HKSAR v. CHUNG SIM YING TRACY

HCMA 267/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 267 OF 2001

(ON APPEAL FROM ESCC 3238/2000)

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J U D G M E N T

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The Charges

1. On 5 February 2000, the Appellant, Tracy Chung Sim Ying, was convicted after a 20-day trial before Mr Eddie Yip, Permanent Magistrate, sitting at Eastern Magistrates Court of six charges of misconduct in a public office, contrary to Common Law, charges 1, 3, 5, 7, 9 & 11 ('the misconduct charges') and six charges of obtaining a pecuniary advantage by deception, contrary to section 18(1) of the Theft Ordinance, charges 2, 4, 6, 8, 10 & 12 ('the obtaining charges'). On the same day she was sentenced to serve concurrent terms of 7 months imprisonment in respect of each charge on which she was convicted.

2. She now appeals against her conviction and sentence. Mr Alexander King of counsel, who was her counsel at trial, represents her. Mr Ian McWalters appears for the Respondent.

3. In this judgment I am concerned with the appeal against conviction, hearing of the appeal against sentence having been held over until the conviction appeal is disposed of.

Background to the charges

4. The charges related to the Appellant's work when she was employed as a senior training officer in the Civil Service Training and Development Institute (the Institute).

5. The misconduct charges offences focused upon the Appellant's actions in concealing the fact that she was married to the operator of a printing & design company called TOD Promotions (TOD) and the sister in law of the owner of another printing & design company called The Top Printing & Production Company (Top) from her superiors in the Civil Service when recommending the award of government contracts to those firms. The obtaining charges focused upon her actions in obtaining a pecuniary advantage for her husband by means of the concealment, which was the subject of the misconduct charges. The two sets of charges were not alternatives to each other. The prosecution's case being that the criminal conduct targeted by the misconduct charges enabled the Appellant to commit the obtaining charges.

Facts

Uncontested facts

6. The Appellant joined the Institute as a Training Officer on 2 October 1995. She acted in the rank of Senior Training Officer from 21 September 1998 and was promoted to that rank on 8 November 1999.

7. The Institute is headed by a Director who is supported by an Assistant Director and an Assistant Principal Training Officer. Under them are seven units, one of which is the China Studies Unit. The China Studies Unit is responsible for providing training and information on the Chinese language, the governments of the People's Republic of China and of Hong Kong. It also publishes self-learning materials on these subjects for use by Hong Kong Government civil servants. It is divided into two sections, the Chinese language section and the China Studies Section. The China Studies Section is headed by a Chief Training Officer, underneath him are two senior training officers and underneath them are number of training officers. The Appellant worked in the China Studies Section between 1 September 1997 to 19 October 1999 when she took maternity leave.

8. Up to October 1999 the Institute's Director was Mary Szeto (PW1). In 1999 two persons occupied the Assistant Principal Training Officer post; Stella Man Suk-yee (PW2) up to 31 March 1999, and Cheng Man-fai, (PW3) for the remainder of the year. Throughout the whole of 1999 the Chief Training Officer in charge of the China Studies Section was Ronald Ho Kwai-yick (PW4). The Appellant and another Senior Training Officer, Hily Kwok Yeung Kwai-ming (PW6) worked underneath Ronald Ho. Underneath the Appellant and accountable to her, was a training officer called Sharon Ho Shuk-fan (PW5). When the Appellant left on her maternity leave Evelyn Lai Suk-yi (PW7) replaced her.

9. The Institute contracts out some of the production work for its projects. There are internal regulations governing the contracting out process. These regulations changed on 15 June 1999. Prior to this date, contracts for the procurement of services not exceeding $20,000 in value required at least two quotations for selection and approval was at Chief Training Officer level. For a contract of a value between $20,001 and $500,000 at least five quotations were required and approval was at Assistant Director level or above. From 15 June 1999 at least 2 quotations were required for any contract for the procurement of services, the value of which did not exceed $50,000 and approval was at Chief Training Officer level. If the contract sum was between $50,001 and $1.3 million, at least five quotations were required. If the contract sum was under $500,000 approval was at Assistant Director level or above. If the contract sum was between $500,000 and $1.3 million, the approval of the Director was necessary.

10. Under both sets of regulations a quotation that offered the best value for money was to be accepted. If a quotation other than the lowest was to be accepted then this decision had to be supported by a written justification recorded on the file.

11. Civil servants employed by the Government of the Hong Kong SAR have regularly brought to their attention a conflict of interest circular, No. 19 of 1992, issued by the Secretary for the Civil Service. The purpose of the circular is to set out the areas in which a conflict of interest between an officer's official duties and his private interests may arise. It also gives general guidance on how such conflicts can be avoided and the course of action to be taken when a conflict, whether real or apparent, arises. Paragraph 2 of the circular states that the situations described in it are not exhaustive and that in case of doubt, officers should seek the advice of their superior officers or departmental secretaries. Paragraph 3 reminds all officers that they should at all times make a conscious effort to avoid or declare any conflict that may arise or has arisen and that failure to do so may render them liable to disciplinary action.

12. Paragraph 4 sets out when a conflict of interest may arise. One of the situations described is when an officer's loyalty to the Government conflicts with his loyalty to his family. Paragraph 5 states that it is essential that all civil servants should be honest and impartial in their dealings with members of the public and with their staff, and prohibits them from using their position in the Civil Service, and any information made available to them their capacity as a civil servant, to benefit themselves or their families, financially or otherwise, or to favour their relations or friends, or any other group of people with whom they have personal or social ties. They are also instructed to avoid putting themselves in a position where they might arouse any suspicion of dishonesty, or of using their official position to benefit them or favour their families and friends.

13. Paragraph 6, advises civil servants to decline to provide assistance, advice or information to relations and friends in connection with their work, where this would give the recipient an unfair advantage over other people. To refer all legitimate requests coming from such people to the proper subject officer to be dealt with in the normal way and to report to their superior officer any private interest that might influence, or appear to influence, their judgment in the performance of their duties.

The prosecution's case

14. The Appellant was married to William Chan, a shareholder and director of a company called William Chan Design (Hong Kong) Limited which carried on business under the name of William Chan Design and Production (WCD). WCD had previously successfully bid for Institute work. William Chan was also TOD's proprietor. During the period covered by the charges TOD was a business name. It was only registered as a limited company on 29 December 1999.

15. In 1999 the China Studies Section produced a number of self-learning packages covering the defence and security systems of the PRC, the education system in the PRC and the Basic Law. The design work for each of these self-learning packages was contracted out. There were six contracts in total and all but one went to TOD. The remaining contract went to Top, which is owned by William Chan's elder brother.

16. The Institute's record show that TOD only bid for contracts offered by the China Studies Unit, whereas WCD bid for contracts offered by the other units within the Institute.

17. Until October 1999, WCD, TOD and Top occupied the same offices at Units 8A and 7B in Jonsim Place in Queen's Road East as did a firm called Interactive Communications (Interactive). Interactive was named as the payee on the cheques drawn by the government in payment of TOD's invoices. TOD only occupied unit 7B, where it had a telephone line (number 2838-9821) for its sole use. Interactive was the line subscriber. In October 1999 WCD, TOD and Interactive moved to unit 17A in the same building, leaving Top as the sole occupant of unit 8A. TOD had no signboard at the new premises.

18. Mary Szeto (PW1) the former director gave evidence of the Institute's structure and practices and procedures. In relation to the contracting out of services, she said that all quotations received from service providers should be recorded on an Institute file. There was no legitimate reason why a lower bid should not be included in the file. If a higher bid is to be accepted it is very important to justify that decision. Usually, the justification would be in writing.

19. In relation to the conflict of interest circular, Ms Szeto said that the normal way for an officer to declare a conflict of interest is for him to notify his immediate supervisor of that fact. The restriction prohibiting officers taking advantage of information that comes to them in their official capacity applies to those responsible for awarding contracts and receiving quotations. An officer working on a project in which his relative is involved in a contractual relationship with the Government should declare this at the first opportunity and thereafter not handle the contract. Officers are not allowed to use information concerning putative contracts, including the Institute's budget, to favour their relatives.

20. Ms Szeto was of the view that the fact the Appellant was married to TOD's proprietor gave rise to a conflict of interest.

21. Ms Szeto confirmed that she had signed one of the contracts awarding design work to TOD. She said that she had given her approval on the basis of the minute accompanying the contract. In making her decision to accept TOD's bid, price was the key factor. Had there been a lower bid meeting the same specifications then it is likely that that lower bid would have been accepted.

22. In respect of all six contracts, Ms Szeto said that they were straightforward jobs involving tape dubbing, tape and VCD duplication and the printing of leaflets. For such jobs price is the main consideration in awarding the contract.

23. Ms Szeto accepted that there was nothing wrong in the Appellant recommending TOD to her colleagues, provided that she had informed them of her husband's association with TOD.

24. Stella Man Suk-yee (PW2) the acting Assistant Principal Training Officer at the Institute from October 1997 to March 1999 said that she had approved the Appellant's recommendation in relation to one of the contracts. The Appellant had told her that TOD's bid was the lowest and that TOD had "...shown a very satisfactory portfolio of products". She took this to be an indication that TOD had a proven record. She would not have supported the recommendation had she known that TOD was not the lowest bidder, had not provided a sample and that the Appellant's husband was TOD'S owner.

25. Ms Man said that if an officer wishes to accept a quotation that is not the lowest, all the quotations must be shown and a justification provided to the Director explaining why the lowest bid was not recommended for acceptance.

26. In cross-examination, Ms Man said that for small value contracts, those under $10,000, price would be the only factor and she would not expect to see samples.

27. When asked in cross-examination if quotations that didn't comply with specification had to be ruled out, she replied that all quotations received should be kept on the file and a justification given for ruling them out. If an officer was of the view that a bid did not comply with the specification then he should consult his Chief Training Officer who would decide whether or not the bid did meet it.

