HKSAR v. WONG KAM CHING

CACC 74/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 74 OF 2016

(ON APPEAL FROM DCCC 337/2015)

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J U D G M E N T

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1.  Before Judge Casewell in the District Court, the applicant was convicted after trial of one charge of ‘perjury’, contrary to section 31 of the Crimes Ordinance, Cap 200.  He was sentenced to 15 months’ imprisonment.  He applies for leave to appeal against both conviction and sentence.

BACKGROUND

2.  The charge against the applicant was that, as a sworn witness, he had perjured himself in the Commission of Inquiry into the Collision of Vessels near Lamma Island on 1 October 2012 (‘COI’).  The false statement he was alleged to have given the COI stated that, on 8 May 2012, during an inspection of the Lamma IV, one of the two vessels involved in the collision, he had both seen and counted the number of children’s lifejackets on board that vessel[1].

3.  The COI’s terms of reference were:

“ Inquire into the facts and circumstances leading to and surrounding the collision .... on 1 October 2012 –

(a) ascertain the causes of the incident and make appropriate findings thereof;

(b) consider and evaluate the general conditions of maritime safety concerning passenger vessels in Hong Kong and the adequacy or otherwise of the present system of control; and

(c) make recommendations on measures, if any, required for the prevention of the recurrence of similar incidents in future.”

AS AGAINST CONVICTION

The Elements of Offence

4.  The elements of the offence under section 31, Cap 200 are (a) the defendant was lawfully sworn as a witness in a judicial proceeding, (b) he willfully made a statement which was material in that proceeding and (c) he knew that statement to be false or did not believe it to be true.  By virtue of section 43, Cap 200, a person shall not be guilty of perjury solely upon the evidence of one witness as to the falsity of his statement.

Grounds of Appeal

5.  On behalf of the applicant, the grounds as advanced by Mr Surman are:

(1)   The judge erred in holding that the applicant’s statement was material to the COI (the ‘materiality point’).

(2)   The judge misdirected himself that the prosecution witnesses were mutually corroborative as to the falsity of the applicant’s statement (the ‘corroboration point’).

(3)   The judge erred in concluding that the applicant’s statement was false (the ‘falsity point’).

(4)   There is a lurking doubt as to the safety of the applicant’s conviction.

The Materiality Point

6.  Mr Surman submits that the judge was wrong to conclude that the applicant’s statement was capable of affecting the COI’s findings on (a) the causes of the incident on 1 October 2012 and (b) the adequacy of the then control system on maritime safety – pursuant to paragraphs (a) and (b) of its terms of reference.

7.  So far as the causes of the incident are concerned, the judge is said to be wrong about the applicant’s statement because:

(a)   Whereas the judge concluded that the applicant’s statement was capable of influencing the COI’s decision on whether children’s lifejackets were present on 1 October 2012 (paragraph 48, Reasons for Verdict), the COI had clearly stated in its Report that “there is no dispute that at the time of the collision .... the Lamma IV was not carrying any child lifejackets whatsoever”[2].

(b)   There being ample evidence of a non-enforcement policy (see footnote 1), including that of the Ship Inspector conducting the 2011 survey, who said he would have passed the Lamma IV even had there been no children’s lifejackets on board, the judge’s conclusion that the applicant’s statement was capable of influencing the COI’s finding on the implementation of the non-enforcement policy (paragraph 48, Reasons for Verdict) was flawed.

In both contexts, the applicant’s statement that he had seen and counted children’s lifejackets on board the Lamma IV is said to be otiose and immaterial.

8.  Turning to the evaluation of the then control system on maritime safety, the judge is said to be wrong about the applicant’s statement because whether or not there were any children’s lifejackets on board the Lamma IV, all the Ship Inspectors of the Marine Department had been instructed to overlook the relevant statutory requirement in their surveys.  It follows that the threat to the system came from the non-enforcement policy; it had nothing to do with the actual situation concerning the Lamma IV.

9.  In my judgment, the materiality point is unarguable.

10.  It is apparent from reading the COI Report as a whole that the “no dispute” remark, referred to inparagraph 7(a) above, and which indicated the incontrovertibility of the absence of children’s lifejackets, was but a conclusion reached after taking into account all the evidence[3].  As such, the remark is not susceptible to be used in the reverse order attempted by counsel.

