HKSAR v. KANJANAPAS CHONG KWONG DEREK AND OTHERS

CACC 248/2006
CACC 140/2007
CAAR 8/2006

CACC 248/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 248 OF 2006

(ON APPEAL FROM DCCC NO. 298 OF 2005)

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J U D G M E N T

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TABLE OF CONTENTS

Hon Ma CJHC 

1.  Tang VP will give the first judgment.

Hon Tang VP :

Introduction

2.  The events which led to these applications for leave to appeal took place between Friday, 9 July 2004 and Friday, 16 July 2004.

3.  The 1^st applicant (“Derek”) was the chairman of Semtech International Holdings Limited (“Semtech”).  He was the 1^st defendant at trial.  Miss Wong Pui-sze, Becky (“Becky”) was his secretary.  She was PW1 at trial.

4.  On 9 July 2004, 9 persons including Derek and Becky were arrested by the ICAC.  William Lau, the manager and controller of Semtech was also arrested.

5.  The 2^nd applicant (“Mandy”), the 2^nd defendant at trial, was the lover of Derek, and Becky was like a sister to her.  Mandy was a shareholder and director of Ever Brilliant Consultants Ltd (“Ever Brilliant”), which operated a beauty salon called Eden.  The capital was provided by Derek.  Becky was given 30% of the share capital in Ever Brilliant.

6.  The 3^rd applicant Andrew Lam, (“Lam”), the 3^rd defendant at trial, is a solicitor and a partner of Messrs Andrew Lam & Company.  He is an experienced criminal lawyer.  Lam was instructed on 13 July 2004 by Derek to act for him in the Semtech investigation.

7.  The 4^th applicant (“Egan”), the 4^th defendant at trial, is an experienced barrister specialising in criminal work.  He was instructed by Messrs Massie & Clement, who acted as solicitors for Mandy in her attempt to gain access to Becky which culminated in an application by Mandy for a writ of habeas corpus for Becky.

The charges

8.  The applicants were charged with the following offences:

“1st Charge (against D1 to D4)

Statement of Offence: Conspiracy to pervert the course of public justice, contrary to Common Law and sections 159A and 159C of Crimes Ordinance, Cap. 200.

Particulars of Offence: Kanjanapas Chong-kwong, Derek also known as Wong Chong-kwong, Chui Man-si also known as Mandy Chui, Lam Ping-cheung also known as Andrew Lam, and Kevin Barry Egan, between the 11th day of July 2004 and the 17th day of July 2004, in Hong Kong, knowing that Wong Chong-kwong and others had been arrested by the Independent Commission Against Corruption (ICAC), that there was an ongoing investigation by the ICAC of Wong Chong-kwong and that criminal proceedings arising from the investigation were possible, conspired together and with Chung Cheong-kuen, Frankie to pervert the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice, namely, to obstruct and hinder the investigation and possible proceedings by seeking to gain access to Wong Pui-see, Becky, a person whom they believed or suspected to be co-operating with and assisting the ICAC in that (to investigation, with a view to ascertaining what she had said to investigators of the ICAC and influencing her against providing assistance or information to the ICAC by:

(a)  falsely representing to officers of the ICAC that certain persons represented Wong Pui-see, Becky’s interests in dealing with the ICAC and by seeking access to her;

(b)  causing to be made an application for a writ of habeas corpus (the application), in respect of Wong Pui-see, Becky, directed to the Commissioner of the ICAC when they knew or believed that she was not unlawfully detained and did not seek release from the custody of the ICAC;

(c)  submitting to the High Court of Hong Kong, in relation to the application, affirmations which they knew or believed to be false or misleading immaterial particulars; and

(d)  disseminating information and materials to journalists to publicize Wong Pui-see, Becky’s involvement in the said ICAC investigation and to falsely represent that she was being unlawfully detained by the ICAC.

2nd Charge (against D2 only)

Statement of Offence: Perjury, contrary to section 31 of Crimes Ordinance, Cap. 200.

Particulars of Offence: Chui Man-si, also known as Mandy Chui, on the 16th day of July 2004, in Hong Kong, being lawfully affirmed as a deponent, wilfully made statements on affirmation for the purposes of a judicial proceeding, namely habeas corpus proceedings in the High Court of Hong Kong, numbered HCAL 89/2004, before a person authorized by law to administer an affirmation to the said Chui Man-si, which statements were material in that proceeding and which the said Chui Man-si knew to be false or did not believe to be true, namely: -

(a)  that Wong Pui-see, Becky was a 30% shareholder and director of Ever Brilliant Consultants Ltd and was her business partner;

(b)  that in two telephone calls made by Wong Pui-see, Becky she had spoken in a faint and trembling voice and said that the ICAC had snatched her telephone from her and that she did not know where she was;

(c)  that she was worried about the well-being of Wong Pui-see, Becky because she had no close family members in Hong Kong.

Further, she omitted a material particular, namely that Wong Pui-see, Becky had assured her that she was safe and sound, and thereby sought to give the impression, which she knew not to be true, that she, Chui Man-si, had consulted solicitors and made the affirmation on behalf of Wong Pui-see, Becky because she believed her to be held against her will.

3rd Charge (against D3 and D4)

Statement of Offence: conspiracy to disclose information about the identity of a participant in the witness protection programme, contrary to section 17(1) (a) and (4) of the Witness Protection Ordinance, Cap. 564 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

Particulars of Offence: Lam Ping-cheung also known as Andrew Lam, and Kevin Barry Egan, between the 15th day of July 2004 and the 17th day of July 2004, in Hong Kong, conspired together to disclose information, without lawful authority or reasonable excuse, to journalists of the Hong Kong media about the identity of a participant in the witness protection programme.

4th Charge (alternative to 3rd Charge) (against D4 only)

Statement of Offence: Attempting to disclose information about the identity of a participant in the witness protection programme, contrary to section 159G of the Crimes Ordinance, Cap. 200, and section 17(1) (a) and (4) of the Witness Protection Ordinance, Cap. 564.

Particulars of Offence: Kevin Barry Egan, on or about the 15th day of July 2004, in Hong Kong, without lawful authority or reasonable excuse, attempted to disclose to Chow Yin-ling, Magdalene, Chief Court Reporter of South China Morning Post, information about the identity of a participant in the witness protection programme.

5th Charge (alternative to 3rd Charge) (against D4 only)

Statement of Offence: Attempting to disclose information about the identity of a participant in the witness protection programme, contrary to section 159G of the Crimes Ordinance, Cap. 200, and section 17(1) (a) and (4) of the Witness Protection Ordinance, Cap. 564.

Particulars of Offence: Kevin Barry Egan, on or about the 15th day of July 2004, in Hong Kong, on an occasion other than that referred to in the 4th charge, without lawful authority or reasonable excuse, attempted to disclose to Chow Yin-ling, Magdalene, Chief Court Reporter of South China Morning Post, and others, information about the identity of a participant in the witness protection programme.”

The trial

9.  The trial had lasted 55 days before HH Judge Fung CDJ (as he then was).  Complex issues of law and fact were involved.  The Reasons for Verdict (“Reasons”) is 173 pages long.

10.  The 1^st to 3^rd applicants were convicted of the 1^st charge.  Egan was acquitted of that charge.

11.  Mandy was the only applicant in the 2^nd charge.  That charge was concerned with her affirmation which was filed on 16 July 2004 in support of the habeas corpus proceedings in relation to Becky (HCAL 89/2004).  But because the affirmation “did not include an oath of (the interpreter) that he had interpreted the oath or affirmation to (Mandy)”, she was convicted of attempted perjury.  As the learned judge correctly pointed out:

“460. … the combined effect of sections 7 and 8 of the Oaths and Declarations Ordinance is that both the person making the affirmation and the interpreter are required to be sworn.  The oath of the interpreter is a substantive requirement for validity.”

12.  Both the 3^rd and 4^th applicants were acquitted of the 3^rd charge.

13.  Egan, the only applicant in respect of the 4^th and 5^th charges, was convicted.

14.  Derek was sentenced to 3 years’ imprisonment for the 1^st charge.  Mandy was sentenced to 2½ years’ imprisonment for the 1^st charge and 1 year for the 2^nd charge, the sentences to run concurrently.  Lam was sentenced to 4 years’ imprisonment.  Egan was sentenced to 2½ years’ imprisonment for each of 4^th and 5^th charges, the sentences to run concurrently.

15.  All the applicants have been given bail pending appeal.  Derek has absconded.  The 2^nd to 4^th applicants appeared by counsel before us.  They applied for leave to appeal against both conviction and sentence.  On 14  May 2008, Ma CJHC directed that the applications in relation to sentence should await the outcome of the applications relating to conviction.  In relation to Derek and Lam, the Secretary for Justice has applied to review their sentences under section 81A of the Criminal Procedure Ordinance, Cap. 221 (“CPO”) (CAAR 8/2006).

Background

16.  The background facts have been carefully stated by the learned judge.  My narrative is based on them.

Saturday, 10 July 2004

17.  After Derek was arrested by the ICAC on 9 July 2004, at about 8.30 am on 10 July 2004, his wife contacted Frankie Chung (PW2), a legal executive in the employ of Messrs C K Mok & Company, solicitors.  As a result Frankie Chung went to the ICAC office at about 9.30 am together with a barrister (not Egan).  They were told to wait.  It was about 6 pm that day when they were able to see Derek.  They returned to the ICAC the next morning and attended a video recording interview with Derek.

18.  Becky was given bail at 10.38 pm on 10 July 2004.  Prior to her being admitted to bail, she had given 2 non-prejudicial statements (“NPS”).  The first from 00.25 am to 4.10 am and the second from 10.56 am to 10.30 pm.  The second NPS contained matters incriminating Derek.  At 10.38 pm, Becky was given bail until 5 pm the following day on her own recognizance.

19.  The learned judge recorded that Becky had signed a note dated 10 July 2004 stating that:

“(1)   she was voluntarily giving information to assist the ICAC;

(2)     she understood that she was still a subject of investigation herself; and

(3)     she consented to the ICAC officers accompanying her and staying the night at her home.”

20.  On the night of 10 July 2004, Becky stayed at her home, accompanied by 2 female ICAC officers.  Becky’s mobile phone had been taken from her when she was arrested but it was returned to her when she was released on bail.  When she turned it on, Dale Ko, an ICAC officer, saw a list of missed calls appearing and Becky told him that some of the calls were from Mandy. 

Sunday, 11 July 2004

21.   Between 1.35 pm and 4.15 pm, Becky went to the ICAC to discuss the Witness Protection Programme (“WPP”) for the first time.  At 4.55 pm, she was given bail to 16 July 2004.

22.   At about 1.15 pm, there was a telephone conversation between Becky and Mandy, which had been monitored by the ICAC.  The learned judge found that during this conversation, Becky said to Mandy that “she was safe and sound” ‘平安無事’ (literally meaning ‘safe and no incident’).”

23.   At 6.15 pm, Becky and the ICAC officers arrived at an ICAC safe house.  ICAC officers gave Becky another mobile phone SIM Card (“ICAC SIM card”).  She was advised to use the ICAC SIM card to contact her family and friends, and not to use her own SIM card to avoid contact with people involved in the case.  Becky inserted the ICAC SIM card into her mobile phone and called her family members.  Although Becky’s own SIM card was monitored by the ICAC, the ICAC SIM card was not monitored.  Sometime between 6.15 pm and 7.29 pm on 11 July 2004, Becky forwarded incoming calls to her own SIM card to the ICAC SIM card.

24.   At 7.29 pm, Becky’s phone rang and she saw Derek’s name on the caller display.  She said ICAC officers also saw the caller display and she was embarrassed and she switched off the phone without answering because the ICAC officers had advised her not to speak to people involved in the case.

25.   Becky then inserted her own SIM card back into the phone in order to cancel the call-forwarding to the ICAC SIM card.  Becky said that she had voluntarily surrendered her own SIM card to the ICAC officers later in the night of 11 July 2004.  She said she did so because she was embarrassed when the ICAC saw Derek’s name on the caller display.

26.   After Derek was released on bail, between 4.00 pm and 8 pm on 11 July 2004, he spoke to Frankie Chung on the telephone.  He told Frankie Chung that two of his employees namely William Lau and Becky had been arrested by ICAC and he was very worried about them.  He asked Frankie Chung to see them.  Frankie Chung said that he would ask another solicitor, Peter Lai to go and see William Lau and Becky.  The ICAC had standing instructions regarding visits by lawyers claiming to represent a person in ICAC custody which required ICAC officers first to inform the person that a lawyer was present and then ask whether that person wanted to see the lawyer.  Peter Lai was able to see William Lau but not Becky.  In fact, Becky was not told by the ICAC officers that Peter Lai was there to see her because the ICAC officers did not think they were obliged so to inform her as the standing instructions only applied to detained persons.  Presumably, Peter Lai was able to see William Lau because he was a detained person and the standing instructions applied to him.

Monday, 12 July 2004

27.   Between 7 am and 8 am on 12 July 2004, Becky went back to the Semtech office to collect her belongings.  When doing so, she took a spare stored valued SIM card (“Semtech SIM card”) without telling the ICAC officers who were waiting for her at the lift lobby.  She said she took the Semtech SIM card because she wanted to call Mandy to find out about Derek and Mandy.  She was concerned about Mandy as a friend.  She felt the ICAC SIM card number might be tapped, so she wanted to use the Semtech SIM card instead.  She said she did not tell the ICAC officers about the Semtech SIM card because it never crossed her mind to do so.

28.   At about 2.30 pm on 12 July 2004, Derek went to Frankie Chung’s office.  According to Frankie Chung, at that meeting he told Derek that as Becky had been with the ICAC for 48 hours, it was possible that Becky was in the process of becoming a prosecution witness.  According to Frankie Chung, Derek said he needed to look for a “famous barrister” to defend him.  Derek mentioned Mr Lawrence Lok, SC.  He even mentioned Lam but Frankie Chung told him that Lam was not a barrister and C K Mok & Company could not therefore engagehim.

29.   William Lau was released in the afternoon of 12 July 2004.

30.   At about 4.30 pm on 12 July 2004, William Lau went to Frankie Chung’s office, Derek was there.  According to Frankie Chung, Derek told him that:

“Becky Wong was a fragile person.  He worried that under pressure, anything that he or she did not do, he or she would say he or she did.”  Transcript 340F.

31.   In the evening of 12 July 2004 whilst at the ICAC safe house, Becky went to the toilet to call Mandy “without being tapped or overheard”.  Although there were a total of 9 calls between 10.31 am and 10.51 am, there were only 2 main conversations, the first of which lasted 344 seconds and began at 10:40:46.

32.   This is what the learned judge said about these two conversations:

“75.   In the first main conversation, Becky Wong said she told D2 that she was hiding in the toilet and she had to speak softly as it was not convenient to talk. Becky Wong said in evidence that she talked secretly in the toilet because she had given two non-prejudicial statements. D2 asked whether ‘they’ were still with her. D2 asked her whether she was OK and Becky Wong said she was OK. ‘無嘢’ (literally meaning ‘nothing’). And further she added she was safe and sound ‘平安無事’ (literally meaning ‘safe and no incident’).

76.    Becky Wong told D2 to tell D1 not to use his 2 mobile numbers starting with ‘6’ and ‘9’ as the ICAC had known about them. Becky Wong agreed it was wrong for her to alert D1, but she did so out of kindness as she did not want D1 to get into bigger and bigger trouble (though she did not say this to D2).

77.    Shortly after the 5- minutes call, Becky Wong called D2 again and D2 called back for 1 minute (Call 111A). This was the second main conversation. Becky Wong said the purpose of this call was to ask D2 to say sorry to the boss, that is, D1, on her behalf. D2 then asked her what have she said to them. Becky Wong told D2 that she did not say anything that D1 could not explain himself away, except about market manipulation and illegal money, as she felt the ICAC had tapped the phones and there was no way but to say it. Becky Wong said she did not mean to tell D2 what she had told the ICAC, but as D2 had asked her, she told D2. Becky Wong said at that time, she had not given it the thought whether it was unwise to do so.

78.    Becky Wong said she did not hang up hurriedly. But after cross-examination on her witness statement, she agreed to the suggestion.

79.    After the second main conversation with D2, Becky Wong inserted the ICAC SIM card back and hid the Semtech SIM card inside the mobile phone. She said she did not intend to call D2 further as she had already found out the situation of D1 and D2.”

33.   On the same day, at 4.20 pm, there was an SMS message to the Semtech SIM card from Mandy.  The message was:

“B. request to call chung lawer at onec(sic.) 94918232. M”.

It is significant that at this time, Derek was on the phone with Mandy.  The clear inference is that he was instrumental in the message being sent.

34.   However, Becky did not see this message until the midnight of 13 July 2004.

Tuesday, 13 July 2004

35.   Earlier, on 12 July 2004, a Witness Security Panel (“WSP”) meeting had been convened to discuss the induction of Becky into the WPP.  When dealing with the risk assessment, the minutes recorded:

“Becky is a key witness who can give evidence against Wong (that is, D1) and his associates.  Soon after Wong was released on bail, he had asked his girlfriend Mandy to approach Becky.”

36.   At 2.25 pm on 13 July 2004, Becky went to the ICAC headquarters and signed the Memorandum of Understanding (“MOU”) for the WPP.

37.   On the same day, Derek and William Lau visited Lam at his office at about 4 pm.  Presumably, it was during that meeting that Lam was retained by Derek to act for him in the Semtech investigation.  Mandy went to Lam’s office at 5.39 pm (according to the lift CCTV) and stayed there until they all went to the offices of Messrs Massie & Clement at the Chekiang First Bank Building.  The lift CCTV showed that they arrived there at 5.59 pm.  Mr Richard Clement, PW5 (“Clement”), a partner of Messrs Massie & Clement, said that he saw the 1^st to 3^rd applicants and William Lau at about 6 pm.  He said Lam had referred Mandy to his firm as a client because of a potential conflict of interest.  According to the lift CCTV footage, Derek, Lam and William Lau left Messrs Massie & Clement’s office at 6.08 pm.

38.   Clement said his partner Mr John Massie (“Massie”) had spoken to him earlier and left him a brief note of the case.  Clement’s evidence was that Massie told him that the instructions had come from Lam.  Massie was due to go on a month’s leave and could not take up the case.  The CCTV footage showed that Massie went down the lift of his office at 6.07 pm.  The note was produced at trial, but Massie did not give evidence.  There was no evidence that Massie saw Derek, Mandy or Lam on 13 July 2004.  I will proceed on the basis that Massie had been contacted by Lam on the telephone.  According to the learned judge:

“94.   The note of Mr Massie recorded the name of Becky Wong and ‘secretary to chairman’, ‘put under protection’. Mr Clement said at that stage, he did not quite know the link of Becky Wong with the Chairman of Semtech as he did not realise the company was Semtech. Mr Clement thought D2 was in some sort of relationship with D1 for them to turn up at his office together, but at that stage, he did not know that they were boyfriend and girlfriend.

95.    Mr Clement said D3 left with D1 and the others after a few minutes. D3 never mentioned anything like protective witness. D3 introduced D2 and let Massie & Clement act independently. Mr Clement said he saw nothing sinister about the referral. The lift CCTV footage shows D1, D3 and William Lau went down the lift at 6.08 pm.”

39.   The note also included the statement “write to ICAC” so presumably it was Massie’s understanding that their firm was to write to the ICAC.  Such instructions presumably were received between about 4 pm and 6 pm on 13 July 2004.

40.   Mandy was interviewed by Clement and Raymond Lam (PW6), a trainee solicitor, who acted as interpreter between Mandy and Clement.  According to the learned judge:

“98.   Mr Clement said D2 told him through Raymond Lam that her business partner and friend Becky Wong was arrested on Friday, and D2 had a number of calls with Becky Wong on Sunday morning (that is, 11 July) and Monday morning (that is, 12 July) and Becky Wong spoke in a quiet voice. D2 believed Becky Wong was in the custody of the ICAC, and D2 was concerned as she felt Becky Wong did not want to be where she was. D2 asked him to gain access to Becky Wong, and if that proved impossible, to do whatever necessary to get her released from the ICAC, and if court action were involved, so be it. Mr Clement could not remember whether the subject of court proceedings was first raised by D2 or himself, but he was pretty sure that there were instructions from D2 to initiate court proceedings if the attempt to see Becky Wong at the ICAC failed.

99.    Mr Clement wrote down ‘protective custody’ (in inverted commas) in his notes. He thought if Becky Wong were arrested on Friday (that is, 9 July), and there did not seem to be any charge by Tuesday (that is, 13 July), and if she were still with the ICAC, it would have to be protective custody. He was also influenced by the words ‘put under protection’ in Massie’s notes. However at that stage, Mr Clement thought Becky Wong had probably been released and no longer with the ICAC but she just did not want to see anybody. Hence, he put ‘protective custody’ in inverted commas.

100.  Mr Clement told D2 through Raymond Lam that he would draft a letter to send to the ICAC on the next day to request access to Becky Wong.”

41.   Clement then opened a file for Mandy in the matter of Becky.  He also drafted a letter to be sent to the ICAC.  That letter was moderate in tone.  After stating that Messrs Massie & Clement had been approached by Mandy, “a friend of (Becky)”, it said:

“We are instructed that (Becky Wong) is now in ‘protective custody.’  Ms Chui is of the view from talking to Ms Wong that she wishes to be released.

Can you please pass a copy of this letter to Ms Wong and ask her to contact our Mr Clement by telephone if she wishes to take legal advice.”

42.   Clement then left for home.  Whilst he was on the MTR, he received a call from Egan from the Foreign Correspondents’ Club (“FCC”).  This is what the learned judge said:

“103. … Mr Clement understood D4 to be saying that D3 was a bit agitated, as apparently, D2’s girlfriend was held by the ICAC, and Massie & Clement should be down there hammering on the door of the ICAC, but all he proposed to do was to just write a letter. Mr Clement took it that his initial approach to write a letter was disagreed by D3. D4 told Mr Clement that he had instructions from D2 to arrange for a legal visit to the ICAC that night to find out what was happening to Becky Wong. Mr Clement said he was on his way home and he had to ring the office to see if that could be arranged. Having spoken to Raymond Lam on the phone, Mr Clement rang D4 back and said it was all right.”

43.   Then, at about 7.45 pm, Raymond Lam and Egan arrived at the ICAC reception.  Egan asked to see Becky.  Daphne Lim and Matchy Mak (PW30), Assistant Investigator, went to reception.  They overheard Egan’s speaking in his mobile phone:

“Andrew, I’m talking to the ICAC officers.  Don’t call me.  I’ll call you.” 

After hanging up, Egan said:

“It’s Andrew Lam Ping-cheung.  He is not patient.”

“110. Daphne Lim said D4 requested immediate access to Becky Wong. D4 said he was acting on the instructions of D2, and D2 and Becky Wong were partners in a beauty salon with Becky Wong owning 30% shares, and D2 was not able to reach Becky Wong. D4 said Becky Wong was arrested by the ICAC and she had been detained for over 48 hours. If he were not given immediate access to Becky Wong, he would make a report to the police and to apply to the High Court for habeas corpus.”

44.   Daphne Lim then rang one of the officers who was accompanying Becky at the ICAC safe house and asked him whether Becky had requested to see a lawyer and she was told that:

“112. … nothing about that was mentioned.  Daphne Lim said normally when a lawyer requested to see a detained person, the person would be asked whether to see the lawyer.  However, she did not inform Stanley Wu or Becky Wong that D4 had come to see her, because Becky Wong was not a detained person, and she had the right to see any lawyer or to go at any time.

……

115.  Then Daphne Lim and Matchy Mak went back to the reception. Daphne Lim said to D4: ‘Becky Wong is not in the ICAC. I do not have Becky Wong with me. You can take whatever action you like.’ When D4 heard this, he raised his voice and said: ‘Of course Becky Wong is not here. She is in some other place. You have placed her in a safe house.’ D4 then said D2 had received a phone call from Becky Wong and Becky Wong told D2 that she was in the ICAC custody and she wanted to be released. Daphne Lim said at that stage, she did not know that Becky Wong and D2 had made contact on the phone. She had no access to the telephone intelligence. She said to D4 that she did not believe D2 had received phone call from Becky Wong.”

45.   What happened next is that Egan then wrote a letter of complaint to the Head of Operations of the ICAC, complaining that he had been denied access to Becky.  In this letter (“Egan’s complaint letter”) Egan said:

“(Becky) was adamant that she was being detained against her will and that she wished to leave ‘protective custody’”.

Egan’s evidence was that he used the expression “protective custody” sarcastically.

46.   Egan then went to the Central Police Station and made a report of false imprisonment.  That is highly unusual but might be explained by Egan’s deep mistrust of the ICAC.

47.   As noted earlier in para. 34 above, Becky saw the SMS message to call “Chung lawyer” at about midnight on 13 July 2004.  She then called Frankie Chung.  This is what the learned judge said about that conversation:

“133. Becky Wong said she asked for lawyer Chung and said D2 asked her to call. Frankie Chung was the person Becky Wong called. Becky Wong said lawyer Chung told her to say she knew him. In fact, she did not know any lawyer Chung but she did not respond. She said lawyer Chung said she had the right to approach a lawyer. He told her to ring him during office hours the next day. He suggested her to make a request to the ICAC to call him, and told her to pass this telephone number to the ICAC and she would be able to contact him.

134.  Becky Wong said she would not have called Frankie Chung if she had not got the SMS from D2. She never told lawyer Chung she was kept by the ICAC. She never told him she wanted any help or lawyer. She never gave him any legal instruction nor asked him to apply for habeas corpus on her behalf. She never wanted to leave the ICAC. She never rang Lawyer Chung again.”

135.  According to Frankie Chung, he said he received a short call first at midnight of 13/14 July. A lady asked whether he was Ben, he said wrong number and she hung up. A few minutes later, the lady rang again. She asked whether he was Mr Chung and Frankie Chung said yes. The lady said Mandy asked her to ring him and she asked him whether he was from Mr Wong’s place. Then it dawned on him that Mandy was D1’s friend, who had passed him the money for D1’s bail, and Mandy had been to his office on 13 July. Frankie Chung asked the caller whether she was Wong Pui-see and she said yes. Frankie Chung asked ‘Are you with those people now?’ (without mentioning ICAC) and she said no.

136.  Frankie Chung said Becky Wong never told him she was safe and sound. Since she had called him at midnight, and her voice was faint and unsteady, and she spoke with hesitation, he thought she was frightened, and she needed to see a lawyer. Frankie Chung said although Becky Wong did not say she was with the ICAC, he believed she was so, probably he was confused as D1 had said so. Frankie Chung said: ‘Do you need me to see you tomorrow? It is not safe for you to see other people. It is safe to see me. If someone obstructs you to see me, you just say you know me. If they don’t allow you to see me, you just lodge a complaint.’ Frankie Chung said he taught her to lie to the ICAC that she knew him before so that she could see him. He told her that he would wait for her call the next morning, and he would go and see her, and the lady said all right. Frankie Chung said to her: ‘No matter what, I wait for your call. As soon as I get your call, I would go to see you.’ He said Becky Wong did not respond and said something neither here nor there. Becky Wong never called him again.

137.  Frankie Chung said that in fact he did not know Becky Wong, and had never met her, and his firm had never acted for her, but he taught her to say she knew him because he thought that would help her. Frankie Chung said Becky Wong never asked him to go to see her, and maybe he had misunderstood it because he said he was going to see her and she never refused, and when people rang him in the middle of the night, it was usually a request for legal visit.”

Wednesday, 14 July 2004

48.   Shortly after his conversation with Becky, Frankie Chung told Derek of his conversation with Becky.  He told Derek that he had told Becky that he would go to see her at the ICAC provided that she gave him a call.  Frankie Chung and Derek met sometime after 1 am.  This is the learned judge’s summary of the evidence:

“139. Sometime after 1 am on 14 July, D1 arrived at the downstairs of Frankie Chung’s home.  D1 suspected his car was tapped, and they boarded Frankie Chung’s car.  Frankie Chung asked D1 why Becky Wong had called him.  D1 told him that Becky Wong had picked up a SIM card during the search of the office, and she called D2 for help.  And when Becky Wong was having telephone conversation, her phone was snatched by the ICAC.  D1 also said D4 went to the Central Police Station to report the missing of Becky Wong.  D1 said he had formed a legal team including D3, and D3 would hold a press conference for him, and it pleased D1 as he could vent his grievance against the ICAC.  Frankie Chung feared that the matter might get bigger and bigger.  He told D1 to be careful as the ICAC people were narrow minded.  D1 told Frankie Chung that if Becky Wong rang him in the morning, he should go with D4 to see her.  D1 gave Frankie Chung the name card of D4.

140.  While inside the car, D1 asked if Frankie Chung could go to the High Court to apply for bail for Becky Wong.  Frankie Chung explained generally that the procedure was habeas corpus, not bail.  D1 also asked Frankie Chung what was the specialization of Massie & Clement, and he said personal injuries litigation.  D1 then said that they were no good.

141.  D1 said he would be busy dealing with enquiries from the stock exchange.  He would hand the matter over to D2 to handle.  After this meeting in the car, Frankie Chung said he never saw D1 again.

142.  The record shows that at 1.20 am on 14 July, D1 called D4 for 0.1 minute (Call 175).”

49.   On 14 July 2004, the Sing Tao Daily published a report on the Semtech case with the subheading “Barrister alleges the ICAC of unlawful detention”.

50.   At 8.45 am on 14 July 2004, Daphne Lim and Matchy Mak arrived at the safe house.  Daphne Lim asked Becky whether she wanted to join the WPP and Becky said yes.

51.   According to the learned judge:

“148. At 9.13 am, D1 rang Frankie Chung for 0.2 minutes (Call 185), at 9.16 am, D1 rang Frankie Chung for 0.5 minutes (Call 187) and at 9.27 am, D1 called Frankie Chung for 0.4 minute (Call 190).  Frankie Chung said D1 called to ask him to accompany D4 to pay legal visit for Becky Wong.  Frankie Chung asked D1 why he did not ask D3 to do it.  Then D1 said:  ‘As I ask you to do it, you just do it.’  Frankie Chung told the court that he made excuses because he did not like the idea of a press conference, and he suggested D3 to do it because D1 had told him that D3 was going to hold a press conference for him.  Further, Frankie Chung said he had a case in the District Court that afternoon and he still had to sort out the papers.

52.   At about 9.30 am on 14 July 2004, Frankie Chung after speaking to Derek on the phone, called Egan.  He did not tell Egan that Derek had just spoken to him.  However, he told Egan that Becky had contacted him and that she wanted to get away from the ICAC.  He asked Egan to go to see Becky at the ICAC.  They then made an appointment to meet outside the ICAC at 11 am.

53.   Between 9.30 am and 10 am, Clement returned to his office.  He was shown a copy of Egan’s complaint letter by Raymond Lam.  He then received a call from Egan who told him that he had instructions from C K Mok & Company to go to the ICAC.  Egan told him that Frankie Chung had spoken to Becky the night before and that Becky wanted to see Frankie Chung.  According to Clement, Egan also said that with his going to the ICAC:

“he thought that would probably be the end to it but if it needed an application to court then it was likely that we would be involved again.”  Clement, T503Q.

If an application had to be made to the court, he asked whether Messrs Massie & Clement would still have the instructions to move ahead.  Clement said that Egan did not specify the application but he assumed that it was habeas corpus.  He told Egan that on the basis of the conversation with Mandy the night before, the instructions were (1) to see Becky at the ICAC, and (2) if that did not work, to get her released from the ICAC.  The learned judge said:

“153. Mr Clement said he was not concerned that C K Mok & Company appeared as C K Mok & Company’s client was Becky Wong, and he was acting for D2. He thought the earlier conversation between Becky Wong and D2 was a bit equivocal. But now Becky Wong had told Frankie Chung that she wanted to see him, he thought that was the end of the matter for Massie & Clement. As to why Massie & Clement was asked to do the habeas corpus, he thought maybe his firm was more versed in administrative law list.”

54.   Egan and Frankie Chung’s visit to the ICAC on 14 July 2004 met with no success.  They were told by Patrick Ho that Becky was not at the ICAC and that Egan could do whatever he liked and it was entirely up to him:

“159. Frankie Chung said Patrick Ho’s attitude made D4 very angry. D4 rang Mr Ryan and said all he wanted was access to Becky Wong to ascertain her status. The record shows that D4’s mobile rang Mr Ryan’s office at 12.07 pm. Frankie Chung said D4 argued on the phone, and then D4 hung up. After D4 rang Mr Ryan, Frankie Chung told D4 that Becky Wong was previously known to him, and she wanted to get away from the ICAC. Frankie Chung explained to the court that he lied to D4 in order to appease the dispute between D4 and Mr Ryan. D4 then told him to go to Massie & Clement to make an affirmation. Frankie Chung left the ICAC at 12.30 pm.”

