DCCC298/2005
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 298 OF 2005
Transcript of the audio recording of the Reasons for Verdict at the trial of Kanjanapas Chong-kwong, Derek, also known as Wong Chong-kwong (D1) and 3 Others, charged with Conspiracy to pervert the course of public justice, before H H Judge Fung
Date: 12 - 14 June 2006
********************
1. The 1st to 4th defendants, D1 to D4, face the following charges:
1st Charge (against D1 to D4)
2. Statement of Offence: Conspiracy to pervert the course of public justice, contrary to Common Law and sections 159A and 159C of Crimes Ordinance, Cap. 200.
3. Particulars of Offence: Kanjanapas Chong-kwong, Derek also known as Wong Chong-kwong, Chui Man-si also known as Mandy Chui, Lam Ping-cheung also known as Andrew Lam, and Kevin Barry Egan, between the 11th day of July 2004 and the 17th day of July 2004, in Hong Kong, knowing that Wong Chong-kwong and others had been arrested by the Independent Commission Against Corruption (ICAC), that there was an ongoing investigation by the ICAC of Wong Chong-kwong and that criminal proceedings arising from the investigation were possible, conspired together and with Chung Cheong-kuen, Frankie to pervert the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice, namely, to obstruct and hinder the investigation and possible proceedings by seeking to gain access to Wong Pui-see, Becky, a person whom they believed or suspected to be co-operating with and assisting the ICAC in that investigation, with a view to ascertaining what she had said to investigators of the ICAC and influencing her against providing assistance or information to the ICAC by:
(a) falsely representing to officers of the ICAC that certain persons represented Wong Pui-see, Becky's interests in dealing with the ICAC and by seeking access to her;
(b) causing to be made an application for a writ of habeas corpus (the application), in respect of Wong Pui-see, Becky, directed to the Commissioner of the ICAC when they knew or believed that she was not unlawfully detained and did not seek release from the custody of the ICAC;
(c) submitting to the High Court of Hong Kong, in relation to the application, affirmations which they knew or believed to be false or misleading in material particulars; and
(d) disseminating information and materials to journalists to publicize Wong Pui-see, Becky's involvement in the said ICAC investigation and to falsely represent that she was being unlawfully detained by the ICAC.
2nd Charge (against D2 only)
4. Statement of Offence: Perjury, contrary to section 31 of Crimes Ordinance, Cap. 200.
5. Particulars of Offence: Chui Man-si, also known as Mandy Chui, on the 16th day of July 2004, in Hong Kong, being lawfully affirmed as a deponent, wilfully made statements on affirmation for the purposes of a judicial proceeding, namely habeas corpus proceedings in the High Court of Hong Kong, numbered HCAL 89/2004, before a person authorized by law to administer an affirmation to the said Chui Man-si, which statements were material in that proceeding and which the said Chui Man-si knew to be false or did not believe to be true, namely:-
(a) that Wong Pui-see, Becky was a 30% shareholder and director of Ever Brilliant Consultants Ltd and was her business partner;
(b) that in two telephone calls made by Wong Pui-see, Becky she had spoken in a faint and trembling voice and said that the ICAC had snatched her telephone from her and that she did not know where she was;
(c) that she was worried about the well-being of Wong Pui-see, Becky because she had no close family members in Hong Kong.
Further, she omitted a material particular, namely that Wong Pui-see, Becky had assured her that she was safe and sound, and thereby sought to give the impression, which she knew not to be true, that she, Chui Man-si, had consulted solicitors and made the affirmation on behalf of Wong Pui-see, Becky because she believed her to be held against her will.
3rd Charge (against D3 and D4)
6. Statement of Offence: Conspiracy to disclose information about the identity of a participant in the witness protection programme, contrary to section 17(1)(a) and (4) of the Witness Protection Ordinance, Cap. 564 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.
7. Particulars of Offence: Lam Ping-cheung also known as Andrew Lam, and Kevin Barry Egan, between the 15th day of July 2004 and the 17th day of July 2004, in Hong Kong, conspired together to disclose information, without lawful authority or reasonable excuse, to journalists of the Hong Kong media about the identity of a participant in the witness protection programme.
4th Charge (alternative to 3rd Charge) (against D4 only)
8. Statement of Offence: Attempting to disclose information about the identity of a participant in the witness protection programme, contrary to section 159G of the Crimes Ordinance, Cap. 200, and section 17(1)(a) and (4) of the Witness Protection Ordinance, Cap. 564.
9. Particulars of Offence: Kevin Barry Egan, on or about the 15th day of July 2004, in Hong Kong, without lawful authority or reasonable excuse, attempted to disclose to Chow Yin-ling, Magdalene, Chief Court Reporter of South China Morning Post, information about the identity of a participant in the witness protection programme.
5th Charge (alternative to 3rd Charge) (against D4 only)
10. Statement of Offence: Attempting to disclose information about the identity of a participant in the witness protection programme, contrary to section 159G of the Crimes Ordinance, Cap. 200, and section 17(1)(a) and (4) of the Witness Protection Ordinance, Cap. 564.
11. Particulars of Offence: Kevin Barry Egan, on or about the 15th day of July 2004, in Hong Kong, on an occasion other than that referred to in the 4th charge, without lawful authority or reasonable excuse, attempted to disclose to Chow Yin-ling, Magdalene, Chief Court Reporter of South China Morning Post, and others, information about the identity of a participant in the witness protection programme.
12. I shall return the verdict as follow:
13. In respect of the 1st charge, I find D1, D2 and D3 guilty of conspiring together with Chung Cheong-kuen, Frankie to pervert the course of justice, and I find D4 not guilty.
14. In respect of the 2nd charge, I find D2 guilty of attempted perjury.
15. In respect of the 3rd charge, I find D3 and D4 not guilty.
16. In respect of the 4th and 5th charge, I find D4 guilty as charged.
17. I shall now give my reasons for verdict.
Prosecution Evidence
18. On 9 July 2004, the ICAC arrested 9 persons including D1, Miss Wong Pui-see, Becky (PW1) and Mr William Lau in relation to Semtech International Holdings Limited ("Semtech"), a public listed company.
19. D1 is the Chairman of Semtech. Becky Wong was the secretary of D1. D2 was the girlfriend of D1 and D2 was not arrested on 9 July 2004.
20. D2 is a shareholder and director of Ever Brilliant Consultants Limited, which operated a beauty salon called Eden. The capital of Ever Brilliant was contributed by D1. Since the end of 2002, Becky Wong assisted D2 in the administration of Ever Brilliant/Eden at D1's request. Becky Wong was a signatory of Ever Brilliant's bank account as a nominee of D1. Becky Wong and D2 became good friends like sisters. D1 offered to Becky Wong 30% of the shares in Ever Brilliant, on the basis that the profit would be shared by Becky Wong but the losses be shouldered by D1. The bought and sold notes and instrument of transfer were executed, but they were not duly stamped and registered. Becky Wong said because the tax losses of Ever Brilliant in the period ending 31 December 2003 were not yet settled. The record at the Companies Registry still shows that D2 was a 70% shareholder and director and Miss Cheung Lai-kwan was a 30% shareholder and director of Ever Brilliant. However, Becky Wong said D2 did not know the procedure was not completed and she might have considered Becky Wong as a business partner and 30% shareholder.
21. D3 is a notable solicitor and partner of Messrs Andrew Lam & Company. D4 is a barrister of senior standing.
22. The Semtech investigation was handled by Section 2 of Group Z of the ICAC. Miss Daphne Lim (PW29), Senior Investigator, was the case officer. Senior to Daphne Lim was Mr Patrick Ho (PW68), Chief Investigator, Head of Section Z2. Above Patrick Ho was Mr Ricky Chu (PW69), Principal Investigator, Head of Group Z. Miss Rebecca Li (PW70), Assistant Director, supervised Group Z. On 9 and 10 July 2004, Ricky Chu was on duty visit outside Hong Kong. Patrick Ho stood in his post without formal acting. Ricky Chu resumed office on Sunday 11 July.
Friday, 9 July 2004
23. At 7.30 pm on 9 July, Becky Wong was arrested and cautioned by Mr Dale Ko (PW54), Senior Investigator, for conspiring with D1 to offer an advantage to a fund manager. Becky Wong was told that D1 was also arrested. She gave statements to the ICAC for about 3 hours while at home. During that time, Becky Wong's mobile phone (6083-3118) was turned off.
24. At 10.30 pm, Becky Wong was taken back to the ICAC Headquarters at Murray Road. On the way, Becky Wong dropped her pet dog off with her sister. The record shows that at 11.15 pm on 9 July, Becky Wong's mobile phone was seized from her. At 11.25 pm, Dale Ko asked Becky Wong whether she was willing to give a non-prejudicial statement. Dale Ko explained the effect of a non-prejudicial statement to her. Becky Wong told the court that she understood at the time that she would probably be a witness for the ICAC, but there was no certainty. An immunity from prosecution was not mentioned but she expected to receive one. She was happy with this arrangement.
25. At 11.45 pm on 9 July, Mr Bernard Ryan (PW19), then Senior Assistant Director of Public Prosecution in charge of Private Sector Corruption in the Department of Justice ("DOJ") received a phone call from Rebecca Li seeking his approval for taking a non-prejudicial statement from Becky Wong. Upon hearing what evidence she was likely to give, Mr Ryan gave approval over the phone. At that stage, there was no discussion of immunity from prosecution.
Saturday, 10 July 2004
26. From 00.25 am to 4.10 am on 10 July, the ICAC officers took a non-prejudicial statement from Becky Wong. Then Becky Wong returned to the detention centre. She was worried and slept for 1 to 2 hours only.
27. At about 8.30 am on 10 July, Mr Chung Cheong-kuen, Frankie (PW2), a solicitor's clerk of Messrs C K Mok & Company, received a phone call from the wife of D1. Frankie Chung is giving evidence under an immunity from prosecution in connection with the present case. D1's wife told Frankie Chung that D1 was arrested by the ICAC and she asked him to arrange for a lawyer to see D1. Frankie Chung said he did not know D1 before. He saw D1 with a lawyer at 6 pm that day.
28. From 10.56 am to 10.30 pm on 10 July, Becky Wong gave a second non-prejudicial statement. It contained matters incriminating D1.
29. At 8.50 pm on 10 July, Daphne Lim informed the detention centre of the ICAC that approval was obtained from Rebecca Li to detain Becky Wong for a second night. Rebecca Li said under ICAC procedure, detention exceeding 24 hours requires the approval of an Assistant Director. She gave such approval, but it did not mean she ordered detention for any period. It was up to the Principal Investigator whether to grant bail. Patrick Ho said he decided to grant bail to Becky Wong. He said Becky Wong was still a suspect, but he hoped that she would be a prosecution witness one day. Dale Ko informed Becky Wong that she could go home shortly before she was admitted to bail.
30. At 10.38 pm, Becky Wong signed on her own recognizance for bail in the sum of $10,000 until 5 pm the next day, that is, 11 July.
31. Rebecca Li said that according to practice, a detainee would be released upon oral instruction from the Principal Investigator, but the bail form would be prepared for signature by the Principal Investigator later. The bail form in question was not sent to Ricky Chu for signature until 11 or 12 July after he had resumed duty.
32. Becky Wong also signed a note dated 10 July 2004 stating that:
(1) she was voluntarily giving information to assist the ICAC;
(2) she understood that she was still a subject of investigation herself; and
(3) she consented to the ICAC officers accompanying her and staying the night at her home.
33. Becky Wong said before she was released on bail, she had expressed fear for her safety. She said that she had named bankers, financial analysts and wealthy people in her non-prejudicial statements and she feared they might resort to unlawful means involving the Triad Society against her. Also, D1 was a tempered person, mostly with D2 and on rare occasions with his business associates. D1 once showed her a foreign passport and said that he could get one easily, and she feared D1 might send her away.
34. Becky Wong said the ICAC officers offered to accompany her at home or at any accommodation and she agreed voluntarily. They said to her that just in case someone rang the doorbell at night, she could be spared the decision whether to open the door. Becky Wong said she knew her movements would be under some restriction due to safety reasons, but it was with her consent. At that stage, the Witness Protection Programme ("WPP") was not yet mentioned.
35. After Becky Wong was released on bail, her mobile phone was returned to her. Dale Ko saw a list of missed calls appearing when she switched on the phone and Becky Wong told him that some of the calls were from D2.
36. On the night of 10 July, Becky Wong stayed at her home in the company of 2 female ICAC officers.
Sunday, 11 July 2004
37. In the morning of 11 July, D1 was still in custody. Frankie Chung and a barrister accompanied D1 at an ICAC interview. Later, Frankie Chung contacted D1's wife and D2 to raise the cash bail for D1.
38. At about lunchtime on 11 July, while still at home, Becky Wong received a call at her mobile phone from D2. The record shows that at 1.15 pm, D2 called Becky Wong for 0.1 minutes (Call 58 in the Schedule of Telephone Calls) and Becky Wong called D2 back and the call lasted 2 minutes (Call 60). Becky Wong said the ICAC officers were in the sitting room and she walked to the corridor to be out of their earshot as she did not want to be overheard. However, she believed they could overhear her. Dale Ko said he saw Becky Wong speak on the phone, but he could not hear the conversation.
39. During the phone conversation, Becky Wong told D2 it was not convenient to talk. She sensed that D2 knew she had been arrested. D2 said she was worried about D1 and Becky Wong. D2 said D1 was not yet given bail, and she could not find him. D2 asked Becky Wong about her well-being and Becky Wong said she was safe and sound "平安無事" (literally meaning "safe and no incident").
40. After the call, Dale Ko asked Becky Wong who the caller was, and Becky Wong said just friend.
41. This phone call between Becky Wong and D2 on 11 July was monitored and recorded by the ICAC, but the sound recordings and the first-hand listener's notes had been destroyed and was not produced.
42. Between 1.35 pm and 4.15 pm on 11 July, Becky Wong went to the ICAC to discuss about the WPP for the first time. Until then, she did not know about such programme. At 5 pm, Becky Wong's bail was extended to 16 July. Then she went home to pack things and to pick up her dog from her sister's place to put it in the kennel.
43. Sometime between 6 pm to 8 pm on 11 July, D1 went to Frankie Chung's office. D1 told Frankie Chung that his 2 employees, Becky Wong and William Lau, were arrested by the ICAC and he was very worried about them. D1 asked Frankie Chung to see them. Frankie Chung said he declined it, and suggested D1 to contact the family members of Becky Wong. D1 said Becky Wong's family members were not in Hong Kong. Frankie Chung said he would ask another solicitor, Mr Peter Lai, to go and see William Lau and Becky Wong.
44. At 6.15 pm on 11 July, Becky Wong and the ICAC officers arrived at the ICAC safe house. Becky Wong said the ICAC officers gave her another mobile phone SIM card ("ICAC SIM card"). They advised her to use the ICAC SIM card to contact her family and friends, and not to use her own SIM card to avoid contact with people involved with the case. Immediately, Becky Wong inserted the ICAC SIM card into her mobile phone and called her family members. Becky Wong said the ICAC officer did not take away her old SIM card. Dale Ko gave evidence to the same effect.
45. Patrick Ho said it was his idea to give Becky Wong the ICAC SIM card, so that she had an option to use it. It was not to prevent her from calling people involved in the Semtech case, because she was allowed to keep her own SIM card and was free to communicate with anybody. Ricky Chu said Becky Wong's own SIM card was monitored by the ICAC, but the ICAC SIM card was not monitored.
46. Sometime between 6.15 and 7.29 pm on 11 July, Becky Wong forwarded calls to her own SIM card to the ICAC SIM card. She did not tell her mother the ICAC SIM card number or about her arrest. She did not want to break the news in one go. She said her sister sensed something unusual when she dropped her dog at her place, and she did not want her mother to be worried. She only told her family on 12 July that she was arrested.
47. At 7.29 pm on 11 July, Becky Wong's phone rang and she saw D1's name on the caller display of her mobile phone as she had forwarded the calls to her own mobile number to the ICAC SIM card. She said the ICAC officers also saw the caller display and she was embarrassed and she switched off the phone without answering because the ICAC officers had advised her not to speak to people involved in the case.
48. Becky Wong then inserted her own SIM card back into the phone in order to cancel the call-forwarding to the ICAC SIM card. She said the ICAC never asked her to cancel the call-forwarding and it was her own idea to do so. She called her mother and elder sister using her own SIM card. After making the calls, she inserted the ICAC SIM card into the mobile phone. Thereafter, she did not receive any call from D1.
49. Miss Ada Wong (whose statement was read out) is Becky Wong's sister. She said Becky Wong had rung her and told her that she was very safe and had no problem. Becky Wong's father Mr Wong Kwok-chung and mother Madam Man Wai-hing (whose statements were read out) both said they learnt about Becky Wong's arrest in the newspaper.
50. Later in the night of 11 July, Becky Wong said she voluntarily surrendered her own SIM card to the ICAC officers. She did so as she was embarrassed when the ICAC saw D1's name on her caller display.
Monday, 12 July 2004
51. Between 7 am to 8 am on 12 July, Becky Wong went back to the Semtech office to collect things. The ICAC officers waited at the lift lobby. When she was packing things, she took a spare stored value SIM card (9534-4584) ("Semtech SIM card") without the knowledge of the ICAC officers. She wanted to call D2 to find out about D2 and D1. She had concern for D2 as a friend. She felt the ICAC SIM card might be tapped, so she would use the Semtech SIM card instead. She said she did not tell the ICAC officers about this Semtech SIM card because it never crossed her mind to do so.
52. In the morning of 12 July, Mr Tony Lo (PW61), Chief Arms Training Officer ("CATO") of the ICAC was notified to convene a meeting of the Witness Security Panel ("WSP") at 4 pm in the afternoon to consider the inclusion of Becky Wong into the WPP.
53. Under the Commission's Standing Order ("CSO"), the WSP was tasked with inducting a potential witness into the WPP. CATO was designated the secretary of the WSP. The CSO stipulates that the officer intending to include the witness into the WPP should prepare a Loose Minute briefly outlining the background and justification, together with a Personal Profile of the witness.
54. Before the WSP meeting, Tony Lo received for circulation a briefing note prepared by Mr Amen Chee, Senior Investigator of Section Z2, outlining the background of the case and the evidence Becky Wong was anticipated to give. The briefing note mentioned that "Her safety is likely to be jeopardized following the release of the arrestees including Wong (that is, D1)."
55. Tony Lo asked for the Personal Profile but was told it was not prepared. In fact, the Personal Profile was only prepared by Daphne Lim on the next day, 13 July.
56. At about 2.30 pm on 12 July, D1 went to Frankie Chung's office. D1 said the solicitor Mr Lai was able to see William Lau, but Becky Wong could not be reached. D1 said Becky Wong was a fragile person, and he was worried that she might make admissions against herself for things she had not done. Frankie Chung mentioned to D1 that Becky Wong had been with the ICAC for 48 hours, and one possibility was that Becky Wong might be in the process of becoming a prosecution witness. D1 said he did not believe Becky Wong would do so, because he was suspected in an insider dealing case, and Becky Wong was his intimate girlfriend. D1 said he needed to look for a famous barrister to defend him. D1 mentioned D3, but Frankie Chung said D3 was not a barrister and C K Mok & Company could not engage D3.
57. Frankie Chung said that in July 2004, he had never heard of the Witness Protection Ordinance, nor was aware of its provisions, and had not come across the WPP. But he was aware of a suspect being persuaded to turn prosecution witness and being put up in a safe house. In mentioning to D1 about the possibility of Becky Wong turning ICAC, he was merely making a suggestion to D1 without offering any solution. He said if he had known that Becky Wong was in the WPP, he would have avoided dealing with D1.
58. At 4 pm on 12 July, the WSP meeting was convened to discuss the induction of Becky Wong into the WPP. The WSP was chaired by Mr Gilbert Chan (PW60), Director of Operations (Government Sector) of the ICAC. Gilbert Chan was appointed the Approving Authority under the Witness Protection Ordinance. Under section 6(3) of the Ordinance, a witness becomes included in the witness protection programme when the approving authority signs the memorandum of understanding. The WSP meeting was attended by Rebecca Li, Ricky Chu, Patrick Ho from Group Z and officers from Group G which is responsible for operating the WPP and gathering intelligence, who were Mr Danny Wong, Assistant Director overseeing Group G, Mr Eric Yang (PW33), Principal Investigator and Head of Group G, Mr Eric Wong (PW71), Chief Investigator of Section G1, and also Tony Lo.
59. Gilbert Chan, Eric Yang and Ricky Chu said that it was not absolutely necessary to have the Personal Profile at the WSP meeting, because the matter could be discussed at the meeting. Gilbert Chan said the requirement of the CSO was departed from because the officers were working under the stress of time. Gilbert Chan said the Personal Profile still had to be prepared after the meeting as it was important for the officers to carry out the protection. Patrick Ho echoed that the Personal Profile would serve as an operational tool.
60. At the meeting, Gilbert Chan said he heard briefing of the circumstances from the Investigating Officers and he heard briefing on intelligence from Group G.
61. Patrick Ho said he orally addressed the risk assessment for Becky Wong. In the minutes drawn up by Eric Wong on 13 July 2004, the section on Risk Assessment stated that: "Becky is a key witness who can give evidence against Wong (that is, D1) and his associates. Soon after Wong was released on bail, he had asked his girlfriend Mandy to approach Becky."
62. Patrick Ho said that at the WSP meeting, he was not aware of the monitored call between Becky Wong and D2 on 11 July, and he did not know about contact between Becky Wong and third parties between 10 to 12 July.
63. Rebecca Li said Patrick Ho told the meeting that there were missed calls from D2 when Becky Wong turned on her mobile phone upon release from bail, but there was no mention of any monitored call on 11 July.
64. Eric Yang said he knew the intelligence on the 11 July call but he did not tell the meeting, and was not sure whether Patrick Ho brought it up at the meeting.
65. Ricky Chu said the meeting was told that there were attempted and actual contacts between Becky Wong and D2, however, the contents of any particular call was not gone into. Tony Lo's evidence was similar to Ricky Chu.
66. At the conclusion of the WSP meeting, Gilbert Chan approved the inclusion of Becky Wong into the WPP. He said that in practice, protection could have started before formal approval was given at the WSP meeting. He thought it was mentioned in the meeting that Becky Wong was on bail and in a safe house.
67. Tony Lo said he was busily engaged with an arms training course that week, so Eric Wong drew up the minutes of the WSP meeting. The minutes of the WSP meeting recorded that Becky Wong was approved into the WPP and she was assessed to be of low risk, she was concerned to have her pet dog at the safe house, and the officers of Section G1 would maintain regular contact with Becky Wong on witness protection matters, and officers of Z2 would be the handling officers. The meeting ended at about 4.30 pm.
68. Eric Wong explained that "handling officers" meant officers responsible for the case. Officers accompanying the witness were called "protection officers". The minutes did not state who were the protection officers. Rebecca Li said that officers of Section Z2 were deployed as the protection officers due to resource consideration. Eric Wong said there were less than 10 officers in Section G1, and it was not necessary that armed officers be deployed for protection in every case. Tony Lo said it was quite normal practice for officers of the investigating team to carry out the protection.
69. In the Personal Profile written by Daphne Lim on 13 July, the section on Threat Assessment stated this: "The girlfriend of Subject's boss and another colleague had contacted Subject after she was released on bail on Saturday (10.7.2004). When Subject's boss was released on Sunday (11.7.2004), he immediately contacted her." Daphne Lim said by "contact" she actually meant attempted contact in that when Becky Wong was released on bail, she got back her mobile phone, there were messages that D2 was trying to contact her when the phone was switched off. Daphne Lim said she did not mean to refer to any monitored calls as she was not aware of any such surveillance, and she did not know about any telephone contact between Becky Wong and D2 until late 14 July. Ricky Chu said only officers of Principal Investigator and above knew about monitored calls.
70. Between 4.30 pm and 6 pm on 12 July, D1 and William Lau met at Frankie Chung's office.
71. In the evening on 12 July, Becky Wong was at the safe house. Shortly before 10.35 am, Becky Wong went to the toilet and inserted the Semtech SIM card into her mobile phone as she wanted to call D2 without being tapped or overheard.
72. The record shows that at 10.20 am, D2 called Becky Wong at Becky Wong's usual mobile number. Becky Wong said she was not aware of this call. By coincidence, Becky Wong called D2 with the Semtech SIM card at about the same time.
73. The record shows that between 10:31:00 am and 10:51:50 am, there was a series of 9 calls between Becky Wong and Chan Cheuk-ming (PW3)'s mobile phone. Mr Chan is a taxi driver and D2 was his regular customer. At about 10.30 am on 12 July, he lent D2 his mobile phone to make calls while on board his taxi.
74. Becky Wong said there were only 2 main conversations out of the series of calls. She rang D2 and told D2 to call her back. She had intended D2 to call her back on the Semtech SIM card, without realising that the number of her stored value SIM card would not show up on the receiver's caller display. She called D2 again and told D2 the Semtech SIM card's number. The record shows a call from the taxi driver's mobile to the Semtech SIM card at 10:40:46, lasting 344 seconds (or 5- minutes) (Call 108). This was the first main conversation.
75. In the first main conversation, Becky Wong said she told D2 that she was hiding in the toilet and she had to speak softly as it was not convenient to talk. Becky Wong said in evidence that she talked secretly in the toilet because she had given two non-prejudicial statements. D2 asked whether "they" were still with her. D2 asked her whether she was OK and Becky Wong said she was OK. "無" (literally meaning "nothing"). And further she added she was safe and sound "平安無事" (literally meaning "safe and no incident").
76. Becky Wong told D2 to tell D1 not to use his 2 mobile numbers starting with "6" and "9" as the ICAC had known about them. Becky Wong agreed it was wrong for her to alert D1, but she did so out of kindness as she did not want D1 to get into bigger and bigger trouble (though she did not say this to D2).
77. Shortly after the 5- minutes call, Becky Wong called D2 again and D2 called back for 1 minute (Call 111A). This was the second main conversation. Becky Wong said the purpose of this call was to ask D2 to say sorry to the boss, that is, D1, on her behalf. D2 then asked her what have she said to them. Becky Wong told D2 that she did not say anything that D1 could not explain himself away, except about market manipulation and illegal money, as she felt the ICAC had tapped the phones and there was no way but to say it. Becky Wong said she did not mean to tell D2 what she had told the ICAC, but as D2 had asked her, she told D2. Becky Wong said at that time, she had not given it the thought whether it was unwise to do so.
78. Becky Wong said she did not hang up hurriedly. But after cross-examination on her witness statement, she agreed to the suggestion.
79. After the second main conversation with D2, Becky Wong inserted the ICAC SIM card back and hid the Semtech SIM card inside the mobile phone. She said she did not intend to call D2 further as she had already found out the situation of D1 and D2.
80. The record shows that at 4.20 pm on 12 July, there was an SMS message from Celia Chiu's (PW4) mobile phone (9713-1117) to Becky Wong's stored value SIM card, i.e., the Semtech SIM card. The message was: "B. request to call chung lawer at onec(sic .) 94918232. M". Becky Wong said she did not receive this message until later.
81. Celia Chiu was the manager of D2's salon. She did not know Becky Wong and did not text her. She left her mobile phone in the manageress' office while working.
82. The record shows that on 12 July at 4.16 pm, there was a call from D1's mobile phone to D2's mobile phone lasting 4.1 minutes (that is, ending at 4:20:06 pm).
Tuesday, 13 July 2004
83. At 2.25 pm on 13 July, Becky Wong went to the ICAC Headquarters and she said she signed the Memorandum of Understanding ("MOU") for the WPP. Becky Wong said she was sure that she signed the MOU on 13 July, and she said Mr Lo of the ICAC also signed and dated it in her presence.
84. Tony Lo said he informed Becky Wong that the Approving Authority had given approval to include her in the WPP. He explained the MOU to her and let her read it. After reading it, Becky Wong agreed and signed. Then he signed it and dated it 13 July 2004 as Becky Wong had left the date blank.
85. Later in the afternoon of 13 July, Tony Lo told Eric Yang that Becky Wong had already signed the MOU.
86. Tony Lo said he knew the Witness Protection Ordinance requires the Approving Authority to sign the MOU. He said usually he would pass the MOU to the Approving Authority for signature within 2 to 3 days.
87. Tony Lo said that from 14 to 16 July, he was involved with an arms training course with an overseas expert. He did not get around to take the MOU for signature by Gilbert Chan until the morning of 16 July.
88. Eric Yang said he expected the MOU to be signed by the Approving Authority within 1 or 2 days. Eric Yang said he only knew that Gilbert Chan had signed the MOU on 16 July 2004 in June 2005 when informed by an investigator of the present case.
89. The lift CCTV footage of 9 Queen's Road Central on the 22/F of which D3's law firm was situated shows that at 3.56 pm on 13 July, D1 and William Lau took the lift to 22/F. At 4.12 pm, D3 also took the lift to 22/F. The telephone record shows that between 3.09 pm to 5.35 pm on 13 July, there were brief phone calls between D1 and D2 (Calls 133 to 137).
90. The lift CCTV footage of 9 Queen's Road Central shows that at 5.39 pm on 13 July, D2 also took the lift to 22/F. Then at 5.56 pm, D1, D2, D3 and William Lau took the lift down to G/F.
91. The lift CCTV footage of Chekiang First Bank Building on the 7/F of which the law firm Messrs Massie & Clement was situated shows that at 5.59 pm on 13 July, D1, D2, D3 and William Lau went to the 7/F.
92. Mr Richard Clement (PW5), partner of Massie & Clement said at about 6 pm on 13 July, he saw D1, D2, D3 and a Chinese male in his office. Mr Clement said D3 referred D2 to him as client because D3 said he had a conflict of interests.
93. Mr Clement said earlier on, his partner Mr John Massie had spoken to him and left him a brief note of the case. Mr Massie was due to go on a month's leave and could not take up the case. The lift CCTV footage shows that Mr Massie went down the lift of his office at 6.07 pm.
94. The note of Mr Massie recorded the name of Becky Wong and "secretary to chairman", "put under protection". Mr Clement said at that stage, he did not quite know the link of Becky Wong with the Chairman of Semtech as he did not realise the company was Semtech. Mr Clement thought D2 was in some sort of relationship with D1 for them to turn up at his office together, but at that stage, he did not know that they were boyfriend and girlfriend.
95. Mr Clement said D3 left with D1 and the others after a few minutes. D3 never mentioned anything like protective witness. D3 introduced D2 and let Massie & Clement act independently. Mr Clement said he saw nothing sinister about the referral. The lift CCTV footage shows D1, D3 and William Lau went down the lift at 6.08 pm.
96. Mr Tsui Pui-hung, trainee solicitor of Massie & Clement (whose statement was read out) said at about 6 pm on 13 July, D2, D3 and 2 other Chinese males went into Mr Clement's office. About 5 minutes later, D3 and the 2 males came out. D3 said to the 2 males "Let's not talk here. Go to the FCC to start talking again." Mr Tsui took "FCC" to mean the Foreign Correspondents' Club.
97. Mr Raymond Lam (PW6) was a trainee solicitor of Massie & Clement. He went into Mr Clement's room to provide interpretation between D2 and Mr Clement. Mr Clement took down some notes.
98. Mr Clement said D2 told him through Raymond Lam that her business partner and friend Becky Wong was arrested on Friday, and D2 had a number of calls with Becky Wong on Sunday morning (that is, 11 July) and Monday morning (that is, 12 July) and Becky Wong spoke in a quiet voice. D2 believed Becky Wong was in the custody of the ICAC, and D2 was concerned as she felt Becky Wong did not want to be where she was. D2 asked him to gain access to Becky Wong, and if that proved impossible, to do whatever necessary to get her released from the ICAC, and if court action were involved, so be it. Mr Clement could not remember whether the subject of court proceedings was first raised by D2 or himself, but he was pretty sure that there were instructions from D2 to initiate court proceedings if the attempt to see Becky Wong at the ICAC failed.
99. Mr Clement wrote down "protective custody" (in inverted commas) in his notes. He thought if Becky Wong were arrested on Friday (that is, 9 July), and there did not seem to be any charge by Tuesday (that is, 13 July), and if she were still with the ICAC, it would have to be protective custody. He was also influenced by the words "put under protection" in Massie's notes. However at that stage, Mr Clement thought Becky Wong had probably been released and no longer with the ICAC but she just did not want to see anybody. Hence, he put "protective custody" in inverted commas.
100. Mr Clement told D2 through Raymond Lam that he would draft a letter to send to the ICAC on the next day to request access to Becky Wong.
