HKSAR v. LOI HONG QUAN

CACC 464/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 464 OF 2002

(ON APPEAL FROM DCCC 6 OF 2002)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Introduction

1. On 23 August 2002, the applicant was convicted, following a trial in the District Court before Deputy Judge M. Chow, of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200 (charge 1), and six offences of being an agent accepting an advantage, contrary to sections 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance ("the Ordinance"), Cap. 201, (charges 2 to 7). He was later sentenced to a total of three years and nine months' imprisonment. The applicant seeks leave to appeal against conviction on all charges.

2. We are grateful to Mr Ian McWalters, who appeared on the respondent's behalf, for his industry in producing a workable summary of the general background and the cases for the prosecution and the defence. We propose, in large measure, to adopt this.

3. The seven charges arose out of a joint venture development project at Tung Chung Station Development Package II (Site 4) ("the Project") by Tung Chung Station Development Company Limited ("TCSDCL") and Mass Transit Railway Corporation ("MTRC"). Seven high-rise residential blocks (Blocks H1-H7) were to be built in the Project.

4. Mr Anthony H.H. Ng was appointed as the Authorised Person ("AP") responsible for co-ordinating all building works regarding the structural elements of the residential development of the Project.

5. Mr Yau Yiu-fong, Francis (PW8), an Associate of Maunsell Consultants (Asia) Limited ("Maunsell"), was appointed by MTRC as the Registered Structural Engineer ("RSE"). As the RSE for the Project, PW8 was the consultant on civil, structural and geotechnical matters. From time to time PW8 and his colleagues in Maunsell provided structural engineering services and technical advice to the AP in accordance with the provisions of the Buildings Ordinance, Cap. 123.

6. The applicant was employed by Maunsell as the Resident Engineer at the Project. This employment extended from July 1997 until May 1998.

7. In May 1997, the Foundation Contract, namely, the High Rise Blocks Contract, No. C403, in respect of the construction of seventy-six bored piles in Blocks H1-H4 of the Project was awarded to I-P Foundations Limited ("I-P"). Mr Carl Voigt, then the Operations Manager of I-P, was in overall charge of the construction of the bored piles. Mr Li Che-hing (PW1), Mr Ko Chi-kwong (PW4) and Mr Yu Chun-man (PW7) were respectively the Project Manager, Site Agent and Site Engineer employed by I-P, all of whom were required to be permanently stationed at the site to oversee the bored piles works.

8. Sunley Engineering & Construction Company Limited ("Sunley") was sub-contracted by I-P to carry out the bored pile works for Blocks H1, H3 and H4. Cheung Pak-lam (PW11) was Sunley's Site Agent, responsible for overseeing its work. I-P also sub-contracted the cutting and prefabrication of reinforcing steel cages to an engineering company known as Hung Cheong in which Tam Yu-wao (PW13) was a partner.

9. At this site, I-P engaged in large scale short-piling which was investigated by ICAC and resulted in PW1, PW4 and PW7 being prosecuted. They were convicted and sentenced to periods of imprisonment which were increased by the Court of Appeal following an application for a review of their sentences by the Secretary for Justice (see: Secretary for Justice v Li Che-hing & others [2000] 4 HKC 43).

The charges and prosecution's case

10. It was alleged by the prosecution that soon after the applicant took up duties at the site, the staff of I-P initiated measures to corrupt him for the purpose of ensuring that he would remain favourably disposed towards I-P when overseeing the construction of the foundations.

11. Six of the witnesses called by the prosecution gave evidence under immunity, namely, PW1, PW4, PW7, PW11, PW12 and PW13.

First charge

12. The first charge alleged that between 13 August 1997 and 28 February 1998, the applicant:

".... conspired together with Carl Voigt, LI Che-hing, KO Chi-kwong and YU Chun-man to defraud the Buildings Department and the developer of the Tung Chung Station Development Package II (Site 4) (the project), namely Tung Chung Station Development Company Limited (TCSDCL) and its agent by dishonestly:-

(1) concealing from the Buildings Department and TCSDCL and its agents the fact that problems had occurred in the process of constructing bored pile number 23 of Block H2 for the foundation works of the project causing the structure of the said bored pile to deviate in a material way from the plan approved by the Building Authority and that these problems had created defects in the said pile which had rendered it unable to perform the function for which it was designed; and

(2) concealing from the Buildings Department and TCSDCL and its agents the fact that remedial work had been done to bored pile number 23 of Block H2 causing the structure of the said bored pile to deviate in a material way from the plan approved by Building Authority, in an attempt to correct the defects that had been caused to the pile in the process of its construction and which had rendered it unable to perform the function for which it was designed."

13. The prosecution alleged that as the Resident Engineer for the Project, the applicant was responsible for supervising the foundation works performed by I-P. As part of his duties, the applicant was required to report to PW8 all problems that arose in the construction of the bored piles. It was then up to PW8 to decide whether to give his approval for remedial works to be started. It was important for the applicant to inform PW8 of any problems associated with the bored piles because, as the RSE, PW8 was under a duty to apply in writing to the Buildings Department for approval before commencing any works (see: regulations 32 and 33 of the Building (Administration) Regulations, Cap. 123):

"Where it is desired to alter or add to any building works .... for the commencement of which consent has been given, ...." [Reg. 33(1)]

14. In the early hours of 13 August 1997, PW4 and PW7 discovered problems in the concreting process of bored pile number H2-P23 ("Pile 23").

15. On 3 September 1997, when PW1 went to the site, he realised that the problems with Pile 23 might involve defects which would render it unable to perform the function for which it was designed. A drilling test on 17 September 1997 confirmed that there was a cold joint in the concrete between 16.5 and 17 metres below the ground level. At that stage, the applicant was unaware of the problem with Pile 23. However, when he did become aware of it, PW1, PW4 and PW7 went to have a number of meetings with him. The applicant was urged not to disclose the problems that had occurred in the construction of Pile 23 to TCSDCL, MTRC or Maunsell because, if they knew about the problem, the work progress would be delayed and I-P would be required to pay a penalty. He was also requested to suggest a solution. During those meetings, the applicant said he would think about a remedial plan but he needed time.

16. A more detailed account of the evidence in relation to the problems associated with Pile 23 and of the applicant's involvement in the remedial work resulting from those problems is unnecessary in the light of the nature of the grounds of appeal which touch upon this charge.

Second charge

17. Charges 2 to 7 each alleged the acceptance of advantages by the applicant in the form of the various "sweeteners" he was given by I-P for showing favour to them. Taking the particulars of the second charge in full, it was alleged that the applicant:

".... an agent, namely a Resident Engineer of Maunsell Consultants Asia Limited (Maunsell), on a day unknown between 1st October 1997 and 30th October 1997, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely a favour in the form of the payment of all the expenses of a package tour holiday to Hainan, as an inducement to or reward for or otherwise on account of the said LOI Hong-quan (the Applicant) showing or having shown favour to I-P Foundations Limited (I-P) in relation to the affairs or business of the said Maunsell, namely in his supervision on behalf of Maunsell of the construction by I-P of bored piles for Tung Chung Station Development Package II (Site 4)."

18. Between 12 and 17 October 1997, the applicant, PW1 and PW7 travelled together to Hainan. The cost of the trip for the applicant was funded by I-P. According to PW1, the applicant was offered the free trip to Hainan so that he would conceal the problem regarding Pile 23 and would design a remedial plan to cure it. According to PW8, the applicant never sought approval from him or from Maunsell before he accepted the free trip from PW1. PW8 said he would not have given his permission to the applicant even if he had been asked for it.

