HKSAR v. Chow Che Wai
Read the full judgment text of CACC 545/2001 on BabelCite. This Court of Appeal judgment was delivered on 21 March 2003.
1 In 1998, the Housing Authority was constructing housing blocks at Tung Chung and awarded a contract for that construction to a company called Cheung Kee Fung Cheung Construction Company Limited (the company). The applicant was engaged by the company as construction manager in charge of the project. He and two others were charged in the District Court with three conspiracies to defraud the Housing Department, which is the executive arm of the Housing Authority. The two other defendants were:
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CACC000545/2001 CACC 545/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 545 OF 2001 (ON APPEAL FROM DCCC 1219 of 2000 AND 248 of 2001) __________________
______________ Coram: Hon Stock JA, Yeung JA and Gall J in Court Date of Hearing: 27-28 February 2003 Date of Judgment: 21 March 2003 ______________ J U D G M E N T ______________ Hon Stock JA (giving the judgment of the Court): Introduction 1In 1998, the Housing Authority was constructing housing blocks at Tung Chung and awarded a contract for that construction to a company called Cheung Kee Fung Cheung Construction Company Limited (the company). The applicant was engaged by the company as construction manager in charge of the project. He and two others were charged in the District Court with three conspiracies to defraud the Housing Department, which is the executive arm of the Housing Authority. The two other defendants were:
2The case has to do with steel bars for reinforcing concrete. The steel bars used for the project were delivered to the site in batches, each with a given number; and the bars were of different sizes, each denoted by their different diameters. So, for example, a 'Y16' model meant that they were high tensile bars with diameters of 16 mm. All steel bars intended for use on the site had, by contract, to be submitted for testing to a company called Castco Testing Centre Limited ("Castco"), who would test the bars for yield stress, mass density, and other features. So, from each batch delivered, the contractor had to submit a sample for testing. If the test failed, then the corresponding model of steel bar within the batch was not to be used in the construction, and had to be returned to the supplier. What happened in this case is that, from time to time, steel bars were encased in the construction without waiting for the samples to be sent for testing, so that when tests proved negative, the failed bars were not removed from the construction, let alone from the site; and false documentation was engineered, and other steps taken, to fool the Housing Department that the bars had been removed from site, and (it followed) had not been used in the construction. This is all common ground, and it follows that these steps constituted a conspiracy to defraud. The issue at trial was whether this applicant and the two other defendants, D1 and D3, were party to that conspiracy. 3There were three charges:
4Each charge alleged that the conspiracy had been carried out with Lee Hing-tong (also called Hope Lee) who was the assistant construction manager; Lo Yue-hang (the site agent); Wong Ying-fat (the assistant foreman); and Ms So Lai-heung (who was an assistant to D3 in the Purchasing Department). It is relevant to note that the applicant was senior to all these men and women (with the exception of Ms Fung, D3), and that he was the construction manager in charge of this particular site. 5Others whose names feature in this appeal are three Housing Department officials: Mr Ling, Mr Ha, and Mr Yeung. To an extent which we shall explain, the evidence of the main prosecution witness against the applicant conflicted with their evidence. 6We pause to say that in a case of this factual complexity in which there are quite a number of different persons whose roles on or off site are relevant, and an analysis of whose evidence is said to be necessary, and in cases where dates at which key events (in this case meetings, deliveries and tests results, the dates of site directions, and of key letters) are said to be relevant, the court would be much assisted by a dramatis personae, and by a chronology of suggested material events. The Reasons for Verdict in this case are very detailed indeed; as is the 'skeleton' argument presented on the applicants behalf, each running to well over 100 paragraphs. We have had to read them in full, more that once, a time consuming exercise to enable us to sift the wheat from the chaff. 7The result of the case was as follows:
8That is how we come to be left with the applicant. He now seeks leave to appeal against the convictions on charges 1 and 2, and also against the sentences imposed. The Evidence 9This was a forty-six day trial. D1's evidence for the prosecution lasted no less than eleven days, eight of which were taken by cross-examination. He was the second last witness. 10The applicant did not give evidence in his own defence, nor call witnesses on his own behalf. It was accepted that the applicant was a person of previous good character. His case, as put to D1 in cross-examination, was that he, the applicant, had nothing whatsoever to do with the conspiracy; that he attended no meetings in which there was discussion about what to do with failed bars; and that in so far as D1 sought to implicate the applicant, D1 was lying in order to attract a discount in sentence, by shifting the weight of culpability from himself, and by the very act of giving evidence for the prosecution at the applicant's trial. 11It was undisputed in relation to the batches to which each charge related that false documents were sent to the Housing Department, stating that all the rods or bars in the batches which had failed the tests had been returned. The truth in each case was that some had been returned (those not yet incorporated into the structure), but that the rest were not. Various devices were employed to back up the fraud; for example, unused rods of the same size already on site, but from another batch, were returned together with such failed bars as had not been used. Photographs were taken of trucks taking loads away; and false weighing dockets purporting to evidence the return of the bars to the suppliers were produced. The suppliers did not complete these false dockets, but rather one or more of the alleged conspirators at the company did so. It was in other words undisputed that there was a conspiracy as alleged. The sole issue in the case of the applicant was whether it was proved that he was party to it. 12The answer to that question at trial depended upon the evidence of D1, and for the purpose of this appeal depends on the judge's treatment of that evidence. 