THE QUEEN v. CHUI CHIU KWONG

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application for leave to appeal against convictions on charges of doing an act tending and intended to pervert the course of public justice. There were two charges brought before Judge Roy in the District Court. In the first charge the act alleged was the instruction of a police constable, a potential witness in a trial in the Kowloon District Court, to give false evidence on oath. The second charge alleged that the same constable was instructed to give false information to a  police officer of the Complaints Against Police Office.

2. In the first instance we observe that this is a very wide Common Law offence and, as was said by Lord Widgery in Reg. v Kellett,

"The law's purpose in this type of case is to preserve the freedom of the witness to give evidence in accordance with his oath."

 

3. The whole difficulty in this case stems from a lack of particulars in the charge. Nevertheless we are satisfied that the charge were in no way defective. It was open to the defence, if it felt that if there was any danger of misunderstanding, to ask for particulars, and there is no doubt that if particulars had been asked for they would have been ordered. Much of what has been argued on behalf of the Applicant is based upon the existence of a Summary of Facts - perhaps more accurately described as a Summary of Evidence - which was a document, customarily supplied to the defence by the prosecution, indicating the nature of the case which it is proposed to bring, and in that Summary it appeared that the manner in which the case was to be proved was by showing that the instruction was to give evidence materially different from the statement that had been given by the prospective witness previously. It is argued that that does not show that the evidence to be given in court was to be untrue rather than, in fact, the truth. It seems to us that, in adopting the phrase that it did, the prosecution was really using a form of shorthand: it was going to prove that there was an instruction to change the evidence to which the witness was at that time committed to give. The fact that particulars were not asked for seems to us to show that the defence was satisfied that it knew very well what the case actually was going to be and the charge makes it quite clear that it was a charge of instructing the witness to give false information on the second occasion.

4. The judge in adopting this same language from the Summary clearly assumed - as everybody else had done - that the statement given by the witness was true in the mind of the witness and that, if he gave evidence which differed from it, the evidence would necessarily be untrue. The evidence of the witness coincides with that position. We give merely two main examples. The witness said, first, that there was no one else on the bus: he was instructed to say that there were seven or eight people on the bus. Secondly the witness said the lighting at the time was "clear" in the toilet: he was instructed to say that it was dim. In both those cases there is a manifest conflict and the evidence he was instructed to give was untrue on the basis of the witness's own belief. As to the white powder, an instruction was given not to give a straight answer in court. That sort of instruction is not conducive to the maintenance of public justice. It was not necessary that there should be any more than the statement by the witness as to what he believed the truth to be - and here that evidence, as I have just indicated, was given - and there was evidence from the witness that he was told that he was to say something different which would be untrue.

5. A complaint was made of the use of the word "instruct" in the charge, but we think that the respective ranks of the persons involved made the use of that word necessarily appropriate. We are further satisfied that the judge did make an express finding as to the intention of this Defendant. He said

"I have not attempted to traverse all of the evidence in this judgment. However I do find that the two meetings between the defendant and P.C. 45128 were held at the instigation of the defendant; that the first meeting was an attempt by the defendant to obtain help for P.C. 14058 by getting the Police Constable to change his evidence in Court; and that the second meeting was in an effort to persuade P.C. 45128 to give a further statement to CAPO which would contain false information. I further find that events in relation to the two meetings occurred substantially as related by P.C. 45128; and for the reasons I have mentioned that the evidence of P.C 289 as to his presence at the January meeting is untrue and has been introduced as manufactured evidence for corroboration purposes in order to assist the case of the defendant. It has been shown in my judgment beyond reasonable doubt that the defendant sought to pervert the course of justice by these actions and I therefore find him guilty on both counts."

6. In relation to the second charge it was argued that the distinction between the two charges was not appreciated by the learned judge. In our view the distinction between them is patent: one was involved with evidence to be given in court and one with a statement to be made to a police officer in the Complaints Against Police Office. Again the failure to ask for particulars indicates that the defence had no real doubt as to the precise nature of the case which it had to meet.

7. The point was sought to be made that the instruction in the second charge was to make a supplementary, as distinct from an amended, statement. We think there is no substance in this. The fundamental point was that his story was to be changed.

8. Objection was taken to the disbelief of the evidence of Constable 289 for four reasons which were given by the judge in detail. In our view these reasons were sufficient, but in particular we think that his third reason - namely that if the Constable had really been present on 9th or 10th January the Defendant would have mentioned it - is conclusive of the matter.

9. It is suggested finally that the judge did not correctly direct himself as to the burden and standard of proof. The passage which I have read from the Reasons for Verdict shows that he did. In the course of reaching a decision he necessarily had to asses the relative credibility of the witnesses on each side, but that does not mean that he left the matter in a mere state of balance. He said in terms that he was satisfied beyond reasonable doubt.

10. Accordingly, we have come to the conclusion that there is no real substance in any of the matters which have been argued before us and we think that the application must be dismissed.

11. We would, however, not leave this case without a word of tribute to P.C. 45128, CHAN Hung-cheong, whose courage and sense of responsibility in this matter is worthy of praise.

12. The application is dismissed.

1st August 1986