HKSAR v. LEW MON HUNG

[English Translation – 英譯本]

CACC 66/2016

[2018] HKCA 116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 66 OF 2016

(ON APPEAL FROM DCCC NO 819 OF 2013)

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J U D G M E N T

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Hon Poon JA (giving the judgment of the Court):

A.    Introduction

1.  The applicant Lew Mon-hung was charged with one count of “Doing acts tending and intended to pervert the course of public justice”, contrary to Common Law, the particulars of which are:

“ Lew Mon-hung, between the 9^th day of January 2013 and the 10^th day of January 2013 (both dates inclusive), in Hong Kong, with intent to pervert the course of public justice did a series of acts which had a tendency to pervert the course of public justice in that he, by two e-mails dated 9 January 2013 addressed and transmitted to Mr Leung Chun-ying, Chief Executive of the Hong Kong Special Administrative Region and Mr Peh Yun-lu, Commissioner of the Independent Commission Against Corruption respectively and a letter dated 10 January 2013 addressed and sent to Mr Leung Chun-ying and copied to Mr Peh Yun-lu, sought by asserting his past dealings and association with Mr Leung, by threat or by intimidation to influence Mr Leung and/or Mr Peh to terminate an investigation being carried out by the Independent Commission Against Corruption against him and/or others.”

2.  The applicant pleaded not guilty and the trial was conducted before HH Judge Yiu (the trial judge). The trial commenced on 4 January 2016 and lasted for 9 working days.  On 29 February 2016, the applicant was convicted by the trial judge and sentenced to 18 months’ imprisonment.  The Reasons for Verdict were delivered by the trial judge on the same day.

3.  The applicant sought leave from the Court to appeal against conviction.

B.    The Prosecution Case

4.  In the trial, most of the facts were agreed by the prosecution and the defence by way of admitted facts.[1] In addition, the prosecution called four witnesses to testify, namely, the then personal secretary of the applicant, Zhu Shuangli (“Zhu”), the then private secretary of the Chief Executive, Chan Ka-shun Carlson (“Chan’), the then personal assistant to the Commissioner of the Independent Commission Against Corruption (“ICAC”), Chung Wai-fun (“Chung”), and a Chief Investigator of the ICAC’s Operations Department, Au Kwan-lung (“Au”).  The testimonies of the above prosecution witnesses were not subject to much challenge.

5.  Basically, there was no dispute on the facts of the prosecution about the background in which the applicant sent the subject e-mails and letters to Chief Executive Leung (“Leung”) and Commissioner Peh (“Peh”), the way he sent the subject e-mails and letters to both of them via Zhu, as well as the handling of the subject e-mails and letters by Chan and Chung upon receipt of the same.  They could be summarized as follows:

B1.    ICAC Investigation

6.  At the material time, the applicant was the deputy chairman of Pearl Oriental Oil Limited (“Pearl Oriental”[2]), which was listed on the Main Board of the Stock Exchange of Hong Kong.  He was also a member of the National Committee of the Chinese People’s Political Consultative Conference (“CPPCC”).  The ICAC was conducting an investigation against Pearl Oriental and the applicant was suspected of having committed an offence under section 9 of the Prevention of Bribery Ordinance[3].  Au took part in the ICAC’s investigation against Pearl Oriental.

7.  On the morning of 8 January 2013, Au went to the applicant’s office at Pearl Oriental for investigation together with an ICAC investigator, Mok Siu-hin (“Mok”).   Au expressed to the applicant that he was suspected by the ICAC of having conspired with Wong Kwan, Cheung Kwok-yu, Jenny Li Jiong, Yik Siu-hung, Kitty Yip Sui-kuen and others, in an acquisition of oilfields by Pearl Oriental at Utah, the USA, to deceive the directors and shareholders of Pearl Oriental by furnishing forged documents, which might have involved the contravention of section 9(3) of the Prevention of Bribery Ordinance and section 159A of the Crimes Ordinance[4].  Au cautioned the applicant, who indicated that he understood.  Au then showed the applicant a search warrant.  He searched the applicant’s office in his presence and seized a document.  The search completed at 11:05 am on the same day.  Au invited the applicant to go to the ICAC Headquarters for investigation.  At 11:27 am, Au, Mok and the applicant reached the ICAC Headquarters.

8.  At 11:34 am on the same day, Mok served the applicant with a Notice to Persons under ICAC investigation for his reading.  The applicant indicated that he understood the contents of the Notice and signed on it.  Thereafter, Au conducted a cautioned video-recorded interview with the applicant in respect of the Pearl Oriental matters at Room 1117 of the ICAC Headquarters, which lasted for 117 minutes.  The applicant answered all the questions raised by Au and did not exercise his right to remain silent or to engage a lawyer.  Au agreed under cross-examination that the only allegation the applicant faced on that day was one of conspiracy to commit corruption.  At 6:46 pm on the same day, Au formally arrested the applicant, during which the applicant contacted his legal representative.  At 7:23 pm, Mok served the applicant with a Notice to Persons in Custody[5]. Having read the contents of the Notice, the applicant indicated that he understood and signed on it.  Sometime after 10 pm in the evening, the applicant went through the bail procedure.  At 11:22 pm, the applicant was given bail by the ICAC on the conditions that he pay HKD$50,000 in cash and report to the ICAC Headquarters at 11 am on 14 January 2013[6].

B2.    Sending the “First Letter”

9.  Zhu was then the secretary of the applicant.  Her duties included handling e-mails of the applicant and preparing letters for him.  She also had the e-mail password of the applicant.

10.  On 9 January 2013, the applicant instructed Zhu to have the two subject e-mails transmitted to Leung and Peh respectively (“First Letter (Leung)” and “First Letter (Peh)”, which are collectively named as the “First Letter”)[7]. The detailed course of their production and transmission was as follows:

(1)   Around 6 to 7 pm on 9 January 2013, the applicant instructed Zhu to prepare an e-mail to Leung based on his manuscript.  Having typed out the e-mail, Zhu gave it to the applicant for amendment.  When the applicant finished, Zhu had the e-mail transmitted to the e-mail address of the Chief Executive together with an attachment bearing the same contents.  The time of transmission was 7:27 pm; this was the First Letter (Leung).  Zhu then shredded the manuscript.  

(2)   Later, according to the applicant’s further instructions, Zhu amended the contents (the last paragraph and the signature at the end) of the First Letter (Leung).   She then had the amended e-mail transmitted to the e-mail address of the Commissioner of ICAC together with an attachment bearing the same contents.  The time was 7:39 pm; this was the First Letter (Peh)[8]. Under cross-examination, Zhu said the e-mail was transmitted to the general e-mail address of the ICAC that she found on the internet, not the personal e-mail address of the Commissioner[9].

11.  Chan was then the private secretary of the Chief Executive.  His duties included handling e-mails and letters of the Chief Executive.  E-mails transmitted to the e-mail address of the Chief Executive would be first handled by the executive officers of the Chief Executive Office.  Depending on their nature, only e-mails that required perusal by the Chief Executive would be referred to his senior private assistant for handling.  Chan would then take follow-up action in accordance with the need of the Chief Executive.  At 8:20 pm on 9 January 2013, Chan received the First Letter (Leung) together with the attachment forwarded by the executive officers via e-mail.  He forwarded the same to the Chief Executive at 8:35 pm on the same day with no changes made.

12.  Chung was then the personal assistant to the Commissioner of the ICAC.  Her duties included handling e-mails and letters sent to the Commissioner.  Any e-mails or letters sent to Peh, if received by the ICAC Headquarters, would be forwarded or given to her to be further forwarded or given to Peh.  At 8:53 am on 10 January 2013, Chung received the First letter (Peh) together with the attachment forwarded via e-mail by the executive officer(s) of the ICAC Headquarters.  She forwarded the e-mail to Peh at 9:20 am on the same day.

13.  The full text of the First Letter (Leung) and First Letter (Peh) could be seen at Annexes 1 and 2. Their contents are fundamentally the same, which could be summarized as follows:

(1)   the applicant was arrested for the Pearl Oriental case.  The ICAC’s allegation of conspiracy to commit corruption against the applicant was absurd.  It was suspected to be an attack, retaliation and political murder against the applicant;  

(2)   the applicant stated that “genuine gold does not fear fierce fire”, and he went on to explain in detail his relationship with Pearl Oriental, which included matters like his receiving no salary, his responsibility for financing and acquisitions and the agreement for his collection of remuneration upon success have been passed at an  extraordinary general meetings and such an arrangement being open and legal;

(3)   the applicant’s support of Leung and the difference in views between them;

(4)   the applicant was “arrested” by the ICAC for the “trumped-up” charge just two days after he had made a public criticism about the shortcomings of the policy of Leung, which was too “coincidental” in terms of timing.

14.  In the last two paragraphs of the First Letter (Leung), the applicant stated:

“ [omitted]… The Apple Daily also described me as the ‘Number One Valiant Patriot’. Now I am inexplicably and cruellyframed and ‘murdered’, the central authorities and the people who love the country and Hong Kong will definitely feel that ‘friends are saddened and enemies gladdened’! The situation is so serious that I hope CY will consider the issue from a political and macroscopic perspective, and urgently cease the unreasonable persecution against me in order to avoid causing a huge impact in society!

   If what the ICAC did to me was based on your instructions, or if you leave me in the lurch and just let me be falsely accused, please cast your mind back to the time during the Chief Executive election, how I made an all-out effort without any reservation… [omitted]… you called me and twice emphasized that ‘Mon-hung, you can put your mind at ease, I won’t kick down the ladder!’  I expect you to ‘keep your promise and act with determination’, have a word with Commissioner Peh and ask his subordinates to be doubly cautious, or else a political bomb will be detonated!”

In the last paragraph of the First Letter (Peh), the applicant stated:

“ [omitted]… The Apple Daily also described me as the ‘Number One Valiant Patriot’. Now I am inexplicably and cruelly framed and ‘murdered’, the central government and the people who love the country and Hong Kong will definitely feel that ‘friends are saddened and enemies gladdened’! The situation is so serious that I hope Commissioner Peh will consider the issue from a political and macroscopic perspective, and urgently cease the unreasonable persecution against me in order to avoid causing a huge impact in society, or else a political bomb will be detonated!”

B3.    Sending the “Second Letter”

15.  On 10 January 2013, the applicant instructed Chu to send out the other two subject letters, one to Leung and the other copied to Peh (“Second Letter (Leung)” and “Second Letter (Peh)”, collectively called the “Second Letter”)[10];. The details of how it happened were as follows:

(1)   On the afternoon of 10 January 2013, the applicant instructed Chu to prepare a letter to Leung.  Chu typed the letter according to the manuscript of the applicant.  After the applicant had amended its contents and passed it to Chu for correction, the applicant reconfirmed the contents of the letter.  This letter was printed with the word “(Confidential)” and bore the applicant’s signature.  Chu followed the applicant’s instructions and printed the words such as “For the Chief Executive’s eyes only” and “super-urgent” on the envelope[11]. Having sealed the letter, Chu arranged for a staff member to hand-deliver it to Leung at the Government Headquarters. This was the Second Letter (Leung).

(2)   The applicant also instructed Chu to send a duplicate of the Second Letter (Leung) to Peh.  Chu followed the instructions and printed another letter with the same contents but the words “(Duplicate of a Confidential Document)” were printed. The applicant did not sign this letter[12]; and this was the Second Letter (Peh).  Having sealed this letter, Chu arranged for a staff member to hand-deliver it to No. 303 Java Road for the personal attention of Peh.  However, Chu mistakenly printed on the envelope the words “For the personal attention of Commissioner Simon Peh Yun-lu (Remarks: For the Chief Executive’s eyes only)”[13].

16.  On 11 January 2013, Leung gave the Second Letter (Leung) to Chan.   Having read it, Chan found it necessary to deliberate with the Chief Executive’s Office and high-ranking officers on how to respond.

17.  Around 9:45 a.m. on 11 January 2013, Chung received a letter with the words “For the personal attention of Commissioner Simon Peh Yun-lu” printed on the envelope[14].  She directly handed the letter to Peh without opening the envelope.  The prosecution evidence did not clearly show whether Peh had read the Second Letter (Peh).

18.  The full text of the Second Letter (Leung) and the Second Letter (Peh) can be seen in Annex 3 and Annex 4.  They have the same contents, which can be summarized into the following points:

(1)   The applicant alleged that he, despite being a strong supporter of Leung, was criticized publicly on TV media, all because he “approved what was right and condemned what was wrong”.  He was harmed by a “trumped-up” charge at the sensitive moment when the central authorities were making the final decision on the short-list of candidates for the standing committee of the National Committee of the CPPCC.

(2)   The applicant solemnly declared:

“ If the ICAC does not stop the groundless accusation, which is tantamount to ‘looking for a bone in an egg’, against me, the other directors of Pearl Oriental Oil Limited and the people involved in this case, once it causes me damage politically, financially and also to my reputation, I will follow the teachings of Mao Zedong (‘If someone messes with me, I will mess with him’) and Lu Xun (‘An eye for an eye and a tooth for a tooth’) by immediately publishing the ‘Letter urging LEUNG Chun-ying to resign’, which contains a world-shaking inside story, to the Chinese and foreign media and the Central People’s Government and perishing together with the person who bites the hand that feeds him!

Please instantly take decisive measures to put an end to the persecution against the ‘Number One Valiant Patriot’ dubbed by the opponents!  Stop making the absurd accusation against me, Pearl Oriental, the other directors and the management! Promptly instruct the ICAC to cease the unreasonable investigation.”

(3)   The applicant alleged that he paid 30 million US Dollars to an independent third party out of the remuneration he obtained by acquiring oil fields for Pearl Oriental.  The applicant alleged that the arrangement was a normal business activity, and Pearl Oriental had also made a public announcement.

B4.   Response of Leung

19.  Subsequently, on Leung’s instructions, Chan signed and sent a letter (“Reply Letter”)[15] on 29 January 2013 in response to the First Letter (Leung) and the Second Letter (Leung) sent to the Chief Executive by the applicant.  In the Reply Letter, Chan explicitly expressed that the applicant’s request was grossly inappropriate, illegitimate and unacceptable.  Chan also emphasized that the ICAC, as a law enforcement agency, must act in accordance with the law without interference; and that the Chief Executive absolutely would not and should not interfere with the investigation and the law enforcement duties conducted by the ICAC in relation to any case.

