HKSAR v. Fan Ming-kei, Anthony and Another
Read the full judgment text of CACC 319/2015 on BabelCite. This Court of Appeal judgment was delivered on 22 December 2016 before Lunn VP, Macrae JA, McWalters JA.
Criminal law – fraud – section 16A of the Theft Ordinance (Cap 210) – deceit by conduct including omission – inducement – prejudice or substantial risk of prejudice – benefit – four Convoy policyholders induced to sign incomplete application and analysis forms for Zurich investment-linked policies – policies in fact processed through GET with 2nd appellant named as handling TR – no explicit representation that policies would be through Convoy but implicit representation by omission – policyholders' trust in 1st appellant as Convoy agent accepted by trial judge – whether policyholders properly identified as victims of fraud – whether benefits were different if issued through GET or Convoy – held that policyholders were victims and that 1st appellant's deceit by omission satisfied section 16A(1) and (2) – 1st appellant's conviction upheld – adequacy of Reasons for Verdict – judge did not expressly cite section 16A but findings satisfied each element – reasons adequate when read with transcript and closing submissions – appeal refused – 1st appellant: 20 months' imprisonment on each of four charges, concurrent – appeal against sentence refused – 2nd appellant: admissibility of statements to ICAC after arrest and caution at home and subsequent video recorded interview – voluntariness – whether right of access to lawyer denied – whether questioning unfair – 2nd appellant given Notice to Persons in Custody enumerating 11 rights including rights to a lawyer – permitted multiple telephone calls to seek a lawyer – failed to engage one – elected to proceed without a lawyer – no unfairness in questioning – trial judge entitled to prefer ICAC officers' evidence – statements admissible – whether judge erred by not expressly finding dishonesty – dishonesty implicit in findings of knowing false declarations – no material error – whether judge erred in finding that 2nd appellant obtained a benefit – 'benefit' means financial or proprietary gain, whether temporary or permanent – vague, future, conditional possibility of increased commissions from synergy effects not a benefit – no direct evidence of any payment to 2nd appellant – error established – whether proviso applied – convictions sustainable on independent limb of prejudice to Zurich – error did not affect safety of convictions – 2nd appellant's appeal against conviction refused – sentence – judge erred in having regard to benefit to 2nd appellant – resentenced afresh – 2nd appellant: 10 months' imprisonment on each of four charges, concurrent – appeal against sentence allowed to that extent.
Legal issues: Whether the 1st appellant's deceit induced the four policyholders' acts and caused prejudice · Adequacy of the trial judge's Reasons for Verdict in respect of the 1st appellant · Admissibility and voluntariness of the 2nd appellant's out-of-court statements to the ICAC · Whether the judge erred in failing to consider dishonesty as an element of the 2nd appellant's deceit · Whether the 2nd appellant obtained a benefit from his misconduct · Whether the 1st appellant's sentence of 20 months' imprisonment was manifestly excessive · Fresh sentence for the 2nd appellant following the benefit finding error
Outcome: The 1st appellant's appeal against conviction and sentence was refused. The 2nd appellant's appeal against conviction was refused, but his appeal against sentence was allowed; the sentence of 14 months' imprisonment was quashed and a sentence of 10 months' imprisonment was imposed in its place.
Cited by 9 cases · Cites 2 cases
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CACC 319/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 319 OF 2015 (ON APPEAL FROM DCCC NO. 4 OF 2015) ____________
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_________________________ J U D G M E N T _________________________ Hon Lunn VP (giving the Judgment of the Court) : 1.With the leave of McWalters JA, granted on 27 July 2016, the 1st and 2nd appellants each appeal against their convictions after trial on 28 August 2015 by District Court Judge Yiu of four separate charges of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210 (“the ordinance”) and against the sentences of imprisonment imposed on them on 16 September 2015 in respect of all four charges, which each of them faced, of 20 months and 14 months’ imprisonment respectively. The judge ordered that all of the sentences for each of the appellant’s sentences were to be served concurrently. The Charges Charges 1-4: the 1st appellant 2.The 1st appellant faced four charges of fraud, Charges 1, 2, 3 and 4, in relation to four different policyholders. The Particulars of Offence of each charge were the same, save as to the date, the policyholder and insurance policy number. The Particulars of Offence of Charge 1 stipulated:
3.In its written opening the prosecution said of the resulting benefit to the 1st appellant: [1]
4.Of the prejudice or substantial risk of prejudice to the four policyholders, the prosecution asserted in its written opening: [2]
Charges 5-8: the 2nd appellant 5.The 2nd appellant faced four charges of fraud, Charges 5, 6, 7 and 8, in relation to each of the four policies. The Particulars of Offence of each charge were the same, save as to the date, the policyholder and insurance policy number. The Particulars of Offence of Charge 5 stipulated:
6.Of the prejudice to or substantial risk of prejudice to Zurich, in its written opening the prosecution said: [3]
7.In its written opening the prosecution did not stipulate the alleged benefit to the 2nd appellant. The trial 8.There was no dispute that the 1st appellant was an agent of Convoy Financial Services Limited (“Convoy”) employed as a consultant pursuant to a contract for services and the 2nd appellant was employed by GET Wealth Management Limited (“GET”) as a Distribution Director. Convoy and GET were registered with the Hong Kong Professional Insurance Brokers Association (“PIBA”) and the Hong Kong Confederation of Insurance Brokers (“CIB”) respectively. The 1st appellant was registered with the PIBA as a Technical Representative (“TR”) of Convoy and the 2nd appellant was registered with the CIB as a TR of GET. 9.Convoy and GET each had broker agreements with Zurich International Life Limited (“Zurich”) personally, pursuant to which they promoted investment-linked insurance policies of Zurich. In return, they received commissions at agreed rates from Zurich on the execution of policies. Those commissions were shared with the TRs who sold the policies. 10.Zurich required the TR promoting their insurance products to interview and explain the insurance product to the applicant and to assist him or her to complete an Insurance Application Form (“the Application Form”) and a Financial Needs Analysis Form (“the Analysis Form”) with true and correct information. The handling TR was required to declare on the Application Form and the Analysis Form that he had completed the forms with the applicant. The prosecution case The 1st appellant 11.The prosecution case was that the 1st appellant had falsely represented to each of the four policyholders stipulated in the Particulars of Offence of Charges 1-4 that their respective insurance policies with ZurichweretakenoutwithConvoyasinsuranceintermediaryand the 1st appellant as the handling Technical Representative (TR). However, the policies were in fact taken out with GET as intermediary and the 2nd appellant as the handling TR. The four policyholders testified that they did not know their policies were taken out through GET and the 2nd appellant, and that they would not have taken them out if they had known that was the case. 12.Zurich was unaware of what had taken place and issued the policies and paid commissions to GET, the company by which the 2nd appellant was employed. Zurich would not approve an application if it knew that the named TR in an application was not the handling TR responsible for the insurance policy.