中新網2月23日電 據香港星島日報報道，2007年香港“廟佳桑拿案”審訊期間，前香港女警吳惠冰為助涉經營淫窟的丈夫脫罪，在法院證人室內安裝MP3機偷錄身為證人的警員 對話，丈夫成功脫罪，吳則須面對審訊，吳22日就事件被控妨礙司法公正及宣誓下作假證供罪名，于區域法院受審。
54歲的女被告吳惠冰22日否認兩罪；吳曾于1975年加入警隊，服務警隊27年，直至2002年退休，退休時為高級警員。
控方開案陳詞指，“廟佳桑拿涉賣淫案”于2007年4月在區院開審，涉案被告包括吳惠冰丈夫張世傑原被控串謀管理賣淫場所及洗黑錢等罪名，吳自
2007年5月7日起，指示友人黃文俊每天早上在法院證人室放置錄音器材，偷錄出庭作供的警員對話，掌握證人“夾口供”的情況。
吳在廟佳桑拿案控方案情即將完畢時，在向法庭交出四段數位錄音機及兩光碟的錄音片段，並供稱錄音片段沒經刪剪，但警方後來發現有關錄音帶曾經刪剪，吳涉嫌妨礙司法公正。
此外，吳為隱瞞其代表律師行的法律文員姚木德有參與偷錄計劃，她于2008年1月11至14日在庭上宣誓下作供稱，姚同年12月才知道偷錄的事，但有證據顯示姚2007年5月已知道偷錄的事，並協助把錄音製成謄本。聆訊今續。
【本報訊oriental daily】廟佳桑拿案○七年在區域法院審訊時，其中一被告曾任警員的妻子偷錄得警員在證人休息室的對話，並呈堂作證供，結果因證人證供存疑而令案中九名被
告在毋須答辯下獲釋。惟律政司指前女警與另兩男在法院內偷錄的行為有藐視法庭之嫌提出起訴，三人均否認指控，案件昨在高等法院審理。
三被告分別為：吳惠冰、黃文俊及姚木德。吳及黃是朋友，他們被指在○七年五月至九月期間，在區域法院大樓八樓一證人休息室內偷錄得四十七份涉案探員
的對話。姚是律師行師爺，將錄音對話譯成英文謄本。該案的聆訊逾一百廿日，涉案被告除偷錄到涉案警員的對話外，亦包括其他在該段期間曾使用涉案證人休息室人士的對話。
代表控方的資深大律師麥高義在陳詞指，證人到法庭作證，應受到法庭的保護，任何干擾證人的行為，即使在證人不知情下進行，或是
非在法庭內發生，也屬藐視法庭。他又指出，香港過往從未發生類似本案中在法庭偷錄音的藐視法庭案件，但外國有案例指，即使被告有個人理由作出有關行為，也
不能免卻罪行。
案件編號：HCMP 840/2010
【香港商報】訊 07年「廟佳桑拿案」審訊期間，前女警吳×冰為助涉經營淫窟的丈夫脫罪，偕友人在法院證人室內安裝MP3機偷錄身為證人警員「夾口供」的對話，兩人在高院 被裁定刑事藐視法庭罪名成立，主審法官韋毅志昨日裁決時，指兩人的偷錄行為破壞司法制度，損害司法公義，更打擊證人出庭作供的信心，尤其吳×冰曾當差27 年，應清楚知道偷錄證人對話的嚴重性，故認為兩人所面對的藐視法庭罪必須判處監禁刑罰，但因案件為首宗在法院偷錄證人對話的藐視法庭罪行，乃判兩人分別入
獄9個月及6個月，同准以緩刑18個月執行，并下令兩人須支付以懲罰性計算的訟費。
錄音提證據9被告脫罪
法官韋毅志在判案時指，04至05年警方派出臥底調查經營淫窟的非法活動，拘捕9名人士控以串謀經營賣淫場所罪名，吳×冰為該案其中一名被
告張×杰的妻子，吳陪同丈夫出庭審訊期間，聽到警員在庭外說要「鋤死距」，因此要求友人黃×俊每日預先在區域法院8樓的證人室內安裝MP3機，偷錄警員於 07年5月至9月期間的對話共47天，律師行師爺姚×德知悉后，則安排將錄音翻譯成英文，他們於案件近乎審結前，才提出有關證據，最終獲主審的法官裁定9 名被告全部脫罪。
韋毅志法官稱，當差27年的吳×冰最初的錄音動機，是確保丈夫免被「鋤死」，但她當時身為警員，延長錄音達47天及在最后一刻才供出錄音一事，是「罪加一等」，被告在錄音3天后，已能證明有關警員的證供有問題，毋須錄音4個月。被告的行為損害司法制度，也打擊證人作供的
信心，法庭必須嚴懲，以儆效尤。但考慮本案為首宗個案，故判2人緩刑。事件中的師爺姚×德因未有參與錄音故判他藐視法庭罪名不成立。
HCMP840/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDING 840 OF 2010
______________________________________
IN THE MATTER of an application by the
Secretary for Justice for leave to apply for an Order of Committal
and
IN THE MATTER of District Court Criminal
Case No. 1280 of 2005
________________________
BETWEEN
SECRETARY FOR JUSTICE Applicant
and
NG Wai-bing 1st respondent
WONG Man-chun 2nd respondent
YIU Muk-tak 3rd respondent
___________________
Before: Hon Wright J in Court
Date of hearing: 7 and 8 September 2010
Date of Judgment: 21 October 2010
_________________________
JUDGMENT
_________________________
1.
This is an application, pursuant to leave granted on 6 May 2010, by the
Secretary for Justice for the committal of the three respondents consequent
upon events which occurred during the hearing of a criminal trial in the
District Court under reference DCCC1280/2005. It is asserted by the applicant
that the conduct of the respondents amounted to contempt of court.
2.
The relief sought in the originating summons against 1st respondent is,
and the grounds for it, are expressed thus:
that the 1st respondent be committed to
prison and/or fined for contempt of this Honourable Court for placing or
causing other person to place an "MP3" (acronym of MPEG-1 Layer 3)
recording device underneath a chair in a witness room on 8th floor, Wanchai Law
Courts, Wanchai Tower, 12 Harbour Road, Hong Kong, which is within the
precincts of or in the face of the District Court, for a total of 47 days from
7 May 2007 to 7 September 2007, to record all the conversations which might
take place inside that witness room, where prosecution witnesses and other
police officers in connection with the District Court Criminal Case no. 1280 of
2005 stayed therein during the trial of that criminal case
3.
The 2nd respondent is alleged to have placed the MP3 recorder beneath
the chair whilst 3rd respondent is said to have arranged transcription and
translation into English of "... recordings which he knew was (sic)
recorded..." by such device. The applicant accepts that 3rd respondent did
not initially know that the recordings provided to the transcription service
came from the witness room. In due course and in the course of his duty he did
conclude it to be so.
4.
In the circumstances, it is necessary to consider in some detail the
conduct which is said to constitute the contempt.
THE BACKGROUND
The trial in the District Court
5.
