HKSAR v. TANG HOI ON BARRY AND OTHERS

CACC117/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.117 OF 2002

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1. 3M (Hong Kong) Limited ("3M") is a company, with headquarters in the USA, that supplies products to the building industry, in particular waterproofing, firestopping materials and window films. The application of these products to building works was not the function of 3M. Rather, the work itself was carried out by companies approved and trained by 3M, called applicators. The products which 3M supplied were used, if chosen after competitive tenders, in projects carried out by the Housing Authority, and approved by that authority and by the Architectural Services Department (ASD) of the Hong Kong Government. The role of the project architect was to provide specifications for the tenders, and his influence on the choice of material was significant, so that the choice of 3M material meant, in effect, the choice of one of 3M's applicators with whom the main contractor would then enter into an agreement. The architect was also of importance to subcontractors in his approval of such works as were executed by applicators in pursuance of such subcontracts as they may have secured for a project.

2. In the trial to which this appeal related, we are concerned in the main with four individuals and their companies:

(1)	Mr Chan Ka Ning, referred to in the case as Patrick Chan. But for one spell which is of no consequence, Chan was employed by 3M in various capacities of influence, from 1989 to May 1999. After 3M discovered that he had established his own company, called New Way, an applicator for 3M, he was forced to resign, and he then established a company called Sleeve-It Fire Systems (Hong Kong) Limited ("Sleeve-It"). Chan features centrally in the case because he was the main prosecution witness. It was he who admitted that between 1995 to his arrest in August 2001, he had been engaged in corruption in the building industry in ensuring that subcontracts went the way of 3M's applicators or, subsequently, to Sleeve-It. In September 2001, he agreed to provide evidence to the Independent Commission Against Corruption (ICAC) to facilitate the prosecution of the other individuals to whom we shortly turn; and in consequence he gave evidence at their trial under an immunity issued upon the normal terms. Having provided statements to the ICAC by which he implicated himself and others in corruption, he then lent himself to conversations with the applicants which were monitored by the ICAC and which supported, so the judge found, the case against them.
(2)	Mr Chang Yu Lin (the 3rd applicant) was at all material times the proprietor of Asian Growing Engineering Limited ("AGE"). AGE was an applicator authorised by 3M to apply waterproofing materials and, at a later stage, its firestopping products. He was the third defendant (D3) at trial. The evidence was that Patrick Chan met him in about May or June 1995, and the prosecution case was that he and Chan put their heads together to make corrupt offers to architects responsible for projects from which AGE could benefit. His suggested involvement in this corruption was said to extend from 1995 to 1998 or 1999, because he and Chan fell out in 1998 and Chan then sought to secure AGE's removal as an applicator, and its replacement by another company called Good Year Professional Service Company ("Good Year").
(3)	Mr Andy Chan Shu Ming (the 2nd applicant) was the proprietor of Good Year. He was (D2) at trial. Good Year was the applicator for 3M's window film products, but from the time of Chan's rift with D3, Chan attempted, with some success, to have D3 sidelined and Good Year replaced as applicator for products additional to window film products. The prosecution case was that D2 and Patrick Chan made corrupt offers to project architects to ensure that 3M articles were used in areas for which Good Year had been appointed as applicator.
(4)	Mr Barry Tang Hoi On (the 1st applicant) is an architect. In September 1997 he joined the Housing Department, the executive arm of the Housing Authority of the Hong Kong Government as an architect and was project architect for, or otherwise in a position of responsibility in relation to, a number of government building projects which feature in the case. Before September 1997 he worked for a company called Rocco Design Limited ("Rocco"), a firm of architectural consultants. That is where he met Patrick Chan and also D3. The charges which he faced covered both periods, that is, whilst he worked for Rocco and whilst he worked for the ASD. He was the first defendant (D1) at trial. The prosecution case against him was that he conspired with Patrick Chan and the applicators to accept advantages from Patrick Chan and the applicators in exchange for favours to be shown, which in his position as architect connected to these projects, he was in a good position to deliver.

These Applications

3. The applicants were tried by HH Judge Line in the District Court upon ten charges. After the close of the prosecution case only one of the applicants, namely, D2 gave evidence. On 6 March 2002 all three applicants were convicted; each of three charges, and acquitted of a number of others. D1 was sentenced to a total of five and a half years' imprisonment. D2 was sentenced to a total of fours years' imprisonment; and D3 was sentenced to a total of three and a half years' imprisonment. Each applicant now seeks leave to appeal against conviction; and D1 and D2 seek leave to appeal against sentence as well.

The Charges

4. The charge sheet follows no chronological or logical sequence, an approach destined to complicate everyone's task. We attempt here to rectify that deficiency.

(a) Charges 6 and 7: Tai Po and entertainment

5. The chronological starting point is to be found in Charges 6 and 7, faced only by D3. Although he was acquitted of these charges, we mention them as a necessary part of the background and because they were covered in detail by the evidence of Patrick Chan whose credibility was much under attack and remains so in this appeal. The charges covered conduct between 1995 and 1997, and the nature of the conduct is the same; but the charges were split to reflect a change in the law in 1996, namely, the abolition of common law conspiracies and their replacement by statutory conspiracies.

6. There was a project in Tai Po for the construction of a vehicle depot for the Urban Services Department, which the ASD had subcontracted to Rocco, or had appointed Rocco as a consultant to oversee; and in mid 1995, D1 became involved in the project as Rocco's architect. This is when Patrick Chan met him. He said that he met D3 about a month later, in May or June 1995. It had been specified that 3M material was to be used for car park deck coating. AGE was then the applicator for this product. But there came a time when the main contractor wanted to replace the material with a cheaper material and the allegation made by Chan was that he met D1 and sought to influence him against this decision and to retain AGE. He said that D3 suggested to him that they should entertain D1 to meals, and there then followed, according to this evidence, extensive entertainment of D1 at nightclubs and restaurants paid for by Patrick Chan and reimbursed by D3. This continued for a while after AGE was retained because the architect had his use, not merely in ensuring that contracts were granted, but in the continued supervisions of works. Charges 6 and 7 charged D3 with conspiracy together with Chan to offer advantages to D1 when D1 was an employee of Rocco, to provide advantages in the form of entertainment, hostess escort services and meals as an inducement to D1 to ensure that AGE maintained its status as the subcontractor for the works at Tai Po.

7. The judge acquitted D3 of these charges. The evidence of Chan had been that he usually paid these night club and sauna expenses with credit cards but the judge held that the credit card evidence "... does not reveal such payments commencing until June 1996. By this time the Tai Po work was over. It was also the case that he said that nightclubbing with him continued after September 1997 with a view to obtaining work at Fanling. The credit card records show entertainment at saunas at this time but not night clubs": paragraphs 43 and 44, Reasons for Verdict. There was more said about this to which we must later return, but essentially it was because the judge could not be sure about the accuracy of the witness on the 'entertainment charges' that he acquitted D3 of Charges 6 and 7. The judge also said that Charge 7 did not pass the prima facie case mark because there was no evidence to show that that conspiracy lasted into the period alleged by the charge.

(b) Charge 9: General Sweeteners

8. Charge 9 refers to events in 1995 and 1996. The evidence was that from 1994 or 1995 until 1998 when Chan and D3 fell out, D3 paid a monthly sum of $5,000 to Chan in order to make AGE more competitive. The effect of Charge 9 directed at D3 alone was that of offering advantages to an agent contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, namely, the payment by D3 of $5,000 per month as an inducement to Chan to inflate the unit price for 3M products on pricelists issued to applicators, so as to ensure that the price quoted by AGE was less, thereby encouraging the success of AGE's applications for subcontracts in relation to those products. It was put on D3's behalf that no such regular payments were made and that such sums as were paid in that amount were in consideration of technical work carried out by Chan for AGE. D3 was convicted of this offence, and sentenced to a term of one year's imprisonment.

(c) Charge 1: Fanling and entertainment

9. In 1997 the Housing Authority was engaged in the construction of a shopping centre and car park at Fanling. This project was known as Fanling Area 49A Phase 2. It will be remembered that D1 moved to the Housing Department in September 1997. He told Patrick Chan that he was working on the Fanling project Phase 2. This interested both Chan and D3 because:

(1)	D3 wanted the subcontract for AGE to apply 3M's deck coating material for the car park; and
(2)	Chan had his own business called New Way, about his involvement in which 3M was then ignorant, which he, Chan and D3, who had an interest in the same business, hoped might be used to apply firestopping materials.

Chan's evidence was that he and D3 agreed, at D3's suggestion, that the two of them fête D1 as they had in relation to the Tai Po project to ensure that D1 would specify the use of 3M's material for which AGE was the applicator in respect of deck coating and that, after that step had been secured, to ensure that D1 would be satisfied with the work that AGE performed. Pursuant to this agreement, so the evidence ran, they entertained D1 lavishly and frequently and that D3 reimbursed such of Chan's expenses as had been incurred. The expenditure was for restaurants, nightclubs, saunas and a trip or two to Macau. This conspiracy was the subject of Charge 1, which ran much along the lines of Charges 6 and 7and upon which D3 was acquitted for the same reason as the acquittal on Charges 6 and 7.

