SECRETARY FOR JUSTICE v. NG WAI BING AND OTHERS

HCMP840/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDING 840 OF 2010

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JUDGMENT

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1.  This is an application, pursuant to leave granted on 6 May 2010, by the Secretary for Justice for the committal of the three respondents consequent upon events which occurred during the hearing of a criminal trial in the District Court under reference DCCC1280/2005. It is asserted by the applicant that the conduct of the respondents amounted to contempt of court.

2.  The relief sought in the originating summons against 1^st respondent is, and the grounds for it, are expressed thus:

that the 1^st respondent be committed to prison and/or fined for contempt of this Honourable Court for placing or causing other person to place an "MP3" (acronym of MPEG-1 Layer 3) recording device underneath a chair in a witness room on 8^th floor, Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong, which is within the precincts of or in the face of the District Court, for a total of 47 days from 7 May 2007 to 7 September 2007, to record all the conversations which might take place inside that witness room, where prosecution witnesses and other police officers in connection with the District Court Criminal Case no. 1280 of 2005 stayed therein during the trial of that criminal case

3.  The 2^nd respondent is alleged to have placed the MP3 recorder beneath the chair whilst 3^rd respondent is said to have arranged transcription and translation into English of "... recordings which he knew was (sic) recorded..." by such device. The applicant accepts that 3^rd respondent did not initially know that the recordings provided to the transcription service came from the witness room. In due course and in the course of his duty he did conclude it to be so.

4.  In the circumstances, it is necessary to consider in some detail the conduct which is said to constitute the contempt.

THE BACKGROUND

The trial in the District Court

5.  Over a period of some 13 months between 2004 and 2005 police officers conducted an undercover investigation of criminal activities alleged to have taken place in various massage/sauna parlours in Kowloon. As a result nine persons were charged with one count of conspiracy to manage a vice establishment whilst three of the accused faced, in different combinations, a further 10 charges of money laundering. The 4^th accused in that trial, facing only the conspiracy charge, was one CHEUNG Sai-kit. He was a retired police officer. He is married to the 1^st respondent who, herself, is a retired police officer.

6.  The trial, which was described in a subsequent appeal by way of case stated (Secretary of Justice v LAU Hon-keung and Others CACC 156/2009) as being "... of extraordinary length...", began on 17 April 2007 before Deputy Judge M C Jenkins. It occupied approximately 150 court days.

7.  On 5 December 2007, some 128 days into the hearing, when counsel on fiat indicated that he intended to close the prosecution case, counsel for the 4^th and 6^th accused, Mr Raymond Yu, applied to recall PC53687, who had participated in the undercover operation and had testified as the first prosecution witness, asserting that a number of audio recordings had been provided by 1^st respondent which, it transpired, had been covertly obtained in a witness room outside the courtroom where the trial was being heard and which, it was said, recorded police officers discussing aspects of the evidence.

8.  Mr Yu was instructed by Messrs Anthony Kwan and Company. The 3^rd respondent in these proceedings is a law clerk employed in that practice, was the representative of that firm present in court instructing counsel throughout the trial and is also a retired police officer.

9.  It appears from the transcript of proceedings that it was common cause that the recordings were not of  good quality. An issue arose also as to the authenticity and admissibility of the recordings. The judge held a voir dire to resolve this issue.

10.  The judge ruled the contents of the recordings to be admissible in evidence although, as he noted, the accuracy of the transcripts remained an issue. The judge accepted that where the recording was clear the transcript "... was most likely to be accurate". A number of the police officers concerned were recalled to testify regarding the recorded conversations. The judge noted, in particular, that each of the police officers "... said he was unable to recognise whether his voice had been recorded and did not recognise any of the voices." The judge found this to be "highly improbable" and “unbelievable”.

11.  When the prosecution case finally closed, a submission was made that there was no prima facie case for any of the accused to answer on any of the 11 charges. On 4 February 2008 the judge delivered a brief ruling acceding to that application, as a result of which all the accused were acquitted. He said, inter alia:

5)         It was plain that the prosecution case depended very largely on the evidence of the undercover police officers.... Very broadly the defence suggested that the officers had fabricated evidence to a large degree both as to what had happened at the massage parlours and (in the case of PW1) the roles played by the various defendants.

10)       ... I am wary about attaching much weight to [the 1^st respondent's] purported identification of the voices on the recordings.... However in many cases it is apparent from the content of the recordings, and from the context, who is speaking. And the only female voice recorded has to be the present officer in charge of the case who is known as Daisy. It simply could not be anyone else.... So irrespective of the accuracy of [the 1^st respondent 's] voice identification it is not difficult in many cases to deduce whose voice is speaking.

11)       ... As I have said parts of the recordings were clear enough to enable satisfactory voice identification. In some cases, from the context, it is plain who is speaking. Yet the police officers said that they could not hear who is speaking. It seems to me to be highly improbable that none of these witnesses would be unable (sic) to recognise his own voice or the voices of his colleagues.

14)       It is of course fundamental that witnesses... must not

discuss evidence. Each witness was expressly told by me not to discuss the case or the evidence during adjournments. This usual warning should be unnecessary in the case of experienced police officers but I am driven to the conclusion that the witnesses in this case on whose evidence the prosecution so heavily rely have ignored that warning and done what they should not have done. These witnesses are the undercover officers PWs 1, 2, 4, 5 and 10.

15)       ... on a number of occasions it is plain that the witnesses were talking about aspects of the evidence that had earlier that day been given or about questions that had been put in cross-examination or questions that might be asked in future. And the recording... on 10 May 2007 is open to the interpretation that suggestions are being made as to how to answer future cross-examination. I do not go so far as to say that these witnesses have deliberately got together to fabricate evidence that would falsely implicate the defendants but the fact is that they have discussed specific areas of the evidence despite them knowing that they should not have done so.

17)       ... I have to accept that... it is unbelievable that none of the prosecution witnesses recalled to deal with the recordings were able to recognise any of the voices.

