HKSAR v. Lam Siu Ho

CACC 380/2016

[2018] HKCA 88

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 380 OF 2016

(ON APPEAL FROM DCCC NO 1088 OF 2015)

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J U D G M E N T

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1.The applicant, who was the second defendant at trial (D2), faced 11 charges of lending money at an effective rate of interest which exceeds 60% per annum, contrary to section 24(1) and (4) of the Money Lenders Ordinance, Cap 163 (Charges 1‑11). He was also jointly charged together with the first defendant (D1) with a single charge of conspiracy to deal with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455 and sections 159A and 159C of the Crimes Ordinance, Cap 200 (Charge 12). The applicant pleaded not guilty to all charges (as did D1 to Charge 12) before HH Judge Alex Lee (“the judge”) in the District Court.

2.On 11 November 2016, the judge convicted the applicant of Charges 1 to 10 and both defendants of Charge 12, having earlier ruled that there was no case to answer in respect of Charge 11.  On 25 November 2016, the applicant was sentenced to a total term of 30 months’ (or 2½ years’) imprisonment.

3.On 14 December 2016, the applicant filed a Notice of application for leave to appeal (“Form XI”) in respect of both conviction and sentence.

4.On 17 October 2017, the applicant filed a Notice of Abandonment of his appeal against sentence.  Accordingly, his application for leave to appeal against sentence was formally dismissed by the court, pursuant to Rule 39 of the Criminal Appeal Rules, Cap 221 sub leg A.

Prosecution case

5.For ease of reference, the relevant particulars of Charges 1 to 10 are summarised in the following table:

Charge	Borrower	Date	Loan amount (HKD)	Interest rate (p.a.)
1	PW4	17.11.2006	$1,000	240%
2	PW4	13.10.2007	$300	240%
3	PW1	8.8.2005	$5,000	240%
4	PW1	16.8.2006	$5,000	240%
5	PW1	16.2.2007	$10,000	240%
6	PW1	7.9.2007	$8,000	120%
7	PW2	13.12.2007	$10,000	240%
8	PW8	22.5.2009	$10,000	240%
9	PW6	20.7.2007	$5,000	368.72%
10	PW7	A day unknown in August 2009	$20,000	120%

6.It was not disputed that, at an identification parade conducted on 13 April 2015, in which all of the above six borrowers participated, only PW8 could identify the applicant as the person who had given him a loan (the subject matter of Charge 8)[1]. Those who were unable to make any identification, however, referred to the person who had lent them money as variously “Ho Sang”, “Ho Pak” or “Simon”[2].

7.In establishing that the applicant was the lender in question, banker’s affirmations, made pursuant to section 20 of the Evidence Ordinance, Cap 8, were adduced at trial to show the dates on which the loans in Charges 1 to 9 were transferred from the applicant’s bank account (Hang Seng Bank account number 284‑467495‑882 (“HSB account”)) to the borrowers’ bank accounts.  The details of the transfers were as follows:

Charge	Transfer date	Amount (HKD)	Transferor’s account	Transferee’s account
1	17.11.2006	$1,000	HSB account	PW5’s bank account[3]
2	13.10.2007	$300	HSB account	PW5’s bank account[4]
3	8.8.2005	$5,000	HSB account	PW1’s bank account[5]
4	16.8.2006	$5,000	HSB account	PW1’s bank account[6]
5	16.2.2007	$10,000	HSB account	PW1’s bank account[7]
6	7.9.2007	$8,000	HSB account	PW1’s bank account[8]
7	13.12.2007	$10,000	HSB account	PW3’s bank account[9]
8	22.5.2009	$10,000	HSB account	PW8’s bank account[10]
9	20.7.2007	$4,500[11]	HSB account	PW6’s bank account[12]

8.Some of the borrowers testified that at times they borrowed loans from different sources[13] and could not recall the details of some of the transactions in question.  For the purpose of addressing some of the arguments in this application for leave, it may also be relevant to note that:

(a) PW4 initially testified that he had obtained several loans (at excessive rates of interest) from “Ho Pak” since 2006; those loans however predated the dates of Charges 1 and 2[14];

(b) when PW4 and PW1 were referred to the relevant bank records, they were unable to recall what the transfers were about until they refreshed their memory by reading their respective witness statements in court[15];

(c) PW2 initially testified that, whilst he borrowed a loan from “Simon” in 2007 (with which loan the applicant was not charged), he had not obtained any further loans from “Simon”[16]. He was unable to recall the borrowing in respect of Charge 7 until he had re-read his witness statement; and

(d) PW6 agreed that it was only when the police showed him the bank records that he could remember the date or year in which the loan of $4,500 was obtained[17].

