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CACC 178/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 178 OF 2012
(ON APPEAL FROM DCCC NO. 360 OF 2011)
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BETWEEN
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HKSAR |
Respondent |
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and |
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CHO WING NIN (曹永年) |
1st Applicant |
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CHAN KAI HUNG (陳啟鴻) |
2nd Applicant |
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AU KIM FUNG (歐劍鋒) |
3rd Applicant |
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| Before: Hon Yeung VP, Lunn JA and Poon J in Court |
| Date of Hearing: 11 February 2014 |
| Date of Judgment: 28 February 2014 |
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Hon Lunn JA (giving the judgment of the court):
1. The applicants sought leave to appeal their convictions after trial by District Court Judge Douglas Yau on 13 April 2012. The 1st and 2nd applicants were each convicted of having jointly committed offences of doing an act or acts tending and intended to pervert the course of public justice (Charge 1) and of misconduct in public office (Charge 2), whereas the 3rd applicant was acquitted of Charge 1, but convicted of Charge 2. The 1st and 2nd applicants were sentenced to 30 months’ imprisonment in respect of Charge 1 and 2 years’ imprisonment in respect of Charge 2, which sentences were ordered to be served concurrently. The 3rd applicant was sentenced to 18 months’ imprisonment in respect of Charge 2. The applications of the 1st, 2nd and 3rd applicants for leave to appeal against sentence were dismissed on their abandoning those applications on 28 June, 28 and 6 December 2012 respectively.
Background
2. The three applicants were all officers of the Independent Commission against Corruption (“ICAC”). At all times material to the charges the 1st applicant was a Chief Investigator, the 2nd applicant a Senior Investigator and the 3rd applicant an Assistant Investigator. In 2008, the 1st applicant was one of a team of ICAC officers involved in an investigation into fraudulent trading in warrants. In May 2008, a number of arrests were made by officers of ICAC, including Cheung Ching Ho (“Cheung”) who gave evidence in the trial of the three applicants, in which he was referred to as PW1. Cheung cooperated with the ICAC and agreed to give evidence against others, including Raymond Ng Chun To (“Raymond Ng”), who were charged with a range of offences including various conspiracies to defraud arising from fraudulent trading in warrants. Shortly before the trial of the others he was given an ‘Immunity’ from prosecution on condition that he give full and true evidence. However, when called as a witness at the trial on 7 December 2009 Cheung refused to testify. In consequence, he lost his ‘Immunity’ from prosecution. The trial proceeded in his absence. On 27 April 2010, Raymond Ng was convicted of four offences of conspiracy to defraud and one offence of doing an act tending and with intent to pervert the course of public justice. His wife, Cheng Yuen Yi, was convicted of 17 offences of dealing with property known or believed to represent the proceeds of an indictable offence. On 8 November 2013, this court, differently constituted, quashed those convictions and made an order that Raymond Ng be retried on the four charges of conspiracy to defraud only.[1] The court declined to order the retrial of Cheng Yuen Yi.
3. In due course, having been charged with offences arising out of the fraudulent trading in warrants, Cheung stood trial himself. At the outset, counsel representing him sought a ‘stay’ of the proceedings for an abuse of process on the basis that the three applicants had coached him in respect of the evidence that he was to give as a witness in the trial of the others for fraudulent trading in warrants. However, the judge refused the application for a stay of proceedings. Then, Cheung pleaded guilty to various charges, in consequence of which he was sentenced to a total of 25 months’ imprisonment.
4. The two charges laid against the three applicants arose from Cheung’s complaints of the conduct of the three applicants towards him as a prospective witness for the prosecution in the trial of the others for fraudulent trading in warrants, in particular that it had been suggested to him that he give false evidence, that he had been provided with information of what other witnesses at the trial had said in their out-of-court statements and coached as to how to give his testimony.
THE CHARGES
Charge 1: perverting the course of justice
5. The Particulars of Offence of Charge 1 averred that the three applicants between on or about 3 November and 4 December 2009, with intent to pervert the course of public justice, did an act or a series of acts which had a tendency to pervert the course of justice, namely:
“ (i) induced and persuaded Cheung Ching Ho, a witness in criminal proceedings, to give evidence which they knew or believed to be false; and
(ii) supplied the said Cheung Ching Ho with information including information from the statements of other witnesses with intent to enhance his credibility.”
Charge 2: misconduct in public office
6. By Charge 2, it was alleged that the three applicants, as holders of public office, namely officers of the ICAC, respectively in the course of or in relation to that public office, without reasonable excuse or justification, willfully misconducted themselves, namely by:
“ (i) inducing and persuading Cheung Ching Ho, a witness in criminal proceedings, to give evidence which they knew or believed to be false;
(ii) supplying the said Cheung Ching Ho with information from the statements of other witnesses;
(iii) ignoring advice given in the ICAC internal guidelines as to how witnesses should be dealt with; and
(iv) suggesting to the said Cheung Ching Ho that he could read his witness statements without the court’s leave during the course of his evidence.”
THE TRIAL
The prosecution case
7. Cheung testified in the prosecution case. It was his evidence that there had been a number of meetings with various combinations of the applicants in the second half of 2009. Those meetings occurred in various places including coffee shops and tea houses. In advance of the imminent commencement of the trial of others for fraudulent trading of warrants the pattern of meetings continued. Cheung began to make a note of what happened in the meeting after its conclusion. He did so, on the advice of his lawyer. With the permission of the court, he referred to those contemporaneous notes to refresh his memory during his testimony.
Notes of meetings
The meetings of 3, 13 and 30 November and 4 December 2009
8. On 3 and 13 November 2009 he met the 2nd and 3rd applicants at the Tai Hing Teahouse in Tseung Kwan O. On each occasion he made notes of the conversation at the end of the meeting. Suggestions were made to him in respect of the content of his testimony and how he should deal with questioning. On 30 November 2009, he met the 1st and 2nd applicants in a car parked at Hung Hom Ferry Pier. Again, he made notes of the contents of the conversation. On 4 December 2009, Cheung had a meeting, of which he made notes, with the 1st and 2nd applicants in a room at ICAC headquarters.
Audio recorded meetings
9. On 23 November 2009, Cheung met the 2nd and 3rd applicants at the Teahouse. He made an audio recording of the meeting using a concealed digital recording pen.
10. On 3 December 2009, the 2nd applicant met Cheung by arrangement and drove him in a motorcar from Tseung Kwan O to ICAC headquarters in North Point. There, he had a meeting with the 1st and 2nd applicants. Suggestions were made to him as to how he should deal with issues in his testimony. He was shown video discs of ICAC surveillance film. From time to time it was suggested to him whom was depicted in the film and what was happening. For his part, he was asked to confirm that was the case. Again, he made an audio recording of the conversation between them.
The defence case
11. The 1st applicant gave evidence, whereas neither the 2nd or 3rd applicants testified. He accepted that his voice was one of the voices to be heard on the recordings made by Cheung at their meetings on 23 November and 3 December 2009. Furthermore, he accepted that he had met Cheung on the other occasions, including 13 November and 4 December 2009, about which the latter testified. On none of these occasions had he suggested anything improper to Cheung, in particular as to the testimony he should give. His only purpose in attending any of the meetings was to ensure that Cheung give full and true evidence at the forthcoming trial.
12. The 1st applicant accepted that he had not made notes or a witness statement about the various meetings that he had had with Cheung. Any failure on his part to follow the internal ICAC guidelines about the manner in which ICAC officers were to deal with a prosecution witness was inadvertent. He had not deliberately flouted those guidelines.
REASONS FOR VERDICT
13. At an early stage of his Reasons for Verdict the judge adverted to the crucial importance to the prosecution case of the evidence of Cheung:[2]
“ If the prosecution cannot prove beyond reasonable doubt that PW1 is telling the truth about what took place in the meetings with the defendants and how the defendants had taught him to give evidence or lie, then there can be no conviction on either charge.”
The credibility and reliability of the testimony of Cheung
14. Of relevance to his assessment of the credibility and reliability of Cheung, the judge noted[3] that he was then serving a sentence of 25 months’ imprisonment, having pleaded guilty to charges of conspiracy to defraud in relation to be fraudulent trading of warrants. Cheung had been sentenced to that term of imprisonment having applied unsuccessfully to stay the proceedings brought against him, inter alia, on the basis of the conduct of the applicants in the instant application for leave to appeal against conviction. Of Cheung, the judge determined:[4]
“ I find that he is not entirely a witness of truth. I am aware I have to take caution when relying on his evidence.”
Good character: the applicants
15. The judge noted that, in contrast the three applicants were of “clear record”. Only the 1st applicant testified the trial. No doubt because of those circumstances the judge stated that he had taken into account their character:[5]
“ …when deciding on D1’s credibility as a witness and the lower propensity of all 3 of the defendants committing the offences they face.”
The salient features of the evidence of Cheung
16. Although the evidence of Cheung had been given in a period of no less than 18 court days, the judge sought to summarise the salient features of evidence in 13 pages of his Reasons for Verdict.
17. The judge noted that Cheung testified[6] that after his arrest, on the morning of 28 May 2008, for his part in the fraudulent trading of warrants, he had responded affirmatively to an offer made by two ICAC officers named Lee and Lai respectively. It was agreed that, so long as Cheung testified against Raymond Ng and the four main warrant issuers, for its part the ICAC would not proceed against Cheung or confiscate his assets and harass his family. Further, his accomplices in the warrant trading might be ‘rescued’.
18. Cheung testified[7] that he had first met the 1st and 2nd applicants only after June 2008, whereas he first met the 3rd applicant later, in September or October 2008.
19. The judge noted[8] Cheung’s testimony that in November and December 2009 he had met the three applicants in different combinations, usually of two officers, on six occasions at which meetings the conversation between the parties was material to the offences with which the applicants were charged. On several of the occasions they met at the Tai Hang Teahouse in Tseung Kwan O, whereas on other occasions they met in a car and sometimes at ICAC Headquarters in North Point. On two of the occasions, 23 November and 3 December 2009, Cheung had made an audio recording of the events, which recordings were exhibited, together with transcriptions of the conversations, and played at the hearing. On the other occasions 3, 13 and 30 November and 4 December 2009, he had made contemporaneous notes of the conversations, to which he referred when giving evidence.
