HKSAR v. Chen Keen (Alias Jack Chen) and Others
Read the full judgment text of CACC 172/2016 on BabelCite. This Court of Appeal judgment was delivered on 16 April 2018.
1. Each member of the Court has contributed to this judgment.
Cited by 2 cases · Cites 8 cases
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CACC 172/2016 [2018] HKCA 121 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 172 OF 2016 (ON APPEAL FROM HCCC NO. 83 OF 2014) ____________
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________________ J U D G M E N T ________________ Hon Lunn VP : 1.Each member of the Court has contributed to this judgment. 2.The 1st and 2nd applicants and the 3rd appellant were convicted on 29 April 2016, after trial before Pang J and a jury, of various counts on an indictment. The 3rd appellant appeals with the leave of Lunn VP, granted on 9 May 2017, in respect of some grounds of appeal and renews his application for leave in respect of other grounds of appeal for which leave was refused. For the sake of convenience, we shall refer to the 1st and 2nd applicants and the 3rd appellant as appellants. 3.All three appellants were convicted of the same two counts of conspiracy to defraud (Counts 1 and 2). In addition, the 1st appellant was convicted of a separate count of dealing with property, knowing or having reasonable grounds to believe that it was the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 (Count 3). The indictment 4.By the Particulars of Offence of Counts 1 and 2, it was averred that the three appellants had conspired to defraud the Stock Exchange of Hong Kong (“SEHK”) (Count 1) and China Jin Hui Mining Corporation Limited (“CJHM”), a company listed on the SEHK and referred to at trial by its stock code number, 462, and its existing shareholders (Count 2) by dishonestly making false representations and concealing or failing to disclose matters thereby causing:
5.Particulars (a) to (e) of both counts were identical and were to the following effect:
The trial 6.On 22 May 2009, 462 entered into an agreement with UBTL, otherwise known as UTCL, for the purchase of the shares of UBAH for NZ$500 million.[1] The purchase was to proceed in two parts. The first part provided for the sale of 20 percent of the shares UBAH for NZ$100 million and the second part for the sale of the balance of 80 percent of those shares for NZ$400 million. The underlying assets, the subject of the sale and purchase, were farm Properties stipulated in Schedule 2A of the agreement [2], in respect of which it was stipulated that UBFM had entered into sale and purchase agreements (“Farm agreements”). 7.Earlier that day, the board of directors of 462, attended by the 1st appellant, had approved the purchase. The minutes recorded the fact that it was reported to the meeting, in exactly the same language used in the subsequent announcement of 4 June 2009, that the ultimate beneficial owners of UTCL and UBMF were “third parties independent of the company and its connected persons.” [3] On 7 May 2009, the 1st appellant had been appointed a director and co‑chairman of 462.[4] 8.On 18 May 2009, the 2nd appellant, using UBFM, had entered into six agreements with six companies of the CraFarms Group[5] to purchase the farms stipulated in Schedule 2A of the 462 sale and purchase agreement for a total of NZ$259 million. 9.Given that the proposed acquisition by 462 was a very substantial acquisition (“VSA”), 462 on 4 June 2009, no objection having been made by the SEHK to its publication, 462 published an announcement in respect of the sale and purchase agreement and the proposed issue by 462 of convertible notes.[6] 10.On 8 September 2009, no objection having been made by the SEHK to its publication, with the approval of its Board of Directors, 462 published a circular in respect of the sale and purchase agreement and the proposed issue by 462 of convertible notes.[7] It gave notice that it was proposed to hold an extraordinary general meeting on 2 October 2009 for the purpose of considering ordinary resolutions, to increase the share capital of 462 and, inter‑alia, to approve the acquisition agreement and the issue of the convertible notes and allotment and issue of conversion shares, and a special resolution to change the name of 462. The 1st appellant signed a Confirmation, dated 7 September 2009, in which he confirmed that he had “…read the Circular of the Company in respect of the Transactions and consents to the content of the Circular as being accurate and complete in all material respects, and not misleading or deceptive.” [8] Notice was given in the circular of the prospective convening of an Extraordinary General Meeting (“EGM”) of the shareholders of 462 on 2 October 2009 to consider the approval of three resolutions: first, increasing the authorised capital of 462; secondly, approving the sale and purchase agreement and the issue of convertible notes; and, thirdly changing the name of 462 to “Natural Dairy (NZ) Holdings Limited”. 11.The announcement, dated 4 June 2009, stated:[9]
12.The circular, dated 8 September 2009, included a similar assertion, but also went on to state:[10]
13.Earlier, in correspondence, the 1st and 2nd appellants had replied to enquiries from the SEHK, dated 10 August 2009, in the context of the Acquisition, as to their relationship.[11] In an undated reply, the 1st appellant asserted “There were no existing or prior relationship between myself and Ms Wang with respect to the Acquisition.” [12] For her part, in a reply to the SEHK, dated 19 August 2009, the 2nd appellant asserted “There was no existing or prior relationship between Mr Chen & me with respect to the Acquisition.” [13] 14.In Appendix II of the circular, under the rubric “FINANCIAL INFORMATION OF THE TARGET GROUP” it was asserted, inter‑alia, that gross profit in the “Unaudited Combined Profit and Loss Statements Attributable to the Target Assets” for the year ended 31 May 2009 was $92,520,000. It was stated the calculation of that and other figures, namely revenue, cost of sales, other income gains (losses) and net income, in respect of that and earlier financial years “…have been prepared based on the financial and other information provided by the management of the vendor.” 15.On 2 October 2009, the shareholders of 462 passed the resolutions approving the increase in the authorised share capital, the acquisition agreement, the issue of convertible notes and the allotment and issue of conversion shares. 16.On 4 December 2009, 462 entered into a placing agreement with Sun Hung Kai Financial (“SHKI”)[14], pursuant to which the latter agreed, inter‑alia, to place convertible bonds, (CN‑C), to an aggregate principal amount of HK$951 million. 17.On and between 21 December 2009 and 10 February 2010, SHKI remitted HK$692.27 million (NZ$125 million) to an account of Knight Coldicutt with the Bank of New Zealand to be held in escrow for 462.[15] On and between 21 December 2009 and 10 February 2010, those monies were transferred from that account to a Knight Coldicutt ‘Client Trust Account’ with the Bank of New Zealand.[16] 18.The Knight Coldicutt Financial Ledgers reflect the transfer of NZ$51.6 million of those monies from 462 to UBTL, UBAH and UBFM.[17] On 11 and 15 February 2010, a total of NZ$25.5 million was transferred from UBFM to the bank account of UBTL with HSBC NZ, of which the 2nd appellant was the sole signatory.[18] On 17 February 2010, HK$73.3 million was transferred from that account of UBTL to the current account of Goldmate with ICBC but only received in that account on 2 March 2010.[19] (Count 3) Goldmate was a Hong Kong registered company, of which the 1st appellant was a legal and beneficial owner at all material times.[20] The 1st appellant was the sole signatory of the latter account. On 11 March 2010, a cheque drawn on Goldmate’s account and signed by the 1st appellant in the sum of HK$68.95 million was deposited into the account of Fred Kan & Co.[21] On 12 March 2010, a cheque in the same amount drawn on the account of Fred Kan & Co. was deposited into the bank account of the 1st appellant’s wife, Ye Fang.[22] 19.On 20 and 21 April 2010, SHKI transferred HK$356.1 million of the proceeds raised by the sale of convertible notes (CN‑B) to an account of Knight Coldicutt with the Bank of New Zealand. On 25 May 2010, NZ$65.5 million was transferred from that account to a Knight Coldicutt ‘Client Trust Account’ to the credit of UBTL.[23] On 11 June 2010, NZ$2,067,669 was transferred from that account to the current account of Goldmate with ICBC. On 13 July 2010, there was a further transfer between those accounts of NZ$100,000.[24] (Count 3) Background 20.On 3 October 2008, on the instructions of the 2nd appellant, Barry Fraser had signed a Confidentiality Agreement on behalf of UBFM with the CraFarms Group, which included the six companies whose Properties were the farms stipulated in Schedule 2A of the sale and purchase agreement, dated 22 May 2009.[25] The agreement provided for the provision of information in respect of the Properties, which UBFM agreed to keep confidential. 21.On 8 October 2008, Barry Fraser signed a Commission Agreement (“CSA”) on behalf of Latitude Asia, of which his two sons were directors, with the 1st and 2nd appellants.[26] The agreement provided that “…all commission received through dairy farm purchases with CraFarms Group”, which was described as including the six companies which owned the farms stipulated in Schedule 2A of the sale and purchase agreement dated 22 May 2009, “will be shared equally between the said three parties.” 22.On 17 November 2008, Barry Fraser signed a Consultancy Agreement with CraFarms Group, which was described as including the same six companies which owned the farms, pursuant to which he was appointed the consultant of the Group in respect of the sale of the farms.[27] The agreement provided that he was to be paid a 2 per cent success fee on the “…full and final settlement of all of the farm agreements”. Although the agreement provided that the appointment was for an “initial period of one month”, it provided for an extension of time in which it operated. 23.By a Letter of Engagement, dated 3 June 2009, ShineWing HK (CPA) Ltd (ShineWing), albeit signed by 462 on 16 June 2009, in respect of the proposed acquisition, ShineWing was engaged to conduct reviews of UBNZ Assets Holdings Limited, (“the Target Company”) and the assets (“Target Assets”) it was proposed be injected into UBNZ Assets Holdings Limited prior to the acquisition.[28] In particular, ShineWing was required to “Review the profit and loss statements of the Target Assets for the 3 years ended 31 May 2006, 2007, 2008 and ten months ended 31 March 2008 and 2009.” Also,ShineWing was required to issue an accountant’s report on the unaudited pro forma financial information. Further, ShineWing was required to issue a letter of consent in respect of the circular and to review it and the announcement in respect of the proposed transaction. On 7 June 2009, a number of members of staff of ShineWing travelled to New Zealand to facilitate ShineWing’s discharge of its duties under the letter of engagement.[29] 24.There was no dispute that the 3rd appellant liaised with ShineWing in providing them with information, purportedly to enable them to discharge their duties. In his turn, he received information relevant to those matters from Mark King of Stretton’s, the accountants of the CraFarms Group, and from David Wiltshire, the finance and administration manager of CraFarms Group. The prosecution case Counts 1 and 2 25.It was the prosecution case that May Wang, acting through companies she controlled as the vendors in the sale and purchase agreement with 462 in respect of the farms, was far from independent from 462 and its connected persons, as was asserted in both the announcement and the circular. It was the prosecution case that the 1st and 2nd appellants were “working together” on the transaction. Accordingly, assertions in the announcement and the circular that the parties to the sale and purchase agreement were independent of one another were false. 26.Of the 3rd appellant, it was the prosecution case that he had provided ShineWing with false figures in respect of the target company and target assets. He did so by manipulating the figures that had been provided to him by Mark King. The 3rd appellant was not only aware that the false figures he had provided to ShineWing were being used in statements made in the circular but he also responded to enquiries from ShineWing giving explanations to be used in the circular for those false figures. It was falsely represented to the SEHK, 462 and its shareholders that the gross profits of the properties and fixed assets relating to the dairy farms was $92,520,000. 27.It was the prosecution case that all three appellants were parties to two separate conspiracies to defraud, which had the ultimate common purpose of securing the approval of the shareholders in the EGM to the acquisition agreement and to the issue of convertible notes, followed by the execution of that acquisition agreement and the issuing of convertible notes. First, they were parties to an agreement to defraud the SEHK, pursuant to which it was intended that false representations be made dishonestly to the SEHK, or not disclosing matters which ought to have been disclosed, so as to cause the SEHK to allow the publication of the announcement and the circular (Count 1). Securing those objectives was a necessary step to securing the ultimate objective. Secondly, they were parties to a related conspiracy to defraud 462 and its shareholders, pursuant to which it was intended that false representations be made dishonestly, or not disclosing, or concealing, matters which ought to have been disclosed, so as to cause 462 and its shareholders to approve the Acquisition, to issue and release convertible notes and an optional bond (Count 2). Count 3 28.The total amount of money transferred from the account of Knight Coldicutt to the account of Goldmate, of which the 1st appellant was the sole signatory, namely HK$85,287,112.56, was the property stipulated in the Particulars of Offence of Count 3, with which it was alleged that the 1st appellant had dealt, knowing or having reasonable grounds to believe that it represented the proceeds of an indictable offence. It was the prosecution case that the 1st appellant knew that the monies with which he dealt were the proceeds of an indictable offence, in particular that the monies were raised by 462 for the acquisition and they represented the proceeds of the conspiracy of which he was a party to defraud 462, as averred by Count 2.[30] The defence case 29.Neither the 1st nor 2nd appellants gave evidence in the defence case, although the 1st appellant called Chen Feng as defence witness in his case. The 3rd appellant testified in his case. It was the defence case that neither of the two alleged conspiracies existed. Although the 1st and 2nd appellants acknowledged that they had known each other prior to the acquisition by 462, it was their case that there was no secret relationship in existence between them in respect of the acquisition. There was no impropriety or dishonesty. 30.It was contended on behalf of the 1st and 2nd appellants that the commission agreement related to a wholly different matter. In any event, it had expired and had no application to the acquisition by 462. Moreover, there was no provision in the sale and purchase agreement for the payment of commission. The consultancy agreement, which did provide for the payment of commission, had expired. Further, the 2nd appellant, qua vendor, had no duty of disclosure. 31.It was the case of the 1st and 2nd appellants that there was nothing improper in the payment of NZ$51.6 million to UBTL. It was “part payment” for 20 percent of the UBAH shares. So, the 2nd appellant had the right to dispose of those monies as she chose. 32.It was the 3rd appellant’s evidence that he had disclosed the accounts in respect of the farms, which had been provided to him by Mark King on 15 June 2009 (“Tab 11”),[31] to various members of staff of ShineWing whilst they were in New Zealand and, further, that he had discussed those figures with them. He told them that, for his part, he was working on projected figures, based on assumptions. The appellants pointed to emails sent by the 2nd appellant to ShineWing, in which it was asserted that the figures were based on assumptions.[32] Also, the defence relied on the evidence of Andy Wong, of ShineWing, who had agreed that, although the management accounts of the target assets had to be based on historical figures, it was possible to proceed on the basis of reasonable adjustments on an “as if ” basis, on the assumption that the acquired assets had been run in accordance with the new model.[33] 33.It was the 1st appellant’s case that he was not involved in the compilation of the accounts by the 3rd appellant. He was entitled to and did rely on ShineWing, the professional accountants, to ensure that the figures provided by the 3rd appellant were appropriate for use in the circular. The 1st appellant was not involved in the preparation of the circular and did not reply to emails sent to him by the 3rd appellant that were relevant to the issue. There was no evidence that the Tab 11 accounts had been sent to the 1st appellant. 34.It was the 3rd appellant’s case that he was unaware that the representation that the gross profit for the year ended 31 May 2009 was $92,520,000 was based on the figures he had supplied ShineWing. In any event, he played no part in advancing those figures to the SEHK or in including them in the circular published by 462 and made available to its shareholders. He was not familiar with the Listing Rules of the SEHK. Grounds of appeal against conviction The 1st appellant 35.Ms Montgomery QC, on behalf of the 1st appellant, has advanced five perfected grounds of appeal. Ground 1 is centred on particulars (a) and (b) of Counts 1 and 2. Essentially, it is averred that the misrepresentations in particulars (a) and (b) of each count were derived from the Listing Rules, and that it was for the prosecution to prove beyond reasonable doubt that the 462 acquisition was a “connected transaction” between “connected persons” within the meaning of the Rules. That was a matter of law for the judge to determine and, since it was not a “connected transaction” under the Listing Rules, the case based on these particulars ought to have been withdrawn. Instead, the judge erroneously allowed the prosecution to proceed on the basis, not that it was a “connected transaction” between “connected parties” under the Listing Rules but that in some general, undefined way the 1st and 2nd appellants were “working together” to defraud 462. We shall refer to this as the Connected transaction ground. 36.Ground 2 concerns the CSA. In essence, it avers that the judge wrongly permitted the jury to find that the non‑disclosure of the CSA could amount to a conspiracy to defraud, when on the evidence there was no such duty of disclosure. Further, the judge gave erroneous directions as to the 1st appellant’s state of mind in respect of disclosure. 37.Ground 3 complains that there were two conspiracies on the evidence, one allegedly involving the 1st and 2nd appellants in relation to particulars (a) and (b), the other involving the 3rd appellant and the 2nd appellant in relation to particulars (d) and (e). Accordingly, the judge failed to direct the jury that they must be sure of a single supervening conspiracy, of which the 1st appellant was a part. We shall refer to this as One conspiracy or two? ground. 38.Ground 4 alleges that the summing up was unbalanced in essentially three ways: (i) the judge failed to sum up the 1st appellant’s case appropriately and to direct the jury properly as to his own subjective dishonesty; (ii) she failed to identify significant inconsistencies in the prosecution case, while emphasising inconsistencies and illogicalities in the defence case; and (iii) she made adverse comments detrimental to the defence, some of which had not been advanced by the prosecution and which, therefore, the defence had no opportunity to answer. 39.The last ground of appeal (Ground 5) avers that the New Zealand depositions were inadmissible. Such unfairness indirectly affected the 1st appellant. The 2nd appellant 40.No fewer than twelve grounds of appeal against conviction were advanced by Mr Winter QC on behalf of the 2nd appellant. By Ground 1, it was argued that, as a matter of law, the SEHK has no public duty to allow or prevent the publication of announcements or circulars; accordingly, Count 1 should have been quashed or withdrawn from the jury. 41.By Ground 2, it was complained that the judge had erred in law in directing the jury that, for Count 1, it was sufficient if they were sure that the 2nd appellant “had agreed to use dishonest means to bring about a state of affairs which [she] intended to, or realised might, cause [the SEHK] into acting or failing to act” – so that [the SEHK] would perform an act contrary to its public duty. It was contended that to ground the offence, the jury must be sure that the 2nd appellant had intended to cause the SEHK to act or not act; it was not enough for her to have realised that the SEHK might be caused to act or not act. 42.Ground 3 and Ground 7 criticised the judge for failing to separate and distinguish the two conspiracies alleged in Count 1 and Count 2 in that:
43.By Ground 4 and Ground 9(i)‑(iii), it was contended that, as a matter of law, the representations in particulars (a) to (c), common to both Count 1 and Count 2, were true: the parties involved in the acquisition were “independent” and the acquisition was not a “connected transaction”. The judge should have so ruled and directed the jury accordingly. However, she failed to do so. 44.Ground 5 and Ground 8 criticised the judge for failing to quash particulars (d) and (e) of Count 1 and Count 2. There was evidence to show that, by July 2010 at the latest, the 3rd appellant had supplied ShineWing with the true financial information. Much earlier, the 2nd appellant herself had informed ShineWing that the figures to be included in the circular would be based on projections. 45.By Ground 6, it was argued that the judge was wrong to have allowed William Wong to give expert evidence on the meaning and interpretation of the Listing Rules. That was a matter of law and could not be the subject of expert opinion. 46.Ground 9(iv)-(vii) and Ground 12 criticised the judge for failing to sum up the evidence adequately, in particular by omitting matters that were favourable to the 2nd appellant. Ground 11 criticised the judge for failing to redress in her summing up the prejudices and unfairness that the prosecution had engendered in their opening and closing speeches. 47.Finally, by Ground 10, it was submitted that the judge had erred in exercising her discretion to admit the depositions of witnesses taken in New Zealand. However, in the written submissions submitted on behalf of the 2nd appellant, the Court was informed that the ground was no longer pursued. The 3rd appellant 48.By Ground 1, Mr Fitzgerald QC submitted on behalf of the 3rd appellant that the judge erred in admitting into evidence the deposition of David Wiltshire taken in New Zealand. A renewed application was made for leave to appeal on the grounds that the judge had failed to identify the scope of her order to admit evidence relating to business records and her ruling that it was not reasonably practicable to secure the attendance of David Wiltshire, which grounds had been refused by the single judge. 49.Next, by Ground 2, it was submitted that the judge had erred in ruling that the 3rd appellant had a case to answer on each of Counts 1 and 2. There was no evidence, and certainly no reliable evidence, that the 3rd appellant was a party to an agreement to dishonestly represent falsely that the gross profits of the properties and fixed assets of the dairy farms for the year ended 31 May 2009 was $92,520,000. The 3rd appellant played no part in making that representation to the SEHK or in the circular to 462 and its shareholders. On the contrary, there was evidence from the prosecution witnesses that ShineWing had been informed that the figures provided by the 3rd appellant were based on assumptions. Andy Wong testified that it was reasonable to do so. There was no evidence, and certainly no reliable evidence, that the 3rd appellant was a party to an agreement to dishonestly conceal or failed to disclose the true financial position of the dairy farms. On the contrary, there was evidence from ShineWing witnesses that the 3rd appellant had disclosed the Tab 11 accounts, provided to him by Mark King on 15 June 2009, in particular that they had done so before they left New Zealand. 50.Then, by Ground 5, it was submitted that the judge had failed to direct the jury as to the significance of the absence in the prosecution case of expert evidence as to what was the correct figure of gross profit for the dairy farms. In the absence of such evidence, there was no proper basis to establish the alleged falsity of the figure of $92,520,000 for gross profit stipulated in the circular. 51.Next, by Ground 7, it was contended that the judge had failed to leave to the jury the issue of whether or not there was a causative link between the alleged false representations, acts of concealment or failures to disclose set out in particulars (a) to (d) and the consequence alleged in particular (f) of Count 1, namely causing the SEHK to allow the publication by 462 of the announcement and the circular, and the consequences alleged in particulars (f) and (g) of Count 2, namely causing 462 and its existing shareholders to approve the Acquisition and causing 462 to issue and release convertible notes and an optional bond. Further, by Ground 8, it was submitted that the judge had failed to direct the jury to consider whether or not it was proved that the 3rd appellant had entered either or both conspiracies with intent to cause the particular consequences stipulated in the Particulars of Offence. The importance of such a direction to the 3rd appellant lay in the fact that first, there was no evidence that the 3rd appellant stood to or did profit from the alleged conspiracies; secondly, the 3rd appellant expected other professionals to take responsibility for the actual use of the figures that he had provided. 52.Then, by Ground 9, it was submitted that the judge’s summing up was unfair and unbalanced towards the 3rd appellant. The judge dealt with the evidence of Doris Yiu and William Li unfairly.[34] They had seen the documents in Tab 11. The judge strove wrongly to diminish the effect of that evidence. Further, the judge had failed to direct the jury as to the significance of the evidence of Andy Wong.[35] The judge was wrong to direct the jury that it was not material that no expert evidence had been called to address the issue of what the correct figure was for the gross profit. Whilst it was conceded that the judge had reminded the jury of the contemporaneous documents which supported the assertion that the 3rd appellant intended the figures he provided to be based on assumptions, complaint was made that the judge failed to direct the jury that the evidence went to the issue of a lack of dishonest mens rea. 53.Finally, by Ground 11, it was submitted that the judge had erred in failing to give the 3rd appellant the benefit of a good character direction. Whilst it was acknowledged that the 3rd appellant had a criminal conviction, it was a wholly unrelated nature to the offences in the indictment and had been committed when the 3rd appellant, now a middle‑aged man, was a juvenile. Further, it was contended that there was positive evidence of good character. In those circumstances, the 3rd appellant ought to have received the benefit of at least a qualified good character direction. The respondent’s submissions 54.For the respondent, in her lengthy written and oral submissions Ms Draycott SC opposed each and every one of the grounds of appeal advanced on behalf of the three appellants. Where it is necessary to do so, we shall refer to her submissions in the context of a consideration of the arguments advanced on behalf of the respective appellants. A consideration of the submissions One conspiracy or two? 55.The issue of the propriety of the particulars of Counts 1 and 2 was engaged by the 1st appellant and the 3rd appellant, albeit on slightly different terms. Ms Montgomery, on behalf of the 1st appellant, contended (by Ground 3 of the 1st appellant’s grounds of appeal) that the judge failed to direct the jury that they could convict the 1st appellant on particulars (d) and (e) of the conspiracy alleged in Count 1, only if they were sure there was a single conspiracy and that the 1st appellant was party to that conspiracy. She submitted that such a direction became necessary because the evidence by the close of the case was consistent with one conspiracy formed between the 2nd appellant and the 3rd appellant in relation to particulars (d) and (e), and another separate conspiracy formed between the 1st appellant and the 2nd appellant in relation to particulars (a) to (c). Therefore, there were two conspiracies and the conspiracy averred by Count 1 was “latently duplicitous”, with consequences for the application of the co‑conspirator’s rule to the evidence relevant to each individual conspiracy. 56.Ms Montgomery relied, in support of the contention that there were two conspiracies rather than one, on the decision of the High Court of Australia in Gerakiteys v The Queen [36]. She argued that if the 1st appellant and the 2nd appellant (but not the 3rd appellant on the judge’s clear directions) were parties to the misrepresentations averred in particulars (a) to (c) of either count under consideration, and if the 3rd appellant and the 2nd appellant (but not the 1st appellant on the evidence) were parties to the misrepresentations in (d) and (e), the 1st appellant having merely been copied certain emails to which he did not respond, then there were effectively two separate conspiracies, subsumed within a single conspiracy charge. 57.Mr Fitzgerald, on behalf of the 3rd appellant, adopted Ms Montgomery’s argument in his oral submissions, although he had initially characterised the complaint somewhat differently in both his perfected grounds of appeal and his written argument. His original ground of appeal (Ground 8 of the 3rd appellant’s grounds of appeal) complained that the judge had failed to direct the jury in the 3rd appellant’s case to consider whether his client had entered into the conspiracy with intent to cause the particular consequences set out in particular (f) in Count 1, and particulars (f) and (g) in Count 2. This was said to be of particular importance, since there was no evidence that the 3rd appellant stood to gain from the conspiracies; moreover, he was entitled to expect that ShineWing would take responsibility for any figures ultimately provided to the SEHK and 462. However, seizing on the principle articulated by Brennan J in Gerakiteys v The Queen [37], that:
Mr Fitzgerald sought to argue that the prosecution could not prove the 3rd appellant’s involvement in causing the SEHK to allow the publication of the announcement as distinct from the circular, both of which formed the results or objectives of the dishonest agreement pleaded in particular (f) of Count 1; nor could the prosecution establish that the 3rd appellant had caused 462 and its existing shareholders to approve the agreement for the Acquisition (the result or objective of the dishonest agreement in particular (f) of Count 2), or to issue and release notes and an optional bond for the repayment of the Acquisition (the result or objective of the dishonest agreement in particular (g) of Count 2). 58.Accordingly, whilst the point advanced by Mr Fitzgerald was initially somewhat differently framed from that put forward by Ms Montgomery, both ultimately submitted that each of Counts 1 and 2 improperly averred more than one conspiracy. 59.In considering this complaint, it is necessary to analyse each of the two respective counts and identify what were the essential ingredients of each offence. In so doing, it is fundamental to bear in mind that the allegation in each count was one of conspiracy to defraud. The essence of the criminality in each count lay, therefore, in the agreement by the named defendants to defraud the named victim. As the Court of Appeal of England and Wales put it in R v K and Others [38], at para 35:
60.That statement of the law was, of course, made in the context of an economic fraud conspiracy, such as that countenanced by Count 2. However, we consider that it would apply with equal force to a public duty fraud conspiracy, such as that averred in Count 1. 61.The essence of the allegation in Count 1 was that the 1st appellant, the 2nd appellant and the 3rd appellant had agreed together to defraud SEHK, by dishonestly causing SEHK to act contrary to its public duty as the regulating body of the stock market in allowing 462 to publish an announcement dated 4 June 2009, and a circular dated 8 September 2009, in respect of the Acquisition by 462 from UBTL of the entire issued share capital of UBNZ Assets Holdings Limited. The dishonest means by which the conspirators intended to achieve their objective of causing SEHK to act contrary to its public duty in this way (namely, particular (f)) were the series of misrepresentations identified (namely, particulars (a) to (e)). By “misrepresentations”, we include concealments and failures to declare or disclose. 62.Analysed in this way, and applying the rationale in R v K, it did not matter how the conspirators individually intended to go about executing the fraud, or actually went about executing the fraud. Nor did it matter whether they succeeded in their aims. Their criminality lay in their agreement to cause the Stock Exchange to act contrary to its public duty by dishonest means. The misrepresentations at particulars (a) to (e) were the various means employed by the individual conspirators to implement their agreement and to demonstrate their dishonest intention (also sometimes referred to as overt acts). The specific result or objective of those misrepresentations was set out at particular (f). 63.The essence of the allegation in Count 2 was that the 1st appellant, the 2nd appellant and the 3rd appellant had agreed together to cause economic loss to 462 and its existing shareholders (or place their economic interests at risk), by dishonestly causing 462 and its existing shareholders to approve the agreement for the Acquisition at an EGM of shareholders on 2 October 2009, and causing 462 to issue and release convertible notes and an optional bond for the payment of the Acquisition on 21 December 2009. The dishonest means by which the conspirators intended to achieve these objectives (namely, particulars (f) and (g)) were the series of misrepresentations (by which we again include concealments and failures to declare or disclose) identified (namely, particulars (a) to (e)). 64.Again, analysed in this way, and applying the rationale in R v K, it did not matter how the conspirators individually intended to go about executing the agreement to defraud, or actually went about executing the fraud. Nor did it matter whether they succeeded in their aims. Their criminality lay in their agreement to cause loss to 462 and its existing shareholders (or place their economic interests at risk) by dishonest means. The misrepresentations at particulars (a) to (e) were the means employed by the individual conspirators to implement their agreement and to demonstrate their dishonest intention. The specific result of those misrepresentations were those spelled out in particulars (f) and (g). 65.This analysis has been helpfully explained by Professor Ormerod in his commentary to the report of R v K in the Criminal Law Review [39]. Distinguishing between the ingredients of the offence of conspiracy to defraud and the particulars provided, he said [40]:
66.The section in the 2005 Edition of Archbold to which Professor Ormerod was referring reads [43]:
67.If our analysis of the ingredients of the two counts is correct, it was possible for each of the accused to have made a different misrepresentation (or performed a different overt act), either individually or together with another conspirator, pursuant to the overall agreement to defraud either SEHK (Count 1), or 462 and its existing shareholders (Count 2), by dishonest means. 68.Nevertheless, the judge directed the jury that an appropriate majority of the jury must agree that the particular misrepresentation under consideration was proved. To that end, she gave what has come to be known as a Kevin Brown direction [45]:
69.It is not disputed that the judge was clearly giving the Kevin Brown direction in respect of both counts. 70.Moreover, notwithstanding our view that an overt act could have been performed by an individual defendant provided it revealed his dishonest participation in the conspiracy, the judge nevertheless directed the jury that they had to be sure that an individual accused was acting with at least one other accused in respect of at least one particular: if he or she made the misrepresentation on his own, then all of the accused were not guilty of that particular [46]:
71.In our view, this was neither a case which called for a Kevin Brown direction nor was it necessary for the jury to be told that at least two of the defendants had to agree on any one misrepresentation. What the jury had to find proved by at least a majority was that the defendants agreed to cause SEHK to act contrary to its duty by dishonest means (Count 1); or that they agreed to cause economic loss to 462 or its existing shareholders (or place their economic interests at risk) by dishonest means (Count 2). 72.If we go back to fundamentals, the direction approved by the Hong Kong Judicial Institute in respect of conspiracy is as follows: “ Before you can convict either/any of these defendants of this offence, you must be sure:
As we shall see [47], the judge gave this direction to the jury by way of written hand-out [48] and oral direction [49]. 73.Accordingly, applying the direction to Count 1, what the jury had to be satisfied about so that they were sure was that each defendant agreed with at least one other that SEHK should be defrauded, that is caused to act contrary to its public duty by dishonest means, and that at the time of so agreeing, that defendant intended that the fraud should be carried out. Applying the same direction to Count 2, what the jury had to be satisfied about so that they were sure was that each defendant agreed with at least one other to cause loss to 462 or its existing shareholders (or place its economic interests at risk) by dishonest means, and that at the time of so agreeing, that defendant intended that the fraud should be carried out. 74.If we assume, for the purposes of illustration, that the object of the conspiracy was not a fraud but an armed bank robbery, it may be that one or other of the conspirators obtained a gun; another, masks; another, gloves; another, a car; while another positioned himself as a lookout in the street. It was not necessary for all conspirators to have agreed on the precise means or roles necessary to execute the crime, provided they agreed that there would be a bank robbery and each intended to play their part in executing it. It would, in those circumstances, be entirely possible to divine a conspirator’s intention to participate in the crime by looking at his overt act, which may have been conducted on his own and not together with anyone else. 75.Equally, if two of a number of robbers together procured the gun, two bought gloves, two bought masks, or two hired a car, it would not mean that there was a central conspiracy to rob and four sub‑conspiracies: there would be one over‑arching conspiracy to rob the bank, in which the different players did different acts, either on their own or, in this illustration, together with another. Indeed, the conspirators may well have joined the conspiracy at different times. However, provided all agreed to rob the bank and intended that the crime should be carried out, all would be guilty, even though some may have done some acts, individually or together, while other conspirators did others. 76.Whilst we do not think, on the reasoning of the Court in R v K, that this was a case which called for a Kevin Brown direction, nor do we consider that there had to be an agreement between at least two conspirators in relation to any one particular, the fact is that both such directions were given by the judge in this case. Such directions were entirely favourable to the defence and served to cement the participation of each of the appellants in each conspiracy. 77.Furthermore, the judge also directed the jury that, in convicting the defendants, not only did they have to find that at least two defendants agreed upon at least one of particulars (a) to (e) in each respective count, but they also had to find that each defendants intended the results or objective of the misrepresentations (particular (f) in Count 1 and particulars (f) and (g) in Count 2)[50]:
Clearly, by their verdicts, the jury must have been satisfied that all three appellants shared those common objectives. 78.We pause here to note in respect of Mr Fitzgerald’s discrete argument on behalf of the 3rd appellant that, assuming the jury were faithful to that particular direction, they must have been satisfied that the 3rd appellant intended the full consequences set out in particular (f) of Count 1, namely the allowing by SEHK of the publication of both the announcement and the circular; and the full consequences set out in particulars (f) and (g) of Count 2, namely the approval of the Acquisition by 462 and its existing shareholders and the ensuing issuance of convertible notes and the optional bond. 79.Consequently, it seems to us that the judge went much further than the terms of each count required her to do as a matter of law. But having done so, the jury must, assuming they followed faithfully these directions, have been satisfied so that they were sure that at least two of the accused (one of whom must have been the 3rd appellant) agreed to misrepresent the gross profit of the relevant properties for the year concerned and/or concealed or failed to disclose the true financial position of the properties. The possibility contended for by Ms Montgomery that the jury might not have been sure of the 1st appellant’s complicity in particulars (d) and/or (e) but that they were sure of his complicity with the 2nd appellant in particulars (a), (b) and/or (c), thus suggesting two different conspiracies, does not appeal to us and is inconsistent with the approach in R v K. These were not two different conspiracies: they were different misrepresentations (or overt acts) by different combinations of conspirators, all done with the same dishonest intent to cause SEHK to act contrary to its duty (Count 1) or to cause economic loss to 462 and its existing shareholders (or put their economic interests at risk) (Count 2). 80.We note the criticisms of the decision in R v Fussell [51]made by the late Professor Sir John Smith, which were recited by the Court in R v K [52], and also referred to in the commentary on R v K by Professor Ormerod[53]. Both the Court and Professor Ormerod termed those criticisms as “misplaced” [54], the Court explaining that [55]:
whilst Professor Ormerod considered that:
81.It must be remembered that the count under consideration in R v Brown (Kevin) was not a conspiracy, nor were the particulars of the charge in that case concerned with particularising (or delineating) the nature or extent of an agreement: the particulars were themselves the inducements averred in order to prove the substantive offence of fraudulently inducing investments, contrary to section 13(1)(a) of the Prevention of Fraud (Investments) Act 1958. They were the very ingredients of that offence. 82.Accordingly, as we have said, we do not consider that a Kevin Brown direction was required in the present case, nor do we consider that at least two of the defendants had to agree on any of particulars (a) to (e). Consequently, we cannot accept Ms Montgomery’s submissions that there were two conspiracies in either count thus rendering the indictment improper or latently duplicitous or making the 1st appellant’s conviction (or the other two accused) unsafe or unsatisfactory as a result. Ms Montgomery has said in terms that she thinks Professor Ormerod (and by implication the Court in R v K) were wrong. However, we note that even if Sir John Smith was correct in his criticisms of the decision in Fussell [56], he considered that a Kevin Brown direction would be necessary and that “it would be enough that the jury was satisfied as to one allegation, but it should be made clear to them that this, at least, is necessary.” In the case before us, that is exactly what the jury were told when the Kevin Brown direction was given. 83.Ms Montgomery has sought to suggest that there is a divergence between the approach of the appellate courts to conspiracy to defraud in the United Kingdom and Hong Kong. She argues that whatever the approach of the Court of Appeal in England and Wales in R v K to the ingredients of the offence, the Court of Final Appeal in Mo Yuk Ping v HKSAR[57] have held in respect of the essential elements of conspiracy to defraud [58]:
The Court went on to say:
84.It is true that R v K was not referred to in the judgment of Sir Anthony Mason NPJ, in giving the judgment of the Court in Mo Yuk Ping, although it was evidently cited to the Court [59]. Given the importance of the principles clarified in R v K since 2005, we cannot accept that it would have been ignored or disregarded by the Court in Mo Yuk Ping, if the Court were minded to depart from what was said in R v K. We do not, however, consider that there is any variance between the approach to the common law offence in the United Kingdom and Hong Kong. Once it is appreciated that the essential criminality identified in the common law offence of conspiracy to defraud is the agreement to effect a fraud upon another, be it an economic fraud or a public duty fraud, by the employment of dishonest means to achieve that aim, then it matters not whether the means agreed upon by the conspirators were in fact employed or whether they achieved their objective using those means. What matters is what the conspirators agreed to do. As the Court put it in Mo Yuk Ping [60]:
85.In her reply on this ground of appeal, Ms Montgomery further developed her argument that there was a divergence between R v K in England and Wales and Mo Yuk Ping in Hong Kong. Arguing that Professor Ormerod had incompletely stated the law in relation to conspiracy to defraud, she submitted that the law on the subject was “looser” in England and Wales, and “more stringent” in Hong Kong. She regarded the judgment in Mo Yuk Ping as a clarification of the law of conspiracy to defraud that has not been achieved to the same extent in English law. Thus, she argued that if the prosecution seeks to indict conspiracy to defraud, it must identify the dishonest means employed and then specifically prove the agreement by the conspirators to employ those particular dishonest means. She did, however, accept that it was possible to indict a conspiracy to defraud in broad terms, such as an agreement to make false representations about the financial affairs of a company for the purposes of defrauding anyone who dealt with it (which was essentially the charge in R v K). In the present case, however, there was a particularised allegation of specific dishonest means on which the conspirators had to agree. 86.Ms Montgomery sought to derive support for her argument from the decision in R v Bennett [61], where there were three distinct stages averred in a conspiracy to defraud computer companies, namely (i) dishonestly obtaining the account details of credit card holders; (ii) falsely purporting to be in possession of those details; and (iii) dishonestly using such details to obtain goods and services. This, she maintained, was very similar to the counts on the indictment in this case. The Court in Bennett observed that someone may have been involved in stage (i), but not have been a party to stage (ii) or (iii). In such circumstances, it was a misdirection to instruct the jury “that a defendant would be guilty of conspiracy if he knew only one part of the agreement and did not know and agree to the other two parts” [62]. 87.In our judgment, the case before us was not a Bennett‑type case at all. To understand the distinction between Bennett and R v K, we need, as we said at the outset of our consideration of this ground of appeal, to identify the ingredients of the offence alleged. In Bennett, although the three stages averred could also be said to be overt acts of dishonesty, they were the very objectives of the conspiracy itself and, as the learned authors of Archbold (2018 Edition) comment:
Bennett is earlier cited in the same edition of Archbold for the proposition that “where a count of conspiracy to defraud alleges an agreement to achieve two or more distinct objectives, each objective is an essential element which must be proved” [64]. 88.As a matter of plain language, particulars (a) to (e) were not the objectives of the conspiracy, they were the means by which the objectives were to be achieved; or, to use the language of Professor Ormerod, they detailed “the manner in which the agreement was implemented”. 89.We further note that in Bennett, whilst acknowledging that a defendant may only have been involved in stage (i) of the conspiracy to defraud, the Court nevertheless held, at page 2, that
The judge in the present case directed the jury in conformity, it seems to us, not only with the Specimen Directions in Jury Trials applicable in Hong Kong, but also with that statement in Bennett. Her printed directions, which were faithfully conveyed in oral instructions were [65]:
90.Later, the judge directed the jury, again in conformity with the Specimen Directions in Jury Trials [66]:
It seems to us that the jury were correctly instructed that whatever overt act an individual defendant may have performed, provided at the time he did the act he had agreed that the crime should be committed and intended that it should be carried out, he was guilty of conspiracy. The problem in Bennett was that a later “impeccable” direction by the trial judge was preceded by an earlier “garbled” one that appeared to suggest that the defendants could be guilty of the conspiracy alleged even if they only believed that the conspiracy was to acquire dishonest information about credit card numbers (stage (i)). That is not the position in the case before us either in terms of the averments in the counts themselves, or in the directions to the jury as to how to approach the particulars of each count. 91.In many conspiracies, it may well be that the conspirators have not thought of every detail that may be necessary to commit the offence. There may be changes or improvisations to ensure that the objective is achieved, steps may have to be taken to overcome unexpected hurdles, and others may be brought into the conspiracy to deal with specific details or problems. In a conspiracy to be practised on the SEHK so as to achieve the objective of getting the SEHK to allow the publication of an announcement and circular, the conspirators may not know beforehand what information the SEHK may require, or later request, in the process of evaluating the application. But one thing upon which the conspirators must agree in order to be guilty of conspiracy to defraud the SEHK is that they will employ dishonest means to achieve their objective; and that connotes that they will employ the dishonest means necessary to achieve their objective. 92.The prosecution case was that the defendants agreed together to use dishonest means to ensure that the SEHK would allow 462 to publish an announcement and a circular concerning the Acquisition (Count 1). Once the SEHK had done that, the way was clear for 462 and its existing shareholders to be caused to approve the Acquisition and for 462 to issue convertible notes (Count 2). Without the SEHK’s approval of the announcement and circular in respect of a very substantial acquisition, the Acquisition could not have taken place. Counts 1 and 2 represented two distinct steps in the process of the Acquisition and were properly indicted as separate conspiracies. However, we reject the notion that Count 1 involved two different conspiracies. The prosecution case was that all the appellants had agreed on the respective objective but different combinations of parties performed different functions in order to attain that objective: the 1st appellant and the 2nd appellant performing particulars (a), (b) and (c); the 1st appellant, the 2nd appellant and the 3rd appellant performing particulars (d) and (e) in each count. No one can have been under any misapprehension about the way the prosecution was putting its case and the judge made it clear at the outset of her summing up:
93.We can see no error in putting the case in this way. Indeed, we think it was the correct way to put such a case and was in conformity with both R v K and Mo Yuk Ping, between which authorities we see no tension at all. It was also in conformity with Bennett. But even if we had seen such tension and accepted Ms Montgomery’s argument that particulars (a), (b) and (c) of each count represented one conspiracy between the 1st appellant and the 2nd appellant, while particulars (d) and (e) represented a separate conspiracy between the 1st appellant, the 2nd appellant and the 3rd appellant, we do not consider that it would lead to the overturning of the 1st appellant’s conviction. 94.Furthermore, we accept that Counts 1 and 2 were separate but related conspiracies, in that the achievement of the objects of the first conspiracy was a step to achieving the ultimate purpose, which was the object of the 2nd conspiracy. Accordingly, the prosecution was entitled to prefer two separate counts on the indictment. We do not accept that there is any merit in Mr Winter’s submissions that there was an improper mirror‑imaging of the conspiracies in Count 1 and Count 2. The 1st appellant’s knowledge of and involvement in the conspiracy to falsify the accounts 95.It is clear that by convicting the 3rd appellant, the jury must have been satisfied, in conformity with the judge’s directions earlier considered, that he had conspired to falsify the accounts with at least the 2nd appellant and/or the 1st appellant. The evidence of the 2nd appellant’s knowledge and involvement in that exercise was overwhelming and will be discussed elsewhere in this judgment. But the inference of the 1st appellant’s knowledge and involvement in the preparation of fraudulent accounts was also highly compelling. 96.Quite apart from the other evidence of the 1st appellant’s connection with the other parties to the conspiracy, the 1st appellant was copied into some highly significant correspondence between the 2nd appellant and the 3rd appellant detailing the progress of the manipulation of the figures in the accounts. It is convenient, at this juncture, for us to deal with some of those emails. Emails copied to the 1st appellant 97.On 16 June 2009, the 3rd appellant wrote an email (referred to as the “Armageddon email”) to the 2nd appellant, copied to the 1st appellant, saying that if the real figures were released to ShineWing for the 10 months up to 31 March 2009, there would be serious problems. He wrote [68]:
It must be remembered that the 1st appellant was, at the time he received a copy of this email, the Executive Director, Joint Chairman and Chief Executive Officer of 462, the publicly listed company looking to acquire the farms. As Ms Draycott forcefully submitted, it would be “unimaginable” that such an email would have been deliberately copied to the 1st appellant, if he really was “on the other side of the Acquisition”. Katherine Chan was obviously never alerted to “Armageddon”. The copying of the email to the 1st appellant plainly demonstrated that he, the 2nd appellant and the 3rd appellant were on the same side. 98.If the copying of such a devastating email as the Armageddon email to the 1st appellant was a mistake, it was then repeated later that day by the 3rd appellant sending the 2nd appellant another email, also copied to the 1st appellant, effectively asking if he could now release the “adjusted” accounts, with the interest of NZ$5,420,975 removed, to ShineWing [69]. 99.On 20 June 2016, the 3rd appellant sent the 2nd appellant another email, also copied to the 1st appellant, containing an article from a New Zealand newspaper headlined: “Dairy farmers reel under $27b debt load” [70]. We agree with Ms Draycott that this would hardly be the sort of information a vendor would be sending to a prospective purchaser, who is aiming to persuade shareholders of the merits of the deal. 100.On 24 June 2009, the 3rd appellant asked the 2nd appellant by email, again copied to the 1st appellant, if he could release the accounts for the last two farms [71]. On 26 June 2006, the 3rd appellant sent the 2nd appellant another email, also copied to the 1st appellant, saying that he had managed to reduce the loss on another farm by NZ$1,176,637 and advising that Mark King had revised his earlier accounts in which he had mistakenly included a NZ$8,094,731 profit when it should have been a loss (referred to, because of the subject of the email, as the “big bad news” email) [72]. As a result of Mark King’s error, the 3rd appellant evidently had to further massage the figures. 101.The result of that exercise was that the 3rd appellant was able to put the figures back into profit by a process of “amortisation”. This he explained in a further email to the 2nd appellant, again copied to the 1st appellant, on 27 June 2009 [73]. This has been referred to as the “haha” email because, in it, the 3rd appellant refers to the possible comeback from ShineWing who “will argue for the value (of the cows) set at NZ$1,800 instead of NZ$1,312 …. Haha. Then we will lost (sic) $755,981 from $9,683,726”. The revised accounts were sent by email to the 2nd appellant, copied to the 1st appellant, a little later on the same day [74]. Again, we wonder why the 3rd appellant would be revealing these methods of doctoring the accounts with the intended purchaser, if the 1st appellant was not party to the agreement to do so. 102.On 29 June 2009, the 3rd appellant received an enquiry from Kevin Cheng at ShineWing concerning the inclusion of the income from the trading in livestock as part of the turnover. This enquiry was then forwarded by the 3rd appellant to both the 2nd appellant and the 1st appellant on the same day, one obvious implication being that the 3rd appellant was asking what he should do about it. On 3 July 2009, the 3rd appellant asked the 2nd appellant by email, again copied to the 1st appellant, for advice in relation to the revised forecast for 2010 [75]; a further email to the 2nd appellant on the same subject followed the next day, 4 July 2009, again copied to the 1st appellant. 103.There were other emails copied to the 1st appellant. However, those we have referred to above point unmistakably and irresistibly to the 1st appellant’s participation in an agreement that the accounts should be manipulated and the true financial position of the farms concealed. It is fanciful to suppose that anyone receiving such correspondence detailing the problems with the figures and the ways they were to be “adjusted” so as to convert a significant loss to a healthy profit would not be a party to the fraud, particularly when that person was none other than the proposed purchaser. Nowhere do we see any reprimand from the 2nd appellant to the 3rd appellant for forwarding these emails and financial information to the 1st appellant, and yet we can see from her email of 15 June 2009 to the 3rd appellant that she was adamant that nothing was to be released to anyone without going through her first. In that email, she set out the 3rd appellant’s terms of reference in clear, unambiguous terms, inter‑alia:[76]
104.These clear and unambiguous instructions were communicated by the 2nd appellant to the 3rd appellant on 15 June 2009. The series of emails referred to above, all of which were copied by the 3rd appellant to the 1st appellant between 16 June 2009 and 3 July 2009, were in defiance of those clear instructions, yet the 2nd appellant never saw fit to reprimand the 3rd appellant in writing or, according to the 3rd appellant’s evidence, orally[77], for revealing such information to someone who was at the time Executive Director, Joint‑Chairman and Chief Executive Officer of the proposed purchaser. There can only sensibly be one reason for that: the 1st appellant was a party to the agreement to produce false accounts. Conclusion 105.Accordingly, looking at the facts of the case, the 1st appellant’s close involvement with the 2nd appellant and the 3rd appellant and his deliberate inclusion in the ongoing process of falsification of the accounts, at the very time they were being manipulated by the 3rd appellant, we cannot accept the factual premise of Ms Montgomery’s conspiracy argument that the jury might conceivably have thought that the 1st appellant was not a party to the dishonest means set out in particulars (d) and (e) of each conspiracy count, whereas the 2nd appellant and the 3rd appellant were. The evidence is irresistible that the 1st appellant was a knowing participant in the falsification of the accounts. The 3rd appellant submissions: one conspiracy or two? 106.We return to the argument put forward by Mr Fitzgerald as to whether there was one conspiracy or two as it relates specifically to the 3rd appellant in respect of the results or objections averred in each count. We cannot accept, for many of the same reasons earlier discussed that particular (f) in Count 1, and particulars (f) and (g) in Count 2 subsumed two separate conspiracies in a single count; in circumstances where the 3rd appellant was engaged in matters leading to the publication of the circular dated 8 September 2009, but not necessarily the announcement dated 4 June 2009 (particular (f) of Count 1), he having claimed that he was only invited to prepare the accounts on 5 June 2009; and in circumstances where he had no part in the subsequent approval of the acquisition by 462 and its existing shareholders, or in the decision by 462 to issue the convertible notes (particulars (f) and (g) of Count 2 respectively). 107.Firstly, the judge gave the jury a perfectly fair direction that they should bear in mind any lack of participation on a defendant’s part in considering whether that defendant was a party to the conspiracy alleged:
108.Secondly, one might ask the obvious question, in the context of a conspiracy, whether the charges would have been defeated if the SEHK had not allowed the publication of either the announcement or the circular or both (particular (f) of Count 1); or 462 and its existing shareholders had not approved the acquisition (particular (f) of Count 2); or 462 had not issued the convertible notes (particular (g) of Count 2). In our judgment, such eventualities would not have affected the criminality of the original agreement. It is trite law that the unlawful agreement is the offence: it is immaterial whether its purpose was ultimately achieved. 109.Thirdly, even if they were ingredients of the offence of conspiracy, the jury must have found, in accordance with the directions referred to (at paragraph 77 supra), that the 3rd appellant did dishonestly agree (with both the 1st appellant and the 2nd appellant) to procure the result or achieve the objective in particular (f) of Count 1; as well as one of the results or objectives in particulars (f) and/or (g) of Count 2. 110.Fourthly, the jury must have accepted, in accordance with the above directions, that all that which was averred in particular (f) of Count 1 and all that was averred in particulars (f) and/or (g) of Count 2 were proved in respect of each appellant. And, in the case of the 3rd appellant, that was presumably because, fifthly, there was a clear compelling inference to be drawn that the 3rd appellant was involved in the conspiracy well before 5 June 2009. 111.In this latter respect, the prosecution produced an email dated 10 June 2009 written by Kevin Cheng to Andy Wong and copied to the ShineWing team, including William Li [78], in which Kevin Cheng had written, inter‑alia:
Although Kevin Cheng could not remember who had told him this [79], while the 3rd appellant denied ever saying such a thing [80], William Li confirmed that he had received the 10 June email [81] and, when it was put to him by counsel for the 3rd appellant that the statement was a misunderstanding because the 3rd appellant “had only got into the project a few days ago” [82], William Li explained [83]:
112.The competing evidence of William Li and the 3rd appellant as to when the 3rd appellant had come into the picture in relation to the farm deal was placed before the jury by the judge in her summing up [84]. It was plainly an issue for them to determine. 113.Coincidentally, on the very same day, 10 June 2009, the 3rd appellant sent an email to the 2nd appellant, copied to the 1st appellant, requesting settlement for “overdue payment” and attaching a bill for NZ$328,481 in respect of work done “from 01‑June‑2008 to 10‑June‑2009” in respect of various specified 2008 farm valuations (which involved some of the relevant farms) [85]. It further included items for, inter‑alia, “Research done on subject property market transacted sale records, sale structure relevance, milk productions and proposed feasibly valuation options with cost in considerations. Conduct, corresponds and professionally execute the terms negotiation on your behalf to various municipal government authorities”; “Prepare, form and register farm valuations …”; “Numerous travelling to site and other relevant offices for verification and information gathering …”; and “Finalising with you on the final position of the valuation process after the due diligence process without any liability claim from intended reliant parties” [86]. While the 3rd appellant claimed in cross‑examination that the “1 June 2008” was a typographical error, and that the 2008 valuations came from the CraFarms Group valuation reports of that year, since the 2009 had not yet been released, the conflicting evidence as to the 3rd appellant’s involvement was firmly before the jury in the judge’s summing up [87]. The document was found in the 3rd appellant’s computer. 114.Other evidence showing a working relationship between the 3rd appellant and both the 2nd appellant and the 1st appellant well before 5 June 2009, such as a settlement agreement dated 3 February 2009 and a Sale and Purchase Agreement dated 10 February 2009, by which the 1st appellant purchased a property from the 2nd appellant [88], were also before the jury, as was the 3rd appellant’s evidence in respect of them [89]. 115.The judge could have given the direction now sought by Mr Fitzgerald[90]. However, such a direction was not sought by Mr Khosa, then acting for the 3rd appellant at trial, and the issue of whether the 3rd appellant joined the conspiracy as from 5 June 2009 (as he contended) or rather earlier (as the prosecution contended, and as the evidence just outlined suggested) was plainly before the jury in her summing up. Ultimately, as we have seen, the jury were directed that they had to sure, in addition to one of the particulars (a) to (e) being proved, that all three conspirators “intended to bring about the state of affairs alleged – the state of affairs or the result I have already gone through those with you. It’s particular (f) in Count 1 and particulars (f) and (g) in Count 2” [91]. It seems to us clear that the jury must have been satisfied so that they were sure on that direction that the 3rd appellant had agreed to join the conspiracy well before 5 June 2009. Whether he was still part of the conspiracy by the time 462 and its existing shareholders approved the acquisition on 2 October 2009, or at the time 462 issued the convertible notes on 21 December 2009, was neither here nor there if what he had agreed to do was to defraud 462 and its existing shareholders by dishonest means. 116.As Brennan J put the matter in Gerakiteys v The Queen :
117.In our judgment, the 3rd appellant qua accountant was in at least the position of the Post Office clerk exemplified in Paull J’s illustration, whether he had anything directly to do with SEHK, or 462 and its existing shareholders, or not. 118.Accordingly, we reject the arguments of Ms Montgomery and Mr Fitzgerald that there were two separate conspiracies subsumed within a single conspiracy count. The mens rea for public duty fraud 119.We can conveniently deal here with a discrete matter of law put forward by Mr Winter on behalf of the 2nd appellant. By Ground 2 of his perfected grounds of appeal, he argued that the judge had misdirected the jury in respect of Count 1, when she told them that it was sufficient if they were sure that the 2nd appellant “had agreed to use dishonest means to bring about a state of affairs which [she] intended to, or realised might, cause” the SEHK to act or fail to act contrary to its public duty [93]. He argued that in a public duty fraud, as distinct from an economic fraud, it was not sufficient that the accused had agreed to embark upon a course of conduct to cause someone to act contrary to his public duty, if he merely realised that his/her conduct might have that effect. The offence could only be made out if the accused fully intended that the other would act contrary to his public duty; and there was no scope for hoping that he might not. 120.Consequently, while a “benign” intent may nevertheless be sufficient in an economic fraud case were another’s economic interests are put at risk, however much the accused may not wish or intend to cause actual economic loss, Mr Winter submitted that such a lesser state of mind can never be sufficient in a public duty fraud because it is always unlawful for a public officer to breach his public duty. He drew support for the distinction on remarks by Lord Tucker in Board of Trade v Owen [94] that [95]:
121.Terming this the but for test in the sense that the public officer would not have acted in breach of his public duty but for the dishonest misrepresentation, Mr Winter also cited a passage from Welham v DPP [96], in the judgment of Lord Radcliffe [97]:
122.However, when we asked Mr Winter if he could think of any permutation of facts whereby an accused would agree with another to do something which he realised might rather than would cause someone to act contrary to his public duty, whilst nevertheless hoping that he did not act contrary to his public duty, he was unable to think of one. Nor have we have been able to do so. But, even if we had been able to imagine such circumstances, we do not think the argument has the slightest application to the facts in this case. Certainly, so far as particulars (d) and/or (e) are concerned, which on the judge’s directions the jury must have found established in order to have convicted the 3rd appellant on Count 1, it is inconceivable that anyone agreeing with him to falsify the accounts could at the same time have harboured a so‑called “benign intent” that the SEHK might not, by virtue of those falsifications, be caused to allow the publication of the announcement and the circular. Nor, if the jury were satisfied that the 1st and 2nd appellants had made any of the false representations in particulars (a), (b) and (c), can we think that either accused would have been in any state of mind short of fully intending that the SEHK would act contrary to its public duty. 123.In her reply to the respondent’s submissions, Ms Montgomery sought to ally herself with Mr Winter’s argument and develop the point, although it was not one of her original grounds of appeal. Adapting the facts in R v Toshack [98], referred to by Lord Radcliffe in Welham v DPP [99], she suggested that where, instead of forging a certificate of the master of a sailing ship in order to deceive the Trinity House examiners into granting the defendant his own master’s certificate, the defendant had in fact served the requisite five years under a captain but lost his certificate and could no longer locate the original captain (who may since have died) and so forged the captain’s signature on a replacement, the defendant might well have thought he was not causing a breach of duty by the Trinity House examiners because he was in fact qualified and would be granted a master’s certificate if he had the original document. In those circumstances, there is a potentially dishonest means but not with the purpose of inducing a breach of duty. 124.This is said to be “exactly the problem” exhibited by the facts of the present case: even if the defendants agreed that they would not tell the truth to the SEHK, but knew that the truth would not give rise to any breach of duty (because it was not a connected transaction), then they may have used dishonest means but not with the purpose of defrauding the SEHK. 125.We cannot accept this argument. The analogy is flawed because even if the appellant in Toshack had merely lost his original signed certificate but created a new one purporting to be signed by the missing (or deceased) captain, it would be a forgery, reliance upon which would be calculated to lead to the Trinity House examiners issuing a master’s certificate. As the Board of the Privy Council made clear in Wai Yu‑tsang v The Queen [100]:
126.We regard the argument put forward under this ground of appeal as of marginal academic interest but of no practical significance in the circumstances of this case. Moreover, we cannot help but observe that if this so‑called ‘misdirection of law’ was as significant as it is now portrayed, it was not drawn to the attention of the judge by Mr Fitzgerald, Mr Harris or Mr Khosa (then acting for the 1st, 2nd and 3rd appellants respectively at trial), notwithstanding the daily provision to all counsel of a Live Note transcript of proceedings, including the summing up. The ambit of the SEHK’s public duty 127.Mr Winter submitted that, as a matter of law, the SEHK has no public duty to allow or prevent the publication of announcements and circulars, so particular (f) of Count 1 was bad and the charge should either have been quashed or withdrawn from the jury. 128.Mr Winter’s argument can be succinctly summarised as follows:
129.We are not persuaded that this ground has merit. 130.Section 21(1)(a) of the SFO provides that “It shall be the duty of [the SEHK] to ensure, so far as reasonably practicable, an orderly, informed and fair market”. This necessarily includes the duty to ensure, so far as reasonably practicable, that the announcements and circulars of publicly listed companies are true and accurate. 131.The SEHK discharges its duty generally through promulgating (section 23, SFO) and enforcing the Listing Rules (Rule 2.01). Where circulars are concerned, it is specifically provided in Rule 13.52(1) that (a) before it is issued, a circular must be submitted to the SEHK for review, and (b) the circular shall not be issued until the SEHK has confirmed that it has no further comments on it. When a circular is allowed to go public, it does so only through being published on the SEHK website. 132.Similar provisions are in place as regards announcements.[103] Where there is a Very Substantial Acquisition, the rule at the time of the alleged offence was certainly that the relevant announcement must also be submitted to the SEHK for vetting. 133.This system of pre-vetting is, therefore, an important means by which the SEHK does its reasonable and practicable best to ensure that the market is “fair” and “informed”. Its efficacy depends on the full and frank disclosure of company directors, not least when there is probing from the SEHK, which is what took place in the present case. If company directors (e.g. the 1st appellant), whether or not in collusion with others (e.g. the 2nd and 3rd appellants), lie or insist on forming their own views on matters which, under the Listing Rules, the SEHK is the final arbiter, the SEHK will be impeded in performing its duty. 134.Put differently, if the defendant’s dishonesty in withholding information and submitting false information impeded the means by which the SEHK carried out its public duty, he dishonestly risked causing the SEHK to act contrary to that duty. The fact that there are separate sanctions for advancing such dishonest misinformation is irrelevant. 135.Admittedly, there is no mention of section 21 in Count 1 by name. But, as indicated, the pre‑vetting and determination of whether a circular or announcement should go public is an important part of the SEHK’s section 21 duty. We, therefore, agree with the respondent that the prosecution had identified with sufficient precision (a) the public duty that was imposed on the SEHK and (b) the way in which it was alleged that the SEHK had been defrauded in its performance of that duty. We are satisfied that the Mo Yuk Ping point, which pertains generally to the question of whether the common law offence of conspiracy offends the principle of legal certainty, does not arise. It is also apposite to mention that, as is conceded by Mr Winter, no further particulars had been sought on Count 1 by any party at trial. 136.It is not correct to say that William Wong’s evidence was to the effect that there was no duty on the SEHK to allow or prevent the publication of announcements and circulars. Rather, what he said was that the duty of ensuring the correctness of any published information rested with the company directors, not the SEHK.[104] Otherwise, his evidence is consistent with what has been said of the regulatory regime above. Mr Wong’s evidence is considered in more detail next. William Wong 137.By Ground 6 of the 2nd appellant’s grounds of appeal, complaint was made that William Wong was allowed to give “opinion evidence as to the meaning and interpretation of the Listing Rules” and “opinion evidence as to what the Listing Committee would do in hypothetical situations”. 138.William Wong, was the vice-president of the Listing Division of the Hong Kong Stock Exchange. The nub of his evidence was to the effect that, as a regulator, the Stock Exchange seeks to ensure that there is a fair and orderly market for the buying and selling of shares. This is in order to achieve two purposes. One is to maintain the quality of the Hong Kong securities market; the other is to protect potential investors and shareholders. Such protection is afforded through keeping the market transparent, so that investors and shareholders do not make ill‑informed investment decisions. To this end, the listed companies are obliged to comply with the Listing Rules which impose duties upon their directors, including various disclosure requirements. The Listing Rules are not law; neither is there any means by which the Stock Exchange can ascertain the truthfulness of the information thus provided. However, for “very substantial acquisitions”, no Announcement or Circular can be published on the Stock Exchange website until the Stock Exchange has finished vetting its content, and has no further comment. 139.This complaint has its provenance in an unsuccessful application made shortly before William Wong was called to give evidence at the trial. Having regard to William Wong’s witness statement and deposition, the defence sought to exclude parts of his prospective testimony on the ground that they amounted to inadmissible personal opinions. In his written submissions, on behalf of the 1st appellant at trial, Mr Fitzgerald addressed the prospective testimony of William Wong in the context of the Listing Rules.[105] That prospective testimony was directly relevant to many of the particulars in Count 1 and Count 2. Mr Fitzgerald submitted:[106]
140.Having received oral arguments from Mr Fitzgerald, the judge gave a brief oral ruling saying that she would give reasons for her ruling in due course. The judge said:[107]
141.Mr Winter contended before this Court that the objection then raised by defence counsel was well‑founded, and was one to which the judge should have acceded. Failing that, the judge had compounded her mistake by allowing William Wong to hypothesise on what step or decision, in a number of different situations, the SEHK might have taken had it been in possession of one kind of information or another. The result is that the jury was irreversibly prejudiced by Mr Wong’s interpretation of the Listing Rules, as evidenced by the normal practice of the SEHK; whereas, since it was a matter of law, the jury should have been directed by the judge as to the meaning of the Listing Rules. In short, the jury was misled into thinking that the two were the same. 142.As is apparent, Mr Winter’s contention was premised on the supposition that the prosecution case was based solely on a breach or breaches of the Listing Rules. If that supposition is correct, then the authorities do suggest that their interpretation is a matter of law which permits of no expert opinion [108]. It would, for example, be for the judge to rule whether the acquisition of UBAH was a “connected transaction”, determine the impact of her ruling on the charges and then direct the jury according to what may or may not be left of those charges as a result. There is no reason for suggesting that the basis and scope of the prosecution case was so limited. That calls into question the very foundation of the 2nd appellant’s Ground 6. 143.On 15 February 2016, the judge handed down her written Reasons for Ruling.[109] We are in general agreement with her reasoning. The judge said, inter‑alia:
144.In her summing up, the judge said of William Wong:[110]
145.Of the latter matter, the judge went on to say:[111]
Conclusion 146.We are satisfied that the judge was correct in her ruling in respect of the prospective evidence of William Wong, and that the evidence adduced was admissible. Were the Tab 11 accounts seen by ShineWing? 147.All of the appellants took issue with the adequacy of the judge’s directions in respect of the evidence as to whether Tab 11 prepared by Mark King, emailed to the 3rd appellant and copied to David Wiltshire on 15 June 2009, [112] had been shown to/seen by persons working for ShineWing, in particular the four witnesses who travelled to New Zealand to perform the “Agreed Upon Procedure”. They were in New Zealand in the period 7 to 27 June 2009. The 3rd appellant submitted that the judge had downplayed the effect of the evidence of two of those four witnesses, William Li and Doris Yiu, such that she became an advocate rather than a judge. 148.The importance of the issue lay in the fact that, although it was not stipulated as a particular of the dishonest means in the Particulars of Offence in Count 2, in her opening speech to the jury Ms Draycott said that it was the 3rd appellant’s job “to stop ShineWing finding out about the real accounts, and put himself between the accountants and ShineWing.” [113] There was no dispute that the case advanced to the jury by the prosecution was that the 3rd appellant had concealed from ShineWing the material encompassed in Tab 11. Although he received management accounts for 2009 from Mark King of Stretton’s on 15 June 2009, and although he was being pressed by ShineWing to provide management accounts for 2009, the 3rd appellant did not provide those accounts to them. Rather, he provided them with his own version of the accounts, first on 25 and next on 29 June 2009. The consolidated statement of financial performance for the 10 months ending 31 March 2009 prepared by Mark King provided to the 3rd appellant in the email of 15 June 2009 of the six companies constituting the CraFarms Group stipulated an overall deficit of NZ$5,420,975, whereas the statements of financial performance for that period for the same six companies provided by the 3rd appellant to ShineWing dated 25 June 2009 stipulated an overall surplus of more than NZ$10 million [114] while statements attached to the 3rd appellant’s emails of 29 June 2009 stipulated an increased overall surplus.[115] 149.In her summing up, the judge reminded the jury of the ambit of the material encompassed in Tab 11, namely that it contained:[116]
150.Of William Li’s evidence in respect of the accounts at Tab 11, the judge said:[117]
151.William Li was shown the Tab 11 accounts for the first time in his evidence in cross‑examination by counsel for the 3rd appellant. When it was suggested to him that he and Kevin Cheng had been shown those accounts by the 3rd appellant “between 15 to 17 June 2009 in New Zealand”, William Li said that he could not remember whether that had been done or not.[118] But, his attention having been drawn to the fact that there were asterisks in place of figures in the Plateau dairy cattle account, he said that he thought “we did ask about the asterisks part” and confirmed that he had done so in New Zealand.[119] In evidence on the following hearing day, the following exchange ensued between the witness and counsel in respect of the Tab 11 accounts:[120]
152.Subsequently, in re-examination, William Li addressed the question of when it was that he had seen the Tab 11 accounts in relation to 15 June 2009. He said that was:[121]
153.In relation to the date 15 June 2009, he said that it had been at least two weeks after that date, agreeing with the suggestion that meant “end of June… beginning of July”, adding that he thought that he had been given them only after “we chased him many times”, and only after he had been given the 3rd appellant’s “projections”.[122] 154.Having been shown the Statement of Financial Performance for each of the six farm companies, William Li acknowledged that each one of the statements reflected a deficit and agreed that the overall deficit was NZ$31.5 million. Although William Li said that he had prepared an Excel spreadsheet, which included figures for the six farm companies for the year ended 31 March 2009, he said that the spreadsheet did not contain any figures taken from Tab 11, explaining:[123]
155.The judge reminded the jury that it was William Li’s evidence that “he had got the soft copy of Tab 11.”[124] In cross‑examination, William Li said he could not remember if he had brought a hardcopy of Tab 11 back to Hong Kong on his return from New Zealand, but he had brought a soft copy of it back to Hong Kong.[125] 156.In that context, the judge reminded the jury that during his testimony Carl Kwok, who was one of the ShineWing witnesses who had travelled to New Zealand, said that he had checked the computer records of ShineWing and that “the earliest set of accounts on the ShineWing server was Eric’s accounts D3-88 dated 25 June 2009… He said no other 2009 accounts had been provided.” [126] Also, it was his evidence that he was the one who input the figures into the Excel spreadsheet, the first of which entries was on 25 June 2009. She said of his evidence “Carl believed he had not been shown the Tab 11 accounts when he was in New Zealand and he did not remember having been able to compare two sets of accounts for the same period but with different figures.” [127] 157.Of Kevin Cheng’s evidence of whether or not he had seen Tab 11, the judge reminded the jury:[128]
158.The judge reminded the jury that Barry Ip, the managing partner of ShineWing, gave similar evidence, namely that if his colleagues had Tab 11, they could have started working on them.[129] He testified that he had travelled to New Zealand, met his ShineWing colleagues and visited some of the farms, leaving Auckland to return to Hong Kong on 25 June 2009. Having been shown the Tab 11 accounts in evidence‑in‑chief, he said that he had not seen them.[130] He had not seen any results for 2009 in relation to the target assets whilst he was in New Zealand.[131] Contemporaneous emails from ShineWing “chasing” for the 2009 account 159.The judge’s reference to emails sent to the 3rd appellant, repeatedly chasing him for accounts, was clearly a reference to a series of emails sent to or copied to the 3rd appellant on 15, 19, 21 and 25 June 2009. 160.In an email sent to Kim Chan, but copied to the 3rd appellant, dated 15 June 2009, under the title “462‑draft circular”, Kevin Cheng complained:[132]
161.Then, in an email dated 19 June from Kevin Cheng to Kim Chan, again copied to the 3rd appellant, the former complained again:[133]
162.Next, in an email, dated 21 June 2009, to the 3rd appellant, copied to Doris Yiu and William Li, Kevin Cheng said:[134]
163.Finally, in an email, dated 25 June 2009, to the 3rd appellant but copied to his colleagues Barry Ip, William Li and Doris Yiu, Kevin Cheng said:[135]
164.In that context, in his evidence, Kevin Cheng said “So it turns out that for most part of the time in New Zealand we were waiting.” [136] When asked why he would be waiting if he had Tab 11 whilst in New Zealand, Kevin Cheng said “I believe we could use Tab 11 as our basis to commence work.” [137] Other contemporaneous emails to and from the 3rd appellant 165.Of relevance to the evidence that the Tab 11 accounts had been provided to the 3rd appellant by Mark King by an email on 15 June 2009, the judge reminded the jury of an email sent by the 2nd appellant to the 3rd appellant on 15 June 2009.[138] Having noted that the subject of the email was described as “your work and my instructions” and its importance as “High”, the judge said that it stated, inter‑alia:[139]
166.The judge noted that the email concluded:[140]
Observing that she had drawn their attention to part only of the email, she invited the jury to have regard to “its entirety and in context.” 167.It is to be noted that items 2 and 4 of the email stated respectively:
and
16 June 2009 168.In an email sent by the 3rd appellant to the 2nd appellant, dated 16 June 2009, the 3rd appellant had responded to the earlier letter of instructions from the 2nd appellant.[141] Attached to the email were the pdf files of the “Draft 10 months to 31st March 2009” in respect of five of the farm companies together with a pdf “CraFarms Group March 2009, which had been attached to the email from Mark King to the 3rd appellant dated 15 June 2009. In the text of his email, the 3rd appellant said:[142]
169.The judge reminded the jury that the 3rd appellant had sent another email dated 16 June 2009 to the 2nd appellant, copied to the 1st appellant.[143] The judge noted that attached to the email were:[144]
170.In fact, attached to the email were three documents stated to be “for 10 months ended 31st March 2009”. One of those documents was entitled “Consolidated Statement of Financial Performance (from Management Accounts).” [145] It was identical to a document attached to Tab 11 [146]. So that, for example, it stated the deficit for the 10 months ended 31st March 2009 to be $5,420,975. 171.In the email, the 3rd appellant stated:
172.It is to be noted that one of the attachments is described as “UBNZ March 2009. pdf ”. The deficit of $22,515,917 is the deficit described in the fourth document in the attachment, namely the “Consolidated Statement of Financial Performance (from Management Accounts) for 11 months ended 30th April 2009.” 18 June 2009 173.In an email from the 3rd appellant to the 2nd appellant, dated 18 June 2009, the 3rd appellant responded to an earlier email of that date from the 2nd appellant in which the request had been made “to copy me all your communications with Dave Wilshire (sic), Mark or those people relate to the transaction of UBNZ with China JINHUI as well?” The 3rd appellant stated in his email:[147]
Clearly, the statement in respect of Kevin Cheng that “HE HAS NOT SEEN those accounts” was a reference to the Tab 11 accounts. 21 June 2009 174.By an email, dated 21 June 2009, to the 2nd appellant the 3rd appellant attached schedules of revised figures for farm income for the “re: UBNZ Mar 2009 acc” from the overall loss of $5,594,706 stipulated by Mark King in the Tab 11 accounts.[148] In the text of his email he said:[149]
24 June 2009 175.The judge reminded the jury that in an email, dated 24 June 2009, to the 2nd appellant, copied to the 1st appellant, the 3rd appellant had written:[150]
176.The email was headed “re: March 2009”, and attached to it were statements of Financial Performance for the 10 months ended 31 March 2009 for four of the six farms.[151] In the text of the email, the 3rd appellant said:[152]
177.In reminding the jury of the evidence of Doris Yiu, the judge said:[153]
178.Mr Fitzgerald took repeated and strenuous objections to the description “suggestions”. He submitted that it was her “evidence” that she had seen the Tab11 accounts in New Zealand. It was in the judge’s use of that description that Mr Fitzgerald complained as being more the manner of an advocate than a judge. 179.Of Doris Yiu’s evidence in that respect, the judge went on to say:[154]
180.In her evidence in chief, Doris Yiu said that her position in ShineWing was as a staff accountant 2. In cross‑examination, she explained that Staff accountant 1 was the entry‑level and that Staff accountant 2 was the 2nd year.[155] She said that it was at a “very late stage”, at the end of the second week or the beginning of the third week of their trip to New Zealand, that they started work on the 2009 management accounts.[156] She said that, if her memory was correct, “then the revenue should be going up.” [157] [Italics added.] She explained that she meant that it did go up. 181.Having been shown the Tab 11 accounts, and her attention having been drawn to the Statement of Financial Performance of Windburn farm for the 10 months to 31 March 2009 in Tab 11, [158] she answered in the affirmative the double question “Did you ever see these accounts, or accounts in this format? ” Of the question “And you knew that all the farms were in deficit?”, she said “I have the impression that it was a deficit, but I did not know how much the deficit was.” [159] Then, after her attention had been drawn to the fact that, by contrast, the Statement of Financial Performance of Windburn farm for the same period, in the accounts emailed by the 3rd appellant to Kevin Cheng on 29 June 2009,[160] contained different figures for Milksolids Production income (a very significant increase) and different figures for four items of expense, namely working expenses, repairs and maintenance, vehicle expenses and overhead expenses (very significant decreases) and was now stated to be in surplus, Doris Yiu said that she did not have “much recollection” of comparing the two sets of accounts. Of whether or not she remembered a difference in two sets of accounts “for the same thing of that magnitude”, she said:[161]
182.Although, at first, Doris Yiu said that she believed that she had used a page in the Tab 11 set of accounts in relation to Windburn farm to perform her comparative analysis with previous years [162], and then qualified that by saying “but my recollection is quite vague now” [163], ultimately she said that she believed that she had used the relevant page in the accounts sent by email by the 3rd appellant on 29 June 2009.[164] 183.In that context,when asked if she was sure that she had seen “the accounts that are under Tab 11? the deficit accounts?”, Doris Yiu said:[165]
184.Of her analysis of the 2009 accounts, Doris Yiu said:[166]
Then, the following exchange ensued between Ms Draycott and Doris Yiu:[167]
185.Nevertheless, in cross-examination by Mr Khosa for the 3rd appellant, Doris Yiu confirmed the suggestion that there had been a discussion in the 3rd appellant’s home, in which William Li and Kevin Cheng had participated, about missing cattle as reflected in Tab 11, together with a discussion about the fact that asterisks had been inserted in place of figures in the dairy cattle account for Taharua.[168] Again, Doris Yiu agreed with the suggestion that the discussion with the 3rd appellant “went on over a few days, to‑ing and fro‑ing about the figures contained in this Tab 11.” She said that it was “normally” the case that all four of the ShineWing colleagues present in New Zealand discussed the accounts with the 3rd appellant in the latter’s living room.[169] She believed that a set of the Tab 11 accounts had been given to all four of them. Dairy cattle account 186.In her summing up, the judge said of Doris Yiu’s evidence:[170]
187.In fact, when confronted with the email to which the Tab 11 accounts were attached, Doris Yiu said at first “I don’t have any recollection of reading the email” [171], but later she said “I have never seen this email”.[172] 188.As noted earlier, in describing the ambit of the material supplied by Mark King to the 3rd appellant in his email of 15 June 2009, the judge identified five separate and different sets of accounts. The Statement of Financial Performance, which the judge described as the profit and loss statement, was distinct and different from the dairy cattle account. 189.Nevertheless, the judge went on to remind the jury of the submissions made by counsel for the 3rd appellant in his closing speech:[173]
190.Doris Yiu testified that one of the files she had prepared in New Zealand was an Excel spreadsheet, entitled ‘CraFarm queries’.[174] It had been created on 18 June 2009 and last saved on 30 June 2009. There, the ‘Statement of Financial Position’ for Taharua ‘As at 31 May 2008 & Mar 2009’ noted a decrease in ‘Livestock on Hand’ from about NZ$9 million to about NZ$6 million. She said that the management response to her query as to when it was that “Taharua sold all of the cows?”, namely “June 2008” had been provided by the 3rd appellant. In her notes to that statement she wrote:[175]
191.Doris Yiu said that in preparing her note she had relied on information prepared by the external accountants. She agreed with the suggestion that her note that Taharua had no dairy cattle related to the Dairy Cattle Account in Tab 11 [176], in which the tally of “Livestock On Hand” as at 31 March 2009 was blank.[177] Given the fact that the Excel spreadsheet had been opened on 18 June 2009, she believed that she had seen that document around that date. At that stage in her evidence, she said that she had no recollection of seeing the email from Mark King to the 3rd appellant, in which he was identified as an accountant at “Stretton’s Accountants”, to which Tab 11 was attached.[178] She did not recall from where she got the name Stretton’s. The name Stretton’s appeared only in the email and not in any of the other documents in Tab 11. She agreed with the suggestion that the value of the Livestock on Hand that she stipulated for Taharua in her Excel spreadsheet, as being $6,212,200 as at 31 March 2009,[179] had been extracted from the “Statement of Financial Performance” for Taharua,[180] provided by the 3rd appellant in his email to Kevin Cheng on 29 June 2009.[181] 192.At the end of the fourth day of her summing up, following specific requests by Mr Khosa,[182] the judge reminded the jury in more detail of the evidence of William Li and of Doris Yiu. Of William Li, the judge went on to direct the jury that:[183]
193.Of Doris Yiu, the judge went on to direct the jury that:[184]
As noted earlier, ultimately Doris Yiu said that she had used the relevant page in the accounts sent by email by the 3rd appellant on 29 June 2009 to make entries in the Excel spreadsheet. 194.In responding to Mr Khosa’s requests for additions to be made to the summing up, Ms Draycott reminded the judge that the evidence was that the Excel spreadsheet, D3-38, although created by Doris Yiu on 18 June 2009, had last been saved on 30 June 2009. However, the judge did not remind the jury of that evidence,[185] although Doris Yiu had testified to that effect.[186] 195.Finally, the judge also responded to a specific request made by Mr Fitzgerald at the end of the fourth day of her summing up for further directions to the jury in respect of any “conflict between the evidence of the prosecution witnesses in relation to Tab 11”, in particular that “if it continues to exist, (it) should be resolved in favour of the defence.” [187] 196.The judge went on to direct the jury:[188]
The 3rd appellant’s evidence as to the disclosure of the Tab 11 accounts to the ShineWing team 197.In reminding the jury of the 3rd appellant’s evidence as to whether or not the Tab 11 accounts were made available to the ShineWing team, the judge said:[189]
198.Of the 3rd appellant’s evidence of his subsequent contact with the 2nd appellant on that issue, the judge said:[190]
199.Earlier, the judge had directed the jury that, even if they rejected the evidence of the 3rd appellant, “the burden is still on the prosecution to make you sure on the evidence adduced that each accused is indeed guilty in respect of each charge. In other words, your rejection of the defence case or the defence evidence does not relieve the prosecution of the burden they have in proving their case against each accused.” [191] 200.The judge gave the jury the standard directions as to the approach to be taken to the evidence of witnesses:[192]
201.Given that the ShineWing witnesses were testifying about six and a half years after the events, which they described as having happened in June 2009, it was entirely appropriate that the judge should have directed the jury to have regard to the lapse of time and faded memories in considering ambiguities or inconsistencies in the evidence of those witnesses. Similarly, it was appropriate that the judge reminded the jury of the contemporaneous documentation as giving context to the oral testimony of those witnesses. 202.On the one hand, as the judge reminded the jury, there was a series of emails from Kevin Cheng to, or copied to, the 3rd appellant on and between 16 and 25 June 2009, in which he repeatedly complained that he had not been provided with the management accounts for the 10 months ended 31 March 2009. That of course begged the question: if the ShineWing team had been provided with Tab 11, why was Kevin Cheng complaining? 203.Also, as the judge reminded the jury, there was a series of emails between the 2nd and 3rd appellant’s which dealt with the release of accounts. First, the 3rd appellant had been instructed by the 2nd appellant to get her written confirmation before “release (of) any financials’ information (even the drafts) to anybody.” Then, in compliance with those instructions, the 3rd appellant had provided the 2nd appellant with pdf files in respect of the CraFarms Group and five of the farms for the 10 months to 31 March 2009, acknowledging that “the 01 April 2008 - 31 Mar 09 accounts (all 5 companies) requires your consent to release them.” Next, in an email dated 18 June 2009, the 3rd appellant told the 2nd appellant that Kevin Cheng had not seen those accounts. Finally, in an email dated 24 June 2009, having provided the 2nd appellant with his version of those accounts, the 3rd appellant urged the 2nd appellant “Please read fast and confirm the release of the 2009 Mar accounts to Kevin as they are now in total halt on the works progress.” Conclusion 204.We are satisfied that the allegations that were made in respect of the judge’s summing up in relation to William Li and Doris Yiu, namely that it was an unfair, and even a biased, misrepresentation of their evidence is wholly unfounded. There were inconsistencies in their evidence and they vacillated as to what, if any, use had been made of Tab 11. The judge was perfectly entitled to point out that DorisYiu’s testimony, that it was her “vivid impression” that for the 2009 accounts the revenue was going up, was they might think, “not quite” what the Tab 11 figures showed. The judge redirected the jury in respect of their testimony when requested to do so. 205.In any event, the judge had made it clear repeatedly that it was for the jury to determine what they made of the evidence. She said:[193]
206.Given that the judge directed the jury that if “you are not sure that the Tab 11 March accounts of the CraFarms Group were hidden from the ShineWing witnesses, in other words, you are not sure that the Tab 11 accounts were not given to them,” and that they must give the benefit of the doubt to the defendants, it is clear that in convicting the appellants the jury was satisfied that those accounts were concealed from them. The resolution of that issue was very much a matter for the jury, having regard to all the evidence. 207.We are satisfied that there is no merit in this ground of appeal. Were the figures in the accounts that the 3rd appellant provided to ShineWing of the profit and loss of the 22 farms assumed or projected accounts or were they accounts that he had deliberately, falsely inflated? Did the 3rd appellant know that those accounts would be used in Appendix II of the Circular? Appendix II of the Circular 208.In Appendix II of the Circular, published by 462 on 8 September 2009, under the rubric “FINANCIAL INFORMATION OF THE TARGET GROUP”, it was asserted, inter‑alia, that gross profit in the “Unaudited Combined Profit and Loss Statements Attributable to the Target Assets” for the years ended 31 May 2007, 2008 and 2009 was $17,889,000, $55,040,000, $92,520,000 respectively. 209.Of the various figures, namely revenue, cost of sales, gross profit, other income gains (losses) and net income, in respect of those years, it was asserted that they “…have been prepared based on the financial and other information provided by the management of the vendor.” Of ShineWing’s role as reporting accountants, it was said that they had “performed limited procedures” of enquiry and review. Finally, it was asserted that:[194]
210.In the notes to Appendix II, it was stated:[195]
211.Under the rubric “MANAGEMENT DISCUSSION AND ANALYSIS”, the “financial information of the target assets” for each of the three years was addressed. Of the reasons for the “slight decrease” in revenue for the year ended 31 May 2009, it was asserted:[196]
212.Of gross profit for the year ended 31 May 2009, it was asserted:[197]
The prosecution case 213.It was the prosecution case that, in pursuance of the conspiratorial agreement with the 1st and 2nd appellants, the 3rd appellant addressed the fact that figures provided by Mark King to the 3rd appellant on 15 June 2009 [198] stipulated overall losses for the 22 farms by deliberately and falsely inflating the figures to stipulate a profit in place of losses. Further, that the 3rd appellant knew that the figures he provided to ShineWing would be used in the 462 circular. The 3rd appellant’s case 214.It was the 3rd appellant’s case that, on the contrary, the figures he provided to ShineWing were projections based on how the Target Assets would perform under new ownership and that was known to ShineWing. Also, that the figures which appeared in the circular had been provided by ShineWing and not by the 3rd appellant. He did not know how those figures were calculated. No case to answer 215.In a submission of no case to answer on behalf of the 3rd appellant, Mr Khosa, relied inter‑alia on the alleged insufficiency of evidence to establish against the 3rd appellant the matters raised in the two questions posed at the outset.[199] In a ruling, in which she provided no reasons, the judge ruled against that application.[200] Assumed or false accounts? 216.In her summing up, the judge directed the jury in respect of particulars (d) and (e) of the Particulars of Offence that “the core issue is whether Eric was or was not playing with the figures and merely using the projected 2009 UBAH accounts as a pretext, or as an excuse, to provide such false figures to defraud 462 and the stock exchange”.[201] Of their approach to that issue, the judge directed the jury:[202]
The judge went on to say that, in those circumstances:[203]
217.In her review of the evidence in her summing up relevant to the issue, the judge said that it had been the evidence of both William Wong and Cindy Ngai of the SEHK that it was a requirement of the SEHK that the figures in Appendix II of the circular stating the profit and loss of the revenue generating assets for the previous three years to be acquired by 462 should be the historical and actual figures, reflecting the actual performance. If the SEHK had known that they were based on assumptions, they would not have allowed the circular to be published.[204] 218.Of the evidence of the ShineWing employees, the judge reminded the jury that Doris Yiu had testified, of the accounts provided by the 3rd appellant by his email dated 29 June 2009, that she understood that they were “actual figures and were extracted by Eric from the external accountants’ management accounts”, adding that she “could not say for sure whether they were projected figures”.[205] On the other hand, the judge said that William Li testified of the accounts provided by the 3rd appellant that “Eric told him that those were projections assuming the assets had been injected into UBAH”.[206] 219.Of Kevin Cheng’s evidence, the judge said “For the 2009 figures Kevin told you that those were historical figures but adjustments might have been made to take account of the deferred Fonterra payments and the change in the fair value of the cattle.” [207] The judge went on to say “As to the suggestion that appendix 2 could present figures assuming that the target assets were run by UBAH in a different mode, Kevin said that was not his understanding.” [208] The judge suggested, although she said that it was entirely a matter for the jury, that the effect of his evidence was that he understood that “…appendix 2 could only include historical figures.” [209] 220.In that context, the judge reminded the jury of an email, dated 11 June 2009, sent by the 2nd appellant to Kevin Cheng, but copied to the 3rd appellant in which the 2nd appellant asserted “I understood the Pro Forma is to Assume the businesses of those related Assets were trade under UBNZ AH in the past, and if it is ASSUME, then the previous financials are not relevant.” [210] Of Kevin Cheng’s evidence, the judge said:[211]
221.The judge reminded the jury of an email, dated 2 July 2009, sent to Barry Ip by the 2nd appellant, but copied to the 3rd appellant and Kevin Cheng in which it was asserted:[212]
222.The judge said that Barry Ip had explained his response by email “Noted, maybe we need to state the note in the circular to state the fact as mentioned by you” by saying, in effect that, “it could not be the case that the accounts from June 2008 to May 2009 were based on assumptions.” [213] The judge went on to remind the jury that the effect of Barry Ip’s evidence was:[214]
223.Of Andy Wong’s evidence, the judge said:[215]
224.Of Andy Wong’s subsequent testimony, the judge said:[216]
