HKSAR v. Chan Ming Piu

CACC000160/2001

CACC 160/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 160 OF 2001

(ON APPEAL FROM DCCC 1192/2000)

_____________

_____________

Coram: Hon Stuart-Moore VP, Cheung JA and Lugar-Mawson J in Court

Date of Hearing: 14 November 2001

Date of Judgment: 14 November 2001

______________

J U D G M E N T

______________

Hon Lugar-Mawson J: (giving the judgment of the Court)

1.On 18 April 2001, the Applicant, Chan Ming-piu, who was the 2nd Defendant at trial, was convicted by His Hon Judge Derek Pang, in the District Court, of two offences of offering an advantage to a public servant, contrary to s.4(1)(a) of the Prevention of Bribery Ordinance, Cap 201. They were the 2nd and 15th counts on the District Court charge sheet. He was acquitted of nine other s.4(1)(a) Prevention of Bribery Ordinance Offences. On 20 April 2000 the judge sentenced him to serve 9 months' imprisonment in respect of the 1st offence and 6 months' imprisonment in respect of the second, 3 months of which was to run concurrently with the sentence for the first offence. This resulted in the applicant being sentenced to serve a total of 1 years' imprisonment for his 2 offences.

2.He now seeks leave to appeal his convictions, but not his sentences.

3.He was represented at trial by counsel. He represents himself in this appeal, legal aid having been refused.

4.Before his conviction, the applicant had a clear record.

5.The 1st defendant at trial, Wong Hok Sing, was a works supervisor with the MTR Corporation. The Applicant was the sole proprietor of Xiaoming Engineering Company. This company had obtained a subcontract from the main contractor, Keung Kee Construction Ltd, to repair water leakage damage at the Diamond Hill MTR Station. The work was carried out between February to October 1998.

6.The 1st defendant was the project's supervisor. His duties included ensuring the safety and standard of workmanship at the site and certifying measurement sheets, prepared by the Applicant, regarding the value of the completed works. After certification, the Applicant submitted them to Keung Kee for preparation of payment applications to the MTRC. The 1st defendant would also submit copies of these sheets to the relevant section at the MTRC for them to verify Keung Kee's claims.

7.On 2 November 1998, PW2 who was a MTRC Technical Officer, conducted a random check on the measurements of the completed works at Diamond Hill Station. Discrepancies were found between the actual readings and corresponding figures shown on the measurement sheets certified by the 1st defendant. PW2 reported his findings to his superior, who was PW3 and who is a Project Engineer of the MTRC. She, as a result, interviewed the 1st defendant and instructed him to arrange for Keung Kee to re-measure all completed works at the station to determine the correct project sums. During the interview, the 1st defendant admitted to her that he had been negligent and had signed the measurement sheets without actually checking that the work had been done. Eventually, the 1st defendant and a site agent of Keung Kee conducted a joint re-measurement in January 1999.

8.By way of background, it is necessary to mention the facts of 1st and 3rd charges faced by the 1st defendant alone. Sometime after the random check and the discovery of the discrepancies in the measurements in late 1998, he anticipated that the MTRC would dismiss him. He solicited $200,000 from the Applicant as compensation for his possible loss of a job, reasoning that his troubles had been caused by the Applicant's substandard work. The Applicant did not respond to his request. In the meantime, the 1st defendant found odd-job workers to work on other renovation projects of the Applicant's, which were unrelated to the MTRC contract. He also brought materials on credit for those works on the Applicant's behalf.

9.One or two months later, the Applicant received a phone call from the 1st defendant who demanded that he pay the outstanding wages owed to the workers, as well as reimburse him for the cost of the materials. Over the telephone, the 1st defendant again mentioned his request for compensation and warned the Applicant that, if he did not give him the money, he would deny that he had agreed the re-measurement sheets, with the result that the Applicant would be unable to obtain payment from the MTRC. As a result, the Applicant paid the 1st defendant $69,000 sometime in early 1999. The Applicant faced no charges in respect of this matter.

10.However, sometime in December 1998, the 1st defendant had phoned the Applicant and solicited a loan of between $70,000 to $80,000 for the purpose of paying his tax. Over the phone, the 1st defendant told the Applicant about the MTRC's rejection of the original measurements and the arrangement for the re-measurement of the work. As the Applicant was in urgent need of the project fees to pay his employees' wages, he agreed to pay this money to the 1st defendant in return for his speeding up the re-measurement. A day or two later, the 1st defendant and the Applicant met each other at the Sam Shing Estate in Tuen Mun, where the Applicant gave the 1st defendant $78,000, in cash, inside a public toilet near to the estate's market. When the money changed hands, the Applicant reminded the 1st defendant of the need to speed up the re-measurement, the 1st defendant replied that he would do so. This was the basis of the 2nd charge.

11.As to the 15th charge, the Applicant treated the 1st defendant to entertainment at the New Flower City Karaoke Nightclub in Tsim Sha Tsui East, believing, at the time of so treating him, that he would in return render lax supervision of the safety aspects of the Diamond Hill station renovation project. The 6th to 14th charges related to other alleged instances of entertainment at the same nightclub, the judge; however, found that these were not made out on the evidence. The Applicant had admitted the facts giving rise to the 15th charge.

12.The 1st defendant abandoned his appeal against conviction and sentence on 27 August 2001.

13.The Applicant's self-made grounds of appeal and his submissions made before us this morning, essentially, amount to no more than a rehearsal of his defence at trial. As has been said many times before, we do not retry cases on the papers. In his Reasons for Verdict the judge summarized the evidence at trial, both for the prosecution and the defence in some detail. He directed himself correctly on the effect of the Applicant's previous good character and on the need to consider the case against the two defendants separately.

14.As the judge said in his Reasons for Verdict, the case against the Applicant rested, in the main, on his admissions given in his two video-recorded interviews with the ICAC officers who investigated the case. They both contain clear, unequivocal admissions that the Applicant had committed the two offences of which he was convicted. Their admissibility was the subject of a voir dire and the judge - although he was not bound to do so - gave detailed and cogent reasons for accepting their admissibility. We can see no grounds for interfering with his decision on that issue. Given those admissions, the judge would have been acting perversely had he not found the Applicant guilty of the two offences.

15.There is no merit in the application and the Applicant's application for leave to appeal his convictions is dismissed.

Representation:

Mr William Tam, SGC, for the Respondent

Applicant in person