SECRETARY FOR JUSTICE v. NG WAI BING AND OTHERS

HCMP840/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDING 840 OF 2010

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BETWEEN:

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DECISION ON PENALTY

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1.  After a hearing on 7 and 8 September 2010 I found that 1^st and 2^nd respondents were in contempt of court in connection with events during the hearing of a criminal trial in the District Court under reference DCCC1280/2005. I further found that the conduct of 3^rd respondent did not amount to contempt. All three respondents returned before me on 16 December 2010, 1^st and 2^nd respondents for the purpose of determining penalty and 3^rd respondent on an application for costs.

THE FIRST AND SECOND RESPONDENTS

The conduct

2.  Although it is likely that both judgments will be read in conjunction with one another, it is apposite to summarise the main findings in regard to the respondents’ conduct.

3.  In 2004 and 2005 the police conducted an undercover investigation in Kowloon. As a result nine persons were charged with one count of conspiracy to manage a vice establishment whilst three of the accused faced other charges. The trial occupied approximately 150 court days. The 4^th accused in that trial, one CHEUNG Sai-kit, is the husband of 1^st respondent: he faced only the conspiracy charge. The 3^rd respondent is a law clerk and was the representative of the instructing solicitors acting on behalf of 4^th accused. He was present in court, instructing counsel, throughout the trial. The 1^st and 3^rd respondents, as well as 4^th accused, were retired police officers.

4.  It was 1^st respondent’s evidence, during a voir dire held by the judge to consider the issue of admissibility of recordings made in a witness consultation room adjacent to the courtroom, that she had heard the first prosecution witness in the trial talking to another police officer after they left the courtroom at the conclusion of the hearing one day towards the end of April 2007. She heard that other police officer, she said, say to the first prosecution witness that they should "nail" her husband, which she concluded meant that police witnesses may collude to implicate the accused, including her husband, or may not tell the truth.

5.  At the request of 1^st respondent the 2^nd respondent, a family friend, placed a recording device inside the consultation room at regular intervals commencing 7 May 2007. That device indiscriminately recorded conversations which occurred in the room. On 10 May 2007, three days after recording is said to have commenced, a conversation was recorded upon which the judge primarily relied when reaching his decision. Notwithstanding that, recording continued. There were 47 audio recordings made between 7 May and 7 September 2007.

6.  On 5 December 2007 counsel on fiat indicated that he intended to close the prosecution case. Counsel for the 4^th and 6^th accused applied to recall the first prosecution witness, asserting that a number of audio recordings had been provided by 1^st respondent which had been covertly obtained and which, it was said, recorded police officers discussing aspects of the evidence. This was some 128 days into the hearing and some five days short of seven months after the most relevant recording. This was the first indication given to the court that anything might be amiss.

7.  After holding the voir dire as to the provenance of the recordings, the  judge ruled their contents to be admissible in evidence although the accuracy of the transcripts remained an issue. When the prosecution case finally closed, a submission was made that there was no prima facie case for any of the accused to answer on all the charges. On 4 February 2008 the judge delivered a brief ruling allowing that application: each of the accused was acquitted.

8.  The judge allowed that application on two bases: first, the recordings made in the witness room showed that a prosecution witness or witnesses had discussed the evidence, and the course of the trial, whilst testifying; second, as a result of their testimony in the voir dire, the credibility of certain witnesses had been damaged to such an extent that he was not prepared to rely on them as witnesses in the general issue.

9.  I was satisfied that the applicant had shown that 1^st and 2^nd respondents were in contempt of court in two respects: first, that it generated a real risk of interference, as distinct from a remote possibility, so as to undermine public confidence in the administration of justice, constituting an interference with the proper administration of justice as a continuing process; secondly, that it had had an immediate and direct adverse effect on the proceedings in progress.

10.  I am prepared to accept that the 1^st respondent initially was motivated to start the recording as a result of overhearing the conversation implying that there would be a concerted effort to ensure her husband's conviction. I accept that in certain circumstances such a motive, if  well-founded, may reduce the contempt to one that is to be regarded as purely technical in nature and not worthy of pursuit or, if pursued, of commensurately lower punishment. As previously indicated, I also have a measure of understanding for the view which she expressed in evidence that if she had simply reported the conversation which she had overheard to the judge she may have been disbelieved or any further warning administered by the judge to witnesses may have proved to be ineffectual.

11.  However, even if that may have been her initial motivation, the fact that she was in possession of what she would have appreciated was damning evidence against the police within three days yet continued with the recording on over 40 more days over a four-month period and thereafter further concealed the product of the recordings until the last feasible moment, indicates clearly that her motivation had changed to one of securing and exploiting a tactical advantage so as to irretrievably frustrate the prosecution.

