HKSAR v. LAU KAM KEE, EDMUND

CACC 384/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 384 OF 2007

(ON APPEAL FROM DCCC NO. 256 OF 2007)

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J U D G M E N T

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

Introduction

1.  The applicant was convicted by District Judge Chua after trial of 5 charges of “agent accepting an advantage”, contrary to sections 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 (“POBO”), and one charge of “conspiracy to offer advantages to an agent”, contrary to sections 9(2)(b) and 12(1) of the POBO and sections 159A and 159C of the POBO. 

2.  He was sentenced to a total of 33 months’ imprisonment.  This is his application for leave to appeal against conviction and sentence.

Background

3.  The applicant joined Barbican Construction Company Limited (“Barbican”) on 1 August 2002, and since 1 January 2005 was an assistant project manager. 

4.  Barbican was a subsidiary of NWS Holdings Limited, a contractor of the Civil Engineering and Development Department in relation to slope maintenance works.  Barbican had been awarded contracts GE/2001/35 (“Contract 2001”), GE/2004/03 (“Contract 2004”) and GE/2005/42 (“Contract 2005”).  The applicant represented Barbican at the sites in connection with those contracts.

5.  Barbican in turn subcontracted the slope maintenance works to various subcontractors.

6.  Parts of Contracts 2001 and 2004 were subcontracted to Fuk Shing Engineering Company (“Fuk Shing”) in April 2003 and November 2004.  Mr Lai Kam-fuk (PW5) was the sole proprietor of Fuk Shing. 

7.  In or about March 2006, Fuk Shing was in financial difficulties and its Subcontract-FS2 was terminated by Barbican.  Another subcontractor also surrendered its subcontracts due to financial difficulties.

8.  The works left unfinished by Fuk Shing and the other subcontractors were then subcontracted to Wealth Success Construction Engineering Company Limited (“Wealth Success”) and Workbase Engineering Limited (“Workbase”).

9.  Parts of Contracts 2004 and 2005 were also subcontracted to Wealth Success between December 2005 and May 2006.

10.  Parts of Contract 2004 were subcontracted to Workbase in June and August 2006. 

11.  Under the subcontracts, Barbican had to make interim payments and advance payments to the subcontractors, depending on the progress of the works or in order to relief the financial pressures of subcontractors.  Sometimes, payments were made by Barbican directly to workers and / or such subcontractors.  The applicant assisted in certifying the interim payments certificates.

12.  Barbican had issued a “code of conduct” for its employees, prohibiting them from solicitation and / or acceptance of advantages of over $200 without the permission in writing from his managing director.  The applicant had never sought or obtained permission for the solicitation and / or acceptance of an advantage.

The prosecution case

13.  The prosecution’s allegations, in broad terms, were that, as an assistant project manager, the applicant was in an influential position in awarding Barbican’s subcontracts as well as arranging interim payments to its subcontractors, and by virtue of that position, the applicant accepted bribes from a number of subcontractors.  The ICAC investigation was launched after PW5 who was aggrieved by Barbican’s termination of his subcontracts decided to inform on the applicant.

The Charges

14.  The 6 charges fall into 3 categories:

(1) Charges 1 and 2

It is alleged that the applicant had accepted 2 corrupt payments, $80,000 and $40,000 in May and July 2006 respectively from So Wing-shan, the major shareholder and operator of Wealth Success.  So Wing-shan (as D2) was originally charged with offering these corrupt payments to the applicant.  However, because of his poor health, So Wing-shan’s charges were severed from the applicant’s.  As a result of the severance, the charges laid against the applicant were re-numbered.  The references in this judgment are to the numbering in the severed charge sheet.  On 29 August 2008, Chief District Judge Patrick Li ordered that So Wing-shan be absolutely discharged pursuant to section 76(2) of the Criminal Procedure Ordinance, Cap. 221 because he was unfit to stand trial due to disability. 

(2) Charge 3

It alleges a conspiracy between the applicant and PW5, the sole proprietor of Fuk Shing to offer advantages to the applicant in relation to Fuk Shing.  Lai Kam-fuk who testified as PW5 had pleaded guilty before he gave evidence to a mirror charge in the Shatin Magistracy but whose sentence was adjourned pending the applicant’s trial.  We were informed that Lai Kam-fuk has been sentenced to imprisonment for 9 months.

