HKSAR v. Chan Chun Chuen
Read the full judgment text of CACC 233/2013 on BabelCite. This Court of Appeal judgment was delivered on 30 October 2015.
1. The applicant seeks leave to appeal against his conviction on 4 July 2013 after trial by Macrae J, as Macrae JA was then, and a jury of a count of forgery of the will of Nina Kung (Count 1), and a count of using that will (Count 2), contrary to sections 71 and 73 respectively of the Crimes Ordinance, Cap. 200 (the ‘Ordinance’). In addition, the applicant seeks leave to appeal against the sentence of 12 years’ imprisonment imposed on him by the judge in respect of each of the two counts, which
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CACC233/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 233 OF 2013 (ON APPEAL FROM HCCC NO. 182 OF 2012) ____________ BETWEEN
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________________________ J U D G M E N T ________________________ Hon Lunn VP (giving the Judgment of the Court) : 1.The applicant seeks leave to appeal against his conviction on 4 July 2013 after trial by Macrae J, as Macrae JA was then, and a jury of a count of forgery of the will of Nina Kung (Count 1), and a count of using that will (Count 2), contrary to sections 71 and 73 respectively of the Crimes Ordinance, Cap. 200 (the ‘Ordinance’). In addition, the applicant seeks leave to appeal against the sentence of 12 years’ imprisonment imposed on him by the judge in respect of each of the two counts, which sentences were ordered to be served concurrently. The indictment Count 1 2.The Particulars of Offence of Count 1 alleged that between 15 October 2006 and 8 April 2007 the applicant made a will of Nina Kung, to whom reference will be made by her married name Mrs Nina Wang, bearing the date of 16 October 2006:
Count 2 3.The Particulars of Offence of Count 2 alleged that, between 4 April 2007 and 3 February 2010, the applicant used that purported will:
The trial 4.Mrs Nina Wang was born in Shanghai. Her Hong Kong identity card stated that she was born on 29 September 1937.[1] On 29 September 1955, she married Mr Teddy Wang The Huei.[2] In the early 1960s they entered the property development business in Hong Kong. They were successful and the Chinachem Group of companies, as they came to be called, became the largest private property developer in Hong Kong.[3] 5.On 12 April 1983, Mr Teddy Wang and Mrs Nina Wang were kidnapped. Mrs Nina Wang was released and, on her raising and paying a ransom of US$11 million, Mr Teddy Wang was released.[4] 6.On 5 August 1988 the Chinachem Charitable Foundation Limited, a charitable company, was established under the laws of Hong Kong.[5] 7.On 10 April 1990 Mr Teddy Wang was kidnapped for a second time. A ransom of US$60 million was demanded for his release. Approximately half that sum of money was paid to accounts designated by the kidnappers. Following the arrest of some of the kidnappers in Taiwan, most of the monies that had been paid as ransom were recovered. However, Mr Teddy Wang was not released and was never seen or heard from again. He is presumed dead.[6] 8.In about April 1997, Mr Wang Din Shin, Mr Teddy Wang’s father, applied to the High Court for leave to swear that Mr Teddy Wang was dead, so that he could apply for the probate of Mr Teddy Wang’s will dated 15 April 1968, under which he was the sole beneficiary. Subsequently, Mrs Nina Wang sought to propound Mr Teddy Wang’s will dated 12 March 1990.[7] On 16 September 2005, the Court of Final Appeal pronounced in favour of the will dated 12 March 1990, in which the entire estate was bequeathed to Mrs Nina Wang.[8] 9.On 28 July 2002 Mrs Nina Wang executed a will in the presence of two attesting witnesses, namely Mr Heng Kim Thiam and Mr Eric Li Chi Ming, in which she bequeathed her entire estate to the Chinachem Charitable Foundation.[9] The prosecution case 10.It was the prosecution case that although Mr Teddy Wang was not seen again after he had been kidnapped in April 1990, Mrs Nina Wang continued to believe that he was alive and that they would be reunited eventually. In 1992, she was introduced to the applicant who claimed to have expertise in feng shui and knowledge of the whereabouts of Mr Teddy Wang. From that time onwards the applicant provided Mrs Nina Wang with feng shui advice, which included digging holes at a number of Chinachem Group sites and received payments at her direction of about $3 billion in return. 11.On three separate occasions, namely 13 December 2005, 29/30 June 2006 and 23 October 2006, on Mrs Nina Wang’s directions, three separate payments of $688 million each were made to the account of the Offshore Group Holdings Limited, which was a British Virgin Islands company beneficially owned or controlled by the applicant.[10] 12.In January 2004, Mrs Nina Wang was diagnosed with cancer.[11] In January 2005, she was advised that it was incurable.[12] She received treatment in the United States of America. Then, as her health deteriorated, she also received treatment first in Singapore in October 2005[13] and finally in October 2006 in Hong Kong[14]. 13.On 16 October 2006, Mrs Nina Wang was scheduled to meet her doctors at the Hong Kong Sanatorium and Hospital. This was the first time that she had sought treatment for her cancer in Hong Kong. Before doing so she executed a document which made provision for a bequest to the applicant in the sum of money in excess of $10 million. She signed the document in the presence of Mr Winfield Wong, a solicitor, and Mr Ng Shu Mo, a long-standing employee of the Chinachem Group of companies. Each of them signed the document. She met her doctors at the Hong Kong Sanatorium and Hospital at 5:30 p.m. that day and arrangements were made for her admission on 18 October 2006 for chemotherapy treatment.[15] 14.It was the prosecution case that the document found its way into the hands of the applicant and formed the basis of the forged will, which bore the same date, propounded by the applicant. 15.Mrs Nina Wang’s health continued to deteriorate and on 3 April 2007 she died in the Hong Kong Sanatorium and Hospital.[16] 16.Following her death, the applicant produced a document which purported to be the will of Mrs Nina Wang dated 16 October 2006, in which he was stipulated to be the sole beneficiary of her entire state.[17] He said that he had been given a signed copy of the document, together with an unsigned version of the same document, in an envelope on the evening of 16 October 2006 by Mrs Nina Wang in her private quarters at Chinachem headquarters. 17.The conflicting terms of the two wills, the 2002 Will in which the Chinachem Charitable Foundation was the sole beneficiary, and the 2006 Will in which the applicant was the sole beneficiary, led to civil proceedings in the High Court. The prosecution adduced into evidence five witness statements filed by the applicant in those proceedings, together with a transcript of his evidence. Four of the statements were summarised. Also, the prosecution relied upon a video recorded interview conducted of the applicant by police officers. Finally, a summary of the evidence of the applicant in those proceedings was put before the jury. It was the prosecution case that, while some of the matters referred to by the applicant in those out-of-court statements were true, the applicant had told lies, in particular in respect of the circumstances in which he had come by the document which he propounded as the 2006 Will of Mrs Nina Wang. 18.It was the prosecution case that the document dated 16 October 2006 produced by the applicant was not the document bearing the same date signed by Mrs Nina Wang, Mr Winfield Wong and Mr Ng Shu Mo. For his part, Mr Winfield Wong said that the document that he had witnessed Mrs Nina Wang signing on 16 October 2006, which he and Mr Ng had also signed, was a single page typed document in English in which a sum of something in excess of $10 million was bequeathed by Mrs Nina Wang to a stipulated person. It was, as he described to her at the time, a “partial will”. The document produced by the applicant was a different document. Both he and Mr Ng Shu Mo said that a single piece of paper had been passed between the three parties as they made their respective signatures on the document. 19.Also, the prosecution relied on the evidence of Dr Li Chi Keung of his examination of the 2006 document produced by the applicant. He said that none of the electric typewriters found in the Chinachem headquarters, which used carbon ribbons, had been used to type the document which had been produced by use of a fabric ribbon. Furthermore, there was a difference in font and size of the typescript. From the fact that he discerned indentation marks on the unsigned draft of the will, it was his opinion that it had been beneath the signed version of the will when handwriting and signatures had been appended to the signed document. The defence case 20.The applicant did not avail himself of his right to give evidence but he did call Dr Jonathan Whitaker in the defence case. The applicant relied on what he had said in the civil proceedings in the probate case. In particular, that he was never Mrs Nina Wang’s feng shui master. Further, that the monies he had received from her during her lifetime had been given to him because of their long-standing intimate relationship, including a sexual relationship. She was anxious to improve his living conditions and for him to build up his own businesses. That very close relationship, also explained why he was named as the sole beneficiary of her will, which he had been given on the night of 16 October 2006 by Mrs Nina Wang. It was to disguise the true relationship that, at the behest of Mrs Nina Wang, he had become involved in hole-digging. The applicant pointed to two discs of video film of the two of them as evidencing their relationship. 21.Dr Jonathan Whitaker testified that low amounts of DNA were present on the 2006 Will produced by the applicant. He said that it was fair and reasonable to assume that each of Mr Winfield Wong and Mr Ng Shu Mo were contributors to the DNA he found. Grounds of Appeal Ground 1(a) 22.By ground 1(a) it was contended that the jury was inadequately directed in respect of their approach to the judgment of Lam J and the subsequent appeal proceedings. In particular, the judge erred in that he failed to give the most clear and unambiguous direction not to have regard to earlier judicial rulings. Further, the warnings he gave were generalized and related only to publicity, whereas, it was incumbent upon the trial judge to expressly address those earlier rulings, and indicate the different burden and standard of proof in those proceedings in warning the jury to try the case according to the evidence. Ground 1(b) 23.By ground 1(b) it was submitted that the judge erred in admitting into evidence material from the probate proceedings, in particular admissions as to the fact of those proceedings, and the (i) statements and (ii) a summary of evidence of the applicant in those proceedings. Of (i) and (ii), it was contended that they were not ‘mixed’ statements, nor were they ‘background’, as had been contended. Rather, they were wholly self-serving statements and, therefore, inadmissible. 24.Alternatively, it was submitted that the lies in the statements, if accepted as such, on which the prosecution relied in its closing speech were capable of establishing the propensity and characteristics of the forger and deceiver, such as to make it more likely the defendant was guilty as charged. So, the statements were capable of amounting to evidence of propensity, which evidence was inadmissible. Ground 1(c) 25.By ground 1(c) it was submitted that, not having had the benefit of full submissions from the prosecution as to the use to which the material was to be put, which became apparent in its closing speech only, the judge erred in the exercise of his discretion to admit the evidence. It was only in its closing speech that the prosecution asserted that lies in the applicant’s statements and evidence in the probate proceedings were capable of supporting the prosecution case. If the Court had been fully informed, it would have excluded the material. Ground 1(d) 26.By ground 1(d) it was contended that, having admitted into evidence the statements and evidence of the applicant in the probate proceedings, the judge erred in preventing the defence from deploying in evidence relevant material concerning those proceedings. First, to rebut assertions, which were made subsequently, in respect of what was said to be the applicant’s lies. Secondly, to support the applicant’s case that there was a dishonest attempt to discredit the 2006 Will, and to deprive him of his true estate. (i) The role of Ramesh Sujanani in the making of the draft witness statements of Winfield Wong 27.It was submitted that the judge erred in preventing the questioning of Mr Winfield Wong in respect of a draft statutory declaration e-mailed by Mr Sujanani to Mr Winfield Wong on 13 April 2007 and in ruling the document inadmissible. The e-mail was sent subsequent to a meeting on 12 April 2007 between them and Ms Fanny Cheng, a solicitor of Deacons, who had made contemporaneous notes of the conversation. 28.It was submitted that the material went to the very core of the defence case, as was illustrated by the central role it played within the probate proceedings. It was relevant to show the way the account of Mr Winfield Wong had been developed and led by Mr Sujanani and to understand how Mr Winfield Wong had come to decline to sign the declaration, in particular what he had said to Mr Sujanani and with which part of the draft statutory declaration he took issue. 29.Further, it was capable of establishing that there were various people putting their heads together giving suggestions to him and eventually to the compromising of his evidence favorable to the Foundation. (ii) The pleadings in the probate proceedings 30.It was submitted that the pleadings in the probate proceedings were inconsistent with the prosecution case. That was highly relevant to, and impacted on the credibility of Mr Winfield Wong and Mr Ng Shung Mo concerning the signing of the will on 16 October 2006, and all other witnesses, including Mr Joseph Leung, who gave evidence concerning the meetings of 7 April 2007, and thereafter, that the forgery was immediately apparent. It was to be noted that forgery was expressly disavowed in the pleadings in April 2008 and not alleged until 24 April 2009. Reference to the pleadings in the probate proceedings was relevant and gave context to the applicant’s witness statements, which the judge had wrongly admitted into evidence. 31.Further, it was submitted that the judge erred in preventing cross-examination of Mr Joseph Leung and Mr Jonathan Midgley upon the pleadings. (iii) The conduct of the applicant in the period after the death of Mrs Nina Wang 32.It was submitted that the judge erred in excluding admissible evidence concerning the conduct of the applicant in the period after the death of Mrs Nina Wang, and in particular his approach to the funding of members of her family. The material was relevant to the state of mind of the applicant at that time and not only rebutted the prosecution’s assertion that he sought the estate for himself but also supported his account 15 months before he made the statement dated 15 November 2008 and some two years before he gave evidence in the probate proceedings. Further, it rebutted the assertions made by the prosecution subsequently as to the lies told by the applicant in his statements and evidence in the probate proceedings. (iv) The conduct of prosecution witnesses and those acting on behalf of the Chinachem Foundation 33.It was submitted that the judge erred in refusing to permit cross-examination of prosecution witnesses on documents relating to the steps which had been taken by the prosecution witnesses to seek to negotiate the terms of the distribution of the estate of the deceased through mediation and offers of settlement of the litigation. 34.It was contended that the material was relevant to the truthfulness of the evidence of witnesses for the prosecution at trial, in that it tended to undermine those accounts. In particular, that was true in respect for Mr Winfield Wong. If, as he maintained, he had made known to other key witnesses on 7 April 2007 in L’Hotel that the 2006 Will must have been a forgery then the simplest way to deal with it was to report the case to the police. Further, Mr Winfield Wong agreed that the majority of his statement dated 7 April 2007 was guided by Mr Sujanani. Finally, the subsequent conduct of the three siblings of Mrs Nina Wang, as the governors of the Foundation, was wholly inconsistent with Mr Winfield Wong’s evidence on that issue. Ground 1(e) 35.By ground 1(e) it was submitted that the judge erred in failing to review the exercise of his discretion to limit the prosecution to adduce into evidence the out-of-court witness statements and evidence of the applicant in the probate proceedings, or to discharge the jury, at the conclusion of the closing speech of the prosecution to the jury. 36.The multiple assertions of the prosecution in that speech that the alleged lies of the applicant in that material supported the prosecution case was inconsistent with the way in which they had argued earlier that the evidence was admissible. Furthermore, that approach had not been foreshadowed in the submissions in respect of the relevant law that had been made to the judge in respect of the prospective summing up. The prosecution was effectively seeking to establish a propensity to dishonesty in the applicant. Ground 1(f) 37.By ground 1(f) it was submitted that, having directed the jury correctly, the judge erred in acceding to the repeated requests of the prosecution that he direct the jury that the lies of the applicant’s in his statements and in his evidence in the probate proceedings, if the jury found them to be such, were capable of supporting the prosecution case. That caused prejudice and unfairness to the applicant. 38.The original direction was all that was proper or necessary in the instant case. Lies could not be supportive of the prosecution case. Any lies of the applicant in his witness statements and the summary of his evidence in the probate proceedings were incapable of independent proof beyond reasonable doubt. The circumstances identified in Burge and Pegg [1996] 1 Cr App R 193 did not arise. Ground 1(g) 39.It was submitted, in the alternative, that the revised directions given by the judge to the jury in respect of the applicant’s out-of-court lies were inappropriate, inadequate and incorrect. First, if a Lucas lies direction was appropriate it was incumbent on the judge to identify to the jury in clearer terms the alleged lies of the applicant, in his statements and other summary of his evidence summaries, which could independently be supportive of the prosecution case. However, the judge failed to identify specifically the lies of the applicant that were capable of supporting the prosecution case. Secondly, he did not identify any possible innocent explanation for those lies. Finally, the jury was not expressly cautioned over the limited use to be made of the lies, nor directed that lies alone could not prove guilt. Ground 2 40.By ground 2 it was submitted that the judge failed to direct the jury as to “how they should approach the defence evidence, namely the DNA evidence” in accordance with the judgment of the Court of Final Appeal in Jim Fai v HKSAR. In particular, it was contended that the judge had failed to direct the jury in respect of the exonerating effect of aspects of the evidence of witnesses called for the prosecution, namely:
41.Then, it was contended that the judge had failed to deal adequately or at all with contradictions in the evidence of witnesses called for the prosecution, namely Mr Winfield Wong, Mr Ng Shung Mo and Mr Raymond Lau in respect of the circumstances in which the former two witnesses had attested the document signed by Mrs Nina Wang on 16 October 2006. 42.Similarly, it was submitted that the judge had failed to correct inaccuracies in the prosecution closing speech in respect of the evidence that Mrs Nina Wang had relied upon raising money by way of loans in order to make one of the three payments of $688 million to the applicant, whereas it was the evidence of Mr Joseph Leung that there were available to her cash deposits in the bank to make that payment. Ground 3 43.By ground 3, it was argued that the applicant’s convictions were unsafe in light of the fresh evidence available now to the applicant. By a Notice of Motion filed with the Court on 13 March 2015, the applicant sought leave to adduce that evidence pursuant to section 83 V of the Criminal Procedure Ordinance, contending that it was credible, admissible and that there was a reasonable explanation for the failure to adduce the evidence at trial. The conduct of the defence by trial counsel 44.At various stages throughout his presentation of the submissions on behalf of the applicant Mr Wood was critical of the conduct of the defence at trial conducted by Mr Kan. Frequently, he acknowledged that the judge had not been assisted appropriately in areas he described as critical and important. He said that concessions had been made orally during legal argument that ought not to have been made. The Court pointed out to Mr Wood that incompetence of counsel was not one of the multiple grounds of appeal. The matter was canvassed first before the morning break on the first day of the five days of the hearing. During the second day, Mr Wood informed the Court that he continued to reflect on the issue of seeking leave to amend the grounds of appeal to allege the incompetence of counsel. Then, he told the Court that he would seek leave to amend the grounds over the weekend. At the close of that day, he said that he would reflect on his position. During the third day he informed the Court that he did not intend to seek leave to amend the grounds of appeal. 45.In contrast to the vacillating position of Mr Wood took as to the issue of competence of counsel, Mr Wood remained critical throughout the hearing of aspects of counsel’s defence of the applicant at trial. He submitted that in those circumstances the judge had a duty to ensure that the applicant had a fair trial. Similarly, he contended that the issue was relevant to this Court’s consideration of whether or not the convictions were unsafe. A consideration of the Submissions 46.At the outset, it is necessary to say something about the extraordinary delay of over 26 months from the date of the applicant’s conviction to the commencement of the hearings in this Court. That delay is very largely attributable to the conduct of those representing the applicant. Although Form XI of the Criminal Appeal Rules, 221, by which the applicant gave notice of his applications for leave to appeal against conviction and sentence, was filed with the Court on 10 July 2013[18] perfected grounds of appeal were not filed with the Court until 10 December 2014. Those grounds were refused by Lunn VP, as not in compliance with Practice Direction 4.2. Revised perfected grounds of appeal were not filed with the Court until 13 March 2015. Even that date was only met, after the applicant sought and had been granted two further extensions in which to comply with the orders of the Court. 47.Although, on 5 September 2013 the applicant had been directed to file perfected grounds of appeal within one month of that date, as a result of orders made by a Master in response to requests by the applicant the time by which the applicant was required to file those grounds was extended until 7 July 2014. In the face of a request for second extension of six months, Lunn VP granted an extension until 7 October 2014. At the applicant’s request yet another extension was granted by Lunn VP until 7 December 2014. Ground 1 (a): inadequate directions to the jury in respect of the earlier civil proceedings The probate proceedings 48.The fact that there were contested probate proceedings which commenced in April 2007 by Chinachem Foundation in respect of the 2002 Will, in which the applicant was the 1st defendant, joined by proceedings commenced by the applicant in respect of the 2006 Will, was the subject of Admitted Facts made available to the jury, as was the fact that the trial before Lam J, as Lam VP was then, commenced on 11 May 2009 and concluded on 2 February 2010.[19] However, no reference was made to the judgment of Lam J, the Court of Appeal or the Appeal Committee of the Court of Final Appeal. Chronology 49.Lam J handed down his judgment on 2 February 2010. He pronounced for the force and validity of the last will of Mrs Nina Wang dated 28 July 2002. He pronounced against the force and validity of the last will of Mrs Nina Wang dated 16 October 2006, propounded by the applicant. In doing so, the judge said:[20]
50.The applicant’s appeal to the Court of Appeal was dismissed, as was his application for leave to appeal and his application to the Appeal Committee of the Court of Final Appeal on 14 February, 6 April and 28 October 2011 respectively.[21] The judge’s directions to the jury 51.At the outset of his summing up, the judge directed the jury in respect of the approach to be taken to the earlier civil proceedings. First, he gave the jury the standard Specimen Directions[22] to ignore irrelevant matters, including publicity and media and to determine their verdicts on the evidence that they had received during the trial:[23]
52.Then, the judge addressed specifically the issue of the earlier civil proceedings:[24]
53.Immediately thereafter, the judge went on to remind the jury of his earlier directions in respect of the Internet:[25]
54.As Mr Perry reminded the Court, in his pre-empanelment remarks to the jury panel, the judge had warned the jury panel of the dangers of having regard to matters that they knew of through the media, directing them to disregard that information and to take into account only evidence in the courtroom. Having observed to the jury, “… you will probably, if not almost certainly, recognise the defendant and know in general terms what the allegation is in this case”, the judge said:[26]
55.Again, as Mr Perry pointed out to the Court, immediately after the jury was empanelled the judge repeated those directions to the jury:[27]
56.Having explained the obvious reasons for those directions, the judge repeated his directions:[28]
57.There was no dispute that at the trial no application was made on behalf of the applicant that the proceedings be stayed for pre-trial prejudicial publicity. Similarly, no objection was taken to the judge’s directions to the jury in relation to the earlier probate proceedings. 58.In HKSAR v Lee Ming Tee [29] the Court of Final Appeal allowed the appeal of the HKSAR against the trial judge’s order staying the trial of the respondent on two counts of conspiracy to defraud and four counts of publishing a false statement of account. One of the bases on which the judge had stayed the proceedings was that of pre-trial prejudicial publicity arising from the publication of a report of an Inspector appointed by the Financial Secretary, pursuant to section 143(1)(c) of the Companies Ordinance, Cap. 32, to investigate the affairs of a company connected with the respondent. The report was published six years before the applicant’s committal for trial. 59.Although the Court of Final Appeal determined that the Inspector’s report should never have been published before the criminal trial was over, it was satisfied that, given the passage of seven years, any residual prejudice in the mind of a juror was likely to be minimal and could properly be negated by a properly conducted trial and appropriate directions to the jury. Having determined that the judge had not approached the question of whether a fair trial was still possible in conformity with principle, the Court determined that the judge’s exercise of his discretion was vitiated. Having found that there was every reason to believe that the respondent would be able to receive a fair trial by an unprejudiced jury properly directed, the Court exercised its discretion against a stay of proceedings on the basis of pre-trial prejudicial publicity. 60.In his judgment, with which all the other judges agreed, Ribeiro PJ said:[30]
61.Ribeiro PJ went on to say:
62.Of the curative effect on the element of such prejudice of the passage of time, Ribeiro PJ said:[31]
63.Of the impact of the receipt of evidence in the trial process on the mind of a juror, Ribeiro PJ said:[32]
64.It is clear that the scheme of the judge’s directions in respect of the fact that there were contested probate proceedings before Lam J in relation to the 2006 Will reflected the approach of the parties in the trial to the issue as evidenced by the ambit of the admitted facts, which were restricted to the fact of such a trial without reference to the judgment at First Instance or in the appellate courts. Also, it was consistent with the use made by those representing the applicant of the testimony of witnesses called by the prosecution and those representing the prosecution of the testimony of the applicant in the earlier probate proceedings. So, those matters were plainly and squarely before the jury. No doubt, that is why the judge directed the jury, as noted earlier, that in respect of other matters “…the probate proceedings are irrelevant to this trial.” [33] Resonating with that direction, was his earlier direction, “The way the two proceedings are conducted is different in their purposes different. So whatever may have happened in the civil probate proceedings cannot affect the way you decide this criminal case.” [34] 65.The complaint made to this Court that the judge did not direct the jury “not to have regard to earlier judicial rulings” in respect of the probate proceedings was not one made to the judge. That is not surprising, since it is clear that the parties at trial were at one in avoiding reference to the judgments of the courts in the trial or on appeal. To have given the direction would have been to focus attention on an issue which it is clear that those representing the applicant to trial were content be avoided by the parties and the judge. In any event, clearly the judge directed the jury, for the purposes of their deliberations, to ignore “whatever may have happened in the civil probate proceedings.” 66.Given that over 18 months had elapsed since the decision of the Appeal Committee of the Court of Final Appeal a significant period of time intervened between such prejudicial material as might have been published pre-trial before the commencement of the trial. We are satisfied that the judge’s forceful directions to the jury to ignore such information and material that might be known to them and to concentrate on the evidence led before them a trial were entirely appropriate. The directions had the merit of being simple, unambiguous and readily understandable. There is no reason to doubt the jury would not have complied with those directions. In that context, the observations of Lord Hope in his judgment in the Privy Council, with which Lords Slynn, Nicholls and Hoffman agreed specifically, in Montgomery v H M Lord Advocate are apposite:[35]
There is no merit in this aspect of this ground of appeal. Ground 1(b) 67.Objection was taken at trial on behalf of the applicant to the prosecution adducing into evidence material from the probate proceedings: namely, an edited version of the applicant’s witness statement dated 5 November 2008; summaries of four other witness statements of the applicant; and a summary of the applicant’s oral testimony in those proceedings. It was contended that they were: (i) not ‘mixed’ statements; (ii) that what the prosecution asserted were the applicant’s lies were capable of establishing his propensity as a forger and deceiver; (iii) that the judge did not have the benefit of full submission as to the use proposed by the prosecution of the material; and (iv) with the benefit of such knowledge the judge would have excluded the material. 68.As Mr Perry submitted, there was no dispute that the applicant had elected to file his witness statements with the Court and to give oral testimony in the probate proceedings. The judge’s ruling 69.As the judge noted in his ruling[36], the primary basis of objection was that the evidence was inadmissible as hearsay. It was asserted that to allow the evidence to be adduced was to allow evidence of the propensity of the applicant. It was contended that the witness statement and the applicant’s oral testimony were “…wholly exculpatory and provide no proof, for the prosecution of any facts in issue in this trial”. 70.Of the question of the relevance of the material, the judge said that there was “no real issue”. Having noted that the testimony and statements of the applicant produced in the civil probate proceedings went to the issue of the genuineness of a document purporting to be the will of Mrs Nina Wang dated 16 October 2006, the judge said:[37]
71.Of the broad nature of the applicant’s statements and testimony, the judge said:[38]
72.Having regard to the nature of the material, the judge said:[39]
73.Of the reliance that the prosecution sought to place on the material, the judge said:[40]
74.In the result, the judge determined:[41]
75.Of the issue of the exercise of his discretion to exclude the evidence, the judge said:[42]
76.In the judgment of the Court of Appeal of England and Wales delivered by Lord Parker CJ in R v McGregor[43], the issue of the admissibility of the evidence of the applicant given in an earlier trial at a subsequent trial on the same indictment was addressed. The applicant faced a charge of receiving stolen property. At the first trial, he gave evidence and admitted that he had possession of the property. At the retrial, the prosecution was permitted to lead evidence to that effect. In rejecting the submission that the evidence was inadmissible and dismissing the appeal, Lord Parker CJ said:[44]
77.The rule in Hollington v Hawthorn & Co [45], namely that as a matter of principle a judgment of one court is irrelevant and inadmissible in proceedings conducted by another court, is not in point. Mixed statement 78.There is no dispute that an out-of-court statement of a defendant, which is ‘mixed’ in nature, namely including exculpatory and inculpatory statements, is admissible at the behest of the prosecution in the trial of the defendant. 79.The question of how to identify the nature of admissions which can be described as ‘mixed’ rather than only ‘exculpatory’ was addressed by the Court of Appeal of England and Wales in R v Garrod. [46] As the judge noted in his ruling, in the judgment of the Court Evans LJ said:[47]
80.As the judge noted, the applicant’s statements and testimony in the probate proceedings were relevant to Count 2, in which the applicant was alleged to have used the 2006 Will with the intention of inducing somebody to accept it as genuine and by so doing to act to his or their prejudice. In that context, he noted that:[48]
81.We are satisfied that, in those circumstances, the judge was correct to conclude that:[49]
82.Further, we are satisfied that Mr Perry was correct in his submissions[50] that the reliance by the prosecution on statements made by the applicant in the probate proceedings as being lies had nothing to do with the applicant’s propensity or bad character. There is no merit in this aspect of this ground of appeal. The respondent’s reliance upon the applicant’s statements as lies 83.Of the submissions made on behalf of the applicant that, in the arguments advanced on behalf of the prosecution that the statements and oral testimony of the applicant in the probate proceedings be admitted in the trial, it was not made clear that it was intended to rely on them as being lies, Mr Perry invited the Court to have regard to the written and oral submissions advanced to the lower court. 84.In his written Respondent’s Submissions, filed with the Court on 15 April 2013, Mr Perry, described the reliance that the prosecution proposed to place on the statements and oral testimony of the applicant in the probate proceedings as being that, “…what the defendant had to say on the basis that his account of events (although self-serving), is inherently implausible.” [51] Earlier, Mr Perry said that evidence might properly be considered “…‘mixed’, in the sense that although it represents his case, the Prosecution would seek to rely on what he had to say as part of the relevant background to the allegations contained in the indictment.” In his oral submissions, Mr Perry said:[52]
Ground 1(c) 85.Of the submission advanced by Mr Wood, that the judge was deprived of an informed opportunity to exercise his discretion in respect of the admission into evidence of the statements and oral testimony of the applicant in the probate proceedings, it is to be noted that, as Mr Perry pointed out, in his ruling the judge had noted that the prosecution contended that the applicant’s account was “implausible or incredible”. Further, that he determined that in those circumstances they were entitled to:[53]
86.Clearly, the judge was aware that the prosecution intended to invite the jury to conclude that the applicant had lied in his account of events in the probate proceedings and, more particularly, that was evidence which supported the prosecution case that the will was false and made/used with the requisite intent. 87.Next, again as Mr Perry pointed out, in the prosecution opening its stance in respect of the applicant’s statements and oral testimony in the probate proceedings was made clear:[54]
88.Later in his opening, Mr Perry stipulated matters that he said were lies by the applicant in his evidence in the probate proceedings. In respect of the applicant’s assertions that he was not Mrs Nina Wang’s feng shui adviser, he said:[55]
89.Mr Perry went on to say:[56]
90.Then, Mr Perry suggested the reasons that the applicant had lied about providing feng shui advice and related services to Mrs Nina Wang:[57]
Conclusion 91.We are satisfied that the prosecution had made it plain from the outset that it relied on what it is alleged were lies in the statements and testimony of the applicant and the probate proceedings are supporting its case. Further, the judge understood that to be the case. As Mr Perry submitted, it is to be noted that at no stage did counsel for the applicant asked the judge to reconsider his ruling admitting that material. Similarly, no complaint was made to the judge by counsel for the applicant about the use of the prosecution made of the material. 92.There is no merit in this ground of appeal. Ground 1(d): conflict that the judge prevented the defence from deploying material in its defence Draft statutory declaration in the name of Mr Winfield Wong and the notes of Ms Fanny Cheng 93.Mr Wood submitted that the judge had “wrongly prevented” counsel for the applicant from producing to Mr Winfield Wong in cross-examination a draft statutory declaration attached to an e-mail dated 13 April 2007 sent to the latter by Mr Sujanani. 94.In context, the e-mail followed a meeting on 12 April 2007 between Mr Winfield Wong, Mr Sujanani, Ms Fanny Cheng, a solicitor of Deacons. Mr Winfield Wong said that during the meeting he had been questioned by Mr Sujanani about the circumstances in which he had attested a partial will signed by Mrs Nina Wang on 16 October 2006. 95.At the meeting at L’hotel on 7 April 2007, attended by Mrs Nina Wang’s three siblings, Mr Joseph Leung and Mr Sujanani, Mr Winfield Wong said that he had been presented with a copy of the will propounded by the applicant and questioned about the circumstances in which he had attested the partial will signed by Mrs Nina Wang on 16 October 2006. In particular, he was questioned by Mr Sujanani, who made notes. At Mr Sujanani’s direction a typed version in the form of a statement was prepared and presented to Mr Winfield Wong, which he signed on 7 April 2007 as being true.[58] He agreed that the document reflected what he had told Mr Sujanani. 96.Later, Mr Winfield Wong met Mr Sujanani at the Chinachem offices, having been told by the latter that he wished to take a statement from him. He answered Mr Sujanani’s questions about the circumstances in which he had attested the partial will and the differences between that document and the 2006 Will propounded by the applicant, whilst the latter compiled a manuscript narrative account of the events. 97.It was Mr Winfield Wong’s evidence that he had received the e-mail dated 13 April 2007 and the attached draft statutory declaration from Mr Sujanani.[59] However, he did not sign the draft statutory declaration. When the document was put in the hands of the witness and he was asked to confirm the date of its transmission, Mr Perry indicated to the judge that there may be “…a question of law” arising. Having confirmed that he had given witness statements to the police about the e-mail, Mr Winfield Wong was asked if he had provided reasons why he did not sign the statutory declaration. There followed an exchange between counsel and the judge, in which the judge said that if the rules of evidence were engaged the Court was to be addressed. Then, it was suggested to Mr Winfield Wong that during the probate proceedings he had been shown typed notes made by Ms Fanny Chiang and counsel for the applicant sought to provide the witness with some documents [60]. The judge intervened:[61]
98.Having been given a copy of his statement dated 7 April 2007, Mr Winfield Wong confirmed that it did not contain an assertion that the partial will he attested on 16 October 2006 contained a stipulation as to a specific sum or reference to the name “Mr Chan”.[62] That was inconsistent with what he had asserted in his evidence-in-chief, namely that “a certain sum of money would be given to a named person.”[63] Then, counsel suggested to him that that he had not mentioned either of those matters to Mr Sujanani in the conference of 12 April 2007. Mr Winfield Wong said that he thought he had mentioned that a sum of money was stipulated that he could not remember if he had named person.[64] 99.Next, the following interchange ensued:[65]
100.In the absence of the jury, further discussion stood between the judge and counsel. Having given an illustration of how an advocate might succeed in putting into evidence an inconsistent statement of a witness, the judge said:[66] 101.Counsel for the applicant went on to explain that enquiries had been made of Mr Winfield Wong in witness statements he made to the police:[67]
102.It was in those circumstances, that the judge gave a short ruling:[68]
