HKSAR v. YIP HON WING

CACC 484/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 484 OF 2001

(ON APPEAL FROM DCCC 356 OF 2001)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. The applicant was convicted after a trial in the District Court before Deputy Judge Mackintosh of offering an advantage to an agent contrary to section 9(2)(a) and section 12(1) of the Prevention of Bribery Ordinance Cap. 201.

2. Initially particulars of the offence were:

"Yip Hon-wing, between the 8th day of May 2000 and the 20th day of May 2000, in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely a gift, loan, fee, reward or commission consisting of a sum of money amounting to $150,000.00 Hong Kong currency to agents, namely Li Hoi and Man Lui-on, members of the Committee of the Incorporated Owners of Cheong Wang Mansion and Cheong Wai Mansion, as an inducement to or reward for or otherwise on account of the said Li Hoi and Man Lui-on doing an act in relation to their principal's affairs or business, namely ensuring that a consultancy contract for electrical repair works for the Incorporated Owners of Cheong Wang Mansion and Cheong Wai Mansion was awarded to Archidesign and Associates Limited."

3. The word "consultancy" was added with agreement of the parties at the commencement of the trial.

4. When it was time to close the prosecution case a more substantial amendment was made. This will be the subject of comment later in this judgment.

5. The applicant was sentenced to 2 years and 3 months imprisonment.

6. He seeks leave to appeal against his conviction and the sentence which was imposed.

7. The applicant was the General Manager of Alico Management Company Limited (Alico) which provided management services to residential and industrial buildings.

8. Amongst the buildings managed by Alico were two buildings at Kwai Chung known as Cheong Wang Mansion and Cheong Wai Mansion (the buildings).

9. The buildings were in a run down condition and a substantial amount of repairs including electrical work needed to be undertaken on them.

10. Before the work could commence it was necessary for a consultant to be appointed to oversee the contractor who would undertake the necessary remedial work.

11. Alico assisted the Incorporated Owners in inviting tenders for the consultant contractor who would supervise the electrical repair works for the buildings.

12. The Committee of the Incorporated Owners would invite tenders for the work and then draw up a short list of three firms.

13. Members of the Incorporated Owners would vote on who to select to undertake the work after hearing advice from the consultant.

14. It is the prosecution case that the applicant approached Mr Li (PW1) the Chairman of the Incorporated Owners and in a series of meetings offered him a reward if he could arrange for Archidesign and Associates Limited, or another company in which he was interested, to be appointed to undertake the electrical repair work.

15. It is alleged that the applicant also suggested to PW1 that Mr Man, another member of the Incorporated Owners, should join in the scheme. The reason given for this was that Mr Man had some experience and knowledge of electrical matters and if he was a party to what was proposed he could assist in convincing the other Incorporated Owners members to proceed as was intended.

16. PW1 made a report to the Independent Commission Against Corruption (ICAC). Arrangements were made to tape-record meetings and telephone conversations he would have with the applicant.

17. Between 16 May and 20 May, there were four telephone conversations and three meetings which were tape-recorded. At the conclusion of the meeting on 20 May the applicant handed to PW1 $37,500.00 which, according to the evidence, represented an initial payment. Shortly after this he was arrested.

18. The prosecution case consisted of PW1's evidence and the transcripts of the tape recordings which reinforced PW1's evidence.

19. At the conclusion of the prosecution case the Judge expressed concern as to whether the evidence given by PW1 and in the transcripts satisfactorily corresponded with the charge as framed and inquired of Mr Leung for the prosecution whether he wished to amend the charge.

20. Mr Leung agreed that it was necessary to amend the charge and he formulated an amendment which he submitted would have the required effect of ensuring that the available evidence was consistent with the charge being laid.

21. Mr Ching Y. Wong SC who represented the applicant at his trial opposed the proposed amendment.

22. It would appear that Mr Wong had been aware of the problems which might be encountered in relation to the drafting of the charge as he sought unsuccessfully to restrict the prosecution from making further amendments after agreeing to the word "consultancy" being added at the commencement of the trial.

23. Notwithstanding Mr Wong's opposition the Judge did amend the particulars of the offence to read:

"Yip Hon-wing, between the 8th day of May 2000 and the 20th day of May 2000, in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely a gift, loan, fee, reward or commission consisting of a sum of money amounting to $150,000.00 Hong Kong currency to agents, namely Li Hoi and Man Lui-on, members of the Committee of the Incorporated Owners of Cheong Wang Mansion and Cheong Wai Mansion, as an inducement to or reward for or otherwise on account of the said Li Hoi and Man Lui-on doing an act in relation to their principal's affairs or business, namely ensuring that a consultancy contract for electrical repair works for the Incorporated Owners of Cheong Wang Mansion and Cheong Wai Mansion was awarded either to Archidesign and Associates Limited or Sam Wo Electrical Engineering Hong Kong Company Limited and that a contractor recommended by Yip Hon-wing was appointed to carry out the said electrical repair works."

24. Following this Mr Wong withdrew from representing the applicant as he claimed that to continue to do so would be inconsistent with his professional responsibilities.

