HKSAR v. TONG MAN CHOI, ISAIAH

[English Translation - 英譯本]

HCMA 225/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 225 OF 2014

(ON APPEAL FROM KCCC 3244 OF 2013)

____________________

______________________

J U D G M E N T

1.  The appellant was charged with one offence of “doing acts tending and intended to pervert the course of public justice” (called “perverting the course of public justice” in short), contrary to Common Law.  The appellant pleaded not guilty and was convicted after trial and put under a community service order for 160 hours by Deputy Magistrate Mr Chu Chung Keung (as he then was) before Kowloon City Magistrates’ Court.  The appellant appeals against the conviction. 

Particulars put forward by the prosecution

2.  The particulars of the offence alleged that the appellant:

“… between the 12^th of March 2012 and about 12^th day of July 2012, 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 [the appellant] failed to prosecute a case of storing dangerous goods without a licence that was committed on the 12^th day of March 2012 at the basement of World Finance Centre (North Tower), Nos. 17-19 Canton Road, Kowloon, Hong Kong and concealed the commission of the said offence.”

Prosecution case

3.  The appellant is a Senior Station Officer.  On 12 March 2012, he was assigned by his superior to handle a complaint about fire hazard at Harbour City.  Upon arriving at Harbour City, the appellant carried out inspection in the company of Tsang Hing Cheung who was a staff member of Harbour City Estate Limited (PW2), and two other staff members.  A total of 44 cylinders were found at the pipe duct room inside the main switch room at the basement of World Finance Centre (North Tower) (hereinafter called the Building) of Harbour City. The appellant asked Mr Tsang what kind of cylinders they were.  Mr Tsang said “BTM” (ie bromotrifluoromethane) in reply.  Among those 44 cylinders, 43 bore the label of BTM.  Before finding those cylinders, the appellant had asked Mr Tsang if BTM was used for extinguishing fire, and the latter replied by saying that CO₂ but not BTM was used for such purpose.

4.  The prosecution alleged that according to the Dangerous Goods (Application and Exemption) Regulations, Cap 295A of Laws of Hong Kong, BTM was classified as dangerous goods —— liquefied gas which was Class 2 under Category 2.  Pursuant to Dangerous Goods (General) Regulations, Cap 295B of Laws of Hong Kong, the maximum quantity for storage of BTM with no licence was two cylinders.  Pursuant to sections 6 and 14 of the Dangerous Goods Ordinance, Cap 295, over-storage of BTM shall be guilty of an offence.

5.  It was the prosecution’s allegation that the appellant at the material time (ie at the time when BTM cylinders were found on 12 March 2012), knew that, at Harbour City, CO₂, instead of BTM, was used for extinguishing fire.  Upon finding those many BTM cylinders, the appellant should, while reasonably suspected that the Dangerous Goods Ordinance had been contravened, collect evidence (ie including taking photographs, drawing sketches, taking samples and administering caution on the person-in-charge and so on).  The appellant had at the scene taken photographs of the cylinders, but he only demanded Mr Tsang to arrange with the fire service maintenance contractor to remove the cylinders on the following day (ie 13 March 2013).  He also told Mr Tsang that it would be most desirable to explicitly mark the cylinders as “empty cylinder”.  Before leaving the scene, the appellant did not seize any cylinder or caution any person. 

6.  On 13 March 2012, Mr Tsang received the appellant’s call which asked about the progress of removing all those 44 cylinders.  Mr Tsang told him that the matter was the responsibility of his superior Mak Sai Lam (PW4).  The appellant later called Mr Mak, indicating that the matter had been “revealed on the newspapers”, and the cylinders must be removed immediately.  The appellant said that “in any event it would be over after the removal completes” and another fire officer would “soon” come.

7.  Leung Yau Shing, Senior Station Officer (PW5) on instruction proceeded to Harbour City to handle a complaint.  On seeing Mr Leung come for inspection, Mr Tsang called the appellant.  The appellant directed Mr Tsang to claim that those 44 cylinders had been moved to the pipe duct room from somewhere else.  Mr Tsang and Mr Mak discussed and decided to tell the truth.  On seeing some people removing the BTM cylinders, Mr Leung immediately directed Mr Mak to stop the removal.  Mr Leung said he had reason to suspect that someone had breached the Dangerous Goods Ordinance by storing excessive dangerous goods.  Mr Leung collected evidence at the scene, including drawing a sketch, taking photographs, seizing ten cylinders (nine BTM cylinders and one cylinder of oxygen) and taking records of the interview with the persons-in-charge.

