HKSAR v. KEVIN EGAN

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FINAL APPEAL NO. 4 OF 2009 (CRIMINAL)

(ON APPEAL FROM CACC NO. 248 OF 2006)

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FINAL APPEAL NO. 5 OF 2009 (CRIMINAL)

(ON APPEAL FROM CACC NO. 248 OF 2006)

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.  Four charges are involved in these appeals which come to us via a trial in the District Court (Judge Fung) and appeals therefrom to the Court of Appeal (Ma CJHC, Tang VP and Wright J).  Charge 1 is of conspiracy to pervert the course of public justice.  Charge 2 is of attempted perjury.  Charges 4 and 5 are each of attempting to disclose information about the identity of a participant in the witness protection programme.  Three appellants are before us.  They are Ms Mandy Chui, Mr Andrew Lam and the prosecution.  Ms Chui was convicted by the trial judge on Charges 1 and 2.  Her convictions were unanimously affirmed by the Court of Appeal.  She now appeals to us against those convictions.  Mr Andrew Lam was convicted by the trial judge on Charge 1.  It was by a majority (Tang VP dissenting) that the Court of Appeal affirmed his conviction.  He now appeals to us against his conviction.  Mr Kevin Egan was convicted by the trial judge on Charges 4 and 5.  By a majority (Wright J dissenting) the Court of Appeal quashed Mr Egan’s convictions.  The prosecution now appeals to us against the quashing of Mr Egan’s convictions.

2.  For the reasons given by Mr Justice Ribeiro PJ with whose judgment I agree, I would quash Ms Chui and Mr Andrew Lam’s conviction on Charge 1.  And for the reasons given by the Mr Justice Gleeson NPJ with whose judgment I agree, I would dismiss the prosecution’s appeal against the Court of Appeal’s judgment quashing Mr Egan’s convictions on Charges 4 and 5.  I associate myself with Mr Justice Litton NPJ’s observations as to the nature of the fact-finding process.  A trial court : notes the common ground; identifies the issues; abstains from making assumptions; appreciates that the difference between a ruling on a submission of no case to answer and a verdict is more than merely a difference in the test to be applied; 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.  These are matters of substance, and not of form.  Appellate courts intervene for errors of substance, and not for inadequacies of expression.  What will be regarded as a flaw in the fact-finding process must depend on all the circumstances.  So must whether any such flaw will be regarded as fatal to a finding of fact.

3.  What remains for me to deal with is Ms Chui’s conviction on Charge 2.  Her appeal against that conviction raises an issue as to materiality.  Ultimately its result depends on whether the conviction was inevitable.  Ms Chui had attempted to make an affirmation in support of habeas corpus proceedings to have Ms Becky Wong brought before the High Court.  Those proceedings were brought on the basis that Ms Wong was being detained against her will by the Independent Commission Against Corruption (“the ICAC”). 

4.  It should be explained at once why Ms Chui, who was charged with perjury, was convicted only of attempted perjury.  This was because she had acted through an interpreter for the purpose of making an affirmation, and the interpreter was neither sworn nor affirmed.

5.  Shortly stated, the prosecution’s case against Ms Chui for attempted perjury was as follows.  Ms Wong was under the protection of the ICAC as a person being assessed or processed for inclusion in the witness protection programme.  She was not being detained against her will.  Ms Chui knew that Ms Wong was not being detained against her will.  Nevertheless Ms Chui made or attempted to make an affirmation containing statements which were intended to suggest – and which if true would suggest – that Ms Wong was being detained against her will.  Ms Chui did so knowing that those statements were false or not believing that they were true.  And she had omitted a material fact, omitting it in order to give the impression that she believed that Ms Wong was being detained against her will.  The overall object of the exercise was to dissuade Ms Wong from being a witness against Ms Chui’s gentleman friend, Mr Derek Wong, who had been arrested by the ICAC.  Ms Wong was Mr Derek Wong’s secretary.  (Mr Derek Wong, I should mention for the sake of completeness, was convicted on Charge 1 and then absconded while on bail pending appeal to the Court of Appeal.)

6.  As pleaded in the perjury charge, the material misstatements which Ms Chui was accused of having attempted to make were :

(a)  that Ms Wong was a 30% shareholder and director of Ever Brilliant Consultants Ltd and was Ms Chui’s business partner;

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

(c) that Ms Chui was worried about Ms Wong’s well-being because Ms Wong had no close family members in Hong Kong.

7.  Reliance on item (a) above was abandoned by the prosecution at the trial.  The trial judge said in his Reasons for Verdict that he would ignore so much of item (b) above as referred to the snatching of Ms Wong’s mobile telephone.  Nor did he place any reliance on so much of that item as referred to Ms Wong having spoken in a faint and trembling voice.  As to that, the trial judge noted Ms Wong’s evidence that she had spoken in a soft rather than in a trembling voice but that she did not think that Ms Chui was lying when saying that she thought that her ie Ms Wong’s voice was trembling.  That last piece of evidence came about when Ms Wong was asked by Ms Chui’s counsel in cross-examination whether she thought that Ms Chui was lying when she said that her voice was trembling.  Ms Wong answered :

“Telling lies?  I don’t think she was telling lies.  Probably she misunderstood the situation”.

8.  The trial judge found that the attempted affirmation contained a number of material misstatements and one material omission.  That appears from the part of his Reasons for Verdict in which he said this :

“Having accepted the evidence of the prosecution witnesses, I find that [Ms Chui] knew it was false or did not believe it was true when she said [Ms Wong] did not know where she was, she worried about the well-being of [Ms Wong] because she had no close family members in Hong Kong, and she omitted to mention [Ms Wong] had said she was safe and sound which made her alleged belief that [Ms Wong] was detained unlawfully untrue.  The fact [Ms Wong] had no close family in Hong Kong is corroborated by the evidence of her parents and sister and their immigration record, and this fact is material as discussed.”

9.  By virtue of s.43 of the Crimes Ordinance, Cap.200, no one can be convicted of perjury “solely upon the evidence of one witness as to the falsity of any statement alleged to be false”.  The trial judge, as we have just seen, convicted Ms Chui of perjury on the basis of a number of statements and one omission.  As to the falsity of that omission, there was only the evidence of one witness, namely Ms Wong.  The same is true of those statements except for the one that Ms Wong had no close family members in Hong Kong.  As to that one, the trial judge noted that “[Ms Wong’s] father, mother and elder sister Ada Wong all said they were living in Hong Kong and had regular contacts with [Ms Wong].”

10.  So of all the findings of falsity made by the trial judge and affirmed by the Court of Appeal, only one is not caught by s.43.  It is the finding of falsity made against the statement that Ms Wong had no close family members in Hong Kong.

11.  Was that statement material?  Counsel for Ms Chui submits that it was not material.  The trial judge appears to have considered it material, although he does not explain why.  Mr Justice Tang VP, with whom Ma CJHC agreed on this part of the case, explained why he considered it material.   He said :

“Although I agree with [counsel for Ms Chui] that the absence of close family members in Hong Kong was not a condition for [Ms Chui’s] locus standi, it is common sense that if [Ms Wong] did have close family members in Hong Kong, they would be expected to come forward if [Ms Wong] had been detained against her will.  If [Ms Wong] was being detained against her will, the court would want to know why her family was not making or supporting the application.”

I think that the statement was material even if close to the line that separates what was material from what was immaterial.

12.  Quite simply, the effect of s.43 is that any falsity on which a conviction for perjury or attempted perjury is based must be proved by more than the evidence of one witness.  It is of course not the law that there can be no conviction for perjury or attempted perjury unless the prosecution proves the falsity of every statement pleaded in the charge.  But that is not the point.  The point is that much of the falsity found by the trial judge against Ms Chui in convicting her of attempted perjury was attested by no more than the evidence of one witness.  In other words, much of what the trial judge found proved against Ms Chui was not lawfully proved.  Therein lies an error of law of which Ms Chui can – and does – complain. 

13.  The prosecution says that no injustice was occasioned by that error of law.  That would be so if a conviction was inevitable even on the basis that the only inaccuracy lawfully proved is the statement that Ms Wong had no close family members in Hong Kong.  On the issue of whether Ms Chui knew that Ms Wong had close family members in Hong Kong or at least did not believe that she had none, the trial judge said this about Ms Wong’s evidence :

“She never told [Ms Chui] that her close family members were not in Hong Kong.  [Ms Chui] once asked her to help distribute some advertising leaflets of the beauty salon and she told [Ms Chui] that she had an elder sister working for an airline and her sister might get some addresses of airlines and travel agents in Hong Kong.  Although she did not mention that her sister worked in Hong Kong, [Ms Chui] should know that because the leaflets were to be distributed in Hong Kong.”

14.  Is that conclusive on the crucial issues of knowledge of falsity or absence of belief in truth?  There are a number of difficulties standing in the way of an affirmative answer to this question. 

15.  It may have, but I do not think that one can say that it must have, occurred to Ms Chui that a court would or might have wanted to know why it was she rather than any relation of Ms Wong who was moving for habeas corpus.  After all, Ms Chui and Ms Wong were very close.  As to that, this appears from the transcript of the cross-examination of Ms Wong by Ms Chui’s counsel :

“Q. She regarded you like not only a very good friend but like an older sister. 

A.  Agree.”

And the fact remains that Ms Wong chose to speak to Ms Chui rather than to any relation. 

16.  The issue of knowledge or absence of belief is to be judged in the overall context of an allegation of dishonesty to be proved beyond reasonable doubt.  In that context, there is Ms Wong’s evidence that she had spoken in a soft voice and had told Ms Chui that she was hiding in the toilet.  More importantly, there is this question and answer in the cross-examination of Ms Wong by Ms Chui’s counsel :

“Q.  It’s possible, isn’t it, that Mandy entirely misunderstood the signals and signs you were sending?

A.  Agree.”

The prosecution cannot impeach that evidence since Ms Wong was their witness and had not been turned hostile.  If Ms Chui might have been misled into thinking that Ms Wong was being detained against her will, the foundation of the prosecution’s case of attempted perjury on her part will not have been established.

17.  Another aspect of the evidence to be noted is as follows.  Ms Chui’s attempted affirmation was drafted in English by Mr Raymond Lam, then a trainee solicitor in Messrs Massie & Clement, to whom she spoke in Chinese.  Mr Raymond Lam did not take down the Chinese words which Ms Chui spoke.  The process consisted of his putting down in English what he considered to be the effect of what she was saying in Chinese.  As to that, the following emerged in his cross-examination by her counsel :

“Q. And is this right, that after having written the first two paragraphs you found it was too time consuming and thought that you should type it directly onto the computer?

A.  Yes.

Q.  You then stopped writing by hand and jotted down the main points of what you said on another piece of draft paper.

A. Yes.

Q. You then let Mandy go and asked her to come to your office the next morning to swear the affirmation.

A. Yes.

Q. In any event, whatever you wrote or jotted down, you wrote or jotted down in English.

A.  Yes.”

18.  As Lord Esher MR said in Chatenay v. Brazilian Submarine Telegraph Co. [1891] 1 QB 79 at p.82 and Gould J repeated in Yip Kwai Yau v. R (1950) 34 HKLR 82 at p.90, a “true translation” provides “the exact effect of the language used under the circumstances”.  The method adopted by Mr Raymond Lam was far from ideally suited to providing that effect.  And, on any view, it has proved to be unreliable in the present case.  Having drafted a sentence which says that Ms Wong said that the ICAC had “snatched” her mobile telephone, Mr Raymond Lam (who gave evidence for the prosecution) accepted in the witness-box that “snatched” is not the right word for what Ms Chui actually said. 

19.  Nor does it end there.  The problem is wider than that.  It permeates the whole process.  Testifying about what Ms Chui had told him, Mr Raymond Lam eventually said under cross-examination : “I cannot remember exact words because something may get lost in translation and also may get lost in my memory.” 

20.  The unease which that causes is heightened by two things.  First, Mr Raymond Lam had the lying affirmation of the immunized conspirator Mr Frankie Chung in front of him when drafting Ms Chui’s attempted affirmation and had done some copying from the former when drafting the latter.  Secondly, there were persons other than Ms Chui from whom Mr Raymond Lam might have got the impression that Ms Wong had no family in Hong Kong.  Messrs Massie & Clement certainly had instructions to that effect from Mr Derek Wong and Mr Chung.  And there is evidence that Mr Andrew Lam had said, at a lunch which appears to have taken place before Ms Chui’s attempt to make an affirmation, that Ms Wong, unlike another client of his, was unlucky in that she had no friend or relation in Hong Kong to rescue her from unlawful detention by the ICAC.  Since Mr Derek Wong was Mr Andrew Lam’s client, the probability is that it was Mr Derek Wong who told Mr Andrew Lam that about Ms Wong.  Quite simply, Mr Raymond Lam might have been misled by others in what he drafted for Ms Chui to say. 

21.  I am unable to say that a conviction for attempted perjury was inevitable even on the basis that the only inaccuracy lawfully proved is the statement that Ms Wong had no close family members in Hong Kong.  For the reasons which I have given, I would quash Ms Chui’s conviction for perjury.

Mr Justice Chan PJ :

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

22.  I agree with the judgment of Mr Justice Ribeiro PJ. For the reasons given by him, I would also allow Chui’s appeal and Lam’s appeal on the conspiracy to pervert the course of justice charge and quash their convictions. I would just like to say a few words on the circumstances in which legal practitioners may approach witnesses or potential witnesses on behalf of their clients.

23.   A lawyer approaching a witness or potential witness who may be called by the other party in a court proceeding, be it civil or criminal, sometimes runs the risk of being accused of improperly influencing the witness and attempting to pervert the course of justice. Perverting the course of justice consists of “the doing of some act which has a tendency and is intended to pervert the administration of justice”. (R v Vreones [1891] 1 QB 360, Pollock B at 369. See also R v Rogerson 107 ALR 225; and R v Meissner [1994-95] 184 CLR 132.) Two matters often arise for consideration: the means employed and the intended purpose for such exercise. (See R v Kellett [1976] 1 QB 372.) Where an act (i.e. the means employed) by its nature has a manifest tendency to pervert the course of justice, the intention to commit the offence (i.e. the intended purpose) can readily be inferred; but where the tendency is not manifest, a specific intent to pervert the course of justice has to be proved (Brennan and Toohey JJ in Rogerson at 232.)

24.   As Lord Denning MR said in Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380, 1384, “There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth.” There is no general prohibition against approaching a witness or potential witness “from getting the facts from him and from calling him to give evidence” (Lord Denning, at 1384). But the cardinal principle which must always be borne in mind before attempting to approach a witness or potential witness is that such an approach must not be for an unlawful purpose and unlawful means must not be employed. Improper or unlawful means include bribes, the use of force, improper pressure or threat. (See e.g. R v Kellett [1976] 1 QB 372, Connolly v Dale [1996] QB 120.) Such acts would have the tendency and effect of improperly influencing the administration of justice and this is so even if it is done for a lawful purpose. Seeking to persuade a witness to give false evidence, or to dissuade a witness from telling the truth would be an unlawful purpose.

25.   What amounts to lawful or unlawful purpose is less than certain and clearly depends very much on the circumstances of each case.  Seeking to persuade a witness to give false evidence, or to dissuade a witness from telling the truth has been regarded as unlawful purpose thus constituting the offence of perverting the course of justice (R v Kellett, Stephenson LJ at 384).  On the other hand, provided that they are not done with improper or unlawful means, the following acts have been regarded as pursuing a lawful purpose in the circumstances in which these cases were decided :  

(a) Interviewing and taking a statement from a witness (Lord Denning in Harmony Shipping Co SA v Saudi Europe Line Ltd, at 1385; The Hong Kong Solicitors’ Guide to Professional Conduct, principle 10.12);

(b)    ascertaining what he has to say on certain issues involved in the case (R v Bishop of Lincoln (1637) 3 State Trials 770, 802; cited with approval in R v Kellett [1976] 1 QB 372) ;

(c)    advising him that he is under no obligation to agree to be interviewed (Kwan Fung Kam v Attorney General [1990] 2 HKC 577, at 578); or

(d)    trying to dissuade him from giving false evidence by reasoned argument supported by material facts and documents, provided that he is given a free and voluntary choice to do as he wishes, R v Kellett [1976] 1 QB 372; R v Taffs [1991] 1 NZLR 69, Cooke P at 72; R v Meissner [1994 – 95] 184 CLR 132, Brennan, Toohey and McHugh JJ at 143)

26.  Sometimes, what amounts to “dissuading a witness to tell the truth” or “ascertaining what a witness has to say to the issues” or “reasoned argument” can be quite controversial.  What is permissible in one case may be considered a perversion of the course of justice in another.  Care must always be exercised when making an approach to a witness or potential witness who may be called by the other party to the curial process.

27.  Where a witness or potential witness is within the Witness Protection Programme, then under s.17 of the Witness Protection Ordinance, the law enforcement agency concerned cannot, without lawful authority or reasonable excuse, disclose the identity or location of the witness and it may be difficult for a lawyer to approach that witness on behalf of his client for the purposes listed above.  In such a case, if it is considered that the defence may be hampered without such a witness and that there is a real risk that his client may not receive a fair trial, the approving authority can be approached for some suitable arrangements so as to ensure the protection of the witness’ security on the one hand and the accused’s right to a fair trial on the other, and failing which the trial court can be asked to give appropriate directions.

The 2^nd charge - perjury

28.   I agree with the judgment of Mr Justice Bokhary PJ. For the reasons given by him, I would also allow the Chui’s appeal on the perjury charge and quash her conviction.

The 4^th and 5^th charges - attempting to commit s.17 offence

29.  I agree with the judgment of Mr Justice Gleeson NPJ. For the reasons given by him, I agree that the prosecution’s appeal on the 4^th and 5^th charges should be dismissed. I would also agree that in the circumstances of this case, no re-trial should be ordered on these charges.

30.  I would like to say a few words on the submissions made by Mr Wilson QC for the prosecution regarding the ingredients of the s.17 offence and the attempt to commit such an offence.

31.  The purpose of the Witness Protection Ordinance is “to provide for a witness protection programme to protect witnesses who may place themselves and their families in jeopardy by agreeing to give evidence in legal proceedings”. (See Explanatory Memorandum to the Ordinance.) It makes provisions for various protective measures for a witness (or potential witness) under this programme and these include the protection under s.17. This section is an integral part of the programme because any leakage of the identity or location of such witness will not only compromise his security or the security of his family but will also frustrate the whole programme and undermine the administration of justice. On the other hand, s.17 is obviously not aimed at just any disclosure of information concerning the identity or location of someone who may be a witness in a court proceeding. The section is aimed at prohibiting disclosure of information relating to a witness under the programme. However, it would be quite unfair to fix criminal liability on a person for disclosing information about the identity or location of another person who happens to be within the programme when he does not even know that that other person is within this programme. I do not agree that this is the intended ambit of s.17.

32.  In my view, for an offence to be committed under s.17, the prosecution must show: (i) the accused has made a disclosure; (ii) the information he has disclosed relates to the identity or location of another person; (iii) that other person is a witness within the programme; (iv) the accused was, at the time of his disclosure, aware that that other person is within the witness protection programme; and (v) there is no lawful authority or reasonable excuse for making the disclosure. It is arguable that if he has reasons to suspect or believe that that other person is within the programme but did not bother to find out whether this is in fact the case and yet makes the disclosure notwithstanding (that is, he is reckless about the true state of affairs), he may still be caught by the section. But this does not arise in the present case and it is not necessary to decide on this point.

33.  In the case of an attempt, s.159G of the Crimes Ordinance, Cap 200 is relevant. The present case is not concerned with s.159G(1), that is, where the accused has done acts more than merely preparatory to the commission of the offence but has not completed it (e.g. he has sent out a letter containing the relevant information but the letter has gone astray and was never seen by anybody). We are here concerned with s.159G(2), where the accused has done all the acts required to commit the offence but one or more of the facts which are the ingredients of the offence are absent. It would not be appropriate to find out whether the accused knew the existence of the relevant fact or facts since such fact or facts did not exist. And s.159G(4) then becomes relevant. What the prosecution must prove in such a case is that at the time he did the act (in the case of a s.17 offence, making the disclosure), the accused believed in the existence of the facts which are absent (that the person in question was in fact a participant in the programme). For it is with such belief that the accused made the disclosure and that makes his conduct culpable as an attempt.

34.  I am thus unable to accept the submission that it is not necessary to prove knowledge (in the case of the substantive offence) or belief (in the case of an attempt to commit the offence) on the part of the accused that the person concerned is a participant in the programme.

Mr Justice Ribeiro PJ:

35.  The three appeals before the Court have been heard together and derive from the same series of acts.  They involve two appeals against conviction for conspiracy to pervert the course of justice relating to an alleged attempt to interfere with a potential witness who was in contact with the Independent Commission Against Corruption (“ICAC”) in connexion with their investigation of suspected offences.  They also concern an alleged attempt to commit an offence against section 17 of the Witness Protection Ordinance (“WPO”)[1] which punishes the disclosure, without lawful authority or reasonable excuse, of the identity of a person who is a participant in the witness protection programme (“WPP”) established pursuant to the WPO.   Additionally, they involve an appeal against conviction for attempted perjury contrary to sections 31 and 159G of the Crimes Ordinance.[2] 

36.  In this judgment, I confine myself to addressing issues which concern the conspiracy offence. 

A.  The principal actors

37.  On 9 July 2004, the ICAC arrested nine persons in connection with suspected offences concerning a listed company called Semtech International Holdings Limited (“Semtech”).  Those arrested included Derek Wong Chong-kwong (“Derek Wong”),[3] Semtech’s Chairman, and Becky Wong Pui-see (“Becky Wong”), his secretary.

38.  When Derek Wong was released on bail on 11 July, he was concerned by the fact that Becky Wong had apparently not emerged from the ICAC’s custody.  He was then being advised by Frankie Chung Cheong-kuen (“Chung”) who was employed by Messrs C K Mok & Co (“C K Mok”), a firm of solicitors, as chief litigation clerk.  With Chung’s assistance, Derek Wong set in motion a course of events aimed at establishing contact with Becky Wong which, according to the prosecution, constituted a conspiracy to pervert the course of justice with certain other persons who became involved.  

39.  One such person was Mandy Chui Man-si (“Chui”), described at the trial as Derek Wong’s girlfriend.  She and Becky Wong were close friends, treating each other “like sisters”.   Chui was the owner of a beauty salon funded and underwritten by Derek Wong and held by a company called Ever Brilliant Consultants Ltd (“Ever Brilliant”), in which Becky Wong was given an informal 30% interest.   Chui asserted that after several telephone conversations with Becky Wong on 11 and 12 July, she gained the impression that Becky Wong was in the ICAC’s custody and did not want to be where she was.  On 13 July, Chui met up with Derek Wong[4] in the offices of Andrew Lam Ping-cheung (“Lam”), a solicitor.  Lam was retained to act for Derek Wong and introduced Chui to Richard Clement (“Clement”), a partner in the solicitors’ firm of Massie & Clement (“M&C”), to act for her in connection with her concerns regarding the welfare of Becky Wong.  The prosecution’s case is that Lam was party to the conspiracy.  However, it has always been accepted that Clement was not implicated and acted independently as a solicitor. 

40.  After giving instructions to Clement, Chui rejoined Lam and Derek Wong who had gone to the Foreign Correspondents’ Club (“FCC”) where, coincidentally, Kevin Barry Egan (“Egan”), a barrister, was present.  In circumstances discussed below, Egan acquired instructions from M&C on behalf of Chui to visit the ICAC’s headquarters with a view to seeing Becky Wong.  He made the visit but did not succeed in seeing her.  She had meanwhile, earlier in the day, signed a memorandum of understanding (“MOU”) indicating her willingness to enter the WPP established under the WPO.

41.  When a further attempt by Egan (this time on the instructions of C K Mok) to see her on the following day (14 July) also failed, he launched an application for a writ of habeas corpus directed against the Commissioner of the ICAC.  This was done on the instructions of M&C, supported by an affirmation made by Chung.   An affirmation made by Chui was subsequently also filed in support.  Egan was alleged to have been a party to the conspiracy and to have performed the acts mentioned above in its furtherance.

42.  The habeas corpus application led to several court hearings and was finally determined by Hartmann J (as Hartmann JA then was) on 16 July when his Lordship held that he was satisfied that Becky Wong was not unlawfully detained. 

B.  The conspiracy charge

43.  Derek Wong, Chui, Lam and Egan were charged with conspiracy to pervert the course of justice and were named as the 1^st to 4^th defendants respectively at the trial.  It was also the prosecution’s case, and the Judge so found,[5] that Chung was a party to the conspiracy.  However, he testified as a prosecution witness under an immunity.  The conspiracy charge against the four defendants stated as follows:-

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

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

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

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

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

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

C.  The proceedings below and leave to appeal

44.  The defendants stood trial in the District Court before H H Judge Fung CDJ (as Fung J then was).[6]  After a trial lasting 55 days, Derek Wong, Chui and Lam were convicted of conspiracy to pervert the course of justice and received prison sentences of 3 years, 2 ½ years and 4 years respectively.  Egan was acquitted of conspiracy but convicted on the two charges of attempted disclosure in breach of section 17.  He was sentenced to imprisonment for 2 ½ years concurrently on each charge.  Chui was also convicted on the attempted perjury charge, receiving a sentence of 12 months’ imprisonment to be served concurrently with her sentence for conspiracy. 

45.  The defendants appealed to the Court of Appeal against their convictions and sentences.  The prosecution appealed by way of case stated against Egan’s acquittal on the conspiracy charge and applied for a review of the sentences passed on Derek Wong and Lam as manifestly inadequate.  However, before the hearing, Derek Wong absconded. 

46.  On 12 February 2009, the Court of Appeal[7]:-

(a)  unanimously dismissed the appeals by Derek Wong and Chui against conviction for conspiracy to pervert the course of justice;

(b) unanimously dismissed Chui’s appeal against conviction for attempted perjury;

(c) dismissed Lam’s appeal against conviction for conspiracy to pervert the course of justice by a majority;[8]

(d) dismissed the prosecution’s appeal by way of case stated against Egan’s acquittal of conspiracy by a majority;[9] and

(e)  allowed Egan’s appeal against his conviction for attempted disclosure in breach of section 17 by a majority.[10]

47.  In relation to sentence, the Court of Appeal[11]:-

(a)  unanimously dismissed Derek Wong’s appeal against sentence and, by a majority,[12] allowed the prosecution’s application for review, substituting a sentence of 5 years’ imprisonment for the sentence of 3 years’ imprisonment passed by the Judge;

(b) unanimously dismissed Chui’s appeal against her sentence for conspiracy (no appeal having been lodged against her sentence for attempted perjury);

(c) unanimously dismissed Lam’s appeal against sentence and, by a majority,[13] allowed the prosecution’s application for review, substituting a sentence of 6 years’ imprisonment for the sentence of 4 years’ imprisonment passed by the Judge.

48.  Chui and Lam sought leave to appeal to this Court against the upholding of their convictions by the Court of Appeal and the prosecution sought leave to appeal against the Court of Appeal’s quashing of Egan’s conviction for attempted disclosure.  Chui also sought leave to appeal against her conviction for attempted perjury.  Lam has separately sought leave to appeal against sentence.[14]

49.  By its Determination dated 14 May 2009[15] with respect to the applications concerning conspiracy, the Appeal Committee:-

(a)  granted Chui leave to appeal under section 32(2) of the Court’s statute[16] in respect of her conviction for conspiracy, certifying as points of law of great and general importance, the following questions:

“1.   Where it is alleged that there is an agreement to influence a prospective witness against co-operating with an investigative authority, can such an agreement constitute the offence of conspiracy to pervert the course of justice where the means to be used do not amount to the use of a threat or of an inducement or of a promise of an inducement?

2.    If the answer to Question 1 above is ‘yes’, then

(a)  what are the characteristics of the ‘means’ which it is incumbent on the prosecution to prove; and

(b) is the offence established in the absence of proof that the ‘means’ used either overbore or were intended to overbear the free choice of the prospective witness to co-operate with the investigative authority?

3. Having regard to the answers in Questions 1 and 2, can the institution of habeas corpus proceedings (in respect of a prospective witness understood to be in the custody of the investigative authority and in order for the Court to enquire into the voluntariness or otherwise of the witness’s position) constitute the requisite ‘means’ of the offence?”

