HKSAR v. Kam Kai Man, Joseph

DCCC 353/2021

[2022] HKDC 726

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 353 OF 2021

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REASONS FOR SENTENCE

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1.The defendant is convicted on his own plea and agreement to Summary of Facts to 4 charges of misconduct in public office, contrary to Common Law and punishable under section 101I(1)  of the Criminal Procedure Ordinance, Cap 221 (2^nd, 3^rd, 4^th and 5^th charge), and 2 charges of fraud, contrary to section 16A(1) of the Theft Ordinance, Cap 210 (6^th and 7^th charge).

2.As for the charge of using a false instrument, contrary to section 73 of the Crimes Ordinance, Cap 200 (1^st charge), the same is left on the court file and not to be proceeded with without leave of the court.

Facts

3.In the year 1984, the defendant joined the Department of Health (DH) as a Medical and Health Officer.  In March 1997, he was promoted to Consultant Medical Microbiologist (CMM).  The defendant was a directorate civil servant with the rank of Consultant D2. 

4.For over 8 years up to September 2012, the defendant was the CMM(2) of the Public Health Laboratory Services Branch (PHLSB) under the Centre for Health Protection.  The defendant’s office was then located in Public Health Laboratory Centre (PHLC). 

5.In 2005, the Microbiology Division which was under the PHLSB was divided into 2 teams, and from that time to September 2012, the defendant was the head of one team and was also the person-in-charge of a number of laboratories, including the Hong Kong Tuberculosis Reference Laboratory (HKTRL).

6.In 2005, the World Health Organization (WHO)  recognised the HKTRL as a supranational tuberculosis reference laboratory (SRL) for conducting anti-tuberculosis (anti-TB)  drug susceptibility testing (DST).  The defendant served as a focal point of HKTRL in the network of SRL by virtue of his official position in DH.

7.Between 2004 and 2011, Dr Chung, the then head of PHLSB, was the supervisor of the defendant, and her post was succeeded by Dr Lo in September 2011. 

8.The defendant was on pre-retirement leave between 29 September 2012 and 12 April 2013, and had retired from the DH on 13 April 2013.  After the retirement, the defendant was appointed as a Clinical Associate Professor (Honorary) at the Stanley Ho Centre for Emerging Infectious Diseases (CEID) of The Chinese University of Hong Kong (CUHK).

9.In 1992, the defendant invited 10 local microbiologists to set up the Hong Kong Association of Medical Microbiologists (HKAMM)  which was a non-profit-making organisation for promoting the interest and advancement of medical microbiology in Hong Kong.  Between November 1992 and December 1999, the defendant was the chairman of HKAMM, after that, he became an ordinary member of the HKAMM.

10.According to the records of HKAMM, “MAK Wai-ping” or “W.P.MAK”, “J.K.NG”, “K.P. AU YEUNG”, “C.C. XIAO” or “C.W. CHEUK” have never been its members or office-bearers.  The HKAMM never had any office in the PHLC.

11.On 24 December 1992, the defendant opened a bank account for the HKAMM with Kwong On Bank Limited (the KOB Account).  Later, the same became DBS Bank (Hong Kong)  Limited.  The defendant was the sole authorised signatory and the only person operating the KOB Account.

12.The defendant has a personal account held with the Hang Seng Bank (the HSB Account).  The defendant was the sole authorised signatory of the HSB Account.

2^nd charge

13.PulseNet International (PNI)  is a network of 7 national and regional laboratories dedicated to tracking foodborne infections worldwide.  PulseNet Asia Pacific (PNAP)  is the operational committee of PNI in the Pan-Pacific region. 

14.The National Institute of Infectious Diseases (NIID) was a research institute attached to the Ministry of Health, Labour and Welfare of the Japanese government.  NIID is a member of PNAP.

15.In 2005, NIID started hosting the PNAP meeting and the Pulsed Field Gel Electrophoresis (PFGE)  workshops in Asia.  At all material times, the defendant was a coordinator of PNAP.  Since 2005, NIID had obtained from the Japanese government a uniform annual research grant of 2 million Japanese yen to be awarded to each PNAP participating country, including Hong Kong, to support their researches.

16.In 2002 and 2004, Dr Watanabe, then Deputy Director General of NIID responsible for the overall operation and management of the NIID, met the defendant in a PNAP meeting when the defendant introduced himself as the vice-director of PHLC.  Dr Watanabe understood that the defendant was the responsible person of PNAP in Hong Kong. 

17.In each of the seven years between 2006 and 2012, the DH, with the coordination of the defendant, hosted the annual PFGE workshop at the PHLC. In December 2010, DH also hosted the PNAP meeting at the PHLC.  Dr Watanabe and his secretary maintained regular email contacts with the defendant, who was the only contact point in PHLC or DH in respect of these events.

18.In each year between 2005 and 2012, NIID had remitted the annual research grant of 2 million Japanese yen to PHLC as subsidies for research fees and hosting the annual PFGE workshop in Hong Kong, and an additional 1 million Japanese yen for hosting the PNAP meeting in 2010.  A total of 15 million Japanese yen has been remitted to PHLC or DH between the said period.

19.Every year between 2005 and 2012, the defendant, purportedly representing as the CMM of PHLC or DH, entered into a service agreement and a protocol with NIID for the hosting of the annual workshop at PHLC and the one signed in 2010 was also for the PNAP meeting.  In the service agreements, the defendant signed as CMM of either PHLC or DH.  Of the five agreements retrieved, two bore the stamps of HKAMM near the defendant’s signatures whereas one bore the stamp of DH.  The other two bore no stamp.  Of the three protocols retrieved, they bore a common clause added by the defendant, namely “the PHLC in Hong Kong will be responsible for the use of fund monies of 2,000,000 yen in the overall organization of the Workshop”.

20.In an email dated 7 September 2005 from the defendant to Dr Watanabe’s secretary (copied to Dr Watanabe)  bearing the subject “PulseNet funding”, the defendant gave the KOB Account as the bank account to receive the annual grant.  In another email of 15 September 2005, the defendant gave the PHLC address as the address of HKAMM.  Given the address of PHLC and HKAMM was the same, Dr Watanabe was given to understand that they belonged to the same entity.  Accordingly, all the 15 million Japanese yen research grants were remitted to the KOB Account.

