R. v. KO YIM FAN

IN THE COURT OF APPEAL

1992, No. 244
(Criminal)

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Reasons handed down: 9 June 1993

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Ko Yim Fan - "the applicant" - appeared for trial before His Honour Judge Hartmann on a charge sheet containing two charges. The first, perjury contrary to section 31 of the Crimes Ordinance, Cap. 200 - "the Ordinance" - and its particulars were that she on the 7th August 1989 being a person lawfully affirmed as a witness at a trial in South Kowloon Magistracy (case No. K3158 of 1989 - in which Tse Chi Cheung was defendant) wilfully made a false statement at that trial: that is that she was unable to identify Tse Chi Cheung as one of her assailants, knowing the statement to be false or not believing it to be true.

The second charge, stated to be an alternative to the first, was that of making a contradictory statements on oath, contrary to section 39 of the Ordinance.

3. At the conclusion of the trial - which apart from the evidence of Madam Ko herself was a "paper" trial - Madam Ko was, on 16th June 1992, convicted of perjury. No verdict was rendered on the alternative charge.

4. Madam Ko - who will be referred to from now on as the applicant - sought leave to appeal against her conviction and, if necessary, her sentence of 6 months imprisonment. At the conclusion of the hearing we refused the conviction application: stated we would give our reasons later and adjourned the matter of sentence calling for a Social Welfare report.

5. The somewhat convoluted background facts to the proceedings which were brought against the applicant - and these are, in general, admitted, were that in February 1989 the applicant was a Mamasan in the Liza Night Club in Nathan Road. On the night of 17th February a Mr. Tse Chi Cheung - "Mr. Tse" - visited that club. He had a conversation with one of the hostesses whom, it would appear, told him that the applicant did not like his presence in the club. A confrontation between the applicant the Mr. Tse took place. This developed into an assault upon the person of the applicant which was carried out by a number of men.

6. The applicant was injured, taken to hospital and then made a report to the police. In that report she accused Mr. Tse of being one of the men who assaulted her. In a later statement, made after she had identified Mr. Tse in a police station, she went into detail as to the circumstances and the manner of the assault. As a result Mr. Tse was arrested and charged with assault occasioning actual bodily harm.

7. The trial of Mr. Tse took place on 7th August 1989 in South Kowloon Magistracy. In the course of it, the applicant - the main prosecution witness - stated that, while there had been a confrontation between herself and Mr. Tse and while she had been assaulted, she did not see Mr. Tse himself in the course of that assault. The applicant was not pressed in examination in chief by the person then prosecuting. Mr. Tse was acquitted, no further evidence being offered at that point.

8. On 9th August 1989 Mr. Tse complained to the Independent Commission Against Corruption that the applicant and her friends had approached him, after the trial in the Magistracy had concluded, and demanded from him the sum of $5,400 as compensation. Mr. Tse made an allegation that threats had been made to him and that the matter involved some form of police corruption. The Independent Commission investigated.

9. That investigation took on a wider aspect in that the investigators came to the conclusion that it was Mr. Tse who had first approached, through someone else, the applicant asking her not to testify against him. It was thought that she had been told that, if she followed this request, she would be given compensation for her injuries. It was further thought that, after discussions, this had been agreed and was eventually carried into effect by her failing to identify Mr. Tse in the course of the trial in the Magistracy.

10. As a result of all this, Mr. Tse, a third person and the applicant were arrested and charged with conspiracy to pervert the course of justice. In the course of this instant trial evidence given in the conspiracy trial was presented to the effect that, while under arrest and travelling in a car belonging to the Independent Commission, the applicant admitted that she had been assaulted by Mr. Tse and that she had agreed not to testify against him at the Magistracy trial. This alleged admission is disputed by the applicant.

11. The conspiracy trial took place in the District Court in December 1990 and in the course of it the applicant gave evidence. At its conclusion all the accused were acquitted. We do not have, nor did the trial judge here, the advantage of the reasons for that acquittal. However, the transcript of that trial was, as we have indicated, introduced into evidence in this instant trial. It recorded the applicant as stating that Mr. Tse had assaulted her and an admission by her that she had lied in her evidence in the Magistracy trial. On the face of it, an equivocal admission, on oath, of perjury.