(b) granted Lam leave to appeal in connexion with his conviction for conspiracy to pervert the course of justice, certifying as a point of law of great and general importance the following question:

“Whether it is necessary or sufficient to constitute the offence of perverting the course of justice in relation to acts connected with legal professional duties that :-

a) the actions may have the tendency to influence a potential witness against the investigating authorities or to hinder access to information;

b) those actions are intended to cause such influence or hindrance; or

c) the actions are performed by a lawyer on instructions where he knows or believes that the instructions he received are false;”

(c) granted Lam leave to appeal on the substantial and grave injustice limb in relation to certain matters discussed below, including the manner in which the majority of the Court of Appeal concluded that necessary knowledge (or belief) on Lam’s part could be inferred; the majority’s approach to the question of conflict of interest in that context; and its treatment of the evidence of a key prosecution witness.

D.  The course of events

50.  The events bearing on the conspiracy charge span a seven-day period which began on Saturday 10 July 2004 after the arrest of Derek Wong and Becky Wong.[17]  The account which follows is largely drawn from the Judge’s Reasons for Verdict.  At the trial, Becky Wong, Chung and Clement gave evidence along with various ICAC officers and other prosecution witnesses.  Of the four defendants, only Egan gave evidence.

D.1  Saturday 10 July

51.  On the day following her arrest, Becky Wong gave two “non-prejudicial statements” to the ICAC.  Such statements are given on the basis that they cannot be used against the maker.  They contained material which incriminated Derek Wong. 

52.  That Saturday was also when Chung first came onto the scene.  He had been contacted by Derek Wong’s wife and consequently went to visit Derek Wong at the ICAC’s headquarters, accompanied by a barrister at about 9.00 am.  He saw Derek Wong at about 6.00 pm.

53.  Meanwhile, Becky Wong was released on bail at about 5.00 pm.  She stated that she feared for her own safety since she had given the ICAC incriminating information about possibly dangerous persons and agreed to be escorted by two ICAC officers who would stay overnight with her at her home.  When her mobile phone was returned to her, she mentioned to one of them that there were missed calls, including calls from Chui.

D.2  Sunday 11 July

54.  While at her home accompanied by the two ICAC officers, Becky Wong received a call from Chui at about 1.15 pm.  Becky Wong moved away from the officers so that she would not be overheard.  The Judge found that:

“During the phone conversation, Becky Wong told Chui it was not convenient to talk.  She sensed that Chui knew she had been arrested.  Chui said she was worried about Derek Wong and Becky Wong.  Chui said Derek Wong was not yet given bail, and she could not find him.  Chui asked Becky Wong about her well-being and Becky Wong said she was safe and sound “平安無事” (literally meaning ‘safe and no incident’).”[18] 

I shall call this “the Sunday phone call”.

55.  Becky Wong was taken to an ICAC safe house at about 6.15 pm and advised to avoid contact with others involved in the case.   She was given another SIM card (“the ICAC SIM card”) for her phone, but was allowed to retain her own SIM card and to arrange for calls to be forwarded to the ICAC SIM card number.  At 7.29 pm, her phone rang and she and the ICAC officers saw from the caller display function that it was a call from Derek Wong.  Becky Wong did not answer it and cancelled the call forwarding setting.  She later voluntarily handed her old SIM card over to the ICAC.  That night was spent at the safe house.

56.  Meanwhile, Derek Wong had been spending most of the day with Chung.  In the morning, when being interviewed by the ICAC, he was accompanied by Chung and a barrister.  Chung subsequently contacted Derek Wong’s wife to raise the bail money and Derek Wong was eventually released on bail at about 4.00 pm.  He and Chung then had a meeting at Chung’s office from about 6.00 pm to 8.00 pm where, as the Judge found:

“Derek Wong told Chung that his 2 employees, Becky Wong and William Lau, were arrested by the ICAC and he was very worried about them.  Derek Wong asked Chung to see them.  Chung said he declined it, and suggested Derek Wong to contact the family members of Becky Wong.  Derek Wong said Becky Wong’s family members were not in Hong Kong.  Chung said he would ask another solicitor, Mr Peter Lai, to go and see William Lau and Becky Wong.”[19]

As we have seen, Derek Wong evidently tried to contact Becky Wong by phone at 7.29 pm, in the course of that meeting. 

D.3  Monday 12 July

57.  Between 7.00 am and 8.00 am, Becky Wong was taken to Semtech’s offices to collect some of her things.  While she was there, she picked up a spare stored value SIM card (“the Semtech SIM card”) without the knowledge of the ICAC officers who were waiting outside in the lift lobby.  Her explanation, recorded by the Judge was that:

“She wanted to call Chui to find out about Chui and Derek Wong.  She had concern for Chui as a friend.  She felt the ICAC SIM card might be tapped, so she would use the Semtech SIM card instead.  She said she did not tell the ICAC officers about this Semtech SIM card because it never crossed her mind to do so.”[20]

58.  When they got back to the safe house, Becky Wong went into the toilet and, using the Semtech SIM card, called Chui.  Telephone records show that between 10.30 and 10.51 am, there were nine phone calls between the two women.  Becky Wong’s evidence was that they had two main conversations.  The first (which I shall call the “1st Monday conversation”), lasted almost six minutes and was summarised by the Judge as follows:

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

Becky Wong told Chui to tell Derek Wong not to use his 2 mobile numbers starting with ‘6’ and ‘9’ as the ICAC had known about them.”[21]

59.  Referring to the second conversation (“the 2nd Monday conversation”), the Judge stated:

“... Becky Wong said the purpose of this call was to ask Chui to say sorry to the boss, that is, Derek Wong, on her behalf.  Chui then asked her what have she said to them.  Becky Wong told Chui that she did not say anything that Derek Wong could not explain himself away, except about market manipulation and illegal money, as she felt the ICAC had tapped the phones and there was no way but to say it.  Becky Wong said she did not mean to tell Chui what she had told the ICAC, but as Chui had asked her, she told Chui.  Becky Wong said at that time, she had not given it the thought whether it was unwise to do so.

Becky Wong said she did not hang up hurriedly.  But after cross-examination on her witness statement, she agreed to the suggestion.”[22]

After having those conversations, Becky Wong re-inserted the ICAC SIM card and hid the Semtech SIM card in the phone.

60.  At about 2.30 pm, Derek Wong went to Chung’s office and told him that the solicitor Peter Lai had been unable to reach Becky Wong.  As the Judge put it: “Derek Wong said Becky Wong was a fragile person, and he was worried that she might make admissions against herself for things she had not done.”[23]  Chung suggested that since she “had been with the ICAC for 48 hours, ... one possibility was that Becky Wong might be in the process of becoming a prosecution witness”[24] but Derek Wong said he did not believe she would do so.  He also indicated that he intended to instruct lawyers for his defence, mentioning Lam, among others.

61.  They met again between 4.30 pm and 6.00 pm.  Just prior to that meeting, telephone records indicate that while Derek Wong was speaking to Chui (who did not attend either of the meetings with Chung), the latter, using a separate phone, sent an SMS message to Becky Wong in the following terms:

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

The Judge inferred that this message had been sent on Derek Wong’s instructions.  It was not seen by Becky Wong until about midnight on the following day.

62.  Earlier, at about 4.00 pm, the ICAC’s Witness Security Panel approved Becky Wong’s induction into the WPP.  Its risk assessment stated:

“Becky is a key witness who can give evidence against [Derek Wong] and his associates.  Soon after Wong was released on bail, he had asked his girlfriend Mandy to approach Becky.”[25]

D.4  Tuesday 13 July

63.  At about 2.30 pm, Becky Wong signed a memorandum of understanding with the ICAC indicating her willingness to enter the WPP.  By section 6(3) of the WPO, she would as a matter of law become included in the witness protection programme upon the approving authority signing that document.  As it happens, that did not occur until the morning of Friday,16 July when Gilbert Chan, Director of Operations at the ICAC, signed it as the approving authority.

64.  The rest of the Tuesday unfolded in three phases and saw Lam and Egan enter the picture.  The first phase involved Lam, having taken up a retainer for Derek Wong, introducing Chui to Clement as a client.

65.  Lam met Derek Wong at Lam’s office at around 4.12 pm.[26]  They had not previously met.  They were joined by Chui at about 5.39 pm.  She also had not previously met Lam.  Then at 5.56 pm, Derek Wong, Chui and Lam left Lam’s office and went over to the offices of M&C where Lam introduced Chui to Clement.  At around 6.08 pm Derek Wong and Lam left M&C’s premises and went to the FCC, leaving Chui to give instructions to Clement.

66.  Clement explained in evidence that Lam had referred Chui to him as a client because of a conflict of interest.  Lam had earlier contacted John Massie (“Massie”), Clement’s partner, but as Massie was just about to go on a month’s leave away from Hong Kong, he arranged for Clement to deal with the matter, handing him a file note of what was apparently a telephone conversation with Lam. 

67.  Chui was with Clement between about 6.08 pm and 6.33 pm, giving him instructions through a trainee solicitor, Raymond Lam Yat-wah (“Raymond Lam”), who was interpreting between Chinese and English.  The Judge summarises Clement’s evidence of what took place as follows:

“Mr Clement said Chui told him through Raymond Lam that her business partner and friend Becky Wong was arrested on Friday, and Chui had a number of calls with Becky Wong on Sunday morning (that is, 11 July) and Monday morning (that is, 12 July) and Becky Wong spoke in a quiet voice.  Chui believed Becky Wong was in the custody of the ICAC, and Chui was concerned as she felt Becky Wong did not want to be where she was.  Chui asked him to gain access to Becky Wong, and if that proved impossible, to do whatever necessary to get her released from the ICAC, and if court action were involved, so be it.  Mr Clement could not remember whether the subject of court proceedings was first raised by Chui or himself, but he was pretty sure that there were instructions from Chui to initiate court proceedings if the attempt to see Becky Wong at the ICAC failed.”[27]

68.  Clement testified that the file note which Massie had handed to him had provided the background for his interview with Chui.  Since Massie did not give evidence, that document was not in evidence save to explain why Clement had himself used the term “protective custody”.  However, the contents of the file note have been referred to on both sides and a copy was handed up to the Court by Ms Clare Montgomery QC[28] without objection from the other parties.  It is a handwritten note stating:

“Secretary to chairman.  Semtech.  No known relatives.  Put under protection.  Write to ICAC.  Mandy Chui.  Wong Pui see Becky.”

69.  After taking instructions, Clement told Chui through Raymond Lam that he would draft a letter to send to the ICAC on the next day to request access to Becky Wong.  Chui then left to rejoin Derek Wong and Lam at the FCC at around 6.33 pm.

70.  The draft letter which Clement then prepared, having stated that the firm had been approached by Chui, “a friend” of Becky Wong, materially continued as follows:-

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

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

71.  The Judge noted Clement’s explanation of his use of the words “protective custody”:

“Mr Clement wrote down ‘protective custody’ (in inverted commas) in his notes.  He thought if Becky Wong were arrested on Friday (that is, 9 July), and there did not seem to be any charge by Tuesday (that is, 13 July), and if she were still with the ICAC, it would have to be protective custody.  He was also influenced by the words ‘put under protection’ in Massie’s notes.  However at that stage, Mr Clement thought Becky Wong had probably been released and no longer with the ICAC but she just did not want to see anybody.  Hence, he put ‘protective custody’ in inverted commas.”[29]

72.  The second phase of the Tuesday events involved Egan entering the picture.  Having left the nearby offices of M&C at 6.33 pm, Chui must have arrived at the FCC some five minutes or so later.  Egan and Lam were close friends and professional colleagues, with something like half of Egan’s briefs coming from Lam.  At some point, Egan joined Lam’s party which then included Derek Wong and Chui.  Egan was obviously told about the Becky Wong situation.  He was also told that Chui had seen Clement who was proposing to send a letter to the ICAC on the following day seeking access to Becky Wong.

73.  At 6.51 pm, Clement who was in the MTR on his way home, received a call from Egan.  Referring to Clement’s evidence, the Judge stated:

“Clement understood Egan to be saying that Lam was a bit agitated, as apparently, Chui’s girlfriend was held by the ICAC, and M&C should be down there hammering on the door of the ICAC, but all he proposed to do was to just write a letter.  Clement took it that his initial approach to write a letter was disagreed by Lam.  Egan told Clement that he had instructions from Chui to arrange for a legal visit to the ICAC that night to find out what was happening to Becky Wong.”[30]

74.  Clement then arranged for Raymond Lam to accompany Egan on a visit to the ICAC after a letter of instruction to that effect was signed by Chui.  They left the FCC at some time after 7.00 pm and were delivered to the ICAC’s offices in Derek Wong’s car.  Derek Wong himself went to Chung’s office where they met for some 45 minutes.  Derek Wong told Chung that C K Mok should act for Becky Wong. 

75.  The third phase involved Egan’s ICAC visit on that Tuesday evening.  He and Raymond Lam arrived at the ICAC at about 7.45 pm and asked to see Becky Wong (who, as mentioned above, had signed that afternoon the MOU for entry into the WPP).  At 7.51 pm, Egan received a call in the presence of two ICAC officers, including Daphne Lim, a Senior Investigator (“Lim”).  Answering the call, Egan stated: “Andrew, I’m talking to the ICAC officers.  Don’t call me.  I’ll call you.”  After hanging up, Egan said, “It’s Andrew Lam Ping-cheung.  He is not patient.”

76.  Lim’s evidence was that:

“... Egan requested immediate access to Becky Wong.  Egan said he was acting on the instructions of Chui, and Chui and Becky Wong were partners in a beauty salon with Becky Wong owning 30% shares, and Chui was not able to reach Becky Wong.  Egan said Becky Wong was arrested by the ICAC and she had been detained for over 48 hours.  If he were not given immediate access to Becky Wong, he would make a report to the police and to apply to the High Court for habeas corpus.”[31]

77.  After consulting her superiors, Lim told Egan that Becky Wong was not in the ICAC and that he could take whatever action he liked.  Egan replied:

“Of course Becky Wong is not here.  She is in some other place.  You have placed her in a safe house.”[32]

Becky Wong was not told that a lawyer was asking to see her.

78.  Egan then wrote out a letter of complaint addressed to the ICAC’s Head of Operations, making a formal complaint against Lim and materially stating as follows:

“...I have requested access to the above-named [Becky Wong] who is being ‘detained” by you in respect of the ‘SEMTECH’ Operation, supposedly on a voluntary basis.

I have firm instructions however from her business partner, Ms CHUI Man-si, Mandy, that Ms WONG is being held against her will and wishes to be released immediately.

My firm instructions are that Ms WONG spoke to Ms CHUI on Sunday and informed her as follows:

(a) that she (Ms WONG) attempted to use her mobile phone to contact Ms CHUI on Sunday last (11 JUL 04) but when the attending ICAC officer saw the call destination he/she seized the phone and removed the ‘SIM’ card;

(b)  unbeknown to the ICAC, Ms Wong had a spare ‘SIM’ card on her person which she inserted into the phone and used to contact Ms CHUI, speaking in a whispering tone, from a toilet;

(c)  Ms WONG was adamant that she was being detained against her will and that she wished to leave ‘protective custody’;

(d)  Ms WONG told Ms CHUI that she would contact her again on Monday.

Since Ms CHUI has heard nothing further from Ms WONG, she now instructs me to:-

(a) make a formal complaint to the HKPF that the ICAC is holding Ms WONG against her will (false imprisonment); and

(b)  to make an application to a High Court Judge for a writ of habeas corpus.

I will make one last attempt to negotiate the solution of this problem with your officers.  Failing that I shall be left with no choice than to pursue (1) and (2) above.

I would appreciate your assistance in solving this problem amicably and sensibly...”

79.  Egan and Raymond Lam then left the ICAC and went to the Central Police Station where they made a report stating that Egan suspected that the ICAC was unlawfully detaining Becky Wong.  He also handed in a copy of the letter of complaint.  Egan also made several calls which he told the police sergeant concerned were “to people of the South China Morning Post”.  Telephone records also show that Lam was in touch with Carmen Hsu, a reporter with the Sing Tao Daily.  Press enquiries were received at the ICAC’s Information Unit about the police report.

D.5  Wednesday 14 July

80.  The events of the Wednesday were overshadowed by the activities of Chung.  Just after midnight on Tuesday 13 July, Becky Wong went into the toilet at the safe house and re-inserted the Semtech SIM card into her phone.  She saw the SMS message from Chui sent on the afternoon of Monday 12 July asking her to get in touch with Chung.  She did so at 12.44 am, saying that Chui had asked her to call.  The Judge records her account of that phone call as follows:

“Becky Wong said lawyer Chung told her to say she knew him.  In fact, she did not know any lawyer Chung but she did not respond.  She said lawyer Chung said she had the right to approach a lawyer.  He told her to ring him during office hours the next day.  He suggested her to make a request to the ICAC to call him, and told her to pass this telephone number to the ICAC and she would be able to contact him.”[33]

She is also recorded as having added:

“She never told lawyer Chung she was kept by the ICAC.  She never told him she wanted any help or lawyer.  She never gave him any legal instruction nor asked him to apply for habeas corpus on her behalf.  She never wanted to leave the ICAC.  She never rang Lawyer Chung again.”[34]

81.  After speaking to Becky Wong, Chung immediately called Derek Wong and met him shortly after 1.00 am.  Later, at 9.13 am that morning, Derek Wong asked Chung to go with Egan to visit Becky Wong at the ICAC.  Chung then called Egan and told him “that Becky Wong had contacted him and she wanted to get away from the ICAC”.[35]

82.  Egan rang Clement telling him that Chung had spoken to Becky Wong who said she wanted to see him.  He explained that he would be visiting the ICAC on the instructions of C K Mok and sought confirmation that M&C still had instructions to proceed on a habeas corpus application if required.[36]  Clement said in evidence that whereas he had previously thought Chui’s instructions equivocal, “now Becky Wong had told Chung that she wanted to see him”,[37] he thought M&C’s role was at an end.

83.  Just before Egan’s call, Raymond Lam had shown Clement a copy of Egan’s letter of complaint.  Clement indicated that it was the first time he had heard of the instructions referred to in the letter.[38] 

84.  At 11.10 am, Egan, accompanied by Chung, went to the ICAC’s premises.  He was again told that Becky Wong was not there and that Egan could do whatever he liked.  Again, Becky Wong was not told that a lawyer was asking to see her.  Chung was incidentally recognized by ICAC officers as the solicitor’s clerk in the firm acting for Derek Wong.

85.  At 12.07 pm, Egan telephoned Bernard Ryan, Senior Assistant Director of Public Prosecutions at the Department of Justice (“Ryan”).    Egan complained about being “given the run around” by the ICAC and told Ryan that “all he wanted was access to Becky Wong to ascertain her status”.[39]  After that call, Chung told Egan “that Becky Wong was previously known to him, and she wanted to get away from the ICAC”, which he later admitted was a lie.  It is clear that it was a lie which was conveyed to many of the persons involved.

86.  Following Egan’s call, Ryan was briefed by Rebecca Li, Assistant Director (“Li”), and Ricky Chu, Principal Investigator (“Chu”), at the ICAC.   Chu, not aware that the MOU had not yet been signed by the approving authority, told Ryan that Becky Wong was in the WPP and stressed the secrecy involved. 

87.  Meanwhile, Becky Wong had disclosed to Dale Ko, a Senior Investigator (“Ko”), that she had contacted Chung.  She then gave a statement to the ICAC denying that she had asked anyone to apply for habeas corpus or for help from a lawyer.  She said that she had rung Chui and told her that she was safe and sound.  Becky Wong said in evidence that when she heard that someone had applied for habeas corpus on her behalf, she “was upset and cried”.  “In her mind she queried whether she had created all the trouble.  She thought of withdrawing from the WPP, but she did not tell the ICAC.”[40]

88.  As it was clear that the ICAC was not going to provide access to Becky Wong – a fact confirmed by Ryan to Egan after his meeting with Li and Chu – preparations were underway for the habeas corpus application.  M&C and C K Mok were being funded by Derek Wong who reimbursed Chui for the cheques she had drew on Ever Brilliant in favour of the lawyers. 

89.  That afternoon, Clement prepared Chung’s affirmation on the latter’s instructions.  That affirmation materially provided as follows:

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

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

90.  After exhibiting Egan’s letter of complaint and complaining about being refused access to Becky Wong, Chung continued:

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

91.  At the trial, Chung admitted that the matters stated in the words I have italicised were untrue.[41]

92.  It was on the strength of that affirmation that, at 5.30 pm that day, Egan opened an ex parte application for habeas corpus in open court before Yam J.  Egan submitted that while the ICAC alleged that Becky Wong was voluntarily staying with them, she had spoke to Chui “her business partner” on the Sunday in the circumstances he had set out in his letter of complaint.  Referring to the affirmation, Egan said that Becky Wong had told Chung “she wanted access to a lawyer, ... she sounded frightened and she was being kept by ICAC people, unlawfully kept.”[42] Egan told the Yam J that:

“All he wanted was, with instructing solicitors, access to Becky Wong so that he could say to her, in the presence of ICAC officer, whether she wanted to stay with the ICAC or whether she wished to accompany him to leave the ICAC.  If she wanted to stay with the ICAC, that was the end of it; if she elected to come with him, that was also the end of it.”[43]

93.  Yam J adjourned the application for it to proceed inter partes on the following day.  Chui had not been present in court.  That evening, Clement and Egan served the papers on Ryan.  In Ryan’s presence, Egan received a phone call which he indicated to Ryan was from Lam.

94.  That evening, Chui sent an SMS message to Becky Wong saying: “be strong, lawyer will save you”.  Becky Wong did not see it until some time later.

95.  Apart from several phone calls to Egan and to Derek Wong, Lam played no part in these Wednesday events.  He had been engaged between 9.35 am and 4.20 pm as an advocate in a different case in the District Court.

D.6  Thursday, 15 July

96.  Thursday was dominated by the habeas corpus proceedings.  The inter partes hearing before Yam J took place in camera between 10.00 am and 11.23 am.  Ryan appeared and informed the Court that Becky Wong had agreed to be a witness for the ICAC, that she was a participant in the WPP and that she was not unlawfully detained.  In answer to Yam J suggesting that it might be best for Becky Wong herself to confirm this to the court, Ryan expressed concern that she might be subjected to people “eyeballing her”, meaning presumably, seeking to intimidate her. 

97.  Yam J nevertheless decided to sign the writ of habeas corpus on the basis that there were differences between what Ryan was submitting and what Chung was saying on affirmation.  He directed that Becky Wong should be brought up to court “through the CSD (Correctional Services Department) channel without being exposed to any member of the public”; that the hearing could be done using a video link if she should request this; and that there should be no communication of the order made to any other person, especially members of the press, with undertakings required of all persons present to such effect.  The undertakings were duly given.

98.  Egan said at the hearing:

“...that he accepted that it was desirable that the matter be heard in chambers and Becky Wong be interviewed by His Lordship and not by counsel.  If having been fully apprised of her rights, she said to His Lordship that she wanted to remain in the WPP and wanted to remain with the ICAC, he would then withdraw the proceedings.”[44]

99.  The ICAC decided to appeal and sought a stay of Yam J’s order from the Court of Appeal.[45]  The hearing took place in camera with Ryan and Egan both appearing.  Each outlined his respective case.  When Egan was asked why Chui had not put in any evidence, he said that this was because they had “a later piece of information from the solicitor’s clerk Frankie Chung”.[46]  The Court of Appeal was critical of the absence of evidence on the part of the ICAC and agreed to adjourn the matter only until 4.30 pm to enable evidence to be filed.  The matter would then be restored for hearing before Hartmann J.

100.  In the interim, Ryan drafted a return to the writ of habeas corpus and an affirmation to be made by Eric Yang Yan-tak (“Yang”), Principal Investigator and officer in charge of the Witness Protection Unit.  These documents certified that Becky Wong was in the WPP; that she was free to come and go and to communicate with anyone as she pleased; and that she was therefore not in detention or under the ICAC’s custody or control.  Yang was unaware that at that stage the MOU had not yet been signed by the approving authority.

101.  At the hearing before Hartmann J, Ryan handed up the nil return and the draft affirmation and Egan read out Chung’s affirmation and his own letter of complaint.  Hartmann J was still concerned at the state of the ICAC’s evidence and adjourned for the matter to be dealt with substantively at 3.00 pm on the following day.

102.  At the Judge’s request, Chui was to provide an affirmation and she spent just over an hour at M&C’s offices when one was prepared for her by Raymond Lam.  I shall return to the manner in which that was done.

103.  That evening, between 7.27 pm and 9.48 pm, Chui sent four SMS messages to Becky Wong (which she did not see until later).  These stated respectively: “Judge will see u tomorrow at 3-00 pm.  Watch the news, we are saving u.  Be firm” –“If u are stressful, remember to cry” – “We are believe u.” – and – “Come out and u will be ok!”

104.  Lam had again been appearing all day in the District Court and took no part in the hearings, although he was in occasional telephone contact with Egan.  However, Lam went to lunch that day at a restaurant call “Grissini” (“the Grissini lunch”) where what was said by him was later used in evidence by the prosecution.  That lunch was with Mary Jean Reimer Lau (“Lau”), and Martin Yeung (“Yeung”).  Lau had until May 2004 been an assistant solicitor in Lam’s firm and Yeung had been a trainee solicitor there until June 2004 when he left to join the firm started by Lau.

105.  According to Lau, in the course of conversation, Lam said that he was representing a director of Semtech and criticised the ICAC for having unlawfully detained Becky Wong.  Lam said that Chung had received a phone call from Becky Wong asking for help and that Lam “had planned the action of habeas corpus” to help her and was making the application which he was confident would be successful.  Lau reported that Lam “said he would switch on all the machines against the ICAC.”[47]  Yeung gave evidence to similar effect.

D.7  Friday, 16 July

106.  At around 10.40 am, Chui returned to M&C’s offices.  Raymond Lam testified that he translated the draft affirmation for her without her raising any objection or questions.  This had taken only about five minutes.  They then went to another solicitors’ firm in the same building to have it affirmed. 

107.  Her affirmation referred to the Sunday phone call, stating that Becky Wong had “whispered ‘They are at my home’”, meaning the ICAC.  She was then said to have spoken in her normal voice saying that she could not join Chui that night.

108.  Chui’s affirmation went on to give an account of the 1^st and 2^nd Monday conversations, saying that Becky Wong “was speaking in a very faint and trembling voice” and continuing as follows:

“6.       She said she was having great difficulties in calling me because in the night before when they saw on the caller display that Mr Wong was calling her, they snatched her phone, confiscated her SIM card and refuse to let her answer that call and then only gave the phone back to her.  So she could not have made any call.  She further said that she is able to make the call to me because she insisted on the Monday morning to go back to the office of Simtech to collect her personal belongings, while she was at the office she managed to get hold of another Sim card without being noticed.  She then told me she was calling from a toilet and she did not know where she is now but she is not at home and she was making this call in secrecy.  She further said she will try to contact me in secret again that night.  Since then I have not heard from her and I have been trying to contact her since.  I have called her cell phone number and the number she gave me but to no avail.”[48]

109.  The affirmation ended with Chui stating:

“8. I believe Becky is in the custody of the ICAC although I do not know where.  I believe she has been held in excess of 48 hours and thus any restraint without her consent is unlawful.  I have not been told that she has been charged.

9. I do worry about the well being of Becky, because all her close family members are not in Hong Kong.”[49]

110.  It is relevant to note how this affirmation had been produced.  In cross-examination, Raymond Lam said that on the previous evening, he had listened to Chui’s account of her conversation with Becky Wong and had started drafting the affirmation by hand in English, which was a language that he believed Chui could not understand.  Finding this too time consuming, he jotted down the main points on another piece of paper (which was no longer available) and then let Chui go, asking her to come to the office the next morning to affirm the affirmation.  Later that night he typed the affirmation in English based on the outline he had made.[50]  He acknowledged that in doing this, he copied and pasted parts of Chung’s affirmation relating to some of the central questions of belief as to Becky Wong’s detention:

“Q: ... Then we look a paragraph 7 and Frankie and paragraph 8 and Mandy.  Paragraph 7, the second sentence, ‘I believe she is in the custody of the ICAC although I do not know where.’  Next sentence, ‘I believe that she has been held in excess of 48 hours and thus any restraint without her consent is unlawful.’  Full stop.  ‘I have not been told that she’s been charged with Mandy’s and we have not been told she’s been charged with Frankie’s.’  They’re identical, aren’t they?  So you copied that sentence from ... that paragraph 8 from Frankie’s paragraph 7.

A:  I adopted it, yes.

...

Q:  Now, it follows, doesn’t it, that Mandy, being an unlegally trained lay client, didn’t tell you what to put in the affirmation?

