HKSAR v. WONG SHUN WAH AND ANOTHER

CACC 492/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 492 OF 2003

(ON APPEAL FROM HCCC NO. 181, 205 & 308 OF 2002)

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J U D G M E N T

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Hon Woo VP (giving the judgment of the Court):

Introduction

1. The 1^st Applicant Wong Shun-wah and the 2^nd Applicant To Man-kum were convicted of a count of conspiracy to defraud after trial before Pang J and a jury in the Court of First Instance on 17 October 2003.  On 31 October 2003, Pang J passed a sentence of seven years’ imprisonment on each of the applicants.  The applicants originally applied for leave against both conviction and sentence.  At the commencement of the hearing before us, on behalf of the 1^st Applicant Mr Bruce SC abandoned the application regarding sentence. 

2. There were originally eight defendants facing trial.  The prosecution offered no evidence against the 4^th defendant and proceeded against the other seven defendants.  Altogether, eight counts were charged against these seven defendants or one or more of them.  The 1^st Applicant was D3 and the 2^nd Applicant was D5 before the judge.  

3. This was one of the “short piling” cases.  All the offences arose out of the foundation works relating to Tin Chung Court, Tin Shui Wai Area 33, Phase I, which was a Hong Kong Housing Authority (“HKHA”) Home Ownership Scheme development.  In the summer of 1999, when the development project was near completion, the Housing Department, the executive arm of HKHA, found that lifts could not be installed into Blocks 1 and 2 due to excessive settlement of the foundation, causing tilting of the two blocks.  All the defendants were involved one way or the other with the design and construction of the pre-cast pre-stressed concrete (“PPC”) piles that were used. 

4. Hsin Yieh Architects and Associates Limited (“HYA”) was engaged to manage the construction of the foundation on behalf of HKHA.  In September 1996, the contract for the foundation works was awarded to Franki Contractors Limited which later changed its name to B+B Asia Limited (“B+B”).  The foundation contract was a “design and build” agreement under which B+B was responsible to design and build the foundation pursuant to the general and particular specifications of the contract.

5. The defendants were either the personnel of B+B or HYA.  HYA represented HKHA at the site and was responsible to ensure that the foundation works were carried out in accordance with the terms of the contract awarded to B+B.  Out of the eight charges brought against the seven defendants, three were for conspiracy to defraud HYA and HKHA, namely, Counts 1, 2 and 6, and the remaining counts (Counts 3, 4, 5, 7 and 8) are all for offences of using a false instrument relating to the records of the piles at the site.  

6. The trial lasted over 80 days, at the conclusion of which, the jury convicted the 1^st and 2^nd Applicants on Count 6, and found them and the other defendants not guilty of any of the other counts on the indictment.

Count 6

7. Count 6 is a conspiracy to defraud, contrary to common law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200.  The particulars of offence read:

“	WONG Shun-wah (D3) and TO Man-kum (D5), on divers days between October 1996 and February 1997, in Hong Kong, conspired together to defraud Hsin Yieh Architects and Associates Limited and the Hong Kong Housing Authority by dishonestly and falsely representing:
	(1)	that the lengths of all as-built driven piles for Blocks 1 and 2 of Tin Chung court of Tin Shui Wai Area 31 Phase I under the Contract Number 36 of 1996 (‘the Contract’) had purportedly reached the depths as reported in the as-built drawings submitted in Registered Structural Engineer Report dated the 7th day of July 1997; and
	(2)	that all as-built driven piles for Blocks 1 and 2 of the said Tin Chung Court had purportedly reached the acceptable depths in accordance with the requirements under the General Specifications of material and workmanship for Hong Kong Housing Authority Contracts and Particular Specifications as incorporated in the Contract.”

8. It can be noted that the dishonest representations referred to in the particulars of offence are those shown in the as-built drawings of driven piles referred to in the RSE report dated 7 July 1997.  The prosecution’s case was that the depths of all the as-built PPC piles for Blocks 1 and 2 as reported to have reached were false and in fact they did not reach the acceptable depths as represented or in accordance with the requirements of the contract.

9. No issue was taken regarding the driven lengths of the piles.  The parties agreed under section 65C of the Criminal Procedure Ordinance, Cap 221 that the piles for Blocks 1 and 2 were substantially shorter than the lengths as required by the contract. 

10. None of the defendants gave evidence at the trial.  Apart from the fact that D8 called two expert witnesses, none of the other defendants called any other witness.  It was, therefore, a case for the prosecution to prove its case against all of the defendants. 