18)       The question now is: whether the discussion of the evidence and the failure by the prosecution witnesses to recognise the voices on the recordings is fatal to the prosecution case? I am bound to say that were it not for these matters the prosecution case was a strong one and undoubtedly I would have found that there was a case to answer for all the defendants on each charge he/she faced. Is this a case where the strength or weakness of the evidence depends on the view to be taken of its reliability? Is it a case where one might say: "Well, the witness may be mistaken, incorrect or wrong about one matter but that does not destroy his credibility on the other issues". If so the matter would be left to the jury if there was one. But as I have found, the behaviour of five essential prosecution witnesses and their credibility is seriously to be questioned. With that in mind, and considering the defence submissions and the authorities cited I am led to the conclusion that the conduct of the witnesses undermines and weakens the evidence to such an extent that a properly directed jury could not properly convict.

12.  It is clear from the judge’s ruling, therefore, that the application was granted on two bases: first, that some of the prosecution witnesses had discussed the evidence and the course of the trial whilst testifying which had been established, as a matter of fact, by the recordings made in the witness room by the respondents and had done so in defiance of a direct instruction from him; and, secondly, that the judge was satisfied that the witnesses who testified concerning this issue on behalf of the prosecution were being untruthful in regard to their ability to identify voices on those recordings, thereby irremedially damaging their credibility.

13.  It is pertinent to note that the Secretary for Justice appealed the judge's decision by way of case stated  (LAU Hon-keung and Others, supra). However, there was no challenge in the course of that appeal to the correctness of the judge's ruling regarding findings of credibility. In the event the Court of Appeal allowed the appeal, in part, holding that there was evidence against the former first accused in the trial in respect of Charges 4 and 7 other than from the undercover police officers; that the judge had failed to consider that evidence in arriving at his decision that there was no prima facie case for the former first accused to answer in respect of those two charges; that in this respect the judge had fallen into error.

The evidence on the voir dire

14.  The 1^st and 2^nd respondents testified during the voir dire concerning the admissibility of the audio recordings, as did a third person, Lam Mo-wah, who was described as an audio engineer: nothing in these proceedings turns on his testimony. The 2^nd respondent is a family friend of 1^st respondent.

15.  The essence of their evidence appears in facts admitted for these proceedings as follows:

(6)        The 1^st respondent testified that towards the end of April 2007 she overheard PW1 talking to another police officer known to her as "Spare Rib" as they left courtroom 24 at the end of that day's hearing. The 1^st respondent stated that she heard "Spare Rib" say to PW1 "That's right, just fucking nail him". She at this juncture became worried that police witnesses might falsely collude together or might not tell the truth against the defendants including the 4^th defendant, her husband. The 1^st respondent decided to see if she could obtain evidence to support the concern she felt.

(7)        The 1^st respondent said that she approached the 2^nd respondent, a friend of hers, who agreed to place audio recorders inside the witness room with a view to recording all the conversations which might take place therein. According to the testimony of the 1^st respondent, the 2^nd respondent placed a Samsung MP3 digital recorder inside the witness room on every court day in the early morning from 7 May 2007 onwards. On each following morning after the court hearing, 2^nd respondent would hand the MP3 recording device to the 1^st respondent who then labelled it with the date of recording and kept it in a safe at her home.

(8)        The 1^st respondent said that the prosecution witnesses, including PW1 always stayed inside the same witness room just outside courtroom 24 which the 1^st respondent recorded in her notes as "Rm 2".

(9)        The 1^st respondent testified that there are a total of 47 audio recordings each contained in a Samsung MP3 digital recorder, taken inside [Rm 2]... between 7 May 2007 and 7 September 2007.

(10)      The 1^st respondent said that on certain days, including 7 May 2007, she stayed outside the courtroom to observe who the police officers were that came out and went into [Rm 2]. She said that she made contemporaneous notes of the police officers’ movement and would later tidy up those contemporaneous notes and transfer the information on to some other better-written notes.

(11)      On 14 January 2008 during the voir dire the 2^nd respondent testified that the 1^st respondent had told him that there was a prosecution witness who mentioned his intention to "nail" her husband. The 1^st respondent therefore asked the 2^nd respondent to place an MP3 recording device under a chair in [Rm 2]... to record all the conversations which occurred in that room on a daily basis on every court day. The 2^nd respondent mounted and dismounted the MP3 recording device in [Rm 2] on each of the 47 days. The 2^nd respondent said that he did not see any unlawfulness in placing the MP3 recording devices into the relevant witness room, in order to do justice.

16.  In addition to these agreed facts, it is appropriate to have regard to particular passages of the evidence contained in the transcripts, references being to Hearing Bundle C.

17.  In 1^st respondent's evidence in chief:

75 K-N:

Q:        Now, in relation to the words uttered by Sparerib, did you do anything about it?

A:        Yes I did.

Q:        Yes, what did you do?

A:        In fact, having heard those words, if I then went to tell other people about it, that is telling people about the police officer saying that they wanted to nail those people, I reckoned that no one would believe me what I said unless I have evidence that these people really would do something perverting the course of justice.

75 S:

Q:        So in the end what did you do?

A:        Well, I thought it over and I reckoned that if I was able to capture what was said by them in audio record that would be the best way. I cannot think of any other better way.

76 N:

Q:        ... when was the first day Wong Man-chun placed the recorder in the witness room?

A:        7 May.

116 R - 117B:

Q:        Now, we know that there were 47 days of recording, madam, but obviously there were more days of evidence. Was there any plan or strategy that you devised in determining which days should be recorded?

A:        Well, in fact, originally I wanted to make audio recordings on each and every day but after all the recordings in relation to PW1 had been made and at the time when the audio recordings in relation to [PW2] were being made it was discovered... that what they had for about was just chit chat, casual chat. They did not discuss about the evidence.

In the cross-examination of 1^st respondent by the prosecution:

195 C-H:

Q:        Right. So was there any day when unexpectedly they used another room so the recording was of no value?