21.Further, in response to Dr Watanabe’s secretary’s inquiries whether the defendant had received the annual grant, by reply emails dated 23 October 2008, 23 November 2010 and 13 February 2012 (all copied to Dr Watanabe)  the defendant replied “the Finance Office here” had duly received the grants.  Dr Watanabe believed that the Finance Office meaning the accounting department of PHLC.  He said all the research grants were supposed to be paid to PHLC or DH as a public health institution, not to the defendant as an individual.  Had he or NIID known that HKAMM had no relationship or connection with PHLC or DH, and the research grants were in fact remitted to the KOB Account which was solely controlled by the defendant, they would not have authorised the remittances.

22.Bank records showed that between 2007 and 2012, 11 million Japanese yen (equivalent to HK$939,243)  were remitted from the bank accounts of NIID to the KOB Account.  Shortly after each remittance, the defendant transferred the money from the KOB Account to the HSB Account or withdrew cash by cheques.  The total amount of money transferred to HSB Account as well as cash withdrawals is HK$931,450.

23.The head of PHLSB did not know research grants had been provided by NIID to the DH for holding the PFGE workshops and the 2010 PNAP meeting at the PHLC. 

24.The 7 PFGE workshops and the PNAP meeting were held in PHLC with the assistance from the defendant’s subordinates.

The WHO Case (3^rd, 5^th to 7^th charges)

25.WHO is a specialised United Nations agency directing and coordinating authority on international health work.  WHO purchased goods and services through its country offices.  The requesting Technical Officer (TO)  is responsible for negotiating with the supplier or service provider and preparing the required documents for the acquisitions of the goods and services. 

26.Upon approval by the designated authority, a contract comprising a covering letter and a “Technical Service Agreement” (TSA)  or an “Agreement for Performance of Work” (APW)  would be generated by the computer system.  There would be a Purchase Order number for each covering letter and the accompany TSA/APW.  The TSA/APW would be forwarded to the vendor, who should then return by post and email a signed TSA/APW together with a declaration that he or she was duly authorised by the vendor company to act and accept the terms of the contract on behalf of the company.  After receiving the declaration, the handling TO would proceed to acquire the services or goods and process the payments. 

27.To process the payment, the vendor would be asked to submit a “Supplier Creation/Modification Template” (the Supplier Template)  containing its details including the bank account information.

28.Between 2009 and 2014, in relation to 4 WHO projects (referred to as Project A, Project B (sub-divided into B1 and B2), Project C and Project D below), a TSA and 5 APWs were entered into between WHO and HKTRL.  The defendant was the only contact person in HKTRL or DH in respect of the 4 projects. 

3^rd charge

29.On 16 March 2009, Mr Gemert, then TO of the Stop TB Department of WHO, came to know the defendant when WHO was discussing with the defendant via emails about provision of technical support for studying drug resistance situation of TB in DPRK.  In July 2009, it was agreed that HKTRL would provide technical assistance by providing sputum containers and packaging materials to laboratory of the WHO Country Office in DPRK (WCO-DPRK), conducting anti-TB DST and providing reports for 200 specimens to be supplied by the National TB Reference Laboratory in DPRK, at a budget of US$62,675 proposed by the defendant (Project A).

30.Apart from meeting in person in a meeting, Mr Gemert only communicated with the defendant via the latter’s email account at DH.  By an email of 28 October 2009, the defendant sent a revised budget of US$38,788 to Mr Gemert. In the same email, the defendant provided him the Supplier Template stating the contractual partner’s name as HKAMM with an address of PHLC and the KOB Account. As the address of HKAMM was similar to that of HKTRL as shown in the list of the network of SRL, Mr Gemert and his superior believed that HKTRL and HKAMM belonged to the same entity and the KOB Account was the official bank account for HKTRL.  Accordingly, he never asked the defendant about the relationship between HKTRL and HKAMM. 

31.Eventually, a TSA was sent to the defendant for his signature and return. The contract period was said to be from 7 December 2009 to 30 May 2010 with a contract sum of US$38,788.  On 7 December 2009, the defendant returned by email a TSA with his signature and a signature purportedly signed by “Dr WAI PING MAK” from the “Finance Office”.  There was also a stamp of HKAMM.  In the same email, the defendant also declared that he, as CMM, was duly authorised to represent HKAMM which accepted the terms of the TSA.

32.On 11 December 2009, the defendant emailed Mr Gemert a scanned copy of an invoice issued by HKAMM with a signature of the defendant and another signature purportedly signed by a “W.P. Mak”. 

33.Later, the defendant sent Mr Gemert an invoice purportedly issued by the “Accounts Office” of HKAMM bearing signatures purportedly by a “Wai Ping Mak” as the “Finance Officer” and a “T.K. Ng” as the “Auditor”.

34.Respectively on 18 December 2009 and 4 January 2011, the WHO processed the contract fee of US$7,779 and US$31,009 for the HKTRL and remitted the payments to the KOB Account. 

35.Mr Gemert said that had he known that (i)  HKTRL was unaware of the existence of Project A and the contract in question; (ii)  HKAMM was a separate body which had no official connection with HKTRL; (iii)  the KOB Account was not the official bank account of HKTRL, WHO would have stopped dealing with HKAMM. Furthermore, Mr Gemert realised that the defendant had failed to disclose to or intentionally withheld the fact from him that HKTRL and HKAMM were two separate organisations, and the funds were in fact not for the activities described in the TSA.

36.Bank records showed that 2 remittances in a total sum of US$38,788 (equivalent to HK$300,858.85)  were made from the bank account of WHO to the KOB Account.  Shortly after each remittance, the defendant transferred the money by cheques to the HSB Account.  Total amount of money transferred to the HSB Account is HK$300,500. 

4^th charge

37.The Foundation for Innovative New Diagnostics (FIND)  is a non-profit organization which provided innovative and affordable diagnostic products to developing countries.  Bill and Melinda Gates Foundation (BMGF)  engaged FIND to provide consultancy services to strengthen and expand TB laboratory services in China.  Mr O’Brien was then Head of Production Evaluation and Demonstration and Consultant of FIND.  FIND outsourced part of the technical and laboratory services to HKTRL which later became a party to the project. 

38.The defendant was the only contact person for HKTRL.  He was heavily involved in planning and initial implementation of the project.  Mr O’Brien communicated with him via his official email of DH. 

