HKSAR v. Tam Tung Kee and Others

CACC000550/1999

CACC 550/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 550 OF 1999

(ON APPEAL FROM DCCC NOS. 395 & 396 OF 1999)

Coram: Hon Leong CJ/HC, Stuart-Moore VP and Wong JA in Court

Dates of Hearing: 26 July, 2000 and 15 March, 2001

Date of Handing Down Judgment: 2 April, 2001

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J U D G M E N T

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Wong JA: (giving the judgment of the court)

Introduction

1. All three applicants stood trial together in the District Court before Her Honour Judge Poon and were on 16 October 1999 convicted after a trial of conspiracy to defraud, contrary to Common Law. The judge sentenced D1 to imprisonment for 3 years and 8 months; D2 to imprisonment for 2 years and D3 to imprisonment for 20 months. All of them filed notices for leave to appeal against their convictions. D1 and D3 also filed notices for leave to appeal against their sentences. At the outset of the hearing before us, D3 abandoned his application for leave to appeal against his sentence and it was accordingly dismissed. Subsequent to the adjournment which we granted to D1, D1 filed a notice abandoning his application for leave to appeal against sentence.

2. D2 and D3 were represented by Counsel before us but D1 was not legally represented. D1 applied for an adjournment so as to enable him to have his case argued by a specific Senior Counsel from whom he had already obtained a written opinion but he was not available at present. We reluctantly acceded to his request and adjourned his case for argument to a date to be fixed. In the meantime we decided to hear arguments from Counsel for D2 and D3 and did so without objection from both Counsel or from D1.

The Charge against D1

3. The 1st Applicant, TAM Tung-kee (D1 at trial) faced one charge of conspiracy to defraud (Charge 1). These are the particulars of offence :

"TAM Tung-kee, between the 1st day of May 1997 and the 30th day of November 1997, in Hong Kong, conspired with HUI Wai-chung, SHEK Kwok-wing, WONG Ka-wing, CHENG Siu-ming, NG Chun-hing, KWOK Chi-hung, LEUNG Yee-tai, SO Bor-shun, NG Chak-fung and other persons unknown to defraud the developer and contractors of the Hong Kong Station Development Northern Site, namely, Central Waterfront Property Development Limited, Aoki Corporation and Bachy Soletanche Group Limited by dishonestly :-

(i) not constructing the bored piles for the foundation works of the Hong Kong Station Development Northern Site project (the project) in accordance with the approved site plan under Buildings Department reference no. 3-7173-93;

(ii) falsely representing that the bored piles were constructed in accordance with the said approved site plan under Buildings Department reference no. 3-7173-93;

(iii) not disclosing and concealing that the bored piles were not constructed in accordance with the said approved site plan under Buildings Department reference no. 3-7173-93; and

(iv) causing the said Central Waterfront Property Development Limited, the said Aoki Corporation and the said Bachy Soletanche Group Limited to pay for work that had not been done or done in accordance with the said approved site plan under Buildings Department reference no. 3-7173-93 in relation to the project."

The Charge against D2 and D3

4. The 2nd Applicant, THO Ah Sa (D2) and the 3rd Applicant, KWONG Kwong-wah (D3) were jointly charged also with conspiracy to defraud (Charge 2) with the following particulars of offence :

"THO Ah Sa and KWONG Kwong-wah, between the 1st day of August 1997 and the 30th day of November 1997, in Hong Kong, conspired with WONG Ka-wing, KWOK Chi-hung, HUI Wai-chung and other persons unknown to defraud the developer and contractors of the Hong Kong Station Development Northern Site, namely, Central Waterfront Property Development Limited, Aoki Corporation and Bachy Soletanche Group Limited by dishonestly :-

(i) creating false sonic logging test reports in relation to certain bored piles for the foundation works of the Hong Kong Station Development Northern Site project (the project);

(ii) falsely representing that the said false sonic logging test reports were true and correct;

