Introduction

In a recent case HKSAR v Lew Mon Hung [2019] HKCFA 22, the Court of Final Appeal (“CFA”) considered how a threat or intimidation to the Chief Executive of the Hong Kong Special Administrative Region (“HKSAR”) and the Commissioner of ICAC (the “Commissioner”) to halt an investigation would constitute acts to pervert the course of justice.

Background

Mr Lew Mon Hung (the “Defendant”) was the vice-president and executive director of Pearl Oriental Oil Ltd which is a listed company. The Defendant used to be a staunch supporter of Mr CY Leung (the “Chief Executive”), the former Chief Executive of the HKSAR in the 2012 Chief Executive election. However, the relationship between the two turned sour after the Chief Executive assumed office. Days following some public criticism of the Chief Executive’s policies by the Defendant in the media, the Defendant was arrested and investigated by the ICAC on 8 January 2013 in relation to the acquisition of an oil field in the United States by Pearl Oriental Oil Ltd (the “Investigation”).

Upon his release on bail during the Investigation, the Defendant through his personal secretary sent an email to the Chief Executive complaining about the Investigation. In the email, among other things, the Defendant expressed (i) a strong suspicion that the Investigation was orchestrated by the Chief Executive in revenge for the Defendant’s criticism; and (ii) asked the Chief Executive to remind the Commissioner “to ask his [the Commissioner] subordinates to be extra cautious or else a political bomb will be detonated”. On the same day, the Defendant sent another email of essentially identical content to the Commissioner. Subsequently, the Defendant through his personal secretary sent another letter to the Chief Executive, copying to the Commissioner, to urge the Chief Executive to “take decisive measures immediately to halt the persecution” against him and threatened that if the ICAC did not do so, the Defendant would release “shocking insider information” about the Chief Executive in the media.

In August 2013, the Defendant was charged with one count of “doing acts tending and intended to pervert the course of public justice” by the ICAC, on the ground that the Defendant sought by asserting his past dealings and association with the Chief Executive, by threat or by intimidation to influence the Chief Executive and/or the Commissioner to terminate an investigation being carried out by the ICAC (the “Offence”). In February 2016, the Defendant was convicted in the District Court and was sentenced to 18 months’ imprisonment. In March 2018, the Court of Appeal dismissed the Defendants’ appeal. The Defendant then obtained leave to appeal to the CFA.

General legal principles of the Offence

The offence of “doing acts tending and intended to pervert the course of public justice” is a common law offence, which involves (i) doing the act with the prohibited tendency; and (ii) the intention to pervert the course of justice. This offence is committed even where the act with the prohibited tendency does not actually result in interference with the course of justice. In addition, for an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings. It is not necessary for such proceedings to have been instituted at the time of the acts in question but the relevant acts must have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible.

Investigations by law enforcement agencies (e.g. the ICAC) do not by themselves form part of “the course of justice” so that acts which hinder or interfere with their investigations are not sufficient in themselves to constitute a perversion of the course of justice. However, if such acts of interference carry a tendency and are intended to pervert the course of justice in relation to curial proceedings which may result from the investigation, they are capable of founding the offence.

Principal issue before the CFA

The principal issue before the CFA is that, where an accused seeks to cause a person to stop or otherwise interfere with a criminal investigation, is it incumbent on the prosecution to establish that the person approached by the accused could stop or interfere with the criminal investigation by the lawful exercise of a legal power he possesses in order to prove that the accused’s act had a tendency to pervert the course of justice.

CFA’s ruling

The Defendant argued that his act did not have a tendency to pervert the course of justice as the Chief Executive and the Commissioner could not stop or otherwise interfere with the Investigation. However, the CFA rejected the Defendant’s argument and unanimously dismissed the appeal.

The CFA was of the view that it is a question of fact in each case whether a defendant’s act had the tendency to pervert the course of justice. If the act is not proven to have such a tendency, no offence has been committed. In establishing what may constitute a tendency to pervert the course of justice, the CFA considered how the person being approached by the accused is relevantly connected to the investigation or proceedings.

The CFA recognised that the Chief Executive and the Commissioner are, respectively, the head of the HKSAR and the head of the ICAC. The Chief Executive is the person to whom the Commissioner is accountable and he is the head of the HKSAR, and thus is plainly a relevant person connected with the Investigation. Given the unique constitutional and legal position of the Chief Executive, he is undoubtedly in a position to influence or otherwise affect the Commissioner’s and, through the Commissioner, his officers’ handling of the Investigation, if not effectively to stop it altogether. In addition, the Chief Executive is in a position to persuade, or put pressure on, the Commissioner to take steps or adopt courses that are favourable to the Defendant. As for the Commissioner, by virtue of his position, he was directly and most relevantly connected with the Investigation. As the head of the ICAC, there would be many things that he could do, or attempt to do, whether directly or indirectly, and whether administratively or otherwise, to frustrate or delay the Investigation or to interfere with the Investigation or affect its outcome, if not to bring about its termination altogether.

The CFA also made it clear that it is irrelevant whether the Chief Executive or the Commissioner may or may not be successful in influencing or otherwise affecting the Investigation, and concluded that writing to the Chief Executive and the Commissioner asking to stop the Investigation with the threat that otherwise a huge political bomb would be detonated plainly involved a tendency to pervert the course of justice. Despite the prosecution did not adduce any specific evidence to prove how the Chief Executive or the Commissioner could interfere with the Investigation, the CFA did not consider it necessary that any such specific evidence was required based on the reasons explained above.

Conclusion

The answer in each case must depend on the facts. The CFA acknowledged that, depending on the facts, what is true in relation to the Chief Executive and the Commissioner may or may not be true with other office-holders. In the present case, what the Chief Executive and the Commissioner can do (if they want to or are forced to) was sufficient to constitute a tendency to pervert the course of justice, and the attempt to pervert the course of justice need not be successful before the Offence can be established.

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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.