(3) Charges 4 to 6

These allege that the applicant had accepted 3 separate corrupt payments, $50,000, $80,000 and $70,000 from Lau Chung-ho, a director of Workbase.  Those payments were routed through the bank accounts held by PW6 and PW7, both immunized witnesses for the prosecution. 

The Evidence

The 2^nd charge

15.  Shortly after the interim payments to Wealth Success by Barbican for Contract 2005, $40,000 in cash was withdrawn from Wealth Success’ account on the instruction of So Wing-shan and put into an envelope.  On 4 July 2006, the applicant whilst being monitored by the ICAC, was seen meeting So Wing-shan at the Garden Restaurant in Yau Ma Tei, when So Wing-shan passed a long white envelope to the applicant in the presence of his son-in-law (PW10).  PW10 had earlier given the white envelope to So Wing-shan.  During the applicant’s 1^st video interview by the ICAC he said:

“… [So Wing-sang] thrust it over under the table …”

and that the applicant

“… just thrust it into the pocket of the trousers first”.

16.  The applicant was then arrested and the long white envelope was found to contain 40 $1,000 notes and this was the subject of the 2^nd charge.  The applicant was escorted back to ICAC headquarters.  His 1^st video recorded interview took place between 1542 and 1628 hours.  During this interview, the applicant said that the $40,000, the subject for the 2^nd charge was given to him by So Wing-shan:

“291. … probably, usually, that is, sometimes, I grumbled that I was poor, having low salary, something like that.

……

293.  … Probably, he helped, took it as helping me”.

At 320-321, when asked whether the $40,000 was a bribe he said he could not distinguish.  At 354, the applicant was asked (A was the investigator, C was the applicant):

“354.   A Well, on this occasion, when he gave you the forty  thousand dollars, what was the reason?

355.    C  Just as I stated earlier on, it was, I felt that he wanted, wanted to help me.”

Such evidence has not been disputed by the applicant.

The 1^st charge

17.  The evidence was that after Barbican had made payments to Wealth Success in connection with Contracts 2004 and 2005, So Wing-shan asked PW10 to issue a cash cheque for $80,000.  The cheque was subsequently encashed.  So Wing-shan instructed a staff of Wealth Success to withdraw $80,000 in cash.  So Wing-shan called PW10 and asked for a bundle or file of documents and the $80,000 cash to be delivered to him at the Garden Restaurant.  The file of documents and the cash, which was in a white envelope was handed by PW10 to So Wing-shan.  Then they were at the bank of the Garden Restaurant when the applicant came in a van.  They got in the van.  According to PW10 the file was handed over (he could not tell whether the white envelope was inside the file) but he heard So Wing-shan said:

“… the ‘So (數)’ was here.”

PW10 gave his evidence in Cantonese.  His evidence was interpreted.  It is of interest to note that the court interpreter initially interpreted what he said as:

“I remember So Wing-shan had said that the sum of money was here.”

In other words, the court interpreter interpreted the Chinese word “So” as “the sum of money”.

18.  PW10 was a graduate in economics and knew English.  PW10 challenged the interpretation of “數” as “the sum of money”.  Then, there was this exchange in the transcript at page 585:

“Court: What exactly did you … what words exactly did you …

Interpreter: “So”.

A.   Witness (PW10) answers in English.  The numbers, well, to translate in English, the numbers.”

Later PW10 said the applicant in response said “It’s okay” but PW10 added “He took it.  Well, I do not remember the exact words used.”

19.  PW10 is correct that “So” （“數”） in Chinese literally meant “number” or “numbers”.  But in the context, we have no doubt that it referred to money.  We also note that in Ms Lan’s cross-examination of PW10, she had not suggested to PW10 that there was not the occasion as described by PW10 or that although a file had been given to the applicant, it contained no money. 

20.  In finding that the payment under the 1^st charge proved, the judge mentioned the striking similarities between the payments under the 1^st and the 2^nd charges and concluded that the similar evidence rule applied. 

21.  The learned judge held that So Wing-shan had paid the $40,000 and $80,000 to the applicant on the two occasions because the applicant had assisted in the award of contracts and influenced the interim payments to Wealth Success.  The learned judge concluded that the $40,000 and $80,000 were corrupted payments to him as a reward for showing favour to Wealth Success.

