KWAN FUNG KAM v. ATTORNEY GENERAL

[It is a contempt to put pressure on a witness not to give evidence; but not merely to advise him not to do so.]

1987 No. A4468

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-------------------

-----------------------

J U D G M E N T

-----------------------

1. This is an interlocutory application in a personal injuries action. The plaintiff was very seriously injured when a person suspected by the police of robbery fell or jumped from a window in an attempt to escape their attentions. The plaintiff says the accident was caused by the negligence of the officers involved and has sued the defendant as representing the Commissioner of Police. The plaintiff has been supplied with statements made by the officers. The Director of Legal Aid, who represents the plaintiff, is not content with this and wants to interview the officers. The officers have been advised by someone in the Attorney General's Department not to make themselves available for such interviews, and not to make statements to the Director of Legal Aid. Hence this application, said to be for directions, and expressed to be made by the plaintiff under 0.25, r.8(3) of the Rules of the Supreme Court.

2. I heard the argument in Chambers; but it has been suggested to me that the matter is one of general public importance and I have been asked to give this judgment in open court, which I now do.

3. The principles are clear. I take them from the judgments of Mr Justice Kay in Rowden v. The Universities Co-operative Association Limited, 30th September 1881, reported in the Law Times Journal for 8th October 1981 at p. 373 and Lord Denning M.R. in Harmony Shipping Company S.A. v. Saudi Europe Line Limited [1979]1 W.L.R. 1380.

4. In the former case, the plaintiff moved the Court to restrain the defendants from selling goods except to customers in the ordinary course of business, and the motion was ordered to stand until the trial of the action, upon an undertaking in the terms of the Notice of Motion being given on behalf of the defendants. It then appeared that one Patman, an employee of the defendants who had given evidence by affidavit in support of the motion, had since received from the defendants' general manager of the defendants a letter to the effect that it had come to his knowledge that Patman had sworn an affidavit against the defendants (his employer) and that he (the general manager) was compelled at once to suspend Patman from his, duties pending the decision of the directors; and the general manager begged Patrnan to leave the premises at once saying that he would communicate with him in a few days. The general manager also told Patman that in consequence of his affidavit, Patman's son, who was also an employee in the establishment, would be dismissed. It was stated that the other employees were afraid to give evidence for fear of dismissal, and the plaintiff, under these circumstances moved the Court for a committal of the general manager to prison for contempt of court.

5. In support of the motion, it was submitted that the letter and conduct of the general manager constituted a clear case of interference with the course of justice. On behalf of the defendants, it was contended that the dismissal of a servant could not be interfered with by the Court. The defendants were within their legal rights. No case could be shown of the committal of a person for contempt of court where the act imputed to that person was in itself a legal one.

6. Mr Justice Kay said that, notwithstanding the ingenuity of the arguments addressed to him, he was of the opinion that the illegality of the act done or threatened was not an element in a case of contempt. All that had to be considered in these cases was - did the act complained of interfere with the course of justice, or, as here, did it interfere with the freedom of a witness's evidence? On his part he could not conceive a grosser offence against a court of justice than to endeavour to exercise a power, legal or illegal, in order to punish a witness for giving evidence, or to intimidate a witness from giving evidence, or to induce him to pervert evidence. A gross and flagrant contempt had been perpetrated, and His Lordship would not hesitate to commit this gentleman to prison for such an endeavour to obstruct the course of justice, unless an undertaking were given by him to withdraw the suspension of Patman, and not to discharge or suspend or otherwise injure any officer or servant of the defendants, either because he had given or because he intended to give evidence in the action. The judge ordered the costs of the motion to be paid by the defendants.

7. Not surprisingly, the undertaking was given.

8. In the latter case, the Harmony Shipping case, Lord Denning M.R. said that the law was as plain as could be. He said (at pp. 1384, 1385):-

"There is no property in a witness. The reason is because the court has a right to every man's evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena. That was laid down by the Law Society in 1944 and published in the 'Short Guide to Professional Conduct and Etiquette.' It was affirmed and approved in 1963 by the then Lord Chief Justice and the judges and republished in The Law Society's Gazette for February 1963. It says :-

"……the Council have always held the view that there is no property in a witness and that so long as there is no question of tampering with the evidence of witnesses it is open to a solicitor for either party to civil or criminal proceedings to interview and take a statement from any witness or prospective witness at any stage of the proceedings, whether or not that witness has been interviewed or called as a witness by the other party.'

