HKSAR v. CHAN SIU MAN AND ANOTHER

CACC 421/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 421 OF 2010

(ON APPEAL FROM DCCC NOS. 930 AND 1442 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 29 October 2010, after a trial in the District Court before Judge Remedios, the first and second applicants were jointly convicted of the charge of conspiracy to offer an advantage to an agent, contrary to s. 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201, that being the first count on the indictment.

2.  The first applicant was in addition convicted of two further charges of conspiracy to offer an advantage to an agent, one charge of conspiracy to defraud, contrary to common law, and one charge of fraud, contrary to s. 16A of the Theft Ordinance, Cap. 210.

3.  In respect of each of the three counts of conspiracy to offer an advantage to an agent and the single count of fraud, the first applicant was sentenced to two years’ imprisonment.  In respect of the remaining count, that of conspiracy to defraud, he was sentenced to two years and six months’ imprisonment.  The judge ordered that six months of the sentence imposed in respect of the first count of conspiracy to offer an advantage to an agent was to run consecutively to the sentence of two years and six months’ imprisonment imposed in respect of the single count of conspiracy to defraud.  This made for a total sentence of three years’ imprisonment.

4.  Concerning the second applicant, in respect of the single count of conspiracy to offer an advantage to an agent of which he was convicted, that being the first count on the indictment, he was sentenced to a term of 16 months’ imprisonment.

5.  On 16 August 2011 the two applicants appeared before us, both seeking leave to appeal.  On that occasion, the first applicant sought leave to appeal his sentence only.  The second applicant sought leave to appeal his conviction.

6.  We heard the application for leave to appeal against conviction first.  Having done so, we allowed the second applicant’s application and, treating the application as the appeal itself, quashed his conviction and set aside the sentence.  We said that we would give our reasons later and did so in a judgment handed down on 25 August 2011.

7.  In light of the fact that the second applicant’s conviction had been set aside, the first applicant sought an adjournment of his application for leave to appeal against sentence in order to consider whether he too should appeal against conviction.  We granted the application for adjournment.

8.  On 6 September 2011, the first applicant filed a notice of application for leave to appeal against conviction out of time.  The application was related to the first applicant’s conviction – jointly with the second applicant – of the first count on the indictment, the charge being conspiracy to offer an advantage to an agent.  The first applicant did not seek to appeal any of his other convictions.

9.  On 22 September 2011, we heard the first applicant’s two applications: his application for leave to appeal against conviction and his application for leave to appeal against sentence.  Having heard submissions, we refused leave in both instances.  We said that we would give our reasons later and do so now.

Background

10.  At all material times, the first applicant was the Chairman of the Hong Kong China Bodybuilding and Fitness Association (the Hong Kong Association), having held that position for a number of years.  The second applicant was a Hong Kong bodybuilding athlete.

11.  The Asian Bodybuilding and Fitness Federation (the Asian Federation) oversees bodybuilding in Asia, having some 40 affiliated members, including the Hong Kong Association.  In addition to being the Chairman of the Hong Kong Association, the first applicant was also the Assistant-Secretary and Chairman of the Judges’ Committee of the Asian Federation.

12.  The international governing body of the sport of bodybuilding is the International Federation of Bodybuilding and Fitness (the International Federation).  It has over 180 affiliated regional and national federations.

13.  As with many other sports, bodybuilding is subject to the ills of doping, that is, to the impermissible used by athletes of performance enhancing drugs.  The World Anti-Doping Agency is an international organisation set up in order to co-ordinate the fight against doping in sport.  It is the producer of the World Anti-Doping Code (the ‘WADA Code’) which is accepted by more than 1,200 sports-related bodies around the world.  In respect of bodybuilding, the WADA Code has been recognised by the International Federation.  Both the Asian Federation and the Hong Kong Association are subject to the Code.

14.  When bodybuilding competitions are held in Asia, the top five winners in all categories of competition are subjected to drug tests.  Two samples are taken, an ‘A’ sample and a ‘B’ sample.  If the ‘A’ sample tests positive and that is disputed by the athlete, the athlete may request that the ‘B’ sample be subjected to testing.  In respect of each athlete, the results of his test on his ‘A’ sample are forwarded to the Asian Federation which is then obliged to notify the International Federation and also the national body to which the athlete is affiliated.