According to Ryan:

“168. … D4 told him on the phone that he was given the run around by the ICAC, and said he would likely be making an application for habeas corpus.”

Ryan told Egan:

“168. … Rebecca Li was coming over to see him, and asked D4 to call back later.”

The meeting between Ryan and Rebecca Lai and other ICAC officers lasted about 1½ to 2 hours.  He was told that Becky was included in the WPP.

55.  Some time after 12 pm on 14 July 2004, Dale Ko learnt from Becky that she had contacted a lawyer called Chung.  He was then instructed to take a statement from Becky by Patrick Ho who mentioned that there might be a habeas corpus application.  According to the learned judge:

“176. … Dale Ko said he was told to cover the topics whether Becky Wong had contacted any lawyer, or whether she asked other to find a lawyer or to apply to court for a habeas corpus.  Dale Ko was not told that D4 had been to the ICAC.”

56.  Between 2.15 pm and 4.30 pm on 14 July 2004, Dale Ko took a statement from Becky on the habeas corpus matter.  The learned judge said:

“178. Becky Wong told the court that the ICAC officers told her that someone had applied for habeas corpus on her behalf. She was upset and cried when she heard about it. The ICAC officers comforted her. In her mind, she queried whether she had created all the trouble. She thought of withdrawing from the WPP, but she did not tell the ICAC.

179.  Becky Wong said the ICAC officers asked whether she had talked to lawyer Chung and she said yes. The ICAC officers were not pleased, but they did not have any particular response. However, the ICAC officers had not asked whether she had another SIM card yet at that stage.

180.  In her statement dated 14 July 2004, Becky Wong stated that she was accompanied by the ICAC of her free will, and she did not ask her family or anyone to apply for habeas corpus. She said late at night on 12 July, she rang D2 and told her she was safe and sound. D2 advised her to contact a lawyer Chung on a mobile number, at that stage there was no need and she did not do so at once. She did tell D2 that she was with ‘them’ without saying who they were. She did not indicate to D2 that she did not wish to be accompanied by them, and did not ask D2 to do anything for her. One day later, she suddenly remembered the telephone number of lawyer Chung D2 gave her. Since she wanted to hear some advice from lawyer Chung, she called him late at night on 13 July and she gave an account of the conversation with lawyer Chung. She stated that she did not request lawyer Chung to represent her. So far, she understood her rights, and did not have need to contact a solicitor yet.

181.  Becky Wong said there were mistakes in her statement. She actually did not want to hear any advice from lawyer Chung. She made a mistake that she got the message about lawyer Chung during the phone call with D2 instead of through SMS, and she made no reference to the SMS from D2 because at that time she was just talking about the contents of the conversations with D2 and lawyer Chung. She did not mention the call with D2 on 11 July as she was not asked about it. At that stage, the ICAC did not know about the Semtech SIM card yet. She did not tell the ICAC about the Semtech SIM card until later that afternoon.”

57.  Meanwhile, at lunchtime on 14 July 2004, Frankie Chung saw Clement in the offices of Messrs Massie & Clement.  Frankie Chung told Clement that he had received a phone call from Becky, whom he said was previously known to him.  Clement prepared an affirmation of Frankie Chung and settled the other papers for an application for the writ of habeas corpus.  He did so without any reference to Egan.  There is no evidence that Lam was aware of the contents of Frankie Chung’s affirmation.

58.  In the afternoon on 14 July 2004, Egan called Ryan after Ryan’s conference with Rebecca Li and Ricky Chu:

“190. … Mr Ryan said he told D4 that he could not give him any details, but he was content with the way the ICAC was handling the matter.  Mr Ryan told D4 there was little he could do to help, and D4 could do whatever he wanted.  D4 replied that he would probably be proceeding with an ex parteapplication, and he asked Mr Ryan to wait to accept service of the papers.

191.  Mr Ryan said he thought of telling D4 the effect of section 17 of the Witness Protection Ordinance but did not do so because D4 had told him that he knew very well what the situation was, and D4 indicated that he knew Becky Wong was in protective custody or safe house, though not in terms of the WPP.”

59.  At about 4.30 pm, Frankie Chung affirmed his affirmation at the High Court (“Chung’s affirmation”).  This is what he said:

“I CHUNG CHEONG KUEN FRANKIE do solemnly, sincerely and truly affirm and say as follows:-

1.      Matters deposed to herein are within my own knowledge and true or have been told to me by those persons referred to in this affirmation which I believe to be true.

2.      I am a solicitor’s clerk in the employ of Messrs C K Mok & Co. of 1st Floor, OTB Building, 259-265 Des Voeux Road, Central, Hong Kong.

3.      At about 1 am on the morning of 14 July 2004 I received a telephone call at home. My mobile telephone was connected to my home line. The caller was Wong Pui Sze Becky. Ms Wong was previously known to me. She had contacted me a few weeks ago in relation to a non-criminal matter.

4.      She sounded frightened on the phone and her voice was unsteady. She said she was ‘being kept by ICAC people.’ She said she didn’t know where she was but wanted to see me. I told her that she was entitled to see a lawyer and that I could arrange this for her later that morning. I told her to confirm to those holding her that she wanted to see a lawyer. My impression was that she was scared and was uncomfortable with her situation. That she didn’t want to be there.

5.      That morning, I went to the ICAC Headquarters at Murray Road with Mr Kevin Egan of Counsel. Mr Egan told me he had been to the ICAC Building the previous evening on the instructions of Massie & Clement with a Raymond Lam, an Articled Clerk. Exhibited hereto marked ‘CCKF-1’ is a written complaint made by Mr Egan to the Head of Operations ICAC against Ms Daphne Lim Suet San (SI). Counsel’s instructions are set out in the letter. Mr Egan was not given access to Ms Wong on the evening of 13th July 2004.

6.      On our arrival at about 11.10 am we asked to see Ms Wong. The receptionist helped to find the O/C case, Mrs Chee. She appeared at about 12.00 noon. We again told her we had come to see Ms Wong at her request.

We were told that we had no appointment.

We were then met by Chief Investigator Patrick Ho. He told us that Miss Wong is not here. He said that we could do whatever we liked. He did not tell us where Ms Wong was nor did he make any attempt to locate her to tell her that her requested legal representation had arrived.

7.      As matters stand, Ms Wong has asked to see a lawyer. I believe she is in the custody of the ICAC although I do not know where. I believe that she has been held in excess of 48 hours and thus any restraint without her consent is unlawful. We have not been told that she has been charged.”

60.  On 14 July 2004, Becky was released from all conditions of bail.  She was eventually given an immunity to give evidence in the Semtech trial.

Habeas Corpus Proceedings

Wednesday, 14 July 2004

61.  The ex parte application for a writ of habeas corpus was supported by Chung’s affirmation.  Yam J heard the ex parte application at 5.30 pm.  Egan appeared for Becky instructed by Messrs Massie & Clement.  The hearing was open to the public.  This is the learned judge’s summary of the proceedings before Yam J:

“202.   D4 presented the case before Yam J as follows:

9 persons were arrested last Friday (that is, 9 July) in relation to Semtech. Becky Wong and D1 and everyone else were released on bail. However, Becky Wong was persuaded to remain by ICAC to remain in their ‘protective custody’ (in inverted commas). She was not held by the ICAC under any lawful colour of right. She was alleged by the ICAC to be voluntarily staying with them. D4 said he had instruction from her business partner, D2, the person in respect of whom the application was made. D2 had spoken to Becky Wong on Sunday (that is, 11 July) in circumstances he had set out, that is, the ICAC stopped Becky Wong from using her phone and took away the SIM card. She had a spare one. She went to the toilet to use it. She rang D2 and told her effectively she was being held against her will by the ICAC. The ICAC were obviously holding her, hoping to obtain information from her to use against the persons arrested in the Semtech operation. D4 said he went to the ICAC the night before and tried to gain access to her. All he wanted was, with instructing solicitors, access to Becky Wong so that he could say to her, in the presence of ICAC officer, whether she wanted to stay with the ICAC or whether she wished to accompany him to leave the ICAC. If she wanted to stay with the ICAC, that was the end of it; if she elected to come with him, that was also the end of it. He then went to the Central Police Station to make a complaint of false imprisonment, which triggered an investigation by the Hong Kong Police who contacted the ICAC, which resulted in Becky Wong calling the deponent of the affidavit before the court, that is, Frankie Chung. She had business with him on other occasions. He said in the affidavit that she rang him at 1 o’clock in the morning and told him she wanted access to a lawyer, and as he deposed, she sounded frightened and she was being kept by ICAC people, unlawfully kept. That morning, he went with Frankie Chung to the ICAC and were told they had no appointment. Becky Wong was not there, and they could do what they liked.”

62.  Yam J adjourned the hearing to 10 am on 15 July 2004 for an inter partes hearing.

Thursday, 15 July 2004

Yam J

63.  On 15 July 2004, the inter partes hearing commenced at 10.23 am.  Egan appeared for Becky and Ryan for the ICAC.  The hearing was in camera on Ryan’s application.  Ryan informed the court that Becky had agreed to be a witness in a very serious ICAC investigation and that she was included in the WPP under the Witness Protection Ordinance, Cap. 564 (“WPO”).  Yam J was shown Becky’s statement of 14 July 2004, which said that she had not been unlawfully detained.  At the conclusion of the hearing Yam J issued a writ of habeas corpus addressed to the Commissioner of ICAC requiring him to bring Becky to court at 3.30 pm on the same day.  Yam J also made what he described as a strictly tight-lipped order.  Yam J said:

“(3)   There should be no communication with any other person of my order issuing the habeas corpus now, today, and in particular with members of the press, and anything that has transpired in this Chambers this morning, and I would like to have an undertaking from counsel and solicitors and all persons present in Chambers to that effect.”

64.  Egan gave the undertaking.  This is the learned judge’s summary of the hearing before Yam J:

“219. While in camera, Mr Ryan applied for adjournment until 10 am the next day. He told the court that Becky Wong had agreed to be a witness in a serious ICAC investigation relating to the Prevention of Bribery Ordinance, and she was not unlawfully detained. Hence, there was no urgency. Yam J said that was contrary to the Affirmation of Frankie Chung and therefore it was imperative that Becky Wong should be brought to the court to tell His Lordship her wish, and adjourning it to the next day meant further detention of 24 hours. Mr Ryan then disclosed that Becky Wong was actually a participant in the WPP under the Witness Protection Ordinance. He read out section 17 of the Witness Protection Ordinance and handed a copy of the Ordinance to the Court and D4.

220.  Mr Ryan then submitted that he did not really know who the applicant was, and he was not even sure who D4’s client was. Yam J said that anyone could apply on her behalf.

221.  Mr Ryan said he proposed to brief Mr McCoy, SC, and he would be back from Sydney at 5.40 pm. Yam J said he could not wait for him.

222.  Mr Ryan said he could establish that Becky Wong was not being unlawfully detained. Yam J said the best way was for her to say so. Mr Ryan said if she was to come to court, and perhaps having other people looking at her, eyeballing her, might have an adverse effect on her well-being and safety. Mr Ryan produced to the court the witness statement of Becky Wong to contradict the affirmation of Frankie Chung. D4 said he suspected that the witness statement was written by an ICAC officer. Yam J said it was in direct contradiction to para 4 of the Affirmation of Frankie Chung. Mr Ryan said he wished to have it reduced to affidavit form sworn by Becky Wong. Yam J said that it boiled down to one thing: if Becky Wong was voluntary, she could come to court to say so.

223.  Mr Ryan said he had information that the whole application might well have come from one of the major parties involved in the investigation. If she was brought to court, he feared that eyeballing might take place. And even D4, with his paternal appearance and bonhomie, might induce the witness to feel that she should go with the other side. Yam J said it was a bit far fetched.”

65.  I question the need to disclose that Becky was in the WPP in the habeas corpus proceedings.  The issue in the habeas corpus proceedings was whether Becky was detained against her will.  That could be resolved without disclosing the fact that she was in the WPP.  It is unfortunate that the disclosure was made.  Such a disclosure is potentially damaging to Becky.  It might also prejudice the defence by the implicit (though not proven) imputation against the applicants or some of them that they were people from whom protection was needed.

Court of Appeal

66.  The Commissioner appealed Yam J’s order and it was heard by the Court of Appeal (Stock JA and Yuen JA) at 2.37 pm.  The hearing was ordered to be heard in camera at 2.38 pm.  During the hearing, the court was again told that Becky has been included in the WPP and that she had signed the MOU under the WPO.

67.  The learned judge said:

“248. The Court of Appeal adjourned for a brief moment, and Stock JA ruled that the most they were prepared to contemplate on Mr Ryan’s application was to stay the matter until 4.30 pm that afternoon.  The court said that Mr Ryan had appeared with not an iota of evidence before the court that Becky Wong was not in the custody of the ICAC, but that she was subject to the programme to which the Witness Protection Ordinance gives effect.  The court expressed their disappointment with the way the ICAC and their legal advisers had reacted to proceedings since the day before.”

The court stayed the matter until 4.30 pm and ordered that the matter be heard by Hartmann J, who was in charge of the Constitutional and Administrative Law List.

Hartmann J

68.  The hearing before Hartmann J began at 4.38 pm.  By that time, the Commissioner had made a certificate in return by Yang Yang-tak, Eric, an officer of the ICAC.  According to the learned judge:

“253. The certificate in return to the writ of habeas corpus was as follows:

‘I, Yang Yang Tak, Eric, in obedience to the writ herewith do certify and return that Wong Pui Sze, Becky is a witness under the Witness Protection Programme, having signed a memorandum of understanding on the 13th day of July 2004.

Consequently she is not detained under the custody of the Independent Commission Against Corruption.

Consequently the Commissioner of the Independent Commission Against Corruption is unable to comply with the order made pursuant to the writ.’”

The hearing was adjourned at 5.34 pm.  It resumed at 5.56 pm and then finally adjourned at 6.10 pm to 3 pm the next day for a substantive hearing.  It was also ordered that any affidavit or affirmation to be filed had to be filed by 12 noon on 16 July 2004.  As a consequence, Mandy’s affirmation, the subject of the perjury charge, was filed.

Friday, 16 July 2004

69.  On 16 July 2004, the South China Morning Post (“SCMP”) published an article under the by-line of Magdalene Chow and Sara Bradford which contained this sentence:

“A legal source said Ms Wong was in the ICAC witness protection programme”.

70.  At 2.37 pm, at the request of the Court of Appeal, the parties appeared before the court.  Stock JA drew attention to the SCMP article, in particular, the statement quoted above.  The court informed the parties that it would send the papers to the Secretary for Justice so that inquiries could be made as to whether an offence had been committed under section 17 of the WPO.  That was duly done.

71.  On the same day, at the end of the substantive hearing, Hartmann J discharged the writ of habeas corpus.

The 1^st charge (conspiracy to pervert the course of justice)

72.  The 1^st charge alleged that the four applicants conspired together with Frankie Chung:

“3.     … to pervert the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice, namely, to obstruct and hinder the investigation and possible proceedings by seeking to gain access to Wong Pui-see, Becky, a person whom they believed or suspected to be co-operating with and assisting the ICAC in that investigation, with a view to ascertaining what she had said to investigators of the ICAC and influencing her against providing assistance or information to the ICAC by …”

the four particulars (a) to (d).  (See para. 8 above).  Each of the particulars contained an allegation of falsity or sham.

73.  Ms Clare Montgomery, QC, appearing for Lam, submitted that the words “a series of acts” referred to the words following “namely”, whereas Mr Martin Wilson, QC, appearing for the respondent, submitted that the “series of acts” referred to particulars (a) to (d).  It is clear to me that the “series of acts” referred to the particulars (a) to (d).

74.  It is relevant to note that the charge alleged that it was the doing of these series of acts or one or more of them (the series of acts) which had the tendency to pervert the course of public justice.  So the charge required proof that (i) there was an agreement to do the series of acts, (ii) that the series of act had the tendency to pervert the course of justice in the way alleged and (iii) the applicants intended so to pervert the course of justice.  Absent the agreement to do the series of acts, each with their elements of sham or falsity, the charge is not made out. I should also mention that the Reasons concentrated on particulars (b) and (c), which concerned the habeas corpus proceedings.  No specific finding was made in relation to particulars (a) and (d) and I will not deal with them specifically in this judgment.

No property in a witness

75.  The alleged object of the conspiracy charge was to gain access to Becky.

“(i)  in order to ascertain what she had said and to influence her against providing assistance or information to the ICAC,”

Becky was at that time a potential witness in the Semtech investigation.  The law regarding access to a potential witness is relevant.

76.  There is no property in a witness.  The Hong Kong Solicitors’ Guide to Professional Conduct, Vol. 1 (2^nd ed.), para. 10.12 at p. 107 states:

“10.12  Interviewing witness or prospective witness

It is permissible for a solicitor acting for any party to interview and take statements from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by another party.”

The position in Hong Kong is the same as in England.

77.  As Lord Denning MR famously said in Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd. [1979] 1 WLR 1380:

“So far as witnesses of fact are concerned, the law is as plain as can be. There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the Court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena. That was laid down by the Law Society in 1944 and published in the ‘Short Guide to Professional Conduct and Etiquette’. It was affirmed and approved in 1963 by the then Lord Chief Justice and the judges and republished in The Law Society’s Gazette for February 1963. It says:

‘... the Council have always held the view that there is no property in a witness and that so long as there is no question of tampering with the evidence witnesses it is open to the solicitor for either party in civil or criminal proceedings to interview and take a statement from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by the other party.’

That principle is established in the case of a witness of fact: for the plain, simple reason that the primary duty of the court is to ascertain the truth by the best evidence available.”

78.  The rigour of this principle can be seen from later cases.

79.  In R v Terry Higgins [2003] EWCA Crim 2943, the court was concerned with the complaint made by the convicted appellant that the judge should have stayed the prosecution because there was bad faith on the part of the police in interviewing four potential defence witnesses in the way they did, and/or because their conduct in that respect was unfairly prejudicial to the appellant’s defence and as such violated his right to a fair trial under Article 6(3)(b) of the European Convention on Human Rights.  Dismissing the appeal, Auld LJ in the judgment of the court said:

“24.   We have seen and read transcripts of all the interviews. There were many of them and in each case they were lengthy and repetitive. The length of them is reflected in about 325 pages of transcript. The pattern of each was much the same, repeated questioning in great detail on the original story given, seeking, as more and more detail was extracted, to open up differences between the two versions, those given originally and those given later in the interviews. Then, having opened up such differences, the police confronted the interviewees with them and with the contradictory statements of proposed prosecution witnesses. And in each case the interviews culminated with suggestions from the police that the interviewees were lying and had been put up to it by the appellant, or by each other, all of which they denied.

25.    The tenor of each of the interviews towards their end was that the police knew they had lied in their earlier accounts to them: three in their section 9 witness statements. The police also variously suggested that the appellant had dishonestly secured the favourable outcomes in earlier prosecutions in a similar manner, by recruiting lying witnesses. Their questions, particularly towards the end of the interviews, were assertive and confrontational, but not untypical of rigorous testing in cross-examination by police of suspects in interview.

26.    Their questioning was in some instances cautionary, with particular regard to the interviewees’ potential roles as defence witnesses for the appellant. The police told them that they would be at risk of perjury charges, as well as the current charge under consideration of conspiracy to pervert the course of justice, if they gave untrue evidence.”

80.  R v Brett Evans and Jonathan Caffrey [2001] EWCA Crim 730, is also a decision of the English Court of Appeal.  It concerned the conviction on the third and final trial of two persons for murder and causing grievous bodily harm on a person on 6 November 1994.  At the first trial in February 1999, the jury were unable to agree upon any verdicts and a retrial was ordered.  A second trial took place in June 1999 and the jury were discharged at a point towards the end of the prosecution case when it became clear that the prosecution were unable to call certain witnesses whose evidence had been opened to the jury.  The third and final trial took place between 8 November 1999 and 15 December 1999.

81.  One aspect of Evans’ defence was that a number of independent witnesses, neighbours and acquaintances of the deceased, had made statements to the police to the effect that they had seen the deceased alive after 6 November 1994, or had heard his voice or seen or heard activity at his flat that tended to show that he was alive after 6 November 1994.

82.  As Waller LJ described it in the judgment of the court:

“39.   [The complaint] was these witnesses who had been revisited by the police after the arrest of Evans in April/May 1998.  Many of them were told that their evidence had been proved to have been mistaken; that the deceased was definitely dead before their sightings of him; or that they had ‘seen a ghost’.  An application accordingly was made at the trial on behalf of Evans that this revisiting amounted to an abuse of process.  The judge concluded that on a number of occasions the police officers had behaved improperly in the manner in which they had taken the new statements, but he declined to stay the proceedings.”

83.  Waller LJ went on to say:

“49.   … first that these witnesses were revisited at all by the police …; second the way in which the witnesses were in fact approached. The complaint is that various of the witnesses were told, as if it was established as a fact, that the deceased had been killed on 6 November.  Mr Barrett submitted that the accurate way to put the matter was that it was being asserted that the deceased had been killed on 6 November and there was a body of evidence which supported the view that he had in fact not died on that date.

50.    Mr Barrett suggested that there were two possible motives for the police revisiting these witnesses. The first would be a genuine concern that the evidence of Reiss might be false and that the deceased was not killed on 6 November. The alternative was that the police intended to pursue the prosecution of Evans and Caffrey on the basis of the account of Reiss, and that knowing that they would be obliged to disclose the statements of these witnesses, the police were embarking on a ‘damage limitation exercise’ to persuade those witnesses that they might be mistaken. Mr Barrett invited the judge, as he invited us, to draw the inference that all the available evidence showed that the motive behind the revisits was for the second motive, which he described as ‘an improper one’ seeking to interfere with the evidence of the witnesses who might help the defence.

51.    We have no doubt that the ruling of the judge on this aspect was right. There was nothing improper in the police revisiting the witnesses. It would be quite improper for the police to put inaccurately the evidence in order to obtain a statement or a change in a statement from a witness. However, in this case it must be remembered it is not the statement which is important, it is the evidence which is ultimately given at the trial. In the circumstances of this case original statements had been obtained, the police had revisited and possibly obtained changes in those statements, but, the defence solicitors were in a position to visit those witnesses themselves and put to those witnesses any aspect on which they had been misled by the police. …”

84.  It appears therefore that the English Court of Appeal saw nothing improper in the prosecution or the defence approaching and visiting witnesses in order to put their version of the facts to them, including telling the witnesses that they had been misled by the other side.

85.  In Kwan Fung-kam v A-G [1990] 2 HKC 577, Cons VP delivering the judgment of the Court of Appeal said:

“… In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena.”

86.  Kwan Fung-kam v A-G [1990] 2 HKC 577 was concerned with a summons taken out by the Director of Legal Aid for specific directions regarding the propriety of approaching police officers who were witnesses in a negligence claim against the police.  The issue was:

“(2)   Whether or not it is open for … anyone in authority on behalf of the government of Hong Kong to issue instructions to any police witnesses … in terms which either prohibit or inhibit them … attending interviews with and giving statements to, legal representatives for the plaintiff.”

87.  Cons VP said at 578:

“… A letter from one officer, declining the invitation, indicated that Senior Crown Counsel had advised that he, the officer, was under no obligation to attend; with respect, perfectly proper advice.”

Thus, the court accepted that advising a witness that he was under no obligation to cooperate was proper, although such advice was given in the interests of a party to the proceedings and not of the individual witness.

88.  Another important facet of this principle can be seen in the decision in Connolly v Dale [1966] QB 120.  In Connolly the English Court of Appeal held that police officers acted unlawfully when they prevented the applicant’s solicitors from having full and unimpeded access to potential alibi witnesses.  There, the applicant who was jointly charged with murder, wished to rely on the alibi evidence of several men who had no fixed abode.  His solicitor instructed an inquiry agent, who was provided with a photograph of the applicant, to take immediate steps to find the men by inquiring at the hostel where the applicant had stayed.  When he visited the hostel the inquiry agent was prevented by police officers from showing the photograph on the basis there was possible prejudice to the proposed identification parade.  He was also prevented by the police from gaining access to staff or residents.  The detective superintendent responsible for the police investigation told the solicitor that showing the photograph to potential identification witnesses would amount to obstructing the police in the exercise of their duty, contrary to the Police Act 1964, and threatened to take action to prevent it.  On the motion to commit the detective superintendent for contempt of court, it was held in the Divisional Court that, the detective superintendent was guilty of a clear contempt of court.  The court would have granted injunctive relief but for the undertaking, which was accepted, not to interfere with the applicant’s solicitors or their agents in the proper course of their inquiries in connection with the preparation of the applicant’s defence to the charge of murder, and to send a letter of the manager of the hostel to correct any impression which the police might have given that the police had the right to prevent the applicant’s solicitors or their enquiry agents from interviewing and/or showing photographs to staff or residents at the hostel.

89.  As there is no property in a witness, it is not improper to approach a witness for the prosecution (or a witness for the defence by the police) unless improper means are used.

90.  In Connolly, the applicant applied for committal for contempt and the Divisional Court was prepared to grant immediate injunctive relief had that been necessary.  Say in Connolly, the alibi was false and Connolly knew it but his solicitors and the inquiry agent did not.  Could it be said that the solicitors and the inquiry agent were guilty of a conspiracy to pervert the course of justice because Connolly wanted to prejudice the proposed identification parade?  I believe not.  I will deal later with the question whether the solicitor’s belief (as opposed to knowledge) in the truth or otherwise of the alibi is a relevant consideration.

Witness Protection Ordinance (“WPO”), Cap. 564

91.  But is the principle that there is no property in a witness affected in any way by the witness’s inclusion in the WPP?

92.  The WPO came into force on 9 November 2000.  It is unnecessary for me to go through the WPO in any detail.  Under the WPO, a WPP can be established by the approving authority.  The approving authority is:

“… each of the Commissioner of Police and the Commissioner of the (ICAC)”.

93.  Inclusion in the WPP by the witness is voluntary and can be terminated by notice at any time by the witness Section 6(2)(a)(iv).  Both the witness and the authority are required to sign a MOU but:

“(3)   A witness becomes included in the witness protection programme when the approving authority signs the memorandum of understanding.”  Section 6(3).

In the present case, Becky was not formally within the WPP because at the material time the MOU had not been signed by the approving authority.  That is why the 4^th or 5^th charges were amended to one of attempt.  If a person is included in a WPP or is being assessed for inclusion, the approving authority shall take such action as he considers necessary and reasonable to protect the witness’s safety and welfare: section 7.  Under section 8, the witness could be given a new identity, presumably, after he has ceased to be a witness.  Under section 19, members of the public wishing to enter the courtroom where the witness is going to give evidence may be required to identify themselves to the satisfaction of the officer and to undergo such search as the officer may require to protect the security or well being of the witness.

94.  I believe the fact that a person has been included in the WPP does not in any way affect his position as a witness.  Nor would it be legitimate to draw any adverse inference against the defence.  However, the danger that a jury might do so is a reason why there should be no unwarranted disclosure.

95.  Also, I believe the fact that Becky was in the WPP does not mean that she could not be contacted as a potential witness.  Mr Wilson did not dispute that.  Her whereabouts might not be known.  But it would not be an offence to try to contact her.  Say, as in Connolly, inquiry agents were engaged to locate her.  That is prima facie lawful.  First, because it would not be known that she was in WPP.  But, even if, for any reason, that fact has become known, I can see no reason why one might not attempt to locate and contact her.  Suppose, in the Semtech prosecutions, she was a potential witness for one or more of the applicants, including Derek.  Why can no attempts be made to locate and contact her?  It would then be up to her to decide whether or not to help.  Of course, one must not compromise the security of a person in the WPP or use improper means.  Section 17(1)(b).  But I can see no reason in principle why one should not try to contact or enlist her as a witness. 

Falsity or sham

96.  Mr Wilson submitted that falsity or sham was not part of the offence charged.  Mr Wilson accepted it was not the prosecution’s case at trial that falsity or sham was not involved in the charge.

97.  The learned judge held, and I respectfully agree:

“365. … Although the knowledge or belief that Becky Wong was not unlawfully detained and did not seek release from the custody of the ICAC was pleaded only in the particulars of the overt acts, I hold that such knowledge and belief is an essential element of the 1st charge.”

98.  Before us, however, Mr Wilson submitted:

“1.4   There is ample authority that attempting to persuade someone not to cooperate with investigatory bodies can amount to attempting to pervert the course of public justice (e.g., R v Kellett [1976] 1 QB 372, R v Toney (1993) 97 Cr App R 176, [1993] Crim L R 397, R v Ali [1993] Crim L R 396. And see R v Antoniades (1973) 57 Cr App R 762). That was the object of the conspiracy in this case, which the agreed course of conduct was intended to achieve. And see Meissner v R (1995) 184 C.L.R. 132.”

99.  In Antoniades, the applicant was charged with conspiracy to pervert the course of justice by an offer of money or some other material benefit (such as the provision of a flat) as an inducement to a witness (the alleged victim) to withdraw her allegation of rape.  The principal argument was that since the woman was the alleged victim, she could not be regarded as a witness for the purpose of the conspiracy.  Scarman LJ (as he then was) delivering the judgment of the Court of Appeal, said:

         “In our judgment, the question whether a person is to be treated as a witness or not can only be answered by having regard to the proceedings contemplated. If a person has made a statement with a view to the provision of evidence in support of criminal proceedings, certainly in that case such a person in relation to those proceedings is a witness, and it is a perversion of the course of justice to offer him (or her) an inducement to alter or withdraw the statement. Can it make any difference that she is also the complainant – or that she has a right herself to initiate a prosecution? If the inducement is offered to her because she is a witness and for the purpose either of dissuading her from giving evidence or of persuading her to alter her statement, the offence of conspiring, or, if there be only one offeror, attempting, to pervert the course of justice is established. It matters not that under the old law the facts might also have established a misprision or a compounding of a felony or that under the new law an offence might have been established under section 4 or section 5 of the Criminal Law Act 1967.”

100.  Antoniades is authority that any attempt to dissuade or prevent a witness from giving evidence by an offer of material benefit as inducement is an offence at common law.  Antoniades does not support Mr Wilson’s submission.

101.  Kellett was also charged with attempting to pervert the course of justice.  He threatened to bring a slander action against his neighbours with the intention of causing them not to give evidence in his divorce proceedings.  The English Court of Appeal in a judgment delivered by Stephenson LJ concluded:

“A jury should be directed that a threat (or promise) made to a witness is, like an assault on a witness, an attempt to pervert the course of justice, if made with the intention of persuading him to alter or withhold his evidence, whether or not what he threatens (or promises) is a lawful act, such as the exercise of a legal right, and whether or not he has any other intention or intends to do the act if the evidence is not altered or withheld” at 393.

Earlier Stephenson LJ said at page 386:

“First, we do not consider it fortuitous that there is no case in the books, as far as we know, which supports the extreme view indicated by some of the textbook statements that any interference with a witness is an attempt to pervert the course of justice.”

Stephenson LJ had earlier explained at page 383:

“Perversion of the course of justice is per se an offence against the public weal. An attempt (or incitement) to pervert (or defeat) the (due) course of justice is an offence against the common law and no less than a conspiracy to pervert it was a punishable misdemeanour: Reg. v. Grimes (Note) [1968] 3 All E.R. 179, 181, per Kilner Brown J.; Reg. v. Vreones [1891] 1 Q.B. 360, 367; Rex v. Tibbits and Windust [1902] 1 K.B. 77; Rex v. Greenburg (1919) 63 S.J. 553; Reg. v. Andrews [1973] Q.B. 422, 425 and Reg. v. Panayiotou [1973] 1 W.L.R. 1032. Those cases show also that tampering with evidence, inducing a person to give false evidence, or not to give evidence, for reward are instances of this common law offence, whether the evidence is to be given in criminal or in civil proceedings and whether the inducement is effective or, as in this case, not. But they were all concerned with the manufacture of false evidence or the withdrawal of a true complain. They do not deal with the limits of the offence or indicate whether it can be committed where the evidence of the potential witness is false or may be false, or whether it can be committed where the means used are not bribery or reward but threats, or where the threats used are threats to exercise a legal right, or where the intention, or one of the intentions, of him who approaches the potential witness is to exercise such a right or to see that justice, or what he believes to be justice, is done to himself or another.