101. Before D2 left the office of Massie & Clement, she asked Raymond Lam for the way to the FCC, which Raymond Lam understood to mean the Foreign Correspondents' Club. The lift CCTV footage shows that D2 went down the lift at 6.33 pm.
102. Mr Clement opened a file for D2 in the matter of Becky Wong, then he drafted a letter stating that they were instructed by D2 that Becky Wong was in "protective custody" (in inverted commas) of the ICAC and D2 was of the view from talking to Becky Wong that she wished to be released, and asked the ICAC to show a copy of the letter to Becky Wong and to ask her to contact Mr Clement. However, eventually, this letter was not sent.
103. The lift CCTV footage shows that Mr Clement went down the lift at 6.37 pm. Mr Clement said while he was on the MTR home, he received a call on his mobile from D4. The records show that at 6.51 pm, there was a call from the FCC to Mr Clement's mobile phone. Mr Clement understood D4 to be saying that D3 was a bit agitated, as apparently, D2's girlfriend was held by the ICAC, and Massie & Clement should be down there hammering on the door of the ICAC, but all he proposed to do was to just write a letter. Mr Clement took it that his initial approach to write a letter was disagreed by D3. D4 told Mr Clement that he had instructions from D2 to arrange for a legal visit to the ICAC that night to find out what was happening to Becky Wong. Mr Clement said he was on his way home and he had to ring the office to see if that could be arranged. Having spoken to Raymond Lam on the phone, Mr Clement rang D4 back and said it was all right.
104. Mr Clement said D4 did not mention meeting D1 that evening. As to D2, Mr Clement assumed that D4 had met her as she had asked for the way to the FCC, but Mr Clement did not ask D4 how he got instructions from D2.
105. Sometime after 7 pm on 13 July, Raymond Lam went to the FCC. He saw D1 with D2 and other gentlemen. He said D4 came over and asked for him and he identified himself. Raymond Lam gave D2 a letter of instructions to Massie & Clement for legal visit to the ICAC with D4 as counsel and D2 signed on it. Then D1, D2, D4 and Raymond Lam left the FCC and boarded a 7-seater vehicle at Duddell Street.
106. Mr Lai Kwai-wai, the chauffer of D1 (whose statement was read out) said that in mid-July 2004, he drove D1, D2, a bulky foreign gentleman and a Chinese gentleman from Duddell Street to Murray Road Carpark. While in the car, D1 talked to the foreign gentleman in English and D2 did not take part in the conversation. The foreign gentleman and the Chinese gentleman alighted at Murray Road, then D1 and D2 went on to Sheung Wan.
107. At 7.30 pm on 13 July, D1 went to Frankie Chung's office and remained there for 45 minutes. Frankie Chung received a cheque dated 13 July 2004 in the sum of $12,000 drawn at D1's account with the Hang Seng Bank as the balance for the fees of $200,000 for the legal visits for D1 on 10 and 11 July. D1 told Frankie Chung that he had engaged D3 as part of his defence team. D1 said that C K Mok & Company should act for William Lau and Becky Wong.
108. At about 7.45 pm, Raymond Lam and D4 arrived at the ICAC reception. Raymond Lam asked to see Becky Wong. Daphne Lim and Miss Matchy Mak (PW30), Assistant Investigator, went to the reception. Daphne Lim and Matchy Mak heard D4's mobile rang and D4 spoke to the phone: "Andrew, I'm talking to the ICAC officers. Don't call me. I'll call you." After hanging up, D4 said, "It's Andrew Lam Ping-cheung. He is not patient."
109. The record shows that at 7.51 pm on 13 July, D3's mobile rang D4's mobile for 12 seconds (Call 148), and at 7.56 pm, D4's mobile rang D3's mobile and there was a call of 104 seconds (Call 149).
110. Daphne Lim said D4 requested immediate access to Becky Wong. D4 said he was acting on the instructions of D2, and D2 and Becky Wong were partners in a beauty salon with Becky Wong owning 30% shares, and D2 was not able to reach Becky Wong. D4 said Becky Wong was arrested by the ICAC and she had been detained for over 48 hours. If he were not given immediate access to Becky Wong, he would make a report to the police and to apply to the High Court for habeas corpus .
111. Daphne Lim asked D4 to wait. D4 asked to see the officer in charge of the case and Daphne Lim said she was. D4 asked for Daphne Lim's rank and queried that she was too junior to be the case officer.
112. Daphne Lim then went upstairs. She rang Stanley Wu, one of the officers accompanying Becky Wong at the safe house and asked him whether Becky Wong had requested to see a lawyer and she got the reply that nothing about that was mentioned. Daphne Lim said normally when a lawyer requested to see a detained person, the person would be asked whether to see the lawyer. However, she did not inform Stanley Wu or Becky Wong that D4 had come to see her, because Becky Wong was not a detained person, and she had the right to see any lawyer or to go at any time.
113. Daphne Lim reported the matter to Rebecca Li. Rebecca Li said Daphne Lim told her that D4 wanted immediate access to Becky Wong, otherwise he would report to the police for unlawful detention, and to apply for habeas corpus. Daphne Lim told her the enquiries with the officer accompanying Becky Wong, but Daphne Lim did not mention D4 said Becky Wong had rung D2. Rebecca Li said at that stage, she was not aware of any intelligence information on the telephone conversation between Becky Wong and D2.
114. Rebecca Li reminded Daphne Lim not to make unlawful disclosure that Becky Wong was in the WPP. She told Daphne Lim to tell D4 that Becky Wong was no longer detained in the ICAC. She believed that D4 would not pursue the matter any further upon hearing this, but if he insisted, it was a matter for him.
115. Then Daphne Lim and Matchy Mak went back to the reception. Daphne Lim said to D4: "Becky Wong is not in the ICAC. I do not have Becky Wong with me. You can take whatever action you like." When D4 heard this, he raised his voice and said: "Of course Becky Wong is not here. She is in some other place. You have placed her in a safe house." D4 then said D2 had received a phone call from Becky Wong and Becky Wong told D2 that she was in the ICAC custody and she wanted to be released. Daphne Lim said at that stage, she did not know that Becky Wong and D2 had made contact on the phone. She had no access to the telephone intelligence. She said to D4 that she did not believe D2 had received phone call from Becky Wong.
116. D4 asked to see the case officer again. Chief Investigator Johnny Chau came over and confirmed that Daphne Lim was the case officer of the Semtech case.
117. Then D4 said he wanted to make a complaint against Daphne Lim in the Occurrence Book. D4 told Daphne Lim he felt sorry for her as she was just a scapegoat.
118. There being no Occurrence Book at the ICAC reception, D4 wrote out a complaint letter and stapled his name card onto it. The content of the letter was as follows:
"URGENT/BY HAND
Head of Operations,
Dear Sir,
Re: WONG Pui See, Becky
It is with considerable regret that I have to make a formal complaint against one of your officers, Ms Daphne LIM Suet-sam (SI) in respect of the above-named.
It is now 2030 hrs on Tues, 13 JUL 04 and I am at the G/F Reception of ICAC HQ.
I have requested access to the above-named who is being "detained" by you in respect of the "SEMTECH" Operation, supposedly on a voluntary basis.
I have firm instructions however from her business partner, Ms CHUI Man-si, Mandy, that Ms WONG is being held against her will and wishes to be released immediately.
My firm instructions are that Ms WONG spoke to Ms CHUI on Sunday and informed her as follows:
(a) that she (Ms WONG) attempted to use her mobile phone to contact Ms CHUI on Sunday last (11 JUL 04) but when the attending ICAC officer saw the call destination he/she seized the phone and removed the "SIM" card;
(b) unbeknown to the ICAC, Ms Wong had a spare "SIM" card on her person which she inserted into the phone and used to contact Ms CHUI, speaking in a whispering tone, from a toilet;
(c) Ms WONG was adamant that she was being detained against her will and that she wished to leave "protective custody";
(d) Ms WONG told Ms CHUI that she would contact her again on Monday.
Since Ms CHUI has heard nothing further from Ms WONG, she now instructs me to:-
(a) make a formal complaint to the HKPF that the ICAC is holding Ms WONG against her will (false imprisonment); and
(b) to make an application to a High Court Judge for a writ of habeas corpus.
I will make one last attempt to negotiate the solution of this problem with your officers. Failing that I shall be left with no choice than to pursue (1) and (2) above.
I would appreciate your assistance in solving this problem amicably and sensibly.
Yours faithfully,
KEVIN B EGAN
119. Rebecca Li said Johnny Chau rang her saying that D4 handed him a complaint letter. Rebecca Li asked him to hand it directly to the Group L, the Group dealing with complaints. Rebecca Li said she did not get to read the complaint letter.
120. The record shows that at 8.27 pm on 13 July, D4 rang the South China Morning Post ("SCMP") and the call lasted 66 seconds (Call 150).
121. After D4 left the ICAC, Daphne Lim rang Patrick Ho, telling him that D4 would report the matter to the police, and would apply for habeas corpus .
122. Daphne Lim told Patrick Ho that she had made enquiries with colleagues accompanying Becky Wong that she had not asked to see any lawyer, but they had not told Becky Wong about D4's visit. Patrick Ho also agreed with Daphne Lim not to tell Becky Wong, because she had not asked to see any lawyer, and in any case, she was at liberty to see any lawyer if she wanted. Patrick Ho asked Daphne Lim to go to the safe house the next morning to clarify whether Becky Wong had asked to see a lawyer or whether she had called any lawyer.
123. Raymond Lam said after D4 and him left the ICAC, they went back to the FCC. Then D4 suggested they go to the Central Police Station to lodge a complaint against the ICAC in holding Becky Wong.
124. Sergeant Fong Sik-wah (whose statement was read out) was on duty in the Report Room in the Central Police Station on the night of 13 July. Sgt Fong said D4 and a Chinese gentleman come to make a report of false imprisonment. D4 said that they had been to the ICAC to ask to meet Becky Wong, partner of his client D2. D4 suspected the ICAC was unlawfully detaining Becky Wong. D4 told Sgt Fong his conversation with Daphne Lim of the ICAC and Sgt Fong recorded the utterances into the computer at D4's dictation. D4 said he asked Daphne Lim the whereabouts of Becky Wong, and Daphne Lim said she did not have the person there. D4 told Daphne Lim that he knew she had the person in a safe house or somewhere. D4 then handed to Sgt Fong a copy of the complaint letter to the ICAC. While Sgt Fong was reading the letter, D4 was busy making phone calls. Sgt Fong said D4 told him he was talking to people of the South China Morning Post.
125. Meanwhile, Station Sergeant Fung made enquiry of the ICAC. Eventually, Sgt Fong did not formally open a file but only registered the case as General Complaint.
126. The record shows that between 9.50 pm and 10.15 pm on 13 July 2004, there were 3 telephone conversations between D4 and the ICAC Report Centre. The transcript of the telephone recordings shows that D4 said he was making a complaint at the Central Police Station and the Duty Officer said a Mr Yung, presumably the superior of Daphne Lim in the Semtech case wanted to speak to him. The officer at the Report Centre made enquiries and replied there was no Mr Yung. Then D4 said he had just made a report of false imprisonment of his client with the ICAC, and he would then be making an application to a High Court for a writ of habeas corpus and he would also be talking to the press immediately.
127. The record shows that between 9 pm and 10.03 pm on 13 July, D3, D4 and Miss Carmen Hsu, a reporter of the Sing Tao Daily had engaged in telephone conversations. At 9.06 pm, D4's mobile rang D3's mobile for 162 seconds (or 2.7 minutes) (Call 151). At 9.21 pm, D3's mobile called D4's mobile for 70 seconds (Call 152), then at 9.36 pm, D3's mobile called Carmen Hsu's mobile for 221 seconds (Call 153), and then 9.51 pm, Carmen Hsu called D4's mobile for 403 seconds (Call 155).
128. Sometime after 10 pm on 13 July, Miss Charmaine Mok (PW31) of the ICAC Information Unit received a call from Carmen Hsu making press enquiries about the complaint to the police by D4. The record shows that at 10.22 pm on 13 July, Charmaine Mok's mobile rang Carmen Hsu's mobile for 2 minutes (Call 159), and at 10.44 pm, Charmaine Mok's rang Carmen Hsu's again for 1 minute (Call 161). Charmaine Mok said she had previously received enquiries from Carmen Hsu about the Semtech case on 9, 10 and 12 July.
129. A fax copy of the letter of complaint dated 13 July 2004 and written by D4 with a fax leader imprint dated 13 July 2004 at 23.01 was later seized from Carmen Hsu's home. The record shows that at 11.03 pm, D3 rang Carmen Hsu for 17 seconds.
130. On the night of 13 July, Patrick Ho was informed that D4 had made a report to the Central Police Station.
Wednesday, 14 July 2004
131. At midnight of 13 and 14 July, Becky Wong went to the toilet of the safe house and inserted the Semtech SIM card into her mobile phone. She said she did not want to call anyone but just wanted to see if D2 had anything to say to her. She turned on the phone and found this SMS message: "B. request to call chung lawer at onec (sic. ) 94918232.M"
132. At first, Becky Wong thought the lawyer was Ben Chang, D1's lawyer friend, and she did not mind calling him. Becky Wong rang the number and asked whether it was Ben but the answer was no, and she hung up. She read the SMS again and saw it was not lawyer Chang but lawyer Chung. Becky Wong thought that as D2 asked her to call the number and she had made the first call, she might as well call again. She said it was not the case that she wanted to get a lawyer to get her out of her current situation.
133. Becky Wong said she asked for lawyer Chung and said D2 asked her to call. Frankie Chung was the person Becky Wong called. Becky Wong said lawyer Chung told her to say she knew him. In fact, she did not know any lawyer Chung but she did not respond. She said lawyer Chung said she had the right to approach a lawyer. He told her to ring him during office hours the next day. He suggested her to make a request to the ICAC to call him, and told her to pass this telephone number to the ICAC and she would be able to contact him.
134. Becky Wong said she would not have called Frankie Chung if she had not got the SMS from D2. She never told lawyer Chung she was kept by the ICAC. She never told him she wanted any help or lawyer. She never gave him any legal instruction nor asked him to apply for habeas corpus on her behalf. She never wanted to leave the ICAC. She never rang Lawyer Chung again.
135. According to Frankie Chung, he said he received a short call first at midnight of 13/14 July. A lady asked whether he was Ben, he said wrong number and she hung up. A few minutes later, the lady rang again. She asked whether he was Mr Chung and Frankie Chung said yes. The lady said Mandy asked her to ring him and she asked him whether he was from Mr Wong's place. Then it dawned on him that Mandy was D1's friend, who had passed him the money for D1's bail, and Mandy had been to his office on 13 July. Frankie Chung asked the caller whether she was Wong Pui-see and she said yes. Frankie Chung asked "Are you with those people now?" (without mentioning ICAC) and she said no.
136. Frankie Chung said Becky Wong never told him she was safe and sound. Since she had called him at midnight, and her voice was faint and unsteady, and she spoke with hesitation, he thought she was frightened, and she needed to see a lawyer. Frankie Chung said although Becky Wong did not say she was with the ICAC, he believed she was so, probably he was confused as D1 had said so. Frankie Chung said: "Do you need me to see you tomorrow? It is not safe for you to see other people. It is safe to see me. If someone obstructs you to see me, you just say you know me. If they don't allow you to see me, you just lodge a complaint." Frankie Chung said he taught her to lie to the ICAC that she knew him before so that she could see him. He told her that he would wait for her call the next morning, and he would go and see her, and the lady said all right. Frankie Chung said to her: "No matter what, I wait for your call. As soon as I get your call, I would go to see you." He said Becky Wong did not respond and said something neither here nor there. Becky Wong never called him again.
137. Frankie Chung said that in fact he did not know Becky Wong, and had never met her, and his firm had never acted for her, but he taught her to say she knew him because he thought that would help her. Frankie Chung said Becky Wong never asked him to go to see her, and maybe he had misunderstood it because he said he was going to see her and she never refused, and when people rang him in the middle of the night, it was usually a request for legal visit.
138. Shortly after the call from Becky Wong, Frankie Chung called D1. He told D1 that he had managed to locate Becky Wong, and he had told Becky Wong that he would go to see her at the ICAC provided that she gave him a call. Frankie Chung said in fact ICAC was never mentioned, and he assumed that Becky Wong was at the ICAC. He said D1 was very happy and said he was coming over to see him right away. This call was monitored by the ICAC. The first-hand listener's notes were preserved, but were not produced at trial.
139. Sometime after 1 am on 14 July, D1 arrived at the downstairs of Frankie Chung's home. D1 suspected his car was tapped, and they boarded Frankie Chung's car. Frankie Chung asked D1 why Becky Wong had called him. D1 told him that Becky Wong had picked up a SIM card during the search of the office, and she called D2 for help. And when Becky Wong was having telephone conversation, her phone was snatched by the ICAC. D1 also said D4 went to the Central Police Station to report the missing of Becky Wong. D1 said he had formed a legal team including D3, and D3 would hold a press conference for him, and it pleased D1 as he could vent his grievance against the ICAC. Frankie Chung feared that the matter might get bigger and bigger. He told D1 to be careful as the ICAC people were narrow minded. D1 told Frankie Chung that if Becky Wong rang him in the morning, he should go with D4 to see her. D1 gave Frankie Chung the name card of D4.
140. While inside the car, D1 asked if Frankie Chung could go to the High Court to apply for bail for Becky Wong. Frankie Chung explained generally that the procedure was habeas corpus , not bail. D1 also asked Frankie Chung what was the specialization of Massie & Clement, and he said personal injuries litigation. D1 then said that they were no good.
141. D1 said he would be busy dealing with enquiries from the stock exchange. He would hand the matter over to D2 to handle. After this meeting in the car, Frankie Chung said he never saw D1 again.
142. The record shows that at 1.20 am on 14 July, D1 called D4 for 0.1 minute (Call 175).
143. On 14 July, the Sing Tao Daily published a report on the Semtech case with the sub-heading "Barrister alleges the ICAC of unlawful detention."
144. Gilbert Chan said he read from the newspaper that D4 had filed a complaint letter and complained to the police that the ICAC was detaining Becky Wong illegally. Gilbert Chan said as the Approving Authority, he was concerned whether Becky Wong had signed the MOU or changed her mind. He called Eric Wong and was told that Becky Wong had signed the MOU. That gave him the comfort. He was told that Tony Lo was tied up in arms training. Gilbert Chan said after he learnt of the application for habeas corpus, he was not so concerned that he had not signed the MOU and it did not occur to him that someone might want to see the MOU in the proceedings.
145. At 8.45 am on 14 July, Daphne Lim and Matchy Mak arrived at the safe house. Daphne Lim saw Becky Wong but she did not tell her that D4 wanted to see her the night before. She asked Becky Wong whether she did not want to join the WPP, and Becky Wong did not indicate she did not want to be in the WPP. Daphne Lim was not aware that Becky Wong had talked to Frankie Chung the night before, nor was she told of the Semtech SIM card. She only knew about these later that afternoon after Becky Wong gave a statement.
146. The record shows that in the morning of 14 July, D1 and D3 had rung each other; D1 had rung Frankie Chung; D3 had rung D4; Frankie Chung had rung D4; and D3 had rung Carmen Hsu.
147. At 8.45 am, D3 rang D1 for 16 seconds (Call 178), then at 8.47 am, D1 rang D3 for 186 seconds (Call 179), and at 9 am, D1 rang D3 for 97 seconds (Call 183).
148. At 9.13 am, D1 rang Frankie Chung for 0.2 minutes (Call 185), at 9.16 am, D1 rang Frankie Chung for 0.5 minutes (Call 187) and at 9.27 am, D1 called Frankie Chung for 0.4 minute (Call 190). Frankie Chung said D1 called to ask him to accompany D4 to pay legal visit for Becky Wong. Frankie Chung asked D1 why he did not ask D3 to do it. Then D1 said: "As I ask you to do it, you just do it." Frankie Chung told the court that he made excuses because he did not like the idea of a press conference, and he suggested D3 to do it because D1 had told him that D3 was going to hold a press conference for him. Further, Frankie Chung said he had a case in the District Court that afternoon and he still had to sort out the papers.
149. At 9.14 am, D3 called Carmen Hsu for 23 seconds (Call 186), and at 9.17 am, D3 called D4 for 43 seconds (Call 188).
150. At 9.28 am on 14 July, Frankie Chung called D4's mobile for 243 seconds (Call 191). Frankie Chung said after speaking to D1 on the phone, he rang D4. He did not tell D4 that D1 had just spoken to him. He told D4 that Becky Wong had contacted him and she wanted to get away from the ICAC. He asked D4 to look for Becky Wong at the ICAC, and enquired about D4's fees. They made an appointment to meet outside the ICAC at 11 am.
151. At about 9.30 am to 10 am, Mr Clement arrived at his office, and Raymond Lam showed him a copy of D4's complaint letter. This is the first time Mr Clement heard of the instructions stated in the complaint letter.
152. After reading the letter, Mr Clement received a call from D4. D4 said he had instructions from C K Mok & Company to go to the ICAC. D4 said that Frankie Chung, a clerk from that firm, had spoken to Becky Wong the night before, and Becky Wong wished to see Frankie Chung. D4 said he was going to the ICAC on the instructions of C K Mok & Company, but if an application were to be made to the court, whether Massie & Clement would still have instruction to move ahead. Mr Clement said D4 did not say what application, but he assumed that it was habeas corpus as Becky Wong said she wanted to see a lawyer. He told D4 that on the basis of the conversation with D2 the night before, the instructions were (1) to see Becky Wong at the ICAC, and (2) if that did not work, to get her released from the ICAC.
153. Mr Clement said he was not concerned that C K Mok & Company appeared as C K Mok & Company's client was Becky Wong, and he was acting for D2. He thought the earlier conversation between Becky Wong and D2 was a bit equivocal. But now Becky Wong had told Frankie Chung that she wanted to see him, he thought that was the end of the matter for Massie & Clement. As to why Massie & Clement was asked to do the habeas corpus, he thought maybe his firm was more versed in administrative law list.
154. In the morning of 14 July, Patrick Ho also read from the newspaper that D4 had been to the ICAC.
155. At around 10 am on 14 July, Dale Ko was asked by Patrick Ho to go to the safe house to ask Becky Wong whether she had contacted any lawyer, or asked anyone to contact a lawyer for her. Dale Ko arrived at the safe house at about 11 am.
156. At 11.10 am on 14 July, Frankie Chung and D4 met up to go to the ICAC. Just before that, the record shows that at 11.01 am, D3 had called D4 for 92 seconds (Call 194). Frankie Chung said he delivered the brief to D4, and D4 told him that he had been to the Central Police Station the night before, and D4 showed Frankie Chung the complaint letter. They went into the ICAC reception, and were received by Patrick Ho and Aman Chee. Frankie Chung said the ICAC officers were rude and dismissive.
157. Patrick Ho said he received a message that D4 was looking for Daphne Lim. Daphne Lim was not at the ICAC since she had gone to the safe house earlier that morning. Patrick Ho and Aman Chee went to the reception to see D4.
158. Patrick Ho said he told D4 that Becky Wong was not at the ICAC, and D4 could do whatever he liked and it was entirely up to him. Patrick Ho told the court that he could not divulge that Becky Wong was in the WPP. In any case, he learnt from Daphne Lim that D4 had mentioned that Becky Wong was in a safe house.
159. Frankie Chung said Patrick Ho's attitude made D4 very angry. D4 rang Mr Ryan and said all he wanted was access to Becky Wong to ascertain her status. The record shows that D4's mobile rang Mr Ryan's office at 12.07 pm. Frankie Chung said D4 argued on the phone, and then D4 hung up. After D4 rang Mr Ryan, Frankie Chung told D4 that Becky Wong was previously known to him, and she wanted to get away from the ICAC. Frankie Chung explained to the court that he lied to D4 in order to appease the dispute between D4 and Mr Ryan. D4 then told him to go to Massie & Clement to make an affirmation. Frankie Chung left the ICAC at 12.30 pm.
160. The record shows that between 12.18 pm, Frankie Chung rang D1 for 0.1 minute (Call 200), and D1 rang back for 1.9 minutes (Call 201), and at 12.31 pm, Frankie Chung rang D1 for 0.8 minute (Call 203). At 12.33, Frankie Chung rang D2 for 2.1 minutes (Call 204).
161. Mr Clement said he received a call from D4 and there was no success at the ICAC. D4 said the client, which Mr Clement understood to be D2, wished to make an application for habeas corpus to the High Court that afternoon. D4 said Frankie Chung would be coming over to Massie & Clement.
162. After D4 and Frankie Chung left the ICAC, Patrick Ho said Aman Chee told him that he recognized Frankie Chung as the solicitor's clerk for D1. Then Patrick Ho told Ricky Chu about D4's second visit. Patrick Ho said he could not remember whether he was told that Becky Wong said she was in the custody of the ICAC and she wanted to leave. On the other hand, Ricky Chu said Patrick Ho told him that D4 said Becky Wong had told D2 that she was in ICAC custody, and she wanted to leave. Be that as it may, Patrick Ho said he did not consider this allegation reliable because it was said by D2, the girlfriend of D1. And Frankie Chung being D1's law clerk confirmed his suspicion.
163. Patrick Ho said he also spoke to Daphne Lim after she returned to the ICAC from the safe house. Daphne Lim told him that Becky Wong never indicated that she did not want to be in the WWP.
Court adjourns - 1.00 pm
Court resumes - 2.32 pm
All defendants present. Appearances as before (Mr Lok absent).
164. Rebecca Li said shortly before she knew D4 had come back to the ICAC, she rang Mr Ryan saying that she wanted to see him about Becky Wong. She said the purpose of seeing Mr Ryan was because D4 came to the ICAC the night before and mentioned the possibility of a habeas corpus . She knew D4 had made a report to the police. Rebecca Li asked Ricky Chu to go see Mr Ryan together. Ricky Chu told her that D4 had come for a second time.
165. At around noon on 14 July, Rebecca Li and Ricky Chu went to see Mr Ryan.
166. Ricky Chu said when he went to have the meeting with Mr Ryan, he was not aware from any intelligence of the call between Frankie Chung and D1 earlier that morning. Nor did he know about that phone call between Becky Wong and Frankie Chung in the middle of the night. He was only told by Patrick Ho about the interception between 5 pm to 9 pm later than evening.
167. Rebecca Li also said that at that stage she did not know about the intelligence about the phone call between Becky Wong and Frankie Chung as mentioned in the call between Frankie Chung and D1. She was only told of the contents of the monitored calls in the afternoon of 14 July.
168. The record shows that at 12.07 pm on 14 July, Mr Ryan received a call from D4. Mr Ryan said shortly before the phone call from D4, he received the call from Rebecca Li. He said D4 told him on the phone that he was given the run around by the ICAC, and said he would likely be making an application for habeas corpus . Mr Ryan said Rebecca Li was coming over to see him, and asked D4 to call back later.
169. The meeting between Mr Ryan, Rebecca Li and Ricky Chu lasted about one and a half to 2 hours. Mr Ryan said he told them that he just had a call from D4, and he was told by them that D4 wanted access to Becky Wong, but she had entered the WPP voluntarily as evidenced by an MOU. Therefore, the ICAC was not in a position to allow access to Becky Wong, and D4 had filed a complaint letter the night before.
170. Ricky Chu said he told Mr Ryan that Becky Wong was included in the WPP. This information turned out to be not exactly correct, because by 14 July 2004, only Becky Wong had signed the MOU, and Gilbert Chan had not done so until 16 July. Ricky Chu had not seen the MOU and he did not know about this at that stage. In fact he only knew about this when he read it in a magazine in July 2005. He knew that the procedure was not complete until the Approving Authority had signed the MOU, but he simply had not thought about this point. He honestly believed that the procedure was complete and Becky Wong was included in the WPP.
171. Ricky Chu said the MOU was a top secret document and he had no access to it. At some stage, he had asked Eric Yang for a copy. Eric Yang said he was not obliged to produce it under the Witness Protection Ordinance. Ricky Chu was also concerned with protecting the secrecy and agreed that a pro-forma MOU would be sufficient for the habeas corpus proceedings.
172. Eric Yang said Ricky Chu did call him about the MOU, but he could not recall when. He said Ricky Chu asked him whether he could take a look at the original MOU. He told Ricky Chu that the signed MOU was secret and was not to be taken away. He said Ricky Chu did not mention showing either the original or blank pro-forma to Mr Ryan or to the court. Eric Yang said if Ricky Chu had said he wanted to show the MOU to Mr Ryan, he would have given it to him.
173. Rebecca Li said she had not seen the signed MOU either and believed that Becky Wong was a participant in the WPP. She only knew Gilbert Chan had signed the MOU on 16 July in late 2005 when she heard that the charges herein had to be amended. She also said the MOU was a secret document and she was not prepared to disclose it. She said Ricky Chu undertook to produce a blank pro-forma later on. Mr Ryan did not ask for a signed copy.
174. The upshot was Mr Ryan was given to understand that Becky Wong was included in the WPP. As a matter of fact, Mr Ryan said he was not even aware of the effect of section 6(3) of the Witness Protection Ordinance that "a witness becomes included in the WPP when the authorising authority signed the memorandum of understanding." Mr Ryan said he was made aware of the prohibition against disclosure under section 17 of the Witness Protection Ordinance, and he did not press for the production of the signed MOU, and was happy to see a blank pro forma only.
175. Ricky Chu said Mr Ryan suggested that a statement should be taken from Becky Wong on whether she had consulted any lawyer. At about 2 pm, Ricky Chu rang Patrick Ho to arrange it.
176. Dale Ko said some time after 12 pm on 14 July, he learnt from Becky Wong that she had contacted a lawyer Chung. After understanding the whole matter, Dale Ko rang Patrick Ho to tell him that. Patrick Ho only said understood at that stage. Then at about 2 pm, he received a phone call from Patrick Ho to take a statement from Becky Wong. Patrick Ho mentioned there might be a habeas corpus application for Becky Wong. Dale Ko said he was told to cover the topics whether Becky Wong had contacted any lawyer, or whether she asked other to find a lawyer or to apply to court for a habeas corpus. Dale Ko was not told that D4 had been to the ICAC.
177. Between 2.15 pm and 4.30 pm on 14 July, Dale Ko took a statement from Becky Wong on the habeas corpus matter.
178. Becky Wong told the court that the ICAC officers told her that someone had applied for habeas corpus on her behalf. She was upset and cried when she heard about it. The ICAC officers comforted her. In her mind, she queried whether she had created all the trouble. She thought of withdrawing from the WPP, but she did not tell the ICAC.
179. Becky Wong said the ICAC officers asked whether she had talked to lawyer Chung and she said yes. The ICAC officers were not pleased, but they did not have any particular response. However, the ICAC officers had not asked whether she had another SIM card yet at that stage.
180. In her statement dated 14 July 2004, Becky Wong stated that she was accompanied by the ICAC of her free will, and she did not ask her family or anyone to apply for habeas corpus. She said late at night on 12 July, she rang D2 and told her she was safe and sound. D2 advised her to contact a lawyer Chung on a mobile number, at that stage there was no need and she did not do so at once. She did tell D2 that she was with "them" without saying who they were. She did not indicate to D2 that she did not wish to be accompanied by them, and did not ask D2 to do anything for her. One day later, she suddenly remembered the telephone number of lawyer Chung D2 gave her. Since she wanted to hear some advice from lawyer Chung, she called him late at night on 13 July and she gave an account of the conversation with lawyer Chung. She stated that she did not request lawyer Chung to represent her. So far, she understood her rights, and did not have need to contact a solicitor yet.
181. Becky Wong said there were mistakes in her statement. She actually did not want to hear any advice from lawyer Chung. She made a mistake that she got the message about lawyer Chung during the phone call with D2 instead of through SMS, and she made no reference to the SMS from D2 because at that time she was just talking about the contents of the conversations with D2 and lawyer Chung. She did not mention the call with D2 on 11 July as she was not asked about it. At that stage, the ICAC did not know about the Semtech SIM card yet. She did not tell the ICAC about the Semtech SIM card until later that afternoon.
182. Dale Ko said he kept Patrick Ho informed of the contents during the taking of the statement.
183. The movement log relating to Becky Wong shows that between 4.15 pm (sic ) and 6.25 pm on 14 July, Becky Wong and Dale Ko, Queenie Woo and Stanley Wu, officers accompanying her, went to the kennel to see Becky Wong's dog.
