區域法院（刑事）District Judge Ada Yim6/6/2024[2024] HKDC 929
DCCC1065/2021
A A
B B
DCCC1065/2021
C [2024] HKDC 929 C
D D
E IN THE DISTRICT COURT OF THE E
HONG KONG SPECIAL ADMINISTRATIVE REGION
F F
CRIMINAL CASE NO 1065 OF 2021
G G
---------------------
H H
HKSAR
I v I
LEUNG WING KEUNG ALBERT (D1)
J J
---------------------
K K
Before: District Judge Ada Yim in Court
L L
Date: 7 June 2024
M Present: Mr. Sean Wai Sum Eddie, Counsel on Fiat, for HKSAR M
Mr. YEUNG Yat Hung Alan, Public Prosecutor, for HKSAR
N N
O
Mr. CHAN Derek C.L., Senior Counsel, leading Ms. CHAN O
st
Ferrida, instructed by Oldham, Li & Nie, for the 1 defendant
P P
Offence: [2] Fraud
Q Q
R R
------------------------------------------
S S
REASONS FOR SENTENCE
T ------------------------------------------ T
U U
V V
A A
B B
C 1. The defendant was convicted after trial on Fraud, contrary to Section C
16A of the Theft Ordinance, Cap.210.
D D
E E
FACTS
F F
2. Jacobs China Limited (JCL) entered into an agreement with the Civil
G G
Engineering and Development Department (CEDD) to provide
H construction material testing services at Siu Ho Wan Laboratory (SHW H
Lab) for the Hong Kong-Zhuhai-Macao Bridge Project and other public
I I
works.
J J
K 3. The defendant was the Director of Operations of JCL in charge of K
JCL’s daily operations in Hong Kong, and a Divisional Director with
L L
expertise in structural engineering. On 26 July 2016 officer of CEDD
M discovered the time manipulation irregularity happened at SHW Lab. M
CEDD then requested JCL to investigate into the matter.
N N
O O
4. The defendant was not responsible for SHW Lab initially, he only got
P P
involved in the investigation since 29 July 2016, thereafter he also
Q represented JCL on the matter to have meeting and promised to provide Q
full findings to CEDD. By 11 August 2016, he had knowledge of the Steel
R R
Bar Issue/Simulated Tests Irregularity. JCL discovered the Simulated
S Tests Irregularity during the investigation, but the Senior Management S
decided not to disclose the matter to CEDD after seeking legal advice from
T T
both in-house counsel and external counsel from Pinsent Masons.
U U
V V
A A
B B
5. The defendant was involved in some of the exchanges between the
C Senior Management and the lawyers. He knew the Senior Management, C
according to the ordinary standards of reasonable and honest people, was
D D
dishonest when decided to conceal the Simulated Tests Irregularity from
E CEDD. E
F F
6. The defendant was under a duty to disclose the Simulated Tests
G G
Irregularity to CEDD but he followed the Senior Management decision did
H not disclose the matter to CEDD. He knew D2 did not have knowledge of H
the matter, the reports signed by D2 and submitted to CEDD was edited
I I
and had all reference to the Simulated Tests Irregularity removed. He knew
J J
any right mind person would consider anyone under a duty to disclose the
K
Simulated Tests Irregularity to CEDD but did not, was dishonest. K
L L
7. The defendant by deceit with intent to defraud CEDD, deliberately
M M
concealed the Simulated Tests Irregularity. His deliberate omission caused
N the officers of CEDD to believe the only problem was the Time N
Manipulation Irregularity when he knew that was not so, thereby induced
O O
staff members of CEDD to release payment in the sum of $1,971,514.96 to
P JCL, which resulted in benefit to the said JCL and prejudice to the CEDD. P
Q Q
R 8. Without knowledge of the Simulated Tests Irregularity, CEDD had R
failed to discharge its function to provide reliable, efficient and effective
S S
construction materials compliance testing services to public works projects,
T in particular, the Hong Kong-Zhuhai-Macao Bridge Project responsible by T
the Highway Department.
U U
V V
A A
B B
C 9. Shortly after the final payment, ICAC informed CEDD of the C
Simulated Tests Irregularity of SHW Lab, but the scope of the malpractice
D D
was unknown. CEDD carried out a series of follow-up actions, to ascertain
E the scope of the matter. Highway Department being the client, and HKAS E
being the accreditation organization were also informed.
