HKSAR v. TANG CHI MING, THOMAS AND ANOTHER

HCMA249/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 249 OF 2007

(ON APPEAL FROM KTCC 4046 OF 2006)

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J U D G M E N T

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1.     The appellants were convicted after their joint trial before Deputy Magistrate Wan of six offences of false accounting so far as the 1^st appellant was concerned being (Charges 1 to 6), and of one offence of false accounting so far as the 2^nd appellant was concerned (being Charge 7); all offences being charged contrary to section 19(1)(b) of the Theft Ordinance, Cap. 210 (“the Ordinance”). 

2.     The 1^st appellant was sentenced to 9 months’ imprisonment in respect of each offence, all sentences to be served concurrently, resulting in a totality of sentence of 9 months’ imprisonment.  

3.     The 2^nd appellant was sentenced to 3 months’ imprisonment.  

4. Both appellants now appeal their convictions and sentences. 

Prosecution case

5.     The prosecution case was that the 1^st appellant was an ex-district councillor and the secretary of the Ping Tin Residents Association (“PTRA”) and the chairman of Friends of the Youth (“FOTY”), both non-profit charitable organisations which organised recreational activities for residents of Kwun Tong District.  The 2^nd appellant was a Kwun Tong District Councillor whose office address was shared by another non-profit charitable organisation, the Shun Lee Community Development Association (“SLCDA”), though the 2^nd appellant held no office in that association.  

6.     The 1^st appellant was also a director of two firms, K&T Workshop and K&T Company (which I will jointly refer to as “K&T”).  The other directors were mainly his family members.  K&T was in the business of organising local events such as carnivals and fairs for community associations such as PTRA, FOTY and SLCDA.  The 2^nd appellant was a friend or associate of Tam Yiu Wang (PW5) who was the chairman of SLCDA. 

7.     The three community associations organised events in the nature of carnivals or fairs during the period from about late 2001 to early 2003.  Six such events were organised on behalf of the organisations of which the 1^st appellant was an office bearer, namely PTRA and FOTY.  One event was organised on behalf of SLCDA.  With one exception the company which was appointed by the community association to organise those events was K&T.  The exception was that one event was orgainsed by a company Tech Production Co.  That event underlay the 6^th Charge.  Tech Production Co. was a company which, if it existed, had done so with no record of its identity being retained at the Business Registration Office of the Inland Revenue Department. 

8.     Each of PTRA, FOTY and SLCDA were eligible to apply to the Kwun Tong District Council for subsidies in respect of the events they organised. 

9.     An application, if approved, would allow them to receive part of the subsidy in advance and the balance after the event.  Before the final portion of the subsidy was paid however the applying organisation had to provide various documentation supporting a completed “Application for Reimbursement” form.  Those supporting documents, apart from invoices, receipts etc. proving actual expenses, were required to include quotations from companies such as K&T which had tendered for the contract to organise the event.  A minimum of five such quotations was normally required in respect of any one event and the relevant community association was expected to grant the contract for the organising of the event to the company which provided the lowest tender. 

10.     In respect of each of the seven events which underlay each of the charges quotations were provided on each occasion.  On each occasion all of those quotations except that provided by K&T and possibly in respect of the 6th charged of offence that provided by Tech Production Co. were wholly false.  The lowest bidder on each of those occasions, with the exception of the occasion underlying the 6^th charged offence, was K&T. 

11.     The falsity of the quotations was established by the particular company purporting to provide the quotation either having ceased business prior to the quotation being received, or the proprietor of the company disclaiming any knowledge of the quotation.  Telephone numbers and addresses stated as the company’s on the quotations were falsified and had never been those of the company.  Even more cogently, in respect of the offences faced by the 1^st appellant during the ICAC investigation of the case, various computer discs were seized from the shared office of PTRA and FOTY which were found to contain files of forged quotations.  One disc was labelled “simulated company quotations”.  Additionally a book of receipts relating to a company whose name was used in respect of some of the forged quotations was also found.  The office where these items were located was used by the 1^st appellant in his capacity as chairman of FOTY and secretary of PTRA.  

