions made by the applicant in a record of interview conducted of him by officers of ICAC following his arrest on 9 May 2007.  In particular, they pointed to the applicant’s acceptance that Madam Wong had signed a record of interview on 27 March 2007 but that he had deliberately concealed that fact in the Traffic Accident Report file that he had presented to his superior officer in early April 2007.

(2)   The defence case

12.Neither the 1^st defendant nor the applicant gave or called evidence at the trial.  In the closing addresses at trial it was submitted on behalf of the applicant that the evidence did not establish that he had been acting in concert with the 1^st defendant and Madam Wong : if he had been doing so, he would not have troubled to take a record of interview of Madam Wong on 27 March 2007, rather he would have obtained from her a ‘pro forma’ witness statement, namely one in which it was asserted that no person had been injured, no damage done to government property and that the parties had agreed to settle the case privately.  In any event, the record of interview signed by Madam Wong did not contain admissions that might have been useful in considering whether or not to prosecute her.  She had reported her discovery of damage to the Lexus motorcar within two hours of that discovery.  In her record of interview, she asserted that at the time of the collision with KMB she had not been aware of the fact of that collision.

13.On behalf of the applicant, reliance was placed on exculpatory assertions in his record of interview, in particular his repeated assertions that he was not a party to an agreement to assist Madam Wong to ‘settle’ the case.  He was not a party to whatever might have been agreed and carried into action between the 1^st defendant and Madam Wong. Also, the court was invited to accept his explanation in the record of interview that he had simply lost Madam Wong’s record of interview and, in fear of disciplinary consequences, had concealed the fact that it had been made.

THE REASONS FOR VERDICT

14.In his Reasons for Verdict, the judge first considered the case against the 1st defendant and determined that the 1^st defendant and Madam Wong had conspired together to pervert the course of public justice.

15.The judge accepted that there was no evidence that the applicant had met Madam Wong prior to 26 March 2007 and found that “prior to 26 March 2007” the applicant was not a party to the conspiracy that he had determined existed between Madam Wong and the 1^st defendant. However, he determined that thereafter things took a different course.

16.The judge accepted that following the making of the written record of interview of Madam Wong on 27 March 2007 she had been told by the 1^st defendant to burn her copy of the record of interview and that a further statement would be taken from her.  Having noted that there was no dispute that Madam Wong’s record of interview was missing from the investigation file that the applicant presented to his superior officer, the judge rejected the applicant’s explanation in his record of interview that the document had simply been lost :

“… the fact that the missing coincided with D1’s instruction to destroy it, is simply beyond anyone’s comprehension.”

Also, the judge noted that pages 13(1)–(3) were missing from the file.

17.Of the fact that the two photographs of the Lexus motorcar included in the file had been taken after repair to that motorcar the judge determined :

“There is of course no evidence to suggest that D2 was aware of the deceptive nature of these two photographs.”

18.In the result, the judge concluded that :

“… between 27 March and 1 April 2007 D2 (the applicant) had become part of the conspiracy.”

GROUND OF APPEAL AGAINST CONVICTION

19.Mr Poon advances what in essence are two grounds of appeal.  First, he submits that in convicting the applicant the judge failed to give sufficient consideration or weight to the applicant’s out-of-court explanation that when submitting the file to his superior officer he had deliberately concealed from that officer the fact that he had taken a record of interview of Madam Wong on 27 March 2007, in order to protect himself from disciplinary proceedings, not intending to pervert the course of public justice.  Relevant to the issue was the fact that the record of interview did not contain any admissions as to matters that were in dispute.  Secondly, it was submitted that, having determined that there was no evidence that the applicant “was aware of the deceptive nature” of the two photographs of the Lexus included in the Accident Report submitted to his superiors, the judge erred in drawing inferences adverse to the applicant from the fact that he had received those photographs from the 1^st defendant, whose acquaintance with Madam Wong was known to him.

A CONSIDERATION OF THE SUBMISSIONS

20.It is clear that the judge was very alive to the out-of-court explanation given by the applicant, first that the record of interview had gone missing and, secondly as to why he had deliberately concealed from his superior officer the fact that he had taken a record of interview from Madam Wong on 27 March 2007.  Of the first matter, he said that he did not believe the applicant :

“I accept exhibits, due to negligence on the part of police officers or other reasons, can sometimes go missing. However, the fact that the missing coincided with the D1’s instruction to destroy is simply beyond anyone's comprehension.”

21.The judge went on to note the unchallenged evidence that there was available to the applicant an exhibit room in which to keep the record of interview in safe custody.  Furthermore, he noted that also missing from the file were pages 13(1)‑(3) of the applicant’s chronological diary of his actions.  Clearly, the judge was entitled to reject the out-of-court assertion of the applicant.

22.Of the applicant’s explanation for deliberately concealing the matter from his superiors, the judge noted that a variety of options were available to him, if he had been confronted by the simple fact that Madam Wong’s record of interview had gone missing : she had been given a copy of the record of interview and she could be asked to provide a copy; she could be re-interviewed and asked to confirm the contents, or he could report the matter to his superiors.

23.Relevant to these determinations of the judge was the undisputed evidence that the short statement made by Madam Wong on 1 April 2007, but backdated to 27 March 2007, was described in the applicant's chronological diary in the file as having been made on 27 March 2007.  That was not the case.  Of that, the judge determined :

“From the investigation report, one can also see that D2 agreed to the backdate also.