28. Cheng Man-fai (PW3) who replaced Stella Man as acting Assistant Principal Training Officer at the end of March 1999, said that, apart from price, quality is the main factor in awarding contracts under $20,000. If an officer wishes to recommend acceptance of a bid higher than the lowest received, he should provide written a justification for this and seek the Director's approval. The lower quotation should be placed on the file and not discarded. This is the normal practice throughout the Institute.

29. Mr Cheng said that for contracts less than $10,000 in value contactors are not normally asked to submit samples or a portfolio of their work.

30. Mr Cheng considered that there was a conflict of interest in the Appellant recommended awarding contracts to a firm owned by her husband. The connection should have been disclosed to her superiors.

31. Ronald Ho Kwai-yick (PW4) was the Chief Training Officer to whom the Appellant was responsible. He said that there were known contractors who did design work for the Institute and that it was easy to obtain quotations from them.

32. He considered the Appellant to be an experienced and capable officer. He had delegated the job of drawing up specifications to her. In respect of the first to third contracts, his role had been to review the process of calling for quotations to see if they met the Government Supplies Department's regulations.

33. He said he would not have given his approval or support to any of the six contracts had he known of the Appellant's connection with TOD and Top.

34. In respect of the first contract, he accepted the Appellant's recommendation and gave his approval on the basis of the minute alone without reference to the file. Only two quotations were required, but it was his usual practice to require his subordinates to provide more than two. All rejected quotations should be kept on the file and recorded in the minutes. When asked whether he regarded it as acceptable for his subordinates to discard a quotation that did not meet specifications, he said that he would expect to be informed of that so that he could make sure that the decision was a valid one.

35. He said that his attention had not been drawn to Conceptual Design's quotation. He saw nothing on the face of the quotation to explain why that was. Had it been brought to his attention he would have accepted it as it was lower than TOD's.

36. He gave similar evidence in respect of the quotations from a firm called SFC in relation to other contracts and said that both of these quotations should have been placed on the file and a justification given in the minute explaining why TOD's higher bid was to be preferred. He said that for contracts of a value lower than $20,000 price is the most important factor in choosing the contractor.

37. He was in no doubt that there was a conflict of interest when an officer assessed or called for quotations from companies in which that officer had a relative or a friend. He was quite definite that the Appellant had never informed him of any conflict of interest of her own volition or told him that her husband was bidding for Institute contracts. He became aware of this only in early September 1999 when Sharon Ho informed him that she suspected the Appellant had done improper things whilst dealing with contracts. She was said to have disregarded some quotations and that Sharon Hon suspected that the principal of the company to which the contract was awarded was the Appellant's husband. He was not aware at this time that the company involved was TOD, he only became aware of that when he checked the Basic Law file, which the Appellant had handled.

38. In cross-examination he said that Sharon Ho's main complaint was that the Appellant was favouring her husband's company. Sharon Ho had only mentioned the Appellant disposing of, or disregarding, quotations once and had accompanied her words with a remark like 'Never mind' or 'It doesn't matter'.

39. A few days after he had spoken to Sharon Ho he called the Appellant into his office and asked her whether Sharon Ho's complaint was true, and in particular whether her husband was usually successful in bidding for contracts? She admitted that it was. He asked her why she had used her husband's company. She said it was because the company was efficient, provided a good quality product and offered the lowest price. He told her this was a serious matter and he could not approve awarding contracts to companies in respect of which she had a conflict of interest. He told her that he was unable to check if she had a conflict of interest with a particular company and relied on her to declare if there was a conflict. He emphasised the seriousness of the matter by reminding her that if there was a conflict of interest in the award of contracts, his superiors and he could not pass an ICAC investigation.

40. He did not raise Sharon Ho's allegation that the Appellant had removed lower bids from the files with her. He simply forgot about this. When he realised that he had, he decided to raise it with the Appellant upon her return from maternity leave. When asked what the Appellant's reaction was, in this interview he replied, "To me she was quite quiet. I thought she knew the seriousness of the matter." Because he was so busy with other work, he did not get an opportunity to talk with the Appellant about this matter again before she left on her maternity leave.

41. Ronald Ho said that he did not report the matter to his superiors because he felt that he needed to make further investigations before doing so. He was also concerned about the Appellant's state of health as she was in a late stage of her pregnancy. He said that he decided to defer this matter until she returned from maternity leave. He adhered to this explanation when pressed about it in cross-examination.

42. Ronald Ho said that he had a second meeting with Sharon Ho before the Appellant went on maternity leave. By then he knew the company concerned was TOD. At this meeting Sharon Ho told him that a TOD quotation had been received in respect of another project and she felt uncomfortable about handling it. He told her to keep him informed of further progress. He had no further contact with Sharon Ho about this matter.

43. When the Appellant went on maternity leave Evelyn Lai, who took over responsibility for the sixth contract in favour of Top succeeded her. When Evelyn Lai passed the file to him for his approval of this contract he saw that TOD had been one of the bidders. However, as their bid was unsuccessful and since the Appellant had not been involved in making the recommendation, he felt comfortable in approving the granting of the contract to Top. Had he known that TOD and Top were connected and that Top's owner was the Appellant's brother in law, he would not have approved the contract until he had ascertained whether or not the Appellant had been involved in obtaining the quotation.

44. Sharon Ho Shuk-fan (PW5) worked under the Appellant. She described how she identified prospective contractors in consultation with the Appellant; how she drew up the specifications in accordance with the Appellant's instructions; how she submitted the quotations received to the Appellant and how the Appellant returned the quotations to her with an instruction naming the company to be recommended for the work. The latter part of this process was a departure from the procedure Sharon Ho's former boss had followed. Then, she had written the recommendation herself and included a reference to all quotations received in the minute. The Appellant had never discussed with her which company should be recommended, instead she told her which one to recommend. This, too, was different from the practice of Sharon Ho's former boss, whose practice had been to include a reference to all quotations that met specifications in the recommendation minute.

45. In respect of the 1st contract, Sharon Ho said that the Appellant took the unusual step of preparing the minute recommending acceptance and passing it to her for signature. Usually the procedure was the reverse: the subordinate prepared the minute for the senior to sign. TOD had not been asked to quote for that contact and she only saw their quotation when the Appellant passed the minute to her. Sharon Ho confirmed that that she had received all other quotations from TOD in accordance with the usual practice.

46. She said that after she passed Conceptual Design's quotation (which apparently was a composite quotation covering the first three contracts) to the Appellant she never saw it again. When she asked the Appellant what had happened to it the Appellant didn't answer her.

47. Sharon Ho had first contacted TOD at the time of the 3rd contract when she rang Helen Yuen. The Appellant had given her Helen's name and phone number.

48. In respect of payment of TOD's fees, not only was it was stated on their invoices that payment was to be made directly to Interactive, but the Appellant had repeatedly reminded her that payment had to be made to that company. On one occasion the Appellant asked her to name herself as the claimant in respect of three invoices and ask for payment of TOD's fees in cash, which was then to be handed over to the Appellant. She had refused to do so.

49. Sharon Ho said she first became suspicious of TOD and the Appellant's connection with it, around April 1999 when a member of the administration staff told her that items of expenditure relating to self-learning packages had not been reported to her. Sharon Ho traced the cause of this to the Appellant's obliteration of part of a minute relating to a payment to TOD, which had led to the file being misrouted. The next thing that aroused her suspicions was when the Appellant wanted to contract out to TOD the formatting of the templates of two booklets relating to the Basic Law. Sharon Ho saw no need for this work to be contracted out. She found the Appellant's attitude strange and spoke to Ronald Ho about it. He helped her to find someone to assist in this work. The next thing was the three cash memos incident.

50. Sharon Ho recalled her first conversation with Ronald Ho as being sometime in August. She then had suspicions about the relationship between the Appellant and TOD, but did not discuss this with him because she respected the Appellant. Her purpose in talking to Ronald Ho was because she did not want to use TOD for the formatting of a booklet. This was a job which she felt need not be contracted out. If TOD was awarded the contract she would have to write a recommendation minute. Ronald Ho told her to wait and see as the matter had not yet come up, adding that if TOD was engaged again then he should be informed. She mentioned her suspicions in a second conversation she had with Ronald Ho, but only "obscurely", because she didn't really know what the position was and she respected the Appellant. "Obscurely" meant that she didn't know whether the Appellant and TOD were actually connected. The time lapse between the first and second conversation was several weeks. The second conversation was before her marriage.

51. Sharon Ho said that she spoke to Ronald Ho on a third occasion, an informal one, again telling him that the Appellant had used TOD. Ronald Ho said he would follow the matter up. Despite these conversations Sharon Ho still signed, the minute relating to the award of the fifth contract. She did so because although she had told Ronald Ho of her concerns, he had given her no instructions about she should do. When she told Ronald Ho that the Appellant had found TOD to do the work for the fifth contract he simply said, "Let me think about it". He had also asked her about her relationship with the Appellant and commented that the Appellant was about to take maternity leave. She took Ronald Ho's reference to the Appellant going on maternity leave as a sign that she need not sign the minute.

52. Sharon Ho said she never discussed the awarding of contracts to TOD with the Appellant. The reason for this, she said, was because after the cash memo incident she thought that the Appellant would be angry if she tried to discuss it with her.

53. Evelyn Lai Shuk-yee (PW7) gave evidence relating to the 6th contract. She said that the Appellant gave her the quotations relating to that contract and told her that as TOD had already done the design work, this was just the printing work. If the Government Printer couldn't do the work, she recommended that Top be awarded the contract as it offered the lower price. The Appellant gave Evelyn Lai the name of Helen Yuen as the contact at both TOD and Top. When the Government Printer wasn't able to do the work, Evelyn Lai sought approval to award the contract to Top. She did not see quotations received from other companies, but simply followed the Appellant's recommendation. She was unaware of the relationship between the Appellant and TOD, and Top. Had she known of it, she would have seen it as a problem and discussed it with Ronald Ho.

