HKSAR v. LO CHI MING

[English Translation – 英譯本]

HCMA 486/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 486 OF 2005

(ON APPEAL FROM KTCC NO. 7783 OF 2004)

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BETWEEN

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REASONS FOR JUDGMENT

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1. The Appellant was convicted after trial on three counts of “fraud”, contrary to section 16A of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong, and one count of “being an agent, using a document with intent to deceive his principal”, contrary to sections 9(3) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 of the Laws of Hong Kong.  The Appellant now appeals against conviction.

The charges

2. The three charges of “fraud” were Charges (1) to (3) in the charge sheet, and the remaining charge of “being an agent, using a document with intent to deceive his principal” was Charge (5).  Similar to Charge (5) was Charge (4), of which the Appellant was acquitted.

3. The following are the particulars of Charges (1) to (5) (based on the final revised version prior to the close of the prosecution case on 8 April 2005):

“Charge (1)

Between 17 June 2002 and 25 June 2002 and in Hong Kong, Lo Chi Ming did by deceit, that is, by not disclosing to Water Conservancy Engineering Co Ltd (‘WCE’) that the said Lo Chi Ming was the sole proprietor of Mei Chi Engineering Company (‘Mei Chi’), and by falsely representing to WCE that Mr Victor LAM was the person in charge of Mei Chi Engineering Co Ltd (‘Co Ltd’), when in fact Co Ltd did not exist but was used by the said Lo Chi Ming to carry out transactions with WCE, with the intention to deceive and induce WCE to do certain acts, that is to promise to provide main electrical switchboard annual inspection services at Ho Ming Court and Hong Nga Court to Co Ltd, thereby resulting in a benefit to the said Lo Chi Ming or resulting in prejudice or a substantial risk of prejudice to WCE.

Charge (2)

Between 24 June 2002 and 9 July 2002 and in Hong Kong, Lo Chi Ming did by deceit, that is, by not disclosing to Water Conservancy Engineering Co Ltd (‘WCE’) that the said Lo Chi Ming was the sole proprietor of Mei Chi Engineering Company (‘Mei Chi’), and by falsely representing to WCE that Mr Victor LAM was the person in charge of Mei Chi Engineering Co Ltd (‘Co Ltd’), when in fact Co Ltd did not exist but was used by the said Lo Chi Ming to carry out transactions with WCE, with the intention to deceive and induce WCE to do certain acts, that is to promise to provide main electrical switchboard annual inspection services at Hong Sing Gardens to Co Ltd, thereby resulting in a benefit to the said Lo Chi Ming or resulting in prejudice or a substantial risk of prejudice to WCE.

Charge (3)

Between 4 July 2002 and 12 August 2002 and in Hong Kong, Lo Chi Ming did by deceit, that is, by not disclosing to Water Conservancy Engineering Co Ltd (‘WCE’) that the said Lo Chi Ming was the sole proprietor of Mei Chi Engineering Company (‘Mei Chi’), and by falsely representing to WCE that Mr Victor LAM was the person in charge of Mei Chi Engineering Co Ltd (‘Co Ltd’), when in fact Co Ltd did not exist but was used by the said Lo Chi Ming to carry out transactions with WCE, with the intention to deceive and induce WCE to do certain acts, that is to promise to replace the 200A 4 point air change switch at King Wai Industrial Centre, thereby resulting in a benefit to the said Lo Chi Ming or resulting in prejudice or a substantial risk of prejudice to WCE.

Charge (4)

Being an agent, namely Electrical Engineering Manager of Water Conservancy Engineering Co Ltd (‘WCE’), Lo Chi Ming did, on or about 4 July 2004 and in Hong Kong, intend to deceive his principal by using a document, namely a quotation bearing reference number ‘HWP02Q519’, in respect of which WCE was interested, and which contained a statement which was false, erroneous or defective in a material particular (namely that the project was related to the replacement of a 200A 4 point air change switch), and which to his knowledge was intended to mislead WCE.