19. In mid-October 1997, a form BA14, signed by I-P, the AP and the RSE, was submitted to the Buildings Department. This certified that the construction of the bored piles in the Project (which, of course, included Pile 23) had been completed in accordance with the approved plan and that they were structurally safe. PW8 said that it was the duty of the applicant to ensure that I-P constructed the bored piles in accordance with the approved plan, to report any proposed alteration work that deviated from the approved plan and to obtain the required approval from the Buildings Department before proceeding with such alteration work. Despite the applicant's awareness of this, he nevertheless permitted remedial works to be carried out on Pile 23 commencing in mid-November 1997.

20. At all material times, neither the applicant nor anyone else informed Maunsell that problems had occurred to Pile 23 in the course of its construction or that it had been subjected to any remedial works.

Third charge

21. The third charge was very similar to the second. In this instance, it related to the applicant's acceptance, as an agent, of an advantage on a date unknown between 1 May 1998 and 31 May 1998, namely:

"a favour in the form of the payment of all the expenses of a trip to Danshui ...."

22. In May 1998, after Phase 2 of the foundation works had been completed, the applicant solicited hostess escort services from PW7. In order, allegedly, to keep the applicant sweet, PW7 obtained approval from Mr Voigt, I-P's Operations Manager, to offer the applicant a free trip to Danshui on the Mainland. The applicant, PW7 and Tan Kai-ming (PW14), who was a site clerk of I-P, went to Danshui together. During the trip, PW7 treated the applicant to karaoke, meals, hotel accommodation and hostess escort services. Later on, PW7 obtained reimbursement from I-P of his expenses, including those incurred by the applicant. According to PW8, the applicant had not sought his permission to travel to Danshui and he would not have given it even if the applicant had requested it.

Fourth charge

23. The particulars in the fourth charge related to a date unknown between 1 July 1997 and 31 August 1997 and alleged that the applicant:

".... accepted an advantage, namely the payment, release or discharge of the said LOI Hong-quan's obligation or liability to pay for the international/infoline call charges and auto roaming charge incurred from the use of a mobile telephone whose number was 90207180, as an inducement to or reward for ...."

24. It was a term of the applicant's contract that I-P would provide the applicant with a mobile telephone for use in relation to his duties in the Project. In July 1997, the applicant asked PW1 if I-P would pay for international/infoline call charges and auto roaming charges which were not covered by his contract. PW1, having received approval from Mr Voigt, arranged the payment of those additional services by I-P. It was not in dispute that the applicant used this facility to make a large number of personal calls. Those which were made overseas were mainly in respect of calls to Australia and the Mainland and were made without a limit being placed on his use of the telephone.

25. Again the applicant never sought permission from PW8 or anybody in Maunsell to receive the benefit of the additional telephone services.

Fifth charge

26. The fifth charge was again set out in similar terms to charges 2 to 4 and alleged that on an unknown date between 1 July 1997 and 31 August 1997 the applicant accepted an advantage, particularised as follows:

".... the payment, release or discharge of the (applicant's) obligation or liability for the payment of monthly parking fees incurred in his personal capacity for a motor vehicle provided by (I-P) for his official use, as an inducement to or reward for ...."

27. Under his contract there was a term requiring the provision of vehicular transport by I-P to the applicant so that the applicant could carry out his supervision duties at the site during working hours. I-P provided a car with a driver.

28. In July 1997, the applicant requested I-P to allow him to use the vehicle for both official and private use on a 24-hour basis and also to arrange a carpark space in Mongkok near his residence. Between July 1997 and May 1998, I-P reimbursed PW1, PW4 and Dennis Barlow with a total of HK$28,700 in carparking fees in respect of this arrangement. The applicant never sought permission from PW8 or anybody else at Maunsell before accepting free carparking facilities from I-P.

Sixth charge

29. The particulars of the applicant's alleged acceptance of advantages in the sixth charge were that on divers days between 1 August 1997 and 31 January 1998, without lawful authority or reasonable excuse, he accepted advantages, namely:

".... the payment of the said LOI Hong-quan's obligations or liabilities, or the provision of favours, in respect of travelling to and accommodating himself in various parts of Mainland China and for all expenses incurred whilst there including meals, night-club entertainment and hostess escort services and the expenses incurred in employing the services in Hong Kong of hostess escorts, from CHEUNG Pak-lam as an inducement to or reward for ...."

30. Between 1 August 1997 and 31 January 1998, PW11 had, at the request of PW7, paid for the applicant to go on two trips to Danshui on the Mainland. On those trips PW11 paid for car hire, hotel accommodation, meals, and hostess escort services. As part of the same course of conduct, the purpose of which was allegedly to undermine the applicant's professional integrity, PW11 also paid for the applicant to enjoy hostess escort services and hourly hotel charges in Hong Kong on two to three occasions. According to PW11, the reasons for offering free trips to Danshui and hostess escort services in Hong Kong to the applicant was to maintain a good relationship with the applicant so that the applicant would not be too strict in supervising the foundation works.

31. The applicant never sought permission from Maunsell before accepting the payment of these expenses and the provision of these favours. The applicant also admitted under caution that on two or three occasions he did not pay for the hostess escort services.

Seventh charge

32. The particulars of the seventh charge were practically the same as those set out in the sixth charge. The advantages in this charge related to travel and accommodation in Zhangmutou on the Mainland and for all expenses paid while he was there including:

"meals, night-club entertainment and hostess escort services from Tam Yu-wao (PW13) as an inducement to or reward for ...."

33. Between 1 September 1997 and 1 February 1998, PW13 had, on two occasions, at the request of the applicant, treated the applicant to an all-expenses-paid holiday to Zhangmutou. On one occasion PW4 accompanied PW13 and the applicant. According to PW13, the expenses he paid on behalf of the applicant included travelling expenses, hotel accommodation, meals, karaoke and hostess escort services. PW13's reasons for treating the applicant was to maintain a good relationship with him so that the applicant would be lax in his supervision.

Defence case

34. The applicant elected to give evidence.

35. He stated, amongst other things, that since he had been trained as a design engineer, he lacked relevant on-site experience. He said that he had no support from Maunsell and that he had no idea as to when and what he should report to PW8. Regarding the defects in Pile 23, the applicant said he had been misled by I-P into believing that it was just a minor problem which could be remedied by I-P. As to the reason why he did not report the problem of Pile 23 to PW8, the applicant said he believed PW8 would expect him to solve it by himself. The applicant also said that he was concerned about being reprimanded by PW8 if he reported the matter.

36. In relation to the first charge, it was said that while the applicant may have been negligent, he had not been dishonest. Remedial works had proceeded on Pile 23 but, at his insistence, a number of measures had been taken to ensure its safety.

37. In relation to the subject matters set out in charges 2, 3, 6 and 7, the applicant claimed that he had paid back his share of expenses to I-P in one way or another.

38. As regards charge 4, relating to the unrestricted use of his mobile telephone, the applicant claimed to rely on the defence of reasonable excuse although this may have arisen because of a misunderstanding of law. In reality, he denied having any corrupt purpose and he said that as he was the only contact point on a 24-hour basis, he might need to be contacted whilst he was out of Hong Kong. The applicant further said that he intended to reimburse I-P but in the event he had not been able to do so.