[4] Then, the policies were transferred from GET to Convoy. GET agents earned a higher share of the commission from Zurich than Convoy agents. As a result, the 1st appellant earned $111,839.60 [5] more than he would have received in commission if the four policies have been processed through Convoy. The 2nd appellant 13.It was the prosecution case that the 2nd appellant represented falsely to Zurich that four policies were taken out through GET, with the 2nd appellant as the handling TR. In the documentation submitted to Zurich, the 2nd appellant misrepresented that he had explained the contents of each of the policies. Furthermore, he declared falsely that he had gone through the Analysis Form with the respective policy holders. The 2nd appellant had not done so. Acting on those representations, namely that the policies were issued through GET with the 2nd appellant as handling TR, Zurich approved the policies and paid commissions to GET to a total of $608,127.39. Zurich would not have approved the policies or paid the commissions, save for the misrepresentations. The 2nd appellant’s out-of-court statements 14.Also, the prosecution relied on out-of-court statements made by the 2nd appellant. First, in statements to ICAC officers when he was arrested and cautioned [6] and, secondly in a subsequent video recorded interview. [7] The 2nd appellant admitted that he represented falsely to Zurich that he was the handling TR of the four policies and that he had explained the contents of the policies to the four policyholders. In fact, he had not done so. Special issue 15.The prosecution adduced evidence from two ICAC officers in response to the challenge made on behalf of the 2nd appellant to the admissibility of the written record in the ICAC officer’s notebook of the oral statements made by the 2nd appellant in response to having been arrested and cautioned in the early morning of 5 November 2013 and to his subsequent video recorded interview. 16.Senior Investigator Wong Kwok Kay testified that, at 06:54 hours on 5 November 2013, he arrested the 2nd appellant at the latter’s home on suspicion that he had offered advantages to the 1st appellant as a reward for transferring business from Convoy to GET. Then, he gave a Notice to Persons in Custody, which enumerated 11 rights of such a person, to the 2nd appellant. The 2nd appellant was invited to read it and, having done so, signed the form which bore the time 06:54 hours. [8] With his consent, the 2nd appellant was permitted to make several telephone calls to his supervisor, so that he could request that his supervisor get him a lawyer. The 2nd appellant was unsuccessful, although he left a message. 17.In response to having been cautioned, the 2nd appellant made replies which he recorded in his notebook. Then, at 07:40 hours the 2nd appellant signed that record, it having been read to him by Senior Investigator Wong. At 07:45 hours the 2nd appellant was escorted by car to ICAC Headquarters, which they reached at 08:15 hours. During the journey, the 2nd appellant spoke on his telephone to someone about obtaining a lawyer. 18.At ICAC Headquarters, with his consent, the 2nd appellant made another telephone call to his supervisor in connection with his request that he get him a lawyer. 19.Between 08:33 and 09:27 hours he conducted a video recorded interview under caution of the 2nd appellant. At an early stage of the video recorded interview, the 2nd appellant confirmed that he had been allowed to make a telephone call to his supervisor to seek his help in getting a lawyer. However, the 2nd appellant confirmed that up to that moment no arrangement had been made with a lawyer.[9] The 2nd appellant confirmed that, nevertheless, he was willing to participate in the video recorded interview. [10] The defence case 1st appellant 20.The 1st appellant did not give or call evidence in the defence case. His case, as put in cross-examination and in submissions, was that the four policyholders could not have failed to notice the name of GET printed on the documents they had signed. The judge was invited to note that three out of four of them eventually took their business with him to GET, even after the ICAC investigation. It was submitted that the policyholders were not misled because the 1st appellant was in fact in charge of their policies [11]. Issue was taken that the 1st appellant intended to deceive. After submission of the application forms and the Analysis Form, there remained many other steps which made concealment of the reality difficult. 2nd appellant The special issue 21.The 2nd appellant testified in the special issue, in which objection was taken to the admissibility of the written record in the ICAC officer’s notebook of the oral statements made by the 2nd appellant in response to having been arrested and cautioned in the early morning of 5 November 2013 and to his subsequent video recorded interview. 22.The 2nd appellant testified that he had been arrested at his home in the early morning of 5 November 2013, but he had not been cautioned then. [12] He was “Very shocked and not comfortable.” [13] He wished to have a lawyer present. Having been allowed to contact his supervisor, Leung Wai Hon, he asked him to contact a lawyer. Whilst he was in a motor car being escorted to ICAC headquarters, he received a call from a lawyer, who said another lawyer would come to meet him. He told the caller the address of the ICAC headquarters, to which he was being taken. At ICAC headquarters, he had been told to turn his telephone off, that he did not need a lawyer and that the questions were simple. He did not know that he had the right to have a lawyer present at any questioning of him by ICAC officers. He continued to feel confused. He felt helpless and very nervous during the video recorded interview. The general issue 23.The 2nd appellant did not give or call any evidence in the defence case on the general issue. It was submitted on his behalf that not only did Zurich not suffer any prejudice but also the 2nd appellant did not receive any benefit for his role in events by way of commission. Reasons for Verdict The special issue: the 2nd appellant 24.In his Reasons for Verdict, the judge determined:[14]
25.In reaching that determination, the judge said that he found that the ICAC investigators, Wong Kok Kay (PW7) and Chow Nim Yan (PW8), who testified to dealing with the 2nd appellant from the time of his arrest in the early morning of 5 November 2013 up and until the completion of the video record of interview, to be “truthful and reliable witnesses.” Having noted that the 2nd appellant had been permitted to contact lawyers throughout and that, as was apparent from the video record of interview, it was the 2nd appellant who decided to proceed without a lawyer, the judge determined that it was not a case “where access to lawyer was refused.” [15] Of the questioning of the 2nd appellant, the judge said that he:
26.Of the 2nd appellant’s evidence, the judge said: [16]
27.Having determined that the 2nd appellant had not told “the whole truth to the court”, the judge said that he rejected his evidence. The general issue The 1st appellant 28.The judge reviewed the evidence of each of the four policyholders in turn, noting their evidence that they had signed material documents to which other information had been added subsequently and that some of the documents contained the name of GET and its company chop. 29.Of the evidence of the four policyholders, the judge said “they are all telling the truth and did trust D1.” [17] Having noted that the documents were lengthy, the judge went on to say:
30.In contrast, he said that from a close examination of the form now “...one may easily find that the responsible financial professional was D2 instead of D1, GET instead of Convoy.” [18] 31.Having noted that it was the evidence of the four policyholders that “...they were being misled or deceived” and that they would not have taken out the policies if they known that Convoy was not involved, the judge said “the prejudice to their rights and choices were thus obvious.” [19] 32.In the result, he concluded: [20]
33.Finally, he noted that by the arrangement of using GET as the intermediary after which the 1st appellant received his commission from them, rather than the direct payment of the commission to Convoy, the 1st appellant “has earned $100,000 or more... by his deceit.” [21] 2nd appellant 34.Of the combined effect of the answers that the 2nd appellant had made having been arrested and in the subsequent video record of interview, the judge said that the 2nd appellant: [22]