That principle is established in the case of a witness of facts for the plain, simple reason that the primary duty of the court is to ascertain the truth by the best evidence available. Any witness who has seen the facts or who knows the facts can be compelled to assist the court and should assist the court by giving that evidence."

9. In my judgment, the Director of Legal Aid was perfectly entitled to ask the police officers concerned to attend on him and make statements to him about the accident. Equally, the officers were perfectly entitled to decline to do so. (It may be that they will not be entitled to disobey subpoenas served on them; but they may be entitled to apply to have any such subpoenas set aside and since that matter is not before me I say no more about it.)

10. In these circumstances, I can see no objection to the Attorney General, in any capacity advising the officers of the fact that, as I have said, they are entitled to decline to attend any interview with the Director of Legal Aid and to decline to make any statement to him. Further, I see no objection to the Attorney General advising them not to make or that they would be well advised not to make, any statement to the Director of Legal Aid. But, if the Attorney-General goes, or has gone, further (if, say, he has suggested to the Commissioner of Police, or to the officers concerned, that it would be improper for those officers to make statements to the Director of Legal Aid, or that doing so might result in disciplinary measures against the officers, I would have considered it at least arguable that that was a contempt. It is I hope unthinkable that the Attorney General personally would be guilty of a contempt. But, reluctant though I am to say it, I suppose it is not impossible that someone in his Chambers might have made such an error. If so, he or she would be personally answerable to the Court for it. However, this is not an application for relief against any such person based on any such contempt, and I say no more about the point.

11. I should however mention that an attempt was made in the argument before me on behalf of the Attorney General to suggest that the police officers should be treated by the Court as the "clients" of the Attorney General and that, in those circumstances, there was some difference between them and any other witnesses. That is all nonsense. I do not accept that the police officers were in any sense "clients" of the Attorney General; nor do I accept that, even if they were, the Attorney General would have been justified in giving them erroneous advice (if he had done so) about their rights and duties concerning their evidence. In civil litigation, the modern rule (with very few exceptions) is that all persons are compellable to give evidence. Any sort of pressure on them, including erroneous advice, is liable to be treated as a contempt. And when I say all persons, I mean it. Even a defendant, let alone his employees, may be compelled to testify on behalf of the plaintiff see Cross on Evidence, 6th edition (1985), at p. 189. Of course, a defendant's solicitor is entitled to advise the defendant that he (the defendant) is under no obligation whatever to attend any interview with the plaintiff's solicitor; and that he is under no obligation whatever to make any sort of statement to the plaintiff's solicitor; and indeed would be well advised not to do so. The solicitor for a defendant may perfectly properly advise the defendant, and his employees, that their only obligation is to answer to a subpoena.

12. But if, in the present case, anyone has been so ignorant, or so stupid, as to suggest to the Commissioner of Police, or to any of the police officers involved, that it is in some way improper for them to make statements to the Director of Legal Aid, that is a different matter. In my opinion, it is at least arguable, as I have said, that such conduct would constitute contempt.

13. I will only add this; the Court will always preserve the freedom and integrity of witnesses and will not allow them to be intimidated in any way either before the trial, pending it, or after it: see Moore v. Clerk of Assize [1972]1 All E.R. 58, per Lord Denning M.R. at p. 59. That, in my judgment, says it all.

14. However, the present application for directions under 0.25, r. 8(3) is misconceived. The point apparently at issue, if it is to be tested at all, must be tested in an application by the plaintiff to commit for contempt any person (be he the Attorney General, or someone else in his department), who is alleged to have acted in breach of the principles to which I have drawn attention and so to have committed a contempt. Since the present application is misconceived, I shall simply dismiss it.