22.  The learned judge rejected the suggestion that the applicant received the payments for moonlighting advice given to So Wing-shan.  At trial, Mr Mackay for the prosecution accepted that if the payments had been made to the applicant for moonlighting then the offence would not have been made out.  We must proceed on the basis of the concession.  But we do not want it to be thought that we agree that payment for so-called moonlighting work cannot in any circumstance constitute an offence under section 9. 

The 3^rd charge

23.  The direct evidence on the 3^rd charge against the applicant came from PW5 who had pleaded guilty to the mirror charge and was then awaiting sentence pending the conclusion of the case against the applicant.  There was of course the applicant’s admission in Exhibit P2.

24.  PW5 alleged that the applicant had asked him for 5% of the contract sum as introduction fees and for the assistance he rendered to Fuk Shing in the preparation of documents, including the application for interim payments.  PW5 said he had paid a total of over $100,000 to the applicant after Fuk Shing received payments from Barbican. 

25.  The prosecution also sought to rely on Exhibit P2 which was PW8’s notebook entry, the admissibility of which was challenged, in particular, insofar as it purported to record the applicant’s admission that he had received over $100,000 from PW5.  Exhibit P2 is the entry in the notebook of Chee Ming-him (PW8), a Senior Investigator with the ICAC which had been signed (in various places) and acknowledged to be correct to the applicant.  The applicant challenged its admissibility.  Put very briefly, the applicant denied ever admitting to the receipt of any money from PW5 and that he signed Exhibit P2 after being threatened.  Ms Lan had produced at trial a 5-page long Grounds of Objection.  The applicant gave evidence in relation to the admissibility of Exhibit P2 but not on the general issue.

Voir dire

26.  The learned judge held a voir dire in relation to Exhibit P2.  As noted, the dispute in relation to Exhibit P2 (Exhibit P2a is its translation) concerned in particular, the statement therein allegedly made by the applicant that he had received over $100,000 from Lai Kam-fuk, the subject of the 3^rd charge.  The applicant gave evidence in the voir dire.  The learned judge ruled in favour of admissibility.  In her ruling she said:

“Court: This is my ruling on the voir dire. The defendant has objected to the admissibility of the record made by PW8, an ICAC officer in his notebook, Exh.PP2, subsequent on the finding of an envelope with contents in the defendant’s car after a search on 4 July 2006. I will not rehearse the details given in the grounds of objection to the admissibility of this notebook which has been given in evidence by the defendant. It can best be summarized as the fact that he signed the notebook entries involuntarily, having been threatened and induced to do so by PW8. I have heard the evidence given by PW8, PW9, another ICAC officer, and the defendant. I have viewed the short video interview made on 5 July which was originally not part of the prosecution case. I have noted the discrepancy in the evidence regarding what happened on 5 July, a note of which was made by PW8 and his explanation for the record, see page 17 of PP130. I have understood the submissions made to me by the defendant's counsel, Ms Gekko Lan.

   With regard to the discrepancy, I believe PW8 has a reliable recollection of events. On all the evidence before me, I find the prosecution has proved beyond reasonable doubt that the defendant's allegations are unfounded, that the notebook record is accurately recorded and the defendant signed on it voluntarily.”

27.  Mr Grossman submitted that it was improbable that the applicant who had denied the receipt of any money from PW5 during the 1^st video interview would have subsequently admitted to PW8, that he had received “over one hundred thousand (dollars)” from PW5.  But Exhibit P2 was recorded at about 2000 hours on 4 July 2006.  Between the 1^st video-recorded interview and the recording of Exhibit P2, there had been a search at the applicant’s office and searches on two vehicles, where copies of cheques and invoices relating to charges 4 to 6 were found, including:

(1) an envelope containing two invoices issued by Hung Fat Engineering Company (“Hung Fat”),

(2) two copies of a Hang Seng Bank cheque dated 9 June 2006 issued by Workbase, in the sum of $50,000 payable to Hung Fat,

(3) two copies of a Hang Seng Bank cheque, dated also 9 June 2006 issued by Workbase, in the sum of $80,000 payable to M.E.T. Engineering Ltd (“MET”),

(4) two copies of a Hang Seng Bank cheque, dated 16 June 2006 issued by Workbase and made payable to MET,

(5) an original deposit slip dated 9 June 2006, depositing $50,000 into the bank account of Hung Fat with HSBC,

(6) an original deposit slip dated 9 June 2006, depositing $80,000 into the account of MET with HSBC,

(7) an original deposit slip, dated 16 June 2006, showing a deposit of $70,000 into the account of Hung Fat with HSBC,

(8) an original cheque deposit advice dated 12 June 2006 showing a deposit of $80,000 into the HSBC account of the applicant’s wife,

28.  It was the prosecution evidence that upon finding those documents, the applicant was asked what they were and the applicant said it was Ah Ho of Workbase who lent him the money. The applicant also admitted to have received over $100,000 from Fuk Shing.  The applicant’s admissions were then recorded in the notebook of PW8, which became Exhibit P2.