184. Dale Ko said on the way back to the safe house, Becky Wong mentioned that she had taken the Semtech SIM card, and contacted D2 and Frankie Chung with the Semtech SIM card. Becky Wong also mentioned the SMS message about lawyer Chung. Dale Ko immediately informed Patrick Ho of that, but Dale Ko did not get to read the SMS until the next day, that is, 15 July.
185. Patrick Ho said that he heard from Dale Ko that Becky Wong had talked to D2 and Frankie Chung at 5 to 6 pm on 14 July after the statement was taken. He said it would take a few hours or up to the afternoon to have the listener's notes prepared. Ricky Chu said he learnt about these conversations from Patrick Ho between 5 pm and 9 pm on 14 July. Patrick Ho said he did not tell Ricky Chu the SIM card since there was nothing special.
186. Meanwhile, at lunchtime on 14 July, Frankie Chung saw Mr Clement in the office of Massie & Clement. The lift CCTV footage shows that Frankie Chung went up to the 7/F at 1.23 pm and came down to G/F at 1.35 pm.
187. Frankie Chung said he spoke to Mr Clement through the interpretation of Raymond Lam. However, Mr Clement said Frankie Chung spoke in English, and Raymond Lam also said he did not interpret for Frankie Chung.
188. Frankie Chung said he told Mr Clement that he received a phone call from Becky Wong in the small hours of the night and related the conversation. He told Mr Clement that Becky Wong was previously known to him, but he did not say Becky Wong had contacted him a few weeks ago in a non-criminal matter. Frankie Chung handed over the attendance notes of the legal visit with D4 at the ICAC for the preparation of the Affirmation.
189. Mr Clement said he took instructions from Frankie Chung and received the attendance notes from him. He prepared the Affirmation of Frankie Chung and settled the other papers. Mr Clement did so without any reference to D4. Mr Clement said that the title of the action "In the matter of Chung Cheong Kuen Frankie" on the backsheet of the Affirmation was wrong. The applicant should be D2 and not Frankie Chung.
190. After the conference with Rebecca Li and Ricky Chu, Mr Ryan received a telephone call from D4 in the afternoon. Mr Ryan said he told D4 that he could not give him any details, but he was content with the way the ICAC was handling the matter. Mr Ryan told D4 there was little he could do to help, and D4 could do whatever he wanted. D4 replied that he would probably be proceeding with an ex parte application, and he asked Mr Ryan to wait to accept service of the papers.
191. Mr Ryan said he thought of telling D4 the effect of section 17 of the Witness Protection Ordinance but did not do so because D4 had told him that he knew very well what the situation was, and D4 indicated that he knew Becky Wong was in protective custody or safe house, though not in terms of the WPP.
192. Raymond Lam said Mr Clement told him to collect the fees from D2 before going to court. Raymond Lam rang D2 but there was no contact. Then Mr Clement asked him to ring D3. Raymond Lam rang D3 and asked about the fee. D3 suggested Raymond Lam to contact the client direct. Raymond Lam finally contacted D2.
193. The lift CCTV footage shows that at 4.16 pm on 14 July, D2 went to the floor where Massie & Clement was situated. Raymond Lam said D2 came to give him a cheque dated 14 July 2004 in the sum of $150,000 payable to Massie & Clement drawn on Ever Brilliant's account at the Dah Sing Bank for the fee of the habeas corpus application.
194. Also on the same date, a cheque dated 14 July 2004 in the sum of $50,000 payable to C K Mok & Company drawn on Ever Brilliant's account at the Dah Sing Bank was issued.
195. At 4.30 pm, Frankie Chung met Raymond Lam at the High Court, Frankie Chung said he took a glance at his Affirmation before he affirmed it before a Commissioner for Oaths at the High Court. The Affirmation also exhibited D4's complaint letter to the Head of Operations, ICAC.
196. The Affirmation of Frankie Chung is as follows:
"I CHUNG CHEONG KUEN FRANKIE do solemnly, sincerely and truly affirm and say as follows:-
1. Matters deposed to herein are within my own knowledge and true or have been told to me by those persons referred to in this affirmation which I believe to be true.
2. I am a solicitor's clerk in the employ of Messrs C K Mok & Co. of 1st Floor, OTB Building, 259-265 Des Voeux Road, Central, Hong Kong.
3. At about 1 am on the morning of 14 July 2004 I received a telephone call at home. My mobile telephone was connected to my home line. The caller was Wong Pui Sze Becky. Ms Wong was previously known to me. She had contacted me a few weeks ago in relation to a non-criminal matter.
4. She sounded frightened on the phone and her voice was unsteady. She said she was "being kept by ICAC people." She said she didn't know where she was but wanted to see me. I told her that she was entitled to see a lawyer and that I could arrange this for her later that morning. I told her to confirm to those holding her that she wanted to see a lawyer. My impression was that she was scared and was uncomfortable with her situation. That she didn't want to be there.
5. That morning, I went to the ICAC Headquarters at Murray Road with Mr Kevin Egan of Counsel. Mr Egan told me he had been to the ICAC Building the previous evening on the instructions of Messrs Massie & Clement with a Mr Raymond Lam, an Articled Clerk. Exhibited hereto marked 'CCKF-1' is a written complaint made by Mr Egan to the Head of Operations ICAC against Ms Daphne Lim Suet San (SI). Counsel's instructions are set out in the letter. Mr Egan was not given access to Ms Wong on the evening of 13th July 2004.
6. On our arrival at about 11.10 am we asked to see Ms Wong. The receptionist helped to find the O/C case, Mrs Chee. She appeared at about 12.00 noon. We again told her we had come to see Ms Wong at her request.
We were told that we had no appointment
We were then met by Chief Investigator Patrick Ho. He told us that Miss Wong is not here. He said that we could do whatever we liked. He did not tell us where Ms Wong was nor did he make any attempt to locate her to tell her that her requested legal representation had arrived.
7. As matters stand, Ms Wong has asked to see a lawyer. I believe she is in the custody of the ICAC although I do not know where. I believe that she has been held in excess of 48 hours and thus any restraint without her consent is unlawful. We have not been told that she has been charged."
197. Frankie Chung said that the following matters in his Affirmation were not true:-
(1) "Ms Wong was previously known to me." He only said that to prevent D4 from arguing with the ICAC officers.
(2) "She had contacted me a few weeks ago in relation to a non-criminal matter." He did not know why it appeared in the Affirmation. He saw it when browsing through the Affirmation and wanted to correct it, but did not do so since he did not find it important at the time.
(3) "She said she was 'being kept by ICAC people'." He said Becky Wong did not say that and he only believed so as she called him in the middle of the night and spoke with hesitation.
(4) "My impression was that she was scared and was uncomfortable with her situation. That she did not want to be there." That was the impression he got, but he was confused.
(5) "She said she didn't know where she was but wanted to see me." Becky Wong did not actually say that, but he thought she wanted to see him.
(6) "As the matter stands, Ms Wong has asked to see a lawyer." Becky Wong did not tell him that she wanted to see a lawyer. He only believed so as she called him in the middle of the night.
(7) "I believe she is in the custody of the ICAC though I do not know where." Initially, he wanted to use the word "together" instead of "custody". But because of what D1 had said about not believing Becky Wong turning ICAC, he abandoned the idea that she would be ICAC witness.
198. In the afternoon of 14 July between 1.17 pm and 5.31 pm, there were telephone calls from D3 to D4, Carmen Hsu to D3, Carmen Hsu to D4, and D3 to Carmen Hsu.
199. At 5.30 pm on 14 July, the ex parte hearing commenced before Yam J in open court. While waiting outside the court, Mr Clement said he met 3 reporters. One of them introduced herself as Carmen. Mr Clement and Raymond Lam were in court together with D4. The 3 reporters were also in court.
200. Mr Ryan said he did not appear before Yam J. The transcript incorrectly stated that he appeared on 14 July.
201. The title of the action stated In the matter of Wong Pui Sze Becky and In the matter of an application for a writ of habeas corpus. The writ was directed against the Head of Operations of the ICAC, and supported by the Affirmation of Frankie Chung.
202. D4 presented the case before Yam J as follows: 9 persons were arrested last Friday (that is, 9 July) in relation to Semtech. Becky Wong and D1 and everyone else were released on bail. However, Becky Wong was persuaded to remain by ICAC to remain in their "protective custody" (in inverted commas). She was not held by the ICAC under any lawful colour of right. She was alleged by the ICAC to be voluntarily staying with them. D4 said he had instruction from her business partner, D2, the person in respect of whom the application was made. D2 had spoken to Becky Wong on Sunday (that is, 11 July) in circumstances he had set out, that is, the ICAC stopped Becky Wong from using her phone and took away the SIM card. She had a spare one. She went to the toilet to use it. She rang D2 and told her effectively she was being held against her will by the ICAC. The ICAC were obviously holding her, hoping to obtain information from her to use against the persons arrested in the Semtech operation. D4 said he went to the ICAC the night before and tried to gain access to her. All he wanted was, with instructing solicitors, access to Becky Wong so that he could say to her, in the presence of ICAC officer, whether she wanted to stay with the ICAC or whether she wished to accompany him to leave the ICAC. If she wanted to stay with the ICAC, that was the end of it; if she elected to come with him, that was also the end of it. He then went to the Central Police Station to make a complaint of false imprisonment, which triggered an investigation by the Hong Kong Police who contacted the ICAC, which resulted in Becky Wong calling the deponent of the affidavit before the court, that is, Frankie Chung. She had business with him on other occasions. He said in the affidavit that she rang him at 1 o'clock in the morning and told him she wanted access to a lawyer, and as he deposed, she sounded frightened and she was being kept by ICAC people, unlawfully kept. That morning, he went with Frankie Chung to the ICAC and were told they had no appointment. Becky Wong was not there, and they could do what they liked.
203. Yam J asked what was the difference of issuing a habeas corpus asking the ICAC to attend at 10 am the next day, and to adjourn the application inter partes at 10 am the next day with service of papers. D4 said he predicted the other side would say they needed more time and the matter would be adjourned off for several days. Yam J decided to adjourn the matter to 10 am the next day.
204. Mr Ryan said D4 rang him saying that he had appeared before Yam J, and the matter was adjourned and he had to serve the papers on Mr Ryan.
205. At 6 pm on 14 July, Mr Clement and D4 served the papers on Mr Ryan at the DOJ. While at the DOJ, Mr Ryan said D4 received a phone call and talked to someone called "Lammy", and D4 said he would meet that person in Grappa's Restaurant in 5 or 10 minutes. After hanging up, D4 said: "Andrew Lam is a bloody nuisance." The record shows that at 5.58 pm, D3's mobile called D4's mobile for 66 seconds (Call 236). Then at 6.24 pm, D3 called D4 for 20 seconds, then he called Carmen Hsu for 318 seconds, then at 6.30 pm, D3 called D4 for 167 seconds, and at 10.40 pm, D3 called Carmen Hsu for 148 seconds.
206. Mr Ryan said it was decided that Mr Gerard McCoy SC would be leading him. But as Mr McCoy had not yet arrived back in Hong Kong, so he would apply for an adjournment before Yam J the next morning.
207. D2 did not attend court on 14 July. Raymond Lam said if anyone were to tell D2 what happened in court, it would have been him. But he could not remember calling her that night.
208. At about 7 pm, Charmaine Mok received press enquiry from The Sun on whether Becky Wong was under ICAC protection, and enquiry from the Apple Daily on the ICAC's response to the application for habeas corpus.
209. On 14 July, Becky Wong was released of any conditions of bail. Becky Wong said she was given the Notice of Release from Conditions of Bail at the safe house in the afternoon on 14 July. Dale Ko said he explained to her that she was no longer required to go to the ICAC to extend her bail on 16 July. Dale Ko could not remember whether it was before or after the taking of the statement from Becky Wong. Becky Wong said she signed the Notice and thought there was no more bail.
210. Ricky Chu said he decided to release Becky Wong from bail sometime in the morning on 14 July. He said he wanted to be fair to Becky Wong, and it had nothing to do with D4's visit or any application for habeas corpus in the offing. He signed the Notice of Release from Conditions of Bail and gave it to Patrick Ho for delivery to Becky Wong at the safe house. Patrick Ho said the purpose of any bail was for Becky Wong to report back to the ICAC. Since she was in a safe house, there was no need to do so.
211. Mr Ryan said he did not grant the immunity to Becky Wong on 14 July. He said basically, when he authorized the taking of the non-prejudicial statement on 9 July, Becky Wong's status changed from suspect to witness. At any rate, there was a process of metamorphosis and a person could be a suspect and a potential witness at the same time. The Semtech file was only sent to the DOJ for advice on 21 September 2004. Mr Ryan's second-in-charge advised that immunity to be given to Becky Wong before she gave evidence in court. Mr Ryan countersigned the advice at some later stage.
212. Also on 14 July, Becky Wong signed a resignation letter addressed to Semtech. It was sent by the ICAC on 15 July.
213. Frankie Chung received a cheque dated 14 July 2004 in the sum of $50,000 drawn at Ever Brilliant's account with the Dah Sing Bank from D2. It was for the legal visit with D4 in connection with Becky Wong.
Thursday, 15 July 2004
214. At 8.45 am, Dale Ko went to the safe house. He was instructed to find out the SMS message in Becky Wong's mobile phone. Becky Wong gave him her mobile phone separately with the Semtech SIM card. The Semtech SIM card was then inserted into her mobile phone. They read the SMS about request to call lawyer Chung together. At that time there was another SMS in the phone. Dale Ko said they did not read this second SMS because he was focusing on the lawyer Chung message. Afterwards, Becky Wong voluntarily surrendered the mobile phone and SIM card to him. He was never instructed to take away Becky Wong's SIM card. Dale Ko did not get around to read the other SMS message until later that evening.
215. In the morning 15 July, Mr Ken Li, chauffeur of D1 (whose statement has been read out) received $200,000 cash from D1 and deposited it into an account at the Dah Sing Bank and returned the deposit slip to D1. Ken Li recognized the deposit slip of the Dah Sing Bank showing that at 9.39 am on 15 July 2004, $200,000 were deposited into the account of Ever Brilliant.
216. At 10.23 am on 15 July, the hearing resumed before Yam J. Before the hearing, Ricky Chu gave a blank pro-forma MOU to Mr Ryan. He also translated orally to Mr Ryan the statement in Chinese of Becky Wong dated 14 July 2004. However, Mr Ryan was not told that Becky Wong had taken the Semtech SIM card without the knowledge of the ICAC.
217. Ricky Chu said he decided not to produce the MOU signed by Becky Wong. The statement signed by Becky Wong on 14 July 2004 was ideal evidence to deal with the application for habeas corpus.
218. At the outset of the hearing, Mr Ryan applied for the hearing to be in camera and it was so ordered. Mr Clement said the reporters left the court room.
219. While in camera, Mr Ryan applied for adjournment until 10 am the next day. He told the court that Becky Wong had agreed to be a witness in a serious ICAC investigation relating to the Prevention of Bribery Ordinance, and she was not unlawfully detained. Hence, there was no urgency. Yam J said that was contrary to the Affirmation of Frankie Chung and therefore it was imperative that Becky Wong should be brought to the court to tell His Lordship her wish, and adjourning it to the next day meant further detention of 24 hours. Mr Ryan then disclosed that Becky Wong was actually a participant in the WPP under the Witness Protection Ordinance. He read out section 17 of the Witness Protection Ordinance and handed a copy of the Ordinance to the Court and D4.
220. Mr Ryan then submitted that he did not really know who the applicant was, and he was not even sure who D4's client was. Yam J said that anyone could apply on her behalf.
221. Mr Ryan said he proposed to brief Mr McCoy, SC, and he would be back from Sydney at 5.40 pm. Yam J said he could not wait for him.
222. Mr Ryan said he could establish that Becky Wong was not being unlawfully detained. Yam J said the best way was for her to say so. Mr Ryan said if she was to come to court, and perhaps having other people looking at her, eyeballing her, might have an adverse effect on her well-being and safety. Mr Ryan produced to the court the witness statement of Becky Wong to contradict the affirmation of Frankie Chung. D4 said he suspected that the witness statement was written by an ICAC officer. Yam J said it was in direct contradiction to para 4 of the Affirmation of Frankie Chung. Mr Ryan said he wished to have it reduced to affidavit form sworn by Becky Wong. Yam J said that it boiled down to one thing: if Becky Wong was voluntary, she could come to court to say so.
223. Mr Ryan said he had information that the whole application might well have come from one of the major parties involved in the investigation. If she was brought to court, he feared that eyeballing might take place. And even D4, with his paternal appearance and bonhomie, might induce the witness to feel that she should go with the other side. Yam J said it was a bit far fetched.
224. Mr Ryan submitted that the evidence that Becky Wong was unlawfully detained was very thin. Mr Ryan then referred to the MOU under section 6 of the Witness Protection Ordinance. He said Becky Wong had signed the MOU, but he was only showing the court a blank pro forma as the Approving Authority was not required to disclose information. Mr Ryan did not even wish D4 to see it. He felt it had serious ramification for future and might find the floodgate opened.
225. Yam J signed the writ of habeas corpus and made the following directions:
"(1) (Becky Wong) should be brought to the appropriate court through the CSD channel without being exposed to any member of the public, including of course the press.
(2) Hearing at 3.30 pm shall be in Chambers and if she requests it, then it can be done through the video link in the appropriate court. And for that reason, I also fixed 3.30 because certain technical arrangements will have to be made until 3.30 pm.
(3) There should be no communication with any other person of my order issuing the habeas corpus now, today, and in particular with members of the press, and anything that has transpired in this Chambers this morning, and I would like to have an undertaking from counsel and solicitors and all persons present in Chambers to that effect."
226. Yam J said it was a strictly tight-lipped order. Both D4 and Mr Ryan gave the court their undertakings.
227. D4 said that he accepted that it was desirable that the matter be heard in chambers and Becky Wong be interviewed by His Lordship and not by counsel. If having been fully apprised of her rights, she said to His Lordship that she wanted to remain in the WPP and wanted to remain with the ICAC, he would then withdraw the proceedings.
228. The hearing before Yam J concluded at 11.23 am.
229. Mr Ryan said the MOU was never shown to Yam J and the subsequent courts because under the WPP, there is no obligation to disclose the documents under the WPP. Once the courts were apprised of this, they did not press for disclosure and the matter was not pursued.
230. After the hearing before Yam J, there were lots of reporters outside the court. Mr Ryan said he could not tell them anything because Yam J had made an order preventing the disclosure of the details, but D4 told them that there would be another hearing at 3.30 pm.
231. The record shows that before the hearing before Yam J concluded, at 11.11 am, D3 rang Carmen Hsu for 35 seconds (Call 257), and at 11.47 am, Carmen Hsu rang D4 for 60 seconds (Call 258).
232. Before lunch on 15 July, Mr Ryan decided to appeal against Yam J's refusal to grant an adjournment. He telephoned to inform D4 accordingly.
233. At 12.57 pm, there was a telephone call from D1 to D4 (Call 261). During the prosecution case, the conversation was admitted by consent only as between the prosecution and D4. Since D4 had given evidence confirming this call, the content becomes admissible generally. The transcript of the call is as follows:
"D4: Hello!
D1: Hello! Is it Mr EGAN?
D4: Yep.
D1: This is Derek.
D4: Yes, Derek.
D1: What is the situation?
D4: Well, Derek, mm, we were before the Judge this morning...
D1: Yep.
D4: ...mm...mm, I'm not allowed to tell anybody what happened before the Judge because I've given him an undertaking that I wouldn't.
D1: Okay.
D4: But let's put it this way, mm... I walked out of court smiling, and the other side walked out of court not smiling.
D1: Okay. Thank you!
D4: But, wait on, there's now, they are appealing against the Judge's order and there is an appeal listed for 2.30 okay?
D1: 2.30?
D4: An emergency...2.30...
D1: Okay.
D4 ...an emergency hearing at 2.30...
D1: Okay.
D4: ...and may be another meeting at 3.30 back before the same Judge. Andrew is going to come up at lunchtime, so I'll try to explain to him without breaching my undertaking to the Judge what the situation is and no doubt he will contact you, okay?
D1: Okay. Thank you very much! Thank you!
D4: Bye Derek, bye.
D1: Thank you! Bye."
234. At about lunchtime, Mr Clement said D4 rang him to say that Mr Ryan was applying to the Court of Appeal that afternoon for a stay of the order of Yam J.
235. At 1.01 pm, D3 rang D4 for 86 seconds (Call 262). Then at 1.05 pm, Carmen Hsu rang D3 for 31 seconds (Call 263).
236. Sometime after 1 pm on 15 July, D4 had lunch with Mrs Mary Jean Reimer Lau (PW13) and Mr Martin Yeung (PW14) at the Grissini's Restaurant in Wanchai. The content of the conversation is only evidence against D3, and will be referred to later. But Mr Yeung said the lunch only lasted about half an hour. D3 said he had an appointment with D4 at the FCC. At about 1.40 pm, the 3 of them took a taxi to Central.
237. At 2.12 pm, D3 rang Carmen Hsu for 88 seconds (Call 263).
238. Between 2.10 pm to 6.15 pm on 15 July, Dale Ko accompanied Becky Wong to Central where they were on standby to go to the court, if necessary. Eventually, they were told there was no need.
239. At 2.37 pm on 15 July, the stay was heard before Stock and Yuan JJA of the Court of Appeal. Both Mr Ryan and D4 were present. Mr Ryan applied for the hearing in camera and it was not opposed. At 2.38 pm, the court went into camera.
240. Mr Ryan informed the Court of Appeal on the background of the case. He told the court that Becky Wong agreed to be a witness for the prosecution and was in the WPP. D4 said there was no evidence from the appellant before the court.
241. Mr Ryan said Becky Wong had signed the MOU and was in a safe house. There was provision in the Witness Protection Ordinance for anyone to withdraw from the programme.
242. Stock JA asked for the MOU and Mr Ryan said he did not have it. It was a secret document and he did not want to produce unless the court wished to see it. He showed Stock JA a pro forma MOU.
243. D4 complained that in the morning he asked to see two documents that Mr Ryan referred to before Yam J and he was shown neither over Mr Ryan's objection.
244. Stock JA commented that it was unusual for a judge on an ex parte application to actually order that to be a return, but be that as it may, a return was a very simple document and queried why an adjournment was needed.
245. Stock JA raised with D4 that if Becky Wong was under WPP and if the ordinance says a person was free to withdraw from the scheme at any stage, it must follow that the person was not being detained. D4 replied that there was not one shred of admissible evidence before the court.
246. Stock JA raised with D4 from where did he establish that the lady concerned had given instruction that she was being detained. D4 said he would go through all the links in the chain. His instructing solicitor was Mr Clement, who personally took instruction from the lady who was the partner. D4 read out his complaint letter to the ICAC that "I have instructions, however, from her business partner Miss Chui Man-sze, Mandy, that Miss Wong is being held against her will and wishes to be released immediately." Yuen JA asked why D2 had not provided an affidavit. D4 said because they had a later piece of information from the solicitor's clerk Frankie Chung.
247. Stock JA asked D4 what reason did he have to believe what the court had been told by the ICAC through Mr Ryan was untrue. D4 replied that he only heard it that morning, and his reaction was exactly the same as Yam J. Stock JA said never mind Yam J's reaction, it was one hell of a story to be making up. D4 said through his long, bitter experience with the ICAC, what he had learnt was that they were not adverse to putting pressure on people to achieve the ends they wished to achieve. He had ingrained suspicion that Becky Wong might well be in a situation where she had really got no option, she was persuaded by ICAC officers into being a witness. And opposed to that, he had got two accounts, one from a business partner and one from Mr Frankie Chung, the solicitor's clerk, who knew her personally.
248. The Court of Appeal adjourned for a brief moment, and Stock JA ruled that the most they were prepared to contemplate on Mr Ryan's application was to stay the matter until 4.30 pm that afternoon. The court said that Mr Ryan had appeared with not an iota of evidence before the court that Becky Wong was not in the custody of the ICAC, but that she was subject to the programme to which the Witness Protection Ordinance gives effect. The court expressed their disappointment with the way the ICAC and their legal advisers had reacted to proceedings since the day before. The stay granted until 4.30 pm that afternoon would give sufficient time to draft and serve the return and short affirmation or affirmation in draft with an undertaking to have it sworn as may be necessary. The court ordered the case to be transferred to Hartmann J, the Judge in charge of the Constitutional and Administrative List. The Court of Appeal rose at 3.27 pm.
249. Mr Clement said after the hearing before the Court of Appeal there were the inquisitive press outside. D4 did not disclose the proceedings which went on in camera.
250. The record shows at 3.30 pm and 3.32 pm, Carmen Hsu rang D4 but the durations were 0.1 minutes, and apparently, the calls were not answered (Calls 267 and 268). At 4.05 pm, D3 rang Carmen Hsu for 56 seconds (Call 269).
251. At 4 pm on 15 July, Eric Yang was in the Chater Garden on a fire alarm evacuation. Rebecca Li asked him to go see Mr Ryan. He did not know what the matter was because Rebecca Li did not tell him in public.
252. Eric Yang arrived at Mr Ryan's office and Ricky Chu was also there. He learnt from Mr Ryan for the first time about the habeas corpus application. He said Mr Ryan said they had to hurry because the court only granted a short adjournment. Mr Ryan repeatedly asked him whether Becky Wong had voluntarily joined the WPP and he told him so. Mr Ryan also asked things on the MOU and he said either the witness or the Approving Authority could terminate it at any time. He was not asked about the requirement of the signature of the Approving Authority and he did not volunteer it. Mr Ryan drafted the certificate in return to the Writ of habeas corpus and the Affirmation for Eric Yang. After drafting the same, Mr Ryan left for court first. Eric Yang remained at the DOJ to wait for the typing of the certificate and Affirmation.
253. The certificate in return to the writ of habeas corpus was as follows:
"I, Yang Yang Tak, Eric, in obedience to the writ herewith do certify and return that Wong Pui Sze, Becky is a witness under the Witness Protection Programme, having signed a memorandum of understanding on the 13th day of July 2004.
Consequently she is not detained under the custody of the Independent Commission Against Corruption.
Consequently the Commissioner of the Independent Commission Against Corruption is unable to comply with the order made pursuant to the writ."
254. Eric Yang said that he assumed that Gilbert Chan had already signed the MOU. He did not suggest Mr Ryan to mention the signature by the Approving Authority in the certificate because he did not know what to be included in it, and assumed that Mr Ryan would know the provision of the Witness Protection Ordinance.
255. A draft Affirmation in the name of Eric Yang was prepared in the following terms:
"1. I am Principal Investigator attached to the Independent Commission Against Corruption in Hong Kong and I am in charge of the Witness Protection Unit.
2. The procedure we follow in carrying out our duties is governed by the Witness Protection Ordinance Cap. 564.
3. Wong Pui Sze, Becky signed a Memorandum of Understanding and consequently joined the Witness Protection Programme on 13th July 2004.
4. She is currently accommodated in a safe house, upon her agreement.
5. Pursuant to the Memorandum of Understanding she is free to give written notice to the Approving Authority at any time that she wishes to terminate her protection and assistance under the Witness Protection Programme.
6. She is free to come and go as she pleases, and has access to communicate with whoever she pleases and is not in detention or under ICAC custody or control.
7. There is provision for the Approving Authority, namely the Witness Security Panel of Independent Commission Against Corruption to terminate the person's protection and assistance in certain circumstances."
256. The draft Affirmation was not affirmed but Eric Yang said it was true to his belief and he was prepared to affirm it, as he did not know that Gilbert Chan had not signed the MOU as at 15 July 2004. After signing the certificate, Eric Yang also went to court.
257. Mr Clement said prior to the hearing before Hartmann J, the reporters were outside the court. When he was talking to D4 and Mr Ryan, one Chinese female reporter (whose identity Mr Clement cannot remember) asked D4 something relating to the WPP. Mr Clement was not sure whether the question was whether Becky Wong could be on a witness protection scheme, or was there a witness protection scheme. D4 replied: "Go and look up the Ordinance."
258. Miss Magdalene Chow (PW12) was the Chief Court Reporter of SCMP in July 2004. She said she had spoken to D4 during the break in Hartmann J's hearing between 5.34 pm and 5.56 pm rather than before the hearing.
259. In July 2004, Magdalene Chow had known of D4 for 7 to 8 years although she had not spoken to him. In the morning of 15 July, her colleague Sara Bradford was not feeling well and asked her to cover the habeas corpus application. Miss Bradford e-mailed some notes to her. Until then, Magdalene Chow had not been covering the case and she was not aware of the hearing before Yam J.
260. In the afternoon of 15 July, Magdalene Chow spoke to other journalists to learn what had happened in the case so far. Magdalene Chow said she heard the term "protective custody" from Sara Bradford. She did not know what it meant and she rang Charmaine Mok to find out the meaning.
261. Charmaine Mok said she received a phone call from Magdalene Chow at about 3 pm to 4 pm, saying that she heard the term "protective custody" from a lawyer outside court and she asked for the ICAC interpretation of the phrase. Charmaine Mok did not reply since she thought it was sensitive.
Court adjourns - 4.43 pm
12 June 2006
13 June 2006
Court resumes - 9.33 am
All defendants present. Appearances as before.
262. At 4.38 pm the hearing before Hartmann J started. Mr Ryan and D4 were present. Mr Ryan applied for the court to be in camera and it was unopposed.
263. Mr Ryan informed the court that the ICAC officer who had signed the nil return to the writ of habeus corpus was present in court. He read out the certificate of Eric Yang. Then Mr Ryan handed up and read out the draft Affirmation of Eric Yang.
264. D4 read out the affirmation of Frankie Chung, and referred to his visit to the ICAC and the letter of complaint. D4 said one of the problem with the ICAC was they were overzealous. He said it was highly possible that Becky Wong was surrounded by a bunch of ICAC officers in the safe house saying that they wanted her as a witness, if not, she would be a defendant. He was just speculating that Becky Wong was going to be compliant and submissive. D4 said he would be happy with what Yam J was going to do, i.e., to tell her that she was free to express her option in the court.
265. Mr Ryan said that the application for adjournment was on the basis that they wanted to prepare affidavits. The adjournment was not granted and they were not in a position to present any affidavits.
266. Hartmann J said he had got a return saying that Becky Wong was in the WPP, and she might have signed up to the WPP, but there was no evidence before the court that she was free to come and go. The question was whether she was voluntary or whether she was being held there.
267. Mr Ryan said he handed up Becky Wong's statement in Chinese to Yam J in the morning. Yam J read it but apparently saw fit to disregard it. He invited Hartmann J to have the statement translated through an interpreter.
268. D4 said Yam J was skeptical of the statement because it was written by an ICAC officer and Becky Wong's signature apparently appeared on it. Yam J took the view that the only way to be satisfied of her real situation was if she sat down and answered a question from the court where she wanted to be. There was a degree of paranoia on the other side that they might not want to get the answer and were doing everything to frustrate that.
269. Mr Ryan said he was fearful of the floodgate that this sort of applications were being made on a regular basis.
270. Hartmann J said if in fact Becky Wong did not want to be in the WPP and she was being held there against her will, then she was being held unlawfully. His Lordship said he did not have a return that she had been asked. Mr Ryan replied that she had been asked, and she had given an answer. Hartmann J said the simplest way was to ask whether she would agree to come along, and her identity would be protected from the press. His Lordship said that the liberty of the subject in the common law tradition in any democracy was critical.
271. Hartmann J then adjourned from 5.34 pm to 5.56 pm to consider his ruling.
272. Magdalene Chow said she saw D4 and Mr Ryan come out of the court to the lobby during the break before a single judge. She said the reporters surrounded the lawyers and asked questions. Mr Ryan said he was not allowed to say anything. D4 was also asked questions and initially he said he could not say anything and they were just having a break.
273. Magdalene Chow said she went over to D4 by herself. There was a lady who was not a journalist with D4. Other reporters were somewhere nearby. She had no idea whether Mr Clement was there. Magdalene Chow asked D4 what protective custody meant, and D4 told her to look up the Witness Protection Ordinance, Cap.564, and also the Criminal Procedure Ordinance. Magdalene Chow had never heard of the Witness Protection Ordinance and she heard it for the first time from D4. She asked D4 whether he knew where Becky Wong was. D4 said he did not know. D4 said he had gone with a solicitor to the ICAC twice to look for Becky Wong, and an officer told D4 that he did not have an appointment and Becky Wong was not with them, and D4 could do whatever he liked. Then D4 and the others had to go back into the court.
