Case Detail

DCCC1065/2021

[2024] HKDC 1091

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1065 OF 2021

---------------------

	HKSAR
	v
	LESLIE HARRY SWANN (D2)

---------------------

Before:

District Judge Ada Yim (In Chambers, by paper disposal)

Date of Written Submission:	4 June 2024, 14 June 2024 & 24 June 2024
Date of Decision:	12 July 2024

Offence:	(1) Conspiracy to defraud
	(2) Fraud

-------------------------------------

DECISION
(Costs)

--------------------------------------

1. The 2^nd Defendant was jointly charged with the 1^st Defendant for Conspiracy to defraud and an alternative charge of Fraud. It was alleged that D2 had knowledge of “the Simulated Tests Irregularity” carried out in the Siu Ho Wan Laboratory (SHW Lab) and deliberately concealed the matter from CEDD. All along D2’s case was that he had no knowledge of the matter.

2. After due consideration, I accept D2’s evidence and find he had no knowledge of the matter. Accordingly he was acquitted of both charges on 1 June 2024. D2 indicated on 1 June he would apply for costs.

3. By the Submissions on Costs dated 4 June 2024, D2 made an application seeking:-

(i) an order for the prosecution to pay the costs of D2, to be taxed if not agreed; and
(ii) a certificate for two counsel, should the Court be amenable to the above application.

4. The Prosecution has indicated his objection on 1 June 2024, and by the Prosecution’s submission on D2’s Costs dated 14 June 2024, reiterated his stance but has no objection to granting a certificate for two counsel in the event the Prosecution is ordered to pay the costs of D2.

5. D2 submitted his Reply Submission on 24 June 2024.

Background

6. D2 was the Project Director of the consultancy agreement related to the operation of the SHW Lab (the project). He was notified of the time manipulation in SHW Lab on 28 July 2016, an ad hoc meeting about the matter was held on 29 July 2016.

7. The Senior Management decided to hold an internal independent investigation, headed by Jonathan Emery from Australia, to investigate the matter. D2 was excluded from that investigation held in August 2016, and this arrangement was made known to CEDD. JCL discovered “the Simulated Tests Irregularity/the Steel Bar Issue” during the investigation in August 2026. The investigation was concluded by end of August 2016.

8. To prove knowledge of D2, the Prosecution relied heavily on Tom Ngan’s evidence that he had informed D2 and others in the management team of JCL about the Steel Bar Issue on 28 and 29 July 2016. However, after due consideration, I considered that part of his evidence not only implausible but also contradictory to the contemporaneous evidence and testimony from all other witnesses.

9. D2, being the Project Director, was required to monitor the follow up actions of any shortcoming discovered in SHW Lab. Jonathan Emery sent two emails in January and February 2017 respectively to D1 and D2 requested for update of the outstanding follow up actions, including those related to the Steel Bar Issue.

10. In the normal course of operation, the full findings of the independent investigation would be provided to D2 upon completion of the investigation. There is no evidence whether, when sending out the emails, Jonathan Emery knew D2 had knowledge of the full findings of the investigation, or just believed the Senior Management should have told D2 the full findings of the investigation.

11. The evidence before the court is such that, apart from the two emails from Jonathan Emery received by D2 in January and February 2017 respectively, all the information provided to and materials came into existence after 26 July 2016 that D2 might have access did not contain any reference to the Steel Bar Issue.

12. D2 elected to give evidence that he had no knowledge of the Steel Bar Issue. He signed the Interim and Final Investigation Reports only because he was the Project Director. He relied on his judgment and the people who prepared the report. He said during a meeting with CEDD on 27 September 2016 with D1’s presence, WK Pun asked “if there’s anything else to report please include it”, this raised his suspicions on the matter of disclosure. He related WK Pun’s statement in a teleconference with the Senior Management later on the same day and was given reassurance that there was nothing else to report. Because he was heavily engaged in other projects, he did not go through the emails from Jonathan Emery. Whilst he concedes in hindsight this was an unfortunate oversight on his part. I consider and accept his evidence and he was acquitted accordingly.

