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Secretary For Justice v Kevin Barry Egan

Judgment Cited authorities 28 Cited in Precedent Map Related
Vincent
Judgment Date12 February 2009
Subject MatterCriminal Appeal
Judgement NumberCACC140/2007
CourtCourt of Appeal (Hong Kong)
CACC000248/2006 HKSAR v. KANJANAPAS CHONG KWONG DEREK AND OTHERS

CACC 248/2006
CACC 140/2007
CAAR 8/2006

CACC 248/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 248 OF 2006

(ON APPEAL FROM DCCC NO. 298 OF 2005)

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

BETWEEN

HKSAR Respondent
and
KANJANAPAS, CHONG KWONG DEREK, also known as WONG CHONG KWONG (黃創光) 1st Applicant
CHUI MAN-SI (徐敏偲), also known as 2nd Applicant
MANDY CHUI
LAM PING-CHEUNG (林炳昌), also known as ANDREW LAM 3rd Applicant
KEVIN BARRY EGAN (艾勤賢) 4th Applicant

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

CACC 140/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 140 OF 2007

(ON APPEAL FROM DCCC NO. 298 OF 2005)

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

BETWEEN

SECRETARY FOR JUSTICE Applicant
and
KEVIN BARRY EGAN (艾勤賢) Respondent

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

CAAR 8/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 8 OF 2006

(ON APPEAL FROM DCCC NO. 298 OF 2005)

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

BETWEEN

SECRETARY FOR JUSTICE Applicant
and
KANJANAPAS, CHONG KWONG DEREK, also known as WONG CHONG KWONG (黃創光) Respondent
LAM PING CHEUNG (林炳昌), also known as ANDREW LAM Respondent

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

Before: Hon Ma CJHC, Tang VP & Wright J in Court

Date of Hearing: 2-4, 7-10 July 2008

Date of Handing Down Judgment: 12 February 2009

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

J U D G M E N T

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

TABLE OF CONTENTS

Paragraphs in Judgment
Hon Ma CJHC 1
Hon Tang VP 2 – 242
Introduction 2 – 7
The charges 8
The trial 9 – 15
Background 16 – 71
Saturday, 10 July 2004 17 – 20
Sunday, 11 July 2004 21 – 26
Monday, 12 July 2004 27 – 34
Tuesday, 13 July 2004 35 – 47
Wednesday, 14 July 2004 48 – 60
Habeas Corpus Proceedings 61 – 71
Wednesday, 14 July 2004 61 – 62
Thursday, 15 July 2004 62 – 68
Friday, 16 July 2004 69 – 71
The 1st charge (conspiracy to pervert the course of justice) 72 – 105
No property in a witness 75 – 90
Witness Protection Ordinance, Cap. 564 91 – 95
Falsity or sham 96 – 105
Egan, the 4th applicant 106 – 167
The 1st charge 106 – 124
Charges 4 and 5 125 – 167
Belief 125 – 135
The evidence 136 – 167
Lam, the 3rd applicant 168 – 208
Did the 3rd applicant know of the sham? 169 – 170
Nattrass 171
The 1st incriminating statement 172 – 176
The 2nd incriminating statement 177 – 180
The 3rd incriminating statement 181
ICAC letter to Massie 182 – 184
Conclusion on the incriminating statements 185
Reliability of Nattrass 186 – 196
Other adverse inferences 197 – 208
Mandy, the 2nd applicant 209 – 240
Destruction of the telephone intercepts 219 – 231
Presumption or inference as a remedy 232
Conclusion on Charge 1 233
Charge 2 : Perjury 234 – 240
Derek, the 1st applicant 241
Conclusion 242
Hon Ma CJHC 243 – 291
The adequacy of Charge 1 as drafted 245 – 260
The 3rd applicant 261 – 291
Hon Wright J 292 – 481
CACC248/2006: the first applicant, Derek 297 – 313
CACC248/2006: the second applicant, Mandy 314 – 342
Charge 1 315 – 339
Charge 2 340 – 342
CACC248/2006: the third applicant, Lam 343 – 397
Conflict of interest 347 – 350
Mr Nattrass’s evidence 351 – 365
The Grissini lunch (Ground 15) 366
Other grounds of appeal 369 – 397
CACC248/2006: the fourth applicant, and
CAAR8/2006: respondent, Egan		 398 – 481
Charge 1 (CAAR8/2006) 401 – 452
CACC248/2006: charges 4 and 5 453 – 481
Hon Ma CJHC 482 – 483

Hon Ma CJHC

1. Tang VP will give the first judgment.

Hon Tang VP :

Introduction

2. The events which led to these applications for leave to appeal took place between Friday, 9 July 2004 and Friday, 16 July 2004.

