HKSAR v Kanjapanas, Chong Kwong Derek & Ors
12 February 2009, Court of Appeal, Hong Kong
Dramatis Personae
A Hong Kong businessman (D1) and his secretary (Becky), together with seven others, were arrested by the Independent Commission Against Corruption (ICAC) on 9 July 2004. D3 Andrew Lam was an experienced criminal solicitor (and an ex-officer of the ICAC) and D4, Kevin Egan was a well known barrister in Hong Kong. D2 was D1's "girlfriend". D3 was D1's solicitor.
The charges
The four defendants were charged with, inter alia,
- (a) conspiracy to pervert the course of public justice (D1 to D4), contrary to Common Law and Sections 159A and 159C of the Crime Ordinance
- (b) perjury (D2), contrary to section 31 of the Crime Ordinance and
- (c) against D3 and D4, conspiracy (or alternatively, against D4, attempt) to disclose the identity of the witness in witness protection programme (WPP), contrary to Witness Protection Ordinance and Crime Ordinance.
Chronology
Certain events were not in dispute:
Becky was given bail on 10 July 2004 and had given two "non-prejudicial statements" to the ICAC. On 11 July, she had a number of "hurried" telephone conversations with D2 while at the ICAC safehouse without the knowledge of the ICAC. On 13 July, she signed a "memorandum of understanding" and agreed to be put into WPP.
On the same day (i.e. 13 July), D1 (having been released on bailed) went to D3's office and then the office of another firm of solicitors (Massie & Clement, "M&C") which was appointed to act for D2. M&C was appointed because D3 was concerned that there was a conflict of interest for him to act for both D1 and D2 (there was a suggestion that M&C was used as a "cordon sanitaire" to enable D3 to distant himself from the habeas corpus but the suggestion was rejected by M&C). D2 told M&C that, from the hurried conversations with Becky, Becky wanted to be released from the ICAC.
D4 (who had a long history of confronting the ICAC, cf. Reid) was shortly afterwards instructed by M&C and D2 and went to ICAC office at Murray Road to demand the release of Becky that evening. D4 was told by the ICAC that it "did not have" Becky and that he, D4, "can take whatever action [he likes]". D4 wrote out a "letter of complaint" there and then that Becky "was being detained against her will" and that she wanted to leave "protective custody" (D4 said he was using that expression sarcastically).
The Habeas Corpus
On 14 July, an ex parte habeas corpus application was taken out to seek the release of Becky. The habeas corpus application was made on the basis of an affidavit of Frankie Chung, a solicitor clerk of another firm of solicitor (instructed by D1's wife to obtain D1's release), which said that Frankie Chung received a call from Becky on at about 1am on 14 July and that she "sounded frightened" and did not know where she was.
The ex parte application was adjourned to 10 am the next day for an inter partes hearing. At the hearing, the judge, Yam J, issued the habeas corpus and ordered that Becky be brought to court at 3:30 the same day and imposed a "tight-lipped" gag. The ICAC resisted the application and disclosed the fact the Becky was in WPP and that the ICAC feared that she would be intimidated and "even D4, with his paternal appearance and bonhomie", might induce Becky to feel that she should change her mind. One of the appeal judges, Tang VP, said that the disclosure was "unfortunate" and
"might also prejudice the defence by the implicit (though not proven) imputation against the applicants or some of them that they were people from whom protection was needed."
The Conspiracy Charge
The main thrust of the ICAC case was that the defendants knew that Becky was not unlawfully retained (and the habeas corpus was therefore a "sham"). D4 said he was acting only on legitimate instructions.
The court of appeal dismissed the appeal by D1 to D3 (Tang VP dissenting in respect of D3) but confirmed the acquittal of D4 (Wright J dissenting).
In relation to D4, Tang VP was of the view (agreed by Ma CJ) that even if Becky was in the WPP it did not mean that she could not be contacted as a potential witness ("there is no property in a witness") and that it would not be an offence to try to contact her, if there is no use of unlawful mean. As the trial judge (Fung CDJ) held as a fact that D4 was unaware that the attempts (including the habeas corpus) to gain access to Becky was shams and if so, there was not an agreement to pervert of course of justice.
Criminal lawyers in Hong Kong should note Wright J's dissenting judgment in this respect. Wright J appears to say that, notwithstanding the principle that there is no property in a witness and that it is lawful to attempt to gain access to witness, the "intention to influence" would be sufficient,
"But what was not reflected by any of the individual arguments advanced was that the intention of the conspirators was to be inferred from their conduct, from the manner in which the, superficially legitimate, means were employed or exploited. It is from the cumulative effect of the individual actions that the true intention appears. And that true intention, as the judge correctly found, on the evidence as a whole, in respect of each of the applicants, including Egan, was to influence Becky against providing assistance or information to the ICAC."
and that,"In my judgment, whether Egan"s motive for making the habeas corpus application was because he genuinely believed that Becky was being held against her will or whether he simply acted unthinkingly in terms of the instructions given to him, does not absolve him from criminal liability provided it is proved that he possessed the requisite mens rea of the intent to influence Becky into not co-operating with the ICAC."