(iii) using or submitting the said false sonic logging test reports to falsely represent that the bored piles had been constructed to the depth as specified in the said report; and

(iv) causing the said Central Waterfront Property Development Limited, the said Aoki Corporation and the said Bachy Soletanche Group Limited to pay for work that had not been done or done to the specification as represented. "

The development of the Hong Kong Station Development Northern Site

5. The two charges arose out of the development and building in 1997 by Central Waterfront Property Development Limited of a commercial complex called the Hong Kong Station Development Northern Site "Northern Site". Central Waterfront Property Development Limited appointed AOKI Corporation as the main contractor. AOKI subcontracted the foundation works of the site to Bachy Soletanche Group Limited and the latter subcontracted the bored pile works to B+B Construction Company Limited. B+B further subcontracted the labour and supervision for the bored pile works to Pak Kee Transportation Company Limited which in turn subcontracted the same work to On Foundation Engineering Company. The sonic logging tests for the bored pile works were subcontracted by B+B to Kwong's Testing Company. Ove Arup & Partners were consultant engineers responsible for the design and supervision of the project at the Northern Site whose duties included verifying the length of the bored piles and that they were properly constructed.

Bored piling

6. The foundation works for the Northern Site involved the construction of 107 bored piles. Bored piling is a recognised foundation system that is designed and constructed to be in direct contact with, and safely transmitting loads from the superstructure to the ground. The bored piles at the Northern Site had been designed to bear on the rock stratum and to be embedded into the rock stratum to provide resistance to the downward and uplifting forces respectively. In order to construct a bored pile, a bored hole will be excavated to the prescribed length in accordance with the approved site plan. Steel reinforcement will then be lowered into the excavated hole and the hole will be filled with concrete. According to the core drilling tests, 83 out of 87 bored piles constructed at the Northern Site were shorter than the prescribed length. A concreting process needed to be done after the bored piles were constructed. Normally concreting should start from the founding level to the cut off level of the bored piles and the concrete to be used could be calculated in advance. As the constructed piles penetrated into shorter than prescribed lengths, the quantity of concrete needed would be less than estimated. Each loading of concrete into the piles would produce a corresponding docket and when there was a surplus of concrete delivered but not loaded into the piles, there would not be sufficient dockets to cover the whole delivery. The insufficient dockets would expose the fact that the piles were constructed shorter than designed. In order to avoid suspicion from Ove Arup, Hui Wai-chung, Kwok Chi-hung and Wong Ka-wing (PW1), three of the co-conspirators named in Charge 1 made photocopies of the original dockets, cut and then pasted them to make false delivery dockets to show that all concrete ordered from Redland were loaded into the respective piles. Two foremen from On Foundation were instructed to cut short the measuring tapes which were to be used by engineers from Ove Arup should they come to the site and carry out measurements of the bored piles. Ove Arup, the consultant engineers, also required sonic logging tests to be conducted on 30 per cent of the bored piles.

Prosecution Case

7. It was the prosecution case that D1, who was the project manager of B+B, participated in the conspiracy to build bored piles shorter than the prescribed length to defraud the developer and contractors that the bored piles were constructed in accordance with the specifications. D1 not only knew, approved and directed what was going on but actually played an active role to cover the matter up as far as possible from Ove Arup, the consultant engineers.

8. D2 and D3 were not involved in the main conspiracy in Charge 1. They were involved in the conspiracy in Charge 2 to cover up the main conspiracy. They agreed to carry out the sonic logging tests to show that the bored piles tested were in accordance with the specifications. They were fully aware that the results of the tests were false. D3 conducted two out of three tests and the third test was not carried out because by then the offence had come to light.

Evaluation and analysis of evidence

9. None of the applicants gave or called evidence. Therefore the judge had only the prosecution evidence to consider. She believed the evidence of all prosecution witnesses including PW1 and found them to be honest and reliable after a careful evaluation and analysis of the evidence. At the end she found the charges proved against each and every applicant beyond reasonable doubt.