12.     The prosecution case was that the 1^st appellant had knowingly submitted the bogus quotations with each of the applications for reimbursement the subject of Charges 1 to 6, and that the 2^nd appellant had knowingly done so with the application the subject of the 7^th charged offence.  It was not in issue at trial that each appellant had submitted those applications for reimbursement.  What was in issue was simply whether the particular appellant knew that the quotations he provided to the Kwun Tong District Council when he submitted the applications for reimbursement were largely bogus. 

13.     Neither applicant gave evidence at trial. 

Grounds of appeal against conviction

14.     The grounds of appeal against conviction are similar for each appellant and can shortly and jointly be stated as follows :

(1)	that there was insufficient evidence to allow the magistrate to properly find that either appellant was aware the quotations were false;
(2)	there was insufficient evidence to allow the magistrate to conclude the quotations were required for an accounting purpose pursuant to section 19(1)(b) of the Ordinance; and
(3)	alternatively (for the 1st appellant) the magistrate failed to give adequate reasons why he found the quotations to have been required for an accounting purpose.

I will deal with the grounds out of their numerical order.  

Documents required for an accounting purpose

15.     The prosecution did not present its case on the basis that the false quotations were by their nature accounting documents but simply that they were required by the Kwun Tong District Council for an accounting purpose. 

16.     Mr Lee SC for the 2^nd appellant argued (and his arguments were adopted in their entirety by Mr Dykes for the 1^st appellant) that the quotations required to be provided to Kwun Tong District Council were not shown on the evidence to have been used by the council or required by the council for any accounting purpose but may have been required simply to allow the Council and later the District Office through which payments were processed as a matter of common sense to reassure themselves that the community association the council was dealing with was indeed properly seeking tenders for the particular event and acting economically in giving the contract for the event to the lowest, or at least a low bidder.  Mr Lee’s point was that quotations of this sort, particularly unsuccessful ones which the charged false quotations obviously were, could not have been required for any real accounting purpose but were required simply perhaps to allow the Kwun Tong District Council staff and the District Office staff to be sure the community organisation had carried out a proper tendering process. 

17.     His ancillary point was that in that regard there was simply insufficient evidence before the magistrate as to what the false quotations were required for, so as to allow him properly to arrive at any conclusion in that regard.  He called in aid the cases of R. v. Gurmit Sundhers [1998] Crim. L.R. 497 and R. v. Okanta [1997] Crim. L.R. 451.  

18.     In Okanta it was held that documents which were submitted to a building society supporting an application for a loan, so far as they merely stated the applicant’s income to be at a certain level and that her employment was stable, could not be assumed to be documents required for an accounting purpose.  Potter LJ in giving the judgement of the Court of Appeal said :

“	Mr. Barr has argued that it may similarly be assumed in this case that the Society required the information for an accounting purpose in that it was not simply required for the purpose of deciding whether to make the loan or not, but would inevitably have been used internally by the Society for the purpose of compiling its internal accounting records or, at the very least, by the Society’s auditors in preparing and/or checking the accounts.
	We do not accept that submission.
	The evidence called from the Society in this case was, of course, directed simply towards the reliance placed by the Society on the appellant’s letter when deciding whether to make the advance in fact made.  In relation to a criminal charge of this kind, we do not feel justified in making any assumption beyond the scope of the evidence called.  If there were room for the making of any such assumption, we would be inclined to assume (in the absence of evidence on the topic) that, whereas a Building Society relies upon a ‘reference’ or confirmatory letter of the kind signed by the appellant for the purpose of deciding whether to make a loan (which we do not think amounts in itself to an accounting purpose), the calculation of the instalments for repayment or the rates of interest to be charged are based simply on customary or ‘tariff’ rates of the Society which have regard to the particular period and type of advance made.”  [Emphasis added]

19.     It is clear that the judgment was primarily concerned with the lack of evidence before the court of trial regarding the use to be made of the charged documents.  The court was satisfied that if the letter sent on behalf of the appellant were merely confirmatory of her remuneration and terms of employment, then without more, that could not be said to amount to an accounting purpose. 