20.  The applicant sent the Third Letter[16] to Leung and sent a duplicate to Peh on the same day.

21.  Chan pointed out that the Third Letter (Leung) had not yet been received when Leung passed the case on to the ICAC.  Upon receipt of the Third Letter (Leung) on 29 January 2013, the Personal Assistant to Leung converted the letter to a PDF file and forwarded it on the same day to Leung, who further forwarded it to the Office of the Chief Executive.  On that day, the Senior Personal Secretary to Leung also showed the original of the letter to Chan to see if follow-up action was necessary.  After deliberation between Leung and officers of the Chief Executive’s Office, it was decided that it was not necessary to respond to the letter for the time being.  Afterwards, the letter was kept in the Confidential Registry of the Chief Executive’s Office.  In fact, the other letters involved in this case, including the original of the Second Letter (Leung), were also kept in the Confidential Registry.  Chan confirmed that a duplicate of the Third Letter (Leung) was not given to the ICAC or the Department of Justice, nor were they informed of the existence of such letter because Chan was given to understand then that a duplicate of the letter had already been sent to the Commissioner of the ICAC. Chan indicated that he forgot if they had specifically discussed whether the letter should be given to the ICAC for investigation while discussing the follow-up matters.  In mid-October 2015, the ICAC first inquired of the Chief Executive’s Office about whether they had received that letter and where it was kept. Therefore, Chan confirmed the aforesaid situation by a reply memo on 23 October 2015.

22.  Apart from Leung and Chan, five or six people such as the Director, the Permanent Secretary and the executive officers of the Chief Executive’s Office were also aware of the existence of the First Letter (Leung) and all of the subsequent letters.

23.  However, Chung said that she had never seen the Third Letter (Peh), about which she only learnt from the newspaper later on.  She indicated that Peh would judge whether an incoming letter should be given to her to handle.  It could be given to other staff members to handle if it was rather sensitive.

B5.     The applicant’s arrest and prosecution

24.  On 31 January 2013, the ICAC first sought legal advice from the Department of Justice on whether or not to investigate into the allegation involved in this case pursuant to section 10 of the Independent Commission Against Corruption Ordinance[17]. The Department of Justice provided the relevant legal advice on 15 February 2013.

25.  On 20 February 2013, the applicant was formally arrested in relation to this case.  Under caution, he remained silent.

26.  On 20 August 2013, the applicant was charged with the offence in this case.  At the request of the applicant, his trial did not proceed until after the conclusion of the Pearl Oriental case.

B6.     The Pearl Oriental case

27.  Concerning the Pearl Oriental case, the applicant was charged with two counts of conspiracy to defraud on 7 October 2013.  The trial commenced in the High Court on 26 March 2015, when the applicant was charged with an additional offence of “Dealing with property [known or believed to represent proceeds] of an indictable offence”. The trial ended on 20 May 2015.  The jury unanimously found the applicant not guilty of all charges, whereas some of the co-defendants were found guilty of certain charges.

B7.     The prosecution stance

28.  The prosecution stance was that the applicant, in sending out the First Letter and the Second Letter, sought to influence Leung and/or Peh by threats or intimidation so as to make the ICAC terminate the investigation of him and/or other persons involved in the Pearl Oriental case.  By so doing the applicant perverted the course of justice, thereby committing the alleged offence.

C.    The Defence Case

29.  The applicant elected to give evidence but did not call any other witnesses.  His evidence can be summarized as follows:

C1.    His Background

30.  At the time of the trial, the applicant was 67 years old, married and had a son and two daughters.  He had no criminal record.  The applicant was born in the mainland and attained senior high school education there, and he sneaked into Hong Kong from the mainland in his twenties.

31.  Afterwards, the applicant entered the finance industry and took up the posts of chairman, deputy chairman and director in several listed companies.  He used to be a part-time member of the Central Policy Unit of the Hong Kong Special Administrative Region, and at the time he was the chairman of Smart Strategy Limited, which studied social issues.  He had published articles on current affairs and political analysis in special columns of the Oriental Daily and Wen Wei Po.  He had also expressed his views frequently on platforms such as television programmes, radio programmes and the City Forum. He had made donations to various social groups including the Baodiao Movement; the total amount was over four million Hong Kong dollars[18].

32.  During the trial, the applicant submitted 12 letters written by people from all social strata as evidence of his good character[19].

C2.     His relationship with Leung

33.  The applicant said that he became acquainted with Leung in September 1996.  In March 2010, Leung indicated his intention to run for the Chief Executive to the applicant and would like him to support him and to create and propagate public opinion in favour of him.  The applicant agreed and formally began to assist Leung in running for the Chief Executive in August 2011.

34.  On 4 March 2012, the then Vice President of China, Mr Xi Jinping, met with a number of CPPCC members including the applicant. After the meeting came to an end, Mr. Wang Guangya approached the applicant and said, “This is our ‘Big Pen Shaft’ who takes a clear-cut and firm stand”.  Subsequently, the applicant called Leung, informing him that it was tantamount to an approval by the Central Committee of the Communist Party and that “the die was cast”.

35.  In March 2012, Leung was formally elected as the Chief Executive.  On the afternoon of 28 May 2012, Leung, in his office, took the initiative to offer to the applicant that he would resign as a standing committee member of the National Committee of the CPPCC and would recommend the applicant as his one and only successor before assuming office as the Chief Executive.   On 20 July 2012, Leung said to the applicant over the phone, “Mon Hung, you can put your mind at ease, I won’t kick down the ladder.”

C3   Relationship with Leung turned sour

36.  In mid-August 2012, friction emerged between the applicant and Leung, arising from the applicant’s suggestion for Leung to welcome the return of participants of the Baodiao Movement at the airport or pier.  Leung refused to attend in person, nor did he send government officials on his behalf, for the reason that those participants of the said movement belonged to the pan-democratic camp. The applicant was angry and disapproved of this.  As a result, though the applicant had a friendly relationship with Leung as described hereinbefore, following the principle of “approving what was right and condemning what was wrong”, he wrote the article “Baodiao Movement is for All Political Camps” in his column in the Oriental Daily News,  “Pointing at the Rivers and Mountains” (“指點江山”), criticizing Leung of his way of handling the matter.

37.  Besides the Baodiao incident, for the months prior to his arrest on 8 January 2013, the applicant publicly criticized Leung on numerous occasions in respect of issues such as ‘national education’, ‘Hong Kong independence’, ‘conservation’ and ‘Leung’s cabinet’[20]. 

38.  On 6 November 2012. Mr. Hui Chi-ming, a friend of the applicant’s, told him that Leung had in August of the same year written a letter recommending that another CPPCC member, Peter Wong Kwok-keung, be appointed a standing committee member of the National Committee of the CPPCC.  Mr. Hui also showed to the applicant a copy of the letter. The applicant then met with Leung and confronted him. Eventually, Leung handed in a letter of recommendation to Peng Qinghua, Director of the Liaison Office of the Central People's Government, in favour of the applicant on 8 November 2012[21]. However, three weeks before the central authorities finalizing the list of standing committee members of the National Committee of the CPPCC[22], which was, on 8 January 2013, the applicant was arrested by the ICAC. Finally, the applicant was even stripped of his CPPCC National Committee membership.

39.  On 2 January 2013, a former chief editorial writer of Wen Wei Po, Mr. Au Hong-chong, called and informed the applicant that Leung, in reply to an invitation to a karaoke activity by member(s) of Smart Strategy, said, “Lew Mon-hung mercilessly criticized me, and he himself has a huge problem. With him there, I will not attend.” The applicant was puzzled and shocked by the irreconcilable attitude displayed by Leung and pondered upon what problem the applicant himself had.

40.  On 5 January 2013, Leung invited his supporters to the Government House as guests. The applicant expressed to reporter(s) of the Apple Daily News that Leung was calling upon his supporters, the so-called “Leung fans”（梁粉), to strike up a media warfare with people from the pan-democratic camp, which in his opinion was the reoccurrence of the method of “provoking the people against the people” used in the Cultural Revolution.  On the following day, the Apple Daily carried a headline about the applicant’s criticism of Leung[23]. At noon of the same day, the applicant received a phone call from Mr. Yuen Yiu-ching, former deputy editor-in-chief of the Hong Kong Economic Journal, who said, “Mon-hung, I got wind that CY doesn’t like your ripping him. (I) heard that he will set you up with some big trouble. Watch out.” However, the applicant continued to publicly criticize Leung on 6 and 7 January 2013, which was widely reported by the media.  That included Cable TV’s broadcasting of the criticism he made on 6 January 2013 at the City University during an open forum on the issue of ‘One Country Two Systems or One Country Rules All’.

C4.    Why sending the First Letter and the Second Letter

41.  The applicant explained that when he sent out the First Letter and the Second Letter, his belief was that as far as timing was concerned, his arrest by the ICAC for the “trumped-up” charge of conspiracy to commit corruption was coincidentally right after he had launched a series of public criticisms against Leung, and three weeks prior to the central government’s finalizing the list of standing committee members of the National Committee of the CPPCC. Therefore, the applicant strongly believed that he had been framed up, that it was Leung who had instructed and used the ICAC to carry out revenge, oppression and political persecution against him. Thus, in the first paragraph of the Second Letter, the applicant wrote:

“ With ‘the loyalty of Qu Yuan（屈原）and the bravery of Han Xin（韓信）’ (as per Chip Tsao), I supported you with a ‘clear-cut and firm stand’ (as per Wang Guangya) to run for the chief executive. Who could have thought that after you had ascended the throne of the chief executive, I was framed up by the ICAC with a trumped-up charge, merely because two days prior to that I had publicly made a few criticisms on you on the television in accordance with the principle of ‘approving what was right and condemning what was wrong’. And the timing was precisely chosen to be the sensitive moment when the central authorities were to finalize the list of standing committee members of the CPPCC National Committee. How vicious it is!”

The applicant therefore mentioned in the First Letter and the Second Letter that two days after he had publicly criticized Leung, he was arrested by the ICAC for a trumped-up charge. He suspected that the timing was too much of a coincidence.

42.  The applicant stressed that the first and third paragraphs of the First Letter and the Second Letter came about in the context of his being accused of ‘conspiracy to commit corruption’. In fact, in the subsequent trial in question, neither the applicant nor any of the co-defendants were charged with ‘conspiracy to commit corruption’[24]. Thus, the applicant opined that he was framed up in the whole incident.

43.  The applicant explained that on 8 January 2013, the ICAC invited him to assist in investigation. However, after the video interview, the ICAC arrested him for the offence of ‘conspiracy to commit corruption’. The applicant indicated that after he had been granted bail, he could not sleep at night, and he recalled that in March 2012, Regina IpLau Suk-yee said that “CY would plot against others”[25]. He thought that he had neither committed corruption nor sought personal gain, yet he was splashed with dirty water and framed up, which caused him huge damage politically, financially and also to his reputation. It was against this background that the applicant issued the First Letter and the Second Letter.

44.  As aforesaid, the applicant opined that Leung was the mastermind using the ICAC to carry out political oppression against him. Thus, he also sent the letter to Peh, who was the executor.  He had no knowledge of the organisation structure of the ICAC, nor did he know if Peh was involved in the investigation.

45.  The applicant stressed that the purpose of his writing to Leung and Peh (including the Third Letter) three times was to stop the opposite party’s illegal act of framing him and political persecution. He stressed that he only requested to have the unreasonable investigation halted, but not to have the investigation halted, as evidenced by his mentioning “groundless persecution” in the First Letter and “groundless accusation, which is tantamount to ‘looking for a bone in an egg’” and “unreasonable investigation” in the Second Letter.  In those letters, the words “groundless” and “unreasonable’ were where the emphasis lay. He had explained in the First Letter that he had not committed corruption, nor had he been paid a penny in salary.  Thus it was a great injustice to him to be accused of “conspiracy to commit corruption”.

C5.    Explanations of the contents of the First Letter and the Second Letter

46.  In relation to the contents of the letters, the applicant explained that the reason why, in the first paragraph of the First Letter, he wrote, “someone suspects that this is purely and simply a strike of vengeance and political murder against me!” was that he recalled the aforesaid words of Mr. Au Hong-chong and Mr. Yuen Yiu-ching, and he also recalled the media reports of the criticism he had made against Leung on 6 and 7 January 2013, and the fact that he was arrested during the time when the list of standing committee members of the National Committee of the CPPCC was to be finalized. In his view, Leung was to destroy the reputation and career that he had built up through 40 years’ hard work in an instant with a “trumped-up” charge of “conspiracy to commit corruption”, which was tantamount to “political murder”.

47.  Under cross-examination, the applicant agreed that he did not explicitly write in the First Letter and the Second Letter that he would cooperate in the investigation into the “accusation that was not groundless”, but he had written “genuine gold does not fear fierce fire”. The applicant said that thisexpression meant he was willing to be investigated but he would not subject himself to political persecution. That was in line with what he said in the Third Letter to Leung on 29 January, in which he mentioned the same wordings and “welcome lawful investigation”.  The applicant stressed that he did not interfere with or attempt to stop the ICAC’s investigation on him. Instead, he was very cooperative in the investigation and did not keep his silence, and he took part in a video interview with the ICAC that lasted for 117 minutes without the presence of a lawyer. The applicant stressed that in that interview, the only accusation he faced was the offence of “conspiracy to commit corruption”; yet, eventually the ICAC did not charge him with that offence. As for the offence of conspiracy (to defraud) that he was charged with, the jury eventually found him not guilty unanimously. The applicant said that he did not “conspire” or commit “corruption”, so he did not need others to cover up for him, nor did he have the intention to pervert the course of public justice.

48.  In relation to his requesting Leung to “have a word with” Peh and asking them to be “doubly cautious” in the First Letter (Leung), the applicant indicated that cooking up charges without evidence to frame him up was incautious and in violation of Hong Kong’s rule of law.  As regards the phrase “a political bomb will be detonated”, the applicant explained that the expression, “detonating a political bomb”, had been used by various major newspapers and was political jargon[26]. He pointed out that any event that would spark huge concern by the media and attention of the general public could cause “detonation of a political bomb”.