The case of D2 in the appeal

10. D2 was represented before us by Mr. Duncan Percy and we will deal with his case first. The perfected grounds of appeal contained three grounds but the real issue in this appeal, as it was in the trial, as Mr. Percy rightly submitted was whether there was sufficient evidence to establish that D2 was a party to a conspiracy with PWl, D3 and others to create false sonic test reports, which he knew full well did not represent the true length of the short piles, and that the false reports were intended to deceive others.

Grounds 1 and 3

11. It would be more convenient to deal with these two grounds together. The first ground is :

"The learned trial Judge was wrong to have drawn an adverse inference that D2 had joined in the same conspiracy with D3 and others, when on the available evidence there was no evidence from the principal prosecution witness PW1 Wong Ka-wing, that when speaking with D2 he had on any occasion informed D2 that the bored piles were shorter than they should be and that any report to be prepared concerning these tests should falsely represent that the bored piles were the correct lengths. Nor was there any evidence that D2 had verbally agreed to provide such false reports. D2 was not directly involved in the preparation of any of the reports, but admits checking and signing one report "as a favour" for an engineer Graham Bennett of G.E.S. as if it was routine procedure. "

And the third ground :

"The learned trial Judge failed to give sufficient or any consideration to the issue of dishonesty and D2's state of mind at the time he signed a false sonic logging test report, before drawing an adverse inference of guilt from the circumstantial evidence. "

Findings of the judge

12. The evidence against D2 was summarized by the judge in her Reasons for Verdict from p.15 to p.18. She identified the evidence in the following way :

(1) The two records of interview in which D2 admitted to have signed on behalf of Mr. Graham Benette, PW3 on at least one occasion in the sonic testing reports. This was denied by PW3 whose correct surname was Bennett and not Benette.

(2) PW1 contacted a person who claimed to be Michael Tho over the phone. During this conversation, method of carrying out the tests and price were discussed.

(3) Soon after the telephone conversation, a quotation dated 19 August 1997 from Kwong's Testing Company was faxed to PW1 quoting the price of the sonic tests.

(4) Following this, the first test was carried out and $14,400 was paid by PW1 to D3. After the second test, D3 told PW1 that the fees asked by Tho were too high and he cut the price.

(5) Two reports dated 8 September 1997 and 7 October 1997 compiled by GES Services Limited were submitted by D3 to PW1. These reports were said to have been checked and signed by Mr Graham Bennett who had denied signing them and in fact Mr. Bennett worked for GES from August 1996 and left in June 1997. D2 admitted in his records of interview that he signed the first report on behalf of Mr. Bennett.

(6) The meeting of D2, D3, Michael Chan, Poon and PWl.

(7) PW2's meeting with Michael Tho and Gary Kwong on 29 November 1997. PW2 was Mr. Peter Sunderland, the contract manager for the Northern Site in 1997. He said in his evidence that the possibility of short piling was first brought to his attention around 6 November 1997. He ordered core drilling tests to be conducted and of the 87 bored piles only 4 were to the specified length, all the others were short piles. He contacted GES, the company which carried out the sonic logging tests. Two persons came to see him on 29 November 1997. The one who claimed himself to be Michael Tho did most of the talking and explained that they might have been taken to do the test on the wrong piles. Mr. Sunderland found the explanation unsatisfactory.

13. It is true that neither PW1 nor PW2 had identified D2 as the person by the name of Michael Tho. D2 admitted in his video interview that he was asked by Tomie de Sousa to attend the meeting with PW2 and he did attend.

14. Having made these findings, the judge concluded at p.17Q to p.18H. She said :

"From the above evidence against D2, an inference could be drawn that it was D2 who attended the meeting with Michael Chan. The evidence of PW3 showed that D2 was never a staff of GES. In fact, D2 admitted in P39 that he was not a staff of GES but a senior engineer of Stanger Asia instead. If such is the case, why did D2 in a GES report, and in particular, against a wrongly spelt surname of Benette? And why did D2, according to the evidence of PW2, purport to be a marketing staff of GES and attend the meeting on 29 November 1997 to offer an explanation? I find that all these evidence cries for an explanation.

