HKSAR v. LAM SING KEUNG alias STEVE

CACC 220/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 220 OF 2008

(ON APPEAL FROM DCCC NO. 1013 OF 2007)

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REASONS  FOR  JUDGMENT

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

Introduction

1.  The applicant, Lam Sing-keung alias Steve (D1 in the court below), faced 3 charges at his trial in the District Court before Deputy Judge J Lam.  On 14 June 2008, the judge acquitted him on the 1^st and 3^rd charges but convicted him on the 2^nd charge.  There were two other defendants, Hsieh Yung-hsueh, alias Diana, (Diana Hsieh) and Robin Frederick Keppel Radcliffe (Radcliffe) (D2 and D3 respectively), who were acquitted on the charges they faced. 

2.  The applicant sought leave to appeal against his conviction on the 2^nd charge. 

3.  At the conclusion of the hearing on 25 February 2009, we dismissed the application and, as it had lacked merit, we ordered the applicant to pay the costs of the proceedings, to be taxed if not agreed.  We now give our reasons for dismissing the application.

4.  The 2^nd charge on which the applicant was convicted alleged a conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200.  The particulars of the offence were that the applicant and Robin F K Radcliffe (D3), on divers dates between 1 January 2005 and 17 January 2005, in Hong Kong, conspired together and with Chan Cheuk-chi, alias Paul (Paul Chan) to defraud PCCW Limited by dishonestly:

“(i)  falsely representing in a debit note numbered AA 1537 [Exhibit P3] dated the 13^th day of January 2005 (‘the said debit note’) that accounting assistance services had been rendered by Baker Tilly Hong Kong Limited for various PCCW entities in the mainland China in 2004 and the agreed fee for the services rendered amounted to $432,000.00 Hong Kong currency;

(ii)  submitting or causing to be submitted a request for payment for professional fee charged by Baker Tilly Hong Kong Limited for accounting assistance services in PRC for 2004 in the amount of $432,000.00 Hong Kong currency [Exhibit P14];

and thereby causing PCCW Limited to make payment to Baker Tilly Hong Kong Limited for the settlement of the said debit note.”

Prosecution’s case

5.  The applicant, a qualified accountant, held the position of Director of Group Finance in PCCW since joining the company in 2001.  This gave him overall responsibility for all matters concerned with finance and accounting in the PCCW Group which included Mainland and overseas subsidiaries and joint ventures.  One such subsidiary was Unihub Global Services (China) Limited (‘Unihub’) which was based in Beijing.

6.  The essence of the case against the applicant was that in order to maintain a Hong Kong work visa for his mistress, Diana Hsieh, who came from Taiwan, he made an arrangement with a friend who he had known since his student days, Paul Chan (PW1), to make it appear as if the company for which Paul Chan was working had employed Diana Hsieh as a ‘Business Development Manager’.  Paul Chan, who gave evidence for the prosecution under immunity, was a partner in a firm of certified public accountants, Baker Tilly Hong Kong Limited (Baker Tilly), a client of which was PCCW.  The offence which is the subject of these proceedings arose because the monthly ‘salary’ paid to Diana Hsieh by Baker Tilly for the whole of the year 2005 was paid with money that had been provided by PCCW to Baker Tilly on the strength of false documents purported to relate to accounting services carried out in the Mainland by Baker Tilly on behalf of PCCW.  These documents were the ‘request for payment’ and the ‘debit note’ referred to in charge 2.  Both were dated 13 January 2005.

7.  For the six months prior to the dates set out in the 2^nd charge, between July and December 2004, the applicant had placed Baker Tilly in funds to cover the ‘salary’ payments made to Diana Hsieh although these were also entered in the Baker Tilly books of account to maintain the appearance of her being an employee of that company.

8.  As revealed in the particulars of the 2^nd charge, the full sum paid by PCCW to Baker Tilly in 2005 was $432,000 which, in reality, was used to cover Diana Hsieh’s purported salary.  This figure was arrived at because Baker Tilly had documentation to show that Diana Hsieh was being paid $35,000 a month in salary, added to which there was an additional monthly contribution to the Mutual Provident Fund (MPF) of $1,000.  The total payments for a full year amounted, therefore, to $432,000 which exactly matched the figure on the false debit note in which Baker Tilly had purported to invoice PCCW for accounting services. 