11.  As regards the two impugned conclusions mentioned in paragraph 7(b) and paragraph 8 above, again, they were but part of a running analysis by the judge who, at paragraph 49 of the Reasons for Verdict, concluded that the applicant’s statement was material in that:

“ [it] might or would be capable of affecting the decisions of the [COI] when inquiring into the facts and circumstances leading to and surrounding the collision of the two vessels andtheir consideration of the general conditions of maritime safety concerning passenger vessels in Hong Kong and the adequacy or otherwise of the present system of control.

12.  This running analysis was in alignment with how the COI had structured its Report (see paragraph 47 of the Reasons for Verdict), the underlying logic of this structure being “why so many lives were lost” was one of the circumstances surrounding the incident, as to which the question of “the absence of children’s lifejackets” must be addressed and, pending any appropriate findings, including those on the non-enforcement policy, conclusions may be drawn on the integrity of the control system on maritime safety, with recommendations.  It was this by-step approach that guided the judge and led him to make his interim conclusions, leading to the final one.  They were fully justified.

The Corroboration Point

13.  In order to prove the falsity of the applicant’s statement, the prosecution had relied on six prosecution witnesses whose evidence was accepted by the trial judge: PW1, the Marine Manager of the Hong Kong Electric Company (‘HKE’)[4]; PW2, an engineer with Cheoy Lee Shipyards, a company which enjoyed a maintenance contract on HKE’s vessels; PW3, a crew member of the Lamma IV; PW4, same; PW5, same, but in the capacity of engineer; PW6, same, but in the capacity of captain.  PW1 to PW5 clearly recalled their being present at the inspection of the Lamma IV on 8 May 2012; PW6 did not.

14.  For different reasons, these six witnesses are now criticized as being problematic, unreliable and/or downright incapable of providing the necessary corroboration to each other.  Leaving aside for the moment PW1 whose case Mr Surman has chosen to tackle under the falsity point, a related ground, the following is counsel’s detailed complaints:

(a)   As against PW2 to PW6 individually, it is pointed out that, in relation to what actually transpired during the inspection on 8 May 2012 –

   PW2 admitted not to have paid attention to whether the lifejackets he saw were adult lifejackets or children’s lifejackets.

   PW3 admitted not to have known the difference between an adult lifejacket and a children’s lifejacket.  He found out at a later stage.

   PW4 was unable to recall details, and had to fall back on describing the “general survey process”.

   PW5 claimed to have followed the applicant about.  He, however, admitted that his memory of the inspection was “very fragmentary” and “very unclear”.

   PW6 could not even recall if he attended the inspection.

   The ensuing argument is that none of these witnesses were in a position to refute the applicant’s claim that he had inspected children’s lifejackets.

(b)   As against PW2 to PW6 collectively, it is argued that although their general recollection was that there were no children’s lifejackets on board the Lamma IV, this evidence was incapable of giving rise to the requisite corroboration:

(i)   Even assuming the prosecution witnesses to be correct that there were no children’s lifejackets, the situation was not inconsistent with the applicant’s case on “prop boat practice”[5].

(ii)     Lifejackets were normally stored under the passenger seats, and were undisturbed except on the occasion of the annual survey.  The mere fact that these prosecution witnesses were unaware of the children’s lifejackets does not necessarily mean that there were none.

15.  I do not think there is merit in these arguments.  They ignore the true significance of what was said by theses witness.  Take, for example, PW2.  The true import of his evidence is that (a) it was not Cheoy Lee’s responsibility to ensure that HKE vessels pass their annual surveys, and (b) he had not placed any children’s lifejackets on board the Lamma IV to make it pass the 2012 inspection – points that were made all the more important when it was specifically put that he (PW2) was involved in the instance of “prop boat practice” that fooled the applicant[6].

