HKSAR v. CHEUK WAI HUNG AND ANOTHER

CACC 511/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 511 OF 2004

(ON APPEAL FROM DCCC 104 of 2004)

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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):

1.  On 17 November 2004, the applicants (D1 and D3 respectively) were convicted (with D4) on a single charge of conspiracy to defraud, following a trial in the District Court before Deputy Judge Tallentire who sentenced each of them to 3 years’ imprisonment.  They now seek leave to appeal against conviction.

2.  The particulars of the offence, which was said to have occurred between 1 November 1999 and 4 April 2003, alleged that the applicants, D4, and two others (D2 and D5) who were acquitted, conspired together and with 7 others who were named and other persons unknown:

“… to defraud the Highways Department (HyD) of the Government of the Hong Kong Special Administrative Region by dishonestly falsely representing that the core samples submitted for testing to the Public Works Laboratory (Submitted Samples) were the actual core samples obtained from various road resurfacing sites of HyD, thereby deceiving the said HyD into accepting the Submitted Samples as genuine ones.”

3.  In an admirable summary of the prosecution’s case, setting out the essence of the allegation with clarity, the judge said:

“	3.	The Highways Department is responsible for road maintenance including road resurfacing, the process of which comprise the following: (a) cold milling of the road surface; (b) obtaining bulk samples of the bituminous materials used; (c) laying and compacting bituminous material on the road surface; (d) coring and delivery of resurface road samples to the government laboratory for testing.  A works Supervisor of the Highways Department is required to be present during the whole process.  The contractor must take bulk samples from the bituminous material under the supervision of the Works Supervisor.  The bulk samples are then marked and delivered by the Works Supervisor to the Public Works Laboratory.  The purpose is to test the aggregate grading and bitumen content.  The data is also used to determine the material specific gravity for subsequent calculation of the air void content of cores taken from the compacted material on site.  After the newly compacted bituminous material cools down and hardens, cores would be taken in order to measure the degree of compaction by calculating the air void content.
	4.	The Works Supervisor would select the locations for taking core samples and supervise their collection.  The sample is normally taken within 48 hours of the compaction, weather permitting.  Core samples are marked and kept and delivered to the lab by Highway Department staff.  Normally the bulk and core samples would be delivered to the lab at the same time.  Staff of the Highways Department or the Highways Department subcontractor fills in the relevant information in the documents and then signs.  If the core samples do not pass the test then additional cores have to be taken under the supervision of Highways Department staff.
	5.	The same process should be followed as for the original samples.  Should there be a second failure the contractor, however, has to resurface the road or negotiate a reduction of his fees in return for the substandard work.
	6.	Since 1999 Trinity (Asphalt Surfacing) Engineering Co., hereafter known as “Trinity”, has been a resurfacing subcontractor for the Highways Department throughout Hong Kong.  It was alleged that Trinity had taken core samples without supervision of the Highways Department staff and it stored them themselves.  Further, that they had substituted substandard samples by fabricated samples and then submitted them for testing.  The bogus samples had been fabricated at their site at Whitehead.  It was also alleged that they took cores from well-compacted sites to replace substandard ones.  Samples would be tested by Trinity prior to going to the lab.
	7.	It was alleged that D1, D2 and D3 were partners of Trinity while D4 and D5 were employees.  The allegation was that D1, D2 and D3 instructed D4, D5 and other staff to core samples from Whitehead and substitute these for substandard samples.  D5 was also alleged to be responsible for training staff to core at Whitehead and then measure samples to select those of the correct quality.
	8.	Under caution D1 and D3 admitted Trinity had cored samples at Whitehead but only for experiment and quality control …”(Appeal bundle pp. 14-16)

