SECRETARY FOR JUSTICE v. NG WAI BING AND OTHERS

CACV 247/2010 & CACV 11/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 247 OF 2010 AND 11 OF 2011

(ON APPEAL FROM HCMP NO. 840 OF 2010)

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BETWEEN

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JUDGMENT

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Hon Tang VP:

Introduction

1.  On 6 May 2010, Wright J granted leave to apply for committal for contempt of court against the three Respondents. 

2.  On 21 October 2010, Wright J found the 1^st and 2^nd Respondents guilty of contempt as charged, but acquitted the 3^rd Respondent. 

3.  On 23 December 2010, the learned judge delivered his decision on penalty in relation to the 1^st and 2^nd Respondents.  He ordered the 1^st Respondents to be imprisoned for 9 months, and the 2^nd Respondent for 6 months.  He also ordered that they pay the costs of the SJ on an indemnity basis.  However he ordered that the terms of imprisonment be suspended for 18 months.  In relation to the 3^rd Respondent, Wright J made no order as to costs. 

4.  This is the Secretary for Justice's appeals against the sentences of the 1^st and 2^nd Respondents (CACV 11/2011), and the acquittal of the 3^rd Respondent (CACV 247/2010).  The appeals were heard together.  At the conclusion of the hearing, we dismissed the appeal against sentence with costs.  We reserved our decision in relation to the appeal against the acquittal of the 3^rd Respondent.

5.  I am now of the view that the appeal against the acquittal of the 3^rd Respondent should also be dismissed.  These are my reasons for both decisions.

Background

6.  Following an undercover investigation of criminal activities alleged to have taken place in various massage/sauna parlours in Kowloon between 2004 and 2005, nine defendants were charged in DCCC 1280/2005 with one count of conspiracy to manage a vice establishment, amongst whom the 4^th Defendant, CHEUNG Sai-kit ("Cheung"), a retired police officer[1].  Cheung is the husband of the 1^st Respondent, who is also a retired police officer.

7.  Cheung was represented by Mr Raymond Yu, who was instructed by Messrs. Anthony Kwan & Co.  The 3^rd Respondent is a law clerk in that firm.  He is also a retired police officer.  The 3^rd Respondent performed the function of the instructing solicitor at the trial.

8.  The trial in DCCC 1280/2005 (the vice trial) began on 17 April 2007 before Deputy District Judge M.C. Jenkins.  PC 53687 who had participated in the undercover operation was the first prosecution witness.  On 5 December 2007, when counsel for the prosecution indicated that he intended to close the prosecution case, Mr Raymond Yu applied for the recall by the prosecution of PC 53687, because of certain recorded conversations.  As a result a number of police officers were recalled to testify so that they might be cross-examined regarding the recorded conversations.

9.  Because of the quality of the recording, Deputy District Judge M.C. Jenkins held a voir dire to resolve the question of authenticity and admissibility of the recording.  The following agreed facts before Wright J are relevant:

"(6)   The 1^st Respondent testified that towards the end of April 2007 she overheard PW1 talking to another police officer known to her as 'Spare Rib' as they left Court Room No. 24 at the end of that day's hearing. The 1^st Respondent stated that she heard 'Spare Rib' say to PW1, 'That's right, just fucking nail them'. She at this juncture became worried that police witnesses might falsely collude together or might not tell the truth against the defendants including the 4^th Defendant, her husband. The 1^st Respondent decided to see if she could obtain evidence to support the concern she felt.

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

(8)   The 1^st Respondent said that the prosecution witnesses, including PW1 always stayed inside the same witness room just outside Court Room No. 24 which the 1^st Respondent recorded in her notes as 'Rm 2' (for Room 2).

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

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

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

10.  The recording having been admitted into evidence, on 4 February 2008, on a submission of no case to answer, Deputy District Judge M.C. Jenkins acquitted all the defendants[2].  The vice trial had taken approximately 150 court days.

11.  In his ruling, the learned Deputy Judge said:

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

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

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

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

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

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

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

12.  The acquittal was the direct result of the conduct of the 1^st Respondent, who with the help of the 2^nd Respondent, a family friend, had covertly placed a MP3 recorder in a witness' room outside the court room in which the trial was taking place to record the conversation of certain prosecution witnesses.  The recording started on 7 May 2007 and continued until 7 September 2007, and there were a total of 47 audio recordings. 

