HKSAR v. LIN TAK KAM

HCMA 360/2017
[2018] HKCFI 21

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 360 OF 2017

(ON APPEAL FROM ESCC 3704 OF 2016)

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J U D G M E N T

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1.  The appellant was convicted after trial by a deputy magistrate (“the magistrate”) of one count of “attempting to do an act tending and intended to pervert the course of public justice”, contrary to Common Law and section 159G of the Crimes Ordinance, Cap 200.

2.  The particulars of the charge were as follows:

“[The appellant], on or about the 29^th of February 2016, in Hong Kong attempted to pervert the course of public justice by doing an act which had a tendency to pervert the course of public justice in that he instructed FOO Yuk-ching to destroy information in respect of a criminal investigation against the said [appellant] for allegations of corruption.”

3.  The prosecution case was largely undisputed.  The main issue in the trial was whether at the material time the appellant had the requisite mens rea.

The prosecution case

4.  As the prosecution case was mainly undisputed, I would basically adopt the summary of the prosecution case by Ms Ko, Senior Assistant Director of Public Prosecution, for the respondent.

5.  At about 0700 hours on 29 February 2016, ICAC officers arrived at the appellant’s home with a “Warrant to Enter and Search”. Officer Chan (“PW1”) declared arrest on the appellant and told him the purpose of the visit.  PW1 told the appellant that he, being the person in charge of Tribe Limited (“Tribe”), was suspected to have offered advantages to the employees of I Love Limited (“I Love”) for them to leak the secret information of I Love to assist Tribe to obtain business, contrary to section 9(2) of the Prevention of Bribery Ordinance (Cap 201). The said employees were Foo Yuk-Ching Chilli (“Chilli”) and Chan Po-kei, Rachael (“Rachael”).  PW1 then cautioned the appellant who replied that he understood.  PW1 showed the appellant the said search warrant.

6.  PW1 told the appellant that they were looking for things related to Tribe.  Upon search, the appellant’s computer notebook was seized.  The appellant said there was no such file in the computer.

7.  The appellant requested to contact his lawyer. In the presence of the officers, the appellant used his mobile phone (“the iPhone”) to call and message his trainee solicitor friend Eric Chan at about 0710 hours without success.  With the permission of the officers, the appellant retained the iPhone on the condition that it could only be used to contact Eric Chan.

8.  The appellant then requested to change his clothes in the bathroom.  With the permission of the officer, the appellant went to the bathroom with the iPhone.  The appellant stayed there for about two to three minutes during which he used the iPhone to send the following messages (collectively as “the messages”) to the mobile phone of Chilli:

“Chilli listen”

“ICAC found me”

“just at my home”

“remember to destroy all the tribe information”

“I need to go to their office”

9.  The appellant deleted the messages from the iPhone before he left the bathroom.  He did not know that the mobile phone of Chilli had already been seized by other ICAC officers during a contemporaneous visit of her premises.

10.  At about 0815 hours on the same day, the iPhone with its SIM card and the computer notebook were seized by PW1.

The defence case

11.  The defence did not dispute the actus reus of the appellant.  The defence case was that the appellant believed that the investigation arose from the commercial dispute he had with Scott Davies, the owner of I Love.  He did not give any corrupt advantages to Chilli or Rachael.  The texting of the messages to Chilli was made in an attempt to remind her about their earlier promise to Scott Davies that they had to delete all the information of Tribe in order to avoid further and future complaints from Scott Davies. The appellant had no intention to impede the investigation of the ICAC.

12.  The appellant elected to give evidence and called his uncle (DW2) to testify as a character witness.

13.  The appellant’s evidence was well summarized by Mr Graham Harris SC, counsel for the appellant, in his helpful written submission. The appellant is aged 27 with a clear record at the time of the alleged offending.  The appellant and Chilli had been in a relationship since 2009.  Chilli and Rachel were formerly the Promotion Manager and the Marketing Executive respectively of I Love.

