HKSAR v. TSANG KWOK WING AND ANOTHER

CACC 406/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 406 OF 2006

(ON APPEAL FROM DCCC NO. 68 of 2006)

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J U D G M E N T

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Stuart-Moore, (giving the judgment of the Court):

Background

1.  These are applications by Tsang Kwok-wing (D1) and Lee Kwok-cheong (D2) for leave to appeal against conviction.

2.  On 8 September 2006, Deputy District Judge A Wong convicted D1 on five charges of fraud contrary to section 16A of the Theft Ordinance, Cap. 210 (charges 3 to 7).  D2 was convicted on two charges of fraud (charges 1 and 2).  Two others also faced charges of fraud, namely, Wong Ka-kuen (D3) in charges 3 and 4 and Tsang Siu-yin (D4) in charges 5 and 6.  In each of the seven charges on the charge sheet, Lo Shing-kay (Lo), who has not been apprehended, was named as an accomplice.  A sixth participant Chu Kwan-ying (Chu), alleged to have been involved in the 7^th charge only, died on 5 April 2002.

3.  The criminal conduct alleged in the charges was the same throughout during a 3-year period between 3 April 2001 and 27 May 2004.  The particulars of the charges alleged that, by deceit, certain persons (variously described in the charges) were falsely represented in attendance records as having worked at particular car parks managed by Kwik Park Limited (‘Kwik’) and that, with intent to defraud, Kwik was induced to pay these persons for the work purportedly performed by them which resulted in benefit to those persons and prejudice (or substantial risk of prejudice) to Kwik.

4.  All of those allegedly involved were either closely related or well known to each other.  D1 is the son-in-law of D3 and the younger brother of D4.  D2 is the son-in-law of Lo and Chu was the late wife of D3.

5.  The business of Kwik was to manage car parks in various public and private housing estates for which purpose it employed staff to act as car park attendants.  Amongst the car parks for which Kwik was responsible were estates at Kwai Chung (charges 3, 5 and 7), Lai Yiu (charges 4 and 6), Tsing Yi (charge 1) and Shek Wai Kok (charge 2).  D1 and Lo were, respectively, the Operations Manager and the Area Manager of Kwik.  D2, as well as D3, D4 and Chu received salaries from Kwik for the work they had purportedly done as car park attendants.  This was recorded in attendance records.

Prosecution’s case

6.  The prosecution’s case, shortly described, was that the employment of D2 and the three other persons variously identified in the charges was a sham as they had never performed any of the work shown in the records.  It was alleged that D1 and D2 had operated a ‘ghost worker’ fraud.  The ghost workers for D1 were D3, D4 and Chu.  In D2’s case, he was alleged to have been a ghost worker introduced by Lo.  D2’s personal file with Kwik was said to have included a fabricated employment record which had been placed there by his father-in-law, Lo, whose name appeared on the recruitment and performance appraisal documents.

7.  The monies obtained by means of this scam were, in D1’s case, $224,219.66 (charges 3 and 4, involving also D3 whose purported monthly wages, spread over a 3-year period, were paid directly into D3’s bank account), $182,710.32 (charges 5 and 6, involving also D4 for the same reason as D3) and $17,933.34 (charge 7, involving also Chu, again for the same reason), a total of $424,863.32.  These sums, although supposedly the total amounts earned by D3, D4 and Chu, were eventually transferred to D1’s account.  In D2’s case, the monies obtained on charges 1 and 2 and credited to D2’s account amounted to $202,370.

8.  In order to prove the charges, the prosecution had to prove that D2, as well as D3, D4 and Chu, did not work for Kwik.  For this purpose, 18 witnesses, who were employees of Kwik, were called to establish that D2, D3, D4 and Chu were unknown to other staff members at the car parks where they were supposed to have been working.  Lo, on the other hand, was a regional manager responsible for all the car parks relevant to this case.  He retired in May 2004.

9.  The evidence provided by employees of Kwik was supplemented by immigration movement records which showed that D2, D3 and Chu were often in the Mainland when their attendance records showed them as having been on duty.

10.  In addition, there were admitted facts showing, amongst other things, bank transfers of money from the Kwik account into the accounts of D2, D3, D4 and Chu as well as ATM transfers from the accounts of D3, D4 and Chu into D1’s account.

