THE QUEEN v. SIU HON SUM

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J U D G M E N T

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Silke, V.P.:

1. This is the judgment of the Court.

2. Siu Hon Sum – "The Applicant" - appeared for trial in the District Court before His Honour Judge Caird on a Charge Sheet which contained eight charges. Charges 1 and 2 alleged a corrupt giving contrary to section 3(2) of the Prevention of Corruption Ordinance, Cap.215 - "the Old Law". Charges 4, 5, 6, 7 and 9 alleged an offering of an advantage contrary to section 4(1)(a) of' the Prevention of Prevention of Bribery Ordinance, Cap.201 – "the New Law".

3. Charge 3, brought under the old Law, alleged a corrupt giving and related to one Thomas Crosbie- "the Crosbie charge".

4. The Applicant was convicted on the 1st, 2nd, 3rd, 4th, 5th and 6th charges. He was sentenced to a total period of two years and nine months' imprisonment and fined $350,000. He now seeks leave to appeal against those convictions and, if necessary, sentence.

5. The main thrust of the grounds of appeal argued before us by Mr. Du Cann, with him Mr. Hampton - neither of whom appeared at trial - was the conduct of the leading counsel who did. This, it is said, led to material irregularities sufficient to cause a miscarriage of justice. The allegations are contained in grounds A and B. Ground F, headed "Specific Grounds", depends in its sub-grounds 1 and 2 upon the result of the main granted A and B. Its sub-around 3 depends upon a further ground H entitled "Material Non-disclosure of Document". This last refers to the alleged non-disclosure by the prosecution of an initial immunity - "the Needham immunity" - granted to the witness Ling Koo Sheng whose evidence has relevance to charges 1, 2, 4, 5 and 6.

6. The rest of the grounds were abandoned.

7. The replacement of the Old by the New Law occurred on. 14th flay 1971.

History

8. In the 1960s, the Applicant was sole proprietor of a firm, On Lee Construction Company - "the company". The company had Grade C Public Works Department status and was concerned with the construction of Low, Cost Housing developments to Government specifications. The company not itself employ any construction workers, sub-contracting all parts of the development. It kept on site watchmen, a site foreman and some four other persons in a site office. The developments of particular concern to us were at Homantin, Kwai Hing and Lai King Estate. Apart from the third charge, which alleged a date between 1st November 1968 and 14th May 1971, but which in evidence narrowed down to Christmas of 1968, the other counts spanned a period between February 1970 and 31st December 1975 relative to the construction of Homantin and Lai King.

9. In 1985 complaints concerning the condition of Low Cost Housing blocks, distributed throughout Hong Kong attracted Widespread publicity.

10. In 1977 there was a general amnesty proclaimed in respect of corruption offences prior to that year. However, section 18A of the Independent Commission Against Corruption Ordinance, Cap 204 provides, inter alia, that the Commissioner could be directed to act in relation to matters prior to that date if they concerned an offence which the Governor considered sufficiently "heinous" to warrant action. Sub-section (2) of section 18A reads:

"A certificiate under the hand of the Chief Secretary stating the fact that the Governor considers an offence sufficiently heinous to warrant action shall he conclusive evidence of that fact."

11. Such a certificate was issued on 21st stating that the Governor, having been appraised of the facts related to the construction of Government Low Cost Housing and Resettlement Estates, and in particular to 26 named housing blocks, considered that those facts disclosed suspected of offences of corruption which were sufficiently heinous to warrant action by the Commissioner in accordance with his powers and duties under section 12 of the Prevention of Bribery Ordinance.

12. The Commissioner, in 1986, did investigate and take action. Those investigations, some of which took place in Canada, eventually led to the arrest of the Applicant on 1st April 1987. The made an appearance in Central Magistracy on 3rd November of that year and on 27th November, the matter having been transferred for hearing in the District Court, the Applicant pleaded not guilty to charges 1 to 6. The Charge Sheet upon which the Applicant was eventually tried is dated 11th February 1988. On that day an application was made in open Court to consolidate the two sets of charges, the 7th and 8th charges being added to that which became the final Charge Sheet. This was done without objection and the hearing date of 22nd February 1988, which had been already arranged was confirmed but, as the trial judge noted, subject to any application by leading counsel.

13. We would interpolate here that leading counsel whose conduct it is sought to impugne was referred to throughout the hearing as "leading counsel", his junior as "junior counsel" and the latter's pupil as the "pupil". The then "instructed solicitors" were also so designated. We shall continue to use those expressions throughout this judgment.

14. After his arrest, the Applicant retained the first solicitors firm. Later, that firm was replaced by a firm a member of which was the Applicant's daughter, Sylvia Siu, and she had conduct of the proceedings. In December 1987, there was yet another change and the instructed solicitors were retained. They received the case papers from either the Independent Commission Against Corruption - "the Commission" - or from "the daughter's firm. Junior counsel was retained and he first saw the Applicant about - January 1988. ''Leading counsel was retained and he first met the Applicant in conference - "the first conference" - on 13th February 1988. No written instructions were given to leading counsel. The original papers received by him consisted of the documents and statements of the case for the prosecution. There were no defence papers. No proof of evidence was taken form the Applicant until 11th February 1988 when a part proof was taken by junior counsel. We have seen a typed copy of that proof which relates mainly to the 7th and 8th charges and to matters general to the Applicant. It was not completed as the Applicant was tired and it was never further proceeded with. Either at the first conference or shortly thereafter leading counsel received that unfinished proof.