20.     Okanta was subsequently reinforced by the judgment in Sundhers.  In that case the appellant had provided claim forms to insurers containing misrepresentations.  No evidence was called as to how the insurers would deal with those claim forms or what use would be made of them.  On appeal it was argued that the insurers auditors or accountants might well wish to scrutinise the claim forms for the purpose of verifying the accuracy of the insurers accounts.  Buxton LJ in delivering the judgment of the court said of that argument :

“

That was a sensible and robust submission which in common sense terms has a great deal to commend it.  It also, in our judgment, represents what we believe — again without evidence but on the basis of experience — is in fact the case.  It would be, it seems to us, almost certain that such records would be retained, one of the reasons for retaining them being to enable the books to be properly audited.  The difficulty however is this.  The question that the jury had to answer was, as is conceded, a question of fact, otherwise it would not be going to the jury at all.  There was no actual evidence before the jury to demonstrate to them that that is what in fact is done with claim forms.  We have to say that that is a matter that was put before them by the learned Recorder, and perhaps in one way understandably so.  But it was not a matter that was based upon evidence, either evidence given by the representatives of the company concerned, who said no more than that the claim forms would be retained without stating for what purpose, nor of course was it the subject of any form of expert evidence.  That means, therefore, that if the jury were to form a conclusion simply on the face of the claim form and of its nature, they could only form such a conclusion without specific evidence by drawing, as a jury often has to, on its general knowledge and experience of the world.

That is something that juries can usefully do when they are dealing with matters that do fall and can be assumed to fall within the general experience of the members of the jury.  But we regret to say that that assumption cannot be made in respect of a matter such as accounting practice.”

He then went on to say :

“

For fear that it might be thought that the judgment of this court creates insuperable difficulties in the way of prosecutions in cases of this type under section 17, we will go so far as to say that really very little evidence, or certainly very little unchallenged evidence, as to the modus operandi of the company and as to the use of the claim forms once they had been submitted would no doubt have been sufficient to cure this point …”

21.     I agree with Mr Lee to this extent; if no evidence had been before the magistrate at trial as to the purpose or usage of the quotations submitted with the application for reimbursement, then there would have been no sufficient evidence to conclude the quotations were required for an accounting purpose.  Quotations do not fall into the category of documents such as invoices, receipts, ledgers and journals which are capable of speaking for themselves as being either made or required for an accounting purpose and which therefore require little or no evidence to establish that fact : see HKSAR v. Wong Chung Yuen [2003] 2 HKC 695.  Rather they are in the category of document which depending on its usage by the recipient may or may not be required for such a purpose.  Further I bear in mind the observation by Auld LJ in Baxter v. Governor of H.M. Prison Brixton [2002] EWHC 300 :  

“

There is no statutory definition of the term ‘document made or required for any accounting purpose’; nor, as Mr. Hardy submits, do the authorities indicate any exhaustive or all-purpose restrictive interpretation of it.  It is not a technical term and should clearly be given its ordinary and natural meaning, according to the nature and contents of the document, the circumstances giving rise to its creation and/or the potential purpose for which it may be required.”

and later :

“	In the end, the question whether a document is made or required for an accounting purpose is a mixed question of law and fact and will be significantly coloured by the surrounding circumstances. …”

22.     Importantly for this appeal there was no issue raised at trial that the quotations were required for an accounting purpose, it seems to have been accepted by defence counsel that they were.  But nevertheless there was evidence before the magistrate as to the use to be made of the documents. 

23.     Firstly, the admitted facts contained the following agreed facts : 

“	Documents Required for an Accounting Purpose
	15.	It is a requirement of the Kwun Tong District Council and the Home Affairs Department that every application for Council funds should show evidence of a tendering exercise, and that applicants for funds should include with their application for reimbursement copies of the quotations they have obtained during this exercise.  If this evidence is not provided, or if no explanation for its absence is provided, then funds will not be released. …
	16.	After the whole activity has been completed, and the subsidy paid, the application documents, including the quotations, are retained by the District Office and are subject to being checked by the auditors. …”

24.     Secondly it seems clear from the evidence of Tong Lok Ki (PW2), an executive officer of the Kwun Tong District Council at the relevant time, that the quotations provided with the applications for reimbursement were required to satisfy her staff, before a memo authorising reimbursement to the community association was issued, that the quotation accepted was reasonable compared to the market price and that the amount claimed for reimbursement was correct. 