225.Attached to an email dated 10 August 2009 sent by Andy Wong to, the 2nd appellant, but also copied to Barry Ip, was the revised Appendix II of the 462 Circular which included figures up to 31 May 2009. Of those figures, Andy Wong posed two questions:[217]
226.In an email, dated 11 August 2009, sent by the 3rd appellant to the 2nd appellant, but copied to Andy Wong, it was asserted:[218]
227.In an email, dated 11 August 2009, sent by Andy Wong to the 2nd and 3rd appellants, but copied inter‑alia to Barry Ip, Andy Wong replied:[219]
228.Of Andy Wong’s evidence in respect of those emails, the judge reminded the jury that:[220]
229.On the other hand, the judge said of Barry Ip’s evidence that “…he did not interpret it as Eric telling ShineWing that assumptions were made for the 2009 figures but just that those were the relevant explanations for the 2009 accounts.” [221] Of Barry Ip’s subsequent testimony, the judge noted:[222]
230.Of Andy Wong’s vacillation in his testimony in respect of the issue of an “adjustment” in respect of the number of cattle on the farms, the judge reminded the jury that initially he testified that it was “not unreasonable to factor in more cattle than that actually owned by the CraFarms Group”. However, subsequently he had said that the “projection of 8,000 additional cattle in the appendix 2 figures” was “unreasonable”.[223] 231.Of the conflict in the testimony between the ShineWing witnesses, the judge said:[224]
232.Of the resolution of that issue, the judge said to the jury:[225]
233.In the result, the judge suggested to the jury:[226]
Did the 3rd appellant know that the figures in the accounts that he provided to ShineWing would be used in the circular? 234.Of the issue of whether or not the 3rd appellant knew that the figures in the accounts he provided to ShineWing in respect of the 22 farms would be used in the 462 circular, the judge reminded the jury of the evidence of Kevin Cheng:[227]
235.On the other hand, the judge reminded the jury that it was the 3rd appellant’s evidence:[228]
236.In his evidence, Kevin Cheng had testified in respect of the various figures the 3rd appellant had provided to ShineWing in the accounts that “from the beginning we all understood that these figures would be put into the circular of 462, finally”. Of those encompassed by that description, he explained he meant “All people in this project.” Clearly, that included the 3rd appellant.[229] Evidence of the 3rd appellant’s involvement in ShineWing’s preparation of Appendix 2 of the circular 237.In his evidence-in-chief and in cross‑examination, Kevin Cheng testified in respect of emails sent to or from, or copied to, the 3rd appellant in the period 10 to 21 August 2009. 238.By an email, dated 10 August 2009, copied to the 2nd appellant, the 3rd appellant sent Kevin Cheng the management accounts for the six farms for the year ended 31 May 2009.[230] By an email of the same date, Andy Wong sent an email to K & L Gates, copied among others to the 2nd appellant and Barry Ip, attaching the “Revised Appendix II in Circular”, of which it was stated:
239.The attachment tracked the changes made to the document in respect of the Profit and Loss Statements. As noted earlier, the email directed two questions to the 2nd appellant, first as to why the gross profit of 2009 was over 50%, which was significantly higher than 2007 and 2008; and, secondly, why the turnover was only slightly higher for the whole year when compared with the 10 months to 31 March 2009. 240.Then, in an email dated 11 August 2009 from the 3rd appellant to Andy Wong, copied to the 2nd appellant, the 3rd appellant provided the detailed replies to the two questions previously set out.[232] As noted earlier, by email of the same date, to the 2nd and 3rd appellants, Andy Wong indicated that the answer to question 1 “…is fine for me.” 241.Of the statement in the email by the 3rd appellant “as discuss”, Kevin Cheng said that he could not remember if the matter had been discussed, but he said that “the figures in appendix 2 were provided by Eric. But I must confess that the contents in appendix 2 was not prepared by Eric.” [233] 242.By an email, dated 12 August 2009, under the heading “re: Question 1 – details” the 3rd appellant replied to Kevin Cheng’s request in the previous email for “detailed and specific reasons.” In doing so, the 3rd appellant addressed in detail “2009 production efficiency”.[234] 243.Kevin Cheng said that he believed that on 19 August 2009 he had forwarded to the 3rd appellant an email sent earlier on 14 August 2009, among others to Andy Wong and the 2nd appellant by K & L Gates, but which had been copied to him.[235] Kevin Cheng’s email to the 3rd appellant stated that the subject was “Queries from HKSE” in respect of the “VSA circular _s4-further comments from SEHK: 13 August 2009”. [236] One of the matters identified in the fax of the SEHK to K & L Gates, dated 13 August 2009, was:
244.In an email to the 3rd appellant, dated 20 August 2009, Andy Wong attached pages of the draft Circular in relation to Financial Information in Appendix II.[237] The gross profit for the year ended 31 May 2009 was stated to be $92,520,000. The 3rd appellant was asked to prepare a discussion and analysis addressing five key questions:
245.In an email, dated 21 August 2009, sent by Andy Wong to the 3rd appellant, Andy Wong complained “As of now I got nothing relating to the outstanding MD & A.” [238] 246.An email from the 2nd appellant, dated 21 August 2009, to May Chan copied to Andy Wong addressed the subject “Circular‑ Fin Info App II-20 August 2009. pdf”. The 2nd appellant stated “please find the enclosed the draft from Eric. Let me know if they are sufficient enough for you to complete.” Attached was the marked up, tracked records of changes to an earlier draft of that part of Appendix 2 of the circular. It addressed the five topics enumerated by Andy Wong in his email of 20 August 2009. Of the “reasons for the increased of GP% from 2007 to 2008 and then to 2009”, it asserted:[239]
247.As is readily apparent, that paragraph resonates strikingly with the paragraph that addressed those issues and which appeared in the circular, albeit that there were some changes of grammar and syntax. 248.Finally, in an email, dated 21 August 2009, sent by Andy Wong to the 2nd appellant and May Chan, but copied among others to the 3rd appellant and Kevin Cheng, Andy Wong stated:[240]
249.In her summing up, the judge gave the jury directions in respect of their approach to the assertion in the email from May Wang, copied to Andy Wong, that what she attached to the email was “the draft from Eric”:[241]
250.The judge went on to direct the jury:[242]
251.Subsequently, in the context of her review of the emails passing between the 3rd appellant and others in respect of Appendix II of the circular, the judge repeated those directions.[243] Of the prosecution case in that regard, the judge said:[244]
Conclusion: no case to answer 252.We are satisfied from the evidence described above that the complaints made on behalf of the 3rd appellant that the judge erred in ruling a case to answer, having regard to the evidence led in the prosecution case in respect of the basis on which he provided accounts to ShineWing and his knowledge of their use in the circular, is without merit. 253.The resolution of the conflicts or inconsistencies in the testimony of the ShineWing witnesses, in particular that of Andy Wong in contrast to the other witnesses from ShineWing, was a classic matter for the jury to resolve. 254.On the other hand, there was compelling evidence, in particular from his participation in the creation of the MD & A part of Appendix II of the circular, that the 3rd appellant knew of the use that was being made of the figures that he had provided in the accounts of the farms to ShineWing. Unbalanced summing up/failure to remind the jury of evidence relevant to the 3rd appellant’s case in respect of assumed accounts 255.In her review of the 3rd appellant’s testimony at trial, the judge reminded the jury that he had said that in his initial meeting with the 2nd appellant on 5 June 2009 he had “agreed to take up the job to do up the projected accounts of direct income and direct expenses” for the purpose of seeking loans.[245] 256.Then, the judge adverted to the communication between the 2nd appellant and ShineWing, in which she had asserted that the “previous financials” were not relevant. In doing so, the judge reminded the jury that they had looked at the email, dated 11 June 2009 [246], sent by the 2nd appellant to Kevin Cheng in which that assertion by the 2nd appellant was printed in red in the body of the email.[247] There, the judge had reminded the jury that in that email, the 2nd appellant had asserted that “the previous financials are not relevant” and that “all the accounts are assumed if they were in UBNZAH.” 257.Of the 3rd appellant’s evidence, in that regard the judge said:[248]
258.In the context of the email, dated 15 June 2009, sent by the 2nd appellant to the 3rd appellant, in which she gave him instructions requiring written instructions from her before he released “any financials’ information (even the drafts) to anybody”, the judge reminded the jury of the 3rd appellant’s evidence. The email instructed the 3rd appellant to revert to the 2nd appellant in the morning with the following:
259.Of the fact that reference was made to “your draft accounts”, rather than “projected accounts”, the judge said:[249]
260.The judge went on to remind the jury of the 3rd appellant’s evidence, namely:[250]
261.Of the 3rd appellant’s testimony of how it was that he approached the task of making projected accounts, the judge said:[251]
262.Also, the judge said that the 3rd appellant testified that “at the time he was working with William and Doris to work up the projected UBAH accounts and the Kevin team knew what he was doing.” [252] 263.Of the 3rd appellant’s testimony as to the basis of his “adjustments or projections”, the judge said that they were:[253]
264.Of the 3rd appellant’s testimony of his limited role in the preparation of the MD & A in appendix II of the circular the judge said, in respect of the draft at Tab 97 B, that he said that he had copied information from the Internet as to the Fonterra revenue, but:[254]
266.At the conclusion of the summing up, the judge summarised the case of the 3rd appellant:[256]
Conclusion 267.We are satisfied that the judge summed up the evidence fairly and in a balanced manner in relation to the 3rd appellant’s case in respect of assumed accounts. There is no merit in this ground of appeal. The 2nd appellant’s knowledge of and involvement in the conspiracy to falsify the accounts 268.Earlier in this judgment we said that the evidence of the 2nd appellant’s knowledge of and involvement in the conspiracy to falsify the accounts was overwhelming. Here, we explain why. 269.There was no dispute that, following the agreement dated 22 May 2009 between 462, UTCL and UBFM [257] for the acquisition by the former of the farm properties, it fell to 462 to conduct the due diligence exercise, but that it did so on information provided by the vendor. Of Katherine Chan’s evidence, the judge reminded the jury:[258]
270.Email correspondence subsequent to the 22 May 2009 agreement evidenced the role of the 2nd appellant from the outset of the due diligence exercise. In an email, dated 29 May 2009, from K & L Gates [259] to Kerry Knight on the subject of “Due Diligence” it was asserted that “We will need to coordinate with May on the due diligence.” [260] In an email of the same date to the 2nd appellant from Kevin Cheng, on the issue of due diligence, the latter said: “As we have not received any of our required financial information, we will postpone the field audit until further notice.” [261] On 30 May 2009, the 2nd appellant informed Kevin Cheng that she had just received the accounts for 2006, 2007 and 2008.[262] On 31 May 2009, the 2nd appellant forwarded by email the 2006 – 2008 accounts to Kathy Chan and Barry Ip, as well as to many others members of staff of ShineWing: “Here are the 3 years unaudited management accounts which our company has instructed NZ local accountant firm to complete based on the books that farms provided.” [263] 271.By an email dated 1 June 2009, Kevin Cheng informed the 2nd appellant,[264] “Please find the attachment for our required financial information in order to kick‑off the audit work. A similar list should have been passed to you during our meeting a few weeks ago. We hope that the required information will be substantially available prior to our departure to NZ.” Included in the required information in respect of “The Target Group” was:
272.By an email dated 2 June 2009, from the 2nd appellant to Kevin Cheng, the former said, “I will come back to you with the comments from our side”, pointing out that the “target” was not the CraFarms Group business, but the six farms listed in the accounts.[265] By an email dated 3 June 2009, from Kevin Cheng to the 2nd appellant, the latter was advised:[266]–
273.The attached “List for required documents for the due diligence” stipulated, inter‑alia:
274.Although ShineWing acknowledged clearly that the deal was an “asset deal”, namely the acquisition of the farms and cattle, not the CraFarms Group with its debts and liabilities, nevertheless ShineWing made it crystal clear to the 2nd appellant from the list of required information sought from the 2nd appellant that it required historical figures of the component parts of the profit and loss statements, not only for three annual periods but also for the 10 months period up to 31 March 2009. In the event, no doubt because of the delay until 8 September 2009 in issuing the circular, the combined profit and loss statements included in the circular were in respect of the three years ended 31 May 2007, 2008 and 2009. That accorded with the annual tax year in New Zealand [267]. 275.The rigorous approach necessitating the inclusion of historical figures in the financial statements clearly did not appeal to the 2nd appellant. That much is made obvious by two exchanges of emails on the subject. The first exchange of emails between the 2nd appellant and Barry Ip, but copied to others including the 1st appellant and multiple parties at ShineWing, was made under the subject heading, “financial Due diligence”. Reference has been made to these emails earlier. They were referred to as Exhibit D3-6 during the trial.[268] 276.By an email dated 11 June 2009 to Barry Ip, copied to the 1st appellant, the 2nd appellant sought an appointment with Barry Ip to discuss questions raised by Kevin Cheng and his team. She said that she hoped that this would allow their staff to “coordinate better”.[269] In an email of the same date to the 2nd appellant, copied to the 1st appellant, Kevin Cheng asked:[270]
277.In an email of the same date, the 2nd appellant responded to Kevin Cheng’s enquiries directly to Barry Ip, copied to the 1st appellant, inter-alia : [271]
278.Subsequently, on 2 July 2009, there was a second and more telling exchange of emails between Barry Ip, Katherine Chan and the 2nd appellant.[272] Significantly, it took place after 15 June 2009, on which date Mark King had provided the 3rd appellant with the Tab 11 accounts, including the consolidated figures for ten months ended 31 March 2009.[273] They showed deficits for that period for five out of the six farm companies, which were the target of the acquisition and an overall deficit of $5,420,975. 279.In his email dated 2 July 2009 to Katherine Chan, Barry Ip said: [274]
280.The email having been forwarded to the 2nd appellant that same day, she responded directly to Barry Ip:[275]
281.In an email of the same date in reply, Barry Ip said:[276]
282.For present purposes, what the 2nd appellant said in the abovementioned emails is, in our judgment, clearly indicative of an intention to forestall the publication of the Tab 11 accounts. Her sole emphasis on UBAH to the exclusion of the farms as “target” was inconsistent with what ShineWing regarded as accepted practice. 283.Next, we examine the working relationship between the 2nd and 3rd appellants. As noted earlier, it was the 3rd appellant’s evidence, but not accepted by the prosecution, that he first became involved in discussions with the 2nd appellant in respect of the acquisition on 5 June 2009. He understood that he was to assist ShineWing in a due diligence exercise arising out of an acquisition of farm properties and cattle in which the 2nd appellant was a vendor and 462 the purchaser.[277] 284.By an email dated 6 June 2009, the 3rd appellant sent the 2nd appellant a signed copy of a “confidentiality agreement” the purpose of which was to assure the 2nd appellant that he would not disclose to any person or corporation [278] –
285.The 2nd appellant’s very considerable concern to keep such information confidential was evidenced by the email, headed “your work and my instruction”, she sent to the 3rd appellant on 15 June 2009.[279] It characterised the level of importance of the issue as: “High”. In order to demonstrate the 2nd appellant’s virtual obsession to minimize and restrict the 3rd appellant’s communication with Kevin Cheng and his team of colleagues from ShineWing, it is necessary to set out the larger part of this email:
286.It is to be noted from item 2 of the email, that the 2nd appellant appeared to draw a distinction between the 2006 – 2008 figures and the figures for 2009 and beyond. The email concluded with the following instruction:
287.It appears that the email may have been prompted by what the 2nd appellant said towards the end of the email, namely that “I have some feedback from HK side which they are certain information have been discussed without my acknowledgement”. The 2nd appellant reminded the 3rd appellant:
288.For his part, the 3rd appellant testified that the 2nd appellant’s long list of instructions had been received on the night of 15 June 2009 [280]. It had been preceded by the Tab 11 accounts, which arrived by email from Mark King the same morning [281]. 289.In response to the 2nd appellant’s criticisms, by an email to the 2nd appellant dated 16 June 2009, the 3rd appellant sought to make “clarifications” [282]. He denied leaking any information. He also hinted at the pressure that the ShineWing team was giving him. It was their testimony that they had been pressing the 3rd appellant for the 2009 figures [283]. Attached to the email were the Tab 11 accounts provided to the 3rd appellant by Mark King. Of those accounts, the 3rd appellant said in the email:
290.In an email the 3rd appellant sent to the 2nd appellant, copied to the 1st appellant, two hours later on 16 June 2009, the 3rd appellant said:[284]
291.In the afternoon of 16 June 2009, the 3rd appellant sent a third email to 2nd appellant, again copied to 1st appellant [285]. It would appear that he had started compiling his own figures as per the email’s attachment:
292.On the following day, 17 June 2009, the 3rd appellant sent Mark King an email saying [286]:
293.By an email dated 18 June 2009, the 3rd appellant informed the 2nd appellant:[287]
294.By an email dated 19 June 2009, in which the subject was described as ‘RE: 462-draft circular’, Kevin Cheng complained to Kim Chan, the Company Secretary of 462, copied to the 1st, 2nd and 3rd appellants:[288]
295.On 21 June 2009, Kevin Cheng emailed the 3rd appellant and threatened to withdraw from the exercise:[289]
296.In an email of the same date, the 3rd appellant informed the 2nd appellant [290]:
297.The reference to “The existing Mark Loss (5,594,706) was clearly a reference to the figure of a deficit of all six farms of $5,594,706 described in the “Consolidated Statement of Financial Performance (from Management Accounts) in the Tab 11 accounts.[291] Attached to the email was a document [292] which contained what was described as a “Revised” calculation of the SURPLUS/(DEFICIT) for two of the farms, namely Taharua and Ferry View, alongside figures which matched those for those two farm companies stipulated in the Tab 11 accounts.[293] The revision stipulated a surplus of $1,132,705 for Taharua, in place of a loss of $467,7535, and a reduced loss in respect of Ferry View. 298.By two emails dated 24 June 2009 to the 2nd appellant, copied to the 1st appellant, the 3rd appellant attached new versions of the “Statement of Financial Performance for the 10 months ended 31 March 2009” for all six farm companies. In the first of these emails, to which he attached statements for Plateau, Hillside, Taharua and Ferry View farms, the 3rd appellant wrote [294]:
The surplus for Taharua was now stated to be $3,031,587 and the deficit stated for Ferry View was reduced still further. 299.Attached to the second email were statements in respect of Nugen and Windburn farms. The 3rd appellant wrote:[295]
No doubt, the 3rd appellant thought that he had now achieved the objective of presenting a sound state of affairs. 300.However, once again demonstrating her active and knowing participation in the 3rd appellant’s activity, the 2nd appellant replied to the 3rd appellant’s emails by an email dated 25 June 2009 and asked:[296]
301.It is to be noted that of the statements in respect of the six farm companies sent by the 3rd appellant to the 2nd appellant in his emails of 24 June 2009, Ferry View was the only farm still in deficit. That was to be contrasted with the Tab 11 accounts received by both the 2nd and 3rd appellants less than 10 days earlier, in which five of the six farm companies were in deficit and the overall deficit was $5,420,975. Now, the accounts compiled by the 3rd appellant presented an overall surplus of $14,875,785. 302.To the 2nd appellant’s query, the 3rd appellant responded by an email dated 26 June 2009, copied to the 1st appellant, with a message fittingly captioned, “small Good New BIG Bad New to solve mar 2009” in which the 3rd appellant wrote:[297]
303.However, as the 3rd appellant went on to note, he had now received what he described as “the FULL accounts” from Mark King and they revealed a serious past error; a loss of more than NZ$8 million which had been wrongly reported as a surplus of that amount:
304.The 2nd appellant’s continued involvement in the 3rd appellant’s manipulation of the accounts is evidenced by continued email communication between them up to and beyond 29 June 2009 when the 3rd appellant sent Kevin Cheng the 2009 accounts up to 31 March 2009.[298] In an email dated 27 June 2009 from the 3rd appellant to the 2nd appellant, copied to the 1st appellant, the issue of the fair value to be attributed to cattle on the farms and the effect on the previous year’s accounts was addressed by the 3rd appellant:[299]
305.In conclusion, the 3rd appellant said:
306.In emails dated 28 June 2009 the 3rd appellant sent the 2nd appellant revised copies of the Statement of Financial Performance for the 10 months ended 31 March 2009 for four of the six farms.[300] In the case of the Plateau farm two different statements were sent, in one of which the net surplus was stipulated to be $2,848,861[301] and in the other $5,488,569.[302] 307.In emails dated 29 June 2009, the 3rd appellant sent the 2nd appellant copies of the statement of financial performance for all six farms for the same period. In the first of the emails, to which was attached statement in respect of four of the farms the 3rd appellant said:[303]
It is to be noted that the statement in respect of the Plateau farm now stipulated a net surplus of $6,608,504.[304] 308.In emails, also dated 29 June 2009, the 3rd appellant sent Kevin Cheng the accounts of the six farms for the 10 months ended 31 March 2009, including the Statement of Financial Performance.[305] The net surplus for each of the farms stipulated in the latter documents, in the case of the Plateau farm the second of the two statements, was identical to the surpluses stipulated in the statements sent to the 2nd appellant earlier that day. The overall surplus of the six farm companies presented in those accounts was $14,055,884. That contrasted with the overall deficit of those companies $5,420,975 stipulated by Mark King on 15 June 2009, which he acknowledged within 10 days to be undercalculated by an additional deficit of $8,094,731. In a period of two weeks the 3rd appellant had manipulated the accounts so that the overall deficit of the six farms of over $13.5 million was now presented as a surplus of more than $14 million. 309.Kevin Cheng responded to the 3rd appellant’s emails attaching the accounts of the six farm companies in an email dated 29 June 2009, copied to various colleagues of his at ShineWing including Barry Ip, saying:[306]
310.By an email dated 30 June 2009, the 3rd appellant forwarded Kevin Cheng’s email to May Wang. For his part, as promised, Kevin Cheng sent an email on the same date to the 3rd appellant attaching the question list.[307] In the text of the message, Kevin Cheng said of ShineWing’s queries that they were “mainly on the 2009 accounts”. The very first of the questions raised went to the obvious nub of the issue:
311.Kevin Cheng’s concerns about the 2009 accounts was obviously what triggered Barry Ip’s email to Katherine Chan, dated 2 July 2009, in which he had asserted to Katherine Chan that the 2nd appellant had instructed the 3rd appellant “to adopt a different accounting treatment in preparing the management accounts for the period ended 31 March 2009”, of which approach he said that it was “so aggressive, there is obvious difference from the face of the accounts.” 312.By an email dated 3 July 2009, under the heading “UBNZ 2010 full forecast”, the 3rd appellant sent the 2nd appellant, copied to the 1st appellant, a forecast for production and income for the six farms for the period up until 31 May 2010.[308] In the text, the 3rd appellant wrote:
313.Subsequent emails dated 7 July 2009 from the 3rd appellant to the 2nd appellant attached copies of yet further revised versions of the Statement of Financial Performance for the 10 months ended 31 March 2009 for the six farms.[309] The 3rd appellant advised the 2nd appellant that “The 31 Mar 2009 Net profit is $17,789,715.” [310] 314.The issue of the sharp increase in the overall Gross Profit for the 10 months period up to 31 March 2009 was taken up directly with the 2nd appellant in an email sent by Andy Wong to her on 9 July 2009 in the context of its relevance to the prospective publication of the circular:[311]
315.The 2nd appellant was requested to ask the 3rd appellant to help in speeding up clearing that and other issues. 316.By an email dated 4 August 2009, the 3rd appellant sent the 2nd appellant the “revise 31 May 2009 accounts” for the six farm companies.[312] By an email dated 6 August 2009 the 2nd appellant sent that material to Katherine Chan, Barry Ip and the 1st appellant saying “should you have any questions please feel free to contact me or Eric direct.” [313] In an email dated 6 August 2009, from Kevin Cheng to the 3rd appellant, but copied to the 1st and 2nd appellants, Kevin Cheng raised “queries in relation to the income statements of the Target Assets for the year ended 31 March 2009.” [314] He asked, inter-alia:
317.In an email dated 10 August 2009, under the heading “Revised Appendix II in Circular”, sent by Andy Wong to various parties, but including the 2nd appellant, a copy of the revised circular updated to 31 May 2009 was attached and the 2nd appellant asked:[315]
318.In the result, in an email dated 11 August 2009 to Andy Wong and Kevin Cheng, copied to the 2nd appellant, the 3rd appellant replied to the queries that had been raised. In short, he asserted:[316]
319.Of the second question raised, the 3rd appellant asserted, inter‑alia:
320.In an email, dated 11 August 2009, Andy Wong replied to the 2nd and 3rd appellants:[317]
Conclusion 321.Insofar as the 3rd appellant had spoken to any of the contemporaneous correspondence in his evidence, it was a matter for the jury to make what they would of it. However, on the face of this correspondence itself clearly collusion existed between the 2nd appellant and the 3rd appellant to falsify the 2009 accounts as was considered necessary. The 3rd appellant himself admitted as much in his examination-in‑chief [318]:
Unfair summing up: failure to remind the jury of the 2nd appellant’s reliance on statements in emails that the accounts were “assumed” 322.Complaint was made on behalf of the 2nd appellant that in her summing up the judge had failed to remind the jury of the reliance placed by the 2nd appellant on the statements that she had made in the emails of 11 June and 2 July 2008 respectively namely, “I understood the Pro Forma is to Assume the businesses of those related assets were trade under UBNZ AH in the past, and if it is to ASSUME, then the previous financials are not relevant” and“All the accounts are assumed if they were in UBNZAHL” respectively. As noted earlier, having adverted to those two emails and having read to the jury the passages cited above, the judge reminded the jury of the evidence of the various witnesses relevant to those assertions of the 2nd appellant.[319] Of course, the 2nd appellant not having given evidence, there was no evidence in her case to amplify or explain the bare assertions made in the emails. The judge directed the jury:[320] “How you are going to assess the evidence of the ShineWing witnesses is a matter for you.” 323.At the outset of her summing up, having told the jury that it was the defence case that “…the figures now appearing at appendix 2 of the circular were never meant to be actual accounting figures of the Crafar group, or of the Crafar assets, but just projected figures based on the injection of those assets into UBAH based on certain assumptions” the judge said:[321]
324.At the conclusion of the third day of her summing up, but before the judge had given a concluding summary of the defence cases, objection was taken by Mr Harris on behalf of the 2nd appellant that “…important points favouring the 2nd accused have been omitted, in other words not addressed by ladyship, or presented in a way that we suggest might be thought to be unbalanced or unfair.” In particular, the judge was asked to note that:[322]
325.In his closing speech, Mr Harris had referred to the two sets of emails, exhibits D3-6 and D3-9, as “…two documents which form a really important part of May’s defence.” [323] Of the email of 11 June 2009, Mr Harris submitted to the jury that it revealed the 2nd appellant’s mindset, “What’s important at this stage is what we think May was thinking; she was thinking the previous financials are not relevant.” [324] Mr Harris made a similar submission in respect of the assertion by the 2nd appellant, in the email of 2 July 2009, “All accounts are “assumed” if they were in UBNZAHL.” [325] 326.In the result, in the closing directions that the judge gave the jury shortly before they retired, the judge directed the jury consistently with the request made of her by Mr Harris:[326]
327.Those directions gave specific focus to what the judge had said at the outset of her summing up was the 2nd appellant’s case, namely that figures provided were “projected accounts”, which assertion“…had been openly and clearly made in the emails.” Further, the directions clearly resonated with the closing submissions of Mr Harris. Significantly, although at the conclusion of her summing up the judge gave counsel an opportunity to address her further, Mr Harris sought no further direction from the judge.[327] Conclusion 328.Clearly, there is no merit at all in this ground of appeal. Connected transaction? 329.We turn to Grounds 1 and 2 of the 1st appellant’s perfected grounds of appeal and Ground 4 of 2nd appellant’s perfected grounds of appeal. In dealing with these grounds, we should emphasise that we have already held, in addressing the ‘One conspiracy or two?’ argument that the only sensible reason why the 1st appellant should have been copied into certain emails, in defiance of the 2nd appellant’s explicit instructions to the 3rd appellant that he should obtain her permission before making contact or releasing any financial information to anybody, was that the 1st appellant was himself a party to the production of false accounts (paragraph 104); and that the inference was irresistible that the 1st appellant was a knowing participant in the falsification of the accounts (paragraph 105). 330.Since we are satisfied that all three appellants were rightly convicted in respect of particulars (d) and (e) of both counts, it is somewhat otiose to consider arguments which are said to derive from particulars (a), (b) and (c), namely whether in fact and/or in law the transactions were connected under the Listing Rules, whether there was any duty to disclose the prior relationship between the parties and the effect of the commission sharing agreement (CSA) on those two issues. Nevertheless, lest we be wrong in our analysis of the evidence which we regard as pointing unmistakably to the complicity of all three appellants in particulars (d) and (e) of each count, we shall deal with the arguments in respect of particulars (a), (b) and (c). 331.It is the argument of the appellants that the VSA was governed by the Listing Rules, there being specific disclosure requirements in the Rules applicable to “connected transactions”. It is submitted that the allegations that the appellants falsely represented that UBNZ Trustee Limited, UBNZ Funds Management Limited and their respective ultimate beneficial owners were independent third parties to CJHM and its connected persons (particular (a)) and that there was no existing or prior relationship between the 1st and 2nd appellants with respect of the acquisition (particular (b), derived from the Listing Rules, in particular Rule 14, concerning “connected transactions”. Accordingly, “connected person” and “connected transaction” were terms of art and should have been interpreted in that context in accordance with the Listing Rules. 332.The argument goes on that whether or not this was a “connected transaction” was a matter of law for the judge in construing the Listing Rules. Had the judge appreciated that, she should have withdrawn the particulars from the jury because the prosecution had failed to prove that this was a “connected transaction”. If, however, it was a question of mixed law and fact, the judge failed to give any directions to the jury as to how the 2nd appellant might or might not be a “connected person”, how there might be a duty to disclose the relevant connection and whether the 1st appellant knew of the connection and his duty to disclose such connection. 333.At the risk of oversimplification, the argument is that if there was no duty to disclose a “connected transaction” because there was no connected transaction, there could be no false misrepresentation. 334.In addressing this complaint, it is important to note at the outset that nowhere in the statement or particulars of either conspiracy count is there any mention the “Listing Rules”. This should be contrasted with the case of HKSAR v Cheng Chee Tock Theodore (No 2) [328], on which Ms Montgomery places particular reliance, where the charge specifically alleged that the appellant and another, between certain dates [329]:
335.As the Court of Final Appeal in Cheng Chee Tock Theodore (No 2) held, the prosecution was, in the terms of their allegation, required to prove beyond reasonable doubt that [330]:
336.Accordingly, the case against Cheng Chee Tock Theodore, unlike the case before us, was explicitly concerned with whether the purchase of the property in question was a “connected transaction” under the Listing Rules, and the dishonest breach of the associated disclosure duties under those Rules if it was. 337.Nor in the particulars of either conspiracy offence in the present case is there any mention of the term “connected transaction”. The averment in particular (a) refers to “China Jin Hui Mining Corporation Limited (“CJHM”) and its connected persons”. It was always the case that the 1st appellant was a “connected person” under the Listing Rules by virtue of his directorship of 462: that was never in issue, nor could it be. Ms Draycott’s position was that while “connected person” had the meaning ascribed to it under the Listing Rules, it did not mean that there had to be a “connected transaction”, nor was it the prosecution’s allegation that this was a “connected transaction” within Rule 14 of the Listing Rules. That was never averred in the indictment and it was never the prosecution case. 338.Ms Draycott pointed out that prior to the trial, by letter of 25 September 2015, instructing solicitors on behalf of the 1st appellant had sought specific details of the prosecution case against their client in respect, inter‑alia, of particulars (a) and (b) on the two conspiracy counts on the indictment. The question the solicitors posed on behalf of the 1st appellant is noteworthy in the present context, as is the response from the prosecution. The solicitors wrote as follows:
Counts 1 and 2 – Particular (b)
339.To this request, Ms Joycelyn Ng, of the Department of Justice, who was to be Ms Draycott’s junior at the trial and this appeal, answered on 6 October 2015, as follows:
340.It is quite clear from this exchange that neither party made any mention whatsoever of the Listing Rules or that the acquisition might be a “connected transaction”, the 1st appellant anticipating that the case on these particulars concerned the CSA, and the prosecution confirming that that was so in the context of the fact that the 1st and 2nd appellants had been working together since 2005 and, in relation to New Zealand farms and 462, since 2009. Ms Draycott says that from this point onwards, the basis of the prosecution case was very clear that the 1st and 2nd appellants were “working together” dishonestly, effectively on the same sides of the acquisition. 341.Furthermore, prior to the trial, there was a joint formal application by the defence, inter‑alia, to quash particulars (a) to (c) of each of the conspiracy counts. Ms Draycott made clear in her response to that application that:
That remained her position before us. 342.In her ruling on the matter on 16 October 2015, the judge held:
No mention was made of any requirement on the prosecution to prove that this was a “connected transaction” under the Listing Rules. 343.We have read Ms Draycott’s opening speech to the jury. Peppered throughout that speech are references to the 1st and 2nd appellants working closely together, both before the acquisition and in relation to the acquisition. Of the CSA, the prosecution said:
A little later, it was alleged:
In respect of Katherine Chan, the Chairwoman of 462, it was said:
344.Two days later, still in opening her case to the jury, Ms Draycott summed up her position in respect of particulars (a) and (b) of the conspiracy counts as follows:
345.It is clear that during the trial, the defence plainly and purposely attempted to shift the focus of the prosecution case to the question of whether this was a “connected transaction” under the Listing Rules. The prosecution’s response to this attempt, however, was that whether or not it was a “connected transaction”, that was a determination for SEHK to make on the basis of full and proper information being disclosed to it. Ms Draycott, in her closing speech to the jury, submitted as follows:
346.We consider that Ms Draycott’s position was correct. The 1st appellant was clearly a “connected person”: as a director of 462, he could not be otherwise. However, whether this was also a “connected transaction” under the Listing Rules was not germane to the particulars of the indictment. In any event, it was for the SEHK to determine whether or not it was a “connected transaction” on the basis of full and proper disclosure of information by the parties concerned. It was not for the 1st and 2nd appellants to determine what they should have disclosed, in the belief that it was not a “connected transaction”. Such disclosure as they did make in answer to the enquiry from SEHK of 10 August 2009 [331] that there was “no existing or prior relationship … with respect to the Acquisition” [332] was wholly misleading and disingenuous. The further statement by the 2nd appellant in her reply to SEHK that the 1st appellant and she were “not partnering in any way” was simply untrue. 347.When the judge came to sum up to the jury, she summarised the prosecution’s position as follows [333]:
348.In our judgment, the allegation that the 1st and 2nd appellants were “working together” on the acquisition, when they were ostensibly portraying themselves as on opposite sides in the acquisition, was a consistent theme throughout this prosecution in respect of its case on particulars (a) and (b) (and also (c)). Whilst we can understand how the defence of the 1st and 2nd appellants in particular may have wished to have shifted the battleground to what they conceived to be the more problematic terrain for the prosecution of whether or not there was a “connected transaction” under the Listing Rules, it was not to the point that the acquisition was or was not such a transaction, nor was it ever the basis of the prosecution case that it was. 349.In our judgment, the judge was correct to direct the jury at the outset of her summing up as follows [334]:
350.The judge was also careful to tell the jury that simply because the two appellants knew each other in the past and had had business dealings with each other was not sufficient to establish that they had been “working together” on the acquisition. She said [335]:
Conclusion 351.Accordingly, we reject the appellants’ arguments that impugn the validity of particulars (a) and (b) of the conspiracy counts as requiring the need for the prosecution to prove that this was a “connected transaction” under the Listing Rules. That was not the prosecution case, and it was not necessary for the judge to rule on this matter as a question of law or to spell it out as an element which the jury needed to resolve in favour of the prosecution when considering particulars (a) and (b) of the conspiracy counts. Should the CSA have been disclosed? 352.What was the prosecution case throughout this trial was that the CSA should have been disclosed to the SEHK and that its concealment from, or failure to be declared to, the SEHK was dishonest (particular (c) in each of the two conspiracy counts). In view of the arguments, it is worth setting out the exact terms of the CSA, which was a tripartite agreement signed and executed between the 1st and 2nd appellants and Barry Fraser on behalf of Latitude Asia Limited (BVI) on 8 October 2008. The relevant parts read:[336]
353.Although it was put to Barry Fraser in cross-examination that the CSA had no application to the 462 acquisition, and that it had in any event expired, he did not agree. He testified that the CSA was an “open agreement” drafted by the 2nd appellant with no time duration or limitation and he was still entitled to be remunerated under it. The judge identified the respective issues for the jury as follows [338]:
354.It was also the evidence of William Wong, the Vice President of the listing division of the SEHK, that even if the CSA had expired, disclosure still had to be made in accordance with Chapter 2.13 of the Listing Rules [340]. He did accept, however, that disclosure was not necessary if the CSA was “entirely not related” to the acquisition [341]. However, the judge made clear to the jury that failure to disclose the CSA was not sufficient by itself to prove the indictment [342]:
355.The purpose of the CSA, whether it remained extant and valid at the time of the acquisition, what the 1st appellant thought about it and whether it was dishonestly concealed when it should have been disclosed were clearly matters of fact for the jury to decide, as the judge explained. Conclusion 356.We are satisfied that the judge put the CSA in its proper context and that her directions were entirely fair. There is no merit in this complaint. The prosecution reliance on the testimony of Katherine Chan 357.At the outset of his oral submissions, Mr Winter submitted that the prosecution had made a fundamental error in relying on the oral testimony of Katherine Chan over contemporaneous documentation. We refused his application for leave to adduce fresh evidence at the hearing. Our reasons for that ruling are at Annex A of this judgment. 358.Mr Winter suggested that at the heart of Katherine Chan’s evidence was the statement that in April 2009 she had been told and believed that the 2nd appellant owned the farms ultimately to be acquired by 462. That evidence was untrue, as was her subsequent version that she discovered only at about the time that the acquisition agreement was signed on 22 May 2009 that the 2nd appellant had merely paid a deposit in order to purchase the farms. Katherine Chan was driven to take that position in face of the fact that the acquisition agreement made provision for financial assistance to be given to the 2nd appellant to purchase the farms, so as to transfer them into UBNZ Assets Holdings prior to the acquisition of the latter by 462. 359.Mr Winter submitted that the contemporaneous documentation, including emails commencing 11 May 2009, made it clear that by that date Katherine Chan knew that the 2nd appellant did not own the farms. An email of that date to Katherine Chan from 462’s solicitors, G & L Gates, stated “An initial draft of the sale and purchase agreement is attached.” [343] Further, that those emails established that Katherine Chan and Kerry Knight understood that Knight Coldicutt had received joint instructions from Katherine Chan, on behalf of 462, and the 2nd appellant to effect the “…initial acquisition of the farms together under the correct OIO structure and then completing the S & P.” He contended that the submission resonated with complaints made under Ground 11(iv) of the grounds of appeal against conviction, namely that because Katherine Chan knew that Knight Coldicutt had advised the 2nd appellant’s companies neither she nor 462 were defrauded. It gave the lie to her evidence and established conclusively that there was no deception and no fraud in respect of particulars (d) and (e) on Katherine Chan or 462 at all. Particular regard was to be had to the emails on and between 11 and 13 May 2009 in which Katherine Chan was a participant.[344] Mr Winter acknowledged that “the detail of the contemporaneous material” that he drew to this Court’s attention was not “deployed” at trial. Ownership of the farms 360.Katherine Chan testified in evidence in that she had known the 1st appellant since around 2004. After a gap without contact between them of 4 or 5 years, in April 2009 the 1st appellant contacted her and told her of a business possibility involving farms in New Zealand. The 1st appellant said that the farms belonged to a wealthy businesswoman, May Wang, in New Zealand.[345] Of her subsequent meetings with the 2nd appellant, she said that she thought that the 2nd appellant had told her that the farms were owned by her company UBNZ. Having been told that the 2nd appellant was the owner of the farms by the 1st appellant, that was her belief, subconscious thought and impression. There was no specific conversation with the 2nd appellant.[346] 361.Then, Katherine Chan testified that in the course of preparations for the acquisition agreement she came to know of a request by the 2nd appellant to use the convertible notes as a ‘pledge’ in respect of her own acquisition of the farms. The 2nd appellant told her that she paid a deposit of $50 million.[347] Katherine Chan went on to explain that she was given that answer by the 2nd appellant in the period June, July or August 2009, in consequence of enquiries that she raised with her, the SEHK having made enquiries of 462 as to what consideration had been paid for the farms by UBNZ. There had been no conversation between them prior to the signing of the agreement on 22 May 2009 about the consideration paid for the farms.[348] 362.Katherine Chan went on to say that it was her impression that the 2nd appellant “was running the farms on a day‑to‑day basis.” The 2nd appellant had told her in May 2009 that she had to wake up during the night to deal with business on the farms.[349] 363.In cross‑examination by counsel for the 1st appellant, Katherine Chan was adamant that she had been told by the 1st appellant that the 2nd appellant, a New Zealand woman, owned the farms in New Zealand.[350] In cross‑examination by counsel for the 2nd appellant, in face of the suggestion that nothing was said to her at her first meeting with the 2nd appellant about her owning the farms, Katherine Chan said “I don’t remember.” [351] She added that after she had been told by the 1st appellant that they were owned by a New Zealand woman, she believed that to be the case.[352] However, by the time that she signed the Sale and Purchase agreement on 22 May 2009 her “state of mind was that she had the right to acquire these farms but she had paid a deposit, but not all the money.”[353] Subsequently in cross‑examination, in the context of the Sale and Purchase agreement, she explained how she came to be in that state of mind:[354]
Finally, she disagreed with the suggestion that the 2nd appellant had never told her that she paid a deposit towards the purchase of the farms or that she was already operating the farms.[355] The engagement of Knight Coldicutt 364.In her evidence-in-chief, Katherine Chan said that, having been shown the six farm agreements in court, dated 18 May 2009, she was unaware until then that they had been entered into by the 2nd appellant only four days before the acquisition agreement with 462 nor that Knight Coldicutt acted as the 2nd appellant’s solicitor.[356] She said that if she had known that Kerry Knight and Knight Coldicutt also represented the 2nd appellant’s companies in the acquisition of the farms, “I would not engage Knight Coldicutt to represent me.” [357] She said that a lawyer cannot represent the vendor and the purchaser at the same time and in a transaction of such a large‑scale “it absolutely cannot be done.” Having been referred to the series of emails dated on and between 11 and 13 May 2009 in which she was a participant, Katherine Chan acknowledged that the 2nd appellant was copied into the chain of emails in which, by an email dated 13 May 2009, Katherine Chan responded to Kerry Knight’s email of 11 May 2009 informing him that she had instructed her staff to wire him US$10,000 as a retainer and that the “signed engagement letter will be emailed to you tomorrow.” Of the fact that the 2nd appellant was one of the recipients of the email chain and that the 2nd appellant had sent her an e‑mail about one hour later confirming that Kerry Knight had begun work and would “work on full speed to get done for us”, Katherine Chan said clearly the 2nd appellant knew that 462 had instructed Kerry Knight. She did not know why the 2nd appellant had been copied in the e‑mail chain. 365.In her evidence-in-chief, Katherine Chan said that as a result of enquiries made by the SEHK she had engaged in an exchange of emails [358] with the 2nd appellant on 18 December 2009 over the issue of whether or not Knight Coldicutt, who had been engaged as the legal representatives of 462, “…is also the legal adviser of the vendor.” The 2nd appellant replied:[359]
Katherine Chan said that she believed the 2nd appellant. 366.In a second email sent to Katherine Chan by the 2nd appellant on 18 December 2009, it was asserted that “our legal adviser is Kay Keam, partner of Martelli Mckegg. As a result, she said that 462 published an announcement, under the heading ‘Further Clarification In Relation To The Acquisition Of UBNZ Assets Holdings Limited’, on 18 December 2009 stating, inter‑alia:[360]
367.In cross-examination on behalf of the 1st appellant, Katherine Chan was taken to another chain of similar emails, which contained some additional emails.[361] She agreed that at the beginning of the email chain was an email, dated 11 May 2009, from Mr Navin Aggrawal of K & L Gates to Kerry Knight. That email was not part of the chain of emails to which Katherine Chan had been referred in examination in chief.[362] The email referred to a discussion between the two of them and stated:[363]
368.Katherine Chan acknowledged that in his reply Mr Kerry Knight had said “Thank you for your instructions”. She agreed that he was thanking K & L Gates for instructing him. Also, she agreed that in her reply to Mr Kerry Knight, dated 12 May 2009, she had said “Thank you for accepting our invitation to act as our lawyer on this acquisition.” [364] She agreed that Knight Coldicutt were being instructed in New Zealand to handle matters on the instructions of 462’s solicitors K & L Gates. Katherine Chan’s email went on to state:
369.Of her further email to Kerry Knight, dated 13 May 2009 [365], Katherine Chan confirmed that in instructing that US$10,000 be wired to Knight Coldicutt as a retainer and in stating that the signed engagement letter would be emailed to them, she was engaging them to act for 462. Of the 2nd appellant’s email to her an hour later, in which she had said “Kerry has already begun the work. He will work on full speed to get done for us”, she rejected the suggestion that Knight Coldicutt “… were going to help both you and May Wang to get this deal and all the necessary preliminaries arranged.” She said “that’s not my understanding. 462 was purchasing and he said to get things done. That means this deal.” [366] 370.Of the fact that the 2nd appellant was a recipient of the chain of emails, Katherine Chan pointed out that in her email of 12 May 2009 to Kerry Knight, copied inter‑alia to the 2nd appellant, she had said “I also understand that May will be responsible in supplying all the information on the farms to you”. Of that, she explained “ ‘You’ is Knight Coldicutt. That’s in relation to the farms.” 371.In cross-examination on behalf of the 2nd appellant, the suggestion made on behalf of the 1st appellant that the emails dated on and between 11 and 13 May 2009, in which Katherine Chan, the 2nd appellant and Kerry Knight were participants, made it plain that Knight Coldicutt had been engaged to act for both 462 and the 2nd appellant’s companies and that was known to Katherine Chan was not canvassed at all. It was not suggested that they gave joint instructions to Kerry Knight and that the 2nd appellant and Katherine Chan were working together and with others with knowledge of all the circumstances first, to acquire the farms for the 2nd appellant and secondly, then to give effect to the sales and purchase agreement dated 22 May 2009 so that neither Katherine Chan nor 462 were defrauded. Closing speeches 372.Similarly, that suggestion was not advanced in the closing speech made for the 2nd appellant by Mr Harris. By contrast, issue was taken with Katherine Chan’s evidence that the 2nd appellant had told her not only that she owned the farms but also that she operated them. Mr Harris read extensive excerpts to the jury from Katherine Chan’s evidence on these issues.[367] It was suggested to the jury that for it to be claimed that she was the owner of the farms was a “pointless lie” which could easily have been exposed, in particular at the time Katherine Chan visited the farms.[368] Further, it was suggested that by the time that Katherine Chan signed the sale and purchase agreement on 22 May 2009 it must have been clear to her that the 2nd appellant “did in fact not own the farms.” [369] Summing up 373.In the summing up, the judge reminded the jury shortly of Katherine Chan’s evidence of what she was told about the ownership and operation of the farms, together with related monies paid by the 2nd appellant. Also, she reminded them of her evidence as to the nature of the engagement of Knight Coldicutt to act for 462 in the sale and purchase agreement. Of her testimony in respect of ownership of the farms, the judge said:[370]
The judge went on to remind the jury:[371]
375.Of Katherine Chan’s evidence of being told by the 2nd appellant of a payment of a deposit in relation to the purchase of the farms, the judge said:[373]
376.Of Katherine Chan’s evidence of her knowledge of the role of Knight Coldicutt, the judge said:[374]
377.Although the judge’s directions in respect of Katherine Chan’s evidence as to what she was told of the 2nd appellant ownership and other dealings with the farms were given to the jury on the morning of the 2nd day of the judge’s summing up, it was not until the end of the summing up on the 4th day, in prospect of the jury being invited to retire on the morning of the 5th day, that Mr Harris raised issues arising from the summing up, which he suggested “might be thought to be unbalanced or unfair” and which he invited the judge to reflect on overnight. So, given that all the parties were provided with a transcript of the proceedings at the end of each day, the three issues raised with the judge represented the considered position taken by the 2nd appellant. One of the matters that he raised was in respect of what he described as the “pointless lies issue”, namely “where it was suggested by the prosecution that May Wang had given Kathy to understand that she owned and operated the farms and that she was getting up earlier to run the farms on the telephone.” Mr Harris suggested that the lies were “pointless” because sooner or later they would have been exposed.[375] 378.In the result, the judge gave the jury further directions in respect of that issue:[376]
379.Significantly, Mr Harris sought no direction from the judge that the contemporaneous documentation, in particular the emails passing between the parties on and between 11 and 13 May 2009 suggested that the 2nd appellant and Katherine Chan were working jointly and with others with knowledge of all the circumstances to acquire the farms for the 2nd appellant effect could be given to the sale and purchase agreements dated 22 May 2009, in consequence of which neither Ms Katherine Chan nor 462 were defrauded. That is not surprising, because that was not the case for the 2nd appellant that had been advanced at trial. 380.As Mr Winter informed the Court candidly at the beginning of this submission the detail of the contemporaneous material to which he invited this Court to focus was not deployed at trial. Insofar as Katherine Chan was cross‑examined about the contemporaneous emails, it was in cross‑examination by counsel for the 1st appellant. That was done in broad terms only and, as noted earlier, resulted in Katherine Chan emphatically rejecting the assertion that Knight Coldicutt had been engaged to act for both the 2nd appellant and 462. She knew nothing of the fact that Knight Coldicutt had acted as solicitors for the 2nd appellant in the purchase of the farms, the sale and purchase agreements in respect of which were signed on 18 May 2009, until she attended the trial as a witness. It follows that the reference in the minutes of the board meeting of 462,[377] approving the sale and purchase agreement confirming and approving the “appointment of Knight Coldicutt as the legal adviser to the company as to New Zealand laws for the Acquisition” was entirely consistent with Katherine Chan’s evidence that she had instructed them to act for 462 only. 381.Of the issue of what Katherine Chan had been told and what she believed about the ownership, operation and payments in respect of the farms, it is clear that it is important to have regard to her evidence of the developing sequence in her knowledge. The genesis of her belief that the 2nd appellant owned the farms lay squarely with what she was told by the 1st appellant. That was the context in which she met the 2nd appellant and on which she rested her subsequent impressions and beliefs. However, she made it clear at an early stage in her evidence in chief that she came to understand that the 2nd appellant was not the owner of the farms when requests were made during the negotiation/preparation of the sale and purchase agreement for provision to be made for financial assistance to be given by 462 to the 2nd appellant’s company to acquire the farms. Clearly, that was before 22 May 2009 and after the reference to the fact that an “initial draft” of that document existed in the email from Navin Agarwal to Mr Kerry Knight on 11 May 2009. So, she accepted that was the state of her knowledge before she signed the agreement on 22 May 2009. It was her evidence that nevertheless in those circumstances she believed that the 2nd appellant must have had a legal right to purchase the farms. Then, as the judge reminded the jury it was her evidence that in the period after the signing of the sale and purchase agreement, but before the circular was issued on 8 September 2009, some substance was given to that belief when she was told by the 2nd appellant that she had paid a deposit of $50 million. Conclusion 382.It is clear that the summing up addressed the issues of the truth of Katherine Chan’s evidence of her knowledge and belief as to the 2nd appellant’s ownership of the farms and related matters and her knowledge of the role of Knight Coldicutt as presented in the 2nd appellant’s case at trial. Of the former issue, the judge set out succinctly the relevant parts of her evidence and, in her additional directions at the end of the summing up, gave focus to what was in issue in the case of the 2nd appellant. She did so in the context of her earlier directions that “…findings of facts is a matter for you” [378] and of the evidence of witnesses “It is up to you what to accept and what to reject.” [379] 383.Of the latter issue, no case was presented by the 2nd appellant that Katherine Chan was a party to giving joint instructions to Knight Coldicutt to act for both 462 and the 2nd appellant in respect of the farms. In that context, it is to be remembered that the 2nd appellant was represented by leading counsel at trial. 384.Mr Winter’s examination of the contemporaneous documentation in no way substantiates his claim that it leads to the conclusive determination that Katherine Chan was a party to such joint instructions. On the contrary, it is consistent with her testimony. 385.No issue was taken at trial with the evidence that Kerry Knight signed the six farm agreements, dated 18 May 2009, as the solicitor of the purchaser UBNZ Funds Management Limited. In that context, the judge directed the jury:[380]
The admissibility of the deposition of David Wiltshire 386.At the hearing we refused Mr Fitzgerald’s application to adduce fresh evidence on behalf of the 3rd appellant in respect of the circumstances in which the 3rd appellant had not attended or being represented at the hearings in New Zealand in October 2013, at which David Wiltshire had made his depositions which were adduced into evidence at the trial. Our reasons for that ruling are set out at Annex B of this judgment. 387.Mr Fitzgerald, for the 3rd appellant, supported by Ms Montgomery for the 1st appellant, submitted that the judge had erred in her rulings of 17 March and 2 October 2015, and her reasons for the latter ruling, dated 6 October 2015, in which she admitted into evidence parts of the deposition of David Wiltshire. The 3rd appellant’s submissions 388.Of the judge’s ruling of 17 March 2015, Mr Fitzgerald submitted that she erred in failing to stipulate the exhibits she admitted as being the business records of David Wiltshire, and by failing to identify the parts of his deposition, which she admitted as speaking to those business records. Some of those exhibits were the business records of Mark King not David Wiltshire. Of her ruling of 2 October, and her Reasons for Ruling of 6 October 2015, he contended that the judge erred in determining in respect of the provisions of section 77 F(1)(d) of the Evidence Ordinance, Cap. 8 [381], that it was not unfair to admit other parts of David Wiltshire’s deposition in the absence of cross‑examination on behalf of the 3rd appellant. 389.First, in renewing an application in respect of which the single judge had refused leave, he contended that the judge had erred in determining that it was not “reasonably practicable” to secure the attendance of David Wiltshire at the trial in Hong Kong. Secondly, he submitted that, although submissions had been made to the judge on behalf of the 3rd appellant that the latter did not have the financial ability to participate in the proceedings which led to the making of David Wiltshire’s deposition in New Zealand, the judge had not indicated that she did not accept the submission and “did not make a proper finding on the issue”. Mr Fitzgerald submitted that the judge’s statement “…one would have thought that the 3rd accused would seek to cross‑examine Wiltshire (despite the suggested shortage of funds) if Wiltshire’s evidence is contentious and important to the extent which Mr Khosa now submits before me” was unjustified. 390.Thirdly he submitted that the determination was made in error, given her statement:[382]
391.Relevant to the judge’s determination was the fact, as was apparent from the transcript of the Preliminary Inquiry that, in submissions made to the magistrate at the conclusion of those proceedings, it was contended on behalf of the 3rd appellant that the provisions of the Magistrates Ordinance required the presence of the magistrate at the Preliminary Inquiry. So, it was argued that proceedings in New Zealand, in the absence of the magistrate, were procedurally flawed. 392.Next, it was contended that the judge erred in determining that “Wiltshire’s evidence is not of the be-all and end‑all type”. In that context, the Court was invited to note that on 5 February 2015, Mr Khosa had informed the judge of the nature and ambit of the cross‑examination that the 3rd appellant wished to conduct of David Wiltshire, namely that a lot of the accounts were inaccurate, that it was suspected that they were trying to hide profits, that they were siphoning off profits to the Crafar family and that there were large amounts of cattle which were missing.[383] 393.For her part, Ms Montgomery submitted that the detriment suffered by the 1st appellant was the absence of cross‑examination by the 3rd appellant of David Wiltshire which cross‑examination might have resulted in helpful answers as to the reasonable deduction of expenses and reasonable increases in income in the accounts of the six farms. The respondent’s submissions 394.Ms Draycott submitted that there was no confusion about which part of David Wiltshire’s evidence was encompassed by the judge’s ruling, admitting into evidence as business records exhibits adduced in David Wiltshire’s deposition and his related testimony. She said “it related simply to the supply of the figures to KING.” However, she accepted that David Wiltshire had not adduced into evidence the figures that he had collated from information provided to him by the farms in the CraFarms Group. 395.Ms Draycott submitted that the judge was entitled to determine that it was not reasonably practicable to secure David Wiltshire’s attendance at the trial in Hong Kong and to determine, having regard to the provisions of section 77 F(1)(d) of the Evidence Ordinance, that admitting into evidence the other parts of David Wiltshire’s deposition would cause no unfairness to the 3rd appellant. There was no evidence that the 3rd appellant failed to understand that the evidence of David Wiltshire would be used at trial. Counsel for the prosecution had stated that was to be the case in court in the Preliminary Inquiry on two occasions, namely 9 January and 22 February 2013. The 3rd appellant, who gave evidence in English at the trial, was present in court on both occasions. On the second occasion, the 3rd appellant’s counsel, Mr Douglas Kwok was present in court, whilst in his absence on the earlier occasion Mr Khosa, who then represented another defendant not committed for trial, held Mr Kwok’s papers. 396.Ms Draycott submitted that the prosecution had indicated its willingness to make a reasonable contribution to the expenses of the 3rd appellant and his lawyers travelling to attend the proceedings in New Zealand. They did so first of all in a letter dated 17 July 2013, more than two months before the proceedings began in New Zealand at the end of September 2013. In face of no communication from the 3rd appellant, the prosecution raised the matter in the Preliminary Inquiry on 1 August 2013. There followed a reminder letter, dated 13 August 2013. In a letter dated 5 September 2013, the prosecution confirmed that it would reimburse the travelling expenses to New Zealand of the 3rd appellant’s Hong Kong lawyers, whilst declining to reimburse expenses of instructing New Zealand lawyers and declining to advance the monies before the proceedings took place in New Zealand. That was in accordance with government policy. 397.Ms Draycott said that the respondent did not accept that the reason for the 3rd appellant’s non‑attendance at the proceedings in which David Wiltshire gave evidence in New Zealand in October 2013 was due to his impecuniosity. It was necessary to substantiate such an assertion with evidence. 398.Ms Draycott submitted that, although the judge ruled that other parts of David Wiltshire’s deposition was admissible on 2 October 2015 and explained in terms in her reasons for ruling of 6 October 2015 that she was satisfied that no unfairness would result to the 3rd appellant, the issue could have been revisited at any time up and until the evidence was adduced before the jury at the trial, namely 14 December 2015. 399.In that context, Ms Draycott invited the Court to note the exchanges between the prosecution, counsel for the 3rd appellant and the judge at pre‑trial hearings held on and between 15 and 20 October 2015. At the outset, on 15 October 2015, Mr Khosa informed the judge that the “sufficiency and the accuracy” of the accounts provided by David Wiltshire to Mark King was challenged.[384] In response, Ms Draycott indicated that in those circumstances it would seek to recall David Wiltshire. 400.On 16 October 2015, Ms Draycott made an application to recall David Wiltshire. Counsel for all three appellants opposed the application. Mr Khosa told the judge “I’ve said from day one last week I don’t need Wiltshire.” Then, the judge said that “if… it turns out that you have a case to put to Wiltshire and nobody else can deal with that case then… you have to apply to me to have Wiltshire recalled so that you can put the case to him and so that he can deal with it.” [385] Mr Khosa replied:[386]
In those circumstances, Ms Draycott indicated that she would not persist with her application.[387] 401.On 19 October 2015, Mr Khosa informed the judge that now he wished to apply to cross‑examine David Wiltshire and that he proposed doing so on the basis of a joint application together with the prosecution. However, Ms Draycott replied that, given that no issue was now taken by the 3rd appellant on the accuracy and sufficiency of the material provided by David Wiltshire to Mark King, the prosecution would not be a party to a joint application. 402.On 20 October 2015, Mr Khosa informed the court in written [388] and oral submissions that, since the application to recall David Wiltshire was no longer a joint application, he withdrew his application to recall that witness. 403.For her part, Ms Draycott asserted that the prosecution would nevertheless entertain an application for reimbursement of expenses of travel to and accommodation in New Zealand for the 3rd appellant and his lawyers even if the application was not a joint application but one initiated only by the 3rd appellant. The judge’s rulings 404.In the hearings conducted on and between 3 and 6 February 2015, the judge received submissions in respect of all the matters arising as to the admissibility, inter‑alia, of David Wiltshire’s deposition and the exhibits adduced in that testimony. 405.In her ruling of 17 March 2015, although the judge made wide‑ranging findings, inter‑alia, in respect of submissions made or supported by the 3rd appellant, she only ruled admissible the “…the business records produced by Wiltshire” and “…that part of Wiltshire’s deposition which dealt with such production.[389] The business records produced by David Wiltshire 406.In her ruling of 17 March 2015, the judge noted that the prosecution submitted:[390]
407.Of the “averments made in the depositions of… Wiltshire”, the judge noted that the prosecution accepted “that they did not only deal with the records” but that it was “said that only those other matters averred in the depositions which have nothing to do with the records are subject to the “no unfairness” requirement.” [391] 408.Of the submissions made on behalf of the 3rd appellant, the judge noted that it was submitted that “unfairness” would result “if the records exhibited to the deposition of Wiltshire are to be admitted.” She said that it was contended that “the accounting records were not accurate and the profits were understated” and that it was contended that the admission of the depositions and the accounting records would result in unfairness, given that David Wiltshire had not been cross‑examined.[392] 409.In the result, the judge determined that “the documents in question produced by Wiltshire are the business records of the CraFarms Group.” [393] In making that determination, the judge said that she had regard to the fact that David Wiltshire was the finance and administration manager of the Group and to his evidence as to his responsibility within the Group. The judge noted that in his evidence David Wiltshire had said that he prepared the drafts which he supplied to Mark King at Stretton’s, who “formally did the accounts” and that David Wiltshire went on to testify:[394]