15. In short it was the Grown’s case that the Applicant had on numerous occasions, the charges were stated and accepted to be sample charges, paid Ling Koo Sheng the sum of $10,000, Ling had first been employed by Government in 1960 as a Clerk of Work II.  In 1969, he was promoted to Clerk of Works I and to Chief Technical Officer. From the 1960s until the early 1970s, he was employed on Government Low Housing Estates. These included Homantin and Lai King. He was a self-confessed corrupt accomplice. He gape evidence under immunity. The immunity produced to the Court was granted to him on 10th July 1987. It was accepted that the Homantin development began on 1st October 1970 and had a certified completion date of 11th March 1973.

16. Homantin was not an estate specifically named among the 26 in the Chief Secretary's certificate.

17. It was Ling's evidence that the Applicant visited the Homantin site irregularly probably about once or twice Per month. He started to give him money after the commencement of the work. This occurred once in two or three months and on each occasion was in the sum of $10,000. Not surprisingly, Ling kept no record of these payments. Payments of this kind were common practice in other estates and among other contractors. Ling admitted that he had also been paid by the sub-contractors on the estates. These payments were made through his foki. He did not know the names of those sub-contractors but knew of their nature such as carpenter, concreter, drainage man and plasterer. On the Lai King site he was paid through Lee Park Ming on behalf of the Applicant.

18. At Homantin Ling said that the Applicant had spoken to him and asked him that, whenever he supervised work, he should just "make things easier". Ling understood this to mean that the Applicant wanted him to make things easier so the development work could proceed more rapidly. He stated, there being a target date for completion, that:

"If we would finish before target date I would have thought he would be able to make much more profit."

There were many ways by which delay could be avoided and he gave as examples, not intended to be exhaustive, speeding up the work by getting a subordinate to make an immediate inspection of reinforcement and then to report later to the structural engineer when he came to the site for a further inspection after inspection concreting could begin, holding up the inspection could cause delay; there could be the immediate inspection of drainage, again avoiding, delay.

19. A further element was the testing of concrete, this was done by concrete test cubes or cores which were sent to the P.W.D. technical laboratory for testing. When we come to the evidence of Lee Park Ming (PW3), the main witness on charges 7 and 8, upon which charges the Applicant was acquitted, we shall deal with this aspect in a little more detail for there was a straight forward conflict as to the methods wised as between Ling and Lee.

20. Delay could be avoided also in the necessary replacing of formwork - that is a form of casing into which the concrete was poured. For if that contained too many cracks the concrete ouzed out and reduced the concrete strength. If the Applicant were not to be asked to replace the rotten formwork and to remedy cracks in it he could save time and money by simply carrying out remedial work with the formwork in place. It was Ling’s evidence that he asked the Applicant to carry out such remedial work. It was not carried out to his satisfaction but he let it go because of the money which he had received.

21. Charge 7 related to payments made to one Ho Po Hong, also a Clerk of Works, and charge 8 to those made to William Wai, yet another Clerk of Works. It was the Crown's case that these payments were made through the means of an agent of the Applicant, Lee Park Ming (PW3). Lee had been an employee of the Company for about thirty years, first as a site foreman and later as general foreman. At his retirement in l986, he held the post of Project Manager. He also was a confessed corrupt accomplice testifying under immunity.

22. If Lee's evidence were believed, it shoved corrupt payments made by him to a number of persons including Ling and at the direction of the Applicant. There was a conflict between Lee and Ling on the payments to Ling. In that Lee said that he made the payments to Ling, whom he knew, at Homantin and Ling had said that those particular payments were made to, him direct by the Applicant.

23. On the matter of the concrete test cores, it was Ling's evidence that the concrete mixture at Homantin should have been 1:6 but he believed it to have been 1:8. He did not act upon his belief of below strength concrete because he has received money from the Applicant. He had not assisted the Applicant but he suspected using hindsight, that the concrete test cores, set up and then supervised by the P.W.D Work Supervisors on site, had been substituted in some way before they got to the laboratory. He described the concreting works at Lai King, as being better than those at Homantin for, at Lai King, there was a random selection of concrete blocks for examination. The random system was only in operation at Homantin when that development was nearing its completion. Lee said that at Homantin false test cubes were made on site, that is test cubes made up to the specified strength, which were then sent to the laboratory. No test cubes were taken from the actual concrete laid. This suggested at the least that assistance had been given to the Applicant on site.

24. The trial judge stated in his comprehensive and clear Reasons for Verdict, to which Mr. Du Cann generally takes no exception categorising them as excellent, that he disbelieved Lee. He did believe Ling. Therefore the inherent_. Conflicts as between Ling and Lee fell away.

