HKSAR v. Wong John

DCCC 694/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 694 OF 2011

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REASONS FOR SENTENCE

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1.The defendant was convicted after trial of 4 offences. Two offences of misconduct in public office contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance cap 221 and two offences of false accounting contrary to section 19(1)(a) of the Theft Ordinance cap 210.

2.In respect of both misconduct charges the defendant misconducted himself as a public officer namely as the Head of the Department of Surgery and the Person-in-charge of the Skills Development Centre (SDC), by using funds belonging to The University of Hong Kong (HKU) to pay a foreign domestic helper cum driver’s salary for about 5 years from 29 January 2002 to 30 January 2007 whom he had employed.  The total sum paid to the driver was in the sum of $731,347.00 (charge 1). 

3.The other charge of misconduct in public office (charge 4) is that the defendant failed to report to HKU that a staff of HKU, June Chan, had stolen not less than $2,672,000 of which he then repaid on her behalf to conceal her theft from HKU and allowed her to resign from HKU without investigation and/or discipline so that she would receive her full superannuation fund.  The purpose for not reporting the theft was to prevent the examination of bank accounts of which would have shown the defendant had improperly used HKU’s funds to pay his driver.

4.For the false accounting (charges 2 and 3) the defendant had dishonestly claimed overseas travel expenses had been incurred by a company called Unisurgical Limited of which the defendant was the sole shareholder and director when in fact no such travel expenses were incurred. As a result of the false claims in the accounts for the years 2006 and 2007 the company paid less tax of $121,764 for the year 2005/2006 and $2,550 for the year 2006/2007. 

5.The defendant is a 71 years old world renowned, recognised and highly respected surgeon of stellar reputation.  He was employed by HKU in the Department of Surgery for 34 years from 1975 until his retirement in 2009.  He was Professor Chair of Surgery for 30 of those years.  For 26 years from 1982 to 2008 he was the Head of the Department of Surgery, HKU. 

6.He is married and has a young son aged 12 years. 

7.I had found that the defendant bent the rules by not keeping the money received from course fees and other income of SDC with the HKU Finance office but personally opened up bank accounts for SDC, ATLS and the other related accounts controlled and operated by himself to create flexibilities in the administration of the SDC as he regarded the finance administration of HKU was too rigid. 

8.Evidently the defendant was travelling to meetings conducted away from Queen Mary Hospital where he was based in the course of his duties almost daily.  There was much red-tape and bureaucracy in booking a HKU car and driver to drive him or his staff to his or their meetings. During his tenure the defendant requested HKU to provide the Department of Surgery with a car, this was granted.  However the defendant’s request for HKU to hire his domestic helper as a driver (the helper in charge 1) was refused. 

9.Despite the clear refusal of HKU to pay for his domestic helper as a driver, the defendant’s commission of this offence arises from his complete contempt of HKU’s refusal and paid his driver regardless with HKU funds kept by him in the bank accounts of SDC and ATLS. 

10.The defendant’s misconduct in charge 1 arose from trickery practiced over a number of years.  It was not of a large scale when considered over 5 years, the total amount was of $731,347.  Given the defendant’s position the court expects the highest standard of integrity.  Regrettably the defendant’s conduct was a flagrant breach of that integrity. 

11.While this might at first glance seem greedy and committed with disdain, I do not accept that the defendant was driven by greed but consider it to be an action committed by the defendant’s keenness in himself and the department’s entitlement to a driver to carry out his or their duties.  I bear in mind however there was a bonus with his arrangement in that this was his own domestic helper who would also be used by his family. 

12.The defendant was able to use funds from SDC as he had control over the funds received by SDC and ATLS.  Unfortunately and surprisingly HKU did not properly control or manage the funds of SDC it allowed SDC to operate without going through the Finance Office.  SDC and the related bank accounts was managed and controlled by the defendant from its establishment in 1996 until about 2008 when the defendant returned to HKU the funds in the bank accounts of about $3 million for their control and further management.

13.As can be gleaned from the facts the defendant had worked with HKU and the public sector for the whole of his career in Hong Kong.   From the various letters written to the court it can be seen the defendant is not a greedy person.  The defendant had spurned the allures of repeated invitations to join very lucrative private practice in order to achieve his ideal to give his whole life to the less fortunate public patients in Hong Kong, to teaching, research and service to the public.  Contrarily the defendant has been generous as he has donated many millions of dollars to people in need and has helped raise over $150 million for education and research not only for the Department of Surgery but for the whole medical school of HKU. 

14.In charge 4 the failure to report the theft to HKU by its employee June Chan was significant because the defendant was head of the department.  He was in charge of the department’s administration.  An employee had stolen a considerable amount of HKU’s money to which the defendant had advanced to the employee a large part of the stolen sums as reimbursement to the account.  As a result of his failure to report June Chan’s theft HKU were kept in the dark and eventually contrary to their regulations HKU paid out funds to June Chan from public funds which June Chan would otherwise not have been entitled to.  Moreover there was an added motive of trying to avoid investigation into the defendant’s own misuse of SDC’s and ATLS funds. 

15.The loss caused to HKU in paying June Chan’s full superannuation was about $400,000.  The loss to HKU by June Chan’s theft was in the end about $300,000 (the amount stolen of $3.06 million less the amount repaid $2.67 million).

16.As a result of money paid from Unisurgical and June Chan towards the reimbursement of the theft, the defendant is in possession and in control of about $1.8 million of funds not belonging to him.  The defendant has undertaken through his counsel Mr Graham Harris SC that he will return all monies due and owing of about $1.8 million to Unisurgical.  Part of that money ($1.8 million) in the amount of $1.6 million is in K&O’s account and will also be returned to Unisurgical. 

