HKSAR v. Siu Yin Ping and Another

CACC000138/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.138
(Criminal)

HEADNOTE

Criminal Law - straightforward case resulting in lengthy trial in District Court - smokescreen defence - unmeritorious attempt to have purely factual issues retried in Court of Appeal - direction under section 83W of Criminal Procedure Ordinance Cap.221 - full costs of the application to be paid to the Respondent under section 13 of the Costs in Criminal Cases Ordinance Cap.492.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No.138
(Criminal)

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Coram: Nazareth, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 15 October 1998

Date of Judgment: 15 October 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

The Charges

1. On 27th February 1998, following a trial lasting 29 days before Deputy Judge Lin, these Applicants (D1 and D2 at trial) were convicted of a number of charges in a charge sheet relating to a total of 34 offences.

2. Each of the charges (1 to 17) against D1 was for procuring by deception the execution of a valuable security in sums of varying amounts, all of them being under $50,000. These allegations related to dates between mid 1994 and mid 1995. The offences were contrary to section 22(2) of the Theft Ordinance, Cap.210. He was convicted on charges 1, 4, 8, 12 and 15. It is only necessary to read in the circumstances the particulars of charge 1. These were that:

"Siu Yin-ping, also known as Coty Siu, on or about the 29th day of April 1994, in Hong Kong, dishonestly, with a view to gain for herself or another or with intent to cause loss to another, procured from Greyland Trading Company Limited ("GTL") the execution of a valuable security, namely a cheque number 449553 and dated 29th April 1994 drawn on the account of the said GTL held with the Bank of East Asia for the sum of $32,400 by deception, namely by falsely representing that the said sum of $32,400 was the lawful transportation payment purportedly owed by the said GTL to Long's Company."

3. D2 faced 17 identical allegations, charges 18-34, save that he was alleged to have aided and abetted each of D1's offences, contrary to section 89 of the Criminal Procedure Ordinance, Cap.221, and section 22(2) of the Theft Ordinance. He was convicted on charges 18, 21 and 25. The distinction drawn by the judge when he acquitted D2 on two of the charges upon which D1 was convicted was an extraordinarily generous one. There was some doubt as to when D2 left his employers so that, although his signature appeared on the relevant cheques in those two charges, the judge decided to give him the benefit of the doubt. Again it is only necessary to read the particulars of one representative charge against D2 and charge 18 is particularized in this way:

"Man Chi-wai, also known as David Man, on or about the 29th day of April 1994, in Hong Kong, dishonestly, with a view to gain for himself or another or with intent to cause loss to another, aided and abetted Siu Yin-ping, also known as Coty Siu, to procure from Greyland Trading Company Limited ("GTL") the execution of a valuable security, namely a cheque number 449553 and dated 29th April 1994 drawn on the account of the said GTL held with the Bank of East Asia for the sum of $32,400 by deception, namely by falsely representing that the said sum of $32,400 was the lawful transportation payment purportedly owed by the said GTL to Long's Company."

Prosecution Case

4. The case against the Applicants was fairly straightforward, and the judge summarized the general picture in his Reasons for Verdict at page 38 in the appeal bundle as follows:

"During the time of the offences between 29th April 1994 and 7th June 1995, the two defendants were the respective managers of the shipping department and the accounting department of a Hong Kong company, Greyland Trading Limited (GTL), which was a wholly owned subsidiary of an American company, Aqua Leisure Limited (Aqua). GTL was the purchasing and sourcing company for Aqua and one of its functions was to arrange for transportation and shipment of goods purchased by Aqua from its place of manufacture through Hong Kong to various destinations.

The prosecution claimed that in arranging for payment of a transportation company for services rendered in Hong Kong D1, aided and abetted by D2, on 17 occasions made fraudulent claims on behalf of a transportation company called Long's Company, for the transportation of 109 containers. The alleged fraud was perpetrated in three different ways. For the sake of clarity I will set out and deal with them under different headings."