8.  Subsequently, on 31 July 2012, he took samples from three out of those nine BTM cylinders with the assistance of Dr Leung Hiu Chi, Government Chemist (PW6).

9.  Dr Leung conducted chemical analysis on the samples that she had taken and after that also compiled a Government Chemist Certificate (prosecution exhibit P29).  Dr Leung classified the three samples as BTM, belonging to Category 2 Class 2, namely “liquefied gas” within the meaning of “compressed gases”.

10.  As to the inspection conducted by the appellant at Harbour City on 12 March 2012, he completed a “Fire Services Department Dangerous Goods Complaint Inspection Report” (prosecution exhibit P1) on 15 March 2012.  Under the column “statement of fact”, the appellant claimed that no BTM was noted during his inspection, and the photographs attached to the report showed only the main switch room at the basement of the Building but not the pipe duct room where the 44 cylinders were found.

11.  On the other hand, the prosecution evidence included the following:

(a)  Liu Cheuk Fan, Senior Division Officer, Licensing and Dangerous Goods Division of the Fire Services Department (PW9) said that the appellant had to take enforcement action and collect evidence in accordance with a set of internal guidelines named Fire Protection Commands Procedural Instructions [CPI (FP)] (prosecution exhibit P32).  The inspecting officer had to strictly comply with the guidelines.  When excessive dangerous goods were found, the inspecting officer was in no discretion not to follow up. 

(b)  Mr Liu agreed that Category 2 dangerous goods included CO₂, which was subject to no limit if itwas for fire extinguishment, otherwise the quantity for storage must not exceed one cylinder.  Mr Liu said that the enforcement criteria applicable to BTM and CO₂were the same.

(c)  According to Mr Leung, licence was exempted for storage of not more than two cylinders of BTM.

(d)  Mr Wong Hing, Assistant Divisional Officer of the Fire Services Department (PW7) believed the report completed by the appellant (prosecution exhibit P1) to be true and countersigned on it.  He proved that the incident in question was the first time that the appellant handled a complaint about BTM or dangerous goods of this kind.

12.  It was the prosecution’s position that the appellant failed to bring prosecution when he had reasonable suspicion of breach of law, and he even advised the Harbour City staff to claim that the BTM cylinders had been moved to the pipe duct room from somewhere else.  The Government Chemist Certificate (prosecution exhibit P29) proved that BTM was inside the cylinders, which was Class 2 dangerous goods under Category 2.  The appellant has committed the offence of perverting the course of public justice.

Defence case

13.  The appellant elected not to give evidence or call any witness.

14.  It was admitted by both parties that the appellant had attended training courses on how to handle complaints about dangerous goods (prosecution exhibits P35 and P36) on 19 and 20 November 2009.

15.  The defence position was that the Government Chemist Certificate (prosecution exhibit P29) constituted only prima facie evidence, and there was no evidence that BTM was a compressed gas, and therefore no proof that the BTM in question was “dangerous goods”.  Furthermore, BTM as a fire extinguishing agent may be recycled, and hence there was nothing wrong for the appellant to ask the person-in-charge of Harbour City to remove the BTM cylinders.

16.  Basically the defence suggested that the prosecution had failed to prove its case.

Magistrate’s findings

17.  After analyzing the evidence and the appellant’s series of acts, the magistrate found that the BTM cylinders in question were dangerous goods within the meaning in the legislation.  Looking at all the evidence as a whole, the appellant, while knowing full well of the storage of dangerous goods, with the intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice, failed to bring prosecution and concealed the offence.

Grounds of appeal

18.  Mr Douglas Kwok, counsel for the appellant has put forward two grounds of appeal to support the contention that the conviction is unsafe and unsatisfactory:

(1)  he magistrate has, failing to do his own interpretation to determine if BTM was dangerous goods and the lawful quantity, erred in taking the witnesses’ evidence as the basis to make his findings, which is wrong in law.

(2)  The magistrate has erred in finding the prosecution had proved all elements of the charge concerned, in particular the actus reus of the offence.

19.  In respect of the first ground of appeal, Mr Kwok submits  that the prosecution has to prove that the BTM in question is a “liquefied gas under compressed gases” before it can be classified as “dangerous goods” and further considered if the quantity stored has exceeded the statutory storage limit.