Charge (5)

Being an agent, namely Electrical Engineering Manager of Water Conservancy Engineering Co Ltd (‘WCE’), Lo Chi Ming did, on or about 9 August 2004 and in Hong Kong, intend to deceive his principal by using a document, namely a quotation bearing reference number ‘HWP02Q519’, in respect of which WCE was interested, and which contained a statement which was false, erroneous or defective in a material particular (namely the removal from the quotation of the item for the dismantling of the existing 200A 4 point air change switch), and which to his knowledge was intended to mislead WCE.”

Facts of the case

4. Set out below is the prosecution’s written opening submission at trial, from which the particulars of each of the charges are apparent:

[1.]       The Defendant joined Water Conservancy Engineering Co Ltd (‘WCE’) on 9 October 1995 as Assistant Engineer.  Subsequently, on 1 May 1996, 1 August 1999 and 1 June 2001 he was promoted to Engineer, Chief Engineer and Electrical Engineering Manager respectively.  Eventually, the Defendant resigned from WCE on 25 August 2002.  At the material time, namely the period from 17 June 2002 to 12 August 2002, the Defendant’s duties included competing for engineering orders, producing quotations, calculating project costs, allocating work and carrying out on-site supervision.

2.         In the course of employment by WCE, the Defendant secretly set up Mei Chi Engineering Co (‘Mei Chi’), which was solely owned by him and which became a direct competitor of WCE.

Charge 1

3.         On a certain day in early June 2002, the Defendant received on behalf of Mei Chi two orders from Pak Tat Electrical Engineering Co Ltd (‘Pak Tat’).  Those orders were for providing main electrical switchboards annual inspection services to Ho Ming Court and Hong Nga Court, for an amount of $19,630.

4.         On or about 17 June 2002, the Defendant, without disclosing to WCE that he was the sole proprietor of Mei Chi, and by falsely representing to WCE that Victor LAM was the person in charge of Mei Chi, supplied to Mei Chi a quotation for the said project on behalf of WCE, and the quoted amount was merely $9,600.  Subsequently, on or about 24 June 2002, the Defendant assigned the said project to WCE on behalf of Mei Chi.  As a result, Mei Chi made a profit on the price difference, that is $10,030.

Charge 2

5.         On a certain day in mid June 2002, the Defendant received on behalf of Mei Chi another order from Pak Tat.  That order was for providing main electrical switchboards annual inspection service to Hong Sing Gardens, for an amount of $31,340.

6.         On or about 24 June 2002, the Defendant, without disclosing to WCE that he was the sole proprietor of Mei Chi, and by falsely representing to WCE that Victor LAM was the person in charge of Mei Chi, supplied to Mei Chi a quotation for the said project on behalf of WCE, and the quoted amount was merely $19,000.  Subsequently, on or about 8 July 2002, the Defendant assigned the said project to WCE on behalf of Mei Chi.  As a result, Mei Chi made a profit on the price difference, that is $12,340.

Charges 3, 4 and 5

7.         On or about 12 June 2002, the Defendant, on behalf of Mei Chi, supplied to Mei Sun Technology Co Ltd (‘Mei Sun’) a quotation for the dismantling and replacement of a 300A 4 point air change switch at King Wai Industrial Centre.  The quoted price was $11,000.  On or about 4 July 2002, the Defendant, without disclosing to WCE that he was the sole proprietor of Mei Chi, and by falsely representing to WCE that Victor LAM was the person in charge of Mei Chi, supplied to Mei Chi a quotation for the said project on behalf of WCE, and the quoted amount was merely $9,500.  In order to rationalize the low price quoted by WCE, the Defendant falsely stated in the quotation that the air change switch was a 200A model, which was cheaper than a 300A model.

8.         On a certain day in early August 2002, Mei Sun assigned the said project to Mei Chi, with the price increased from $11,000 to $15,000, but with an additional request that Mei Chi worked at night.  Subsequently, on or about 9 August 2002, the Defendant assigned the said project to WCE on behalf of Mei Chi, but removed from the confirmed order issued by Mei Chi the item for dismantling the air change switch, as a result of which the price was further reduced from $9,500 to $7,000.  However, when the Defendant subsequently supervised the said project on behalf of WCE, he instructed the electrical workers of WCE to carry out the said dismantling work, and did not seek payment by Mei Chi of the relevant fees.  As a consequence, WCE lost $82.62.