20. No issue was taken by the applicants that the meetings had taken place as described by Cheung. In respect of the conversations that were not recorded, at issue was what it was that had been said at those meetings.
3 November 2009: 2nd and 3rd applicants (Teahouse)
3 November 2009 meeting: the 2nd and 3rd applicants
21. Of the meeting of 3 November, the judge noted[9] that it was held at the Tai Hang Teahouse and attended by the 2nd and 3rd applicants. Cheung was told that, when he testified at trial, he was to deny that the facts of the case had been discussed at such meetings.[10] The 2nd applicant told him to testify that the bank accounts of his parents and his brother have been used to receive monies because he did not wish others to know that the monies were under his control, but the monies were to be handed over to Raymond Ng. That was not true and he did not agree to testify in that way. Although in 2008, he had been asked by the 2nd applicant to enquire of his accomplices in the fraudulent warrant trading (‘brothers’), whether or not they were willing to cooperate with ICAC as ‘immune’ witnesses, the 2nd applicant told him at the meeting that he was not to mention anything of that request in evidence. Further, the 2nd applicant told him that, although once the trial had started he would not be able to meet the applicants, “special arrangements” would be made if something was ‘missing’ in his testimony.
13 November 2009: 2nd and 3rd applicants
22. The judge noted[11] that the meeting of 13 November 2009 began at the Tai Hang Teahouse, but that the participants, Cheung, the 2nd and 3rd applicants, then went by car to the District Court to familiarise Cheung with the surroundings. In the car journey, the 2nd applicant told him that there were omissions in his own witness statements, as compared with the statements made by his accomplice warrant traders, as to how much they were paid and the provenance of those monies. The latter said that in their statements they asserted that Cheung had under declared profits and over declared losses.
23. November 2009: 2nd and 3rd applicants
23. The meeting at the Tai Hang Teahouse between Cheung and the 2nd and 3rd applicants of 23 November 2009 was audio recorded by Cheung.[12]
30 November 2009: 1st and 2nd applicants
24. As the judge noted[13], the meeting with Cheung on 30 November 2009 was attended by the 1st and 2nd applicants in a car, which was parked at Hung Hom Pier. The 1st applicant raised the issue of Cheung under declaring profits and over declaring losses to Raymond Ng and suggested that he admit misappropriating the money. Of the discrepancy between the monies he had obtained and his apparent assets, Cheung was advised by the 1st applicant to testify that he had placed bets in cash at Betting Centres, observing that if the discrepancy was explained there was nothing for ICAC to confiscate. Although Cheung’s initial statement that there had been an agreement at the outset with ICAC offices and Lai and Lee that nothing was to be confiscated produced a look of disapproval on the face of the 1st applicant, his statement that in evidence he would deny the existence of that agreement produced a look of approval on the face of the 1st applicant. Similarly, he assured the 1st applicant that he would testify that no discussions have taken place with ICAC officers about the contents of witness statements. The 1st applicant told Cheung that, although once the trial had begun he could not look at his own witness statements, nevertheless he could do so secretly at home.
3 December 2009: 2nd applicant (car); 1st and 2nd applicants (ICAC HQ)
25. The judge noted[14] that on 3 December 2009 the 2nd applicant met Cheung in Tseung Kwan O and drove him to ICAC headquarters in North Point, where the 1st applicant joined the subsequent meeting. Cheung recorded their conversations, both in the car and at ICAC headquarters. Cheung was shown a surveillance video and, by reference to it, assisted in identifying persons, including Anna, the wife of Raymond Ng.
4 December 2009: 1st and 2nd applicants (ICAC HQ)
26. As the judge noted,[15] at the meeting between the 1st and 2nd applicants and Cheung at ICAC headquarters on the 4 December 2009, in face of misgivings expressed by Cheung in respect of the suggestion that he testify of having lost money in gambling on horses, as an explanation for his apparent lack of assets notwithstanding the monies he had received, the 1st applicant remained adamant that the explanation could be advanced. The 1st applicant suggested that Cheung could testify that he could not remember on which horses he had placed bets. The 1st applicant told Cheung that he should not disclose that he had viewed a video provided by ICAC, in which Anna, the wife of Raymond Ng, was depicted. The 2nd applicant told Cheung that, after he had given evidence on the first day, if he wished he could read his statement before resuming evidence the following day. The 1st applicant asserted that there was no agreement between Cheung and ICAC officers Lai and Lee or between him and the 1st and 2nd applicants. Finally, Cheung said that whilst the 2nd applicant was driving him back to Tseung Kwan O he stopped the car and purchased two phone cards one of which he gave to Cheung, telling him that they could keep in contact after the latter had begun giving evidence.
Determination of credibility: Cheung
27. As noted earlier, the judge stated at the outset that he found Cheung to be[16], “not entirely a witness of truth”. He went on to determine that Cheung had been motivated from the outset “to get out of the whole matter of fraudulent warrant trading free”.[17] First, he secured himself an ‘immunity’ from prosecution. Secondly, he tape-recorded the conversations with the applicants. Then, he applied for a stay of his own trial. When that failed, he pleaded guilty and was now serving a sentence of imprisonment. The judge said that the fact that his primary objective was no longer achievable probably explained his reluctance to continue to give evidence against the applicants.
28. The judge found[18] Cheung to have lied in his testimony that no one read to him the Summary of Facts, on which his plea of guilty was accepted at his own trial, and that his own lawyer explained it to him only briefly. Further, he found him to be[19] “extremely evasive” in his testimony in respect of how much money he had taken without informing the “mastermind of the fraudulent warrant trading scheme”, namely Raymond Ng.
29. Of the manner in which Cheung conducted himself in the tape recorded conversations with the applicants, the judge found[20] that Cheung had projected an untrue image of being “quite helpless, forgetful, unsure of himself.” The judge determined that not to be the true picture of Cheung, whom he noted to be “a leader of a gang of fraudsters, operating a scheme with profits of millions of dollars, involving three different jurisdictions”.[21]
30. In conducting himself in that manner and in the way in which he presented in court, the judge found that he was doing so, to “deceive in order to get what he wants, which is to get out of trouble.”[22] Of Cheung’s participation in the audio recorded meetings, namely 23 November and 3 December 2009, the judge said that Cheung “was clearly manipulative”, in particular in obviously seeking to cajole the applicants to remind him of matters about which he ought to have known himself. He noted that Cheung had repeatedly referred to matters about which he asserted that he had been ‘taught’ by one or other of the applicants. His objective was to get the applicants to coach him.[23]
31. Of the unrecorded meetings that Cheung had with one or other of the applicants, the judge determined that Cheung’s testimony was true, save where he specifically found otherwise. In so determining, he said that he found assertions made by Cheung in the audio recorded conversations about what had been said in the recorded conversations as impliedly confirming his testimony.[24]
Findings
32. In his Reasons for Verdict the judge addressed each of the particulars identified by the prosecution as supporting particulars (i) and (ii) of the Particulars of Offence of Charge 1 and the four particulars provided in respect of Charge 2.
33. In summary, the judge made the following findings in respect of particular (i) of Charge 1:
(i) gambling losses as an explanation for loss of assets
That when the 1st and 2nd applicants had discussions with Cheung about how he could answer questions concerning his assets neither of them:[25]
“ …believed that PW1 had lost all his assets through gambling on horses and in casinos. I find that D1 and D2 did together try to get PW1 to give this false answer when being questioned at trial.”
(ii) denial of a secret agreement between ICAC and Cheung for the grant of an immunity
That the 1st and 2nd applicants knew that there was such an agreement and, having regard to the audio recording of the meeting of 3 December 2009:
“ D2 therefore knew that the answer that D1, and now D2, was persuading PW1 to give was false.”[26]
(iii) arrangements for continued out-of-court contact with Cheung during the time of his testimony
Although the judge accepted the evidence of Cheung that the 2nd applicant had purchased mobile telephone Sim cards for use in out-of-court communication with Cheung during the time in which he was giving evidence, the judge found that, in the absence of evidence as to the proposed content of the communication, the prosecution failed to prove this particular.
(iv) the 2nd applicant’s suggestions to Cheung to explain how his profits from fraudulent warrant trading were dissipated
The judge found that in suggesting to Cheung that the monies deposited in the bank accounts of his mother and brother were in fact his wages and that the cash he had received from various ‘heads’, persons who opened accounts for fraudulent warrant trading, were also his wages the 2nd applicant knew that to be false. The same was true of the suggestions that the monies were lost gambling in Macau or in trading in securities. In the result, the judge determined that the 2nd applicant was intending to pervert the course of justice by persuading Cheung “to give false evidence”.[27]
(v) the suggestion to Cheung that he deny making contact with ‘heads’ to invite them to cooperate with ICAC
The judge accepted that Cheung was telling the truth when he said that at a meeting on 3 November 2009 the 2nd applicant had told him to deny in testimony that he had contacted any of the ‘heads’ seeking to persuade them to cooperate with ICAC. Further, that 2nd applicant knew that to be untrue. In the result, the judge found that conduct had a tendency to pervert the course of justice and that was the 2nd applicant’s intention.[28]
(vi) the suggestion to Cheung that he admit that he had stolen some of the proceeds of the fraudulent warrant trading
The judge determined that Cheung lied in his testimony when he denied having stolen money in that way.[29] Accordingly, he found that the prosecution had failed to prove that particular.