13.  As a result of the recording, two police officers, namely PC53687 (Yeung Ka-ho) and Chow Chi-pang, were charged with two offences in DCCC 884/2010 (the policemen trial).  They were convicted of both offences by District Judge Yau on 21 April 2011 and sentenced to concurrent terms of 2 years and 3 months[3]. 

14.  The policemen trial concerned the recording on 1 June 2007.  The substance of two charges[4] was that on 1 June 2007 at the witness room, Yeung Ka-ho who was in the course of giving evidence for the prosecution in DCCC 1280/2005 and Chow Chi-pang, an exhibits officer:

"(a)   … discussed the evidence already given by YEUNG Ka-ho in the said proceedings; and

(b)   they discussed how YEUNG Ka-ho should give further evidence in the said proceedings and in particular, that YEUNG Ka-ho should avoid becoming confused between the true parts of his evidence and the false parts of his evidence and that YEUNG Ka-ho should memorise the false parts of his evidence so as to avoid any confusion in the future."

DCCC 882/2010 (Perjury Trial)

15.  The evidence of the 1^st Respondent before the Deputy District Judge M.C. Jenkins was that she had not told the 3^rd Respondent until December 2007 that she had arranged covert recording in the witness' room of the District Court for the purpose of the previous trial.  Deputy District Judge M.C. Jenkins was told that the 1^st Respondent had kept a log of the recording and that in her log for 16 May 2007, she had written:

"Today I informed Tak Goh about my audio recordings"

16.  On 14 January 2008, under Re-examination in the voir dire, she told Deputy District Judge M.C. Jenkins that:

"Well, I told the court solicitor's clerk that I had made recording in relation to the conversations of some people." 

17.  However, she went on to say that she had not told the 3^rd Respondent who those people were.

18.  She was subsequently prosecuted for perjury on the basis that such evidence was false.

19.  She was convicted by District Judge Longley on 25 March 2011 and sentenced to imprisonment for 6 months on 25 March 2011.  Judge Longley said:

"40.   I am satisfied that on the evidence before me the only reasonable inference is, that by her note, 'Today I informed Tak Goh (the 3^rd Respondent) about my audio recording of 16 May 2007', she was recording that she had informed him exactly what she was doing, namely, making covert recordings in the witness room of the District Court during the ongoing criminal trial.  It is fanciful to suggest that she would have told him anything else."

20.  The 1^st Respondent has not appealed her conviction in the perjury trial[5]. That being the case, I shall proceed on the basis that she has been correctly convicted.  Be that as it may, and Mr McCoy did not contend to the contrary, the decision of District Judge Longley that her evidence before Deputy District Judge M.C. Jenkins was untrue, is not evidence against the 3^rd Respondent that such evidence is indeed untrue.

These Appeals

21.  These appeals are brought under section 50(2) of the High Court Ordinance (Cap. 4).

Sentence of R1 and R2

22.  Section 50 is modelled on section 13 of the Administration of Justice Act 1960.  A leading authority is Neil v Ryan [1998] 2 FLR 1068 (CA) a decision of the English Court of Appeal, where Judge LJ (as he then was) said the power to increase a sentence at page 1069:

"… must be used sparingly. The sort of circumstances in which it could reasonably be used would be to approach the problem as if the case were a reference by the Attorney General under the Criminal Justice Act 1988. Plainly, this is not a case which comes within that jurisdiction, but a sentence should not be increased under that Act unless the court is satisfied that it is not merely lenient, but 'unduly' lenient. And, what is more, if the court reaches that conclusion, when deciding the appropriate level of sentence the court must also reflect the element of what is sometimes described as double jeopardy."