39.For the purpose of settling the Memorandum of Understanding (MOU), the defendant had submitted a budget estimation which represented the consultant fee, the proficiency testing panel, training and technical assistance relating to anti-TB DST provided by HKTRL for the period between 2009 and 2012.

40.On 23 March 2009, the defendant sent an email to Mr O’Brien attaching a draft MOU, on which the defendant inserted the name of HKAMM next to HKTRL and described it as a non-profit agency providing TB reference laboratory services and having its headquarters at PHLC.  The defendant told Mr O’Brien that FIND could not contract with HKTRL for the project directly.  Mr O’Brien believed that HKAMM would receive payment on behalf of HKTRL for the work performed by HKTRL. 

41.The defendant also told Mr O’Brien that the “Finance Office here” had suggested the budget estimation at US$223,959.  Mr O’Brien was led to believe that the Finance Office was the finance department of HKTRL with which the defendant was employed, and HKTRL was charging FIND for the project, and the defendant represented HKTRL to negotiate with FIND on budget matters.

42.On 12 May 2009, the defendant signed the MOU (valid for 3 years)  as CMM on behalf of HKTRL/HKAMM.  There was a stamp of HKAMM and a purported signature of “W.P.MAK” who signed “for and on behalf of HKAMM”.  FIND would release payments to HKTRL by 3 instalments totalling US$223,960.

43.According to the completed “Bank Account Details for payment” attached with a letter from the HKAMM to FIND bearing a purported signature of “W.P.MAK”, HKAMM’s postal address was same as that of PHLC, whereas the KOB Account was specified as the account to receive the payment for the project.

44.Based on the signed MOU and the bank account information provided by the “Finance Office” of HKTRL, in June 2009, Mr O’Brien approved FIND to release 3 payments to the KOB Account. 

45.On 30 June 2010, the defendant emailed Mr O’Brien the first summary financial report purportedly issued by HKAMM with the defendant’s signature and signatures purportedly by “J.K.NG” and “W.P.MAK”. 

46.On 18 November 2011, Mr O’Brien sent an email to the defendant and offered an extension of work with HKTRL for an additional 6 months at a contract sum of US$15,991, and asked if there was any unspent fund.  The defendant replied by email that he had “checked with the Finance Office” which confirmed that there was no unspent fund.  He also accepted the offer for extension of work on 22 November 2011.

47.Mr O’Brien then prepared another MOU which was later signed by the defendant as “CMM on behalf of HKTRL/HKAMM” on 28 January 2012.  The second MOU, at a contract sum of US$15,991, was said to be expired on 15 May 2012.  On 30 January 2012, the defendant sent an invoice of HKAMM with the purported signature of “W.P.MAK” and “J.K.NG” for the payment of the extension work.  On 5 March 2012, Mr O’Brien approved the final payment of US$15,991 to the KOB Account. 

48.Bank records showed that 4 remittances in the total sum of US$239,951 (equivalent to HK$1,860,926.84)  were made from the bank account of FIND to the KOB Account between 9 June 2009 and 5 March 2012.  Shortly after receipt of each payment, the defendant transferred the money to the HSB Account by cheque. Total amount of money transferred to the HSB Account is HK$1,675,500.  The defendant also transferred a total sum of HK$190,000 to a joint account between the defendant and his wife held with the HSBC.

49.Mr O’Brien said he was given to understand that the monies remitted by FIND were for supporting the services rendered by HKTRL for the project.  Had he known that the monies had been received by the defendant personally, he would not have approved the remittances to the KOB Account.  Although he was satisfied with the work performed, as the monies were not received by the HKTRL, he considered that FIND and himself had been deceived by the defendant.

5^th charge

50.Dr Mandal was responsible for disease control such as TB in DPRK.  In April 2012, Dr Mandal intended to send 30 positive culture isolates to HKTRL for testing with a view to assessing the situation of drug-resistant TB in DPRK.  The defendant sent a proposal dated 12 April 2012 to him, setting out the technical assistance to be provided by HKTRL including a budget estimation of US$15,981 (Project B1). 

51.Dr Mandal was the TO of the project. Before engaging HKTRL, he had requested the defendant to provide details of the bank account to receive the payment.  On the Supplier Template dated 10 April 2012, the defendant stated that the supplier was the HKTRL but the bank account holder and number were HKAMM and the KOB Account respectively.  When queried by the administrative officer of the WCO-DPRK, the defendant sent an email of 10 April 2012 to WCO-DPRK and Dr Mandal claiming that:

“The HKTRL does not hold an independent bank account. All financial transactions of HKTRL with external parties work through this arrangement with the Hong Kong Association of Medical Microbiologists which is professional organization and our working partner. The rationale of this is the legal aspects of financial arrangements do stay outside of government commitments. This also enables internal administrative monitoring and evaluation.”

52.Believing that HKTRL had no independent bank account and HKAMM was HKTRL’s working partner, WHO’s Global Service Centre (GSC)  created an account for HKTRL. 

53.Dr Mandal later prepared a memorandum and an APW was sent to the defendant for his confirmation.  The contract period was from 23 April 2012 to 30 June 2012 with a contract sum of US$15,981.  On 25 April 2012, the defendant returned by email a signed APW with his signature as “Consultant of TB Reference Laboratory & on behalf of HKAMM” and a signature purportedly by “W.P.MAK”.  There was also a stamp of HKAMM.

54.On 3 July 2012, the defendant sent Dr Mandal an email saying that among the 30 culture tubes received, some might have been contaminated.  On 9 July 2012, based on the proposal of project B1, Dr Mandal sent to the defendant another draft proposal requesting an additional testing on 5 isolates and retest the first batch of 30 isolates at a budget sum of US$9,388 (Project B2).

55.On 12 July 2012, the defendant accepted the new proposal and a new APW was sent to the defendant for his confirmation.  The contract period was from 16 July 2012 to 31 August 2012 with a contract sum of US$9,388.  The defendant returned by an email dated 18 July 2012 an APW which was signed by the defendant as “Consultant, TB Reference Laboratory for & on behalf of HKAMM.”

56.On 29 December 2012, the defendant submitted to the WHO 2 invoices from HKTRL, both bearing the purported signatures of “W.P.MAK for and on behalf of HKAMM”, and requesting the payments of Project B1 and B2 respectively in the sum of US$15,981 and US$9,388 to be remitted to KOB Account.  WHO then remitted a total sum of US$25,369 (equivalent to HK$196,383.97)  to the KOB Account on 22 January 2013.  On 25 January 2013, the defendant transferred a sum of HK$196,000 by cheque from the KOB Account to the HSB Account.