25. On the 3rd charge - "the Crosbie charge" - the evidence came from Thomas Crosbie who had come to Hong Kong and Government employment Some six months Prior to Christmas of 1968. He dealt with the contract documents relating to the Kwai Hing Estate. He Prepared interim certificates in respect of works done about twice Per month. It was part of his duty, to go to the construction sites and he met the Applicant. Prior to Christmas of 1968, the Applicant was on site and asked Mr. Crosbie for a lift into town. He was given a lift to Kowloon, Mr. Crosbie being on his way to the car ferry. Before the Applicant got out of the car he put something into Mr. Crosbie's pocket. The witness was not aware at that time what that was but very shortly after he checked it and found it was an envelope containing a "few hundred dollars". He could not recall the amount but that seems at trial to have soldified into a sum of $300, possibly because the particulars of charge referred to an amount in that region. The witness assumed this to be a Christmas gift, a General practice known to him in England but one which was confined to bottles of spirits wines or cigars and the like. He telephoned the Applicant the following morning and told him that he wished to return the money and to go to the "Applicant’s office for this purpose. This the Applicant did not wish and a restaurant meeting was arranged. There the money was returned. The Applicant asked Mr. Crosbie not to report it and this was agreed. The conversations carried on between them were in English. There was no further attempt to give Mr. Croshie money.

26. This witness was clearly not an accomplice and was not corrupt. He was not, as it was not necessary, given any immunity.

Leading Counsel's Conduct

27. Affidavits and affirmations - "the affidavits" - some couched in emotive terms, have been placed before us. These were made by Junior counsel, the pupil, the instructed solicitors the Applicant's wife, his daughter, his son and the Applicant himself. Further we have seen a letter and an affidavit from leading counsel have considered all, for this is a matter which needed to he investigated, and consideration of statements, given that the facts are accepted, was a course adopted in many of the authorities given to us.

28. It is accepted fact that: (1) leading, counsel advised the Applicant in strong terms to admit the payment to Crosbie and that there should be no attempt to discredit him; (2) leading counsel expressed himself strongly against attempting to contradict the prosecution's experts report on the concrete strength of Homantin - "the McNicholl Report"; (3) in the first conference leading counsel had expressed an incorrect view of the law in stating it as his opinion that no presumption of corruption arose under the Old Law; (4) this error was not corrected although leading counsel himself became aware of the existence of the presumption prior to the start of the trial;  (5) there his some controversy as to the basis of the Applicant's decision not to give evidence but it is accepted that he made this decision himself on advice.

29. A further matter - the "Needham immunity" - did not concern the conduct of leading counsel. It is alleged that a form of immunity granted to Ling in Canada on 14th August 1986 was not drawn to the attention of either leading counsel or the Court by the prosecution.

30. Leading counsel's tactical approach to the trial, which he explained to the Applicant, was to seek to destroy the credibility of Ling and Lee, for in respect of them there was ample ammunition for the purposes of cross-examination. He took the view that he could not do the same in respect of Croshie whose evidence - and he and the Applicant had, among others, the Witness statement of Crosbie - he considered unlikely to be shaken and he had no ammunition. He thought he could persuade the trial judge to take the view that the Crosbie payment was de minimis and non-corrupt being mere Christmas gift.

31. It is an interesting foot-note to the advice given on the Crosbie payment that it was not until the New Law that custom was specifically stated not to be a defence to charges of this nature.

32. Further, leading counsel was firmly convinced that the trial should not be turned into a "building enquiry". It would "muddy the waters". He considered that, while the state of the concrete had given rise to the initial investigation which led to the charging of the Applicant, the thrust of the Crown's case was outright bribery. The state of the concrete was but one of the factors relating to this. Therefore he urged against the calling of expert evidence contra the McNichll Report and, in the course of the trial, placed before the Court by agreement a seventeen page Precis of that Report - a course of action which, if nothing else, had the estimable effect of considerably shortening the proceedings.

33. It has not been suggested in the course of this hearing that the precis in any way misrepresented the contents of the full report. The Applicant however complains that he was never shown it before its introduction into evidence and that no Chinese translation was provided.

34. It is the basis of this application that leading counsel was derelict in his duty to the Applicant in that he exerted undue pressure upon him, held no "proper" discussions with him, failed to give him "proper" advice on his giving of evidence and, in respect of this last point and with relevance to the general issues raised, incorrectly advised him on the law. All these submits Mr. Du Cann, either separately or combined amount to negligence of such high degree as to exhibit a radical failure by leading counsel in his conduct of the defence. This occasioned a miscarriage of justice rendering the convictions of the Applicant unsafe and unsatisfactory. In the alternative these matters, cumulatively, must engender in the mind of this Court a lurking doubt of sufficient strength to bring us to the conclusion that justice has not been, or been seen to be, done and to give us seriously to consider whether it would be right to allow the convictions to stand.

35. The grounds of appeal state the situation thus:

"A.    The Appellant was deprived by his Counsel at trial (leading counsel) of the opportunity of making a free and informed choice as to:

1. giving evidence at his trial and,

2. tendering expert evidence in particular, as to the composition and condition of concrete in buildings for which the Appellant as contractor had been responsible at Homantin.