5. The judge then went on to describe in three separate "lots" the different ways that the alleged frauds were carried out. In this application we are effectively only concerned with the "first lot" as all the convictions were in respect of this category. However, the judge explained in his Reasons how he was able to distinguish lots 2 and 3 from lot 1 when coming to the conclusion that he should acquit on the charges relating to the former.

6. The judge summarized the allegation in relation to the "first lot" of charges in this way. It is to be found at page 38 of the bundle:

"Duplicated Payments to Long's Company

Two Long's invoices were found to carry the same container numbers and had been paid separately. Six sets of charges were under this category:

(1) Charges 1 and 18: a cheque dated 29th April 1994 in the sum of $32,400 was issued for the payment of two Long's invoices:

(i) 0116 dated 15th April 1994: of the five containers listed, three had previously appeared in the invoice 0063 and two in invoice 0067, all of which bear the same dates.

(ii) 0070 dated 26th April 1994: two of the containers named had appeared in an earlier Long's invoice 0063 dated 15th April 1994.

(2) Charges 4 and 21: a cheque dated 22nd December 1994 in the sum of $25,000 was issued for the payment of invoice 1219 dated 22nd December 1994. Of the seven containers listed therein, three had appeared in an earlier invoice, 1203 dated 3rd December 1994.

(4) Charges 8 and 25: a cheque dated 16 March 1995 in the sum of $48,420.80 was issued for the payment of four invoices:

(i) 2213 dated 6 March 1995: of the five containers named therein, two had appeared in 2259 dated 4 March 1995. One had appeared in 2310 dated 6 March 1995.

(ii) 2326 dated 16th March 1995: of the five containers named, three had appeared in 2280 dated 2nd March 1995 with identical dates among the charges.

(5) Charges 12 and 29 (It should be noted that 29 D2 was acquitted): a cheque dated 13th April l995 in the sum of $21,400 was issued to pay for the invoice 2360 dated 31st March 1995. Of the three containers mentioned two had appeared in 2352 dated 25th March 1995 and two in 2358 dated 28th March 1995.

(6) Charges 15 and 32 (D2 was acquitted on charge 32): a cheque dated 28th April 1995 in the sum of $45,000 was issued to pay for three invoices, one of which being 2448 dated 26th April 1995. Of the three containers named therein one had appeared in 2441 dated 23rd April 1995."

7. On the prosecution's case, these cheques were therefore double payments for work allegedly carried out which had already been paid for on another invoice.

Judge's Approach

8. The judge embarked in his Reasons, which altogether occupy 44 pages, upon a careful analysis of the evidence having with accuracy laid out the legal foundation for the allegations.

9. No issue whatsoever is taken with any part of the judge's approach to the general law which is to be applied to this case. This is not surprising. It was impeccable. There was no direct evidence of guilt. The case depended upon circumstantial evidence. In this respect, the judge spelt out with clarity and with precision those matters upon which he felt able safely to rely. As important background to his findings, the judge (on page 44I of the appeal bundle) summarized the relevant accounting procedures according to the evidence of PW1. He was an accountant employed by Aqua to supervise the affairs of GTL from time to time. So far as the offences on which the Applicants were found guilty are concerned, and the way in which the alleged fraudulent activities were uncovered, the judge said:

"In the course of its operation, GTL had to engage transportation companies to carry out transportation work for which service GTL would be invoiced. In the invoices one would find the particulars of service rendered, the container numbers, and the date on which service was rendered. Supporting documents such as copies of the equipment interchange receipt (EIR) issued by the container terminal to which containers were delivered, manifests or dock receipts, if any, would be submitted with the invoice. Once the invoices had been submitted to the shipping department they would be forwarded to the accounts department, together with a payment journal prepared and approved by the account manager (D2), a payment approval form listing payments to be made would be prepared and faxed to Aqua's office on a regular basis for approval. After approval was faxed back to GTL, staff of the accounts department would then prepare a cheque for signature. In the case of cheques of less than $50,000 only the defendants joint signatures were required...................

