Read the full judgment text of CACC 108/2018 on BabelCite. This Court of Appeal judgment was delivered on 3 July 2019 before 朱芬齡, 彭偉昌, 黃崇厚.
Criminal law – fraud – theft ordinance – elements of offence – particulars versus elements – inducement – whether (i) inclusion on approved vendor list and (ii) issuance of purchase orders must each be proved – application of HKSAR v Chen Keen and R v Kevin Brown – point held academic where both particulars found proved. Evidence – voluntariness of confession – internal investigation interview by employer's compliance personnel under Sarbanes-Oxley Act – assurances of confidentiality and encouragement to be 'open and honest' – whether inducement rendering confession involuntary – Ibrahim v R and R v Lam Yip Ying applied – long-serving senior employee presumed to know confidentiality policy and its exceptions. Evidence – discretion to exclude – fair trial according to law – whether breach of constitutional rights in obtaining evidence – HKSAR v Muhammad Riaz Khan, HKSAR v Chan Kau Tai, and SJ v Lam Tat Ming applied – balancing public interest in protecting constitutional rights against public interest in prosecution. Evidence – prosecution disclosure – common law duty – whether non-disclosure of information known to ICAC regarding internal interview assurances caused unfairness – applicant participant in interview. Evidence – non-disclosure by employee of interest in supplier – approved vendor list system at RHK and TRHK – whether system existed – sufficiency of evidence including applicant's own admission in ICAC interview. Sentencing – breach of trust – John Barrick factors – whether 張美嬌 and 吳國榮 apply to fraud cases – scale and duration of fraud – over HK$12 million obtained by deception over 6 years – total sentence of 6 years 8 months' imprisonment below District Court maximum of 7 years – reduction of 4 months for rehabilitation – whether 2 months' reduction for rehabilitation adequate – whether prosecution delay warranted further reduction – delay explained by complexity of investigation involving 69 witnesses. Outcome: leave to appeal against conviction and sentence refused.
Legal issues: Whether particulars (i) and (ii) of the fraud charges constitute elements of the offence · Whether the trial judge erred in finding RHK and TRHK maintained approved vendor list systems · Whether the applicant's statements during TRHK's internal investigation were voluntary · Whether the trial judge erred in admitting the internal investigation statements without exercising discretion to exclude · Whether the prosecution's failure to call the applicant's supervisor during the critical period fatally undermined the non-disclosure finding · Whether the prosecution's failure to disclose information about the internal interview assurances caused unfairness · Whether the trial judge erred in finding the companies suffered actual loss exceeding HK$12 million · Whether the sentence of 6 years 8 months total was manifestly excessive
Outcome: Both applications for leave to appeal against conviction and sentence refused
Cited by 38 cases · Cites 8 cases