103.As is clear from the judge’s ruling, the judge addressed the issue of the material being used only as a previous inconsistent statement of Mr Winfield Wong. It not having been adopted by Mr Winfield Wong, clearly the judge was correct to rule that it could not be used in that way. At no stage, did Mr Kan inform the judge, as has been suggested in the Skeleton Submissions of the Applicant, that the purpose of the cross-examination was to evidence the fact that “the account of Winfield Wong had been developed and led by Mr Sujanani”[69], for which purpose it was necessary to receive his evidence of what he had told Mr Sujanani and to invite Mr Winfield Wong to indicate what he disagreed with in the draft declaration, as a result of which he had declined to sign a document. Certainly, it was not suggested to the judge, as was suggested to this Court, that the evidence was relevant to the issue of whether or not there were, “various people putting their heads together giving suggestions to him and eventually to the compromising of his evidence favourable to the Foundation.” [70] 104.Obviously, the judge could only rule on the basis of the argument presented to him by Mr Kan. Insofar as he was assisted with any argument at all by Mr Kan, and not much was advanced before him in fact, we are satisfied that his specific limited ruling was correct. Clearly, that ruling did not prevent or inhibit the suggestion being made to Mr Winfield Wong, if it was the defence case, that the draft statutory declaration of 13 April 2007 did not reflect what he had told Mr Sujanani the previous day, rather it contained a suggested version of events favourable to the Foundation, which the witness was being enjoined or cajoled into accepting. Conversely, if it was the defence case that Mr Winfield Wong had made oral statements to Mr Sujanani, reflected in the draft statutory declaration, that was a matter that could have been put to Mr Winfield Wong. If the witness denied making those oral statements, then it was open to the defence to call Mr Sujanai to rebut that evidence. Similarly, it was open to the defence in those circumstances to call Ms Fanny Chiang to rebut Mr Winfield Wong’s evidence. 105.The written statutory declaration and the notes of Ms Fanny Chiang were not documents acknowledged and adopted by Mr Winfield Wong. So, they could not be used as prior inconsistent statements to contradict Mr Winfield Wong. However, they were available to be used to refresh the memories of Mr Sujanani and Ms Fanny Chiang in the event that they gave oral testimony in the defence case. Ground 1(d)(ii) 106.It was submitted that the judge wrongly refused to allow counsel for the applicant to make reference to the pleadings filed by the Foundation in the probate proceedings in cross-examination of Mr Joseph Leung and Mr Jonathan Midgley. At issue, was the fact that no allegation of forgery of the 2006 Will propounded by the applicant was made in the pleadings of the Foundation until 24 April 2009, notwithstanding the fact that in April 2007[71] the Foundation had sought an order of the Court that the 2002 Will was the last will of Mrs Nina Wang and the applicant had counterclaimed for an order declaring the validity of the 2006 Will. 107.In the Replies and Defence to Counterclaims dated 22 February 2008 the Foundation stated simply that the applicant was put to strict proof that the 2006 Will was duly executed by Mrs Nina Wang and was her last will and that it was not admitted that it was signed by her in the presence of the two witnesses.[72] On the other hand, it is to be noted that by paragraph 1 of those pleadings the Foundation stated that the pleading was drafted before the “Plaintiff has inspected the alleged 16 October 2006 Will” and asserted that they reserved the right to amend pleadings after inspection had taken place.[73] 108.For his part, Mr Wood submitted that the absence of an averment of forgery in the initial pleadings of the Foundation was inconsistent with the evidence of Mr Winfield Wong and the assertions that he had made him in his witness statement dated 7 April 2007, namely that the 2006 Will was not the document that he had signed on 16 October 2006. 109.In context, it is to be noted that having been filed with the Court on 16 November 2007, the 2006 Will was released on 4 December 2008 by order of Lam J to Haldanes, the applicant’s then solicitors, after which it was in the possession of the legal representatives of the applicant and the foundation for forensic examination in the period 4 December 2008 to 9 June 2009. 110.On 24 April 2009 the Foundation pleaded forgery in its Re-Amended Replies and Defence to Counterclaims.[74] 111.In cross-examination on behalf of the applicant, Mr Joseph Leung agreed that he knew that the Foundation had started a civil action against the applicant in probate proceedings and that he had read the Foundation’s Statement of Claim. In context, it was his evidence that he had been a director of one or more of the Chinachem Group of companies since 1987 and that he had been a governor of the Foundation since April 1990.[75] Then, the following interchange ensued between counsel and the judge:[76]
112.Again, Mr Perry objected, this time on the basis that what was sought was “irrelevant opinion evidence as to what was a possible course open to the governors in the civil proceedings.” For his part, Mr Kan confirmed that he wished to pose the question and asserted that it was “totally relevant.” The judge said simply:
113.During his cross-examination of Mr Midgley, in the absence of the jury, counsel for the applicant outlined to the judge a question that he proposed to ask Mr Midgley, clearly relevant to the absence in the initial pleadings of the Foundation of an averment of forgery in respect of the 2006 Will:[77]
114.In response to the judge’s question, “What is the relevance of what the solicitors think?” counsel responded that it was a factual matter raised by Mr Midgley, “whether the contention, on 28 March 2008, whether …forgery was the contention made by the other party.” Notwithstanding counsel’s assertion that the matter was important, the judge ruled:[78]
115.Given that Mr Joseph Leung was a long-standing director of companies in the very substantial Chinachem Group of companies and a long-standing governor of the Foundation, of which he was one of only five governors in April 2007, on its face he was likely to be in a position to deal with the questions, at least broadly, in respect of the litigation with the applicant. If not able to do so, it was to be expected that a man in his position would say so. It is to be noted that such questions as were asked of Mr Joseph Leung on this issue related to the fact that the Foundation had started an action against the applicant. Clearly, that was the Foundation’s application to the Court in respect of the 2002 Will. His response in the affirmative was to the question of whether or not he had read that statement of claim. It was in that context that counsel framed the question “No claim of false document, is it?” 116.Although Mr Wood has focused the attention of the Court on the Foundation’s Re-Amended Replies and Defence to Counterclaims, the attention of neither the witness nor the judge was drawn to those pleadings. Similarly, although Mr Wood has submitted that the issue which Mr Kan wished to canvas was the fact that the Foundation had not averred that the 2006 Will was a forgery until April 2009, no such submissions were made to the judge. On the other hand, the objection of Mr Perry to the question, with which the judge agreed, was generic, namely that it was not for the witness “to be asked about the pleadings”. 117.If Mr Joseph Leung had indeed read the pleadings, and not only the Foundation’s Statement of Claim, an obvious answer to counsel’s question lay in paragraph 1 of the Re-Amended Replies and Defence to Counterclaims in its initial form, namely that, not having inspected the 2006 Will “the Plaintiff reserves the right to plead further after such inspection has taken place.” [79] As noted earlier, it was after that inspection had taken place that the pleadings were amended to aver the forgery of the 2006 Will. 118.If on the other hand, albeit that he was one of the five governors of the Foundation on whose behalf the litigation has been conducted, he did not know why an averment of forgery was not made until April 2009, perhaps on the basis that it was a matter for the Foundation’s lawyers of which he was unaware, then no doubt he would have said so. 119.In face of the judge’s statement that “I don’t think it is appropriate or fair to ask him about legal documents” and the suggestion that the matter might be raised with other witnesses, the judge received no submissions at all from Mr Kan as to why it was that Mr Joseph Leung was in a position to answer his question or any intimation of the objective of the line of questioning, now suggested by Mr Wood. Nor did Mr Kan pursue the issue of the viability of the judge’s invitation to question other witnesses on the subject. Although Mrs Nina Wang’s three siblings also gave evidence for the prosecution, they were appointed as governors of the Foundation only days before her death. Mr Joseph Leung had been a governor for many years prior to them. If not Mr Joseph Leung, who was he to question? 120.Nevertheless, we are satisfied that Mr Kan ought to have been permitted to pursue that line of questioning with Mr Joseph Leung. 121.With respect to Mr Kan, the formulation of his proposed question for Mr Jonathan Midgley was bizarre. Given that in his proposed question he referred to the date of 28 April 2008, it is clear that he had in mind the response of the Foundation of that date to a Request for Further and Better Particulars made by the applicant. Had the question been formulated in that way, it was clearly permissible and the judge would not have been distracted in referring to the relevance of what solicitors think. The assertion in those pleadings, in response to the question of whether or not it was alleged that the will was a forgery, that “in advance of its inspection of the alleged 2006 Will, no such allegation is made of the date hereof” was clearly admissible through the evidence of the applicant’s then solicitor. 122.We are satisfied that the topic on which Mr Kan wished to question Mr Midgley was a legitimate one to pursue in cross-examination. Again, we are satisfied that, with respect to him, Mr Kan’s inapt way of going about his question and his failure to draw the judge’s attention to clearly relevant matters played a large part in the fact that the judge declined to permit him to pursue his question. 123.Although we are satisfied, as stated above, that Mr Kan ought to have been permitted to pursue his line of questioning of both Mr Joseph Leung and Mr Midgley, the forensic advantage of doing so was of limited benefit, given that there was a ready and obvious answer, as noted earlier, as to why forgery was not averred at the outset in the pleadings. Ground 1(d)(iii) - payments by the applicant to the family of Mrs Nina Wang 124.In the course of cross-examination of Mr Midgley, Mr Kan sought to adduce into evidence e-mails and supporting documents between Haldanes and family members of Mr Teddy Wang, in respect of provision of monies to them for their maintenance in the period June 2007 to January 2008. The e-mails spoke to requests for such financial support, which hitherto had been provided by Mrs Nina Wang, and affirmative responses made on behalf the applicant by Haldanes together with supporting documents which evidenced payments to a total of $697,580. 125.Mr Perry objected to the evidence being led on the basis that, “this previous reporting consistent statement, i.e. acting consistently with the terms of the will, is neither here nor there so far as the jury’s consideration is concerned, so it’s irrelevant.” [80] 126.For his part, Mr Kan responded:[81]
127.In the context of the evidence advanced by the applicant in the probate proceedings, which was before the jury, to the effect that apart from being named as the beneficiary in the 2006 Will, Mrs Nina Wang had asked him orally to ensure the ongoing maintenance of family members, Mr Kan submitted to the judge of the jury:[82]
The judge’s ruling 128.In his ruling, the judge addressed the issue of whether or not the material was a statement or a course of conduct:[83]
129.Then, the judge went on to say:[84]
130.In the result, the judge ruled:
131.In so ruling, the judge said he had regard to the judgment of the Court of Appeal on England and Wales and R v Roberts.[85] In the judgment of the Court, Humphreys J said:[86]
132.The correspondence and related documents which Mr Kan sought to adduce through Mr Midgley began with a request in an e-mail dated 5 June 2007 from Mr Teddy Wang’s sister informing Haldanes that, “due to estate issues”, payment had been stopped for their parents expenses and requesting “Mr Tony Chan to agree to release my parents expenses”. By an e-mail in response, dated 6 June 2007, Haldanes explained that probate had not been granted to Mr Chan but that, nevertheless, “..we have been asked to assure you that Mr Chan will take care of the expense in the same way as Mrs Wang did in her lifetime.” A request was made that, “a list of expenses and copies of the outstanding bills be provided.” Other e-mails in the same vein followed and the documentation sought to be adduced included receipts and invoices, together with correspondence and photocopies of cheques relating to payments by way of maintenance to Mr Teddy Wang’s parents. 133.The judgment of the Court of Appeal in R v Roberts was cited with approval in the advice of the Privy Council delivered by Lord Radcliffe in Fox v General Medical Council [87]:
134.The legal doctrine to which the Court had regard in R v Roberts and Fox v General Medical Council is variously called the rule against narrative or the rule against previous consistent statements and is of long-standing. 135.Mr Wood made the point that those authorities refer to statements, oral or written, made by the defendant or person complained against and not to conduct. He submitted that the evidence of the payment of monies to or on behalf of Mr. Teddy Wang’s family by the applicant was not a statement, but a course of conduct. 136.In response, Mr Perry referred the Court to the judgment of the Court of Appeal of England and Wales in Corke v Corke and Cook. [88] The respondent had separated from her husband, the petitioner, and lived in premises into which she took a male lodger. The petitioner went to the premises late at night where, having established that the two of them were in the male lodger’s upstairs bedroom, he accused the respondent, when she came downstairs, of adultery. The respondent denied the allegation. The appeal arose from the judge’s determination to admit into evidence the contents of a telephone conversation made by telephone at about 12:30 a.m., very shortly after the accusation of adultery, between the respondent and her doctor in which she had asked him to come to her home to examine her and the male lodger to show that she was not culpable of adultery. The doctor declined to do so, on the basis that he could not prove anything of the kind and his evidence would be valueless. 137.The Court was unanimous in dismissing the appeal on the basis that the petitioner had failed to establish adultery. By a majority, the Court determined that the judge erred in admitting the respondent’s out-of-court statements:[89]
138.As Mr Wood pointed out in reply, immediately after the passage cited above, Hodson LJ went on to say:
139.Of the twin issues of the respondent’s conduct and what she had said, Hodson LJ said:[90]
140.For his part, Sellers LJ said:[91]
141.Sellers LJ went on to say:
142.The fact, which is not in dispute, that the events were not initiated by the applicant but, rather were a response to a request is nothing to the point. Similarly, the fact that the applicant had not been arrested or charged is irrelevant. There is no dispute that the applicant had advanced the 2006 Will shortly after the death of Mrs Nina Wang on 3 April 2007. A copy of it was available and it was discussed at the meeting of 7 April 2007 at L’Hotel. By late April 2007, the Foundation had initiated proceedings to propound the 2002 Will. Clearly, battle lines were drawn between the parties. 143.Obviously, the e-mails sent on behalf of the applicant by Haldanes are to be taken as reflecting his instructions. So, we are satisfied that the judge was correct in describing them as statements which had been relayed on his behalf. No attempt was made before the judge, to separate out such statements from any other documentation. Mr Kan sought to adduce the whole bundle. Clearly, the documentation was intimately connected with the e-mails. We are satisfied that the judge was correct to describe the material sought to be adduced as self-serving and inadmissible. 144.Whilst it may well have been possible for Mr Kan to make the application in respect of the documents evidencing the fact of payments simpliciter, that was not the basis of the application he made. However, even in those circumstances there is force in the observations of Sellers LJ that “a skilful witness might well embark on circumstantial matters to bolster up his or her story.” As he noted, the purpose of the rule is to, “…is avoid deception of the Court by a resourceful witness”. Ground 1(d)(iv)-mediation and settlement 145.In the course of cross-examination of Mr Joseph Leung, Mr Kan sought to ask him, as a governor of the Foundation whether in 2007 the governors had considered the issue of settlement of the litigation. Objection was taken by Mr Perry to the question posed of Mr Joseph Leung by Mr Kan:[92]
146.In face of the judge's enquiry as to whether or not he wished to pursue the question, Mr Kan said:[93]
The judge’s ruling 147.The judge having ruled, “Well, I'm against you on that.” Mr Kan pursued the matter:
148.In the result, the judge ruled:[94]
149.For his part, Mr Kan said simply that he would move on. He made no attempt to articulate the reason that he sought to produce that evidence nor did he produce to the judge any documentation, in particular correspondence, on the subject. 150.By contrast, at the hearing before this Court, Mr Wood invited the Court to refer to selected correspondence between Haldanes, acting for the applicant, and JSM, acting for the Foundation. Those letters were dated 25 April, 25 July and 12 September 2007. For his part, Mr Perry invited the Court to have regard to other related correspondence, beginning with letters between the solicitors dated 20 April 2007. 151.In a letter dated 21 May 2007, Haldanes stated that “We wish to discuss a settlement of the matter”. It appears that initiated the process of discussions about settlement. Then, it appears that in May 2007 Haldanes stipulated a monetary offer. In a letter dated 10 July 2007, Haldane’s referred to that offer:[95]
By letter dated 25 July 2007 JSM rejected that offer and made counter proposals.[96] 152.In his written submissions, Mr Wood submitted that the material was relevant to:[97]
153.Further, in his oral submissions Mr Wood contended that Mr Kan was wrong to restrict the ambit of his questions, in particular he submitted that the actual figures proposed in the correspondence in respect of settlement were relevant. 154.Of course, once again, the judge had to deal with the application as made to him. It is clear that Mr Kan pursued the matter before the judge in an entirely different way from that canvassed before this Court by Mr Wood. Mr Kan told the judge that all he sought was an answer to the question of whether or not at some stage in 2007 the Foundation “had resolved to settle the matter”. He made it clear that he did not seek to find out the “reason of the decision”. He did not provide any correspondence to the witness or the judge. He did not say that he sought to establish the monetary amount stipulated in the correspondence dealing with the issue of settlement. He made no attempt to explain the relevance of his question. Certainly, he made no suggestion whatsoever, as Mr Wood did, that it was relevant to the account that Mr Winfield Wong was maintaining at that time in respect of the 2006 Will. 155.In those circumstances, in the absence of any explanation at all of the relevance of the question, no doubt the judge was anxious to avoid the focus of the trial being sidetracked by collateral issues. We are satisfied that, given the lack of any assistance at all provided to the judge by Mr Kan as to the reason he wished to establish the bare fact of a decision by the Foundation to resolve settle the matter, it is understandable why the judge should have ruled against Mr Kan. In those circumstances, it was not in error to do so. Lies Ground 1(e),(f) and (g) 156.It was submitted that, having regard to the prosecutions reliance in its closing speech on the alleged lies of the applicant, the judge erred in failing to review the exercise of his discretion to allow the prosecution to adduce into evidence the applicant’s in the probate proceedings. Further, it was contended that the judge erred in the revised directions that he did give to the jury as to lies. Discussions between the judge and counsel prior to the closing speeches and the summing up 157.In the course of discussions between the judge and counsel prior to the summing up, Mr Perry raised the issue of the alleged lies in the applicant’s evidence in the probate proceedings:[98]
158.Mr Perry went on to say:[99]
159.For his part, Mr Kan said:[100]
COURT: Yes. Yes, all right.” The prosecution closing speech 160.It was a recurrent theme of Mr Perry’s closing speech for the prosecution that the applicant had lied in his evidence in the probate proceedings about his relationship with Mrs Nina Wang, in particular that he was stipulated as the beneficiary in 2006 Will, which Mrs Nina Wang had given to him personally, because they were lovers and that was so in respect of the money advances she had given him since 1992. The latter had nothing to do with him giving her advice as a feng shui master. So, Mr Perry said:[101]
161.Mr Perry went on to describe that as a fundamental lie and detailed what he asserted were other related lies of the applicant:[102]
162.Subsequently, Mr Perry posed the rhetorical question:[103]
163.As noted earlier, it was the theme of Mr Perry’s address that the applicant did so in order to account for the vast payments of money that had been made to him and for the fact that he was stipulated as the beneficiary in the 2006 Will. In the context of his suggestion to the jury, that the applicant had changed his evidence as to the date at which he became sexually intimate with Mrs Nina Wang from September to April 1992, Mr Perry responded to his own rhetorical question:[104]
164.Of the applicant’s evidence that, having given him the 2006 Will, Mrs Nina Wang had given him additional oral instructions, including taking care of the Wang and Kung families and their education, the education of the children of Chinachem employees and to establish a scholarship, Mr Perry said:[105]
165.Of the circumstances in which the applicant said that Mrs Nina Wang had given him the 2006 Will, Mr Perry said:[106]