It would seem repugnant to justice and to common sense if in every one of these cases the ‘offender’ could be said to be attempting to pervert or defeat or obstruct the course or the ends of justice. But there is some authority for supposing that any interference with a witness is such an offence, and no clear guidance in the authorities on the limits within which such interference with a witness may not be an attempt to pervert the course of justice-or a contempt of court.”

102.  In Toney, the appellant Toney’s brother was charged with robbery, and the trial was due to start the following week.  The appellant went to see the witness and wanted to talk about the evidence which the witness wished to give at the forthcoming trial.  He had been told that the prosecution case would be that the witness had seen two people near the community centre, one with a stocking masked over his head.  The appellant said that this was not so.  His brother Brian was not there and “the white guy didn’t have a stocking over his face”.  The witness started to walk back to his house.  He felt irritated and annoyed, and he did not want to discuss the case further with the appellant.  At that point, the appellant said, “You’re going to court to say you didn’t see two people, one with a stocking mask over his head”.  The witness replied “I did” or “I am”, or words to that effect.

103.  In that case, the appellant had not used any force nor uttered any threat.  What the trial judge said in the summing up to the jury was that the jury must be satisfied that the appellant actually intended that the witness should give evidence which differed from the evidence which the witness would otherwise have given.  It was in that context that the English Court of Appeal said the offence of perverting the course of justice by interfering with a potential witness could be committed where there was no evidence of any bribe, threat, undue pressure or other unlawful means:

“… The gist of the offence lies in telling a potential witness what he should or should not say with the intention of influencing his evidence, not in the means adopted.”  Lloyd LJ at 368E.

It is to be noted that the incidence took place two days before the witness gave evidence.  As Stephenson LJ said in Kellett at 392H:

“… Pressure which may be permissible at one stage of the particular proceedings may be improper at another …”

However, Lloyd LJ went on to say at 370:

“We can now summarise the position as follows. (1) In the great majority of cases of perverting the course of justice by interfering with a witness the actus reus will be accompanied by unlawful means such as threats, bribery or improper pressure. (2) The use of unlawful means is not however an essential ingredient in the offence. The ingredients are those set out by the judge in his summing up which we need not repeat. (3) In cases where the defendant might otherwise have a defence of lawful excuse, for example where his purpose is to persuade a false witness, or a witness he believes to be false, not to commit perjury, he will nevertheless be liable if he employs unlawful means. (4) ‘Unlawful means’ in this context includes a threat to do an otherwise lawful act or to exercise a legal right. (5) In all cases the prosecution must prove the necessary intent.”

104.  Toney was disapproved by the High Court of Australia in the case of Meissner v R [1994-1995] 184 CLR 132.  In Meissner, the charge was that Meissner committed the common law offence of attempting to pervert the course of justice by improperly endeavouring to influence the plaintiff to plead guilty to a charge of making a false statutory declaration.  Meissner was concerned with the employment of improper means to influence the plea of an accused person and result in the choice not being a free one.  Brennan J, Toohey J and McHugh J said in their joint judgment at 140:

“… In R v Toney (26), Lloyd LJ, speaking for the Court of Appeal, held that the offence of attempting to pervert the course of justice might be committed by a person who seeks to secure a legitimate end (for example, the persuading of a false witness not to commit perjury) by unlawful means and that ‘unlawful means’ includes a threat to do an otherwise legal act or exercise a legal right. With respect, we do not think that observation is right in principle. If the conduct of the alleged offender is no more than a threat to do what he might lawfully do in order to secure a legitimate end, we are unable to detect conduct which has a tendency to pervert the course of justice. But, accepting that that is so, it is not a legitimate end to persuade a person to plead guilty otherwise than in the exercise of a free choice in his or her own interests.”

105.  But, with respect, I am of the view that Toney was correctly decided on its facts.  There, the trial was about to start the following week.  Suppose Toney was the employer of the witness, if he had told the witness that unless he should say in court that he:

“… didn’t see two people, one with a stocking mask over his head”

he would give him his contractual notice, that would be no more acceptable than if he had offered a raise to the witness.  The context, I would reiterate, is all important.

Egan, the 4^th applicant

The 1st charge

106.  I will deal with the applicants in the reverse order starting with Egan.  The learned judge acquitted Egan because he was not satisfied of his awareness of a sham.  Essentially, the judge was not satisfied that Egan was aware that Becky was not held against her will.

107.  The learned judge said:

“611.     Since D4 had never spoken to Becky Wong, and as counsel he would normally act on instructions from client, be it D1 or D2, his knowledge or belief at the material time of Becky Wong’s status is essential.

612.       Say if at the material time D4 did believe Becky Wong was being held against her will, and as such he also wanted to influence her against providing assistance to the ICAC, and it turned out that Becky Wong did seek to be released from the ICAC, would D4 have the requisite guilty intent?  I say not.

613.       Hence, I must consider whether an inference of knowledge or belief that Becky Wong was not lawfully detained and did not seek release from custody could be drawn against D4.  In fact, I will so do for the other defendants as it is apparent from my consideration of no case.”

108.  It is important to note that Egan acted in his professional capacity.  As such, provided he did not know his instructions to be false, he was obliged to act on them.  The Code of Conduct of the Bar provided that subject to provisions which are irrelevant for the present purpose:

“A barrister is under a duty to defend any accused person on whose behalf he is instructed irrespective of any belief or opinion he may have formed as to the guilt or innocence of that person.”

This principle applies to non-criminal work as well.  Insofar as particulars (b) and (c) relied on belief or lack of belief on the part of Egan, I believe they are objectionable.

109.  The learned judge after saying that Egan had not been a truthful witness, concluded:

“620.   In all the circumstances, I am sure that D4 must have known that and intended his acts would have the tendency of influencing Becky Wong, but I cannot be sure that D4 knew it was a sham.  Hence, I cannot be sure of his guilt under the 1st charge.”

110.  Although Egan was acquitted, there is an appeal by the Secretary for Justice by way of Case Stated in relation to such acquittal.  The questions of law raised in the case stated are:

“(1)   Did I err in holding that the knowledge or belief that Becky Wong was not unlawfully detained and did not seek release from custody of the ICAC was an essential element of charge 1?

(2)  Did I err in concluding that before I could convict the Respondent of the charge of conspiracy to pervert the course of public justice, I had to be satisfied beyond reasonable doubt that the Respondent knew or believed that Becky Wong was not unlawfully detained and was not seeking her release from ICAC custody?

(3)  Did I err in acquitting the Respondent notwithstanding that I found that he had sought access to Becky Wong and used the media to publicise an allegation that she was being held against here will with the intention of influencing Becky Wong’s participation in the witness protection programme provision of assistance or information to the ICAC, an object of the conspiracy, nevertheless I could not be sure that the Respondent was not motivated by the belief that Becky Wong was being detained by the ICAC against her will?

(4)  Did I err in not convicting the Respondent of the charge of conspiracy to pervert the course of public justice given that I found that he intended to influence Becky Wong against providing assistance or information to the ICAC and given that I found that by the 15 July, the Respondent believed that Becky Wong was a participant in the WPP?”

111.  At paras. 617 to 619, the learned judge said:

“617.   I am sure D4 knew that D1 and D3 had an interest in the habeas corpus application.  D3 gave him the initial instructions at the FCC, and the telephone contacts with D3 shows D3’s concern.  He wrote down D1’s name instead of D2’s name in his notebook, although he did not write down D1 was his client.  On the other hand, he would not have written down D1’s name unless he thought D1 was closely related to the case.  He effectively told D1 the outcome of the hearing before Yam J.  D4 tried to liken his mistrust of the ICAC to the queries by Yam J and Hartmann J.  With respect, their Lordships did not know about the background and involvement of D1 and D3.

618.    But then was he misleading the court in not telling D1 was his client?  Legally speaking, D2 was his client.  D2 had telephone conversations with Becky Wong and she claimed that Becky Wong wanted release.  D4 might have thought on that basis, D2 was the proper client.  I feel I am in a chicken and egg situation of lie and knowledge on the part of D4.  The report to the police, involvement of the press or speaking to Magdalene Chow, extraordinary they may be, do not lead me to a conclusion beyond doubt.

619.    It was submitted that Frankie Chung’s lie to D4 was not of significance.  I can of course ignore his lie to D4 if D4 knew it was a sham all along.  Mr Wilson submitted that D4 was already committed in active steps of the agreement before D4 met Frankie Chung.  The active steps were the legal visit and telling the ICAC he had instructions to apply for habeas corpus.  But what agreement:  the brief or the conspiracy?”

112.  It is unclear what the learned judge meant when he asked:

“619.   … But what agreement:  the brief or the conspiracy?  That again begs the question of knowledge.”

113.  In para. 618, the learned judge asked:

“618.   .. was [the 4^th defendant] misleading the court in not telling D1 was his client?”

114.  He came to the conclusion that he was unable to conclude beyond doubt that Egan was misleading the court.  The learned judge was not satisfied beyond doubt that Derek was his client.  If that be the case, there was no question of Egan not telling the court that that was so.

115.  If Egan acted properly on the instructions of Massie and Clement that Becky was not with the ICAC voluntarily and that the application for habeas corpus was not a sham, it is difficult to understand why the learned judge thought:

“620.   [The 4^th defendant] must have known that and intended his acts would have the tendency of influencing Becky Wong …”

116.  I am unable to read this passage as saying that the learned judge found, as the question (3) of the Case Stated suggests that the learned judge had found that Egan had sought access to Becky and used the media to publicise an allegation that she was being held against her will with the intention of influencing Becky’s provision of assistance or information to the ICAC.  With respect, that would be reading too much into the expression “his acts would have the tendency of influencing Becky”.  In any event, the important finding in favour of Egan was that he was not aware of a sham (see paragraph 620 of the Reasons).  In my view, this clearly indicated that the judge held as a fact that Egan was unaware that the attempts to gain access to Becky (including the habeas corpus proceedings) were shams.  In other words, he was not satisfied that Egan knew Becky was being held voluntarily.

117.  Accordingly, the making of an application for habeas corpus when one believes there are good grounds for doing so is not an agreement to do an act which has the manifest tendency to pervert the course of justice.  There will have to be proof of an intent to do an act which will have the effect of perverting the course of justice.  Given the judge’s findings, I can see no basis on which one could say that Egan was not entitled to proceed on the basis of his instructions.

118.  Thus, insofar as the application for habeas corpus was properly made, that is not unlawful even if it might also have the tendency to influence Becky not to cooperate with the ICAC.  I have already dealt with Mr Wilson’s submission to the contrary from paras. 98 to 105 above.

119.  The above matters are relevant to the question of the requisite intention.  In Meissner, Brennan J, Toohey J and McHugh J said at 140:

“A person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice.”

In R v Rogerson 107 ALR 225 Brennan J and Toohey J said at 232:

“Of course, where there is an agreement to do an act that has a manifest tendency to pervert the course of justice, proof of an agreement to do the act may suffice to prove the intent thereby to pervert the course of justice. But, if the act to be done is of such a nature that its tendency to pervert the course of justice is not manifest, proof of an agreement that the act be done does not, without more, amount to proof of a conspiracy to pervert the course of justice: in such a case, there has to be proof of an intent to do an act that will have the effect of perverting the course of justice. The state of an alleged conspirator’s knowledge of the nature of the relevant act is of critical importance. An act which is not known to have the tendency or is not intended to have the effect of perverting the course of justice is not an act the doing of which attracts a liability to punishment as for an attempt to pervert, or a perverting of, the course of justice. An agreement that such an act be done made among persons who do not know that the act has such a tendency and who do not intend it to have that effect is not a conspiracy to do an unlawful act. To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect. In this context, knowledge and intent relate to the acts and circumstances contemplated by the conspirators; the legal complexion of those acts and circumstances is a question of law.”

120.  Accordingly, given the important finding that Egan was unaware of the sham, the requisite intention could not be established.

121.  I would answer the questions in the case stated as follows:

(1)  No

(2)  No

(3)  No

(4)  No

122.  I would reiterate in relation to question (3) that as the authorities show, intending merely to influence a potential witness’ provision of assistance or information to the ICAC is not unlawful.  I can see no reason why a potential prosecution witness should not be persuaded to give evidence for the defence and vice versa, provided no unlawful means were used.  Moreover, I agree with Mr Reynolds that the learned judge had not in the Reasons found that Egan:

“had sought access to Becky Wong and used the media to publicise an allegation that she was being held against her will with the intention of influencing her …”

123.  As for (4), as I have earlier said, the fact that a person has been included in the WPP does not mean that the person would no longer be available to the defence.  In other words, the witness does not become the property of the prosecution by inclusion in the WPP.

124.  In my view, the learned judge was correct in his acquittal of Egan of the 1^st charge.

Charges 4 and 5

Belief

125.  Charges 4 and 5 are based on section 17 of the WPO.  Section 17, where relevant, provides:

“(1)   A person shall not, without lawful authority or reasonable excuse, disclose information-

(a)  about the identity or location of a person who is or has been a participant or who has been considered for inclusion in the witness protection programme;”

The charges alleged disclosure of information that Becky was in the programme, rather than she had been considered for inclusion in the programme.    They are framed as attempting the impossible, because as at the date of the offences, i.e, 15 July 2004, the Approving Authority had not signed the MOU, and Becky was not legally a participant in the WPP.

126.  The prosecution case was that these offences were committed during two conversations between Egan and Magdalene Chow, a reporter employed by the SCMP, in the afternoon on 15 July 2004.  At 4.38 pm the hearing began before Hartmann J and concluded at 6.10 pm.  Between 5.34 pm and 5.56 pm, there was a brief adjournment while Hartmann J considered his ruling.  The offence charged under the 4^th charge allegedly took place during this adjournment.  The 5^th charge allegedly took place after 6.10 pm, when the hearing was adjourned to 16 July 2004 at 3 pm.

127.  I agree with the learned judge that:

“469. The relevant questions which arise for consideration are:

(1)  Did D4 believe that Becky Wong was in the WPP?

(2)  With that belief, did he disclose the identity of Becky Wong as a participant in the WPP?

(3)  Did he intend to commit the offence which it is alleged he attempted to commit?”

128.  Mr Wilson submitted that the learned judge was wrong when he said that one of the relevant question was:

“(1)   Did D4 believe that Becky Wong was in the WPP?”

129.  With respect, the learned judge was perfectly correct.  Mr Wilson submitted that a person is guilty of an attempt to commit an offence under section 17 of the WPO, if, on being told, though wrongly, that a person was in the WPP, the informant disclosed that information to another person even if he did not believe that information.  I do not agree.  In R v Shivpuri [1987] 1 AC 1, Lord Bridge of Harwich in his speech which had the concurrence of the other Lords said a person had to be judged on the facts as he believed them to be.

130.  Lord Bridge explained at page 22:

“… What turns what would otherwise, from the point of view of the criminal law, be an innocent act into a crime is the intent of the actor to commit an offence. I say ‘from the point of view of the criminal law’ because the law of tort must surely here be quite irrelevant. A puts his hand into B’s pocket. Whether or not there is anything in the pocket capable of being stolen, if A intends to steal, his act is a criminal attempt; if he does not so intend, his act is innocent. A plunges a knife into a bolster in a bed. To avoid the complication of an offence of criminal damage, assume it to be A’s bolster. If A believes the bolster to be his enemy B and intends to kill him, his act is an attempt to murder B; if he knows the bolster is only a bolster, his act is innocent. These considerations lead me to the conclusion that the distinction sought to be drawn in Anderton v. Ryan between innocent and guilty acts considered ‘objectively’ and independently of the state of mind of the actor cannot be sensibly maintained.”

131.  Suppose A, a petty criminal, were to tell B, another petty criminal, that he was in the WPP, which B did not believe.  In fact, A was not in the WPP.  B then said to C, another petty criminal that A had boasted of being in the WPP.  In such circumstances, would B be guilty an attempt to commit a section 17 offence?  I think not.  Suppose the person who disclosed the fact was someone whom one would normally have regarded as reliable, that would only go to the likelihood of the informant’s belief or disbelief of the information.  The more reliable the source, the less likely the informant would not believe it.  But to be guilty, he had to believe that the information was true.

132.  I turn to the learned judge’s finding that Egan believed that Becky was in the WPP.  The learned judge said:

“674. … With the disclosure of Becky Wong being in the WPP, mutatis mutandis, D4 did believe that Becky Wong was in the WPP notwithstanding he had instruction that Becky Wong wanted to leave the ICAC.”

133.  It is, of course, possible that Egan believed Ryan when he was told that Becky was in the WPP, but, with respect, I do not believe it followed necessarily as seemed to be implied by the expression “mutatis mutandis”.  Earlier, the learned judge had said:

“630. Granted Becky Wong was not asked whether she had contacted any lawyer until after the second legal visit by D4, but her position was and still is that she stayed with the ICAC voluntarily, and she did not want to leave.  If D4 were told that, he would have disbelieved it, just as he did so on 15 July …” (Emphasis added)

Throughout his evidence, Egan said he did not believe that Becky was in protective custody voluntarily.  If she was detained against her will that might throw doubt on whether she was indeed in the WPP.  The learned judge held that Frankie Chung had lied to Egan, telling him that he had spoken to Becky and that Becky wanted to leave the custody of the ICAC, and that Egan did not know that to be a lie.  There is no evidence or finding that Egan knew that Becky was not telling the truth.  The learned judge said that he could not be sure that Egan knew that the application for habeas corpus was a sham.

134.  In para. 617, although in a different context, the learned judge said:

“617. … D4 tried to liken his mistrust of the ICAC to the queries by Yam J and Hartmann J.  With respect, their Lordships did not know about the background and involvement of D1 and D3.”

As I understand it, the learned judge was there referring to the fact that both Yam J and Hartmann J were not prepared to accept Ryan’s assertion that Becky was in the WPP.  The implication of the final sentence, however, is important.  The learned judge appeared to be saying that he rejected Egan’s evidence of his mistrust of the ICAC, because of his knowledge of the involvement of Derek and Lam.  Presumably because the knowledge of the involvement of Derek and Lam cast doubt on the reliability of the evidence that Becky was held against her will.  But the judge has found that it had not been proved that Egan knew or believed that the application was sham.  Any imputation that Egan did not know or believe the genuineness of the application would contradict that.  If the learned judge has made contradictory findings, I should act on the finding which is in favour of the defence and reject that which is inconsistent.  Accordingly, I conclude that Egan had proceeded and was entitled to proceed on the basis that the habeas corpus application was not a sham.  Insofar as the learned judge did cast doubt on his evidence on an inconsistent basis, such doubt is not supportable.

135.  In my view the learned judge’s finding that Egan believed Becky was in the WPP cannot be supported.  On this basis alone, Egan’s conviction must be overturned.  Nevertheless, in case I am wrong in relation to Egan’s belief, I will now consider the rest of the evidence on the assumption that Egan did believe that Becky was in the WPP.

The evidence

136.  According to Magdalene Chow, as a result of certain conversations, an article appeared in the SCMP on 16 July 2004 under the by-line of Magdalene Chow and Sara Bradford.  Sara Bradford, another SCMP reporter had covered the matter on 14 July 2004 but happened to be unwell on 15 July 2004, and Magdalene Chow covered the case in the afternoon of 15 July 2004.

137.  The article contained the statement:

“A legal source said Ms Wong was in the ICAC witness protection programme.” 

138.  According to Magdalene Chow, that statement was not in her original draft but after she had emailed her original draft to the SCMP, she telephoned and added the statement that:

“A legal source said it was believed that Ms Wong was in the ICAC’s witness protection programme”.

She said “it was believed” were edited out.

139.  Magdalene Chow was cross-examined extensively on her journalist’s notebook.  It was her evidence that pages 29 to 35 of her notes related exclusively to her conversation with Egan and page 36 related to Clement and that they did not contain what other journalists had told her.

140.  The learned judge’s summary of Magdalene Chow’s evidence in relation to the first conversation is as follows:

“272. Magdalene Chow said she saw D4 and Mr Ryan come out of the court to the lobby during the break before a single judge.  She said the reporters surrounded the lawyers and asked questions.  Mr Ryan said he was not allowed to say anything.  D4 was also asked questions and initially he said he could not say anything and they were just having a break.

273.  Magdalene Chow said she went over to D4 by herself.  There was a lady who was not a journalist with D4.  Other reporters were somewhere nearby.  She had no idea whether Mr Clement was there.  Magdalene Chow asked D4 what protective custody meant, and D4 told her to look up the Witness Protection Ordinance, Cap.564, and also the Criminal Procedure Ordinance.  Magdalene Chow had never heard of the Witness Protection Ordinance and she heard it for the first time from D4.  She asked D4 whether he knew where Becky Wong was.  D4 said he did not know.  D4 said he had gone with a solicitor to the ICAC twice to look for Becky Wong, and an officer told D4 that he did not have an appointment and Becky Wong was not with them, and D4 could do whatever he liked.  Then D4 and the others had to go back into the court.”

141.  This is what the learned judge said about the second conversation:

“276. Magdalene Chow said when the people came out of the court again, she asked Mr Ryan what happened and he said he had to come back the next day.  She went up to D4.  There were also other reporters there, but she did not know whether Mr Clement was there.  D4 also said he had to come back at 3 pm the next day as he had to go to the District Court.  D4 said that Yam J granted the habeas corpus.  Then someone asked D4 a question, and D4 mentioned the WPP, and he also said the ICAC had authority to give certain witness protection, to change identity, to provide money and a flat to live in.  D4 also said:  ‘Eric Yang, ICAC Chief Investigator, was in charge of the WPP.’  Magdalene Chow said throughout that afternoon she noticed Eric Yang was outside court.  Eric Yang was known to the journalists and herself to be a senior ICAC officer, but she did not know that Eric Yang was in charge of the WPP.  Magdalene Chow asked D4 whether one was allowed to refuse to be a witness.  D4 replied that if the ICAC were surrounding you, you could do nothing else.  D4 said they had to come back the next day, and ICAC needed to bring Becky Wong to court to explain whether there was legal basis for keeping her.  Magdalene Chow asked whether they could choose not to bring her.  D4 said the ICAC had better offer a better explanation.”

142.  He concluded:

“659.   Upon careful consideration, I have no doubt that Magdalene Chow is a credible witness.  She stood by her evidence firmly.  I do not accept that she blamed D4 in order to save herself and the SCMP.  I accept her evidence of the two conversations with D4 on 15 July, and her notes related to the gist of the conversation with D4, and she did not repeat everything in her evidence …”

143.  The learned judge summarized the effect of the two conversations in paras. 661 to 662 of the judgment:

 “661.  In the first conversation which is the subject matter of the 4th charge, Magdalene Chow asked D4 about protective custodyand D4 mentioned the Witness Protection Ordinance.  Magdalene Chow further asked about Becky Wong and D4 spoke of his legal visit to the ICAC.  It must be borne in mind that the ex parte hearing before Yam J was in open court, and the name Becky Wong and the term ‘protective custody’ albeit in inverted commas as well as some background of the case were mentioned in open court.  Hence, by mentioning the Witness Protection Ordinance in relation to protective custody, D4 was effectively linking Becky Wong to the WPP.  The only irresistible inference is Becky Wong was a participant in the WPP.

662.    In the second conversation which is the subject matter of the 5th charge which took place after the first conversation, D4 explicitly mentioned that Eric Yang was the officer in charge of the WPP, the features of the WPP, and the ICAC had to bring Becky Wong to court to explain the legal basis of keeping her.  The only irresistible inference was Becky Wong was a participant in the WPP.”

144.  The learned judge then concluded:

“674. … With the disclosure of Becky Wong being in the WPP, mutatis mutandis, D4 did believe that Becky Wong was in the WPP notwithstanding he had instruction that Becky Wong wanted to leave the ICAC.  I find that he did intend to disclose when he made the disclosure to Magdalene Chow albeit not within the conspiracy of the 1st charge.”

145.  In Ms Chow’s statement to the ICAC she said the person who spoke to her in the first conversation:

“… was having a cigarette.”

146.  She said in cross-examination by Mr McNamara on behalf of Egan that she had a clear recollection that:

“The person (she) had a conversation with in relation to this was a person who had gone away to have a cigarette?”

147.  The uncontradicted evidence was that Egan never smoked cigarettes but that Clement was a cigarette smoker.

148.  Furthermore, at page 30 of her note book, she had written:

“I filed an application, an affidavit + annexed exhibit

I drafted copy document, writ of habeas corpus”

It was Clement who drafted or filed the relevant documents and not Egan.

149.  Another mistake she made in her statement was that she said Egan told her that the hearing had been adjourned to 3 pm the following day because he had to be in the District Court in the morning.  That was incorrect.

150.  So it was submitted on Egan’s behalf that her evidence that it was Egan who had spoken to her was unreliable.  But, it was Egan’s evidence that he had told Magdalene Chow when asked:

“Mr Egan, what is the witness protection scheme?

……

There is an ordinance that covers this.  It is Chapter 564 of the Law of Hong Kong.  I suggest that you go down to the library and read it”  Transcript 1527G. ”

Indeed, he had written to the Secretary for Justice in similar terms as early as 19 July 2004.  That being the case, I cannot agree the learned judge’s acceptance of Magdalene Chow’s evidence that it was Egan who had spoken to her can be faulted.

151.  The learned judge was aware of her mistake regarding the adjournment to 3 pm.  This mistake relates to the second conversation.  But this is not a matter on which one could overturn the learned judge’s acceptance of Magdalene Chow’s evidence regarding the second conversation.

152.  Mr Reynolds submitted that the learned judge has failed to demonstrate that he has properly evaluated the evidence.  In Oriental Daily Publisher Ltd v Commissioner For Television and Entertainment Licensing Authority [1997-1998] 1 HKCFAR 279 at 290, the Chief Justice said:

“Where there is a duty to give reasons, it must be discharged by giving adequate reasons.  What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.”

The Chief Justice further explained at 292, if the reasons given are:

“… conclusions rather than reasons”,

they are:

“inadequate to discharge the tribunal’s duty to give reasons …”

153.  Mr Reynolds complained that the learned judge had failed to make specific findings as to the precise terms of the disclosures.  He submitted the terms of such disclosures were critical on the two major elements of the offence, namely, intention and whether the act was merely preparatory.

154.  Ms Chow’s evidence was that:

“When I asked him about protective custody, he told me to look up the Witness Protection Ordinance and also Criminal Procedure Ordinance.” T783J   

155.  I have already quoted Egan’s evidence in para. 150 above.  He was not cross-examined on this.  The learned judge referred to this evidence in para. 529 as part of his narrative of Egan’s evidence.  I should add that during cross-examination, Magdalene Chow denied that was what she said.  She said she asked Egan what protective custody meant.  But the emphasis there was whether the reference to “protective custody” in her notes came from Egan’s complaint letter.

156.  It appears that no significance was attached to the differences between Egan’s evidence and Magdalene Chow’s evidence.  Mr Wilson in his final submission made no reference to it.

157.  Section 17 makes it an offence, without lawful authority or reasonable excuse, to disclose information about the identity or location of a person who is a participant in the WPP.  The point to note, is that the offence requires disclosure.

158.  In AG v Associated Newspapers Ltd [1994] 2 AC 238, the House of Lords was concerned with section 8(1) of the Contempt of Court Act 1981 which made it an offence “to … disclose” deliberations made by members of a jury in the course of legal proceedings.  An article was published in The Mail on Sunday newspaper which revealed the deliberations of a jury in the course of reaching their verdict in a criminal trial.  The article referred to accounts of three of the jurors as to how they had reached their decisions.  The information had been given to a journalist by a third party who had been in direct contact with the jury members.   In that context, Lord Lowry said, in a speech which had the concurrence of the other law lords, that in its plain and ordinary meaning:

“… To disclose is to expose to view, make known or reveal and in its ordinary meaning the word aptly describes both the revelation by jurors of their deliberations and further disclosure by publication in a newspaper of the same deliberations, provided always – and this will raise a question of fact – that the publication amounts to disclosure and is not a mere republication of already known facts.” [Emphasis added]

159.  I believe disclosure under section 17 should be construed similarly.

160.  This is of particular importance when one comes to the fifth charge.  If Egan had disclosed the relevant matters during the first conversation, the second conversation would simply be a republication of already known facts, and he could not be convicted on the fifth charge.

161.  Moreover, in deciding whether there had been relevant disclosure, one needs to consider whether Egan actually disclosed the fact that Becky was in the WPP and that he intended to do so.  I accept that disclosure can be made implicitly as well as explicitly (the “nudge-nudge wink-wink” situation canvassed at the hearing) but there must be cogent evidence of disclosure.

162.  If Magdalene Chow was already aware that Becky was in a witness protection scheme, but did not know under what law the scheme was constituted, it is doubtful whether the identification of the relevant legislation is a sufficient disclosure, though, depending on the precise circumstances, I would not rule out the possibility.  Nor do I think that where A discloses to B that C was in a witness protection scheme, he can escape liability under section 17 merely because A did not know that the scheme or programme was constituted under the WPO.  More importantly, one needs to ask whether in identifying the legislation the person did and intended to disclose the fact that a person was in the scheme.  In this context, I do not regard the fact that in the Ordinance, it was the WPP (“Witness Protection Programme”) and not the witness protection “scheme” a significant difference.

163.  In respect of both the question of disclosure and intention, the evidence of both Magdalene Chow  and Egan is important.

164.  In Mr Wilson’s closing submission, he said that Magdalene Chow:

“… said she was in no doubt that it was Mr Egan who mentioned the Witness Protection Ordinance, that Mr Egan identified Eric Yang as being in charge of the witness protection programme…”

Mr Wilson had not submitted that Egan’s evidence on the conversation quoted in para. 150 above should be rejected.  That may be because the requirement of disclosure was not properly appreciated at the time.  But any proper consideration of the fourth and fifth charges requires a correct appreciation of the nature of these charges.

165.  It is here that proper evaluation of the evidence is important.  Such evaluation must include a proper evaluation of Magdalene Chow’s knowledge.  Presumably, the learned judge proceeded on the basis that she knew Becky was in protective custody or in a witness protection scheme.  I will assume that it is the latter, since Egan’s evidence was not challenged in cross-examination and had not been expressly rejected by the learned judge.  If Magdalene Chow was already aware that Becky was in a witness protection scheme with the ICAC, I doubt the fact that Egan identified the legislation under which she was held would have amounted to a disclosure of information:

“… about the identity of a participant in the witness protection programme;”

166.  If Magdalene Chow already knew that Becky was in a WPP or scheme but did not know the exact statutory provision under which the programme or scheme was constituted, would the supply of such information run foul of section 17?  One might ask: if Egan had said in reply to Magdalene Chow’s query that she should go to the library to look up the law, and she did so and found the WPO, would that have been a disclosure under section 17?  Or, that he intended to do so?  I think not.  Also Egan’s state of knowledge of how much Magdalene Chow already knew might be important on the issue whether he intended to disclose the “identity” of Becky as a participant in the WPP.  Suppose Magdalene Chow, instead of asking Egan “what is the witness protection scheme” went directly to the library and, after telling the librarian, that she had been covering an application for habeas corpus regarding Becky and understood that she was in the witness protection scheme of the ICAC, asked the librarian what was the relevant legislation and was told that it was the WPO.  Would the librarian have committed an offence under section 17?  I think not and for several reasons, one of which is that he/she had not disclosed the identity of a participant in the WPP.  Suppose also, that Magdalene Chow, having solicited no response from Egan but wrote in her article that “This reporter believes that (Becky) is in the ICAC’s witness protective scheme”.  She might have committed an offence under section 17 although she was unaware of the WPO.  I will not multiply the examples.  I wish only to demonstrate the possibilities.

167.  These are matters which required proper evaluation and decision by the learned judge.  In fairness, I must say that no such argument had been addressed to the learned judge, but the failure to appreciate the requirements of section 17 is fatal to Egan’s conviction.

Lam, the 3^rd applicant

168.  I turn to consider Lam’s application for leave to appeal against conviction.  Lam was retained by Derek in the afternoon of 13 July 2004.  The learned judge found that on 13 July 2004, Derek and William Lau visited Lam at his offices at about 4 pm.  Presumably, it was on that occasion that Derek retained Lam to act for him.  Mandy joined them at Lam’s office at 5.39 pm and they left for Messrs Massie & Clement’s offices, arriving there at 5.59 pm.  William Lau was not called as a witness nor has it been suggested that he was a co-conspirator.  There is no evidence that Derek was already acquainted with Lam, although, according to Frankie Chung, in the afternoon of 12 July 2004, Derek said he needed to look for a famous barrister to defend him and in that context Derek mentioned the names of Lawrence Lok SC and Lam.  Lam, Derek and William Lau left Messrs Massie & Clement at 6.08 pm.  Mandy was left alone to give instructions to Clement.  There is no direct evidence that he knew of the falsity or sham in the series of acts alleged.

