HKSAR v. CHO WING NIN AND OTHERS

DCCC360/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.360 OF 2011

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Reasons for Verdict

1.   There are 3 defendants in this case. Together they face one charge of doing acts tending to pervert the course of public justice, and one charge of misconduct in public office. They all pleaded not guilty to the charges.

Background

2.   The defendants were ICAC officers involved in the investigation of a case of fraudulent warrant trading. PW1 Cheung Ching Ho was one of the suspects in that case. There were various meetings between PW1 and the defendants after PW1’s arrest, resulting in PW1 becoming an immunity witness in the trial (“the 1^st warrant trial”) arising from that investigation.

3.   When it came time for PW1 to give evidence in the 1^st warrant trial, PW1 refused to do so. The trial nevertheless proceeded without PW1’s evidence. Meanwhile, as a result of PW1’s refusal to give evidence, he lost his immunity and was charged for his role in the fraudulent warrant trading.

4.   In PW1’s own warrant trading trial (“the 2^nd warrant trial), PW1 applied to stay proceedings on the ground that ICAC officers had coached him in the giving of evidence in relation to the 1^st warrant trial where he was supposed to be an immunity witness. Upon the court’s refusal of his application to stay the 2^nd warrant trial, PW1 pleaded guilty to the various charges and was sentenced to a total of 25 months’ imprisonment.

5.   The present trial is in relation to the 3 ICAC officers who had allegedly coached PW1 in the 1^st warrant trial.

6.   It is the prosecution’s case that in various meetings, the defendants had taught PW1 what to say in the trial, shown PW1 the witness statements of the other immunity witnesses, told PW1 to memorize his witness statements, taught PW1 how to lie about his evidence and hinted to PW1 that he could read his own witness statement even after he had commenced giving evidence. Those acts of the defendants amounted to acts tending to pervert the course of public justice, as well as being misconduct by a public officer.

7.   It is the defendants’ case that whatever any of them had said in those meetings to PW1 was only to ensure that PW1 would give ‘true and full’ evidence at the 1^st warrant trial.

8.   It is further D3’s case that he was merely attending those meetings with PW1 pursuant to being ordered to do so. If there was anything done tending to pervert the course of justice or amounting to misconduct for a public officer, he was not part of any such enterprise.

Issues

9.   The first issue is the finding of the relevant facts. If the prosecution cannot prove beyond reasonable doubt that PW1 is telling the truth about what took place in the meetings with the defendants and how the defendants had taught him to give evidence or lie, then there can be no conviction on either charge.

10.   If the prosecution can prove beyond reasonable doubt that PW1 is telling the truth, then they must go on to prove that what the defendants did were acts tending to pervert the course of justice in relation to charge 1, and that the defendants had without reasonable excuse and justification wilfully misconducted themselves on those occasions in relation to charge 2.

11.   Defence counsel very reasonably accepted that if the prosecution can prove beyond reasonable doubt that PW1 is telling the truth, there is not much dispute that the defendants could be guilty of both charge 1 and 2.

Evidence

PW1 Cheung Ching Ho

12.   As mentioned above, PW1 is now serving a 25 months’ sentence as a result of the 2^nd warrant trial.

13.   PW1 was arrested by ICAC officers for charges in relation to that case on 20^th May 2008. He was then in contact with certain ICAC officers during the investigation of that case. The nature of the investigation was in relation to warrant pushing for which PW1 was eventually sentenced on 30^th May.

14.   During the investigation when PW1 was under investigation by the ICAC and up until he was sentenced, he had had regular contact with officers of the ICAC. Subsequent to his arrest, PW1 made a total of 4 non-prejudicial statements, which he had made without legal representation. PW1 also made witness statements in relation to the 1^st warrant trial.

15.   PW1 confirmed that D1, D2 and D3 had represented themselves as ICAC officers during the investigation of the warrant trading case. D2 was the person who had taken part in the making of PW1’s NPS. They included the NPS dated 23^rd July and 30^th October 2008. PW1 made a third NPS on 28^th August 2008 in relation to an identification parade he attended.

16.   PW1 cannot recall the date when he first met D2, only that it was after June 2008, after his arrest. PW1 also met D1 on that same day. As for D3, PW1 also cannot recall when exactly he met him, but it should be after September or October in 2008, after PW1 had already met D1 and D2.

17.   In the second half of 2008 from June to December, PW1 had met with D1 for about 5 times, with D2 for many times but PW1 really cannot recall how many times. PW1 met with D2 for more times than with D1. PW1 cannot recall how many times he had seen D3 in that same period of time, but it was on less number of occasions than he had with D2.

18.   In the meetings that PW1 had with the defendants in that period, usually PW1 would meet with 2 of them on each occasion. In that period, the meetings were held at different locations, including a tea house in Whampoa Garden and the Pacific coffee shops, most of them were in Hung Hom. PW1 also met with them at the headquarters of the ICAC for about 2-3 times.

19.   The arrangements for the meetings were generally made by the ICAC. They would call PW1 over the phone. It was usually D2 who telephoned PW1 at PW1’s mobile phone, number of which PW1 can no longer recall. PW1 always agreed to go to the meetings.

20.   In those meetings, PW1’s conversation with them concerned the investigation to the warrant trading case.

21.   A few days before the trial commenced for that case, PW1 received from the Department of Justice an immunity from prosecution.

22.   At some stage, there was discussion with the ICAC about the possibility of PW1 giving evidence in 2 District Court consolidated criminal trials arising out of the fraudulent warrant trading investigation. PW1 was called to give evidence on 7^th December 2009 in that trial but he refused to give evidence. By this time, PW1 had retained legal advisors with Ms. Virginia Szeto (PW4 in our present case).

23.   PW1 was subsequently charged with similar charges of fraud in relation to the warrant trading in the case of DCCC 1443/2009. PW1 was represented by Senior Counsel and junior counsel. In June 2010, there was application to stay those proceedings but PW1 was unsuccessful. PW1 then pleaded guilty as charged and he was convicted and sentenced.

First half of 2009

24.   PW1 was on ICAC bail when he was arrested on 28^th May 2008 through to the first half of 2009. During the first half of 2009, PW1 had contact with the 3 defendants. The pattern of his contact with them was similar to that as mentioned above for the period between June to December 2008. They continued to have meetings in coffee shops and tea houses. PW1 cannot recall if they met in this period on ICAC premises.

25.   Later on in 2009, PW1 was granted the immunity, just before the commencement of the trial in November 2009. In the first half of 2009, PW1 was told that the reason for arranging to see him was just to talk to him to take statement from him. They did not ask PW1 to make any statement in that period. PW1 was given a lot of transaction records to read. The defendants also disclosed the facts of the case to PW1, and sometimes would tell him about the statements given by the accomplices in the case. The accomplices included Lee Wai Ming, Wong Ho Yin, Leung Yiu Kei, Lee Wai Tung, Chan Wing Tung, Mak Kai Tong, Tse Tai Tai. They were all connected to the warrant trading that PW1 was arrested for.

The 3^rd November 2009 meeting

26.   PW1 met with D2 and D3 on 3^rd November 2009 at Tai Hing tea house in Tseung Kwan O, East Point City. The meeting started some time after 2pm on that day. PW1, D2 and D3 were present at the meeting which lasted about 2 hours, ending at around 4:30pm. After that meeting, PW1 walked home since he lived nearby. Also after the meeting, PW1 made some notes of what was said at the meeting. The reason why he made those notes was because it was the advice of his lawyer. PW1 had also made notes on previous occasions in relation to other earlier meetings prior to the 3^rd November meeting. There were a total of 2 times prior to that. They were also done as a result of legal advice. Other than for the fact that PW1 had received advice to do that, there was no other reason he made a record of the meetings.

27.   When PW1 made those notes, he did not know what the notes may eventually be used for. As at 3^rd November, PW1 said they were teaching him to give evidence. PW1 did not feel comfortable about the meetings with ICAC officers in places like tea houses, teaching him to give evidence, because it was improper method of doing things. PW1 still went along to the meeting despite feeling uncomfortable because at that time he wanted to get the immunization and so he cooperated with them. Prior to 3^rd November, there was already mention about obtaining immunity from prosecution with D2. The matter was discussed with D2 on many occasions. As at 3^rd November 2009, the position of immunity of PW1 was not specified by D2, just that PW1 was going to be granted immunity “the following week”. PW1 worried that if he did not attend those meetings, he might make them angry. It was never explained to PW1 why those meetings were not conducted on ICAC premises. It seemed to have been mentioned that it was just to make the meeting to be less formal.

28.   During the 3^rd November 2009 meeting, it is PW1’s recollection that no one had come and then gone and D2 and D3 stayed throughout the meeting. Neither D2 nor D3 had taken any notes during the meeting, nor did they tell PW1 that they were recording the contents of the meeting. PW1 did not ask them if he could take notes for record because PW1 simply did not think about that at the time.

29.   As mentioned above, PW1 did make notes of this meeting after it was concluded. He made the notes about one day afterwards. At that time, PW1 had a clear recollection of the events that took place in the tea house. PW1 can no longer remember now, in the witness box, everything that was said inside the tea house, but he can remember a small part. During the giving of his evidence, PW1 was allowed from time to time to refresh his memory with the contemporaneous notes he made of the meeting.

30.   According to PW1, in the beginning, the defendants talked about the arrangement of going to court. As at 3^rd November, PW1 did not know when the trial was going to start. The defendants did not tell PW1 when he was going to give evidence in the trial. They reminded PW1 to say that in their meetings they did not discuss about the facts of the case, that they mainly talked about general matters. They then asked PW1 questions and told him to give them the answers.

31.   The defendants asked PW1 about the question why the money would be in the bank account of PW1’s parents and elder brother. When PW1 replied that he did not know how to answer, D2 taught PW1 to say that it was because PW1 did not want others to know the money was kept with PW1. They told PW1 to say that the money would be taken out when necessary, which was mainly to hand over to Raymond Ng, the main perpetrator in the fraudulent warrant trading scheme and a defendant in the 1^st warrant trial.

32.   Although it was true that the money was deposited into PW1’s parents and elder brother’s account, it was not true that it was mainly for transferring to Raymond Ng. It was in fact D2 who taught PW1 to say that it was mainly for the transferring of money to Raymond Ng. PW1 did not agree to say that.

33.   After the discussion of the money lodged with the family, D2 also asked PW1 to pay attention to the matter of the source of the money.

34.   PW1 gave evidence that at the 3^rd November meeting, after the family money lodging matter, they talked about the source of the money for the accomplice or brothers. D2 told PW1 that it was mentioned in the statements of the accomplices that the wages for the accomplice (the ‘brothers’) was in the form of salary and bonus. D2 told PW1 to say when giving evidence in court that “they are responsible for the numbers for the heads, the risk is very high, more money has to be earned as the reward.”

35.   According to PW1, he had during the course of investigation by the ICAC of the fraudulent warrant trading case contacted the ‘brothers’ to try to persuade them to become immunity witnesses. It was D2 who suggested PW1 to make the contact. On one particular occasion some time between July and October 2008, while D2 was at the home of one of the ‘brothers’ Leung Yiu Kei, D2 contacted PW1 over the phone and told PW1 to talk with Leung. PW1 remembered that Leung asked PW1 if Leung should cooperate with the ICAC and PW1 told him that there was no problem to do so.

36.   At the 3^rd November meeting, PW1 recalled that D2 had told PW1 not to mention anything about PW1 persuading the ‘brothers’ to cooperate with the ICAC and to become immunity witnesses. D2 told PW1 not to tell anyone if asked that PW1 had talked with the brothers about that.

37.   D2 also told PW1 to say when being asked about PW1’s meetings with the ICAC officers in court that PW1 and the officers seldom talked about the case and that they only talked about unrelated matters, or in colloquial terms, “shooting the breeze”. D2 told PW1 that the reason why PW1 should say that in court was because D2 did not want others to know that D2 had explained to PW1 what the other accomplices had said in their statements, since that would amount to perverting the course of justice. PW1 understood what D2 meant at that time and agreed to the ICAC officers’ suggestion.

38.   It must be point out here that PW1 said in the witness box that he could not actually recall who said what at the 3^rd November meeting, but since it was mostly D2 who did the talking, he just attributed all that was said to D2. D3 was all along seated next to D2 at the meeting.

39.   PW1 continued to give evidence, saying that D2 had also taught him how to give evidence in court. D2 told PW1 to be simple when giving evidence, not to give long answer so as to avoid the defence having the chance to come up with follow up questions, that the more PW1 said the more dangerous it would be. When answering questions, PW1 should just answer yes or no, agree or disagree.

