HKSAR v. CHAN PUN CHUNG AND ANOTHER

CACC 469/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 469 OF 1999

(ON APPEAL FROM DCCC NO. 545 OF 1999)

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REASONS FOR JUDGMENT

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Wong JA: (giving the judgment of the court)

1. On 13 October 2000, we dismissed the applications for leave to appeal against conviction but allowed the applications for leave to appeal against sentence. We indicated that we would give reasons and this we do now.

Introduction

2. The applicants are husband and wife. They were charged either jointly or individually with a total of 10 charges of doing an act tending and intended to pervert the course of public justice. Together they were charged in Charges 2, 3, 4, 5 and 6 whilst the husband (D1) was additionally and alone charged in Charges 1, 7, 8, 9 and 10. The trial took place in the District Court before Judge Muttrie which resulted in both being convicted, after a trial, of Charges 3, 5 and 6. The husband was also convicted of Charges 7 and 8. Both applicants were acquitted of the other charges. On 8 September 1999, the judge sentenced the husband to 3 years' imprisonment on each charge, to run concurrently and the wife (D2) to 2 years' imprisonment on each charge, also to run concurrently. Both of them apply for leave to apply against their convictions and sentences.

Facts giving rise to the present proceedings

3. The couple were married in September 1995. The wife originally came from the Mainland and obtained Hong Kong residence in May 1997.

4. D2 was employed at the St Germain Bakery from April 1995 until the middle of 1996. At that time she was in Hong Kong as a visitor. She used the name of MOK Kit-yin when she worked in the bakery but asked her colleagues to call her Hiu Wah or Ah Wah. Among those colleagues were PW1, YAU Yuk-sim, PW3, CHAN Ka-lai, and PW9, LAW Fung-ha. All of them were familiar with D1 who used to telephone D2 at the bakery and regularly came there to collect her.

5. In April 1997 the ICAC carried out investigations into an allegation that D2, assisted by D1, had unlawfully obtained the identity documents of MOK Kit-yin for the purpose of getting a job at the St Germain Bakery. Amongst those documents were a 1992 to 1993 academic report of the Buddhist Wong Wan Tin College and a 1993 Hong Kong Certificate of Education in the name of MOK Kit-yin.

6. In the course of the investigations, PW3, CHAN Ka-lai, on 2 December 1997 at the ICAC offices, in what has been referred to as an identification parade, but was really a confrontation, identified D2 as MOK Kit-yin. On 8 December 1997 PW3 telephoned PW7, KWAI Wing-man, an assistant investigator with the ICAC, and asked that a second identification parade be arranged, because she was afraid that she might have mistaken the person MOK Kit-yin whom she had identified. In fact, no further identification parade was arranged.

7. Following on the investigations, and on the advice of the Department of Justice, D1 and D2 were jointly charged with one count of conspiracy to obtain a pecuniary advantage by deception, on 17 January 1998. The trial was heard at South Kowloon Magistracy on 18 and 19 January 1999. Amongst the prosecution witnesses at the trial were YAU Yuk-sim, LAW Fung-ha and CHAN Ka-lai. Both were convicted.

The prosecution case

8. It is against this background that the present charges arose. The evidence against the applicants came principally from three witnesses, PW1, PW3 and PW9. PWl testified that she was approached by D1 on 3 October 1997 over the phone asking her about the ICAC investigations and told her not to identify D2 in court. Subsequent meetings took place between the applicants and PW1 on dates as specified in Charges 2, 4, 5 and 6. On the date that was alleged in Charge 5, PW3 was also present. At that meeting, D1 told both PW1 and PW3 not to identify D2 when they gave evidence in court.

9. PW3 gave evidence that she identified D2 from among a group of women in a lift lobby at the ICAC offices on 2 December. On 4 December, PW1 arranged to meet her after her driving lesson at the driving school in Shatin. She saw D1 and D2, but not PW1 in a car when she came out from the driving school at about 10 p.m. D1 invited her to get into the car and drove to an unknown location. On this occasion, D1 accused her of being stupid in identifying a person and said if she had not pointed out D2 the case would be over. He asked her to telephone the ICAC to change her statement saying that she had pointed out the wrong person. PW3 later reluctantly telephoned a Miss Kwai of the ICAC and asked for another identification parade to be arranged. Miss Kwai told her to think it over carefully. She did not telephone again. There was another meeting on 10 December after her driving lesson. The applicants were waiting for her in Dl's car. PW3 told them about her telephone conversation with Miss Kwai. In reply, D1 told her if she was asked to identify Mok Kit-yin in court, she should say that there was no such person in court. She insisted that D1 did not ask her to tell the truth in court when this was put to her in cross-examination.