Did the 3^rd applicant know of the sham?

169.  There was no direct evidence that Lam knew that Becky or Frankie Chung was untruthful.  In Frankie Chung’s affirmation he said:

“4.     … [PW1] was scared and was uncomfortable with her situation.  That she didn’t want to be there.

……

7.      As matters stand Ms Wong has asked to see a lawyer.  I believe she is in the custody of the ICAC although I do not know where.  I believe that she has been held in excess of 48 hours and thus any restraint without her consent is unlawful.  We have not been told that she has been charged.”

170.  Frankie Chung gave evidence under immunity.  It was not his evidence that he had told Lam that what he said in the affirmation was untrue.  The learned judge acquitted Egan because he was not aware that Frankie Chung was untruthful.  Lam did not meet Derek until 4.12 pm on 13 July 2004, and he met Mandy for the first time at 5.59 pm, 17 minutes before he took her to consult Messrs Massie & Clement.  Whilst at Messrs Massie & Clement it appeared that after the making the introductions, he left Mandy with Clement.  By 5.59 pm, instructions were taken from her by persons who were not alleged to be co-conspirators.  The instructions were given without any intervention by Lam.  Thus, if Lam was party to an agreement that false representations were to be deployed, he would have had to agree to that course of conduct some time between 4.12 pm and 5.59 pm on 13 July 2004.  It is to be noted that earlier on 11 July 2004, Peter Lai, a solicitor had been instructed to visit William Lau and Becky at the ICAC but that he was only able to see William Lau but not Becky.  It appears therefore that the idea of retaining a lawyer to visit Becky at the ICAC was known to Derek prior to the engagement of Lam.

Nattrass

171.  Lam’s conviction essentially depended on the evidence of Aaron Patrick Nattrass (“Nattrass”) (PW7).  Apart from Nattrass’s evidence the case against Lam is substantially the same as the case against Egan.  Nattrass was the managing clerk of Messrs Massie & Clement, and had been in that position for about ten years.  The prosecution relied heavily on Nattrass’s evidence on the conversation that he had with Lam on 30 August 2004 in which Lam allegedly made certain incriminating statements.  Both Lam and Nattrass were at Egan’s flat for a buffet supper that evening and the conversation was supposed to have taken place at the dining table whilst the other guests were in the balcony.  The contents of the conversation were reported by Nattrass to Mr Bishop of the ICAC on 7 September 2004.  There is a 40-page transcript (referred to in cross-examination but not produced) of that meeting.  Later on 22 September 2004, a statement (also referred to in cross-examination but not produced) was taken from Nattrass by the ICAC which he had signed.  The learned judge relied on three incriminating statements which Lam had allegedly made in his conversation with Nattrass.

The 1^st incriminating statement

172.  It will be recalled that in Mandy’s affirmation she said Becky was her business partner and that she held 30% of the shares in Ever Brilliant.  This was particular (a) in the perjury charge against Mandy.  The prosecution has conceded that this particular cannot be maintained.  According to Nattrass, he confronted Lam with the fact that as at the date of Mandy’s affirmation, Becky was not registered as a shareholder in Ever Brilliant.  In response, Lam allegedly said she had forgotten her lines.

173.  In para. 561, the learned judge said:

“561. The fact remains that Becky Wong was not a 30% shareholder of Ever Brilliant formally because the transfer was not duly stamped and registered. …”

With respect, that is not correct.  The fact that it has not been stamped may affect its admissibility as evidence.  But the liability to pay stamp duty presupposed the transfer of the beneficial interest.  The learned judge went on to say:

“574. Granted that Becky Wong said she had signed the instrument of transfer in Ever Brilliant, but the shares transfer was not duly registered.  It is a fact that the company search did not reflect any shareholdings by Becky Wong.  D3 said Becky Wong was only recently brought into the company and the annual return would not reflect that, and D2 had forgotten her lines.  There is no inconsistency between D2 might have regarded Becky Wong as a business partner and the company search did not reflect that Becky Wong was a 30% shareholder.  Seen in this light, it is not inherently improbable that D3 said D2 had forgotten her lines.

174.  But what were the “lines” which Mandy was supposed to have forgotten?  That Becky was only a 30% shareholder in equity but that legal title had not vested in her?  But legal title in shares (which are choses in action) does not depend on the filing of an annual return under section 107 of the Companies Ordinance, under which particulars relating to members are required to be stated.  The transferee becomes a member of the company upon registration in the company’s register of members (Section 28(2) Companies Ordinance).  According to Pennington’s Company Law, 8^th Edition, at 416:

“It has often been assumed in judicial reasoning that the legal title to registered shares does not pass to the transferee until the transfer is registered in the company’s register of members.  When he has presented the transferor’s share certificate and the instrument of transfer to himself for registration and has fulfilled any other conditions set out in the company’s articles of association or the terms of issues of the shares, the transferee has a legal right against the company to have the transfer registered, but until the transfer is actually registered, it has often been assumed judicially that the title to the shares is still inchoate, and that the legal title vested in his transferor.”

The learned author then mentions another view that legal title passes from the transferor to the transferee by virtue of the executed share transfer and the delivery of the transferor’s share certificate.  In the end, it does not matter which view is correct.  It is sufficient for present purposes to say that the transfer of the legal title did not depend on the registration of the annual returns under section 107.  I should add registration of transfer of shares per se is not required, nor would the validity of the transfer depend on it.

175.  It is highly improbable that Mandy would have been aware of such legal niceties, had told Lam that Becky was possibly only an equitable as opposed to a legal owner (assuming that legal title would only pass on registration in the company’s register of members and that had not taken place) and that Lam had advised her to say that Becky was only an equitable owner, hence, the forgotten line.  With respect to the learned judge, he has failed to recognise the claim by Nattrass that Lam had said that Becky had forgotten her lines, far from being “not inherently improbable”, did not make sense.

176.  Moreover, the learned judge has failed to weigh the possibility that this conversation was an invention of Nattrass.  Nattrass personally attached great significance to the fact that Becky was not a registered shareholder of Ever Brilliant.  He had caused Messrs Massie & Clement to search Ever Brilliant and passed the result to the ICAC.  According to Clement, he had this conversation with Nattrass in September:

“A.      Yes, there was a conversation, me and Massie was in my room, it was sometime in September, Nattrass came in announcing that his, I think, friends at the ICAC could show that the client’s affidavit wasn’t true. I asked him why that should be so. …

……

A.        Oh, yes, I mean he was just misreading it. And he bolstered that by saying that he’d made his own company search, but the point was nonsense.

Q.       And did he, in that conversation, with words to this effect, ‘Well, anyway, the bitch or the bastards are going down ... ’

A.        ‘The bitch is going down,’ is what he said, yes.

Q        …  or something of that nature.

A.        ‘The bitch is going down,’ was the exact words he used.”

The 2^nd incriminating statement

177.  The 2^nd statement is that Lam told Nattrass to tell Massie not to worry because Mandy had been paid, and she would shut up and say nothing to the ICAC.  This is the critical statement in relation to which the learned judge said:

“634. … I have accepted Aaron Nattrass as a truthful witness.  D3 would not have told him that D2 had been paid and she would not say anything to the ICAC unless it was true.  … And as to the inference on D2 being paid and would not say anything to the ICAC, why would a lawyer be told this unless he was in it together all along?  That is the only reasonable inference.”

Ms Clare Montgomery, QC rightly submitted:

“This is the only evidence that the Judge identifies as justifying the inference that Lam believed ‘all along’ that Becky was not illegally detained (assuming that is what is meant by ‘in it all along’). …”

Unless it was true

178.  But was it true?  If she had been paid, it is improbable that the payment would not have been traced.  It was the prosecution case that she had been paid.  The prosecution adduced evidence to show that there had been payment in the form of a used Mercedes Benz car.  But the learned judge rejected that and said:

“204. … However, according to PW15 Li Suk-lim, a car sales man, he agreed that around June 2004, Derek and Mandy went to visit him to look at a white car; they did not buy this car but looked at other cars as well. June 2004 predates the conspiracy charged, therefore any gift of a car from Derek to Mandy cannot have been causally connected to the conspiracy.”

So, there was no evidence that she had been paid.  Nor did the learned judge find otherwise.  That being the case, the learned judge’s statement that Lam would not have told Nattrass that Mandy had been paid unless it was true is puzzling.  If the statement attributed to Lam was untrue, or not to have been proved to be true, that should go to Nattrass’s reliability and the learned judge ought to have realised that to be so.

179.  It is also to be noted that Nattrass agreed in cross-examination that his allegation that Lam said Mandy had been told on her return to answer bail to keep quiet and to shut up was not in his statement to the ICAC, which was based on the tape recorded meeting with Mr Bishop of ICAC on 7 September 2004.

180.  It is also not clear what Massie was supposed to have to worry about.  There was no suggestion that Massie was party to any conspiracy.  Massie’s involvement in the matter was brief and clearly captured in his note to Clement.  He went on leave on 14 July 2004 and his only contact with Lam was the telephone conversation when the case was referred to his firm by Lam.  Although Massie had given a statement to the prosecution, he was never called.  It was never suggested that Massie was aware that Mandy was
Derek’s girlfriend.  Nor that Mandy had told either Massie or Clement she was Derek’s girlfriend.  So what was it that she might have said to the ICAC (had she not be paid off) which might have incriminated either Massie or even Clement in relation to that?  It was suggested that the learned judge had in mind that Massie might be worried for his firm’s sake, because if Clement was in trouble, that might reflect on Massie and Clement.  The learned judge did not say so and I do not speculate on this.  But again there was nothing in the evidence to suggest that Mandy could incriminate Clement.  Clement’s draft letter was a model of moderation.  Nor could he be blamed in any way for the subsequent actions.  Moreover the conversation about the relationship between Mandy and Derek was also not mentioned in his statement to the ICAC on 22 September 2004 (Transcript 695).  I regret to say Nattrass’s evidence was taken on its face value without sufficient regard to whether the alleged statement made sense or was inherently probable.

The 3^rd incriminating statement

181.  The 3^rd incriminating statement is that Lam had asked Nattrass to tell Massie to say nothing to the ICAC and in particular, not to say that he had referred Mandy to Massie and Clement.  The gist of Nattrass’s evidence on this can be gathered from the following exchange during Nattrass’s evidence:

“Court: So the question is, ‘Did Mr Lam say in his own mouth that “Tell Massie not to say I have brought the case to Massie & Clement.”’ I think that’s the question, isn’t it?

A: Yes.

Court: Did he say that?

A: Yes.”

ICAC letter to Massie

182.  It is necessary to put this evidence in context.  According to Nattrass the conversation started with Lam asking him “about the letter that the ICAC had written to Mr Massie on 26 August” (Transcript 653).  The letter was referred to in cross-examination and in the Reasons, though never formally produced.  But the learned judge proceeded on the basis that Lam was aware of the contents of the letter.

183.  The reasoning of the learned judge should be examined against this letter.  The letter was addressed to Massie personally and was marked “private and confidential”.  It is dated 26 August 2004.  It reads:

“As you know, the ICAC is currently conducting a criminal investigation into offences of conspiracy to pervert the course of public justice and breaches of Section 17 of the Witness Protection Ordinance. I think you are aware that, during your absence from Hong Kong, your partner, Mr. Richard Clement, was interviewed and provided information to the ICAC in respect of the investigation. We now seek additional information from you, and I understand that, at a meeting with ICAC Chief Investigator, Mr. Robert Nash, on the morning of Thursday 19 August 2004, you indicated that you would like the questions we intend to put to you set down in writing so that you can consider them, and if necessary take advice before answering them. In that connection, I now enclose a list of the core questions in respect of which we would like answers from you. In the event that you are prepared to answer the questions, I would appreciate it if you could make your answers as comprehensive as possible in order to limit any subsequent need on our part to seek further clarification or elaboration from you.

If you wish to discuss any of the matters concerned, or to seek clarification on any of the written questions, by all means speak to Mr. Nash, who can be contacted on telephone number 2826 4767.

QUESTIONS

It is understood that, during Tuesday 13 July 2004, in your capacity as a solicitor with Messrs Massie & Clement, you spoke to one or more individuals, either by telephone or in person, concerning a Miss Mandy CHUI, which resulted in your later passing certain information to your partner, Mr. Clement.

1.      With which individual(s) did you speak in this connection? (please specify whether by telephone or in person)

2.      What information did the individual(s) impart to you and what action, if any, were you requested to take?

3.      Did you agree to take any action in response to the request(s)? If so, what action?

4.      Did you make a handwritten note of the content of your discussion(s) with the individual(s) concerned?

5.      Does any such handwritten note now form part of your firm’s file on this matter?

6.      What action did you eventually take in response to the above request(s)?

7.      What information, precisely, did you pass to your partner, Mr. Clement, subsequent to your discussion(s) with the individual(s) concerned?

8.      As a consequence of any discussion(s) referred to above, did you instruct a barrister at law to act for Messrs Massie & Clement in connection with the matter concerning Miss Mandy CHUI? If so, whom did you instruct to so act?

9.      Is there anything you would like to add to your answers to the above questions?”

184.  As the letter of 26 August 2004 made clear, Clement had been “interviewed and provided information to the ICAC …”.  He would have told the ICAC that Lam went with Derek, Mandy and William Lau on 15 July 2004.  That was his evidence at trial.  Moreover, the letter clearly stated that it was understood that on 13 July 2004, Massie had spoken “to one or more individuals concerning (Mandy), which resulted in your later passing certain information to (Clement)”.  That being the case, what was the point in telling Massie not to say that Lam had referred the case to Clement and Massie?  Also given Lam’s experience as a criminal lawyer, he would have been aware that the ICAC would have obtained the CCTV recording of his offices as well as Massie and Clement’s offices.  The evidence was that movement in and out of Lam’s and Massie & Clement’s offices were captured on CCTV.  What was the point in telling Massie not to tell the ICAC, if Clement had already told the ICAC and Lam’s presence was recorded on CCTV?

Conclusion on the incriminating statements 

185.  The learned judge regarded these statements as not “inherently improbable”.  He relied on them in convicting Lam.  I do not believe the learned judge’s reliance on these statements is justified.  Since the learned judge relied heavily on such evidence in convicting Lam, on this ground alone, I would quash his conviction.

Reliability of Nattrass

186.  In case I am wrong on my understanding of the “incriminating” statements I turn to consider Nattrass’s reliability as a witness.  Having regard to the importance of Nattrass the learned judge devoted over three pages of his judgment on him starting from para. 350 and concluding in para. 361.

187.  It was Nattrass’s evidence that at T679:

“A.    I don’t have a role as a registered informant. What I said, and I’ve said along, it’s on a confidential basis. I inform (the ICAC) about things that they needed to know.”

Also that, at the end of August 2004 or beginning of September, he was furnishing documents secretly to the ICAC that were taken from the firm’s files, e.g. 2 cheques relating to payment of fees by Mandy.  He had also supplied a copy of the company search on Ever Brilliant.

188.  In para. 571(8), the learned judge recorded the defence submission which included:

“(8)   He had made a multiplicity of complaints and suits, even against the ICAC, and is in fact a vexatious litigant, and hence is unworthy of belief.”

It is not clear from the Reasons whether the learned judge accepted these criticisms of Nattrass.  Since the evidence came from Clement, whom the learned judge had regarded as a truthful witness, if the learned judge had rejected such evidence, I believe he would have said so.

189.  The evidence of Clement on Nattrass provides a useful insight into Nattrass’s character, I will quote the relevant evidence in full:

“Q.    He left the firm - and I’m using a neutral term - in May of last year.

A.      Yes.

Q.     And in recent times has there been serious unpleasantness between Mr Nattrass and you, your partner and the firm?

A.      Yes, he’s made about 20 criminal complaints, I think, perhaps a few more, I’m not sure.

Q.     Well, I’m going to go into some of those in due course. Do you now know that man to be a busybody?

A.      That would be a fair description, yes.

Q.     A troublemaker?

A.      I would say so.

Q.     A person with a ...

COURT: Sorry, one moment, ‘busybody and troublemaker’. Yes.

Q.     A man with a highly vivid and fertile imagination.

A.      I would say so.

Q.     A person capable of making up wild stories.

A.      Certainly, in my view of all his criminal complaints, yes.

Q.     An expression that you and I will be familiar with, but I’m not sure that it translates ...

COURT: Sorry, just one moment. These are criminal complaints against your firm?

A.      Yes.

COURT: And against you, personally.

A.      Well, against me and Massie personally, yes.

Q.     His Honour will be familiar with the phrase but I’m not sure that it translates into Cantonese, would you describe him as a ‘Walter Mitty’ character?

A.      That would be a fair description, I think.

Q.     Someone who lives in a dream world.

A.      On occasions, I would think so, yes.

Q.     Now, pausing there, for a moment.

……

Q.     Mr Clement, before that break you were telling us that you have been the subject of complaints of a criminal nature made by Mr Aaron Nattrass.

A.      Yes.

Q.     Would it be correct to say that there have been a multiplicity of complaints?

A.      I think he’s at more than 20 at the moment, yes.

Q.     In summary, can I put this to you, he has made complaints against you and/or your partner, and/or your firm of fraud, perverting the course of justice, assault, criminal intimidation, tax fraud and breaching the Witness Protection Ordinance, which is Cap. 564 of the Laws of Hong Kong.

A.      Yes, that’s right, and a lot more.

Q.     These complaints are both spiteful and vindictive.

A.      I would say so.

Q.     And that he has told you and your partner, both to your face and to others that he’s going to have you sent to jail.

A.      Oh, yes.

Q.     To your knowledge, has he also in recent years made complaints of a criminal nature against counsel?

A.      Yes.

Q.     Against other solicitors?

A.      Yes.

Q.     Against security guards and supermarkets, more than once?

A.      Yes.

Q.     Even against ICAC officers.

A.      Yes, and also against consulting physicians as well.

COURT: Also about?

A.      Consulting physicians.

Q.     To your knowledge, has he also made complaints, not necessarily to the police, against at least one High Court judge?

A.      Yes, he did, yes.

Q.     Solicitors, counsel?

A.      Yes, immigration officials and ...

Q.     Immigration officers.

A.      Yes. Legal Aid officers, Legal Aid solicitors.

Q.     To your knowledge, has he manipulated others formerly employed by your firm to make similar complaints?

A.      Yes, we’ve also had a number of complaints made by ex-members of staff that to my view were very much creatures of Mr Nattrass.

Q.     Is it your understanding that Mr Nattrass makes these complaints on a regular basis at Central Police Station where they must be sick of the sight of him?

A.      Yes, and also to the MPF, and the Labour Authority and various other places, I believe.

Q.     Have you now been given to understand that, on legal advice, the police are no longer taking his complaints seriously?

A.      I think there are still a few that they’ve not got round to finalising yet but certainly in respect of about 15, and I think there’s another recent tranche that haven’t yet been yet finalised, those are the ones I know of.

Q.     I think not all of those complaints were made after he left your firm, some were made before.

A.      All the ones against me and Massie I believe to have been made afterwards.

Q.     Did he make a complaint of assault against one of your associate solicitors in December 2004? I think a gentleman by the name of Keith Chan(?).

A.      I think it was a bit earlier than that. It was in the summer of 04. He had an argument with Keith, who was a solicitor then employed. As a result of that he made a complaint of assault against Keith to the Central Police Station, and he also got his female assistant, a Miss Sanpanga(?) to complain against Mr Keith -- Mr Chan to the Equal Opportunities Commission for some reason.

Q.     Let’s not overplay it and let’s not go into too much detail. To your knowledge, has he also brought more than one private prosecution in one case against an ICAC officer, in another case I think against staff of the New Zealand Consulate General.

A.      So I understand, yes.

Q.     Most, if not all of which have been thrown out.

A.      I think they’ve all been thrown out. 

Q.     Has he at any stage during the last 12 months boasted or bragged to you of a new special relationship that he enjoys with the ICAC?

A.      Yes, yes.

Q.     Have you heard him referring to the ICAC as ‘his boys’?

A.      Similar phrases, yes.

Q.     Telling you that he’s going to have the ICAC ‘storm your office’?

A.      Oh, yes, yes, I do recall that. ‘His friends’, I think it was, rather than ‘his boys’.

Q.     ‘His friends’. Has he let you know directly or indirectly that he, himself, is a protected witness under the Witness Protection Ordinance?

A.      Am I in a position to answer that, your Honour?

COURT: You may answer that.

A.      He hasn’t told me in terms but he has made it very obvious to me, to Mr Massie and a number of members of my staff.

Q.     Albeit that a person who is a participant in the scheme, if he discloses his participation, himself commits a criminal offence.

A.      Yes, he hasn’t used the exact words, but he’s made it very obvious.

Q.     The next few questions I have to ask you are a little distasteful and I’m going to pass over them as quickly as I can. Has Mr Nattrass boasted to you that he has had sexual relationships with three members of your staff and a number of clients?

A.      Yes, he has, but I’m not prepared to say who the people are.

Q.     Of course not. On Mr Nattrasses’s departure from your firm, did you have cause to examine the desktop computer that was in his use while he was with your firm?

A.      Yes, we obtained a forensic report through a forensic expert.

Q.     Well, I’m not going to go into any more detail than is absolutely necessary and perhaps we can cut it short by dealing with it in this way, was some 60,000 pornographic pictures found on his computer?

A.      Yes.

Q.     And do you have reason to believe that he was downloading pornography using the office computer in office hours?

A.      Yes, he was. They were the ones that were marked to ‘favourites’, that somebody had downloaded them onto that site.

Q.     And some of them requiring payment of a fee to download.

A.      Yes, yes, indeed.

Q.     Again, without going into too much graphic detail, the materials, were they downloaded from websites which concern themselves with matters of spanking backsides of Asian girls?

A.      That seemed to be his main interest, yes.

Q.     Are you, yourself, aware of intimate relationships that he has had with his own domestic helpers?

A.      With two, his last two domestic helpers, yes.

Q.     I raised with you a short while ago, the term, ‘Walter Mitty’, the dream world part of Mr Nattrasses’s personality.

A.      M’m.

Q.     Has he, to you, boasted of acts of chivalry and bravery that he performed whilst apparently he was in the New Zealand army reserve?

A.      Yes, he has, yes.

Q.     Did he tell you that he was wounded in action in the jungles of Cambodia when he received gunshot wounds?

A.      Yes, he did, yes.

Q.     For which he was treated -- apparently airlifted out of Cambodia and treated in the Philippines for gunshot wounds.

A.      So he says, yes.

Q.     Mentioned in dispatches.

A.      So he says, yes.

Q.     Has he held himself out to you to be a former law enforcer in the employ of the New Zealand police force?

A.      Yes, he expressed himself to have been at one stage a policeman in Auckland, I think.

Q.     And has he told you that he personally made the arrests in the ‘Rainbow Warrior’ incident, which many of us can remember which I think took place in the 1980’s?

A.      Yes, yes, he did.

Q.     That he was the arresting officer in that case.

A.      He did tell me that some years ago, yes.”

In para. 571 of the judgment, in relation the submission that:

“571. … Aaron Nattrass lied or was at least wrong or incredible in his evidence …”

the learned judge said:

“579. Nattrass admitted he was no saint when being cross-examined on pornography.  I dare say if he were a saint, it would hardly be inherently probable that anyone would have told him things in the nature of what he had given in evidence.”

190.  Nattrass’s interest in pornography has less relevance to his reliability as a witness than the fact that he had made many unfounded allegations against many different people.  The learned judge’s reference to Nattrass’s interest in pornography to the exclusion of other matters which bore directly on his reliability as a witness showed, with respect, insufficient appreciation of the importance of this other evidence on his reliability.  In relation to these matters a proper evaluation of the evidence is essential.

191.  The learned judge also regarded as important that:

“578. … … apart from his concern for the reputation of Massie & Clement, he had nothing to gain but everything to lose in being a witness in this case.”

192.  Nattrass professed concern for the reputation of Messrs Massie & Clement.  But the many complaints that he had made about them after his employment throw doubt on whether he was ever genuinely concerned about the firm.  Moreover, it is difficult to understand how his conduct could be explained by his alleged concern for the reputation of his employers.  As noted, he had supplied the firm’s documents in secret to the ICAC.  In other words, he was informing on the firm’s client.  The right to confidential legal advice is a fundamental human right and is protected by legal professional privilege, Regina (Morgan Grenfell & Co Ltd) v. Special Commissioner of Income Tax and Anor [2003] 1 AC 563.  As was explained in Solicitor v Law Society of Hong Kong [2006] 9 HKCFAR 175, legal professional privilege “is not the privilege of the lawyer but of his client”, and that in Hong Kong, it is a constitutional right.  It is difficult to imagine a more gross breach of duty.  In the circumstances of this case, it is totally inexcusable and cannot be explained away by Nattrass’s alleged concern for the reputation of Messrs Massie & Clement.  Such aberrant conduct on the part of Nattrass cannot be so easily disregarded.

193.  The learned judge went on to say:

“578. … He had no motive to lie against D3 and D4, other than it was suggested that he was not a normal person.  But as said before, he had been the managing clerk for Massie & Clement for almost 10 years.”

194.  The fact that he had been a managing clerk for a number of years supports the view that he is a normal person.  But a normal managing clerk would not inform on the client of the firm or pass documents relating to the firm’s client to the ICAC in secret.  Nor, with respect, is that a sufficient answer, having regard to the evidence about the unfounded complaints against all and sundry that he was in the habit of making.

195.  The learned judge’s conclusion on Nattrass can be found at paras. 578 to 580:

“578. It was suggested that Nattrass combined and embellished evidence from different sources.  He has been reminded not to mix what he heard with what he thought.  He was subject to strenuous cross-examination and he stood by his evidence on the conversations with D3 and D4.  It is important to note that apart from his concern for the reputation of Massie & Clement, he had nothing to gain but everything to lose in being a witness in this case.  He had no motive to lie against D3 and D4, other than it was suggested that he was not a normal person.  But as said before, he had been the managing clerk for Massie & Clement for almost 10 years.

579.  Nattrass admitted he was no saint when being cross-examined on pornography.  I dare say if he were a saint, it would hardly be inherently probable that anyone would have told him things in the nature of what he had given in evidence.

580.  I bear in mind that Nattrass had been feeding the ICAC with information when the conversations with D3 and D4 took place.  I also bear in mind his character and treatment by the ICAC as a witness in this case.  I am left in no doubt that Nattrass has been telling the truth about the conversations with D3 and D4.  Although his witness statement was taken some time later, I did not have any doubt as to his reliability to recount the events.”

196.  With respect to the learned judge, for whom I have the upmost respect, I do not believe that he has sufficiently evaluated Nattrass’s reliability.  The conclusionary remarks in para. 580 are not an adequate substitute for a proper evaluation.  So even if my analysis of the “incriminating statements” is not correct, I would quash Lam’s conviction since it was based on unreliable evidence.

Other adverse inferences

197.  The learned judge appeared to have drawn inferences adverse to Lam on the basis of his own analysis that the possibility of conflict of interest was not a tenable explanation for Lam’s decision not to act in the application for habeas corpus.  With respect, whilst it is possible to say that technically speaking, if the 3^rd applicant had acted in the application, there would be no conflict of interest in the application itself, the potential for conflict is obvious.  Suppose on gaining access to Becky, she asked, “The ICAC has offered me the chance of being an immunised witness.  Should I accept?”the 3^rd applicant would have been in an impossible position of conflict.  It is not fanciful to think that a person in a position of Becky would want to know whether it will be in her interest to cooperate with the ICAC, and if she were to do so, what would be the best term that she could get from such cooperation?  It will be recalled Frankie Chung visited Derek on 10 July 2004 and attended Derek’s interview by the ICAC on 11 July 2004.

198.  There is also force in Ms Montgomery’s submission that if Lam were a conspirator, it is much more likely that he would have sought to act in the case in order to keep control of it.  Indeed, if he had conspired with Derek so as to influence Becky, it made no sense for Lam to manufacture a situation where it was not him but Egan or Messrs Massie & Clement who would gain access to Becky.  That might provide Becky with access to independent legal advice, but it would provide no opportunity to the conspirators to threaten, bribe or otherwise influence her.  Nor should one ignore the positive impact which Egan’s acquittal should have on Lam.  As I have said, apart from Nattrass’s evidence, there is no substantial difference between Egan and Lam.

199.  The prosecution suggested that the conspirators might have wanted Lam to act behind the scenes to avoid the application for access being connected to Derek.  But, Frankie Chung filed an affirmation in the habeas corpus and instructed Egan to visit the ICAC on 14 July 2004.  Also Frankie Chung had visited Derek on 10 July 2004 and accompanied him when he was interviewed by the ICAC on 11 July 2004.  The evidence also shows quite clearly that the ICAC officers Lim and Matchy Mak heard Egan’s mobile rang and heard him say:

“Andrew, I’m talking to the ICAC officers. Don’t call me. I’ll call you.”

And that after hanging up, Egan said,

“It’s Andrew Lam Ping-cheung.  He is not patient.”

Egan made a similar open reference to Lam’s involvement while he was with Mr Ryan on 14 July 2004.  Mr Ryan said Egan received a phone call and talked to someone called ‘Lammy’, after hanging up, Egan said to him:

“Andrew Lam is a bloody nuisance.”

Moreover, Mr Ryan said to Yam J on 15 July 2004 the ICAC:

“… have information that this whole application may well have come from one of the major parties involved in this investigation”.

200.  At paragraph 407 of his Reasons for Verdict the judge said:

“D1 told Frankie Chung to accompany D4 to make the second legal visit at the ICAC.  Frankie Chung made excuses and suggested D3 to do it, but D1 said, ‘You do it.  I will be assured if you do it’, and ‘As I ask you to do it, you just do it.’ The fact remains that the instruction for the second legal visit was given and carried out without Becky Wong ever calling Frankie Chung again asking for legal representation.  Assuming Frankie Chung to be credible, this is an inference of knowledge of the sham against D1 and D3.

I find this reasoning difficult.  I do not understand how this conversation can support “an inference of knowledge of the sham” against Lam.

201.  On 15 July 2004 Lam had lunch with Mrs Reimer Lau and Mr Martin Yeung (his former trainee solicitors) at Grissini’s .  The learned judge dealt with the Grissini lunch in paras. 332-339 of the Reasons.  In para. 338, the learned judge related the evidence of Mr Yeung.  According to Mr Yeung, Lam:

“338. … said the ICAC was in the wrong in getting hold of the girl surnamed Wong.”

Also Lam had compared Becky with Angela Gong, a person who had allegedly been kept by the ICAC against her will, and whom Lam had managed to “save”.  The evidence regarding the Grissini lunch led the learned judge to conclude:

“631. As to the fact that D3 told Mrs Reimer Lau and Martin Yeung that he planned the habeas corpus and would switch on all the machines to expose the abuse of the ICAC, I find that D3 did plan the habeas corpus and switch on all the machines, meaning involving the press.

632.  Carmen Hsu rang D4 so soon after the first legal visit and knowing his lack of success.  Given the pattern and timing of telephone calls between D3 and D4, the only reasonable inference was D3 had told Carmen Hsu about it, and she was referred to D4 for more details.  D3 was using Carmen Hsu as part of the machines at his disposal.  The result of involving the press was achieved notwithstanding D4 was not in the conspiracy.”

202.  These findings should be read with particular (d) in the conspiracy charge (see para. 8 above).  It is to be noted, however, that the sting of particular (d) is the false representation that Becky was being unlawfully detained.  So merely involving the press is insufficient.

203.  The learned judge recognized the conflict between what Lam said at the Grissini lunch which suggested that Lam believed Becky was held against her will and the incriminating statements he had allegedly made to Nattrass.  In para. 581 of the Reasons he said:

“581  … As to the conflict between what D3 said during the Grissini lunch and to what he told Aaron Nattrass, I shall deal with the matter later.”

The learned judge did not return to the matter or solve the apparent conflict.  That is ground 16 of Lam’s grounds of appeal.  I believe it is clear that the Grissini lunch was not evidence that Lam believed or knew that Becky was not held against her will.

204.  These adverse inferences are not in any event sufficient to support Lam’s conviction.  Nor had the learned judge said that in the absence of Nattrass’s evidence which he accepted, he would have convicted Lam.

205.  The learned judge found that Mandy did not believe that Becky was held against her will by the ICAC, and that Mandy realised that what she said or omitted to say in her affirmation of 15 July 2004 amounted to deliberate falsehood.  But there is no evidence that Mandy told Lam that she had indeed been untruthful.  So there is no direct evidence that Lam knew that the application was a sham.

206.  Para. 634 is critical to the learned judge’s conclusion that Lam was guilty:

“634. … I reject that D3 believed Becky Wong was illegally detained by the ICAC.”