Over a period of some 13 months between 2004 and 2005 police officers
conducted an undercover investigation of criminal activities alleged to have
taken place in various massage/sauna parlours in Kowloon. As a result nine
persons were charged with one count of conspiracy to manage a vice
establishment whilst three of the accused faced, in different combinations, a
further 10 charges of money laundering. The 4th accused in that trial, facing
only the conspiracy charge, was one CHEUNG Sai-kit. He was a retired police
officer. He is married to the 1st respondent who, herself, is a retired police
officer.
6.
The trial, which was described in a subsequent appeal by way of case
stated (Secretary of Justice v LAU Hon-keung and Others CACC 156/2009) as being
"... of extraordinary length...", began on 17 April 2007 before
Deputy Judge M C Jenkins. It occupied approximately 150 court days.
7.
On 5 December 2007, some 128 days into the hearing, when counsel on fiat
indicated that he intended to close the prosecution case, counsel for the 4th
and 6th accused, Mr Raymond Yu, applied to recall PC53687, who had participated
in the undercover operation and had testified as the first prosecution witness,
asserting that a number of audio recordings had been provided by 1st respondent
which, it transpired, had been covertly obtained in a witness room outside the
courtroom where the trial was being heard and which, it was said, recorded
police officers discussing aspects of the evidence.
8.
Mr Yu was instructed by Messrs Anthony Kwan and Company. The 3rd
respondent in these proceedings is a law clerk employed in that practice, was
the representative of that firm present in court instructing counsel throughout
the trial and is also a retired police officer.
9.
It appears from the transcript of proceedings that it was common cause
that the recordings were not of good
quality. An issue arose also as to the authenticity and admissibility of the
recordings. The judge held a voir dire to resolve this issue.
10. The judge ruled the contents of the recordings
to be admissible in evidence although, as he noted, the accuracy of the
transcripts remained an issue. The judge accepted that where the recording was
clear the transcript "... was most likely to be accurate". A number
of the police officers concerned were recalled to testify regarding the
recorded conversations. The judge noted, in particular, that each of the police
officers "... said he was unable to recognise whether his voice had been
recorded and did not recognise any of the voices." The judge found this to
be "highly improbable" and “unbelievable”.
11.
When the prosecution case finally closed, a submission was made that
there was no prima facie case for any of the accused to answer on any of the 11
charges. On 4 February 2008 the judge delivered a brief ruling acceding to that
application, as a result of which all the accused were acquitted. He said,
inter alia:
5)
It was plain that the prosecution case depended very largely on the
evidence of the undercover police officers.... Very broadly the defence
suggested that the officers had fabricated evidence to a large degree both as
to what had happened at the massage parlours and (in the case of PW1) the roles
played by the various defendants.
10)
... I am wary about attaching
much weight to [the 1st respondent's] purported identification of the voices on
the recordings.... However in many cases it is apparent from the content of the
recordings, and from the context, who is speaking. And the only female voice
recorded has to be the present officer in charge of the case who is known as
Daisy. It simply could not be anyone else.... So irrespective of the accuracy
of [the 1st respondent 's] voice identification it is not difficult in many
cases to deduce whose voice is speaking.
11)
... As I have said parts of the recordings were clear enough to enable
satisfactory voice identification. In some cases, from the context, it is plain
who is speaking. Yet the police officers said that they could not hear who is
speaking. It seems to me to be highly improbable that none of these witnesses
would be unable (sic) to recognise his own voice or the voices of his
colleagues.
14)
It is of course fundamental that witnesses... must not discuss evidence.
Each witness was expressly told by me not to discuss the case or the evidence
during adjournments. This usual warning should be unnecessary in the case of
experienced police officers but I am driven to the conclusion that the
witnesses in this case on whose evidence the prosecution so heavily rely have
ignored that warning and done what they should not have done. These witnesses
are the undercover officers PWs 1, 2, 4, 5 and 10.
15)
... on a number of occasions it is plain that the witnesses were talking
about aspects of the evidence that had earlier that day been given or about
questions that had been put in cross-examination or questions that might be
asked in future. And the recording... on 10 May 2007 is open to the
interpretation that suggestions are being made as to how to answer future
cross-examination. I do not go so far as to say that these witnesses have
deliberately got together to fabricate evidence that would falsely implicate
the defendants but the fact is that they have discussed specific areas of the
evidence despite them knowing that they should not have done so.
17)
... I have to accept that... it is unbelievable that none of the
prosecution witnesses recalled to deal with the recordings were able to
recognise any of the voices.
18)
The question now is: whether the discussion of the evidence and the
failure by the prosecution witnesses to recognise the voices on the recordings
is fatal to the prosecution case? I am bound to say that were it not for these
matters the prosecution case was a strong one and undoubtedly I would have
found that there was a case to answer for all the defendants on each charge
he/she faced. Is this a case where the strength or weakness of the evidence
depends on the view to be taken of its reliability? Is it a case where one
might say: "Well, the witness may be mistaken, incorrect or wrong about
one matter but that does not destroy his credibility on the other issues".
If so the matter would be left to the jury if there was one. But as I have
found, the behaviour of five essential prosecution witnesses and their
credibility is seriously to be questioned. With that in mind, and considering
the defence submissions and the authorities cited I am led to the conclusion
that the conduct of the witnesses undermines and weakens the evidence to such
an extent that a properly directed jury could not properly convict.
12.
It is clear from the judge’s ruling, therefore, that the application was
granted on two bases: first, that some of the prosecution witnesses had
discussed the evidence and the course of the trial whilst testifying which had
been established, as a matter of fact, by the recordings made in the witness
room by the respondents and had done so in defiance of a direct instruction
from him; and, secondly, that the judge was satisfied that the witnesses who
testified concerning this issue on behalf of the prosecution were being
untruthful in regard to their ability to identify voices on those recordings,
thereby irremedially damaging their credibility.
13.
It is pertinent to note that the Secretary for Justice appealed the
judge's decision by way of case stated
(LAU Hon-keung and Others, supra). However, there was no challenge in
the course of that appeal to the correctness of the judge's ruling regarding
findings of credibility. In the event the Court of Appeal allowed the appeal,
in part, holding that there was evidence against the former first accused in
the trial in respect of Charges 4 and 7 other than from the undercover police
officers; that the judge had failed to consider that evidence in arriving at
his decision that there was no prima facie case for the former first accused to
answer in respect of those two charges; that in this respect the judge had
fallen into error.
The evidence on the voir dire
14.
The 1st and 2nd respondents testified during the voir dire concerning
the admissibility of the audio recordings, as did a third person, Lam Mo-wah,
who was described as an audio engineer: nothing in these proceedings turns on
his testimony. The 2nd respondent is a family friend of 1st respondent.
15.
The essence of their evidence appears in facts admitted for these
proceedings as follows:
(6)
The 1st respondent testified that towards the end of April 2007 she
overheard PW1 talking to another police officer known to her as "Spare
Rib" as they left courtroom 24 at the end of that day's hearing. The 1st
respondent stated that she heard "Spare Rib" say to PW1 "That's
right, just fucking nail him". She at this juncture became worried that
police witnesses might falsely collude together or might not tell the truth
against the defendants including the 4th defendant, her husband. The 1st
respondent decided to see if she could obtain evidence to support the concern
she felt.