274. At 5.56 pm, the court resumed. Hartmann J gave a brief ruling. His Lordship noted the nil return on the basis that Becky Wong was a voluntary member of the WPP. His Lordship said the simple issue was whether she was or was not unlawfully detained. Since there was a dispute, the matter must be set down for a substantive hearing. His Lordship said that D4 rightly pressed the point that if the liberty of the subject was in issue, then even an hour might be too long. His Lordship set the hearing down at 3 pm the next day, and directed the parties to file affirmations, if any, by 12 noon the next day. His Lordship said to Mr Ryan that he expected some evidence of real value tomorrow. The hearing before Hartmann J on 15 July finished on 6.10 pm.
275. In the evening on 15 July, the Judiciary Website posted the notice of hearing of "Wong Pui Sze Becky vs. ICAC" before Hartmann J in Court at 3 pm on 16 July 2004 in respect of habeas corpus hearing.
276. Magdalene Chow said when the people came out of the court again, she asked Mr Ryan what happened and he said he had to come back the next day. She went up to D4. There were also other reporters there, but she did not know whether Mr Clement was there. D4 also said he had to come back at 3 pm the next day as he had to go to the District Court. D4 said that Yam J granted the habeas corpus. Then someone asked D4 a question, and D4 mentioned the WPP, and he also said the ICAC had authority to give certain witness protection, to change identity, to provide money and a flat to live in. D4 also said: "Eric Yang, ICAC Chief Investigator, was in charge of the WPP." Magdalene Chow said throughout that afternoon she noticed Eric Yang was outside court. Eric Yang was known to the journalists and herself to be a senior ICAC officer, but she did not know that Eric Yang was in charge of the WPP. Magdalene Chow asked D4 whether one was allowed to refuse to be a witness. D4 replied that if the ICAC were surrounding you, you could do nothing else. D4 said they had to come back the next day, and ICAC needed to bring Becky Wong to court to explain whether there was legal basis for keeping her. Magdalene Chow asked whether they could choose not to bring her. D4 said the ICAC had better offer a better explanation.
277. Eric Yang said he saw D4 and other lawyers come out of Hartmann J's court. D4 was surrounded by at least 2 female reporters. Eric Yang said he and D4 could see each other. He knew D4 as D4 had represented clients under his investigation. Eric Yang said D4 should also know him because D4 was once present in an interview of a suspect conducted by him, and he gave evidence in a case where D4 was defence counsel.
278. Magdalene Chow said after she talked to D4, she noticed Mr Clement in the lift lobby on the court floor. She followed Mr Clement into the lift and on the G/F. She asked Mr Clement that she did not understand why after Yam J granted the habeas corpus, and Becky Wong was not released. Mr Clement said that a return to the habeas corpus had to be filed. Mr Clement said he did not know where Becky Wong was.
279. Mr Clement said he did not hear D4 breach the gag order of Yam J and D4's responses to the press were guarded.
280. After Magdalene Chow talked to Mr Clement, she went to the press room in the High Court. A female reporter of the Sun newspaper showed her some documents in the case: the application for habeas corpus, the Affirmation of Frankie Chung with the complaint letter written by D4 exhibited to it. Magdalene Chow read the complaint letter. Then she typed the draft of an article in her computer and e-mailed it to the editor. The draft article was based on information then generally available amongst the journalists.
281. After Magdalene Chow e-mailed the draft article, she rang the Duty Editor and said she wanted to add one paragraph to the draft article. Magdalene Chow dictated the following paragraph on the telephone: "A legal source said it was believed that Ms Wong was in the ICAC's witness protection programme." Magdalene Chow said she got this idea from D4. She said although they were not the words used by D4, that was the only reasonable and logical inference she drew from the two conversations she had with D4 on 15 July.
282. The record shows that during the hearing before Hartmann J on 15 July, between 5.09 pm and 6.25 pm, D3 rang Carmen Hsu 4 times, 3 of which lasting 73 seconds, 75 seconds and 413 seconds (Calls 272, 274 and 278).
283. At 6.26 pm on 15 July, D3 called D4 for 138 seconds (Call 279). Later at 7.07 pm and 8.30 pm, D3 made two calls to Carmen Hsu for 264 seconds and 132 seconds (Calls 281 and 282).
284. Raymond Lam said D2 was not present at the hearings on 15 July. The lift CCTV footage of 9 Queen's Road Central on which 22/F was D3's office shows that at 4.17 pm D3 went up to the 22/F, and at 4.50 pm, D1, D2 and William Lau also went to the 22/F. Later at 6.34 pm, D1, D2, D3 and William Lau went down to the G/F.
285. Raymond Lam said he briefed D2 about the problem of the case from time to time. However, due to the restriction in the Witness Protection Ordinance, he did not mention to D2 that Becky Wong was a witness nor did he mention the WPP. He just told her the overall progress without disclosing the details.
286. Raymond Lam informed D2 that she had to make an Affirmation for the hearing before Hartmann J on 16 July 2004.
287. The lift CCTV footage shows that at 6.57 pm on 15 July, D2 went to the floor on which Massie & Clement was situated. Raymond Lam said he took instructions from D2 alone to draft an affirmation. He also had the notes of Mr Clement. D2 gave instructions in Chinese, he wrote down the gist in English, and halfway through he typed directly into the computer in English. Raymond Lam said the draft Affirmation represented the gist of what D2 had told him. The lift CCTV footage shows that D2 went down the lift at 8.07 pm.
288. A cheque dated 15 July 2004 in the sum of $150,000 payable to Massie & Clement drawn on Ever Brilliant's account at the Dah Sing Bank was issued.
289. Tony Lo said in the evening of 15 July Eric Wong told him to take the MOU for signature by Gilbert Chan the next morning. Tony Lo was out of the office for arms training on 14 July. On 15 July he was also out of the office for some part of the day, but was back in the office for 3 periods in the morning, at noon and in the evening. However, he was engaged in training and did not get around to take the MOU to Gilbert Chan for signature.
290. Also in the evening on 15 July, Dale Ko read the other SMS's in Becky Wong's mobile phone in the safe house. Becky Wong did not read them with him. The various SMS's were:
No.
Time
(Hour)
SMS Text
97131117
12/07/04
16.20
B, request to call chung lawer at onec 94918232.M
90424468
14/07/04
20.21
Be strong, lawyer will save u.
90424468
15/07/04
21.46
We are believe u.
90424468
15/07/04
21.48
Come out and u will be ok!
90424468
15/07/04
19.27 (1st Message)
Judge will see u tomorrow at 3-00 pm. Watch the news, we are saving u. Be firm.
90424468
15/07/04
19.27 (2nd Message)
Judge will see u tomorrow at 3-00 pm. Watch the news, we are saving u. Be firm.
90424468
15/07/04
19.57
If u are stressful, remember to cry
291. Becky Wong said apart from the first SMS, she did not read the other messages.
292. Dale Ko said he told Becky Wong about the other messages. He told her the sender's number and she knew they were from D2. He said Becky Wong was in a bad mood and she did not have much reaction. Dale Ko also informed Patrick Ho of the SMS's at some stage.
293. At 10 pm to 10.30 pm, Charmaine Mok received press enquiries from the Oriental Daily, the Sun, Hong Kong Economic Times and Sing Tao Daily on whether Becky Wong was in the WPP, and what was the ICAC response to the court's decision.
Friday, 16 July 2004
294. On 16 July an article entitled "ICAC is holding me illegally: secretary" under the by-line of Magdalene Chow and Sara Bradford was published in the SCMP. The article contained this sentence: "A legal source said Ms Wong was in the ICAC witness protection programme." Magdalene Chow said her original words of "it is believed that" were edited out by the editor.
295. At 8 am on 16 July, Tony Lo took the MOU to Gilbert Chan's office, and Gilbert Chan signed it. Gilbert Shan said it was normal that he signed the MOU 2 or 3 days after the witness had signed.
296. In the morning of 16 July, Ken Li, D1's chauffeur, received $200,000 cash from D1 and deposited it into an account at Hang Seng Bank. Ken Li recognised the deposit slip of Hang Seng Bank showing that at 9.23 am on 16 July 2004, $200,000 were deposited into D1's account.
297. The lift CCTV footage shows that at 10.40 am on 16 July, D2 arrived at 7/F of the building of Massie & Clement. Raymond Lam said D2 came for the purpose of making the Affirmation.
298. D2's Affirmation was written in English. Raymond Lam said it was a language D2 did not understand. He read the translation of the Affirmation in Chinese to D2, and D2 did not raise any objection nor ask to add, correct or delete. Raymond Lam did not read out the affirming words "solemnly and sincerely affirm" in Chinese, but he confirmed with D2 that she had to tell the truth under swear. Raymond Lam said he had no doubt that D2 understood the contents of the Affirmation.
299. The contents of D2's Affirmation are as follows:
"1. Matters deposed to herein are within my knowledge and true or have been told to me by those persons referred to in this affirmation which I believe to be true.
2. I am a shareholder and a director of Ever Brilliant Consultants Limited. I am holding 70% of the shares and Wong Pui Sze, Becky being the other shareholder and director holding the other 30%. Becky is my business partner and friend for more than 2 years.
3. On the morning of Sunday 11th July 2004 I called Becky using my cell phone (90424468), I got no answer. I called her again using another Sim card, again I got no answer, I then left a message for Becky to call me back.
4. After a minute or 2, Becky called. I asked her whether she was at home, and she said she was. Then she whispered "They are at my home." Then I said "they?". She then said "ICAC". After then she told me in her normal voice that she cannot join me that night. I then further asked whether she will call me that night and she said "I think not".
5. On the morning of Monday 12th July 2004, at shortly before 11.00 am, I received a call from Becky on my usual cell phone number (9042 4468) without any caller display. She was speaking in a very faint and trembling voice, told me to call her using my other telephone number. I called Becky on her cell phone number (6083 3118), but it was switched off. Moment later, Becky called again and asking me why I did not call her. I told her because I did not have her number, she then gave me a number (9534 4584) to call her and I did.
6. She said she was having great difficulties in calling me because in the night before when they saw on the caller display that Mr Wong was calling her, they snatched her phone, confiscated her Sim card and refuse to let her answer that call and then only gave the phone back to her. So she could not have made any call. She further said that she is able to make the call to me because she insisted on the Monday morning to go back to the office of Simtech to collect her personal belongings, while she was at the office she managed to get hold of another Sim card without being noticed. She then told me she was calling from a toilet and she did not know where she is now but she is not at home and she was making this call in secrecy. She further said she will try to contact me in secret again that night. Since then I have not heard from her and I have been trying to contact her since. I have called her cell phone number and the number she gave me but to no avail.
7. Then on the next day Tuesday 13th July 2004, I went to my solicitors Massie & Clement to instruct my solicitors to make enquiries about Becky with ICAC on my behalf.
8. I believe Becky is in the custody of the ICAC although I do not know where. I believe she has been held in excess of 48 hours and thus any restraint without her consent is unlawful. I have not been told that she has been charged.
9. I do worry about the well being of Becky, because all her close family members are not in Hong Kong."
300. The Affirmation of D2 did not include an oath of Raymond Lam that he had interpreted the oath or affirmation to D2.
301. With regard to the word "snatched", Raymond Lam said he could not remember which Chinese word D2 actually used. D2 might have used "snatch", "take" or "taken". He used the word "snatch" to mean an object was being taken from one person by another in a rather hasty manner. He felt that D2 said that Becky Wong surrendered the SIM card to the ICAC involuntarily or against her will, hence he thought the word "snatch" was appropriate, and he also used the word "confiscated". Raymond Lam said he recalled D2 was telling him what Becky Wong said, rather than D2 only had the feeling so, because if D2 only said she had such a feeling, he would have so put down in the Affidavit.
302. D2 was in Raymond Lam's office for about 5 minutes. The lift CCTV footage shows that Raymond Lam and D2 took the lift to the 12/F at 10.45 am. They went to another firm of solicitors on the 12/F of the same building to make the Affirmation before Miss Chan Pui-kwan (PW42), a solicitor. Miss Chan confirmed D2's identity, and confirmed that she understood the contents of the Affirmation. Then D2 signed the Affirmation. At 10.48, Raymond Lam and D2 went down to the 7/F.
303. The lift CCTV footage shows that at 11.12 am, D1 went to 7/F on which Massie & Clement was situated, then at 11.34 am, D1 and D2 went together from 7/F to G/F.
304. Becky Wong was asked to comment on the Affirmation of D2 dated 16 July 2004 in court.
305. In respect of paragraph 4, Becky Wong probably had told D2 that she was at home. She could not remember whether she told D2 that she could not meet D2 that night, which would be an unusual thing to say as she would not normally see D2 at night. However, she never intended to send any coded message to D2.
306. In respect of paragraph 5, she did speak with a soft voice, but D2 should be able to hear her. She did say that she was calling secretly while hiding in a toilet. Becky Wong was adamant that she did not speak with a trembling voice, but she did not think D2 was lying if she thought she was trembling.
307. In respect of paragraph 6, Becky Wong did tell D2 she had difficulties calling her. To her recollection, she did not tell D2 the ICAC saw D1's name on the caller display, but could not suggest how D2 got that information. She supposed she had not told D2 the ICAC refused to let her answer D1's phone. She never told D2 the ICAC confiscated her phone from her and the ICAC never did so. She also did not tell D2 the ICAC confiscated her SIM card. She did tell D2 that she was able to make call because she picked up the stored value SIM card from the Semtech office, but she never said she insisted to go to the Semtech office. She might have said she picked up the SIM card without being noticed. She never told D2 anything about changing the SIM card which was different from what she told the Court. She did say she was not at home but she never told D2 she did not know where she was because she knew where the safe house was. She did not tell D2 she would try to contact her again.
308. In respect of paragraph 8, Becky Wong said she never told D2 she was held without her consent. She did tell D2 she was safe and sound at least twice.
309. In respect of paragraph 9, Becky Wong said her parents, elder brother and elder sister all lived in Hong Kong. She never told D2 that her close family members were not in Hong Kong. D2 once asked her to help distribute some advertising leaflets of the beauty salon and she told D2 that she had an elder sister working for an airline and her sister might get some addresses of airlines and travel agents in Hong Kong. Although she did not mention that her sister worked in Hong Kong, D2 should know that because the leaflets were to be distributed in Hong Kong.
310. Becky Wong's father, mother and sister Ada Wong all said they were living in Hong Kong and had regular contacts with Becky Wong.
311. Becky Wong said she never told D2 or Frankie Chung about being protected by ICAC since she was told by the ICAC not to disclose it.
312. Becky Wong agreed that in speaking in a soft voice and saying she was hiding in the toilet, she might have sent misleading signals to D2.
313. At 2.15 pm on 16 July, Frankie Chung went to the High Court. While waiting in the witness room, he read the Affirmation of Becky Wong where she...
Court adjourns - 10.41 am
Court resumes - 11.16 am
314. On 16 July 2004, Becky Wong also filed an affirmation in the habeas corpus proceedings. The content is as follows:
"1. I am 34 years of age and I have completed Form 5 Secondary School and I can read and write English.
2. On 13th July 2004, I signed a Memorandum of Understanding (hereinafter referred to as 'MOU') in accordance with section 6 of the Witness Protection Ordinance, Cap.564.
3. Before signing the MOU, I carefully read its terms, understood them, and accepted them by signing my name.
4. I am not detained by the Independent Commission Against Corruption or by any person from it.
5. My participation in the Witness Protection Programme (hereinafter referred to as WPP) is entirely voluntarily. I have a mobile phone and I am not prevented from communicating with whoever I wish. I have chosen to regulate my movements and contacts in accordance with the advice given to me by those providing me with protection and assistance.
6. In the time since I have been in participation in the WPP I have not tried to contact any lawyer or legal advisor prior to the occasion when I spoke to a Mr Chung. I telephoned this person only because I received a text message on my mobile phone from Chui Man-si Mandy (hereinafter referred to as Chui), who is the girlfriend of Kanjanapas Chong Kwong Derek alias Wong Chong-kwong (hereinafter referred to as Wong). I was the personal secretary to Wong. The text message I received from Chui was 'B, request to call chung lawer at onec 94918232.M', which I understood to be a request from Mandy to me, Becky, to call a lawyer surnamed Chung at that number.
7. I did not know this lawyer Chung at all. I did call him once at that number as per Chui's request. Mr Chung suggested me to request to call him during office hours, but I did not undertake to call him.
8. After having spoken to him, I am sure that I never had any contact or communication with him before whatsoever.
9. I am aware of the location at which I am presently staying."
315. At 2.15 pm on 16 July, Frankie Chung went to the High Court. While waiting in the witness room, he read the Affirmation of Becky Wong where she stated that she was together with the ICAC voluntarily. Frankie Chung said he was in towering rage and thought Becky Wong was lying. Frankie Chung thought Becky Wong must have been joking with him when out of no reason, she called him at 1 am. She could have said she did not want a lawyer. Frankie Chung thought he was given trouble by Becky Wong. Later, Frankie Chung entered in his personal diary for 16 July: "At 1415 hours, arrived at court, once I read affidavit of Becky Wong, (I) was in towering rage, she was lying."
316. At 2.37 pm on 16 July, the Court of Appeal ordered a mention hearing. Mr McCoy SC appeared with Mr Ryan, so did D4. Stock JA said he wished to hear counsel in view of the press report that had appeared widely and possible breaches of the Witness Protection Ordinance. Stock JA ordered no reporting of the proceedings, and the court went into camera at 2.43 pm. Magdalene Chow said she was in the Court of Appeal, and was then excluded.
317. Then Stock JA referred to the bundle of press report, and in particular the article in the SCMP, and said "a legal source had said that the applicant with whom we are dealing was in the ICAC's WPP, and the letter that we have seen from Mr Egan in these papers is referred to and that includes a phrase that his client allegedly wished to leave protective custody." Stock JA said the court would send the papers in the case to the Secretary for Justice so that he may inquire, if so advised, whether there had been committed an offence under section 17 of the Witness Protection Ordinance or contempt of court.
318. At 3.05 pm, D3 called Carmen Hsu for 56 seconds. However, there was no call between D3 and D4.
319. At 3.08 pm, the substantive hearing before Hartmann J commenced. Mr McCoy applied for the hearing to be in camera. D4 indicated that from the outset, he did not oppose to the hearing in camera. At 3.12 pm, the court went into camera to hear Mr McCoy's reasons.
320. Mr McCoy submitted that there was no intention to have Becky Wong set free. The real objective was to have her brought to court which would have, in itself, potentially compromised her personal integrity and her utility as a witness. It would have frustrated the plain intention of the Ordinance. In response to the suggestion of an ulterior motive, D4 said that both he and his instructing solicitors had acted on instruction throughout. D4 pointed out that D2 was not his client. His client was his instructing solicitor, and he had instruction from his lay client. If D2 were misguided in what promoted her to approach the solicitors in the first place, so be it. D4 said he had read the Ordinance very carefully when Mr Ryan gave him a copy, and was aware that it is an offence to disclose the fact that someone was in the WPP. D4 said he would like to put it on the record that he made no disclosure to the press, but members of the press recognized "Mr Yeung Yan-tak, Eric " who made the return and provided an affidavit, and they recognized him apparently from previous cases and knew he was involved with the ICAC WPP. They deduced that Becky Wong was in some way a co-operating witness with the ICAC. Hartmann J directed the hearing to be in camera.
321. D4 said that Becky Wong had provided an affidavit, which obviously had been typed for her by someone on behalf of the ICAC. They had arranged for her to swear the affidavit. He said last night Mr Ryan indicated to him that he would require his witnesses to be present for cross-examination on their affidavits. He then indicated to Mr Ryan that he would require Becky Wong for cross-examination. D4 said that the question remained whether Becky Wong was a free agent in making the affirmation.
322. Mr McCoy pointed out that it was signed in the solicitor's office. D4 said that all he had asked over the last two days was to let her come to court and to tell his Lordship in the clearest terms so that there was absolutely no ambiguity that she was perfectly happy to be where she was.
323. Mr McCoy pointed out that the court got evidence from Becky Wong that she was not detained by the ICAC and was perfectly happy to be where she was in the circumstances. Once the return had been made, it was for D4 to prove that she was unlawfully detained.
324. Mr McCoy further submitted that he did not know who the applicant in the case was, because on the face of it, the applicant was the law clerk who moved between clients, fluctuating as circumstances required, one day acting for D1, the next day acting for Becky Wong, or trying to do it. Then Mr McCoy went through the authorities.
325. D4 said that an affirmation of D2 was affirmed, filed in the court, served on the DOJ and he read it out, which included the ICAC snatching her phone when they saw the caller display of D1. Then D4 referred to his visit to the ICAC on 13 July. The affidavit did not make it clear that whether she signed the MOU was prior or post in time. It could be that as a result of his attempting to see her, she was persuaded to sign the MOU. D4 asked why the ICAC did not tell him or instruct Becky Wong to tell his instructing solicitor that she did not want to see him because she was perfectly happy where she was. The ICAC had by their conduct led and forced him to believe that she was being held against her will. If the ICAC were telling the truth, they were the authors of their misfortune.
326. Then D4 read the affirmation of Frankie Chung and said, reading the two affirmations together, if those affirmations were true, Becky Wong was unable to make the affirmation and that is why both of them who had her authority to do so made the affirmations on her behalf.
327. D4 said he posed the question again, that the ICAC had made no attempt to disabuse him and his instructing solicitor of what he believed the situation to be on 13 July, either themselves or through Becky Wong. D4 referred to the affirmation of Becky Wong and said it was not the product of her own mind or genuine feelings; it had been created for her. And the immediate thing that came to mind was Stockholm syndrome. D4 said if his Lordship was concerned that effectively the court was not being duped, then surely the way to resolve it was for him to make his two witnesses for cross-examination, and Becky Wong be produced. He did not even need to cross-examine her. His Lordship could ask her four or five sensible, neutral questions to ascertain whether or not she was happy and appreciated the fact that she was a free agent and could walk out of the situation anytime she liked.
328. At 5.19 pm, Hartmann J delivered his determination in open court. For reasons which had to be debated in camera, his Lordship was not in a position to go into detail in the decision, save it sufficed that there were evidence before the court by way of sworn affirmation made at the office of apparently independent solicitors in Hong Kong that the subject of the application was not unlawfully detained. Hence, the court was satisfied that there was no unlawful detention of the subject. Hartmann J rose at 5.27 pm.
329. At 6.26 pm, D4 called D3 for 87 seconds (Call 309). The record shows that during 16 July, prior to Call 309, D3 had called D4 5 times, D3 had called Carmen Hsu 4 times, and Carmen Hsu had called D3 3 times.
330. On 16 July, Becky Wong cried again and considered withdrawing from the WPP because of the habeas corpus proceedings. However, she did not tell the ICAC because she rejected the idea, as she was afraid of losing ICAC protection. Becky Wong said throughout July, she never told the ICAC or anyone else that she did not want to be in the WPP. Becky Wong only first mentioned to the ICAC she had thought about leaving the WPP in her statement which started on 5 August and was completed on 16 August 2004.
331. Sometime in the afternoon on 16 July, Magdalene Chow received a phone call from D3. Magdalene Chow knew D3 quite well and regarded him as a friend. D3 would give her information on cases from time to time. D3 asked her whether the SCMP reported anything on the habeas corpus application on the previous day. Magdalene Chow said she supposed so but she had not read the newspaper yet. Magdalene Chow asked D3 why there was an exclusive report published by the Sing Tao Daily. As mentioned before, on 14 July the Sing Tao Daily published a report on the Semtech case with the sub-heading "Barrister alleges the ICAC of unlawful detention". D3 said he had telephoned Carmen Hsu at the early hours of 14 July, and said lightheartedly that it would not be suitable to call Magdalene Chow late at night since she was married. Magdalene Chow knew Carmen Hsu to be a reporter of the Sing Tao Daily.
Grissini lunch
332. The content of the conversation at the Grissini lunch is admissible against D3 only.
333. Mrs Reimer Lau worked as an assistant solicitor at D3's law firm from early 2002 to May 2004. Mr Yeung was D3's trainee solicitor from June 2002 to June 2004. Since May 2004, Mrs Reimer Lau started her own firm, and Mr Yeung had joined her firm in June 2004.
334. About a week before 15 July, Mr Yeung asked Mrs Reimer Lau to ring D3 to organize a lunch as Mr Yeung wanted to thank D3 for being his principal.
335. According to Mrs Reimer Lau, they asked each other about cases they were doing. D3 said he was handling a case involving the ICAC. Mr Yeung asked whether it was the Tung Chung River case. D3 said he was representing a director of Semtech. D3 criticized the modus operandi of the ICAC was not very forthright because the ICAC had unlawfully detained Becky Wong as Becky Wong did not have any friend or relative in Hong Kong, and nobody could help her. D3 said Frankie Chung, a solicitor's clerk, received a phone call from Becky Wong asking for help. Mrs Reimer Lau said she did not believe that Becky Wong could still make telephone calls if she were detained by the ICAC. Then D3 gave the example of a Miss Angela Gong to illustrate people could be held by the ICAC against their will.
336. It was elicited from cross-examination of the ICAC officers that prior to the present incident, Angela Gong was arrested by the ICAC. She was being considered for giving a non-prejudicial statement to the ICAC, and she asked for legal advice. The ICAC officers advised her to seek independent legal advice rather than from D3, as the ICAC believed that D3's fees would be paid by Miss Gong's employer, against whom Angela Gong's evidence was sought. The ICAC officers accompanied Angela Gong to Central for the purpose of visiting a solicitor. Miss Gong went by herself to the law firm, and instead of going there, she went to see D3 instead. Eventually, Angela Gong did not give any non-prejudicial statement. The ICAC officers said Angela Gong demanded an immunity before giving any statement and it was not acceptable to the ICAC.
337. Mrs Reimer Lau said D3 said he had planned the action of habeas corpus to help Becky Wong, and he was making the application. D3 said he was confident that the application would be successful. D3 said he would switch on all the machines against the ICAC.
338. According to Mr Yeung, they chatted about recent work. D3 said he recently accepted a case. Mr Yeung asked whether it was the Tung Chung River case and D3 said no, it was the Semtech case. D3 said the ICAC was in the wrong in getting hold of the girl surnamed Wong. It was not the first time and it was like the previous case of Angela Gong, and luckily, Angela Gong had lots of friends and he was able to rescue her. The girl surnamed Wong was not as lucky because she did not have any relative or friend in Hong Kong, and the ICAC liked to choose this kind of people as their target. D3 said it was false imprisonment and a report had to be made to the police. It was mentioned that an application for habeas corpus had to be made. D3 said with "our" habeas corpus , the ICAC would have a lot of trouble that evening as it would be urgent to brainwash the girl. D3 said if this time the matter could not be fixed, "I would switch on all the machines against the ICAC."
339. Mr Yeung said Mrs Reimer Lau asked D3 if the girl were caught, how could she made contact with the outside. D3 said that the girl surnamed Wong had 2 SIM cards. Mrs Reimer Lau said that even so, telephone calls could not be made. D3 said she made the calls in the toilet.
D3's file record
340. The client's progress diary in the name of D1 seized from D3's firm shows that D3 had meetings with D1 on 13, 14, 16 and 17 July 2004. D3's firm had issued a retainer letter dated 14 July 2004 in respect of an ICAC matter, and there was a signature above the name of D1 in confirmation of the retainer. A cheque dated 15 July 2004 in the amount of $200,000 payable to D3's firm at D1's account at the Hang Seng Bank was issued, and a receipt of D3's firm dated 15 July 2004 for $200,000 being costs on account was issued.
Events Subsequent to the periods of the conspiracies
341. The CCTV footage of Dah Sing Bank Central Branch shows that between 10.09 am to 10.14 am on 17 July 2004, D1 went to the counter. The deposit slip of Dah Sing Bank shows that at 10:15:57 am on 17 July 2004, $150,000 were deposited into the account of Ever Brilliant.
342. On 19 July 2004, D4 wrote to the Secretary for Justice in respect of the referral by the Court of Appeal to the Secretary. D4 denied that he had made any unauthorized disclosure to the press. He stressed that he faxed the complaint letter to Carmen Hsu at 11.30 pm on 13 July 2004 before Yam J made the gag order. He wrote that "Those of us who regularly defend ICAC cases, including myself, therefore 'play the ICAC at their own game' by using the press against them by exposing, in particular, excess of power by them. All perfectly legitimate I might add." D4 also sought to explain the reference to protective custody in the letter of complaint. He wrote "The reference to 'protective custody' (note the inverted commas) on page 2 of annexure A was meant to be a cynical, mocking challenge to the ICAC, insinuating that she was not being held legitimately but rather that pressure was being put on her whilst she was a virtual prisoner, to get her to co-operate in some way with the ICAC."
343. On 21 July 2004, D1 and D2 went to The Used Motors Company. Mr Bobby Li (PW15), car salesman, sold a second-hand Mercedes Benz LL 3588 to D1. The purchase price was $270,000. It was paid partly by trade-in of another Mercedes Benz. D1 paid the balance of $170,000, by his credit card to the extent of $40,000, and the balance of $130,000 in cash. D1 told Mr Bobby Li that LL 3588 was to be registered in the name of D2, and contract and receipt in the name of D2 were issued. Mr Li said that D1 and D2 had been to his showroom to view another Mercedes Benz sometime in June 2004, but they did not choose one.
344. Becky Wong said D1 and D2 were lovers and D1 once gave D2 a grey Mercedes Benz sports car KP 8968 as a present. Miss Celia Chiu, D2's employee whose mobile phone was used to send the lawyer Chung SMS, gave evidence to similar effect.
345. On 23 July 2004, D2's name appeared on the registration form of the New World Renaissance Hotel as arriving on 23 July 2004, and the Actual Arrival Guest List showed D2's name against Room 1518. The lift CCTV footage of the hotel shows that D1 and D2 went up to 15/F at 6.32 pm, and they came down to the lobby at 11.35 pm on the same night. The Express Check Out card showed D1's name against Room 1518.
346. On 24 July 2004, Frankie Chung was arrested by the ICAC. He was cautioned for the first charge. Frankie Chung's wife was also arrested as she also worked for C K Mok & Company. Frankie Chung refused to answer any question while interviewed during detention. At 7 pm on 26 July, Frankie Chung was granted bail. The matter of non-prejudicial statement was raised. On 30 July, the matter of non-prejudicial statement was raised again. Frankie Chung knew that if the non-prejudicial statement was accepted, he would not be prosecuted. That was why he agreed to give a non-prejudicial statement. He started to give lots of details to the ICAC. On 11 August, Frankie Chung gave his first non-prejudicial statement. However, Frankie Chung was told by Mr Bishop of the ICAC that his statement was not satisfactory as it was not comprehensive enough. Frankie Chung stood firm and said he had told everything. Then the ICAC indicated that they would accept the first non-prejudicial statement. On 5 January 2005, Frankie Chung gave a second non-prejudicial statement. In September 2005, Frankie Chung was released from bail.
347. On 24 July 2004, Magdalene Chow was arrested by the ICAC for breach of the Witness Protection Ordinance in respect of the SCMP article on 16 July 2004. She said at the time of the arrest she was instructed by the company to give a witness statement. She was accompanied by a solicitor acting for the SCMP. An immunity was offered to her, Sarah Bradford as well as all the editorial staff of the SCMP before she actually gave the witness statement.
348. Mr Ryan said an immunity from prosecution was only granted after the most careful consideration. The immunity in respect of Magdalene Chow and the staff of the SCMP was decided by the Director of Public Prosecutions himself.
349. On 28 July 2004, D3 was interviewed at a radio phone-in programme "Hong Kong 2000". The interviewer asked him whether he had anything to do with the writ of habeas corpus case. D3 said he had nothing to do with it at all because he was not the one representing the writ of habeas corpus case. They were 2 different cases. In fact, he took up D1's case at a much later stage. Actually he was not the lawyer representing him when the ICAC arrested him. It was only at a later stage he came to retain him. The interviewer asked whether the habeas corpus was handled by his solicitors' firm. D3 said absolutely not. There was nothing to do with him at all. He had nothing to do with the solicitors' firm engaged to handle the case.
Aaron Nattrass
350. Mr Aaron Nattrass (PW7) was the Chief Managing Executive of Massie & Clement in July 2004. He gave evidence of conversations made to him respectively by D3 and D4. Such evidence is admissible only against D3 and D4 respectively.
351. Aaron Nattrass had been passing information to Mr Jerry Osborne of the ICAC for some years on matters which he thought worth reporting as a citizen.