35.Of the evidence that the 2nd appellant had not even seen Mr Au Yeung, the policyholder stipulated in the Particulars of Offence of Charge 1, the judge noted that the 2nd appellant had:
36.Of the 2nd appellant’s account in the video recorded interview that he had met the three other policyholders, the judge said “...they were also not his clients.” Of that account, he said it was a “bare assertion”, which had “not been repeated under oath and had not been tested under cross-examination.” [23] 37.In the result, the judge concluded of the 2nd appellant that he: [24]
38.Of the issue of whether or not any benefit accrued to the 2nd appellant, having noted that in his out-of-court statements the 2nd appellant had denied receipt of any benefit, the judge said: [25]
Reasons for sentence 39.In sentencing the 1st and 2nd appellants, the judge noted that they were aged 39 and 37 years respectively and were both married men with no previous criminal convictions. He noted that the 1st appellant worked for Convoy from 2002 until 2012 when he joined GET and that the 2nd appellant had been working in the insurance industry since 2004 and in 2014 had been promoted to the position of Chief Distribution Officer in GET. Further that his employers were willing to re-employ him after trial. 40.Of the gravity of the offence, the judge said: [26]
41.The judge went on to say: [27]
42.Of the culpability of the 1st appellant, having noted that he had “...misled his clients to sign on various documentation, leaving some blank spaces, whereupon false information was filled in” [28], the judge said “it was clearly a breach of trust scenario as against his client” [29]. Furthermore, he noted that the apparent benefit to the 1st appellant had been shown. 43.Of the culpability of the 2nd appellant, the judge said of the documentation which he signed that he “knew full well that these were all false when he signed.” [30] Of benefit to the 2nd appellant, the judge said:
44.In respect of the conduct of both appellants the judge said that the “integrity of the system and insurance business was put at risk.” [31] 45.Having determined that the serious nature of the offence and the fact that the appellants were convicted after trial rendered the making of a Community Service Order unsuitable, the judge determined that the appropriate sentences to impose on the 1st and 2nd appellants were two years’ imprisonment and 18 months’ imprisonment respectively. Sentence 46.However, stating that he had regard to the fact that the 1st appellant had offered to make full restitution, which order the judge had declined to make, that three out of the four policyholders were still prepared to do business with him and that both he and the 2nd appellant had no previous criminal convictions, the judge sentenced the 1st appellant to 20 months’ imprisonment on each of Charges 1-4 and the 2nd appellant to 14 months’ imprisonment on each of Charges 5-8, which sentences he ordered to be served concurrently. Grounds of appeal against conviction The 1st appellant 47.By the first ground of appeal against conviction, Mr Egan submitted that the four policyholders, stipulated in the Particulars of Offence of the four charges, were not proved to have been the victims of fraud. None of them were prejudiced or suffered any loss, as the premiums and policy terms by Zurich were the same, whether issued through Convoy or GET. He submitted that the policyholders were incorrectly identified as the victims of fraud in the charges. If there was a victim, it was Convoy. It had lost the commission it would otherwise have earned, if not for the fact that the policy was issued through GET. 48.As a result, he submitted that the prosecution had failed to prove one of the constituent elements of the offence, namely that the deceit induced the victim to do, or not to do, a particular act. There must be a causal link between the deception and the course of action followed by the victim which leads to the prejudice. [32] He invited the Court to note that the Law Reform Commission expressed the view that “It would be a defence to our proposed offence to show that the deception did not cause the victim to act as he did.” [33] In all material respects the proposed offence was the same as the offence created ultimately by section 16A of the Theft Ordinance. Here, the four policyholders were issued with the same policies, acting through the 2nd appellant and GET, as they would have been issued if they had acted through the 1st appellant and Convoy. They acted as they did because of representations to them by the 1st appellant as to the quality of the insurance product, not because he acted for them through Convoy. 49.By the second ground, Mr Egan submitted that the judge failed to give sufficiently adequate reasons for the conviction of the 1st appellant rendering it unsafe and unsatisfactory. The judge was under a duty to analyse the evidence and give reasons for his determinations. The basis on which the judge convicted the 1st appellant was not apparent from the Reasons for Verdict. He had not demonstrated that he had properly understood or appreciated the evidence and the verdict was not readily comprehensible.[34] The 2nd appellant 50.By the first ground of appeal against conviction, Mr McGuinniety submitted that the judge erred in drawing inferences adverse to the 2nd appellant, contrary to his out-of-court statements, that he derived financial benefit from his role in the scheme. No evidence had been produced at trial from anyone at GET on the issue. The 2nd appellant was merely an agent of GET and not part of the management, which would receive some financial benefit as a result of any benefit derived by GET. 51.By the second ground of appeal, it was submitted that the judge erred in finding that the video recorded interview was voluntary and not lacking in such unfairness as to engage the residual discretion. The judge failed to properly consider that the 2nd appellant had been denied his right to see a lawyer, in that he had been afforded insufficient time to contact and speak to a lawyer. Further, the questioning of the 2nd appellant in the interview was oppressive. 52.By the third ground of appeal, it was submitted that the judge had erred in that he had not considered the issue of dishonesty in the 2nd appellant. Dishonesty was a necessary part of deceit. The respondent’s submissions The 1st appellant 53.For the respondent, Mr Ned Lai invited the Court to note that section 16A(1) of the Theft Ordinance provides that the deceit need not be the “sole or main inducement” that induced another person to commit an act, which results in benefit to any other person or prejudiced or a substantial risk of prejudice to any person other than the person making the representation. 54.He submitted that the four policyholders had all testified that they would not have signed the application form if they had known that it was being processed through the 2nd appellant and GET, rather than through the 1st appellant and Convoy. 55.Of the adequacy of the reasons for verdict, Mr Lai submitted that the judge had addressed the matters canvassed by each of the appellants and raised at trial and provided a reasoned analysis for his determinations. The 2nd appellant 56.Of the issue of proof of dishonesty in the 2nd appellant, Mr Lai pointed to the fact that the 2nd appellant had represented in the application forms submitted by the four policyholders that “the financial needs analysis and risk profile questionnaire had been completed with the applicant.” They had not. Furthermore, he represented in the Analysis Forms submitted by the four policyholders that he was their financial consultant and intermediary. He was not. He had made a declaration that he had “... fully explained the contents of the Applicant’s Declarations to the Applicant.” He had not. 57.Mr Lai submitted that the judge was entitled to rule admissible the 2nd appellant’s video recorded interview and his acknowledgement of the written record of his earlier oral statements after caution and arrest, having determined that they had been made voluntarily. The 2nd appellant had been permitted to seek to engage a lawyer but, having failed to do so, nevertheless had indicated that he was willing to participate in the video record of interview. 