Mandy Chui v Hksar

CourtCourt of Final Appeal (Hong Kong)
Judgment Date28 June 2010
Citation(2010) 13 HKCFAR 314
Judgement NumberFACC4/2009
FACC3/2009 HKSAR v. KEVIN EGAN

FACC Nos 3, 4 and 5 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2009 (CRIMINAL)

(ON APPEAL FROM CACC NO. 248 OF 2006)

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Between
HONG KONG SPECIAL ADMINISTRATIVE REGION Appellant
and
KEVIN EGAN Respondent

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FINAL APPEAL NO. 4 OF 2009 (CRIMINAL)

(ON APPEAL FROM CACC NO. 248 OF 2006)

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Between
MANDY CHUI Appellant
and
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

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FINAL APPEAL NO. 5 OF 2009 (CRIMINAL)

(ON APPEAL FROM CACC NO. 248 OF 2006)

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Between
ANDREW LAM Appellant
and
HONG KONG SPECIAL ADMINISTRATIVE REGION Respondent

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Court : Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Mr Justice Gleeson NPJ

Dates of Hearing: 24 – 28 May, 31 May and 1 June 2010

Date of Judgment: 28 June 2010

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J U D G M E N T

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Mr Justice Bokhary PJ :

1. Four charges are involved in these appeals which come to us via a trial in the District Court (Judge Fung) and appeals therefrom to the Court of Appeal (Ma CJHC, Tang VP and Wright J). Charge 1 is of conspiracy to pervert the course of public justice. Charge 2 is of attempted perjury. Charges 4 and 5 are each of attempting to disclose information about the identity of a participant in the witness protection programme. Three appellants are before us. They are Ms Mandy Chui, Mr Andrew Lam and the prosecution. Ms Chui was convicted by the trial judge on Charges 1 and 2. Her convictions were unanimously affirmed by the Court of Appeal. She now appeals to us against those convictions. Mr Andrew Lam was convicted by the trial judge on Charge 1. It was by a majority (Tang VP dissenting) that the Court of Appeal affirmed his conviction. He now appeals to us against his conviction. Mr Kevin Egan was convicted by the trial judge on Charges 4 and 5. By a majority (Wright J dissenting) the Court of Appeal quashed Mr Egan’s convictions. The prosecution now appeals to us against the quashing of Mr Egan’s convictions.

2. For the reasons given by Mr Justice Ribeiro PJ with whose judgment I agree, I would quash Ms Chui and Mr Andrew Lam’s conviction on Charge 1. And for the reasons given by the Mr Justice Gleeson NPJ with whose judgment I agree, I would dismiss the prosecution’s appeal against the Court of Appeal’s judgment quashing Mr Egan’s convictions on Charges 4 and 5. I associate myself with Mr Justice Litton NPJ’s observations as to the nature of the fact-finding process. A trial court : notes the common ground; identifies the issues; abstains from making assumptions; appreciates that the difference between a ruling on a submission of no case to answer and a verdict is more than merely a difference in the test to be applied; has due regard to such inherent probabilities as may appear; makes proper use of its advantage of receiving the testimony of witnesses at first-hand; evaluates the whole of the evidence; makes its findings of fact; and then states them. These are matters of substance, and not of form. Appellate courts intervene for errors of substance, and not for inadequacies of expression. What will be regarded as a flaw in the fact-finding process must depend on all the circumstances. So must whether any such flaw will be regarded as fatal to a finding of fact.

3. What remains for me to deal with is Ms Chui’s conviction on Charge 2. Her appeal against that conviction raises an issue as to materiality. Ultimately its result depends on whether the conviction was inevitable. Ms Chui had attempted to make an affirmation in support of habeas corpus proceedings to have Ms Becky Wong brought before the High Court. Those proceedings were brought on the basis that Ms Wong was being detained against her will by the Independent Commission Against Corruption (“the ICAC”).

4. It should be explained at once why Ms Chui, who was charged with perjury, was convicted only of attempted perjury. This was because she had acted through an interpreter for the purpose of making an affirmation, and the interpreter was neither sworn nor affirmed.