B. Similarly, the court of trial was deprived of hearing relevant evidence which might have been given at trial. by.

l. the Appellant and,

2. any expert witness as to the composition and condition of concrete used in buildings at Homantin for which the Appellant as contractor had been responsible, as a result of which there was a material irregularity in the trial whereby the convictions of the Appellant are unsafe and 'unsatisfactory."

36. Essential particulars were set out in Parts C and D of the grounds.

The Law

37. The authorities which are relied upon, and of which there appear to be a growing number in recent years, as to the duty of counsel to his lay client cover issues arising in this jurisdiction, the United Kingdom and New Zealand.

38. In order of appearance: Mabel Lee v. The Queen [1963] HKLR 791, a Magisterial Appeal. There Huggins J. (as he then was), though no authorities were cited to him, thought, when considering a complaint that through solicitor's negligence the appellant had not had a fair trial, the ground to be misconceive. He said at P.800:

"I can think of no more dangerous precedent than to hold that negligence of an advocate can invalidate a trial. And I am not a little surprised that the proposition should be seriously advanced."

39. In Turner (1970) 54 Crim.App.R. 352, the duty of judge and counsel in the course of a trial was in issue. Turner was the "plea bargaining" case in which Lord Parker L.C.J., delivering the judgment of the Court, set out, at Page. 360 guidelines on plea bargaining which began by stating that counsel must be free to do what is his duty, namely to give the accused the best advice he can and if need be, advise in strong terms. He went on that the accused, having considered counsel’s advice, must have a complete freedom of choice whether to plead guilty or not guilty.

40. Paragraph 156A of the Code of Conduct for the Bar in England and Wales, which is pari materia to the Code in respect of the Bar in Hong Kong, reads:

"Every accused person has the right to decide Whether to give evidence in his own defence. A barrister may properly advise his client upon this but it is the accused himself who must make the decision." (Emphasis supplied)

41. The effect of Turner, said Mr. Du Cann, is that there must be no undue influence brought upon an accused and he seeks to illustrate the word "properly" by reference to the words of Parker, L.C.J. paraphrased above.

42. In Keung Ping Kai v. The Queen [1981] HKLR 239, the direct issue of counsel's negligence arose. The headnote, and we think this to be sufficient to indicate the view the Court took of the principles underlying such an issue, reads:

"Held:

1. If counsel is found to have  been guilty of gross negligence in the conduct of a criminal defence, there may be occasions when by reason of such negligence, which must be of a high degree the defendant was so Prejudiced that it would be said that he had not been accorded a fair trial .......

2. If counsel conducts a case in a manner with conflicts with his instructions, it is to be assumed, in the absence of evidence to the contrary, that he acted in accordance with his own assessment of the best way in which to conduct the case on behalf of his client. It is not for the courts for the courts to substitute their Judgment on how a case should he conducted, for that of counsel."

The appeal there was dismissed.

43. In Pointon [1984] 1 CRNZ 348, the New Zealand Court of Appeal took the view that a miscarriage of justice may arise in rare cases where there have been radical mistakes made in the conduct of the defence. It was considered that it was not-necessary to show negligence on the part of defence counsel; miscalculations_. might be made the cumulative effect of which rendered the trial unsatisfactory. They were found to exist there. But Cooke J., delivering the judgment of the Court, went on at p.352:

"A mere mistake in tactics in the conduct of the defence does not of course afford ground for a new trial.

This Court has to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel. An accused who has acquiesced in his counsel's advice not to go into the witness box himself or not to call other witnesses will usually have great difficulty in showing any miscarriage of justice on that account."

And at page 353:

"Miscalculations can occur for which counsel perhaps making tactical decisions under pressure, is not necessarily to be criticised. Nevertheless they can force an appellate Court to treat the trial as unsatisfactory."

44. In The Queen v. Peter Liu Po Sing [1986] HKLR 198, a decision drawn to the attention of counsel by the Court - missed by them because the headnote makes no mention of a passage at page 203 which is the only one of relevance here - Sir Denys Roberts, C.J., who delivered the judgment of the Court, made reference to a ground of appeal which, in effect, asked the Court to decide whether the advice given to the applicant at trial or the advice given to him by counsel then representing him on the appeal was the better, and said:

"This is something which we decline to do. It is not for this court to attempt, with hindsight, to pass judgment on the worth, of the advice given by counsel or solicitor representing a defendant at his trial, or to interfere with a conviction merely on the ground, even if this were established to have been the case, that the defendant had not at his trial, received advice and representation of a sufficient quality."

No authorities were cited.

45. In The Queen v. Cheung Chi Ming, [1988] HKLR 431, in which the judgmen to the Court was given in August 1986, Kempster, J.A. began with these words:

"Every so often Courts in Common Law jurisdictions are invited to entertain Appeals or applications for leave to appeal against conviction based on the alleged incompetence or dereliction of duty on the part of advocates and legal advisors. Sometimes they appear to be unmeritorious grounds of last resort and at others the expression of deep and genuine grievance. Statements of principle as to when the appellate court will and when it will not intervene are few an far between and not readily reconcilable."