39. So far as charge 5 was concerned, in relation to the payment of his parking fees, the applicant again appears to have relied on a defence of reasonable excuse. He claimed that as he was expected to go back to the site from time to time, it was more convenient if he parked the contract vehicle in the vicinity of his residence. The applicant said he genuinely believed that I-P would consequently pay less than required under his contract as there would be no need for a driver.

40. The applicant also called two character witnesses, Messrs Lewey and Wong, each of whom had worked with him on his previous project in Siu Ho Wan. They spoke of the applicant as being hardworking and willing to help others.

The judge's assessment of the evidence

41. The judge found that the prosecution witnesses had told the truth and that she could safely rely on their evidence. In arriving at this conclusion, the judge had looked with caution at the evidence given by the immunised witnesses.

42. In the result, therefore, the judge concluded that the applicant's evidence had to be rejected and that the charges had been proved beyond all reasonable doubt.

The application

Ground 1 - conspiracy to defraud

43. In his first ground of appeal, Mr Chandler, on the applicant's behalf, submitted that the particulars of the conspiracy alleged in charge 1 were incomplete and "insufficient to establish" such an offence, and that "a conspiratorial agreement to dishonestly conceal the fact that there existed problems in relation to the construction of Pile 23 which rendered it unable to perform its function and that remedial work had been carried out" was not enough, without more, to establish the offence. It was said also that the charge failed to distinguish between the two named victims, the Buildings Department (a Government department) and TCSDCL (a limited company) and, in this sense, was duplicitous.

44. The second ground, which also concerned the first charge only, attacked the judge's findings and alleged that "the evidence accepted by the judge was insufficient to establish either the existence of the unlawful agreement or .... that the applicant was a party to it".

45. It is apparent from the judge's Reasons for Verdict that these contain no analysis of the law in relation to an offence of conspiracy to defraud. Such an analysis is not required in every case, but this had been a lengthy trial involving complex issues and some analysis was to be expected. The nearest the judge came to setting out what she found to have been proved on this charge was contained in the broad statement:

"I am satisfied beyond all reasonable doubts that the Defendant had conspired with the people from I-P to conceal the problems of (Pile 23) and the remedial works of it from the Buildings Department, Maunsell and the Developer." (Appeal bundle p. 83)

46. Earlier, the judge had found on the facts that the applicant had a duty to report the remedial work which was carried out on Pile 23 and that he had not done so. She went on to draw the inference that the applicant "kept his promise" to I-P not to disclose to anyone the problem which had arisen with Pile 23 leading to the remedial work which had to be done to it.

47. These findings were undoubtedly important in relation to a conspiracy of the kind alleged, but what were the ingredients of the offence which in this case needed to be proved?

48. In essence, the particulars of charge 1 were that the applicant was a party to an agreement with at least one of the others named in charge 1 dishonestly to conceal material problems which had occurred in building Pile 23 and the remedial work which had been done in an attempt to correct the defects which had been caused to that pile in the process of its construction.

49. The meaning of "intent to defraud" was considered in Welham v DPP [1960] 44 Cr App R 124 and [1961] AC 103 in the context of an offence of uttering forged documents with intent to defraud. As Lord Denning in that case expressed the matter (at p. 155):

"Put shortly, 'with intent to defraud' means 'with intent to practise a fraud' on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in any way by the fraud, that is enough."

50. Welham v DPP (above) was adopted in Wai Yu-tsang v R [1992] 1 AC 269, where an accountant working for a bank had agreed with others dishonestly to conceal the dishonouring of cheques purchased by the bank. Lord Goff referred, in the course of his judgment (at p. 276) in the Privy Council, to Lord Radcliffe's speech in Welham v DPP (above), saying:

"Lord Radcliffe agreed with the speech of Lord Denning, but went on to express in his own words his view of the meaning of the words 'intent to defraud' in section 4(1) of the Act of 1913. He rejected the proposition that in ordinary speech 'to defraud' is confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss, and continued at p. 124:

'Has the law ever so confined it? In my opinion there is no warrant for saying that it has. What it has looked for in considering the effect of cheating upon another person and so in defining the criminal intent is the prejudice of that person: what Blackstone (Commentaries, 18th ed., vol. 4, at p. 247) called 'to the prejudice of another man's right.' East, Pleas of the Crown (1803), vol. 2, at pp. 852, 854, makes the same point in the chapter on Forgery: 'in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it.''

He went on to say that the special line of cases where the person deceived is a public authority or a person holding public office, and there is no intention on the part of the deceiver to inflict upon him any pecuniary or economic harm, shows that such an intention is not necessary to convict a man of an intention to defraud. The remainder of the Appellate Committee agreed with both Lord Radcliffe and Lord Denning.

The authority establishes that the expression 'intent to defraud' is not to be given a narrow meaning, involving an intention to cause economic loss to another. In broad terms, it means simply an intention to practise a fraud on another, or an intention to act to the prejudice of another man's right."

51. In the present case, the essence of what was alleged was the concealment of a highly material deviation from the foundation work plans approved by the Buildings Department, not only from the Department itself but from TCSDCL and their agents, Maunsell, represented by PW8, the RSE appointed by MTRC. All of these parties shared a common interest that the foundation works should be properly carried out in accordance with the requirements of the Buildings Ordinance, Cap. 123, and its subsidiary legislation to be found in the Building (Administration) Regulations. The allegation was that there had been one agreement to keep these parties in the dark so far as the defect to Pile 23 and the remedial work carried out on it were concerned by the concealment from them of all such information. For precisely that reason, this was not a charge which was, as Mr Chandler had asserted, duplicitous. This was a single agreement which happened to affect more than one potential victim.

52. Dealing with Mr Chandler's suggestion that the mere concealment of material facts, as alleged in the first charge, was an insufficient basis to establish a conspiracy to defraud, the Privy Council in Adams v R [1995] 1 WLR 52, which was concerned with a conspiracy to defraud arising from a company's entitlement to recover secret profits made by its directors at its expense and where there had been concealment of material facts, their Lordships expressed the view (at 65) that:

"a person can be guilty of fraud when he dishonestly conceals information from another which he was under a duty to disclose to that other or which that other was entitled to require him to disclose."

53. Although that was a case where the conspiracy to defraud was based on economic loss, the passage we have just cited can also have application in a case where the interests of others are prejudiced. In the present case, there was a considerable body of evidence which proved the applicant's duty to disclose amongst which, exhibit P.2, headed: "Schedule of Duties of Resident Engineer/Site Representative" set out the applicant's duties in full, including the fact that he should:

".... keep Maunsell fully informed of what is going on ...."

54. The agreement to conceal material information in this case, of which the victims of the alleged conspiracy should, on the findings reached by the judge, have been made aware, amounted in itself to an act which prejudiced their interests and was itself the fraudulent conduct alleged in the conspiracy to defraud. As to this, the chief structural engineer for the Buildings Department (PW10) provided clear evidence that the problems with Pile 23 should have been brought to the attention of his department as well as the subsequent remedial work which had to be done. It was in the belief that the foundations had been carried out in accordance with the plans for which approval had been given that the Buildings Department later gave its consent to the commencement of "pile cap construction" for blocks H1 and H2.

55. Importantly, as it provided what was said to have been the motivation behind the concealment, I-P was concerned, according to PW1, not to let the interested parties know anything about any defects to the piling because of the consequent delay and financial penalties which might thereby be occasioned. He said that he, together with other co-conspirators, tried to persuade the applicant not to make a report to PW8 or anyone else at Maunsell.