(d) Charge 2: Fanling - a cut for the architect

10. However, D1's cooperation was not to be ensured only by entertainment. The evidence was that it was agreed that D3 and Chan would offer D1 a cut, a percentage, of the contract sums for the deck coating and firestopping projects at Fanling Phase 2. This in the event was not paid because there arose a dispute, it was said, between D3 and D1 communicated to D1 by Chan over entertainment expenses. D3 apparently felt that so voracious was D1's appetite for meals and nightclubs and hostesses that from the percentage should be deducted the cost of entertainment expenses, and D1 complained that this would leave him with only two or three per cent. It was assumed from this that the offer actually made and accepted by D1 was a 5% cut. This allegation formed the basis of Charge 2 the particulars of which ran as follows :

TANG Hoi-on, Barry and CHANG Yu-lin, between the 15th day of September 1997 and the 30th day of September 1998, in Hong Kong, conspired together for the said TANG Hoi-on, Barry, a public servant, namely an Architect of the Housing Department (HD) to, without lawful authority or reasonable excuse, accept an advantage, namely a gift, loan, fee, reward or commission consisting of an amount of Hong Kong currency which represented a percentage of the total contract sum of all subcontract works awarded to Asian Growing Engineering Limited (AGE) to be carried out at the HD development project at Fanling Area 49A Phase 2 (Phase 2 Project), as an inducement to or reward for or otherwise on account of the said TANG Hoi-on, Barry performing or having performed an act in his capacity as a public servant, namely to use his position and influence to assist AGE in obtaining the award of subcontract works in relation to the Phase 2 Project.

Both D1 and D3 were convicted upon this charge.

(e) Charge 8: Fanling - 10% for the architect

11. There was further alleged corruption in relation to the award of contracts for Fanling Phase 2, again including D1 and D3 and Chan. It related to the firestopping material to be used on that project. Patrick Chan and D3 had shares in the business called New Way and it was Chan's evidence that he had offered D1 10% of the project sum as a bribe to ensure New Way's selection as the subcontractor for the fire system on the project. D1 did not reject the proposal. But then Chan told D3 that he was prepared to allow AGE to take that subcontract and although D3 said that the trade practice - that is the corrupt trade practice - was to pay 5% and not 10% as a bribe, 10% had already been agreed, and as a result D3 promised D1 the same 10%. Charge 8 reflected the agreement between D3 and Chan to make such an offer to D1 and did not itself allege a conspiracy to which D1 was a party. D3 was convicted of this offence.

(f) Charges 3, 3A, and 4: D2 replaces D3

(i) Charge 3: Fanling

12. In mid 1998, D3 fell out of favour with both Patrick Chan and D1. The testimony was that D3 had said that he would deduct the entertainment expenses from the percentage which he was paying D1, and that D1 was angry about this. In about July 1998, Patrick Chan also had a dispute with D3 about his work on a project at the Un Chau Estate. Furthermore, in May 1999 Patrick Chan was asked to resign from 3M because his interest in New Way had been revealed, apparently by D3. It was against this background that D1 and Chan moved to nudge AGE out of the picture and to replace AGE, as far as was possible, with D2's company, Good Year, and with Sleeve-It. Whilst Chan was still with 3M, Good Year expressed keen interest in securing the subcontract for placing window film in the Fanling project. Chan's evidence was that there was an agreement between D1, D2 and himself whereby D1 was to make use of his position to specify products for which Patrick Chan and D2 were applicators or agents and that the profit from these projects earned by them would be shared equally. D1's responsibility was to secure business for the companies in which D2 and Patrick Chan had an interest; D2's function was to execute the work; and Patrick Chan was to draw specifications and to provide technical support. In the result, D2's company was awarded window film and light fibre contracts; and Sleeve-It was awarded a contract for fire penetration works. These profits were to be shared as well as the profits from a contract secured by a company called United Foundation Limited which did cladding work at Fanling on D2's introduction to D1; and which resulted in AGE's removal from that contract. This agreement formed the subject of Charge 3:

TANG Hoi-on, Barry and CHAN Shu-ming, Andy, between the 1st day of August 1998 and the 23rd day of April 2001, in Hong Kong, conspired together and with CHAN Ka-ning for the said TANG Hoi-on, Barry, a public servant, namely an Architect of the Housing Department (HD) to, without lawful authority or reasonable excuse, accept advantages, namely gifts, loans, fees, rewards or commissions consisting of such amounts of Hong Kong currency as might be agreed to be paid by subcontractors for their being awarded with the subcontracts for works carried out at the HD development project at Fanling Area 49A Phase 2 (Phase 2 Project), as an inducement to or reward for or otherwise on account of the said TANG Hoi-on, Barry performing or having performed an act in his capacity as a public servant, namely to use his position and influence (i) to cause the use of material in the Phase 2 Project, for which either the said CHAN Shu-ming, Andy or the said CHAN Ka-ning was an agent and (ii) to assist such subcontractors to obtain the award of subcontract works for the said Project.

D1 and D2 were convicted of this offence.

(ii) Charge 3A: Tin Shui Wai

13. We move now to another project, namely, the project known as Tin Shui Wai Phase 7, which was a project for the construction of a shopping centre. The conduct underlying this charge was the same as that underlying Charge 3, namely, an agreement between D1, D2 and Chan to share profits, but this conspiracy required D1 to exert himself in a different manner, for D1 was not the project architect for Tin Shui Wai. The project architect was one Tjong Kee Ming ("Tjong"). So efforts were required to persuade Tjong to favour such subcontractors upon which D1, at the behest of Patrick Chan and D2, alighted. The attempts to curry favour with Tjong had commenced before D2's entry into the Fanling and Tin Shui Wai projects, for there was evidence that D3 had sought to influence Tjong by lavish entertainment. In relation to Charge 3A, it was D1's task to persuade Tjong to mistrust D3 and to replace D2 as a subcontractor at Tin Shui Wai. So too in relation to Tin Shui Wai Phase 7, Patrick Chan was anxious to secure work for his company, Sleeve-It. Accordingly, he asked D1, so went his evidence, to cause AGE to be removed as applicator for firestopping material for that project and to replace Sleeve-It. His evidence was that he offered D1 20% of the contract sum as a bribe. This was to be split between D1, D2 and Chan. In due course it seems, according to this evidence, D2 took over the fire protection subcontract but on the same corrupt terms. Charge 3A reflects these allegations as follows:

TANG Hoi-on, Barry and CHAN Shu-ming, Andy, between the 1st day of August, 1998 and the 23rd day of April, 2001, in Hong Kong conspired together and with CHAN Ka-ning for the said TANG Hoi-on, Barry, a public servant, namely an Architect of the Housing Department (HD) to, without lawful authority or reasonable excuse, accept advantages, namely gifts, loans, fees, rewards or commissions consisting of such amounts of Hong Kong currency as might be agreed to be paid by the said CHAN Shu-ming, Andy for Good Year Professional Service Company being awarded with subcontracts for works carried out at the HD development project at Tin Shui Wai Area 102 Phase 7 (Phase 7 Project) as an inducement to or reward for or otherwise on account of the said TANG Hoi-on, Barry, expediting or having expedited the performance by TJONG Kee-ming, another public servant being an Architect of HD, of an act in the said TJONG Kee-ming's capacity as a public servant, namely to use his position and influence (i) to cause the use of material in the Phase 7 Project for which the said CHAN Shu-ming was an agent, and (ii) to assist Good Year Professional Service Company in being appointed as the subcontractor of the carpark deck coating and fire protection works to be carried out at the Phase 7 Project.

D1 and D2 were convicted of this offence.

(iii) Charge 4: The $2 million offer

14. Charge 4 alleged a specific offer to Tjong by D2 of a sum of $2 million. The evidence as to when this offer was made conflicted. At one stage Patrick Chan said that it was in July or August 1998 and at another, March or April 1999. The allegation was that D2 was anxious to secure for Good Year the deck coating contract for Tin Shui Wai, and that D1, D2, Tjong and Patrick Chan went for dinner to the Shooters Restaurant in Times Square and that, there, D2 followed Tjong to the lavatory, and after his return he told Chan and D1 that he had discussed commission with Tjong, and had offered him $2 million and that Tjong had said they would discuss the matter later. The particulars of Charge 4 read as follows:

CHAN Shu-ming, Andy, on an unknown date between the 1st day of July 1998 and the 30th day of April 1999, in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely a gift, loan, fee, reward or commission consisting of $2,000,000,00 Hong Kong currency to TJONG Kee-ming, a public servant, namely an Architect of Housing Department (HD) as an inducement to or reward for or otherwise on account of his performing or having performed an act in his capacity as a public servant, namely to use his position and influence to assist Good Year Professional Service Company in being appointed as the subcontractor of the carpark deck coating works to be carried out at the HD development project at Tin Shui Wai Area 102 Phase 7.

D2 was convicted of this offence.

(g) Charge 5: Attempting to pervert the course of justice

15. Patrick Chan was arrested on 16 August 2001. He was questioned and placed on bail, and then brought back to the ICAC offices on a later date or dates for further questioning. He was rearrested on 22 September 2000, and he then agreed that he would provide evidence against the others. He made a statement that day, which was video recorded. He was then used by the ICAC to make contact with the other suspects, and those contacts were recorded. The allegation was that during one meeting which Chan held with D1, namely, on 23 April 2001 and which was also recorded, D1 urged Chan not to side with the ICAC and coached Chan as to what he should say. This suggested conduct resulted in Charge 5 which alleged that D1 did an act with intent to pervert the course of justice, which was to induce Chan to make false accusations against officers of the ICAC. This charge was dismissed because the judge said that he could not construe the passage relied upon as one in which D1 had urged Chan to make false accusations against those officers.

The Defence Case

16. D1 and D3 did not give evidence. D2 did. Our short summary of D2's evidence is gleaned from the cross-examination of Patrick Chan on D2's behalf, and from the Reasons for Verdict. In its barest essence, it was that there was no profit sharing agreement and that such payments as were ever made to Patrick Chan were in respect of work which Chan had performed for D2's company and that no bribe was offered to Tjong or to D1, and no money paid to either of them. D2 said that he and Chan and D1 and Tjong became good friends who socialized together and that that, and no more, accounted for the trips to restaurants and to clubs and to Macau.