40.   D2 told PW1 that when answering questions the most important thing is to be calm. D2 also told PW1 that the court interpreter will be sitting next to him when giving evidence, that defence counsel will try to make PW1 become emotional and irritate him so that PW1 would not be able to think clearly, that PW1 should look at the judge and not to speak too fast.

41.   D2 told PW1 to be careful not to lose his temper and not to look in the direction of the dock so that PW1 would not be under so much pressure. PW1 was also told to listen carefully to the questions of the defence counsel and to be careful not to fall into traps.

42.   According to PW1’s evidence, on the morning of PW1’s arrest in May 2008, 2 officers of the ICAC had already made suggestions to him to give evidence against the main perpetrator, Raymond Ng, in the 1^st warrant trial. It was agreed between PW1 and 2 officers surnamed Lee and Lai that as long as PW1 gave evidence against Raymond Ng and the employees of the 4 main warrant issuers, the ICAC would not prosecute PW1, would not confiscate his assets and would not harass his family members. The officers also promised that there was a chance that they could also rescue PW1’s ‘brothers’ in the fraudulent trading of warrants. PW1 accepted their offer.

43.   PW1 recalled that as early as 29^th May 2008, the day after his arrest for the fraudulent warrant trading, after PW1 had made his initial statement, there was already mention about him becoming an immunity witness. PW1 however did not have any such discussion with the defendants at that time since he did not know them yet.

44.   It is PW1’s evidence that at the 3^rd November meeting, D2 told PW1 not to mention in the upcoming trial that there had been such an agreement between himself and the 2 ICAC officers. By reason of D2 asking PW1 not to so mention, PW1 knew that D2 and D3 must have known about the said agreement.

45.   PW1 was told by D2 and D3 that their superior, D1, will meet with PW1 some time around 27^th and 28^th November to have a final rehearsal with PW1 to see if he performed well in answering questions.

46.   On the second day of his giving of evidence, PW1 told the court that he no longer wished to continue to give evidence because his head hurt when he tried to think back about the incidents. The case was adjourned for PW1 to be medically assessed. PW1 resumed giving evidence 2 days later.

47.   At the 3^rd November meeting, D2, in the presence of D3, told PW1 that once the warrant trading trial started, they will not be able to see each other as before, but that special arrangement will be made for them to meet should there be something missing in PW1’s testimony in that trial. PW1 recall that D2 did say it was an improper course of dealing with the matter.

48.   At this point of PW1’s evidence, Mr. Oderberg for the prosecution decided to adduce 2 tape recordings into evidence and to proceed to examine PW1 on 2 meetings that PW1 had secretly made an audio tape recording of. They are the meetings between PW1, D2 and D3 on 23^rd November 2009 and between PW1, D1 and D2 on 3^rd December 2009. Because the transcripts for the other meeting was not ready, the recording for the 3^rd December meeting was played out in court first.

The 3rd December 2009 meeting (recorded)

49.   On 3^rd December 2009, PW1 placed a digital recording pen under his clothing before he met with D1 and D2. The recording device was switched on before PW1 boarded the car that D2 drove to pick him up in Tseung Kwan O. PW1 was taken to the ICAC headquarters in North Point where he had a meeting with D1 together with D2. The device recorded the full session.

50.   After the meeting had concluded and PW1 left the ICAC headquarters, he took the device to be safe kept by his solicitor, Ms. Virginia Szeto.

51.   PW1 confirmed that the persons identified in the transcripts as A, B and C were D2, D1 and himself respectively.

52.   PW1 was then asked to clarify parts of the tape recorded meeting. At counter 56, he confirmed that when he referred to someone as ‘your boss’ whilst talking to D2 in the car, he was referring to D1, Kevin Cho.

53.   In relation to counter 57, PW1 said that D1 had on a previous occasion told him to say that PW1 lost his assets through gambling on horse racing. PW1 said this was not true, and he had never told D1 that it was true. D1 taught PW1 at that previous meeting to say that he had gambled in cash so that there will be no evidence of his gambling. PW1 explained that D1 said he should say that he lost his assets through gambling because D1 did not want others to know that there was any agreement between PW1 and the ICAC to not confiscate PW1’s assets.

54.   According to PW1, when he asked D2 ‘what do I answer’, PW1 thought that there would be some other answer that D2 would prefer him to give, an answer that suited D2. Therefore PW1 would just see what answer D2 would suggest and then he would comply.

The 23^rd November 2009 meeting (recorded)

55.   PW1 had this meeting with D2 and D3. He carried another concealed digital recording pen on his person when attending this meeting. He made an audio record of the meeting and after the meeting he handed over the recording device to his solicitor Ms. Virginia Szeto. PW1 had not interfered with the recording before handing it over to Ms. Szeto.

56.   This meeting was arranged by D2 and PW1 went to the tea house to meet with him. D3 was also present.

57.   The tape recording was played in court and PW1 confirmed that the persons identified as A, B and C in the transcripts of the meeting are respectively D2, D3 and himself.

58.   PW1 confirmed that he had brought a piece of paper to write down some figures at that meeting. The paper was produced as an exhibit. According to PW1, the figures on the paper were all first mentioned by D2. PW1 said prior to D2 mentioning those figures at that meeting, he did not know of those particulars and details. It is PW1’s evidence that D2 had some documents with him and he had gotten those figures from those documents, which in turn came from the investigation of the brothers’ bank accounts in the fraudulent warrant trading scheme.

The 13^th November 2009 meeting

59.   PW1 had another meeting with D2 and D3 in Tai Hing tea house on 13^th November 2009. PW1 made contemporaneous notes after the meeting and was allowed to refresh him memory in court.

60.   D2 arranged this meeting to revise PW1’s statements with him. According to PW1, D2 had told him on some occasions that when asked, PW1 should say they seldom talk about facts of the case in the meetings with ICAC officers, that they mainly talked about funny things. D2 told PW1 that if the defence knew about what they were really talking about in the meetings, it would be troublesome.

61.   After the 13^th November meeting, the 3 of them travelled to the District Court for PW1 to familiarize himself with the surroundings. During the drive to the court building, in the car, D2 said that he had read the statements of PW1 and the brothers, and found a few points that were present in the brothers’ but not PW1’s statements. D2 asked PW1 to pay attention to the issues of salary and bonus. D2 anticipated that PW1 would be asked questions on that by the defence, and had prepared answers for PW1.

62.   In relation to the prepared answer, D2 said that in PW1’s statement he had mentioned that his salary was $300,000, but the salary of the brothers and PW1 were larger than this amount. In the statement of the brothers, they mentioned that their salary was $10,000 odd to a few $10,000 odd, per month. D2 also said that in the brothers’ statement, it was not known how the bonus was paid and that the bonus was decided by PW1 himself.

63.   At that time PW1 told D2 that he did not know how to answer that. Then D2 said to PW1 that in the brothers’ statements, they said that when PW1 reported the earnings to Raymond, profits were understated and losses overstated. D2 said that an explanation needed to be prepared for that.

64.   D2 suggested for PW1 to say that Raymond was very stingy, and when PW1 asked to pay more to the brothers, Raymond just responded perfunctorily. D2 then said that PW1 therefore decided to help the brothers to earn more.

65.   D2 then said that the brothers themselves needed to give money to Raymond for those heads, that the risk was very high and everyone felt that Raymond was making a lot of money and it was not fair to them. So it was decided that the brothers had to be helped so that they could earn more money so that they could retire earlier. When asked about whether the prepared answers by D2 was in fact true, PW1 said that it was the truth.

66.   Later on, PW1 changed his evidence back and forth, in the end, it is very unclear whether what his answer to that question was. This went on for quite a while during the examination in chief of PW1.

67.   It is PW1’s evidence that he had not seen any of the ICAC officers kept notes during their meetings.

The 30^th November 2009 meeting

68.   PW1 met with D1 and D2 on 30^th November. The meeting was held inside the car driven by D2 so that they could talk about things secretly. The meeting took place in the afternoon while the car was parked at Hung Hom pier, lasting about 2 to 3 hours.

69.   Just as the meeting he had with D2 and D3 on the 3 previous occasions, PW2 made contemporaneous notes of this meeting shortly afterwards. He was allowed to refresh his memory with his notes.

70.   At the meeting, D1 raised the matter of PW1 understating profits and overstating losses when reporting to Raymond Ng. D1 said to PW1 that, if defence counsel ask him if he had ever misappropriated money from Raymond, PW1 would not know how to answer because it was not mentioned in PW1’s statement. D1 then suggested to PW1 for him to openly admit that he had misappropriated money from Raymond. With his letter of immunity, PW1 will not have to worry about Raymond complaining to the Police.

71.   PW1 was then asked by Mr. Oderberg if he had in fact stolen money from Raymond. After a warning of his privilege against self-incrimination had been given to PW1, he answered that, “If you say stole his money, I did not steal his money.”

72.   D1 also told PW1 that Raymond said that PW1 was the decision maker, that Raymond would definitely defend himself by saying that PW1 cooperated with him in making the investment, that PW1 was very smart in choosing stocks and shares, that Raymond would ask him for information and everything was decided by PW1.

73.   In relation to when PW1 being asked questions about money, asset and property, D1 said that PW1 should deal with that by saying that over the past one year or so, he had no job and yet still had to spend money on his and his family’s living expenses, give money to his parents and maintain his car.

74.   Then suddenly D1 asked PW1 if he knew how to gamble on horses. D1 told PW1 to remember to say that he gambled in cash, that the bets were places in person at the betting centre and not via phone betting. What D1 meant was that PW1 should say in evidence that he had spend his assets that way.

75.   D1 then said that once PW1 had explained his losses and there was no more assets left, the ICAC would not have anything to confiscate.

76.   It is PW1’s evidence that on the very first day of his arrest, he had had an agreement with officers Li and Lai of the ICAC that the ICAC will not prosecute PW1 and his aunt Tse Tai Tai, that PW1’s brothers in the warrant trading scheme will be rescued, that PW1’s assets will not be confiscated as long as the 4 main warrant issuer’s employees and Raymond Ng were successfully implicated. Moreover, officer Lee and Lai told PW1 that it was a secret agreement between them.

77.   When PW1 told D1 that this was the truth, D1 did not look happy and asked if PW1 could give a simple answer so as to prevent the defence further questioning him. D1 told PW1 to think about whether it is better for himself to give a simple answer. PW1 thought about it and then told D1 that he would answer that there was no such agreement, whereupon D1 showed a satisfactory look on his face.

78.   D1 then said to PW1 that he did not coach PW1 how to give evidence, that everything was his own answer after he had thought it over and asked PW1 if that was the case.

79.   At this point, D2 left the car for the washroom. When D1 and PW1 were alone in the car, D1 asked PW1 if he had told the brothers whom PW1 was cooperating with in the warrant trading. PW1 remembered that D1 had mentioned that Eric, the insider in the warrant issuer, and Raymond shared the money half and half.

80.   There was then some discussion about how to give evidence in court. D1 told PW1 that he should do it slowly, be calm and not to answer too much.

81.   D1 then told PW1 that he will be asked to identify some people in court. D1 said there will only be 4 people inside the dock. Only 2 will be females and that the fat one will be the wife of Raymond.

82.   D1 asked PW1 that if the defence ask PW1 whether he had discussed about the contents of the statements with the ICAC officers in their meetings how he would answer. PW1 said he would answer no and then D1 praised him and said he was a smart boy.

83.   D1 also said that once PW1 started to appear in court then he was not allowed to read his own statements. But D1 told PW1 that the statements are in his home, it’s okay to have sight of them accidentally. Then D1 asked if he understood what D1 meant and PW1 replied that he did. What PW1 understood was that it was alright for him to read the statements at home secretly and no one would know.

Identification of Anna

84.   PW1 was also shown some videos and was asked to identify a person known as Anna.

85.   After some more general discussions the meeting came to an end.

The 4^th December 2009 meeting

86.   According to PW1, D1 requested for him to visit the ICAC headquarters for one more rehearsal. The meeting was in the afternoon and lasted around 2 hours. After the meeting PW1 made contemporaneous notes of the meeting. He was allowed to refresh his memory with them.

87.   PW1 met with D1 and D2 in room 1122. PW1 asked D1 whether to continue using gambling on horses as an explanation for losing his assets. PW1 told D1 that D2 also did not agree with this explanation.

88.   D1 said there was no problem, that no one will know how much he had lost and PW1 could answer that he could not remember if asked about how much he lost or on which horses.

89.   D1 said that in relation to the passing of money to Anna and the brothers passing money to PW1, he should not disclose that he had seen the video at the previous meeting (3^rd December). D1 did not explain to PW1 why he should not so disclose, he just requested PW1 not to do so.

90.   D1 also said that there was no agreement between PW1, officers Lee and Lai, or D1 and D2. D1 asked PW1 if he understood or not.