56. Mr McWalters submitted in his written argument that when the applicant agreed, contrary to the clear terms of his specified duties, not to disclose the defects in Pile 23 or the remedial work which had been rendered necessary, that the Buildings Department, with responsibility for carrying out its public duty, was deceived into doing something which it would not have done but for the deceit or, alternatively, not doing something that, but for the deceit, it would have done.

57. All parties to the project, including the developers, the AP responsible for the co-ordination of the building works and PW8, the RSE on behalf of Maunsell, were affected by the concealment because each in their own way had a duty to ensure that the Buildings Department was notified as a means of ensuring that the foundation works were constructed in accordance with the approved plan. In this respect, a passage in Lord Goff's speech in Wai Yu-tsang (above) (at pp. 279-280) is helpful. This reads:

".... The question whether particular facts reveal a conspiracy to defraud depends upon what the conspirators have dishonestly agreed to do, and in particular whether they have agreed to practise a fraud on somebody. For this purpose it is enough for example that, as in Reg.v. Allsop and in the present case, the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk. It is however important in such a case, as the Court of Appeal stressed in Reg. v. Allsop, to distinguish a conspirator's intention (or immediate purpose) dishonestly to bring about such a state of affairs from his motive (or underlying purpose). The latter may be benign to the extent that he does not wish the victim or potential victim to suffer harm; but the mere fact that it is benign will not of itself prevent the agreement from constituting a conspiracy to defraud. Of course, if the conspirators were not acting dishonestly, there will have been no conspiracy to defraud; and in any event their benign purpose (if it be such) is a matter which, if they prove to be guilty, can be taken into account at the stage of sentence."

58. Part of the argument advanced in writing and adopted on this ground by Mr Chandler included the assertion that there was no admissible expert evidence that Pile 23 was an unsafe structure. In this context, he suggested that whilst PW8 was generally qualified as an expert, he was in fact not qualified to be utilised as an expert in this particular case because he had his own interests to serve. This submission was untenable and we do not need to devote any time to it, for the reasons which are set out in R v Chung Chen-hsin [1996] 1 HKCLR 120 where it was held that an expert's possible lack of independence went not to admissibility but to the weight to be attached to that expert's testimony.

59. It is plain, in our opinion, that there was a wealth of evidence capable of establishing a conspiracy to defraud provided the judge felt able, as plainly she was, to rely upon it as credible evidence. There was, for reasons to which we shall turn in our consideration of the third ground of appeal, no doubt whatever that the applicant was aware of a material defect in Pile 23 which he never reported to PW8. After the judge had rejected the applicant's testimony, a wealth of evidence was to be found of an agreement to conceal from the Buildings Department and TCSDCL both the fact of the defect and the remedial work done to that pile.

60. Once the prosecution had established this, the prejudice flowing from such concealment is almost too obvious to be stated. Building work would continue to completion leaving one of the piles, supposedly giving support to the building, in a potentially inadequate state. Although the judge did not spell out the exact nature of the prejudice to interested parties arising from the conspiracy, once the evidence of the prosecution witnesses had been accepted and the applicant's evidence had been rejected, there was no other conclusion which could sensibly have been reached. Indeed, this was implicit in the judge's findings.

Ground 2 - sufficiency of evidence

61. In this ground, the principal contention, not already covered by the first ground, was that there was insufficient evidence to show that the applicant was himself a party to the conspiracy alleged in count 1 as opposed to being merely another victim of it. In essence, Mr Chandler submitted that the judge's findings amounted to no more than an assertion that the applicant had a duty to report the problems with Pile 23 and that he had not done so "because of his promise to PW1, PW4 and PW7".

62. Mr Chandler, in advancing this ground, made considerable play of the fact that there had been evidence indicating that the applicant was not a member of the wider conspiracy involving short-piling on a large scale which had led to the conviction of PW1, PW4 and PW7. It had been accepted by the prosecution in the court below that those witnesses had used a number of means to deceive the applicant and others as to these particular fraudulent activities.

63. Having said this, there was evidence from PW1, supported to some extent by PW4 and PW7, that the applicant was well aware of the problems with Pile 23 and that he had been urged not to reveal them to Maunsell. It is to be noted that the evidence given by PW7 was from the slightly different perspective of someone who had taken less part in the discussions about Pile 23 with the applicant and, in one particular respect, his evidence differed from PW1. PW7 said that the applicant had not known about the problems with Pile 23 before the trip to Hainan (the subject matter of charge 2) took place. As to this, the judge concluded that the applicant had been aware of the problems with Pile 23 before he went on this trip but the full extent of the problem had only been explained to him after he returned from Hainan.

64. It is apparent, however, that once the applicant had learnt the scope of the problem, he then prepared a remedial plan and, on occasions, gave advance warnings to I-P employees when MTRC representatives were expected to come to the site.

65. There were, as Mr Chandler alleged, a number of discrepancies in the evidence given by PW1, PW4 and PW7 but the judge appears from her Reasons for Verdict to have been alive to these. On any view, subject to the element of dishonesty, there was an abundance of evidence that the applicant had engaged in a conspiracy to defraud with others identified in the charge.

Ground 3 - dishonesty

66. In his third ground of appeal, Mr Chandler submitted that the judge had fallen into error by omitting to determine whether the applicant had acted "dishonestly" when he agreed to conceal the problems which had arisen during the construction of Pile 23. In this regard, Mr Chandler placed considerable reliance upon the applicant's testimony to the effect that the combination of his inexperience and the ways in which he had been misled by others about the seriousness of the defect to Pile 23, had led him to believe he could solve the problem without resort to others.

67. Mr McWalters highlighted some of the passages in the Reasons for Verdict which illustrated, he submitted, not only why the applicant's evidence had been rejected but also why dishonesty, an essential ingredient of charge 1, had been proved to the judge's satisfaction despite her omission, in a case where we would have expected this to be done, to lay out the test in R v Ghosh [1982] 75 Cr App R 154. In R v Ghosh (at pp. 162-163), the English Court of Appeal set out a two-stage process for concluding whether dishonesty had been established, by looking first at "whether according to the ordinary standards of reasonable and honest people what was done was dishonest" (the objective test) and "if it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest" (the subjective test).

68. Mr McWalters submitted that these two tests were satisfied by what is implicit in the judge's findings particularly bearing in mind that the applicant's testimony, which had the potential for raising an issue as to the subjective element of dishonesty, was rejected in its entirety. Some of the passages from the Reasons for Verdict, highlighted by Mr McWalters in this respect, are worth setting out. The judge said:

"54. The Defendant said that the bad concrete was 2 metres down from the ground level. He said that he insisted that the bad concrete must be dug down to a level of good concrete. According to his version, that level was 12 metres down. In fact, it should be 17 metres. That was more serious (than) 2 metres. He still decided not to talk to PW8 about it.

....

56. PW4 and PW7 said that the Defendant was very much concerned about the remedial work. He supervised every stage of the work. The Defendant said that the remedial work took about 10 days to finish. However, PW1 said that to construct a bore pile only took a week. The Defendant still considered that it was a minor matter. That was totally contradicted by PW8 and PW10's evidence. In fact, PW7 said that remedial work last for one month.

57. Further, the initial stage of remedial work was to excavate the bad concrete by way of Caisson method. PW6 who was responsible for the work, submitted a bill for the work which he had done, exhibit 14, P47 and 48. The excavation work took 10 days and he had 3-4 workers to dig the bad concrete and to clear them away. It was specified in the exhibit 13 and 14 that (I-P) and PW6 shared the costs of the overtime (pay) of the workers. The normal working hours was 8 a.m. to 5 p.m. The workers worked up to midnight. PW6's company subsequently dug to 8.5 metres below the ground.