(7)
The 1st respondent said that she approached the 2nd respondent, a friend
of hers, who agreed to place audio recorders inside the witness room with a
view to recording all the conversations which might take place therein.
According to the testimony of the 1st respondent, the 2nd respondent placed a
Samsung MP3 digital recorder inside the witness room on every court day in the
early morning from 7 May 2007 onwards. On each following morning after the
court hearing, 2nd respondent would hand the MP3 recording device to the 1st
respondent who then labelled it with the date of recording and kept it in a
safe at her home.
(8)
The 1st respondent said that the prosecution witnesses, including PW1
always stayed inside the same witness room just outside courtroom 24 which the
1st respondent recorded in her notes as "Rm 2".
(9)
The 1st respondent testified that there are a total of 47 audio
recordings each contained in a Samsung MP3 digital recorder, taken inside [Rm
2]... between 7 May 2007 and 7 September 2007.
(10)
The 1st respondent said that
on certain days, including 7 May 2007, she stayed outside the courtroom to
observe who the police officers were that came out and went into [Rm 2]. She
said that she made contemporaneous notes of the police officers’ movement and
would later tidy up those contemporaneous notes and transfer the information on
to some other better-written notes.
(11)
On 14 January 2008 during the voir dire the 2nd respondent testified
that the 1st respondent had told him that there was a prosecution witness who
mentioned his intention to "nail" her husband. The 1st respondent
therefore asked the 2nd respondent to place an MP3 recording device under a
chair in [Rm 2]... to record all the conversations which occurred in that room
on a daily basis on every court day. The 2nd respondent mounted and dismounted
the MP3 recording device in [Rm 2] on each of the 47 days. The 2nd respondent
said that he did not see any unlawfulness in placing the MP3 recording devices
into the relevant witness room, in order to do justice.
16.
In addition to these agreed facts, it is appropriate to have regard to
particular passages of the evidence contained in the transcripts, references
being to Hearing Bundle C.
17.
In 1st respondent's evidence in chief:
75 K-N:
Q:
Now, in relation to the words uttered by Sparerib, did you do anything
about it?
A:
Yes I did.
Q:
Yes, what did you do?
A:
In fact, having heard those words, if I then went to tell other people
about it, that is telling people about the police officer saying that they
wanted to nail those people, I reckoned that no one would believe me what I
said unless I have evidence that these people really would do something
perverting the course of justice.
75 S:
Q:
So in the end what did you do?
A:
Well, I thought it over and I reckoned that if I was able to capture
what was said by them in audio record that would be the best way. I cannot
think of any other better way.
76 N:
Q:
... when was the first day Wong Man-chun placed the recorder in the
witness room?
A:
7 May.
116 R - 117B:
Q:
Now, we know that there were 47 days of recording, madam, but obviously
there were more days of evidence. Was there any plan or strategy that you devised
in determining which days should be recorded?
A:
Well, in fact, originally I wanted to make audio recordings on each and
every day but after all the recordings in relation to PW1 had been made and at
the time when the audio recordings in relation to [PW2] were being made it was
discovered... that what they had for about was just chit chat, casual chat.
They did not discuss about the evidence.
In the cross-examination of 1st respondent
by the prosecution:
195 C-H:
Q:
Right. So was there any day when unexpectedly they used another room so
the recording was of no value?
A:
Well, for these witnesses, in general, for the time after they came to
court they occupied the room [the whole day].
...
A:
Because they were required to move the exhibits to that room during
lunch hour. They have a fixed room and no one else entered that room.
205 A -C:
Q:
Yes, the conversations on how many MP3 players ended up being
transcribed?
A:
After this matter in relation to the recording was revealed - - after
this recording matter was revealed, I had given the recordings, the MP3
recordings in relation to 9 May, 10 May, 14 May and 1 June to the transcriber
to make transcripts.
206 A-G:
Q:
Well, there were four different dates up to when it was revealed. Were
there any more that were the subject of transcription?
A:
There was one extra one in relation to 7 June.
...
A:
... originally I only thought about revealing 10 May’s transcript, only
one.
...
A:
Well, I only given that one to [the 3rd respondent] and then who passed
it to counsel. And then when this matter, this transcript or this matter was
brought to court, and I understand that there were some dispute between
counsel. And so more were being asked for.
208R - 209K:
Q:
Your discussion with [the 3rd respondent] was about these recordings. He
knew it related to this case?
A:
No, he didn't know.
Q:
And why did you not tell him?
A:
Of course I would not tell him.
Q:
Why not?
A:
Because this thing I was doing, I did not want anyone to know about it.
COURT: Why not was the question.
A:
Well, as I wanted to continue to make the recordings, that is I wanted
to continue to make the recordings in relation to what the witness said in the
room, so I know that if this matter was revealed I would not be able to do so.
Q:
You mean you were worried that if you told the solicitor he might advise
you to stop doing it?
A:
That would be a way to put it.
...
Q:
And why was it raised that time it was? Why did you raise it at the time
that you did or reveal it at time that you did?
A:
Which day?
Q:
Well, sometime around the beginning of December, the point surfaced. So
why was it held up until that bit?
A:
Well, I reckon that at that time it was - - that time was mature, so...
Q:
Why then? Why was the time mature?
A:
Because the witnesses had - - all the witnesses had already given their
evidence.
257 B-F:
A:
... The reason I do this is because I want to uphold the integrity of
justice, and I want to find out whether someone had perverted the course of
justice.
COURT: All right.
Q:
Right. So your primary objective was not to help your husband. It was for
wider interest.
A:
Well, in a word I wouldn't say that. I did this because I want to uphold
justice. And other things, I don't know what you are trying to suggest or say.
From the evidence in chief of 2nd
respondent:
268 B:
Q:
When was the first time you placed MP3 device in that witness room?
A:
The 7th of May.
270 G:
Q:
On the 10th did you place another MP3 in the same witness room?
A:
Well, not too sure. Well, logically speaking I would have, because on
every occasion it was [the 1st respondent] who instructed me whether or not to
place the MP3 device.
18.
