HKSAR v. L.C.L. AND OTHERS

[English Translation - 英譯本]

CACC 193/2021 and CAAR 13/2021, [2023] HKCA 1301

From：[2021] HKCFI 2818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 193 OF 2021

(ON APPEAL FROM HCCC NO. 126 OF 2020)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 13 OF 2021

(ON APPEAL FROM HCCC NO. 126 OF 2020)

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(Heard Together)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court):

Index  Paragraph

Introduction......................................................................................... 1

Applications of D1, D3 and D4 for leave to appeal against convictions.. 8

D4’s “application to treat the abandonment of appeal as a nullity”.... 20

Grounds of appeal of D1, D3 and D4.............................................. 34

On the legal issues of the prosecution making a closingspeech in the absence of defendants’ testimonies............................. 36

The applicants’ submissions........................................................ 37

The respondent’s submissions..................................................... 41

Our view........................................................................................ 43

R v Bryant and HKSAR v Leung Chun Kit Brandon...................... 47

Length and content of the prosecution’s closing speechin the present case....................................................................... 58

D1’s application for leave to appeal against sentence andthe Secretary for Justice’s application for review of sentences of D1, D3 and D4 .............................................................. 85

D1’s grounds of appeal................................................................... 86

DoJ’s position on the applications for review of sentenceson D1, D3 and D4.......................................................................... 88

Submissions from D1, D3 and D4................................................... 91

The court’s view............................................................................. 98

The totality of D1’s sentence in respect of Charges 1 and 2 and deduction of period of remand from the previous case.................................................. 116

Final sentence........................................................................... 124

Introduction

1.  There are 5 defendants in the present case.  According to the amended indictment[1], L.C.L. (known as D1 in this judgment), L.M.Y (D3), L.C.Y. (D4)  and L.C.F. (D5)  (collectively “the applicants” in CACC 193/2021)  were jointly charged with one count of “conspiracy to pervert the course of public justice”[2] (Charge 1), the particulars allege that on certain days between 8 October 2018 and 23 January 2019 (both dates inclusive), the four of them conspired to pervert the course of justice, namely to cause X to change the testimony she intended to give at the trial of HCCC 162/2018.  Moreover, D1 and W.H.P. (D2)  were jointly charged with one count of “doing an act tending and intended to pervert the course of public justice”[3] (Charge 2), the particulars allege that on 20 October 2018 in Hong Kong, they intended to pervert the course of public justice by performing a series of acts which tended to pervert the course of public justice, namely to cause D2 and X to leave Hong Kong and intended to cause them not to testify in HCCC 162/2018 as prosecution witnesses.

2.  D2 is D1’s wife, and X is their daughter. X was 14 at the material time.  D3 is D1’s mother, and D4 is D1’s younger brother.  All the defendants pleaded not guilty.  After a trial before Hon Alex Lee J (the trial judge)  the jury found D1 guilty of Charge 1 and Charge 2, D2 of Charge 2, and D3 and D4 of Charge 1. All the verdicts were unanimous.

3.  Having heard the mitigation, the trial judge sentenced the convicted defendants to the following sentences on 23 August 2021:

Defendant	Charge 1	Charge 2	Total
D1	6 years 6 months	4 years 9 months	6 years 6 months (sentences to run concurrently)
D2	-	3 years 9 months	3 years 9 months
D3	4 years 9 months	-	4 years 9 months
D4	4 years 9 months	-	4 years 9 months

4.  D1 applied for leave to appeal against convictions and sentences.  D3 applied for leave to appeal against conviction out of time.  D4, whilst originally applied for leave to appeal against conviction, later submitted a Notice of Abandonment.   On the same day his appeal against conviction was formally dismissed.  D4 now applies to this court to nullify his abandonment and to allow him to resume his application for leave to appeal (“the application to nullify the abandonment of appeal”).

5.  The Secretary for Justice was of the view that the sentences on D1, D3 and D4 were far from being able to reflect the gravity of the offences in the present case, and that they were erroneous in principle and/or manifestly inadequate. They applied for leave to appeal against the sentences in accordance with section 81A, Criminal Procedure Ordinance, Cap. 221.  The application was granted on 29 September 2021, and on 17 January 2022 the Court of Appeal directed that the two cases be heard together.

6.  After the hearing, in relation to CACC 193/2001:

1.  D1’s and D3’s applications for leave to appeal against convictions were refused;

2.  D4’s application for the nullification of the abandonment of appeal was refused; even if the application had been granted, this court would also have refused his application for appeal against conviction;

3.  D1’s application for leave to appeal against sentences was refused;

4.  The appeal in CACC 193/2021 was dismissed.

7.  In relation to CAAR 13/2021, we found that the sentences were wrong in principle and manifestly inadequate.  We granted the application for review against sentence and ordered the original sentences be set aside.  We replaced that by 9 years and 6 months imprisonment for D1, and 6 years imprisonment for each of D3 and D4.

Applications of D1, D3 and D4 for leave to appeal against convictions

The prosecution case

8.  X was born in Shenzhen in December 2003.  X and D2 came and settled in Hong Kong in 2006 and 2009 respectively.  They lived with D1 and D3 in a public housing unit in Fanling.  In 2012 D2 gave birth to D1’s son, LH.

9.  On the evening of 14 October 2017, D2 accompanied X to make a report in Sheung Shui Police Station.  X made a complaint that D1 raped her in the residence in Fanling earlier that day.  D1 was arrested on the subsequent day.  During a video-recorded interview with the police on 16 October, X accused D1 of rape and indecent assault.

10.  D1 was remanded in Lai Chi Kok Reception Centre since he was charged on 17 October in the same year.  In HCCC 162/2018, “the case”, D1 was charged with 2 counts of raping and 5 counts of indecently assaulting X.  It was originally set down for trial before Hon Anthea Pang J (as she then was)  (Pang J)  on 25 October 2018.  D2 and X received summonses from the court, and on 5 October 2018 D2 accompanied X to the court for a pre-trial visit.

11.  Five days prior to the commencement of the trial, namely on 20 October 2018, D2 had taken LH along to visit D1 at Lai Chi Kok Reception Centre.  Thereafter, she left Hong Kong via Lok Ma Chau Control Point on the same day at 4:29 p.m. with X and LH and vanished after their arrival in Shenzhen.  They did not attend the trial of the case on 25 October.  The date originally set down for trial was vacated on 2 November 2018.

12.  In the evening of 4 November 2018, D2 brought along X and LH to return to Hong Kong via Lok Ma Chau Control Point from Shenzhen.  She was immediately arrested by the police for the offence of “contempt of court”.  Under caution, she indicated she understood and remained silent.  Before Pang J, D2 admitted under oath that she intentionally avoided testifying in court, because she was afraid that reporters might report the personal particulars of her family and did not want to wash dirty linen in public.  The case was re-fixed to be tried on 18 January 2019.

13.  On the morning of 21 January 2019, X was called to testify.  After her video-recorded interview was played in court, she agreed under cross-examination by counsel representing D1 that D1 did not rape or indecently assault her.  Instead she said the content stated in the video-recorded interview made earlier was all her fabrication.  On 23 January 2019, Pang J ruled that there was no prima facie case in respect of all 7 charges of the case (“the first case” in the following).  D1 was subsequently released.

14.  On the evening that day, D1, D2 and D3 were arrested in succession for the offence of “perverting the course of public justice”.  Under caution, D1 said, “I did not do it”, D2 said, “I understand”, and D3 said, “Nothing to say”. The police arrested D4 for “conspiracy to pervert the course of public justice” on 1 February 2019.

15.  X was granted immunity in the present case and she testified in court.  The prosecution also relied on the video images, audio recordings and the transcript in Chinese of the audio recordings[4] during the 9 days of D1’s remand, from 8 October 2018 to 19 January 2019, in Lai Chi Kok Reception Centre.  Such evidence was admitted as testimony of the present case by way of admitted facts.

16.  The prosecution alleged that D1, D3 and D4 (Charge 1)  conspired as early as 8 October 2018, when D3 visited D1 and D1 expressed to D3 that the expert report showed that D1 was innocent, to 23 January 2019 when D1 was finally released.  To ensure that he would be acquitted, D1 requested help from D3, D4 and D5 (D1’s father)  to think of ways during this period to make X change her testimony against D1. The prosecution took the view that although D1, D3, D4 and D5 did not blatantly discuss the details of the conspiracy during those visits, the video and audio recordings in question could show that there were obscure language, gestures and written notes during their communications.  Although each of them might have joined the conspiracy at different stages during the material time of Charge 1, they all took part in the conspiracy to pervert the course of public justice.  Moreover, D3, D4 and D5 even performed overt acts to further the conspiracy with D1.