411.In determining that the documents produced by Wiltshire are the business records of the CraFarms Group, the judge said “…then the court is not required to consider the “no unfairness” requirement specified in section 77 F(1)(d). In other words, once the documents satisfy the conditions, they are admissible.” [396] 412.Nevertheless, although she said she was unclear as to the basis of Mr Khosa’s submission that the documents produced by David Wiltshire ought to be excluded on the basis that unfairness would be caused to the 3rd appellant, the judge proceeded on the basis of a consideration of the “judge’s “overriding duty to ensure a fair trial.” Having said that in addressing that issue “all the relevant circumstances must be taken into account” [397], the judge determined not to exercise her discretion to exclude that evidence on the basis of unfairness.[398] Then, the judge ruled:[399]
413.On the other hand, having said “I cannot be sure, at this stage, that it is not reasonably practicable to secure Wiltshire’s attendance in Hong Kong”, the judge determined:[400]
414.Having made those determinations, the judge did not condescend to any greater particularity as to which exhibits and which part of David Wiltshire’s testimony was encompassed by one or other of her rulings. No greater particularity was sought from the judge by any of the parties. The documents adduced into evidence by David Wiltshire 415.Prior to David Wiltshire giving evidence in October 2013, Mark King had given evidence in the Preliminary Inquiry in Hong Kong in January 2013. In the course of that testimony he adduced into evidence emails, attached to which were the sets of accounts which he had provided to the 3rd appellant, copied to David Wiltshire, to which David Wiltshire made reference in his testimony and which were adduced as exhibits.[401] 416.Also, David Wiltshire adduced into evidence other emails to which he was a party. They included an email to which he had attached “Analysis-Fonterra End of Season Movement Statements.” In his testimony, he explained that he collated the information from information provided by Fonterra in respect of each of the individual farms.[402] He provided those documents to Mark King so that “it would flow through into the accounts…that would be produced at the end of the year.” [403] In addition, David Wiltshire spoke to two milk sharing agreements which the CraFarms Group had entered into, in which the costs of production and the division of income were divided between the group and the other party.[404] 417.Then, David Wiltshire testified about the circumstances in which the Confidentiality Agreement, dated 3 October 2008, had been entered into with Barry Fraser on behalf of UBS Funds Management (NZ) Ltd and Mr Allan Crafar on behalf of the CraFarms Group.[405] That followed an approach by Barry Fraser and John Dixon, who said that they represented a Chinese Group interested in buying the farms.[406] Subsequently, he witnessed some of the signatures on the Consultancy Agreement, dated 17 November 2008, between the CraFarms Group and Barry Fraser, which provided for the payment of a success fee to the latter on full and final settlement of payments to the former to become due under the proposed farm agreements.[407] Finally, David Wiltshire testified that he had provided information, which was included in the six agreements dated 18 May 2009 for the sale and purchase of the total of 22 farms, and he identified signatures on the various agreements.[408] 418.Although David Wiltshire testified as to the nature of the information that he had obtained from the six farm companies and of how he collated that information and passed it on to Mark King, he did not produce that collated information. However, he did testify that he had done his best to provide Mark King with accurate material, saying that by 2009 “…we made an extra effort to make sure that the information that was collected, which originally wasn’t collected at all, was to the best of our ability as accurate as possible, as it was presented.” [409] He said that to the best of his knowledge the accounts produced by Mark King from the raw material with which he supplied him were accurate.[410] 419.It is clear that the various sets of accounts prepared and circulated by Mark King, to which David Wiltshire made reference in his evidence were exhibits produced in the evidence of Mark King in the Preliminary Inquiry. They were the business records of Mark King and had been adduced into evidence prior to the testimony of David Wiltshire. As David Wiltshire made clear in his testimony, the accounts were circulated to him so that he could raise any questions, if he thought that they were not representative of the material he provided to Mark King.[411] No doubt, all the parties in the lower court were aware that was the case. Obviously, all the other exhibits adduced in David Wiltshire’s deposition were the business records of the CraFarms Group. 420.As noted earlier, the judge did not stipulate with any particularity what was encompassed in her ruling that David Wiltshire’s deposition which spoke to the production of records was admissible, in contrast to her refusal “to admit that part of Wiltshire’s deposition and any document exhibited thereto which has nothing to do with the production of records.” [412] No request was made of the judge to clarify her ruling. 421.Notwithstanding the fact that the judge had made that ruling, in hearings held on 23 and 27 July 2015 those representing the 3rd appellant supported the objection of Mr Fitzgerald, then representing the 1st appellant, to the admissibility of that part of David Wiltshire’s evidence in which he sought to compare the figures he provided to Mark King and those appearing in the 462’s Circular. No other specific objection was advanced on behalf of the 3rd appellant in respect of the admissibility of an exhibit or to any other part of the deposition of David Wiltshire. In particular, no complaint was made as to the lack of particularity in the judge’s ruling. 422.In her ruling on 11 August 2015, the judge noted that the “primary objection” to the admissibility of that part of David Wiltshire’s deposition was “since Wiltshire was not called as an expert witness in the accounting field, he was not in a position to say whether the figures appearing in the circular were correct or not.” [413] In ruling in favour of the objection and in determining to exclude that part of the evidence as inadmissible, the judge said that David Wiltshire “…did seek to make a comparison between the figures he provided to Mark King and those appearing in the CJHM circular.” [414] The judge said:[415]
423.Although the hearing of 2 October 2015 presented yet another opportunity to take issue with the alleged lack of particularity in the judge’s ruling as to what of the records adduced in the evidence of David Wiltshire and which parts of his oral testimony had been ruled admissible in the 17 March 2015 ruling, the matter was not canvassed at all. We are satisfied that that is because no issue of any substance arose. Nothing has been canvassed before us that makes good the submission to the contrary. There is no merit whatsoever in this ground. It ought not to have been advanced. The non-participation of the 3rd appellant in proceedings in New Zealand at which David Wiltshire testified 424.On 5 February 2015, Mr Khosa addressed the judge in respect of the circumstances in which the 3rd appellant had not participated in the proceedings in New Zealand:[416]
The purpose of the New Zealand hearing 425.In her ruling on 17 March 2015, the judge said that issue was taken on behalf of the 3rd appellant as to the purpose of the hearing in New Zealand at which David Wiltshire gave evidence, noting that it was contended by Mr Khosa that the 3rd appellant had been advised by Mr Douglas Kwok that it was for purposes of “…the PI only”. The judge said that, although Mr Khosa had been asked whether or not he intended “to adduce evidence to support this claim”, in the event “no evidence was placed before me”.[417] 426.Of statements made by the prosecution of the use to be made of the evidence taken from David Wiltshire in New Zealand, the judge said that in addressing the magistrate in the Preliminary Inquiry on 9 January 2013, Ms Draycott had said:[418]
427.The judge went on to note that, on 22 February 2013, Ms Draycott had informed the magistrate in court:[419]
428.In that context, the judge went on to find:[420]
429.However, in the context of the subsequent correspondence sent by the Department of Justice to the 3rd appellant’s solicitors, the judge observed that the former had said that the 3rd appellant “…is entitled, but is not required, to be present at the hearing for the taking of evidence in New Zealand”. Of that statement, in the context of the statements made by the prosecution earlier that the evidence might be used in the trial itself, the judge said:[421]
430.Then, the judge noted that the 3rd appellant in person had informed the Department of Justice directly, by letter dated 27 August 2013, that acting on the advice of his solicitors he had contacted but had been unable to secure the assistance of either the Duty Lawyer scheme or the Legal Aid Department to obtain legal representation in New Zealand. The 3rd appellant requested that $300,000 be advanced to his solicitors rather than the expenses incurred being reimbursed. Of the letters in reply written by the Department of Justice to the 3rd appellant’s solicitors, the judge said:[422]
431.In the result, the judge said:[423]
432.Subsequently, the judge addressed complaints made by Mr Khosa of unspecified unfairness as the basis “to exclude the admission of Wiltshire’s records”.[424] Having adverted to the ambit of the evidence sought to be adduced by the prosecution from David Wiltshire as disclosed in the 4th Supplemental Request, the judge said [425] “…it was clear to the parties what the prosecution sought to do with Wiltshire.” In that context, and noting that the 3rd appellant had opted for a Preliminary Inquiry to test whether there was a prima facie case against him, the judge adverted to her earlier statement as to what she was prepared to accept of the 3rd appellant’s understanding:[426]
433.It is clear from the language used by the judge that she was not making a finding that the 3rd appellant did not understand that the deposition obtained from David Wiltshire in New Zealand could be used in the trial. Rather, she was making that assumption in his favour. There were obvious difficulties in making any finding to that effect, given the fact that the 3rd appellant had not given or called evidence on that issue. The judge said as much:[427]
434.Moreover, the judge had accepted that the prosecution had made it clear to the parties in open court in the Preliminary Inquiry that it was intended that the evidence so collected might be used for the trial in the same form [428] and that it had been stipulated that the proceedings “be video recorded in order that a video can be played to the jury in due course”.[429] The 3rd appellant’s counsel was present in court on the latter occasion. 435.Although, the judge was critical of the letters written by the Department of Justice to the 3rd appellant’s solicitors in respect of arrangements being made in preparation for the New Zealand proceedings they were the very same legal representatives who had been in court in the Preliminary Inquiry when the prosecution’s position had been spelt out. The Department of Justice did not write to the 3rd appellant in person. Rather, as was to be expected, it wrote to his solicitors. Not surprisingly, in those circumstances, the judge made no assumption, let alone a finding, that the 3rd appellant’s solicitors or his counsel did not know that it was the intention of the prosecution, if permitted to do so, to use David Wiltshire’s deposition at the trial before the jury. In that context, it is to be remembered, as noted earlier, that in his letter dated 27 August 2013 the 3rd appellant said that in contacting the Duty Lawyer scheme and the Legal Aid Department he had done so on the advice of his solicitors. There is no merit in this ground. The financial ability of the 3rd appellant to attend and/or be represented in the New Zealand proceedings 436.As noted earlier, in a letter to the Department of Justice, dated 27 August 2013 [430], the 3rd appellant sought the advance of HK$300,000 to his solicitors in advance of the prospective hearings in New Zealand, so that he could attend and be represented at those proceedings. Having asserted that he had been paid a limited salary by 462 of only HK$40,000 per month for the year 2012/2013, that he was making payments to the Inland Revenue Department in respect of a total of $553,125 due to them and that he had credit card debts of over $200,000, the 3rd appellant claimed:[431]
In consequence, the 3rd appellant sought a payment in advance to his solicitors “for above specific disbursement such as New Zealand barrister, airfares, hotel payments.” [432] 437.As was stated in the letter, it was a reply to letters from the Department of Justice to the 3rd appellant’s solicitors dated 17 July and 13 August 2013.[433] In those letters the Department of Justice informed the 3rd appellant that, if he wished to be present and/or legally represented at the proceedings in New Zealand, they would “…consider making a reasonable amount of contribution to economy class airfares and accommodation expenses reasonably incurred” upon a request being made “…supported by proof of your client’s financial situation”. 438.Also, the matter had been raised on 1 August 2013 with the Magistrate in the Preliminary Inquiry, on which occasion Ms Draycott said that no reply had been made to the offer. She acknowledged “…it’s absolutely clear that his funds are limited” and explained that it was for that reason that the offer had been made.[434] 439.In letters dated 5, 12 and 24 September 2013[435] the Department of Justice informed the 3rd appellant’s solicitors that the offer extended to the 3rd appellant, one counsel and one solicitor. In the letter of 12 September 2013 it was stated that the offer was made “on a reimbursement basis after the reasonable expenses are incurred”. The letter of 24 September 2013 noted that no request had been made as yet by the 3rd appellant and asked that the Department of Justice be advised of his intentions by the close of business on 26 September 2013. By letter dated 26 September 2013 [436], the 3rd appellant solicitors informed the Department of Justice that “… We have instructions from our client that our firm would not send any legal representatives (including both solicitor and counsel) to attend the New Zealand hearing.” 440.In addressing the judge at the February 2015 hearing on the issue of the 3rd appellant’s alleged impecuniosity, Ms Draycott invited the judge to note that, following the taking of depositions from witnesses in New Zealand in October 2013, the appellant had been represented by lawyers in the Preliminary Inquiry on fourteen days subsequent to the proceedings having taken place in New Zealand.[437] She invited this Court to note that the 3rd appellant was asked repeatedly in correspondence from the Department of Justice that, if he wished to make a request for a contribution to his expenses of participating in the New Zealand proceedings, to provide “… proof of his financial position”. No such proof was provided to the Department of Justice. Similarly, neither the judge nor this Court had been provided with any evidence to substantiate the 3rd appellant’s claim of his financial inability to participate in the New Zealand proceedings. 441.In referring to the submissions made on behalf of the 3rd appellant in respect of his impecuniosity before and at the time that the depositions were taken in New Zealand in October 2013 as “the suggested shortage of funds”, the judge made it perfectly clear that she did not accept, without more, the bare assertions made by the 3rd appellant in correspondence and by his counsel before the judge. Clearly, the 3rd appellant was put on notice of that determination. 442.In her ruling of 17 March 2015, the judge made it clear that she was not determining at that stage the issues that arose from operation of section 77 F(1)(d) of the Evidence Ordinance, namely whether she was satisfied that “no unfairness is likely to occur in those criminal proceedings consequent upon the deposition and any document… being admitted in evidence under this section”. She did not make that determination until 2 October 2015. Nevertheless, although there were opportunities to do so at subsequent hearings on 23 and 27 July and on 2 October 2015 the 3rd appellant did not seek to address the obvious absence of evidence to support the contention that his impecuniosity had rendered him unable to participate in the New Zealand proceedings. 443.There is no dispute that, in contrast to the issue of what the 3rd appellant understood to be the use which could be made of the deposition obtained from David Wiltshire in New Zealand, Ms Draycott did not submit to the judge that there was a need for evidence to substantiate the claim made by the 3rd appellant as to his alleged impecuniosity. Similarly, although the judge had raised the issue of whether or not the 3rd appellant was going to call evidence on the former issue, she did not do so in respect of the alleged impecuniosity. Perhaps, she ought to have done so. But, the judge’s view of the absence of supporting evidence for the bare assertions was made perfectly clear by her reference in her ruling to 3rd appellant’s “suggested shortage of funds”. On the evidence before her, the judge was entitled to be sceptical of the bare claim of impecuniosity. Although there were subsequent hearings and fully six months elapsed before the judge ruled on the issue of “unfairness” in the context of section 77 F(1)(d), no attempt was made to put any evidence before the judge to address that lacuna in the evidence. Conclusion 444.We are satisfied that there is no merit in this complaint. Was it “reasonably practicable” to secure the attendance of David Wiltshire at trial? 445.In his submissions to this Court, Mr Fitzgerald renewed his application for leave to appeal, refused by the single judge, on the grounds that the judge had erred in determining that it “is not reasonably practicable to secure Wiltshire’s attendance in Hong Kong”. He contended that the prosecuting authorities had not attempted to address the concerns that David Wiltshire expressed in an email to an ICAC officer on 18 February 2015 of the prospective circumstances of his coming to Hong Kong, namely:[438]
446.In that context, he invited the Court to have regard to the judgment of Heerey J in the Federal Court of Australia in Caterpillar Inc. v John Deere Ltd. (No 2) [439], which judgment was not put before the single judge. In that case, the respondent sought to put into evidence the deposition of an employee of the applicant, who was resident in the United States of America, on the basis that it would cause “undue expense or undue delay or would not be reasonably practicable” to secure his attendance in proceedings in Australia. In dismissing the application to adduce the deposition, in circumstances in which the respondent had only written twice to the witness, received no response and had not offered to pay any expenses, Heerey J said that it could be expected that an offer would have been made to the witness “…to meet all expenses and compensate for the interruption of his or her business, including payment of professional fees if appropriate.” [440] 447.In addressing the ambit of section 77 F(1)(d)(i) of the Evidence Ordinance, in particular “whether it is reasonably practicable to secure the attendance of the deponent, taking into account… the…. expense likely to be caused in securing his attendance”, in her ruling of 17 March 2015, the judge said:[441]
448.In reviewing the evidence before her of the steps taken to secure the attendance of David Wiltshire in Hong Kong to give evidence, the judge noted that Mr Leung, an ICAC officer, had sent him an email on 13 November 2014.[442] Having adverted to the fact that David Wiltshire had given evidence in New Zealand in 2013, Mr Leung wrote:[443]
449.In the context of that email, the judge noted Mr Leung had made two telephone calls to David Wiltshire on 21 January 2015. Of the conversation between them in the second of those telephone calls, the judge said:[444]
450.The judge went on to note that, although David Wiltshire had undertaken to reply in writing, he had not done so and attempts to contact him on 26 January and 2 February 2015 had failed. Then, the judge said that in an email, dated 18 February 2015, from David Wiltshire to Mr Leung, the former said:[445]
In reply, Mr Leung had said:[446]
451.Not surprisingly, in those circumstances the judge said “…when one reads these exchanges, one naturally gets the impression that the matter has not been concluded”. [447] She said that she did not know “…whether the prosecution are indeed working on something and hope getting some further development and I do not know if there are going to be other suggestions put to Wiltshire in order to get him to testify in Hong Kong.” [448] In those circumstances, she concluded “I cannot be sure at this stage, that it is not reasonably practicable to secure Wiltshire’s attendance in Hong Kong.” [449] 452.In her ruling, dated 11 August 2015, the judge again rejected the renewed application of the prosecution that she accept that it was not reasonably practicable to secure the attendance of David Wiltshire in Hong Kong to testify. The judge noted of his email, dated 18 February 2015:[450]
453.In response, Mr Leung had emailed David Wiltshire “We will let you know if we have other suggestions or any development of the situation”. In that context, the judge adverted to an email sent to David Wiltshire by Mr Leung, dated 24 July 2015, in which it was stated:[451]
454.The judge noted that, although telephone calls had been made to David Wiltshire on 24 and 27 July 2015, no contact had been established with him and, although a message had been left on the second occasion asking him to return the call, no reply had been received. The judge accepted that “… flight tickets, accommodation and subsistence allowance could be provided to Wiltshire and such offer had been communicated to him.” [452] Nevertheless, the judge said that, having regard to the “short lapse of time” in which David Wiltshire had not responded to the contacts made by Mr Leung, “I cannot be sure that it is not reasonably practicable to secure Wiltshire’s attendance in Hong Kong.” [453] 455.At a hearing on 2 October 2015, the judge ruled “…the remaining part of Wiltshire’s deposition and the related documents exhibited thereto are admissible.” [454] 456.In her reasons for the ruling, the judge noted that Mr Leung had a telephone conversation with David Wiltshire on 24 August 2015, in which he confirmed the position described in his email of 24 July 2015, namely “we have no other suggestions to make” to secure David Wiltshire’s attendance at the trial in Hong Kong. The judge said that “In reply, Wiltshire confirmed that he would not be able to travel to Hong Kong for the reasons he had already provided in his last email.” [455] 457.Of the issue of whether or not it had been proved that it was not “reasonably practicable” to secure David Wiltshire’s attendance at trial in Hong Kong, the judge said that in written submissions addressing that issue, in the proceedings held on and between 3 and 6 February 2015, Mr Fitzgerald had submitted on behalf of the 1st appellant that “financial inconvenience is not the same as impossibility”.[456] In those submissions, Mr Fitzgerald had contended “It is a matter for the DOJ, if they regard his evidence as essential, to alleviate any financial loss to the witness-which was his principal concern when he gave evidence on oath at the NZ hearing.” [457] 458.Of that submission, the judge said:[458]
459.Having noted that it was necessary to have regard to “various matters”, the judge said:[459]
460.The judge said of David Wiltshire’s replies “his concern about being the sole operator of his business is not something new.” She noted that it had been adverted to in the 4th Supplemental Request, which led to the New Zealand proceedings at which David Wiltshire gave evidence. Also, she referred to the occasions in his deposition in which he expressed concern to the court of “the time he spent in giving evidence.” [460] At the end of his evidence‑in‑chief, in response to being asked whether he was “…willing to come to Hong Kong to give evidence”, the following exchange ensued between Ms Draycott and David Wiltshire :[461]
461.Having adverted to the reasons that David Wiltshire had articulated in his email dated, 18 February 2015, for declining to come to Hong Kong to give evidence, reconfirmed in the telephone conversation with Mr Leung on 24 August 2015, the judge said:[462]
462.With respect, the reliance placed by Mr Fitzgerald on the observations of Heerey J in his judgment in Caterpillar Inc. v John Deere Ltd (No 2) is misplaced. In that case, the judge was construing provisions of the Evidence Act, 1995 of the Commonwealth of Australia in the course of civil litigation. Caterpillar Inc had brought proceedings against John Deere Ltd alleging infringement of an Australian patent relating to tractors. John Deere Ltd denied the infringement and cross‑claimed seeking revocation of the Caterpillar patent, inter‑alia, on the ground of invalidity. John Deere Ltd gave notice of an intention, pursuant to sections 63 and 64 of the Act, to rely on a previous representation of a Mr Grawey, previously employed by Caterpillar Inc. for 40 years, in a deposition made in proceedings in the United States of America. Now, Mr Grawey carried on a consultancy practice, in which a very substantial part of his custom came from Caterpillar Inc. In two letters, sent to Mr Grawey by solicitors acting for John Deere Ltd., he was invited to come to Australia to give evidence, it being stated that it would be the submission of John Deere Ltd that he be treated as a witness of Caterpillar and subjected to cross‑examination on behalf of John Deere Ltd. 463.As the judge noted, Mr Grawey was being invited to come to Australia “… presumably at his own expense, for the purpose of being cross‑examined by a company hostile to Caterpillar in a case in which that company is attacking the validity of a patent for an invention of which Mr Grawey is an inventor.” Of those circumstances, the judge said “It is hardly surprising that Mr Grawey did not respond to this unappealing invitation. (Also, were he to take legal advice it would be pointed out to him that Australian law does not permit a party to insert a witness into the opposing party’s case and then cross‑examine the witness.)” [463] 464.In addressing the issue of whether or not John Deere Ltd had taken all reasonable steps to secure Mr Grawey’s attendance at proceedings in Australia, so that he fell to be regarded for the purposes of section 63 of the Act as “not available” to give evidence, the judge posed the rhetorical question of what steps it might be assumed that John Deere Ltd would have taken to secure the attendance of an important American witness, but without preconceptions as to whether or not the witness might be cooperative. In answering the question, the judge said:[464]
465.In determining that John Deere Ltd had not proved that it had taken all reasonable steps to secure the attendance of the witness, the judge noted that the steps outlined above had not been taken. In those circumstances, given that the witness was to be taken to be available, the judge moved on to consider the provisions of section 64, which required regard to be had to whether “it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.” The judge said that in assessing whether the expense was “undue” regard had to be had to, first the cost of securing the attendance of the witness, secondly a comparison of that cost with the value of what was at stake in the litigation and, thirdly an assessment of the importance of the evidence.[465] He said that no evidence was provided as to the first two matters, but that “his evidence seems important” and that the expense of bringing him from the United States would not be an undue expense.[466] 466.Clearly, the observations made by a judge in answering his own rhetorical question as to what might be expected of parties to patent litigation in Australia to secure the attendance of witnesses from outside that jurisdiction is of very little assistance to this Court in addressing the issue of whether or not the judge erred in determining that in all the circumstances, including the expense likely to be caused, it was not reasonably practicable to secure the attendance of David Wiltshire to give evidence in Hong Kong. 467.There is no doubt that, from the time that Ms Draycott informed the magistrate in the Preliminary Inquiry on 9 January 2013 that it was necessary to go to New Zealand to take the evidence of David Wiltshire, he evinced a sustained reluctance to come to Hong Kong to give evidence. Equally sustained and repeated were the offers made by the prosecution to provide for the expenses of David Wiltshire travelling to Hong Kong to give evidence, namely airline tickets, hotel accommodation and a subsistence allowance. 468.Of the suggestion by Mr Fitzgerald that the prosecution had failed to explore the possibility of “financial compensation” to David Wiltshire, it is to be remembered that he was a witness of fact only. He was not an expert professional witness, to whom the prosecution does pay professional fees for the giving of expert evidence. In this jurisdiction, and in many other jurisdictions, witnesses of fact summoned to attend criminal trials are provided with modest witness expenses, but no more. Those witness expenses are a standard, identical amounts paid to each such witness. They are not tailored to the circumstances of the individual witness. Mr Fitzgerald did not draw to our attention any authorities in which witnesses of facts had been provided with “financial compensation” for giving evidence in this or any other jurisdiction. Conclusion 469.We are satisfied that the prosecution had done all that was reasonably required of it to seek to secure the attendance of David Wiltshire at trial in Hong Kong and that the judge was entitled to determine that she was sure that it was not reasonably practicable to secure his attendance in Hong Kong. The absence of cross-examination on behalf of the 3rd appellant 470.In her ruling of 17 March 2015, the judge noted that it had been submitted by Mr Khosa on behalf of the 3rd appellant that unfairness enured to the detriment of the 3rd appellant given the fact that David Wiltshire had not been cross‑examined on his behalf. She said that it was asserted that it was the 3rd appellant’s case that:[467]
471.Subsequently, the judge noted that reliance was placed by Mr Khosa on submissions made by Mr Douglas Kwok in the Preliminary Inquiry that “the truthfulness of figures given to Mark King must be proved as a fact. Mark King’s understanding of their truthfulness is quite another matter.” [468] Nevertheless, the judge went on to note:[469]
The evidence of Mark King in the Preliminary Inquiry 472.Of course, as noted earlier, by the time that David Wiltshire came to testify in New Zealand in October 2013, Mark King had already testified in the Preliminary Inquiry in Hong Kong. That happened in January 2013, when he was cross‑examined by Mr Douglas Kwok, on behalf of the 3rd appellant. Of that, the judge said:[470]
473.In cross-examination, Mark King said that in preparing financial statements for the CraFarms Group, he was required to try to ensure “that the correct position was being presented without full verification. He confirmed that he was not in possession of “underlying books or vouchers” to verify the electronic accounts.[471] 474.The issue of the sale of cattle, impliedly at an undervalue, by the CraFarms Group to relatives of the Crafar family was canvassed. Mark King said:[472]
475.Mark King went on to testify that the cattle had been sold at $2,000 each. That, of course, was a little above the price per cow described as the ‘Start price’ for 1 June 2008 in the “Dairy Cattle Account” for some of the farms in the Tab 11 accounts. The effect of his evidence was to reject any implied suggestion that the sale had been at an undervalue. The subsequent cross-examination of Mark King at the trial 476.Mark King gave evidence before the jury in January 2016, after the video recording of David Wiltshire’s evidence had been played and the exhibits adduced in that deposition put before the jury in December 2016. In the course of cross‑examination on behalf of the 3rd appellant, Mr Khosa made good his reassurances to the judge, at the hearing on 16 October 2015, that he was able to canvass matters that he needed to raise sufficiently in cross‑examination of Mark King, “… so that I don’t need Wiltshire.” Missing cattle 477.Of the respective ownership of cattle on the CraFarms Group farms, Mark King was cross‑examined about an attachment to an email which he had sent to David Wiltshire dated 13 June 2009 headed “Group livestock reconciliation, March 2009”. He said that the stock count had been performed on about 31 January 2009 by PGG Wrightson’s, an independent body. He said that of the approximately 30,000 cattle on the land, 19,893 were owned by the CraFarms Group. The others were owned by third parties.[473] The reconciliation showed them to be a combination of milk sharers and Stockco.[474] 478.Of the fact that the Taharua and Nugen farms were stipulated in the reconciliation document to have no cattle, Mark King explained:[475]
479.Of the discrepancies, in the figures stipulated in the Tab 11 accounts, of ‘Livestock on Hand’, having regard to the ‘Start’ and ‘End’ tallies and the various means by which the stock was increased and decreased, Mark King said that cows “did come in” to the farms:[476]
480.In her summing up, the judge said that the upshot of Mark King’s evidence was that “…it would be a better indicator if one were to look at the overall number of missing cattle for the six CraFarms Group companies rather than each company in isolation.” [477] 481.In cross-examination, Mark King confirmed that the raw data sent to him electronically by David Wiltshire, from which he had prepared the accounts in Tab 11, was in the same “off‑the‑shelf accounting package” format in which the data had been provided to him subsequently for the 12 months period to 31 May 2009.[478] He confirmed that apart from the material sent to him by email the underlying books, invoices and receipts were not sent to him. He agreed that he “would not be 100 percent sure” of the accuracy of the information sent to him.[479] Earlier, in his evidence‑in‑chief, he said that the financial statements of the six individual farms in the Tab 11 accounts were prepared from the data provided to him by David Wiltshire, with whom he liaised to get satisfactory answers, and were as accurate as he could make them.[480] Hiding profits 482.In cross-examination of Mark King, Mr Khosa raised with him the general issue of whether or not profits had been hidden in the accounts of the CraFarms Group. First, he did so in the context of an email reply, dated 22 June 2009, by Mark King to the 3rd appellant in which the latter had sought clarification of the description “subvention payment due under current liability” in the accounts for 2007 for Hillside.[481] In the email, Mark King had said that it was “A tax device to move the profit from Hillside Ltd to Plateau Farms Ltd.” Mark King accepted in his testimony that it was a device to save tax, which was allowable in New Zealand law.[482] 483.Subsequently, the following exchange ensued between Mr Khosa and Mark King:[483]
484.Finally, Mr Khosa canvassed with Mark King whether there was a policy within the CraFarms Group to maximise tax advantages by carrying across the Group losses:[484]
No unfairness to the 3rd appellant 485.Finally, the judge determined:[485]
Conclusion 486.We are satisfied that the judge was entitled to come to the conclusion, having paid careful attention to all the relevant circumstances, that she was satisfied that “no unfairness is likely to occur” in the trial consequent upon her determination admitting parts of the deposition of David Wiltshire, other than those parts in which he spoke to the production of the business records. The absence of expert evidence: gross profit for the year ended 31 May 2009 487.In the context of the prosecution case that the stipulation in the circular that the gross profit attributable to the Target Assets for the year ended 31 May 2009 was $92,520,000[486], and having regard to the 3rd appellant’s evidence that the related figures that he had provided to ShineWing were projected figures based on reasonable assumptions, Mr Fitzgerald submitted that the judge had erred in directing the jury:[487]
