HKSAR v. NG HOI YING AND OTHERS

DCCC 291/2023

[2025] HKDC 856

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 291 OF 2023

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REASONS FOR VERDICT

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THE CHARGES

1.  The three Defendants are jointly charged with one count of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 (Charge 1) and with an alternative count of fraud, contrary to section 16A of the Theft Ordinance, Cap 210 (Charge 2). The particulars of the charges are as follows:

(1) Charge 1: D1, D2 and D3, between 19 May 2022 and 25 July 2022, conspired together to defraud the Manager(s) (“the Managers”) of the Leisure and Cultural Services Department (“LCSD”) of the Hong Kong Special Administrative Region (“HKSAR”) by dishonestly and falsely representing in two Loading Tables that the weight of various equipment stated therein was the actual weight of the equipment, thereby inducing the Managers of the LCSD of the HKSAR to allow the concert known as ‘MIRROR. WE. ARE LIVE CONCERT 2022’ (“the Concert”) to proceed.

(2) Charge 2: D1, D2 and D3, between 19 May 2022 and 25 July 2022, by deceit, namely by falsely representing in two Loading Tables that the weight of various equipment stated therein was the actual weight of the equipment, and with intent to defraud, induced the Managers of the LCSD of the HKSAR, to commit an act or a series of acts, namely to allow the Concert to proceed, which resulted in benefit to Engineering Impact Limited (“EIL”), or in prejudice or a substantial risk of prejudice to Music Nation Productions Company Limited (“Music Nation”).

THE INCIDENT AND GIST OF THE CASE

2.  This case arose out of an incident which occurred on 28 July 2022 at the Concert of the group, MIRROR. Music Nation was the investor of the Concert and had applied and obtained approval from the LCSD to hold the Concert at the Hong Kong Coliseum (“HKC”). At the fourth show of the Concert, which was held on the aforesaid date, one of the six moving double-sided LED walls (“the 6 LED Walls”) hung on the Main Truss Roof Frame A at the ceiling of the HKC fell, injuring two dancers performing on stage.

3.  The prosecution alleges that it was later found that the weights of 10 types of equipment listed in the Loading Tables (R1 and R2) (Exhibits P18 and P28) for the Concert were underreported, with the magnitude of overweight being over 4 times when the actual weight[1]  and the weight stated in the Loading Tables were compared[2]. In particular, the Loading Tables stated that (1) the 6 LED Walls weighed 3,600 lbs and (2) the 8 PA Speakers weighed 1,600 lbs, while the actual weights thereof were 9,952.5 lbs and 12,240.8 lbs, respectively.

4.  The prosecution alleges that D1 and D2 (project managers of EIL, the main contractor engaged by Music Nation for the stage set-up, including the rigging arrangement, of the Concert) as well as D3 (a project manager / lighting designer of Infinity Project Management (“Infinity”), who, according to the prosecution, was responsible for doing all the calculations and checking whether the trusses at the ceiling of the HKC could sustain the weight of the equipment to be hung) knew about the falsity of the weights in the Loading Tables; had an agreement to make / jointly made the false representations therein; had the requisite intent; that PW10 (Mr Tony Wan) of Fugro (Hong Kong) Limited (“Fugro”) (engaged by the LCSD to confirm the rigging arrangement was in order and safe for the intended use) was induced by the said false statements in issuing the Stability Certificate[3]  (P34); this in turn induced the LCSD (who placed reliance on PW10’s assessment) to allow the Concert to proceed; and that the LCSD would not have allowed the Concert to proceed without the Stability Certificate issued by Fugro[4].

5.  The detriment alleged by the prosecution in the conspiracy charge (Charge 1) is that the LCSD was deflected from performing their public duty in allowing the Concert to proceed. For the fraud charge (Charge 2), it is alleged that as a result of the LCSD allowing the Concert to proceed, EIL obtained a benefit of 10% of the contractual sum (which it would not have gotten if the first show of the Concert had not been able to take place); whereas Music Nation suffered a prejudice or risk of prejudice of the said 10% of the contractual sum as well as a financial loss due to the fourth show of the Concert being suspended and the eight remaining shows being cancelled.[5]

UNDISPUTED BACKGROUND[6]

Relevant parties

6.  The pertinent government departments, companies and persons / prosecution witnesses in the case are:

(1) The LCSD: The department which handled and approved the application made by Music Nation to hold the Concert at the HKC. PW1 is Ms Wendy Tang, the Manager (Operation) of the LCSD. PW2 is Ms Kiki Wong, the Deputy Manager (Operation) of the LCSD.

(2) Music Nation of Music Nation Group: A subsidiary of PCCW and the investor of the Concert, which applied successfully to the LCSD (as the hirer) to hold the Concert at the HKC in July / August 2022. (MIRROR is formed by performers of Maker Ville Company, also a subsidiary of PCCW.) PW3 is Ms Stella Ng, Project Manager of Music Nation Group. PW4 is Ms Karen Li, PCCW Assistant Vice President.

(3) EIL: The main contractor engaged by Music Nation for stage set-up (including the rigging arrangement) of the Concert; also principally responsible for audio and lighting of the Concert. D1 and D2 were project managers of EIL at the material time. D1 had been employed by EIL since 2006 (excluding a period in 2007 to 2015); D2 had been employed by EIL since 1988. Regarding the Concert, D1 was responsible for coordinating with other working parties and handling all email communications, and D2 was the person-in-charge / representative of EIL.

(4) Infinity: A company specialising in concert production. D3 had been employed by Infinity since 2016. At the material time, D3 was a project manager / lighting designer of Infinity.[7]

(5) Fugro: A company engaged by the LCSD to provide independent consultation and vetting services before any event was held in the HKC. PW10 is Mr Tony Wan, a Registered Structural Engineer (“RSE”) at Fugro. PW11 is Mr Chu Ka Lok, a Fugro Technician. PW12 is Mr Fung Tai Man, an ex-intern of Fugro.

(6) Hip Hing Loong Stage Engineering Company Limited (“HHL”): EIL subcontracted to HHL the installation, operation and removal of all mechanical devices of the stage, including the suspension system (“the Suspension System”) of the 6 LED Walls.

(7) 東莞市銚龍舞台製作有限公司(“銚龍”): HHL subcontracted to銚龍(a Mainland company) the design, safety calculation, supply and manufacturing of mechanical components of the Suspension System of the 6 LED Walls.

(8) United Technical Services Limited (“UTS”): The company engaged to inspect the site of the Concert in the HKC for certification of safety of all mechanical installations as an independent engineering consultant.

(9) In Technical Productions Limited (“ITP”): Supplier of the LED panels in the 6 LED Walls. PW8 is Mr Dennis Yeung, ITP Director. PW9 is Mr Lam Chi Kong, ITP Project Manager.

(10) Concert Production Team: PW5 is Mr Francis Lam of The Clan Too Limited, Concert Producer engaged by Music Nation (responsible for the overall rundown). PW6 is Mr Mark Cheng, Concert Production Team member. PW7 is Ms Chow Shuk Ching, Concert Stage Designer.

(11) Expert prosecution witnesses: PW13 is Dr Lam Heung Fai, Associate Professor and structural engineer. PW14 is Dr Eric Lim, Chartered Engineer (expertise in mechanical and materials engineering).

Application and approval to hold the Concert

7.  On 23 July 2021, Ms Stella Ng of Music Nation (PW3) submitted the HKC arena booking application form to the LCSD applying to book the HKC for 12 to 31 July 2022 for holding the Concert (P3). On 19 August 2021, the LCSD accepted the application of Music Nation for holding the Concert (P4) subject to the terms and conditions of hire (“T&C of Hire”) (P6)[8]. On 24 August 2021, PW2 on behalf of Music Nation submitted the “Hong Kong Coliseum Confirmed Booking Form for the Arena” to the LCSD, confirming the application to book the HKC for 19 July 2022 to 7 August 2022 for holding the Concert, and the LCSD approved the application on 1 September 2021 (P8).

8.  On 15 July 2022, PW3 submitted a revised booking form (P9) to the LCSD, changing the rental period to 18 July 2022 to 9 August 2022, and the LCSD approved the revised application on the same day.

The LED Walls

9.  Each of the 6 LED Walls used in the Concert was double-sided and made up of 2 LED screens; each LED screen comprised 32 individual LED panels supplied by ITP mounted on a frame purchased by HHL from 銚龍. Therefore, a total of 384 LED panels (32 panels/screen x 2 screens/wall x 6 walls) were used to construct the 6 LED Walls.

10.  In respect of the provision of the LED panels for construction of the walls, D1 sent the first set of stage layout plan to Mr Dennis Yeung of ITP (PW8) and Mr Zhao Ding of 銚龍 (“Mr Zhao”) on 14 April 2022, which was copied to D2 (P36 and P37). On 15 April 2022, D1 sent the second set of stage layout plan to PW8, Mr Zhao and one other person, which was copied to D2 and D3 (P38 and P39). These layout plans specified that 12 double-sided LED walls (size being 4 x 3 metres each) would be used in the Concert.

11.  PW8 of ITP sent the first quotation to D1 by email, which was copied to D2 and one other person, on 21 April 2022 (P40 and P41). PW8 sent the second quotation and a Pixel Drawing to D1 by email, which was copied to D2 and one other person, on 12 May 2022 (P42-P44). A meeting was held on 12 May 2022[9]  (“the 12 May 2022 Meeting”). On 15 May 2022, PW8 sent the third quotation to D1 by email, which was copied to D2 and one other person (P45 and P46).

12.  Later that day (on 15 May 2022), D1 sent an updated quantity of LED panels required (being 6 double sided walls of 4 x 4 metres each) to PW8 by an email, which was copied to D2 and one other person (P47). On 17 May 2022, D1 sent a WhatsApp message to PW8 requesting an updated Pixel Drawing, and on 19 May 2022, PW8 sent the same by email to D1, which was copied to D2 and D3 and various persons (P50 and P51[10]). There were further meetings held in May and June 2022.[11]

13.  On 28 May 2022, D1 sent the third set of stage layout plan to PW8, Mr Zhao and other persons by email, which was copied to D2 (P52 and P53). On 1 July 2022, PW8 sent the fifth quotation to D1 by email, copied to D2 and one other person (P56 and P57). On 9 July 2022 and 24 July 2022, D1 sent the fourth and fifth sets of stage layout plans to PW8 (and other persons) by email, copied to D2 and D3 (P54, P55, P58 and P59). The third, fourth and fifth sets of layout plans all specified that 6 double-sided LED walls, 4 x 4 metres each, would be used in the Concert.

