HKSAR v. Ng Ching Yi and Another
Read the full judgment text of HCMA 33/1998 on BabelCite. This High Court CFI judgment was delivered on 9 October 1998.
1. On 26 November 1997, following a contested trial lasting six days, the appellants, NG Ching-yi and LEUNG Wing-yin, were each convicted of a joint charge of conspiracy to defraud by Mrs Julie Livesey, Permanent Magistrate sitting at Eastern Magistracy. On 11 December 1997 she sentenced each of them to six months' imprisonment. They appeal against their conviction but have abandoned their appeals against sentence. The charge on which they were convicted was framed as follows:
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HCMA000033/1998 HCMA33/98 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 33 OF 1998 (On Appeal from ESC 2605 of 1997) ------------
------------- Coram: Deputy Judge Lugar-Mawson in Court Date of hearing: 20 May 1998 and 28 August 1998 Date of Delivery of Judgment: 9 October 1998 --------------- J U D G M E N T --------------- 1. On 26 November 1997, following a contested trial lasting six days, the appellants, NG Ching-yi and LEUNG Wing-yin, were each convicted of a joint charge of conspiracy to defraud by Mrs Julie Livesey, Permanent Magistrate sitting at Eastern Magistracy. On 11 December 1997 she sentenced each of them to six months' imprisonment. They appeal against their conviction but have abandoned their appeals against sentence. The charge on which they were convicted was framed as follows: 2. Statement of offence: Conspiracy to defraud contrary to Common Law, and punishable under Section 159C(6) of the Crimes Ordinance Cap. 200. 3. Particulars of offence: NG Ching-yi and LEUNG Wing-yin, between June 1995 and May 1996 in Hong Kong, conspired together to defraud Ming Pao Newspaper Limited, (Ming Pao), by dishonestly and falsely representing, (1) That Full Arts Advertising and Production Centre, (Full Arts), was entitled to an advertising unit rate at substantial discount for advertisements on Gold Page Recruitment of Ming Pao; (2) that Full Arts had a number of clients for placing advertisements on Gold Page Recruitment of Ming Pao when, in fact, those clients were channelled to Full Arts from Ming Pao by NG Ching-yi, which in turn placed such orders on Gold Page Recruitment; and (3) thereby causing Full Arts to make profits through the price difference between the rate charged by Full Arts and the rate paid by Ming Pao to Full Arts. 4. The facts alleged against them by the prosecution were these: In the period covered by the charge, NG Ching-yi was in the employ of Ming Pao Newspaper Limited as an account manager, responsible for advertising. She sold advertising space in the newspaper. LEUNG Wing-yin was her boyfriend who operated Full Arts Advertising and Production Centre. Full Arts is an advertising agency and once was one of Ming Pao's clients. On 15 March 1995 the standard unit rate for placing an advertisement on Ming Pao Gold Page Recruitment was $88 per column centimetre. The rate increased to $100 per column centimetre on 24 February 1996. 5. Account managers, including NG Ching-yi, were given the discretion to offer further discounts of 5 to 10 per cent on top of the normal discount given to clients. On rare occasions they were allowed to grant a flat rate of $23 per column centimetre to recruitment agencies, provided prior approval was first obtained from their supervisors. Only two of Ming Pao's long-standing clients qualified for this rate. 6. On or about 7 June 1995, NG Ching-yi, acting on behalf of Ming Pao signed a 12-months' rate protection contract with Full Arts, which allowed Full Arts to place orders for advertisements on Ming Pao's Gold Page Recruitment page for the year 1 July 1995 to 30 June 1996 at a flat rate of $23 per column centimetre. This contract was granted to Full Arts without prior approval from and without the knowledge of NG Ching-yi's supervisor. 7. During the period 15 July 1995 to 22 May 1996, when certain clients placed orders for advertisements in Ming Pao's Gold Page Recruitment page, NG Ching-yi diverted their orders to Full Arts, who charged them the normal rate. On many occasions she did not inform the clients who placed their orders with Ming Pao that she was doing this. She processed their orders at Ming Pao as if they were orders from Full Arts. 8. NG Ching-yi subsequently informed LEUNG Wing-yin of these arrangements and he issued invoices to those clients demanding payment. By doing this, NG Ching-yi allowed Full Arts to make an overall secret profit of about $268,046, that being the price difference between the rate charged by Full Arts and the rate paid to Ming Pao by Full Arts during the period charged. 9. Mr Andrew Raffell appears for both appellants in this appeal. He was not their counsel at trial. He has raised the following grounds of appeal:
10. The first ground was abandoned as it was clarified that the ICAC interviews of the appellants had not been placed in evidence before the magistrate. For some reason, transcripts of the interviews had been handed to the court clerk on the first day of trial. During the course of trial, the prosecutor made it clear he was not adducing them in evidence. Regrettably, he or those instructing him, did not then retrieve them from the court clerk. As a result, they inadvertently found their way on to the appeal bundle. This is regrettable, as sorting this matter out put everybody to a great deal of trouble and caused a four-months' adjournment of the hearing of this appeal. This is not worked to the appellants' disadvantage as they had been granted bail pending appeal before the appeal hearing began. 11. For reasons that will become obvious, it is only necessary for me to deal with Mr Raffell's 3rd, 4th, 5th, 6th and 7th grounds of appeal. 12. As to the law applicable in this appeal, it should be remembered that there is no crime of fraud. Aldridge and Perry on Fraud, 2nd edition, begin as follows:
13. But there is an old common law offence of conspiracy to defraud, and it is expressly preserved by Section 159E(2) of the Crimes Ordinance. 14. There are two variants of the offence. The first and the one relevant in this case, is defined in Scott v Metropolitan Police Commissioner [1995] Appeal Cases 819 where Viscount Dilhorne said:
15. The first thing to note is the peculiar nature of the offence. Acts which are not indictable, if done by individuals, may become indictable as conspiracies to defraud if agreed to be done by two or more persons. 16. Secondly, in this variant of the offence, an intent to deceive is not an ingredient of the offence. And there need not be an intent to cause economic or financial loss to the proposed victim or victims, it suffices if there is a dishonest agreement to expose the proposed victim to some form of economic risk or disadvantage to which he would not otherwise be exposed. 17. Thirdly, there must always be an agreement between two or more people. The word "conspire" comes from the Latin "conspire", which means to breathe together, and you cannot breathe together without putting your heads together. The criminality in the offence lies in what the conspirators agree to do. But it need not be an agreement that would necessarily involve the commission of a substantive offence if carried out, for which see Scott v Metropolitan Police Commissioner and Cook, [1986], A.C. 909. H.L. 18. If A and B agree dishonestly to deprive C of something to which C is, or might be entitled, then the moment the agreement is made, the crime is complete. It does not need to be carried out. The conspiratorial agreement is not a contract, and it is not legally binding because it is unlawful but like any agreement, it has three stages: firstly, making or formation; secondly, performance or implementation; and thirdly, discharge or termination. 19. To be guilty of conspiracy to defraud, the conspirators must be dishonest in the sense defined in Ghosh, [1982] 75 Cr.App.R 154, and they must intend to defraud the proposed victim, in this case in the sense already explained. 20. As can be seen, the question: what is and what is not a conspiracy to defraud? is difficult to answer. And it is important when looking at any set of facts which are said to evidence a conspiracy to defraud, to remember a vital but often overlooked principle of our criminal law, which is that everything not prohibited is permitted. Under our law no act can be regarded as unlawful merely because it is undesirable or immoral. To be unlawful, it must be forbidden by some definite law. See Clarence [1888] 22 QB 23 at 40. 21. The principle and the difficulty in drawing the dividing line is well illustrated in Chief Metropolitan Magistrate, Ex-parte Government of the Republic of Singapore sub-nominated Tarling (No. 1) v Government of the Republic of Singapore, [1980] 70 Cr.App.R 77, which arose from the take-over of the Haw Par Group by the Slater Walker Group. The case involved a complicated scheme whereby shares purchased in two Hong Kong companies were made available for purchase by certain Slater Walker executives, including Tarling, at cost. Because the share price of the Hong Kong companies increased greatly in value as a result of the activities of the Haw Par companies, which were then controlled by Slater Walter, those executives - as the scheme intended - made large profits. Amongst the charges brought against Tarling, were conspiracies to defraud to be tried in Singapore. The question was whether his committal for extradition for trial in Singapore was lawful under the Fugitive Offenders Act (1967). The Metropolitan Magistrate thought the evidence sufficient to warrant his committal. The Divisional Court thought otherwise. In the House of Lords, by a majority, Lords Wilberforce, Salmon and Keith agreed with the Divisional Court. Lord Salmon said that although the evidence established. "... discreditable conduct and breaches of trust ...", it fell far short of theft and fraud. Lord Wilberforce said, at page 111:
22. As Tarling shows, the facts of cases reported to the police or the ICAC often fall into the ill-defined border area between socially dubious and criminal conduct. And as Bridge LJ said in Charles [1976] 1 All ER 659 at page 666, a cheque card case, both the investigating agency and the court:
23. If that were otherwise, as Lord Simon said in Withers [1975] A.C. 842 H.L., at page 87, the concept would enjoy the Criminal Court to:
24. This is a sound principle of law and an important safeguard of liberty and it is one which must always be borne in mind when considering an allegation that a certain set of facts amount to a conspiracy to defraud. A crime where the offence lies in the agreement and not the act, and where what one plans and does alone may not be an offence, but only becomes an offence because two or more plan it. 25. I turn now to the evidence given at trial. 26. As to the third ground of appeal: KAM Woon-ting, the first prosecution witness, the Manager of the newspaper division of Ming Pao and the senior manager over NG Ching-yi, gave evidence of meetings he had with her. He could not remember the dates of those meetings. He could not remember whether there had been two or three meetings. However, he said that at one of them he told her that he thought her conduct serious and that she should resign. He said that she looked nervous during this interview (See transcript page 37). No explanation was given as to how this nervousness manifested itself. He also said that she "basically said nothing." (See transcript page 38 line R). 27. TAM Yue-kin, the second prosecution witness, who was the sales director of Ming Pao, and the immediate supervisor of NG Ching-yi was present when KAM Woon-ting, whom he referred as a "GM named Cliff," interviewed her on one occasion. He 'felt' that she was unhappy at the interview, again, no explanation was given as to how this manifested itself. And he 'felt' that she knew that there was something wrong about the contract (See transcript page 82, lines B to H and 83, line K). 28. No contemporaneous note was made of any of these meetings, and no written record of them was made until the two witnesses made their statements to the ICAC several months later. 29. The interview, at which both KAM and TAM were present, was referred to as "damming" evidence against NG Ching-yi by the prosecutor in his closing address (See transcript page 276, lines K to Q). He said in express terms that her silence at this meeting was evidence of guilt (See transcript page 276 lines K to Q). 30. The magistrate made no specific reference to this evidence in her reasons for verdict, but she specifically said that she found all prosecution witnesses "truthful, honest and reliable" (See her Reasons for Verdict at page 292 line J). There is a danger here that she has considered KAM and TAM'S evidence of their conversation with NG Ching-yi as amounting to evidence of her guilt. She made no ruling that NG Ching-yi's silence cannot be evidence against her. It is trite law that a suspect's silence, when accused by a person in authority, cannot be evidence of their guilt. Neither did she rule that KAM and TAM'S opinion evidence as to NG Ching-yi's nervousness and unhappiness is also inadmissible as evidence of her guilt. 31. The magistrate also failed to consider that the fact that NG Ching-yi cried and said that she was trying to help her boyfriend, is not a direct admission of dishonesty and participation in a conspiracy to defraud. Neither is it, in the context of the situation, described by KAM AND TAM evidence from which an inference can be drawn that she was admitting those matters. 32. At its highest the evidence is ambiguous. The crying indicates no more than that NG Ching-yi was upset. And why should she not be? She had been accused of having committed a serious breach of work rules. The phrase, "I was trying to help my boyfriend", far from being an admission, might simply be an explanation. As Mr Raffell said, what enables businesses to run successfully is the fact that what is advantageous to one party to a contract is also advantageous to the other. 