34. In summary, the judge made the following findings in respect of the measures addressed in particular (ii) of Charge 1:
The provision of information to Cheung on what respective prosecution witnesses said on various matters:
(i) That the 2nd applicant had supplied information as to the monies paid to those who traded in the fraudulent warrant scheme intending that it be used to enhance the credibility of Cheung. That tended to pervert the course of public justice, which is what the 2nd applicant intended.[30]
(ii) That the 2nd applicant had told Cheung that another witness said that Cheung had handed money over to Raymond Ng in the Sands Casino in Macau and that he had done so with the intention of enhancing the credibility of Cheung as a witness.[31] Similarly, the judge determined that in informing Cheung that Wong Ho Yin, a prosecution witness, had stated that was the case, the 1st applicant provided the information for the same purpose.[32] Next, the judge determined that the 1st applicant had told Cheung that Leung Yiu Kei said that Cheung had embezzled monies from the fraudulent warrant scheme in order that Cheung would be better prepared for cross-examination, intending thereby to enhance his credibility.[33] Finally, the judge determined that the acts of the 1st and 2nd applicants had the tendency to pervert the course of justice, which was their intention.[34]
(iii) Of the undisputed evidence that on 3 December 2009 Cheung had been shown the ICAC surveillance tapes by the 1st and 2nd applicants, the judge found that was done to enhance his credibility.[35] The judge went on to determine that the failure of the 1st applicant to make a record of the fact that the tapes had been shown to Cheung evidenced an intention of the 1st applicant to pervert the course of justice.[36]
(iv) the role of the 3rd applicant
The judge said that he was not satisfied that the 3rd applicant was “part of the joint enterprise with the 1st and 2nd applicants to commit the act’s described in particulars (i) and (ii) of Charge 1.”[37]
Charge 2
35. Having averted to elements of the offence of misconduct in public office identified in the judgment of Sir Anthony Mason in the Court of Final Appeal in Sin Kam Wah & Another v HKSAR, the judge addressed those elements in turn.[38] He determined that ICAC is a public body and that the applicants, as its employees, were public officers at the material time.[39] Then, he found that in their dealings with Cheung they had acted as investigating officers of the ICAC and had done so wilfully, doing what they did in order to enhance the credibility of Cheung. They had no reasonable excuse or justification for their conduct, which he found to be serious misconduct which, ultimately, affected the administration of justice.[40]
36. The judge determined the 1st applicant to be “not an honest witness” in his explanation in testimony for why he had failed to make a record in his notebook or in the official diary of the fact of his meetings with Cheung on 30 November, 3 and 4 December 2009.[41] Of the 1st applicant’s failure to make a record of the fact that Cheung had been shown ICAC surveillance tapes at the meeting on 3 December 2009, the judge found that to be a “deliberate failure” that “shows the intention of D1 was to pervert.”[42]
37. Having noted the evidence of Mr Kwong Lai Fan, a Senior Investigator of the Operations Department of the ICAC, to the effect that guidance in respect of dealings by ICAC officers with witnesses to be called by the prosecution in prospective trials had been made available online to those officers prior to any dealings with Cheung, the judge determined that it was “..impossible that the defendants were not aware of the guidelines”.[43] Those guidelines articulate in terms the prohibition in respect of coaching of such witnesses, showing to such a witness the witness statements of another witness or allowing such a witness, other than in court with the permission of the judge, to refer to his own earlier witness statements whilst the witness was giving testimony.[44]
38. The judge rejected the 1st applicant’s evidence that he might have inadvertently committed breaches of those guidelines and his testimony that all he had done was to try to ensure that Cheung gave ‘true and full’ evidence in court.[45] Rather, he found that the 1st applicant had wilfully ignored the ICAC guidelines and had no reasonable excuse or justification for doing so.[46] The judge made similar findings in respect of the 2nd and 3rd applicants.[47]
39. In the result, the judge determined that the three applicants were guilty of Charge 2. In respect of the 1st and 2nd applicants, he reached that conclusion having been satisfied that the prosecution had proved all the particulars. However, he was not satisfied that the 3rd applicant was a party to the suggestion made to Cheung that he could read his witness statement outside court whilst he was testifying as a witness.[48] Nevertheless, he found that at the meeting of 23 November 2009, together with the 2nd applicant, the 3rd applicant had coached Cheung as a witness, wilfully ignoring the ICAC internal guidelines.[49]
GROUNDS OF APPEAL AGAINST CONVICTION
1st applicant
The judge’s reliance on the evidence of Cheung
40. In written submissions Mr Duncan SC, who did not appear at the trial, contended on behalf of the 1st applicant that the judge had erred in relying on part of the evidence of Cheung, a witness who was serving a sentence of imprisonment for offences of dishonesty. It was suggested that the judge’s own findings[50] led to the conclusion that Cheung was devoid of credibility: he manipulated adjournments of the court for his own interests; he was evasive about the issue of concealing profit from Raymond Ng; he was a liar in respect of the issue of his knowledge of the Summary of Facts, denying falsely that it had been read to him at his own trial; and he was manipulative and deceitful, presenting himself as “helpless, forgetful and unsure of himself”, whereas his purpose was to trap the applicants into ‘coaching’ him as a witness.
41. It was submitted, in effect, that the judge was wrong to rely on part of the evidence of Cheung in respect of the meetings of 30 November and 4 December 2009, which meetings were not audio recorded.
42. Of the fact that Cheung had relied on contemporaneous notes, made after meetings with one or other of the applicants, to refresh his memory while giving testimony it was asserted that the judge had failed to consider those notes as self-serving and of no weight.
43. Then, it was contended that the judge had erred in determining[51] that part of the audio recording of the meeting of 3 December 2009, between the 1st and 2nd applicants and Cheung, “can be used to corroborate” the evidence of Cheung as to part of the conversation between the three of them on 30 November 2009. That evidence lacked the requisite quality of “independence”. The evidence in question was Cheung’s testimony that the 1st and 2nd applicants sought to persuade him to explain away his lack of assets on the basis that he had lost money in gambling on horses and in casinos, which they knew to be false.
44. Next, it was submitted that the judge was in error to determine[52] that the explanations and interpretations given by the 1st applicant in his testimony in respect of the contents of the audio recordings were “not relevant to my decision”, it being up to the court to determine what the conversation actually meant. The court was invited to note that, by contrast, Cheung had given in testimony many interpretations of what had been said in the meetings.
The judge’s rejection of the evidence of the 1st applicant
45. Finally, it was submitted on behalf of the 1st applicant that the judge had erred in rejecting the evidence of the 1st applicant, who was a person of good character. Further, although the judge had recited some of the 1st applicant’s evidence, it was asserted that he “failed to provide any substantive analysis for his reasons in rejecting it”. In particular, it was contended that he had failed to ‘evaluate’ the 1st applicant’s evidence.
Ground 3
46. By ground 3, it was submitted that there were numerous material irregularities during the trial in respect of the manner in which Cheung was treated: on repeated occasions proceedings were adjourned so that Cheung could determine whether he would answer simple questions or continue to give evidence at all; during adjournments Cheung was permitted to consult with his own lawyers, who had been present during his testimony; on the occasion of some adjournments Cheung was remanded in custody, first at the custodial ward of Queen Elizabeth Hospital and then at Siu Lam Psychiatric Centre, so that Cheung was left in no doubt about the unpleasantness that lay ahead for him if he declined to testify.
2nd applicant
47. Mr Philip Ross, who did not appear at the trial, submitted on behalf of the 2nd applicant that, whilst the judge had stated[53] in respect of Cheung that he was aware of the need “to take caution when relying on his evidence”, in all the circumstances, the judge had erred in not directing himself that it was “dangerous” to act upon the evidence of Cheung “unless it was corroborated”.
Ground 2
48. By ground 2, it was submitted that in convicting the 2nd applicant on Charge 2 the judge had erred in having regard to the ICAC guidelines and internal regulatory provisions as to dealings by officers with respect to witnesses at forthcoming trials and determining[54] that 2nd applicant was in wilful breach of those guidelines, in the absence of any evidence that those guidelines and provisions were in force at the time material to Charge 2, namely 3 November to 4 December 2009.
Ground 3
49. By ground 3, it was submitted that the 2nd applicant’s conviction in respect of Charge 2 was bad by operation of the doctrine of autrefois acquit, given that the 2nd applicant had been convicted of Charge 1, and the conviction in respect of Charge 2 was based on the same facts, albeit in a more aggravated form, given the added ingredient of the applicant being a public officer.
3rd applicant
50. Mr John Dunn, who appeared for the 3rd applicant at trial, submitted that in convicting the 3rd applicant the judge had failed to give sufficient weight to the evidence that he was a junior officer in a disciplined organisation attending meetings with Cheung under the instructions of a superior officer, under whose supervision and direction he was during the meetings with Cheung.
51. Next, it was submitted that in finding that the 3rd applicant, together with the 2nd applicant, had coached Cheung at the meeting of 23 November 2009 and that he was in breach of the internal guidelines of the ICAC, the judge had erred in finding[55] the conduct was serious enough misconduct to amount to the criminal offence of misconduct in a public office. He invited the court to note that was the only particular in respect of Charge 2 that the judge found proved in respect of the 3rd applicant.
A CONSIDERATION OF THE SUBMISSIONS
The judge’s reliance on part of the evidence of Cheung
52. There is no doubt that the judge was acutely aware of the litany of Cheung’s imperfections that were relevant to a determination of his credibility and reliability. As noted earlier, the judge listed them at length.[56] He acknowledged the need to “take caution when relying on his evidence”.[57]
53. Clearly, the judge approached his analysis of the evidence of Cheung on the basis that he was a witness who had a purpose of his own to serve:[58]
“ There is no doubt that from the very beginning, PW1 had but one thing on his mind, which is to get out of the whole matter of the fraudulent warrant trading free. He first of all managed to get himself immunity, then through the taping of the ICAC officers, he tried to get the proceedings in his own trial stayed. By the time he gave evidence in the present trial, he had already been sentenced to jail. What he had set out to achieve was no long achievable. That was probably why he behaved as he did in the present trial when he repeatedly said he did not want to give further evidence against the defendants.”
54. As is readily apparent, the judge examined the evidence of Cheung very thoroughly and with great care, very obviously approaching it in the manner in which he had stipulated, namely with caution. There was no need, as Mr Philip Ross submitted, for the judge to have treated Cheung as a “dangerous witness” and to have warned himself “it would be dangerous to convict on the uncorroborated testimony”. Even in respect of accomplices, and Mr Ross accepted readily that Cheung was not an accomplice of these applicants, the rule whereby the judge was obliged to warn of the dangers of convicting on the uncorroborated testimony of an accomplice has been abrogated by section 60 of the Criminal Procedure Ordinance, Cap. 221.
55. In determining that he accepted Cheung’s evidence in respect of conversations with the applicants of which he had not made audio recordings, namely those other than 23 November and 3 December 2009, the judge said that in doing so he noted that:[59]
“ ..those unrecorded meetings are in keeping with what can be heard in the 2 tape recorded meeting. Furthermore, the contents of the recorded meetings from time to time refer back to previous meetings and D1 and D2 had from time to time impliedly confirmed what PW1 said was true.” [Italics added.]