During the examination and scrutiny of the GTL books between April 1994 and June 1995, PW1 noticed the transportation charges paid to Long's Company had inflated, as compared to the preceding years. Accordingly, he had caused a thorough examination of the GTL books and noticed that some of the container references had been duplicated in different invoices and were separately paid for, i.e. in the case of the first lot of charges."

Three Further Important Aspects of Background Evidence

10. There are three other important aspects to the background. Firstly, while summarizing the evidence of PW2, who worked as a shipping clerk for GTL, the judge had this to say at page 56E:

"PW2 was responsible for preparing shipping documents and arranging for transportation and delivery of merchandise. The shipping department had a staff of 2-4 headed by D1, the most senior staff of the shipping department. After a loaded container had been delivered to one of the container terminals for shipment or the container was delivered to a go-down, an EIR or mate's receipt would be issued to acknowledge receipt. The original would be sent to the shipping company for preparing a bill of lading while at least two photocopies of the same would be made to be kept for record purposes respectively by the shipping department and accounts department. Entries would also be made in a container-loading book. Invoices would be submitted by transportation companies usually in the form of monthly statements and they would pass to the accounts department for settlement. GTL had an approved list of transportation companies to turn to whenever such service was required. This list included Mile Express and Long's Company which were recommended by D1. The former was owned by D1's ex-husband, one Ng Kwong-chi. Wong's speciality was transportation services in the Chinese territory.

When shown that EIR was included in the prosecution exhibits, PW2 could tell some of it carried D1's handwriting. Under cross-examination, PW2 stated that simply by looking at the invoices she could not tell what kind of work had been done by the transportation company and she could not say whether there had been double payment without the assistance of additional information on the worksheet which was similar to D35. She also agreed that it was possible for a container to be handled by two different transportation companies within the same day. On this basis, nor by looking at the invoices of Long's and the debit notes of Winton could she tell what kind of services had been rendered.

It was also possible for one transportation company to take up the task of patrolling the container to the Hong Kong border and another to take it across the border to the warehouse or container terminal. However, those who did not deposit the container to the warehouse or container terminal would not get a mate's receipt or EIR (as the case may be). She would expect instead a worksheet or a manifest to come with the invoice and supporting documents.

On the question of missing documents, PW2 stated since GTL's office had been moved every two to three years, some had been discarded but she was not aware of any documents having gone missing."

11. This evidence referred to by the judge leads, secondly, to what the judge had to say about Long's company itself and D1. This is to be found at page 60Q:

"Long's Company and D1:

Two witnesses were called by the prosecution to show the connection between D1 and Long's Company. PW5, Madam CHAN Sau-ying, the mother of D1, was an old lady, aged 66. She stated that she was the sole proprietor of Long's Company and was registered as such with the Business Registry. She had started the company at the suggestion of her ex-son-in-law and she went through the registration process in the company of D1. Although she stated she 'operated the business', her job was only to sign various documents given to her by her daughter. She had no idea what plants and equipment Long's had, nor was she conversant with other aspects of the business such as its expenditure and income.

For her trouble, she was not paid either in the form of a share in the business profits or a fixed salary. According to her, all of her three children had assisted in the running of the business and in particular D1 who had asked her to sign documents. When shown a sample of Long's invoice, P1C, and EIR, P1D, she had no idea what they were nor did she remember seeing them before. Long's was closed down for three to four years by reasons of her poor health and her husband's winning the Mark Six in August 1994.

Under cross-examination, she further stated that with the funds furnished by her husband a cafe was set up for the children to operate. In addition, each of the three children received $2 million in cash after the father had received the windfall. She claimed that her ex-son-in-law owned a transportation company which supplied tractors to Long's Company for his business although she had no idea how many tractors the latter had.