A court faced with evidence from the prosecution which is unanswered by the testimony from the defendant is entitled to more readily draw an inference adverse to the defendant from the circumstantial evidence. From these subsequent acts of D2, I have no doubt in coming to the conclusion that D2 had reached an agreement with others to do an unlawful act as specified in the particulars of the 2nd charge, and that the agreement was a dishonest one."

15. In our view, the inferences drawn by the judge are legitimate and proper inferences which the judge was entitled to draw and they are fully supported by the evidence. There is no substance to grounds one and three.

Ground 2

16. We come now to the second ground. This reads :-

"At pages 6-7 of the Learned Judge's Reasons for Verdict, line R-T, she correctly sets out the rule of evidence particularly associated with charges of conspiracy but failed to specify how the rule related to the evidence in the case and in particular how, if at all, it affected the case against D2. "

17. This ground was taken from a passage of the Reasons for Verdict at p.6R to p.7B where the judge said :-

"I have also reminded myself that once there is independent evidence which links an accused to the conspiracy charge, the evidence of words or acts of the accused's co-conspirators done in furtherance of the conspiracy, is admissible against the maker of such acts and declarations as well as the other members of the conspiracy."

18. Both Mr. Percy and Mr. Zervos for the Respondent accepted that this was undoubtedly a correct statement of law. Mr. Percy, however, criticized the judge for only paying lip service without genuine concern for the application of the statement of law which she correctly stated. It was submitted that any evidence or conversation about D2 in his absence without evidence of his identity was hearsay and inadmissible. He complained in particular of the telephone conversation between PW1 and a man claimed to be Michael Tho. Objection was taken at the trial by Mr. Ma who appeared for D2 in the court below. This part of the proceedings and the judge's ruling appeared at p.160 and p.161 of the Appeal Bundle. The judge admitted the conversation to the extent that it took place but not as to the truth of its contents.

19. In our view, the evidence is clearly admissible. Firstly, it amounted to reasonable evidence or a prima facie case of D2's involvement in the conspiracy and the role he played. Secondly, the evidence of the conversations was admissible since the conversations were contemporary evidence of the progress of the offence charged. Thirdly, the evidence of the conversations became compelling evidence of D2's participation in the conspiracy only when considered alongside the other circumstantial evidence, see R v Jones & Others [1997] 2 Cr.App.R.119. Mr. Zervos submitted and we agreed that all the evidence must be looked at in the round and not in splendid isolation. When we approach the evidence as a whole and in its proper context, the evidence against D2 was so overwhelming that the inescapable inference the judge could draw must be one of guilt.

20. There is no merit in this ground and it fails.

D3: the findings of the judge

21. We turn to the case of D3. The judge dealt with the evidence against him from p.18H to p.24E of her Reasons for Verdict. She made a total of eight findings of fact in the following order.

(1) The telephone conversation between PW1 and D3.

(2) Pursuant to the conversation, PW1 received some printouts after the first sonic test was carried out. Later on, D3 personally delivered the formal report to PW1 at the site. D3 also received $14,400 from PW1.

(3) Conversation between PW1 and D3 after delivery of the first report to the effect that D3 was asked not to place the schedule compiled by PW1 in the report any more to avoid suspicion.

(4) When arrangement was made to carry out the second test, D3 said to PW1 that the fees charged by Michael Tho was too high, and in the end D3 only took $2,000 from PW1.

(5) Although D3 did not conduct the second test personally, he delivered the subsequent report to PW1 at the site.

(6) PW1 asked D3 to carry out a third sonic test. PW1 told D3 on phone to stop when the matter came to light.

(7) The fact that D3 was present at the meeting in the B+B Kowloon Tong office with D2, Michael Chan, Poon and PW1 was not challenged in cross-examination.