49.  The applicant said that he requested the ICAC in the letters to stop its investigation into other people as well because the ICAC’s accusation was “conspiracy to commit corruption”, which meant he had “conspired” with others. However, he did not conspire to commit corruption with others, and he never even had contact with some of the accused. Thus, the accusation was absurd, unreasonable and unlawful. The applicant was convinced that it was an unlawful political persecution targeted at him, which resulted in the implication of the other people involved in the case.

50.  The applicant explained the meaning of some excerpts from the First Letter and the Second Letter as follows:

Excerpts from the First Letter	Meaning
“hope CY will consider the issue from a political and macroscopic perspective”-	The applicant thought it was all a political persecution.
“avoid causing a huge impact in society”[27] -	The fact that Leung framed him, the number one supporter of his, just because the applicant had repeatedly criticized him would cause concern and huge shock to the media and society, including a governance crisis.
“if what the ICAC did to me what based on your instructions” -	The accusation of him ‘committing corruption’ was baffling, which he thought was laid on the orders of Leung.
“or you leave me in the lurch” -	He only wanted to leave some leeway in his speech so that Leung would have a graceful way to back out.
“will not kick down the ladder” -	He hoped that Leung would not bite the hand that fed him.
“or else a political bomb will be detonated”	It was not his intention to detonate (a bomb) or make a threat or apply pressure: he wanted to remind Leung that he had to be held accountable to the central authorities and the Hong Kong people: if there was a “frame-up” and political persecution, it would arouse public concern and discussions in society.
Excerpts from the Second Letter	Meaning
“world-shaking inside story”	By that time the general public did not know that the applicant was arrested: he claimed that he was framed and the accusation was not supported by evidence. If the incident was revealed, it would be world-shaking.
“the person who bites the hand that feeds him”	Referring to Leung.
“perishing together”	If Leung was to step down, then the applicant, as his number one supporter who had backed him up for the candidacy, would also have to bear the blame politically and as far as his reputation was concerned.
“Letter Urging Leung Chun-ying to Resign”	That “Letter for Resignation” did not exist then. The applicant had not yet an idea or a draft at that time. The applicant was not making a threat, but exhorting Leung not to break the law.

51.  The applicant explained that he signed his name at the end of the First Letter (Peh) as “Student of the Respected Xu (Simin)（徐四民）” because he had been inspired by the latter’s spirit of “approving what was right and condemning what was wrong”.

C6.   The “Third Letter”

52.  On 29 January 2013, the applicant sent the “Third Letter (Leung)” to Leung and a copy of the letter was sent to Peh. Zhu confirmed that the applicant instructed her to address a letter to Leung (“Third Letter (Leung)”) and copy to Peh (“Third Letter (Peh)”) on that day. Zhu typed out the letter, which was then amended by the applicant, before arranging for it to be delivered to the Chief Executive’s Office and copied to the ICAC Commissioner.

53.  The contents of the Third Letter can be summarized as follows:

(i)   The applicant alleged that Leung only “acknowledged receipt of” his First Letter and Second Letter on 29 January 2013, but their contents, purportedly disclosed by “sources in the Executive Council”, had already been reported out of context by the media much earlier;

(ii)   The applicant questioned whether the disclosure of the contents of the letters was done by Mr Barry Cheung Chun-yuen, a member of the Executive Council, on the instruction of Leung and stated that such act was in violation of the system of confidentiality of the Executive Council;

(iii)   The applicant complained that in disclosing the contents of the letters, Mr Barry Cheung Chun-yuen avoided the subject of him being the victim of political murder/retaliation/unreasonable persecution as mentioned in the two letters:

“ (omitted) …Why did Barry Cheung Chun-yuen have to avoid the subject and premise [of political murder] in ‘releasing the information’? I welcome the ICAC’s investigation in accordance with the law since ‘genuine gold does not fear fierce fire’, but political persecution is absolutely unacceptable. This response is perfectly normal!”

(iv)   The applicant complained that his arrest by the ICAC was disclosed to the media, which he described was an act of intentional law-breaking.

54.  The applicant explained that the first paragraph of this letter meant that everyone should be law-abiding and should not disclose the ICAC’s investigation. He stated, however, that the main point of the letter was in the third paragraph, in which he not only reminded Leung not to break the law, but also indicated that he “welcomed the ICAC’s investigation in accordance with the law”. The applicant explained that though it was only in this letter that he first wrote like this, he had previously requested to halt all unreasonable investigations, meaning that he would accept and cooperate in any investigation otherwise.

C7.   The defence stance

55.  The applicant admitted that he had sent the First Letter and the Second Letter to Leung and Peh, but denied any intent to pervert the course of justice. Based on the various underlying reasons and objective facts mentioned above, the applicant firmly believed that the ICAC’s investigation against him for “conspiracy to commit corruption” in the Pearl Oriental case was not supported by evidence. The applicant claimed that he was politically persecuted and that Leung was the culprit. In sending the First Letter and the Second Letter to Leung and Peh, the applicant merely wanted the two to stop any further unreasonable investigations against him, thus he had no intention whatsoever of perverting the course of justice. He also stated that neither Leung nor Peh had the power to halt the ICAC’s investigation, thus the actions of the applicant had no tendency to pervert the course of justice.

D.   The rulings of the trial judge

D1.   Ruling on matters of disclosure

56.  The defence considered the Third Letter useful in understanding the intention of the applicant, but neither Leung nor Peh disclosed it, which suggested the possibility of them conspiring to deliberately conceal such a material letter. For this reason, the defence requested the trial judge to make a ruling on whether the following three issues were “disclosable”:

(1)   Why Peh failed to disclose the existence of the Third Letter and provide a copy to the ICAC investigating officers in the 10.5 months following its receipt;

(2)   Whether Leung had personally handled the original of that letter at any stage; and

(3)   Which officer of the ICAC decided that there was no need for the investigating officers concerned to ask Leung for the Third Letter or its copy for investigation purpose and the time such decision was made.

57.  The prosecution submitted that the Third Letter was only written after the applicant received the Reply Letter from Chan, which suggested that the applicant had already known that Leung would not agree to interfere in the investigation at his request. Therefore, even if the Third Letter contained exculpatory expressions, the purpose behind sending the letter was highly suspicious, and they carried minimal weight in determining the purpose and intention of the applicant. Moreover, since the prosecution did not rely on the evidence of the Third Letter and neither Leung nor Peh was called as a prosecution witness, the credibility of the prosecution evidence was not affected by the way they handled the letter, nor did it have anything to do with the purpose and intention of the applicant at the material time.

58.  The trial judge was of the view that the Third Letter having already been disclosed prior to the trial, the applicant suffered no prejudice and he ruled that the prosecution had discharged its duty of disclosure. He said,

“18. Undoubtedly, the defence’s allegation of conspiracy between the Chief Executive and the ICAC Commissioner defies common sense – if the letter was sent by the defendant, he must have known about its existence. How can he assert that others would conceal this letter? Besides, now that the letter has been disclosed prior to the trial, I do not see how this would cause any unfairness to the defendant. I am satisfied that the prosecution has discharged its duty of disclosure.”

D2.   Ruling on the charge

59.  The trial judge cited a Court of Final Appeal case HKSAR v Wong Chi Wai [2013] 16 HKCFAR 539 and a Court of Appeal case HKSAR v Wong Shing Yim Peter And Others [2003] 3 HKLRD 1046 to illustrate the relevant elements of the offence of perverting the course of justice. The trial judge then pointed out the issue of this case was whether the conduct of the applicant had a tendency to pervert the course of justice and whether he had intentionally perverted the course of justice[28], which had nothing to do with whether or not the applicant was subsequently convicted in the curial proceedings in question. The trial judge said,

“80. With regard to his intent, the prosecution must prove that the defendant knew that his conduct had the tendency to pervert the course of justice of the curial proceedings in question or that he intended it to have such tendency: HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539 para 32. It has nothing to do with whether or not the defendant is subsequently acquitted in the curial proceedings in question: R v Lee Chi Wai [1988] 2 HKLR 595, 598.

…

82.   The issue of this case was whether the conduct of the defendant had a tendency to pervert the course of justice and whether he had intentionally perverted the course of justice. In determining whether the said conduct had such tendency, the court needs to consider the defendant’s purpose for doing so and the means he used, and both the purpose and means must be lawful: Wong Chi Wai para 33[29].”

60.  The trial judge summarized the submissions of the parties on whether the applicant had the intention that could cause the tendency to pervert the course of justice and made the following rulings.

D2.1  The issue of whether Leung and Peh had the power to halt the investigation

61.  The trial judge referred to the defence’s citation of HKSAR v Tsui King Sing [2008] 3 HKLRD 213 and its submission that the prosecution did not put forward any evidence that Leung or Peh, under the relevant mechanism, had the power to terminate any ICAC investigation that had already commenced:

“83. First of all, Mr Tse SC cited the case of HKSAR v Tsui King Sing [2008] 3 HKLRD 213…

84. …pointed out that the charge alleged that the defendant ‘sought… to influence Mr Leung and/or Mr Peh to terminate an investigation being carried out by the Independent Commission Against Corruption against him and/or others.’ The investigation in question concerned the Pearl Oriental case, but the prosecution did not call Mr Leung nor Mr Peh to prove that both or either of them could indeed have halted the investigation of the Pearl Oriental case.

85.   Simply put, the defence submitted that the prosecution did not put forward any evidence that Leung or Peh, under the relevant mechanism, had the power to terminate any ICAC investigation that had already commenced. Regardless of certain powers the law may have conferred on them, as far as the mechanism and logic are concerned, the Chief Executive or the ICAC Commissioner of Hong Kong will never be allowed to arbitrarily stop at any time any investigation by the ICAC.”

62.  Moreover, the defence quoted what Rimsky Yuen Kwok-keung SC, the then Secretary for Justice, said at the Legislative Council (“LegCo”) on 16 October 2013[30] as well as the ICAC Annual Report 2013[31], averring that the investigation of a case could only be concluded with the endorsement of the Operations Review Committee (“Review Committee”). It is not a decision to be made by the ICAC Commissioner or the ICAC. The defence also submitted that the words on the envelope of the Second Letter (Peh)” (For the eyes of the Chief Executive only) showed that Peh was not allowed to open and read that letter.

63.  The prosecution responded that under Article 48 of the Basic Law, the Chief Executive was responsible for the implementation of all laws which apply in Hong Kong, while the Independent Commission Against Corruption Ordinance provided that the ICAC Commissioner shall be subject to the control of the Chief Executive, and his/her duties shall include the investigation, on behalf of the Chief Executive, of any alleged or suspected offence/conspiracy to commit an offence under the Prevention of Bribery Ordinance . The ICAC Commissioner can appoint ICAC officers and authorize them to effect arrest, search, seizure of exhibits, enquiries and examination; make orders in relation to their duties and, as the head of a law enforcement agency, has the operational discretion, including the deployment of the resources of the ICAC and termination of an ongoing investigation. The prosecution also cited Bribery and Corruption Law in Hong Kong to establish that the ICAC Commissioner had the power to decide to discontinue an investigation having taken various factors into consideration.

64.  The trial judge did not accept the defence’s assertion that the Chief Executive and/or the ICAC Commissioner had no power to halt an investigation, and he pointed out that whether or not Peh had read the Second Letter (Peh) was immaterial. He said,

“93. …Undoubtedly, given that the law empowers the Chief Executive to implement the law and the ICAC Commissioner to conduct investigations into corruption activities on behalf of the Chief Executive, it is hard to imagine why they would not have the corresponding power to halt the investigation. It does not mean that the Chief Executive and/or the ICAC Commissioner can interfere wilfully or arbitrarily, but rather they indeed have the constitutional power to do so. …

94. … According to defence exhibit D7 (“Reports of ICAC Advisory Committees”, Appendix of the ICAC Annual Report 2013) … the terms of reference of the Review Committee show that its main duties include receiving reports from the ICAC Commissioner, giving advice to the ICAC Commissioner and submitting annual reports to the Chief Executive. This Committee is not a law enforcement agency that has any power in law to authorize ICAC officers to conduct or terminate any investigation. The Committee gives advice to the ICAC Commissioner, but whether or not to continue an investigation is, as a matter of law, left to the absolute and personal discretion of the ICAC Commissioner.

95.   As to the defence’s claim that there is no evidence to suggest that Commissioner Peh did actually read the letter or was influenced by it, the letter was in fact delivered to him and it is immaterial whether or not he read it or was indeed influenced by it, especially when there were other e-mails and letters delivered to the Chief Executive and Commissioner Peh in the case.”

D2.2  The issue on “purpose” and “means”

65.  In paragraph 82 of his Reasons for Verdict, the trial judge, citing paragraph 33 of the judgment of Wong Chi Wai, stated that in determining whether the conduct of the applicant had a tendency to pervert the course of justice and whether he had intentionally perverted the course of justice, the court had to consider the applicant’s purpose for doing so and the means he used at the time. The trial judge emphasized that both the purpose and the means used by the applicant must be lawful.

66.  With regard to the applicant’s purpose, the defence pointed out that the contents of the First Letter were clearly directed against the allegation of “conspiracy to commit corruption”, and Au’s testimony also confirmed that it was the sole allegation at that time. Judging from the context of the letter, it can be seen that the applicant concluded that this was not an ordinary investigation and that he only wanted to stop a “frame-up” case, thus it was not an act to pervert the course of justice.

67.  The trial judge was of the view that the purpose of the applicant was unlawful, otherwise he would not have had to mention his campaigning efforts for Leung or use words such as “have a word with” and “perish together”. He said,

“100. However, if the purpose of the defendant was merely to prevent the abuse of justice or to remind others not to break the law and trump up charges, why did he need to mention how dedicated he was in campaigning and resolving crises for him in the last paragraph, much less express his wish for the Chief Executive to have a word with Commissioner Peh? Or made explicit in another letter to the Chief Executive to take ‘an eye for an eye, a tooth for a tooth’ and perish together with the person who bites the hand that feeds him if the unreasonable accusations against him and Pearl Oriental did not stop? Undoubtedly, the defendant sent out the e-mails and letters in the hope that the Chief Executive and/or Commissioner Peh could intervene in the relevant investigation and his purpose was clearly unlawful.”