17.  According to X’s testimony, during the time she was in Shenzhen with D2, D3 did go to Shenzhen and did her small favours.  After she returned to Hong Kong from Shenzhen, D3 made implicit suggestions to X at X’s home asking her to play dumb[5].  D4 told X to wear heavy make-up[6], not to tell the truth[7], pretend that she did not know and play dumb[8] when she testified in court for the rape case.  Shortly before the trial re-commenced on 18 January 2019, there were the “park incident” and “Korean BBQ incident”.  During the “park incident”, D4 played policeman and lawyer to cross-examine X.  D3 and D4 gave her HK$500 and CN¥200 respectively.  In the “Korean BBQ incident”, D3 bought X a Miniso doll and gave her HK$500 for a taxi ride home.

18.  In relation to Charge 2, the prosecution said that D2 took X to leave Hong Kong at D1’s request, with the intention to avoid giving evidence in court against D1 to pervert the trial of the case.  The prosecution relied on the audio recording of D2’s visit to D1 on 20 October 2018, during which D1 repeatedly urged D2 to live at home for two months, not to return to Hong Kong, not to talk on the phone, and not to return to Hong Kong before D1 was released[9].

The defence case

19.  All the defendants elected not to testify.  They mounted their defence by way of cross-examining and impugning X’s credibility to undermine the prosecution case and evidence.

D4’s “application to treat the abandonment of appeal as a nullity”

20.  In his affirmation dated 19 September 2022, D4 submitted that he withdrew the appeal due to the lack of legal advice.  In his affirmation dated 23 February 2023 he further submitted that when he signed and filed the Notice of Abandonment of Appeal, he honestly believed that if he proceeded with his appeal against conviction it would affect the sentence that he was required to serve.

21.  It was contended by Mr Franco B. O. Kuan, counsel for D4, that D4’s signing and filing the Notice of Abandonment of Appeal should not be regarded as “a knowingly deliberate decision to abandon the appeal”, since he thought that pressing on with the appeal would affect his sentence.  He did not clearly understand the consequence of the signing and filing the Notice of Abandonment of Appeal at that time.  Lacking legal advice there was no opportunity for him to rectify the misunderstanding: HKSAR v Chang Wai Hang Alab[10], HKSAR v Ip Wai Ho Micky[11], HKSAR v Lai Siu Cheung[12] and R v Bridges[13].  The court should deem such an abandonment null and void.

22.  The respondent objected to D4’s application for leave to appeal to be restored.  The respondent submitted that D4’s withdrawal of the application for abandonment of appeal was made only after the court hearing on 8 September 2022, and it would seem that the application was made now that he had second thoughts about the chance of the appeal being allowed.  This was not the same as misunderstanding or not understanding the “nature and effect of the notice of abandonment”.  Being an opportunist, D4’s act of abandonment could not be deemed null and void.

23.  At the time of the hearing, we heard D4’s submissions on his application for leave to appeal against conviction on a de bene esse basis.  In the end, we refused D4’s application to treat his abandonment of appeal as a nullity.

24.  In the Notice of Leave to Appeal (Form VII), Note 2 states that once the Registrar has received the notice, the appeal is deemed to have been dismissed.  Unless the abandonment of the appeal is treated as a nullity, the Court of Appeal has no inherent jurisdiction to permit the appeal to be reopened.  Note 3:

“Only in exceptional circumstances, where the Court is satisfied that the abandonment was not the result of a deliberate and informed decision, will the Court treat the abandonment as a nullity.”

25.  The following two legal principles in relation to the withdrawal of an abandonment of appeal as summarised in the case Chang Wai Hang Alab applicable to the present case are:

“31. (4)  The only test to establish that an appellant’s act of abandoning the appeal is a nullity is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, in other words, the appellant’s mind did not go with the act of abandonment.

(5)  Whether the abandonment may be treated as a nullity concerns the applicant’s understanding of the effect or consequences of the document he is signing or, perhaps, misapprehending the effect at law of an appeal were he to persist.  An appellant who, properly informed, knows what the document is that he is signing and the effect of it and, with that knowledge, deliberately signs the Notice of Abandonment of Appeal, may not satisfy the court that his act of abandonment is a nullity.”

26.  Paragraph 39 in Chang Wai Hang Alab reads:

“39. As pointed out above, if the applicant gave up the appeal because he was misled by wrong advice that caused him to misunderstand the consequence of insisting on pursuing the appeal, although his act of signing the Notice of Abandonment of Appeal was deliberate, in the eyes of the law, he did not do it knowingly. When an appellant was misled by wrong advice into believing that his sentence may be affected if he insisted on pursuing the appeal, this principle is also applicable. The Court may treat the abandonment of the appeal as a nullity…

40.  However, we are of the view that the applicant had failed to produce evidence to satisfy us that we should accept that he was misled by Mr Chiu (an inmate)  into misunderstanding the consequence of insisting on pursuing the appeal when he signed the Notice of Abandonment of Appeal and that he did not abandon his appeal knowing exactly what he was doing.”

27.  Therefore, an influence of erroneous advice and a misunderstanding of the consequence of insisting on pursuing the appeal are inter-related.  When we considered what was on the applicant’s mind when he signed the “Notice of Abandonment of Appeal” and whether he produced admissible evidence, the related events were consolidated chronologically as follows:

1/9/2021	D4 lodged an appeal against conviction and filed a Notice of Application for Leave to Appeal (Form XI).
21/10/2021	D4 filled out a “Prisoner’s Statement”, personally wrote the statement, indicating that he applied for withdrawal of the appeal and that he understood the consequences of abandoning the appeal.
22/10/2021	D4 signed a Notice of Abandonment of Appeal (Form VII)  in a Correctional Services institution.
8/9/2022	At the hearing the court directed on the issues in the present appeal and invited the respondent to make further submissions.
11/9/2022	D4 filled out a Form XI for a second time.  In Part III of the Form he indicated that after the trial his lawyer informed him that he had no grounds of appeal, therefore he did not apply for an appeal at the time.
19/9/2022	In his affirmation D4 expressed that he did make an application for appeal within the 28 days after the conviction, but withdrew due to lack of legal advice.  On 8 September 2022, he made a fresh application for appeal under the lawyer’s suggestion.
10/10/2022	The court wrote to D4 and returned the Form XI which he had filled out for the second time to him.
28/11/2022	D4’s lawyer filed written submissions to the court and pointed out that D4 abandoned the appeal when he was in lack of legal advice and misunderstood the consequence of insisting on pursuing the appeal, and that a supplemental affirmation would be made on the abandonment of appeal due to the misunderstanding of the consequence of insisting on pursuing the appeal.
13/2/2023	D4 filed an affirmation, confirming that at the time of filing Form VII, he honestly believed that the sentence he was required to serve would be affected if he insisted on pursuing the appeal against conviction.

28.  It can be seen from the above chronology, what D4 said about his state of mind when he signed and lodged the “Notice of Abandonment of Appeal” was inconsistent, smacked of quibble and totally unacceptable.  In any event, it had been made clear in Bridges that:

“… wrong advice as to the prospects of success on appeal does not give rise to a nullity according to the Medway test …”

29.  According to R v Richards[14], if the misunderstanding or wrong advice relates to a fundamental misconception of the nature or effect of the appeal itself, an abandonment of appeal based upon such misunderstanding could be deemed a nullity.  However, the English Court of Appeal also pointed out that even if there was a fundamental misconception of the consequence of the appeal on the part of the applicant, such misconception had to be a material consideration of the abandonment of the appeal on the part of an applicant, so that his abandonment could be deemed to be made “uninformed”.

30.  Lai Siu Cheung has also made it clear that wrong advice regarding the prospect of success is different from that regarding the nature and effect of the notice of abandonment.  D4’s circumstances do not match those of Johnson,[15] cited in Bridges, but bear slight similarity to Green[16]:

“In Green [1989] 1 Qd R 408; (1998)  32 A Crim R 417 the applicant was informed by a welfare officer that his appeal was unlikely to succeed and without the benefit of legal advice, he decided to abandon it. In the circumstances his application to withdraw the notice was refuse.” (Bridges, pp. 328-329)

31.  D4 did not maintain his stance.  At first he said that his lawyer told him that he had no grounds for the appeal, that he lacked legal advice, but he finally said that he did not have legal advice and abandoned the appeal due to his misunderstanding of the consequence of insisting on pursuing the appeal.  We are of the view that no credible testimony had been offered by D4.

