Lawyer's attempt to explain breaching court's gagging order 'defies imagination'
Barrister Kevin Egan was untruthful when he testified he had not breached a court's gag order by disclosing the identity of a participant on the ICAC's witness protection programme to others, a judge said yesterday.
Finishing his 150-page judgment, Chief District Judge Barnabas Fung Wah also ruled that there was no 'mala fides (bad faith) whatsoever' on the part of the anti-graft body in its handling of the perversion-of-justice case. This followed strong allegations from defence that the commission had destroyed crucial evidence and misled the court.
On Monday, the judge convicted Egan, 59, of disclosing the identity of Becky Wong Pui-see, a participant in the witness protection programme, to a South China Morning Post reporter, Magdalen Chow Yin-ling, in July 2004.
But he acquitted him of a charge of conspiracy to pervert the course of justice, while finding the other three defendants, solicitor Andrew Lam Ping-cheung, 54, former chairman of Semtech International Derek Wong Chong-kwong, 38, and Wong's lover, Mandy Chui Man-si, 26, guilty of the charge.
Lam, Wong, and Chui were accused of involving the Court of First Instance and the media to pressure the ICAC into releasing Becky Wong, who was Derek Wong's secretary and who they worried would give evidence to the ICAC against him in a market-manipulation investigation.
Both lawyers were acquitted of a joint charge of conspiracy to disclose the identity of Becky Wong.
Egan had not been a truthful witness, the judge said yesterday when giving his reasons for the verdicts. The barrister, who launched a habeas corpus application supposedly on behalf of Becky Wong, testified he was on the phone explaining the situation of the proceedings to Lam while making sure that he did not breach a judge's gagging order on Ms Wong's identity. Judge Fung said yesterday the claim 'defies imagination'.
But he said he did not convict Egan of perverting justice because he could have acted only on the instructions of the other three, who gave him the impression that Becky Wong was held by the ICAC against her will. 'I am not sure if he knew it was a sham,' he said.
Looking at the pattern of phone calls between Lam and a Sing Tao Daily reporter, Carmen Hsu Hiu-yee, the judge found that Lam did 'switch on all the machines involving the press' to fight the ICAC. 'He used Carmen Hsu as part of his machines,' he said.
But the judge found nearly all the prosecution witnesses credible. He believed that Becky Wong stayed with the ICAC voluntarily, and said Ms Chow stood by her evidence firmly. The judge said despite the defence counsel's attack on the credibility of former legal clerk Aaron Nattrass, who claimed that Lam tried to influence an ICAC witness, he believed Nattrass' evidence. 'He had nothing to gain, but everything to lose,' he said.
The judge disagreed with defence allegations that the ICAC intentionally misled the court in July 2004 by saying that Becky Wong was under witness protection when the commission had not yet approved this. He said the most important thing was that Ms Wong had already given her consent to enter the programme.
The commission's destruction of recordings of intercepted phone calls that the defence claimed was crucial evidence was not an act of bad faith and did not affect his decision, the judge said.
The defence counsels will give evidence in mitigation today.