THE QUEEN v. CHEUNG CHUNG CHING

-------------------

JUDGMENT

-------------------

Roberts, C. J. -

Preliminary

1. This is an application, by way of case stated, by the Attorney General, brought under section 84 of the District Court Ordinance.

2. The respondent, CHEUNG Chung-ching, was charged in the District Court on one count of conspiracy to attempt to pervert the course of public justice.

3. It was alleged in the particulars of the offence that, between 1st October, 1983 and 14th December, 1983 (though it is not disputed that the date should have referred to "1982"), Cheung conspired with five other persons to attempt to pervert the course of justice by agreeing that four of those five persons, who were potential witnesses in his own trial on the charge of common assault, should fail to attend and give evidence.

Statement of facts

4. The respondent was charged, in October 1982, with common assault on two persons, CHONG Kin-wah and SO Kwai-po. He pleaded not guilty to these charges on 15th October, 1982. His trial was set down for hearing on 14th December at Tsuen Wan.

5. The Crown intended to call as witnesses the two victims, CHONG and SO, and two other men, TANG Koon-kau and HO Ying-wah. These were four of the persons mentioned in the conspiracy charge later brought against the respondent.

6. Witness summons were served upon those four witnesses. On 14th December, the day fixed for trial, none of them attended. An application for an adjournment of the trial by the Crown was refused and the respondent was acquitted on the charges of common assault

Findings of fact by the Judge

7. The judge found that, at some time between July and October, 1982, YAU Hon-keung, who was the first prosecution witness in the conspiracy charge, was approached by an I.C.A.C. officer, with a proposition that Yau should give information to the Commission about the activities of police officers.

8. Between 14th and 25th October, 1982, that is to say, in the period immediately after he was charged with assault, the respondent got in touch with Yau to try to find out who had instigated the complaint which had led to the charges of assault which he faced. On 25th October Yau, the respondent and TSO Tung-hon discussed the prosecution of the respondent for assault. The substance of this conversation was reported to the Commission. On 30th October Yau was provided with a tape-recorder which he was instructed to switch on during the course of the meeting. When Yau, the respondent and Tso met in a restaurant on that day, their conversation was recorded. It was admitted in evidence as an exhibit with a certified transcript accompanying it.

9. The judge found that the relevant parts of the recorded conversation related to the respondent's trial on the charges of common assault and discussed the question of whether or not the witnesses should give evidence and, if so, what they should say.

10. The judge was satisfied that the recording was genuine, that the voices recorded were those of the respondent, Yau and Tso, and that in the discussions agreement was reached between the parties that an unlawful act should be performed.

11. In the context of the statement of case, there is no doubt in our minds that the unlawful act to which the judge is referring is that which is set out in the conspiracy charge.

12. The most important part of the case stated by the judge is. paragraph 13 which I quote in full -

Questions to be answered

13. The judge sets out the questions on which the opinion of this court is sought, as follows -

Agent provocateur

14. The answer to the first question depends upon the correct definition in law of 'agent provocateur'.

15. As to this, we rely upon Mealey and Sheridan v. The Queen ⁽¹⁾ .Delivering the judgment of the Court of Criminal Appeal, Lord widgery L.C.J. commented as follows, at p.61 -

"The first thing which must be made clear in fairness to everybody is that there is no evidence, beyond such fragmentary parts of the statements of Mealey and Sheridan as I have indicate, that Lennon was an agent provocateur in the true sense. I say 'in the true sense' because there is a neat definition contained in the report of the Royal Commission on Police Powers in 1928 where an agent provocateur is taken to mean 'a person who entices another to commit an express breach of the law which he would not otherwise have committed and then proceeds or informs against him in respect of such offence."'

16. This definition was approved by the House of Lords in R. v Sang⁽²⁾.

17. The second question posed by the judge is bound up with the first. This becomes apparent on an examination of the definition of "agent provocateur" which was adopted by the court in Mealey^(1).

18. In paragraph 13 of the statement of case, the judge found that Yau "incited the respondent to act in a way that he otherwise would not have considered." We think that, although the wording of the second question is not entirely clear, the judge was dealing with the commission of the offence of conspiracy by the respondent.

19. If there was evidence on which the judge could find that the respondent had been incited by Yau to act in a way that he would otherwise not have considered (and it was conceded by the Crown that this had occurred) the judge has correctly applied the law governing the meaning of the phrase "an agent provocateur" to the facts as he found them.

20. The answer therefore to the first and second questions is "No, the judge did not err in law."

Is there a defence of 'entrapment'?

21. In the third question which is posed, the judge refers to what he describes as "recent case law", though he does not identify the authorities which he has in mind.

22. It seems to us that the matter is clearly and firmly decided by R. v. Sang⁽²⁾, referred to above. There was a half suggestion that this court might be prepared to consider argument that the courts of Hong Kong are not bound by decisions of the House of Lords.

23. We do not consider that this submission is arguable in view of de Lasala v. de Lasala⁽³⁾ and the clear indication of the Privy Council in that appeal that, whatever the formal position might be, in practice the Hong Kong courts should follow decisions of the House of Lords where these were applicable; that is to say, if a point of common law is involved, since the common law applies here, or where the issue is the interpretation of same statute, the terms of which had been wholly or substantially adopted in a Hong Kong ordinance.

24. The correct approach of the courts to the evidence of agent provocateur was set out by Lord Diplock at p.1226e of Sang⁽²⁾ -

"Before turning to that wider question however, I will deal with the narrower point of law on which this appeal actually turns. I can do so briefly. The decisions in R. v. McEvilly, R. v. Lee [1973 60 Cr.App.R. 150] and R. v. Mealey, R. v. Sheridan [1974 60 Cr .App.R. 59] that there is no defence of 'entrapment' known' to English law are clearly right. Many crimes are committed by one person at the instigation of others. From earliest times at common law those who counsel and procure the commission of the offence by the person by whom the actus reus itself is done have been guilty themselves of an offence, and since the abolition by the Criminal Law Act 1967 of the distinction between felonies and misdemeanours can be tried, indicted and punished as principal offenders. The fact that the counsellor and procurer is a policeman or police informer, although it may be of relevance in mitigation of penalty for the offence, cannot affect the guilt of the principal offender; both the physical element (actus reus) and the mental. element (mens rea) of the offence with which he is charged are present in his case."

25. It is perhaps necessary only to cite one further passage, taken from the judgment of Lord Salmon, at p.1235h -

"My Lords, it is now well settled that the defence called entrapment does not exist in English law: R. v. McEvilly, R. v. Lee, R. v. Mealey, R. v. Sheridan. A man who Intends to commit a crime and actually commits it is guilty of the offence whether or not he has been persuaded or induced to commit it, no matter by whom."

26. We have been invited to express a view as to the extent to which the courts have a discretion to exclude evidence which has been obtained as a result of the activities of an agent provocateur. This question was of part of the case stated by the judge and we do not think it proper that we should express opinion on it.

27. We therefore conclude that the answer to the third question is that incitement by an agent provocateur to another to commit an offence does not absolve that other person from criminal responsibility. It has, however, been observed in R, v. Sang ⁽²⁾ that the fact of incitement is a matter to which the courts should give full weight in mitigation when deciding the appropriate punishment which should be imposed upon the person who was incited to commit the offence.

28. In accordance with section 84 of the District Court Ordinance we reverse the order of acquittal, record a conviction and direct that the trial be resumed and concluded by the judge on the basis of the order which we have made.

(1)    [1974] 60 Cr.App.R. 59.

(2)    [1979] 2 All E.R. 1222.

(3)    [1980] A.C. 546 PC.