F F
G G
10. Following the discovery of Simulated Tests Irregularity,
H CEDD took the following remedial actions: H
(1) Undertaking reviews of data and reports of 399,948 concrete
I I
cube compression tests conducted by SHW Lab between
J January 2013 and March 2017 to identify and assess J
abnormalities of the test results;
K K
L L
(2) Conducting non-destructive testing (rebound hammer tests)
M at 221 locations in the Bridge project; and M
N N
(3) Carrying out 810 number of concrete cubes compression
O tests and 545 number of concrete core compression tests to O
assist the Highways Department to investigate the quality of
P P
concrete used in the Bridge project.
Q Q
R 11. The direct manpower spent on the above remedial actions are R
estimated to be 225 man-days, which correspond to a staff cost of about
S S
$700,000 incurred by CEDD. Costs of remedial actions undertaken by
T other Government Departments are not included in the said estimated sum. T
U U
V V
A A
B B
MITIGATION
C C
D 12. The defendant aged 67, clear record, married with two D
daughters; a family of four depends on him financially. His mother-in-law
E E
aged 90 requires care and attention from him and his wife. He has a strong
F professional background and regarded by his family, former superiors, F
colleagues and friends to be a person with positive good character, friendly
G G
and helpful, open and sincere in sharing his knowledge and experience, and
H acknowledge his contribution to the Engineering Industry. In view of the H
costs of remedial actions, the defendant offers to make reimbursement.
I I
J 13. The defendant had been in the employment of JCL (or its J
predecessors) since his graduation from University. He left JCL in June
K K
2020. In September 2020 he joined the Atkins Group. Since May 2023,
L L
he has been working part-time at a consultancy firm as an Executive
M
Director, earning a monthly salary of $150,000. He has been actively M
involved in various pro bono activities related to mediation, accreditation
N N
and arbitration. Prior to the present proceedings, he also had two academic
O appointments with two local universities. O
P P
14. The defendant is suffering from Major Depressive Disorder,
Q triggered by the first arrest in 2017 and compounded by the series of health Q
problems he had since 2020. Outpatient psychiatric treatment is
R R
recommended.
S S
T 15. The defendant’s health has significantly deteriorated since T
2020. In July 2020 he underwent a surgical operation for prostate cancer,
U U
in April 2023 had a right total hip replacement, in January 2024 an
V V
A A
B B
operation for posterior neck abscess, the first two conditions require
C regular monitoring. C
D D
16. Apart from the defendant’s personal background, clear record
E E
and positive good character, the defence also invites me to take into
F account that he received no personal benefit, did not in any way condoned F
the behavior of the technicians, the investigation was properly and fully
G G
documented, the receipt of wrong legal advice, no direct monetary loss
H arose from the present fraud, the safety of the bridge was not compromised H
in any way, and no risk of reoffending.
I I
J J
17. Further, it is submitted that the length of the delay in the
K present case is another exceptional circumstance. The defendant was first K
arrested on 17 May 2017 and he was charged after a period of 4.5 years on
L L
5 November 2021. In the meantime, the defendant has moved on with his
M family. M
N N
18. Finally, it is submitted that the cumulative effect of the
O O
mitigating factors in the defendant’s case warrants a lower starting point
P for any term of imprisonment, and further constitutes exceptional P
circumstances to be considered in favour of suspending the sentence. A
Q Q
suspended sentence would reflect the gravity of the offence and culpability
R of the defendant, while acknowledging the unique set of circumstances R
S
present in this case, including the exemplary record of the defendant, the S
contribution of wrong legal advice, and the lengthy delay.
T T
U U
V V
A A
B B
SENTENCE
C C
D 19. Section 16A(1) of the Ordinance provided that a person D
committed the offence of fraud is liable on conviction upon indictment to
E E
imprisonment for 14 years.
F F
G 20. Both parties refer to HKSAR v Chow Che Wai CACC G
545/2001, the applicant together with other 2 defendants were charged with
H H
three conspiracies to defraud the Housing Department by dishonestly
I submitting false and misleading documents to the Housing Department I
purporting to satisfy the Department that all the failed reinforcement steel
J J
bars had been removed from the construction site and had not been used in
K the construction. The applicant was convicted of two charges after trial. K
On appeal, the Court of Appeal uphold the 2.5 year starting point but
L L
reduced the overall sentence of 3.5 years’ imprisonment to 3 years.
