HKSAR v. NG CHUN HIN AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 315
(Criminal)

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J U D G M E N T

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Mortimer V-P (giving the judgment of the Court) :

1. On 26th May 1997 these two applicants were convicted by Deputy Judge Toh of an offence of doing an act tending and intended to pervert the course of public justice, and an offence of trafficking in a small quantity of heroin. They were each sentenced to a total of 3 years imprisonment and apply for leave to appeal against their convictions.

2. These offences are said to have taken place on 10th October 1996. At that time the applicants were both police officers attached to a Police Tactical Unit. They had served respectively 11 1/2 and 9 1/2 years as police officers. They were of good character.

The facts

3. Wong Chun-hing, the victim of the first offence and the main prosecution witness, was a 58-year-old street-sleeper who had been a heroin addict for about thirty years. He had numerous previous convictions. At the time the victim was sleeping outside the Kowloon Government Offices in Nathan Road. During the night he was woken by the two applicants and another officer. They examined his wallet in which there was a charge sheet and a bail paper showing that he had to attend court within a few days. He was handed back his wallet and allowed to return to sleep.

4. Sometime later those three officers returned and woke him. The 1st applicant spoke to the victim and asked since he had an outstanding case would Wong, the victim, assist him and do one more for him. But it seemed that there were some passers-by which made it inconvenient to talk. So the victim was invited to follow the officers into Cliff Road. He did so. The officers, according to the victim, were reluctant to be seen with him. They went to Cliff Road and up some stairs. The 1st defendant spoke again "Since you will have an outstanding case in court, help me to do one more. Your outstanding case will be convicted and your sentence will be concurrent." When he spoke, the 2nd defendant was present. Initially it was suggested that the victim might steal from a vehicle. The victim was extremely frightened, but he was told not to be afraid because the judge would make the sentence concurrent.

5. The 2nd defendant also spoke, trying to persuade him to do "one more case". He said: "I won't treat you badly. If you commit the offence for me we could all have our benefit". At that time the victim asked what reward he would get. He was told that he would get $500 and some white powder - meaning of course heroin.

6. A little later, the 1st defendant gave Wong a $500 note and told him to rub the note between his palms. It was suggested at one time that was to ensure that there were no fingerprints left on it. The 2nd defendant took out some heroin and he was given the heroin. The victim was told to consume some because it could be seen that he was lacking in vitality. He later concealed the heroin and the money in the place where it was later recovered.

7. The plan was changed. Instead of stealing from a vehicle, it was suggested that he should steal by snatching. The victim was very concerned and frightened. There was a further incident. One of the applicants went away and returned with some white shoes for the victim to wear as they were more suitable for a snatch.

8. In fact a target was identified - a lady who was on her way to work. Signals were made for Wong to run up to the lady and take her handbag. When Wong was rushing past her, he touched the strap of her handbag and put his arms round her and said, "Miss, don't be afraid!" When he did that, the two officers moved in and arrested him. Wong said that he had committed the snatching in Shanghai Street and he was willing to give a statement. He was arrested and taken to the police station.

9. After he had made a statement a plainclothes officer took his fingerprints. The two applicants were not there at the time. It occurred to the fingerprint officer that Wong appeared so weak and trembling that the lady must have been stronger than him. He was asked how he managed to commit the offence. Consequent upon an enquiry that followed, these matters came to light. The $500 note and white powder were later recovered. Wong said that the officers had told him that they wanted him to pretend to commit this offence, so that they could arrest him and improve their promotion prospects.

At trial

10. Wong gave evidence. The applicants were defended by Ms A. Chan, a solicitor and Mr Egan of counsel. At the outset, the evidence of a 58-year-old street sleeper who had been a heroin addict for thirty years with many previous convictions seemed uncertain to result in convictions. But Wong's evidence impressed the judge as credible and cogent. There was certain circumstantial support for his evidence. In the result the judge was able to rely upon Wong's evidence to the extent that she convicted.

The applications

11. Mr Thomas Iu appears for the applicants on the application for leave to appeal against conviction. His first ground of appeal alleges that the verdict is unsafe and unsatisfactory because:

"(a) the applicants were not advised or properly advised by their legal representatives as to the effect of consequences of electing not to give evidence, alternatively, the respective wish of each applicant to give evidence was ignored by them;

(b) contrary to their instructions and without the consent of the applicants, legal representatives of the applicants refused and/or failed to call vital and material defence witnesses known and available at all material times, in support of the defence case or in contradiction of the prosecution case."

In summary there were four witnesses whom they say ought to have been called with the consequence that the applicants were deprived of having their cases fully and properly evaluated by the judge.

12. Mr Iu was at pains to point out that there was no suggestion that Mr Egan, who represented the applicants, had defended them in an incompetent manner; far short of "grossly incompetent" which is the usual test to be satisfied before this Court will consider interfering with a verdict on these grounds.