166.Of the fact that the applicant had said that Mrs Nina Wang had told him to return home with the documents, read them and keep them safe, Mr Perry said:[107]
167.Of the circumstances in which the applicant had said that he had come into possession of the 2006 Will, Mr Perry said:[108]
Defence closing speech 168.In his closing speech, Mr Kan did not advert at all to the applicant’s evidence in the probate proceedings, let alone to the lies that the prosecution alleged that he had told in that evidence. Discussions between the judge and counsel after the closing speeches and prior to the summing up 169.After the closing speeches and prior to the summing up, but after a weekend break following the conclusion of Mr Kan’s speech, the judge raised the issue of a lies direction with counsel:[109]
170.Although Mr Wood submitted to this Court that, in light of the prosecution submissions to the jury in their closing speech that the applicant had lied in the evidence adduced in the probate proceedings, the judge ought to have reviewed the exercise of his discretion in ruling that evidence admissible, Mr Wood conceded that no such application was made by Mr Kan nor was the matter raised by him in any manner whatsoever. Clearly, for his part Mr Kan took no issue with the manner in which the prosecution had closed its case. Nevertheless, Mr Wood submitted in his Skeleton Submissions of the Applicant that the judge, “…erred in failing to reconsider the exercise of his discretion to admit the evidence, and/or to consider the discharge of the jury.” [110] 171.Highly relevant to the judge’s approach to the issue was the stance taken by Mr Kan. He had made no complaint about the prosecution closing speech before making his own speech. In it, he chose not to address the issue of the alleged lies stipulated by the prosecution in the applicant's evidence adduced in the probate proceedings. That was a forensic decision of counsel. As Mr Perry pointed out in his submissions, for the defence to engage on the issue of the applicant’s lies was to give the alleged lies more focus. In addition, when the judge repeatedly raised the issue with Mr Kan of whether or not his closing speech would have been different if he had known that the judge was going to give a Lucas direction in respect of lies in the summing up, Mr Kan answered in the negative.[111] In those circumstances, it was no part of the judge’s duty in an adversarial system to second-guess the defence advanced by counsel as articulated in evidence, speeches and submissions. There is no merit in this ground of appeal. Summing up 172.In the summing up, the judge reminded the jury that the prosecution relied on statements made by the applicant in his evidence adduced at the probate proceedings:[112]
173.Then, the judge reminded the jury that in none of that evidence had the applicant admitted that the 2006 Will was forged. Thereafter, the judge gave the jury the direction on lies:[113]
174.The judge went on to remind the jury of the parts of the applicant’s evidence adduced in the probate proceedings which the prosecution relied on as being true:[114]
175.Of the explanations advanced by the applicant in respect of those matters, the judge said:[115]
176.Having given the jury the standard Sharp direction, namely that they were to have regard to all of the evidence adduced by the applicant and the probate proceedings in deciding where the truth lay, the judge said:[116]
177.The judge continued his summing up until the morning break, at which point, in the absence of the jury, Mr Perry raised the issue of the judge’s directions in respect of lies:[117]
178.Having responded in the negative to the judge’s question, “…that direction about supporting the prosecution evidence, is that not dependent on a so-called Lucas direction being given in full? ”, Mr Perry reminded the judge [118] of a passage cited to him earlier in the judgment of Chan PJ in the Court of Final Appeal in Yuen Kwai Choi v HKSAR, namely:[119]
179.In the result, Mr Perry submitted:
180.In response to the judge’s observation that, if the jury rejected the applicant’s explanations, the effect would be that “…well, they leave the jury no alternative but to look at the rest of the evidence which is the prosecution evidence”, Mr Perry said:[120]
181.In response to the judge’s observation that, “…the simplest thing would have been, in fact, to give a Lucas direction.” Mr Perry said:[121]
182.In the result, Mr Perry said:[122]
183.For his part, Mr Kan said:[123]
184.Then, having informed counsel that he would consider the matter, the judge resumed his summing up. However, at the end of the day, again in the absence of the jury, the judge canvassed the issue of a lies direction with counsel again. The judge pointed out to counsel[124] that in its judgment in HKSAR v Huang Song Fu [125] this Court had resiled from its judgment in HKSAR v Mo Shiu Shing [126] and determined that an abbreviated lies directions was inappropriate, stating that if a lies direction was to be given, it was to be the complete direction. 185.For his part, Mr Perry said:[127]
186.The judge went on to say in respect of the earlier discussions as to a direction in respect of lies, given that neither party sought such a direction, that, “there may have been a miscommunication, a misunderstanding between all of us.” He added, “…do you see where we’ve gone wrong?” [128] 187.For his part, Mr Kan confirmed that he had no objection to the way in which the judge had directed the jury and that he did not wish the judge to give the Lucas direction.[129] Then, the Court adjourned without the judge having indicated definitively how he intended dealing with the matter. 188.On the following morning, in the absence of the jury, the judge received further submissions from Mr Perry. He submitted that, “this is also the case that the jury are being asked to decide on the truth of what the defendant said on a central issue in that case.” Of the central issue of what the applicant had said in the probate proceedings, Mr Perry said:[130]
189.Of that key assertion, Mr Perry said:[131]
190.Of the evidence advanced in support of the key assertion in the applicant’s evidence in the probate proceedings, Mr Perry said:[132]
191.For his part, Mr Kan said:[133]
192.Mr Kan went on to confirm that he did not seek a Lucas direction and that it was his position that the directions that the judge had given sufficed.[134] The judge read out what he described as “the standard Lucas direction”, culminating in the direction:[135]
193.Then, having said earlier, “I want a straight answer to this” [136] the judge posed this question to Mr Kan:[137]
194.Having responded twice that it would have made no difference, Mr Kan said:[138]
195.Notwithstanding Mr Kan’s repeated confirmation that the giving of a Lucas direction in respect of lies would have made no difference to the defence closing speech, the judge returned to the issue:[139]
Summing up: redirections 196.When the jury returned, the judge informed them,[140] “I’m going to go back to one thing I told you on the law and qualify the direction I gave you.” The judge identified the qualification as relating to his directions in respect of the alleged lies of the applicant in the evidence adduced in the probate proceedings. Then, he read out his earlier direction, pausing three times to say that he did not wish to change the particular passage that he had repeated.[141] Of his direction, “lies do not prove guilt” he said that he needed to qualify that to some extent:[142]
197.Of the effect of his modified direction, the judge said:[143]
198.The judge proceeded to repeat the direction that he had given the jury earlier, until he reached his direction that even if they entirely rejected the explanations put forward by the defendant that “would not relieve the prosecution of the burden or duty of making sure, by evidence, of the defendant’s guilt.” Then, the judge said:[144]
199.Thereafter, the judge reminded the jury of the burden and standard of proof, before summarising the effect of his redirections:[145]
200.The complaint made by Mr Wood in the written Skeleton Submissions of the Applicant that the revised direction placed too great an emphasis on lies and ended with the words “to have those at the forefront of your minds” is misdirected.[146] That phrase in the judge’s directions clearly related to his reminder to them of the standard and burden of proof:[147]
201.Similarly, his complaint that the judge had failed to direct the jury that “lies alone could not prove guilt” is manifestly mistaken. As noted earlier, the judge had given the direction, “lies do not prove guilt”[148] twice in his original direction, which directions he repeated in the process of giving the jury his modified direction.[149] 202.Mr Wood’s complaint in respect of the judge’s revised direction in respect of the applicant’s alleged lies in his evidence adduced in the probate proceedings concerned two matters. First, that the judge failed to give a direction that such lies had to be proved by independent proof. Secondly, the judge failed to specify which lies of the applicant they could take into account. Independent proof of lies 203.There is no dispute that the judge did not give the jury a direction of the necessity for there to be independent proof of an alleged lie of the applicant before they could take it into account as a lie supporting the prosecution case. There was no requirement that he give such a direction. 204.As Chan PJ made clear in his judgment in Yuen Kwai Choi such a direction is not required, unless it is sought to make use of the lie as amounting to corroboration. Chan PJ said:[150]
205.In R v Chong Chak On this Court considered a submission that the effect of the judgment of the Court of Appeal of England and Wales in R v Goodway [151]was to extend the requirement that all four criteria stipulated by Lord Lane CJ in R v Lucas “to all cases where lies are relied upon to support evidence of guilt.” [152] The fourth of criteria is that the lie “must be shown to be a lie by either an admission by the defendant or by the evidence of an independent witness.” In Goodway, the prosecution sought to rely as support for identification evidence on the lies told by the appellant in out-of-court statements to the police. In the judgment of this Court of which Chan J, as Chan PJ was then, was a member, Power Ag. CJ said:[153]
206.In Edwards v R [154] the High Court of Australia was concerned with a direction by the trial judge that the alleged lies of the defendant in evidence was capable of being corroboration of the evidence of the complainant to an indecent assault by a fellow male prisoner in a prison van, if the jury was satisfied of the four criteria articulated by Lord Lane CJ in Lucas. In the judgment of the majority, Deane, Dawson and Gaudron JJ, allowing the appeal the circumstances in which the fourth criteria was required was addressed:
207.As the judge’s direction made clear, in the instant case if the jury was satisfied that the applicant had lied in his evidence adduced in the probate proceedings, that finding was capable of supporting the prosecution case. The issue of corroboration did not arise. Accordingly, we are satisfied that there is no merit in this ground of appeal. Identification of the lies 208.In his written Skeleton Submissions of the Applicant, Mr Wood complained that the judge had “failed to identify the specific lies capable of supporting guilt”. Further, it was submitted that the judge had failed to advance any possible explanations for those lies.[155] 209.In his initial directions in respect of lies, the judge reminded the jury of the applicant’s evidence adduced in the probate proceedings that “Mr Perry has said that while some parts of that evidence may be true, there are a number of matters on which the defendant has lied.” [156] In the course of identifying the parts of the applicant’s evidence in the probate proceedings upon which the prosecution relied, the judge referred to the undisputed receipt of vast payments of money from Mrs Nina Wang, together with the evidence of the applicant’s involvement in the practice of feng shui. In doing so, the judge identified the prosecution case in respect of those two matters; namely, “Mr Perry said that these vast amounts must have been for feng shui advice given by the defendant to Mrs Wang.” [157] 210.Then, the judge reminded the jury of the explanations advanced by the applicant.[158] First, that he enjoyed an “intimate relationship with Mrs Wang”. Secondly, that Mrs Wang believed in feng shui to improve her luck, and that he “simply fell in with the wishes rather than became her feng shui master.” Thirdly, that she had wanted him to be successful in business and to inherit her estate and “trusted him to do the right thing.” 211.Later in his summing up, in his consideration of the defence case, the judge returned to the issue of the explanations advanced by the applicant in the evidence adduced in the probate proceedings.[159] In doing so, the judge summarised the fundamental aspects of the applicant’s case as advanced in that evidence, namely that he enjoyed an intimate sexual relationship with Mrs Nina Wang and it was in that context that she had given him vast sums of money. Although he was knowledgeable in feng shui and had set up a feng shui school at one time, he was never Mrs Nina Wang’s feng shui master and the monies she gave him, was not for feng shui services. On 16 October 2006 she had given him the will, which was typewritten. Mrs Nina Wang knew how to type. He did not ask her why she gave him the will. He did tell her that it was all “very troublesome” for him. 212.In the course of his further direction to the jury in respect of the issue of lies, as noted earlier, the judge identified further the alleged lies of the applicant relied upon by the prosecution:[160]
213.Although the judge had identified the key or core assertion as being “how he came by the will”, without further particularisation, it would have been obvious to the jury that was a reference to the fundamental issue in the case, namely the intimate sexual relationship that the applicant said in his evidence in the probate proceedings he enjoyed with Mrs Nina Wang. That was why she gave him vast sums of money. He was not paid by her for feng shui services. They were lovers and she trusted him. 214.The judge’s reference to other lies of the applicant on which the prosecution relied was unparticularised. The judge said merely that the prosecution:[161]
215.No doubt, it was with that direction in mind that Mr Wood complained in his oral submissions that the direction was “inappropriately broad”. It was not focused. He said that the danger was that the jury might have given weight to a lie (s) which did not support the prosecution case. Significantly, however he did not identify any such lie, other than that in relation to the applicant’s statement to Mrs Nina Wang’s sisters, namely Dr Molly Gong and Mrs Tong, that he had lied to Mrs Nina Wang in telling her that she would live until 90 years of age, because he had talked to/communicated with Buddha. 216.During the hearing, Mr Wood took the Court through Mr Perry’s closing speech at very considerable length, identifying what he categorised as being 56 alleged lies by the applicant in his evidence adduced in the probate proceedings. Certainly, Mr Perry did not use the word lie to categorise each of those statements. However, the statements to which Mr Perry pointed in his speech to the jury as being variously lies, unbelievable and untrue fell into the category described by the judge, as put forward by the applicant in support of how it was that he came by the will. On the one hand, there was his evidence of their sexually intimate relationship. That was why she gave him money. Even within two or three days of her death, she invested in his businesses. On the other hand, there was his evidence that he was not her feng shui master. Insofar as he conducted himself as if he was her feng shui master, that was a pretence only, so that they could be in each other’s company more easily. 217.Whilst it is normally required that the judge should identify to the jury which specific lies, if determined to be such by the jury, are capable of supporting the prosecution case and direct them which lies are not so capable, there is force in Mr Perry’s submission that if the judge had done so in any detail it would have distorted the balance of the summing up. In that context, it is to be remembered that, in the defence closing speech, Mr Kan did not address the issue of the alleged lies of the applicant at all. As Mr Perry put it, the danger was that, if the judge addressed the alleged lies in detail in his further directions on the summing up, he would have been accused of making a second prosecution speech. 218.Nevertheless, it would have been desirable for the judge to have directed the jury specifically that the alleged lies which were capable of supporting the prosecution were those that went to the issue of the relationship that the applicant enjoyed with Mrs Nina Wang, namely lover or paid feng shui adviser. If the jury was satisfied that he had lied about being her lover in the various statements that he had made to that effect and/or that he had lied about not giving her feng shui advice, for which he was paid, those lies were capable of supporting the prosecution case. The applicant’s admission that he had lied to Mrs Nina Wang in telling her that she would live to 90 years because he talked to Buddha 219.The judge reminded the jury of the evidence of Dr Molly Gong and Mrs Tong of the applicant’s statement to each of them at a meeting on 4 April 2007 that the only lie that he had told Mrs Nina Wang was that she would live to 90 years of age and that he knew that to be the case because he had talked to or communicated with Buddha.[162] In cross-examination, each of them had said that they thought that he may have/had told their sister that in order to comfort her.[163] 220.In his closing speech, Mr Perry addressed the issue:[164]
221.Clearly, there were two aspects to the applicant’s admitted lies to Mrs Nina Wang. Comforting a dying woman by saying that she would live to a great age was one matter. In the context of this case, telling Mrs Nina Wang that he was able to say that because he had spoken to Buddha was quite another matter. Clearly, it was relevant to the issue of the nature of the relationship between Mrs Nina Wang and the applicant, in particular whether or not he was her feng shui adviser, whom she believed to be possessed of special powers. Relevant to that issue was the evidence of Dr Molly Gong of her first meeting with the applicant at the Hong Kong Sanatorium on 23 March 2007, of which the judge reminded the jury:[165]
222.Earlier, in the discussions between counsel and the judge in respect of the directions to be given in the summing up, at which point counsel were agreed that no lies direction was required and that a direction as to the burden standard of proof would suffice, Mr Perry said of this evidence:[166]
223.No doubt, in describing the applicant’s admitted lie in relation to Buddha as being part of the general narrative of the evidence, Mr Perry had in mind that it was part of the evidence that supported the prosecution case that the applicant was acting as a feng shui adviser to Mrs Nina Wang and that he claimed falsely to have special powers. Certainly, that is how he approached the matter in his closing speech. 224.We are satisfied that this admitted lie of the applicant was capable of supporting the prosecution case in respect of the key or core issue, namely the relationship between the applicant and Mrs Nina Wang. Innocent reasons/explanations for the applicant’s lies 225.The judge did direct the jury to have regard to whether or not possibly there were innocent reasons for the applicant’s lies:[167]
226.It is clear that Specimen Direction 42.2 of the ‘Specimen Directions in Jury Trials’ of the Judicial Institute was the template for the judge’s directions. However, given that most of the alleged lies were to be found in the evidence produced by the applicant in the probate proceedings, that template did not resonate particularly with the circumstances of this case. Here, the applicant’s alleged lies were advanced in support of a positive case in respect of the 2006 Will in the probate proceedings. So, there was no question of the applicant acting in panic or confusion or of his concealing disgraceful conduct other than the commission of the offence. The account advanced by the applicant was a deliberate and calculated decision to propound the validity of the 2006 Will. 227.There is no dispute that the judge did not condescend to give any specific example, in relation to any of the alleged lies, of an innocent reason (s) for making that lie (s). That is not surprising, since no attempt was made to do so in the closing speech of the applicant’s counsel at trial. Indeed, as noted earlier, he did not advert to the alleged lies at all. In all the circumstances, it is very difficult to see what the judge could have said about the issue to the jury. Conclusion 228.We are satisfied that there is no merit in the several grounds of appeal advanced in respect of the judge’s directions relevant to the applicant’s lies. Ground 2 The judge’s failure to direct the jury properly as to their approach to the defence case 229.Having given the jury the standard directions as to the burden and standard of proof[168], at an early stage of his summing up the judge directed the jury as to their approach to the defence case:[169]
230.Earlier, in his post-empanelment directions to the jury, in giving the jury a brief outline of the procedure in a criminal trial, the judge addressed the issue of the purpose of cross-examination of prosecution witnesses by the defence:[170]