11.  With reference to the Admitted Facts, the judge said:

“	… A lot of documentary exhibits were produced. They are mainly the personnel documents of each of the four persons [D2, D3, D4 and Chu] as well as the attendance records of the relevant car parks. Personnel documents included the following:
		application forms and supplementary personal information form;
		offer of employment;
		staff training notice and record;
		staff performance evaluation report, and that of D1 and Lo were also produced;
		staff transfer notice - that is for D2 and D3 only;
		retirement notice - that is for D3 only;
		resignation notice - that is for D2, D4 and Chu;
		leave application forms; and
		pay reports.
	13.	As far as the attendance record is concerned, it is convenient first to distinguish it from the duty roster. I call those documents a ‘duty roster’ which purpose was to let people know in advance on which day a particular staff was to work or to rest. This document was usually prepared by the end of each month for the use of the coming month. I call the documents an ‘attendance record’ which recorded whether a staff had or had not worked on each day. It was prepared in the middle of each month and mainly for the purpose of payment of salary. There has been confusion since the same document entitled ‘duty roster’ was initially used for both purposes, and at a later stage a same set of forms was used for these two purposes with option boxes to signify his views. Worse still, witnesses often call a document ‘duty roster’ irrespective of its purpose.
	14.	There is little dispute, and I found, that Kwik did pay the four persons salary due in each relevant month based on their attendance records which showed that each of them had performed duties on the dates stated in the documents. Admitted Facts (Exhibits P114 to 115) are relevant. These attendance records which purportedly have been compiled, verified, countersigned and approved at various levels, show that the four persons had worked in the various car parks in question.” (Appeal bundle pp. 43-44)

12.  The prosecution alleged that the attendance records were falsified in a number of ways.  Sometimes this was done by a forgery of the supervisor’s name and signature and sometimes by adding D2, D3, D4 and Chu’s names to the record after the supervisor had compiled and submitted it.  A third variation occurred where a supervisor was deceived into adding their names and a fourth way of falsifying the records occurred where Lo had compiled the records including the names of D2, D3, D4 and Chu.

13.  Aside from attendance records and work rosters, the prosecution also produced what was allegedly further false personal documentation to cover up the sham.  These documents, at first sight, indicated that D2 and the other alleged ghost workers had gone through the proper recruitment procedures, including interviews and attendance at training courses.

Defence case

14.  D1 and D2 chose not to give evidence at their trial and their two co-defendants did not do so either.  The person who took over D1’s position for Kwik (DW1) was the sole witness called for the defence.  She dealt with staff procedures at Kwik.

15.  The essence of the defence was that the records relied on by the prosecution were an unreliable guide to those who were actually on duty on any given date.  By way of example, it was possible to point to the fact that sometimes a person’s name would be ticked off on the duty roster, and later included in the attendance sheet, when that person had been given time-off in lieu of payment of overtime.  It was argued, therefore, that just because someone’s name was recorded as working at one of the car parks on a day when he was shown not have been physically present on duty, it did not follow that the records had necessarily been falsified.

16.  A second example relied upon by the defence was that the Kwik staff members sometimes had to work in “Mobile Patrol Teams” (‘MPTs’) whose duties were to carry out routine inspections.  It was suggested that when called upon to undertake these duties, it would not be surprising that their identities were unknown to other members of staff.

Grounds of appeal

17.  Seven grounds of appeal were advanced by Mr M K Wong SC.

(1), (1A) and (2) Evidence treated as hearsay

18.  In the first ground, subdivided into (1) and (1A), it was alleged that the judge had erroneously treated material evidence as being inadmissible hearsay.  It was submitted that the judge’s error was to treat Lo’s “instructions to his colleagues [PW8 and PW18] to make entries in D2’s duty roster and attendance record[s] as hearsay and inadmissible”.

19.  In this regard, the judge had said the following:

“

… PW18 said Lo had told him about a staff who was on such inspection duty. There was dispute as to whether Lo had just mentioned the name of the staff as ‘Ah Che[o]ng’ or actually mentioned the name of D2. I do not think it is material, since in any case it is hearsay, and inadmissible for the purpose to prove that D2 was in fact a member of the mobile team. The same applies to the evidence that on 25 March 2004, Lo called PW8, informing her that D2 was on inspection duty and told her to include [him] in the duty roster.” (Appeal bundle pp. 67-68)