13. However, as the ground was that the verdicts were unsafe because of the way in which the defence was handled, we allowed evidence to be called "de bene esse" perhaps out of undue caution that the applicants' case should be fully ventilated. We heard evidence from both the applicants, from Ms Ada Chan, the solicitor who represented them at trial and from Mr Egan of counsel.

14. Each of the applicants said that their affirmations were true and then gave further evidence to add to them.

15. We mention some of the matters the 1st applicant dealt with. He said that Mr Egan had told him that he would win the case. The case for the prosecution would be sufficient for this purpose but the applicant said he disagreed.

"I told Mr Egan that I wanted to go into the witness box to state my defence. ... I was not content to go along with counsel's advice. During the trial I found he had no intention to call the witnesses we wanted him to call. So I asked him about it but he didn't give me a definite reply. He just said 'O.K., O.K.' when I raised the calling of the witnesses. I was not content with his response. I asked him about it more than once and he replied the same each time and I became a bit angry with him."

Referring to whether he should give evidence or not, he said:

"Counsel didn't tell me I could decide. He didn't tell me to the pros and cons. He just advised us not to give evidence. But I told him if I gave evidence, I would let the court know that PW1, that was Wong, was lying."

The 2nd applicant gave similar evidence. He said:

"I never agreed not to testify. I did tell counsel that I wanted to testify."

And later:

"I didn't testify because the discussion about the matter only took five minutes. He [counsel] told me we would win the case, but I told him I wanted to go to testify. I told him Wong was telling lies. But he [counsel] told me there was no point in wasting time on that. I was still considering whether to testify or not with D1 but then we only have 30 to 40 seconds discussion between myself, D1, Mr Egan and a representative from the solicitors."

The "representative" was in fact Mr Egan's pupil. A matter to which we will refer.

16. The 2nd applicant continued that there was a communication problem with Mr Egan. So interpretation was through the representative of the solicitor:

"The four witnesses were not called, I didn't agree. I remember asking Mr Egan two or three times whether the witnesses will be called. He just said O.K. or ignored me and walked away. After Sergeant Ma had given evidence of character, there was a discussion about calling other defence witnesses. I asked Mr Egan about that. His response was just to ignore me."

They sought to make out a case against counsel that he had not advised them properly about the pros and cons of whether to give evidence, had not allowed them to decide whether or not to give evidence themselves, and when they wanted his advice or to give him instructions, he had put them off or ignored them.

The grounds of appeal

17. Each of the applicants filed their own grounds of appeal on 3rd June 1997 within time and shortly after the conviction on 26th May. Each said in answer to Mr Wong, who appeared for the prosecution, that he was angry with counsel's behaviour, but neither mentioned anything about this in his notice of appeal. The explanation which each advanced, and which we do not accept, was that a senior officer who was also a fellow prisoner had advised them against putting anything in about those matters.

18. The witnesses, whom the applicants say they wanted calling, were two police constables who had made statements of having seen the 2nd applicant during the night on which the offence took place. A police sergeant who was expected by them to testify about the patrols on the night of the offence, and Lau Ming, who was the landlord of Wong, was going to speak about his shoes.

The solicitor's evidence

19. We now turn to Ms Ada Chan, the solicitor. She gave evidence that she received the statements of those witnesses on the basis of unused material from the prosecution and provided them to counsel. She had an initial conference with the two applicants. Counsel was not present, but thereafter matters were handed over to counsel. She only saw the applicants after that from time to time during the trial and briefly before or after conferences. At no time, she said:

"Did I or the applicants suggest that the two police constables should be called or that they had any relevant evidence to give,"

and she received no instructions to call them, nor did she receive any complaints either before or after the trial of Mr Egan's conduct of the trial.

Counsel's evidence

20. Mr Egan, counsel at trial, also gave evidence. He was an impressive witness even though he was asked to recall events in some detail which took place some time ago. Significantly he had a pupil at the time, an ex-Chief Superintendent of Police and a fluent Cantonese speaker whom both applicants recognised because of his previous appointment. When the two applicants gave evidence, neither of them said anything about Mr Egan's pupil.

21. The pupil kept a diary. From this Mr Egan was able to refresh his memory and say that during the case, he constantly discussed the position with the two applicants when the opportunity arose. Especially he discussed with them, as one would expect, how the case was going and whether the applicants should give evidence.

22. The final decision on whether evidence should be given by them was deferred until after the Deputy Judge's ruling on "no case". That took place one morning, as was recorded in the diary, at 9:40 a.m. There was then a final consultation between 9:50 a.m. and 10:10 a.m. That consultation was held to discuss and to decide whether the applicants should give evidence.