33. Evidence was also given of a lunchtime meeting in February 1996 between NG Ching-yi and Lina CHONG Lai-na, the third prosecution witness, another Ming Pao account manager and a colleague of NG Ching-yi, who was then acting on behalf Ming Pao as their agent or intermediary. Lina CHONG said that at the meeting NG Ching-yi was "crying desperately" (See transcript 135, line L) and admitted giving a very low rate to an advertising agency (See transcript page 135 lines D to B), and that she had done this to be "helpful" to her boyfriend (Again see transcript 135, line H). 34. This evidence which the prosecutor described as "the most damming evidence" against NG Ching-yi in his closing address (See transcript page 276, G and 277 BC) was probably inadmissible. According to Deokinanan [1969] 1 A.C. 20 P.C., a person in authority is defined at page 33 as "... anyone who has authority or control over the person or over the proceedings or prosecution against him." Lina CHONG probably comes within that definition. According to her evidence she reported the matter to TAM Yue-kin, and she took it upon herself to ask him not to do anything about NG Ching-yi. She volunteered to intercede and did so. She asked NG Ching-yi whether she had given a low rate to a company, and why had she done so? She told NG Ching-yi not to do it again (See transcript of evidence page 135 lines A to J). It is clear that Lena CHONG was acting as someone other than a work colleague of equal status with NG Ching-yi, and was acting with the authority of her and NG Ching-yi's immediate superior. It is also clear that NG Ching-yi knew that she had the authority to act as such. 35. In view of that, the magistrate should have ruled on the admissibility of the alleged oral admissions to Lina CHONG, because such admissions made to a person in authority have to be made voluntarily in order to be admissable. The Privy Council's decision in Thongjai [1997] HKCLR 678, clears up any doubt over the need for a court to be satisfied of the voluntary nature of challenged oral admissions. 36. Indeed, and for a similar reason, the evidence of the interview Kam Woon-ting and TAM Yue-kin had with NG Ching-yi may have been inadmissible. NG Ching-yi was not on equal terms with them. They were both her superiors and therefore persons in authority over her. KAM Woon-ting put pressure on her by telling her that her conduct was serious and that she should resign (See transcript page 37, lines J to R). 37. As to the fourth and fifth grounds of appeal, which I take together: I said earlier that for there to be a conspiracy to defraud between NG Ching-yi and LEUNG Wing-yin as alleged, both of them must have the relevant intent and knowledge to form a fraudulent agreement with each other. 38. The written contract signed by NG Ching-yi and LEUNG Wing-yin is, of course, evidence of an agreement. But on the face of it, it is an agreement between Ming Pao, for whom NG Ching-yi was the authorised agent, and LEUNG Wing-yin. It is not on the face of it, evidence of an agreement amounting to a criminal conspiracy between them, though it appears that the magistrate treated the contract as sufficient evidence of that. 39. The magistrate also found that the following was evidence against LEUNG Wing-yin and his part in the alleged conspiracy. 40. Firstly, a conversation between a client and he, where it appears he told the client that everything should be done through NG Ching-yi (Reasons for verdict page 293, line C to D). I, like Mr Raffell, have not been find this piece of evidence. However, it is hard to see how an ordinary business conversation can be evidence and knowledge on his part. All it can be is evidence that NG Ching-yi was the contact person at Ming Pao. That would be so irrespective of whether this was a legitimate or illegitimate arrangement and whether LEUNG Wing-yin had the necessary knowledge. 41. Secondly, that he was "experienced in the advertising field" (See Reasons for Verdict page 293, line B). This finding appears to be based on the fact that he was an existing client of Ming Pao's. It is not clear from this what the extent of his experience in the advertising field was, nor does it show that he had any experience or knowledge of the newspaper side of advertising, which is the important point. 42. Thirdly, that he was making very substantial profits (See Reasons for Verdict page 293, lines F to G). So do all successful business. High profits on a particular deal are not evidence of an agreement to defraud. It is not clear what the magistrate is driving at here. If she means excessively high profits on these particular deals, then there was no evidence that that was the case, as there was no evidence before her of the financial state of LEUNG Wing-yin's business. The figure of $268,046 which the prosecution alleged to be his gain from the conspiracy, is the difference between the rate charged to its clients by Full Arts and the rate paid to Ming Pao by Full Arts during the period covered by the charge. 