11. For present purposes, it is only necessary to refer briefly to the evidence of PW5 Fredrick Chung Lap-tak.  He was the project structural engineer for HYA who represented the Housing Department in supervising the construction of the piling foundation by B+B.  He had overall responsibility to supervise B+B in terms of design and construction and was responsible for HYA’s site staff.  According to his evidence, D3 (the 1^st Applicant) became the quality control engineer (“QCE”) employed by B+B.  D3’s duties included inspecting the works and certifying that the works were done in accordance with the plans and specifications.  It was also the responsibility of the QCE, ie D3, to either prepare or countersign the piling records.  The piling records were ultimately used in preparing the drawings referred to in the RSE report submitted to the Housing Department for certifying that the works had been done to specification.  PW5 also told the judge that monthly site meetings were held to discuss progress, problems and policy issues; and that D3 was the key person of B+B at the site.

12. As far as D5 (the 2^nd Applicant) was concerned, he was the assistant clerk of works at the site.  He was employed by HYA on behalf of the Housing Department and represented HYA at the site meeting each month to discuss progress and problems in respect of the foundation works.  PW5 described the resident site staff as “our eyes at the site”.  D5’s duties included checking piling records prepared by D3, while D3 was required to endorse piling records prepared by D5.  D5 was also required to keep piling records and he was HYA’s main representative at the site.  PW5 liaised with D5 on site matters and also liaised with D3 on site matters relevant to B+B. 

The grounds of appeal

13. On behalf of D3, Mr Andrew Bruce SC has raised two grounds of appeal.  On behalf of D5, Mr Kevin Egan relies on only one ground, which is identical to the second ground raised by Mr Bruce.

The signatures

14. The first ground of appeal relates to the propriety of the judge’s remarks in his summing-up relating to the signatures alleged to be D3’s on the records in respect of the PPC piles at the site which, according to the prosecution’s case, gave false information as to the depths of the piles, which was the subject of the conspiracy to defraud counts and the other counts relating to the use of false instrument.

15. As noted above, at the trial none of the defendants elected to give evidence.  Apart from D3 (the 1^st Applicant) and D8, all other defendants were interviewed by the ICAC and the statements made by them in their interviews were adduced in evidence.  While D5 (the 2^nd Applicant) made admissions that the PPC pile records were prepared by him and the signatures of his on such records were his own signatures, D3 had made no such admissions and simply put the prosecution to strict proof that the signatures under QCE on the records were his signatures.  

16. In respect of Count 2 that relates to the final set records of the piles in respect of Blocks 1 and 2, the judge told the jury:

“	There is no dispute with the exception of the 3rd defendant, Kelvin Wong Shun-wah, that the named defendants did sign to witness or to certify the correctness of the records. …
	Bear in mind what I have told you what the prosecution has to prove in a conspiracy charge.  You will have to go through the evidence for and against each defendant.  In this count, the 3rd defendant, Kevin Wong Shun-wah, puts the prosecution to strict proof that the signature under QCE did, indeed, belong to the 3rd defendant and that he signed to certify that everything was in order.  Now, members of the jury, you will note that there is no handwriting expert called by the prosecution to prove this issue but you are, however, entitled to look at all the evidence including the fact that the 3rd defendant was the quality control engineer at the site from latest by mid-November 1996.  There is no evidence suggesting that there is any other QCE at the site from that period onwards.
	On the issue of whether the 3rd defendant did append the signature ‘SQCE’ on those records, you may ask yourself this: if Kelvin Wong did not sign on the forms or that the signatures appearing as the QCE were not his, then Kelvin Wong had not appended his signature on any of the forms produced during this period.  That is, look at the problem from the other side.  The 5th, 6th and 7th defendants do not dispute that their signatures appear on the final set records.  You may ask yourself, ‘What has Kelvin Wong been doing if those signatures were not his?’ But, of course , the prosecution will have to satisfy you beyond reasonable doubt that those signatures were his.  The burden is always on the prosecution.” [Transcript pp 92Q-93Q]

17. In respect of Count 6, the judge told the jury as follows:

“

This count alleges that thee was a conspiracy between the 3rd defendant, Wong Shun-wah Kelvin, and the 5th defendant, To Man-kum, to defraud Hsin Yieh Architects and the Hong Kong Housing Authority by dishonestly and falsely representing that the piles driven had reached the depths as reported in the RSE report and in accordance with the general and particular specs incorporated in the contract.” [Transcript p 94O-R]

