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The Queen v Siu Hon Sum

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date03 November 1988
Year1988
Judgement NumberCACC133/1988
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000133/1988 THE QUEEN v. SIU HON SUM

CACC000133/1988
IN THE COURT OF APPEAL 1988, No. 133
(Criminal)

BETWEEN

THE QUEEN

AND

SIU HON SUM

_______

Coram: Si1ke, V.-P., Fuad, V.-P. & Hunter, J.A.

Dates of Hearing: 11 - 13 October 1988

Date of Judgment: 3 November 1988

______________

J U D G M E N T

______________

Silke, V.P.:

1. This is the judgment of the Court.

2. Siu Hon Sum – "The Applicant" - appeared for trial in the District Court before His Honour Judge Caird on a Charge Sheet which contained eight charges. Charges 1 and 2 alleged a corrupt giving contrary to section 3(2) of the Prevention of Corruption Ordinance, Cap.215 - "the Old Law". Charges 4, 5, 6, 7 and 9 alleged an offering of an advantage contrary to section 4(1)(a) of' the Prevention of Prevention of Bribery Ordinance, Cap.201 – "the New Law".

3. Charge 3, brought under the old Law, alleged a corrupt giving and related to one Thomas Crosbie- "the Crosbie charge".

4. The Applicant was convicted on the 1st, 2nd, 3rd, 4th, 5th and 6th charges. He was sentenced to a total period of two years and nine months' imprisonment and fined $350,000. He now seeks leave to appeal against those convictions and, if necessary, sentence.

5. The main thrust of the grounds of appeal argued before us by Mr. Du Cann, with him Mr. Hampton - neither of whom appeared at trial - was the conduct of the leading counsel who did. This, it is said, led to material irregularities sufficient to cause a miscarriage of justice. The allegations are contained in grounds A and B. Ground F, headed "Specific Grounds", depends in its sub-grounds 1 and 2 upon the result of the main granted A and B. Its sub-around 3 depends upon a further ground H entitled "Material Non-disclosure of Document". This last refers to the alleged non-disclosure by the prosecution of an initial immunity - "the Needham immunity" - granted to the witness Ling Koo Sheng whose evidence has relevance to charges 1, 2, 4, 5 and 6.

6. The rest of the grounds were abandoned.

7. The replacement of the Old by the New Law occurred on. 14th flay 1971.

History

8. In the 1960s, the Applicant was sole proprietor of a firm, On Lee Construction Company - "the company". The company had Grade C Public Works Department status and was concerned with the construction of Low, Cost Housing developments to Government specifications. The company not itself employ any construction workers, sub-contracting all parts of the development. It kept on site watchmen, a site foreman and some four other persons in a site office. The developments of particular concern to us were at Homantin, Kwai Hing and Lai King Estate. Apart from the third charge, which alleged a date between 1st November 1968 and 14th May 1971, but which in evidence narrowed down to Christmas of 1968, the other counts spanned a period between February 1970 and 31st December 1975 relative to the construction of Homantin and Lai King.

9. In 1985 complaints concerning the condition of Low Cost Housing blocks, distributed throughout Hong Kong attracted Widespread publicity.

10. In 1977 there was a general amnesty proclaimed in respect of corruption offences prior to that year. However, section 18A of the Independent Commission Against Corruption Ordinance, Cap 204 provides, inter alia, that the Commissioner could be directed to act in relation to matters prior to that date if they concerned an offence which the Governor considered sufficiently "heinous" to warrant action. Sub-section (2) of section 18A reads:

"A certificiate under the hand of the Chief Secretary stating the fact that the Governor considers an offence sufficiently heinous to warrant action shall he conclusive evidence of that fact."

11. Such a certificate was issued on 21st stating that the Governor, having been appraised of the facts related to the construction of Government Low Cost Housing and Resettlement Estates, and in particular to 26 named housing blocks, considered that those facts disclosed suspected of offences of corruption which were sufficiently heinous to warrant action by the Commissioner in accordance with his powers and duties under section 12 of the Prevention of Bribery Ordinance.