20.  Mr Kwok says that the evidence given by the Government Chemist Dr Leung has not shown that the BTM in question is a compressed gas.  She is an expert in chemistry but in no position to interpret the law.  Even if she has matched up what was found in her chemical analysis with the chemical names and elements laid down in the ordinance, it is after all just her “unprofessional judgment” on legal issues.  After hearing Dr Leung’s evidence, the magistrate first found that the BTM in question belonged to a “liquefied gas under compressed gases”, and further confirmed his judgment with Dr Leung’s evidence which was, as far as the prosecution’s onus of proof was concerned, putting the cart before the horse, thereby making an error in law.

21.  Mr Kwok contends that the magistrate has erred in law by accepting Dr Leung’s certificate (prosecution exhibit P29) as an independent proof that BTM is “dangerous goods”. The certificate concerned can only be the prima facie evidence to prove that the samples undergone chemical analysis were BTM but cannot prove that BTM fell within the definition of “dangerous goods” in law.

22.  Mr Kwok also says that Senior Station Officer Leung was not an expert witness, and hence the magistrate should not have accorded any weight on this witness’ evidence of finding the cylinders containing compressed gas which belonged to Class 2 dangerous goods.

23.  The appellant contends that the statutory storage limit for BTM is a question of law, and the magistrate should make his own interpretation of the documents of the Fire Services Departments from a legal perspective.  Prosecution exhibit P34 proves that there is no limit on the storage quantity for CO₂ if it is for extinguishing fire, and the enforcement criteria for BTM and CO₂ are the same.  If the BTM had been purchased for the purpose of extinguishing fire, then even if, as Mr Tsang had testified, BTM was no longer used for extinguishing fire, the “original purpose” of BTM was not affected, and hence BTM and CO₂ might be the same in the sense that there was no limit on the maximum storage quantity.  The magistrate should have made his own findings basing on the law.        

24.  Mr Kwok submits that the prosecution evidence seemed to have relied on Cap 295E, Laws of Hong Kong which had yet come into effect to allege that the appellant had failed to enforce the law.

25.  In respect of the second ground of appeal, Mr Kwok refers to Archbold at para 30-2, contending that among the four requisite elements[1] of the offence in question, the prosecution has failed to prove the following three elements beyond reasonable doubt:

(1)     The appellant’s acts do not necessarily constitute a contravention of the law.  Mr Kwok relies on the argument which has already been mentioned in the first ground of appeal, namely: the prosecution has failed to prove that the BTM in question is “dangerous goods” and that the quantity stored has exceeded the statutory limit, and therefore the appellant has concealed no “offence”.  The appellant could not have possibly obstructed the enforcement of law against such “non-existing offence”.  Mr Kwok also refers to para 30-9 in Archhold, saying that the prosecution has to prove that there was no room for the appellant to exercise discretion and that the appellant knew he had no discretion to act as he did, both of which were not considered by the magistrate.

(2)     The appellant’s series of acts was carried out pursuant to the guidelines in the official circular letter of the Fire Services Department on disposing abandoned fire extinguishers as chemical waste.  The appellant’s acts could not possibly have the tendency to pervert the course of public justice. Even if he had concealed the existence/location of the chemical waste or had asked Mr Tsang to describe the chemical waste as “empty cylinder” in the course of removal, it was at most a failure to report the truth as required but there could not possibly be the tendency to pervert the course of public justice.

(3)     The prosecution, in order to establish the appellant’s mens rea, has to prove that the defendant must have known or contemplated the possibility of curial proceedings when doing the series of acts.  Mr Kwok suggested that when the appellant did the series of acts, he might think that the BTM was chemical waste and hence merely followed the guidelines and told the person-in-charge to remove them.  Since there was such possibility, the prosecution has not discharged its burden of proof.

26.  Mr Kwok says that in the halfway submission he did put forward the main points mentioned in the present appeal hearing before the magistrate, but only some of them were dealt with and the magistrate did not properly consider those main points submitted at that stage.

My consideration

27.  A magistracy appeal is a “rehearing” on the evidence before the trial magistrate supplemented by such further evidence as the appellate court may admit: see Chou Shih Bin v HKSAR [2]. In my view, regarding the facts of the case, it must be acknowledged that a magistrate has the advantage of hearing and watching witnesses giving evidence in court, and the appellate court cannot determine the credibility and reliability of witnesses by relying on the written transcripts: see Raymond Chen v HKSAR  [3]. The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  Where the findings of facts by the magistrate are shown to be unreasonable or illogical, or inherently improbable; or that the magistrate has misquoted, or omitted, or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

Elements of the offence

28.  The offence of “doing acts tending and intended to pervert the course of public justice” is committed where a person (a) acts or embarks upon a course of conduct; (b) which has a tendency to; and (c) is intended to pervert; (d) the course of public justice. [4]

29.  In the present case, a very important issue is whether the BTM in question is “dangerous goods”?  If it is, has the quantity stored gone far beyond the statutory storage limit?