162.   All in all, one can see D2 was giving his full co-operation to D1.”

24.It is trite law that a tribunal of fact is entitled to afford less weight to an exculpatory out-of-court statement, not tested on oath or by cross-examination. Once again, in particular having regard to the supporting circumstantial evidence, the judge was entitled to reject the applicant's out-of-court explanation for his deliberate concealment of the fact that that he had taken a record of interview taken from Madam Wong.

25.The ingredients of the offence of conspiracy to pervert the course of public justice are summarised in the judgment of Ribeiro NPJ in HKSAR v Egan [2010] 13 HKCFAR 314 at 362 ：

“125. A conspiracy to pervert the course of justice is an agreement to do an act which has a tendency to pervert the course of justice, intending that the agreed act should have that effect. Where the conduct in question has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the alleged conspirators intended that the act agreed upon should be performed. But where the act does not have such a manifest tendency, it is necessary to prove the specific intent of perverting the course of justice on the part of the alleged conspirators.64

126. For an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings.65 A conspiracy to effect some other unlawfulness but which has no tendency to cause a miscarriage of justice in curial proceedings, is not a conspiracy to pervert the course of justice.66 It is unnecessary for such proceedings to have been instituted at the time of the acts in question but the relevant acts must ‘have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible…’67 And the accused must know of or contemplate the possible institution of such curial proceedings and realise that the proposed conduct has the manifest or intended tendency to pervert the course of justice in relation thereto. It matters not that the relevant law enforcement agency has not itself considered bringing proceedings at the time of the accused’s act or agreement in question.68

127. Investigations by law enforcement agencies do not themselves form part of ‘the course of justice’ (an expression synonymous with ‘the administration of justice’) so that acts which hinder or interfere with their investigations are not sufficient in themselves to constitute a perversion of the course of justice.69 However, if such acts of interference carry a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from the investigations, they are capable of founding the offence.70”

26.Clearly, the applicant contemplated that curial proceedings might be instituted.  The decision was not his to make.  The concealment of material relevant to the making of that decision had a tendency to perverting the course of justice in relation to prospective curial proceedings.  The judge was entitled to find the ingredients of the offence proved.

The photographs of the Lexus

27.As noted earlier, in his reasons for verdict the judge determined that there was no evidence to suggest that the applicant was aware of the deceptive nature of the two photographs of the Lexus that were attached to the file that he had submitted to his superior.  However, he went on to say :

“However, they were passed to him by D1 and D2 was well aware of the fact of the acquaintance between PW1 and D1.”

28.Perhaps, in that respect the judge had in mind his earlier finding in favour of the applicant.  In the company of the 1^st defendant and Madam Wong, he had said that “but for the fact that she knew D1 he would clear her pocket in one go”.  Of that, the judge said :

“We all know that D1 was trying to date PW1. D2 as a colleague, may very well be bluffing so as to give the won a helping hand.”

29.Nevertheless, there was no evidence admissible against the applicant that the 1^st defendant had passed him the photographs.  Madam Wong had said that she had handed them to the 1^st defendant (see T 796 L).  That evidence was not challenged in cross-examination on behalf of the 1^st defendant or the applicant.

30.In his out-of-court statement the applicant said that on 27 March 2007, he had asked Madam Wong to provide photographs of the Lexus motorcar.  He made that request so that he could see if the damage was “minor or serious”. He asked her to have photographs taken of the rear left part of the vehicle. At first, he said that he could not remember if he had received them directly from Madam Wong or through the Report Room.  He received them some days after 27 March 2007.  He said that, if his memory was correct, she had given them to him directly on 1 April 2007.  Later, he confirmed that to have been the case.  She had brought more than the two photographs and he had picked out those two photographs.

31.It follows that the judge was in error to state that the photographs had been passed to the applicant by the 1^st defendant.  What turns on that error?  Clearly, the statement immediately preceding that error was of the utmost importance, namely a determination that there was no evidence that the applicant knew of the deceptive nature of the photographs.  If that was the case, the means by which he obtained his photographs was of no relevance.  We were satisfied that when regard is had to both statements together, it is clear that the judge did not draw an inference adverse to the applicant.

CONCLUSION

32.In the result, we were satisfied that there were no merits in the proposed grounds of appeal against conviction.  Accordingly, we refused the application for leave to appeal against conviction.

Mr Eddie Sean, SADPP of the Department of Justice, for the Respondent

Mr Jackson Poon, instructed by Messrs Ellen Au & Co., for the Applicant

64 R v Rogerson (1992) 174 CLR 268, 280-283; HKSAR v Wong Shing Yim [2003] 3 HKLRD 1046, para.29.

65 Including tribunals having authority to determine the rights and obligations of parties and having a duty to act judicially: R v Vreones [1891] QB 360, 369; R v Rogerson (1992) 174 CLR 268, 275-276.

66 As in R v Selvage and Morgan [1982] QB 372.

67 R v Rogerson (1992) 174 CLR 268, 277; adopted in HKSAR v Wong Shing Yim [2003] 3 HKLRD 1046, paras.23, 30; R v Panayiotou [1973] 1 WLR 1032, 1036; R v Selvage [1982] QB 372, 381.

68 R v Rogerson (1992) 174 CLR 268, 277-278, 284-285; HKSAR v Wong Shing Yim [2003] 3 HKLRD 1046, para.29. 

69 Some decided cases have suggested the contrary: R v Thomas [1979] QB 326 and R v Cotter [2002] 2 Cr App R 29 (p.405), 416; both relying on R v Bailey [1956] NI 15, 26.  However, in my view, the approach in R v Rogerson is preferable.  Compare R v Rafique [1993] QB 843, p.852, where Lord Taylor of Gosforth CJ considered the two lines of cases reconcilable.

70 R v Rogerson (1992) 174 CLR 268, 275-279.