32.  Even if D4 genuinely thought that insisting on pursuing the appeal would affect his sentence when he signed the Notice of Abandonment of Appeal, unlike Chang Wai Hang Alab, it was not due to an influence by wrong advice so that there was a misunderstanding of the consequence of insisting on pursuing the appeal. First of all, there was no evidence from D4 to show that his misunderstanding of insisting on pursuing the appeal was due to the influence of wrong legal advice.  Moreover, according to section 83W of the Criminal Procedure Ordinance, the court does have the power to make an “order for loss of time” in the appeal against convictions or sentences.  If D4 took this into consideration in deciding to abandon the appeal, then the decision to abandon was made after weighing the pros and cons.  Even if the abandonment was based on advice which was less than accurate or insightful, it did not constitute “a misunderstanding of the consequences of insisting on pursuing the appeal” at all.  This was also what Lord Goddard CJ said in R v Healey[17]:

“… that misapprehension of mistake of fact does not arise if the prisoner has been weighing up his chances and decides it would be more advantageous to him to abandon his appeal and he is then advised that that was an unfortunate decision to make…”

33.  Hence, this court refuses D4’s application to treat the abandonment of appeal as a nullity.  In considering all the defendants’ appeals against convictions, the arguments put forward by D4’s counsel will also be taken into consideration.

Grounds of appeal of D1, D3 and D4

34.  A common ground of appeal from the three applicants is the complaint that the trial judge erroneously allowed the prosecution to make a closing speech or give detailed and intensive arguments in their closing speech when all the defendants involved in the case did not testify or call witnesses and the facts of the case were not complicated or tortuous. This was procedurally improper and erroneous, which deprived the three applicants of a fair trial.  Therefore the convictions were not safe and/or satisfactory.

35.  Mr Kuan, counsel for D4, put forward another ground of appeal[18], that whether D4 did urge X to “speak in accordance with what the lawyer meant her to say”, “not to tell the truth” as X described, was itself already a jury issue.  If the jury could not be sure D4 had said such words to X, and that parts of the audio recordings of the visits could show that D4 might have believed in D1’s innocence, the trial judge should have directed the jury how they should consider whether the charge against D4 was established if they should accept that D4 believed in D1’s innocence.  The trial judge failed to give sufficient and balanced direction, as a result of which D4 did not have a fair trial.  The conviction was not safe and/or satisfactory.

On the legal issues of the prosecution making a closing speech in the absence of defendants’ testimonies

36.  During the hearing for the application for leave to appeal on 8 September 2022, this court raised the following four questions of law in relation to whether the prosecution’s closing speech at the trial affected its fairness:

1.  Question 1:  Is the prosecution entitled to make a closing speech when a represented defendant did not testify or call witnesses?

2.  Question 2: If the answer to Question 1 is “yes”, under what circumstances can the prosecution exercise this right?

3.  Question 3:  If the prosecution takes into account “brevity” mentioned in some cases and “appropriate extent” in some others when exercising this right, what constraints should the prosecution be subject to?

4.  Question 4:  If the prosecution’s closing goes beyond the appropriate extent, how would it affect the appeal?

The applicants’ submissions

37.  On Question 1, namely the prosecution’s right to make a closing speech and its exercise when a represented defendant did not testify or call witnesses, all three counsel agreed that the prosecution was entitled to make a closing speech.  Ms Lam stressed, however, that the prosecution’s right to make a closing speech was only limited to the “right to sum up submissions”, which was different from “the right to reply”.

38.  On Question 2, the applicants relied on HKSAR v Leung Chun Kit Brandon[19] and R v Bryant[20] and pointed out that the prosecution’s right to make a closing speech could only be exercised when the use was obviously demanded in the circumstance of the case, and the prosecution must exercise it sparingly.

39.  On Question 3, the applicants took the view that the prosecution’s right to make closing submissions must be restricted, and a balance should be struck between possible unfairness and the rights of the parties: (1)  the content of the prosecution’s submissions must be brief or appropriately brief; the length and the content should be proportionate to the number and complexity of the issues at trial, and should be kept simple; and (2)  as the prosecution assumes the role of a minister of justice, conformity to the basic principles of a fair trial is of particular necessity.  Ms Lam stressed that the prosecution would be crossing the line in giving inappropriate views or comments on the evidence in the closing submissions.

40.  On Question 4, all three counsel pointed out that, if the prosecution’s closing submissions went beyond the appropriate extent so that the defendants were deprived of the right to a fair trial, the convictions would be unsafe and the court could allow the appeal.  In these circumstances, it was not appropriate for the “proviso” to be used to uphold the convictions of the defendants.  A retrial should be ordered instead.

The respondent’s submissions

41.  The stance of Mr Derek T. W. Lau, Acting Senior Assistant Director of Public Prosecutions representing the respondent, on the four questions of law is as follows:

1.  According to the relevant law, when a represented defendant does not testify or call witnesses, the prosecution is entitled to make a closing speech;

2.  With the principle of a fair trial as the premise in modern jurisprudence, the prosecution is allowed to make a closing speech not only in exceptional circumstances, nor their right to make submissions could be exercised only sparingly.  The discretion rests with counsel for the prosecution to decide whether and how to exercise the right to make a closing speech in accordance with the circumstances of the case;

3.  As long as the principle of fair trial is not compromised, there should be no restriction on the length and content of the prosecution’s closing speech, nor should it be limited to be of brevity.  The length and the content should be commensurate with the issues and complexity of the trial and should not contain unfair comments on any of the parties.  To ensure a fair trial, the judge is obliged to remind the parties that submissions that are unfair to any party or irrelevant should not be made;

4.  Even if there is inappropriacy in the prosecution’s closing speech or it has exceeded what is allowed by the law so that it does not conform to the rules, it does not automatically mean that the Court of Appeal must set aside the convictions.  The court still has to consider whether to apply the “proviso”: HKSAR v Tso Kin Shing[21] and HKSAR v Cheung Ho Kit[22].  The court should take into consideration all circumstances relating to the trial, including the evidence, the issues, the content of the prosecution’s submissions, the reply in the defence’s submissions and the directions the trial judge gave to the jury to assess whether a reasonable and properly directed jury would still convict and whether the prosecution’s inappropriate submissions have caused any unfairness judicially.

42.  In relation to D4’s ground of appeal (2)  Mr Lau replied that there was no evidence in the case to show that the purpose of D4’s interfering with the witness was to persuade the witness not to perjure herself and to speak the truth. On the contrary, according to X’s testimony, D4 had told her not to tell the truth and to play dumb.  Moreover, D4’s defence was that X’s allegations against him were not credible and should not be relied upon.

Our view

43.  On Question 1, namely the prosecution’s right to make a closing speech, all three counsel submitted that in the circumstances of the present case all the defendants were represented but did not testify, the prosecution was still entitled to make a closing speech.

44.  On Questions 2 and 3: whether the above right can only be exercised sparingly and when the need arises with the becoming hallmark of brevity when it is being exercised.  In both R v Berens[23] and R v Holchester[24], the purpose of Blackburn J in restricting the right of the prosecution to make a closing speech when the defendants were represented but did not call witnesses was to ensure a fair trial and to avoid imbalance in ability during the proceedings: that the prosecution will make use of advocacy skills to exert undue influence on the jury in order to win a case.  This legal principle founded more than a century ago was still adopted in Bryant (1977), in which the prosecution’s right to make a closing speech was restricted to “sparingly” and with brevity.

45.  Even today, to avoid this phenomenon of imbalance, this principle is still observed in cases where unrepresented defendants have not testified.  In Tso Kin Shing, the Court of Appeal pointed out that:

“5.8 …when the outcome of a case hinges on findings of fact, which in turn depends upon the choice made by the jury between conflicting evidence given by the prosecution and by the defence, the advocate will undoubtedly play a highly influential role in the verdict to be returned by the jury. In our view, there is usually a difference, in terms of the ability to convince the jury, between a person who has received professional training and an unrepresented defendant. In order to redress this considerable imbalance in ability, a workable method is to disallow the prosecution to make a closing speech to the jury. This is a fair rule and a rational approach.”