M M
N 21. The defence submits that the defendant’s culpability is N
significantly less than the applicant in Chow Che Wai. Not only was the
O O
defendant not in charge of the SHW Lab, he was also not in charge of the
P investigation into the technicians’ misconduct, and he was not the person P
who made the decision to conceal the Simulated Test Irregularity from the
Q Q
CEDD. Further, unlike Chow Che Wai, there were no falsification of any
R R
documentation. Full records documenting the investigation, including the
S
Simulated Test Irregularity, were properly retained. S
T T
22. It is true that full records documenting the investigation were
U U
retained, yet these were not disclosed to CEDD. The defendant knew the
V V
A A
B B
reports submitted to CEDD were extensively edited with all reference to
C Simulated Tests Irregularity removed; those are plainly misleading reports. C
The defendant knew the Simulated Tests Irregularity was not an isolated
D D
incident, but a failure of the quality management system, and this has
E happened for years. He knew the cement was to be used in the Bridge E
Project.
F F
G G
23. I recognize that the JCL internal investigation started off in
H
accordance with the Code of Conduct, the defendant did not obtain any H
personal benefit, he was not involved or in any way condoned the behavior
I I
of the technicians, and the decision on non-disclosure first came from the
J Senior Management after seeking legal advice, and the safety of the Bridge J
was not comprised. Otherwise, I will adopt a much higher starting point.
K K
Yet being the Director of Operations of JCL and with his experience in the
L industry, he knew the Senior Management was acting dishonestly, and it L
was his own decision when he deliberately concealed the matter from
M M
CEDD.
N N
O
24. The substance of the legal advice was unknown. As per my O
judgement at para. 159, “legal advice is only lawyer’s opinion on a
P P
particular matter; whatever the advice given, it could not change the nature
Q of the subject matter. The subject matter concerned was “the Steel Bar Q
Issue, the Simulated Tests Irregularity”. Once D1 knew and agreed it was
R R
“an error, omission and shortcoming” stipulated in Clause 22. According
S to Clause 22, he on behalf JCL upon discovery of the Simulated Tests S
Irregularity, being “an error and shortcoming”, should report to CEDD.”
T T
U U
V V
A A
B B
25. The defendant was under a duty to disclose the Simulated
C Tests Irregularity upon discovery, he had knowledge of the matter by 11 C
August 2016 but he deliberately concealed the matter. While it was the
D D
fraudulent acts of the technicians that directly caused the monetary loss,
E yet should the defendant disclose the matter to CEDD upon discovery in E
August/September 2016, the subsequent remedial actions could be carried
F F
out much earlier and would only require to verify the tests done up to
G August/September 2016, instead of up to March 2017. G
H H
26. The significance of this case is upon the damage caused to the
I public confidence, in HKSAR v Poon Ka Wai , CACC 345/2018, the I
applicant was one of the technicians of SHW Lab, in refusing his leave to
J J
appeal against sentence, regarding the gravity of the offence committed by
K the applicant, the single judge of the Court of Appeal put it as follows: K
L “ 1) It undermined public confidence in the tests concerned and L
the accreditation system;
M
2) It seriously affected public confidence in the quality of the M
Bridge, caused panic among the public and violated public
interest, and the government had to take remedial measures
N N
to restore public confidence;
3) It created an extremely negative impact on the reputation of
O the works carried out in Hong Kong, Zhuhai, Macau and O
even in the whole Greater China Region;
P 4) In an attempt to remedy the situation, the government had P
to spend an extra $58 million in public funds to conduct
Q further tests in order to allay public concern; and Q
5) It was an on-going event over a long period of time
involving collective actions and thus inevitably caused a
R R
delay in the works and resulted in incidental financial
losses.”
S S
T
27. The integrity of the Engineering & Construction Industry in T
Hong Kong is of utmost importance. Test reports containing false result
U U
(obtained via simulated tests) had been presented to CEDD as valid
V V
A A
B B
HOKLAS reports over the years. But for the ICAC investigation, the
C Simulated Tests Irregularity would not be unveiled. The first three points C
mentioned in Poon Ka Wai are directly applicable in the present case.
D D
E 28. Having consider the scale of the Simulated Tests Irregularity, E
the damage caused to the public confidence, the negative impact on the
F F
reputation of Hong Kong Engineering & Construction Industry in the
G G
whole Greater China Region, and the costs on the remedial work in
H
particular that related to the non-disclosure upon discovery. I consider the H
appropriate starting point is one of 3 years imprisonment.
I I
J DELAY J
K K
29. Delay in prosecution could amount to a mitigating factor.
L Both parties refer to HKSAR v Chiu Chi Wing CACC 243/2012, the L
relevant remark of the Court of Appeal is at para.37:
M M
“The seven factors identified by Buss JA, which were stated not to be
N N
intended to be exhaustive or inflexible, were:
O “ First, delay is not, of itself, a mitigating factor. O
Secondly, delay will not ordinarily be a mitigating factor if
P P
it has been caused by difficulties in detecting, investigating
Q or proving the offences committed by the offender, and the Q
period of the delay is reasonable in the circumstances.