PW6, Shiu King-hung, was D1's brother. He was a bank supervisor. His evidence was to the effect that Long's Company was set up at the suggestion of D1 and her ex-husband and his mother was named as the proprietor. Initially he was given some money for his trouble but eventually he stopped taking money as he considered that chore a favour to his mother. Long's Company had no staff, no lorries, no tractors, no equipment and no office. It would sub-contract its work to other transportation companies which, in 95-99 per cent of the cases, was the Mile Express. Its registered office was PW6's former residence in Tsing Yi Garden which was also occupied by PW5 and later by D1 after she had separated from her husband.

PW6's mother's duty was mainly to sign cheques whereas PW5 was to make out invoices by using the EIRs and other documents initially deposited in the mailbox of his residence and subsequently handed to him by D1 personally. The freights were given by D1 and Ng and he was to work out the charges based on the size of the containers particularised in the EIRs. He would turn to his sister when he had queries. The invoices he prepared invariably were sent to GTL. He did not realize some of the invoices were 'duplicated' in the sense that the EIRs had been repeated. Payments to the invoices would be sent to the registered address of Long's Company and would be given to his mother, PW5, who since 1994 had been living with her daughter in that address.

PW6 had no idea where the cheques went and the financial status of the business. PW6 contended further that his younger brother, the youngest of the three siblings, was not involved in the business of Long's Company. PW5 and PW6 struck me as rather reluctant witnesses and understandably so.

PW5 was trying to assume responsibility for the affairs of Long's Company but had been hopelessly incompetent in her attempt. The contention that she operated Long's Company was obviously unreliable since it would be difficult to imagine how one could do so without knowing anything about the business and financial status of the company. She had repeatedly said that the business was hers when it was clear that she had no idea what it was, what was its worth, how much was its turnover and its profits. As a proprietor, she did not even benefit from the business.

Likewise, PW6 seemed to be torn between trying to distance himself from Long's Company's affairs, and protecting himself and his family members. He contended his role was confined to manual tasks of making out invoices. He was unable even to identify his handwriting and denied authorship of any of the invoices produced by the prosecution.

When at last I found that there were some elements of truth in their testimony, piecing bits of their testimony together, it seemed clear that Long's Company was set up at the behest of D1 and/or her then husband, using the residential address of PW5 and PW6 as its registered address and PW5 the nominated owner. She and her then husband supplied the EIRs for PW5 to make invoices to be submitted to GTL. She helped to fix the rates. When the cheques came, she would arrange for the same to be paid into Long's account. The role of PW6 was one of the unpaid nominees whereas PW5 offered his time in physically making out the invoices. Whatever Dl's role was, she was instrumental both in the operation of Long's Company business and the issuing of the invoices.

12. This evidence inevitably leads to the third important background matter, namely, the evidence as to where the money paid on the duplicated invoices was going.

13. The judge continued by summarizing it in this way:

"It was further admitted under section 65C of the Criminal Procedure Ordinance that between 18th December 1992 and 30th November 1994 a total of $2,835,703 was paid into Long's bank account and a total of $1,397,565.49 had been paid into Dl's account while $810,656 in all had been paid into D2's account. The particulars of how these monies were channelled could be gleaned from Exh.P90. A total of 8 bankers' affirmations had been submitted by the prosecution pursuant to the provisions of section 20 of the Evidence Ordinance, Cap. 8, Laws of Hong Kong, marked respectively as P90A-H. They furnished prima facie evidence to prove inter alia the relationship between the defendants and Long's Company.

Both 90A and 90B refer to the accounts of GTL. From gleaning the information therein, I was satisfied that all the cheques referred to in the charges and in fact in the prosecution exhibits had been paid out of GTL company accounts to Long's Company and Winton Express."

14. Digressing for a moment, I should say that "Winton Express" relates to charges in the 'second lot' on which there were acquittals.