207.  Ms Montgomery submitted that as a solicitor, the rule applicable to Lam was clear.  As a solicitor if he had doubts about his instructions or even a belief that they might not be true, provided he did not know those instructions were false, he was entitled to act on them.

208.  There is no duty upon a solicitor (or a barrister) to enquire whether the person giving him instructions or providing him with material is telling the truth.  This is confirmed by the commentary in The Hong Kong Solicitors’ Guide to Professional Conduct in relation to principle 10.03, which prohibits knowing attempts to deceive or participate in the deception of a tribunal.  The Guide comments:

“2.     In general, there is no duty upon a solicitor to enquire in every case where he is instructed as to whether his client is telling the truth …

3.      When it has come to the knowledge of a solicitor that a client intends to mislead the court by making false statements or producing false evidence, the solicitor has a duty to advise the client not to do so … If the client refuses to accept his advice, the solicitor should cease to act.” [My emphasis]

“4.     If, either before or during the course of proceedings, a client makes statements to his solicitor which are merely inconsistent, this is not of itself a ground for the solicitor to refuse to act further on behalf of the client.”

Insofar as the learned judge relied on Lam’s belief, as opposed to knowledge, with respect, he was wrong.

Mandy, the 2nd applicant

209.  Her conviction turned on the learned judge’s finding that she knew that the evidence that Becky was involuntarily detained by the ICAC, was false.

210.  The learned judge said in para. 430 of the Reasons:

“430. As to whether the seeking of access and the application for habeas corpus have the tendency to pervert the course of justice, the right to seek legal access and to apply for a habeas corpus cannot admit an abuse of the process in making the application where the ground that the person was illegally detained and she wanted to seek release was a sham.  D1 told Frankie Chung that Becky Wong was a fragile person or terms to that effect.  And D2 must have known Becky Wong’s disposition by virtue of the sisterly friendship.  Becky Wong said she did cry and consider leaving the WPP because of all the trouble when she was told that someone had applied for habeas corpus on her behalf.  Assuming the witness to be credible, the inference is that D1 and D2 intended to influence Becky Wong not to co-operate with the ICAC, and the acts did have a natural tendency to influence her.”

211.  So the learned judge was saying that in relation to Derek and Becky the false application was the means by which they intended to put pressure on Becky.  The conspiracy charge, especially particulars (b) and (c), alleged the doing of a series of acts each of which involved falsity or sham.

212.  Hence, it is a case of using unlawful means to put pressure on a witness.  That is unlawful.  I do not agree with Mr Jonathan Caplan QC that the means were not unlawful.

213.  I turn to consider the learned judge’s finding that Mandy knew that the:

“430. …. ground that [Becky] was illegally detained and she wanted to seek release was a sham.”

214.  In that regard the learned judge relied heavily on the evidence of Becky, in particular, that Becky told Mandy during their telephone conversations that she was “safe and sound”.  The first took place on 11 July 2004 which had been taped by the ICAC.

215.  The learned judge said:

“180. In her statement dated 14 July 2004, Becky Wong stated that she was accompanied by the ICAC of her free will, and she did not ask her family or anyone to apply for habeas corpus. She said late at night on 12 July, she rang D2 and told her she was safe and sound. …

……

562.  I have absolutely no doubt that Becky Wong is a credible witness.  I accept all her evidence, and in particular, I find that she stayed with the ICAC voluntarily, she told D2 that she was OK once and that she was safe and sound, meaning safe and all right, or nothing to worry about, on the telephone on 11 and 12 July.  I find there is no inconsistency in Becky Wong’s evidence with the official translation of “safe and sound”.  She never asked D2 or Frankie Chung to get her a lawyer or to get her out of the ICAC, or she did not know where she was.  She never told D2 that her phone and SIM card was confiscated by the ICAC, or she was not allowed to speak on the phone, or she had no close family members in Hong Kong.  She signed the MOU on 13 July.”

216.  Here, I do not believe there are substantial grounds to impugn the learned judge’s finding which are essentially based on his assessment of Becky’s evidence.

217.  Following his finding at paras. 365, 430 and 431 that Mandy had knowledge or belief that Becky was not unlawfully detained and did not seek release from the custody of the ICAC, and the evidence of Frankie Chung that Derek told him that Becky was a fragile person and that Mandy must have known that this was her disposition, the learned judge concluded that she was guilty of the conspiracy.

218.  I acknowledge Mr Caplan’s submission that Mandy had not said anything to Becky, in any of the telephone conversation, which could be construed as a threat or request not to co-operate with the ICAC.  But, with respect, that is not necessary for the charge.  He submitted that Mandy had real concerns about the welfare of Becky and that Becky had sent misleading signals.  But the learned judge found that Mandy knew the evidence that Becky was involuntarily detained by the ICAC was false.  Mr Caplan also relied on Clement’s evidence that Mandy did not expressly state that Becky had wanted to leave the custody of the ICAC, she only told Clement that she “had the feeling that [Becky] didn’t want to be where she was”, and that her instructions were “a little bit vague”.  But such evidence had been considered by the learned judge and his conclusion was one which he was entitled to come to, and more importantly, not one which I am entitled to overturn.  Mr Caplan further submitted that the learned trial judge took into account at para. 622 of the Reasons that Mandy did not say she would “try to save” Becky during the telephone conversations on 12^th July 2004.  Mr Caplan submitted that Mandy did, however, send to Becky via SMS a “lawyer’s” phone number in the afternoon of 12^th July and a message saying “lawyer will save u” in the evening of 14^th July.  I do not believe this could invalidate the learned judge’s conclusion.  In fact, this evidence was against Mandy : at no stage had Becky requested help from anyone, yet a message was sent to her requesting her to contact a lawyer who was unknown to her.

Destruction of the telephone intercepts

219.  In para. 22 above, I mentioned that Becky called Mandy and that the call was monitored by the ICAC.  The learned judge found, accepting the evidence of Becky that she said to Mandy:

“she was safe and sound” “平安無事”

220.  This call was intercepted and recorded by the intelligence team of the ICAC.  A first hand listener’s notes (“the Notes”) were contemporaneously prepared by the officer who listened to the call.

221.  Unfortunately the tape recording of 11 July 2004 conversation as well as the Notes of that conversation have been destroyed.  Ms Montgomery’s submission on the destruction of the tape and the Notes was adopted by all the other applicants.

222.  The sound recording was destroyed in July as a matter of routine.  The Notes were destroyed on 2 September 2004.  The ICAC has not explained why they were destroyed.  It was not said that the Notes were destroyed as a matter of routine.  However, in para. 599, the learned judge said he accepted the evidence that monitored calls were intended for intelligence only and not as evidence, and that there was a procedure for the Notes’ destruction one month after the cessation of tapping, unless special request was made for its retention.

223.  The importance of the conversation is obvious as the learned judge clearly recognised.  The learned judge compared the listener to an “independent witness to that conversation …”.  If the Notes had been available, it would have been highly important evidence regarding the contents of the conversation.  The Notes having been destroyed and no one had any memory of any of the calls, the matter was not pursued.

224.  Mr Wilson has referred us to paras. 41, 582, 599, 600 and 601 of the Reasons where the learned judge dealt with the destruction of the telephone recording and the Notes.  The learned judge summarised the submission as follows:

“582. (7)  The first-hand listener’s notes to the monitored phone calls were destroyed despite the requests by lawyers for D2 and D3 to keep them.”

225.  But as the learned judge correctly pointed out in para. 600, the requests were for:

“600. … the relevant mobile phone networks to preserve the calling records as they would prove the making of the calls by Becky Wong. …”

226.  The learned judge concluded:

“601. The fact is that the relevant call records from the network providers are produced by consent.  I do not see any mala fides in the destruction of the phone tapping records, nor am I handicapped in trying the case.”

227.  It is important to note that the intercept was in place for the Semtech investigation.  In that context, I do not believe the statement “safe and no incident” would have been regarded as significant.  Since the Notes would not have been a verbatim transcript of the conversation, even if there was no mention of “safe and sound” in the Notes it would not follow that it had not been said.  Indeed, there was an investigation report based on the Notes.  The learned judge said:

“599. … Mr Daniel So (PW72), Principal Investigator in charge of this case had seen the first hand listener's notes on the call between Becky Wong and D2 on 11 July before their destruction and compiled an investigation report on it.  It was said that the investigation report did not mention safe and sound.  The report is not produced and I do not speculate on it.”

My understanding is that the investigation report had been provided to the defence, and they must have had good reason not to cause that to be produced.  I am willing to assume that the investigation report had not mentioned “safe and sound” but again it does not follow that Becky had not said it.  What is significant that the learned judge was sufficiently impressed with Becky’s evidence that he said he was not “handicapped in trying the case”.

228.  The learned judge also found that there was no mala fides.  In the context it could only mean that he was of the view that it was not a case of deliberate destruction of evidence knowing it to be material.

229.  Ms Montgomery submitted that the learned judge should have regarded their destruction as

“162. … at least, a deliberate or grossly negligent interference with the rights of the defence and thus an abuse of process (whether or not the decision was taken maliciously).”

She also submitted that:

“163. In addition, whether or not the destruction justified a stay of the proceedings, the Judge was bound to recognise and remedy the prejudice caused to the defence in the trial process. The Judge had earlier described the evidence of the contents of the call as akin to a witness ‘present at the scene’

164.  The obvious and appropriate response that would have protected the interests of the defence would have been to infer or assume that the tapes did not corroborate the claim by Becky that she told Mandy she was ‘平安無事’ or ‘safe and no incident.’ This inference or assumption would have had two consequences. First it would have been important evidence to be deployed in analysing whether there had here been any bad faith by the prosecution. Second the inference or assumption would have fundamentally undermined Becky as a witness.”

230.  But, as I have endeavoured to explain, in the circumstances, even if the Notes did not corroborate Becky’s evidence, it did not mean that the learned judge might not otherwise accept Becky’s evidence.

231.  I have taken into account Ms Montgomery’s forceful submissions and hope I will be forgiven for not dealing with them at length.  With respect, the learned judge dealt with the destruction of evidence issue carefully and fully in his Reasons and I do not believe it has been shown that he was wrong.

Presumption or inference as a remedy

232.  Ms Montgomery submitted that the learned judge should have applied the evidential presumption “omnia praesumuntur contra spoliatorem” (all things are presumed against the spoliator).  But at most, it meant presuming that the Notes did not record Becky saying to Mandy that she was safe and sound.  But not that Mandy did not say it.  I cannot accept Ms Montgomery’s submission that:

“178. … He was bound, both in accordance with the principles underlying the doctrine of spoilation and logic, as well as the ordinary requirements of fairness, to conclude that there was a significant and reasonable doubt as to whether Becky had ever said she was safe and no incident. …”

Conclusion on Charge 1

233.  I believe there was adequate evidence on which the learned judge could convict Mandy on the first charge.  I am unable to agree that sufficient ground has been shown to entitle me to reject the learned judge’s conclusion.

Charge 2: Perjury

234.  Here, the issue was whether Mandy had attempted to make an affirmation which was, to her knowledge or belief, false in a material particular.  The alleged matters of falsity are set out in paragraphs (a) - (c) of Charge 2 and there is one alleged omission.  Paragraph (a) was, however, not pursued by the prosecution.

235.  The learned judge found that the ICAC had not confiscated Becky’s SIM card, that Becky had not said that she did not know where she was, that Becky did have close family members in Hong Kong and that Mandy had omitted to mention that Becky had told her she was safe and sound. He also found that these statements/omission were false and that Mandy did not believe them to be true. He found that Mandy understood the contents of her affirmation as interpreted to her by Raymond Lam.

236.  Mr Caplan submitted that section 43 of the Crimes Ordinance required “corroboration” in the sense that a person could not be convicted:

“… solely upon the evidence of one witness as to the falsity of any statement alleged to be false”.

However, as the learned judge correctly held there were evidence from Becky’s mother and elder sister that they lived in Hong Kong.  That is sufficient “corroboration” for the purpose of section 43.

237.  The learned judge dealt with charge 2 in paras. 638 to 643 of the Reasons.  Mr Caplan submitted that it was incumbent on the prosecution to prove that the statement(s) were false and that Mandy knew that they were false or did not believe them to be true. The prosecution must also prove that the statement(s), when viewed objectively, were material in the proceedings which is an issue to be decided by the judge (R v Millward 80 Cr App R 280).  I am satisfied that the statements and omission are capable of influencing the tribunal (see Archbold Hong Kong 2007 paras. 30-80).

238.  Mr Caplan referred to R v Davies [1974] 7 SASR 375 where the Supreme Court of South Australia considered the meaning of ‘materiality’ in the offence of making a false declaration as contrasted with the offence of perjury. Bray CJ said in the context of perjury: “Material, I think, in this context must mean, not only relevant, but practically relevant. A statement of only remote or theoretical relevance might not be material” (at page 377). Wells J said: “A fact, in my opinion, is material for the purposes of a charge of perjury when it is of such significance and importance, having regard to the whole of the evidence, that it is capable of affecting the decision of the appropriate tribunal of fact on the factual issue or issues, and materiality should be given a corresponding meaning” (at page 391).  A little later, Wells J said: “For the purposes of a perjury charge, materiality must ultimately depend on the relationship between the impugned evidence and the issues contested in the case in which that evidence was given, and the force and bearing that the one has upon the other” (at page 394).

239.  With respect, I am unable to agree that the learned judge has erred in any way.  I am happy to adopt the approach Mr Caplan commended to me.  Mandy’s omission to mention that Becky had told her that she was “safe and sound” is clearly material, as the learned judge said that would have undermined Mandy’s professed belief that Becky was detained against her will.  Although I agree with Mr Caplan that the absence of close family members in Hong Kong was not a condition for Mandy’s locus standi, it is common sense that if Becky did have close family members in Hong Kong, they would be expected to come forward if Becky had been detained against her will.  If Becky was being detained against her will, the court would want to know why her family was not making or supporting the application.  As for the confiscation of Becky’s SIM Card, that went to the question whether she was free to do what she pleased which materially supported the case that she was detained against her will.

240.  In the circumstances, I cannot agree that the conviction on charge 2 is wrong.

Derek, the 1^st applicant

241.  As noted, the 1^st applicant has absconded.  He has also been convicted in the Semtech trial.  The fact that he has absconded has no bearing on his guilt or innocence in this application.  However, I am satisfied that for the reasons given by the learned judge his conviction must be upheld.

Conclusion

242.  I would give leave to both the 3^rd and 4^th applicants to appeal and treating the hearing as the hearing of the appeal, I would allow their appeals, and set aside their convictions.  As for the 1^st and 2^nd applicants, I would refuse leave to appeal.

Hon Ma CJHC :

243.  I have read in draft the judgment of Tang VP and gratefully adopt much of its contents.  I also agree with the conclusions reached by him (together with the reasons) in all respects save one (in relation to the 3^rd applicant).  I also agree with the conclusions and reasons of Wright J, save in relation to the 4^th applicant.  In my judgment, I would dismiss the applications for leave to appeal of the 1^st, 2^nd and 3^rd applicants.  In the case of the 4^th applicant, I would grant leave to appeal and, treating the hearing as the hearing of the appeal proper, also allow the appeal.  I would also in his case dismiss the appeal by way of Case Stated and answer the questions raised therein in the way Tang VP has done.

244.  For my part, I only intend to deal with two aspects, both to do with the main charge faced by all the applicants (Charge 1 – conspiracy to pervert the course of public justice) : -

(1)  The adequacy of the charge as drafted.

(2)  The conviction of the 3^rd applicant, Lam.

I shall use the same abbreviations as appear in the judgment of Tang VP.

The adequacy of Charge 1 as drafted

245.  Counsel for the applicants all made submissions along the lines that the first charge (which is set out in full in paragraph 8 above) was inadequate to charge the alleged conspiracy to pervert the course of public justice.  The arguments were developed principally by Mr Jonathan Caplan, QC for the 2^nd applicant (Mandy) and Ms Clare Montgomery, QC for the 3^rd applicant (Lam).

246.  Ms Montgomery highlighted the following statement made by the prosecution in opening the trial : 

“This case arises from a deliberate, determined and fairly prolonged attempt to gain access to a potential prosecution witness in order to ascertain whether she had co-operated with a law enforcement agency, if so, to ascertain what she may have said and to try to influence her against giving any or any further co-operation.  It is the prosecution’s case that all four of these defendants were party to the attempt, together with the witness Frankie Chung, who is PW2, in different capacities, and their agreement constituted the Common Law offence of conspiracy to pervert the course of public justice which is the 1st charge.”

247.  It was submitted that this statement, which confirmed or summarized Charge 1 as drafted, disclosed no offence known to law.  Essentially, the submission was to the effect that the four pleaded particulars in the Charge merely went to attempts to gain access to Becky.  Gaining access to a potential witness was not illegal and could not be said to be an act that would pervert the course of justice.  This was premised on the point which Tang VP has already discussed at length, namely, that there is no property in a witness.  As far as it goes, this proposition must be right.  However, as Mr Martin Wilson, QC (for the prosecution) has argued, this was not the effect of Charge 1 at all.  Here, it becomes necessary to deal first with the ingredients of a conspiracy and secondly, of the offence of perverting the course of public justice.

248.  The essence of a conspiracy is of course the agreement to perform an illegal act (in the present case, to pervert the course of public justice).  Section 159A of the Crimes Ordinance, Cap. 200 confirms this.

249.  Where direct evidence of the relevant agreement is not available (and this is so in most cases involving a charge of conspiracy), the usual way of establishing the agreement is by way of drawing inferences from overt acts : - see Archbold Hong Kong 2009 at paragraph 36-11.

250.  Though it is often said that overt acts need not be spelt out (see Archbold at paragraph 36-41), the particulars of the principal overt act or acts are often set out in an indictment (or ordered to be provided) so as to make clear just what is the conspiracy alleged : see Archbold at paragraph 36-44.  The underlying principle is that the accused and the trial court are entitled to know on the face of the indictment the true nature of the prosecution’s case : see The Queen v Chan Kang To [1997] HKLRD 412, at 416B (referring to R v Landy (1981) 72 Cr App R 237, at 244).

251.  Since the purpose of setting out overt acts is really just to make clear the nature of the case alleged against an accused, it follows that the pleaded particulars do not necessarily constitute essential ingredients of the offence : - see R v Hancock (1996) 2 Cr App R 554, at 559-60.  As stated above, the essence of a conspiracy is the agreement to perform an illegal act.

252.  Before analyzing the charge in the present case, I should discuss the ingredients of the offence of perverting the course of public justice and particularly in the context of seeking access to actual or potential witnesses.

253.  As Tang VP has stated, the starting point must be that there is no property in a witness.  It follows from this that merely seeking access to a witness in criminal proceedings (whether actual or contemplated) will not by itself amount to the offence of perverting the course of public justice.  Asking a witness to reconsider assisting the authorities or giving evidence may not necessarily amount to an offence.  Much depends on the actual circumstances.

254.  The gist of the offence of perverting the course of public justice is, in broad terms, conduct which is intended to lead to a miscarriage of justice :  see R v Machin [1980] 1 WLR 763, at 766H, 767B.

255.  In the context of approaches made to witnesses, an attempt to dissuade a person who otherwise intends to give evidence from so doing, (in the sense of stifling that evidence being given) and thereby obstructing what otherwise would be the course of justice, can amount to perverting the course of public justice.  But where is the line to be drawn?  The following represents what I understand to be the law in this area : -

(1)  It is far too wide to say that any interference will amount to a perversion or an attempt to pervert.  See R v Kellett [1976] 1 QB 372, where at 386G-H, it was said : -

“ First, we do not consider it fortuitous that there is no case in the books, as far as we know, which supports the extreme view indicated by some of the textbook statements that any interference with a witness is an attempt to pervert the course of justice.  That would make a man guilty of this offence if he went privately to a witness who had made a false statement and by reasoned argument supported by material facts and documents tried to dissuade him from committing perjury and to persuade him to retract lies and tell the truth.”

(2)  Where the objective of the interference with a witness is proper but the means employed are not (for example, threats or bribery), the offence is made out.  Thus, for example, where a person seeks to persuade another person not to put forward a particular version of events to the police because he regards it as untrue (an acceptable objective) but uses unlawful or improper means to do so, he will be guilty of the offence.  In Kellett, at 392F-G, Stephenson LJ said this : -

“Sir Peter Rawlinson for the Crown, while asking us to approve both directions, as we understood him, submitted that the prosecution had to prove (1) interference with the witnesses, (2) on such a scale as to pervert the course of justice, (3) with that purpose, that is with the intention to make the witnesses do what they would not otherwise have done.

We understand (1) and (3) to mean that there must be an attempt to make the witnesses do what they would not otherwise have done, with that intention, whatever the means used; but we are not sure what (2) added to the ingredients of the offence.  We have already given our opinion that some means of attempting to influence witnesses are outside the limits of this particular offence.  But subject to the qualification that the means must be unlawful or improper, such as force or a threat of force, a reward or the promise of a reward, we accept his general submission that an intentional interference with a witness is enough.”

(3)  The reference in the quoted passage to “lawful or improper” means that, in any given case, the actual acts must be looked at in context to see which side of the line they fall.  The matter is put thus in Kellett at 392G-393B : -

“There may be cases of interference with a witness in which it would be for the jury to decide whether what was done or said to the witness amounted to improper pressure, and so wrongfully interfered with the witness and attempted to pervert the course of justice, and it would be not only unnecessary and unhelpful but wrong for this court or the trial judge to usurp their function.  The decision will depend on all the circumstances of the case, including not merely the method of interfering, but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is being given.  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.  But it is for the judge to direct the jury that some means of inducement are improper and if proved make the defendant guilty, and this was such a case.  A jury should be directed that a threat (or promise) made to a witness is, like an assault on a witness, an attempt to pervert the course of justice, if made with the intention of persuading him to alter or withhold his evidence, whether or not what he threatens (or promises) is a lawful act, such as the exercise of a legal right, and whether or not he has any other intention or intends to do the act if the evidence is not altered or withheld.”

(4)  Ms Montgomery relied on the following passage in the joint judgment of Brennan J, Toohey J and McHugh J in the decision of the High Court of Australia in Meissner v The Queen (1994-1995) 184 CLR 132, at 143 : -

“It will often be difficult to determine whether conduct that falls short of intimidation but which has the tendency to induce an accused to plead guilty is improper conduct that interferes with the accused’s free choice to plead guilty or not guilty.  Arguments or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put.  Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge.  As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.”

(5)  This passage, in my judgment, is consistent with that part of the judgment in Kellett just quoted, in that a determination of whether in any given case, pressure or conduct can be said to be improper is entirely dependent on the context.  This was reinforced in another passage in the judgment, this time of Deane J at 148-9 : -

“The proper administration of criminal justice is, to no small extent, dependent upon the ability of courts to proceed on the basis that a plea of guilty or not guilty, with all that it entails, is made by an accused in the exercise of his or her own free choice.  To endeavour, by intimidation, inducement or other means, to overbear the free choice of a person to plead not guilty and thereby bring about a tainted plea of guilty is clearly to attempt to pervert the course of justice in the sense of attempting adversely to interfere with the proper administration of justice.  And that is so even in a case where the person whose free will is sought to be overborne is, or is thought to be, guilty.  Obviously, in such a case, circumstances may arise in which the borderline between what constitutes legitimate persuasion of an accused person to plead guilty and what constitutes the offence of attempting to pervert the course of justice will be difficult to discern.  When those circumstances arise, the relationship between the parties and an overall perception of real criminality are likely to be of particular significance.  Thus, for example, a degree of pressure which would be quite legitimate if exerted by an accused’s own lawyer acting solely in the accused’s interests may be completely unacceptable if exerted by a stranger acting for a collateral and selfish purpose of his or her own.”

(6)  Of course, in any case where the objective of the approach to a witness is improper (such as to persuade the witness to do the opposite of what he or she intended to do or say), it will be in practice easier to prove that the means employed were improper.  R v Toney [1993] 1 WLR 364, a case that was dealt with at some length before us, seems to take this further in that it is authority for the proposition that the offence is established where it is shown the objective is improper; it will not be necessary for the prosecution to demonstrate that the means employed were also unlawful : - see 368A-C, 370A-D.

(7)  As Kellett makes clear, the gravamen of the offence where approaches to witnesses are concerned, lies in the attempt to make the witness do or say what he or she would not otherwise have done or said.  Where a witness is involved or may be involved in proceedings, be they civil or criminal, such interference is likely to result in the possibility of a miscarriage of justice.  In the context of proceedings before a court or tribunal, such interference impairs the capacity to do justice, by denying the court or tribunal the knowledge of the true circumstances of a case : - see the decision of the High Court of Australia in R v Rogerson (1992) 107 ALR 225, at 230 : -

“Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case.  The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case.  The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice.  The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various.  Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions.”

256.  The actus reus of the offence of perverting the course of public justice consists of any act that has the tendency to impair the capacity to do justice : - see Rogerson at 230.  The mens rea is the intent to pervert the course of justice by an act that has the said tendency : - see Rogerson at 231.

257.  As to the actus reus of the offence of conspiracy to pervert the course of public justice, this consists of the agreement to do an act having the tendency to impair the capacity to do justice : - see Rogerson at 231.

258.  The mens rea of the offence of conspiracy to pervert the course of public justice is proved by showing that the alleged conspirators intended that if the relevant act was done in the circumstances contemplated, it would have the effect of perverting the course of justice : - see Rogerson at 231.  As to the proof of this element, the following passage from the judgment of Brennan J and Toohey J in Rogerson at 232 represents the law : -

“Of course, where there is an agreement to do an act that has a manifest tendency to pervert the course of justice, proof of an agreement to do the act may suffice to prove the intent thereby to pervert the course of justice.  But, if the act to be done is of such a nature that its tendency to pervert the course of justice is not manifest, proof of an agreement that the act be done does not, without more, amount to proof of a conspiracy to pervert the course of justice: in such a case, there has to be proof of an intent to do an act that will have the effect of perverting the course of justice.  The state of an alleged conspirator’s knowledge of the nature of the relevant act is of critical importance.  An act which is not known to have the tendency or is not intended to have the effect of perverting the course of justice is not an act the doing of which attracts a liability to punishment as for an attempt to pervert, or a perverting of, the course of justice.  An agreement that such an act be done made among persons who do not know that the act has such a tendency and who do not intend it to have that effect is not a conspiracy to do an unlawful act.  To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect.  In this context, knowledge and intent relate to the acts and circumstances contemplated by the conspirators; the legal complexion of those acts and circumstances is a question of law.”

259.  I should for completeness just point out that the offence of perverting the course of public justice is not restricted to the situation where curial proceedings are actually in existence.  While admittedly the term “the course of justice” does refer to curial proceedings, the offence can be committed even at the police investigation stage when criminal proceedings are imminent, probable or possible.  In the judgment of Mason CJ in Rogerson at 228, he said this : -

“… The fact that police investigation stands outside the concept of the course of justice does not mean that, in appropriate circumstances, interference with a police investigation does not constitute an attempt or a conspiracy to pervert the course of justice.

It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed.  That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible.  In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency.  So, in Kalick v R (1920) 55 DLR 104, at 109, it did not matter whether the police officer intended to institute a prosecution; it was sufficient that, being apprehensive of a prosecution, the accused gave a bribe to prevent it.  Action taken to prevent the institution of a prosecution is as much an interference with, or impairment of, the administration of justice as action taken to obstruct the conduct of a prosecution after it has been commenced.”

260.  With the above principles in mind, I move on to an analysis of Charge 1.  In my judgment, the Charge is adequately drafted and cannot be impugned in the way submitted by the applicants : -

(1)  The gist of the alleged conspiracy in this Charge against the applicants was the agreement to do a series of acts that had tendency to “obstruct and hinder the investigation and possible proceedings” in relation to the 1^st applicant (Derek), in that access would be sought to be gained to Becky for the purposes of finding out what she had said to the ICAC, and to influence her against providing assistance or information to the ICAC.

(2)  The series of acts are particularized in the Charge, there being four, these being the overt acts of the alleged conspiracy.

(3)  These particulars define the true nature of the conspiracy that is alleged against the applicants.  The references to (a) the falsity of the representations to the ICAC to the effect that certain persons represented Becky when they did not; (b) the institution of habeas corpus proceedings when, to the applicants’ knowledge or belief, Becky was not unlawfully detained and did not want release from ICAC custody; (c) the use of false and misleading information and (d) the dissemination of information falsely alleging that Becky Wong was being unlawfully detained, all clearly point to the conspiracy as essentially an attempt to gain access to Becky with a view to influence her not to co-operate any further with the ICAC.  The falsities alleged add a sinister element to the conspiracy : it is tolerably clear that there is an element of intimidation here; certainly, an attempt to influence Becky not to do something that she otherwise intended to do.  This reference to falsities is important for another reason : the knowledge on the part of the alleged conspirators that Becky was not unlawfully detained and did not want release from ICAC custody.  The judge regarded this aspect as integral to the charge.  For my part, I agree.

(4)  Seen in this light, the objective of the conspiracy was an improper one.  The methods that were employed to achieve this purpose were also, in my view, improper in the circumstances. Mr Caplan and Ms Montgomery both submitted forcefully that the acts pleaded in the particulars were not by themselves improper acts in any way.  This is correct if one takes the acts out of their pleaded context.  However, in context and particularly given the falsity alleged and the sinister element identified above, they clearly were.

(5)  I should perhaps also just add (this is relevant to the habeas corpus proceedings) that where proceedings are brought for an improper purpose, they constitute an abuse of process : - see the decision of the High Court of Australia in Williams v Spautz (1991-1992) 174 CLR 509.

The 3^rd applicant

261.  Before dealing with the position of Lam in detail, it is useful to take a step back to see exactly what had actually happened in the present case.  The following observations are pertinent here : -

(1)  The evidence clearly demonstrates that at no stage did Becky, a person who was assisting the ICAC with their investigations and who eventually joined the WPP, request any assistance from anyone regarding her release, nor had she given any indication at all that she was being held against her will.  The most that could be said was that when she spoke with Mandy on one occasion, her voice was faint or trembling, and she could have sent misleading signals, but this is very far short of evidence to demonstrate that she was in need of assistance or that she was being held involuntarily.

(2)  Becky was of course clearly a crucial witness as far as Derek was concerned.  She was his secretary and was in a position to give crucial evidence against him.  Derek knew this from the very start.

(3)  And yet, quite extraordinary steps were taken to gain access to Becky : the two visits to the ICAC on 13 and 14 July 2004; the institution and prosecution of the habeas corpus proceedings, and the deliberate and extensive involvement of the media.

(4)  As I have highlighted, Becky eventually became a protected person under the WPP.  Yet, by reason of the steps taken to gain access to her (and in the circumstances, they were done in a very public way), her identity was revealed to the world at large.  The newspaper reports of the relevant events demonstrate this.  The report of Sing Tao Daily on 14 July 2004 makes reference to Becky and her role, although she was not named.  The reports in the SCMP on 16 July and 17 July not only named Becky, but gave details of her role and the fact she was in the WPP.

(5)  It is also to be noted that Becky was a fragile witness.  The evidence before the court revealed that when the habeas corpus proceedings were afoot, she even had second thoughts about whether to continue with her co-operation.

262.  Lam’s role has already been briefly outlined in Tang VP’s judgment.  He was Derek’s lawyer.  In the afternoon of 13 July 2004, Derek and William Lau (the manager of Semtech, the company that was the subject of the criminal investigations) were seen to go into the offices of Lam to see him.  They were later joined by Mandy at about 5:39 pm.  At 5:59 pm, Derek, Mandy, Lam and William Lau were seen going to the offices of Massie & Clement.

263.  What then took place in Massie & Clement’s office when the four persons just mentioned met Richard Clement (a partner of Massie & Clement), is of some importance.  Clement said in evidence that Lam referred Mandy to his firm to represent her interests because (according to Lam) there was a conflict of interest.  This was the way the evidence was elicited from Clement in his cross-examination at trial : -

“Q.    There was a mention, was there not, by Mr Lam when he brought these people to you the reason why he was bringing them to you was that there was a possible conflict of interest?

A.           Absolutely.

Q.            And did you think at any stage throughout that week your firm was being used as – I quote with the phrase – ‘cordon sanitaire’.

A.     It never occurred to me at all, no.

Q.     You never felt that you were being used in that way.

A.     No, no.

Q.     And you would have regarded yourself and your firm as acting totally independently from any other law firm when you were acting for Mandy Chui.

A.     Oh, absolutely, yes.

Q.     And perhaps would be offended if it was suggested that you were somehow under the influence of some other law firm, whether C.K. Mok or Andrew Lam or ...