13There is a document called a site direction (Exhibit 86) dated 2 February 1999, written by the Housing Department to the company informing the company that the Housing Department has learnt that bars from batches 24 and 25 were being, or had been, cut prior to submissions of specimens to the laboratory; and directing that the batches were not to be used until the test results. The test result worksheets showing failure of the batches is dated 5 February. Batches 23, 24 and 26 each failed the test, and the information to that effect was passed to the contractor on 5 February 1999. D1's evidence was that Mr Yeung, the Housing Department works supervisor, spoke to him about these results at about that time. D1 knew, however, that the building work had been progressing apace, and he was worried that the bars may have been used. After a check in the storage yards had confirmed his fears, he went to speak to the steel fixers who allegedly became aggressive about his instruction to them to stop using some of the bars which he saw them using. So D1 went to speak to Lo, the site agent; and to Wong, the assistant foreman; and all three then went to speak again to the steel fixers. There, the steel fixers complained that bars were not being delivered to them quickly enough and, according to this testimony, Wong pointed to two bundles, which were already marked by paint as having failed the test, and told the workers that they could use them. D1 was not happy and sought out Lee, and told him that many of the failed bars had been used, but it appeared that Lee already knew that. 14So D1 then reported the matter to the applicant. He told him that the failed steel bars had been used and that there were only a few left; and the evidence is that the applicant said that the unused bars would have to be taken back but that the "difference would have to be made up by new steel bars in order to get the quantity right ... because at that time the Housing Department had to check the quantity." (Tr pp 560-561). This conversation had taken place in the doorway to the site office, in Lee's presence. The applicant added that the steel bars already used in the superstructure could not be taken down. If the bars were taken down, he said, each floor in which the bars had been used would have to be pulled down. The applicant told D1 to call the Purchasing Department to ascertain procedures for the returns, how the relevant documents could be made, and that instructions had to be sought from the purchasing department as to how that should be done. The applicant said he felt uneasy about it and even went so far as to position himself next to some ICAC offices, with a view to making a report, but that in the event he did not do so. 15The next day, about 6 February, he telephoned Ms So, told her what had happened and, according to this evidence, she said that she would have to speak to D3. According to D1, she called him back and said that D3 had directed that the remaining bars had to be returned, and that the difference was to be made from new steel bars which could be transported to the site. She also said that the purchasing department would make up documents for submission to the Housing Department. D1's evidence was that he told the applicant about this conversation with Ms So. As to when this conversation with the applicant took place, he said it was after Chinese New Year (which fell between 16 and 18 February 1999) but was not sure. 16The applicant's next appearance, for present purposes, was in late February or early March when, according to D1, he came to D1's office and handed him a wad of blank delivery receipts, which were from, or as if from, one of the suppliers to whom the goods were to be returned. According to this evidence, the applicant told D1 to have them filled in. He then gave them to his technical assistant, Chan Kwok-tai, to complete. The following day, Lee returned all these documents to him (D1) and they had been completed, purporting to show the return of the steel to the supplier between 12 and 25 February. On the first of those dates, 12 February, a number of Housing Department personnel had been on site, including Mr Ha, and a number of trucks were removing bars from the site, and the applicant told Ha that they were removing failed bars. Photographs were taken of the removal exercise. 17There is another batch of documents with which we are concerned. These are entitled incoming weighing dockets. They are documents which are normally filled in by the supplier. There is a difference between an incoming weighing docket, and an outgoing weighing docket. An incoming weighing docket is only used by a supplier to record supplies coming in from those who supply the supplier. Outgoing weighing dockets, we were told, are used not only to record the weight of goods going out to the contractor but also, as a matter of practice, are used when goods are returned by a contractor - in such circumstances, the docket filled in by the supplier is also an outgoing weighing docket. D1's evidence was that the applicant had directly handed to him a batch of such documents already completed by the Purchasing Department. 18From the quagmire of detail with which we have been swamped, it appears, in relation to the first charge, undisputed, and the judge found, that delivery receipts were created by Chan Kwok-tai at D1's request, and that the incoming weighing dockets were created by Ms So of the Purchasing Department from information provided by D1; and that the photographs were taken at D1's directions, and not on the dates printed on them, purporting to show return of goods which had in fact not been returned at all. 19The applicant's role, according to this evidence, was, therefore, in giving directions in the first instance that the bars were not to be removed, that there would be a false return of bars, and that documents would have to be fabricated to cover up; and that he provided blank documents for this purpose, and also completed documents which he knew had been falsified. 20The evidence in relation to the second charge was less complex. It relates to events in late March 1999. This was batch 37, and it arrived on site on 20 March. The batch failed the tests. It was again discovered by D1 that some of the failed bars had already been used. 21His evidence was that the applicant called a meeting on 25 March, the day after the test result, which was attended by the applicant, D1, Lee and Lo. A report was made about the number of missing bundles of steel bars. D1 suggested that those already inserted in the structure be dismantled, but the applicant disagreed. D1 also suggested that the company could try and show that the failure was by a small margin, with a view to persuading the Housing Department to accept the position without the need to dismantle; but the applicant said that the Housing Department would not accept that. The applicant gave the same instructions as with the first lot, namely, that all the non-used bars would have to be returned, but that those already used would have to be replaced by new bars which would be sent to the supplier, and that weighing documents would be produced. Accordingly, passed steel, that is steel that had passed the tests, was secured, and painted red to pretend that it had failed. Telephone calls were again made to Ms So. D1 spoke to the applicant about his conversations with her. Steel was returned, and documents were falsified and presented. Not all the bars painted red were returned. Some were merely taken off site and returned to the site painted green, the colour which denoted that the steel had passed the tests. It is not known whether either D1 or the applicant knew of this variation, as it has been called, in the scheme; and the appeal has proceeded on the footing that the applicant did not know of it. The false documents were in due course sent to the Housing Department. 22No evidence was given to implicate the applicant in the facts underlying the third charge. Those events related to a delivery of steel in May 1999 and, again, D1 was informed of a failed test of a batch (batch 50). Only part of the failed steel was returned to the supplier, but the documents showed otherwise. The applicant was accordingly acquitted on the third charge. The Reasons for Verdict 23Many pages of the Reasons for Verdict are devoted to a detailed summary of the cross-examination of D1. 24The judge rightly recognized that much turned on the credibility of D1. He gave himself a series of warnings about that evidence: that he testified under immunity; was a self-confessed accomplice; and had a clear incentive to give evidence against the applicant. He noted as well that the applicant was a person of previous good character. In relation to D1's evidence, he noted further a number of aspects that were unsatisfactory. In so far as they are relevant to this appeal, they were:
25There were a number of matters which the witness recalled or purported to recall for the first time in cross-examination. To some of these we shall have to return. The judge said in this regard that D1 did not give the appearance of inventing the recollections, or of discomfort when pressed about them. He did not, the judge concluded, show himself to be a robust character. Taking into account all the weaknesses which were pointed out by the defence team, and which the judge carefully itemised in his Reasons for Verdict, he was nonetheless satisfied beyond reasonable doubt that D1 was a witness of truth. He commented that on several occasions the witness had appeared forgetful and wary of defence questions, but this, the judge felt sure, was symptomatic of an attempt to be careful and wanting to get his full story out. He was left, he said, "with the certain belief that Chan [D1] has testified truthfully on all material matters and that his evidence can be relied upon." The suggestion that D1 had orchestrated the scheme of deception did not find favour with the judge for D1, he said, was an inexperienced quality control engineer "not capable of initiating such a massive cover up even with the assistance of So whom he barely knew." Rather, the judge was satisfied that D1 was uncomfortable about the whole scheme from the outset, and that he continued to be a reluctant, though important participant, until his resignation. "All that stands against [the applicant]", he said, "is D1", but since he believed D1, that sufficed; and he convicted the applicant. Grounds of Appeal 26We have in this appeal been taken through the evidence very thoroughly, and some of the matters urged upon us were such that the appeal at times took on the colour of a retrial. We were frequently asked to take note of lies told by the witness in his evidence and it was impressed upon us time and again how untrustworthy the main prosecution witness was. 27The essence of the complaint was that the judge did not sufficiently appreciate the untrustworthiness of this witness, and did not appreciate the significance of the discrepancies between his evidence and that of others. 28We have examined these complaints carefully. But it must be said that the judge's assessment of the truth of D1's evidence, of his character, his weaknesses, his attitude to the events as they unfolded on site, the spontaneity or otherwise of his recall of events put to him and pressed in cross-examination, the degree to which he stood his ground in the face of prolonged cross-examination, the care which he took in answering questions - all are to be viewed against the fact that the judge had the advantage of hearing his testimony for no fewer than eleven days, an unusually long time for any one witness. 29It is said that the judge has relied on demeanour to come to his conclusions, and that demeanour is often overplayed as a measure of credibility. We do not think that that is a fair assessment of the judge's approach. Demeanour has not here been used as some lip-service formula. The judge has dealt with each issue of disputed fact - and there were many of them indeed which were wringed out before him for his consideration, some important; others peripheral - and in respect of each he has given a reason for accepting the evidence of D1 where he has accepted it. Where he has relied on demeanour, he has done so in an acceptable way by assessing whether, for example, the witness's recall appears to have been spontaneous in response to a trigger of some kind. That was wholly acceptable. The judge had prolonged opportunity of appreciating the nuances, rather than the literal words to which we have so often been taken. We have, of course, not studied the whole of the very extensive transcript, yet such study of it as we have carried out demonstrates how concentration on the flow and context of evidence can bring out a more realistic flavour of that evidence, than concentration on a particular answer or answers. The burden of counsel who seeks, in such circumstances, to say that a judge has erred in his assessment of trustworthiness on the material issues is not an easy one to discharge. Ground 1:Not recalling witnesses 30This ground asserts a material irregularity in the failure of the judge, alternatively of the prosecutor, to recall the witnesses Ha (PW2) and Ling (PW3) once D1 had testified; and the failure by the judge, alternatively the prosecutor, to call Mr Yeung, the Housing Department Works Supervisor, to whom we had made reference, but who was not called at all to give evidence. 31The issue arose in this way. In the course of cross-examination, the applicant said that he had told Mr Ling and Mr Yeung that some of the failed bars had been cut and bent, and may have been used in the superstructure. He and Lee had gone to inform Yeung and did so, but Yeung had said that all steel bars would have to be returned. D1 said that he then telephoned Ling, and told him the same. He did this to see whether they might agree to the use of the failed bars in the superstructure, but Ling said he could not give an immediate answer. D1 said that he did this because he wanted to solve the problem in a lawful way. Ling, however, never responded. This all happened one or two days after his first conversation with the applicant about the failed bars. 32This evidence did not sit well with the evidence of Ling and Ha, or with a statement which Yeung had made to the ICAC. Ling's evidence was that he had no suspicions, that he thought all the steel had been removed, and that he had no suspicions about the bona fide of the documents. However, when asked at the end of his evidence whether, when he saw a direction (Exhibit 86) dated 2 February to the company from the Housing Department saying that batches 24 and 25 had been cut without prior testing, and that they were not to be used, he felt any suspicion, he said that he could not be sure whether he did or not. 33Mr Ha, also of the Housing Department, was also alleged by D1 to know that failed bars may have been used in the structure. According to this evidence, there had been a site meeting in February 1999 attended by D1, the applicant, Ling, Ha and others, and from the conversation which took place, D1 inferred that Yeung had told Ha that steel may have been used in the structure. He said that if so, they had better be taken down. The effect of Ha's evidence was that he signed various documents evidencing removal of the bars, trusting that the removal had taken place. 34In his statement to the ICAC, Yeung had said that he had never received any request from the company to use failed steel bars in the structure. 35D1's suggestion that he had spoken to Ling, and that Ha apparently knew of the use of failed bars, had never been put to either witness. This is not surprising, giving that when Ha and Ling gave evidence, D1 was still holding to his Not Guilty plea. 36The day before closing addresses, the judge, commendably in our view, took it upon himself to inform the parties through his clerk that he intended to secure the attendance at court the following day of Ling and Ha; so that these matters could be put to them. Counsel conferred, and the judge was informed that neither side required the attendance of those two witnesses. Nonetheless, the witnesses, at the judge's invitation, were at court the following day. The prosecution did not recall either, and all defence counsel declined the judge's offer that they be recalled for the purpose of further cross-examination. Yeung was not asked to attend. It is in this regard relevant to note that the judge did not know of Yeung's statement. 