CHONG CHOONG LEONG v. HKSAR

FAMC No. 48 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 48 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 258 OF 2013)

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REASONS  FOR  DETERMINATION

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Mr Justice Fok PJ:

1.  At the conclusion of the hearing, we dismissed this application for leave to appeal with reasons to be provided later.  These are our reasons.

2.  The applicant was convicted in the Magistracy[1] of one charge of doing an act tending and intended to pervert the course of justice and sentenced to 18 months’ imprisonment.  His appeal to the Court of First Instance[2] was dismissed.

3.  The applicant applied for leave to appeal to this court on the ground that a grave and substantial injustice had been done.

4.  The prosecution case, in summary, was that the applicant had made telephone calls and sent text messages to PW1 which had a tendency to pervert the course of justice in that they were intended to influence PW1 in the evidence he was due to give as a prosecution witness in a District Court criminal trial.

5.  There was an issue at trial as regards the words used by the applicant in one of those phone calls, specifically whether the applicant referred to the Chinese Ministry of State Security (in Chinese 國安局) or the State Administration of Foreign Exchange (in Chinese 外管局).  The applicant’s evidence was that the conversation was in English but the institution referred to by the applicant was described by him using Putonghua.  The applicant denied mentioning國安局 and, after persistent cross-examination, PW1 (who gave his evidence in Punti) maintained that according to his recollection it was the Ministry of State Security “but I might have misheard, I don’t know”.

6.  The Magistrate did not accept that PW1 might have misheard.  In her findings, she drew attention to the difference between the two tones of the words 安 (“an”) and 管 (“guan”) and said that “[t]o a Putonghua speaking person, the two tones are so different that it was impossible to make a mistake”.[3]

7.  Mr Gerard McCoy SC, for the applicant, contended that the Magistrate (and Judge in upholding the conviction) erred in assuming that either or each of the applicant and PW1 was a Putonghua speaking person and also in assuming that it was impossible to have misheard the Chinese characters for State Administration of Foreign Exchange for Ministry of State Security.  It was suggested there was no evidential foundation for these assumptions and so a departure from an accepted norm.  Given PW1’s evidence that he might have misheard, the Magistrate could not be satisfied beyond reasonable doubt that the applicant referred to the Ministry of State Security.

8.  We were not satisfied that it was shown that a substantial and grave injustice had been done.

9.  PW1 had stated four times in his cross-examination that the entity mentioned in the conversation was, according to his recollection, the Ministry of State Security.  The Magistrate’s finding of fact was addressing the suggestion, raised in cross-examination, that he might have misheard the reference.  The Magistrate was explaining why, objectively, that would not have happened and it was open to her, for this reason, to reject the possibility that PW1 did indeed mishear.  The Magistrate made no assumption in her finding about the linguistic ability of PW1 (as opposed to addressing his ability to hear and his recollection) and the position of the applicant was not addressed at all in this finding.  Rather, her observation was merely an objective comment on the difference between the tones of the two relevant characters when spoken in Putonghua.

10.  In any event, the Magistrate’s reasons for rejecting the applicant’s evidence[4] (see the Judge’s summary[5]) did not include the finding that the applicant referred to the Ministry of State Security nor did she reach her conclusions on the two critical issues of whether the applicant’s actions had a tendency to pervert and whether he intended to pervert the course of public justice on the basis of such a finding. [6]   Furthermore, the Magistrate’s comment of which complaint is made is but one of numerous examples of inconsistencies and improbabilities in the defence evidence.[7]

11.  The Judge agreed with the Magistrate’s conclusions on the issues of tendency to pervert the course of justice and the applicant’s intention to do so[8] and there is no basis for this court to interfere.

12.  The critical elements of the offence charged were the tendency of the applicant’s communications to pervert the course of justice and his intention to do so. The particular telephone conversation was only one of a number of communications over a period of 7 days by which, on the Magistrate’s findings, the applicant sought to influence PW1 in his giving of evidence in the District Court trial. The fact of the reference to the Ministry of State Security rather than the State Administration of Foreign Exchange was of no particular significance.  Much more critical was the cumulative effect of the communications and the fact that the communications repeatedly stressed the need to resolve the share transaction before the start of the District Court trial and the ultimate text message in the series (Exhibit P6), which led to PW1’s contemplating not giving evidence and to his reporting the communications to the ICAC, was one in which the implied threat was most obvious:

“Dato, kind advice from me as a friend. Please 手下留情. Thanks.”[9]

13.  The Magistrate’s comment that the statement by the applicant that the proposal came from the Ministry of State Security was in itself an implied threat was confined to the context of this being an aggravating factor for the purposes of sentence.[10] It was open to the Magistrate to make this observation in the light of her rejection of the suggestion that PW1 misheard the reference in question and her conclusion that the applicant’s actions were intended to influence PW1’s evidence in the District Court trial.  In any event, regardless of the reference to the Ministry of State Security, there was an implied threat (and therefore an aggravating factor for sentence) in the first sentence of Exhibit P6, which plainly suggested that PW1 should be lenient if (to paraphrase) he knew what was good for him.

14.  The application for leave was accordingly dismissed.