HKSAR v. Ewan Quayle Launder
Read the full judgment text of CACC 147/2000 on BabelCite. This Court of Appeal judgment was delivered on 19 March 2001.
1. On 25 March 2000, following a trial before Lugar-Mawson J, the Applicant was convicted by a jury of accepting an advantage in the sum of $4,500,000, contrary to section 9(1)(b) of the Prevention of Bribery Ordinance, Cap. 201 (the Ordinance). This was the first of thirteen counts in the indictment faced by the Applicant. The Applicant was acquitted on the remaining twelve counts, all of which also alleged offences contrary to section 9(1)(b) of the Ordinance. On 7 April 2000, the Applicant wa
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CACC000147/2000 CACC 147/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 147 OF 2000 (ON APPEAL FROM HCCC 212 OF 1998) ______________
______________ Coram: Hon Stuart-Moore and Mayo VPP and Seagroatt J Dates of Hearing: 13-16 February 2001 Date of Judgment: 19 March 2001 _______________ J U D G M E N T _______________ Stuart-Moore V-P delivering the judgment of the Court: Background 1. On 25 March 2000, following a trial before Lugar-Mawson J, the Applicant was convicted by a jury of accepting an advantage in the sum of $4,500,000, contrary to section 9(1)(b) of the Prevention of Bribery Ordinance, Cap. 201 (the Ordinance). This was the first of thirteen counts in the indictment faced by the Applicant. The Applicant was acquitted on the remaining twelve counts, all of which also alleged offences contrary to section 9(1)(b) of the Ordinance. On 7 April 2000, the Applicant was sentenced to serve five years' imprisonment. He now seeks the leave of this court to appeal against his conviction. His application relating to sentence was not pursued and was accordingly dismissed. 2. The particulars of count one were as follows:
3. Nine substantive grounds (including ground 1A which was added by amendment to the perfected grounds of appeal) have been advanced on the Applicant's behalf. In order to deal with these properly, it is necessary to go into the general nature of the prosecution's allegations. We are grateful to Mr Bernard Ryan, appearing on behalf of the Respondent, for the synopsis with which he has provided the court. Prosecution's case 4. In 1973, the Applicant was employed as a managing director of Wardley Limited (Wardley) which was then the merchant banking subsidiary of the Hongkong and Shanghai Bank. In January, 1980, he became Chief Executive of Wardley. The Applicant was one of the board of directors and he was a member of the credit committee which consisted of senior personnel of Wardley who would meet regularly to consider applications from customers for loans and other financial services. He dealt also with underwriting proposals. 5. It is apparent that the Applicant had considerable influence and control over the granting of loans because he was a point of contact between Wardley and its major clients. One such client was George Tan Soon-gin (Tan). He controlled a group of companies which we shall, for convenience, refer to as 'Carrian'. Two other clients in this category were Chung Ching-man (Chung) and his wife, Pak Choi-wah (Pak), who controlled a group of companies it is convenient to refer to as EDA. Carrian and EDA were both granted substantial loans by Wardley between 1979 and 1982. The Applicant was involved in granting these loans. The EDA and Carrian groups went into liquidation in 1982 and 1983 respectively. 6. The prosecution's case, on the thirteen counts before the jury, was that between October 1980 and June 1982, while he was Chief Executive of Wardley, the Applicant received $43,950,000 in the form of corrupt payments in connection with the loans given by Wardley to Carrian and EDA. More precisely, the allegation was that he had received those payments from or on behalf of Tan, who controlled the Carrian group, or alternatively from Chung and Pak, who controlled the EDA group. In this connection, the Applicant began to deposit substantial amounts of money into an account in the name of Honeywell Investment Centre (Honeywell) held at a newly registered deposit-taking company named Impact Finance Limited (Impact). Honeywell was incorporated in 1976 in Panama. In 1979, the Applicant took control of Honeywell by acquiring the only two shares which had been issued. 7. The prosecution alleged that the corrupt payments were made soon after or at about the time Wardley granted new loans or re-negotiated existing loans or provided other financial services to the Carrian and EDA companies. In some cases, the alleged bribe monies were said to have come from the bank accounts of relatives of Tan so that the source of the payments would be disguised. In other examples, Pak and Chung made arrangements for cashier orders to be paid. The allegedly corrupt payments were deposited into Honeywell's account with Impact for investment. There were several types of uses to which the Honeywell funds were put, including investment in internal interest deposits at Impact, the withdrawal of cash by the Applicant, and the forwarding of monies, on the Applicant's instructions, to his personal bank accounts in London or to companies or persons associated with himself, or to be held in trust by his lawyers in Switzerland. 8. When Carrian and EDA began to fail in mid 1982, the Applicant gave instructions that Honeywell would withdraw its money from Hong Kong. The Applicant left Hong Kong in about August, 1983, having been transferred to the London office of Wardley. Thereafter, Impact ceased to take further deposits in respect of the Honeywell account. 9. The broad basis of the prosecution's case in respect of all the charges was that the payments which found their way into the Honeywell account had been made to the Applicant and were accepted by him, as bribes. More particularly, these bribes were referred to as "general sweeteners" for the Applicant in some way to show favour to the companies controlled by the persons who were in reality making the payments. The acceptance of the alleged advantages by the Applicant was said to have been in relation to Wardley's affairs or business. 10. It was the prosecution's case that, for the charges to be proved, it was unnecessary to show that anything more specific was agreed upon or that the Applicant actually did anything to earn these general sweeteners. The central issue in the case was concerned with the Applicant's state of mind when he accepted the alleged advantages. 11. The Applicant was arrested at London's Heathrow Airport on 10 September 1993 on an extradition warrant. It was not until 14 April 1998 that the Applicant was brought back to Hong Kong to be tried, having vigorously contested extradition in the English courts. Defence case 12. The Applicant did not give evidence and no witnesses as to the facts were called on his behalf. The case for the defence was presented on the basis that the payments which were made to the Applicant had been made by persons who wished him to invest the money on their behalf. Mr King, who now appears as junior counsel to Mr McCoy, SC, on behalf of the Respondent, represented the Applicant in the court below. He suggested on the Applicant's behalf that none of the payments were corrupt and he laid emphasis on the fact that the prosecution had been unable to call any evidence of a favour having actually been shown by the Applicant to Tan or Chung and Pak. Grounds of appeal 13. Against this background, we can turn to the nine grounds of appeal before us. Although Mr McCoy advanced these in an order which was different to the written form, we consider it to be more convenient to return to the order of the grounds as finally set out in the 'further amended perfected grounds of appeal'. Ground 1: Inconsistent verdicts 14. The first ground amounted to a complaint that the guilty verdict on count 1 was inconsistent with the verdicts of not guilty on all the remaining counts, when neither the prosecution nor the judge had put forward anything which was capable of making any real distinction between count one and the remaining counts. 15. Superficially at least, bearing in mind the overall nature of the case against the Applicant which we have set out already, there was much in common between the prosecution's allegations on all the counts in the indictment. However, this was not a case where the jury was invited by the prosecution or directed by the judge necessarily to return the same verdict in respect of each and every count. On the contrary, the prosecution in its closing address invited the jury to consider each count separately and the judge directed the jury that they must look at each count separately before returning a verdict in respect of each one. More precisely, the judge directed the jury:
16. The summing up extended into a second day and shortly before the jury retired to consider its verdicts they were again reminded of their duty to consider each of the counts separately. In our view this was a proper direction to have given, bearing in mind that the offences were spread over a period of almost two years and that inevitably there were variations in the evidence relating to each count. 17. The events relating to the first count, alleging the acceptance of an advantage on or about the 11th October 1980, came after Wardley had advanced two loans to Tan's companies, in February and September 1980 respectively, amounting in total to what Mr McCoy informed us was an equivalent sum to just over $150,000,000 in local currency terms. 18. Count 1 was unique in a number of ways. Primarily, it was the manner in which the Applicant handed over the cash and cheques to a Mr Thomas Bate (PW5) for payment into the Honeywell account at Impact which gave this transaction its unique quality. At that time, PW5 was Impact's general manager. The judge's summary of the evidence relating to this count, was in these terms:
19. The evidence about the meeting on 11 October 1980, which lasted about half an hour, revealed that it had taken place at about 10:00 a.m. and that it was by prior arrangement. 20. The second unique feature related to the Applicant's conversation with PW5 about the ten cheques, each in the sum of HK$250,000, which were passed across the table and which had been left blank as to date and the payee's name. It was PW5 who wrote the date and payee, Impact Finance Limited, onto each of the cheques in the Applicant's presence and at his suggestion. The highly significant feature about this was that the Applicant stated he did not want his handwriting to appear on the cheques. This could only have added weight to the furtive nature of this transaction which was taking place in a coffee shop between a very senior banker on the one hand and the general manager of a newly registered deposit-taking company on the other. Curiously, neither the judge nor the prosecution seem to have made much of this point, although the jury were fully entitled to have taken this evidence into account in their deliberations. 21. Thirdly, this incident was the only time when the Applicant was directly and physically involved in the transfer of funds to Impact for the credit of the Honeywell account. 22. Fourthly, this was the only occasion on any of the counts when a sum in actual cash was transferred to Impact. 23. Looking at the other counts, so far as counts 2 to 4 and 6 and 8 were concerned, the source of the receipts into the Honeywell account with Impact could be traced back to George Tan, Inland Realty (an EDA company) or Chung and Pak of EDA. All of these funds emanated from cheques or cashier orders. In counts 5, 7 and 9 to 13, cash which was withdrawn from the accounts of Tan or Carrian corresponded with cash deposits to accounts of persons associated with Tan who then deposited cheques or cashier orders with Impact to be credited to the Honeywell account. 