HKSAR v. CHEUNG LUNG FONG AND ANOTHER

HCMA 618/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 618 OF 2003

(ON APPEAL FROM TWCC 375 OF 2003)

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J U D G M E N T

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1. Both appellants were charged in the Magistracy with a charge of "Conspiracy to Pervert the Course of Public Justice" and after trial, they were both convicted. They now appeal against their conviction.

2. Both appellants were represented by counsel at the trial. Altogether the Prosecution called seven witnesses in the case. The main witnesses were PW3, Leung Kam Tin who was according to the Prosecution charge, approached by both appellants and told that they could arrange the witnesses in his case to leave for China and they would not turn up at the identification parade to testify against him.

3. PW3's evidence was straightforward. He said that he had been telephoned by someone and that a meeting was arranged in order to discuss his forthcoming identification parade. PW3 reported this to the police and subsequently when PW3 went to the appointed place at the appointed time, he was accompanied by an undercover police officer who was later called to give evidence as PW4.

4. PW4 went along to the meeting equipped with a tape-recorder. Only the 1st Appellant that is D2, the 2nd Defendant, attended the meeting. During this meeting, there was discussion between D2, that is the 1st Appellant, and PW3 at which PW4 listened in about the sum of money to be paid. The tape-recorder was switched on but it was subsequently discovered that it had failed to record due to a defect or a malfunction.

5. Now during this negotiation in the karaoke lounge, D2 had made several calls allegedly to someone who had authority to decide on the amount of money to be paid and his nickname was "Australian Guy". And of course PW3 and PW4 could not see who was on the other end of the telephone, but the Prosecution produced Exhibit "P4" which is the telephone record of the Hutchison Telecommunication and in that record, it showed very clearly that D2 had made a total of 6 calls on his mobile phone to D3's mobile phone from 23:16 p.m. on 10 April to 00:22 a.m. on 11 April. These calls did not last very long, the longest call was 4.5 minutes.

6. Prosecution also called one of the witnesses who had subsequently attended the identification parade of PW3 on 11 April and had correctly identified PW3. Her evidence was that she was never approached by D3, who is the 2nd Appellant.

7. The learned Magistrate had considered the various inconsistencies between the various witnesses and he came to the conclusion that he was not impressed by PW3 and that at the end of the day, he could only accept the parts of the evidence of PW3 that was supported by PW4 or other evidence. He accepted the fact that PW3 had been arrested and had been due to attend an identification parade at the time when he was approached. He decided, at the end, that he believed PW4's account of the conversation that had taken place in the karaoke and that his account would have more weight than that of PW3 if there was a discrepancy between them. He was impressed with the evidence of PW4 and although PW4 could not give word for word account of the conversation, he managed to give the main gist of what was said.

8. The Magistrate recognised that there has been a slight variation between PW4's Witness Statement and his evidence in court but this did not affect his ultimate finding of the reliability of PW4's evidence, and also he was alive to the fact that PW4 may have, on some occasions, mixed up whether it was an incoming or outgoing call.

9. The learned Magistrate also dealt with the evidence given by D2 and also that of D3, but he decided after analysing their evidence that neither defendants were worthy of belief as their evidence did not have the ring of truth about it.

10. The appellants were unrepresented by counsel on the appeal. The 1st Appellant's grounds of appeal are in relation to the findings of fact by the learned Magistrate. He claimed that the learned Magistrate in not believing that this person called "Ah Yau" existed was unfair to him, and, that is not a valid ground of appeal because Ah Yau, if he did exist, he was never called. The Appellant claimed he was missing, so the Magistrate was entitled to find on the evidence before him to doubt this person called Ah Yau.

11. The Magistrate, it is complained, should not have believed PW3, PW4 and PW7 because the 1st Appellant said PW3 made up a lot of things and he was the mastermind of this offence. Again it is a matter for the Magistrate to decide on who he believed. He challenged the fact that the tape-recorder was defective because he found that unbelievable. The learned Magistrate did listen to the evidence before him and at the end of the day, he found that he believed the evidence of the Prosecution witnesses that the tape-recorder had malfunctioned at the crucial time. He finally complained that the Prosecution failed to call a witness called Cheuk Yung Kan who was listed as the 1st Prosecution witness in the Summary of Facts. The Prosecution had a discretion to call which witnesses they wanted or not want.

12. The Appellants were represented by counsel in the court below. If counsel had felt that this witness could give evidence which is important to the defence, then counsel was at liberty to request that this witness be tendered or that this witness be called for the defence with the assistance of the Prosecution. This was not done and it is not a valid ground of appeal.