17. On behalf of D3, who did not give evidence, it was suggested that Patrick Chan had, for a number of reasons, a grudge against D3, not least that D3 had told 3M's head office in the USA about Chan's interest in New Way; and it was established that D3 had also made an allegation to the ICAC of a corrupt approach to him by Chan in 1999. Such payments as were made to Chan by D3 were suggested to have been legitimate payments for Chan's expertise in technical matters.

Reasons for Verdict

18. In his Reasons for Verdict the judge reminded himself of the dangers of relying on the evidence of Patrick Chan, since Chan had a self interest to serve, for it was plain on his evidence that he had himself been involved in the corruption about which he spoke. The judge reminded himself as well that Chan had readily admitted that he wanted revenge on D3, but in this regard the judge said:

"

26.

....but the idea that he decided to achieve this by lying about D3 and that this prompted him to tell so many other incriminating lies about himself was quite unrealistic. No motive was suggested as to why Patrick Chan might falsely accuse and implicate himself in matters that truly never occurred. Realistically, it had to be his desire to get himself out of trouble that motivated his testimony. Was it by means of the truth or lies was the question."

He then remarked that:

"	28.	....if those responsible for granting or recommending an immunity wish to pervert its proper use, they can use its force to persuade a witness to tell a false story. No such suggestion was made in this case to any ICAC officer who dealt with Patrick Chan. The evidence revealed nothing suspicious in the background. The prospect of this having occurred remained a theoretical possibility. There was no evidence, direct or indirect, of bad faith or foul play touching on the contact between the ICAC and Patrick Chan. It was also the case that the nature and quality of Patrick Chan's evidence, with which I am about to deal, was such that I judged that it was not the result of coaching. Its depth and breadth was at odds with the story being not his but that of another.
	.....
	30.	The mainspring of the defence case on the motivation for Patrick Chan to lie had to rest, at least in part, on the basis of his corrupt activities. However, by their nature these activities were not ones that he could conduct in isolation. In practical terms it needed others to fill the roles of sub-contractor and architect. I judged it reasonable to ask who they could be if not those in the dock. This was not a case where a dishonest accomplice could realistically change an identity and say it was x and not y who committed the crime with him. This was so because an unchallengeable background proved for sure who the relevant sub-contractor and architect was in relation to 3M or Patrick Chan in respect of any given project. The point is that if Patrick Chan was truly involved in the corruption that he spoke of there had to be criminal accomplices yet the evidence suggested no other obvious candidates than the defendants.
	31.	It is thus that analysis of the possible motivation of Patrick Chan against the evidence and circumstances of this case provided little succour to the defence. It was not the sort of case where one could see a dishonest prosecutor needing the help of a perjured accomplice to fill out the case against a suspect. It was fanciful to think that his own involvement in corruption was an invention. Self interest to avoid its consequences lay in truthfully naming those involved with him, and these are crimes that cannot realistically be committed alone. The idea that he falsely named others to take those roles, when the roles were tired to jobs and companies with unshakeable links to the defendants, was unworthy of belief. The prospect of undertaking such an exercise could realistically only occur if the ICAC put him up to it and named the candidates they wanted to see convicted, yet there was nothing in the evidence to support such a conspiracy theory. That is why I say there was little for the defence here, and that there something for the prosecution.
	32.	It was forcefully argued that the strength of the evidence of Patrick Chan lay in its breadth and depth and the intricate way that the various parts related to the whole; that it was too massive an edifice to be the result of invention; that the weaving of the story of corruption into the fabric of his evidence was such that it had to be true. It was a good point.
	33.	Patrick Chan answered questions for no less than seven and a half days of court time. Due to the New Year, late disclosure by the prosecution and the indisposition of counsel, those seven and a half days fell between dates as far apart as the 4th to the 22nd of February. Counsel were not repetitious: the length reflected the extent of the material. It was thus that I had ample opportunity and raw material upon which to form my judgment of this witness.
	34.	My judgment was that he was a man who had seen that his self interest lay in telling the truth and that he did his best to do so in his evidence. In the many hours of his testimony I perceived that he had a tremendous grip upon his evidence that exhibited itself in an ability to move seamlessly through the various phases of the story or to enter it at depth whenever asked to do so. The internal consistency of his evidence was impressive. No one could say that it would be completely impossible for a man to invent and maintain a false edifice of this nature and extent, but the difficulty of the task, the ingenuity and intricate Machiavellian touches needed would make the feat one that would be truly exceptional. To survive cross examination basically unscarred and unhurt in these circumstances would likewise speak to the story being true. I judged that this witness achieved just that.
	35.	I also judged that the taped conversations, taken broadly and without going to detail, provided significant support for Patrick Chan. I did not forget that he sought to control the directions of the conversations. What he was able to achieve however, was to speak at length in terms consistent with his story without revealing himself to any of his fellow conversationalists. He was confident to take that task on. Again I do not say that it is wholly impossible to achieve such a task, but the fact that he could successfully accomplish such a thing was a good indication that he was telling the truth.
	36.	There is a mass of detail in the tapes. They are not easy to follow. I have not used any part against any defendant if that part has not been canvassed in a way that allowed for a response and I have not used anything said against anyone not a party to that conversation. I shall content myself in pointing to a few matters that struck me as lending support to the credibility of Patrick Chan." (pages 53-56 Reasons for Verdict)

19. We have set out those particular paragraphs at length because they are key to the judge's acceptance of the evidence of the witness, and because they reveal a common sense approach to evidence and to such indicia as underscore the inherent accuracy or falsity of a story. It is a compelling analysis.

20. The judge thought that there was legitimate criticism to be made of Chan's vagueness as to dates, yet he did not consider that that damaged Chan's credibility. The only area of attack which made the judge pause was the evidence of credit card payments which did not reveal such payments commencing until 1996. To the details of this we must return later. It suffices at this stage to say that the judge found that the dates given by Patrick Chan for payments allegedly made with his credit card as payments made to keep the Tai Po work, did not tally with records produced, for according to the evidence which was before the judge, the records did not reveal such payments commencing until June 1996 when the Tai Po project was already over; and, further, the credit card records showed that a period which Patrick Chan said covered credit cards payments for night club expenses, seemed on the credit card evidence to show payments for sauna expenses only. These disparities led the judge to dismiss the entertainment charges. But the judge expressed the view that they did not diminish the reliability or veracity of the core of Patrick Chan's evidence of the involvement of the applicants in the corruption which he described. The question of real importance, the judge concluded, adding that these were events which occurred a long time ago, was "... whether [doubt on Chan's accuracy about credit card payments] caused sufficient damage to raise doubts about his good faith". The answer was that he had no doubt that Chan's credibility "... survived the point .... Having weighed the matter I was sure that Patrick Chan was a witness doing his best to tell me the truth.": see para 46, Reasons for Verdict.

21. Conversely, the judge did not believe the evidence of the D2, and gave reasons of that disbelief.

Convictions

22. Although each has framed his grounds slightly differently and prayed in aid additional, or sometimes different, particulars, the grounds of appeal against conviction are, in their essence, the same for all the applicants. There are two, and they can fairly be summarized as follows:

(1)	that late disclosure of material evidence by the prosecution deprived the applicants of a fair trial; and
(2)	that the trial judge failed to pay due regard to inaccuracies and untruths in the evidence of Patrick Chan and in particular that he failed to appreciate that Chan's entire account was, necessarily, infected by such inaccuracies as were demonstrated.

Untimely Disclosure:

(1) The history

23. The trial commenced on 4 February 2002. Evidence concluded on 28 Feb 2002, and final submissions were proffered on 1 and 4 March 2002. The verdict was delivered on 6 March 2002, and sentenced passed that day. D1 was initially represented by Mr McLanachan of counsel; D2 by Mr Adams; and D3 by Mr Lok SC and Mr Ip. The Respondent was represented at trial by Mr Schapel.

24. Patrick Chan commenced his testimony on 4 February and completed evidence in chief on Friday 8 February, upon which date Mr McLanachan started cross-examination. That cross-examination stretched through the afternoon session of that day. The hearing resumed on Monday 11 February; but Mr McLanachan was then ill and no evidence, or no evidence of any significance, we understand, was given. Because of Mr McLanachan's illness, the hearing was adjourned. Tuesday 12 to Thursday 14 February inclusive were public holidays, so the hearing resumed on 15 February. Because of Mr McLanachan's ill health, it was Mr Adams who was on his feet on 15 February cross-examining on behalf of D2. We will shortly see that by the following week, Mr McLanachan had dropped out, and Mr Adams took his place as D1's counsel.

25. A reading of the transcript for 15 February discloses that there was disquiet on the judge's part by that date, and on the part of counsel for the applicants, about inadequate disclosure by the prosecuting authorities of unused material. When Mr Adams was putting questions to Patrick Chan about his re-arrest in September 2001, Chan volunteered the fact that:

"Then I agreed to give a statement and the video taping [by the ICAC] started." (Appeal bundle, page 376)

26. This was the first that any counsel knew of a video taped interview with Chan on 22 September 2002. Neither that fact nor the tape had been disclosed; and we see Mr Adams saying:

"Again, a problem with non-disclosure, haven't got that. It's called for.

MR SCHAPEL: Your Honour, I don't know whether it exists. I've not been advised of any video. Notes
	have been supplied in relation ...

COURT: Well, just pause for a minute.

MR SCHAPEL: Yes.

COURT: We're going to come up for a break time, aren't we? Shall we let the witness go?

MR SCHAPEL: Right.

MR ADAMS: If your Honour pleases.