9.Unlike the loans in Charges 1 to 9, the loan in Charge 10 was given to the borrower (PW7) in cash.  PW7 testified that, in August 2009, he met two males, one of whom was called “Simon” who gave him $20,000 in cash, while the other male told him that he had to repay the same together with interest of $2,000 within a month[18].  He further maintained that after that occasion, he borrowed two more loans from “Simon” (again at excessive rates of interest)[19]. The agreed evidence showed that eight sums totalling $20,000 were transferred from PW7’s bank account to an HSBC bank with account number 127‑505493‑292 (“HSBC account”) of which the applicant had control, between 15 September 2009 and 13 March 2010[20].

10.Insofar as the terms of loans in question were concerned, they were due to be repaid (at excessive rates of interest) within one month.  Accordingly, expert evidence was called at trial to demonstrate the calculations of the corresponding interest rates per annum[21].

Charge 12

11.The prosecution alleged that during the conspiracy period, namely, between 4 May 2009 and 14 May 2011, at the applicant’s request, D1 allowed the applicant to use her HSBC account in order to deal with any monies therein, which the applicant knew (and D1 had reasonable grounds to believe) were the proceeds of crime.  The money involved was HK$4,336,000.01, which the prosecution said represented the applicant’s proceeds of “loan sharking”.

Applicant’s out-of-court statements

12.The applicant was arrested on 17 March 2015, whereupon he told the police that the deposits and withdrawals in his HSB account were the turnover of his parallel goods business; and, further, that D1 had given him her bank card, which he used for the purpose of his business[22].   He attended three subsequent video recorded interviews with the police, during which he said, inter alia, that he came to know D1 when chatting with her at a mahjong school[23]; he also referred to an employee called “Ah Shing”, who assisted him in his parallel goods business and to whom D1’s bank card had been given[24].

The defence case

13.The applicant gave evidence at trial but called no witnesses.  The gist of his defence case, as summarised by the judge, was as follows:

(a) In relation to Charges 1‑10: “he did not know any of the borrowers and had not lent money to any of them”[25]; and

(b) In relation to Charge 12: “the proceeds came from his trading in parallel goods which was legitimate.  It is the case of both defendants that they had neither knowledge nor reasonable grounds to believe that the monies were proceeds of any indictable offence”[26].

14.It was submitted by counsel on behalf of the applicant at trial that the evidence of the borrowers was weak, and there was no sufficient identification evidence against the applicant (except that of PW8).  It was also submitted that it was not clear whether there was any calculation of compound interest, and what would happen if the principal was not settled in time.  As for Charge 12, it was contended that whilst there was no evidence to show that illegal activities were discernible from the HSBC account, save and except the evidence that the loan in Charge 10 was transferred into that account, if Charge 10 could not stand, Charge 12 should also fall away[27].

Reasons for Verdict

15.The judge commenced his Reasons for Verdict by stating what might be termed the shortcomings of the borrowers’ evidence in respect of the money lending charges:[28]

“As regards Charges 1 to 11, judging from the way the prosecution witnesses who were named as borrowers (“the borrowers”) were cross-examined, there can be little dispute that each of them had in fact obtained loans and paid interests.  However, of all the borrowers only PW8 could identify D2 as his lender.  Apart from identity, there is also an issue of reliability of the evidence of the borrowers concerning details of their respective loans.  In particular, it is noted that the borrowers were only asked to give their first statements to the police about 4 or 5 years after the incidents they testified about.  In addition, many of the borrowers had at the material times borrowed from different sources.  Therefore, their memory of the loans which are the subject matters of the charges is naturally called into question.”