54. In the course of a cautioned video recorded interview conducted by ICAC officers the Appellant admitted that she was involved in the self-learning courses, which required her to find suitable contractors. In choosing a contractor a number of factors had to be considered, the main ones were reliability, quality and cost. The procedure was for Sharon Ho to obtain quotations, select those that came from firms with a good reputation and recommend acceptance of the lowest. Her superior, Ronald Ho, would normally accept her recommendation. In fact he had never refused to approve her recommendation.

55. WCD is her husband's company. She had previously referred WCD to a colleague in the Institute and assisted that colleague in the collation of quotations and WCD was awarded the contract. On that occasion she had told management that her husband was WDC's owner.

56. In relation to the 1st contract, she knew of the existence of quotes lower than TOD's and excluded them because she knew that they would not provide the kind of service that she required. She knowingly concealed the existence of the lower quotations because if she hadn't, she would have had to explain why the lower quotation was not selected. She did this in order to make it simpler and because of time constraints. She accepted that she should have revealed the existence of the other lower quotations to the management and it was wrong for her not to have done so. She accepted that failing to show the lower quotations in the minutes was unfair to the companies who had provided them. With hindsight, she realised that she should have informed her superior and that the result of her not doing so was that the Institute and the Chief Training Officer had been deceived. She did not accept that there was a conflict of interest in recommending that contracts be awarded to her husband's company.

57. She admitted that TOD was her husband's company and Interactive was its sister company and that her husband's elder brother owned Top and that Helen Yuen worked for her husband. She said that her husband would have known of quotations supplied by Helen Yuen and would have knowledge of the project for which the quotations were being provided from information he had obtained from her (the Appellant). She had told her husband what budget the Institute could afford in respect of a particular project. She accepted that her husband got the advantage of the extra business.

58. She said that Sharon Ho did not know of TOD. She (the Appellant) had told her boss (Ronald Ho), that she was acquainted with TOD, but she had not told him of her husband's connection with it. She recognized that it would have been better for her to have told the Institute about her husband's connection with TOD and Top.

The defence case

59. The Appellant chose not to give or call evidence at the trial proper, though she gave evidence on the voir dire. There was therefore no evidence coming from the Appellant to weaken, contradict or undermine the Prosecution's evidence.

60. On the issue of concealment, her defence as disclosed in cross-examination was that she had told Ronald Ho about her relationship with TOD before TOD was engaged in respect of the 1st contract in January 1999. On the issue of suppressing lower quotations, her defence was that all of the unused quotations failed to meet the Institute's specifications for the required work and, by reason of that, could not he considered as eligible ones, so there was really no issue of her suppressing lower quotations. It was also her defence that TOD's work was of high quality, the Government got value for money, no conflict of interest arose and she had not acted dishonestly.

The issues

61. The issues that the Magistrate had to address were: was there a conflict of interest when the Appellant recommended to her superiors that the contracts be awarded to TOD and Top? If there was; was she aware that it existed; was she under a duty to reveal it; did she reveal it and, if not, was her failure to do so deliberate and dishonest, and done with an intent to confer a benefit on her husband and in the case of the 6th contract on her brother-in-law who owned Top?

Grounds of appeal

62. Mr King, on behalf of the Appellant, in extensive grounds of appeal argues that her conviction is unsafe because the Magistrate relied on Ronald Ho's evidence. The alleged problems with that evidence are the basis of the 1st and 2nd grounds of appeal, in which Mr King argues that the Magistrate failed to explain adequately why he came to believe Ronald Ho. Mr King says that Ronald Ho's evidence was such that no reasonable tribunal would have accepted it.

63. The 3rd ground argues that the Magistrate erred in finding that the Appellant acted dishonestly.

64. The 4th ground argues that the Magistrate failed to consider the defence evidence.

65. The 5th ground attacks the admission and assessment of the Appellant's record of interview.

66. The 6th & 7th grounds argue points of law.

67. I will deal with the specific allegations in each ground of appeal as I come to them.

68. Leaving to one side the legal issues raised in the 6th & 7th grounds, this appeal boils down to an attack on the Magistrate's findings of fact that the Appellant concealed from Ronald Ho that she was married to TOD's owner and was the sister-in-law of Top's owner and that she did so for the purpose of improperly benefiting herself and her husband. The 1st to the 5th grounds are all, in one way or another, directed at these findings of fact.

69. Before proceeding further, it is necessary to make two observations.

70. Firstly, it is well settled that my function in hearing this appeal is not to re-hear the case, or re-try factual issues. I can only intervene if it is clear from the transcript of proceedings that the Magistrate made an obvious error as to law, or came to a decision which was irrational in the light of the evidence given at trial (see: HKSAR v Cheung Ho-ying (1999) 3 HKLRD 45). Even if I conclude that an error, or errors, occurred that is not the end of the matter. I then have to decide whether that error, or those errors, make it just that the appeal should be allowed and the conviction set aside. An error, or errors, that are immaterial do not require that the appeal be allowed. An error is immaterial if the Magistrate would undoubtedly have entered the same verdict notwithstanding the error. (see Ching Kwok-yin v HKSAR [2000] 3 HKCFAR 387.)

71. Secondly, that in order to establish its case the prosecution did not solely rely on Ronald Ho, Sharon Ho and Evelyn Lai's evidence relating to the awarding of the six contracts in question. These witnesses were only part - albeit a major part - of its case. The prosecution relied also on evidence of system and the procedures within the Institute; evidence of the conflict of interest circular; evidence of the ownership of TOD, Top, WCD and Interactive; their location and practice of bidding for Institute contracts as well as the contents of the Appellant's video recorded record of interview.

72. The Magistrate approached his consideration of the evidence by first considering that interview. He concluded (at paragraph 90 of his Reasons) that:

"The defendant's admissions in the interview are sufficient on their own to establish beyond a reasonable doubt that she never revealed to Ronald Ho, or to anyone else at CSTDI, the conflict of interest that existed in her duties in recommending the award of contracts to her husband's firm."

73. The appropriate staring point in considering this appeal, therefore, is the 5th ground of appeal, which concerns the admission of the Appellant's video recorded interview.

5th ground of appeal - the Appellant's Record of Interview

74. The 5th ground of appeal argues that the Magistrate erred in admitting the Appellant's video recorded interview into evidence. In particular it is said that he failed to consider properly, or at all, matters which clearly demonstrated that the evidence of the prosecution witnesses was unreliable in relation to the circumstances surrounding the interview. He is said to have wrongly rejected the Appellant's evidence in relation to that issue. And having admitted the record of interview into evidence, it is said that he erred in according too much weight to certain of the Appellant's answers.

75. The prosecution called four witnesses in the voir dire, which was conducted under the alternative procedure. The defence relied solely on the Appellant's evidence. The grounds of objection to the admission of the record of interview were stated very simply as:

" 1. The caution statement was obtained as a result of inducements, threats and promises made by ICAC officers.

2. The details of the matters stated in paragraph one will be put to the relevant officers in the course of cross examination."

No further particularization of the allegations appears to have been given by the defence, or asked for by the prosecution, or the Magistrate.

76. There are an abundance of authorities stating that a judge or magistrate is not required to give reasons for his ruling on the admissibility of a cautioned interview. (See: R v Kwok Kwan-ho [1973] HKLR 231; R v Li Ming-kwan [1973] HKLR 275; R v Leung Lai-por [1978] HKLR 419; R v Hui Chuen-kit Cr App 133 of 1990 (unreported); R v Chan King-hei & Ors Cr App 358 of 1994 (unreported); R v Ng Kam-chuen Cr App 87 of 1995 (unreported) and R v CHUN Yeung Cr App 89 of 1995 (unreported). In making his ruling on admissibility the Magistrate said no more than that he was satisfied beyond all reasonable doubt that the interview was voluntary. That was sufficient.

77. There is likewise ample authority that it is not for an appellate court to retry the issue of admissibility. On this issue in R v MAK Foon-than Cr App 253 of 1984 (unreported) Roberts CJ said, at page 11 of the judgment:

"Only in the rarest occasions, when satisfied that no judge could reasonably have refused to exercise his power to exclude, should an appellate court interfere with such a refusal."

And in R v CHUN Yeung (above) Mortimer JA said at pages 2-3 of the judgment:

"(Counsel), who appears for the applicant, submits that he ought to have leave to appeal on the basis that the judge's evaluation of the evidence on the voir dire was flawed...In making his decision, the judge gave reasons. Although he was not under any obligation so to do, having given reasons it falls for this Court to consider them...It is in respect of the evaluation of credibility that (counsel) challenges the judge's assessment. The judge accepted the evidence of the police officers on the voir dire and rejected that of the applicant...The evaluation of the evidence was a matter solely for the judge and not for this Court...In these circumstances (counsel) has not been able to demonstrate objectively that the judge was under any misapprehension about the evidence or that he made any decision of fact which was clearly and objectively wrong. His evaluation of the evidence is not a matter for this Court, but for him alone.

78. In order for this ground of appeal to succeed the Appellant has to satisfy me that the Magistrate took a perverse view of a witness or, having regard to the whole of the evidence, his finding was unreasonable or irrational.

79. It is obvious from his short ruling that the Magistrate did not believe the Appellant's evidence. There is no way that I can test whether that conclusion was perverse, unreasonable or irrational. It is for magistrates, not appellate judges, to evaluate evidence and to decide which witnesses they are to believe and indeed which part of a witnesses' evidence they believe; for they are no more bound to accept the whole of witnesses' testimony than a jury is. Once the Appellant's evidence was disbelieved then the Magistrate had to put her evidence aside and disregard it, and consider the testimony of the prosecution witnesses. There is no indication in his findings that he failed to do this, or that he was unaware that he had to do so.