29.  The learned judge concluded that PW5 had not fabricated the essential core of his allegation against the applicant and that the applicant himself had admitted receiving over $100,000 from PW5. The learned judge therefore also convicted the applicant of the 3^rd charge.

The 4^th to 6^th charges

30.  The 4^th to 6^th charges related to alleged payments from Workbase to the applicant. Apart from the applicant’s admission that the payments came from Ah Ho of Workbase, there was the evidence that the applicant issued false invoices to create fictitious transactions between Hung Fat, MET and Workbase to cover up the true nature of the payments after corresponding payments were made by Barbican to Workbase.

31.  The applicant not only made admissions to the ICAC about the payments, but also suggested that he did not want others to know about them, and that is why he approached his friends in order to be able to use the names of Hung Fat and MET to collect the payments.

32.  The learned judge concluded that the payments to the applicant by Workbase were corrupt payments in order that the applicant would continue to show favour to Workbase.

Defence Case

33.  The applicant did not give or call any evidence, but through his counsel, suggested in cross-examination that the payments under the 2^nd, 4^th to 6^th charges were rewards for moonlighting work. The payment under the 1^st charge was said not have been proved.  As for the alleged payments under the 3^rd charge, the suggestion was that PW5 lied.  In any event, it was said PW5 was not a reliable witness and his evidence should not have been acted upon.

Grounds of appeal

34.  Mr Grossman leading Ms Gekko Lan, appearing on behalf of the applicant, advanced 24 grounds of appeal in the perfected grounds of appeal.  We have had the benefit of carefully prepared written submissions from the applicant.  We will deal with the submissions in the order as they appear in the applicant’s written submissions.  We are also indebted to Mr Marco Li, who appears for the respondent, for his helpful submission.

Grounds 1 - Perception of victims not state of mind of the applicant

35.  This applies to all the charges and comes under the above heading.

36.  Mr Grossman submitted that the learned judge erred in finding that in proving the offences, it was the perception of the victim as opposed to the applicant’s state of mind which mattered.  We have been referred to para. 38 of the Reasons for Verdict (“the Reasons”).  But it is clear that the learned judge was aware that it was for the prosecution to prove that the applicant knew that the payments were for corrupt purposes.  The learned judge said:

“28.   Miss Lan is right in her closing address to submit that on each charge, it is for the prosecution to prove beyond reasonable doubt two matters. These are:-

(1) that each alleged sum of money was in fact received by the defendant, and

(2) that the defendant knew such payment was for a corrupt purpose.”

37.  With respect, Mr Grossman has taken the passages in the judgment referred to by him out of context.  There the learned judge was dealing with Ms Lan’s submission, which she has quoted as follows:

“37.   … The subcontractors were aware of the fact that it was not necessary to ‘bribe’ anyone for the purpose of ensuring project fees were paid.”

Ms Lan’s suggestion seemed to be that the payments were not bribes because bribes were not necessary.

38.  It was in that context that the learned judge referred to the prosecution submission that although bribes were not necessary it was the perception of the victim which mattered.  The learned judge said:

“It is the prosecution case that it is perception of the victims that counts and that they saw the defendant as the pivotal man at the site who could influence, firstly, their appointment by suggesting that their company be considered, whether or not they were on the approve list of contractors, and secondly, the timing and amount that they were paid.”

39.  That was followed in para. 39 by a reference to section 11 and the fact that it was no defence that the applicant was unable to help or that he never intended to do so.

40.  Mr Grossman also complained that the learned judge should not have found that the applicant knew that the payments were corrupt payments.  He submitted there was no support for the learned judge’s finding that in relation to the payments from Workbase:

“… that the defendant knew this clandestine payments were corrupt payments by Workbase to the defendant because the defendant was perceived as having shown favour to it and in order that it should continue so to do.”