14.  In June 2015, the appellant, Chilli and Rachael decided to set up their own marketing firm, Tribe, of which the appellant and Chilli were de facto shareholders. Scott Davies later discovered about the relationship between them and the affairs of Tribe.  Scott Davies formed the view that the appellant and his team were touting his customers and obtaining confidential information of I Love.  Chilli and Rachael were summarily dismissed.

15.  Correspondence was exchanged between their lawyers between 27 August 2015 and 19 October 2015 in relation to their dispute.

16.  The matter was then left in abeyance as the parties were unable to reach an agreement as to the amount of legal fees payable to the solicitors for Scott Davies.  The appellant thought that the matter was over as they had promised to shut down their website and destroyed all Tribe materials.

17.  In November 2015, the appellant changed the name of Tribe to Molecule Limited.  In January 2016, he had some dealings with a person by the name of “Kimberley” who worked in the Bliss company (which happened to share the same address as I Love).  Given his concerns about Scott Davies, he decided not to have any further dealings with that person.

18.  The appellant testified that he sent the messages as he believed that the ICAC investigation was instigated by Scott Davies.  It made him think of the dispute with Scott Davies, so he sent the messages to Chilli to protect her interest as he knew Chilli was a “very careless” person.  The messages were meant to remind her about their earlier promise to delete the Tribe materials.  He denied any intention to impede the ICAC investigation.

19.  He denied that the ICAC officers told him they were looking for information of Tribe and I Love.

The magistrate’s findings

20.  The magistrate noted that the appellant was a well‑educated and knowledgeable young man with a clear record.  He directed himself that the appellant had a lesser propensity or likelihood to commit the offence and that what he said in his testimony was more likely to be true.  The Magistrate considered the messages to be simple, straightforward and logical.  He regarded the messages the best evidence of the appellant’s state of mind at the material time.  The magistrate referred to some peculiar circumstances when the messages were sent in paras 41 ‑ 57 of his Statement of Findings (“SF”).

21.  The magistrate observed that the messages were sent to Chilli in breach of the condition imposed by the ICAC officers.  While the appellant called and sent messages to Eric Chan in front of the ICAC officers, he sent the messages to Chilli inside the bathroom.  The messages were sent in the heat of the ICAC raid.  The appellant asked Chilli to destroy “all the tribe information”, the scope of which was far wider than the relevant documents covered by the settlement negotiations, as I Love focused on Tribe’s marketing materials only.  In the course of the settlement negotiation, the appellant had sufficient time and opportunity to check with Chilli and Rachel whether the relevant documents of Tribe had been destroyed.  The magistrate emphasized that the messages were deleted immediately, giving the inference that he did not want the ICAC to discover them.  As the appellant said in the messages that he needed to go the ICAC office, he was clearly aware that their investigation would continue.

22.  The magistrate found that DW2 was not involved in the business of Tribe.  He did not have a full view of the appellant’s character at the material time.  No weight was therefore attached to the evidence of DW2.

23.  As a result of his analysis of the evidence, the magistrate did not believe that the appellant’s intention of destroying the materials was related to the settlement negotiations or the dispute with I Love.

24.  The magistrate found that the conduct of the appellant had a “manifest tendency” to pervert the course of justice.  He found that the appellant intended the destruction of materials stated in the messages, knowing that they included the information or documents which the ICAC was looking for.  It was found that the appellant intended to impede the ICAC investigation.  The ICAC investigation was clearly in progress and the appellant knew that it would continue and that curial proceedings were possible.

25.  The magistrate was satisfied that all the elements of the charge had been proved.  The appellant intended to impede the investigation of ICAC. His act tended and was intended to pervert the course of public justice.

Grounds of appeal

26.  The grounds of appeal against conviction can be summarized as follows:

Ground 1: The magistrate erred in finding that the only reasonable inference to be drawn was that the appellant’s conduct had a manifest tendency to pervert the course of justice and inferred that he so intended.

Ground 2: There are material differences between the magistrate’s reserved Oral Reasons for Verdict (“oral RV”) and his Statement of Findings (“SF”), in particular on:

(a) whether the appellant was aware of the nature of the documents ICAC officers were looking for;

(b) the scope of the documents in the appellant’s messages; and

(c) the appellant exaggerating the risks of the civil dispute.

