HKSAR v. AU YEUNG CHI HO, FRANKY

DCCC 784/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 784 OF 2008

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REASONS FOR SENTENCE

1.  The defendant stands convicted after trial of one charge of conspiracy to defraud, contrary to Common Law (charge 1) and           one charge of fraud, contrary to section 16A of the Theft Ordinance, Chapter 210 (charge 3).

2.  Full particulars of the offences are set out in my reasons for verdict delivered on the 24th June.  In summary in 2003 the Highways Department awarded Gammon Construction Ltd (“Gammon”) a design and build contract for the improvement of the Castle Peak Road, including the construction of an 800 metre long dual lane viaduct        (“the viaduct), connecting Tai Lam Kok and Siu Lam.  Ove Arup & Partners (“Ove Arup”) were the project consultants appointed by the Highways Department to oversee the project.

3.  In September 2005 Gammon sub-contracted to Alga (Far East) Limited (“Alga”) the supply and installation of prestressing tendons for the viaduct.  The sub-contract was governed by a Method Statement for Post-tensioning Works (exhibit P5).  After installation of the tendons to support the loading of the viaduct the decks of the viaduct were strengthened by stressing the prestressing tendons.  This involved the measuring of the tendons during the stressing process to see whether the tendons were stressed in accordance with paragraph 5.12 of the Method Statement (see paragraphs 25-30 of the verdict).

4.  The defendant was a Senior Project Manager employed by Alga and was the engineer in charge of the post-tensioning works, including the stressing of tendons.  The defendant provided his workers LI May-tak and TSOI Kuk-yau with figures to call out instead of the actual measurements, so as to give the appearance the tendons had been stressed in accordance with the specifications in the Method Statement, thereby ensuring no remedial works were required and therefore no delay in the work.

5.  In passing sentence I have taken into account everything said by     Mr Marray on behalf of the defendant together with the letters submitted to the court and the content of the background report.  The defendant’s parents worked hard to send their son to Australia where he graduated in civil engineering in 2001. The defendant since returning to Hong Kong has worked hard, his former employer speaking highly of his work. 

6.  I bear in mind there is no allegation that defective material was used and therefore the defendant arranged for false readings to cover up such defects.  By providing figures to his workers the defendant was nonetheless acting recklessly with regard to the safety of the viaduct.  This deprived Gammon and Ove Arup of giving proper consideration as to whether the deviation was within the specifications and if not, whether remedial works were required. 

7.  Prior to the viaduct being opened to the public in April 2007 tests were conducted to ensure the viaduct was safe.  Fortunately the viaduct was found to be safe.  One must not however overlook that the tests were conducted by the Highways Department in response to the report of falsified stressing records being used and came at a cost of over              $3 million (see the witness statement, exhibit P22, of Stephen Chau, engineer with the Highways Department). 

8.  In determining sentence I take into account the defendant was hitherto a person of good character and that he had no prior experience of post-tensioning work.  I accept the defendant did not act out of personal financial gain and that his actions were more a matter of convenience to ensure that the tendons had been stressed in accordance with the project specifications in the Method Statement.  This ensured no remedial works were required thereby avoiding delay, for which Alga would have been liable to pay penalty (see paragraph 220 of the verdict).

9.  The fact remains however the defendant was the engineer in charge who disregarded the requirements of safety, not just on a single isolated occasion but over a period of about one year between August 2005 and August 2006.  In my view conduct of this type cannot be condoned.  As was said in HKSAR v CHOW Che-wai CACC 545/2001 the integrity of the building industry in Hong Kong is truly important.  Taking into account the defendant’s good character and all the circumstances of the case I am satisfied the proper sentence after trial is 14 months imprisonment on charge 1 and 12 months imprisonment on charge 3.

Delay

10.  The offences were committed between August 2005 and August 2006.  The defendant was arrested and interviewed by the ICAC in February 2007 and charged and brought to court in September 2008, over eighteen months later.  Mr Mitchell has submitted a helpful handwritten chronology of the events post the arrest of the defendant.

11.  In mitigation I am told due to the pressure of the case the defendant resigned from his position with Alga in August 2008 and took up menial work as a telephone operator earning only $40 per hour.  Clearly the proceedings haven taken their toll on the defendant and his family.  

12.  Whilst I accept the prosecution are not at fault due to the complexity of the investigation this delay equally cannot be said to be attributable to the defendant.  I am satisfied that some credit should be given on account of delay (see HKSAR v WONG Ka-wahCACC 260/2006).  I do this by reducing the sentence on each charge by 2 months.

13.  Notwithstanding the defendant provided two different workers with false figures I am satisfied concurrent sentences are appropriate, both offences being related to the same post-tensioning work. The defendant is sentenced to 12 months imprisonment on charge 1 and 10 months imprisonment on charge 3, the sentences to be served concurrently.  I am satisfied there are no exceptional circumstances warranting suspension of the sentence.  The defendant goes to prison for 12 months.