231.In context, it is clear that in directing the jury to have regard to the “defence put forward by the defendant”, the judge was directing the jury to have regard not only to the defendant’s evidence, as advanced in the probate proceedings and in his video recorded interview with the police, but also to the evidence adduced from prosecution witnesses, in particular that resulting from cross-examination, relied on by the defence. We do not accept Mr Robert Lee SC’s submission that the direction related to the evidence of the applicant only and not to all the evidence adduced in all of the defence case, including evidence from prosecution witnesses. Clearly, the effect of the judge’s directions was that, if that evidence might be true, the applicant was to be acquitted. Although the judge did not specifically state so, clearly that applied to evidence that was relevant and material to the issue of whether or not the applicant was guilty or not guilty of the charges. 232.We are satisfied that the judge's direction accorded with the fundamental principle identified in the judgment of the Li CJ in his judgment, with which all the other judges agreed, in the Court of Final Appeal in Jim Fai v HKSAR [171] namely:
233.It was the scheme of the judge’s summing up, to address the points made by the defence in reminding them of the evidence of each of the witnesses in cross-examination in the course of reminding the jury of the evidence of each witness. Dr Christina Li 234.It was contended that, in the context of Dr Whittaker’s evidence in respect of DNA, Dr Christina Li’s evidence constituted “exonerating prosecution evidence” and that the judge failed to direct the jury that if that might be the case they must act on it to acquit the applicant. It was her evidence, which it was accepted was accurately summarised by the judge, that analysis of the swabs taken from the 2006 Will, the unsigned and the envelope revealed “no detectable amount of human DNA being present.”[172] At issue, was her evidence that:[173]
235.Of Dr Whittaker’s evidence, the judge said:[174]
236.The judge went on to remind the jury that it was his evidence that, “there was DNA present from multiple contributors….there was at least one male contributor.” Dr Whitaker said that:[175]
237.However, the judge went on to remind the jury that Dr Whitaker accepted that:[176]
238.Further, in cross-examination, Dr Whitaker agreed that:[177]
239.In consequence, Dr Whitaker accepted:[178]
240.It was submitted by ground 2, paragraph 8(iii) that in directing the jury in those terms, the jury was “in effect wrongly directed that they could only take into consideration the DNA evidence if it was confirmed they were in fact the contributors to the DNA samples.” In fact, as the judge stated, he was doing no more than reminding the jury of the evidence of Dr Whitaker to that effect, as a result of questions posed of Dr Whitaker by the judge at the conclusion of his evidence:[179]
241.Those directions to the jury were entirely consistent and resonated with the directions that the judge had given the jury in respect of expert evidence generally earlier in the summing up:[180]
Dr Li Chi Keung-Handwriting 242.It was submitted by ground 2 paragraph 9(b) that, having regard to Dr Li’s findings in respect of some of the writing on the 2006 Will, apparently attributable to Mrs Nina Wang (the date), Mr Ng Shung Mo (the signature, the identity card number and the date), which were the subject of admitted facts, the judge had erred in failing to direct the jury that the writing in question was “possibly genuine writing” of those two persons.[181] In those circumstances, it was submitted that the judge ought to have directed the jury that, if they accepted “… Dr Li’s as possibly true, they must act on it to acquit the applicant.” 243.The admitted facts, on which the applicant relies, in respect of Dr Li’s evidence relevant to Mrs Nina Wang and Mr Ng Shung Mo were that Dr Li had formed the following opinions:[182]
244.It is to be noted, in context, that evidence was to be viewed together with the other admitted facts in respect of the evidence of Dr Li, in particular that the questioned signatures of both Mrs Nina Wang and Mr Winfield Wong were “highly probably” not written by them.[183] 245.At an early stage in his summing up, the judge had given the jury a warning in respect of their approach to the evidence of Dr Li respect of handwriting:[184]
246.There is no dispute that the judge came to give that direction at the request of Mr Kan, made in legal submissions at the close of evidence and prior to closing speeches.[185] 247.Later in his summing up, the judge repeated his general warning in respect of expert handwriting evidence and addressed the nature of Dr Li’s evidence:[186]
248.Of Dr Li’s evidence in respect of the apparent signature of Mrs Nina Wang on the 2006 Will, the judge said:[187]
249.Of the circumstances in which Dr Li expressed the opinion that he could neither confirm nor eliminate Mrs Nina Wang as the author of the date “Oct 16 2006”, the judge said:[188]
250.Of the circumstances in which Dr Li said that he could neither confirm nor eliminate that the questioned signature of Mr Ng Shung Mo or the identity card number and the controlled signature and the handwriting samples were written by the same person, the judge said:[189]
251.Of the circumstances in which Dr Li said that he questioned the date, namely “16/10/2006” may not have been written by the person who provided the controlled handwriting samples, namely Mr Ng Shung Mo, the judge said:[190]
252.It was submitted on behalf of the applicant that the opinion of Dr Li, in effect, that Mr Ng Shung Mo may not have written the date next to his name on the 2006 Will was the equivalent of him saying that it may have been written by Mr Ng Shung Mo. Conclusion 253.We are satisfied that the judge directed the jury correctly in respect of their approach to the evidence in respect of handwriting on the 2006 Will. First, given the qualified opinion that Dr Li had expressed in respect of the handwriting the jury could not conclude on that evidence alone that the will was forged. On the other hand, depending on what it was that the jury accepted of Dr Li’s opinions, it was evidence which they could consider together with all the other evidence in determining whether or not they were satisfied that the will was forged. In determining what it was that they accepted of Dr Li’s opinions they had to have regard to all his opinions, not selected opinions, together with all the other evidence. It would have been wholly erroneous for the judge to have directed that the jury to have regard to opinions which tended to drawing one conclusion only, without having regard to opinions which tended to drawing another conclusion. Regard was to be had all of the evidence. Mr Winfield Wong, Mr Ng Shung Mo and Mr Raymond Lau 254.In addressing the points made by the defence in the evidence of Mr Winfield Wong, the judge reminded the jury of differences between his evidence and his out-of-court statements. In his evidence-in-chief, he had said of the document handed to him by Mrs Nina Wang on 16 October 2006:[191]
255.By contrast, the judge reminded the jury that in cross-examination, Mr Winfield Wong had accepted in respect of his statement dated 7 April 2007 that:[192]
256.Earlier, in the context of giving examples of inconsistent statements, the judge had referred to the same issue in respect of Mr Winfield Wong:[193]
257.The complaints made out in paragraph 9(a)(i) and (ii) of ground 2 that the judge failed to mention that Mr Winfield Wong said that, in making his statement of 7 April 2007, he had been guided by Mr Sujanani and that the statement does not stipulate the beneficiary as being named as Mr Chan are simply not made out. As noted above, at an early stage in the summing up the judge reminded the jury of Mr Winfield Wong’s evidence in respect of the 7 April 2007 statement, which subject he return to later, namely:[194]
258.Similarly, the judge reminded the jury that Mr Winfield Wong had explained to the police, in a statement dated 10 March 2009, the apparent discrepancies between his statement to the police of 5 March 2009 and the statement of 7 April 2007:[195]
259.Contrary to the assertion made in ground 2 paragraph 9(a)(iii), the judge did not fail to remind the jury of the discrepancies in the evidence of both Mr Winfield Wong and Mr Ng Shung Mo in respect of the circumstances in which they attested the document signed by Mrs Nina Wang on 16 October 2006. Such discrepancies as there were in their accounts were made apparent in his summary of their evidence. It beggars belief that it was contended that their descriptions of the sequence in which they entered and left the conference room relative to each other and Mrs Nina Wang was a “key contradiction”. The witnesses were describing events that occurred almost seven years earlier. 260.Of Mr Winfield Wong’s account, the judge said:[196]
261.Of Mr Ng Shung Mo’s evidence in respect of the events of 16 October 2006, the judge said:[197]
262.Of more significance, perhaps, was the fact that, although Mr Ng Shung Mo said that at the meeting on 16 October 2006 he had not read the document that he had signed in the conference room with Mrs Nina Wang and Mr Winfield Wong, nevertheless in his witness statement for the probate proceedings, dated 13 April 2007, he had said that it provided for a specific gift of $10 million to a Mr Chan, whom he had named as Chan Chun Chuen in a police statement dated 4 March 2009. Of that issue, the judge reminded the jury that it was Mr Ng Shung Mo’s evidence that he was able to give the full name of the beneficiary because, “that was the name given to him by Mr Winfield Wong on 17 October when Mr Winfield Wong was explaining the contents of that will.” [198] 263.Earlier, the judge had reminded the jury that Mr Winfield Wong had also testified that such a meeting had taken place:[199]
264.Similarly, contrary to the contentions in ground 2, paragraph (a)(iv), the judge did remind the jury of the differences in the accounts of Mr Winfield Wong and Mr Raymond Lau of a conversation in which the former told the latter that he had witnessed a will of Mrs Nina Wang. The judge reminded the jury that Mr Winfield Wong said that he had had a conversation with Mr Raymond Lau, his principal at Messrs Ford, Kwan & Co. about the events of 16 October 2006, namely that:[200]
265.The judge reminded the jury that, by contrast, Mr Raymond Lau said:[201]
The effectiveness of the 2006 Will having regard to the provisions of the 2002 Will 266.Complaint was made in the applicant’s written Skeleton Submissions of the Applicant that the judge had failed to draw to the attention of the jury the evidence of Mr Winfield Wong and Dr Kung as to the likely ineffectiveness of the 2006 Will to result in the applicant becoming the beneficiary of the whole of the estate of Mrs Nina Wang, as alleged by the prosecution. Again, the complaint is simply not made out. 267.In respect of Mr Winfield Wong, having adverted to the fact that the 2006 Will addressed, “…all of the rest, residue and remainder of my estate, both real and personal”, the judge reminded the jury:[202]
268.In respect of Dr Kung, the judge said:[203]
269.Although no specific complaint was made in respect of Dr Kung’s testimony that Mrs Nina Wang had mentioned repeatedly that the entire estate would be given to the Foundation under her will, complaint was made in respect of Mr Joseph Leung’s testimony to the same effect. It was submitted that the testimony was “inadmissible, prejudicial hearsay…as to the alleged intention of NW of bequeathing her money to charity”.[204] Of his testimony, the judge reminded the jury:[205]
270.Needless to say, no objection was taken on behalf the applicant when the evidence was led from Mr Joseph Leung.[206] That, is hardly surprising, since it had been part of the applicant’s evidence in the probate proceedings that, in about 2002, Mrs Nina Wang had told him that she intended to make it known that she intended leaving her estate to charity. She wished that to be made known to improve her image, in particular in regard to the ongoing probate proceedings in respect of Mr Teddy Wang’s will.[207] She had told him that whether or not in fact she left her money to charity was a matter that she could decide later.[208] There is no merit in this ground of appeal. 271.Next, complaint was made that the judge had erred, not only in allowing Dr Molly Gong, Mrs Nina Wang’s sister, to give evidence of her dealings with Mrs Nina Wang, which evidenced her belief in feng shui, but also in reminding the jury of the evidence.[209] Further, she was allowed to testify that Mrs Nina Wang never mentioned the existence of the 2006 Will which, when she came to know of its existence and terms on 7 April 2007, she described as “..not in her sister’s style, tone, all or language.” [210] 272.Needless to say, once again, no objection was taken when the evidence was led from Dr Molly Gong. So, in respect of Mrs Nina Wang’s failure to keep scheduled medical appointments, Dr Molly Gong testified: [211]
273.Of the fact that she was unaware of the existence of the 2006 Will until 7 April 2007, she testified:[212]
274.Of her reaction to the revelation of its existence on 7 April 2007 and her discovery of its terms she said:[213]
275.In respect of Dr Molly Gong’s evidence of statements by Mrs Nina Wang that she acted on the advice of a master in feng shui matters the judge directed the jury:[214]
276.We are satisfied that the direction was wholly appropriate and that the evidence was properly admissible as going to the issue, not disputed by the applicant at trial, that throughout the period Mrs Nina Wang reposed considerable belief in the powers of feng shui, which belief she openly acknowledged. 277.The judge reminded the jury of Dr Molly Gong’s evidence that Mrs Nina Wang had never mentioned the existence of a 2006 Will and of her reaction to learning of the terms of the 2006 Will, namely “it was not in her sister’s style, tone or language.”[215] Of the complaint, made in oral submissions, that there was no evidence that Dr Molly Gong had any knowledge of Mrs Nina Wang’s “tone, style and language” in respect of a will, is to be noted that issue was not taken with her in cross-examination. Insofar as Dr Molly Gong was asked to explain that evidence in cross-examination, the following interchange ensued:[216]
278.Clearly, the evidence of Dr Molly Gong’s reaction to learning of the terms of the 2006 Will was of limited significance. We are satisfied that, in context, the judge did not suggest otherwise to the jury. Insofar as she explained her statement, that it was not in the “style, tone or language” of her Mrs Nina Wang, the only amplification she gave was that it was not in Chinese, as was the 2002 Will. Although, as the judge reminded the jury, Mrs Molly Gong had said that her relationship with Mrs Nina Wang was “very close” [217], she gave no further justification for her statement. Further, she noted, which was not disputed, that their sister Mrs Tong had been involved in drafting that will. The payment of $688 million to the applicant by Mrs Nina Wang on 13 December 2005 279.There is no merit in the complaint made by ground 2, paragraph 9(c) that the prosecution erred in asserting in its closing speech that loans had been raised in order to make the payment of the first of the three $688 million sums of money paid to the applicant by Mrs Nina Wang and that the judge had failed in not correcting the assertion in his directions to the jury. Not surprisingly, no such complaint was made to the judge by Mr Kan at the conclusion of the prosecution’s closing speech. 280.In his closing speech, Mr Perry said:[218]
281.It was an admitted fact that “loans facilities were used to effect the transfer” of $680 million on 13 December 2005 to a company controlled by the applicant.[219] 282.It was the applicant’s evidence in the probate proceedings in respect of the first transfer of $688 million to his benefit in December 2005 that Mrs Nina Wang:[220]
283.In his evidence, Mr Joseph Leung said:[221]
Ground 3: Fresh evidence 284.By ground 3, it was argued that the applicant’s convictions were unsafe in light of the fresh evidence available now to the applicant. By a Notice of Motion filed with the Court on 13 March 2015, the applicant sought leave to adduce that evidence pursuant to section 83 V of the Criminal Procedure Ordinance, contending that it was credible, admissible and that there was a reasonable explanation for the failure to adduce the evidence at trial. 285.Section 83 V provides:
Oral testimony 286.The applicant invited the Court to receive the oral testimony of :
287.It was submitted that if, at the time of the trial, it was known that Mr Koo could gave evidence relevant to the testimony of Mr Gilbert Leung, a witness called the prosecution, he would have been called as a witness for the defence. Similarly relevant, so it was contended, was the testimony of Mr Sidney Siu. More generally, it was contended that the evidence to be anticipated from Mr Chan Shu Chun was also relevant to the cross-examination conducted on behalf of the applicant of prosecution witnesses, Dr Kung, Mr Joseph Leung and Mr Ng Shu Mo. The trial 288.It was suggested that the relevance of the evidence lay in the cross-examination of prosecution witnesses at the applicant’s trial in respect of lots of land in Ng Chung Chai Village, Tai Po sold in June 2007 by a subsidiary of Chinachem to a company controlled by Mr Gilbert Leung. That was at about the time that he was called to give evidence on behalf of the Foundation in the probate proceedings. There was no dispute that, having bought the land in 1986 for $500,000,[222] Mr Gilbert Leung, had sold that land to Chinachem in 1988 for “$1 million odd”, for which price he repurchased it on 22 June 2007. In cross-examination of Mr Gilbert Leung, the Village Representative’s letter of 20 March 2007 [223] was put before him and it was suggested to him that he had been able to repurchase the land at the same price he had sold it for 19 years earlier, “… in return for giving evidence favourable in Chinachem in the probate proceedings”.[224] As the judge noted, Mr Gilbert Leung said that, “the two matters were entirely different and there was no such precondition to his giving evidence.” The same suggestion was made to and denied by Mr Ng Shung Mo.[225] Mr Joseph Leung was cross-examined about the circumstances in which the sale of the land was made.[226] The production of documents 289.In addition, Mr Wood sought an order from the Court, pursuant to section 83 V(1)(a) of the Criminal Procedure Ordinance, directing Mr Chan Shu Chun to produce all the documents in his possession in respect of the flow of monies in January 2009, which resulted in a credit to the bank account of the Foundation of $50 million. The respondent’s submissions 290.Mr Perry, for the respondent, opposed the applications. He characterised the evidence in support of the applications as being in a state of disarray, such that the application should be refused without further consideration. He submitted that the Court had received no submissions in respect of the impact of the fresh evidence on the safety of the convictions of the applicant, in particular having regard to the compelling expert evidence in respect of handwriting, ESDA, DNA and fingerprints. Then, he contended that Mr Koo and Mr Sidney Siu were not credible witnesses. Also, he said that the Court had received no reasonable explanation for why the defence had failed to adduce the evidence of Mr Koo and Mr Sidney Siu at trial. He pointed to the undisputed evidence that both of them had been interviewed by the applicant’s then solicitors during the probate proceedings in May and June 2009 respectively. They had been interviewed about the very matters in respect of which it was now sought to adduce fresh evidence. 291.Of the applications in respect of Mr Chan Shu Chun, having noted that they were based on the pleadings only, Mr Perry submitted that the pleadings were not evidence. There was no explanation as to why a statement of Mr Chan Shu Chun had not been placed before the Court. Further, there was no evidence of any attempts to obtain the underlying material sought to be the subject of a production order. Affidavits, affirmations and witness statements 292.In support of that application, the applicant invited the Court to receive his own affidavit and an affirmation of his brother, Mr Chan Chun Kwok Ricky each dated 10 December 2014. Also, filed with the Court on the same day, was a statement by Mr Chan Yiu Pun Jimmy a solicitor employed by those representing the applicant. On 6 August 2015, a second statement of Mr Jimmy Chan was filed with the Court. The applicant invited the Court to admit into evidence all those affidavits, affirmations and witness statements. 293.Then, on the afternoon of the second day of the hearing, namely Friday, 18 September 2015, Mr Wood presented to the Court a third statement of Mr Jimmy Chan and a statement of Mr Sidney Siu, both of which statements were dated 18 September 2015. 294.Finally, at the outset of the proceedings on 23 September 2015, the fifth day of the hearing, Mr Wood informed the Court that his instructing solicitors were in possession of three ‘Defences’ filed in the proceedings brought by Mr Chan Shu Chun. However, he said that they were subject to a ‘confidentiality’ restriction. He asked the Court to exercise its powers under section 83 V(1) to order production of the material. In his reply, at the conclusion of that day of the hearing, in response to a question from the Court, Mr Wood confirmed that no application had been made to the Registrar of the High Court, pursuant to Order 63 rule 4 of the Rules of the High Court, for the applicant to be permitted to inspect the documents. Candidly, he informed the Court that that was, “…probably because it did not cross the minds of anyone.” 295.Mr Ricky Chan affirmed that having received a letter, dated 20 July 2013, apparently from Mr Koo Hang Pang who asserted that he had information, “which may assist your elder brother clearing the case”, he had met Mr Koo on 27 and 29 July 2013. He made an audio recording of their conversations. The latter meeting was held at the offices of Haldanes, the applicants’ instructing solicitors, and was attended by Mr Jimmy Chan, amongst others. By a letter dated 26 August 2013, he reported the information provided to him by Mr Koo to the police. Subsequently, he made a witness statement to the police, dated 27 September 2013, addressing those issues. 296.No doubt, as a result of that report Mr Koo was questioned by the police. He made a statement, dated 25 September 2013. In the statement, he stated that he did not want to answer questions. Mr Wood said that he had been provided with those statements by the respondent on 14 September 2015. Mr Koo Hang Pang: the meetings of 27 and 29 July 2013 20March 2007 letter 297.Mr Ricky Chan said that Mr Koo told him that he was a villager and resident of Ng Chung Chai Village. He produced a letter dated 20 March 2007 on the letterhead of the Rural Committee Ng Chung Chai Village, Tai Po, purportedly signed and sent in his name as the Village Representative to the owners of stipulated Lots in the village.[227] He said that the letter had been sent to him attached to a letter dated 27 May 2009 from Haldanes. The text of the letter asserted that Koo Cheuk Wah and his family:
Mr Koo said that he had not signed the letter, he was not the Village Representative and knew nothing of the letter. 27 July 2013-Transcript 298.In the course of a meeting in a restaurant on 27 July 2013 with Mr Ricky Chan and Mr Bobby Chan, Mr Koo said that he had met the applicant at the offices of Haldanes.[228] Also, he said that he had sent the applicant a letter. He added, “He must be aware of what was the point in relation to the matter…..he was told at the Haldanes’ office.” [229] 299.The meeting at Haldanes’ office had resulted from a letter sent by Haldanes to Mr Koo dated 27 May 2007.[230] The letter stated:
300.The letter identified Mr Patrick Rattigan and Mr Eric Tang as persons with whom Mr Koo was invited to make contact. As stated, attached to the letter was a letter dated 20 March 2007 in the name of Mr Koo, as Village Representative of Ng Tung Chai Village, in respect of various lots of land in Tai Po. 301.Of the letter of 20 March 2007, Mr Koo said “This document was a forged one.” [231] When asked if the signature, apparently in his name, was his signature he said, “That’s not mine.” [232] He explained that he had not reported the matter to the police, because it was “not the appropriate timing.” [233] Mr Koo went on to indicate that, from reading the newspapers, he was aware that the document had been exhibited at the trial of the applicant and of the cross-examination by Mr Kan of Mr Gilbert Leung on the issue.[234] Of the nature and effect of the 20 March 2007 letter, Mr Kan said, “Perverting.. it is exactly perverting (the course of justice). …Forging documents.” [235] He suggested that an application be made for bail for the applicant and suggested that there be “an immediate appeal.” [236] When upbraided for not having approached the defence during the trial with the information, Mr Koo repeatedly said “It was not appropriate at that time.” [237] 302.Noting that Mr Gilbert Leung had purchased the land for $1,010,000, and that he had been a witness for the Foundation, he asserted that, “It was 100% transfer of benefit. You did in exchange for him to be the witness.” [238] Having been referred apparently to the 20 March 2007 letter and having confirmed that his apparent signature was not in fact his, the following exchange occurred:[239]
Later, the issue was addressed again:[240]
303.Finally, having agreed to meet the Mr Ricky Chan a lawyer’s office, Mr Koo said, “If at that time I help him to settle this matter, I will leave Hong Kong.” [241] 29 July 2013 meeting 304.For his part, Mr Jimmy Chan confirmed that he had attended the meeting of 29 July 2013 at the offices of Haldanes, together with Mr Ricky Chan and Mr Koo. The latter had provided him with a recording of the meeting, which he had caused to be transcribed. 305.The meeting of 29 July 2013 was attended by numerous other people, including Ms Anita Wong and Mr Kan, his counsel at trial. Mr Koo confirmed that he had met the applicant on an earlier occasion at the offices of Haldanes.[242] The following exchange occurred, in which Mr Kan responded to questions:[243]
306.Having confirmed that he had not signed the letter of 20 March 2007, nevertheless Mr Koo went on to say of the conference at Haldanes:[244]
307.Mr Koo said he had another meeting with a solicitor called Mr Lai at the Shangri-La Hotel. However, when asked whether or not he had told Mr Lai that the signature on the letter of 20 March 2007 was not his signature, Mr Koo said, “He didn’t ask me this question at that time.” He confirmed that he had not revealed that information.[245] Mr Koo said that the information in the letter of 20 March 2007 as to the occupation of the land was, “not true”.[246] He added that at the request of Mr Gilbert Leung, who paid him $10,000, he had arranged for scaffolding to be erected on the land and photographs taken to record its condition, which were then sent to Chinachem.[247] Further, he said that the date on the letter, namely 20 March 2007 was incorrect. He had dealt with Mr Gilbert Leung in May 2007.[248] Whilst he said that he was prepared to report the matter to the ICAC,[249] he was not prepared to permit the documents that he had produced at the meeting to be photocopied.[250] 308.Although Mr Ricky Chan said that he had written to Mr Koo on 27 August 2014 inviting him to meet, so that a witness statement could be drafted in respect of what Mr Koo had to say about Mr Gilbert Leung, no such meeting had taken place. Mr Koo had telephoned him on 24 September 2014, acknowledging receipt of the letter. Mr Koo said that he “needed to consider”. On 13 October 2014, Mr Koo said that he would be leaving Hong Kong for “10 to 20 days”. On 7 November 2014, Mr Koo telephoned Mr Jimmy Chan again and asked to contact Mr Ricky Chan. Although he was asked again to make a statement, to which request he gave a positive answer, he terminated the telephone call. 309.Mr Jimmy Chan said that he next tried to contact Mr Koo on 9 September 2015. Finally, he was successful on the afternoon of 10 September 2015. However, Mr Koo “refused to attend court on the 17 September 2015.” 310.Mr Jimmy Chan said that, as noted earlier, on 14 September 2015 the prosecution had disclosed a statement made by Mr Koo to the police on 25 September 2013. In it, Mr Koo indicated that he did not wish to answer any questions. 311.In his affirmation, filed with the Court on 10 December 2014, the applicant asserted that he had been present at a meeting in the conference room of Haldanes at which Mr Koo, Mr Midgley and others had been present. Although he was unable to remember the date, the applicant said it was during the probate proceedings. Of the Village Representative letter, dated the 20 March 2007, the applicant said that Mr Koo “…indicated that he had nothing to say about the said letter. As a result, Koo left the meeting in a short period of time.” [251] Mr Sidney Siu 312.Until the Court was provided with the witness statement of Mr Sidney Siu on the second day of the hearing, such information as was provided to the Court was in the form of a ‘Conference Note’ of a conference held with him at Haldanes, at which Mr Jonathan Midgley and Ms Frances Lok attended, on 26 June 2009.[252] They were respectively the applicant’s solicitor and junior counsel in the probate proceedings. Mr Midley was the applicant’s solicitor in the criminal proceedings until November 2011. There was no dispute that at the time of the conference the applicant was giving evidence in the probate proceedings. He did so from 24 to 30 June 2009. 313.In his affidavit, the applicant asserted that neither he nor his current solicitors, who represented him in his criminal proceedings in the Court of First Instance, were aware of the fact of a conference at Haldanes with Mr Sidney Siu on 26 June 2009 or of the Conference Note.[253] The same was true of Messrs Li & Lai, who were his solicitors in the criminal proceedings in the Magistracy.[254] He said that the Conference Note had been provided to his solicitors, together with two other conference notes, dated 17 and 21 May 2009, by Baker & McKenzie after the commencement of a defamation action on 10 July 2014, in which they are acting for Edmond Chang. He said that he believed that they had been produced by Ms Francis Lok during her testimony. She was his junior counsel at the probate proceedings. 314.The Conference Note of 26 June 2009 recorded that Mr Sidney Siu said that Mr Gilbert Leung told him he had “…some information to help Chinachem. That he would be the witness”, but that “there should be some return for doing that.” [255] Mr Sidney Siu said that he was present on 28 April 2007 when Mr Gilbert Leung gave a statement at the offices of JSM. Mr Joseph Leung, of Chinachem, and Ramesh Sujanani were also present. Some days afterwards Mr Gilbert Leung discussed with him a plan to make money in return for his assistance to Chinachem. That involved him re-purchasing land in Tai Po, which he had purchased first of all “under the Teddy era.” Mr Gilbert Leung told him that he had rejected Joseph Leung’s suggested price of “0.5 million” as being too obvious. Mr Gilbert Leung said that “the concept of adverse possession” would be used as an excuse to justify the sale to him at undervalue to market value. He said that:[256]
315.The Conference Note concluded with observations made by Mr Jonathan Midgley and Ms Frances Lok of Mr Sidney Siu. It was observed:[257]
316.Obviously, the ongoing probate proceedings were the immediate context of the meeting with Dr Sidney Siu. It appears that the negative assessment of him as a witness was relevant to a consideration by the applicant’s then solicitors and junior counsel of whether or not to call Mr Siu as a witness in the probate proceedings. Notes of a meeting on 17 May 2009 317.The notes of a meeting on 17 May 2009 describe an earlier meeting with Mr Sidney Siu at Haldanes’ office at which the topic of settlement of the probate litigation was discussed.[258] Those described as attending were: the applicant, Mr Jonathan Midgley, Ms Frances Lok, Ms Esther Chan and Mr Sidney Siu. Of the latter, it was said that he: “… purports to represent a third party in these proceedings”. 318.Mr Sidney Siu said of Ms Chan that she had:[259]
Mr Siu said that Ms Chan proposed “a service fee”, stipulated as “5% or 4% to be deducted” from a settlement of “5B”. Having stated that, “…all I want is to have the service charge”, Mr Siu went on to say, “…5B, including the commission, I say 2%”. The issue of a settlement was left unresolved at the meeting. Mr Sydney Siu’s statements to the police: 7 November 2014 and 11 June 2015 319.Mr Sydney Siu made statements to the police on 7 November 2014 and 11 June 2015. In the former statement, he said that, although he had accompanied Mr Gilbert Leung to the premises, he had not taken part in the discussions between Mr Joseph Leung and Mr Gilbert Leung at JSM in April 2009.[260] He said that a few days after the meeting, Mr Gilbert Leung told him that he intended buying some land in the name of his company, Land Perfect Limited, in Ng Tung Chai Village in Tai Po and asked him to provide the capital in return for which he would be given shares. He declined, but agreed to lend the money. Nothing came of that proposal. He identified the land as being that described in the letter of 20 March 2007. He said that he did not know Mr Koo Hon Pang, described in the letter as that Village Representative, or Mr Koo Cheuk Wah. 320.In his statement of 15 June 2015, Mr Sidney Siu said that he had known Mr Gilbert Leung since the 1970s. Both of them knew the applicant. He said that Mr Gilbert Leung hated the applicant for having become rich, having been introduced by the applicant to Mrs Nina Wang. Mr Sidney Siu said that in 2007, at Mr Gilbert Leung’s request he had accompanied him to a meeting at a law firm, where the latter had a discussion with Mr Joseph Leung in his absence. Soon afterwards, Mr Gilbert Lam told him that he intended to buy some land in Ng Tung Chai Village, which a friend being named as Kwan had sold to Chinachem earlier. Since the disappearance of Mr Teddy Wang no one had taken care of the land. Mr Gilbert Leung said that he could get help from a villager by having the villager write to Chinachem to assert that they had been using the land for over 10 years. He would obtain photographs which would show that the land had been occupied, so that the land could be bought on the basis of ‘adverse possession’ of the land. For his part, Mr Sidney Siu said that he rejected Mr Gilbert Leung’s offer that he participate in the development of a columbarium on the land. 321.Having been shown the Conference Note dated 26 June 2009, Mr Siu said that it was incorrect in stating that he had suggested the meeting. In fact, Ms Esther Chan had invited him to attend the meeting.[261] Finally, Mr Sidney Siu said that he did not know the name of the villager described by Mr Gilbert Leung or in fact if the villager had helped Mr Gilbert Leung.[262] Of Mr Gilbert Leung’s evidence in the probate proceedings, Mr Siu said: [263]
Mr Sidney Siu’s statement dated 18 September 2015 322.In his witness statement dated 18 September 2015, Mr Sidney Siu said that Mr Gilbert Leung had told him that he wanted to give evidence for “…Chinachem as a witness. He thought that he should be to obtain some benefit therefrom.”[264] Amongst the proposals that Mr Gilbert Leung made to obtain a benefit was an invitation to him, which he refused, to fund his purchase of: [265]
323.Mr Siu said that, prior to making the statement, he had never told the applicant or his solicitors the information contained in the statement.[266] 324.Of his two statements to the police, Mr Siu explained the absence of the account provided in his witness statements by saying that he had not made mention of it because:[267]
Chan Shu Chun 325.Amongst the material which the Court was invited to receive encompassed in the witness statements of Mr Jimmy Chen were the pleadings in ongoing civil actions in the Court of First Instance, inter alia, between: (i) HCA 832/2014
(ii) HCA 114/2015
(iii) HCA 113/2015
(iv) HCA 115/2015
(v) HCA 118/2015
(vi) HCA 120/2015
326.It was submitted that the relevance of this material lay in the fact that Dr Kung, Mr Joseph Leung, Mr Winfield Wong and Mr Ng Shung Mo were witnesses called for the prosecution at the applicant’s trial. At trial, it was alleged that they were “…involved in a dishonest conspiracy”. It was contended that this evidence tended to show that the witnesses “…through fraud, false accounting and a sham sought to procure funds to fund the litigation against the applicant” in the probate proceedings. 327.The writs issued in items (ii) to (vi) resulted from the transfer of money, over $122 million, from Right Margin in January 2009. 328.The action at item (i) brought against Dr Kung and others arises from the alleged fraud in the sum of $50 million practised on the plaintiffs, which monies it was alleged were channelled to the Foundation to fund the probate action against the applicant. Against Philip KH Wong, Kennedy YH Wong & CO it was alleged that they breached their duty to the plaintiffs and dealt with the monies having reasonable grounds to believe that they were the proceeds of an indictable offence. 329.The action brought against Mr Joseph Leung and Mr Ng Shung Mo by Right Margin was on the basis of their breach of duty of care and skill and/or a fiduciary duty owed to Right Margin. Mr Winfield Wong was a partner of the firm of solicitors Philip KH Wong, Kennedy YH Wong & CO. The action brought against the firm was on the basis of their alleged breach of a retainer with Right Margin and/alternatively or contractual tortious negligence arising from their role in the payment of those monies. The action brought against Chan Shu Chun arose from the alleged breach of a guarantee in respect of monies due and payable to Right Margin. 330.Although Mr Jimmy Chan asserted, in his affirmation dated 22 October 2014, that he had[268] “…recently become aware” of the litigation launched by Mr Chan Shu Chun against the four defendants and although he returned to that subject in his affirmation dated 31 July 2015, the only evidence to which he referred of steps taken to contact Mr Chan Shu Chun was in September 2015. No witness statement of Mr Chen Shu Chun has been provided to the Court. No evidence has been filed of any attempts to obtain the material underlying the litigation. As noted earlier, during the hearing Mr Wood informed the Court that his solicitors had copies of three of the Defences filed in those proceedings, saying that they were subject to an undertaking as confidentiality. However, he provided no evidence of how, what or when the material had been provided and why it was restricted by an undertaking as confidentiality. Apart from indicating that no thought has been given to the matter, he had no answer to the enquiry as to why no application had been made to the Registrar for inspection of the material filed by the defence, pursuant to order 63 rule 4 of the Rules of the High Court. 331.For his part, Mr Wood submitted that the Court should order not only that Mr Chan Shu Chun should give oral evidence and produce the documents sought from him but also it should direct the police to make enquiries into the subject matter of the litigation. In context, that is in circumstances where not only has no witness statement on Mr Chan Shu Chun being provided to the Court but also no explanation given as to why there was no such statement and what, if any, efforts were made and when in that regard. A consideration of the submissions 332.For the purposes of considering the applications to receive the oral testimony of witnesses and the application that the Court order the production of documents, the Court has received, de bene esse, the affidavit, affirmations and statements put forward by Mr Wood. 333.There is no dispute that those then representing the applicant had interviewed both Mr Koo and Mr Sidney Siu during the probate proceedings in May and June 2009 respectively. The enquiries made of them included the circumstances in which Mr Gilbert Leung, then a witness for the Foundation, had come to purchase land in Ng Tung Chai Village in Tai Po in June 2009. Clearly, the purpose of those meetings was to determine whether or not they were able to provide evidence relevant to the defence case in the probate proceedings. At issue, in particular, was whether or not Mr Joseph Leung and Mr Ng Shung Mo had permitted the sale of the land to Mr Gilbert Leung as part of an arrangement to reward him from giving evidence favourable to the Foundation. In the event, neither of them was called in the probate proceedings. 334.Relevant to the application for leave to call fresh evidence is first the question of why it was that those witnesses were not called in the criminal trial, which commenced about four years later. The same issues were raised in the defence case in the latter proceedings. Secondly, is the issue of their credibility. Finally, there is the issue of the impact of the fresh evidence on the applicant’s convictions in light of the grounds of appeal. Mr Koo - explanation for not calling him 335.There having been no dispute that Mr Koo had been present at a meeting, which had taken place at Haldanes in May 2009, attended by the applicant and Mr Midgley, the latter was clearly a witness relevant to the issue of what Mr Koo said about Mr Gilbert Leung in respect of the purchase of the Tai Po land sale and purchase. It is clear from the Attendance and Conference Notes of meetings at Haldanes that a proper professional practice was in place to record those events. Yet, no statement has been made available to the Court from Mr Midgley about that meeting with Mr Koo. Indeed, no evidence was made available to indicate whether or not any enquiry was even made of Mr Midgley about the existence of such records or his own memory of those events. Although the matter was raised by the Court during the hearing, nothing was done to redress the absence of that material. 336.As Mr Perry pointed out, those representing the applicant at his criminal trial would have been aware of the findings made by Lam J in his judgment in the probate proceedings in respect of the suggestion that the sale of the land in Ng Chung Chai Village, Tai Po was an advantage given to Mr Leung in exchange for his evidence in the probate proceedings. Noting that the issue was a, “collateral issue relevant only to credit”, Lam J determined that the applicant, “…did not have a solid ground for suggesting an advantage was given to Gilbert Leung. There was a valuation report showing the sale was not conducted at an undervalue and Joseph Leung explained why the sale was in the interests of the Chinachem Group.” [269] Whilst the issue in the civil proceedings was a collateral issue, nevertheless it raised the question of an interest/bias in Mr Gilbert Leung in giving his testimony and clearly it was highly arguable that Mr Koo’s evidence was admissible in rebuttal of Mr Gilbert Leung. 337.Further, in his unsuccessful application for leave to appeal to the Court of Final Appeal in the probate proceedings, the applicant had put before the Appeal Committee[270] fresh evidence, which it received de bene esse, relating to Mr Winfield Wong, namely three witness statements made to the police by him in March 2009.[271] As Mr Perry suggested, in those circumstances it was to be expected that the applicant and those advising him would do all they could to ensure that all material relevant to the defence case was available at the criminal proceedings. 