A:  I took instruction on the body of the instruction.

Q:   Yes.  I’ll put it specifically.  She didn’t say, ‘Put this in’, ‘put that in’ or ‘leave this out’.”

A:  Well, when I read it out to her, she had no objection.

Q:  It not quite the same.  Could you direct your mind to the question?

A:  Repeat the question again.

Q:  She didn’t say , ‘Put this in’, leave that out,’ that sort of ...

A:  Well, she’s in no position to give such an instruction.”[51]

111.  As previously noted, Chung admitted that the relevant parts of his paragraph 7, were untrue.  In relation to Raymond Lam’s use of the word “snatched”, he said he could not remember which Chinese word Chui had actually used.  She might have used “snatch”, “take” or “taken”.  Similarly, he had used the word “confiscate” to convey a sense of involuntariness, which he thought was appropriate.

112.  Becky Wong was asked to comment on Chui’s affirmation. 

(a)  She acknowledged that she did speak in a soft voice and that she had told Chui that she was calling secretly while hiding in a toilet.  While she denied speaking in a trembling voice, she did not think Chui was lying if she thought that was the case.  She also agreed that she had told Chui that she had difficulties calling her and that she was able to make the call because she had picked up the Semtech SIM card, possibly also having said that she had done so without being noticed.[52]

(b) She denied telling Chui that the ICAC had confiscated her phone or SIM card or that she did not know where she was or that she was held without her consent.  Nor did she tell Chui that she had no close family members in Hong Kong.

(c) She asserted that she had at least twice told Chui that she was safe and sound.

113.  Becky Wong also made an affirmation for the purposes of the pending habeas corpus hearing.  She stated that she had signed a MOU on 13 July and that her participation in the WPP was entirely voluntary, confirming that she was able to communicate freely with anyone she wished and that she had not sought to contact any lawyer prior to the occasion when she spoke to Chung.  She explained that she had only done this because of Chui’s text message (adding that Chui was Derek Wong’s girlfriend)  and that she had had no further contact with Chung.

114.  Just after 3.00 pm, the substantive habeas corpus hearing before Hartmann J commenced.  The ICAC was represented by Mr Gerard McCoy SC (“McCoy”) and Ryan.  McCoy attacked the applicant’s motives for seeking the writ, suggesting that “The real objective was to have her brought to court which would have, in itself, potentially compromised her personal integrity and her utility as a witness.”[53]  Egan replied that he had throughout acted on instructions.  He told the Court that Ryan had indicated to him the previous evening that Chui and Chung would be required to be present to be cross-examined on their affirmations and Egan then indicated to Ryan that he would require Becky Wong for cross-examination.  Egan added, however:

“...all he had asked over the last two days was to let her come to court and to tell his Lordship in the clearest terms so that there was absolutely no ambiguity that she was perfectly happy to be where she was.”[54]

115.  Having pointed to possible grounds for remaining in doubt as to the voluntariness of Becky Wong’s stay with the ICAC, Egan made it plain that he was not pursuing the idea of cross-examining her:

“Egan said if his Lordship was concerned that effectively the court was not being duped, then surely the way to resolve it was for him to make his two witnesses for cross-examination, and Becky Wong be produced.  He did not even need to cross-examine her.  His Lordship could ask her four or five sensible, neutral questions to ascertain whether or not she was happy and appreciated the fact that she was a free agent and could walk out of the situation anytime she liked.”[55]

116.  Having seen the evidence filed, Hartmann J ruled that he was satisfied that Becky Wong was not unlawfully detained.

D.8  Subsequent events

117.  The conclusion of the habeas corpus application on that Friday marked the end of the period in which the conspiracy was allegedly being actively pursued.  Two subsequent events were however relied on by the prosecution in evidence.  The first was the fact that on 21 July 2004, Derek Wong bought Chui a second hand Mercedes Benz car.  This, the prosecution suggested, was a reward for her participation in the conspiracy.  That, however fell away as it became clear that Derek Wong had previously given Chui a similar car and that the two of them had visited the same showroom to look at such cars in June 2004, without buying one.  It was therefore just as plausible that the car purchased on 21 July had nothing to do with the events which ended on 16 July.

118.  The second involved a dinner party at Egan’s flat held on 30 August 2004 attended by Lam and by Aaron Patrick Nattrass (“Nattrass”) who was until 3 May 2005, the Chief Managing Executive at M&C.  According to Nattrass, Lam made a number of highly self-incriminating statements during that party. 

119.  Nattrass had evidently taken a close interest in the case and had taken it upon himself to conduct a companies search on Ever Brilliant, the company holding Chui’s beauty salon.  He was also aware that Massie had received a letter from the ICAC dated 26 July 2004 making enquiries relating to possible breaches of the WPO and perverting the course of justice.

120.  Nattrass’s evidence, as summarised by the Judge,[56] was materially that:

(a)  Nattrass “had met Lam many times before and knew Lam reasonably well”;

(b) Lam asked him about the ICAC letter to Massie, criticising Massie for being weak and for cooperating with the ICAC instead of claiming legal professional privilege;

(c) Nattrass pointed to Chui having said in her Affirmation that Becky Wong had been her business partner and friend, but that the company search did not reflect that;

(d) Lam said that was a bit of a problem and that Chui “had forgotten her lines”. 

(e)  Nattrass said he was concerned about the position of M&C and Lam told him to tell Massie not to answer the ICAC’s questions and that he had to make sure Massie understood that “if Lam went down, Massie would be going down too in relation to the ICAC investigation”[57];

(f)   Nattrass annoyed Lam by putting it to him that there was a conspiracy by Lam and Derek Wong in bringing Chui to M&C to make an affirmation for the habeas corpus to say things that were either untrue or exaggerated;

(g) Lam asked him to tell Massie not to tell the ICAC that when Lam brought him the case, Lam had mentioned that Becky Wong was in protective custody.  Nattrass pointed out that Massie had made the file note indicating protective custody, to which Lam said Massie should not have done so; and

(h) He asked Lam why Chui had not mentioned in her affirmation that she was Derek Wong’s girlfriend and Lam asked Nattrass to tell Massie that “he did not have to worry because Chui had been paid and well taken care of.  The next time she reported for bail, she had been asked to shut up and say nothing”.

121.  Nattrass’s evidence was vigorously and tellingly challenged, a matter to which I shall return.  It was, however, accepted by the Judge.

E.  The legal principles

E.1  The elements of the offence

122.  The starting-point is the frequently cited statement of Pollock B in R v Vreones[58] that the common law offence of attempting 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.”

123.  Although the offence is referred to as an “attempt”, it is a substantive offence.[59]  The provisions of section 159G of the Crimes Ordinance[60] dealing with the inchoate offence of attempt are therefore not relevant.  However, like the inchoate offence, the crime of attempting to pervert the course of justice is committed whether or not the act proves effective in interfering with the course of justice.[61]  The doing of the act with the stated tendency, coupled with an intention to pervert the course of justice constitutes the complete offence.

124.  Conduct has a tendency to pervert the course of justice if it has a tendency to cause a miscarriage of justice[62] or, put another way, a tendency towards “impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice”.[63] 

125.  A conspiracy to pervert the course of justice is an agreement to do an act which has a tendency to pervert the course of justice, intending that the agreed act should have that effect.  Where the conduct in question has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the alleged conspirators intended that the act agreed upon should be performed.   But where the act does not have such a manifest tendency, it is necessary to prove the specific intent of perverting the course of justice on the part of the alleged conspirators.[64]

126.  For an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings.[65]  A conspiracy to effect some other unlawfulness but which has no tendency to cause a miscarriage of justice in curial proceedings, is not a conspiracy to pervert the course of justice.[66]  It is unnecessary for such proceedings to have been instituted at the time of the acts in question but the relevant acts must “have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible...” [67]  And the accused must know of or contemplate the possible institution of such curial proceedings and realise that the proposed conduct has the manifest or intended tendency to pervert the course of justice in relation thereto.  It matters not that the relevant law enforcement agency has not itself considered bringing proceedings at the time of the accused’s act or agreement in question.[68]

127.  Investigations by law enforcement agencies do not themselves form part of “the course of justice” (an expression synonymous with “the administration of justice”) so that acts which hinder or interfere with their investigations are not sufficient in themselves to constitute a perversion of the course of justice.[69]  However, if such acts of interference carry a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from the investigations, they are capable of founding the offence.[70] 

E.2  Approaching a witness

128.  A wide range of acts may have a tendency to pervert the course of justice.  The focus in the present case has been on approaches made to a witness or potential witness.  The act of approaching a witness (a term I use to include a prospective witness) may or may not have a tendency to pervert the course of justice depending on the circumstances.  In most cases where the offence is charged, the position is straightforward.  Thus, where the accused seeks to induce a witness to give false evidence or not to give evidence by using force, bribery or improper pressure, there is no doubt that the act is culpable as an attempt to pervert the course of justice.

129.  However, as Stephenson LJ pointed out in R v Kellett,[71] difficult questions may lie in the penumbra of the offence.  Having referred to cases concerned with the manufacture of false evidence or the withdrawal of a true complaint, he pointed out that those decisions:

“... do not deal with the limits of the offence or indicate whether it can be committed where the evidence of the potential witness is false or may be false, or whether it can be committed where the means used are not bribery or reward but threats, or where the threats used are threats to exercise a legal right, or where the intention, or one of the intentions, of him who approaches the potential witness is to exercise such a right or to see that justice, or what he believes to be justice, is done to himself or another.”[72]

130.  The way that R v Kellett dealt with such issues, adopted in many subsequent cases, was to examine the purpose of the approach made to the witness and, if made in order to influence his or her anticipated evidence, the means employed to achieve such influence.

131.  An approach may of course be made without seeking to influence the witness at all.  Thus it has long been accepted that a party (or a person interested in contemplated proceedings) or his lawyer may lawfully approach a witness for the purpose of ascertaining what he has to say on relevant matters.  In R v Bishop of Lincoln,[73] decided in 1637, Lord Coventry stated:

“...a solicitor must not instruct a witness, nor threaten him, nor carry letters to him to induce him this way, or that; yet he may discourse with him, and ask him what he can say to this or that point, and so he may know whether he be fit to be used in the cause or no: by which means this court is freed from the labour of asking many idle questions of the witnesses to no end, if they can say nothing to them, and so spend good time to no end nor purpose;...”

132.  This is reflected in the principle that there is no property in a witness so that, as Lord Denning MR pointed out, neither party can “prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena.”[74]  Pointing to the Law Society’s guidance to its members, his Lordship stated:

“... the Council have always held the view that there is no property in a witness and that so long as there is no question of tampering with the evidence of witnesses it is open to the solicitor for either party to civil or criminal proceedings to interview and take a statement from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by the other party.”[75]

The Hong Kong Law Society has given similar guidance.[76]

133.  Indeed, the right to approach a witness for such proper purposes is protected by the courts treating as a contempt, any attempt to prevent a party or his lawyers from engaging in that process.[77]

134.  But great care must be taken if an approach is to be made with a view to influencing a witness in relation to his or her anticipated evidence.  Such an approach can only properly be made if its purpose is lawful and if no unlawful or improper means are used to secure that purpose.

135.  Thus, a party or his lawyers may believe that the evidence which the witness is likely to give is false and may wish to make an approach with a view to dissuading that witness from committing perjury or otherwise giving false evidence.  Such an objective is lawful.[78]  And it is lawful to try to achieve that purpose using reasoned argument supported by material facts and documents aimed at persuading the witness of the falsity of his proposed evidence.[79]  Helpful guidance can be found in the joint judgment of Brennan, Toohey and McHugh JJ in Meissner,[80] where their Honours stated:

“Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge.  As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs.”

136.  That was a case involving pressure on an accused person to plead guilty, but the propriety of the means used to influence a witness may also usefully be tested by asking whether the methods used leave the witness genuinely “free to make the choice” as to whether to give evidence and what evidence to give.  Thus, it has rightly been held lawful merely to advise a potential witness that he is under no obligation to agree to be interviewed by the other side.[81] 

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

138.  Even where the purpose of the approach is itself proper – for instance, to dissuade the witness from giving what is perceived to be false evidence – the offence is committed if the means used to attain that purpose are unlawful or improper.  Thus, dealing with a statutory version of the offence (which is not materially different) Osler JA stated:

“It would not have been unlawful for him, by argument or explanation, to have attempted to dissuade the witness from giving what the accused may have honestly believed to be an untrue account of the transaction, and to give what may have appeared to him to be the true one.  The offence consists in doing it corruptly, whether by threats, bribes, or other corrupt means, which have a direct tendency to influence the witness not to give the true version of the facts, as it may really have appeared to him, but what may be, so far as the knowledge or belief of the witness himself is concerned, a false one, and thus corruptly to interfere with or obstruct the administration of justice.”[84]

139.  Whether conduct constitutes improper pressure may involve questions of fact and degree.  As Stephenson LJ pointed out:

“Pressure which may be permissible at one stage of the particular proceedings may be improper at another. What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority.”[85]

F.  How the charge should be approached

140.  The conspiracy charge is set out in Section B above.  It has ambiguities which gave rise to much discussion at the hearing of the appeal.  In my view, in an effort to resolve those ambiguities and to locate the conspiracy alleged within the legal framework just discussed, the charge should be approached on the following basis:-

(a)  It identifies the conspirators as the four defendants plus Chung.

(b) It identifies the curial proceedings which were allegedly in the contemplation of the alleged conspirators and the object of an intended perversion of justice as the criminal proceedings possibly arising from the ICAC investigation involving Derek Wong.

(c) It alleges that the accused and Chung believed or suspected that Becky Wong was cooperating with and assisting the ICAC in the investigation.

(d) It alleges that the accused and Chung conspired together to do a series of acts which had a tendency to pervert the course of justice.

(e)  Despite ambiguity in the wording, it should be taken to be identifying as the agreed purpose or object of that series of acts, the obstruction and hindrance of the investigation and possible proceedings.

(f)   It should furthermore be read as alleging that it was also part of the agreed purpose of that series of acts that the alleged conspirators should gain access to Becky Wong with a view to ascertaining what she had said to ICAC investigators and “influencing her against providing assistance or information to the ICAC”.

(g) It goes on to specify as the relevant series of acts, constituting the means by which those objects were to be achieved, the following (corresponding with sub-paragraphs (a) to (d) of the charge as drafted), namely:

(i)    falsely representing to officers of the ICAC that certain persons represented Becky Wong’s interests in dealing with the ICAC “and ... seeking access to her”;

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

(iii)    submitting to the High Court, in relation to the application, affirmations which they knew or believed to be false or misleading in material particulars; and

(iv)    disseminating information and materials to journalists to publicize Becky Wong’s involvement in the ICAC investigation and falsely representing that she was being unlawfully detained by the ICAC.

141.  In practice, only the second of the alleged means, namely, the mounting of a habeas corpus application known to be bogus, was pursued as the unlawful or improper means of attaining the alleged conspirators’ aims.  It is not surprising that this should have been so. 

(a)  The misrepresentations and the seeking of access referred to in the first particular are too preliminary and too remote to be regarded as having a tendency to cause a miscarriage of justice in the possible criminal proceedings in question. 

(b) The third particular is either redundant as a matter covered by the second particular or it bears only on a charge of attempting to pervert the course of justice in the habeas corpus proceedings, which are not the curial proceedings relevant to this charge.

(c) In his opening at the trial, Mr Martin Wilson QC[86] explained that the prosecution’s case on the fourth particular was that the press was being used by Lam and Egan to put pressure on the ICAC with a view to being allowed access.  There is therefore no apparent connection between the dissemination of information to the press there referred to and any tendency to cause a miscarriage of justice in relation to the possible curial proceedings. 

142.  Consequently, the prosecution’s case boils down in practice to the allegation:-

(a)  that the four accused and Chung conspired together to pervert the course of justice in respect of possible criminal proceedings arising from the investigations concerning Derek Wong;

(b) that their agreed purpose was to influence Becky Wong against providing the ICAC with assistance or information, thereby hindering their investigation and those possible proceedings;

(c) that the unlawful or improper means by which they sought to achieve this, in other words, the proposed act having the tendency and intended to pervert the course of justice, was the act of causing the habeas corpus application to be brought knowing or believing that Becky Wong was not in fact unlawfully detained and that she did not seek release from the custody of the ICAC.

143.  As noted above, merely hindering or interfering with the ICAC’s investigations would not of itself constitute the offence.  Interference with their investigations had to have a tendency to pervert the course of justice in relation to the prospective curial proceedings.  Complaint has justifiably been made that the intended influencing of Becky Wong has not been properly particularised.  Nor does the charge indicate how such influencing has a tendency to pervert the course of justice in the possible proceedings.  However, in my view, it is implicit in the charge that the intended influencing of Becky Wong to refrain from assisting or giving information to the ICAC would, if successful, have a tendency to pervert the course of justice by depriving the prosecution of the evidence of a key witness[87] in the prospective proceedings. 

144.  In my view, the charge as formulated is capable of being so understood and presents a legally viable charge of conspiracy to pervert the course of justice involving an unlawful purpose to be achieved by unlawful means.  Such an approach to the charge appears to have underpinned the conduct of the trial and I see no prejudice to the accused in proceeding on the aforesaid basis.  I am unable to accept the submission made by Ms Montgomery that it discloses no offence known to law. 

145.  The Judge convicted the accused of a conspiracy essentially along the aforesaid lines, holding as follows:

“I am satisfied beyond reasonable doubt that Derek Wong, Chui and Lam did conspire together with Frankie Chung in the one conspiracy to pervert the course of justice in seeking access and applying for habeas corpus on behalf of Becky Wong when they knew or believed that she was not unlawfully detained and did not seek release from the custody of the ICAC, and they did so with the intention to and did carry out the acts to influence her against providing assistance or information to the ICAC and the acts did have such a tendency which was within their contemplation.”[88]

G.  What the prosecution had to prove

146.  The fundamental issue is whether the convictions of Lam and Chui for participation in such a conspiracy are sustainable on the evidence.  Since the launching of a habeas corpus application is plainly not an act with a manifest tendency to pervert the course of justice, it was necessary for the prosecution to prove perversion of the course of justice as a specific intention on the part of each of them.  Does the evidence disclose to the criminal standard :-

(a)  that each of Lam and Chui entered into an agreement with the other alleged conspirators to take action involving the exertion of influence on Becky Wong designed to cause her to refrain from giving information and assistance to the ICAC and from acting as a prosecution witness in the possible proceedings, with the intention that the action should produce such a result?

(b) that each of them agreed in particular to cause a bogus habeas corpus application to be made, knowing or believing that Becky Wong was not unlawfully detained and did not seek to be released from the ICAC’s custody, to secure those objectives?

147.  It follows that what the prosecution had to prove against Lam and Chui was (i) that each was party to an agreement designed and intended by each of them, to deprive the ICAC of Becky Wong’s assistance as a prosecution witness in the prospective criminal proceedings; and (ii) that each knew or believed that Becky Wong was not unlawfully detained and did not seek to be released from the ICAC’s custody.

H.  Preliminary considerations regarding the evidence

148.  Four preliminary considerations should be borne in mind.  In the first place, the Judge acquitted Egan because he was not satisfied beyond reasonable doubt that Egan knew that the habeas corpus application was a sham.

149.  Secondly, the Judge found that Derek Wong and Chung were both parties to the conspiracy which he found proved, a finding which none of the present appellants disputes.  It is against this background that the evidence against Lam and Chui must be assessed.

150.  Thirdly, the critical importance of the role played by Chung must not be overlooked.  In his opening at the trial, Mr Wilson stated that it was the prosecution case that it was Derek Wong and Lam who were the conspiracy’s instigators.[89]  He may have omitted mention of Chung since Chung was an immunised prosecution witness and not a defendant against whom he was seeking to prove a conspiracy.  However, such an approach runs the risk of seriously distorting the course of events.  Lam did not appear on the scene until about 4.00 pm on Tuesday 13 July, four days after Derek Wong’s arrest on Friday 9 July.  Chung, on the other hand, had been contacted by Derek Wong’s wife and had seen him at the ICAC’s premises at about 6.00 pm on the previous Saturday, 10 July.  He had spent most of the Sunday, 11 July, with Derek Wong and held a two-hour meeting with him after the latter was released on bail that day.  They met again twice on the Monday, 12 July, and it was during one of those meetings that Derek Wong caused Chui to send Becky Wong the SMS message suggesting that she contact Chung.  All of this happened before Derek Wong and Lam had ever met.  Moreover, as examined further below, Chung played a crucial role in the events which followed, particularly in telling lies about the phone call he received from Becky Wong.  It is therefore of the first importance that regard be had to the role played by Chung when assessing the culpability of Lam and Chui.

151.  Fourthly, the soundness of the Judge’s treatment of the evidence, and in particular, his approach to assessing credibility, is called into question by his unorthodox incorporation of a discussion of the defence submissions of no case to answer into his ultimate findings of fact.  One of the Judge’s statements, near the end of his judgment, which highlights these concerns runs as follows:

“As I have accepted the evidence of the prosecution witnesses (whereas in the case of Frankie Chung, to the extent I have indicated above), I find the inferences of guilt discussed at half time can all be taken to their logical conclusions at the ultimate standard of proof of beyond reasonable doubt.”[90]

152.  The suggestion that the Judge’s finding that the case against the defendants was proved beyond reasonable doubt was a “logical conclusion” from his finding that they had a case to answer is, to say the least, highly suspect.  One is led to question how far the Judge took into account the evidence given by Egan and the extent to which his decision to acquit Egan may have had an impact on the liability of Lam and Chui.  One is also led to question how far the Judge factored his view of Chung’s evidence into his assessment of their liability. 

153.  I have had the benefit of reading in draft and respectfully adopt the more detailed analysis of the problems posed by the Judge’s unorthodox approach to the no case submissions set out in the judgment of Mr Justice Litton NPJ.

I.  The case against Lam

I.1  The role played by Lam

154.  It is striking that, at least on the surface, Lam played a very limited part in the events which unfolded between 10 and 16 July.  His activities (leaving aside various phone calls) were effectively confined to the afternoon of 13 July as described in Section D.4 above.   He met Derek Wong for the first time at about 4.12 pm on that day and, after being joined by Chui at Lam’s office at about 5.39 pm, they went together to the offices of M&C at about 5.56 pm.  Lam was therefore in his office with Derek Wong for about an hour and three-quarters and with Chui for about 17 minutes. 

155.  During that meeting, Lam agreed to be retained by Derek Wong and the events which followed justify the inference that the latter told Lam about his and Becky Wong’s arrest by the ICAC; that Chui had been in contact with Becky Wong; and that he and Chui were concerned that Becky Wong might be unlawfully detained by the ICAC against her will.  Lam took the view that a different firm of solicitors should be instructed to represent Chui in addressing the concerns about Becky Wong and decided to refer her to M&C.  Lam telephoned Massie who made the file note mentioned in Section D.4 above.  As Massie was about to go off on a month’s leave, he arranged for Clement to deal with the matter.

156.  After Lam handed Chui over to Clement with the explanation that he considered this necessary in the light of a potential conflict of interest, Lam’s involvement was confined to the events at the FCC which followed.  He and Derek Wong fortuitously met Lam’s close friend Egan at the club and Lam told him about the case, including Chui’s concerns that Becky Wong might be unlawfully in the ICAC’s custody.  Lam acted as interpreter, recounting to Egan what Chui was saying in Chinese.  It appears that after hearing that Clement was proposing merely to send a letter to the ICAC on the following day, Lam criticised Clement’s handling of the matter as insufficiently “proactive”. 

157.  Thereafter, apart from a series of telephone conversations with some of those concerned, Lam was not personally involved in any of the steps taken in relation to Becky Wong in the three days which followed.  As we have seen, he was engaged in a case in the District Court for most of the day on both Wednesday and Thursday, 14 and 15 July. 

158.  Egan plainly decided to take up the matter himself after hearing about the case at the FCC.  He called Clement, suggesting that a mere letter was inadequate and offered himself up for making a legal visit that evening, stating that he had instructions from Chui that such a visit should be made.  He confirmed this in his evidence in chief:

“Q. Now, did Andrew Lam ask you to ring Richard Clement?

A. No.  I should say ‘No, your Honour.’

Q. Why then did you ring Richard Clement?

A. I rang Richard Clement because Massie & Clement were a firm that I worked for.  Both of them in different degrees - Massie and Clement - were friends of mine.  I didn’t want to see them criticised and I could smell the possibility that they might be sacked so I took it upon myself to ring Richard Clement to have what I could call a ‘Dutch Uncle chat’ with him.”[91]

159.  In relation to the later habeas corpus application, Egan responded to Mr Wilson in cross-examination as follows:

“A. Mr Lam took no part in any of the proceedings that I took on the instructions of C K Mok & Company and Massie & Clement.  His sole role was to introduce Mandy Chui to Massie & Clement and to introduce me to Derek Wong.  Apart from that he played no part in these proceedings.  Everything was done by me in consultation with Richard Clement primarily, and to the limited extent that you know, Frankie Chung from C K Mok & Company.

Q. But, Mr Egan, you yourself have told us that several times Mr Lam was calling you trying to find out what had happened in the proceedings.

A.  Absolutely.  They were what I call the ‘any developments’ calls.”[92]

An active interest in any developments on the Becky Wong front was quite consistent with Lam acting in the interests of his client Derek Wong.

160.  To return to the events at the FCC, Egan made his call to Clement at 6.51 pm, only some 40 minutes or so after Lam and Derek Wong arrived at the club.  Thereafter, Egan was acting on the instructions of M&C accompanied by Raymond Lam.  He was plainly ready to act off his own bat and without express instructions from his professional or lay client, as he did when he wrote the letter of complaint against an ICAC officer and when he made the report of false imprisonment to the police later that evening.  Those steps were obviously not instigated by Lam.

161.  If the evidence against Lam was confined to his apparently minimal personal involvement just described, it would be impossible to see how any charge of conspiracy to pervert the course of justice could be levelled against him. 

162.  The prosecution’s case was, however, that far from having a limited involvement, Lam was throughout “calling the shots from behind the scenes”. They relied on three matters to bolster such a case against Lam.  First, they attacked as a sham his assertion to Clement that he could not act for Chui because of a perceived conflict of interest on his part.  Secondly, they relied on what Lam had said at the Grissini lunch.  And thirdly, they relied on Nattrass’s evidence of what Lam had allegedly said at the dinner party on 30 August.

163.  Each of those three contentions is considered below.  However, I shall begin by considering the position as it stood on 13 July and ask what the inherent probabilities were. 

164.  In the first place, it is not in dispute that before about 4.00 pm on 13 July, Lam had never met Derek Wong or Chui.  They were total strangers to him.  Since the prosecution’s case is that Lam, as instigator of the conspiracy with Derek Wong, knew from the outset that Becky Wong was not in fact being unlawfully detained by the ICAC and did not wish to be released, the prosecution’s premise has to be that Lam was told this by Derek Wong and Chui that afternoon.  It must furthermore be the prosecution case that these total strangers asked him, with such knowledge, to take steps to deprive the ICAC of Becky Wong’s assistance and her services as a prospective prosecution witness, and that Lam thereupon hatched the conspiracy charged.

165.  Such a scenario is inherently improbable.  Why should perfect strangers, consulting a solicitor for the first time, take the risk of proposing what was an obviously unlawful scheme?  Even assuming (purely for the purposes of argument) that Derek Wong and Chui wanted to interfere unlawfully with Becky Wong as a potential witness, is it not plainly more likely that they would have told Lam (as Chui later told Clement) that they believed that Becky Wong was being unlawfully detained so that the solicitor would accept instructions and proceed to take action?  And why would Lam agree to a criminal scheme, putting himself and his professional career at risk at the request of mere strangers, it being common ground that Lam opened a file on the case and only charged his professional fees? 

166.  Secondly, Massie’s file note which evidently recorded what Lam had told Massie on the phone as a preliminary to introducing Chui to M&C, indicates that Lam had merely suggested that a letter ought to be written to the ICAC.  It may well be that Lam later changed his mind after meeting Egan at the FCC and had then decided to press for more vigorous action.  But if the file note is taken to be evidence of what was in Lam’s mind as a result of his meeting with Derek Wong and Chui that afternoon, it is quite inconsistent with any conspiracy to do acts with a tendency to pervert the course of justice having then come into being.