58. PW8 and PW10 said that Caisson method was cheap, but was (banned) in Hong Kong for reason of high risk. The Defendant said that he did not see any Caisson method used to clear the bad concrete. That could not be right. There were 3-4 workers to dig the bad concrete from 8 a.m. to midnight. In addition, big machines were used. He was the one (who) supervised every stage of the remedial work, how could he say that he did not see any Caisson method being employed on the site. My only inferences (were) that:-

1. The Defendant knew that Caisson method was (banned) in Hong Kong.

2. He could not explain the fact why he allowed the I-P to carry out remedial work unlawfully.

3. The fact that he knew I-P used Caisson method and he still failed to report to (Maunsell) because he had no good reason to it.

4. He was asked by I-P not to disclose the remedial work, therefore, he kept quiet about it.

59. The remedial work also involved:-

1.	Inserting of new cage
	In the prosecution case, after PW6 left the site, I-P used machines to break down the poor quality of concrete down to 17 metres below the ground level. PW2 moved the machines from his site to this site.
	PW7 said that I-P used 15-17 tonnes of (chisel), lifted up to 5 metres high and pounded down to the pile. In PW8's professional view, that would damage the pile because of the 'vibration' sent into the pile. The pile was unsafe.
	During (chiselling), the steel cage was also broken down into pieces. The new steel cage required to put in. The Defendant specifically requested to witness and to take photos of the lapping process of the new and the old steel cage. The Defendant was fully aware that it was one of the specific requirements in the approved plan that the steel bars had to be lapped with a length of 1.84 metres.
2.	Applying bonding agent
	The Defendant also advised that a layer of bonding agent to be applied before concreting again. The Defendant was fully aware that it was not stated in the approved plan. It was a deviation from the approved plan. He still failed to report it.

60. PW4 and PW7 said that they purposely waited until the Defendant left the site, they started concreting and inserted the steel cage without lapping. PW7 explained that during (chiselling) of the concrete, the steel cage was broken into pieces and it was not possible to do lapping.

61. When the Defendant returned to the site next morning, he found out what had happened. PW7 and Carl Voigt assured him that lapping was done. They did not take photos of this process despite that he had requested it.

62. There was no method that the Defendant would find out whether there was lapping between the steel cages. The Defendant just took the words from the I-P people. He said that he had to work on the basis of 'trust'.

63. PW8 said that without lapping of the steel cage, the pile was unsafe. Even in doubt or suspected that lapping had not taken place, he certainly would not sign the (form) BA14 and would report the matter to (Buildings Department). PW10 also said that this was a serious matter and should be reported to (Buildings Department).

64. However, the question was why the Defendant chose not to report it to PW8? This was no (longer) a 2 metres deep bad concrete problem, it went on to 12 metres', steel cage was broken, new steel cage had to put in and he wasn't sure whether there was lapping or not. He said he trusted the I-P people. The I-P knew that he watched every stage of the remedial work and demanded to take photo and to witness the whole process himself, they went ahead with the process without letting him see the one of the most important part of the remedial work, how could he still trust I-P and not to report them. Again, my only inference was that he kept his promise to I-P not to disclose the problem of (Pile 23) and remedial work to anyone. Bearing in mind that it was unlawful to carry out remedial work after BA 14 had submitted to (Buildings Department)." (Appeal bundle pp.53-58)

Dealing with what was implicitly the objective test for dishonesty the judge said:

"50. When claiming on one hand he had no experience on (bored) pile, how could he on the other hand claimed that it was a minor matter when he had no practical knowledge to it. Any sensible engineer would report the matter to the head office." (Appeal bundle pp. 52-53)

Later she said:

"55. And the truth of the matter was, no one from the (Maunsell) or the Developer, or MTRC or the (Buildings Department) knew about the problem of (Pile 23) and remedial work had been carried out by I-P. The Defendant had a duty to report, but he did not do it." (Appeal bundle p. 54)

Earlier, the judge had referred, again implicitly, to both limbs of the test for dishonesty when saying:

"48. The Defendant was fully aware that after the submission of the BA14 (a form sent to the Buildings Department), no further work on (Pile 23) could be carried out without the approval and consent from the (Buildings Department). He accepted that remedial work was carried out after the submission of BA14." (Appeal bundle p. 52)

69. Later in her Reasons for Verdict, the judge referred to a problem which had occurred in relation to "Pile 55". The applicant had reported this because no one at I-P had asked him to keep this quiet. As a result, PW8 had held a meeting with the architect and others to solve the problem. The importance of this finding, in other words, was that since the applicant had on a previous occasion reported to PW8 a problem in respect of some other pile, he must have known of his duty to make such a report. Indeed, the judge went on to say:

"68. The fact that there was no record of the remedial work from the I-P and the Defendant was because it was all done in secret. They left no document to be traced. As PW7 said it, once the remedial work was finished, they treated (it as if) nothing had happened.

69. The Defendant also admitted that he decided to drill 5 holes into the pile and inserted into each hole a twin bars to reproduce the 'Dovel Bar Action'. This new addition was clearly not on the approved plan. The Defendant agreed that it was (different) from the approved plan. He said this deviation from the plan only made Pile 23 stronger. Why he worried about the support strength of the pile when I-P told him it was bad concrete of 2 metres only. Bearing in mind that PW1, PW4 and PW7 had urged him not to disclose the matter to (Maunsell) and they asked him for a solution. This was what the Defendant did. He honoured his promise.

70. The Defendant accepted that the temporary casting was stuck in the shaft. He said that it was not a problem since it added strength to the pile.

71. In the approved plan, temporary casting had to be removed from the pile. Defendant said that similar situations occurred to other piles that the temporary castings were not removed from the piles. PW8 held meetings with architects and the others, the decision was to let the castings stayed in the piles.

72. Again, it showed that PW8 made the decision, not the Defendant. He had a duty to report. He purposely and intentionally concealed the problem of Pile 23 and the remedial work from (Maunsell), the (Buildings Department) and the Developer because of his promise to PW1, PW4 and PW7." (Appeal bundle pp. 58-60)

70. These findings adequately summarised the general nature of the evidence against the applicant and the reasons for the rejection of the applicant's evidence. Indeed, we can say, without criticism of the judge, that a reading of some of the relevant parts of the transcript revealed that the judge's summary had moderated the cogency of the evidence showing the applicant's knowledge of the extent of the defect to Pile 23 and his efforts to ensure that the problems stemming therefrom were kept concealed from those who were entitled to be informed about them.

71. This had been a 20-day trial and it is plain that the Reasons for Verdict omitted nothing on the facts which was material to the case of either side in the proceedings. Putting the applicant's evidence to one side, therefore, all the evidence overwhelmingly pointed to a dishonest cover-up. No other sensible conclusion could be derived from an examination of the facts and, whilst the judge should perhaps have dealt more directly in her findings with the issue of dishonesty, we do not consider that a failure to give a Ghosh analysis to the issue of dishonesty in the present circumstances was a material irregularity. Such an analysis would have amounted to a statement of the obvious when the applicant's account had been discounted and discredited.

Ground 4 - corrupt state of mind

72. Again, in the fourth ground, it was an alleged omission on the part of the judge to deal with an important ingredient of a charge, in this instance charge 2, which was the main complaint before us.