16.The judge went on to summarise (in no less than 19 pages) the evidence of each borrower and those who received the loans[29].  In so doing, the judge noted that the evidence PW2, PW4 and PW7 had touched upon some other borrowings which, albeit allegedly connected with the applicant, did not form the subject matter of any charges[30].

17.Having considered no case submissions from counsel for both defendants, the judge ruled that there was a case to answer on all charges except Charge 11[31].

18.The judge continued to set out the applicant’s evidence in considerable length[32], followed by an analysis of the same[33], and concluded:[34]

“I reject what D2 said about the loan sharking charges; that it was D1 who proposed that he be given the use of her bank card; that he had told D1 that her bank account would only be used for making transfers to employees; that he had not charged D1 any interest for her loans and had not offered her anything in return for his use of D1’s bank account; that he took part in parallel goods business first as an employee and subsequently in his own name. I also reject what he said about Ah Shing and his evidence that the transactions in D1’s bank account (after he had obtained the use of it in 2009) related solely to his parallel goods business. Similarly, I attach no weight to those exculpatory parts of his various statements under caution.”

19.Pausing here, it may be noted that, in his consideration of the defence evidence, the judge gave himself a good character direction although, as a matter of fact, the applicant had one previous conviction for attempted robbery, in respect of which he was sentenced to 5 years’ imprisonment in the District Court in 1981.  The judge nevertheless said:[35]

“Both of the defendants have a clear record… I give myself the good character direction in favour of each of the defendants in relation to both propensity and credibility: Tang Siu Man v HKSAR (No 2).”

20.In relation to Charges 1 to 10, the judge found that the borrowers were “in general reasonable and credible witnesses trying their best to recollect the incidents concerning their respective cases” and “their evidence as to the amounts and dates of their respective loans is strengthened by the bank evidence…”[36]. The judge found, inter alia, that:[37]

“99. As regards Charges 1 to 9, I draw the inference which I find to be the only reasonable one that the transfers from D2’s personal Hang Seng Bank account to the respective bank accounts of PW1, PW3, PW5, PW6 and PW8 were in fact loans. Furthermore, having considered the evidence on each charge separately, I draw the inference which I find to be the only reasonable one that D2 was the lender of the loan in relation to each charge.

100. As regards Charge 10, I am satisfied beyond reasonable doubt that the transfers from PW7’s direct bank account to D1’s HBSC bank account were his repayments of the loan he borrowed from Simon.  I have found D2 was at the material time using D1’s HBSC bank account for collecting repayments from PW7.  I draw the inference which I find to be the only reasonable one that D2 was the lender of the $20,000 (Charge 10) referred to as Simon by PW7.   Besides, concerning the transfers by phone to D1’s bank account on 15 September 2009, 22 September 2009 and 31 December 2009 mentioned at §52(a), (b) & (g) above, I note that it was not the case of D2 that he had received any payments by phone transfer in relation to his parallel goods business.   D2 said his business was conducted on cash basis.  In the absence of any explanation from D2 as to the nature of those phone transfers, I draw the interference, which I find to be the only reasonable one, that they came from PW7’s bank account withdrawn by phone on those same days and also that they were PW7’s repayments to D2.”

21.The judge noted that the substantial expert evidence of PW11 as to the calculation on the effective interest rates was not in dispute.  He found that the effective interest rates in respect of the loans in Charges 1 to 10 were in excess of 60% per annum[38].

22.As for Charge 12, the judge’s detailed consideration of that charge may be of little significance for the purpose of this leave application.  Suffice it to say that the judge summarised the law relevant to the charge in the following terms[39]:

“Conspiracy

10. S159A(1), Crimes Ordinance defines what a statutory conspiracy is. It is the agreement to commit an offence and the intention to take part that form the offence of conspiracy: see R v Anderson. A conspiratorial agreement can be expressed or implied or partly expressed and partly implied. Proof of its existence is generally a matter of inference: see R v Brisac; and Churchill v Walton.

S25 of OSCO

11. Monies passing through a bank account are clearly property: see the definition of “property” in s 2, OSCO as read with the definition of “property” in s 3, the Interpretation and General Clauses Ordinance, Cap 1.