23.  I have no doubt that the conduct of the 1^st and 2^nd Respondents (see, for example, the agreed facts quoted in para. 9 above) amounted to a criminal contempt of court, and I agree with Wright J that:

"53.   … that proof of a specific intent to interfere with the administration of justice would not be a prerequisite for liability for criminal contempt. …

……

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

The nature of the act

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

……

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

24.  I also agree with Mr McCoy, appearing for the Secretary, that it is necessary to distinguish motivation from intention.  In Connolly v Dale [1996] QB 120, Balcombe LJ, giving the judgment of the Divisional Court, said:

"… Even though we accept that the detective superintendent's motive was benign, in the sense that he was motivated to prevent the contamination of the proposed identification parade, his intent, as is apparent from the facts set out above, was deliberately to prevent the applicant's solicitors from having full and unimpeded access to potential alibi witnesses."  Page 126

25.  However, although the detective superintendent was found guilty of contempt, the Divisional Court decided that it was inappropriate to impose a penal sanction.

26.  Ours is a highly unusual case.  As District Judge Longley has said in the perjury trial:

"11.   … (In the vice trial) The court found that the five police witnesses for the prosecution did discuss matters of evidence during adjournments despite the express warnings given by the court to each witness.  The court seriously questioned the credibility and eventually ruled that the defendant's husband and other defendants in the previous trial had no case to answer in relation to the charges they faced."

27.  This is a case where, but for the 1^st and 2^nd Respondents, the defendants in the vice trial would in all probability have been convicted on tainted evidence, which would have been a gross miscarriage of justice.  Also, but for these Respondents, two policemen, who have each been convicted and sent to prison, would not have been exposed. 

28.  The authorities[6] show that the power to interfere with the sentence should be used sparingly.  In this case, I do not believe it can be said Wright J had under appreciated the gravity of the 1^st and 2^nd Respondents' conduct.  He made that clear enough in his Reasons for Decision.  I cannot say that his sentence can be regarded as too lenient. 

29.  That is why at the end of the hearing, I agreed that the appeal against sentence should be dismissed.

3^rd Respondent

30.  So far as the 3^rd Respondent is concerned, Mr McCoy SC accepted that the relevant charge is to be found in para.(c) of the originating summons filed on 10 May 2010 which reads:

"(c)   that the 3^rd Respondent be committed to prison and/or fined for contempt of this Honourable Court for assisting the 1^st Respondent to arrange for the transcription and translation into English of audio recordings which he knew was recorded by some MP3 recording device placed by the 1^st Respondent of conversations in a witness room on 8^th Floor of Wanchai Law Courts, Wanchai Tower, 12 Harbour Road, Hong Kong, which is within the precincts of or in face of the District Court, where prosecution witnesses and other police officers in connection with the District Court Criminal Case no. 1280 of 2005 stayed therein during the trial of that criminal case;"

31.  In the course of his submissions, Mr McCoy accepted that, even if the 1^st Respondent had told the 3^rd Respondent that she had earlier covertly taped conversations of police officers (which showed that the police officers had discussed and tailored his/their evidence), whilst they were in a witness room, the 3^rd Respondent, acting as solicitor for her husband, would be acting properly if he caused the tape to be transcribed and translated.  There is no dispute that although such evidence had been obtained improperly, the evidence would have been admissible at the vice trial.

32.  Mr McCoy's complaint is that the 3^rd Respondent had done more than that in that with knowledge of the ongoing tape recording of the evidence, he caused the transcripts to be transcribed and translated[7], thereby encouraging or giving aid or assistance to the ongoing contempt by the 1^st and/or 2^nd respondents.  In fact, Mr McCoy said the 3^rd Respondent was party to and encouraged a continuous course of conduct namely, the taping of the conversation, which is contumelious in that he had aided or assisted in an ongoing contempt.  In Mr McCoy's written submission we were told:

"9.   … The SJ's case is that as early as 16 May 2007, the 1^st Respondent had told the 3^rd Respondent of the covert recording she had carried out and intended to carry on with … 'Today (I) informed Tok Goh (3^rd Respondent) about my audio recording'."