Further facts agreed by the respondents relate to the transcription and
translation of the recordings. They may be summarised as follows:
18.1
Mr Lam Shing Ming is the person-in-charge of Diners Professional
Translation Services (“Diners”) which had provided services to Anthony Kwan
& Co. some four times since 2002;
18.2
in about May 2007, 1st and 3rd respondent s attended the office of
Diners to have some audio recordings on compact discs transcribed. The 1st respondent handed some compact discs
containing recordings to one Shum Lok Ka for transcription. Thereafter, 1st
respondent attended Diners alone to deal with the transcription. Each time, she
would hand him one or two compact discs for transcription;
18.3
the 3rd respondent later learned from the transcripts that the
recordings were of the prosecution witnesses improperly discussing evidence in
the trial and other matters while inside a witness waiting room;
18.4
apart from 3rd respondent, 1st respondent and a Mr. Lam from Anthony
Kwan & Co. had later come to Diners to follow up the collection of
transcriptions;
18.5
whenever a draft of a transcript was ready, Mr Lam Shing Ming would fax or email to 3rd
respondent at Anthony Kwan & Co.. Some 12 emails were sent to 3rd respondent
by Mr. Lam about the transcriptions and translations, between June and November
2007. If any amendment was required to a transcript, the 1st respondent would
take the hardcopy of the transcript with some handwritten amendments thereon to
Diners. Sometimes, the draft transcripts with handwritten amendments would be
faxed to Diners from the office of Anthony Kwan & Co. Diners received the
fair copy of the draft from Anthony Kwan & Co. by fax;
18.6
if Mr Shum had difficulty hearing the audio recording provided by the
1st respondent, he would seek assistance from her. The only means of contact
with 1st respondent was her mobile telephone or when she attended the office of
Diners. Mr. Shum would also contact 3rd respondent via his mobile
telephone; and
18.7
Diners had issued invoices dated 18 July 2007, 31 August 2007 and 28 September
2007 to Messrs Anthony Kwan & Co..
Diners received from Messrs Anthony Kwan & Co. cheques in payment of
their services which were signed by Mr Kwan Wai Ming who is the sole proprietor
of Anthony Kwan & Co.. His firm represented all except 2nd and 3rd accused in DCCC 1280 of 2005 in December
2005. Mr Kwan knew that one of his clients had instructed 3rd respondent that
there were some recordings which needed to be transcribed. Any transcription
and translation work in relation to that case was the responsibility of 3rd
respondent.
19.
It will be appreciated, therefore, that the role of 3rd respondent was
separate and distinct from that of 1st and 2nd respondents.
Proceedings currently pending in the
District Court
20.
The effect of the judge’s ruling was that 1st respondent’s concern over
the prospects of prosecution witnesses colluding in respect of, if not actually
fabricating, their evidence were vindicated, at least in part, by the content
of the recordings themselves.
21.
As a direct result of the recordings in the witness room two police
officers, including the officer who had testified as the second prosecution
witness in the trial, have been jointly charged with two offences, viz doing an
act tending and intended to pervert the course of public justice and misconduct
in public office. They are awaiting trial in the District Court.
22.
The applicant has indicated that he will be relying, in that
prosecution, upon the very conduct captured in the recordings initiated by 1st
respondent and which, but for the action taken by the respondents, would likely
have gone undetected.
23.
As a result of the evidence which she gave during the voir dire, 1st
respondent in these proceedings has also been charged with two offences, viz
doing an act tending and intended to pervert the course of public justice and
perjury. She, too, awaits trial in the District Court.
THE PARTIES’ CONTENTIONS IN THESE
PROCEEDINGS
24.
None of the respondents required any of the deponents to the
affirmations in support of this application to be made available for
cross-examination. Similarly, none of the respondents filed any affirmations in
reply, nor did any testify. The burden of proof in these proceedings is on the
applicant: no adverse inference may be drawn against the respondents for the
course they have adopted.
25.
The applicant contends that the conduct of the respondents "...
involving the systematic and covert recording of prosecution witnesses and
others inside a witness waiting room of the District Court" constituted an
improper interference with the administration of justice.
26.
The applicant characterises the respondents’ conduct as a contempt, it
being "... designed to obtain an improper evidentiary advantage in the
criminal trial, by unlawful means" whilst simultaneously recognising that
that same conduct had the positive consequence of preventing an outcome to the
trial which properly could have been described as a miscarriage of justice.
27.
It is the applicant’s submission that it is not necessary to establish
any intention to interfere with the course of justice, it being sufficient that
the conduct itself had the objective tendency or was inherently likely to
constitute an interference with the administration of justice.
28.
Conversely, it is the position of 1st and 2nd respondents that the
applicant is required to establish an intention to interfere with the course of
justice which he is unable to do in the present circumstances, it being the
respondents’ position that their sole intention, which in the event was
achieved, was precisely to prevent a miscarriage of justice. Thus, it is said,
their conduct cannot be an interference with, or result in prejudice to, the
administration of justice.
29.
The 3rd respondent goes further, his position being somewhat different
from that of 1st and 2nd respondents. In addition to adopting the same position
as they in regard to the question of intention, it is his submission that his
involvement amounted to no more than providing a facility for the transcription
of the recordings such that, even if the making of the recordings did
constitute a contempt, his conduct simply of
facilitating the recordings being brought from oral into written form
could not constitute, by itself, the substantive offence of contempt.
30.
He also submits that, as he was a solicitor's clerk whose principal was
representing the husband of 1st respondent, he had a duty to assist his client
by acting on positive information provided by 1st respondent, especially at a
time when, initially at least, the value of the information would not be
immediately apparent.
Preliminary issues
31.
In the course of his submissions on behalf of the applicant, Mr. McCoy
SC raised several matters, largely in anticipation of them being raised by the
respondents. It is convenient to deal with them, briefly, at this stage.
32.
First, whilst the District Court has, by virtue of s. 20 of the District
Court Ordinance, Cap 336, statutory power to deal with contempt proceedings of
a defined nature, I am satisfied that this court has jurisdiction to entertain
these proceedings by virtue of its inherent supervisory powers over proceedings
before inferior courts.
33.
This application is brought pursuant to Order 52 Rule 2(2) of the Rules
of the High Court. The primary distinction between the equivalent former rule
of the rules of the Supreme Court and the present rule is that there is no
longer a requirement that contempt proceedings be before two judges. When
considering the provisions of the former rule, Hunter and Kempster JJ in In re
an application by Liu Lee Yuk-ching [1982] HKLR 399 held that the High Court
does have supervisory jurisdiction over proceedings in the District Court which
includes hearing applications for committal for contempt where that contempt
was committed in the District Court.
34.
It is, moreover, recognised that the power of a District Court judge to
invoke the provisions of that s. 20 of the District Court Ordinance "...
should be exercised sparingly and with great caution” and “... only as a last resort... such as where
the contempt is clearly proved and cannot wait to be punished." (per Keith
J in HKSAR v YAU [1999] 2 HKLRD 633) and, further, that
A criminal contempt is a matter for the
Secretary for Justice to raise, acting as the guardian of the public interest
in ensuring the protection of the due administration of justice.
(Secretary for Justice v CHOY Bing Wing
[2005] 4 HKC 416 §16)
35.
Another matter raised on behalf of the applicant was whether the fact
that the witnesses were regularly warned at the commencement of each court
adjournment not to discuss their evidence with anyone else and yet apparently
did so in defiance of the warning , of itself, would constitute a
contempt. I was "... invited to
rule in the absence of any local decision..." that such conduct was
contemptuous, thereby following the decision of the English Court of Appeal in
R v Jales [2007] Crim. LR 800. Whilst the judge did make reference in his
ruling to the fact that he had warned the witnesses not to discuss the evidence,
he does not appear to have relied upon that fact in arriving at his decision.
Consequently, I do not believe it to be either necessary or desirable to
express any general view on this issue.
36.