24. It is unnecessary in this judgment to review the current state of the law relating to this court's approach to inconsistent verdicts. It is a well established principle of law that a conviction will only be quashed on the ground of its inconsistency with other verdicts if an applicant is able to demonstrate that the jury's conclusion was one which no reasonable jury, which had properly applied their minds to the facts, could have reached: R v Durante (1972) 56 Cr App R 708. This approach was adopted by the Court of Appeal in Hong Kong in R v Cheng Man-to (1987) 2 HKC 261. 25. No doubt the jury, mindful of the evidence of the Applicant's personal involvement in count 1, coupled with evidence which they obviously and understandably viewed as a manifestation of conduct from which they could infer outright guilt, decided that the Applicant's guilt had been established. On any view, the Applicant's behaviour in relation to the cash he passed under the table to PW5, and his unwillingness to put his handwriting on the cheques which were passed over the table, was conduct which could hardly be said to have been consistent with an honest banker. In such circumstances it then became a matter for the jury to decide whether an irresistible interference could be drawn that these were bribe monies which the Applicant was investing. 26. It was, in the context of this ground, also submitted by Mr McCoy that the judge had fallen into a number of serious errors in the course of his summing up which may have contributed to what he alleged was an inconsistent verdict. In particular, he argued that the evidence relating to count one was never properly summed up. This, and other criticisms, are the subject of separate grounds of appeal and these will be dealt with when we address grounds 1A, 2, 3 and 7. 27. Notwithstanding this, we have already dealt with the way in which the judge summarised the facts relating to count one. It is apparent from this that it provided an adequate and fair summary of the allegation so far as the events which took place on 11 October 1980 at, and just after, the meeting in the Hyatt Hotel between the Applicant and PW5. The judge could certainly have said more and, in particular, as we have said, he might well have highlighted the evidence to the effect that the Applicant had said he did not want his handwriting to appear on the cheques which had been the subject of a somewhat muted challenge during the trial. Midway through the summing up, the judge did, however, draw together a number of the points made by the prosecution on count 1 by reminding the jury of what prosecuting counsel had said in his first speech. We shall deal with this in full when we turn to ground 3. 28. In our opinion, for the reasons we have given, where the circumstances were so glaringly different and cogent on this count, we consider that no inconsistency between this verdict and the verdicts on the other counts has been revealed. 29. Ground 1, accordingly, fails. Ground 1A: The section 9(1)(b) offence 30. Turning next to ground 1A, Mr McCoy submitted that the jury had been misdirected in relation to one of the elements particularised in count 1 which was common to all the counts on the indictment. Mr McCoy contended that the judge, contrary to the way in which the counts had been drawn, had directed the jury that a conviction could be returned if "favour" had been shown in the past, namely before the Applicant's acceptance of the alleged advantage, whereas the particulars in each count in fact only permitted the jury to consider "favour" in a present or future context, either on acceptance of the advantage or after its acceptance. The argument focused on the allegation in count 1 (set out in full earlier in this judgment) that the Applicant "accepted .... an advantage .... as an inducement to or reward for or otherwise on account of (the Applicant) showing favour to ...." 31. The provisions of section 9(1)(a) and (b) of the Ordinance are as follows:
32. Mr McCoy made the point that although the particulars in count 1 alleged only that the advantage was accepted as an inducement for "showing favour", the judge had nevertheless directed the jury that the Applicant would be guilty if it was established that the advantage was for "showing or having shown favour". It was submitted that this was a material misdirection because the Ordinance expressly distinguished between the present and future (i.e. "showing favour") and the past (i.e. "having shown favour"). If, it was argued, the jury had concluded that favour had been shown in past, this was outside the ambit of the allegation contained in the count on which the Applicant was convicted because nowhere in the particulars was it alleged that the advantage was for "having shown" favour. 33. Ingenious though this argument may sound, we have no hesitation in rejecting it. As Mr Ryan, in his adopted written submissions pointed out, it may well be that the words "as an inducement to" could be said to govern a situation where an advantage was accepted on the basis of a favour being given at or after the time of the acceptance of the advantage. However, this was not the only governing factor. The jury had, by way of alternative, also to consider, as the judge properly directed them, whether the advantage was accepted as a "reward for or otherwise on account of (the Applicant) showing .... favour" which, taking the ordinary meaning of these words, could be construed as meaning that a past, present or future favour was contemplated. It seems to us that this places no strain on the true construction of these words. The words "or having shown favour", whilst they were omitted from the particulars of count 1, and whilst they may have removed any doubt about the intention of this piece of legislation and also the scope of the allegation in count 1, in reality added nothing which was not already plain from the phraseology used in the indictment. 34. It is true, as Mr McCoy pointed out, that in his closing speech, Mr Ryan, who had appeared for the prosecution in the court below, seemed to have favoured an approach which looked only to the future. He had said "at the very least" the payment to the Applicant was a sweetener "in the expectation that the accused would use his position and influence to favour (Tan's companies)". This was, however, of little consequence when it was for the judge, not counsel, to direct the jury as to the law in all its aspects. The indictment alleged that the Applicant had accepted the advantage in count 1, as a reward for showing favour or otherwise on account of showing favour which plainly could have referred to the past, present or future. 35. This ground fails. Ground 2: Application of section 11(1) to section 9(1)(b) offence 36. Ground 2 criticised the judge's directions in his summing up that section 11(1) of the Ordinance had relevance to the jury's consideration of the section 9(1)(b) offences alleged in all the counts, including count 1. 37. Section 11(1) provides as follows:
38. It was submitted that the prosecution had to satisfy the jury that the Applicant had shown "favour" to the companies controlled by Tan and that the broad allegation contained in count 1 to the effect that the $4,500,000 represented a "general sweetener" did not relieve the prosecution, by simple virtue of section 11(1), from establishing the actual favour shown or to be shown by the Applicant when accepting the alleged advantage. 39. Mr McCoy argued that during the trial, considerable emphasis had been laid on the absence of any direct evidence that the Applicant had actually shown any "favour" to companies controlled by Tan. He suggested that this missing element gave support to the defence suggestion at trial that the payments were not advantages at all and had nothing to do with the affairs or business of the Applicant's principal, Wardley. In consequence of the judge's approach to section 11, Mr McCoy submitted that the judge had effectively withdrawn from the jury's consideration the importance of the lack of evidence showing that the Applicant had ever done anything wrong in relation to Wardley's business. Mr McCoy encapsulated his argument by suggesting that before section 11(1) could have any application to an offence brought under section 9(1)(b), the element of "showing favour in relation to one's principal's affairs or business" had to be established by proof of the purpose for which the advantage was paid "in order for section 11 to be capable of applying to negative any possible defence relied upon". 40. The way in which the judge directed the jury on this aspect of the law was as follows:
41. The references in this passage to the Applicant having acted or not acted in a certain way referred to the acceptance of an advantage for showing favour under section 9(1)(b). In this regard, we reject Mr McCoy's submission that section 11 can only apply where an "act" under section 9(1)(a) has been established. 42. In his written submissions, which Mr Ryan adopted, enabling us not to require calling on him save in respect of ground 6, he submitted that these directions accorded with well established law. The prosecution, relying on what they had alleged were the strong inferences to be drawn that the payment in count 1 was for showing favour to Tan's companies, had to prove, he submitted, not that any favour was actually shown but that the payment of the money in count 1 was accepted on the basis that this was a goodwill payment. 43. Mr Ryan relied, as he had done in the court below when resisting an application that there was no case to answer, on R v Tsou Shing-hing [1989] 1 HKC 93, where reliance was placed on section 11(1). In that case also it had been contended that there was no evidence showing the purpose for which money was either paid or accepted. 44. The facts in Tsou Shing-hing were different to the matter presently before us because there had been an admission of guilt made by the applicant. Mr McCoy appeared to submit that this was a distinction of substance. In our view, however, this provided no reason to distinguish Tsou Shing-hing's case from the present one, so long as it had been made plain to the jury that they must first find the elements of the offence proved. Whether or not the circumstantial evidence established guilt was a matter for the jury to decide. 45. In Tsou Shing-hing at page 96H, it was held, applying what had been said in Attorney General v Chung Fat-ming [1978] HKLR 480 that the last four words, taken from one of the phrases (applicable also in the present case) of the section 9(1)(b) offence, namely: "accepts any advantage as an inducement to or reward for or otherwise on account of ....", cover cases "where a general goodwill payment had been made without specific intention in relation to specific acts ...." Just above this passage, reference was made at 96A to section 11(1) and, as Mr Ryan submitted, it seemed that Mr McCoy was seeking to distinguish that case by suggesting that only where direct evidence has established a defendant's involvement in the acceptance of an advantage in the terms of section 9(1)(b), such as would be provided by a confession, that section 11(1) can apply. This is plainly not correct. The elements of the offence had first to be proved before the "non-defences" in section 11(1)(a), (b) and (c), as Mr McCoy called them, could apply. We are satisfied that this was made clear to the jury. 46. In the circumstances of this case, it would have been a serious omission on the part of the judge not to have referred the jury to the provisions of section 11(1) when an important plank in the defence case at trial had been that the prosecution was unable to show that the Applicant had in fact "shown favour" to any of Tan's companies. The Applicant neither gave nor called evidence in his defence and, in the absence of a direction as to what were deemed by section 11(1) not to be defences, the jury might well have entered into the realms of unnecessary and unwarranted speculation. This direction did not absolve the prosecution from proving acceptance of the payments on the basis of what was alleged in count 1. Effectively, all that the direction achieved was to make clear to the jury that the prosecution did not have to prove that the Applicant actually showed favour. 47. In the context of this ground, Mr McCoy also argued that the judge had "failed sufficiently, or at all, to direct the jury that their exclusive focus for the purposes of section 9(1)(b) .... was to decide what was the state of mind of the Applicant in relation to the receipt of funds. Further, (the judge) had failed to direct the jury that in law, the state of mind of Tan .... was irrelevant". 48. This criticism of the judge's directions was ill-founded. The judge gave explicit directions to the jury which are contained in the following references:
49. A little later the judge went on to say:
50. Shortly after this passage, the judge directed the jury in these terms:
51. There then followed the passage cited earlier where the judge set out the provisions of section 11(1) of the Ordinance. He prefaced this passage with these words:
52. The jury was again reminded of the terms of section 11 shortly before they retired to consider their verdicts and, in particular, that section 11 only came into play:
53. There was a considerable volume of circumstantial evidence relating to the Applicant's state of mind which had been placed before the jury on count 1. Most importantly, as we have said in relation to ground 1, this related to the method by which a large sum of cash was transferred to PW5 under the coffee shop table in the Hyatt Hotel, and the way in which the Applicant distanced himself from the date and payee entries written onto the cheques with the result that he avoided getting his handwriting onto them. More generally, because other factors related to some of the other counts, the jury was able to consider the Applicant's close relationship with Tan and his desire to keep his connection with Honeywell as discreet as possible. 54. We are satisfied that the judge, in the directions he gave to the jury, had made it abundantly plain that the Applicant's state of mind was a consideration of the utmost importance in relation to the receipt of the funds. It was unnecessary to direct the jury that it was their "exclusive focus", as Mr McCoy had submitted, provided the judge had emphasised the crucial importance of this aspect of the case. This he had done with clarity. 55. The submission recently attached to this ground by Mr McCoy, that Tan's state of mind was irrelevant, and that the jury should have been directed to that effect, is one that we do not need to deal with in any detail. Tan's actions in passing two million Hong Kong dollars in cash, and ten separate cheques in significant amounts, leaving payee and date entries blank, may have had some relevance towards an assessment of the Applicant's state of mind even if such evidence was, as Litton V-P described it in the similar circumstances pertaining to Attorney General v Ling Kar-fai (No.1) [1977] 2 HKC 642 at 649B) only "marginally" relevant. In the sense that Tan's actions might have provided limited assistance to the jury in reaching a decision as to the Applicant's intent, we incline to the view that this was likely to have been extremely limited. 56. It was further submitted by Mr McCoy that the judge had erred by failing to direct the jury that the "proved absence of favour" (as opposed to an absence of proved favour) in relation to the transactions between Wardley and Tan's companies was a highly material fact which was relevant to the state of mind of the Applicant. In regard to this submission, it is unnecessary to say more than that it was plainly apparent throughout the trial that the prosecution were not required to show that any actual favour had been shown by the Applicant to Tan's companies. We have already dealt with the judge's directions on this aspect although, for the sake of completion, we should add that he reminded the jury of the way the defence put this aspect of their case in these terms:
57. On any view, the jury was well aware that there was no evidence that a specific favour had been shown and, in this respect as in others with which we have already dealt, the judge's directions were balanced and fair. 58. Lastly, in the context of this lengthy ground of appeal, it was submitted that the judge had failed expressly to direct the jury that the "only relevance of the fund movements was to show that the named payers were the sources of the funds". It was contended by Mr McCoy that the judge had erred in law by permitting the prosecution to rely upon detailed fund movements by the payers, "prior to their eventual receipt by the Applicant, as evidence against the Applicant." 59. In this regard, it is necessary only to say that the evidence had been properly admitted in order to demonstrate from where the funds had come. There may also have been marginal relevance, although again this was very limited, in showing that the acceptance of the monies in count 1 was for a purpose unconnected to investment by the Applicant for Tan's benefit. 60. There is no merit in any of the matters raised under the second ground. Ground 3: Criticisms of summing up 61. In his third ground of appeal, Mr McCoy criticised various aspects of the summing up so far as it concerned the judge's treatment of the defence case. We do not propose in this context to deal with two of the complaints which were made as these were directly referable to the fourth and fifth grounds of appeal to which we shall turn later. (a) Trial issues and defence case 62. Mr McCoy began by criticising the judge for having failed adequately to "identify the issues in the trial and to properly and fairly sum up the evidence and the defence case" with particular reference to the evidence given in cross-examination by PW5, PW6, PW7 and PW12. 63. It is well established that a judge has the duty in summing up a case to identify the issues in the trial and to summarise, in a balanced way, the evidence both against and in favour of a defendant. The trial lasting about six weeks with which were are presently concerned was in many respects straightforward. However, it involved a considerable amount of documentary evidence in addition to the evidence given by a number of witnesses. None of the evidence was disputed save for the limited challenge of PW5 with which we have dealt under ground 1 relating to the reason he, rather than the Applicant, wrote on the cheques in count 1. In such circumstances, it would plainly not have been of any assistance to the jury to hear a summing up which dealt in every detail with all the evidence the prosecution witnesses had given. In an extremely helpful way, the judge began his summing up with a very short, general summary of what the prosecution and defence cases amounted to, before he turned to his directions on the law and a more detailed analysis of the evidence and the defence case. 64. Mr McCoy characterised the judge's handling of the evidence given by PW5 and PW6 as a recitation of the prosecution's case without any attempt to review their evidence. We need only briefly to examine this criticism in relation to each witness. 65. It was said in relation to Thomas Bate (PW5) that it was not uncommon for Impact to be involved in cash transactions. Whilst it is true that the judge did not remind the jury of this evidence, the fact that count 1 involved a large sum of cash was not the most significant factor. It was the manner in which this transaction was carried out at the coffee shop in the Hyatt Hotel which was important. The summing up, to which specific reference has been made already under ground 1, adequately covered PW5's evidence on this aspect. Later in the summing up, the judge referred to cash having being passed "under the table". Mr McCoy submitted that this amounted to an "improper and prejudicial comment". The passage to which he referred reads as follows:
66. There was nothing improper about the judge's choice of words. A phrase to the effect that cash has passed under the table is common usage in the English language and it is apparent that the judge was simply making the point that, by virtue of this, it by no means followed that the episode in the coffee shop was a sinister transaction. 67. Before we turn from the passage just cited, Mr McCoy in a separate complaint submitted that the judge misstated the evidence by referring to the bag which was passed under the table as a "flight" bag. In fact, PW5 had described the bag as a "plastic shopping bag". We have been unable to discover why the judge made this slip in his description of the bag. Equally, we have been unable to discern the importance of it. If it had any importance, counsel should and no doubt would have corrected the judge and it ill behoves counsel at this stage to rely upon this as giving any support for his arguments. 68. In the light of PW5's role in the events at the Hyatt Hotel, the recently acquired status of Impact as a deposit-taking company, the Applicant's role as an unofficial adviser to Impact, we find the criticism of the judge's description of Impact as an "Alice in Wonderland" organisation none too surprising. Perhaps Impact was not all that it seemed but in any event, it is unlikely that the jury would have placed any reliance on this when deciding whether the Applicant was guilty of the first count. 69. It was further submitted that the judge had failed to direct the jury about the significance of a prior inconsistent statement made by PW5 in which he had omitted to refer to how he came to fill in the details on the ten cheques which had partly been left blank. In this context, it has to be borne in mind that although there had been a muted challenge to PW5's evidence that the Applicant had said he did not want his writing on the cheques, and had therefore asked PW5 to write on them for him, this evidence, as Mr McCoy very properly accepted, was never directly challenged. Such conflict as there was, had been put by Mr King on the basis that PW5 "could possibly be mistaken". If there had been a direct challenge, it may be that the judge should have made a reference to PW5's omission in his first statement. This was not, however, a situation where recent invention was or could be suggested because, in a second statement made much later, PW5 had made reference to the issue concerning handwriting. 70. Thomas Yau Kam-wan (PW6) who, in due course, took over from PW5 as general manager of Impact gave evidence amongst other things about the ways in which some of the monies which had been deposited into the Honeywell account were later invested. Mr McCoy submitted that it would have been helpful to the jury if the judge had reminded them about how the monies in count 1 had been used to purchase shares in the Regal Hotel. This, he suggested, strongly supported the defence case. It goes almost without saying that it did no such thing. The monies were of course invested. The question for the jury was for whose benefit this investment was made. There was no evidence to suggest that it was for the benefit of anyone other than the Applicant. 71. Mr McCoy's criticism of the way the judge dealt with Oliver Mark (PW12), who at the relevant time had been Wardley's legal adviser, was that his evidence had not been referred to in any detail. PW12 had been subjected to extensive cross-examination. In particular, he had given detailed evidence about the Applicant's dealings with the representatives of Carrian and EDA. In summarising the effect of this evidence, the judge said:
72. PW12's evidence could not have been more fairly or helpfully summarised. No useful purpose would have been served by any further sifting of his evidence, which we were told had extended over some eight days, when the whole basis of what he had had to say was to be found amongst the jury's documents in schedule form and when the effect of his testimony was capable of concise summary. 73. It was also suggested that the judge should have reminded the jury that PW12 had strengthened the defence that the Applicant had not shown favour to Carrian or EDA. However, as we have said already, the judge did tell the jury that there was no direct evidence of the Applicant showing favour in the way which was alleged against him. There was no need for the jury to be specifically reminded of this when the judge dealt with the evidence given by PW12. 74. It is convenient at this stage to deal with another "non-direction" to which Mr McCoy referred. He pointed out that at no stage did the judge refer to other monies in the Honeywell account which were not the subject of charges but which, Mr McCoy suggested, might have represented funds being invested by the Applicant for Tan's family, friends and others. However, this was a point without substance because there was no evidence that the monies were being invested on behalf of third parties. The judge, in the terms we have cited under ground 2, had made it plain to the jury that the offence could only be proved if and when it was established that the Applicant had accepted the advantage in count 1 "as Wardley's agent", and not as "Ewan Quayle Launder acting on his own for some purpose unrelated to Wardley's affairs or business". 75. In relation to Peter Tsui Kwan-wai (PW7), a sub-manager of the Wing Lung Bank, who produced a large number of documentary exhibits, it was submitted that the judge had failed to deal with the evidence this witness had given when addressing the defence "red line of knowledge" argument. In order to follow what this involved, we were supplied with copies of the jury schedules which traced the source of the funds which were eventually paid into Impact for the Honeywell account. A red line divided each schedule to indicate, on the one hand, the movement of monies before they reached the Applicant in count 1, and before they reached Impact's account for Honeywell in all the other counts which on any view of the matter would have been outside his knowledge, from the movement, on the other hand, of monies after reaching him or Honeywell which would have been within his knowledge. 76. The judge, in dealing with this aspect of the defence case, together with the prosecution's attitude to the "red line" arguments, said:
77. The judge's summing up on this issue was balanced and fair, as indeed it was throughout the summing up. The judge had summarized the views of each side with the clarity the case required in order to provide a helpful outline before the jury's deliberations commenced. It was pointed out by Mr McCoy that the judge had dealt with the "red line" argument differently in the first trial. This submission would only have had validity if the judge had misrepresented the defence or prosecution positions on this issue in the second trial. It seems to us that he had fully grasped not only the evidence but also the arguments of counsel arising from it. 78. However, Mr. McCoy went on to submit that the judge's summary of this aspect of the case might have led to the jury to conclude that guilt could be inferred from Tan's actions which showed that he had transferred monies between various accounts before the funds ultimately reached Honeywell. At the very least, as these transactions were outside the Applicant's knowledge, it was submitted that this could have led to unfairness to the defence. 79. Again, the contention is groundless. To some extent, the weakness of Mr McCoy's argument can be gauged by the acquittals on all but the first charge. The 'red line' schedules reveal that, as time went on, Tan's movements of funds became more elaborate. On count 1, however, the picture was utterly straightforward. The ten cheques the Applicant had given to PW5 in the Hyatt Coffee Shop were all signed, as well as countersigned on the reverse side, by Tan himself. The sum of $2,000,000 had been withdrawn in cash by Tan from his own account. Furthermore, there was no dispute that Tan had given the Applicant the monies specified in count 1. (b) Delay 80. In a submission, the implications of which might well be said to have applied to all witnesses, Mr. McCoy complained that the judge had failed to warn the jury "as to the dangers of witnesses' recollections in relation to events that were almost twenty years old". 81. There are cases in which long delay may give rise to serious concern. Depending on the circumstances of each case, where there has been a lengthy delay between the events which relate to a criminal charge and the trial, it may be necessary for a judge to direct a jury, or himself if sitting alone, on this issue. By this we do not mean that it will be an invariable practice because this will depend, aside from the length of the delay, on the extent to which a witness' memory, unaided by any documentary evidence, is crucial and central to the prosecution's case. 82. In the event that a direction is considered necessary, the judge will need to direct the jury about the importance of making allowances for the fact that memories can fade after considerable time has elapsed. This is a commonly experienced human failing. Witnesses, from whatever background and walk of life cannot, with the clarity they might have had nearer the time, be expected to remember with accuracy something which occurred years ago. A direction along such lines, suitably adapted to meet the circumstances, will apply not only to prosecution witnesses but to a defendant who may, long after the event, find it more difficult to provide answers about his actions and words. Perhaps the most obvious example, where a direction on delay would be important, is the case where there is an uncorroborated allegation made by a complainant such as sometimes happens where sexual offences come to light long after the event. 83. In the present case, there had been a delay before trial of up to twenty years. Despite this, it is apparent that this did not call for a specific direction. We have said more than once that the trial involved almost no dispute on the facts as such. Memory was simply not an issue, and it follows we find no merit in this submission. Such comments that the judge did make about the failings of witnesses' memories were no more than a reflection of some of the evidence they had given. (c) Misstated evidence 84. Mr McCoy went on to deal with a number of minor factual errors in the summing up, which he described as relating to important areas of the evidence. These errors seem to have arisen out of the evidence given in an earlier trial where the jury had been unable to agree about their verdicts on any of the counts on the indictment. The most significant of these related to a passage in the summing up where the judge said:
85. In fact, as Mr Ryan candidly explained, the prosecution in the second trial had withdrawn the allegation they had been making. Plainly, the judge had been in error but no possible prejudice could have been occasioned by it having regard to the way in which he left the topic to the jury. 86. The other minor errors were of no consequence. 87. Ground 3 is without foundation and fails. Ground 4: Directions on jury's approach to inferences 88. In ground 4, Mr McCoy submitted that the judge had failed properly to direct the jury as to the circumstances in which they would be entitled to draw an inference of guilt and as to the meaning of inferences. He complained in particular, that the jury had been invited to take a "common sense" approach to the circumstantial evidence which might have caused the jury to depart from drawing conclusions or inferences only where they were irresistible. This passage in the summing up came very early on when the judge said:
89. Mr McCoy submitted that the judge failed to give the directions he had promised. We entirely disagree. Not long afterwards the judge had this to say:
90. This was a model direction. The judge had referred to "realistic" and "sure" conclusions which might arise from the circumstantial evidence, and we find no merit in Mr McCoy's contention that the omission of the phrase "irresistible inferences" was a material deficiency. The meaning was clear and the judge's directions were not open to criticism. Indeed, just before the jury retired to consider their verdicts, they were again reminded in a passage we shall cite in full under ground 5 that they had to be "sure that the only realistic conclusion to be drawn from the whole of the evidence" is that the Applicant committed the offences. 91. This ground fails. Ground 5: Applicant's election not to testify 92. In ground 5, Mr McCoy submitted that the judge erred in directing the jury that they could more readily draw the inferences the prosecution were saying should be drawn from the fact that the Applicant had elected not to give evidence. It was further submitted that the judge had unfairly criticised the Applicant for his failure to produce any accounting records in support of his defence when "in fact such documents had been adduced in the course of cross-examination of prosecution witnesses, such evidence being ignored ...". In essence, it was submitted under this ground that there had been a violation of the common law rule prohibiting the making of unjustified comments on a defendant's right to remain silent. 93. The judge dealt with the Applicant's decision not to testify in these terms:
The judge returned to this topic towards the end of the summing up when he said:
94. Mr McCoy cited a number of authorities dealing with how a judge should direct a jury when a defendant elects not to give evidence and as to the effect of this election. Amongst these were R v Bathurst [1968] 2 QB 99, R v Martinez-Tobon [1994] 1 WLR 388 and Weissensteiner v R [1993] 178 CLR 217. In our view, the last of these authorities, given in the High Court of Australia, provided a most useful approach to the balancing exercise which needs to be considered when a defendant, perfectly within his rights, declines to give evidence. At 228, in the first judgment given by Mason CJ, Deane and Dawson JJ, the court said:
95. At one stage in his argument, Mr McCoy seemed to be suggesting that the judge's adoption of the phrase in the present case that the jury might find themselves "more ready to draw the inferences ..." was in conflict with with Weissensteiner where the phrase "more safely" is used in the same context. However, as Mr McCoy very properly drew to our attention, in Lam Tsz-wah v R [1984] HKLR 54 at 63, the court adopted a formula that the applicant:
96. For our part, we do not consider that any sensible distinction can be drawn between what may be more "safely" or more "readily" inferred when a defendant has decided not to give evidence. In the present case, the prosecution's documentary evidence was before the jury and much of it had been helpfully scheduled. The way the defence had advanced the Applicant's case did not reveal the investors on whose behalf he was said to have been acting. Only the Applicant was aware of their identity. This was a matter which, if it was true, was peculiarly within his own knowledge. In such circumstances, the directions given by the judge were, in our opinion, within the principles set out in Weissensteiner. The Applicant's failure to give evidence was, in other words, a circumstance which had a bearing on the probative value of the evidence, and in particular the evidence given by Messrs Bryce and Fairbairn who had been given by the Applicant what the prosecution alleged were cover stories for the large sums he was handling. It was a factor which the jury could take into account when evaluating this and other evidence. 97. There is no merit in this ground and it fails. Ground 6: Depositions obtained by Letters of Request 98. Ground 6 is concerned with part of the evidence before the jury which consisted of three depositions taken in the United States of America, three taken in Switzerland and one taken in England, which had all been taken pursuant to letters of request under sections 77E-G in Part VIIIA of the Evidence Ordinance, Cap. 8. Defence counsel had objected to these depositions being read to the jury during an earlier trial of the Applicant which had ended with the jury being discharged when they were unable to agree. The judge had ruled that the depositions were admissible. This ruling was rightly accepted for the purposes of the retrial as the same judge presided in both trials. 99. Mr McCoy, in this ground of appeal has essentially sought to repeat the arguments of counsel in the court below by submitting that the judge was wrong in law, or alternatively erred in the exercise of his discretion, when he ruled that the seven depositions about which complaint had been made should be admitted into evidence before the jury. We propose to deal briefly with the criticisms which have been made about the various depositions. Depositions from U.S.A. 100. It was submitted that the depositions taken in the United States of America violated the principles set out in Liu Sung-wai v HKSAR [1998] 4 HKC 644 in that "Senior Crown Counsel ... improperly acted ... as a co-commissioner in the judicial function of taking the deposition(s)". Complaint was also made that although the Applicant had retained solicitors to act on his behalf, no notice was given to his solicitors of the prosecution's intention to take the depositions. In the result, the Applicant was unrepresented at the proceedings whereby, it was argued, he was deprived of his right to cross-examine the deponents. 101. These objections related specifically to the depositions of Anson Wong (Wong), Robert Collins (Collins) and Barry Zabell (Zabell). It is firstly necessary to consider each deposition in the context of the objections. 102. Wong was the Assistant Vice-President of the Shanghai Commercial Bank in San Francisco where he was employed in the bills department. He gave two depositions on 26 and 29 September 1989 respectively. In his first deposition, he produced a number of documents relating to the account of Nordica Segunda, a company controlled by Brian Bryce (who gave evidence in the trial that the Applicant had informed him he was investing money on behalf of others). Apart from the standard formal documents required to open an account at the bank, Wong identified and explained documents relating to a sum of US$500,000 received from the Sanwa Bank in San Francisco on the 25 August 1983 which were credited to the Nordica account after this had been remitted by Pacific Guaranty (formerly Impact). In his second deposition, Wong identified a number of other banking documents. 103. The second American deponent, Collins, had been the Vice-President since 1988 of the Sanwa Bank in New York. On 7 February 1991, he produced and explained banking documents in relation to the Bank's client, Nomura. Those numbered 1 to 16 related to the opening and maintenance of the account which were standard, formal documents. Documents 17 to 19 were brought into existence as a record of the payment of US$500,000 to the Shanghai Commercial Bank on the account of Pacific Guaranty (formerly Impact). This related to the earlier transaction in respect of the same sum dealt with by Wong of the Shanghai Commercial Bank of San Francisco. Other documents (20 to 21) evidenced the receipt of US$88,590 from the National Westminster Bank for the benefit of the Nomura account. 104. Collins was asked whether the records showed receipt by Nomura in the sum of about $720,000 in August 1983. There was no such record. This aspect of the evidence was wholly inconsequential. The deposition was otherwise confined to banking documents used in the ordinary course of that business. 105. The third deposition was provided by Zabell who was the Staff Officer in the Customer Services Division of the Hong Kong and Shanghai Bank of New York. At the time he gave his deposition, on 6 February 1991, he had been with the bank for 17 years. He had access to all its records. Documents 1 to 13 related to the opening, on 30 June 1978, of an account by State Investment House H.K. Limited (State Investment). Those numbered 14 to 41 were concerned with the opening of another account in the name of Gartmore Investments on 18 August 1978. The remaining documents evidenced a transfer from the State Investments account to Gartmore Investments of US$1m on 29 June 1983 which was sent to the bank's office in the Bahamas to be placed on deposit. The witness, Nagy el-Azar (el-Azar), gave unchallenged evidence at trial of this transaction and the ultimate transfer of this sum to the Applicant's bank account in Winterthur, Switzerland. Crown Counsel as co-commissioner 106. Mr Paul Roberts (Crown Counsel), attached to the former Attorney-General's Chambers, was appointed as a co-commissioner for the purposes of examining the three witnesses, with an Assistant U.S. Attorney who did not attend the examination of witnesses. The initial complaint which was raised was that it was wrong for Crown Counsel, employed by the investigating and prosecuting authority, to have acted as co-commissioner for the purpose of examining these three bank employees. In our view this is a valid criticism. In this regard, reliance was placed by defence counsel at trial and again before us, by Mr McCoy, on the judgment of the Court of Final Appeal in Liu Sung-wai v HKSAR [1998] 4 HKC 644. The third certified point considered by the court in that case was whether it was a material irregularity that Crown Counsel had taken the deposition of a material witness as a co-commissioner (or examiner) such as to render inadmissible the evidence so obtained. In the event, the court was not called upon to decide this point because the appeal was decided in favour of the appellant on the first two certified points which rendered such consideration otiose. Giving judgment, Bokhary, PJ said (at 654F-H):
107. The re-amended perfected grounds of appeal in the present case contain the assertion that Crown Counsel sat ... "in the judicial function of taking the deposition(s)." In our view, Crown Counsel was exercising a quasi-judicial function by reason of his acting as a co-commissioner for the particular purpose of taking depositions. It is only fair to say that when he did so, this was long before the Court of Final Appeal's judgment in Liu Sung-wai. The function of taking a deposition is, however, no more judicial in reality than, for example, the taking of a witness statement by a police officer before trial. Similarly, counsel at trial, in the discharge of their function in examining witnesses are not performing a judicial function. It is part of the legal process and that legal process as a whole is under judicial control. When complying with letters of request, the receiving country acts through its judicial authorities and the taking of a deposition is carried out on the strength of judicial authority. A judicial act generally is one done by the competent authority upon consideration of all the facts and circumstances before imposing decisions which will affect the rights of others. 108. In the present case, Crown Counsel was in fact wearing two hats. The question we have had to ask ourselves is whether this lack of independence in the exercise of sitting as a co-commissioner, while also being involved in the prosecution's investigations, vitiated the process of taking the depositions, thereby rendering them inadmissible. 109. The depositions were made by senior bank officials producing banking documents which had come into existence in the ordinary course of banking business. The depositions fell squarely within the category identified by section 77F(1)(b) and (2)(b) relating purely to the production of banking documents. Under section 77F(1), any deposition together with any document exhibited or annexed thereto, which complies with subsection (1)(b) and (2)(b):
110. The trial judge, in our opinion, was obliged by the terms of the Evidence Ordinance to admit these depositions despite the irregularity of the procedure. However, if the irregularity to which we have referred had caused the trial judge to consider whether, in the exercise of his discretion, he should admit such evidence, in our view the admitting of these depositions by him would have been in the proper exercise of his discretion. There was no challenge as to the authenticity of the records and no evidence was called to impugn them. In reality, there could be no challenge. They merely completed the documentary picture in relation to unchallenged evidence from Bryce and el-Azar. 111. In any event, it is worth mentioning at this stage that, for reasons we shall state later, this evidence was wholly unimportant to count 1. We shall also deal later with the complaint that the defence were given no notice of the examination of the American witnesses. Depositions from Switzerland 112. We can now turn to three deponents who provided depositions to independent examiners in Switzerland. The principal complaint which was raised in relation to the Swiss depositions was that they fell outside the seven-and-a-half-year limitation period in Switzerland for the taking of depositions in such a case as this. The prosecution's decision not to notify the Applicant about the examinations of two of the deponents was also criticised. Again, we shall firstly look at the nature of depositions before we turn to the criticisms made of them. 113. Philippe Arber (Arber) had been the sub-manager for nine years of what was formerly the Trade Development Bank of Geneva. His depositions were taken on 7 March 1990 by a Swiss Examining Magistrate. The first deposition amounts to a certificate of authentication of the bank documents he produced. These concerned transactions in 1983 on an account in the name of Nagy el-Azar (el-Azar). Specifically, the account dealt with the US$1m debited from the Hong Kong Bank in New York, which was then credited to el-Azar's account in early July 1983. It was then debited from that account and credited to an account at the Swiss Bank Corporation in Winterthur which was covered by a further deponent, Sigrid Gratz, to whom we shall turn next. The depositions plainly fell within the terms of section 77F(1)(b) and (2)(b). 114. The second Swiss deponent was Sigrid Gratz (Gratz) who had been the Assistant Vice-President of the Swiss Bank Corporation at its branch in Winterthur since 1 January 1984. In her deposition, taken by a District Attorney, she produced a large number of documents made in the normal course of banking, partly photocopied from the originals and partly generated by computer. These related to the Applicant's three accounts at this branch. 115. Apart from the formal documents relating to the opening of the account, documents numbered 30 to 92 were half-yearly statements of account from 30 June 1980 to 31 December 1989 and three accounts related to the period up to 6 February 1990. The documents number 94 to 418 were advices, instructions and memoranda relating to one particular account, with the exception of document 261 which concerned another of the Applicant's accounts. Documents 21 to 29 related to a credit of one of the accounts for US$1m from the Trade Development Bank in Geneva in July 1983. This sum had passed through Gartmore Investments account controlled by el-Azar, about which he had, without any challenge being made, testified at trial. US$950,000 of that sum was paid within a few days to an account of a Mr F.S. Launder at Credit Suisse in Geneva and the remaining US$50,000 were converted to Swiss francs and credited to one of the Applicant's accounts. Again, all the documents annexed to the deposition related purely to banking records and these fell squarely within section 77F(1)(b) and (2)(b). 