46.  In particular, the Court of Appeal stressed in Tso Kin Shing that “[t]he decided cases show that the prosecution’s right to make a closing speech differs depending on whether a defendant is legally represented.”[25]

R v Bryant and HKSAR v Leung Chun Kit Brandon

47.  In Bryant[26]Watkins J said:

“Prosecuting counsel in the case of a defendant who is himself represented by counsel and gives no evidence and calls none has the right to sum up the prosecution’s evidence, or in modern parlance, to make a closing speech at the close of that evidence. It is, however, a right which in our opinion should only rarely be necessary to use save possibly in long and complex cases and whenever used should bear, as should the majority of speeches by prosecuting and defence counsel, the becoming hallmark of brevity.” (emphasis added)

48.  The Court of Final Appeal cited Bryant in Leung Chun Kit Brandon, but it must be noted that the issue focused in Leung Chun Kit was the situation where an unrepresented defendant in a criminal trial did not testify nor call witnesses so that the prosecution lost the right to make a closing speech, which is different from the present case fundamentally.  In Leung Chun Kit there was no in-depth discussion and analysis of the prosecution’s right to make a closing speech when a represented defendant does not testify.  Paragraph 31 of the judgment serves to quote the view of the Court of Appeal in England on the prosecution’s right to make a closing speech when a represented defendant does not testify.  Therefore, Leung Chun Kit Brandon did not decide on whether Bryant is applicable to the criminal justice system in present-day Hong Kong.

49.  Nevertheless, one can see that in the above paragraphs cited from Bryant (in particular the parts with emphases added), the closing speech of both the prosecution and the defence should never be lengthy.  The requirement of “brevity” is not only restricted to the prosecution’s speech but also to that of the defence.

50.  In Man Ching-ip & Others v The Queen[27], the Hong Kong Court of Appeal confirmed that section 2 of the Criminal Procedure Act 1865, under which the prosecution was entitled to make a closing speech when the defendant was represented, was applicable to the practices and procedures of the criminal cases and matters in England, and by way of section 9(3)  of the Criminal Procedure Ordinance became applicable in Hong Kong:

“… there can be no doubt that such a speech has in fact been allowed here long enough for it to be said that it is an established practice and should not be a ground for quashing a conviction…”

51.  Bryant was quoted in Man Ching-ip to show that many changes have taken place in the development of criminal justice procedure since Bryant:

“Whatever the correct approach we are satisfied that the judge was not wrong to allow a closing speech to the prosecution here. It may be noted that the term ‘closing speech’ replaces two elements which formerly were distinguished – the right to sum up the evidence and the right to reply to the speech of counsel for the defence: see Reg v Bryant. By virtue of s.56 of the Criminal Procedure Ordinance the true right of reply has been abolished and counsel for the defence is, in all cases, entitled to the last word.”

52.  In fact in the later case of R v Hoggard[28], the English Court of Appeal made it clear that the fairness of the trial is the court’s paramount consideration.  Fairness of trial included procedural fairness, both to the prosecution and the accused:

“… When Bryant and Oxley was decided it was still unusual for a defendant represented by counsel not to go into the witness box. During the intervening years it has become markedly less unusual, and the practice has grown up of the defence seeking to rely on self-serving statements, usually made in the course of tape recorded interviews or on suggestions or allegations introduced in the course of cross-examination of prosecution witnesses… When there is such reliance of mattes are put to witnesses which are in effect a defence unsupported by other evidence it will in our view generally be appropriate for the Crown to make a closing speech in order to deal with them. The length of that speech should be commensurate with the number and complexity of the issues that have arisen, and there is also in the judge a discretion to given an indication to counsel if in the view of the court counsel is over-stepping the statutory right to make a speech closing the prosecution case…

… There were matters that needed to be dealt with…for tidying up matters which were put in cross-examination…when issues have been raised which create confusion or uncertainty, but which can be put into order so that the jury can properly apprehend them, then the interests of justice require that the Crown should be given an opportunity to put matters in the way in which they invite the Jury to approach them at the end of the trial…”

53.  It is readily seen that in a present-day criminal trial, even if the defendant did not testify or call witnesses, the defence counsel will still be able to persuade the jury to adopt a favourable view towards the defence by way of his presentation of the facts of the case, his ability and skills in cross-examining witnesses or reliance placed on the defendant’s exculpatory statement under caution: see Hoggard above.  Whilst counsel for the applicants stressed that the prosecution’s closing speech was a second speech from the prosecution, yet at the time of the opening the prosecution would not have known in advance the defence or what criticisms the defence would have of the prosecution witnesses.  Therefore, during the opening speech the prosecution would only generally state the evidence they were going to adduce in the opening.  Restricting the prosecution’s right to make a closing speech may deprive the jury of  the appropriate assistance as the prosecution will not be able to give an adequate account of their arguments and those in rebuttal of the defence’s.  Thus, the jury may be more readily led to accept the defence’s assertion on defence counsel’s advocacy.  This is in complete contradiction to the concept of a fair trial and fails to ensure fairness in the judicial process.  Furthermore, a judge cannot take over the role of the prosecution to over-elaborate the prosecution’s stance in his summing-up either; or else it would give an objective bystander the impression of the judge overstepping with bias and assuming the role of the prosecutor.  To understand and to apply what is said in Bryant about the prosecution not permitted to make a closing speech or to keep the speech brief, one has to suit the requirements for a fair trial in modern jurisprudence, as what is emphasized in Hoggard.

54.  As to the length of the prosecution’s closing speech and whether its content is to commensurate with the number and complexity of the issues, Mr Li requested this court for directions that the closing speech of the prosecution when a represented defendant did not testify could cover the following:

1.  an account of the legal issues in question and the statutory interpretation;

2.  when an erroneous account had been made and required amendment;

3.  where there existed evidence which departed from the prosecution’s opening and required an explanation;

4.  when an argument put forward caused confusion or uncertainty, but could be better arranged and organised to facilitate correct understanding by the jury;

5.  to better organise facts that the defence put as their case during cross-examination;

6.  when there were inconsistencies or omissions in the evidence of the prosecution witnesses when they were cross-examined;

7.  when the defence relied on self-serving statements or put their case which was not supported by other evidence to a prosecution witness.

55.  Ms Lam went on to submit that the prosecution should not make biased, partial or erroneous statements of the evidence; Mr Kuan, on the other hand, submitted that the evidence set out by the prosecution expounding their stance in the speech had to be objective and no colourful or embellished words or phrases should be used.  The applicants also submitted that for the sake of fairness, should the prosecution wish to make a closing speech when a represented defendant did not testify, an application should be made to the court in advance.  However, counsel also agreed that such a representation or requirement was not supported by authorities in any common law jurisdiction.

56.  Mr Lau agreed that the seven items pointed out by Mr Li were appropriate, but his view was that it was not an exhaustive list and that circumstances varied from case to case.

57.  We are of the view that a criminal trial entails numerous variables concerning witnesses, evidence as well as examination. Generalisation is not appropriate.  No hard and fast directions on what to include in the prosecution’s closing speech should be given.

Length and content of the prosecution’s closing speech in the present case

58.  The audio recording of the trial of the present case showed that X’s examination in chief went on for about 3 days, and cross-examinations by the four counsel (including counsel for D5 who was acquitted)  took about 5 days.  X was cross-examined down to the minute details. A number of defence allegations were put forward through the cross-examination of X.  They included no coaching by the various defendants to perjure in court, whether X conspired with PW2 to make false accusations against the various defendants, and so on.  Each counsel’s focus on cross-examination was different.  Counsel for D1 focused on the relationship between X and D1, the reason for X to go to Shenzhen with D2 on 20 October 2018, and suggesting to X on what D1 alleged she had said during her three prison visits, and X was also cross-examined on the transcript of her testimony in court on 19 January 2019.  Counsel for D3 focused on whether D3 was in the habit of giving birthday presents to X, D3’s participation in the “park incident”, the intention of D3 giving X a red packet in the “Korean BBQ incident” and whether on 23 January 2019 X used the “wish list” as the quid pro quo with Inspector Tong.  D4’s cross-examination on X focused on D4’s role in the “park incident”, whether on seeing her mother being arrested on 23 January 2019, X was worried about where she and her younger brother would end up and therefore decided to provide the police with assistance, and why X did not mention D4 but only incriminated D3 in her first statement, and it was not until her statement on 29 January that she incriminated D4 and D5 for the first time.