58.Finally, Mr Lai accepted that the judge’s statement that it could “hardly be imagined” that, given that he was named as financial consultant on the application forms, the 2nd appellant “would ...not earn any commission at all” was a finding of fact to that effect. He said that, having regard to the evidence that the 2nd appellant, as a TR / financial consultant / intermediary of GET, was entitled to a percentage of the commission earned by GET and paid by Zurich on a policy issued by the latter on acceptance of an application form, the judge was entitled to make that finding. He acknowledged that in his out-of-court statements the 2nd appellant had consistently denied receiving any such commission. But, he invited the Court to note that the judge had said of those assertions, that they were “not adopted under oath and tested under examination.” On the other hand, he acknowledged that no evidence had been adduced from GET on that issue. Grounds of appeal against sentence The 1st appellant 59.In his grounds of appeal against sentence, Mr Egan submitted that the sentence of 20 months’ imprisonment was manifestly excessive. The judge was wrong to exclude all sentencing options other than an immediate custodial sentence. The judge failed to give sufficient weight to the 1st appellant’s clear record, his positive good character, that three out of four of the policyholders were still prepared to use the 1st appellant as their insurance agent, and that restitution, although offered, was not ordered as it was deemed too difficult to do so by the judge. The 2nd appellant’s submission 60.In his grounds of appeal against sentence on behalf of the 2nd appellant, Mr McGuinniety submitted that the judge wrongly elevated the offence to a more serious one, namely a conspiracy to defraud. Further, he said that the judge was in error to call for a Community Service Order Report and then reject it as a suitable option despite a favourable report. The six criteria [35] for making a Community Service Order had been satisfied by the 2nd appellant. 61.For the same reasons advanced in the appeal against conviction, Mr McGuinniety submitted that, in stating of the 2nd appellant that “it was hard to believe that he had no interest at all”, the judge erred in having regard for purpose of sentence to the benefit accruing to the 2nd appellant for his role in processing the applications by the four policyholders. There was no benefit. The respondent’s submissions 62.At the invitation of the Court, Mr Lai addressed some of the issues arising in respect of sentence. He invited the Court to note that the judge had found of the serious nature of the offence that it was “a premeditated and calculate plan”. Further, that the judge said it “was not merely reflected by the monetary gains but” the underlying protection concerning greater insurable interests of the policyholders would have been adversely affected. 63.Mr Lai acknowledged that the judge had not dealt with the assertion made by the 2nd appellant in his out-of-court statements that he conducted himself as he did, at the direction of his superior in GET, namely Thomas Leung. A consideration of the submissions 64.Sub-sections (1) and (2) of Section 16A of the Theft Ordinance, provide that:
65.Subsection (3) provides, inter alia, that:
Did the deceit of the 1st appellant induce the acts of the four policyholders? 66.The 1st appellant was known to all four policyholders as an agent of Convoy. There was no evidence that he made any explicit representation to any of the four policyholders that the policies for which they applied successfully to Zurich were made through him and Convoy. Nor had the 1st appellant informed his clients that the policies were to be processed through GET with another person being their financial consultant. In those circumstances there was clearly an implicit representation by the 1st appellant that, as in all their past dealings with him, Convoy would be processing their applications and he would be their representative. 67.Of what it was that induced the four policyholders to act as they did, namely signing the documentation by which the application was made to Zurich and the resulting documentation when the documents were incomplete and/or without reading them properly, the judge said: [36]
68.Having determined that Mr Au Yeung was an “architect and highly educated”, the judge said of his evidence: [37]
69.Mr Au Yeung testified that in about 2000 he had invested in a Friends Provident policy through a company called Alpha Global. However, its business closed and he transferred the policy to Convoy, where Mr Nelson Ng was his agent. He could not remember the date of the transfer. He took out another policy through Mr Nelson Ng, this time with Zurich. Then, in 2011/12, Mr Nelson Ng left Convoy. 70.Two or three months before he signed the application form, dated 28 March 2012, for the issue of a policy by Zurich he met the 1st appellant, who gave him his business card bearing the name Convoy. He had been prepared to sign the application form and related documentation, which was incomplete, and without reading it properly because he trusted the 1st appellant and Convoy. [38] 71.Of the fact that he had signed the Analysis Form in which the 2nd appellant had been described as the Intermediary [39], the following interchange ensued with counsel for the prosecution: [40]
72.Of the trust he reposed in Convoy, Mr Au Yeung explained that when Alpha Global closed his investment was standing at a loss, which was the position when Mr Nelson Ng took over for him at Convoy. Of his success with the fund, he said: [41]
73.In explaining why, in September/October 2012, he had declined the 1st appellant’s request that he transfer his policies to the new company which he said that he was joining after he left Convoy, Mr Au Yeung said:[42]
Subsequently, Mr Au Yeung said that, following the closure of Alpha Global “...I did not trust those small companies.” 74.In his oral submissions, Mr Egan said that the fact that the 1st appellant was acting as the agent of Mr Au Yeung through Convoy was irrelevant to Mr Au Yeung, as was evidenced by his answer to a question posed of him in cross-examination by Mr McGuinniety for the 2nd appellant: [43]
75.However, that answer was put in context by an interchange with Mr Au Yeung in re-examination: [44]
76.Mr To Ming Yin testified that he first met the 1st appellant in about 2002. At that time the 1st appellant was working for Convoy, as was stated on a business card the 1st appellant gave him. Subsequently, he transferred some policies that he had taken out with another broker to the 1st appellant for management. He was happy with the performance of both the 1st appellant and Convoy. [45] 77.Mr To said that he signed the application form, dated 28 March 2012, for the issue of a policy by Zurich, at the instigation of the 1st appellant. He did not read the form in detail because he trusted the 1st appellant completely. [46] Of the issue of by whom he expected the application to be processed, the following interchange ensued in his evidence-in-chief: [47]
78.In that context, he said that if he had known that the application was to be processed through a broker whom he did not know, namely GET, and an agent whom he did not know, namely the 2nd appellant, he would not have proceeded with the policy, “because I signed the application form based on my trust of Mr Fan.” [48] 79.Of the information contained on the form at the time that he signed it in various places, he said: [49]
Now, he saw that the form mis-stated his annual income as being $1.8 million, whereas it was $960,000 per annum. [50] 80.Mr To said that he signed the Analysis Form in similar circumstances, having been given it by the 1st appellant. [51] Now, he saw that the form stated his monthly income incorrectly as being $150,000. [52] It was not the case, as asserted in the statements in the Analysis Form, that the 2nd appellant was his intermediary. [53] In that context, he said that he felt “I was misled and I was deceived.” [54] 81.Madam Chow Suk Han said she was the proprietress of a drugstore which she operated together with her husband. She first met the 1st appellant, whom she knew worked for Convoy, in 2005 when he came to discuss insurance with her husband. In the event, the policy was taken out in her name. The 1st appellant was in regular contact with her husband about insurance matters thereafter. 82.In 2012, Madam Chow signed an application form, dated 28 March 2012, to take out an insurance policy in her name with Zurich. The 1st appellant, who still worked for Convoy, came to the drugstore where she signed the forms. [55] None of the handwritten information was on the form at that time, it being blank in that respect. [56] She signed because she trusted the 1st appellant. [57] He did not mention that the policy was to be taken out with a company other than Convoy, with whom she thought the policy was being taken out. [58] Now, she saw that her income was incorrectly stated as being $880,000, whereas she earned between $30,000 and $40,000 per month. Of the fact that the form stated that the financial professional was the 2nd appellant, she said: [59]