18. After pointing out to the jury that D5 did not dispute the signatures but D3 did, as in Count 2, the judge said:

“

The 3rd defendant, Kelvin Wong, again put the prosecution to strict proof that the signature under ‘QCE’ belonged to him.  Now, please bear in mind what I have said about this aspect of the evidence in the previous count.  You will also go through the 5th defendant, To Man-kum’s cautioned interview when you look at the evidence of this count.  What he says during the interview may be of assistance to you.” [Transcript p 96A-D]

19. It is in respect of these remarks by the judge that Mr Bruce raises two complaints as the basis of the first ground of appeal:

(1)	The prosecution had never proved that D3 signed the documents at all.  The question was not, as the judge put it “What has Kelvin Wong been doing if those signatures were not his?”  The question was whether he signed it at all.
(2)	The matter was made worse by the manner in which the judge referred to the admissions by others as to their signatures.  There are said to be two flaws in the judge’s remarks.  The first is that it is irrelevant that D5 signed the records.  The fact that one man signed does not prove the other did.  Secondly, the other defendants’ admission that they signed the records is hearsay and such admission against interest is admissible only against the maker.  The judge failed to make this point clear to the jury.

20. With respect, these points are without merit. 

21. The judge specifically told the jury that D3 put the prosecution to strict proof that the signatures under “QCE” were his.  The judge told the jury that no handwriting expert had been called by the prosecution to prove the issue.  He reminded the jury of the roles, positions and duties of D3 as the site quality control engineer and of D5, D6 and D7 (D6 and D7 being D5’s subordinates) as the resident site staff regarding the records.  We do not see anything improper in the judge’s remarks by referring to the strong circumstantial evidence which enables the only reasonable inference to be drawn that the signatures under “QCE” were D3’s signatures.  As the quality control engineer employed by B+B on site, D3 was obliged to verify the information on the site documents and records.  There was no other QCE on the site except him.  The rhetorical question put by the judge that “What has Kelvin Wong been doing if those signatures were not his?” demonstrates the irresistibility of the inference that can be drawn from D3’s physical presence at the site, his position as the QCE at the site, and his duties as the QCE at the site that the signatures under “QCE” were his.

22. The judge’s reference to the other defendants’ admitted signatures on the records was, as would be properly understood by the jury in the context, to demonstrate that they, as resident site staff, would sign the records, as part of their duties.  Contrary to Mr Bruce’s submissions, this is a relevant piece of evidence for the jury’s consideration.

23. It is correct that the evidence of the signatures of the other defendants on the records as admitted by them is hearsay and is not admissible against D3.  The judge had clearly directed the jury in words to the same effect:

“

Please bear this in mind when you look at the statements.  The statement which a particular defendant made to the ICAC officer in another defendant’s absence implicating that defendant is not, and cannot be evidence, against that other defendant because that other defendant was not present and had no opportunity to contradict it.  You must therefore disregard it when you consider the case against that other defendant.  You must bear that in mind.” [Transcript p 76A-E]

24. Mr Bruce further complains that as a matter of fairness, the judge might have made the point that there is no suggestion that D3 stood to benefit in any way from signing the records and, because of the judge’s references to the admitted signatures of the other defendants on the record, the summing-up in this context was unbalanced.

25. We do not agree.  It was entirely proper for the judge to have reminded the jury of the roles, position and duties of D3 and other defendants regarding the keeping and verification of the records.  It was the duty of D3 as the QCE to sign such records.  While there might not have been any extra benefit that he might have gained from signing the records, it was at least in compliance with his duties as the QCE on site for him to have done so.  D3 elected not to give evidence, which was his right.  However, because of the strength of the circumstantial evidence that the signatures on the records were his, there was no evidence to contradict or undermine the only reasonable inference to be drawn to that effect.  See Li Defan & Anr v HKSAR (2002) 5 HKCFAR 320.  The judge repeatedly throughout the lengthy summing-up that was given over three days of 13, 14 and 15 October 2003, reminded the jury that it was the duty of the prosecution to prove the offence against each of the defendants separately beyond reasonable doubt, and that the benefit of that doubt must be given to the defendant.  We do not accept that the summing-up was unbalanced as suggested by Mr Bruce.  

Two conspirators both guilty or not guilty

26. Both Mr Bruce and Mr Egan complain that the judge erred in his answer to a question raised by the jury after the conclusion of the summing-up.  This is the second ground of appeal.

