Read the full judgment text of CACV 247/2010 on BabelCite. This Court of Appeal judgment was delivered on 11 October 2011 before Tang VP, Stock VP and Fok JA.
Criminal law – contempt of court – covert recording of prosecution witnesses in witness room – sentencing – appeal against sentence – acquittal appeal – criminal contempt requires basic intent – power to increase sentence on appeal – evidence – hearsay – treatment of charge in contempt proceedings akin to indictment. This case arose from the covert recording of prosecution witnesses in a witness room during a trial in DCCC 1280/2005 (the vice trial) involving nine defendants charged with conspiracy to manage a vice establishment. The 1st Respondent, wife of the 4th Defendant, concerned that police witnesses might collude to falsely implicate her husband, arranged for the 2nd Respondent (a family friend) to place an MP3 recorder in the witness room on 47 court days between 7 May and 7 September 2007. The 3rd Respondent was a law clerk at the firm representing the 4th Defendant who arranged for transcription and translation of the recordings. The recordings directly led to the acquittal of all defendants in the vice trial and the subsequent prosecution and conviction of two police officers. The 1st Respondent was separately convicted of perjury. The 1st and 2nd Respondents were found guilty of contempt of court; the 3rd Respondent was acquitted. On whether the sentences should be increased – the Court of Appeal dismissed the appeal against sentence, holding that the power to increase a sentence on appeal must be used sparingly and a sentence should not be increased unless it is 'unduly' lenient with consideration of double jeopardy. The sentencing judge appropriately balanced the gravity of the contempt by imposing custodial sentences (9 months for the 1st Respondent, 6 months for the 2nd Respondent) and suspending them for 18 months, given the unusual circumstances where the respondents' actions exposed police misconduct. On whether the 3rd Respondent was guilty of contempt – the Court of Appeal dismissed the appeal, holding that the charge did not allege the 3rd Respondent was party to ongoing illicit recordings but only that he arranged transcription and translation. The evidence did not establish beyond reasonable doubt that the 3rd Respondent was aware of or encouraged the ongoing nature of the recording. The 1st Respondent's perjury conviction was not evidence against the 3rd Respondent. On the broader principle – the Court held that breach of a judicial direction to a witness not to discuss evidence is a contempt of court that will be treated seriously, following R v Jakes and R v Elliott and Dawkins.
Legal issues: Whether sentences of 1st and 2nd Respondents for contempt of court should be increased · Whether 3rd Respondent was guilty of contempt of court for arranging transcription and translation of covertly recorded audio · Whether breach of a judicial direction to a witness not to discuss evidence constitutes contempt of court
Outcome: Appeal against sentence of 1st and 2nd Respondents dismissed; appeal against acquittal of 3rd Respondent dismissed.
Cited by 1 case · Cites 4 cases