9.         The persons in charge of Pak Tak and Mei Sun became acquainted with the Defendant when they conducted business transactions with WCE.  In fact, the three projects mentioned above could have been obtained directly by WCE through tendering without the intervention of Mei Chi.

10.       At all material times, the Defendant failed to disclose to WCE that he was the sole proprietor of Mei Chi.  Had WCE known that the Defendant had a financial interest in Mei Chi, it would not have allowed the Defendant to handle any business which involved Mei Chi.

11.       On 30 April 2004, the Defendant was arrested by ICAC officers.”

5. As stated in paragraph 3 above, the particulars of charge set out under that paragraph had been revised and that was after the opening submission of the prosecution.  Therefore, the statement in the submission that Victor Lam was falsely represented to be the person in charge of Mei Chi Engineering Co Ltd was inaccurate.  The final stance of the prosecution should have been based on the final version of the particulars of charge, that is, that Victor Lam was falsely represented to be the person in charge of a non-existent company named Mei Chi Engineering Co. Ltd. (In the Magistrate’s written Judgment, Mei Chi Engineering Co Ltd was named “Mei Chi Engineering Co Ltd” so that it could be distinguished from the real “Mei Chi Engineering”.)

Proceedings and judgment at trial

6. The prosecution called 9 witnesses, of whom the more crucial ones were the owner of Water Conservancy Engineering (hereinafter “WCE”) (PW1), an electrical workman of WCE (PW2), an administrative officer of WCE (PW3), the owner of Pak Tat Engineering (PW4), another electrical workman of WCE (PW5), Victor Lam himself (PW6), and the person in charge of Mei Sun Technology (PW7).  PW8 and PW9 were investigating officers of ICAC.  Their testimony was mainly about the cautioned interviews with the Appellant, but the relevant records of interview were, in the end, all held to be inadmissible.  On the other hand, the Appellant neither testified nor called any witness.

7. The Magistrate convicted the Appellant on four of the five charges.  On Charges (1) to (3), the reasons for verdict were as follows (see the corresponding paragraphs in the Magistrate’s written judgment for the original passages):

“141.   The fraud that the Defendant allegedly practised included a failure to disclose to WCE that he was the sole owner of Mei Chi Engineering.  I rule that the Defendant had not made such disclosure.  This I would call ‘inaction’ on the part of the Defendant.   I do not regard this as an omission on his part.

…

148.  On the other hand, however, I hold that Mei Chi Engineering Co Ltd is in fact non-existent.  The statement made by the Defendant to WCE that Mei Chi Engineering Co Ltd did exist was false.  I hold that the Defendant knew this statement to be false and that he had used this false statement to deceive WCE, which was in fact deceived into promising to provide services to [Mei Chi].  I hold that the Defendant had intentionally done that.  I also hold that the Defendant had made use of Mei Chi Engineering Co Ltd to carry on transactions with WCE.

149.  Although the particulars of charge allege that some of the words or conduct constituted the Defendant’s act of deceit, I do not think they amounted to deceit (by this I refer to the Defendant’s failure to disclose that he was the sole owner of Mei Chi Engineering and his statement that Victor Lam was the person in charge).  However, I hold that other words or conduct alleged in the particulars of charge did constitute the Defendant’s act of deceit (by this I refer to the Defendant’s statement that Mei Chi Engineering Co Ltd was an existing company when in fact it never existed, and the use by the Defendant of this company to carry out transactions with WCE).  Under these circumstances, I hold that prosecution has proved the element of ‘deceit’ in the offence.

150.     I have considered the facts according to the Ghosh guidelines.  I hold that, both from an objective point of view and from the Defendant’s own subjective point of view, what the Defendant had done regarding the first, second and third projects (including his action and inaction) was dishonest.