6^th charge

57.In November 2012, Dr Mandal started discussing with the defendant about sending 4 national officials from DPRK for a two-week training at HKTRL in March 2013.  On about 19 February 2013, the WHO received a letter from the Director of Health about DH’s willingness to assist in the study tour at HKTRL, and the letter contained contacts of Dr Lo. 

58.The defendant, in an email 25 February 2013, falsely represented to Dr Mandal that HKTRL would be under renovation in March 2013.  He also sent Dr Mandal a proposal with a budget of US$4,000 and a tentative programme for the project.  He suggested visiting the laboratories at the CUHK instead.

59.As Dr Mandal had already negotiated with the defendant and believing what the defendant had stated in his email of 10 April 2012 stands[1], he forwarded the DH’s reply letter to the defendant, and the defendant replied that he would contact Dr Lo for the matter.  As such, Dr Mandal believed that DH had acknowledged and supported the WHO’s request for the tour and he did not make further contact with Dr Lo.

60.An APW was therefore sent to the defendant at the address of HKTRL for his confirmation of HKTRL’s logistic support for the study tour.  The contract period was from 29 April 2013 to 29 June 2013 with a contract price of US$4,000 (Project D).

61.On 14 March 2013, the defendant returned a signed APW in capacity as “Consultant for and on behalf of HTKRL/HKAMM” with a signature purportedly by “W.P.MAK” and a stamp of HKAMM. 

62.The study tour was duly organised by the defendant at CUHK with the assistance from staff of CEID.

63.The defendant sent a report dated 29 May 2013 to Dr Mandal in respect of Project D, and the latter agreed to pay the contract fee to the KOB Account.  The defendant then sent him an invoice dated 5 June 2013 bearing the names of both HKTRL/HKAMM.

64.2 remittances in the total sum of US$4,000 (equivalent to HK$30,977.50)  were made from the bank account of WHO to the KOB Account.  Shortly after receipt of each payment, the defendant transferred the money to the HSB Account by cheque. 

65.HKTRL was not under renovation in March, April or May 2013. 

7^th charge

66.Dr Mandal proposed to further engage HKTRL to test 100 isolates sent from DPRK.  According to Dr Mandal, on or about 25 January 2013, the defendant sent him on email using a Gmail account, falsely claiming that as HKTRL would be under renovation in April or May 2013, the receipt and dispatch of isolates had to be sent to an address in Faculty of Medicine, CUHK, Prince of Wales Hospital instead of HKTRL.  On 26 January 2013, Dr Mandal made inquiry with the defendant who reassured that the tests would still be done by HKTRL under his guidance.  The isolates were delivered to the CUHK address since February 2013. 

67.An APW was sent to the defendant of HKTRL for his confirmation.  The contract period was from 6 February 2013 to 15 October 2013 with a contract sum of US$61,792 for testing 100 isolates (Project C). 

68.On 6 March 2013, the defendant returned by email with his declaration that he was duly authorised to represent the HKTRL/HKAMM to accept the terms of the APW, with a signed APW with his signature as “Consultant for and on behalf of HKTRL/HKAMM”, a signature purportedly by “W.P.MAK” and a stamp of HKAMM.  According to the APW, an initial payment of US$15,448 would be paid to HKTRL on signing of the APW and the balance in two instalments.

69.On 21 August 2013, the defendant sent WHO an invoice issued by HKTRL/HKAMM at CUHK address, requesting the partial contract sum of US$21,627.20 to be made to the KOB Account with a signature purportedly signed by “W.P.MAK for and on behalf of HKAMM” and a stamp of HKAMM.

70.Later, as an additional 30 isolates needed to be sent to HKTRL for culture and DST testing, WCO-DPRK needed to amend the existing APW to cover the actual cost incurred for testing of a total of 130 isolates. 

71.During the negotiation of the revised APW in August 2013, the finance team of WCO-DPRK asked why there was CUHK address and the appearance of the name of HKAMM on the invoice submitted. The defendant claimed that with effect from 1 April 2013, HKTRL no longer dealt with external clients due to an organisational restructuring.  Hence, all external dealings, including the signing of APW, had to be done through a separate agency/professional society.  The defendant claimed this explained why the stamp of HKAMM appeared on the invoice.

72.Later, a revised APW was sent to the defendant of HKTRL for his confirmation.  The contract period was from 6 February 2013 to 31 March 2014 with a revised contract price of US$75,903.  On 16 December 2013, the defendant returned by email to WHO the new signed APW with a signature purportedly signed by “C.W.CHEUK as Ag. Accountant in-office for and on behalf of HKAMM”.

73.Another invoice from HKAMM with the CUHK address dated 18 December 2013 and bore a signature purportedly by “C.W.CHEUK as Ag. Account-in-office for and on behalf of HKAMM” was sent to WHO, requesting for payment of US$38,827.80. 

74.Bank records showed that 3 remittances in a total sum of US$75,903 (equivalent to HK$587,784.47)  were made from the bank account of WHO to the KOB Account. 

75.The HKTRL was never under any organisational restructuring in 2013. 

76.Dr Mandal said the defendant never told him or his colleagues of the defendant’s retirement from DH in April 2013.  Had he known that HKTRL was actually unaware of the payments of the contract fees for these projects, and HKAMM was a separate body without any connection or relationship with DH or HKTRL, he would have asked WHO to stop dealing with the defendant and stop paying HKAMM.  All along WHO only intended to contract with HKTRL as an institution.  Had he known that the defendant had already retired at the time of Project D, he would not have engaged the defendant for the project.

77.The total amount of money received by the defendant via the KOB Account under the 2^nd to 7^th charges is HK$4,256,931.63. 

78.All the office-bearers of HKAMM since its establishment said they had no knowledge that the defendant was using the name of HKAMM to deal with various organisations including NIID, WHO and FIND.  HKAMM never had organised any events or activities in collaboration with DH or HKTRL.  They never heard or knew any person by the name of “MAK WAI PING” or “W.P.MAK” or “J.K.NG” or “C.W.CHEUK”.

79.Dr Mak Wai-ping had no knowledge of the dealings between the defendant and WHO and FIND.  He had never seen or signed any documents relating to WHO and FIND and he never was an office-bearer or a member of HKAMM.