There Pointon, Keung Ping Kai, McCarroll v. H.M. Advocate [1949] SC(J) 10, R. v, Dennel (1817) 12 Cr. App.P. 49 and Rattigan (Transcript: English Court of Anneal No. 67/C3/84) were cited. Kempster, J.A. at page 433J commented:

We would suggest that by the words 'gross negligence' the Court in Hong Kong, like the Court in New Zealand, [Pointon] meant mistakes so radical as to give rise to a miscarriage of justice. 'Everyone is doubtless expected to have a standard of peritia artis afforded to him. It could never be said that all are entitled to the pinnacle of the most perfect pleader imaginable' per Lord MacKay in McCarroll..... "

46. The application there was considered to be an "unmeritorious ground of last resort."

47. We have had the benefit of the full transcript of the judgment of Taylor, J. who delivered the judgment of the Court in R. v. Gautam, (case No.5519/B/85 Court of Appeal, England) reference to which appears in [1988] Criminal Law Review at page 109. Taylor. J. referrer to Irwin now reported, as it was not then, in (1987) 85 Cr.App.R. 294 and [1987] 2 All E.R. 1085 and of it said at page 8 of the transcript:

"There an appeal was allowed and the conviction quashed because counsel had, without instructions from his client, declined to call alibi evidence. We have not seen, as I say, the full transcript of the judgment. It may be that in the particular circumstances of that case what happened could he described as a material irregularity. However it should be clearly understood that if defending counsel in the course of his conduct of the case makes a decision, or takes course which later appears to have been mistaken or unwise, that generally speaking has never been rewarded as a proper ground for an appeal."

48. We would interpolate here that Irwin has been cited to us. With respect, we adopt that which was said by Taylor, J. in relation to it. In this jurisdiction, Lau Chun Biu Criminal Appeal No.613 of 1987 (unreported), in which the judgment was given on 20th June 1988, was also drawn to our attention. Both of these cases depended on their own very particular circumstances - Lau Chun Biu used the expression "the very particular facts". We do not find either decision to be of great assistance here.

In Gautam, Tayler, J. went on at page 9:

"…… when a defendant at a trial, puts the case in the hands of counsel and counsel properly discusses the matter with him, it is not open to him to come to this Court and say, 'I now want an opportunity to run a different defence, because the defence which was initially discussed, was not run at the time and now I want an opportunity to run it'". (Emphasis supplied)

Mr. Du Cann again emphasises the use of the ward "properly".

49. Mr. Du Cann has also provided us with the transcript of the judgment delivered by O'Connor, L.J. in R. v. Swain (Case No.2282/D/86 Court of Appeal Eng unreported). The complaint there was that counsel had embarked on a line of cross-examination of a police officer which had the effect of letting in hearsay evidence which was damaging to the appellant. O'Connor, L.J. made reference to Gutam, of which he had "The Times" report, and said at page 4:

"It is established that if defending counsel lets in evidence at the trial it is not a ground of appeal.

He then want on to consider in great detail that which had taken place at the trial and said at page 11:

"There is no doubt, and we have sympathy for the appellant, that on the face of it he was done no service an this topic by counsel he was appearing for him and defending him. Inevitably, although it is not a ground of appeal, if the court had any lurking doubt that he might have suffererd some injustice as a result of flagrantly incompetent advocacy by his advocate, then we would seriously consider as to whether it would be right to allow the convictions to stand. Indeed we would quash them."

50. So - an applicant who relies upon dereliction of duty on the part of his advocate and legal advisor as a ground of appeal must have a genuine sense of "grievance engendered by a clearly shown very high degree of negligence on their part so radical as to give rise to a miscarriage of justice or, at the very least, to arouse in the mind of an appellate court a well founded feeling that the convictions should he quashed'.

The allegations

51. Leading counsel was faced with a difficult case. Prior to the first conference, junior counsel has been supplied with the names of some sub-contractors whom it was thought could give evidence favourable to the Applicant. He had, surprisingly, taken proofs from them himself. These men were not however prepared to give evidence without an immunity which, of course, was something the defence could not provide. Leading counsel used their names in the course of the cross-examination of Ling, suggesting instances of payment to him by them. He denied these instances. This was in line with the defence foreshadowed in the conferences that all the corrupt Payments were sub-contractors Payments made on their own behalf and none were by the Applicant.

52. Leading counsel accepts that, when he was considering the manner in which the defence should be conducted, he was under a misapprehension as to the existence of a presumption in the old Law. Section 11 of Cap. 215 did contain a presumption, narrower in terms than the presumptive section in the New Law. When he gave what he accepts was strong advice to the Applicant - that he should admit the payment to Crosbie while maintaining his plea of not guilty members of the Applicant's family were present. This advice upset them. His daughter burst into tears and was told by leading counsel not to be silly. No decision was made. It was suggested that the Applicant go away and think it over.