41.  But as Mr Marco Li submitted, the facts in the present case are in many respects very similar to those in Li Defan and Anor v HKSAR [2002] 5 HKCFAR 320.  There, D1 was the head of the business development department of a bank, who was paid almost HK$4 million by a customer to facilitate the approval of loan to him of US$40 million. Bokhary PJ, in his judgment, which was agreed to by the other members of the court said:

“32.   In the present case, the prosecution was obliged to prove that the admitted payment by Mr Fan to Mr Li was an ‘advantage’ offered or accepted, as the case may be, to or by Mr Li ‘as an inducement or reward’ for ‘doing or forbearing to do, or having done or forborne to do, any act in relation to’ the affairs or business of the Bank of China or ‘showing or forbearing to show, or having shown or forborn to show, favour or disfavour to any person’ in relation to such affairs or business, contrary to s.9(1)(a) and 9(2)(a) of the Prevention of Bribery Ordinance (Cap. 201). The prosecution had no direct evidence as to why the money had been paid. None of their witnesses was able to prove that Mr Li had done anything unusual in relation to the SHIL loan. But the prosecution relied upon the fact that the parties appeared to have an exclusively business relationship, arising out of Mr Li’s employment by the Bank of China, that he was in a position to ensure that the loan application did not progress as smoothly as it did and the common observation that people do not usually pay large sums of money to business acquaintances without expecting something in return. They invited the inference that the payment was an inducement or reward, if not for doing something specially favourable to Mr Fan, then at least for forbearing to do anything unfavourable. This evidence plainly called for some explanation of why the money had been paid and the appellants, in offering explanations to ICAC, were well aware of this.”

As Li Defan shows, depending on the evidence and circumstances, the absence of direct evidence as to why the payment had been made is not fatal to a conviction under section 9.  Mr Grossman relied heavily on the fact that it was suggested in cross-examination by Ms Lan that the applicant might have been moonlighting.  But Mr Grossman accepted that there was no evidence that any of the alleged payments was related to any of the alleged moonlighting work. 

42.  Here, the applicant had not given evidence on the general issue, and in all the circumstances the learned judge was perfectly entitled to infer on the evidence that the applicant knew that the payments were corrupt payments. 

Ground 3

43.  This relates to the learned judge’s admission of Exhibit P2.

44.  Mr Grossman submitted that the learned judge’s ruling on voir dire is too brief.  They can be found in the transcript at pages 574 and 575.  I have already quoted that in para. 26 above.

45.  In the Reasons the learned judge referred to her ruling but did not expand on it.  With respect, we do not agree that the learned judge had given insufficient reasons.  Mr Grossman, in particular, relied on the submission which we have dealt with in paras. 27 and 28 above.  However, it is clear that during the 1^st video interview, the applicant told the ICAC officers that, apart from the $40,000 which he was seen receiving when he was arrested, he had not received any money from any other subcontractors he had mentioned, including PW5 (see 360-367).  But after the various documents were found, and it became clear that money had been received from Workbase, and he had used companies belonging to his friends PW6 and PW7 to receive them for him, Exhibit P2a went on to record:

/ a friend

“LAU    :  “Therefore, I (approached) friends and used two

↑    collect

companies ‘M.E.T. Eng’ and ‘Hung Fat’ to receive the

Sd.

money.” (I’d)Illegible

(sd.) LAU Kam Kee

(sd.) Illegible

CHEE    :  “Were there other (sums of) money?”

LAU  :  “Yes, (from) ‘Fuk Shing’.”  (I’d) Illegible

CHEE    :  “What about ‘Fuk Shing’?” --------------------------------

LAU  :  “‘Fuk Shing’ is a sub-contractor of ‘Barbican’. 

However,  to do it  thus

In the end, ‘Fuk Shing’ failed in the business and then (the project) was sub- contracted to this ‘Workbase’.” 

Sd.

(I’d)Illegible

CHEE   :  “What then?” -------------------------------------------------

CHEE   :  “At the time when ‘Fuk Shing’ was on the job, I received money from LAI Kam-fuk, the boss of

Sd.

 ‘Fuk Shing’.”  (I’d)Illegible

CHEE    :  “How much money was there?”---------------------------

Sd.

LAU  :  “Over one hundred thousand (dollars).”  (I’d)Illegible”

46.  There is nothing in the submission that since the applicant had denied receiving any money from PW5 in the 1^st video interview it was improbable that he would have admitted such receipt subsequently.