14.  On 26 July 2022, PW8 of ITP sent an invoice containing the final and agreed quotation to EIL by an email (P61 and P62).

The PA Speakers

15.  P71(1)-(9) are photographs showing the type of PA Speakers used during the Concert.

16.  Computer records including the following were seized from Mr Chan Wai Fung (“Mr Chan”), Audio Manager of EIL, at EIL’s warehouse on 13 September 2022[12]: (1) a one-page brochure titled “K2 LONG THROW LINE SOURCE” (P63); and (2) page 2 of a document titled “Soundvision (version 3.8.1)” dated 13 September 2022 (P64).The whole copy of P64 was later retrieved from Mr Chan’s computer (P65).[13]

Loading Tables, Rigging Plans, etc

17.  On 5 July 2022, a meeting took place.[14]

18.  On 13 July 2022, D1 sent various documents, including the Loading Table (R1) (P18), the Rigging Plan (R3) (P16), the Hoist Y PT Loading Table (R1) (P67) and the Share Points Loading Table (R1) (P68), to PW2 by email, copied to PW3 and D2 (P19). On the same day, PW2 forwarded the four documents (P18, P16, P67 and P68) to Fugro (PW10) for review and vetting (P20). The Loading Table (R1) and the Rigging Plan (R3) had been sent by D3 to D1 by emails dated 9 and 12 July 2022, respectively (P15[15]  and P17[16]).

19.  On 18 July 2022, PW10 sent an email to PW2 which stated: “Further to the attached rigging plan and loading table received for the captioned event, we would like to request the hirer to provide more detailed calculations showing the loading distribution of all the loads on the Main Truss roof Frame A to each of the rigging points (R1 to R40) so that we can verify whether reactions are in order.” (P21) Later on the same day, PW2 forwarded the said email to D1, copied to PW3 and D2 (P22).[17]

20.  On 19 July 2022, PW2 sent an email to PW10 stating: “I heard that Joseph from Impact contacted you yesterday. Do I need to request the hirer to provide anything?” (P23), and PW10 replied by email on the same day that: “Impact has provided us their assumptions and we are checking the calculations. We will have results by tomorrow and if there are comments, we will send to you.” (P24)

21.  On 20 July 2022, PW10 sent an email to PW2 stating: “We have reviewed the attached rigging plan (R1) and loading table (R1) and have no further structural comment. We will arrange inspection on 23 July 2022 (Sat).” (P25) PW2 then relayed the said comment to D1 by email, copied to PW3 and D2 (P26).

22.  On 22 July 2022, D1 sent various documents, including the Loading Table (R2) (P28), the Rigging Plan (R4) (P29), the Hoist Y PT Loading Table (R2) (P69) and the Share Points Loading Table (R2) (P70) (“the said four documents”), to PW2 by email, copied to PW3 and D2 (P30). P28 and P29 had been sent by D3 to D1 by an email[18]  earlier that day (P27).

23.  On 23 July 2022, PW2 forwarded the said four documents to PW10 for his further review (P31). PW10 sent an email to PW2, indicating “no structural comment” having reviewed the Rigging Plan (R4) and the Loading Table (R2) with the additional loading points S1 to S8 (P32). PW2 then relayed the said comment to D1 by an email, which was copied to PW3 and D2 (P33).

24.  During the investigation of the incident, police officers found in D1’s laptop at EIL’s office on 13 September 2022 a copy of the Rigging Point Location Plan (P75).

Issuance of the Stability Certificate by PW10 and the site inspection report by UTS

25.  On 24 July 2022, PW10, as a RSE, issued the Stability Certificate (P34) confirming that, by referring to their site inspection of the rigging arrangements conducted on 24 July 2022, the rigging arrangements had been erected on site in accordance with the Loading Table (R2) and the Rigging Plan (R4), were in order and were safe for the intended use. Later on the same day, PW10 sent the Stability Certificate to PW2 by email (P35).

26.  On 24 July 2022, D1 passed a site inspection report issued by Mr CK Lo, a Registered Professional Engineer of UTS, to PW2 at her office (P60).

Payment by Music Nation to EIL

27.  In respect of the work conducted for the Concert, EIL issued to Music Nation a total of five quotations (dated June / July 2022) totalling $11,315,000 (P10-P14). (The first quotation dated 21 June 2022 (P10) was sent by D1 to PW2 on 21 June 2022 by two emails which were copied to various persons, including D2.) EIL issued a total of five invoices to Music Nation based on the said quotations, and up to 15 July 2022, Music Nation had paid $2,500,000 to EIL.

The LED Wall falling down

28.  The first show of the Concert took place on 25 July 2022. During the fourth show on 28 July 2022, one of the 6 LED Walls fell.

The weighing of the equipment after the incident

29.  It is agreed that during the weighing exercise of equipment at the HKC on 7 to 12 August 2022 by PW15 (DPC 11781) and his team, the weighing scale and display used were calibrated, accurate and functioning properly. The witness statements of PW15 (P81 and P82) relating to the weighing exercise were produced under s65B of the Criminal Procedure Ordinance, Cap 221.[19]

AGREED ISSUES / ELEMENTS THAT THE PROSECUTION MUST PROVE

30.  It was agreed at the outset of the trial that the prosecution must prove the following.

31.  For Charge 1:

(1) Falsity of the representations made in the Loading Tables about the weight of the equipment.

(2) Knowledge of the falsity of the representations made in the two Loading Tables (weight of the LED Walls and PA Speakers).

(3) An agreement amongst the Defendants (based on their respective roles and involvement in preparing for the Concert, their understanding of the importance of the Loading Tables and Rigging Plans, and their submission of the Loading Tables and Rigging Plans to the LCSD).

(4) An agreement to use dishonest means by falsely representing in the two Loading Tables that the weight of various equipment stated therein was the actual weight.

(5) An intention that the LCSD (and PW10) will be defrauded, in relying on the accuracy of the false weights of the equipment stated in the Loading Tables, by being deflected from performing their public duty and allowing the Concert to proceed.

32.  For Charge 2:

(1) Falsity of the representations made in the Loading Tables about the weight of the equipment.

(2) Knowledge of the falsity of the representations made in the two Loading Tables (weight of the LED Walls and PA Speakers).

(3) A deceit practiced by the Defendants by falsely representing in the two Loading Tables that the weight of various equipment stated therein was the actual weight.

(4) Inducement on the LCSD to allow the Concert to proceed.

(5) Intent to defraud, i.e., the Defendants intended that by practicing the deceit, the LCSD would be induced to allow the Concert to proceed, thereby resulting in benefit to EIL or in prejudice or a substantial risk of prejudice to Music Nation.

CRUX OF THE PROSECUTION CASE

Expert evidence

33.  The prosecution relies on the opinion evidence of two experts: (1) Dr Lam Heung Fai (PW13), an expert on structural engineering; and (2) Dr Eric Lim (PW14), an expert on mechanical and materials engineering.

34.  Parts of PW13’s report (P84) are highlighted by the prosecution in its Opening as follows:[20]

(1) Based on the true weight of the equipment, many loading points were seriously overloaded, for instance, 13 loading points were overloaded by over 100%;

(2) Had the true weight of the equipment and the resulting overloading at the loading points been reflected in the Loading Table (R2) and Rigging Plan (R4) submitted to the LCSD, the proposed rigging arrangement would have clearly violated the design criterion;

(3) To accommodate the much heavier weight of the equipment, the entire rigging arrangement must be re-designed. However, it would be extremely difficult as many of the loading points had already been seriously overloaded, and considerable modifications would have been required to cut down the total load or redistribute the loads of various equipment to other loading points; and

(4) Since the entire rigging arrangement had already been built on-site at the time when the Loading Table (R2) and Rigging Plan (R4) were submitted to the LCSD for approval, any modifications would require a total re-design of the entire rigging arrangement and re-construction of the arrangement.

35.  PW14 was engaged by the LCSD to investigate the causes of the incident. The prosecution highlights in its Opening that PW14 gave the opinion in his report (P86) that one of the factors which contributed to the incident was the significantly reduced and inadequate safety factor in the whole Suspension System of the LED Walls as the ratio of actual (as opposed to the represented) weight imposed to the strength of the suspension wire rope was too high.[21]

Falsity of the representations[22]

36.  The prosecution case is that in the Loading Tables (P18 and P28), the total weight of 10 kinds of equipment (Items 1, 2, 3, 4, 6, 7, 8, 9, 13 and 14) hung onto the Main Truss Roof Frame A was represented to be 12,242 lbs. However, the total actual weight of these pieces of equipment revealed during the weighing exercises in August 2022 was found to be 50,837.5 lbs, i.e., 4.2 times heavier than that represented in the Loading Tables.[23]  In particular, (1) regarding the 6 LED Walls (Item 4) it is stated that “6 … LED Screen with (… 500 x 1.2 = 600 lbs each) in total 600 x 6 = 3,600 lbs” and (2) regarding the 8 PA Speakers (Item 6) it is stated that “8 … PA Speaker … (in total weight = 1,600 lbs)”.

Knowledge of the falsity of the representations[26]

Knowledge of the weight of the 6 LED Walls (Item 4)[27]

37.  Regarding knowledge of the weight of the 6 LED Walls (Item 4), the prosecution case is that: “In light of the contents of the two ‘Pixel Drawings’ and the discussion made in the meetings in April 2022 (as mentioned by PW8) and on 12 May 2022, as well as a subsequent meeting (as mentioned by PW7), … D1-D3 must have all along been well aware of the total actual weight of the LED walls, including both stages of the initial design of using 12 LED walls and the subsequent change of using 6 LED walls.”[28]

38.  In particular, regarding the 12 May 2022 Meeting, the prosecution case is that during that organising committee joint meeting which took place at EIL’s office, an EIL representative (D1 / D2) raised a concern about the overweight of certain equipment to be hung onto the Main Truss Roof Frame A. D3 used his laptop computer to do the calculations of the total weight of equipment to be hung onto the Main Truss Roof Frame A and confirmed that the rigging arrangement could support 6 LED walls. D2 called PW6 several days after the meeting to confirm it was feasible in terms of weight if only 6 LED walls were used.[29]  The prosecution thus submits that “by the time of this meeting on 12 May 2022, the EIL team (including D1-D3) must be alive to the issue of potential overweight of the equipment to be hung at the HKC ceiling and it was only sensible for them to have paid extra attention to the weight of each and every equipment to be hung, so as to avoid any overweight and ensure safety of the rigging arrangement. The fact that D2 had phoned PW6 confirming about the feasibility of using 6 LED walls in terms of weight and D3 had mentioned during the meeting that it should be alright in terms of weight if 6 LED walls were to be used further shows that both D2 and D3 must have some knowledge as to the actual weight of the LED walls involved.”[30]

Knowledge of the weight of the 8 PA Speakers (Item 6)[31]

39.  The prosecution case is based on the brochure (P63) and information printed on the back of speakers (P71) found at EIL’s warehouse.