15. Deputy Judge Lin continued:

"P90B was affirmed by an officer of the Standard Chartered Bank. He recounted inter alia the history of Long's Company account with the said bank. Long's Company opened a current account on 18th December 1992 by a sole proprietorship mandate for banking accounts signed by CHAN Yau-ying, PW6.

Initially D1 was the authorised third party signatory but the authorisation was withdrawn on 2nd April 1993. During the period between 13th January 1993 and 13th October 1995, the following cheque withdrawals from Long's Company current account were detected:

47 cheques were made payable to SIU Yin-ping, D1, totalling $1,233,735.49. 25 cheques were made payable to MAN Chi-wai, D2, totalling $755,656 and 22 'cash' cheques totalling $186,570.

Further study of the other bankers' affirmations made respectively by the officers of Hongkong Bank, Bank of East Asia, Sin Hua Bank, 1990, revealed the following:

Of the 47 Long's cheques made payable to D1, 44 cheques representing 98.4 per cent of the funds were successfully traced of which 42 cheques representing $1,197,802 went to D1's account with different banks."

16. The judge then continued by setting out a comprehensive schedule of cheques.

Time Wasting in the District Court and Unprofessional Criticism of the Trial Judge in the Court of Appeal

17. It has been necessary to read these lengthy extracts in order to give the flavour of this trial. There were only seven witnesses called, the allegation was not difficult to follow and this court regards the length of time expended by the defence on the trial to have been bordering on the scandalous.

18. Again, the judge gave several indications as to how the case had been drawn out into this long-winded affair. It seems, firstly, that Mr. William Allan, who defended D2 in the court below, made wide-ranging and serious allegations which were intended to demonstrate a motive for PW1 (the accountant) to give false evidence. These were highly unpleasant allegations that appeared to have been drawn from thin air and which were, needless to say, never once supported by a shred of evidence.

19. At one stage during the hearing in this court, Mr. Watson-Brown actually suggested that these "allegations" had put pressure on the trial judge to such an extent that he might have felt obligated to convict the Applicants on at least some offences. This was a most serious allegation to make and, on further inquiry by this court, was to counsel's credit immediately withdrawn. It should never have been made in the first place and was a highly unprofessional remark to have made.

20. Mr. Allan, in the trial, also made allegations against the ICAC officer (PW7) in charge of the case who, for obvious reasons in a trial with so many documents, was sitting in court with prosecuting counsel in order to assist. This was before he gave evidence himself and, while he was sitting in court, found himself accused by Mr. Allan of trying to make signals to PW1. This was wholly unsubstantiated, but it then led to argument as to whether or not that officer should sit outside the court until he gave his evidence. The judge very sensibly ruled that he should not do so while witnesses were giving evidence in chief, but that during cross-examination he should be outside because, by this stage, he was no longer required in the courtroom.

21. When eventually PW7 was called to give evidence, he was asked six questions in chief. Although the judge described his evidence in chief as having occupied 3 minutes, it is hard to imagine that it took even that long. Three were formal questions and three required one sentence answers. PW7 was then cross-examined in extraordinary detail over largely irrelevant matters designed, it seems, and certainly the judge took it to be so, to demonstrate that the investigation had been incompetent.

Smokescreen Defence

22. Furthermore, a considerable amount of time was spent during the trial cross-examining PW1 over accounts and documents that bore no relation to the transactions in this case, none whatsoever. The court was invited to look at no less than 92 apparently very bulky defence exhibits even though, as the judge put it at page 55A:

"... I had indicated my concern over the sheer volume of exhibits and their relevance. At one point, I was shown a whole stack of copies when the witness was asked only to look at one page. I had expected assistance in the form of submissions or oral evidence to navigate through these documents. I received none. Although some of them did shed some light on the general conditions of the GTL accounts, in my view the majority of them were not really related to the charges which concern this court.