The sanction sought by the applicant in these proceedings is penal in
nature. There is no dispute between the parties that the applicant needs to
prove his case against each respondent to the criminal standard : (see, for
example, A.-G v Newspaper Publishing Plc
[1988] Ch 333, 361B; Kao, Lee & Yip
v Koo Hoi Yan (2009) 12 HKCFAR 830 §30)
37.
I do not believe it to be either necessary or helpful to embark on a
consideration of whether the conduct complained of was conduct "in the
face of the court" or whether the witness room where it occurred was
within the "precincts of the court". Although there was a tentative
suggestion initially on the part of 1st and 2nd respondents that it was not,
that approach, sensibly, was not pursued in argument. It is only necessary to
have regard to the words of Lord Esher, MR, in in re Johnson (1887) 20 QBD 68,
72 to demonstrate the lack of substance in any such contention:
If anyone attempts to interfere improperly
with such judicial proceeding, provided it is done with sufficient nearness, it
is a contempt; a contempt not of the judge, but of the High Court as a judge of
which he is acting. [Emphasis supplied]
see, also, Registrar v Unnamed Respondent
[1994] ACTSC 24, §24.
Mens Rea
38.
I turn now to the issue which seems to me to lie at the heart of this
application, namely: what does the applicant have to establish by way of mens
rea on the part of each of the respondents?
39.
It is to be noted that Mr. McCoy made it clear that when he indicated
that it was unnecessary for the applicant to prove intent that he had in mind
specific intent to interfere with the administration of justice: he accepted
that it remains necessary for the applicant to establish basic intent - that
the respondents knowingly carried out the acts concerned.
40.
It would appear that a divergence now has arisen between the approach of
the courts in England on the one hand and Australia and New Zealand on the
other in regard to the mental element required to be proved in
"criminal" contempt proceedings.
41.
Prior to the introduction in 1981 of specific legislation in England
relating to contempts Lord Goddard CJ in R v Odhams Press Ltd [1957] QBD 73
stated, at p.80, the test to be:
...whether the matter complained of is
calculated to interfere with the course of justice, not whether the authors and
printers intended that result, just as it is no defence for the person
responsible for the publication of a libel to plead that he did not know that
the matter was defamatory and had no intention to defame. It is obvious that if
a person does not know that proceedings have begun or are imminent, he cannot
by writing or speech be said to intend to influence the course of justice or to
prejudice the litigant or accused person, but that is no answer if he publishes
that which in fact is calculated to prejudice a fair trial. We would refer to
the emphatic statement of the law by a judge of great eminence whose judgements
are always received in this country with the highest respect, Palles C.B.. In
Rex v Dolan [[1907] 2 I.R. 260], having posed the question of whether a speech
on the subject of the motion would have a tendency to prejudice the fair trial
of an indictment, the Chief Baron said:
As to the law applicable to the case, there
is no doubt. Actual intention to prejudice is immaterial. I wholly deny that
the law of this Court has been that absence of an actual intention to prejudice
is to excuse the party from being adjudged guilty of contempt of court, if the
court arrives at the conclusion which I have arrived at, that there is a real
danger that it will affect the trial: or that absence of intention is to excuse
the party from punishment. Such a circumstance as that ought, no doubt, to be
taken into consideration in considering the nature of the punishment to be
awarded, as, for instance, whether it should be imprisonment.
Again this seems to dispose of any
suggestion that mens rea, which means a guilty intention, is in any way
material except as to penalty.
42.
This approach was specifically approved by Donovan LJ in Attorney
General v Butterworth and others [1963] 1 QB 696 where he said, at 726:
I conceive that position, however, to be
this. Regina v Odhams Press Ltd makes it clear that an intention to interfere
with the proper administration of justice is not an essential ingredient of the
offence of contempt of court. It is enough if the action complained of his
inherently likely so to interfere.
43.
In New Zealand, the full Court, Eichelbaum CJ and Greig J, in Solicitor
General v Radio New Zealand Limited [1994] 1 NZLR 48 took a similar view:
In this respect no meaningful distinction
can be drawn between interfering with the administration of justice in relation
to a pending case, or injuring the system as a whole in relation to its
capacity to administer justice in future. The latter must be regarded as of at
least equal importance. Accordingly we hold that the mens rea element is
satisfied by proof that the defendant knowingly carried out the act or was
responsible for the conduct in question. The proof of an intention to interfere
with the due administration of justice may assist the conclusion that the
publication had the required tendency, and its presence or absence would also
be relevant to penalty; but the absence of such an intention will not
necessarily lead to the conclusion that no contempt has been committed.
44.
This approach is consistent with the position in Australia. The
following passages appear in the judgment of Wilson J in Hinch and Macquarie
Broadcasting Holdings Limited v. The Attorney-General for the State of Victoria
[1987] HCA 56; (1987) 164 CLR 15:
16. ... One cannot rule out the possibility
that an incidental and not intended by-product of a discussion of a matter of
general concern may nevertheless exhibit so strong a tendency to prejudice
pending criminal proceedings as to warrant punishment for contempt. Conversely,
the fact that a publication cannot be excused as an incidental and not intended
by-product of such a discussion does not necessarily lead to a finding of
punishable contempt.
in the judgment of Deane J:
2. ...While the act of publication must be
intentional, an intention or purpose of prejudicing the due administration of
justice is not an essential ingredient of this type of contempt of court (John
Fairfax & Sons Pty. Ltd. v. McRae [1955] HCA 12; (1955) 93 CLR 351, at p
371). The "critical question is whether the act is likely to have that
effect, but the intention with which the act was done is relevant and sometimes
important" (per Gibbs C.J., Mason, Murphy, Wilson and Brennan JJ., Lane v.
Registrar of Supreme Court of N.S.W. [1981] HCA 35; (1981) 148 CLR 245, at p
258 and see, generally, Registrar of the Court of Appeal v. Willesee (1985) 3
NSWLR 650, at pp 658 (Kirby P.) and 673-676 (Hope J.A.)). Thus, a finding that
the publication in fact has a clear tendency to prejudice the due
administration of justice may well, particularly in the context of the criminal
onus of proof ... be more readily made in a case where the conduct was engaged
in for that very purpose than in a case where any such interference would be
but an unintended and incidental side effect.
6. Viewed in the context of the common law,
there are some unusual features of both the offence of contempt of court by publication
and the criminal procedure for its punishment. Thus, as has been said, it is
not necessary that the publication be made with an actual purpose or intention
of prejudicing the due administration of justice. In that sense, there is no
full requirement of mens rea.
and in the judgment of Toohey J:
32. Proceedings for contempt of court are
proceedings for a criminal offence. It might be thought therefore that such
proceedings cannot succeed unless they establish an intention on the part of
the person charged to interfere in the administration of justice. But the
weight of authority is now firmly against such a view. The conduct of the
person charged must be deliberate in the sense that he must have intended to
publish what he did. But that is a far different thing. Intention to interfere
in the administration of justice has been held to be a relevant consideration,
but its existence unnecessary for a conviction.
45.
These decisions are consistent with the pre-1981 decisions in
England. However, in 1981 the Contempt
of Court Act was passed in England which had the effect of limiting the
application of the strict liability rule in contempt proceedings. No such
equivalent legislation exists in Hong Kong. Consequently, the decisions of the
English Court of Appeal as well as views expressed by commentators subsequent
to 1981 discussing the question of intent in criminal contempt proceedings need
to be approached with caution.