91.   Also at this meeting, D2 suggested to PW1 that after giving evidence on the first day, he could go home and read his statements so that it will be easier for him the following day. D2 said whether he read it or not was his own decision to make.

92.   After the meeting concluded, D2 drove PW1 back to Tseung Kwan O. When they reached a 7-11 convenience store near Sun Bo Shing, D2 purchased 2 phone cards and handed one to PW1, retaining the other one himself. D2 bought the card for PW1 so that they could keep in contact after PW1 started to give evidence in court.

PW2 Ms. Ada Lau

93.   Ms. Lau is the Senior Vetting Officer of the Independent Police Complain Council. Prior to her resignation from the ICAC on 1^st June 2011 to take up the present employment, she was a Senior Investigator of the ICAC and was the Officer in Charge of the case which resulted in the 1^st warrant trial. As such she was familiar with the 3 defendants in our present case and had worked with them in relation to that trial.

94.   Ms. Lau confirmed in cross-examination by counsel for D2 that D1 was away from his post on a course entitled Command Course for D1’s promotion to Chief Investigator. D1 was away from end of October to 27^th November on the course, and then he took a few more days off so that Ms. Lau, who was Acting Chief Investigator in D1’s post whilst he was away could receive the acting pay for having acted over 30 days.

95.   Ms. Lau related an incident in relation to the showing of the surveillance footages of the suspects in the 1^st warrant trial case.

96.   A few days after the trial had started and the voire dire proceedings concerning D3 was near its end, the prosecuting counsel Mr. Joseph Tse, SC told Ms. Lau that he was going to call Cheung Ching Ho (our present PW1) to give evidence. Mr. Tse instructed Ms. Lau to get the surveillance video on Cheung ready and said that he was going to play the video during the examination in chief of Cheung.

97.   Ms. Lau therefore went back to her office and related that instruction to her superior, D1. Ms. Lau also raised the issue of whether they were allowed to show Cheung the video. It is Ms. Lau’s evidence that at that time both D1 and herself thought that it was logical that Cheung should be allowed to view those footages showing Cheung Ching Ho himself. Ms. Lau then arranged for those tapes to be given to D1 within a few days after 30^th November 2009, who later returned them.

98.   When Ms. Lau informed Mr. Joseph Tse that the footages had been shown to Cheung, who was not giving evidence yet, Mr. Tse was not happy. Ms. Lau realized that she had misunderstood his instructions. She was to get ready the tapes but not to play the footages for Cheung to view. Ms. Lau apologized, saying that she thought that material to be shown to the witness in his examination in chief could be shown to the witness prior to the giving of evidence to refresh his memory. Ms. Lau felt that she had not acted competently on that occasion.

99.   Ms. Lau was then cross-examined by counsel for D2 on whether she would tell D2 what questions he should ask of Cheung Ching Ho when D2 met with him. Ms. Lau’s evidence is that during the statement taking stage, she and D2 would discuss what information they were going to get from Cheung. To her knowledge, after all the witness statements had been taken, the rest of the meetings with Cheung would be considered ‘welfare meetings’. Ms. Lau explained that welfare meetings are held to see if Cheung had anything to tell them or to see if anything had been bothering him recently, basically just to have a chat with him.

100.   Counsel for D3 Mr. Wong confirmed with Ms. Lau that of the 3 defendants, D3 was of the lowest grade and that he was supposed to be the exhibit officer for the whole operation in relation to the 1^st warrant trial. D3’s main responsibilities was to take over the items seized by the different teams and to record and label them. D3 was also responsible for making arrangements with the defendants’ legal representative for them to view the unused materials. D3 would also assist Ms. Lau should she want to view any of the exhibits.

101.   In addition to the said responsibilities, D3 also had to serve summonses and make photocopies of materials to be used in the trial. It is Ms. Lau’s evidence that D3’s work load at that time was very heavy and time consuming.

102.   Ms. Lau also confirmed that it is a convention of the ICAC that officers would pair up to meet with witnesses most of the time. The officers would normally be from 2 grades, and the junior officer would only be there at the meeting to assist. Ms. Lau agrees that in around November 2009, D3 was called upon on an ad hoc basis to meet with various witnesses in relation to the 1^st warrant trial in order to assist his seniors.

103.   Ms. Lau confirmed that there is a need to know principle concerning the witnesses and D3 may not know the full reasons of why they had to meet with a particular witness. Sometimes D3 would only know why when he actually see the witness.

104.   During re-examination, Ms. Lau was asked whether the fact that lengthy meetings where ICAC officers had discussions with immunized witnesses or potentially immunized witnesses went un-recorded was usual. Ms. Lau’s evidence is that it depends on the nature of the meeting.

105.   Lastly, Ms. Lau confirmed that Lee Wai Tung, Leung Yiu Kei and Lee Wai Ming were immunized witnesses in the 1^st warrant trial.

PW3 Mr. Kwong Lai Fan

106.   Mr. Kwong is a Senior Investigator of the Operations Department of the ICAC. He is a member of the Development Team consisting of 10 people headed by an officer of the Chief Investigator rank. It is part of Mr. Kwong and his team’s function to prepare, organize and disseminate various form of training and guidance for various ICAC officers in the discharge of their duties.

107.   Mr. Kwong produced 6 documents (exhibits P-15 to 20) being Training Bulletins and Court procedures, contents of which contain guidance on interaction with witnesses over the refreshing of memory.

108.   The documents were prepared by Mr. Kwong and his team and then disseminated to the personnel of the Operations Department, including the Chief Investigators, Senior Investigators and Assistant Investigators.

109.   In cross-examination by D1, Mr. Kwong confirmed that the ICAC do not have any directives stipulating that ICAC officers must interview witnesses or see witnesses at any specific venue whether it be for refreshing memory or any other reason.

110.   Mr. Mak for D2 confirmed with Mr. Kwong that the Commission Standing Order, being one type of the documents produced, is merely a Departmental Directive and Internal Regulation and violation of which may lead to internal disciplinary action by the ICAC.

111.   The evidence of PW4 Ms. Virginia Szeto and PW5 Mr. Hui Chun Wai are dealt with below when considering the admissibility of the tape recordings of the 2 meetings.

D1’s evidence

112.   The defendants fully understood their rights to choose to give evidence or not. D1 elected to give evidence while D2 and D3 elected not to. None of the defendants called any defence witnesses.

113.   D1 is of clear record.

114.   In his examination in chief, D1 was led through the transcripts of the 3^rd December 2009 meeting. Through his answer, I find that he had accepted as true that the person identified as him in the transcripts is in fact himself.

115.   D1 gave explanation and applied his own interpretation on the contents of the tape recording. I find that what D1 interpret the tape recording to be saying is not relevant to my decision. It is the function of the tribunal of fact to listen and then make a finding as to what the contents of their discussion actually meant.

116.   It is D1’s evidence that whatever he had said in the meeting, he did so to try his best to ensure that D1 will give full and true evidence at the pending 1^st warrant trial. There was never any intention on his part to induce or persuade PW1 to give any false evidence. All that he had done at the meeting was to go over what PW1 had already known, a memory refreshing exercise.

117.   In relation to the phone cards that D2 had allegedly bought for PW1 to use to communicate with ICAC officers, D1 was not aware of that nor did he give instructions to D2 to buy the cards, but he suspects that if it was in fact done, it would have been for security purpose.

118.   D1 said he never had any conversation with PW1 about reading statements at home after he had begun giving evidence in court.

119.   D1 confirmed that the meetings he had with PW1, that is to say, the 30^th November, 3^rd and 4^th December 2009 meetings, were never put down in a from of statement by the ICAC. D1 admitted in his evidence in chief that it should have been better if after each of the meetings he or his officers had made some sort of notes and perhaps even put into formal statement signed by the witness. D1 thinks it is a common mistake made by the law enforcement agency.

120.   In relation to the parts where D1 allegedly questioned PW1 about things said by Wong Ho Yin, Leung Yiu Kei and Mak Kai Tong, D1 denied that he asked the questions with intent to enhance PW1’s credibility. D1 considered that unnecessary because PW1 was well aware of the whole operation of his syndicate. What D1 was doing in that part of the conversation was to confirm whether PW1 was willing to give full and true evidence.

121.   In relation to particular (iii) of charge 2, D1 said that he did not “deliberately ignore these internal guidelines”. One of the elements of the offence is that the misconduct must have been willful. D1’s case in relation to this particular is that he had inadvertently failed to follow the internal guidelines as to how witnesses should be dealt with.

122.   D1 said he never suggested to PW1 that he could read his witness statements without the court’s leave during the course of his evidence, nor had he even hinted at that, as suggested by PW1 in his evidence in court.

123.   In relation to the 4^th December meeting with PW1, it is D1’s evidence that they talked mainly about the arrangement for his attending court on 7^th December, as well as PW1’s psychological condition, whether he was sleeping well, things like that. PW1 did take the initiative and asked whether they should discuss about the evidence he was going to give. D1 said they should not and just told PW1 to go back and take a good rest.

124.   More specifically, it is D1’s evidence that at the 4^th December 2009 meeting, there was no discussion about gambling on horses as a means of PW1 losing his assets and that no matter how much was lost no one would know about it, nor suggestion to PW1 that he could answer “cannot remember” when asked how much money he had lost; nor did D1 say to him that if asked about the name of the horses he could say he did not remember, nor did D1 tell him that the defence will attack him and that he should not be nervous. D1 made a flat denial of all the allegations that PW1 had made against him in PW1’s evidence.

125.   Their discussion was mainly about PW1’s welfare matter and the meeting lasted less than 40 minutes.

126.   During cross-examination by D3, D1 confirmed that whilst he was attending a command course from 2^nd November to 27^th November 2009, Ada Lau (PW2) was acting in his post. It was not D1 who instructed D3 to attend the meetings with PW1 on 3^rd, 13^th and 23^rd of November, because it was not D1’s duty to do so at that time since he was on leave.

Findings

127.   It is for the prosecution to prove beyond reasonable doubt against each individual defendant of each charge all the elements of the offence. All the defendants are of clear record and I have taken that into consideration when deciding on D1’s credibility as a witness and the lower propensity of all 3 of the defendants committing the offences they face.

Admissibility of the Tape Recordings

128.   According to PW1’s evidence in court, on the 2 occasions that he had tape recorded his meeting with the ICAC officers, after the meeting was over, he went straight to his solicitor, Ms. Virginia Szeto (PW4) and handed over the digital recording pens to her.

129.   According to the evidence of Ms. Szeto, who is the principal in the firm of Szeto and Co., Solicitors, she was formally retained by PW1 as his solicitors around August 2009. On 23^rd November 2009 and 3^rd December 2009, Ms. Szeto received at her office from PW1 the 2 digital recording pens. She had then kept them in safe custody and can say that no one had tampered with them in any way.

130.   5 days after the second device was handed over to her by PW1, PW1 was arrested by the ICAC on 8^th December in front of Ms. Szeto.

131.   The 2 devices were subsequently handed over to ICAC officers on 4^th June 2010 and they were put into a tamper proof property bag and sealed. Ms. Szeto confirmed that between the time she came into possession of the devices and the time they were put in the tamper proof property bag and sealed, she had not added to or taken anything away from the recorded contents.

132.   An expert in the form of Mr. Hui Chun Wai (PW5) was then called to give evidence on the integrity of the recordings found on the 2 devices. Mr. Hui’s expertise was not challenged.

133.   Mr. Hui received the tamper proof property bag on 8^th June 2010 and conducted forensic tests on each of the 2 devices. The gist of the evidence from Mr. Hui is that the recordings had not been tampered with. It is also Mr. Hui’s finding that on one of the 2 devices, he found trace remnants of recordings that had been on the device before but had been deleted. He could not say with any certainty as to the length of those deleted segments, just that it could not have been longer than the later recording that was recorded over it, or it could have been about 30-40 seconds in duration.

134.   Nevertheless, Mr. Hui is certain that in relation to the recordings of the 30^th November and 3^rd December meeting, there was no evidence of them having been tampered with, and that the audio version recorded on 2 compact optical discs shown to the witness in court were true, accurate and complete duplicate of the 2 recordings he found and downloaded from the 2 devices.

135.   Based on the evidence of PW1, PW4 and PW5, I find that the prosecution had proved the prima facie authenticity of the recordings, including their provenance and the history of the recordings up to the moment of production in court and rule that they are admissible. It was in fact never the contention of any of the defendants that they are not. The contents of the recordings are obviously relevant to the charges.

Voice identification

136.   It is PW1’s evidence that the voices in the relevant meetings belonged to the defendants. The defendants did not challenge PW1 on this part of his evidence when cross examining PW1. None of the defendants raised this point in their closing submissions. I find that in relation to PW1’s voice identification evidence as to who was talking to whom in the 2 voice recordings, PW1 is telling the truth and his evidence is accurate.