167.  Thirdly, if Lam were indeed party to such a conspiracy, it is hard to understand why he would have turned the matter over to Clement, a solicitor who was not implicated and who could be expected to act in accordance with his professional duties as an officer of the court.  I return later to deal with the suggestion that this was all a ruse.  The question nevertheless remains: why would Lam have taken the risk that Clement might not be susceptible to Lam “calling the shots from behind the scenes”, given Clement’s admitted professional independence?  As we will see, Clement refutes the suggestion that he was subservient to Lam’s or anyone else’s views regarding his handling of Chui’s interests.

168.  Fourthly, as we have seen, Egan acknowledges that his initial intervention, including his phone call to Clement on 13 July, was done on his own initiative and not at Lam’s suggestion.  It is also clear from the record that Egan’s second unsuccessful visit to the ICAC was done at Derek Wong’s behest and on the instructions of Chung and C K Mok after Chung misrepresented the effect of his midnight conversation with Becky Wong.  Furthermore, Egan testified that everything to do with the habeas corpus applications was done by him primarily in consultation with Clement, and to a limited extent with Chung and C K Mok. 

169.  It is true that the Judge found that Egan had not been a truthful witness. However, in saying this, the Judge’s focus was on the lack of credibility of Egan’s attempt to explain away his call to Derek Wong which appeared to breach Yam J’s “gag order”. [93]  However, Egan’s taking upon himself and excluding Lam from responsibility for making the habeas corpus application was not a self-serving admission and was consistent with the evidence of Clement and Raymond Lam.

I.2  The attack on conflict of interest as a ruse

170.  The trial Judge[94] and the majority in the Court of Appeal held that there was no basis for Lam’s claim that a potential conflict of interest prevented him from acting for Chui in relation to Becky Wong’s situation.  Ma CJHC, with whom Wright J agreed, put it thus:

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

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

The premise therefore in Lam not agreeing to act for Mandy (as well as Derek) was non-existent.”[95]

171.  This was crucial to the majority’s decision to dismiss Lam’s appeal.  Their reasoning ran as follows:  There was no conflict of interest.  Why then did Lam claim there was a conflict?  Answer: to put up Clement as a blind or “cordon sanitaire” to conceal Lam’s and his client Derek Wong’s interest in “getting at” Becky Wong while Lam “called the shots from behind the scenes”.  That he was doing just that is demonstrated by his “countermanding the course of conduct planned by the very solicitors to whom Lam had introduced Mandy” and by the “heavy telephone traffic” between Lam and Egan.[96]  Support for this view was also sought in the Judge’s finding that Derek Wong and Lam had “agreed to involve the press in carrying out the object of the conspiracy”.[97] 

172.  Ma CJHC went further, holding that there was an “irresistible inference” that Lam “must have known that Becky was not illegally detained by the ICAC”, apparently on the basis of his heavy concealed involvement.[98]  Wright J had held (with respect, erroneously) that proof was not required of Lam’s knowledge or belief that Becky Wong was not unlawfully detained, but nevertheless expressed himself satisfied that the Judge was entitled to infer such knowledge on Lam’s part.[99]

173.  The conclusion of the majority is contained in the following paragraphs in Ma CJHC’s judgment which are of sufficient importance to be set out in full:

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

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

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

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

174.  I am, with the greatest respect, unable to agree with the majority’s reasoning and conclusions in this context.  In the first place, I do not accept the premise that there was no potential conflict of interest.  If access could be gained to Becky Wong to ascertain whether she was unlawfully detained and wanted to be released, the solicitor concerned clearly had to be in a position to act in furtherance of her interests if required.  But until her attitude was known, it was plainly possible that her interests – if she was, for instance, to be voluntarily a prosecution witness against Derek Wong – might be diametrically opposed to those of her boss.  Lam’s client was Derek Wong.   He could not properly advise Becky Wong at the same time if it turned out that her interests were adverse to those of his client.  Tang VP’s observation is apposite:

“Suppose on gaining access to Becky, she asked, ‘The ICAC has offered me the chance of being an immunised witness.  Should I accept?’ Lam would have been in an impossible position of conflict.”[100]

175.  Before this Court (but not below) Mr Wilson accepted that there was an obvious potential conflict of interest.  He maintained, nevertheless, that Lam introduced Clement into the picture as a “cordon sanitaire”.  But if there was a genuine conflict, the entire line of reasoning is undermined.  If there was a conflict, Lam’s referral of Chui to M&C was dictated by the Law Society’s code of ethics.  How could the Court then be satisfied that the referral was merely a cynical ruse?  The code[101] states:

“A solicitor ... must not accept instructions to act for two or more clients where there is a conflict or a significant risk of conflict between the interests of those clients.

Where a solicitor already acts for one client and is asked to act for another client whose interests conflict or appear likely to conflict with those of the first client, he must refuse to act for the second client.”

176.  Moreover, Clement refuted any suggestion that he was being used by Lam in the manner suggested by the prosecution.  His evidence in cross-examination went as follows:

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

A.  Absolutely.

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

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

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

A.  No, no.

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

A.  Oh, absolutely, yes.

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

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

Q.  Pardon?

A.  It would be a very fair comment.

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

A.  Absolutely, yes.”

177.  That passage from Clement’s evidence was referred to by Ma CJHC but discounted on the basis that there was in fact no conflict of interest, a proposition which I am unable to accept.

178.  The suggestion that, as part of the conspiracy, the intention was to conceal Lam’s and Derek Wong’s interest in Becky Wong’s situation is not borne out by the evidence.  Egan, who was allegedly a co-conspirator, did not hesitate to announce to ICAC officers and to Ryan in the midst of his efforts to obtain access to Becky Wong that it was Lam who was then calling him on the telephone.  Moreover, there was evidently no attempt to conceal Derek Wong’s interest given that Chung was instructed to accompany Egan on his second ICAC visit on 14 July.  Chung had visited Derek Wong at the ICAC on Saturday 10 July (and waited there to see him from about 9.00 am to 6.00 pm).  He had also accompanied Derek Wong at his interview by ICAC officers on Sunday 11 July and then had made the arrangements for the bail money needed to secure Derek Wong’s release that day.  There was therefore every reason to think that Chung’s connection with Derek Wong would be noted, as indeed duly occurred on 14 July.

179.  The suggestion that Lam was “calling the shots” because he had “countermanded” the course of conduct planned by Clement is unjustified.  As noted above, Egan’s evidence was that while Lam agreed with him that a more proactive approach was required, Lam had not asked him to make the call but that Egan had taken it upon himself to call Clement (whom he regarded as essentially a civil lawyer) to give him a “Dutch uncle’s” advice.  Egan then took over the conduct of the visit and the conduct of the subsequent campaign to gain access to Becky Wong.

180.  It is no more than speculation to assume that the many phone calls between Lam, Egan and others show that Lam was running the show from behind the scenes.  Egan’s evidence was that Lam simply wanted to be kept informed of any developments in the attempts to see Becky Wong, which is at least as likely an explanation of the phone calls and which would indicate an attitude consistent with Lam’s status as Derek Wong’s solicitor. 

181.  In paragraph 282 set out above, Ma CJHC appears to implicate Lam because no reference is made to a link between Derek Wong and Chui in the documents filed in support of the habeas corpus proceedings, adding: “The involvement of Lam was of course not apparent either”.  With respect, that criticism of Lam is unwarranted.  As we have seen, the habeas corpus application was launched on the basis of Chung’s affirmation containing his admitted lies, prepared at the offices of M&C with Clement in attendance on Wednesday, 14 July, and with no suggestion of any involvement on Lam’s part.  The only other documents relied on were Egan’s letter of complaint and Chui’s affirmation, the latter document having been prepared by Raymond Lam on Thursday, 15 July, again without Lam playing any part.

182.  The basis for Ma CJHC’s view that Lam must have known that Becky Wong was not unlawfully detained by the ICAC is difficult to discern. 

(a)  At paragraph 284, his Lordship acknowledges that “There is admittedly no direct evidence of this” but nonetheless states that inference of such knowledge is irresistible, adding:

“The attempt to disguise his heavy involvement in the attempts to gain access to Becky was, in my view, highly suggestive of an attempt to disguise from the ICAC, and later the court, the involvement of the very person who was the subject matter of the ICAC investigation, Derek.”

(b) Then at paragraph 285, Ma CJHC states two propositions, namely (i) that Becky Wong was probably the main witness against Derek Wong; and (ii) that apart from what Chui had asserted, there was no evidence that Becky Wong was being held against her will.  He then held that these matters gave rise to the inference “that Lam knew the true position”.

183.  It is difficult, with respect, to see either a logical or factual basis for the purported inference.  The proposition in paragraph 284 is once more based on the premise that there was in truth no conflict of interest.  Hence, so the reasoning runs, it was right to conclude that Lam put up M&C to conceal his and Derek Wong’s true purposes while calling the shots from behind the scenes.  The implicit next step in the reasoning is that Lam’s need to conceal his involvement indicates that he knew very well that Becky Wong was not being unlawfully detained.  For the reasons developed above, the premise and the subsequent stages in such reasoning cannot be accepted. 

184.  As to paragraph 285, it is not easy to see how the conclusion that Lam must have known the true position flows logically from either or both of the two propositions stated.   The thrust of the paragraph may be that Lam must be taken to have known that Becky Wong was not being unlawfully held because he could not possibly have believed otherwise merely on the basis of what Chui had asserted.  If that is the intended thrust, it is open to objection as a matter of principle.

185.  Assuming that when Derek Wong and Chui went to see Lam on 13 July, Chui’s instructions were that she believed that Becky Wong was being unlawfully detained by the ICAC against her wishes, Lam was entitled to act on those instructions unless he knew them to be false.  Even if the Court should regard Chui’s asserted belief with scepticism, it would be wrong in principle for it to allow such scepticism to taint its assessment of the solicitor’s state of mind as to the truth or falsity of her instructions.   A finding that the solicitor knew of the relevant falsity and was complicit in a perversion of the course of justice calls for unequivocally clear evidence to that effect.  In the absence of actual knowledge, a solicitor (or barrister) is bound to adopt an agnostic approach towards the client’s instructions in carrying out his professional duties since it is not his business to judge their truth or falsity.  The solicitor or barrister may privately harbour distinct feelings of scepticism about his client’s story but that is wholly beside the point.  Professionally, he is required to abstain from forming any belief one way or the other on the topic.  For a court to attribute guilty knowledge or belief and criminal liability to the legal adviser in such circumstances would gravely endanger the fundamental right to legal advice and representation.

186.  The remarks of Street CJ in R v Tighe and Maher,[102] are highly apposite:

“It is expected of course of every solicitor that he shall act up to proper standards of conduct, that he shall give his clients sound advice to the best of his ability, and that he shall refrain from doing anything likely to mislead a Court of Justice; but, in the course of his practice he may be called upon to advise and to act for all manner of clients, good, bad or indifferent, honest or dishonest, and he is not called upon to sit in judgment beforehand upon his client's conduct, nor, because he does his best for him as a solicitor within proper limits, is he to be charged with being associated with him in any improper way. In acting for a client, a solicitor is necessarily associated with him, and is compelled to some extent to appear as if acting in combination with him. So he may be, but combination is one thing and improper combination, amounting to a conspiracy to commit a crime or civil wrong, is another thing.”

187.  And in Moage Ltd (In Liquidation) v Jagelman,[103] Burchett J put the point thus:

“No implication of involvement by a solicitor in his client's misconduct arises merely from an allegation that the solicitor performed legal work related to the client's activities.  It is the nature of legal practice that solicitors act for all sorts of clients, whose real motives and intentions may be concealed from their advisers.  Therefore, if a knowledge of the impropriety of what a client is doing is to be alleged against a solicitor, the allegation should be made in clear terms; the reader of a pleading should not be left to spell out such an allegation by inference from the engagement of the solicitor to act in the client's affairs.”

188.  The Law Society’s guidance to its members is to similar effect:

“In general, there is no duty upon a solicitor to enquire in every case where he is instructed as to whether his client is telling the truth.  However, where his instructions or other information are such as should put him upon enquiry, he must where practicable check the truth of what his client tells him to the extent that such statements will be relied upon before the court, or in pleadings or affidavits.  However, it will be for the court, and not the solicitor, to assess the truth or otherwise of the client’s statement.”[104]

I.3  The Grissini lunch

189.  The Grissini lunch took place on Thursday 15 July and is described in Section D.6 above.  Ma CJHC (with whom Wright J agreed) indicated that he did not “place too much importance” on this episode of the evidence,[105] regarding it as merely corroborative of Lam’s “extensive involvement, particularly in the habeas corpus proceedings (which Lam said he had planned) notwithstanding his alleged conflict of interest”.  He interpreted Lam’s reference to switching on “all the machines” against the ICAC as involving the use of the press, previously alluded to. 

190.  The question of using the press may be put aside.  It reflects what is alleged in the fourth particular of the charge, which is discussed in Section F above and is, in my view, irrelevant for the reasons stated there.

191.  The support which the prosecution’s case obtains from the evidence of Lau is slight.  It consists of evidence that Lam claimed to have “planned the action of habeas corpus to help Becky Wong”.  It is not clear what Lam meant by his having “planned” the application.  There was ample evidence regarding the actual preparation and launching of the habeas corpus application from Clement, Raymond Lam, Chung and Egan (as described in Sections D.5, D.6 and D.7 above).  None of them indicated that Lam was involved.

192.  On the other hand, Lam’s statements to Lau that the ICAC had unlawfully detained Becky Wong, that Chung had received a phone call from her asking for help and that the habeas corpus application was being made to help her are statements which weigh against a finding that Lam knew or believed that Becky Wong was not in fact being unlawfully detained. 

I.4  The evidence of Nattrass

193.  Nattrass’s evidence is summarised in Section D.8 above.  The basis on which the Judge concluded that Lam knew or believed that Becky Wong was not unlawfully detained and did not seek release rests heavily on his acceptance of that evidence.  In the Court of Appeal, Tang VP subjected that evidence to a searching analysis[106] and found that it was quite unreliable and had not been properly evaluated by the Judge.  Ma CJHC, however, was satisfied that the Judge had carefully analyzed Nattrass’s credibility in the Reasons for Verdict, having heard his evidence at first hand, and was not satisfied that this was an appropriate case to overturn the Judge’s views on the credibility.[107]  Wright J placed heavy reliance on Nattrass’s evidence as the basis for upholding Lam’s conviction.[108]

194.  It is well-established that an appellate court should be very slow to interfere with credibility findings made by the primary judge but that, if it can be shown that the findings are plainly wrong, such interference is mandated.  Lord Reid’s statement of the position in Benmax v Austin Motor Co Ltd,[109] is well known:

“No one would seek to minimize the advantage enjoyed by the trial judge in determining any question whether a witness is or is not trying to tell what he believes to be the truth, and it is only in rare cases that an appeal court could be satisfied that the trial judge has reached a wrong decision about the credibility of a witness. But the advantage of seeing and hearing a witness goes beyond that: the trial judge may be led to a conclusion about the reliability of a witness's memory or his powers of observation by material not available to an appeal court. Evidence may read well in print but may be rightly discounted by the trial judge or, on the other hand, he may rightly attach importance to evidence which reads badly in print. Of course, the weight of the other evidence may be such as to show that the judge must have formed a wrong impression, but an appeal court is and should be slow to reverse any finding which appears to be based on any such considerations.”

195.  In Ting Kwok Keung v Tam Dick Yuen,[110] having cited that passage and others to like effect, Mr Justice Bokhary PJ identified the proper approach of the appellate court as follows:

“The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong.  The Court of Appeal should intervene if so satisfied.  But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness.”

196.  With great respect to the Judge, I have come to the conclusion that Tang VP was right.  For several reasons, the Judge’s evaluation of Nattrass’s evidence seriously miscarried and this is one of the rare cases where the Court of Appeal should have rejected the trial judge’s findings on credibility.

197.  At the trial, Nattrass testified that he “had met Lam many times before and knew Lam reasonably well”.[111]  This was, however, contradicted by an undated note prepared for the ICAC in Nattrass’s own handwriting, setting out the following question and his answer:

“Q.  What’s my relationship with Lam?

A.   Almost none brief acquaintance.”

198.  That was a most telling point, not merely because Nattrass’s oral testimony was contradicted by his own document, but because it called into question the whole basis of his evidence against Lam.  If Nattrass had almost no relationship with Lam, can it be at all credible that Lam would have confided in him in highly self-incriminatory, almost conspiratorial, terms at a dinner party in August 2004 after Lam had been arrested by the ICAC?

199.  The Judge was apparently aware of this crucial question but his response wholly fails to grapple with it:

“Aaron Nattrass explained that he did not have any relationship with Lam, but he knew Lam indirectly through Egan.  I accept that Nattrass knew Egan quite well as he was asked to look after Egan’s interests on Egan’s arrest and search.  Hence, while Nattrass was only a brief acquaintance of Lam, they had a common friend, Egan, and were not strangers to each other.”[112]

Pointing to Nattrass’s friendship with Egan does nothing to explain why Lam would confide in Nattrass in self-damnatory terms.

200.  Two further serious flaws in the Judge’s treatment of Nattrass’s evidence can be taken together.  First, as Ms Montgomery pointed out, many of the purported revelations by Lam reported by Nattrass made little sense if properly evaluated against the background of known and uncontroverted facts, an evaluation not carried out by the Judge.  Secondly, in accepting Nattrass’s evidence on these points, the Judge adopted an approach which suggests a reversal of the burden of proof.

201.  An example of the first type of flaw relates to Nattrass’s allegation that Lam admitted that Chui “had forgotten her lines”.  The background was Nattrass’s obvious pride in his purported detective work in conducting a company search on Ever Brilliant and discovering that Becky Wong was not listed as a shareholder.  He claimed triumphantly to have found material showing that Chui had lied in claiming that Becky Wong was her business partner.  There was in fact nothing in the point as Becky Wong acknowledged that she and Chui were indeed business partners.  Although she had not yet been issued with the shares, Becky Wong had in fact been given a 30% interest in the company and had signed the instrument of transfer.  So on the objective facts, there was nothing false about Chui’s claim and it is hard to see how there could be any “lines” for Chui to forget.  How then could one be satisfied that Nattrass was telling the truth when he said that Lam was worried about the results of Nattrass’s company search and dolefully acknowledged that Chui had forgotten her lines? 

202.  The Judge’s rejection of such criticism was unsatisfactory and also troubling in its approach:

“Granted that Becky Wong said she had signed the instrument of transfer in Ever Brilliant, but the shares transfer was not duly registered.  It is a fact that the company search did not reflect any shareholdings by Becky Wong.  Lam said Becky Wong was only recently brought into the company and the annual return would not reflect that, and Chui had forgotten her lines.  There is no inconsistency between Chui might have regarded Becky Wong as a business partner and the company search did not reflect that Becky Wong was a 30% shareholder.  Seen in this light, it is not inherently improbable that Lam said Chui had forgotten her lines.”[113]

203.  This response misses the point.  The Judge states that there was no inconsistency between Chui regarding Becky Wong as a business partner and the company search not showing Becky Wong as a 30% shareholder.  Not only is that plainly correct, it is precisely the point of the attack on Nattrass’s credibility.   Given the absence of any such inconsistency, for what conceivable reason should Lam be worried about the search and why should he lament any “forgetting of lines” by Chui?

204.  The flaw runs deeper in that the Judge purports to resolve the issue by saying: “[Seen in the light of the absence of inconsistency] it is not inherently improbable that Lam said Chui had forgotten her lines.”  That smacks of a reversal of the burden.  It suggests that he was prepared to accept Nattrass’s evidence unless it could be demonstrated to him that it was “inherently improbable”.  He was, as Ms Montgomery put it, moving from “not inherently improbable” to “I am sure”.

205.  Unfortunately, the Judge applied this unhappy approach to the entire conversation with Lam as reported by Nattrass:

“It is noted that the conversation started with Lam enquiring about the ICAC letter of enquiry to M&C, and Lam’s comment on M&C’s failure to claim legal professional privilege.  Then Nattrass confronted Lam with the company search, and he further referred to the fact that ‘protective custody’ appeared on the M&C file seized.  I remind myself that it is not permissible to treat Nattrass’s evidence as self-corroboration.  However, the conversation must be seen in the circumstances and context as it was given.  Seen in this light, there is nothing inherently improbable about Lam saying to Nattrass the things now given in evidence by Nattrass.”[114] (Italics supplied)

206.  A second example of a topic reported by Nattrass which objectively made no sense is to be found in what he claims Lam asked him to tell Massie.  It was clear and beyond dispute that Massie had nothing to do with the events leading to the present charges.  As the Judge found, he left work at 6.07 pm on 13 July and was thereafter away from Hong Kong on a month’s leave.  That was of course why he handed the matter over to Clement.

207.  On what conceivable basis then, could one accept Nattrass’s claim that Lam had asked him to make sure Massie understood that “if Lam went down, Massie would be going down too in relation to the ICAC investigation”[115] or that Lam had asked him to tell Massie that “he did not have to worry because Chui had been paid and well taken care of.  The next time she reported for bail, she had been asked to shut up and say nothing”?  What could Massie possibly “go down” for in relation to the ICAC investigation?  What could Massie have to worry about so that he might be comforted by Chui being paid for her silence?  These were questions which had to be addressed if Nattrass’s credibility was properly to be evaluated.  They were not addressed.

208.  Finally in relation to Nattrass, there was evidence, especially from Clement, [116] that he had a record which, to say the least, gave rise to serious concerns as to his reliability as a witness.  While Nattrass sought to brush off some of these matters as “a joke”, the cumulative effect of these items clearly had to be taken into account.

(a)  Nattrass plainly had a grievance against M&C which had dispensed with his services and against whom he had made about 20 criminal complaints spanning fraud, perverting the course of justice, assault, criminal intimidation, tax fraud and breaching the WPO – facts which suggest not only a tendency towards making indiscriminate accusations but also suggesting the possibility that his grievances may have coloured his account of what Lam had told him so as to implicate Massie. 

(b) He had also made criminal complaints against numerous other persons including counsel and solicitors, security guards, physicians, a High Court judge, immigration officials, Legal Aid officers, an ICAC officer and staff in the New Zealand Consulate General, among others, most of which, if not all, had been “thrown out”.

(c) He had also made extravagant claims about himself, including claims that he had been mentioned in dispatches for acts of bravery while in the New Zealand army reserve and had been airlifted out of Cambodia and treated in the Philippines for gunshot wounds; that he had personally made arrests in the “Rainbow Warrior” incident; that he had been legal adviser to the Philippine President and a law professor at the University of Baguio.  Some of these Nattrass sought to explain away as just jokes.

(d) He was a self-appointed ICAC informer and had surreptitiously passed to them various confidential client documents, including copies of cheques for fees paid to M&C drawn by Chui on Ever Brilliant’s account.

209.  Against the background of the abovementioned matters, the Judge’s indication of why he was prepared to accept Nattrass’s evidence is, with respect, unpersuasive:

“It was suggested that Nattrass combined and embellished evidence from different sources.  He has been reminded not to mix what he heard with what he thought.  He was subject to strenuous cross-examination and he stood by his evidence on the conversations with Lam and Egan.  It is important to note that apart from his concern for the reputation of M&C, he had nothing to gain but everything to lose in being a witness in this case.  He had no motive to lie against Lam and Egan, other than it was suggested that he was not a normal person.  But as said before, he had been the managing clerk for M&C for almost 10 years.”[117]

210.  It is odd that the Judge appears to have accepted that Nattrass, who had been secretly breaching the confidences of the firm’s clients, should be concerned about the firm’s reputation.  He may have been with the firm for 10 years, but he was giving evidence after an acrimonious parting of the ways.  His record indicated that he was given to fantasy and exaggeration and was plainly a witness to be wary of.  More importantly, the specific flaws in the account of the purported conversation with Lam discussed in detail above fatally undermine Nattrass’s credibility in ways not addressed by the Judge.

I.5  Interim conclusion as to the case against Lam

211.  I return in Section K below to a discussion of the nature of the purported conspiracy established on the evidence, which bears on the liability of both Lam and Chui.  But on the basis alone of the foregoing discussion of the case against Lam it is my view that his conviction cannot stand.   His involvement as established by the evidence was very limited.  The theory that he was “calling the shots from behind the scenes” is based on a false premise and is not warranted by the evidence.   Evidence of what was said at the Grissini lunch adds little to the prosecution case and on balance favours a finding that Lam did not know or believe that Becky Wong was not unlawfully detained.  Nattrass’s evidence was not properly evaluated and findings based on it were plainly wrong. 

J.  The case against Chui

212.  The case against Chui is that the evidence as a whole justifies inferring on the criminal standard that she knew or believed that the habeas corpus proceedings were a sham and that she was party to the conspiracy to pervert the course of justice charged.  The asserted inference is based principally on her association with Derek Wong as his girlfriend, on her telephone communications with Becky Wong, especially on the latter saying she was “safe and sound”, and on Chui’s affirmation made for the purposes of the habeas corpus application. 

213.  There is no doubt that she did do a number of things at Derek Wong’s request, such as sending SMS messages to Becky Wong and paying the lawyers’ fees.  It is however important not to let her obviously obliging attitude towards Derek Wong obscure the need for proof on the criminal standard (i) that Chui was a party to an agreement designed and intended by the alleged conspirators, including herself, to deprive the ICAC of Becky Wong’s services as a prosecution witness in the possible criminal proceedings; and (ii) that Chui knew that Becky Wong was not unlawfully detained and did not seek to be released from the ICAC’s custody.  In Section K which follows, I discuss the nature of the purported conspiracy disclosed by the evidence, a topic which bears on issue (i) above.  In the discussion which I now embark upon, the focus is on issue (ii). 

J.1  Chui’s involvement between 10 and 13 July

214.  In July 2004, Chui was aged 24.  Becky Wong described her as “a person with not much experience of life”.[118]  She plainly knew little about the world of companies and the law.  When asked about Ever Brilliant, Becky Wong told the Court:

“I handled the paperwork, handled the administration of this company because Miss Chui doesn’t know how to handle those work.”[119]

And when Egan met her at the FCC, she struck him as “a fish out of water, as if she had no idea what was going on.”[120]

215.  It was not in dispute that Chui and Becky Wong were very close.  Becky Wong agreed that Chui regarded her “like not only a very good friend but like an older sister” and that theirs was a mutually caring relationship.[121]  Becky Wong also agreed that after she and Derek Wong were arrested on 9 July, Chui must have been “frantic” to try to find the two of them.[122]

216.  It is against this background that Chui’s involvement in the events we are concerned with should be examined.  Her involvement may be divided into three phases.  The first began on 10 July and ended at the FCC on 13 July. 

217.  When Becky Wong’s mobile phone was returned to her on Saturday 10 July, she saw a list of missed calls from Chui.  On the following day, 11 July, she called Chui and the Sunday phone call took place.  Becky Wong’s evidence was that she was trying not to be overheard by the ICAC officers present and that she told Chui that “it was not convenient to talk”.   She sensed that Chui knew she had been arrested and told Chui that she was “safe and sound”.  In other words, it was a situation where Becky Wong was indeed under arrest, she sensed that Chui realised this and it was in that context that she said she was “safe and sound”.  Chui could not be criticised for believing that Becky Wong was being held by the ICAC not withstanding those words of reassurance.

218.  As described in Section D.3, two important conversations between Becky Wong and Chui took place on the following day, Monday 12 July.  A proper assessment of the evidence regarding the impression Chui gained about Becky Wong’s situation from those conversations is central to the question whether the only reasonable inference is that Chui knew or believed that the campaign to obtain access to Becky Wong was a sham.

219.  Derek Wong had been released on bail on the previous day at about 4.00 pm, but Becky Wong was nowhere to be seen.  Chui was plainly very concerned.  It is significant to note that it was Becky Wong and not Chui who initiated the two Monday conversations.  There is no question of Chui having had those conversations at Derek Wong’s behest. 

220.  Becky Wong went to considerable lengths to be able to speak to Chui without the ICAC’s knowledge.  She wanted to call Chui to find out about Derek Wong and because of her concern for Chui as a friend.[123]  In the 1st Monday conversation, Becky Wong told Chui that she was “hiding in the toilet” and that she “had to speak softly as it was not convenient to talk”.  This echoed what had been said in the Sunday phone call.  Chui plainly thought so as she asked whether “they” were still with her and asked if Becky Wong was okay.  She obviously thought that Becky Wong was still under arrest.  It was once more in this context that Becky Wong said she was “safe and sound”. 

221.  When the conversations turned to Derek Wong, it may reasonably be said that Becky Wong must have given the impression that she regarded the ICAC as the enemy.  She told Chui to warn Derek Wong against using particular mobile phones because the ICAC knew about them.  She asked Chui to say sorry to him, confessing that she had told the ICAC about market manipulation and illegal money “as she felt the ICAC had tapped the phones and there was no way but to say it”.  Becky Wong then hung up hurriedly.