68.  With regard to the means used by the applicant, the defence submitted that no threatening words appeared in the First Letter and reiterated the explanation given by the applicant in his evidence for the wordings used in the two letters[32]. In this regard, the trial judge was of the view that words such as “publishing shocking inside stories” and “perish together with the person who bites the hand that feeds him” as mentioned in the letters of the applicant showed that he had adopted unlawful means of threat and intimidation. He said,

“103. However, if it is said that all the aforementioned wordings merely referred to the political repercussions triggered by the defendant being ‘framed up’, why did he say in the letter that he will immediately publish ‘the Letter Urging Leung Chun-ying to resign’ which contains a world-shaking inside story to the Chinese and foreign media as well as the Central Government if the groundless accusations did not stop, and that he will perish together with the person who bites the hand that feeds him? It is clear that the defendant was trying to achieve his aim of having the Chief Executive and/or Commissioner Peh stop the relevant investigation by means of threat or intimidation, and his means was indubitably unlawful[33].”

69.  The trial judge found that the First Letter and the Second Letter sent by the applicant unquestionably had a tendency to pervert the course of justice[34].

D2.3  The Applicant’s Intention

70.  The defence stressed that the Court must take into account the particular point in time and the background in question when considering the applicant’s intention.  For instance, that the applicant sent the First Letter in the form of e-mail instead of letter showed he was in a state of hurry, a state which squarely supported his explanation of feeling wronged.  As to the wording of the applicant’s letters, the Court should, so the defence urged, interpret it in light of his special personal background, personality, nature and political mindset etc., which included his love-hate relationship with Leung.  It was pointed out that the prosecution lacked the testimony from Leung to rebut the allegations the applicant had made against him in the letters.  The defence reiterated the applicant’s evidence, and remarked that during the video-recorded interview, the applicant came to realize the ICAC had already investigated into the Pearl Oriental case for at least several weeks, yet they still made baseless accusations against him of having conspired to commit corruption.  It was submitted that the applicant had ample reasons to believe he was being set up.  The defence emphasized that the applicant did not intend to have Leung return the favour owed to him, nor did he think Leung had overriding power; he did not mean to interfere with witnesses or attempt to end the investigation by virtue of any of Leung’s authority.  The Third Letter, so the defence argued, proved that the applicant welcomed any investigation by the ICAC conducted in accordance with the law.

71.  The prosecution submitted, on the other hand, that the ICAC did not do anything unreasonable or inappropriate throughout their investigation into the acquisition of the oilfields by Pearl Oriental.  In addition, the applicant was not clear about the background of the other persons involved in the case or the roles they played and their acts in the transaction.  Therefore, it could be deemed that they were dragged into trouble by the applicant.  While the applicant highlighted that he was found not guilty in that case, the prosecution pointed out that it was a verdict returned after the fact, and some other defendants were in fact found guilty.  Hence, it was submitted what the applicant meant by stopping the “unreasonable, unlawful” investigation in the First Letter and the Second Letter was actually an attempt to seek the termination of the entire investigation into him and the Pearl Oriental incident.  It was also submitted that the applicant, given his sophistication, ought to have known of the existence of an independent judicial system in Hong Kong, which made it utterly impossible for the Chief Executive to “frame him up” at his own will.  Further, the prosecution argued that even if the applicant genuinely believed the investigation conducted by the ICAC was unreasonable, the fact that he mentioned his importance on the political stage, the assistance he had given Leung, as well as Leung’s promise of “not kicking down the ladder”, and that he went on to request Leung to “have a word with” Peh and “ask his subordinates to be doubly cautious”, clearly showed that he intended to interfere with the investigative work of the ICAC by illegal and inappropriate means.

72.  The trial judge was of the view that the applicant’s intention as shown in the contents of the First Letter and the Second Letter contradicted what the defence argued[35].  The trial judge rejected the applicant’s evidence[36] and found that the applicant obviously knew these letters had the tendency to pervert the course of public justice; yet, by claiming to have past dealings and ties with the Chief Executive, as well as by means of threats or intimidation, he sought to influence Leung and/or Peh into terminating the investigation being carried out by the ICAC against him and/ or other persons[37].  The analysis of the trial judge was as follows:

“119. Nevertheless, as pointed out by the prosecution, when the defendant was giving evidence, he repeated incessantly that the purpose of him sending those e-mails and letters was to stop the ‘unreasonable, unlawful’ investigation, and he even expressed the willingness to be put under lawful investigation by the ICAC. However, the investigation he was referring to was in fact the entire investigation conducted by ICAC officers at that time as regards the acquisition of oilfields by Pearl Oriental; and there was no such distinction as reasonable or unreasonable about such an investigation…

123. Obviously, perhaps quite a lot of people who are arrested or charged may also think, for one reason or another, that they themselves are innocent or wronged, but that does not mean he is entitled to halt or stop the law enforcement agencies from investigating, let alone deter them by using threatening language. The defendant emphasized he was ‘genuine gold (that) does not fear fierce fire’, so wouldn’t an unhindered investigation be more likely to prove his innocence? The manifestation of justice encompasses investigation and law enforcement agencies, in that the latter can conduct investigation in every aspect and initiate prosecution against whoever that may be, by virtue of the power vested in them by the law. Even if someone is of the firm view that he is subjected to unreasonable investigation or prosecution, that person can raise a defence according to the stipulations of the law and have the case handled in judicial proceedings, instead of demanding the other party to stop immediately in a threatening manner.

124.    The defendant sought to have the Chief Executive and/ or the ICAC Commissioner stop the investigation against him and other persons immediately through e-mails and letters in threatening language, which surely and undoubtedly were acts tending to pervert the course of public justice.  The defendant emphasized that he actually welcomed any investigation conducted in accordance with the law, as he specified in the letter sent on 29 January (D1); nonetheless, this letter was only sent about three weeks later, by which time the media had even made some disclosure already.  If the defendant truly welcomed any investigation conducted in accordance with the law, there utterly was no need to send the previous e-mails and letters.  If the defendant merely intended those to serve as a reminder or to prevent the other party from breaking the law, he did not have to use any threatening phrases at all, given his writing skills; he actually could have clearly and specifically spelt out the details of how the other party broke the law, or made a report to other law enforcement agencies, etc and on top of that, saved himself from giving so many unusual and incredible explanations in court as to the contents and wording of the letters, such as saying the ‘world-shaking inside story’ meant he was arrested without evidence, or claiming that he himself had the responsibility to remind Commissioner Peh not to be used and so on.  I reject the defendant’s evidence.”     

73.  Therefore, the trial judge held that:

“125. Without a doubt, in sending these e-mails and letters, the defendant obviously knew they had the tendency to pervert the course of public justice and he did intend to effect such tendency, through claiming to have past dealings and ties with the Chief Executive, in order to seek to influence CE Leung and/ or Commissioner Peh into terminating the investigation being carried out by the ICAC against him and/ or other persons by means of threats or intimidation.”

E.   The Grounds of Appeal

74.  The applicant raises six grounds of appeal:

(I)    The prosecution did not fulfil their duty to disclose information;

(II)   The trial judge wrongly ruled that the prosecution had fulfilled their duty to disclose information;

(III)   The trial judge wrongly held that the prosecution had proven the applicant’s acts did have a tendency to pervert the course of public justice;

(IV)   The trial judge wrongly adopted and comprehended the legal principles stated by the Court of Final Appeal in Wong Chi Wai in dealing with the present case;

(V)   The Reasons for Verdict given by the trial judge lacked an appropriate, adequate and correct analysis and handling of the law and the evidence in multiple aspects, resulting in an unfair trial, and these failures included:

(1)   The ruling by the trial judge regarding the prosecution’s disclosure of information was wrong and the reasons therefor were inadequate;

(2)   In making the finding as regards the Operations Review Committee, the trial judge did not give reasons on how to approach the relevant defence exhibits;

(3)   In the analysis of the evidence in relation to the “purpose”, the trial judge wrongly held that the applicant’s acts were “unlawful”;

(4)   When analyzing the evidence concerning the “means”, the trial judge incorrectly regarded “unlawful” as “illegal” and dealt with the evidence as such;

(5)   The trial judge erred in citing the Lee Chi Wai case and thus erred in holding that the applicant’s acquittal in other legal proceedings bore no relevance to the case;

(6)   In the analysis of the tendency of the applicant’s acts, the trial judge mistakenly believed the defence was complaining that the prosecution had not called Leung or Peh as witnesses; 

(7)   The trial judge did not fully address the applicant’s submission on the impossibility of the acts of sending and delivering letters to Peh having the tendency of perverting the course of public justice;

(8)   When analyzing the acts and intention of the applicant, the trial judge relied solely on a plain reading of the First Letter and the Second Letter, completely neglecting to take into account the background and causes of the incident.  He also erred in holding that there was no such distinction as “reasonable or unreasonable” in criminal investigations;

(9)   In the analysis of the contents of the First Letter and the Second Letter, the trial judge inappropriately and selectively highlighted only the sentences that were unfavourable to the applicant, overlooking exculpatory sentences that were favourable to him; and

(10)   The trial judge failed to address various major points raised by the defence in the closing submission as well as the written reply to the prosecution’s closing submission.

(VI)   Therefore, the applicant is of the view that the conviction against him is unsafe and unsatisfactory.

75.   Quite a number of points raised under Ground (V) are repetitive of the other grounds of appeal:

Paragraphs under Ground (V)	Repetitive of Grounds
Paragraph (1)	I and II
Paragraph (2)	III
Paragraph (3)	III and IV
Paragraph (4)	III and IV
Paragraph (6)	III
Paragraph (7)	III
Paragraph (8)	IV

Paragraph (V)(5) relates to the actus reus of the offence of “Attempting to pervert the course of public justice”, whereas paragraphs (V)(8) and (9) pertain to the actus reus and mens rea of the offence of “Attempting to pervert the course of public justice”.

76.   We shall discuss the applicant’s grounds of appeal one by one as follows.

F.    Grounds of Appeal (I) and (II) – Duty of Disclosure

77.   Both Grounds (I) and (II) relate to the prosecution’s duty of disclosure, which can be dealt with together.

78.   Mr. Joseph Tse SC, on behalf of the applicant, reiterates that the defence made an application to the trial judge during trial for a ruling on whether the relevant information was “disclosable”, and not for an order to compel the prosecution to disclose the information.  Mr. Tse SC points out that the significance of the information lies in supporting the applicant’s belief, i.e. he believed his arrest and the investigation into him originated from Leung’s political persecution against him.  It is submitted that the trial judge’s reasons for dismissing the application shall not be factors to be taken into account when ruling on the “disclosability” of the information, because whether the information is “disclosable” depends on whether it is “possibly relevant to an issue in the case”[38]. In the opinion of Mr. Tse SC, the Court shall adopt a broad interpretation test[39] when making such a ruling, and the Court has no discretion in this matter[40].  How the defence is to use the information, the prospect of success of the line of defence after making use of the information and whether the non-disclosure of the information is unfair to the defence etc. are all factors that should not be considered.  The applicant already stressed during trial, as Mr. Tse SC stated, that the trial judge should first rule on the matter of “disclosability” before the issue of whether the trial was unfair would come about, at which stage it should be for the defence to make an application for “stay of proceedings”, and only then should the Court rule on the issue of whether the trial was unfair.

79.   Ms. Anna Lai SC, on behalf of the respondent, points out that the Third Letter was sent to Leung by the applicant personally and a copy was delivered to Peh by hand urgently.  He also kept a copy of the letter before sending it.  Having sent the First Letter and the Second Letter, the applicant only sent the Third Letter about three weeks later, the purpose of which, in Ms. Lai SC’s opinion, was extremely suspicious, and in fact, the harder he had it concealed the more it was revealed, keeping in mind the background against which the Third Letter was sent.  Even if the letter contains exculpatory phrases, hardly any weight should be attached.

80.   Ms. Lai SC also remarks that the applicant knew the ins and outs, the whys and wherefores of the sending of that letter like the back of his hand.  He had all along kept a copy of the letter himself, and disclosed, unprompted, the existence of the Third Letter when his application for permanent stay of proceedings of the present case was being heard in District Court in November 2013; yet he accused the prosecution of willful non-disclosure.  Ms. Lai SC highlights the fact that the prosecution had already informed the Court in the course of that application for permanent stay of proceedings about how the copy of the Third Letter came to be found in the ICAC Commissioner’s office in the evening on 15 November 2013.  During the trial, Chan also stated that the original of the Third Letter was filed in the Confidential Registry of the Office of the Chief Executive.  Ms. Lai SC strongly contends that, viewing in chronological order how the incident panned out, the applicant’s allegation against Leung, Peh or the prosecution of deliberately concealing the Third Letter, and what is more, his accusation of the two of them conspiring to pervert the course of public justice, are utterly unfounded and do not hold water.

81.   Ms. Lai SC stresses that the prosecution did not rely on the Third Letter, because the way Peh and Leung handled the Third Letter upon receipt was absolutely irrelevant to the purpose and intent of the applicant at the time of sending the e-mails and letters in question, nor would it affect the credibility of any of the prosecution witnesses’ testimonies.  The applicant having mentioned the Third Letter unprompted, naturally the trial judge ought to place the contents of the letter as well as the context in which the applicant sent the letter under scrutiny, in order to make a finding as to whether the contents of the letter was exculpatory; and if so, how much weight should be given.  Ms. Lai SC is of the view that the trial judge did not err in making the relevant findings.

82.   In response to the submission of Mr. Tse SC that the trial judge, from beginning to end, did not make a ruling on the “disclosability” of the information concerned, Ms. Lai SC points out that since the trial judge held that the prosecution had no further duty of disclosure (the information bore no relevance to this case) and the non-disclosure of such would not bring about any unfairness to the defence, the trial judge, in effect, already held that the information in question was not “disclosable”.  Ms. Lai SC opines that the ruling made by the trial judge did not go against the principles and threshold of the prosecution’s duty of disclosure as stated in paragraph 168 of Lee Ming Tee.