12. The actus reus of an offence under s 25, OSCO is “dealing” with property. “Dealing” in relation to property is defined in s 2(1) of the Ordinance and it includes (insofar as it is relevant to the present case):-

(a) receiving or acquiring the property;

(b) concealing or disguising the property (whether by concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it or otherwise); and

(c) disposing of or converting the property.

13. The mens rea of an offence under s 25 has two limbs: “knowing” or “having reasonable grounds to believe”. The court has repeatedly pointed out that the prosecution do not have to prove, as an element of an offence under s 25, that the property concerned in fact represents the proceeds of an indictable offence. The quality of the property being such proceeds is an element in the mens rea but not the actus reus: see HKSAR v Wong Ping Shui; Oei Hengky Wiryo v HKSAR (No 2); and HKSAR v Yeung Ka Sing Carson.

14. As to the test for determining whether an accused had “reasonable grounds to believe”, in Carson Yeung’s case the court confirmed their earlier decision in HKSAR v Pang Hung Fai that the test is that propounded by the Appeal Committee in Seng Yuet Fong v HKSAR, namely that:-

“To convict, the jury had to find that the accused had grounds for believing; and there was the additional requirement that the grounds must be reasonable: That is, that anyone looking at those grounds objectively would so believe.”

15. Moreover, in deciding whether a defendant had reasonable grounds to believe, the applicable standard is whether on the grounds available to him, the accused would have been led to have the requisite belief. In determining this, the defendant’s beliefs, perceptions or prejudices are to be considered and given such weight as is warranted. The conclusion which a court reaches on the issue of whether a defendant had the relevant reasonable grounds to believe depends on the state of the evidence.

16. As regards the indictable offence on which the money laundering is predicated, in HKSAR v Yang Sigai the Court of Final Appeal stressed that under the second limb, there is no requirement that it must be proved that accused was actually aware of the crime that produced the relevant property dealt with by the accused. The court also rejected the submission that it must be shown at least the accused knew of the nature of the activity that has brought about the property deal with. Reference was made to the following paragraph from Carson Yeung’s case:-

“44. The current offence therefore focuses on the property – “any property” – and on the circumstances surrounding the defendant’s acts of dealing with that property. Obviously, if he can be proven to have known that the property represented someone’s proceeds of an indictable offence, the offence is established. But, if the defendant does not know for a fact that the property represented such proceeds (as is likely to be the case with professional money launderers who would make it their business not to know), it is sufficient for the prosecution to establish that, given the circumstances of which he was aware, surrounding his dealing with the relevant property, the defendant had reasonable grounds to believe that it represented the proceeds of someone’s indictable offence, whether committed in Hong Kong or abroad.”

17. Lastly, although the Court of Appeal in HKSAR v Salim Majeb rejected the submission made on behalf of the respondent that the judgment of the Court in HKSAR v Wong Chor Wo & Another was authority for the proposition that “the lending by an account holder of the use of his account to a third party constitutes, by itself, a dealing with property for the purposes of the offence of money laundering”, it went on to observe:

“That a person lends the use of their account to another is clearly a very important primary fact from which inferences may be drawn, both as to the account holder’s joint participation with the third party in any subsequent criminal use of the account and as to his state of mind in respect of the transactions involved in that subsequent use. However, what inferences can be drawn, and what inferences should be drawn will always be a fact sensitive matter which will vary from case to case.”

The above passage is followed in the recent judgment of the Court of Appeal in HKSAR v Jariabka Juraj which was decided after the judgment of the Court of Final Appeal in Carson Yeung’s case.”

23.In finding that D1 and the applicant were co‑conspirators, the judge said:[40]

“…I draw the inference, which I find to be the only reasonable one, that D1 had grounds for believing that D2 would use her bank account for the purpose of receiving, concealing or disguising his proceeds of an indictable offence and that those grounds are reasonable. That is, that anyone looking at those grounds objectively would so believe. With that state of mind, she agreed with D2 to lend him the use of her bank account.”

