HKSAR v. Wong Kwok Wang, Warren
Read the full judgment text of CACC 45/2005 on BabelCite. This Court of Appeal judgment was delivered on 20 March 2008.
1. In these applications, we are concerned with two trials: a High Court trial and a District Court trial.
Cites 2 cases
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CACC 45/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 45 OF 2005 (ON APPEAL FROM HCCC NO. 321 OF 2003) ------------------------------ BETWEEN
------------------------------ And CACC 461/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 461 OF 2006 (ON APPEAL FROM DCCC NO. 103 OF 2006) ------------------------------ BETWEEN
------------------------------ Before: Hon Stuart-Moore VP, Stock JA and Beeson J in Court Date of Hearing: 30 October 2007 Date of Handing Down Judgment: 20 March 2008 ------------------------------ J U D G M E N T ------------------------------ Hon Stock JA: Introduction 1.In these applications, we are concerned with two trials: a High Court trial and a District Court trial. 2.The High Court trial was conducted before Tong J and a jury between October 2004 and January 2005. In that trial the first applicant Warren Wong faced 13 counts of conspiring with Selwyn Chan (Chan) to solicit advantages in relation to a number of construction projects undertaken by Wharf Limited (Wharf). In relation to six of those counts Edwin Tso, who was the second applicant before us until the recent abandonment of his applications, was a co-defendant. Wong was convicted of nine of the 13 counts and was sentenced to a total of seven years’ imprisonment. Tso was convicted upon five counts and sentenced to a total of six years’ imprisonment. Wong now seeks leave to appeal against those convictions. We heard argument in Wong’s case in October 2007 together with Tso’s application for leave to appeal against conviction and sentence. Tso’s applications were adjourned part-heard but they have recently been abandoned and therefore stand dismissed. 3.The District Court trial took place before Deputy Judge S M Sham in September and October 2006. In that trial, Wong was the sole defendant upon four charges of conspiring with Chan to accept advantages in relation to a number of other construction projects. He was convicted upon all four charges and sentenced to a total of four years’ imprisonment, two of which were ordered to run consecutively to the seven years imposed in the first case. Wong now seeks leave to appeal against these convictions too and against the District Court sentence. The allegations 4.The background to the two cases is the same. Wong commenced working for Wharf in 1985. In 1995 he was appointed Assistant Chief Manager of the Project Audit Department of Wharf and as its Chief Manager in early 2001. In those capacities, his responsibility was to examine the cost and expenditure of construction projects of two companies within the Wharf Group: Wharf Holdings Ltd and Wheelock and Co. Ltd. 5.In the course of his work with Wharf, Wong met Chan who had worked for Wharf between 1989 and 1991. Chan was a project manager but he left Wharf in 1991 to set up his own business and it is common ground that the two men maintained contact. 6.It was Wong’s function to prepare recommendations in relation to projects in the context of the companies’ tendering procedure. That procedure was intended to be confidential to officers of the companies. Chan’s role in the suggested conspiracies was to approach contractors interested in securing a role in a project and, in exchange for financial reward, to provide them with tender information at different stages of the tender procedure so as to improve their chances of securing a contract. It was alleged to be Wong’s function to provide the information. Payment was then made by the corrupt contractor to Chan who would share the bribe with Wong. 7.Tso was at one stage employed by one of the contractors, Hip Hing, and came to know one of its officers, a man called Yu. Yu’s evidence was that Tso called him in 1999 asking whether Hip Hing was interested in a particular Wharf project and that somebody for Wharf could help to secure the project in return for a fee. The suggestion was that Tso acted as a middleman between Hip Hing and Chan. There was also evidence from a Mr Ho of Gammon Skanska Limited that Tso called him in January 2002 asking whether Gammon wanted to secure a particular project for which Gammon had tendered and suggested that he knew of an influential person who could effect that result. Ho refused. Then in May 2002, according to the evidence, a similar suggestion was made by Tso in relation to securing a reduction in a project penalty imposed on Gammon by Wharf. Ho reported the matter to his superiors and the ICAC was informed. This led to arrests which in due course resulted in these prosecutions. 8.In both trials, Chan was the main prosecution witness. He gave evidence under immunity. 