Brian Alfred Hall v. HKSAR

Press Summary (English)

Press Summary (Chinese)

FAMP No. 3 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2013

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BETWEEN

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REASONS FOR JUDGMENT

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Mr Justice Ribeiro PJ:

1.This is the judgment of the Court.  At the hearing, we dismissed the respondent’s application with reasons to be provided later.  These are our reasons.

2.This is an unusual case in which the respondent (the prosecution) seeks to re-open a judgment of this Court and to have it set aside on the ground that it was obtained by the fraud of the appellant (the defendant).

A.   The relevant proceedings

3.While serving a sentence of 18 years’ imprisonment imposed on 23 June 1998 for drug trafficking, the defendant was convicted on 3 June 2005 for common assault on a Correctional Services Department officer after trial in the Magistrates’ Court.[1]  He was sentenced to six months’ imprisonment consecutive to his existing 18 year sentence.  His appeal to the Court of First Instance[2] against conviction and sentence was dismissed on 7 February 2006.

4.The defendant then sought leave out of time to appeal to this Court, relying on an affirmation dated 13 October 2008 which exhibited two statements purportedly made by the two CSD officers who had testified against him at the assault trial.  The statements, which the defendant said he had come across by chance and had then obtained from the CSD, differed materially from the officers’ witness statements and their testimony at the trial.  They had not been disclosed to the defence.  Leave to appeal was granted and, on the hearing of the appeal, counsel for the prosecution conceded that the conviction could not be supported, given the existence of those undisclosed statements.  Accordingly, on 30 June 2009, the Court quashed the defendant’s common assault conviction.[3]

5.The Court did not know that doubts had been cast on the genuineness of the documents tendered by the defendant and that an investigation was then underway.  The defendant’s similar use of certain documents in connection with three other cases – two of common assault on prison personnel and one involving offences against prison discipline – was also under investigation.  Although the prosecutor knew that the CSD officers concerned had denied making the statements being relied on by the defendant before this Court and that an investigation was in progress, he did not consider it necessary to inform the Court of the position and did not apply for the appeal to be adjourned, as one might have expected.

6.Those investigations led to the defendant being charged with and (after a 96 day trial) convicted of doing acts tending and intended to pervert the course of public justice in relation to the appeal heard by this Court.[4] The Judge found it proved beyond reasonable doubt that the defendant had instructed someone outside the prison to help forge the documents concerned (including those exhibited to his abovementioned affirmation), his purpose being to use them to mislead the judges with a view to gaining an unfair advantage for himself in the proceedings.[5] 

7.The Judge also convicted the defendant on two other charges of perverting the course of justice and one charge of using copies of false instruments which he knew or believed to be false.  Those convictions related to the three other cases mentioned above.  They involved his tendering similar documents in attempting to overturn two convictions for assault for which he had been sentenced respectively to a fine of $1,500 and two months in prison. They also related to his use of similar documents with a view to mounting a judicial review challenge to his cumulative loss of 440 days of remission of sentence resulting from 60 adverse disciplinary decisions.  The Judge sentenced him to four years’ imprisonment on each of the abovementioned charges, to run concurrently.

8.His appeal against conviction was dismissed by the Court of Appeal on 5 February 2013.[6] On the prosecution’s application for a review of the Judge’s sentences, the Court of Appeal held that the four-year sentence for deceiving this Court was manifestly inadequate.  It noted that the offence was carefully planned, involving outsiders and multiple forged documents.  It involved accusing CSD officers of framing him and committing perjury, putting their reputations and careers at risk.  His scheme took up much public expenditure and judicial time, “immersing the judicial and prison systems in a stew of deception”.[7]  It was an offence which “strikes at the very heart of the system by which law and order is enforced in society” threatening to “destroy public confidence in that system”.[8]  Their Lordships therefore increased the sentence to one of six years’ imprisonment.

9.Their Lordships also held that the Judge should not have ordered all the sentences to run concurrently:

“Each offence added to the culpability of the offender. So consecutive sentences were, in principle, warranted. But the totality of wholly consecutive sentences for the four offences would be dramatically excessive. We adjudge a totality of 8 years’ imprisonment to be the least that would properly be warranted; but given the jurisdictional sentencing limit of the District Court, that totality must be reduced to one of 7 years’ imprisonment. ... Since that sentence is greatly in excess of the original sentence, we shall reduce it further by three months and secure a total of 6 years 9 months’ imprisonment.”[9]

B.    The present application

10.The prosecution has very properly brought the present application[10] to enable the Court to consider what, if any, steps should be taken in the light of the developments subsequent to the defendant’s successful appeal.