488.Mr Fitzgerald contended that first, it was necessary for the prosecution to establish that the figure was incorrect. Clearly, he was suggesting that evidence was required to establish the correct figure before it could be asserted that the figure advanced in the circular was incorrect. 489.There was no dispute at trial that the 3rd appellant had been provided with the CraFarms Group historical accounts by Mark King. Earlier, the judge had identified what she described as the “core issue”, arising from the evidence of the 3rd appellant namely:[488]
490.Of the prosecution case, the judge said:[489]
491.Of the defence case, the judge had said earlier:[490]
492.It was in the context of those directions, that the judge gave his direction that it was not material that there had been no expert evidence “…about how to assess the reasonableness of the changes… for you are not here to examine such reasonableness.” [491] 493.Then, the judge went on to emphasise, by repetition, the direction that she had given, which was entirely favourable to the defence:[492]
494.In the context of reminding the jury of the evidence of Reid Panaho, who had given evidence as an expert forensic accountant, the judge said that his opinion had been sought by ICAC to address the issue of:[493]
495.Of the position taken by the defence, the judge said:[494]
496.Next, the judge said:[495]
497.Then, the judge returned to what she had identified at the outset as the core issue, namely:[496]
498.As the judge reminded the jury, there was no dispute that there were differences between the figures in the accounts provided by Mark King to the 3rd appellant and the figures provided by him in the accounts supplied to ShineWing. Again, as the judge reminded the jury, the issue was whether or not the 3rd appellant was “playing with the figures”, so that the figures that he provided were “utterly false accounts”. Or, were the figures the result of the 3rd appellant making adjustments and producing projected accounts to ShineWing? Conclusion 499.In that context, we are satisfied that the judge’s direction was correct. It was not necessary for the prosecution to adduce evidence that the figure stipulated for the gross profit for the year ended 31 May 2009 of $92,520,000 was incorrect, in particular by establishing in evidence the ‘correct’ figure. As the judge had suggested to the jury rhetorically, the real issue was why there was a difference between the figures provided by the 3rd appellant to ShineWing compared with the figures provided to him by Mark King. The judge’s failure to give a good character direction in respect of the 3rd appellant 500.Mr Fitzgerald criticised the judge for failing to afford the 3rd appellant the benefit of a good character direction. He drew the Court’s attention to the fact that first, it was an admitted fact that:[497]
501.Further, the Singapore authorities regarded the 3rd appellant as a person with no criminal record and had issued a certificate to that effect for use in the trial.[498] 502.Mr Fitzgerald also relied on the 3rd appellant’s qualifications and employment record, emphasising the 3rd appellant’s evidence of having a hard‑earned reputation amongst the banks and financial institutions in New Zealand.[499] In those circumstances, Mr Fitzgerald submitted that, having regard to the fact that the 3rd appellant’s wrongdoing was historic and of a dissimilar nature, in light of the 3rd appellant’s positive evidence of how he had conducted his adult life, the judge was in error not to have afforded the 3rd appellant at least a qualified direction of good character, given that the 3rd appellant had no convictions for dishonesty. That was relevant to his credibility. 503.In support of his submissions Mr Fitzgerald relied on the judgments of the House of Lords in R v Aziz [500], the Court of Appeal of England and Wales in R v Gray [501] and the Court of Final Appeal in Tang Siu Man (No 2) v HKSAR.[502] The Court was invited to note that in his judgment in Tang Siu Man (No 2) v HKSAR Litton PJ noted that in practice both limbs of the good character direction were given by trial judges on mere absence of previous criminal convictions. He went on to say:[503]
504.At the outset it is necessary to give factual context to the issue. An admitted fact, dated 25 September 2015, was filed with the Court before the commencement of the trial stating that each of the three applicants “has no previous criminal convictions and is of clear record”. However, subsequently information came to light which prompted the prosecution to apply to the judge to withdraw their admission in respect of all three appellants. Oral argument ensued prior to the empanelling of the jury.[504] 505.In respect of the 3rd appellant, an old newspaper cutting had come to the knowledge of the prosecution indicating that, at the age of 18 years, he had “pleaded guilty” to three charges under the Singapore Penal Code and that a fourth charge was “taken into consideration”. According to the newspaper report, these offences involved “the use of force to restrain and molest four teenage girls” causing two of them “to lose their virginity”. Further, the 3rd appellant was sentenced to 3 years’ probation on account of his “paranoid illness”, which had been brought about by a prolonged period of stress at school. 506.In face of that article, the judge having raised the basis on which the admitted facts were advanced, counsel for the 3rd appellant, Mr Khosa, informed the judge that the 3rd appellant neither confirmed nor denied the truthfulness of its content. Mr Khosa said that the 3rd appellant had “no recollection” of those past incidents.[505] For her part, Ms Draycott described that position as “incredible.” [506] Whilst she accepted that Mr Khosa had acted on instructions, she said that the assertion previously made on behalf of the 3rd appellant that he had no previous criminal convictions was “dishonest” and “disingenuous” [507]. The judge reserved her ruling on the application and did likewise in respect of applications made in respect of the 1st and 2nd appellants. 507.In a written ruling, dated 15 January 2016, the judge allowed the prosecution to withdraw their admission in respect of the character of all three appellants [508]. Of the 3rd appellant, the judge said:[509]
508.At the conclusion of the 3rd appellant’s evidence, which represented the conclusion of the defence case, Mr Fitzgerald for the 1st appellant invited the judge to give a good character direction.[510] For his part, Mr Khosa for the 3rd appellant simply said that he had nothing to add to the submissions. 509.Then, the judge ruled:[511]
510.In Hong Kong the law in respect of the circumstances in which it is appropriate for a good character direction to be given to the benefit of a defendant to trial is set out in the judgment of the majority in the Court of Final Appeal in Tang Siu Man v HKSAR. In the judgment of the majority, given by Litton PJ, a comprehensive review of the authorities was conducted. Then, he articulated a series of conclusions, including:[512]
511.As noted above, in circumstances where the defendant has a criminal conviction, but it is for a minor offence(s) unrelated to the charge faced by the defendant at trial, a judge enjoys a wide margin of assessment in the exercise of her discretion in determining whether or not to give the defendant the benefit of a good character direction. Here, there was no dispute that the 3rd appellant’s conviction was for an offence unrelated to the offences of dishonesty alleged against him in the indictment. Whilst some judges might have been prepared to give the 3rd appellant a good character or partial good character direction, we cannot say that the judge erred in the exercise of her discretion in determining not to give the 3rd appellant the benefit of any direction in respect of good character. Unfair/unbalanced summing up 512.All three appellants submitted that the judge’s summing up was either unfair or unbalanced. The 1st appellant 513.For the 1st appellant, Ms Montgomery submitted that the judge’s summing up was unbalanced (Ground 4 of the 1st appellant’s grounds of appeal.) It should be noted, however, that Ms Montgomery did not specifically address this ground of appeal in her oral submissions, although some of the points made by this ground were referred to in her submissions on other grounds of appeal. The way she put the matter on the second day of her oral submissions was that it was “the overall impact of the fairness of the summing‑up” that should arouse this Court’s concern. However, she accepted, of the examples of imbalance particularised in this ground of appeal, that “one of these on their own, almost certainly would not be sufficient. All of them together in the context of the legal errors … identified render this an unstable conviction”. 514.We do not accept, when looked at as a whole at the end of a very long and complex trial, that the summing up was unbalanced. Bearing in mind that the 1st appellant (and for that matter, the 2nd appellant) did not give evidence before the jury as to their dealings and state of mind at relevant times, we consider that the judge more than adequately set out the respective cases of the parties and the evidence which related to them. She was entitled to make comments on that evidence, provided she made clear, as she frequently did, that all findings of fact were for the jury and the jury alone. As it was, any comments she did make were properly grounded and balanced. 515.We have already held in addressing the issue One conspiracy or two?, that this was not a case which called for a Kevin Brown direction, nor was it necessary for the jury to be told that at least two of the defendants had to agree on any one particular misrepresentation. Yet, these directions were given by the judge and, we assume, applied by the jury. Such directions can hardly be said to be unfair to the appellants. It will also be clear that we do not accept the alleged legal errors, which are said to provide the context for the particulars of alleged imbalance. 516.Although Ms Montgomery did not specifically address Ground 4 in her oral arguments, either during her main submissions or in reply, we do not accept the complaints she did make when she touched on matters identified in this ground during other parts of her oral arguments. One repeated criticism, for example, was that the judge failed to deal separately and properly with the issue of the 1st appellant’s subjective dishonesty (or lack of it). She argued that it was his case, notwithstanding, we must observe, that he did not give evidence on the matter, that “he had not understood the CSA had any continuing relevance” to the 462 acquisition. The judge’s direction on this matter was as follows [513]:
517.Contrary to Ms Montgomery’s contention, we regard this set of directions as unimpeachable and fairly setting out the respective issues as between the 1st appellant and the prosecution as to the 1st appellant’s state of mind concerning the CSA. Later, the judge, correctly in our view, put the issue of the 1st appellant’s purported understanding of the CSA fairly before the jury in these terms [514]:
518.Furthermore, no criticism is made of the judge’s general directions on dishonesty, which were set out at the beginning of her legal directions in her summing up.[515] The directions to which we have just referred concerning’s belief as to the non‑applicability of the CSA must also be seen, therefore, in the context of her impeccable general directions on dishonesty. 519.As an adjunct to the complaint about the way the judge directed the jury as to the 1st appellant’s state of mind concerning the CSA, Ms Montgomery also made particular criticism of the judge for advancing a theory derived from an email sent from the 1st appellant to Barry Fraser on 16 September 2009 [516], which appeared to suggest that he thought the CSA was still subsisting. The email, which the judge recited to the jury, reads as follows:
520.The judge then continued in respect of this matter [517]:
521.With respect, we do not accept that the judge should be criticised at all in respect of this direction. The email from the 1st appellant was before the jury and, regardless of whether the prosecution chose to make any point about its concluding sentence, it was there for the jury to read. The judge was entitled to comment, which she immediately balanced by advancing an explanation favourable to the 1st appellant. This was an approach she invariably adopted whenever she commented on the evidence. 522.Although Ms Montgomery did not specifically address Ground 4 in her oral submissions, she did, as we have just demonstrated, advert to certain complaints of imbalance in the course of advancing her other substantive grounds of appeal. Moreover, a number of matters cited in this ground have been dealt with in the context of other substantive grounds of appeal by the parties before us. Given the length of this judgment, and the fact that Ms Montgomery acknowledges that individually her complaints on imbalance would not unsettle the convictions, we do not intend to deal with each matter she raises, in a ground spanning some four pages of text, seriatim. 523.Suffice it to say that we do not accept that the summing up was unbalanced, or unfair or that the 1st appellant’s defence was not clearly and adequately placed before the jury. Despite the absence of his own evidence, the jury were fully and fairly directed as to his defence. There is no merit in this ground of appeal. The 2nd appellant 524.Under the same generic heading of unfair or unbalanced summing up, the judge is, as per Mr Winter’s Ground 9, criticised for failing to sum up certain matters to the jury. 525.Some of these matters, or assertions, such as that the representations concerned were true and Listing Rules-consistent (Ground 9(i) to 9(iii)), we have dealt with in other parts of this judgment. They very much determine the correctness or otherwise of the particulars of the charges in this case. As can be seen, our conclusions are such that the judge was absolved of any need to discuss them in her summing up. 526.What remains are the assorted points that make up the rest of the ground (Grounds 9(iv) to 9(vii)). They are, it is said, matters that could impact on the jury’s finding of whether there was any agreement to cause, or risk causing, economic loss to 462 by dishonest means, namely:
527.Next, as per his Ground 11, Mr Winter submits that the judge had failed to address the prejudicial effect of what the prosecution had said in its speeches. For example, the prosecution is alleged to have unfairly and without any evidential basis opened its case on the following premises:
Likewise, the prosecution is alleged to have wrongly accused Knight Coldicutt and ShineWine of complicity in the alleged frauds in its closing speech. 528.The prosecution is also said to have ignored the detail of the announcement and circular which, on a close reading, would explain: the limited basis of the financial information contained; the true reason behind the acquisition being the possible future value of the farms; and why the acquisition consideration and underwritten risk had ruled out for 462 any possible economic loss. 529.Under Ground 12, it is complained that the judge “spent the best part of two days summing up the prosecution case; failed to mention [the 2nd appellant’s] case; and then after the wholly exceptional intervention of defence leading counsel spent perhaps two minutes summing up [the 2nd appellant’s] case”. In particular, it is said that the judge should have but nevertheless failed to remind the jury that:
530.To the above grounds Mr Winter has seen fit not to lend any oral supplements. He was content to rely on his written skeleton arguments. To them all, however, we have given due consideration and are drawn to the following observations. 531.The amount of overlapping in these grounds is the first thing we notice. Repeatedly, the same points are rehearsed under the various guises of alleged unfairness by the judge and/or prosecution. Otiosity aside, this approach does little to focus one’s mind on the crucial question of whether some or all of these areas were central to the defence case. 532.Of the topics mentioned, the following are undoubtedly important, which is why they have been identified for separate discussion in different parts of this judgment, namely: Katherine Chan’s supposed involvement in UBFM’s purchase of the farms from their original owners; the concealment or otherwise of Tab 11 from 462’s accountants; the 2nd appellant informing ShineWine that the figures she provided would be projection‑based; and the way in which the Appendix II accounts were prepared, versus what was said about them in the circular. Significantly, we have found the defence assertions in these areas to be either questionable or that they had been left squarely with the jury, or both. 533.The same centrality or importance cannot be ascribed to the rest of the points, which the judge is now criticised for omitting to highlight to the jury. Take the question of 462’s underwritten risk cum payment by convertible notes only as an example. Even if what Mr Winter submits as to the financial mechanism of the deal is correct, it is still not an answer to the allegation of fraud as it was pleaded in the indictment. On the contrary, if 462’s share prices did go up, as they were no doubt expected to do immediately after the acquisition, the 2nd appellant would be in a position to cash in her shares and benefit from her and her co-conspirators’ scheme. 534.In short, while we appreciate that some benefit in the most general sense may be derived from matters that might show the 2nd appellant in a good light, such as that she had underwritten 462’s risk, we do not think the judge was obliged to refer to them in her summing up. In a case of this length and complexity, the presiding judge must be allowed considerable leeway as to what factual matters he or she may revisit; in order that the jury may be assisted, not confused. 535.On what the prosecution had said of the 1st and 2nd appellants’ past activities, the respondent is correct that the term “modus operandi” was never used [518]. The respondent is also correct that the prosecution’s remarks were based on Yip Kean-mun’s evidence, the 2nd prosecution witness whose line of work was to help clients to raise funds on the stock market, and who was approached by the 1st and 2nd appellants to do the same in a number of past but fruitless proposals.[519] This forms part of the background of the case and is not unduly prejudicial. 536.It was an admitted fact that the 2nd appellant was a bankrupt, and that she was subsequently convicted in New Zealand for leaving the country with intent to evade her liquidators. What is not accurate is that the prosecution had linked her bankruptcy to the way she had tried to make money, which was neither illegal nor uncommon. That is the conclusion we have reached after reading the prosecution’s opening.[520] We agree with the respondent that the financial situation of the 2nd appellant was relevant. 537.We do not agree that the prosecution had accused others not named in the indictment of fraud. What counsel said of Knight Coldicutt was that it had subjected itself to a conflict of interest, an observation that was supported by documentary evidence. Moreover, that observation was made in the course of censuring the 2nd appellant, not the New Zealand law firm, for lying about it in a subsequent SEHK enquiry.[521] The mention that Knight Coldicutt might have released NZ$51.6 million of escrow money without authorisation does not add weight to this complaint.[522] 538.Regarding ShineWine, all the impugned remarks are in relation to Andy Wong appellant .[523] However, what the prosecution said, or repeated of this witness’ evidence,[524] was that he had “let [the figures] through in a rush at the end”. “But it’s not up to Andy to police them”, counsel added. She said, “He doesn’t know how they have changed the accounts. He’s asked for an explanation. He’s been given one …… It’s not up to him to decide whether the answer is true. He’s not saying whether the figures they’ve produced were correct, he’s simply just saying that the answer seems fine to him. He doesn’t even know what the original figures were or the adjustment that were made.” One possible cause of this problem, counsel surmised, was that “Doris and William and Carl [had] either left ShineWine or [gone] on holiday or were taken off the project before it concluded, certainly before the question was ever answered.” Admittedly, the prosecution had more than once described Mr Wong as “extraordinary” and “defensive”, but that is a long way from saying that he was knowingly involved in the alleged frauds. 539.In sum, there is no merit in the generic ground of unfair and unbalanced summing up insofar as it concerns the 2nd appellant. The 3rd appellant 540.For the 3rd appellant, Mr Fitzgerald submitted that the judge had failed to give a fair and balanced summing up. The complaints were made, inter‑alia, in respect of her directions to the jury in respect of the evidence of Andy Wong, Doris Yiu and William Li and as to the significance of the fact that no expert evidence had been adduced of the “correct figures of the gross profits of the target assets” for 2009 were the subject of separate substantive grounds of appeal, which have been addressed at length earlier in this judgment. 541.The complaint that the judge failed to point out to the jury the significance of the evidence of Carl Kwok that “ShineWing team were in possession of the contact list of owners and staff of the New Zealand farms” was not particularised in any way whatsoever or made the subject of either oral or written submissions. Similarly, the generic complaint that the judge had failed “…generally to provide any adequate directions on the use the jury should make of the evidence which tended to undermine central tenets of the prosecution case” remained wholly unparticularised and unsupported by written or oral submissions. 542.In the submissions made to the judge at the end of the 3rd day of her summing up, a subsidiary matter raised by Mr Khosa was the evidence that ShineWing was in possession of a contact list of the CraFarms Group directors and employees, “I don’t know whether you wish to include the fact that because we have mentioned to the jury that Kevin ‑ about visiting the farms he said he didn’t have it, the fact that they were in possession of the contact list, although, my Lady, you did mention that they said they could have contacted Stretton’s if they wanted. I’ll leave that, my Lady, in your hands.” [525] 543.In his closing speech to the jury, Mr Khosa had reminded the jury of the undisputed evidence of Carl Kwok that there was an electronic record at ShineWing of contact numbers of the CraFarms Group Management team and Directors and the individual farm managers, which matched an attachment to an email sent by David Wiltshire to the 3rd appellant dated 12 June 2009. The short point that Mr Khosa made to the jury was that this illustrated that the 3rd appellant was being transparent with ShineWing.[526] 544.For her part, the judge did not remind the jury of that evidence. That is not surprising. It was a forensic point of little significance in the case overall. On the other hand, the judge did trouble to remind the jury of her earlier direction that they might wish “…to take account of the arguments presented to you by counsel when they addressed you in their closing speeches”.[527] 545.We are satisfied that that was an entirely appropriate way in which to deal with the matter. In a summing up, the judge is not required to repeat all the minute points made in speeches by counsel. It is the judge’s role to identify to the jury the issues and the evidence of significant relevant to those issues. 546.It beggars belief that this ground was advanced in support of the submission that the judge’s summing up was unbalanced and unfair. 547.We do not accept that the summing up was in any way unbalanced or unfair to the 3rd appellant. There is no merit in this ground of appeal. Count 3 548.Clearly, by their verdict in respect of Count 2, the jury was satisfied that the 1st appellant was a party to the conspiracy to defraud 462. There was no dispute that the 1st appellant dealt with the CN‑C monies, namely $73.7 million, which was a very large part of the $85,287,011 stipulated in the Particulars of Offence of Count 3. The issue was, as the judge directed the jury, if the jury found Count 2 proved against the 1st appellant, were they “…sure that Jack Chen indeed knowingly dealt with the CN‑C money, 73.7 million” [528], in particular that “at the time of the dealing he did know that such money was represented the proceeds of the 462 conspiracy”.[529] There was overwhelming evidence that was the case. Conclusion 549.Accordingly, for the reasons we have given, we refuse the applications for leave to appeal against conviction of the 1st and 2nd applicants, whom we may have described as the 1st and 2nd appellants in this judgment, and the renewed application for leave to appeal of the 3rd appellant. Finally, we dismiss the 3rd appellant’s appeal. Postscript 550.Before concluding this very lengthy judgment, we wish to pay tribute to the judge’s conduct of the trial in the lower court. In the period prior to trial, August 2014 to October 2015, the judge was called upon to conduct multiple interlocutory pre‑trial hearings, in consequence of which she gave many rulings. The trial itself lasted 107 days and was conducted in the period from 2 November 2015 to 6 June 2016. It is clear, from the very extensive transcript available to this Court, that throughout those proceedings the judge sought to require the parties to focus on the real issues arising in the case. She was a model of judicial impartiality. 551.The observations that differently constituted divisions of this Court made in the recent judgments in HKSAR v Wiwik Lestari [530] and HKSAR v Tse Hin Yeung [531]are apposite to the conduct of this appeal. In the former case, the Court said:[532]
552.Practice Direction-4.2 ‘Criminal Appeals to the Court of Appeal’ stipulates:
553.In HKSAR v Tse Hin Yeung, this Court reiterated its concern “…about a prevailing culture among certain appeal counsel of averring that there was an unfair and unbalanced summing up almost as a matter of routine in any set of grounds of appeal against conviction, regardless of its merits”.[534] 554.Regrettably, the concerns of this Court expressed in those judgments resonate with the multitude of grounds of appeal advanced on behalf of each of the three appellants. It is all the more regrettable where appellants have had, as in this case, the advantage of being represented by leading counsel, who are expected to focus and distill arguments and bring discipline to grounds of appeal so that they and the Court can concentrate on the real and important issues on appeal, instead of swamping the Court with inconsequential argument and material that serves to obfuscate and distract and ultimately risk defeating that objective. We saw little evidence of focus, distillation and discipline from the appellants’ leading counsel in this case. With great respect, this Court expects better of leading counsel. Given our views about the way the arguments were handled in this case, it is hardly surprising that this appeal took an astonishing 10 days to complete.
Ms Charlotte Draycott, SC, Counsel on fiat and Ms Joycelyn Ng, SPP (Ag) (18 – 21, 24 – 25, 28 and 31 July 2017), of the Department of Justice, for the respondent. Ms Clare Montgomery, QC, Mr Benson Tsoi (18 – 21 and 24 – 26 July 2017) and Ms Adela Mao (27 - 28 and 31 July 2017), instructed by Boase, Cohen & Collins, for the 1st applicant. Mr Ian Winter, QC, Mr Graham Harris, SC, Mr Lee Shu Wun and Ms Emily Yu, instructed by Haldanes, for the 2nd applicant. Mr Edward Fitzgerald, QC, Mr David Khosa and Miss Yasmine Zahir, instructed by Hobson & Ma, for the 3rd appellant. Annex A The application of the 2nd appellant to adduce evidence in the appeal 1. On 28 July 2017, at the conclusion of the address of Ms Draycott for the respondent and before the replies of the appellants, the Court refused to receive evidence, which came from unused material, sought to be adduced by Mr Winter on behalf of the 2nd appellant, pursuant to section 83 V of the Criminal Procedure Ordinance, Cap. 221. 2. The application came to be made in the following circumstances. In the course of his submissions on 19 July 2017, Mr Winter took the court to contemporaneous documentation, including emails, adduced into evidence at the trial which he submitted undermine the credibility of Katherine Chan (PW1), in particular that she had been told and that she believed that the 2nd appellant was the owner of the farms to be acquired by 462. He said that, on the contrary, this evidence demonstrated that “462, PW1, working together with D1 and D2, together acquired the farms into D2’s companies.” He submitted that emails between various parties in respect of the engagement of Knight Coldicutt as lawyers to act for 462 in the acquisition of the farms supported the contention that Katherine Chan and 462 knew that Knight Coldicutt was also acting for the 2nd appellant in her purchase of the farms. He submitted that in those circumstances it was clear to Katherine Chan and 462 that the 2nd appellant did not own the farms. 3. Mr Winter acknowledged that the emails on which he now relies, whilst available to those representing the 2nd appellant at trial, had not been used in cross‑examination of Katherine Chan. Indeed, it was not suggested to Katherine Chan on behalf of the 2nd appellant that she knew that Knight Coldicutt was acting for both 462 and the 2nd appellant in the acquisition of the farms. 4. On the other hand, the issue of whether or not that was the case had been canvassed in cross-examination on behalf of the 1st appellant. Moreover, Katherine Chan had been cross‑examined on some of the very emails on which Mr Winter now sought to rely.[535] In that exchange of emails, which was sent to multiple parties including the 2nd appellant, in an email dated 11 May 2009 Kerry Knight expressed his thanks for instructions that he had received and said “We will send an engagement letter tomorrow.” In an email reply to the multiple parties, dated 13 May 2009, Katherine Chan informed Kerry Knight that she had given instructions to her staff to wire US$10,000 to him as a retainer and that “the signed engagement letter will be emailed to you tomorrow.” In respect of the engagement letter, Mr Winter said:
5. In the late afternoon of the hearing on 25 July 2017, Mr Winter informed the Court that those representing the 2nd appellant had been able to find a copy of the Engagement letter, a copy of which was provided to the Court, de bene esse. There was no dispute that at the trial all the parties had been provided with a soft copy of the Index of Unused Materials, which copy was searchable. Further, that item 112 was described as “A black ring folder marked “Knight Coldicutt Engagement Letter”, 48 pages.” Also, that it was described as one of 29 items found and seized in “CWK/office”. 6. After the Court had risen on the afternoon on 26 July 2017, those representing the 2nd defendant filed with the Court a Notice of Motion seeking leave to adduce in the appeal five pieces of documentary evidence. They were identified as having come from material identified in the List of Unused Material, at item number 112. First and foremost, was a letter dated 12 May 2009 from Knight Coldicutt to Navin Agarwal K & L Gates, as solicitors to 462, under the title: “ENGAGEMENT OF KNIGHT COLDICUTT AS LEGAL ADVISERS”. The text stated, inter‑alia, that Knight Coldicutt were to act as New Zealand counsel for 462 “providing advice on the proposed acquisition of 10 New Zealand dairy farms in consultation with your Hong Kong Counsel (K & L Gates).” It noted that the “specific structure for the acquisition is still to be worked through”. Attached to the letter was a signed confirmation by Katherine Chan on behalf of 462, dated 13 May 2009, agreeing to “the terms of this letter and Knight Coldicutt’s Terms & Conditions of Engagement.” 7. In an affidavit filed with the Court on 26 July 2017, Mr Andrew Powner deposed that the other four sets of document “relate to the same issue” and were found in the unused material. He said that “trial counsel have no recollection of having seen these materials either in their preparation for trial or in the course of the trial itself ”. Mr Graham Harris, SC, Mr Lee Shu Wun and Ms Emily Yu, who appeared for the 2nd appellant in the appeal also appeared for her at trial. 8. Mr Powner submitted that the documents were relevant to three issues. First, whether there was a conflict of interest on the part of Kerry Knight of Knight Coldicutt in allegedly acting for Ms Katherine Chan, 462 as well as the 2nd appellant in the sale and purchase agreement, dated 22 May 2009, between 462 and the 2nd appellant’s company, UBNZ Assets Holding Ltd. Secondly, in respect of the issue of whether or not the 2nd appellant had lied in her email of 18 December 2009 to Katherine Chan in which she had asserted that “When UBNZ funds Management Limited entered into sales and purchase agreements with all existing farm owners, Knight Coldicutt was not the legal representative for UBNZ nor after Knight Coldicutt engaged by listco‑Natural Dairy.” Also, in respect of the validity of the statement in the email from Kerry Knight to 462 and K & L Gates Ltd in which it was asserted “Our fee arrangement makes it very clear that we are acting for you but do have the right to work with UBNZ Funds Management Limited in relation to the purchase and acquisition of the farms to ensure that the right assets are in the target company” at the time 462 purchases its shareholding. Thirdly, in respect of the issue of whether Katherine Chan had been told and believed that the 2nd appellant owned the farms or had acquired a right to buy the farms, for which she had paid a deposit of $50 million. 9. In a 2nd affidavit of Mr Andrew Powner filed with the Court on 28 July 2017, the Court was advised that, following an examination by trial counsel of “… all previous emails and notes obtained from the trial”, the letter of engagement had been “located in the trial notes and it was discovered that it had been reviewed by trial counsel during the trial.” Nevertheless, counsel continued to assert that they had no recollection of having seen the other four sets of documents it was sought to adduce on behalf of the 2nd appellant. Of a sixth document, an email from Kerry Knight to Katherine Chan dated 26 October 2009, which it was said that the respondent wished to adduce into evidence, it was asserted that trial counsel had no recollection of the document. 10. For her part, Ms Draycott submitted that no reasonable excuse had been forthcoming for the failure to adduce the evidence at trial. Nevertheless, she submitted that the Court ought to deal with the matter on its merits. She contended that the evidence would make no difference to the resolution of the grounds of appeal advanced on behalf of the 2nd appellant. 11. In those circumstances, although Mr Winter persisted in his application that the material be adduced into evidence in the appeal, he made no submissions as to whether or not there had been a reasonable explanation for the failure to adduce the evidence at trial. He submitted only that it was in the “interests of justice” that the material be adduced into evidence before this Court. 12. Section 83 V provides that:
13. In his judgment in this Court in The Queen v Tam Chung Shing & Others Silke VP considered the relationship between the two subsections:[536]