43. Fourthly, that "there was no suggestion that he got such favourable rates from anybody else" (See Reasons for Verdict page 293, line H), and that "he had not got them from Ming Pao before" (See Reasons for Verdict 293, line H again). 44. As to the first finding, there was no evidence of this. 45. As for the second that may be so. However, it is clear from the evidence of KAM Woon-ting and TAM Yue-kin that Ming Pao's rates for advertising space were very flexible. And that the figures of $88 and $100 per column per centimetre which the prosecution so strongly relied on were not the actual rates charged, but no more than the base figures from which Ming Pao's charges for advertising space were calculated. It is also clear from the evidence that discounts and discounts upon discounts calculated from those figures were routinely given by the account managers without reference to any supervisor. 46. In cross-examination KAM Woon-ting said that the normal discount was between 15 to 20 per cent, but direct clients and advertising agencies got a discount of 50 per cent, and that all discounts were further discounted by multiple-insertion offers, such as two "Buy One Get One Free." (See Transcript page 44). He also agreed that in the period from June 1995 to May 1996, at least 23 personnel agencies, and not just two as originally alleged by the prosecution, enjoyed a flat rate of $23 per centimetre (See transcript page 55, lines D to N). 47. TAM Yue-kin in examination-in-chief said that the normal discount was 15 to 20 per cent (See transcript page 67, line T). That there was an early submission of material discount of 10 per cent (See transcript page 69, lines J to K). And that, "No one pays the full rate." (See transcript page 70, lines E to G." In cross-examination - in a series of questions and answers, at pages 102 to 103 of the transcript - he conceded that the normal discount of 15 to 20 per cent was further discounted by 10 to 15 per cent for early submission of material, and that advertising agencies enjoyed a yet further discount on the discounted figures of 5 to 10 per cent. He agreed that all these discounts were cumulative and applied before a customer enjoyed deals such as "Buy One Get One Free" or "Buy One Get Two Free." 48. Later - still in cross-examination, (Transcript pages 106-113) - he was shown a series of work cards of Lina CHONG which showed that she had given very substantial discounts from the base figures to a variety of customers. He conceded that in none of these instances had he given her permission to do this, and that she had not asked for it. 49. All of this shows that the cumulative effect of all discounts routinely given to all advertisers was that a rate of $23 per column centimetre was far from exceptional. And leads to the view that it was the fact that the rate in the agreement was expressed directly as $23 per column centimetre and not dolled up in advertising speak sales terms such as, "Early Bird Discount" or "Buy One Get One Free" which alarmed KAM Woon-ting and TAM Yue-kin, rather than the rate itself. 50. Fifthly, "that he was unable to give one of his clients such favourable rates when the client went back to him afterwards" (Reasons for Verdict page 293, line I). This is irrelevant. What happened at a latter stage cannot be evidence of what LEUNG Wing-yin knew at an earlier stage. 51. Sixthly, "that he knew he was getting clients from Ming Pao through NG Ching-yi" (Reasons for Verdict page 293, line J). This is as consistent with a legitimate relationship as an illegitimate one, it cannot be evidence of guilt. There is nothing wrong in an employee of a newspaper passing clients on to an agency who can enhance the quality of their advertisements by improving their artwork. Such a reference does not necessarily imply guilty knowledge of LEUNG Wing-yin's part. 52. I am of the view that none of these matters, either by themselves or together, are either direct evidence or circumstantial evidence from which LEUNG Wing-yin's knowledge could properly have been inferred. 