80. In his closing submissions in the voir dire Mr King put his case on admissibility this way:

"...the court should be left with some real concerns about whether the evidence given by the ICAC officers has accurately reflected what in fact occurred on those occasions during that day, and my submission is that with those doubts must follow doubts about the voluntariness of the statement"

"...the evidence of the principal ICAC officers involved in this exercise....in my submission, is suspect and the court should have grave doubts about it."

"...what we have is witnesses who are not so impressive as Mr McWalters stated to the court."

81. Mr King conceded that the video did not:

"...show a defendant who in any way, during the course of the statement, was being pressured so that her will was overborne."

82. Given the difficulty he faces in advancing this ground of appeal, Mr King is constrained to argue that those, who trial were simply witnesses about whose testimony there was a reasonable doubt, are now, on appeal, somehow transmogrified into witnesses whose testimony was so badly flawed that no reasonable magistrate could have found them to be honest and reliable. In doing that he attacks their credibility in respect of three areas of their testimony, namely their account of:

(1) their initial encounter with the Appellant at a health club at the World Trade Centre where she was arrested;

(2) the search of the Appellant's home; and

(3) the location at which a blue file was seized.

83. At trial, in respect of the first matter, Mr King compared the evidence of the Appellant and the ICAC offices and merely said that the Appellant's evidence was "preferable". The Magistrate was not of that view; nothing can arise from that.

84. In respect of the second matter, Mr King attacked the period of time that the officers said it took them to search the Appellant's home. He put to them all the matters concerning this on which the Appellant later testified. But once it is accepted that the Magistrate was entitled to disbelieve the Appellant, as he was, and her evidence is put to one side, then all that remained in respect of these matters were unsubstantiated allegations which had been denied by the prosecution witnesses. Nothing can arise from that either.

85. In respect of the third matter, the location of the blue file, it was not in dispute that this file existed and had been seized by the investigating officers. What was in contention was from where it had been sized. Obviously, this is not a matter that had any probative value in the trial proper.

86. There was a minor inconsistency as to exactly where the file was found. The officer who found it said it was found in a box at the Institute. The other officer said it was found on the Appellant's desk; this same second officer also said that she had a poor recollection of where it was found. This commonplace inconsistency is not such as would entitle an appellate court to say that no reasonable magistrate could have found that they were believable and reliable witnesses.

87. The Appellant denied that the file had been seized on the occasion of her visit to the Institute with these two officers, coupled with the assertion that the file could not have been seized at her office because it could not have been there. This was based on the assumption that after the Appellant left on maternity leave in October 1999 other members of the Institute's staff had worked on the file. As the voir dire progressed it became apparent that the file had been accessed after these other staff had worked on it for the purpose of providing the ICAC investigators with copies of relevant documents whilst the investigation was in its covert stage. The evidence, therefore, established that an unknown number of persons had accessed the file for different purposes since the Appellant had left the Institute.

88. From this Mr King made the claim that it was impossible for the file to have been at the place the officers said they seized it and asserted that this cast a very serious doubt on the whole reliability and integrity of the two officers' evidence. He suggested that as they needed a justification for taking the Appellant back to the ICAC Headquarters after finishing their search at the Institute, they lied about where and when they had had found the file. There was no evidential basis for that proposition; it was speculative in the extreme. Even if the officers were wrong as to where and when they had seized the file there was no basis for inferring that their error was anything other than a genuine mistake. The Magistrate clearly did not share Mr King's view. The only issue for me is whether on the evidence that he was right to disagree with him? He most certainly was.

89. I have, in paragraphs 54 to 58 inclusive summarized the admissions the Appellant made in the video recorded interview. In his Reasons the Magistrate said that he was satisfied that what she had said in her interview was "true and reliable" and that there was nothing to convince him "to attach less weight to it". Mr King attacks that finding by saying that it is quite obvious that the Magistrate failed to evaluate the record of interview, for such a wide ranging acceptance of the truth of its contents must necessarily mean that the Magistrate accepted the exculpatory parts as true, just as much as he accepted the inculpatory parts as true.

90. I agree that it is unfortunate that the Magistrate chose to use a phrase of such wide sweep, but when he said he was attaching full weight to the record of interview he was clearly referring to its inculpatory and not its exculpatory parts. For example it is clear from his discussion of the problem quotations in paragraphs 92 to 102 of his Reasons that he rejected the Appellant's claim that her only reason for not revealing the existence of these was because the firms who had tendered them could not provide the quality of service that she required.

91. Coupled with this ground is a complaint that the Magistrate failed to give the exculpatory parts of the interview due weight. The answer to that is that the law allows a tribunal of fact to assess for itself the weight to be given to each answer and that in doing so it can quite properly give less weight to exculpatory answers than it does to inculpatory ones. On this point Stock JA in HKSAR v Poon Hoi-wing [2001] 1 HKC 363 at page 369 A-D said:

"It is asserted correctly, that as a matter of law both the inculpatory and the exculpatory parts of a mixed statement are admissible as evidence of their truth (see R v Sharp [1988] 1 WLR 7; R v Aziz [1966] 1 AC 41 and R v Chan Chi Wai [1992] 1 HKCLR 1).

That does not, however, mean that the two parts must carry the same weight. On the contrary, a tribunal may well take the view that the inculpatory part is more likely to be true and therefore give it great weight, and the exculpatory part, being self-serving, worthy of less, or even little, or even no weight. It is important to appreciate that the exculpatory part is admissible as evidence of its truth not in some vacuum. It is admissible to that end because without it the tribunal of fact is less able fairly to evaluate the facts admitted. (see R v Sharp [1988] 1 WLR 7 at 15D-E and R v Donaldson (1976) 64 Cr App R 59 at 64)".

92. The Magistrate was entitled to give less, or no, weight to the Appellant's exculpatory answers and the Appellant has failed to convince me that he erred in any way in doing so.

93. Giving full weight to the Appellant's inculpatory admissions in the video recorded interview, the Magistrate was entitled to make the finding he did at paragraph 90 of his Reasons, which I have already quoted.

94. There is nothing in this 5th ground of appeal, which fails.

1st and 2nd grounds of appeal

95. The first and second grounds of appeal may be taken together.

96. In the first ground Mr King makes numerous criticisms of Ronald Ho's evidence and advances the argument that Ronald Ho was an incredible and unreliable witness and that the Magistrate failed to consider and evaluate the incredible features of his evidence. These are said to be that Ronald Ho:

* despite having promised Sharon Ho that he would do so, failed to conduct a meaningful investigation of her complaint;

* agreed that he would want to prevent TOD from being awarded further contracts, but never asked Sharon Ho for the name of that company and was unable to provide an answer as to why he did not:

* said he did not ask the Appellant the name of the company when he confronted her with Sharon Ho's complaints;

* failed to question the Appellant further upon the receipt of subsequent complaints from Sharon Ho;

* failed to make a note of Sharon Ho's first complaint and minute the complaint to his superior officers for their consideration.

* failed to report the Appellant to the ICAC, which was said to be in breach of Civil Service Branch Circular No. 20/79 (a defence exhibit) which deals with how civil servants should deal with a suspicion that a colleague is corrupt. But instead chose to conduct his own inquiries in breach of the provisions of the same circular and then failed to conduct any inquiry;

* failed to report Sharon Ho's complaints to the Promotion Board that was considering the confirmation of the Appellant's promotion;

* failed to report the matter to his superiors at any time, even after the Appellant gave birth to her child.

* continued to support recommendations for the award of contracts received from the Appellant after he had received Sharon Ho's complaints. Despite saying that he was "shocked" when he heard her first complaint and was aware of the potential criminal implications.

* sought to explain away his failure to comply with his duty to report the complaint to his superiors after the first complaint by making four separate excuses; namely that:

* it would be very stressful to the Appellant, who was at the time very pregnant;

* he had some responsibility to investigate into the matter to look for more facts;

* his workload was very heavy; and

* if he referred the complaint to his superiors immediately, the matter would become part of office gossip, which could produce very serious results.

97. In advancing the second ground of appeal, Mr King argued that the Magistrate failed to deal with significant inconsistencies and conflicts in the evidence and failed to indicate in his Reasons how he resolved them. Here Mr King dealt with five aspects of the evidence, some of which are inter-related.

98. First, he says that the Magistrate misstated Sharon Ho's evidence about the dates she complained to Ronald Ho.

99. Sharon Ho said she spoke to Ronald Ho about her suspicions before 3 September 1999. The first time was "almost August" when she told Ronald Ho that TOD was always engaged by her section and that some quotations were missing. The second time was the incident of the cash memos. Sharon Ho said that both of these complaints were before 19 August 1999. The third time was before she signed Ex P52, a memo dated 3 September 1999 which relates to the award of the 5th contract. Sharon Ho said that she had no cause to make further complaints to Ronald Ho after 3 September 1999.

100. The Magistrate is said to have misstated her evidence in finding that the first complaint was in early August 1999 and the second complaint was "probably in or around 3rd September." He acknowledged that Sharon Ho told Ronald Ho of her concerns on an earlier third occasion, but failed to make a finding as to the date of this complaint.

101. Secondly, Mr King says that the Magistrate failed to consider and resolve material differences between Ronald Ho's and Sharon Ho's evidence as to the time when each complaint was made and reached a conclusion on that matter founded on speculation not evidence.

102. The first of these alleged "material differences" concerns the time of Sharon Ho's complaints to Ronald Ho.

103. Sharon Ho's account is summarized above. Ronald Ho said that Sharon Ho's first complaint was in early September 1999. He remembered this date because it took place very shortly before the commencement of the Leadership in Public Sector course, which started on Thursday, 16 September 1999. In evidence, he said that the second complaint was around late September to early October, after the start of the course. In his witness statement he had said that the second complaint was around early November 1999. At trial he said that he had been mistaken about that, as the second complaint was made to him before the Appellant left on maternity leave on 16 October 1999.

104. Mr King says that the Magistrate engaged in unwarranted speculation when he said, in paragraph 84 his Reasons, that Ronald Ho must have forgotten about the first complaint.