Conclusion 14. It is clear that those representing the 2nd appellant at trial were not only fully aware of the existence of the letter of Engagement, dated 12 May 2009, but also were possessed of a copy of the letter. It was described accurately and succinctly in the List of Unused Material and, no doubt, came into the possession of the defence as a result of inspection of unused material. That inspection would have afforded the defence an opportunity to inspect all the documents at item 112 of the List of Unused Material. So, it follows that the material now sought to be adduced into evidence in the appeal was available to the defence at trial, but not deployed in evidence. In context, it is to be remembered that counsel for the 1st appellant had cross‑examined Katherine Chan on the chain of emails, dated 11 to 13 May 2009, in which reference was made to the letter of Engagement. Clearly, that would have served to alert those representing the 2nd appellant that they were possessed of the letter of Engagement. 15. Understandably, in all those circumstances, Mr Winter has not even sought to argue that there was a reasonable excuse for not adducing the evidence at trial. If the evidence had been adduced at trial, the Court would have the benefit of the testimony of Katherine Chan responding to such suggestions as might have been made to her as to what was to be inferred from that material as to her knowledge of the role played by Knight Coldicutt in the acquisition of the farms for the 2nd appellant. Conclusion 16. We are satisfied that there was no reasonable excuse for the failure to adduce the evidence at trial. The fact that the evidence now sought to be adduced in the appeal was not adduced in the trial has all the hallmarks of a tactical decision made by those representing the 2nd appellant at trial. The appeal process is not to be used as the vehicle to seek to adduce into evidence material available, but deliberately not used, at trial to support submissions not made at trial but now advanced in the appeal. In all the circumstances we are not satisfied that it is in the interests of justice to receive the evidence sought to be adduced before this Court. Annex B The application of the 3rd appellant to adduce evidence in the appeal 1. On 28 July 2017, during the hearing of the 3rd appellant’s appeal, the Court ruled that it declined to allow the 3rd appellant to adduce fresh evidence at that hearing in respect of the circumstances in which he had not attended or being represented at the hearings in New Zealand in October 2013 at which David Wiltshire had made his deposition, which was adduced into evidence at the trial. We said that we would give our reasons in due course. That, we do now. 2. It is to be noted, that the single judge had declined to allow the 3rd appellant to adduce some of that evidence at the hearing of the application for leave to appeal against conviction and sentence.[537] 3. The evidence sought to be adduced at the hearing of the appeal was identified in two Notices of Motion, dated 29 June and 3 July 2017 respectively. It comprised two affirmations of the 3rd appellant, filed with the Court on 17 and 27 March 2017, together with attached exhibits; a letter from the 3rd appellant’s former solicitors, Hobson and Ma, dated 31 March 2017; a letter from the 3rd appellant’s former counsel, Mr Douglas Kwok, dated 1 April 2017; and an affirmation of Wong Yin Shun, a partner of Hobson and Ma, filed with the Court on 3 July 2017, together with attached exhibits. 4. Broadly speaking, the proposed evidence addressed two issues, namely the 3rd appellant’s alleged impecuniosity and his alleged understanding of the use that could be made of the deposition of David Wiltshire, in particular as to whether or not it was necessary for him to be called as a witness again at the trial. 5. Those two issues were issues that were canvassed with Pang J in pre-trial applications to exclude the deposition of David Wiltshire at trial. As a result, the judge received written submissions and lengthy oral submissions at hearings held on 3 to 6 February 2015, after which she gave a ruling on 17 March 2015. There followed further hearings on 23 and 27 July 2015, after which she gave a further ruling on 11 August 2015. Finally, the judge received further submissions on 2 October 2015, after which she gave a ruling on that day, followed by reasons for that ruling delivered on 6 October 2015. 6. For her part, Ms Draycott opposed the admission of the evidence. She submitted that no cogent reason was advanced as to why it was not adduced before the trial judge. Further, in respect of the fresh evidence as to impecuniosity she submitted that it was not credible and would not afford a ground to allow the appeal. 7. On 5 February 2015, in the course of his submissions to Pang J to exclude the deposition of David Wiltshire in the prospective trial, Mr Khosa addressed the circumstances in which the 3rd appellant had not participated in the proceedings in New Zealand:[538]
8. Reliance was placed by counsel on the 3rd appellant’s letter to the Department of Justice dated 27 August 2013 [539], in which he asserted that, having made enquiries of both the Duty Lawyer scheme and the Legal Aid Department, he had been informed that the former had no mandate to attend the proceedings in New Zealand and that assistance from the latter was only available after a trial date in Hong Kong had been fixed. The 3rd appellant asserted “On conclusion, a rough estimation this financial contribution that I would seeking is approximate to NZ$50,000 or more equivalent to at least HK$300,000 or more.” Having asserted that he had been paid a limited salary by 462 of only $40,000 per month for the year 2012/2013, that he was making payments to the Inland Revenue Department in respect of a total of $553,125 due to them and that he had credit card debts of over $200,000 the 3rd appellant asserted:[540]
9. In consequence, the 3rd appellant sought a payment in advance to his solicitors “for above specific disbursement such as New Zealand barrister, airfares, hotel payments.” [541] 10. As the single judge noted in his ruling declining to allow the 3rd appellant to adduce fresh evidence at the hearing of the application for leave to appeal against conviction and sentence, Ms Draycott made it clear in the hearing on 5 February 2015 that she did not accept Mr Khosa’s assertion of the advice of the 3rd appellant counsel that the witnesses who made depositions in New Zealand had to be called as witnesses at the trial. She said that claim had to be substantiated by evidence not mere assertions from the Bar table.[542] As the judge noted in her ruling of 17 March 2015 “in the end… no evidence was placed before me by Mr Khosa regarding the claim he made in court.” [543] 11. As far as the alleged impecuniosity of the 3rd appellant was concerned, Ms Draycott acknowledged to Pang J of the 3rd appellant that “it’s absolutely clear that his funds are limited”.[544] On the other hand, she invited the judge to note that, following the taking of depositions from witnesses in New Zealand in October 2013, the appellant had been represented by lawyers in the Preliminary Inquiry for 14 days.[545] 12. On 17 March 2015, the judge ruled that the “…documents in question produced by Wiltshire are the business records of the CraFarms Group” [546] were admissible as such. In doing so, she said that the court was not required “to consider the “no unfairness” requirement specified in section 77 F(1)(d)” of the Evidence Ordinance, Cap. 8.[547] However, in addressing Mr Khosa’s submission that she should exercise her discretion to exclude that otherwise admissible evidence, the judge said:[548]
13. In the course of her consideration of that issue, the judge said:[549]
14. Of the “other parts of the deposition”, having stated that she was not satisfied on the evidence adduced at that stage that it was “not reasonably practicable to secure Wiltshire’s attendance in Hong Kong”, the judge said:[550]
15. In referring to the submissions made on behalf of the 3rd appellant in respect of his impecuniosity before and at the time that the depositions were taken in New Zealand in October 2013 as “the suggested shortage of funds” the judge made it clear that she did not accept without more the assertions made by the 3rd appellant in correspondence and by his counsel before the judge. Clearly, the 3rd appellant was put on notice of that determination. 16. Given that the judge did not address the provisions of section 77 F(1)(d) of the Evidence Ordinance, namely that she was required to be satisfied that “no unfairness is likely to occur in those criminal proceedings consequent upon the deposition and any document… being admitted in evidence under this section” until 2 October 2015, the 3rd appellant had fully six months in which to seek to adduce evidence to substantiate before the judge the assertions as to his impecuniosity. The 3rd appellant did not seek to adduce before the judge any of the evidence he now seeks to adduce before this Court. 17. There were substantive hearings on 23 and 27 July 2013 before the judge made her ruling on 11 August 2015.[551] In those hearings objection was taken on behalf of the 1st appellant, but supported by counsel for the 2nd and 3rd appellants, to the admissibility to two parts of David Wiltshire’s evidence, namely in respect of the English speaking ability of the 1st appellant and David Wiltshire’s testimony in which “he sought to compare the figures he provided to Mark King and those appearing in the circular” of 462. In the result, the judge ruled in favour of those objections and excluded those parts of the evidence of David Wiltshire. 18. The short hearing before the judge on 2 October 2015 afforded the 3rd appellant a final opportunity to seek to adduce the evidence now sought to be adduced in this court. No application was made. In her reasons for ruling, dated 6 October 2015, the judge finally addressed the provisions of section 77 F(1)(d) of the Evidence Ordinance in respect of the admissibility of the deposition of David Wiltshire:[552]
19. We are satisfied that no reasonable explanation has been advanced by the 3rd appellant for his failure to adduce before the judge the evidence that it is sought to adduce in this court that goes to the issue of his impecuniosity. Similarly, we are satisfied that no reasonable explanation has been advanced for the failure to adduce evidence before the judge that it is sought to adduce in this court which goes to the issue of the 3rd appellant’s understanding of the use that could be made of David Wiltshire’s deposition, in particular whether or not it could be adduced in evidence in the trial, or as to any advice given to him by counsel as to the issue of the fatal procedural irregularity in the New Zealand deposition taking proceedings. Furthermore, we are satisfied that the “interests of justice” do not require the Court to accede to the application to adduce the evidence in the appeal. As Silke VP observed in the judgment of this Court in The Queen v Tam Chung Shing “…there must be some curb on the reception of fresh evidence to avoid the indefinite prolongation of the legal process.” [553] 20. Accordingly, we refused the application. [1] Appeal Bundle F 6: tab 1, pages 1-100. [2] Appeal Bundle F 6: tab 1, pages 25-37. [3] Appeal Bundle F 4: tab 1, page 3, paragraph 5.2(2). [4] Appeal Bundle 1: tab 3; page XIII, paragraph 15. [5] Appeal Bundle F 4: tabs 6-11, pages 127-285. [6] Appeal Bundle F 4: tab 2, pages 12-41. [7] Appeal Bundle F 4: tab 8, pages 55-288. [8] Appeal Bundle F 4: tab 9, page 54 b. [9] Appeal Bundle F 4: tab 2, page 14. [10] Appeal Bundle F 4: tab 10, page 100. [11] Appeal Bundle F 4: tab 4, pages 45-6. [12] Appeal Bundle F 4: tab 5, pages 47-8. [13] Appeal Bundle F 4: tab 5, pages 49-50. [14] Appeal Bundle 1: tab 3; page XIX, paragraph 67. [15] Appeal Bundle 1: tab 3; page XXI, paragraph 82. [16] Appeal Bundle 1: tab 3; page XXII, paragraph 84. [17] Appeal Bundle 1: tab 3; page XXII, paragraph 86. [18] Appeal Bundle 1: tab 3; page XXIII, paragraph 88. [19] Appeal Bundle 1: tab 3; page XXV, paragraph 105. [20] Appeal Bundle 1: tab 3; page XI, paragraph 2. [21] Appeal Bundle 1: tab 3; page XXV, paragraph 105. [22] Appeal Bundle 1: tab 3; page XXV, paragraph 106. [23] Appeal Bundle 1: tab 3; page XXIV, paragraph 95. [24] Appeal Bundle 1: tab 3; page XXVI, paragraph 107. [25] Appeal Bundle F 6: tab 5, pages 124-6. [26] Appeal Bundle F 6: tab 4, pages 121-3. [27] Appeal Bundle E 1: tab 549. [28] Appeal Bundle F 1: tab 1, pages 1-3. [29] Appeal Bundle 1: tab 3; page XVIII, paragraph 63. [30] Summing up, page 69 A-E. [31] Appeal Bundle F 1: tab 11. [32] Appeal Bundle J 1: tab 6 (exhibit D3-6) and tab 9 (exhibit D3-9). [33] Summing up, page 168 G-K. [34] That submission was also the subject of Ground 6. [35] See Ground 4. [36] Gerakiteys v The Queen [1983-1984] 153 CLR 317. [37] Ibid., at 327. [38] R v K [2005] 1 Cr App R 25. [39] R v K [2005] Crim L R 298. [40] Ibid., at 300. [41] R v Brown (Kevin) [1984] 79 Cr App R 115. [42] R v Bennett (Sharon) unrep., 6 May 1999 (CA). [43] The reference from the 2005 Edition of Archbold should be to sections 34-44, not 34-42 as stated in the commentary to R v K in the Criminal Law Review. Its more recent iteration to take account of the decision in R v K appears at sections 33-49 of the 2017 Edition of Archbold. [44] R v Hancock [1996] 2 Cr App R 554. [45] Summing up, page 59 M-U. [46] Summing up, page 180 G-O. [47] Paragraph 89 infra. [48] Appeal Bundle, page 284. [49] Appeal Bundle, pages 55 T-56 U. [50] Summing up, page 62 E-I. [51] R v Fussell [1997] Crim L R 812. [52] R v K [2005] 1 Cr App R 25, at paragraphs 26 and 27. [53] R v K [2005] Crim L R 298, at 301. [54] R v K [2005] 1 Cr App R 25, at paragraph 35; R v K [2005] Crim L R 298, at 300. [55] R v K [2005] 1 Cr App R25, at paragraph 35. [56] R v K [2005] 1 Cr App R 25, at paragraph 26. [57] Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386. [58] Ibid., at paragraph 40. [59] Ibid., at 391-393 ‘Cases in List of Authorities not cited in the judgment’. [60] Ibid., at paragraph 43. [61] R v Bennett (Unreported, 6 May 1999, CA.) [62] R v K and Others [2005] 1 Cr App R 25, at para 30. [63] At paragraphs 33-49. [64] At paragraphs 33-10. [65] Appeal Bundle, page 284. [66] Appeal Bundle, pages 65 T-66 H. [67] Appeal Bundle, page 11 Q-T. [68] Appeal Bundle F 1: Tab 14. [69] Appeal Bundle F 1: Tab 16. [70] Appeal Bundle F 1: Tab 22. [71] Appeal Bundle F 1: Tab 36. [72] Appeal Bundle F 1: Tab 39. [73] Appeal Bundle F 2: Tab 42. [74] Appeal Bundle F 2: Tab 43. [75] Appeal Bundle F 2: Tab 70. [76] Appeal Bundle J 3: tab 92. [77] On the contrary, in cross-examination, the 3rd appellant testified that the 2nd appellant had asked him on one occasion to copy the documents, including the unfinished draft accounts, in order to show the 1st appellant that they “were keeping up with the progress: Transcript Day 91, page 82, line 23 - page 83, line 17. However, he also accepted in cross-examination that he had sent the “Armageddon email” on “my own initiation” or “on my own intent”: Transcript Day 90, page 160, lines 17-18; and Day 91, page 86, lines 2‑7, respectively. [78] Appeal Bundle J 1: Tab 29. [79] Appeal Bundle C: Transcript; Day 55, page 96, lines 12-19. [80] Appeal Bundle C 8: Transcript; Day 88, page 165, lines 14-16. [81] Appeal Bundle C 3: Transcript; Day 29, page 32, line 10. [82] Appeal Bundle C 3: Transcript; Day 29, page 33, lines 14-16. [83] Appeal Bundle C 3: Transcript; Day 29, page 33, lines 17-23. [84] Summing up, page 145 B-H. [85] Appeal Bundle J 3: tab 98, pages 746-750. [86] Appeal Bundle J 3: tab 98, pages 747-748. [87] Summing up, Appeal Bundle, page 246 K-R. [88] Appeal Bundle J 3: tab 99, pages 751-771. [89] Appeal Bundle C 8; Day 89, page 49, lines 22-76, line 11. [90] Paragraph 57 supra. [91] Summing up, page 62 F-H. [92] R v Griffiths [1966] 1 QB 589, at 599. [93] Summing up, pages 56 S-57 H. [94] Board of Trade v Owen [1957] AC 602. [95] Ibid, at 622 [96] Welham v DPP [1961] AC 103. [97] Ibid., at 125. [98] R v Toshack (1849) 4 Cox CC 38; 1 Den CC 492. [99] Welham v DPP [1961] AC 103, at 125. [100] Wai Yu-tsang v The Queen [1992] 1 AC 269, at 280. [101] R v Allsop [1976] 64 Cr App R 29. [102] Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386, at paragraph 61. [103] Listing Rule 13.52(2). [104] Summing up, page 187 I-K. “Now, for a VSA, a very substantial acquisition, the stock exchange would pre-vet such an announcement before it was published. However, the stock exchange did not have any ways to confirm the truth of the contents.” Summing up, page 189: Listing Rule 14 A.11-connected person. “The stock exchange had to rely on the listed company to provide the information so that a decision could be made.” [105] Appeal Bundle K: tab 9, pages 77-82. [106] Appeal Bundle K: tab 9, pages 78-79, paragraph 6. [107] Appeal Bundle K: tab 10, page 91. Transcript; Day 58, page 34. [108] See Midland Bank Trust Company v Hett Stubbs & Kemp [1979] 1 Ch 384 at 402. [109] Bundle K: tab 11, pages 102-105, paragraphs 18-30. [110] Summing up, page 47 Q-U. [111] Summing up, page 48 I-L. [112] Appeal Bundle F 1: tab 11, pages 42-111. [113] Appeal Bundle B: Transcript; Day 3, page 32. [114] Appeal Bundle J 3: tab 88, pages 674-684. [115] Appeal Bundle F 2: tabs 55-61, pages 343-396. [116] Summing up, page 147 G-N. [117] Summing up, pages 147 P-148 E. [118] Appeal Bundle C 3: Transcript; Day 29, page 65. [119] Appeal Bundle C 3: Transcript; Day 29, page 66. [120] Appeal Bundle C 3: Transcript; Day 30, page 4. [121] Appeal Bundle C 3: Transcript; Day 30, page 75. [122] Appeal Bundle C 3: Transcript; Day 30, pages 75-76. [123] Appeal Bundle C 3: Transcript; Day 31, pages 58-59. [124] Summing up, page 150 D. [125] Appeal Bundle C 3: Transcript; Day 30, pages 49-50. [126] Summing up, page 150 F-I. Appeal Bundle J 3: tab 88, pages 674-684. [127] Summing up, pages 149 S-150 A. [128] Summing up, page 149 K-O. [129] Summing up, page 150 A-B. [130] Appeal Bundle C 6: Transcript; Day 63, pages 82-83. [131] Appeal Bundle C 6: Transcript; Day 63, pages 90-91. [132] Appeal Bundle F 1: tab 21, page 133. [133] Appeal Bundle F 1: tab 21, page 132. [134] Appeal Bundle F 1: tab 24, page 139. [135] Appeal Bundle F 1: tab 38, page 185. [136] Appeal Bundle C 5: Transcript; Day 55, page 104. [137] Appeal Bundle C 5: Transcript; Day 55, page 105. [138] Appeal Bundle J 3: tab 92. [139] Summing up, page 231 O. [140] Summing up, page 233 D-G. [141] Appeal Bundle F 1: tab 13. [142] Appeal Bundle F 1: tab 13, page 112. [143] Appeal Bundle F 1: tab 16. [144] Summing up, page 228 M-O. [145] Appeal Bundle F 1: tab 16, page 122. [146] Appeal Bundle F 1: tab 11, page 43. [147] Appeal Bundle F 1: tab 20, page 131. [148] Appeal Bundle F 1: tab 25. [149] Appeal Bundle F 1: tab 25, page 140. [150] Summing up, page 235 K-N. [151] Appeal Bundle F 1: tab 35. [152] Appeal Bundle F 1: tab 35, page 170. [153] Summing up, page 148 E-G. [154] Summing up, page 148 G-Q. [155] Appeal Bundle C 3: Transcript; Day 31, page 89. [156] Appeal Bundle C 3: Transcript; Day 31, pages 72-73. [157] Appeal Bundle C 3: Transcript; Day 31, page 74. [158] Appeal Bundle F 1: tab 11, page 47. [159] Appeal Bundle C 3: Transcript; Day 31, page 77. [160] Appeal Bundle F 2: tab 60, page 388. [161] Appeal Bundle C 3: Transcript; Day 31, page 82. [162] Appeal Bundle C 3: Transcript; Day 31, page 78. [163] Appeal Bundle C 3: Transcript; Day 31, page 79. [164] Appeal Bundle C 3: Transcript; Day 31, page 80. [165] Appeal Bundle C 3: Transcript; Day 31, page 82. [166] Appeal Bundle C 3: Transcript; Day 31, page 84. [167] Appeal Bundle C 3: Transcript; Day 31, page 86. [168] Appeal Bundle C 3: Transcript; Day 32, page 18. [169] Appeal Bundle C 3: Transcript; Day 32, page 23. [170] Summing up, pages 148 R-149 E. [171] Appeal Bundle C 3: Transcript; Day 32, page 47. [172] Appeal Bundle C 3: Transcript; Day 32, page 72. [173] Summing up, page 149 F-H. [174] Appeal Bundle J 2: tab 38, page 399. Appeal Bundle C 3: Transcript; Day 32, page 38. [175] Appeal Bundle J 2: tab 38, page 403. [176] Appeal Bundle F 1: tab 11, page 111. [177] Appeal Bundle C 3: Transcript; Day 32, page 46. [178] Appeal Bundle C 3: Transcript; Day 32, page 47. [179] Appeal Bundle J 2: tab 38, page 402. [180] Appeal Bundle F 2: tab 58, page 376. [181] Appeal Bundle C 3: Transcript; Day 32, page 50. [182] Summing up, pages 254 U-256 L. [183] Summing up, page 259 K-Q. [184] Summing up, pages 259 Q-260 C. [185] Summing up, page 257 R-U. [186] Appeal Bundle C 3: Transcript; Day 32, page 37. [187] Summing up, page 254 A-C. [188] Summing up, pages 263 M-264 C. [189] Summing up, page 234 K-R. [190] Summing up, pages 234 S-235 F. [191] Summing up, pages 19 S-20 B. [192] Summing up, pages 21 O-22 E. [193] Summing up, page 19 A-G. [194] Appeal Bundle F 4: tab 10, page 202. [195] Appeal Bundle F 4: tab 10, page 203. [196] Appeal Bundle F 4: tab 10, page 204. [197] Appeal Bundle F 4: tab 10, page 205. [198] Appeal Bundle F 1: tab 11, pages 42-111. [199] Appeal Bundle N: tab 11. [200] Transcript (Livenote, but not included in the Appeal Bundle); 7 March 2016 (Day 74) pages 45-46. [201] Summing up, page 12 I-L. [202] Summing up, page 12 Q-U. [203] Summing up, pages 13 Q-14 B. [204] Summing up, pages 187 Q-188 I. [205] Summing up, page 159 D-H. [206] Summing up, page 158 E-G. [207] Summing up, page 160 K-N. [208] Summing up, page 160 R-U. [209] Summing up, page 161 R-S. [210] Summing up, page 162 K-L. Appeal Bundle J 1: tab 6, exhibit D3-6. [211] Summing up, page 162 M-O. Appeal Bundle J 1: tab 9, exhibit D3-9. [212] Summing up, page 163 D-G. [213] Summing up, page 163 L-M [214] Summing up, page 164 B-G. [215] Summing up, page 167 H-R. [216] Summing up, page 168 G-K. [217] Appeal Bundle F 3: tab 95, page 736. [218] Appeal Bundle F 3: tab 96, page 742. [219] Appeal Bundle F 3: tab 96, page 742. [220] Summing up, page 169 S-U. [221] Summing up, page 170 B-D. [222] Summing up, page 170 F-K. [223] Summing up, page 170 K-O. [224] Summing up, page 174 Q-U. [225] Summing up, page 174 U-175 K. [226] Summing up, page 175 M-T. [227] Summing up, page 166 D-G. [228] Summing up, page 239 G-L. [229] Appeal Bundle C 5: Transcript; Day 46, page 106. [230] Appeal Bundle F 3: tab 91, pages 687-717. [231] Appeal Bundle F 3: tab 95, pages 736-741. [232] Appeal Bundle F 3: tab 96, page 742. [233] Appeal Bundle C 5: Transcript; Day 54, page 74. [234] Appeal Bundle F 3: tab 97, pages 744-5. [235] Appeal Bundle F 3: tab 97 (a). [236] Appeal Bundle F 3: tab 97 (a). [237] Appeal Bundle F 3: tab 97 (c). [238] Appeal Bundle F 3: tab 98 (a). [239] Appeal Bundle F 3: tab 98 (b). [240] Appeal Bundle F 3: tab 98 (a). [241] Summing up, page 36 D-K. [242] Summing up, page 36 M-T. [243] Summing up, pages 179 M-180 G. [244] Summing up, page 179 F-J. [245] Summing up, pages 226 T-227 A. [246] Appeal Bundle J 1: tab 6. [247] Summing up, pages 162 A-163 G. [248] Summing up, pages 230 T-231 A. [249] Summing up, pages 233 U-234 D. [250] Summing up, page 236 N-O. [251] Summing up, page 236 Q-T. [252] Summing up, page 237 G-H. [253] Summing up, page 245 N-R. [254] Summing up, page 239 A-C. [255] Summing up, page 239 G-L. [256] Summing up, page 262 M-Q. [257] Appeal Bundle F 6: tab 1. [258] Summing up, page 83 O-R. [259] 462’s lawyers. [260] Appeal Bundle F 1: tab 6. [261] Appeal Bundle F 1: tab 6. [262] Appeal Bundle F 1: tab 6. [263] Appeal Bundle F 1: tab 1a. [264] Appeal Bundle F 1: tab 6. [265] Appeal Bundle F 1: tab 6. [266] Appeal Bundle F 1: tab 6. [267] Appeal Bundle C 7; Transcript; Day 81, page 78, line 20 - page 79, line 19: the 3rd appellant’s examination-in-chief. [268] Appeal Bundle J 1: tab 3. [269] Appeal Bundle F 1: tab 10. [270] Appeal Bundle F 1: tab 10. [271] Appeal Bundle J 1: tab 6, exhibit D3-6 [272] Appeal Bundle J 1: tab 9, exhibit D3-9. [273] Appeal Bundle F 1: tab 11. [274] Appeal Bundle J 1: tab 9. [275] Appeal Bundle J 1: tab 9. [276] Appeal Bundle J 1: tab 9. [277] Appeal Bundle C 7; Transcript; Day 81, pages 22-24 and 63-64. [278] Appeal Bundle F 1: tab 7. [279] Appeal Bundle J 3: tab 92. [280] Appeal Bundle C 7; Transcript; Day 82, page 72, line 18: the 3rd appellant’s examination-in-chief. [281] Appeal Bundle C 7; Transcript; Day 82, page 64, line 13: the 3rd appellant’s examination-in-chief. [282] Appeal Bundle F 1: tab 13. [283] See, for example Appeal Bundle F 1: tab 14: Kevin Cheng’s email to 462’s Company Secretary, Kim Chan dated 16 June 2009: “For your information, certain management accounts and books and records for the 10 months ended 31 March 2009 are still outstanding …” [284] Appeal Bundle F 1: tab 14. [285] Appeal Bundle F 1: tab 16. [286] Appeal Bundle F 1: tab 17. [287] Appeal Bundle F 1: tab 20. [288] Appeal Bundle F 1: tab 21. [289] Appeal Bundle F 1: tab 24. [290] Appeal Bundle F 1: tab 25. [291] Appeal Bundle F 1: tab 11, page 43. [292] Appeal Bundle F 1: tab 25, page 141. [293] Appeal Bundle F 1: tab 11, page 43. [294] See Appeal Bundle F 1: tab 35: the 3rd appellant’s email to the 2nd appellant dated 24 June 2009. [295] Appeal Bundle F 1: tab 36. [296] Appeal Bundle F 1: tab 37. [297] Appeal Bundle F 1: tab 39. [298] Appeal Bundle F 2: tabs 56-61; and Kevin Cheng’s examination-in-chief: Appeal Bundle, Transcript; Day 46, page 76. [299] Appeal Bundle F 2: tab 43. [300] Appeal Bundle F 2: tabs 44-45; 47-50. [301] Appeal Bundle F 2: tab 47, page 250. [302] Appeal Bundle F 2: tab 50, page 266. [303] Appeal Bundle F 2: tab 51, page 299. [304] Appeal Bundle F 2: tab 51, page 301. [305] Appeal Bundle F 2: tabs 55-61. [306] Appeal Bundle F 2: tab 62. [307] Appeal Bundle F 2: tab 65. [308] Appeal Bundle F 2: tab 70. [309] Appeal Bundle F 2: tabs 72-75. [310] Appeal Bundle F 2: tab 74. [311] Appeal Bundle F 3: tab 85. [312] Appeal Bundle F 3: tab 87. [313] Appeal Bundle F 3: tab 88. [314] Appeal Bundle F 3: tab 89. [315] Appeal Bundle F 3: tab 92, page 719. [316] Appeal Bundle F 3: tab 92, pages 718-719. [317] Appeal Bundle F3: tab 96, page 742. [318] Appeal Bundle C 7: Transcript; Day 87, page 90, line 22 - page 91, line 9. [319] Supra, paragraphs 220-233. [320] Summing up, pages 174 U-175 A. [321] Summing up, page 10 N-Q. [322] Summing up, page 250 F-J. [323] Appeal Bundle B: tab 4; Transcript; Day 98, page 84. [324] Appeal Bundle B: tab 4; Transcript; Day 98, page 88. [325] Appeal Bundle B: tab 4; Transcript; Day 98, page 91. [326] Summing up, page 262 B-K. [327] Summing up, page 271 G-T. [328] HKSAR v Cheng Chee Tock Theodore (No 2) (2016) 19 HKCFAR 86. [329] Ibid., at paragraph 13. [330] Ibid., at paragraph 14. [331] Appeal Bundle F 4: tab 4. [332] Appeal Bundle F 4: tab 5, an undated letter from A1; and tab 6, a letter dated 19 August 2009 from A2. [333] Summing up, page 32 L-U. [334] Summing up, page 12 A-H. [335] Summing up, page 76 A-I. [336] Appeal Bundle F 6: tab 4, pages 121-123. [337] Appeal Bundle F 6: tab 5, signed on 3 October 2008. [338] Summing up, pages 119 L-120 O. [339] This was a slip of the tongue by the judge. The date of the signing of the CSA was 8 October 2008. [340] Appeal Bundle C 6; Transcript; Day 60, page 50, line 17 - page 52, line 4. [341] Appeal Bundle C 6; Transcript; Day 60, page 51, line 16. [342] Summing up, page 195 A-P. [343] No attachment was adduced in evidence. [344] Appeal Bundle F 5: tabs 39/39 A. [345] Appeal Bundle C 1: Transcript; Day 6, page 5. [346] Appeal Bundle C 1: Transcript; Day 6, pages 18-19. [347] Appeal Bundle C 1: Transcript; Day 6, pages 32-34. [348] Appeal Bundle C 1; Transcript; Day 6, pages 76-77. [349] Appeal Bundle C 1: Transcript; Day 6, pages 76-77. [350] Appeal Bundle C 1: Transcript; Day 9, pages 47-48. [351] Appeal Bundle C 1: Transcript; Day 10, page 133. [352] Appeal Bundle C 1: Transcript; Day 10, page 134. [353] Appeal Bundle C 1: Transcript; Day 10, page 133. [354] Appeal Bundle C 1: Transcript; Day 11, page 35. [355] Appeal Bundle C 1: Transcript; Day 11, pages 79-80. [356] Appeal Bundle C 1: Transcript; Day 6, pages 78-79. [357] Appeal Bundle C 1: Transcript; Day 6, pages 51-52. [358] Appeal Bundle F 4: tab 12 a, pages 346-347. [359] Appeal Bundle F 4: tab 12 a, page 346. [360] Appeal Bundle F 4: tab 12 b, page 352. [361] Appeal Bundle H: tabs 6 and 7, pages 20-24. [362] Appeal Bundle F 5: tab 39. [363] Appeal Bundle H: tab 6, page 21. [364] Appeal Bundle H: tab 6, page 20. [365] Appeal Bundle H: tab 7, page 23. [366] Appeal Bundle C 1: Transcript; Day 10, page 101. [367] Appeal Bundle B: tab 4: Transcript; Day 98, pages 60-73. [368] Appeal Bundle B: tab 4: Transcript; Day 98, page 65. [369] Appeal Bundle B: tab 4: Transcript; Day 98, page 68. [370] Summing up, page 72 I-L. [371] Summing up, page 73 S-T. [372] Summing up, page 73 J-L. [373] Summing up; page 73 N-R. [374] Summing up, page 85 H-M. [375] Summing up, page 250. [376] Summing up, page 261 Q-T. [377] Appeal Bundle F 4: tab 1, page 10. [378] Summing up, page 16 K. [379] Summing up, page 22 F. [380] Summing up, page 86 B-F. [381] “(d) in the case of any other deposition, the court is satisfied that any document (if any) exhibited or annexed thereto is the original thereof, or a copy thereof made by any photographic process, and that, having regard to the following matters- (i) whether it is reasonably practicable to secure the attendance of the deponent, taking into account for that purpose his bodily or mental condition or the delay or expense likely to be caused in securing his attendance; (ii) whether the deponent was cross-examined before such court or tribunal; and (iii) any other matter which, in the circumstances appears to the court to be relevant, no unfairness is likely to occur in those criminal proceedings consequent upon the deposition and any document (if any) exhibited or annexed thereto being admitted in evidence under this section.” [382] Appeal Bundle N: tab 5, paragraph 70. [383] Appeal Bundle O 1: tab 1, pages 165 U-166 B. [384] Appeal Bundle B: tab 6, page 3 O. [385] Appeal Bundle B: tab 7, page 73 F-H. [386] Appeal Bundle B: tab 7, page 73 S-U. [387] Appeal Bundle B: tab 7, page 76 D-F. [388] Appeal Bundle N: tab 10, paragraphs 13-15. [389] Appeal Bundle N: tab 5, paragraph 146. [390] Appeal Bundle N: tab 5, paragraph 122. [391] Appeal Bundle N: tab 5, paragraph 124. [392] Appeal Bundle N: tab 5, paragraph 127. [393] Appeal Bundle N: tab 5, paragraph 128. [394] Appeal Bundle D 2: Transcript, page 157. [395] Appeal Bundle N: tab 5, paragraph 129. [396] Appeal Bundle N: tab 5, paragraph 132. [397] Appeal Bundle N: tab 5, paragraph 139. [398] Appeal Bundle N: tab 5, paragraph 146. [399] Appeal Bundle N: tab 5, paragraph 154. [400] Appeal Bundle N: tab 5, paragraph 153. [401] Appeal Bundle F : tab 11; Exhibits 596 and 644 - 15 June 2009. Appeal Bundle F 1: tabs 40 and 41; Exhibits 640 and 641 - 26 June 2009. Appeal Bundle F 1: tab 34; Exhibits 642 - 24 June 2009. [402] Appeal Bundle G 1: tab 34. Exhibits 563 and 564. [403] Appeal Bundle D 2, page 211. [404] Exhibits 589 A and 589 C. [405] Appeal Bundle F 6: tab 5. Exhibit 550. [406] Appeal Bundle D 2, page 162. [407] Appeal Bundle E 1: tab 549. Exhibit 549. [408] Appeal Bundle F 6: tabs 6-11. Exhibits 519-521; and 524-526 - 18 May 2009. [409] Appeal Bundle D 2, page 157. [410] Appeal Bundle D 2, page 233. [411] Appeal Bundle D 2, page 196. [412] Appeal Bundle N: tab 5, paragraph 153. [413] Appeal Bundle N: tab 7, paragraph 49. [414] Appeal Bundle N: tab 7, paragraph 50. [415] Appeal Bundle N: tab 7, paragraph 51. [416] Appeal Bundle O 1; page 171 J-N. [417] Appeal Bundle N: tab 5, paragraph 62. [418] Appeal Bundle N: tab 5, paragraph 63. [419] Appeal Bundle N: tab 5, paragraph 63. [420] Appeal Bundle N: tab 5, paragraph 67. [421] Appeal Bundle N: tab 5, paragraph 67. [422] Appeal Bundle N: tab 5, paragraph 69. [423] Appeal Bundle N: tab 5, paragraph 70. [424] Appeal Bundle N: tab 5, paragraph 133. [425] Appeal Bundle N: tab 5, paragraph 137. [426] Appeal Bundle N: tab 5, paragraph 137. [427] Appeal Bundle N: tab 5, paragraph 64. [428] Appeal Bundle N: tab 5, paragraph 67. [429] Appeal Bundle N: tab 5, paragraph 63. [430] Appeal Bundle N: tab 4, pages 17-19. [431] Appeal Bundle N: tab 4, page 18. [432] Appeal Bundle N: tab 4, page 18. [433] Appeal Bundle N: tab 4, pages 16-16 a. [434] Appeal Bundle O 1, page 195 D. [435] Appeal Bundle N: tab 4, pages 20-25. [436] Appeal Bundle N: tab 4, page 26. [437] Appeal Bundle O 1: tab 1, page 196. [438] Appeal Bundle N: tab 5, paragraph 149. [439] Caterpillar Inc. v John Deere Ltd. (No 2) (2000) 181 ALR 108. [440] Caterpillar Inc. v John Deere Ltd, paragraph 19. [441] Appeal Bundle N: tab 5, paragraphs 87-88. [442] Appeal Bundle N: tab 5, paragraph 78. [443] Appeal Bundle N: tab 6, page 93. [444] Appeal Bundle N: tab 5, paragraph 147. [445] Appeal Bundle N: tab 5, paragraph 149. [446] Appeal Bundle N: tab 5, paragraph 150. [447] Appeal Bundle N: tab 5, paragraph 151. [448] Appeal Bundle N: tab 5, paragraph 152. [449] Appeal Bundle N: tab 5, paragraph 153. [450] Appeal Bundle N: tab 7, paragraph 40. [451] Appeal Bundle N: tab 7, paragraph 42. [452] Appeal Bundle N: tab 7, paragraph 45. [453] Appeal Bundle N: tab 7, paragraph 47. [454] Appeal Bundle N: tab 8, paragraph 6. (Reasons for Ruling: 6 October 2015.) [455] Appeal Bundle N: tab 8, paragraph 3. [456] Appeal Bundle N: tab 8, paragraph 7. [457] Appeal Bundle O 3: tab 33, page 614 at paragraph 9.19. [458] Appeal Bundle N: tab 8, paragraph 8. [459] Appeal Bundle N: tab 8, paragraph 9. [460] Appeal Bundle N: tab 8, paragraph 10. [461] Appeal Bundle D 2, page 236. [462] Appeal Bundle N: tab 8, paragraph 11. [463] Caterpillar Inc. v John Deere Ltd,paragraph 17. [464] Caterpillar Inc. v John Deere Ltd,paragraph 19. [465] Caterpillar Inc. v John Deere Ltd,paragraph 25. [466] Caterpillar Inc. v John Deere Ltd,paragraph 26. [467] Appeal Bundle N: tab 5, paragraph 127. [468] Appeal Bundle N: tab 5, paragraph 140. [469] Appeal Bundle N: tab 5, paragraph 141. [470] Appeal Bundle N: tab 5, paragraph 142. [471] Committal Bundle: Transcript; 24 January 2013, page 2. [472] Committal Bundle: Transcript; 24 January 2013, page 4 I-J. [473] Appeal Bundle C 3: tab 7 - Transcript; Day 34, pages 19-20. [474] Appeal Bundle J 2: tab 40. Exhibit D3-40. [475] Appeal Bundle C 3: tab 7 - Transcript; Day 34, page 38. [476] Appeal Bundle C 3: tab 7 - Transcript; Day 34, page 91. [477] Summing up, page 184 N-P. [478] Appeal Bundle F 1: tab 11, pages 111(1)-(18). [479] Appeal Bundle C 3: tab 7 - Transcript; Day 34, page 3. [480] Appeal Bundle C 3: tab 7 - Transcript; Day 33, pages 14-15. [481] Appeal Bundle J 2: tab 49. [482] Appeal Bundle C 3: tab 7 - Transcript; Day 36, page 2. [483] Appeal Bundle C 3: tab 7 - Transcript; Day 36, pages 32-33. [484] Appeal Bundle C 3: tab 7 - Transcript; Day 36, pages 44-45. [485] Appeal Bundle N: tab 8, paragraphs 12-13. [486] Appeal Bundle F 4: tab 10, page 202. [487] Summing up, page 13 N-Q. [488] Summing up, page 12 I-N. [489] Summing up, page 13 A-H. [490] Summing up, page 12 Q-U. [491] Summing up, page 13 O-Q. [492] Summing up, pages 13 Q-14 B. [493] Summing up, page 135 H-L. [494] Summing up, pages 135 N-136 E. [495] Summing up, page 136 N-P. [496] Summing up, page 139 D-L. [497] Appeal Bundle; page XXXIV, paragraph 4. [498] Appeal Bundle M: tab 1, page 1. [499] Appeal Bundle C 7; Transcript; Day 82, pages 62 - 65. [500] R v Aziz [1996] 1 AC 41, at page 53 D-F. [501] R v Gray [2004] 2 Cr App R 498, at paragraphs 57; and 59-63. [502] Tang Siu Man (No 2) v HKSAR [1998] 1 HKLRD 350. [503] Ibid, page 368 I. [504] Appeal Bundle Q: tab 5, pages 48-83. [505] Appeal Bundle Q: tab 5; Transcript 30 October 2015, page 66 M. [506] Appeal Bundle Q: tab 5; Transcript 30 October 2015, page 69 U. [507] Appeal Bundle Q: tab 5; Transcript 30 October 2015, page 70 H - J. [508] Appeal Bundle K: tab 16, pages 208-220. [509] Appeal Bundle K: tab 16, pages 212 and 215-216. [510] Transcript (Livenote, but not included in the Appeal Bundle): 11 April 2016; Day 94, pages 124-131. [511] Transcript (Livenote, but not included in the Appeal Bundle): 11 April 2016; Day 94, page 131. [512] Tang Siu Man (No 2) v HKSAR,page 368 C-G. [513] Summing up, pages 119 D-121 B. [514] Summing up, page 195 J-N. [515] Appeal Bundle, page 61 B-T. [516] Appeal Bundle E 1: tab 544. [517] Summing up, pages 128 F-129 Q. [518] Appeal Bundle B: tab 1; Transcript Day 2, pages 47 – 48. [519] Appeal Bundle C: tab 2; Transcript Day 15, pages 1 – 11. [520] Appeal Bundle B: tab 1; Transcript Day 2, pages 46 – 47 and 58. [521] Appeal Bundle B: tab 1; Transcript Day 2, page 90 (Opening). Appeal Bundle B: tab 2; Transcript Day 95, pages 7 – 8 (Closing). [522] Appeal Bundle B: Tab 2; Transcript Day 95, page 46 (Closing). [523] Appeal Bundle B: Tab 2; Transcript Day 96, pages 45 & 52. [524] Appeal Bundle B: Tab 2; Transcript Day 96, pages 44 – 53. [525] Summing up, pages 256 T-257 B. [526] Appeal Bundle B: tab 5; Transcript Day 101, page 54. [527] Summing up, page 263 D-E. [528] Summing up, page 70 B-D. [529] Summing up, page 69 I-J. [530] HKSAR v Wiwik Lestari (CACC 227/2016; unreported, 27 March 2018). [531] HKSAR v Tse Hin Yeung (CACC 185/2017; unreported, 29 March 2018). [532] HKSAR v Wiwik Lestari, paragraph 107. [533] Paragraph 114 of the Code of Conduct of the Bar of the HKSAR. [534] HKSAR v Tse Hin Yeung, paragraph 20. [535] Appeal Bundle C1:Transcript; Day 10, pages 98-103. Exhibits H (1): tabs 6 and 7: emails dated 11-13 May 2009. [536] The Queen v Tam Chung Shing [1989] 1 HKLR 42, at 47 G-I. [537] Ruling: Hon Lunn VP, 9 May 2017. [538] Appeal Bundle O 1, page 171 J-N. [539] Appeal Bundle N: tab 4, pages 17-19. [540] Appeal Bundle N: tab 4, page 18. [541] Appeal Bundle N: tab 4, page 18. [542] 9 May 2017 ruling, paragraph 18. [543] Appeal Bundle N: tab 5, paragraph 62. [544] Appeal Bundle O 1: tab1, page 195 D. [545] Appeal Bundle O 1: tab1, page 196. [546] Appeal Bundle N: tab 5, paragraphs 128 and 154. [547] Appeal Bundle N: tab 5, paragraph 132. [548] Appeal Bundle N: tab 5, paragraph 146. [549] Appeal Bundle N: tab 5, paragraph 137. [550] Appeal Bundle N: tab 5, paragraph 153. [551] Appeal Bundle N: tab 7. [552] Appeal Bundle N: tab 8, paragraph 12. [553] The Queen v Tam Chung Shing [1989] 1 HKLR 47 I. |
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