12.  I do not accept that, as a serving police officer of 27 years, in daily contact with two other former serving police officers, she would have been so naive as not to have appreciated the very real value of the recording of 10 May relative to the conversation she had overheard.

13.  Moreover, that she was aware of its significance clearly emerges from her own evidence during the voir dire which was to the effect that it had been her intention, at first, to only produce the single recording of 10 May 2007. Why other recordings were also produced is not relevant to her knowledge of its importance.

14.  I note, too, that she asserted in cross-examination that she had deliberately refrained from disclosing what she was doing to those instructing her husband's counsel for fear that she would be told to stop doing it. This was, in my judgment, a clear indicator of her knowledge of the wrongfulness of her conduct.

15.  I regard the fact that she had been a serving police officer as an aggravating feature as she could have been under no misapprehension of the potential effect on the outcome of the trial of the concealment of her deliberate and calculated conduct and of the recordings which flowed from it and the withholding of that evidence until the close of the prosecution case.

16.  Her assertion that all that she was doing throughout was attempting to secure evidence to avoid a miscarriage of justice is unworthy of  belief.

17.  Whilst there is nothing to suggest that the 2^nd respondent was motivated by anything other than friendship it is equally clear that he was a persistent and dedicated supporter of the conduct of 1^st respondent, actively and reliably bringing the recordings into existence. I do not accept that he was ignorant as to 1^st respondent's true purpose nor unaware of the effect she intended it to have on the proceedings. His conduct plainly shows that he aligned himself with that cause. I do acknowledge, however, that it appears that he did not listen in any detail to the recordings but merely checked each recording to ensure that it existed: to a large extent, he would not have been aware of their content.

Penalty

18.  This is a singularly grave instance of contempt of court, one which, insofar as I have been made aware, is unprecedented not only in Hong Kong but throughout common law jurisdictions. It may be, of course, that that is because previous instances have gone undetected - in itself a clear indicator of the insidious nature of the conduct.

19.  To condone the surreptitious recording of conversations within the immediate environs of a courtroom, in a room specifically provided for the use of witnesses, and the use of those recordings for whatever purpose the person making them may arbitrarily determine, is to erode public confidence in the very heart of the judicial system and to inculcate distrust in it.

20.  There plainly is a substantial risk that litigants and witnesses who are required to attend court will be deterred from attending if the perception exists that their consultations and conversations may be subject to regular or random eavesdropping and recording by a third-party, even though those consultations and conversations involve no misconduct on their part or even though they are not directly related to the proceedings in question.

21.  Moreover, it is far from fanciful to envisage a situation where information unrelated to the case before the court but of real interest or use to others may inadvertently be recorded but then utilised by or passed on to others.

22.  Because of the unique nature of this case only limited assistance is to be derived from penalties imposed in other matters. In  R v Owen [1976] 1 W.L.R. 840 the charge was one of embracery which the court felt would better have been dealt with by way of a charge of contempt of court.  The Court of Appeal said at 843G:

Those who do interfere with the administration of justice must expect to go to prison and any prison sentence should take immediate effect. We cannot envisage any other kind of sentence being appropriate unless the circumstances are wholly exceptional.

23.  This approach was approved in R v Montgomery [1955] 2 All E R 28 at 32j, a case which involved a witness refusing to be sworn and to testify. The court went on to say that:

... the circumstances of each case [are] all important...

... the principle matters affecting sentence are as follows: (a) the gravity of the offence being tried; (b) the effect upon the trial; ... (e) the scale of sentences in similar cases, albeit each case must turn on its facts; (f) the antecedents, personal circumstances and characteristics of the contemnor, e.g. whether the contemnor will be going to prison for the first time...; (g) whether or not a special deterrent is needed.

24.  In Secretary for Justice v The Oriental Press Group Ltd and Others [1998] 2 HKLRD 123 the contempt was twofold - a press campaign which was found to have had the effect of scandalising the court and a short-lived campaign of pursuing and harassing a Justice of Appeal. The court regarded a total of eight months imprisonment as the appropriate starting point which it reduced, for identified mitigating features, to four months.

25.  In Secretary for Justice v CHOY Bing-wing [2005] 4 HKC 416 the contempt took the form of scandalising the court with a single litigant mounting an ongoing campaign of abuse, which was described as "premeditated and deliberate", against various judges. A period of six months imprisonment was imposed.

26.  There are other examples of penalties imposed in respect of contempt of Court in this jurisdiction some of which have resulted in imprisonment but they are of passing relevance as they relate to breaches of an existing order of court rather than to the active contemptuous behaviour as demonstrated in The Oriental Press Group Ltd and CHOY Bing-wing.

27.  Without in any way detracting from the views expressed in regard to the severity of conduct in other matters, I judge that the conduct of the respondents before me is such as is likely to have greater adverse effect upon the public confidence in the administration of justice than any of the previous instances.

