HKSAR v. LAM WING KEUNG

HCMA 129/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 129 OF 2003

(ON APPEAL FROM STCC 1296 OF 2002)

____________________

____________________

____________________

J U D G M E N T

____________________

1. This is an appeal against conviction. The appellant was convicted of attempting to pervert the course of public justice contrary to section 159G of the Crimes Ordinance. He was said to have done that by inducing a key prosecution witness, called Hon Kin-ping, to testify in favour of the defendant in a trial taking place at Fan Ling Magistracy in respect of an offence of an assault occasioning actual bodily harm.

2. It was on 13 September of last year that Mr Hon was waiting outside court to give evidence. He said that it was around 11.35 that the appellant came up to him and spoke to him and told him to mind his words later. He said that the appellant then crossed the room outside of the court and went and stood with the defendant in the assault case and that he spoke to that defendant and the group of people whom that defendant was with, and that he heard the appellant say words to the effect that a wife and daughter lived there, and a place was named, Yue Lung Tsuen, which is where the witness Mr Hon and his wife and daughter lived. He heard the defendant in the assault case respond by saying, "If knew that it's so close, we'll cross the border and buried it first". Mr Hon told the court that he was frightened by that. He immediately telephoned home and to a friend to ensure that his wife and daughter moved immediately. He then telephoned the police officer with whom he had been dealing, who came to court and the arrest of the appellant followed.

3. There was a uniform police officer present at the scene of these matters. He could not speak to having heard any conversation but he confirmed that he had seen the appellant go to where Mr Hon was and speak to him and that, thereafter, the appellant went to speak to the defendant in the assault case who was in a group of people, and that this appellant spoke to people in the group and to that defendant.

4. The appellant gave evidence. He said he had gone to the court to meet a friend of his called Ah Ki because they were intending to go to tea together. He did not arrive at 9:30 when the case was listed, but at about 11 o'clock. He did not see his friend there so he just waited outside the court. After a while his friend Ah Ki came out of the courtroom with a group of other people whom he did not know, that he then went up and spoke to his friend Ah Ki, who told him to wait a bit longer, and he just waited around. He did not know the defendant in the assault case and he never spoke to him. He denied speaking to Mr Hon at any stage.

5. The relation of those facts demonstrates that the issue is one of credibility. There was no suggestion in this case that there was any bad blood between Mr Hon and this appellant. The Magistrate remarked that to invent this allegation against a stranger would be less than credible. Of course, as the Magistrate pointed out, some of the area of dispute was spoken to by the uniform policeman who was there. He confirmed what was in issue between Mr Hon and this appellant, namely, that the appellant went to speak to Mr Hon and that, thereafter, the appellant went to speak to the defendant in the assault case.

6. The Magistrate was in a much better position than I to judge these matters because she saw and heard the witnesses. But on paper one can see the enormous strength of the prosecution case. I have no doubt that the conviction was a right one.

7. Today the appellant has argued before me matters that were raised by his solicitor at trial who, I can see from the transcript, made a very competent closing address. The best of those points that he repeated today is, "If this case had been called on when it should have been, at 9.30, it would all have been over by the time I arrived". That point in fact demonstrates, not that the conviction must be wrong, but merely that the offence was not one that was premeditated. One can quite see how a man might be tempted to act in the way this appellant acted, out of loyalty, without any pre-planning.

8. In those circumstances, the order I make today is to confirm the conviction.