Grounds 3 to 6: The magistrate failed to consider properly the appellant’s evidence.

Respondent’s position

27.  The respondent supports the conviction by the magistrate.  It is submitted that all the grounds of appeal have no merits.  Ms Ko points out the evidence of the appellant in cross examination that he agreed that the letter dated 31 August 2015 was issued by his solicitors (exhibit D6), by that time he had destroyed all the relevant materials of Tribe in his possession.  Chilli also confirmed that she had destroyed all documents in her possession.  When he sent the messages to Chilli, he was not aware of any actual information that had not been destroyed.

28.  Ms Ko emphasizes that the timing of the appellant’s conduct was crucial.  The appellant was fully aware of the criminal allegations made against him, as the person in charge of Tribe, and was in relation to bribery offence concerning his company and I Love, the previous company Chilli worked for.  It was at that point of time that he went to the bathroom to delete the messages.  It does not matter at all whether there had been any previous negotiations or promise to delete certain documents of Tribe. It is submitted that the magistrate’s conclusion that the appellant’s conduct had a manifest tendency to pervert the course of public justice was made with sufficient evidential basis.  The magistrate was also entitled to draw the inference that the appellant had the requisite criminal intent to commit the offence.

29.  Insofar as the “differences” between the magistrate’s oral RV and the SF are concerned, the respondent submits that there was no inconsistency between the oral RV and SF.  In any case, the oral RV had sufficiently dealt with the fundamental issues in the case.

Discussion

30.  The offence of perverting the course of justice has been considered by the Court of Final Appeal in HKSAR v Egan^[1]and HKSAR v Wong Chi Wai.^[2]

31.  In the latter case of Wong Chi Wai, Ribeiro PJ summarised the elements of the offence:

“30. 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.’ The actus reus is thus the doing of the act with the prohibited tendency and the mens rea is the intention to pervert the course of justice.

31. With regard to the actus reus generally, the following propositions may be stated:

(a) Although it is called an ‘attempt’, it is a substantive offence. But like an inchoate offence, it is committed even where the act with the prohibited tendency does not actually result in interference with the course of justice.

(b) A person’s conduct has a tendency to pervert the course of justice if it has a tendency towards ‘impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice.’

(c) The tendency must involve impairing the administration of justice in curial proceedings.Conduct with a tendency to result in unlawfulness which does not interfere with curial proceedings does not constitute the offence.

32. The following propositions may be stated in respect of the mens rea of the offence:

(a) 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.

(b) 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.^”

Ground 1 – appellant’s conduct not having “manifest tendency” to pervert/mens rea to commit the offence

32.  The point was made that the magistrate erred in law in relying on the case of R v Rafique[3], the facts of which are distinguishable from the facts in this case.  It is the complaint of Mr Harris SC that the magistrate erred in finding, in the light of all the facts and circumstances of this case, the only reasonable inference to be drawn was that the appellant’s conduct had a “manifest tendency” to pervert the course of justice and inferred that he so intended.  It is emphasised that the deletion of the materials was made upon the demand of I Love, and the deletion was made in September 2015, long before the ICAC visit. Given the relationship between the appellant and Chilli, the appellant would not have believed he had committed any bribery offences. The word “remember” in the messages also suggested the bringing of Chilli’s mind to something from the past.

33.  Among the reasons is also the submission that there was no evidence that any of the Tribe information existed or whether Chilli did in fact withhold some materials relating to Tribe. 

34.  It is also suggested that the magistrate “appeared to make two factual assumptions (not supported by evidence)” when he found that the materials stated in the messages are relevant to the alleged offence and may affect the decision to prosecute: first, the materials existed; and second, the materials are incriminating.  When he stated that “those materials include those in which the ICAC was interested”, he wrongly equated the alleged act of interference as sufficient to constitute perversion.

35.  I cannot agree with the suggestion that the magistrate made the alleged factual assumptions without sufficient evidence. Para 61 of his SF, read in its context, does not suggest that the magistrate had assumed that the materials “stated in the messages” did exist.  When the magistrate said “those materials may affect the decision to prosecute…”, it is clear that he did not assume that the materials must be incriminating.

