HKSAR v. CHONG CHOONG LEONG

HCMA258/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 258 OF 2013

(ON APPEAL FROM ESCC 580 OF 2012)

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J U D G M E N T

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1.  The Appellant was convicted of one count of ‘Doing an act tending and intended to pervert the course of public justice’ contrary to common law (‘pervert the course of justice’). He was sentenced to 18 months’ imprisonment on 25 March 2013. He appealed against conviction and sentence.

BACKGROUND

2.  Mr Poh Po Lian (‘PW1’) [1] was the main witness in a trial in the District Court (‘the DC trial’) concerning the senior management of CY Foundation Group Limited (‘CYF’) [2].  PW1 had a major shareholding in CYF through his company Luck Continent Limited (‘Luck Continent’).

3.  The defendants in the DC trial were:

(a)   the former Chairman of CYF, Mr Cheng Chee Tock, Theodore (‘Cheng’);

(b)   the former financial controller of CYF, Mr Chong Ching Lai (‘Chong’), and

(c)   the former adviser of CYF, Mr Philip Yu (‘Yu’).

4.  Cheng and Yu were jointly charged with one count of conspiracy to defraud.  Chong were charged with four counts of dealing with proceeds of an indictable offence.[3]  Yu were charged with two counts of dealing with proceeds of an indictable offence.[4]

5.  The DC trial was scheduled to commence on 6 February 2012.  PW1 started giving evidence on 9 February 2012 which continued until 16 February 2012.

6.  The prosecution alleged that the appellant contacted PW1 by phone and text messages from 31 January 2012 to 6 February 2012. He attempted to persuade PW1 to show leniency[5] in the DC trial.  The appellant admitted that he had contacted PW1 during that period.  He was only assisting to resolve the civil dispute between PW1 and Cheng’s wife, Ms Leonora Yung (‘Yung’)[6].  It had nothing to do with the DC trial.

PROSECUTION EVIDENCE

7.  On 31 January 2012, PW1 received a phone message that ‘someone was interested in discussing his shares in Luck Continent and CYF’ [7]. PW1 did not reply.  Later at about 1125 am on the same day, the appellant sent the following text message to PW1:

“Dato[8], it is Paul Chong here. How long will you be in HK for? We have a proposal for you but need your views before the court hearing next week. Regards, Paul.” (my emphasis)

8.  PW1 recalled meeting the appellant about two years ago in Singapore.  At that time the appellant indicated interest in Luck Continent’s controlling shares in CYF.  PW1 understood that the phone message referred to the shares of CYF and the text message referred to the DC trial.

9.  A short while later on the same day, PW1 received another text message:

“Dato, Paul Chong of Samsung Securities 85295027668. He will try to call u. He is in HK too.”[9]

10.  PW1 knew that the discussion on CYF shares was a sensitive subject.  He did not reply.

11.  At 1648 hours on the same day, the appellant called PW1.  The gist of the conversation was that ‘the appellant had been entrusted by someone from the Ministry of State Security[10] to talk to PW1 about his shares.  The appellant stated that he would not care if Cheng got into trouble in the case on 6 February but the prerequisite of the discussion was that Leonora Yung[11] would be free from trouble.  They could discuss the matter in Macau or the Mainland but the discussion must take place before the case started.’ (my emphasis)

12.  PW1 ended the conversation on the excuse that he had to seek legal advice.  In fact, he had no intention to do so.  In hindsight, PW1 understood that the appellant was trying to influence his impartiality as a witness.

13.  On 2 February 2012, the appellant sent another text message to PW1:

“Dato, the Chinese side is anxious to hear from you and meet you before the court hearing next week. Have you managed to seek legal advice? Dato Paul Chong” (my emphasis)

14.  In the same afternoon, the appellant sent another text message to PW1:

“Dato, appreciate a response, even if you are not interested in what they have to offer you. At least I can tell them. Paul Chong”

15.  PW1 did not reply as he knew that the subject matter was sensitive.  The appellant called PW1 again at night on 2 February 2012. PW1 missed the call.

16.  At about 11 am on 3 February 2012, PW1 returned call to the appellant.  He told the appellant that it was inconvenient to discuss.

17.  At about 2049 hours on 6 February 2012, the appellant sent a text message to PW1:

“Dato, kind advice from me as a friend. Please 手下留情. Thanks.”

18.  After receiving this text message, PW1 worried about his safety and that of his family.  He even thought about not giving evidence in the DC trial.  Finally, he reported the matter to the ICAC.