73. When the judge convicted on this charge of accepting an advantage in the form of a package holiday to Hainan, she described it as a "prize" to the applicant for his "design plan" for the remedial work to be done to Pile 23 and for his concealment of the matter from Maunsell and the developer. She went on to say: "This was a favour shown to I-P when he accepted this trip".

74. It is, of course, as Mr McWalters accepted, necessary to look, in such a case as this, at the state of mind of the person accepting the advantage (see: HKSAR v Tham Chee-seng [1998] 3 HKC 654 at 660-661). Nothing was said expressly by the judge in this regard but this, in our judgment, was implicit in her findings.

75. There was a history to the Hainan trip which involved an attempt by PW1 to pay a bribe to the applicant in early August 1997. This did not receive an unequivocal rebuff and was described by that witness as follows:

"I placed inside a white envelope some cash, about $3,000-$5,000, on that day. I handed it over to the defendant. He held it in his hand and opened it and took a look at it. After a moment of hesitation he handed the envelope back to me. When I went to hand the envelope to the defendant, I told him that was a red packet money for the work at the site. However, after looking at it and a moment of hesitation, he handed back the envelope to me and told me that I wouldn't have to give him that. And then he went on to say that there was mutual understanding between the two of us and as long as he could help me, he would definitely help me, and then I might reserve that sum of money for our going out to have fun and meals in the days to come." (Appeal bundle p. 269)

76. The importance of this evidence, which was accepted by the judge, was that the applicant was shown to have been expecting I-P staff to provide him with advantages while he worked on the site.

77. Very soon afterwards, on 13 August 1997, the problem with Pile 23 occurred. Leaving aside any discrepancies, particularly between the testimony given by PW1 and PW7, it seems to have been more or less common ground that the applicant was aware that some problems with Pile 23 existed and that remedial work would be needed after the trip was over.

78. The judge, referring to PW1's testimony in her Reasons for Verdict, said that it was suggested to him that I-P would pay for the trip and "he gladly accepted the proposal". His defence at trial that he had withdrawn $5,200 to cover the expenses of the whole tour was not believed by the judge. In fact, the Hainan tour was extended by a number of days during which time everyone paid their own expenses. The judge found that the applicant had not paid for the earlier part of the trip. These expenses were covered by I-P.

79. It was also a feature of this charge that PW8, effectively the applicant's "boss" as the judge aptly described him, was never informed about the Hainan trip. PW8 said that if he had known of it, he would not have given permission for the applicant to have gone.

80. Once again, it has to be said that the judge ought specifically to have dealt with the state of the applicant's mind, as an ingredient which was essential to the proof of this charge rather than leaving this as a finding which was implicit from a reading of the Reasons for Verdict. Having said this, once the applicant's version had been disbelieved, no other sensible inference existed. The evidence that the applicant accepted an advantage with a corrupt state of mind was manifest. Accordingly, we take the view that, in the particular circumstances which prevailed, the judge's omission was not one which gave rise to a material irregularity.

Grounds 5, 10 and 13 - jurisdiction

81. In grounds 5, 10 and 13, Mr Chandler (who did not appear in the court below) took issue with the lower court's acceptance of jurisdiction to try charges 3, 6 and 7 on the basis that the advantages alleged in charges 3 and 7 and most of those in charge 6, were "offered and accepted outside Hong Kong", namely in the Mainland.

82. This was not a point which was raised by defence counsel at trial and it is wholly misconceived. Mr Chandler's submission, which took into account various provisions in the Ordinance, ignored what is set out in section 2(2)(c) which provides as follows:

"(2) For the purposes of this Ordinance -

....

(c) a person accepts an advantage if he, or any other person acting on his behalf, directly or indirectly takes, receives or obtains, or agrees to take, receive or obtain any advantage, whether for himself or for any other person." (Emphasis added)

83. Mr Chandler's proposition was that section 9, under which the charges covered by these grounds of appeal were brought, had not been given the specific extra-territorial reach which is applicable to offences in breach of section 4 which provides, so far as that lengthy section is relevant to this contention:

"4. Bribery

(1) Any person who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, offers any advantage to a public servant as an inducement ....

(2) Any public servant who, whether in Hong Kong or elsewhere, without lawful authority or excuse, solicits or accepts any advantage as an inducement .... shall be guilty of an offence." (Emphasis added)

84. The words "in Hong Kong or elsewhere" do not feature in offences under section 9 but, in our view, Mr McWalters rightly submitted that section 4 offences were intended to encompass all forms of extra-territorial breaches as a reflection of a legitimate policy of the legislature to impose stricter controls over the conduct of public servants. So far as other agents are concerned, the reach of the bribery offence in section 9 extends only to those cases where the commission of the actus reus of the offence flows from a pre-existing meeting of minds within Hong Kong's jurisdiction.

85. Although Mr Chandler also argued under the umbrella of these grounds that even if Mr McWalters' submission was soundly based, there had been no evidence before the lower court to prove whether the advantages referred to in charges 3, 6 and 7 were accepted in Hong Kong, this ignored the clearest evidence that the applicant had agreed in Hong Kong to go on these trips to the Mainland. At no stage had it ever been suggested that any of these trips was a surprise outing of which he had not been made aware before leaving the jurisdiction. To the contrary, this kind of conduct eventually became a regular pattern which was shown by the evidence to have been initiated by the applicant. PW1, for example, referred to the applicant's supervision as being more lax when he was seeking advantages (appeal bundle pp. 264-266). When PW7 was cross-examined about his evidence that the applicant had been seeking advantages, he replied at one stage:

"The defendant did not specifically mention wanting to be treated on trips to Mainland China, he just said that he wanted to have some sort of entertainment, whether it was going to the nightclubs or going on a trip to Mainland China would be alright for him." (Appeal bundle p. 590)

Grounds 6, 12 and 15 - insufficient particularisation

86. We can take grounds 6, 12 and 15 together as each of these contains a similar complaint, namely, that the judge omitted, when dealing with charges 3, 6 and 7, to make a specific determination as to which of the particularised advantages which were set out in general terms in those charges as being allegedly accepted by the applicant amounted in law to advantages.

87. In charge 3, the "favour", which allegedly amounted to an advantage accepted by the applicant, took the form of the "payment of all the expenses of a trip to Danshui". In charge 6, the advantages the applicant allegedly accepted were said to have been "the payment of (the applicant's) obligations or liabilities, or the provision of favours, in respect of travelling to and accommodating himself in various parts of Mainland China and for all expenses incurred whilst there, including meals, nightclub entertainment and hostess escort services and the expenses incurred in Hong Kong of hostess escorts". Similar advantages were alleged in charge 7 which related to two trips to Zhangmutou.

88. Leaving aside for present purposes the separate issue of duplicity which arises in respect of charges 6 and 7, raised in grounds 11 and 14 to which we shall turn in due course, the point was made that in all these charges the payments made in respect of each item of expenditure must necessarily have included an element of "entertainment" which the Ordinance specifically exempts from being an advantage. By section 2(1), "entertainment" is defined as meaning:

"the provision of food or drink, for consumption on the occasion when it is provided, and of any other entertainment connected with, or provided at the same time as, such provisions."

89. It is, in our view, plain that "all-expenses paid" holidays were the basis of these charges. The fact that some of the expenses almost certainly related to the provision of food or drink which would have fallen outside the definition of an advantage if standing alone does not, in our opinion, detract from the main favours referred to in these charges, namely travel, accommodation and the provision of sexual services. With reference to the "free trips" to Hainan and Danshui the judge found that these "did not fall within the meaning of entertainment as defined in the Ordinance".

