HKSAR v. NG WAI BING

DCCC882/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 882 OF 2010

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Reasons for Sentence

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1.  Ng Wai-bing, you have been convicted by me after trial of the offence of perjury. The perjury occurred during the course of a long criminal trial in which your husband, with others, was a defendant. He was charged with conspiracy to keep a vice establishment.

2.  The prosecution case depended on the evidence of a number of undercover police officers. You had arranged for MP3 recorders to be placed in the interview room outside the courtroom in which the trial was taking place in the District Court. This was an interview room which was being used by police officers, including those who were witnesses in the trial, as a waiting room. Your object in placing the recorders there or causing them to be placed there was to ascertain if anything improper was said between the police officers using that room. This court is not directly concerned with the propriety of that conduct. That was a matter for the court in the contempt proceedings that were brought against you.

3.  Your husband’s trial had started in April 2007. After many months, on 5 December 2007 counsel then appearing for your husband applied to the court for the recall of the 1st prosecution witness, an undercover officer, in order that he could be cross-examined about conversations it was alleged he had had with other police officers in the interview room during the course of the trial. Counsel told the court there had been recordings. Before acceding to that application, the Judge decided to hold a voir dire to determine the authenticity and relevance of the recordings.

4.  You were called as a witness in that voir dire to give evidence, including evidence about how the recordings had come to be made and their custody thereafter. You had been a police officer for many years and therefore were as aware as anybody of the obligation to tell the truth. Indeed, you had solemnly made an affirmation to the court that the evidence that you would give to the court would be the truth, the whole truth and nothing but the truth. The evidence that you gave was not.

5.  You claimed that you had only told the litigation clerk of the solicitor acting for your husband that you were making these recordings one or two days before your husband’s counsel revealed the existence of these recordings to the court on 5 December 2007. I found that you had told him about this in the previous May and that you had wilfully given evidence which you knew to be false. I found that the lie that you told was as to a material matter in the voir dire. It was relevant to your credibility as to the safe custody of the recorders and recordings, the authenticity of which was an issue before the court. By denying that you had disclosed the matter to the solicitor’s clerk, you effectively shut off further cross‑examination as to any role he and others in your husband’s legal team may have had in the custody of those recorders and recordings.

6.  I have listened to the eloquent plea in mitigation made on your behalf by Mr Jenkyn-Jones in which he referred to the somewhat unusual circumstances of this case. I take what he has told me into account. In particular, I bear in mind that I am obliged to view the circumstances of your lie to the court in the most favourable light on the evidence before me and that is that your motive for committing the perjury was simply to protect this clerk and possibly others in your husband’s legal team from being implicated in what you had been arranging. You would not, however, have told this lie if you were satisfied that your actions were perfectly proper.

7.  I do in particular take into account that unlike in other cases of perjury that often come before the court, there is no evidence that the lie which was the subject of the charge was necessarily told by you to avoid your husband’s conviction or to obtain any advantage for you or him. I bear in mind your long and unblemished career as a police officer.

8.  Despite these matters, perjury is always a serious offence. It strikes at the very basis of the administration of justice. As courts have said in the past, justice inevitably suffers whatever the motive for the perjury and in whatever circumstances it is committed. An immediate sentence of imprisonment is inevitable even in the rather unusual circumstances of this case.

9.  I am satisfied that the appropriate sentence in the circumstances of this case is one of 6 months’ imprisonment.