Lai Kwok Hing had not, as was asserted, completed the Analysis Form with her. 83.In that context, when asked what she would have done, if she had known that her business was to be placed with another company and with an agent whom she did not know, Madam Chow said: [60]
Later, she said “I was deceived.” [61] 84.Of the fact that GET Wealth was described in the Analysis Form as her broker, Madam Chow said that had she noticed that assertion: [62]
85.Dr Fung Man Keung testified he had taken out insurance policies through Mr James Wong of Convoy with Zurich in 2006 and 2007. In 2010, Mr Wong advised him that he was leaving Convoy. In February 2012, he received an e-mail from the 1st appellant who, having informed him that his account was under his management, said that he wished to review the portfolio and change the fund allocation. Dr Fung said that at that time he was content with his dealings with Convoy. [63] 86.In April 2012, they met and the 1st appellant gave him his business card in the name of Convoy. He agreed to the suggestion of the 1st appellant to utilise monies available in the second policy taken out with Zurich to open a new policy and he signed the application form in the company of the 1st appellant. [64] In addition to signing the application form he filled information as to his occupation and job title, although not the other manuscript additions to the form. A lot of the form was blank. [65] 87.Dr Fung said that now he saw that the 2nd appellant was described in the form as his financial consultant and reference was made to GET Wealth. At the time he signed the form, he knew neither of them nor had he seen those references. The following interchange ensued with counsel for the prosecution: [66]
88.Of his prime reason for taking out the policy through the 1st appellant and Convoy, Dr Fung said: [67]
89.In that context, when asked what he would have done, if he had noticed the 2nd appellant had been described as his financial professional on the application form, Dr Fung said: [68]
He added, that certainly he would not have signed the form in those circumstances. Conclusion 90.It is abundantly clear from the evidence of the four policyholders, accepted by the judge, that they understood at the time that they signed the Application forms and completed the Analysis Forms that the 1st appellant and Convoy were to act as their agent or broker. That was the clear implicit representation of the 1st appellant. He omitted to tell them anything to the contrary. In consequence of that dishonest, deceitful representation they were induced to act as they did. 91.The judge was entitled to find, as he did, that:
Prejudice or risk of substantial prejudice to the four policyholders 92.The judge noted that the four policyholders all testified that they had been misled or deceived into making the applications that were made in the names of the 2nd appellant and GET and that they testified that “had they known such arrangement or discovered that it was not with Convoy, they would not have entered into the policies.” Of that, he determined: [69]
93.No doubt, the obvious prejudice to which the judge had adverted was the fact that, unknown to them, the four policyholders had applied for and entered into policies with Zurich which would be managed by persons wholly unknown to them, namely the 2nd appellant and GET and not by the 1st appellant and Convoy. Benefit to the 1st appellant 94.As the judge noted, the benefit to the 1st appellant was that he received commission payments from GET in respect of the four policies of $475,317.96. If the policies have been processed through Convoy, the 1st appellant would have received commission payments of $363,478.36. Again, as the judge noted the additional benefit to the 1st appellant was an extra commission payment of “$100,000 or more... by his deceit.” [70] Adequacy of the Reasons for Verdict 95.The concerns expressed by McWalters JA [71], in granting bail to the 1st appellant, pending the hearing of his appeals, as to the precise nature of the allegation of deceit and how it was alleged to have induced the acts of the four policyholders were relied upon by Mr Egan in support of his submission as to the adequacy of the reasons for verdict. However, this Court now has the benefit, not available to McWalters JA, of a full transcript of the trial and the written submissions in the closing address of counsel for the 1st appellant. 96.So, for example, as discussed earlier, it was made clear at trial that the alleged deceit was not by an explicit representation but by an implicit representation that the ongoing relationship between the four policyholders, the 1st appellant and Convoy subsisted and by the 1st appellant omitting to state otherwise. It was in that context, that the judge referred to the evidence of the four policyholders of the conduct of the 1st appellant in their dealings with him in respect of their policies, which he determined to be a false representation with intent to defraud by the 1st appellant [72], namely: [73]
97.Although the judge did not refer specifically to the provisions of section 16A of the ordinance, those findings clearly satisfied the requirements of section 16A(1) and (2) in respect of the elements of a deceit with intent to defraud which induces another to commit an act which results in prejudice or a substantial risk of prejudice to that person. Similarly, the judge’s finding satisfied the elements of deceit in the 1st appellant, as defined by section 16A(3) of the ordinance, namely conduct by way of omission to inform the four policyholders that the policies were not being taken out through him and Convoy. Clearly, that conduct was dishonest. Of the element of benefit in the commission of the offence, the judge noted that the 1st appellant had received an aggregate payment of $475,317.96 from GET in respect of the four policies and that the payment was over $100,000 more than he would have received had the policies been taken out through Convoy.[74] 98.Having made all of those findings, the judge determined that all the charges had been proved against the 1st appellant. 99.A significant feature of the submissions advanced in the closing submissions made on behalf of the 1st appellant, both in writing and orally, concerned the testimony of all four policyholders, that they were unaware of the references to the 2nd appellant and GET in the documentation advanced in support of their applications. It was submitted, in effect, that their evidence was not to be accepted. They had signed Application forms and Analysis Forms in which, at least in their final form, contained references to the 2nd appellant as their respective financial professional. The front page of the Analysis Form was in the name of GET together with its Chinese name. Eleven of the fourteen pages of the written submissions addressed that issue in respect of the four policyholders in turn. 100.For his part, in accepting the evidence of the four policyholders “that they are all telling the truth and did trust D1” [75], the judge addressed those submissions at some length.[76] So, for example, in respect of Mr Au Yeung, the judge said: [77]