83.   Mr. Tse SC submits in reply that the respondent is merely repeating their points already taken at trial, i.e. that the prosecution did not rely on the letter, and accordingly this was the justification for not disclosing that letter to the applicant.  Mr. Tse SC opines that the respondent’s stance is untenable, for the reason that whether the prosecution relied on the materials in question in their case has nothing to do with whether they should be disclosed, see HKSAR v Ip Tsz Yau, CACC 199/2015, paragraph 28.

84.   It is not in dispute that at trial the defence was, in fact, simply asking for a ruling as to whether the relevant materials were “of a disclosable nature”. The trial judge nevertheless only ruled that the prosecution had discharged its duty of disclosure. This Court is of the view that the trial judge’s approach to the issue, while inadequate, did not constitute any unfairness or material irregularity, nor did it make the applicant’s conviction unsafe or unsatisfactory.

(1)   The Court of Final Appeal expounded in Lee Ming Tee the legal principles governing the prosecution’s duty of disclosure. Put simply, non-disclosure to the defence of relevant materials, even if not attributable to any breach by the prosecutor of his duty to disclose, can result in material irregularity and an unsafe conviction. The prosecution’s duty of disclosure has its foundation in the right of the defendant to a fair trial (which entails the defendant being entitled to having adequate knowledge of the prosecution case) and the general principle of open justice. It is incumbent upon the prosecution to disclose all relevant materials which may undermine the prosecution case or advance the defence case. Disclosable materials refer to materials that could be seen on a sensible appraisal by the prosecution: (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposed to use; (c) to hold out a real prospect of providing a lead on evidence which goes to (a) and (b). The duty here extends to materials relevant to the credibility of a prosecution witness. Further, the said duty is not limited to the disclosure of admissible evidence, and material which is not admissible may be relevant and useful for cross-examination of a prosecution witness on credit. It is for the Court, not the prosecuting counsel, to decide whether the relevant materials are to be disclosed.

(2)   The defence’s application was made on the basis that the Chief Executive and the Commissioner might have conspired in the deliberate cover-up of the Third Letter, and that the three relevant issues could lend support to the applicant’s case, that is, he believed the arrest and investigation of him were motivated by political persecution from the Chief Executive. This claim however was rejected by the trial judge, and no grounds have been put forward by the applicant to disturb these findings of facts. Put another way, as per the findings of facts of the trial judge, the basis of the defence’s application has not been made out, and the conditions of disclosure as set out in Lee Ming Tee have not been met.  It follows therefore that the three issues are obviously not materials disclosable by the prosecution.

(3)   Despite the fact that the trial judge did not expressly rule that the three issues were not disclosable by the prosecution, he did rule that the prosecution had discharged its duty of disclosure. The ruling of the trial judge in effect rejected the defence’s submission that the three issues should have been disclosed by the prosecution. The ruling of the trial judge is correct.

85.   For the foregoing reasons, this Court holds that the first and second grounds of appeal are unsubstantiated.

G.   Legal principles concerning the offence of “attempting to pervert the course of justice”

86.   The third and the fourth grounds of appeal concern the elements of the offence of “attempting to pervert the course of justice”. For the sake of convenience, we shall, before setting out to discuss these grounds of appeal, reiterate the applicable legal principles governing the offence.

87.   “Attempting to pervert the course of justice” is a long-standing[41] common law offence, the jurisprudence and legal principles of which have been thoroughly examined and canvassed in a number of overseas and local authorities, among them R v Rogerson [1991-1992] 174 CLR 268 (High Court of Australia), Wong Shing Yim, HKSAR v Egan (2010) 13 HKCFAR 314 and Wong Chi Wai. In dealing with the issues in the current appeal, this Court is of the view that it would suffice to cite the legal principles set out in three of these cases.

G1.   General definition

88.   From the authorities, the offence of “attempting to pervert the course of justice” is not restricted to the courts of law. It can equally apply to tribunals. In the present case, the prosecution alleged the actus reus of the applicant concerned the criminal investigation of the ICAC and was therefore confined to the criminal jurisdiction of the court. That being the case, the discussions below shall only centre on obstructing the court in its administration of justice.

89.   Generally speaking, “an attempt to pervert the course of justice” is the doing of some act which has a tendency and is intended to pervert the administration of public justice by the court: Egan, paragraph 122; Wong Chi Wai, paragraph 30; Rogerson, pages 276 and 279.

90.   “Attempting to pervert the course of justice”, though having in it the word “attempt”, is a substantive offence. Similar to other inchoate offences, such as “attempting to commit an offence”, it is not necessary for the alleged conduct of perverting the course of justice involved to have a real effect before the accused can be found guilty of the offence. Even if the conduct of the accused has not in fact perverted the course of justice, so long as it is established that his conduct has the tendency of perverting the course of justice and he intends to pervert the course of justice, he will have committed the offence of “attempting to pervert the course of justice” and be convicted of the offence: Egan, paragraph 123; Wong Chi Wai, paragraph 31(a); Rogerson, pages 279 and 297.

91.   Like all criminal offences, “attempting to pervert the course of justice” comprises two key elements of offence: actus reus and mens rea.

G2.   Actus reus

92.   In terms of actus reus, the offence of “attempting to pervert the course of justice” comprises two elements: “course of justice” and “pervert”.

93.   “Course of justice” has a two-fold legal meaning. First, it consists in the due exercise by a court of its jurisdiction to administer justice in accordance with the law and the actual circumstances of the case: Rogerson, page 280; that is to say, the expression “course of justice” is synonymous with the expression “administration of justice”: Rogerson, page 276 - both referring to the administration of justice by the court in exercising its jurisdiction: Wong Shing Yim, paragraph 21. And, as the court may only exercise its jurisdiction after the commencement of the curial proceedings (Rogerson, page 280), it follows that the “course of justice” is a reference to the curial proceedings: Wong Shing Yim, paragraph 22. 

94.   As for the element of “pervert”, while acts constituting “perversion” may be various depending on the facts of different cases, these acts of “perversion” invariably impair the jurisdiction of the court: Rogerson, page 280. So long as the relevant curial proceedings are imminent, probable or possible, the relevant acts perpetrated can cause prejudice to the jurisdiction of the court even when the curial proceedings have yet to commence: Rogerson, page 277; Wong Shing Yim, paragraph 23. 

95.   In the light of the above, “perverting the course of justice” can be so defined: “the deflection, frustration, impairment or hindrance of the ability of a court in any actual, imminent, contemplated or possible curial proceedings, to administer justice”: Egan, paragraph 124-126; Wong Chi Wai, paragraph 31; Wong Shing Yim, paragraph 30; Rogerson, pages 275-276, page 280. As Ma CJHC (as he then was) said in Wong Shing Yim:

“30. …The concept of perverting the course of public justice really just means the deflection, frustration, impairment or hindrance of the ability of a court … in any actual, imminent, contemplated or possible curial proceedings, to administer justice.”

96.   Any act that actually causes “the perversion of the course of justice” constitutes the actus reus of the offence of “perverting the course of justice”: Rogerson, page 280. Any act having a tendency to “pervert the course of justice” constitutes the actus reus of the offence of “attempting to pervert the course of justice”: Egan, paragraph 124; Wong Chi Wai, paragraph 31; Rogerson, page 280. The aforesaid tendency must be clear and manifest: Wong Shing Yim, paragraph 28. If the relevant act is perpetrated at a time when curial proceedings have yet to exist, there must be a discernible link between the act and any possible or actual curial proceedings: Wong Shing Yim, paragraph 24.[42]

97.   The present case concerns investigations by the ICAC. It is an established legal principle that criminal investigations by law enforcement agencies do not themselves form part of the curial proceedings. This is not to say that the obstruction or interference of these investigations would not constitute an attempt to pervert the course of justice. In the event that such acts carry a tendency to deflect or frustrate possible criminal prosecution, even if such prosecution has not been considered by the law enforcement agencies, the prejudice caused to the court in the exercise of its jurisdiction by these acts of preventing the institution of prosecution is comparable to the prejudice caused by interfering with the prosecution after the commencement of criminal proceedings in question, and hence sufficient to constitute the offence of “perverting the course of justice”. For relevant discussions, see: Rogerson, pages 277-278, 283-284; Egan, paragraph 127; Wong Shing Yim, paragraph 23.

G3.   Mens rea

98.   Ribeiro PJ in paragraph 32 of Wong Chi Wai set out two legal principles concerning the mens rea of “attempting to pervert the course of justice”.

(1)   To prove that a defendant intended to pervert the course of justice, it is necessary to prove that he knew that his conduct would have or that he intended it to have a tendency to pervert the course of justice in relation to the curial proceedings in question.

(2)   Where his conduct has a manifest tendency to pervert the course of justice, the required intention may readily be inferred from proof that the defendant intended to perform the relevant act. But where the act does not manifestly have the prohibited tendency, it is necessary to prove the abovementioned specific intent on the defendant’s part.

99.   We now proceed to the third ground of appeal.

H.   Tendency that can pervert the course of justice – Ground of Appeal (III)

100.   The third ground of appeal is related to the actus reus of the offence of “attempting to pervert the course of justice”.  The submissions of Mr Tse SC can be summarized into the following main points:

(1)   A tendency to pervert the course of justice refers to a person’s act having a tendency towards impairing the capacity of a court or judicial authority to do justice.  Such an act can be said to have a tendency to pervert the administration of justice.  The prosecution must prove that the act of the defendant in the present case had the same tendency.  Even if the prosecution could prove that the defendant did the act in the hope of stopping the prosecution, should the prosecution fail to prove that his conduct had the prospect of success, then it would not be sufficient to prove that his act had the tendency which could pervert the course of justice and the offence could not be made out accordingly:  see Tsui King Sing.

(2)   The prosecution in the present case alleged that the applicant sent the e-mails and letters in question to Leung and Peh in the hope that they could stop the on-going ICAC investigation into him and the Pearl Oriental case.  The prosecution merely cited a number of legal provisions to draw the inference that the pair had the power to do so.  The defence disputed the prosecution’s contention, nor did it agree that the pair was conferred with such power by these provisions.  In the end, the trial judge accepted the prosecution’s argument and ruled that the pair had the statutory power to stop any ICAC investigation.  He further ruled that Peh did have the discretion to adopt administrative means to end any investigation.  The trial judge erred in law in making such a ruling.

(3)   Besides, as far as the mechanism was concerned, the prosecution had never adduced any evidence to prove that the pair could halt any one of the ICAC investigations. Rather, the defence submitted several exhibits[43] to prove that there was a supervisory mechanism that exercised actual monitoring of the cases investigated by the ICAC.  Without approval from the “Operations Review Committee” (“Review Committee”), which functioned independently, the ICAC would never stop the investigation work on any cases.  The then Secretary for Justice did on numerous occasions openly and officially affirm the existence and good functioning of the said mechanism.  The prosecution did not call any evidence to rebut the argument concerning the said supervisory mechanism.  It only advanced a number of legal grounds in an attempt to undermine the statutory status, power, role and function of the Committee.  In fact, all these grounds ran counter to the public statements made by the Secretary for Justice.

(4)   In his Reason for Verdict, the trial judge only repeated the prosecution’s final submission and then found that the statutory status, power, role and function of the Committee could not override those of the Chief Executive and the Commissioner, nor could they affect the pair’s discretion regarding their possible power and action of ending the investigation of cases.  Other than mentioning the public statements made by the Secretary for Justice when repeating the contents of the defence exhibit, the trial judge did not mention the matter in any of the paragraphs of analysis.  As far as the whole issue was concerned, both the prosecution and the trial judge deliberately avoided touching upon the evidence in relation to the said statements.  The trial judge failed to deal with the issue adequately.

101.   The following legal issues arise from the submission of Mr Tse SC:

(1)   What is the relationship between the Commissioner and the Chief Executive under the statutory regime of the ICAC?

(2)   In accordance with the relevant legal provisions and the applicable legal principles, does the Chief Executive have the power to terminate any ICAC investigation?

(3)   In accordance with the relevant legal provisions and the applicable legal principles, does the Commissioner have the power to terminate any ICAC investigation?

(4)   What role does the Review Committee play under the statutory regime of the ICAC?  In particular, in accordance with the relevant legal provisions and the applicable legal principles, does the Review Committee have the power to terminate any ICAC investigation?

H1.   Relationship between the Chief Executive and the Commissioner

102.   The relationship between the Chief Executive and the Commissioner has to be defined within the statutory regime of the ICAC.   

103.   Prior to the handover, the statutory regime of the ICAC was established by the Independent Commission Against Corruption Ordinance [44] while the relationship between the Commissioner and the Governor was provided for in section 5 of the Independent Commission Against Corruption Ordinance.  Section 5(1) stipulated that the Commissioner, subject to the orders and control of the Governor, shall be responsible for the direction and administration of the Commission.  Section 5(2) provided that the Commissioner shall not be subject to the instructions and control of any other person other than the Governor.  Section 5 intended that the Commissioner was to be appointed by the Governor, independent of any person other than the Governor, and only accountable to the Governor:  Khan v O’Dea [1987] HKLR 150, judgment of Hunter J, page 154 B-C.

104.   After the handover, it is stated clearly in Article 57 of the Basic Law that a Commission Against Corruption shall be established in the Hong Kong Special Administrative Region.  It shall function independently and be accountable to the Chief Executive.  At the same time, the Independent Commission Against Corruption Ordinance is maintained as laws of the Hong Kong Special Administrative Region[45].   As such, after the handover, the legal provisions which establish the statutory regime of the ICAC are affirmed by Article 57 of the Basic Law and the Independent Commission Against Corruption Ordinance.  Sections 5, 12 and 14 to 17 of the latter deal with the relationship between the Chief Executive and the Commissioner.  To understand the relationship between the pair, it is a must to properly interpret Article 57 of the Basic Law and the relevant provisions of the Independent Commission Against Corruption Ordinance.

H1.1  Purpose of Article 57 of the Basic Law

105.   Article 57 of the Basic Law provides:

“ A Commission Against Corruption shall be established in the Hong Kong Special Administrative Region. It shall function independently and be accountable to the Chief Executive.”

The purpose of Article 57 of the Basic Law is:

(1)   to affirm that the establishment, existence and function of the ICAC shall be protected by the Basic Law and shall not be arbitrarily changed by local legislation or other means;

(2)   to confer the ICAC with independence, and providing that its regime of only being accountable to the Chief Executive and not subject to any control, instructions or interference of any other person is also protected by the Basic Law, and shall not be arbitrarily changed by local legislation or other means.

