CACC 117/2024 [2024] HKCA 575

On appeal from [2024] HKDC 768 and [2024] HKDC 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 117 OF 2024

(ON APPEAL FROM DCCC NO 1065 OF 2021)

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J U D G M E N T

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Introduction

1. The proceedings before me commenced as an application for bail pending appeal but given the elaborate nature of the issues and the extensive detail of the submissions, the application was adjourned to also deal with an application for leave to appeal against conviction and sentence. The applicant has filed perfected grounds of appeal and a written submission in support of the leave application, and the respondent has filed a written submission in response.

2. On 1 June 2024, following a trial before Deputy District Court Judge Ada Yim (the judge) the applicant was convicted of a single charge of Fraud. He was sentenced to 30 months’ imprisonment.

The charges

3. The applicant (D1 at trial) and Leslie Harry Swann (D2 at trial) were, at the relevant times, Directors of Jacobs China Limited (JCL), a subsidiary of Jacobs Engineering Group Inc. (Jacobs Group). They were jointly charged with Conspiracy to Defraud, contrary to common law and punishable under section 159C(6) of the Crimes Ordinance ( Cap 200 ). It was alleged that between 28 July 2016 and 31 March 2017, they conspired together to defraud officers of the Civil Engineering and Development Department (CEDD), by dishonestly, concealing or failing to disclose that the staff of JCL had used tested or high strength concrete cubes or a metal calibration cylinder to substitute the original concrete sample cubes delivered to Siu Ho Wan Laboratory (SHW Laboratory) for construction material compliance testing (the Simulated Tests Irregularity), thereby causing the officers of CEDD to have failed to discharge their duty of providing reliable, efficient and effective construction materials compliance testing services for public work projects in Hong Kong (Charge 1).

4. In the alternative, the applicant and D2 were also jointly charged with Fraud, contrary to section 16A of the Theft Ordinance ( Cap 210 ). It was alleged that between 28 July 2016 and 10 May 2017, they, by deceit, namely by deliberately concealing that the staff of JCL had used tested or high strength concrete cubes or a metal calibration cylinder to substitute the original concrete sample cubes delivered to the SMH Laboratory for construction material compliance testing (the Simulated Tests Irregularity), and with intent to defraud, induced staff members of the CEDD to release payment in the sum of $1,971,514.96 Hong Kong currency to JCL, which resulted in a benefit to JCL and prejudice to the CEDD (Charge 2).

The case background

5. The Simulated Tests Irregularity concerned the testing of concrete samples for the construction of the Hong Kong-Zhuhai-Macau Bridge.

6. It was the applicant’s c