9.  In fact, Diana Hsieh had done no identifiable work for Baker Tilly throughout the whole of the time she was shown as having been employed by that company and her only known attendances at their business premises were in order to collect her monthly ‘salary’ payments.  As the judge expressed the matter: “Obviously she did not have to work [for Baker Tilly] because she was not really remunerated by [them]”.  The money, in other words, had come from PCCW through the dishonest arrangement set up between the applicant and Paul Chan.

10.  Although the applicant, Diana Hsieh and Radcliffe were acquitted on the 1^st charge, the evidence on the 1^st charge was relevant to the 2^nd charge in that this provided some of the background as well as the reason for the offence of which the applicant was convicted. 

11.  In essence, the allegation in the 1^st charge was that, between January and May 2004, there was a conspiracy between the three acquitted defendants and Paul Chan to defraud Immigration Department officers by falsely representing in an application for an extension of stay that Diana Hsieh would be “genuinely employed” by Baker Tilly as a Business Development Manager and by causing a contract of employment to be submitted purporting to show that Baker Tilly would employ Diana Hsieh at a monthly salary of $35,000, thereby inducing Immigration Department officers to grant her an extension of visa, contrary to their public duty.

12.  The judge acquitted the applicant, Diana Hsieh and Radcliffe on the 1^st charge because he found that while “one inference to be drawn” was that the sham was “contemplated by the four from the outset”, there was also the possibility that “the agreement was only reached when [the applicant] started funding [Diana Hsieh’s] salaries … around July 2004 after the Immigration Department had already granted extension of visa to [her]”.  The judge went on to say that he found this second possibility “more likely” and that as Diana Hsieh’s visa was granted on 28 May 2004 and the dates in the particulars of the charge were limited to the time when the visa extension was sought, “the sham employment might be contemplated only after [Diana Hsieh] had been granted her visa extension.” 

13.  The 3^rd charge, in which only the applicant was concerned, now has no significance in view of his acquittal.  The judge acquitted the applicant on this charge because the evidence relating to the offence came entirely from Paul Chan whose evidence he felt unable to believe.

14.  Returning now to the facts relating to the 2^nd charge, the applicant, as the Director of Group Finance of PCCW, was well aware that, as PCCW was a Hong Kong company which was listed on the New York Stock Exchange, it had to comply with the United States audit requirements (known as ‘SOX’ compliance, pursuant to the Sarbanes-Oxley Act for companies listed in the United States of America).  Evidence was given by Ms Susanna Hui (PW9), who took up the position previously occupied by the applicant after he left PCCW in September 2006, that a number of SOX audits had been carried out on PCCW subsidiaries in the Mainland in 2003 and 2004.  She stated that the applicant would have been able to approve payments for up to US$100,000 but, before doing so, there would have to be a set of five documents in support of payments by PCCW to accountancy firms which had carried out audit work.  These documents would consist of an external requisition form, an engagement letter, audit reports, a debit note and a payment request form and these would be coordinated by a subordinate of the applicant, Benson Chu, before they were submitted to the applicant for approval.

15.  When Ms Hui examined the PCCW file in relation to the payment of $432,000, she was able to find only the ‘Debit Note’ (Exhibit P3) and the ‘Request for Payment’ form (Exhibit P14), both dated 13 January 2005.  When other colleagues went to Beijing to investigate, they were unable to recover any further documents.  She confirmed that the amount of $432,000 shown on the Debit Note (Exhibit P3) was paid in full to Baker Tilly on 17 January 2005.  This had been done in an unusually short period of time so that it might have been that payment had been speeded up on request.

16.  The Debit Note (Exhibit P3), which the prosecution relied on to show that PCCW had been deceived by the applicant into paying $432,000 to support his girlfriend, was prepared by Ms Sanny Chan (PW3) who worked as a secretary for Baker Tilly.  She said that Radcliffe, a partner in Baker Tilly, had asked her to prepare a set of debit notes of which this was one.  The document itself bore the usual heading used by Baker Tilly and was a ‘Debit Note’ addressed to Mr Benson Chu at PCCW, carrying the reference number AA1537.  The ‘Professional Charges’ were set out as follows:

PCCW Limited	HKD
To Accounting assistance services rendered in relation to the review and documentation of operational procedures and control activities for various PCCW entities in the People's Republic of China in 2004.
Fee for the above, as agreed	380,000
Disbursements	52,000
TOTAL	432,000
RR/sc/d05/DN/P508
THIS BILL IS DUE AND PAYABLE ON PRESENTATION