12. That which transpired in the course of the evidence at the conspiracy trial led to the charge which we have for consideration here.

13. Mr. Wong, who appeared for the applicant both here and below, after the pleas in this instant trial had been taken applied, first, for a stay of proceedings on the grounds that a plea of autrefois acquit was open to the applicant; second, that the institution of the perjury proceedings were oppressive, vexatious and an abuse of the process. He raised a third issue in the course of those preliminary submissions but that was abandoned.

14. The trial judge ruled against both the submissions.

15. In the course of the subsequent trial Mr. Wong objected to the admissibility of portions of the transcript of the conspiracy trial which contained, on the face of them, the admission of perjury. This objection was on the grounds that the answers given were not voluntary and, alternatively, if they were admissible the judge should have exercised his discretion on the grounds of unfairness to exclude them from evidence. It was further submitted that the judge in the conspiracy trial did not, under the provisions of section 10 of the Evidence Ordinance, warn the applicant against self incrimination.

16. At the conclusion of the case for the Crown, based as it was on agreed documentary evidence, a submission of no case was made by Mr. Wong on the basis that the contents of that documentary evidence were insufficient to prove the offence charged.

17. The trial judge ruled against all these submissions whereupon the applicant neither gave nor called evidence. In his final submission, Mr. Wong, relying on the contents of the documentary evidence, but of course without the benefit of any evidence from his client, raised a defence of duress. The suggestion of duress stemmed from references by the applicant made in the course of the conspiracy trial to the assault by Mr. Tse, to the applicant's fear of Mr. Tse and to her statement that she told lies because she was afraid Mr. Tse might get people to go to the Night Club and caused trouble. The trial judge found that duress did not exist. While his finding is disputed in Mr. Wong's grounds of appeal this issue was not pursued.

18. All these issues - with the exception of duress - are raised again by which Mr. Wong before us; in order, they are: the autrefois acquit issue, grounds 1, 2, 3 and 4; the stay proceedings issue, grounds 5, 6, 7, 8 and 9. In addition, ground 10 alleges that the trial judge was wrong in failing to distinguish between an unwilling witness and a lying witness; ground 11 alleges that the judge was wrong to rule admissible the transcript evidence of the applicant in the conspiracy trial - described in that ground as "the cautioned statement" - and failed to consider the weight to be attached to the evidence shown on the transcript. In his final ground, ground 14, it is alleged that the conviction is unsafe and unsatisfactory.

19. Dealing first with grounds 10 and 11. Although these fall to be considered in the context of grounds 1 to 9 - for if the evidence of the transcript of the proceedings - exhibit P6 - at the conspiracy trial were properly before the judge in this trial then that showed the applicant to have, quite clearly, lied in the magistracy trial. Not that she was a mere unwilling witness in the course of that trial.

20. The "cautioned statement" - as Mr. Wong sees fit to describe it - were answers given, in cross-examination, to counsel then appearing on behalf of the Crown. Those answers were sworn testimony given in the course of a trial. What had happened was this. In the course of the conspiracy trial before His Honour Judge Moylan, the applicant had had put to her the statement she originally made to the police. She was questioned in relation to its contents. She denied certain portions of it as having been told to the police but accepted that she did tell the investigating officer that "Chi Cheung", as Mr. Tse was called in the course of that cross-examination, had punched her with his right fist on the right side of her mouth. Other portions describing what Mr. Tse had done she denied telling the investigating officer. But she accepted that she had told that officer that Mr. Tse had pulled her hair. She also involved Mr. Tse's friends in the assault and had stated that Mr. Tse had told those friends to beat her up. She said that she herself was illiterate and could not read the recorded statement but accepted that it was read over to her, but "very fast". She alleged that she could not hear clearly (p.117).

