HKSAR v. Sin Chi Kong

CACC000560/2002

CACC 560/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 560 OF 2002

(ON APPEAL FROM DCCC 418 of 2002)

_____________

_____________

Coram: Hon Stuart-Moore Ag CJHC, Stock JA and Jackson J in Court

Date of Hearing: 5 December 2003

Date of Judgment: 5 December 2003

______________

J U D G M E N T

______________

Hon Stock JA (giving the judgment of the Court):

The charge

1.The applicant was convicted on 21 October 2002 by HH Judge Whaley in the District Court of one offence of conspiracy to defraud and was sentenced to a term of two and a half years' imprisonment. He now seeks leave to appeal against conviction. The charge ran as follows:

SIN Chi-kong, between the 1st day of January 1997 and the 31st day of December 1997, in Hong Kong, conspired with LAW Kui-cheung and POON Lai-kit and with other persons unknown, to defraud the Hong Kong Civil Engineering Department and its officers and agents by dishonestly:

(a)	falsely representing that the work relating to the upgrading of and improvement to two existing slopes known as Reinforced Embankment Number 1 and Reinforced Embankment Number 2 at the site of Formation of Po Lam Road Platform used fill material in accordance with specifications;
(b)	substituting the fill material samples taken from the designated locations at the site of the said Formation of Po Lam Road Platform with other samples;
(c)	falsely representing that the said other samples were the samples taken from the designated locations at the site of the said Formation of Po Lam Road Platform;
(d)	submitting or causing to be submitted the said other samples for testing; and
(e)	causing the said Hong Kong Civil Engineering Department to pay for work that was not done or not done properly.

The facts

2.The facts are not overly complex. The applicant was the site agent for a construction company called Zen Pacific Civil Contractors Ltd. ('Zen Pacific'). That company had been awarded a contract in 1995 by the Hong Kong Government through its Civil Engineering Department which required, amongst other works, the upgrading and improving of two slopes at the Po Lam Road platform in Sau Mau Ping.

3.Not surprisingly, there was a requirement that the soil used in the work adhere to a standard set by specifications in order to ensure stability and safety of the slopes. Zen Pacific were required to submit samples of soil to a laboratory, Soil and Materials Engineering Co. Ltd. ("SMEC"), for testing before the soil was applied on site. The Civil Engineering Department had engaged a company called Greg Wong & Associates ('Greg Wong') as the consultant engineer and it was that company's job to supervise the works. Soil samples for testing were meant to be taken first to the offices of Greg Wong whence they were delivered to the laboratory. The purpose of the laboratory tests was to examine certain qualities of the soil, namely, plasticity index, liquid limits, friction, and particle distribution. The works were carried out between January and December 1997 and were completed in March 1998. But on 27 April 1998 a portion of one of the two slopes collapsed, and this led to an expert investigation which showed that the slope was defective. One of the defects was that the fill materials were substandard.

The allegations

4.The essence of the case against the applicant was that he had instructed two subordinates, one named Poon, who was an apprentice, and the other a person called Law, an assistant engineer, to tamper with fill materials in order to cover the fact that inadequate fill was used on site. It was the testimony of the witness Poon which formed the main evidence against the accused. He testified under an immunity, and spoke of two distinct occasions: the first, which in a statement to the ICAC he said was in about May 1997, was when the applicant in the presence of Poon and Law felt some samples which had been collected and delivered to the Greg Wong storeroom and said that the soil was too sticky, and he instructed the subordinates to add some sandy soil to the samples which were destined for testing. This they did, collecting a bag of sandy soil and adding the contents to the three bags in the storeroom. There the applicant squeezed the bags again, and said that the result was more or less right.

5.The second incident, he said, was in about September or October. The applicant, Poon, and Law were together on site when the applicant said that certain soil had been found that was good soil, which was to be placed in three bags and taken to the offices of Zen Pacific; and that was done. A week or so later, there was a collection of soil from specified locations in accordance with set procedures, and those soil samples were taken back to the offices of Greg Wong in the company of Greg Wong supervisors, this being part of the procedure intended to ensure that there was no tampering with samples destined for the laboratory. At the storeroom, the applicant squeezed the bags of the sample soil and said that they were not good enough and, according to Poon's evidence, the applicant instructed Law to swap them. Acting on those instructions, Poon and Law went to the offices of Zen Pacific. There they took the three bags of supposedly good soil, which a week before they had deposited there on the applicant's say-so; took the good soil to the offices of Greg Wong and there substituted the good soil for the soil which had been taken as samples for laboratory testing; and threw those samples down a slope. In this way, the three bags of good soil, rather than those intended by the proper procedures, would be sent to the laboratory for testing. It was also his evidence that access to the offices of Greg Wong was easy; they were not locked and that no key was needed to gain access.