PW1 was further cross-examined in detail on the contents of several articles which the parties agreed under section 65C of the Criminal Procedure Ordinance were downloaded from the Internet. I had read and noted their contents. While they might provide fascinating insights into American politics I failed to see how their contents could bypass the rule against hearsay, relevancy or inadmissibility. I had specifically invited counsel for assistance on this point. However, even after I had had the benefit of Mr. Allan's wisdom, I failed to see the light. In my view, this exhibit could go no further than proving that a certain article concerning Mr. Fineman and his associates was available in the Internet but could not be used to prove the truth of its contents. Even if their contents were proved true for the reasons already stated above their relevance, put to the highest, could only be described as remote."

23. The judge had detected a smokescreen defence. On the face of it, the evidence confronting the Applicants was formidable. The judge summarized the two Applicants' roles at page 72H in the appeal bundle. He had said that they played "crucial" roles and went on to say about the Applicants that they were:

"... primarily and ultimately responsible for checking the invoices and recommending the same to the Aqua office in the USA for payment approval. The combined effect of the evidence from the former staff of GTL show that it was the responsibility of the defendants to sign the cheques after approval was given. The duo, therefore, were instrumental in the execution of the cheques."

"For reasons not relevant to these proceedings D1's separated husband was not called as a prosecution witness. Although the role of Mr. Ng Kong-chi was unclear, D1 herself definitely played a very decisive part in the running of Long's Company which had no staff, no equipment and no office. What it had was one customer, GTL. D1 was responsible for recommending the service of Long's Company along with Winton Express, another company owned by her separated husband to GTL. She furnished the EIRs, gave instructions, fixed freight rates for her brother, PW5, to make out invoices to be sent to GTL. She gave directions to her mother to sign documents and cheques.

Further, from the banker's affirmations (P90) one could detect a constant flow of cash from GTL's account to her accounts with different banks during the period roughly coinciding with the charges. Sums of money went to D2's various accounts. There was even a savings account in the joint names of D1 and D2.

This evidence by itself might not amount to anything but when put together, in geometrical progression they led me to the inevitable conclusion that Long's Company was the alter ego of D1 who had liberally helped herself to its funds by channelling the same to the different accounts under the name of herself and/or D2. In my view, this was the only irresistible inference one could draw from the facts available."

24. In view of these findings, it would have been quite remarkable if the judge had not convicted both Applicants on the charges.

Grounds of Appeal

25. It is against this background that Mr. Watson-Brown, for the Applicants, has advanced a number of grounds of appeal which, somewhat unconventionally, he has labelled with letters of the alphabet.

Judge's Evaluation of Evidence and attempt to have issues retried in Court of Appeal

26. Grounds A, C and E are concerned with the judge's evaluation of the evidence. It is impractical to read them out as they occupy about 7 pages, including references to the voluminous Appeal Bundles.

27. Nothing which was not considered in the trial below has been raised in these grounds and we are quite satisfied that they are misconceived and amount to a blatant attempt to have issues that have already been considered, tried again. We have no intention whatsoever of embarking on that exercise. A glance at the headings in the grounds of appeal indicate this to be right.

28. Ground A states that the judge misdirected himself as to the effect of the evidence.

29. It is clear to us that what this really means, having heard argument today, is that the Applicants take issue with the way in which the judge interpreted the evidence. At no stage did the judge misunderstand the evidence and his interpretation was a matter for him.

30. Ground C states that the judge erred by making findings of fact inconsistent with the verdicts.

31. Again, this is a ground which is dependent upon the way in which the judge interpreted the evidence, and we have been shown no example of how his findings were inconsistent with the guilty verdicts. On the contrary, the judge bent over backwards to be fair in acquitting the Applicants on other charges where he found the evidence "highly suspicious" but where he considered that the evidence had fallen short of proof beyond reasonable doubt.

32. On the charges where the Applicants were convicted, the evidence was all one way. The Applicants may regard themselves to have been remarkably lucky to have been acquitted on the other charges, but we can say with confidence that there was nothing inconsistent in any of the findings made by the judge when recording guilty verdicts.