17.  The payment of the charges set out in Exhibit P3 was described by a business analyst at PCCW, Ms Mak Siu-kuen (PW4).  She testified that in January 2005, the applicant’s subordinate, Benson Chu, gave her a copy of Exhibit P3 and asked her to prepare the payment.  She was not shown any supporting documents.  She then prepared a requisition form (Exhibit P14) for Benson Chu to take to the applicant for signature.  Exhibit P14 specifically referred to Debit Note No. AA1537 (Exhibit P3) and was a request for the payment of $432,000 in respect of:

“Professional fee charged by Baker Tilly for accounting assistance services in PRC for 2004 … Professional services rendered in relation to the review and documentation of operational procedures and control activities for PCCW entities in PRC for 2004.”

18.  Payment of the $432,000, as we have indicated, was duly received within days at Baker Tilly where Ms Joyce Yu (PW5) worked as the Chief Accountant.  She had been made to understand that Diana Hsieh had been given employment with Baker Tilly but that Baker Tilly, although Baker Tilly’s tax returns showed that Diana Hsieh had been “employed” since 5 July 2004, was neither responsible for her salary nor MPF contributions.  In January 2005, Radcliffe handed the Debit Note (Exhibit P3) to PW5 and told her that she could use the $432,000 to which it referred to pay Diana Hsieh’s salary once Baker Tilly had received this money from PCCW.  PW5 said that, as a result of what she had been told, she then paid Diana Hsieh’s monthly salary of $36,000, which included the monthly contribution of $1,000 to the MPF, until December 2005 when all the money paid by PCCW had been utilised.

19.  The prosecution also called evidence as to the manner in which Diana Hsieh was paid her ‘salary’ before the $432,000 payment from PCCW was received by Baker Tilly.

20.  Ms Janet Bibi Ferreira (PW2) was the Senior Human Resources Manager at Baker Tilly.  She was asked by Radcliffe to conduct an interview with Diana Hsieh and was informed that Diana Hsieh’s monthly salary would be $35,000 and that her job would be directed towards the development of business with China.  PW2 created Diana Hsieh’s job title and an employment contract was duly signed on 3 May 2004.  After that, Diana Hsieh’s visa extension was approved and, in mid-2004, Diana Hsieh brought some cheques with her to the office which, as PW2 found out, were to be used to pay Diana Hsieh’s salary.  For her part, PW2 did not know what Diana Hsieh’s work was and as far as she knew there was no designated desk provided for her.

21.  It is now known, and was duly admitted at trial, that the applicant paid Diana Hsieh’s salary, using two cheques to cover July and August 2004 and by making four deposits into Baker Tilly’s account to cover the months of September to December 2004.  Banking records confirmed this.

22.  In October 2005, PW2 was asked by Radcliffe to make a check on the Debit Note (Exhibit P3) in which the total of $432,000 was shown as being owed by PCCW to Baker Tilly for accounting assistance.  After speaking to the Chief Accountant (PW5), she found out that the Debit Note related to Diana Hsieh’s salary.  She became very angry and suggested that Diana Hsieh’s employment should be terminated. 

23.  Ms Cynthia Lo (PW6), a salaried partner at Baker Tilly, testified that late in 2005 or early 2006, she was asked by Radcliffe to check why there were no time costs for the $432,000 entry in the monthly report.  She checked the files and also the computer records but she was unable to find any.

24.  The prosecution called an expert forensic accountant, Mr S G Gidwani (PW8) who was able to say that the Debit Note (Exhibit P3) did not, as the defence were to suggest, refer to an audit service provided by Baker Tilly in regard to Unihub in Beijing.  He was able to make this assertion because of other documentation which plainly did relate to this service.  We shall deal with his evidence after we have dealt with the evidence give by a defence expert.

25.  We shall now deal with the evidence given under immunity by Paul Chan.  He testified that the applicant had asked him to conduct a China GAAP (‘Generally Accepted Accounting Principles’) audit and a Hong Kong GAAP audit for Unihub.  The work was done in part by Baker Tilly and partly by their associates in the Mainland, Tin Wha Certified Public Accountants (Tin Wha).  The total audit fee was $100,000 of which Baker Tilly took 70% and Tin Wha took the remainder.  The debit note from Baker Tilly in regard to this work (Exhibit P50), was dated 30 April 2004 and was addressed to the Directors of Unihub in Beijing.  It was in complete accordance with the ‘Letter of Engagement’ between Unihub and Tin Wha wherein it was stated that both Tin Wha and Baker Tilly were to examine Unihub’s statements and that Paul Chan himself would lead the engagement.  Paul Chan said that the fee was deliberately kept low for reasons for commercial goodwill.