53. The calling of contra-export evidence was considered at both the first conference and at its resumption on the 15th.

54. Junior counsel had, prior to the first conference, suggested that expert evidence be obtained in an attempt to contradict the McNicholl report. It was suggested that a Mr. Peter Ellen, who was in fact known to leading counsel for he had called him as a witness in a successful defence to a building enquiry, be called by the defence. The Applicant's son had been in contact with Mr. Ellen in the Antipodes and has sent him, by courier, the McNicholl report. Before the resumption on the 15th, Mr. Ellen had confirmed to the son that he considered there were many flaws in that report but there was nothing in writing from Mr. Ellen at that point.

55. On this again leading counsel accepts that he gave the strong advice indicated. Mr. Du Cann suggests that concrete and its strength was an essential element of the Crown's case and that the views expressed by leading counsel were, at least, a misjudgment.

56. On the 15th leading counsel's advice on the admission of the Crosbie payment was accepted as was, reluctantly, the advice he gave on the calling of an expert. The affidavits we have before us place shades on the manner in which the admission was conveyed to leading counsel, but the fact remains that the Applicant did admit the payment to Crosbie without qualification. Leading counsel was not told what has been asserted before us, namely that this admission was false.

57. Leading counsel then put that particular matter out of his mind until trial.

58. He is unsure as to when his misapprehension as to the existence of the presumption in the Old Law was first cured. He is satisfied that it was some time before the trial itself and it is clear by the manner in which he handle, Crosbie and from the detailed, succinct, and clearly helpful, written submissions he made to the trial court that this was so. He is firmly of the view that even if he had been aware of the presumption at the time of the first advice to admit he would have given precisely that same advice.

59. Mr. Du Cann lays great emphasis upon leading counsel's initial error and his failure to correct it timeously or at all. First he suggests that its making prevented the discussions at the first two consultations from being "proper" in the sense use by Taylor, J. in Gautam. We disagree. The advice as a whole was sound and careful. The error crept in as a comparatively small part of the reasoning. It was peripheral and in no way affected the validity of the advice.

60. Secondly Mr. Du Cann asserts that counsel is under a duty to correct any error he makes at the earliest possible moment. As a counsel of perfection that may be true. But whether any particular failure can constitute a breach of duty depends upon the circumstances and especially upon the materiality of the error any the consequences. This error was miner, and we cannot see that any misapprehension of the law by counsel could have altered the unqualified factual admission made by the Applicant. It would be a different matter if the misapprehension of the law were to relate to a set of facts which might be viewed in one light if the law were this and in another if the law were that. But this is not so here. Either the payment was made or it was not. To that the presumption has no direct relevance.

61. At trial a precis of the McNicholl Report, of which the Applicant had the entire, was put in without further consultation with the Applicant. And of this, as we have said, the Applicant complains but with little justification. He had agreed that Ellen should not be called. McNicholl was a Crown witness. The use of section 65B of the Criminal Procedure Ordinance was a proper one.

62. Though the prosecution wished to ventilate the matter of the concrete in view of the public concern which had earlier been expressedas to the standard of the buildings on the various Low Cost Housing estates in Hong Kong, Homantin was not a named estate. The final paragraph of the precis concluded thus:

"I have been asked if these deficiencies affect the safety of the blocks at Homantin. My opinion is that the safety of the blocks at Homantin is not a matter of concern because there are sufficient margins of safety in the original design to compensate for the non-compliance with the specification."

63. We do not accept that the concrete deficiency was a vital element in the Crown's case. It was one of the many factors involved in the paid "blind eye" Nowhere in his Reasons for Verdict did the trial judge consider the McNicholl report to be corroborative of the accomplice evidence. He found expressly that there was no corroboration at all in the Crown's case.

64. Counsel must be able to hold a case within his own hands and, having given the best advice he can and which he thinks proper in the circumstances, once that advice has been acquiesced in to continue to conduct the trial as he thinks fit in the best interests of his client. We have no doubt at all that on the concrete issue that is what leading counsel did. The attempt to elevate the advice of counsel and his refusal to call contra-expert evidence into a material irregularity showing negligence of a high degree sufficient to sustain a miscarriage of justice falls, in our view, into my Lord Kempster, J.A.'s category of a "ground of last resort".

65. At the conclusion of the case for the prosecution, oral instructions were taken as to whether the Applicant would or would not give evidence. This was considered by leading counsel to be basically a formality for it was his firm impression that at no stage was it seriously contemplated that the Applicant would go into the box. This impression must, of course, have been fortified by the fact that he had no full proof of evidence. It is axiomatic that such proof would have been taken or provision made for it were such a decision really in issue.

66. Various versions have been rut before us as to the circumstances surrounding the Applicant's decision not to give evidence. In two respects they agreed. First there was full consideration and discussion : second the decision was that of the Applicant. As to the reliance now placed by the daughter and the Applicant upon the difficulties in giving evidence arising from the alleged "falsity" of the Crosbie admission, such alleged difficulties were in no way the responsibility of leading counsel to whom such alleged falsity was never revealed.

67. A further factor on this is that if the Applicant had gone into the witness box he could not have been giving evidence in respect of the Crosbie charge in isolation, but would have been subjected to cross-examination in respect of all of the eight charges he then faced.