47.  In R v Wong Wing-yuet and Ors, unreported, CACC 611/1995, dated 14 February 1997, where after hearing lengthy submissions from counsel against admissibility, the trial judge simply said in his ruling:

“I am afraid I am against you on question of admissibility.”

48.  On appeal Mortimer JA giving the judgment of the court said:

“It is not a tenable submission to suggest that in making that ruling the judge had not fully considered the matters that had just been put before him. Those were matters relating to the police officers failing to follow the guidelines and repetition during the early part of the investigation.”

49.  Here the learned judge had had the benefit of the comprehensive grounds of objection prepared by Ms Lan, the evidence of prosecution witness and the applicant, their cross-examination, and counsel’s very full submission.  In such circumstances we are satisfied that adequate reasons have been given. 

50.  The rest of the lengthy submission on this ground, is an attempt to reopen all the factual arguments advanced before the learned judge.  As Mr Marco Li has submitted, the applicant had given evidence in the voir dire, Ms Lan had cross-examined at great length and addressed the learned judge in detail as to why the Exhibit P2 should not be admitted into evidence.  In such circumstances, we do not see any basis upon which we could possibly interfere with the learned judge’s decision.

Ground 5 - Interruptions by the trial judge

51.  We have read all the references referred to in the written submission.  Mr Grossman was asked to read to us those references which he regarded as most supportive of this submission.  He referred us in particular to pages 523-533 in the transcript, which related to PW5’s record of payment at pages 852-853 of the appeal bundle.  The interruption began when Ms Lan referred to the original because the entries were made by 2 different pens as the ink was different.  The learned judge only had a photocopy. Then there was great confusion because PW5 had mistaken the month as a digit in the numbers following.  But we are of the view that the learned judge’s interjection though frequent were made out of a genuine desire to understand not only the answer but sometimes the questions.  We can see no hint of any bias in the questions.  We will reproduce just a few pages read to us by Mr Grossman.

“A.    Which one? Yes.

Q. And we see figures, right, to the right-hand side to the character ‘Cheung’ we see a ‘5’ and then a ‘2000’, that appears to me to be 2000.

COURT:    I don’t know what you are talking about.

MS LAN:   To the right-hand side of the Chinese character ‘Cheung’ you see a ‘5’ and then a ‘20’ and then I think it’s two more ‘00’.

COURT:    So 52,000?

MS LAN:   Your Honour, in fact, you need to see this original because there are two different coloured pens.

COURT:    Really? Let me have a look. There are two different colours?

MS LAN:   I think you see the 5, 6, 7, 9, 11, 12 and 8 are in blue, while the rest are in black.

COURT:    Do you agree with that?

MR MACKAY: I’m sorry, your Honour?

COURT:    Well, have a look. Which do you say? So you are saying somebody used two different pens? I would not.

MS LAN:   Well, then, in that case …

COURT:    I’m open to submissions on this but I don’t totally agree. Let me see what you’re trying to say. Come here, Ms Lan, Mr MacKay. I want to make sure I understand what you are saying. What are you saying? This, this, this, this in the different pen and this?

MS LAN:   Is it 6, 7, 9, 11, 12 and 8 and these two are in blue pen, while the others is in black pen.

MR MACKAY: A matter of speculation by the defence.

COURT:    Why don’t you ask? You see it may be that the pen is just where the ink comes out. It’s the same handwriting. I mean, we’re not forensic people but …

MR MACKAY: ... it’s apparent it’s two different colours possibly.

COURT:    No, no, but that’s not the point. Ask him.

MS LAN:   Since we are on that, I will ask him …

COURT:    Which one -- do you say it’s significant that it’s different colours?

MS LAN:   Because on the material page, at page 3, where the alleged records are, there are also two different colours, if you can look at it.

COURT:    Yes, but is it material?

MS LAN:   It may be relevant to the question I ask about at page 3.

COURT:    Okay. I personally can’t see that it’s -- I think it’s darker but I would not say that it’s black. Sometimes a pen is not very free flowing.

MS LAN:   Can I …

COURT:    Yes, sure. I’m -- anyway, let’s see whether there is any significance in this.

Q. Now, Mr Lai, page 2.

COURT:    Just ask straight. Did you use a different pen for some of the numbers? Is that acceptable?

MS LAN:   Yes.