27. On 15 October 2003, towards the close of the summing-up, the judge told the jury to go into the jury room and that he would be speaking to them again in a few minutes.  The jury left at 9.47am.  The judge then heard submissions by counsel.  When the jury returned at 10.14am the Foreman of the jury said:

“	Excuse me, my Lord.  We have two questions on the statements.”

28. The judge, however, did not ask the Foreman what their questions were.  Instead, he told the jury about some errors that he had earlier made in the summing-up.  He then told the jury that if they had a question, they had to reduce it into writing.  Afterwards the jury retired and the hearing was adjourned. 

29. At 11.08am, the hearing resumed.  By that time, the jury had put three questions in writing furnished them to the judge.  The first question related to the conjunction “and” that was used in the statement of offence regarding the two acts allegedly committed by the relevant defendants in both Count 2 and Count 6 on the indictment, whereas that conjunction was not used regarding the four acts allegedly committed by the defendants under Count 1.  The jury’s first question was:

“	Does this mean that all accused have to commit both of the two acts in Count 2 or Count 6 to be guilty?” [Transcript p. 740C]

30. The second question was:

“	According to the handout [on the law of conspiracy as directed by the judge], conspiracy consists of at least two persons.  In Count 6, there are only two accused involved.  Could we conclude that one of them is guilty, where as the other one is not guilty?” [Transcript p. 740F]

31. The third question was:

“	In Count 1, is Lam Nai-wai assumed to be one of the conspirators if there is a conspiracy?  If the answer is affirmative, could we conclude that only one of the accused is guilty?” [Transcript p. 740H]

32. The judge showed the questions to counsel for all the defendants and D8 who acted in person.  The judge asked Mr Callaghan, counsel on fiat for the prosecution at the trial, who also appears before us,

“	Would you like to put your heads together and I step outside for a few moments?” [Transcript p. 735F]

33. Mr Callaghan told the judge that, “We might be able to come to some consensus.”

34. When the hearing resumed at 11.22am, Mr Callaghan told the judge that the answer to the first question was “Yes”. 

35. Regarding the second question, the transcript at page 736F-O shows the following:

“	COURT:	And question 2?
	MR CALLAGHAN:	The answer to Question 2 is ‘no’.
	COURT:	‘No.’
	MR CALLAGHAN:	There’s got to be more than one conspirator.  We all know that.
	COURT:	‘Could we conclude that one of them is guilty whereas the others is not guilty?’  The answer is ‘no.’
	MR CALLAGHAN:	‘No.’
	COURT:	You can’t conspire with oneself.
	MR CALLAGHAN:	You can’t conspire with yourself.
	COURT:	Right.  It doesn’t fall into the exceptions?
	MR McNAMARA [Counsel for D1]:	‘No’.
	MR CALLAGHAN:	No.
	COURT:	Right.”

36. Then came the discussion mainly between the judge and Mr Callaghan, on the answer to be provided to the third question posed by the jury.  This was followed by a discussion by Mr McNamara with the judge.  The answer to the third question was more complicated and lengthier.  It was:

“

Lam is not assumed to be a conspirator.  He would only be a conspirator if you find he agreed with any of the other named persons to commit the offence.”  “And if you have a doubt that Lam is a conspirator, then all the others charged with Count 1 must be acquitted.”  “Now, if you are sure that Lam is a conspirator, you can convict the person or persons whom you are sure conspired with him.”  “The fact that Lam was given an immunity is not evidence that Lam is a conspirator.” [Transcript p. 740M-741B]

37. It appears from the transcript that the discussions regarding the answers to be given to the three questions raised by the jury were conducted between the judge, Mr Callaghan and Mr McNamara only.  However counsel for the other defendants as well as D8, who acted in person, were there when the discussions took place.  It was almost towards the end of the discussions that Mr McNamara mentioned to the judge that Mr Loughran, counsel for D2, and he “were both a bit surprised at the time”, referring to the matter about Lam’s immunity.  The discussions were held in open court in the presence of all the defendants’ counsel and D8.  The judge also asked D8 of his view on the proposed answers, to which D8 responded that he adopted counsel’s views. 

38. Factually speaking, despite the fact that the judge did not ask counsel for D3 and D5 whether they were in agreement with the answer to the second question raised by the jury, it cannot be denied that the discussions relating to the answers to all the three questions were conducted in open court when counsel for all the defendants as well as D8 were present.  In our view, it is unnecessary for the judge to have asked each counsel specifically whether he agreed with the proposed answers.  Counsel’s presence without making any objection or taking any point would mean that they had agreed to the proposed answers that had been discussed openly mainly between Mr Callaghan and the judge.  Thus it is crystal clear that the answers given by the judge to the jury had the consensus of all counsel representing all the defendants at the trial. 