352. Aaron Nattrass said he was a good friend of D4. At about 7 to 8 am on 24 July 2004, the day D4 was arrested by the ICAC, D4's girlfriend Sophia called him to D4's flat. He witnessed the search of D4's home, and later D4's chambers.
353. Aaron Nattrass said he was not concerned with the application for habeas corpus, and he did not attend any of the hearings between 14 and 16 July 2004. Around 20 August, Mr Nattrass had a meeting with Mr Massie and Mr Clement. He had seen the Affirmation of D2, and he was informed of the Affirmation of Becky Wong. He was concerned with the reputation of the firm. As a result, he took an interest in this matter. On 23 August, he caused a company search to be done on Ever Brilliant, and the result showed that Becky Wong was not a shareholder of Ever Brilliant. He was aware of a letter dated 26 July 2004 sent by the ICAC to Mr Massie making enquiries of breaches of the Witness Protection Ordinance and perverting the course of justice. Towards the end of August, Aaron Nattrass had several meetings and phone calls with Mr Osborne about this case, and he was furnishing documents to the ICAC, including 1 of the 2 cheques Ever Brilliant paid to Massie & Clement.
354. On Monday, 30 August 2004, Aaron Nattrass was invited to a buffet dinner at D4's flat by Sophia. D3 arrived some time later. He said he had met D3 many times before and knew D3 reasonably well. At one stage D3 and he sat at the table where there were no one close to them. D3 asked him about the ICAC letter dated 26 July and D3 seemed to be acquainted with the questions in the letter. D3 said Mr Massie was weak, and he should not have co-operated with the ICAC and surrendered the files in the habeas corpus application, but instead should have claimed legal professional privilege and have the files sealed up pending an application to the court. Nattrass said that Mr Massie was not happy, and in particular, while D2 said in her Affirmation that Becky Wong had been her business partner and friend, the company search did not reflect that. D3 said that was a bit of a problem, as Becky Wong was only recently brought into the company, and the annual return done in July 2003 would not show that. They were discussing the discrepancies in D2's Affirmation, and D3 said "she had forgotten her lines." Nattrass said he was concerned about the position of Massie & Clement, and D3 told him to tell Mr Massie not to answer the questions of the ICAC and to tell the ICAC to Fxxk off. D3 said he must make sure Mr Massie understood that if D3 went down, Mr Massie could be going down too.
355. Nattrass said to D3 that there was a conspiracy by D3 and D1 in bringing D2 to Massie & Clement to make an Affirmation for the habeas corpus to say things that were either untrue or exaggerated. D3 said he had only brought the case to Massie & Clement, and Massie & Clement was the firm that did the case. Nattrass said the fact that D1 and D3 had brought D2 to the office seemed to support the impression he got. D3 was very annoyed.
356. Nattrass said D3 asked him to tell Mr Massie not to tell the ICAC that when D3 brought him the case, D3 mentioned that Becky Wong was in protective custody. Mr Nattrass said there was no use because Mr Massie had made file note indicating protective custody. Then D3 said Mr Massie should not have made such file note.
357. Nattrass asked D3 that if D1 were concerned about Becky Wong, why did he not be the applicant for habeas corpus . D3 said that D1 was arrested by the ICAC, and he was the solicitor for D1, and therefore it would not have been appropriate.
358. Nattrass asked D3 why in the Affirmation of D2 there was no mention that D2 was the girlfriend of D1, the person who was arrested in the ICAC investigation. D3 asked Nattrass to tell Mr Massie that he did not have to worry because D2 had been paid and well taken care of. The next time she reported for bail, she had been asked to shut up and say nothing. D3 said D1 and D2 had been offered immunities to say things against the lawyers but they had declined the offer. Nattrass asked him who the lawyers were and D3 said D4, Mr Massie, Mr Clement and himself.
359. Throughout the conversation, D3 mentioned a few times that Nattrass had to make sure Mr Massie do not co-operate with the ICAC and not answer any question. Nattrass thought that D3 was asking him to interfere with a witness of the case not to assist with the ICAC enquiry, and he would not do so. However, he did not tell D3 so at the time.
360. On the next day, Nattrass went to see Mr Osborne but could not find him. Nattrass sent an SMS message to Mr Osborne. Mr Osborne replied that he was overseas, and would ask someone to contact Nattrass. Later Mr Bishop of the ICAC met Nattrass on 7 September. On 22 September, Nattrass gave a statement to the ICAC.
361. On 30 September 2004, Aaron Nattrass attended another dinner at D4's place. At one stage, Nattrass was alone with D4. D4 raised the subject of this case and asked whether Mr Massie had replied to the ICAC letter of 26 August. D4 said he was unlucky to meet D1 and D3 at the FCC on the evening D3 brought the case to Massie & Clement. Then D2 arrived later and she reported to D1 and D3 what happened at Massie & Clement when D1 and D3 had left, and D3 was furious when he learnt that Mr Clement was merely writing to the ICAC asking for access to Becky Wong. D3 then approached D4 and demanded D4 to ensure Massie & Clement took more forceful action that Becky Wong had to be seen urgently before it was too late, otherwise D3 would have Massie & Clement sacked, and get a firm to do it the way D3 would like to have it done.
Submission of no case
362. Counsel for each of the defendants submitted no case to answer in respect of each of the charges. Counsel for each defendant also submitted that the acts and declarations under the co-conspirators' rule are not admissible against the other named parties of the conspiracy.
363. Except on the 2nd charge, I have ruled a case to answer on each charge by the respective defendants. On the 2nd charge, I have ruled that D2 has to answer to the charge of attempted perjury.
364. The principles governing the issue of whether or not there is a case to answer are set out in R v. Galbraith (1981) 73 Cr App R 124, 127 per Lord Lane CJ:
"(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty - the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."
1st Charge
365. Under the 1st charge, the prosecution alleged that the existence of a conspiracy to pervert the course of public justice in the application to the ICAC for access, complaint to the police of false imprisonment, and application to High Court for habeas corpus when Becky Wong did not seek for help and the real purpose was to find out whether she had given damaging information to the ICAC; and if so, what; and to stop her from giving further assistance, thereby obstructing and hindering the investigation and possible proceedings. Although the knowledge or belief that Becky Wong was not unlawfully detained and did not seek release from the custody of the ICAC was pleaded only in the particulars of the overt acts, I hold that such knowledge and belief is an essential element of the 1st charge.
366. The offence to pervert the course of public justice is committed where a person or persons: (a) acts or embarks a course of conduct; (b) which has a tendency to; (c) is intended to pervert; and (d) the course of public justice.
367. The course of public justice extends beyond ongoing judicial proceedings, and extends to the course of criminal investigation with a view to imminent, probable or possible judicial proceedings.
368. The statutory offence of conspiracy under section 159A of the Crimes Ordinance is as follows:
"(1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either-
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question."
369. A conspiracy is an agreement between two or more persons to perform an unlawful act or a lawful act unlawfully. The actus reus of the offence is the agreement itself. Assuming the necessary mens rea , once that agreement has been reached the offence is complete. (R v. Aspinall (1876) 2 QB 48, 58-59). It is not necessary for there to be any act in furtherance of the agreement, although in this matter it is the prosecution's case that much actually was done in pursuance of the two conspiracies and that those acts demonstrate the existence of the two conspiracies.
370. Mens rea is an essential element in conspiracy. There must be an intention to be a party to an agreement to do an unlawful act. In R v Anderson [1986] AC 27, Lord Bridge said, at 39E:
"But, beyond the mere fact of agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required."
371. It is the agreement to commit the offence and the intention to take part that forms the offence. It will continue so long as there are two or more parties to it intending to carry out the agreement (DPP v Doot [1973] AC 807). It is not necessary that all the parties to a conspiracy reach agreement at one and the same time: it is possible for persons to join a conspiracy at various stages and times provided that that conspiracy is a single, ongoing one (R v. Sheik Abdul Rahman Bux and Others [1989] 1 HKLR 1, 7).
372. By their very nature, conspiracies are often difficult to prove. A court is usually invited to infer the existence of a conspiracy from the individual acts of the alleged co-conspirators "done in pursuance of an apparent criminal purpose in common between them", in that the conduct would not have occurred, had there not been an agreement (see R v Brisac and anor. (1803) 4 East 164, 171; Churchill v Walton [1967] 1 All ER 497, 500).
373. Once there is prima facie evidence that a particular accused was a party to a conspiracy, the acts and declarations of a party to that conspiracy are admissible both against the person who made it as well as against the other members of the conspiracy if those acts and declarations are made in furtherance of that conspiracy and provided that such acts or declarations are relevant to the proceedings (see R v. Au Shui-yuen Alick [1993] 2 HKC 219). Overt acts, which are proved against some accused, may be looked at as against all of them, to show the nature and objects of the conspiracy (R v. Stapylton, Esdaile and Brown [1857] 8 Cox 69).
374. In the Alick Au case, the co-conspirators' rule is stated as follows:
"(1) Before the evidence of the words and acts of the accused's co-conspirators, done in furtherance of the conspiracy, is admissible against the accused, a foundation for its reception must be laid. This takes the form of independent evidence which links the accused to the conspiracy charged. A prima facie case would be sufficient. This evidence must be independent in the sense that it is evidence other than that admissible only pursuant to the co-conspirators' rule. This evidence must be admissible against the accused. The independent evidence in the present case, for the purpose of the co-conspirators' rule, might come from Reid.
The order of proof is flexible and the evidence of the co-conspirators' doing and saying may be against the accused in advance of independent evidence establishing the conspiracy and his implication in it.
Where a person joins a conspiracy after its inception and/or leaves it prior to its termination, his or her alleged co-conspirators' words etc would be admissible against him or her pursuant to the co-conspirators' rule even though these words were said or done prior to his or her joining the conspiracy or subsequent to his or her withdrawal from it."
375. I remind myself of the necessity to distinguish between admissibility of different aspects of the evidence in respect of the different conspiracies.
376. It is necessary for me to consider the evidence touching upon each defendant on each charge separately and to arrive at a distinct decision in respect of each. I have had to give careful consideration as to whether there was one, overall, ongoing conspiracy with different conspirators joining in at different stages or whether there were, indeed, a number of separate conspiracies which effectively flowed from a consecutive series of events.
Court adjourns - 1.03 pm
Court resumes - 2.32 pm
377. Mr Lok, SC, for D1, referred to R v. Rogerson (1992) 60 A Crim R 429, per Brennan & Toohey JJ at 435-6, on the point that what makes a conspiracy to pervert the course of justice unlawful is the unlawfulness of its intended object or the unlawfulness of the means to affect its object.
"Of course, where there is an agreement to do an act that has a manifest tendency to pervert the course of justice, proof of an agreement to do the act may suffice to prove the intent thereby to pervert the course of justice. But if the act to be done is of such a nature that its tendency to pervert the course of justice is not manifest, proof of an agreement that the acts be done, does not, without more, amount to proof of a conspiracy to pervert the course of justice: in such a case, there has to be proof of an intent to do an act that will have the effect of perverting the course of justice. The state of an alleged conspirator's knowledge of the nature of the relevant act is of critical importance... To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to do an act which the conspirator either knew will have a manifest tendency to pervert the course of justice or which the conspirators intended to have such an effect."
378. Mr Lok submitted that habeas corpus was an ancient remedy to protect the liberty of the subject, and there is nothing wrong to gain access to a potential witness in order to ascertain whether her stay with the ICAC was voluntary or what a potential witness might have said to the authority. There was never any threat or persuasion or communication to Becky Wong in any form in an attempt to influence her to stop co-operating with the ICAC. The opportunity to do so after lawful access is requested would render the tendency to pervert the course of justice too remote.
379. Mr Lok submitted that although Becky Wong said D1 once said he could easily get a foreign passport, and she feared he could send her away from Hong Kong, this was not a threat by D1 to influence Becky Wong, and the fear was self-induced. This I agree.
380. Although D1 had been arrested, he is presumed innocent until proven guilty, and no adverse inference of intent to pervert the course of justice is to be drawn. There was no subterfuge on the part of D1 as Frankie Chung was known to the ICAC to have represented him before.
381. It was also submitted that the evidence that D1's name appeared on the caller display was not admissible to prove that D1 tried to contact Becky Wong as there is no computer certificate covering this call. This evidence only goes to explain why Becky Wong surrendered her own SIM card to the ICAC as she felt embarrassed. Be that as it may, Frankie Chung did say D1 told him that Becky Wong could not be reached.
382. It was submitted that D1 only gave instruction to Frankie Chung to gain access to Becky Wong, but there was no evidence that D1 told Frankie Chung or any of the lawyers involved in the case as to how they should handle the matter. There was no evidence that D1 participated in the acts of the named co-conspirators or anything linking him with the 4 particulars in the charge. There was no evidence that D1 agreed with any of the defendants to influence Becky Wong; or he instructed, coached or indeed knew D2 or Frankie Chung lied in their affirmations, if any, or that he could verify the statements in their affirmations. Frankie Chung was the author of his lie about acting for Becky Wong before, and there was no evidence that D1 knew about it. There was no communication by D1 with the press. The only attempt to contact by Carmen Hsu had failed.
383. It was submitted that D2 could well have been mistaken as to the circumstances of Becky Wong as Becky Wong admitted the possibility of giving misleading signals to D2 in her own secretive phone calls. Frankie Chung also said he thought Becky Wong wanted to get away from the evil clutches of the ICAC, which he recorded in his diary as easier said than done. There was no evidence to rebut that D1 was not so mistaken, and hence there was no proof of the requisite mens rea on the part of D1. The only inference is D1 was a caring and concerned boss, having given 30% share in the beauty salon to Becky Wong. The gift of the car by D1 to D2 was consistent with D1 supporting D2 financially in the past. And so was payment of the legal fess.
384. Mr Lok also submitted that Frankie Chung's evidence that D1 told him that D3 was going to hold a pressconference for D1 was internally inconsistent as he agreed in cross-examination that he had mistaken it with the conference D3 held after his own arrest.
385. Mr Lok submitted that out-of-court statement by a co-defendant which is favourable to a defendant is admissible for the latter (see R v. Myers [1998] AC 124). Mr Lok submitted that the evidence of the encounter between D4 and the ICAC clearly shows mistrust between them and that he had gone on frolics on his own. Further, D3 expressed strong views to Mrs Reimer Lau about the excesses of the ICAC which entailed all the machines were to be turned on. These should be considered in D1's favour.
386. Mr Lok submitted that there is no prima facie case that D1 was part of any conspiracy, and the acts and declarations of other named co-conspirators are not admissible against D1.
387. Mr Adams for D2 emphasized the close relationship between Becky Wong and D2, both in business and sisterly friendship, and submitted that D2 had every motive and right to be concerned with Becky Wong's well being, which was the basis of her seeking access to Becky Wong in order to advise her of her rights. Close family and friends often send lawyers to see detained persons without being specifically asked for. Mr Adams submitted that the right to confidential legal advice is a right guaranteed under the Basic Law, and detainees of the ICAC have such a right. It is ironical that Becky Wong's position was worse off than a detainee. Mr Adams also emphasized the misleading signals in Becky Wong's calls. The SMS's to Becky Wong show that D2 believed that Becky Wong was held against her will, and were all consistent with giving her comfort and encouragement.
388. Mr Adams submitted that there was no interference with Becky Wong as a witness. D2 never asked Becky Wong not to co-operate with the ICAC when Becky Wong told her what was said to the ICAC. And there was no evidence that D2 told D1 or anyone about what she heard.
389. Mr Adams pointed out that Mr Wilson accepted that there was nothing wrong with the letter initially drafted by Massie & Clement mentioning that Becky Wong was in "protective custody" and the ICAC was asked to tell Becky Wong to contact Mr Clement if she wished to take legal advice. If so, why would the matter be different if stronger measures be taken on the same basis? A lawyer seeking access to a person detained by the ICAC can never be inherently likely to interfere with the course of justice as more than a simple approach is needed to interfere with a witness. It also had to be borne in mind that D4 was never told by the ICAC that Becky Wong had become a protected witness. Mr Adams attributed the escalation of the events to the breakdown in communication and mistrust between the ICAC and the lawyers.
390. It was pointed out that D1 paid for D2's beauty salon, and had the habit of providing for D2 financially. D2 had always driven the traded-in Mercedes registered in the name of D1, and Becky Wong and Celia Chiu all thought the old car belonged to D2. Registration is not in itself title of ownership, whereas possession is as good as ownership. D1 and D2 had started looking for a car before the incident, and there is nothing untoward in changing the car.
391. Mr Harris for D3 also submitted on the lack of direct evidence against D3, from the taking of instructions, drafting of affirmations and the hearing in court. D3 was engaged as an advocate in the District Court from 13 to 15 July 2004. D3 had no contact with Frankie Chung whatsoever. D3's contact with D2 was also brief and sparse.
392. The evidence of Mrs Reimer Lau that D3 was to "turn on the machines" was on the basis that D3 wanted to expose the excesses of the ICAC. D3's past experience with the Angela Gong case supported his suspicion of the ICAC.
393. Mr Harris submitted that Aaron Nattrass lied or was at least wrong or incredible in many aspects of his evidence. Nattrass has been labelled as barmy, a Walter Mitty, a resident in cloud cuckoo land, no doubt in an attempt to slight his evidence as beneath contempt.
394. As to the 3rd charge, Mr Harris submitted on the lack of evidence of any agreement or common purpose between D3 and D4 to disclose Becky Wong's identity in the WPP.
395. Mr McNamara for D4 submitted that D4 was merely acting on instructions and he had nothing to doubt them. Instructions came from two sources confirming each other: D2 and Frankie Chung. It was submitted that the prosecution had produced no evidence to prove that D4 knew what he was told in instructions were not true. All he asked from the court was to ask Becky Wong whether she was willing to stay with the ICAC. Both Yam J and Hartmann J thought that the ICAC was lacking in evidence on this point.
396. Mr McNamara submitted that there was no evidence as to the contents of the telephone contacts between D3 and D4, and suspicion piled upon suspicion was still suspicion and not proof. Also, the frequency of calls must be seen in the light of the close professional and personal relationship between D3 and D4, to which Mr Ryan and Aaron Nattrass had spoken.
397. As to the 3rd, 4th and 5th charges, Mr McNamara submitted that as they are attempting the impossible, D4's belief that Becky Wong was in the WPP was essential. All along, D4 said in court that he did not believe that Becky Wong was with the ICAC voluntarily, and it is for the prosecution to rebut that and to prove intention to disclose.
398. Further, D4 never told Magdalene Chow that Becky Wong was in the WPP, and she merely put two and two together.
399. The prosecution sought to prove the conspiracy in the 1st charge by way of inference.
400. The incident started with the arrest of D1 and Becky Wong on 9 July. When D1 was released on bail, he told Frankie Chung that he could not get in touch with Becky Wong. At some stage, Frankie Chung asked another lawyer to look for Becky Wong but there was no contact.
401. At about lunchtime of 11 July and the morning of 12 July, Becky Wong called D2. Becky Wong told D2 that she was with "them", but she said she was safe and sound on both occasions.
402. There were some queries about the translation of the word "sound". I indicated to counsel that the translated answer "OK" in the original Chinese was "無", literally meaning "nothing", and "safe and sound" was "平安無事", literally meaning "safe and no incident" or nothing to worry about.
403. Becky Wong tipped D2 off that D1's mobile phone numbers beginning with "6" and "9" might have been tapped by the ICAC, D1 should not use them. She asked D2 to say sorry to D1 as she had told the ICAC about market manipulation and illegal money involving D1. Granted that Becky Wong was speaking in a secretive manner and had told D2 she was hiding in the toilet or hanging up hurriedly, it was hardly surprising as she was warning and tipping D2 off. More importantly, D2 never told Becky Wong she would try to save her or to get a lawyer for her on the phone, such as she was to say later in the SMS's (there being no real dispute that D2 sent the SMS's). Assuming Becky Wong to be credible, the inference is D2 knew that Becky Wong was safe and sound and did not seek help for her release, and the subsequent SMS's about saving Becky Wong were merely attempts to woo Becky Wong on side.
404. In the opening speech, Mr Wilson QC suggested that there was an element of subterfuge in D2 using the taxi driver's phone to call Becky Wong, and in using her staff Celia Chiu's mobile phone to send the lawyer Chung SMS. This suggestion was withdrawn as D2 later reverted to the use of her own phone.
405. The association between D1 and D2 is established by evidence independently admissible against both D1 and D2. D1 and D2 were boy and girlfriends, and D1 was most at stake in what Becky Wong might have told the ICAC and remaining on the side with the ICAC. True that D1 is innocent until proven guilty, but his arrest is a relevant fact of the case. D1 had paid for the legal fees for the legal visits and application for habeas corpus; he accompanied D2 to Massie & Clement, was present at the meeting with D2, D3 and D4 at the FCC, and then they rode with D4 to ICAC for the first legal visit. When D2 was sending the SMS to call lawyer Chung, she was on the phone with D1. The inference is that D2 was acting on D1's behalf in asking Becky Wong to call a legal representative who had been acting for D1. D1 told Frankie Chung that C K Mok & Company was to act for William Lau and Becky Wong. Furthermore, within a few days after the hearing, D2 received a gift of a Mercedes Benz from D1. Whatever background as to the traded-in car, the fact remains that there was a gift of the car registered in the name of D2. Further, it is relevant that the gift or at any rate token of affection came at a time when Hartmann J had ruled that Becky Wong in fact did not want to get out of ICAC, and $350,000 had been spent on wasted legal fees.
406. As early as the afternoon of 12 July, Frankie Chung had told D1 that there was a possibility that Becky Wong might be becoming a witness for the ICAC. Although D1 was to say (to Frankie Chung as well as to D4) that no way would Becky Wong be co-operating with the ICAC, D1 did say to Frankie Chung that Becky Wong was a fragile person and she might make admissions against herself of things she did not do. There may be an issue as to the precise wording used by D1 giving the meaning of fragile, but there is enough to be left to the jury function.
407. D1 rushed to see Frankie Chung after he was told of the midnight call from Becky Wong on 13/14 July. Frankie Chung told D1 that he managed to locate Becky Wong, and he had told Becky Wong he would go to see her at the ICAC provided that she would call him in the morning. D1 gave the name card of D4 to Frankie Chung before they parted and told Frankie Chung to accompany D4 to the ICAC if Becky Wong rang back in the morning. On the next morning, D1 told Frankie Chung to accompany D4 to make the second legal visit at the ICAC. Frankie Chung made excuses and suggested D3 to do it, but D1 said, "You do it. I will be assured if you do it", and "As I ask you to do it, you just do it." The fact remains that the instruction for the second legal visit was given and carried out without Becky Wong ever calling Frankie Chung again asking for legal representation. Assuming Frankie Chung to be credible, this is an inference of knowledge of the sham against D1 and D3.
408. Frankie Chung said D1 told him that D3 was going to hold a press conference for him to vent his grievance against the ICAC. Under cross-examination Frankie Chung said he was mistaken, but in re-examination, he reiterated that D1 had told him that D3 would hold a press conference for him and D1 was happy. Further, Frankie Chung explained the reason why he suggested D3 to accompany D4 for the second legal visit was because D3 was going to hold a press conference for D1. It is a question for the jury function.
409. Apart from the meeting at the FCC, D1 and D2 met D3 at his office in the afternoon of 15 July when D4 was appearing before Hartmann J.
410. Assuming the prosecution evidence to be credible, even without the acts and declarations under the co-conspirators' rule, it supports the inference that D1 knew the alleged illegal detention and call for help was a sham. And the evidence independently admissible against D1 and D2 supports the inference of a conspiracy between them.
411. Both Becky Wong and Frankie Chung said that she never asked for help from him. Although Frankie Chung said he was mistaken that Becky Wong needed legal representation and he never conspired with any of the defendants, and he lied to D4 to bolster the case for representation and access, it remained that he accompanied D4 on the second visit without Becky Wong ever calling him again and he did so because D1 told him to just do it. He admittedly told a lie that he had acted for Becky Wong before. The inference is that Frankie Chung also knew it was a sham and he joined the same conspiracy with D1.
412. As to the case against D3, he started to act for D1 on 13 July on the file record. D1 and D3 met at D3's office in the afternoon of 13 July, where D2 was called to join in before the party went to Massie & Clement. From experience, D3 must have realized the possibility of Becky Wong being persuaded to co-operate with the ICAC. Mr Clement said D3 introduced D2 to Massie & Clement because of possible conflict of interests. But if D3 really believed in the instructions that Becky Wong was illegally detained by the ICAC and she wanted to get out, with all the proper disclosures, there could hardly be any conflict of interests. It is noted that D3 spoke freely to Mrs Reimer Lau that he acted for the director of Semtech and he planned the habeas corpus to save the secretary from the abuse by the ICAC. Of course, the truth of D3's statement to Mrs Reimer Lau on his belief of abuse by the ICAC remains to be assessed qua jury function. But it shows that D3 saw nothing wrong in so telling Mrs Reimer Lau.
413. The Angela Gong case was drawn as a parallel to the Becky Wong case. Angela Gong's movement was not restricted by the ICAC, save that she was advised to seek independent legal advice and to avoid D3, the lawyer whom the ICAC believed had connections with the person against whom Angela Gong was invited to give a non-prejudicial statement. The two cases are different.
414. Granted that D3 was in the District Court as an advocate for the better part of the day from 13 to 15 July, and could perhaps have other professional engagements on those and other days as one would expect of a busy solicitor, he nevertheless managed to engage in heavy telephone traffic with D4 during the period of the habeas corpus hearings. Granted there was no evidence of the contents of the conversation, it still shows that D3 did have the opportunity of keeping in contact with D4 whatever his other engagements. And he did have a meeting with D1 and D2 in the afternoon of 15 July.
415. It is the prosecution case that D3, solicitor for D1, was calling the shot behind the scene. After D2 had given instructions to Mr Clement and a letter requesting the ICAC to give access was drafted, there came the meeting at the FCC between D1, D2, D3 and D4 which resulted in D4 calling Mr Clement that he had instructions from D2 to make a legal visit to the ICAC. Although Raymond Lam did not identify D3 at the FCC, the other trainee solicitor Tsui Pui-hung heard D3 say he was going to the FCC. The prosecution sought to rely on evidence admissible under the co-conspirators' rule that the telephone conversation between D4 and Mr Clement that D3 was agitated and wanted stronger action to be taken by Massie & Clement. The inference is that D3 stayed behind the scene and the meeting resulted in D4 going for the first legal visit being decided before Mr Clement was asked to send Raymond Lam along.
416. Other evidence admissible against D3 include the contact between Carmen Hsu when D4 had just been to the ICAC for legal visit, and D4's complaint letter to the ICAC was later found in D3's office.
417. Further, evidence admissible against D3 only is the conversation with Aaron Nattrass on 30 August 2004 that D2 had forgotten her lines, and had been paid and well taken care of. I find that the credibility of Aaron Nattrass is a matter for the jury function. Whatever dissatisfaction and criticism Mr Clement may now have against Aaron Nattrass, the fact remains that he was employed as the managing clerk of Massie & Clement for almost 10 years. Nattrass had nothing to gain but everything to lose in giving evidence in this case.
418. The evidence taken together supports an inference of guilt against D3, fit to be left to the jury function.
419. As to the case against D4, he first appeared in the scene at the FCC on 13 July. He called Mr Clement and said that D3 was a bit agitated and Massie & Clement should be hammering on the door of the ICAC. D4 asked Mr Clement to arrange for Raymond Lam to accompany him for the first legal visit. D4 must have known that D3 had a keen interest on the matter, as D3 thought the proposed course of writing a letter was insufficient, and stronger action should be taken.
420. D4 had a conversation with D1 on the way to the ICAC. He also talked to D1 during lunchtime on 15 July (Call 261), effectively telling D1 that D2 won and the other side was appealing. In his diary (which is evidence against himself only), D4 wrote "Derek Wong re: release of Becky Wong" in respect of the legal visit on 13 July. The prosecution alleged that this shows D4 was in fact acting for D1.
421. At the ICAC, D4 mentioned about safe house and he wrote the complaint letter using the term "protective custody", and even outside the context of WPP and the prohibition on the disclosure of identity, he must have realized Becky Wong was a potential ICAC witness. He so mentioned to Mr Ryan, leading Mr Ryan to believe that he knew what the situation was.
422. D4 rang the SCMP and faxed the complaint letter to Carmen Hsu on the night of 13 July and the disclosure of Becky Wong being in the WPP to Magdalene Chow show the active steps taken by D4 to involve the press. He wrote in his letter to the Secretary of Justice that he played the ICAC at their own game by involving the press. Whether it was for exposing the abuse of the ICAC, it did put pressure on the ICAC.
423. Mr Wilson submitted that D4 did not show any surprise when Frankie Chung rang to ask him to go back to the ICAC for the second legal visit on the instruction of C K Mok & Company. After the visit, he then rang Mr Clement, telling him that there would be a habeas corpus application with Massie & Clement back as the solicitor.
424. Frankie Chung said he lied to D4 that he had acted for Becky Wong before. Mr Wilson submitted that it could not be said that the habeas corpus application was the only consequence of the call by Becky Wong to Frankie Chung. D4 made the first visit to the ICAC on 13 July before Frankie Chung came onto the scene, and in the complaint letter on 13 July, D4 had already stated that he was now instructed to apply for habeas corpus.
425. D4 wrote in the complaint letter to the Head of Operations that he wished the matter to be resolved sensibly and amicably. But without further ado, he rushed to make a complaint to the police against the ICAC for false imprisonment. It was said that it was a most unusual act at the instance of a barrister.
426. Mr Ryan said D4 rang him to see if he could make the ICAC see sense and help resolve the matter. However, when D4 was told that Mr Ryan was perfectly happy with the way the ICAC was behaving, D4 did not seem to take any heed of it. When Mr Ryan solemnly disclosed to Yam J that Becky Wong had signed the MOU and was in the WPP (albeit not legally so), and said that there was a statement in Chinese from Becky Wong that she was with the ICAC voluntarily, D4 simply did not believe it, alleging his ingrained suspicion of the ICAC in dealing with witnesses. It is one thing to say that an arrested person is being persuaded to turn prosecution, it is a most serious allegation to say that a law enforcing agency is detaining someone illegally against her will. D4 needed not even pause for one moment to clarify the situation with his instructing solicitor and client. He charged on to challenge Becky Wong's statement was written on her behest to sign. It is to be contrasted with his ready acceptance of his instructions from D2 and Frankie Chung.
427. Also admissible against D4 only is the evidence of the conversation with Aaron Nattrass on 30 September, where he said Becky Wong had to be seen urgently, before it was too late, otherwise D3 would have Massie & Clement sacked, and get a firm to do it the way D3 would like to have it done. Mr Wilson submitted that the inference is that D4 knew on 13 July before he went for the first legal visit that D3, who was the solicitor for D1, was involved in an attempt to get to a potential witness in the case against D1.
428. Mr Wilson submitted that what is more important is that, when D4 was asked by the courts whom the lay client actually was, D4 went through all the links in the chain and yet he still kept silent about the involvement of D1. It shows that D4 was conscious of the fact that by revealing the involvement of D1 and D3, that D1 was effectively his client, the courts would certainly have treated him with great circumspect and raised queries on the bona fides of the application.
429. Mr Wilson submitted that if D4 had misled the court and concealed where his instructions really came from there must be a reason. The inference is that he knew or believed that the true position was Becky Wong was in the process of giving useful information against D1 to the ICAC, and she should be reached and influenced before it was too late. Assuming the evidence to be credible, the inference is D4 knew the real purpose of the application was to stop Becky Wong from co-operating with the ICAC urgently before it was too late. This inference is fit to be left to the jury function.
430. As to whether the seeking of access and the application for habeas corpus have the tendency to pervert the course of justice, the right to seek legal access and to apply for a habeas corpus cannot admit an abuse of the process in making the application where the ground that the person was illegally detained and she wanted to seek release was a sham. D1 told Frankie Chung that Becky Wong was a fragile person or terms to that effect. And D2 must have known Becky Wong's disposition by virtue of the sisterly friendship. Becky Wong said she did cry and consider leaving the WPP because of all the trouble when she was told that someone had applied for habeas corpus on her behalf. Assuming the witness to be credible, the inference is that D1 and D2 intended to influence Becky Wong not to co-operate with the ICAC, and the acts did have a natural tendency to influence her.
431. The process of any person turning prosecution witness is a sanctioned feature of our criminal justice system. The delicacy and sensitivity of such persons must be alive to any criminal lawyer. To seek access and to apply for habeas corpus when knowing the instructions were a sham must also mean intention to influence the potential witness in such process.