6.The applicant was arrested in April 1999 and interviewed by the officers of the ICAC. The content of those interviews were before the trial judge.

7.The applicant did not give evidence at his trial nor did he call any evidence on his own behalf.

The judge's approach

8.The trial judge dealt in some detail with the status of Poon as a witness and the benefits which he stood to gain from giving evidence, as well as with the history of his interviews with the ICAC, including denials he had made of any complicity in soil tampering. The judge noted that Poon's testimony conflicted with evidence of persons employed by Greg Wong, who testified that the Greg Wong offices were always locked; and the judge addressed a number of features of the evidence which counsel for the applicant had submitted rendered the testimony of Poon inherently incredible or suspect.

9.Having noted these features, contradictions and submissions, the judge nonetheless remained impressed by Poon's evidence. As to the contradictions about security, the judge acknowledged a difference between what rules laid down and what in fact happens, and he was satisfied that the three alleged conspirators had ready access to the offices of Greg Wong. It would not be surprising, he said, on a project of this kind, that the presence of the men whose function it was regularly to deliver samples to the offices were seen there on occasions in circumstances that did not arouse suspicion.

10.In the event, the judge was satisfied that Poon had told the truth and that the applicant had been the instigator of the scheme to submit false samples and, accordingly, he convicted the applicant.

The grounds of appeal

11.The perfected grounds of appeal as re-amended were these:

"	1.	That the judge erred in fact in convicting the applicant because he:
		(1) misunderstood and misapplied the evidence of Poon;
		(2) failed to properly take into consideration the two records of interview of the appellant;
		(3) made incorrect findings of fact; and
		(4) based findings of fact on speculation.
	2.	That the judge erred in law in that:
		(1) he applied a misplaced or wrong burden of proof;
		(2) failed to properly apply his mind to all elements of the charge;
		(3) failed to properly direct himself in relation to the evidence of Poon.
	3.	The conviction is unsafe and unsatisfactory in that it was unwarranted in all the circumstances to wholly accept and act on the evidence of Poon."

12.These grounds, which were not originally drawn by Mr Mughal, but by another counsel of considerable experience in criminal law, are wholly inadequate, bereft as they are of any particulars at all of the assertions they contain. Grounds of appeal are not to be used as a vehicle for standard catch phrases which might be applied to just any case, awaiting skeleton arguments as the time to think about the case and present its true essence only then. Nor, conversely, one might add as a matter of precaution, should they be the vehicle for a long screed within which somewhere there is buried the kernel of the attack, a kernel only to be recognised upon an exhaustive reading of an extensive document or upon oral argument when the Court asks counsel to identify the issues. Grounds of appeal are to be drawn with care and precision so that the issues in the case are readily apparent to the reader.

The argument on appeal

13.In the event, however, the grounds of appeal are not reflected in the written arguments, also not drawn by Mr Mughal, but adopted orally today. The essence of the written argument arises from test results of soil samples sent to the laboratory after the second of the incidents upon which the conviction depends. The relevant test is one that is known as the Aterberg test, which tests the liquid limit and plasticity index of soil. Fourteen test results were produced to the court dated from 23 June 1997 to 23 December 1997. The argument is that these results contradicted the testimony of Poon. The contention, which the judge rehearsed in some detail in his Reasons for Verdict, was that:

(1)	some of those tests did not incorporate the Aterberg test at all;
(2)	others tested only one or two bags of samples, not three; whereas in both the incidents upon which the prosecution relied there were three bags; and
(3)	in those cases before 13 August 1997 - and there were two in number before mid-August in which three bags had been tested by the laboratory - the samples failed the liquid limit and plasticity tests, indicating that the samples had too much moisture to qualify for use as fill on the slopes.

14.The magic, as it were, of the date 13 August 1997 is that that is the date, given by the applicant in his interview, by which a technique had been perfected of mixing soil with blast material, thereby ensuring that the proportions of disparate content within the soil were satisfactory and destined to pass the tests.

15.It followed from all this, so went the argument, that none of the tests conducted could have been conducted upon either set of three bags about which Poon testified.