16.  Take also PW3 and PW4.  They were HKE seamen of incredibly long service (30 years).  They worked regularly on the company vessels and were “familiar with them”[7].  Neither of them had any difficulty telling prosecuting counsel the approximate number of lifejackets on board the Lamma IV (over 200).  Presumably they knew what these lifesaving appliances looked like and would know if their vessels carried these appliances in two sizes, or descriptions[8].  Yet they were categorical that there were no children’s lifejackets, implying that there was only one kind[9]. The weightiness of this evidence is not to be detracted by PW3’s admission that he was not, at the material time, familiar with the actual difference between children’s lifejackets and adult lifejackets.

17.  PW5 and PW6 were another two of HKE’s long-time employees.  According to the former, there was “only one style of lifejackets” on board the Lamma IV, namely adult lifejackets.  Likewise, PW6 said he had never seen any children’s lifejackets on board that vessel.  “Definitely there was none,” was what he said.  All that evidence, including everything that has been referred to in the preceding paragraphs, was cogent evidence that there were no children’s lifejackets on 8 May 2012.  It was the only reasonable inference.

18.  Of course, the applicant relied on the “prop boat practice” to explain why, temporarily, children’s lifejackets might have been placed on board the Lamma IV to deceive him.  But that really is a red herring.  It cannot be true even if the practice did exist in some way or another.  Given the non-enforcement policy, there was no reason why HKE should bother[10].  It is fair to say, I believe, that when Mr Surman was confronted with this difficult question, he was unable to come up with any convincing answer.

The Falsity Point

19.  Here the focus is on PW1.  His evidence was damning. Significantly, he said he was responsible for all the HKE vessels, and that the purchasing of such equipment as the lifejackets was his responsibility.  He said he had never purchased any children’s lifejackets for the company and, from the moment he was handed the Lamma IV as a new vessel to when it was caught in the collision on 1 October 2012, he had never purchased or placed on that vessel any children’s lifejackets.  He denied being complicit with PW2 in any “prop boat practice”.

20.  For the following reasons, however, Mr Surman contends that PW1 was not a credible witness, and the judge was wrong to believe him:

(a)   As a Marine Manager, PW1 had dubiously denied knowing anything about the 2007 Regulations.  On the other hand, he admitted to buying and increasing the number of adult lifejackets on board the Lamma IV in 2011, to the ratio of one to every passenger, which was exactly what the 2007 Regulations stipulated[11].

(b)   PW1 brought along a fourth man to the 2012 survey, to make up the number of crew members required to be on board the Lamma IV.  It suggests a willingness to act deceptively in order to get the Lamma IV to pass its inspection.

21.  To contrast PW1’s apparent dubiety, Mr Surman emphasizes the applicant’s lack of motive to lie.  Had he told any untruth in the COI, all the applicant had to do upon recall was backtrack and equivocate, and he would be out of trouble.  There was no reason why he should stick to his evidence unless it was the truth.  That is Mr Surman’s theory.

22.  Putting together PW1’s questionable veracity and the applicant’s lack of a reason to lie, it is submitted that the falsity of the applicant’s statement to the COI cannot be established.

23.  I disagree.

24.  In my judgment, the matters to which the above criticisms are directed have all been canvassed by the trial judge to satisfaction.  I do not think his conclusions can be faulted (see paragraphs 58, 59, 60, 67 and 68 of the Reasons for Verdict):

“ 58. I note that PW1, although he was the Marine Manager of Hong Kong Electric, his knowledge of the life-saving equipment required appeared to be not current. He had ordered adult lifejackets in 2011 which had made the 'Lamma IV' compliant in that area; however, he said he was unaware of the necessity for children’s lifejackets. This is credible, firstly, because the vessel had always passed inspection without them and continued to do so and, secondly, because if he had known, the actual cost of 12 children’s lifejackets would have been, at most, $960. That is based on the cost of $70 for each adult lifejacket found in the Commission report at paragraphs 390 to 398 on page 153. This would be negligible when considered with the other costs of the inspection.

59. I also did not consider that PW1 or Hong Kong Electric deliberately inflated the number of crew on 8 May 2012 to deceive the inspector. In fact, there had been three crew members plus PW1 and staff from the maintenance department, totalling, it is said, six persons from Hong Kong Electric at the inspection, more than would be necessary to deceive the inspector.