25. The Judge granted an adjournment to the applicant to obtain alternative legal representation. The applicant did not instruct any counsel to represent him fully for the remainder of the trial. He did however instruct Mr James Chandler to accept a watching brief and Mr Chandler remained in court until the conclusion of the trial.

26. The first ground of appeal has been abandoned.

27. Perfected grounds 2, 3 and 4 all relate to the amendment of the charge and its consequential effects. They are as follows:

"2. The learned Deputy Judge erred in law in allowing an amendment to the particulars of the charge in the absence of a fresh consent from the Secretary for Justice when he himself had remarked that there was a 'fundamental difference between the charge as originally worded and as amended' and 'this is a radical shift by the Prosecution'. The Queen v Do Bing Hung, [1988] 1 HKLR 558.

3. The learned Deputy Judge has failed to consider sufficiently or at all, that when the applicant had been led to defend his case along the particulars originally preferred by the Prosecution, an amendment in these circumstances would result in substantial injustice, the extent and effect which could not be cured by an adjournment or recalling of witness.

4. The learned Deputy Judge had erred in refusing the Defence application for adjournment made on 26th October 2001, when the withdrawal of the original trial counsel was occasioned by professional embarrassment pursuant to a substantial amendment to the charge and the Counsel then appearing had explicitly explained his difficulties to proceed when he was not supplied with the tapes covering the 4th day of trial, i.e., the very day when the issue of amending charge was raised by the learned Deputy Judge and his ruling on the application of the amendment was made."

28. These grounds can conveniently be dealt with together.

29. Section 32 of the Prevention of Bribery Ordinance is as follows:

"(1) If, on the trial of any person for any offence under Part II, it is not proved that the accused is guilty of the offence charged but it is proved that the accused is guilty of some other offence under Part II, the accused may, notwithstanding the absence of consent under section 31 in respect of such other offence, be convicted of such other offence, and be liable to be dealt with accordingly.

(2) If on the trial of any person for any offence under Part II there is any material variance between the particulars of the offence charged and the evidence adduced in support thereof, such variance shall not, of itself, entitle the accused to an acquittal of the offence charged if, in the opinion of the court, there is prima facie evidence of the commission of that offence, and in such a case the court may, notwithstanding the absence of consent under section 31 in respect of the particulars supported by the evidence adduced, make the necessary amendment to the particulars, and shall thereupon read and explain the same to the accused and the parties shall be allowed to recall and examine on matters relevant to such amendment any witness who may have been examined and, subject to the provisions of subsection (3), to call any further witness.

(3) If an amendment is made under subsection (2) after the case for the prosecution is closed no further witness may be called by the prosecution other than such and on such matters only as it would, apart from the provisions of this subsection, be permissible to call and put in evidence in rebuttal.

(4) Nothing in this section shall exclude the application of any other law whereby a person may be found guilty of an offence other than that with which he is charged."

30. The operative subsection is subsection (2).

31. The critical question to be determined is whether in the opinion of the court there was prima facie evidence of the commission of the offence.

32. This is what the Judge had to say at pp. 516 and 518 of the transcript:

p. 516

"At the very start of this case, Senior Counsel Mr Ching Y Wong for the accused, asked in open court whether the charge laid by the prosecution was in its final form or whether there were to be any amendments. He asked the prosecution to nail its colours to the mast. The prosecution then applied to amend the particulars of the charge by further specifying that the advantage which they said was being offered was in respect of a consultancy contract. Therefore the word 'consultancy' was added by consent. In fact, that addition did not change the charge which specified the alleged advantage, $150,000, as being in respect of a contract to be awarded to Archidesign and Associates Limited, a consultancy company, not an electrical contractor.

The prosecution now say that the colours that they thereby nailed to the mast are the wrong ones. They seek to amend the charge in two ways: a) by alleging that the advantage was in part related to consultancy contracts for either Archidesign or another company referred to in the trial as Sam Wor and b) by alleging that the advantage was also being offered in respect of the appointment of an electrical contractor to do the works required on behalf of the principals of the persons to whom the offer was being made, that is Li Hoi and Man Lui-on.

This is a fairly radical shift in position by the prosecution so far as the terms of the charge is concerned - I think I used the word 'fundamental' earlier - and it is opposed. Let me say first that it is not opposed on the footing that the evidence adduced does not support such an amendment. It is conceded that the evidence contained within the transcripts of covertly-recorded conversations is consistent with the amendment or at least the contrary is not asserted. I think I should say that upon the prima facie footing which we are presently working, the charge as presently drafted does not meet the evidence adduced and the proposed amendment does appear to be properly founded on the evidence so far adduced. And what's more, it is a foundation which was presaged in the opening."

p. 518:

"I have considered the objection raised very carefully. It seems to me that the prosecution has misconceived its own case. That's why the charge was originally drafted in its present form. It is not, however, a misconception which has misled the defence in any way as to the true nature of the prosecution case. They have known all along what it actually is, both from the papers delivered and indeed from the opening, and hence Mr Wong's attempts to pin the prosecution down to a particular line at the start of the trial.