39. Mr Callaghan, who was counsel on fiat for the prosecution at trial, confirms that the proposed answers were agreed by all counsel.

40. Both Mr Bruce and Mr Egan now accept that counsel for D3 and D5 at the trial, despite not uttering a word during the discussions on the proposed answers, must have agreed to the answers.  However, they submit that the agreement of counsel should not be treated as having the effect of remedying the error or defect in the judge’s direction in his answer to the second question posed by the jury.

41. The ground that the judge had erred in this regard is founded on section 159E(4) and (5) of the Crimes Ordinance, Cap 200, which provides as follows:

“	(4)	A person shall not be entitled to be acquitted of, or to have quashed his conviction for, the offence of conspiracy for the reason only that the only other person or persons with whom he is alleged in the indictment or charge sheet, to have entered into that conspiracy are or have been acquitted.
	(5)	Any rule of law or practice inconsistent with the provisions of subsection (4) is abolished.”

42. These provisions are in terms similar to section 5(8) and (9) of the Criminal Law Act 1977 in England.

43. The case of Shannon v DPP [1975] AC 717, which was mentioned by the judge at the beginning of the discussions on the proposed answers, represented the old law prior to the enactment of the Criminal Law Act.  Counsel for the applicants referred us to Longman & Cribben (1981) 72 Cr App R 121, where after referring to Shannon, the Lord Chief Justice, giving the judgment of the Court of Appeal, stated at pp 124-125:

“	When a trial judge is faced with the task of directing a jury in a case of this sort, where the charge is that A and B conspired together but with no one else to commit crime, he will, as in other cases involving two defendants, as a general rule have to tell the jury that they must consider the evidence against each defendant separately.  Where the strength of the evidence against each is markedly different, usually (as in the instant case) because A has confessed and B has not, he should then go on to explain that because there is that difference in the evidence against each, the jury may come to the conclusion that the prosecution have proved beyond doubt against A that A conspired with B, but have not proved against B that any such conspiracy existed.
	That may appear to be illogical, but it is the necessary result of the rules of evidence which are designed to ensure fairness.  If, therefore, the jury are satisfied that A conspired with B but are not satisfied that there is adequate evidence of B’s guilt, they should convict A and acquit B.  We can see no reason why the jury should not understand such a direction.
	Where at the close of the prosecution case the evidence against one of the defendants is such that it would be unsafe to ask any jury to convict, then it goes without saying that the judge should so rule, and the case can then continue against the other defendant.
	There will, however, be cases where the evidence against A and B is of equal weight or nearly so.  In such a case there may be a risk of inconsistent verdicts, and the judge should direct the jury that because of the similarity of the evidence against each, the only just result would be the same verdict in respect of each: that is to say, both guilty or both not guilty.  He must be careful to add, however, that if they are unsure about the guilt of one, then both must be found not guilty.
	Whether he gives such a direction will, of course, depend on the way the evidence has emerged.  The test is this.  Is the evidence such that a verdict of guilty in respect of A and not guilty in respect of B would be, to all intents and purposes, inexplicable and therefore inconsistent?  If so, it would be an occasion for the “both guilty or both not guilty” direction.  If not, then the separate verdict direction is required.” [Emphasis added]

44. It is to be noted that in Longman, the evidence against Longman was, as described by the Lord Chief Justice, “very, very thin, though not entirely absent.”  On the other hand, Cribben had made “what amounted to a full confession to the police”, and that “that confession, if the jury were satisfied as to its truth, was conclusive evidence against Cribben that he had conspired with Longman in the way that the prosecution alleged.”  The Court of Appeal quashed the conviction of Longman but dismissed Cribben’s appeal.

45. In R v Roberts [1983] 78 Cr App R 41, it was held that where two defendants are charged with conspiracy, it is for the judge, not the jury, to decide whether there is a marked difference between the cases against the two defendants, leading to the possibility that one might be convicted and the other acquitted, and if the judge so decides, he should direct the jury accordingly.

46. Mr Bruce argues that the strength of the evidence against D3 and that against D5 is markedly different.  He relies on D5’s admissions in the interview with the ICAC that he had signed the relevant records relating to the PPC piles, whereas D3 had never made any such admission and had put the prosecution to strict proof that the signatures under “QCE” were his signatures.  The evidence against D3 was purely circumstantial.  Mr Bruce also suggests that it is implicit in the jury’s question (the second question) that they thought that the case in respect of one or other of D3 and D5 was not strong.  He argues that the obvious motivation behind the second question was the difference between the case against D3 and the case against D5. 