59.  It can be seen from this that the evidence against D1, D3 and D4 mainly came from X’s account of the overt acts of the three of them and the audio recordings of the numerous prison visits made to D1 by D2, D3 and D4 (P13).  Contrary to the submissions made by Mr Li and Ms Lam that the timeline and chronology of the present case are clear and not complicated, we find the facts of the present case intricate and involving with a number of people. From D1’s arrest on 15 October 2017 to the time before the commencement of the first trial on 25 October 2018, D2, D3, D4 and D5 paid numerous visits to D1 respectively. Part of their conspiracies and the overt acts alleged by the prosecution took place during this period of time.  D2 even took X and her younger brother to Shenzhen 5 days before the first trial was due to commence.  It was also the prosecution submission that during the period D2 and X were in Shenzhen, D3 also went to Shenzhen and perform overt acts of conspiracy on them; later on 4 November after D2 brought X and the younger brother back to Hong Kong to the time before the first trial, which was rescheduled to commence on 18 January 2019, the “park incident”, the “Korean BBQ incident” took place; the prosecution also relied on the conversations of D4 and D5 with D1 during the revisits to support the conclusion that the conspiracy was reached.  X’s testimony in court on that occasion was also the focus of cross-examination in this trial.

60.  The audio recording showed that the prosecution’s speech included an explanation of the charges, the legal definition of a conspiracy and the types of evidence the prosecution had adduced.  23 minutes was spent on revisiting X’s testimony and an analysis of its credibility, 66 minutes was spent on a summary of a total of 9 prison visit recordings in P13 and to marry them up with X’s testimony, and the total length was not 3½ hours as Mr Li suggested but rather about 2½ hours.  In contrast with the defence’s speech, which lasted as much as 3 days, the length of the prosecution’s closing speech was neither excessively lengthy, nor was it disproportionate to the number of issues at the trial and their complexity.

61.  Counsel for D1 and D3 also complained that in the closing speech the prosecution was wrong to describe some of the contents in P17, the transcript, as obscure and coloured with personal interpretations giving erroneous accounts, which led to an unfair trial.

62.  The prosecution’s closing speech should not offend the basic tenets of trial advocacy:

“35. We can only stress that counsel in their closing addresses to the jury must be very careful about what they say to them and not offend the basic tenets of trial advocacy, or more particularly, the fundamental principles of fairness, especially when acting as prosecuting counsel where his or her sole purpose in a criminal trial is to perform the very important function of a minister of justice…” HKSAR v Nguyen Anh Nga (No.3)[29].

63.  We need to first consider whether the prosecution’s closing speech is coloured with erroneous accounts as the applicants described; and if so, whether that is in violation of the principle of a fair trial and whether the defendants were accordingly deprived of a fair trial.  It is pointed out in Randall v The Queen[30] that a defendant’s right to a fair trial is absolute, but the court took the view that:

“28. …it is not every departure from good practice which renders a trial unfair…It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice.”

64.  Lord Bingham of Cornhill pointed out that the court would only find a trial unfair and the conviction unsafe when the departure was persistent, prejudicial and grossly overstepping the line so that it was irremediable:

“… There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe…”

65.  In HKSAR v. Chan Sau Man[31], the Court of Appeal dealt with the appellant’s complaint against the trial prosecuting counsel for her repeated and inappropriate expression of personal views towards the evidence in the case.  The defendant was alleged to be “not an innocent young man”, “a big shot with his BMW car” and “fancied his chances”.  The Court of Appeal was of the view such emotive language was in fact unfortunate and was inconsistent with good advocacy, but not to the extent of causing unfairness in the trial.

66.  Now we turn to analyse the complaints raised by counsel for D1 and D3 against what was stated by the prosecution in the closing speech which they said led to an unfair trial.

67.  It was pointed out by counsel for D1 and D3 respectively that during the closing speech, counsel for prosecution made the following overstepping remarks.  Mr Li submitted that during re-examination X repeated a gesture D2 made to her, which D2 understood D1 to mean “doing a runner”, but there was a lack of evidence to show the gesture X described was the same as what was made by D1 to D2.  The prosecution erred in their submissions by twice saying to the jury that there was consistency in the two[32], and as a matter of fact equated the prosecution’s stance with an undisputed fact.  This increased the risk of the jury misunderstanding the evidence and usurped the function of a jury.

68.  Nonetheless, the video footage showing the gesture in question had been produced to court as an exhibit, and the jury had the opportunity to watch the footage in court.  In the summing-up the trial judge pointed out to the jury that[33]:

“X said her mother gestured with two fingers. Ms Cheng said during the video recording on 20 October D1 was also seen doing the same or a similar gesture. You can go back to the video recording yourselves and see whether this is the case. If what X said about her mother making this gesture was true, and when all of you saw on the video D1 was actually seen having a similar gesture, was it a coincidence? Or was D2 repeating the gesture D1 had made to her? If this really happened, can it help the prosecution prove that D2 (the mother)  was executing D1 (the father)’s instruction? This is for you to decide. ”

69.  Mr Li was of the view that the trial judge, by only telling the jury that they “could” revisit the video footage themselves and did not emphasize that they “should” make a comparison was insufficient.  The jury might have overly relied on the transcript and the prosecution’s inaccurate submissions as the basis of their consideration.

70.  However, in relation to the 9 audio recordings and the video footages it was clearly pointed out by the trial judge that[34]:

“… the clips P 13(1)  to (9)  have been played to you for viewing in court, and there are also P13(1)  to (9), the transcripts of the audio recordings. The transcripts are themselves not evidence but only an aid to you. What is evidence are the audio recordings, the video-recorded images themselves, which I have told you previously.”

71.  We are of the view that even if the trial counsel was not totally exact with the “doing a runner gesture” in her submissions, any possible adverse effects had been offset or neutralised by the relevant parts in the summing-up, and it was also the method of “cured by judicial discretion” in Randall.

72.  Ms Lam, counsel for D3, submitted that the prosecution quoted X’s testimony erroneously on two occasions in their closing speech: (1)  in their closing speech the prosecution stated that D3 said to X that X was needed to help D1, when X was under the impression that D3 gave money to bribe her; (2)  the prosecution erroneously requested the jury to infer that D3 did take part in the “tribute-paying-to-the-dead incident”.  Ms Lam was of the view that mere directions to correct the error in the prosecution’s submissions given by the trial judge were insufficient.  The jury should have been directed to pay no heed or any weight to the prosecutor’s submissions which erred in this regard.

73.  During examination-in-chief on the matter of D3 buying her a Miniso doll X said[35]:

“Again, it was her who paid and said to me that – I mean, she gave me the feeling that ‘I have done so much, you should return a favour to me by helping your father.’…

Court:  That was her feeling.”

74.  It can immediately be seen that at the time X gave such testimony the trial judge instantly pointed out to the jury that it was only X’s personal feeling.  When Ms Cheng, counsel for the prosecution, clarified with X, X reiterated that it was her “own feeling”[36].

75.  During the mid-stage of the closing speech, counsel for the prosecution made clarifications on the above two points[37] again at the request of defence counsel, and twice clarified the “tribute-paying-to-the-dead incident”[38].  In his summing-up, the trial judge also pointed out that it was X’s own thinking when she alleged that D3 wanted to bribe her to bail D1 out[39], and that there was no evidence in the case to show that D3 appeared at the “tribute-paying-to-the-dead incident”[40].  We do not agree with Ms Lam’s view, that there was a series of errors in the prosecution’s description of the evidence during the closing speech, which led to a cumulative effect.  It was simply impossible that the jury would mistake X’s thought as direct evidence which proved that D3 intended to use money or gifts to bribe X, and it was also abundantly clear that D3 did not take part in the “tribute-paying-to-the-dead incident”.  Any erroneous account of the evidence in the prosecution’s closing speech had been properly and sufficiently rectified.