(8) D3 and D2 went to see Mr. Peter Sunderland, PW2 to explain why the sonic tests results were different from the core drilling tests. Both represented to be staff of GES.

Ground 1

22. Mr. Dunn who appeared for D3 before us put forward six grounds of appeal. The sixth and the last one was a general ground that the conviction was in all the circumstances unsafe and unsatisfactory. The first ground being

"The Learned Judge was wrong in law to admit into evidence the identification of the Appellant's voice by the First Prosecution Witness (WONG Ka-wing) without first warning herself of the dangers of such an identification and the possibility that the First Prosecution Witness had made an honest mistake (p.18/19);

(The Appellant will rely on R v Hersey (1998 CLR 281) and R v E.J. Smith (1984 1 NSWL-R 426) "

23. The judge dealt with the voice identification of D3 by PW1 at p.18I to p.20B of her Reasons for Verdict. She ruled the voice identification admissible and rejected submission from defence counsel that the judge should warn herself in terms of the guidelines in R v Turnbull (1976) 63 Cr.App.R 132 holding that it was only in "fleeting hearing" voice identification that such a warning was necessary. The judge clearly had Turnbull in mind and she was also fully aware that there were no distinctive features of D3's voice and the last time PW1 had spoken to or seen D3 was some eight months ago. However, she relied on subsequent events as supporting evidence of the voice identification. On previous occasions, D3 had submitted the two reports to PW1 and had collected the required fees from the latter. There was the evidence of PW4, a technician in Stanger Asia and a colleague of D3 who asked PW4 to conduct two sonic logging tests in the Northern Site. He said that he went with Gary Kwong to the site on two occasions.

24. In our view, the judge was right to admit the voice identification of D3 and she rightly rejected the submission that it was necessary for the judge to warn herself in terms of Turnbull. There was an abundance of circumstantial evidence to conclusively prove that D3 was the person who spoke to PW1 on the phone just before the first test was carried out. We have considered the decisions referred to us by Mr. Dunn in R v Hersey [1998] CLR 281 and R v E.J. Smith [1984] 1 NSWLR 426 and do not find them to be of any real assistance to D3. It was held in both cases that evidence of voice identification is admissible. In the present case, the evidence is such that even without the voice identification, there was ample evidence to support the finding of guilt of D3. The evidence of voice identification is nothing more than a red-herring. This ground fails.

Grounds 2 to 5

25. These 5 grounds all relate to attacks on the judge for drawing adverse inferences against D3. They can be considered together and disposed of quickly. The grounds speak for themselves.

(2) Learned Judge was wrong to draw an inference adverse to the Appellant from the fact that the First Prosecution Witness asked the Appellant not to include the schedule prepared by him in the next report, (p.20F) since there was no evidence that the reason why this was undesirable was ever made known to the Appellant (p.175 A-D);

(3) The Learned Judge was wrong to draw an inference adverse to the Appellant from the fact that the Appellant delivered the report relating to the second sonic test to the First Prosecution Witness. This was part of his normal duties as an employee and was not evidence that he was a party to the Conspiracy. (p.20J-K);

(4) The Learned Judge was wrong to draw an inference adverse to the Appellant from the fact that he was present at a meeting at which the matter of the shortened piles was discussed. (p.20N-0) The Appellant's mere presence at the meeting and his contribution to the discussion are not matters from which an adverse inference could safely be drawn. (p.182E-T, p.183P-T);

(5) The Learned Judge was wrong to assume that one of the persons who met with the Second Prosecution Witness to discuss the matter of the sonic tests was the Appellant, and to draw an adverse inference from this fact (p.20Q). The Appellant was not identified as one of the persons present on that occasion (p.390).

26. We have no hesitation to reject these grounds out of hand. The judge was presented with a very strong and formidable case against D3. He conducted two sonic tests with full knowledge that the results of the tests were not the depth of what he found but the correct depths of what the bored piles should have been as contained in exhibit P25. There was also evidence from PW1 at p.378 of the transcript. The following questions and answers emerged during the cross-examination of PW1 by Mr. Wan who appeared for D3 at the trial.