47. Factually speaking, it is incorrect to say that the jury had been deliberating for some time before they raised the questions, as suggested by counsel for the applicants.  It was at the close of the summing-up that the Foreman mentioned to the judge that the jury had “two questions on the statements”. 

48. Pausing here, looking at the three questions that they eventually raised, it is clear that by “the statements” the Foreman referred to the statements of offence on the indictment.  The questions all related to the wording of the statements of offence under Counts 1, 2 and 6, the conspiracy counts, and sought clarification from the judge as to the true interpretation of such wording.  No reference at all was made to the facts or evidence upon which the jury was required to deliberate.

49. The jury was told by the judge to leave the court at 9.47am on 15 October 2003.  Following that, the judge heard submissions by counsel and the jury returned to court at 10.14am.  It was barely half an hour in between before the Foreman mentioned that the jury had two questions.  In fact, from sometime after 10.15am on 15 October 2003, the jury deliberated for the rest of that day and on 16 October; they only returned their verdicts on 17 October 2003 at 4.08pm.  They took almost three full days in deliberation.  We do not agree that their three questions, and in particular their second question, were obviously motivated by the difference between the case against D3 and the case against D5, as suggested by Mr Bruce.  

50. Mr Egan also takes the point that the jury were clearly troubled by the evidence against either D3 or D5 because they attempted to solve it by raising the second question.

51. All the circumstances as described above as to the timing and the contents of the questions raised by the jury have to be examined carefully.  The three questions asked by the jury were specifically referable to the statements of offence on the indictment and not any evidence.  They were raised so soon close to the conclusion of the summing-up in such a long trial, which resulted in the jury having to deliberate on their verdicts for almost three full days.  We do not accept that the jury was troubled by the evidence as suggested by Mr Egan.  

52. Mr Egan also argues that there was a marked difference in the strength of the evidence against D3 and D5 respectively.  He summarises the evidence against D3 and D5 in the following manner:

(a)	D3 was the QCE who compiled the piling records – D5 was the Assistant Clerk of Works whose job it was to check them;
(b)	D3 and D5 both signed the records but at different times – days apart;
(c)	D3 had much experience in piling works whereas D5 had none;
(d)	there was no direct evidence of a conspiratorial agreement – it was a matter of inference;
(e)	D3 made no admissions, whereas D5 did but his admissions did not amount to a full confession to conspiracy;
(f)	D5’s answers in his interviews were consistent with him not doing his job properly and becoming aware that certain of the records had been altered after they had been compiled or recorded; and
(g)	the answers do not amount to a confession that he conspired with D3 to defraud the two named victims as alleged in Count 6.

53. As pointed out by Mr Egan’s summary above, although D5 had admitted his signatures on the relevant records, he never admitted that he conspired with D3 to defraud the two victims named in Count 6.  The only so-called “marked difference” of the strength of the evidence against D3 on the one hand and D5 on the other hand that may have any possible substance was D5’s said admissions, as compared with D3’s putting the prosecution to proof that the signatures under “QCE” on the records were his.

54. Mr Callaghan points out that it was not a trial in which the evidence against D3 and D5 on Count 6 was markedly different.  It was not a case dependent on a confession of either one or the other.  D5 did not confess to a conspiracy.  The case against D3 and D5 on Count 6 focussed on their respective overlapping duties at the site in relation to the construction of the piling foundation, and that they were required to check and/or prepare records to confirm at various stages that the piles were being driven to specification.  The records the subject of Count 6 contained details of the progress of construction from start to finish, including the length of the piles and it was never contested that the piles were found to be significantly shorter than that those records showed.  Both D3 and D5 were stationed at the site and had supervisory duties concerning the construction of the piling foundations.  Their duties overlapped to a large extent: D5 was required to check the piling records prepared by D3 and D3 was required to endorse piling records prepared by D5.  D3 represented B+B whereas D5 represented HYA at the site meetings.  The keeping of piling records was D5’s responsibility, and he was HYA’s main representative of the resident site staff, fulfilling the roles of the Housing Department staff.  PW5 liaised with D5 on site matters and he also liaised with D3 on site matters relevant to B+B.  Thus the strength of the evidence against D3 as opposed to that against D5 was not markedly different.  On those bases, Mr Callaghan submits that the evidence on Count 6 was such that a verdict of guilty or not guilty in respect of D3 and not D5 or vice versa would be inconsistent and the effect of the judge’s answer to the second question posed by the jury that these two defendants could only be found both guilty or both not guilty was a correct direction.