The Law

13. The Costs in Criminal Cases Ordinance Cap. 492, section 5 provides that “where after trial in the District Court or the Court of First Instance a defendant is acquitted, the District Court or the Court of First Instance may order that costs be awarded to the defendant.”

14. Parties agree that the general rule is to award costs to an acquitted defendant unless there are positive reasons to deprive him of such costs.

Position of D2

15. It is D2 position that this is not a case in which (i) D2 was acquitted on a “technicality”; (ii) D2 brought suspicion upon himself; or (iii) D2 had misled the Prosecution/investigator into believing that the case against him was stronger than it was. Thus, there is no proper basis, either in law or in fact, for him being denied his costs.

16. The decision of the Prosecution to charge D2 with either or both charges, to proceed with those charges and then to continue with the case was in the circumstances, unreasonable. It was apparent from the outset that D2’s defence was based on his lack of knowledge. Large part of the Prosecution’s case relied on Tom Ngan’s bare allegation. The Prosecution should not have relied on Ngan’s evidence if due consideration was given to the plethora of contemporaneous evidence and testimonial evidence from other Prosecution witnesses that were contradictory to Ngan’s claims.

17. D2’s conduct at any stage is incapable of bringing suspicion upon himself nor misled the Prosecution. It is not disputed that during ICAC’s cautioned interviews with D2 that D2 exercised his right to silence. However, during those interviews, D2 was never questioned by the ICAC about Ngan’s allegations and/or D2’s explanation behind his receipt of the Emery emails.

18. It is the Court finding that D2 “had no knowledge of the matter prior his arrest. As such, D2 could not give an explanation to something that he had no knowledge. ICAC did not question D2 about the Emery emails at the relevant time, it cannot be said that D2 “had a perfectly good defence but chose not to give the slightest hint as to its existence” during the investigation stage or at any time prior to receiving the Prosecution’s bundle.

Prosecution’s Reply

19. D2 had plainly brought suspicion upon himself by his conduct prior to the investigation and trial stage, as well as by his conduct during the investigation stage.

20. Prosecution refers to the fact that D2 retained a role of liaising with CEDD during JCL’s internal investigation. And one would expect D2 being an experienced engineer should have familiarized himself with the investigation findings by taking steps to personally ensure that the reports included all relevant matters and that they reflect the whole truth before signing and approving the reports for issue.

21. There was no independent objective evidence was available to show directly that D2 was not privy to JCL’s internal investigation and had no knowledge of the Steel Bar Issue. In other words, the case against D2 did not stand or fall on the evidence of Tom Ngan, nor was there independent objective evidence that was contradictory to the Prosecution’s case that D2 had the requisite knowledge.

22. Regarding D2’s conduct during the investigation stage, he knew full well that the investigation concerned falsity in the investigation reports in respect of JCL’s internal investigation. It later transpired that it was D2’s case that he was excluded from JCL’s internal investigation and he involved in the liaison with CEDD and signed the reports only because of his capacity as the Project Director. And unlike in the normal course of business, he was not provided with the full findings of the investigation. Those are perfectly good defence to the allegation of falsity in the investigation reports.

23. However, despite how the facts and circumstances were highly suspicious in that they seemed, on the face of it, to suggest that D2 was involved in the internal investigation and the subsequent remedial works, D2 chose not to disclose the above defences to the ICAC during the investigation stage.

24. In other words, D2 had neglected to bring forward a good and valid explanation at an early and appropriate moment. Thus, D2’s conduct both prior to the investigation and trial stage, as well as during the investigation stage, had brought suspicious upon himself.

Case vs D2

25. It was apparent from the outset that D2’s defence was based on his lack of knowledge, and it was for the Prosecution to prove that he had knowledge of the Simulated Tests Irregularity/Steel Bar Issue.

