HKSAR v. Yu Chun Man

CACC000259/2000

CACC 259/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 259 OF 2000

(ON APPEAL FROM DCCC 1090/1999)

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Coram: Hon Mayo Ag. CJHC, Leong JA and Stock J in Court

Date of Hearing: 19 September 2000

Date of Judgment: 19 September 2000

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J U D G M E N T

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Hon Mayo Ag. CJHC (giving the judgment of the Court):

1. The applicant who was D3 at the trial below pleaded guilty before H H Judge Davies in the District Court to a conspiracy to defraud contrary to Common Law. He was sentenced to 1 year 9 months imprisonment and now seeks leave to appeal against his sentence.

2. Particulars of the offence were:

"LI Che-hing, KO Chi-kwong and YU Chun-man, between the 1st day of July 1997 and the 30th day of April 1998, in Hong Kong, conspired together and with David Hendy, Carl VOIGT and other persons unknown to defraud the Buildings Department and the developer of the Tung Chung Station Development Project Package II (Site 4), namely Tung Chung Station Development Company Limited, by dishonestly:

1) constructing the bored piles for the foundation works of Tung Chung Station Development Project Package II (Site 4) (the project) otherwise than in accordance with the approved site plans under Buildings Department reference number 3/7337/96 and the 'Agreed Founding Levels';

2) falsely representing that the bored piles were constructed in accordance with the said approved plans under Buildings Department reference number 3/7337/96;

3) causing and permitting the said Buildings Department to consent to the commencement of pile cap construction for Block H1, H2, H3 & H4;

4) causing and permitting the said Tung Chung Station Development Company Limited to pay for work done otherwise than in accordance with the said approved site plans under Buildings Department reference number 3/7337/96 in relation to the project; and

5) causing and permitting the said Tung Chung Station Development Company Limited to pay for work which has not been done."

3. At the relevant time the applicant was the site engineer of I-P Foundations Limited which was responsible for the bored pile construction work at the Tung Chung Station Development.

4. According to the agreed facts senior management of I-P Foundations Limited gave instructions to the applicant's co-defendants at the trial below to drill bored holes to a level which was less than the prescribed length stated in the approved site plans. These co-defendants in turn passed on similar instructions to the applicant.

5. It is apparent from the agreed facts that the applicant took an active part in the conspiracy and was a party to the deceptions which were resorted to. 72 of the 76 bored piles were shorter than the prescribed length. Some to a very considerable extent.

6. The main instigators of this conspiracy absconded and did not face trial. D1 and D2 both pleaded not guilty and the trial lasted twenty days. The applicant gave evidence for the prosecution and it was largely as a consequence of this that he received a 50% reduction from the starting point adopted by the Judge. A further factor which was weighed by the Judge was that he accepted that none of the defendants had obtained any financial advantage themselves. Their motive for participating in the conspiracy was that they were able to keep their jobs.

7. In his home-made grounds of appeal the applicant states:

"This case was an offence of conspiracy, and Defendants 1 and 2 were also convicted. In this case, D1 and D2 acted as my superiors. However, I received a sentence with the highest starting point. Besides, D1 and D2 did not plead guilty at the first opportunity, but they could get a 30 or 50 percent discount in sentence. I, on the other hand, pleaded guilty at once and assisted the ICAC by acting as a tainted witness, but I did not get a sentence reduction as large as that of D2. Therefore, I do not think that the sentence was very fair and I believe I have the reason to appeal against sentence."

8. At first sight there would appear to be considerable merit in the contentions being advanced by the applicant. It is true that D1 was sentenced to only 1 year 9 months imprisonment and D2 to 6 months imprisonment. Having regard to the facts which have been outlined it is difficult to see how the Judge could have arrived at the sentences which he imposed.

9. An important factor which has to be weighed on this application is that the Secretary for Justice has made an application for the review of the sentences which were imposed upon all of the defendants in the trial below. If that application is successful it is likely that all or some of the sentences which were imposed will be increased.

10. Be that as it may one thing that is certain is that this conspiracy was a very serious one.

11. A starting point for offences of this nature of approximately 5 or 6 years imprisonment was certainly not excessive so far as the main perpetrators were concerned having regard to the disastrous consequences which could flow from a failure to comply with piling requirements.

12. It is clear from the agreed facts that the applicant was fully aware of the nature of the conspiracy. It can in no way be said that the sentence which was imposed upon the applicant was either manifestly excessive or wrong in principle. This being the case this application is dismissed.

Representation:

Mr I C McWalters, SADPP of the Department of Justice, for the respondent

Yu Chun-man, the applicant in person