60. I do consider, however, that in its daily operation, 'Lamma IV' did breach its licence requirement for crew members. Mr Tang genuinely appeared to consider that the rostering arrangement was sufficient compliance, although it clearly was not. In respect of crew manning levels in its daily operation, there was an unsatisfactory semblance of compliance by Hong Kong Electric. This, however, is very different from carrying out a prop boat in respect of children’s lifejackets which required PW1 and PW2 to combine together to deceive the inspector over 12 lifejackets.

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67. I am fully aware of the defendant’s clear record and the conscientious nature of his other inspections as detailed by DW1. However, the defendant’s testimony before this court shows a clear narrative of an exaggerated and expansive nature. I find it is indicative of untruthfulness. I reject any possibility of there being a prop boat practice in respect of the 8 May 2012 inspection of the 'Lamma IV'. I found it to be a farfetched, impractical speculation. It was decisively disproved by the evidence of PW1 and PW2 and the other witnesses on board.

68. It was apparent to me that the defendant had found himself caught by his initial statement which, although denying any specific memory of the inspection, the logic of the statement that the asterisk in respect of the child lifejackets in the certificate of survey represented compliance, ie, 5 per cent or 12, meant that the lifejackets had been counted.  By the time of the defendant’s evidence before the Commission, the defendant had gained sufficient recollection to elaborate and provide evidence of his competence and compliance with his duty, to confirm the number of child lifejackets by counting them.  Naturally, to fail to have done this may have led to the conclusion that his original statement had been false.”

Lurking Doubt

25.  At the COI, a Mr Lau, the Ship Inspector who passed the Lamma IV in the 2011 survey was called to give evidence.  Like the applicant, who did the same in the following year, Mr Lau had put an asterisk on the 2011 Certificate of Survey to indicate compliance with the number of children’s lifejackets on board the Lamma IV.  It is therefore Mr Surman’s submission that the applicant might really be telling the truth when he said he saw and counted children’s lifejackets in the 2012 inspection, albeit as a result of the “prop boat practice”.

26.  The problem with this submission is that it assumes Mr Lau to be completely candid when compiling the 2011 Certificate. But Mr Lau was not called as a witness in this case, meaning his version of events had not been tested and, for what it is worth, his evidence was rejected by the COI[12]. The point on “prop boat practice” I have already dealt with.  This ground is not arguable.

AS AGAINST SENTENCE

The Judge’s Reasons for Sentence

27.  Of the present case, the judge had identified the following features as relevant to determining the correct sentence:

(a)   The applicant’s lie was disbelieved by the COI and therefore ineffective.

(b)   The lie was motivated by self-protection to establish a previous false statement as true.

(c)    The Marine Department’s non-enforcement policy had placed Ship Inspectors in an invidious position.

(d)   The COI had given the applicant an opportunity to reconsider his evidence but he chose not to do so.

(e)   The applicant was aged 60 and of clear record. His family, friends and colleagues all spoke well of him.  He was said to be professional in his work.

(f)   The applicant suffered from a recognized psychiatric condition of depression, thought to be brought on by the stresses of the COI and this trial.

(g)   His conviction was likely to affect his entitlement to his government pension.

(h)   As a general principle, perjury is met by only one form of sentence, namely immediate imprisonment.

28.  These are the judge’s conclusions (see paragraphs 14, 16, 17 and 18 of the Reasons for Sentence):

“ 14. Having considered all these factors, I consider the defendant as a person prior to these matters has an exemplary character and has served the public well. However, I have convicted the defendant of perjury and that is a serious offence and it is serious in this case because it involved an investigation of the causes and effects of the collision of the two vessels and so it was important that all the witnesses there were frank and honest about their role, particularly a person such as the defendant who inspected one of the vessels. I consider that it is a serious matter and ordinarily it is said that any offence of perjury must be visited by a sentence of imprisonment and I agree with that. Clearly a sentence of imprisonment is appropriate in this case. I consider, as courts have often said, that such a sentence should be of immediate effect.