• Tom Ngan’s evidence

26. As mentioned above, there is clear evidence in the Prosecution’s case that D2 was excluded from the JCL internal independent investigation carried out in August 2016 and CEDD was aware of this arrangement. The relevancy of Tom Ngan’s evidence is that the Steel Bar Issue was related to D2 directly/explicitly on 28 & 29 July 2016, i.e. prior to August 2016.

27. However, it transpired during the trial that his evidence was contrary to other contemporaneous evidence (some are unused materials provided to the defence) and testimonial evidence from other Prosecution witnesses.

• Emery’s emails

28. The Emery’s emails it is another piece of evidence, which Prosecution relied on to prove D2’s knowledge. The emails requested D2 to provide update of the outstanding follow up actions, including those related to the Steel Bar Issue. However, the emails on their own is not sufficient to draw any irresistible inference that D2 had knowledge.

29. The evidence before the court is such that, apart from the Emery’s emails, all the information provided to and materials came into existence after 26 July 2016 that D2 might have access did not contain any reference to the Steel Bar Issue.

30. As such, the prosecution relied heavily on Ngan’s evidence to prove D2’s knowledge. Yet his witness statements/evidence is contrary to other contemporaneous evidence available to the Prosecution.

D2’s conduct

31. As mentioned above there is clear evidence from the Prosecution that D2 was not involved in the internal independent investigation. The relevant evidence is also summarized in D2’s Reply Submission at paragraph 3.

32. It was clear to the Prosecution that it was a Jacobs Group decision to have the internal independent investigation and the final report of the investigation prepared by Johnathan Emery was submitted to the Senior Management. Thus, to exclude D2 was a decision from the Senior Management.

33. The Senior Management decided to keep D2 excluded from the finding of the Steel Bar Issue/Simulated Tests Irregularity upon completion of the independent investigation. Request from CEDD during a meeting on 27 September 2016 raised D2’s suspicious on the matter of disclosure; he did raise his suspicious with the Senior Management after the meeting but was reassured there was nothing else to report.

34. D2 believed he had been informed of the full findings of the investigation and signed the reports submitted to CEDD with this belief. He only became aware of the Steel Bar Issue upon receiving the Prosecution’s bundle.

35. It is not disputed that D2 remained silence in his cautioned interviews concerned falsity in the reports submitted to CEDD. However, ICAC never questioned D2 about Ngan’s allegations, his explanation behind his receipt of the Emery’s emails and his involvement in SHW Lab’s remedial works.

36. It is argued on D2’s behalf that D2 could not give an explanation to something that he had no knowledge of, and in such circumstances, the only answer he could have proffered to ICAC was a bare denial of the allegations he faced. In the face of such a bare denial, it is highly unlikely that the Prosecution would have then decided not to charge and prosecute D2.

37. As mentioned above it was apparent to the Prosecution that D2’s defence was lack of knowledge, that implied in contrary to the normal course of business, he was not provided with the full findings of the investigation by JCL. I consider and agree that D2 exercised his right of silence during the investigation stage should not deprive him of his costs. Upon considering the whole circumstances, I do not consider D2 had brought suspicious upon himself.

Conclusion

38. I agree there is no positive reason to deprive D2 of the costs in this case and the general rule applies. The prosecution is to pay the costs of D2, with two counsel certificates, to be taxed if not agreed.

