HKSAR v. Tsang Yau May and Another

CACC 16/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 16 OF 2016

(ON APPEAL FROM DCCC 73/2015)

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REASONS FOR DECISION

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1.This is a bail application.  The facts of the case from which it arises are clear on the papers.  I will not repeat them, but will go straight to the grounds of appeal and deal with them under the following headings.

THE MERIT GROUND

The question of expert evidence

2.Having read the relevant parts of the evidence, I am not persuaded that the judge had “descended into the arena” in any impermissible sense.  Rather, CD1’s[1] initial refusal to continue with the cross-examination of PW8 strikes one as verging on the theatrical, if not intemperance.

3.As for the applicants’ other criticisms, such as that the judge had done her own research, or that she had omitted to hear submissions before ruling on PW8’s expert status, I note the content of the respondent’s reply[2] but will refrain from deciding on its merit at this stage.  I ask this instead: what if the judge had indeed fallen into error in the above manner?

4.This question is pertinent because, having rejected the evidence of DW2 in its entirety, the judge accepted DW3’s evaluation of the jade pieces, which was HK$1.1M to HK$1.4M.  As pointed out by the judge, this is much closer to PW8’s evaluation (about HK$0.5M); and it raises the same query as to why Maryo was prepared to pay HK$12M for them – even if PW8’s evidence were to be disregarded.  [Ground 2]

5.The above observation presupposes the correctness of the judge giving no weight to DW3’s assertion that jade prices can “fluctuate” to ten to 20 times its assessed value, and that HK$12M was still within range for the 200 pieces of “low-end” items in question.  As the judge had so succinctly put it[3], “Obviously a person may pay more for a piece than it’s worth if they want it and are willing but that scenario does not apply here to Maryo buying 200 pieces as an investment.”  The 1^st applicant, I may add, grew up in a family of professional jade traders.  [Ground 3]

In the event of an acquittal of a co-conspirator

6.The submissions under this head are premised upon the postulation that the case against the 2^nd applicant was weak (or particularly weak) and, assuming his success on the appeal, the conviction of the 1^st applicant must also be overturned.  But, just as the judge pointed out[4], there is no reason for the 2^nd applicant to have in his possession the photo album that PW4 put together.  It suggests a link between the 1^st and 2^nd applicants – “a link that goes further than a bona fide arms length sale and purchase agreement”.  Under caution, the 2^nd applicant also lied about not having done business with Maryo.  He did not subsequently give evidence on the general issue.  [Ground 4]

Other evidence and inference

7.Regarding the complaint that the judge had failed to evaluate the 1^st applicant’s statement (Exhibit P55), I find the respondent’s reply most helpful.  Exhibit P55, I may add, was a prepared statement.  It was made at the 1^st applicant’s leisure. Its content had never been tested by cross-examination.  [Ground 1]

8.Given the nature of the present proceedings, it is both unnecessary and undesirable for me to engage the applicants’ arguments in detail.  Suffice it to say that, on a fair reading of the evidence, the case against the applicants was strong.  The adverse inferences that the judge had drawn against them were neither wrong nor impermissible.

9.It is unhelpful for the applicants to single out different primary facts and accord them with innocent explanations.  Examples include the haphazard manner in which the jade pieces were kept when they were recovered, and the discovery at the 2^nd applicant’s residence the photo album that PW4 prepared for the civil action.  It is the combined effect of different facts, covering the many facets of a case, which gives circumstantial evidence its cogency.  [Ground 5]

THE TIME GROUND

10.Both the applicants were sentenced to 32 months’ imprisonment.  These sentences are not short and will only expire in October 2017[5], assuming there to be full remission for good behaviour.  Like the merit ground, the time ground is not made out.

CONCLUSION

11.The application is refused.

Miss Fu Yuet-yee, Betty, SPP of the Department of Justice, for the respondent

Mr Cheng Huan, SC leading Mr Tang Edward H M and Mr Chan Arthur, instructed by M/s Damien Shea & Co., for the 1^st & 2^nd applicants