25.     Thirdly, Wu Lai Shan (PW4), the district secretary of the Kwun Tong District Office said :

“	Q:	When you receive the papers for you to consider whether or not payment should be made, do you receive the quotations and the list of quotations along with the application for reimbursement?
	A:	Yes.
		…
	Q:	And when you receive this application with all these papers, how much — let me rephrase that.  What do your staff check?  What do they look for?
	A:	Our colleagues would, first of all, check whether all the papers were there, and then they would check the records of quotation to see if any colleague had checked the quotations, and then they would look at the information filled in by the organisation on the application form to see if they were correct and also to check whether the reimbursement they are applying for were the subsidies granted by us to them.
	Q:	When you’re considering this matter of reimbursement, when you’re considering whether to authorise it, how important are the quotations that are included with the application?
	A:	If the organisation does not submit the quotations or the record of quotations, then we cannot release the reimbursement to them.”

and later :

“	Q:	And we know that these documents are then kept on file after the payment.  Can you tell me are these documents subject to audit?
	A:	We would keep them in the file or in case in the future any auditing procedure is required by the audit department, then those papers would be ready for their auditing.”

26.     Fourthly, the standing circular issued by the Home Affairs Department relating to the accounting procedures to be adopted in respect of the disbursement of District Council Funds requires that :

“

15.

In vetting or approving an application for reimbursement, District Office staff should assess whether the prices quoted and accepted are reasonable compared to market prices, and certify to this effect in the standard format at Appendices D and D1 to D7, as appropriate, though the District Council Funds Accounting System (DCFAS).  In case of doubt, District Office staff should counter-check the quotations recorded, or consult their supervisor or the Supplies Officer at HAD HQ. …”

27.     From all this it is clear that before the final reimbursement is made to the relevant community association the quotations obtained by it, in respect of the particular event for which it is making its application, are assessed by both the Kwun Tong District Council and, subsequently by the District Office, for the purpose of assessing whether the costs charged by the contracted event organiser are in line with market prices.  If so then payment is made. 

28.     In my judgment that is sufficient for the documents to qualify as being required for an accounting purpose.  That is because it is quite obvious that not only does the fact of reimbursement require an assessment of the reasonableness of the prices or amounts as set out on the various quotations by a comparison of the prices in them with market prices but also those quotations (together with the other documents submitted as part of the applications) were to be kept for possible future auditing purposes.  It seems to me that auditing purposes must sensibly be regard as an accounting purpose, particularly when financial amounts in them are to be compared with each other so as to determine whether a fair market price has been paid. 

29.     I might add that the quotations were not simply in the form of round “ball pack” figures but provided a detailed breakdown of the estimated cost of individual items to be obtained for the particular event. 

30.     Mr Lee argued that the auditing purpose referred to in the admitted facts and by PW4 may simply have been to check whether the proper procedures were adopted by the local council, and that it was possible a merely “administrative audit” was intended to be carried out rather than an accounting audit.  But there was nothing in the evidence to suggest that was so, no witness was examined on this basis and that suggestion in my view amounts to little more than somewhat out of time speculation.  As I say it was apparently accepted by defence counsel at trial that the quotations were required for an accounting purpose.  This ground must fail. 

Magistrate’s failure to give reasons

31.     The 1^st appellant’s additional complaint that the magistrate failed to give adequate reasons as to why he found the quotations to be required for an accounting purpose can be answered in a similar vein.  There was simply no live issue as to this matter at trial.  By the admitted facts set out above it was agreed the quotations were required both for reimbursement and were subject to audit.  Those facts were agreed under the heading “Documents Required for an Accounting Purpose” and the magistrate no doubt felt under no compulsion to give any further reasons for finding the quotations to be part of the documents provided for the accounting purposes of the Kwun Tong District Council and the District Office.  That no doubt was because in his mind there has simply been no issue raised about this.  In my view and for the reasons I have already stated this being a rehearing those documents however were documents required for an accounting purpose and this ground equally has no merit. 

The insufficiency of evidence establishing each appellant knew quotations submitted were false

The 1^st appellant

32.     Mr Dykes submitted correctly that in the absence of any admission made by the 1^st appellant in his interview with the police as to his knowledge of the falsity of the quotations, the prosecution case was entirely circumstantial as to the 1^st appellant’s knowledge of the falsity of the quotations. 