76.  Mr Li also pointed out, in particular, that when the prosecuting counsel repeated X’s testimony in her submissions, there was unnecessary emphasis on X addressing D1 as “my so-called father”, which carried a negative connotation.  We have referred ourselves to X’s testimony where she did actually use the wording “so-called father”.  At that point the trial judge also warned X not to bring personal feelings into her testimony.  The submissions by counsel for the prosecution in this regard aimed at repeating X’s testimony without letting any personal touch get in the way:

“… she said, ‘I understand. I do not know how to explain, but I was simply to give a bad impression to the judge so that the judge would not believe what I said and so help my ‘so-called’ father.’ Here she did add: the word ‘so-called’ was not something uncle said, but was her expression of feelings afterwards.”[41]

“… X’s answer was that ‘what they wanted was to save my so-called father. We can’t be family after all. I call him “so-called father” because I no longer want to be related to him.’ We recall this was what X said in court. At that time the judge reminded her, ‘Well, do not add your personal feelings into what you say. You have to state clearly what the person who spoke to you said.’”[42]

77.  Mr Li also pointed out that the prosecution used the term “obscure” on a number of occasions to describe the interaction between D1, D3 and D4 during their visits to D1[43], and improperly led the jury to find that D1 was evasive and withholding something with his words, and that was a statement which carried negativity, hues and a personal stance.  Mr Li suggested that the term “unclear” should be used to replace “obscure”. We are of the view that this complaint is too much of a hypercorrection.  The jury saw and heard P13 being played in court.  With the assistance of the transcript, they must understand what the counsel for prosecution meant by “obscure”.  The jury had a clear idea as to whether what D1 said during the prison visits by the other defendants was obscure, vague or clear and precise, and can decide themselves as to whether there was any hidden connotations, or what D1’s purpose was.  The fact that Mr Li amplified to term them as coloured and negative to complain that the prosecution’s closing speech was biased and unfair.

78.  After the prosecution had given their concluding submissions, the defence did make a complaint to the trial judge against the counsel for the prosecution on her interpretation of the 9^th audio recording:

“Actually what am I asking for now? … I hope that in the summing-up the court will point out in particular that this is purely the interpretation on the part of the counsel for the prosecution.”[44]

79.  The trial judge gave the following instruction instantly at the request of the defence[45]:

“Last week you heard that Ms Cheung, counsel for the prosecution, had quite some views of her own on the audio-recorded conversations. On this point I would like all of you to pay attention to one thing, and that is, do not feel obliged to accept counsel’s submissions… what she has said is not binding on you…. The defence has their own views too, but since the defendant did not have the opportunity to testify in court you should all the more so pay attention to the submissions by counsel for the defence. It is because the defence did not have the opportunity to come forth and tell you what their case was, the interpretation by counsel for the defence is very important to them. Therefore, you should listen carefully.”

80.  Apart from that, the trial judge also gave the following clear direction to the jury in his summing-up[46]:

“… You may take into consideration the arguments the counsel put forward in their submissions, which will include their interpretations on the audio-recorded conversations. If you agree, you could accept them. But if you do not, you do not have to accept them.”

81.  Mr Kuan, counsel for D4, stressed that the trial judge should have first directed the jury to consider whether D4 had acted in the way as X alleged before going on to consider whether D4 was under the genuine belief that D1 was innocent when he said the words and performed the acts as X testified.  We find this a pseudo-proposition, because from the various parts in P13(3), the transcript, D4 could be seen to be exhibiting doubts as to D1’s self-justifying assertions (entries 17, 33, 47, 55).  D4 even questioned why D1’s semen was found at X’s vagina and even requested to peruse X’s physical examination report (entry 65)  and queried the matters set out in the report.  Mr Kuan submitted that the consideration of certain entries were taken out of context.  However, the whole transcript can show positively that there is a complete lack of evidence that D4 believed in D1’s innocence.

82.  We are of the view that the content of the prosecution’s closing speech did not import excessive personal flavour as the appellants submitted.  We are not of the view that the content and length of the prosecution’s account were incommensurate with the number and complexity of the issues that have arisen, nor have they violated the principle of a fair trial.

83.  Mr Li’s last submission was that the prosecution’s submissions ended on a Friday, the defence was only able to reply after the improper submissions by the prosecution were left on the minds of the jury members to settle for two days. However, the other side to the same coin was that the intensive closing speeches given by various defence counsel subsequently, lasting as much as 5 days, were more proximate to the time the jury retired for deliberation and were also able to accumulate exponentially to overwhelm the weight of the prosecution’s submissions in the minds of the jury members.  We reject Mr Li’s submissions in this respect.

84.  We are of the view that be it during the course of the trial or the closing speeches by counsel from both sides, the trial judge did give fair, just and neutral directions to the jury which adequately ensure that the jury’s train of thought was impervious to any improper influence.  There was no miscarriage of justice in the present case as the appellants alleged.  There was nothing unsafe in the convictions of all the defendants.

D1’s application for leave to appeal against sentence and the Secretary for Justice’s application for review of sentences of D1, D3 and D4

85.  We shall deal with D1’s application for leave to appeal against sentences and the application for review of D1, D3 and D4’s sentences together.

D1’s grounds of appeal

86.  Regarding D1’s application for leave to appeal against sentences, he complained in his Notice that (1)  the trial judge passed heavy sentences without full comprehension of his culpability; and (2)  the trial judge erred in not ordering the two sentences to run concurrently.  At the hearing, D1 stressed that the trial judge erred in not ordering any reduction for the 466 days remand in the previous case.

87.  Mr Lau relied on his written submission in the application for review of sentence and contended that the overall sentence of 6 years and 6 months for D1 was manifestly insufficient and too lenient rather than being manifestly excessive.  It was far from being able to reflect the gravity and the extent of abhorrence of the offences D1 had committed.

DoJ’s position on the applications for review of sentences on D1, D3

and D4

88.  Mr Lau put forward the following three grounds:

1.  The sentences the trial judge passed on D1, D3 and D4 were insufficient in terms of punishment and deterrence, and had underestimated the gravity of the offence of perverting the course of justice in the present case;

2.  The sentences passed on the three of them in relation to Charge 1 were erroneous in principle and manifestly insufficient;

3.  In respect of D1’s two charges, the trial judge erred in applying the totality principle.

89.  Mr Lau submitted that the legislative amendments in 2008 showed a more stringent attitude towards sentencing of the offence of perverting the course of justice was adopted by society and the legislature. There are cases which clearly pointed out that when passing sentences on the offence of perverting the course of justice, the courts will take into consideration the gravity and persistence of the perverting and their impact on the administration of justice by the court.  Lengthy imprisonment terms with deterrent effect is called for in cases involving interference with witnesses.  In the present case the defendants have exploited X’s trust on them as X’s close relatives, and succeeded in perverting a trial involving a serious sexual offence causing X to change her testimony in court.  The present offence involved a number of aggravating features: D1 was alleged to have violated a minor victim (of only 14-15 years old); breaching of trust; incest and persistent offending over a prolonged period of time.  The perverting and interfering by D1 and other defendants had spared him a prison term of no less than 10 to 12 years should he be convicted.  The perverting acts spread over a period of 3 months and with certain persistence.  The trial judge failed to sufficiently take into consideration the aggravating factors such as the acts by D3 and D4, which were in serious breach and abuse of X’s trust, and that X had to appear in court twice to testify against her own family members, and took into consideration erroneously the unrelated factors that the two might have committed the crime out of family love, that there was no personal gain, the age of the two and personal circumstances.  The present case is the worst of its kind.  It was not seen that the sentencing principles in HKSAR v Wu Wing Tung[47] were considered in the sentences of the respective defendants.  Mr Lau contended that the appropriate minimum starting point to Charge 1 should be at least 7 years of imprisonment, as D1 was the instigator of the whole conspiracy and had persuaded his relatives so that he was able to get away with the trial, as in R v McCalla (Trevor)[48].  Mr Lau suggested that the appropriate sentence for D1 on Charge 1 should be upward adjusted from an at least 7 years of imprisonment to at least 9 years.

90.  Mr Lau also submitted that by ordering for D1’s two sentences to run concurrently D1’s actual overall culpability was not sufficiently reflected.  Moreover, Mr Lau complained that the trial judge should not have deducted the 460 plus days remand for D1’s trial of rape from his total sentence.

Submissions from D1, D3 and D4

91.  D1, D3 and D4’s counsel were all of the view that the sentences on these defendants were not wrong in principle, manifestly inadequate or too lenient.  The sentences passed were within the appropriate sentencing range.