DEFENCE CASE

19.  At the time of the offence, the appellant alleged that he just assisted his wife’s godfather (DW2) to relay a share trade proposal to PW1[12]. It was intended to settle a shareholders’ dispute in relation to CYF.  The proposal was from DW2’s friend, Mr Tse.

20.  DW2 sought the appellant’s assistance as the appellant was also a Dato.  The appellant recalled that his friend, Stephen Wang (Wang), introduced PW1 to him about two years ago during a business meeting in Singapore.  He thus contacted Wang the next day for the phone number of PW1 but unsuccessful.

21.  On 27 January 2012, the appellant met Mr Tse at the café of Park Lane Hotel.  Mr Tse told the appellant that he ran errands for a friend working in the State Administration of Foreign Exchange (SAFE)[13] and the Local Securities Bureau.  This friend was very concerned about the longstanding shareholders’ dispute between PW1 and Yung in CYF.  This friend would like to resolve the dispute amicably by offering a share trade of CYF shares so that the reputation of Yung’s family was untarnished and Yung would come out of the dispute unharmed.  This friend said that PW1 had filed civil proceedings against Yung which would be heard in about two weeks.  This friend preferred to have PW1’s view on the proposal before the hearing.  They could meet and discuss in Macau or the Mainland.

22.  Meanwhile, the appellant received information that Samsung Securities (Asia) Limited would shut down its office in Hong Kong. He lost his job and was busy clearing his office and finding a new job in the interim.

23.  On 31 January 2012, the appellant obtained the phone number of PW1 from Wang.  He thus sent a text message to PW1.[14]

24.  In the afternoon on the same day, the appellant relayed Mr Tse’s message to PW1 by phone.  He told PW1 in Putonghua the name of SAFE——‘外管局’. PW1 indicated that he would seek legal advice.  While clearing his office, he told Mr Stephen Metcalfe (DW3) that he was merely doing a very simple favour for his godfather by conveying a message to a Malaysian businessman in an attempt to settle a longstanding shareholders’ dispute.

25.  On 2 February 2012, the appellant sent two text messages to PW1 who did not respond.[15]

26.  On 3 February 2012, PW1 called the appellant and indicated that it was inconvenient for him to consider the share trade at that time.

27.  The appellant had also told a friend Mr Kersten Hui (DW5) [16] that he was doing a favor for his godfather. DW5 happened to know PW1 also.  DW5 refused to put in a good word for the appellant.  However, the appellant consulted DW5 on the use of an appropriate idiom for the ongoing dialogues with PW1.  They finally come up with ‘手下留情’.  In the evening on 6 February 2012, he sent another text message to PW1 using that idiom[17].

28.  The appellant stressed that he did not know that PW1 was a witness in the DC trial.  He had no intention to interfere with that trial.

THE LEARNED MAGISTRATE’S DECISION

29.  The learned magistrate pointed out that PW1’s evidence was hardly challenged.  She found that PW1 was honest and credible.  His evidence was clear and direct.  The learned magistrate accepted his evidence.

30.  The learned magistrate rejected the evidence of the appellant, DW2, DW3 and DW5.  She listed out the major inconsistencies of their evidence in the statement of findings.  I do not need to repeat all of them here.  I summarise those relevant to this appeal as follows:

a.  The appellant was to relay a prospective share trade for settling the shareholders’ dispute of CYF, however, he did not know the identity of the prospective buyer and the terms of the proposal.

b.  The appellant gave evidence that he wanted to find out more about the dispute from Mr Tse before contacting PW1.  However, under cross-examination, the appellant admitted that he had not asked Mr Tse about the shareholders’ dispute.  Besides, DW2 gave evidence that the appellant did not explain the reasons for meeting Mr Tse.

c.  The appellant learned about the longstanding shareholders’ dispute of CYF when he met PW1 in an earlier occasion.  He also knew that it concerned allegations of embezzlement and dispute in the ownership of shares.  The learned magistrate pointed out that the appellant could not have mistaken that dispute as ‘the court hearing next week’ or a new set of proceedings against Yung.  He could not have thought that share trade of CYF was possible without resolving the ownership dispute.  As the appellant had a law degree, the learned magistrate thought that he could not be as ignorant of the law as he tried to make out.