40.  The prosecution submits that given that some K2-type PA speakers were found in EIL’s warehouse where D1-D3 should have frequently attended in the preparation of the Concert, and the potential overweight of the equipment to be hung at the HKC ceiling had become a live issue since the meeting on 12 May 2022, D1-D3 must have paid special attention to the actual weight of each column of PA speakers.

Knowledge of the two Loading Tables which contained the false representations[32]

41.  The prosecution relies on the sending / forwarding / receipt of emails with attachments (including the Loading Tables) by the Defendants and asserts that: “Given that the potential overweight of equipment to be hung at the HKC ceiling had become a live issue since the meeting on 12 May 2022 and D1-D3 must have known that the Loading Tables contained important information, such as the weight of each equipment to be hung onto the HKC ceiling, for the LCSD’s consideration and approval, … D1-D3 must have paid extra attention to the weight of each equipment as represented in the Loading Tables (including those under Part 1). If this contention is accepted by this Court, there will be sufficient basis for this Court to find that D1-D3 must have clearly known the falsity of at least the represented weight of the 6 LED walls being 3,600 lbs (as opposed to the total actual weight of at least 5,744.6 lbs) and that of the 8 PA speakers being 1,600 lbs (as opposed to the total actual weight of at least 10,841.6 lbs).”[33]

Inducement by the false representations[34]

42.  It is the prosecution case that the false representations contained in the two Loading Tables induced PW10 to issue the Stability Certificate which in turn induced PW1 / PW2 of the LCSD (who placed reliance on PW10’s assessment) to allow the Concert to proceed.[35]

43.  The prosecution asserts that: “… had PW10 known the serious issue of overloading at 25 out of 55 loading points at the HKC ceiling based on the actual weight of the equipment, he would definitely not have issued the Stability Certificate.”[36]

Agreement to use dishonest means with the requisite intent / realisation[37]

Common purpose / object of obtaining approval from Fugro[38]

44.  The prosecution submits that: “Based on all the relevant PWs’ evidence about the roles of D1-D3, it is clear that they were all actively involved in the preparation of the Concert on behalf of EIL who was principally responsible for the stage set-up (including the rigging arrangement of equipment at the HKC ceiling), audio and lighting of the Concert. … [all three Defendants] must have been well aware of Fugro’s vetting and consideration of the documents (including the Loading Tables) submitted by EIL. … D1-D3 must have shared a common purpose / object to obtain the approval granted by Fugro, which was necessary for the LCSD to allow the Concert to proceed, through submission of the documents, including the Loading Tables.”[39]

Understanding the importance of the Loading Tables and joint making of the false representations[40]

45.  The prosecution submits that given what was discussed at meetings, etc, “D1-D3 must all have known that safety was a primary concern of the LCSD and they must have known and appreciated the significance of documents including the Loading Tables to Fugro and the LCSD for making sure that the rigging arrangement was safe…”[41]

46.  It is the prosecution case that on the afternoon of 18 July 2022, D1 telephoned PW2 (i.e., the 18 July 2022 Call) stating that D3 would directly contact PW10 to discuss the issue raised by PW10 about providing more detailed calculations to show loading distribution (P21 and P22). D3 called PW11 that same afternoon to clarify the loading issue. PW11 told D3 that he should contact PW12, who was responsible for this project. Subsequently, D3 and PW12 talked on the phone and D3 was able to directly provide PW12 with information regarding the distribution of the weight of the equipment to be hung onto the Main Truss Roof Frame A as proposed in the Loading Table (R1).[42]

47.  The prosecution says that D3 was the person who had first sent the two versions of Loading Tables to D1 before D1 forwarded the same to PW2; D3 was also the person who directly phoned PW11 and PW12 to provide information on the clarifications sought by PW10 arising out of P18; D3 must have known, expected and intended that the Loading Tables would be provided by D1 to Fugro and the LCSD for review and approval. As to D1 and D2, the prosecution submits that they played an instrumental role of coordination in the project and they must have known EIL’s responsibility of providing the Loading Tables to the LCSD for their review and approval; they must have read the contents of the same before submission.[43]

48.  The prosecution asserts that: “In the whole scheme of things and, in particular, the positive duty borne by EIL to submit full and accurate details in documents including the Loading Tables to the LCSD on behalf of Music Nation, … there is sufficient evidence for this Court to find that D1-D3 were jointly responsible for making the false representations contained in the two Loading Tables to the LCSD and this act must clearly be considered as dishonest based on the two-stage test in Ghosh.”[44]

Charge 2: Fraud

49.  The prosecution’s submissions regarding the alternative charge of fraud are in Part G.4 of its Closing, repeating some of the arguments canvassed hereinabove.

50.  On the element of “deceit”, the prosecution submits that in light of the huge discrepancies between the reported and actual weight of the 10 kinds of equipment and the different magnitudes of overweight of each piece of equipment, “the false representations contained in the two Loading Tables must not be made by a mere careless or negligent mistake, but must be made deliberately or at least recklessly.”[45]

51.  On the element of “inducement”, the prosecution case is similarly that: “the false representations contained in the two Loading Tables had induced Fugro to issue the Stability Certificate and thereby induced the LCSD to grant the approval for the Concert to proceed.”[46]

52.  The prosecution case as to “benefit / prejudice” has been set out above in §5 (and fn 5). One of the prosecution’s contentions is that a contributory cause to the falling of the LED Wall was the reduced fatigue resistance of the suspension rope “due to an increasing ratio of higher actual load … to the rope breaking strength”, and this also resulted in a much lower safety margin in the Suspension System when compared to international standards; thus, there was a causal link between the Defendants’ deceit and the falling of the LED Wall, which thereby resulted in the suspension of the fourth show and cancellation of remaining shows.[47]

THE DEFENCE CASE

53.  None of the Defendants had half time submissions. After I ruled a case to answer for D1-D3 on both charges, they elected not to give evidence and did not call any witness.

54.  The main points of D1 and D2’s arguments and submissions are summarised in their Closing as follows:[48]

“… the evidential basis advanced by the Prosecution in support of the charges, which is wholly circumstantial and equivocal in nature, is grossly insufficient to prove the following essential ingredients beyond reasonable doubt:

(i) The weights of the different components stated in the Loading Tables were false, in the sense that they were untrue representations as to the ‘actual’ weights of those components, and that such representations were dishonestly or deceptively made by the author.

(ii) D1 and D2 must have opened and/or read the softcopy Loading Tables attached to the relevant emails (since not even the Prosecution suggest that D1 and D2 played any part in preparing or verifying them), directed their attention to the weights of the various pieces of equipment stated therein, and appreciated their falsity in the sense as alleged.

(iii) Insofar as Charge 1 is concerned, there was a concluded conspiratorial agreement among the Defendants to induce the LCSD to deflect from performing its public duty in allowing the Concert to proceed based on knowingly false statements of the equipment’s weights.

(iv) Insofar as Charge 2 is concerned, D1 and D2 had practiced a deceit knowingly or recklessly by allowing the Loading Tables to be submitted for approval and inducing the LCSD to believe that the alleged false representations were true.

(v) D1 and D2 possessed the requisite criminal intent for either of the charges.

(vi) The alleged deceit had induced the LCSD to act as they did in allowing the Concert to proceed.

(vii) Insofar as Charge 2 is concerned, there was a causal link between the alleged deceit and the prohibited consequences identified, i.e. benefit to EIL or actual prejudice / substantial risk of prejudice to Music Nation (‘the Prohibited Consequences’).

It follows that the D1 and D2 should be acquitted of the charges that each of them faces.”

55.  The main points of D3’s arguments and submissions are summarised in his Closing as follows:[49]

“… the case against D3 is entirely circumstantial in nature. The Prosecution could not prove to the required standard the essential elements of the offences in question. …

(1) For Charge 1, the Prosecution failed to prove the existence of a conspiratorial agreement for the alleged common unlawfulpurpose / object;

(2) For the alternative fraud charge, the Prosecution failed to prove (i) a causal link between the alleged deceit and the Prohibited Consequences identified, i.e. benefit to EIL or actual prejudice / substantial risk of prejudice to Music Nation; and (ii) that D3 has the correspondingmens rea;

(3) The use of the alleged false representations was not the cause for benefit to EIL / financial loss suffered by Music Nation. The expert evidence showed the major cause of the accident was related to the design, safety calculation, manufacturing quality of the suspension wire ropes and the defective installation of the mechanical system / components of the 6 LED walls;

(4) The evidence is insufficient to draw the irresistible inference that D3 was the one who prepared the Loading Tables; that he must have known the contents of the Tables, in particular the actual weights of equipment listed in the alleged false representations and appreciated the stated weights were false. The errors found in the Loading Tables were not made deliberately or intentionally;

(5) There are equally compelling innocent inferences to be drawn ie the inaccuracy of the figures was due to other innocent causes, such as inadvertence, negligence, mistake or incompetence;

(6) The alleged deceit did not induce the LCSD to act as they did in allowing the Concert to proceed.”

APPLICABLE DIRECTIONS

56.  The prosecution has the burden to prove each element of each charge beyond reasonable doubt. The Defendants have no burden of proof.

57.  Given there are two counts (Charge 2 being an alternative count to Charge 1) and three defendants in the case, I am to consider the evidence against each Defendant separately on each count.

58.  All three Defendants are of clear record and I give myself the relevant direction regardingpropensity.

59.  I remind myself that if I am to draw an inference against a defendant, the inference must be drawn from facts proved and be the only reasonable inference from the proved facts; by the same token, I may only find a defendant guilty if that is the only reasonable inference or conclusion that can be drawn from the consideration of all the established facts.