23. Mr Egan says that he pointed out the strength and weaknesses but he thought - as well he might - that they had a good chance of success. All possibilities were considered. He pointed out to them that the prosecution counsel had been a police officer with over ten years' experience, that she was well versed in police practice. No doubt that was a matter that they would have to bear in mind when making the decision. Mr Egan himself had the advantage of the ex-Chief Superintendent, his pupil, who was also able to provide some insight into the circumstances, the evidence and the witnesses. Mr Egan said that although he advised the applicants against giving evidence, it was in the end their decision. They accepted his advice.

24. As to defence witnesses, a character witness was called for the defence. That was Sergeant Ma. The last two witnesses about which complaint is made in the notice of appeal - Sgt 4083 and the potential witness Lau Ming - were on standby. During a discussion with Mr Egan, it was decided that those two would not be called. We accept that evidence. So far as these two witnesses are concerned, that is an end of the matter. Counsel assessed the position at trial and gave advice which was accepted.

25. Mr Egan said that there was never any question of an alibi being raised by the applicants. He said he had a "Battle Plan" from which he was able to refresh his memory. In that "Battle Plan", there was no mention of the two police officer witnesses at all. He said that he could rule out any question of those statements being raised by the applicants or of him receiving any instructions from the applicants to call them.

The evidence assessed

26. Now on the evidence that we have heard, where does the truth lie? We are quite satisfied that the applicants received proper and appropriate advice from Mr Egan on whether or not to give evidence. On his advice, and no doubt bearing in mind the possible dangers, they chose, and perhaps wisely, not to give evidence.

27. Similarly we are satisfied that no instructions were given by the applicants about calling the two police constables. Indeed, we are satisfied that they never raised those two witnesses with either the solicitor or with counsel.

28. We are satisfied that the applicants have come before this Court to tell a pack of lies, about the advice that they were given and the instructions that they gave counsel. Through another police officer, they had especially requested that Mr Egan should represent them. They were excellently advised by him. It was indeed wicked to bring him here and to make false allegations against him. The first he knew of any complaint that was made against him was early in 1998, at least eight months after the event. Yet Mr Egan was so concerned about the conviction that immediately afterwards he went to discuss an appeal with the applicants. He personally drafted the notice of appeal and the grounds of appeal, which are before the Court, are his notice in substance save the last ground which sets out the added allegations against him. This ground of appeal is not arguable. The application for leave to argue it fails.

The two statements

29. There is one matter we must deal with before we leave this part of the application. We deal with it out of abundance of caution. Mr Egan gave evidence that he has no recollection of the two police statements at all. He cannot understand why there is no reference to them in his brief or in his "Battle Plan". Consequently he has some doubts whether he ever received the statements from the solicitors. But in the end this is not a matter which we need resolve, or indeed that we are able to resolve absolutely. The ground of appeal has failed. We now look at this point: What was, if any, the value of the statements?

30. First, the statement of LI Tak-lap, that was PC 45559. In the statement which he made on 18th October 1996 and which he volunteered after the complaint made against the applicants, he said simply this:

"When I began my tea break [which he had explained took place from 4:00 a.m. to 5:00 a.m. on 10th October, the night of the offence] I saw PC 47269, [the 2nd applicant] outside the canteen of Yaumati Police Station. He just came out of the games room but I did not talk to him. I went into the canteen alone."

That was eight days after the relevant date. He gave no circumstantial detail and no indication why he should remember this particular night or this particular incident. He made a further statement on 22nd October 1996 when he was asked the question:

"Q: Are you sure that you saw the 2nd applicant outside the canteen of Yaumati Police Station during your tea break on 10.10.96?

A: I am of the impression it seemed that I did see him on that day but I am not hundred percent certain."

We need consider this point no further. Whether the statements were ever considered by counsel we do not know, but if they had been considered, it is highly likely that they would have been put immediately out of his mind as not being of any value in the case.

31. The 2nd witness also volunteered his statement on 22nd October, some 12 days later. Again he was on his tea hour between 3:00 a.m. and 4:00 a.m. and he said this:

"Some time between 0320 and those 0330 hours on that day I visited the games room intending to play video games. I saw PC 47269 playing games there. I did not speak to him. I did not notice if any people stood by him either. After having a look of PC47269, I did not want to play games but rest and left the games room."

The witness does not give any circumstantial detail nor does he at any time suggest why he should remember this rather mundane event 12 days later.