12. The Commissioner, in 1986, did investigate and take action. Those investigations, some of which took place in Canada, eventually led to the arrest of the Applicant on 1st April 1987. The made an appearance in Central Magistracy on 3rd November of that year and on 27th November, the matter having been transferred for hearing in the District Court, the Applicant pleaded not guilty to charges 1 to 6. The Charge Sheet upon which the Applicant was eventually tried is dated 11th February 1988. On that day an application was made in open Court to consolidate the two sets of charges, the 7th and 8th charges being added to that which became the final Charge Sheet. This was done without objection and the hearing date of 22nd February 1988, which had been already arranged was confirmed but, as the trial judge noted, subject to any application by leading counsel.

13. We would interpolate here that leading counsel whose conduct it is sought to impugne was referred to throughout the hearing as "leading counsel", his junior as "junior counsel" and the latter's pupil as the "pupil". The then "instructed solicitors" were also so designated. We shall continue to use those expressions throughout this judgment.

14. After his arrest, the Applicant retained the first solicitors firm. Later, that firm was replaced by a firm a member of which was the Applicant's daughter, Sylvia Siu, and she had conduct of the proceedings. In December 1987, there was yet another change and the instructed solicitors were retained. They received the case papers from either the Independent Commission Against Corruption - "the Commission" - or from "the daughter's firm. Junior counsel was retained and he first saw the Applicant about - January 1988. ''Leading counsel was retained and he first met the Applicant in conference - "the first conference" - on 13th February 1988. No written instructions were given to leading counsel. The original papers received by him consisted of the documents and statements of the case for the prosecution. There were no defence papers. No proof of evidence was taken form the Applicant until 11th February 1988 when a part proof was taken by junior counsel. We have seen a typed copy of that proof which relates mainly to the 7th and 8th charges and to matters general to the Applicant. It was not completed as the Applicant was tired and it was never further proceeded with. Either at the first conference or shortly thereafter leading counsel received that unfinished proof.

15. In short it was the Grown’s case that the Applicant had on numerous occasions, the charges were stated and accepted to be sample charges, paid Ling Koo Sheng the sum of $10,000, Ling had first been employed by Government in 1960 as a Clerk of Work II. In 1969, he was promoted to Clerk of Works I and to Chief Technical Officer. From the 1960s until the early 1970s, he was employed on Government Low Housing Estates. These included Homantin and Lai King. He was a self-confessed corrupt accomplice. He gape evidence under immunity. The immunity produced to the Court was granted to him on 10th July 1987. It was accepted that the Homantin development began on 1st October 1970 and had a certified completion date of 11th March 1973.

16. Homantin was not an estate specifically named among the 26 in the Chief Secretary's certificate.

17. It was Ling's evidence that the Applicant visited the Homantin site irregularly probably about once or twice Per month. He started to give him money after the commencement of the work. This occurred once in two or three months and on each occasion was in the sum of $10,000. Not surprisingly, Ling kept no record of these payments. Payments of this kind were common practice in other estates and among other contractors. Ling admitted that he had also been paid by the sub-contractors on the estates. These payments were made through his foki. He did not know the names of those sub-contractors but knew of their nature such as carpenter, concreter, drainage man and plasterer. On the Lai King site he was paid through Lee Park Ming on behalf of the Applicant.

18. At Homantin Ling said that the Applicant had spoken to him and asked him that, whenever he supervised work, he should just "make things easier". Ling understood this to mean that the Applicant wanted him to make things easier so the development work could proceed more rapidly. He stated, there being a target date for completion, that:

"If we would finish before target date I would have thought he would be able to make much more profit."

There were many ways by which delay could be avoided and he gave as examples, not intended to be exhaustive, speeding up the work by getting a subordinate to make an immediate inspection of reinforcement and then to report later to the structural engineer when he came to the site for a further inspection after inspection concreting could begin, holding up the inspection could cause delay; there could be the immediate inspection of drainage, again avoiding, delay.

19. A further element was the testing of concrete, this was done by concrete test cubes or cores which were sent to the P.W.D. technical laboratory for testing. When we come to the evidence of Lee Park Ming (PW3), the main witness on charges 7 and 8, upon which charges the Applicant was acquitted, we shall deal with this aspect in a little more detail for there was a straight forward conflict as to the methods wised as between Ling and Lee.

20. Delay could be avoided also in the necessary replacing of formwork - that is a form of casing into which the concrete was poured...

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