Is the BTM in question “dangerous goods”?

30.  According to section 2 of the Dangerous Goods Ordinance, “dangerous goods” is defined as any of the goods or substances to which this Ordinance applies under section 3 which states:-

“This Ordinance shall apply to all explosives, compressed gases, petroleum and other substances giving off inflammable vapours, substances giving off poisonous gas or vapour, corrosive substances, substances which become dangerous by interaction with water or air, substances liable to spontaneous combustion or of a readily combustible nature, radioactive material and to such substances to which it is applied by the Chief Executive in Council under section 5…”

31.  Regulation 3(3) of the Dangerous Goods (Application and Exemption) Regulations, Cap 295A of the Subsidiary Legislation of Hong Kong provides that:-

“Except as provided in this regulation, all dangerous goods are exempt from the application of the Ordinance.”

32.  It is expressly set out in the Schedule in the Dangerous Goods (Application and Exemption) Regulations, Cap 295A that Category 2 is “compressed gases”, which is further divided into three classes, namely “permanent gases”, “liquefied gases” and “dissolved gases”.  BTM is not on the list of liquefied gases set out in Category 2 Class 2.  However, it is specified in the Schedule that “any other liquefied gas not above specified” is also included.

33.  The prosecution has to prove that the BTM in question is a liquefied gas under compressed gases before it can be classified as “dangerous goods”, and then it would be further considered and decided if the quantity stored in question has gone beyond the statutory limit for storage.

34.  Mr Kwok has referred to the transcripts of the trial, indicating that the Government Chemist Dr Leung in her testimony did not say that the BTM in question was a compressed gas (appeal bundle pp 204-211).  Having read Dr Leung’s evidence in detail, I do not agree with Mr Kwok’s submissions.  First, according to Dr Leung, she was the person who took “gas” samples on 31 July 2012 (appeal bundle, p 206T).  The gas samples were listed as exhibits.  After chemical analysis, she came to know that there was BTM in the cylinders (appeal bundle, p 207S).  She immediately pointed out that the BTM concerned belonged to “Dangerous Goods (Application and Exemption) Ordinance, 295A” and “belonged to Category 2 —— Class 2 dangerous goods, ie a liquefied gas within the compressed gases category”.  Afterwards, Dr Leung also compiled a Government Chemist Certificate (prosecution exhibit P29).  Although it was not mentioned in Dr Leung’s certificate that BTM was a compressed gas, page 2 of the certificate has clearly set out that it was classified as Category 2 Class 2.

35.  I do not agree that Dr Leung was interpreting the law.  It was not for her to determine if the BTM in question was “dangerous goods”, however, with her expertise, she was absolutely in the position to point out as an expert which gas in the legislation that the gas in question belonged to.

36.  Having regard to the fact that it was the first time Dr Leung testified in court and after reading the information that she had set out in the certificate in context, I find that she was obviously saying that the gas that she had taken out from the cylinders was a compressed gas, which was proved to be BTM upon chemical analysis.  BTM is in general stored in liquid form, and the BTM in the cylinders was therefore a liquefied gas which is a compressed gas.

37.  What Dr Leung’s certificate contains is prima facie evidence (section 25 of the Evidence Ordinance, Cap 8 of Law of Hong Kong), and there is no contrary evidence in the present case to suggest that Dr Leung’s test results were wrong.

38.  On the other hand, it made sense that Mr Leung who assisted Dr Leung in taking samples was able to see that what was taken out from the cylinders was compressed gas.  I do not agree with the appellant’s submissions that the magistrate should not have accorded any weight on Mr Leung’s evidence.

39.  The magistrate has correctly found the BTM in question be “dangerous goods”. I have arrived at the same conclusion in the rehearing in the appeal.