COURT: Would you like a break? The usual ...

MR ADAMS: A break? A break, your Honour?

COURT: Yes.

MR ADAMS: A break? Very well, your Honour.

COURT: You can have half and hour if you like.

MR ADAMS: Jolly Good, your Honour."

27. Then this from the Court:

"COURT: Now, Mr Schapel, if there's a video interview of an accomplice like this in a case like this that's

yet to be discussed, there's going to be trouble. Now, that you can't put your hand on your heart and say, 'No, it does not exist now' shouldn't be the case. In a case like this anything like an interview that concerns this witness is highly relevant and it's volatile and you must be in a position as the prosecutor, having spoken to those who instruct you, to say no such thing exists or if it does you will explain why it has not been disclosed. You can tell that, you know, you've lit the red tough paper. I want to know what the answer to this is and I want it swiftly and I want honest disclosure by those who sit behind you and if I think I'm not getting it, your side will suffer and that's only just. Those may be hard words spoken too soon but I speak them now so that the research is done diligently, right." (Appeal bundle 377)

28. After the break, Mr Schapel informed the court as follows:

"MR SCHAPEL: Your Honour, I'm instructed that there is no video, no video was taken as part of this

exercise. What has been disclosed is the existence of a verbal communication between this witness and the ICAC in which he briefly described what essentially he knew and what he was prepared to say but in a statement. Now, the account of what he said verbally has been already given to the defence and, following that, and indeed following the approval of the DOJ, a non-prejudicial witness statement was taken from this witness and they've had that forever.

COURT: They've got that, yes.

MR SCHAPEL: That's basically the size of it.

COURT: So in fact you're satisfied there's nothing about this day we're dealing with in evidence that hasn't
	been disclosed.

MR SCHAPEL: Yes, I'm satisfied of that.

COURT: Good, all right." (Appeal bundle 377-378)

So, the evidence resumed.

29. The information given to Mr Schapel was incorrect, for on 16 February there was disclosed to the defence the video taped interview of 22 September 2001 - whether the tape itself or merely its existence is not clear. That was accompanied by an eleven page summary in English of its contents. On 18 February, the defence team was supplied with the Chinese transcript (160 pages) of that interview; and the English translation was only made available on 20 February.

30. Our transcript of the evidence moves to 19 February. By this stage, it had been agreed that Mr Adams was to represent D1 as well as D2. There had obviously been some discussion between counsel about the impact of Mr McLanachan's withdrawal and the proposed course because at the very outset of the days' proceedings we see that Mr Schapel said:

"Your Honour, we're all agreed that we should proceed.

COURT: Excellent." (Appeal bundle, page 395)

Mr Adams then informed the witness that he, Mr Adams, now represented D1 and that he was going to ask questions on D1's behalf. This he did.

31. Shortly before the luncheon adjournment that day, there was a discussion between the Court and Mr Adams about a line of questioning and Mr Adams said that it was a matter which:

"we'll leave ... for submissions. Well, when we know what the story is about this discloseable material which we're being swamped with left, right and centre. There's another lot."

And then a question, no doubt addressed to Mr Schapel:

"When will we know about that?"

and Mr Schapel said that he hoped to have it resolved after a lunch time meeting with the Department of Justice. Then we see the following exchange which, for reasons which will become apparent, is relevant to the assertion that a fair trial was denied:

"MR ADAMS: Well, that's all right, yes. I just hope we can avoid the customary ... application.

COURT: What's that?

MR ADAMS: I'm sure your Honour knows. The ... application to stay on the basis of non-disclosure. No trial
	could be complete without one." (Appeal bundle 418)

32. On 19 February there was disclosed to those representing the applicants further material, and this has been listed for our information. It includes video interviews of other persons', a witness statement of Patrick Chan dated 22 April 2001 and of other persons', and several tapes of monitored telephone conversations including one between Patrick Chan and a Mr Wong of United Foundation dated 5 October 2000 and with a Mr Norton Law dated 19 October 2000. All this, plus summaries of other conversations and statements.

33. Shortly after resumption of the next day's hearing (20 February) Mr Adams asked for ten minutes to go through his notes, a request readily granted, and Mr Adams offered an aside: "One spends the evening working out a plan and then when you get here it's just absolute chaos the moment you arrive, you have pieces of paper coming left, right and centre," although it is not clear to which papers he was then referring.

"COURT: You have my sympathy. I won't come back in 10 minutes, you send for me when you're ready."

But when the court resumed 15 minutes later, Mr Adams asked for an adjournment to the afternoon:

"There is a lot more material and I understand the witness has brought some material. There's some other material which I've just been informed of which is relevant to that which we haven't got yet."

Then:

"COURT: So in other words, it's two-fold: ... you need some time because of the late disclosure and,
	secondly, because you've taken over D1 at a late stage and you want to see him.

MR ADAMS: That is right and I hope to be able to start again this afternoon and wrap up.

COURT: All right. In that case I'll adjourn till 2.30." (Appeal bundle 456).

The material which the witness had brought, and to whether reference is there made, was material which he had been asked in cross-examination by Mr Adams to bring.

34. At noon, the judge was called back:

"MR ADAMS: I've called your Honour back because about 10 minutes ago Mr Schapel revealed to me that
	there is yet more material which had not been disclosed before. In summary, it amounts to telephone tapping. We are told that the tapes no longer exist. We have a closely typed 17 page summary. This is on top of yesterday's and the day before's material and I would indicate to you that amongst yesterday's material is a 23 page statement from PW1.

...

MR ADAMS: I am exasperated ...

COURT: Yes, so am I.

MR ADAMS: ... to use understatement.

COURT: What do you want?

MR ADAMS: I'm not quite sure what I want. I did allude yesterday to a certain kind of application. The

answer of that of course always is, well, you get an adjournment to bone yourself up to be in a position but we are at the stage - and the ICAC should take this on board - we're at the stage where it is becoming very difficult to prepare fairly and properly and thoroughly to defend the two defendants that I have. And in particular with the release of information which I have got today, just by looking at the first page, there might be potential conflicts between the two defendants which I was not aware of earlier. I mean, I have to look into this very carefully now because you have the situation where they are in possession - the ICAC is in possession of material which shows that one particular accused is doing something which he shouldn't be doing - put it like that - which, if I was separately representing the other accused, I might bring out ...

COURT: Well, as I say, you've got my sympathy.

MR ADAMS: ... as a way of attacking the witness.

COURT: Yes, all right.

MR ADAMS: Pardon?

COURT: You've got my sympathy. You've got to ask for something though.

MR ADAMS: Well, initially I'm going to ask for until tomorrow morning. That's all I'm asking for.

COURT: You can certainly have that.

...

COURT: Mr Schapel, do you want to say anything?

MR SCHAPEL: Perhaps I'll just put this on record for the moment, your Honour. I have not detected any
	evidence of deliberate withholding of information.

COURT: Yes.

MR SCHAPEL: No. 1. No. 2, much of the material that's now been disclosed - and for obvious reasons I

don't want to go into the details of this - but much of the material that's been disclosed in the last 24 hours, to my mind much of it has arisen ex improviso - if I can use that expression - bearing in mind some of the issues that have been canvassed with this witness. And it's for that reason that a large amount of this material has been disclosed. The third thing - well, there is no third thing actually at this stage. But they're the two main things I'd like to place on the record at the moment. Nevertheless, it's regrettable but - the third thing is this actually, that I'm at the moment taking the view that to err on the side of caution is the better policy, and whilst I'm burdening the defence with a lot of this material, it isn't necessarily material which assist but I don't know, but that's the view I've taken at the moment.

And so there we are, your Honour. I obviously have no objection to whatever time is required to evaluate this material.

COURT: Thank you very much. And it's very difficult to ask you this question but are you now satisfied that every possible thing that should have been disclosed has been disclosed?

MR SCHAPEL: Your Honour, no. At the moment let me say this, that I don't know of any other material
	which I consider to be relevant or potentially helpful to the defence that I know of. Now, of course disclosure is an ongoing duty. There's plenty of authority for that. And I can't necessarily close the door on further material...

COURT: But you've done your very best to make sure that everything that you can by this stage that's been revealed has been revealed.

MR SCHAPEL: Yes, and as I say, I'm endeavouring to err, if anything, on the side of caution."
	(Appeal bundle 456-461)

The hearing was adjourned to 9.30am the following day. We have already stated that the English translation of the video interview of 22 September was disclosed this day, that is, 20 February. We have been provided with a list of other material disclosed including statements made by Patrick Chan on 23 and 29 January 2002 (which turned out to be the same in content).

35. The following day was Thursday 21 February. When Mr Adams resumed his submissions, he said: "I apologise if this is all over the place but partly as a result of different material and further instructions", and he carried straight on into questions to the witness, although a short while later he said to the witness:

"I'm sorry, Mr Chan, if I'm all over the place today and it doesn't follow in any order, it's the way that we've received material",

The cross-examination which immediately followed included questions about the contents of a statement dated 22 April 2001 (page 466 appeal bundle); the contents of a monitored telephone conversation on 5 October 2000 with Mr Wong of United Foundation (page 468); the contents of a monitored conversation with Mr Law (who was PW2 at trial) which had taken place on 19 October 2000 (page 468); and, extensively, about the contents of the video interview by the ICAC of the witness Patrick Chan which had taken place on 22 September 2000 (pages 469 to 471); and further about the contents of a statement by Chan dated 29 January 2002 (page 478 and 481) - all of which were documents or tapes which were part of the recently disclosed material.