11.There is no doubt that the Court has a discretionary power to re-open an appeal where a reasonable basis exists for alleging that its judgment was obtained by fraud.  There is no express provision concerning the re-opening of appeals in the Court’s statute,[11] but it is clear that the Court has an implied power exceptionally to order an appeal to be re-opened where justice so demands, such power being reasonably required for the effective exercise of the judicial power granted by the Basic Law.[12]

12.In deciding whether that discretion should be exercised, the Court should obviously take all relevant considerations into account.  It is necessary first to consider what purpose would be served by re-opening the appeal.  In a case like the present, a question of central importance is whether it would be the Court’s object to reinstate the original sentence of six months’ imprisonment for the defendant’s assault on the CSD officer if it were to be found after inquiry that its judgment was obtained by fraud.  If that sentence would not be reinstated even on a finding of such fraud, that would be a powerful argument against re-opening the appeal.

13.In our view, in the light of the successful prosecution of the defendant for perverting the course of justice and of the very substantial sentence – increased by the Court of Appeal from four to six years – imposed to punish him for his deception of this Court, it would not be appropriate to reinstate the original six-month sentence.  The six-year sentence reflects the defendant’s overall criminality, including his attempted evasion of the original six-month sentence.  It sufficiently demonstrates that perverting the course of justice does not pay, but results instead in a severely increased sentence.  Moreover, the Court of Appeal’s capping of the overall sentence at six years and nine months, applying the totality principle and avoiding excessive disparity with the previous sentence, provides a further reason for concluding that the original six-month sentence should not, in the present case, be reinstated as an addition to that overall sentence.

14.Once that conclusion is reached, it becomes clear that the re-opening of the appeal and, if fraud is established, the setting aside of the Court’s judgment would have only symbolic value and no practical consequences.  It would serve to mark the Court’s condemnation of the deception practised upon it and to remove from the Court’s record a judgment fraudulently obtained.  That is, however, a relatively inconsequential benefit.  No one could possibly doubt the condemnation of the defendant’s attempted perversion of the course of justice reflected in his being ordered to serve an additional six years and nine months in prison.  Mr Wesley Wong SC submitted on the prosecution’s behalf that the Court should aim to reverse the fraudulent expunging of the defendant’s conviction for assault.  However, while that conviction has been expunged, it has been replaced by a conviction recording the defendant’s fraudulent conduct and carrying a far heavier sentence. 

15.While there may be some room for argument, in our view, the present application for the Court to re-open its appeal and to set aside its judgment should be approached on the basis that it falls within the category of civil proceedings, separate from the underlying criminal proceedings concerning the assault.  Section 62 of the Evidence Ordinance[13] therefore applies, materially providing as follows:

“(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in Hong Kong shall ... be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; ...

(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in Hong Kong –

(a) he shall be taken to have committed that offence, unless the contrary is proved; and

(b)   without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge on which the person in question was convicted, shall be admissible in evidence for that purpose.”

16.It follows that while reliance can be placed by the prosecution on the defendant’s District Court conviction as evidence that he did obtain the judgment by fraud, the defendant would be entitled under section 62 to seek to prove the contrary.[14]

17.It seems likely that if the Court were to re-open the judgment to determine whether its judgment was in fact obtained by fraud, it would have to remit that issue to a first instance court for trial and a report.  Bearing in mind the 96-day duration of the trial which has already taken place, the risk of such remitter proceedings being protracted must be recognized.  The judicial and public resources which would have to be employed are likely to be wholly disproportionate to the merely symbolic potential value of the exercise.  The Court would not be deterred by such considerations if the offence in question was serious and the public interest demanded determination of the fraud issue.  But the present case does not bear those characteristics.  

18.In our view, the abovementioned considerations weigh decisively against the re-opening of the appeal.  We also think it relevant to take account of the fact that the prosecution contributed to the defendant obtaining the Court’s judgment by conceding the appeal without mentioning the ongoing investigation and without seeking an adjournment. 

19.For the aforesaid reasons, the Court declined to exercise its discretion to re-open the appeal and dismissed the application while making it clear that no criticism of the prosecution is thereby intended.

20.We wish to express our gratitude to Mr Jeffrey Chau who acted as Amicus Curiae and provided the Court with thoughtful and comprehensively researched submissions which were of great assistance.

Mr Wesley WC Wong SC and Mr Andrew HC Li of the Department of Justice for the Respondent (Applicant)

Mr Gerard McCoy SC and Mr Timothy Parker instructed by Tso, Au, Yim & Yeung and assigned by the Legal Aid Department for the Appellant (Respondent)

Mr Jeffrey Chau, Amicus Curiae