21. As to the evidence she gave in the Magistrates Court - the transcript of which was exhibit 5 in this instant trial she stated that she had not said that Mr. Tse had assaulted her because she was afraid he might get people to come to the Night Club to cause her trouble. It was then put to her:

"Q. You agree therefore that you didn't tell the Court, at A1's trial, the truth?

A. Yes.

Q. You agree with me on that?

A. Yes.

Q. And when you told Mr. de Boinville that you had told the Court at A1's trial the truth, you were lying?

A. I mean that I had mentioned him.

Q. Suggest you lied to the Court at A1's trial, not because you were afraid that your family might be troubled ...

A. Disagree.

Q. ... but because you were acting pursuant to an agreement between you and A1 reached prior to his trial.

A. Disagree."

Questions were then directed to the applicant suggesting that there was an agreement that, if she did not testify against Mr. Tse at his trial, he would compensate her and that a meeting, which took place immediately after that trial, was to further that agreement and to settle the exact amount of compensation she would be paid. To these suggestions she disagreed.

22. The applicant was also questioned in relation to that which officers of the Independent Commission had said in evidence of a conversation she had with them in the car after her arrest on the conspiracy charge. She denied a great deal of that but admitted certain portions. The denials related mainly to that which was inculpatory.

23. First of all, on the face of it, what the applicant said on oath in the course of the conspiracy trial clearly indicated that, in the course of the magistracy trial when she gave evidence saying of the assault carried out upon her in the Night Club:

"I was going to ask the hostess to go to another table but the whole group wouldn't let me go and I was assaulted. I couldn't see who hit me first, there were so many. I didn't see if the defendant was there at the time. There were over 10 people there and there were 6 to 7 of them while I was assaulted, the defendant I did not see. The assault lasted about 10 minutes."

This was not the truth (p.75).

24. It is clear from all this that, while the applicant may have been unwilling to give evidence, nevertheless she was clearly a witness who told lies in court.

25. The evidence given in the conspiracy trial was not, in the accepted sense of that phrase, "a cautioned statement". She was, as the trial judge here found, not compelled to give evidence in that conspiracy trial. She chose to do so. In so doing, she made herself ameanable to cross-examination. The cross-examination was in no way improper. Indeed, it would have been obvious that counsel prosecuting for the Crown would put to her the contents of her statements and ancillary matters. This must have been foreseen by the applicant's legal advisers in the course of the conspiracy trial. She was quite free to either agree or disagree with the matters put to her by counsel prosecuting. It matters not whether those questions were leading questions. It is correct that in her evidence in chief at the conspiracy trial she did not admit to having told untruths as in the magistracy. But the fact remains that, unfocused as her evidence might have been, the passage which we have cited is clearly an admission of perjury. The judge had before him the whole of the transcript. We do not fully appreciate Mr. Wong's point, made in his ground 12, that it was necessary for the judge to consider what weight he should give to what is termed the "admission". Evidence on oath is in a very different category to that said in an extra judicial statement. The judge was entitled to place full weight, having apprized himself of the context, on that which the applicant saw fit to say.

26. Should the trial judge have warned the applicant in the terms of section 10 of the Evidence Ordinance? The answer, in our judgment, is in the negative. In the conspiracy trial the essence was the proof of an agreement. Clearly the prosecution was seeking to bolster their case as to the existence of that agreement by that which occurred in the Magistrates Court and before and after it. They were entitled to do so. It was not for the judge to consider what if anything might transpire at some other time in some other place from answers given in the course of the trial unless it is plainly obvious - and we note that there was no request raised by counsel for a warning to be given - that such a warning is necessary. In the context of the conspiracy trial there was no requirement that such a warning be given.