101.In respect of To Ming Yin’s evidence, that he had not noticed references to GET in the documentation which he signed in its incomplete form, the judge said that it was his evidence that he would not have trusted the 1st appellant “had he known that GET was in place.” As evidencing that degree of trust, the judge went on to note “...when D1 joined GET, PW3 transferred all policies from Convoy to GET in November 2012.” [78] 102.Similarly, the judge accepted the evidence of Madam Chow, as to the fact that the names of GET and the 2nd appellant were on the documentation that she signed, that “she had not heard of these names at all.” [79] 103.In accepting the evidence of Dr Fung, the judge determined that his evidence, in respect of the letter dated 15 June 2012 addressed to Zurich stating that he wished to transfer my “servicing agency” to the 1st appellant “of Convoy” in respect of policy “Vista 3 numbered 8357294”, was not inconsistent with his out-of-court statement: [80]
104.In making those findings, the judge was addressing the criticism made by counsel for the 1st appellant in his closing submissions of the evidence of Dr Fung and, in particular, what was said to have been the “biggest problem with him”.[81] As is apparent from Dr Fung’s evidence, the judge was entitled to accept his explanation why he was able now to “tell the circumstances in court when asked specifically”. 105.The policy number referred to in the letter was the policy number stipulated in the Particulars of Offence of Count 5, in respect of which Dr Fung had signed on the Application form and Financial Analysis Form. Although the letter bears the date 15 June 2012, it is to be noted that the date on the chop impression made on the letter in the name of Zurich states the date of receipt as being 4 September 2012. 106.In his evidence-in-chief, Dr Fung said of the circumstances in which he had come to sign the letter dated 15 June 2012: [82]
Dr Fung went on to explain: [83]
107.In cross-examination, Dr Fung agreed that in his statement to the ICAC, dated 19 August 2014, he had said that he could not remember “...the reason and the purpose of signing this letter” [84], although he acknowledged that he had been told by ICAC that the policy number stated on the letter related to the policy relating to the application form he had signed, which was the subject of ICAC’s enquiries. 108.In his explanation for the difference between his recollection in evidence and the out-of-court statement, Dr Fung said: [85]
109.For the reasons that we have given, we are satisfied that the appeal of the 1st appellant must be refused. The 2nd appellant The admissibility of the out-of-court statements 110.In ruling admissible the notebook entry of the 2nd appellant’s answers, having been arrested and cautioned at his home on 5 November 2013, and the video record of interview conducted of him later that morning, the judge said of the evidence of the two ICAC officers of those events, that they were “truthful and reliable witnesses.” [86] By contrast, he said of the evidence of the 2nd appellant that he did not find him to be “... telling the whole truth to the court and his evidence on special issue shall be rejected.” [87] In particular, he said: [88]
111.In making those findings, the judge alluded to the complaint made by Mr McGunniety that there was no pressing need to conduct the interview and, given that the ICAC officers knew that the 2nd appellant had asked to contact a lawyer, there was no reason not to wait for a lawyer before commencing the video record of interview. 112.Of that submission, the judge said: [89]
113.The judge’s finding that the video recording evidenced the fact that the 2nd appellant elected to proceed with the video record of interview in the absence of a lawyer is borne out by the transcript of that interview. First, the 2nd appellant assented to the suggestions that he had been arrested and cautioned at his home earlier that morning. Then, the following dialogue ensued: [90]
114.Of the notebook entry made of the 2nd appellant’s statement in answer to caution, the following dialogue ensued: [91]
115.Then, the 2nd appellant having been given a copy of the ‘Notice to Persons in Custody’ said to have been given to him at his home earlier that morning, the following dialogue ensued: [92]
116.The ‘Notice to Persons in Custody’ enumerated 11 rights of which items 2 to 6 concerned lawyers. Those rights included the right to:
117.Of the notebook entry and the notice, the judge said: [93]
118.It is to be noted that towards the end of the interview, which lasted 55 minutes, having asked to go to the washroom, the 2nd appellant agreed to continue the interview when told the interviewer would finish in one or two minutes. Then, after six substantive questions, which the 2nd appellant answered with denials of suggested misconduct, the interview was ended. 119.Earlier, in his recitation of the evidence, the judge noted of the evidence of Senior Investigator Wong:
120.We are satisfied that the judge was entitled to determine that, his rights having been made known to him and the 2nd appellant having exercised his right to contact a lawyer on several occasions, the 2nd appellant nevertheless elected to proceed without a lawyer being present at the video record of interview. Unfair questioning 121.Of the suggestion that the interview was rendered unfair by the fact that some of the questions were leading, the judge said: [94]
122.As an example of what was contended was unfair questioning, the judge referred to the question at counter #666. In context, the 2nd appellant had agreed that he had not conducted the Risk Tolerance questionnaire in respect of Dr Fung, notwithstanding that he signed a declaration to that effect, and had gone on to confirm that he had not done the risk evaluation of the other three policyholders as well. Then, the 2nd appellant was asked and answered: [95]
123.With respect to the judge, his determination that the question was “unsatisfactory” is difficult to understand. The proposition that the statement was incorrect followed inexorably from the 2nd appellant’s answers in the record of interview. At issue, was whether or not he knew that to be the case. The officer was entitled to pose that question. 124.Finally, having determined that the out-of-court statements were made voluntarily, the judge said that there was “no other reason to exclude it”. There were no reasons to exercise his discretion to exclude the otherwise admissible evidence. Conclusion 125.We are satisfied that there is no merit whatsoever in this ground of appeal. Dishonesty 126.Of the 2nd appellant’s admissions in out-of-court statements as to his role in respect of the Application forms and the Financial Analysis Forms submitted to Zurich in the names of the four policyholders, the judge said: [96]
127.Then, the judge rejected the 2nd appellant’s assertion that he had signed the documents in a pile, without knowing what he was signing: [97]
128.Of the element of deceit in the 2nd appellant’s conduct, the judge said: [98]
129.Next, the judge determined:
130.Obviously, although the judge did not state so in terms, that was a finding that the 2nd appellant had acted dishonestly. Further, the judge found that the 2nd appellant had so acted intending to induce Zurich to act to its prejudice. In ground 1(iv) of his Amended Perfected Grounds of Appeal against Conviction, Mr McGuinnety said that no issue was taken “with regard to prejudice having been caused to GET”. No doubt, that was a typographical error, given that the Particulars of Offence of each of the charges make it clear that the party concerned was Zurich. In any event, we are satisfied that the judge’s finding was unimpeachable. Benefit to the 2nd appellant 131.Of the issue of whether or not any benefit had enured to the 2nd appellant, the judge noted that the 2nd appellant had insisted in his out-of-court statements that he had received “no commission nor benefit from so doing”. However, of the weight to be attributed to that assertion, the judge said that they were “...not adopted under oath nor was tested under examination.” 132.Then, the judge said: [99]
133.Next, the judge said of the 2nd appellant’s video record of interview:
134.In fact, the following was the dialogue: [100]