20.  The evidence of PW8, summarised by the judge earlier in his Reasons for Verdict, was in these terms:

“	62.	PW8 said that while she had prepared the attendance record for the period, pages 261 to 265 of Exhibit P105 were not her original products and the names thereon as the persons who prepared the document were not written by her.
	63.	The other attendance records which were purported to be prepared by her were in fact her products. They are pages 268 and 269, 271 to 281, 283 to 286. However, the entries in relation to D2 were not. When she submitted her completed attendance record, the entries were not there.
	64.	She did not know D2. There was no staff in her car park of such name.
	65.	Page 287 is a duty roster prepared by her. D2 was included since Lo had telephoned her and instructed her to put his name down since he was to carry out inspection duty. However, she had never seen D2 afterwards. She did not include him in the subsequent duty roster.” (Appeal bundle pp. 56-57)

21.  PW18 had given evidence along similar lines (appeal bundle page 108) saying that he did not know D2 and made entries in the attendance records for D2 based on what Lo had told him.

22.  Mr Wong argued that by treating this evidence as hearsay the judge had ignored the fact that the attendance records for D2, D3, D4 and Chu, compiled by PW8 and PW18 from information supplied by Lo, were prima facie evidence, pursuant to section 22 of the Evidence Ordinance, Cap. 8, to prove that D2 had worked for Kwik.

23.  The same argument was put forward in respect of evidence taken from D1’s interview that he (D1) had been told by Lo that D3 and D4 were on night patrol duties.  Mr Wong contended that this had been “ignored” by the judge when it was “admissible evidence to prove that Lo … had knowledge that D3 and D4 were on night patrol duty and Lo had reported this matter to D1”.  Mr Wong even went so far as to suggest that the evidence of Lo’s knowledge and conduct “could in turn prove that D3 and D4 were in fact on night patrol duty”.

24.  These grounds were misconceived.  As Mr McWalters SC, in his written submissions on the respondent’s behalf, was right to point out, the evidence about what Lo had told PW8 and PW18 was adduced in order to explain why they had made the relevant entries in the attendance records and for no other purpose whatsoever.  In no sense were the entries in the records being relied upon to prove any assertion contained within them.  The prosecution, far from relying on section 22 of the Evidence Ordinance for their introduction, were putting the attendance records before the court in order to demonstrate their falsity and to show that D2, D3, D4 and Chu had been paid salaries based upon the entries in them.

25.  Furthermore, even if section 22(1) of the Evidence Ordinance had been relied upon for the introduction into evidence of the records, this provides, subject to the safeguards set out elsewhere, that “a statement contained in a document shall be admitted in any criminal proceedings as prima facie evidence of any fact stated therein …”.  In the sense that a record is not be regarded as conclusive proof of any of the facts stated in the document under that section, it provided the applicants with no assistance at all in the present context.

(3) Standard of proof

26.  In the 3^rd ground of appeal, Mr Wong submitted that the judge appeared to have adopted the civil standard of proof.  He relied, for this assertion, on three extracts taken from the Reasons for Verdict containing the word “unlikely”.  These were:

(i)	“… I am satisfied that the attendance records prepared by the Supervisors were generally accurate. If there had been major errors it would unlikely have escaped attention for good, in particular if the errors prejudiced the interests of the staff.” (Appeal bundle p. 53) (Emphasis added.)
(ii)	“the four persons [D2, D3, D4 and Chu] were not trained detectives. It is extremely unlikely that none of the four persons had been noticed if they were to go around this estate so frequently, regularly and for a long period, save in the case of Chu which lasted about two months;” (Appeal bundle p. 70) (Emphasis added.)
(iii)	“136.	Having regard to the degree of relationship between D1 and D3, as indicated by the consistent financial transaction on top of being relatives by marriage; D3’s frequent absence from Hong Kong, of which D1 would unlikely be totally ignorant; the fact that Dl was not a person aloof to management of the business, as indicated more significantly by evidence of his car park inspections; I do not accept that Dl was kept in the dark and had believed that D3 was properly employed by Kwik. …” (Appeal bundle p. 77) (Emphasis added.)

27.  This ground completely ignores the fact that the judge made frequent references to the criminal standard of proof in reaching conclusions on the evidence.  It also fails to take into account that the passages where the judge was referring to a situation as being “unlikely” were merely illustrations, and plainly sensible ones, for conclusions he ultimately felt able to reach beyond reasonable doubt.

