­­secretary for Justice v. Wong Chi Wai ­­

CAAR6/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 6 OF 2010

(ON APPEAL FROM DCCC NO. 960 OF 2009)

Before : Hon Stock VP, Kwan JA and Lunn JA in Court

Date of Hearing : 26 March 2012

Date of Judgment : 26 March 2012

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J U D G M E N T

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Hon Stock VP (giving judgment of the Court):

1.Mr Wong, a barrister, was charged in September 2009 with one offence of attempting to pervert the course of public justice. After trial he was convicted in May 2010 in the District Court and on 24 May 2010 sentenced by Judge Tallentire to 6 months imprisonment for that offence.

2.Two applications followed that conviction: an application by Wong to appeal that conviction and an application by the Secretary for Justice for review of that sentence pursuant to the provisions of section 81A of the Criminal Procedure Ordinance, Cap 221, for which latter application leave was subsequently granted by the single judge.

3.The hearing of the application relating to conviction took place over three days in October 2011. By our judgment dated 2 March 2012, we granted leave to appeal against conviction but dismissed the appeal.  It therefore now falls for us to consider the application for review of sentence.

4.The facts of the case are fully traversed in our judgment of 2 March.  Put very broadly, Wong appeared as counsel for Ms Lau in a theft trial which took place from November 2005 to the end of January 2006.  In order to succeed against Lau, the prosecution had to prove that she had signed a deed of charge and, absent an agreement as to that fact, it was necessary to prove it by calling as a prosecution witness a solicitor who had at the material time acted for the bank chargee.  The prosecution wanted her to identify Lau as the person who had signed the deed.  The solicitor was issued with a witness summons to give evidence at the trial of Lau.  Wong’s impugned conduct was that he sought to ensure that the evidence that it was his client who had signed the charge was not adduced.  He did so by drafting a series of letters to be sent by his instructing solicitors to the solicitor and a number of letters to the Law Society, which were copied to the solicitor.  The letters were duly sent by the instructing solicitors.  Wong’s intention, so the judge found, was to intimidate her into adopting a position in which she had no belief, namely, that she could not give the evidence since it was covered by legal professional privilege.

5.The notion that the evidence was precluded by legal professional privilege was untenable but even if Wong nurtured any belief in the point, it was the manner by which he sought its exclusion at the behest of the solicitor that crossed the line between, on the one hand, permissible and professional pressure or acceptable professional litigious threats to, on the other, impermissible unprofessional harassment, The crossing of the line between permissible and impermissible steps or pressure is explained in detail in the judgment of 2 March, a picture difficult to subject to a précis for present purposes but, again put very broadly, it was evidenced by the tone and content of the correspondence, its misleading nature, the use of disingenuous and in some respects inaccurate letters to the Law Society - disingenuous in the sense that they were too vague to draw any realistic response, so that they were viewed by the judge as mere weapons of intimidation - and the timing of the last letter to the Law Society; a matter of days before the solicitor was due to give evidence, when it was known by then for nigh on two months that the solicitor was unwilling to assert legal professional privilege or to apply to have the witness summons set aside. And during those entire two months, during which the trial proceeded, there was not a whisper from Wong either to the court or to the prosecutor about Wong’s suggested concern regarding the propriety of admitting this evidence, or of his correspondence with the witness; not a whisper until the morning upon which the solicitor was called into court to testify, at which point Wong was forced to take the point of his own motion, rather than the solicitor taking the point, and even then citing text-book authority in favour of his argument but not drawing the court's attention to a proposition on the very next page of the textbook which stood glaringly against his argument: all of this being evidence to support the contention that he knew or strongly suspected that an application or representation by the solicitor that the evidence be not received enjoyed a significantly greater chance of success than an application by him; which is why, it was found, he took such pains to force the solicitor to make the application.

6.In the event, his application failed. The solicitor gave evidence.  So his attempt to nip the evidence in the bud did not succeed.

7.At the time of his conviction, Wong was aged 56 years. He had been in practice for over 25 years and was of course a person with no previous convictions.