106.   Article 57 of the Basic Law assures that the ICAC, including the Commissioner, the head of the ICAC, shall function independently and only be accountable to the Chief Executive.  Since Article 57 of the Basic Law is a constitutional provision in general terms, it does not specify in detail as to how the Commission maintains its independence.  Neither does it lay down the detailed arrangement as to how it should operate in order to be accountable to the Chief Executive.  These matters are dealt with in sections 5, 12 and 14 to 17 of the Independent Commission Against Corruption Ordinance.

H1.2  Relevant provisions of the Independent Commission Against Corruption Ordinance

107.   Section 5 of the Independent Commission Against Corruption Ordinance provides:

“(1) The Commissioner, subject to the orders and control of the Chief Executive, shall be responsible for the direction and administration of the Commission.

(2) The Commissioner shall not be subject to the direction or control of any person other than the Chief Executive.

(3) The Commissioner shall hold office on such terms and conditions as the Chief Executive may think fit.

(4)   The Commissioner shall not, while he holds the office of the Commissioner, discharge the duties of any other prescribed officer[46].”

108.   Much like its predecessor, the purpose of section 5 of the Independent Commission Against Corruption Ordinance is to affirm that the Commissioner shall be appointed by the Chief Executive, be independent of any person other than the Chief Executive and only be accountable to the Chief Executive.

109.   Properly construed, section 5(1) means that the Commissioner:

(1)   being the head of the Independent Commission Against Corruption, shall be responsible for the direction and administration of the Commission;

(2)   in performing these duties, must be subject to the orders (if any) and control of the Chief Executive.

Section 5(1) does not confine the orders to or the scope of control on the Commissioner by the Chief Executive to direction and administration of the Commission.  This is consistent with the purpose of section 5(2).

110.   The proper construction of section 5(2) is that the Commissioner shall only be subject to the instructions and control of the Chief Executive.  Section 5(2) does not impose any restrictions on the instructions or control the Chief Executive may have on the Commissioner.

111.   Although sections 5(1) and (2) both use general terms and do not impose express restrictions as to how the Chief Executive should act, that does not mean that the Chief Executive can give orders or instructions to or exercise control over the Commissioner in a wanton, unrestricted manner.  The law applies checks and balances in various aspects regarding the Chief Executive’s conduct so as to prevent an abuse of power by the Chief Executive.  This issue will be discussed in detail in H1.3 below.

112.   Sections 14 to 16 of the Independent Commission Against Corruption Ordinance provide for the financial matters of the Commission and how the Commissioner shall be accountable to the Chief Executive:

(1)   Section 14 requires that the Commissioner, in each financial year, before a date appointed by the Chief Executive, shall forward to the Chief Executive, for his approval, estimates of the expenditure of the Commission for the next financial year.

(2)   Section 15(1) requires that the Commissioner shall maintain proper accounts of such expenditure by the Commission as the Chief Executive may require.  Section 15(2) requires that as soon as may be convenient after the end of each financial year, the Commissioner shall cause a statement of accounts during the previous financial year to be prepared.

(3)   Section 16(1) confers on the Director of Audit the entitlement that he, at any time, shall have access to all accounts maintained under section 15(1) and he may require such information and explanation thereon as he thinks fit.  Section 16(2) requires that the Director of Audit shall audit the statement of accounts prepared under section 15(2) and report thereon to the Chief Executive.

113.   Section 12 of the Independent Commission Against Corruption Ordinance defines the statutory duties of the Commissioner.  These statutory duties may be roughly divided into three categories, namely investigation [paragraphs (a) to (c)], prevention [paragraphs (d) to (f)] and education [paragraphs (g) to (h)].  The opening sentence of section 12 clearly states “It shall be the duty of the Commissioner, on behalf of the Chief Executive,” to perform the various statutory duties as set out in the section.  The wording carries two layers of meaning.

114.   Firstly, the duties in section 12 are first of all conferred on the Chief Executive. This is in conformity with the provisions in Article 48 of the Basic Law:

“ The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions:

…

To be responsible for the implementation of this Law and other laws which, in accordance with this Law, apply in the Hong Kong Special Administrative Region;

…”

According to Article 48 of the Basic Law, the Chief Executive is required to be responsible for the implementation of the laws, which certainly include the Independent Commission Against Corruption Ordinance as well as the other laws as stated in section 12(b) of the Independent Commission Against Corruption Ordinance.

115.   Secondly, since it is impossible for the Chief Executive to personally implement the Independent Commission Against Corruption Ordinance including the duties prescribed in section 12, section 12 authorizes the Commissioner to discharge the various statutory duties listed out in the section on behalf of the Chief Executive.  When the Commissioner, on behalf of the Chief Executive, performs the statutory duties (including investigation) of section 12, he of course has to be accountable to the Chief Executive as required by Article 57 of the Basic Law and section 5 of the Independent Commission Against Corruption Ordinance.  In other words, the Commissioner is subject to the instructions and control of the Chief Executive in performing the section 12 duties (including investigation).  Accordingly, the Chief Executive shall be entitled to give orders or instructions to the Commissioner concerning the performance of the section 12 duties (including investigation).

H1.3. Restraints on the Chief Executive in Exercising His Power

116.   As previously pointed out, the Commissioner is only accountable to the Chief Executive. The law, nevertheless, provides various checks and balances on the way the Chief Executive conducts himself in this regard to ensure that he does not abuse his power:

(1)   If the Chief Executive abuses his power and issues an improper or unlawful order or instruction to the Commissioner, or interferes in any way that is improper or even unlawful, his conduct is in violation of the objects of Article 57 of the Basic Law and the Independent Commission Against Corruption Ordinance, exceeds the authority vested in him by Article 57 of the Basic Law and the relevant provisions in the Independent Commission Against Corruption Ordinance.  His act is ultra vires, and has no effect in law.  See judgment of Ma CJHC (as he then was) in Chan Noi Heung & Others v The Chief Executive in Council, CACV 197/2007, paragraph 12.

(2)   In serious circumstances, an act of the Chief Executive outside of his authority would even constitute a criminal offence, including that of misconduct in public office or perverting the course of justice in common law.  An obvious example would be in a case where the Chief Executive, himself being the subject of an investigation by the ICAC, interferes in such investigation.  Such act would very probably amount to an aforementioned criminal offence.

(3)   In extreme circumstances, the conduct of the Chief Executive might amount to a serious breach of the law or dereliction of duty.  He might face investigation and impeachment procedures pursuant to Article 73(9) of the Basic Law, and might even be removed from office by the Central People’s Government upon impeachment by the LegCo.

117.   These restraints in law stringently regulate and restrict the acts of the Chief Executive under Article 57 of the Basic Law and the Independent Commission Against Corruption Ordinance, especially on matters related to investigations, barring him from improperly or even unlawfully interfering with the Commissioner.

H1.4. Restraints on the Commissioner

118.   If the Chief Executive issues an improper or unlawful order or instruction to the Commissioner, or interferes in any way that is improper or even unlawful, the latter can of course refuse.  If he accepts such an order, instruction or interference, the Commissioner himself might also be acting ultra vires or commit the offence of misconduct in public office or perverting the course of justice, etc.  These legal restraints on the Commissioner ensure that he would not act in collusion with the Chief Executive if the latter abuses his power or acts in breach of the law.

H2   Discretion to terminate investigation

119.   This case involves an investigation by the Commissioner into a crime of corruption.  The issue here is whether the Chief Executive or the Commissioner has the authority to terminate an ongoing corruption investigation by the ICAC.  This requires a correct construction of section 12(b) of the Independent Commission Against Corruption Ordinance.

120.   The provisions in section 12 are as follows:

“(a) receive and consider complaints alleging corrupt practices and investigate such of those complaints as he considers practicable;

(b) investigate—

(i) any alleged or suspected offence under this Ordinance;

(ii) any alleged or suspected offence under the Prevention of Bribery Ordinance (Cap. 201);

(iii) any alleged or suspected offence under the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554);

(iv) any alleged or suspected offence of blackmail committed by a prescribed officer by or through the misuse of his office;

(v) any alleged or suspected conspiracy to commit an offence under the Prevention of Bribery Ordinance (Cap. 201);

(vi) any alleged or suspected conspiracy to commit an offence under the Elections (Corrupt and Illegal Conduct) Ordinance (Cap. 554); and

(vii) any alleged or suspected conspiracy (by 2 or more persons including a prescribed officer) to commit an offence of blackmail by or through the misuse of the office of that prescribed officer;

…”

121.   The subject of a section 12(a) investigation is any corrupt practice, which can include, albeit not necessarily, a crime referred to in section 12(b), as per Cons VP’s judgment in Hall v Commissioner of ICAC [1987] HKLR 210, page 210 F-J.  Since corrupt practices are of a wider nature and scope than crimes of corruption, when the Commissioner receives and considers such complaints, section 12(a) provides him with a discretion to “investigate such of those complaints as he considers practical.”

122.   The subjectof a section 12(b) investigation is the criminal offences specified therein, and the section only requires the Commissioner to “investigate”.  Looking at the wording, section 12(b) does not confer on the Commissioner a discretion to (1) not investigate, or (2) investigate “as he considers practical” as stated in section 12(a), any alleged or suspected crime: see the judgment of Cons VP in Hall v Commissioner of ICAC, page 210G.  In other words, pursuant to section 12(b), the Commissioner must carry out an investigation on any such alleged or suspected crime.  In order to allow the Commissioner to conduct an investigationeffectively, section 13(1)(a) provides that the Commissioner may authorize in writing any officers of the ICAC to conduct an inquiry or examination.

123.   Although as stipulated in section 12(b), the Commissioner shall investigate any alleged or suspected crime, neither this section nor any other section of the Independent Commission Against Corruption Ordinance stipulates the manner in which the Commissioner shall carry out the investigation.  In this regard, the common law provides an established legal principle to guide the Commissioner in his actions. 

124.   Under common law, the police have a duty to enforce the law and investigate crimes, but at the same time the Commissioner of Police also has a wide operational discretion.  In Hill v Chief Constable of West Yorkshire [1989] 1 AC 53, Lord Keith said at page 59 D-F,

“ By common law police officers owe to the general public a duty to enforce the criminal law … a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review. So the common law, while laying upon chief officers of police an obligation to enforce the law, makes no specific requirements as to the manner in which the obligation is to be discharged.”

Apart from Hill, the same principle can be found in R v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118 and R v Chief Constable of Sussex, ex parte ITF Ltd [1999] 2 AC 418.

125.   Both the police and the ICAC are law enforcement authorities.  They both have a duty under the law to investigate crimes which fall under their respective jurisdictions, and likewise each also have practical considerations and limitations in terms of caseload, workload, resources and deployment of personnel, etc.  The abovementioned common law principle, therefore,also applies to investigations by the Commissioner of ICAC.  Similar to the Commissioner of Police, the Commissioner of ICAC has operational discretion when conducting investigations.  That is to say, although the Commissioner of ICAC shall carry out investigation in respect of any alleged or suspected crime in compliance with the stipulation of section 12(b) of the Independent Commission Against Corruption Ordinance, he does have discretion to decide the manner of the investigation, the approach of the investigation, and the amount of resources to be put in and the number of personnel deployed for that purpose.  He also has the discretion, on common law principles and upon considering all circumstances, to decide whether an ongoing investigation should be terminated.  An obvious example would be where initial inquiry has found the alleged or suspected crime to be sheer fiction or not supported by sufficient evidence, and to continue the investigation is bound to be an unavailing waste of ICAC resources.  In these circumstances, the Commissioner may of course exercise his discretion and terminate the investigation.

126.   As pointed out above, the Commissioner of ICAC conducts a section 12(b) investigation on behalf of the Chief Executive, and that means both of them have the same statutory duty to do so, although in actual fact the investigation is carried out by the Commissioner.  If, according to common law, the Commissioner being the one carrying out the investigation has the discretion to terminate an investigation, the same common law principle would of course apply to the Chief Executive, by whom the Commissioner’s power is conferred upon him.  That being so, the Chief Executive also has the same discretion to terminate any section 12(b) investigation in appropriate cases, but he must exercise such discretion through a direction or order to the Commissioner.

127.   Although the Commissioner and the Chief Executive have the discretion to stop a section 12(b) investigation, they cannot abuse such discretion.  As already mentioned before, they are both subject to legal restraints in a number of respects. Moreover, if they really improperly exercise that discretion to terminate an investigation, the Court can intervene, although such a situation should be extremely rare.

128.   Mr Tse SC contends that the Chief Executive and the Commissioner do not have the authority to terminate an investigation.  His arguments are summarized below.

129.   Firstly, Mr Tse SC submits that on a correct reading of Article 57 of the Basic Law and section 5 of the Independent Commission Against Corruption Ordinance, the requirement of the Commissioner’s being subject to the “orders and control of the Chief Executive” and subject to his “direction” means the Commissioner is only accountable to the Chief Executive on administrative matters but not operational matters, including investigations.  Mr Tse is of the view that the direction and control referred to in section 5 do not cover operational matters of case investigations. 

130.   In light of the legal positions and the construction of Article 57 of the Basic Law, sections 5 and 12 of the Independent Commission Against Corruption Ordinance as discussed above, Mr Tse’s submissions cannot stand.

131.   Secondly, Mr Tse SC submits that in addition, the “Chief Executive” in “subject to the orders and control of the Chief Executive and subject to the ‘direction’ of the Chief Executive” does not refer to the Chief Executive himself but the office of the Chief Executive.  This Court agrees that indeed the Commissioner is accountable to the office of the Chief Executive.  In general situations that do not involve the person holding the office of the Chief Executive, there is no substantive difference between the office of the Chief Executive and the holder of that office.  However, in the case of the person holding the office of the Chief Executive being involved in a corruption complaint or offence, the fact that the Commissioner is accountable to the office of the Chief Executive becomes of paramount importance.  Since he is only accountable to the office of the Chief Executive, the Commissioner can conduct an investigation on the holder of that office according to the law or even press charges, without any interference from the latter.