151.     I hold that the abovementioned acts of the Defendant caused WCE to take some unwarranted risks.  The Defendant induced WCE to promise to provide services to Mei Chi Engineering Co Ltd for the first, second and third projects.  The Defendant was the sole owner of Mei Chi Engineering.  He was also Electrical Engineering Manager of WCE.  When Mei Chi Engineering was considering whether to assign each of the projects to WCE, the Defendant had good cause for reducing the price to an unreasonable level to his own advantage.  When the Defendant considered, as Electrical Engineering Manger of WCE, whether to take up the project, he had good cause to recommend WCE to accept the project at an unreasonably low price.  Had the Defendant disclosed to PW1 that he was the sole owner of Mei Chi Engineering and that WCE was in fact providing services to Mei Chi Engineering, it was likely that WCE would not provide the services or that, although PW1 would still let WCE accept the project, PW1 would certainly take appropriate measures when preparing the quotation for the project and conducting post-contract follow-up on the project and would also adopt more stringent supervisory measures to reduce risks and eradicate any possibility of the Defendant cheating.  By providing services to a non-existent Mei Chi Engineering Co Ltd without first receiving payment, WCE might not be able to seek recovery of the remuneration for the project from this non-existent company on the basis of the law of contract.

152.     I hold that under such circumstances, the risks taken up by WCE (i.e. the prejudice suffered) related to WCE’s ‘financial benefits’ and fall within the meaning of ‘prejudice’ under section 16A of the Theft Ordinance.”

8. The Magistrate’s reasons for convicting the Appellant on Charge (5) are set out below:

“172.    The misleading document referred to in the particulars of Charge (5) is WCE’s Confirmation Order in relation to the quotation for third project (Exhibit P60).

173.  I hold that WCE had an interest in this Confirmation Order.

174.  I hold that the Defendant had used this document.  The only reasonable inference is that the document was prepared on the Defendant’s instructions.

175.  I hold that the Defendant was at that time WCE’s agent and that WCE was his principal.

176.  I hold that the Defendant had removed item 1 of the third project (i.e. the dismantling of the old 200A air change switch from King Wai Industrial Building) from the Confirmation Order, and that the Defendant knew at that time that WCE would in fact do or had done this item of work for Mei Chi Engineering.  I am certain that one of these two situations must exist.

177.  I hold that this false, erroneous or defective statement was a statement on a material particular, and that the Defendant knew at that time that the statement was false, erroneous or defective.

178.  I have not overlooked the fact that the Confirmation Order was issued by Mei Chi Engineering to WCE.  When the Defendant did that, he was acting as the owner of Mei Chi Engineering.  But at the same time, he was also an employee and agent of WCE.  I hold that the Defendant has used this document as an agent of WCE.  Even if this was not the case, I still hold that when the Defendant used this document, he was acting as an agent of WCE.

179.  I hold that the Defendant knew that this document, which contained a statement false, erroneous or defective in a material particular, was used with the intention of misleading WCE.”

9. As for Charge (4), the Magistrate held, for the reason set out below, that the prosecution had not met the standard of proof:

“170. Can I say for sure that the Defendant knew at the time that the third project actually required a 300A air change switch?  I hold that PW7 had requested the Defendant to provide a quotation for the third project for providing 300A air change switches.  I hold that Mei Chi Engineering had issued to Mei Sun Technology a quotation dated 12 June 2002 (Exhibit P48), on which was written the words ‘300A air change switch’.  However, I cannot rule out a reasonable possibility that the Defendant at that time considered that the air change switch required by Mei Sun Technology was a 300A type according to AC1 standards, and not a 300A type according to AC3 standards.  Nor can I rule out the reasonable possibility that, when the Defendant induced WCE to submit a quotation to Mei Chi Engineering Co Ltd for the third project, he had used AC3 standards for calculating the function of the air change switch.  In other words, the two air change switches had, in effect, the same function.  In that case, I cannot be sure whether this was a false, erroneous or defective statement.   I cannot be sure that the Defendant knowingly made a false, erroneous or defective statement.”

The present appeal

10. The Appellant has raised 11 grounds of appeal against his conviction on Charges (1) to (3).

11. Ground (1) states:

“The Magistrate erred in ruling that the statement that Mei Chi Engineering did not exist was a negative averment.”