R R
Thirdly, delay will not ordinarily be a mitigating factor if it
S is caused by the offender’s obstruction or lack of co- S
operation with the State, prosecuting authorities or
T T
investigatory bodies, but the offender’s reliance on his or
U U
V V
A A
B B
her legal rights is not obstruction or lack of co-operation
C for this purpose. C
Fourthly, delay will not ordinarily be a mitigating factor if
D D
it results from the normal operation of the criminal justice
E system, including delay as a result of the offender or a co- E
offender exercising his or her rights; for example,
F F
interlocutory appeals and other interlocutory processes.
G Fifthly, delay may be conducive to the emergence of G
mitigating factors; for example, if, during the period of
H H
delay, the offender has made progress towards
I rehabilitation or other circumstances favourable to him or I
her have emerged.
J J
Sixthly, delay (not being delay of the kind described in the
K second, third and fourth guiding principles) will ordinarily K
be a mitigating factor if:
L L
(a) The delay has resulted in significant stress for the
offender or left him or her, to a significant degree, in
M M
‘uncertain suspense’; or
N (b) During the period of delay the offender has adopted a N
reasonable expectation that he or she would not be
O
charged, or a pending prosecution would not proceed, O
and the offender has ordered his or her affairs on the
faith of that expectation.
P P
Seventhly, delay caused by dilatory or neglectful conduct
Q Q
by the State, prosecuting authorities or investigatory bodies
R may result in a discount of the sentence that would R
otherwise be imposed on the offender, if the court thinks it
S S
an appropriate means of marking its disapproval of the
T conduct in question.” T
U U
V V
A A
B B
30. The prosecution has prepared the chronology of events for my
C consideration. The defendant was arrested on 16 May 2017 and released C
on ICAC bail on the next day. Thereafter time was spent on the seizures
D D
subject to LPP, further investigation and legal advice. The defendant was
E charged on 5 November 2021. Taking into account of the volume of the E
seizures, the issue of LPP, the number of overseas witnesses, I consider the
F F
time spent was reasonable.
G G
H
31. The defendant’s case was subsequently brought to West H
Kowloon Magistrates’ Court for transfer on 26 November 2021. The
I I
defendant appeared at District Court on 14 December 2021. Thereafter the
J defence made several applications for adjournment. Eventually plea was J
taken on 18 October 2022, dates in 2023 were given for the defendant’s
K K
stay application, PTRs and trial. All were within the normal operation of
L the criminal justice system during the period of COVID-19 pandemic. L
Thus, the delay alleged is not of itself a mitigating factor available to the
M M
defendant.
N N
O
OTHER MITIGATING FACTORS O
P P
32. The defendant was Director of Operation of JCL at time of the
Q offence, he secured another employment in September 2020 after he left Q
JCL in June 2020, and he worked part-time prior to his remand. Because
R R
of the nature of the offence, the termination of his academic appointments
S is inevitable. The usual retirement age in Hong Kong is around 65, the S
defendant is currently 67, though the family of four depends on him
T T
financially, it probably is the time for the family to prepare, if they have
U U
V V
A A
B B
not done so, for the defendant’s retirement. The two daughters are old
C enough to offer assistance in the care of their grandmother. C
D D
33. The defendant is convicted after trial. Having consider the
E E
defendant’s previous good character and contribution in academic field and
F the Engineering Industry as shown in the mitigation letters, the various pro F
bono activities he participated, his health condition since his arrest in 2017,
G G
the stress he encountered after his arrest and pending trial which
H contributes to his Major Depressive Disorder condition, I allow him a H
global reduction of 6 months. I do not consider there to be any further
I I
mitigating factor that calls for further reduction. That being the case,
J Section 109B of the Criminal Procedure Ordinance is not applicable in his J
case.
K K
L L
34. The defendant had two operations in respect of his prostate
M cancer and total hip replacement which require monitoring, and has Major M
Depressive Disorder. I direct the Correctional Services Department to
N N
provide him with the necessary medical care and psychiatric treatment.
O With the defendant’s consent, copy of his psychiatric report provided to O
CSD for reference.
