HKSAR v. Lau Kam Kee, Edmund
Read the full judgment text of CACC 384/2007 on BabelCite. This Court of Appeal judgment was delivered on 17 October 2008.
1. The applicant was convicted by District Judge Chua after trial of 5 charges of “agent accepting an advantage”, contrary to sections 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 (“POBO”), and one charge of “conspiracy to offer advantages to an agent”, contrary to sections 9(2)(b) and 12(1) of the POBO and sections 159A and 159C of the POBO.
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CACC 384/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 384 OF 2007 (ON APPEAL FROM DCCC NO. 256 OF 2007) ----------------------
---------------------- Before: Hon Tang VP, Cheung JA and Tong J in Court Date of Hearing: 10 October 2008 Date of Judgment: 17 October 2008 ---------------------- J U D G M E N T ---------------------- Hon Tang VP (giving the judgment of the Court): Introduction 1.The applicant was convicted by District Judge Chua after trial of 5 charges of “agent accepting an advantage”, contrary to sections 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 (“POBO”), and one charge of “conspiracy to offer advantages to an agent”, contrary to sections 9(2)(b) and 12(1) of the POBO and sections 159A and 159C of the POBO. 2.He was sentenced to a total of 33 months’ imprisonment. This is his application for leave to appeal against conviction and sentence. Background 3.The applicant joined Barbican Construction Company Limited (“Barbican”) on 1 August 2002, and since 1 January 2005 was an assistant project manager. 4.Barbican was a subsidiary of NWS Holdings Limited, a contractor of the Civil Engineering and Development Department in relation to slope maintenance works. Barbican had been awarded contracts GE/2001/35 (“Contract 2001”), GE/2004/03 (“Contract 2004”) and GE/2005/42 (“Contract 2005”). The applicant represented Barbican at the sites in connection with those contracts. 5.Barbican in turn subcontracted the slope maintenance works to various subcontractors. 6.Parts of Contracts 2001 and 2004 were subcontracted to Fuk Shing Engineering Company (“Fuk Shing”) in April 2003 and November 2004. Mr Lai Kam-fuk (PW5) was the sole proprietor of Fuk Shing. 7.In or about March 2006, Fuk Shing was in financial difficulties and its Subcontract-FS2 was terminated by Barbican. Another subcontractor also surrendered its subcontracts due to financial difficulties. 8.The works left unfinished by Fuk Shing and the other subcontractors were then subcontracted to Wealth Success Construction Engineering Company Limited (“Wealth Success”) and Workbase Engineering Limited (“Workbase”). 9.Parts of Contracts 2004 and 2005 were also subcontracted to Wealth Success between December 2005 and May 2006. 10.Parts of Contract 2004 were subcontracted to Workbase in June and August 2006. 11.Under the subcontracts, Barbican had to make interim payments and advance payments to the subcontractors, depending on the progress of the works or in order to relief the financial pressures of subcontractors. Sometimes, payments were made by Barbican directly to workers and / or such subcontractors. The applicant assisted in certifying the interim payments certificates. 12.Barbican had issued a “code of conduct” for its employees, prohibiting them from solicitation and / or acceptance of advantages of over $200 without the permission in writing from his managing director. The applicant had never sought or obtained permission for the solicitation and / or acceptance of an advantage. The prosecution case 13.The prosecution’s allegations, in broad terms, were that, as an assistant project manager, the applicant was in an influential position in awarding Barbican’s subcontracts as well as arranging interim payments to its subcontractors, and by virtue of that position, the applicant accepted bribes from a number of subcontractors. The ICAC investigation was launched after PW5 who was aggrieved by Barbican’s termination of his subcontracts decided to inform on the applicant. The Charges 14.The 6 charges fall into 3 categories: (1) Charges 1 and 2
(2) Charge 3
(3) Charges 4 to 6
The Evidence The 2nd charge 15.Shortly after the interim payments to Wealth Success by Barbican for Contract 2005, $40,000 in cash was withdrawn from Wealth Success’ account on the instruction of So Wing-shan and put into an envelope. On 4 July 2006, the applicant whilst being monitored by the ICAC, was seen meeting So Wing-shan at the Garden Restaurant in Yau Ma Tei, when So Wing-shan passed a long white envelope to the applicant in the presence of his son-in-law (PW10). PW10 had earlier given the white envelope to So Wing-shan. During the applicant’s 1st video interview by the ICAC he said:
and that the applicant
16.The applicant was then arrested and the long white envelope was found to contain 40 $1,000 notes and this was the subject of the 2nd charge. The applicant was escorted back to ICAC headquarters. His 1st video recorded interview took place between 1542 and 1628 hours. During this interview, the applicant said that the $40,000, the subject for the 2nd charge was given to him by So Wing-shan:
At 320-321, when asked whether the $40,000 was a bribe he said he could not distinguish. At 354, the applicant was asked (A was the investigator, C was the applicant):