105. The second of these alleged material differences concerns the content of Sharon Ho's complaints to Ronald Ho.

106. Ronald Ho said that Sharon Ho told him that the Appellant was approving contracts with a company owned and run by the Defendant's husband, but she did not tell him the company's name. He also said that Sharon Ho had only "passed a slight remark" that the Appellant had discarded some quotations.

107. Sharon Ho said that she told Ronald Ho that the Institute always engaged TOD and that some quotations were missing. She said she had told him that the company was called TOD, but she did not tell him that she suspected the Appellant's husband ran TOD.

108. The Magistrate did not refer to this conflict at all.

109. Thirdly, Mr King says that the Magistrate failed to consider properly, or at all, the evidence of the Institute's Directorate Officers about what was required of a senior officer of Ronald Ho's rank upon receipt of complaints from subordinate staff and failed to consider why Ronald Ho failed to take any action in relation to those complaints.

110. Mary Szeto had said that there were "very clear guidelines on complaints". The Institute's management put a lot of emphasis on how to handle complaints. The management wanted all officers to know that there were clear channels for complaints. The guidelines were very explicit on what action is required of a recipient of a complaint. A complaint by a staff member against another concerning conflict of interests a very serious matter. If the recipient of such a complaint is of the rank of Chief Training Officer, as Ronald Ho was, he is duty-bound to take steps to investigate and must record the complaint in writing. He is also obliged to inform, at least, his immediate superior of the complaint. If a civil servant encounters what he believes to be corruption or criminal offences within his department, there is a mandatory duty on him to report that matter. Ronald Ho did none of these things.

111. Fourthly, Mr King says that the Magistrate failed to consider that Ronald Ho had an incentive to misrepresent the state of his knowledge regarding the awarding of contracts to TOD. Ronald Ho said that he did not wish to become a suspect in an ICAC investigation, or the subject of an internal inquiry at the Institute and did not wish to jeopardize his own promotion, which was being considered around the same time as the Appellant's.

112. Fifthly, Mr King says that the Magistrate ignored the Directorate Officers' evidence relating to the treatment of quotations that failed to meet specifications.

113. Mary Szeto said that it would be "most irregular" for Institute staff to call up bidders to ask them to amend their quotations and that, once received, quotations have to stand and no amended ones should be admitted. A quotation will be disqualified if it results from the Institute's staff calling the bidder and asking him to re-quote at a lower price.

114. Stella Man said that it is wrong for an Institute staff member to ring up a bidder and inform them that their quotation is too expensive, or does not meet specifications. She also said that a Chief Training Officer does not have the power to accept a quotation that fails to meet specifications.

115. Cheng Man Fai said that a bid that does not meet specifications cannot be accepted in any circumstances.

116. Ronald Ho said that bids could not be resurrected.

117. However, Cheng Wing-han an employee of another design company that bid for the Institute's work, and whose witness statement was read into evidence under s.65B of the Criminal Procedure Ordinance, said that Sharon Ho had asked her to lower the price of a quotation.

118. Although the Magistrate said that he accepted the Directorate Officers' evidence, he concluded that invalid bids could somehow be resurrected. This says Mr King was not based on evidence and amounted to speculation.

119. Mr King substantiated all these points by reference to passages in the transcript of the relevant witness's evidence.

120. Given that the Magistrate was satisfied (see: paragraph 90 of his Reasons, which I have already quoted) that the Appellant's admissions in her video recorded interview were sufficient on their own to establish beyond a reasonable doubt that she never revealed the conflict of interest that existed in her duties in recommending the award of contracts to TOD either to Ronald Ho or anyone else at the Institute, Ronald Ho and Sharon Ho's evidence assumed a lesser importance at trial than Mr King would have it did. It supported what had already been proven beyond reasonable doubt. Its independent purpose was to enable the Magistrate to determine when it was that Ronald Ho became aware that the Appellant was awarding contracts to her husband's firm; and when the Appellant become aware that Ronald Ho knew what she was doing.

121. On these matters the magistrate preferred Sharon Ho's evidence on the question of the timing of her conversations with Ronald Ho. Admittedly, Sharon Ho's memory was imprecise; she could only say that her first complaint was in August. As she could not be sure of the exact dates she used two incidents as reference points. The first was the cash memos incident and the date of the 5th contract. She remembered the Appellant asking her to seek cash reimbursement of TOD's invoices and also to find companies to work on the 5th contract. The cash memos incident can be dated to around 20 August and the minute in respect of the 5th contract (Exhibit P52) is dated 3 September 1999. The second reference point she used was the date she started her wedding leave; 10 September 1999. She said that the delay between her first and second complaint was a few weeks. It was apparent from her evidence that at the time of the first complaint the minute had not yet been written, which narrows the field down to a date before 3 September 1999, although in cross-examination Sharon Ho placed it on a day in August. The Magistrate contented himself by saying that Sharon Ho said the second complaint was before 3 September 1999.

122. Sharon Ho said that there was a third occasion on which she spoke to Ronald Ho. This was "a very informal" one and may even have been in the course of a phone conversation. She said that this conversation took place before she signed the minute relating to the 5th contract, which dates it to sometime before 3 September 1999.

123. Ronald Ho could only remember the second complaint, which he remembered as being the first complaint Sharon Ho had made to him.

124. The magistrate recognised that there was a conflict between Ronald Ho and Sharon Ho's evidence on the issue of timing. But having satisfied himself from the record of interview that the Appellant had concealed the conflict of interest from Ronald Ho, the issues in respect of his evidence became narrowed. It was not a question of whether or not Ronald Ho was telling the truth when he said the Appellant had never told him of the conflict of interest from the time of the first contract; rather, the issue was: when did he find out about it? And could he have been mistaken as to the time he did? The Magistrate rejected Ronald Ho's evidence on timing because it was uncertain, but did not find him to be a liar. He was satisfied that Ronald Ho had forgotten about Sharon Ho's first complaint. I can see no reason why he should not have done so.

125. In respect of the time the Appellant became aware that Ronald Ho knew of her connection with TOD; the Magistrate concluded that Ronald Ho had spoken to her about this in September 1999, after he had signed the minute relating to the 5th contract. That dates the conversation to a date after 4 September 1999. The only direct evidence of when this conversation was came from Ronald Ho. He said that it was before he started the leadership course on 17 September 1999 and a few days after Sharon Ho had made her complaint to him. Imprecise though that is, there was circumstantial evidence to support it. It lies in the form the 5th and 6th contracts took. The 5th contract proceeded in the same way as those that had gone before it; TOD was named in the minute as being one of the bidders and the company the Appellant recommended be awarded the contract. The 6th contract, on the other hand, did not recommend that it be awarded to TOD, but to the only bidder, Top, the owner of which was the Appellant's brother-in-law. Here, I agree with Mr McWalters that the only reasonable inference to be drawn is that Ronald Ho had not spoken to the Appellant at the time of the 5th contract and she was unaware that he knew of her relationship with TOD. However, by the time the 6th contract came up for consideration, she knew that she would be unable to arrange for any more work to be awarded to TOD and so, before she went on maternity leave, she arranged matters so that, should this project be contracted out, the recommendation would pass Ronald Ho's scrutiny and be awarded to her brother-in-law's company.

126. Frankly, I see nothing at all in Mr King' claims that the Magistrate misstated Sharon Ho's evidence concerning the date of her complaints to Ronald Ho and failed to consider and resolve material differences between their evidence as to the timing of each complaint and that he reached a speculative conclusion.

127. Given the limited purpose of their evidence, I also see nothing in Mr King's complaint that the Magistrate failed to resolve so called "material differences" over the content of Sharon Ho's complaints to Ronald Ho. It is well settled that a magistrate is not bound to make a finding on every issue that arises at trial, particularly when the issue is in context such a minor one as this is.

128. Neither do I find any merit in Mr King's third and fourth points that the Magistrate failed to consider properly the evidence of the Institute's Directorate Officers about what was required of an officer of Ronald Ho's rank upon receipt of complaints from subordinate staff and failed to consider why it was that Ronald Ho failed to take any action in relation to those complaints. The plain fact of the matter is that Ronald Ho failed to follow the counsels of perfection the Directorate Officers and the internal documents lauded. No doubt he preferred to enjoy a quiet life and was confident that he could handle the situation.

129. Neither can I see a basis in the evidence to support Mr King's contention that Ronald Ho had an incentive to misrepresent the true course of events. Clearly, he was an embarrassed witness; one who, both at the time of the events, as well as at trial, was conscious that if Sharon Ho's complaints were true they were serious ones which could reflect badly on his performance as unit head. And was as equally aware that when examined minutely his reaction to, and subsequent handling of, those complaints was inadequate. But that is a long way from substantiating a claim that he was patently prejudiced against the Appellant and was fabricating his evidence against her.

130. In respect of Mr King's fifth point that the Magistrate ignored the Institute's Directorate Officers' evidence relating to the treatment of bids that failed to meet specifications, there was evidence that the Appellant had received quotations from companies other than TOD and Top in respect of the 1st, 4th & 5th contracts. Each was for a lower amount than TOD's. Although the Appellant received each one of them, she never placed it on the appropriate Institute file and the ICAC investigators were unable to find them. The Appellant made no mention of these quotations in the minute recommending the company to which the contract should be awarded. The prosecution argued that the only reasonable inference to be drawn from this was that the Appellant had deliberately discarded each one of them in order to conceal from her superiors that there were quotations lower than TOD's.

131. In her video recorded interview the Appellant never sought to deny her acts in respect of these quotations. She said that she had excluded them for consideration in respect of the 1st contract because she knew the firms who had submitted the quotations were unable to provide the kind of service she required. Generally: she said that she concealed the lower quotations because the companies providing them could not provide the quality she wanted and, as she wanted to make the selection process simpler, disclosing them would have complicated things. She had done this because of time constraints. She accepted that she did not bring them to her superior's attention. That she should have revealed them to the management and was wrong to have concealed them. The result of her not disclosing them was that the Institute had been deceived. With hindsight she realized she should have informed her superior. She accepted that the result of her concealing them was that Ronald Ho would be deceived into thinking that the only quotations received were those referred to in her minute and that what she had done was unfair to the companies who had provided the quotations.