P P
Q Q
ORDER
R The defendant is sentenced to 30 months’ imprisonment for Charge Two. R
S S
T T
( Ada Yim )
U District Judge U
V V
A A
B B
DCCC1065/2021
C [2024] HKDC 929 C
D D
E IN THE DISTRICT COURT OF THE E
HONG KONG SPECIAL ADMINISTRATIVE REGION
F F
CRIMINAL CASE NO 1065 OF 2021
G G
---------------------
H H
HKSAR
I v I
LEUNG WING KEUNG ALBERT (D1)
J J
---------------------
K K
Before: District Judge Ada Yim in Court
L L
Date: 7 June 2024
M Present: Mr. Sean Wai Sum Eddie, Counsel on Fiat, for HKSAR M
Mr. YEUNG Yat Hung Alan, Public Prosecutor, for HKSAR
N N
O
Mr. CHAN Derek C.L., Senior Counsel, leading Ms. CHAN O
st
Ferrida, instructed by Oldham, Li & Nie, for the 1 defendant
P P
Offence: [2] Fraud
Q Q
R R
------------------------------------------
S S
REASONS FOR SENTENCE
T ------------------------------------------ T
U U
V V
A A
B B
C 1. The defendant was convicted after trial on Fraud, contrary to Section C
16A of the Theft Ordinance, Cap.210.
D D
E E
FACTS
F F
2. Jacobs China Limited (JCL) entered into an agreement with the Civil
G G
Engineering and Development Department (CEDD) to provide
H construction material testing services at Siu Ho Wan Laboratory (SHW H
Lab) for the Hong Kong-Zhuhai-Macao Bridge Project and other public
I I
works.
J J
K 3. The defendant was the Director of Operations of JCL in charge of K
JCL’s daily operations in Hong Kong, and a Divisional Director with
L L
expertise in structural engineering. On 26 July 2016 officer of CEDD
M discovered the time manipulation irregularity happened at SHW Lab. M
CEDD then requested JCL to investigate into the matter.
N N
O O
4. The defendant was not responsible for SHW Lab initially, he only got
P P
involved in the investigation since 29 July 2016, thereafter he also
Q represented JCL on the matter to have meeting and promised to provide Q
full findings to CEDD. By 11 August 2016, he had knowledge of the Steel
R R
Bar Issue/Simulated Tests Irregularity. JCL discovered the Simulated
S Tests Irregularity during the investigation, but the Senior Management S
decided not to disclose the matter to CEDD after seeking legal advice from
T T
both in-house counsel and external counsel from Pinsent Masons.
U U
V V
A A
B B
5. The defendant was involved in some of the exchanges between the
C Senior Management and the lawyers. He knew the Senior Management, C
according to the ordinary standards of reasonable and honest people, was
D D
dishonest when decided to conceal the Simulated Tests Irregularity from
E CEDD. E
F F
6. The defendant was under a duty to disclose the Simulated Tests
G G
Irregularity to CEDD but he followed the Senior Management decision did
H not disclose the matter to CEDD. He knew D2 did not have knowledge of H
the matter, the reports signed by D2 and submitted to CEDD was edited
I I
and had all reference to the Simulated Tests Irregularity removed. He knew
J J
any right mind person would consider anyone under a duty to disclose the
K
Simulated Tests Irregularity to CEDD but did not, was dishonest. K
L L
7. The defendant by deceit with intent to defraud CEDD, deliberately
M M
concealed the Simulated Tests Irregularity. His deliberate omission caused
N the officers of CEDD to believe the only problem was the Time N
Manipulation Irregularity when he knew that was not so, thereby induced
O O
staff members of CEDD to release payment in the sum of $1,971,514.96 to
P JCL, which resulted in benefit to the said JCL and prejudice to the CEDD. P
Q Q
R 8. Without knowledge of the Simulated Tests Irregularity, CEDD had R
failed to discharge its function to provide reliable, efficient and effective
S S
construction materials compliance testing services to public works projects,
T in particular, the Hong Kong-Zhuhai-Macao Bridge Project responsible by T
the Highway Department.
U U
V V
A A
B B
C 9. Shortly after the final payment, ICAC informed CEDD of the C
Simulated Tests Irregularity of SHW Lab, but the scope of the malpractice
D D
was unknown. CEDD carried out a series of follow-up actions, to ascertain
E the scope of the matter. Highway Department being the client, and HKAS E
being the accreditation organization were also informed.