A. Yes.

COURT:    Is there a significance? Is there a reason why you use different pens for different numbers?

A. Because those were to be paid to the workers.

COURT:    What do you mean, the ones in blue is what?

A. Those were the figures …

COURT:    No, not those. I don’t know what those -- the ones in, blue, what do they mean and the ones in black, what do they mean? All right, just start with the ones in blue.”

52.  As was said in R v Yeung Mau-lam [1991] 2 HKLR 468 at 473:

“The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.”

53.  That approach was endorsed by the appeal committee of the Court of Final Appeal in Chan Kam-keung v HKSAR, unreported, FAMC 43/2008, 11 September 2008, where the Chief Justice also said:

“13.   Assessments of judicial interventions must be made recognizing the court’s duty to exercise proper management over the proceedings in what often are difficult conditions. …”

54.  Here, the learned judge had to operate under difficult circumstances, and probably due to the interpretation of the evidence, some of the questions and answers were not as clear as they should have been.  Many of the interruptions by the learned judge were prompted by the need to elucidate.  From our reading of the transcript, we are satisfied that the learned judge was courteous and patient with Ms Lan.  As was the case in HKSAR v. Mohammad Jahangir [1998] 1 HKC 455:

“… In particular, at no stage do we find the emergence of any animosity or sarcasm, either of which might have created in the present circumstances, an impression that a fair trial was not being held.

……

… What has emerged in our judgment is that while there were too many interruptions of one sort or another, some of which did disturb the flow of the questions, there was apparently no hostility behind them. …”

55.  Mr Grossman referred us to HKSAR v Chan Kwan-kan [1998] 1 HKLRD 495.  There this court emphasised the importance that the trial judge should retain an air of impartiality and that intervention by a judge that made it impossible for defending counsel to do his duty will lead to the conviction being quashed.  But the present case bears little resemblance to the conduct in Chan Kwan-kan. 

56.  Mr Grossman also referred to instances in the past where the same learned judge had been severely criticised by this court and the convictions quashed.  But it is important not to forget that when errors have been identified by the appellate courts, judges do try to modify their conduct.  Sometimes one might not succeed at once but the desire to improve is real.  We must proceed on the basis of the learned judge’s conduct in this case.  As for the applicant’s comment on the fact that the learned judge had mentioned the possible delay of her holiday on the 12^th day of trial, we are satisfied that that had not in anyway affected the learned judge’s patience. 

Ground 4 - Defence case not dealt with in Reasons for Verdict

57.  Mr Grossman accepted that this is not an independent ground of appeal.

Grounds 2, 6, 8 and 20 - No basis to draw inferences of corrupt intents on parts of the offerors

58.  With respect, we agree with the respondent’s submission that counsel for the applicant seem to have misunderstood the nature of the offence under section 9 of POBO.  Section 9 of POBO covers corrupt transactions with agents, not dishonest acts by agents.  See Ch'ng Poh v The Commissioner of the Independent Commission Against Corruption [1997] HKLRD 652, 656 A-B and 657 A-D.

59.  In this case, the question is whether the defendant had accepted an advantage as an inducement to or reward for or otherwise on account of the applicant showing or having shown favour to a company in relation to the affairs or business of his principal.  The learned judge was entitled to draw the inference, in the circumstances of this case, that the payments were corrupt payments paid to the applicant because of his position and his ability to influence the awarding of contracts as well as the making of payments.  It is true that it was not the applicant who appointed subcontractors or approved interim payments, but he was one of the persons to be consulted before any decision was made by senior personnel or Barbican such as PW1 and PW2.  He was in a position to give technical assistance by virtue of his on-site capacity and was influential, albeit not decisively, in those processes.  Nor is the fact that the subcontracting and payment processes were found to be in order necessarily a complete answer to the charge.  See HKSAR v Fung Hok-cheung, unreported, CACC 368/2007, dated 1 August 2008.

Grounds 7 and 8 - Reversing onus on proof upon applicant and finding that payment by Wealth Success were not moonlighting fees (Charges 1 to 2)

60.  This is what the learned judge said:

“67.   Although PW10 had agreed under cross-examination he knew So had consulted the defendant in regard to other slope maintenance works not from Barbican, the fact of the matter is there was no evidence before me to say specifically that the sums of $40,000 and $80,000 were payment of fees for the defendant's moonlighting advice to So.