A.     I think that would be a very fair comment.

Q.     Pardon?

A.     It would be a very fair comment.

Q.     Yes.  And you were throughout, acting, as you thought, properly in the interest of your client who was Mandy.

A.     Absolutely, yes.”

264.  In my judgment, this was a critical piece of evidence.  It has been suggested on Lam’s behalf by Ms Montgomery that his statement was entirely reasonable and that there was a potential conflict of interest between Derek and Mandy.  With respect, this is extremely difficult to accept : -

(1)  At that time, Mandy had already spoken to Becky.  In the telephone conversation that had taken place at about lunchtime on 11 July, Becky had said to Mandy that she was “safe and sound” (or “safe and no incident”).  This was repeated in the telephone conversation that took place in the morning of 12 July.  Another telephone conversation followed this one during which Becky asked Mandy to apologize to Derek.  These conversations are referred to in paragraphs 22 and 32 of Tang VP’s judgment.

(2)  If, which was the position adopted by all the applicants (but contrary to the evidence given by Becky), Becky was indeed held against her will and therefore needed assistance, it is difficult to see where any conflict of interest lay as far as Lam was concerned.  In such a situation, both Derek and Mandy’s interests in securing Becky’s release were exactly the same.

(3)  If, as was advanced to us as a possible reason for the attempts to gain access to Becky, the intention was only to ask Becky to reconsider her continuing to co-operate with the ICAC, again there was no conflict of interest.

265.  The premise therefore in Lam not agreeing to act for Mandy (as well as Derek) was non-existent.

266.  Yet, despite this assertion of a conflict of interest, Lam became involved in almost every aspect of the very matter on which Mandy was instructing Massie & Clement, namely, seeking to gain access to Becky : first, by the two visits to the ICAC by Egan and subsequently, by the institution and prosecution of the habeas corpus proceedings.  In other words, quite inexplicably, Lam embarked on a series of conduct that not only demonstrated that all that he had said about the existence of a conflict of interest was simply untrue as a reason, but also that he did the exact opposite of what was apparently intended.

267.  In the Reasons, the Judge emphasized this aspect : -

“As to the case against D3, he started to act for D1 on 13 July on the file record.  D1 and D3 met at D3’s office in the afternoon of 13 July, where D2 was called to join in before the party went to Massie & Clement.  From experience, D3 must have realized the possibility of Becky Wong being persuaded to co-operate with the ICAC.  Mr Clement said D3 introduced D2 to Massie & Clement because of possible conflict of interests.  But if D3 really believed in the instructions that Becky Wong was illegally detained by the ICAC and she wanted to get out, with all the proper disclosures, there could hardly be any conflict of interests.  It is noted that D3 spoke freely to Mrs Reimer Lau that he acted for the director of Semtech and he planned the habeas corpus to save the secretary from the abuse by the ICAC.  Of course, the truth of D3’s statement to Mrs Reimer Lau on his belief of abuse by the ICAC remains to be assessed qua jury function.  But it shows that D3 saw nothing wrong in so telling Mrs Reimer Lau.”

This was said in the course of the Judge’s reasons for rejecting the submissions that had been made that there was no case to answer.  These reasons were applicable when the Judge came to consider his final verdict.

268.  The involvement of Lam in almost every aspect of the attempts to gain access to Becky is clearly shown by the evidence as follows.

269.  After the initial meeting in the afternoon of 13 July, eventually Derek and Lam went to the FCC where they met Egan.  At 6:51 pm, Egan telephoned Clement to indicate that Lam was agitated about the way Clement intended to deal with the ICAC in attempting to gain access to Becky.  Whether or not Lam was agitated is unimportant : the fact his name was referred to gives rise to the inference that he was involved in a matter that, in theory, only concerned Mandy (that is, seeking to gain access to Becky).

270.  Egan was ostensibly instructed by Massie & Clement in the ICAC visits on 13 July in trying to gain access to Becky (see paragraph 266 above).  However, Lam spoke to Egan at least three times during this visit (the calls were recorded at 7:45 pm, 7:51 pm and 7:56 pm).  There were further telephone conversations at 9:06 pm and 9:21 pm.

271.  The next morning (on 14 July), before Egan went to the ICAC for the second visit, he spoke twice with Lam on the phone, the telephone conversations were recorded at 9:17 am and 11:01 am.

272.  The same day, after the habeas corpus proceedings had concluded before Yam J, Lam and Egan spoke on the phone : at 5:58 pm, 6:24 pm and 6:30 pm.

273.  On 15 July, at 12:57 pm (after the hearing before Yam J that day), Egan spoke to Derek (who, it will be remembered, was not his client, but Lam’s) mentioning Lam.  At 1:01 pm, Lam and Egan spoke.  That afternoon, when the habeas corpus proceedings were before Hartmann J, they spoke again at 6:26 pm.

274.  On 16 July, after Hartmann J had delivered his ruling, Lam spoke with Egan on the telephone at 6:26 pm.  Prior to this, Lam had called Egan five times.

275.  It must be borne in mind that at no stage was Egan officially retained by Lam for Derek.  He was at all material times retained only on behalf of Mandy.  And yet, as the Judge observed, Lam was engaged in “heavy telephone traffic” with Egan.

276.  Another feature of Lam’s substantial involvement during the time of the said attempts to gain access to Becky were his communications with the press.  The Judge was of the view that Derek and Lam agreed to involve the press in carrying out the conspiracy alleged under the 1st Charge.  In paragraph 633 of the Reasons for Verdict, the Judge said this : -

“I have found that D1 did tell Frankie Chung that D3 was going to arrange for a press conference for D1 and that made him happy.  Although there was no press conference during the period of the conspiracy, the press was certainly involved resulting in the Sing Tao article reporting that Becky was illegally detained.  As I have found D3 and D4 not guilty on the 3rd Charge, I ignore the SCMP article as an effort in involving the press by D3.  I find that D1 and D3 did agree to involve the press in carrying out the object of the conspiracy in the 1st Charge.”

277.  On 13 July, subsequent to the first ICAC visit by Egan, Lam spoke with Carmen Hsu (of the Sing Tao Daily) at 9:36 pm.  At about this time, she was also talking on the phone with Egan.

278.  The next day, Sing Tao Daily published the story that Becky (though not named) was allegedly being held against her will.  At 9:14 am, Lam spoke with Ms Hsu.  He did so again at 6:24 pm that day.

279.  On 15 July, in the course of the habeas corpus proceedings, Lam again spoke with Ms Hsu : at 11:11 am, 2:12 pm, 4:05 pm; there were three calls between 5:09 pm and 6:25 pm, 7:07 pm and 8:30 pm.

280.  On 16 July, Lam spoke with Ms Hsu at 3:05 pm and 3:08 pm.  Sometime after 6:00 pm, Lam called Ms Hsu four times and she had called him three times.

281.  In the afternoon of 16 July, Lam had also spoken with the reporter from the South China Morning Post, Magdalene Chow.

282.  In my judgment, the above matters (all of which were referred to by the Judge) clearly demonstrated the pivotal role played by Lam in relation to the attempts to gain access to Becky.  And yet, as I have pointed out, he attempted, under the guise of an asserted conflict of interest, to appear not to be involved.  It will be noted that in the documents filed in the habeas corpus proceedings and during counsel’s submissions in those proceedings, no reference was made at all to any link between the person making the application (Mandy) and Derek.  The involvement of Lam was of course not apparent either.

283.  The irresistible inference was that drawn by the Judge, that Lam had planned the habeas corpus proceedings (at least he was heavily involved in it).  The term used by the Judge was that he was “calling the shots behind the scenes”.

284.  The Judge was also of the view that Lam must have known that Becky was not illegally detained by the ICAC.  There is admittedly no direct evidence of this but in my view, this inference is similarly irresistible.  The attempt to disguise his heavy involvement in the attempts to gain access to Becky was, in my view, highly suggestive of an attempt to disguise from the ICAC, and later the court, the involvement of the very person who was the subject matter of the ICAC investigation, Derek.

285.  It is to be remembered that Becky was probably at that stage the main witness against Derek; certainly an important one at the very least.  All this, coupled with the fact that, apart from what Mandy had asserted, there was no evidence whatsoever that Becky was being held against her will, gave rise to the inference that Lam knew the true position.

286.  I do not ignore the fact that the Judge relied on the evidence of Nattrass and what has been referred to as the Grissini lunch.  For my part, I do not place too much importance on these two aspects.  The significance of the evidence in relation to them can be seen from the following.

287.  As regards the Grissini lunch (which took place on 15 July between Lam, Mrs Mary Jean Reimer Lau (formerly an assistant solicitor in Lam’s firm) and Mr Martin Yeung (Lam’s former trainee solicitor)), discussions took place about the Semtech case.

288.  The relevant points of this evidence were summarized by the Judge as follows : -

“Mrs Reimer Lau said D3 said he had planned the action of habeas corpus to help Becky Wong, and he was making the application.  D3 said he was confident that the application would be successful.  D3 said he would switch on all the machines against the ICAC.

According to Mr Yeung, they chatted about recent work.  D3 said he recently accepted a case.  Mr Yeung asked whether it was the Tung Chung River case and D3 said no, it was the Semtech case.  D3 said the ICAC was in the wrong in getting hold of the girl surnamed Wong.  It was not the first time and it was like the previous case of Angela Gong, and luckily, Angela Gong had lots of friends and he was able to rescue her.  The girl surnamed Wong was not as lucky because she did not have any relative or friend in Hong Kong, and the ICAC liked to choose this kind of people as their target.  D3 said it was false imprisonment and a report had to be made to the police.  It was mentioned that an application for habeas corpus had to be made.  D3 said with ‘our’ habeas corpus, the ICAC would have a lot of trouble that evening as it would be urgent to brainwash the girl.  D3 said if this time the matter could not be fixed, ‘I would switch on all the machines against the ICAC.’”

289.  The significance of this evidence lay in the extensive involvement of Lam, particularly in the habeas corpus proceedings (which Lam said he had planned), notwithstanding his alleged conflict of interest.  The reference to switching on “all the machines” against the ICAC involved the use of the press to which I have also alluded (the Judge at paragraph 632 of the Reasons for Verdict said Lam used Ms Carmen Hsu as “part of the machines at his disposal”).  All this was, however, the effect of the evidence to which I have already referred.  The Grissini lunch therefore, in my view, merely corroborated this.

290.  As regards the evidence of Nattrass, the only importance of this in my view was the further corroboration of the role of Lam (as to which there was other evidence as I have said).

291.  I appreciate that Tang VP has carefully analyzed the Judge’s reasons for accepting the evidence on Nattrass and he has found this unconvincing.  For my part, I am satisfied that the Judge had carefully analyzed Nattrass’s credibility in the Reasons for Verdict, having heard his evidence first hand.  I am not satisfied that this is an appropriate case for this court to overturn the Judge’s views on the credibility of a witness, particularly in areas clearly of primary fact.

Hon Wright J :

292.  I have had the opportunity of reading, in draft, the judgments of the Chief High Court Judge and the Vice President.  For the convenience of the reader, I shall adopt the same descriptions as have already been used.

293.  I propose to deal with the position of each applicant in turn: insofar as Egan, the fourth applicant, is concerned I shall deal with, together, as a matter of convenience, his application for leave to appeal conviction on the 4th and 5th charges as well as the Application for Review in respect of his acquittal on the 1st charge.

294.  In an attempt to limit the length of my judgment I shall avoid repeating, so far as practically possible, the evidence, findings of fact and extracts from the judge's Reasons which have already been set out in the other judgments but shall supplement them as and when it is necessary to do so.

295.  It is important to remember that the applicants were tried by a professional judge sitting alone. Just what is to be expected of reasons for verdict must vary from case to case: the Reasons ran to 173 pages following a trial which lasted for 50 days.  They have been attacked from almost every possible angle.  I accept that some of the criticism is justified but, looked at in the round and not scrutinised phrase by phrase, dissected line by line, subjected to criticism concerning grammar and verb tenses, the bones are there: they may well have benefited from the addition of a little more flesh in certain areas but there is a necessity to guard against over emphasis of form at the expense of the attainment of justice (and see §382 below).  And the bones are there for the fundamental reason that the evidence was there, that justified the judge making the factual findings he did.

296.  This matter was largely fact-based and depended on the drawing of inferences: there were few issues of law which required decision by the judge, although that may not be how it appears from the arguments before us. With one exception, the judge was correct on the law, too. The point upon which the judge erred led to the acquittal of Egan.

CACC248/2006: the first applicant, Derek

297.  I agree with both the Chief Judge and the Vice President that this application for leave to appeal should be dismissed.  No arguments were advanced by or on behalf of Derek at the hearing of the appeal as there was no appearance, he having absconded after being granted bail.

298.  In essence, the judge found that it was Derek who set the whole process in motion.  Becky, his secretary, whom he believed, with justification, knew where the skeletons were hidden, had been arrested on the same day as he, Friday 9 July 2004. She remained in the presence of the ICAC: he was anxious that the potential damage which she could do to him be neutralised.

299.  Becky’s state of mind concerning Derek, and others, was described by the judge in these terms:

“33. Becky Wong said before she was released on bail, she had expressed fear for her safety.  She said that she had named bankers, financial analysts and wealthy people in her non-prejudicial statements and she feared that they might resort to unlawful means involving the triad society against her.  Also, [Derek] was a tempered person, mostly with Mandy and on rare occasions with his business associates.  [Derek] once showed her a foreign passport and said that he could get one easily, and she feared [Derek] might send her away.”

300.  Derek’s level of involvement and anxiety is apparent from a brief look at the evidence: this evidence is relevant also to Mandy’s application as it demonstrates her role as being a willing participant in the steps taken to obtain access to Becky.

301.  Derek was released on bail on Sunday 11 July 2004.  Soon after his release, Derek went to the office of Frankie Chung, a solicitor's clerk of CK Mok & Co, who had been engaged by Derek's wife to visit Derek and secure his release on bail.  Derek told Frankie Chung that he was "very worried" about Becky and William Lau.  Frankie Chung rejected Derek's request to go to see Becky and William Lau but said he would arrange another solicitor to do so.  At around the same time Derek made a telephone call to Becky: when she saw the identity of the caller she switched off her telephone without answering the call as, by then, she was cooperating with the ICAC and in the company of ICAC officers: she testified that she was embarrassed by his call.

302.  The following day, Monday 12 July 2004, Derek again saw Frankie Chung and was told that, although it had been possible to see William Lau, Becky could not be reached.  Derek described Becky to Frankie Chung as "a fragile person".  Frankie Chung pointed out to Derek that Becky had been with the ICAC for more than 48 hours and that one possibility was that she might be becoming a prosecution witness.  Derek said that he thought she would not do so but, for the reasons set out in §565 of the Reasons, the judge rightly inferred that Derek was worried that Becky may say things damaging to him.  Despite Derek’s admitted boyfriend/girlfriend relationship with the second applicant, Mandy, he described Becky to Frankie Chung as "his intimate girlfriend". So it was from this time at the very latest that Derek must have been aware of the possibility, at least, of Becky cooperating with the ICAC.

303.  During that afternoon there was a call from Derek’s mobile telephone to Mandy's mobile telephone simultaneously with which there was the despatch of a text message from a mobile phone of a person employed by Mandy to Becky's number, the message being "B. request to call chung lawer at onec. 94918238.  M.".  Mandy’s employee denied having sent that text and explained that she had left her phone in her office whilst working.  The telephone number was that of Frankie Chung, to whom "chung" in the message clearly referred.  It is unrealistic to suggest that it was anyone other than Derek who inspired that message and Mandy who sent it.

304.  On Tuesday 13 July 2004 Derek went, with William Lau who had been released by the ICAC, to Lam’s office at about 4 p.m..  Lam arrived a little over 10 minutes later.  Following on brief telephone calls to her, Mandy arrived soon after 5:30 p.m..  Some 15 minutes later Derek, Mandy, Lam and William Lau went to the offices of Massie & Clement where they saw Mr Clement.  However, at some earlier stage, Mr Massie had been contacted, according to Mr Clement, by Lam: as Mr Massie was about to go on leave, he had passed the contact on to Mr Clement, leaving a note.  Derek, Lam and William Lau left the offices of Massie & Clement after some eight minutes, leaving Mandy behind ostensibly to give instructions to Mr Clement concerning an attempt to communicate with Becky: she remained there for, approximately, a further 25 minutes.

305.  Derek went, with Lam, from Lam’s office to the FCC.  Becky went straight to the FCC from the offices of Massie & Clement.  Egan was also present, or arrived, at the FCC.  It was from there that Egan telephoned Mr Clement less than 20 minutes after Mandy had left the offices of Massie & Clement.  It will be recalled that it was in that conversation that Egan told Mr Clement that Lam was agitated, that Mr Clement should be "hammering on the door of the ICAC" and that he, Egan, had instructions from Mandy to arrange for an immediate visit to the ICAC to find out what was happening to Becky.

306.  Mr Clement, who by then was on his way home, arranged for a member of his staff to take a letter of instructions, addressed to Massie & Clement, to the FCC for signature by Mandy: this was to enable Egan to go to try to visit Becky at the ICAC.  Some time after 7 p.m. the staff member saw Derek, Mandy and Egan there and subsequently went with those three persons, in Derek's car, to the ICAC offices where he and Egan were dropped off: Derek and Mandy went on elsewhere in Derek's vehicle.  At 7:30 p.m. Derek went to Frankie Chung's office where he remained for some 45 minutes, during the course of which he indicated that CK Mok & Co should act for William Lau and Becky. Of course, despite purporting to give those instructions to CK Mok & Co on Becky’s behalf, at this stage he had not been in communication with her.

307.  At about midnight that night (13/14 July 2004) Becky telephoned Frankie Chung having seen the text message from “M”, plainly Mandy.  The judge’s summary of what happened then, insofar as it involves Derek, appears at §48 above.

308.  There was also evidence that Derek had telephoned Egan shortly after his dead-of-night meeting with Frankie Chung; that Derek and Lam had telephoned one another during the morning of 14 July; that Derek had telephoned Frankie Chung a number of times that morning.  During the course of one such call Derek had asked Frankie Chung, as opposed to anyone from Massie & Clement, to go with Egan to visit Becky, a request which Frankie Chung apparently sought to reject, but with which, after speaking to Egan, he complied.  The visit to the ICAC, as has been seen, was unfruitful but the telephone records disclose that both before and shortly after Frankie Chung left the ICAC there were three telephone calls between him and Derek: Frankie Chung also made one call to Mandy at that stage.

309.  It was decided that day to launch habeas corpus proceedings.  Massie & Clement required a deposit on fees: this was paid by way of a cheque drawn on a bank account of Ever Brilliant.  A further cheque drawn on that account was issued to Frankie Chung’s employers the same day, apparently in payment of fees for the visit which Frankie Chung had undertaken with Egan to the ICAC that day.  As appears from the Vice President’s judgment, Ever Brilliant was a company the finances of which were underwritten by Derek: on 17 July 2004 he deposited $150,000 into that company’s account.

310.  Proceedings were commenced before Yam J. that afternoon but adjourned to 15 July 2004.  Yam J. granted a writ of habeas corpus returnable that afternoon.  Shortly before lunch, Derek telephoned Egan enquiring of the outcome of the proceedings.  Despite a complete ban being imposed by Yam J on communicating the outcome of the application to anyone, it is abundantly clear from the transcript of that conversation that Egan was to leave Derek in no doubt as to the fact that the writ had been granted but that an appeal was to be launched against that decision.  There was then a meeting in Lam's offices from shortly before 5 p.m. until just after 6:30 p.m. that afternoon at which Derek, Mandy and William Lau were present.  Shortly after those three persons left the offices with Lam, Mandy went to the offices of Massie & Clement and provided information to enable an affirmation to be drafted on her behalf.

311.  Mandy returned to Massie & Clement the following morning and signed the affirmation, that being the affirmation which gave rise to charge 2.  About 30 minutes after she arrived, Derek arrived.  They left together some 20 minutes later.

312.  On 21 July 2004 Derek and Mandy went to a motor car dealer where Derek purchased a used vehicle for $270,000 for which he paid by way of trade in of an existing vehicle, apparently registered in his name but used extensively by Mandy, by cash and by the use of his credit card.  Derek instructed the salesman that the purchased vehicle was to be registered in, and the contract and receipt were to reflect, Mandy's name.

313.  In the light of all this evidence, which the judge accepted and set out in detail in his Reasons but summarised at §§405 to 411, the judge was entirely justified in finding that the prosecution had proved its case against Derek. There is no merit in this application.

CACC248/2006: the second applicant, Mandy

314.  I also agree with both the Chief Judge and the Vice President that the second applicant’s application for leave to appeal the convictions on charges 1 and 2 should be dismissed.  There is little that I feel it necessary to add.

Charge 1

315.  The prosecution case was described, in ground 1.1 of  Mandy’s Amended Perfected Grounds of Appeal, as depending:

“... on the contention that the use of the judicial process to apply for a writ of habeas corpus constituted in all the circumstances a perversion of the course of justice.  Rather, the object of the application, however, was to determine the issue as to whether the Becky was or was not voluntarily in the company of ICAC officers.”

316.  That wrongly characterised the prosecution case which, insofar as the habeas corpus application was concerned, was that it was but one of the means by which the conspirators sought to give effect to their agreement.  This was made clear to the judge, and the parties, at the commencement of the trial when, in outlining the prosecution case, Mr Martin Wilson QC said:

"In order to achieve [the conspiracy’s] aims, various means were used: by attempting to get the witness to ask to make contact with Frankie Chung; by attempting to persuade the ICAC to give access to the witness; by purporting to act in the interests of the witness; by attempting to put pressure on the ICAC by threatening to make a complaint to the Hong Kong police that she was being illegally detained by them and then by making the complaint; by disseminating information to the press in order to obtain publicity for allegations that the ICAC was guilty of false imprisonment; and by making an application for a writ of habeas corpus to the Court of First Instance of the High Court, purporting to be made on behalf of that witness and, in furtherance of that application, submitting to the court two affirmations which contained material assertions about the witness which were untrue." [emphasis supplied]

317.  The judge indicated, in §430 of the Reasons set out in §210 above, that, if Becky were a credible witness, her evidence established that "the acts did have a natural tendency to influence her.".  That plainly was an inference which he was entitled to draw from the evidence before him.

318.  The ground asserts that “…the object of the application… was to determine the issue as to whether the Becky was or was not voluntarily in the company of ICAC officers…”. The judge found to the contrary, that it was a device by which to gain access to Becky in order to influence her:  he was correct in that finding.

319.  For my part, I find no substance in the submission in ground 1.2 that the issue of Becky's voluntariness was reasonably raised.  Such a submission ignores the factual background against which these events unfolded; the arrest of Derek and his desire to protect his interests; and Becky’s evidence generally, but particularly that she had told Mandy directly by telephone that she was "okay" and, twice, that she was "safe and sound".  In context, and notwithstanding the additional submissions made by Miss Montgomery QC, who appeared on behalf of Lam in this appeal but not below, I do not accept that these references reasonably, or sensibly, could have been construed as simply meaning that she was physically well.

320.  Nor did Becky’s evidence disclose, as is suggested, that she was in two minds as to whether to co-operate with the ICAC: her vacillation occurred only after the habeas corpus proceedings were made known to her, when she felt that she may have inconvenienced third parties. It was the conduct of the conspirators in seeking to carry out the objects of the conspiracy that demonstrably had that adverse effect on Becky.  It was clear from her evidence that she experienced a period of indecision and distress once she became aware of the existence of the habeas corpus proceedings.  Her evidence supported that of Mr Ryan, who appeared on behalf of the Commissioner of the ICAC in those proceedings and as a witness in this trial, who colloquially expressed the concern that the proceedings themselves would have the effect of intimidating Becky: the judge accepted Mr Ryan’s evidence.

321.  The judge, although demonstrating his awareness of the criticisms which had been passed, accepted all of Becky’s evidence, as he was so entitled.  His finding in this regard, which appears at §562 of the Reasons appears in full at §215 above.

322.  Contrary to the submission in ground 1.3, Mandy’s role was not, "…to instruct, with the financial support of [Derek], the solicitors Massie & Clement on 13 July in order to express her concerns about [Becky] and, if possible, to obtain her release".

323.  Even from my brief consideration of the evidence as it affected Derek, it was manifest before the judge that Mandy’s role was to lend her name to the events, participating willingly in whatever occurred and do whatever she was required to do to bring about the intended object of the conspiracy.  The most striking example of this is the fact that she was prepared to sign an affirmation in support of the habeas corpus proceedings which, as the judge found, deliberately contained what she knew to be material falsities.

324.  To this must be added two facets of the evidence: first, it was not she who furnished any instructions to Massie & Clement as to the commencement or conduct of, nor was she even present at court at any of the hearings of, the habeas corpus proceedings; secondly, even when Mr Ryan, a person with whom Egan was well familiar, informed the court that Becky was in the witness protection programme, Egan did not even think it necessary to ask for the matter to be stood down in order to take instructions from Mandy, or come to that anyone else, as to the further conduct of the proceedings.

325.  Ground 3, which relates to charge 1, listed 12 matters which the judge was said to have failed properly to take into account in assessing the evidence before him.  These submissions relied upon a slow trawl through the transcript of the hearing, upon a microscopic examination of individual, frequently quite minor, passages of the evidence, out of their true context, which were then used to criticize the judge for notionally not having considered them.

326.  Whilst of course it is necessary for a judge to take into account all of the evidence before him and to consider the effect that the evidence has on the case for any of the parties involved, it is equally his duty both to apply commonsense in the implementation of that approach and to stand back to look at the evidence as a whole and to consider its overall effect. It would be an exceptional case where, on appeal, it were not possible for counsel to be able to point to a facet of the evidence to which a judge has not referred, especially in a lengthy trial such as this.

327.  Whilst there is a duty on a judge of the District Court to provide adequate reasons for his/her decision, just what is required will vary from case to case: what will amount to adequate reasons for a decision will be dependent on the context in which the decision maker is operating and the circumstances of the particular trial. See Oriental Daily Publisher Ltd v. Commissioner For Television And Entertainment Licensing Authority [1997-1998] 1 HKCFAR 279.

328.  There was no indication in this matter that the judge overlooked evidence, even if he did not specifically refer to certain aspects of it. There were extensive submissions made to him by counsel for each accused at the conclusion of the prosecution case and, again, at the conclusion of the trial: those submissions dealt in detail with the evidence. It is quite clear from a balanced reading of the Reasons as a whole, and of the transcript of the hearing, that the judge was fully alive to the elements of the offences, or, in the case of charge 1, what he understood to be the elements; to the issues that he needed to decide; and to the nature, extent and effect of the vast amount of evidence before him. There is a similar lack of merit in the submissions in grounds 3.2 and 3.3.

329.  Ground 3.4 complains of the destruction of ICAC records of telephone intercepts despite a request from Lam that "the relevant records" be preserved.  Mr Caplan QC, who appeared for Mandy in this appeal but not in the court below, allied himself with what was said on Lam’s behalf: similar submissions formed ground 11 of Lam’s grounds and ground 12 of Egan's grounds.

330.  It is convenient to deal with all the submissions relating to this topic at this stage.  Miss Montgomery submitted, particularly, that "the telephone records constituted... real evidence of a critical part of the case, namely [what] Becky had said...", further contending that the records had been destroyed when, first, the ICAC had a duty to retain those records and, secondly, their retention had been requested.

331.  It was suggested that mala fides on the part of the ICAC was demonstrated by the fact that the "records" were destroyed only after Lam had written a letter, dated 10 August 2004, making his request that they be retained. It is pertinent to look at exactly what it was Lam requested:

“I also urge you to order the ICAC to conduct an enquiry with two relevant mobile phone networks to preserve the calling records of 60833118 (mobile number belonging to [Becky]) for the period from 1315 hours to 1330 hours on 11 July 2004 and 95344584 (a prepaid sim card belonging to [Becky]) for the period of 1030 hours to 1045 hours on 12 July 2004 and that of 0030 hours to 0050 hours on 14 July 2004.

The records of the mobile phone networks will prove the making of the calls by [Becky]”

332.  Apparently the contention was that the "duty" was either absolute or arose from the fact that, when Lam asked for the records of the two mobile phone networks to be preserved, the ICAC should have realised the significance of the calls referred to by Lam in his letter and should then have appreciated that they should retain the recordings or the notes arising from them.

333.  It seems to me that any solicitor practising in the field of criminal law in Hong Kong will inevitably be aware of the fact that telephone intercepts are carried out by the ICAC from time to time.  If it was the intercept recordings and product of them that was what, indeed, was sought to be preserved, then one would expect that to have been specifically requested.  I impose no higher expectation on Lam simply because he had been an ICAC officer.

334.  The evidence of Rebecca Li and of Veronica Poon dealt with the procedure of retention and destruction of recordings of telephone interceptions.  The procedure to which each of them spoke was that once an intercept takes place an ICAC officer listens to the recording that has been made and prepares what is known as a "first hand listener’s note".  That first hand listener’s note is then distilled into a document known as an "intelligence summary".  Only in the most exceptional circumstances is even a senior ICAC officer allowed access to the original recording: even access to the first hand listener’s note is strictly controlled and limited to senior ICAC officers: less senior officers are allowed specified access to the intelligence summary. The evidence was that the actual aural recording of the intercept is destroyed approximately 1 week after the intercept occurs whereas the first hand listener’s notes are destroyed approximately a month after the "operation" terminates: it was not clear from the evidence whether this means that the "intercept operation" or the overall operation during the course of which intercepts may be made.  Nothing turned on that in the present matter.

335.  What was destroyed subsequent to the date of Lam's letter were notes made consequent upon those recordings having been reviewed and further distilled.  Moreover it is important to appreciate that what Lam asked to be retained, in very specific terms, was not the records of the intercepts or any product of them generated by the ICAC, but the records of the mobile service providers.  Those records indeed were preserved.

336.  A similar issue arose in HKSAR v MO Yuk Ping & Others DCCC367, 1334, 1360/2004 & 636/2005 in which the ruling refusing an application for permanent stay of proceedings on the basis of destruction of telephone interception recordings contained the following:

“83. In the circumstances, I am satisfied that the policy adopted by the Government of allowing telecommunications intercepts for the purposes only of intelligence gathering and thereafter requiring the destruction of the product flowing there from is rational. The policy, overall, is one which is designed to strike a fair balance between the competing interests at stake and to minimise the inherently intrusive nature of the intercepts.

84.  In the context of the instant matter, the ICAC, if it wished to use telecommunications intercepts, was obliged to follow that policy.  It follows that by adhering to the policy it was under no obligation to retain the product or synopses for the potential purpose of later disclosure in the event that any charges arise.

Was there conduct possessed of "serious fault" or mala fides?

85. It follows from my finding that as there was no duty upon the ICAC to retain the intercept materials, because of the existing policy to which it was subject, that it cannot be said that the ICAC was acting mala fide or that its conduct was unconscionable or possessed of "serious fault" in destroying the material.

86.  It takes no imagination to anticipate the argument, diametrically opposed to the present, if it were to be suggested that the ICAC had acted contrary to that very policy.”

337.  As Hartmann J recognised in MO Yuk Ping v Secretary for Justice HCAL111/2005, an application for judicial review which flowed from that ruling:

“22. The destruction was not an act of bad faith. The purpose was to protect the privacy of third parties. It was done in accordance with set procedure.

.…

26.  I state again that the destruction of the great bulk of the intelligence material was not arbitrary. The destruction of the material was in terms of an administrative or executive policy…to ensure that the rights of privacy of third parties were protected…”

338.  In any event, the intercepts in the instant matter occurred in regard to an intelligence gathering exercise concerning offences which may already have been committed in regard to Semtech and not in regard to the events which gave rise to the instant offences.

339.  In the circumstances, I fail to see how it can be suggested that the ICAC acted mala fides in destroying the tapes, that the destruction was an abuse of the process of court or that it would give rise to the application of the omnia praesumuntur contra spoliatorem presumption.

Charge 2

340.  The judge amended the original charge of perjury to one of attempted perjury for want of form in the affirmation process: he was satisfied, however, that it had been Mandy's intention to make an affirmation which contained statements which, not due to inadvertence or honest mistake, were material and wilfully false to her knowledge – statements by way both of assertion and omission.

341.  Ground 4.1 asserts the necessity of a person to be "lawfully affirmed" before he/she is able to commit the offence of attempted perjury.  With respect, the requirement is that before someone is able to commit the offence of perjury he/she must be lawfully affirmed and it was that requirement that gave rise to the amendment: it was precisely because Mandy had not been "lawfully affirmed", yet signed what she intended to be an affirmation containing what she knew to be material and wilfully false statements, that correctly motivated the judge to amend the charge. That she intended it to be an affirmation and that it was made wilfully, contrary to the submission in ground 4.6, is self-evident from the fact that it was tendered to court in the adjourned habeas corpus proceedings.