92.  On behalf of D1 Mr Li submitted that the trial judge had correctly taken into account the sentencing principles set out in R v Reynolds Thomas Tunney[49].  D1’s acts only involved simple tactics and were not persistent.  Although D3’s and D4’s acts involved breach of trust, they were only “soft skills” instead of “hard skills”.  The 3^rd factor in Tunney is whether the interfering behaviour succeeded in justice being perverted.  The fact that X was required to testify at trial had already been factored in, and manifested in D1’s failure to enjoy any discount after his conviction after trial.  That X had testified twice should not be given any or too much weight.

93.  Mr Li was of the view that no authorities with similar facts had been put forward by the applicant to support his stance on a sentence of 7 years or one that was significantly heavier, and in any event there are no sentencing tariffs for the offence of perversion of the course of justice.  Mr Li did not contest the principles mentioned in McCalla, but submitted that the sentence passed on each of the defendants was already able to reflect the overall gravity and the differences amongst their roles.

94.  In particular, Mr Li submitted that the trial judge exercised discretion in deducting 2 years out of an overall sentence of 8 years and 6 months in consideration that the actual remand of more than 460 days was equivalent to a sentence before deduction due to good conduct.  An appeal court should not interfere with a trial judge’s exercise of discretion too readily, unless a grave error is involved and no reasonable court would have exercised such discretion.  Stepping backwards, the consideration would be whether a crushing sentence would result if the discount had not been given in passing the sentence.  Moreover, the trial judge correctly stated that he would not take into consideration whether D1 should be convicted on the original charge, therefore D1’s remand in the previous case should not be deemed as a factor to D1’s disadvantage.  Therefore, there was nothing erroneous in what the trial judge had done, not to mention a grave mistake which would require intervention from the Court of Appeal.

95.  Ms Lam, counsel for D3, submitted that the trial judge sentenced D3 on the factual basis that D3’s purpose was to exonerate D1.  Ms Lam did not contest that the offence of perverting the course of justice is a serious offence, and a custodial sentence is warranted for circumstances of the present case.  However, D3’s sentence was heavier than the defendants in Tunney and HKSAR v Chong Choong Leong[50], and the suggested minimum 7-year custodial sentence, which is equivalent to the sentence imposed on a defendant convicted for rape or gross indecent assault, lacked the support from any authorities.  She stressed that D3, currently 70, suffering from geriatric diseases and of reduced mobility, was extremely remorseful for her deeds.  She had finished serving time and was discharged on 23 March 2022.  It was submitted that even if the Court of Appeal was of the view that her original sentence was insufficient to reflect the gravity of her culpability, there will inevitably be some discount on a sentence review and the resultant sentence might not be very different from the current one.  Therefore, there is no need to interfere with the trial judge’s sentence and the court should refuse the present application for review.

96.  Mr Kuan, counsel for D4, contended that the suggestion of a minimum sentence to be 7 years was only a figment of the imagination of the applicant.  The trial judge did not rule out the possibility that initially D4 could have believed in D1’s innocence and his unquestioned filial piety to D3 to be out of good faith and fatuity, so D4’s criminality could be distinguished from those commonly seen in other cases of perverting the course of justice. This factor, therefore, was particularly worthy of consideration.  Moreover, in the present case it was D1 who was the instigator and D4’s overt acts did not involve any threats or doing injustice to the innocent.  He had served his entire sentence by 1 April 2022 and was discharged.

97.  The sentence of 4 years and 9 months imposed by the judge was on the basis of a correct understanding of the facts against D4, a consideration of all the related factors and a proper exercise of discretion to accord weight to each of those factors correspondingly.  The sentence is not manifestly insufficient or inappropriately lenient, and not erroneous in principle.

The court’s view

98.  Perverting the course of justice is a serious offence, as it involves acts which pose as a direct challenge to the fundamentals of a societal institution under the rule of law and affects the administration of justice by the courts.  Public confidence in the criminal justice system would be shaken if offenders of this offence can get away with this.  As there are marked differences in terms of the commission and the means deployed in this type of cases, no sentencing tariffs have been laid down by the court.  The gravity of each case is different according to different circumstances.  In HKSAR v Brian Alfred Hall[51], the Court of Appeal pointed out that:

“49. … This is a type of offence which can be committed in such a variety of circumstances and by such widely disparate devices, that meaningful comparisons are difficult…”

99.  It should be noted that after the legislative amendment in 2008, the Court of First Instance is not bound by the original maximum sentence of 7 years when passing sentences in this type of cases.  The sentencing in the past cases, therefore, should be considered from this perspective.

100.  A detailed exposition of the sentencing guidelines in Tunney in relation to this offence can be found in HKSAR v Wu Wing Tung[52]:

“37. Cases have shown that the seriousness of the substantive offence to which the perverting of the course of justice relates is one of the factors which affects sentence, and other factors include the degree of persistence in the conduct in question by the offender and the effect of the attempt to pervert the course of justice or the course of justice itself: see R v Reynolds Thomas Tunney [2007] Cr App R(S)  91.”

101.  Stuart-Moore, VP pointed out in Brian Alfred Hall[53] that:

“49. … Certainly, the question of the consequences avoided or attempted to be avoided is always an important one to address…”

102.  The consequences and legal responsibilities avoided by the person facing the original accusations or trial is one important factor to consider: Brian Alfred Hall[54].  In McCalla, the defendant originally charged with wounding with intent colluded with another to induce the victim to withdraw the earlier identification of him.  The Court of Appeal concurred with the trial judge’s consideration that the defendant, once convicted, could be sentenced to imprisonment of 9 to 12 years, and pointed out that:

“19. Finally, the court consider the effect of the acts to pervert the course of justice on the course of justice itself. Here it was successful. The defendant was charged with a serious offence and was awaiting trial. Justice dictated that he should stand that trial. Instead, he put into effect a plan to disrupt that process. It did just that and no trial was held.”

103.  Moreover, if the perverting involves interfering of a witness, and the intention of the act in question is obviously for one’s own selfish motive in total disregard of the rule-of-law which caused a serious blow to public confidence in the criminal justice system and the due process of trial, a deterrent and lengthy term of imprisonment is called for to mark the public abhorrence of such an act of purposeful interference of the criminal procedure and to deter others from doing likewise: HKSAR v Kanjanapas Chong Kwong Derek and others[55].  As clearly pointed out in R v Younis[56], even an inducement without threat is serious in itself:

“In some cases, even the making of a substantial inducement without threats may be treated as a serious matter because the object is to interfere with the trial where the alleged offence is very serious.”

104.  The Court of Appeal, in Brian Alfred Hall, citing Attorney General v Yeung Sau Shing[57], pointed out that:

“52. … this category of offence…strikes at the very heart of the system by which law and order is enforced in society. If it were to succeed to any appreciable extent, it would completely destroy public confidence in that system. Strong measures are needed to preserve that confidence…”

105.  Applying the factors to be considered in the sentencing as set out in Tunney, the offences with which D1 was originally charged involved a number of aggravating factors.  Once convicted, he would be looking at 10 to 12 years’ imprisonment as they are indeed serious offences.

106.  As to persistence, about half a year since D1’s remand in Lai Chi Kok on 18 October 2017, he already started trying to persuade X to change her stance when D2 brought along X to visit him.  Between 5 to 19 October 2018, D1 misled D3 and D4, who visited him in prison, on the content of X’s medical report by implicitly or explicitly requesting them to help interfere with X’s giving evidence in court.  On 20 October of the same year, he hinted to D2 to take X away from Hong Kong, so that the trial originally fixed for 25 October 2018 would be aborted due to the unavailability of the main witness.  Later, D1 continued to make hints to D3, who visited him in prison, to prevent D2 and X from returning to Hong Kong.

107.  After D2 had brought X back to Hong Kong on 4 November in the same year, the case was re-fixed for trial on 18 January 2019.  Before the trial commenced, D1 hinted to D4 and D5 during a prison visit that they had to direct X as to how to answer questions put by the counsel representing him in court.  D4 said that they would try their best.  Eventually, on 23 January 2019 the court ruled no prima facie against D1, and he was acquitted.

108.  From these one can see that D1 manipulated the other defendants on numerous occasions into perverting the course of justice.

109.  Regarding D3, according to X’s testimony, when D2 and X were still in Shenzhen, D3 already went over there to offer her various small favours.  When D2 and X returned to Hong Kong, the “park incident” and the “Korean BBQ incident” then took place.  5 days before the trial commenced, during prison visit he also expressed that he would “do what he can when the time comes”.  The trial judge correctly pointed out that in relation to the two charges, the acts of the individual defendants were premeditated and persistent to a certain extent[58].