338.The relevance of Mr Koo to the defence case as advanced in cross-examination of Mr Gilbert Leung in respect of the letter of 20 March 2007 was obvious. First, it was suggested that Mr Koo was not and never had been the Village Representative. Secondly, it was suggested to the Village Representative was a Mr Yau.[272] Thirdly, it was suggested that the purpose of the letter was to claim adverse possession of the land.[273] The relevance of Mr Gilbert Leung’s response, that the question ought to be directed to the author of the letter, would have been obvious to those representing the applicant. Credibility Mr Koo 339.There exists a material and obvious inconsistency in the explanations advanced by Mr Koo in the meetings of 27 and 29 July 2013. On the former occasion, he asserted in terms of his meeting with the applicant and Mr Chan in 2009, that Mr Midgley knew that the contents of the letter of 20 March 2007 were false and that he had not signed the document. By contrast, at the meeting of 29 July 2013, Mr Koo asserted that because the meeting was too noisy and there were too many people he had not said anything about the falsity of the letter or the fact that he had not signed the letter. In context, it is to be remembered that the whole purpose of the meeting was to address that very issue. 340.Further, it does not enure to the benefit of a consideration of the credibility of Mr Koo that, when asked about these events by a police officer in September 2013, he had declined to answer any questions. 341.Next, it is clear from the transcripts of the 27 and 29 July 2013 meetings that, having initiated contact with Mr Ricky Chan, Mr Koo was actively marketing himself as a witness. He suggested that his evidence could be used as the basis not only for an appeal but also for an application for bail pending appeal.[274] His statement that, having helping the applicant “settle this matter”, then “I will leave Hong Kong” is consistent with an implied invitation for compensation or reward. Mr Sidney Siu 342.As far as Mr Siu is concerned, it is clear from the Conference Note of 26 June 2009 that Mr Jonathan Midgley and Ms Frances Lok took a negative view about him as a potential witness. However, complaint is made on behalf of the applicant that neither he nor his solicitors at the criminal trial knew of the fact of the meeting let alone the contents of the Conference Note until 2014. In support of the applicant’s bare assertion in his affidavit to that effect, reliance was placed on correspondence from his solicitors, who where his solicitors in the criminal trial, to the effect that the Conference Note was not in the material passed onto them from Haldanes. What is singularly missing from the material advance before the Court is not only evidence from Mr Midgley and Ms Frances Lok but also evidence of any attempt whatsoever to contact them. Clearly, they were best placed to provide an account of the information provided to them by Mr Siu at their meeting with him on 26 June 2009 and by them to the applicant. No suggestion has been made, and none could be, that they were and are not available. 343.Whilst it is readily understandable that the applicant was not present at the meeting with Mr Sidney Siu on 26 June 2009, given that he was in the middle of his evidence in the probate proceedings, it would have been extraordinary if the information provided by Mr Sidney Siu and the assessment of him as a potential witness for the defence, had not been passed on to the applicant at the conclusion of his evidence. In that context, it is to be noted that the subject matter was of sufficient interest to the applicant that he accepted that he was present at the meeting at Haldanes with Mr Koo about a month earlier when the same subject was addressed. Clearly, and perfectly understandably, the applicant took a personal interest in the steps taken to marshal the defence case in the probate proceedings. There is every reason to think that he would have taken an even greater interest in respect of the criminal case. 344.The professional care with which Mr Midgley and Ms Frances Lok dealt with the matter is evident from the detailed note of the information provided by Mr Sidney Siu and their subsequent analysis and determination of his worth as a witness. In that context, it is to be noted that Haldanes continued to be the applicant’s solicitors after he had been charged on 26 May 2011 and remained his solicitors until November 2011. 345.Central to a consideration of the credibility of Mr Sidney Siu are the witness statements that he made to the police, in particular his statement that the evidence that Mr Gilbert Leung had given in the probate proceedings was true. As noted earlier, in order to extricate himself from that assertion, Mr Sidney Siu claimed in his statement of 18 September 2015 that, during the making of his two statements to the police:[275]
346.Mr Siu went on to assert that he had not attended either the civil probate proceedings or the criminal trial of the applicant, so that “I am therefore not in any position to comment on the accuracy of testimony of Leung Kam Ho.” 347.It is inherently improbable and implausible that police officers would interview Mr Sidney Siu as a potential witness not once, but twice, but on each occasion encourage him not to say anything about the matters about which they were enquiring. Further, it is to be noted that on each of the two police statements the applicant signed the statement immediately beneath the declaration not only that it was, “…true to the best of my knowledge and belief” but also that it was made in the knowledge that, if he knew that it was false or that he did not believe it to be true, he was liable to prosecution for a criminal offence. So, it was in those circumstances that he stated that the evidence of Mr Gilbert Leung about Mr Koo was true. Mr Chan Shu Chun 348.Given that the Statement of Claim filed by Mr Chan Shu Chun, and the other Statements of Claim filed by Right Margin against the various defendants, including witnesses called by the prosecution in the criminal trial of the applicant, all post-date the applicant’s criminal trial by a year or more, we are satisfied that the material, whatever it may be, was not available to the applicant at the time of the trial. However, in the absence of any witness statement from Mr Chan Shu Chun, for which absence there is no explanation, and in the absence of any underlying material at all, it is not known what his evidence might be. The bare assertions in the pleadings do not constitute evidence. 349.Reliance was placed on the statement of truth signed by Mr Chan Shu Chun verifying the contents of the pleadings. The reliance was misplaced. For the purpose of such a statement of truth is to provide that the consequence of making a false statement without honest belief in its truth is punishable by contempt.[277] The statement of truth does not turn the pleadings into evidence. 350.The suggestion by Mr Wood that the Court direct the police to make enquiries into the circumstances underlying the litigation involving Mr Chan Shu Chun was extraordinary, given the complete absence of any evidence to support the bare assertions in the pleadings. On appropriate occasions, at the end of a trial or other hearing a court may refer the papers to the Director of Public Prosecutions for his consideration as to what, if any, action ought to be taken in light of evidence adduced before the Court. Here, the Court received no evidence. It is no part of the Court’s duties, nor does it have the power, to direct the law enforcement authorities to make enquiries on the basis of the pleadings only in civil litigation. Conclusion 351.For the reasons set out above, we were satisfied that it was not appropriate for the Court to exercise its powers under section 83 V(1) of the Criminal Procedure Ordinance and, as we indicated at the hearing, we declined to make the orders sought by Mr Wood. 352.We grant the applicant leave to appeal in respect of the grounds of appeal in relation to the judge’s directions as to lies. However, for the reasons set out above, we are satisfied that there are no merits in the grounds of appeal against conviction. Accordingly, the appeal against conviction is refused. Ground of Appeal against Sentence 353.Mr Wood submitted that the sentence of 12 years’ imprisonment on each count, ordered to be served concurrently was manifestly excessive. He contended that the trial judge took into account irrelevant material, and gave undue weight to the charitable status of the victim and to the feelings of the deceased:
354.It was submitted that the judge erred in having regard to those matters, since the applicant was not charged with any misconduct in his dealings with Mrs Nina Wang in her lifetime. 355.Further, the judge failed to give sufficient weight to the fact that the attempt at fraud had failed. No monies were obtained under it. Save for the costs of the proceedings, which the applicant was ordered to pay, the true beneficiaries did not suffer loss, for the forgery was uncovered. 356.In concluding that this was “the worst type of offence which comes before the court”, the judge erred. Clearly, a case where the money had been obtained and dissipated, so that it was beyond the reach of the charitable foundation, would be a worse case. So, the judge was wrong to conclude that the circumstances justified “…the application of the maximum sentence for forgery as a starting point.” 357.By an amended ground of appeal, filed with the Court on the sixth day of the hearing, Mr Wood contended that the judge erred in sentencing in adverting to the “vast fortune you would have obtained had your crime been successful.” It was submitted that, “Whether it is “vast” or not was a question unknown.” Mr Wood pointed to the Determination of the Appeal Committee of the Court of Final Appeal, refusing the applicant leave to appeal in the civil proceedings, in which Ribeiro PJ said:[278]
358.Mr Wood submitted that “…the CFA could not even be satisfied of whether the Applicant would be entitled to amount of more than $1 million.” 359.Finally, it was submitted that the sentences imposed on the applicant were outwith the range of sentences imposed for failed frauds.[279] Reasons for Sentence 360.Having noted that the maximum sentence for each of the offences under the Crimes Ordinance for which the applicant had been convicted by the verdict of the jury was 14 years’ imprisonment, the judge observed that, “…serves to show how, in some circumstances, forgery can be an extremely serious offence.” [280] 361.Of the applicant’s conduct, the judge said:[281]
362.In the result, the judge determined of the applicant:[282]
Extraordinarily, notwithstanding that Mrs Wang must have been extremely sick and frail in her final days, you still managed to get out of her, two days before she died, no less than £30 million.” 363.Of the advantage that the applicant had taken of Mrs Nina Wang’s vulnerability, the judge said:[283]
364.Of the applicant’s sustained and protracted attempts to propound the validity of the 2006 Will, the judge said:[284]
Starting point for sentence 365.In stipulating 14 years’ imprisonment as the appropriate starting point to be taken for sentence for each of the offences, the judge said:[285]
Discount 366.Of the issue of the element, if any, of discount it was appropriate to afford the applicant from the starting point taken for sentence, the judge noted: [286]
367.However, the judge went on to determine that it was appropriate to afford the applicant a discount from that taken as the starting point for sentence to reflect the manner in which the defence had been conducted at trial and the element of delay in bringing the matter on for trial. Conduct of the defence 368.Having noted that the trial had been fixed for 60 hearing days, the judge said:[287]
369.Of the manner in which the applicant’s case had been presented, the judge said:[288]
370.In consequence, the judge determined:[289]
Delay 371.Of the issue of the delay in bringing the matter on for trial, the judge said:[290]
372.Of the delay, resulting from the decision of the defence to seek a preliminary enquiry, the judge said: [291]
373.In consequence, the judge determined:[292]
374.In the result, the judge said that he afforded the applicant a discount of two years’ imprisonment from that taken as the starting point for each of the offences, observing:[293]
Sentence 375.The judge ordered that the sentences to be served concurrently. Accordingly, the total sentence imposed on the applicant was 12 years’ imprisonment. A consideration of the submissions 376.There is no doubt that the applicant’s attempts to propound the 2006 Will as valid were both protracted and sustained. From the time that he produced the 2006 Will first in April 2007, the applicant persisted in his endeavours to have it determined valid, until the Appeal Committee of the Court of Final Appeal ruled against him on 28 October 2011. In doing so, he adduced his own multiple witness statements into evidence in the probate proceedings and gave oral testimony in support of his case. That evidence was roundly rejected in his judgment by Lam J. 377.We are satisfied that the judge was correct to have regard to that evidence and, in particular, to the consequences in costs to the Chinachem Foundation in the probate proceedings as relevant to determine the appropriate starting point for sentence. The applicant had done all that he possibly could to propound the forged 2006 Will. Not surprisingly, the judge found that he had shown no remorse. The value of the applicant’s interest in the estate of Mrs Nina Wang 378.With respect to Mr Wood, the Determination of the Appeal Committee of the Court of Final Appeal is of no assistance in determining the issue of the value of the estate, and more particularly the benefit that the applicant sought to obtain, if he had succeeded in having the forged 2006 Will determined to be valid. In his judgment, Ribeiro PJ noted:[294]
379.Having dismissed reliance on the first limb of section 22(1)(a) as unarguable, Ribeiro PJ went on to say that the applicant: [296]
380.In addressing the submission, Ribiero PJ said: [297]
381.Clearly, the issue addressed by Ribeiro PJ was simply whether the order sought by the applicant:[300]
382.In determining that it did not, the Appeal Committee of the Court of Final Appeal did not determine that the applicant’s claim to the estate of Mrs Nina Wang was of a value of less than $1 million. It merely determined that it was unquantified, pending the resolution of outstanding issues identified by Lam J in his judgment. 383.As Le Pichon JA noted, in the judgment of the Court of Appeal refusing the applicant leave to appeal to the Court of Final Appeal from the judgment of Lam J, the applicant’s position as to his entitlement under the 2006 Will to the estate of Mrs Nina Wang was:[301]
384.As Mr Perry pointed out, the assumed valuation of the estate stipulated in a letter from JSM to Haldanes dated 25 July 2007, in which those representing the Foundation responded in tentative negotiations to reach a settlement of the litigation, was a lower figure of $50 billion and a higher figure of $90 billion.[302] In response to his enquiry of Mr Perry prior to sentencing, the judge was informed that, although there was “no formal evidence”, the prosecution understood that the value of the estate of Mrs Nina Wang was in the region of $83 billion.[303] 385.We are satisfied that the factor relevant to the issue of sentence is the value of the estate that the applicant intended and attempted to secure for himself. Clearly, that was all the estate of Mrs Nina Wang, which on any view was huge. The judge was entitled to have regard to what he described as, “the vast fortune”, which the applicant sought to secure for his own benefit. 386.Although the judge determined that the evidence demonstrated clearly that the applicant was a charlatan, who had inveigled his way into the trust of Mrs Nina Wang, as a result of which he had been rewarded with the payment of over $3 billion in her lifetime, he made it clear that was not relevant to the determination of sentence for the offences of which the applicant had been convicted, stating that it was for that conduct, “not your earlier conduct… for which I must sentence you.” Nevertheless, we are satisfied that the applicant’s earlier conduct gave context to the circumstances in which he propounded the 2006 Will. The starting point for sentence: the maximum sentence 387.As noted earlier, in adopting as the starting point the maximum sentence available in respect of each of the counts of which the applicant had been convicted, the judge acknowledged that, he had “…adopted a high starting point.” [304] In doing so, the judge stated that he was satisfied that the circumstances of the commission of the offence fell within the “broad band” of the worst kind of case for which the maximum sentence was appropriate.[305] Noting that the applicant’s conduct involved an “extremely well executed and planned forgery” [306] and that, if it had been successful, “it would have cheated and deprived”[307] a charitable foundation of the means of carrying out charitable works, the judge said that he would have had “extreme difficulty in thinking of ” [308] a worst possible case. Obviously, in having regard to those factors, the judge was alive to the fact that, despite his persistent best efforts, the applicant has failed to secure any benefit from the estate of Mrs Nina Wang that he sought by his making and using the forged 2006 Will. 388.Nevertheless, with respect to the judge, the failure of the applicant’s persistent efforts to secure the benefit of the estate by the use of the forged will, pointed to an obviously worse circumstance in the commission of the offences, namely success in that endeavour followed by dissipation of the assets. In those circumstances, the Foundation would have been conclusively deprived of the use of those assets in charitable works. Conclusion 389.In the result, we are satisfied that the judge fell into error in stipulating a starting point for sentence for each of the counts of 14 years’ imprisonment. In our judgment, notwithstanding the very grave circumstances of the commission of the offence it was not appropriate to stipulate the maximum sentence available for each of the offences. We are satisfied that the appropriate starting point for sentence for each of the counts was 13 years’ imprisonment. Discount 390.As noted earlier, in affording the applicant a discount of two years’ imprisonment from the starting point he stipulated of 14 years’ imprisonment, to reflect the fact of the conduct of the defence at trial and the delay in bringing the applicant to trial, the judge acknowledged, “That may seem a generous discount for these factors.” 391.Although the judge identified two factors in stipulating a discount of two years’ imprisonment, he did not distinguish specifically in weight between either factor. Having acknowledged that the trial had occupied only half the estimated length of trial, the judge acknowledged that the defence had been conducted, “…sensibly and sensitively, concentrating on the essentials needed to put forward your case.” The judge was entitled to say, as he did, that the applicant was entitled to credit in consequence of the manner in which the defence had been conducted. 392.By contrast, although the judge noted that the applicant had first propounded the 2006 Will in April 2007 and that it was not until May 2013 that the criminal proceedings began, as noted earlier the judge went on to exonerate the prosecution of any culpability for delay:[309]
393.Moreover, the judge determined specifically that the defence required a “wholly unmeritorious”[310] preliminary enquiry in the Magistracy, with the result that “…the case became unnecessarily stalled in the Magistrates Court in 2011 and 2012”. Understandably, the judge determined of that period, “Any delay since your arrest on 3 February 2010, has been entirely of your own making.” [311] Albeit that the judge acknowledged that the fact of delay in arresting the applicant was merely an element in mitigation which, “I throw into the equation” [312], with respect to the judge, it is very difficult to see how in those circumstances the applicant was entitled to any discount in sentence on that basis. That element of delay was entirely attributable to the applicant’s conduct in persisting in propounding the forged 2006 Will. Conclusion 394.We are satisfied that the judge fell into error in affording the applicant a discount of 2 years’ imprisonment from that stipulated as the starting point for sentence. We are satisfied that the applicant was entitled to a discount of 12 months’ imprisonment, from a starting point of 13 years’ imprisonment to reflect the manner in which his defence was conducted. He was not entitled to any discount for the element of delay. 395.In the result, we are satisfied that the sentence of 12 years’ imprisonment imposed on each of the counts was entirely appropriate. Accordingly, we refuse the application for leave to appeal against sentence. Costs 396.Counsel for the respondent having indicated at the hearing that the respondent wished to apply for an order of costs in its favour, if the appeals were dismissed, we order that the respondent file such written submissions in support of that application with the Court, as it may wish to do so, within 10 days hereof and that the appellant, if he opposes the application, file such written submissions with the Court, as he may wish to do so, within 10 days thereafter. The respondent is to file with the Court any written reply within seven days thereafter. The written submissions of the parties are to be limited to 10 pages and the reply to five pages. In other respects, the submissions are to comply with the provisions in respect of written submissions of Practice Direction 4.2.