	Ada Yim
	District Judge

DCCC1065/2021

[2023] HKDC 1616

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1065 OF 2021

---------------------

	HKSAR
	v
	LEUNG WING KEUNG ALBERT (D1)

---------------------

Before:

Deputy District Judge Ada Yim in Court

Date:

10 November 2023

Present:	Mr. Sean Wai Sum Eddie, Counsel on Fiat, for HKSAR/ Director of Public Prosecutions
	Mr. YEUNG Yat Hung, Alan, Public Prosecutor, for HKSAR/ Director of Public Prosecutions
	Miss CHEUK Lung Sang, Janice, Senior Public Prosecutor, for HKSAR/ Director of Public Prosecutions
	Mr. CHAN Derek, S.C. (Senior Counsel), instructed by Oldham, Li & Nie, for the 1^st Defendant’s
	Ms. CHAN Ferrida, instructed by Oldham, Li & Nie, for the 1^st Defendant’s

Offence:	[1] Conspiracy to defraud
	[2] Fraud

--------------------------------------

RULING

APPLICATION FOR STAY OF PROCESSINGS

--------------------------------------

1. This is the 1^st Defendant’s Application for Stay of Proceeding for an order that the present proceeding be permanently stayed on the ground that a fair trial is impossible and continuing the prosecution would amount to an abuse of process. A fair trial is not possible because he is unable to adduce privileged communications covered by legal processional privilege (“LPP”) in support of his defence as to his state of mind or his involvement or otherwise in the internal Jacobs China Limited (“JCL”) decision making process not to report the Simulated Tests Irregularity to Civil Engineering and Development Department of the HKSAR (“CEDD”).

THE CHARGE

2. D1 is jointly charged with D2 one count of “Conspiracy to Defraud ” , contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance Cap.200, that they conspired together to defraud officers of CEDD by dishonestly, concealing or failing to disclose “the Simulated Tests Irregularity”, thereby causing the said officers of the CEDD to have failed to discharge their duty of providing reliable, efficient and effective construction materials compliant testing services for public work projects in Hong Kong.

3. They also jointly faced an alternative charge of “Fraud”, contrary to section 16A of the Theft Ordinance, Cap.210, that they by deceit, namely by deliberately concealing “the Simulated Tests Irregularity”, and with intent to defraud, induced staff members of CEDD to release payment to JCL, which resulted in benefit to the said JCL and prejudice to the CEDD.

4. It is D1’s case that he and JCL had knowledge of “the Simulated Tests Irregularity” and relying the legal advice from both JCL in-house counsel and external counsel, he was not acting dishonest in failing to disclose “the Simulated Tests Irregularity” and he was in the belief that he was not under a duty to disclose.

5. Mr Derek Chan SC represented D1 submits that the main issue in the Application is whether D1’s conduct of the defence against the allegation that, inter alia, whether D1 was involved in the decision making process whether to report; whether D1 was dishonest applying the Gosh Test (in the Amended Charge); or whether D1 had an intention to practice deceit, i.e. whether he believed there was no duty of disclosure in respect of the Simulated Tests Irregularity (in the alternative Charge) in the present proceeding is prejudiced to an extent that a fair trial is impossible because of the JCL’s LPP claims.

6. Mr Eddie Sean, counsel-on-fiat represented the Prosecution opposes the application on the basis that D1 would still be able to conduct his defence properly in the absence of the LPP communications.

THE LAW

7. The jurisdiction to stay criminal proceedings has been considered by the Court of Final Appeal in HKSAR v Lee Ming Tee & Another [2001] 4 HKCFAR 133, at pg. 148 – 150:

“The decision whether or not to bring a prosecution falls entirely within the province of the Secretary for Justice: Basic Law art.63. In general, if a prosecution is brought, the court’s duty is to try the case.
:
:
The trial of course proceeds in the vast majority of cases. However, the court also unquestionably has jurisdiction to stay criminal proceedings brought by the Secretary in the exceptional cases where such a course is justified. That jurisdiction rests on the court’s inherent power to prevent abuse of its own process.
In most such cases, the court only grants the stay because, notwithstanding the range of remedial measures available at the trial, a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process.
:
:
A second line of stay cases …. proceeds on a different basis. These are the rare cases where the court is prepared to grant a permanent stay even though a fair trial undoubtedly remains possible. (But) the Court granted a stay because the circumstances involved an abuse of power which so offended the Court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.
While the jurisdiction on this dual basis clearly exists, it is only most sparingly exercised. There are cogent reasons why in principle and in practice such stays are highly exceptional.
In the first place, it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is “impossible”. The “fairness” achievable is judged in practical and not absolute terms.
More importantly, the court’s primary endeavour is to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that fairness cannot be attained, save as a last resort.”