110.  The actual influence of the acts themselves on the perverting the course of justice could be seen in X’s testimony being compromised as a result of the acts by the individual defendants under concerted effort, causing her to overturn her accusations of rape against D1 at the trial.  The aim of the conspiracy by the various individuals was achieved.

111.  D1 was no doubt the mastermind and orchestrator of the whole conspiracy to pervert the course of justice and was the ultimate beneficiary in the entire scheme.   According to McCalla:

“20. … Given that the defendant was the orchestrator of the conspiracy, involved two others in it and was the beneficiary of it, we consider it entirely appropriate that he received a significantly longer sentence than any of his co-accused.”

112.  In fact, and as all counsel also agreed, they were unable to find any authorities on facts of the extent of gravity similar to the present case, involving the victim being induced or pressurised to overturn her own testimony.  We are of the view that a young victim being pressurised by her own family to cause her to overturn her own testimony in court will have profound effects on her values during her formative years and therefore, the facts are particularly serious. That the trial judge adopted 6½ years as the starting point for Charge 1 on D1 did not sufficiently reflect his comment that “the present case is of rare gravity in the same category and has reached an appalling level.”

113.  This court accepts 9 years as the starting point for Charge 1 in respect of D1 as suggested by the applicant for the review.  The sentence on Charge 2 is not subject of the present review.  This court will adopt the trial judge’s 4 years and 9 months as the starting point.

114.  The trial judge has also correctly pointed out that[59]:

“D1 was the mastermind in Charge 1, and I do not wish to differentiate D3’s role and culpability from those of D4’s… both were part of the conspiracy in question…the reason why X changed her original testimony during D1’s trial was at least to a certain extent attributable to D3’s and D4’s words and deeds to her on different occasions.”

115.  However, the trial judge was wrong in taking into account that the acts of D3 and D4 were probably “based on the misdirected family love (towards)  D1, and probably out of D4’s empty-headed filial piety towards D3.”[60]  The fact that family members formed a united front could cause even more harm to X who was helpless than a stranger could, and misguided kinship or empty-headed filial piety is simply no mitigating factor in the present case.  Although a family member managing to avoid prison terms might not necessarily entail financial gains for D3 and D4, there must be a certain extent of intangible and personal benefits.  We are of the view that the starting point for them in respect of Charge 1 should be imprisonment of 7 years.

The totality of D1’s sentence in respect of Charges 1 and 2 and deduction of period of remand from the previous case

116.  Taking into account the totality principle, the trial judge was of the view that the global sentence for D1 on Charge 1 and Charge 2 should be approximately 8 years and 6 months.  However, as D1 had been in remand for 466 days for the previous case, in exercise of his discretion it was ordered that the sentences on the two charges to run concurrently.  The total sentence was imprisonment of 6 years and 6 months.

117.  First of all, although Charge 1 and Charge 2 carry the common goal to spare D1 the trial, these are two separate charges.  In Brian Alfred Hall, Stuart-Moore V-P made it clear that when deciding whether the sentences on different offences should run concurrently or consecutively, the important consideration for the court would be that:

“… each was separate in time and objective; …each added to the culpability of the other. That is the key test and whatever individual sentence was warranted for each charge, that sentence ought in principle to have run consecutively to the sentences on each of the other offences, subject only to an assessment of the appropriate totality and to the maximum sentencing jurisdiction…”

118.  HKSAR v Pau King Kong[61] pointed out the following:

“37. The totality principle invests the judge with a broad discretion to ensure that the final sentence he imposes on a defendant does justice in the case before him; justice to the offended and justice to the victims and the community. This involves the court in standing back so that it has the opportunity to view the culpability of the offender from a distance…

…

39. The need to achieve the correct balance was a point made by Stock V-P in Ngai Yiu Ching when he said at 699 [22]:

[22] The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that “the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation”…”

119.  D1 committed the two offences in the present case with the aim of interfering with X’s testifying against him in order to exonerate himself. Charge 2, however, involved D1 hinting to D2 to take X away from Hong Kong so that D1 himself could avoid the trial.  That was different in nature from the conspiracy in Charge 1, which caused X to change and overturn her testimony in the first case.  In these circumstances, we are of the view that the order for the sentences on the two charges to run concurrently is erroneous in principle.  The appropriate way would be to order 2 years in the sentence for Charge 2 to run consecutively to that for Charge 1.

120.  D1 was remanded for a total of 460 days from his arrest to his final release in the first case.  According to section 67A of the Criminal Procedure Ordinance, the prerequisite for a reduction of the pre-trial remand from the sentence is that the order of custody is one that was made “in connection with any proceedings relating to the sentence or the offence for which it was passed, or with any proceedings from which those proceedings arose.”  The 460-day remand was in relation to the first case and not the present one, but the trial judge acceded to the request of the counsel for D1 by taking into account the 460-day remand and exercised his discretion to adjust the overall sentence of 8 years and 6 months, which he was of the view appropriate, downward to 6 years and 6 months.

121.  In fact, trial counsel for D1 also conceded that the reduction under section 67A was not applicable to the present case[62], but he relied on HKSAR v Iqbal Zahid[63] to submit that the court should not shut its eyes to the situation that a deduction of the days in which the defendant lost his freedom before trial was not possible simply because section 67A is not satisfied, and requested the court to exercise its discretion to deduct the entire 460-day pre-trial remand in the first case from the sentence of the present case[64].  Counsel also submitted that from another angle, had the first case and the present case been consolidated and dealt with together, the 460 days would be deducted entirely in accordance with section 67A.

122.  We agree with the applicant’s submission, that the circumstances in the present case are significantly different from HKSAR v Ho Kwok Ho & Another[65] and Iqbal Zahid.  The defendant in Ho Kwok Ho was involved in more than one unrelated case, and part of the remand period was applied to a subsequent case to which an appeal was allowed; one of the defendants in Iqbal Zahid had been subjected to administrative and judicial detentions before the case: the latter involved cases in which he was subsequently acquitted or not charged.  The judge took into account HKSAR v Cheung Lai Sing Dickson[66], which pointed out that if two charges were consolidated onto the same charge sheet, section 67A would then be applicable; moreover, the period in which the defendant was under judicial detention was not short; therefore, an order for a reduction from the time spent on judicial detention was made under discretion.

123.  As the trial counsel for D1 submitted, section 67A was not applicable to the present case.  A reduction of sentence in the present case by way of applying the entire remand before the trial on the first case by discretion was equivalent to bypassing the precondition of the legislation (section 67A).  But the nature of the present case is that it was all a design by D1 for himself and others to carry out acts of perverting the course of justice of a case to which he could be sentenced to long-term imprisonment if convicted to be aborted.  With D1’s serious perverting the course of justice, bypassing the precondition of the legislation to give him the reduction to which he was not entitled would not be consistent with the spirit of the law.  By doing so it cannot reflect what the authorities stressed, namely that this type of cases must be dealt with severely and warrant lengthy, deterrent sentences to punish and deter the like-minded from damaging the foundation of the rule of law.  The fact that defendants who had committed this type of serious offence could still enjoy a reduction of the sentence by way of judicial discretion would send erroneous message to the public.  Moreover, the court must not overlook the fact that the two charges in the present case were actually committed during D1’s 460-day remand.  Just like the commission of another offence whilst on bail, the commission of other offences during the remand for one case is an aggravating factor.  The 2-year reduction to the overall 8½ years which took into account D1’s 460-day remand in his first case was wrong in principle.

Final sentence

124.  For D1, although the 460-day remand in question is basically unrelated to the present case, this court will take this into account.  Since this is a sentence review, a reduction of 1 year will be given by discretion. As he had been discharged before the sentence review hearing (2 June 2023), a further reduction of 6 months will be given by further discretion.  The overall sentence on the two charges is, therefore, 9 years 6 months.

125.  Regarding D3 and D4, as this is a sentence review, this court will give a 1-year reduction by discretion.  The two were discharged in March and April 2002 respectively, a 6-month reduction will be given by further discretion.  Therefore, the sentence on Charge 1 is amended to a prison term of 6 years.   

Translated by the Court Language Section of the Judiciary and vetted by Mr Walter Lee, solicitor.