Coaching of Cheung to deny that there was a secret agreement between him and ICAC for an ‘immunity’ from prosecution
56. In that context, the judge adverted to the dialogue between the 2nd applicant and Cheung at the tape recorded meeting of 3 December 2009, in which Cheung asserted that the 1st applicant had told him to deny that there was a secret agreement between him and ICAC.[60] The judge noted that it was the evidence of Cheung that at the meeting of 30 November 2009 the 1st applicant had told him that he would be questioned about the issue of an agreement with ICAC for his immunity. Cheung testified that he said that from the outset he had been told by two ICAC officers, he named as Lee and Lai, that if he continued to co-operate he would not be prosecuted. However, when he said that he would answer such a question in the affirmative the 1st applicant grimaced, whereas when he said that he would respond in the negative the 1st applicant displayed a look of satisfaction.
57. In determining that Cheung was telling the truth about what had occurred at the meeting on 30 November 2009, the judge said that he did so “on the basis that it is supported by the later conversation between PW1 and D2 in the 3rd December meeting which was tape-recorded.”[61]
Cheung was told that he could continue to read his statements out of court during the time that he was testifying
58. On a similar basis, the judge accepted the evidence of Cheung that at the meeting of 30 November 2009 the 1st applicant had told him that “he could accidentally read his statement at home after PW1 had started giving his evidence.”[62] The judge made that determination having observed that in the tape recorded meetings of 23 November and 3 December 2009 the 2nd applicant said that Cheung could read his statements even after his evidence had begun.[63]
The judge’s rejection of the evidence of the 1st applicant
59. In his oral submissions, Mr Duncan confined his arguments to the issue of whether or not the judge had discharged his duty adequately of evaluating the evidence of the 1st applicant. He reminded the court of the observations of Bokhary PJ, as he was then, in his judgment in HKSAR v Egan in respect of the proper approach to judicial fact-finding and determinations:[64]
“ A trial court: …… has due regard to such inherent probabilities as may appear; makes proper use of its advantage of receiving the testimony of witnesses at first-hand; evaluates the whole of the evidence; makes its findings of fact; and then states them.”
60. Also, reliance was placed on the statement in the judgment of Litton NPJ of the need for a tribunal to evaluate disputed evidence: “ ‘Evaluate’ means just that: To measure, to weigh. Not every piece of evidence has equal weight.”[65]
61. In support of the submissions that the judge had failed to consider and evaluate the 1st applicant’s evidence adequately, Mr Duncan asserted that the judge had erred in determining that the 1st applicant’s testimony of his explanation and interpretation of the contents of the tape recording was not relevant. That, he submitted was a fundamental error. Also, he asserted that the judge had conducted no analysis, let alone an evaluation, of the 1st applicant’s evidence in respect of the unrecorded meetings of 30 November and 4 December 2009, and complained that nevertheless he had made findings in respect of those meetings adverse to the 1st applicant.
The 1st applicant’s interpretation of the tape recording
62. The judge’s finding that “..what D1 interpret the tape recording to be saying is not relevant to my decision”, is to be viewed in the context in which he made the determination, namely:[66]
“ D1 gave explanation and applied his own interpretation on the contents of the tape recording. I find that what D1 interpret the tape recording to be saying is not relevant to my decision. It is the function of the tribunal of fact to listen and then make a finding as to what the contents of their discussion actually meant.” [Italics added.]
63. Although the judge did not identify specifically, or even generally, which interpretations of the contents of the tape recording he had in mind, we are satisfied that it is clear that he distinguished between, on the one hand, the 1st applicant’s explanations and, on the other hand, his interpretation of what was meant in the dialogue recorded on the tape recordings.
64. An illustration of how the judge had regard to the 1st applicant’s explanations in his testimony of the audio recordings of 3 December 2009 is to be found in respect of the passages concerning information provided by the 1st applicant to Cheung on 3 December 2009 of what the prosecution witnesses Wong Ho Yin, Leung Yiu Kei and Mak Kai Tong had said in their statements.[67] The judge noted that the 1st applicant’s explanation was that:[68]
“ D1 denied that he asked the questions with intent to enhance PW1’s credibility. D1 considered that unnecessary because PW1 was well aware of the whole operation of his syndicate. What D1 was doing in that part of the conversation was to confirm whether PW1 was willing to give full and true evidence.”
65. Dealing with the tenor of the 1st applicant’s explanations of what was said in the audio recording of the meeting 3 December 2009, the judge noted:[69]
“ ….whatever he had said in the meeting, he did so to try his best to ensure that D1 will give full and true evidence at the pending 1st warrant trial. There was never any intention on his part to induce or persuade PW1 to give any false evidence. All that he had done at the meeting was to go over what PW1 had already known, a memory refreshing exercise.”
66. As the judge noted, the 1st applicant denied that he had ever had any conversation with Cheung in which he suggested that the latter could read his witness statements without the court’s leave during the course of his evidence.[70]
67. It is correct, as Mr Duncan submitted, that in their evidence-in-chief both Cheung and the 1st applicant had been asked, without objection, to testify as to what was “meant” or “understood” by many of the pieces of dialogue in the audio recorded meeting of 3 December 2009. Mr Duncan informed the court that those questions had been posed of the 1st applicant in his evidence-in-chief in no less than 190 of the counters of the transcript of the meeting of 3 December 2009.
68. As Mr Tam pointed out, on numerous occasions the 1st applicant testified that at the time of their dialogue he had concluded of particular statements Cheung that he was “playing dumb”. Mr Tam suggested that assertion of the 1st applicant was an interpretation of the content of the tape recording by the 1st applicant. He said that did not assist the court, and might have been material within the ambit of that which the judge had determined was not relevant. On the other hand, he suggested that the 1st applicant’s evidence that some of his responses to Cheung on the audiotape were intended to be sarcastic was an explanation to which the judge would have had regard. However, it is clear that on some of those occasions, on the 1st applicant’s testimony, the former explained the latter: a remark or statement of the 1st applicant, which he described as sarcastic, was forthcoming because he had interpreted the statement of Cheung as “playing dumb”. In the context of having been shown a surveillance film during the meeting of 3 December 2009 which apparently depicted Cheung handing a paper bag or packet to a woman, whom the 1st applicant asserted was Anna, the following dialogue occurred:[71]
(B = the 1st applicant; C = Cheung)
“ 860. B : Yes…yes. Well, you passed the bag of stuff to her, what was inside the bag?
861. C : (I) have to answer this as well?
862. B : Of course! So, what was inside the bag? You would not buy Anna a bouquet! Right?
863. C : I under(stand)…
864. B : So, what was inside the bag?
865. C : That was a wad of banknotes…
866. B : Yes! Just as those! Got it right again! There is another mark!”
69. In the examination-in-chief of the 1st applicant, the following interchange occurred between counsel and the 1st applicant:[72]
“ Q. Now, 862, what would you like to say, if anything, about that and your manner?
A. I said it to Mr Cheung in a sarcastic way meaning that “Don’t play dumb, weren’t you going to send a bunch of flowers to Anna?”
Q. Did you think he was playing dumb?
A. Correct.
Q. 866 again, why did you reply like that?
A. Because in 864 I asked him what was inside the bag. In counter 865 he said “The money was inside”, that is so in counter 866 I said to him in a sarcastic way again, “Oh, you got the marks again”.”
70. It seems that the approach of the judge was to regard the evidence of the 1st applicant’s interpretation of a particular statement of Cheung reflected the fact that he was, for example, “playing dumb” as irrelevant to a determination of the truth of that assertion, but nevertheless relevant to the 1st applicant’s explanation of his own response. That approach of the judge was clearly apposite to similar assertions of the 1st applicant in respect of statements of Cheung on the audiotape of 3 December 2009, for example that Cheung was “bending the truth”[73], telling “lies”[74], “playing some game”[75] and “playing tricks”[76]. We are satisfied that the judge was entitled to approach the evidence of the 1st applicant in the way. Although he made no specific reference to his approach to the evidence of Cheung in that respect, there is nothing in the Reasons for Verdict to suggest that he approached his evidence in a different way from that in which he approached that of the 1st applicant.
30 November and 4 December 2009 meetings
4 December 2009 meeting
71. Mr Duncan is correct that in his narrative recitation of the 1st applicant’s evidence in his Reasons for Verdict the judge did not seek to summarise his evidence in respect of the meeting of 30 November 2009. However, he is incorrect in respect of the meeting of the 4 December 2009. The judge dealt with the latter meeting at some length, noting:[77]
“ PW1 did take the initiative and asked whether they should discuss about the evidence he was going to give. D1 said they should not and just told PW1 to go back and take a good rest.
More specifically, it is D1’s evidence that at the 4th December 2009 meeting, there was no discussion about gambling on horses as a means of PW1 losing his assets and that no matter how much was lost no one would know about it, nor suggestion to PW1 that he could answer “cannot remember” when asked how much money he had lost; nor did D1 say to him that if asked about the name of the horses he could say he did not remember, nor did D1 tell him that the defence will attack him and that he should not be nervous. D1 made a flat denial of all the allegations that PW1 had made against him in PW1’s evidence.”
30 November 2009 meeting
72. As is apparent from the transcript of the evidence of the 1st applicant in respect of the 30 November 2009 meeting, in the temporary absence of the 2nd applicant from the car in which the meeting was held whilst it was parked in Hung Hom, the 1st applicant said that Cheung had initiated a conversation in which he enquired whether or not he would be able to keep the monies that he had obtained in the fraudulent warrant scheme. In face of a negative response from the 1st applicant, Cheung embarked on an account of how it was that he had in fact lost that money. First, it was lost in gambling in Macau. Then, when asked where and how that had occurred, Cheung said that he had gambled the money away on horses in Hong Kong and had done so in cash. He gambled with Wong Ho Yin and ‘Sap Chai’. Also, he spent money on clothes and had given some money to his parents. In response to having been admonished not to tell lies, Cheung complained that he was under pressure, that is why he had forgotten a lot of things. The 1st applicant said that he interpreted that to be a negotiating stance. In response to being reminded that the immunity promised to Cheung was conditional on giving full and true evidence and that nothing else had been promised, Cheung smiled. The 1st applicant interpreted that to Cheung “pretending to be dumb”.[78]
The judge’s evaluation of the 1st applicant’s evidence
73. There is no merit in the submission that the judge failed to provide a substantive analysis and evaluation of his rejection of the evidence of the 1st applicant. He did so carefully and at some length. As noted earlier, the judge was alive to the nub of the 1st applicant’s testimony, namely that there was never any intention on his part to induce or persuade PW1 to give any false evidence; all that he had done at the meetings was to go over what PW1 had already known, a memory refreshing exercise, to establish whether or not he was going to give ‘full and true evidence’ at the trial.