132. It is noteworthy that in her video recorded interview the Appellant made no mention of there being any problems with the quotations. The reason she gave for dismissing them was because the companies could not provide the quality of service that she wanted, which begs the question: if that was her real reason why did she ask those companies to submit a quotation in the first place? Neither was this the explanation she gave to Sharon Ho; for she never explained her reasons for concealing the existence of the lower quotations to Sharon Ho.

133. At trial, in cross-examination, Mr King sought to establish that there were problems with the quotations that rendered each one of them defective; and that there was no requirement that defective quotations be kept on file and referred to in the recommendation minute. He also relied on what the Directorate Officers and Ronald Ho had said about the treatment of quotations that failed to meet specifications. It was, however, the evidence of the Directorate Officers that all quotations, even those that failed to meet specifications, should be kept on file and brought to the attention of the Appellant's superior. And the Appellant in her video recorded interview recognised that concealing them was wrong and unfair to the bidders.

134. In respect of the possibility that the Appellant might have rejected the quotations because of problems with them, the Magistrate referred to the quotation submitted by a company called Marvel Mark in respect of the 3rd contract. According to Sharon Ho, the Appellant had asked her to clarify a point in relation that quotation and after clarification it was kept on file. There was also evidence that a company called Design Innovations had submitted a revised quotation in respect of the 1st contract. These matters led the Magistrate to conclude that that the missing quotations might not have been disqualified had enquiries been made to clarify them. Admittedly this finding runs counter to the Directorate Officers' evidence relating to the treatment of quotations that fail to meet specification, but it does reflect the realities of the situation, as spoken of in the evidence of Sharon Ho and Cheng Wing-han that enquiries were made of the bidders to clarify ambiguities in their quotations and even (as would appear from Cheng Wing-han's evidence) to ask them to reconsider the price they had quoted.

135. In the end result, the Magistrate rejected the Appellant's exculpatory explanation in her video recorded interview. After examining her conduct against the background of all the circumstances relating to each of these problem quotations, he came to the conclusion that she had received quotations that were lower than TOD's, discarded them, and then deliberately concealed their existence from her superiors in order to create the appearance that TOD's quotation was the lowest one received. He was of the view that she had done this dishonestly to ensure that TOD was awarded the contract. On the evidence before him he was clearly entitled to reach that conclusion.

136. The 1st & 2nd grounds of appeal fail.

3rd Ground of Appeal

137. In the 3rd ground of appeal Mr King says that the Magistrate failed to consider the salient points of the defence case on the issue of dishonesty. The "salient points" are said to be that he erred:

(1) in finding that the Appellant misrepresented the fact that TOD had shown the Institute a "very satisfactory portfolio of its products" and in finding that one had not been provided to the Institute;

(2) in drawing an inference of dishonesty from the evidence that the Appellant had on one occasion sought reimbursement by means of cash memos, when this was not relied upon by the prosecution in their opening and in concluding that the Appellant was seeking to hide the transaction from her superiors when the evidence shows that Ronald Ho later approved payment of the amounts in question to TOD without raising any query;

(3) in finding that the Appellant would he unable to give a credible explanation for the cash memos incident;

(4) in finding that the Appellant concealed TOD's identity;

(5) in finding that the Appellant took every opportunity to advance her husband's interests, by recommending TOD to Hily Kwok for her project when it was Hily Kwok's evidence that she had sought the Applicant's assistance; and

(6) after having said that he found what the Appellant said in video recorded interview to be true and reliable, in failing to give proper consideration to its exculpatory parts. Those exculpatory parts are; that she was motivated by a desire to achieve good results for her principal. That she did not consider that she was obtaining any advantage for anyone by her conduct. And that she had no intention of deceiving her principal.

138. The Magistrate dealt with the issue of dishonesty extensively at paragraph 91 of his Reasons. He relied on a number of matters in concluding that the Appellant had acted dishonestly. Some - the admissions in her record of interview, the cash memos incident and the discarded quotations - have already been discussed. The fact that Ronald Ho approved payment of TOD's invoices does not alter the fact that the Magistrate accepted Sharon Ho's evidence and found that the Appellant had attempted to obtain payment of them in cash via Sharon Ho.

139. In addition the Magistrate also had regard to the following five matters:

140. First, the Appellant's conduct in surreptitiously obtaining quotations from TOD for contracts they had not been invited to bid for and presenting them to Sharon Ho for her to make the recommendation, thereby creating the false impression that Sharon Ho had obtained and analyzed those quotations, identified TOD as the lowest bidder; and recommended that it be awarded the contract.

141. Secondly, the falsity of the minutes relating to the first contract which the Appellant wrote, but instructed Sharon Ho to sign.

142. Thirdly, the absence of any evidence that there was a portfolio of TOD's work (the Magistrate's alleged first error). Hily Kwok had said that she had seen two dummy design covers that TOD had done for a publication relating to defence systems. Dummy covers prepared for a particular project hardly constitute a portfolio.

143. Fourthly, the fact that she concealed her connection with TOD, (the Magistrate's alleged fourth error). His finding that she concealed this link appears to be unassailable. It was the prosecution's case that the only reasonable inference from the circumstantial evidence was that TOD was set up to enable the Appellant to arrange for contracts to be awarded to her husband. He already owned WCD and WCD had been awarded Government contracts, however it never submitted a quotation for work in the China Studies Unit, only TOD did.

144. Fifthly, the Appellant's manipulation leading to the 6th contract being awarded to Top.

145. I have already dealt with the issue of the Magistrate's treatment of the exculpatory parts of the Appellant's record of interview and it is unnecessary for me to repeat what I said. It has to be remembered that, as the Appellant chose not to testify at the trial proper, these explanations remained bare assertions untested by cross-examination. Given the weight of the evidence against her it is hardly surprising that the Magistrate gave them short shrift.

146. The test of dishonesty is well known. It is set out in the English Court of Appeal's decision in R v Ghosh [1982] QB 1053, where it was said:

"...a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider [the second question].

...the jury must consider whether the defendant himself must have realised that what he was doing was by [the standards of reasonable and honest people] dishonest."

147. In R v Roberts (1985) 84 Cr App R 117 the English Court of Appeal indicated that a full Ghosh direction would not be necessary unless the defendant raised the issue by, for example, suggesting that he did not know that anybody would regard his actions as dishonest.

148. In R v Price (1989) 90Cr App R 409 the English Court of Appeal, following Roberts, said (at p. 411):

"...it is by no means in every case involving dishonesty that a Ghosh direction is necessary. Indeed in the majority of such cases ... it is unnecessary and potentially misleading to give such a direction. It need only be given in cases where the defendant might have believed that what he is alleged to have done was in accordance with the ordinary person's idea of honesty."

149. Ghosh and the subsequent cases following its principles are accepted as representing the law in Hong Kong.

150. Frankly, there was overwhelming evidence in the prosecution's case that the Appellant acted dishonestly. As she chose not to give evidence at the trial proper, there was no need for the Magistrate to consider the second limb of the Ghosh test and neither she nor her counsel can complain that the Magistrate found her actions to be dishonest.

151. The 3rd ground of appeal fails.

4th ground of appeal

152. In the 4th ground of appeal Mr King says that the Magistrate failed to consider the evidence adduced by the Appellant which showed that TOD had submitted quotations, not only to other units within the Institute but also to other Government departments, had been the lowest bidder and met the specifications and did not secure each and every contract within the China Studies Unit.

153. It is apparent from the documents relied on (defence exhibits D44 and D45) that they are not addressed to the Appellant or Sharon Ho, but to Hily Kwok who worked independently from the Appellant on her own projects. It is true that Hily Kwok worked jointly with the Appellant on the second contract, but that was well before these two quotations were supplied. The simple point in answer to this ground of appeal is that there was no evidence that TOD was ever awarded a contract in which the Appellant had played no part in the contracting awarding process.

154. The 4th ground of appeal fails.

Comments upon the 1st to 4th grounds of appeal

155. Running through out Mr King's argument in respect of the 1st to 4th grounds of appeal is a misconception of what the law requires a Magistrate to do, both in assessing the credibility of witnesses and in preparing his Reasons.

156. As to credibility, there a number of cases, which, apart from saying that the trial magistrate is in a better position to assess credibility than an appellate court, provide guidance on the legal basis upon which an appellate court should approach an attack upon a magistrate's evaluation of evidence and assessment of a witness' credibility. Among those cases are R v R E Low [1961] HKLR 13, R v Muriel Georgina Leung Cr App 251 of 1992 (unreported), HKSAR v Lee Hon-shun Cr App 626 of 1999 (unreported), applied in respect of Magistracy appeals by HKSAR v Leung Win-kwong HCMA 341 of 2001 (unreported). The list is not exhaustive. I delivered the judgments in Lee Hon-shun and Leung Wai-kwong. The English case of R v Turnbull [1977] QB 224 (better known for its ruling on identification evidence) also provides useful guidance on the limits of an appellate court in determining issues of credibility.

157. The following principles can be distilled from these decisions:

(1) the trial magistrate is appointed to resolve issues of credibility as he, being the one who hears and sees the witnesses, is in the best position to do so;

(2) it is not for an appellate court to usurp his function and an appellate court will only interfere with a finding that depends on the credibility of a witness in the most exceptional of circumstances;

(3) the appellate court's interference is justified if it concludes that the magistrate took a perverse view of a witness or, having regard to the whole of the evidence, the magistrate's finding was unreasonable or irrational.