8. D1’s application is based on the first limb. It is agreed that the burden of proof lies on D1 and the standard of proof is on the balance of probabilities. D1 must show he will suffer serious prejudice to the extent that a fair trial has become “impossible”.

BACKGROUND

9. Jacobs Engineering Group Inc. (“JEG”) was (and still is) one of the top multinational engineering companies in the world. JCL was incorporated in Hong Kong in 1995 and was (and still is) only a subsidiary within the JEG group of companies for its business and operation in Hong Kong.

10. Between 2012 and 2017, CEDD established a Public Works Regional Laboratories at Siu Ho Wan (“the Lab”) for the Test for the Hong Kong-Zhuhai-Macao Bridge Local Project (“the Project”). In March 2012, CEDD entered into a Consultancy Agreement (“the Agreement”) with JCL for outsourcing the management and operation of the Lab to JCL covering the period between 1 June 2012 and 30 June 2016. On 7 March 2016, the Agreement was extended to the effect that the Lab would be closed on 31 March 2017.

11. At the material time, D1 was the Director of Operations of JCL, and D2 was the Divisional Director and Head of geotechnical engineering team of JCL. CEDD paid JCL in accordance with the Agreement.

12. On 26 July 2016, the Time Manipulation Irregularity was discovered. Through a meeting on 27 July 2016 and a letter dated 28 July 2016, CEDD asked JCL to conduct an internal investigation into the Time Manipulation Irregularity and to submit an investigation report including proposed measures of preventing the recurrence of the Time Manipulation Irregularity in the future.

13. During the investigation of the Time Manipulation Irregularity, the Simulated Tests Irregularity was discovered. But JCL, D1 or D2 did not disclose the Simulated Tests Irregularity to CEDD. Without knowledge of the Simulated Tests Irregularity, CEDD released payment to JCL accordingly. CEDD was later informed by ICAC of the existence of the Simulated Tests Irregularity on 18 May 2017.

14. By a letter dated 15 June 2017, JCL represented to CEDD that the decision for not to disclose the internal investigation on Simulated Tests Irregularity was made by relying on legal advice and its technical assessment from a structural engineering perspective.

15. On 15 May 2017, D1’s personal computer, work diary and various documents were seized from his residence with search warrant executed. Upon D1 and D2’s arrest by ICAC on 16 May 2017, their work computers together with electronic copies and hardcopies of various documents were seized from JCL with search warrant executed. Later on various dates in November 2018, additional electronic copies and hard copies of various documents were seized from JCL.

16. JCL raised their LPP claims over documents seized. Parties agreed to submit the issue for determination by independent counsel. The determination was concluded by 12 April 2022, 256 items were determined to be covered by LPP and no party has sought to challenge that determination.

Legal professional privilege LPP

17. Mr Chan SC submits that with the voluminous exchange between JCL and his legal advisers a strong inference could be drawn that:

(1)  JCL in-house lawyers and external lawyers were heavily involved in the investigation process as soon as a serious integrity issue was raised by the CEDD on or around 28 July 2016;
(2)  During the period of the investigation process, staff were interviewed and some staff reported doing the Simulated Testing. It would appear that the Simulated Tests Irregularity was far smaller in scale than the Time Manipulated Irregularity issue;
(3)  Proper documentation of the interviews with the staff of the falsified tests was kept by those involved in the investigation;
(4)  Internal reports were constantly prepared by the investigation team; Mr Emery, an internal auditor, flew in from Australia to conduct this investigation. Proper documented internal reports were provided to lawyers.
(5)  JCL in-house lawyers and external lawyers were heavily involved in the preparation, actual drafting, revising, and/or commenting on the 1^st Report of Investigation and the Final Report of the Investigation;
(6)  A draft in D1’s computer contained a reference to Simulated Test, which indicated D1 had knowledge of the matter.
(7)  During the investigation period there was constant communication with lawyers, in-house and external.
(8)  The topic of Simulated Tests must have come up in the discussion with the lawyers. The issue would have been thoroughly and carefully considered, advice was sought and given as to whether it needed to be disclosed.
(9)  Having relied on legal advice from both in-house counsel of JCL and external lawyers, JCL limited their response to those issues raised by the CEDD and therefore only addressed the Time Manipulation Irregularity. JCL did not include reference to the Simulated Tests Irregularity on the basis of the legal advice received.