37Mr Marash accepts that the decision for a judge whether or not to call a witness himself (or for that matter to have a witness recalled) is one within his discretion. But he argues that the judge in this case erred in the exercise of that discretion. He points to some dicta which suggest that where justice requires a judge to put questions, he has a right and duty to do so. He referred to R v Evans, 29 January 1974, unreported, cited at page 99 of Pattenden "Judicial Discretion and Criminal Litigation" 2nd ed., and Johnson v United States 333 US 46; and he took us also to R v Finta [1994] 1 RCS 701, 856 in which the Canadian Supreme Court approved of a decision of a judge to call witnesses where both parties to an issue refused to do so; and to R v Grant [1958] Crim LR 42. 38Although it is always possible for counsel to find a case, here and there, in which the facts and the course of proceedings are such that the failure of the judge to intervene by himself calling or recalling a witness will be the subject of legitimate criticism, such issues are always case specific and do not derogate from the principle (which, incidentally, we note was emphasized in R v Finta itself (at page 857)), that the discretion should rarely be exercised. The power to call a witness, or to recall a witness, whom neither the defence nor the prosecution wishes to have recalled is one which should be sparingly exercised. See the summary of principles conveniently set out at paragraph D16.8 of Blackstone's Criminal Practice 2003. 39In the circumstances of this case, we fail to see how it can be said that the judge erred in the exercise of his discretion, given what transpired and given the nature of the evidence at issue. In relation to Yeung, the suggestion that the judge should have called him is, with respect, untenable, given that the judge did not know that he had made a statement. In relation to the others, counsel had been specifically asked whether they wished to have the witnesses recalled. On the day on which closing submissions were to be delivered, the witnesses were there, ready to be recalled. The judge then re-opened the offer and told counsel precisely why they may wish the witnesses, especially Ling, to be recalled. That was because a review of the documentary evidence suggested to the judge that Ling knew in early February that the steel had failed its tests, much earlier than he had hinted or suggested in his evidence. The judge told counsel just that, that "it might be suggested by the prosecution that Mr Ling was aware of the failure [of the steel] before he wrote the letter of 8 February and if that is so, that might be relevant to the issue of what [D1] has said about his conversation with Mr Ling"... "It really has to do with the dates of what Mr Ling knew and I guess when he knew it, whether he knew about the failure of batch 24 when he wrote Exhibit 86", the point going not to whether Ling knew the failed bars had been used, but whether he nurtured any suspicions. Mr Adams, then appearing for the prosecution, said that "I'd submit that he must know this"; and the judge then went on: "It may be used by the prosecution to argue that I should prefer the evidence of [D1] on that issue and I simply wish to bring the matter to your attention ... so that you could consider the question of whether or not you wanted to ask any questions of any witness, Mr Ling or others, about that matter." (Tr pp 1031-1032). Counsel then asked for time to consider the question, and were given time; and they both declined the opportunity to put questions. Mr Marash went so far as to say: "I don't see any warrant for any further action." 40How in the circumstances it can conceivably be said that the judge or the prosecutor failed in some duty, or the court in the exercise of a discretion, it is difficult to see. 41Mr Marash, in the course of argument before us, suggested that if the judge indeed hinted at the approach he might take in relation to Ling (it seems to us that he clearly did) he did not do so in relation to Ha. The answer to this is several-fold. First, it would not, as Mr Marash in effect conceded, have made any difference. The defence did not want either witness; and the reasons which moved the judge to suspect that Ling must have had some suspicion that the bars had been used must have applied, factually, to Ha as well. Ha was the clerk of works whose job entailed visits to the site. And the test results which were forwarded had a site chop of the Housing Department stamped and dated 5 February, at a time when it was known that bars had been cut and bent for use. It is also to be recalled that all that D1 is alleged to have said to these men was not that failed bars had in fact been used, but that they may have been. Ling could not, in the event, recall whether he did or did not nurture such a suspicion. There is no suggestion that D1 had ever been asked this question before. It emerged as a question in cross-examination, and the judge specifically remarked that "... Chan [D1] did not give the appearance at least that he was inventing the recollections or that he was made uncomfortable by the questions or indeed by the fact of his late recollection ....". (Tr p 58). 42Of course there was no duty on the prosecutor in the circumstances to recall either witness. The prosecution was faced with the fact that there was something of an apparent conflict and that is a situation with which prosecutors are not infrequently faced; an apparent conflict, with which the defence were quite content to pursue their arguments, as was the prosecutor. 43Mr Marash complains then of a passage in the Reasons for Verdict (page 46) in which the judge, having noted the disparity of emphasis or evidence and having preferred the recollection of the applicant, and having said that neither Ling nor Ha had been recalled, commented that: "What remains ... is the uncontradicted evidence of D1 on the issue and again his evidence about these matters has not been discredited." Yet, argues Mr Marash, the evidence was not uncontradicted. We do not need to analyse exactly what the judge meant. It suffices to say that the point counsel makes might have more strength had the judge not rehearsed very fully the conflict of evidence, and why he preferred one version to the other. 44As was pointed out by the court in the course of the hearing of this appeal, it seems to us that the true ground of complaint is not that the witnesses should have been called despite the attitude of defence counsel, but that the judge erred when he decided to prefer D1's recollection on the matter to that of Ling and Ha. We do not accept that the judge's reasoning for preferring the evidence of D1 on this issue is flawed. We note that D1's evidence was that he had merely intimated that steel bars may have been used, and that the witness himself, Ling, ultimately said that he could not recall if he felt cause for suspicion. The evidence that bars had failed the test reached Ling's office on 5 February, at the same time as he was aware that bars had already been cut to size. Furthermore, the judge noted that Ling ought to have been alerted that something was amiss because there had been the inappropriate use of incoming instead of outgoing weighing dockets, and the judge was not happy about Ling's response to that. The judge has dealt carefully, very carefully, with each and every aspect and disparity of any significance, and we do not see that he can be faulted in this conclusion. 45The first ground fails. Ground 2: The Judge's Treatment of the Evidence 46The essence of this complaint is that the judge failed properly to appreciate the significance of certain issues and evidence, and that he rationalized unsatisfactory aspects of D1's evidence in a manner which was not logical. 