PW1’s credibility as a witness

137.   Having had the opportunity to hear from PW1 in the witness box, I find that he is not entirely a witness of truth. I am aware that I have to take caution when relying on his evidence.

138.   There is no doubt that from the very beginning, PW1 had but one thing on his mind, which is to get out of the whole matter of the fraudulent warrant trading free. He first of all managed to get himself immunity, then through the taping of the ICAC officers, he tried to get the proceedings in his own trial stayed. By the time he gave evidence in the present trial, he had already been sentenced to jail. What he had set out to achieve was no long achievable. That was probably why he behaved as he did in the present trial when he repeatedly said he did not want to give further evidence against the defendants.

139.   It is also obvious and I so find, that whenever PW1 was asked about how much money he had took on his own without telling Raymond Ng, the mastermind of the fraudulent warrant trading scheme, PW1 became extremely evasive. Evasive to the extent that he claimed he did not recognize himself in his own cautioned video recorded interviews, despite have earlier on confirmed that he had taken part in the interviews.

140.   PW1, for over a period of 3 years, operated the fraudulent warrant trading scheme from mainland China. He was responsible for the recruitment of the brothers and was the sole contact of Raymond Ng for the warrant trading group. It was by no means a small operation and would have taken considerable organization skills on PW1’s part to keep the scheme running and at a profit, all the while without being detected. PW1 was the one who decided the salary of the other members of the group. PW1 estimated that Raymond Ng could earn 10 million dollars a month and that over the years earning more than 100 million dollars from the scheme. These are all material taken from the summary of facts in the 2^nd warrant trial, facts upon which PW1 based his eventual guilty plea.

141.   Although PW1 in the witness box agreed that he did admit to the summary of facts, it is PW1’s evidence that no one had read those summary of facts to him, nor had he himself read it. PW1 said he did not even bother to listen when the facts were read out in court when plea was taken. Later on in his evidence, PW1 said his lawyers had just briefly and very simply told PW1 what was inside the summary.

142.   I find that PW1 is lying when he first said no one read it to him and later that his lawyer only explained to him briefly. It is obvious that he is just changing his evidence to fit his needs.

143.   In the 2 voice recordings of the meetings with the defendants, PW1 came across as someone who was quite helpless, forgetful, unsure of himself. This is no doubt what he wanted those who will be listening to the recordings to feel as well. I find that cannot be the true Cheung Ching Ho. As mentioned above, he was the leader of a gang of fraudsters, operating a scheme with profits of millions of dollars, involving 3 different jurisdictions (mainland China, HKSAR and Macau where the money was passed on to Raymond Ng).

144.   When asked about the accounts being used by the warrant pushing group in his cautioned video recorded interview, PW1 was able to recount without the need of any supporting documents over 10 accounts each with 3 digits. PW1 had to report to Raymond Ng daily about the warrant trading with daily turnover of up to about $100 million. PW1 was clearly someone who knew exactly what he was doing and did it really well. He is not the helpless person who was not able to remember anything. Either in the recorded meetings or in court. I find that he is just putting on a front to deceive in order to get what he wants, which is to get out of trouble.

145.   Without focusing on any one particular question or answer of PW1, after a careful listening of the tape recordings, I find that it is obvious that PW1 was deliberately leading the defendants on during the meetings. PW1 was clearly manipulating into a position for the defendants to have to keep reminding PW1 what he himself ought to have known. PW1 repeatedly in the recorded meetings said to the defendants that they ‘had already taught’ him (“你教左我啦”) about the matters that they were discussing. I find that PW1 did that with the sole purpose of getting the defendants to coach him.

146.   Unfortunately, the defendants were manipulated and had succumbed to the temptation of doing more than they should have in order to get PW1 to tell the story as they wanted.

The unrecorded meetings

147.   The defendants did not dispute that the unrecorded meetings had in fact taken place. I find that despite my worries about the credibility of PW1, he was in fact telling the truth, unless I indicate otherwise in this reasons for verdict, when relating what the defendants had said to him in those unrecorded meetings.

148.   The manner that PW1 described how D1 and D2 had acted in those unrecorded meetings are in keeping with what can be heard in the 2 tape recorded meetings. Furthermore, the contents of the recorded meetings from time to time refer back to previous meetings and D1 and D2 had from time to time impliedly confirmed what PW1 said was true.

149.   I will now deal with the individual particulars of charges against the defendants.

Charge 1

Particular (i): “…to give evidence which they knew or believed to be false.”

150.   The prosecution rely mainly on the contents of the tape recorded meetings as well as part of the evidence of PW1 given in court to prove this particular.

A. Loss of assets through horse racing

151.   The first of the complained acts of the defendants is their alleged persuasion of PW1 to say that he had lost his assets through horse racing. The prosecution say that D1 and D2 knew or believed that to be false when they told PW1 to give that as his answer.

152.   The prosecution say that although D3 did not explicitly tell PW1 to do the same, D3 was nevertheless in it together and therefore part of the joint enterprise doing the acts with the tendency to pervert the course of justice.

(1) 3^rd December 2009 meeting: first part between PW1 and D2 only

153.   At the 3^rd December 2009 meeting, PW1 first brought up the matter of how to explain the loss of his assets. PW1 brought that up by seeking to ask D2 for his opinion. The wording of PW1’s sentence suggests that on a previous occasion, D1 (being the boss of D2), had ‘taught’ PW1 to say that PW1 had lost his assets through horse racing.

Did D2 knew or believed this to be false?

154.   From D2’s response to PW1’s raising of the matter, it is clear that D2 disagreed with his boss’ suggestion, and that at that previous meeting, D2 had suggested the alternative scenario of PW1 losing the money in Macau instead. During this particular sentence, PW1 cut off D2 and asked about whether there were movement records for PW1 for Macau.

155.   Also from D2’s response, it is obvious that what PW1 said was the truth both at the meeting and in his evidence in court, that D1 had mentioned about using horse racing as an explanation for PW1’s loss of his assets and that D2 was present when that was suggested to PW1. D2 clearly did not ‘buy’ the horse racing explanation. The question however is, does this exchange and what follows show beyond reasonable doubt that D2 had together with D1 and D3 induced and persuaded PW1 to give evidence which they knew or believed to be false.

156.   In other words, did D2 know that to say PW1 had lost his assets through horse racing was false.

157.   I find that given the response of D2, in particular D2’s saying that he did not ‘buy’ the suggestion of his boss, and the suggested alternative explanation of losing the money in Macau, clearly points to the irresistible conclusion that D2 had at least believed that for PW1 to say he had lost his assets in horse racing was false.

(2) 3^rd December 2009 meeting: second part where D1 also present

158.   At counter 1656, PW1 skillfully got D1 to admit that D1 had mentioned about horse racing on a previous occasion. D2 then finished PW1’s sentence for him, saying that the use of horse racing as an explanation would not work (counter 1657).

159.   This short but telling exchange has the following effect. Confirming what PW1 had said earlier to D2 in the absence of D1 was true. Since D1 did not deny what PW1 was implying, that is, on a previous occasion D1 had talked with PW1 about using horse racing as an excuse, confirming what PW1 was saying about D1 telling him to use horse racing as an excuse was true. Furthermore, D2’s finishing of PW1’s sentence confirmed D2’s taking part in the discussion on that previous occasion.

160.   In the exchange, it is clear that D1 still considered that the explanation of horse racing would work, insisting that PW1 could answer that he had forgotten which races he had bet on if asked.

161.   When PW1 appeared doubtful of the explanation, D1 went on to lead PW1 through a series of answers to try to get PW1 to understand and accept that to say money was lost through gambling in Macau casinos was a viable answer to give when being questioned.

162.   D2 then chipped in by saying that PW1 would no longer need to explain about his assets for the time period subsequent to PW1’s arrest. D2 did a break down of how PW1 had around $10 million prior to his arrest and how PW1 might have spent that money.

163.   According to D1 at counter 1727, PW1 had not shown D1 how much assets PW1 had. Yet, despite this lack of knowledge, D1 and D2 together seemed to have worked out how PW1 could answer any questions as to where and how his assets were being squandered. While it is PW1’s own previous statement that PW1 had through giving money to PW1’s parent, buying a house, spending about one million dollar on decoration of the house and owning 2 cars used up most of his money, there was still a balance to be accounted for. That is where D1 and D2 had suggested to PW1 that PW1 could give the explanation of having lost money in horse racing or gambling in casinos in Macau.

164.   I find that when D1 and D2 had the discussion with PW1 about how PW1 could answer questions concerning his assets, neither D1 nor D2 believed that PW1 had lost all his assets through gambling on horses and in casinos. I find that D1 and D2 did together try to get PW1 to give this false answer when being questioned at trial.

165.   This part of the recorded conversation of the meeting on 3^rd December 2009 is also relevant in another way. It can be used to corroborate the evidence of PW1 given in chief about the 30^th November 2009 meeting he had with D1 and D2.

166.   It is PW1’s evidence that D1 and D2 met with him inside a car on that day. It was at that meeting that D1 had suggested to PW1 to say in court that PW1 had lost money through horse racing, asking PW1 to remember to say that he had gambled in cash and that the bets were placed at the betting centre and not via phone betting. D1 did not tell PW1 to say how much he had lost and asked PW1 to make his own decision as to how much to say. D1 did however say that if PW1 had lost a certain amount so that there was not anymore of his assets left, then the ICAC would not confiscate PW1’s assets.

167.   In addition to the 30^th November meeting, PW1 also gave evidence that at another meeting between himself, D1 and D2 held on 4^th December 2009 at the ICAC headquarters, when PW1 again asked D1 whether PW1 should continue to use gambling on horses as an explanation of losing his assets. It is PW1’s evidence that D1 said that there was no problem with that because no one will know how much PW1 had lost since all PW1 had to say was that he had forgotten. D1 also said that if PW1 should be asked about which horses he had bet on, PW1 could just answer that he could not remember.

168.   I find that PW1 was telling the truth in relation to how D1, in the presence of D2, had persuaded PW1 to give evidence which D1 and D2 knew was false, namely, that PW1 had lost most of his assets through horse racing and gambling in casinos in Macau.

B. Denial of the existence of an agreement between PW1 and ICAC

169.   It is the prosecution’s case that D2 had told PW1 to deny that there was an agreement between PW1 and the ICAC.

170.   At the 3^rd December 2009 meeting, right after PW1 had brought up the matter of D1 teaching him to say he lost his assets through horse racing, PW1 then raised the matter of D1 at the previous meeting talking about the matters relating to ‘Li Sir and Lai Sir’.

171.   PW1 in the recording said that D1 had told him to answer in the negative when being asked about something. It was not very clear from the recording at first as to what PW1 should be denying.

172.   D2 however clarified it for the listener at counters 88 to 90 when he offered to pacify PW1, telling PW1 that no one will come out to say that there was an agreement. PW1 sought confirmation from D2 that as long as he answered that there was no such thing then everything would be fine and D2 gave that assurance.

173.   It is obvious in this part of the exchange with D2 that D2 knew that an agreement existed, that however PW1 should deny the existence of such an agreement when asked in court. D2 therefore knew that the answer that D1, and now D2, was persuading PW1 to give was false.

174.   It is also an irresistible inference that what PW1 was talking about when discussing those answers with D2 was in relation to when PW1 would be giving evidence in court later on.

175.   PW1 did give more details of this agreement in his evidence in chief when he talked about the 30^th November 2009 meeting with D1 and D2.

176.   It is PW1’s evidence that D1 told him the defence will ask PW1 whether the ICAC gave PW1 any benefits and whether there was an agreement for his immunity. PW1 said that in fact, on the very first day, officers Li and Lai of the ICAC had told PW1 that PW1 would not be prosecuted as long as he continued to cooperate with them, and that it was to be a secret agreement between them.

177.   It is PW1’s evidence that D1 gave a look of dissatisfaction when PW1 said he had to answer truthfully when asked about the agreement. D1 then said for PW1 to think about giving a yes or no answer, for PW1 to think for himself which one is the better answer. PW1 then resignedly thought about it and replied D1 that there was no agreement, whereupon D1 immediately showed a satisfactory look on his face. D1 then said to PW1 that he did not coach PW1 how to give evidence, that everything was PW1’s own answer after PW1 had thought over it.

178.   I find that PW1 is telling the truth in relation to this particular part of his evidence, on the basis that it is supported by the later conversation between PW1 and D2 in the 3^rd December meeting which was tape recorded.

179.   On that basis, I find that D1 did persuade PW1 to give evidence which D1 knew was false, namely, to say that there was no agreement between PW1 and officers of the ICAC when he was told by PW1 that there was in fact such an agreement.