60.  Parties agree that the elements of the offence and legal principles in relation to conspiracy to defraud are well-settled, all citing Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386 and HKSAR v Chen Keen (2019) 22 HKCFAR 248. Parties also agree that the elements of the offence of fraud and relevant legal principles were set out by the Court of Final Appeal in HKSAR v Chan Kam Ching (2022) 25 HKCFAR 48.

ANALYSIS OF THE EVIDENCE AND FINDINGS[50]

61.  The prosecution called a total of 14 witnesses[51]  to testify. The witness statements of PW15 (P81 and P82)[52]  and PW16 (P80) were produced under section 65B of the Criminal Procedure Ordinance, Cap 221. The evidence presented by the prosecution has largely been agreed or is not in dispute.[53]

62.  Except for PW10, all factual witnesses who testified were credible and honest. I am of the view that they gave evidence to the best of their recollections. As to PW10, I found him to be evasive. Apart from the evidence of PW10 and the unreliable parts of certain witnesses’ evidence (mainly in relation to what occurred during meetings and phone calls) highlighted below, the factual evidence led by the prosecution at trial is accepted by me. As to the opinion evidence of PW13 and PW14, the parts accepted by me are set out in the analysis hereinbelow.

63.  I find that the evidence in the case supports the following.

Factual findings

Roles of key parties

64.  PW1 was a manager of the LCSD and PW2 (PW1’s subordinate) was a deputy manager of the LCSD, both responsible for managing events being held at the HKC. Their duties included vetting and approving applications for hiring the HKC as an event venue. PW1 and PW2 were assigned to handle all Concert-related matters, but PW2 was the designated point of contact and more involved in communicating with the different parties working on the project.

65.  Music Nation was the organiser of the Concert and hirer of the HKC. As the hirer of the HKC, Music Nation signed a form (P8) acknowledging its agreement to comply with the T&C of Hire (P6), thus Music Nation was the party responsible to comply with the terms and conditions. PW3 was an event and project manager of Music Nation Group and PW4 was an assistant vice president of PCCW, and both were representatives of Music Nation for this Concert. PW3 reported to PW4 and was tasked with managing all general affairs of the Concert, such as securing the venue, planning and logistics, allocating the budget, hiring contractors and coordinating marketing activities.

66.  The Production Team, being PW5 to PW7 and others, was engaged by Music Nation. PW5 was the Concert Producer responsible for the overall rundown. PW5 in turn engaged PW6 as the Concert Director, PW7 as the Concert Stage Designer and Queenie Leung as the Concert Assistant Director. PW5 had to plan and oversee the creative, technical and business aspects of the Concert production, take into account the requirements and opinion of Music Nation, then come up with an overall rundown, a song list, and creative elements such as lighting, choreography, costumes, and visual effects. PW6 was in control of most of these artistic decisions and responsible for giving cues in the performances, while PW7 focused more on creating plans for stage setting and construction, including overall stage design.

67.  EIL was engaged by Music Nation as the main contractor for stage set-up (including the rigging of equipment at the HKC ceiling) for the Concert; it was involved in the technical aspect of the production and responsible for translating the Production Team’s creative vision into a theatrical experience. EIL subcontracted different works and tasks to engineering / technical companies, and EIL had to coordinate and liaise with them. Within the company itself, EIL had different departments taking care of different tasks, including a lighting department, an audio department and a rigging department (dealing with the suspension of equipment to the ceiling of the HKC). According to PW3, the T&C of Hire was not made known to EIL, nor was EIL requested to comply with it.

68.  EIL produced the Main Truss, but some auxiliary trusses attached to the Main Truss were provided by HHL, including the “HHL metal frame Kabuki Truss 11500H” and the “HHL 500 truss” suspending the 6 LED Walls and related winch system. HHL was also responsible for supplying, installing, operating and dismantling all mechanical devices of the stage, including the Suspension System of the 6 LED Walls.

69.  HHL in turn subcontracted the design, supply and manufacturing of mechanical components of the Suspension System of the 6 LED Walls (including the metal frames encasing them, the wires and the winch system) to 銚龍. The LED panels were supplied by ITP to EIL.

70.  As to the rigging arrangement proposed by the hirer, the LCSD relied on Fugro (to provide independent consultation and vetting services) and UTS (to inspect the site for certification of safety of all mechanical installations as an independent engineering consultant) in granting approval for applications.

Submission of technical plans to the LCSD

71.  Music Nation had to submit technical plans to the LCSD for vetting and approval with details of the proposed rigging arrangement and loading distribution. For the purpose of the Concert, these consisted of the Loading Tables (P18 and P28), the Hoist Y PT Loading Tables (P67 and P69), the Share Points Loading Tables (P68 and P70) (collectively “the Loading Submissions”) and the Rigging Plans (P16 and P29). They were prepared and submitted by EIL on behalf of Music Nation.

72.  For the Concert, it was D1 who circulated / forwarded various emails with technical submissions (including the Loading Tables) to the LCSD.

Roles of the Defendants

D1 and D2

73.  D1 had a coordination role, liaising between different parties working on the Concert and ensuring that they were informed about the status of the project and any issue (including circulating and forwarding emails and documents related to the Concert to various parties). D1 convened and attended meetings on behalf of EIL and was the contact point for the LCSD. D1 also monitored and oversaw construction works (related to the stage, etc) on-site.

74.  D2 also had a coordination role and monitored on-site construction works, but handled less paperwork and emails. D2 was more experienced in the field and focused more on engineering matters and on monitoring stage set-up and construction works. D2 had the ability to give a preliminary view on whether a design / re-design would be feasible technically – but ultimately, the relevant subcontractors or technical departments would need to be consulted before the technical feasibility of a change in design could be confirmed.

75.  Although the technical plans (including the Loading Tables) were sent / submitted by D1 to PW2 of the LCSD and a vast number of emails were sent to or passed on by D1 and D2 (due to collaborative efforts required in the preparation of a large-scale concert), their role was limited to facilitating communication.[54]  It is not in dispute that all documents and technical submissions circulated through email by D1 and produced as exhibits could be traced to earlier sources and did not originate from D1 or D2 (and had not been amended, supplemented or commented on by them). They would receive / circulate / forward documents and information provided by different departments, subcontractors and parties rather than generate original documents. It is clear that they were the designated points of contact for EIL in the Concert, so emails and documents would be sent to them for record or for dissemination and distribution to others. For this reason, both of them would be included in the loop for emails related to the Concert.

76.  Importantly, there was no evidence that these documents sent out, forwarded, circulated or received by D1 and D2 (and not created by them) had been opened and read by them or that D1 or D2 had verified the veracity of any of these documents. Furthermore, the evidence shows that D1 and D2 did not have the professional engineering background and knowhow to do so.

77.  As to meetings, PW1 and PW2 testified that they had attended various meetings with representatives of Music Nation, and D1 and D2 had represented EIL in attending some of these meetings (such as the ones on 8 February 2022 and 2 June 2022). For technical meetings with the Production Team and subcontractors, the evidence of PW5 and PW9 was that all three Defendants had sometimes attended these meetings, but their evidence was not clear or consistent as to which defendant had attended which meeting, the meeting dates and what exactly had been discussed during the meetings. This point will be addressed further below.

D3

78.  D3 was employed by Infinity. There is no evidence regarding how Infinity was related to EIL or whether (and, if so, how) Infinity was engaged in the preparation works for the Concert. The evidence is that D3 was a lighting designer / lighting technician in charge of the layout of the proposed lighting design and position of light fittings, and that D3 attended the various meetings and discussed matters with prosecution witnesses on behalf of EIL. D3 would sometimes use his laptop to do some rough calculations to see if it was possible to rig some equipment. However, as already stated, the evidence is not clear as to which meeting(s) D3 attended and what exactly was discussed at each meeting.

79.  As to D3’s role in the preparation of technical plans, PW5’s evidence-in-chief was that D3 was responsible for the design of the trusses hung at the HKC ceiling (i.e., the rigging of lighting and audio equipment, mechanical movable devices, pyrotechnic devices, etc) and calculations of the weight distribution. However, during cross-examination, PW5 admitted that, although D3 was a lighting designer, PW5 was not sure whether it would be D3’s duty to incorporate the lighting plan into the rigging plan; PW5 agreed that different parties / companies would need to cooperate to provide information to produce the rigging plans and loading tables. Furthermore, PW7’s evidence was that the initials “CC” on the Rigging Plan dated 12 May 2022 were hers (D1-8 page 6). (The Rigging Plan dated 6 July 2022 at D1-14 page 12 also has the same initials, “CC”.) PW7 was able to explain the different parts of the aforesaid plans and the colouring system she had used to identify each truss and each piece of equipment.

80.  As such, the evidence suggests that it was not D3 who had prepared the Rigging Plans (or other technical plans, such as the Loading Tables) for the Concert.

Who prepared the Loading Tables (containing the alleged misrepresentations)

81.  It is not the prosecution case that any of the Defendants prepared the Loading Tables. The prosecution submits that it is “immaterial as to who actually prepared the Loading Tables as the key issue is whether D1-D3 knew that the representations contained in the Loading Tables were false …”[55]

82.  There is indeed insufficient evidence for the Court to determine who prepared the Loading Tables. It would be expected that given the information contained in a loading table, it would be prepared by someone with an engineering background.[56]  However, the evidence indicates that the Loading Tables in this case were full of mistakes (as discussed below) and might not have been prepared by someone with formal training in engineering.

83.  It is worth noting that the Loading Tables bear the logo of EIL. According to PW6, EIL has a department that is responsible for the rigging of equipment. For a question regarding whether an item could be hung in a certain way, D1 / D2 would need to ask EIL internal department staff responsible for rigging. PW7 also stated that even though D2 was experienced and could state his opinion on any re-design, D2 still had to ask the relevant department / unit responsible to confirm whether a new concept could be implemented. Given the existence of this department responsible for rigging, it is logical that technical plans such as the rigging plan and loading table would be prepared by that department of EIL.[57]

84.  The Loading Table itself records that it was prepared by a person named “Makic Chiu” and the emails dated 9 July 2022 (P15) and 12 July 2022 (P17) to which the Rigging Plan and Loading Table were attached were also circulated to “makic@impacthk.com”. However, none of the prosecution witnesses was asked about “Makic Chiu”. Nor was there any evidence from them about who had prepared the Loading Tables.