18. D1 gave evidence to support his application. According to his evidence, no one in JCL had any intent to deceive CEDD. The final decision not to disclose to CEDD was not made by him, though he was involved in the process. He was present during some of the discussions with lawyers, he understood the reasoning of the legal advice and he was told the decision not to disclose was based on legal advice received. His input was not sought when JCL issued the letter dated 15 June 2017 to CEDD. He is not able to explain matters related to the charges against him thoroughly without referring to the LPP materials.

19. Mr Chan SC submits that given the absolute nature of LPP, D1 is deprived of the ability to adduce in evidence the privileged communications in support of his defence as to his state of mind or his involvement or otherwise in the internal JCL decision making process not to report the Simulated Tests Irregularity to CEDD, unless JCL waives the privilege. Since JCL had already expressly stated to D1 that it would continue to maintain the LPP claims, D1 is unable to show that in relying on the legal advice, no one at JCL (including D1 himself) was dishonest in relation to the Amended Charge and no one in JCL (including D1 himself) at all times failed to act in good faith or had intention to deceive anyone, which goes to D1’s state of mind in relation to the Alternative Charge.

20. Mr Sean agrees that where LPP exists and is not waived or abrogated, it is absolute and is not subject to balancing exercise of weight competing public interests against each other. And LPP covers communications and documents between a client or his lawyer and third parties which were created for the dominant purpose of gathering evidence in obtaining legal advice.

21. However, Mr Sean does not agree a fair trial is impossible. Mr Sean submits that the conclusion of the legal advice was never known to the prosecution. Hence, the Prosecution would have no clue as to whether such materials would assist the defence or would strengthen the Prosecution case. As such, whether the absence of such materials would deprive D1 a fair trial cannot be determined solely based on D1’s allegation.

22. Mr Sean also submits that the LPP materials could not assist D1 to establish his innocence or materially assisted his defence. The Defence has mixed up the LPP communications with facts leading to the decision making process of not reporting the Simulated Tests Irregularity to CEDD. JCL by letter dated 15 June 2017 represented that the decision for not to disclose was made by relying on legal advice and itstechnicalassessment from a structural engineering perspective. In short, D1 is still able to adduce evidence on JCL’s technical assessment result in his defence. And D1’s belief, state of mind and opinion are facts which are not covered by LPP.

23. Mr Chan SC agrees with Mr Sean that the LPP materials must have covered the discussions and exchanges amongst JCL’s internal legal counsel, external legal advisors and various senior personnel including D1, before the legal advice was rendered by Pinsent Mason, the external advisor. It must be the case that JCL’s legal advisors would have perused all the relevant documents and taken into account the views of JCL’s senior management personnel before rendering the legal advice.

24. Mr Chan SC also agrees with Mr Sean that from the descriptions of the documents, these were likely no more than instructions and documents provided to legal advisors for the purpose of rendering the legal advice as well as discussions in relation to the Simulated Tests Irregularity amongst the parties. In this case, even if D1 was not involved in the drafting of the letter to CEDD dated 15 June 2017, he would have knowledge of the technical assessment concerned.