A:        Well, for these witnesses, in general, for the time after they came to court they occupied the room [the whole day].

...

A:        Because they were required to move the exhibits to that room during lunch hour. They have a fixed room and no one else entered that room.

205 A -C:

Q:        Yes, the conversations on how many MP3 players ended up being transcribed?

A:        After this matter in relation to the recording was revealed - - after this recording matter was revealed, I had given the recordings, the MP3 recordings in relation to 9 May, 10 May, 14 May and 1 June to the transcriber to make transcripts.

206 A-G:

Q:        Well, there were four different dates up to when it was revealed. Were there any more that were the subject of transcription?

A:        There was one extra one in relation to 7 June.

...

A:        ... originally I only thought about revealing 10 May’s transcript, only one.

...

A:       Well, I only given that one to [the 3rd respondent] and then who passed it to counsel. And then when this matter, this transcript or this matter was brought to court, and I understand that there were some dispute between counsel. And so more were being asked for.

208R - 209K:

Q:        Your discussion with [the 3^rd respondent] was about these recordings. He knew it related to this case?

A:        No, he didn't know.

Q:        And why did you not tell him?

A:        Of course I would not tell him.

Q:        Why not?

A:        Because this thing I was doing, I did not want anyone to know about it.

COURT:         Why not was the question.

A:        Well, as I wanted to continue to make the recordings, that is I wanted to continue to make the recordings in relation to what the witness said in the room, so I know that if this matter was revealed I would not be able to do so.

Q:        You mean you were worried that if you told the solicitor he might advise you to stop doing it?

A:        That would be a way to put it.

...

Q:        And why was it raised that time it was? Why did you raise it at the time that you did or reveal it at time that you did?

A:        Which day?

Q:        Well, sometime around the beginning of December, the point surfaced. So why was it held up until that bit?

A:        Well, I reckon that at that time it was - - that time was mature, so...

Q:        Why then? Why was the time mature?

A:        Because the witnesses had - - all the witnesses had already given their evidence.

257 B-F:

A:        ... The reason I do this is because I want to uphold the integrity of justice, and I want to find out whether someone had perverted the course of justice.

COURT:         All right.

Q:        Right. So your primary objective was not to help your husband. It was for wider interest.

A:        Well, in a word I wouldn't say that. I did this because I want to uphold justice. And other things, I don't know what you are trying to suggest or say.

From the evidence in chief of 2^nd respondent:

268 B:

Q:        When was the first time you placed MP3 device in that witness room?

A:        The 7th of  May.

270 G:

Q:        On the 10th did you place another MP3 in the same witness room?

A:        Well, not too sure. Well, logically speaking I would have, because on every occasion it was [the 1^st respondent] who instructed me whether or not to place the MP3 device.

18.  Further facts agreed by the respondents relate to the transcription and translation of the recordings. They may be summarised as follows:

18.1       Mr Lam Shing Ming is the person-in-charge of Diners Professional Translation Services (“Diners”) which had provided services to Anthony Kwan & Co. some four times since 2002;

18.2       in about May 2007, 1^st and 3^rd respondent s attended the office of Diners to have some audio recordings on compact discs transcribed. The 1^st  respondent handed some compact discs containing recordings to one Shum Lok Ka for transcription. Thereafter, 1^st respondent attended Diners alone to deal with the transcription. Each time, she would hand him one or two compact discs for transcription;

18.3       the 3^rd respondent later learned from the transcripts that the recordings were of the prosecution witnesses improperly discussing evidence in the trial and other matters while inside a witness waiting room; 

18.4       apart from 3^rd respondent, 1^st respondent and a Mr. Lam from Anthony Kwan & Co. had later come to Diners to follow up the collection of transcriptions;

18.5       whenever a draft of a transcript was ready,  Mr Lam Shing Ming would fax or email to 3^rd respondent at Anthony Kwan & Co.. Some 12 emails were sent to 3^rd respondent by Mr. Lam about the transcriptions and translations, between June and November 2007. If any amendment was required to a transcript, the 1^st respondent would take the hardcopy of the transcript with some handwritten amendments thereon to Diners. Sometimes, the draft transcripts with handwritten amendments would be faxed to Diners from the office of Anthony Kwan & Co. Diners received the fair copy of the draft from Anthony Kwan & Co. by fax;

18.6       if Mr Shum had difficulty hearing the audio recording provided by the 1^st respondent, he would seek assistance from her. The only means of contact with 1^st respondent was her mobile telephone or when she attended the office of Diners. Mr. Shum would also contact 3^rd respondent via his mobile telephone;  and

18.7       Diners had issued invoices dated 18 July 2007, 31 August 2007 and 28 September 2007 to Messrs Anthony Kwan & Co..  Diners received from Messrs Anthony Kwan & Co. cheques in payment of their services which were signed by Mr Kwan Wai Ming who is the sole proprietor of Anthony Kwan & Co.. His firm represented all except 2^nd and 3^rd  accused in DCCC 1280 of 2005 in December 2005. Mr Kwan knew that one of his clients had instructed 3^rd respondent that there were some recordings which needed to be transcribed. Any transcription and translation work in relation to that case was the responsibility of 3^rd respondent.

19.  It will be appreciated, therefore, that the role of 3^rd respondent was separate and distinct from that of 1^st and 2^nd respondents.

Proceedings currently pending in the District Court

20.  The effect of the judge’s ruling was that 1^st respondent’s concern over the prospects of prosecution witnesses colluding in respect of, if not actually fabricating, their evidence were vindicated, at least in part, by the content of the recordings themselves.

21.  As a direct result of the recordings in the witness room two police officers, including the officer who had testified as the second prosecution witness in the trial, have been jointly charged with two offences, viz doing an act tending and intended to pervert the course of public justice and misconduct in public office. They are awaiting trial in the District Court.

22.  The applicant has indicated that he will be relying, in that prosecution, upon the very conduct captured in the recordings initiated by 1^st respondent and which, but for the action taken by the respondents, would likely have gone undetected.