85.  It is worth mentioning that PW2 gave evidence that as she herself had no engineering background or training, she did not have knowledge about the data or numbers in the Loading Tables; thus, after she had received a loading table from EIL, she would just glance through it and pass it to Fugro for vetting.

Knowledge of the weight of the LED Walls

86.  The prosecution case is that in light of the contents of two Pixel Drawings (P44 and P51) and the discussions made in the meetings which took place in April 2022 and on 12 May 2022, etc, “D1-D3 must have all along been well aware of the total actual weight of the LED walls, including both stages of the initial design of using 12 LED walls and the subsequent change of using 6 LED walls.”[58]

87.  As already mentioned, it is unclear from the evidence (including the testimony of prosecution witnesses) what the precise dates of meetings were, whether D1, D2 and/or D3 attended the meetings, and what exactly was discussed and done at the meetings.[59]

88.  The following regarding the LED walls is clear from the evidence:

(1) It was decided early on (in around January 2022) by the Production Team that 2-sided LED walls (which could go up and down, and could rotate) would be used in the Concert. PW7 drew the plans for the stage design (e.g., stage layout plan P37 dated 14 April 2022), and initially the plan was to use 12 LED walls (of 4 x 3 metres in dimension) because there were 12 members in MIRROR.

(2) PW7 sent the stage layout plans to D1, who then sent them off to various persons, including PW8 (copied to D2, and sometimes D3 as well) (D1-5 and P36-P39).

(3) PW8 forwarded the plans to his colleagues (including colleagues on the Mainland), and ITP did its own calculations before preparing quotations (P41 and P43). ITP then issued its own Pixel Drawings (such as P44) with the weights, and sent the same to D1 (of EIL) to let her know the resolution of the screen and the weight and size of each – she needed to give this information to others who would do the projection on the screen.

(4) The quotations P41 and P43 (making reference to 12 double-sided LED walls) were sent to D1 and copied to D2 on 21 April 2022 and 12 May 2022, respectively (P40 and P42). The quotations P46 and P49 (making reference to 6 walls) were sent to D1 and copied to D2 on 15 May 2022 (P45 and P48).

(5) Some time in April 2022, PW8 attended a contractor meeting at which D1-D3 were all present, and during which the topic of LED walls and LED panels was discussed (what size, how many pieces and how many sets). At the meeting, PW8 was asked how much the walls would weigh, and PW8 used his phone to do calculations and then gave an estimated weight of one side of an LED wall. PW8 remembered he had used the size measurements of the LED panel and wall, and the number of units needed, but did not remember what figures he had used and what weight he had stated at the meeting.[60]  He did remember, however, that this meeting had taken place when the number of LED walls was still at 12.

(6) The Pixel Drawings (which showed the number of LED panels and walls used and the relevant weights) were sent by PW8 to D1 (P44 with 12 LED walls, sent on 12 May 2022 and copied to D2 (P42); P51 with 6 LED walls, sent on 19 May 2022 (per D1’s request for an update) and copied to D2 and D3 (P50)).

(7) The proposal to change the design from 12 LED walls (of 4 x 3 metres) to 6 LED walls (of 4 x 4 metres) first occurred at the 12 May 2022 Meeting. D1 and D2 likely attended, but D3 might not have.[61]  EIL raised two concerns regarding using 12 walls: (1) it would be over-budget, and (2) the weight / load-bearing would be an issue. The Production Team then came up with the suggestion of using 6 walls instead (with 2 MIRROR members sharing one wall). However, no conclusion was reached at the meeting as detailed calculations and drawings still had to be done to determine whether the change was feasible. It was not until some days after 12 May that the change was confirmed.

(8) According to PW7, after the 12 May 2022 Meeting, in another meeting with contractors (at which D1 and D2 were present, but D3 might not have been), there was a mention of LED wall weight, and a number around 500 kg might have been mentioned for one 2-sided LED wall.

89.  I find that there is insufficient evidence to show that the Defendants (even if they had attended the meetings) were aware of the extent of overweight or that they “must have some knowledge as to the actual weight of the LED walls involved” from the meetings as submitted by the prosecution[62].

90.  I am of the view that there is insufficient evidence to show in what manner the weight of the LED walls or the extent of overweight of equipment was mentioned or discussed at the 12 May 2022 Meeting, including what figures were thrown out or how much of a focus this was at the meeting (i.e., whether it was just glossed over or a main topic at the meeting). The evidence of PW5 to PW8 shows that numerous issues were discussed at such meetings with contractors, and many meetings took place during the course of preparing for the Concert – the prosecution witnesses themselves could not recall details of what had been discussed at the 12 May 2022 Meeting (and even contradicted each other in terms of the participants, etc[63]). This is clearly at least in part due to the “overweight” of equipment / arrangement to change from 12 to 6 LED walls being just one of many issues having to be addressed at the meetings and by the contractors in the course of preparations. Moreover, the Defendants were not responsible for designing the rigging arrangement or performing load calculations – they were not the ones responsible to address this technical / engineering issue. I do not accept the prosecution argument that by the time of this meeting on 12 May 2022, and subsequently, the Defendants must have “paid extra attention to the weight of each and every equipment to be hung”[64].

91.  On the contrary, the fact that it was determined some days after the 12 May 2022 Meeting that the reduction of 12 LED walls to 6 was feasible (after further calculations and amendments to the plans had been done by PW7) would actually lead someone without detailed knowledge or understanding of the figures and calculations (such as a non-engineer, and one not involved in the preparation of the Loading Submissions) to think that the overweight issue had been resolved by this design change – and actually be less concerned / pay less attention to the weights of equipment and the possibility of a weight / load-bearing issue thereafter.

92.  For the April and July meetings, the evidence of PW8 and PW7 was that only estimates or rough figures of the weight of LED walls had been given – and these approximate numbers were not mentioned as a result of any issue having arisen (unlike in the 12 May 2022 Meeting). I do not see why the Defendants would pay particular attention to these figures or remember them even if they had attended the meetings and had heard them being mentioned.

93.  As to the Pixel Drawings, the evidence of PW8 was that they had been sent to EIL to let them know the total number of pieces of LED panels needed, how much each weighed, and the pixel information (resolution) so the Production Team could be informed for creation of the video content to put on the LED. From the perspective of D1 and D2, the purpose of EIL receiving the Pixel Drawings was to pass it on to others for production of video content; the focus of D1 and D2 would not be on the weight of the equipment (which would furthermore require interpretation of the figures in the documents and calculations to be performed).[65]  For D3, he only received the final Pixel Drawing (P51) on 19 May 2022 (and not the previous ones). When asked why he had copied D3 in on the email (P50) with P51, PW8 stated that this was the final drawing so he would send this to a lot more people, and D3 had to put this in the rigging plan. However, as already stated, the evidence suggests that it was not D3 who had prepared the Rigging Plans. PW8 also agreed under cross-examination that the subject email chain had already copied D3 as a recipient (D3-6) when the earlier email with “Subject: W – rig revised” had been forwarded by D1 to PW8, and PW8 might simply have pressed “replied all” when he had sent P50 attaching P51. Importantly, there is no evidence that D3, being copied in the email, must have opened and read the attached Pixel Drawing (the contents of which were confusing to begin with).[66]

94.  I thus do not accept the prosecution assertion that due to the meetings and the Pixel Drawings, the Defendants must have all along been aware of the weight of the LED Walls.

Mistakes and problems in the Rigging Plans and the Loading Submissions

95.  The Rigging Plans and the Loading Submissions were riddled with glaring mistakes and problems. This was clear from the evidence of the expert witness, PW13. PW10 also acknowledged these problems when they were pointed out to him during his testimony, and admitted he had missed many of them; and for the other mistakes, his evidence was that he had spotted them but had thought they were inconsequential. I shall not set out all the mistakes and problems in the Rigging Plans and the Loading Submissions herein.[67]  However, the following points merit mention.

96.  It is extremely unclear which item in the Loading Tables correspond to which item in the Rigging Plans. An example is the “supporting truss”. PW10 thought this was all the trusses beneath the Main Truss, and PW13 thought this was the LED truss. PW13 agreed after being taken through some calculations and the plans that Item 2 in Part 1 Frame A “supporting truss” of 103m might be the 12 short light blue trusses, being around 12 x 8 m each = 96 m (i.e., the 12 Trusses) and not the orange LED truss (which measured only approximately 27 m in circumference). PW10 also agreed under cross-examination that the “supporting truss” was likely the 12 Trusses.

97.  A lot of information was missing from the Loading Submissions and Rigging Plans such that one had to make many assumptions before one could perform loading distribution calculations. For example, PW13 stated that information was missing on how equipment was hung on Frame A, and to do the relevant calculations, one would need to know the precise points at which items were hung (which gridline, which point).

98.  It is apparent that the weights stated on the Loading Tables were calculated using densities / approximate lengths / approximate weights per piece (and not measured weights of the trusses and equipment). The density, length and weight figures themselves were rough estimates (and for some pieces of trusses and equipment, obviously incorrect), which led to the weights calculated and stated in the Loading Tables to be very rough estimates.

99.  In particular, the weights of some pieces of equipment were obviously wrong on the face of it. This included the stated weights of the PA Speakers in the Loading Tables. When PW13 was taken to a photograph of one of the 8 PA Speakers at P71(1) (this being Item 6 on the Loading Tables, 8 PA Speakers recorded to total 1,600 lbs), and asked if he agreed it was impossible that one seeing something this massive would think it could be just 200 lbs each (i.e., 1,600 lbs for 8 PA Speakers), PW13 agreed and remarked that he would be a bit scared seeing this figure.

100.  There were many mistakes and errors in the Loading Submissions which were mismatched with the Rigging Plan. D3-11 are 8 pages of mistakes on the hoist table (P67) which did not match with the Rigging Plan (P16); these were put to PW10 during cross-examination, and PW10 agreed that these discrepancies were not picked up on during his alleged point-by-point examination of the documents; PW10 further stated that if he had spotted these mistakes, he would have asked the LCSD questions to clarify. He agreed that these were glaringly obvious mistakes. Moreover, the sum of reactions were different from the sum of weights of components stated on the Loading Tables – this defies the laws of physics and is impossible.