12. This can be seen from the Magistrate’s written judgment, where the statements in question appear at the beginning of a rather significant section.  The same problem applied to Charges (1) to (3):

“Analysis and assessment of the evidence and ruling on certain facts

106.  In the Charge Sheet, the prosecution alleged that Mei Chi Engineering Co Ltd in fact does not exist.  This is a kind of negative averment, and it is not necessary for the prosecution to adduce evidence to prove this point.  In the present case, there is no evidence to prove that Mei Chi Engineering Co Ltd does, more likely than not, exist.  I hold that Mei Chi Engineering Co Ltd in fact does not exist.  I hold that WCE had in fact provided services to Mei Chi Engineering regarding the first, second and third projects.”

13. As the Appellant points out, this view of the Magistrate’s constituted an error in law.

14. Section 94A of the Criminal Procedure Ordinance provides as follows:

“94A.     Negative averments

(1)   It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2)   For the avoidance of doubt it is hereby declared that in criminal proceedings —

(a)    it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and

(b)    the burden of proving the same as lies on the person seeking to avail himself thereof.

(3)    This section applies to criminal proceedings in the District Court or a magistrate’s court.

(4)    The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.”

15. Case law has already specified the circumstances under which section 94A takes effect.  For example, in HKSAR v. Ng Sui Hong [1998] 2 HKLRD 57, the third holding states:

“The exception to the rule relating to the burden of proof for negative averments under s.94A of the Criminal Procedure Ordinance (Cap.221) was limited to offences arising from enactments which prohibited the doing of an act, subject to provisos or exemptions.  Whenever the prosecution sought to rely on this exception, the court had to construe the enactment under which the charge was laid.  If the true construction was that the enactment prohibited the doing of acts subject to such provisos, then it could rely on the exception (Bruce & McCoy, Criminal Evidence in Hong Kong, paras.55-100; Archbold, Criminal Pleading Evidence and Practice, paras.4-388, 4-389; R v Edwards [1975] QB 27 followed).  (See p.61G-I.)”

Similarly, the first holding in HKSAR v. Cheng Chung Ming [2001] 1 HKLRD 395 states:

“The exception to the rule on the burden of proof for negative averments under s.94A of the Criminal Procedure Ordinance (Cap.221) was limited to offences arising under enactments which prohibited the doing of an act subject to provisos and exemptions.  Whenever the prosecution sought to rely on this exception, the court had to construe the enactment under which the charge was laid.  If the true construction was that it prohibited the doing of acts subject to such provisos, then it could rely on the exception (R v Edwards [1975] QB 27, R v Lam Yu Tung [1958] HKLR 140, R v Wong Sang [1964] HKLR 883 followed).  (See p.399A-D.)”

16. It is abundantly clear that the issue of whether Mei Chi Engineering Co Ltd was a sham does not fall within the ambit of section 94A.  On the contrary, it should not be difficult for the prosecution to prove that this company did not exist, but it had apparently overlooked this issue in the course of making repeated amendments to the particulars of charge.

17. In any event, as a result of misinterpreting section 94A, the Magistrate had wrongly imposed on the Appellant the burden of proving that Mei Chi Engineering Co Ltd did in fact exist.  The non-existence of this company also went to the element of “deceit” which the Magistrate took into account in convicting the Appellant on Charges (1) and (3).

18. This being the case, the Appellant’s convictions on these three charges cannot be sustained, and it is not necessary for me to consider the other grounds of appeal.  The Respondent has not objected to this.

19. I now turn to Charge (5).

20. Charge (5) originates from section 9(3) of the Prevention of Bribery Ordinance, which provides as follows:

“9.  Corrupt transactions with agents

   (1)      …

   (2)      …

   (3)   Any agent who, with intent to deceive his principal, uses any receipt, account or other document —

(a)         in respect of which the principal is interested; and

(b)        which contains any statement which is false or erroneous or defective in any material particular; and

(c)         which to his knowledge is intended to mislead the principal,

shall be guilty of an offence.”

21. Regarding this Charge, the Appellant has put forward five interrelated grounds of appeal, including whether the accused had to be dishonest and whether the Appellant could be proved to have “intended to deceive”, etc, and has made various submissions in these respects.

22. However, I do not think this is the main consideration in determining whether the Appellant’s conviction on Charge (5) is safe.  In my view, it is Exhibit P60, i.e. the “Confirmation Order” by WCE, that has to be closely examined.