36.  As regards whether the Tribe materials in fact existed, I do not think it is necessary for the prosecution to prove that the Tribe materials existed or Chilli did in fact withhold some materials relating to Tribe.  What is important is the appellant’s intention to destroy all Tribe materials.  

37.  In my judgment, the circumstances when the messages were sent are very important.  The messages were sent shortly after the entry of the ICAC officers into the home premises of the appellant.  The ICAC officers had shown the search warrant and explained to the appellant that they were investigating bribery offence.  The search warrant informed the appellant that the officers were searching for “…accounts records…business records…documents… and any kind of records, documents, things or articles.”

38.  As the appellant admitted in his evidence, he was told that he was suspected of, being the person in charge of Tribe, offering advantages to Rachael and Chilli (the employees of I Love) in return for confidential information of I Love. He must know that ICAC officers with the search warrant were looking for evidence, documentary or otherwise, in respect of Tribe and himself.  

39.  He sent the messages knowingly in breach of the condition imposed by ICAC officers on the using of his iPhone.  He then immediately deleted the messages without telling the officers.  The messages informed Chilli that ICAC found him at his home and the appellant needed to go to their office.

40.  The magistrate drew the inferences, quite properly in my view, that (i) the appellant deleted the messages as he did not want the ICAC officers to discover the messages that he had sent in the knowledge that the phone would be seized; and (ii) he knew the investigation was in relation to Tribe and I Love, the investigation would continue and the curial proceedings were at least possible.

41.  I will deal with the criticisms that the magistrate failed to consider the appellant’s evidence in the discussion of Grounds 3-6.

42.  However if the magistrate properly rejected the evidence of the appellant that he had only the civil dispute with I Love in his mind and he only wanted to avoid future troubles in the civil dispute, the magistrate in my judgment was quite entitled to find that the appellant’s conduct had a manifest tendency to pervert the course of justice and to infer further that he indeed had such intention.

43.  In his oral submissions, Mr Harris SC appears to suggest that there were no curial proceedings in this case, which is a substantial ingredient of the offence.  Ms Ko disagrees with this proposition in law.

44.  The law is clear that the tendency of the alleged act must involve impairing the administration of justice in curial proceedings.Conduct with a tendency to result in unlawfulness which does not interfere with curial proceedings does not constitute the offence.

45.  The Court of Final Appeal stated in para 126 of the judgment in Egan that it is unnecessary for the curial proceedings to have been instituted at the time of the acts.  Referring to the English case of R v Rogerson[4] which was adopted in HKSAR v Wong Shing Yim[5], the court said the accused must know of or contemplate the possible institution of such curial proceedings and realise that the proposed conduct has the manifest or intended tendency to pervert the course of justice in relation thereto.  However it matters not that the relevant law enforcement agency has not itself considered bringing proceedings at the time of the accused’s act or agreement in question.

46.  When there are no curial proceedings in existence, the prosecution must prove that there is a clear link between the acts complained of and the relevant curial proceedings that would result from the investigations.

47.  The magistrate demonstrated clearly his understanding of such legal requirements of the offence in paras 59, 64 to 66 of his SF.  Referring to Rafique case, he said the appellant knew that the investigation would continue and that curial proceedings were possible.  With his findings, there is no doubt a sufficient link between the acts done by the appellant and the curial proceedings.

48.  In my view, on the totality of the evidence, the magistrate was entitled to find the requisite tendency and intention to pervert the course of justice.

49.  The first ground fails.

Ground 2 – differences between oral RV and SF

50.  The complaint of the appellant is that the reasons in the RV differ from his SF materially.

51.  The closing submissions of the parties were concluded on 10 May 2017.  The magistrate delivered his verbal RV on 18 May convicting the appellant.  The RV contained quite detailed reasons for the conviction and cannot be said to be an ex tempore judgment.  It is unwise of the magistrate to prepare his SF which contained more reasons than what he had pronounced as “brief verdict” on 18 May 2017.  The “brief verdict” was not brief and indeed of some length.