47It is said, generally, that the evidence of D1 conflicted with every witness, where there was a witness who gave evidence. That is not quite so. That there was a conspiracy of precisely the nature that D1 described was accepted. That documents were falsified by the Purchasing Department was also accepted. That the steel workers were anxious to proceed with the steel that had been delivered, although failed, is not disputed. The manner in which the events came to D1's attention is not disputed. There was no direct conflict with the applicant as to whether he was or was not a party to the conspiracy, because the applicant did not give testimony. The fact that others must have been involved in the conspiracy was self-evident. It was an elaborate scheme which involved personnel on site, the movement of bars, and the taking of false photographs; it involved personnel at headquarters, where false documents were obtained, and then faked, and from where they were delivered. And there can be no dispute either that the person in charge of this project was this applicant and none other. The matters upon which there was an actual conflict must then be viewed for their true significance in that context; and in context also of the fact that in a trial which took place two and a half years after the events in question, the likelihood of conflict in recollection was high. One has also to recognise the identity of those with whom conflicts emerged: whether they had a motive to be less than frank; whether they were or not believed by the judge in respect of other matters; and what positions they occupied. So for example, some of D1's evidence conflicted with the evidence of Ms So. Yet she was disbelieved, and disbelieved for good reason, on proven lies. It hardly assists the applicant to point to conflicts with her evidence. 48We turn now to the specific instances where the judge's findings are attacked. (1) The March Meeting 49If D1's evidence about the meeting in March 1999 between the applicant and D1, Lee and Lo is not to be believed, or may be untrue, then there is a failure of credibility which marks D1's evidence in a highly significant aspect; for although the applicant did not give evidence, it was the defence case, as put to the witness, that the applicant attended no such meeting. 50It is a material fact that the applicant's attendance at the March meeting was never mentioned by D1 to the ICAC in the first four interviews which they conducted with him. In the fourth interview, he was asked about that meeting, but said that he had no recollection. He said that he needed to recollect the details. The next day, he presented himself at the ICAC offices and, with the aid of a written note, he made a fifth statement to them in which he said that the applicant had attended the meeting and had been party to the second conspiracy. 51The evidence in this regard, to which we are taken, is evidence by D1 that he was told by the ICAC to reveal matters in which he was involved, and the suggestion that was made to us was that he conceded that he was asked to "point the finger" at the manager and the boss, with hints that he might thereby become a prosecution witness. We do not think that the effect of D1's evidence was that he was told to 'point the finger' at the applicant or at anyone else. Rather, the effect of the evidence was that he was asked to say what role people such as the manager and the boss had. He said that he tried to tell the officer during the five interviews "all the matters". It was not his main concern to be a prosecution witness, but rather to tell them "the whole matter". He accepted that when asked about this meeting by the ICAC he did not at first remember it, but that, as a result of some prompts, given by them he then recalled. We see from the transcript of evidence that in an interview the ICAC officer put to this witness a March meeting attended by the applicant, D1, Lee, and Lo at which were discussed the steel bars which had been used. The ICAC asked D1 whether he recalled the meeting and he said, more than once, that he had no recollection of it. Nonetheless, he asked them to "tell me and see", which we take to be a suggestion that if the officer provided further details, his memory might be jogged. He then said in evidence that he had been afraid that he might make mistakes, so he said he would think about it; and the following day, he returned to the ICAC. 52In relation to this issue of fact, the judge has recognized that the evidence of the meeting was:
He says this:
Then he later said:
53In analysing this, as well as other aspects of D1's evidence about which he had not been satisfied, the judge stated that it was shown throughout his evidence that the witness was
54Mr Marash makes the following points, that:
55There can be no question, as we can see from the Reasons for Verdict, but that the judge was aware of the central importance of the evidence about the meeting in March. We do not think that, as Mr Marash has suggested, the judge took the view that it was an issue which went to credit only, rather than to whether the meeting took place at all. When the judge says that "it is a matter which weighs against accepting him as a witness of credit" he means, in context, a witness of credit on this central issue. Where the judge refers to the evidence concerning the witness's state of mind rather than facts in issue, it is perhaps a strange way of putting the matter and might in other circumstances and in a vacuum concern us. It is to be recognised, however, that the evidence was as to why the witness had not mentioned the meeting; what was in his mind. That is why the phrase "state of mind" has crept in, and the judge has not accepted his testimony as to why he did not mention the meeting; the judge has found, in other words, that that was not his state of mind. The reason why something is not mentioned is to be distinguished from evidence directed specifically to an event; whether an event happened or not. That is the distinction the judge is making, adding that the witness was in late 2001, at trial, being asked about his state of mind a long time ago. 56We have some difficultly in understanding the judge's comment that had D1 admitted the commanding role of the applicant at the time of the interviews, it would have been clear evidence of his own guilt; as if this explains in part why D1 did not mention the meeting. We have not seen the interview records, but we understand from counsel that D1 all along was admitting his guilt, even though at trial and before his plea of Guilty, he challenged their admissibility. Nonetheless our puzzlement at this comment does not affect our conclusion in relation to this ground of appeal. It is to be recalled that this failure on D1's part to mention the applicant relates to a single meeting. It is not as if D1 had not mentioned the applicant's complicity as a conspirator. He had, so we are told, but not in relation to the second charge. That meeting was only a matter raised by the ICAC on the fourth interview, and we have seen how it then emerged. In evidence, D1 said that he did not volunteer details at that interview because he was afraid of making an error and wanted to recollect the details, which later he did. There was no suggestion from any witness who was said to be at the meeting, whether it be the applicant or any other person, that that meeting did not take place; and the judge's finding that he did, and that the applicant was there, cannot, in the round, be faulted. (2) An attack by the defence 57The judge makes a rather odd remark at page 69 of the Reasons for Verdict that in relation to the several matters about which he has concern, they "were all matters where [D1] was attempting to protect himself from the defendant's attack." Mr Marash says that the comment is meaningless since all witnesses exposed to untruths are thus exposed when under attack. We will not speculate what the judge meant. We bear the oddity of this remark in mind in deciding, as Mr Marash asks us to decide, whether the conviction is unsafe or unsatisfactory, and in the context of Reasons for Verdict which have recognised all contradictions in the evidence of D1 and which have provided many different reasons for belief and disbelief, as the case may be. (3) Standing Up to Cross-Examination 58The judge commented that