33.     It is necessary then to assess that circumstantial evidence and that can best be done by setting out the magistrate’s analysis of the case against the 1^st appellant :  

“	… Did D1 [the 1st appellant] know that the quotations submitted to KTDC were false?  There was no direct evidence from the Prosecution to prove D1’s knowledge, so the Court has to first identify the circumstantial evidence that could prove D1’s knowledge and then decide whether D1’s knowledge was the only and irresistible inference to be drawn from such evidence.
	It is not disputed that false quotations were submitted for the applications for subsidy in relation to charges 1 to 6.  The relevant companies never issued the false quotations involved in all charges.  There is no doubt that those quotations were forged by somebody and were later used to support all the relevant applications.
	In D1’s record of interview, D1 admitted that he was the person who ‘mainly’ and ‘mostly’ filled in the application forms for subsidy for PTRA and he was the person who called for quotations … He admitted that he was also the person who organized activities for FOTY and he was the person who called for quotations … He further admitted that he was the contact person of the activities organized by PTRA and FOTY and he was responsible for ‘coordinating everything’ …
	… he admitted that he was the person who completed all the application forms for subsidy in question either on behalf of PTRA or FOTY.  He also admitted that he was the person who prepared all the records of quotation in question.”

In this latter regard the magistrate was wrong as the 1^st appellant did not prepare the record of quotation (i.e. a list of the quotations) in respect of the 4^th charged offence.  But I do not think this matters.  I am satisfied his omission to prepare that document in respect of that particular charged offence weakens the case against him on that charge to no significant extent given the strength of the rest of the evidence. 

34.     The magistrate went on :

“	…According to the admitted facts … and various company documents … at all material times, D1 was either the partner of K&T Company or the secretary and director of K&T Workshop after its incorporation. The other partners or directors of the two companies were usually the family members of D1 …
	… the obvious question to be asked was who would be benefited if false quotations were used?  The obvious answer must be D1 and no one else.  By submitting false quotations, D1 could save a lot of trouble of going through proper tendering exercises and could also make sure his companies submitted the lowest quotation …
	D1 claimed that he contacted the relevant companies to obtain the quotations.  Then he would be the person to know where did those forged quotations come from.  If in fact none of the companies had issued any of those quotations, to whom did D1 contact to obtain those quotations? …
	Some floppy discs were seized in the office of PTRA/FOTY and they were found to contain files of some of the forged quotations.  Further, a blank book of receipts of B&W Company was found in the same office …”

It should be noted of course the 1^st appellant was the chairman of FOTY and the secretary of PTRA.  While it is true as Mr Dykes submitted that other persons may have had access to the computer discs on which those false records were found it is, as the magistrate properly regarded it, a further piece of evidence against the 1^st appellant.

35.     The magistrate’s reasons continued :

“

… D1 elected not to give evidence and that was his right.  No adverse inference would be drawn because he did not give evidence.  However, in the present case the overwhelming evidence does cry out for D1 to give explanation as to how did the false quotations come about.  He did not give any explanation in his record of interview.  Therefore, there was simply nothing at all from D1 to explain the source of those false quotations.  In the end, I find the only and irresistible inference to be drawn from the facts, as far as charges 1 to 5 are concerned, is that D1 knew those quotations were false…”

36.     I must say I entirely agree with the magistrate’s findings in that regard.  The magistrate then continued :

“

The facts concerning charge 6 were a bit different from other charges.  In the application relating to charge 6, it was not one of the K&T companies that submitted the lowest quotation and won the tender.  It was a company named TECH Production Co. … The only evidence from the Prosecution about this company came from the admitted facts where it was admitted that the Business Registration Office of the Inland Revenue Department has no record of any company by the same name.

… I find I was drawn to the only and irresistible inference that D1 knew the quotations in charge 6 were false.  The false quotations produced in this application came from two companies named Show Quali Entertainment and Ngai Tat Advertisement Production Company.  False quotations from these two companies were used in most of the applications involved in the other charges … As I find that D1 had knowledge about the false quotations of these two companies being used in the applications concerning the other charges, the only logical inference to be drawn would be that D1 knew that the two quotations from these two companies were false as the application concerning charge 6 was the last of the six applications in question.”

37.     In my judgment the magistrate’s approach to the evidence against the 1^st appellant so far as the 6^th charge is concerned was valid.  He was entitled to look at the evidence in the case as a whole in determining the 1^st appellant’s knowledge concerning the falsity of the quotations involved in that charge, and I agree with his conclusions in that regard.