25. Mr Chan SC, however, submits that the circumstance of the present case is very unusual, D1 is able to explain the technical assessment, but this is only part of the matter, he would not be able to explain the whole matter thoroughly without the LPP materials. The legal advice was sought in the period concerned as stated in the charges, D1 was involved and had first-hand knowledge of the legal advice which directly influenced his mind yet he is not able to rely on this material evidence in his defence because he is not a party to the LPP as JCL has made it clear that it will not waive its claims on the LPP.

26. I noted that JCL had taken up the Time Manipulation Irregularity and held out to CEDD that it accepted it was accountable for the irregularity, the Simulated Tests Irregularity was discovered and followed up during the investigation of the Time Manipulation Irregularity. D1 was involved in the investigation. Both irregularities go to the strength/quality of the cement used in the Project and their accumulative effect would have potential adverse impact on the safety of the Project.

27. According to the evidence of D1, JCL was expected to receive an adverse report for the Time Manipulation Irregularity, if so JCL would also likely to receive adverse report for the Simulated Tests Irregularity on top of the Time Manipulation Irregularity. This undoubtedly would have impact on the company’s reputation, legal advice was sought shortly after JCL was notified of the Time Manipulation.

28. It is common ground that JCL carried on to investigate the Simulated Tests Irregularity and D1 was involved but the irregularity was not disclosed to CEDD. Time being instructions and documents were provided to internal and external legal advisors by JCL for the purpose of rendering legal advice, probably including whether to disclose the Simulated Tests Irregularity to CEDD.

29. The LPP materials probably contained the reasoning and opinion of others. D1 was involved in the discussion and had first-hand knowledge of the legal advice and its reasoning. In general, reasoning and opinion from professional tend to be more influential. But be it the case, legal opinion is only a piece of advice for consideration before one comes to his own decision. The issue here is the state of mind of D1 at the material time, his own reasoning and how he came to his final decision.

30. Upon discovery of the Irregularities, D1 would have been aware that some results of the cement tests carried out for/provided to CEDD under the Agreement, which said to be accurate were fake due to the irregularities. Being an experienced structural engineer working in the industry for over 35 years at the material time, expert in the technique of cement, the Director of Operations of JCL, a director of one of the top international engineering firm, the second man in the Hong Kong office, taking part in a major infrastructure project, ultimately it was D1’s own interpretation/opinion on the contract or his duty versus CEDD that caused him to make his own final decision not to/ agreed not to disclose the Simulated Tests Irregularity which had potential adverse impact on the safety of the Project.

31. Unlike the defendants in the case of Chan Kong On [2011] 2 HKLRD 1085, D1 is an experienced structural engineer and expert in the technique of cement as mentioned above. D1’s case is that without the LPP materials he is not able to explain thoroughly how he was influenced in his decision making process. D1’s case is not that without the LPP materials he would be forced to sacrifice his right to remain silence.

32. It is probably because simply producing the LPP materials, even if it is available, the state of mind of D1 would still be unknown without his own testimony. When D1 elects to testify in Court to defend himself, he can give evidence about his own decision making on not to/agree not to report the Simulated Tests Irregularity to CEDD without making any reference to the content of the LPP materials.

33. D1 is aware that there is a community standard on honesty. His personal view or opinion as to not to report the Simulated Tests Irregularity are facts within his own domain. The LPP claims by JCL would not prevent him from telling the Court all the relevant facts to prove his state of mind, for instance, his own opinion regarding the technical assessment or his own view as to why the Simulated Tests Irregularity would not be required to report to CEDD under the Agreement or his relationship with CEDD at the material time.

CONCLUSION

34. For the aforesaid reasons, I am not satisfied that D1 has made out his case. I do not agree that D1’s defence in the present proceedings is severely prejudiced to an extent that a fair trial is not possible because of the LPP claims by JCL. I am with the view that D1 fails to show a fair trial is impossible, his application to stay is refused accordingly.

( Ada Yim )
Deputy District Judge

HKSAR v. LESLIE HARRY SWANN

Related cases with same parties

Files (2)