F F
G G
10. Following the discovery of Simulated Tests Irregularity,
H CEDD took the following remedial actions: H
(1) Undertaking reviews of data and reports of 399,948 concrete
I I
cube compression tests conducted by SHW Lab between
J January 2013 and March 2017 to identify and assess J
abnormalities of the test results;
K K
L L
(2) Conducting non-destructive testing (rebound hammer tests)
M at 221 locations in the Bridge project; and M
N N
(3) Carrying out 810 number of concrete cubes compression
O tests and 545 number of concrete core compression tests to O
assist the Highways Department to investigate the quality of
P P
concrete used in the Bridge project.
Q Q
R 11. The direct manpower spent on the above remedial actions are R
estimated to be 225 man-days, which correspond to a staff cost of about
S S
$700,000 incurred by CEDD. Costs of remedial actions undertaken by
T other Government Departments are not included in the said estimated sum. T
U U
V V
A A
B B
MITIGATION
C C
D 12. The defendant aged 67, clear record, married with two D
daughters; a family of four depends on him financially. His mother-in-law
E E
aged 90 requires care and attention from him and his wife. He has a strong
F professional background and regarded by his family, former superiors, F
colleagues and friends to be a person with positive good character, friendly
G G
and helpful, open and sincere in sharing his knowledge and experience, and
H acknowledge his contribution to the Engineering Industry. In view of the H
costs of remedial actions, the defendant offers to make reimbursement.
I I
J 13. The defendant had been in the employment of JCL (or its J
predecessors) since his graduation from University. He left JCL in June
K K
2020. In September 2020 he joined the Atkins Group. Since May 2023,
L L
he has been working part-time at a consultancy firm as an Executive
M
Director, earning a monthly salary of $150,000. He has been actively M
involved in various pro bono activities related to mediation, accreditation
N N
and arbitration. Prior to the present proceedings, he also had two academic
O appointments with two local universities. O
P P
14. The defendant is suffering from Major Depressive Disorder,
Q triggered by the first arrest in 2017 and compounded by the series of health Q
problems he had since 2020. Outpatient psychiatric treatment is
R R
recommended.
S S
T 15. The defendant’s health has significantly deteriorated since T
2020. In July 2020 he underwent a surgical operation for prostate cancer,
U U
in April 2023 had a right total hip replacement, in January 2024 an
V V
A A
B B
operation for posterior neck abscess, the first two conditions require
C regular monitoring. C
D D
16. Apart from the defendant’s personal background, clear record
E E
and positive good character, the defence also invites me to take into
F account that he received no personal benefit, did not in any way condoned F
the behavior of the technicians, the investigation was properly and fully
G G
documented, the receipt of wrong legal advice, no direct monetary loss
H arose from the present fraud, the safety of the bridge was not compromised H
in any way, and no risk of reoffending.
I I
J J
17. Further, it is submitted that the length of the delay in the
K present case is another exceptional circumstance. The defendant was first K
arrested on 17 May 2017 and he was charged after a period of 4.5 years on
L L
5 November 2021. In the meantime, the defendant has moved on with his
M family. M
N N
18. Finally, it is submitted that the cumulative effect of the
O O
mitigating factors in the defendant’s case warrants a lower starting point
P for any term of imprisonment, and further constitutes exceptional P
circumstances to be considered in favour of suspending the sentence. A
Q Q
suspended sentence would reflect the gravity of the offence and culpability
R of the defendant, while acknowledging the unique set of circumstances R
S
present in this case, including the exemplary record of the defendant, the S
contribution of wrong legal advice, and the lengthy delay.
T T
U U
V V
A A
B B
SENTENCE
C C
D 19. Section 16A(1) of the Ordinance provided that a person D
committed the offence of fraud is liable on conviction upon indictment to
E E
imprisonment for 14 years.
F F
G 20. Both parties refer to HKSAR v Chow Che Wai CACC G
545/2001, the applicant together with other 2 defendants were charged with
H H
three conspiracies to defraud the Housing Department by dishonestly
I submitting false and misleading documents to the Housing Department I
purporting to satisfy the Department that all the failed reinforcement steel
J J
bars had been removed from the construction site and had not been used in
K the construction. The applicant was convicted of two charges after trial. K
On appeal, the Court of Appeal uphold the 2.5 year starting point but
L L
reduced the overall sentence of 3.5 years’ imprisonment to 3 years.