38.     The magistrate then concluded :

“	… I found that the only and irresistible inference to be drawn was that D1 did have knowledge of all the false quotations produced in the six applications for subsidy in question …”

39.     That was a conclusion properly arrived at and one that was inevitable given the strength of the circumstantial evidence against the 1^st appellant.  There was no merit in this ground so far as the 1^st appellant was concerned. 

The 2^nd appellant

40.     The magistrate then went on to deal with the evidence concerning the 2^nd appellant. 

41.     In large part the case against the 2^nd appellant depended on the evidence of PW5, the chairman of the SLCDA at the time, the contents of the 2^nd appellant’s interview with the police and the unchallenged circumstances of him being responsible for organising the particular event the subject of the 7^th charged offence, and in doing so using his own staff.  

42.     PW5 had said in his evidence that before the time of the 7^th charged offence SLCDA was dormant and that it was the 2^nd appellant’s idea to use it to stage a mid autumn festival carnival.  He said that the 2^nd appellant had been responsible for preparing the documentation relating to the event including the application for reimbursement and had provided to him the false quotations for certification.  PW5 also signed on each quotation.  He said he did this because he trusted the 2^nd appellant and did not believe the 2^nd appellant would cheat him.  

43.     In his video recorded interview the 2^nd appellant agreed that his office had sought the quotations.  He used the word “we” in that regard but eventually agreed more specifically that PW6, a female assistant who was apparently the only staff he had who dealt with paperwork in any substantial sense and the only realistic alternative to himself to be the contact point with companies tendering for the event probably had not done so and that it “should” have been him who sought the quotations, though later in his interview he said sometimes his office would ask “friends” to provide quotations. 

44.     Bearing in mind that in order to provide a quotation a company would need to know what was planned for the event, an autumn festival carnival, it seems somewhat far-fetched to think the 2^nd appellant’s assistant would liaise with and provide information about the event to the tendering companies. 

45.     In any event the magistrate’s analysis was as follows :

“	To sum up the case against D2, the Prosecution’s evidence is this:
	(a)	Four false quotations were produced to support the application for subsidy in relation to charge 7;
	(b)	D2 was the person who filled in the application form and the record of quotation in question;
	(c)	D2 claimed that he had phoned some of the companies that the false quotations purportedly came from;
	(d)	D2 said he was the person who made almost all the arrangements to organize the activity in question;
	(e)	SLCDA had no staff and did not participate directly in organizing the activity in question;
	(f)	D2 had three part-time staff.  Only PW6 would assist D2 in organizing the activity in question.  D2 said it would not be PW6 who called to obtain the quotations.”

46.     Bearing in mind the magistrate was summarising the evidence before him I do not find his summary to be inaccurate as Mr Lee suggested it was though it is true that it did not (and could not) have included all the inconsistencies and vagaries in the 2^nd appellant’s recorded interview.  

47.     The magistrate then continued :

“

After careful consideration, I find that the one and irresistible inference to be drawn is that D2 knew full well the quotations in question were false.  The false quotations could not possibly be obtained from the relevant companies and must be coming from somewhere or someone else.  D2 was the person solely responsible for obtaining them, he would be the only person who knew where they really came from.  I cannot think of anyone else, except D2, who could have access to the false quotations in the whole application process.

Again, D2 elected not to give evidence and that was his right.  I draw no adverse inference from his election.  However, the case against D2 again cries out loud for D2 to give an explanation.  Without his explanation, I am of the view that there is no other reasonable inference to be drawn except the one I have already mentioned.”

48.     I agree with the magistrate’s conclusions.  Although the evidence so far as the 2^nd appellant is concerned is not so strong as that against the 1^st appellant it is nevertheless compelling.  

49.     It is true that there was no motive established for the 2^nd appellant to submit false quotations so as to ensure K&T again submitted the lowest tender in the event underlying the 7^th charged offence.  Though the 2^ndappellant knew the 1^st appellant and other directors of K&T and paid that firm in cash the magistrate was right in my view to proceed on the basis that there was no motive established against the 2^nd appellant.  But as the magistrate said proof of motive is only one of the factors involved in assessing whether a case has been proven. 