3. The 1st applicant (“Derek”) was the chairman of Semtech International Holdings Limited (“Semtech”). He was the 1st defendant at trial. Miss Wong Pui-sze, Becky (“Becky”) was his secretary. She was PW1 at trial.

4. On 9 July 2004, 9 persons including Derek and Becky were arrested by the ICAC. William Lau, the manager and controller of Semtech was also arrested.

5. The 2nd applicant (“Mandy”), the 2nd defendant at trial, was the lover of Derek, and Becky was like a sister to her. Mandy was a shareholder and director of Ever Brilliant Consultants Ltd (“Ever Brilliant”), which operated a beauty salon called Eden. The capital was provided by Derek. Becky was given 30% of the share capital in Ever Brilliant.

6. The 3rd applicant Andrew Lam, (“Lam”), the 3rd defendant at trial, is a solicitor and a partner of Messrs Andrew Lam & Company. He is an experienced criminal lawyer. Lam was instructed on 13 July 2004 by Derek to act for him in the Semtech investigation.

7. The 4th applicant (“Egan”), the 4th defendant at trial, is an experienced barrister specialising in criminal work. He was instructed by Messrs Massie & Clement, who acted as solicitors for Mandy in her attempt to gain access to Becky which culminated in an application by Mandy for a writ of habeas corpus for Becky.

The charges

8. The applicants were charged with the following offences:

“1st Charge (against D1 to D4)

Statement of Offence: Conspiracy to pervert the course of public justice, contrary to Common Law and sections 159A and 159C of Crimes Ordinance, Cap. 200.

Particulars of Offence: Kanjanapas Chong-kwong, Derek also known as Wong Chong-kwong, Chui Man-si also known as Mandy Chui, Lam Ping-cheung also known as Andrew Lam, and Kevin Barry Egan, between the 11th day of July 2004 and the 17th day of July 2004, in Hong Kong, knowing that Wong Chong-kwong and others had been arrested by the Independent Commission Against Corruption (ICAC), that there was an ongoing investigation by the ICAC of Wong Chong-kwong and that criminal proceedings arising from the investigation were possible, conspired together and with Chung Cheong-kuen, Frankie to pervert the course of public justice by doing a series of acts which had a tendency to pervert the course of public justice, namely, to obstruct and hinder the investigation and possible proceedings by seeking to gain access to Wong Pui-see, Becky, a person whom they believed or suspected to be co-operating with and assisting the ICAC in that (to investigation, with a view to ascertaining what she had said to investigators of the ICAC and influencing her against providing assistance or information to the ICAC by:

(a) falsely representing to officers of the ICAC that certain persons represented Wong Pui-see, Becky’s interests in dealing with the ICAC and by seeking access to her;

(b) causing to be made an application for a writ of habeas corpus (the application), in respect of Wong Pui-see, Becky, directed to the Commissioner of the ICAC when they knew or believed that she was not unlawfully detained and did not seek release from the custody of the ICAC;

(c) submitting to the High Court of Hong Kong, in relation to the application, affirmations which they knew or believed to be false or misleading immaterial particulars; and

(d) disseminating information and materials to journalists to publicize Wong Pui-see, Becky’s involvement in the said ICAC investigation and to falsely represent that she was being unlawfully detained by the ICAC.

2nd Charge (against D2 only)

Statement of Offence: Perjury, contrary to section 31 of Crimes Ordinance, Cap. 200.

Particulars of Offence: Chui Man-si, also known as Mandy Chui, on the 16th day of July 2004, in Hong Kong, being lawfully affirmed as a deponent, wilfully made statements on affirmation for the purposes of a judicial proceeding, namely habeas corpus proceedings in the High Court of Hong Kong, numbered HCAL 89/2004, before a person authorized by law to administer an affirmation to the said Chui Man-si, which statements were material in that proceeding and which the said Chui Man-si knew to be false or did not believe to be true, namely: -

(a) that Wong Pui-see, Becky was a 30% shareholder and director of Ever Brilliant Consultants Ltd and was her business partner;

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

(c) that she was worried about the well-being of Wong Pui-see, Becky because she had no close family members in Hong Kong.

Further, she omitted a material particular, namely that Wong Pui-see, Becky had assured her that she was safe and sound, and thereby sought to give the impression, which she knew not to be true, that she, Chui Man-si, had consulted solicitors and made the affirmation on behalf of Wong Pui-see, Becky because she believed her to be held against her will.

3rd Charge (against D3 and D4)

Statement of Offence: conspiracy to disclose information about the identity of a participant in the witness protection programme, contrary to section 17(1) (a) and (4) of the Witness Protection Ordinance, Cap. 564 and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

Particulars of Offence: Lam Ping-cheung also known as Andrew Lam, and...

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