M M
N 21. The defence submits that the defendant’s culpability is N
significantly less than the applicant in Chow Che Wai. Not only was the
O O
defendant not in charge of the SHW Lab, he was also not in charge of the
P investigation into the technicians’ misconduct, and he was not the person P
who made the decision to conceal the Simulated Test Irregularity from the
Q Q
CEDD. Further, unlike Chow Che Wai, there were no falsification of any
R R
documentation. Full records documenting the investigation, including the
S
Simulated Test Irregularity, were properly retained. S
T T
22. It is true that full records documenting the investigation were
U U
retained, yet these were not disclosed to CEDD. The defendant knew the
V V
A A
B B
reports submitted to CEDD were extensively edited with all reference to
C Simulated Tests Irregularity removed; those are plainly misleading reports. C
The defendant knew the Simulated Tests Irregularity was not an isolated
D D
incident, but a failure of the quality management system, and this has
E happened for years. He knew the cement was to be used in the Bridge E
Project.
F F
G G
23. I recognize that the JCL internal investigation started off in
H
accordance with the Code of Conduct, the defendant did not obtain any H
personal benefit, he was not involved or in any way condoned the behavior
I I
of the technicians, and the decision on non-disclosure first came from the
J Senior Management after seeking legal advice, and the safety of the Bridge J
was not comprised. Otherwise, I will adopt a much higher starting point.
K K
Yet being the Director of Operations of JCL and with his experience in the
L industry, he knew the Senior Management was acting dishonestly, and it L
was his own decision when he deliberately concealed the matter from
M M
CEDD.
N N
O
24. The substance of the legal advice was unknown. As per my O
judgement at para. 159, “legal advice is only lawyer’s opinion on a
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particular matter; whatever the advice given, it could not change the nature
Q of the subject matter. The subject matter concerned was “the Steel Bar Q
Issue, the Simulated Tests Irregularity”. Once D1 knew and agreed it was
R R
“an error, omission and shortcoming” stipulated in Clause 22. According
S to Clause 22, he on behalf JCL upon discovery of the Simulated Tests S
Irregularity, being “an error and shortcoming”, should report to CEDD.”
T T
U U
V V
A A
B B
25. The defendant was under a duty to disclose the Simulated
C Tests Irregularity upon discovery, he had knowledge of the matter by 11 C
August 2016 but he deliberately concealed the matter. While it was the
D D
fraudulent acts of the technicians that directly caused the monetary loss,
E yet should the defendant disclose the matter to CEDD upon discovery in E
August/September 2016, the subsequent remedial actions could be carried
F F
out much earlier and would only require to verify the tests done up to
G August/September 2016, instead of up to March 2017. G
H H
26. The significance of this case is upon the damage caused to the
I public confidence, in HKSAR v Poon Ka Wai , CACC 345/2018, the I
applicant was one of the technicians of SHW Lab, in refusing his leave to
J J
appeal against sentence, regarding the gravity of the offence committed by
K the applicant, the single judge of the Court of Appeal put it as follows: K
L “ 1) It undermined public confidence in the tests concerned and L
the accreditation system;
M
2) It seriously affected public confidence in the quality of the M
Bridge, caused panic among the public and violated public
interest, and the government had to take remedial measures
N N
to restore public confidence;
3) It created an extremely negative impact on the reputation of
O the works carried out in Hong Kong, Zhuhai, Macau and O
even in the whole Greater China Region;
P 4) In an attempt to remedy the situation, the government had P
to spend an extra $58 million in public funds to conduct
Q further tests in order to allay public concern; and Q
5) It was an on-going event over a long period of time
involving collective actions and thus inevitably caused a
R R
delay in the works and resulted in incidental financial
losses.”
S S
T
27. The integrity of the Engineering & Construction Industry in T
Hong Kong is of utmost importance. Test reports containing false result
U U
(obtained via simulated tests) had been presented to CEDD as valid
V V
A A
B B
HOKLAS reports over the years. But for the ICAC investigation, the
C Simulated Tests Irregularity would not be unveiled. The first three points C
mentioned in Poon Ka Wai are directly applicable in the present case.
D D
E 28. Having consider the scale of the Simulated Tests Irregularity, E
the damage caused to the public confidence, the negative impact on the
F F
reputation of Hong Kong Engineering & Construction Industry in the
G G
whole Greater China Region, and the costs on the remedial work in
H
particular that related to the non-disclosure upon discovery. I consider the H
appropriate starting point is one of 3 years imprisonment.
I I
J DELAY J
K K
29. Delay in prosecution could amount to a mitigating factor.
L Both parties refer to HKSAR v Chiu Chi Wing CACC 243/2012, the L
relevant remark of the Court of Appeal is at para.37:
M M
“The seven factors identified by Buss JA, which were stated not to be
N N
intended to be exhaustive or inflexible, were:
O “ First, delay is not, of itself, a mitigating factor. O
Secondly, delay will not ordinarily be a mitigating factor if
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it has been caused by difficulties in detecting, investigating
Q or proving the offences committed by the offender, and the Q
period of the delay is reasonable in the circumstances.