15.  According to the WADA Code, an athlete who fails a doping test will be suspended from competition for two years for the first violation and for life for a second violation.  As to the national body to which the athlete is affiliated, the rules of the Asian Federation state that the national body will itself be fined.

16.  There is no stipulation in the WADA Code or the rules of either the International Federation or the Asian Federation that a period of suspension can be set aside or shortened by the payment of a fine.

17.  In October 2005, the Hong Kong Association sent a team of athletes to the 40^th Asian Men’s Bodybuilding Championships in South Korea.  The games were organised by the Asian Federation.

18.  The second applicant won a gold medal at the Championships while two other Hong Kong athletes also won medals.  In the result, they were required to submit urine samples.  All three athletes were found to have traces of banned substances in their urine.

19.  The results of the drug tests were sent to the Secretary-General of the Asian Federation, a man by the name of Chua, who in turn wrote letters to the individual athletes, including the second applicant, care of the Hong Kong Association.  The letters were all to the same effect.  By way of illustration, the letter addressed to the second applicant informed him that, as a result of failing his test, he being a first offender, he would be suspended for two years.  The letter further informed him that, if he wished, he could have his ‘B’ sample sent for analysis and that he had the right to appeal but any such appeal must be in writing and addressed to the Asian Federation within 21 days.

20.  It was a finding of fact by the judge, one that was not contested before us, that the notification letter sent to the second applicant was never seen by him.  The first applicant was the only one who saw that letter.  Indeed, it was the judge’s finding that none of the athletes who had tested positive were shown their notification letters, the first applicant keeping them in his own possession. 

21.  It was the prosecution case, and the judge so found, that, to enable the second applicant and the other two athletes to continue to participate in competitions, more especially the 2006 Doha Asian Games, the first applicant, as Chairman of the Hong Kong Federation and an experienced administrator of the sport of bodybuilding, conspired separately with each of the athletes to pay a bribe to Chua, the Secretary-General of the Asian Federation, in return for which Chua would arrange matters so that the suspensions would be reduced in length or not put into effect at all.

22.  At trial, it was accepted that none of the suspensions had been put into effect.  In the result, the second applicant was able to compete at the 2006 Doha Asian Games, winning a medal.

23.  The first applicant denied that, in private discussions with Chua and on the basis of the payment of bribes, he had managed to ‘fix’ matters so that none of his athletes were subject to suspension.  It was the first applicant’s case that, while he had spoken privately to Chua and agreed to pay a series of fines, he had made a legitimate appeal, that appeal being based on compassionate grounds.  It was his case that he believed that this was a legitimate way of proceeding.  He denied any element of corruption.

24.  The judge rejected the contention that the first applicant had acted legitimately as he asserted, being satisfied that he had knowingly arranged the payment of bribes to Chua.

25.  The first charge of conspiracy to offer an advantage to an agent alleged that the first applicant had conspired with the national coach, a man named Ho, and the second applicant to offer an advantage in the sum of US$10,000 to Chua.

26.  Ho testified for the prosecution under immunity. He had himself been a bodybuilding athlete and in addition had worked in the administration of the sport before taking on his job as coach.  He therefore had knowledge not only of the rules of competition but also of the administrative and disciplinary rules administered by those bodies which regulated the sport.

27.  It was Ho’s evidence that he was asked by the first applicant to approach the second applicant on the basis that, if the second applicant paid a fine of US$10,000, that would ensure a successful appeal and his suspension would be lifted or reduced, allowing him to compete in the 2006 Doha Asian Games.

28.  Ho testified that, to his knowledge, there was simply no provision in the rules of the Asian Federation allowing for the payment of a fine as a form of substitute for suspension.  He understood, therefore, that any money that was to be paid would be in the form of a corrupt payment, that is, a bribe.

29.  Importantly, Ho testified that his understanding was fortified by the fact that a year or so earlier, at the 2004 Bahrain Games, Chua had informed him that one of the Hong Kong athletes who had admitted to taking banned substances would be suspended.  However, after arrangements had been made for the athlete to pay money, his suspension had not been put into effect.  At the time of the Bahrain Games, the first applicant had been the Chairman of the Hong Kong Association.