36. Shortly before the mid-morning break on 21 February, Mr Adams said:

"Thank you for your patience, your Honour. I think I have finished. It's now 11.31. May I have a short morning break to confirm in writing from both my clients that there's nothing further they wish me to raise?" (Appeal bundle 483)

That confirmation was forthcoming, and Mr Adams told the Court that both applicants for whom he acted were "satisfied that I need not ask any more questions on their behalf." (page 484).

37. Mr Lok for the third applicant then commenced his cross-examination of the witness. In the course of that cross-examination, he asked the witness questions about the contents of a written statement taken after the videoed interview of 22 Sept 2000 and dated the same day.

38. On 22 February the witness, Patrick Chan, completed his evidence. That he was to make himself available for recall should that prove necessary emerges from the court's closing remarks of the day to him:

"Thank you, you can stand down. It may be that we need to ask you some more questions so please don't disappear but leave means of contacting you with the ICAC, please and after that thank you, you're free to go." (Appeal bundle 545)

39. Mr Chan was never recalled. No one asked that he should be. The court moved on to hear the evidence of other witnesses, including that of an ICAC officer who was in charge of the case. By 27 February, a full week after the disclosure of material which is now said to have been so vital as, by its late disclosure, to have caused an unfair trial, the second applicant was giving evidence. D1 and D3 did not. The trial concluded on 4 March.

(2) The Ground itself

40. The ground is put thus in the perfected grounds filed on behalf of D1:

"That there was a material irregularity at the trial viz the failure by the prosecution to disclose material relevant to the preparation and conduct of the 1st applicant's case in a timely manner; such irregularity prejudiced the 1st applicant who consequently, did not receive a fair trial." (Emphasis added).

41. The perfected grounds of appeal lodged on the second applicant's behalf assert that the late disclosure of material " ... prejudiced the fair trial of the applicant".

42. The grounds filed on behalf of the third applicant did not assert prejudice but merely that the failure to make timely disclosure constituted a material irregularity. Mr Lok, no doubt realising that it was difficult for him, as counsel who had appeared for the third applicant at trial and who had made no suggestion at trial that his client was prejudiced, to maintain the complaint, has abandoned this ground of appeal on behalf of his client.

(3) Analysis

43. This ground, against the procedural history which we have related, is a strange ground indeed to advance, for it involves no challenge to any decision of the court below. It is not said that the court below failed to make an order which it ought to have made, or that it made an order it ought not; or that the judge in the court below somehow failed in the exercise of a discretion. No such assertion could be made, because the judge was never asked to make any ruling in relation to, or as a consequence of, the late disclosure of documents. The judge granted such adjournments as were sought. He made it clear that he was entirely sympathetic with the predicament in which Mr Adams found himself by reason of taking over D1's representation at short notice, and with the irritation he felt at late disclosure. Mr Adams was accorded such latitude as he said he needed. Although Mr Adams mentioned the possibility of an application to stay the proceedings, no such application was made. It was not suggested to the court below, as it is now suggested to us, that the case should not proceed and that its continuation would render it an unfair trial. It was not suggested to the court below that counsel could not properly conduct such cross-examination as was necessary in his clients' interest.

44. It comes to this then, that an appellate court is now asked to make a determination not only which the court below was not asked to make, but the basis for which was not even advanced to the court below. In the absence of fresh evidence or of an allegation of professional incompetence, it is a bold argument that is now put forward. No suggestion of professional incompetence is made. Indeed it is expressly disavowed by counsel who now appear before us. We are not at all surprised by that disavowal, for Mr Adams is an experienced, able and conscientious practitioner; and the papers do not reveal anything which would begin to support such an allegation. On the contrary, they show that Mr Adams exerted himself to ensure that he was able properly to pursue cross-examination on behalf of both those whom ultimately he represented.

45. Nor is the appeal advanced on the footing, engaged most exceptionally, that despite the fact that a fair trial was possible, nonetheless the proceedings ought to have been stayed because the conduct of the prosecuting authority was such that "... irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued" (per L'Heureux-Dube J in R V O'Connor (1996) 130 DLR (4th) 235 at 277) to which reference is made at paragraph [182] of the Court of Final Appeal's recent decision in HKSAR v Lee Ming Tee and the Securities and Futures Commission FACC No 1 of 2003, 22 August 2003, as yet unreported.

46. The appeal is advanced on the footing, rather, that the trial was in fact unfair. The suggested prejudice which was relied upon was not particularised in the grounds of appeal, nor in the written submissions which were filed. What emerged from oral argument was that the unfairness suggested was that those acting for the applicants did not have a proper opportunity to prepare the case on behalf of their clients. In support of that contention, we are taken to Mr Adams' expressions of frustration, his apology to the witness on the morning of 21 February that he "was all over the place", and his comment that he had had but one night to study the extra papers; and there is added the contention that the very history of the proceedings demonstrates how difficult it must have been for counsel to determine his tactical approach without benefit of timely disclosure of the documents that were disclosed late. In addition, it is suggested that there was a witness who might have been called on the applicants' behalf, particularly for the second applicant, had his statement been disclosed earlier.

47. So the issue in this case is not whether a breach of the duty to disclose can render a trial unfair. That is a given. And the issue is not whether there was or was not a breach of the prosecutor's duty of disclosure. That breach is established and accepted. The issue is the effect of that breach on the fairness of the trial.

48. It is a remarkable but revealing fact that the material, the late disclosure of which is now said to have caused such singular problems, has not been placed before us. There is no schedule of its content; no analysis which reveals what it is suggested that is new that was not there before in another form; or what in the new or additional material could have demonstrated the witness to be less credible still, if only more time had been made available for preparation of cross-examination. All we have is a list of documents which were the subject of late disclosure, with the name of the witness and the date of the statement, or video interview, or summary, as the case may be. We know something about the content of two of these documents, namely, the video interview by the ICAC of Patrick Chan which was conducted on the day that he had agreed that he would provide assistance to the ICAC; and we know that in the statement of Mr Wong there is a denial that he offered a commission to D2. That apart, we know the length of the documents; and the arguments of counsel embodied a refrain, to which considerable emphasis was lent, that the length of the transcript of the interview of 22 September was 136 pages.

49. The result is an argument in a vacuum. Common sense and experience of advocacy dictates that whether counsel had sufficient time, whether a fair trial was prejudiced, depends on content and context. So, for example, the fact that a transcript of a video interview is 136 pages long is of itself largely meaningless; first, because those familiar with such transcripts know full well that they often bear spacing that is unusually wide and, secondly, because the trained eye of the practitioner versed in the case will soon know how much requires study, what is mere repetition of material found elsewhere, what is new, and what of the new is relevant.

50. We have no doubt but that the late disclosure caused Mr Adams inconvenience, which would have been avoided by timely disclosure. We shall assume that his study of the documents, and the consequent additional preparation absorbed his time at length and at a late hour. That said, he did not assert, to a court that was demonstrably sympathetic, that he needed more time, and he did not assert that he could not properly perform his function. The lack of such an assertion is to be viewed in the context of a practitioner who had himself threatened an application for a stay of proceedings because of late disclosure, an application which in the event he self-evidently adjudged unwarranted. And even after Mr Adams completed his cross-examination of the witness, the same witness remained in court for further cross-examination and for re-examination which did not end until the following afternoon, 22 February when the judge told the witness that he should render himself available for further questions should that prove necessary. That was said on a Friday, and the prosecution case continued until the following Tuesday afternoon. There was no suggestion, as far as we are aware, that anyone asked for the witness' return so that missed questions, overlooked passages, or newly discovered disparities, might be put to him.

51. But the hollowness of the argument goes well beyond the absence of an application or of complaint in the court below, for we see that Mr Adams pursued cross-examination of the witness about the very statements the late production of which is now said to have caused such difficulty. We see at page 466 of the appeal bundle that he was cross-examined about a 'late' statement dated 22 April 2001. We see at page 288 cross-examination about the content of a monitored conversation which he had with Mr Wong. And on the same page there is recorded cross-examination about the content of a taped conversation with Mr Law, PW2. Then (pages 469 to 471) he was cross-examined about the content of the video interview of 22 September 2000 which is the central feature of the present complaint (page 469 - 471); and a short while later there is cross-examination about the content of the statement dated 29 January 2002.

52. Mr Lok also cross-examined him about comments which he made to the ICAC on 22 September 2000, but the subject matter of this cross-examination is particularly interesting because it was not directed at the transcript of the video interview, but rather at that which is referred to as the witness' non-prejudicial written statement made that day (page 505 appeal bundle). This is a statement, we are told by Mr Zervos SC for the respondent, that was served on those acting for D1 as long ago as 3 July 2001, and on D2 and D3's advisers on 12 November 2001, which is why Mr Lok had it. We are also told by Mr Zervos, and this contention is not gainsaid by any counsel before us, that the information imparted during the video interview is reflected in the written statement 22 September. That may very well be one good reason why Mr Adams did not see himself as so disadvantaged by the video transcript as to make an application for further time or for a stay of proceedings.

53. Mr Zervos informs us too, although without seeking to excuse the failure of earlier disclosure, that when examining the true context in which the complaints are made, the applicants' advisers were served at an early stage with fourteen statements which had been made by the witness Patrick Chan, as well as with a list of unused material. In this context, we are all the more entitled to expect counsel to demonstrate what additional content there truly was in the late material. It is of no avail simply to say, as has been said here, that there was additional material which caused counsel extra work at a late stage.