28.  I recognise that 2^nd respondent's role was subsidiary to that of 1^st respondent, particularly in that there is no evidence that he played any role in the making of the decision as to when to make the recordings known to the court: this should be reflected in sentence.

29.  In my judgment, as a matter of principle the only appropriate penalty is one of imprisonment. The starting points which I judge to be appropriate are nine months imprisonment in respect of 1^st respondent and six months imprisonment in respect of 2^nd respondent.

Other considerations

30.  Deterrence is important in the issue of penalty in contempt proceedings. It needs to be made abundantly clear that conduct of this nature will result in a robust reaction from the court. There were other avenues open to the respondents from the outset: they made a conscious decision not to follow them but to embark upon their own course. Others who may be tempted to emulate their actions need to be in no doubt that imprisonment will follow conviction.

31.  On the facts of this matter, it would be unrealistic to dismiss as being irrelevant to penalty that it was the fact that 1^st respondent apprehended her husband to be the victim of a potential injustice which, initially, caused her to embark upon the recording activities which ultimately demonstrated that those fears were well founded.

32.  It is also necessary to bear in mind that it is material produced by those very recordings upon which the applicant accepts the prosecution will rely in criminal proceedings pending in the District Court against two police officers, including the police officer who testified as the second prosecution witness: the charges are doing an act tending and intended to pervert the course of public justice and misconduct in public office.

33.  I am alive to the tension which appears to exist between imprisoning 1^st respondent whose fears of a miscarriage of justice involving a member of her family were proven to be correct whilst, at the same time, using the evidence which she and 2^nd respondent gathered in order to prosecute the very persons who generated her fears but that tension is, to a large extent, illusory when viewed against the ongoing nature and extent of the respondents’ conduct.

34.  The 1^st respondent, as one would expect of a former police officer, has no criminal convictions. The 2^nd respondent does have, but none that are in any way relevant to these proceedings and none in the last decade. I propose to treat him as being of clear record.

35.  The question to which I have given anxious consideration is whether these are factors which amount to mitigation justifying a reduction of sentence, as in The Oriental Press Group Ltd, or whether they are such as to constitute such truly exceptional circumstances as would justify suspending the term of imprisonment pursuant to Order 52, Rule 7(1).

36.  Taking into account, further, that this is the first reported instance of contempt of court in this form and that the consequences of any repetition of it are now made clear, I conclude that the circumstances permit of suspension.

Costs

37.  I turn to the outstanding issue of costs. The applicant seeks an order that 1^st and 2^nd respondents pay the costs of the proceedings against them and that they do so on an indemnity basis.

38.  The 1^st and 2^nd respondents vigorously opposed the application, unsuccessfully. I see no reason why costs should not follow the event.

39.  It is not axiomatic that an award of indemnity costs is made in proceedings of this nature: the decision involves the excise of a discretion in each instance. The current trend is for that discretion to be exercised in favour of the applicant for the reasons adumbrated by Rogers VP in LAU Yee Ching v WONG Tak Kwong CACV385/2005. Although I acknowledge that there was nothing immoderate in the conduct of the respondents' opposition to the proceedings which were factually novel - on the contrary, they made sensible concessions - and although these proceedings did not relate to the breach of an existing order of court, the proceedings were brought about and the costs of the action incurred for the public interest consequent upon the conduct of the respondents. In such circumstances I see no reason why the respondents should not bear the costs on an indemnity basis.

THE THIRD RESPONDENT

40.  The 3^rd respondent seeks an order that the applicant pay his costs incurred in opposing the application against him.

41.  In respect of the 3^rd respondent, I found that his conduct did not amount to contempt of court, based upon the way in which the complaint against him was framed within the terms of which I was bound. My findings in this regard appear at §§85 and 86 of the previous judgment.

42.  In my judgment, bearing in mind that he was effectively acting in the capacity of the solicitor on behalf of 1^st respondent’s husband, his acquiescence and active involvement in this matter was sufficient to justify the proceedings having been brought against him. Once again bearing in mind the public interest, it is appropriate that there be no order as to costs in respect of proceedings against or in favour of 3^rd respondent.

CONCLUSION

43.  Accordingly:

(a) the 1^st respondent is committed to jail for a period of nine months which is suspended for a period of 18 months on condition that she is not convicted of any other criminal offence committed during the period of suspension;

(b) the 2^nd respondent is committed to jail for a period of six months which is suspended for a period of 18 months on condition that he is not convicted of any other criminal offence committed during the period of suspension;

(c) the 1^st and 2^nd respondents are to pay, on an indemnity basis, the costs of the applicant in the proceedings against them, such costs to be taxed if not agreed; and

(d) there be no order as to costs in respect of 3^rd respondent.