23.  As a result of the evidence which she gave during the voir dire, 1^st respondent in these proceedings has also been charged with two offences, viz doing an act tending and intended to pervert the course of public justice and perjury. She, too, awaits trial in the District Court.

THE PARTIES’ CONTENTIONS IN THESE PROCEEDINGS

24.  None of the respondents required any of the deponents to the affirmations in support of this application to be made available for cross-examination. Similarly, none of the respondents filed any affirmations in reply, nor did any testify. The burden of proof in these proceedings is on the applicant: no adverse inference may be drawn against the respondents for the course they have adopted.

25.  The applicant contends that the conduct of the respondents "... involving the systematic and covert recording of prosecution witnesses and others inside a witness waiting room of the District Court" constituted an improper interference with the administration of justice.

26.  The applicant characterises the respondents’ conduct as a contempt, it being "... designed to obtain an improper evidentiary advantage in the criminal trial, by unlawful means" whilst simultaneously recognising that that same conduct had the positive consequence of preventing an outcome to the trial which properly could have been described as a miscarriage of justice.

27.  It is the applicant’s submission that it is not necessary to establish any intention to interfere with the course of justice, it being sufficient that the conduct itself had the objective tendency or was inherently likely to constitute an interference with the administration of justice.

28.  Conversely, it is the position of 1^st and 2^nd respondents that the applicant is required to establish an intention to interfere with the course of justice which he is unable to do in the present circumstances, it being the respondents’ position that their sole intention, which in the event was achieved, was precisely to prevent a miscarriage of justice. Thus, it is said, their conduct cannot be an interference with, or result in prejudice to, the administration of justice.

29.  The 3^rd respondent goes further, his position being somewhat different from that of 1^st and 2^nd respondents. In addition to adopting the same position as they in regard to the question of intention, it is his submission that his involvement amounted to no more than providing a facility for the transcription of the recordings such that, even if the making of the recordings did constitute a contempt, his conduct simply of  facilitating the recordings being brought from oral into written form could not constitute, by itself, the substantive offence of contempt.

30.  He also submits that, as he was a solicitor's clerk whose principal was representing the husband of 1^st respondent, he had a duty to assist his client by acting on positive information provided by 1^st respondent, especially at a time when, initially at least, the value of the information would not be immediately apparent.

Preliminary issues

31.  In the course of his submissions on behalf of the applicant, Mr. McCoy SC raised several matters, largely in anticipation of them being raised by the respondents. It is convenient to deal with them, briefly, at this stage.

32.  First, whilst the District Court has, by virtue of s. 20 of the District Court Ordinance, Cap 336, statutory power to deal with contempt proceedings of a defined nature, I am satisfied that this court has jurisdiction to entertain these proceedings by virtue of its inherent supervisory powers over proceedings before inferior courts.

33.  This application is brought pursuant to Order 52 Rule 2(2) of the Rules of the High Court. The primary distinction between the equivalent former rule of the rules of the Supreme Court and the present rule is that there is no longer a requirement that contempt proceedings be before two judges. When considering the provisions of the former rule, Hunter and Kempster JJ in In re an application by Liu Lee Yuk-ching [1982] HKLR 399 held that the High Court does have supervisory jurisdiction over proceedings in the District Court which includes hearing applications for committal for contempt where that contempt was committed in the District Court.

34.  It is, moreover, recognised that the power of a District Court judge to invoke the provisions of that s. 20 of the District Court Ordinance "... should be exercised sparingly and with great caution” and  “... only as a last resort... such as where the contempt is clearly proved and cannot wait to be punished." (per Keith J in HKSAR v YAU [1999] 2 HKLRD 633) and, further, that

A criminal contempt is a matter for the Secretary for Justice to raise, acting as the guardian of the public interest in ensuring the protection of the due administration of justice.

(Secretary for Justice v CHOY Bing Wing [2005] 4 HKC 416 §16)

35.  Another matter raised on behalf of the applicant was whether the fact that the witnesses were regularly warned at the commencement of each court adjournment not to discuss their evidence with anyone else and yet apparently did so in defiance of the warning , of itself, would constitute a contempt.  I was "... invited to rule in the absence of any local decision..." that such conduct was contemptuous, thereby following the decision of the English Court of Appeal in R v Jales [2007] Crim. LR 800. Whilst the judge did make reference in his ruling to the fact that he had warned the witnesses not to discuss the evidence, he does not appear to have relied upon that fact in arriving at his decision. Consequently, I do not believe it to be either necessary or desirable to express any general view on this issue.

36.  The sanction sought by the applicant in these proceedings is penal in nature. There is no dispute between the parties that the applicant needs to prove his case against each respondent to the criminal standard : (see, for example,  A.-G v Newspaper Publishing Plc [1988] Ch 333, 361B;  Kao, Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830 §30)

37.  I do not believe it to be either necessary or helpful to embark on a consideration of whether the conduct complained of was conduct "in the face of the court" or whether the witness room where it occurred was within the "precincts of the court". Although there was a tentative suggestion initially on the part of 1^st and 2^nd respondents that it was not, that approach, sensibly, was not pursued in argument. It is only necessary to have regard to the words of Lord Esher, MR, in in re Johnson (1887) 20 QBD 68, 72 to demonstrate the lack of substance in any such contention:

If anyone attempts to interfere improperly with such judicial proceeding, provided it is done with sufficient nearness, it is a contempt; a contempt not of the judge, but of the High Court as a judge of which he is acting. [Emphasis supplied]

see, also, Registrar v Unnamed Respondent [1994] ACTSC 24, §24.

Mens Rea

38.  I turn now to the issue which seems to me to lie at the heart of this application, namely: what does the applicant have to establish by way of mens rea on the part of each of the respondents?

39.  It is to be noted that Mr. McCoy made it clear that when he indicated that it was unnecessary for the applicant to prove intent that he had in mind specific intent to interfere with the administration of justice: he accepted that it remains necessary for the applicant to establish basic intent - that the respondents knowingly carried out the acts concerned.

