HKSAR v. Kiu Mei Ling and Others

HCCC 348/2017

[2019] HKCFI 846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 348 OF 2017

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BETWEEN

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REASONS FOR RULING

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1.Having conducted a voir dire in which the prosecution called Mr Chan Chi Chau, Alan, an executive director of Bonjour in 2011, and Madam Kiu Mei Ling, the 1^st defendant, the manager of the Administration and Human Resources Department of Bonjour, gave evidence herself in the defence case, I ruled on 15 January 2019 that exhibit P13, “Indemnity Agreement” was inadmissible in evidence. I said that I would give my reasons for so ruling at the end of the trial. I do so now. As I stated when giving my ruling, I reserved providing my reasons for that ruling, having had regard to the fact that the 1^st defendant gave evidence and in light of the fact that I was told that she would give evidence in the general issue.

The prosecution case

2.The two-page Indemnity Agreement, dated 22 March 2011, was identified by Mr Chan as having been signed by the 1^st defendant in three places.  It purports to have been signed by Mr Wilson Yeung, a solicitor engaged by Bonjour, witnessing the signing of the agreement by the 1^st defendant.  Unfortunately, in the intervening period of almost eight years, Mr Yeung had died and was not available to be called as a witness.

3.Mr Chan said that the Indemnity Agreement was drafted following questioning by Mr Yeung of the 1^st defendant in the presence of Mr Chan in a pre-arranged meeting in a conference room in the offices of Bonjour on the afternoon of 22 March 2011.  The questioning arose from a discovery, earlier that morning, that the amount of salary paid to Ms Michelle Hong, a clerk in the Administration and Human Resources Department who had been transferred to the Beauty Department, was greater than that which company records stated she was entitled to be paid.  Mr Chan raised the matter with the 1^st defendant, whose duties included dealing with the payment of staff salaries.  Then, Ms Michelle Hong presented her bank passbook to Mr Chan to confirm the amount of salary that she had actually received on a number of previous occasions, the number of which Mr Chan was unable to recall.  Mr Chan testified that he raised the matter with Mr Ip, the Chairman of the company and, after the 1^st defendant had been unable to provide any explanation for the discrepancy, it was arranged that Mr Yeung and Mr Chan interview the 1^st defendant in the afternoon.

4.Mr Chan testified that Mr Yeung conducted the questioning of the 1^st defendant, at the conclusion of which he drafted the Indemnity Agreement.  The preamble asserted:

“ (2)  In the course of my performance of my duties, I have wrongfully and intentionally since about 2008 procured the Accounting Department to transfer money to different person(s) who are not entitled to.

(3)  As a result, Bonjour has suffered losses.”

5.Next, the agreement asserted:

“ Now I hereby agree as follows:-

(1)  that in consideration of Bonjour forebearing action against me, I agree to assist Bonjour in retrieving all relevant documents and accounts and records and to recover and to account for my conduct and to disclose all my conduct in this manner;

(2)  I agree to tell and disclose all passwords of my computers and all records and papers;

(3)  I agree to assist and cooperate with Bonjour in handling all preparation of all proper accounts and records and update all the accounts and records;

(4)  I agree to fully indemnify and pay and settle all losses, demands, claims of damages that Bonjour will make or suffer as a result of my conduct and/or as a result of my document of transfer of money as aforesaid and pay all costs and expenses consequentially on a full indemnity basis.

(5)  In breach of the above, Bonjour has liberty to take action.”

6.Mr Chan testified that, although he was unable to say who had written the Chinese characters, a declaration had been written on the agreement:

“ I have been told that I can seek independent legal advice and agree that I have signed it of my own free will.”

7.Clearly, the Indemnity Agreement was intended to reflect a commercial agreement between employer and employee.  It was not intended to record an admission of criminal misconduct simpliciter.

8.Then, Mr Yeung had interpreted the document to the 1^st defendant.  Mr Chan testified that he had read the document at the time that it had been signed and was satisfied that it reflected the dialogue between the 1^st defendant and Mr Yeung.  However, not surprisingly given the passage of time of almost eight years since the conversation had taken place between them, he was unable to remember what the 1^st defendant had said.

The defence case

9.In her evidence, the 1^st defendant said that she had not signed the Indemnity Agreement in any of the two places identified by Mr Chan.  She had first seen the document, whilst remanded in custody, in Tai Lam prison.  She had not written the Chinese characters on the Indemnity Agreement.  There had been no such meeting between her, Mr Chan and Mr Yeung on 22 March 2011, in particular she had never made admissions of having wrongfully and intentionally secured the transfer of money by Bonjour’s Accounting Department to others who were not entitled to those monies.