d.  Given the vast business network of Yung and her family in Hong Kong, the learned magistrate rejected the appellant’s claim that they chose to settle the shareholders’ dispute of CYF through DW2 and Mr Tse. Both of them had little relevant connection.

e.  The learned magistrate pointed out that the first text message[18] sent by the appellant to PW1 on 31 January 2012 did not mention any shareholders’ dispute nor share trade proposal.  It only mentioned a ‘proposal’ and a ‘court hearing next week’.  This was contrary to the evidence of the appellant who told the court that the text message was about a proposal for a share trade to settle the shareholders’ dispute.

f.  The learned magistrate did not accept that PW1 might have misheard ‘外管局’ as ‘國安局’.  She pointed out that the tones of the two terms in Putonghua were so different that it was impossible for PW1 to be mistaken. She rejected the appellant’s evidence that he only mentioned ‘外管局’.

g.  The appellant was persistent in getting a reply from PW1 by sending text messages repeatedly.  The learned magistrate found this conduct unreasonable given that he was just doing a favour for DW2.

h.  The appellant explained that he contacted PW1 persistently as he believed the latter was taking legal advice.  Without detailed terms of the share trade proposal, PW1 could not have considered the proposal or taken legal advice.  The learned magistrate rejected the appellant’s evidence.

i.  The appellant claimed that he was busy with job hunting at the material time, he only sent text messages to PW1 when he suddenly recalled his promise to do a favour for DW2.  The learned magistrate pointed out that this was contrary to the telephone records which showed that the appellant talked to Mr Tse prior to sending the text messages on 2 & 6 February 2012[19].

j.  While the appellant said DW2 and Mr Tse were friends for about 40 years, DW2 only knew that Mr Tse’s work was related to a Chinese restaurant and did not know his occupation.

k.  DW2 had no connection in Malaysia, there was no reason why Mr Tse chose to ask him about PW1.  DW2 claimed to have 50 years experience in business, yet he did not know shares of listed companies were traded in the stock market.

l.  The learned magistrate did not accept the evidence of DW3 who claimed to have heard the appellant talking about a deal on the phone.  The learned magistrate pointed out that DW3 could not even remember the language used by the appellant during the said telephone conversation.  Further, they were not working together any more as Samsung Securities would close down, there was no reason for DW3 to enquire about the telephone conversation.  Even the term Dato was mentioned, that should not have raised any attention as the appellant was also a Dato.

m.  DW5 was aware of the shareholders’ dispute of CYF and the company was under investigation by the ICAC.  When the appellant told him about the share trade proposal for settling the shareholders’ dispute, he did not mention this information to the appellant.  Given that he and the appellant were business friends for 9 years, the learned magistrate found this unreasonable.

n.  According to DW5, the proposal was for PW1 to buy out Yung’s CYF shares or vice versa.  This was inconsistent with what the appellant said that it was the Chinese party to buy out PW1’s shares.

o.  DW5 explained that there could be no concession or win-win situation in business, the other idioms[20] were therefore inappropriate.  The learned magistrate pointed out that DW5 well knew that the appellant was attempting to settle a dispute which must involve negotiations and concessions by parties.  His explanation was wholly unreasonable.

31.  The learned magistrate applied the objective test and concluded that the appellant’s conduct had a tendency to pervert the course of justice.  She further inferred that the appellant had intended to pervert the course of justice in relation to the DC trial.  She convicted the appellant.

DISCUSSIONS ON THE GROUNDS OF APPEAL AGAINST CONVICTION

a)  Tendency and intention to pervert

32.  Counsel for the appellant, Mr Ching Y Wong, SC, submitted that the last text message was sent at about 2049 hours on 6 February 2012.  By that time, the first day of the DC trial had concluded. PW1 might have completed his evidence.  There was no point for the appellant to send the text message.  PW1 could not be influenced.  Mr Wong argued that there was no evidence that the appellant knew PW1 had not given evidence on that day[21], there must be a reasonable doubt as to his intention to pervert the course of justice in the DC trial.

33.  Mr Wong complained that the learned magistrate failed to resolve the above issue which amounted to a material irregularity.

34.  Counsel for the respondent, Ms Winnie Lam, argued that it was unlikely that PW1 could have completed his evidence on the first day of the DC trial given its complexity.  She urged this court to consider the series of acts by the appellant from 31 January 2012 to 6 February 2012.  The content of those text messages and telephone conversations supported an irresistible inference that the appellant had the necessary intent.