9.Chan’s evidence was corroborated by a number of sources, including false documentation and documentary evidence showing funds flowing from the tendering companies to Chan and then on to Wong. The defence evidence 10.Wong gave evidence in both trials and said that Chan’s testimony was entirely untrue. He admitted that he had had access to confidential information but so did a number of others at Wharf. Over the years he had indeed been in receipt of regular payments from Chan; this was however not corrupt money but rather payment for ‘moonlighting’ services performed by him for Chan. The assistance provided was in relation to problems encountered by Chan in the realm of contract management, such as drafting of documents and certificates and, at a later stage, in relation to more technical issues. He had no idea of the source of funds used by Chan to pay him. No agreement had ever been reached as to the level of fees: he merely accepted what was paid to him. He had kept no records of his work for Chan or of payments, even though the amounts ran into millions. The High Court trial (1) The charges 11.The first count is typical of all the charges with which we are concerned. It was levelled against Wong and Tso and charged them with conspiracy to solicit an advantage for an agent, contrary to sections 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 and sections 159A and 159C of the Crimes Ordinance, Cap. 200. The particulars of the offence were that: “Wong Kwok-wang, Warren, being an agent, namely Chief Manager of Wharf Limited (“Wharf”), and TSO Wai-cheung, Edwin, between the 1st day of January 2002 and the 11th day of December 2002, in Hong Kong, conspired with CHAN Siu-wing, Selwyn, to, without lawful authority or reasonable excuse, solicit for the said WONG Kwok-wang, Warren, an advantage, namely a gift, loan, fee, reward or commission consisting of about $12,000,000.00 Hong Kong currency from HO On-sing of Gammon Shanska Limited, as an inducement to or reward for or otherwise on account of the said WONG Kwok-wang, Warren showing or forbearing to show, or having shown or forborne to show, favour or disfavour to the said Gammon Shanska Limited in relation to his principal’s affairs or business, namely the project of Wheelock and Company Limited known as Bellagio Phase II.” (2) The verdicts 12.Wong was convicted (as was Tso) upon Counts 1, 3, 5, 6, 7, 8, 9, 11, and 13, and acquitted in respect of Counts 2, 4, 10 and 12. (3) Cross-examination as to motive to lie 13.In the course of cross-examination of Wong by counsel for the prosecution, Wong was asked whether he, Wong, was aware of any reason why Chan would lie about Wong’s complicity in the corruption alleged. It is asserted by Mr Bruce SC on behalf of Wong that such a line of cross-examination was impermissible and, even if permissible, should have been the subject of a specific direction by the trial judge that there was no onus upon Wong to provide such a motive. 14.Counsel for the prosecution, in cross-examining Wong, reminded Wong that the evidence established that until his arrest he and Chan had been friends. Counsel went on:
15.In his closing address, prosecuting counsel included the following remark:
16.This matter was referred to by the judge in his summing-up. He summarised the point made by the prosecution, that:
17.Mr Bruce contends that it is improper so to cross-examine an accused as to demand from him an explanation why his accuser would falsely implicate him in the crime; for to do so is effectively to reverse the onus of proof and because the absence of evidence of motive for an lie cannot prove that there was in fact no motive for a lie. 18.The issue raised by Mr Bruce has been the subject of attention in a number of jurisdictions whose approach has varied. The cases appear concentrated on sexual offence allegations which so often involve one person’s sworn testimony against that of another, and little else. The fear is that in such a situation the failure on the part of a defendant to provide, where he is asked to do so, a motive on the part of the complainant to lie may unfairly lend weight to the complainant’s allegation and, more particularly, lead the jury to believe that there is an onus on a defendant to show a motive to lie. That potential danger is not, we think, restricted to sexual offence cases, but would appear to have raised itself as a problem in cases in that category. 19.The applicant has in his favour the majority judgment of the High Court of Australia in Palmer v The Queen (1998) 193 CLR 1. That was a sexual offence case in which the majority said, at 7:
20.It was doubted that the directions given in the particular case were capable of neutralising that which their Lordships concluded was the prejudicial effect of the impugned questions in cross-examination. 21.McHugh J disagreed with the majority’s approach to the prime question. He took the view, at 25-26, that:
22.In New Zealand, the majority opinion in Palmer has not been followed. It has there been acknowledged in R v T [1998] 2 NZLR 257 at 265-266, that:
The Chief Justice noted, at 264, in relation to that last point that in Palmer McHugh J had “stressed that where the prosecution sought to rely on the absence of a motive to lie, appropriate directions were required to avoid any risk that a jury might think there was an onus on the accused to adduce evidence of a motive, and to emphasise that regardless of whether any such reason had emerged, the Crown still had to satisfy the jury that the complainant was telling the truth.” 23.In England the issue has quite recently been addressed in R v B [2003] 1 WLR 2809, another case of alleged sexual offences. Allegations in that case were made against the defendant by two of his daughters and he was asked whether he could think of any of reason why they should tell lies against him. That question was permitted and he was unable to advance a reason. The Court of Appeal reviewed the authorities in a number of jurisdictions, including Palmer and R v T, noting that the decision in Palmer has since been met with some unease by the courts in different parts of Australia. Their Lordships noted, at 2819, that for at least forty years a question of the kind sought in the appeal to be impugned had been permitted by trial judges and concluded that the practice was not, in English law, impeachable. They said, at 2819 –2820, that:
24.We respectfully agree with the approach of McHugh J in Palmer, and of that of the courts of New Zealand and England as exemplified in R v T and R v B respectively. As far as we are aware, the question of the type now impugned has, as elsewhere, been one frequently asked in trials in Hong Kong. That of itself does not render it permissible, the issue now having been raised, but it accords in our judgment with the common sense and reality of the matter. We take the view that questions of this kind are permissible although we endorse the advice that in so far as the prosecution seek to accrue weight to the prosecution case from a defendant’s failure to provide a motive, it must be made clear to a jury by the judge that the burden remains throughout on the prosecution to prove the veracity of the testimony of the complainant or other prosecution witness, as the case may be, and not on the defendant to prove a motive to lie. 25.The instant case was not a case that depended solely on the word of a complainant or other single witness against that of a defendant. It was a case in which there was much evidence, quite apart from any suggested absence of motive to lie, that gave full credence to the testimony of Chan, most particularly documentary evidence that showed the course of funds from the contracting companies through Chan to the applicant. There was also evidence of false invoices and, significantly, no documentary evidence whatsoever supporting the applicant’s account that the funds to him flowed from a legitimate arrangement for moonlighting work he had carried out for Chan. To this extent, the impact of the question, and any suggested failure to answer it adequately would, we think, be less than in the Palmer and R v B case. 26.Moreover, the impugned question in this case begged to be asked because of the tenor of the cross-examination of Chan and of the testimony of the applicant, to the effect that there were other persons, named persons, who were privy to confidential tender information and with whom Chan might have had a corrupt relationship. This was bound to prompt the question put which was in its effect: Granted that a corrupt conspirator involved in a number of nefarious activities (corruption as well as other illicit matters were put to Chan) had a motive to point the finger at others – namely the prospect, in consideration of testifying against others, of immunity from prosecution – was there any reason known to the applicant why Chan would choose an innocent man (the applicant) rather than the corrupt co-conspirators? In any event, in this case, unlike the sexual offence cases to which we have referred, the defence were not left at a loss in terms of a suggested answer. The applicant ventured the obvious reason as to why Chan was inculpating others at all, namely, that he was himself corrupt and wished to avoid prosecution; and in his closing submission his counsel suggested that Chan may have chosen falsely to inculpate the applicant simply because in the applicant’s case “there was a consistent pattern of payment by Chan to Wong. It would have been easily digestible material to ICAC.” 27.There thus remains the question whether the jury may have been left with the impression that there was a burden upon the applicant to provide a reason why Chan had accused him, the applicant, rather than others who were or may, according to the defence case, have been the actual co-conspirators within Wharf. It would have been better had the judge expressly told the jury in relation to this particular question that there was no onus on the defendant to advance a credible answer but we do not in this case think that the jury can have been under any misapprehension in terms of the burden on each and every factual issue. In addition to a reminder to the jury (page 57, summing-up) of the reasons advanced by the defence why Chan had a motive to lie, and in addition to the general and usual direction as to the burden and standard of proof, they were told at the very outset that the defendant did “not have to prove anything” (summing-up page 1); that even if the jury did not believe the defendant, they had to look at the evidence of the prosecution to see whether the charges had been proved beyond reasonable doubt (page 38); and in so far as the prosecution had asked the defendants to produce documents to prove what they said was true, the judge said (at page 61): “… members of the jury, let me remind you that the defendants do not have any onus of proof. They did not have to prove anything”; a reminder repeated yet again towards the end of the summing-up (page 63). 