40.  In respect of the storage quantity, the “table” in regulation 74 of the Dangerous Goods (General) Regulations, Cap 295B has set out the licence-exempt quantity for Class 2 “liquefied gases”, which inter alia states that the quantity for exemption in respect of carbon dioxide (CO₂) is “1 cylinder (unlimited when intended for use with fire extinguishers)”.  BTM is not in the table.  If BTM is used for extinguishing fire, it may be said that BTM is the same as CO₂, in that the quantity for storage is “unlimited when intended for use with fire extinguishers”.  However, when it is not used as fire extinguishers, the storage limit should be the same as that of CO₂, which is “1 cylinder”.

41.  The problem is that in the present case, there is simply no evidence to show or support that the BTM in question was used as fire extinguishers.  On the contrary, before the BTM in question was found, Mr Tsang had already told the appellant that CO₂ but not BTM was used for fire extinguishment in Harbour City.  The appellant, when finding the BTM in question, had no basis to think that those cylinders were to be used for extinguishing fire and thus had no storage limit.  Moreover, the appellant’s act of directing Mr Tsang to remove the BTM cylinders in question as soon as possible clearly showed that he did not think that the BTM in question were to be used as fire extinguishers and hence had no restriction on the storage quantity.

42.  The appellant has asserted that Mr Tsang under cross-examination indicated that to his knowledge, Harbour City had used BTM for extinguishing fire ten to twenty years ago, and throughout these years there had been “retrofit and renovation” and substitution of BTM by CO₂, and he in fact did not know “if there were still some BTM being used as fire extinguishing media, ie, not everything has been retrofitted” (appeal bundle, p 187G-J), but as I have already adverted, before the BTM was found out, Mr Tsang had told the appellant that CO₂ was used for extinguishing fire in Harbour City, and the appellant’s acts after finding out BTM did not show he believed the BTM in question was used for extinguishing fire, nor was there any reason for him to believe that the BTM in question was for extinguishing fire.

43.  On the evidence of the present case, the BTM in question was not used for extinguishing fire, and hence pursuant to the legislation, apparently the exempt-quantity should be the same as that of CO₂: one cylinder.  

44.  There were up to 43 cylinders of BTM in question, which must have exceeded the statutory limit for storage.  Although Mr Liu and Mr Leung were inconsistent in whether the limit was one or two cylinders, so far as the present case is concerned, their difference was immaterial because 43 cylinders of BTM has gone far beyond the statutory storage limit.

45.  In the light of the above reason, the first ground of appeal fails.

46.  As the respondent has pointed out, the appellant on finding 44 cylinders (43 cylinders of BTM and one cylinder of oxygen) in the pipe duct room, which has already constituted reasonable suspicion of contravention of law, should bring prosecution.  However, he not only failed to collect any evidence, but also advised the Harbour City staff to move them away as soon as possible and even wrote on the inspection report (prosecution exhibit P1) that no BTM had been noted.  He did not report that “the final inspection location” was the pipe duct room.  On the following day, another Senior Station Officer Mr Leung went there for investigation and found that those BTM cylinders were being removed.  Mr Leung followed the internal guidelines and made record, took photographs, marked down locations, drew a sketch and took samples for the purpose of prosecution.  What Mr Leung did is sufficient to show that their objective of enforcement is clear and the so-called “room for discretion” suggested by the appellant simply does not exist at all.  Nowhere in the witnesses’ testimonies and the internal guidelines (prosecution exhibit P32) or training materials (prosecution exhibits P35 and P36) produced in court ever states that fire services officers on duty have a discretion not to enforce law, may trickily report that in only a particular location there is no dangerous goods in contravention of the law, may choose not to make a full record/report of the locations inspected, may take photographs of the scene selectively or on the pretext, or may influence the witnesses’ in their clearance of illegal dangerous goods.     

47.  I agree with the respondent’s submissions that in respect of the same complaint and the same type of cylinders, Mr Leung’s positive and the appellant’s lack of enforcement action make a big contrast.  Nothing whatsoever in the background of the offence and the actual situation gave rise to any room for any discretion to justify the appellant’s act.  The appellant committed the offence in the present case when he failed to bring prosecution while having reasonable suspicion of contravention of the law.  The appellant even called Harbour City staff, advising them to claim that the BTM had been moved to the pipe duct room from somewhere else.  It shows that he made things more conspicuous by trying to cover them up.