101.  According to the expert witness, PW13, the issuance of a stability certificate imposes a heavy responsibility on the RSE (PW10 of Fugro, in this case) – there must be sufficient evidence to make the engineer satisfied that the system / structure is safe for the public; he must not rely on unverified information. PW13’s evidence was that in the present case, the Loading Submissions and the Rigging Plans had many obvious mistakes – a reasonable and responsible RSE would doubt / suspect the reliability of the documents and would at least ask questions and get answers to clarify; and it would be expected that the RSE would do so in writing to protect himself. PW13 further testified that if a RSE did not get a proper answer to these suspicious issues and questions before signing the stability certificate, that would be strange. Ultimately, PW13 opined that it was unclear why the application had been approved by the RSE.[68]

D3’s conversation with PW12 (alleged by the prosecution to be about the Loading Tables)

102.  The evidence as to what had been discussed over the phone between PW12 and D3 was ambivalent[69]; PW12 admitted his memory of the conversation was blurry, and PW12 at most had a fragmented recollection of what had been discussed. PW12 and D3 had talked on the phone without any instructions from PW10 and unlikely about what PW10 had wanted to ask regarding assumptions made in the Loading Tables.[70]  Indeed, based on PW13’s evidence, it is clear that it would be very difficult to relay the information needed to verify the calculations (i.e., the precise points at which trusses and equipment were hung and how different loads imposed were assumed to distribute to the 40 reaction points, R1-R40) just through a telephone conversation, especially when the person on the opposite end was just a young summer intern who did not have a good grasp of even how to read the relevant plans and tables. There is also no evidence that any notes were taken by PW12 on the information given by D3, and it defies common sense that so much information on something so important for the project and so new and unfamiliar to PW12 would not be recorded / noted down in writing by PW12 so that he could accurately give that information to PW10.

103.  I do not accept the prosecution case that D3’s phone call(s) to PW12 must have been about the assumptions used in the calculations in the Loading Submissions and Rigging Plans.[71]  I am of the view that PW12 could not have gotten the requisite information required by PW10 to verify all the calculations in the Loading Tables. I find that the phone conversation did not help PW10 gain more knowledge or understanding of the contents of the Loading Tables. Nor does it help to support the prosecution case that D3 had a good understanding of the contents of the Loading Tables.

Negligence by Fugro in the vetting of the Loading Tables

104.  I accept the defence submission[72]  that Fugro was in dereliction of duty in vetting the Loading Tables.

105.  I have already set out some of the glaring mistakes in the Loading Tables which were not spotted by PW10. It is clear from the evidence (including his own) that he did not take proper care when reviewing the Loading Tables and related plans. In reading and interpreting the plans, he made numerous assumptions[73]  which were not reasonable or justified. There were many basic matters which he should have known or realised[74], and obvious errors[75]  he should have picked up on – which he either spotted and did not care to clarify, or completely missed. He did not even realise that the “12 nos. of Up/Down Artist” denoted the 12 members of MIRROR – when asked by the Court what he thought “artist” meant, he gave the answer that it might be some kind of lighting equipment.

106.  It is clear that these matters and errors (including many of the mistakes and problems regarding the weight figures in the Loading Tables) would have been detected by a RSE doing his job properly in reviewing the Loading Submissions and Rigging Plans, and extensive inquiries would have been raised to seek clarification. In this instance, apart from sending the one email asking the one question (P21), PW10 made no attempt to clarify any matter regarding the plans. It is thus plain and apparent that PW10 did not do a point-by-point checking of the plans as claimed by him.

107.  It is also clear that PW10 could not rely on PW12 to assist him in any meaningful way in the vetting process. PW12 admitted that he was still baffled by the plans after PW10 had gone through them with him, and did not know how to properly read the documents. Clearly, PW12 did not have the ability to spot the possible mistakes, note the areas needing clarification, or independently perform any calculations to check the figures in the plans – and PW10 must have known this.

108.  Likewise, PW10 must have known that he could not rely on PW12 to relay with any clarity the alleged answer from EIL / the LCSD in reply to the question PW10 had asked in the email, P21, especially when PW12 had taken no notes on the phone conversation(s) with D3. PW10 himself could not state with any precision what information had been conveyed to him through PW12.[76]  I do not accept that PW10 had obtained information through PW12 to answer the question posed in P21 to verify the calculations and check the Loading Tables. This is all the more apparent when PW10 claimed he had done the calculations by hand (even though such complicated calculations are usually performed by structural engineers using computer software like SAP 2000[77]) but was unable to provide any record of calculations and notes (handwritten or otherwise) he had made in the process of vetting the Loading Tables.

109.  It should be noted that the prosecution’s own expert, PW13, was of the view that PW10 (and Fugro) should not have approved the Loading Tables as drafted[78]  as they were poorly prepared, did not contain sufficient information, and were riddled with figures and content that looked to be erroneous or were at least unclear. PW13 was of the view that unless clarification on these matters had been given to satisfy the RSE that everything was in order, approval should not have been given.

Negligence by Fugro in conducting the on-site inspection

110.  PW10 gave evidence that at the on-site inspection, he had made visual observations and had checked the equipment hung at the locations described on the Rigging Plan. He had used his flashlight to assist him, but he had not used binoculars or walked up onto the catwalk / bridge, and had only stayed in the audience area and stage floor (around 15m away from the trusses). He claimed that he had been able to check the locations of the rigging points in that way. PW10 agreed that P66(9) was probably what he had seen on the day of inspection.

111.  It is clear from P66(9) that it would be very hard (if not impossible) to identify all of the trusses and pieces of equipment from this distance just with the aid of a flashlight, especially when the lighting was dim, the trusses were all intertwined and overlapping from this angle, and the Rigging Plan was so confusing. It would be even harder to verify whether the wires had been rigged according to the ratios (e.g., 7:3 as opposed to 8:2, etc) as stated in the Hoist Y PT Table in this manner, as PW10 claimed he had. Moreover, given his apparent lack of clarity and understanding regarding which item of the Loading Table represented which item in the Rigging Plan, it would be all the more difficult to match all the items and verify that everything was in order at the on-site inspection.

112.  It is clear that PW10’s on-site inspection was shoddy and he did not properly inspect the rigging arrangement to ensure that the equipment, etc, had been hung in accordance with the Rigging Plan and Loading Submissions.

Causes of the LED Wall falling down

113.  The evidence of the two experts was that the falling down of the LED Wall did not have to do with the overloading at the ceiling level (roof space frame structure). I accept the evidence of the experts (pertinent points set out below) in this regard.

114.  PW13 confirmed that the main point of his expert report was not regarding the cause of the LED Wall falling down. He added that the LED Wall falling down had happened at the lower layer of trusses, and this was unrelated to the Frame A to roof truss connection. He also agreed that there was no evidence that the possible negative consequences of overloading, including damage to rigging equipment and damage to the ceiling (roof space frame structure), had occurred in this case.

115.  PW14’s evidence was specifically on the causes of the falling down of the LED Wall. He opined that the incident had been triggered when one of the two suspension wire ropes of the LED Wall had broken (the rope being at a lower layer of trusses, beneath the Main Truss), that the rope had broken due to rapid deterioration, and the accelerated fatigue failure of the rope had been due to a combination of factors including the inferior condition of the wire rope and damage to it due to the poor design of the winch system suspending the 6 LED Walls.

116.  As to who was responsible for the winch system and providing the associated parts (including the wire rope that had snapped), the evidence from prosecution witnesses is clear that it was 銚龍. The relevant evidence is as follows:

(1) PW8 testified that 銚龍was responsible for the wires, winch and the frame encasing the LED. The LED provided by ITP needed to be installed into the frames by 銚龍. 銚龍 must also have been provided with the weight of items to be hung.

(2) PW9 testified that the design was for the LED Walls to be able to go up / down and rotate, and the Suspension System was done by 銚龍. The wires and the motor must be able to support the LED weight. 銚龍 must have communicated with him about the weight. PW9 also agreed that 銚龍 could ask him about the weight if they had any question. The 32 pieces of LED needed to fit exactly, and each piece had to be bolted down into the frame, thus PW9 did provide a sample of the LED (the physical item) for 銚龍 to make the frame.

117.  It is clear that 銚龍 staff communicated directly with ITP staff (including PW9) regarding their work for the Concert.

118.  It is of note that the problematic LED Wall (and the wire ropes suspending the same) had been causing issues the day before the incident. PW9’s evidence was that on 27 July 2022 (the third day of the Concert),someone had informed him that the LED Wall had a “high/low” (tilting) issue and he had been asked to go to the HKC to deal with the issue. This was the LED Wall that subsequently fell on the next day. It was discovered that the issue was a mechanical one, so HHL workers had to be asked to check what the problem was. A HHL worker had then lowered the wall and had climbed onto the top of the wall (where the wire was attached to the LED frame) to do the checking. As the tilting issue did not concern any ITP technology problem, PW9 was not involved in fixing it, but he did discuss the issue with HHL workers. The evidence shows that no one at the time had said that if this LED Wall was unsafe, then they should stop using it and take it down.

119.  PW14 opined that if there had been a tilting issue one day prior to the LED Wall falling down, this was an indication that the winch system needed to be looked into to make sure this problem could be resolved; the issue could be caused by the loosening of the eyebolt (due to twisting of the rope) or a spooling issue – which all pointed to a problem with the winch system.[79]  If this problem had been discovered one day before the incident, and the LED Wall had been taken down / not used (once the tilting had been discovered), the incident obviously would have been prevented.

120.  It is worth noting that it was PW14’s opinion that the weights of the other equipment erected on the mother truss (weighing more than what was reported in the Loading Tables) was irrelevant to the cause of the incident.[80]

121.  It is also of note that PW14 observed that most of the equipment on the mother truss, except for the LED Walls, had been equipped with one or more safety wires to prevent accidental falling in case the rigging harnesses failed.[81]  During cross-examination, PW14 agreed that if other equipment had been installed by a different contractor (i.e., EIL), whereas only the LED Walls had been installed by this contractor (i.e., HHL), this would make sense / be logical.

122.  Given that an actual sample of the LED Wall had been given to 銚龍 for the design and construction of the frame and winch system to hold up the walls, in all likelihood 銚龍 came up with the design (including determined the required fatigue resistance / breaking strength of the suspension rope) from that, as opposed to relying on any dimensions in documents or weight figures in the Loading Tables. And given the bad design of the winch system, and the poor installation of the winch system and the eyebolts (including misaligned spooling guide rollers) by 銚龍, as detailed in PW14’s expert report (P86), the choice of using suspension wire ropes of inferior condition and workmanship (which did not meet the requisite safety margin) was obviously just another aspect of the inferior standard of work / shoddy approach to the work 銚龍 did for the Concert.