432. In the premises, I ruled a case to answer for each of the defendants on the 1st charge. I also ruled that the acts and declarations of the named conspirators are admissible under the co-conspirators' rule.
Charge 2
433. The offence of perjury is set out in Part V, section 31 of the Crimes Ordinance:
"If any person lawfully sworn as a witness or as an interpreter, either generally or in a particular judicial proceeding, wilfully makes a statement in any judicial proceeding which is material in that proceeding and which he knows to be false or does not believe to be true, he shall be guilty of perjury and shall be liable on conviction upon indictment to imprisonment for 7 years and to a fine."
434. Section 30 of the Crimes Ordinance provides that:
"The question whether a statement on which any offence against this part is assigned was material is a question of law to be determined by the court."
435. And section 43 of the Crimes Ordinance provides that:
"A person shall not be liable to be convicted of any offence against this part, or of any offence declared by any other enactment to be perjury or subornation of perjury or to be punishable as perjury or subornation of perjury, solely upon the evidence of one witness as to the falsity of any statement alleged to be false."
436. The essential elements of the offence of perjury are:
(1) the witness was lawfully sworn;
(2) in a judicial proceedings;
(3) the witness made the statement wilfully, that is to say, deliberately and not inadvertently or by mistake;
(4) the statement was false;
(5) the witness knew it was false or did not believe it to be true;
(6) the statement was, viewed objectively, material in the judicial proceeding;
which requirement is, by virtue of section 30 of the Crimes Ordinance, a matter to be decided by the trial judge. (see for reference: Neil Frederick Millward (1985) 20 Cr App R 280)
437. Mr Wilson conceded on particular (a) of the 2nd Charge relating to the 30% ownership of Ever Brilliant by Becky Wong because D2 might have so regarded.
438. As to particular (b), Mr Adams submitted that although Becky Wong denied she was trembling, she spoke in a faint voice and was nervous, and D2 might have perceived her to be trembling through the phone. On the snatching of the phone, Raymond Lam said that D2 did not actually use "snatched", but said the phone was taken away in a hasty manner. Be that as it may, Becky Wong never said her SIM card was confiscated, nor she did not know where she was, and these statements were not true. These matters are also material to the application for habeas corpus.
439. As to particular (c), Mr Adams submitted that Becky Wong never expressly told D2 her sister worked in Hong Kong, and the advertising campaign never went ahead and all the information relating to the sister working for an airlines lied in telephone conversations only. On the other hand, Becky Wong never said she had no close family members in Hong Kong, and this statement was not true.
440. Mr Adams submitted that the statement that Becky Wong had no close family member in Hong Kong was not material. With respect, it is material as it seeks to strengthen the locus of D2 in making the application as a third party. It begs the question as to why it was included if it were not intended to portray the helplessness of Becky Wong.
441. The particulars of the 2nd charge further stated the omission that Becky Wong had said to D2 she was safe and sound. Mr Adams submitted that the offence of perjury is concerned with false statements, not omissions.
442. I note that D2 stated in her Affirmation that she believed Becky Wong had been held in excess of 48 hours and thus any restraint without her consent is unlawful, and she worried about the wellbeing of Becky Wong. The omission that Becky Wong had said that she was safe and sound on both the telephone conversations was material in rendering the message in the Affirmation that D2 believed that Becky Wong was being held without consent false.
443. Mr Adams submitted that there was no corroboration to the evidence of Becky Wong, and in particular, there is no corroboration as to the phone conversation between Becky Wong and D2, and the state of mind of D2.
444. Direction for corroboration under section 43 of the Crimes Ordinance should follow the general approach for suspect witness. In R v. Ho Ling-hung & ors . CACC 563 of 1982, Silke JA (as he then was) at page 9 of the judgment cited Baskerville [1916] 2 K.B. 658, 667 per Lord Reading CJ on corroboration in a material particular tending to show that the accused committed the crime charged as apposite perjury:
"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute."
445. Silke JA did not accept the proposition that corroboration needs entail every single detail of the evidence of the witness.
446. The evidence of Becky Wong that she had close family members in Hong Kong is corroborated by the evidence of her father, mother and elder sister and their immigration movement records.
447. Mr Adams submitted that any mistake must be wilful and not honest mistake or mere inadvertence. The inference of D2's knowledge and state of mind under the 1st charge also provides the relevant proof of wilfulness in the 2nd charge.
448. Mr Adams further submitted that D2 was not lawfully sworn in that:
(1) D2 did not make an oral affirmation;
(2) Raymond Lam did not interpret the affirmation in the sense of the affirming words;
(3) Raymond Lam was not sworn as the interpreter.
449. Raymond Lam said D2 did not understand English. He translated the content of the Affirmation but he did not translate the affirming words, but he did confirm with D2 that she understood she had to tell the truth under swear. Raymond Lam said D2 showed her identity card and signed. The solicitor Ms Chan said she confirmed the identity of the person before her, and that she understood the content, and witnessed her signature. It was not oral declaration or affirmation.
450. Section 5 of Oaths and Declarations Ordinance, Cap.11 provides that:
"(1) An oath may be administered and taken in the following form and manner- The person taking the oath shall hold the New Testament, or, in the case of a Jew, the Old Testament, in his uplifted hand, and shall say or repeat after the officer administering the oath the words 'I swear by Almighty God that', followed by the words of the oath prescribed by law.
(2) The officer shall, unless the person about to take the oath objects thereto, or is physically incapable of so taking the oath, administer the oath in the form and manner aforesaid."
451. Section 7(2) of the Oaths and Declarations Ordinance provides that:
"A person who is neither a Christian nor a Jew shall be permitted to make his affirmation instead of taking an oath for any purpose for which an oath is required by law."
452. And section 8 of the Oaths and Declarations Ordinance provides that:
"If a person taking an oath or making an affirmation is unfamiliar with the official language in which the oath or affirmation is taken or made, the oath or affirmation shall be interpreted to him by a sworn interpreter."
453. Mr Adams submitted the persuasive authority of R v. Robert Eli Low Mag. App. No. 1180 of 1966 per Sears J that a statutory declaration should be in the same category as an oath, i.e., it has to be declared in an oral manner.
454. Mr Beresford submitted that Sears J was not referred to section 45 of the Crimes Ordinance, which provides that:
"For the purposes of this Part, the forms and ceremonies used in administering an oath are immaterial, if the court or person before whom the oath is taken has power to administer an oath for the purpose of verifying the statement in question and if the oath has been administered in a form and with ceremonies which the person taking the oath has accepted without objection, or has declared to be binding on him."
455. Mr Beresford submitted that the words in section 5 of the Oaths and Declarations Ordinance as to the manner of making the oath, are directive only (see R v. Chapman [1980] Crim LR 42, ruling on section 1, Oaths Act 1978, which is in pari materia ).
456. Mr Beresford also referred to R v. Kemble [1990] 1 WLR 1111 on whether a witness was lawfully sworn, where Lord Lane CJ said at 1114:
"We take the view that the question of whether the administration of an oath is lawful does not depend on what may be the considerable intricacies of the particular religion which is adhered to by the witness. It concerns two matters and two matters only in our judgment. First of all, is the oath which appears to the court to be binding on the conscience of the witness? And if so, secondly, and most importantly, is it an oath which the witness himself considers to be binding upon his conscience?"
457. Although Raymond Lam did not translate the affirming words to D2, he did confirm with D2 that she understood she had to tell the truth under swear. Effectively, he had translated the meaning of the oath to D2. The solicitor administering the affirmation signed on the Affirmation stating D2 was affirmed before her. D2 also signed on the Affirmation, indicating it to be binding on her. There is evidence that in every respect an oath or affirmation binding on the conscience of D2.
458. However, there remains the question of the oath of the interpreter.
459. Mr Beresford submitted that since D2 could send SMS in English, she was not unfamiliar with the English language. For the purpose of section 8 of the Oaths and Declarations Ordinance, unfamiliarity with English must relate to the making of the affirmation and the statement therein. Notwithstanding D2 might be able to send SMS in simple English, Raymond Lam said the affirmation was in a language she did not understand, and he interpreted the content to her, a fact which the prosecution is relying on. I hold that there is no prima facie case that D2 was familiar with English for the purpose of making the Affirmation.
460. I hold that the combined effect of sections 7 and 8 of the Oaths and Declarations Ordinance is that both the person making the affirmation and the interpreter are required to be sworn. The oath of the interpreter is a substantive requirement for validity. Section 45 of the Crimes Ordinance only deals with forms and ceremony, not with the requirement of the oath of the interpreter. Hence D2 was not lawfully affirmed.
461. Under section 159G of the Crimes Ordinance:
"(1) A person who, intending to commit an offence to which this section applies, does an act that is more than merely preparatory to the commission of the offence is guilty of attempting to commit the offence.
(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.
(3) Where a person is charged with an offence, he may be convicted of having attempted to commit that offence even though he was not charged with the attempt."
462. The relevant questions which arise for consideration are:
(1) Did the defendant intend to commit the offence which it is alleged she attempted to commit?
(2) Did she, in relation to that offence, do an act which was more than merely preparatory to the commission of the intended offence?
463. Whether the acts of the defendant were more than mere preparation is a question for the jury function.
464. I found that there is a prima facie case that D2 did intend to make an affirmation, and it contained statements which are material, wilfully false to her knowledge, not due to mere inadvertence or honest mistake, and there is corroboration by independent evidence in a material aspect. D2 did try to swear an affirmation, save that it was not lawfully sworn for reasons beyond her control. Hence, I held there was a case to answer on attempted perjury as included in the original charge. The offence of attempt will also deal with the points on the omission of the translation of the affirming words and oral affirmation, if necessary.
465. Hence, I ruled that there was enough evidence to be left to the jury function on attempt under the 2nd charge.
4th and 5th Charges
466. I shall deal with the 4th and 5th Charges before dealing with the 3rd charge.
467. Section 17(1)(a) of the Witness Protection Ordinance provides that:
"(1) A person shall not, without lawful authority or reasonable excuse, disclose information about the identity or location of a person who is or has been a participant or who has been considered for inclusion in the witness protection programme."
468. The 4th and 5th charges are framed as attempting the impossible, because as at the date of the offences, i.e, 15 July 2004, the Approving Authority had not signed the MOU, and Becky Wong was not legally a participant in the WPP. Nevertheless, the prosecution alleged that having been told that Becky Wong was a participant in the WPP, D4 believed so and he disclosed her identity as being a participant in the WPP to Magdalene Chow.
469. The relevant questions which arise for consideration are:
(1) Did D4 believe that Becky Wong was in the WPP?
(2) With that belief, did he disclose the identity of Becky Wong as a participant in the WPP?
(3) Did he intend to commit the offence which it is alleged he attempted to commit?
470. The evidence of Magdalene Chow was that she had never heard of the WPP before. After speaking to D4, the only reasonable and logical inference she could draw was that it was believed that Becky Wong was in the WPP. The evidence of Magdalene Chow is fit to be left to the jury function.
471. As to the point that D4 said in court that he did not believe in Becky Wong being in the WPP voluntarily, the inference of D4's state of mind under the 1st charge is relevant also for the 4th and 5th charges.
472. Hence, I found there was a case to answer by D4 on the 4th and 5th charges.
3rd Charge
473. The 3rd charge is a conspiracy between D3 and D4 between 15 to 17 July 2004 to disclose the identity of Becky Wong as a participant in the WPP. In so far as the conspiracy was formed before Becky Wong was legally in the WPP, the impossibility of the commission of the offence is no defence to a charge of conspiracy.
474. It must be borne in mind that the conspiracy under the 3rd charge is a distinct and separate conspiracy to the alleged conspiracy involving the press to bring pressure on the ICAC to give access and/or release of Becky Wong.
475. The facts relied on by the prosecution are: the triangle of phone calls between D3, D4 and Carmen Hsu starting from 13 July; D4 faxing the complaint letter to Carmen Hsu on 13 July; D1 telling Frankie Chung on 14 July that D3 was going to hold a press conference for him; the publication in the Sing Tao Daily on 14 July the article "Barrister Alleges ICAC of unlawful contacts"; and D4's disclosure to Magdalene Chow on 15 July. The prosecution also relied on the "switch on all machines" evidence against D3, and the "playing the ICAC on their own game" evidence against D4.
476. Some of these events took place before the period of the conspiracy from 15 to 17 July 2004. However, it is important to note that on 16 July, D3 called Magdalene Chow asking her whether the SCMP reported anything on the habeas corpus application on the previous day. D3 did have an opportunity to speak to D4 on the phone at 1.01 pm on 15 July (Call 262). Then on 16 July, the SCMP article "A legal source said Ms Wong was in ICAC witness protection programme" was published. Why would D3 ask about the report of the proceedings in camera on 15 July? The inference is that he was looking for the disclosure of the very matter of sensitivity which led the court to go into camera, i.e., Becky Wong was in the WPP.
477. In the premises, I found a case to answer on the 3rd charge by D3 and D4.
Court adjourns - 4.50 pm
13 June 2006
14 June 2006
Court resumes - 10.04 am
D1's evidence
478. D1 elected not to give evidence. It is admitted during the prosecution case that D1 is of clear record and it is also admitted that around lunchtime on 14 July 2004, Carmen Hsu tried, without success, to contact D1.
D2's evidence
479. D2 elected not to give evidence. It is admitted during the prosecution case that D2 is of clear record.
D3's evidence
480. D3 elected not to give evidence. It is admitted during the prosecution case that D3 is of clear record. It is also admitted that between 13 and 15 July 2004, D3 was personally conducting a criminal case in the District Court. On 13 July, the trial was in session from 9.35 am to 10.57 am, and from 11.30 am to 12.55 pm. On 14 July, the trial was in session from 9.35 am to 10.58 am, from 11.33 am to 12.30 pm, from 12.38 pm to 1 pm, and 2.32 pm to 4.21 pm. On 15 July, the trial was in session from 9.34 am to 11.05 am, from 11.39 am to 1 pm, and 2.33 pm to 4.01 pm.
D4's evidence
481. D4 elected to give evidence. He has been a barrister for 34 years. He came to Hong Kong in 1980, was Crown Counsel for 10 years and then was in private practice specializing in criminal matters since 1990. He is of clear record. He is the second Vice-President of the FCC, responsible for its administration. He would go to FCC daily to sign cheques and to socialize.
482. D4 knew D3 since the late 1980s and are close friends. Half of D4's briefs came from D3's firm.
483. D4 is a close friend of Mr Massie, and sometime flatmate for 10 years. He also did a great deal of work for Massie & Clement. D4 knew Mr Clement, but not as close as Mr Massie.
484. D4 said he happened to meet D3 by chance at the FCC in the evening of 13 July. D3 introduced D1 to him as the Chairman of the Semtech group who had been arrested on 9 July. He knew D1 was D3's client. D2 was not there yet. Prior to that, D4 did not know D1 or the Semtech case, nor was he aware of any dealings between D1, D2 and D3. They chatted for 2 or 3 minutes and D4 went away.
485. About half an hour later, D4 came back and D3 approached him and brought him to see D2. He was not told that D2 was the girlfriend of D1. D3 spoke to D2 in Chinese and to him in English, while translating intermittently to D2. D2 looked like a fish out of water, as if she had no idea what was going on. D3 said D2 had a business partner who was also D1's secretary and she was also arrested by the ICAC, and D2 feared that she was being held against her will. She had been with the ICAC for 4 days. He was never told that Becky Wong asked D2 to say sorry to the boss. D3 had introduced D2 to Massie & Clement to get legal access to the secretary. D3 said D2 told him what Mr Clement had proposed to do was just to write a letter. D3 was clearly not happy, saying Massie & Clement was not pro-active enough. He took D3 to mean that Massie & Clement should be making a legal visit. He sensed D3 was unhappy with Massie & Clement from body language and demeanour.
486. D4 felt that the client might have Massie & Clement sacked. D4 knew Mr Massie was busy packing, and Mr Clement was basically a civil lawyer. Because of his relationship with them, D4 thought of ringing Mr Clement to give him a Dutch uncle's talk. He told D3 to leave it to him to ring Mr Clement. Had it been another unknown firm, he would have told D3 to get different solicitors for D2.
487. D4 rang Mr Clement's mobile. He told Mr Clement that it was not for him to tell him how to do his job. He was at the FCC with D3 and D3 was a bit agitated about a lady he introduced to him as a client that evening. Apparently her business partner was being held by the ICAC against her will and all he proposed was to write a letter. D4 said "Lammy" (meaning D3) thinks Mr Clement should be hammering at the ICAC's door. D4 said D3 only said Massie & Clement was not pro-active enough, and he translated it into his own colloquial language. Mr Clement said he was on the MTR home and was not prepared to turn back to do a legal visit. D4 might have offered to go to the ICAC on his firm's behalf, and Mr Clement said he would arrange for his trainee Raymond Lam to accompany D4. D4 said he had general instructions from Mr Clement to get access to Becky Wong, and if access were denied, to apply for habeas corpus, and to do everything necessary along the way.
488. D4 said he was instructed by D2 through D3 that Becky Wong was with the ICAC involuntarily. He had 2 purposes in mind: (1) to establish the secretary's status; (2) to establish her choice. He had absolutely no intention to influence her stay at the ICAC.
489. After the phone call, D4 told D3 that Mr Clement had briefed him to go to the ICAC for legal visit with Raymond Lam. D3 in turn explained to D2. They looked pleased.
490. D2 said he was minded to take a taxi with Raymond Lam to the ICAC. D1 offered him a lift and it was not polite to refuse. During the journey, he told D1 that his secretary had been with the ICAC for 4 days. The ICAC had to either charge her or release her after 48 hours. He asked D1 whether there was possibility that she was co-operating with the ICAC. D1 said no way as there was nothing for her to be co-operating over. Moreover, she had been with him for 3 years, and he treated her well, giving her 30% shares in D2's beauty salon.
491. D4 said he was treated badly by Daphne Lim, unlike the usual courteous treatment before. D4 said he did not accept Daphne Lim as the case officer because she looked like a troglodyte in repeating Becky Wong was not there and she lacked the ability to explain to him the situation. He did not accept that Becky Wong was not there because his instructions were she was with the ICAC somewhere, hence, he said to Daphne Lim that the ICAC had got Becky Wong in a safe house somewhere. D4 said he only had come across keeping witnesses, potential witnesses and co-operating persons in a safe house administratively, but had never heard of the WPP. He knew from experience that ICAC was capable of putting pressure on arrested persons effectively coercing them to be staying with them, and he thought Becky Wong was in this situation. The ICAC would have to justify that she was staying voluntarily. That was reflected in his complaint letter.
492. D4 used the term "Stockholm syndrome" before Hartmann J on 16 July, meaning the captive being softened and identifying with the ideas and ideals of the captors. D4 said D3 and himself were solicitor and counsel for Angela Gong on assignment by the Director of Legal Aid.
493. D4 said Johnny Chau whom he knew to be a friendly chap confirmed Daphne Lim was the case officer. He wrote out the complaint letter to the Head of Operations to protest about his treatment. He said Daphne Lim's refusal to give access without any reasonable explanation was the reason for his complaint.
494. D4 referred to the Commission's Standing Order on Principles and Procedures for Professing a Request for Legal Representation (Chapter 19, Section 09):
"3. Whenever a legal advisor arrives at the Operations Department for the purpose of representing a detainee, either at the request of the detainee or claiming to have been instructed by a third party to represent the detainee, the Duty Officer/Detention Centre or Guarding Officer must be informed. He will establish the legal adviser's identity, firm/chambers, the reason for the visit, and record the details in an Occurrence Book. Likewise, all requests for legal advice by a detainee will be immediately recorded on the Arrest/Detentions Sheet.
5. Following a request for access being received via the Guarding Officer, the case officer or the CI responsible will satisfy himself that the visiting legal adviser is a genuine legal practitioner acting on the instructions of the detainee, or a person known to the detainee. The following classes of person are entitled to visit a detainee, or a person present in ICAC premises and under investigation:
(b) barristers, accompanied by solicitors or properly authorised and approved solicitor's clerk."
495. D4 said he was never told by the ICAC that Becky Wong was not a detainee.
496. In the complaint letter, D4 put "detained" in inverted commas, trying to give the impression that Becky Wong was effectively detained by the ICAC. Although he was not told in instructions that Becky Wong was with the ICAC supposedly on a voluntary basis, he deduced that himself. He also put "protective custody" in inverted commas in a mocking and cynical way as he did not believe Becky Wong was in protective custody. As at 13 July, he had never read the Witness Protection Ordinance, nor was aware of the WPP as a matter of statute.
497. He wrote that he had instructions from D2 to make a formal complaint to the police. In fact there was no such specific instruction and it was his idea to do so, as he thought his general instructions to do whatever necessary to gain access would cover that.
498. At the end of the letter, D4 wrote: "I would appreciate your assistance in solving this problem amicably and sensibly." D4 said he gave the complaint letter to Johnny Chau, and Johnny Chau gave him one photocopy of the letter. He hoped the letter would reach someone senior, who would telephone the Head of Operations to allow access to Becky Wong. That was the whole purpose of writing the letter. He waited for 10 to 15 minutes, but there was no response and he left.
499. After he left the ICAC, D4 spoke to D3 on the phone. He must have been keeping D3 informed. D4 said he saw nothing wrong in doing so as D3 referred D2 to Massie & Clement, and he thought D1 also had a legitimate interest in the welfare of Becky Wong.
500. After leaving the ICAC, D4 went to FCC to make 2 copies of the complaint letter before going to the Central Police Station. While at the police station, Sergeant Fong rang the ICAC. Then Sergeant Fong gave him a number to ring a Mr Yung. D4 said he thought someone senior had seen his complaint letter and it bore fruit. He rang the ICAC asking for Mr Yung, but only managed to speak to a lady.
501. At the police station, D4 rang an investigative journalist Peter Michaels at the SCMP. He only managed to leave a voice message. D4 said he did that spontaneously without discussing with D3, because of the predicament he found himself in at the ICAC.
502. Also at the police station, Carmen Hsu rang him. Carmen Hsu knew he had an unsuccessful visit at the ICAC and asked for details. Carmen Hsu did not tell him how she got to know about his treatment at the ICAC. He was mildly surprised, but it was no concern to him as he got enquiries from the press routinely and he did not ask how she knew about it. He did not even think at the time whether D3 might have told her, but he knew D3 and Carmen Hsu were quite close. She did not tell him she had just spoken to D3, and he never knew about that. The call lasted 6½ minutes and he must have told Carmen Hsu the details.
503. D4 said there was no conspiracy to involve the press, and he just staggered from event to event. He never rang Carmen Hsu. He was kept out of the loop in the so-called triangle of phone calls with D3 and Carmen Hsu.
504. During the night of 13 July, D3 had rung him. He must have told him that there was no success at the police station. D4 said D3 was a telephone terrorist, always talking on the phone.
505. In the morning on 14 July, D4 said Frankie Chung rang him to do a legal visit for Becky Wong on the instruction of C K Mok & Company. Frankie Chung did not tell him the details on the phone, but he worked out it was the same lady he was trying to get access to the previous night. He did not think beyond that at the time, and it did not strike him as odd that another firm instructed him for legal visit for the same person. He just thought it was a coincidence.
506. During the wait at the ICAC reception, Frankie Chung gave him the brief, and he saw on the brief the interviewee was Becky Wong. Then he realized that there were two firms acting for two clients. He told Frankie Chung about his visit to the ICAC the previous night. Frankie Chung told him that Becky Wong rang him in the early hours in the morning telling him that she was held by the ICAC against her will. That reinforced what D2 had told him through D3. Frankie Chung never mentioned his connection with D1 and he never knew it during all the court appearances.
507. D4 said Patrick Ho told him he had not got an appointment. Becky Wong was not there, and he could do whatever he liked. He tried to read his complaint letter to Patrick Ho, but Patrick Ho said he was not listening and made a gesture of covering his ears. D4 said this treatment was more nasty than the night before.
508. After the rebuff by Patrick Ho, Frankie Chung told him that he knew Becky Wong and had acted for her in a civil matter before. Frankie Chung said it in a convincing way.
509. D4 rang Mr Ryan, telling him he had just been refused access. He hoped Mr Ryan could talk to the ICAC to make them see sense. Mr Ryan said Rebecca Li was coming over and he would ring back.
510. D4 then rang Mr Clement, telling him about the second unsuccessful attempt on the instruction of C K Mok & Company. He said he had tried everything, and the only avenue was habeas corpus . He said Frankie Chung would come over to do an affirmation for the habeas corpus application. He gave Frankie Chung his copy of the complaint letter for enclosure as an exhibit.
511. D4 said D3 was in the District Court that day and D3 did not know that he went to the ICAC again.
512. Then D4 went to Lai Chi Kok Reception Centre in respect of another case. During the wait, he wrote in his diary the entry of the legal visit on 13 July. He mainly wanted to note down the time spent as a basis of rendering a fee note. He wrote down Derek Wong because he forgot the name of D2. Derek Wong spoke excellent English and impressed him as educated. On the night before, he copied D2's name from the instruction form to Massie & Clement onto the complaint letter. Since he had given the only copy of the complaint letter to Frankie Chung he could not remember D2's name. It was just an innocent reminder of what case he had done. He put down the name of D1 even though he had nothing to do with Becky Wong.
513. At about 3.30 pm, D4 called Mr Ryan and asked about access to Becky Wong. Mr Ryan was very cautious in the reply. He said he had taken instruction from the ICAC, and all he could say was he was perfectly happy with the way ICAC was dealing with the matter, and could not be of assistance. D4 said he had no alternative but to apply for habeas corpus.
514. The record shows that at 4.14 pm (Call 225), Carmen Hsu rang D4 and there was a call for 96 seconds. D4 said obviously it took place but nothing jumped out at him about the call.
515. At 4.32 pm (Call 228), D3 rang D4 and the call lasted 69 seconds. D4 said during the period of the court hearings, D3 made calls to him to ask him of any development. All the calls from D3 were "any development" calls. It was put to him that he knew D3 was heavily concerned with the access to Becky Wong and he answered that he thought D3 was being nosy and D1 was concerned with Becky Wong. No one had told him anything to cause him any concern in talking to D3 or the reporters.
516. When D4 and Mr Clement were on the way to the High Court, they met Carmen Hsu, and 2 reporters from the Apple Daily and the Sun. D4 said he was making a habeas corpus application to the judge. The reporters followed him to the court, but there was no pre-arrangement with them.
517. After the ex parte hearing before Yam J on 14 July, while D4 was at the DOJ for service of the documents on Mr Ryan, D3 rang him to ask him whether there were any developments. D4 said during the evening of 14 July, he had not spoken to any reporter.
518. D4 said he first heard that Becky Wong was in the WPP when Mr Ryan told Yam J in the morning of 15 July. It was also the first time he heard of the Witness Protection Ordinance. He started reading it while in court, then he sat down to read the whole Ordinance. D4 said he was telling the truth when he told the courts that he did not accept Becky Wong was voluntarily in the WPP. In the 3 hearings, there was no evidence from Mr Ryan to change his view on voluntariness. All he asked for from each level of court was for Becky Wong to be seen by a judge to ascertain her voluntariness. He said by asking a judge and not counsel interviewing Becky Wong, he wanted to preserve the integrity of the enquiry. He was not trying to influence Becky Wong. D4 said he was not in the habit of lying to the court.
519. At 11.39 am on 15 July, Yam J rose. The record shows that at 11.47 am (Call 258), Carmen Hsu rang D4 and the call lasted 60 seconds. D4 said Carmen Hsu was trying to find out the hearing before Yam J. D4 told Carmen Hsu there was a gag order and he could not tell her anything, exactly in the same way as he had told D1.
520. At 12.57 pm, D1 rang D4 (Call 261). D4 said he was surprised that D1 rang. During 11 to 17 July, he only met D1 once, i.e., at the FCC on 13 July, and only had this telephone conversation with him. D4 said he answered Derek right away as he only knew one Derek ever, that was D1. D1 asked about the case and he said there was a gag order and he could not tell him anything. But he told D1 he would try to explain to D3 without breaching the gag order.
521. D4 said at all material times he held the belief that his mobile phone had long been monitored by the ICAC. Hence, he would not say anything sensitive on the telephone. If there were need to talk on sensitive matters, he would do it face to face.
522. D4 agreed that the order of Yam J prohibited the communication of the order itself, and he understood that when giving the undertaking. It was put to him that by telling they were appealing, it was effectively communicating that a writ of habeas corpus was ordered. D4 said that granting of a writ of habeas corpus should be made in open court, and Yam J's order was ultra vires, but he did not disobey it because he thought it was ultra vires. D4 said he did not communicate the order of Yam J. As he understood it, the gag order was clearly aiming at protecting the WPP. And the order was not in respect of any appeal since there was no appeal yet.
523. D4 did not accept that by telling D1 he walked away smiling and the other side not smiling, he was trying to say he won. He said if he wanted to say he won, he would say so. But he agreed it would be a breach of Yam J's order by saying he won. He said he was deliberately vague as it could mean the other side saw sense and produced Becky Wong. He was simply telling D1 there was nothing to worry about. D4 said he was both preserving the judge's order and reassuring D3's client.
524. D4 was asked how could he explain to D3 what the situation was without breaching the undertaking to the court. He said he would simply tell D3 that there was a gag order and he could not tell.
525. At 13.01 pm, D3 called D4 for 86 seconds (Call 262). D4 said he could not remember the conversation, but he supposed it was not about the gag order and he might have asked D3 to meet him at the FCC. He knew D3 was appearing as an advocate in the District Court that day, but D3 would almost invariably go to the FCC at lunchtime. D3 would ask him for friendly advice on law, procedure or evidence.
526. When D3 met him at the FCC after the Grissini lunch, he did exactly the same thing with D1. He told D3 there was a gag order and he could not tell him anything. D3 just said OK and no problem. He probably had told D3 that there was an appeal at 2.30 pm. That would explain why D3 called him again in the afternoon to ask about the result and he told D3 that the gag order was still in place.
527. Between 5.34 pm and 5.56 pm, Hartmann J took a break. While outside the court, D4 was with Mr Clement and/or his pupil and/or his 2 summer students. He was with someone the whole time. The journalists swamped him. He never gave away any information about the WPP.
528. At one stage, Carmen Hsu said to him, "Eric Yang (or Yeung Yan-tak) is here, witness protection scheme", nodding sideways to indicate someone somewhere away. D4 said he did not know Eric Yang from a bar of soap at that time. D4 did not respond and walked away.
529. Then the reporters, including Magdalene Chow, chatted in Cantonese. Then she came over by herself and asked D4: "What is the witness protection scheme?" D4 said: "There is an Ordinance that explains it. Cap. 564. I suggest that you go downstairs to the library to read it." D4 said he gave Magdalene a careful warning. Neither Magdalene Chow nor any journalist asked him anything in terms of "protective custody". D4 said the Criminal Procedure Ordinance had nothing to do with the WPP and he did not tell Magdalene Chow to look it up. Further, he never smoked a cigarette and never had a private conversation with Magdalene Chow. He never said anything to Magdalene Chow indicating Becky Wong was in the WPP.
530. D4 said he knew Magdalene Chow was a reporter with the SCMP, but she was not a reporter whom he used to feed information. They did not have each other's telephone numbers.
531. The hearing before Hartmann J on 15 July finished at 6.10 pm. D4 said he came out and ignored all press questions. He did not give any information to the press about the WPP.
532. At 6.26 pm, D3 called D4 and the call lasted 138 seconds (Call 279). He would have told D3 that there was a gag order and he could not tell him anything. D3 did not put pressure on him to tell and they changed the subject. He never told D3 the ICAC alleged that Becky Wong was in WPP.
533. D4 said he did not know D3 called Carmen Hsu 5 times for considerable duration in the afternoon of 15 July, and there was considerable telephone traffic between them up to 16 July. Neither D3 nor Carmen Hsu told him that they had any conversation. He said everyone was ringing him, and it was not him who rang them, and there was no conspiracy.
534. D4 said he knew Aaron Nattrass back in 1994 or 1995 while appearing for him pro bono in some pre-trial matters. He said Nattrass should feel grateful for him if he were a normal person. Later, Nattrass worked as a law clerk for Massie & Clement and had instructed him. They were friends but not close friends. Nattrass was a good friend of D4's female partner Sophia and was a regular guest at his home. When D4 was arrested on 24 July, Sophia called Nattrass to look after his interests.
535. At the 30 August dinner party, D4 said he was with David Armstrong, Chief Editor of the SCMP in the balcony the whole time. He did not hear any conversation between Nattrass and D3.