33.  In my opinion, this complaint goes beyond the language of the charge, which charge "is to be treated in a similar manner as an indictment in criminal proceedings having regard to the penal nature of the sanctions for contempt (Grand Union Insurance Co. Ltd v. Clyde & Co. [1988] H.K.C. 464 at 469 per Mayo J.; Aqua-Leisure Industries Inc. v. Aqua Splash Ltd, unrep., HCA No. 18928 of 1998, April 18, 2001, [2001] 1 H.K.L.R.D. D3, [2001] H.K.E.C. 471; Fonfair Co. Ltd v. UDL Management Ltd (unrep., HCA 2002 of 2001) [2006] H.K.E.C. 2150)".  Hong Kong Civil Procedure 2011 Vol. 1 Part A 52/2/6

34.  In any event, the evidence does not support Mr McCoy.  

35.  It will be recalled that the 1^st Respondent's conviction of perjury is not evidence that the 1^st Respondent's evidence given in the voir dire at the vice trial is untrue.  Nor, with respect, am I concerned with the Judge Longley's Reasons for Conviction.  Whilst I am prepared to proceed on the basis that hearsay evidence is admissible in criminal contempt proceedings, I would be slow to give any weight to the 1^st Respondent's log of 16 May 2007.  Moreover, "Today I informed (3^rd Respondent) about my audio recording of 16 May 2007" is equivocal.  I do not read this as saying that the 1^st Respondent had told the 3^rd Respondent not only that she had made recording on 16 May 2007, but that the recording was continuing.  To tell somebody of a recording "of" a particular date is not the same as saying that one had been recording on other dates and that one intended to continue to do so. 

36.  Moreover, it was an agreed fact with the 3^rd Respondent that in the contempt proceedings that:

"(14)    In about May 2007, the 1^st and 3^rd Respondents attended the office of Diners to have some audio recordings on compact discs transcribed.  The 3^rd Respondent (later) learned from the transcripts that the recordings were of the prosecution witnesses improperly discussing evidence in the trial and other matters while inside a witness waiting room.  [Affidavit of Lam Shing Ming dated 19 April, 2010]"

37.  The word "(later)" in the agreed fact was written by hand.  But the significance is that it was an agreed fact that the 3^rd Respondent learned from the transcript "that the recordings were … inside a witness room".  The e-mail quoted in para. 40 below shows that the earliest transcripts were e-mailed to the 3^rd Respondent on 29 May 2007.  It follows that it was agreed that that the 3^rd Respondent learned of such facts no earlier than 29 May 2007.  In other words, since there was no transcript on 16 May 2007, the 3^rd Respondent could not have learned the critical information from the 1^st Respondent on 16 May 2007.

The evidence

38.  The evidence is that some time in May 2007, the 1^st and the 3^rd Respondents visited the office of Diners.  There the 1^st Respondent produced one or two tapes so that they could be transcribed.  It seems clear that the tapes handed over on that occasion are the tapes of 9 and 10 May 2007.  The meeting must have taken place on or before 23 May 2007, because there is a quotation from Diners dated 23 May 2007 to Messrs Anthony Kwan & Co to the attention of the 3^rd Respondent, for transcription of "Two Audio-Recordings from 2 CD-ROMs (approximately 65 minutes in recording time)" for HK$5,800.

39.  After that first occasion, according to Mr Shum Lok-ka of Diners, whose statement to the police of 21 April 2008 was admitted without objection in these proceedings,

"… Miss Ng had come on 2 or 3 occasions to give the CDs and every time, she gave 1 or 2 CDs.  On one occasion, Miss Ng gave Diners a MP3 recorder.  The method of payment is that YIU Muk-tak drew cheques to make payments to Diners, i.e. Anthony Kwan & Co drew cheques to Diners. …

I remember that every time after Miss Ng gave the audio files to Diners, Diners made a first draft of the transcript. Then, Diners send it to Anthony Kwan & Co by fax or email.  After that, Miss Ng came to Diners in person when there were any corrections and gave Diners a fair copy of the transcript.  Sometimes, Anthony Kwan & Co faxed the fair copy of the transcript to Diners.  I remember that on every occasion, YIU Muk-tak or Miss Ng gave opinions on making corrections to the content of the transcripts.  On some occasions, when the audio content was indistinct or the speaker in the recording could not be identified, I usually asked Miss Ng and Miss Ng pointed out to me such remarks was made by which person.  Regarding the content, Miss Ng provided with Diners the content for those indistinct (recordings).  Then, according to the content provided by Miss Ng, Diners decided whether to follow the content provided by Miss Ng or not.  Diners made corrections to the content of the audio CD based on what Diners listened from the audio files in the CD.