The supply to the 1st applicant of information as to what Leung Yiu Kei had said in his statements
74. Of the undisputed fact that the tape recording of the meeting of 3 December 2009 revealed that the 1st applicant told Cheung what the prosecution witness Leung Yiu Kei had said in his out-of-court statement, namely that the 1st applicant had embezzled monies from the fraudulent warrant scheme which had been distributed amongst those participating in the scheme, and that a short discussion ensued between the two of them, the judge noted:[79]
“ D1 asked PW1 if that was the case. PW1 did not answer directly, except that he had not mentioned it in his statements. D1 then told PW1 that although PW1 had not mentioned it, PW1’s warrant trading brothers had mentioned it and asked PW1 again if that really was what happened. After repeated asking, PW1 finally confirmed that it was the truth.
Once PW1 had admitted that to D1, D1 then proceeded to supply the reason why PW1 did that to PW1, saying that because the risk was big and that PW1 felt he had to compensate the brothers. Again D1 asked PW1 if that was the truth. PW1 nodded his head and confirmed it was the truth.”
75. Clearly, the dialogue to which the judge was referring was the following:[80]
(B = the 1st applicant; C = Cheung)
“ 1903. B : ……..Ah! Well, for example, ‘LEUNG Yiu-kei’ (transliteration) said, sometimes, you had misappropriate (the money) previously. (You) reported deliberately a lesser amount earned and reported a larger amount lost. Well, (you) shared the remaining bonus with the brothers, is it right?
1904. C : I didn’t mention that!
1905. B : You didn’t mention, but your brothers did, is it right? Well, is this the fact?
1906. C : You said it last time, in the car.
1907. B : Well, is it the fact?
1908. C : Well, you ask me to answer!
1909. B : No. I ask you to answer. Is it a fact?
1910. C : Yes.
1911. B : Yes. Well, why did you do that? Because the risk was high. You wanted to make compensation to the brothers, well, is it right? Is it a fact? You nodded your head means yes, is it such meaning?
1912. C : Yes!”
76. The judge’s analysis and evaluation of the dialogue accord fully with the transcript. Then, the judge went on to make his findings of fact:[81]
“ I find that the reason why D1 mentioned what Leung Yiu Kei said to PW1 was so that PW1 would be prepared for cross-examination, so that PW1’s credibility would be enhanced, having been given ample time to think up the answer…………………….
I find that such an act had the tendency to pervert the course of justice. I find that it was the intention of both D1 and D2 to so pervert.”
Clearly, and necessarily those reasoned findings were a rejection of the 1st applicant’s testimony.
The 1st applicant’s failure to record the fact of his meetings with Cheung of 30 November, 3 and 4 December 2009 in the official diary or in his notebook
77. Another of the events established by the tape recording of the meeting of 3 December 2009 was the fact that he was shown an ICAC surveillance film in which the 1st applicant named people conducting themselves in a way relevant to the case.[82] The judge found that the purpose of the exercise was so that Cheung would be “able to make the identification in court” and that would “enhance PW1’s credibility”.[83] The judge’s concern was that “no one would have known” of those events had not Cheung recorded the meeting because there was no official record kept of the fact of the meetings, let alone what ensued at the meetings.
78. The judge noted the explanation of the 1st applicant for the absence of such records:[84]
“ D1 tried to explain why the meeting was not recorded in his official diary (exhibit P-22). D1 first said that he was on vacation leave on that day and so did not make the entry. Upon returning to work on 2nd December, D1 had forgotten to make the entry in either the official diary or his notebook.”
Again, the judge’s summary of the 1st applicant’s evidence is accurate.
79. Then, the judge went on to reach his reasoned determination on the issue:[85]
“ I find D1 not an honest witness on this point. He is clearly making up his evidence to try to explain why he conveniently failed to record the 3 meetings on 30th November, 3rd December and 4th December 2009 he had with PW1 in the official diary or notebook. There is no reason why such a senior ranking official would commit such a basic mistake.”
80. At best, the 1st applicant’s explanation for his conduct was extraordinary at worst, as the judge found, it was “made up”. In prospect of Cheung being called to give evidence, as he was on 7 December 2009, together with the 2nd applicant he had conducted three meetings with Cheung in the week before Cheung was to commence testimony and the very fact of those meetings, let alone what had ensued in them, was not reflected in any way in his notebook or in the official diary. Having regard to the fact that the 1st applicant was a Chief Investigator of the ICAC the judge was entitled to describe that failure as a “basic mistake” and to reject the 1st applicant’s explanation that he had merely forgotten to make those entries. Furthermore, the judge was entitled to find, as he did, that the failure of the 1st applicant to make a record of the fact that Cheung had been shown the ICAC surveillance films was a “deliberate failure” and that it evidenced the fact that “the intention of D1 was to so pervert”.[86]
Gambling losses: an explanation for dissipation of the monies obtained by Cheung in the fraudulent warrant trading scheme
81. There was no dispute that the assertion of gambling losses being advanced by Cheung as an explanation for the dissipation of money that he had obtained in the fraudulent warrant trading scheme was discussed at the meeting of 3 December 2009. At issue, was whether or not Cheung was telling the truth that the 1st applicant had suggested that Cheung advance that explanation in his testimony in court or whether, as the 1st applicant had testified, the suggestion had been made first by Cheung in the meeting of 30 November 2009.
82. The judge noted that at the meeting of 3 December 2009, at a time when only Cheung and 2nd applicant were present, Cheung had raised the issue of having been “taught” that explanation by the 1st applicant on an earlier occasion:[87]
(A = the 2nd applicant and C = Cheung)
“ 56. C : Er, one thing (I) want to ask you. Er, I went back and thought about the few things that your boss taught me that day.
57. C : First, he said I (might cite) losing my assets on…on…on horse gambling. But after some thought, hey, now he has taught me this, then how are you going to answer when someone asks you which horses which you have bet on have lost (in the races)(?)
58. A : That’s it, I have thought it over.
59. C : Well, I… [indistinct]
60. A : Did yo…yo…you hear what I said next(?) Hello!
61. C : Hah, you did not say (anything). Oh, you did, you mentioned Macau.
62. A : Yes, would that be the case?
63. C : You mentioned losing in Macau.
64. A : Yes, would that be the case?
65. C : Is it that there wasn’t any movement record when you mentioned Macau?
66. A : Yes… (it’s) very complete.
67. C : So you are suggesting that I cite losing (money) in gambles at that time. Your boss has taught me how to gamble on horses, saying that, (“)Now(…)(”). I don’t know what he said. He said, well, he taught… he taught… it depends on whether you can hear how he teaches horse gambling, er, to lose is no…nothing...‘si’, nothing, no evidence. Well, that’s it, no evidence. The point is, when people ask me, (“)Hey, which horses have failed (you)(?)(”) There is no reason I cannot name one, big brother.
68. A : That’s why I said, didn’t you hear the reservation I raised on that occasion?
69. C : No, you did not say it!
70. A : No, you saw me!
71. C : I see, that facial (expression).
72. A : There was some reservation on my face.
73. C : You were simply silent on that day.” [Italics added.]
83. The judge noted that at a later stage, when the 2nd applicant and Cheung had been joined by the 1st applicant at ICAC Headquarters, Cheung had reverted to his earlier assertion of having been ‘taught’ on an earlier occasion to testify that he had lost money gambling.[88] At the outset, Cheung raised the matter directly with the 1st applicant and there ensued a conversation between the three of them, in which suggestions were made by the 1st applicant to Cheung as to how to answer any questions arising:[89]
(A = 1st applicant; B = 2nd applicant and C = Cheung)
“ 1656. C : Um… Kevin, you mentioned about gambling on horse racing that day Je (transliteration)? I have…think about, seemed to be…
1657. A : Cannot be solved…
1658. B : Why?
1659. A : Someone ask you - did you gamble last week?
1660. B : Did (you) gamble last week?
1661. A : Last week, you treat me as … did you gamble last week?
1662. C : If I answer yes…yes!
1663. B : Yes, (you) did gamble, bet it for fun? [A: Which race did you bet on?]
1664. C : I don’t know how to answer. He said… well…
1665. B : Well, how can I remember… did you have…
1666. C : No, that is, well, you, taught me that day, er, losing (the money) on horse gambling. However, you of course have to…well, now you say like that, [B: (Coughing sound)] that is, your point of view is losing a lot of money. Well, it is unreasonable that (you) don't remember even the name of one horse. Well, someone asks you, wow, damn it…
1667. B : Well, I don’t know which horse you I lost on, lost on which horse?
1668. C : Pardon?
1669. B : Which horse did you lose on?
1670. C : How can I know which horse I lost on? I really don’t know. (I) really don’t know how to answer.
1671. B : Did you f-follow the, follow Ah, follow the people of ‘Sap Chai’ to gamble? You gambled on what the others gambled, so you didn’t know even the name of the horse?
1672. C : How could it be? Did I phone ‘Sap Chai’ last week? Is it, isn’t it so comical?
1673. B : That is, followed him to gamble on horse racing. Sometimes I forgot which horse I bet on.
1674. C : No. It should be over a year… it should be over a year… that I didn’t contact him. How come I followed ‘Sap Chai’ to bet on horse racing in these one odd years without reason?
1675. B : No. In the past, I mean, those (you) b-bet on i…i…in the past.
1676. C : I see…you are talking…that is, those (you) bet on previously.
1677. B : Yes!”
84. Shortly afterwards, the 1st applicant made an additional suggestion to Cheung:[90]
“ How about you, have $200,000 in the bank, is it right? Well, why? Because you had bought a flat, had renovations. You are also a spendthrift, huh wow. In the past, in Macau, also.. also.. also lost (the money, also lost on betting on horses…that is, I am talking about in the past, in the past!”