24.Given the argument in respect of Ground 1 of the perfected grounds of appeal (infra), such a finding may be contrasted with the standard of mens rea found by the judge in the case of the applicant.  The judge said[41]:

“…each of them had the respective guilty state of mind. In the case of D1, she had the requisite reasonable grounds to believe and in case of D2 the requisite knowledge.”

25.In the result, the judge convicted the applicant of Charges 1 to 10; and both the applicant and D1 of Charge 12.

Grounds of appeal

26.Mr Christopher Grounds, with him Mr Kay K W Chan, who appeared for the applicant before me but not below, have advanced four grounds of appeal against conviction.

27.By Ground 1 (in relation to Charge 12 only), it is argued that a conspiracy between the applicant and D1 to commit money laundering could not be made out where the primary finding against D1 was that she had reasonable grounds to believe (as opposed to “intend[ing] or know[ing]”, the wordings stipulated under section 159A(2)[42] of the Crimes Ordinance, Cap 200) that the HSBC account would be used for money laundering (Ground 1(1)).

28.The applicant submits that, whilst all co‑conspirators must have the same standard of mens rea of not less than actual knowledge and intention to commit the substantive offence, the mens rea of D1 as found by the judge was below the requisite standard required from both conspirators.  In that respect, Mr Grounds argues that the judge failed to consider the decision in R v Saik [2007] 1 AC 18, which was said to have been cited with approval by this Court in HKSAR v Yung Lai Lai [2012] 5 HKLRD 670.  On the other hand, insofar as a similar argument may have been considered but rejected by this Court in HKSAR v Lung Ming Chu (unrep., CACC 165/2008), it is contended that the Court in HKSAR v Lung Ming Chu has misinterpreted section 159A(1) and (2), and hence its decision was wrong and should not be followed.

29.Further, Mr Grounds argues that the judge failed to consider the impact of section 159A(2) of the Crimes Ordinance properly or at all (Ground 1(2)), in deciding whether the conspiracy averred could be proved on his own findings of fact (Ground 1(3)).

30.By Ground 2 (in relation to Charges 1‑10), Mr Grounds argued that, whilst the judge referred in his Reasons for Verdict to some evidence of uncharged acts (eg, the evidence of PW2, PW4 and PW7), he failed to properly direct himself on the permissible use of that evidence.  In the absence of such directions, the convictions were unsafe and unsatisfactory.

31.By Ground 3[43], Mr Grounds submitted that the evidence of some of the borrowers (PW1, PW2, PW4 and PW6[44]) was not evaluated in a safe or satisfactory manner.  He submitted that whilst none of their evidence was worthy of belief after a reading of the relevant transcript[45], the Reasons for Verdict unfairly contained only a general summation of the evidential difficulties with those witnesses[46].

32.Ground 4 is a catch‑all ground of appeal, alleging that the convictions were unsafe and unsatisfactory by reason of the arguments already canvassed in the above grounds of appeal.

Respondent’s submissions

33.In response to Ground 1, Mr Richard Turnbull, with him Mr Vincent Lee, Public Prosecutor, on behalf of the respondent, submits that the law regarding the mental element of a conspiracy to commit money laundering was well‑settled and leave should not be granted to re‑argue the proposition of the law contended for.  He points out that in HKSAR v Ma Zhujiang and Anor [2007] 4 HKLRD 285, this Court noted that the decision in R v Saik should be considered in the context of the difference between the Hong Kong legislation and the English legislation; and that later, in HKSAR v Lung Ming Chu, this Court held that R v Saik was fundamentally distinguishable and had no application to the offence of conspiracy to commit money laundering in Hong Kong.

34.Regarding Ground 2, the respondent submits that in assessing the merits of this complaint, it is relevant to note that the case was heard by a professional judge sitting as both judge and jury.  Mr Turnbull referred to HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769 for the principles relevant to the admission of evidence of uncharged acts.  He submits that the evidence of any uncharged acts was never objected to in the court below, and was correctly admitted on the grounds of relevance: in particular, it provided the background for understanding the borrowers’ evidence and how the loans were charged generally; it also provided an explanation as to why some borrowers had encountered difficulties in recalling the details of the relevant transactions against a confused background of multiple transactions.  Mr Turnbull argues that there is nothing to show that the judge was adversely affected by the impugned evidence which he had, on the contrary, expressly noted was not the subject matter of any charges.