158. Stock J put the matter well in R v Muriel Georgina Leung, where he said, at page 6:

"Magistrates are appointed because they are considered competent to exercise the functions required of magistrates. Those functions include a heavy diet of fact finding, bringing to bear on each case their experience of human conduct, their intelligence and their common sense. They exercise their powers of assessment no less frequently than any other tribunal of fact. That is not to say that they are incapable of error. No one is infallible and it is the possibility of error, both as to fact and law, for which the appellate machinery is designed. I see no basis for any presumption that their powers of assessment are to be regarded with added caution. It remains the fact that he who has observed a witness is in a better position to assess credibility than he who has not."

159. In particular, on the issue of whether the Magistrate was right to accept Ronald Ho's evidence, Mr King attacked his statement at paragraph 86 of his Reasons where he said:

"I have considered with great caution the issue whether his (Ronald Ho's) credibility and reliability are tainted. I am satisfied that all of Ronald Ho's testimony can be accepted as truthful, but his lack of a written record and overburden with workload render his memory of that particular aspect unreliable when he fails to remember the exact date that he came to know of TOD's connection to the defendant. I am prepared to accept his entire evidence subject to this rider. The relevant legal principle is touched upon in Cunningham v. R. [1977] HKLR 302. In the recent case of FACC4/2000 Wong Pui Sham v. HKSAR, Mr Justice Silke NPJ expresses the unanimous view of the Court in such terms:

"It is the norm for a Court of Appeal, where it forms a doubt as to the reliability of a crucial prosecution witness's credibility and sets aside some of the convictions based almost entirely on the evidence of that witness, to consider whether such doubt also impacts on any remaining conviction which is also dependent on the credibility of that witness. (at P. 7 of the unreported case)"

160. Mr King says that the Magistrate misunderstood the effect of both of these cases. In Cunningham, in which the appeal was dismissed, the perjured evidence led at trial was found to be peripheral to the core issues in the case, which is not the situation here. And the passage from Silke NPJ's judgment in Wong Piu Sham deals with how an appellate court should deal with the remaining convictions after if finds other convictions reached after a trial unsafe, which again is not the situation here.

161. Mr King's criticisms may be correct, for I too fail to see the relevance of Cunnningham and Wong Pui-sham in the context of paragraph 86, but this point misses the real issue. In both Cunnningham and Wong Pui-sham the courts were dealing with witnesses parts of whose evidence had been demonstrably shown to be unreliable. Here the Magistrate accepted the bulk of Ronald Ho's evidence, but rejected parts of it as unreliable because of uncertainty. He went on to consider whether the fact that he found those parts unreliable impacted adversely upon his assessment of Ho's credibility to the extent that he could not rely on those parts he accepted to convict the Appellant. He concluded that it did not. In doing so he was doing no more than performing the function of the tribunal of fact in our system of justice. To require him to do otherwise would make mockery of the time hallowed direction to a jury that they may accept all, some, or none of a witnesses' evidence. That direction is just as much applicable as when there is one professionally qualified lawyer determining facts as it is when seven members of the general public are called upon to do so.

162. As to what must be in a Magistrate's reasons, or Statement of Findings as the Magistrates Ordinance terms it; s.114(b) of the Magistrates Ordinance provides no more than that it must contain:

"...his findings on the facts and other grounds of his decision."

163. It is well established that a Magistrate is not required to go into minute detail describing his thought process in respect of each and every item of evidence. He is required to show no more than that he is aware of the issues raised by the charges and the important matters of evidence raised during the trial. That he has taken those matters into account in reaching his decision and, where appropriate, has shown why he did so. He must also demonstrate that he has acted with care in dealing with evidence which may in some way be tainted, or unworthy of belief, for reasons developed either in the defence case, or which are manifest from the prosecution case itself.

164. In this case the Magistrate's Reasons run to 50 pages. They were delivered after a long adjournment and he had the benefit of detailed and comprehensive written submissions from both the prosecution and the defence counsel. The Reasons set out the charges, the legal issues, the evidence and the Magistrate's findings. He identified the two main issues: was Ronald Ho a credible witness? And was the Appellant's record of interview admissible? He was aware that the thrust of the defence's attack on the prosecution's case was aimed at Ronald Ho's credibility and that he needed to exercise great caution when considering this (see the much maligned paragraph 86 of his Reasons). In determining that Ronald Ho was a credible witness he took into account the Appellant's admissions in her record of interview, which he was perfectly entitled to do.

165. The thrust of the Appellant's case on appeal has been that his Reasons show that the Magistrate did not discuss and determine a number of matters and by reason of that failure, it must be taken that he did not consider them. That is not the correct approach to the issue. In R v Wong Kam-tong and Ors [1982] HKC 113, at page 117, Huggins VP said of the duty of a District Court Judge in preparing his reasons for verdict:

"While a judge must show in his reason for verdict that he has evaluated the evidence and must, therefore, deal with any major discrepancies, that does not mean that he must deal with all the inconsistencies relating to peripheral matters. Equally, it must not be assumed that he overlooked or ignored such inconsistencies we are entitled to assume, in the absence of indication to the contrary, that the judge had a grasp of the case presented to him. The fact that a judge's note omits part of the evidence is not to be taken as proving that he has ignored that evidence, particularly, where the points made appear in the record of counsel's submissions.

Some of the weaknesses in the evidence he did mention and he gave reasons for concluding that they were not fatal. It must be assumed that those weaknesses which he did not mention were, in his opinion, no greater barrier to his accepting the substance of the prosecution case."

166. In HKSAR v Chin Man-chung CACC 87 of 2000 (unreported) the applicant's counsel embarked on a similar exercise to that adopted by Mr King in this appeal, namely examing the transcript of evidence (which in this case runs to over 2,000 pages) with a fine-tooth comb in order to find as many differences as possible in the prosecution witnesses' evidence which the Magistrate failed to mention. In dealing with that approach the Court of Appeal said, at pages 6 to 7 of the judgment:

"It is appropriate, we think, for us to reiterate that it is not necessary for judges or magistrates to resolve in their Reasons for Verdict every single conflict in the evidence. They only need to decide those issues of fact which need to be decided in order to answer the ultimate question, which is whether the prosecution has proved each of the ingredients of the offence beyond reasonable doubt. That is not to say that peripheral factual issues never need to be resolved. What issues of fact need to be resolved in a particular case will depend on the circumstances of that case."

That reiteration, apparently, still needs to be made.

167. Mr King's final blow at the Magistrate's Reasons was that in writing parts of them he cribbed from the prosecution's written final submissions. At times the wording is similar, if not identical. There is nothing sinister in that; if the Magistrate found that a particular point made by the prosecution commended itself to him and was borne out by the evidence, there is, so far as I can see, no harm in him borrowing the prosecutor's words to express that point. The wrong would be for him to borrow those words without first satisfying himself that the point was properly made. Mr King would hardly have complained had it been his words that commended themselves to the Magistrate.

6th ground of appeal - alleged errors of law in the misconduct charges

168. As originally pleaded, this ground alleged that the misconduct charges were defective in that they did not include the ingredient of 'calculated to injure the public interest'. The Magistrate was said to have erred in failing to consider this as an ingredient of the offence and to have erred in finding the Appellant guilty of these charges when there was no evidence to support a finding that her conduct was calculated to injure the public interest.

169. However, by the time the ground came to be argued the Court of Final Appeal in HKSAR v Shum Kwok Sher [2002] 3HKC 117 (Sir Anthony Mason NPJ delivering the Court's unanimous judgment) held the elements of the offence to be: (a) a public official; (b) who in the course of or in relation to his public office; (c) willfully and intentionally (d) culpably misconducted himself. The Court of Final Appeal did not identify as an element of the offence the act being one that is calculated (by the accused) to injure the public interest.

170. The Court of Final Appeal held that there are two ways a public official can commit this offence - non-feasance or malfeasance. In cases of non-feasance, the offence involves a public official who, without reasonable excuse or justification for doing so, culpably misconducts himself by willfully and intentionally neglecting or failing to perform a duty to which he is subject by virtue of his office or employment. In cases of malfeasance the offence involves a public official who, with an improper motive and without reasonable excuse or justification for doing so, willfully and intentionally, culpably misconducts himself in exercising a power or discretion, which he has by virtue of his office or employment. This case quite obviously was a malfeasance case.

171. In both cases the mental element is willfulness - in the sense of knowledge or advertence to the consequences - as well as the intention to do an act (malfeasance) or refrain from doing an act (misfeasance). The conduct must be both willful and intentional.

172. The Court of Final Appeal also held that the misconduct complained of must be serious misconduct. Whether or not it is serious misconduct is judged by having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they served and the nature and extent of the accused's departure from those responsibilities.

173. His original ground of appeal having been denied him, Mr King argued that the particulars of each charge were defective as they pleaded that the Appellant had only acted "willfully" and not "willfully and intentionally". He also argued that the magistrate's analysis of the charges was insufficient, in that he did not address his mind as to whether the Appellant had misconducted herself both willfully and intentionally in the discharge of her duties. Finally he argued that what the Appellant did was not serious misconduct.

174. The first argument, with respect, misinterprets what Sir Anthony Mason had to say about this element of the offence in Shum Kwok Sher. Sir Anthony, after defining the elements of the offence and the ways it may be committed, said that the statement of the offence was subject to two qualifications, which he expressed as follows at page 140 (lines C-G):

"85. The first qualification is that, although the respondent submits that the misconduct must be either 'willful' or 'intentional', I consider that the misconduct must be willful' as well as 'intentional'. In R v Sheppard [1981] AC 394, the House of Lords considered a statutory provision which made it an offence 'willfully' to neglect a child in a manner likely to cause him unnecessary suffering or injury to health. By majority it was held that a person 'willfully' fails to provide medical attention for a child if he (i) deliberately does so, knowing that the child's health may suffer unless he receives attention; or (ii) does so because he does not care whether the child may need medical attention or not. In other words, 'willfully' signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act. Willfulness in this sense is the requisite mental element in the offence of misconduct in public office, most notably in cases of non-feasance. There is no reason why the same mental element should not be requisite in cases of misfeasance and other forms of misconduct in public office. For this reason 'willfully' and 'intentionally' are not employed disjunctively in the statement of the elements of the offence in the preceding paragraph."