54. Mr Westbrook SC for the second applicant has taken us to two specific suggested disadvantages which he says was visited upon his client by late disclosure. The first is that it was only on 19 February 2002, when the trial was well under way, that there was disclosed a record of interview dated 17 August 2000 of Mr Wong of United Foundation who was said by Patrick Chan in his evidence to have made a corrupt payment to D2. In this statement, or record of interview, Mr Wong denied making such a payment. It was a statement taken under caution. The suggestion now made is that the second applicant would have wished to call Mr Wong, but that given the lateness of the disclosure it was not possible to secure his attendance in time for the trial. In support of this contention there is before us an affirmation from a solicitor dated 2 October 2003. He is the solicitor who acted for the second applicant, and he says that after the statement of 17 August was disclosed he, the solicitor, tried to contact Mr Wong on his mobile telephone and at his office, but was told by someone at that office that Mr Wong was on the Mainland. The solicitor therefore told the second applicant to contact Wong, for the second applicant and Wong knew each other, but D2 could not locate him. We are not told what efforts D2 made.

55. We have to say that the efforts made by the solicitor, in so far as they are revealed in the affirmation, were not consonant with an arduous attempt to locate a prime witness. Nor are we told why a decision was made to proceed without bringing to the judge's attention the suggested difficulty or prejudice, for we see from the record of the proceedings that the existence of this statement was not even mentioned to the judge, let alone any application made for an adjournment. In any event, an adviser may have been prudent to leave well alone, for we see the following cross-examination of Patrick Chan by Mr Adams (at page 468 of the bundle), suggesting support in the monitored conversations for Chan's evidence about Wong:

"	Q.	... Now you had also on 5 October 2000 a monitored telephone conversation with ... Wong ... of United Foundation.
	A.	Right.
	Q.	We don't have the actual tape but all we, the defence, have is a summary and it appears that you said something to ... Wong about him - put it like this. You asked ... Wong to request consultation fee from Andy Chan, the 2nd accused.
	A.	I asked ... Wong to urge D2 to pay the consultation fee to me.
	Q.	And he agreed that he would chase D2.
	A.	Right."

56. The second suggested demonstrable disadvantage was put thus:

"By the time the video taped interview of PW1 was disclosed on or around 16th February 2002, D1's cross-examination of PW1 was at an end and D2's counsel's cross-examination had been underway for over 1 day. Thus inconsistencies and inaccuracies in his testimony could not have been properly prepared for or tested by D2's counsel. For example, the inconsistency of an earlier recollection by PW1 of the Sleeve-It payment being in cash at the entrance to the building of Goodyear's offices against his oral testimony where payment was made in D1's car (see: the disclosed interview of PW1 dated 22/9/00 at page 17 to the top of page 18 of the English translation)."

The example used is inapt, for the passages to which reference is made are from a written statement which the legal advisers for the second applicant had in their possession months before trial, and not from the video interview; and, further, because counsel for the third applicant used that very statement of 22 September in cross-examination to demonstrate a suggested inconsistency between it and the oral testimony of the witness.

The First Ground: Conclusion

57. We are surprised that counsel have seen fit to advance this ground of appeal. It is, quite simply, a bad ground. The fact that there has been a breach of duty by the prosecution authority is to be deprecated and the judge made clear at the end of the case with what profound disapproval the courts view such a failure. We are not in a position to determine what happened and whether further investigation would have demonstrated that prosecuting counsel's initial judgment that there had been no deliberate breach was justified. In any event, a proper system and a rigid culture by which disclosure is second nature in such an organization, as it should be, would preclude such mishaps, if mishap it was. Yet the fact that there has been a breach of prosecutorial duty does not clothe advisers for potential appellants with carte blanche to launch an appeal which is demonstrably not supportable, as if somehow the appellate court will feel obliged to be seen to balance its wrath against the prosecuting authority by entertaining a baseless appeal by the other side.

The Judge's Assessment of Chan's Evidence

(1) Generally

58. The theme of this ground, in which all applicants join, though each expresses his own ground, or grounds in support, in a slightly different way, is that the judge failed properly to assess the credit-worthiness of the witness Patrick Chan; that he failed to have regard to demonstrated inaccuracies and untruths in his testimony; and, in particular, that having acquitted the applicants of those charges which are called the entertainment charges, namely, Charges 1, 6 and 7, the judge failed to appreciate that the unreliability of Chan's evidence about credit card payments which led to those acquittals necessarily infected the evidence which underpinned the remaining charges.

59. The context in which these complaints are made is important, as it always is when there is an attack of this kind.

60. The story given by Patrick Chan, who was examined for seven days, covered an extensive canvass. It spanned the years 1994 to 2001. It spoke, for example, of the nature of 3M's work; the nature of the work available to applicators; of the activities involved in several different major building projects; who was vying for which subcontracts, how such contracts were in each instance secured by the applicators, and sometimes why they were not secured. He spoke about meetings within 3M; meetings with the applicants and himself and Tjong, in the context of a relationship when there must have been innumerable such meetings and discussions; the establishment of companies other than 3M in which he had an interest, and how they featured in the unfolding events; the difficulties with certain works on the Un Chau Estate which caused or aggravated the rift between D1 and D3; entertainment of the architects at clubs and restaurants; the coming on to the scene of D2 and of Sleeve-it; the disputes with D3 and how he caused Patrick Chan to lose his employment with 3M; his own arrest, and how he came to decide to provide evidence against the applicants; the monitoring of conversations, the dates of which, as with many other dates, he had difficulty in recollecting, even though they obviously took place. This far from exhaustive précis is the context against which the attacks on the witness' evidence and the judge's assessment of it are mounted.

61. The attack starts, in the grounds supplied on D2's behalf, and adopted by other counsel, with the suggestion that:

"The Judge went to considerable lengths in examining the motivation of the principal prosecution witness Chan Ka Ming when the real issue was whether his evidence was accurate and true and could be relied upon to convict the appellant. In concentrating upon the issue why PW1 would not in the circumstances have lied, the learned Judge paid insufficient regard to that evidence which clearly demonstrated that material parts of his testimony were inaccurate and/or untrue."

62. In our view, the judge's approach to credibility was infused with good sense and reality, devoid of artificial mantras, and of concentration on the minutiae of this or that discrepancy. He looked, as he himself intimated in his Reasons for Verdict (para 38), for "common sense signposts to truth". His analysis is cogent, and the reasons which he gives for accepting Chan's evidence in its essential features are wholly convincing. The criticism made about his references to motivation is without substance, for he was of course obliged to examine as he carefully did such motivation as the witness had for lying. Had the judge not done so, he would have been in error, and the applicants would quite rightly have added that to their grounds of appeal. In any event, the judge did not simply rely on the absence of motivation. He relied on the nature of the evidence itself, its extensive and realistic detail. We have read that evidence - almost four hundred pages of it was placed before us - and that evidence reads tellingly. The detail is vast and, as the judge has remarked, not that of a fabricator, and it contains much detail that was not necessary to secure a conviction, if that was the witness' objective, with concessions where the liar might not have conceded, and (with one wholly minor exception) readily providing full answers, sometimes offering additional information, and providing explanations which ring true. Of course there is advantage in seeing and hearing the witness, yet we can say that a reading of this material supports the judge's conviction of its inherent force, and it requires more than the odd disparity to displace the impression of overall truth. We agree with the judge's comment that:

"No witness can talk for seven and half days and not provide counsel with some material with which to attack him, but the fact was that counsel got very little change out of Patrick Chan."

That is certainly the impression with which one is left from a reading of the evidence and of cross-examination, though we do of course examine the points which it is now said were scored and to which it is alleged insufficient true attention was paid.

(2) The credit card evidence

63. The main specific evidential issue, so it emerged, the analysis of which counsel were anxious to underscore, was the evidence of Chan about credit card payments for entertaining D1 in order to secure favourable treatment for D3. At [4], [5] and [7] above we have summarised the essence of Chan's allegations which provided the foundation for Charges 1, 6 and 7; the entertainment charges. We see from that summary that the evidence was that Patrick Chan met D1 in May or June 1995 and D3 not much later, about a month or so. There came a suggestion, when is not certain, by D3 that they should entertain D1, and that when D3 was not present D3 would reimburse Patrick Chan. D1 was then still an employee of Rocco and the work in which D3 was interested was the Tai Po project.

64. The Fanling project came later and D3 wanted to repeat the same tactic of lavish entertainment, although in this instance corrupt payments were also allegedly agreed.

65. The problem with this evidence, so the judge found, was two fold:

(1)	that whereas the object of entertainment was said by Patrick Chan to retain the Tai Po work and that he, the applicant, usually paid for the entertainment with credit cards, the credit card evidence produced did not reveal entertainment expenses until June 1996 by which time the Tai Po project was over; and
(2)	that in so far as Chan had said that he also paid by credit cards for nightclubbing after 1997 in order to influence D1 in respect of the Fanling project, the credit card records showed expenditure on saunas but not on night clubs.

66. The argument is that although the judge used these lacunae to undermine the reliability of the witness' evidence in relation to Charges 1, 6 and 7, that unreliability infected the other charges as well, since it was D1's suggested dissatisfaction with D3's proposal to deduct those entertainment expenses from the bribes he was to receive, that led to D3's replacement by D2, and the consequential alleged corruption involving D2, D1 and Chan.