48.  As to the suggestion that the appellant might have relied on the Fire Services Department Circular Letter No. 1/2011 (defence exhibit D1(4)), which states: “all unwanted fire extinguishers containing scheduled substances requiring disposal are classified as chemical waste and should be disposed of at a licensed facility”.  My views are as follows.  First, there is no evidence that the appellant had this in mind.  The magistrate could not, nor can I, speculate.  Furthermore, if the appellant really “thought” that the BTM that he was then handling was “unwanted fire extinguishers” and hence required Mr Tsang to arrange with the contractor for removal, he would have written down in the report (prosecution exhibit P1) that he had noted BTM cylinders which were thought to be “unwanted fire extinguishers” and thus requested the person-in-charge to arrange with the licence holder for removal.  The appellant not only failed to do so, but on the contrary put down in the report that no BTM had been noted and even made no mention of the pipe duct room.  Moreover, while having no idea if the BTM cylinders in question were “empty”, he had no reason to request Mr Tsang to say that they were “empty cylinders”.

49.  I also do not agree with the appellant’s suggestion that the prosecution seemed to have relied on Cap 295E which had yet come into effect.

50.  I have pointed out that the BTM in question is “dangerous goods” and the quantity stored in the case must have far exceeded the statutory storage limit.  The appellant’s series of acts was that he while having reasonable suspicion of contravention of the law, failed to act accordingly by collecting evidence and bringing prosecution and concealed the contravention instead.

51.  The appellant has referred to para 30-9 in Archbold, contending that the prosecution must prove there was no room for the exercise of discretion by the appellant, and also the appellant knew he had no discretion to act as he did. Para 30-9 states:

“However, mere failure on the part of a police officer to pursue a matter with a view to prosecution is not necessarily an offence. There is an undoubted discretion in a police officer not to pursue a matter although there is clear evidence of an offence having been committed. This is certainly so in trivial cases, such as riding a bicycle at night without lights or failing to produce a driving licence on demand. However, whether a discretion existed in any particular case is eminently a matter for a jury to decide. For a police officer to be convicted of an offence of conduct tending and intended to pervert the course of justice, it must be proved not only that there was no room for the exercise of discretion on the particular facts, but also that the defendant knew that he had no discretion to act as he did: R v Coxhead [1986] RTR 411”

52.  First, the appellant is not a police officer, and it cannot be said that he undoubtedly had discretion.  Further, no room was allowed for discretion in view of the witnesses’ evidence and exhibits.  The appellant’s series of acts of concealing the contravention of law provides absolutely no support to his purported exercise of discretion.

53.  All in all, the appellant, while knowing full well that he had reason to believe that contravention of the law (namely over-storage of dangerous goods) had taken place and that he had to collect evidence to bring prosecution, not only failed to follow the proper procedures to do so, but on the contrary concealed the facts, made a false record in the report (prosecution exhibit P1) that no BTM had been noted and brought no prosecution.  His acts did have the tendency to pervert the course of public justice.  As a result of the appellant‘s acts, there is reasonable belief that a person who had contravened the law was saved from being prosecuted and facing curial proceedings.  In my view, even if it appears that the person who has contravened the law may be acquitted after prosecution, it does not mean that the person who does not bring prosecution, like the appellant, does not commit the offence of perverting the course of public justice.

54.  The appellant elected not to testify.  The magistrate simply did not have to think out various possible defences.  The appellant is the only one who can tell what was in his mind at the material time.

55.  I do not accept that the appellant might be “dealing with waste”.  As I have pointed out, if that was the case, there would just be no need for him to make a false record in the report that no BTM had been noted.  I also do not agree with the appellant that the appellant at the most has simply failed to report the truth as required by concealing the existence of the BTM and the location where they were found, requesting Mr Tsang to claim that the BTM were “empty cylinders” during the removal, and so on.

56.  In view of the undisputed facts in the present case, I find that the only irresistible reasonable inference to be drawn is that the appellant while doing the series of acts must have known or contemplated the possibility of curial proceedings.

57.  I find that the prosecution has successfully proved all elements of the offence of perverting the course of public justice, and the second ground of appeal fails.

Conclusion

58.  In the light of the above reasons, the conviction is not unsafe or unsatisfactory.  Basing on the evidence in the present case, I will also convict the appellant.  The appeal against conviction is dismissed.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Patrick W.S. Cheung, Barrister-at-law.

[1] Original text: “The offence is committed where a person or persons:

(a) acts or embarks upon a course of conduct;

(b) which has a tendency to; and

(c) is intended to pervert;

(d) the course of public justice.” 

[2] Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70

[3] Raymond Chen v HKSAR(2010) 13 HKCFAR 728

[4] See Note 1 above