35.As for Ground 3, Mr Turnbull submits that this Court should not readily interfere with the factual determinations of a trial judge who has had the advantage of hearing and seeing the witnesses, unless such determinations were plainly wrong or in defiance of the evidence.  In particular, he makes the following points:

(a) The judge was alive to the fact that for the money lending charges, the live issues were identification and the reliability of the evidence of the borrowers;

(b) The judge had meticulously highlighted the shortcomings in each of the borrower’s evidence, which he nevertheless properly considered to be reasonable and credible; and

(c) The prosecution witnesses’ evidence which the applicant criticised as unreliable was only part of the prosecution case, which also encompassed direct bank transactions between the borrowers’ and the applicant’s bank accounts.  The entirety of the prosecution evidence was properly considered by the judge.

Discussion

(Ground 1)

36.I have set out the respective arguments in respect of Ground 1 of the perfected grounds of appeal in some detail to demonstrate that, upon analysis, it is a pure question of law.  The judge’s findings in respect of the mens rea of both D1 and the applicant are not disputed for the purposes of the argument, and the issues which arise concern whether one can show a conspiracy contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance when two conspirators harbour a different mental state; and whether HKSAR v Lung Ming Chu is correctly decided or, as Mr Grounds put it, the Court “has gone down a wrong avenue”[47].  The ground also engages the issue of whether the decision in R v Saik is relevant to these questions.

37.Having raised with both counsel that Ground 1 does not appear to require leave under section 82(2) of the Criminal Procedure Ordinance, Cap 221, since it raises a pure question of law, they were each minded to agree.  Accordingly, I do not propose to deal with the question of leave to appeal in respect of Ground 1.

38.Grounds 2 and 3 (and 4), however, do engage the issue of leave.  I shall deal with each of them in turn.

(Ground 2)

39.Although Mr Grounds endeavoured to show that the judge had utilised the fact that PW2 had obtained his first loan from “Simon”, even though it was an uncharged act, it is clear that the judge was plainly alive to the fact that it was not one of the charges against the applicant because he said so[48]. However, he found that in respect of this loan, PW2 had “gone to Mongkok to meet Simon face to face”, which “must have left a deep impression on him”[49].  In that context, he found that PW2 did secure a second loan, which was the subject of Charge 7.  In respect of other loans given to other borrowers outside the ambit of a particular charge, the judge was also at pains to point out that they were uncharged acts.

40.The authority of HKSAR v Kwok Hing Tony provides a helpful analysis of when an uncharged act might be relevant and how it should be used by a court.  Having surveyed relevant English and Australian cases, the Court held, at para 16:

“(a) The issue of whether evidence of “uncharged acts” is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M(T) [2000] 1 WLR 421, 426-427. Citing R v Pettman (unrep., English Court of Appeal, 2 May 1985), R v M(T) was followed in HKSAR v Chan Pui Mun (unrep., CACC 514/2006, [2008] HKEC 2071)).

(b) Even though such evidence is not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or is deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of “uncharged acts” in circumstances including the following:

•  To prove the setting and context in which the offence occurred; or

•  To explain the defendant’s confidence in repeating the offence; or

•  To explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence); or

•  To explain why the complainant is unable to recall the specific date and details of the offence charged.

In summary, the court may admit evidence of “uncharged acts” if it’s refusal to do so would result in the jury having an incomplete or incomprehensible account of events.

(c) Of course, the court should refuse to admit evidence of “uncharged acts” if it considers that the prejudicial effect on the defendant outweighs its probative force.

(d) However, if the court admits evidence of “uncharged acts”, the judge should be alert to two points when directing the jury on such evidence: (a) the standard of proof; and (b) the use to which such evidence may be put.”