40.  It would appear that a divergence now has arisen between the approach of the courts in England on the one hand and Australia and New Zealand on the other in regard to the mental element required to be proved in "criminal" contempt proceedings.

41.  Prior to the introduction in 1981 of specific legislation in England relating to contempts Lord Goddard CJ in R v Odhams Press Ltd [1957] QBD 73 stated, at p.80, the test to be:

...whether the matter complained of is calculated to interfere with the course of justice, not whether the authors and printers intended that result, just as it is no defence for the person responsible for the publication of a libel to plead that he did not know that the matter was defamatory and had no intention to defame. It is obvious that if a person does not know that proceedings have begun or are imminent, he cannot by writing or speech be said to intend to influence the course of justice or to prejudice the litigant or accused person, but that is no answer if he publishes that which in fact is calculated to prejudice a fair trial. We would refer to the emphatic statement of the law by a judge of great eminence whose judgements are always received in this country with the highest respect, Palles C.B.. In Rex v Dolan [[1907] 2 I.R. 260], having posed the question of whether a speech on the subject of the motion would have a tendency to prejudice the fair trial of an indictment, the Chief Baron said:

As to the law applicable to the case, there is no doubt. Actual intention to prejudice is immaterial. I wholly deny that the law of this Court has been that absence of an actual intention to prejudice is to excuse the party from being adjudged guilty of contempt of court, if the court arrives at the conclusion which I have arrived at, that there is a real danger that it will affect the trial: or that absence of intention is to excuse the party from punishment. Such a circumstance as that ought, no doubt, to be taken into consideration in considering the nature of the punishment to be awarded, as, for instance, whether it should be imprisonment.

Again this seems to dispose of any suggestion that mens rea, which means a guilty intention, is in any way material except as to penalty.

42.  This approach was specifically approved by Donovan LJ in Attorney General v Butterworth and others [1963] 1 QB 696 where he said, at 726:

I conceive that position, however, to be this. Regina v Odhams Press Ltd makes it clear that an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of his inherently likely so to interfere.

43.  In New Zealand, the full Court, Eichelbaum CJ and Greig J, in Solicitor General v Radio New Zealand Limited [1994] 1 NZLR 48 took a similar view:

In this respect no meaningful distinction can be drawn between interfering with the administration of justice in relation to a pending case, or injuring the system as a whole in relation to its capacity to administer justice in future. The latter must be regarded as of at least equal importance. Accordingly we hold that the mens rea element is satisfied by proof that the defendant knowingly carried out the act or was responsible for the conduct in question. The proof of an intention to interfere with the due administration of justice may assist the conclusion that the publication had the required tendency, and its presence or absence would also be relevant to penalty; but the absence of such an intention will not necessarily lead to the conclusion that no contempt has been committed.

44.  This approach is consistent with the position in Australia. The following passages appear in the judgment of Wilson J in Hinch and Macquarie Broadcasting Holdings Limited v. The Attorney-General for the State of Victoria [1987] HCA 56; (1987) 164 CLR 15:

16. ... One cannot rule out the possibility that an incidental and not intended by-product of a discussion of a matter of general concern may nevertheless exhibit so strong a tendency to prejudice pending criminal proceedings as to warrant punishment for contempt. Conversely, the fact that a publication cannot be excused as an incidental and not intended by-product of such a discussion does not necessarily lead to a finding of punishable contempt.

in the judgment of Deane J:

2. ...While the act of publication must be intentional, an intention or purpose of prejudicing the due administration of justice is not an essential ingredient of this type of contempt of court (John Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p 371). The "critical question is whether the act is likely to have that effect, but the intention with which the act was done is relevant and sometimes important" (per Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ., Lane v. Registrar of Supreme Court of N.S.W. [1981] HCA 35; (1981) 148 CLR 245, at p 258 and see, generally, Registrar of the Court of Appeal v. Willesee (1985) 3 NSWLR 650, at pp 658 (Kirby P.) and 673-676 (Hope J.A.)). Thus, a finding that the publication in fact has a clear tendency to prejudice the due administration of justice may well, particularly in the context of the criminal onus of proof ... be more readily made in a case where the conduct was engaged in for that very purpose than in a case where any such interference would be but an unintended and incidental side effect.

6. Viewed in the context of the common law, there are some unusual features of both the offence of contempt of court by publication and the criminal procedure for its punishment. Thus, as has been said, it is not necessary that the publication be made with an actual purpose or intention of prejudicing the due administration of justice. In that sense, there is no full requirement of mens rea.

and in the judgment of Toohey J:

32. Proceedings for contempt of court are proceedings for a criminal offence. It might be thought therefore that such proceedings cannot succeed unless they establish an intention on the part of the person charged to interfere in the administration of justice. But the weight of authority is now firmly against such a view. The conduct of the person charged must be deliberate in the sense that he must have intended to publish what he did. But that is a far different thing. Intention to interfere in the administration of justice has been held to be a relevant consideration, but its existence unnecessary for a conviction.

45.  These decisions are consistent with the pre-1981 decisions in England.  However, in 1981 the Contempt of Court Act was passed in England which had the effect of limiting the application of the strict liability rule in contempt proceedings. No such equivalent legislation exists in Hong Kong. Consequently, the decisions of the English Court of Appeal as well as views expressed by commentators subsequent to 1981 discussing the question of intent in criminal contempt proceedings need to be approached with caution.

46.  For example, in A-G v Newspaper Publishing Plc, supra, Sir John Donaldson MR said, at 374H, when discussing s. 6(c) of that Act:

I am quite satisfied that what is contemplated, and what is "saved", is the power of the court to commit for contempt where the conduct complained of is specifically intended to impede or prejudice the administration of justice. Such an intent need not be expressly avowed or admitted, but can be inferred from all the circumstances, including the foreseeability of the consequences of conduct. Nor need it be the sole intention of the contemnor. An intent is to be distinguished from motive or desire...