17.Although the defendant did not receive any gain from his misconduct in charge 4 it was a serious breach of his duties as Head of the Department which caused HKU to suffer financial loss of public sums in the amount of $400,000. 

18.Misconduct in public office is a serious offence.  There is no sentencing tariff.  Each case depends on the individual facts of the case.  The norm is an immediate custodial sentence. 

19.Charges 2 and 3 were tax evasion offences to which a fraud was committed on the Inland Revenue Department by the false claims over a short period of two years. Unisurgical Limited was a welfare fund set up by the defendant to help support staff who were in need.  The fund provided financial assistance to the defendant’s fellow colleagues.  If the funds, as intended, were all used for the financial assistance of his colleagues the defendant did not himself stand to gain personally from the fraud as the funds were to be used for charitable purposes.  As can be seen from the facts of this case the defendant was however able to use the funds in Unisurgical’s account for his personal use as he had used funds from Unisurgical’s account to reimburse the funds stolen by June Chan from SDC.  The amount outstanding to Unisurgical’s account is in the amount of $1.8 million (see paragraph 16 above).

20.The overall criminality of this case and these offences must be considered.  Consideration must also be given to the personal background of the defendant and the restitution made. 

21.The defendant is a man of exemplary and exceptional positive good character.  Throughout his professional life the defendant has been held in high regard and thought of in great esteem by colleagues, friends, students and patients.  They have all benefitted from his teaching, guidance and wisdom. 

22.The defendant is a highly praised surgeon and is an academic of great international acclaim.  He was a pioneer with an international reputation in the advancement of medical expertise in surgery.  The SDC was his brainchild.  He recognized an urgent need to educate potential and current surgeons in the latest techniques, including bringing to Hong Kong the minimally now often used keyhole surgery.  He had a tremendous drive and determination to advance patient care quality to world class standards. 

23.His positive good character and high regard in the community is enlarged upon by glowing tributes from several eminent top-rated doctors of the world, fellow colleagues, members of the community and patients through the many letters received and the character references submitted, to which I have placed weight.

24.The defendant through his valuable public service, work and expertise has not only benefitted the medical profession in Hong Kong but to the community at large.  His good nature and public service is unparalleled to the extreme.

25.No doubt that the medical profession, his friends and the public were shocked and unbelieving when knowledge of these offences and convictions became public. 

26.As a result of the convictions the defendant’s reputation has now been greatly affected.  This is a colossal fall from grace.  His good name and reputation has been tarnished. 

27.The defendant was arrested in January 2009 it was not until March 2012 that the whole matter was concluded upon his conviction.  The defendant was charged with these offences some 2 ½ years after his arrest.  The defence accept that the prosecution are not to blame for the delay but say that through no fault of the defendant’s he has suffered anguish and anxiety for all these years while waiting for the matter to be concluded. As result of the defendant being well known this case received an immense amount of high profile publicity which effect has caused even greater stress to the defendant, a man with such a distinguished personal background. 

28.Due recognition must be given to these factors when considering the appropriate sentence. 

29.I have reflected on the mitigation that I have heard, read and rehearsed.  The defendant is a man of advanced age of 71.  It has not been until relatively late in life that the defendant who has been an extremely hard working up-right revered and family man that he committed these criminal offences.  Until then he has made a more than positive contribution to society.  He continues to contribute to society. 

30.He has made an early and full restitution of the funds to HKU in respect of charge 1 and to the IRD in respect of charges 2 & 3.  Almost all sums in respect of charge 1 were repaid before his arrest by the ICAC.  The remainder was paid before the trial.  He has made payment into court today to compensate HKU for the loss of public funds over paid to June Chan in the sum of $400,000 in charge 4.  The late payment into court is, I accept, through no fault of the defendant’s but due to the oversight of his legal advisers. 

31.I have given anxious consideration to the appropriate sentence, bearing in mind the offences are of a serious nature.

32.A balance has to be maintained as between the appearance of leniency to an individual and the effect a prison sentence may have on a defendant of hitherto unblemished character and who is of eminent standing in the community. 

33.I refer to Woodhouse P in R v Burton [1982] 1 NZLR 602 where he indicated that community service is intended to be a :-

“very real and effective alternative to imprisonment. The impact of serving such a non-custodial sentence can be severe…..(it) ought not to be regarded by the public as a minor or insignificant reaction by the courts”

34.CSO is not a soft option it is a recognized alternative to immediate imprisonment. 

35.In light of the defendant’s exemplary positive good character, his invaluable contribution to the society, the overall criminality of the offences, restitution made by the defendant, his advanced age, the delay from the time of arrest to conclusion of the matter I consider that these are exceptional circumstances which justify a sentence of CSO in lieu of imprisonment. 

36.In adopting the words of Lord Woolf CJ in R v Kefford [2002] 2 Cr App R (s) 495

“Having to perform a form of community punishment can be a very salutary way of making it clear that crime does not pay……In the appropriate cases, it can be better if an offender repays his debt to society by performing some useful task for the public then spending a short time in prison.”

37.In the circumstances the defendant is sentenced to the maximum 240 hours of Community Service for all charges.  Those sentences are to run concurrent to each other.

38.A compensation order in the sum of $478,985.46 be made and be paid to the University of Hong Kong by the defendant from the money paid into court today. 

Mr. WONG Man-kit, SC, Counsel on fiat leading Miss Claudia Ng,

Public Prosecutor, for Prosecution

Mr. John Reading, SC, and Graham Harris, SC leading Mr. Kevin Li instructed by Messrs Robertsons for the Accused