I remember that usually Miss Ng came to Diners in person to contact me or I contacted Miss Ng at her mobile phone … through my company's telephone. …

I remember that corrections to the first drafts … (were) written by Miss Ng. …"

40.  On 29 May 2007, an email from Diners to the 3^rd Respondent, stated:

"Here is the Chinese transcript[8] for your review.

We have also faxed you the quotation for the English translation of the attached transcript and will await your confirmation before proceeding with the said English translation."

41.  Given that there is no evidence that the 3^rd Respondent was aware of any recording prior to 16 May 2007[9] (absent any knowledge of ongoing recording), Mr McCoy rightly accepted that by arranging for the 9 and 10 May recording to be transcribed and translated, the 3^rd Respondent could not be said to be guilty of contempt of court.

42.  From the email of 4 July 2007 from Diners to the 3^rd Respondent, it appears that Diners were transcribing two other tapes.  It is not clear but it appears that that they were the tapes of 1 and 7 June 2007.  As I have said there were a total of five tapes and they were dated 9, 10 and 14 May and 1, 7 June 2007.  It is not clear when the tapes of 14 May, 1 June and 7 June were given to Diners.  The May14 tape was first mentioned in an invoice dated 31 August 2007.  It appeared from the statement of Mr Shum quoted in para. 39 above that it was the 1^st Respondent who handed over these tapes.  There was no evidence that prior to their being handed over, the 3^rd Respondent was aware of their existence. 

43.  I do not believe the above evidence is sufficient to show beyond reasonable doubt that the 3^rd Respondent had encouraged or was party to the recording by the 1^st Respondent.  Nor, as I have said, was that the charge against the 3^rd Respondent.

44.  Wright J dealt with the 3^rd Respondent briefly in his judgment:

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

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

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

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

45.  The judgment is silent on when the 3^rd Respondent was supposed to have become aware of the "provenance of the recordings". 

46.  It is not clear what Wright J meant when he said that the judge (in the vice trial) "be informed of the position expeditiously".  I do not know if Wright J implied that the lawyers would have been obliged to inform the Judge of the contempt of court.  Given legal professional privilege ("LPP"), I do not believe the lawyers would be entitled to inform the judge.  I believe if lawyers were informed by a client that the client was taping conversation of prosecution witnesses, the lawyers should advise the client to stop immediately.  But without a waiver of LPP by the client the lawyers would not be entitled to inform the prosecution or the Judge of that fact.  Should the client refuse to accept the lawyers' advice, I believe the lawyers may properly refuse to continue to act.  Even so the lawyers would not be entitled to divulge the reason for their refusal to continue to act to anybody unless that person would also be bound by legal professional privilege (for example, the Director of Legal Aid).  The situation is analogous to a client confessing his guilt to his lawyers in the course of a trial. 

47.  I can see no reason why when the lawyers were told of the tapes sometime before December 2007 they should not use the tapes to the best advantage of their clients.  But that is not something I need to decide.

48.  For the above reasons, I would also dismiss the appeal against the 3^rd Respondent and make an order nisi that the Secretary of Justice pays the 3^rd Respondent's costs of the appeal to be taxed unless agreed.

Hon Stock VP:

49.  I agree with the decision to dismiss the appeals against sentences and I agree with Tang VP that the appeal against the conviction of the 3^rd Respondent should also be dismissed.

Sentence

50.  The judge in the court below was faced with a difficult sentencing exercise.

51.  On the one hand, the activity of the 1^st and 2^nd Respondents in recording conversations in a witness room in the court building, a room known by them to be used by those giving evidence in ongoing proceedings and which was or ought to have been known by them to be available for use by personnel connected with other proceedings, was clearly contumelious conduct.  It was contumelious because it was calculated to interfere with the due administration of justice as a continuing process in that it invaded the privacy of communications which witnesses and others using a witness or consultation room in a court building must be able to expect.  The judge well explained why confidence in that privacy is important:

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

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

And conduct calculated thus to interfere with the administration of justice calls, save in exceptional circumstances, for a term of imprisonment, immediately effective.