The area touched upon in cross-examination by Mr Wong in order to lay the ground for the latest submission relate to matters which are in the transcripts. In other words, what the cross-examination was designed to do was to highlight the fact that in the transcripts reference is made to alternative consultants, Archidesign or Sam Wor, and the fact that payments made were in respect of more than just the consultancy contract. This is not, I must emphasise, a situation where, misled by the prosecution's approach, the defence have adduced evidence which would not otherwise have been adduced. The evidence was there in the papers already before the court. The defence have simply pointed to it and based its questions to PW1 upon it. PW1 has answered the questions which would not otherwise have been asked but nothing he has said in answer to those questions materially affects the position.

In the end, I am satisfied that there are material variances between the evidence adduced and the charge, that there is prima facie evidence of the commission of the offence charged and that the variances can be cured by amendment without injustice to the accused. I am fortified in this conclusion by the fact that the defence may ask to further cross-examine PW1 and to ask for witnesses whom they were previously content for the prosecution not to call now to be called. Accordingly, I allow the amendments to the charge."

33. As has been pointed out by Mr Ian McWalters for the respondent, the case of Do Bing Hung [1988] 1 HKLR 558 is clearly distinguishable from the situation which arose in the present case. In that case the amendment in question related to a different category of advantage. This is not the situation in the present case. Also the amendment was sought prior to any evidence being led which is totally at variance with the position here.

34. It was the Judge who initiated the amendment in this case and in the circumstances it was not necessary to obtain a further consent from the Secretary for Justice to the prosecution.

35. Although the change was characterized as being "radical" it is clear from the overall circumstances that it was nothing of the sort. Mr Wong was well aware of what was involved from the outset and there is no merit in the second ground.

36. When the Judge was considering the question of the amendment he fully weighed and considered the consequences flowing from it.

37. The fact of the matter was that the defence knew very well what was on the tape. They were in no way taken by surprise. That effectively disposes of the complaint made in ground 3.

38. As to ground 4 the Judge afforded the defence every reasonable opportunity to obtain alternative representation.

39. There is every reason to suppose that a conscious tactical decision was made by the applicant to proceed in the way he did.

40. The Judge was well aware of this as can be seen from paragraph 14 of his Reasons for Verdict:

"14. What I could and did do however was to ensure that adequate time to obtain further representation was given. This was, as I said when refusing Mr Chandler's applications, a straightforward case - one charge, one prosecution witness and a bundle of transcripts which could be read in a few hours. Tapes of the evidence given so far were available. Two weeks was abundant time to arrange alternative representation. Indeed, the accused had arranged such representation the day after the withdrawal of Mr Wong but he did not continue to instruct the solicitor concerned. Through Mr Chandler, he outlined how he been to various solicitors in the second week of the adjournment of the trial with a view to instructing one of several well known Senior Counsel at short notice: this was wholly unrealistic and unnecessary in the circumstances. I was well aware of the right of the accused to counsel of his choice but it was not a right which, in the circumstances, was wholly unfettered. Although there were certain apparently well documented visits to firms of solicitors, there was no serious attempt to obtain representation for the continuation of the trial other than perhaps the initial instruction of Yaddy Cheung. Mr Chandler was instructed to make his applications on the evening of the 24th October, with only one clear day, a public holiday, until the scheduled continuation of the trial. It had been made clear to the accused that if he was unrepresented at the adjourned date, he would have to represent himself. I had no doubt that the accused had sought to manipulate the court into a position where it might feel that a new trial was the only option. He wanted, as was revealed by Mr Chandler's application, to reconstitute his defence without being 'constrained' by what had already happened in the trial or by what had already been advanced on his instructions. I was unwilling to allow that to happen. A new trial or a further adjournment could only be allowed if the interests of justice demanded it. They did not."

41. The Judge was fully aware of all of the relevant considerations and allowed the defence every reasonable latitude to obtain legal representation. There is no merit in this ground.

42. In the fifth ground complaint is made that as a result of the applicant being unrepresented his clear record and good character were not made known to the Judge.

43. The simple answer to this is that the applicant has only himself to blame for this. As has been earlier indicated Mr Chandler was present throughout the remainder of the proceedings. The applicant could have sought advice from him if this was considered to be a material matter. It will however be borne in mind that the applicant did not go into the witness box to give evidence so there was never any question arising concerning his credibility.

44. There is no merit in this ground.

45. For the reasons which have been given this conviction was in no way unsafe or unsatisfactory. The application is accordingly dismissed.

Sentence

46. The Judge was entirely correct to assess this as corruption on a significant scale. As was pointed out by him although it was not on a huge scale it was hidden behind a respectable façade.

47. It is just this type of corruption which is invidious and requires firm sentencing.

48. Very little assistance is derived from considering other cases as the circumstances will almost inevitably differ materially.

49. What is clear is that a sentence of 2 years 3 months for corruption on this scale cannot be considered to be either wrong in principle or manifestly excessive.

50. This application is also dismissed.

51. There was no merit whatever in the application for leave to appeal against conviction. Accordingly we order that one month of the time the applicant has spent in custody will not count towards his sentence.