Payment of commission 135.It not having been disputed, the judge found by reference to the commission statements, in respect of the four policies taken out by the four policyholders the subject of Charges 1 to 4, that an aggregate of $608,127.39 had been paid by Zurich to GET and that an aggregate of $475,317.96 had been paid by GET to the 1st appellant as commission. [101] 136.Mr Lai acknowledged that there was no direct evidence of any payment of monies to the 2nd appellant for his role in participating in the submission of the four Application forms and the related Financial Analysis Forms of the four policyholders to Zurich. 137.We are not satisfied that, on the basis of the 2nd appellant’s answer, “Er, at that very early stage, er [ICAC officer Mm.] the boss, er, said, er if General Fan comes there will naturally be more businesses” the judge was entitled to conclude of the 2nd appellant that he was agreeing that “at the very early stage” he expected a commission for assisting the 1st appellant. The 2nd appellant’s answer appears to have been one sentence, interrupted by the ICAC officer, not two sentences. At all events, it is clearly, at best, ambiguous and that ambiguity is to be resolved in favour of the 2nd appellant. There was no evidence of any “financial or proprietary gain” to the 2nd appellant. [102] In the circumstances of this case, we are satisfied that the uncertain, future possibility of commissions deriving from increased business as a result of the 1st appellant joining GET is not to be regarded as a benefit. 138.In the result, with respect to the judge, we are satisfied that he fell into error in determining that the 2nd appellant benefited from his misconduct. It being an error in respect of an element of the offence it was a material error. Proviso 139.At the hearing, we invited Mr Lai and Mr McGuinnety to address the Court on the consequences to the safety of the conviction of the 2nd appellant on Charges 5 to 8 in the event that the Court determined that the judge’s finding that the 2nd appellant benefited from his misconduct was made in error. Mr Lai pointed out that there were two limbs to the elements of the events described in section 16A(1), namely (a) benefit; or (b) prejudice or substantial risk of prejudice. He submitted that the conviction was to be sustained by the judge’s finding in respect of the second limb, relating to prejudice. For his part, Mr McGuinnety submitted that the finding in respect of benefit was an important adverse finding against the 2nd appellant which impacted on the safety of the conviction, so that it was not appropriate to apply the proviso. Conclusion 140.We are satisfied that the judge’s error in finding that the 2nd appellant benefited from his misconduct in those charges does not and did not impact on the safety of the judge’s findings in respect of the element of prejudice to Zurich. In those circumstances, disregarding the judge’s findings in respect of benefit, nevertheless the convictions are to be sustained on the judge’s findings in respect of prejudice. Accordingly, it is not necessary to have recourse to the proviso. 141.In the result, we refuse the appeals against convictions of both the 1st and 2nd appellants. Sentence 142.The judge was correct to describe fraud as a serious offence. More particularly, the circumstances of the commission of the offences by the 1st and 2nd appellants were serious. The 1st appellant betrayed the trust reposed in him by the four policyholders in order to trick them into signing incomplete documentation which, when completed and submitted to Zurich, contained false information. On the basis of that information, Zurich acted to its prejudice in issuing policies and making payments of commission to GET, from which the 1st appellant benefited significantly. The 2nd appellant played an important role in the scheme by lending his name and signature to the documentation which was submitted to Zurich, asserting falsely that he was the agent of the four policyholders and that, inter alia, he completed the Analysis Form with them. He had not. 143.Having delivered his Reasons for Verdict on 28 August 2015, the judge said that he determined the commission of the offences was serious. He refused a request made on behalf of the 1st appellant that he order the preparation of a Community Service Order suitability report. He said that he was not persuaded that was a suitable option for sentence. On the other hand, he was persuaded to order such a suitability report in respect of the 2nd appellant, although he said that he still had in mind a custodial sentence. In particular, he warned the 2nd appellant that, even if the report was positive, he was not bound by such a recommendation. The judge ordered background reports to be prepared by a probation officer for each of the appellants. 144.In the result, the judge identified the appropriate sentences to be imposed on the 1st and 2nd appellants as 2 years and 18 months’ imprisonment respectively. Having regard to all the mitigating factors, including the fact that they were both of the “clear record”, the judge imposed sentences of 20 months and 14 months’ imprisonment respectively. 145.We are satisfied that the judge was correct to distinguish in sentence between the two appellants to reflect their respective culpability. 146.The 1st appellant was the driving force behind the enterprise and he benefited by receiving an aggregate payment of $475,317.96 as his commission from monies paid by Zurich to GET. As we have found, the judge erred in having regard to the factor of benefit enuring to the 2nd appellant. The 1st appellant 147.In all circumstances, we are satisfied that the sentence of 20 months’ imprisonment imposed on the 1st appellant was entirely appropriate. The 2nd appellant 148.The fact that the 2nd appellant claimed that he had acted under orders from his supervisor to act as he did was addressed in the probation officer’s report: [103]
149.For current purposes, on the basis that the 2nd appellant’s evidence was true, namely that he was asked to participate in the scheme by his supervisor, nevertheless it was open to him to refuse to participate, given that it was obviously contrary to the company’s practices and contrary to law. 150.The judge having erred in having regard to the factor of benefit to the 2nd appellant in the commission of the offences of which he was convicted, it falls to this Court to sentence afresh. 151.The gravamen of the 2nd appellant’s culpability lies in the false assertions that he made to Zurich in respect of the four application and analysis forms that, as their respective relevant financial professional, he had completed those forms with the prospective applicants. In fact, he had not done so. 152.In the declaration contained in each of the application forms the 2nd appellant asserted:[104]
153.In the declaration contained in each of the analysis forms the 2nd appellant asserted:[105]
154.Clearly, the 2nd appellant must have realised that the declarations required of him in the forms submitted to Zurich were regarded by the latter as matters of importance in approving the applications, issuing policies and making payments of commission to GET. Nevertheless, he was prepared to lend his name to the forms submittedtoZurichonawhollyfalsebasis. Noinformation whatsoever had been provided to him by the proposed policyholders. Furthermore, he had not completed any financial needs analysis and risk profile questionnaires with any of the applicants. 155.There is no dispute that materially false information was contained in those forms. For example, Mr Au Yeung’s income was described falsely as being $1,080,000 annually[106] or $90,000 per month[107], whereas it was then $60,000 per month.[108] Mr To’s income was described falsely as being $1,800,000 annually[109] and $150,000 per month[110], whereas it was $80,000 per month.[111] Madam Chow’s income was described falsely as being $880,000 annually[112] and 73,333 per month[113], whereas her income was between $30,000 and $40,000 per month.[114] Finally, Dr Fung’s income was described falsely as being $880,000 annually [115] and $66,666 per month [116], whereas it was around $600,000 annually.[117] 156.In our judgment, notwithstanding the fact that the 2nd appellant had no prior criminal convictions and there was no evidence that he had benefited directly from his participation in the four conspiracies, only the imposition of an immediate custodial sentence would properly reflect his culpability. In all the circumstances we are satisfied that the appropriate sentence to be imposed on the 2nd appellant is 10 months’ imprisonment. Conclusion 157.In the result, we refuse the appeal against sentence of the 1st appellant. We allow the appeal against sentence of the 2nd appellant, quash the sentence of 14 months’ imprisonment and in its place impose a sentence of 10 months’ imprisonment.