28.  This ground is bereft of merit.

(4) No evidence of D2, D3, D4 and Chu being members of MPTs

29.  In the 4^th ground, it was alleged that the judge’s conclusion that there was no evidence to show that D2 and the three others had worked as members of the mobile patrol teams (MPTs) was against the weight of the evidence.  This was, as we have indicated already, an important issue in the defence case as it was being suggested at trial that D2, D3, D4 and Chu may, on account of the secret nature of the work done by MPTs, frequently have been omitted from the attendance records as members of staff on duty.

30.  The particular passages which are criticised in this ground are set out in subparagraphs (21) to (26) under paragraph 120 of the Reasons for Verdict.  These subparagraphs were part of the judge’s assessment on the totality of the evidence before deciding whether guilt had been established.  Later, having taken all the salient points into account, the judge expressed himself (in paragraph 122) as being “satisfied that [the] only irresistible inference that can be drawn from the whole of the evidence is that none of the four persons [D2, D3, D4 and Chu] had worked as a member of the mobile team”.

31.  Subparagraphs (21) to (26) read as follows:

“	(21)	I accept that senior officers such as D1 and Lo had the authority to make alterations, amendments and addition in the record, but it goes without saying that it must be lawful and reflect the truth. I appreciate the need for some secrecy, but there is no evidence of any justification, not even to tell regional officers and Supervisors that a [member of] staff would be shown in his car park attendance record without naming him. After the entries of the mobile team members were put in the attendance record, the document would go only further up and then to the accounting department. It did not go back to the car park staff. The identity of the team members would not be disclosed. There was little risk that such disclosure would compromise the efficiency.
	(22)	There is every good reason to show clearly that the entries added were for mobile team members. What had been done was that not only were there no remarks or indications to this effect, in many instances the entries were filled in a blank row, mixing them with that of regular car park staff. Nothing in the documents would allow the company management to know the real picture. This practice bears the mark of a deliberate act to conceal the truth.
	(23)	Moreover, it was not reasonable, nor necessary, to make the attendance records look as if they were prepared by the supervisor while it was not the case. There is no evidence to show why the name of the person who actually prepared the document or added entries into the document could not be shown clearly and frankly. Again, nothing in the documents which allowed the company management to know the real picture;
	(24)	if the four persons had worked full-time in the mobile team, there is no evidence to explain why it had not been reflected in the performance evaluation reports which give only the impression that they were working in a car park, and the true situation kept away from the company management.
	(25)	PW4 had been asked to sign a performance evaluation report of D4 for a period when D4 was not working under her. The details of this aspect will be discussed later when I consider the case against D1;
	(26)	according to DW1, D1 had from time to time been reminded about the need for a mobile team. D1 had never said that the four persons had been engaged on a regular and full-time basis to perform mobile team duties.” (Appeal bundle pp. 72-73)

32.  The comments recorded by the judge were directed at whether the “four persons” to whom he had referred, namely, D2, D3, D4 and Chu, could have been employed by Kwik to work in MPTs.  Mr McWalters contended, again in his written submissions, that in order to deal with this question, the judge had to consider whether there was any legitimate reason for the manner in which D1 and Lo had caused D2, D3, D4 and Chu to be included in the attendance records. The means by which the four persons were usually entered into the records had been set out by the judge earlier in his Reasons for Verdict where he said:

“	…	(1)	entries were added to the original attendance record after it had been submitted by the Supervisor;
		(2)	a fresh attendance record, with the entries added, was compiled to replace the original attendance record submitted by the Supervisor but the Supervisor was still put as the person who prepared the document. There is no evidence to prove who put in the entries in these documents;
		(3)	another way was that attendance records with entries confined to the 4 persons were compiled by Lo.
	47.	All the above said means were done without the knowledge of the supervisor, and in a few cases, regional officer or Supervisors were instructed to add in the entries without explanation.” (Appeal bundle pp. 53-54)

33.  Obviously, it was important for the judge to decide whether D1’s conduct, as well as Lo’s, was reasonably explicable having regard to the evidence which had been given that secrecy was needed to conceal the identity of persons working on MPTs.  Having weighed the evidence, it is apparent that the judge concluded that D1 and Lo had acted in a deliberate way to conceal the truth.

