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CACC189/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 189 OF 2005
(ON APPEAL FROM DCCC NO. 786 OF 2004)
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BETWEEN
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HKSAR |
Respondent |
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and |
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LAW KAM FAI（羅錦輝） |
1st Applicant |
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LI KWAI MO （李桂武） |
2nd Applicant |
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Before : Hon Ma CJHC, Stuart-Moore V-P & Stock JA in Court
Date of Hearing: 28 March 2006
Date of Handing Down Judgment: 29 May 2006
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J U D G M E N T
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Hon Ma CJHC (giving the judgment of the Court) :
1. On 19 April 2005, the Applicants Law Kam-fai (the 1st Applicant) and Li Kwai-mo (the 2nd Applicant) were convicted by Deputy Judge Andrew Chan in the District Court of the following offences : -
(1) Charge 1 : Conspiracy to defraud (1st Applicant).
(2) Charge 2 : Conspiracy to pervert the course of public justice (both Applicants).
(3) Charge 4 : Conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap.210 and sections 159A and 159C of the Crimes Ordinance, Cap.200 (1st Applicant).
(4) Charge 6 : Removal of stones from unleased land, contrary to section 7(1) of the Land (Miscellaneous Provisions) Ordinance, Cap.28 (“the LMPO”)(1st Applicant).
(5) Charge 7 : Unauthorized excavations in unleased land, contrary to section 8(1) of the LMPO (1st Applicant).
At trial, the two Applicants were respectively the 1st and 3rd Defendants.
2. Each was sentenced on 3 May 2005 : -
(1) The 1st Applicant
He was sentenced to 15 months’ imprisonment for the 1st charge, 15 months’ imprisonment for the 2nd charge, 6 months’ imprisonment for the 4th charge and fines of $5,000 for each of the 6th and 7th charges. The Judge ordered 6 months of the sentence for Charge 1 to run consecutively to the term imposed for Charge 2 and also ordered that 6 months of Charge 4 would run consecutively to Charges 1 and 2, thus making a total of 27 months’ imprisonment. The Judge then reduced the sentence by a 3 months in view of 1st Applicant’s public service. In total therefore, the 1st Applicant was sentenced to 24 months’ imprisonment and fines totalling $10,000.
(2) The 2nd Applicant
The 2nd Applicant was sentenced to 11 months’ imprisonment for Charge 2. He had completed his sentence by the time the appeal was heard.
3. Both Applicants sought leave to appeal against conviction and sentence. However, on 16 July 2005, the 2nd Applicant abandoned the application for leave to appeal against sentence and it therefore stands dismissed. The 1st Applicant also abandoned his application for leave to appeal against sentence on 22 September 2005 but by an affirmation dated 24 February 2006 (filed on 18 March 2006), he sought to justify an application to this Court to treat the earlier abandonment as a nullity.
4. Before dealing with the applications for leave to appeal against conviction and the application to treat the 1st Applicant’s abandonment as a nullity, we set out the relevant facts.
Facts
5. The background to the relevant charges was the construction project for the Disneyland park in Hong Kong which commenced in 2003. The main contractor for the construction was China State Construction Engineering (Hong Kong) Limited (“CSCE”). The engineering consultant for the project was Maunsell Consultants (Asia) Limited (“Maunsell”).
6. One of the features of Hong Kong Disneyland was an artificial lake that was required for one of the park’s pleasure rides. The subcontractor for the construction of the lake was Artscapes (Far East) Limited (“Artscapes”). The contract for the construction was awarded to Artscapes on 22 August 2003, worth about $16 million.
7. According to the tender documents, the artificial lake required a large number of differently sized natural rocks – about 6,000 to 8,000 metric tonnes in all. Before it was formally awarded the contract, Artscapes looked for a supply of rocks and it set about doing this over the course of August through to October 2003.
8. The supplier of the rocks became one Wong Yat Wah (the 2nd Defendant at the trial) who said he was able to supply the rocks locally from the Tung Chung area. Various site visits were arranged to examine rocks that might be suitable for the project. The 2nd Defendant (according to the prosecution) claimed he was authorized by the Tung Chung Rural Committee (“the TCRC”) to excavate the Tung Chung River as some sort of flood prevention measure. The excavation would enable him to obtain rocks from the river or riverside. According to him he had voluntarily undertaken this task in order to ease the flooding problem of the river. A main part of prosecution case was that these claims were false : there was in fact no flooding problem in the Tung Chung River and accordingly the 2nd Defendant could not have been authorized by the TCRC to carry out excavations for this purpose.