16.What the judge said about this was as follows:

"37. The flaw in this reasoning to my mind is that it is too simplistic. It is a non sequitur to state that because the test results showed that the samples submitted before 13 August had too much moisture, that shows that the mixing or swapping incidents testified to by Poon could not have happened because the defendant had found the soil samples 'too sticky' on those occasions and had taken steps to render the soil more dry so that it could pass the test. Certainly it is a fact, according to Poon's evidence, that the defendant's purpose in mixing the more sandy soils with the samples and swapping the samples was because he had found the samples 'too sticky', and the addition of the more sandy soil should have rendered the samples less sticky. But, in my view, it is a non sequitur to state that because all the samples tested failed the Aterberg test, showing that the samples had too much moisture in them, that they could not have been or were not likely to have been the samples which had been mixed with the more sandy soil or substituted as testified to by Poon.

38. The reason that they failed the Aterberg test may well have been simply that the mixing and/or adulteration of the samples with more sandy soil did not achieve its intended purpose of ensuring that the samples would indeed pass the Aterberg test. It is to be noted that there is no evidence which gives any indication of what the defendant's experience or expertise in this area was, namely in being able to accurately judge whether a particular sample would or would not pass the Aterberg test.

39. Mr Kwok further submitted that since the later test results are consistent with the defendant's allegation in his record of interview that by mid-August they were mixing soil with blast material and had got the proportions right, and also with Mak's evidence to the same effect, that there was therefore no need to send in further soil samples for testing their moisture content for suitability for use as fill material, and therefore no need for the adulteration and swapping alleged by Poon to have taken place at the instigation of the defendant. That suggestion was not put to Mak or any of the other witnesses. I do however note that the defendant did say in his records of interview that the SMEC only conducted tests on a few occasions and that once soil had been passed by the SMEC there was no need for it to be tested again before being used as select fill. However, the evidence does not indicate that the defendant knew or had reason to believe that after 13 August 1997 soil samples were not being submitted to the SMEC for Aterberg tests to test their suitability for use as select fill.

40. All in all the test results which Mr Kwok carefully took me through do not, in my view, contradict the evidence of Poon, nor do they cause me to doubt the reliability of Poon's evidence." (Tr p 26H-27Q)

17.It is upon this issue that the arguments are now concentrated. It is an argument presented in the written submissions under the guise of many separate heads but, as Mr Mughal realistically accepted in the course of his submissions, the point is in reality a solitary one.

18.It is said that a failure in the test "could reasonably cast doubt as to whether the appellant had tampered at all or not". Well, so it could, if viewed in isolation. But it was not to be viewed in isolation, for there was the evidence of Poon which was believed and which was not necessarily inconsistent with the tests, as the judge explained.

19.Then it is put another way: that the burden was on the prosecution to prove that the tampering produced an unsuccessful result. That, with respect, is a little difficult to follow, but the answer is that the burden on the prosecution was merely to prove that the applicant had acted dishonestly in seeking to tamper with samples so as to produce a fake result, and not that the fake result was in fact achieved. It is said that the judge adopted an erroneous standard of proof, one akin to the standard for civil cases in that he commented that the failure of the tests specimens "may well have been" caused by the fact that the defendant was unsuccessful in the tampering attempt. It was, according to this argument, for the prosecution to prove that that was so; and that there was no evidence about the applicant's suggested lack of expertise. The answer to this is the same as the answer to all the arguments thus far advanced, which is that the judge addressed the issue, as clearly he was obliged to do, and he found that the failure of the samples submitted for testing did not as a matter of logic mean that the evidence of Poon was suspect and in that approach, in our judgment, he cannot be faulted.

20.Then it is argued that the judge drew an adverse inference from the fact that the applicant had not given evidence. The basis for this contention seems to be that because the judge said that there was no evidence of the applicant's expertise, he was condemning the applicant because of his silence in that regard. This experienced judge said, at paragraph 43, that:

"The defendant, as I have indicated, elected not to give evidence or call any witnesses and it is trite that no adverse inference of any sort falls to be drawn from this fact. It is his right not to give evidence. He is perfectly entitled to put the prosecution to the proof of the allegation against him. The question remains at all times: has the prosecution satisfied me beyond a reasonable doubt of his guilt?"

To suggest that he turned the absence of evidence about the applicant's expertise as constituting silence by the applicant from which to draw an adverse inference is to misread the judgment entirely, and to misread the point that the judge was making about the applicant's expertise and the absence of evidence about it.