4.  There was, in the light of the judge’s findings given later, an abundance of evidence to support the fact that a conspiracy to defraud existed.  The judge had received evidence from at least 6 witnesses which combined to provide, as he expressed it, “unsophisticated but eloquent and persuasive evidence” of this.  He also found that the malpractices described by various witnesses were a “reality of the day-to-day operation of Trinity”.  In particular, cores were routinely being taken from road sites without the supervision of a Works Supervisor or taken with such supervision but then, instead of going to the Highways Department site office for storage, they were removed to Trinity’s Hung Hom depot, which was the coring section of Trinity.  There, the cores were weighed and tested.  If they failed they were discarded and bogus cores put in their place for transportation to the Public Works Laboratory.  The clear purpose of so doing was, the judge found, to defraud the Government through the Highways Department “by misleading it to the extent that substandard road resurfacing was passed as being up to standard to avoid any re-coring, resurfacing or reduction of fees”.

5.  D1 put forward a proposition which, to an extent was supported by D4, that the coring at Whitehead and weighing at the depot in Hung Hom was in furtherance of a company policy to test recently repaired machines.  The judge rejected this as “absurd and patently untrue”.  Summarising some of the testimony given by the witnesses, the judge described the evidence against D1 and D3, which was closely linked, as “overwhelming”.  The judge found that they knew about the coring and testing procedure at Trinity and the reasons for it.  In D1’s case, not only did he have “full knowledge of the conspiracy, he was orchestrating the details” and, in the case of D3, the judge described him as an “operational conspirator and intrinsically bound [up] in the web of the conspiracy”.

6.  Against a background of unusually clear and cogent evidence to support an allegation of conspiracy, we have been presented with 2 grounds of appeal by Mr Edwin Choy on the applicants’ behalf.

7.  In his 1^st ground, Mr Choy submitted that the judge: 

“erred in admitting and relying on the evidence that D1 forced PW5 to forge the signature of a Works Supervisor on a laboratory form in June 2002.  Such evidence went to prove a course of conduct outside the scope of the only charge D1 faced at the trial and was not relevant to any of the issues at trial.  Further, such evidence was highly prejudicial.”

8.  This is not a ground which we propose to dignify with a detailed response.  Mr Choy has not suggested that the evidence was the subject of any objection by the defence at trial, and we have not been informed that it was.  Had it been, the objection would have stood no chance of success.  To state the obvious, the evidence in question was directly relevant to the conspiracy charged.  As to whether this evidence was nevertheless inadmissible, Mr Choy cited HKSAR v Zabed Ali [2003] 6 HKCFAR 192 which deals with principles which have no applicability to the situation which has arisen in the case.

9.  In the 2^nd ground, Mr Choy’s submission was that when the judge turned to a consideration of D4’s case having, we observe, already convicted D1 and D3 in his Reasons for Verdict, he stated that with regard to D4’s interviews he was giving “full weight” to this “body of inculpatory evidence” but gave no direction to himself that these interviews were not admissible against D1 and D3.  This contention borders on the absurd and is in any event utterly misplaced.  There is not the slightest suggestion in the Reasons for Verdict that the judge misused D4’s admissions which were, as the judge obviously and rightly regarded them, solely admissible as evidence against D4.

10.  There was nothing unsafe or unsatisfactory about the convictions.  On the contrary, the evidence all pointed one way.

11.  The applications were without merit and are dismissed.

12.  Mr Choy addressed us, at our invitation, as to whether an order for loss of time should be made.  This is precisely the type of case to which section 83W of the Criminal Procedure Ordinance, Cap. 221, is directed, enabling the court to order that the whole or part of the period served pending appeal shall not count towards sentence.  It is difficult to envisage a less meritorious application for leave to appeal.  The court lists should not be further burdened with applications of this kind.

13.  We shall order that 2 months of the time which D1 and D3 have spent in custody pending their applications shall not count towards the sentence each of them is serving.

14.  Mr McWalters, for the respondent, applied for costs.  Having allowed Mr Choy time in which to take instructions and having heard him on costs, we shall order that D1 and D3 each pays half of the respondent’s costs, to be taxed if not agreed.