27. Turning now to the two main grounds of appeal - autrefois acquit and stay.

28. On the first, the main plank of Mr. Wong's argument is that the applicant not only could have but should have been charged with perjury concurrent with the conspiracy charge. Perjury was a necessary concomitant of the conspiracy to pervert the course of justice. The same evidence related to both. With respect, we do not agree. The essence of the conspiracy charge was an agreement to pervert the course of justice. The particulars of the conspiracy alleged that the conspirators conspired in "not giving evidence implicating the said Tse Chi Cheung at the said trial." The agreement the Crown sought to prove was one which had taken place before the trial in the Magistrates Court but was implemented by the manner in which the applicant gave evidence in that court. The prosecution were in difficulties in preferring a charge of perjury. We do not consider that the trial judge's description of the evidence existing at the time of the conspiracy charge as to perjury as being "very fallible". What the prosecution had was, first, the statements which the applicant had made after the assault; second, the evidence in the Magistrates Court; third, that which the applicant said to the officers of the Independent Commission in the car after her arrest for conspiracy to pervert the course of justice; and fourth, a statement in the course of a video interview. The prosecution were in no position to prove beyond doubt where the truth lay (cf: R. v. Tsang Bing Nam [1981] HKLR 550). It must be remembered that the conspiracy to pervert the course of justice involved not only the applicant but also Mr. Tse and the intermediary. Had the prosecution attempted to charge the applicant with a single substantive count of perjury in addition to the conspiracy charge and at the same trial we have little doubt that they would not have been permitted to do so by the trial judge.

29. Mr. Wong has placed reliance on both Connelly v. DPP [1964] AC 1254 and DPP v. Humphrys [1977] AC 1. Mr. Wong accepts that the argument on both the main issue tends to overlap, in particular, the arguments on the stay using that which Lord Hailsham said at page 40 D of Humphrys:

"In an indictment for perjury like the present I would think that it is the duty of the court to apply the double jeopardy rule against the Crown not as a matter of discretion but as a matter of law where it is satisfied in substance that all the prosecution is doing is trying to get behind the original verdict by re-trying the same evidence. But where the prosecution by calling additional evidence which it could not have had available using reasonable diligence at the time of the first trial is in substance as well as in form putting the accused in jeopardy not for the original alleged misdemeanour of which he has been acquitted (or convicted) but for his crime against justice committed by perjuring himself at the first trial, there is no double jeopardy and the prosecution is entitled to adduce the evidence and make the assertions necessary to achieve its purpose whether or not the effect is to give rise to the inference that the previous verdict of acquittal was insupportable, or the previous conviction and punishment right."

30. In his consideration of the decision in Connelly Lord Hailsham said at page 40 A, leading up to the passage we have just cited,:

"In spite of their use of the words 'issue estoppel' as a convenient label I attach the same meaning to the speeches of Lord Hodson and Lord Pearce. The doctrine in criminal proceedings is aimed at the need to prevent double jeopardy and not at the need to effect finality in litigation. It is thus aimed at verdicts rather than issues, and though issues may sometimes be isolated and examined to see whether there has in fact been a danger of inconsistent verdicts and thus a double jeopardy (and where there is, the second prosecution is prohibited), where there is no such double jeopardy involved in the case the prosecution is not prohibited from adducing evidence or making assertions the incidental effect of which is to cast doubt on a previous verdict."

Lord Hailsham went on to make it clear on the same page that if, as we have indicated, all the Crown is doing is trying to get behind the original verdict by re-trying the same evidence, then double jeopardy exists and they cannot be permitted to do so.

31. In our judgment that was not what the Crown was attempting to do here. We agree with the trial judge that any evidence of a lie at the Magistrates Court was incidental to the conspiracy charge. It was the agreement that the Crown had to prove and that was an agreement to pervert the course of justice: whether by a lie or by some other means: by failing to implicate Mr. Tse in the assault upon the applicant. The charge of perjury which we have for consideration was different both in substance and in form from the conspiracy charge. We do not consider that anything that has been said in either Connelly or Humphrys to preclude the Crown from taking the course they did here.

32. As to the second issue the stay. There is undoubtedly a discretion in a trial judge to stay if he is of the view that the court's process is being abused. The matter was very fully considered by Judge Hartmann. This was not a case where an accused, who commits perjury when he goes into the witness box, is subsequently charged because of it. As Lord Salmon said at page 47 C of Humphrys:

"It is almost unheard of for those who have been convicted in spite of their lies to be prosecuted for perjury save in the most exceptional circumstances - and rightly so. A charge of perjury after a full trial in respect of another offence, in which the prosecution has failed to persuade a jury that the accused was lying and that he was guilty, could in some circumstances smack of an attempt by a disappointed prosecution to find what it considered to be a more perspicacious jury or tougher judge. This would in reality be putting the accused in double jeopardy.