28.We note as well that the judge specifically addressed the suggestion advanced by prosecuting counsel in his cross-examination that there was no reason for Chan to lie since if he lied he would run the risk of losing his immunity – a suggestion that ought never to have been made – by telling them that it was a matter for them to decide whether they believed witnesses who gave evidence under immunity but that “it cannot be for the reason the prosecution suggested, because there may be a flaw in the logic. If that logic is accepted, then one may wrongly conclude that all witnesses under immunity would always be telling the truth. Well, members of the jury, experience tells us that it is not the case, and, after all, it is not for the prosecution to decide whether the witness was telling the truth. It is a matter for the court and for you.” 29.We conclude in the circumstances that this ground of appeal has not been made out. (4) Separate consideration 30.It is further contended that there was a material irregularity in the summing-up in that although the trial judge directed the jury that they must consider each count separately, he failed to direct them that if they entertained a reasonable doubt about Chan's credibility upon one or more of the counts, that doubt might be utilised in the jury’s consideration of his evidence in relation to the other counts. 31.There is nothing in this point. The manner in which the judge directed the jury as to separate consideration was not in standard form. He told them that whilst in principle they had to consider the counts separately, the evidence was much interrelated in this case and the effect of his direction was clear enough: that if the jury doubted the veracity of Chan they should acquit altogether. Indeed he said in terms that if the jury rejected part of the testimony of a witness they ought most carefully to consider whether that witness could still be believed in respect of other parts. In the context of this case, there was nothing wrong with the judge’s directions in this regard nor any material omission from his directions. (5) Conclusion 32.Accordingly, the application for leave to appeal against conviction in the High Court case is dismissed. The District Court case (i) The application to stay the proceedings 33.There were four charges in the District Court. Wong was the sole defendant. Each alleged a conspiracy with Chan to accept commissions from a company (three different companies for the four charges) in respect of projects undertaken by Wharf. The conspiracies ranged in date from January 1998 to September 2002. 34.There was an application made to the District Court judge that the proceedings before him be stayed. He declined that application and it is said that he erred in doing so. It is said that since the charges were in substance the same as those in the High Court case, they should have been joined in the High Court indictment and that the failure to do so was such an affront to the conscience of the court that there was thereby constituted an abuse of the court’s process. It is further said that the events that formed the basis for the charges took place so long before the trial that it was not possible to accord Wong a fair trial. 35.We have been taken to a host of authorities on the question of joinder, none of which is of much assistance since the question of an abuse is fact and case specific and it is readily apparent to us without going into the cases that it is quite impossible to say that the judge erred in refusing a stay in this case. We do not perceive it to be the function of this Court in every case where an abuse is suggested – and suggestions of abuse are now commonplace – to rehearse the central principles. They are well known. 36.The applicant, Tso and Chan were arrested on 11 December 2002. Statements were thereafter taken from Chan who disclosed corrupt arrangements with the four contractors who were the subject of the High Court indictment. A number of charges were preferred in January 2003 and additional charges in April 2003. The first half of 2003 was peppered with a number of preliminary court appearances which eventually led to the committal of the case to the High Court in November 2003. The High Court trial commenced in October 2004 and was completed in January 2005. In June 2003, as a result of information supplied by Chan, a fresh investigation commenced overtly in relation to allegations of corruption with those contractors ultimately named in the District Court charge sheet. In the course of correspondence during the year 2004, it was made clear to Wong by the ICAC that other allegations against Wong were under investigation and that there was a possibility of further charges. 