35.  The intention of the appellant should not be ascertained by the events on 6 February 2012 alone.  I agree with the respondent that the whole course of his conduct must be considered.  Whether the appellant knew PW1 had completed his evidence or not could only be part of the circumstantial evidence upon which inference could be drawn.  Certainly, if the appellant knew PW1 had completed his evidence before sending the text message on 6 February 2012, it might be more difficult to infer that he had an intention to pervert the course of justice in the DC trial.  Conversely, if the appellant did not know, the inference of his intent to pervert might be more readily drawn.  In this case, there was no evidence in this respect either way. The learned magistrate needed not speculate on that issue.  She could only consider the evidence before her.  The question then boiled down to whether there was sufficient evidence to draw an irresistible inference that the appellant had the intent to pervert the course of justice.

36.  What was the evidence which enabled the learned magistrate to draw the inference?  It included telephone conversations and text messages as follows:

a) On 31 January 2012, PW1 received a phone message saying that someone was interested in discussing his shares in Luck Continent and CYF.[22]

b) At about 1125 am the same day, the appellant sent this message to PW1, “Dato, it is Paul Chong here. How long will you be in HK for?  We have a proposal for you but need your views before the court hearing next week.  Regards, Paul.” (my emphasis)[23]

c) A short while later on the same day, the appellant sent another text message to PW1, “Dato, Paul Chong of Samsung Securities 85295027668.  He will try to call u. He is in HK too.”[24]

d) At 1648 hours on the same day, the appellant called PW1.  The appellant told PW1 that ‘he had been entrusted by someone from the Ministry of State Security to talk to PW1 about his shares.  The appellant stated that he would not care if Cheng got into trouble in the case on 6 February but the prerequisite of the discussion was that Leonora Yung would be free from trouble.  They could discuss the matter in Macau or the Mainland but the discussion must take place before the case started.’ (my emphasis)[25]

e) On 2 February 2012, the appellant sent another text message, “Dato, the Chinese side is anxious to hear from you and meet you before the court hearing next week.  Have you managed to seek legal advice?  Dato Paul Chong” (my emphasis). [26]

f) In the same afternoon, the appellant sent another text message to PW1, “Dato, appreciate a response, even if you are not interested in what they have to offer you.  At least I can tell them. Paul Chong.”[27]

g) At the same night, the appellant called again but PW1 missed the call.[28]

h) On 3 February 2012, at about 11 am, PW1 returned call to the appellant.  He told the appellant that it was inconvenient to discuss.[29]

i) On 6 February 2012, at about 2049 hours, the appellant sent a text message to PW1, “Dato, kind advice from me as a friend.  Please 手下留情.  Thanks.”[30]

37.  On 31 January 2012, the text messages and the phone message referred to PW1’s shares in CYF and the hearing next week.  The appellant stressed during the telephone conversation that the discussion must start before the case commenced on 6 February 2012.  The prerequisite was to get Yung out of trouble but would not care about Cheng.  

38.  Again in the text messages on 2 February 2012, the appellant stressed that the discussion must be before the court hearing next week.

39.  In the last text message on 6 February 2012, the appellant invited PW1 to be ‘手下留情’. There is no dispute that this idiom means ‘to show leniency’.

40.  I agree with the learned magistrate that there was no detail about the share trade proposal.  In reality, it was not possible for PW1 to have an informed consideration.  Further, the idiom ‘手下留情’ did not fit in the context of a proposal for share trade as the appellant claimed.  In my view, the appellant’s repeated emphasis that the discussion should be before the hearing next week was a telling point.  For the reasons stated in para 60, he could not have mistaken the nature of the hearing.  It was not a coincidence that he mentioned the case commencing on 6 February 2012 in which Cheng was a defendant.  He must be referring to the DC trial.

41.  Mr Wong pointed at several parts in the transcript of proceedings to demonstrate that the discussion was about the sales of shares of CYF only.  He also pointed out that PW1 did not feel interfered.

42.  According to the evidence of PW1, he confirmed that apart from proposing a discussion on the share trade, the appellant also requested a guarantee that Yung would be free from trouble and he would not care about the situation of Chen in the case commencing on 6 February 2012.  He also stressed that the discussion had to be before the case started.[31]  According to PW1, all subsequent text messages concerned about the proposed discussion and the appellant was persistent in getting a reply.  PW1 thought it was sensitive and inconvenient to discuss due to the DC trial.  He thought it might affect his impartial role as a witness. [32] PW1 finally felt worried on the 6 February 2012 that he reported the matter to the ICAC.[33]  All this evidence contradicted the argument of Mr Wong, SC.

