HKSAR v. Lok Wai Keung

CACC000419/2000

CACC 419/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 419 OF 2000

(ON APPEAL FROM DCCC 512 OF 2000)

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Coram: Hon Mayo Acting CJHC, and Stock JA in Court

Date of Hearing: 25 April 2001

Date of Judgment: 25 April 2001

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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 was charged in the District Court with 16 offences. The first twelve were charges that as an agent he used a document in each case with intent to deceive his principal, contrary to section 9(3) of the Prevention of Bribery Ordinance, Cap. 201. He was also charged with conspiracy to falsify an account, contrary to section 159A of the Crimes Ordinance, Cap. 200 and section 19(1)(a) of the Theft Ordinance, Cap. 210. This was charge 13. In addition to this he was charged with three further counts of being an agent and using a document with intent to deceive his principal, contrary to section 9(3). Count 16 was an attempted charge as the applicant's employer by that time suspected his involvement in these offences and forestalled its implementation. After a trial in the District Court before H.H. Judge Day he was acquitted of the first twelve counts and convicted on counts 13 to 16. He was sentenced to 3 years imprisonment on count 13 and 3 months each on counts 14, 15 and 16. The sentence on count 14 was ordered to be served consecutively to the sentence on count 13 and the sentences on counts 15 and 16 were ordered to be served concurrently thus making a total of sentence of 3 years 3 months imprisonment. The applicant seeks leave to appeal against these sentences.

2. Particulars of count 13 are:

"LOK Wai-keung, between the 2nd day of January 1997 and the 18th day of April 1997, in Hong Kong, conspired together with SHAM King-cheung, with a view to gain for themselves or another or with intent to cause loss to another, to dishonestly falsify various records or documents of the Hung Yue Machinery Factory made or required for accounting purposes, namely Invoices, by making or concurring in making therefrom material particulars showing purchase prices of goods sold to Tak Cheong (Yau Kee) Engineering Limited of inflated amount of $202,152.40 Hong Kong currency."

3. Particulars of count 14 are:

"LOK Wai-keung, being an agent, namely an Executive Director of Tak Cheong (Yau Kee) Engineering Limited ('the Company'), on or about the 4th day of July 1997, in Hong Kong, with intent to deceive his principal, used a document, namely a voucher of the Company in respect of which the principal was interested and which contained a statement which was false or erroneous or defective in a material particular, namely goods of the amount $1,000.00 Hong Kong currency had been purportedly bought by the Company and which to his knowledge was intended to mislead the Company."

4. Particulars of counts 15 and 16 are similar save for the dates and amounts involved the fact that count 16 was an attempted offence. The amount involved for count 15 was $7,000 and for count 16 was $3,000.

5. The applicant was an executive director of a large company in the construction business. His duties included buying hardware from suppliers and approving payments for purchases.

6. According to the evidence which was accepted by the Judge on six occasions between January and April 1997 he conspired with Mr Sham King Cheung to inflate the amount of invoices of steel rods which Sham's Company were to supply to one of the applicant's company's customers. Sham's company was paid the inflated amount and Sham passed the excess payments on to the applicant. The payments were made by two instalments. The first was for $163,928 and the second for $38,224.40.

7. In his reasons for sentence at p. 36 of the appeal bundle. The Judge said:

"Charge 13 is serious. Although charged as conspiracy to falsify an account, the facts I have found indicate planned, ongoing corruption. Whilst the total may not be huge, $202,000, it is the result of six involves all inflated over a period of some months. It represents a gross breach of trust by someone who had been promoted to sales manager and director and there is absolutely no sign of remorse from you for what you have done.

The Court of Appeal has repeatedly stressed the seriousness of commercial corruption. For example, in The Attorney General v Leung Kin-wai Application for Review 5 of 1996, the court thought 3 years was the correct starting point for a section 9(1) Prevention of Bribery Ordinance offence in broadly similar sums to this trial. Whilst that case is not meant to be a guideline, it gives an indication if one were needed of the seriousness with which this sort offence is regarded. I accept that you have not been convicted of a section 9 Prevention of Bribery offence, but that is basically what I found the facts to prove and that is the conduct which I shall sentence you for. 3 years, it seems to me, is the correct starting point for this offence."

8. It is this passage which is the subject of the main criticism which Mr Egan for the applicant levels against the sentences which were imposed.

9. Put very simply he contends that the Judge was labouring under a misconception when applying an analogy to section 9 offences. He argued that the offence was in reality a theft from his employer and that consequently the Judge had been in error in sentencing the applicant on the basis that this was planned ongoing corruption. The applicant should only be punished for offences of which he had been convicted. That is quite right. However it is necessary to have regard to the facts of the offence of which he has been convicted.

10. The conspiracy in question did undoubtedly contain an element of corruption on the basis of facts which were found by the Judge. It involved an agreement with Sham to issue inflated invoices and then pass on the proceeds to the applicant who incidentally held a position of trust with his employer.

11. In the circumstances of the case the starting point of 3 years imprisonment was in no way excessive or wrong in principle.

12. So far as the remaining charges were concerned they were section 9 charges although the amounts involved were much smaller. Again the Judge cannot be criticised for the starting point he adopted.

13. There was nothing in the personal circumstances of the applicant to justify any significant reduction in the sentences imposed. The Judge observed that the applicant had shown "absolutely no sign of remorse" for what he had done.

14. In commenting on counts 14, 15 and 16 he said at p. 37 of the appeal bundle:

"These are cynical, well prepared breach of trust offences. If I look at the professional way the fake invoices have been prepared, it shows a man prepared to go to considerable lengths even for small gain. However, the amounts are not large and I regard as appropriate a starting point of 3 months for each of these offences. All the offences are distinct and should merit consecutive sentences."

15. There is no merit in this application and it is dismissed.

Representation:

Mr Kevin P. Zervos, SADPP of the Department of Justice, for the respondent

Mr Kevin B. Egan, instructed by Messrs C.L. Chow & Lam, for the applicant