Misuse of High Level Connections Could Amount to Perverting the Course of Justice

Introduction
On 29 February 2016, the politically high-profile businessman Lew Mon-hung was convicted in the District Court of doing acts tending and intended to pervert the course of public justice, with a sentence of 18-month imprisonment. The prosecution and conviction are based upon his emails and letters sent to the Chief Executive and the Commissioner of the Independent Commission Against Corruption (“ICAC”, and the Commissioner “ICAC Commissioner”) in early January 2013, asking for their termination of the ICAC’s investigation against him at that time. Although Lew has mentioned that he will appeal against the conviction, the case illustrates that the wordings used in a request made to officials for termination of investigation can put the maker of the request at even greater risk.

The Offence
The elements of the offence “doing acts tending and intended to pervert the course of public justice” (the “Offence”), as discussed in the judge’s verdict on Lew’s case, following HKSAR v Wong Chi Wai (2013) 16 HKCFAR 539, include the following:

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 Case

The request to stop the ICAC investigation
On 9 January 2013, Lew sent an email to the Chief Executive and an email to the ICAC Commissioner (the “Emails”) requesting, respectively, the Chief Executive and the ICAC Commissioner to stop the ICAC’s investigation against him in relation to a suspected bribery case involving Pearl Oriental Oil Limited (Stock Code: 632). The Emails mentioned Lew’s contribution in helping the Chief Executive to win the position in the election and his request of the Chief Executive to communicate with the ICAC in respect of his case. Lew threatened in the Emails to “fire a political bomb” if his request is not satisfied.

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
Lew’s argument before the court was mainly on the interpretation of the content of the Emails and the Letter. In terms of the elements of the Offence, his defences are that the Emails and the Letter do not have a tendency to pervert the course of justice (for the alleged reason that neither the Chief Executive nor the ICAC Commissioner has the power to stop the ICAC investigation), and he was not intended them to have such a tendency. Both defences were rejected by the Court, and the Court found that all the elements of the Offence have been satisfied. As the major disputes are on the interpretation of the contents of the Emails and the Letter, in finding Lew guilty of the Offence, the judge gave detailed analysis of the contents of the Emails and the Letter in his verdict.

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
Notwithstanding Lew’s repeated emphasis on his lack of intent to intervene any proper investigation of ICAC, the judge inferred such an intention from the content and wordings of the Emails and the Letter. As the judge opined at the end of the verdict, the proper course to deal with investigation or prosecution by law enforcement authorities is to defend oneself in the legal procedures. Making any threat in an attempt to stop such investigation or prosecution is not the right way.

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.

Published by ONC Lawyers © 2016