32. Although the applicants suggest that these statements provide them with an alibi, they do no such thing. Assuming that the witnesses had given evidence exactly according to the statements, it would only have been an indication that Wong's estimate of time was wrong. He was not able to give any precise time, only that he thought he had been woken and then he committed the offence about an hour later. Considering that the so-called snatch took place at 4:50 a.m., it is unlikely that Wong was accurate but the matter was never seriously investigated at trial. There is no doubt in our minds, having read the Deputy Judge's reasons, this statement and any evidence following, it would have been so peripheral that it could have made no difference to the result. It is likely that if Mr Egan had seen the statement, he would have put it out of his mind as being peripheral to the real issue in the case, which was whether Wong told the truth about the events at 4:50 a.m. in the morning.

33. Having said that, there is nothing which leaves us to doubt the safety of the conviction on this basis.

The first ground

34. We turn now to the other grounds of appeal which we can deal with quite briefly. The first ground of appeal can be summarised in this way. That the facts alleged and proved do not amount to the offence charged. Mr Iu has undertaken considerable research into the various factual bases leading to conviction on this offence. There were submissions on the matter before the judge. But with respect, it is necessary simply to go to principle. The essential ingredients of this offence can be found in many reported cases on different factual bases, but the principles are set out in the 1998 edition of Archbold at para. 28 (1) which reads:

"It is a misdemeanour common law to pervert the course of public justice, R v Vreones [1891] 1 QB 360; R v Andrews [1973] QB 422, CA. The offence is committed where a person or persons

(a) acts or embarks upon a course of conduct;

(b) which has a tendency to;

(c) is intended to pervert;

(d) the course of public justice: R v Vreones, ante.

A positive act is required. Inaction, for example, failing to respond to a summons, is insufficient to constitute the offence: R v Headley [1995] CrimLR 757, CA."

35. The principle is clear. What about the facts of this case? The facts alleged were that the two applicants pressurised Wong to pretend to steal or rob the lady's bag, then to confess to that charade of a stealing with a view to Wong being prosecuted for the offence. Wong was then to go before the court to plead guilty to an offence which he had not committed - there was no intent here to permanently deprived the lady of her handbag - and then to be convicted. The police officers suggested that this false case and the real one for which Wong was to appear, should be heard together and that he should be then sentenced for the non-offence, concurrently with the real offence. It was contemplated throughout that these activities would end in court and that the court should be deceived as to the commission of this offence. That is enough for us to say that this does amount to an intent to pervert the course of justice. It is true that this is not quite the same basis as that on which the deputy judge found the case proved. She limited herself to the later acts but this is not a material matter in this appeal. The first ground of appeal is not arguable and we reject it.

The second ground

36. The second ground alleges that the judge was in error in law in finding that the arrest by the officer was a false arrest. It is suggested that the arrest was a lawful and proper arrest following a theft. We can deal with that simply by saying that the submission is wrong. No theft was ever contemplated, if Wong's evidence is accepted.

The remaining grounds

37. Finally, grounds 3 to 6 all relate to the judge's assessment of the witnesses and the standard of proof required. It is true to say that the deputy judge does not refer in her Reasons for Verdict to the requisite standard of proof, but here experienced counsel was sitting as a professional deputy judge, it is not necessary for this trite law to be articulated by her in the Reasons for Verdict unless of course there is some indication elsewhere in her reasons that she was applying the wrong standard. There is none. As to the other matters, they all relate to the judge's assessment of the witnesses which was entirely a matter for her. Nowhere in her assessment can it be said that she was in error or that she applied the wrong principles.

38. In those circumstances, this application for leave to appeal is refused.

The sentence

39. There is one further point we would mention. This offence was one of great seriousness. It is extremely wicked to pressurise someone into committing an offence. The sentence of 3 years is in the circumstances far too lenient. But this is not a matter before us.

Costs

40. This is an application by the prosecution for costs under s.13 of the Costs in Criminal Cases Ordinance, Cap. 492. The relevant parts of s.13 are:

"Where a defendant unsuccessfully -

...

(c) applies to the Court of Appeal for leave to appeal against [his conviction]

and ... the Court of Appeal is satisfied that ... the application ...is or was without merit, ... the Court ... may order that costs be awarded to the prosecutor."

although costs by s.14 are recoverable if awarded as a civil debt.

41. Mr Iu, who appears on behalf of the applicants, makes the point that in the affidavit of Mr Egan, there is no mention of the particular statements. That was one of the central parts of the application. That is correct. We do not, for a moment, place any blame for pursuing this matter on those who have given advice to the two applicants. The unmeritorious nature of this application stems not from counsel or solicitors who are representing the applicants but from the evidence that the applicants themselves gave. We have already expressed our views about that evidence, to say that it is without merit puts it at its lowest.

42. In those circumstances, the prosecution are entitled to an award. Although we would have sympathy in making an award made against a person who is impoverished, that is not a matter which it is relevant to take into account, especially as costs are recoverable not by any penal sanction but only as a civil debt.

43. In those circumstances, we make the appropriate order under s.13 that the costs of the application be awarded to the prosecutor.