As Lew Mon-hung's Conviction Tells Us
1. the accused committed acts or a series of acts;
2. the acts or series of acts are with tendency to pervert the course of justice;
3. the accused must have been intended to pervert the course of justice when committing the acts or series of acts; and
4. the acts or series of acts are related to administration of justice in curial proceedings.
In relation to the mental element (i.e. point 3 above), according to the judgment of Ribeiro PJ in HKSAR v Wong Chi Wai, to prove this mental element of the accused “it is necessary to prove that he knew that his conduct would have or that he intended it to have a tendency to pervert the course of justice in relation to the curial proceedings in question” (at paragraph 32).
The request to stop the ICAC investigation
On 10 January 2013, Lew sent a letter to the Chief Executive, with a copy made to the ICAC Commissioner (the “Letter”), again making the same requests. Lew also threatened in the Letter that he would take revenge against the “ungrateful betrayer”, by disclosing political secrets in a letter urging the Chief Executive to resign, if ICAC did not stop its groundless complaint against him and the other people it investigated.
It was these Emails and Letter which result in the prosecution in the present case. Lew has not disputed that it was him who wrote the Emails and the Letter. Nor has he disputed their literal content.
Lew’s defences and the court’s ruling
With regard to the issue of intent, Lew’s counsel put emphasis on the wordings and terms used in the Emails and the Letter, in an attempt to show that Lew, when writing the Emails and the Letter, truly believed that the ICAC’s investigation against him was a political and illegal persecution, and the purpose of the Emails and the Letter was to ask the Chief Executive and the ICAC Commissioner to stop something he truly believed as illegal and an abuse of the judicial system.
However, the judge reached an opposite conclusion upon the reading of the Emails and the Letter. The judge found that the request of reward was the only implication of Lew’s mentioning his own contribution in helping the Chief Executive to win the election. Lew knew the Chief Executive’s overriding power and intended to through that power stop the ICAC’s investigation, as Lew mentioned in the Emails and the Letter about the investigation and asked the Chief Executive to communicate with the ICAC Commissioner in that regard.
Although Lew emphasized that what he wanted to stop was a political and illegal persecution against him, the judge did not find the allegation believable as there was no impropriety in the ICAC investigation. The judge expressly commented that the acquittal of Lew in the Pearl Oriental Oil Limited case is irrelevant for the determination of whether Lew is guilty of the Offence. As a matter of fact, the ICAC’s investigation against Lew led to prosecution for conspiracy to defraud in 2015, in respect of which Lew was acquitted by the jury in the Court of First Instance. However, this piece of fact is not a relevant factor for the judge’s determination of whether Lew is guilty of the Offence. After all, the crucial question is whether Lew, at the time of issuing the Emails and the Letter, had the intention to pervert the course of public justice. As such, the judge found that the only possible meaning of Lew’s request for termination of investigation was to stop the ICAC’s investigation against him which was undergoing.
The judge also found the threat made by Lew that he would “fire a political bomb” and disclose political secrets against the Chief Executive an intimidation for the purpose of intervening the ICAC’s investigation against him. For these reasons, the judge held that Lew intended the Emails and the Letter to have a tendency to pervert the course of justice, and convicted him of the Offence.
Lesson to learn
In fact, a person under investigation by law enforcement authorities should be very careful when communicating with a government official in relation to the investigation against him. Such communication should be avoided whenever possible. It would be desirable for a person under investigation to seek legal advice every time before making any such communication.
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.
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Published by ONC Lawyers © 2016