68. In our view leading counsel's tactical assessment of the best line of defence open to the Applicant was sound and open to criticism in one small detail only. We accept that it was never seriously considered that the Applicant would give evidence. The defence was to hinge on discrediting Ling and Lee in cross-examination. In the case of Lee it succeeded in the case of Ling it failed. To judge from the Reasons for Verdict it almost succeeded in persuading the judge that when the Croshie payment was made it was not made for a corrupt purpose. These failures cannot be laid at the door of leading counsel, who conducted this difficult defence with considerable skill.

The immunity point

69. Ling was interviewed on 14th August 1986 in Canada by an officer of the Commission after he had there been traced by the Royal Canadian Mounted Police. A record was made. At its foot was recorded a form of immunity signed by Mr. Needham, the officer concerned. It confirmed that Lines had agreed to the best of his ability to answer questions relating to allegations of corruption in the Public Works Department of Hong Kong in connection with the erection of 26 housing blocks between 1964 and 1973. In consideration of that agreement, the Independent Commission undertook that he would not be prosecuted or in any way proceeded against for any offence under either the Old or the New Law. Nor would proceedings be brought against him nor steps taken to attach, seize or otherwise take control or Possession of any assets in the same of either himself or his wife.

70. The immunity granted under the signature of the Director of Public Prosecutions on 10th July 1987 related to the period 1962 to 1975. It was wider in terms than the Needham immunity but it made no reference to assets.

71. It is Mr. Du Cann's submission, and as a generality we accept it, that persons such as Ling should be presented to the Court, warts and all (see R. v. Tsui Lai Ying and others [1987] HKLR. 857). It is his further submission that the failure of the Crown to inform either leading counsel or the Court of the existence of the Needham immunity amounted to a material irregularity such as to occasion a miscarriage of Justice in that the Court should have been aware of it in its assessment of credibility and, second, its absence inhibited counsel in cross-examination. Credibility was a vital factor.

72. Mr. Du Cann further suggests that the Needham immunity was much wider than the one of July 1987 for it did not tie itself to specific dates, although the period of the investigation which was stated therein was narrower than the immunity peried referred to in the July 1987 immunity.

73. In cross-examination, which was extensive, Ling said of the 1986 interview that he had then been told to tell the truth and if he did so he would not be prosecuted. There had been discussions, prior to his giving the statement, between his Canadian solicitor and the Commission officers. He did not have in mind at that time the Possibility of giving evidence. He said there was no mention of an immunity from the Attorney General, but he made no reference to the Needham immunity and went on that there was no declaration in respect of the assurances of non-prosecution on the face of the respect of the interview.

74. For the purposes of this submission, we are prepare to assume that the terms of the Needham immunity were not before the Court and were not known to counsel. The Crown seeks, should it be necessary, to show that in the papers sent to the Applicant's solicitors the immunity was included. In the light of our views on this issue we do not think that to need resolution.

75. In R. v. Wai Chi Nam and others [1987] HKLR 1112, a decision not drawn to our attention, another Division of this Court was considering a similar point. Three statements made by an accomplice, called by the Crown, and relevant to an immunity granted to him by the Attorney General, had not been disclosed at trial. They contained matter which might have assisted counsel for the defence in impugning the credibility of the accomplice. Kempster, J.A. did not think that they:

"could have afforded the defence significant grist to their mill, affected the credibility of Ho's evidence to a further material degree or led the jury to bring in different verdicts" (p.1119 G/H)

He concluded that, while the prosecution were at fault in failing to disclose the documents and that failure constitute a material irregularity, it did not render the conviction, in all the circumstances, unsafe or unsatisfactory. The proviso was applied.

76. Here there was a lengthy and comprehensive cross-examination of Ling. The trial judge accepted him to be a corrupt accomplice of whose evidence he had to be very wary. It certainly would have been better if the existence of the Needham immunity had been known, if it were not. We do not, however, consider that the remise not the seize the assets of Ling, and that is really all that was kept from the defence, was of major importance in the context of that which was known, and use to discredit him. It was a Commission promise not to exercise its powers of seizure which was little mare than the inevitable consequence of the basic criminal immunity granted. If counsel, had been aware of the Needham immunity it could have added little to his cross-examination. If the Needham immunity was indeed not disclosed then, while this would have amounted to a material irregularity, we would unhesitatinely have applied the proviso.

77. In the light of that which has none before Ground F, which concentrates on the issue of the concrete and the evidence given of it, falls away.

78. While the trial judge is lightly criticised for having accepted the evidence of Ling without corroboration those criticisms do not stand the light of day. He did consider, and was seen to consider, the known deficiencies of a witness such as Ling. The Needham immunity point is not one which we think would have materially affected those considerations. In consequence Ground H also fails.

79. It has been necessary to give consideration to all the many issues raise by Mr. Du Cann. At the end of the day there was but one irregularity of any substance the old Law presumption point but even that, on proper consideration, falls fairly and squarely within the category of "unmeritorious grounds of last resort". Leading counsel had informed the Applicant of his tactical approach to these charges. That tactical approach was accepted by the Applicant. There was no misjudgment. There was no negligence in the high degree required.