10.The 1^st defendant said that she had attended a meeting with Mr Chan and Mr Ip on 22 March 2011, at which the subject of the salary paid to Ms Michelle Hong had been raised.  Having been told to give the answer, she told Mr Ip that Mr Alan Chan knew of the amount of salary paid to Ms Michelle Hong.  Later that afternoon, Mr Chan accused her of failing to answer any questions in respect of the level of salary paid to Ms Michelle Hong.  He said that he was prepared to suspend her for one month and told her that the company wanted her to leave.  So, she left the company.  She did not meet Mr Yeung or sign any documents that day.

11.On 24 March 2011 she attended the offices of Bonjour having been asked to do so in a telephone call from Mr Alan Chan on 23 March 2011.  She did so with her son the 2^nd defendant. When she met Mr Chan he told her that he would give her $15 million and that she was to admit “everything”.  She refused. Having threatened to throw a telephone set at her, Mr Chan said that she had better admit everything otherwise he would drag her son into everything.  She said that all that she had done had been done on Mr Chan’s instructions and that her son knew nothing of any matters.

12.Then, there ensued a meeting in the conference room with Mr Yeung who, having alluded to the proposed $15 million payment, suggested to the 1^st defendant that she admit everything.  Further, she was told that since she had used the account of a husband, she had better admit what she had done.  After a Mr Chan left the conference room, the 1^st defendant said that she was presented with a dismissal letter in Chinese on the letterhead of Bonjour, which she signed.  The 1^st defendant denied that she had ever received or seen before a letter in English, dated 22 March 2011, on the letterhead of Mr Yeung’s eponymous firm of solicitors which asserted that she had been summarily dismissed that day by Bonjour.

Discussion

13.In the course of his evidence, Mr Chan testified that at the meeting with Mr Yeung on 22 March 2011, Mr Yeung had told the 1^st defendant not only was the matter serious but also that, if she failed to explain, it might have to be reported to the police.  Mr Chan said that the objective of the meeting was not to report the 1^st defendant to the police but to understand what had happened and recover the monies.  Later, he added that the purpose was to see if the 1^st defendant accepted liability.  He added that Mr Yeung had been brought in to assist because it was suspected that, perhaps, something illegal had happened.  He said that the reference to the possibility of reporting the matter to the police was not said in a threatening way.  Rather, Mr Yeung asked her to cooperate.  If she cooperated with the company, the matter might not be reported to the police.  Clearly, in context, the statements fell to be regarded as inducements together with the correlative threat of reporting the matter to the police.

14.Having regard to the obviously important subject matter of the Indemnity Agreement, the fact that it was dated 22 March 2011 by the solicitor engaged by the company, and in light of Mr Chan’s evidence that he was satisfied that the document accurately reflected what had happened, I was satisfied that was the date of the meeting between the three parties.  I accepted Mr Chan’s evidence that the 1^st defendant signed the document at that meeting, and rejected the 1^st defendant’s evidence to the contrary.  Similarly, I accepted his evidence that the document was interpreted to the 1^st defendant and that it contained the declaration to the effect of the 1^st defendant’s right to have independent legal advice before she signed the document.  I rejected the 1^st defendant’s evidence to the contrary.  It is inherently improbable that Mr Yeung and Mr Chan would deliberately create a document that was false from beginning to end.

15.Nevertheless, having regard to relative positions of power of the parties, namely the fact that the interview was conducted of the 1^st defendant by an executive director of Bonjour, together with a solicitor engaged by the company for that purpose, in a conference room in the Bonjour office headquarters I was not satisfied that the prosecution has established, as required, that the 1^st defendant was not affected so that her will was not sapped, by the inducement offered to her of Bonjour forebearing to take action against her and not reporting the matter to the police, if she cooperated with the company, including accepting liability for wrongfully and intentionally procuring the transfer of money from the company to different persons who were not so entitled.  In that context, it is to be remembered that in her meetings in the morning with Mr Chan, the 1^st defendant had made no admissions whatsoever.  Yet, in the afternoon, without being confronted with any evidence of her alleged wrongdoing, she had made broad, unparticularised, admissions of malfeasance.

Conclusion

16.In the result, I was not satisfied that the prosecution had discharged the burden of proof to establish that exhibit P13 was voluntarily made by the 1^st defendant. Accordingly, I ruled it inadmissible.

Mr Newman Wong, counsel on fiat, for HKSAR

Mr Leung Chun Keung, instructed by Jim & Co, assigned by Director of Legal Aid, for the 1^st accused

Mr Adonis K W Cheung, instructed by Ivan Tang & Co, assigned by Director of Legal Aid, for the 2^nd accused

Mr Caesar Chi Lam Lo, instructed by C M Chow & Company, assigned by Director of Legal Aid, for the 3^rd accused