Q. All right. Now, according to your evidence so far, this Michael Chan, this Mr. Poon, you yourself, Gary and, according to you, this Michael Tho who were present at the meeting, they were all involved in this conspiracy - that is, they all knew what went on?

A. Gary and Michael Tho only knew about the matter in relation to sonic tests.

Q. And the short piles because they were there to cover up the short piles, accordingly to you?

A. I told Michael Tho that the piles were shortened.

Q. And the rest, they all knew what went on, correct?

A. I mentioned it to Mr. Poon, but, before the matter was discovered, I did not talk with Michael Chan on this.

Q. And the reason, I suggest to you, was because Gary did not know anything about the short piles. He was only there to do the testing. That's why you cannot tell, say it openly, to lead them to say what they - what was not true.

A. Disagree.

27. When all the evidence was considered cumulatively and not in isolation as Mr. Dunn had suggested, there is no doubt at all that a most powerful case was established against D3.

The Case of D1 in the appeal

28. We finally come to the case of D1. We do this last because of the adjournment which we had granted to D1 to brief a Senior Counsel of his own choice. We have now heard arguments from Mr. Wong S.C. on his behalf.

The judge's findings

29. D1 faced the first charge. We had set out the particulars at the outset and will not repeat them. The findings of the judge against him were to be found at p.10H to p.12D. This is what the judge had to say. She started with the sub-heading of "Evidence against D1" and continued :

"(1) PW1 said that when they were surplusage of the concrete delivered but not enough dockets, PW1 told D1 when D1 went to his office but D1 said that they should not have mentioned it to him.

(2) In July 1997, PW1 tried to resign but was assured by D1 that construction of bored piles shorter in length than those prescribed by Ove should not be a problem so far as they were constructed to 30 to 40 per cent of the socket length. D1 also asked PW1 to report to him the pile length before proceeding with concreting.

(3) When the Senior Engineer, Adrio Bachetta, from Ove asked D1 to accompany him to go to Redland to check the records relating to concrete delivery in respect of bored pile 7, D1 asked PW1 how this matter could be dealt with. As a result, PW1 phoned up HUI and HUI went to see D1 and Bachetta in D1's office.

(4) Before PW1 went to Japan on holiday in early November he asked D1 for permission to accept some money offered by HUI. He said that by that time he was not aware of the amount. D1 told him that everyone knew about the shortening of the bored piles and so there would be no special meaning for HUI to give him the extra money. D1 also remarked that no matter whether he took the money or not he would continue to participate in the shortening of bored pile matters.

30. Against these findings, Mr. Wong has drafted and developed arguments on a number of grounds of appeal. These are as follows :-

31. The conviction is unsafe or unsatisfactory in that :

1. The learned District judge erred in holding that the Applicant's knowledge together with his acquiescence was sufficient basis upon which to find that he was a co-conspirator in the conspiracy alleged in that :

(a) to sustain the charge, there must be a finding that the Applicant had, at the time of agreeing to become a conspirator, held the requisite mens rea; that is, the intention :

(i) personally participate in the perpetration of the contemplated offence;

(ii) by dishonestly doing or omitting to do at least one of the 4 items as stated in the Particulars; and

(iii) thereby to cause the loss or the risk of such loss;

(b) 'knowledge and acquiescence' is not 'agreeing to personally participate in the perpetration of the contemplated offence' nor the 'requisite mens rea'; and

(c) there was no evidence that the Applicant had at any time agreed to so personally participate.

2. In respect of 'dishonesty' which was an essential element of the charge, the learned District Judge erred :

(a) in failing to make any findings in respect thereof,

(b) further or in the alternative, in failing to apply the GHOSH test to determine whether or not the Applicant had been dishonest, as alleged;

(c) further or in the further alternative, there was no direct evidence, nor primary evidence wherefrom to draw the irresistible inference, that the Applicant had been dishonest.