175. It is clear from that passage that when the word "willfully" forms part of the elements of an offence, it includes within its meaning the accused's intention to perform, or refrain from performing, the prohibited act. As Sir Anthony put it: "... 'willfully' signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act." The particulars of each misconduct charge pleaded that the Appellant had acted "willfully" and in doing so, they pleaded all that needed to be pleaded in order to satisfy the Court of Final Appeal's judgment in Shum Kwok Sher.

176. Mr King's second argument revolved around paragraph 91 of the magistrate's Reasons. In that paragraph he considers whether the Appellant's failure to reveal her connection with TOD was "deliberate, dishonest and done with an intent to confer a benefit on her husband and (TOD)". Mr King submitted that the magistrate addressed his mind to elements of the offence, which simply are not there. "Deliberation" alone, he says, is insufficient to fulfill the mental requirement of the offence. It signifies no more than "advertence" and not "intent". And in Shum Kwok Sher the Court of Final Appeal referred to an intent to commit serious misconduct in relation to the public office the accused held, not to an intent on the accused's part to benefit himself or another. The intention of benefiting herself, or her husband, does not involve the Appellant addressing her mind either to the act itself, or to the role she was playing as a public officer, as it is directed only at the consequence. The intent to commit culpable misconduct in relation to her public office meant that the prosecution had to prove that the Appellant focused her mind on the elements of the offence and in particular on the public nature of the alleged offence (by which I take it that he means that she was aware that what she was doing was in the course of or in relation to her public office) and the serious nature of her misconduct. Further, says Mr King the particulars of offence of the misconduct charges fell into the same error as they too particularized the Appellant's intention as being "...the intention of improperly benefiting herself and her husband".

177. I do not agree. The particulars of offence of the misconduct charges alleged that the Appellant "...misconducted herself in the discharge of the duties of (her) office by willfully and without reasonable excuse or justification, and with the intention of improperly benefiting herself and her husband, dishonestly concealing..." (what she was alleged to have concealed). The elements of "willfulness" and "without reasonable excuse or justification" are pleaded along with the now otiose element of an intention to benefit herself or another.

178. It is true that at paragraph 91 of his Reasons the magistrate posed the question of whether the Appellant's conduct was "deliberate" rather than "willful" or "willful and intentional". However, I do not accept Mr King's contention that an act that is done deliberately is something less than an act that is done willfully because a deliberate act signifies no more than advertence and not intent. Words are given their ordinary meaning and according to the New Shorter Oxford Dictionary "deliberate" means:

"Carefully thought out, studied, intentional, done on purpose." (Emphasis supplied)

And "willful", when used in respect of an action, means:

"done on purpose: deliberate, intentional."

(Emphasis supplied)

179. For all intents and purposes the two words are synonymous and it is certainly not fatal to the conviction on the misconduct charges that the magistrate chose the word "deliberate" rather than "willful" when considering this element of the offence.

180. In paragraph 91 of his Reasons the magistrate analyses the evidence as part of his mental process leading to his conclusion that the Appellant's conduct was deliberately directed to a particular end; that end being the gaining of a benefit for her husband and his company, TOD. Although not expressly stated as such, for he did not have the benefit of the decision in Shum Kwok Sher at the time he wrote his Reasons (just as much as the prosecution did not have benefit of that decision at the time they framed the charges), it is a finding that Appellant's conduct was both willful and intentional. Remember how Sir Anthony Mason phrased this element in Sher Kwok Shum: "... 'wilfully' signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act". No one could rationally argue either that the Appellant was unaware of what the consequences of her acts were, or that she did not intend to do them. Just as much as no one could rationally argue that the end the Appellant sought to achieve by her acts amounted to an improper motive.

181. In respect of the 3rd argument, that what the Appellant did was not serious misconduct, I agree with Mr McWalters; it is nonsensical to assert that what the Appellant did is not serious misconduct. She misused her position as a civil servant dishonestly for personal gain. Her misconduct was the same, in principle, as Shum Kwok Sher's. Admittedly the amounts involved in this case are far less, but set against that it can be argued that her conduct was the more serious as it involved realized gains, via her husband, to herself whereas there was no evidence that Shum himself benefited.

182. The 6th ground of appeal fails.

7th ground of appeal - alleged error of law in the obtaining offences

183. This ground was argued on the basis that the prosecution case was that the Appellant, by deception and dishonestly, obtained for her husband an opportunity for him to bid for design or printing jobs. As this does not amount to an opportunity to earn remuneration in employment it cannot be regarded as a pecuniary advantage within the meaning of s.18 of the Theft Ordinance.

184. The relevant parts of s.18 of the Theft Ordinance provide:

"18 (1) Any person who by any deception (whether or not such deception was the sole or main inducement) dishonestly obtains for himself or another any pecuniary advantage shall be guilty of an offence...

(2) The cases in which a pecuniary advantage within the meaning of section is to be regarded as obtained for a person are cases where -

(c) he is given the opportunity to earn remuneration...in an office or employment".

185. In R v Callender [1993] QB 303 the English Court of Appeal held that the meaning of the phrase '...opportunity to earn remuneration...in an office or employment' in s.16(2)(c) of the English Theft Act 1968 (the equivalent of our s.18(2)(c)) was not confined to the narrow limits of a contract of service, but was to be construed in a wider sense as a matter of ordinary language and that accordingly the provision of services by a self-employed accountant was properly described as "employment" within the meaning of s.16(2)(c).

186. Mr King in advancing this ground placed reliance on R v. McNiff [1986] Crim L R 57 (CA). In that case the appellant wanted to be a publican. He required a justices' liquor license before he could run a public house and thus earn remuneration from doing so. Before he could apply for the license he needed to first obtain a provisional tenancy of the public house in question from the brewery that owned it. In applying to the brewery for the tenancy he misstated his date of birth and his real forenames, and claimed, falsely, that he had no criminal convictions. He was granted a tenancy to take effect on his becoming the holder of the justices' licence, which he subsequently obtained. It was not disputed that the provisional tenancy would not have been granted had the brewery known of the appellant's previous convictions. The appellant appealed against conviction on the ground that what had been obtained was not a pecuniary advantage within s.16(1) of the Theft Act 1968, since a tenancy was not an 'office' or 'employment' within s.16(2)(c) of that Act. The prosecution submitted, among other things, that the holder of a justices' licence holds an office and that by his deception the appellant obtained the opportunity to apply for that office and thereby to earn remuneration from the exercise of it. In allowing the appeal the English Court of Appeal held that (1) the appellant was the tenant or prospective tenant of a tied house; without more, it could not be said that such a tenant holds an office. (2) (assuming that the holder of a justices' licence holds an office) the opportunity to apply for an office in which remuneration will be earned is not equivalent to an opportunity to earn remuneration.

187. Here, it was not the prosecution's case that the Appellant was doing no more than obtaining for her husband an opportunity for him to bid for contracts from the Institute. That opportunity always existed. He was perfectly entitled to bid for any contract he wished. Indeed any contract he bid for could be properly awarded to him so long as his relationship with the Appellant was made known and she withdrew from the contracting out process. Section 18(1) clearly provides that the obtaining of the pecuniary advantage may be for someone other than the one who practices the deception. The prosecution's case was that by deception, and dishonestly the Appellant ensured that her husband would be awarded the contracts by making recommendations in favour of his firm and manipulating the tender process in order to ensure that its quotation appeared to be the lowest. In the process of doing so she concealed the conflict of interest that existed from her superiors. This was the basis on which she was convicted as may be seen at paragraph 104 of the Reasons.

188. McNiff is distinguishable; in that case what the accused's deception obtained for him was a provisional tenancy, which did not give him the opportunity to earn remuneration. In this case the link between the deception and the opportunity to earn remuneration is more direct. The deception did not provide the Appellant's husband with the opportunity to bid for contracts - it actually caused him to be awarded them.

189. The decision in Callender removes any doubt that the Appellant's husband's provision of design services, either personally or through TOD or Top, fell within the ambit of s.18(2)(c), being an opportunity for him to earn remuneration in an employment.

190. The 7th ground of appeal fails.

The impact of the Magistrate's findings on the charges

191. The 10th charge (an obtaining charge) alleges that the offence was committed "on or about the 26th August 1999". It particularizes only one deception namely that the Appellant omitted to inform her superior of the conflict of interest. In view of the Magistrate's finding at paragraph 84 of his Reasons that Sharon Ho first told Ronald Ho of a connection between the Appellant and TOD in early August 1999, the prosecution cannot say that his lack of knowledge of that connection operated on his mind when he approved the award of the contract to TOD at the end of August. Mr McWalter's conceded this in the course of argument. The Appellant's conviction on the 10th charge must be quashed.

192. The 12th charge, also an obtaining charge, in which the date of commission is given as "on or about the 4th September 1999", particularises two deceptions: (1) the Appellant's omission to inform her superiors of the conflict of interest and (2) her false representation to them "...that a quotation received from TOD Promotions was the lowest quotation received in respect of the said contract". Only one of these particulars needed to be proved in order to convict. Given the Magistrate's findings in respect of the problem quotations, this conviction can stand.

193. The misconduct charge also are unaffected by the Magistrate's finding on this issue. Those charges focus on the Appellant's conduct. So long as she believed that Ronald Ho was unaware of her connection with TOD, then his actual state of knowledge of that connection is irrelevant. It matters not to the validity of those charges that he may have known of the conflict of interest from early August, for the Appellant did not know that he knew of it at that time.

Decision

194. For the reasons given, the Appellant's appeal against conviction in respect of the 10th charge is allowed. Her appeal against conviction in respect of the remaining charges on which she was convicted is dismissed.