This is criticized. It is said that the witness did not stand up to cross-examination, because that cross-examination exposed a number of lies. The fact that he was exposed to have been less than frank with the ICAC about the March meeting is an example given. Yet we have read the cross-examination about his interviews with the ICAC, about being asked to point fingers at others, matters of that kind, and we can understand what the judge meant by his comment; namely, that the witness stuck to his guns when pressed, that he insisted on explaining himself when he felt that an issue was being interpreted incorrectly; and so on, and we think that the comment of the judge was fair. Where the judge has recognised aspects of the witness's evidence which were shown to have been unreliable but nonetheless says that he withstood painstaking examination, the judge is referring to eight days of cross-examination, and is making a general comment, which does not derogate from his main findings, that on certain aspects of his evidence the witness was shown by cross-examination not to have been telling the truth. There is no inconsistency between the two. The Resignation Motive 59D1's evidence was to the effect that there was an incident in May which triggered his resignation in early June 1999. This related to the subject matter of the third charge, batch 50. He said that he resigned because his conscience had been pricked when, in May, a Mr Fok, a storekeeper, had shown him a document which he, Fok, had recognized as false in relation to batch 50. 60It was contended at trial that this evidence, this motive for resigning, was false. The true reason it was said, was because there had been a major blunder by D1 well after the submission of false documentation in relation to batch 50. The suggestion was that he alone had allowed concrete of too high a standard to be installed above the 20th floor of the buildings, and had caused sixty four pre-cast façades to be made with too low a quality, so that they had to be discarded. All this cost the company a great deal. It was put that he, D1, had written a letter to Mr Ha to disguise the reason for the discarding of the pre-cast façade. This letter was dated 7 July, one day before D1 actually left the company's employment. The point of all this was to suggest that D1 had lied about the true reason for his resignation and, further, that the true reason had no connection with anything to which the applicant was a party, and therefore revealed misconduct by D1 with no encouragement from anyone else, let alone the applicant. D1 had submitted, it is said, false documentation to cover up these later errors, which were not the subject of any charge before the court. 61The judge said this about that aspect of the case:
62Mr Marash says that the judge erred in concluding that D1 had not attempted to mislead the court; and that the judge has failed to recognise the significance of the fact that he created false documentation in relation to the concrete issue, without any prompting by the applicant. 63We have examined the suggestion that the witness falsified documents to cover up the concrete and pre-cast façade errors. But there is no evidence that Mr Marash has been able to produce to show such falsification. The judge, it is true, did not say that the witness had not been entirely frank with the court about the reason for his resignation. That may be because the judge was satisfied that by late May, when Fok produced the false dockets to the witness, the witness knew that the 'game was up', and that that was indeed a major reason for his resignation. The judge's reasoning, which is full enough by any possible standard, has been subjected to microscopic examination, and one cannot possibly expect the judge to delve into each and every issue which might possibly impact, however obliquely, on the assessment of credibility. Not mentioning the applicant to Ms So 64Ms So (PW18) of the Purchasing Department, who had given evidence implicating D3, was a witness whose credibility stood low with the judge. The judge found that she had lied on a number of matters, and that significant inconsistencies in her evidence were revealed. He found much of her evidence incredible and "in the circumstances ... no weight can properly attach to anything she has said." (page 67). Mr Marash points to her evidence that in her conversations with D1 about the missing bars, or the used bars, D1 never mentioned any conversation which he had had with the applicant. Had the applicant been involved, says Mr Marash, it would have been extraordinary for the applicant, who was senior to D1, to have left D1 to deal with the Purchasing Department and the creation of false documents, without saying who it was who told him to do what he was doing. He complains also that when the judge says (page 61) that it is improbable that she had no contact with the applicant in connection with the matter, especially since he spent much of his time at the company's head office, there was no evidence of any contact between them. 65All of this becomes difficult for Mr Marash to maintain given that the judge held - and his finding in this particular regard is not challenged - that he could not believe anything that Ms So told him. The judge explained that he was not surprised that D1 did not (if he did not) mention the applicant to Ms So, noting that the witness was a weak character, and the judge did not in the circumstances find anything inherently unreliable about the suggestion. Furthermore, says Mr Marash, the finding that D1 was a weak character sits ill with his conduct in relation to the concrete/façade issue and the witness's creation of false documents in that regard. This is like many of the points Mr Marash makes arguable as a forensic point, but it must be recalled that by May or June 1999 D1 had already been engaged actively for some months in deceit; must have perceived himself to be in hot water; and his conduct in May and June was not necessarily inconsistent with the picture which the judge had obtained, of a weak character. The judge had seen and heard the evidence of this witness for eleven days; far from a fleeting impression. Charge 3: D1 on his own 66Towards the end of the Reasons for Verdict, the judge commented upon D1's inexperience as a quality control manager, a factor