46.
For example, in A-G v Newspaper Publishing Plc, supra, Sir John
Donaldson MR said, at 374H, when discussing s. 6(c) of that Act:
I am quite satisfied that what is
contemplated, and what is "saved", is the power of the court to
commit for contempt where the conduct complained of is specifically intended to
impede or prejudice the administration of justice. Such an intent need not be
expressly avowed or admitted, but can be inferred from all the circumstances,
including the foreseeability of the consequences of conduct. Nor need it be the
sole intention of the contemnor. An intent is to be distinguished from motive
or desire...
47.
For the sake of the context, s. 6(c) of that Act provides:
Nothing in the foregoing provisions of this
Act-... (c) restricts liability for contempt of court in respect of conduct
intended to impede or prejudice the administration of justice.
48.
Similarly, at 383B, in the judgment of Lloyd LJ:
I would therefore hold that the mens rea
required in the present case is an intent to interfere with the course of
justice. As in other branches of the criminal law, that intent may exist, even
though there is no desire to interfere with the course of justice. Nor need it
be the sole intent. It may be inferred, even though there is no overt proof.
The more obvious the interference with the course of justice, the more readily
will the requisite intent be inferred.
49.
Consequently, the observation of Lord Bingham of Cornhill CJ in A-G v
Newspaper Publishing Plc and Others [1997] WLR 926, 936H-937A that "Both
parties accepted the test propounded by Sir John Donaldson MR in Attorney
General v Newspaper Publishing Plc.”, as set out in §46 supra, falls to be
considered in the light of the English legislative regime.
50.
Even so, there still appears to be some uncertainty in England. The
learned authors of Alridge, Eady and Smith on Contempt Third Edition, 2005,
note when dealing with “The Mental Element in Non-Publication Contempts”, at
11-22:
A question remains, however as to the
nature of the mens rea required for common-law contempt outside the context of
publication, and particularly with regard to acts of direct interference with
the processes of justice.
51.
In Hong Kong in an appeal from a decision of a judge dismissing an
application for committal relating to a contempt pursuant to disobedience of an
order of court, usually termed a "civil contempt", LePichon JA in
delivering her judgment, with which the other judges concurred, said in Kao,
Lee & Yip v Koo Hoi Yan & Others [2006] 4 HKLRD 631:
25.
The mental element required for civil contempt lies at the heart of this
appeal. A convenient starting point that would be the speech of Lord Oliver in
A-G v Times Newspaper Ltd & Another [1992] 1 AC 191 at pp. 217-218:
A distinction (which has been variously
described as "unhelpful" or "largely meaningless") is
sometimes drawn between what is described as "civil contempt", that
is to say, contempt by a party to proceedings in a matter of procedure, and
"criminal contempt". One particular form of contempt by a party to
proceedings is that constituted by an intentional act which is in breach of the
order of a competent court. Where this occurs as a result of the act of a party
who is bound by the order or of others acting at his direction or on his
instigation, it constituted a civil contempt by him which is punishable by the
court at the instance of the party for whose benefit the order was made and
which can be waived by him. The intention with which the act was done will, of
course, be of the highest relevance in the determination of the penalty (if
any) to be imposed by the court, but the liability here is a strict one in the
sense that all that requires to be proved is service of the order and the
subsequent doing by the party bound of that which is prohibited. When, however,
the prohibited act is done not by the party bound himself but by a third party,
a stranger to the litigation, that person may also be liable for contempt.
There is, however, this essential distinction that his liability is for
criminal contempt and arises not because the contemnor is himself affected by
the prohibition contained in the order but because his act constitutes a wilful
interference with the administration of justice by the court in the proceedings
in which the order was made. Here the liability is not strict in the sense
referred to, for there has to be shown not only knowledge of the order but an
intention to interfere with or impede the administration of justice - and
intention which can of course be inferred from the circumstances.
That passage highlights the following
matters: (1) that there is a distinction to be drawn between civil contempt and
criminal contempt in relation to the mental element that is required; and (2)
that in civil contempt, liability is strict in the sense that an intention to
interfere with or impede the administration of justice is not required.
26.
These were recognised by Ma J (as he then was) in Citybase Property
Management Ltd v Kam Kyun Tak (No 1) [2003] 2 HKC 98 at p. 103 which the judge
below cited in para. 12 of his judgment. He held that proof of an intention to
disobey the order is not required. All that has to be shown is that the alleged
contemnor knew the facts which gave rise to the contempt and that the conduct
was not accidental.
52.
Unsurprisingly, the respondents rely on the extract from the speech of
Lord Oliver quoted by Her Ladyship. That judgment was considered by the Court
of Final Appeal in Kao, Lee & Yip v Koo Hoi Yan (2009) 12HKCFAR 830 in
which, when giving a judgment with which the other members of the Court agreed,
Sir Gerard Brennan NPJ observed:
41.
In criminal law, mens rea relates to the elements of the offence - the
actus reus - which are defined by the statute or the common law which creates
the offence. These facts are characteristically the external elements of the
offence: the specific act or omission of the offender, the circumstances in
which the act is done or the omission is made and the result of the act or
omission. The requirement of mens rea in relation to any offence depends on the
external elements of the offence to which it relates. As Lord Hailsham said in
DPP v Morgan [1976] AC 182, 213:
The beginning of wisdom in all the mens rea
cases to which our attention was called is, as was pointed out by Stephen J in
R v Tolson (1889) LR 23 QBD 168, 185,
that mens rea means a number of quite different things in relation to
different crimes.
Leaving aside offences requiring proof of a
specific intent, mens rea is negatived if an act or omission is involuntary, or
if there is a mistake about the circumstances which make the act or omission a
crime or if an element of the crime is a result of the act or omission and the
result is accidental. If the proscribed act is done or omission is made without
these negativing factors, the offender is said to have a "general
intent" or mens rea to commit the offence.
and
45.
... in Citybase Property Management Ltd v Kam Kyun Tak (No 1) [2003] 2
HKC 98, Ma J, in the course of finding a defendant guilty of civil contempt in
breaching an order requiring her to cease using premises for the processing of
food, observed (at p.103):
Unlike in criminal proceedings, where mens
rea has to be demonstrated, there is no requirement in civil contempt
proceedings to show that the alleged contemnor intended to disobey the order
(i.e. his conduct was contumacious). It is sufficient to proof (a) that he knew
the facts which are said to make his act or omission a contempt and (b) that
such act or omission was not accidental.
Although I would doubt, with respect, the
dichotomy which Ma J drew between the liability for crime and the liability of
civil contempt, it is clear that liability for civil contempt does not depend
on a contumacious intent.
46.
Of course, a contumacious disobedience to an order negates the
possibility that the disobedience is "casual or accidental and
unintentional" and is relevant to the penalty to be imposed for a contempt,
but it is not an element to be established in cases of civil contempt by a
party directly bound by an order. If the mens rea in civil contempt were to
extend to a contumacious intention to breach the order made by court, it would
go beyond the mens rea applicable to criminal offences. [Emphasis supplied.]