26.  In mid-2004, Paul Chan said that the applicant spoke to him about his girlfriend needing a work visa.  She could, he said, bring in clients from Taiwan if Baker Tilly were to employ her.  Paul Chan spoke to Radcliffe about this and also introduced Radcliffe to the applicant.  Paul Chan said that two months later he learnt that Diana Hsieh had been employed by Baker Tilly but that the applicant was paying her salary.

27.  In early 2005, Paul Chan said that he received a fax from Benson Chu, following an earlier request from the applicant to assist him by issuing vouchers to help him to claim entertainment expenses (which the applicant had said he was unable to claim back because PCCW was a listed company).  The fax was a ‘cut and paste’ document using similar wording to that found in Exhibit P3 and Paul Chan said that he associated this with the applicant’s request for assistance.  He then passed it to Radcliffe without revealing his suspicions.  Later, when payment was received, Paul Chan said that he gave little thought to it until, in November 2005, Benson Chu sent him a copy of Exhibit P3 with a request, which he duly carried out, that he should amend some of the particulars on it (Exhibit P4), noting at the foot of the page, amongst other things: “Not related to Diana!”  When Paul Chan spoke to Radcliffe about it, he was told that Exhibit P3 covered Diana Hsieh’s salary for 2005 while Exhibit P4 was to be used for her salary in 2006.  Paul Chan said that he told Radcliffe that this was a cheat and later he learnt that Exhibit P4 would not be used and that Diana Hsieh would not be employed any longer.  He told the applicant that it would be too risky and the applicant said that he understood.

28.  In September 2006, the applicant had moved to a new office in Kowloon Bay.  He met Paul Chan near there on 21 September 2006 and told Paul Chan (a day before he learnt that ICAC was conducting an investigation) that there was no engagement letter to accompany Exhibit P3.  The applicant suggested that this could be explained by saying that Exhibit P3 had been issued for Unihub’s Hong Kong GAAP audit (2003) and internal review but the fee had been settled by PCCW (rather than by Unihub) to avoid Unihub’s management finding out that PCCW was checking on Unihub.

Defence case

29.  The applicant gave evidence at trial.  He explained that, amongst other things, his duties included the responsibility for ensuring SOX compliance.  This had particular relevance to the Mainland company, Unihub, which had been taken over by PCCW in 2002, as he was aware that it was being run by the son of the prime minister of the People’s Republic of China and that the company’s turnover had increased by nearly four times, to about RMB 100 million.  This caused him, he said, to be on the alert and he felt that an internal control review of Unihub was needed to ensure that the accounts were a true reflection of their records.  The applicant went on to say that this had to be done in a way that would not be found out by the management.  With this in mind, he called upon Paul Chan to conduct a China GAAP audit, a Hong Kong GAAP audit and an internal review of Unihub but, first of all, Paul Chan would have to bid successfully for the 2003 audit to be carried out by Baker Tilly.  He informed Paul Chan that the Mainland auditor in 2002 had charged a fee of about RMB 95,000 so he asked him to quote more or less the same.  PCCW (not Unihub) would then pay for the Hong Kong GAAP audit which was agreed at about $300,000 but would additionally include a figure for Paul Chan’s internal audit control.  In the event, the applicant said, Paul Chan billed PCCW for 20 hours of his own time, at $4,000 an hour, which made a total of $380,000.  This exactly accords with the fee shown on Exhibit P3 (see: paragraph 16 above) which, added together with “disbursements”, came to $432,000.

30.  The applicant’s explanation for the absence of any letter of engagement was simply that Unihub should not be alerted to the fact that he was doing an internal audit and, accordingly, the wording on the Debit Note (Exhibit P3) was kept deliberately vague.  He accepted that there were no supporting documents for the internal review.  The payment of $432,000 to Baker Tilly was quickly processed, he said, at the request of Paul Chan.

31.  Mr Eugene Liu (DW1) from RSM Nelson Wheeler, a global accounting firm, was called on the applicant’s behalf to give expert evidence as an accountant.  He provided support for the applicant’s account that Unihub’s Hong Kong GAAP audit for the year 2003 would have cost in the region of $400,000 whilst the China GAAP audit would have cost about RMB 220,000 assuming that each team of auditors had worked separately.  He described the debit note issued to Unihub (Exhibit P50), which related to a fee of HK$100,000, as an “undercharge” and as being appropriate for the bill to Unihub in regard to the China GAAP audit alone.