222.  Pausing at this point, it is, with respect, difficult to agree with the view of the Judge and the Court of Appeal that great weight should be given to Becky Wong’s “safe and sound” statements as crucial evidence in support of Chui’s conviction.  Taken in context, I cannot accept that they are capable of showing beyond reasonable doubt that Chui knew that Becky Wong was not being unlawfully[124] detained and was not seeking release from the ICAC.  Becky Wong did not simply say she was “safe and sound”.  She said it using the same phrase that she had used when she was indeed being held by the ICAC.  And she said it while at the same time telling Chui that “they” were still present, telling her of the subterfuges she had had to adopt to speak to Chui in secret, and while seeking to warn her boss against ICAC surveillance.  She then hung up hurriedly.  Becky Wong herself agreed that she might have sent misleading signals to Chui.[125]  While she denied that her voice was trembling when speaking to Chui, Becky Wong said: “I don’t think she was telling lies.  Probably she misunderstood the situation.”[126]

223.  Evidence of what Chui believed as a result of those two conversations emerges from Clement’s evidence and the letter which he drafted after taking instructions from her.  Chui told Clement that her business partner and friend Becky Wong was arrested on Friday, that there had been a number of calls between them on Sunday and Monday morning, and that Becky Wong had spoken in a quiet voice.[127]  Chui said she believed Becky Wong was in the custody of the ICAC, and that she was concerned as she felt Becky Wong did not want to be where she was.  She instructed Clement to gain access to Becky Wong and if that proved impossible, to do whatever was necessary to secure her release.

224.  In my view, such beliefs on Chui’s part are perfectly consistent with the impression which she may reasonably have gained from Becky Wong.  Chui did not invent or exaggerate anything that Becky Wong had said.   Assuming Clement’s account is complete, it is true that she did not tell him that Becky Wong had said she was “safe and sound”, but at the same time, she also omitted any mention of Becky Wong saying that she was hiding in the toilet and using a clandestine SIM card to make the calls.  One might add that given Chui’s lack of experience in the ways of the world, it appears highly unlikely that her alleged co-conspirators would have trusted her to give the solicitors instructions on her own if the conspiratorial idea was to manipulate the solicitors into effecting a perversion of the course of justice.

225.  The action which Clement decided to take after seeing Chui plainly would have had no such result.  He drafted a moderately worded letter to the ICAC which he intended to send off the next day.  It stated:

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

Can you please pass a copy of this letter to Ms Wong and ask her to contact our Mr Clement by telephone if she wishes to take legal advice.”[128]

226.  The next relevant event was Chui’s arrival at the FCC and her recounting of what had happened to Egan, via Lam’s interpretation.  As we have seen, Egan then secured instructions for himself to make a visit to the ICAC and, after some heated exchanges with ICAC officers, he wrote the letter of complaint.  Egan went substantially beyond Clement’s understanding of Chui’s instructions when Egan claimed that he had instructions from her that Becky Wong “was adamant that she was being detained against her will and that she wished to leave ‘protective custody’”.  According to Clement, Chui had only said that she was concerned as she felt Becky Wong did not want to be where she was.  Chui was not suggesting that any “adamant” demand to be released had been made by Becky Wong, but was only giving her own impression of Becky Wong’s situation.  Chui was of course not present when Egan wrote the letter of complaint and it is open to considerable doubt whether Egan correctly understood or reflected what Chui was saying.  The wording might of course simply represent a form of tactical advocacy in a letter designed to pressurize the ICAC into letting him see Becky Wong.  Clement said that it was the first time he had heard of such instructions.

227.  The following extract from Egan’s evidence-in-chief gives no grounds for any confidence that his letter accurately reflected Chui’s instructions:

“Q.     Three, that Mrs Becky Wong was adamant she was being detained against her will.  She wished to leave protective custody.  I’ll come to that term in a moment.[129]  And (d) that Becky Wong told Mandy that she would contact her again on Monday.  Now, from whom did you receive those instructions?

A. I received those instructions partly through Andrew Lam who in turn relayed them from Mandy, but mainly I got them from Raymond Lam.  It was a double process but mainly Raymond Lam.”

228.  Though resting on insecure ground, the letter gained currency through no act on Chui’s part.  Egan gave it wide circulation, providing copies to the Police and to journalists, as well as reading it out at the various habeas corpus hearings and exhibiting it to Chung’s affirmation.  Its contents therefore acquired a life of their own and cannot, in my view, properly be attributed to Chui.

J.2  The influence of Chung: 14-15 July

229.  The important role played by Chung in the development of events is described in Section D.5 above and represents the next phase of the events concerning Chui.  After receiving Becky Wong’s phone call just after midnight, Chung met up with Derek Wong and then contacted Egan and told him that Becky Wong had spoken to him and that she wanted to get away from the ICAC.  That was, as Chung admitted, a lie.  Egan no doubt took what Chung was saying as confirmation of his instructions.  Egan passed the message on to Clement, telling him that he would be making a second ICAC visit on the instructions of C K Mok.  Clement’s reaction is significant.  He had previously thought Chui’s instructions equivocal, but he thought the position had become clear “now Becky Wong had told Chung that she wanted to see him”. 

230.  The unsuccessful second visit by Egan has been described.   Chung then added to his fabrication by telling Egan that Becky Wong was previously known to him, and that she wanted to get away from the ICAC.

231.  It was on the strength of Chung’s version of the midnight phone call from Becky Wong that the habeas corpus application was launched.  It was initially supported only by Chung’s affirmation,[130] parts of which he has admitted to be untrue.  The untrue portions included his statements that Becky Wong was known to him as he had previously been contacted by her in relation to a non-criminal matter; that she had said she was “being kept by ICAC people”; that he had the impression that she was scared and uncomfortable with her situation and did not want to be here; that she asked to see a lawyer; and that he believed she was in ICAC custody at an unknown place. 

232.  The story had obviously been ratcheted up by Chung’s lies.  No longer was it merely Chui saying that her impression was that Becky Wong did not want to be where she was.  Nor was it merely Egan saying that his instructions were that Becky Wong was adamant that she was being detained against her will and that she wished to leave ‘protective custody’.  It was now a solicitor’s clerk saying on affirmation that he knew Becky Wong since he had previously given her legal assistance and that she had contacted him because she was being held by the ICAC in an unknown location and wanted to see a lawyer.

233.  That was the basis on which Egan opened the applications before Yam J and it was because of differences between what was stated in Chung’s affirmation and what Ryan was submitting from the bar that Yam J decided to grant the writ.  It was also the basis on which the Court of Appeal decided to grant a limited stay until 4.30 pm, criticising the ICAC for not having put in evidence of its own.  When Yuen JA asked Egan why there was no evidence from Chui, Egan replied that this was because they had “a later piece of information from the solicitor’s clerk Frankie Chung” indicating the greater importance attributed to Chung’s evidence.  Chung’s affirmation was also the basis on which Hartmann J decided on 15 July to hold a substantive hearing on the following day.  It has been said that history is but a fable agreed upon.  But Chui was not the author of the fable which formed the basis of those applications to the court.

J.3  15-16 July: Chui’s affirmation and her SMS messages

234.  Chui’s affirmation must be read against the background set out above and bearing in mind the mechanics of its preparation which have been described in Section D.7 above.  There is no reason to believe that Chui, any more than Egan, Clement and Raymond Lam, knew that Chung was fabricating his account of what Becky Wong had told him.  Becky Wong had still not emerged and it was reasonable for Chui to believe that Chung’s reported conversation was in line with the impression she had gained from her Sunday and Monday conversations with her and that there was now express confirmation from a solicitor’s clerk stating on affirmation that Becky Wong was being held by the ICAC and wanted to see a lawyer for help. 

235.  It is true that aspects of Chui’s affirmation are questionable.  However, some such aspects – such as use of words like “snatching” her phone and “confiscation” of her SIM card – were explained as Raymond Lam’s own choice of words which did not necessarily reflect Chui’s instructions.  More importantly, Raymond Lam’s approach was not to work off a verbatim set of instructions, but to make his own “outline” of the “gist” of her evidence and then to write it up on his own, copying and pasting from Chung’s affirmation.  The important statements in paragraph 8 alleging a belief that Becky Wong was in the custody of the ICAC at a place unknown were taken from Chung. 

236.  Chui did not have a good grasp of English and it is clear that Raymond Lam did not take her in any detail through the document he had drafted.  Her visit to M&C offices to finalise it lasted for no more than 5 minutes before the two of them went to another solicitor’s firm to have it affirmed.  It is obviously likely that Chui had little familiarity with legal proceedings and she no doubt signed the document on the assumption that the lawyers knew what they were doing.  If she realised that the affirmation purported to take the story beyond what was within her own knowledge, she no doubt went along with it on the basis of Chung’s version of his conversation with Becky Wong, which was the basis on which the lawyers were operating.  The affirmation does not, as it should, state the sources and grounds of Chui’s belief. 

237.  The four SMS messages by Chui to Becky Wong in the evening of Thursday 15 July (which the latter did not see until later) have been set out in Section D.6 above.  They should, in my view, be read as intended to give Becky Wong moral support and to encourage her to avail herself of the pending habeas corpus hearing to leave the clutches of the ICAC.  As such, they are in themselves neutral so far as the question of Chui’s relevant beliefs is concerned.  They are consistent with both the presence and absence of a genuine belief that Becky Wong was being unlawfully detained.  The key question is whether culpable knowledge or belief on the part of Chui can properly be inferred on the evidence as a whole.

J.4  Interim conclusion as to the case against Chui

238.  In Sweeney v Coote,[131] Lord Loreburn LC, speaking of the standard of proving a civil conspiracy, stated:

“Now, a conclusion of that kind is not to be arrived at by a light conjecture; it must be plainly established.  It may, like other conclusions, be established as a matter of inference from proved facts, but the point is not whether you can draw that particular inference, but whether the facts are such that they cannot fairly admit of any other inference being drawn from them.”

239.  The requirement is obviously no less strict where a criminal charge is concerned.  In Kwan Ping Bong v. R,[132] Lord Diplock said:

“The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling – one (and the only one) that no reasonable man could fail to draw from the direct facts proved.”

240.  In Tang Kwok Wah v HKSAR,[133] it was acknowledged by this Court that Lord Diplock’s statement was incontrovertible.

241.  It follows that the inference drawn in the courts below that Chui knew or believed that Becky Wong was not unlawfully detained and did not seek release from the ICAC, had to be the only reasonable inference which could be drawn on the evidence.  On the basis of the foregoing review, it is my view that the evidence against Chui falls substantially below the mark and her conviction cannot stand. 

242.  Chui’s impression, gained from Becky Wong’s mixed and possibly misleading messages, that Becky Wong did not want to be where she was is convincingly recorded by Clement and was not falsified by other evidence.  Becky Wong’s “safe and sound” statements are not an adequate basis for drawing the inference.  The developments which then followed were driven by Egan and Chung and not by Chui.  Those developments were most potently animated by Chung’s lying account of what Becky Wong had told him and it is perfectly plausible that Chui, no less than Egan, who has been acquitted, and Clement and Raymond Lam, who have never been implicated, was taken in by Chung’s purported confirmation that Becky Wong was being unlawfully detained and wanted assistance from a lawyer.  Chui’s affirmation, prepared in a less than satisfactory way by a trainee solicitor who was strongly influenced by Chung’s version of events, does not make good the inference.

K.  The nature of the purported conspiracy

243.  As discussed in Section F above, the conspiracy charged boils down, in relation to Lam and Chui, to the allegation that, as part of their purpose of perverting the course of justice in relation to prospective criminal proceedings concerning Derek Wong, they agreed to take action designed to influence Becky Wong against providing the ICAC with assistance or information, thereby hindering those criminal proceedings; and that the intended means of achieving that purpose was the making of a habeas corpus application which they knew or believed to be a sham since they knew or believed that Becky Wong was not in fact unlawfully detained and did not seek release from the custody of the ICAC.  Their knowledge or belief has been dealt with.  This Section addresses the question whether a conspiracy to perform acts of the nature charged is made out on the evidence. 

244.  The instrumentality of the alleged conspiracy can only have been Egan, (acting on the instructions of Clement and C K Mok).  He was of course charged as a conspirator, but the Judge found that the relevant knowledge on his part was not proved.  Nonetheless, it is possible that he was being manipulated (along with his solicitors) by the alleged conspirators as the channel for achieving their conspiratorial purposes.  What those purposes were may therefore be inferred from what Egan tried to achieve: Were his acts designed to result in pressure on Becky Wong to stop helping the ICAC and to refrain from acting as a prosecution witness in the possible criminal proceedings?

245.  The first relevant act by Egan was his visit to the ICAC on 13 July.  There, he said to officers that more than 48 hours having passed, he believed that Becky Wong was being unlawfully detained.  He demanded to be given immediate access to her, threatening that he would otherwise make a report to the police and launch habeas corpus proceedings.  Egan repeated that demand and those threats in his letter of complaint.  The same thing happened during the visit made on 14 July.  This time, Egan stated his purpose on the phone to Ryan, saying that “all he wanted was access to Becky Wong to ascertain her status”.[134]  Pausing here, none of the aforesaid steps constitute acts designed to influence Becky Wong in the manner alleged (or at all) or to effect any other unlawful object for the purposes of a conspiracy to pervert the course of justice.  If, whether through Ryan or by some other means, Egan was given access to Becky Wong and simply succeeded in ascertaining what her status was, the alleged conspiratorial purpose would not have been achieved. 

246.  When Egan appeared before Yam J on 14 July, his explanation of what he had been seeking to do on his ICAC was as follows:

“All he wanted was, with instructing solicitors, access to Becky Wong so that he could say to her, in the presence of ICAC officer, whether she wanted to stay with the ICAC or whether she wished to accompany him to leave the ICAC.  If she wanted to stay with the ICAC, that was the end of it; if she elected to come with him, that was also the end of it.”[135]

That again falls short of the conspiratorial purpose alleged.

247.  A difficulty that the prosecution faces is that habeas corpus proceedings do not easily lend themselves to being abused as a vehicle for pressurizing a potential witness.  This was demonstrated at the hearing on 15 July by Yam J’s response to Ryan’s expressed anxiety as to the possible intimidation of Becky Wong by persons “eyeballing” her if she were to come to court.  Yam J signed the writ while directing that Becky Wong be brought to court using the CSD channel without being exposed to the public; that a video link should be used if she so requested and he made the “tight-lipped order” extracting undertakings from counsel.[136]  This illustrates the limits of what might be achieved where a habeas corpus application is taken to a successful conclusion.  The alleged conspirators could not have been confident that such success would provide a platform for exerting the allegedly intended influence on Becky Wong.

248.  Egan’s purpose was stated when, in addressing Yam J, Egan :

“... said that he accepted that it was desirable that the matter be heard in chambers and Becky Wong be interviewed by His Lordship and not by counsel.  If having been fully apprised of her rights, she said to His Lordship that she wanted to remain in the WPP and wanted to remain with the ICAC, he would then withdraw the proceedings.”[137]

He was therefore not seeking direct contact with, let alone an opportunity to influence, Becky Wong.  The course he proposed obviously cannot be said to be in furtherance of the alleged conspiracy.

249.  When Egan came before Hartmann J on 15 July, he reiterated that “...he would be happy with what Yam J was going to do, ie, to tell her that she was free to express her option in the court.”[138]

250.  Egan was therefore consistently saying that he was content not to say anything to Becky Wong himself if she were brought to court and that he would be happy if the Judge were to ascertain from her what her status was.

251.  He departed from that position briefly when, on the second appearance before Hartmann J, Egan told the Judge that Ryan had indicated that he would require Egan’s witnesses to attend for cross-examination on their affirmations and that he had accordingly indicated to Ryan that he might seek to cross-examination Becky Wong.[139] 

252.  It is however clear that Egan dropped that suggestion.  He told Hartmann J:

“... that all he had asked over the last two days was to let her come to court and to tell his Lordship in the clearest terms so that there was absolutely no ambiguity that she was perfectly happy to be where she was.”[140]

He went on to say that he was prepared to let his witnesses be cross-examined without seeking cross-examination of Becky Wong:

“... if his Lordship was concerned that effectively the court was not being duped, then surely the way to resolve it was for him to make his two witnesses for cross-examination, and Becky Wong be produced.  He did not even need to cross-examine her.  His Lordship could ask her four or five sensible, neutral questions to ascertain whether or not she was happy and appreciated the fact that she was a free agent and could walk out of the situation anytime she liked.”[141]

253.  Since Hartmann J was satisfied on the affirmation evidence that Becky Wong was not being unlawfully detained, she was not brought to court and the habeas corpus proceedings came to an end.  This is another indication of how unpromising a vehicle such proceedings are for conspirators seeking to use them as a means of “getting at” a witness.

254.  Mr Wilson, supporting a view expressed by the Judge, sought to argue that the bringing of the habeas corpus proceedings in itself was capable of being regarded as the intended instrument for influencing Becky Wong since it was in evidence that she was a “fragile” person and that she had cried when she heard about the existence of those proceedings.

255.  There are serious difficulties with that argument.  In the first place, the evidence as to why Becky Wong was in tears on the two relevant occasions (on 14 and 16 July) is not wholly clear.  It cannot be said with any confidence that this was because she became inclined to stop cooperating with the ICAC as a result of hearing about the habeas corpus proceedings. 

256.  The context of Becky Wong crying on 14 July was the taking of a statement from her by ICAC officers at Ryan’s request.  It will be recalled that Becky Wong had spoken surreptitiously to Chung in the early hours of that morning and she was now told that that “someone had applied for habeas corpus on her behalf”.  What the Judge then said was this:

“She was upset and cried when she heard about it.  The ICAC officers comforted her.  In her mind, she queried whether she had created all the trouble.  She thought of withdrawing from the WPP, but she did not tell the ICAC.

Becky Wong said the ICAC officers asked whether she had talked to lawyer Chung and she said yes.  The ICAC officers were not pleased, but they did not have any particular response.”[142]

257.  While it is true that Becky Wong said she cried when she heard about the habeas corpus application, it was in the context of her guiltily admitting to having talked with Chung and obviously feeling embarrassed at having “created all the trouble”.  It does not support the alternative theory of how institution of the proceedings might be sufficient to influence her in the manner alleged.

258.  As to Becky Wong crying on 16 July, the Judge stated:

“On 16 July, Becky Wong cried again and considered withdrawing from the WPP because of the habeas corpus proceedings.  However, she did not tell the ICAC because she rejected the idea, as she was afraid of losing ICAC protection.  Becky Wong said throughout July, she never told the ICAC or anyone else that she did not want to be in the WPP.  Becky Wong only first mentioned to the ICAC she had thought about leaving the WPP in her statement which started on 5 August and was completed on 16 August 2004.”[143]

259.  The Judge’s statement that Becky Wong cried again and considered withdrawing from the WPP “because of the habeas corpus proceedings” is ambiguous.  It could well be that she once more felt embarrassment at having been the cause of “all the trouble” represented by those proceedings.  Or another plausible reason for her being upset relates to her emotions about being in the WPP (which, on any view, must have been a cause of stress) and the uncertain consequences of leaving it.  Both of those possibilities find some support in the passage in the evidence upon which the cited paragraph in the Judgment is evidently based.  It runs as follows:

Q. .... Now, do you recall whether when you were giving the statements to the ICAC officers, whether at any stage you had cried and you had told them you didn’t want to continue with the witness protection programme?

A. I did cry.  It is after 14th and 16th when I knew that I would join the witness protection programme.  My emotion was...

COURT:  Sorry.  “After I heard about the habeas corpus proceedings”?

INTERPRETER:  Yes, habeas corpus proceedings.

My emotion was not very stable, so I cried but I did not cry when I gave the statement.

COURT:  All right.  One moment.  “Gave the statement,” you mean the statement of 5 August?

A.   Correct.

Q.   So are you saying you cried on both days, 14th and 16th?

A.   Yes.

Q. And did you notify the ICAC on both dates that you wanted to withdraw from the protection programme?

A. No.  Every time it was I who thought about it by myself.  I only raised the matter with them on 5 August.

Q. If this thought did cross your mind on the 14th and the 16th and you were troubled, why didn’t you notify the ICAC officers about what you were thinking about?

A. But I was thinking about that by myself but at that time I was considering about my safety.  If I withdrew from the witness protection programme, what about my family members?  And I myself decided not to consider it.  So I...

COURT:  Sorry.  You used “ban” as in English B-A-N, isn’t it?

A.   I rejected the idea.

COURT:  So all right.  “I rejected the idea.”  Rejected the idea of withdrawing.

A.   Yes.

Q.   Did the officers present ask you why you were crying?

A.   Yes, they even comforted me.

…

Q. After you cried, they comforted you but did you give them any reason as to why you were crying?

A.   Yes.

Q.   And what was the reason you gave them?

A. I was very upset.  I had a lot of queries as to whether it was I who created so much trouble.

260.  Becky Wong’s first answer was that she cried when she knew that she would join the witness protection programme, which I would consider a wholly understandable emotional response.  It is followed by a somewhat puzzling intervention by the Judge and the Interpreter bringing in a reference to it being after Becky Wong heard about the habeas corpus proceedings.  Thereafter, Becky Wong’s evidence concerned the questions she had been asking herself about staying within or leaving the programme and the consequences that her leaving might have on her family.  In the last answer, she reverts to saying that she was upset and had many queries “as to whether it was I who created so much trouble”, which suggests that she was referring again to her regretted conversation with Chung as the source of the trouble.

261.  The second difficulty with Mr Wilson’s alternative way of putting the case on “influence” relates to the evidence of “fragility” and of who might have known of any relevant fragility.  The prosecution’s proposition is that the conspirators used institution of the habeas corpus proceedings as a form of improper pressure to make Becky Wong desist in her cooperation with the ICAC since they knew that she was a fragile person, as later indicated by her tearful episodes.  In fact, the evidence regarding Becky Wong’s “fragility” was only that Derek Wong had said to Chung on 12 July that “Becky Wong was a fragile person, and he was worried that she might make admissions against herself for things she had not done.”[144]  In my view, the Judge rightly held that this piece of evidence justified the following inference:

“...I find that Derek Wong did use the description giving the meaning that Becky Wong was fragile.  And although Derek Wong said that he was worried that Becky Wong might make admissions against herself, it shows that Derek Wong knew that Becky Wong was not a tight-lipped person.  In all the circumstances, the only reasonable inference is that he was worried that Becky Wong might say things damaging to him.”[145]

262.  However, the Judge later went on to draw a series of wholly unsupportable inferences based on that same piece of evidence :

“As to the point that seeking access or asking the court to ascertain Becky Wong’s wishes were mere neutral steps too remote to influence her not to co-operate with the ICAC, I have already said at half time that any application for habeas corpus cannot admit an abuse where it was known or believed that Becky Wong was not illegally detained and did not want release from the ICAC.  Given the propensity of Becky Wong being a fragile person, which must be known to Derek Wong and Chui, and Lam must have from experience known the volatility and sensitivity of arrestees in the process of turning prosecution witness, and with the fact that she did consider withdrawing from the WPP, the only reasonable inference is that the acts were intended to and believed to be and did have the tendency to influence Becky Wong.”[146]

263.  The paragraph confusingly runs together a number of disparate ideas (referring for instance to abuse and knowledge or belief), but appears principally concerned to meet the point that habeas corpus proceedings were too remote a platform on which to base a finding of intended influence.  In doing so, the Judge’s makes a number of unjustified leaps in his reasoning:  He jumps from Derek Wong’s comment to Chung (which he has correctly interpreted at §565, as noted above) to a “given” that Becky Wong had in some general, unspecified, sense a “propensity” to be “a fragile person”.  And from there, he leaps to the conclusion that Chui must have known this, and goes on from there to the conclusion that Lam must also have known this from his general experience as a lawyer about the sensitivity of “arrestees in the process of turning prosecution witness”.  With respect, the evidence plainly cannot justify the drawing of these inferences.  Far from being the only reasonable inferences to be drawn on the evidence, some of them lack any plausibility as a matter of commonsense.

264.  In my view, in relation to both Lam and Chui, the evidence fails to make out a conspiracy of the nature charged.  It does not establish any agreement on their part to misuse habeas corpus proceedings with a view to influencing Becky Wong to refrain from helping the ICAC and from being their witness in the relevant proceedings.  Nor does it provide any basis for inferring that such was their intention. 

L.  Conclusion as to the conspiracy charges against Lam and Chui

265.  On the abovementioned ground in addition to the grounds I have discussed in Sections I and J above regarding the critical evidential deficiencies regarding their knowledge or belief as to Becky Wong’s status, I would allow the appeals of both Lam and Chui on the conspiracy charge.  I would set aside the orders of the Court of Appeal in relation to the conspiracy charges and quash their convictions on those charges.

266.  Answers to the certified questions appear sufficiently from the discussion in Sections E, F and G above.

M.  The other appeals

267.  I have had the benefit of reading in draft the judgments of Mr Justice Bokhary PJ dealing with the question of attempted perjury and of Mr Justice Gleeson NPJ dealing with the attempted disclosure and respectfully agree with the reasoning, the conclusions and the orders proposed in their respective judgments.

268.  I have also had the benefit of reading in draft the judgment of Mr Justice Litton NPJ and, as indicated above, respectfully agree with his comments regarding the dangers inherent in the way the Judge dealt with the no case to answer submissions as part of his final judgment. 

269.  I am also inclined to agree that the statement of Tang VP at §94 of his judgment to the effect that a person’s status as a participant in the WPP “does not in any way affect his position as a witness” may be too broad.  However, I have, with respect, considerable reservations regarding Litton NPJ’s observation that if a solicitor acting for a defendant in a prospective murder trial were to state to the approving authority that he was so acting and then to ask to be given access to interview a person who, as it turned out, was within the WPP, “The authority is bound to decline”.  Litton NPJ draws a distinction between the case of the solicitor making “a bald demand” and the case of a solicitor who provides the approving authority with an explanation as to why he wants to interview the protected witness, such as because he is thought able to provide alibi evidence for his client.  In the latter class of case, he says, it is recognized that the “competing interests” of security for the witness and a fair trial for the solicitor’s client “might begin to emerge”.

270.  One can see at once that a demand for immediate access to a person who turns out to be a participant in the WPP cannot possibly be complied with: any such request must obviously be referred to the approving authority and any access granted would plainly have to be subject to safeguards for ensuring the security of the protected witness.  Such safeguards obviously cannot immediately be put in place.  And it may be that before sensible arrangements can be made, it would be necessary, pursuant to lawful authority or reasonable excuse, to inform the solicitor requesting access that special arrangements are needed by virtue of the witness’s status as a participant in the programme.

271.  I do not think that the public interest in preserving the security of a protected witness should be regarded as one which “competes” with the public interest in ensuring that the defendant in the murder case has a fair trial.   In my view, the proper response of the approving authority to a request for access in the postulated case is not to decline the solicitor’s request, but to recognize the importance of both interests and to take steps designed to accommodate them both. 

272.  Support may be found for this approach in certain provisions of the WPO itself. 

273.  Thus, section 15 deals with the situation where a witness has been given a new identity or been relocated under the programme and where a law enforcement officer notifies the approving authority “that the participant has been arrested or is liable to arrest for an arrestable offence”.  The Ordinance expressly provides[147] that if the approving authority considers it appropriate in the circumstances, he may “allow officers of the law enforcement agency to interview him”.

274.  And section 18(2) provides that “if it is essential to the determination of legal proceedings under or in relation to a law of Hong Kong that the judge or magistrate presiding over the proceedings be advised of a participant's location and circumstances”, the approving authority, officers working with him and any other public officer or person performing functions in relation to the WPP “shall disclose the relevant information to the judge or magistrate in chambers, but the person shall not disclose the information unless he and the judge or magistrate are the only persons present”.  Section 18(3) then provides that the “judge or magistrate shall not disclose any information disclosed to him under subsection (2) otherwise than in accordance with this Ordinance”.

275.  The abovementioned provisions show that, important though security concerns regarding protected witnesses are, they do not override, but must accommodate, the demands of the due administration of justice.   It would only be in the rarest of cases that section 18(2) would be engaged since it does not merely involve obtaining evidence from the protected witness but actually disclosing his or her location and circumstances.  It must a fortiori be within the statutory contemplation that a protected witness may, subject to proper safeguards, be approached for information and for evidence which does not impinge upon the secrecy of that witness’s location or circumstances.