80.At all material times, the defendant had no authority to enter into any agreements or contracts with any outside organisations without DH’s approval, and DH never knew the defendant had entered into agreements or contracts with NIID, WHO and FIND.  DH would not allow the defendant to cause DH’s staff to carry out any services for these outside organisations, and at the same time received payments from the organisations under his sole control.  If the defendant had received any monies from any organisations, he was required to disclose the same to DH so that arrangements could be made to have the monies deposited into the government’s bank account.  DH never received payments from any of these organisations.  HKAMM had no connection or relationship whatsoever with DH or any organisation under DH. 

81.On 6 May 2022, the defendant made restitution of HK$4,256,931.63, the total amount involved in the 2^nd to 7^th charges, to the DH. 

82.The defendant has a clear record.

Mitigation

83.The defendant was born in Hong Kong.  He is now aged 64, married with 2 children. 

84.He became a doctor in 1984 and had since then served in the government service until April 2013 when he retired.  He was heavily involved in medical microbiology, and in year 1997 he became a Consultant Medical Microbiologist in the Public Health Laboratories in DH.  He was appointed member of various committees on infectious diseases, microbiology research and training centre in and outside Hong Kong.  He was involved also in research contracts and had been teaching in and outside Hong Kong.  He was also involved in a lot of community work.

85.Defence counsel conceded that the defendant knowingly failed to seek DH’s approval to enter into the relevant contracts, failed to disclose that monies were being paid by the relevant organisations, and the defendant received these monies with bank accounts under his control.  He submitted the defendant is deeply remorseful for these incidents and regrets the adverse consequences that had caused to DH, WHO, PNAP, FIND and all aggrieved parties.

86.Defence counsel said the defendant was heavily involved in the projects, workshops and study tours covered in the charges, and that he had caused completion of all these contract works satisfactorily, and the international standing of HKTRL had not been adversely affected.  It was also said that HKTRL retains, up to the date hereof, its SRL status and some credit should go to the defendant. Defence counsel said it is the shared sentiment of many that HKTRL earned its SRL status because of the defendant’s leadership and the defendant was therefore invited to serve as the SRL’s director. 

87.Further, the defendant had in discharge of his social and moral obligations coordinated and assisted the mainland government authorities in TB prevention as well as contributed to the global recognition of their TB laboratories as reputable reference laboratories.

88.Defence counsel also said the defendant used to be a man of positive good character before these offences and he had a fall from grace at the age of 64.  It was said that in his over 30 years of service in Hong Kong Government, he had served the local community, mainland China, neighbouring countries in Asia Pacific in saving lives from pervasive and deadly pandemic.

89.Defence counsel emphasised that it was the defendant’s life goal to serve the community passionately and altruistically by working in the prevention of infectious diseases and in medical research.  It was said the defendant was a greatly respected member of the profession in Hong Kong and a well-known expert in his field.

90.Defence counsel submitted that the defendant had, in an early stage of the SARS epidemic, volunteered to work on site at Amoy Garden outbreaks by collecting and investigating samples of virus at the time when little was known about the SARS.  He had willingly put himself in grave uncertainty and dangerous situation. 

91.He further said that the defendant has also offered his experience, knowledge and efforts in assisting organisations beyond his work within the DH, such as the Hong Kong Tuberculosis, Chest and Heart Diseases Association, Project Concern Hong Kong (a medical group for the low-income groups), Leprosy Project (a group serving the leprosy community in Sichuan), Hong Kong Medical Science Museum, also giving talks and writing journals.  The defendant is highly regarded in these works and recognised as being a kind-hearted and passionate person who is also generous with his donations.

92.In support of these contentions, defence counsel submitted a colossal amount of letters from the defendant’s former colleagues in DH and universities, members of the medical profession in the public health sector both locally and overseas, former working partners from NGOs both in Hong Kong and overseas, charitable organisations in Hong Kong and the mainland China, friends and acquaintances from his voluntary work with the Catholic Diocese and as well as the defendant’s personal friends and family members.  There were even letters of recognition from Dr O’Brien as well as Dr Mandal, being the victims in some of these charges.

93.Defence counsel further submitted that on 6 July 2021, the defendant pleaded not guilty to the 1^st to 7^th charges in the District Court.  Trial was then fixed to 23 May 2022 with 20 days reserved, and a PTR hearing was fixed to 19 April 2022.  He submitted that after the plea date and prior to the 1^st PTR date, new documents including further witness statements for existing witnesses and new witnesses’ statements, were served by the prosecution up to 14 April 2022.

94.At the 1^st PTR, defence counsel indicated that the trial might be a short matter and they asked for a short adjournment, therefore there is fixing of a 2^nd PTR on 4 May 2022.

95.At the 2^nd PTR, the defendant indicated that he would plead guilty to the 2^nd to 7^th charges on condition that the 1^st charge would be left on the court file.  The defendant also indicated he would be willing and able to make full restitution of the sums involved in the 2^nd to 7^th charges on a voluntary basis once the recipient of the payment is known to the defence.  In fact, voluntary full restitution has been made shortly before trial and after the 2^nd PTR when the payee of the restitution is made known.  Defence counsel therefore urged this court to give the defendant 25% sentencing discount. 

96.He also said that in the present case, the defendant had made voluntary restitution before trial, as opposed to the defendant in the case of Secretary for Justice v Wong John[2] where the defendant only made restitution following conviction after trial and pursuant to court order.   He submitted that restitution is a recognised valid mitigating factor of real weight and where full repayment is made, a significant discount beyond the usual discount for a guilty plea should be given[3].   

97.Defence counsel referred this court also to the case of HKSAR v Ma Kim Hung[4] and Secretary for Justice v Hui Siu Man, Ricky[5], where restitution was made at an early stage and coupled with other strong mitigating factors such as positive good character and prosecution delay, the court allowed an additional discount of 30% from the sentencing starting point and even suspended sentence.

98.Further, defence counsel submitted the delay in prosecution here is significant.  There was a lapse of almost 7 years between the date of arrest and the first court appearance, and the same could not be justified by assertion of extensive investigation.  He said the delay is unreasonable, even considering the need to interview overseas witnesses and the trace of funds.  The vast majority of fund flows involved only 2 bank accounts, ie the defendant’s HSB Account and the HKAMM’s KOB Account.  He also referred this court to the case of Secretary for Justice v Ip Hon Ming & Anor[6], HKSAR v Law King Yip & others[7] and HKSAR v Chiu Chi Wing[8].

