HKSAR v. YEUNG WAI BIRNEY

DCCC1090/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1090 OF 2007

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HKSAR
v.
Yeung Wai Birney

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Before:

Deputy District Judge M. Chow

Date:

26 April 2010 at 2.06 pm

Present:

Mr Gerard McCoy, SC, Counsel on fiat leading Ms Betty Fu, PP of the Department of Justice, for HKSAR
Mr Keith Oderberg and Mr Simon Ng, instructed by Louis K Y Pau & Co., for the Defendant

Offence:

Doing acts tending and intended to pervert the course of public justice(作出多於一項傾向並意圖妨礙司法公正的作為)

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Reasons for Sentence

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1. The Defendant was convicted of a charge of perverting the course of public justice.

2. The Defendant was the instructing solicitor (Lau, Chan & Ko) of DCCC320/2005, Fanny Mak was one of the witnesses in that case.

3. Between 24/11/2005 to 20/1/2006, the Defendant sent 3 letters to Fanny Mak during the period of trial to dissuade her not to testifyin DCCC320/2005.

4. The first letter told Fanny Mak that she had given a witness statement and an affidavit to the police and was served with a witnesssummons. She was told that she was under a duty of confidentiality in a solicitor and client relationship to EC Textiles that sheshould not “aggravate the breach” by going to the Court to give evidence. The letter also delivered a threat of civil actionand disciplinary action. (exhibit P2)

5. The second letter (exhibit P4) informed Fanny Mak that she could apply to the Court to dismiss the witness summons. It also containedthe first letter to the Law Society.

6. The 3rd letter (exhibit P6) was 4 days before Fanny Mak was called as a witness. This was a fax copy of the 2nd letter to the Law Society.

7. Fanny Mak had made replied to the first two letters and they were exhibit P.3 and 5.

8. In both replies, Fanny Mak denied that: –

(1) EC Textiles was her client and she owed no duty to EC textiles.

(2) She was under a legal duty to be a witness.

(3) In the second reply, she asked Messrs Lau, Chan and Ko to apply to the Court to dismiss the summons if they wished.

9. The defence’s mitigation in broad terms was that :-

(1) These letters were drafted by counsel Philip Wong. “the Barrister” in DCC960/2009.

(2) The Defendant acted according to his instruction.

10. My view of the case was that :-

(1) He should exercise his professional judgment whether to send those letters in his own capacity of a practicing solicitor; whetheror not he is a man lack of self-assurance/diffident.

(2) He assumed legal responsibility when he signed the 3 letters. There was no excuse that he had a professional duty to his clientbecause on the face of it was illegal.

(3) The Defence said that the copy of the letter was sent to the Law Society and therefore there was nothing secret about the contentof the letter communicated to Fanny Mak. As I have said in the verdict that the purpose to bring in the Law Society into this matterwas to put pressure on PW1.

Background of the Defendant

11. The Defendant is a man of clear record. He is married and his daughter is now 15 years old. According to the probation officer thathis family relationship seems satisfactory.

12. As the Defendant spent long hours at work, apparently, he has closer relationships with his colleagues. There are a large numberof letters placed before this Court from all his colleagues, ex-colleagues, counsel who have been instructed by him previously andalso from his friends. The Defendant is highly regarded by members of his profession and they described him as being a hardworkingman and a supportive friend. I accepted that in their respective opinions that he is prepared to help and to contribute should hisfriends and colleagues need his assistance.

13. At the time of the trial of the present case, the Defendant was a partner in Messrs Lau, Chan and Ko. In fact, he came from a veryhumble background that he worked his way up from being a messenger to become a solicitor in 1997. He worked hard to strive for hisachievement and now because of his present conviction, not only that it is a fall from grace; it may also ruin his career as a solicitor.

The development of this case

14. The Defendant was arrested in May2007 and charged in December 2007. His trial took place in May2009 and the verdict was in July2009.The long period of adjournment between the date of conviction and the date of sentence was to facilitate the prosecution to takewitness statements from the Defendant and other witnesses in order to made arrest of the Barrister in DCCC960/2009.

15. The trial of DCCC960/2009 took place in March 2010, the verdict is due to expect in May 2010.

16. The Defendant is anxious to know the outcome of his sentence. Understandably this mater has been hanging over his head for a considerableperiod of time.

17. Both the Prosecution and the Defence agreed that the sentence can be proceeded without the verdict of DCCC960/2009. The Prosecutionaccepted that the Defendant had made witness statement to the police and he gave evidence in line with the witness statement.

18. The Prosecution on the last hearing informed this Court that the Defendant was a key witness and his evidence “has materiallyimplicated” the Barrister in DCCC960/2009. He was also “lightly cross examined” to such an extent that it was just “cosmetic”in nature.

19. The Defendant’s conduct in the trial of DCCC960/2009 will inevitably receive credit when come to sentencing.

The Case Law

20. It is beyond doubt that perverting the course of public justice is always regarded as a very serious offence. Public justice isa value which has to be jealously guarded so that confidence in our judicial system can be preserved.