342.  The judge's approach to the evidence against Mandy in respect of both charges was appropriate.  He evaluated that evidence adequately and drew the appropriate inferences.

CACC248/2006: the third applicant, Lam

343.  I also agree with the Chief Judge that Lam's application for leave to appeal should be dismissed. There were, in all, 20 grounds set out in the Re-amended Perfected Grounds of Appeal: although not all were elaborated upon individually in argument before us, none was abandoned.  Some have already been dealt with simultaneously when considering Mandy's application and need no further consideration: others have been dealt with by the Chief Judge, which need attract only little, if any, additional comment from me.

344.  Even though I take the view, for the reasons that appear hereunder, that the judge erred when he held knowledge or belief that Becky was not unlawfully detained and did not seek release from the custody of the ICAC to be an essential element of charge 1, I am entirely satisfied that the judge was entitled to draw the inference against Lam that he was well aware that there had been no request from Becky to secure her release.  Thus, the judge’s error was one which favoured Lam as it imposed a higher burden on the prosecution: notwithstanding that higher burden, the judge was properly satisfied of the sufficiency of the evidence.

345.  I agree with the Chief Judge that even leaving aside the supporting evidence which is available from Mr Nattrass in regard to what Lam said to him and from Ms Reimer and Mr Yeung concerning what Lam said at, what has been described as, the "Grissini lunch", there was more than sufficient evidence for the judge to have drawn the inference that Lam had been a party to the conspiracy.

346.  Lam's conduct has already been substantially summarised by the Chief Judge in §§262-291, by the Vice President, and earlier by me in §§304-305.

Conflict of interest

347.  I agree with the Chief Judge that critical evidence was the assertion that Lam introduced Mandy to Massie & Clement because he foresaw a possible conflict of interest between Derek, his client, on the one hand and Becky, and presumably William Lau, on the other, yet this claim is completely controverted by his conduct thereafter.

348.  To my mind, the most striking feature of Lam’s involvement is that within, quite literally, a few minutes of Mandy leaving the offices of Massie & Clement and meeting Derek, Lam and Egan at the FCC, Lam was, as was seen from the conversation that Egan had with Mr Clement, already countermanding the course of conduct planned by the very solicitors to whom Lam had introduced Mandy.  Egan's claim that, by the time of his phone call to Mr Clement, he had already received instructions to go to the offices of the ICAC and that that course had been conceived of by "Mandy" beggars belief - especially in the light of his assertions that Lam was agitated by the course of action which Mr Clement had proposed and that Mandy appeared to be “…like a fish out of water.  She looked like someone who had no idea of what was going on.".

349.  The Chief Judge has set out in detail the communications that were recorded as having taken place between various mobile telephones subscribed to by others and that of Lam.  I will not repeat that evidence, but would observe simply that not only does that evidence graphically illustrate Lam's involvement but the calls with Carmen Hsu of Sing Tao Daily are entirely consistent with Lam’s talk at the Grissini lunch on 15 July of switching on "all the machines" against the ICAC.

350.  To seek to pass off Lam's extensive involvement throughout the period of the events from the earliest stage onwards as being attributable to mere professional concern that the firm to whom he had referred Mandy was acting in her best interests is inconsistent with commonsense.  The judge’s conclusion that Lam was "calling the shots behind the scenes" was right on the mark.

Mr Nattrass’s evidence

351.  The issue of the judge's assessment of Mr Nattrass as a witness has been dealt with by the Chief Judge at §§290-291 and the Vice President at §§189-199.  The judge has been criticised, generally and, specifically in ground 14, for accepting the evidence of Mr Nattrass.  In my judgment, that criticism was unfounded, in this case.

352.  Mr Nattrass was subjected to lengthy and wide-ranging cross-examination, even as to topics which, with respect to the judge, were neither relevant to any of the issues before him nor to the witness’s credibility or reliability.  The judge could not have been anything other than fully alive to the opprobrium which was heaped upon Mr Nattrass at every possible opportunity.  He demonstrated this to be the case. Over the space of 10 paragraphs in the Reasons he dealt with a number of the specific criticisms made of Mr Nattrass from which it was perfectly apparent that he approached Mr Nattrass's evidence with a substantial degree of caution.  And rightly so.  It is repeatedly said, despite being self-evident, that the longer cross-examination lasts, the more opportunity it affords a judge to assess the veracity and reliability of the witness.  The judge had ample opportunity of doing so in this matter.

353.  Despite demonstrating that he was fully aware of the criticisms of Mr Nattrass the judge expressed himself as being "... left in no doubt that Nattrass has been telling the truth about the conversations with [Lam] and [Egan]." Even had the judge felt inclined to deplore some or all of Mr Nattrass's conduct, once he found him to be a truthful and reliable witness in regard to issues which he was required to decide, the judge was entitled to take the evidence into account.  There can be no doubt that that evidence is supportive of Lam's deep involvement in these events and, to a large extent, emanates from Lam himself.

354.  I believe it to be necessary to deal, briefly, with two additional points made in ground 14 in regard to Mr Nattrass’s evidence.

355.  The first is the submission made at §14.5 that the judge failed to consider whether Lam's right against self-incrimination had been violated after accepting that Mr Nattrass was “acting as an ICAC informer” at the time when Lam made the self-incriminatory statement to him; alternatively, that the judge should have exercised his residual discretion to exclude that evidence. That overstates what the judge found Mr Nattrass’s role to have been.

356.  Reliance is placed, for this submission, on Secretary for Justice v LAM Tat Ming & Another [2000] 2 HKLRD 431 and Secretary for Justice v LAM Hong Kwok Popy & Others CACC528/2004. Each is factually entirely remote from the present: in particular, it is important to bear in mind the opening qualification of Li CJ in LAM Tat Ming at 438H:

“At the outset, it is important to observe that by the time the undercover operation started in November 1996, the alleged criminal offences had long been completed and there were suspects. At first the 1^st respondent was a suspect and as the operation progressed the 2^nd respondent also emerged as a suspect. The purpose of the operation was to obtain confessions from them.

This kind of undercover operation should be contrasted with undercover operations by a law enforcement agency conducted where the criminal activities are ongoing and the offences had not been completed. We are not concerned with them in this appeal as different considerations apply to them…”

357.  The Chief Justice went on to say at 447E:

“Ultimately [the certified question] has to be answered by reference to the common law in Hong Kong. In summary, in exercising the residual discretion to exclude a voluntary confession, the judge has to consider whether it would be unfair to the accused to use the confession against him at trial and unfairness is to be judged against what is required to secure a fair trial for him. The protection of his right of silence is a principle of a fair trial...”

358.  Mr Nattrass may have been a public-spirited citizen just passing on information that came his way; he may have been an interfering, self-important busybody: it was unnecessary for the judge to make a finding in this regard.  No matter what Mr Nattrass’s pretences, or the impression he sought to create, may have been, the fact was that he was not at any stage employed by or under the instruction or direction of the ICAC insofar as his dealings with Lam were concerned. He merely passed on information that he thought may be of interest to the ICAC which came his way from time to time.

359.  Even recognizing that a judge does have a residual discretion to exclude otherwise relevant and thus admissible evidence and that a consideration for a judge may be a breach of a constitutional right (see HKSAR v CHAN Kau Tai [2006] 1 HKLRD 400 and the authorities there collected), the issue of the exercise of the judge's discretion simply did not arise on facts of this case.  It is noteworthy, particularly given the intensity with which the defence cases were advocated, collectively and individually, that there was no submission to the judge that this was an appropriate case in which his discretion should be exercised in their favour.

360.  The second point, that in §14.7, submitted that the judge took into account statements made outside of the period of the conspiracy which "... have no bearing whatsoever... " on the conspiracy.  It is correct that the statements made by Lam to Mr Nattrass were made on 30 August 2004, well outside the period charged in the conspiracy which was said to have subsisted between 11 and 17 July 2004.  Conversely, they certainly had a bearing on the conspiracy: they demonstrated Lam's involvement in it.

361.  The submission failed to appreciate the use to which the judge indicated he was able to put this evidence.  The judge specifically stated at §417 "Further, evidence admissible against [Lam] only is the conversation with Aaron Nattrass on 30 August 2004...".  It is quite clear that the judge was aware, correctly, that he could not use, as evidence to prove the conspiracy against the co-conspirators, whatever Lam said to Mr Nattrass unless it had been said in furtherance of the conspiracy.  It is equally clear that the judge regarded this evidence purely as evidence of Lam's knowledge or state of mind at the time the conspiracy existed.  He was certainly entitled to take into account, for that purpose, such statements as he found Lam had made to Mr Nattrass at whatever time, whether within or without the period of the conspiracy.

362.  My view accords with that of the Chief Judge, that this is not an appropriate matter in which this court should interfere with such a fundamental finding of the judge.

363.  Without ignoring the rest of his evidence, the first feature of Mr Nattrass's evidence which is striking is that at a dinner party at Egan's flat on 30 August 2004 at which Lam was present, Lam indicated to Nattrass in the course of conversation that he, Lam, regarded Mr Massie as weak, that Mr Massie should not have cooperated with the ICAC by surrendering the files in the habeas corpus application but instead should have claimed professional privilege and caused the files to be sealed.  That is an aspect of the evidence which the judge was entitled to take as consistent with, and supportive of, Lam's earliest intervention when he overrode Massie & Clement's proposal to write to the ICAC, being of the view that it was an inadequate course of action.

364.  The second singular feature, is his testimony that Lam had asked him, Mr Nattrass, to tell Mr Massie not to disclose to the ICAC that he, Lam, had told Mr Massie that Becky was in protective custody at the time when he initially had referred Mandy to Massie & Clement, on 13 July 2004.  The judge having accepted that Mr Nattrass was telling the truth about the conversations between him and Lam, this is direct evidence that, from the very outset, Lam knew all of the proceedings - not just the habeas corpus application - to be spurious.

365.  The third feature of note is the evidence of Mr Nattrass that Egan had told him that "... Lam would have Massie & Clement sacked and get another firm of solicitors to do the case the way he wanted it done...", which is supportive of the statement by Egan in his telephone call to Mr Clement on 13 July.

The Grissini lunch (Ground 15)

366.  Notwithstanding the submissions made in ground 15, I agree with the Chief Judge’s summary, at §§287-289, and his view that the evidence flowing from the Grissini lunch provides further evidence, and support for the judge's finding, of the extent of Lam's involvement in the conspiracy.  In §332 of the Reasons the judge correctly reminded himself that “The content of the conversation at the Grissini lunch is admissible against [Lam] only.”, just as we have seen that he did in regard to the evidence of Mr Nattrass.

367.  A similar submission concerning the judge’s supposed failure to take evidence into account was made on Mandy’s behalf. I do not propose to repeat what I said in that connection at §§325-328 above. I reject this submission, too.

368.  A singular feature relating to that lunch which should be borne in mind is the evidence that, on that day, Lam was appearing in a trial in the District Court in Wanchai: despite having arrived “around 1.10 pm”, spent “half an hour” having lunch with Ms Reimer and Mr Yeung, and needing to be back in Court, across the road, by 2.30 pm, Lam still went to the FCC to meet Egan. Although Egan stated that that meeting had nothing to do with the habeas corpus application, the judge rejected Egan’s evidence.

Other grounds of appeal

369.  Ground 1 submitted that the basis for Lam’s conviction on charge 1 was fundamentally flawed, the main contention being that the offence charged was one unknown to law.  The Chief Judge has dealt with this issue and I do not propose to repeat what he has said.  Insofar as the submission is made in support of this ground that "The Prosecution accepted and alleged in charge 1 that the means by which access to... Becky was sought to be secured was by way of an application for a writ of habeas corpus" I would emphasise what I said in §316, that this was but one of the means resorted to by the conspirators to achieve their object.  That application was designed to gain access to Becky to influence her against cooperating with the ICAC, not for her benefit or to protect her interests.

370.  Ground 2 asserted that the judge incorrectly drew inferences and provided what are said to be examples, whilst Ground 3 contended that the judge’s approach to his assessment of Becky's credibility was flawed: I have already expressed my view on this when dealing with a similar submission made on Mandy's behalf.  Once the judge accepted the evidence of the prosecution witnesses, particularly Becky and Mr Nattrass, which he did properly in my judgment, then he was entitled to draw the inferences which he did.  He demonstrated that he was fully aware of the circumstances in which an inference adverse to an accused person may be drawn (see KWAN Ping Bong & Anor v R [1979] HKLR 1, PC and TANG Kwok Wah v HKSAR (2002) 5 HKCFAR 209 §§18-25).

371.  Ground 4 asserted an imbalanced analysis of Frankie Chung’s evidence and particularly the judge’s "finding" that Frankie Chung was a co-conspirator in charge 1.  It may well be that Frankie Chung did deny, in his evidence, being one of the conspirators but that is no bar to the judge’s finding, on the evidence as a whole: evidently he did not accept that aspect of Frankie Chung's evidence.  The fact that he chose not to accept one facet of a witness's evidence is no bar to his accepting other evidence from that same witness: if support for this proposition be needed then the observations of Keene LJ, giving the judgment of the court in R v Cairns [2003]1 Cr. App. R 38 at §35 are apposite:

"But it is not uncommon for there to be witnesses whose evidence is regarded by the prosecution as largely, or in part, worthy of belief and reliable but not wholly reliable.  There may be good reason for the prosecution arriving at such a judgment.  It is a normal human experience that people sometimes tell the truth about certain matters but may not be reliable about others, as the verdicts of juries from time to time suggest.  There is no reason why a jury should not regard part of a witness's evidence as true but take the position that they cannot rely on the whole of that evidence.  That not infrequently happens and it seems to have happened in the present case."

372.  Where a judge decides that it is appropriate to adopt such an approach he will then consider the evidence which he accepts with an appropriate degree of caution: it is clear from the Reasons that the judge was fully alive to Frankie Chung's shortcomings as a witness and the fact that he was testifying under an immunity. The fact that the judge also found that he was a co-conspirator, which, it will be remembered, was alleged in the particulars of the charge, is a fact that redounded to the benefit of all of the accused resulting, as it plainly did, in the judge approaching Frankie Chung's evidence with due circumspection.

373.  It is plain from §§568 and 569 of the Reasons that the judge regarded as particularly telling, as to the nature of Frankie Chung's involvement in these events, the fact that his evidence was that when Becky spoke to him at midnight on 13/14 July he made it clear to her that he would only go to see her if she contacted him thereafter: he related this condition to Derek when they met shortly thereafter.  Yet only a few hours later he (Frankie Chung) and Egan went to the ICAC in an attempt to see Becky despite the fact that she had not contacted him again.

374.  The judge supplied cogent reasons as to why it was that he did not accept the truthfulness of Frankie Chung’s diary entry to the effect that Becky had indicated she "wanted to escape from the evil power of the ICAC". In addition to the judge’s observations, that entry was at odds with an insistence that she contact him again if she wished him to help her to do that very thing.

375.  Grounds 5 and 7 related to Lam's knowledge of the bogus nature of the events and his state of mind.  The evidence outlining the basis of Lam's knowledge as well as the issue of conflict of interest has already been dealt with: with respect, these grounds appear to misunderstand the effect of the judge's finding concerning Mr Nattrass's evidence, as already discussed.

376.  Ground 6 suggested that the only way Lam could have learned of Becky’s state of mind was from Mandy and, indirectly, Frankie Cheung.  That ignores the fact that Derek was Lam's client; that the judge found that the conspiracy was put in place for Derek's benefit; that the evidence of Derek's relationship with Becky, which even if his description of her as his "intimate girlfriend" was an exaggeration, was sufficient to enable him to describe her as "fragile"; that, on what was apparently Derek’s first visit to Lam, they had had a meeting in excess of an hour in Lam’s office before Mandy even arrived there; and the evidence that there had been a reference by Lam to Becky being in "protective custody" when passing on Mandy to Massie & Clement as a client, showing the state of Lam’s knowledge.

377.  Ground 8 alleged that the judge assured counsel that he did not intend to rely upon “the fact and frequency” of telephone conversations between Lam, Egan and Hsu without evidence of the content of such calls.  The reality is that no such assurance was ever given by the judge: that emerges clearly from the record of the trial.  Given the highly probative nature of the evidence, such an undertaking or assurance by the judge would have been extraordinary.

378.  This undertaking was identified on behalf of Lam as having occurred "in the course of the closing submissions of counsel for Mr Egan". After listening to the recordings of the closing speeches by all counsel, the only exchange between Mr McNamara, who appeared for Egan at trial, and the judge which bears any relationship to this ground, and then only tangential, occurred when Mr McNamara was dealing with an aide memoire which related to a series of telephone calls which the prosecution contended showed a "triangular exchange" between Lam, Egan and Carmen Hsu.  The exchange was in these terms:

Mr McNamara: If that’s a triangle it’s extraordinarily lopsided. If there’s any inference to be drawn from telephone calls between Andrew Lam and Carmen Hsu, and I suggest that there is not, and Mr Harris has dealt with that, then the lack of participation of Mr Egan in those calls is evident  from the aide memoire, Particularly when we don’t know what the content of any of the telephone calls was.

Judge: I tell you now…if you heard me, when there is no evidence I  do not speculate as to what it could have been. But that may not be equally for both defence and prosecution because for the defence, the defence does not have to prove anything. If the lack of evidence causes me any doubt, of course the doubt goes to the defence.

379.  That indication by the judge met with an appreciative response from Mr McNamara to the effect that he was pleased to hear that, because that was the correct approach to adopt.  This ground was misconceived.

380.  Ground 9: as already discussed, the mere fact that the judge did not mention in the Reasons the specific portions of evidence set out in support of this ground means neither that he failed to take them into account nor that he was unjustified in making the criticised finding.  The portions of evidence relied upon were before the judge and there is simply no indicator whatsoever that he failed to take them into overall account.

381.  The thrust of ground 10 was to criticise the style of the judge’s rendering of the Reasons, criticism which finds itself repeated in a different sense in ground 18 and, in gratuitous terms, in §2.9 "... insofar as the relevant paragraph is comprehensible... "; in §5.1 "this proposition, insofar as it is comprehensible..."; and in §14.6 "the judge's remarks in paragraph 579... are incomprehensible...".

382.  I accept that there are passages in the very lengthy reasons from which the judge's approach or reasoning does not emerge as readily as perfection may desire but as a majority of this court, differently constituted but of which two of us were members, observed in HKSAR v HO Ka Keung CACC196/2007, unreported:

“35.        That is not to say that all judgments must be written in a ‘template’ style.  What is important is that a methodical approach should underpin the intellectual exercise that has to be undertaken in every case.  The more complex the case, the more important it is to apply that methodical approach to avoid any misunderstanding as to how the judge came to his decision.  In the present case however in view of the way in which the judge chose to present his reasons for verdict, it has become necessary for us to ascertain from various parts of the Reasons for Verdict what are the facts the judge has found relating to each element of the offence in order to determine whether the conviction should be upheld.”

and, without adopting a meretricious approach

“76.        That said, to allow an appeal, where there is otherwise clear and sufficient evidence of guilt, simply on the basis that the judge has not slavishly followed a formulaic approach or some perceived stylistic preference is contrary to the interests of justice. As Lord Bingham observed in Singh v The State [2005] UKPC 35, …:

The omission of a good character direction on credibility is not necessarily fatal to the fairness of a trial or the safety of a conviction. Much may turn on the nature of and issues in a case, and on the other available evidence. The ends of justice are not on the whole well served by the laying down of hard, inflexible rules from which no departure may ever be tolerated. “ [Emphasis supplied]

The observation in Singh is particularly apposite given ground 13, below.

383.  As Mortimer V-P, in giving the judgment of the court in HKSAR v Kwok Chi Wah [1999] 1 HKLRD 481 noted, at 486D-E:

“The real issue, therefore, on appeal is whether there was evidence upon which the Judge could make the necessary inferences to the criminal standard in order to convict.”

384.  In particular in regard to ground 10, the contention in §10.1 that Lam never sought to influence Mr Clement regarding the instructions given to him by Mandy chose to ignore the immediate attempt to countermand Mr Clement’s proposed course of action – writing a letter to the ICAC.

385.  The twelfth ground detailed what were said to be "a number of significant errors of fact".  What was meant by §12.1 is, with respect, unclear; the judge's finding referred to in §12.2 was factually correct - what seems to be intended by this ground was that that finding should have been qualified in some way; §12.3 could not have been, on any reading of the Reasons, a finding of fact by the judge but purported to be a rehearsal of Mr Wilson's submission, albeit perhaps an erroneous rehearsal; §12.4 was not a statement of the evidence but a conclusion of the judge which, let it be said, was one to which he would inevitably have been driven on the evidence; the complaint in §12.5 was one of semantics; that in §12.6 occurred during the sentencing process, not as part of the judge's reasoning process for reaching the verdict he did.

386.  The character direction given by the judge formed the basis of ground 13.  The complaint was that the judge limited the effect of the credibility limb of the direction to an accused who has testified, ignoring the applicability of the direction to out-of-court statements made by an accused.  What the judge said was:

“All the defendants are admitted to be of clear record.  I also bear in mind their stations in society.  These are matters I take into account in their favour.  The fact that the defendant is of good character may mean that he is less likely than otherwise may be the case to commit the crime now.  Further, for a defendant who has given evidence, and as with any man of good character, his good character supports his credibility.  This is a matter I should take into account when deciding whether to believe his evidence.” [emphasis supplied]

387.  In my view it is clear that the judge, when using the emphasised phrase, appreciated the effect of the credibility direction even where an accused elected not to testify: to hold otherwise would render that phrase otiose.  It may well have been preferable to have set that out in terms which would have avoided this even being raised as an, albeit unsuccessful, ground. See, in any event, the observation in Singh §382 above, which is particularly pertinent given the judge’s indication that he bore in mind the "stations in society" of all the accused.

388.  It is correct that, as asserted in ground 16, the judge failed to return to a conflict he perceived as existing between what Lam is reported as saying at the Grissini lunch and what he had said to Mr Nattrass. Like the judge, the ground of appeal does not identify the purported discrepancy which is asserted to “…go to the core of the defence…”. It is not our function to speculate on what it was the judge had in mind. That he perceived there to be a “conflict” demonstrates that he was aware of it and applied his mind to it even if, in the course of a set of Reasons running to 679 paragraphs, he overlooked his indication that he would return to it.  The judge adequately evaluated all of the evidence: it follows that he must have been of the view that, whatever the “conflict” may have been, it did not affect any of the material findings he was to make.

389.  Ground 17 suggested that "It would appear to be implicit... that [the judge] found that Andrew Lam was party to the allegedly false affirmation of Mandy....".  In my view, no such conclusion is justified on a sensible reading of the Reasons.

390.  Contrary to ground 18, the judge was fully aware of the onus and burden of proof. He gave himself, as unnecessary as it may have been to do so, impeccable, concise directions at §§547 – 551.  It is correct that he spent some time detailing the evidence he found proven and applying it to the case against Lam: that was a course he followed in respect of each accused. It cannot be gainsaid that he had been made abundantly aware of the suggested inadequacies in the prosecution case, by experienced counsel who addressed him at considerable length at both the conclusion of the prosecution case and in final submissions. In real terms, this is another complaint concerning the judge’s style of expression, with which I have already dealt.

391.  Ground 19 complained of the judge's refusal to find that there was no prima facie case for Lam to answer at the conclusion of the prosecution case.  The judge correctly set out in §364 the principles which are to be applied to such a submission, which emerge from R v Galbraith (1981) 73 Cr. App. R 124.  He provided detailed and compelling reasons for not accepting the submissions, which were made on behalf of all of the accused and not only Lam.  The judge went into considerable detail for his ruling in respect of each accused on each of the charges he or she faced, as appears from the Reasons.  Indeed, it was at this stage that he dealt with the problem which he perceived arising as a result of the person who interpreted Mandy’s affirmation to her from English into Cantonese not having been affirmed.  He was right in making the findings that he did.

392.  The final ground, ground 20, asserted that the conviction is unsafe and unsatisfactory.  For the reasons which I trust have emerged from dealing with each of the grounds advanced, I do not accept that to be the case.

393.  Apocalyptic alarms have been rung concerning the effect on the legal profession as a whole consequent upon Lam’s conviction: this, it was suggested, because the convictions are predicated upon the existence of a duty by a solicitor (and, by extension, a barrister) being obliged to satisfy himself as to the genuineness (for lack of a better word) of a client’s claim. If a client makes an assertion then why, it is asked, should the professional not rely on those instructions - excluding, presumably, the patently absurd?

394.  That is a question which may need to be addressed at another time for that was not the prosecution case, nor was it the basis upon which the judge approached his decision making process. The prosecution case was simple – that there was, from the very outset, an agreement between the named conspirators to pervert the course of justice by influencing Becky against providing assistance or information to the ICAC. To paraphrase the judge’s appreciation of the prosecution case when considering that against Egan, they were all “in it” from the very beginning.

395.  The conduct of Lam, so the judge found, went far beyond the conduct of a solicitor acting on behalf of a client.  There was no suggestion that there is a duty upon a solicitor or, come to that, a barrister to whom different considerations apply, to have a belief in the validity or truth of his client’s proceedings.

396.  An analogy is to be drawn with the situation where a law enforcement agency is proscribed by solicitor/client privilege from monitoring transactions in respect of genuine solicitor/client transactions but such a restriction does not apply where the solicitor/client relationship is merely a sham to conceal unlawful conduct on the part of the solicitor: see Secretary for Justice v SHUM Chiu and Others [2008] 1 HKLRD 155. (For the decision of the Appeal Committee of the Court of Final Appeal see FAMC 5,6,42 and 43/2007.)

397.  Consequently, the views expressed in this judgment will have no adverse effect upon the honest solicitor carrying out the lawful instructions of a client.

CACC248/2006: the fourth applicant, and CAAR8/2006: respondent, Egan

398.  Egan was charged jointly with the other applicants in respect of charge 1, the charge of conspiracy to pervert the course of justice: he was the only one of them who was acquitted after trial, the judge finding at §637 of the Reasons:

“I am satisfied beyond reasonable doubt that Derek, Mandy and Lam did conspire together with Frankie Chung in the one conspiracy to pervert the course of justice in seeking access to and applying for habeas corpus on behalf of Becky Wong when they knew or believed that she was not unlawfully detained and did not seek release from the custody of the ICAC, and they did so with the intention to and did carry out the acts to influence her against providing assistance or information to the ICAC and the acts did have such a tendency which was within their contemplation.”

399.  The prosecution seeks to review that acquittal, contending, primarily, that the judge erred in law when he held, without providing reasoning, at §365 of the Reasons:

“... although the knowledge or belief that Becky was not unlawfully detained and did not seek release from custody of the ICAC was pleaded only in the particulars of the overt acts, I hold that such knowledge and belief is an essential element of the first charge.”

400.  Egan further was jointly charged with Lam on charge 3, a charge of conspiracy to disclose information about the identity of a participant [Becky] in the witness protection programme: they were both acquitted after trial: there is no application for the review of that decision.  He was convicted, after trial, on charges 4 and 5, two charges of attempting to disclose information about the identity of a participant in the witness protection programme: he seeks leave to appeal those convictions. I propose to deal with the Application for Review first.

Charge 1 (CAAR8/2006)

401.  In respect of the first charge the judge set out at §368 of the Reasons the terms of the statutory offence of conspiracy and considered, at §§369-374 of the Reasons, various aspects of the law of conspiracy.  He outlined the underlying theme of Egan's defence in respect of the charge which was that he was merely acting on legitimate instructions; there was nothing on the face of the instructions themselves that required him to call them into question; that he had not joined in a conspiracy at any stage.

402.  At §613 judge said:

“… I must consider whether an inference of knowledge or belief that [Becky] was not unlawfully detained and did not seek release from custody could be drawn against [Egan].  In fact, I will do so for the other defendants as it is apparent from my consideration of the case.”

403.  As has already been seen he did draw the inference against the other three accused.

404.  After going on to consider Egan's evidence, and rejecting it after concluding that he had not been a truthful witness, the judge expressed himself in these terms:

“617.      I am sure [Egan] knew that [Derek] and [Lam] had an interest in the habeas corpus application.  [Lam] gave him the initial instructions at the FCC, and telephone contacts with [Lam] shows [Lam's] concern.  He wrote down [Derek's] name instead of [Mandy's] name in his notebook, although he did not write down [Derek] was his client.  On the other hand, he would not have written down [Derek's] name unless he thought [Derek] was closely related to the case.  He effectively told [Derek] the outcome of the hearing before Yam J.  [Egan] tried to liken his mistrust of the ICAC to the queries by Yam J. and Hartmann J.  With respect, their Lordships did not know about the background and involvement of [Derek] and [Lam].

618.        But then was he misleading the court in not telling [Derek] was his client?  Legally speaking, [Mandy] was his client.  [Mandy] had telephone conversations with [Becky] and she claimed that [Becky] wanted release.  [Egan] might have thought on that basis, [Mandy] was the proper client.  I feel I am in a chicken and egg situation of lie and knowledge on the part of [Egan].  The report to the police, involvement of the press or speaking to Magdalene Chow, extraordinary they may be, do not lead me to a conclusion beyond doubt.

619.        It was submitted that Frankie Chung’s lie to [Egan] was not of significance.  I can of course ignore his lie to [Egan] if [Egan] knew it was a sham all along.  Mr Wilson submitted that [Egan] was already committed in active steps of the agreement before [Egan] met Frankie Chung.  The active steps were the legal visit and telling the ICAC he had instructions to apply for habeas corpus.  But what agreement: the brief or the conspiracy?  That again begs the question of knowledge.

620.        In all the circumstances, I am sure that [Egan] must have known that and intended his acts would have the tendency of influencing [Becky], but I cannot be sure that [Egan] knew it was a sham.  Hence, I cannot be sure of his guilt under the first charge.” [Emphasis provided]

405.  It was unclear to me from the Reasons to what it was the judge referred when he used the expression "knew it was a sham": did he intend to convey everything that was done from the moment Egan first became involved in what the judge found was a conspiracy between the other three accused or did he simply intend to refer to the habeas corpus proceedings?  On reading the Reasons, it seemed to me that the judge was saying that he had to consider whether Egan knew everything done in regard to Becky was a sham, which would have the obvious consequence of placing a wider evidential burden on the prosecution. However, in the Case Stated (§13) the judge appears to assert that he limited his consideration to the status of the habeas corpus application.

406.  It is clear from §620 of the Reasons that the judge was satisfied, beyond reasonable doubt - which, as Mr Reynolds, who appeared for Egan in this appeal but not below, was at pains to remind us is the requisite standard - that Egan had conducted himself in a manner that demonstrated that he “…must have known, and intended, that his acts would have the tendency of influencing Becky Wong”.  The judge had earlier identified this as being the intention required for the commission of the offence of perverting the course of justice and had expressed himself as being satisfied that the evidence established that the other three accused also held that intention.

407.  The judge then went on to acquit Egan on the basis that the prosecution had failed to prove that Egan knew or believed that Becky was not unlawfully detained and did not seek release from custody of the ICAC, observing that he could not be sure that Egan "…knew [the habeas corpus application] was a sham".

408.  The effect of the judge's finding, as emerges from the Reasons, is that he made no further findings concerning Egan.  In view of the order that I would propose, it is not appropriate for me to make any further comment on what findings the judge ought to have made.

409.  The judge made two further oblique references to Egan's lack of participation in the conspiracy - at §632 that “The result of involving the press was achieved notwithstanding [Egan] was not in the conspiracy" and at §674 "I find that he did intend to disclose when he made the disclosure to Magdalene Chow albeit not within the conspiracy of the first charge" but it is clear that, rather than individual findings of fact that Egan was not a party to the conspiratorial agreement as has been suggested on Egan's behalf, those were observations consequent upon the basis of his earlier acquittal of Egan.

410.  In the Case Stated, after summarising the evidence the judge said the following:

“13. However, I drew a distinction between [Egan] and the others on the basis that I could not be sure that [Egan] knew that the application for habeas corpus was a sham.

14.  On my findings of fact, the first part of (a) in the particulars of the means by which the prosecution alleged that the accused sought to gain access to Becky Wong, the whole of (b) and (c) and the second part of (d) did not apply to [Egan].

15.  I held that, although the knowledge or belief that Becky Wong was not unlawfully detained and did not seek release from the custody of the ICAC was pleaded only in the particulars of the overt acts, such knowledge and belief was an essential element of the first charge.