132.   Thirdly, Mr Tse SC refers to the “amnesty” in 1977 to prove that be it the Governor before the handover or the Chief Executive thereafter, neither of them ever had or has the authority in law to intervene in an ICAC investigation.  The ins and outs of the “amnesty” of 1977 can be found in detail in Bribery and Corruption Law in Hong Kong pp 54-98 and will not be repeated here.  Put simply, on 5 November 1977, the Governor of Hong Kong issued an order pursuant to section 5 of the Independent Commission Against Corruption Ordinance, directing the Commissioner not to investigate a certain category of persons involved in offences of corruption. This order was later legislated into section 18A of the Independent Commission Against Corruption Ordinance.  At that time, a scholar commented that the Governor had no authority to make that order.[47]

133.   This Court is of the view that the 1977 “amnesty” is of little assistance in this case: although the scholar questioned whether the Governor had the authority under section 5 of the Independent Commission Against Corruption Ordinance to issue the order to terminate investigations, he did not provide any analysis or discussion as to the construction of section 5.  In any event, after the handover, the requirement of the Commissioner of ICAC to be accountable to the Chief Executive has been provided for by Article 57 of the Basic Law and the Chief Executive has the official authority to enforce section 12 of the Independent Commission Against Corruption Ordinance pursuant to Article 48 of the Basic Law.  These changes in law have already established the relationship of accountability between the Chief Executive and the Commissioner under the current statutory regime as described above.

134.   Fourthly, Mr Tse SC relies on the above-mentioned legal restraints on the way in which the Chief Executive and the Commissioner conduct investigations.  The existence of these restraints must be on the basis of the Chief Executive and the Commissioner having the power to conduct investigations and to terminate them.  This, therefore, lends no support to Mr Tse’s position. 

135.   Finally, Mr Tse points out that apart from the legal restraints, on the matter of terminating an investigation, the Chief Executive and the Commissioner are also subject to the monitor of the Review Committee.  We will discuss this point below.

H3.   THE ROLE OF THE REVIEW COMMITTEE

H3.1  Brief Introduction

136.   The Review Committee, which is an executive body rather than a statutory body, could trace its origin back to the Target Committee set up by the Commissioner of Police in 1961.  The work of the Target Committee was of an advisory nature; its duty was to supervise the then Anti-Corruption Branch[48] of the Police Force in their dealings with corruption offences.

137.   When the ICAC was established in 1974, the Governor appointed the Operations Target Committee to oversee the work carried out by the Operations Department.  The Committee was composed of official members such as the Commissioner of ICAC, the Attorney General, and other non-official members.  In 1978, the Governor approved a change in the title of the Operations Target Committee to Operations Review Committee（“審查貪污舉報諮詢委員會”）.

138.   After the handover, the Review Committee is appointed by the Chief Executive, and it continues to carry out the work of its predecessors[49].

H3.2  Terms of Reference

139.   The duties of the Review Committee are specified by its terms of reference.  At the change in title in 1978, its terms of reference were:

“(1) To receive from the Commissioner information about all complaints of corruption made to the Commission and progress reports on the manner in which the Commission is dealing with them.

(2) To receive from the Commissioner reports on action taken by the Commission in the investigation of offences within its jurisdiction and to advise the Commissioner which complaints should no longer be pursued.

(3) To advise the Commissioner on what information revealed by investigations into offences within its jurisdiction shall be passed to Government Departments or public bodies, or other organisations and individuals.

(4)   To advise on such other matters as the Commissioner may refer to the Committee or on which the Committee may wish to advise.”

140.   The 1978 Annual Report by the Commissioner of the ICAC mentioned the change in title of the Committee and described the work of the Committee:

“Operations Review Committee

3.25 In July 1978, H.E. the Governor approved a change in the title of the Operations Target Committee (OTC) to Operations Review Committee (ORC), and its adoption of the new terms of reference which are set out on page 4. These reflect more accurately the functions of the Committee with regard to the work of the Operations Department.

3.26 The processes by which a report is received, considered and investigated by the Commission provide for scrutiny at separate stages by different officers. This ensures that no individual officer may dispose of a report or unwittingly overlook something which is of importance. Ultimately, every report alleging corruption which is received by the Operations Department, and which does not result in a prosecution after investigation, must be scrutinized by the Operations Review Committee (ORC) or its sub-committee (ORC(SC)), before it can be written off.

3.27 The ORC studies reports on all investigations which have not resulted in a prosecution, and gives advice and makes recommendations whenever it considers further actions is necessary. Where an investigation has resulted in a criminal prosecution, the outcome of the prosecution is reported back to the Committee, which may advise that there are further matters to be considered.

3.28 Where there has been no criminal prosecution, but where there is still evidence or suspicion of corruption, or a disciplinary offence, or malpractice, or other undesirable behaviour on the part of a Crown servant, the Committee may recommend that a report with full details be sent to the Secretary for the Civil Service, or the officer’s Head of Department, for whatever action is deemed necessary.

3.29   The Committee may also advise that reports arising from the Operations Department investigations be passed to the Corruption Prevention Department for further scrutiny of practices and procedures which may present opportunities for corruption.”

141.   According to its terms of reference and the statement in the Annual Report by the Commissioner of the ICAC, the work of the Committee was obviously of an advisory nature; its purpose was to allow the Committee to oversee the investigative work of ICAC officers, rather than becoming another decision-making body within the organisation structure of ICAC[50].

142.   Since 1978, there have been changes to, and expansion of, the terms of reference of the Review Committee.  As of 2013, that is, the year in which the offences in our present case took place, the terms of reference of the Committee were[51]:

“1. To receive from the Commissioner information about all complaints of corruption made to the Commission and the manner in which the Commission is dealing with them.

2. To receive from the Commissioner progress reports on all investigations lasting over a year or requiring substantial resources.

3. To receive from the Commissioner reports on the number of, and justifications for, search warrants authorised by the Commissioner, and explanations as to the need for urgency, as soon afterwards as practicable.

4. To receive from the Commissioner reports on all cases where suspects have been bailed by ICAC for more than six months.

5. To receive from the Commissioner reports on the investigations the Commission has completed and to advise on how those cases that on legal advice are not being subject to prosecution or caution, should be pursued.

6. To receive from the Commissioner reports on the results of prosecutions of offences within the Commission’s jurisdiction and of any subsequent appeals.

7. To advise the Commissioner on what information revealed by investigations into offences within its jurisdiction shall be passed to government departments or public bodies, or other organisations and individuals, or, where in exceptional cases, it has been necessary to pass such information in advance of a Committee meeting, to review such action at the first meeting thereafter.

8. To advise on such other matters as the Commissioner may refer to the Committee or on which the Committee may wish to advise.

9. To draw to the Chief Executive’s attention any aspect of the work of the Operations Department or any problems encountered by the Committee.

10.   To submit annual reports to the Chief Executive which should be published.”

143.   Although there has been quite an expansion in its terms of reference over the years, the core duties of the Committee remain advisory in nature, and it is responsible for overseeing the investigative work of the ICAC.  This can be seen from page 63 (page 68 in the English version) of “40 Years in the Operations Department (1974-2014)”, a publication of the ICAC:

“ Checks and balances are important in ensuring that the Commission is fulfilling its law enforcement charter and that the Commission is engaging the community in the fight against corruption. The Operations Review Committee (ORC) is, first and foremost, the oversight committee instrumental in ensuring that the Department stays on the right path. Originally named the Operations Target Committee, its name was changed in 1978 (while its name in Chinese remains unchanged) and new terms of reference were adopted in light of experience in the previous four years. It is an important oversight committee representing the community and ensuring that the Operations Department conducts itself in an accountable and professional manner when dealing with corruption complaints made to the Commission.

The ORC strikes a right balance between protecting the confidentiality of investigations whilst representing the community in monitoring the work of the Operations Department and the public’s right to know how the Commission is enforcing the law.”

H3.3  No Power under the Law to Terminate Investigations

144.   As a matter of law, the Review Committee cannot exercise any control over the Commissioner, nor can the Committee issue any directions or orders to the Commissioner, for such would be in breach of Article 57 of the Basic Law as well as section 5(1) and (2) of the Independent Commission Against Corruption Ordinance, which stipulate that the Commissioner shall work independently and is only accountable to the Chief Executive.

145.   Of particular relevance to this case is that, legally, the Review Committee has no power to terminate investigations conducted by the Commissioner according to section 12 of the Independent Commission Against Corruption Ordinance, as the Commissioner has never, according to section 13(1)(d) of the Independent Commission Against Corruption Ordinance, authorised in writing the Committee to perform investigation duties under section 12 or to exercise his power to investigate; and as the Committee has not been authorised by the Commissioner to conduct investigations, it surely would not be able to exercise the discretionary power vested in the Commissioner under common law to terminate investigations.

146.   Mr Tse agrees that although the Review Committee lacks legal power to bind or overrule the decisions of the Commissioner, its most vital task is to oversee the work of the ICAC in the investigation of corruption complaints and offences.  Ever since its establishment, the ICAC has, through various channels including its annual reports and internet website, expressed to the general public that it would follow the Review Committee’s advices and comments.  Mr Tse considers that such practice has formed the “well-established” checks and balances in the system.

147.   To support his stance, Mr Tse has quoted passages from publications published by the ICAC, including its Annual Reports published between 1974 and 2015 as well as the Operations Department Review published between 1998 and 2014.  The contents of the publications relied on by Mr Tse are virtually identical, and we only need to quote the relevant parts as follows:

(1)   ICAC Annual Report 2013[52]:

“ Checks and balances are important in ensuring that the Commission is fulfilling its law enforcement charter and that the Commission is engaging the community in the fight against corruption. The Operations Review Committee (ORC) is, first and foremost, the oversight committee instrumental in ensuring that the Department stays on the right path. Originally named the Operations Target Committee, its name was changed in 1978 (while its name in Chinese remains unchanged) and new terms of reference were adopted in light of experience in the previous four years. It is an important oversight committee representing the community and ensuring that the Operations Department conducts itself in an accountable and professional manner when dealing with corruption complaints made to the Commission.

(2) Operations Department Review 2014:

“   All complaints alleging corruption will be reported to the Operations Review Committee (ORC)…All completed investigations have to be endorsed by the Committee before they are closed.”

(3) In 2004, the then Chairman of the Operations Review Committee stated in “Is the Independent Commission Against Corruption (ICAC) really doing its job?”:

“   The ORC reviews every complaint made and cases investigated by the ICAC…No investigation can be terminated without ORC consent.”

148. Mr Tse points out that even the website of the ICAC says:

“   … the Operations Review Committee which is the sole authority to terminate an investigation.”

149. Apart from the ICAC’s open statements, Mr Tse has also quoted the open statements by the Administration, those by the then Secretary for Justice, as well as those by Peh:

(1) In 2008, when the LegCo Bills Committee deliberated on the Prevention of Bribery (Amendment) Bill 2007, in the various documents submitted to the Bills Committee, the Administration stated the following:

“5.    Operations Review Committee (ORC) was responsible for receiving from ICAC information about all corruption complaints and the manner in which C, ICAC was dealing with them.  ORC was tasked to ensure that all corruption complaints (including complaint case against CE) should be handled properly.  Regardless of whether the ICAC’s investigation would point towards substantiating an allegation or otherwise, C, ICAC would submit a full report to the satisfaction of the ORC. Where SJ decided against prosecution upon examination of the ICAC’s investigation report, ICAC would report the proposal to end an investigation or close a case to ORC.”

(2) On 16 October 2013, in his reply to a question put forward by a certain Member of the LegCo, the then Secretary for Justice stated that:

“Insofar as the decision of the Independent Commission Against Corruption (ICAC) whether to commence and continue with its investigation is concerned, there is a well-established and effective procedure in place. In accordance with section 12 of the Independent Commission Against Corruption Ordinance, the ICAC Commissioner has a statutory duty to investigate pursuable allegations under the Prevention of Bribery Ordinance. All cases, including cases which are eventually classified as non-pursuable complaints, are carefully considered by the Operations Review Committee (ORC) on a regular basis. Apart from ex-officio members, the ORC comprises members who are not government officials, but are from different sectors of the community and are fully independent of the ICAC. No case, whether involving pursuable or non-pursuable allegations, will be closed by the ICAC without the endorsement of the ORC. This mechanism is well-established and has provided adequate check and balance.”

(3) On 23 November 2016, in a letter to a certain Member of the LegCo, Peh made a similar statement[53]:

“In fact, ICAC always investigates corruption complaints according to the law in a highly professional and impartial manner.  All corruption investigations have to be reported to the Operations Review Committee in accordance with the established procedures. The Operations Review Committee is an independent body composing of four Ex-Officio Members and 13 Non-Official Members who are drawn from a broad cross section of the community with different professions and backgrounds. Together they jointly scrutinize the investigative work of the Operations Department.  With such a strict scrutiny system in place, it would be impossible for any individual to interfere with the investigative work of the ICAC.”

150. By reason of the combination of the documents relied upon, Mr Tse argues that the system has the following checks and balances over the Chief Executive and the Commissioner:

“(1) The Review Committee oversees all cases currently under the ICAC’s investigation;

(2) Once investigations have been completed, a case will be sent to the Department of Justice for their decision as to whether it is subject to prosecution;

(3)   Consent must first be obtained from the Review Committee if the ICAC wishes to terminate investigation as regards cases that on legal advice will not be subject to prosecution.”

151.   We are of the view that even if there exist these so-called checks and balances in the system, the law definitely does not provide for the Review Committee any power to terminate investigations conducted by the Commissioner according to section 12 of the Independent Commission Against Corruption Ordinance:

(1)   As stated above, the Commissioner has not authorized the Review Committee to conduct investigations according to section 13(1)(d) of the Independent Commission Against Corruption Ordinance, thus the Review Committee does not have any power under the law to terminate such investigations.