116. Hans Wyss (Wyss) was the third deponent from Switzerland. He was a partner in a law firm. His deposition, which was taken before a District Attorney in Zurich, was concerned with three accounts, two of which were client accounts with the Swiss Bank Corporation in Zurich-L?wenplatz. He also produced and explained a document which was a schedule of the debits and credits of one of his firm's client accounts relating to Honeywell. In this regard, instructions for the payments of monies came mostly from the Applicant. The other documents fell into distinct categories. Amongst these were 1008 to 1048 which consisted of a number credit and debit notes. Document 1056 was a bank credit advice confirming the receipt of 120,000 Swiss francs from the Shanghai Commercial Bank Ltd, Hong Kong, on 12 December, 1983, for the benefit of Honeywell. Other documents showed how the money had been utilised with the balance being credited to a law firm, Notara Anstalt on 21 October 1985. 117. The remainder of the deposition was concerned with his appointment as a director of Honeywell and with statements relating to instructions from, amongst others, the Applicant. It covered the period from late 1983 until August 1985, when he and other colleagues resigned as directors of Honeywell. At that stage, Franz Pucher of Notara Anstalt and his colleagues took over. 118. The deposition given by Wyss fell outside the provisions of section 77F(1)(b) and (2)(b) of the Evidence Ordinance. The deponent had exhibited a combination of banking and other documents rendering his deposition liable to the considerations in section 77F(1)(c) which brings into play what the trial judge aptly called "mixed depositions". Effectively, the court is given a discretion as to whether such a deposition should be admitted into evidence. The judge in this instance had to be satisfied that "no unfairness (was) likely to occur" in the proceedings by admitting the deposition having regard to the matters contained in subsection (c)(i) and (ii) and (d)(i), (ii) and (iii). These matters relate in particular to the practicability of securing the attendance of the witness and to whether the deponent was cross-examined when giving his deposition. Swiss limitation point and discretion to exclude depositions 119. Mr McCoy submitted in relation to all of the depositions taken in Switzerland that the period of limitation for the purposes of depositions taken under the terms of letters of request for offences related to bribery was, by Swiss law, seven and a half years. The issue was raised by the examining magistrate who took Arber's deposition. She concluded, rightly or wrongly, that the offences being investigated were "continuous" by their nature and that there had been no breach of the limitation period. Whether the examining magistrate was right or wrong does not concern this court. The issue was relevant only in the context of the Swiss response to the letters of request. 120. The limitation point could have been raised at the proceedings when the deposition was taken from Wyss if the Applicant had wished to be represented. The Applicant's representatives were aware that Wyss was to be seen in respect of the production of documents. In any event, the Swiss authorities complied with the letters of request and the domestic limitation point at issue does not fall to be determined in this court. 121. Nevertheless, no doubt in the hope that the judge might be persuaded to exercise his discretion in favour of the defence to exclude the depositions, the trial judge heard evidence from a Swiss lawyer (Feldmann) who was extending his studies in Hong Kong. He gave evidence for the defence which the judge accepted, to the effect that under Swiss law, having regard to the dates of the offences with which the Applicant was charged, the taking of these depositions was time-barred. The maximum period of prescription was, according to Feldmann, seven and a half years, running from the date of the last offence charged, which on the indictment was June 1982. If this evidence was correct, the letters of request should have been refused by the Swiss authorities. 122. According to Feldmann, the examining magistrate who took Arber's deposition and who categorised the offences as continuing or continuous offences was in error. Perhaps it was that the examining magistrate felt the subsequent transactions in relation to the corruptly received monies, prevented any limitation provision from running. It is immaterial in our opinion whether Feldmann was correct or not. What is clear is that the depositions were lawfully obtained as a consequence of the honouring of the letters of request. 123. The trial judge, in the light of the same argument which Mr McCoy advanced before us, in the course of a meticulous ruling given on 24 May 1999 reviewed Lord Diplock's speech in the House of Lords in R v Sang [1980] A.C. 402. Sang has been considered many times over the intervening decades in the context of evidence obtained illegally or under dubious circumstances and where "entrapment" has been alleged or 'agents provocateurs' have been involved. What Lord Diplock said at page 437B of the judgment, of relevance in the present context, was that:-
124. In our view, it was unnecessary for the court in Hong Kong to consider whether, because a requested country may have erred in respect of the application or non-application of its own time bars to letters of request, it should exclude such evidence otherwise properly obtained. The mandatory wording of section 77F(1) precluded the consideration of the exercise of a discretion save in the particular circumstances identified in subsections 1(c) and (d) which deal with the court's approach to mixed depositions. 125. Mr McCoy went on in this context to make a suggestion of possible bad faith on the part of Crown Counsel by implying that Crown Counsel may have deliberately misled the Swiss authorities as to the dates involved in the offences under investigation in order to avoid the Swiss time-bar. He suggested that at the very least the Swiss authorities had been inadvertently misled. There is certainly no reliable evidence of this. However, in the light of this contention, it is worth remembering an earlier part of Lord Diplock's speech in Sang (above) at page 436G:
126. Most importantly, we are not dealing in the case before us with evidence relating to what the Applicant was alleged to have said or not said in a formal or informal setting, obtained covertly or otherwise. This evidence was independent documentary evidence by nature which almost entirely recorded financial transactions. 127. Mr McCoy relied upon a number of authorities in propounding his arguments on this ground. We need to examine only two of them. 128. In March 1995, the Supreme Court of Gibraltar in Arche Treuhand A-G and Anor. v Attorney-General, [1995-1996] Gib.L.R.18, considered a situation substantially different from the one with which we are concerned. In Gibraltar, the Attorney-General had no statutory or common law power to issue letters of request. He gave an assurance of reciprocity to the Swiss authorities. This was impossible under the law of Gibraltar. He also misled them as to a material change in the proceedings by the authorities in Denmark which had formed part of his initial request. The letters of request were themselves unlawful. For this, if no other reason, this case was entirely unhelpful. 129. In the second authority cited, the decision of the Auckland High Court (Fisher J) in R v Bechmann-Hansen [1997] 1 NZLR 598 was concerned not so much with letters of request, but with the practice of taking evidence on commission. Under the Mutual Assistance in Criminal Matters Act 1992, it was intended that a defendant should be given notice of the taking of evidence in a foreign country and given the opportunity to participate in such proceedings. In any event, under the New Zealand statute a distinction has to be drawn between "information" gathering and the "taking of evidence" which does not exist in Hong Kong law under sections 77E and 77F of the Evidence Ordinance. 130. The judge in Bechmann-Hansen (above) ruled that the statements were inadmissible under the relevant provisions of the 1992 Act and he went on to consider the question of whether all or any of the statements and exhibits would be admissible under other New Zealand legislation. He ruled that they were not. For present purposes, it suffices to say that although considerations and decisions as to the admissibility of documents and depositions made by other jurisdictions can sometimes provide valuable assistance, the true value of such judgments only properly applies where the foreign legislation is analogous to our own. In this case it was not so. Furthermore, at no stage in the Bechmann-Hansen judgment was any reference made to Sang. Mr McCoy candidly accepted that Sang has not been adopted into New Zealand law. 131. The Swiss depositions with which we are presently concerned were taken about ten years before the trial. It is not known whether any of the deponents are still alive let alone whether they would have been willing to come to Hong Kong. Even if they were, no purpose would have been served in bringing them to Hong Kong. They would presumably be no more able to identify the records and transactions than they had been in 1990. If the deponents, for the sake of argument, had attended the trial they would simply have been performing the same mechanical task, wholly dependent upon the documents themselves. 132. We shall deal shortly with the absence of defence representation at the taking of the depositions of Arber and Gratz. Deposition from England 133. The single deponent from England was Peter Brent (Brent) who was the Manager's Assistant at the Mayfair branch of the National Westminster Bank in South Audley Street, London. His deposition was taken before an examiner appointed by the High Court in England. He was examined in-chief by Crown Counsel. No objection is taken to this as Crown Counsel was not a commissioner for the purposes of the examination. 134. The records produced were banking records in relation to the Applicant's personal accounts. They included instructions signed by the Applicant related to transactions in the accounts, and inter-office reports as to the operation of the accounts. Documents evidencing transactions more than eight years prior to this examination could not be made available. These documents, therefore, again fell well short of the date of the events alleged in count 1. 135. Three transactions in particular were examined by reference to the records. The first was a credit of over ￡96,000 on 4 June 1982; the second, a credit of ￡50,000 on 6 December 1982 from Pacific Guaranty; and the third, a credit of ￡75,000 on 11 March 1983, also from Pacific Guaranty. 136. All the records were properly explained and produced by the deponent. They plainly fell within section 77F(1)(b) and (2)(b) as records of banking business. Absence of defence representative at examinations of deponents 137. The depositions of Wong, Collins, Zabell, Gratz, Arber and Brent all, as we have said already, fell within the provisions of section 77F(1)(b) and (2)(b) of the Evidence Ordinance. They are therefore admissible on their production, without further proof in the proceedings, as prima facie evidence of any fact stated therein or in any document exhibited or annexed thereto. The words used in the section are "shall be admitted". Neither section 77E nor section 77F requires that representation should be given or offered to a defendant at any examination of a witness. Indeed, since the application may be made ex parte it implicitly accepts that notice need not be given to a defendant. Section 77E applies to "investigations" and it is clear to us that investigations could well be hampered or frustrated if there were to be a requirement of notice to the defence. This may have been particularly relevant in respect of the two of the Swiss bank witnesses. 