99.He submitted that the defendant was arrested by ICAC on 12 June 2014 and was on bail until 25 November 2015 when he was released on a non-prejudicial basis.  The defendant did not hear from ICAC until 9 April 2021 when he was told that he would be charged, and he first appeared in court on 14 April 2021. 

100.He said the delay in the present case falls within the “sixth kind” as spelt out in the Chiu Chi Wing case and therefore is a valid mitigating factor.  He said by the nature of the defendant’s release in 2015 and the time elapsed since, it had caused the defendant uncertain suspense and expectation that he would not be charged and sued.

101.Defence counsel submitted further that as a result of the convictions, the defendant would lose his pension and brought upon himself reputational damage.

102.He submitted that the court should consider the totality principle and impose concurrent sentence, wholly or partly, to the sentence imposed for the 3^rd to 7^th charges.  He said that the 3^rd, 5^th and 7^th charge relate to the projects relating to the TB outbreak in DPRK from 2009 to 2013 and were coordinated by WHO; the 6^th charge relates to a workshop for training of DPRK officials tackling the outbreak and was coordinated by WHO; whereas the 4^th charge relates to a project within the same time frame and the same purpose of detecting and containing the TB outbreaks in and around the region, coordinated by the China Ministry of Health and FIND. 

103.Defence counsel submitted the defendant’s offending behaviour and the overall criminality of the 3^rd to 7^th charges arose out of the same underlying incident, ie the various projects and workshop were all actions taken to address the same problem. 

104.He urged this court to consider a suspended sentence or further sentencing discount by reason of the defendant’s guilty plea, restitution, positive good character and public service, and unreasonable delay in prosecution.

Discussion

105.Before sentencing, this court has carefully considered all submissions in mitigation by defence counsel, letters and documents submitted as well as legal authorities cited.

106.There is no sentencing tariff for the misconduct in public office or the fraud charge. 

107.A person convicted of misconduct in public office is liable to imprisonment for 7 years and a fine, and a person convicted of fraud is liable to imprisonment for 14 years.

108.The sentence to be imposed in each case would very much depend on the facts of the particular case. 

2^nd charge

109.At the material time, the defendant was holding a very senior position in the Centre for Health Protection and was the person in charge of a number of laboratories including HKTRL. 

110.In commission of this offence, the defendant had misrepresented to Dr Watanabe of NIID that HKAMM was the same as PHLC or DH in Hong Kong, or otherwise had official relationship or connection with PHLC or DH, and that the defendant himself had the authority of DH to enter into the 7 service agreements with NIID for organisation of meeting and workshops between 2006 and 2012; and he did enter into these agreements without authority.  He also falsely represented to NIID that the grants from them were for PHLC or DH to host events aforesaid when he had directed the grants to be paid into the bank account of HKAMM, ie the KOB Account which was within his own control.

111.From the bank records, between 2007 and 2012, 11 million Japanese yen (equivalent to HK$939,243)  was sent to KOB Account, most of which was subsequently withdrawn by cash or transferred into the defendant’s HSB Account.

112.In carrying out the contracted works, the defendant had made use of the resources of DH.  From the Agreed Facts concerning this charge, the defendant has signed as CMM of either PHLC or DH.  On these signed service agreements, some of them bore stamps of HKAMM or that of DH, and the defendant had added in the protocols retrieved that the PHLC in Hong Kong would be responsible for the use of the grants when in fact he himself had appropriated all of the grants.

113.The defendant also gave the PHLC address as the address of HKAMM.  There is no doubt that this was done to lead NIID into believing that both of these entities were the same, if not, at least closely related entities.

114.In response to the inquiries by secretary of Dr Watanabe in 2008, 2010 and 2012, the defendant replied by email (copied to Dr Watanabe)  that “the Finance Office here” had received the grants.  Again, this was done to mislead them into believing that PHLC had received the money. 

115.The defendant orchestrated a scheme to misappropriate funds which should belong to PHLC/DH, the defendant’s employer, for the benefit of himself over this prolonged period.  The same involved making numerous false representations.

116.The offence continued for a period of 6 ½ years.  The amount involved is HK$939,243.

117.The defendant had breached and abused the trust reposed in him.  This is a serious case of misconduct in public office.

118.In the Court of Appeal case of HKSAR v Cheung Mee Kiu[9], HKSAR v Ng Kwok Wing[10] and HKSAR v Yeung Chiu[11], it is laid down that for an offence of theft involving a breach of trust with an amount between $250,000 and $1 million, the range of sentence should be between 2 to 3 years’ imprisonment.

119.Considering all the circumstances of the case, in particular, the planning and complexity of the scheme devised by the defendant in the commission of the offence, the persistent and sustained misconduct over the time during which the offence took place, the breach of trust reposed in the defendant, the amount of money involved, the adverse effect of the offence on the reputation of DH and PHLC, this court considers that the only appropriate sentencing option is one of imprisonment.  The appropriate sentencing starting point for this charge, which is directed at the offence and its seriousness, is 3 years’ imprisonment.

120.The defendant has indicated his guilty plea about 3 weeks before trial. As a result of which, there is no need for the 20 days’ trial and the calling of overseas witnesses in different time zones and jurisdictions, a lot of court time and resources have been saved.  For these reasons, the court is willing to afford him sentencing discount of 23%, bringing the sentence to 27 months and 21 days’ imprisonment.

121.This court accepts that the defendant used to be a man of positive good character, had significant contribution to Hong Kong, mainland China as well as the neighbouring countries in terms of public health and the prevention of diseases, as submitted by defence counsel.

122.It must be noted, however, that it is partly his job duties in DH and that whilst this court accepts submission by defence counsel that the defendant’s life goal was to serve the community passionately in the prevention of infectious disease and in medical research, this court has reservation regarding the submission by defence counsel that the defendant did it all altruistically.  The commission of the offences in this case speaks for itself. 

123.Nevertheless, from the bulk of letters in mitigation submitted by defence counsel, this court accepts that the defendant had devoted extra time and efforts in voluntary service beyond that of his duty in the DH, using his medical skills.

124.In view of his positive good character, contribution and achievements during his 30-odd years’ public service both in Hong Kong and elsewhere, the court will further discount his sentence by 5 months, bringing the sentence to 22 months and 21 days’ imprisonment.