536. Prior to the second dinner party on 30 September, D4 had had numerous conversations with Nattrass about this matter. Nattrass had shown interest in D3's involvement. He did not know that Nattrass was an ICAC spy at the time. Nattrass's account on 30 September was a fusion of conversations and embellishment. It was Nattrass who raised the matter of the ICAC questionnaire with him, and not him with Nattrass.
537. D4 remembered telling Nattrass on many occasions that he was unlucky to be at the FCC on the evening of 13 July, and if he were not there, he would not be in the present trouble. He never said D3 was "furious" because D3 was not. What he might have said was that D3 was upset, not happy or agitated and D3 was not pleased with the way Massie & Clement proposed to act, and sending a letter was not pro-active enough, and a legal visit should be arranged. He never said to Nattrass to "get down to see Becky Wong urgently" or "before it was too late" and it was pure embellishment by Nattrass. D4 only said he rang Mr Clement because he did not want to see Massie & Clement sacked, but not D3 would have Massie & Clement sacked. Nattrass insinuated that D3 demanded Massie & Clement to take stronger action.
538. D4 agreed that it was possible that if D2 thought Massie & Clement's actions were not enough and sought D3's opinion, D3 said Massie & Clement was not pro-active enough, D2 would sack Massie & Clement. He agreed that when he was speaking to Nattrass, it could have meant D3 would have got Massie & Clement sacked in a roundabout way.
539. D4 said on 21 July, he sent a copy of his letter dated 19 July 2004 to the Secretary for Justice together with his complaint letter to the ICAC, the Central Police Station report card and Frankie Chung's Affirmation to D3 under his compliment slip. It was the first time he sent them to D3. He said it was in anticipation of his arrest in connection with the report by the press of a matter they should know not to report and D3 could act as his solicitor.
540. Under cross-examination, D4 agreed that he did not for one moment think that Becky Wong was refused bail after 48 hours while there was no charge. In his experience, the ICAC would make use of the junior staff against the Chairman, and it was more likely that the secretary be given bail than the Chairman. He did think there was a possibility that Becky Wong was co-operating with the ICAC. But his instructions were that D2 had communicated with Becky Wong, and Becky Wong said she was held captive by the ICAC and wanted to get out. He checked the facts by asking D1 whether Becky Wong could be co-operating with the ICAC en route to the ICAC and D1 said no way. He thought D1 was just a boss showing concern for his staff. D4 said he was at the end of the line, relying on what others had told him. If there were lies told, he would be the victim. However, there was no warning signal, and he saw nothing wrong in D3 referring D2 to Massie & Clement out of an abundance of caution, and having made the referral, D3 felt some sort of responsibility towards D2 and acting as her informal legal advisor. There was also no warning signal that Becky Wong could possibly be witness against D1. He saw D1 and D2 were sitting and walking together, but he never addressed his mind to whether they were in some kind of relationship.
541. D4 disagreed that by making a legal visit there and then as opposed to writing a letter, he knew D3 treated it as a matter of urgency. D4 explained if the person were to co-operate with the authority, he or she would have decided or manifested it within the first 48 hours of arrest.
542. It was put to D4 that he was trying to mislead this court when he said he indicated to every court in the habeas corpus proceedings that all he wanted was to have Becky Wong interviewed by the judge but not counsel as to her voluntariness to stay with the ICAC. However, it was put to D4 that in the afternoon on 16 July, he told Hartmann J that last night, Mr Ryan indicated to him that he would require the applicant's witnesses to be cross-examined on their affidavits, and he had indicated to Mr Ryan that he would require Becky Wong for the purpose of cross-examination. D4 said he only said he wanted to cross-examine Becky Wong because the circumstances had changed in that Mr Ryan wanted his deponents for cross-examination. It was simply tit for tat.
543. Mr McCoy SC submitted before Hartmann J that the ICAC Commissioner had made a nil return and Becky Wong had made an Affirmation. There was no need to go behind the documents to have live evidence and the court should discharge the writ. He then said he wanted to have Becky Wong present for cross-examination. D4 said the point he made was that Becky Wong was still in ICAC "custody" and the Affirmation was made by the ICAC on her behest and the question remained whether she was a free agent. Later, he reverted to his original course that it was only necessary for Becky Wong to be produced and the court could ask her 4 or 5 neutral questions and for her to tell the court in the clearest terms so that there was no ambiguity that she was perfectly happy to be where she was and there was no need for him to cross-examine her.
544. D4 said if only Mr Ryan had told him on 14 July that Becky Wong was in the WPP or he could not say too much but she was co-operating, he would have consulted the solicitors and did not believe they would have marched to Yam J. However, it was put to D4 that when Mr Ryan disclosed to Yam J that Becky Wong was in the WPP, far from backing off, he told Yam J and the subsequent courts that he did not believe it. He agreed that he never asked for any adjournment to seek further instructions when D2 was not in court, nor asked Yam J for leave under section 17 of the Witness Protection Ordinance to tell client in general terms that would affect the application. D4's explanation was that Mr Ryan had the opportunity to tell him before. But he was told that Becky Wong joined the WPP on 13 July, the very day he went to the ICAC, and he thought it was suspicious and too much a coincidence. D4 agreed that with hindsight, he should have asked for an adjournment to tell the client of the new development, but that was not the decision he made at the time, and he stood by it. D4 said that given the stage they have reached, given the reluctance of Mr Ryan towards the court, the coincidence of the dates, all these put together led Mr Clement and him decided to soldier on without discussing it. But there was no great plan to deceive anybody.
Evidence generally admissible after the defence case
545. D4 spoke on what happened at the FCC on 13 July and it became general evidence in the case. The prosecution did not need to rely on the co-conspirators' rule for the telephone conversation between D4 and Mr Clement on hammering on the ICAC door.
546. Mr Wilson pointed out that the conversation in Call 261 is generally available against the defendants, and counsel for the defendants did not submit otherwise. Further, the purpose why D3 went to the FCC after the Grissini lunch was to see D4.
Consideration
547. I remind myself that the prosecution bears the burden of proving the charges beyond all reasonable doubt so that I am sure that each of the defendants is guilty of the respective offence charged. I must consider the case for and against each defendant in respect of each charge separately. The defendants do not have to prove their innocence. For those defendants who have elected not to give evidence, no adverse inference is to be drawn against them. For the defendant who has elected to give evidence, he bears no burden of proving what he is saying is true. If what he is saying may be true, or at any rate casting a doubt on the prosecution case, he should be given the benefit of the doubt. Even if his evidence is disbelieved, it simply means that his explanation is rejected, and it does not mean he is guilty. I still have to consider whether the charges are proved beyond all reasonable doubt on the prosecution evidence and/or the other evidence accepted by me. If the prosecution evidence contains matters in favour of the defendants, it must be considered in their favour. I remind myself that the evidence before me are all the evidence, and I do not speculate as to what other evidence could have been, save that if the absence of any fact casts any doubt on the prosecution case, it must be resolved in favour of the defendants.
548. And for the defendant who has given evidence, he gives an account that is exculpatory of himself, and may be inculpatory of other defendants, such as D4 said he was merely acting on instructions of the client and he was the victim. If such evidence leaves a doubt in favour of D4, he must be acquitted, but such evidence cannot adversely affect any defendant against whom it is given unless I am satisfied beyond reasonable doubt that it is true. All this is simply a part of the law. If there is any reasonable doubt as to a defendant's guilt, then he must be acquitted.
549. In considering the evidence of a witness, I am entitled to accept part of it, and reject the other part. However, if I disbelieve part of the evidence of a witness, I must consider whether the rejection casts any doubt on the witness as a whole.
550. All the defendants are admitted to be of clear record. I also bear in mind their stations in society. These are matters I take into account in their favour. The fact that a defendant is of good character may mean that he is less likely than otherwise may be the case to commit the crime now. Further, for a defendant who has given evidence, and as with any man of good character, his good character supports his credibility. This is a matter I should take into account when deciding whether to believe his evidence.
551. I remind myself when I draw any inference adverse to a defendant, it must be the only reasonable inference to draw. However, an inference drawn in favour of a defendant needs only to be one which is possible.
552. I remind myself that I am not sitting as a disciplinary tribunal for the lawyers charged in this case, nor am I to review how the WPP should be administered by the ICAC. My task is to adjudicate on whether the respective charges have been proved against each defendant.
553. I shall bear in mind the submissions and consideration at half time without repeating them all, save that the standard required to prove guilt is beyond reasonable doubt, and the inference of guilt must be the only reasonable inference.
1st Charge
554. Before I can convict any of the defendants of the 1st charge, I must be sure that:
(1) there was in fact an agreement between two or more persons to commit the offence of perverting the course of public justice; and
(2) that the defendant whose case I am considering was a party to that agreement in the sense that:
(a) he agreed with one or more of the other persons referred to in the charge the crime should be committed; and
(b) at the time of agreeing to this, he intended that they should carry it out.
555. It was submitted that Becky Wong is not a credible witness, and without her evidence there is no proof that her stay with the ICAC was voluntary.
556. It was submitted that although Becky Wong is not an immune witness in this case, she was arrested and she had offered to become a prosecution witness in the Semtech case. It was in her interests to please the ICAC in order to avoid her own prosecution. She must be considered to have an axe to grind.
557. It was submitted that if Becky Wong were genuinely voluntarily with the ICAC, then why would she speak in a secretive manner, using a SIM card taken from Semtech without the knowledge of the ICAC, and hang up hurriedly? It shows she was in two minds. Or at least, it gave the misleading signals that she was illegally detained and wanted to be freed, and she herself admitted that was possible.
558. It was submitted that Becky Wong was not a forthright person. She put herself down as single while she was separated. At first, she denied that she was a 30% shareholder and director of Ever Brilliant, and only admitted signing the instrument of transfer after being confronted with the documents.
559. There are numerous inconsistencies between Becky Wong's evidence and her statement to the ICAC:
(1) In her statement, she gave the impression that she had one phone call with D2 late at night on 12 July, while in fact she had two phone calls on 11 and 12 July;
(2) She omitted to mention the Semtech SIM card in the statement;
(3) She stated that D2 asked her to call lawyer Chung on the phone while it was, in fact, a message in the SMS;
(4) She never mentioned about saying sorry to the boss, tipping D2 off with what she had told the ICAC, and warning D1 not to use his mobile phones starting with number "6" and "9" in her statement;
(5) She said in evidence that she did not want any legal advice, but she said she wanted to hear some legal advice in her statement.
560. Of course Becky Wong did not tell the ICAC she had warned and tipped D2 off. It is perfectly understandable in the circumstances. She had just given two non-prejudicial statements because she thought the ICAC had known about it, yet she felt sorry for her boss and wanted to warn him through his girlfriend. Becky Wong would be embarrassed in that she picked up the Semtech SIM card, as the suspected the ICAC SIM card was tapped, and having called a law clerk at the invitation of D2. Be that as it may, she did tell the ICAC about the Semtech SIM card, and surrendered it with her phone voluntarily. It is not the case that she hid it all along.
561. The fact remains that Becky Wong was not a 30% shareholder of Ever Brilliant formally because the transfer was not duly stamped and registered. She waited to have the transfer registered because Ever Brilliant was making a loss in the previous year. She was supposed to have a gift, not a 30% share of losses. As to her marital status, it is noted that she put down "single" rather than "never married".
562. I have absolutely no doubt that Becky Wong is a credible witness. I accept all her evidence, and in particular, I find that she stayed with the ICAC voluntarily, she told D2 that she was OK once and that she was safe and sound, meaning safe and all right, or nothing to worry about, on the telephone on 11 and 12 July. I find there is no inconsistency in Becky Wong's evidence with the official translation of "safe and sound". She never asked D2 or Frankie Chung to get her a lawyer or to get her out of the ICAC, or she did not know where she was. She never told D2 that her phone and SIM card was confiscated by the ICAC, or she was not allowed to speak on the phone, or she had no close family members in Hong Kong. She signed the MOU on 13 July.
563. It was submitted that Frankie Chung was not a credible witness:
(1) He taught Becky Wong to lie to the ICAC that she knew him from the past;
(2) He lied to D4 that he knew Becky Wong from the past;
(3) He committed perjury by affirming that Becky Wong was previously known to him and that she had contacted her a few weeks ago in relation to a non-criminal matter;
(4) He lied in his diary by recording that he could recall that D2 introduced Becky Wong to him to issue a demand letter;
(5) He lied that he gave instructions to Mr Clement in Chinese through the interpretation of Raymond Lam, obviously to minimize his responsibility in perjury, while both Mr Clement and Raymond Lam said he spoke English;
(6) He was verbose on irrelevant details and economical on relevant facts;
(7) He is an immune witness, after protracted negotiations and also with his innocent wife also arrested, and had the biggest motivation to lie when the case of perjury against him was open and shut;
(8) His judgmental attitude as expressed in his diary highlights the risk that he might confuse facts with feelings and emotions.
564. It was submitted that Frankie Chung was inconsistent on whether D1 told him that D3 was to hold a conference for D1 to vent grievance of D3. Under cross-examination, he agreed he might have mistaken it with the conference D3 was to hold after his own arrest. But under re-examination, he confirmed that D3 was to hold a conference for D1. He also said he warned D1 to be careful as the ICAC were narrow-minded, and he explained that he suggested D3 to accompany D4 for the second legal visit because he thought D3 was to hold a conference for D1. I find that D1 did say that D3 was to hold a press conference for him.
565. Frankie Chung said D1 told him that Becky Wong was a fragile person, and she might make admissions against herself of things she did not do. It was pointed out that there was no mention that Becky Wong was fragile in Frankie Chung's two non-prejudicial statements. Frankie Chung insisted on remembering the meaning was fragile, though the memory might be hazy on the precise term. I find that D1 did use the description giving the meaning that Becky Wong was fragile. And although D1 said that he was worried that Becky Wong might make admissions against herself, it shows that D1 knew that Becky Wong was not a tight-lipped person. In all the circumstances, the only reasonable inference is that he was worried that Becky Wong might say things damaging to him.
566. It was pointed out that Frankie Chung said that the only lie in his Affirmation was his previous representation for Becky Wong. In such circumstances, his statement that Becky Wong sounded frightened, her voice was unsteady, she was kept by the ICAC, she did not know where she was but wanted to see Frankie Chung were all then true. Hence, they would support D2's Affirmation. With respect, that is hardly the case.
567. Frankie Chung said in evidence that he asked Becky Wong whether she was there and Becky Wong answered no, in the negative, and the word "ICAC" was never mentioned in the conversation. So it is not true that Becky Wong told him that she was kept by the ICAC. He said in evidence that he asked Becky Wong to ring him in the morning if she wanted to see him, and Becky Wong never did so. He agreed that Becky Wong never asked him to see her and tried to explain that he was mistaken.
568. As already pointed out in the consideration for no case, Frankie Chung was instructed by D1 to accompany D4 on the second legal visit, and did so without Becky Wong ringing back in the morning or at all. He made excuses albeit not in terms of the lack of phone call from Becky Wong. He did it because D1 told him to just do it. How can he be mistaken and it not be a lie that Becky Wong wanted to see him?
569. I keep fully in mind the immunity and what kind of a character Frankie Chung really is. After careful consideration, I am sure as I find that he did tell D1 the possibility of Becky Wong turning ICAC, and D1 told him that Becky Wong was a fragile person and might make admissions against herself of things that she did not do, and he told D1 that he would go and see Becky Wong provided she rang back, and D1 asked him to accompany D4 on the second legal visit without Becky Wong ringing back, and D1 did say that D3 would hold a press conference for him. However, I reject his evidence that Becky Wong was lying in saying she was with the ICAC voluntarily, or he was mistaken that Becky Wong wanted to see him, because otherwise he would not have told D1 he would go to see her provided she rang back. While there were genuine expression of feelings in his diary about his aspiration to a law degree or as to his political persuasion, the entries about saving Becky Wong from the evil clutches of the ICAC was easier said than done, Becky Wong was a contemptible person, going on her words, and he was an idiot believing in a crazy person were all lies in the same vein as his entry of acting for Becky Wong before in debt collection, they are all self serving. I find that D1 told Frankie Chung to accompany D4 for the second legal visit when D1 knew Becky Wong did not ring back. I reject Frankie Chung's evidence that he never conspired with anyone in this case.
570. As to the point that Frankie Chung had told D4 that Becky Wong had spoken to him saying that she wanted to get away from the ICAC, and he had acted for Becky Wong before, as there is no evidence to the contrary I accept that Frankie Chung did so lie to D4.
571. It was submitted that Aaron Nattrass lied or was at least wrong or incredible in his evidence:
(1) He said he had a meeting with Mr Massie and Mr Clement on around 20 August 2004 to discuss about Becky Wong's 30% shareholding in Ever Brilliant. But Mr Massie had left Hong Kong on 14 July and was back only after Mr Clement had left Hong Kong. Hence, it was not possible that the three of them had a meeting together around 20 August;
(2) He said in evidence that he knew D3 reasonably well, but in his note for the ICAC, he wrote, "What was relationship with Lam - almost none, brief acquaintance." Hence, he was lying, and it was inherently improbable that D3 would have told him anything of a sensitive nature;
(3) He confronted D3 with the company search of Ever Brilliant on that Becky Wong and D2 being business partners, but Becky Wong admitted that D2 did regard her as a partner and he was proved to be wrong;
(4) He watched pornography, but tried to wriggle his way out by saying he was doing research, and pornography meant sex involving children, animals or distasteful exploitation of women, but not as between consenting adults;
(5) He boasted a distinguished police career in New Zealand, while in fact he was only a traffic officer;
(6) He claimed to be a professor of law of the University of Baguio;
(7) He was investigated into an immigration offence involving his foreign domestic helper, and he claimed to have co-operated fully with the authority while he exercised the right to remain silent;
(8) He had made a multiplicity of complaints and suits, even against the ICAC, and is in fact a vexatious litigant, and hence is unworthy of belief.
572. It was also submitted that D3 knew Mr Massie personally, and there was no need for D3 to tell Mr Massie indirectly through Nattrass not to co-operate with the ICAC. It is pointed out that Mr Massie gave a statement and was on the original witness list, and it was the prosecution's decision not to call him. While on this point, I remind myself that Mr Massie's note was not admitted as to the truth of its content, but only to explain why Mr Clement used the term "protective custody" in his draft letter.
573. Aaron Nattrass explained that he did not have any relationship with D3, but he knew D3 indirectly through D4. I accept that Nattrass knew D4 quite well as he was asked to look after D4's interests on D4's arrest and search. Hence, while Nattrass was only a brief acquaintance of D3, they had a common friend, D4, and were not strangers to each other.
574. Granted that Becky Wong said she had signed the instrument of transfer in Ever Brilliant, but the shares transfer was not duly registered. It is a fact that the company search did not reflect any shareholdings by Becky Wong. D3 said Becky Wong was only recently brought into the company and the annual return would not reflect that, and D2 had forgotten her lines. There is no inconsistency between D2 might have regarded Becky Wong as a business partner and the company search did not reflect that Becky Wong was a 30% shareholder. Seen in this light, it is not inherently improbable that D3 said D2 had forgotten her lines.
575. It is noted that the conversation started with D3 enquiring about the ICAC letter of enquiry to Massie & Clement, and D3's comment on Massie & Clement's failure to claim legal professional privilege. Then Nattrass confronted D3 with the company search, and he further referred to the fact that "protective custody" appeared on the Massie & Clement file seized. I remind myself that it is not permissible to treat Nattrass's evidence as self-corroboration. However, the conversation must be seen in the circumstances and context as it was given. Seen in this light, there is nothing inherently improbable about D3 saying to Nattrass the things now given in evidence by Nattrass.
576. Nattrass did make a statement to the Immigration Department explaining the offence he was suspected, and then when he was questioned further, he exercised his right to remain silent. It was not mere silence.
577. Nattrass said professor of law of University of Baguio is just a joke, a title imprinted on a souvenir.
578. It was suggested that Nattrass combined and embellished evidence from different sources. He has been reminded not to mix what he heard with what he thought. He was subject to strenuous cross-examination and he stood by his evidence on the conversations with D3 and D4. It is important to note that apart from his concern for the reputation of Massie & Clement, he had nothing to gain but everything to lose in being a witness in this case. He had no motive to lie against D3 and D4, other than it was suggested that he was not a normal person. But as said before, he had been the managing clerk for Massie & Clement for almost 10 years.
579. Nattrass admitted he was no saint when being cross-examined on pornography. I dare say if he were a saint, it would hardly be inherently probable that anyone would have told him things in the nature of what he had given in evidence.
580. I bear in mind that Nattrass had been feeding the ICAC with information when the conversations with D3 and D4 took place. I also bear in mind his character and treatment by the ICAC as a witness in this case. I am left in no doubt that Nattrass has been telling the truth about the conversations with D3 and D4. Although his witness statement was taken some time later, I did not have any doubt as to his reliability to recount the events.
581. It was submitted that Mrs Reimer Lau was also an incredible witness. She lied that she had no interest in her previous insurance business since becoming a solicitor and was caught out in the company search. She held a grudge against D3 as he unwittingly revealed to the media that she abused the position as a solicitor in making legal visits to a prisoner. The matter led to the dissolution of the partnership. She denied any grudge and said D3 had already apologised to her and issued a warning letter to the magazine. It was said she was inconsistent as to who first brought up the subject of the habeas corpus during the Grissini lunch. It was also submitted that Martin Yeung held a grudge against D3 since D3 once threatened to terminate his articles. I accept Martin Yeung did not hold a grudge against D3, as his alleged misdeed in rendering fee note was not serious. Mrs Reimer Lau and Martin Yeung were consistent with each other on the conversation with D3 during the Grissini lunch. I accept they reliably related what they heard. As to the conflict between what D3 said during the Grissini lunch and to what he told Aaron Nattrass, I shall deal with the matter later.
582. It was submitted that the ICAC witnesses were tainted with mala fides:
(1) Eric Yang and Tony Lo did not attend the WSP on 12 July 2004 and the minutes were untrue;
(2) The original MOU was kept from Government Counsel and the courts in order to hide the fact that it was not signed by the Approving Authority;
(3) The monitored phone calls were kept from Government Counsel and the courts;
(4) There was no single written record of the Semtech SIM card and it was kept from Government Counsel and the courts in the hope that it would never see the light of day;
(5) Eric Yang's return and Affirmation was misleading in the omission as to whether the Approving Authority had signed the MOU;
(6) Daphne Lim agreed that Becky Wong's Affirmation did not give a full and true picture in omitting to mention the Semtech SIM card and the telephone calls between she and D2; and
(7) The first-hand listener's notes to the monitored phone calls were destroyed despite the requests by lawyers for D2 and D3 to keep them.
583. Much time was spent on the allegation that Eric Yang and Tony Lo did not attend the WSP meeting on 12 July 2004.
584. It was put to Eric Yang that he never attended the WSP meeting because he had never left his office in the security controlled area of Group G on 10/F to go to Gilbert Chan's office on 8/F.
585. The sketch plan of 10/F (sealed for security purpose) shows that in order to enter the security controlled area of Group G on 10/F, one had to use the encrypted warrant card to pass an outer security door with card reader 10J 10G GR to enter the corridor. The entry would be recorded on the computer, but any exit was not, as one only needed to press the button without using the warrant card. To enter the office of Section G1 from the corridor, one would have to pass either one of 2 doors with card reader 10I PI/G 1002 or 10I PI/G 1003. Eric Yang's card history on 12 July shows entry to Section G1 office (at card reader 10I PI/G 1002) at 3.54 pm, and again at 4.34 pm, the second entry without having first passed card reader at the outer door 10J 10G GR. That would suggest he had not exited the security controlled area behind door 10J 10G GR. Eric Yang was sure that he attended the WSP meeting, and said there was an internal staircase No.3 in the corridor, and he could have left 10/F to 8/F or 9/F and returned to 10/F without entering the security door 10J 10G GR. Eric Yang denied that Staircase No. 3 was sealed at 10/F. Eric Yang said it had to be accessible for fire escape for officers within the security controlled area in case of electricity failure. And the security was not lessened since from the corridor one still had to pass card reader 10I PI/G 1002 or 10I PI/G 1003 to enter the office of Group G1 on 10/F.
586. Gilbert Chan also said he would use Staircase No. 3 for access between 8/F, 9/F and 10/F. Miss Victoria Pun (PW73), Principal Investigator of Group G, also said Staircase No. 2 instead of Staircase No. 3 was sealed.
587. Similarly, it was put to Tony Lo that he never attended the WSP meeting on 12 July because he had never left his office in the security controlled area of Group G on 7/F to go to Gilbert Chan's office on 8/F. In order to enter the security controlled area of Group G on 7/F, one had to use the encrypted warrant card to pass one of several security doors. The entry would be recorded on the computer at the relevant card reader. To exit the security controlled area of 7/F, one would also need to use the warrant card, and the exit at the relevant card reader would be recorded.
588. It was put to Tony Lo that his access card history on 12 July shows an entry to the Group G office on 7/F (at card reader 7A#22(IN)) at 3.27 pm, and the next exit was at 5.04 pm at card reader 7D#43(OUT)). That would suggest he had not left the security controlled area of 7/F between 3.27 pm and 5.04 pm. Tony Lo said there was an internal Staircase No. 1 within the security controlled area of Group G on 7/F, and he could have left 7/F to 8/F and returned to 7/F without exiting any card reader on 7/F.
589. It was submitted that Eric Yang made a slip between whether Staircase No. 2 and No. 3 was sealed at one stage, and Victoria Pun was disoriented as to the area of Group G on the 10/F, showing they had something to hide.
590. I have absolutely no doubt that Eric Yang and Tony Lo attended the WSP meeting approving Becky Wong into the WPP. I accept that they had used the internal staircases. It would have been convenient for them to have said they slipped through the security door when someone else opened it.
591. It is true that the original MOU was not produced to Mr Ryan and the court. Eric Yang said although it was a secret document, it could be produced if necessary. He said Ricky Chu did not give him the full justification in asking to see the MOU. Tony Lo also said Eric Yang did initially refuse to release the signed MOU to the investigators of this case. Eric Yang said he refused since he was not told why.
592. It was submitted that Eric Yang misled the court in filing the return and Affirmation in only mentioning Becky Wong was a witness under the WPP having signed the MOU on 13 July 2004.
593. Of course the court was misled that Becky Wong was in the WPP because legally she was not. But I find that there was no intention on anyone's part or in conspiracy to mislead the court and to withhold the incompletely signed MOU. I do not see there was any reason to hide the MOU at all. Mr Ryan was consulted on 14 July, and the ICAC did not appear in court until 15 July. Had the fact that the MOU was still unsigned by the Approving Authority was known on 14 July, there was ample opportunity to have it signed. In any case, the issue of the habeas corpus was whether Becky Wong stayed with the ICAC voluntarily. She was and is still so. Ricky Chu said he decided to protect the secrecy of the document and decided not to produce it. Unwise as it may be, I do not find any mala fides. I can see Ricky Chu's reasoning in adhering to the letters of the legislation and not to open the floodgate. After all, the situation was new to all concerned and one would of course be wiser after the event.
594. Further, the prohibition against disclosure of the identity of a participant in the WPP applies equally to a person who had been considered for inclusion in the WPP, and as at 14 July, Becky Wong's position had been considered in the WSP meeting.
595. I find that it was expected Tony Lo was to give the MOU to Gilbert Chan to sign as soon as possible but he delayed since he was engaged in other duties. There was no malice whatsoever.
COURT: I will take the lunch break now, but I think if it is possible can we resume at 2.00, so that I can finish today.
(Discussion re timetable)
Court adjourns - 12.54 pm
Court resumes - 2.06 pm
All defendants present. Appearances as before.
596. There was also cross-examination on the ICAC officers on the use of the intelligence from the monitored calls in assessing the security of Becky Wong. Different officers have given answers which are not altogether consistent. It was asked rhetorically that if they were not made use of, why have them in the first place? I accept that ICAC officers below Chief Investigator level were not privy to such information. As to the senior officers, I well understand that this is a sensitive matter and they approached it with caution. It was pointed out that Patrick Ho said he never read the first hand listener's notes before attending the WSP meeting, yet his access card movement record shows him entering the Group G area before the time of the WSP meeting. On this point, I accept the account of Ricky Chu as most accurate. He said both actual and attempted contacts with Becky Wong were mentioned at the WSP meeting, although the details of the calls were not gone into. The inconsistencies did not cause me to doubt the credibility of the ICAC officers. While on this point, I remind myself that the intelligence gathered and minuted is not evidence of the truth of the content.
597. As to the point of withholding of information relating to the monitored calls and the Semtech SIM card in the instructions, Affirmations and other record, I note that the issue of the habeas corpus was whether Becky Wong was voluntarily staying with the ICAC or she was illegally detained. I have no doubt that Becky Wong stayed with the ICAC voluntarily, and the court documents adequately dealt with this point.
598. It was pointed out that there were omissions in the ICAC statements, logs, diaries, or record, e.g., there was no mention of the Semtech SIM card anywhere, or that Tony Lo's diary did not mention Becky Wong signing the MOU. I do not see such omissions as causing me any doubt on the prosecution evidence.
599. As to the destruction of the records, I accept Rebecca Li's evidence that monitored calls were intended for intelligence only and not as evidence, and Victoria Poon's evidence that there is a procedure for their destruction one month after the cessation of tapping, unless special request is made for its retention. The approximate date the ICAC could give as to the destruction of the records was 2 September 2004. The record for D1's call with Frankie Chung in the midnight of 13/14 July was retained but not produced, and I do not speculate as to what could be in it. Mr Daniel So (PW72), Principal Investigator in charge of this case had seen the first hand listener's notes on the call between Becky Wong and D2 on 11 July before their destruction and compiled an investigation report on it. It was said that the investigation report did not mention safe and sound. The report is not produced and I do not speculate on it.
600. It was pointed out that on 10 August 2004, D3 wrote to the Honourable the Chief Executive mentioning the calls by Becky Wong at 1.15 pm on 11 July 2004, 10.30 am on 12 July 2004 and 12.30 am on 14 July 2004 and requesting enquiries with the relevant mobile phone networks to preserve the calling records as they would prove the making of the calls by Becky Wong. This letter has found the way to the ICAC by 18 August 2004 latest. It was said that the destruction of the phone monitor records shows blatant disregard of the request and mala fides. Similarly, D2's solicitors wrote on 9 October 2004 to the ICAC for enquiry with the service providers for the time and place of the calls between D2 and Becky Wong on 11 and 12 July 2004. It was submitted that the request to preserve the call records show nothing to hide, and the destruction of the phone tapping records shows something to hide.
601. The fact is that the relevant call records from the network providers are produced by consent. I do not see any mala fides in the destruction of the phone tapping records, nor am I handicapped in trying the case.
602. It was also queried that Becky Wong was given bail for 1 day on 10 July. The events in this case did not start until later, and I saw nothing untoward in the decision. As to her release on bail, I accept that since she was protected by the ICAC, there was no point in asking her to be back on bail. I accept Mr Ryan's evidence that there is a metamorphosis from an arrested person to a witness starting with the giving of non-prejudicial statement.
603. Ricky Chu and Patrick Ho were given oral advice by their superiors because Ricky Chu once endorsed Patrick Ho's decision in denying legal access to 5 detainees on the ground of conflict of interests by the lawyer. They were advised that conflict of interests was for the lawyer to consider. Be that as it may, the lawyer in that case was instructed by an un-arrested suspect. I see no adverse effect on their credibility.
604. All in all, I do not see any mala fides on the part of the ICAC, and I accept the evidence of the ICAC officers. As to whether the intelligence from the monitored calls were mentioned at the WSP meeting, I accept Ricky Chu's evidence that both actual and attempted contacts with Becky Wong was mentioned. That was sufficient for the purpose of the meeting. Whatever fear Becky Wong was labouring under, and whether self-induced or whether she was over worrying, I find it entirely reasonable that protection was given to a potential witness in a case where she had given information into a public listed company and she felt she was in fear.
605. Subject to the aforesaid, and in particular to the rejection of part of the evidence of Frankie Chung, I accept the evidence of all the prosecution witnesses in this case.
606. As to the case against D4, it was submitted that he had lied, and his evidence should be rejected:
(1) D4 said in evidence that he made clear to all levels of court that all he wanted was for the court to ask Becky Wong whether she was voluntarily staying with the ICAC, yet before Hartmann J on 16 July, he said he wanted to cross-examine Becky Wong. Mr Wilson submitted that was an attempt to browbeat Becky Wong. D4 explained that was a tit for tat for Mr Ryan's request to cross-examine his witness, and he later changed back to his original position in asking the court to enquire with Becky Wong.