C. Continued out of court contact with PW1

180.   It is the prosecution’s case that at the 3^rd December 2009 meeting, D2 had suggested to PW1 that they could keep in contact even after PW1 had started to give evidence in the 1^st warrant trial.

181.   At counter 359, D2 told PW1 that D2 will prepare something solely for the purpose of talking with D2, and said to PW1 that all PW1 had to do was to throw it away afterwards. D2 clearly knew what he did was wrong since he said that it would not be good if others could see the call records. D2 proceeded to tell PW1 that once PW1 had started to give evidence in court, PW1 will very much want to see D2 and the others. D2 then told PW1 not to worry as once PW1 started to give evidence, they will have arrangements.

182.   According to PW1’s evidence in chief, D2 purchased 2 phone cards for their use after their last meeting on 4^th December 2009. The cards were purchased by D2 at the 7-11 convenience store near Sun Bo Shing in Tseung Kwan O. D2 gave one of the phone cards to PW1 while he himself kept the other.

183.   I find that PW1 was telling the truth in relation to the purchase of the phone cards by D2.

184.   Mr. Oderberg incorporated this part of the allegation against the defendants under particular (i) of the 1^st charge on the indictment. It is not clear how the act of D2 of purchasing a phone card to keep in contact with PW1 after his giving of evidence had commenced had ‘induced and persuaded PW1 to give evidence which the defendants knew or believed to be false’.

185.   The particulars of the offence is drafted in such a way as to leave no room for ambiguity. The act or series of acts which had a tendency to pervert the course of public justice complained of are those as set out in particulars (i) and (ii).

186.   According to Rule 3(1) of the Indictment Rules, Cap.221C, every indictment shall contain, and shall be sufficient if it contains a statement of the specific offence with which the accused is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

187.   In the case of HKSAR v Lau Wing-kun and another, CACC 524 of 1999, the Court of Appeal considered Rule 4 of the Indictment Rules and found that the requirement to specify the essential elements of the offence is qualified where the failure to specify it does not prejudice or embarrass the accused person.

188.   According to the learned editors of Archbold Hong Kong 2012, at paragraph 36-43, “the information sought on a request for further and better particulars can usually be found in the evidence, in the prosecution’s opening, or in both.”

189.   In our present case, none of the defendants had made an application for further and better particulars despite the prosecution’s opening clearly stating at paragraph 28 “D2 promised to give PW1 mobile telephone cards so that they could discuss his evidence during the currency of the trials” as one of the illegal acts complained of.

190.   The evidence in the form of voice recording of the 3^rd December 2009 meeting is available to the defendants right from the beginning. It was not submitted by any of the defendants that they had been caught off guard by the prosecution mentioning of this illegal act in their closing submission. While it is true to say that the particulars of the 1^st charge could have been better drafted, I find that the defendants had in no way been prejudiced or embarrassed by the failure to set out this particular and it is open for me to make a finding as to whether this act on D2’s part would form part of the guilty act in relation to charge 1.

Tending to pervert the course of public justice?

191.   According to Archbold Hong Kong 2012 at paragraph 30-15, ‘An act done with the intention of perverting the course of justice is not enough; the act must also have that tendency. To establish a tendency, the question should simply be whether, as a matter of fact, the act of the defendant had, at the time of the act, a tendency to pervert the course of justice. If the answer to that question of fact is positive then that element of the offence is made out without it being necessary to prove that no further act was required to be done by the defendant.’

192.   The learned editors then cited the Court of Final Appeal in the case of HKSAR v Kevin Egan, FACC 3/2009:

“124. Conduct has a tendency to pervert the course of justice if it has a tendency to cause a miscarriage of justice or, put another way, a tendency towards ‘impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice.’ [citing R v Rogerson (1992) 174 CLR 268, 280]”

193.   Although it can be interpreted from counter 363 of the 3^rd December 2009 meeting that D2 knew what he was going to do was improper since he did not want others to see their call record, but had D2 done something which had a tendency to pervert the course of public justice in purchasing the cards? I find that there is difficulty to so find. The buying of the cards themselves could not have been the acts tending to pervert because there is no evidence as to what D2 or any of the defendants would say to PW1 over the phone, or if there is going to be such calls at all.

194.   I find that all that can be said is that there is an indication as at the time of the purchase of the phone cards that D2 had intended to communicate with PW1 while PW1 was giving evidence and that D2 had intended the fact that they had communicated not be known to others. This act alone could not have amounted to an act that tended to pervert the course of justice without further evidence as to what the content of the communication was going to be.

195.   I find that this part of the prosecution case must fail.

D. D2 Suggesting ways for PW1 to explain how his profits were spent

196.   It is the prosecution’s case that at the 3^rd December 2009 meeting, while D2 and PW1 were inside a room at the ICAC headquarters awaiting D1’s arrival, D2 had suggested to PW1 that he could explain about PW1’s usage of the money from the fraudulent warrant trading by saying that the money that was given by PW1 to his mother and elder brother were actually PW1’s wages, and that PW1 had taken some of the cash that the ‘heads’ had given to PW1 as PW1’s own wages.

197.   D2 also seemed to have suggested to PW1 as to how to explain PW1’s expenses. Saying that of the 10 million dollars, PW1 used 5 to 6 million to purchase a property, some money was given to his family, some for sundry expenses and sometimes going over to Macau to gamble, with most of the time losing. This was supposed to have gone on since June 2006, resulting in not much money left. D2 considered that this way PW1 would be able to explain everything without having to mention anything about gambling on horses, which D2 considered would not work. D2 further reminded PW1 that PW1 had traded in securities throughout that period and that PW1 had lost a lot of money when the market crashed.

198.   Having suggested for PW1 to use trading in securities as an explanation, D2 then urged PW1 to go check his own securities account information to try to calculate the figures. D2 then proceeded to ask PW1 how much losses PW1 had suffered and which particular companies’ share had PW1 traded in, whereupon D2 realized that there is shortcoming in this method of explaining PW1’s expenses because there would be records of trading. D2 then told PW1 to bring the relevant trading records the following day for D2 to look at. When PW1 told D2 that it would be impossible to come up with a figure in just a few days, D2 said that this explanation should not be used [counter 646].

199.   When both PW1 and D2 realized that securities trading could not be used as an excuse, D2 then suggested that PW1 should just say that the money had been spent [counter 658]. This part of their discussion was eventually cut short when D1 entered the room.

200.   I find that it is without doubt that D2 was persuading PW1 to give evidence that would be false, namely, that most of PW1’s money from the fraudulent warrant trading had been lost. Together they were trying to come up with a false but convincing explanation as to where all the money PW1 had made had gone. Eventually, D1 and D2 had both suggested to PW1 to say that one of the ways that the money had been lost was through gambling in Macau.

201.   I find that when they both made that suggestion, they knew that was not the truth. They made that suggestion so as to allow PW1 to give a credible answer to questions from the defence as to his assets, which in turn would avoid the defence alleging that there had been an agreement between PW1 and ICAC that his assets will not be confiscated as long as PW1 cooperated with the ICAC, which could be ground for attacking PW1’s credibility since he may be induced to lie in order to hold on to his money.

202.   I find that this act of suggesting PW1 to give false evidence is an act which had a tendency to pervert the course of public justice. I find that it is obvious that the intention of D2 was to pervert the course of justice through asking PW1 to give false evidence.

203.   Given the fact that D1 was not present in the room at the time, I find that the prosecution failed to prove beyond reasonable doubt that D1 was in it together with D2 in relation to this particular act.

E. PW1 contacting the fraudulent warrant trading brothers

204.   It is the prosecution’s case that at the 3^rd November 2009 meeting, D2 had taught PW1 to say in court that he had not contacted any of his warrant pushing brothers at all, and that D2 told PW1 that D2 did not want others to know that PW1 had contacted the brothers to try to get them to cooperate with the ICAC. According to PW1, D3 was also present when this was said.

205.   I find that PW1 was telling the truth about this matter. D2 in telling PW1 to say in court that PW1 had not contacted other brothers would be to ask him to give false evidence, which D2 knew was not true. I find that what D2 did had a tendency to pervert the course of justice and that it is clear that his intention was to so pervert.

206.   I am however unable to find whether D3 was in it together with D2 in relation to this request. The evidence from Ms. Ada Lau is that D3 would from time to time told to sit in at the meetings on an ad hoc basis. There is no evidence from PW1 about D3’s participation on this. The only evidence the prosecution has is that D3 was present at the meeting when this was said by D2. I find that this is not enough to find a joint enterprise in relation to this act.

207.   I also find that in relation to D1, given that he was not present at the meeting and there is no evidence to suggest that he was aware that this was going to be said by D2, the prosecution also failed to prove that he was in it together with D2 on this act.

F. PW1 misappropriating profits from the warrant trading

208.   It is the prosecution’s case that D1 had at the 30^th November meeting with PW1 told PW1 to admit that PW1 had misappropriated Raymond’s money when asked by defence counsel at the 1^st warrant trial. D1 told PW1 that he had the protection from the Letter of Immunity, that PW1 did not have to worry about Raymond complaining to the Police about the misappropriation.

209.   PW1 was then asked by counsel for the prosecution if he had in fact misappropriated money from Raymond. A warning against self-incrimination was given to PW1 in the witness box before being asked to answer. The answer PW1 gave was this: “If you say stole his money, I did not steal his money.”

210.   There is no other evidence in the present trial to corroborate this part of PW1’s evidence. There is, on the contrary, evidence to suggest that what D1 allegedly told PW1 to say was in fact the truth. This is in the form of one of PW1’s video recorded interviews, as set out at paragraph 54(i) of the summary of facts in the case of the 2^nd warrant trial of PW1. It is stated in the summary of facts that “…sometimes, without telling Raymond, he would take more money up to $200,000 to $300,000 for him and his team members to share.”

211.   This video recorded interview was conducted with PW1 on 28^th May 2008, which was 18 months prior to the 30^th November 2009 meeting when PW1 said D1 had taught him to say, and which PW1 in his evidence in chief in the present trial said “since it was not mentioned in my statement I did not know how to answer” if he was asked about whether PW1 had misappropriated money from Raymond Ng.

212.   There is no doubt that PW1 was lying in court about this part of his evidence. As such I find that the prosecution must fail against the defendants in relation to this particular ground of complaint.

213.   I now move on to the 2^nd particular of charge 1.

Particular (ii): Supplied PW1 with information including information from the statements of other witnesses with intent to enhance PW1’s credibility

A. Wages of brothers

214.   According to the tape recorded conversation between PW1 and D2 at the meeting on 23^rd November 2009 which D3 was present, D2 told PW1 that he was not testing him anymore, but had asked PW1 to write down something that D2 was going to read out to PW1.

215.   D2 then proceeded to recite how much the participants in the mainland warrant trading group were being paid in wages. Leung Yiu Kei, Wong Ho Yin, Lee Wai Ming, Lee Wai Tung, Chan Wing Tung, Cheung Ching Wan, Tse Tai Tai, Wong Kit Ling and Mak Kai Tong were the names mentioned by D2 between counters 30 and 116.

216.   In relation to the earnings of Leung Yiu Kei and Wong Ho Yin, D2 also mentioned them at the 3^rd December 2009 recorded meeting at counters 515 to 531 and 772 to 792 respectively.

217.   PW1 was furthermore told not to remember the exact amount. The information were supplied for PW1 to have a general impression of the figures.

218.   It is not suggested by the prosecution that the information so supplied to PW1 were false. The act that the prosecution say would tend to pervert is the mere act of supplying of the information to enhance PW1’s credibility.

219.   In his very helpful table entitled “Reply to Prosecution’s Submission”, Mr. Mak for D2 did not set out a specific reply to paragraph 38(i) to (iii) of the prosecution’s closing submission.

220.   I find that D2 did in fact supply those information to PW1 and that the only inference that can be drawn is that he had intended the information so supplied to allow PW1’s eventual credibility to be enhanced. I find that this act of D2 could and did tend to pervert the course of public justice. The knowledge of what other witnesses said in their witness statements can greatly enhance PW1’s credibility in the court’s eyes, thus impairing the capacity of a court to do justice. I find that the intention of the supplying of the information by D2 to PW1 was so that his credibility would be enhanced, which in itself would lead to the perverting of the course of justice.

221.   I find however that I am unable to say that D3 through his mere presence was in it together with D2 on this act. There is no evidence that D3 had done or said anything at this part of the meeting to show he was part of this act.

