OVERVIEW
This is a common-law offence committed where a person embarks on a course of conduct which has a tendency to, and is intended to, pervert the course of public justice.
The offence may arise from acts done with the intention of concealing the fact that a crime has been committed or the identity of the person who committed an offence.
We were recently involved in an important case defending a barrister of many years' experience before the Court of Final Appeal, resulting in his acquittal.
Examples of this type of offence include:
- Concealing Crimes: Swapping seats with a driver after an accident to protect the actual driver from breathalyser tests or prosecution.
- Interfering with Evidence: Tampering with, destroying or hiding exhibits needed for a criminal trial.
- Tampering with Witnesses: Intimidating, bribing or persuading a witness to alter their statement, lie in court or fail to appear.
- Legal Practitioner Exposure: Lawyers, solicitors or barristers may cross the line into criminal liability if they actively help clients manufacture false alibis, coach witnesses to fabricate facts or knowingly present fraudulent evidence to a court.
COMMON-LAW DEFINITION
HKSAR v Lew Mon Hung（劉夢熊）, FACC 24/2018; [2019] HKCFA 22
In HKSAR v Lew Mon Hung（劉夢熊）, FACC 24/2018; [2019] HKCFA 22, the Court of Final Appeal stated that the offence is "the doing of some act which has a tendency and is intended to pervert the administration of public justice".
The actus reus is an act with the prohibited tendency. The mens rea is an intention to pervert the course of justice. The offence is complete even if the act does not actually interfere with justice.
The prohibited tendency must be capable of impairing or preventing a court or competent judicial authority from administering justice. It must relate to court or tribunal proceedings that are actual, imminent, probable or possible.
The relevant court or tribunal proceedings do not need to have started when the defendant acts.
The offence may still be committed where those proceedings are only "imminent, probable or even possible", provided that the act has the required tendency and is intended to frustrate or deflect those proceedings.
Interfering with a law-enforcement investigation is not, by itself, sufficient. It may constitute the offence where the interference has the tendency, and is intended, to pervert the course of justice in proceedings that may result from that investigation.
ELEMENTS OF THE OFFENCE
An Act
The defendant must do an act. Although the offence is sometimes described as "attempting" to pervert the course of justice, it is a substantive offence. The act does not need to succeed or actually interfere with the administration of justice.
A Tendency to Pervert the Course of Justice
The act must have the prohibited tendency: it must be capable of impairing or preventing the capacity of a court or competent judicial authority to administer justice. Whether an act has that tendency is assessed objectively in light of the circumstances.
What is "tendency"?
It is a question of fact. A tendency is the objective capacity of the act to frustrate, deflect, impair or hinder the proper administration of justice. The prosecution does not have to prove that justice was actually obstructed or that a miscarriage of justice occurred. The court instead considers the nature of the act and all the circumstances to decide whether it was capable of producing that prohibited effect. Unlawful conduct alone is insufficient unless it has the necessary connection with actual or possible judicial proceedings.
A Connection with Judicial Proceedings
The tendency must concern court or tribunal proceedings. However, the proceedings need not have commenced when the act is committed. The acts can be committed when proceedings are "imminent, probable or even possible". Conduct that is unlawful but has no tendency to interfere with such proceedings does not constitute this offence. Interference with a law-enforcement investigation is therefore insufficient by itself, unless it tends and is intended to pervert the course of justice in proceedings that may result from the investigation.
Intention to Pervert the Course of Justice
This is the subjective element of the offence. The prosecution must prove that the defendant acted with the specific purpose of frustrating, deflecting or otherwise interfering with the course of justice. It is unnecessary to prove that the defendant understood the precise legal meaning of "the course of justice"; what must be proved is an intention to interfere with the ordinary and proper administration of the law.
Maximum Penalty
Default penalty for indictable common-law offences: Under section 101I(1) of the Criminal Procedure Ordinance (Cap. 221), the default maximum penalty for an indictable offence for which no penalty is otherwise provided by an Ordinance is 7 years' imprisonment and a fine.
Perverting the course of public justice: Section 101I(5) expressly removes that seven-year restriction for this offence. A person convicted of perverting the course of justice at common law may be sentenced, at the court's discretion, to imprisonment for any term and a fine of any amount, subject to the sentencing limits that the District Court or a magistrate may lawfully impose.
Seriousness: The courts view this offence with the utmost severity because it strikes at the heart of the administration of justice. A custodial sentence is likely upon conviction.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.