55. We agree.  Apart from D3’s non-admission of the signatures under “QCE” in the records were his own, the strength or weight of the evidence against him and D5 was almost identical.  The non-admission of the signatures was apparently not accepted by the jury as the circumstantial evidence pointing to those signatures being D3’s was overwhelming.  In the circumstances of this case, we are of the view that a verdict of one of the applicants being guilty and the other not would be inconsistent.

56. Mr Bruce and Mr Egan rely heavily on the statement made by the Lord Chief Justice in Longman that when a trial judge faces the similarity of the evidence against each of two defendants and directing the jury that the same verdict, both guilty or both not guilty, be returned, the judge “must be careful to add, however, that if they are unsure about the guilt of one, then both must be found not guilty.”  Both counsel complain that the trial judge did not adopt such a rider as suggested by the Lord Chief Justice.

57. While it is correct to say that when the judge gave the answer “no” to the second question posed by the jury, he did not add any rider as suggested in Longman.  However, throughout the summing-up, the judge had on a number of occasions asked the jury to consider each count separately and the case against each of the defendants separately on each count.  He directed them that a conspiracy must consist of at least two persons.  He told them to look at the evidence for and against each defendant carefully and separately.  He emphasised to them that the prosecution must prove the defendant’s guilt beyond reasonable doubt in each of the charges and separately. 

58. The judge reminded the jury that D3 had not been interviewed and that D5 had no experience in PPC piles at all.  He summed up the different roles, positions and duties of both D3 and D5 in relation to the construction of the piling foundation.  He also drew the jury’s attention to the evidence in respect of their involvement in such works.

59. In his answer to the jury’s third question, the judge expressly directed them that if they were in doubt about Lam Nai-wai (“Lam”) being a conspirator, then all the defendants in Count 1 must be acquitted.  Count 1 was an alleged conspiracy between D1, D2, D3 and D8 with Lam.  The judge’s answer (referred to in paragraph 36 above) was given immediately after his answer to the second question posed by the jury.  The answer to the third question also made it clear that if the jury were sure that Lam was a conspirator, then the guilt or otherwise of each of the defendants charged under Count 1 would depend on whether the jury were sure that he conspired with Lam.  In our judgment, the answer to the third question would have made it clear to the jury that if they are not sure of the guilt of a conspirator, the other alleged conspirator cannot be found guilty and that if they are not sure of any defendant’s guilt, then they must acquit him.

60. It would be quite inconceivable for the jury in this case, who had taken almost three full days to deliberate upon the verdicts and eventually acquitted all eight defendants on all counts against them, save these two applicants on Count 6 alone, to have been oblivious of the judge’s clear directions as to the burden and standard of proof, the law of conspiracy which must consist of at least two persons, and their being required to consider the case and evidence against each defendant separately on each of the counts, and to have been so perverse as to find a defendant guilty even if they had a reasonable doubt as to his guilt.  We are not persuaded that the jury could possibly have found one of the applicant’s guilty, and while entertaining a reasonable doubt as to the guilt of the other applicant would nevertheless find him guilty as well.

61. While it is desirable for the judge to have adopted the rider as suggested in Longman, we are not persuaded that in all the circumstances of the instant case, the absence of the rider in the answer to the jury’s second question has the effect of rendering the conviction of both D3 and D5 either unsafe or unsatisfactory. 

Sentence

62. Originally, both applicants sought leave to appeal against sentence.  Mr Bruce has on behalf of D3 (the 1^st Applicant) abandoned D3’s application, which is now formally dismissed.

63. Before sentencing, counsel for the prosecution informed the judge, without any demur by counsel for the applicants, that the Government would incur an estimated $189,830,000 for the remedial works on the foundation of Blocks 1 and 2.  A further $60,000,000 would be incurred for reinstating the buildings back to their original state.  The judge’s attention was also drawn to the case of Secretary for Justice v. Li Che Hing and Ors (2000) 4 HKC 43, which was also a short piling case.  Mayo VP, then Acting CJHC, in allowing the Secretary’s application for review against sentence, stated at pp 47F-I as follows:

“	It has to be said immediately that this was a very serious offence which carries a maximum of 14 years’ imprisonment.  What is involved is a major public safety issue.  The failure to comply with the necessary requirements almost inevitably will subject any buildings erected on the site to the grave hazard that they might collapse and thus cause loss of life and severe injuries to the occupants of the building.  The number of people placed at risk could run into the hundreds.  This is to say nothing of the cost of effecting remedial measures to rectify the failure to comply with the necessary requirements.
	It is our view that the starting point of five to six years’ imprisonment for the type of offenders referred to by the Judge is far too low and does not adequately reflect the criminality involved.  In a situation where any party is mainly responsible for making the decision to engage in such a scheme, has deliberately failed to comply with the necessary requirements for financial gain and orders subordinates to go along with the deceptions which will inevitably be practiced, a starting point of somewhere in the region of 10 years’ imprisonment would be in no way excessive.”