52.  On the other hand, the 1^st Respondent had in fact heard a conversation which gave her sound cause to believe that the police witnesses were intent on “nailing” her husband which, she assumed, meant “nailing” him by hook or by crook; and she turned out to be correct.  What else, the question might be asked by the man in the street, is a wife in such circumstances to do?

53.  As against that, the judge was no doubt concerned not to give a green light to persons who suspect something amiss in the intention of parties to, or witnesses in, a case to take matters into their own hands and eavesdrop on witness conversations.  To give a green light would be to open a Pandora’s box, to invite invasion of privacy by those who nurture suspicion even on flimsy ground; by those who merely say, perhaps truthfully, perhaps not, that they suspect wrongdoing; by those who would intrude upon a private family conversation in, say, a custody case or upon a privileged conversation or upon a discussion about police operational matters, and upon witnesses for the defence as well as for the prosecution; and in that box we would also find conversations not targeted by the eavesdropper. The line must drawn and it is drawn by a prohibition on any such activity save where authorised by an order of a court.

54.  What the judge did was to strike a balance between these contending factors, to mark the fact and length of the contempt by imposing a term of imprisonment but to suspend it in recognition of the unusual facts of the case and of the fact that there had been no such previous case and at the same time to provide a warning ( para 36 Judgment, 23 December 2010), which I endorse, that “ the consequences of any repetition of [this form of contempt] are now made clear” namely, “that conduct of this nature would result in a robust reaction from the court.  There were other avenues open to the respondents from the outset: they made a conscious decision not to follow them but to embark upon their own course.  Others who may be tempted to emulate their actions need to be in no doubt that imprisonment will follow conviction.”(para 30; emphasis added).

55.  Sentencing is an art, no less in contempt cases than in others ,and in my opinion it cannot possibly be said that the judge – having provided the warning which he did – took a course outwith the range reasonably permitted by the unusual circumstances of the case.

56.  To the question what else in the circumstances was a person in the 1^st respondent’s position to do, the suggestion has been made that she should have reported the matter to the police.  In the circumstances of this case, it is perhaps understandable why she did not do so.  What a person in such a situation is to do is to draw the matter at once to the attention of those acting for the defendant and to refrain from taking matters into his or her own hands.  It is then incumbent upon the solicitors acting for the defendant to draw the matter to the attention of counsel who might, assuming the client’s consent, make an appropriate application to the court to authorize surveillance or report the matter to a law enforcement investigating authority.  Where a defendant is unrepresented, a report should be made to the Complaints Against Police Office or to the Independent Commission against Corruption, either of which should then ensure that immediate legal advice is secured and that counsel for the prosecution is informed.

57.  It might well therefore be said in this case in the 1^st respondent’s favour that she took the right course in informing the solicitor’s clerk.  What advice he provided, we simply do not know.  That said, the judge took a sterner view of her conduct than otherwise he might because she had damning evidence against the police witnesses within three days of starting to record yet continued recording for a four-month period, deliberately refraining from disclosing what she was doing to her husband’s counsel for fear that she would be told to stop, a clear indication, he found, of her own knowledge of the wrongfulness of her conduct.

Acquittal of the 3^rd Respondent

58.  I agree with Tang VP that the appeal in respect of the acquittal of the 3^rd respondent should be dismissed.

59.  I was, until the second day of the hearing of the appeal, under the misapprehension that the evidence was that the 3^rd Respondent was party to transcriptions of recordings throughout the charge period, in other words between 7 May and 7 September 2007.  Had that been the evidence, one can well see how a case could be mounted that by his conduct in accepting recordings for transcription purposes, the 3^rd respondent encouraged and was thereby party to continued contumelious recordings in the witness room by the other respondents.

