HKSAR v. Mo Sze Lung Thomson and Another
Read the full judgment text of CACC 152/2001 on BabelCite. This Court of Appeal judgment was delivered on 24 January 2003.
1 On 4 April 2001, the applicants were convicted by HH Judge Saunders in the District Court of an offence of blackmail. This is their application for leave to appeal against that conviction. Each was sentenced to three years' imprisonment. There is no appeal against sentence.
Cited by 7 cases
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CACC000152/2001 CACC 152/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 152 OF 2001 (ON APPEAL FROM DCCC 732 of 2000) __________________
______________ Coram: Hon Stuart-Moore V-P, Stock JA and Burrell J in Court Date of Hearing: 24-25 October 2002; 16 January 2003 Date of Judgment: 24 January 2003 ______________ J U D G M E N T ______________ Hon Stock JA (giving the judgment of the Court): Introduction 1On 4 April 2001, the applicants were convicted by HH Judge Saunders in the District Court of an offence of blackmail. This is their application for leave to appeal against that conviction. Each was sentenced to three years' imprisonment. There is no appeal against sentence. 2There were three charges arising from the same set of facts, but each was presented as an alternative. The second and third charges alleged an attempt to obtain by deception, and conspiracy to defraud, respectively. Since the judge convicted upon the first charge, namely, blackmail, no verdict was rendered upon the others; and it is only the blackmail charge with which we are concerned. That charge asserted that on or about 12 June 2000 the applicants, with a view to gain for themselves or with intent to cause loss to another, made an unwarranted demand of $10m from Nina Wang Kung with menaces. 3The first applicant, Thomson Mo, is a barrister who, until his arrest for these offences, practised in Hong Kong. He is aged in his mid-thirties. Ailey Yeung, the second applicant, is younger by a few years, and is a solicitor who at the material dates was employed by a firm, K M Chan & Co. The two applicants have, ever since their days together at Hong Kong University, been very close friends. 4In the course of his work, Ailey Yeung had access to information at the offices of his employer about a case in which K M Chan & Co. was engaged. The case has received considerable publicity. It is a probate action in which there is a dispute about the authenticity of a will. The dispute is between Madam Wang, who is Chairman of the Chinachem Group and her father-in-law, Mr Wang Din-shin. The dispute follows the death of the late Mr Teddy Wang. He was kidnapped in about 1990 and is, by operation of law, presumed to be dead. It is unnecessary to delve into the details of the probate action which action at the date of the alleged offences had not been determined, save to say that much turned upon the authenticity of a holograph will produced by Madam Wang, a will said to be in the hand of the late Teddy Wang, the authenticity of which was challenged by Mr Wang's father, Wang Din-shin, for whom K M Chan & Co. has at all material times acted. Yeung joined that firm in 1997 and, according to his own account of matters, his dealings with the Wang dispute were sparse. But in April or May 2000 he was entrusted with a taxation hearing in connection with it. The documents relating to the case were locked in a safe. By this date, steps were in progress to test the authenticity of the holograph will in that it had been sent to the Government Chemist for forensic tests. 5It is common ground that between 12 and 15 June 2000, Thomson Mo made eleven telephone calls to Nina Wang in the course of which he represented that he was the Government Chemist engaged in examining the will, that preliminary results indicated that the will was a forgery, but that for $10m he could ensure an inconclusive result. It is also common ground that Ailey Yeung had given Thomson Mo copies of the holograph will, and had engaged in discussions with him centred upon their conviction that the will was a forgery. On 15 June, Ailey Yeung purchased gloves as well as a combination lock which he handed to Thomson Mo. A locker was secured in the Arts Centre Wanchai into which it was suggested that Madam Wang would place the $10m. Whilst making his eleventh call to Madam Wang, which was at about 9 pm on 15 June, and in the course of which he told her the combination number of the lock, he was arrested. Ailey Yeung was arrested nearby. 6None of these facts is in dispute and, as the judge remarked, on their face, they presented a most cogent case of blackmail. However, the defence, on the part of both applicants, was that there was never an intention to keep the money even had it been delivered; therefore, no intention to gain or to cause loss. Rather, the idea was to prove the truth of their conviction that the will was a forgery, proof which would be furnished by Madam Wang's proffering or payment of the amount demanded, for only a guilty mind would have that effect. 7Madam Wang did not pay the sum demanded. Indeed, shortly after the first occasion upon which Mo had spoken to her, on 12 June, she notified the ICAC and they had, from that time on, monitored calls, and moved towards the ultimate arrest of the applicants. 8According to the defence evidence adduced at trial, it was not the plan of the applicants to notify anyone if and when their plan became successful, nor to make any record of their success. The idea, it was said, was simply to gratify their own convictions and, in part, the ego of Thomson Mo. In so far as this may all seem odd to the rational observer, there was introduced into the trial evidence of a condition suffered by Thomson Mo, namely, bipolar 2 disorder, a modern name for manic depression, one manifestation or phase of which is hypomania. Hypomania is a condition of abnormally elevated and expansive mood, where self-esteem is high and where the individual is grandiose in his ideas and conduct. But the condition is not a psychosis and is not, so the judge found - and that finding is not challenged on appeal - a condition by reason of which the individual is precluded from forming a criminal intent. The judge accepted that this is the condition under which the applicant, Mo, laboured between 12 to 15 June. 9The defence of Yeung was to the same effect, that there was no intent to deprive Madam Wang of any money; that the scheme was a prank in the sense that it was a test of her honesty in the presentation of the holograph will. However, there was, in the testimony of Yeung at trial, an emphasis which was different from that of Mo. It was that at an early stage in the critical period 12 to 15 June, he took the view that matters were in danger of getting out of hand, so that he insisted that Mo should withdraw from the scheme to expose the will's suggested forgery, that he then thought that that was what Mo was doing, and that he only accompanied him to venues at which calls were made because he was aware of Mo's highly impulsive tendencies and was concerned to reign him in. Findings 