3. In finding that the Applicant was a party to the conspiracy to defraud, the learned District Judge erred :

(a) in relying upon "a safe inference" and/or "a reasonable inference" drawn instead of 'the only reasonable inference' (the irresistible inference); and

(b) the inference drawn and relied upon to convict was not the only reasonable inference capable of being drawn from the evidence.

4. In all the circumstances, there were material irregularities and a lurking doubt.

32. These grounds and the arguments advanced in support can be disposed of very quickly and briefly.

Ground 1

33. It was conceded that there was evidence to prove the existence of the conspiracy alleged but the issue was whether D1 joined the conspiracy and had the requisite intention at the time when he joined that conspiracy. Mr. Wong submitted that it was in this area that the judge fell into error. We are unable to agree. The findings made by the judge at p.10H to p.12D clearly provide an abundance of evidence to prove that D1 joined the conspiracy and did so with the necessary mens rea. In R v Anderson [1986] AC 27 at p.39E, Lord Bridge had this to say :

"the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice, nothing more is required."

Lord Griffiths made the same point in Yip Chin-keung v R [1995] 99 Cr. App. R at p.410 :-

"The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence."

34. We are satisfied that there was ample evidence for the judge to draw the inferences that she did and in our view her findings were fully borne out by the evidence and cannot be faulted. This ground therefore fails.

Ground 2

35. Although the judge did not make any specific reference to the test of dishonesty laid down in R v Ghosh [1982] 2 All ER 689, it is perfectly plain that the judge had all the ingredients of the offence of conspiracy to defraud in her mind when she considered the case against each individual defendant. For instance, she particularly referred to the decision of the House of Lords in Scott v Metropolitan Police Commissioner [1975] AC 819 in which Viscount Dilhorne gave what has been regarded as the classic definition of the offence of conspiracy to defraud.

36. This is a case where out of 87 bored piles constructed, 83 of them were found to be short. It must be obvious that anyone who participated in the scheme was dishonest in the extreme according to any test, Ghosh or otherwise.

37. In the course of his argument, Mr. Wong drew our attention to the offence of statutory conspiracy created under s. 159A of the Crimes Ordinance Cap. 200. It is not necessary to consider this because it is not relevant to this appeal. D1 was charged under the common law and his case was proceeded with and considered on this basis.

38. There is no substance in this ground and it fails.

Ground 3

39. In the concluding paragraph against D1 in her Reasons for Verdict, the judge said at p.11S to p.12D :

"With all these evidence before me, and in the absence of any credible explanation from D1, I find that it can be safely inferred that he had joined in an agreement with others to construct shortened bored piles whilst deceiving the contractors and developers by representing that such were constructed in accordance with the approved site plan, and that D1 knew perfectly well that, on the facts known to him, what they had agreed to do was an unlawful act."

40. We are satisfied that the inferences drawn by the judge were proper inferences to be drawn from the facts she had found and there was ample evidence to support her findings.

41. This ground also fails.

Ground 4

42. This ground contains nothing and does not take the case of D1 further than the previous grounds. This ground must fail.

Conclusion

43. We have not been persuaded that the convictions were in any way unsafe or unsatisfactory. The applications are therefore dismissed.

Representation:

Mr. Kevin Zervos, S.A.D.P.P. (on 26.7.2000 and 15.3.2001) and Ms Louisa LAI, S.G.C.(on 26.7.2000), of the Department of Justice, for the Respondent

1st Applicant in person (on 26.7.2000)

Mr. Ching Y. Wong, S.C. and Ms. Barbara Cheng instructed by M/s Bosco Tso & Partners for the 1st Applicant (on 15.3.2001)

Mr. Duncan Percy, instructed by M/s Au-Yeung, Cheng, Ho & Tin, for the 2nd Applicant (on 26.7.2000)

Mr. John Dunn, assigned by the Legal Aid Department, for the 3rd Applicant (on 26.7.2000)