47.  For the sake of the context, s. 6(c) of that Act provides:

Nothing in the foregoing provisions of this Act-... (c) restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice.

48.  Similarly, at 383B, in the judgment of Lloyd LJ:

I would therefore hold that the mens rea required in the present case is an intent to interfere with the course of justice. As in other branches of the criminal law, that intent may exist, even though there is no desire to interfere with the course of justice. Nor need it be the sole intent. It may be inferred, even though there is no overt proof. The more obvious the interference with the course of justice, the more readily will the requisite intent be inferred.

49.  Consequently, the observation of Lord Bingham of Cornhill CJ in A-G v Newspaper Publishing Plc and Others [1997] WLR 926, 936H-937A that "Both parties accepted the test propounded by Sir John Donaldson MR in Attorney General v Newspaper Publishing Plc.”, as set out in §46 supra, falls to be considered in the light of the English legislative regime.

50.  Even so, there still appears to be some uncertainty in England. The learned authors of Alridge, Eady and Smith on Contempt Third Edition, 2005, note when dealing with “The Mental Element in Non-Publication Contempts”, at 11-22:

A question remains, however as to the nature of the mens rea required for common-law contempt outside the context of publication, and particularly with regard to acts of direct interference with the processes of justice.

51.  In Hong Kong in an appeal from a decision of a judge dismissing an application for committal relating to a contempt pursuant to disobedience of an order of court, usually termed a "civil contempt", LePichon JA in delivering her judgment, with which the other judges concurred, said in Kao, Lee & Yip v Koo Hoi Yan & Others [2006] 4 HKLRD 631:

25.       The mental element required for civil contempt lies at the heart of this appeal. A convenient starting point that would be the speech of Lord Oliver in A-G v Times Newspaper Ltd & Another [1992] 1 AC 191 at pp. 217-218:

A distinction (which has been variously described as "unhelpful" or "largely meaningless") is sometimes drawn between what is described as "civil contempt", that is to say, contempt by a party to proceedings in a matter of procedure, and "criminal contempt". One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constituted a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and which can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When, however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice - and intention which can of course be inferred from the circumstances.

That passage highlights the following matters: (1) that there is a distinction to be drawn between civil contempt and criminal contempt in relation to the mental element that is required; and (2) that in civil contempt, liability is strict in the sense that an intention to interfere with or impede the administration of justice is not required.

26.       These were recognised by Ma J (as he then was) in Citybase Property Management Ltd v Kam Kyun Tak (No 1) [2003] 2 HKC 98 at p. 103 which the judge below cited in para. 12 of his judgment. He held that proof of an intention to disobey the order is not required. All that has to be shown is that the alleged contemnor knew the facts which gave rise to the contempt and that the conduct was not accidental.

52.  Unsurprisingly, the respondents rely on the extract from the speech of Lord Oliver quoted by Her Ladyship. That judgment was considered by the Court of Final Appeal in Kao, Lee & Yip v Koo Hoi Yan (2009) 12HKCFAR 830 in which, when giving a judgment with which the other members of the Court agreed, Sir Gerard Brennan NPJ observed:

41.       In criminal law, mens rea relates to the elements of the offence - the actus reus - which are defined by the statute or the common law which creates the offence. These facts are characteristically the external elements of the offence: the specific act or omission of the offender, the circumstances in which the act is done or the omission is made and the result of the act or omission. The requirement of mens rea in relation to any offence depends on the external elements of the offence to which it relates. As Lord Hailsham said in DPP v Morgan [1976] AC 182, 213:

The beginning of wisdom in all the mens rea cases to which our attention was called is, as was pointed out by Stephen J in R v Tolson (1889) LR 23 QBD 168, 185,  that mens rea means a number of quite different things in relation to different crimes.

Leaving aside offences requiring proof of a specific intent, mens rea is negatived if an act or omission is involuntary, or if there is a mistake about the circumstances which make the act or omission a crime or if an element of the crime is a result of the act or omission and the result is accidental. If the proscribed act is done or omission is made without these negativing factors, the offender is said to have a "general intent" or mens rea to commit the offence.

and

45.       ... in Citybase Property Management Ltd v Kam Kyun Tak (No 1) [2003] 2 HKC 98, Ma J, in the course of finding a defendant guilty of civil contempt in breaching an order requiring her to cease using premises for the processing of food, observed (at p.103):

Unlike in criminal proceedings, where mens rea has to be demonstrated, there is no requirement in civil contempt proceedings to show that the alleged contemnor intended to disobey the order (i.e. his conduct was contumacious). It is sufficient to proof (a) that he knew the facts which are said to make his act or omission a contempt and (b) that such act or omission was not accidental.

Although I would doubt, with respect, the dichotomy which Ma J drew between the liability for crime and the liability of civil contempt, it is clear that liability for civil contempt does not depend on a contumacious intent.

46.       Of course, a contumacious disobedience to an order negates the possibility that the disobedience is "casual or accidental and unintentional" and is relevant to the penalty to be imposed for a contempt, but it is not an element to be established in cases of civil contempt by a party directly bound by an order. If the mens rea in civil contempt were to extend to a contumacious intention to breach the order made by court, it would go beyond the mens rea applicable to criminal offences. [Emphasis supplied.]

53.  Whilst the observations were passed in connection with a civil contempt and thus are obiter, they seem to me to be a clear indicator that proof of a specific intent to interfere with the administration of justice would not be a prerequisite for liability for criminal contempt. The first emphasised passage clearly establishes, in terms, that a contumacious intent is not necessary to found liability for a civil contempt whilst the second emphasised passage, in my judgment, only permits of the interpretation that such an intent is not necessary to found liability for criminal contempt - for if it were, requiring such an intent in respect of civil contempt would put it no more than equal to and not "beyond the mens rea applicable to criminal offences".