276.  Both of the public interests mentioned above must inevitably be addressed in all cases where a solicitor, acting in furtherance of his professional duties, seeks access to a witness who is in the programme.  I am unable to accept that those interests should only possibly be recognized where an appropriate explanation of the defence purpose is provided and not where there is a “bald” demand for access.  The “baldness” of a demand is likely to be due to the person making the demand simply being unaware of the witness’s involvement in the programme.  The unqualified or “bald” form of the demand cannot justify a blanket rejection of access to the prospective witness.   

277.  Moreover, conditioning access to a witness on there being an explanation acceptable to the approving authority or some other law enforcement officer as to the reason for the requested interview would, in my view, be open to objection in principle.  The ability of the solicitor to assemble evidence for the defence in the hypothetical murder case is of course essential to the proper administration of justice and to a fair trial for his client.  It is a contempt for anyone deliberately to prevent a solicitor from carrying out such professional duties.[148]  It should not in principle be necessary for a solicitor to disclose the nature of the defence being contemplated as a condition of being given access to a potentially material witness.  It ought to be sufficient (unless there is reason to believe that the solicitor is not acting in good faith) for the solicitor to say, as an officer of the court, that such witness is believed to have information which may be of importance to the defence.  Even in alibi cases, section 65D(8) of the Criminal Procedure Ordinance[149] does not require notice of the particulars of an alibi to be given to the prosecutor until “at least 10 days before trial”.

278.  Of course if access to a protected witness were to be given, it would have to be on conditions satisfactory to the approving authority to ensure the security of the witness concerned.  The interview might, for instance, be conducted by video link, or by some other method designed to remove any risk of disclosing the location or new identity, if any, of the witness.  It ought to be possible, by employing appropriate means, to reconcile both of the public interests mentioned above.  That is an outcome far more satisfactory than having the case against the suspected murderer stayed because he has been denied a potentially vital witness and cannot have a fair trial.

279.  Litton NPJ stresses that a relevant request would have to be determined by the approving authority and could not be acceded to by unauthorised ICAC officers.  That proposition can readily be accepted.  However, all it means is that the request has to be referred to the properly authorised officer who ought then to examine how the two relevant interests can be accommodated in the circumstances at hand.  It does not justify the solicitor being turned away summarily without more on the ground that the staff approached lacked authority to grant the request.  Indeed, unless the solicitor knows that the witness is in the programme, he cannot be expected to know that he has to address his request to the approving authority or some other particular officer.

280.  I respectfully agree that application of the principles discussed in Section E above requires modification – but only to the extent that account has to be taken of the status of the witness as a participant in the WPP so that the well-established rights of access are exercised subject to proper safeguards for the security of the witness.  When access is given with such safeguards, the principles discussed operate with their full vigour and give guidance to practitioners as to what is and what is not acceptable when approaching a witness.

281.  In the present case, however, the questions raised by Litton NPJ do not actually arise for decision.

Mr Justice Litton NPJ:

The 1^st Charge: Conspiracy

282.  The conspiracy formulated in the 1^st charge, stripped down to its essentials, had this criminal objective: To influence Becky Wong against being a witness in the prospective criminal trial in which Derek Wong was the prime suspect.  To achieve this object, the conspirators had to gain access to Becky Wong.  Had the conspirators succeeded in attaining their objective, the ICAC would have been deprived of a key witness at the prospective trial (the “Semtech trial”) Hence their action had the tendency to pervert the course of justice: which was what the conspirators intended.  If proved, this was clearly a crime.

283.  As alleged by the prosecution, the conspiracy evolved in this way: Derek Wong was released on bail on the afternoon of Sunday 11 July 2004 and soon thereafter met up with Frankie Chung, the solicitor’s clerk, when the plot was hatched.  Hence, the relevance of the date 11 July 2004 as the commencement date of the conspiracy in the 1^st charge.

284.  By the following day – Monday 12 July 2004 – Ms Mandy Chui (Chui) had allegedly joined the conspiracy.  She was Derek Wong’s “girl friend” and a close friend of Becky Wong whom she treated as her “elder sister”.  She made use of this close friendship with Becky Wong to keep in touch with her by telephone.  From these telephone conversations she learnt that Becky Wong had made incriminating statements to the ICAC against Derek Wong.  She then sought legal assistance – all paid for by Derek Wong – to gain access to Becky Wong.  She made a false affirmation in support of the application for habeas corpus: Doing all this with the object of influencing Becky Wong against cooperating with the ICAC as a prospective witness against Derek Wong at his future trial.

285.  As alleged by the prosecution, the lawyers were then brought into the conspiracy: Firstly, Mr Andrew Lam (Lam), sometime in the afternoon of Tuesday 13 July 2004, at his first meeting with Derek Wong at his own office. Chui joined them a little later that afternoon and the three of them went across to the offices of Messrs. Massie & Clement with the object of using those solicitors to gain access to Becky Wong.  Then Mr Egan (Egan) joined the conspiracy when the co-conspirators Derek Wong and Lam had left the offices of Massie & Clement and had gone across to the Foreign Correspondents Club and met Egan there.

286.  The steps that were taken thereafter – demands for access to Becky Wong made at the ICAC headquarters, report made at the Central Police Station of unlawful detention, application to the High Court for the writ of habeas corpus – were all allegedly steps taken to carry out the conspiracy: First to gain access to Becky Wong and then to influence her.

287.  The trial judge found the conspiracy proved as against Derek Wong and Frankie Chung: A finding unchallenged now on appeal.  The judge acquitted Egan on the conspiracy charge, being in doubt as to whether Egan might have been misled by the false information in Frankie Chung’s affirmation used in support of the habeas corpus application.  This left the findings of conspiracy proved as against Chui and Lam, now the subject of appeal in this Court.

288.  I have had the advantage of reading in draft Mr Justice Ribeiro PJ’s judgment and agree with his formulation of the specific intent, as set out in his §146, which the prosecution had to prove as against Chui and Lam in order to make good the conspiracy charge in relation to each of them.

Case Against Lam

289.  As regards Lam, the evidence has been closely analysed by Mr Justice Ribeiro PJ in §154-169, §178-180, §189-192 (the “Grissini Lunch”) and §197-209 (the testimony of Aaron Nattrass), and I cannot hope to improve upon that analysis.  What is striking about the trial judge’s Reasons for Verdict in convicting Lam on the conspiracy charge is that he did not seem to have weighed the inherent unlikelihood of (i) Lam joining the criminal conspiracy within a couple of hours of his first meeting with Derek Wong and (ii) Nattrass having a reliable and accurate recollection of things allegedly said by Lam at the party in Egan’s home on 30 August 2004.

290.  The suggestion that Lam was “calling the shots” behind the scene was mere supposition, unsupported by clear evidence.  Ma, CJHC regarded Lam’s professed “conflict of interest”, when he referred Chui to Mr Clement as a client, as “a critical piece of evidence” (§264) in proof of Lam’s guilty mind.  For reasons which Ribeiro PJ has elaborated upon in his judgment (§174-177), Ma CJHC’s analysis is unsound.  I would go further: Even assuming that Lam was wrong in his view concerning the conflict of interest – a point which I will elaborate upon later – this could hardly be evidence of a guilty mind.

291.  Discount the evidence of what Lam had allegedly said at the Grissini lunch and at Egan’s party on 30 August, the evidence implicating him on charge 1 evaporates to virtually nothing.

Case Against Chui

292.  As regards Chui, the central plank of the prosecution case against her was that she knew that Becky Wong was not held by the ICAC against her will and that the campaign to gain access to Becky Wong was a sham: the true object being to influence Becky Wong against co-operating with the ICAC and being a witness in the eventual prosecution of Derek Wong.  Mr Justice Ribeiro PJ has analysed the evidence bearing upon Chui’s state of mind in §217-237, §241-242 and I cannot hope to improve upon it.  I agree with his conclusion that the evidence, taken as a whole, was insufficient to ground Chui’s guilt on the 1^st charge.

Charge  2 Against Chui:  Perjury

293.  I agree with Mr Justice Bokhary PJ’s judgment and have nothing to add.

The Trial Process

294.  The reasons for verdict in this case took the trial judge three days to deliver in court.  As transcribed it came to 679 paragraphs.  It contains a feature which, in my experience, is quite unprecedented.   §362 is headed “Submission of no case” and in the following 114 paragraphs, up to §477, the trial judge appears to have been dealing with submissions of no case to answer.  The oddity is this.  At trial the prosecution concluded its case on 28 April 2006 and this was followed by submissions of no case which lasted several days.  On 8 May the judge ruled that each of the defendants had a case to answer and the trial proceeded in the normal way.  None of the defendants testified except Egan.  The trial concluded on 18 May.  The judge began giving his Reasons for Verdict on 12 June.  It was only in the course of delivering those Reasons for Verdict, finding each of the defendants guilty (and acquitting Lam on charge 3, and Egan on charges 1 and 3) that the judge gave what appears to be his elaborate findings on the submissions of no case.

295.  I say that the judge’s approach in this case is unprecedented for this obvious reason.   The determination of whether there is a case to answer is a question of law (see p. 679 vol. 9 Halsbury’s Laws of Hong Kong 2007 reissue).  The test for whether there is sufficient evidence at that stage is not whether the judge believes the witnesses for the prosecution.  The jurisdiction of the District Judge is similar to the jurisdiction and powers of the Court of First Instance, as if the accused person had been committed to the District Court for trial on indictment (s.75(s) District Court Ordinance, Cap. 336). The invariable practice of the judge in a jury trial is to give a bare ruling on the submission of no case unless some elaboration is needed for guidance as to further conduct of the trial.  The judge, presiding over a jury trial, has no fact-finding function.

296.  At the end of the prosecution evidence, when deciding whether the defendant has a case to answer, (that is, at what Fung C DJ called “half time”), the judge is concerned with available inferences, that is, inferences that could be drawn, if the state of the evidence remains unchanged.    At the end of the case (“full time”, to use the corresponding term) the judge is concerned with a different question: the inferences that the jury draws in the light of the whole of the evidence.  The procedure followed in this case was very likely to lead to a confusion of those two different functions and, in particular, to passing from an opinion that an inference was open (which is a point of law) to a conclusion that the matter to be inferred has been established beyond reasonable doubt, without sufficient explanation of the reasons for that conclusion.

297.  The problem with Fung C DJ’s unorthodox approach in this case can be illustrated by reference to §412 of the Reasons for Verdict concerning Lam’s guilt.  There the judge referred to Derek Wong and Lam going together with Mandy Chui to Messrs. Massie & Clement’s office on the afternoon of Tuesday 13 July 2004.  The judge then said:

“From experience, D3 [Lam] must have realized the possibility of Becky Wong being persuaded to cooperate with the ICAC.”

He then went on in that paragraph to recite Clement’s evidence to the effect that Lam had introduced the client Mandy Chui to his firm “because of possible conflict of interest”.  The judge added:

“But if D3 [Lam] really believed in the instructions that Becky Wong was illegally detained by the ICAC and she wanted to get out ……there could hardly be any conflict of interests”.

This appears to be a provisional finding of a degree of guilt on Lam’s part.  This appearance is reinforced by the next sentence in §412 where the judge referred to an earlier finding he had made under the heading “Grissini Lunch” (§332 to 339) concerning a meeting attended by a Mrs Reimer Lau and Lam when he (Lam) had “criticized the modus operandi of the ICAC” and said that he had planned the habeas corpus proceedings.  Then the judge added:

“Of course, the truth of D3’s statement to Mrs Reimer Lau on his belief of abuse by the ICAC remains to be assessed qua jury function.  But it shows that D3 saw nothing wrong in so telling Mrs Reimer Lau” (emphasis added).

298.  The picture of Lam’s participation in the conspiracy to pervert the course of justice is built up in §415 where the judge said:

“It is the prosecution case that D3, solicitor for D1, was calling the shots behind the scene”. 

Referring to other pieces of evidence, the judge added:

“The inference is that D3 stayed behind the scene …..”

299.  One of the main planks of the prosecution case against Lam is the evidence of Aaron Nattrass concerning a conversation he had with Lam on 30 August 2004 when Lam had allegedly told him (Nattrass) that Chui “had forgotten her lines” and “had been paid and well taken care of”.  The judge, in para §417 added:

“I find that the credibility of Aaron Nattrass is a matter for the jury function.  Whatever dissatisfaction and criticism Mr Clement may now have against Aaron Nattrass, the fact remains that he was employed as the managing clerk of Massie & Clement for almost 10 years.  Nattrass had nothing to gain but everything to lose in giving evidence in this case.

418.  The evidence taken together supports an inference of guilt against D3, fit to be left to the jury function.”

(Emphasis added).

300.  Reading the 114 paragraphs as a whole, comprising his findings on the submissions of no case to answer, the impression is inevitable that the judge, at what he called the “half time” stage, had made provisional findings of guilt concerning Lam.  Adopting such an erroneous approach, it was but a short step for the judge to convict when Lam chose not to testify.  At §636 the judge said:

“As I have accepted the evidence of the prosecution witnesses (whereas in the case of Frankie Chung, to the extent I have indicated above), I find the inferences of guilt discussed at half time can all be taken to their logical conclusions at the ultimate standard of proof of beyond reasonable doubt.”

301.  Here, as can be seen, it was a case of an “inference of guilt” at “half time” sliding into a virtual certainty for the purposes of conviction.  The judge did not appear to have weighed the evidence concerning Lam as a whole, at the close of the defence case, as a jury would have done when properly directed by the trial judge.

302.  The trial judge had a heavy task in this case, bearing in mind the amount of evidence adduced by the prosecution.   He had a dual role to play: judge and jury.  It might have been helpful if he had, at the close of the defence case, borne in mind the role of a judge when summing up to a jury, as mentioned in Stephen’s History of the Criminal Law of England (1996 Reprint) vol. 1 at p455.  It is 

“the act of stating for the jury the questions which they have to answer and of stating the evidence bearing on those questions …..”. 

The questions relate of course in each case to the ingredients contained in the charges before the jury.  This is the point of departure in each case.  If the judge had confined his attention to that, he would have appreciated that much of the evidence so laboriously and conscientiously set out in his Reasons for Verdict warranted hardly a mention, if at all: Such as, for example, the management structure within the ICAC, introduced by way of background.  What has happened in this case, as occurs sometimes in heavy trials, is that the tribunal got caught up in the thick of thin things and lost sight of the main issues.  The inherent probabilities got submerged by trivial details of no evidential weight.

303.  It might be helpful to recall what Blair-Kerr, SPJ said concerning the fact finding role of a trial judge in Kowloon Motor Bus Co (1933) Ltd v. Kong Tung [1973] HKLR 198.  This was said in relation to a civil suit, but is equally applicable in a criminal case:

“I cannot leave this case without repeating what I have said on numerous occasions during the last 10 years viz. that it is of the first importance that every judge of fact should indicate clearly in his judgment not only his findings of fact – primary and inferential – but, as regards his findings of primary fact, to what extent these are based on the view which he has formed of the witnesses’ demeanour and on what he regards as the inherent probabilities and improbabilities of the conflicting stories.”

304.  Fact finding by a tribunal is a forward moving process.  At the starter’s line are the primary facts relevant to the indictment (or to the pleadings in a civil suit).  Most of these, generally speaking, would be non-controversial.  From these, a picture of the inherent probabilities will often emerge.  Take the present case concerning Mr Lam (D3): Is it likely that a solicitor would knowingly enter into a criminal conspiracy with a new client, within the first couple of hours of their first meeting?  From this, and similar circumstances, the tribunal would then move on to evaluate the disputed evidence.  “Evaluate” means just that: To measure, to weigh.  Not every piece of evidence has equal weight.  Here the tribunal is not seeking to penetrate the personality of the witness, to uncover his soul.  In everyday life, how well does one know one’s neighbour?  Is he or she a truthful person?  How well does one know oneself?  When a tribunal in giving judgment recites the testimony of a witness and says “I accept him as a truthful witness”, this is not evaluation: It is a conclusion which might be reached at the end, after weighing the relevant evidence.

305.  As mentioned earlier, fact-finding is a forward moving process.  The tribunal does not start at the winning post and run backwards.  Take the matter of Lam’s state of mind when he referred Chui to his colleagues Messrs Massie & Clement, rather than to take her on himself as a client.  Assume that he was in truth endeavouring at that time to influence Becky Wong, knowing that she was not seeking release from the ICAC; assume that he was intending to stop her from becoming a witness against his own client Derek Wong in the prospective Semtech trial: With such a guilty mind, would he openly take steps to get Becky Wong out of the clutches of the ICAC?  Probably not.  He would disguise his intentions.  He would cover his tracks.  He would not go on the record as solicitor for the applicant.  He would find a compliant colleague, proclaim his honour, profess a “conflict of interest” and hope that his colleague would carry out his ulterior purpose.  All this starts from an assumption of a guilty mind.

306.  Begin the analysis from the starter’s line and the picture changes.  Here is a potential hostile witness Becky Wong who might later on give evidence against his client: Can he properly render professional service to Mandy Chui to seek Becky Wong’s release?  Honest minds might differ on this matter.  Even if, upon fine analysis, he were found to be wrong, and that in truth there was no conflict of interest, it is still not evidence of guilt.  He was simply wrong.  Full stop.

307.  It is at the end of the track that the tribunal gathers together all the evidence.  The inherent probabilities have always to be borne in mind.  Take again the case concerning Lam.  A vital piece of evidence was Aaron Nattrass’s supposed recollection of the few incriminating words said by him at a party in Egan’s residence on 30 August 2004.  This was said to be a purely social evening among friends.  In such a context, how reliable is Nattrass’s alleged recollection?  Did Nattrass go to spend a relaxed evening among friends or did he go as an ICAC spy (which he was) with a view to entrapment?  How much of what he professed to have remembered of the conversation simply wishful thinking?  Distortions?  Embellishment?  These were not questions the trial judge had put to himself.  Nor was this failure much commented upon in the Court of Appeal.  Thus it falls upon this Court to analyse the evidence afresh.

Charges 4 & 5

308.  I have had the advantage of reading in draft Mr Justice Gleeson NPJ’s judgment concerning charges 4 and 5 and agree with it.

309.  I would summarize my conclusions on charges 4 and 5 in this way:

(i)   There was no inconsistency as such between Egan’s acquittal on charge 1 and his conviction on charges 4 and 5.

(ii) As charges 4 and 5 were charges of attempt to commit a crime based upon s.159G of the Crimes Ordinance, Cap. 200, belief in a state of fact, namely that Becky Wong was in the WPP, was an essential component in proof of Egan’s guilt.  Such belief could have been formed when, on the morning of 14 July 2004, during the closed session before Yam J, Mr Ryan had told the court that Becky Wong was in the programme, and then handed copies of the Ordinance to the judge and to Egan.

(iii)   The question then arises: Did the judge properly analyse Egan’s state of mind after such revelation by Mr Ryan?  Insofar as the majority of the Court of Appeal held that there was inconsistency between Egan’s acquittal on charge 1 and his conviction on charges 4 & 5, which formed the basis of Egan’s acquittal on those charges, they were, in my respectful view, wrong.

(iv)  But as to the separate question whether the trial judge had properly analysed the evidence bearing upon Egan’s belief, there was a real problem which the judge never resolved.  Throughout the habeas corpus proceedings before Yam J, and then later before the Court of Appeal (Stock and Yuen JJA) and Hartmann J, Egan was saying that Becky Wong was not with the ICAC willingly.  This could be construed as saying in effect:

“I am not admitting that Becky Wong is a participant in the WPP, but if she were I do not accept that she is in the programme willingly”.

Of course, if there was a clear finding by the judge that Egan believed that Becky Wong was in fact a participant in the programme, in the sense that he believed that the procedures for completing the memorandum of understanding had been done, the fact that Egan thought that Becky Wong was not in the safe house willingly was irrelevant to charges 4 and 5.  Disclosure of information about the identity would still have been an offence under s.17(1) of the Ordinance.  But that was not what the judge found.

(v)    Insofar as the majority of the Court of Appeal found that “republication of already known facts” (see §160 of Tang VP’s judgment) could not in law amount to disclosure under s.17(1) of the Ordinance, that in my respectful view is wrong.  The trial judge’s conviction on charge 5 could not properly be overturned on that ground alone.  Disclosure is nevertheless disclosure whether it be for the first or second time, though the criminality in the offence might diminish with repetition.  I respectfully agree with what Mr Justice Gleeson NPJ says in this regard in paras. 374 and 375 of his judgment.

(vi)  There is a separate problem with the convictions on both charges 4 and 5 arising from the judge’s approach to his findings of fact.  It was never the prosecution case that Egan told Ms Chow that Becky Wong was in the WPP, nor that he believed she was in the WPP.  The “disclosure” found by the judge consisted of things said which “linked” Becky Wong to the programme.  But, in a sense, the court notification itself posted on the notice board and outside the court door could be said to be a “link”.  It contained Becky Wong’s name.  Moreover, Ms Chow had multiple sources of information about the habeas corpus proceedings.  Apart from Egan, she had also spoken to Clement.  She had spoken extensively to other journalists before she wrote her article: other journalists who, in turn, had got their information concerning Becky Wong at a time when the proceedings were in open court.  She had Egan’s letter to the ICAC.  She had all the material for the application.  The information recorded in her notebook could not possibly have all come from Egan.  In these circumstances, the judge erred when he simply accepted Ms Chow’s evidence and rejected Egan’s evidence.  By a majority the Court of Appeal, in effect, so held.

310.  What, in these circumstances, is the proper order for this court to make?  The alternatives are (1) to order a retrial on charges 4 and 5 and (2) to make no order.  In this regard I agree with Gleeson NPJ’s reasoning and I too would make no order for a retrial on those two charges.

Witness Protection Programme

311.  I cannot leave this judgment without making some observations concerning the witness protection programme (WPP).

312.  Many considerations come into play when a person is being considered for inclusion in the WPP.  From the authority’s point of view, one question immediately springs to mind:  What is the quality of the evidence that person might give?  How reliable is he going to be as a witness later on?    Section 5(1) of the Witness Protection Ordinance, Cap. 564, requires the authority to be satisfied that all relevant information has been given by that person before he could be included in the programme.  Hence, the process of interrogation – the taking of “non-prejudicial statements” – could be a very lengthy affair.  Whilst this is going on, the threat of eventual prosecution would be hanging over his head as a suspect.

313.  Inclusion in the programme involves acceptance of conditions imposed by the authority: see s.6(2) of the Ordinance.  A condition might be an agreement by the participant that he would “comply with all reasonable directions of the approving authority in relation to the protection and assistance provided to [him]”: s.6(2)(c).  This could well include restriction on his freedom of movement and prohibition from contact with certain categories of people.[150]

314.  When Egan went “hammering on the door of the ICAC” [151] on the evening of Tuesday 12 July 2004 and demanded immediate access to Becky Wong[152] he made it clear that he was acting on the instructions of Mandy Chui (who was not a suspect in the Semtech investigation).  He told the case officer Daphne Lim that his sole concern was for the welfare of Becky Wong, his client’s partner in a beauty salon, because Becky Wong had been detained for over 48 hours.  He said that if he was not given immediate access to Becky Wong he would make a report to the police and would apply to the High Court for habeas corpus.

315.  Note this: As far as the ICAC was concerned, Egan was not professing to represent a suspect involved in the Semtech investigation; he did not seek access to Becky Wong with a view to getting information from her, or anything of that kind, in order to assist in setting up a defence by a client in the prospective criminal trial.  His letter of complaint to the Head of Operations, written in his own hand that night (10.30 pm) began by saying:

“I have requested access to the above-named [Wong Pui See, Becky] who is being “detained” by you in respect of the “SEMTECH” Operation, supposedly on a voluntary basis.

I have firm instructions however from her business partner, Ms Chui Man-si, Mandy, that Ms Wong is being held against her will and wishes to be released immediately.”

316.  Egan was, at that time, wholly ignorant of the WPP and of the existence of the Ordinance.  As he said to the ICAC, this was a case of false imprisonment; that was the reason why he was threatening to report to the police if he was not given immediate access to Becky Wong.  He was not acting for a prospective defendant, concerned with mounting a defence at the future Semtech trial.

317.  His stance had not changed the following day (Wednesday 14 July) when he presented himself at ICAC headquarters with Frankie Chung, except that this time he had instructions from C K Mok & Co to represent Becky Wong herself.  When he was again not given access to Becky Wong, steps were immediately undertaken to apply for habeas corpus and the ex parte application went before Yam J in open court the same afternoon at 5.30 pm.

318.  There was something intrinsically unsound in Egan’s submissions to Hartmann J, the following day (Thursday 15 July) after he had learnt of the WPP during the closed session before Yam J and had, as he said, studied the Ordinance carefully, when he sought nevertheless to maintain Yam J’s order.  The judge summarized his submission at §264 in this way:

“D4 said one of the problem with the ICAC was they were overzealous.  He said it was highly possible that Becky Wong was surrounded by a bunch of ICAC officers in the safe house saying that they wanted her as a witness, if not, she would be a defendant.  He was just speculating that Becky Wong was going to be compliant and submissive.  D4 said he would be happy with what Yam J was going to do, i.e., to tell her that she was free to express her option in the court.”

319.  Egan had himself been a crown counsel and a prosecutor and was familiar with the process whereby a suspect might eventually become a prosecution witness.  It was inherent in the circumstances in which Becky Wong found herself that she was under pressure.  None of the choices she faced was attractive: To testify might invite retribution: Not to cooperate with the ICAC would expose her to prosecution in the Semtech trial.  She had nevertheless signed the memorandum of understanding, signifying her agreement to its terms.  Nothing in Egan’s submissions to Hartmann J, in exaggerated and emotive terms, could have begun to make out a case of duress, vitiating in law the memorandum which Becky Wong had signed.  The case for the writ of habeas corpus had evaporated to nothing. 

320.  A person participating in the WPP is no ordinary witness.  Participation in the programme means that his personal safety or well-being might be at risk: s.3 of the Witness Protection Ordinance.  I cannot therefore agree with Tang VP in §94 of his judgment when he said:

“the fact that a person has been included in the WPP does not in any way affect his position as a witness”. 

That statement is far too broad.

321.  In the preceding paragraphs of his judgment the learned Vice-President dealt with the circumstances where one party or the other (the prosecution or the defence) sought to interview each others’ witnesses in order to build up a case for their own side in the eventual curial process.  These paragraphs were under the general heading “No Property in a Witness”.  This was in the context of the averment in the 1^st charge:

“with a view to ascertaining what she [Becky Wong] had said to the investigators of the ICAC and influencing her against providing assistance or information to the ICAC.”

322.  The learned Vice-President, in §80-83, dealt at length with R v. Brett Evans & Jonathan Caffrey [2001] EWCA Crim 730 and concluded by saying:

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

323.  As a general statement this is unimpeachable; and, as a general statement, taken out of context, it is almost meaningless.  Furthermore, the problem with this approach is that it is out of phase with the circumstances of the case at trial.  By the afternoon of Tuesday 13 July 2004, Becky Wong had indicated her acceptance of the terms of the WPP by signing the memorandum of understanding.  This was some time before Egan’s first visit to the ICAC headquarters.

324.  Under s.7 of the Ordinance, the approving authority has a statutory duty to “take such action as he considers necessary and reasonable to protect the witness’ safety and welfare”.  The duty extends to a witness being assessed for inclusion in the programme.   It necessarily follows that a witness lodged in a safe house must, to a large extent, be shielded from approaches from the outside world and, in particular, from persons acting for those against whom he might testify later on.

325.  As mentioned earlier we are simply not dealing with a case such as R v. Brett Evans and Jonathan Caffrey referred to in Tang VP’s judgment where on a murder charge, there was a real issue as to whether the deceased had been alive or dead on the date charged in the indictment.  Assume, for example, that the defence in such a case had been baulked in investigating the issue and hence unable to adduce evidence at the trial in support of it’s case.  This might require the judge to stay the proceedings or direct the jury to acquit.  But, in the present case, another crucial factor intervenes: Prime facie, the witness must be shielded from approaches from the outside.  The proposition “there is no property in a witness” needs considerable modification.

326.  Assume that the solicitor for a defendant in a prospective murder trial were to make the following bald statement to the approving authority:

“We act for Mr B, defendant in the forthcoming murder trial.  We know that you have XYZ in a safe house, please give access for us to interview him”. 

The authority is bound to decline.  A bald demand like that could only evoke one possible response.  If the solicitor were to explain why he needed to interview the witness: For example, to assist in establishing an alibi defence, competing interests might begin to emerge: The defence of the accused presumed to be innocent on the one hand, against the safety and welfare of the witness on the other.  Connolly v. Dale [1996] QB 120 referred to in §95 of Tang VP’s judgment is a wholly different case.  There the inquiry agent had free access to the staff of the hostel and could make such inquiries as he pleased, take such statements from them as he pleased.