30.  At no time in the course of his testimony did Ho say that he confided in the second applicant that the fine of $10,000 that he was being asked to pay was in fact a bribe; he said that he kept this knowledge to himself.

The grounds of appeal against conviction

31.  The first applicant’s grounds of appeal against conviction were all to the same effect, being essentially a repetition of his defence at trial.  In his grounds of appeal, the first applicant asserted that there was no evidence led at trial, or at least no sufficient evidence, to prove that he had made corrupt payments to Chua.  Accordingly, the court had fallen into error in rejecting his assertion that, even if his appeal to Chua on behalf of the second applicant had not been in accordance with standard procedures, it had nevertheless been a legitimate appeal in no way tainted by any form of corruption.

32.  In support of his grounds, the first applicant made reference to a number of passages in our judgment of 25 August 2011 in which we explained how it was that we had allowed the second applicant’s appeal against conviction.

The judge’s findings in respect of the first applicant

33.  The judge rejected the first applicant’s evidence that he believed that it was permissible to lodge an appeal on compassionate grounds in respect of the second applicant (and the other athletes) and to do so on a purely informal basis, speaking privately to Chua, in his capacity as the Secretary-General of the Asian Federation.  The judge noted that nowhere in the rules of any of the organisations was it said that a suspension may be lifted or reduced upon payment of a fine.  That would have been a fact known to the first applicant.  Equally, nowhere in the rules of any of the organisations was it permitted for an appeal to be made orally rather than in formal terms and in writing.  That too would have been known to the first applicant, he being an experienced senior administrator in the sport.  As the judge observed:

“It was on any reasonable rational and objective view inconceivable and unbelievable that an appeal and decision on appeal could all be done orally and behind the scenes so to speak. It is incomprehensible that there would be such a lax and informal method to appeal such severe penalties imposed and the decision allowing the appeal could be made so informally made and more so for [the first applicant] to believe that this could be the case. I do not believe that [the first applicant] thought or believed the rules in the sport of Bodybuilding were any different or more relaxed than other sports and that his appeal was at all legitimate.”

34.  The judge continued by observing:

“[The first applicant] never went before the ‘Special Hearing Committee’ to put forward his appeal or any mitigation. He never wrote down his appeal or mitigation for his three athletes. How then was the committee to know what were the grounds of appeal? Is [the first applicant]’s account that an appeal was heard upon what he told Chua orally over a telephone conversation to be taken seriously when an offence as grave as this has been committed? I do not believe this to be so.”

35.  The judge further rejected the first applicant’s assertion made during the course of the trial that he believed that an appeal based on compassionate grounds, essentially on the grounds that the athletes deserved another ‘chance’, was permissible.

36.  During the course of the trial, the first applicant asserted that the resolution of matters by payment of fines had been sanctioned by the International Federation.  This too was rejected by the judge who said:

“[The first applicant] was adamant the appeal and reduction in the suspension and the increased fine was sanctioned by the International Federation. [The first applicant] however did not apply for any documents from the International Federation to support this as the Hong Kong Association was not under the International Federation. This is an absurd explanation for not requiring relevant documents from the International Federation. Clearly, [the first applicant] did not apply for any documents from the International Federation because there were no supporting documents. …”

37.  The judge went on to note that, far from in any way supporting or condoning the first applicant’s actions, an ad hoc disciplinary commission of the International Federation had investigated the matter and in its report had been critical of all aspects of the first applicant’s asserted conduct, finding that any appeal of the kind described resulting in a lifting of suspension in return for payment of fines, had been ultra vires.

38.  In finding that the primary evidence against the first applicant was such that the only irresistible inference to be drawn was that he had paid bribes to Chua, the judge made mention of the fact that none of the letters notifying the athletes of their suspension were ever passed on to the athletes:

“The letters were addressed to the athletes but sent to them c/o the Hong Kong Association. There was no good reason why the letters addressed to the athletes were not passed on to the athletes. One wonders why [the first applicant] did not do so when it was such a serious matter. The only irresistible reason is that he wanted to keep the “formal” matter of their suspension unknown to others so that he could help “fix the suspensions”, that is, to shorten them with as few people knowing as possible.”