34.  In this regard, a further point, amongst others, made by Mr Wong was that the defence witness (DW1) had said that it was not necessary for the regional officer or supervisor to be informed about the MPTs so that there was nothing wrong in Lo’s adding D2’s name after the supervisor had prepared the attendance record and without letting him know that this had been done.  However, the judge dealt with DW1’s evidence in a way which reveals that he had fully understood the importance of her testimony.  Whilst accepting her as an honest witness, he gave her evidence on this aspect, as he was entitled to do, “little weight since obviously this was only her belief or opinion”.  More significantly, perhaps, Mr McWalters pointed out that this aspect of the case represented only a small part in the judge’s reasons for concluding that D2, D3, D4 and Chu had never been employed on MPT duties.

35.  In our opinion, the judge had most adequately expressed the salient points in the case and had, when reaching his conclusions, conducted a balancing exercise in a manner which reveals fairness and even-handedness.  There is no merit in this ground.

(5) Evidence of knowledge by D2 of his attendance record

36.  In the 5^th ground of appeal, Mr Wong suggested that the judge had been wrong to find that D2 had “made a false representation to Kwik that he had worked at the car park[s] as stated in the attendance record[s] and was on duty on the dates as shown in those records which had been submitted to Kwik in that there [was] no evidence to prove that D2 had knowledge of such an attendance record or that D2 had taken part in making the false representation[s] in the attendance record[s]”.  Mr Wong tried to expand on this ground in the course of argument in today’s proceedings by suggesting also that as D2 had not paid to D1 the monies credited to his bank account over a 3-year period from Kwik (unlike D3, D4 and Chu), this was a further indication that D2 was not involved in the scam.  This was not, however, a point of any substance.

37.  Whilst it is perfectly true that the ground as originally framed sets out what the judge eventually concluded, each of the charges against D2 alleged he had falsely represented that he worked at a car park managed by Kwik on the dates shown in the attendance records which were submitted to Kwik.  There was no direct evidence that he was aware of the precise nature of Kwik’s internal accounting documents.  However, this hardly mattered in the overall context of the frauds alleged against him.  What had to be proved, as the judge duly found, was that he was a party to the making of false representations that he had been carrying out duties on behalf of Kwik for the purposes of receiving a salary to which he had no entitlement.  It was, for these purposes, unnecessary for the prosecution to prove that D2 was aware of the precise nature of Kwik’s internal accounting documents.

38.  This ground fails.

(6) Difficulties faced by the defence in the presentation of their case

39.  It was submitted in the 6^th ground that, as Lo had absconded and as Chu had died, and that as some records for the MPTs had been destroyed prior to trial, the judge ought to have taken into account the “difficulties” which were “beyond the control of the defence” in the presentation of their case.  The failure to do so was said to amount to a material irregularity.

40.  This ground overlooks the fact that the prosecution were treating both Lo and Chu as participants in the frauds on Kwik.  Neither of them was to be regarded as a “missing witness” in the ordinary sense as they would almost certainly have been charged if circumstances had allowed.  Furthermore, on the findings made by the judge, it is clear that Lo must also have been found to be one of those engaged in the joint enterprise of fraud.  In the case of Chu, as Mr McWalters pointed out, D1 could have testified as to why Chu had transferred her “salary” to him and if he had provided an innocent explanation which Chu could have supported, only then would there have been scope for a direction about the difficulties faced by the defence in making their point.  Here, there was no basis on the evidence at trial for the judge to have taken Chu’s absence as a factor which had hindered the defence in presenting its case.

41.  Lastly, on this ground, although Mr Wong alleged that there were missing MPT records, there was no reliable evidence of separate records being kept for the attendance of MPT staff.  However, even assuming the materials which were said to have been destroyed were those of the type referred to by Mr Wong, he was unable to suggest any way in which the defence might be seriously prejudiced by their absence.  At best, it seems, all that such attendance records could have shown was that D2’s name, and the names of others, would have appeared upon them.  As matters stood, without any evidence from the defence, it would have been entirely speculative for the judge have gone more deeply into the matter.

42.  This ground fails.

(7) Lurking doubt

43.  In the final ground of appeal, Mr Wong submitted that there existed a lurking doubt about the evidence on which the judge had relied to convict D1 and D2.  Mr Wong described that evidence as “weak and inconclusive” having regard to the combined effect of the matters raised in the earlier grounds with which we have already dealt.

44.  We do not agree.  The evidence, far from being insubstantial, was cogent and compelling.

Conclusion

45.  The conviction of D1 and D2 on each of the charges they faced was, in our opinion, neither unsafe nor unsatisfactory.  Accordingly, these applications are dismissed.