67. What the judge said on the issue of the credit card records was this:

"	43.	What was there standing against Patrick Chan? D2 gave evidence that directly contradicted him. For reasons I will give in due course I did not believe his evidence. The only real area of attack that made me pause had to do with his credit card records. He said that he entertained D1 at the expense of D3 in order to keep the Tai Po work. He said that they went to night clubs and saunas and that he usually paid with a credit card. The credit card evidence does not reveal such payments commencing until June 1996. By this time the Tai Po work was over. It was also the case that he said that that nightclubbing with him paying by credit card continued after September 1997 with a view to obtaining work at Fanling. The credit card records show entertainment at saunas in this time but not night clubs.
	44.	What was his explanation of this? The answer is that I do not know. I do not know because the contradiction was never explored with him by either side. I make no criticism in this regard in a case that so overflowed with detail. The significance of the records was not apparent to me until the stage of submissions. Indeed, up until that point it seemed as though the prosecution looked to the evidence for support. At the stage of writing these reasons I considered whether to invite the recall of the witness but decided against it. I judged that the defence case on the point was likely to be at its highest as it stood and justice did not demand so late a step which would have appeared to have had the flavour of allowing the prosecution to shore up against the point. Nonetheless there remains an element of the unexplained here: the point may have taken on more force if the witness had been faced directly with the matter or he may have been able to explain it. He was generally good at explaining.
	45.	Patrick Chan had certainly seen and was aware of the records. I have made the point that he was no fool already. He was quite ready to concede without the slightest demur that there would exist credit card records for occasions when D1 was not present and that he had only estimated the attribution of entries to times when D1 was there. When answering questions related to the credit card records he remained at ease and displayed a confidence that was generally a hallmark of his evidence. If Patrick Chan was falsely inventing the treating of D1 I have no doubt that he, from the outset, could have said that he paid cash and justified it by its greater anonymity.
	46.	So what is the effect of the point? It cast doubt on his accuracy for sure. The effect of that is that the prosecution lose the entertainment charges. The question of real importance was whether it caused sufficient damage to Patrick Chan's credibility so as to raise a reasonable doubt as to his good faith. That had to be judged against the whole of the evidence. I do not pretend the judging was easy, but in the end I had no doubt that his credibility survived the point. Such judgments require the balancing of the competing aspects in the evidence and an assessment of their competing aspects in the evidence and an assessment of their weight. I made sure that this point was well in the scales, but the other matters to which I refer in these reasons where in the scales as well. This point could not be divorced from the other evidence and decided in isolation. Leaving aside the matters which supported Patrick Chan, the point did not of itself make the witness incapable of belief. Having weighed the mater I was sure that Patrick Chan was a witness doing his best to tell me the truth.
	47.	This is an opportune moment to remember that these matters occurred long ago. Events commencing in 1995 were in issue. It was not just the dimming of memory but the difficulties of attribution of events to timescales that made me warn myself in the usual way, in respect of all the parties, of the effect that the passage of time can have in the context of criminal trials."

68. We see nothing in that analysis that can justly be criticized in the applicants' favour. Too much is made in argument before us about the impact of the documentary evidence of credit card payments. We note the following:

(1)	The lack of documentary support was not equated by the judge with an attempt by the witness to mislead the court and such a conclusion would indeed not necessarily follow from the absence of documentary support. All that the judge was saying in the passages to which we have referred was that the documentary evidence supported payments after the Tai Po project but not before, and did not show night club payments by credit card after September 1997, and that he was not prepared to accept the accuracy of the witness' evidence, about events so long ago, without such support.
(2)	The documentary evidence produced to the court disclosed transactions from July 1996, even though one of the relevant credit cards had been active since July 1995, and another from 1987. The third card was not issued until 1996. The absence of records for the period before 1996 has not been explained. That there were payments from July 1996 on Chan's credit cards for night clubs is beyond doubt. We cannot know what explanation Chan would have offered for the absence of records of credit card payments during the Tai Po period. He was never asked. The suggested disparities were never put to him. A number of explanations were canvassed by Mr Zervos before us as possibilities; but they are speculative although plausible. The judge has provided reasons for accepting nonetheless that these disparities did not encroach on the witness' overall credibility; and those reasons, we find, are sound.
(3)	It is to be remembered that the witness did not say that he paid for all the entertainment. He said that D3 paid when D3 was present. There was evidence that on occasions Norton Law or New Way paid, and that they were reimbursed by D3. There was evidence that Patrick Chan sometimes paid by cash. As to this, it was contended that payment by others or in cash was very limited since Chan's evidence was said to be that 90% of all bills were paid by his credit card, a fact self-evidently not supported by the credit card records. Yet upon a proper reading of his evidence it transpired that he was referring only to bills paid during the Tai Po project period.
(4)	There is cogent support for the testimony that D1 was unhappy with D3 about a deduction of entertainment expenses from corrupt commission or profit sharing, and of D3's awareness of that problem. It comes from the tapes of monitored conversations. An example is to be found at a point where Patrick Chan was speaking to D3 on 15 January 2001, where D3 talked of 2% to 3% being left [for D1] after "a deduction here and a deduction there." (page 291 appeal bundle). There is vital support in this conversation of that part of Chan's evidence which told the story of the shift from D3 to D2 as the man to be favoured for a slice of the corrupt advantages which were in D1's powers to distribute. The existence of these monitored tapes, and the content of these conversations, have largely been ignored by the applicants in the presentation of this appeal. Yet they are of great significance, for they are replete with the language of corruption, and they support Chan's evidence in material particulars. Chan's testimony of D3's involvement in corrupt entertainment of the architect was also supported by the evidence of Law. That D2 was the inheritor of D3's illicit mantle is given some support from the testimony of D2 himself, in that he spoke of a tight social group to which he and Patrick Chan and D1 and Tjong belonged, going to night clubs together and to saunas and enjoying the company of night club hostess from September 1998 to the end of October 1999 and stopping after that, that is, after the contracts for Tin Shui Wai and Fanling had been secured. D2 sought to place an innocent gloss on this conduct which, not surprisingly, the judge rejected. In any event, the rift between D1 and D3, and between Patrick Chan and D3 was not said to be limited to the problem of entertainment expenses. Patrick Chan lost his job because of D3. Moreover, there was evidence of a dispute with D3 about a project at the Un Chau Estate (page 221 appeal bundle) which seems to have contributed to the falling apart. In short, to assert, as counsel for the applicants have asserted, that the uncertainty about the accuracy of the entertainment evidence and its dates denudes of its credibility the testimony of a rift with D3 and his replacement in the scheme of corruption with D2, is to pick and chose, and to ignore the effect of the evidence as a whole.

(4) Inconsistencies and improbabilities

69. There is then paraded for our consideration an array of bits and pieces which are pointed to as undermining the credibility of Chan's testimony: inherent improbabilities, or inconsistencies, which the judge has missed or to which he has not paid sufficient regard. Whilst we have considered each, we have no intention of rehearsing each in this judgment. They are bits and pieces indeed, often not inconsistencies at all and not improbable, and we see nothing in any one of them to cause us to doubt the validity of the judge's approach or his assessment of the evidence.

70. So, to take an example at random, it is said that whereas Patrick Chan gave evidence to the effect that D2, D1 and he shared in a commission paid to D2 by Mr Wong, the absent witness to whom we have earlier referred at [54], the judge has failed to deal with or ignored or misunderstood the fact that that testimony conflicted with later testimony of the witness that 'no one told me the source [of that money]'. This may be the type of point to which the judge at paragraph 41 of his Reasons for Verdict described as trifling or explicable. There was no inconsistency at all. What the witness was clearly saying was that he was not told in terms whence the money came but that he had put two and two together and concluded that it came from Wong's company. In any event, there is no warrant for asserting that the judge has ignored such points. The judge concluded his Reasons for Verdict by saying that:

"It is impossible to mention all the points raised in a case like this. It is not the function of these reasons to do so. It does not mean that they have not received consideration." (paragraph 68).

The judge was quite correct. It would have been impossible, and was wholly unnecessary, to mention all the points taken.

(5) Charge 4

71. There is a specific attack on the conviction in relation to Charge 4. The evidence of Patrick Chan about it is said to be inherently incredible. Why offer $2m as a bribe to Tjong when that amounted to something like 10% of the contract sum when D3 had offered only 3%? This was, it is said, on any view an unnecessarily high offer to make. The answer is that that was precisely the point which Chan himself was seeking to make in his testimony, that it was too much and that he and D1 told D2 as much after the event. This testimony did not emerge as an exercise in afterthought during cross-examination, but, rather, it ran naturally as part of the story offered in evidence in chief. That evidence was that D2 told him and D1 that if the contract was awarded pursuant to the offer, he would first pay a sum of $500,000. There is support for this story in the monitored conversations between D1 and the witness (page 331 appeal bundle), as well as between D2 and the witness (page 279 bundle).

(6) D3 and Mr Chong

72. Finally there is a separate ground on behalf of D3 which is that the judge failed to consider, or adequately consider, the evidence of Mr Luke Chong who was one of the prosecution witnesses. Mr Chong was employed by D3 as a project manager from January 1998 to December 2000. He was tendered for cross-examination. In cross-examination, Mr Lok SC drew from this witness the fact that in May 1998 D3 told him that Patrick Chan had asked him, D3, for a rebate, in other words, for a corrupt payment and that he had rejected the request. We note that that evidence could only have been adduced to establish the truth of D3's report, and was inadmissible. Therefore, thus far, there can be no complaint.

73. Then he gave evidence which supported the contention that D3 had himself made a report to the ICAC, presumably about Patrick Chan, and that certain expenses at night clubs were paid for by D3 with ICAC's knowledge. It was common ground that D3 and Patrick Chan fell out, and the circumstances of that falling out seem to have been complex. The judge was aware of this falling out as he was of the fact that D3 had made a complaint about Patrick Chan to the ICAC, for he refers to it in terms [para 66 Reasons for Verdict]; and he was aware too, for again he refers to it, that Chan knew, when he decided to volunteer his services on behalf of the prosecution, that "a choice was to be made between him and D3 as to who should be the immunized witness and who should be a defendant "[para 29 Reasons for Verdict]. What motivated D3 to make his report we cannot say, not least because D3 did not give evidence. It hardly follows that because he, a person who had a grievance against Patrick Chan which led him to cause Chan's downfall with 3M, made a report to the ICAC, that that report was accurate, or that he himself was not engaged in corruption. Moreover the monitored conversation which Patrick Chan held with D3 supported the case against him; a fact to which the judge refers at paragraph [40] of the Reasons for Verdict.