32.  The prosecution expert, Mr Gidwani, commented on these findings by DW1 saying that the Engagement Letter (Exhibit P26), dated 5 March 2004, referred to Baker Tilly providing both Hong Kong and China GAAP audit services to Unihub and that the debit note (Exhibit P50), dated 30 April 2004, reflected full settlement for these services.  He was aware that in various draft papers in which the 2003 audit fees for Unihub were touched upon, a figure of “300,000” for accountancy services appeared from time to time but this was, he said, a “provisional sum” only.

Trial judge’s assessment

33.  It is not surprising that the judge found himself unable to believe Paul Chan’s evidence as a whole. However, the judge’s assessment that he was unable to believe Paul Chan “at all” was an obvious overstatement as some of that witness’s testimony was not in dispute and provided a degree of common ground into which the rest of the evidence was set.  Equally, the judge went on to find that “Radcliffe [D3] had some truth to tell while D1 [the applicant] has none”.  Again, this was an unfortunate expression of opinion when some of the applicant’s testimony was not in dispute.  We can accept, however, that, on material aspects of the evidence touching upon the false representations alleged to have been made and the reasons behind them, the judge was entitled to have formed the view that neither the applicant nor Paul Chan was to be regarded as witnesses of truth.  On the crucial issue, concerning the true purpose of Exhibit P3, the judge said:

“210.  I find D1’s explanation of P3 a big lie. The Engagement Letter [P26] clearly referred to HK GAAP audit as well as China GAAP audit. This letter was issued by [Baker Tilly] in March 2004 (ten months before the issuance of P3 in January 2005) to Unihub. This rejects D1's statement that Unihub were not to know Hong Kong auditors had checked on them. The engagement letters for the 2004 and 2005 audits [D1(17)-(18)] also ordered dual audits. Those letters were again issued to Unihub. The bills to Unihub [P50-52].”

Grounds of appeal

34.  Eight grounds of appeal were advanced on the applicant’s behalf by Mr Graham Harris which, in combination, he submitted, rendered the applicant’s conviction unsafe or unsatisfactory.  In saying this, he candidly conceded that the evidence in the case gave rise to what he called “a very high degree of suspicion” and “a prima facie case certainly”.  Whilst the grounds were lengthy, we can take them relatively shortly.

35.  In grounds 1 to 3, it was contended that the prosecution was effectively doomed to failure against the applicant because, once the judge had seemingly rejected the evidence of Paul Chan in its entirety, there was insufficient evidence remaining on which to convict.

36.  The basis of the judge’s conclusion that the conspiracy in the 2^nd charge was proved was that he was sure that Paul Chan and the applicant had agreed to perpetrate the dishonest acts set out in the particulars knowing that what they were doing amounted to “a cheat on PCCW”.  A simple rehearsal of some of the basic evidence is revealing and it was rehearsed by the judge in some detail. 

37.  Diana Hsieh was the applicant’s mistress.  There were two children from their relationship and the applicantwas plainly keen that she should remain in Hong Kong although the applicantdescribed their relationship as being “no longer intimate”.  The applicant spoke to Paul Chan to find out whether Diana Hsieh could be employed by Baker Tilly and it was an agreed fact in the case that the applicant provided the funds to pay her salary for the last six months of 2004.  Similarly, the amount shown on the Debit Note, Exhibit P3, exactly mirrored the amount paid to Diana Hsieh by way of salary for the whole of 2005.  The money paid to her by Baker Tilly was demonstrated to the judge’s satisfaction to have come from PCCW.  Furthermore, no one at Baker Tilly had any idea what work Diana Hsieh was doing and no evidence was adduced to show that she had brought in any business to the company.  She did not even have a desk.  We should add, in this regard, that Diana Hsieh did not testify in her own defence at trial and no witnesses were called on her behalf.

38.  It was significant that such business as there was between PCCW and Baker Tilly was negotiated between the applicant and Paul Chan, respectively, as illustrated in Baker Tilly’s Letter of Engagement (Exhibit P26) prepared for the directors of Unihub.  The relevant debit note (Exhibit P50), applicable to this work was dated 30 April 2004 and was duly settled whereas the Debit Note (Exhibit P3), which was dated 13 January 2005, came into existence very soon after Diana Hsieh’s last salary payment in December 2004 which the applicant had funded himself. 