21. In Yeung Wai Sin HCMA1051/2000, the Court held that “anyone who committed this type of offence, albeit unwittingly, should expecta custodial sentence.” Because it “strikes at the very heart of the administration of justice”. AG v Yeung Sau Shing (1981) HKC 129

22. It is true that in Hong Kong, most of the appeal cases of this type of offence showed that “custodial sentence is the norm.”

23. However, there are cases departed from this “norm”. In Nicolas Tse HCMA39/2003, that was a “substitute driver’s” case.The trial court imposed a CSO order.

24. In HKSAR v Wong Shing Yim and others [2003] 3 HKLR 1046, this case involved a large number of defendants, who were from the hawker control team in the then Urban Services Department, wereconvicted of conspiring to pervert the course of public justice as a result of their involvement in a “charade” of arrestinghawkers. The arrests of the hawkers were all pre-arranged; there was no real arrest as such. In essence, information as to the dailyarrest was all-false, including the so called arresting officers.

25. From the particulars of the offence as stated in page 1049, it was a charge of conspiracy to pervert the course of public justice,the scheme involved 19 defendants who were all civil servants, the period of conspiracy covered almost 2 years. From the facts ofthe appeal case, this “charade” of arresting hawkers had been in existing for sometime, each defendant received a suspended sentenceand their terms of sentence were between 3 to 9 months.

26. In the case of Henry Yuen of CACC399/1980, he was a practicing barrister at the time of commission of the various offences.

Charge 1 : Aiding and abetting 3 persons to assault the victim.

Charge2,3,4 and 6 : Inciting others to pervert the course of public justice by making false statements to the police about the assaultOnthe victim.

Charge5 : Attempt to pervert the course of public justice by making false statement to the police about the assault on the victim.

27. This case involved the Eu’s family and their Rolls which had been delivered to the victim’s garage for repairing works to bedone. It ended up with a very “substantial bill”.

28. Henry Yuen came into the picture during the process of negotiation for a lesser price of the bill. There were also 3 other men presentat the scene. At the end of the day, the 3 men assaulted the victim. Henry Yuen in his chamber prepared statement and handed to Mrs.Eu who was also present at the time material time.

29. Henry Yuen also told the others to tell the same story as appeared in his draft statement, which was a false statement. He himselfalso made a false statement to the police. The Court of Appeal upheld the conviction of the 5th charge and substituted a nine months imprisonment suspended for a period of one year because: –

(1) He was activated more by friendship and weakness than by a sustained criminal intent;

(2) Involved persons were given immunity;

(3) He was not a leading actor in the unfortunate event;

(4) His career as a barrister was likely to be finished;

(5) He had been in custody for 6 months; and

(6) There was serious deterioration in his mental and physical condition.

30. Turning to other jurisdictions, the case law showed for this type of offence, they took a more lenient approach.

31. In R v Kellet [1976] QB 372, the applicant was conditionally discharge for 2 counts of attempting to pervert the course of justice to dissuade 2 witnesses fromgiving evidence in his own divorce suit.

32. In R v Taffs [1991] 1 NZLR 69, the appellant, who was a barrister/solicitor practiced in New Zealand, was convicted of wilfully attempted to defeat the courseof justice whereby the maximum term of imprisonment was 7 years. (line 40 to 45 of page 70 of the judgment refers)

33. The Appellant was fined for NZ$5000 for threatening the mother of a witness, that if the witness insisted to give evidence, he wouldbe “publicly humiliated as liar and homosexual.”

34. The mother was a solicitor. Same as the present case, the recipient of the 3 letters was a solicitor.

35. The Court of Appeal in New Zealand considered that the appellant “has been appropriately punished” because: –

(1) The Law Society contemplated disciplinary proceeding.

(2) The Appellant would suffer financially because he had to abstain from practice for a period of time.

(3) NZ$5000 fine was a sufficient penalty for an offender like the appellant without “substantial means.”

The Sentence

36. Having regard to the above cases, there is no doubt that the natures of the above cases are far more serious than the present one.

37. Although in Henry Yuen’s case, he had served a period of 6 months before the appeal was heard. His role in that case was far moreactive that the present one. He drafted the statement and asked others to say the same thing contained in the drafted statements.He himself also gave a false statement to cover the actual facts of the assault case. He actively participated in the whole event.

38. In considering the present case, the Defendant did not draft the 3 letters. There was no evidence to suggest that he contributedany opinion as to the content of the 3 letters. He played his part at the “finishing line” by signing the letters. He was notthe main culprit as such. As a result of this conviction, his career as a solicitor may be jeopardized. He also provided assistanceto the police and the prosecution in DCCC960/2009.

39. For the above reasons, I impose a sentence of 6 months and reduced to 4 months for his assistance to the police and to the prosecution.I also order that the sentence be suspended for 12 months.

M. Chow
Deputy District Judge

Please refer to CACC176/2010 for the relevant appeal(s) to the Court of Appeal.