13. As for the 2nd Appellant, the 2nd Appellant had written a long letter to this court, a copy of which was given to the Respondent. In his written submissions, he had listed some 12 grounds of appeal and most of them are in relation to the fact in this case.

14. In the 1st Ground he questioned why D1 was tried together with himself and D2. No application was made by either counsel at the trial to sever this trial so the Appellant cannot complain now about this.

15. In relation to the 2nd Ground, the charge against him very clearly stated that it is in relation to Leung Kam Tin's case, so there was no avenue for a misunderstanding as the Appellant alleges that he was not sure whether it was a relation to D1's case or Leung Kam Tin's case, and then again, the 2nd Appellant also complains that PW3 was found to be unreliable by the Magistrate and why the Magistrate had accepted some of his evidence and again, as I have said that the Magistrate only accepted his evidence where it was corroborated by other evidence.

16. He complains about the telephone calls. He says that although D2 alleged that the telephone calls were made to him, there is no evidence it was to him and the telephone record stated that it was not him. It was pointed out that in Exhibit "P4", the telephone records do show that a total of six calls were made to his telephone number at the relevant time.

17. As far as the tape is concerned, his 5th ground of appeal, I have already dealt with that.

18. His other grounds are in relation to what meaning should be put on his words and whether the fact that the Magistrate found as a fact that he was the person who was in charge and could decide the amount was a finding that the Magistrate had an absolute discretion to find.

19. Finally in his 10th ground of appeal, he said that the Magistrate was wrong when he said that D3 did not recognize D2's voice. The learned Magistrate did not say that it was D3 who did not recognise D2's voice but rather, the other way round, as I have explained to the Appellant.

20. And finally, his last two grounds were, the learned Magistrate did not consider his reasons for being in the vicinity at the time of his arrest and the fact that he did help the police locate two witnesses. These are matters that the learned Magistrate had considered as to why he was in the vicinity but as far as the fact that had helped the police locate two witnesses, that is not of relevance.

21. So having considered and read the learned Magistrate's Statement of Findings, admittedly, it could have been written in a more clearly set out form, but upon reading his Statement of Findings, I am satisfied that he had considered the relevant issues in this case and had come to a proper finding of the facts. I find no merit in the grounds of appeal in relation to the appeal against conviction, so the convictions stand and the appeals are dismissed.

Appeal against Sentence

22. The appellants were convicted after trial of one charge of "Conspiracy to Pervert the Course of Public Justice". It is clear from the fact that the learned Magistrate found that D2, that is the 1st Appellant was a negotiator and the 2nd Appellant was the mastermind behind this or the person with authority. The learned Magistrate, after conviction, called for reports on each defendant.

23. In relation to D2, he had three previous convictions, nothing similar. His last conviction was in 1995. In the Probation Officer's report, D2, i.e. the 1st Appellant admitted his part in this offence and said that it was the 2nd Appellant who had asked him to help settle the issue and request PW3 for compensation and that he claimed that he was the middleman, so he did show some remorse.

24. D3, the 2nd Appellant, the Probation Officer's report set out his background and the fact that he had once been a drug addict. But he no longer is addicted. The 2nd Appellant had three previous convictions, nothing similar. His last conviction was in 1998. When he spoke to the Probation Officer, the 2nd Appellant also admitted his remorse and said that he was only intending to get compensation for PW1 who was assaulted by PW3's men.

25. It is clear that there is a background to the offence, but the charge is a very serious one. Whatever the reason behind the asking for money from Leung Kam Tin, the fact is he was approached and asked for money, in order that the witnesses who was supposed to identify him would not be available. So in a case like this, the family background of either defendant would be important in this case for consideration because as the learned Magistrate said, it strikes at the heart of the system of law enforcement and the justice system. The 1st Appellant says that he thinks he should be given a lesser sentence because of another case of a similar offence which involves a singer, Nicolas Tse, he said the policeman in that case who was only given 6 months.

26. Conspiracy to pervert the course of public justice encompasses a wide range of cases and one cannot compare the sentence given in another case with the present case. The facts are different, the circumstances are different. But in this case, the police were investigating an important criminal offence which PW3 was alleged to have committed. For the appellants to make such a blatant offer to him in order to make the witnesses disappear, it is truly in the more serious category of this type of offences. I have read the learned Magistrate's Reasons for Sentence, I do not find that his sentences on either appellants were manifestly excessive or wrong in principle, so the appeal against sentence is also dismissed.