The complaint here is that this ignores the fact that the applicant was on any view not connected with the events underlying the third charge; and the further fact, to which we have recently alluded, that D1 was involved in creating false documentation to hide his error in relation to the 20th floor concrete and the pre-cast façade errors without the involvement of the applicant. As to this latter allegation, we have already addressed the unsupported contention that false documentation was created. 67In the judge's remarks, the judge expressly refers to the initiation of a massive cover up. The events of May and June were not part of any initiation. The system of deception was by then already well under way; and one might remark that were it D1's intent to deflect attention away from himself and on to the applicant regardless of the truth, whenever primary blame could otherwise attach to D1, he would have contrived to do so in relation to the events which were the subject of charge 3 as well. We are satisfied that this ground is not made out. Two Missing Bundles 68This issue was relevant most directly to charge 3. It related to the fact that two bundles of 'failed' steel were missing, and that D1 had been told, he said, that the steel had already been used in the structure; so he contacted Ms So, and obtained false weighing dockets for the two bundles. Yet shortly after the suggestion was made that the bundles had been used, they were found and this was brought to his attention. But the effect of the evidence was that the false dockets were nonetheless created. Mr Marash says that this is incredible evidence, the import or significance of which falsity was not recognised by the judge. Mr Marash also points to the fact that in a statement to the ICAC which the applicant made in September 1991, he failed to tell them that the bundles had in fact been found. 69This again is an exercise in the minutiae of a case. The witness's evidence was that he told the ICAC of the main matters. Whether he told Ms So that the bundles had been found and, if not, why not, we do not know. We do not think the point makes any difference, either on its own or as part of some cumulative picture. Yeung/Ling/Ha: the failure to mention their knowledge to the ICAC 70We have earlier recounted the details of the evidence of D1 that he had told Ling and Yeung that some failed bars may have been used; and also that Ha appeared to know that as well. Mr Marash draws to our attention not only the fact that this evidence contradicted that of Ha and Ling, but also that it was not a matter mentioned by Chan in his interviews with the ICAC. 71We do not know, nor have we been shown, what questions D1 was asked by the ICAC. It is evident from the judge's remarks that the question of the knowledge of these men emerged quite naturally for the first time in cross-examination. The prosecutor had evidently not asked the witness about this; and the judge emphasized the natural way in which the evidence emerged, with no sign of recent invention. 72Further, the judge was well aware that the suggestion had never been made to the ICAC. He commented (page 64) on the fact that these matters were not mentioned in his ICAC statement and acknowledges that it is a factor to be weighed:
73Mr Marash suggests, further, that in any event D1's evidence was incredible; not only because he did not mention the matter to the ICAC, but also because he is alleged to have revealed to the Housing Department officials the possibility that failed steel had been used after the applicant had given him instructions to hide the fact. The answer to this is that D1 said that nonetheless he hoped they could be allowed to proceed because the failure was marginal, and because he felt uncomfortable about it all. The Completed Weighing Dockets 74We have earlier referred to this evidence. D1's evidence that the applicant handed to him completed incoming weighing dockets, already completed by the Purchasing Department, conflicts with the evidence of Ms So that she placed them in an envelope, telephoned D1 and told him to send someone to collect them, which he then did. The judge said (paragraph 61) that this was "one of the central allegations against D2". And he said that he would then come in due course to this issue. Mr Marash complains that the judge never returned as promised to this issue. Strictly speaking, that is so. The judge did not again mention this very issue of fact. But what he did do was to say that he did not accept, and could not rely upon, any evidence tendered by Ms So, and that in relation to essential issues in the case against the applicant, he believed D1's evidence. That in our view is the answer, and a satisfactory one, to this particular complaint. Delivery Receipts, and Chan Kwok Tai 75We have referred above to D1's evidence that he handed blank delivery receipts to Chan Kwok-tai, his technical assistant, to complete; that D1 took them away, and that the completed documents were returned the following day by Lee. Chan Kwok-tai's evidence was that he filled them out in D1's office and gave them back directly to D1. The judge noted this discrepancy, such as it was (page 36), and said (page 62) that it was unexplained. This is said to be an inadequate resolution of the issue. One has to say that the evidence related to one incident which took place amongst a host of others more than two and a half years prior to the trial, and that it is therefore hardly surprising to find disparities of this kind. It was one of which the judge was, in any event, aware. By saying that the inconsistency was unexplained, the judge was saying that he could not resolve it, and that it was not necessary to do so. We do not see that he can be faulted for that conclusion. Variation of the Plan 76There is another point which it is said the judge should have resolved but did not, or that he failed to appreciate its significance. The original idea, the original instruction, from the applicant to D1, according to D1's evidence, was that the used steel would have to be replaced by new steel, and that the new steel would be returned in place of the failed and used steel. There was evidence however that some failed Y20 bars which had not been used were not in fact returned to the supplier, but were instead sprayed green to signify that they had passed. Counsel for the applicant says that there was no evidence that the applicant had ever been informed of this development, which was a breach of instructions supposedly given by him. He says that it defies belief that such a departure would have taken place without the witness telling the applicant; and the fact that there is no evidence that he was told suggested that he was not the author of the original instructions or plan. The judge has not addressed this. 77This is not quite so. The judge was well aware of the variation, and refers to it expressly in his reasons (page 41). There is nothing at all extraordinary in the fact, if it was a fact, that one bundle in the context of one charge, was treated differently without the applicant's knowledge. Indeed it is not suggested that D1 himself knew that that had transpired. This was a matter of detail in the execution of the plan. It was an ongoing scheme, which lasted for weeks. That some bars may have been dealt with in a particular way without the applicant's knowledge is not a matter for surprise, let alone astonishment. When D1 first alerted Ms So 78D1's evidence was that he first spoke to Ms So about the failed bars before Chinese New Year in 1999. Her evidence was that it was after Chinese New Year. Chinese New Year fell between 16 to 18 February. Photographs showed bars being removed on 11 February. Mr Marash argues that this shows that D1 was involved in the removal of bars before Ms So was notified of the failure of batches 23, 24 and 26. D1's evidence was that, having spoken to Ms So, he informed the applicant about the plan to falsify documents. This could not be so, so the argument runs, if the Purchasing Department did not even know of the failures until after the bars had been moved. 79Given the judge's dim of the reliability of Ms So's evidence, we are surprised that the point is taken. Ms Shum 80Ms Shum was a clerk in the Purchasing Department, and the effect of D1's evidence was that even though she herself may not have made out the false documentation, she knew that false weighing documents were to be made out. Yet Ms Shum had given evidence in which she said that Ms So had asked her to obtain blank weighing dockets from one of the suppliers, but that she had not filled them in, and that she did not know that they were to be used for fraudulent purposes. Mr Marash complains that the judge did not resolve this disparity of evidence. 