85. Of the interchange, the judge determined:[91]
“ This short but telling exchange has the following effect. Confirming what PW1 had said earlier to D2 in the absence of D1 was true. Since D1 did not deny what PW1 was implying, that is, on a previous occasion D1 had talked with PW1 about using horse racing as an excuse, confirming what PW1 was saying about D1 telling him to use horse racing as an excuse was true. Furthermore, D2’s finishing of PW1’s sentence confirmed D2’s taking part in the discussion on that previous occasion.
In the exchange, it is clear that D1 still considered that the explanation of horse racing would work, insisting that PW1 could answer that he had forgotten which races he had bet on if asked.
When PW1 appeared doubtful of the explanation, D1 went on to lead PW1 through a series of answers to try to get PW1 to understand and accept that to say money was lost through gambling in Macau casinos was a viable answer to give when being questioned.”
86. In the result, the judge concluded that:[92]
“ …when D1 and D2 had the discussion with PW1 about how PW1 could answer questions concerning his assets, neither D1 nor D2 believes that PW1 had lost all his assets through gambling on horses and in casinos. I find that D1 and D2 did together try to get PW1 to give this false answer when being questioned at trial.”
87. Clearly, the foundation for the judge’s acceptance of the evidence of Cheung in respect of this issue was the dialogue between them recorded in the tape of the meeting of 3 December 2009. The judge was entitled to infer not only from the lack of denial by the 1st applicant of the assertions made by Cheung but also from the positive suggestions made by the 1st applicant that Cheung’s evidence was true. Obviously, that finding was necessarily a rejection of the 1st applicant’s evidence.
88. Further, the judge was entitled to determine that this finding corroborated the evidence of Cheung in respect of the meeting of 30 November 2009, in which he testified that the 1st applicant raised losses in gambling on horses for the first time as an explanation for the dissipation of the assets of Cheung. Clearly his use of the word ‘corroborated’ was not in its technical legal meaning. Rather, he meant that it confirmed that evidence. Similarly, the judge was entitled to find, as he did, that the issue was discussed yet again at the meeting of 4 December 2009.[93]
The use in testimony by Cheung of his contemporaneous notes of meetings with the applicants
89. As the judge noted, Cheung testified that he had made notes of four of the meetings held with the applicants (3, 13 and 30 November and 4 December 2009), to which notes he referred from time to time to refresh his memory when giving evidence.[94] He had made the notes on legal advice and for no other reason. He did not know to what use they might eventually be put.
90. Whilst it is the fact that the judge found that the 1st applicant had used the fact that he had audio-taped two of the meetings with the applicants to try “to get the proceedings in his own trial stayed” he made no such finding in respect of the contemporaneous written notes of the four meetings.[95] That is not surprising given the obvious difference between the two. The audio tapes provided primary evidence of the conversation between the parties on 23 November and 3 December 2009. The contemporaneous written notes were used by Cheung only as memory refreshing material. Other than adverting to the fact that Cheung had used those notes to refresh his memory from time to time, the judge made no reference to those notes in his Reasons for Verdict. In particular, he made no reference at all to the contents of any of those notes. The fact that the judge did not stipulate specifically that they carried no independent weight is nothing to the point. That much was blindingly obvious.
The manner in which Cheung was dealt with by the court whilst giving evidence
91. Complaint was made in written submissions, but not addressed in oral submissions by Mr Duncan, that there were material irregularities arising from the manner in which Cheung was treated by the court and in the manner in which Cheung responded to cross-examination, asserting that he could not remember.
92. At the outset of proceedings on the second day of his testimony, 31 January 2012, Cheung informed the judge:[96]
“ I cannot remember a lot of things and my mind is not very clear, I don’t want to give further evidence, my head aches a lot.”
When the judge enquired whether or not he was unwell, but that he would be able to continue when he felt better, Cheung replied:
“ No, my emotion is not good, my mind is not very clear, I don’t want to give evidence further.”
93. In the face of further enquiries from the judge, Cheung confirmed that he wished to stop giving evidence, “because whenever I think back about the facts of the case, my head feel very painful.”
94. In those circumstances, the judge adjourned the hearing so that Cheung could be medically examined. The following day, the court was informed that Cheung had been examined at Queen Elizabeth Hospital and that he was diagnosed as showing signs of “emotional instability”. As a result, a report was obtained from Siu Lam Psychiatric Centre, which was presented to the court on 2 February 2012. That report, determined that Cheung was “medically fit” to attend court. When Cheung returned to the witness box soon afterwards, he confirmed that he was prepared to answer questions and did so.[97]
95. In face of questions from both counsel for the prosecution and counsel for the 1st applicant, Mr Adams, the judge advised Cheung of his rights in respect of self-incrimination. In those circumstances, Cheung nevertheless answered questions from both counsel.[98] However, in respect of further questions asked by Mr Adams about offences of fraudulent warrant trading, other than those for which he had been convicted, and having been warned of his rights in respect of self-incrimination, Cheung accepted the judge’s suggestion that he seek independent legal advice. As a result, the case was adjourned again.[99] On the following day, 10 February 2012, the court was informed that legal aid was not available to assist a witness in a criminal trial. Having been informed that uncooperative behaviour of a witness could constitute contempt of court, Cheung continued with his evidence.[100]
96. On 13 February 2012, at the request of Cheung’s wife and sister, proceedings were adjourned yet again so that Cheung could consult with a lawyer provided by the family. On 14 February 2004, the court was informed by Mr Chang that he had advised Cheung of his rights and that he was “satisfied that he is now fully understanding his privilege, he has still the privilege.”[101] Immediately thereafter, cross-examination of Cheung by Mr Adams resumed.
97. On 15 February 2012, Mr Adams made an application for ‘stay’ of the proceedings on the basis of an abuse of process, namely:[102]
“ It’s a contempt of court by this witness endlessly lying, endlessly avoiding questions, endlessly denying the very fundamentals of the scheme which is so easy thing to remember and that he patented does remember, endlessly answering a question with a question.”
98. In ruling against the application, the judge said:[103]
“ I find that despite the occasionally seemingly uncooperative attitude of PW1 in both his examination in chief and his cross-examination so far, there is no question that the defendants will not be able to continue to have a fair trial.”
99. It is clear that the judge was correct to describe Cheung as occasionally displaying an uncooperative attitude. It is to be noted that he went on to find in his reasons for verdict that he was lying in respect of one issue, evasive in respect of another, manipulative and the like. No doubt, Cheung was a difficult witness for the judge to deal with at the trial. However, we are satisfied that there is no merit in the submission that there were material irregularities in the various steps, described above, that the judge took at trial to deal with Cheung.
The 2nd applicant
The ICAC guidelines
100. As the judge noted the extracts from the ICAC Training Bulletin and an extract from a document entitled ‘Court Procedures: Witnesses refreshing Memory before Court’ were all adduced into evidence through Mr Kwong Lai Fan, a Senior Investigator of the ICAC.[104] One extract from the Training Bulletin had a ‘version date’ of “06/12/96”.[105] Three other extracts from the Training Bulletin had ‘version dates’of 13/06/2008.[106] A document described as an ‘Extract of RO: Refreshing memory prior to trial’ had a ‘version date’ of “10.6.2008”. Finally, the document entitled ‘Court Procedures: Witnesses refreshing Memory before Court’ had a ‘version date’ of “02/02/2009”. Of the dissemination of information contained in the documents the judge noted of Mr Kwong’s testimony that “the documents would have been put online for officers, including D1, D2 and D3, to view.”[107]
101. As the judge noted, the theme of the guidelines provided by those ICAC documents was clear: “..officers should be conscientious in ensuring that witnesses are not coached or trained, either intentionally or even inadvertently, when refreshing their memories from their statements and any exhibits referred to in their statements”; reference was made to the judgment of this court in HKSAR v Lee Wing Kan[108] in which that injunction was re-emphasised, the practice of summarising paragraphs of his statement to a witness in a memory refreshing exercise was condemned and the direction given that it must stop; also, reference was made to the determination of the Appellate Committee of the Court of Final Appeal in the same case;[109] officers cannot “coach a witness, comment or cross examine on the evidence to be given by a witness while that person is refreshing his memory”[110]; officers cannot “Refer or allow a witness to refer to ..…witness statements once a person has commenced giving evidence, unless given leave to do so by the court”.[111]
102. No specific evidence was adduced that the ICAC guidelines or directions contained in the various documents were in force at the material time, namely on and between 3 November and 4 December 2009. No issue was taken either by questioning or by submission at trial that they were not in force at the material time. Counsel for the 2nd applicant questioned Mr Kwong on one issue only, namely the status of an ICAC Standing Order. He received affirmative answers to the suggestion that they were internal regulations, breach of which might lead to internal disciplinary action by the ICAC. The 1st applicant was led in his evidence-in-chief on the basis that the guidelines and directions were in force at the material time. When asked to deal with the allegation made in Particular (iii) of Charge 2 he said “I did not deliberately ignore the ICAC internal guidelines.”[112]
103. So, the issue of whether or not the ICAC guidelines were in force at the material time was raised for the first time in this court by Mr Ross for the 2nd applicant. We are satisfied that the submission is bereft of merit. It is clear from the documents themselves that the directions and guidelines promulgated by ICAC in 2008 address concerns expressed by judgments of this court and the Determination of the Appellate Committee of the Court of Final Appeal arising in dealings by ICAC officers with prospective witnesses in criminal trials in the context of memory refreshing. The need for ICAC officers and other law enforcement officers to abide by the principles enunciated there was and is an ongoing matter. There was no evidence to suggest that any of the directions and guidelines issued in 2008 and 2009 had been withdrawn by the material period. We are satisfied that at the material time ICAC directions and guidelines addressed those principles and, in particular, proscribed the impugned conduct of the applicants.
Autrefois convict
104. Ground 3 of the grounds of appeal filed on behalf of the 2nd applicant asserted that “the conviction for Charge 2 is bad under the doctrine of autrefois convict as at the time of conviction the applicant had already been convicted of Charge 1.” The issue was not raised at trial.
105. In his written submissions Mr Ross contended that “when the Applicant (2nd) was convicted and sentenced on Charge 2, he had already been convicted and sentenced on Charge 1.” That assertion is incorrect. The 2nd applicant was convicted, in numerical sequence of the charges, on both charges on 13 April 2012. He was sentenced on both charges on 30 April 2012.