Although the form of charge would be different from that of the charge upon which he had already been tried and acquitted, the true substance of the charge would be the same. It is of great importance that in such as case, if it arose, the courts should not hesitate to exercise their inherent powers in relation to prosecutions which are oppressive and an abuse of the process of the court. There are, however, exceptional cases in which prosecutions for perjury are fully justified after an acquittal, for example, cases in which a man acquitted of a crime subsequently earns substantial sums of money by writing articles for the Press explaining how in fact he committed the crime and deceived the jury by the ingenious lies he had told in the witness box ..."

Lord Salmon there refers to H.M. Advocate v. Cairns [1967] JC 37 which has also been relied upon by Mr. Wong.

33. Here the applicant while acquitted of the conspiracy to pervert the course of justice charge - for, as we have said, reasons of which we are not aware - is not being recharged for matters which were the true substance of the conspiracy charge. It is the applicant's evidence in that conspiracy trial which is being used in this instant trial to prove perjury in the Magistrates Court. She was not, in the course of the conspiracy trial, placed in jeopardy or being convicted of perjury. The fact that she was acquitted in the conspiracy trial does not in our view prevent the Crown from seeking to use that evidence for the purpose of bringing the prosecution here home. That being so, there was in our view no abuse on this argument and the judge was right so to find.

34. We do not consider, as Mr. Wong suggests it was, that the reason why no charge of perjury was joined with the conspiracy charge, was to allow the prosecution to gather further evidence for the purposes of a perjury trial. It could not possibly know what evidence the applicant would give, if indeed she gave evidence at all, in the course of the conspiracy trial. In the event, we find no unfairness, oppressiveness or abuse of the process of this court in the bringing of this perjury charge. This conviction is neither unsafe nor unsatisfactory.

Sentence

35. We have had the benefit of the Probation Officer's Report which we ordered on the last occasion when this matter was before us and we have drawn the attention of counsel to The Queen v. Lui Kwok Wai, Criminal Appeal No. 21 of 1991 (unreported) which considered the appropriate sentence for the offence of perjury. Submissions have been made upon it. We have also had the benefit of general submissions by Mr. Wong on behalf of the applicant.

36. The sentence was one of 6 months imprisonment. At the conclusion of the hearing we stated that we were not disposed to interfere with it, refused leave to appeal and stated we would give our reasons at the same time as we handed down reasons in respect of the conviction application.

37. As Judge Hartmann rightly observed in preparing to pass the sentence he did:

"Perjury is a most serious offence. The statute lays down a penalty of seven years imprisonment. The reason why is looked upon so seriously is obvious. Our system of law depends upon witnesses who have made a solemn pledge to tell the truth doing exactly that. A witness who lies may help to put an innocent man into prison or keep a guilty man free. A witness who lies undermines the whole process of our system of justice. And without justice our whole society is placed in jeopardy."

38. Later in his Reasons the trial judge stated that he had taken into consideration that the applicant was originally the victim of the assault, that she had suffered the stress of two earlier trials and that she had been placed in severe emotional and economic strain. He took as his starting point a period of 12 months imprisonment but, because of the factors above set out, he considered a substantial discount was warranted. He balanced the public interest against the particular circumstances of this applicant.

39. Mr. Wong in his submission has emphasised those matters of mitigation and has suggested that this applicant comes within the lowest category of perjury offenders - other than the man who commits perjury in the course of giving evidence in his own defence.

40. We have considerable sympathy with this applicant, but then so did the sentencing judge. We bore in mind the various matters set out in Lui Kwok Wai - and the line of cases relating to sentences for perjury mentioned in that decision. We did not think that, giving all the credit that we could for this applicant's circumstances, the judge was in error in the sentence he imposed.