138. The trial judge dealt fully with this situation in his judgment. The argument before him did not suggest deficiencies in the contents of the depositions or documents annexed or exhibited. The only arguments advanced in respect of lack of notice were that the absence of cross-examination, to take three examples, prevented as enquiries as to whether a witness had been primed to produce the relevant documents, as to whether the exercise had been selective and as to whether other documents favourable to the Applicant existed. The judge correctly took the view that in respect of the "wholly banking" depositions, essentially there could be no cross-examination. It goes without saying that if the Applicant had wanted to explain any particular transaction he could have availed himself of the opportunity in due course. All that this evidence did was to show that certain transactions had taken place. Equally, if all that the Applicant desired was the simple production of further documents, this could easily have been done by agreement. 139. If it were necessary to consider admissibility of the depositions of Arber and Gratz as a matter of discretion, because the defence had been denied representation at the taking of the depositions, we have no hesitation in saying that a proper exercise of the discretion would have been to admit the material. We are not, of course, to be understood as saying by this that where evidence other than purely formal banking or business documents is being obtained, and where the prosecution may have gone on to make some other investigation discreetly, it would necessarily be excusable for prosecutors to attempt to obtain other forms of evidence without first giving notice to the defendant. In the case of Wyss' deposition, the Applicant could, as Mr McCoy conceded, have been represented. 140. It was the deposition of Wyss which fell outside the banking business definition in section 77F(1)(b) and (2)(b). The judge, applying the criteria in subsection (1)(c) and (d), properly concluded that no unfairness was likely to occur if the deposition was admitted in evidence. In any event, as we have said, the Applicant had been given the opportunity in this instance of being represented at the taking of this deposition. 141. For the sake of completion, we should perhaps add that the deposition of Gratz might technically be regarded as a 'mixed deposition' under section 77F(1)(c). Very little was contained in it which was not concerned with the banking business documents as defined by subsection (2)(b), and it was not of such significance as to have raised the remotest suggestion that any unfairness could have resulted from its admission into evidence. The only answers which might have made this a mixed deposition resulted from Gratz being asked, as part of the formal introduction, whether she had any bias for or against the Applicant or was related to him. Depositions irrelevant to count 1 142. The significance of the evidence from the foreign banks in the present case was plainly to show the movement of sums of money which could be linked to the Applicant between various accounts over a period of time. It was never in dispute that those accounts involved the Applicant to some extent. The prosecution relied upon this evidence to show that a smokescreen was being created to cover the movements of the money and to confuse anyone who sought to examine these later. However, leaving aside our opinion that the depositions were properly admitted, it is perfectly apparent that the evidence provided by the depositions had no direct relationship with count 1. The Applicant was acquitted of all counts except the first. Whatever may be the reasons for the jury's verdicts on counts 2 to 13 it is plain that the evidence which emerged from the depositions made no difference in the jury's assessment of this case in any way which was adverse to the Applicant. 143. The only relevant banking evidence relating to count 1 had nothing to do with the depositions taken overseas. The banking evidence on count 1 was that on 9 October 1980, $2,000,000 were drawn in cash from Tan's account at the Wing Lung Bank. Two days later, on 11 October 1980, ten consecutively numbered cheques, each in the sum of $250,000 drawn on Tan's Wing Lung Bank account, were banked at a branch of the Hong Nin Bank before eventually these funds were credited to the Honeywell account with Impact. In effect, this was the totality of the relevant documentary evidence from banking sources against the Applicant on count 1. 144. The evidence of PW5, of course, breathed life into this otherwise almost meaningless evidence dealing firstly, as we have earlier set out, with a meeting with the Applicant during the morning of Saturday, 11 October 1980 in the Hyatt Hotel coffee shop. This led to the somewhat unusual and bizarre antics of the chief executive of a respected banking organisation passing a large sum of money under the table and avoiding putting his handwriting on the ten cheques which he had obtained from Tan. After PW5 left the Hyatt Hotel, he called PW6 to help him count the cash. Eventually, the combined sum of $4,500,000 was deposited into the Honeywell's account. Honeywell had been bought 'off the shelf' by the Applicant from a firm of solicitors. Honeywell was controlled by the Applicant through nominees. Its shareholding and its directors were always the nominees of the Applicant who was its beneficial owner. 145. With these general circumstances in mind, and given that the remainder of the evidence on this count related to the flow of the money from Tan into Honeywell, the Applicant's furtive behaviour cried out for some explanation, but none was forthcoming. All that emerged at the trial was an unsubstantiated suggestion that the Applicant might have been investing the money for Tan and others. 146. None of the evidence on the other counts, as we have said in the context of the first ground of appeal, disclosed the stark picture which was revealed by count 1. It is difficult to see how the jury could have come to any other conclusion than the one they ultimately reached on this count. The documentary evidence arising from the depositions merely provided an overall picture of the movement of large funds. The sums of money in the other counts totalled a little over $39,000,000. All of these monies passed through Honeywell's account as well as other accounts, and was mixed in with monies which were not the subject of any charges at all. Apart from the Applicant's account with the National Westminster Bank in London, records for which did not go back beyond June 1982, just under two years after the offence in count 1 was allegedly committed, all the other transactions in the banking material related to the period 1983 to 1985. As the jury acquitted the Applicant on counts 2 to 13, the movement of over $39,000,000 or any part of it during that period had, it seems, no adverse significance in the minds of the jury. In our view, this evidence was not in any way material to the prosecution's case on count 1 which was set into a context of its own. The banking material arising from the depositions had possible materiality only to the overall picture relating to some of the remaining counts. 147. We have little difficulty in concluding that the depositions played no part in the jury's considerations in respect of count 1. There was no probative or prejudicial value once the other twelve counts had been resolved in the Applicant's favour. 148. Ground 6 fails. Ground 7: Jury management after retirement 149. The seventh ground of appeal was concerned with the trial judge's management of the jury after they had retired to consider their verdicts. Before we embark on the seven specific areas of complaint which have been raised, it is important to consider the overall time taken by this trial in order to assess the task faced by the jury. The trial lasted over thirty days, covering the best part of two months. The evidence of nearly twenty witnesses had been read or given orally. The exhibits ran into hundreds of pages. There were thirteen counts to be considered which were concerned with events between 1980 and 1982. The summing-up occupied the whole of 22 March 2000. The jury were eventually sent out at 10:27 a.m. on the following day. (a) Thursday, 23 March at 8:39 p.m 150. The court reconvened on 23 March 2000 at 8:36 p.m., some ten hours into the jury's deliberations. The judge informed counsel in the jury's absence that the jury had asked the bailiff to inform their families that they believed they would not be coming home that night. The judge told counsel that he was going to invite the jury to retire for the night and to start their deliberations again at 9:30 a.m. 151. Counsel for the defence tried to persuade the judge to enquire whether, if given more time, there was a prospect of their reaching any verdicts. The judge rightly rejected this. It was quite inappropriate at that stage to make any such enquiry. 152. When the jury came into court at 8:39 p.m., the judge told them that he was acquainted with their request for messages to be sent to their family. He went on to say:
153. The first criticism advanced arises out of the use of the words "there is no need for you to sit any longer unless you wish to, to consider your verdicts" which might well have left the jury with the understanding that they could continue to deliberate if they wished. 154. In England and Wales there are clear directions to the effect that juries should be told, when being sent to a hotel, that they must not continue their deliberations at the hotel to which they are sent. There are other directions which are also available for the guidance of judges in the context of the procedure to be adopted when juries retire overnight to hotels. The position is illustrated by the decision in R v Mohan Tharakan [1995] 2 CAR 368. 155. Juries in Hong Kong are no longer sent to hotels. Nowadays, they retire to rooms which are provided for their overnight accommodation in the High Court building itself. The English directions are therefore of little value in Hong Kong where the administrative problems of jurors staying in hotels never arise. 156. In the case before us, although the judge stated that the jury should not sit any longer unless they wished to do so, there is no evidence that they had deliberated after being directed to retire for the night. The following day, there was there no indication of any tiredness on their part. Indeed, the jury retired eventually for a second night. They were kept in accommodation where they were free from external influences or interruptions such as those which might be expected in hotel accommodation. They could communicate only with the bailiffs. Any notion that some of the jury carried on deliberating in those circumstances is purely speculative. We can see no possibility of prejudice arising from the way the judge had directed them. (b) Friday, 24 March 2000 at 2:30 p.m. 157. The second complaint which was raised was that on 24 March, at about 2:30 p.m., the trial judge was wrong to have refused to reconvene the court to hear counsel address him on a matter of law about the length of time occupied by the jury during their deliberations. 158. It was a matter for the judge to decide whether to reconvene the court in such circumstances. There is no copy of any note sent by defence counsel to the judge containing such a request. There is no record of any discussion or exchange in chambers. It appears to have been an oral enquiry by counsel made to a member of the court staff as to whether the judge would consider recalling the jury. It is therefore difficult, if not impossible, to identify what point of law could have been raised by counsel. 159. A trial judge has in such circumstances to exercise his own judgment in respect of when he should call back the jury. The timetable in this case indicated that it was quite unnecessary to take any such step at that stage. 160. The approach by counsel for the defence was an echo of his invitation to the judge on the previous evening to make a particular enquiry of the jury. It was premature and inappropriate then and it was equally so at this time. 161. In the event, at about 3:30 p.m., the jury sent a note to the effect that they had reached verdicts on twelve of the counts and were seeking advice in respect of the one outstanding count on which they were at that stage still divided. This event effectively disposes of this point which in any event we find to be without merit. (c) Friday, 24 March 2000 at 3:57 p.m. 162. The jury came back into court at 3:57 p.m. following consideration by the judge and counsel of the note in which the jury had indicated agreement on twelve counts. Five criticisms are raised as to the events which followed. In the first of these, it was submitted that the judge failed to answer the jury's question which had been as follows:
163. The question or, more accurately, the request for advice clearly indicated that a majority of 6 to 2 was not out of the question and further deliberation was anticipated. 164. The judge proceeded, after discussion with counsel in the absence of the jury, to give the jury a 'Watson' direction following R v Watson and Ors [1988] 87 Cr App R 1 at 7. Lastly, he gave them the only advice he could give in the circumstances which was that:
165. This could only have meant, in the context, agreement unanimously or by an acceptable majority. 166. The second and third criticisms were that the judge gave the 'Watson' direction and that when he did so he failed to follow the proper wording of such a direction. The wording adopted by the judge cannot in our view be criticised. He did not "exhort" the jury to reach a verdict on the single count as Mr McCoy suggested. Their note clearly implied that discussion was likely to continue. They were asking what they should do in the event that they could not reach the requisite majority. They were told in unexceptionable terms. 167. Mr McCoy produced for our consideration a schedule in which he had set out on the left hand side, sentence by sentence, the 'Watson' direction as set out in the English Judicial Studies' Board trial directions. On the right hand he had set out the words spoken by the trial judge when delivering the direction. The Watson direction is of course a standardised one and requires a high degree of adherence to the formula, but it would be astonishing if judges did not, here and there, sometimes use a few extra words or perhaps repeat a salient feature. The comparison provided in the schedule form is nonetheless helpful because it shows comprehensively that there is no substance in the point taken. 168. It was in the context of the time the jury had by this stage spent in retirement that Mr McCoy took up counsel's argument before the trial judge by submitting that what he termed a 'Rose' direction should have been given. There is no such thing as a 'Rose' direction. In R v Rose & others [1982] 75 Crim App R 322 the judgments of both levels of the appellate courts in England were strongly critical of the trial judge's contact with the jury on a number of occasions which, if not calculated to put pressure upon the jury to reach its verdict, was certainly likely to have had that effect. The trial judge, in the application before us, had made none of the contacts with the jury exemplified in Rose. 169. The Court of Appeal in Rose held that there had been a material irregularity and quashed the convictions. It is no doubt that part of the judgment of the Lord Chief Justice (at page 329) which Mr McCoy had in mind in making his submission under this ground. It reads:
170. This approach is well known. Suffice it to say, that it is patently clear from the exchanges between defence counsel and the trial judge that the judge was well aware of the situation. The length of the jury's retirement, and the circumstances which prevailed, did not call for him to take this step when the jury had given no indication that they were inextricably deadlocked. 171. In his fourth criticism, Mr McCoy suggested that the judge had fallen into error by not asking the jury at that juncture whether, if given more time, there was any likelihood of their reaching a verdict on all counts of the indictment. 172. This point is entirely without foundation. The wording of the jury's question, and its unarguable meaning, shows that advice was being sought in the event that a later stage, following further discussion, they were unable to reach a majority verdict. 173. The fifth complaint was that the judge failed to receive the verdicts of the jury on the counts where agreement had been reached. In our view, there was no requirement for him to take the verdicts which the jury had already reached. The judge had two options. He could either have taken the verdicts then or he could wait until the position in relation to one of the counts had been resolved. There was no prejudice caused to the defence whichever course he decided to take. 174. We have the greatest difficulty in understanding how the exercise of this valid choice can have constituted, even in part, a ground of appeal when it can safely be assumed that at least eleven of the twelve verdicts reached were ones of not guilty. (d) Friday, 24 March 2000 at 5:20 p.m. 175. The next event, which gave rise to further criticisms, related to a note brought to the judge at a time which Mr McCoy appeared to have believed was at 5:20 p.m. We have some doubt about this timing because seemingly it was brought to the judge's clerk about one and a half hours before the judge reconvened the court at 7:59 p.m. The note itself is to be found at pages 1526 and 1527 of the appeal bundle. It was written on a single sheet of paper, both sides of which have been copied for our benefit. On this document, six jurors had identified themselves and had written the telephone numbers of named persons together with a message, which was common to all of them, to the effect that they would be in the court building that night. Each message had a time set alongside it, presumably recording the time when court staff had tried to relay the messages. 176. This mundane and administrative feature of the case does not justify detailed consideration which can have occasioned no prejudice and certainly constituted no irregularity. These were not, as Mr McCoy tried to suggest, improper communications by the court staff with the jury and their family members. It was entirely proper and sensible that this procedure was carried out. The messages were of the type to be anticipated in any case involving a jury being kept overnight. We feel bound to say that counsel is well aware of this. The contact made on behalf of the jurors was properly carried out. 177. Dealing generally with the other criticisms which were made, it may be that there was a longer lapse of time than was strictly necessary before counsel was informed of the actions which had been taken, but this occasioned no irregularity. It was not in fact even necessary for the court to be reconvened simply to deal with the requests from the jurors but it was prudent to do so. There was no need for counsel to be heard on the matters contained in the note but in the event he was heard. Defence counsel had the original note when the court was reconvened. It was not necessary to produce a copy for defence counsel and, in some situations, to provide a copy of such a document would be highly undesirable in the event that the copy found its way into the wrong hands. (e) Friday, 24 March at 7:59 p.m. 178. At 7:59 p.m., the judge saw counsel in the jury's absence for a number of minutes before the jury returned to court. They were then asked to retire for the evening. It was submitted by Mr McCoy that the judge "erroneously informed counsel as to the time he received the note from the jury earlier in the afternoon"; that the judge was wrong to have refused defence counsel's request to enquire from the jury whether, if they were given longer, they might be able to reach a verdict; and that the judge's decision to ask the jury to retire for another evening without first asking them if they wished to continue their deliberations that evening had the effect of putting pressure on the jury. 179. This does not merit other than short consideration. If there was an error in the time stated by the judge it was immaterial. There was certainly no need for the judge to have made the enquiry suggested. The jury had known from the time of the 'Watson' direction what their course of action had to be if they were deadlocked without prospect of agreement. They had indicated that they wished to continue deliberations by clear implication. There was no pressure whatsoever brought to bear by judge's direction concerning their retirement. (f) Saturday, 25 March 2000 at 9:46 a.m. 180. When the jury returned to court on Saturday, 25 March 2000 at 9:46 a.m., the judge asked them once more to continue with their deliberations. Again, it was submitted that pressure was being put on them by the failure of the judge to tell the jury that they should inform the court if they were unable to reach a verdict. 181. There was no pressure. The jury was well aware of their position. They had not only be given the 'Watson' direction but had also been told quite clearly that if they needed further guidance they had only to send a note to that effect. 182. In an earlier statement to counsel, before the jury returned to court, the judge said that he might enquire if the jury were still "hopelessly divided" at a later stage in the day. Even this was criticised. Again, this was wholly without foundation. 183. In the event, the jury returned at 3:59 p.m. with its verdicts on all counts. 184. The judge was criticised for not having recalled the jury of his own volition before they ultimately returned with their verdicts. It is not necessary to restate our earlier comments. The careful and unhurried approach of this jury to their task indicates that any suggestion of their having been put under any form of pressure is entirely baseless. (g) General case management 185. Lastly, in relation to the catalogue of insubstantial points raised under ground 7, it was said that the judge had failed to follow the directions he had given in the first trial when, at about 7:00 p.m., he discharged the jury from giving any verdicts after they had been deliberating for only one day. Some two hours earlier, the jury in the first trial had indicated in a note that they were unable to agree. In answer to a question in court as to whether there was any possibility of reaching a majority verdict, the foreman of the jury had answered 'no'. 186. In our view, it was a pointless exercise to use this as the basis of an argument in support of a ground of appeal relating to the wholly different circumstances in the retrial. Conclusions on ground 7 187. The trial judge had demonstrated consummate patience towards the misplaced and repeated exhortations by defence counsel. The management of a trial and of a jury is for the judge. It may well be that Mr King, in his anxiety to gain a tactical advantage, was unable to approach this aspect of the trial dispassionately, but the same cannot be said about this ground of appeal where counsel, both leading and junior, have had the opportunity to consider the ground as drafted. It was wholly unmeritorious and should never have been advanced. Ground 8: No case to answer 188. As Mr McCoy rightly submitted, this ground could only carry weight if the court was in agreement with his arguments under ground 2. As ground 2 has failed, ground 8 similarly fails. Conclusion 189. Leave to appeal is refused and the application is dismissed. 190. An application for consequential orders, if any, should be notified within fourteen days.
Representation: Mr B M Ryan, DPGC and Mr Gavin Shiu, SGC, of the Department of Justice, for the Respondent. Mr Gerard McCoy, SC, Mr Alexander Stuart King and Mr Edwin Choy Wai Bond, instructed by Messrs Haldanes, for the Applicant. Remarks: |
Cases cited in this judgment
Further hearings and rulings under CACC 147/2000