Mr David Perry, QC, Counsel on fiat, Ms Anna Y. K. Lai SADPP and Mr Eric Tsoi, Counsel on fiat, of the Department of Justice, for the respondent Mr James Wood, QC, Mr Robert S. K. Lee, SC and Ms Anita L. C. Wong, instructed by Cheung & Liu, for the applicant [1] Appeal Bundle; page XI, paragraph 1. [2] Appeal Bundle; page XI, paragraph 3. [3] Appeal Bundle; page XI, paragraph 5. [4] Appeal Bundle; page XII, paragraph 6. [5] Appeal Bundle; page XII, paragraph 7. [6] Appeal Bundle; page XII, paragraph 8. [7] Appeal Bundle; page XII, paragraph 16 [8] Appeal Bundle; page XIV, paragraph 17. [9] Appeal Bundle; page XIV, paragraph 22. [10] Appeal Bundle; page XX, paragraphs 63-5. [11] Appeal Bundle; page XIV, paragraph 24. [12] Appeal Bundle; page XV, paragraph 28. [13] Appeal Bundle; page XVI, paragraph 36. [14] Appeal Bundle; page XVIII, paragraph 55. [15] Appeal Bundle; page XVIII, paragraph 55. [16] Appeal Bundle; page XIX, paragraph 59. [17] In part it read:
[18] Appeal Bundle, unpaginated (first document). [19] Appeal Bundle; page XXII, paragraphs 76-8. [20] Appeal Bundle; page 522, paragraph 876. [21] Appeal Bundle; pages 545-591; 592-600; and 601-644. [22] The Judicial Institute’s ‘Specimen Directions in Jury Trials’-Specimen Direction 4.1. [23] Appeal Bundle; page 4 I-S. [24] Appeal Bundle; pages 4 S - 5 I. [25] Appeal Bundle; page 5. [26] Appeal Bundle; page 645. [27] Appeal Bundle; page 655. [28] Appeal Bundle; page 656. [29] HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133. [30] HKSAR v Lee Ming Tee, page 190 G. [31] HKSAR v Lee Ming Tee, page 191 D-H. [32] HKSAR v Lee Ming Tee, page 191 H-J. [33] Appeal Bundle; page 5 H-I. [34] Appeal Bundle; page 5 B-C. [35] Montgomery v H M Lord Advocate [2003] 1 AC 641, at 673 H. [36] Appeal Bundle; pages 729-734. [37] Appeal Bundle; page 730. [38] Appeal Bundle; page 731. [39] Appeal Bundle; page 731. [40] Appeal Bundle; page 733. [41] Appeal Bundle; page 733. [42] Appeal Bundle; page 734. [43] R v McGregor [1968] 1 QB 371. [44] R v McGregor, page 377. [45] Hollington v Hawthorn & Co [1943] 1 KB 587. [46] R v Garrod [1996] EWCA Crim. 1149. [47] R v Garrod, page 13. [48] Appeal Bundle; page 733. [49] Appeal Bundle; page 733. [50] Respondent’s Submissions, paragraph 47. [51] Appeal Bundle; page 2039, paragraph 42. [52] Appeal Bundle; page 1248. [53] Appeal Bundle; page 735. [54] Appeal Bundle; page 1272. [55] Appeal Bundle; page 1298. [56] Appeal Bundle; pages 1299-1300. [57] Appeal Bundle; page 1303. [58] Appeal Bundle; pages 869-873. [59] Appeal Bundle; page 1517. [60] Appeal Bundle; pages 890-1. [61] Appeal Bundle; pages 1520-1. [62] Appeal Bundle; page 1551. [63] Appeal Bundle; page 1491. [64] Appeal Bundle; page 1552. [65] Appeal Bundle; pages 1552-4. [66] Appeal Bundle; page 1555. [67] Appeal Bundle; page 1556. [68] Appeal Bundle; page 1557. [69] Skeleton Submissions of the Applicant, paragraph 35. [70] Skeleton Submissions of the Applicant, paragraph 35. [71] Appeal Bundle: Admitted Facts; page XXII, paragraph 76. [72] Appeal Bundle; page 1078, paragraphs 407-8. [73] Appeal Bundle; page 1010. [74] Appeal Bundle; page 1078, paragraph 408A. [75] Appeal Bundle; page 1410. [76] Appeal Bundle; pages 1450-1. [77] Appeal Bundle; page 1653. [78] Appeal Bundle; page 1654. [79] Appeal Bundle; page 1010. [80] Appeal Bundle; page 1644. [81] Appeal Bundle; page 1649. [82] Appeal Bundle; page 1650. [83] Appeal Bundle; page 1651. [84] Appeal Bundle; page 1651. [85] R v Roberts (1943) 28 Cr. App. R. 102. [86] R v Roberts, page 105. [87] Fox v General Medical Council [1960] 3 All ER 225 at 230 G. [88] Corke v Corke and Cook [1958] P 93. [89] Corke v Corke and Cook;Hodson LJ, page 101 and Sellars LJ, page 111. [90] Corke v Corke and Cook, page 98. [91] Corke v Corke and Cook, page 111. [92] Appeal Bundle; page 1450. [93] Appeal Bundle; pages 1450-1. [94] Appeal Bundle; page 1452. [95] Appeal Bundle; page 1148 w. [96] Appeal Bundle; pages 1149-1154. [97] Skeleton Submissions of the Applicant, paragraph 55. [98] Appeal Bundle; pages 1781-2. [99] Appeal Bundle; page 1783. [100] Appeal Bundle; page 1785. [101] Appeal Bundle; page 742. [102] Appeal Bundle; page 752. [103] Appeal Bundle; page 758. [104] Appeal Bundle; page 763. [105] Appeal Bundle; page 778. [106] Appeal Bundle; page 795. [107] Appeal Bundle; page 796. [108] Appeal Bundle; page 797. [109] Appeal Bundle; pages 1920-1. [110] Skeleton Submissions of the Applicant, paragraph 65. [111] Appeal Bundle; page 103 A-J. [112] Appeal Bundle; pages 17 R - 18 B. [113] Appeal Bundle; page 18 G-M. [114] Appeal Bundle; pages 18 N - 19 J. [115] Appeal Bundle; page 19 L-S. [116] Appeal Bundle; page 20 B-J. [117] Appeal Bundle; page 24 E-L. [118] Appeal Bundle; page 24 O-R. [119] Yuen Kwai Choi v HKSAR,pages 128 J - 129 B, paragraph 37:
[120] Appeal Bundle; page 25 E-G. [121] Appeal Bundle; pages 25 T - 26 E. [122] Appeal Bundle; pages 26 Q - 27 C. [123] Appeal Bundle; pages 27 Q - 28 B. [124] Appeal Bundle; pages 87 Q - S; 91 N - 92 A. [125] HKSAR v Huang Song Fu [2006] 3 HKC 319. [126] HKSAR v Mo Shiu Shing [1999] 2 HKLRD 155. [127] Appeal Bundle; pages 87 S - 88 F. [128] Appeal Bundle; page 92 C-J. [129] Appeal Bundle; page 93 B-K. [130] Appeal Bundle; page 95 J-K; M-O. [131] Appeal Bundle; page 95 P-R. [132] Appeal Bundle; page 96 A-D. [133] Appeal Bundle; page 101 B-G. [134] Appeal Bundle; pages 101 O-P; 102 A-B. [135] Appeal Bundle; page 102 J-R. [136] Appeal Bundle; page 102 J. [137] Appeal Bundle; page 103 B-C. [138] Appeal Bundle; page 103 M-P. [139] Appeal Bundle; page 105 L-P. [140] Appeal Bundle; page 109 H-J. [141] Appeal Bundle; pages 109 U; 110 G and L. [142] Appeal Bundle; pages 110 M - 111 M. [143] Appeal Bundle; page 111 M-O. [144] Appeal Bundle; pages 113 Q - 114 B. [145] Appeal Bundle; page 114 K-N. [146] Applicant’s Skeleton Submissions, paragraph 74. [147] Appeal Bundle; page 114 E-K. [148] Appeal Bundle; pages 18 L, 19 E-F. [149] Appeal Bundle; pages 110 L; 111 N ; 113 M. [150] Yuen Kwai Choi v HKSAR,paragraphs 34-5. [151] R v Goodway 96 Cr. App. R. 11. [152] R v Chong Chak On [1995] 2 HKCLR 226, at 232, lines 34-6. [153] R v Chong Chak On, page 234, lines 21-9. [154] Edwards v R (1993) 178 CLR 193. [155] Skeleton Submissions of the Applicant, paragraph 76. [156] Appeal Bundle; page 18 A-B. [157] Appeal Bundle; page 19 F-G. [158] Appeal Bundle; page 19 K-R. [159] Appeal Bundle; pages 115 J - 117 S. [160] Appeal Bundle; page 110 M-S. [161] Appeal Bundle; page 110 O-Q. [162] Appeal Bundle; pages 62 I-T; 68 T - 69 B. [163] Appeal Bundle; pages 63 F-H; 70 R-T. [164] Appeal Bundle; pages 1343-4. [165] Appeal Bundle; page 61 O-S. [166] Appeal Bundle; page 1783. [167] Appeal Bundle; page 111 B-P. [168] Appeal Bundle; page 6 B-T. [169] Appeal Bundle; pages 6 P - 7 B. [170] Appeal Bundle; page 652. [171] Jim Fai v HKSAR [2006] 9 HKCFAR 27, at paragraph 16. [172] Appeal Bundle; page 77 D. [173] Appeal Bundle; page 77 D-J. [174] Appeal Bundle; page 119 H-J. [175] Appeal Bundle; pages 119 Q - 120 C. [176] Appeal Bundle; page 120 D-G. [177] Appeal Bundle; page 120 K-O [178] Appeal Bundle; page 120 P-S. [179] Appeal Bundle; page 1762. [180] Appeal Bundle; page 12 H-L. [181] Applicant’s Skeleton Submissions, paragraph 93. [182] Appeal Bundle; pages XXVIII and XXIX, paragraph103. [183] Appeal Bundle; page XXVIII, paragraph 103 (v) and (vii). [184] Appeal Bundle; pages 12 Q - 13 C. [185] Appeal Bundle; page 1792. [186] Appeal Bundle; page 80 E-M. [187] Appeal Bundle; page 82 H-K. [188] Appeal Bundle; page 82 M-P. [189] Appeal Bundle; page 84 B-J. [190] Appeal Bundle; page 84 M-Q. [191] Appeal Bundle; page 41 E-M. [192] Appeal Bundle; page 45 O-P. [193] Appeal Bundle; page 9. [194] Appeal Bundle; page 45 Q-T. [195] Appeal Bundle; page 46 J-T. [196] Appeal Bundle; pages 40 R - 42 B. [197] Appeal Bundle; pages 47 Q - 48 G. [198] Appeal Bundle; page 51 Q-S. [199] Appeal Bundle; pages 44 S-U and 45 B-C. [200] Appeal Bundle; page 45 C-I. [201] Appeal Bundle; page 71 M-R [202] Appeal Bundle; pages 43 R - 44 D. [203] Appeal Bundle; page 59 A-D. [204] Applicant’s Skeleton Submissions, paragraph 91 (c). [205] Appeal Bundle; page 36. [206] Appeal Bundle; page 1418.
[207] Appeal Bundle; page 725, paragraphs 24-5 - Summary of the applicant’s evidence:
[208] Appeal Bundle; page 684 - applicant's statement of 5 November 2008, paragraphs 88-9. [209] Appeal Bundle; page 60 D-S. [210] Appeal Bundle; page 63 D-E. [211] Transcript page 620. [212] Appeal Bundle; page 1923 f A-C. [213] Appeal Bundle; page 1923 e. [214] Appeal Bundle; page 60. [215] Appeal Bundle; page 63 B-E. [216] Appeal Bundle; page 788 F-K. [217] Appeal Bundle; page 59 R. [218] Appeal Bundle; page 1387. [219] Appeal Bundle; page XX, paragraph 63. [220] Appeal Bundle; page 691, paragraph 119. [221] Appeal Bundle; page 1420 H-S. [222] Appeal Bundle; page 1380. [223] Appeal Bundle; page 2101. [224] Summing Up, page 36 A-C. [225] Appeal Bundle; page 1626:
[226] Appeal Bundle; pages 1452-9. [227] Appeal Bundle; page 2101. [228] Appeal Bundle; page 2150, counter 29. [229] Appeal Bundle; page 2153, counters 81-83. [230] Appeal Bundle; page 2099. [231] Appeal Bundle; page 2157, counter 180. [232] Appeal Bundle; page 2158, counter 186. [233] Appeal Bundle; page 2158, page 190. [234] Appeal Bundle; pages 2158-9, counters 204-216. [235] Appeal Bundle; page 2161, counters 258-261. [236] Appeal Bundle; page 2163, counters 302-304. [237] Appeal Bundle; page 2167, counters 376-382. [238] Appeal Bundle; page 2170, counter 426. [239] Appeal Bundle; page 2172, counters 471-2. [240] Appeal Bundle; page 2177, counters 585-6. [241] Appeal Bundle; pages 2181-2, counter 720. [242] Appeal Bundle; page 2266, counters 174-183. [243] Appeal Bundle; page 2267, counters 196-201. [244] Appeal Bundle; page 2280, counter 471. [245] Appeal Bundle; page 2281-2, counters 494-496. [246] Appeal Bundle; page 2284, counters 544-5. [247] Appeal Bundle; pages 2284-7. [248] Appeal Bundle; page 2288, counter 637. [249] Appeal Bundle; page 2301, counter 911. [250] Appeal Bundle; page 2316, counters 1153-4. [251] Appeal Bundle; pages 2070-1, paragraphs 9-11. [252] Appeal Bundle; page 2317. [253] Appeal Bundle; page 2074, paragraph 26. [254] Appeal Bundle; page 2074, paragraph 27. [255] Appeal Bundle; page 2317. [256] Appeal Bundle; page 2318, paragraph 13. [257] Appeal Bundle; page 2319. [258] Appeal Bundle; pages 2416-9. [259] Appeal Bundle; page 2417, paragraph 8. [260] Appeal Bundle; page 2319 f-h. [261] Appeal Bundle; pages 2319 k-l, paragraph 6. [262] Appeal Bundle; page 2319 m; Answer 3. [263] Appeal Bundle; page 2319 m. [264] Appeal Bundle; page 2097 ah, paragraph 11. [265] Appeal Bundle; page 2097 ak, paragraph 21. [266] Appeal Bundle; page 2097 ak, paragraph 22. [267] Appeal Bundle; page 2097 al, paragraph 24. [268] Appeal Bundle; page 2086, paragraph 14. [269] Appeal Bundle; pages 249-250, paragraph 90. [270] Determination of the Appeal Committee of the Court of Final Appeal, 24 October 2011. [271] Appeal Bundle; pages 628-643, paragraphs 67-105. [272] Appeal Bundle; page 1384. [273] Appeal Bundle; pages 1388 and 1389. [274] Appeal Bundle; page 2163, counters 302-4. [275] Statement of 18 September 2015, paragraph 24. [276] Statement of 18 September 2015, paragraph 24. [277] Hong Kong Civil Procedure, 2016 Edition, Vol. 1, para 18/20A/1 at p. 460. [278] Chinachem Charitable Foundation Limited v Chan Chun Chuen and the Secretary for Justice (FAMV 20/2011; unreported, 28 October 2011) paragraph 33. [279] HKSAR v Lim Ban Hoong and Ma Ping (CACC 465/2007; unreported, 29 July 2009). [280] Appeal Bundle; page 129 O. [281] Appeal Bundle; pages 129 S - 130 B. [282] Appeal Bundle; page 130 K-Q. [283] Appeal Bundle; pages 130 Q - 131 E. [284] Appeal Bundle; page 130 H-K. [285] Appeal Bundle; pages 131 L - 132 D. [286] Appeal Bundle; page 132 I-K. [287] Appeal Bundle; page 132 M-O. [288] Appeal Bundle; page 133 B-D. [289] Appeal Bundle; page 133 A-B. [290] Appeal Bundle; page 133 F-H. [291] Appeal Bundle; page 133 H-K. [292] Appeal Bundle; page 133 N-U. [293] Appeal Bundle; page 134 A-C. [294] Chinachem Charitable Foundation Limited v Chan Chun Chuen and the Secretary for Justice , paragraph 4. [295] Hong Kong Court of Final Appeal Ordinance, Cap 484. [296] Chinachem Charitable Foundation Limited v Chan Chun Chuen and the Secretary for Justice, paragraph 6. [297] Chinachem Charitable Foundation Limited v Chan Chun Chuen and the Secretary for Justice, paragraphs 31-5. [298] Lam J §11. [299] At §20. [300] Chinachem Charitable Foundation Limited v Chan Chun Chuen and the Secretary for Justice, paragraph 31. [301] Chinachem Charitable Foundation Limited v Chan Chun Cheun and the Secretary for Justice (CACV 62/2010; unreported, 6 April 2011) at paragraph 16. [302] Appeal Bundle; page 1149 at 1151. [303] Appeal Bundle; page 155 Q. [304] Appeal Bundle; page 134 A-B. [305] Appeal Bundle; page 131 N-P. [306] Appeal Bundle; page 132 A-B. [307] Appeal Bundle; page 131 S-T. [308] Appeal Bundle; page 131 Q-R. [309] Appeal Bundle; page 133 F-H. [310] Appeal Bundle; page 133 I. [311] Appeal Bundle; page 133 N-O. [312] Appeal Bundle; page 133 T. |
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