B. Information in relation to PW1 passing cash to Raymond Ng at Sands casino in Macau

D2 at the 3^rd December 2009 meeting

222.   At counters 429 to 434, D2 first of all confirmed with PW1 that the giving of money to Raymond Ng in Sands, Macau was not mentioned in PW1’s own statements. Having gotten that confirmation from PW1, D2 then told PW1 that someone else had said that PW1 handed over the money at Sands. PW1 then asked who it was who said that and D2 answered with a question, asking PW1 who he had told. PW1 said he had told the brothers. PW1 then can be heard in the recording to ask whether D2 wanted PW1 to say that in court although it was not stated in his own statement. D2 replied that PW1 should memorize it first, as to whether to give that evidence in court, D2 said he felt that PW1 should not go into too much details and should only mention it when asked by the defence. I find that this part of D2’s exchange with PW1 was done with the intention on D2’s part to enhance PW1’s credibility.

(1) D1 at the 3^rd December 2009 meeting

223.   At counter 1587, D1 brought up that Wong Ho Yin (a witness in the 1^st warrant trial) seemed to have mentioned how PW1 handed over the money [from the fraudulent warrant trading] to Raymond Ng in the VIP room of Sands, and asked PW1 if that was the case.

224.   Although the sentenced was phrased as a question, I find that D1 in so asking had supplied what Wong Ho Yin had said in his statement to PW1. I find that D1 did that with the intention to enhance the credibility of PW1 in court.

225.   Apart from the information in relation to the handing over of money to Raymond Ng, it is the prosecution’s case that at the same meeting, D1 at counter 1773 told PW1 that Mak Kai Tong (another witness in the 1^st warrant trial) had mentioned that PW1 had requested Mak to write out a check payable to one Cheung King Wah. D1 asked PW1 who that was and PW1 answered that he was PW1’s father. D1 approved of PW1’s answer and then asked PW1 why he asked Mak to do that, to which PW1 answered, “the money was mine”. D1 disapproved of this answer and gave a different answer, saying that it was so that the money could be conveniently withdrawn by PW1.

226.   D1 also warned PW1 that if PW1 did not give a good answer, there may be a chance that the defence would call PW1’s father as a witness, PW1 therefore should think about it in advance so as to minimize the effect [on PW1’s father].

227.   Also at the same meeting, D1 told PW1 that Leung Yiu Kei said that sometimes in the past, PW1 would embezzle the money [from the fraudulent warrant trading] by deliberately understating their profits and overstating their losses. The money so embezzled would then be distributed to the warrant trading brothers. D1 asked PW1 if that was the case. PW1 did not answer directly, except that he had not mentioned it in his statements. D1 then told PW1 that although PW1 had not mentioned it, PW1’s warrant trading brothers had mentioned it and asked PW1 again if that really was what happened. After repeated asking, PW1 finally confirmed that it was the truth.

228.   Once PW1 had admitted that to D1, D1 then proceeded to supply the reason why PW1 did that to PW1, saying that because the risk was big and that PW1 felt he had to compensate the brothers. Again D1 asked PW1 if that was the truth. PW1 nodded his head and confirmed it was the truth.

229.   I find that the reason why D1 mentioned what Leung Yiu Kei said to PW1 was so that PW1 would be prepared for cross-examination, so that PW1’s credibility would be enhanced, having been given ample time to think up the answer.

230.   I find that given the seniority of D1 over D2, and given what D1 had previously said to PW1 at the 30^th November meeting, the only irresistible inference is that D1 and D2 were acting out a joint enterprise when D1 supplied those information to PW1.

231.   I find that such an act had the tendency to pervert the course of justice. I find that it was the intention of both D1 and D2 to so pervert.

(2) D2 at the 23^rd November 2009 meeting

232.   It is the prosecution’s case that D2 at the 23^rd November 2009 meeting had given a number of figures to PW1 so that he would have a general idea of how much money had been given to the warrant trading brothers. According to what was said at, say, counter 48 to 50, a lot of work had been done by D2 to prepare the information. Between counter 50 and 116, D2 supplied further information to PW1 including information as to how much money was given to PW1.

233.   I find that this provision of information to PW1 by D2 was so as to enhance PW1’s credibility when giving evidence in court.

234.   I find however that I am not satisfied that D3 was also in it together with D2 in the supply of those information. There is no evidence that D3 had assisted in the preparation of those information and according to the audio recording, D3 did not contribute to this part of the conversation.

(3) D2 at the 3^rd December 2009 meeting

235.   During the 3^rd December 2009 meeting, while they were still in the car and prior to D1 joining the meeting, D2 mentioned to PW1 that there were 2 different answers he could choose from when being asked questions about why there were moneys deposited into the bank accounts of PW1’s parents and elder brother. D2 confirmed with PW1 that the truth was that PW1 used their accounts to receive the money first and then PW1 would transfer the money out to himself. The money was actually PW1’s wages from the fraudulent warrant trading. D2 approved of PW1’s proposed answer.

236.   D2 then talked about the alternative answer of the money being repayment of loans from PW1’s parents and elder brother, which apparently was the answer that D1 had preferred PW1 to give. D2 felt that they should not complicate matter, that PW1’s answer was better and D2 told PW1 that they will have a further discussion with D1 later about the matter.

237.   The inference from that exchange must be that D1, D2 and PW1 had on a previous occasion discussed the matter and D1 had suggested for PW1 to say that the money he deposited into his parents and elder brother’s account was to repay them. If what PW1 said at the later 3^rd December 2009 meeting was true, then what D1 suggested for PW1 to answer was false.

238.   We however do not have evidence as to what PW1 had told D1 and D2 on that previous occasion, as such, it is not possible to find whether D1 and D2 themselves had known or believed the scenarios to be false. That is probably why Mr. Oderberg did not include this act of the defendants under the heading of particular (i) above.

239.   At paragraph 39 of the prosecution’s closing submission, it is stated that “PW1 was given 2 options to answer where the money in the accounts of brothers and parents went to withdraw money from their accounts to PW1 for his own use; in the end D2 said the one stated by PW1 was good.”

240.   It is not entirely clear how D2 had “supplied information” with intent to enhance PW1’s credibility based on what was said at counters 198 to 251. As PW1 said in the recording, the truth was that the money was his wages and he deposited them into his parents and elder brother’s account so that he could transfer them out later on. The alternative answer was apparently suggested by D1 on a previous occasion and it was not information, but a fabrication. The problem is we have no further evidence on that fabrication since it was not caught on tape and PW1 did not mention it in his evidence in court.

241.   I therefore find that the prosecution must fail against the defendants on this particular complaint.

(4) Surveillance tapes shown to PW1

242.   During the 3^rd December 2009 meeting, surveillance videos were shown to PW1. The footages, according to what was said in the meeting, were of Leung Yiu Kei, Anna, Chan Chung Yan and PW1 himself.

243.   I find that the showing of the footages to PW1 by itself may not have the tendency to pervert. However, according to the evidence of D1 given in court, none of the contents of the 3^rd December 2009 meeting was officially recorded. But for the tape recording done by PW1, if D1, D2 and PW1 did not tell, no one would have known about the showing of the footages. According to what was said at the meeting, the footages show the above named people doing something relevant to the case. It is obvious that if this showing is properly recorded and made known to the defence, PW1 would be cross-examined on the reliability of his identification.

244.   I find that D1 and D2 showed the footages to PW1 so as to ensure that he will be able to make the identification in court. This is done to enhance PW1’s credibility.

245.   The prosecution also allege that at the 30^th November meeting D1 had suggest to PW1 as to how to identify Raymond Ng’s wife in court and that at the 4^th December meeting, D1 told PW1 to say that he had not watched any video with the ICAC regarding identification of Anna.

246.   I find that PW1 is telling the truth on this. The act of showing the surveillance tapes to PW1 amounted to supplying him with information. The failure to make a record of the showing would have the tendency to pervert the course of justice. I find that the deliberate failure to make a record of the showing shows that the intention of D1 was to so pervert.

247.   I find that given the presence of D1 and D2 at this meeting when this was done, and given the extent of D2’s involvement in the other meetings in relation to the coaching of PW1, they must have been in it together on this showing of the surveillance footage to PW1 as well.

(5) Questions and Answers with D1

248.   It is the prosecution’s case that the question and answer session between PW1 and D1 from counter 1004 onwards at the 3^rd December 2009 meeting amounted to supplying of information to PW1 to enhance PW1’s credibility.

249.   I do not agree with this. At counter 1006, it is clear that what D1 wanted to do was to make sure that PW1 remembered the contents of his own statements without having to look at them. I find that this part of the memorizing exercise of the meeting did not amount to supplying information to PW1.

250.   In addition to making sure that PW1 remembered his evidence, D1 also taught PW1 how to deal with questions from defence counsel. I do not find this to be improper and it does not necessarily result in a tendency to pervert the course of public justice.

Charge 2: Misconduct in a public office

A. Are the defendants Public Officers?

251.   It is argued by the defence that the prosecution has failed to prove that the defendants are holders of public office at the material time.

252.   It is admitted facts that at the material time, D1 was a Chief Investigator, D2 was a Senior Investigator and D3 was an Assistant Investigator of the ICAC. They were all serving officers at all material times.

253.   The charge of misconduct in a public office is a common law offence. The prosecution relied on s.3[1] of the Interpretation and General Clauses Ordinance, Cap.1 in their Opening Submission (at paragraph 13) to prove that the defendants were public officers.

254.   The defendants argue that the ICAC is not a body “under the Government” and as such those receiving emolument under it would not by definition be public officers.

255.   The defendants further argue that given that charge 2 is a common law offence and not a statutory offence, s.3 of the IGCO does not apply. According to s.2(1) of the IGCO,

“2(1) Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force, whether such other Ordinance came or comes into operation before or after the commencement of this Ordinance, and to any instrument made or issued under or by virtue of any such Ordinance.”

256.   I agree with the defendants on this point and find that s.3 of IGCO does not apply to the common law offence and cannot be used to define what is a public officer under common law.

257.   The defendants also argue that by virtue of Article 57[2] of the Basic Law, the ICAC is not part of the HKSAR Government. I find that I cannot agree with this proposition. Article 57 states that the ICAC shall be accountable to the Chief Executive, the head of the Government. If anything, Article 57 tend to support the public body status of the ICAC.

258.   Another indication of the public body nature of the ICAC is found in Article 101 of the Basic Law, where it sets down who the Government of HKSAR may employ to fill the post of the Commissioner Against Corruption, the head of the ICAC.

259.   Counsel for D1 referred to the work of Ian McWalters SC, “Bribery and Corruption Law in Hong Kong” 2^nd Edition in their closing submission as providing guidance to determine whether a person is a public official.

260.   At page 700, the learned author suggested that in determining whether a non-governmental organization is a public body, a two step approach should be taken. This suggestion is based on his perusal of pervious cases as well as factors drawn from civil law.

261.   The approach should be to first examine the nature of the duty being discharged by the non-governmental body, and secondly to examine the nature of the body discharging the duty.

“The nature of the duty

This issue looks to whether the duty being discharged by the organization can be broadly characterized as being a public one. In determining this issue, regard should be had to:

i. whether the duty is of a type that enables it to be characterized as being one traditionally regarded as public in its nature;

ii. whether the duty can be said to be one in the performance of which the public is interested; and

iii. whether the performance of the duty is one that can be said to be for the public good in that it is for the benefit of the whole community rather than only for a small section of the community.

The nature of the body discharging the duty

This issue looks to see whether the body performing the public duty is so structured that it and its employees cannot be regarded as part of the public sector.

i. whether the body discharging the duty is funded with or operates with the benefit of the public funds;

ii. whether it acts under some kind of governmental grant or authority;

iii. whether it has any coercive powers to assist it in the performance of its functions;

iv. whether the function it is given is exclusive to it;

v. whether the entity is wholly owned by the Government and if not the extent of the Government’s ownership;

vi. whether or not the entity operates as a profit-making enterprise along commercial lines;

vii. whether the Government has any control over the entity, especially in respect of the appointment of its head and appointment to its board;

viii. whether the entity is accountable in any way to the Government of the performance of its functions; and

ix. whether the entity has a statutory constitution.”

262.   This suggested approach appeals to this court and I adopt it for use in our present case. I find that the duties discharged by the ICAC is similar to those discharged by the Police who are traditionally regarded as public in its nature. The public is definitely interested in the performance of its duties and the performance of the duty of the ICAC is certainly for the public good and the benefit of the whole community.

263.   As to the nature of the organization itself, the ICAC operates on public funds (s.4 of the ICAC Ordinance, Cap.204 states that the expenses of the Commission shall be charged to the general revenue), it is a creature of statutes, it is not a profit making enterprise along commercial lines, the Commissioner of the ICAC is subject to the orders and control of the Chief Executive and holds office on such terms and conditions as the Chief Executive may think fit (s.5 of the ICAC Ordinance) and as mentioned above, is accountable to the Chief Executive under Article 57 of the Basic Law.