39.  Additionally, Exhibit P3, when compared to other debit notes, contained none of the detail usually given regarding the work actually done or of the nature of the $52,000 worth “disbursements” to be added to the fee of $380,000.  Equally importantly, no written audit report or working papers have ever been located which could provide any support for the work said to have been carried out in Exhibit P3.  Yet it was the applicant who had asked Benson Chu to formulate the wording on the Debit Note (Exhibit P3) and it was the applicant who handed the draft to Radcliffe for it to be typed.

40.  Finally, it was the applicant himself who authorised the payment of $432,000.  He did so by signing the Request for Payment (Exhibit P14) showing that he had “approved” this sum for payment to Baker Tilly. 

41.  There was an abundance of evidence from which the judge was entitled to conclude that the applicant and Paul Chan had conspired to defraud PCCW in the terms set out in the 2^nd charge.  The fact that the judge found Diana Hsieh or Radcliffe not to have been parties to the conspiracy made no difference to the validity of the applicant’s conviction.

42.  In grounds 4 and 5, it was submitted that the exhibits produced in evidence, including those produced by the defence, coupled with the evidence given by the defence expert (DW1) who the judge had accepted as an “honest” witness, raised a doubt as to the falsity of Exhibit P3.

43.  The fallacy in Mr Harris’ argument was to some extent well-illustrated by Mr Alex Lee for the respondent when Mr Lee, in his written submission, pointed out that the documents relied upon by the applicant at trial failed to support his case.  The applicant’s evidence was that Unihub would only pay for the China audit ($100,000) whereas PCCW would pay for the Hong Kong GAAP audit (about $300,000).  Yet the Engagement Letter (Exhibit P26) and the debit notes issued and addressed to Unihub for the years 2003 to 2005 (Exhibits P50, P51 and P52) consistently showed that the audit fee, for the Hong Kong and the China audits, was only $100,000.  Furthermore, there were no supporting documents such as time sheets or work records to support the fee of $380,000 or the “disbursements” of $52,000, totalling $432,000, as stated in Exhibit P3.

44.  A point which was also taken at trial by the defence was that a figure of “300,000” appeared in Unihub’s reports and papers.  This was dealt with by the judge in the following terms:

“213.  Mr. Macrae also emphasizes the significance of the ‘300,000’ figure, which appears in Unihub’s reports and papers. However, all point to the fact that it was a provision only. It was stated to be for audit expenditure but there is no evidence on its specific purpose or its ultimate going. After all, it was a provision by Unihub and not by PCCW so it does not fit into D1’s version.

The same figure also appears on another New Client Checklist (SOX) relating to PCCW [D3(9)]. Elaine says this document was prepared by Andy Ross’s secretary in September 2005. Nobody explains how the figure came onto that document and what it actually meant. I attach no weight to it.”

The reference in this passage to the provision of $300,000 not fitting into the applicant’s version, was another way of saying that it did not fit with the low-key approach the applicant had spoken about in relation to PCCW’s review of Unihub’s accounts which Unihub were not supposed to know about or to be paying for.  Furthermore, the Letter of Engagement (Exhibit P26) stated in terms that “the total fees for the services described above are HKD 100,000 …”.  [Emphasis added]

45.  The judge gave careful consideration to DW1’s evidence concerning the low level of fees which Baker Tilly were apparently charging but, while accepting DW1’s integrity, the judge preferred the opinion of Mr Gidwani, supported as it was by documentary evidence, that the Debit Note, Exhibit P3, did not relate to Unihub’s Hong Kong GAAP audit (2003).

46.  The 6^th ground amounted to a complaint that, in paragraph 216 of his Reasons for Verdict, the judge: “had relied solely on the documentary evidence.  He erred in so doing having rejected entirely the evidence of [Paul Chan] and the applicant who were the authors of the relevant documents”.  However, paragraph 216 makes good sense and all that we need to do is to repeat it.  The judge said:

“216.  Professional accountants, of course, would not do anything for free. If Unihub’s HK GAAP audit (2003) should really cost HK$400,000, [Baker Tilly] would no doubt issue other bills to ask for further payment. D1 [the applicant] says P3 was such a bill but it was purposely masked with some vague description due to the sensitive issue. I do not believe him. The engagement letters for the 2003-5 audits [P26, D1(17)-(18)] and the corresponding bills [P50-52] speak for themselves. Unihub had been well aware of the HK GAAP audit check and it had paid the agreed fee of HK$100,000 each time as the ‘total fees for the services described’ [para. 20 of each engagement letter]”.