106. The plea of autrefois convict is a plea in bar, in that it bars further proceedings on the indictment. In Yeung Chun Pong v Secretary for Justice in the judgment of this court Stock JA, as he was then, addressed the parameters of the plea of autrefois acquit.[113] However, his analysis of the relevant principles is applicable to the plea of autrefois convict. First, he noted that the “parameters of the plea are… narrow”.[114] Then, he said:
“ The test of autrefois acquit is one directed at the elements of the two offences under comparison. By this is meant a comparison of the constituent elements in law of the offences charged, and the facts asserted in the charges themselves. “For the doctrine to apply it must be the same offence both in law and in fact”10. This is a “purely legal test of whether the person’s acquittal in the first proceedings necessarily in law involves an acquittal in the second” and covers an “implied alternative acquittal … where the jury could lawfully have convicted the defendant on an alternative charge to the one being tried but have returned no verdict on it.”11 It is not a test that compares the testimony given in the previous trial with the testimony that is anticipated in the second trial. It is this latter notion encouraged by the phraseology of certain judgments — such as the “same matter” in Wemyss v Hopkins12— that has caused confusion and a blurring of lines, a confusion that has been exposed in R v Beedie13, and analysed in depth in Pearce v The Queen14. Since it is not a test that examines testimony to be given, its validity or invalidity does not change with emerging testimony. It is either good or bad ab initio.
________________
10 Connelly v DPP at p.1339.
11 Corker and Young, Abuse of Process in Criminal Proceedings (2nd ed., 2003) para.7.20.
12 (1874-75) LR 10 QB 378.
13 [1998] QB 356.
14 (1998) 194 CLR 610. ”
107. Stock JA cited with approval the joint judgment of McHugh, Hayne and Callinan JJ in the High Court of Australia in Pearce v the Queen[115] in which they said:[116]
“ Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offence charged are identical or in which all of the elements of one offence are only included in the other.”
108. Further, Stock JA noted that the Court of Appeal of England and Wales in R v Beedie[117] described the “same narrow ambit of the bar”. There, in the judgment of the court Rose LJ said that the concession of counsel for the appellant was made correctly that the majority of the House of Lords in Connelly v Director of Public Prosecutions[118] had identified a narrow principle of autrefois acquit applicable only when the same offences alleged in the second indictment. Of those judgments, Rose LJ said:[119]
“ Lord Devlin said, at pp. 1339 - 1340: ‘For the doctrine to apply it must be the same offence both in fact and in law,’ and he went on, having rejected the idea that an offence may be substantially, rather than precisely, the same as another in its legal characteristics, to reject the suggestion that autrefois applies in favour of an accused who has been prosecuted on substantially the same facts. Lord Pearce, at p. 1368, agreed with the opinion of Lord Devlin. Lord Reid said, at p. 1295:
‘Many generations of judges have seen nothing unfair in holding that the plea of autrefois acquit must be given a limited scope … I cannot disregard the fact that with certain exceptions it has been held proper in a very large number of cases to try a man a second time on the same criminal conduct where the offence charged is different from that charged of the first trial.’ ”
Different offences
109. It is clear that the elements of the offence of perverting the course of public justice are quite different from the offence of misconduct in public office.
Misconduct in public office
110. As the judge noted, the elements of the latter offence were described in the judgment of Sir Anthony Mason in the Court of Final Appeal in Sin Kam Wah & Another v HKSAR:[120]
“ The offence is committed where:
(1) a public official;
(2) in the course of or in relation to his public office;
(3) wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;
(4) without reasonable excuse or justification; and
(5) where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.
The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful. Wilful misconduct which is without reasonable excuse or justification is culpable.”
Perverting the course of justice
111. The offence of perverting the course of justice has been considered by the Court of Final Appeal in HKSAR v Egan[121] and HKSAR v Wong Chi Wai. In the latter case, Ribeiro PJ summarised the elements of the offence:[122]
“ An attempt to pervert the course of justice is “the doing of some act which has a tendency and is intended to pervert the administration of public justice.”18 The actus reus is thus the doing of the act with the prohibited tendency and the mens rea is the intention to pervert the course of justice.
With regard to the actus reus generally, the following propositions may be stated:
Although it is called an “attempt”, it is a substantive offence. But like an inchoate offence, it is committed even where the act with the prohibited tendency does not actually result in interference with the course of justice.19
A person’s conduct has a tendency to pervert the course of justice if it has a tendency towards “impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice”.20
The tendency must involve impairing the administration of justice in curial proceedings. Conduct with a tendency to result in unlawfulness which does not interfere with curial proceedings does not constitute the offence.21
The following propositions may be stated in respect of the mens rea of the offence:
To prove that a defendant intended to pervert the course of justice, it is necessary to prove that he knew that his conduct would have or that he intended it to have a tendency to pervert the course of justice in relation to the curial proceedings in question.22
Where his conduct has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the defendant intended to perform the relevant act. But where the act does not manifestly have the prohibited tendency, it is necessary to prove the abovementioned specific intent on the defendant’s part.23
________________
Egan §122, citing R v Vreones [1891] 1 QB 360.
Egan §123, citing R v Machin [1980] 1 WLR 763 at 767; R v Toney [1993] 1 WLR 364 at 367; R v Rogerson (1992) 174 CLR 268 at 279, 297; R v Meissner (1995) 184 CLR 132 at 141.
Egan §124, citing R v Machin [1980] 1 WLR 763; HKSAR v Wong Shing Yim Peter [2003] 3 HKLRD 1046 at §19; and R v Rogerson (1992) 174 CLR 268 at 280.
Egan §126, citing R v Vreones [1891] QB 360 at 369; and R v Rogerson (1992) 174 CLR 268 at 275-276.
Egan §126.
Egan §125, citing R v Rogerson (1992) 174 CLR 268 at 280-283; HKSAR v Wong Shing Yim Peter [2003] 3 HKLRD 1046 at §29. ”
112. As those descriptions of the two offences evidence, there are significant differences in the elements of the two offences. Misconduct in a public office requires that the defendant be a public official. Needless to say, there is no such requirement in the offence of perverting the course of public justice. Whereas the element of mens rea in the latter offence requires an intention to do so the element of mens rea in the former offence can be satisfied by the wilful disregard of the risk that his conduct was unlawful.
113. Furthermore, although the offences as particularised in the Particulars of Offence have overlapping particulars in respect of particulars (i) and (ii), particulars (iii) and (iv) of Charge 2 find no place in the Particulars of Offence of Charge 1. Particular (iii) alleged breach of the ICAC internal guidelines in respect of dealing with witnesses and particular (iv) alleged that the applicant had suggested to Cheung that, without the leave of the court, he read his witness statements during the course of his evidence.
Conclusion
114. In the result, we are satisfied that there is no merit in this ground of appeal.
The 3rd applicant
Charge 1
115. Mr Dunn reminded the court, the 3rd applicant was acquitted by the judge of Charge 1. The judge said that he was not satisfied that the 3rd applicant was “part of the joint enterprise with the 1st and 2nd applicants to commit the act’s described in particulars (i) and (ii) of Charge 1.”[123] Earlier, in his Reasons for Verdict he had found that, although the 3rd applicant was present together with the 2nd applicant at a meeting with Cheung on 3 November 2009 at which the 2nd applicant had suggested to Cheung that he deny that he had sought to persuade his fellow traders in the fraudulent warrant scheme to co-operate with the ICAC, there was no evidence of his participation in their conduct.[124] Similarly, although the judge found that the 3rd applicant was present together with the 2nd applicant at a meeting on 23 November 2009 at which the 2nd applicant supplied information as to the payments made to those traders operating the fraudulent warrant trading scheme, there was no evidence of the 3rd applicant’s participation in that conduct.[125]
Charge 2
Particular (iv)
116. In respect of the tape recorded meeting of 23 November 2009 with Cheung, at which the 3rd applicant was present together with the 2nd applicant, the judge said: “I am not sure if D3 approved of D2’s hinted suggestion to PW1 to read his statement even after starting to give evidence. I will grant him the benefit of the doubt on this point.”[126]
117. However, in respect of various other parts of the dialogue with Cheung in that meeting the judge said that he was satisfied that both the 2nd and 3rd applicants were coaching Cheung. The judge said:[127]
“ Between counters 154 and 168, it is clear that D3 had joined in the discussion with PW1 of his evidence, specifically in relation to whether PW1 had taken some money in the form of a bonus. D3 suggested for PW1 to go back to watch his video recorded interview in order to see how to deal with that area. PW1 said that the other side would not be looking at his tape. D3 said the opposition could ask for the tape. D3 proceeded to state his view on how the $300,000 that PW1 was taking would be distributed. PW1 then explained that in relation to wages it had been written in his statement already. D1 interjected by saying that in relation wages he was sure that it had been mentioned, which D3 questioned at counter 163 if it was the case and D1 said that he could remember that it was in the first statement. The 3 of them then continued to discuss about how the bonus was distributed. At counter 197, D3 suggested that one of the questions PW1 might be asked is why so much money was given to ‘Sup Chai’.
Even on this segment alone, I find that D3 and D2 had together coached PW1 as a witness, thus ignoring the internal guidelines of the ICAC. On this alone, D3 could be guilty of charge 2, subject to a finding on willfulness, reasonable excuse and justification.”
118. Shortly thereafter, the 3rd applicant intervened and said “how to explain why the money would be distributed by you?” Of that, the judge said:[128]
“ The proper understanding of what D3 said with regard to the context of the conversation that had been going on is that, D3 was reminding PW1 that he would also have to prepare himself for questions about how the money from the warrant trading came to be distributed by PW1.”
119. The judge went on to find that in subsequent dialogue the 2nd and 3rd applicants discussed with Cheung “how best to deal with questions from the opposition” and “how PW1 should best answer certain questions when put to him.”[129] Finally, he found that in the conversation that ensued between the 3rd applicant and Cheung, after the 2nd applicant left them in order to go to the toilet that “D3 was carrying on a discussion with PW1 about his evidence and performing some analysis with PW1 about how he should be answering questions.”[130]
120. In the result, the judge concluded:[131]
“ I find that the overall effect of what D3 was doing was to coach PW1. On the basis of the evidence referred to above, I find that D3 was in breach of the internal guidelines. I find that his breach amounted to a misconduct. I find that he had misconducted himself wilfully, without reasonable excuse and justification.”