264.   I find that there can be no reasonable doubt that the ICAC is a public body and therefore its employees public officers, and I so find.

B. What amounts to misconduct?

265.   In the case of Sin Kam Wah & Another v HKSAR, FACC 14 of 2004, the Court of Final Appeal re-formulated the elements of the offence of misconduct in public office set out in the earlier case of Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381 and stated that the offence is committed where:

“45…

(1) a public official;

(2) in the course of or in relation to his public office;

(3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4) without reasonable excuse or justification; and

(5) where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

46. The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Willful misconduct which is without reasonable excuse or justification is culpable.”

266.   I have already found that the defendants were public officers at the material times. What the defendants were doing was in relation to their office held as investigating officers of the ICAC.

267.   I find that each of the defendants said and acted as they had in the meetings with PW1 wilfully. I find that they had misconducted themselves, specifically in ways as set out above in relation to particulars (i) and (ii). I find that the defendants did what they did to try to enhance the credibility PW1. This is not a reasonable excuse nor a justification to suggest to PW1 to give false evidence or to inform him of what other witnesses had said.

268.   I find the misconducts serious. To ask a witness to give false evidence and to supply him with information of other witnesses to enhance his credibility is not a trivial matter. It will ultimately affect the administration of justice by the court when the time comes for PW1 to give evidence.

269.   The fact that there had been no official record of any of the November and December 2008 meetings with PW1 goes to show that the defendants, at least D1 and D2, knew what they were doing was wrong since they did not wish to be found out.

Particulars of charge 2

Particulars (i) and (ii)

270.   Particulars (i) and (ii) overlap with the particulars of charge 1 with minor differences. In particular (i) of charge 2, instead of alleging that the defendants had ‘induced and persuaded’, they are accused of ‘inducing and persuading’ PW1 to give evidence which they knew or believed to be false. Counsel for the defendants did not make an issue out of that.

271.   In particular (ii) of charge 2, the allegation is more narrow in that the complaint against the defendants is only that they had supplied PW1 with information from the statements of other witnesses instead of information in general.

Particular item (iii) under charge 2:

Ignoring advice given in ICAC internal guidelines as to how witnesses should be dealt with

272.   The guidelines in question are found in exhibits P-15 to 20.

273.   According to the evidence of PW3 Mr. Kwong who headed the development team responsible for the drafting and dissemination of the guidelines, the documents would have been put online for officers including D1, D2 and D3 to view. Whether they did in fact view them, he could not say.

274.   In exhibit P-15, a document entitled “Extract of RO”, officers are reminded that “officers should be conscientious in ensuring that witnesses are not coached or trained, either intentionally or even inadvertently, when refreshing their memories from their statements and any exhibits referred to in their statements. Officers must not, in the course of a witness refreshing his memory, summarize each paragraph of his statements and then discuss the summary as this has inherent dangers, such as in causing the witness to feel compelled to agree with the summary and to adopt it in his testimony, even though the summary may not accurately reflect the witness’s evidence. The Court of Appeal, in its judgment (CACC No.199/2006), criticized the practice of summarizing the paragraphs of a witnesse’ statement when refreshing memory and emphasized that this practice must stop.” Exhibit P-15 is an extract of P-18, where the details of CACC 199/2006 was set out and the pertinent part of the reasons for verdict of the trial judge and the Court of Appeal was quoted. The version date of P-18 is 13^th June 2008, about 5 months before the defendants met with PW1.

275.   In exhibit P-16, a Training Bulletin entitled Refreshing Memory prior to Court dated 1996 states that “Any witnesses, including ICAC officers, may at any time prior to entering Court to give evidence, refer as often and for as long as they wish to any statement…to refresh their memory.” By implication, once the witnesses and officers entered court to give evidence, they can no longer do so.

276.   Any ambiguity in P-16 is clarified in exhibit P-17, an internal reference document entitled ‘Court Procedures’ with heading of ‘Witnesses Refreshing Memory before Court’ dated 2^nd February 2009, some 9 months prior to the various meetings between PW1 and the defendants.

277.   The preamble of the document states this: “Strict rules of evidence exist regarding how and when witnesses can refresh their memory from previously recorded documents prior to giving evidence in court. ICAC officers required to attend court to give evidence are no different to any other witnesses and must ensure compliance with the rules to negate any allegations of collusion, fabrication of evidence or coaching of witnesses.”

278.   There are 2 columns below that preamble, one labeled ‘CAN’, the other ‘CANNOT’. Under the ‘CANNOT’ column, at item 3), an officer cannot “coach a witness, comment or cross examine on the evidence to be given by a witness while that person is refreshing his memory.”

279.   At item 4), an officer cannot “summarize each paragraph of the witness’ statements and then discuss the summary with a witness as this will cause him to feel compelled to agree to the summary and to adopt it in his testimony.”

280.   At item 6), an officer cannot “refer or allow a witness to refer to…previously made witness statements or exhibits once that person has commenced giving evidence, unless given leave to do so by the court.”

281.   Exhibit P-19 is another Training Bulletin entitled “Introduction” dated 13^th June 2008. In this document, officers are brought up to date about the case of HKSAR v Tse Sui Luen and four others (DCCC No.350/2006), where “comments were made on the manner in which ICAC officers refreshed memory with prosecution witnesses…In the judgment, reference was made to two earlier judgments which touched upon the same subject, Court of Appeal judgment, HKSAR v Lee Wing-kan (CACC No.199/2006) and the judgment of the appeal committee of the Court of Final Appeal, Lee Wing-kan and HKSAR (FAMC No.28/2007). Officers should be mindful when refreshing memories with witnesses prior to giving evidence in court and should strictly observe the guidelines set out in Chapter 2-01A.”

282.   The “guidelines set out in Chapter 2-01A” are in fact found in exhibit P-20, a Training Bulletin entitled ‘Refreshing Memory’ with version date of 13^th June 2008, contents of which are essentially the same as in P-17, the ‘CAN’ and ‘CANNOT’ document.

283.   It is clear that if what the prosecution allege that the defendants had done in relation to particulars (i) and (ii) of charge 1, and particular (i), (ii) and (iv) of charge 2 is proved, then the defendants would have been in breach of the internal guidelines, specifically items (3), (4) and (6) of the Training Bulletin Chapter 2-01A (exhibit P-20).

C. The breaches by the defendants

(1) Teaching of PW1 how to answer questions

(a) 23^rd November 2009 meeting

By D2, in the presence of D3

284.   It is the prosecution’s case that D2 had taught PW1 how to answer certain questions. When asked for details, PW1 could answer that he could not recall. There was no need to mention exact figures. D2 anticipated questions from the defence and suggested ways to deal with those questions. D2 suggested for PW1 to answer that they were merely chitchatting, taking statement and discussing court procedure if asked by defence counsel about the contents of his meetings with ICAC officers.

285.   According to the prosecution, D2 suggested to PW1 what to say about warrant trading because it was not mentioned in PW1’s statements [counter 490-497, 502].

286.   I find that a proper listening of the conversation shows that D2 was telling PW1 that he just had to know it in general because it was not mentioned in the statements, whereupon PW1 jumped in to ask whether it meant that D2 wanted him to say that in court. D2 specifically said that there was no need to do so, and then said that PW1 would in any event remember it and there was no need to write that down.

287.   The prosecution allege that D2 took steps to ensure that the contents of the meetings between the ICAC officers and PW1 were not recorded anywhere.

288.   This part of the exchange started with D2 telling PW1 how the defence might seek to attack his credibility by asking him about his meetings with D2. D2 told PW1 to answer if he remembered and later on told PW1 not to worry as he will not write down what people they had met with in their records.

(b) By D1, in the presence of D2

289.   On this point, it is the prosecution’s case that at the 30^th November 2009 meeting (unrecorded), according to PW1’s evidence, D1 had told PW1 to answer in the negative if asked whether there was discussion of giving of evidence at the meetings.

(c) No proper records of meetings kept

290.   During the cross-examination of D1, when asked about the 30^th November 2009 meeting with PW1 which D1 did not deny attending, D1 tried to explain why the meeting was not recorded in his official diary (exhibit P-22). D1 first said that he was on vacation leave on that day and so did not make the entry. Upon returning to work on 2^nd December, D1 had forgotten to make the entry in either the official diary or his notebook.

291.   I find D1 not an honest witness on this point. He is clearly making up his evidence to try to explain why he conveniently failed to record the 3 meetings on 30^th November, 3^rd December and 4^th December 2009 he had with PW1 in the official diary or notebook. There is no reason why such a senior ranking official would commit such a basic mistake.

292.   It is the prosecution’s assertion that the failure to record goes to show the state of mind of D1 at the material time in that he knew what he was doing with PW1 was in breach of the rules governing his conduct as an ICAC officer and that he was aware that it was improper at best and worst illegal to have been discussing the evidence with PW1 in the circumstances D1 was in on the 3 days.

293.   I find that D1 and D2 did deliberately coach PW1, did comment on his evidence, and did cross-examine PW1 on the evidence to be given by him during the 2 recorded meetings.

294.   I find that D1 and D2 did summarize PW1’s witness statements, as well as that of other witnesses, and then discussed the summaries with PW1.

295.   I find that D2 did impliedly tell PW1 that he should keep on referring and reading his own statements even after he had started to give evidence in court, without the leave of court.

296.   As to D3 in relation to this particular, I will deal with him below separately.

297.   The question then is whether such breaches would amount to a misconduct, and whether the defendants committed the acts deliberately. If that is established, the court then has to consider whether the defendants had any reasonable excuse or justification to do so.

298.   I find that the said breaches do each amount to a misconduct. They are not trivial matters. The Court of Appeal deemed it necessary to warn ICAC officers to stop summarizing evidence of witnesses and the ICAC deemed it necessary to issue multiple bulletins to remind officers to comply with the guidelines on dealing with witnesses refreshing their memory.

299.   I find that, given the evidence of Mr. Kwong that the bulletins were posted on to the computer servers for everyone to see, it would be impossible that the defendants were not aware of the guidelines.

300.   I reject D1’s evidence that he might have inadvertently committed the breaches. As can be heard from the recordings and seen from the transcripts, there was nothing accidental about his coaching of PW1 at the 3^rd December meeting.

301.   As for reasonable excuse and justification, it would appear that D1 has put forward the excuse of him trying to make sure that PW1 gave ‘true and full’ evidence in court. I reject this as an excuse or justification.

302.   I find that the breaches are serious. The acts that the defendants were doing may result in the perverting of justice. PW1 would be able to enhance his credibility and appear to be more credible than he really may be in court, affecting the judgment of the court.

Particular (iv) of charge 2: Suggesting to PW1 that he could read his witness statements without the court’s leave during the course of his evidence

303.   In the tape recorded conversation for the 23^rd November 2009 meeting, D2 on various occasions suggested to PW1 that he could read his statements even after he had started to give evidence in court knowing that he should not be allowed to so read. It was further suggested by D2 that PW1 should say he had not read them when asked, that PW1 could read them at home because no one would see. D2 also hinted by implication that since no one was watching him, PW1 could read the statements.

304.   In the tape recorded conversation of the 3^rd December 2009 meeting, D2 clearly told PW1 he could revise his own statements every day after he got home from giving evidence in court, but that should he be asked about the reading, PW1 should deny it. [counter 407 to 409].

305.   According to PW1’s evidence in court, at the meeting on 30^th November 2009 with D1 and D2 in the car, D1 had told PW1 that he could accidentally read his statements at home after PW1 had started giving evidence.

306.   I find that D1 and D2 did so suggest and that what they did amounted to misconduct. D1 and D2 both must have known that for PW1 to read his own statements at home after starting to give evidence was not in accordance with the internal guidelines. They must have known that to do so may lead to PW1’s credibility being enhanced. It is a serious misconduct as the issue of credibility may ultimately affect the outcome of the trial. D1 and D2 both hinted to PW1 that he could read the statements without saying it explicitly and directly. This goes to show that they themselves knew what they were asking PW1 to do was wrong. It also goes to show that they did not inadvertently told PW1 to do so.

D3’s role

307.   As mentioned above, I deal now with D3’s role in relation to particulars (iii) and (iv) of charge 2.

308.   Of the 2 tape recorded meetings, D3 was only present at the 23^rd November 2009 meeting.

309.   In relation to the 3^rd December 2009 meeting, I find that there is not sufficient evidence to prove that D3 knew what D1 and D2 were saying and doing. There was no mention whatsoever in that meeting of D3, either expressly or impliedly. I find that the prosecution cannot prove beyond reasonable doubt that D3 was party to what was said and done by D1 and D2 at that meeting.