52.  An accused is entitled to know the reasons for his conviction.  But we all know that magistrates court is a very busy court.  It is unrealistic to expect a magistrate to give full reasons of his decision at the end of each trial immediately.  A magistrate cannot be criticized for giving brief reasons for the conviction shortly after the conclusion of the evidence and submissions of parties, and then prepare his statement of findings subsequently with more detailed elaboration of his reasons.

53.  However when the magistrate had adjourned for a week when he pronounced his verdict, parties would legitimately expect that he would give full reasons for his decision.  The magistrate did not explain in his SF why he deemed necessary to add reasons to his previous reasons in the RV.  I have to accept that the practice of the magistrate in this case did give basis to a legitimate complaint as the appellant made here.  Such practice of the magistrate should not be encouraged.

54.  That said, the question that the court must look at is whether the appellant has been in any way prejudiced as a result.

55.  Counsel for the appellant complained that the magistrate added nine additional paragraphs to reconcile his earlier reasons saying that there was no dispute as to whether the ICAC officer told the appellant what documents they were looking for.  In fact, the appellant disputed that.

56.  Reading the sentence “All the undisputed evidence shows as follows: …” (Appeal bundle 132 U) in its context, I do not think the magistrate said there was no dispute as to what ICAC officers told the appellant the documents they were looking for.  The magistrate was simply saying that the appellant was aware of the “nature of the documents” that ICAC officers were looking for (Appeal bundle 133 A-B).

57.  There was indeed undisputed evidence that the appellant was told the offence he was suspected of and shown the search warrant which contained the things that ICAC officers were looking for.  The appellant must be aware that ICAC officers were looking for documents in relation to the suspected bribery offence concerning Tribe and I Love.  That was why the magistrate said in para 36 of his SF that “regardless of whether Officer Lam did this… ” (i.e. informing the appellant).

58.  On the strength of these evidence, the finding of the magistrate cannot be faulted.  I do not find that the additional reasons about his findings in his SF, that officer Lam told the appellant what he was looking for, contradicted the magistrate’s finding in his RV or added anything materially to the evidence in totality.

59.  As regards the reference to “accounting documents” in the SF, I agree that the magistrate did not refer to a specific category of document as such in his RV.  The term “accounting documents” appears in para 47 of the SF.  There the magistrate was in fact using an example to explain why he thought “all the tribe information” referred to in the messages was far wider in scope than the relevant documents covered by the negotiations with I Love.  He said “all the tribe information” clearly included Tribe’s accounting documents, which were not materials referred to by I Love in their negotiation letters, as I Love focused on Tribe’s marketing materials only.  The magistrate already found in his RV that the thing to be destroyed referred to in the messages – “all the tribe information” – was far wider in scope than the relevant documents covered by the settlement negotiation.  In this context, the magistrate was only elaborating a finding that he had earlier made.  I do not find that there was any inconsistency or contradiction.

60.  The magistrate’s finding in para 57 of the SF that “the Defendant has exaggerated the risks of the dispute…” must also have been intended as elaboration of his findings in his RV.

61.  I find that the “material differences” relied upon by the appellant arose from the magistrate’s attempt to elaborate in the SF his findings in the RV.  The additional reasons in the SF did not contradict the reasoning in the RV.

62.  I do not see any real or material inconsistencies in the two reasons, nor do I find any contradictions in the reasoning of the magistrate.

63.  On the other hand, even if the magistrate’s reasons are to be confined to his RV without his elaboration in the SF, I would still find that he had given adequate reasons to support the conviction.  The reasons he gave in the RV addressed the fundamental issues in the case.  He directed himself properly in law and the elements of the offence.  He gave sufficient reasons why he found the conduct of the appellant had manifest tendency to pervert and came to his inference that the appellant intended to pervert.  The magistrate explained why he disbelieved the appellant and attached no weight to the character witness.