81The evidence of Ms Shum was actually that she did not know for what purpose the documents were to be used. That said, we note that she gave evidence that she obtained blank weighing dockets which did not emanate from her own company, and which, we know, were not supposed to issue from her company. It suffices to say that the very act of securing blank documents in such circumstances must have given rise to some suspicion. In the circumstances, we think little of the point. Conclusion 82We are invited to the evidence as a whole, and to say that the conviction was in view of all the matters raised, unsafe and unsatisfactory. 83We do not see a basis for saying so. This was a long trial indeed. The fact of a conspiracy by a number of persons in relation to these steel bars was not disputed. The applicant was in charge of the project. It is not in the least surprising that D1 might have gone to him to tell him what was happening, and for advice or instructions. That witness gave testimony for eleven days, and the flaws in his testimony, such as they were, were recognised by the judge, who nonetheless believed him. The applicant provided no evidence, on the central issue of his participation, to contradict that witness. We can see no valid basis for interfering with the conviction. 84Accordingly, the application for leave to appeal against conviction is dismissed. Sentence 85The applicant was sentenced to a term of two and a half years' imprisonment on each charge, but one year on the second was ordered to run consecutively to the first, the rest concurrently; a total of three and a half years. 86In sentencing the applicant, the judge said that the conspiracies were complex and involved the forgery of a significant number of documents; that the defendants each brought in more junior staff in the planning and execution of the conspiracy; that the conspiracies extended over a seven or eight week period in early 1999; and he remarked on the effect which such conduct has on the public perception of corruption in the building industry. He noted that whilst there was in fact no danger to safety (for the apartments were completed with the failed bars remaining), and that the applicant believed the failure to be marginal, the applicant and D1 had extended no favours to the reputation of Housing Authority built apartments. 87He said that he took into account in the defendants' favour their personal circumstances, and that they were each without previous convictions. He noted that they did not gain financially over and above remaining in employment. 88He took two and a half years starting point for each charge, in the case of each defendant. 89It is said that the judge failed to give a discount for the applicant's good character. However it is obvious to us that that has been built into the starting point which the judge has adopted, for he expressly mentions the good character of the applicant as a matter which he takes into account in reaching the starting point. 90Mr Marash emphasizes the fact that the buildings were not at risk. He takes us to cases of short-piling frauds, which involved risk of collapse of buildings. He says that the judge was wrong, to impose a deterrent sentence; that he was wrong to view the frauds as running over a seven or eight week period, when in fact there were two separate frauds of under four weeks, and five days, respectively; that the judge was wrong, given the fact that the buildings were not altered in any way, to say that the effect of such conduct was to undermine public confidence in Housing Authority apartments; and that the judge took too high a starting point, and gave no discount from that starting point for good character. He emphasizes as well the point that the applicant was not party to the installation of the failed bars; in other words, that the applicant was presented with a fait accompli, extrication from which must have presented him with a real difficulty. If the matter were reported to the Housing Department, they would inevitably require demolition or dismantling of some extensive kind to take place. That would hardly please his bosses, whose readiness to go along with the scheme of deception by falsifying documents is evidence of that fact. In any event, the fault initially lay not with the applicant but with D1 who was on site and whose job it was to see that nothing amiss occurred. 91We recognise that the applicant did not engineer the original situation with which he and D1 were confronted, in the sense that they did not direct failed bars to be used in the construction. We recognise too that the failure of the bars was marginal, and that the safety of the buildings was not affected. But this is why the starting point for each conspiracy was two and a half years, rather than significantly higher. There are, against the matters which have been advanced, good reasons for the imposition of a significant term of imprisonment. The integrity of the building industry in Hong Kong is truly important, and the treatment of the regulations and specifications with disregard and to the extent of engaging in fraudulent cover up calls for deterrence. The fact of the matter is that this applicant was in charge of this site and that it was to him that D1 turned for a decision. The resulting conspiracy involved the extensive falsification of documents to be presented to the Housing Department. It was a conspiracy which went on for weeks. The applicant not only gave the instructions to carry out the deception, but he also gave D1 blank documents to be falsely completed and, in addition, handed him completed false documents. Then he repeated the instructions anew in March 1999. 92All this said, we have come to the conclusion that some slight reduction in sentence in the case of the applicant is justified. The judge said that he did not distinguish between the criminality of these defendants. In view of the factors to which we have referred in the preceding paragraph, that may have been a view slightly generous to this applicant, but the judge had the flavour of the case. Despite that view, the applicant now faces a term of imprisonment which is twice the length of that imposed on D1. We recognize the fact that D1 pleaded guilty, albeit after 16 days of trial, and we recognize his significant contribution to the prosecution case against the applicant: so we do not criticize the judge for the discount he afforded D1. Yet the totality and the resulting differences between overall sentences nonetheless leaves us with some unease. We have no quarrel with the starting points of 30 months, but we think on the whole that the totality of three years and six months' imprisonment for the two offences and given also the sentence imposed on D1, is too high and merits some reduction. In our judgment, a total of three years' imprisonment is appropriate. 93Accordingly, we grant the applicant leave to appeal against sentence; treat the hearing of the application as the appeal; leave undisturbed the sentences on the individual charges, but we allow the appeal to the extent only of ordering that six months of the sentence imposed on charge 2 shall run consecutively to the sentence imposed on charge 1, the rest to run concurrently, making a total of three years' imprisonment.
Representation: Mr Daniel Marash, SC leading Ms Maggie Wong instructed by Messrs Fairbairn Catley Low & Kong for the Applicant Mr K P Zervos, SADPP and Mr Gary Lam, SGC of the Department of Justice for the Respondent |
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