Observations regarding the offence “perverting the course of public justice” in Keith Fong’s case (DCCC 1119/2020)
Conviction was on 9 Feb 2022, with reasons in Chinese only. Keith allegedly bought 10 laser pointers in Sham Shui Po (offensive weapons), struggled when arrested (resisting police), and wiped his phone after arrest (hence perverting justice).
Perverting the course of public justice means to impair or hinder of the ability of a court to administer justice (HKSAR v Lew Mon Hung, CACC 66/2016, 2 Mar 2018).
Court held that purchase of 10 laser pointers could not have been for use of 1 person, so police must want to investigate why they would be used, so phone records showing communication would be relevant (para 181).
CCTV footage showed Keith using his smartphone. Keith also had FB and TG accounts at the time. First leap in logic: He was a frequent smartphone user, so he must hv had FB and TG apps on his phone, used for communication (para 177)
Court held: Wiping the phone of communication records did impair police investigations, and thus constituted an act perverting the course of public justice (para 182-184)
As to intention: Court accepted police officer’s claim that he had warned Keith not to touch his phone after arrest, as it would be seized as evidence
Second leap of logic: EVEN IF he had not been warned, Keith was educated and a student leader. He must hv foreseen the police’s intended investigations, and known that his phone would be relevant evidence for the possession charge (para 185)
EVEN if nobody had told him his phone would be seized, the ONLY reasonable inference is that he understood it would be seized, and that is why he reset the phone (para 189)
Granted a seasoned criminal lawyer may expect that phone records are relevant for a case of conspiracy. But MUST a student have known? for buying laser pointers at Ap Liu St?
To quote a practising criminal barrister in Hong Kong:
Mere speculation is reasonable suspicion, one possibility is beyond reasonable doubt. That’s the new standard.