64.  I do not see any prejudice caused to the appellant.

65.  Ground 2 must fail too.

Grounds 3 - 6 – failure to consider the evidence of the defence properly

66.  These grounds are inter-related and therefore discussed collectively.

67.  Magistracy appeals are heard by way of “rehearing”.  The credibility and reliability of any particular witness is within the assessment of the trial magistrate who had the benefit of seeing and hearing the witnesses.  It is only where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or where the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence, that the conviction will be rendered unsafe and/or unsatisfactory.  An appellate court will only depart from a magistrate’s finding of fact or determination of a witness’s credibility if the court is satisfied that the finding is plainly wrong (HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, paragraph 65).

68.  Moreover, it is not incumbent upon the magistrate to write down every piece of evidence in his reasons.

69.  In my judgment, the magistrate has properly considered the evidence of the appellant and his character witness.

70.  The magistrate reminded himself of the clear record of the appellant and his good personal background.  He demonstrated careful assessment of the appellant’s evidence and the evidence of the character witness.

71.  The magistrate did not mean to disregard the entirety of the evidence of the character witness.  He only attached no weight in considering the issues of the case as the witness was not involved in the business of Tribe, having no full view of the appellant’s character at the material time.

72.  Mr Harris SC complains that the magistrate wrongly failed to consider the Bliss incident in early January 2016, which had reminded the appellant the civil dispute with I Love.  In my judgment, there is no basis to suggest that the magistrate has not considered the matter. Moreover this evidence had limited evidential value.

73.  The incident occurred almost two months before the day of arrest.  The appellant agreed that when the negotiation letters were exchanged in 2015, he had confirmed with Chilli that the material promised to be destroyed had indeed been destroyed.  If he did not trust Chilli’s words, he should have sorted out the issue well before the day of arrest.  Again, if the Bliss incident should be relevant in reminding him of the issue, he should have confirmed with Chilli whether the material had been destroyed in January.

74.  The magistrate did refer to the attitude of Chilli towards the question of legal costs in the negotiation, which should not have much relevance to the issues in the trial.  However I do not think the magistrate’s decision of convicting the appellant was affected by his view of Chilli or the appellant’s attitude towards the legal costs.

75.  What was important in the mind of the magistrate was his concern that the settlement negotiations made no progress after early September.  That is why the magistrate said in para 51 of the SF that “they (the settlement issues) captured his attention out of the blue during the ICAC raid” and hence he found the appellant’s claimed concern about the dispute with I Love inherently improbable. All these concerns were matters that the magistrate was perfectly entitled to consider.

76.  On Ground 6, counsel criticised that there was no evidence to support the magistrate’s findings that the materials mentioned in the messages existed at the time, and were relevant to the alleged offence. I do not think that the magistrate meant he found the materials did exist.  He was all along focusing on the “intended destruction” and that the destruction of the material may affect the decision to prosecute.  He found the “intended destruction” of the materials referred to in the messages had a manifest tendency to pervert.

77.  All these grounds, collectively viewed and considered, in my view do not support the criticisms that the magistrate failed to consider the evidence of the appellant and his witness properly.  I do not see any basis to interfere with the magistrate’s finding that the intended destruction of “all the tribe information” was unrelated to the civil dispute with I Love, but was intended to pervert the course of justice.

78.  In a magistracy appeal, the appellate court is duty bound to reach its own independent decision on the evidence given at trial (and additional evidence as it may admit).

79.  On the evidence before me, I would reject the appellant’s evidence that he sent the messages in order to avoid troubles arising from the civil dispute with I Love.

80.  There are undisputed evidence and evidence that can hardly be challenged in the case.  The messages were sent to Chilli soon after the appellant had been told of the suspected bribery offence he was involved as the person in charge of a company for offering bribe to Chilli and another, who were employees of another company.  He knew ICAC was going to search his home for evidence relevant to the alleged offence.  He knew the investigations would continue and he had to go to the ICAC office.  He asked for permission to go to the bathroom for him to change, but he took the opportunity to send the messages, in breach of the condition that he could only use the iPhone to contact his lawyer.  The messages were then immediately deleted.  It was obvious that he did not want the ICAC officers to discover them.

81.  I am satisfied beyond reasonable doubt that the appellant’s conduct had a tendency, and was intended, to pervert the course of justice.

The result

82.  For the above reasons, the appeal against conviction must be dismissed.