(2) D4 said after the first legal visit on 13 July, he thought the whole thing was over until he got instructions from Frankie Chung for the second legal visit, but in his letter of complaint on 13 July 2004, he stated that D2 now instructed him to make an application for habeas corpus.
(3) D4 said had he been told by Mr Ryan on 14 July that Becky Wong was a protected witness, he would have backed off. But when he was so told in court on 15 July, he did not back off and said he did not believe the ICAC. D4 explained that was because he was told that Becky Wong entered the WPP on 13 July, and it was too much a coincidence that he went to the ICAC to look for her on 13 July.
(4) D4 wrote the name of D1 in his diary in respect of Becky Wong, indicating D4 was actually acting for D1. His explanation that he made the entry as a reminder of the time spent, and he wrote down the name of D1 as he forgot the name of D2 was incredible because he could have written down Massie & Clement just as he did for an unrelated matter on another day that week.
(5) D4 said he was not reporting to D1 in the telephone conversation at noon on 15 July (Call 261). He was only keeping D1 in comfort politely as D1 was the client of D3. When he said he was smiling, it could mean the other side saw sense and produced Becky Wong. But if so, how would the other side be appealing then?
(6) D4 said in Call 261 that he would try to explain the situation to D3 without breaching the order of Yam J. When asked how he could do so, all he could say was to say to D3 he was sorry that he could not tell him anything because of the gag order.
(7) D4 said Call 261 was not in breach of his undertaking to the order of Yam J because the spirit of the order was not to disclose that Becky Wong was in the WPP and he did not do so in Call 261. But Yam J's order was no communication of the order itself, and by saying that the other side was appealing, he was effectively saying the habeas corpus was granted.
(8) D4 said Carmen Hsu rang him soon after he left the ICAC on the night of 13 July, and while Carmen Hsu knew about his lack of success at the ICAC, he never asked her how she knew it. It was submitted that was plainly incredible.
607. Mr Wilson submitted that upon rejecting D4's explanation, the court should draw an inference that D4 knew the whole plan to get access to Becky Wong was a sham:
(1) He knew that D3, solicitor for D1 and not for D2, was playing an active part in the habeas corpus proceedings;
(2) He knew that D3 could have Massie & Clement sacked;
(3) He knew D2 was puzzled like a fish out of water;
(4) He knew the possibility of Becky Wong being persuaded to be an ICAC witness;
(5) He asked D1 about the possibility of Becky Wong becoming an ICAC witness, but readily accepted the answer of no way from a person whom from experience he should have known to be the target of the evidence;
(6) His diary entry recorded the name of D1 instead of D2 in relation to the first legal visit to access Becky Wong;
(7) He wrote in the complaint letter dated 13 July 2004 that he hoped the matter could be resolved sensibly, but he left the ICAC after 15 minutes;
(8) Soon after the first legal visit, he received a call from Carmen Hsu and she had already known about his treatment at the ICAC, while there were frequent telephone contacts between him and D3 and D3 and Carmen Hsu, and then he faxed the complaint letter to Carmen Hsu, which on the next day Tsing Tao Daily published the story that Becky Wong was illegally detained;
(9) He registered no surprise when Frankie Chung from another firm instructed him to seek legal access to Becky Wong;
(10) He was not backing off, not even needed to ask for an adjournment to seek clarification from the client, when told in court that Becky Wong was in the WPP;
(11) He failed to disclose to all the courts that D1 was his real client when asked who his client was;
(12) At Call 261, he was reporting to D1 what was happening before Yam J in breach of the undertaking to Yam J;
(13) He saw D1 at the FCC soon after Call 261, where he told D1 that he would try to explain to D3 what the situation was without breaching the order, and no doubt D3 would contact D1, and that was not possible;
(14) D4 said he would only discuss sensitive matters face to face, not on the phone, since he suspected his phones were tapped;
(15) D2 was not informed that Becky Wong was in the WPP by Raymond Lau;
(16) He knew as he had told Nattrass that Becky Wong had to be reached urgently before it was too late.
608. Mr Wilson submitted that Frankie Chung's lie to D4 was of limited significance because as at 13 July before Frankie Chung had met D4, D4 was committed in the active steps in the conspiracy, and wrote in the complaint letter that he already had instructions from D2 to apply for habeas corpus.
609. Mr Wilson submitted that the only reasonable inference was that D4 was acting for D1 with D3 giving him instructions, i.e., D2 was a nominal applicant only, and when asked by the courts who was his client, he misled the court in saying it was D2 without mentioning D1, and he lied in this court in saying D1 had nothing to do with Becky Wong, and hence, D4 knew the instructions that Becky Wong sought release from the ICAC was a sham, and the real motive was to stop Becky Wong from assisting the ICAC before it was too late.
610. Mr Wilson submitted that if D4 were solely motivated by the belief that Becky Wong was being held against her will, then that would be the end of the prosecution.
611. Since D4 had never spoken to Becky Wong, and as counsel he would normally act on instructions from client, be it D1 or D2, his knowledge or belief at the material time of Becky Wong's status is essential.
612. Say if at the material time D4 did believe Becky Wong was being held against her will, and as such he also wanted to influence her against providing assistance to the ICAC, and it turned out that Becky Wong did seek to be released from the ICAC, would D4 have the requisite guilty intent? I say not.
613. Hence, I must consider whether an inference of knowledge or belief that Becky Wong was not lawfully detained and did not seek release from custody could be drawn against D4. In fact, I will so do for the other defendants as it is apparent from my consideration of no case.
614. It is alleged that D4 lied or misled the courts in not disclosing that D1 was effectively his client, and he also lied in his evidence that D1 had nothing to do with Becky Wong, and I am entitled to consider whether this supports the case brought against him by the prosecution. In this regard I should consider two questions:
(1) I must decide whether D4 did in fact tell the lie. If I am not sure he did, I ignore the matter altogether. If I am sure, then I shall consider:
(2) Why did D4 lie? The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, and they may possibly be "innocent" ones in the sense that they do not give any indication of guilt, for example, lies to bolster a true defence, to protect somebody else, to conceal some disgraceful conduct short of the commission of the offence, or out of panic or confusion.
615. If I think that there is, or may be, an innocent explanation for his lies then I should take no notice of them. It is only if I am sure that he did not lie for an "innocent" reason that his lies can be regarded by me as evidence which supports the prosecution's case.
616. With much sadness, I say D4 has not been a truthful witness. His explanation of Call 261 was lame and feeble. Yam J's order prohibited the communication of the order itself and D4 had given his undertaking. His explanation as to how he could explain the situation without breaching the gag order really defies imagination. Be that as it may, I still have to look at whether the prosecution evidence supports an inference of guilt against D4.
617. I am sure D4 knew that D1 and D3 had an interest in the habeas corpus application. D3 gave him the initial instructions at the FCC, and the telephone contacts with D3 shows D3's concern. He wrote down D1's name instead of D2's name in his notebook, although he did not write down D1 was his client. On the other hand, he would not have written down D1's name unless he thought D1 was closely related to the case. He effectively told D1 the outcome of the hearing before Yam J. D4 tried to liken his mistrust of the ICAC to the queries by Yam J and Hartmann J. With respect, their Lordships did not know about the background and involvement of D1 and D3.
618. But then was he misleading the court in not telling D1 was his client? Legally speaking, D2 was his client. D2 had telephone conversations with Becky Wong and she claimed that Becky Wong wanted release. D4 might have thought on that basis, D2 was the proper client. I feel I am in a chicken and egg situation of lie and knowledge on the part of D4. The report to the police, involvement of the press or speaking to Magdalene Chow, extraordinary they may be, do not lead me to a conclusion beyond doubt.
619. It was submitted that Frankie Chung's lie to D4 was not of significance. I can of course ignore his lie to D4 if D4 knew it was a sham all along. Mr Wilson submitted that D4 was already committed in active steps of the agreement before D4 met Frankie Chung. The active steps were the legal visit and telling the ICAC he had instructions to apply for habeas corpus. But what agreement: the brief or the conspiracy? That again begs the question of knowledge.
620. In all the circumstances, I am sure that D4 must have known that and intended his acts would have the tendency of influencing Becky Wong, but I cannot be sure that D4 knew it was a sham. Hence, I cannot be sure of his guilt under the 1st charge.
621. I shall consider the cases of the other defendants. I bear in mind the considerations, submissions and inferences at half time without repeating them all.
622. It was pointed out that D2 never tried to influence Becky Wong during the conversation when she was told about market manipulation and illegal money. Yet she did not say she would try to save Becky Wong. It shows D2 knew perfectly well Becky Wong had turned ICAC and was merely tipping her off.
623. At half time, I indicated that "safe and sound" was "平安無事", literally meaning "safe and no incident" or nothing to worry about. Sitting as a jury, I find that there is no inconsistency between the evidence of Becky Wong and the official translation of safe and sound.
624. It was submitted that there was no subterfuge on the part of D1 since Frankie Chung was known to the ICAC. It was submitted that D1 and D2 were only in the office of D3 for 15 minutes before going to Massie & Clement, and this makes the innuendo of D2 being coached most unlikely. D1 and D3 did not stay to monitor D2 give instructions to Mr Clement. Hence, the inference was D2 was left with full liberty to give instructions. There was no urgency on the part of D1 as he first asked Frankie Chung to try to access Becky Wong on 11 July, and it was not until the 13th that D4 went to the ICAC. It was already too late and not a case of before it was too late. Be that as it may, D1 was active behind the scene in giving instructions to Frankie Chung for the second legal visit, and D3, solicitor for D1, was also active behind the scene in arranging for more urgent action to be taken, resulting in the first legal visit. It was decided upon at the FCC when D1, D2 and D3 were present. The action of going to the ICAC is definitely more urgent than sending a letter the next day.
625. It was submitted that D1 never intended to conceal the payment of the legal fees. It was consistent with D1 providing for D2 in the past. Be that as it may, the fact remains that D1 paid for the legal fees of the legal visits and the habeas corpus application via Ever Brilliant, and even not conclusive in itself, it is a relevant fact to be taken into account.
626. It was submitted that D1 never knew D3 or D4 before, and he would hardly know about the ill feeling between D3 and D4 and the ICAC. He was simply drawn into the maelstrom instigated by the lawyers. It was also asked why would successful lawyers like D3 and D4 risk their careers conspiring with strangers for apparently no great fees?
627. It was submitted that Mr Clement saw nothing unusual or sinister in Massie & Clement being briefed. The relationship between D2 and Massie & Clement was singularly and properly lawyer and client: "no money, no honey" as Raymond Lam explained why D2 needed to pay before the application for habeas corpus. Mr Clement's opinion was of course based on the information he possessed. But Mr Clement did not know about the relationship of D1 and D2, and he said he would have disclosed it in the affidavit had he known about it.
628. Mr Wilson sought to rely on the lie by D3 in the talk back radio that he acted for D1 much later, while the file record showed a conference on 13 July. However, I also note that D3 also said that he did not act for D1 at the time of his arrest on 9 July. What is later or much later is open to debate. Hence, I do not rely on such evidence.
629. I have found D4 not guilty on the 1st charge. I have to consider what impact his acts and declarations, not as co-conspirators but as frolics of his own would have on the other defendants. It was also suggested that the impasse between D4 and the ICAC had contributed to the escalation of the action.
630. Granted Becky Wong was not asked whether she had contacted any lawyer until after the second legal visit by D4, but her position was and still is that she stayed with the ICAC voluntarily, and she did not want to leave. If D4 were told that, he would have disbelieved it, just as he did so on 15 July, But that is hardly surprising, because the instructions by D2 to Mr Clement was to get access to Becky Wong, and if not possible, to do whatever is possible, including court action. D4's action was consistent with such instructions, and D1 and D2 could hardly have expected otherwise because they knew Becky Wong did not seek release from the ICAC. After the lack of success at the ICAC and the police station, D1 told Frankie Chung to accompany D4 on the second legal visit without Becky Wong ever ringing back, and D2 paid Massie & Clement the fees of $150,000 for the application for habeas corpus. The payment of fees was a critical step in the entire proceeding, as D1 and D2 could not have failed to realise that they were paying the lawyers to carry out their instructions, that is the acts in particulars (a) to (c) of Charge 1 were undertaken pursuant to such instructions.
631. As to the fact that D3 told Mrs Reimer Lau and Martin Yeung that he planned the habeas corpus and would switch on all the machines to expose the abuse of the ICAC, I find that D3 did plan the habeas corpus and switch on all the machines, meaning involving the press.
632. Carmen Hsu rang D4 so soon after the first legal visit and knowing his lack of success. Given the pattern and timing of telephone calls between D3 and D4, the only reasonable inference was D3 had told Carmen Hsu about it, and she was referred to D4 for more details. D3 was using Carmen Hsu as part of the machines at his disposal. The result of involving the press was achieved notwithstanding D4 was not in the conspiracy.
633. I have found that D1 did tell Frankie Chung that D3 was going to arrange for a press conference for D1 and that made him happy. Although there was no press conference during the period of the conspiracy, the press was certainly involved resulting in the Sing Tao article reporting that Becky was illegally detained. As I have found D3 and D4 not guilty on the 3rd Charge, I ignore the SCMP article as an effort in involving the press by D3. I find that D1 and D3 did agree to involve the press in carrying out the object of the conspiracy in the 1st Charge.
634. As to whether the machines were switched on to expose the abuses by the ICAC, I reject that D3 believed Becky Wong was illegally detained by the ICAC. I have accepted Aaron Nattrass as a truthful witness. D3 would not have told him that D2 had been paid and she would not say anything to the ICAC unless it was true. Mrs Reimer Lau and D3 had a dispute before and would not be persons sharing their confidence. D3 would have just told her the official line, such as he had confidence in the habeas corpus application. And as to the inference on D2 being paid and would not say anything to the ICAC, why would a lawyer be told this unless he was in it together all along? That is the only reasonable inference.
635. As to the point that seeking access or asking the court to ascertain Becky Wong's wishes were mere neutral steps too remote to influence her not to co-operate with the ICAC, I have already said at half time that any application for habeas corpus cannot admit an abuse where it was known or believed that Becky Wong was not illegally detained and did not want release from the ICAC. Given the propensity of Becky Wong being a fragile person, which must be known to D1 and D2, and D3 must have from experience known the volatility and sensitivity of arrestees in the process of turning prosecution witness, and with the fact that she did consider withdrawing from the WPP, the only reasonable inference is that the acts were intended to and believed to be and did have the tendency to influence Becky Wong.
636. As I have accepted the evidence of the prosecution witnesses (whereas in the case of Frankie Chung, to the extent I have indicated above), I find the inferences of guilt discussed at half time can all be taken to their logical conclusions at the ultimate standard of proof of beyond reasonable doubt.
637. I am satisfied beyond reasonable doubt that D1, D2 and D3 did conspire together with Frankie Chung in the one conspiracy to pervert the course of justice in seeking access and applying for habeas corpus on behalf of Becky Wong when they knew or believed that she was not unlawfully detained and did not seek release from the custody of the ICAC, and they did so with the intention to and did carry out the acts to influence her against providing assistance or information to the ICAC and the acts did have such a tendency which was within their contemplation.
2nd Charge
638. Again, I bear in mind the submissions and consideration at half time without repeating them all.
639. Mr Adams submitted that mistake of law or mixed facts and law is a defence to a specific intent crime and any attempt thereof, and the mistake of law was that Raymond Lam and the administrator of the oath believed that the oath of the interpreter was not necessary and in not orally administering the oath. With respect, D2 was under no mistake at all. She knew that she had to tell the truth under swear, and she did everything she was told to do for the purpose of making an oath. The mistake was not on her part and it was something beyond her contemplation or control.
640. It was pointed out that Becky Wong's parent's immigration records show that between 14 and 17 July they had made day or overnight trips across the border. But it is a quantum leap to say she had no close family members in Hong Kong, and Becky Wong never said she failed to contact them during the relevant time. I find that D2 did not believe that Becky Wong had no close family in Hong Kong because she was never told so and she made it up. The fact that D1 had told Frankie Chung or D3 had told Mrs Reimer Lau that Becky Wong had no family members in Hong Kong did not cast any doubt on my finding.
641. I am sure that D2 understood the content of her Affirmation as it was interpreted to her by Raymond Lam and she did not raise any objection. I said I would ignore the reference to the snatching of the mobile phone as it was a wrong choice of word, but I am still left in no doubt that she made up the story that Becky Wong's SIM card was confiscated as well as the other untruths mentioned in the discussion on no case.
642. Having accepted the evidence of the prosecution witnesses, I find that D2 knew it was false or did not believe it was true when she said Becky Wong did not know where she was, she worried about the well-being of Becky Wong because she had no close family members in Hong Kong, and she omitted to mention Becky Wong had said she was safe and sound which made her alleged belief that Becky Wong was detained unlawfully untrue. The fact Becky Wong had no close family in Hong Kong is corroborated by the evidence of her parents and sister and their immigration record, and this fact is material as discussed.
643. I am satisfied beyond reasonable doubt that D2 did intend to make an Affirmation, and it contained statements which were material and wilfully false to her knowledge and not due to mere inadvertence or honest mistake, and there is corroboration by independent evidence in a material aspect. D2 did give instructions for the preparation of the Affirmation, which was interpreted to her in Chinese, and she signed on the Affirmation to indicate that it was affirmed by her after being told that she was to tell the truth under swear, save that it was not lawfully sworn for reasons beyond her control. It was filed on her behalf in judicial proceedings. Her acts were more than mere preparation to the offence of perjury. Hence I find her guilty on attempted perjury as an included offence under the 2nd charge.
4th and 5th Charge
644. I shall deal with the 4th and 5th charge before I deal with the 3rd charge, as the 4th and 5th charge constitute the overt acts of the conspiracy in the 3rd charge.
645. It was submitted that Magdalene Chow was not a credible witness. It was pointed out that Charmaine Mok said Magdalene Chow rang her at 3 pm to 4 pm on 15 July and said a lawyer had told her the term "protective custody", and Magdalene Chow's evidence was that she first spoke to D4 during the break before Hartmann J at 5.34 pm. Hence, the lawyer referred to in Charmaine Mok's conversation could not have been D4. However, what Magdalene Chow said was she heard the term from Sarah Bradford and she rang Charmaine Mok to find out its meaning. She was never challenged as to that and was never asked about her conversation with Charmaine Mok.
646. Magdalene Chow was cross-examined extensively on her journalist's notebook. At the request of the ICAC, she transcribed her own handwriting at pages 29 to 36 of the notebook as relating to her conversations with D4 and Mr Clement on 15 July 2004 (Exhibit D26A).
647. Magdalene Chow said pages 29 to 35 of her notes related exclusively to her conversation with D4, and page 36 related to Mr Clement, and they did not contain what other journalists had told her. What Sarah Bradford told her were contained in the notes typed by Sarah Bradford. If other reporters had told her things in Cantonese, she would not necessarily translate all into English, and would record down in Chinese.
648. It was put to Magdalene Chow as her notebook did not contain the evidence she had given against D4, that means D4 had never told her such things. She denied that.
649. It was put to her that in the notebook the phrase "last night ex parte inter partes order to appear" were information gathered from reporters appearing before Yam J on 14 July. She denied it. She said she asked D4 outside court why the habeas corpus application turned out to be in chambers, and D4 told her the answer and she wrote down "in exceptional circumstances the judge can order the court to be heard in chambers". She did not say this when giving evidence in chief because she only recalled it when being shown the notebook. And when she gave her witness statements on 24 July, 27 July and 10 September 2004, she did not have her notebook and gave the statements from her memory. Only in her statement dated 11 August 2005 that she dealt with her notebook.
650. It was put to her that she put down the phrase "she was persuaded to remain in 'protective custody'" with "protective custody" in inverted commas because she took it from D4's letter of complaint to the ICAC. She denied it. She said she put "protective custody" in inverted commas because it was a special term, and it was pure coincidence that the term was in inverted commas in the letter.
651. It was put to her that the phrase "not held unlawfully ICAC alleged voluntarily stay with them" were also gathered from the other reporters as words used by D4 at the ex parte hearing before Yam J. She also disagreed.
652. It was put to Magdalene Chow that at page 30, the phrase "I file an application an affidavit + annexed exhibit" came from a solicitor rather than a barrister, because the person who filed the application would be a solicitor. She disagreed she heard that from a solicitor, and insisted she heard it from D4. She said as D4 said "I", she put down "I".
653. It was further put to her that another phrase "I drafted copy document writ of habeas corpus" could not have come from D4, but she was adamant that it came from D4 during the first conversation. It is noted that the next sentence was "witness protection ordinance chapter 564" but without any mention of the Criminal Procedure Ordinance. Magdalene Chow said she recalled that Criminal Procedure Ordinance was said but she did not jot it down as she knew this Ordinance.
654. At page 34 of her notebook, Magdalene Chow put down "chief appointed Yeung Yau? principle investigator as the authority". She said she was supposed to put down "Yeung Yan" as referring to Eric Yang. It was put to her that she must have heard a journalist saying in Chinese "Yeung Yan Tak" instead of D4 saying Eric Yang in English, so she jotted down "Yeung". Magdalene Chow said she did not hear any journalist mention "Yeung Yang Tak". She said she heard D4 mention Eric Yang, and she jotted down "Yeung Yau" subconsciously as he knew Eric Yang was Yeung Yan-tak. Be that as it may, it is noted that when D4 addressed Hartmann J on 16 July, D4 told the court that the members of the press recognized "Mr Yeung Yan-tak, Eric" who made the initial return in the case. D4 did not say Eric Yang either.
655. It was put to Magdalene Chow that she said in her witness statement that she went over to talk to D4 when he walked away to have a cigarette. It was put to her that D4 does not smoke. Indeed, Mr Ryan, Mr Clement and D4 himself all said he does not smoke. Magdalene Chow said nevertheless, she remembered the person she spoke to was D4.
656. Mr McNamara submitted that the immunity offered to Magdalene Chow was unprecedented. It was offered to her, Sarah Bradford and all the editorial staff of the SCMP before she actually gave her witness statement. Furthermore, the solicitor advising Magdalene Chow was solicitors acting for SCMP, and she was not advised to seek independent legal advice when there was a conflict of interest. It was submitted that as she decided to blame someone, why not D4.
657. Magdalene Chow said D4 had to go to the District Court on 16 July, so that Hartmann J adjourned the case to 3 pm on 16 July. In fact D4 did not have to be at the District Court and she was wrong on that. But that did not affect the credibility or reliability of Magdalene Chow. I also do not accept the suggestion that she spelt Principal Investigator wrongly as "principle" because the ICAC Telephone Director described Eric Yang by the abbreviation "Prin Investigator".
658. I note that Mr Clement did say that he did not hear D4 breach the gag order of Yam J. Mr Clement is a friend of D4 and it is understandable that he would give evidence with a certain circumspect. I also note that Magdalene Chow said she asked Mr Clement that she did not understand why after Yam J granted the habeas corpus, and Becky Wong was not released. Mr Clement said that a return to the habeas corpus had to be filed.
659. Upon careful consideration, I have no doubt that Magdalene Chow is a credible witness. She stood by her evidence firmly. I do not accept that she blamed D4 in order to save herself and the SCMP. I accept her evidence of the two conversations with D4 on 15 July, and her notes related to the gist of the conversation with D4, and she did not repeat everything in her evidence. I also accept Eric Yang's evidence that he had never appeared in court in connection with the WPP before, and he was a witness in a case where D4 defended. Notwithstanding that Eric Yang's connection with the WPP could be gathered from the public domain, I accept Magdalene Chow's evidence that she heard it from D4. I reject D4's evidence that he did not know Eric Yang from a bar of soap, that it was Carmen Hsu who mentioned Eric Yang in connection with the WPP, and that he never had the two conversations with Magdalene Chow.
660. Granted that much in the SCMP article was in the public domain on 15 July, I accept Magdalene Chow's evidence that as far as she was concerned, the mentioning of Becky Wong in connection with the Witness Protection Ordinance and the WPP came from D4. I bear in mind that D4 did not tell D1 that Becky Wong was included in the WPP during Call 261, but it did not cast any doubt on the matter.
661. In the first conversation which is the subject matter of the 4th charge, Magdalene Chow asked D4 about protective custody and D4 mentioned the Witness Protection Ordinance. Magdalene Chow further asked about Becky Wong and D4 spoke of his legal visit to the ICAC. It must be borne in mind that the ex parte hearing before Yam J was in open court, and the name Becky Wong and the term "protective custody" albeit in inverted commas as well as some background of the case were mentioned in open court. Hence, by mentioning the Witness Protection Ordinance in relation to protective custody, D4 was effectively linking Becky Wong to the WPP. The only irresistible inference is Becky Wong was a participant in the WPP.
662. In the second conversation which is the subject matter of the 5th charge which took place after the first conversation, D4 explicitly mentioned that Eric Yang was the officer in charge of the WPP, the features of the WPP, and the ICAC had to bring Becky Wong to court to explain the legal basis of keeping her. The only irresistible inference was Becky Wong was a participant in the WPP.
663. The 4th and 5th charges are framed as attempting the impossible by reason that as at 15 July 2004, Becky Wong was not a participant in the WPP. Hence D4's belief that Becky Wong was a participant in the WPP is essential.
664. Mr Wilson submitted that D4 could be found guilty on the 4th and 5th charge even if he were found not guilty on the 1st charge. He submitted that D4 did believe that Becky Wong was in the WPP, otherwise, he would not have disclosed it to Magdalene Chow, and what he told the court was counsel's talk, i.e., putting forward the instructions of his client as counsel.
665. It is noted that as early as 13 July, D4 said to the ICAC officers that Becky Wong was put in a safe house, and he wrote in the complaint letter that Becky Wong wanted to leave "protective custody". Mr Wilson submitted that D4's explanation in the letter to the Secretary for Justice that the term "protective custody" was used in a cynical, mocking manner was just to avoid the consequences of his complaint letter. Hence, D4 believed that Becky Wong was in protective custody on 13 July, even though it might not be in the context of the WPP. In the morning of 15 July, he was told in court that Becky Wong was in WPP, and he admitted that he had read the Witness Protection Ordinance in court and knew about the prohibition against disclosure. Hence, it was submitted that D4 believed Becky Wong was in the WPP.
666. D4 said in evidence that he did not believe Becky Wong was in WPP and he was right. Of course he was right, but only in the sense that the Approving Authority had not signed the MOU as at 15 July. It is noted that when D4 was before Hartmann J in the afternoon on 15 July before the break, he did refer to the Approving Authority under the Witness Protection Ordinance, but only in the context that Becky Wong was under the care and control of the Approving Authority, not that he had not signed the MOU.
667. It is important to revisit in more details what D4 said in court in response to being told that Becky Wong was in the WPP.
668. When the parties appeared before the Court of Appeal in the early afternoon of 15 July, Mr Ryan again disclosed that Becky Wong was in the WPP. D4 challenged that as unsupported by any evidence. Mr Ryan then said Becky Wong signed the MOU on 13 July. Stock JA asked to see the MOU and Mr Ryan said he did not have it as it was a secret document. Then D4 complained that he wanted to see the pro forma MOU and Becky Wong's statement before Yam J in the morning but was shown neither. Then Stock JA said it would be one hell of a story to be making up. D4 replied that he did not suggest the ICAC or Mr Ryan were in the habit of making things up, but what he, through his long, bitter experience with the ICAC, had learnt was that the ICAC were not adverse to putting pressure on people to achieve the ends that they wished to achieve. He had his ingrained suspicions, through long experience of dealing with the ICAC, that Becky Wong might well be in a situation where she had really got no option, and she was pressured by the ICAC officers into being a witness, if that was in fact what her situation was (see Transcript page 305).
669. When the parties appeared before Hartmann J later in the afternoon of 15 July, the return and draft Affirmation of Eric Yang were read out. D4 accepted that in civil proceedings, an undertaking to file an affidavit was as good as the affidavit having been sworn and filed, but said there was the contrary affirmation from Frankie Chung. Then D4 had this to say: "One of the problems they do have as an organization is that they are overzealous. They try that little bit extra. And it is highly possible in this case that is what happened because when a young lady and assume she's never been in trouble before, has got a bunch of ICAC officers surrounding her in a safe house somewhere in Hong Kong saying 'We want you to be a witness' and who knows what else they're saying, possibly, 'If not, you'll be a defendant'. I don't know that. I'm just speculating from what's happened in past occasions. Of course the young lady is going to be compliant and submissive, and if they say, 'sign this', she is going to sign this." (see Transcript page 323).
670. Hartmann J said she might have signed up in the WPP, but there was no evidence whether Becky Wong was free to come and go. Then D4 said that he thought the reason Yam J was skeptical of Becky Wong's statement was it was written by an ICAC officer and her signature allegedly appeared on it. So one could imagine the scenario in the safe house surrounded by ICAC officers, "Sign that", and she signed. It was worthless. (see Transcript page 327).
671. Then came the substantive hearing on 16 July where the Affirmation of Becky Wong as well as D2 were filed. Then D4 addressed the court on the Stockholm syndrome.
672. I remind myself that the date of the 4th and 5th charge was 15 July. Although I may look at all the circumstances of the case to determine D4's state of mind, however due to the rapid development of events, the evidence on 15 July was of course of more relevance.
673. I note that Mr Ryan did not produce to the court the signed MOU but only a pro forma, which for all intents and purposes is identical to the MOU signed by Becky Wong except for the signature. Be that as it may, I have ruled out mala fides on the part of the ICAC.
674. After considering all the circumstances and what D4 have said to the courts on 15 July, I reject his evidence that he did not believe Becky Wong was in the WPP. I am sure that he did believe that Becky Wong was in the WPP when he made the disclosure to Magdalene Chow notwithstanding he had instruction that Becky Wong wanted to leave the ICAC. Before Mr Ryan said Becky Wong was in the WPP, the position was D4 told Daphne Lim that and in the complaint letter of 13 July 2004, and what he had indicated to Mr Ryan that he believed Becky Wong was in protective custody in a safe house but he had firm instructions that she wanted to leave. With the disclosure of Becky Wong being in the WPP, mutatis mutandis , D4 did believe that Becky Wong was in the WPP notwithstanding he had instruction that Becky Wong wanted to leave the ICAC. I find that he did intend to disclose when he made the disclosure to Magdalene Chow albeit not within the conspiracy of the 1st charge.
675. No lawful authority or reasonable excuse has been raised, and I can see none. The disclosure that Becky Wong was a participant in the WPP (which was purportedly a fact) was in camera and subject to the gag order of Yam J. Magdalene Chow was not a necessary party to the habeas corpus proceedings, and had no interest to know or to report unless and until the gag order was lifted.
676. Hence, I am satisfied beyond reasonable doubt that the 4th and 5th charge were proved.
3rd Charge
677. At half time, I ruled a case to answer by D3 and D4 on the 3rd charge on the basis of the telephone contacts between D3, D4 and Carmen Hsu and D3 asking Magdalene Chow whether the SCMP had reported the proceedings on the previous day.
678. Mr Harris submitted that Magdalene Chow was not certain as to whether D3 did ask her this question, or whether he asked her whether there was anything new. Applying the higher standard of proof, I cannot be sure that D3 and D4 conspired together to disclose the identity of Becky Wong as a participant in the WPP.
679. In the premises, D3 and D4 are found not guilty on the 3rd charge.
H H Judge Fung
Present: Mr Roger Beresford, on fiat, for HKSAR
Mr Lawrence Lok, SC, leading Mr Edwin Choy, instructed by Messrs David Lo & Partners, for the 1st Defendant
Mr Nicholas Adams, leading Miss Michelle Chong instructed by Messrs Leung, Lien & Co., for the 2nd Defendant
Mr Graham Harris, leading Mr David Khosa instructed by Messrs Pang, Wan & Choi, for the 3rd Defendant
Mr John Patrick McNamara, instructed by Messrs Robertsons, for the 4th Defendant
(1) Applications for leave to appeal against conviction of Court of Appeal by 1st, 2nd & 3rd defendants dismissed and application for leave to appeal against conviction to Court of Appeal by the 4th defendant allowed. Appeal to Court of Appeal by the 4th defendant by way of case stated dismissed. Please see CACC248/2006, CACC140/2007 & CAAR8/2006 dated 12 February 2009 (2) Applications for leave to appeal to Court of Appeal against sentence by the 1st, 2nd & 3rd Defendants dismissed. Applications for review of the 1st & 3rd Defendants allowed. Please see CACC248/2006, CACC140/2007 & CAAR8/2006 dated 14 July 2009