54.  Further support for the view that, in Hong Kong, specific intent is not a prerequisite to found liability for criminal contempt is to be found in the decision of Chan CJHC and Keith J in Secretary for Justice v The Oriental Press Group Ltd and Others [1998] 2 HKLRD 123. Those proceedings involved two aspects of contempt, first, scandalising the court by the publication of a series of offensive newspaper articles and, second, by a sustained, physical, paparazzi-style pursuit of a judge who was the focus of the newspaper articles.

55.  The court specifically considered the issue of the nature of intention required to be proven in the second situation. When reviewing the judgment of Lord Denning MR in A-G v Butterworth, supra, the court said, at 155:

Donovan LJ did not share this view. On this issue, Donovan LJ said at pp.725 to 726:

The question is whether the respondent's action was calculated so to interfere, and this involves a consideration not of their state of mind on this particular point out of the inherent nature of their act... I conceive the position, however, to be this. A-G v Odhams Press Ltd ex parte Attorney General makes it clear that an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of is inherently likely so to interfere. A newspaper article accusing a man of crime after proceedings have been begun and before his trial plainly answers that description. But there may be other actions where the likely effect is not self-evident, and further enquiry will have to be made... in order to determine the likely effect of what the respondents did one has to enquire into their motives. The mere fact that the court has to do this cannot, in my view, involve the consequence that contempt of court has not been committed.

In other words, Donovan LJ treated the enquiry into the motives of a person charged with contempt of court by interfering with the administration of justice as being relevant to what the likely effect of the alleged act of contempt would have been. He did not hold that an intention to achieve that end it is a necessary ingredient of contempt of court.

We prefer the view of Donovan LJ. As we have said in the context of the mens rea required for the offence of scandalising the court, the importance of public confidence in the due administration of justice justifies Donovan LJ's approach.

56.  That decision was appealed, sub nom, WONG Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293: the appeal was dismissed. Albeit that the specific question of  mens rea was not a ground of the appeal, Mortimer V-P said, at p.315:

Conclusion on the pursuit of Godfrey JA

Much of the reasoning under scandalising contempt is relevant to this contempt. It is not necessary to repeat it.

For my part, therefore, I am satisfied that the Divisional Court applied the correct principles of law and that it was correct in finding that the necessary act had been done with the requisite intention. I would dismiss the appeal on this contempt.

57.  In the circumstances I am satisfied that the applicant need only show basic intent, that is that the respondents intended to perform the acts which constituted the actus reus of the contempt.

The nature of the act

58.  The act which is said to constitute contempt of court is conduct calculated to prejudice or interfere with the due administration of justice, is inherently likely to do so.

59.  In Attorney General v Times Newspapers Ltd [1974] AC 273, Lord Diplock indicated that:

The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction of the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to the court of law, they should be able to rely upon their being no usurpations by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine public confidence that they will be observed is contempt of court.

60.  There is no merit in the initial contention by 1^st and 2^nd respondents, albeit not later pursued, that the court is confined to already established examples of contempt of court.  “Contempt of court has indeed been called ‘the Proteus of the legal world, assuming an almost infinite diversity of forms.’” (per Kriegler J in S v Mamabolo 2001 (3) SA 409, §13).  It will be a matter of fact and degree in every instance whether or not the alleged contempt is made out. “Whether such a risk  has been established will depend on the circumstances of each case including the nature of the act done or the language of the publication used.” - The Oriental Press Group Ltd and Others, supra.

61.  "The offence consists in interfering with the administration of the law; in impeding and perverting the course of justice... It is not the dignity of the court which has offended... it is the fundamental supremacy of the law which is challenged.” per Lord President Clyde in Johnson v Grant 1923 S.C. 789, 790;  “...criminal contempt of court...involve[s] an interference with the due administration of justice either in a particular case or more generally as a continuing process.” per Lord Diplock in A-G v Leveller Magazine Ltd [1979] AC 440; “... the aim and purpose of the law of contempt is to prevent interference with the due administration of justice", per Lord Ackner in A-G v Times Newspapers Ltd and Another [1992] 1 AC 191, 209B; "The issue is whether there was a real risk that public confidence in due administration of justice would be affected", The Oriental Press Group Ltd and Others, supra. It is not confined to pending cases but includes an interference with the proper administration of justice as a continuing process (Butterworth, supra)

62.  What must be shown is that the conduct would generate “...a real risk of interference as distinct from a remote possibility that [it] would undermine public confidence in the administration of justice” Solicitor-General v Radio Avon Ltd, [1978] 1 NZLR 225, 234; "... not ... that the administration of justice in the relevant proceedings has been wholly frustrated or rendered utterly futile. But it is, we think, necessary to show some significant and adverse effect on the administration of justice.” A-G v Newspaper Publishing Plc [1997] WLR 926, 936;   “...a good chance as opposed to a mere possibility.... a real risk that public confidence in the due administration of justice would be undermined.” The Oriental Press Group Ltd and Others, supra;  "The risk or prejudice must be serious, real or substantial."  per Dubin and Brooke JJA in R v Kopyto (1988) 47 DLR (4^th) 213, 290 cited with approval in  WONG Yeung Ng, supra.

63.  It is fundamental that to behave in a manner towards a potential witness in such a manner as to have an adverse effect upon that witness’s willingness to testify or a witness who has already testified will constitute an interference with the administration of justice. Authority in support of this proposition is readily to be found, including in the various decisions relied upon in these proceedings: see, for example, Lord Denning MR in Butterworth, supra at 719  “For there can be no greater contempt than to intimidate a witness before he gives his evidence or to victimise him afterwards having given it.”

64.  The underlying rationale was expressed by the Lord Chief Justice in Simon Runting (1989) 89 Cr. App. R. 243, 245 in these terms:

It should be made clear at the outset that the law insists that a defendant and witnesses, and indeed anyone else who has a duty to perform at a court, whether in a criminal trial or in a civil trial, is entitled to go to and from the court... without being molested or assaulted or threatened with molestation.