80. These convictions are neither unsafe nor unsatisfactory and the application for leave to appeal against conviction is refused.

Representation:

R. Du Cann, Esq., Q.C. &. Gordon Hampton, Esq. (Susan Liang & Co.) for Applicant.

J.K. Findlay, Esq., Q.C., B. Moorfoot, Esq. & S. Wong, Esq. for Crown.

BETWEEN

__________

Coram: Silke, V.-P. Fuad, V.-P. & Hunter, J.A.

Dates of Hearing: 11 - 13 October 1988.

Date of submissions on sentence and judgment: 3 November 1988

Silke, V.P.:

Sentence

81. The sentences imposed were: On the first charge: one year's imprisonment and a fine of $10,000 and on the second charge one year's imprisonment and a fine of $10,000, with 6 months' imprisonment in default of payment of the fines on each of these. The third charge: 3 months' imprisonment and a fine of $5,000 with a 2 months' imprisonment in default of payment of the fine. The fourth, fifth and sixth charges; on each 1 months imprisonment and a fine of $100,000 and on each 12 months' imprisonment in default of payment.

82. By the making sentences on the first and second charges concurrent to each other and those on the fourth, fifth and sixth charges concurrent to each other, but consecutive to the first and second with the third charge sentence consecutive to all, the third judge achieved a totality of 2 years and 9 months' imprisonment.

83. Charges 1 and 2 had, under the Old Law, a maximum of 5 years' imprisonment. Charges 4, 5 and 6 had, under the New Law, a maximum of 7 years.

84. The trial judge in a careful analysis showed himself to be aware of the legislative changes and that this instant case was the first to be brought in respect of pre-1977 corruption. He stated himself to give special weight to the lapse of time between the offences and the date of conviction.

85. It is Mr. Du Cann's submission that the trial judge confused the issue of delay the issue of whether or not a sentencing court should have regard to sentences passed not at the time of conviction but at the time the offences themselves occurred.

86. We accept that delay, where a gap between the offence and the trial is occasioned through no fault of the Defendant, it is a matter properly to be considered when sentence comes to be passed. That is not the case here.

87. We accept that, when the Court provides rising, guidelines or the Legislature increases penalties provided for in any Ordinance, then, when sentence is passed for offences committed before the date of the handing down of such guidelines or the legislative acendment, the Court should not consider the higher to apply. That again is not the general case here.

88. We are not aware of any authority to the effect that a trial court is limited in its sentencing range when it comes to pass sentence on offences which occurred long ago to the form of sentence passed at the time of the offence. Though, of course, this should be borne in mind when it comes to assessing the proper quantum.

89. He do not consider either R. v. Wong Yuen Cheung [1974] HKLR 440 or R. v. Lai Yuk Kui [1981] HKLR 691 to warrant the proposition that the individual sentences attached to the Homantin charges here were out of line with the normal sentence passed in the late 1960s and early 1970s. It might be, however, that the sentence on the Crosbie payment was harsher than one which would have been imposed in a Magistrates Court in 1968 for a similar offence.

90. Mr. Du Cann has urged upon us that we should infer from the evidence that Ling was the invitee and therefore the instigator of the Applicant's corrupt activities. It may well be that he Applicant knew that Ling was corrupt. Ling admitted being such from 1960. It was notorious that corruption was rife on building sites. The Applicant may have assumed that Ling was susceptible to bribery and did therefore bribe. But we have no doubt that this was his choice. He was not compelled to make that choice, however customary it was to pay off the "blind eye".

91. The "blind eye" was of help to contractors in many way, the costs of the construction itself could be reduced, lack of delay helped in the completion of a project on time or Indeed earlier. All these, avoiding cost overruns, early completion and cheap materials, contributed to a contractor's realised profit. While the basic calculation of the $1.5 million on cement savings may be suspect, this was by no means she only advantage to the Applicant. Ling received $200,000. A vast sum in those, or any other, days. Clearly, as the trial judge appreciated, greed was the motive for the payments.

92. The Applicant is now 63 he is heir to the diseases of age. Prison, for a man of his age, health and prior standing in the community cannot but hear hard upon him.

93. We have seen up-to-date medical reports it is not suggested that their contents place the Applicant in that special, and rare, category, a person whose physical infirmities induce in the court an impulse to clemency. He is not a well man. This the trial judge did take into consideration. The reports we have see amplify that which was before the trial judge. They to do not in our view alter the basic facts whch were within his knowledge.

94. The sentencing approach of the judge was the totality principle hence the format of the sentences he imposed. For a case of this nature, spanning a number of years of criminal activity, we think that approach to be correct, however the technicalities used to achieve that end can be individually criticised.

95. The issue for us is: Is the totality achieved, bearing in mind all the circumstances of the offences and that which Mr. Du Cann has submitted to us, manifestly excessive?

96. It might be thought to be on the upper end of the scale but that is not sufficient to warrant our interference. It is not for us to substitute what sentences we might have, as individuals, imposed provided that we do not think the trial judge to have erred in principle.

97. We are not persuaded, giving due weight to everything which has been said, that we should interfere. The application in respect of leave to appeal against sentence is therefore refused.