64. However, his Lordship adopted a starting point, which he said the trial judge should have adopted, of six years’ imprisonment for the respondents, who were respectively the project manager, site agent and site engineer of the project.  They had obtained no financial benefit themselves for what they had done. 

65. In the instant case before us, taking into account the fact there was no evidence of the applicants having received any financial gain and that they did not belong to the senior management, the judge adopted a starting point of eight years’ imprisonment for each of the applicants.  The judge gave a one-year discount for their clear records and passed a sentence of seven years on each of them.

66. It is submitted on behalf of the 2^nd Applicant that when adopting a starting point of eight years’ imprisonment, the judge erred in considering only the staring point of ten years recommended by the Court of Appeal in Li Che Hung for the main culprit who was responsible for making the decision to engage in a short piling scheme for financial gain and ordering his subordinates to go along with the deception.  The judge, it is submitted, erred in failing to consider the starting point of six years of imprisonment adopted by the Court of Appeal for the respondents in that case, who was the project manager, site agent and site engineer respectively.  Complaint is also made that the judge had failed to take into account that D5 (the 2^nd Applicant) did not order his subordinate resident site staff, namely, D6 and D7, to go along with the deception.

67. Looking at the circumstances of this case, noting as Mr Egan submits, the junior position of Assistant Clerk of Works held by the 2^nd Applicant in the set up and the organizational hierarchy, the absence of any financial gain obtained or to be obtained by him, and his not having ordered or instructed his subordinates to go along with the deception, one might consider the starting point of eight years’ imprisonment adopted by the judge as manifestly excessive.   However, as the 2^nd Applicant was the most senior of the resident site staff and he was HYA and the Housing Department’s “eyes at the site”, he should have discharged the duties he owed to his employer in supervising the works of B+B, especially when there was anything which would cast doubt on the quality and safety of such works.  While we accept that he did not have any experience about PPC piles, the depth of the piles as driven into the foundation must have been obvious to him as the supervisor on site, and he must have known that the records relating to the piles that he had admittedly signed would provide false information in that regard that might well jeopardise lives in the order of hundreds if not thousands, bearing in mind that each of the two blocks of building to be built on the foundation would be 42 storeys tall.  The seriousness of the offence can in no way be downplayed and a significant aspect of sentencing that is applicable to this case is to reflect the public’s abhorrence as well as to deter others who might otherwise harbour the wrong belief that the courts might deal with them leniently.  We would emphasise the fact that without the complicity of those in a supervisory capacity, contractors who wish to engage upon offences of this kind could not do so.  The role thus played by persons in the 2^nd Applicant’s position in this case is vital, and sentences must accordingly take that in account.  It was fortunate that the tilting of the lift shafts in Blocks 1 and 2 had been noticed well before the buildings were occupied, and thus no life was put at risk, albeit about $250,000,000 had to be incurred to remedy the foundation and reinstate the buildings. 

68. In all the circumstances, we consider that an appropriate starting point in respect of the 2^nd Applicant would have been seven years’ imprisonment.  The judge adopted a higher starting point of eight years, but in our judgment, he should not have given a one-year discount to the applicant purely based on his clear record.  In Li Che Hung, the Court of Appeal said at p 49B:

“	Mr McWalters was quite correct in pointing out that for an offence as serious as this little if any discount can be given for previous good character.”

69. We agree and consider that there should be no discount for the clear record.  In the result, the starting point of seven years’ imprisonment would be the appropriate sentence for the applicant.

Conclusion

70. We regard the ground that the judge had not used the rider as suggested in Longman as arguable.  Thus, we grant leave to both applicants to appeal against conviction.  Treating the application for leave as the appeal proper, however, for the reasons given above, we dismiss the appeal.  As far as sentence is concerned, we would not disturb the sentence passed by the judge, and the application of the 2^nd Applicant is dismissed.