5. Shortly stated, the prosecution’s case against Ms Chui for attempted perjury was as follows. Ms Wong was under the protection of the ICAC as a person being assessed or processed for inclusion in the witness protection programme. She was not being detained against her will. Ms Chui knew that Ms Wong was not being detained against her will. Nevertheless Ms Chui made or attempted to make an affirmation containing statements which were intended to suggest – and which if true would suggest – that Ms Wong was being detained against her will. Ms Chui did so knowing that those statements were false or not believing that they were true. And she had omitted a material fact, omitting it in order to give the impression that she believed that Ms Wong was being detained against her will. The overall object of the exercise was to dissuade Ms Wong from being a witness against Ms Chui’s gentleman friend, Mr Derek Wong, who had been arrested by the ICAC. Ms Wong was Mr Derek Wong’s secretary. (Mr Derek Wong, I should mention for the sake of completeness, was convicted on Charge 1 and then absconded while on bail pending appeal to the Court of Appeal.)

6. As pleaded in the perjury charge, the material misstatements which Ms Chui was accused of having attempted to make were :

(a) that Ms Wong was a 30% shareholder and director of Ever Brilliant Consultants Ltd and was Ms Chui’s business partner;

(b) that in two telephone calls made by Ms Wong to Ms Chui, Ms Wong had spoken in a faint and trembling voice and had said that the ICAC had snatched her mobile telephone from her and that she did not know where she was; and

(c) that Ms Chui was worried about Ms Wong’s well-being because Ms Wong had no close family members in Hong Kong.

7. Reliance on item (a) above was abandoned by the prosecution at the trial. The trial judge said in his Reasons for Verdict that he would ignore so much of item (b) above as referred to the snatching of Ms Wong’s mobile telephone. Nor did he place any reliance on so much of that item as referred to Ms Wong having spoken in a faint and trembling voice. As to that, the trial judge noted Ms Wong’s evidence that she had spoken in a soft rather than in a trembling voice but that she did not think that Ms Chui was lying when saying that she thought that her ie Ms Wong’s voice was trembling. That last piece of evidence came about when Ms Wong was asked by Ms Chui’s counsel in cross-examination whether she thought that Ms Chui was lying when she said that her voice was trembling. Ms Wong answered :

“Telling lies? I don’t think she was telling lies. Probably she misunderstood the situation”.

8. The trial judge found that the attempted affirmation contained a number of material misstatements and one material omission. That appears from the part of his Reasons for Verdict in which he said this :

“Having accepted the evidence of the prosecution witnesses, I find that [Ms Chui] knew it was false or did not believe it was true when she said [Ms Wong] did not know where she was, she worried about the well-being of [Ms Wong] because she had no close family members in Hong Kong, and she omitted to mention [Ms Wong] had said she was safe and sound which made her alleged belief that [Ms Wong] was detained unlawfully untrue. The fact [Ms 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.”

9. By virtue of s.43 of the Crimes Ordinance, Cap.200, no one can be convicted of perjury “solely upon the evidence of one witness as to the falsity of any statement alleged to be false”. The trial judge, as we have just seen, convicted Ms Chui of perjury on the basis of a number of statements and one omission. As to the falsity of that omission, there was only the evidence of one witness, namely Ms Wong. The same is true of those statements except for the one that Ms Wong had no close family members in Hong Kong. As to that one, the trial judge noted that “[Ms Wong’s] father, mother and elder sister Ada Wong all said they were living in Hong Kong and had regular contacts with [Ms Wong].”

10. So of all the findings of falsity made by the trial judge and affirmed by the Court of Appeal, only one is not caught by s.43. It is the finding of falsity made against the statement that Ms Wong had no close family members in Hong Kong.

11. Was that statement material? Counsel for Ms Chui submits that it was not material. The trial judge appears to have considered it material, although he does not explain why. Mr Justice Tang VP, with whom Ma CJHC agreed on this part of the case, explained why he considered it material. He said :

“Although I agree with [counsel for Ms Chui] that the absence of close family members in Hong Kong was not a condition for [Ms Chui’s] locus standi, it is common sense that if [Ms Wong] did have close family members in Hong Kong, they would be expected to come forward if [Ms Wong] had been detained against her will. If [Ms Wong] was being detained against her will, the court would want to know why her family was not making or supporting the application.”

I think that the statement was material even if close to the line that separates what was material from what was immaterial.

12. Quite simply, the effect of s.43 is that any falsity on which a conviction for perjury or attempted perjury is based must be proved by more than the evidence of one witness. It is of course not the law that there can be no conviction...

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