125.Further, the defendant had made full restitution before trial, and it is recognised as a valid mitigating factor. 

126.In the cited case of Leung Shuk Man, the Court of Appeal gave the defendant a sentencing discount of 50% after her timely plea and early restitution for money stolen.  In the cited case of Wong Kam Tat, the defendant made restitution to the victim after his plea of guilty and the court gave the defendant 6-month discount for a sentencing starting point of 5 years, ie 10%.

127.Similarly, in the present case, the court will afford the defendant sentencing discount under this charge of 3 months and 24 days, bringing the sentence to 18 months and 27 days’ imprisonment.

128.Now, coming to the issue of delay in prosecution, no doubt there was a lapse of nearly 7 years since the defendant was first arrested by ICAC on 12 June 2014 and later released from bail on a non-prejudicial basis on 25 November 2015 to the time when he was actually charged on 12 April 2021. 

129.After considering the chronology of events prepared by the prosecution and upon hearing the explanation for the time taken for investigation by the prosecution, this court finds that subject to the time taken for the legal advice by the Department of Justice, there could not be said to have unreasonable delay on the part of prosecution. 

130.It is true that only 2 Hong Kong bank accounts were involved, but in order to establish the source of funds to these 2 bank accounts, the assistance from the parties including WHO, NIID, BMGF, FIND as well as Swiss Central Authority, Central Authority of Japan and USA have to be sought.

131.Time taken for arrangement of interviews of overseas witnesses, their attendance in court as well as request for documents, waiver of immunities through the Office of Commission of the Ministry of Foreign Affairs of China are matters that would be outside the control of the prosecution in this case.  The prosecution needs to rely on the Mutual Legal Assistance in Criminal Matters Ordinance in the investigation and the prosecution of the case.  The prosecution has no control on the way and the time taken for reply to questions or requests for assistance made to these parties in foreign countries or foreign entities.  The only criticism that could be levelled against the prosecution was the time taken for them to obtain the legal advice.  Delay is in the region of no more than 1 year.

132.This court accepts that the delay here of 1 year and no more falls within the sixth category of delay identified by Buss JA in the Court of Appeal of Western Australia in Scook v The Queen[12], referred to in paragraph 37 of the judgment of the Court of Appeal in HKSAR v Chiu Chi Wing case, that the delay has resulted in significant stress for the offender or left him to a significant degree in uncertain suspense.

133.This, though a valid mitigating factor, is one that only warrants a short sentencing discount having regard to the length of delay.  Accordingly, under this charge, the court is willing to give a sentencing discount of 27 days.

134.It is said by reason of the conviction the defendant would lose his pension.  The defendant retired in April 2013 and has since then been receiving, obviously, all the pension payments, and the submissions from defence counsel must have meant after conviction the periodical pension payments.

135.In the case of Secretary for Justice v Shum Kwok Sher[13], it was said that whilst the same contributed to the punishment received by the defendant and it was right for the judge to take this factor into account provided it was not given too much weight, it was said the defendant knew what he was doing and for many years he took a calculated risk that he would not be found out which, in the end, did not pay off. 

136.In the circumstances of this case, this court is not minded to give the defendant further sentencing discount by reason of this factor.

137.Accordingly, for the 2^nd charge, the defendant is sentenced to 18 months’ imprisonment. 

138.Having regard to the seriousness of the offence and circumstances surrounding its commission, in the absence of exceptional circumstances, this court does not find it appropriate to suspend the sentence.

3^rd charge

139.The misconduct of the defendant here is knowingly making a false representation to Mr Gemert of WHO that HKAMM was a contractual partner of HKTRL or DH in Hong Kong and the defendant had the authority of HKTRL or DH to enter into the TSA with WHO for the provision of services by HKTRL; and he entered into the said agreement without authority; and also knowingly making false representation to WHO that US$38,788 service fee was meant to be for HKTRL or DH to implement the services when this service fee was dishonestly appropriated by the defendant, to the KOB Account of which he had sole control, and the service fee was ultimately for his own benefit.

140.The defendant stated the address of HKAMM as an address of PHLC.  The defendant did also sign and return a TSA bearing the name of “Dr WAI PING MAK” from the “Finance Office”.  It is agreed fact that HKAMM never had a member or officer bearing the name of Wai-ping Mak.

141.As in the 2^nd charge offence, the defendant orchestrated a scheme to misappropriate the service fee which should belong to his employer for the benefit of himself over a prolonged period, in the course of which making false representations.  The defendant also made use of the HKTRL’s resources in implementing the contractual works. 

142.The sum involved is US$38,788 (equivalent to HK$300,858.85).  The sum was meant for the defendant’s employer, DH or HKTRL.  The offence continued for 2 years and 2 months. 

143.Again, this is a serious case of misconduct in public office which involved a serious breach of trust reposed in the defendant.

144.The appropriate sentencing starting point is 2 years and 3 months’ imprisonment, of which the defendant is entitled to 23% by reason of his guilty plea, bringing the sentence to 20 months and 23 days’ imprisonment.  He is entitled to a discount of 2 months and 21 days by reason of restitution, 4 months by reason of his positive good character and public service, 26 days by reason of the delay in prosecution. 

145.The defendant is therefore sentenced to 13 months and 6 days’ imprisonment for the 3^rd charge and, similarly, suspended sentence is not appropriate.

5^th charge

146.The modus operandi in the commission of this offence by the defendant is similar to that of the 3^rd charge. 

147.The offence continued for about 9 months and the money involved is US$25,369 (equivalent to HK$196,383.97). 

148.In the commission of this offence, the defendant again misrepresented to Dr Mandal of WHO in the Supplier Template that the supplier of service was HKTRL, but as HKTRL did not hold an independent bank account, all financial transactions of HKTRL with third parties has to go through its working partner HKAMM and make payments into the KOB Account.  Again the purported signature of “W.P.MAK” was found in the contractual documents. 

149.The appropriate sentencing starting point for this charge is 23 months’ imprisonment.  Similarly, the defendant is entitled to 23% sentencing discount by reason of his guilty plea, bringing the sentence to 17 months and 21 days’ imprisonment. He is entitled to a discount of 2 months and 9 days by reason of restitution, 3 months and 9 days by reason of his positive good character and public service, and 24 days by reason of prosecution delay.