310.   That leaves us with the 23^rd November 2009 meeting in relation to D3.

311.   Between counters 154 and 168, it is clear that D3 had joined in the discussion with PW1 of his evidence, specifically in relation to whether PW1 had taken some money in the form of a bonus. D3 suggested for PW1 to go back to watch his video recorded interview in order to see how to deal with that area. PW1 said that the other side would not be looking at his tape. D3 said the opposition could ask for the tape. D3 proceeded to state his view on how the $300,000 that PW1 was taking would be distributed. PW1 then explained that in relation to wages it had been written in his statement already. D1 interjected by saying that in relation wages he was sure that it had been mentioned, which D3 questioned at counter 163 if it was the case and D1 said that he could remember that it was in the first statement. The 3 of them then continued to discuss about how the bonus was distributed. At counter 197, D3 suggested that one of the questions PW1 might be asked is why so much money was given to ‘Sup Chai’.

312.   Even on this segment alone, I find that D3 and D2 had together coached PW1 as a witness, thus ignoring the internal guidelines of the ICAC. On this alone, D3 could be guilty of charge 2, subject to a finding on willfulness, reasonable excuse and justification.

313.   In relation to what D3 said at counter 223, Mr. Wong at paragraph 21(v) of his closing submission said that D3 was “puzzled why the amount of commissions to PW1 and brothers were decided by PW1”. I find that such is not the case. The proper understanding of what D3 said with regard to the context of the conversation that had been going on is that, D3 was reminding PW1 that he would also have to prepare himself for questions about how the money from the warrant trading came to be distributed by PW1.

314.   I find that in relation to this part of the conversation, between counters 223 and 230, D2 and D3 were discussing with PW1 his evidence and the possible challenges that the opposition could level on him and how PW1 could best deal with those challenges.

315.   In relation to counters 241 to 272, Mr. Wong again submitted that D3 was just puzzled about the ‘floating basis of commission to be given to the brothers and PW1’. I find that this is again not the case. A proper interpretation of the conversation between D2, D3 and PW1 is that they were still discussing about the evidence that PW1 would be giving and how best to deal with questions from the opposition. In fact, at one point, between 245 and 249, D2 and D3 were themselves exchanging their own views, while PW1 was listening on, causing PW1 to ask the both of them to slow down.

316.   From counter 285 onwards, D2 began to explain some court procedure to PW1. Mr. Wong for D3 in his closing submission says that D3 told PW1 not to read his own statements and discuss evidence with others.

317.   I find that, first of all, although D2 did tell PW1 at counter 307 that once court started he was not “supposed” to read his own statement, later on at 311, D2 said that no one would be following PW1, PW1 could have read the statement at home. The most telling words from D2 are at counter 327, when D2 said that his requirement is that, if someone turns around to ask him if he had read it, to which PW quickly replied, “of course I would answer I had not.” Then D2 said that since PW1 will not be watched over 24 hours, and stopped short of saying that PW1 could secretly read the statement without telling anyone.

318.   What D3 said during this part of the conversation is indistinct. From what can be made out, he did not seem to have explicitly agree with what D2 was saying.

319.   I am not sure if D3 approved of D2’s hinted suggestion to PW1 to read his statement even after starting to give evidence. I will grant him the benefit of the doubt on this point.

320.   In relation to counters 417 to 445, I find that D3 was again having a discussion with D2 about how PW1 should best answer certain questions when put to him. This time the subject matter was how much money had been taken out from the various accounts, being profits from the fraudulent warrant trading.

321.   At counters 534 to 538, I agree with Mr. Wong’s submission that D3 was explaining the role and function of the prosecuting counsel to PW1, which in itself is not improper.

322.   The next contribution by D3 to the conversation was at 697 to 760 when D3 asked D2 to ask PW1 about his aunt, Tse Tai Tai since they were not able to contact her. According to the evidence of Ms. Ada Lau, one of D3’s responsibilities was the service of witness summonses and this corroborated what D3 said there.

When D3 was alone with PW1

323.   At counter 804, while D2 was out of the room, D3 clearly discussed with PW1 about his evidence and analyzed for PW1 about the time when Raymond had brought money to PW1, how because the operation was continuous, unless PW1 did the calculation he would not be able to say clearly. PW1 then remarked that it was very confusing. D3 agreed but said that it was okay to be confused since it would be easier to stick with the overall figure. Although the full conversation cannot be heard, it is still clear that D3 was carrying on a discussion with PW1 about his evidence and performing some analysis with PW1 about how he should be answering questions. At 834, D3 was telling PW1 about some techniques in asking his own questions in court.

324.   I find that the overall effect of what D3 was doing was to coach PW1. On the basis of the evidence referred to above, I find that D3 was in breach of the internal guidelines. I find that his breach amounted to a misconduct. I find that he had misconducted himself wilfully, without reasonable excuse and justification.

Verdict

Charge 1

325.   I was referred to the case of HKSAR v Yeung Wai Birney, CACC 176/2010 by counsel for the defendants at the time of their closing, I find the following paragraph particularly helpful,

“76. An approach to a witness may or may not have a tendency to pervert the course of justice. Whether it does depends on the circumstances. “Such an approach can only properly be made if its purpose is lawful and no unlawful or improper means are used to secure that purpose.” Egan at para 134. (Emphasis added). Improper means includes improper pressure : Egan at para 24. The means may be improper even though not in themselves unlawful: see, for example, R v Kellett [1976] 1 QB 372. Conduct designed to overbear the free choice of an accused or witness will constitute improper means: Meissner v The Queen (1995) 184 CLR 132 at 148; Attorney-General (Victoria) v McLachlan (1997) 93 A Crim R 557. So, for example, “it is lawful to try to dissuade a witness from committing perjury by reasoned arguments supported by material facts and documents, but threats or improper pressure take the interference across the line and into criminality”: Taffs at 72. See also R v Selvage [1982] 1 QB 372 at 379H.”

326.   Applying this to our present case, the defendants’ approach to PW1 can only properly be made if the purpose is lawful AND no improper means are used to secure that purpose. Conduct designed to overbear the free choice of a witness will constitute improper means.

327.   The defendants are ICAC officers handling the investigation of the 1^st warranttrial where PW1 was a key suspect and was still under the risk of being prosecuted for his part in the warrant trading scheme up to the moment just before he entered the courtroom when the Letter of Immunity was finally given to him.

328.   In the case of R v Kellett [1976] 61 Cr App R 240, Stephenson LJ said:

“Pressure which may be permissible at one stage of the particular proceedings may be improper at another. What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority”

329.   I find that the defendants were persons in a position of influence or authority over PW1 at all material times.

330.   I find that even if assuming the defendants were just trying to make sure that PW1 would give “true and full” evidence in court, the repeated meetings with PW1 and repeated questioning of PW1 and the repeated coaching of PW1 by the persons in a position of authority of PW1 amounted to acts to overbear the free choice of PW1 as to what he would or would not say in evidence at the trial.

331.   I find therefore that the defendants had used improper means to approach PW1 and that what they did had the tendency to pervert the course of justice.

332.   If I should find however that the defendants did not just want PW1 to give “true and full” evidence, but had, as the prosecution tried to prove and had proved in their first particulars under charge 1 that they had induced and persuaded PW1 to give evidence which they knew or believed to be false, then it is unnecessary to consider the means that the defendants had used since what the defendants were asking PW1 to do was obviously unlawful, and “the unlawfulness of the object is sufficient to found the offence”: See paragraph 137[3] of Egan, per Ribeiro PJ.

The intention to pervert the course of public justice

333.   As for the requisite intent, the mens rea of the offence, what is required is an intent that the course of justice be deflected.

334.   In HKSAR v Yeung Wai Birney, supra, at paragraph 82:

“82. As for the requisite mens rea, the offence is one of specific intent. The intent required is that the course of justice be deflected. The prosecution has to prove either an intent to pervert the course of justice or an intent to do something which if achieved will have that effect.”

335.   I find that the defendants must have intended that PW1 should be coached so as to give evidence which they knew or believed to be false and that they had supplied information with the intention to enhance PW1’s credibility. In so doing, I find that they must have known and intended that justice be so perverted.

D1

336.   I find that D1 did at the 3^rd December meeting, together with D2, applied improper pressure on PW1 in inducing and persuading PW1 to give evidence which D1 and D2 knew or believed to be false. I find that D1 together with D2 did supply PW1 with information including information from the statements of other witnesses with intent to enhance PW1’s credibility. I find that their series of acts had a tendency to pervert the course of public justice. I find that D1 and D2 did intend that the course of public justice be so perverted. I convict D1 of charge 1 accordingly.

D2

337.   I find that D2 did at the 3^rd December meeting, together with D1, applied improper pressure on PW1 in inducing and persuading PW1 to give evidence which D1 and D2 knew or believed to be false. I find that D1 together with D2 did supply PW1 with information including information from the statements of other witnesses with intent to enhance PW1’s credibility. I find that their series of acts had a tendency to pervert the course of public justice. I find that D1 and D2 did intend that the course of public justice be so perverted.

338.   I find that D2 together with D3 did at the 23^rd November 2009 meeting seek to overbear the free will of PW1 to choose whatever answer he wishes to give in evidence at trial. I find that they did so to ensure that PW1 give evidence that would enhance the prosecution case. I find that the means they employed to do so was improper in that they are person in authority against PW1 and when they repeatedly questioned PW1 and discussed with PW1 about the answer he should be giving. I find that what they did had a tendency to pervert the course of public justice. I find that they intended that the course of public justice be so perverted.

339.   I therefore convict D2 of charge 1.

D3

The problem with D3 in relation to charge 1

340.   D3 is jointly charged with D1 and D2 on this charge. What I find D3 had in fact done happened at the 23^rd November 2009 meeting only and it was only in relation to D2 and D3 coaching PW1 as to what answers to give. There is no suggestion by the prosecution that D2 and D3 had at this particular meeting induced or persuaded PW1 to give false evidence or that PW1 was supplied with information including statements of other witnesses with intent to enhance his credibility.

341.   I am not satisfied that D3 was part of the joint enterprise between D1 and D2 to commit the acts set out in particulars (i) and (ii) of charge 1 and I acquit D3 of charge 1 accordingly.

Charge 2

D1

342.   For the same reasons I gave in relation to particulars (i) and (ii) under charge 1, I find what D1 did at the 3^rd December 2009 meeting as set out in my findings above amounted to misconduct. I find that D1 wilfully did what he had done. I find that there is no reasonable excuse or justification for his doing so.

343.   I find that the failure of D1 to follow the ICAC internal guidelines as to how witnesses should be dealt with a misconduct on his part. I find that the defendant wilfully ignored the guidelines. I find that there is no reasonable excuse or justification for him to do so.

344.   As to particular (iv) of charge 2, I find that on the evidence of the tape recording, I cannot be sure that D1 was ‘in it together’ with D2 on this particular act.

345.   Nevertheless, on the basis of particulars (i), (ii) and (iii) having been proved beyond reasonable doubt, I convict D1 of charge 2.

D2

346.   For the same reasons I gave in relation to particulars (i) and (ii) under charge 1, I find what D2 did at the 23^rd November and 3^rd December 2009 meetings as set out in my findings above amounted to misconduct. I find that D2 wilfully did what he had done. I find that there is no reasonable excuse or justification for his doing so.

347.   I find that the failure of D2 to follow the ICAC internal guidelines as to how witnesses should be dealt with a misconduct on his part. I find that the defendant wilfully ignored the guidelines. I find that there is no reasonable excuse or justification for him to do so.

348.   I find that D2 did suggest to PW1 that he could read his witness statements without the court’s leave during the course of his evidence. I find that this act amounted to a misconduct on his part. I find the defendant wilfully did so, without reasonable excuse or justification.

349.   I therefore convict D2 of charge 2 accordingly.

D3

350.   I find that D3 did together with D2 at the 23^rd November 2009 meeting coach PW1, commented on the evidence to be given by PW1.

351.   I find that this is a failure to follow the ICAC guidelines. I find that this amounted to a misconduct on D3’s part. I find that the misconduct is serious and was committed by D3 wilfully, without reasonable excuse or justification.

352.   I convict D3 on charge 2 accordingly.

[1] Section 3: "public officer" (公職人員) means any person holding an office of emolument under the Government, whether such office be permanent or temporary

[2] Article 57: “A Commissioner Against Corruption shall be established in the Hong Kong Special Administrative Region. It shall function independently and be accountable to the Chief Executive.”

[3] 137. On the other hand, an approach to a witness would obviously be unlawful if its object were, for example, to persuade the witness to give false or perjured evidence or to refrain from telling the truth.  In such cases, it is unnecessary to consider the means used.  It is no defence to say that the accused merely threatened the witness with the exercise of a legal right.[82]   The unlawfulness of the object is sufficient to found the offence.[83]