Introduction
In recent months, many prominent figures in Hong Kong’s political arena have appeared in the headlines of court news; one of them being Mr. Lew Mon-hung (“Mr. Lew”). Mr. Lew, a former executive director of a listed company in Hong Kong and a former ally of the Chief Executive Mr. Leung Chun Ying (“Mr. CY Leung”), is being prosecuted for perverting the course of public justice. Mr. Lew is alleged to have sent two emails and a letter to Mr. CY Leung and the Commissioner of the Independent Commission Against Corruption (“ICAC”) in an attempt to get them to halt an ICAC investigation against him because of his past association with Mr. CY Leung. This article explores the offence of perverting the course of public justice.

Perverting the course of public justice

A common law offence
Perverting the course of public justice is an indictable common law offence in Hong Kong. In essence, the concept of perverting the course of public justice means the deflection, frustration, impairment or hindrance of the ability of a court or tribunal to administer justice in any actual, imminent, contemplated or possible court proceedings. The offence consists of (1) an act or conduct (2) which has a tendency and is intended to (3) pervert the course of public justice.

The course of public justice
The expression ‘the course of public justice’ is directed to courts of law and other tribunals which have the function of adjudicating on or determining disputes. In determining whether a particular act or conduct tends to pervert the course of public justice, one must have regard to the effect of such act or conduct on the court proceedings. However, it is not necessary that such court proceedings are actually in existence at the time of the relevant act or conduct, or whether such court proceedings might ever take place at all. Case law suggests that it is sufficient if such proceedings are imminent, probable or even possible at the time of the alleged wrongful act or conduct.  In the context of criminal proceedings, for example, one may commit the offence by making false statements to police officers during the course of investigations.

Intention and tendency to pervert
For the offence to be established, the wrongdoer must have had the intention to pervert. Such intention is likely to be found if at the material time of doing an act or embarking on the course of conduct complained of, the wrongdoer must also have known or contemplated the possibility of court proceedings so that in doing what he did, he would have realized that such act or conduct would have the tendency to pervert the course of public justice or that he intended this to be the effect.

An act done or conduct embarked with an intention to pervert the course of public justice is insufficient, the act or conduct must also have a clear or manifest tendency to pervert the course of public justice. However, it is immaterial whether the relevant court or tribunal was or would actually have been misled by the relevant act or conduct.

Some examples
Some common acts and conduct capable of amounting to the offence include:-

1.         Making false allegation to the police that another person has committed a criminal offence, causing that other person to be arrested;

2.         Concealing the commission of an offence;

3.         Assisting others to evade arrest (e.g. the Canto-pop star Nicholas Tse was convicted of conspiracy to pervert the course of public justice by allowing another person to falsely present himself in substitution, as the driver in a traffic accident during the course of police investigation);

4.         Publishing matters calculated to prejudice a fair trial.

Sentence
Previously, punishment for perverting the course of public justice was limited to a term of imprisonment for 7 years and a fine under the Criminal Procedures Ordinance (Cap. 221) (the “CPO”). In 2008, the CPO was amended to provide the courts with the discretion to impose any term of imprisonment or any amount of fine depending on the severity of the offence.

For enquiries, please contact our Litigation & Dispute Resolution Department:

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IMPORTANT: The law and procedure on this subject are very specialized 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.