Discussion

39.  It should be said that there were a number of other areas of evidence in respect of which the judge came to findings of fact, those findings generally enabling the judge to draw the inference that the first applicant had conspired with the national coach, Ho, to offer corrupt payments to Chua in return for which the second applicant's suspension would be lifted.

40.  When considered in context, the evidence against the first applicant was overwhelming.  The inference to be drawn that the first applicant had conspired with Ho to make corrupt payments to Chua was, on the basis of the primary facts proved, the only reasonable inference to be drawn.

41.  It is understandable that the first applicant did not originally seek to appeal his conviction.  He only did so after the second applicant’s conviction had been quashed, attempting as best as he could to tie his fortunes to those of the second applicant.

42.  The second applicant’s case, however, was remarkably different from that of the first applicant.  He was an athlete only, and not an administrator.  There was no evidence that he had any real knowledge of disciplinary rules and procedures.  He was never informed, directly or indirectly, than any fine he paid would be in the nature of a corrupt payment in order to ‘fix’ matters for him.  Nor was there any evidence that he understood this to be the case.  In paragraphs 51 and 52 of our judgment, we said the following:

“It is to be remembered that, on the evidence, the [second] applicant, who had no previous finding made against him of substance abuse, had only ever involved himself in the sport as a competitor and not as an administrator. Indeed, it was his defence that, having been assured that payment of a fine of US$10,000 would result in a successful appeal (of whatever form), he was prepared to pay the fine and place his trust in the hands of the administrators, specifically in the hands of the first applicant, the Chairman of the Hong Kong Association.

In these circumstances, in our judgment, it was not sufficient for the judge, on the limited finding of fact that the applicant must have known the rules of competition, to infer thereby that he must also have known of the true nature and extent of the possibly more arcane rules related to disciplinary proceedings, considerations of clemency and matters of that kind, matters which in a great many international sports are more the province of the administrators than the athletes.  If there was evidence upon which the judge was able to draw the inference that the applicant must also have known of these rules it was incumbent on her to identify that evidence.  This, with respect, she failed to do.”

43.  By contrast, the first applicant was an experienced administrator who, as the judge found, must have had at least a reasonably good working knowledge of rules concerning matters of discipline.  More than that, he was the one who dealt directly with Chua: he was at the centre of what happened, his actions providing a compelling basis upon which the inference was to be drawn that he knew full well that he was involving himself in the payment of corrupt money in order to have the suspension of the second applicant lifted.

The grounds of appeal against sentence

44.  The first applicant advanced four grounds of appeal against sentence, his submission being that the overall sentence of three years was manifestly excessive.  The four grounds may be summarised as follows:

i.   The judge failed to give due weight to the applicant’s previous good character, integral to this being his “fall from grace”

ii.   The judge failed to take into account evidence which revealed that the applicant had not been the sole mastermind behind the offences.

iii.   On a number of occasions during the course of the trial the judge “stepped into the arena”, speaking of the fact that she herself had been an athlete.  She thereby indicated that, in respect of sentence, she adopted a biased approach, one that favoured athletes over sports administrators such as the applicant himself.

iv.   The judge fell into error by taking into account sums of money greater than in fact was the case: according to the applicant, the total amount of money involved in the five offences being approximately HK$800,000 only.

The first ground

45.  There is no substance in the complaint that the judge failed to give due weight to the previous good character of the applicant, integral to this being his fall from grace.

46.  The judge was aware of the first applicant’s previous good character and of the fact that, by his conviction, he had lost his standing in the community.  In her Reasons for Sentence, she made specific reference to his previous good character and stated that she had taken into account the various character references submitted by family and friends, respected members of the community and others.  The judge, however, was equally aware of legal authority binding on her that, in respect of offences of corruption – the subject of the first three charges of conspiracy – previous good character can count for little, it being essential that such sentences are deterrent in nature.

47.  In this regard, among other authorities, the judge made reference to the judgment of this Court in Secretary for Justice v Kwan Chi Cheong and others [2009] 4 HKLRD 273, paras. 16 and 17, in which Stuart-Moore VP said:

“The Prevention of Bribery Ordinance provides the sanctions necessary to deal with breaches of this kind. The Ordinance was intended to be draconian in its effect. Bribery, whether in its acceptance or by offering an advantage, is an evil which can strike at the heart of commercial and public life if it is left unchecked. A punishment that fails to deter will produce all the wrong signals just as sentences which act as a deterrent will reinforce this community’s efforts to rid itself of corruption.