9. Artscapes agreed to pay the 2nd Defendant $90 a tonne for the rocks inclusive of transportation to the Disney site. The supply of rocks began in about mid-October 2003. However, such was the extent of the excavation by bulldozers and mechanical digger at or near the Tung Chung River in order to obtain the rocks that this led to complaints being made to relevant Government departments. At the end of October, an environmental engineer with Maunsell (who was PW5 at trial ) filed a complaint. This led almost immediately to the involvement of a number of Government departments, among them the Agriculture, Fisheries and Conservation Department (“the AFCD”), the District Lands Office of the Lands Department (“the Lands Department”) and the Environmental Protection Department.
10. Before leaving the facts, we should just deal with a general point made by leading counsel for the 1st Applicant regarding the seriousness of the charges. It was said that at the heart of these charges was an extremely trivial matter, being the mere excavation and theft of some rocks that in all probability no one would ever want or have use for. There was scarcely concealed criticism of both Government and prosecution authorities in the interest taken in the present case. In our view, counsel’s submissions here are not relevant to any of the applications before this Court. Even if the point were relevant, the criticism made of the Government departments and prosecution authorities is unjustified. This was no mere trivial matter. The photographs we have seen of the Tung Chung River before and after excavation show a quite disturbing scene. It was, as was put by the Vice President during submissions, an act of environmental vandalism and all done for profit. In fairness, it ought to be pointed out that the Tung Chung River has been, since the intervention by Government authorities, restored to a satisfactory state. The Judge acknowledged all this and said it was a major factor in mitigation. Lastly, we would just add that the 800 metric tones of rock which had been excavated, were in the end not used for the Disney project.
The trial
11. The trial before Deputy Judge Chan lasted some 31 days. Thirty-three witnesses were called by the prosecution, comprising Government servants and civilian witnesses. None of the Defendants (including the two Applicants) elected to give evidence (apart from one of the Defendants giving evidence on the special issue) although the 1st Applicant called two witnesses : a district councillor and a retired civil servant. Both these witnesses dealt with the issue of flooding in the Tung Chung River.
12. We now deal with the issues arising in the appeal. It is convenient to deal with the charges in turn.
Charge 1 : Conspiracy to defraud (the 1st Applicant)
13. It was alleged in this charge that the 1st Applicant conspired with the 2nd Defendant to defraud the Hong Kong government by dishonestly and : -
“(i) falsely representing that there had been flooding problem in the Tung Chung River between the sections of Fong Yuen and Shek Lau Po;
(ii) falsely representing that multiple complaints had been lodged with the Government but the Government had not taken any action;
(iii) falsely representing that application had been made to the District Office for Local Public Works a number of times but were never successful;
(iv) falsely representing that Tung Chung Rural Committee had instructed WONG Yat-wah of Tung Po Engineering Company to carry out a flood prevention project in Tung Chung River;
(v) falsely representing that the dredging work carried out in the River was purely for the purpose of solving the flooding problem;
(vi) falsely representing that the rocks excavated from Tung Chung River would be used for constructing a breakwater near Hau Wong Temple;
thereby inducing the Government to delay taking action against their illegal excavation of rocks from Tung Chung River.”
14. As far as the 1st Applicant was concerned, this charge related to conversations between him and officers of the Lands Department. In the Reasons for Verdict, the Judge referred to the evidence of one Kwok Wah-tsai, who was a Senior Land Executive with the Lands Department in 2002-2003 (he was PW10). Kwok said that after receiving a letter from the AFCD on 31 October 2003, he and a number of colleagues went on 3 November 2003 to the Tung Chung River to carry out inspections. There, they met the 1st Applicant and the 2nd Defendant. The 1st Applicant explained to him that the TCRC had appointed or authorized a company called Tung Po Engineering Company (“Tung Po”), which was owned by the 2nd Defendant, to do work to ease the flooding problem in the Tung Chung River. The 1st Applicant said that this was for the benefit of the nearby villages as the alleged flooding problem had damaged land and crops. The 2nd...
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