Such evidence has not been disputed by the applicant. The 1st charge 17.The evidence was that after Barbican had made payments to Wealth Success in connection with Contracts 2004 and 2005, So Wing-shan asked PW10 to issue a cash cheque for $80,000. The cheque was subsequently encashed. So Wing-shan instructed a staff of Wealth Success to withdraw $80,000 in cash. So Wing-shan called PW10 and asked for a bundle or file of documents and the $80,000 cash to be delivered to him at the Garden Restaurant. The file of documents and the cash, which was in a white envelope was handed by PW10 to So Wing-shan. Then they were at the bank of the Garden Restaurant when the applicant came in a van. They got in the van. According to PW10 the file was handed over (he could not tell whether the white envelope was inside the file) but he heard So Wing-shan said:
PW10 gave his evidence in Cantonese. His evidence was interpreted. It is of interest to note that the court interpreter initially interpreted what he said as:
In other words, the court interpreter interpreted the Chinese word “So” as “the sum of money”. 18.PW10 was a graduate in economics and knew English. PW10 challenged the interpretation of “數” as “the sum of money”. Then, there was this exchange in the transcript at page 585:
Later PW10 said the applicant in response said “It’s okay” but PW10 added “He took it. Well, I do not remember the exact words used.” 19.PW10 is correct that “So” （“數”） in Chinese literally meant “number” or “numbers”. But in the context, we have no doubt that it referred to money. We also note that in Ms Lan’s cross-examination of PW10, she had not suggested to PW10 that there was not the occasion as described by PW10 or that although a file had been given to the applicant, it contained no money. 20.In finding that the payment under the 1st charge proved, the judge mentioned the striking similarities between the payments under the 1st and the 2nd charges and concluded that the similar evidence rule applied. 21.The learned judge held that So Wing-shan had paid the $40,000 and $80,000 to the applicant on the two occasions because the applicant had assisted in the award of contracts and influenced the interim payments to Wealth Success. The learned judge concluded that the $40,000 and $80,000 were corrupted payments to him as a reward for showing favour to Wealth Success. 22.The learned judge rejected the suggestion that the applicant received the payments for moonlighting advice given to So Wing-shan. At trial, Mr Mackay for the prosecution accepted that if the payments had been made to the applicant for moonlighting then the offence would not have been made out. We must proceed on the basis of the concession. But we do not want it to be thought that we agree that payment for so-called moonlighting work cannot in any circumstance constitute an offence under section 9. The 3rd charge 23.The direct evidence on the 3rd charge against the applicant came from PW5 who had pleaded guilty to the mirror charge and was then awaiting sentence pending the conclusion of the case against the applicant. There was of course the applicant’s admission in Exhibit P2. 24.PW5 alleged that the applicant had asked him for 5% of the contract sum as introduction fees and for the assistance he rendered to Fuk Shing in the preparation of documents, including the application for interim payments. PW5 said he had paid a total of over $100,000 to the applicant after Fuk Shing received payments from Barbican. 25.The prosecution also sought to rely on Exhibit P2 which was PW8’s notebook entry, the admissibility of which was challenged, in particular, insofar as it purported to record the applicant’s admission that he had received over $100,000 from PW5. Exhibit P2 is the entry in the notebook of Chee Ming-him (PW8), a Senior Investigator with the ICAC which had been signed (in various places) and acknowledged to be correct to the applicant. The applicant challenged its admissibility. Put very briefly, the applicant denied ever admitting to the receipt of any money from PW5 and that he signed Exhibit P2 after being threatened. Ms Lan had produced at trial a 5-page long Grounds of Objection. The applicant gave evidence in relation to the admissibility of Exhibit P2 but not on the general issue. Voir dire 26.The learned judge held a voir dire in relation to Exhibit P2. As noted, the dispute in relation to Exhibit P2 (Exhibit P2a is its translation) concerned in particular, the statement therein allegedly made by the applicant that he had received over $100,000 from Lai Kam-fuk, the subject of the 3rd charge. The applicant gave evidence in the voir dire. The learned judge ruled in favour of admissibility. In her ruling she said:
27.Mr Grossman submitted that it was improbable that the applicant who had denied the receipt of any money from PW5 during the 1st video interview would have subsequently admitted to PW8, that he had received “over one hundred thousand (dollars)” from PW5. But Exhibit P2 was recorded at about 2000 hours on 4 July 2006. Between the 1st video-recorded interview and the recording of Exhibit P2, there had been a search at the applicant’s office and searches on two vehicles, where copies of cheques and invoices relating to charges 4 to 6 were found, including:
28.It was the prosecution evidence that upon finding those documents, the applicant was asked what they were and the applicant said it was Ah Ho of Workbase who lent him the money. The applicant also admitted to have received over $100,000 from Fuk Shing. The applicant’s admissions were then recorded in the notebook of PW8, which became Exhibit P2. 29.The learned judge concluded that PW5 had not fabricated the essential core of his allegation against the applicant and that the applicant himself had admitted receiving over $100,000 from PW5. The learned judge therefore also convicted the applicant of the 3rd charge. The 4th to 6th charges 30.The 4th to 6th charges related to alleged payments from Workbase to the applicant. Apart from the applicant’s admission that the payments came from Ah Ho of Workbase, there was the evidence that the applicant issued false invoices to create fictitious transactions between Hung Fat, MET and Workbase to cover up the true nature of the payments after corresponding payments were made by Barbican to Workbase. 31.The applicant not only made admissions to the ICAC about the payments, but also suggested that he did not want others to know about them, and that is why he approached his friends in order to be able to use the names of Hung Fat and MET to collect the payments. 32.The learned judge concluded that the payments to the applicant by Workbase were corrupt payments in order that the applicant would continue to show favour to Workbase. Defence Case 33.The applicant did not give or call any evidence, but through his counsel, suggested in cross-examination that the payments under the 2nd, 4th to 6th charges were rewards for moonlighting work. The payment under the 1st charge was said not have been proved. As for the alleged payments under the 3rd charge, the suggestion was that PW5 lied. In any event, it was said PW5 was not a reliable witness and his evidence should not have been acted upon. Grounds of appeal 34.Mr Grossman leading Ms Gekko Lan, appearing on behalf of the applicant, advanced 24 grounds of appeal in the perfected grounds of appeal. We have had the benefit of carefully prepared written submissions from the applicant. We will deal with the submissions in the order as they appear in the applicant’s written submissions. We are also indebted to Mr Marco Li, who appears for the respondent, for his helpful submission. Grounds 1 - Perception of victims not state of mind of the applicant 35.This applies to all the charges and comes under the above heading. 36.Mr Grossman submitted that the learned judge erred in finding that in proving the offences, it was the perception of the victim as opposed to the applicant’s state of mind which mattered. We have been referred to para. 38 of the Reasons for Verdict (“the Reasons”). But it is clear that the learned judge was aware that it was for the prosecution to prove that the applicant knew that the payments were for corrupt purposes. The learned judge said:
37.With respect, Mr Grossman has taken the passages in the judgment referred to by him out of context. There the learned judge was dealing with Ms Lan’s submission, which she has quoted as follows:
Ms Lan’s suggestion seemed to be that the payments were not bribes because bribes were not necessary. 38.It was in that context that the learned judge referred to the prosecution submission that although bribes were not necessary it was the perception of the victim which mattered. The learned judge said:
39.That was followed in para. 39 by a reference to section 11 and the fact that it was no defence that the applicant was unable to help or that he never intended to do so. 40.Mr Grossman also complained that the learned judge should not have found that the applicant knew that the payments were corrupt payments. He submitted there was no support for the learned judge’s finding that in relation to the payments from Workbase:
41.But as Mr Marco Li submitted, the facts in the present case are in many respects very similar to those in Li Defan and Anor v HKSAR [2002] 5 HKCFAR 320. There, D1 was the head of the business development department of a bank, who was paid almost HK$4 million by a customer to facilitate the approval of loan to him of US$40 million. Bokhary PJ, in his judgment, which was agreed to by the other members of the court said:
As Li Defan shows, depending on the evidence and circumstances, the absence of direct evidence as to why the payment had been made is not fatal to a conviction under section 9. Mr Grossman relied heavily on the fact that it was suggested in cross-examination by Ms Lan that the applicant might have been moonlighting. But Mr Grossman accepted that there was no evidence that any of the alleged payments was related to any of the alleged moonlighting work. 42.Here, the applicant had not given evidence on the general issue, and in all the circumstances the learned judge was perfectly entitled to infer on the evidence that the applicant knew that the payments were corrupt payments. Ground 3 43.This relates to the learned judge’s admission of Exhibit P2. 44.Mr Grossman submitted that the learned judge’s ruling on voir dire is too brief. They can be found in the transcript at pages 574 and 575. I have already quoted that in para. 26 above. 45.In the Reasons the learned judge referred to her ruling but did not expand on it. With respect, we do not agree that the learned judge had given insufficient reasons. Mr Grossman, in particular, relied on the submission which we have dealt with in paras. 27 and 28 above. However, it is clear that during the 1st video interview, the applicant told the ICAC officers that, apart from the $40,000 which he was seen receiving when he was arrested, he had not received any money from any other subcontractors he had mentioned, including PW5 (see 360-367). But after the various documents were found, and it became clear that money had been received from Workbase, and he had used companies belonging to his friends PW6 and PW7 to receive them for him, Exhibit P2a went on to record:
46.There is nothing in the submission that since the applicant had denied receiving any money from PW5 in the 1st video interview it was improbable that he would have admitted such receipt subsequently. 47.In R v Wong Wing-yuet and Ors, unreported, CACC 611/1995, dated 14 February 1997, where after hearing lengthy submissions from counsel against admissibility, the trial judge simply said in his ruling:
48.On appeal Mortimer JA giving the judgment of the court said:
49.Here the learned judge had had the benefit of the comprehensive grounds of objection prepared by Ms Lan, the evidence of prosecution witness and the applicant, their cross-examination, and counsel’s very full submission. In such circumstances we are satisfied that adequate reasons have been given. 50.The rest of the lengthy submission on this ground, is an attempt to reopen all the factual arguments advanced before the learned judge. As Mr Marco Li has submitted, the applicant had given evidence in the voir dire, Ms Lan had cross-examined at great length and addressed the learned judge in detail as to why the Exhibit P2 should not be admitted into evidence. In such circumstances, we do not see any basis upon which we could possibly interfere with the learned judge’s decision. Ground 5 - Interruptions by the trial judge 51.We have read all the references referred to in the written submission. Mr Grossman was asked to read to us those references which he regarded as most supportive of this submission. He referred us in particular to pages 523-533 in the transcript, which related to PW5’s record of payment at pages 852-853 of the appeal bundle. The interruption began when Ms Lan referred to the original because the entries were made by 2 different pens as the ink was different. The learned judge only had a photocopy. Then there was great confusion because PW5 had mistaken the month as a digit in the numbers following. But we are of the view that the learned judge’s interjection though frequent were made out of a genuine desire to understand not only the answer but sometimes the questions. We can see no hint of any bias in the questions. We will reproduce just a few pages read to us by Mr Grossman.
52.As was said in R v Yeung Mau-lam [1991] 2 HKLR 468 at 473:
53.That approach was endorsed by the appeal committee of the Court of Final Appeal in Chan Kam-keung v HKSAR, unreported, FAMC 43/2008, 11 September 2008, where the Chief Justice also said:
54.Here, the learned judge had to operate under difficult circumstances, and probably due to the interpretation of the evidence, some of the questions and answers were not as clear as they should have been. Many of the interruptions by the learned judge were prompted by the need to elucidate. From our reading of the transcript, we are satisfied that the learned judge was courteous and patient with Ms Lan. As was the case in HKSAR v. Mohammad Jahangir [1998] 1 HKC 455:
55.Mr Grossman referred us to HKSAR v Chan Kwan-kan [1998] 1 HKLRD 495. There this court emphasised the importance that the trial judge should retain an air of impartiality and that intervention by a judge that made it impossible for defending counsel to do his duty will lead to the conviction being quashed. But the present case bears little resemblance to the conduct in Chan Kwan-kan. 56.Mr Grossman also referred to instances in the past where the same learned judge had been severely criticised by this court and the convictions quashed. But it is important not to forget that when errors have been identified by the appellate courts, judges do try to modify their conduct. Sometimes one might not succeed at once but the desire to improve is real. We must proceed on the basis of the learned judge’s conduct in this case. As for the applicant’s comment on the fact that the learned judge had mentioned the possible delay of her holiday on the 12th day of trial, we are satisfied that that had not in anyway affected the learned judge’s patience. Ground 4 - Defence case not dealt with in Reasons for Verdict 57.Mr Grossman accepted that this is not an independent ground of appeal. Grounds 2, 6, 8 and 20 - No basis to draw inferences of corrupt intents on parts of the offerors 58.With respect, we agree with the respondent’s submission that counsel for the applicant seem to have misunderstood the nature of the offence under section 9 of POBO. Section 9 of POBO covers corrupt transactions with agents, not dishonest acts by agents. See Ch'ng Poh v The Commissioner of the Independent Commission Against Corruption [1997] HKLRD 652, 656 A-B and 657 A-D. 59.In this case, the question is whether the defendant had accepted an advantage