327.  Counsel submitted to this Court that, as the law recognised “no property in a witness”, the ICAC officers acted wrongly when they refused to convey to Becky Wong the request made by Egan for access to her on the evening of Tuesday 13 July 2004.  This submission is misplaced.  The officers at ICAC headquarters were not the approving authority under the Witness Protection Ordinance.  It was for that authority alone to decide whether access to a witness in the programme, or to a person being assessed for inclusion in the programme, was compatible or incompatible with his statutory duty of protection under s.7.  The ICAC case officer Daphne Lim was acting correctly when she said to Mr Egan:

“I do not have Becky Wong with me.  You can take whatever action you like.” 

And likewise Patrick Ho, Chief Investigator of the ICAC, the following day, to the same effect.

328.  Neither the case officer nor her superiors at ICAC headquarters had authority to yield to Mr Egan’s request.  The Rules and Directions of the ICAC dealing with “Requests for Legal Representation” were simply inapplicable.  I would for my part make no comment on the interesting arguments advanced by counsel Ms Montgomery QC based upon the line of cases such as R v. Kellett [1976] 1QB 372 and R v. Meissner [1994-95] 184 CLR 132 dealing with a very amorphous area of the law.  The principles discussed in these cases cannot be applied without considerable modification to a case involving a witness in the WPP.  But, in any case, discussion of these principles is academic because, as mentioned in §34-36 above, Egan’s demand for access was on one basis only : That Becky Wong was then unlawfully detained.  Full stop.

329.   As regards the general principle, I would simply say this: The so-called “curial process” does not begin only at the court door and interference with an investigation by the authorities could well have the tendency to pervert the course of justice. Counsel submitted that “reasoned argument” directed to a prosecution witness, in order to persuade the witness to change his evidence, is permissible so long as no “improper means” are used.  This is too broad a statement.  In the tough and practical world of criminal investigations I do not know what “reasoned argument” means.  What is “reasoned argument” to some might be an implied threat or hidden promise to another.  What is professed as “true evidence” on one side might be seen as falsehood on the other side.  When Lord Denning MR used the expression “There is no property in a witness”[153] he was using it in the context of a professional handwriting expert: Hence “purchasing his evidence” (see p.1384 line H) was legitimate in that case.  It is difficult to see how “purchasing the evidence” of a prosecution witness by the defence in a case involving organised crime would be proper, or vice-versa.  Truth is an illusive quality.  Cases are sometimes resolved in court where not a single witness told the truth.[154]  As every lawyer knows, the ultimate issue in a criminal prosecution is simply whether the prosecution has proved its case, or failed to do so; the court is not embarked upon an independent search for the truth[155].  In such an environment, to say that it is permissible for the parties, through their legal representatives, to approach each other’s witnesses, to “dissuade them from giving false evidence by reasoned argument”, outside of the context of the particular case, is not helpful.  A police station is not a school room.  The criminal process which begins with an arrest can easily be compromised if the rules governing access to witnesses by legal advisers acting for defendants or potential defendants were relaxed.

330.  The ICAC officers acted with total propriety in this case.  At the end of the day the prosecution of the parties now before this Court for conspiracy failed simply because the evidence linking them to the conspirators Derek Wong and Frankie Chung was too tenuous.

Mr Justice Gleeson NPJ :

331.  At trial, the respondent Kevin Barry Egan was convicted of two offences of attempting to disclose information about the identity of a participant in the witness protection programme (Becky Wong), contrary to s.159G of the Crimes Ordinance, Cap. 200, and s.17 of the Witness Protection Ordinance, Cap. 564.  He was sentenced to concurrent terms of two and a half years’ imprisonment.  By majority, the Court of Appeal allowed his appeal and quashed the conviction.  The first ground upon which the majority in the Court of Appeal acted was that the trial judge’s finding of fact that Mr Egan, at the time of the offences, believed Becky Wong was in the witness protection programme was not supportable and should be reversed.  The prosecution was granted leave to appeal to this Court on the ground that it was reasonably arguable that substantial and grave injustice had been done by reason of the Court of Appeal’s decision.

332.  In the Court of Appeal, and in this Court, although not at trial, the prosecution also made an alternative submission that it was not a necessary part of its case against Mr Egan to establish that he held the belief found by the trial judge.  This raises a question of law.

333.  In the Court of Appeal, the conviction was challenged on other grounds as well.  There were arguments about the concept of disclosure in s.17 of the Witness Protection Ordinance and, in addition, it was contended that the trial judge had not given adequate reasons for his findings as to disclosure and belief.  That contention also was upheld by the majority in the Court of Appeal, and was an additional ground on which Mr Egan’s appeal was upheld. 

The charges

334.  The fourth and fifth charges in the indictment arose out of two conversations that allegedly took place between Mr Egan and a journalist, Magdalene Chow, on the afternoon of 15 July 2004.  According to Ms Chow, the first conversation occurred between 5:34 pm and 5:56 pm, during an adjournment of the hearing before Hartmann J, and the second occurred immediately after the conclusion of the hearing at 6:10 pm.  On each occasion, according to the prosecution case, Mr Egan disclosed information which identified Becky Wong as a participant in the witness protection programme.

335.  In his reasons for judgment, Mr Justice Ribeiro PJ has recounted the history of the habeas corpus proceedings in which Mr Egan was engaged as counsel.  Some repetition is necessary in order to deal with the fourth and fifth charges.  Ms Chow, the Chief Court Reporter for the South China Morning Post, was covering those proceedings, as were other journalists.  Some parts of the proceedings were in open court, and other parts were in camera.  On the morning of 15 July 2004, Yam J had declined an application for adjournment made by Mr Ryan, who was appearing for the ICAC.  Yam J issued a writ of habeas corpus.  That was done in closed court, and both counsel gave confidentiality undertakings.  On the afternoon of 15 July, the matter went before the Court of Appeal, which referred the proceedings back to a judge at first instance; this time, Hartmann J.  During the hearing before Yam J, in camera, Mr Ryan had announced that Becky Wong was in the witness protection programme, that she had signed the requisite memorandum of understanding, and that she was in a safe house.  As it happened, what Mr Ryan said was incorrect, in that, because the memorandum of understanding was not signed by the approving authority until 16 July, Becky Wong had not become included in the witness protection programme on 15 July.  This was not known either to Mr Ryan or to Mr Egan on 15 July.

336.  The offences originally charged against Mr Egan were of disclosing information about the identity of a participant in the witness protection programme.  Each was particularised as follows:

“Particulars of Offence

Kevin Barry EGAN, on or about the 15^th day of July 2004, in Hong Kong, without lawfully [sic] authority or reasonable excuse, disclosed to CHOW Yin-ling, Magdalene, Chief Court Reporter of South China Morning Post, information about the identity of a person who was a participant in the witness protection programme.”

337.  After it was noticed that, on 15 July 2004, Becky Wong had not yet been included in the programme, the charges were amended to charges of attempt, in reliance upon s.159G of the Crimes Ordinance, Cap. 200, which provides:

“(1)    A person who, intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence.

(2)    A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.

(3)    Where a person is charged with an offence, he may be convicted of having attempted to commit that offence even though he was not charged with the attempt.

(4)     In any case where-

(a)  apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence; but

(b)  if the facts of the case had been as he believed them to be, his intention would be so regarded,

then, for the purposes of subsection (1), he shall be regarded as having had an intent to commit that offence.

(5)    This section applies to any offence which, if it were completed, would be triable in Hong Kong other than aiding, abetting, counselling or procuring the commission of an offence.”

338.  The amended fourth and fifth charges were both charges of attempting to disclose information about the identity of a participant in the witness protection programme.  Each was particularised as follows:

“Particulars of Offence

Kevin Barry EGAN, on or about the 15^th day of July 2004, in Hong Kong, without lawfully [sic] authority or reasonable excuse, attempted to disclose to CHOW Yin-ling, Magdalene, Chief Court Reporter of South China Morning Post, information about the identity of a participant in the witness protection programme.”

The Witness Protection Ordinance, Cap. 564

339.  The Witness Protection Ordinance, enacted in 2000, is described in its long title as “An Ordinance to provide for the establishment of a programme for the protection of certain witnesses and persons associated with witnesses”.  In accordance with principles of purposive construction which are well established, and mandated by s.19 of the Interpretation and General Clauses Ordinance, Cap. 1, an interpretation that promotes the object of witness protection is to be preferred to one that would not promote that object, having due regard to considerations of text and context.

340.  The programme is described in s.3 of the Witness Protection Ordinance as one that provides protection and other assistance for witnesses whose personal safety or well-being may be at risk as a result of being witnesses.  Section 7 provides that, if a witness is included in the witness protection programme, or is being assessed for inclusion, the approving authority (a person designated by the Commissioner of Police and the Commissioner of the Independent Commission Against Corruption) shall take such action as he considers necessary and reasonable to protect the witness’ safety and welfare.

341.  Section 2 defines “participant” as a witness who has been included in the witness protection programme.  A witness may be included only if the witness agrees to be included (s.4(2)(b)) and signs a memorandum of understanding in accordance with s.6 (s.4(2)(c)).  The memorandum of understanding deals with prescribed matters including details of the protection and assistance to be provided, provision for termination for breach by the participant, the terms and conditions on which protection and assistance is to be provided, and agreements of certain kinds by the participant.  Section 6(3) provides that a witness becomes included in the witness protection programme when the approving authority signs the memorandum of understanding.  It is the signature by the approving authority of a memorandum of understanding that has previously been signed by the witness that gives the witness the status of a person who is a participant in the programme.  It would be contrary to s.4(2) of the Witness Protection Ordinance if a witness were included in the programme without his or her agreement, but in the ordinary case signature of the memorandum of understanding by the witness signifies agreement.  If the signature of the witness had been coerced, and there was no agreement, then a condition necessary for the lawful inclusion of the witness in the programme would not have been fulfilled. 

342.  The approving authority is empowered to establish a new identity for a participant.

343.  Section 11 empowers the approving authority, subject to review under Part III of the Ordinance, to terminate the protection of a participant.  A memorandum of understanding may include a condition that protection and assistance may be withdrawn if the participant gives written notification of a wish that protection be terminated (s.6(2)(a)(iv)).

344.  Section 17 creates offences.  They include the following:

“17.  Offences

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

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

(b)  that compromises the security of such a person.”

345.  The words “person who is … a participant” are to be understood in the light of the definition of “participant”.  They mean a witness who has been included in the protection programme.  By virtue of s.6, the witness becomes included when the approving authority signs the memorandum of understanding.

346.  By signing a memorandum of understanding, a witness of full legal capacity will signify his or her agreement to be included in the programme.  If such agreement, which is a condition necessary for inclusion, has been procured by coercion, fraud or some other vitiating factor, then inclusion of the witness in the programme is unlawful.  It does not necessarily follow that the provisions of s.17 have no application in respect of such a person.  For example, compromising the security of such a person could still be a serious matter.  Disclosing information about that person could occur in circumstances that fall within the “lawful authority or reasonable excuse” qualification, but that was not in question in the present case.  Furthermore, there may be a wide range of circumstances in which an agreement to enter the programme, whilst not legally vitiated by some factor such as coercion or fraud, is given reluctantly, by a person who could be persuaded to change his or her mind.  It may be expected that in many, perhaps most, cases a witness will be under pressure of circumstances, often including the possibility of prosecution if uncooperative, and of reprisals by people likely to be affected by the evidence of the witness.  By hypothesis, the Ordinance is dealing with people whose personal safety or well-being may be at risk.  As Lord Wilberforce and Lord Simon of Glaisdale pointed out in the Australian case of Barton v. Armstrong[156], in life many acts are done under pressure, sometimes overwhelming pressure, but this does not necessarily mean they are legally involuntary.  A choice between two evils is nonetheless a choice.  The ambiguities in the word “voluntary” were discussed by Windeyer J in Ryan v. The Queen[157].  It is difficult to imagine any agreement to be included in the programme that would not be made in circumstances which the witness would prefer did not exist.  To describe a person as an unwilling participant may cover cases which are not inconsistent with legally effective agreement.

347.  It would undermine the protective purpose of the Ordinance if, in the case of a witness of full capacity who has signified agreement to be included in the programme by signing a memorandum of understanding, the prohibition in s.17 could be avoided by raising, even in good faith, an issue as to whether the witness is a willing participant.  If, in a given case, there is a serious question as to whether such a person has been coerced, or the apparent agreement is for some other reason non-existent, and as to whether the person’s inclusion in the programme was unlawful, habeas corpus proceedings may be a way to test the issue, but s.17 (with its qualification concerning lawful authority and reasonable excuse) still applies.  It is consistent with both text and context, and better serves the purpose of the Ordinance, to read the words “who is … a participant … in the witness protection programme” as meaning a witness who has in fact been included in the programme, that is, one who has signed a memorandum of understanding which has also been signed by the approving authority.  The Ordinance, in s.6(3), states that a person becomes included when the approving authority signs the memorandum of understanding.  When that occurs, the person is entitled to the protection of the programme, which includes the protection afforded by s.17. 

348.  The external elements of an offence against that part of s.17 with which we are presently concerned are the communication, in circumstances that amount to disclosure, of information which bears the character of information about the identity of a person who is in the witness protection scheme.  If the person about whom the information is communicated is not in the witness protection scheme (as was the case with Becky Wong on 15 July 2004) then the information does not bear the necessary character.  That is why the charges were amended.  (There was some discussion in argument about whether the case could have been conducted by reference to the third of the possibilities described in s.17(1)(a).  That is not the way the matter was conducted at trial, and it would be unfair to allow the prosecution, at this stage, to alter its ground in this way).  What constitutes disclosure may be an issue; it was an issue in this case.  Furthermore, the information must have the character of information about the identity of a person who is a participant in the programme. 

349.  As to the mental element of the offence, neither side contended that s.17 creates absolute or strict liability.  It is only necessary to consider the variety of innocent circumstances in which a person may disclose information about the identity or location of someone who happens to be a participant in the witness protection programme to see that, for an offence, the conduct described in s.17 must be accompanied by a guilty state of mind.  If it were otherwise, the section would impose criminal responsibility for morally blameless conduct.  The question is: what is the guilty state of mind?  The principles according to which that is to be resolved were recently discussed by this Court in Hin Lin Yee v. HKSAR[158].  What is involved is a matter of statutory construction.  There is a presumption that it is incumbent on the prosecution to prove mens rea in relation to each element of the offence[159], and that ordinarily requires intention or recklessness in the performance of the prohibited act.  “[W]here criminality is dependent upon [the] act being done in specified circumstances, the provision is construed as requiring it to be shown that the defendant knew of or was reckless as to the existence of those circumstances”[160].  There is nothing in the Witness Protection Ordinance to displace that presumption.  The prosecution, in its Supplemental Case in this Court, said: “S.17 creates an offence of basic intent.  Recklessness is not an element”.  That was accepted by counsel for Mr Egan.  There having been no argument on the point, the possible significance of recklessness in other cases may be left aside.  The presently relevant circumstance is that a person is a participant in the witness protection programme.  In order to establish a contravention of s.17 of the kind originally charged against Mr Egan, the prosecution would have had to establish that he knew Becky Wong was a participant in the witness protection programme on 15 July 2004.  It was argued on behalf of the prosecution in this Court that s.17 requires merely an intention to disclose information, if the information in fact satisfies the statutory description.  That submission should be rejected.  If it were correct it would mean that intentionally disclosing information about somebody’s location would be an offence if that person happened (unknown to the discloser) to be in the witness protection programme.  That would be a very curious result.

350.  Since, following the amendment of the charges, the case was one of alleged attempts to commit offences of the kind described in s.17, the material question concerns the state of mind the prosecution was required to show in order to make out that case.

351.  Section 159G of the Crimes Ordinance was evidently inspired by the English legislation considered by the House of Lords in R v. Shivpuri[161], and discussed by Professor Glanville Williams in his 1986 article commenting on the earlier decision in Anderton v. Ryan[162], which was overruled in Shivpuri.  A statement that the commission of a given offence is impossible may require further examination of the reason for such impossibility.  In this case, as the abandonment of the original charges appeared to accept, it was the circumstance that on 15 July 2004 Becky Wong had not been included in the witness protection programme that made the commission of the alleged offence impossible within the meaning of s.159G(2).  It may be noted that the difficulty which arose was reflected in the re-formulation of the particulars.  The particulars of the original charges followed the language of s.17.  The particulars of the amended charges did not.  There was an elision of the words “a person who was”, so that the original reference to “the identity of a person who was a participant in the witness protection programme” became “the identity of a participant in the witness protection programme”.  Some words may have been made to disappear but the problem had to be faced.  The essence of the criminality in a case where s.159G of the Crimes Ordinance applies is, as appears from s.159G(4), a belief in the existence of certain facts, which would include circumstances.  If the facts (or circumstances) of the case had been as the defendant believed them to be, and on that hypothesis his intention would be regarded as an intent to commit an offence, then he may be convicted of attempt.  In the present case, to establish that Mr Egan was guilty of the attempts charged, the prosecution had to prove that, at the time he spoke to Magdalene Chow, Mr Egan believed that Becky Wong was a participant in the witness protection programme.  As it happens, he had very recently read the Witness Protection Ordinance and had heard Mr Ryan say in Court that Becky Wong had signed a memorandum of understanding.  Mr Ryan had asserted that Becky Wong was a participant in the programme.  This implied that, at the time of the assertion, the approving authority had signed the memorandum of understanding.  A person may have a belief that someone is a participant in the programme without knowing the procedure that has to be followed, but Mr Egan had read the Ordinance and it was open to infer that he knew the procedure.  The prosecution did not have to prove that, at the relevant time, Mr Egan believed Becky Wong was willingly in the programme.  Mr Egan’s belief about the mental state of Becky Wong was relevant to the allegation that he was a party to a conspiracy to pervert the course of justice, but it was not relevant to the prohibition on disclosure in s.17 or to the charges that he attempted to commit an offence by disclosure.  “Suspicions” that he may have entertained about “pressure” that had been brought to bear on Becky Wong by the ICAC were not inconsistent with the belief that the prosecution had to establish.  A properly based finding of guilt on charges four and five would not have been inconsistent with an acquittal of Mr Egan on charge one.

The issues of fact - disclosure

352.  In relation to the fourth and fifth charges, there was a serious contest at trial about what it was that Mr Egan said to Magdalene Chow on 15 July 2004 and whether he disclosed to her information of the kind covered by s.17 of the Witness Protection Ordinance.  There was also a contest about whether he believed she was a participant in the witness protection programme.  As will appear, the last-mentioned issue became somewhat confused with matters relevant to the conspiracy charge.  It seems logical and convenient to commence an account of the evidence by going to the issue about disclosure.

353.  Mr Egan’s position on the issue of disclosure was not assisted by the fact that, on 16 July 2004, the South China Morning Post carried an article with the headline “ICAC is holding me illegally: secretary” under the by-line of Magdalene Chow and Sarah Bradford.  The article included the following: “A legal source said Ms Wong was in the witness protection programme”.  Magdalene Chow wrote (or dictated) that sentence, but in the following form: “A legal source said it is believed that Ms Wong is in the ICAC witness protection programme”.  The words “it is believed that” were deleted by the editor.  Any apparent inconsistency between the proposition that Ms Wong was being held illegally and the proposition that she was in the witness protection programme was not explored in the article.

354.  Magdalene Chow was granted an immunity from prosecution, and was called as a witness in the prosecution case.  Plainly, if Becky Wong had been in the witness protection programme, then the clearest disclosure of the identity of a person who was a participant in the programme would have been that effected by the newspaper article.  What the consequences of that might have been for a charge of attempt would raise questions of belief, but that is another matter.  Neither Magdalene Chow nor her employer was ever charged with an offence.

355.  Magdalene Chow said[163] she knew who Mr Egan was before 15 July 2004 but had not spoken to him.  She had not been covering the habeas corpus proceedings before 15 July, and was not aware of the hearing before Yam J.  Her colleague Sarah Bradford had been covering the matter but on the morning of 15 July had said she was ill and asked Magdalene Chow to take over.  Other journalists also were present at court and she spoke to them about what was going on.  It was Sarah Bradford who mentioned “protective custody” to her.  The proceedings before Hartmann J commenced, in camera, at 4:38 pm.  There was an adjournment between 5:34 pm and 5:56 pm.  When Mr Egan and Mr Ryan came from court into the lobby, they were surrounded by journalists asking them questions.  Mr Egan initially said he could not say anything.  A little later, while Mr Egan was standing with a lady who was not a journalist, Magdalene Chow went up to him and asked him what protective custody meant.  He told her to look up the Witness Protection Ordinance and the Criminal Procedure Ordinance.  She asked Mr Egan where Becky Wong was.  He said he did not know.  He said he had gone with a solicitor to the ICAC twice to look for her but was told Becky Wong was not with them.  The hearing before Hartmann J then resumed, and Mr Egan went back to court.  That was Ms Chow’s evidence in support of the fourth charge.

356.  Ms Chow’s evidence in support of the fifth charge was as follows.  The resumed hearing before Hartmann J finished at 6:10 pm.  When people came out of court Ms Chow went up to Mr Egan.  There were other reporters there.  Mr Egan said he had to come back next day.  Someone asked him a question, and he mentioned the witness protection programme.  Ms Chow’s evidence was “I remember somebody asked him something but I can’t recall what the question was.  Then he did say, ‘witness protection programme’”.  He said ICAC had authority to give certain witnesses protection, to change identity, to provide money and a flat to live in.  He referred to Eric Yang, who was known to the journalists as a senior ICAC officer and who had been outside the court and said that Eric Yang was in charge of the witness protection programme.  Ms Chow asked Mr Egan whether one was allowed to refuse to be a witness and he replied that if the ICAC were surrounding you, you would do nothing else.  He said they had to come back to court next day and the ICAC had to bring Becky Wong to court to explain whether there was a legal basis for keeping her.

357.  Ms Chow said that after she spoke to Mr Egan she noticed Mr Clement, approached him and said she did not understand why, after Yam J granted the habeas corpus, Becky Wong was not released.  He said a return to the habeas corpus had to be filed and that he did not know where Becky Wong was.  

358.  Ms Chow then went to the press room at the High Court and conferred with other journalists.  One showed her the habeas corpus application, the affidavit of Frankie Chung, and Mr Egan’s letter of complaint about the ICAC.  She then drafted and dictated the article that appeared (subject to the editing earlier mentioned) next day.

359.  Mr Clement’s evidence[164] was that before the commencement of the hearing before Hartmann J on 15 July, while he was talking to Mr Egan, a female Chinese reporter whose identity he could not say asked Mr Egan a question to which Mr Egan replied: “Go and look up the Ordinance”.  Mr Clement was not sure whether the question was whether Becky Wong could be on a witness protection scheme, or whether there was a witness protection scheme.  He said he did not hear Mr Egan say anything that was a breach of the order made by Yam J, and that Mr Egan’s responses to the press were guarded.

360.  In cross-examination[165], Ms Chow agreed that Mr Egan never said to her that it was believed that Becky Wong was in the witness protection programme.  She said she drew that inference, but it was pointed out to her, as her evidence made apparent, that she had numerous sources of information on 15 July, including other journalists.  She was questioned about entries in her journalist’s notebook.  Much of what was in the notebook concerning the day in question could not have come from Mr Egan, if her account of her conversations with him were reasonably complete.  Some of it could have come from a reading of Mr Egan’s letter of complaint, or Frankie Chung’s affirmation.  The notes also appear to record someone telling her he filed an application and an affidavit.  It was pointed out to her that solicitors (such as Mr Clement) not barristers (such as Mr Egan) do that[166].  Ms Chow had said in her witness statement that the man with whom she had what she said was the first conversation, between 5:34 pm and 5:56 pm, was smoking a cigarette[167].  The evidence was that Mr Egan was a non-smoker, but Mr Clement smoked.  As to Eric Yang[168], it was put to her that he could have been pointed out by one of the other journalists.  She said that may have happened, but she disagreed that the only mention of Eric Yang was from another journalist.  Counsel put to her Mr Egan’s version of what occurred which was that, in a crowd of journalists, one said to him “What is the Witness Protection Scheme?” and he replied “There is an ordinance that explains it: Witness Protection Ordinance, Cap. 564”.  She disagreed.  She was also questioned about the immunity from prosecution she and other employees at the newspaper received on condition that she made a statement.  She did not accept that she had a motive to blame Mr Egan.  

361.  Mr Egan testified[169] that during the adjournment from 5:34 pm to 5:56 pm, he was with Richard Clement and three other people.  A group of journalists “fell upon” him and upon Mr Ryan, who was standing separately, trying to find out details of what had happened.  He said he gave no information to any member of the press, including Magdalene Chow, in respect of Becky Wong being in the witness protection programme.  The only question Ms Chow asked him, which he answered, was “Mr Egan, what is the witness protection scheme?”  He replied “There is an ordinance that covers this.  It is Chapter 564 of the Laws of Hong Kong.  I suggest that you go down to the library and read it”.  He said that another journalist said “Eric Yang is here”, but at the time he did not know the man.  His recollection was that he heard the journalists chattering about Eric Yang and the witness protection scheme, and it was after that that Ms Chow asked him the question referred to above.

362.  Mr Egan’s evidence[170] was that, although the journalists were still around after the end of the proceedings before Hartmann J, he did not say anything to them.

The issues of fact – belief

363.  The reasons for judgment of Mr Justice Ribeiro PJ recount the history of the habeas corpus proceedings up to and including 15 July, and thereafter.  Nothing relevantly occurred between 5:34 pm and 6:10 pm on 15 July to alter Mr Egan’s state of information and belief on the question of Becky Wong’s status.  It is, however, material to note what was said in court following the assertion, by way of response to the habeas corpus application, that Becky Wong was in the witness protection programme.

364.  The matter went before Stock and Yuen JJA in the Court of Appeal at 2:37 pm on 15 July.  The hearing was in camera.  Earlier that day, before Yam J, Mr Ryan had told the court that Becky Wong was in the witness protection programme.  That was repeated when the matter was before the Court of Appeal.  The following exchange occurred:

“Stock JA:  What reason do you believe - do you have to believe that what we are being told is untrue?  Because it’s - if I may be forgiven a colloquialism - it’s one hell of a story to be making up.

Mr Egan:  My Lord, I don’t suggest that the ICAC or Mr Ryan are in the habit of making things up, but what I, through my long, bitter experience with the ICAC, have learnt is that they are not adverse to putting pressure on people to achieve the ends that they wish to achieve.

Now, they clearly want this woman to be a witness for them and what Yam J proposes – and it is a proposal we’re completely happy with – is that she come before the court at 3.30 and he, not us, asks her a very simple series of questions, “Miss Wong, you’re here, this side says you’re being held against your will, that side says you’re co-operating perfectly, you tell me what’s your position?  Do you want to stay where you are at present?  Are you happy in this situation or do you want to leave?”

Stock JA:   All right.

Mr Egan:  Right, now, there is absolutely no evidence from Mr Ryan.  No evidence.  No admissible evidence.  I have not been shown anything.  Any time I have asked to see anything, I have been denied access to anything that might persuade me that what I am being told is true.  I have my ingrained suspicions, through long experience of dealing with the ICAC, that this woman may well be in a situation where she’s really got no option, she’s pressured by ICAC officers into being a witness, if that’s in fact what her situation is”.

365.  Two observations may be made about that exchange.  First, for reasons that have been given earlier, “suspicion” about “pressure”, and about Becky Wong having “no option”, falls a long way short of an assertion that she has not, in fact or in law, agreed to be in the programme.  In any event, on the true construction of s.17, she was a participant in the programme if she and the approving authority had both signed a memorandum of understanding.  At the same time, it appears that Mr Egan’s position in the habeas corpus proceedings was that he was putting the ICAC to proof of everything they were alleging, and he was not admitting that Becky Wong’s situation was that she was a participant in the programme.  Because of the nature of the habeas corpus proceedings, and probably also because of the apparent authority and good faith with which Mr Ryan spoke (although it was later discovered that he happened to be wrong), the focus of Mr Egan’s attention was Becky Wong’s state of mind, but he was not conceding the objective facts relating to her status.

366.  When the matter, later on the same day, came before Hartmann J in camera, Mr Ryan read to the court a return to the writ of habeas corpus by Eric Yang stating that Becky Wong was in the witness protection programme.  Mr Egan adopted the same forensic stance as before the Court of Appeal earlier that afternoon.  The proceedings before Hartmann J ended on the basis that they were stood over to 16 July for further evidence to be filed by both sides.