CONVICTIONS: Conclusion

74. In the event, we find that there is nothing of merit in the grounds advanced, and the applications for leave to appeal against conviction are, in the case of each applicant, and each charge, dismissed.

SENTENCE

D1

75. In relation to D1 the judge said that:

(1)	He was a professional man and a public servant who used his position of trust corruptly to influence the award of subcontracts, and that a public servant in that position bears a greater degree of blame because of that breach of trust and because corruption cannot flourish without it. The sentence for such conduct had to assume a starting point of four years' imprisonment.
(2)	"You are already in prison serving a sentence of two years' imprisonment for accepting advantages in respect of entertainment."

76. In relation to Charge 2 (the conspiracy with D3 and Chan to secure payments to himself for aspects of the Fanling project), there was imposed a sentence of four years' imprisonment. In relation to Charge 3, which related to D1's conspiracy to accept advantages from D2 and Chan in relation to the same project, there was again imposed a sentence of four years' imprisonment; and the conspiracy in relation to the Tin Shui Wai project and D2, (which was Charge 3A) also drew a term of four years' imprisonment.

77. The judge ordered that the sentences for Charges 3 and 3A should run concurrently, but that 18 months in respect of Charge 2 should run consecutively and the balance concurrently with the sentences for the other two charges; a total therefore of five and a half years' imprisonment.

78. In relation to the sentence of two years' imprisonment to which we have referred, the judge said that:

"Allowing for remission you have served nearly half of your present sentence. In view of the 51/2 years I have imposed today, I shall order that sentence to commence now. In other words it is concurrent with your present sentence."

79. D1 was aged 36 years at the date of his convictions for these offences; D2 was aged 46; and D3 about 60 years.

80. The two year sentence to which the judge referred was imposed in respect of a conviction on 30 July 2001 by HH Judge Wright in the District Court for an offence of conspiracy to accept advantages. The advantages which were said to be the object of the conspiracy were meals, night club entertainment and hostess escort services for remaining favourably disposed to the main contractors at the Fanling project, and the period of the conspiracy was 1 December 1998 to 17 August 2000. The case came before the Court of Appeal in November 2002 and by a judgment handed down on 18 February 2003, the appeal was allowed and the conviction quashed, not on the basis of erroneous findings of facts, but on the basis that the objectives of the conspiracy as charged were either not advantages at all as defined by the Prevention of Bribery Ordinance, or had been erroneously categorised. Furthermore, allegations of accepting payment for hotel rooms and for ferry trips, which were advantages, were not reflected in the charges. The Court said that whilst it would normally have permitted the amendment of the charges and ordered a retrial, the applicant had, by the date of the appeal, already served his sentence, and the Court would not therefore make either such order. In so far as the charges were quashed because some of the objects of the conspiracy did not constitute advantages as defined, the Court nonetheless said that the evidence disclosed disgracefully inappropriate conduct on the part of the applicant: see HKSAR v Tang Hoi On Barry & another [2003] 3 HKC 123.

81. There are two main grounds which Mr Duncan advances on behalf of this applicant in relation to sentence, and each arises from the success of that appeal. He argues that the applicant had served seventh months of the sentence in respect of the conviction which was quashed, and that he ought therefore now receive credit for that in relation to the sentences imposed by HH Judge Line in the current case. We do not agree. It would be highly unusual for an applicant successfully to pray in aid time spent in custody in respect of another case when there was an acquittal or a successful appeal in respect of such a case. But it suffices for present purposes to point out that it was the very fact that the applicant had served the term imposed by HH Judge Wright that precluded the Court from ordering a retrial in that case, a case in which, as is obvious from the judgment of the Court of Appeal, the evidence was very strong. In other words, Mr Duncan now seeks a double advantage on behalf of his client; an advantage which would be wrong in principle to confer.

82. The second point depends for its merit on the approach adopted by the judge to the sentencing of the other two applicants. The judge said this:

"7. In relation to Charge 2, you were looking for a substantial bribe of 5 per cent of the contract price of over $5 million from D3. You, D3, were the subcontractor willing to pay. I take the point that it was not paid but that was not due to any change of heart. It merely reflected unattractive competition between contractors with bribes in their hands.

8. The prospect of a public servant lining his pockets with such money by abusing his position of trust and honest subcontractors being disadvantaged and losing out is intolerable. A sentence for such conduct cannot start at a term less than 4 years' imprisonment.

9. I judge that the public servant in this situation bears a greater degree of blame as his conduct involves a breach of public trust and this sort of corruption cannot flourish without that breach of trust. I have reflected this by passing a sentence of 3 1/2 years on you, D3. I have passed a like sentence on Charge 8. I have ordered it to run concurrently as it was all part and parcel of the bribery aimed at securing work at Fanling.

10. I have also got to deal with you, D3, for the general sweetener in Charge 9, but only as it related to the inflation of prices to your competitors. I have passed a sentence of 1 year.

11. In view of your previous good character and you are nearly 60, your poor mental health, the anxiety before this trial when you were waiting to see if you would be the immunized witness and escape prison, for the help you were willing to give, and remembering that you did not go into the witness-box and lie, I have ordered that to run concurrently. I judge that 3 1/2 years is the right total sentence for you." (pages 68 and 69 of the appeal bundle) (Emphasis added).

D3 does not appeal against that sentence.

83. In relation to D2 and D1 the judge said:

"13. D1 and D2, you with Patrick Chan formed the profit-sharing partnership, which depended for its life on the corrupt influence of D1, giving rise to Charges 3, 3A and 4. I take the same sentence of 4 years for you, D1, as I did before in relation to Charge 2 and that sentence I have ordered to be concurrent on Charges 3 and 3A.

14. The only question is how both sentences should relate to the sentence on Charge 2 and your present sentence. I obviously have to keep an eye on the totality. I have thus ordered an overlap between Charges 3 and 3A and 2 of 18 months. Allowing for remission you have served nearly half of your present sentence. In view of the 5 1/2 years I have imposed today, I shall order that sentence to commence now. In other words, it is concurrent with your present sentence.

15. I have read with care the papers that Mr Adams gave me. This was different offending. There would normally be a consecutive sentence but if I did that the totality would be too great.

16. D2, I make the same distinction between you and D1 as I did with D3. Thus, there are sentences of 3 1/2 years on each of these three charges. However, I have judged that your involvement was marginally greater than that of D3. You actually made the offer of $2 million in Charge 4. I therefore judge that a total of 4 years' imprisonment with your previous good character is the correct total. I have achieved that by ordering that 6 months of Charge 4 run consecutively to the other sentences." (Pages 69 and 70 appeal bundle) (Emphasis added).

84. It is said that there results an unjustifiable distinction between the sentence of D1 and that of the others, in that the judge treated the others as persons of good character but did not, nor could he, with the information then before him, treat the applicant as a person of good character; yet given what has since transpired, namely the quashing of the conviction in D1's earlier case, that distinction is no longer valid.

85. As a matter of policy in a corruption case, the fact that a person has not previously offended will normally count for little; still less when, as in this case, the offences have continued over a prolonged period; and even less in the case of a corruption offence which involves a breach of trust by a public servant, because that offender is unlikely to have breached that position of trust before. In any event, given the nature of D1's behaviour reflected by those facts of the previous case which did not amount to criminal offences (see [80] above), it would hardly be appropriate to refer to this applicant as a person of good character prior to the events underlying the present case. All that could be said on his behalf is that he had not previously been convicted of criminal offences. It is not possible to say to what extent the judge gave credit for the absence of previous convictions in each case and we think that it is a factor that ought to have carried little weight indeed, and none whatsoever in the case of D1. Yet it is difficult to conclude other than that some discount was, generously in our view, in fact given in the case of D3 and D2 which the judge might well have given to D1 but for the fact of the conviction which has now been overturned. In these somewhat exceptional circumstances, we have decided to reduce the overall sentence imposed on D1 by a period of four months. We see nothing in the other grounds of appeal against sentence in his case. His proved conduct reveals the behaviour of a thoroughly dishonest man, whose whole way of life, for years, was steeped in corruption - first when he was employed in the private sector, and then as a public sector employee. His role can be distinguished further from that of the other applicants in that he acted corruptly in respect of all the projects with which the case was concerned, and in separate periods.

86. For the limited reason we have given, and we emphasise just how exceptional are the circumstances, we allow his application for leave to appeal against sentence, treat the hearing of the application as the appeal, and set aside only that part of the judge's order which ordered 18 months of the sentence on Charge 2 to run consecutively to that passed on the other charges, and order instead that a term of 14 months run consecutively, the remainder to run concurrently. This makes a total in his case of five years and two months' imprisonment.

D2

87. It is said in the case of D2 that his sentence was manifestly excessive. In his argument, Mr Westbrook SC drew our attention to the fact that Charges 3 and 4 arose in relation to the same object of bribery, namely, the attempt to bribe Tjong to show favours. It is said that it was wrong in principle therefore for the judge to order that six months of the sentence imposed in relation to Charge 4 should run consecutively to the other sentences.

88. One has to look at the reality of what the judge was doing. He said that a total of four years' imprisonment was merited in the case of D2. With that we agree. What the judge then did was to express the device by which he was going to achieve that objective. It would have been more appropriate to order that part of the sentence imposed on Charge 9 should run consecutively to that imposed in relation to Charges 3A and 4. But the result would have been the same. We do not propose to tinker in this way to achieve the same objective. The application by D2 for leave to appeal against sentence is therefore dismissed.