53.
Whilst the observations were passed in connection with a civil contempt
and thus are obiter, they seem to me to be a clear indicator that proof of a
specific intent to interfere with the administration of justice would not be a
prerequisite for liability for criminal contempt. The first emphasised passage
clearly establishes, in terms, that a contumacious intent is not necessary to
found liability for a civil contempt whilst the second emphasised passage, in
my judgment, only permits of the interpretation that such an intent is not
necessary to found liability for criminal contempt - for if it were, requiring
such an intent in respect of civil contempt would put it no more than equal to
and not "beyond the mens rea applicable to criminal offences".
54.
Further support for the view that, in Hong Kong, specific intent is not
a prerequisite to found liability for criminal contempt is to be found in the
decision of Chan CJHC and Keith J in Secretary for Justice v The Oriental Press
Group Ltd and Others [1998] 2 HKLRD 123. Those proceedings involved two aspects
of contempt, first, scandalising the court by the publication of a series of
offensive newspaper articles and, second, by a sustained, physical,
paparazzi-style pursuit of a judge who was the focus of the newspaper articles.
55.
The court specifically considered the issue of the nature of intention
required to be proven in the second situation. When reviewing the judgment of
Lord Denning MR in A-G v Butterworth, supra, the court said, at 155:
Donovan LJ did not share this view. On this
issue, Donovan LJ said at pp.725 to 726:
The question is whether the respondent's
action was calculated so to interfere, and this involves a consideration not of
their state of mind on this particular point out of the inherent nature of
their act... I conceive the position, however, to be this. A-G v Odhams Press
Ltd ex parte Attorney General makes it clear that an intention to interfere
with the proper administration of justice is not an essential ingredient of the
offence of contempt of court. It is enough if the action complained of is
inherently likely so to interfere. A newspaper article accusing a man of crime
after proceedings have been begun and before his trial plainly answers that
description. But there may be other actions where the likely effect is not
self-evident, and further enquiry will have to be made... in order to determine
the likely effect of what the respondents did one has to enquire into their
motives. The mere fact that the court has to do this cannot, in my view,
involve the consequence that contempt of court has not been committed.
In other words, Donovan LJ treated the
enquiry into the motives of a person charged with contempt of court by
interfering with the administration of justice as being relevant to what the
likely effect of the alleged act of contempt would have been. He did not hold
that an intention to achieve that end it is a necessary ingredient of contempt
of court.
We prefer the view of Donovan LJ. As we
have said in the context of the mens rea required for the offence of
scandalising the court, the importance of public confidence in the due
administration of justice justifies Donovan LJ's approach.
56.
That decision was appealed, sub nom, WONG Yeung Ng v Secretary for
Justice [1999] 2 HKLRD 293: the appeal was dismissed. Albeit that the specific
question of mens rea was not a ground of
the appeal, Mortimer V-P said, at p.315:
Conclusion on the pursuit of Godfrey JA
Much of the reasoning under scandalising
contempt is relevant to this contempt. It is not necessary to repeat it.
For my part, therefore, I am satisfied that
the Divisional Court applied the correct principles of law and that it was
correct in finding that the necessary act had been done with the requisite
intention. I would dismiss the appeal on this contempt.
57.
In the circumstances I am satisfied that the applicant need only show
basic intent, that is that the respondents intended to perform the acts which
constituted the actus reus of the contempt.
The nature of the act
58.
The act which is said to constitute contempt of court is conduct
calculated to prejudice or interfere with the due administration of justice, is
inherently likely to do so.
59.
In Attorney General v Times Newspapers Ltd [1974] AC 273, Lord Diplock
indicated that:
The due administration of justice requires
first that all citizens should have unhindered access to the constitutionally
established courts of criminal or civil jurisdiction of the determination of
disputes as to their legal rights and liabilities; secondly, that they should
be able to rely upon obtaining in the courts the arbitrament of a tribunal
which is free from bias against any party and whose decision will be based upon
those facts that have been proved in evidence adduced before it in accordance
with the procedure adopted in courts of law; and thirdly that, once the dispute
has been submitted to the court of law, they should be able to rely upon their
being no usurpations by any other person of the function of that court to
decide it according to law. Conduct which is calculated to prejudice any of
these three requirements or to undermine public confidence that they will be
observed is contempt of court.
60.
There is no merit in the initial contention by 1st and 2nd respondents,
albeit not later pursued, that the court is confined to already established
examples of contempt of court. “Contempt
of court has indeed been called ‘the Proteus of the legal world, assuming an
almost infinite diversity of forms.’” (per Kriegler J in S v Mamabolo 2001 (3)
SA 409, §13). It will be a matter of
fact and degree in every instance whether or not the alleged contempt is made
out. “Whether such a risk has been
established will depend on the circumstances of each case including the nature
of the act done or the language of the publication used.” - The Oriental Press
Group Ltd and Others, supra.
61.
"The offence consists in interfering with the administration of the
law; in impeding and perverting the course of justice... It is not the dignity
of the court which has offended... it is the fundamental supremacy of the law
which is challenged.” per Lord President Clyde in Johnson v Grant 1923 S.C.
789, 790; “...criminal contempt of
court...involve[s] an interference with the due administration of justice
either in a particular case or more generally as a continuing process.” per
Lord Diplock in A-G v Leveller Magazine Ltd [1979] AC 440; “... the aim and
purpose of the law of contempt is to prevent interference with the due
administration of justice", per Lord Ackner in A-G v Times Newspapers Ltd
and Another [1992] 1 AC 191, 209B; "The issue is whether there was a real
risk that public confidence in due administration of justice would be
affected", The Oriental Press Group Ltd and Others, supra. It is not
confined to pending cases but includes an interference with the proper
administration of justice as a continuing process (Butterworth, supra)
62.
What must be shown is that the conduct would generate “...a real risk of
interference as distinct from a remote possibility that [it] would undermine
public confidence in the administration of justice” Solicitor-General v Radio
Avon Ltd, [1978] 1 NZLR 225, 234; "... not ... that the administration of
justice in the relevant proceedings has been wholly frustrated or rendered
utterly futile. But it is, we think, necessary to show some significant and
adverse effect on the administration of justice.” A-G v Newspaper Publishing
Plc [1997] WLR 926, 936; “...a good
chance as opposed to a mere possibility.... a real risk that public confidence
in the due administration of justice would be undermined.” The Oriental Press
Group Ltd and Others, supra; "The
risk or prejudice must be serious, real or substantial." per Dubin and Brooke JJA in R v Kopyto (1988)
47 DLR (4th) 213, 290 cited with approval in
WONG Yeung Ng, supra.
63.
It is fundamental that to behave in a manner towards a potential witness
in such a manner as to have an adverse effect upon that witness’s willingness
to testify or a witness who has already testified will constitute an
interference with the administration of justice. Authority in support of this
proposition is readily to be found, including in the various decisions relied upon
in these proceedings: see, for example, Lord Denning MR in Butterworth, supra
at 719 “For there can be no greater
contempt than to intimidate a witness before he gives his evidence or to
victimise him afterwards having given it.”