367.  As to Mr Egan’s conversation or conversations with Ms Chow on 15 July, whichever version of those events be accepted, what is set out in paras 34-36 has a bearing on the issue of his belief concerning the matter the prosecution needed to establish in respect of its charges of attempt.

368.  In his evidence-in-chief[171], Mr Egan said the following:

“Q: Did you accept [from Mr Ryan] that this woman was voluntarily co-operating with the ICAC?

A: … [A]t no time did I ever accept that this woman was voluntarily in the witness protection programme.

…

Q: But it seems to me there were two matters which you made clear on a number of occasions.  First was that you didn’t accept that Becky Wong was in the witness protection programme.

A: Correct.

…

Q: And the second matter is this, you made it quite clear once again to a number of judges on that day that really what you were after was to have Becky Wong brought before a judge, without influence from anyone else, so that she could tell the judge what her situation was.

A: I made that plain to every court.

Q: Is that what you were after?

A: Of course that’s what I was after.”

369.  Later, in his evidence-in-chief, Mr Egan said[172]:

“Q: Did you on any occasion on 15 July 2004 disclose to Magdalen Chow information about the identity of a participant in the witness protection programme?

A: Absolutely not.

Q: On 15 July did you believe that Becky Wong was a willing participant in the witness protection programme?

A: I did not believe she was a willing participant in the witness protection programme and I was right.”

370.  As the concluding words of the last answer reveal, Mr Egan in his evidence did not deal separately with the question of his belief as to whether the formal procedures for inclusion of Becky Wong in the programme had been taken on 15 July and his views or doubts, or suspicions, about Becky Wong’s state of mind.  When cross-examined about the answer, he said “I was right in saying she was not in the witness protection programme at that time”.  If by that he meant he was right because it later appeared that the approving authority had not by then signed the memorandum of understanding then his answer exemplifies a conflating of issues as to the procedure that had been followed, as at 15 July, in respect of Becky Wong’s status, issues about her state of mind, and issues of Mr Egan’s belief in respect of those matters.  Those questions required separate consideration.  As to Mr Egan’s belief, he was never asked, in a non-leading form, to state what that belief was.  For the reasons given earlier, a denial of a belief that Becky Wong was a “willing participant” left some potential questions unanswered. 

A question of law on disclosure

371.  A communication prohibited by s.17 of the Witness Protection Ordinance need not necessarily take the form of written or spoken words, although ordinarily it will.  Depending on the context, pointing a finger may suffice.  Nor need it be direct, unequivocal or comprehensive.  At the same time, the communication, which ordinarily will be in words, must have the character of a disclosure of information.  To take an obvious example, after Becky Wong became a participant in the programme, communications between officers in the ICAC who already knew of her status, which might otherwise fall within the language of the section, would not satisfy the description of disclosures of information.

372.  In the Court of Appeal, Tang VP, with whom Ma CJHC agreed, quoted Lord Lowry in Attorney-General v. Associated Newspapers Ltd[173], a case concerning an alleged offence of disclosing jury deliberations.  Lord Lowry said:

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

373.  In Foster v. Federal Commissioner of Taxation[174], a case about the Commissioner’s power to amend assessments, which turned upon whether the taxpayer had, in his return, made a full and true disclosure of all material facts, Latham CJ said[175]:

“But the Commissioner, as the taxpayer must have known, was already aware of those facts and he was aware of them as facts having a direct relation to the assessment of the company in which the taxpayer was a shareholder.  In my opinion it is not possible, according to the ordinary use of language, to ‘disclose’ to a person a fact of which he is, to the knowledge of the person making a statement as to the fact, already aware.  There is a difference between ‘disclosing’ a fact and stating a fact.  Disclosure consists in the statement of a fact by way of disclosure so as to reveal or make apparent that which (so far as the ‘discloser’ knows) was previously unknown to the person to whom the statement was made.”

374.  Tang VP said that, if Mr Egan had disclosed the relevant matters during the first conversation, the second (alleged) conversation would simply be a republication of already known facts, and he could not be convicted on the fifth charge.

375.  While as a general proposition it may be true to say that repetition or republication by one person to another is not disclosure, there may be circumstances where that proposition requires qualification.  One such circumstance would involve communications with a person, such as a journalist, to whom sources of information are important.  For the same reason A may make a disclosure to B of information that has already been communicated to B by C, even if A is aware of that.  Suppose that in the present case, contrary to the fact, on 15 July 2004, Becky Wong had become a participant in the programme, and suppose that Ms Chow had been told that fact, once by Mr Ryan, and once by Mr Egan.  Prima facie, they would both have been guilty of a contravention of s.17.  It would have been no answer to the person who spoke second to point out that Ms Chow had already been given the information.  To her, both sources and the corroboration would have been significant.  Similarly, if Mr Egan had twice on 15 July told Ms Chow that Becky Wong was in the programme, the repetition or confirmation may have been important to her.  Mr Egan’s conviction on the fourth charge did not necessarily mean he had to be acquitted of the fifth charge.

376.  Nevertheless, as Tang VP also observed, the requirement for the prosecution to prove disclosure, in a context where Ms Chow had multiple sources of information about the habeas corpus proceedings and about the claims and counterclaims being made as to the position of Becky Wong, and where nobody was alleged to have said to her in direct terms that Becky Wong was in the programme, meant that the trial judge was required to make a careful analysis of the evidence in order to reach and explain his conclusion on the factual issues of disclosure and belief.   

The reasons of the trial judge on disclosure

377.  It will be apparent from what appears above that the factual issue of disclosure was not straightforward.  Not only was there a substantial conflict of evidence between Ms Chow and Mr Egan, and features of the case that might have cast doubt on Ms Chow’s reliability, but, even if the evidence of Ms Chow was accepted in its entirety, the words she attributed to Mr Egan, in the context of wider knowledge and multiple sources of information in which she was operating, required careful examination before concluding that he made an unlawful disclosure.  Furthermore, there was a real issue of identity of the person (Mr Egan or Mr Clement) with whom some of the discussion took place.

378.  The trial judge recited the evidence of Mr Egan, as summarised above.  He later said, in connection with some of Mr Egan’s evidence on the conspiracy charge, that he was not a truthful witness.  He referred to a “lame and feeble” explanation of a certain telephone call, and his attempt to justify or explain an apparent breach of Yam J’s confidentiality order.  He said he was sure Mr Egan knew that Derek Wong had an interest in the habeas corpus application, but ultimately, on the question whether the failure to disclose this to the court was misleading, gave Mr Egan the benefit of the doubt.  He acquitted Mr Egan of the first charge because he could not be sure he knew the habeas corpus application was a sham. 

379.  When dealing with the evidence of Magdalene Chow, the trial judge dealt at some length with cross-examination on her notebook.  He did not refer to the identity problem concerning the man who was smoking a cigarette.  He noted that Mr Clement said he did not hear Mr Egan act in breach of the order of Yam J, but did not mention Mr Clement’s evidence as to his exchange with Ms Chow.  As to the first conversation with Mr Egan alleged by Ms Chow, the judge said “Magdalene Chow asked [Mr Egan] about protective custody and [he] mentioned the Witness Protection Ordinance … Hence … [he] was effectively linking Becky Wong to the WPP.  The only irresistible inference is Becky Wong was a participant in the WPP.”  As to the alleged second conversation, he said Mr Egan explicitly mentioned that Eric Yang was in charge of the WPP, and features of the WPP, and that the ICAC had to bring Becky Wong to court to explain the legal basis of keeping her.  The “only irresistible inference”, he said, was that Becky Wong was a participant in the WPP.

380.  The trial judge said:

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

The reasons of the trial judge on belief

381.  The trial judge commenced by repeating, with apparent approval, a circular argument of the prosecution to the effect that Mr Egan must have believed Becky Wong was in the WPP, otherwise he would not have disclosed it to Magdalene Chow.  Not only was there an issue about whether such disclosure occurred, but even on the evidence of Magdalene Chow at its highest, there was only an oblique linking of her with the programme.  There was not alleged to be any clear assertion of the fact.

382.  The trial judge referred to the course of this proceedings, leading up to the afternoon of 15 July, and said:

“674. After considering all the circumstances and what [Mr Egan] had said to the courts on 15 July, I reject his evidence that he did not believe Becky Wong was in the WPP.  I am sure that he did believe that Becky Wong was in the WPP when he made the disclosure to Magdalene Chow notwithstanding he had instruction that Becky Wong wanted to leave the ICAC.  Before Mr Ryan said Becky Wong was in the WPP, the position was [Mr Egan] told Daphne Lim that and in the complaint letter of 13 July 2004, and what he had indicated to Mr Ryan [was] that he believed Becky Wong was in protective custody in a safe house but he had firm instructions that she wanted to leave.  With the disclosure of Becky Wong being in the WPP, mutatis mutandis, [Mr Egan] did believe that Becky Wong was in the WPP notwithstanding he had instruction[s] that Becky Wong wanted to leave the ICAC.  I find that he did intend to disclose when he made the disclosure to Magdalene Chow albeit not within the conspiracy of the 1^st charge”.

There has been a deal of speculation about the signification in para.[674] of mutatis mutandis.  Perhaps the learned judge was referring to the change between the concepts of protective custody and the witness protection programme.  Being held in protective custody is not the equivalent of being in the WPP.

The Court of Appeal

383.  The majority in the Court of Appeal (Tang VP with whom Ma CJHC agreed, Wright J dissenting) held that the finding on belief expressed in para.[674] of the trial judge’s reasons could not be supported, primarily because they thought it was inconsistent with his finding, in respect of the first charge, that it had not been shown that Mr Egan knew or believed the habeas corpus application was a sham.  Wright J, on the other hand, regarded the trial judge’s finding as both supportable and correct.

384.  The reasoning of all the judges on this point, not surprisingly, reflects the conflation of ideas inherent in the evidence that Mr Egan gave about his belief on 15 July, which was rejected.  What exactly was the trial judge rejecting?  What was the belief he found?  Were his findings on the first charge and on the fourth and fifth charges inconsistent?  A finding that Mr Egan believed that the procedures necessary to include Becky Wong in the witness protection programme had, by the afternoon of 15 July, been completed (which was the state of belief relevant to the fourth and fifth charges) would not be inconsistent with the possibility that Mr Egan held “suspicions” about “pressure”, did not believe the habeas corpus proceedings were a sham, and wanted Becky Wong to be brought to court to say whether she wanted to stay where she was.  That may be what the trial judge had in mind when he spoke of Mr Egan’s belief that Becky Wong was in the WPP notwithstanding his instructions in the habeas corpus proceedings.  Finding that, however, would not necessarily having involved a rejection of Mr Egan’s evidence, bearing in mind the rolled-up form it took.  There was material (including Mr Ryan’s statements in court) on which the trial judge could have found that Mr Egan had such a belief.  There was, however, another possibility, not explicitly addressed by the learned judge.  Mr Egan repeatedly said in court that he had seen no evidence from the ICAC to support Mr Ryan’s assertions about Becky Wong’s status, and he made it clear he was putting the ICAC to proof of those assertions (as were Yam J and Hartmann J).  While his focus was on willingness, which was central to the habeas corpus application, he may simply have been agnostic on the question of Becky Wong’s formal status.  It is not clear whether the trial judge considered and rejected that possibility.  It does seem, however, that it was not addressed by the majority in the Court of Appeal.  On a correct understanding of the nature of the belief the prosecution had to show, the trial judge’s findings on the first charge were not inconsistent with his findings on the fourth and fifth charges, and were not insupportable.  To this extent, the prosecution’s challenge in this Court to the decision of the Court of Appeal succeeds.

385.  Tang VP, however, went on to consider a wider question, which related to the issues of both disclosure and belief, concerning the adequacy of the trial judge’s reasons for his decision, and concluded that the reasons were inadequate.  Counsel for Mr Egan, in this Court, seeks to support the decision of the Court of Appeal on this basis as well.

Adequacy of Reasons

386.  In Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority[176], Li CJ said:

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

387.  The adequacy of reasons in the circumstances of a particular case is to be considered in the light of the purposes that are served by the obligation to give reasons.  It promotes good decision-making, and the acceptability of decisions to the public.  It means that the parties are given an explanation of the outcome.  It serves the interests of the parties and the public by facilitating appropriate appellate supervision[177]. 

388.  There were difficulties in the evidence that went to the reliability of Ms Chow’s evidence, such as her original assertion that the person who had the first conversation with her as she recounted was smoking a cigarette, and her references to the person having asserted he had done things normally associated with a solicitor.  These things suggested she may have confused Mr Egan with Mr Clement, but that possibility was not dealt with by the trial judge.  Nor did he explain why the fact that Ms Chow had the benefit of an immunity did not require some care in evaluating her evidence.  In a number of respects, the trial judge’s preference for her evidence as against that of Mr Egan was insufficiently explained.

389.  There was, however, a more fundamental problem that was identified by Tang VP.  It is necessary to keep in mind that it was never alleged that Mr Egan directly said to Ms Chow that Becky Wong was believed to be, much less that Becky Wong was, in the programme.  The disclosure found by the trial judge consisted in saying something that linked Becky Wong to the programme.  Yet, on 15 July, a number of people gave Ms Chow information that, considered in its entirety, enabled her to make such a connection.  There was an atmosphere of intensive legal activity, and equally intensive journalistic interest.  On 15 July there were habeas corpus proceedings in respect of Becky Wong, some of which took place in open court, before Yam J, the Court of Appeal, and Hartmann J.  References were made, in court and out of court, to protective custody.  Before she wrote her article, Ms Chow read the habeas corpus application, the affirmation of Frankie Chung, and Mr Egan’s letter of complaint.  It is possible, consistently with her evidence, that other journalists recognised Mr Yang, and knew who he was.  At the centre of the legal proceedings, there was some kind of dispute going on about the status of Becky Wong.  Journalists were exchanging information and, no doubt, speculation.  It may have been the entire context, not any particular thing that Mr Egan said to her, that caused Ms Chow to link Becky Wong to the programme.

390.  Tang VP pointed out that Mr Egan was not cross-examined on his version of his conversation with Ms Chow, which was that she asked him what the witness protection scheme was and he referred her to the ordinance.  Tang VP correctly said that it appeared that no significance was attached to the difference between Ms Chow’s evidence and Mr Egan’s evidence, that the counsel for the prosecution made no reference to it in his final address, and that the trial judge made no examination or evaluation of Ms Chow’s knowledge from other sources.

391.  As to Ms Chow’s evidence of a second conversation on 15 July, which was denied by Mr Egan, there was a similar problem.  Ms Chow said “I also remember somebody asking him something but I can’t recall what the question was.  Then he did say ‘witness protection programme’”.  Much may have turned upon the question for the purpose of a decision as to whether the answer constituted a disclosure.

392.  The trial judge concluded that, on two occasions on 15 July, Mr Egan said things that linked Becky Wong to the programme, but, as the majority in the Court of Appeal held, he did so without making findings, or sufficient findings, as to what Mr Egan said, what he was responding to, and what other information Ms Chow drew upon for the inference that was ultimately reflected in her newspaper article.

393.  On the issue of belief, dealt with finally in para.[674] of the trial judge’s reasons, there was a similar failure of analysis, in this case perhaps encouraged by the rolled-up form in which some of the evidence was given.  There was a need to discriminate between Mr Egan’s belief concerning whether the necessary formal steps had been taken to include Becky Wong in the witness protection programme (which was relevant) and Mr Egan’s belief, or doubts, or suspicions about Becky Wong’s state of mind (which, for purposes of the fourth and fifth charges, was not).  There was evidence on which the trial judge could have made a finding adverse to Mr Egan.  Whether he made such a finding is not clear, and, if he did, he did not adequately explain his reasons.

Conclusion

394.  The Court of Appeal’s order allowing Mr Egan’s appeal and quashing the conviction should be upheld on the second ground on which it was made.  Ordinarily, where an appeal is upheld on the ground that the trial judge has erred in law by failing to give adequate reasons for his decision, and there is evidence which, properly considered and applied, could support a conviction, there would be an order for a new trial.  Such an order is sought by the prosecution, and opposed by counsel for Mr Egan, partly on the ground of the time that has elapsed since the events the subject of the charges.  Whether there should be an order for a new trial is a matter of discretion[178].  The events occurred six years ago.  Having regard to the evidence and the circumstance, it was not an easy case for the prosecution to establish, and the position of the prosecution is likely to be more difficult at a new trial.  I propose that there should be no such order.  It is sufficient for this Court to order that the appeal against the Court of Appeal’s decision in respect of the fourth and fifth charges be dismissed.

Other Appeals

395.  I agree with the orders proposed by Mr Justice Bokhary PJ in relation to Ms Chui’s appeal against her conviction for perjury, and with his reasons for judgment.

396.  I agree with the orders proposed by Mr Justice Ribeiro PJ in relation to the appeals of Mr Lam and Ms Chui against their convictions for conspiracy, and with his reasons for judgment.

397.  I also respectfully agree with the observations of Mr Justice Ribeiro PJ and Mr Justice Litton NPJ concerning the decision – making procedure followed at trial.

Mr Justice Bokhary PJ:

398.  The Court is unanimous.  Ms Mandy Chui’s appeal is allowed.  Her convictions are quashed.  Mr Andrew Lam’s appeal is allowed.  His conviction is quashed.  The prosecution’s appeal is dismissed.  Mr Kevin Egan remains acquitted on Charges 4 and 5.  There will be no retrial.  Any application for costs will be dealt with on written submissions as to which the parties should seek procedural directions from the Registrar. 

[1] Cap 564.

[2] Cap 200.

[3] Also known as Kanjanapas Chong-kwong.

[4] William Lau, Semtech’s Financial Controller, who had also been arrested by the ICAC, was also present.  As William Lau is not alleged to have played any relevant role, his presence from time to time at meetings mentioned in this judgment is ignored for present purposes.

[5] Reasons for Verdict (“RV”) §411.

[6] DCCC 298/2005 (12 June 2006).

[7] CACC 248/2006, CACC 140/2007 and CAAR 8/2006, Ma CJHC, Tang VP and Wright J.

[8] Ma CJHC and Wright J, Tang VP dissenting.

[9] Ma CJHC and Tang VP, Wright J dissenting.

[10]    Ma CJHC and Tang VP, Wright J dissenting.

[11]    CACC 248/2006, CACC 140/2007 and CAAR 8/2006, 21 May 2009.

[12]    Ma CJHC and Wright J, Tang VP dissenting.

[13]    Ma CJHC and Wright J, Tang VP dissenting.

[14]    FAMC 42/2009.

[15]    FAMC Nos 16, 17 and 18 of 2009, Bokhary, Chan and Ribeiro PJJ.

[16]    Hong Kong Court of Final Appeal Ordinance (Cap 484).

[17]    What occurred at two dinner parties held on 30 August 2004 and 30 September 2004 is also relevant.

[18]     RV§39.  The Judge referred to Derek Wong as “D1”, Chui as “D2”, Lam as “D3” and Egan as “D4”.  Their names, and the names of others mentioned, abbreviated as indicated in this judgment, are used throughout in substitution for the abbreviations used in the Reasons for Judgment and elsewhere, for the avoidance of confusion.

[19]    RV§43.

[20]    RV§51.

[21]    RV§75-§76.

[22]    RV§77-§78.

[23]    RV§56.

[24]    Ibid.

[25]    RV§61.

[26]    This and similar indications of the time are based on recordings made by security cameras monitoring passenger lifts and other parts of the buildings concerned.

[27]    RV§98.

[28]    Appearing with Mr Graham Harris and Mr Benson Tsoi for Lam.

[29]    RV§99.

[30]    RV§103

[31]    RV§110.

[32]    RV§115.

[33]    RV§133.

[34]    RV§134.

[35]    RV§150.

[36]    RV§152.

[37]    RV§153.

[38]    RV§151.

[39]    RV§159.

[40]    RV§178.

[41]    RV§197.

[42]    RV§202.

[43]    Ibid.

[44]    RV§227.

[45]    Stock and Yuen JJA.

[46]    RV§246.

[47]    RV§335-337.

[48]    RV§299.

[49]    Ibid.

[50]    Transcript, B4/8/609-611.

[51]    Transcript, B4/8/626-627.

[52]    RV§306-307.

[53]    RV§320.

[54]    RV§322.

[55] RV§327.

[56]    RV§354-359.

[57]    Transcript, B4/9/658.

[58]    [1891] QB 360 at 369.

[59]    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 (1994-1995) 184 CLR 132 at 141.

[60]    Cap 200.

[61]    R v Kellett [1976] 1 QB 372 at 383; R v Meissner (1994-1995) 184 CLR 132 at 141.

[62]   R v Machin [1980] 1 WLR 763; HKSAR v Wong Shing Yim Peter [2003] 3 HKLRD 1046 at §19.

[63]    R v Rogerson (1992) 174 CLR 268 at 280.

[64]   R v Rogerson (1992) 174 CLR 268 at 280-283; HKSAR v Wong Shing Yim Peter [2003] 3 HKLRD 1046 at §29.

[65]    Including tribunals having authority to determine the rights and obligations of parties and having a duty to act judicially: R v Vreones [1891] QB 360 at 369; R v Rogerson (1992) 174 CLR 268 at 275-276.

[66]    As in R v Selvage and Morgan [1982] QB 372.

[67]   R v Rogerson (1992) 174 CLR 268 at 277; adopted in HKSAR v Wong Shing Yim Peter [2003] 3 HKLRD 1046 at §23, §30; R v Panayiotou and Antoniades [1973] 1 WLR 1032 at 1036; R v Selvage and Morgan [1982] QB 372 at 381.

[68] R v Rogerson (1992) 174 CLR 268 at 277-278, 284-285; HKSAR v Wong Shing Yim Peter [2003] 3 HKLRD 1046 at §29. 

[69]    Some decided cases have suggested the contrary: R v Thomas and Ferguson [1979] QB 326 and R v Cotter [2002] 2 Cr App R 29 at 416; both relying on R v Bailey [1956] NI 15 at 26.  However, in my view, the approach in R v Rogerson is preferable.  Compare R v Rafique [1993] QB 843 at 852, where Lord Taylor of Gosforth CJ considered the two lines of cases reconcilable.

[70]    R v Rogerson (1992) 174 CLR 268 at 275-279.

[71]    [1976] 1 QB 372.

[72]    At 383-384.

[73]    (1637) 3 State Tr 770 at 802, cited in R v Kellett [1976] 1 QB 372 at 387-388.

[74]   Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384; adopted in Kwan Fung Kam v AG [1990] 2 HKC 577.

[75]    At 1385.

[76]    Hong Kong Solicitors’ Guide to Professional Conduct, 2nd Ed (1998), §10.12: “It is permissible for a solicitor acting for any party to interview and take statements from any witness or prospective witness at any stage of the proceedings, whether or not that witness has been interviewed or called as a witness by another party.”

[77]    Connolly v Dale [1996] QB 120.

[78]   R v Kellett [1976] 1 QB 372 at 388.

[79]    R v Kellett [1976] 1 QB 372 at 386; R v Silverman (1908) 14 CCC 79 at 81-82 (in relation to a statutory form of the offence).

[80]   (1994-1995) 184 CLR 132 at 143.

[81]   Kwan Fung Kam v AG [1990] 2 HKC 577 at 578.

[82]    R v Kellett [1976] 1 QB 372 at 391.

[83]    R v Kellett [1976] 1 QB 372 at 392; Librizzi v State of Western Australia [2006] WAR 104 at §80.

[84]    R v Silverman (1908) 14 CCC 79 (Ontario Court of Appeal).  See also R v Taffs [1991] 1 NZLR 69 at 73.

[85]    R v Kellett [1976] 1 QB 372 at 392-393.

[86]    Who also appeared on the present appeal with Mr Roger Beresford for the prosecution.

[87]    This being the characterisation of Becky Wong by the ICAC’s Witness Security Panel on 12 July 2004, as noted above.

[88]    RV§637.

[89]    Transcript, B1/4/5.

[90]    RV§636.

[91]    Transcript, B7/15/1488.

[92]    Transcript, B7/15/1546.

[93]    RV§616.

[94]    RV§412.

[95]    Court of Appeal §264(2), (3) and §265.

[96]    Ma CJHC at §§264-275; Wright J at §§347-350.

[97]    Ma CJHC at §276-281; Wright J at §349.

[98]    At §284.

[99]    At §344.

[100]  At §197.

[101]  Hong Kong Solicitors’ Guide to Professional Conduct, 2nd Ed (1998), §§9.01.

[102]  (1926) 26 SR (NSW) 94 at 108, cited in R v Brown [1990] VR 820 at 823-824.

[103]  (1998), 153 ALR 711 at 718.

[104]  Hong Kong Solicitors’ Guide to Professional Conduct, 2nd Ed (1998), §10.03.

[105]  At §286.

[106]  At §§171-196.

[107]  At §291.

[108]  At §§351-353 and §§363-365.

[109]  [1955] AC 370 at 375.

[110]  (2002) 5 HKCFAR 336 at §42.

[111]  RV§354.

[112]  RV§573.

[113]  RV§574.

[114]  RV§575.

[115]  Transcript, B4/9/658.

[116]  Court of Appeal §189.

[117]  RV§578.

[118]  Transcript, B2/5/286.

[119]  Transcript, B2/5/140.

[120]  RV§485.

[121]  Transcript, B2/5/286.

[122]  Transcript, B2/5/241-242.

[123]  RV§51.

[124]  Given that she had not emerged more than 48 hours after her arrest.

[125]  RV§312.

[126]  Transcript, B2/5/269.

[127]  RV§98, set out in Section D.4 above.

[128]  Court of Appeal, §41.

[129]  That was a reference to the term “protective custody” and not “adamant”.

[130] Supplemented by a copy of Egan’s letter of complaint.

[131]  [1907] AC 221 at 222.

[132]  [1979] HKLR 1 at 5.

[133]  (2002) 5 HKCFAR 209, per Sir Anthony Mason NPJ at §61.  See also the authorities cited by Bokhary PJ at §§18-24.

[134]  RV§159.

[135]  RV§202.

[136]  RV§226.

[137]  RV§227.

[138]  RV§264.

[139]  RV§321.

[140]  RV§322.

[141]  RV§327.

[142]  RV§§178 and 179.

[143]  RV§330.

[144]  RV§56.

[145]  RV§565.

[146]  RV§635.

[147]  Section 15(iv).

[148]  Connolly v Dale [1996] QB 120.

[149]  Cap 221.

[150]  This was not so on the facts of the present case: see §100 of Ribeiro PJ’s judgment.

[151]   This was the expression used by Egan when he telephoned Mr Clement and complained in effect that Mr Clement’s proposal simply to write a letter to the ICAC was too mild: §103 of the Reasons for Verdict.

[152]   Reasons for Verdict §110.

[153]  Harmony Shipping Co. SA v. Saudi Europe Line Ltd [1979] 1 WLR 1380 at 1384.

[154]  See Cheong Shing Ltd v. Yu Kwan (2008) 11 HKCFAR 594 at 597 H where the trial judge said that the truth could not be found within the entire pool of the evidence.

[155]  See Viscount Kilmuir (1960) 76 LQR 41 at 42-3.

[156]  [1976] AC 104 at 121.

[157]  (1967) 121 CLR 205 at 244.

[158]  [2010] 3 HKC 403.

[159]  (as above) at [41] per Mr Justice Ribeiro PJ.

[160]  (as above) at [42] per Mr Justice Ribeiro PJ.  See also He Kaw Teh v. The Queen (1984-1985) 157 CLR 523 at 568-571 per Brennan J.

[161]  [1987] AC 1.

[162]  [1985] AC 560.

[163]  Record B5 – pp 781-786.

[164]  Record B3 – pp 512-513.

[165]  Record B5 – p.831.

[166]  Record B5 – p.841.

[167]  Record B5 – pp 843, 863.

[168]  Record B5 – p.847.

[169]  Record B7 – pp 1527-1528.

[170]  Record B7 – p.1529.

[171]  Record B7 – p.1520.

[172]  Record B7 – p.1534.

[173]  [1994] 2 AC 238 at 255. 

[174]  (1951) 82 CLR 606.

[175]  (1951) 82 CLR 606 at 614-615.

[176]  (1997-98) 1 HKCFAR 279 at 290.

[177]  AK v. State of Western Australia (2008) 232 CLR 438.

[178] See Kissel v. HKSAR [2010] 2 HKLRD 435 at 527.