41.In the context of multiple borrowings going back many years (the substantive offences charged took place in 2005, 2006, 2007 and 2009, while the witnesses gave evidence in 2016), the respondent argues that it was entirely proper for evidence of uncharged acts to be admitted to provide the “setting and context in which the offence occurred”, and “to explain why a particular borrower may have been unable to recall the specific date and details of the offence charged”.  It seems to me difficult to argue against such a proposition in the present case and, as I have said, no objection was raised at trial to the admissibility of the evidence of any of the uncharged acts.  Indeed, Mr Grounds has not sought to argue that the evidence was inadmissible per se.  The question then becomes whether the judge erred in his application of the standard of proof to the uncharged acts, or the use to which such evidence was put.

42.I have examined the several occasions when the judge has referred to the evidence of uncharged acts in a lengthy and comprehensive set of Reasons for Verdict.  I do not think, looking at his Reasons for Verdict as a whole, that it is reasonably arguable that the judge either failed in his application of the standard of proof, or transgressed the use which he could make of such evidence.  It is true that the judge did not specifically refer to the applicable principles governing the admissibility and use of uncharged acts, or any of the relevant authorities concerning such evidence.  However, this was a District Court case, not a jury trial in which the dangers and pitfalls of such evidence needed to be explained and brought home (and be seen to be brought home) to the jury.  I am not prepared to assume that a professional judge would not be aware of these principles.  Indeed, looking at his Reasons for Verdict as a whole, I consider it difficult to argue that he did not apply them.  Even in the example of PW2’s loan cited by Mr Grounds, it is clear that not only did the judge find the facts relating to the first loan proved, even though those facts did not form the basis of any charge, but they were clearly used to explain how PW2 came to be introduced to “Simon” and why he sought the second loan (Charge 7).

43.I do not consider Ground 2 to be reasonably arguable and I refuse leave to appeal.

(Ground 3)

44.It is clear that there were obvious problems with the testimony and recollection of many of the borrowers.  This was acknowledged by the judge himself at the outset of his Reasons for Verdict[50]:

“Apart from identity, there is also an issue of reliability of the evidence of the borrowers concerning details of their respective loans. In particular, it is noted that the borrowers were only asked to give their first statements to the police about four or five years after the incidents they testified about. In addition, many of the borrowers had at the material times borrowed from different sources. Therefore, their memory of the loans which are the subject matters of the charges is naturally called into question.”

45.However, as the judge said of the borrowers when he came to his assessment of the prosecution evidence, they were “in general reasonable and credible witnesses trying their best to recollect the incidents concerning their respective cases”[51]. He went on:

“I find that their evidence as to the amounts and dates of their respective loans is strengthened by the bank evidence so that I can be satisfied beyond doubt that the loans they testified about were those as particularized in their respective charges.”

Mr Turnbull points out that there was undisputed evidence of bank transactions between the borrowers’ accounts and the applicant’s (or D1’s) bank account; notwithstanding that the applicant’s case was that “he did not know any of the borrowers and had not lent money to any of them”[52]. Accordingly, the judge would only rely on their evidence where it was “strengthened” by the fact of proven and corresponding bank transactions. Where there was no bank evidence of “corresponding transactions”, as with Charge 11, the judge found no case to answer[53].

46.I have borne in mind Mr Grounds’ criticism of the judge’s evaluation of the evidence of the borrowers.  However, given that the judge was alive to their limitations, addressed their shortcomings individually and was only prepared to convict where there was a corresponding bank transaction to support the fact of the loan, I do not consider it reasonably arguable that there was a failure properly to evaluate their evidence.  In any event, as Mr Grounds was minded to accept, such a ground is by itself a difficult one to promote where it involves seeking to set aside the assessment of witnesses by a tribunal of fact.  That assessment has been described by Mr Turnbull as “meticulous”, and, looking at it as a whole, I do not consider this ground to be reasonably arguable.

47.Leave is likewise refused in respect of Ground 3.  For the sake of completeness, I do not consider Ground 4 to be otherwise reasonably arguable, leave to appeal on Grounds 2 and 3 having been refused.

48.The applicant is formally advised that he has the right to renew his application for leave to appeal against conviction on Grounds 2, 3 and 4 to the full Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

Mr Richard Turnbull (on fiat) and Mr Vincent Lee PP, of the Department of Justice, for the Respondent

Mr Christopher Grounds and Mr Kay K W Chan, instructed by S W Tai & Co, for the Applicant