47.  The judge continued by saying:

“217.  The Engagement Letter [P26] is unequivocal. There was no amendment to it. I find as I am sure that was the only and final agreement between Unihub and [Baker Tilly] on any 2003 audit - for both HK GAAP and China GAAP. There was no separate agreement between PC [Paul Chan] and D1 on behalf of [Baker Tilly] and PCCW respectively. I find as I am sure there were no extra fees required under P26 apart from those charged on P50. I am also sure the sensitive issue claimed by Dl was never true.

218.  P3 was masked by false description of work and all the figures on it were bogus. I am sure D1 was well aware of [its] falsity. He asked his assistant Benson to liaise with [Baker Tilly] on the issuance of P3. D3 and Benson might be ignorant of its bogus nature. PC and D1 were the masterminds. They were fully aware that P3 was not for the accounting services stated on the debit note. They clearly knew there was nothing further to be charged on Unihub’s HK GAAP audit (2003) …”

48.  In ground 7, it was submitted that the “scope of professional [accounting] fees charged fell outside the ambit of expertise of Mr Gidwani”.

49.  There was no substance whatever to this ground.  There was, as Mr Lee rightly pointed out, nothing controversial in Mr Gidwani’s evidence to the effect that the fee would depend on how much work had been done.  By contrast, the defence case merely asserted that accountancy fees amounting to $432,000 had been incurred without a single document to support the figure shown in Exhibit P3.  It followed, therefore, that DW1, giving expert evidence for the defence, was relying on a hypothetical situation when he stated that the $432,000 referred to in Exhibit P3 was not an unreasonable figure for Baker Tilly to charge PCCW for conducting the Hong Kong GAAP audit ($380,000) and an internal review of Unihub ($52,000).  Referring to DW1 by his first name, the judge stated:

“215.  Eugene’s opinion of the HK$400,000 costs is based on work done separately by auditors of the two places. As Mr. Gidwani says, how much Hong Kong auditors would charge depends on the extent of their reliance on their China counterparts. There is no evidence of the overlapping/segregation of work by [Baker Tilly] and Tin Wha while performing Unihub’s HK GAAP audit and China GAAP audit respectively for the year of 2003. Thus, Eugene’s estimation has no useful application.”

50.  The 8^th and final ground of appeal was, to an extent, a repeat of part of the argument under grounds 4 and 5.  Mr Harris submitted that, at paragraph 213 in the Reasons for Verdict, the judge “erred in drawing an inference adverse to the applicant in the context of ‘provision’ without any sufficient consideration of the meaning given to this term by professional accountants”.

51.  We have already cited the relevant passage from the paragraph which is criticised in this ground (at paragraph 44 above).  The “provision” referred to the “300,000” figure shown in Unihub’s reports and papers.  The particular criticism that Mr Harris made was that the judge’s conclusion failed to have regard to the evidence of Ms Cynthia Lo (PW6) who had testified, as an accountant employed by Baker Tilly, that she had not been able to find any records relating to Exhibit P3 after Radcliffe had asked her to check an entry on the document.  During cross-examination, she had gone on to deal with certain technical aspects relating to what, in accountancy circles, was meant by the term “provision”.

52.  This evidence was, with respect, a red herring.  The document (D1(4)), a draft prepared by Baker Tilly of Unihub’s audited financial statements for 2003, in which the provision for “300,000” is shown at page 8 for “auditors’ remuneration”, was not something she had prepared.  In any event, the main issue at trial, so far as the applicant’s case was concerned, was that the Hong Kong GAAP audit was the responsibility of PCCW, not Unihub, and that the sum of $432,000 was in fact owed by PCCW for auditing fees and disbursements to Baker Tilly.  There was nothing to indicate that Unihub had ever paid $300,000 for accountancy services and, even if they had, this would not have contradicted the defence case that Unihub had to be kept in the dark about the internal control review of their accounts for which reason this purported review was an expense that PCCW, rather than Unihub, had agreed to bear.

Conclusion

53.  The case against the applicant was overwhelming.  As none of the grounds, in our view, affected the safety of the conviction, we dismissed the application.