16.  I found, therefore, that [Egan] was driven by two considerations:

(a)    his professional duty to seek the release of Becky Wong on the instructions of his lay and professional clients that she was being held against her will; and

(b)    his intention to influence her against providing assistance or information to the ICAC.

17.  It was accepted by the appellant in response to a question from me that if [Egan] was solely motivated by the belief that Becky Wong was being held against her will, then that would be the end of his prosecution.

18.  It was contended on behalf of the [Egan] that this must mean that the prosecution must prove beyond reasonable doubt that it was not his belief.

19.  I was not referred to any cases.

20.  Although I was sure that the respondent did intend to influence Becky Wong's participation in the witness protection program, I acquitted him on charge 1 because I could not be sure that he was not motivated by the belief that Becky Wong was being detained by the ICAC against her will.

21.  I said "Say if at the material time [Egan] did believe that Becky Wong was being held against her will and as such he also wanted to influence her against providing assistance to the ICAC, and it turned out that Becky Wong did seek to be released from the ICAC, would [Egan] have the requisite guilty intent?  I say not".  In other words, if there were mixed motives he should be acquitted of the first charge.

Questions this Honourable Court is asked to answer.

The questions of law arising on the above statement for the opinion of this Honourable Court therefore are:

(1)    Did I err in holding that the knowledge or belief that Becky Wong was not unlawfully detained and did not seek release from custody of the ICAC was an essential element of charge 1?

(2)    Did I err in concluding that before I could convict [Egan] on the charge of conspiracy to pervert the course of public justice, I had to be satisfied beyond reasonable doubt that [Egan] knew or believed that Becky Wong was not unlawfully detained and was not seeking release from ICAC custody?

(3)    Did I err in acquitting [Egan] notwithstanding that I found that he had sought access to Becky Wong and used the media to publicise and allegation that she was being held against her will with the intention of influencing Becky Wong’s participation in the witness protection programme, an object of the conspiracy, nevertheless I could not be sure that [Egan] was not motivated by the belief that Becky Wong was being detained by the ICAC against her will?

(4)    Did I err not convicting [Egan] of the charge of conspiracy to pervert the course of public justice given that I found that he intended to influence Becky Wong against providing assistance or information to the ICAC and given that I found that by the 15th July, [Egan] believed that Becky Wong was a participant in the witness protection programme?

411.  The point is made on Egan's behalf in response to the Case Stated that the "true basis" for the acquittal is wider than that set out in §20 of the Case Stated: reference is then made to the contents of §§13, 15 and 20 of the Case Stated.

412.  I do not agree.  It is quite clear from §620 of the Reasons, set out at §109 above, that the reason why the judge acquitted Egan was because (a) he had found that knowledge or belief that Becky was not unlawfully detained and did not seek release from custody of the ICAC was an essential element of the offence and (b) he was not satisfied that that had been proven by the prosecution.

413.  §13 of the Case Stated adverts to a material fact – his inability to make the finding that Egan knew the habeas corpus proceedings to be a sham - which, obviously, may have helped the judge arrive at his decision as to whether the prosecution had proven the perceived element of the offence.  It is not a separate basis of acquittal.  §20 is simply a consequential consideration of the basis of the acquittal.

414.  It seems to me that, with respect, the judge confused what it is necessary for the prosecution to prove as being one of the essential elements of the offence with evidentiary considerations which he need address in arriving at that proof.  The judge had to be satisfied that the prosecution had proven both the actus reus and the mens rea of the offence.

415.  The existence of a conspiracy is sometimes proven by the evidence of one conspirator against his co-conspirators; sometimes by a confession by a conspirator admitted into evidence against him; sometimes solely by the proof of a series of facts from which the tribunal is invited to draw as the irresistible inference the existence of the conspiracy; sometimes by an amalgam of the three. This trial fell into the fourth category, for there was evidence from the named co-conspirator, Frankie Cheung, as well as proof of a series of facts upon which the prosecution relied.

416.  A conspiracy is simply an agreement between two or more persons to perform an unlawful act or a lawful act by an unlawful means, as the judge rightly recognized.  The actus reus of the offence is the agreement itself, the mens rea being the intention of the particular conspirator to be a party to the agreement and “…to play some part in the agreed course of conduct in furtherance of the criminal purpose which [it] was intended to achieve.” (R v Anderson [1986] AC 27 at 39E).

417.  In this case, the prosecution alleges that the unlawful act which the conspirators agreed to perform was that of perverting the course of justice.  Perverting the course of justice is a substantive offence which consists in the doing of an act which has a tendency to pervert the course of justice or perform an act with an intent to pervert the course of justice (R v Rogerson & Ors 107 ALR 225 at 230). The gist of the offence is conduct which may lead, and is intended to lead, to a miscarriage of justice whether or not a miscarriage actually occurs (R v Machin [1980] 1 W.L.R. 763 at 767).  The use of unlawful means is not an essential ingredient of the offence: the gist of the offence lies in telling a potential witness what he should or should not say - or, I would add, intimidating a potential witness - with the intention of influencing his evidence, not in the means adopted (R v Toney [1993] 1 W.L.R. 364 at 368 - cf. R v Kellett [1976] 1 QB  372 at 388D).

418.  Neither of these encapsulations envisages the incorporation, as an essential element of the offence of conspiracy to pervert the course of justice, the necessity to prove, in the instant case, the state of knowledge or belief of the conspirators regarding the nature of Becky’s remaining with the ICAC and any desire for release, as opposed to their intention.  At the risk of stating the obvious, proof of knowledge or belief may aid the proof of intention.

419.  The prosecution case, as I understand it, was not that the act that had the tendency to pervert the course of justice which the conspirators would perform was the bringing of the habeas corpus application as has been the focus of much argument, but it was that of influencing her against providing assistance or information to the ICAC.  To do this they needed to gain access to her: the habeas corpus application was one method of doing so.

420.  If they succeeded in so influencing Becky the prosecuting authority would be deprived of the evidence of a material witness, to its detriment. They intended, the prosecution asserted, to perform that act with the consequence that the course of justice be perverted. It was the act of influencing her against providing assistance or information to ICAC which would have the tendency to pervert the course of justice. For that reason it did not matter whether Becky was being held against her will or not, nor did it matter whether she was seeking release from the ICAC or not: the conspirators’ intention was to influence her against providing assistance or information to ICAC and that could be done irrespective of her status or wishes.

421.  When the prosecution alleges a conspiracy it is incumbent upon it to identify, amongst other things, the parties to the agreement and the object/s (or term/s) of the agreement.  It is only the object/s of the agreement which need be proved in order to secure a conviction. See Thomas L.J. in R v K [2005] 1 Cr. App. R. 408 at §33:

“The question for us to determine its what was the agreement specified in the indictment preferred against these appellants.  In doing so, we must have regard to the distinction between the ingredients of the offence and the particulars which give reasonable information as to the nature of the charge in this form of indictment as required by the decision in Landy.  As Lawton L.J. pointed out the purpose of the particulars was to set out the nature of the case and to prevent the prosecution shifting its ground.  In Hancock, it was made clear that the particulars given in an indictment in the form in common use did not mean that those particulars later became ingredients of the offence.” [emphasis supplied]

yet this is precisely what it appears from §365 of the Reasons the judge did in this matter.

422.  Thomas L.J. continued at §34

"Bearing in mind the clear distinction which must be drawn between the ingredients of the offence and the particulars, we are satisfied that the agreement alleged in this indictment was that spelt out by the judge in his summing up.  It was an agreement for a single specified purpose... particulars (a) - (l) were given only to provide reasonable information as to the nature of the charge and as to the principal matters upon which the prosecution would invite the jury to infer that there was an agreement... and that each of the defendants was a party to it: the particulars did not purport to define the agreement...."

423.  Since Landy (1981) 72 Cr.App.R. 237 the conventional method of particularising a charge of conspiracy, especially conspiracy to defraud, is to identify overt acts on the part of the conspirators, or some of them, upon which the finder of fact may rely in order to draw the inference of the existence of the conspiracy itself, those overt acts then appearing in the ‘particulars’ of the offence.  It is unfortunately so that the drafting of the particulars of a charge of conspiracy may fail to clearly identify and distinguish between (i) the object/s of the conspiracy; and (ii) those overt acts on the part of the conspirators which tend to prove the existence of the agreement between them.

424.  In many instances, as in this, there will be a close relationship between the object/s and those acts which lead to the inference of the conclusion of the agreement.  It is the lack of careful identification and separation of the two concepts which frequently gives rise to a misunderstanding as to just what it is the prosecution is required to prove in any given case.

425.  The charge in the instant case, however, was an example of clarity: the objects of the conspiracy, or what the conspirators agreed to set out to achieve, are clearly identified as being (i) to gain access to Becky Wong; (ii) to ascertain what she had said to the investigators of the ICAC; and (iii) to influence her against providing assistance or information to the ICAC.

426.  The particulars of the charge then identify four specific overt acts by one or more or all of the applicants as being the means whereby the objects of the conspiracy were sought to be attained.  What the judge had to be satisfied about was that each applicant, for him/herself, had agreed with one or more or all of the other applicants that they would (i) gain access to Becky Wong;  (ii) ascertain what she had said to the investigators of the ICAC; and (iii) influence her against providing assistance or information to the ICAC: that each applicant intended that the offence would be carried out: that, in order to achieve those objects, one or more or all of the acts set out in paragraphs (a) to (d) of the particulars of the charge would be performed.

427.  In Rogerson & Ors, supra, at 230 Brennan and Toohey JJ said:

"At common law, attempting to pervert the course of justice, like perverting the course of justice, is a substantive offence.  It consists in the doing of an act which has a tendency to pervert the course of justice with an intent to pervert the course of justice.  A conspiracy to pervert the course of justice, like any other conspiracy to commit an offence, is an inchoate offence in the sense that it is complete without the doing of any act save the act of agreeing to pervert the course of justice.  Such an agreement imports a common intention among the conspirators that an act be done by somebody which will have the effect of perverting the course of justice."

and, further:

"... The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various.... An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice.... An agreement that an act which has such an effect and which is not otherwise justified in law is the actus reus of the conspiracy to pervert the course of justice."

428.  At 232 they said:

“Of course, where there is an agreement to do an act that has a manifest tendency to pervert the course of justice, proof of an agreement to do the acts may suffice to prove the intent thereby to pervert the course of justice.  But, if the act to be done is of such a nature that its tendency to pervert the course of justice is not manifest, proof of an agreement that the act be done does not, without more, amount to prove the conspiracy to pervert the course of justice: in such a case there has to be a proof of an intent to do an act that will have the effect of perverting the course of justice.” [emphasis supplied]

429.  It is important to appreciate the fact that Rogerson & Ors recognizes that two situations exists: either (a) the conspirators know that the act which they intend to perform will have a manifest tendency to pervert the course of justice or (b) they agree to perform an act which they intend to have that effect.  This was emphasised when the Court went on to say:

"To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect."  [emphasis supplied]

and, again, at 234:

"When the Crown must rely on inference to prove the intent of the alleged conspirators to pervert the course of justice by the doing an act which tends to mislead the police in the conduct of an investigation into a possible offence, the evidence must be capable of supporting at least:

(1) an inference that the conspirators believed that the police might invoke the jurisdiction of the court or of some competent judicial authority or might invoke that jurisdiction unless the relevant act deflected them; and

(2) a further inference that the conspirators either knew that the relevant act would have a manifest tendency to pervert the course of justice in a relevant respect or intended that the action had that effect.

It is not sufficient for the Crown to prove merely an intention to deceive the police"  [emphasis supplied]

430.  Bearing in mind the act which the prosecution alleged the conspirators agreed, it was necessary for the judge to be satisfied that that act was intended to be performed so as to pervert the course of justice, for their acts, by themselves, would not have had a “manifest tendency” to pervert the course of justice.  That intention, of course, is precisely what the judge did find in respect of each of the applicants.

431.  In order to arrive at his finding the judge was entitled to look at the conduct of each applicant (and all of them, within the limits of the co-conspirator rule) including the conduct alleged in the four particularised items.  If the judge was satisfied that the evidence as a whole established, beyond reasonable doubt, the irresistible inference that any particular applicant was a party to the agreement and had intended to play some part in the agreed course of conduct in furtherance of the criminal purpose, then it was open to the judge to convict that applicant.

432.  What the prosecution did not allege was that the four stipulated overt acts were objects/terms of the conspiracy: it was not the prosecution’s case that they specifically agreed, for example, that one or more or all of them, in pursuance of the conspiracy, would launch habeas corpus proceedings. Indeed, the evidence shows that those proceedings were launched well after the conspiracy had commenced. Those proceedings were not alleged to be, and nor were they, an element of the offence (in the sense of being an essential object/term of the agreement) but merely one of the overt acts upon which the judge was entitled to rely in order to be satisfied that he was able to infer the existence of the conspiracy.

433.  It is for this reason that whether Egan knew or believed that Becky was not unlawfully detained and did not seek release from custody of the ICAC or, consequently or otherwise, knew that the habeas corpus proceedings were a sham, were not individual issues about which the judge need be satisfied, although, if he were able to be satisfied about either of those issues, his task of inferring Egan’s intention may well have been made the easier: the fact of which the judge had to be certain was that it was his intention, in common with the co-conspirators, to gain access to Becky Wong; to ascertain what she had said to the investigators; and to influence her against providing assistance or information to the ICAC with the intention that, as a result of that influence, she would not provide assistance or information to the ICAC, and the course of justice would thus be perverted. This is precisely what he found Egan’s intention to be, as well as that of the other three applicants.

434.  It is self-evident that if the judge was satisfied that a particular applicant indeed knew or believed that the habeas corpus proceedings were a sham, that would facilitate the drawing of an inference against that applicant: but it does not follow that the inference could not be drawn from other evidence.

435.  I accept that, in a given factual situation, and, perhaps, particularly where a barrister is involved - a matter to which I shall return - it may not be possible for a finder of fact to make a finding in a particular case in respect of proof of mens rea absent being able to make a finding of knowledge or belief.  That, however, does not elevate the knowledge or belief of the party to the status of an element of the offence: what it does is to create an evidentiary hurdle for the prosecution.

436.  I am satisfied that the judge did err in holding that the knowledge or belief that Becky was not unlawfully detained and did not seek release from custody of the ICAC was an essential element of the offence.

437.  Considerable time was occupied during the hearing of this appeal in minute dissection on behalf of the applicants of each of the three described elements of the object of the conspiracy and, to an extent, of the overt acts pleaded in the particulars of offence.  Whilst, obviously, such an approach is not necessarily inappropriate, there are times when it has the effect of obscuring the wood for the trees.  This seems to be one such.  It was the totality of the evidence from which the judge would draw inferences and upon which he would base his decision.

438.  In general terms it was argued that there is no property in a witness: as a consequence it was lawful to attempt to gain access to Becky; it was lawful to ascertain, or attempt to ascertain, what she had said to the ICAC; and it was lawful to ensure that she was aware that she was under no obligation to co-operate with the ICAC and could refuse to do so should she so wish.  It was specifically urged upon us, in regard to the overt act of the application for a writ of habeas corpus, that, as such a course was one provided by law, the use of that procedure could not constitute an unlawful means of attaining the object of the conspiracy, absent a perversion of the habeas corpus process itself.

439.  Authority and counter-authority were proffered in support of each of these propositions which I do not believe it to be necessary to traverse for none is, to my mind, controversial or, by itself, an incorrect statement of legal principle.  But what was not reflected by any of the individual arguments advanced was that the intention of the conspirators was to be inferred from their conduct, from the manner in which the, superficially legitimate, means were employed or exploited.  It is from the cumulative effect of the individual actions that the true intention appears.  And that true intention, as the judge correctly found, on the evidence as a whole, in respect of each of the applicants, including Egan, was to influence Becky against providing assistance or information to the ICAC.

440.  As Stephenson L.J. observed when giving the judgment of the Court of Appeal in Kellett, supra, at 388D:

"Threats and bribery the means used by offenders in the cases, and any pressure by those means... would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness.  If he altered his evidence or will not give it a "through affection, fear, gain, reward, or the hope or promise thereof" (in the words of the oath which used to be administered to the Foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope."

441.  In regard to the second question, considerable reliance was placed on the fact that, as a barrister, Egan was under a duty to give effect to his instructions according to The Code of Conduct of the Bar, the relevant provision of which the Vice President has set out at §108 above.  That, too, is non-controversial: I did not understand Mr Wilson to dispute that.

442.  I readily acknowledge that it must be that that duty has the effect of introducing a specific consideration in the case of Egan, quite separate and distinct from the other applicants.  It is unclear from the judgment whether this was the, or a, factor which the judge took into account in arriving at his decision that knowledge or belief that Becky was not unlawfully detained and did not seek release from custody of the ICAC was an essential element of the offence and that before he could convict Egan he had to be satisfied that Egan knew the habeas corpus proceedings to be a sham.

443.  Where a judge is required to consider the question of the intent of a barrister appearing on a particular charge before him in circumstances where that barrister’s professional duty is engaged, it may well be that the judge would find himself unable to determine the intent unless he is able to make a specific finding as to that barrister’s knowledge or state of mind.  In such a case it may well be that the judge would adopt the attitude that the barrister's discharge of his professional duty raises a doubt in his mind as to the barrister’s intent.  However, whether that situation arises will be dependent upon the nature of the charge and upon the evidence presented in that particular case.

444.  Because I would refer this matter back to the judge to reconsider his decision in the light of what I view it as necessary for the prosecution to prove to be the essential elements of the offence, it would be inappropriate to express any view on whether the judge was correct in finding that Egan must have known, and intended, that his acts would have the tendency of influencing Becky Wong. If the judge were unable to be satisfied as to that issue it would be open to him to acquit, if that caused a reasonable doubt in his mind as to Egan’s intention; or, based on the totality of the evidence as a whole, to convict.

445.  Question 3 appears to be intended to address the judge's finding that if Egan had mixed motives, that is that he believed both that Becky was being held against her will and that he also intended to influence her into not co-operating with the ICAC, he still was entitled to be acquitted (§612 of the Reasons and §21 of the Case Stated).

446.  With respect to the judge it appears that he has failed to recognize the important distinction between Egan's intention and his motive when he made this finding.

“In ordinary parlance, the words "intent" and "motive" are frequently used interchangeably, but in the criminal law they are distinct.  In most criminal trials, the mental element, the mens rea with which the Court is concerned, relates to "intent", i.e., the exercise of a free will to use particular means to produce a particular result, rather than with "motive", i.e., that which precedes and induces the exercise of will.  The mental element of the crime ordinarily involves no reference to motive: 11 Hals., 4^th ed. (1976). P.17 para. 11.”

per Dickson J in  Lewis v The Queen 47 C.C.C. (2D) 24 at 33.

447.  In reply to a question by the judge Mr Wilson accepted, as obviously he was obliged to do, that if the evidence were that Egan was solely motivated by the belief that Becky was being held against her will, that would be the end of the prosecution (§610 of the Reasons), for Egan could not have had the required mens rea for the offence.

448.  In my judgment, whether Egan’s motive for making the habeas corpus application was because he genuinely believed that Becky was being held against her will or whether he simply acted unthinkingly in terms of the instructions given to him, does not absolve him from criminal liability provided it is proved that he possessed the requisite mens rea of the intent to influence Becky into not co-operating with the ICAC.  I am unable to discern any reason, in law or in logic, why, in such circumstances, motive and intent could not coexist.

449.  I find support for this view in Kellett, supra, where, at 392, Stephenson L.J. said:

“Where it is made with threats - or promises – it is committed notwithstanding that the threat is a threat to do a lawful act, provided that one of the motives which activates the accused in making the fact is to intimidate the witness into altering or withdrawing evidence.... If the defendant's intention... was to make [the witnesses] withdraw their statements and not give evidence in accordance with them, he was guilty of the offence charged, whether he had in mind any other consideration or whether he intended to go on with the action in any event.”

450.  The fourth question as to whether the judge had erred in not convicting once he had found that Egan intended to influence Becky against providing assistance or information to the ICAC and, additionally, once he had found that by the 15th July, Egan believed that she was a participant in the witness protection programme must similarly be answered affirmatively.  Once the judge found that Egan believed that Becky was participating in the witness protection programme, which finding was made at §674 of the Reasons and in my view correctly so, not only did the entire substructure for the habeas corpus proceedings cease to exist, but persisting in prosecuting those proceedings was the clearest possible evidence supporting the drawing of the inference in regard to Egan's intent - further supported, it may be said, by his not even seeking the briefest of adjournments to take instructions as to further courses to be followed.

451.  Accordingly, I would answer each of the questions posed by the prosecution in the Application for Review in the affirmative.

452.  I am satisfied that, following upon the decision of this court, differently constituted, in Secretary for Justice v WONG Sau Fong [1998] 2 HKLRD 254 at 265J-266C, we have the power to refer this matter back to the judge with an order that the trial be resumed.  Despite the lapse of time since this offence was alleged to have been committed, I adjudge that to be the appropriate course in all the circumstances. Consequently I would set aside the acquittal and remit the matter to the trial judge for the trial to resume in accordance with the clarification now made as to the elements of the offence alleged in charge 1.

CACC248/2006: charges 4 and 5

453.  I find that I am unable to agree that the application in respect of these two charges should be allowed.  The format in which the Re-Amended Perfected Grounds of Appeal filed on behalf of Egan have been presented permits of a more generalised approach in dealing with them although individual comment on some remains to be made, not least as a courtesy to counsel.

454.  The Vice President has set out at §125 the relevant provisions of s. 17 of the Witness Protection Ordinance, Cap. 564 and also in some detail, the circumstances surrounding the commission of these offences.

455.  The first important issue seems to me to be whether or not this court, effectively, ought to set aside the judge's finding that, at the time the disclosures were made Egan believed Becky to be a participant in the witness protection programme.

456.  That Egan believed Becky to be a participant in the witness protection programme was a finding of fact which the judge made, having heard the evidence from Magdalene Chow, which he accepted, and having heard Egan's evidence, which he rejected.  It is true that throughout his evidence Egan denied ever having believed Becky to be voluntarily with the ICAC: the judge rejected that evidence in terms. That was a course which the judge was entitled to take.

457.  He provided compelling reasons, particularly for rejecting Egan's evidence. The judge said, at §674:

“After considering all the circumstances and what [Egan] have said to the courts on 15 July, I reject his evidence that he did not believe Becky Wong was in the WPP.  I am sure that he did believe that Becky Wong was in the WPP when he made the disclosure to Magdalene Chow notwithstanding he had instruction that Becky Wong wanted to leave the ICAC.  Before Mr Ryan said Becky Wong was in the WPP, the position was [Egan] told Daphne Lim of that and in the complaint letter of 13 July 2004, and what he had indicated to Mr Ryan that he believed Becky Wong was in protective custody in a safe house but he had further instructions that she wanted to leave."

458.  Thus it was that the judge, in addition to considering all of the evidence, was relying upon three specific aspects of the evidence which he set out: first, that during his first visit to the ICAC Egan in effect had conveyed to Daphne Lim that he realised that if Becky was not being detained there by the ICAC then she was being "kept" by them somewhere else, the obvious implication from that being that she was co-operating with them; secondly, he communicated a similar appreciation of the situation in what has been called his complaint letter; and thirdly, he had indicated to Mr Ryan that he believed Becky was in a safe house but, that notwithstanding, he had instructions that she wished to leave.

459.  Moreover, the judge had before him the transcripts of the habeas corpus proceedings, including the appeal during which the following exchange occurred:

“STOCK JA: …what reason do you have to believe that what we’ve been told by the ICAC through Mr Ryan is untrue?

…

Because…it’s one hell of a story to be making up

EGAN:  My Lord, I don’t suggest that the ICAC or Mr Ryan are in the habit of making things up…”

460.  Although Egan went on to qualify that statement by reference to his “long, bitter experience” with the ICAC it is clear that he was not suggesting that the information provided to the court that Becky was in the WPP was in any way untrue. Such a stance is wholly inconsistent with his professed disbelief.

461.  The judge went on to say:

“With the disclosure of Becky Wong being in the WPP, mutatis mutandis, [Egan] did believe that Becky Wong was in the WPP notwithstanding he had instruction that Becky Wong wanted to leave the ICAC.”

although it is not entirely clear what it was he intended to convey by inserting the Latin expression.  Be that as it may, it was a finding of fact, on evidence that he found credible, which he was entitled to make.

462.  Just as in the case of the evidence given by Mr Nattrass where I concurred with the Chief Judge, my view is that this is not an appropriate matter in which this court should interfere with such a fundamental finding of the judge.

463.  This is a convenient point to mention Grounds 5, 7, 8, 9 and 10 which all complained of a failure on the part of the judge to evaluate the evidence of various witnesses.  At the risk of repeating myself, the judge demonstrated that he was aware of the issues before him and traversed the important aspects of material witness's evidence during the course of his very lengthy Reasons.  No doubt there may be other aspects of the evidence which Mr Reynolds would have preferred be included in the Reasons: that they were not does not mean, as I have already said in a different context, that that evidence was ignored.  The Reasons, overall, were sufficient.

464.  The judge set out, at §469 of the Reasons, the three questions he felt it was necessary for him to answer in order to decide whether Egan was guilty of these offences.  The first, whether Egan believed that Becky was in the WPP was, in my view, correctly answered by the judge in the affirmative.  Mr Wilson submitted that this was an unnecessary question for the judge to have posed.  It may have been but I do not regard it as necessary to decide that issue as, if it were an unnecessary question, it was one which raised the barrier of proof and thus was to Egan's benefit.

465.  The second question which the judge addressed was whether, possessed of that belief, Egan did disclose the identity of Becky as a participant in the WPP.  This effectively, formed the basis of ground 4 of the grounds of appeal. Again, in my judgment, the judge was correct when he answered this question affirmatively.

466.  The judge set out Magdalene Chow's evidence at §§272, 273 and 276 of the Reasons (quoted by the Vice President at §140 above). At §§661 and 662 of the Reasons (quoted at §143 above) the judge found, in respect of each of the conversations which Magdalene Chow described as having had with Egan, the only irresistible inference to be drawn from what Egan said was that Becky was a participant in the witness protection programme.  In this sense he echoed the testimony of the witness Magdalene Chow who said: “…from the conversation between Mr Egan and me that afternoon that was the only logical and reasonable inference I could draw.”  It is of course necessary to look at just what it was the judge found Egan to have said in those conversations and to have regard to the context in which it was said.  The judge conducted that exercise.  For my part, I agree with the inference that he drew in each instance.

467.  The question as to whether what he found Egan did amounted to an intention to disclose for the purposes of s. 17 remains.  Although the judge did not specifically use the verb "disclose " at that stage, first, it is implicit from the inference that he drew in respect of each conversation and, secondly, he made the specific finding at §674:

“I find that [Egan] did intend to disclose when he made the disclosure to Magdalene Chow albeit not within the conspiracy of the first charge.” [emphasis provided]

468.  In my judgment, it is the intention of the accused which is determinative – did he intend to “disclose information”. It is plain on the facts, as the judge found, that by the time he spoke to Magdalene Chow, Egan believed Becky to be in the witness protection program: he made such overt references during the conversations that he had with her that, on each occasion, she could not have failed to have concluded that Becky was a participant in the WPP: on each occasion he intended to disclose information, in the ordinary, everyday, meaning of that phrase, concerning his knowledge of Becky’s status – and it is against such disclosure that the legislation is aimed.

469.  The fact that one may disclose information on more than one occasion, to the same person, does not prevent the person making the statement from having intended to disclose that information. Nor does it matter if the information is the same – which, in any event, it was not, according to Magdalene Chow’s evidence – if the speaker intended to disclose the information. That the information disclosed may already be known to the listener does not affect the intention of the speaker: if a speaker intends to disclose information to a listener which, unbeknown to him, the listener already knows, it surely cannot be that the speaker would be absolved from criminal liability.

470.  The third question on this topic which the judge addressed was whether Egan intended to commit the offence. Despite Egan’s denials, the judge found that he had done so: that was the only inference he could draw once he had rejected Egan’s evidence.

471.  There remains the issue of “identification”, of whether the judge was correct in finding that it was Egan who imparted the information to Magdalene Chow. This arose particularly in the context of her having said that the person who spoke to her had turned away to smoke a cigarette: there was unchallenged evidence that Egan did not smoke: Mr Clement, who was also at Court, although, according to his evidence, not continuously in Egan’s company, is a smoker. A further factor is that Magdalene Chow testified that the person who had spoken to her had made reference to “drafting” and to “filing” the habeas corpus application, the argument being that a barrister would not say such things: Mr Clement’s evidence was that he had performed those functions.

472.  This issue of identity of the speaker was an issue which was four square before the judge. I unhesitatingly accept that it was an issue which ought to have been addressed in terms in the course of the Reasons, albeit that the judge did review the evidence in general (§§652/653 and 655).  Were it but for one matter, I may well have regarded such a failure as fatal to the conviction.

473.  That one matter is that Egan accepted that he had spoken to Magdalene Chow and that he had, on his version, made a reference to the Witness Protection Ordinance. The judge was entitled to have regard to that aspect of Egan’s evidence as being supportive of Magdalene Chow’s assertion that it was Egan to whom she had spoken. I am satisfied that the judge was entitled to make the finding he did.

474.  I shall refer briefly to the remaining grounds of appeal. Ground 1 submitted that it was inconsistent of the judge to acquit Egan on charge 1 yet convict him on charges 4 and 5. That does not take account of the basis of the acquittal on charge 1: it was a narrow and distinct issue, where the judge found that the prosecution had failed to prove what he thought to be an essential element of that offence. The offences in charges 4 and 5 were entirely separate and distinct in nature from that in charge 1. Wholly different considerations applied. There was no inconsistency.

475.  Ground 2 referred to a lack of a finding by the judge that Egan should have believed that Becky was a voluntary participant in the witness protection program. This ignores the judge’s finding at §674 of the Reasons, discussed above. If this ground is to be understood to mean that there was no finding that Becky’s participation was voluntary - presumably as opposed to involuntary - then such a finding is implicit in the judge’s finding that she was a participant in the program.

476.  Ground 3 appeared to me to be a differently phrased repetition and extension of what it was suggested should have been considered under Ground 2. The passages from the evidence upon which reliance is placed were before the judge: there is nothing to indicate that he was not fully aware of that evidence.

477.  Ground 11 contended that the judge reversed the onus of proof: this ground seems to me to be a re-presentation, differently expressed, of the criticism of the judge’s finding that Egan believed Becky to be in the witness protection program. I do not accept, for the reasons already set out, that that finding may properly be impeached.

478.  Ground 13 asserted that the judge erred in a fact and that that error led to the conviction being unsafe and unsatisfactory as a result of the judge rejecting Egan’s evidence. Assuming that there was an error of fact, although the judge’s finding does not seem to me to be entirely clear on this, it was not material and it cannot sensibly be suggested that that was the sole reason why he rejected Egan’s evidence. There is no merit in this ground.

479.  Ground 14 complained that the prosecutor did not fully put his case to Egan in the course of cross-examination, that this was “unfair” and resulted in a material irregularity in the trial. It is unrealistic to suggest that Egan was not wholly alive to the nature of the prosecution case, in detail, as it related to him and, indeed, to every one of his co-accused. Egan had been present throughout this long trial. It is recognised in Hong Kong that the decision in Browne v Dunn (1893) 6 R 67 is not an inflexible one (HKSAR v LO Chun Nam (2001) 4 HKCFAR 1).  The requirement is that where it is intended to suggest that a witness is not being truthful on a particular point, there should be such cross-examination as will show that this is the proposed course: the record shows that the prosecutor put to him such as was appropriate, necessary and fair in the context of this trial.

480.  Ground 15 comprised the catch-all ground that the conviction was unsafe and unsatisfactory. For the reasons which I trust have emerged from dealing with each of the grounds advanced, I do not accept that to be the case.

481.  In the event, I would dismiss the application.

Hon Ma CJHC :

482.  Accordingly, for the above reasons:

(1)  The applications for leave to appeal against conviction of the 1^st and 2^nd applicants are unanimously dismissed.

(2)  The application for leave to appeal against conviction of the 3^rd applicant is, by a majority, dismissed.

(3)  By a majority, the application for leave to appeal against conviction of the 4^th applicant is granted and, treating the hearing as the hearing of the appeal proper, the appeal is allowed.  His conviction is therefore quashed.

(4)  Also by a majority, in relation to the 4^th applicant, the appeal by way of Case Stated is dismissed.

483.  We will hear the outstanding applications for leave to appeal against sentence and the applications for review of the sentences passed on the 1^st and 3^rd applicants on dates to be fixed.