43.  Mr Wong, SC, also drew my attention to the transcript where PW1 agreed that he might have misheard 外管局 as 國安局. In that part of the evidence, PW1 reiterated four times that he heard the appellant said 國安局 before finally agreed that he might have misheard.[34]

44.  The learned magistrate discussed this issue and ruled that it was impossible for a Putonghua speaker to mishear the two terms as the tone was so different.[35]

45.  Though PW1 showed some hesitation in his evidence, the learned magistrate was right to consider the relevant evidence and come to her own conclusion.  In addition, the learned magistrate found that the appellant was not credible and rejected his evidence.  In my judgment, there was no error in resolving this issue as the learned magistrate did.

46.  Given the above, I do not accept this ground.

b)  PW1 did not understand the SMS

47.  Mr Wong, SC, argued that PW1 did not understand the text message sent by the appellant on 6 February 2012.  He relied on the evidence during cross-examination when PW1 said that he did not accuse the appellant of anything and did not understand what it meant by being lenient.[36]  Mr Wong argued that this must mean that the text message had no tendency to pervert the course of justice.  Had the appellant intended to pervert, he would not have made it so general that PW1 could not understand.

48.  Ms Lam pointed out that it was not the case that PW1 did not understand the text message.  He just did not understand why the appellant asked him to show mercy or be lenient.  PW1 was so worried that he reported the matter to the ICAC.  Ms Lam submitted that the only purpose for telling a witness to be lenient was to influence his evidence in court.

49.  Having read the relevant part of the transcript[37], I am sure PW1 understood the text message sent by the appellant on 6 February 2012.  It meant that the appellant asked him to be lenient.  However, he did not understand the reason behind the appellant’s conduct.  PW1 further elaborated that:

“…My first impression was that may be under some circumstances he (the appellant) had heard some threatening things because previously all the messages were about the Ministry of State Security in Mainland China…I was very worried that they were prepared to do something if I did not cooperate.”

Later on he added that:

“…And my worry in this incident was not how to be lenient, my concern was that if I was the witness, would there be any harm done to myself or my family?...”

He went on to explain that:

“…And so the only thing I could do was to refer the case to the ICAC to let them find out the truth behind the matter.”[38]

50.  PW1 explained further that:

“Before 6 February, I did not make a report because I did not want to be involved in the complication of the matters, and I did not wish that my response would cause any trouble for Paul Chong that was why I was just trying to avoid in making a response to this matter. All along, until 6 February when I received this SMS message and I started to be worried.”[39]

51.  As to PW1’s evidence during cross-examination, it must be assessed in context.  At that time, PW1 was talking about intimidating phone calls he and his family received before the DC trial.  However, he was unable to trace the callers.  He thought those calls were an attempt to persuade him not to give evidence or change his evidence.[40]  It was against this background that the cross-examination by Mr Wong, SC, went on as follows:

“Q. And these, you thought, were made with an attempt to persuade you not to give evidence or change your evidence, or what?

A. I think so.

Q. You think so, all right. And because you can trace Paul Chong’s contact to you, so you list (link) that as something to do with asking you to give false evidence, or not to give evidence at all? Is that what you’re meaning?

A. At that time I did not accuse Paul Chong of anything. I was just concerned about my family’s safety, and I do not understand what it meant by being lenient. But this phrase had an impact on me, affecting my testifying in court.”[41]

52.  In the above exchange, when PW1 said he did not accuse Paul Chong of anything, he meant that he would not link Paul Chong with those intimidating phone calls.  While PW1 was not sure about the meaning of being lenient, he was adamant that it affected his testimony in court.

53.  The above as a whole indicated that PW1 understood that the appellant asked him to be lenient in giving evidence, however, he was not sure about the background of the matter.  He worried about his safety if he did not cooperate in the DC trial. 

54.  Since 31 January 2012, PW1 understood that it was sensitive and inconvenient for him to discuss about the shares of CYF with the appellant as he would be a witness in the DC trial.  He tried to avoid responding to the appellant’s messages.  In fact, PW1 was consistent all along in his interpretation of the intention of the appellant.  This intention became all too obvious on 6 February 2012.