There are two reasons for that, it seems to this court. The first is, there must be nothing to create in the minds of such persons any fear such as to make them less likely to wish to come to court to carry out their proper functions. The second reason, which is perhaps more difficult to put adequately into words, is this: that the authority and dignity of the court require that those who attend the court to carry out their duties should be allowed to do so without let or hindrance, and again without fear of molestation. [Emphasis supplied]

65.  It is fundamental to the due administration of justice that, just as a litigant is able to have confidence in the application of the protection afforded to him in the course of litigation by legal professional privilege, so should a person attending court to discharge a duty be able to have confidence that his communications will not be the subject matter of surreptitious monitoring by others.

66.  To tolerate a situation whereby conversations whether related or entirely unrelated to proceedings before the court, conversations perhaps intensely personal in nature, may be recorded at will and the recordings used at the whim of the person making them, is to invite a distrust of the judicial system by potential users.

67.  It seems to me self-evident that there is a substantial risk that litigants and potential witnesses who are required to attend court understandably will be deterred from attending "... to carry out their proper functions" if  a perception exists that their consultations and conversations may be subject to regular or random eavesdropping and recording by a third-party, even though those consultations and conversations involve no misconduct on their part.

68.  In the words of  Lord Denning in Butterworth, supra, at 719:

If this sort of thing could be done in a single case with impunity, the news of it would soon get round. Witnesses in other cases would be unwilling to come forward to give evidence...

69.  It follows that I am satisfied that the conduct of unauthorised recording of conversations of witnesses or potential witnesses at court will constitute a contempt of court.

Applicability to this application

70.  I turn to consider the application of those principles to the facts of this application.

71.  I am prepared to accept, for the purposes of this application, that the 1^st respondent was motivated initially to set the recordings in train as a result of overhearing the conversation involving Sparerib - rather than simply as a general tactic as part of the defence case - and that the 2^nd respondent was motivated by friendship.

72.  I have a measure of understanding for the view that she expressed in evidence that if she had simply reported the conversation which she had overheard she may have been disbelieved.

73.  That her motive may have arisen out of loyalty to her husband and been driven by her fears of collusion between prosecution witnesses, which turned out to have been well founded, does not prevent her conduct from constituting a contempt of court. At the risk of repeating that which is already well-established, motive and intention are two different concepts. Those matters are relevant to any punishment that is to be imposed.

74.  I accept that in certain circumstances such a well-founded motive may go further: it may reduce the contempt to one that is to be regarded as purely technical in nature and not worthy of pursuit. I am, however, firmly of the view that such is not the case here.

75.  The conversation which was overheard by 1^st respondent occurred towards the end of April 2007. The 2^nd respondent was recruited. Recording commenced on 7 May. What 1^st respondent said she was hoping to achieve, an aim that was adopted by 2^nd respondent, was to obtain corroboration of the intention implicit in the conversation she had overheard. On their own evidence they had obtained that corroboration by, at latest, 10 May, the content of that early recording being regarded as particularly significant by the judge who singled it out as being “open to the interpretation that suggestions are being made as to how to answer future cross-examination”.

76.  Yet despite being armed with what was plainly sufficient evidence to support her claim, they continued over the following four months to make further recordings and thereafter deliberately withheld the information which all along was in their possession until the very last day of the prosecution case.

77.  I do not accept that 1^st and 2^nd respondents were ignorant of the significance of the material which came into being on 10 May. The 1^st respondent was an experienced police officer who was looking for confirmation of collusion and who could not have been other than fully aware of the fact that the recording of 10 May was just what she needed. It would stretch incredulity to breaking point to suggest that she had not discussed this issue with her husband who, as a retired police officer also, would have been as aware as she would have been of the implications of that recording.

78.  That she was aware of its significance is clear from her own evidence during the voir dire when she indicated that it had been her intention, at first, to only produce that recording.

79.  Recording beyond 10 May was not for corroborative purposes. There was plainly a desire to secure a tactical advantage for the defence with a view to manufacturing an acquittal.

80.  In the circumstances of this case, not only did the conduct of 1^st and 2^nd respondent prospectively constitute an interference with the proper administration of justice as a continuing process but it had an immediate adverse effect on the proceedings in progress.

81.  If the allegations made by 1^st respondent supported by the recording of 10 May had been made known to the judge it seems to me highly probable that he would have been able to take steps which would have resulted in the trial beginning de novo or, at the very least, being aborted at that stage saving a substantial amount of judicial time not to mention a vast amount of public funds.

82.  I am satisfied that the applicant has established beyond reasonable doubt that the conduct of each of 1^st and 2^nd respondents amounts to a contempt of court.

83.  The 3^rd respondent is in a somewhat different position from two perspectives: first, his actual conduct and, secondly, the nature of his role in regard to the proceeding trial.

84.  As to his conduct, the agreed facts established that he was not involved directly in any way with the creation of the recordings and the applicant has accepted that 3^rd respondent was not initially aware of the nature and provenance of the recordings. There is no information as to when he did become aware of that.

85.  His activities were limited to facilitating the conversion of those recordings, which already existed, into written form. For the reasons I have given it is the making of the recordings which constitutes the contempt of court. The creation of transcriptions, and their translation, add nothing to the effect on the administration of justice of the conduct of 1^st and 2^nd respondents and, in themselves, do nothing to adversely affect it.

86.  As to the second aspect, I note that he was effectively fulfilling the role of counsel’s instructing solicitor throughout the trial. There can be no doubt that once he became aware of the provenance of the recordings, and what they sought to establish, it was incumbent upon him to ensure that the matter was invited to the attention of counsel forthwith in order that the judge be informed of the position expeditiously. That singular failure on his part and his acquiescence in the conduct of 1^st and 2^nd respondents, however, does not go sufficiently far in my judgment as to found criminal liability for contempt of court, whatever other consequences it may have.

87.  Consequently, I am not satisfied that the applicant has established his case against 3^rd respondent.

88.  The matter is to be relisted, in accordance with counsel’s diaries, for submissions on the question of penalty in respect of the 1^st and 2^nd respondents.