10. The evidence given by PW9 was that she received a phone call from a man telling her not to identify his wife in court and not to play tricks. He said that if the witnesses did not identify D2 he would treat them to tea and dim sum. She recognised the voice to be that of D1. The parents of PW3 also received phone calls from a man who left a message for PW3 to "behave wisely tomorrow" or "behave carefully, do wisely tomorrow". This was on 18 January 1999, the night before the trial.

The Defence case

11. The applicants gave evidence. The gist of it was that the applicants did not approach either PW1 or PW3. It was PW1 and PW3 who came to them first to seek advice because they had been troubled and confused by ICAC investigations who wanted them to give evidence and taught them what evidence they should give. D1 said that he just told them to tell the truth and did what they had to do.

Evaluation of evidence by the judge

12. The judge evaluated the evidence with meticulous care and fairness. In relation to Charges, 1, 2 and 4, he was not prepared to act on the evidence of PWl without support of other evidence because PW1 had made some concessions favourable to the applicants under cross-examination of which the judge felt obliged to take cognisance. He was not clear why PW1 did this. But the judge had no difficulty in finding that PW3 and PW9 were honest and reliable witnesses. He rejected the evidence given by the applicants and found some of the charges proved beyond reasonable doubt. Although Charge 6 took place on 11 December when only D1, D2 and PW1 were present, the judge was satisfied that by that stage there were surrounding facts and circumstances arising from PW3's failure to get a fresh identification parade which tended to support PW1's evidence. The defence on this charge was a bare denial which the judge did not believe. In contrast, there was no surrounding facts or circumstances capable of supporting PW1's evidence in so far as Charges 1, 2 and 4 were concerned. It was on this basis tht the judge acquitted the applicants.

13. The applicants were not legally represented when they appeared before this Court on 8 August 2000. We granted their applications for an adjournment to obtain legal representation. They have now done so and are represented by Counsel, Mr. Y.C. Yeung.

Grounds of Appeal Against Conviction

14. The Perfected Grounds of Appeal Against Convictions drafted by Mr. Yeung on behalf of the applicants bear no relation whatsoever to the evidence or the judge's findings. They are merely complaints alleging incompetence and/or misconduct on the part of counsel who appeared for the applicants at the trial. These complaints are set out in two paragraphs and they are as follows :-

1. The learned trial counsel erred in failing to object to unfair questions by the prosecution, to effectively cross-examine the prosecution witnesses and to understand the Applicants' instructions properly, adequately or at all. As a result, the Applicant had not been accorded a fair trial.

2. The learned trial counsel also erred in declining the Applicants' request to have their trial counsel changed. As a result, the Applicants have been deprived of their right to be represented by counsel of their choice at the trial.

D1 has filed an affirmation in support of the allegations. Mr Roderick K.F. Wu, the trial Counsel, responded in a letter dated 21 September 2000 refuting the charges. At the outset of the hearing, Mr. Yeung was drawn to the attention of paragraph 5(i) of Practice Direction - 4.2 on Criminal Appeals to the Court of Appeal :

"Where solicitor or counsel settles grounds of appeal, it is his duty to ensure that -

(a) grounds are only put forward where he has satisfied himself that they are arguable, it is not his duty to put forward grounds merely because the appellant wishes him to do so;

(b) grounds are not put forward unless they are 'reasonable', that is, they afford some real chance of success;

(c) grounds are not put forward unless they are supportable by oral argument and are particularised;

(d) the grounds put forward are settled with care and accuracy."

An identical practice direction was pronounced by the English Court of Appeal in the case of Michael Patrick Doherty & Susan Mcgregor [1997] 2 Cr.App.R. 218 at 219D. Having been so reminded and after consulting his lay clients, Mr. Yeung informed the Court that he was unable to argue these grounds on behalf of the applicants. D1 then took on the task himself to address the Court on his own behalf and on behalf of his wife. We have carefully considered his arguments and found no substance in them.

15. It is not necessary for us to go into the contents of D1's affirmation or Mr Wu's letter. Suffice it to say that we have read and considered them. The law is well settled that it is only in wholly exceptional circumstances such as flagrant incompetence or totally insupportable advice that the conduct of counsel could form the basis for an appeal. Each case must depend on its own facts : R v Cheung Wai Kwong and Another [1997] HKLRD 344. It would be apposite to recite a short passage from the judgment of P. Chan J (as he then was) at p.347A. He said :

"We have carefully considered the written and oral submissions presented to us. In our view, this is a typical case where the applicants have no other ground of appeal except to try to put the blame on trial counsel. This is not a case where due to the flagrant incompetence or totally insupportable advice of counsel, the defence had not been put before the jury giving rise to a doubt whether the applicants had a fair trial or not."