8.In his reasons for sentence, the judge noted points made by counsel on Wong's behalf : the dramatic impact of the conviction upon Wong's career and future; that this was a case which was to be distinguished from other cases within its category by its absence of perjury, of destruction or disposal of evidence, of the framing of an innocent person or of asking a witness to lie or to alter evidence.

9.The judge recognised the right, indeed the duty, of lawyers to represent their clients fearlessly and vigorously but, conversely, the right of prospective witnesses to give evidence “without unfair and illegal pressure”. The judge sentenced on the basis that the impermissible pressure was not a desire to force the witness to absent herself from the trial but was, rather, to force her to make an application which she did not wish to make, with no basis upon which she could feasibly make it. Pressure, improper in its nature, had wrongly been heaped upon her.

10.The judge recognised that the normal sentence for offences of attempting to pervert the course of justice was one of immediate imprisonment; generally a substantial period though exceptional cases might warrant a suspended sentence or a community service or a fine.

11.On the facts of this case there were, he said, aggravating features, namely, Wong’s abuse of his position as a barrister; and that there were three acts of impugned communication spread over two months - planned, deliberately timed and thought through as part of an overall design.

12.As against those factors, were mitigating features: that Wong vigorously pursued the interests of his clients although in this case that pursuit did not stay within permissible bounds; that the attempt in this case had, in the event, failed; and that the presentation of the defence in Wong’s trial had been responsible and helpful to the court in that extensive admissions of facts were made and Wong had not attempted to shift responsibility for the drafting of the letters to someone else, for example, to his instructing solicitor, Further, he noted, Wong had no personal interest in the outcome of the case, save a professional one and there were none of the serious features of other cases to which his counsel had referred. He noted the inevitability of professional disciplinary proceedings and he assumed the likelihood of Wong losing his career. No deterrent sentence was warranted as Wong was a person of previous good character and the type of conduct which had resulted in his conviction was not widespread within the profession. The judge placed that conduct “not at the bottom scale of criminality but certainly towards the bottom.”  He found no ground to suspend the sentence and imposed, as we say, a sentence of six months imprisonment.

13.The position of the applicant upon review is that the sentence imposed was manifestly inadequate and/or wrong in principle. It is said that the sentence failed to reflect the gravity of the offence in question and failed to place sufficient emphasis on a number of aggravating circumstances, namely, that it was Wong who instigated and orchestrated the entire attempt to harass the witness; his conduct was persistent and repetitive despite the fact that the witness on more than one occasion made her position clear; his conduct spanned a period of two months and was correctly categorised as planned and thought through against the backdrop of a live trial; and the conduct was aimed at depriving a court of evidence of a crucial witness.

14.The application continues by asserting that the judge gave insufficient weight to the fact that Wong is a barrister and was acting in that capacity when he committed the offence. The conduct is to be viewed, it is argued, in light of the fact that this was not someone seeking to help a friend and it should be recognised that conduct of this nature undermines confidence and trust in legal practitioners. The proper administration of justice relies to a large extent on the integrity of the profession. The argument goes on to assert that the sentence is unduly lenient when compared with sentences passed by the courts of this jurisdiction in respect of those who make threats to a witness not to testify and, by reference to the test applicable upon reviews of sentence, that in all the circumstances the sentence was one which fell outside the range of sentences which the judge applying his mind to all relevant factors could reasonably consider appropriate.

15.For Wong, Mr Harris SC reminds us of the highly limited circumstances in which it is appropriate for this Court to increase the sentence imposed by a court below and draws our attention to what he categorises as unusual circumstances of this case and how it is to be distinguished from some of the cases relied upon by the applicant for review. This was, he contends, a case of overzealous representation rather than a serious attempt to cheat the system and he repeats the factors which he placed before the court below which are features of some other cases absent in this case. He has helpfully taken us to a series of decisions in this jurisdiction and elsewhere showing sentences even lighter than that imposed in this case, for the offence of attempting to pervert the course of justice.

16.It is as well to take the opportunity of this case to sound a reminder of the limited circumstances in which an appellate court will upon a prosecutor’s application interfere with a sentence by an upward adjustment.