123.  I do not accept that the evidence shows that銚龍was influenced by any underreporting of weight in the Loading Tables in their choice to use ropes of inferior quality which did not meet the requisite safety margin to suspend the LED Wall. I find the prosecution has failed to prove that any false weight figure in the Loading Tables was a contributory cause to the incident of the LED Wall falling down.

Safety of paramount concern / no insistence on the use of the 6 LED Walls / no motive to falsify

124.  It is clear from the evidence of the prosecution witnesses that safety was a top priority for the Concert, that there was no requirement or necessity that the LED Walls (or a certain number of them) had to be used[82], and the stage design would be changed if there was any safety concern (including the removal of any piece of equipment if it posed a potential safety risk).

125.  One example of this was the 12 gondola / hanging boat concept. Music Nation had proposed that 12 gondolas (one for each member of MIRROR) would be suspended from the ceiling of the venue, and glide in a clockwise direction above the audience area. As it involved objects moving above the audience area, the organiser was asked to reconsider the idea by the LCSD (after D1 had expressed concerns about safety to PW2) (D1-1 and D1-2).[83]  The gondola proposal was not used by Music Nation in the end as a result of this.

126.  I accept the argument of the defence that the Defendants lacked motive to make the alleged false representations.[84]  Given the LCSD and Music Nation placed safety as a priority, the Defendants had no interest in getting an overloaded rigging arrangement approved using deceptive means. They would not have faced pressure to make false representations, nor would they have anything to gain personally in doing so, given their roles in the Concert were only as coordinators / a lighting designer.[85]  Moreover, the evidence supports a simple solution to any overweight issue – remove the 6 LED Walls.[86]  It is clear from the evidence of PW1 and PW2 that the LCSD would give opportunities for EIL / Music Nation to resolve any issue instead of exercising its power to postpone or cancel the Concert, especially if the shows had not yet begun[87], and the Defendants knew of this (given they had worked on many other concerts at the venue before). The evidence supports the contention that the Defendants would not feel the need to falsify the weights on the Loading Tables (given the risks) when the chance of postponement / cancellation as a result of the overweight issue was slim.[88] 

The Defendants’ knowledge of the stated weight of the PA Speakers

127.  The prosecution stance is that D1-D3 knew the weight of the PA Speakers from the brochure of the speakers and the information stated on the back of the speakers at the warehouse of EIL.

128.  It is the prosecution case that “[g]iven that some K2-type PA speakers were found in EIL’s warehouse where D1-D3 should have frequently attended in the preparation of the Concert and the potential overweight of the equipment to be hung at the HKC ceiling (including the PA speakers) had become a live issue since the meeting on 12 May 2022, there is sufficient basis for this Court to find that D1-D3 must have paid special attention to the actual weight of each column of PA speakers (being at least 616 kg) and the total actual weight of 8 columns of PA speakers (being at least 616 kg x 8 = 4,928 kg, i.e. about 10,841.6 lbs), so as to avoid any overweight and ensure the safety of the rigging arrangement.”[89]

129.  I am unable accept this submission by the prosecution. I have explained why I find that D1-D3 did not pay special attention to the weight of equipment, especially after the design change from 12 walls to 6 walls (when they likely became even more at ease that the weight issue had been resolved). D1-D3 were not engineers and not responsible for calculating the weights of items to be hung – there was no particular reason they would bother to look at the weight of PA Speakers stated in a brochure or on the back of any speaker. Moreover, the brochure was not found in their possession (but in EIL’s warehouse, from the computer of the audio manager); there is also no evidence to show D1-D3 had ever attended EIL’s warehouse. It is farfetched to say D1-D3 must have seen the stated weight of the 8 PA Speakers in the brochure or on the back of the speakers. Indeed, it is logical that they would not have paid any attention to the same even if they had seen such information.

Findings in relation to the elements of the offences

Falsity of the representations made (Charges 1 and 2)

That the representations were as to the actual weights of the equipment

130.  The particulars of the two charges allege that the three Defendants dishonestly (in Charge 1) or by deceit (in Charge 2) “falsely represent[ed] in the two Loading Tables that the weight of various equipment stated therein was the actual weight of the equipment”. It is submitted by the defence that to prove its case, the prosecution must first establish “the making of the allegedly false representations, in the sense that the Loading Tables contained untrue representations as to the actual weights of the equipment, and that such representations were dishonestly or deceptively made” and the prosecution cannot prove these particulars.[90]

131.  In its oral closing submissions, the prosecution argued that: “when one looks at the charge particulars, the term actual weight should not be strictly confined to mean an object’s weight as measured on a scale but instead it should be broadly understood as referring to an object’s weight that is accurate and can truly reflect it.” However, this begs the question posed by the defence: How accurate? (Broadly accurate, roughly accurate or a roughly accurate estimate?) It is important to look at what the Loading Tables actually say about themselves – there is no express representation that the weight figures contained therein were accurate or even roughly accurate. In fact, the Loading Tables represent the weights as being rough estimates.[91]

132.  On the Loading Tables themselves, the weight figures were clearly calculated by multiplying the number of a certain piece of equipment to be used with the estimated / rough weight of one unit of that equipment, or the length of a piece of truss with its weight per unit length. PW13’s evidence supports this, and this is also apparent and patent from the way the numbers are presented on the Loading Tables. For example, the first item in 1.1 of P18 is stated to be “Roof Truss with (168m Roof Truss = 2,688 lbs)”: the weight figure of 2,688 lbs is obviously arrived at by multiplying the unit weight of 16 lbs/m for the roof truss stated at the top of the Loading Table with the length of the truss[92]  (being 168m). Another example is item 5 in 1.1 of P18 stated to be “12 no. Up/Down Artist with one Artist (in total weight = 150 x 1.2 = 180 lbs each) in total 180 x 12 = 2,160 lbs”: the total weight figure of 2,160 lbs is clearly arrived at by multiplying the rough / estimated weight of one MIRROR member (i.e., 150 lbs) by the factor of 1.2 (given it is a moving load[93]) and then by the total number of members (i.e., 12). 

133.  I find that a person reading the weights presented on the Loading Tables would not read them as representative of the actual weights of the equipment listed, and when the Loading Tables were submitted to the LCSD, it was not represented that the weights stated therein were actual weights of the pieces of equipment.[94]

That the errors in the Loading Tables were deliberate or intentional

134.  I shall not repeat the observations and findings regarding all the obvious mistakes and errors in the Loading Tables set out under the headings of “Negligence by Fugro in the vetting of the Loading Tables” and “Mistakes and problems in the Rigging Plans and the Loading Submissions” above.

135.  I find that the evidence points at the author of the Loading Tables being negligent / incompetent / inexperienced when preparing the tables, leading to the errors.[95]  The weights reported in the Loading Tables were calculated using rough figures (which were sometimes erroneous / inaccurate), such as the rough / assumed length of a truss from P75 and the rough weight of a unit of an item. Some accessories such as wires[96]  were omitted from the weight calculations. These rough figures and simplifying assumptions led to the compounding and amplification of errors and mistakes in the calculated weights reported. All this supports the author being careless and sloppy rather than deliberate in making the mistakes.[97]  Some errors were so obvious that it is inconceivable they were made by a person wanting to hide his/her deliberate misrepresentation. An example is item 6 of 1.1 of P18: “8 nos. of PA Speaker 1-8 (in total weight = 1,600 lbs)” – when the measured weight by the police of one PA Speaker was already roughly 1,600 lbs[98]. Indeed, looking at the prosecution’s table of “magnitude of overweight” (reproduced at §36 hereinabove), it can be seen that the magnitudes of underreporting was 5, 6, or even over 7 times for various equipment, all of these being glaring discrepancies. This must be considered in the context of the author believing / knowing that the figures therein would be subjected to scrutiny by others, including the necessity of the document to go through vetting by a professional engineer before approval for the Concert to proceed would be granted. The author would not anticipate that the professional engineer would be negligent in performing the vetting such that the blatant weight misrepresentations (if intentionally made by the author) would go undetected.

136.  Moreover, as already stated, not only were the weights of various equipment conspicuously wrong on the Loading Tables, the Rigging Plans and other Loading Submissions were full of errors – which further goes to show the author(s) of these documents to be negligent, careless and inexperienced in general. Indeed, one would expect someone who was intentionally underreporting the weights on the Loading Tables to try to avoid alerting the vetting engineer to problems in the tables by minimising other mistakes. The author of the Loading Tables even left out the calculations behind the reactions R1-R40, which was the exact thing Fugro had to review. The fact that the documents were riddled with conspicuous mistakes and missing essential information and calculations points to the author(s) being someone / persons who was/were amateur(s) and incompetent (as opposed to one(s) who was/were deliberately and intentionally underreporting the weights).[99]

137.  I find that the prosecution has failed to establish that the errors contained in the Loading Tables, including any errors as to the stated weights of equipment, were deliberate or intentional.

Knowledge of falsity of the representations (Charges 1 and 2)

138.  I have already explained why I find that the prosecution has not proved that any of the Defendants had knowledge of the stated weight of the PA Speakers (in the brochure / on the back of the speakers). Nor is there any evidence they would know their actual weight (i.e., the measurement by weighing on a scale). I have also found that the prosecution is unable to prove that any of the Defendants had knowledge of the weight of the LED Walls (actual or as mentioned in any meeting or drawing).[100]  There is furthermore a complete lack of evidence in relation to their knowledge of the weights of the 8 other kinds of trusses / equipment listed in the Loading Tables that constitute the false representations alleged.

139.  I have also made findings regarding the preparation of the Loading Tables and the roles of the Defendants. It is clear that they were not involved in preparing the Loading Tables, nor did they have the professional knowledge to verify or check any of the figures or calculations in the tables (and it is obvious that it was not their jobs to do so). There is a dearth of evidence that they paid regard to the contents of the Loading Tables. On the contrary, it is likely that D1 and D2 (similar to PW2) only glanced through the documents (if even that) in their capacity as coordinators for the project and then (for D1) passed them on to persons needing the information and/or (for D2) kept the documents for record after having received them by email, not directing their attention to the contents.[101]  D1 even sent catalogues (identical to P87-P90) containing the manufactured weights of laser systems to PW2 (D1-4) half an hour after sending the first Loading Table to her – this supports the contention that D1 was not aware that the Loading Table contained false weight figures. As to D3, I have found that the phone conversation between him and PW12 cannot be used to support D3’s knowledge of the contents of the Loading Tables or his understanding thereof. There was also a paucity of evidence to show D3 had indeed read the contents of the Loading Tables and, if he had, that he had put his mind to the weights of equipment and trusses stated therein.[102]

140.  All in all, I find there is insufficient evidence to show any of the Defendants read the Loading Tables in any meaningful way or paid attention to the weight figures therein.