60.  But it transpired that that was not the evidence.  The evidence was that the transcriptions with which the case against him was concerned related only to recordings made on 9 May, 10 May, 14 May, 1 June and 7 June and that he only became aware of the fact of recordings after the first three of these occasions.  In such circumstances, he could hardly be said to have encouraged those first three.  Similarly, there was no evidence that at the end of May 2007 when he accepted the first three for transcription that he knew there were to be more; so there was not enough from which to conclude that he encouraged the recordings of 1 and 7 June.  And that, so far as I am concerned, concludes the matter.

61.  This is not to say that conduct in transcribing recordings illicitly made could never constitute the person securing the transcriptions party to the contempt.  Such a person may well be guilty of contempt if by his conduct he encourages continuing contumelious conduct.

62.  I have also to say that the basis upon which Mr McCoy advanced the Secretary for Justice’s case in the course of his arguments before us, namely, conduct by the 3^rd respondent encouraging the other respondents to continue recording, does not appear either from the charge, or from written submissions made in the court below, or from the judgment of Wright J.  The charge itself concentrates on the act of transcription and translation and it was not alleged either in the charge or by reason of any particulars provided thereafter that the allegation was that the 3^rd respondent was by his act party to the illicit recordings.

Warnings to witnesses

63.  There is no rule of law which of itself precludes a witness from discussing the case with others, either before, during or after he has testified.  There is however a rule which requires that directions of a court be obeyed and it must be understood that breach of a direction to a witness not to discuss the case with others is a contempt of court, punishable in the same way as any other contempt.  If authority be needed for such a proposition see R v Jakes [2007] Crim L R 800; and R v Elliott and Dawkins [2008] EWCA Crim 2479 para 21.

64.  A practice has for long existed in our courts of requesting or directing witnesses not to talk to others about their testimony and it may be that the frequency or perhaps the loose or varied terms used by the courts has encouraged some not to take a direction to that effect seriously enough.  Whether to give such a direction and the terms to be used in conveying the message is a matter for the tribunal, depending on the type of witness and all the circumstances.  It may be for example that with a vulnerable witness, the terms of the court’s stricture – if one is conveyed at all – will be moulded in more sensitive terms than in the case of accomplices or of seasoned witnesses such as police officers.  And it may be that it is not necessary to give such a warning or direction at all: an obvious example is the case of an expert witness whose testimony is not subject to questions of accurate recollection or attacks on credibility.

65.  But there will be instances where the court deems it important that there be no discussion by the witness with others about his testimony and about what has transpired in court.  In such a case the court should make it clear that its stricture is a direction, not a request.

66.  It must be understood that a direction of this kind when given, is given, not as a matter of form or quaint usage, but for a purpose important to the administration of justice, namely, that the reliability of testimony may the more accurately be assessed.  The reliability of testimony is not necessarily determined by an exact alignment of the evidence of two witnesses and the honest witness will not seek that comfort by talking to another witness.  What an honest witness will do is to testify according to the best of his or her recollection.  No more and no less is required.  It is in an attempt to ensure that the integrity of testimony is not assailed, consciously or subconsciously, and that reliability of evidence may be gleaned by the tribunal of fact, that such directions are imparted.  So it is a serious matter.  If there transpires in any particular case a need, commensurate with the interests of justice or for some unusual operational reason, for a witness to discuss his testimony, then in the face of such a direction, he or she should seek leave, through counsel, to be permitted to do so.  Otherwise he or she breaches a direction of the court.  This judgment serves notice that breach of such a direction is a contempt of court which will be treated seriously.

Hon Fok JA:

67.  I have had the advantage of reading in draft the judgments of Tang VP and Stock VP. 

68.  I concur in the reasons given in both judgments for the dismissal of the appeals of the 1st and 2nd respondents against sentence.  I have no doubt the taping of the conversations in the witness room in this case amounted to a serious interference in the administration of justice by the 1st and 2nd respondents.  It seems to me that the Judge recognised the seriousness of the contempt by imposing a custodial sentence but adequately explained his reasons for suspending those sentences in this highly unusual case.

69.  So far as the appeal in respect of the 3rd respondent is concerned, I also agree with Tang VP that the appeal in respect of his acquittal should be dismissed for the reasons he gives.

70.  The comments at the conclusion of Stock VP's judgment are, in my view, timely and serve usefully to remind court users of the practical reasons why warnings to witnesses are important and to be heeded.