Sentencing – Conspiracy to pervert course of public justice – Solicitor on behalf of client seeking to gain access to fragile potential prosecution witness – Whether original sentences manifestly inadequate

HKSAR v KANJANAPAS,
CHONG KWONG DEREK
[2009] 6 HKC 135

Court of Appeal
Criminal Appeal No 248 of 2006 and
Application for Review No 8 of 2006
Ma CJHC, Tang VP and Wright J
7, 21 May 2009

1st applicant, in person, absent.
Jonathan Caplan QC, Peter Duncan SC and Derek Chan (Leung & Lien) for the 2nd applicant.
Clare Montgomery QC, Graham Harris and Benson Tsoi (Pang Wan & Choi) for
the 3rd applicant.
Martin Wilson QC and Roger Beresford (Direction of Public Prosecutions) for the
respondent.

The 1st, 2nd and 3rd applicants were convicted after trial of conspiracy to pervert the course of public justice. They sought leave to appeal against the sentences of three years, two and a half years and four years imprisonment respectively. The Secretary for Justice also applied for a review of sentences against the 1st and 3rd applicants.

The conspiracy was instigated by the 1st applicant to gain access to Becky, his secretary who was assisting the ICAC with their investigations and who eventually joined the witness protection program.With the knowledge that Becky was a fragile person, the attempts to gain access to her involved an element of intimidation to try to persuade her not to co-operate further or at all with the authorities. The 2nd applicant was the girlfriend of the 1st applicant and a good friend of Becky. Through the suggestion of the 3rd applicant, a solicitor, she instructed lawyers to initiate habeas corpus proceedings and swore an affirmation which contained untrue statements. In addition to the instigation of legal proceedings, the 3rd applicant was also responsible for the deliberate and extensive involvement of the media with the intention of revealing the identity of Becky.

Held, dismissing the 1st, 2nd and 3rd applicants’ applications and allowing the applications for review by the Secretary for Justice:

Per Ma CJHC and Wright J (Tang VP dissenting)

It was self-evident that any attempt to interfere with a witness struck at the very fabric of the administration of justice. When the attempt involved, as in the present case, intimidation in the form of seeking by quite extraordinary means to gain access to the witness, and a public exposure of that witness with the assistance of the press, public interest demanded that a clear message be sent by the courts to reflect the abhorrence of the conduct.

The use of third parties by the 1st applicant to achieve his ends was itself an effective form of intimidation and an aggravating feature. It was a further aggravating factor that lawyers were involved. The pressure felt by a fragile witness would have inevitably increased when asked by a close friend to contact
an unknown lawyer and to be given the impression by that lawyer that he was acting professionally for her when this was not what she wanted.

It was also an aggravating feature for the 1st applicant that habeas corpus proceedings, ostensibly for the benefit of Becky but in reality not, were instituted.
The purpose of the proceedings was to demonstrate that, notwithstanding that she was in some form of protective custody of the ICAC, the 1st applicant was able to obtain access to her and would stop at nothing to achieve that end.

The sentence of the 2nd applicant was not wrong in principle or manifestly excessive. She was evidently aware of the fact that Becky was fragile and must have been aware of the anxiety the attempts to get to her would produce. Nevertheless, she was a willing participant to the conspiracy. She instructed lawyers to institute habeas corpus proceedings despite being told by Becky that she was ‘safe and sound’. She also swore untrue affirmation in those proceedings.

In respect of the 3rd applicant, it was a serious aggravating feature that he was acting in his capacity as a solicitor in the conspiracy. It was obvious that for a solicitor, as an officer of the court, to be involved in a conspiracy to pervert the course of public justice and, further, to make use of the law’s machinery to achieve nefarious ends, struck at the very heart of the administration of justice,
severely undermining the public’s and the court’s trust in legal practitioners.

Strong measures were needed to preserve the public confidence in the system by which law and order was enforced in society. The personal circumstances of an individual defendant carried less weight in cases of this nature than they would in relation to some other crimes.

Per Tang VP
The sentences could not be regarded as unduly lenient. They did not fall outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. It was clear that the judge had not overlooked any of the aggravating factors in this case. Sentences should not be increased merely because in the opinion of the court the sentence was less than the court would have imposed.