90. There was an abundance of evidence as to the actual acceptance by the applicant of the travel and accommodation as set out in charges 3, 6 and 7. Furthermore, these were not charges which repeated the errors made in HKSAR v Tang Hoi-on, Barry & Anor [2003] 3 HKC 123 where the travel tickets for the ferry journeys to and from Macau and for hotel rooms while in Macau had been omitted from the allegations contained in the charges.

91. In the present case, the accommodation and travel expenses were common to all three charges and amply justified in themselves the convictions provided the prosecution could prove, as the judge found they had in each case, that the applicant had accepted these favours. In doing so, the judge rejected the applicant's account as to charge 3 that he had paid PW7 for the expenditure incurred by him. Similarly, in charges 6 and 7 where the judge went through each of the alleged advantages, she rejected for sound reasons the applicant's account that he had repaid the cost of the two trips to Danshui and the two trips to Zhangmutou. Permission to accept any of these favours had at no stage been requested from PW8 who would have refused it if he had been asked.

92. There was a wealth of evidence to support these findings.

Grounds 7 and 8 - criticisms of charge 4

93. In his seventh ground, Mr Chandler raised a technical matter by alleging that the judge:

"erred in that in convicting the Applicant of the fourth charge she omitted to determine whether or not on the date specified in the charge there existed any obligation or liability in the Applicant to make payment of the specified charges in relation to mobile telephone 90207180 and consequentially whether or not the Applicant accepted an advantage. The evidence did not establish that the Applicant had any liability either on the date specified in the charge or at any time make payment for the specific charges."

94. We do not need to dwell on this ground as the point which was made was very properly conceded by Mr McWalters.

95. The evidence given by PW1 on charge 4 was that in late July or early August 1997, the applicant approached him and requested that IDD and roaming services be added to the mobile telephone he had been given under the terms of his contract. The applicant said that he needed to contact his parents in Australia. PW1 said he would talk to Mr Voigt about it and after approval was given, IDD and roaming services were duly added on 18 January 1998 (see: Admitted Facts para. 23, p. 26 of the Appeal bundle). Thereafter, I-P arranged for the payment of all the applicant's telephone call charges between November 1997 until the termination of the applicant's employment.

96. The mobile telephone itself, however, was registered under the names of I-P staff members, Mr Tan Kai-ming (between 27 September 1997 and 16 January 1998) and Mr Sammy Chan (from 16 January 1998 to 3 April 1998). For this reason, it was accepted by the respondent that the prosecution had no evidential basis for supporting a finding that the applicant himself had incurred a personal liability to pay the telephone bills at the time when he accepted these advantages.

97. Mr Chandler, by contrast to this approach, had laid emphasis on what he submitted was the wrong date which had been specified in the charge. All that we need to say in this respect is that even if there had been merit in the argument, the date itself was not, in the circumstances, a material averment. However, there was no merit in this argument as there was ample evidence to support a finding that the offence had been committed between 1 July 1997 and 31 August 1997.

98. Mr McWalters, in the light of his concession, submitted that the payment by I-P of the international/infoline call charges and auto-roaming charges on behalf of the applicant was on any view to be regarded as a "favour" given to the applicant according to its ordinary meaning and that it would cause no injustice to him if at this stage the wording of the charge was amended from the acceptance of an advantage, namely "the payment, release or discharge of (the applicant's) obligation or liability to pay for ...." to the acceptance of an advantage, namely "a favour consisting of the payment of ....".

99. It was apparent, on the findings of the judge, that the verdict would have been the same on whichever basis the case had been presented and that the applicant's defence would in no sense have altered by reason of this purely technical amendment to the particulars of the charge. Certainly Mr Chandler was at a loss to suggest any way in which the applicant might have approached his defence differently if the charge had contained the correct particulars which Mr McWalters has now proposed.

100. Accordingly, we propose to adopt the procedure conveniently set out in HKSAR v Tang Hoi-on (above) at p. 144, para. 39 which states that:

"39. The route by which this court is empowered to amend a charge upon appeal is traced in HKSAR v Huynh Bat Muoi [2001] 4 HKC 643, 659-660 .... But s 23 of the Criminal Procedure Ordinance (Cap 221) which, with s 79(1) of the District Court Ordinance (Cap 336) and s 13(4) of the High Court Ordinance (Cap 4), gives this court that power, enables the court to make an amendment if '... necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.'"

101. In the present case, we shall make the proposed amendment to charge 4 which, for the reasons we have given, we are satisfied will cause no injustice to the applicant.

102. In a closely related ground affecting the fourth charge, Mr Chandler submitted in his eighth ground of appeal that the judge had erred in convicting the applicant of accepting an advantage in the form of "a favour" which had been "extended to conceal the problems of Pile 23 and its remedial work" when this was inconsistent with the allegation in charge 4 (before amendment) of the acceptance of a "payment, release or discharge" of the applicant's obligation or liability to pay for the charges in respect of overseas calls and services on his mobile telephone.

103. In a sense, any consideration of this ground is superfluous in view of our decision to amend the charge to correct the technical mistake in the way it had been particularised. However, lest it be thought that even in its amended form, the charge was wrongly approached by the judge, we should briefly deal with this complaint.

104. In her assessment of the evidence relating to charge 4, the judge found that the applicant made telephone calls to the Mainland and to Australia "without control" because he did not need to worry about paying for them himself. Sometimes, the bill was as high as $6,900 for a month, representing a tenth of his salary. The judge rejected the applicant's account that he had made an agreement to pay all his bills at "one go" and that he had simply forgotten to do so because of his abrupt departure.

105. With this background, the judge found that the payment of the applicant's telephone bills was an advantage which he had accepted in return for "viewing the work with flexibility". As such, the applicant accepted a favour as a sweetener to ensure lax supervision on his part over the foundation work at the Project.

Ground 9 - criticism of charge 5

106. The ground of appeal which Mr Chandler advanced in respect of the conviction on charge 5 was in identical terms to ground 7 save that it related to the date of the payment, release or discharge of the applicant's obligation or liability for the payment of the parking fees. Again, it would appear that the date was not a material averment in the charge. However, there was agreed evidence which justified the date and we do not propose to dwell further on this aspect.

107. The monthly fees for parking amounted to about $4,000. Under his contract, the applicant was not permitted to have I-P's vehicle for his personal use. Nevertheless, the applicant requested this favour in late July or early August 1997. PW1 (pp. 310-311 of the Appeal bundle) said that he needed to speak to Mr Voigt (his supervisor) first. The applicant became very "unhappy" and said, in terms which were said to give rise to another illustration of his corrupt motivation: "Are you telling me that you cannot decide on such a trivial matter? So do you want me to go by the books, because, if you do, it makes it very simple for me". This sounded to PW1 "like some sort of oppression". PW1 duly obtained permission and, apart from times when others did so while he was on leave, he paid for the parking charges out of petty cash kept at the building site having been reminded by the applicant each month when payment was due.

108. An application was made by Mr McWalters to amend this charge along the same lines as for charge 4, by the deletion of the words ".... release or discharge of (the applicant's) obligation or liability for the payment ...." and by the addition of the words ".... a favour consisting of ...." leaving the essential allegation unaltered but the particulars slightly changed. The proposed amendment, in other words, would now allege that the applicant had accepted an advantage, namely, a favour consisting of the payment of monthly parking fees instead of the release of his obligation (which under this corrupt arrangement was always alleged to have been I-P's) to pay the parking fees.