For these reasons, even the first offender charged with an offence of corruption under the Ordinance, unless it is merely a technical breach, must usually expect a deterrent sentence.  This will almost invariably involve a sentence of immediate imprisonment.” [our emphasis]

48.  The applicant’s offences of corruption were far from merely ‘technical’.  As the judge noted, they had caused “serious damage” to the reputation of the Hong Kong Association itself and in Hong Kong to the reputation of the sport of bodybuilding.  His actions, she said, had undermined one of the primary functions of the Hong Kong Association, the Asian Federation and the International Federation, namely, to keep the sport of bodybuilding free of drugs. 

49.  In the result, she observed, the second applicant, who should not have been entitled to compete at the prestigious 2006 Doha Asian Games, and who should have had his medal stripped from him at the earlier games in South Korea, was able to win a gold medal in Doha at the expense no doubt of an athlete who had trained and competed legitimately.

50.  The judge further noted that, by covering up the drug violations of the first applicant and the other two, they had been able to apply for financial grants from Government.

51.  In our view, these were all valid observations.  Sport today is not only part of the social sinew of society but part of its economic muscle as well.  Elite athletes are seen as national heroes.  They are role models for the young.  It is for such reason that they are so generously sponsored by businesses and funded by Governments.  Organised sport is capable of generating huge revenues.  Corruption in sport can therefore have consequences every bit as grave as corruption in other areas of public life.

52.  In respect of the two offences of dishonesty, the offence of conspiracy to defraud and the offence of fraud, the judge was of the view that these too were serious offences meriting an element of deterrence.  We agree.

The second ground

53.  The first applicant complained that the judge had failed to take into account the fact that he was not the sole ‘mastermind’ behind the offences.

54.  It was for the judge to come to the necessary findings of fact.  In this regard, she was satisfied on a consideration of all the evidence that the first applicant, as Chairman of the Hong Kong Association, the man who clearly held the position of the greatest authority when it came to matters of finance and negotiation with affiliated bodies, bore the greatest culpability for the commission of the offences.  As the judge expressed it, the first applicant was the mastermind, proposer and beneficiary. The athletes, in their hunger to compete, complied and agreed to participate in the crimes.  Nothing has been put before us to suggest that the judge, who had the benefit of hearing the evidence, was wrong in coming to these findings.

The third ground

55.  The first applicant complained that on a number of occasions the judge “stepped into the arena”, speaking of the fact that she had been an athlete herself.  The impression thereby given was that, in respect of sentence, she adopted a partisan approach, one that favoured athletes over sports administrators such as the applicant.

56.  As Ms Yang, counsel for the respondent, observed, the first applicant was represented at trial and at no time did his counsel suggest that the judge had intervened more than was proper.

57.  Nothing has been put before us to support the contention that the judge, in the exercise of her sentencing responsibility, was guilty of bias, actual or perceived.

58.  Importantly, in our view, even if it was conceded that the judge had made an error of fact and that the athletes had played a role of greater influence in the commission of the offences than she found, we are satisfied that the overall sentence imposed on the first applicant would still have been well within the range of sentences that could properly be imposed for a person who was not the sole mastermind but nevertheless was a principal guiding force.

The fourth ground

59.  It was the applicant’s complaint that, in assessing the seriousness of the offences, the judge had fallen into error by miscalculating the amounts of money involved.

60.  In respect of the first three offences, those of conspiracy to offer an advantage to an agent, the judge held that they had involved three different athletes and a total sum of HK$350,000.  The applicant disputed the figure of HK$350,000, saying that, on the evidence, a sum of only approximately $240,000 had been paid over by the three athletes.

61.  The judge was aware of the computation of the actual sums paid by the athletes but based her assessment on the figures set out in the charges, they being the sums which she was satisfied had been agreed by the co-conspirators in the three separate conspiracies.  We are unable to criticise that approach.  It is the agreement which is the essential ingredient of the crime of conspiracy and it is the nature of the agreement which marks the culpability of the conspirators.