17.The full passage from Attorney-General’s Reference No 4 of 1989 [1990] 1 WLR 41 at 45-46 from which the key test to which we have already referred (a sentence is unduly lenient where it falls outside a range which the judge could reasonably consider appropriate) is drawn, merits revisiting. Lord Lane CJ said this :

“ The first thing to be observed is that it is implicit in the section that this court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased-with all the anxiety that this naturally gives rise to - merely because in the opinion of this court the sentence was less than this court would have impose. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.

The second thing to be observed about the section is that, even where it considers that the sentence was unduly lenient, this court has a discretion as to whether to exercise its powers. Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance; where in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned.

Finally, we point to the fact that, where this court grants leave for a reference, its powers are not confined to increasing the sentence.”

18.Insofar as it may be necessary to do so, we respectfully endorse all the sentiments in those passages as applicable to this jurisdiction.  Sentiments to the same effect may be found in a decision of the High Court of Australia to which our attention has been drawn, Everett v The Queen (1994) 181 CLR 295.

19.This is a category of offence in which one is likely to draw limited assistance from sentences imposed in other cases, since the facts which go to the commission of an attempt to pervert the course of justice are so varied.  Some of the cases to which our attention has been taken, and where similar or even lighter sentences than that imposed in this case were imposed, reveal on their face a surprisingly lenient approach; for example only 4 months imprisonment for a death-threat to a witness.  The present case is a prime example of a case in which sentencing is an art rather than a hard-edged approach. It is a case where the experienced sentencer can perhaps more readily secure the “feel” of the impugned conduct, its aim and what was inside the mind of the offender than articulate it, though articulate it he must and did.

20.Wong's conduct was more than mere zealousness in pursuit of a point.  Without an examination of the details and the history, one is likely as a first reaction to wonder how correspondence with a solicitor witness and with the Law Society could constitute the offence. But examination of the detail of this case as explained in our judgment of 2 March, reveals an unusual picture to be gleaned not from any one letter or piece of conduct on its own; it was, rather, a picture of a course of conduct that was in its essential character, devious.  Wong went too far; he was not honest or open in the correspondence which he engineered. Its content and its timing and the failure to mention any of it to the court or to prosecutor and his misleading of the trial court at the last moment reveals the true flavor of the matter. It was conduct which crossed a line from a permissible attempt to enforce a perceived right to a deviousness by which to deflect the course which the proceedings would otherwise take.

21.That then is the “feel” of the matter. Professional lawyers must not behave in that way; not just because it runs fundamentally against the grain of ethical conduct but because it undermines the system bywhichthe courts to seek properly to reach their decisions and because it undermines respect for the profession and confidence inthat system.

22.As against that stands the certainty of professional ruin after 25 years of hard work the fact that there was no personal interest in the outcome of the case save, perhaps, a desire to enhance professional reputation by the securing of an acquittal; the fact that the conduct was devoid of the hallmarks of more serious cases, such as money to secure false testimony; and the fact that the conduct was committed to writing, misleading and calculatedly timed though that writing was.  We pause to remark in relation to professional ruin that on any view, criminality aside, Wong’s conduct as described in our judgment and his conduct in the Yeung trial (which was not relevant to the appeal with which we dealt) was almost inevitably going to result in any event in professional discipline.

23.Further than that, the sentencing judge manifestly approached his task both at trial and in the sentencing exercise most conscientiously and carefully. He is an experienced judge who had the advantage of listening to the evidence over a period of days and the advantage also of seeing and hearing Wong testify. In other words, his experience and his observation and hearing of the testimony, whilst not conclusive of any application such as this, deserves respect for they provided him with considerable opportunity to secure an appropriate “feel” for the gravity of the matter and, thereby, for a just sentence.

24.We are not prepared to say that in the sentence he imposed he was lenient, and we are certainly not prepared to say that the sentence he imposed was either manifestly inadequate or wrong in principle.

25.Accordingly, the application for review is denied.

Ms Charlotte Draycott, SC, instructed by Department of Justice, for the Applicant

Mr Graham Harris, SC, and Mr Benson Tsoi, instructed by Haldanes, for the Respondent