141.  In the premises, the prosecution has failed to prove the knowledge of any of the Defendants of the falsity of the reported weights in the Loading Tables.

Agreement to use dishonest means with the intention that the LCSD would be defrauded (Charge 1)

142.  The prosecution submits that the evidence shows the Defendants must have been aware of Fugro’s vetting of the Loading Tables submitted by EIL and in light of their roles in the Concert preparation, they “must have shared a common purpose / object to obtain the approval granted by Fugro, which was necessary for the LCSD to allow the Concert to proceed, through submission of the documents, including the Loading Tables”. [103]

143.  The prosecution further submits that: “If this Court accepts the Prosecution’s submission that D1-D3 must have shared a common purpose / object of obtaining the approval from Fugro, which was necessary for the LCSD to allow the Concert to proceed, and must have realized the significance of the Loading Tables to Fugro and the LCSD, the fact that D1-D3 had jointly and dishonestly made the false representations contained in the two Loading Tables strongly infers the existence of a conspiratorial agreement among them to employ the dishonest means, intending or in the realization that the LCSD would be defrauded by being deflected from performing their public duty, i.e. to only allow the Concert to proceed if the rigging arrangement was safe.”[104]

144.  I agree with the defence that the common purpose / object as articulated by the prosecution in its Closing is not unlawful or dishonest per se and cannot constitute the foundation of a conspiratorial agreement[105]  – a common fraudulent purpose is required[106].

145.  Even assuming that the common purpose alleged is to induce the LCSD to deflect from performing its public duty in allowing the Concert to proceed based on falsely represented equipment weights, the prosecution has still failed to demonstrate that the Defendants shared such a common purpose, and that they had formed an agreement to act together to pursue this purpose.

146.  The prosecution has provided no details as to how, when and why the Defendants agreed to jointly make the false representations. There is no evidence to indicate the existence of discussions or exchanges among the Defendants regarding the alleged conspiracy agreement, nor is there evidence to show any concerted action or joint effort by the Defendants to defraud Fugro / the LCSD.

147.  I have already made findings regarding the Defendants’ lack of motive to form the alleged agreement, their lack of knowledge regarding the “actual” weights and reported weights in the Loading Tables, their lack of appreciation for the misreporting / falsity of the representations in the Loading Tables, etc. As to the element of dishonesty, it is clear that the two-stage test in R v Ghosh[107]  is not satisfied.

148.  Thus, the prosecution has failed to prove the existence of the alleged conspiracy agreement, that any of the Defendants were parties to any such agreement, and the element of dishonesty.

A deceit practiced by the Defendants (Charge 2)

149.  In light of the failure of the prosecution to prove the Defendants had knowledge of the falsity of the representations in the Loading Tables, the prosecution has also failed to prove that a deceit had been practiced by them.[108]

Intent to defraud (Charge 2)

150.  Given my finding that there was no motive for the Defendants to form an agreement to defraud the LCSD by making false representations in the Loading Tables (and there were proper ways and sufficient time to rectify any overloading issue), albeit motive and intent are not the same thing, I do not see how the prosecution can prove in this case that the Defendants had the requisite intent.

Inducement (Charges 1 and 2)

151.  It is the prosecution case that: “the false representations contained in the two Loading Tables induced PW10 of Fugro to have issued the Stability Certificate certifying that the rigging arrangement was safe for the intended use, which thereby induced PW1 and PW2 of the LCSD (who placed reliance on PW10’s assessment) to have allowed the concert to proceed.”[109]

152.  The particulars of Charge 1 allege that the Defendants conspired together to defraud staff of the LCSD by making false representations in the Loading Tables, “thereby inducing the Manager(s) of the LCSD … to allow the concert … to proceed”; the particulars of Charge 2 allege that the Defendants by deceit, by making false representations in the Loading Tables and with intent to defraud, “induced the Manager(s) of the LCSD … to allow the concert … to proceed …”

153.  As such, the LCSD’s reliance on the assessment of PW10 (Fugro) or the involvement of Fugro (being the actual target of the alleged conspiracy / fraud) was not pleaded in the particulars of the charges.

154.  The defence complains that the way the prosecution formulated its case has deviated from the charges as pleaded, and further submits that for the element of inducement, Fugro’s negligent discharge of duties breaks the chain of causation.[110]

155.  The evidence shows that the LCSD staff relied on the assessment of Fugro (being an independent consultant). PW2’s evidence was that she herself had no engineering background, did not have knowledge about the data or numbers in the Loading Tables – she would just glance through the documents and pass them to Fugro. As such, even if mistakes or errors were contained in the documents (and even if they had been seen by the LCSD staff), that alone would not have caused the LCSD to stop the Concert from proceeding; the LCSD would still pass on the information to its external consultant for assessment, and Fugro’s vetting services are important in this respect. It is clear that that the LCSD relied heavily on the issuance of the Stability Certificate (P34) by Fugro in allowing the Concert to proceed.[111]

156.  On the evidence in the case, I find that the LCSD Managers themselves did not rely on the Loading Tables or the Rigging Plans in deciding whether to allow the Concert to proceed. Rather, the LCSD relied on external professionals, namely Fugro and UTS to do the vetting, and the LCSD only relied on the Stability Certificate and the UTS Report when they decided to allow the Concert to proceed. I have already found that Fugro (PW10) was negligent in the vetting process for the Concert. I find that PW10 failed to exercise an ordinary degree of professional standard, care and skill, and Fugro failed to properly discharge its contractual vetting duties for the Concert.[112]

157.  It is clear that if Fugro had discharged its duties properly, it would not have issued the Stability Certificate.[113]  I accept the argument that Fugro’s inadequate vetting services has broken the chain of causation in the decision of the LCSD to allow the Concert to proceed, and this goes to the issue of inducement. I find that the prosecution has failed to prove what is alleged in the particulars of the charges that it was the false representations that had induced the Managers of the LCSD to allow the Concert to proceed.

158.  The defence further argues that, for Charge 1, even if the misrepresentations in the Loading Tables had induced Fugro to issue the Stability Certificate (and this is denied by the defence), this does not come within the scope of the charge as the offence of conspiracy to defraud does not extend beyond “contrary to public duty” cases to “contrary to private duty” situations. I accept that it is well-established that the offence of conspiracy to defraud does not apply to a situation in which the agreement is to use dishonest means to induce a person to act contrary to his private duty.[114]  I agree that Fugro, as a private entity, was never characterised as having any public capacity in performing their vetting services in this case, and the scope of Charge 1 cannot be enlarged to also include Fugro’s roles and acts.

Causation – benefit to EIL or prejudice to Music Nation (Charge 2)

159.  For Charge 2, the prosecution must prove the causal link between the alleged deceit and the Prohibited Consequences, i.e., benefit to EIL or actual prejudice / substantial risk of prejudice to Music Nation.

160.  Regarding the “benefit”, the prosecution alleges that as a result of the LCSD allowing the Concert to proceed, EIL obtained a benefit of 10% of the contractual sum (which it would not have gotten if the first show of the Concert had been unable to take place). However, as already stated, I find the prosecution has failed to prove to the requisite standard that the LCSD would put a stop to the show or postpone it should inaccurate or incorrect information be found in the Loading Tables – instead, the practice of the LCSD (as shown by the testimony of PW1 and PW2) is to ask for correction and find ways to resolve the issue to enable a concert to proceed as scheduled, especially when the issue is discovered before the first show. In this case, the first Loading Table (P18) was submitted 13 days before the first show of the Concert, and I have already canvassed the possible ways to resolve the issue of overloading. In other words, the prosecution is unable to establish that the Concert would not have proceeded as planned but for the use of the alleged false representations in the Loading Tables.[115]

161.  As to the “prejudice”, the prosecution case is that Music Nation suffered a prejudice or risk of prejudice of the said 10% of the contractual sum as well as a financial loss due to the fourth show of the Concert being suspended and the remaining shows being cancelled. The prosecution submits that: “it was PW14’s evidence that one of the contributory causes to the falling of the LED wall was the significantly reduced fatigue resistance of the suspension rope due to an increasing ratio of higher actual load (520 kg as opposed to the represented load of 227 kg in the Loading Tables) to the rope breaking strength (found to be around 1,100 kg in the subject installation). This also resulted in a much lower safety margin in the actual suspension system when compared to the normal safety factors according to the international standards. In the premises, there is sufficient basis for this Court to find that there was a causal link between D1-D3s’ deceit (which thereby induced the LCSD to allow the Concert to proceed) and the falling of the LED wall (which thereby resulted in the suspension of the fourth show of the Concert and cancellation of the remaining 8 shows).”[116]

162.  I have already explained why I find that the falling down of the LED Wall did not have to do with the overloading at the ceiling level (roof space frame structure). The evidence fails to show that the alleged false representations caused the financial losses suffered by Music Nation. PW14’s evidence indicates the breakage of the suspension rope leading to the incident of the LED Wall falling occurred at a level beneath the Main Truss, so the wall would have fallen regardless of whether the rigging system was overloaded.

163.  I have also explained why I find that the prosecution has failed to prove 銚龍 was influenced by any underreporting of weight in the Loading Tables in their choice to use wire ropes of inferior quality to suspend the LED Wall (or that 銚龍 had even considered the figures in the Loading Tables in designing / constructing the inferior quality winch system with inferior quality suspension wire ropes).

164.  I find the prosecution has failed to prove that the misreporting of weights in the Loading Tables was a contributory cause to the incident of the LED Wall falling down (which led to the suspension and cancellation of shows). As such, the prosecution has also failed to prove that the use of the alleged false representations was a cause for any financial loss suffered by Music Nation.

CONCLUSION

165.  In the premises, I find the prosecution has not proved beyond reasonable doubt any of the charges against any of the Defendants. I therefore find D1-D3 not guilty of Charges 1 and 2.

ANNEX

LIST OF PROSECUTION WITNESSES[117]