(2)   Section 12 of the Independent Commission Against Corruption Ordinance only provides for the Chief Executive and the Commissioner the duties and powers to conduct investigations.  According to established legal principles, such duties and powers must remain in their control – so as to carry out such duties and exercise such powers in person, unless the law, such as section 13(1)(d) of the Independent Commission Against Corruption Ordinance, specifically allows them to authorize other persons to perform such duties and exercise such powers: See Judicial Review Handbook (6^th edition, 2012), paragraph 50.1; De Smith’s Judicial Review (7^th edition, 2013), paragraph 148.  Thus, under the law, these so-called checks and balances in the system cannot deprive the Chief Executive and the Commissioner of their relevant duties and powers to conduct investigations provided for by section 12 of the Independent Commission Against Corruption Ordinance, including the power to terminate an investigation under common law, and confer such duties and powers to the Review Committee.

152.   Furthermore, even though in actual practice, the Review Committee will review cases investigated by the ICAC and the Commissioner will seek advice and endorsement from the Review Committee as well as legal advice from the Department of Justice, legally, the ultimate decision as to whether or not to terminate an investigation is still made by the Chief Executive and the Commissioner, for they are still the persons to whom the statutory duties and powers are provided for by section 12 of the Independent Commission Against Corruption Ordinance: See R v DPP, ex parte Association of First Division Civil Servants (1988) Times 24 May (QB). Notwithstanding the advice from the Review Committee or the legal advice from the Department of Justice, legally, such advice cannot substitute the Chief Executive’s and the Commissioner’s decision as to whether or not to terminate an investigation.

153.   We are of the view that the open statements made by the Commissioner, the Administration or the Secretary for Justice must be read from the legal point of view stated above. Under the checks and balances in the system, the Review Committee will oversee the investigative work of the ICAC, while the Commissioner will seek the Committee’s advice and endorsement before terminating an investigation.  This is just to ensure that there would be no abuse of powers to terminate an investigation by the Commissioner and the Commission’s investigations will not be terminated under improper circumstances.  However, the Commissioner still makes the ultimate decision as to whether or not to terminate an investigation.

H4.   Conclusion

154.   In the light of the above analysis and discussion of the legal issues arising in this Part, this Court concludes:

(1)   Under the statutory regime of the ICAC, the Commissioner works independently, is accountable only to the Chief Executive and subject to the control of the Chief Executive; the Chief Executive may give directions or orders to the Commissioner. 

(2)   According to applicable legal provisions and principles, both the Chief Executive and the Commissioner have the power to terminate an investigation under section 12 of the Independent Commission Against Corruption Ordinance.  The Chief Executive may give orders or directions to the Commissioner to terminate an investigation.  However, both the Chief Executive and the Commissioner are subject to the constraint of the law and shall not act arbitrarily or abuse their powers.

(3)   The Committee do not have the statutory power to terminate an investigation conducted by the ICAC. The power to make the ultimate decision to terminate an investigation is reserved to the Chief Executive and the Commissioner. 

155.   Based on the above conclusions on the law, this Court finds that the arguments advanced by Mr. Tse, SC (see paragraph 100 above) are unsustainable and the third ground of appeal is thus not substantiated.

I.   Legal principles of perverting the course of public justice – Ground of Appeal (IV)

I1.   Submissions of both parties

156.   Mr Tse SC submits that the trial judge misunderstood the judgment of Wong Chi Wai.  He contends that the legal principle applicable in the present case should be those as set out in paragraphs 30 to 32 of the judgment of that case instead of paragraph 33 which the trial judge relied on.  He further contends that even if the legal principle set out in paragraph 33 was also applicable, the court must take into consideration the background and reasons behind the applicant’s conduct in determining whether the purpose was “lawful” or “unlawful or improper”.  Since “unlawful or improper” was not the equivalent of “illegal or contrary to the law”, the trial judge should not rely merely on the superficialnature of the means used to determine whether the applicant’s conduct was contrary to the law.  Mr Tse SC submits that the proper construction of “unlawful or improper” was whether it was likely to impair the administration of public justice.  If the applicant’s conduct was no more than using threat or applying pressure to exercise a legal right, then the means used was “lawful”.

157.   Mr Tse SC further submits that the trial judge overlooked the illustration the Court of Final Appeal gave in paragraph 33(d) of the judgment of Wong Chi Wai.  As far as the present case is concerned, the court should consider the background and reasons behind the applicant’s conduct to determine the purpose.  Mr Tse contends that the letters exhibits of the case, the unpleasant past dealings between the applicant and Leung, and the statements of the applicant all showed that the applicant (genuinely) believed that the investigation of the Pearl Oriental case was utterly unusual and unreasonable.  He was hoping that Leung would stop framing him with the corruption offence.  That was his purpose and according to the reasoning in Wong Chi Wai, this too was a “lawful purpose”.  Mr Tse SC submits that the trial judge ruled that the means used was “illegal” merely because the letters contained threatening sentences.  Mr Tse SC contends that those sentences only said that articles would be published to procure Leung’s resignation.  There was no evidence to show that the applicant would fabricate the contents.  Besides, making criticisms against a public figure (to procure his resignation) was an exercise of the right to freedom of speech.  As stated in paragraph 33(f) of Wong Chi Wai, threatening to exercise a legal right was “lawful”.

158.   In reply, Ms Anna Lai SC for the respondent, says that Mr Tse SC has only made so meandering a speech to indicate that it was the applicant’s adamant belief that at the time he was persecuted by Leung and innocently subjected to the investigation by the ICAC. The e-mails and letters were sent to Leung and Peh only because he was anxious and infuriated.  Therefore, his “purpose” was not “improper” and neither was the means used “illegal or contrary to the law”.  Most of all, he was only exercising his legal right to air his grievance and speak out for justice and that constituted a “lawful” act.  Ms Lai SC is of the view that the trial judge apprehended and grasped the applicant’s defence completely.  Although the trial judge did not conduct a meticulous analysis of the applicant’s conduct in terms of the “purpose” and the “means” used as the applicant has alleged, he did precisely, clearly and thoroughly set out in paragraphs 78 to 82 of his Reasons for Verdict the elements constituting the offence of perverting the course of public justice together with all the issues which were contested in the present case.  Therefore, there is no justification for the Court of Appeal to accept the submission of Mr Tse SC that the trial judge failed to apply the relevant legal principles comprehensively and correctly.

I2.   Our View

159.   The legal principles as set out in paragraph 33 of Wong Chi Wai with regard to actus reus are focused on conducts attempting to influence witnesses.  The general applicable principles are those set out in paragraphs 30 to 32.  That said, when the trial judge applied paragraph 33, he could not possibly have been unaware that paragraph 33 was focused on conducts attempting to influence witnesses.  Therefore, what he actually meant to say was that he would adopt the approach of paragraph 33 for the purpose of scrutinising the applicant’s conduct in question to determine whether what he did had perverted the course of public justice.  This Court considers that in the circumstances of the present case, there was nothing improper for the trial judge to apply the stricter test and standard set out in paragraph 33.  Mr Tse SC’s complaint against the trial judge is not established.

160.   This Court agrees with the trial judge’s analysis of the applicant’s conduct in question and all his findings on the “purpose” and the “means” used including his refusal to accept the submissions made by the applicant in court and the position of the defence. The trial judge was not in error as alleged by Mr Tse SC.

161.   Taking into account the whole of the evidence, this Court considers that the applicant’s sending out of the First Letter and the Second Letter constituted illegal threatening means with the intent to cause the Chief Executive and the Commissioner to succumb and terminate the investigation of the Pearl Oriental case by the ICAC.  What he did undoubtedly constituted an act of attempting to pervert the course of public justice.  The verdict reached by the trial judge is correct.

J.   Inadequacies of the Reasons for Verdict – Ground of Appeal (V)

162.   As stated in the above, the sub-paragraphs of the fifth ground of appeal, namely sub-paragraphs (1) to (4) and sub-paragraphs (6) to (8), overlap with the first to the fourth grounds of appeal respectively.  Since this Court has already found that all the first to the fourth grounds of appeal are not substantiated, it follows that the respective paragraphs are also not substantiated.  What remains to be dealt with are paragraphs 5(5), (9) and (10).

J1.   Paragraph V(5)

163.   Mr Tse SC contends that the trial judge erred in accepting the prosecution’s submission that according to the principle enunciated in Lee Chi Wai, the fact that the applicant was earlier found not guilty in the Pearl Oriental trial was irrelevant to the offence of the present case.  Mr Tse SC further contends that this fact was adduced in court by way of admitted facts.  If the prosecution’s position was correct, the prosecution should have objected to this fact being produced as evidence, let alone admitting it in the agreed facts.  Mr Tse SC contends that the trial judge misunderstood the judgment of Lee Chi Wai.  In that case, the court only held that the prosecution was not required to prove that the defendant would be convicted nonetheless should there be no act of perverting the course of public justice, thus, a legally not guilty verdict would not be one of the factors the court should consider in grounding a conviction.  The court, however, did not hold that a factually not guilty verdict would necessarily be irrelevant to the facts of the case, especially when it came to the applicant’s belief and mental state.

164.   Ms Lai SC submits that the prosecution acceded to include in the admitted facts as background information that the applicant was found not guilty in the Pearl Oriental trial because this was an indisputable fact.  It did not mean that the prosecution assented to the defence’s submission, which was that an inference could be drawn from the applicant’s acquittal in 2015 that he did not have the intent to pervert the course of public justice when committing the offence in 2013.  The applicant was acquitted eventually in that case because the jury formed the view that the prosecution had as a matter of law failed to prove every element of the offence beyond a reasonable doubt.  In the same vein, if the applicant was on the contrary convicted in that trial, the trial judge also could not infer on this basis that he had the intent to pervert the course of public justice in 2013. It was therefore proper for the trial judge not to consider the outcome of the Pearl Oriental trial.

165.   According to the legal principles reiterated by this Court in Part G above, the offence of “attempting to pervert the course of public justice” is complete when the defendant embarks on the crime. Whether the defendant is subsequently charged with an offence related to the offence of “attempting to pervert the course of public justice” or whether he is found guilty in the trial of the latter offence is irrelevant to his earlier commission of the offence of “attempting to pervert the course of public justice”.  This is exactly the principles enunciated in Lee Chi Wai. The submission advanced by Ms Lai SC on this point is correct.  The trial judge did not misunderstood the judgment of that case.  He was completely correct in not considering the fact that the applicant was found not guilty in the Pearl Oriental trial.

J2.   Paragraph V(8)

166.   In his submission, Mr Tse SC contends that the uncontested evidence showed that the Second Letter (Peh) was put inside an envelope mistakenly marked “For Chief Executive Leung’s eyes only”. Since Peh could not open the envelope for reading, the tendency to pervert the course of public justice, so far as Peh was concerned, did not exist and this was the applicant’s position in the original trial.  The trial judge, however, misinterpreted what the applicant said by taking it to mean that “there was no evidence to suggest that Commissioner Peh did actually read the letter or was influenced by it”, paragraph 95 of his Reasons for Verdict refers.  Furthermore, the trial judge continued to state that “especially when there was in the case another … letter delivered to … Commissioner Peh”.  This was also not a fact and lacked evidential basis.

167.   In reply, Ms Lai SC submits that  the fact that a copy of the letter sent by the applicant to the Commissioner was put in an envelope mistakenly marked “For the eyes of Chief Executive Leung only” had no bearing on the intent of another asking Peh to “consider the issue from a political and macroscopic perspective, and urgently cease the unreasonable persecution against me in order to avoid a huge impact in society, or else a political bomb will be detonated!”, so as to stop the investigation of him or other people involved in the Pearl Oriental case.  It also had no bearing on the fact that the applicant’s acts had the tendency to pervert the course of public justice.  This is because the applicant particularly instructed his assistant to arrange for a copy of the letter to be delivered by hand to the headquarters of the ICAC and it was especially marked in the letter that it was copied to the Commissioner. Whether Peh did eventually read the letter, and if he did, whether there was an influence on him were immaterial.  The offence in this case is not criminal intimidation.  Leung and Peh were not the victims of this case.  The real victim bearing the brunt of the impact was the judicial system of Hong Kong.

168.   This Court agrees with Ms Lai SC’s submissions.

J3.   Paragraph V(9)

169.   Mr Tse SC complains that the trial judge was selective in analysing the sentences in the e-mails and letters in that only those sentences which were prejudicial to the applicant were emphasized whereas the exculpatory ones were ignored.   Also, the sentences which represented the belief and mental state of the applicant were not analysed.  Therefore, his Reasons for Verdict was extremely inadequate.

170.   This Court has read thoroughly the letters and e-mails in question and the trial judge’s detailed analysis of their contents and relevant evidence.  In our view, the trial judge dealt with the contents of the letters and e-mails carefully, impartially and thoroughly. The complaint made by Mr Tse SC is not fair.   

J4.   Paragraph V(10)

171.   Mr Tse SC stresses that the trial judge was obliged to analyse the salient points of the defence, give reasons and make findings and account for the outcome to the defence and the public: Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority [1997-1998] 1 HKCFAR 279 at 289E-H, 290D-291A and 293A-E. However, there were a number of arguments advanced by the defence which the trial judge did not deal with at all.  Nor was there any analysis or discussion thereof in his Reasons for Verdict.  They were even never mentioned.  Mr Tse SC sets out the issues and arguments which were not or not fully dealt with by the trial judge in paragraphs 48-50 of his written submission.

172.   Having read thoroughly the Reasons for Verdict as well as the issues and arguments set out by Mr Tse SC, this Court considers that the trial judge had already discharged his duty by correctly setting out the criminal elements of the offence of “attempting to pervert the course of public justice”.  He also sufficiently, carefully and thoroughly analysed all the evidence and clearly stated the reasons for his fact finding and verdict.  Even though he did not deal with all the arguments advanced by the applicant in meticulous details (he was not obliged to do so as a matter of law), the applicant has not been able to provide any reason for doubting that there was any omission or mistake in law or evidence on the part of the trial judge.

J5.   Conclusion

173.   This Court finds that the fifth ground of appeal is also not substantiated.

K.   Conviction was unsafe and unsatisfactory – Ground of Appeal (VI)

174.   The sixth ground of appeal is a general ground of appeal based on the first to the fifth grounds.  Since all those grounds are not substantiated, the applicant’s conviction was neither unsafe nor unsatisfactory.

L.   Conclusion

175.   For the above reasons, this Court refuses the applicant’s application for leave to appeal and upholds the trial judge’s guilty verdict.

Annex 1

Annex 2

Annex 3

Annex 4

Annex 5

Annex 6

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.