55.  In my judgment, the evidence does not support Mr Wong’s argument that PW1 did not understand the text message on 6 February 2012.  I reject this ground.

c) Not caring about Cheng

56.  Mr Wong, SC, pointed out that during the telephone conversation on 31 January 2012, the appellant told PW1 that he would not care if Cheng got into trouble in the case on 6 February, but the prerequisite was that Leonora Yung would be free from trouble.

57.  As Cheng, Yung and PW1 were parties in various civil dispute concerning CYF shares, Mr Wong, SC, argued that there was always a possibility that the appellant was talking about the CYF shares in relation to other civil disputes.  It might not be connected with the DC trial especially when Yung was not a defendant in the latter.

58.  Mr Wong, SC, complained that the learned magistrate failed to consider this possibility.

59.  Ms Lam pointed out that Yung was in charge of the administration and personnel department of CYF.  Since the DC trial concerned a fraud within CYF, it made good sense that the appellant wanted Yung out of trouble.  Ms Lam submitted that at the time of the offence, there were no fresh civil action between PW1, Yung and Cheng.  The ongoing civil actions were either dormant or concluded.  It was highly improbable that the appellant meant other civil actions when he said the court hearing next week.

60.  In rejecting the appellant’s evidence, the learned magistrate gave the following reasons which in my judgment are relevant to the above issue:

a. The appellant did not know the identity of the prospective buyer and the terms of the proposal.

b. The appellant was aware of the longstanding shareholders’ dispute of CYF.  He also knew that it concerned allegations of embezzlement and dispute in the ownership of shares.  He could not have thought that share trade of CYF was possible without resolving the ownership dispute.

c. At the time of the offence, the civil proceedings[42] initiated by Luck Continent in relation to Yung and Cheng were concluded.  The other civil actions[43] were adjourned pending the outcome of the DC trial.  Another case was under mediation.[44]  The other case involving Kingbox (Asia) Ltd and Yung was irrelevant.  At the time of the offence, PW1 was only involved in the DC trial.[45]

d. In the light of the fact that CYF was a publicly listed company, none of the other civil proceedings could have been settled by buying out of shares.

61.  The above reasons demonstrated that the appellant, or the party behind him, could not have mistaken the status of other civil proceedings.  In fact, the learned magistrate had discussed this issue in her judgment[46]. I agree with her reasoning.  In my view, it was not a coincidence that the appellant specifically mentioned ‘the case on 6 February’ or ‘the court hearing next week’, couple with the repeated emphasis on having the discussion before the hearing next week, he must have the DC trial in mind.

62.  I do not accept this ground of appeal.

d) Wrongly reject the defence evidence

63.  Mr Wong, SC, criticized the learned magistrate for rejecting the evidence of DW3.  He pointed out that the prosecution only challenged DW3 on the basis that his memory was not reliable, not that he was not credible.  It was not up to the learned magistrate to find DW3 not credible.  This went beyond the prosecution case.

64.  I cannot follow this argument.  The learned magistrate was not bound by the stance of the prosecution.  She could always consider all the evidence before deciding whether a witness was credible.

65.  Mr Wong, SC, further argued that since the learned magistrate had rejected the evidence of the appellant and other defence witnesses, she could not reject DW3’s evidence on the ground that it was inconsistent with the evidence of the others.

66.  In my view, where two witnesses are inconsistent, a magistrate can reject both on the ground that neither of them is credible.  It is illogical that a magistrate has to accept the evidence of one witness before rejecting another on the ground of inconsistency.  In the present case, apart from finding that the defence witnesses were inconsistent with each other, the learned magistrate also found that their evidence was contrary to common sense as set out in paragraph 30 above.

67.  Mr Wong, SC, pointed out that it was reasonable for DW3 to ask the appellant about the telephone conversation as there was crossover between their businesses.  He also pointed out the evidence why DW3 could recall the telephone conversation.  Mr Wong, SC, argued that all these were contrary to the learned magistrate’s finding.

68.  The learned magistrate commented that as Samsung Securities was closing down, there was no reason for DW3 to enquire about the telephone conversation.  This finding was consistent with the evidence of DW3.  He was preoccupied with other matters.  The following was his response during cross-examination:

“Q: But there is no reason why you should (ask), is there, as it’s not your business?

A: I was not listening in detail, but there is a great overlap between our businesses, but I was preoccupied at the time by packing my office as we’d just been told the business was closed, so there were a lot of other things on my mind.”[47]

69.  Nothing in this answer showed that the telephone conversation could touch on their business.  DW3 was not paying any attention.  In fact, one of the main reasons that the learned magistrate rejected DW3’s evidence was that DW3 could not remember the language used by the appellant during the phone conversation.  I cannot say she erred in her finding.