109. Mr Chandler, consistent with his response in regard to charge 4, was unable to suggest any way in which the defence might have been advanced any differently other than to say that it might have been. It was plain to us that no injustice or prejudice of any kind would be occasioned by making the technical amendment which Mr McWalters suggested. We propose, in such circumstances, to do so. The amendment does not affect the substance of the allegation and no injustice arises from taking such a course.

Grounds 11 and 14 - duplicity in charges 6 and 7

110. Mr Chandler submitted in grounds 11 and 14 that charges 6 and 7 were bad for duplicity in that they each alleged, unlike the earlier charges, that the offences were committed on "divers days" over several months and, following from this, that advantages of more than one kind were accepted at different times. In particular, in charge 6, two separate trips, including accommodation, to Danshui were involved as well as hostess escorts there and in Hong Kong. Similarly, charge 7 covered two trips to Zhangmutou, accommodation and the provision of hostess escort services.

111. Again, the main thrust of Mr Chandler's argument was directed at the dates set out in these charges which he suggested revealed in themselves their duplicitous nature.

112. As to this, Mr McWalters conceded that the acceptance of advantages as alleged in this case did not reveal offences of a continuing nature. Importantly, he also accepted also that each of the advantages specified in charges 6 and 7 was easily identified and could have been made the subject of a number of separate charges.

113. Plainly, in our opinion, the allegations set out in charges 6 and 7 were duplicitous. We observe that no point was taken in the court below which alleged that the defence had suffered any prejudice arising from the duplicity. This may not, in itself, be surprising as the outcome of such a complaint, assuming defence counsel had thought to raise it, would almost certainly have been an application by the prosecution to split the two offending charges into four, in order at least to identify the acceptance on the four occasions covered by these charges when trips to the Mainland were embarked upon.

114. This was a material irregularity which gave rise to a consideration of the application of the proviso. Again, in this context, Mr Chandler, whilst opposing its application, was unable to say that the defence would have been run any differently if each alleged acceptance had been the subject of a separate charge. He merely responded that the applicant "might have run a different defence". This is a little difficult to understand when the applicant gave evidence to the same effect on both charges. It was the defence case that the applicant effectively paid back, in Hong Kong and on the Mainland, the expenses incurred on his behalf including payment for some of the prostitutes he had engaged.

115. The majority of the evidence relating to charges 6 and 7 was not challenged insofar as the various trips to the Mainland were concerned. Equally, the expenses incurred at nightclubs in Hong Kong went largely unchallenged. The only real dispute lay in the applicant's testimony that he had, as we have said, repaid the expenses which were incurred on his behalf. This account was disbelieved by the judge.

116. It obviously follows that if charges 6 and 7 had been split into separate offences to avoid the rule against duplicity and the reasons for that rule (see: Archbold [2004] paras. 1-135/140; Archbold Hong Kong [2004] paras. 1-123/-130), a conviction would inevitably have resulted on all the charges.

117. Bearing in mind also, as we have said, that defence counsel at trial took no objection to the form of these charges, and that the evidence was strong on all of them, we consider that this would be an appropriate case, so far as charges 6 and 7 are concerned, in which to apply the proviso pursuant to section 83 of the Criminal Procedure Ordinance, Cap. 221.

Grounds 16 and 17 - general criticisms

118. In his last two grounds of appeal, Mr Chandler raised criticisms of the summing up which applied generally to all the charges.

119. In ground 16, he submitted that the judge had conducted a "balancing exercise" by carrying out an assessment of all the witnesses called and, having found the prosecution witnesses to have been honest and reliable, she had moved straight to findings of guilt without first having examined the elements of each offence.

120. In ground 17, a similar complaint was made where it was alleged that the Reasons for Verdict fell below the standard required to ensure that the trial had been a fair one.

121. We have already dealt with a number of shortcomings related to the Reasons for Verdict, none of which were, in our judgment, such as to amount to material irregularities. The relevant principles concerning the approach to evidence which is in dispute were restated in HKSAR v Wong Wai-man & Ors (No.2) [2003] 4 HKC 517 at 524-5:

"A common dilemma faced by juries can be stated as follows: as between the prosecution evidence and the defence's, which should be believed and what is the proper approach? Here, the position is, with respect, well stated in the decision of Brennan J (with whom Deane J agreed) in R v Liberato (1985) 159 CLR 507. In that case, the High Court of Australia, in an application for special leave, had to consider in particular the direction given by a judge to the jury in a case which turned on the conflict between the prosecution's evidence and that of the defence. The majority of the High Court refused leave to appeal. Brennan J and Deane J were, however, in the minority in granting leave, but the particular passage we would highlight was not controversial and in our view makes good sense. At 515, Brennan J said this:

'When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.' (Emphasis added)"

122. If this trial had been before a jury, the summing up would have needed a direction to signify to the jury the proper approach they should take in finding a resolution to the evidential disputes which had arisen in the trial. However, a professional judge sitting in the District Court is not required to set out all the directions which would normally be given to a lay jury so long as it is apparent that a proper, sensible and fair approach has been taken to the relevant law and facts contained in the reasons which are provided for the verdict or verdicts ultimately reached.

123. Leaving aside that the judge in the present case had plainly kept in mind the appropriate burden and standard of proof, the judge provided sound reasons for rejecting the applicant's testimony. What was left in the case painted an overwhelming picture of corruption and conspiracy to defraud which was largely provided by the applicant's accomplices.

124. In our opinion, in spite of the qualification we have already made in respect of charges 6 and 7, both of which contained elements amounting to duplicity, the verdicts were neither unsafe nor unsatisfactory.

Conclusion

125. Having regard to some of the matters raised in these proceedings, we shall grant leave and treat the hearing as the appeal.

126. On charges 4 and 5, for the reasons we have earlier set out, the particulars will be amended. On charge 4 these will now read (showing the newly added words in brackets) as follows:

"LOI Hong-quan, an agent, namely a Resident Engineer of Maunsell Consultants Asia Limited (Maunsell), on a date unknown between 1 July 1997 and 31 August 1997, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely [a favour consisting of the payment of] the international/infoline call charges and auto roaming charges incurred from the use by the said LOI Hong-quan of a mobile telephone whose number was 90207180, as an inducement to or reward for or otherwise on account of the said LOI Hong-quan showing or having shown favour to I-P Foundations Limited (I-P) in relation to the affairs or business of the said Maunsell, namely in his supervision on behalf of Maunsell of the construction by I-P of bored piles for Tung Chung Station Development Package II (Site 4)."

127. The amended particulars of charge 5 will read (again showing the newly added words in brackets):

"LOI Hong-quan, an agent, namely a Resident Engineer of Maunsell Consultants Asia Limited (Maunsell), on a date unknown between 1 July 1997 and 31 August 1997, in Hong Kong, without lawful authority or reasonable excuse, accepted an advantage, namely [a favour consisting of] the payment of monthly parking fees incurred by the said LOI Hong-quan in his personal capacity for a motor vehicle provided by I-P Foundations Limited (I-P) for his official use, as an inducement to or reward for or otherwise on account of the said LOI Hong-quan showing or having shown favour to I-P in relation to the affairs or business of the said Maunsell, namely in his supervision on behalf of Maunsell of the construction by I-P of bored piles for Tung Chung Station Development Package II (Site 4)."

128. On charges 6 and 7, we shall, for the reasons we have set out already, apply the proviso.

129. The appeal is dismissed.