121. In convicting the 3rd applicant, the judge said:[132]
“ I find that D3 did together with D2 at the 23rd November 2009 meeting coach PW1, commented on the evidence to be given by PW1. I find that this is a failure to follow the ICAC guidelines.
I find that this amounted to a misconduct on D3’s part. I find that the misconduct is serious and was committed by D3 wilfully, without reasonable excuse or justification.”
122. There is no merit in Mr Dunn’s complaint the judge failed to have adequate regard to the fact that the 3rd applicant was the most junior of the three applicants. It was an admitted fact that although his rank was that only of Assistant Investigator, nevertheless he had been an ICAC officer since 1996. On any view, even if it was a case that he was not an ambitious officer, nevertheless he was an officer of 13 years’ experience at the material time. The fact that he had been present at the meeting with Cheung on 3 November 2013 in which the 2nd applicant, a senior investigator of ICAC, had suggested to Cheung that he gave false evidence was not a matter that could be prayed in aid of the 3rd applicant in respect of his culpability in joining in the coaching of Cheung on 23 November 2009. The 3rd applicant, as the judge found, had not misconduct himself at the 3 November 2009 meeting, although he was present throughout. In those circumstances, the judge found that no criminal culpability attached to the 3rd defendant.
123. By contrast, it is clear from the judge’s findings that at their meeting of 23 November 2009 he participated in a sustained manner in the coaching of Cheung. As the judge found in terms that was serious misconduct, which strikes at the root of the curial system.
CONCLUSION
124. We are satisfied that there are no merits in the grounds of appeal advanced on behalf of all the applicants in support of their applications for leave to appeal against conviction. Accordingly, those applications are dismissed.
| (Wally Yeung) |
(MICHAEL LUNN) |
(J. POON) |
| VICE-PRESIDENT |
JUSTICE OF APPEAL |
JUDGE OF THE COURT OF |
| |
|
FIRST INSTANCE |
Mr William Tam, DDPP and Ms Irene Fan, SPP, of the Department of Justice, for the respondent
Mr Peter Duncan, SC, Mr Nicholas Adams and Mr Conrad Wan instructed by Tang, Wong & Cheung, assigned by Director of Legal Aid, for the 1st applicant
Mr Phillip Ross instructed by Kent Tam & Co., assigned by Director of Legal Aid, for the 2nd applicant
Mr John Dunn instructed by Christopher K. Y. Wong assigned by Director of Legal Aid, for the 3rd applicant
[1] HKSAR v Ng Chun To, Raymond & Another (CACC 178/2010; unreported, 31 July and 19 November 2013).
[2] Reasons for Verdict, paragraph 9.
[3] Reasons for Verdict, paragraphs 12-23.
[4] Reasons for Verdict, paragraph 137.
[5] Reasons for Verdict, paragraph 127.
[6] Reasons for Verdict, paragraph 42.
[7] Reasons for Verdict, paragraph 16.
[8] Reasons for Verdict, paragraphs 26-92.
[9] Reasons for Verdict, paragraphs 26-48.
[10] Reasons for Verdict, paragraph 30.
[11] Reasons for Verdict, paragraphs 59-67.
[12] Reasons for Verdict, paragraphs 55-58.
[13] Reasons for Verdict, paragraphs 68-83.
[14] Reasons for Verdict, paragraphs 49-54.
[15] Reasons for Verdict, paragraphs 86-92.
[16] Reasons for Verdict, paragraph 137.
[17] Reasons for Verdict, paragraph 138.
[18] Reasons for Verdict, paragraph 142.
[19] Reasons for Verdict, paragraph 139.
[20] Reasons for Verdict, paragraph 143.
[21] Reasons for Verdict, paragraph 143.
[22] Reasons for Verdict, paragraph 144.
[23] Reasons for Verdict, paragraph 145.
[24] Reasons for Verdict, paragraphs 147-8.
[25] Reasons for Verdict, paragraph 164.
[26] Reasons for Verdict, paragraph 173.
[27] Reasons for Verdict, paragraph 202.
[28] Reasons for Verdict, paragraph 205.
[29] Reasons for Verdict, paragraphs 209 and 212.
[30] Reasons for Verdict, paragraph 220.
[31] Reasons for Verdict, paragraph 222.
[32] Reasons for Verdict, paragraph 224.
[33] Reasons for Verdict, paragraph 229.
[34] Reasons for Verdict, paragraph 231.
[35] Reasons for Verdict, paragraph 244.
[36] Reasons for Verdict, paragraph 246.
[37] Reasons for Verdict, paragraph 341.
[38] Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR 192.
[39] Reasons for Verdict, paragraph 264.
[40] Reasons for Verdict, paragraphs 267-268.
[41] Reasons for Verdict, paragraph 291.
[42] Reasons for Verdict, paragraph 246.
[43] Reasons for Verdict, paragraph 299.
[44] Appeal Bundle; exhibits P 16-20, pages 1788-93.
[45] Reasons for Verdict, paragraphs 300-1.
[46] Reasons for Verdict, paragraphs 306 and 343.
[47] Reasons for Verdict, paragraphs 347 and 351.
[48] Reasons for Verdict, paragraphs 317-9.
[49] Reasons for Verdict, paragraphs 312 and 324.
[50] Reasons for Verdict, paragraphs 46, 66, 137-147.
[51] Reasons for Verdict, paragraphs 164-5.
[52] Reasons for Verdict, paragraph 115.
[53] Reasons for Verdict, paragraph 137.
[54] Reasons for Verdict, paragraph 347.
[55] Reasons for Verdict, paragraphs 350-1.
[56] Reasons for Verdict, paragraphs 137-145.
[57] Reasons for Verdict, paragraph 137.
[58] Reasons for Verdict, paragraph 138.
[59] Reasons for Verdict, paragraph 148.
[60] Reasons for Verdict, paragraphs 170-4; Appeal Bundle; pages 1436-8, counters 81-94.
[61] Reasons for Verdict, paragraph 178.
[62] Reasons for Verdict, paragraph 305.
[63] Reasons for Verdict, paragraphs 303-4.
[64] HKSAR v Egan (2010) 13 HKCFAR 314; at page 329, paragraph 2.
[65] HKSAR v Egan (2010) at page 411, paragraph 304.
[66] Reasons for Verdict, paragraph 115.
[67] Appeal Bundle; counters 1587, 1773 and 1903.
[68] Reasons for Verdict, paragraph 120.
[69] Reasons for Verdict, paragraph 116.
[70] Reasons for Verdict, paragraphs 118 and 122.
[71] Appeal Bundle; page 1578, counters 860-6.
[72] Appeal Bundle; page 393 I - M.
[73] Appeal Bundle; page 418 S.
[74] Appeal Bundle; pages 375 P, 381 Q, 418 O and 422 J.
[75] Appeal Bundle; page 396 A.
[76] Appeal Bundle; page 402 Q.
[77] Reasons for Verdict, paragraphs 123-4.
[78] Appeal Bundle; pages 372 P - 375 N.
[79] Reasons for Verdict, paragraphs 227-8.
[80] Appeal Bundle; pages 1759-61, counters 1903-1912.
[81] Reasons for Verdict, paragraphs 229 and 231.
[82] Reasons for Verdict, paragraph 243.
[83] Reasons for Verdict, paragraph 244.
[84] Reasons for Verdict, paragraph 290.
[85] Reasons for Verdict, paragraph 291.
[86] Reasons for Verdict, paragraph 246.
[87] Reasons for Verdict, paragraph 153.
[88] Reasons for Verdict, paragraph 158.
[89] Appeal Bundle; pages 1707-10, counters 1656-1677.
[90] Appeal Bundle; page 1712, counter 1688.
[91] Reasons for Verdict, paragraphs 159-161.
[92] Reasons for Verdict, paragraph 164.
[93] Reasons for Verdict, paragraphs 167-8.
[94] Reasons for Verdict, paragraphs 26, 59, 69 and 86.
[95] Reasons for Verdict, paragraph 138.
[96] Appeal Bundle; page 2083.
[97] Appeal Bundle; page 2096.
[98] Appeal Bundle; pages 2178 and 2272.
[99] Appeal Bundle; pages 2298-9.
[100] Appeal Bundle; page 2312.
[101] Appeal Bundle; page 2345.
[102] Appeal Bundle; page 2418.
[103] Appeal Bundle; page 2431.
[104] Reasons for Verdict, paragraphs 103-111.
[105] Appeal Bundle; page 1173, exhibit P 16.
[106] Appeal Bundle; pages 179-1793, exhibits P 18, P 19 and P 20.
[107] Reasons for Verdict, paragraph 273.
[108] HKSAR v Lee Wing Kan (CACC 199/2006; unreported, 9 March 2007); (FAMC 28/2007; unreported, 18 September 2007).
[109] Reasons for Verdict; paragraph 274, exhibit P 15.
[110] Reasons for Verdict; paragraph 278, exhibit P 17.
[111] Reasons for Verdict; paragraph 280, exhibit P 17.
[112] Appeal Bundle; page 427 O - P.
[113] Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1.
[114] Yeung Chun Pong v Secretary for Justice; page 10, paragraph 18.
[115] Pearce v the Queen [1998] 194 CLR 610.
[116] Pearce v the Queen, page 618.
[117] R v Beedie [1998] QB 356.
[118] Connelly v Director of Public Prosecutions, [1964] AC 1254.
[119] R v Beedie, pages 360-1.
[120] Sin Kam Wah & Another v HKSAR (2005) 8 HKCFAR 192 at pages 210 I - 211 C, paragraphs 45-6.
[121] HKSAR v Egan (2010) 13 HKCFAR; Ribeiro PJ at pages 361-2, paragraphs 122-7.
[122] HKSAR v Wong Chi Wai (FACC10/2012; unreported, 23 September 2013 at paragraphs 30-2).
[123] Reasons for Verdict, paragraph 341.
[124] Reasons for Verdict, paragraph 206.
[125] Reasons for Verdict, paragraphs 220 and 234.
[126] Reasons for Verdict, paragraph 319.
[127] Reasons for Verdict, paragraphs 311-312.
[128] Reasons for Verdict, paragraph 313.
[129] Reasons for Verdict, paragraphs 315 and 320.
[130] Reasons for Verdict, paragraph 323.
[131] Reasons for Verdict, paragraph 324.
[132] Reasons for Verdict, paragraphs 350-1.
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