Mr Ned Lai, SADPP(Ag), of the Department of Justice, for the respondent Mr Kevin B. Egan, instructed by Lam & Co., for the 1st appellant Mr Edward L. McGuinniety and Mr WU Chun-shing, instructed by K.Y. Woo & Co., for the 2nd appellant [1] Appeal Bundle; page 16, paragraph 8. [2] Appeal Bundle; page 15, paragraph 7. [3] Appeal Bundle; page 15, paragraph 8. [4] Appeal Bundle; pages 24-27; Additional Admitted Facts, paragraph 3. [5] Reasons for Verdict, paragraph 67. [6] Appeal Bundle; pages 138 - 143 N. [7] Appeal Bundle; pages 60-137. [8] Exhibit P 78. [9] Appeal Bundle; pages 64-5, counter #s 33-42. [10] Appeal Bundle; pages 67-8, counter #s 65-70. [11] Appeal Bundle; page 500 G-N, Closing Submissions. [12] Appeal Bundle; page 263 C-E. [13] Appeal Bundle; page 264 Q. [14] Reasons for Verdict, paragraph 49. [15] Reasons for Verdict, paragraph 45. [16] Reasons for Verdict, paragraph 48. [17] Reasons for Verdict, paragraph 62. [18] Reasons for Verdict, paragraph 63. [19] Reasons for Verdict, paragraph 64. [20] Reasons for Verdict, paragraph 66. [21] Reasons for Verdict, paragraph 67. [22] Reasons the Verdict, paragraph 69. [23] Reasons for Verdict, paragraph 70. [24] Reasons for Verdict, paragraph 73. [25] Reasons the Verdict, paragraph 74. [26] Reasons for Sentence, paragraph 15. [27] Reasons for Sentence, paragraphs 18-19. [28] Reasons for Sentence, paragraph 16. [29] Reasons for Sentence, paragraph 20. [30] Reasons for Sentence, paragraph 17. [31] Reasons for Sentence, paragraph 20. [32] Law Reform Commission Report ‘Creation of a Substantive Offence of Fraud’ - July 1996. [33] Law Reform Commission Report, Chapter 5.33. [34] HKSAR v. Ho Ka-keung [2009] 1 HKC 61. [35] Secretary for Justice v. Lin Min Ying and Ors. (CAAR 7/2001; unreported, 16 October 2001). [36] Reasons for Verdict, paragraph 62. [37] Reasons for Verdict, paragraph 52. [38] Appeal Bundle; page 317 E-H; page 351 F-H. [39] Exhibits Bundle, page 378. [40] Appeal Bundle; page 325 D-H. [41] Appeal Bundle; page 344 F-G. [42] Appeal Bundle; page 332 R. [43] Appeal Bundle; page 348 J-L [44] Appeal Bundle; page 351 C-I. [45] Appeal Bundle; page 354 E-G. [46] Appeal Bundle; page 356 M-S. [47] Appeal Bundle; page 357 N-P. [48] Appeal Bundle; pages 366 R- 367 C. [49] Appeal Bundle; page 359 O. [50] Appeal Bundle; page 362 S-T; Exhibits Bundle, page 391. [51] Appeal Bundle; page 368 I-N. [52] Appeal Bundle; page 370 A-B; Exhibits Bundle, page 411. [53] Appeal Bundle; page 376 A-B; Exhibits Bundle, page 416. [54] Appeal Bundle; page 376 J. [55] Appeal Bundle; page 408 T. [56] Appeal Bundle; page 409 T-U. [57] Appeal Bundle; page 415 A-E. [58] Appeal Bundle; page 413 K-L; Exhibits Bundle, page 431. [59] Appeal Bundle; page 413 I. [60] Appeal Bundle; page 413 M-N. [61] Appeal Bundle; page 415 J. [62] Appeal Bundle; page 419 S-T. [63] Appeal Bundle; page 452 E. [64] Appeal Bundle; page 453 H. [65] Appeal Bundle; page 454 C-J. [66] Appeal Bundle; page 452 E. [66] Appeal Bundle; page 453 H. [66] Appeal Bundle; page 456 G-I. [67] Appeal Bundle; page 457 D-H. [68] Appeal Bundle; page 458 E-F. [69] Reasons for Verdict, paragraph 64. [70] Reasons for Verdict, paragraph 67. [71] Reasons for Decision (CACC 319/2015; unreported, 25 January 2016). [72] Reasons for Verdict, paragraph 66. [73] Reasons for Verdict, paragraph 64. [74] Reasons for Verdict, paragraph 67. [75] Reasons for Verdict, paragraph 62. [76] Reasons for Verdict, paragraphs 50-63. [77] Reasons for Verdict, paragraph 52. [78] Reasons for Verdict, paragraph 54. [79] Reasons for Verdict, paragraph 55. [80] Reasons for Verdict, paragraph 57; written ‘Final submissions for D1’ paragraphs 53-59. [81] Appeal Bundle; pages 498 N - 499 F. [82] Appeal Bundle; page 465 O-T. [83] Appeal Bundle; page 466 D. [84] Appeal Bundle; page 486 C-D. [85] Appeal Bundle; pages 485 U - 486 C. [86] Reasons for Verdict, paragraph 44. [87] Reasons for Verdict, paragraph 48. [88] Reasons for Verdict, paragraph 48. [89] Reasons for Verdict, paragraph 45. [90] Appeal Bundle; pages 64-5, counter #s 31 - 42. [91] Appeal Bundle; page 65, counter #s 43-46. [92] Appeal Bundle; pages 67-8, counter #s 65-76. [93] Reasons for Verdict, paragraph 47. [94] Reasons for Verdict, paragraphs 46-7. [95] Appeal Bundle; pages 128-9, counter #s 666-7. [96] Reasons for Verdict, paragraph 69. [97] Reasons for Verdict, paragraph 70. [98] Reasons for Verdict, paragraph 71. [99] Reasons for Verdict, paragraph 74. [100] Appeal Bundle; pages 103-104; counter #s 422-435. [101] Reasons for Verdict, paragraph 67. [102] Section 16A(3) “benefit means any financial or proprietary game, whether temporary or permanent.” [103] Appeal Bundle; page 155, paragraph 4. [104] Exhibit Bundle, page 356. [105] Exhibit Bundle, page 375. [106] Exhibits Bundle, page 350. [107] Exhibits Bundle, page 370. [108] Appeal Bundle, page 320. [109] Exhibits Bundle, page 391. [110] Exhibits Bundle, page 411. [111] Appeal Bundle, page 373. [112] Exhibits Bundle, page 431. [113] Exhibits Bundle, page 451. [114] Appeal Bundle, page 413. [115] Exhibits Bundle, page 477. [116] Exhibits Bundle, page 497. [117] Appeal Bundle, page 457. | |||||||||||||||||||||
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