HKSAR v. WONG SHEK CHUEN

HCMA1061/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1061 OF 1998

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J U D G M E N T

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1. The Appellant was charged together with his wife before a magistrate's court, and one of the charges against them was doing an act tending and intended to pervert the course of public justice, contrary to Common Law. The Appellant, as well as his wife, were charged separately for the offence. The charge against the Appellant reads as follows:

"WONG Shek-chuen, on or about the 13th day of September 1997, in Hong Kong, with intent to pervert the course of public justice did an act which had a tendency to pervert the course of public justice in that he asked KWOK Yau-wo to give false information to the officers of Independent Commission Against Corruption, namely, that the said KWOK Yau-wo had not given any parking fee to him, and that monies paid by him as parking fee had been extorted from him by villains."

Kwok Yau-wo was PW2 before the Magistrate. After hearing evidence, the Magistrate convicted the Appellant of the charge; however he acquitted the Appellant's wife, the 2nd Defendant, of a similar charge that was also based on the evidence of PW2.

2. Before me, Mr Yeung, on behalf of the Appellant, sought leave for the Court to listen to a tape which was apparently attached to PW2 as a device to record a conversation that was going to take place between him and the Appellant and his wife. That was Exhibit D4 before the Magistrate. PW2, in chief, told the Magistrate that the Appellant said to him the following:

"You must go when you reach there, say that you did not pay. It was the rascals who collected the money on festive occasion."

3. In the Statement of Findings, the Magistrate set out the offending words as part of his findings in this manner:

"Wong Pak i.e. the Appellant, told PW2 that when he saw the ICAC he should say to them that he did not pay a parking fee, he only paid rascals who collected money on festive occasions."

When the tape was played for the cross-examination of PW2 before the Magistrate, a number of sentences that could be heard from the tape were put to PW2. On one of the occasions, he agreed that the conversation on the material date between himself and the Appellant and his wife started with "Good morning Mrs Wong" and ended with the Appellant's words "You still need not fear." On various occasions in the evidence, PW2 was not sure whether the offending words, if I may so describe them, took place within the conversation as recorded in Exhibit D4 circumscribed by the opening words and the ending words or outside the conversation.

4. When the Magistrate delivered his verdict after considering the evidence, he made these findings. PW2 said that the crucial or offending words allegedly spoken by the Appellant were spoken after "no need to be afraid". The Magistrate concluded that that could not be right. He found that PW2 was wrong on that not because of a lack of honesty, but because as PW2 subsequently explained in his evidence, he could not simply remember the order in which the sentences were spoken in the conversation and he got the order wrong. That conclusion is not challenged by either party .

5. Having the benefit of listening to the tape played before me, I was not able to discern the offending words being uttered by anybody, let alone the Appellant. I asked Mr To, Counsel for HKSAR, as to whether there was any possibility of the offending words being masked or covered by noises or sounds as recorded on the tape between the opening words "Good morning Mrs Wong" and the ending words "no need to be afraid", but Mr To was unable to say so. In the circumstances I do feel that there is a lurking doubt whether the words were uttered by the Appellant at the material time as charged. I think therefore the conviction is unsafe and unsatisfactory.

6. I would allow the appeal. The conviction is quashed and the sentence set aside.