53. As to the sixth ground of appeal: there was positive evidence that suggested the appellants were honest. Mr Graham Harris, counsel for the appellants at trial, drew the magistrate's attention to it in his closing address, when he commented that the open way in which all was done must cast doubt upon the dishonesty of the appellants (Transcript page 280, lines G to H). As Mr Raffell submitted, transparency is the antithesis of dishonesty, and the appellants were transparent in all that they did. No one at the Ming Pao was deceived, lied to or misled in any way. Nothing about the deal or the relationship between the appellants was concealed. None of the clients failed to receive what they considered to be value for money, and no client complained at any stage. 54. The magistrate appears to have accepted that everything was done openly, particularly by NG Ching-yi (See Reasons for Verdict page 291, lines O to P). But she thought that this could not help them for two reasons: firstly, the existence of the contract could not be kept a secret because Ming Pao's accounting department would need to know the rate to charge Full Arts. And secondly: that although the accounts office personnel thought that the rate was "a bit low," they did not take much notice of it and little thought was given to the charge-out rate (See Reasons for Verdict page 291, lines R to T). 55. As to the first reason: if the contract had to be disclosed to the accounts department in Ming Pao, which is the department responsible for checking invoices and other financial matters, it begs the question: would NG Ching-yi enter into a dishonest contract knowing that it must be disclosed to her employer's financial controllers? As to the second reason, the fact that the accounts staff thought that there was nothing wrong with the amounts on the invoices cannot be used against the appellants. Rather, this evidence should have helped them because it casts doubt on the allegations made by the Ming Pao witnesses, that the contract and its terms were wholly irregular. 56. In addition, the following evidence should have led the magistrate to doubt the dishonesty of the appellants. The contract was discovered by Lina CHONG and reported to TAM Yue-kin in February 1996 (See transcript at page 73, lines G to I and P to T). But, TAM Yue-kin did not ask to look at it and, in fact, did not see it until May 1996 (See transcript page 67, line L). It was not until May that NG Ching-yi was asked to resign; she was not dismissed by Ming Pao (See transcript page 37, lines H to I). No report was made to the ICAC until August 1996 (See transcript at page 39, line S). If, according to the standards of ordinary reasonable people, the appellant's behaviour was dishonest, the actions and response of KAM Woon-ting, TAM Yue-kin and Lina CHONG, who are presumably ordinary and reasonable people, are extraordinary. It is reasonable to assume that if anyone of them, and particularly the line managers, KAM and TAM, thought that NG Ching-yi had behaved in a way which was criminally dishonest, they would have immediately reported the matter to the police or the ICAC or recommended a crime report to their superiors. They did none of these things. The matter was only reported to the ICAC in August 1996 because Full Arts had failed to pay the alleged discrepancies to Ming Pao (See transcript page 39 line S to page 40, line B). 57. The magistrate said that Ming Pao regarded the situation with "seriousness" (See her Reasons for Verdict page 292, lines H to I). Dishonesty on the part of an employee would normally justify summary dismissal, but Ming Pao's management did not ask NG Ching-yi to resign until three months after the date of their initial discovery, which indicates that they did not regard her behaviour as dishonest in the criminal sense. 58. As Mr Raffell said, it may be that the contract entered by the appellants justified NG Ching-yi being disciplined or dismissed by Ming Pao. Her employers may have been unhappy with her behaviour. She may have breached their rules - although here I comment that no copy of any rules or guidelines setting out how she was supposed to work was ever adduced in evidence - but that does not necessarily make her, or LEUNG Wing-yin, dishonest on either of the Ghosh tests. 59. As to ground seven: I believe that in this case the prosecution did what Bridge LJ in Charles said they should not do. They saw NG Ching-yi and LEUNG Wing-yin's actions as suspicious and undesirable. They assumed, without analysing the evidence and considering any explanations NG Ching-yi and LENG Wing-yin may have given to the ICAC, that what they did amounted to a conspiracy to defraud. Regrettably, the magistrate appears to have fallen into the same error. 60. For the reasons I have given, I am of the opinion that NG Ching-yi and LEUNG Wing-yin's convictions are both unsafe and unsatisfactory. Their appeals are allowed. Their convictions are quashed and their sentences are set aside.
Representation: Mr Andrew Raffell (Wat & Co) for both Appellants Mr Francis LO, SADPP, for HKSAR |