70.  Mr Wong, SC, further pointed out that DW3 and the appellant continued to carry on their business with a former client of Samsung Securities.  DW3 only found out in May 2012 that the appellant could not leave Hong Kong because he was charged.  The appellant further explained to DW3 that it was in relation to a favour he had been doing for his godfather.  This enabled DW3 to recollect the telephone conversation.  The cross-examination of DW3 was as follows:

“Q: More than three months, yes. So you were asked to recall almost an irrelevant conversation, very short conversation which happened back in January 2012?

A: My specific connection to remembering events in January is because I asked Paul in May of last year why he was not attending meetings in Malaysia with me to meet with a client that I had at Samsung, who he had spent a lot of time with before.

Q: And yes?

A: And had neglected to visit since the closure of Samsung…

Q: So you discussed this phone call with him then, did you?...

A: I asked him why he had not shown interest in coming to the client because he had previously been only too willing to go to Kuala Lumpur for these meetings. He then explained to me that he was unable to travel because he’d been charged with perverting the course of justice in relation to a trial, and he had his ability to travel taken away from him.

Q: Yes. And how did that then connect to the phone call on 31 January?

A: He further explained that it was in relation to a favour he had been doing for his godfather, and then I made the connection to the call at the end of January.

Q: You made the connection?

A: Yes. I asked him if it was in relation to the same Datuk that he had had a call with at that time.”

71.  The above evidence did not show that DW3 and the appellant continued business with a former client.  At most, it only showed that the appellant had not visited DW3’s client since the closure of Samsung Securities.

72.  The evidence set out in paragraphs 68 to 70 demonstrated that initially DW3 did not pay any attention to the telephone conversation, he could only recall several months later when the appellant mentioned the detail to him again.  The circumstances under which DW3 recall the telephone conversation were most unsatisfactory.  The learned magistrate could not be criticized in rejecting DW3’s evidence.

73.  Having said so, even accepting DW3’s evidence, it could only prove that the appellant said he was doing his godfather (DW2) a favour.  There was a deal but nothing was known about its nature.  I do not think DW3’s evidence could advance the defence case.

CONCLUSION

74.  Having considered the above and applying the objective test, I am sure that the appellant’s conduct from 31 January 2012 to 6 February 2012 has a tendency to pervert the course of justice.  I am also sure that the appellant had the intent.  I agree with the learned magistrate’s conclusion.  The appeal against conviction is dismissed.

DISCUSSION ON THE GROUNDS OF APPEAL AGAINST SENTENCE

75.  The learned magistrate thought that this was a serious case as the DC trial involved charges of conspiracy to defraud and money laundering.  The defendants were senior management officers of a listed company and there was breach of trust.

76.  She pointed out that any attempt to pervert the administration of justice was an extremely grave matter.  The fact that the primary offence was a minor matter was irrelevant.[48]

77.  She reiterated that there was an offer of financial reward by a proposal to purchase PW1’s shares in CYF.  The proposal was understood to come from Chinese Ministry of State Security.  The learned magistrate thought this was an implied threat which Mr Wong, SC, agreed during the appeal hearing.  This made the case more serious than AG v Yeung Sau Shing [1981] HKC 129 which she considered in detail.

78.  In Yeung Sau Shing, the appellant offered money to the victim for not giving evidence against his friend concerning an incident of assault.  The appellant was initially imprisoned for two months.  On an application for review, the Court of Appeal sentenced the appellant to 9 months’ imprisonment giving some remission because of the sentencing policy [49]. In fact, there was no agreement as to the proper sentence at first instance but the Court of Appeal adopted the lowest view of 12 months’ imprisonment.  However, the majority of the Court of Appeal thought that the starting point should be considerably higher.

79.  Having considered the authorities, the learned magistrate sentenced the appellant to 18 months’ imprisonment.

80.  Mr Wong, SC, submitted that there was no evidence as to what PW1 was asked to do.  The learned magistrate did not explain the meaning of the idiom.  It was possible that PW1 was asked to leave out a trivial part of his evidence.  In fact, Cheng was only imprisoned for 5 months in the DC trial.  It showed that the criminality in the DC trial was minor.  Mr Wong, SC, argued that the learned magistrate should not compare this case with Yeung Sau Shing.