R R
Thirdly, delay will not ordinarily be a mitigating factor if it
S is caused by the offender’s obstruction or lack of co- S
operation with the State, prosecuting authorities or
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investigatory bodies, but the offender’s reliance on his or
U U
V V
A A
B B
her legal rights is not obstruction or lack of co-operation
C for this purpose. C
Fourthly, delay will not ordinarily be a mitigating factor if
D D
it results from the normal operation of the criminal justice
E system, including delay as a result of the offender or a co- E
offender exercising his or her rights; for example,
F F
interlocutory appeals and other interlocutory processes.
G Fifthly, delay may be conducive to the emergence of G
mitigating factors; for example, if, during the period of
H H
delay, the offender has made progress towards
I rehabilitation or other circumstances favourable to him or I
her have emerged.
J J
Sixthly, delay (not being delay of the kind described in the
K second, third and fourth guiding principles) will ordinarily K
be a mitigating factor if:
L L
(a) The delay has resulted in significant stress for the
offender or left him or her, to a significant degree, in
M M
‘uncertain suspense’; or
N (b) During the period of delay the offender has adopted a N
reasonable expectation that he or she would not be
O
charged, or a pending prosecution would not proceed, O
and the offender has ordered his or her affairs on the
faith of that expectation.
P P
Seventhly, delay caused by dilatory or neglectful conduct
Q Q
by the State, prosecuting authorities or investigatory bodies
R may result in a discount of the sentence that would R
otherwise be imposed on the offender, if the court thinks it
S S
an appropriate means of marking its disapproval of the
T conduct in question.” T
U U
V V
A A
B B
30. The prosecution has prepared the chronology of events for my
C consideration. The defendant was arrested on 16 May 2017 and released C
on ICAC bail on the next day. Thereafter time was spent on the seizures
D D
subject to LPP, further investigation and legal advice. The defendant was
E charged on 5 November 2021. Taking into account of the volume of the E
seizures, the issue of LPP, the number of overseas witnesses, I consider the
F F
time spent was reasonable.
G G
H
31. The defendant’s case was subsequently brought to West H
Kowloon Magistrates’ Court for transfer on 26 November 2021. The
I I
defendant appeared at District Court on 14 December 2021. Thereafter the
J defence made several applications for adjournment. Eventually plea was J
taken on 18 October 2022, dates in 2023 were given for the defendant’s
K K
stay application, PTRs and trial. All were within the normal operation of
L the criminal justice system during the period of COVID-19 pandemic. L
Thus, the delay alleged is not of itself a mitigating factor available to the
M M
defendant.
N N
O
OTHER MITIGATING FACTORS O
P P
32. The defendant was Director of Operation of JCL at time of the
Q offence, he secured another employment in September 2020 after he left Q
JCL in June 2020, and he worked part-time prior to his remand. Because
R R
of the nature of the offence, the termination of his academic appointments
S is inevitable. The usual retirement age in Hong Kong is around 65, the S
defendant is currently 67, though the family of four depends on him
T T
financially, it probably is the time for the family to prepare, if they have
U U
V V
A A
B B
not done so, for the defendant’s retirement. The two daughters are old
C enough to offer assistance in the care of their grandmother. C
D D
33. The defendant is convicted after trial. Having consider the
E E
defendant’s previous good character and contribution in academic field and
F the Engineering Industry as shown in the mitigation letters, the various pro F
bono activities he participated, his health condition since his arrest in 2017,
G G
the stress he encountered after his arrest and pending trial which
H contributes to his Major Depressive Disorder condition, I allow him a H
global reduction of 6 months. I do not consider there to be any further
I I
mitigating factor that calls for further reduction. That being the case,
J Section 109B of the Criminal Procedure Ordinance is not applicable in his J
case.
K K
L L
34. The defendant had two operations in respect of his prostate
M cancer and total hip replacement which require monitoring, and has Major M
Depressive Disorder. I direct the Correctional Services Department to
N N
provide him with the necessary medical care and psychiatric treatment.
O With the defendant’s consent, copy of his psychiatric report provided to O
CSD for reference.
P P
Q Q
ORDER
R The defendant is sentenced to 30 months’ imprisonment for Charge Two. R
S S
T T
( Ada Yim )
U District Judge U
V V
DCCC1065/2021 HKSAR v. LEUNG WING KEUNG ALBERT - LawHero