68.    In the face of the defendant telling the interviewer in P1 that there was no private contract between him and So (343), I find myself satisfied, in all the circumstances, that the prosecution has proved beyond reasonable doubt, the defendant's acceptance of these large sums of cash, paid to him in a secret manner, that the defendant knew, at the time he accepted them, they were corrupt payments for his continuing to show Wealth Success favour.”

61.  We do not agree that the learned judge had reversed the onus of proof at all.  There was no evidence that the payments were moonlighting fees so far as any of these changes are concerned. 

Grounds 9 and 14(a) - Reliance on 1^st Record of Interview in rejecting applicant’s case under Charges 1 to 2

62.  The learned judge admitted the Record of Interview and she was entitled to rely on it.

In respect of Charge 1

Grounds 10 and 11 - Similar facts evidence

63.  In para. 20 above, we noted that the learned judge relied on the evidence relating to the 2^nd charge as similar fact evidence in relation to the 1^st charge.  Evidence which has sufficient probative value (and not outweighed by its prejudicial value), is relevant and sufficiently similar may be relied on to prove another charge. 

64.  In paras. 61-63 of the Reasons, the learned judge dealt with the similar fact evidence. In para. 63, she enumerated the points of similarity.  She held that the evidence on charge 2 was admissible to prove the payment by So Wing-shan to the applicant to $80,000.

65.  With respect, we agree.  But, of course, such evidence was not all the evidence available to the learned judge.  There was the evidence of PW10 which we have referred to in para. 17 above.  In the circumstances, the conviction on the 1^st charge cannot be regarded as unsafe or unsatisfactory.

Ground 12 - No evidence of payment of $80,000

66.  We understand this to allege that the learned judge ought not to have accepted that payment had been made.  We disagree.  The learned judge was entitled so to find.

Grounds 13 and 14(a) in relation to Charge 2

67.  MR Grossman submitted that in convicting the applicant of the 2^nd charge, the learned judge had taken into account the fact that the payment of $40,000 on 4 July 2006 was close in time to 2 payments received by Wealth Success from Barbican, namely, on 20 and 27 June 2006.  He submitted that this is irrelevant and that it was never the prosecution’s case that Wealth Success would make payments to the applicant soon after it received money from Barbican.  The timing of the payments was something that the learned judge was entitled to take into consideration.

Grounds 15 to 19 (in respect of the Charge 3)

68.  These grounds go to the credibility of PW5.  It would be recalled that he was the sole proprietor of Fuk Shing and it was he who first informed the ICAC against the applicant.  The learned judge was aware of the fact that his evidence had to be carefully scrutinized.  The applicant submitted that no reasonable tribunal of facts could have reasonably relied on PW5’s evidence.  We do not agree.  The learned judge was aware that PW5 was far from being an ideal witness.  In para. 91 she said:

“There are other examples of his U-turns to previous answers which Miss Lan has fully outlined in her written final submissions.”

In para. 93 she referred to “the many discrepancies, allegations and retractions”.  She was keenly aware that PW5 bore a grudge against the applicant and that he was a witness:

“… whose evidence had to be carefully scrutinized”. 

But in the end, she was:

“… convinced he had not fabricated the essential core of his allegations regarding the payments he had made to the defendant.  Corroboration of his evidence is to be found in the defendant’s spontaneous admission to PW8 which, I have found, was accurately recorded in P2”,

namely:

“94.   … From Fuk Shing … at that time when Fuk Shing was on the job, I received money from Lai Kam-fuk (PW5) - the boss of Fuk Shing .. over $100,000.”

69.  We are satisfied that the learned judge’s decision on the 3^rd charge cannot be successfully challenged. 

Grounds 21 to 24 - Reversal of Onus upon Applicant and Finding that the 3 Payments from Workbase were not Moonlighting Fees

70.  These grounds relates to charges 4, 5 and 6.  We would not repeat what we have said previously in this judgment.  There was simply no evidence that the payments were in respect of moonlighting work.

Appeal again Sentence

71.  Mr Grossman did not elaborate on the written submission which relied on the fact that the applicant was a first-offender and a man of good character, the financial hardship that would be suffered by his family and the deteriorating health of the applicant’s parent.  Having regard to the seriousness of these offences and the amount of money involved, we do not believe that the total sentence of 33 months could be described as manifestly excessive. 

Conclusion

72.  The application for leave to appeal against conviction and sentence are dismissed.