81.  The meaning of the idiom ‘手下留情’ is clear. PW1 understood it to mean ‘to be lenient or ‘show leniency’.  The learned magistrate adopted this interpretation when she accepted the PW1’s evidence.  During the appeal hearing, Mr Wong, SC, did agree with this interpretation.

82.  The appellant had not argued during the trial or the mitigation that PW1 was only asked to leave out a trivial part of his evidence.  In the absence of any evidential basis, it was not for the learned magistrate to speculate.  She was entitled to interpret the case according to common sense.

83.  As to the low criminality reflected by the sentence of Cheng, I agree with the learned magistrate that it is not relevant.  The Court of Appeal stressed this point in R v Huthart [2002] 4 HKC 692 at 697I:

“…That the primary offence, namely a domestic scuffle, was a minor matter is in our view irrelevant. Any attempt to prevent the administration of justice taking its due course is an extremely grave matter. In those circumstances, we think an appropriate starting point would have been two years’ imprisonment…” (my emphasis)

84.  That said, the offences in the DC trial were conspiracy to defraud and money laundering, these are serious offences by any standard.  During the appeal hearing, there was a discussion on whether the nature of the primary offence should have a bearing on the sentence of pervert the course of justice.  The authorities cited to the learned magistrate did not consider this issue specifically.  The closest comment was in Yeung Sau Shing, Cons JA stressed at page 132C of the judgment that:

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

It is not clear whether the seriousness of the primary offence should be considered.

85.  In R v Tunney (Reynolds) [2007] 1 Cr. App. R. (S.) 91, at page 568, the Court of Appeal in England set out the relevant factors in sentencing pervert the course of justice:

“In our judgment the sentence which is appropriate for offences of this nature depends effectively on three matters…The particular factors which the court must have regard to are, first, the seriousness of the substantive offence to which the perverting of the course of justice relates…The second matter which the court must have regard to is the degree of persistence in the conduct in question by the offender. Thirdly, one must consider the effect of the attempt to pervert the course of justice on the course of justice itself…”

86.  In Tunney, the appellant pleaded guilty to doing an act intended to pervert the course of justice.  He made a false statement of alibi for the defendant who was subsequently convicted of manslaughter.  He did not give evidence in accordance with his statement.  His sentence was reduced from three years to two and a half years’ imprisonment.  The Court of Appeal found that the offence in question, murder or manslaughter, was at the most serious end of the spectrum, the appellant had shown a degree of persistence but the attempt to pervert was unsuccessful.

87.  I agree with the principle in Tunney.  In my judgment, the nature of the primary offence is relevant in sentencing an offence of pervert the course of justice but a minor primary offence does not necessarily attract a lower starting point.  The learned magistrate was correct in taking into consideration the serious nature of the offences in the DC trial.

88.  The gravamen of this offence is that ‘it strikes at the very heart of the system by which law and order is enforced in society.  If it were to succeed to any appreciable extent, it would completely destroy public confidence in that system.’[50]  The circumstances of each case vary. It may not be helpful to compare the facts of other cases.

89.  Mr Wong, SC, criticized that the learned magistrate had not given sufficient consideration to the personal circumstances of the appellant.  He would not be able to continue his career in the finance and banking sector.  His family would suffer financially.  He might lose the last chance to visit his father who had terminal cancer.

90.  In Yeung Sau Shing, Cons JA had this to say in relation to the personal circumstances of an appellant in this kind of offence, at page 132B:

“…Strong measures are needed to preserve that confidence and consequently, the personal circumstances of an individual appellant carry less weight in this case than they would in relation to some other crimes.”

91.  I am sure the learned magistrate had considered the personal circumstances of the appellant[51]. Although she found no violence, she reiterated that there was financial reward offered and an implied threat by mentioning Chinese Ministry of State Security. I agree that the primary offences in the DC trial are serious offences.  The appellant had been quite persistent in putting pressure on PW1 from 31 January 2012 to 6 February 2012.  There were at least two phone calls and five text messages.  The last one was sent at 2049 hours in the evening of 6 February 2012, the first day of the DC trial.  I have no way to assess whether PW1 came up to proof but I would be ready to assume so.  This means that the appellant was not successful in perverting the course of justice.

92.  Taking all these into consideration, I do not think the sentence of 18 months’ imprisonment after trial is manifestly excessive.  I dismiss the appeal against sentence.