23. On P60, the Appellant and the Respondent are in agreement over the following matters: (1) the quotation was first issued by WCE to Mei Chi Engineering Co Ltd (note: here the Magistrate probably made a clerical error in stating that it was “Mei Chi Engineering”); (2) when it was issued, the quotation included two items, i.e. dismantling and replacing a new 200A 4 point air change switch; (3) the deletions of and changes to the dismantling item, the new price for replacing the air change switch and the total price for the whole quotation were only seen from the copy that Mei Chi Engineering Co Ltd faxed back; (4) the reason for the alterations was clearly to take out the dismantling work and reduce the price therefor, and also to reduce the charges for replacing the switch so that the total price for the quotation would be reduced; (5) the alterations were obviously made by Mei Chi Engineering Co Ltd, as Mei Chi Engineering Co Ltd had added its chop by the side of the amendments; (6) the co-called “Confirmation Order” was issued by WCE only after it received the amended fax copy from Mei Chi Engineering Co Ltd and considered it acceptable.

24. In other words, the amendments to the quotation represented an attempt by Mei Chi Engineering Co Ltd to negotiate the price, and whether WCE accepted the amendments is another question.  This is clear from what PW3, an administrative officer of WCE, said during examination-in-chief:

“Q:    Please take a look at this confirm order.  When you received the confirm order, was the first item, i.e. ‘dismantle existing 200A’, that item – was it already crossed out?

A:      Yes, when I received that 60 – that P60 document, [the item] had been crossed out.

Q:     Then at that time – you said after you received P60, you would go to the cabinet and retrieve the previous quotations such as P54, 56, and you – and this P58, is that correct?

A:      Yes.

Q:     These three documents.  I want to ask you, did you at that time notice whether this deleted item had appeared in the previous documents, i.e. those quotations?

A:      When I received P60 – normally, if a customer has made some amendments, or if there are some deletions when the confirm order is faxed back, I will ask the [engineer] or manager ‘do you know that the customer has made amendments?’

Q:     So did you ask anyone in this case?

A:      I would ask Mr Lo, I would ask them if they knew there were amendments, and they would normally if …

Q:     Do not talk about ‘them’, we are talking about Mr Lo.

A:      Mr Lo, so they would normally answer like “ok, got it” and Mr Lo would say “got it”, yes.

…

Q:     Regarding this project, do you recall whether you asked Mr Lo upon receiving P60?

A:      For this one, I would follow the general rule, I would definitely ask, yes, I would definitely ask.  And then I would – but I would simply ask ‘Do you know there are amendments?’ That is, I would ask Mr Lo if he knew it had been amended. Then he – Mr Lo would – they would generally answer ‘yes, I know’, and when I got their answer, which was a very ordinary answer, I would go to the file cabinet and retrieve 54, 56, 58 in order to prepare for the ensuing matters.

…

Q:     About this one – this confirm order, not only was an item deleted, you see, even the price had been changed.

A:      Yes.

Q:     So would you do anything about this, in such a case?

A:      Because I have – because usually when some of the quotations are sent out, a lot of customers will change the price, so even if I see it, I will not consider it something very special, I only ask them if they know there have been changes, and I will not say – sometimes we are a bit lenient in submitting quotations, if the customer asks for a quotation, then our [engineer] or manager will accept.”

25. If this be the case, I cannot help asking: for the purpose of section 9(3) of the Prevention of Bribery Ordinance, where is the “false, erroneous or defective statement” in this Confirmation Order Exhibit P60?  It should also be noted that the dismantling work could be completed within a few minutes and that it was impossible to install a new switch without dismantling the old one. 

26. It is true that, by submitting a quotation on behalf of WCE on the one hand and negotiating the price for Mei Chi Engineering Co Ltd on the other hand, which resulted in the former accepting a lower price for completing the relevant work, the Appellant might have committed an act of deceit, which was the subject matter of Charge (3).  However, this does not mean that P60 itself contained anything false or erroneous.

27. Upon repeated questioning by me, the Respondent had to concede that there was nothing wrong with P60 itself.

28. This being the case, the Appellant’s conviction on Charge (5) cannot be sustained either.

Judgment

29. The Appellant’s appeal is allowed.  All the convictions are quashed and sentences set aside.