We share these sentiments. This is precisely the situation in the case before us. We have carefully examined the transcript and are unable to detect any irregularities or matters that would support the applicants' allegations. Mr Wu had examined and cross-examined the witnesses at some length and in detail which adequately covered the various aspects of the case. The threshold to establish a ground of appeal on the basis of flagrant incompetence or insupportable advice is a high one and the applicants have not passed the test.

Conclusion

16. There is no merit in the applicants' complaints. The evidence against them is overwhelming. The convictions can in no way be said to be unsafe or unsatisfactory. The applications for leave to appeal against conviction by both applicants must be dismissed.

Sentence

17. We turn now to the applications for leave to appeal against sentence. In passing sentence, the judge made these observations :-

“This is a serious matter especially because D1 was at the relevant time a serving police officer. An immediate custodial sentence is the norm where a police officer is convicted of this offence. The sentence can be anything from a few months to several years. 41/2 years imprisonment was held appropriate in the case R. v. YEUNG Kwok-fai Cr.App.No. 784 of 1980."

18. It was submitted by Mr. Yeung, who represented the applicants on sentence that the judge erred in placing too much emphasis on the fact that D1 was a serving police officer at the time of the offences. He argued that D1, although a serving police officer at the time, had not made use his position as a police officer to commit the offences. There was no abuse of his police power. There was no use of force and the threats, comparatively speaking, were mild. He relied principally on two decisions. The first one was Attorney General v Yeung Sau Shing [1981] HKC 129.

"Yeung was charged with attempting to pervert the course of public justice. At the relevant time, his friend was faced with a potential charge of assaulting a Mr Wai. Yeung approached and offered money to Mr Wai asking him not to testify against his friend. He was sentenced to two month's imprisonment but with the imprisonment suspended for 12 months. On an application for review by the Attorney General, the Court of Appeal imposed a sentence of 9 months to take immediate effect."

In delivering the judgment of the Court, Cons JA (as he then was) said :

"We are unfortunately not agreed as to what would have been a proper sentence at first instance. The lowest view is of 12 months' imprisonment, although the majority of us would have put it considerably higher."

Of course, Yeung Sau Shing was not a police officer.

19. The second case was Attorney General v Poon Ping Kwok and Another [1992]2 HKCLR 231. The respondents were a Police Superintendent and a Detective Sergeant respectively and were each convicted in the District Court of two charges of doing acts tending and intended to pervert the course of public justice. The first respondent was sentenced to concurrent terms of six months and eight months imprisonment whilst the second respondent was sentenced to concurrent terms of six months and twelve months imprisonment. The Attorney General applied for a review of the sentences. In delivering of judgment of the Court of Appeal, Cons V.P. referred to a passage in Attorney General v Yeung Sau Shing where it was observed that :

"It is not in dispute that attempting to pervert the course of justice is always a serious offence, although that being said, the actual gravity in any given situation will depend upon the circumstances, which may vary very widely from one case to another."

He later continued at p.234 :

"Mr Keane, Q.C., has suggested that this factor becomes less important the further the offence is removed from the offender's duties as a police officer, and that it should have no influence at all where the offence is incidental thereto and the offender "merely happens to be" a police officer. That may be so, but is of no help to the respondents in the present instance. The conduct they were trying to conceal from the investigating officers was committed while they were supposed to be on duty and was inextricably linked to their responsibilities as police officers, as to which, as we mentioned in our earlier judgment, they acted with cynical disregard.

For this reason we took the view that the sentences imposed below were manifestly inadequate. In our view the false and misleading statements merited sentences of 18 months and the telephonic persuasion of the 2nd respondent, 2 years."

It seemed to us that there was some force in Mr Yeung's argument that at the time of the commission of the offences, D1 was not acting in his capacity as a police officer; he was not on duty and his acts were not inextricably linked to his responsibility as a police officer but he "merely happens to be" a police officer. In the present circumstances, we were therefore of the view that the sentence of 3 years imposed on D1 was manifestly excessive. The judge accepted that D2, the wife, played a lesser role than D1, the husband, and her sentence must also be proportionately reduced. Accordingly, we granted leave and treated the applications as the hearing of the appeals. We reduced the sentence of D1 to 2 years and 3 months imprisonment on each charge, to run concurrently and the sentence of D2 to 16 months imprisonment on each charge, also to run concurrently. The sentences would commence to run from 8 September 1999.