50.     Some of the false quotations used by the 2^nd appellant were the same as those found on the computer disk seized from the 1^st appellant’s office.  It seems wholly speculative to suggest as Mr Lee suggested that some person with access to that source of forged quotations would in some way present them to the 2^nd appellant (or even his assistant) knowing that the 2^nd appellant had not approached those companies.  That one of the friends the 2^nd appellant referred to in his video recorded interview could coincidentally have known the 1^st appellant and have agreed to provide such quotations to the 2^nd appellant (or his assistant) seems equally far-fetched. 

51.     I agree with the magistrate’s analysis of the evidence and his conclusion that it led irresistibly to a finding that the 2^nd appellant knew the quotations were false.  This ground must also fail. 

52.     I turn now to sentence.

Sentence

The 1^st appellant

53.     In respect to each offence the magistrate adopted a starting point of 12 months’ imprisonment and reduced it to 9 months on the basis of the 1^st appellant’s previous good character.  He ordered all sentences to be served concurrently arriving at a totality of 9 months’ imprisonment. 

54.     The 1^st appellant’s complaint regarding his 9-month sentence is simply that it is excessive. 

55.     The 1^st appellant faced six separate charges which alleged offences separated by, in most cases, several weeks or months.  

56.     As an initial observation the imposition of a sentence, in respect of a particular offence in a series of offences, should so far as possible be a sentence tailored to that offence.  A proper totality of sentence can then be achieved by ordering the sentences to be served partly concurrently.  I say “so far as possible” because on occasion, for example, where a very large number of offences are dealt with, each relatively minor, and forming a scheme or pattern of offending, such a course can be overly cumbersome and therefore impractical.  In such circumstances, a sentence representing the proper totality can be imposed for each offence and the sentences be ordered to be served wholly concurrently.  But by far the preferable course in the vast majority of cases is to tailor a sentence to the individual offence and then to order them to be served partly concurrently so as to achieve a proper totality.

57.     In my view that is what should have been done in this case, but I will not interfere with the sentences imposed or orders made by the magistrate as in my view the totality of sentence achieved was not excessive.

58.     The circumstances of the six offences reveal a pattern of offending of some sophistication.  Very convincing forged documents were provided to a governmental body by the 1^st appellant on various occasions over the course of about a year.  Some $100,000 odd was obtained as a result, though as I say there is noting to suggest the work relating to the payment of those monies was not done.  Nevertheless the tendering process by which such work should have been allocated was seriously compromised and the pattern of offending would no doubt have continued had it not been interrupted by the intervention of the authorities.

59.     Mr Dykes pointed to the 1^st appellant’s previous positive good character.  That point is somewhat diluted by the fact the offences did extend over a significant period of time.  The magistrate in any event gave considerable and in my view too much credit for this particular factor.

60.     In my judgment the sentence of nine months’ imprisonment imposed on the 1^st appellant cannot be said to be excessive.

The 2^nd appellant

61.     So far as the 2^nd appellant is concerned, Mr Lee argues that in lieu of the custodial sentence of three months’ imprisonment, a community services order or a suspended sentence should have been imposed.  He complains that in any event the sentence of three months’ imprisonment was excessive. 

62.     So far as the imposition of a community services order is concerned, as the magistrate pointed out in his reasons for sentence, the 2^nd appellant displayed no remorse at trial (and still does not do so) and therefore lacked an important though not necessarily determinative factor warranting an order of community service.  

63.     In my judgment, the magistrate was right in taking this factor into account in regarding a community services order as inappropriate and imposing a custodial sentence.    Nor can complaint be made of the fact the sentence was not suspended.  The 2^nd appellant was in a position whereby he was in a position of breach of trust.  He was a serving district councillor at the time he was providing the Kwun Tong District Council, and necessarily also the District Office, with forged documents.  He was subverting the system of local governance he had been elected to uphold.  There was no exceptional circumstance warranting the suspension of his sentence.  His previous good character could not, given the totality of the facts of the case, have amounted to such a circumstance.

64.     Nor do I think the sentence of three months’ imprisonment was excessive.  The offence was a premeditated breach of trust.  It involved the provision of forged commercial documents to a governmental body.  No complaint can be made of the nature or length of the sentence.

65.     For the above reasons, both appellants’ appeals against their convictions and sentences are dismissed.