21.Then Mr Mughal argues that the judge erred in saying that there was no indication of the applicant's expertise. He argues that in so commenting the judge ignored the records of interview and the fact that his experience is there shown. Let us, however, look at the expertise to which the judge was in fact referring : "It is to be noted that there is no evidence which gives any indication of what the defendant's experience or expertise in this area was, namely in being able to accurately judge whether a particular sample would or would not pass the Aterberg test." (Emphasis added). Looking at the records of interview, it seems clear enough to us that there is nothing specific there about Aterberg expertise, nothing specific that emerges at all, and we are not persuaded by this point.

22.Then it is said in the written argument that in re-examination of the witness Poon, he was not taken to the laboratory reports to see how Poon reconciled their results with his earlier testimony. The answer to this point is that there was no cross-examination of Poon about it.

23.Yet further, it is contended that the judge failed to have regard to what the applicant said in his interviews; and we are taken in a written argument to specific parts of them. There is no reason for us to conclude that the judge had not in mind the exculpatory stand of the applicant in his interviews or the contents of them. He specifically, at paragraph 35 of his Reasons for Verdict, referred to the submissions of defence counsel by which his attention had been drawn to statements made by the applicant in those interviews, and the suggested consistency of what he there said with other evidence. We see also at paragraph 39 of those Reasons specific reference to the applicant's contentions in his interviews.

24.We are, finally, taken to the suggested significance of the test results, namely, that they cast doubt on Poon's credibility. The answer, as we have earlier intimated, is that they had the potential to cast doubt, and that the judge was well aware of that potential, but that they did not necessarily cast doubt; and that is the end of it.

25.The next ground, as it is presented in written submissions, is that the judge "overlooked incontrovertible documentary evidence". This relates to the applicant's contention in his interviews that by mid-August 1997 a successful method had been designed by which to ensure correct proportions in the soil. The point made is that if that were so, there would be no need to send in further soil samples for testing, and no need, therefore, for adulteration. The judge addressed this, and we see that from paragraph 39 of the Reasons for Verdict which we have earlier recited; but the issue taken on this application is with the judge's remark in that paragraph that:

"However, the evidence does not indicate that the defendant knew or had reason to believe that after 13 August 1997 soil samples were not being submitted to the SMEC for Aterberg tests to test their suitability for use as select fill."

26.The 'incontrovertible documentary evidence' which the judge is said to have overlooked are faxes submitted by Zen Pacific to the laboratory asking for tests and specifying which tests were required, and they bear the applicant's name. Their dates range from 20 June 1997 to 23 December 1997, and the original argument was that they show that there were no requests for Aterberg tests. That argument cannot stand, as was pointed out in the respondent's written submissions, because it is not correct as a matter of fact: the request dated 4 November 1997 includes a request for an Aterberg test. So it is said, as a variation on the theme, that those faxes show that sets of three bags were not submitted after 13 August and specifically not on 4 November. The answer to this is that for the purpose of this particular point, the number of bags is irrelevant. The fact is that soil was submitted for an Aterberg test. We have been told by Mr Zervos today that it is not in any event correct to say that three bags were always sent, but it is not necessary for us to determine that particular point.

27.Furthermore, as Mr Zervos has pointed out in his written submissions, the dates provided by Poon for the two incidents of subterfuge were approximations, and it is to be recalled that the arrests of the applicant and others occurred some substantial time after the events in question. In the case of Poon, he was arrested in April 1999, two years, approximately, after the events in question; and his oral testimony was much later than that. Further than that, we are informed that there was no cross-examination of Poon in relation to the faxes which we have now been shown. In the event, the point does not lead us to doubt the judge's conclusion.

28.Then there is the fall-back submission that the verdict is unsafe and unsatisfactory. This ground is an attack on the reliability of Poon's testimony by reference to a number of matters, such as the conflict between his evidence and that of others as to access to the offices of Zen Pacific. We have considered the various points made under this head, but are unimpressed by them.

Conclusion

29.It will be apparent that we conclude that there is no merit at all in the grounds advanced, although we are grateful to Mr Mughal for the fact that he has presented an impossible appeal succinctly and with modesty. In the event, this application for leave to appeal against conviction is dismissed.

30.The application is so unmeritorious that we have determined to exercise our powers under section 83W of the Criminal Procedure Ordinance, Cap 221; and we order that three months of the time served by the applicant pending determination of this application shall not retained as part of his sentence.

Representation:

Mr Hanif Mughal and Mr Douglas Kwok instructed by Messrs Hastings & Co. for the Applicant

Mr K P Zervos SC, SADPP of the Department of Justice for the Respondent