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16. There is no guideline sentence for perjury because the circumstances in which perjury can be committed are manifold, they relate to many different kinds of proceedings and many different forms of lies can be told.

17. Having considered all the factors relating to the seriousness of the offence, I consider, as I said, that a sentence of imprisonment should be imposed. I consider the starting point for such a sentence of imprisonment would after trial be one of 21 months' imprisonment. There are factors I have outlined, two are important: One is the defendant's depressive illness and the second one is the defendant's loss of financial security as a result of these matters and also the fact the defendant has as a result of depressive illness already suffered considerably since that illness started. I found that those two factors will further reduce the sentence of imprisonment by a factor of 6 months.

18.    So the final sentence of imprisonment for the defendant will be one of 15 months' imprisonment for this offence and that will be the sentence of the court, 15 months' imprisonment.”

Grounds of Appeal

29.  For the following reasons, Mr Surman submits that, the term of 15 months’ imprisonment is manifestly excessive and wrong in principle:

(1)   Relying on Crown v Archer [2003] 1 Cr App R (S) 86, an English decision to which the judge had also made reference, Mr Surman presses the point that there is, in this case, an absence of many of the factors demanding a heavy sentence –

i)   The applicant’s was a one-off lie told over a short period.

ii)   The offence was not pre-planned.

iii)   No third persons had been drawn in to assist the applicant’s perjury.

iv)   The lie had not affected the outcome of the COI because it was disbelieved.

(2)   Compared to other cases, for instance HKSAR v Lau Wai Man DCCC 621/2015 and The Queen v Wu Wing Keung, Anthony CACC 202/1988, the applicant’s sentence is unduly heavy.

(3)   In Wu Wing Keung (ibid), it was observed by the Court of Appeal that “perjury committed in the course of giving evidence in one’s own defence” is a category of perjury “upon which the law look[s] benevolently”.  It is submitted that the applicant’s perjury falls under this category.

(4)   The judge had given insufficient weight to the applicant’s good character and long and diligent government service (30 years).

(5)   There was a gap of two years between 19 April 2013, when the COI Report was published, and 5 May 2015, when the charge was laid.  Since, in its Report, the COI had made it clear that it rejected the applicant’s evidence with reasons, there was, owing to no fault of the applicant, a substantial delay in bringing his prosecution.

Grounds of Appeal

30.  What the Court of Appeal said in Wu Wing Keung was in the context of a defendant giving false evidence in his own trial, a situation which, the Court carried on to remark, is not often prosecuted.  It is not to be thought comparable to where a public officer has lied in a major public inquiry into a major public safety issue, albeit that this officer’s only intention is to cover up a pre-existing falsity in the records[13].  This difference in the nature of the proceedings involved is also reason why the sentencing cases cited by counsel for comparison purposes are unlikely to be helpful.  The same difference puts the absence of many of the aggravating factors identified in Crown v Archer in perspective.

31.  I do not think the judge had underestimated the significance of the applicant’s previous good character.  Invariably, public officers who find themselves in the applicant’s position are of previously unblemished record and, in this case, the applicant’s culpability must be considered in the light of his persistence to lie when he was offered the opportunity to retract.

32.  Given the repercussions of the COI Report, which included the prosecution of a number of individuals for such serious offences as ‘manslaughter’ and ‘misconduct in public office’, I do not think the two-year delay in the applicant’s case was inordinate.  There is certainly no criticism on the part of the prosecution.  In any event, the discount of 6 months which the judge had given is a generous one.  It amounts to a 29% reduction in sentence and, as was made clear by the judge, it covers the applicant’s “depressive illness” (likely to have been brought on by the COI and this case) as a factor contributing to this discount.

33.  Looking at the matter in the round, I am not persuaded that it is reasonably arguable that the 15-month term is manifestly excessive or wrong in principle.

CONCLUSION

34.  The applicant’s applications for leave to appeal against conviction and sentence are denied.

POSTSCRIPT

35.  At the handing down of this judgment I advised the applicant of his right to renew his applications before the Court of Appeal. I further advised him that should he renew his applications and should the Court of Appeal find no merit in them, the Court of Appeal might exercise its power under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 to make an order for loss of time against him.