33. Ground E states that improper and undue weight was given to certain evidence, an allegation which Mr. Watson-Brown has singularly failed to establish.

34. So much for these grounds. They are unmeritorious and there is nothing in them at all. Putting it bluntly, the only sensible inference to be drawn from the double-payment on the invoices from Long's was that this was a fraudulent scheme from which the Applicants were able to make substantial sums of money which had been dishonestly acquired.

35. One of the claims out of the two which were submitted had to be fraudulent, taking into account all of the circumstances put before the judge of which there were many, to make this an overwhelming case of its kind. The defence were asking the court to accept, without either Applicant going into the witness box, that the containers in question could have made two journeys on the same day for exactly the same price for which separate invoices were needed. This occurred on a number of different occasions.

36. Whilst the prosecution, as the defence have argued, were perhaps missing a number of documents, it was not the documents that were missing that has convicted these Applicants. They were convicted on the documents that were before the court. If there was really a danger of a miscarriage of justice, Mr. Allan, who seems to have taken every point that was irrelevant, would surely have made an application to stay proceedings if this was relevant. Needless to say, he did not do so. This is no criticism, on this occasion, of him. There was no basis for such an application because the "missing" documents were a complete red-herring.

Inconsistent Verdicts

37. Ground B in the Grounds of Appeal, which is found on page 5 of the grounds, is that the verdicts of guilty in relation to some of the charges are inconsistent with the verdicts of not guilty rendered on other charges.

38. We have already effectively dealt with this aspect by indicating that the Applicants may well regard themselves as having been remarkably lucky to have been acquitted on the other charges. In no sense, having regard to the careful way by which the judge distinguished the various groups or, as he put it, "lots" of offences, can any inconsistency be said to have arisen. Again, this is a baseless ground of appeal.

Final Ground of Appeal

39. Ground D is a further, although different, attack on the judge's evaluation of evidence in that it alleges a failure to give weight to or to consider important aspects of evidence favourable to the defence.

40. As the judge said at page 43D:

"Since the trial has taken a total of 29 days to reach its conclusion it would not be feasible to refer to every iota of evidence introduced in this verdict. Although all the evidence had been reviewed with the utmost care, here I can only set out some of what I consider to be the most significant features. The failure to refer to some of the evidence in this case is a matter of necessity and must not be taken for my neglect of the same."

41. It would have been unhelpful and counter-productive for the judge to have delved into greater detail than he has in his clearly expressed Reasons. Perhaps the real complaint made by these Applicants is that the judge was not misled by any of the smokescreen which appears to have been put in his path. In any event, there is no substance in this point, and again this ground must fail.

Direction under the provisions of Section 83W of the Criminal Procedure Ordinance

42. As these applications are wholly without merit, we shall dismiss them both. We order that, for the same reason, under the provisions of section 83W of the Criminal Procedure Ordinance, Cap.221, 4 months of the time which these Applicants have spent in custody awaiting this appeal hearing shall not count towards their sentences of 18 months and 15 months respectively.

43. Whilst we have not had to call upon the Respondent, we should like to pay tribute both to Mr. Bruce S.C., who was not able to be here today, and to Mr. Lee for the enormous amount of work that both of them have done in the preparation of this appeal.

Costs to the Respondent under section 13 of the Costs in Criminal Cases Ordinance, Cap.492

44. [Following argument as to costs, the Applicants were ordered to pay the taxed costs of the application, half to be paid by each Applicant, under the provisions of section 13 of the Costs in Criminal Cases Ordinance, Cap.492.]

Representation:

Mr. Robert S.K. Lee, S.A.D.P.P. & Miss Vivian Chan, G.C. for D.P.P./Respondent

Mr. Anthony Watson-Brown and Mr. Luiz da Silva Pedruco instructed by Messrs. Richard Tai & Co. for D1 & D2/Applicants.