37.In February 2006, Wong was charged with the four charges in respect of which he ultimately was tried in the District Court. There were a number of pre-trial reviews and the case came on for trial on 11 September 2006. A mere five days before that, those acting for Wong filed a notice of motion seeking a stay of those proceedings on the grounds that the charges should have been joined with the indictment in the High Court case and that there had been unreasonable delay. It is significant, first, that no evidence was filed in support of the application and, second, that there was no suggestion that prejudice had been occasioned in the preparation of the defence. 38.In opposition to the application for a stay, evidence was filed on behalf of the prosecution. First, there was an affidavit of a Senior Assistant Director of Public Prosecutions who had been responsible for advising the ICAC in relation to this investigation. He deposed to the fact that prior to the commencement of the High Court trial he had pointed out to those acting for this applicant that investigations concerning him were still ongoing and that there were other allegations for which the applicant had not yet been charged. He had been asked after the conclusion of the High Court case whether the District Court case should proceed and in advising that it should, he took into account the fact that the charges were serious and that there were, in his opinion, sound reasons why the District Court charges could not have been tried with the charges in the High Court case. Included in his reasons were the fact that both this applicant as well as Tso had been arrested as long ago as December 2002 and that the High Court trial was scheduled to commence in October 2004. The results of bank inquiries in relation to the second case were, he understood, not going to be available until March 2004 and it would have taken several months for bankers’ affirmations to be obtained to cover the relevant bank records and to have the charges committed for trial. It was, he asserted, not possible to have the second case heard together with the High Court case without the risk of derailing the trial dates that had already been fixed. Moreover, had the charges in the second case been added to the counts in the first case there would have been an overloaded indictment and further complication of an already complicated jury trial. 39.An affirmation sworn by a senior investigator of the ICAC said that he and others had come to the conclusion that if the High Court case were put on hold pending the completion of the investigations into the second set of charges, the High Court case might have to be delayed substantially. It was possible that the further charges might embrace other defendants who did not include Tso. The bulk of the investigations were concluded in March 2004 but there was still much to be done. He added the further consideration, which we think of doubtful merit, that they thought it would be helpful to know what the High Court jury made of the testimony of Chan before proceeding upon further charges. 40.In his Reasons for Decision, the District Judge noted the various reasons provided and stated that he agreed that it would have been undesirable for the case against Tso to be delayed because of ongoing investigations which had nothing to do with Tso. He accepted that there had been a risk of upsetting trial date for the High Court case. 41.It may be that it would have been just possible to complete the paperwork and investigations into the second set of charges and to have made them part of the first case. It may be that some of the concerns of the ICAC and of those advising the ICAC were overcautious. The fact of the matter, however, is that in so far as Mr Bruce repeatedly says before us that the concerns to which this evidence referred were more imagined than real, the testimony about the history and the reasoning provided went unchallenged: there was no application to cross-examine any of the deponents. As Lord Morris pointed out in Connelly v DPP [1964] AC 1254 at 1304, views may differ as to what prosecutorial course is, in a particular case, desirable, but the mere fact that one might hold a different view from those responsible for the decision to proceed in one way rather than another hardly establishes an abuse of the process of the court. What the ICAC was here investigating was massive corruption extending over many years involving different companies and a host of potential defendants. This is quite different from the type of case with which Connelly was concerned – a single incident giving rise to more than one potential charge. In our judgment, Mr Bruce comes nowhere near showing that the judge erred in his decision. 42.As for the question of delay, the point made is close to bizarre. It is not suggested that the defendant was himself prejudiced in the preparation of his case by the gap between the events in question and the trial. It is suggested, rather, that that delay rendered Chan’s memory of events vague and unreliable. If it transpired, as is suggested, that his memory was patently unreliable, that was a factor that went to the question of the safety of the conviction, not whether there should have been a stay. (ii) Other grounds 43.The remaining grounds of application are palpably weak:
(iii) Conclusion 44.The application for leave to appeal against conviction in the District Court case is also dismissed. Sentence 45.There is an application for leave to appeal against the sentence imposed in the District Court case. It is said that the judge ought to have ordered the sentence there imposed to run wholly concurrently to that imposed in the High Court case; and that had the charges in the second case been consolidated with the counts on the indictment in the first, the overall sentence would not have been higher than that imposed in the High Court case. 46.In the High Court trial, the judge noted the senior position in the company occupied by Wong, that his conduct constituted a serious breach of trust, and the receipt by him of substantial sums of money. In relation to each offence he took a starting point of six years’ imprisonment and reduced that to one of five years to give effect to the mitigation advanced, in particular the applicant’s clear record and the devastating effect of the convictions on the applicant and his family. He ordered the terms of five years’ imprisonment to run concurrently but of the term imposed in relation to Count 13, he ordered two years to run consecutively to the rest; making a total of seven years’ imprisonment. The evidence in the first case had established that Wong had received bribes amounting to about $2.7 million; Chan had received more; and Tso in the order of $9.55 million. A restitution order was made in the sum of $2.312m. It should be noted that apart from the sums actually received a number of counts alleged sums solicited but not received: Count 1 on the indictment alleged the solicitation of $12 million from Gammon Skansa; Count 5 the sum of $10 million; and Count 9 the sum of $12 million. 47.In relation to the District Court case, Chan was said to have received $6.68 million and the applicant $2.957 million. 48.In the District Court case, the judge took, it appears, as a global starting point the term of four years’ imprisonment, which he imposed in respect of each charge and ordered all terms to run concurrently, making a total of four years’ imprisonment, and ordered two years of that to run consecutively to the seven-year term imposed in the High Court case; and ordered restitution in the sum of $2.957 million. 49.We take the view that the resulting term of four years’ imprisonment in respect of this second case was manifestly low. As to the order that two years be served consecutively to the term imposed for the High Court case, we do not agree with the contention that that was either wrong in principle or manifestly excessive. The sum received exceeded the sum received in the High Court case; and the corruption was extensively in excess of that reflected in the High Court case. Overall, this applicant occupied a very senior position in a major company and in that capacity was a willing and key party to corruption that went on time and again over a period of about five years. This was widespread corruption in which he was steeped. It involved a major and continuing breach of trust in an industry that lends itself too readily to rampant dishonesty of this kind. It would seem that once it becomes known that at the heart of a major company in whose gift it is to award massively lucrative contracts, there sits a corrupt officer willing to sell himself in order to exert influence, many contractors are only too ready to avail themselves of the opportunity. Such officers and such contractors must be made aware that they can expect no quarter from the courts if they are caught. A total sentence of nine years’ imprisonment imposed upon a person occupying a high position and acting in breach of trust who pleads not guilty to continuous corrupt offences of this magnitude and over this period of time cannot in our judgment be said to be manifestly excessive. 50.Accordingly, this application for leave to appeal against sentence is dismissed.
CACC 45/2005 Mr Andrew Bruce, SC and Mr Felix Hoe instructed by M/s Arthur Au & Co for the Applicant Mr Jonathan Acton-Bond, on fiat, for the Respondent CACC 461/2006 Mr Andrew Bruce, SC and Mr Felix Hoe instructed by M/s Arthur Au & Co for the Applicant Mr Peter Callaghan, on fiat, for the Respondent Appeal dismissed: see FACC6/2008 dated 14 May 2009 |
Cases cited in this judgment
Further hearings and rulings under CACC 45/2005