as an inducement to or reward for or otherwise on account of the applicant showing or having shown favour to a company in relation to the affairs or business of his principal. The learned judge was entitled to draw the inference, in the circumstances of this case, that the payments were corrupt payments paid to the applicant because of his position and his ability to influence the awarding of contracts as well as the making of payments. It is true that it was not the applicant who appointed subcontractors or approved interim payments, but he was one of the persons to be consulted before any decision was made by senior personnel or Barbican such as PW1 and PW2. He was in a position to give technical assistance by virtue of his on-site capacity and was influential, albeit not decisively, in those processes. Nor is the fact that the subcontracting and payment processes were found to be in order necessarily a complete answer to the charge. See HKSAR v Fung Hok-cheung, unreported, CACC 368/2007, dated 1 August 2008. Grounds 7 and 8 - Reversing onus on proof upon applicant and finding that payment by Wealth Success were not moonlighting fees (Charges 1 to 2) 60.This is what the learned judge said:
61.We do not agree that the learned judge had reversed the onus of proof at all. There was no evidence that the payments were moonlighting fees so far as any of these changes are concerned. Grounds 9 and 14(a) - Reliance on 1st Record of Interview in rejecting applicant’s case under Charges 1 to 2 62.The learned judge admitted the Record of Interview and she was entitled to rely on it. In respect of Charge 1 Grounds 10 and 11 - Similar facts evidence 63.In para. 20 above, we noted that the learned judge relied on the evidence relating to the 2nd charge as similar fact evidence in relation to the 1st charge. Evidence which has sufficient probative value (and not outweighed by its prejudicial value), is relevant and sufficiently similar may be relied on to prove another charge. 64.In paras. 61-63 of the Reasons, the learned judge dealt with the similar fact evidence. In para. 63, she enumerated the points of similarity. She held that the evidence on charge 2 was admissible to prove the payment by So Wing-shan to the applicant to $80,000. 65.With respect, we agree. But, of course, such evidence was not all the evidence available to the learned judge. There was the evidence of PW10 which we have referred to in para. 17 above. In the circumstances, the conviction on the 1st charge cannot be regarded as unsafe or unsatisfactory. Ground 12 - No evidence of payment of $80,000 66.We understand this to allege that the learned judge ought not to have accepted that payment had been made. We disagree. The learned judge was entitled so to find. Grounds 13 and 14(a) in relation to Charge 2 67.MR Grossman submitted that in convicting the applicant of the 2nd charge, the learned judge had taken into account the fact that the payment of $40,000 on 4 July 2006 was close in time to 2 payments received by Wealth Success from Barbican, namely, on 20 and 27 June 2006. He submitted that this is irrelevant and that it was never the prosecution’s case that Wealth Success would make payments to the applicant soon after it received money from Barbican. The timing of the payments was something that the learned judge was entitled to take into consideration. Grounds 15 to 19 (in respect of the Charge 3) 68.These grounds go to the credibility of PW5. It would be recalled that he was the sole proprietor of Fuk Shing and it was he who first informed the ICAC against the applicant. The learned judge was aware of the fact that his evidence had to be carefully scrutinized. The applicant submitted that no reasonable tribunal of facts could have reasonably relied on PW5’s evidence. We do not agree. The learned judge was aware that PW5 was far from being an ideal witness. In para. 91 she said:
In para. 93 she referred to “the many discrepancies, allegations and retractions”. She was keenly aware that PW5 bore a grudge against the applicant and that he was a witness:
But in the end, she was:
namely:
69.We are satisfied that the learned judge’s decision on the 3rd charge cannot be successfully challenged. Grounds 21 to 24 - Reversal of Onus upon Applicant and Finding that the 3 Payments from Workbase were not Moonlighting Fees 70.These grounds relates to charges 4, 5 and 6. We would not repeat what we have said previously in this judgment. There was simply no evidence that the payments were in respect of moonlighting work. Appeal again Sentence 71.Mr Grossman did not elaborate on the written submission which relied on the fact that the applicant was a first-offender and a man of good character, the financial hardship that would be suffered by his family and the deteriorating health of the applicant’s parent. Having regard to the seriousness of these offences and the amount of money involved, we do not believe that the total sentence of 33 months could be described as manifestly excessive. Conclusion 72.The application for leave to appeal against conviction and sentence are dismissed.
Mr Marco Li, SPP, of the Department of Justice, for the Respondent. Mr Clive Grossman, SC and Ms S. Y. Gekko Lan, instructed by Messrs V. Hau & Chow, for the Applicant. |
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