150.The defendant is therefore sentenced to 11 months and 9 days’ imprisonment for the 5^th charge.

151.For the same reason, it is not appropriate for suspended sentence.

4^th charge

152.The misled party under this charge is Mr O’Brien of FIND.  The modus operandi of this offence is similar to that of the 2^nd, 3^rd and 5^th charge.  The offence continued for 3 years and 2 months-odd, and the money involved is US$239,951 (equivalent to HK$1,860,926.84).

153.Again in the Memorandum of Understanding signed by the defendant, there appeared a purported signature of “W.P.MAK”, allegedly signed “for and on behalf of HKAMM”.  The KOB Account of HKAMM was specified as the account to receive the payment for the project, and the postal address of HKAMM was said to be the same as that of PHLC.

154.On 30 January 2012, the defendant sent an invoice of HKAMM bearing the alleged signature of “W.P.MAK” and “J.K.NG”, both of whom were never members or officers of HKAMM.

155.The appropriate sentencing starting point here is 3 years and 9 months’ imprisonment.  The defendant is entitled to sentencing discount of 10 months and 11 days by reason of his guilty plea, 4 months and 16 days by reason of his restitution, 6 months and 13 days by reason of positive good character and public service and, lastly, 1 month and 13 days by reason of the delay in prosecution.

156.The defendant is therefore sentenced to 22 months and 7 days’ imprisonment for the 4^th charge.

6^th charge

157.The defendant was convicted of a fraud charge involving breach of trust here, at least for the period ending 12 April 2013 as he retired on 13 April 2013. 

158.Offence took place over a period of 1 year and 3 months, up to 3 July 2013, and the amount involved is US$4,000 (equivalent to HK$30,977.50). 

159.The defendant had by deceit falsely represented to Dr Mandal of WHO, the same victim under the 5^th charge, that HKAMM and HKTRL were working partner and that HKTRL had no independent bank account to receive payment from WHO, with intent to defraud Dr Mandal, inducing him and his colleagues to enter into an APW and transferring money into the KOB Account of HKAMM of which solely controlled by the defendant, for his own benefit.

160.The defendant knowingly misrepresented to Dr Mandal that HKTRL would be under renovation in March 2013 and suggested visiting other places instead.

161.On 14 March 2013 when the defendant returned the signed APW, he described himself as “Consultant for and on behalf of HKTRL/HKAMM” when he was on pre-retirement leave, and he was then just an ordinary member of HKAMM. Again, the “W.P.MAK” signature appeared in the signed APW. 

162.When the defendant later sent an invoice dated 5 June 2013 bearing the names of both HKTRL/HKAMM, the defendant had already formally retired from DH for nearly 2 months and he was just an ordinary member of HKAMM though he remained the sole signatory of the KOB Account.

163.Having regard to the nature of the fraud charges involving breach of trust and the circumstances of commission of the offence, the appropriate sentencing starting point here is 12 months’ imprisonment.  He is entitled to sentencing discount of 2 months and 23 days by reason of his guilty plea, 1 month and 6 days by reason of restitution, 1 month and 21 days by reason of his positive good character and public service contribution, and 11 days by reason of delay in prosecution.

164.He is therefore sentenced to 5 months and 29 days’ imprisonment for the 6^th charge.

7^th charge

165.This is a fraud conviction involving breach of trust by the defendant, at least for the period up to 12 April 2013. 

166.The defendant committed this offence in circumstances very similar to the 6^th charge offence.  Dr Mandal was defrauded by the defendant using the same false representations.  Offence continued for nearly 2 years, up to 31 March 2014, and the money involved is US$75,903 (equivalent to HK$587,784.47).

167.The appropriate sentencing starting point here is 2 years and 4 months’ imprisonment.  Similarly, the defendant is entitled to a sentencing discount of 23%, ie 6 months and 13 days, by reason of his guilty plea, 2 months and 24 days by reason of the restitution, 4 months by reason of his positive good character and public service, and 1 month and 3 days by reason of delay in prosecution.

168.He is therefore sentenced to 13 months and 20 days’ imprisonment for the 7^th charge.

Totality

169.The court now considers the totality principle, having regard to overall criminality of the defendant in this case, in order to determine the just and proportionate total sentence. 

170.The defendant was at the material time the person in charge of a number of laboratories including HKTRL under DH.  The convictions of the 6 charges show that between 1 September 2005 and 31 March 2014, ie nearly 9 years, the defendant had abused the trust reposed in him whilst committing these offences during this period.  He had benefitted himself the sum of $4,256,931.63, being monies intended for his employer, DH, but making use of the resources of the DH in the process.

171.In the course of commission of these offences, he had knowingly made numerous false representations, misleading organisations like WHO, NIID, FIND. The defendant made use of HKAMM as a contracting party in these transactions and organise activities with and for these third parties without the knowledge of the office-bearers of HKAMM.  The defendant used the signatures of people like “W.P.MAK” or “MAK Wai-ping” or “J.K.NG” in the issue of invoices or as signatories to these contractual documents for HKAMM, but none of the members or office-bearers of the HKAMM bear such names.

172.This is a serious breach of trust case which is practised over a long time, and the appropriate overall sentencing starting point would be 5 years and 6 months’ imprisonment.

173.A sentencing discount would be given for his plea, restitution, positive good character and public service contribution, and delay in prosecution respectively as 15 months and 6 days, 6 months and 18 days, 10 months, and 3 months. 

174.Total sentence for the defendant should therefore be 31 months’ imprisonment in this case.

175.The 3^rd and 4^th charge, both misconduct in public office charges, occurred largely within the same time frame.  Accordingly, sentence for the 3^rd and 4^th charge shall run concurrently with each other, and 9 months of the sentence for the 3^rd and 4^th charge shall run consecutive to the sentence in the 2^nd charge, the rest to run concurrently.

176.The 5^th, 6^th and 7^th charges involve the same victim, Dr Mandal.  The 6^th and 7^th charge are both fraud charges and although the 5^th charge is a misconduct in public office charge, the facts covering the commission of these offences are quite similar.  They also occurred largely within the same time frame. 

177.Accordingly, the sentence for the 5^th, 6^th and 7^th charge are to run concurrently with each other, and 4 months of the sentence for these three charges are to run consecutive to the sentence for the other charges, making the global sentence for the defendant at 31 months’ imprisonment.