64.
The underlying rationale was expressed by the Lord Chief Justice in
Simon Runting (1989) 89 Cr. App. R. 243, 245 in these terms:
It should be made clear at the outset that
the law insists that a defendant and witnesses, and indeed anyone else who has
a duty to perform at a court, whether in a criminal trial or in a civil trial,
is entitled to go to and from the court... without being molested or assaulted
or threatened with molestation.
There are two reasons for that, it seems to
this court. The first is, there must be nothing to create in the minds of such
persons any fear such as to make them less likely to wish to come to court to
carry out their proper functions. The second reason, which is perhaps more
difficult to put adequately into words, is this: that the authority and dignity
of the court require that those who attend the court to carry out their duties
should be allowed to do so without let or hindrance, and again without fear of
molestation. [Emphasis supplied]
65.
It is fundamental to the due administration of justice that, just as a
litigant is able to have confidence in the application of the protection
afforded to him in the course of litigation by legal professional privilege, so
should a person attending court to discharge a duty be able to have confidence
that his communications will not be the subject matter of surreptitious
monitoring by others.
66.
To tolerate a situation whereby conversations whether related or
entirely unrelated to proceedings before the court, conversations perhaps
intensely personal in nature, may be recorded at will and the recordings used
at the whim of the person making them, is to invite a distrust of the judicial
system by potential users.
67.
It seems to me self-evident that there is a substantial risk that
litigants and potential witnesses who are required to attend court
understandably will be deterred from attending "... to carry out their
proper functions" if a perception
exists that their consultations and conversations may be subject to regular or
random eavesdropping and recording by a third-party, even though those
consultations and conversations involve no misconduct on their part.
68.
In the words of Lord Denning in
Butterworth, supra, at 719:
If this sort of thing could be done in a
single case with impunity, the news of it would soon get round. Witnesses in
other cases would be unwilling to come forward to give evidence...
69.
It follows that I am satisfied that the conduct of unauthorised
recording of conversations of witnesses or potential witnesses at court will
constitute a contempt of court.
Applicability to this application
70.
I turn to consider the application of those principles to the facts of
this application.
71.
I am prepared to accept, for the purposes of this application, that the
1st respondent was motivated initially to set the recordings in train as a
result of overhearing the conversation involving Sparerib - rather than simply
as a general tactic as part of the defence case - and that the 2nd respondent
was motivated by friendship.
72.
I have a measure of understanding for the view that she expressed in
evidence that if she had simply reported the conversation which she had
overheard she may have been disbelieved.
73.
That her motive may have arisen out of loyalty to her husband and been
driven by her fears of collusion between prosecution witnesses, which turned
out to have been well founded, does not prevent her conduct from constituting a
contempt of court. At the risk of repeating that which is already
well-established, motive and intention are two different concepts. Those
matters are relevant to any punishment that is to be imposed.
74.
I accept that in certain circumstances such a well-founded motive may go
further: it may reduce the contempt to one that is to be regarded as purely
technical in nature and not worthy of pursuit. I am, however, firmly of the
view that such is not the case here.
75.
The conversation which was overheard by 1st respondent occurred towards
the end of April 2007. The 2nd respondent was recruited. Recording commenced on
7 May. What 1st respondent said she was hoping to achieve, an aim that was
adopted by 2nd respondent, was to obtain corroboration of the intention
implicit in the conversation she had overheard. On their own evidence they had
obtained that corroboration by, at latest, 10 May, the content of that early
recording being regarded as particularly significant by the judge who singled
it out as being “open to the interpretation that suggestions are being made as
to how to answer future cross-examination”.
76.
Yet despite being armed with what was plainly sufficient evidence to
support her claim, they continued over the following four months to make
further recordings and thereafter deliberately withheld the information which
all along was in their possession until the very last day of the prosecution
case.
77.
I do not accept that 1st and 2nd respondents were ignorant of the
significance of the material which came into being on 10 May. The 1st
respondent was an experienced police officer who was looking for confirmation
of collusion and who could not have been other than fully aware of the fact
that the recording of 10 May was just what she needed. It would stretch
incredulity to breaking point to suggest that she had not discussed this issue
with her husband who, as a retired police officer also, would have been as
aware as she would have been of the implications of that recording.
78.
That she was aware of its significance is clear from her own evidence
during the voir dire when she indicated that it had been her intention, at
first, to only produce that recording.
79.
Recording beyond 10 May was not for corroborative purposes. There was
plainly a desire to secure a tactical advantage for the defence with a view to
manufacturing an acquittal.
80.
In the circumstances of this case, not only did the conduct of 1st and
2nd respondent prospectively constitute an interference with the proper
administration of justice as a continuing process but it had an immediate
adverse effect on the proceedings in progress.
81.
If the allegations made by 1st respondent supported by the recording of
10 May had been made known to the judge it seems to me highly probable that he
would have been able to take steps which would have resulted in the trial
beginning de novo or, at the very least, being aborted at that stage saving a
substantial amount of judicial time not to mention a vast amount of public
funds.
82.
I am satisfied that the applicant has established beyond reasonable
doubt that the conduct of each of 1st and 2nd respondents amounts to a contempt
of court.
83.
The 3rd respondent is in a somewhat different position from two
perspectives: first, his actual conduct and, secondly, the nature of his role
in regard to the proceeding trial.
84.
As to his conduct, the agreed facts established that he was not involved
directly in any way with the creation of the recordings and the applicant has
accepted that 3rd respondent was not initially aware of the nature and
provenance of the recordings. There is no information as to when he did become
aware of that.
85.
His activities were limited to facilitating the conversion of those
recordings, which already existed, into written form. For the reasons I have
given it is the making of the recordings which constitutes the contempt of
court. The creation of transcriptions, and their translation, add nothing to
the effect on the administration of justice of the conduct of 1st and 2nd
respondents and, in themselves, do nothing to adversely affect it.
86. As to the second aspect, I note that he was
effectively fulfilling the role of counsel’s instructing solicitor throughout
the trial. There can be no doubt that once he became aware of the provenance of
the recordings, and what they sought to establish, it was incumbent upon him to
ensure that the matter was invited to the attention of counsel forthwith in
order that the judge be informed of the position expeditiously. That singular
failure on his part and his acquiescence in the conduct of 1st and 2nd respondents,
however, does not go sufficiently far in my judgment as to found criminal
liability for contempt of court, whatever other consequences it may have.
87.
Consequently, I am not satisfied that the applicant has established his
case against 3rd respondent.
88.
The matter is to be relisted, in accordance with counsel’s diaries, for
submissions on the question of penalty in respect of the 1st and 2nd
respondents.
(A
R WRIGHT)
Judge of the Court of First Instance
Mr Gerard J X McCoy, SC, Counsel-on-fiat,
for the Applicant
Mr. Lawrence Lok, SC, leading Mr. Bruce
LAU, instructed by Messrs. Anthony Kwan & Co. for 1st and 2nd Respondents
Mr. Toby Jenkyn-Jones and Ms Anita WONG,
instructed by Messrs. Damien Shea & Co. for the 3rd Respondent
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