10The judge rejected these defences. He correctly identified the central issue in the case, namely, whether it was proved by the prosecutor beyond reasonable doubt that each applicant intended to take the money which had been demanded. It was not, he said, for either applicant to prove their suggested motive for the escapade, a motive that was labelled in the course of trial and in this appeal as a prank. We shall occasionally use that as a convenient shorthand label for the defence, but it is, strictly speaking, a misnomer, because a prank is a trick for fun, whereas the essence of the scheme which the applicants say was afoot was a serious one, to prove that the will was a forgery. The judge rejected the suggestion by the psychiatrist for the first applicant, Dr Wong, that in the course of a hypomanic episode the individual is not capable of forming a criminal intent, and that rejection is not the subject of appeal. The judge commented in particular upon inconsistencies which he found between the statements made by the applicants in interviews with the ICAC, and the oral testimony of the applicants, and upon the evidence of surveillance by officers who were watching the applicants in the period preceding their arrest. He noted that the discussions which had taken place between the applicants about the will, and how its forgery might be revealed, took place before the suggested hypomanic episode. The plan had been devised over the previous month. He noted, too, the detailed planning that evidently went into the scheme; the role playing of the first applicant; the notes he made of what he was to say to Madam Wang during telephone calls; the use of a Sim card designed to stop the later calls being traced; the 'most telling evidence', as he described it, of the purchase of gloves and a lock and the placing of the lock in a locker at the Arts Centre; and the fact that in requiring Madam Wang to insert the money in the locker, the applicants went beyond what was necessary to satisfy themselves that Madam Wang had a guilty mind. He found that when the lock was thus placed in the locker, both accused intended that it be used to secure the money once the money had been inserted; and that, viewed as a whole, the overwhelming inference to be drawn was that the applicants intended to remove the money for themselves. He dismissed the second applicant's suggestion that he had distanced himself from Mo's activities. Yeung's purchase of the gloves and of the lock, in particular, put paid to that line of defence. Thomson Mo Recklessness and intent 11The first ground of appeal as it relates to Thomson Mo reads as follows: The learned Judge failed properly to consider or evaluate the intent of the 1st Applicant in circumstances where
The essence of the assertion is that there was here cogent evidence of recklessness, and that recklessness and a specific intent being incongruous, the specific intent required for blackmail was not made out. 12The ground is, in our judgment, misconceived. What it does is to take from the evidence of the psychiatrists, and from the Reasons for Verdict, references to the reckless manner which a hypomanic might, by reason of that condition, behave, and to assume that those references are inconsistent with an intent to commit blackmail. This is not what was intended by the psychiatrists nor by the judge in those references. What, obviously, was intended was this: that an individual might well, despite his condition of hypomania, form an intent to carry out an act, to pursue an objective; yet, having formed that intent, he may pursue it obsessively and in that obsessiveness will, or may well be, reckless as to the risks which he is running: the risk of being caught; the risk to his career; the risk, in this case, to Ailey Yeung who was assisting him. 13The passages in Dr Yuen's evidence upon which Mr Macrae SC, for Mo, relies are these:
14None of this successfully carries Mr Macrae to the point which he seeks to make. None of this undermines the conclusion that the first applicant, despite his condition, intended to make a demand for money with menaces; or was able to do so with a view to gain. The authorities which Mr Macrae cited are none of them to the point, for they are cases in which recklessness was germane to the issue of criminal liability. So, for example, R v Lawrence [1982] AC 510 was a case of reckless driving. R v Caldwell [1982] AC 341, to which reference was also made, was a case of arson, and in arson cases the question whether there was an intent to cause damage or whether, on the other hand, the offender was merely reckless as to whether or not damage has occurred is often the very issue which determines the specific offences; and recklessness whether the damage is caused suffices to establish criminal liability. What was charged in this case, and the sole offence with which this Court is concerned, is blackmail. We fail, especially on the facts of this case, to see how recklessness affects the issue of liability. The conduct proscribed by law is the making of an unwarranted demand with menaces with a view to gain or an intent to cause loss. As for the making of an unwarranted demand with menaces, that was not an issue in this case. The defence case was that such a demand was indeed made and made very deliberately and with a clear objective. As for keeping the money, recklessness did not come into that either. The key issue in this case was not to be resolved on some suggestion that the applicants did not care one way or the other whether they would keep the money. Their defence was that they did not intend to keep it. They were very clear in their minds that that was not an objective. The issue was whether that was, or might be, true. Once the judge was satisfied, as clearly he was, that there was an intention to keep the money, guilt was necessarily established. The fact, if it was a fact, that the applicants might not have committed the offence, might not have been obsessively driven to commit it, but for Mo's condition, then went to mitigation. It did not go to criminal liability. 15This sense of the references by the psychiatrist Dr Yuen to recklessness, of a man intent on a course of action the boundaries of which were clear enough, yet almost blind to the consequences to him and to his friend of his conduct, is readily apparent from the evidence. The true sense of it emerges from the evidence of Mo himself at the outset of his cross-examination by Mr Ryan:
16And again, in examination-in-chief, he referred to his condition being such as to make him "feel compelled to achieve [his] goal" but that:
17And it is evident from the evidence of Dr Yuen to which we have made reference that those in the throes of hypomania "don't want to control themselves ... they are more likely to take the risk because they don't consider the risk." (Tr. p 1169) 18We fail to see how "on the judge's own findings" the first applicant's mens rea can be said to have fallen short of the intent necessary for the commission of the offence. What Mr Macrae points to in the Reasons is this:
19There is no inconsistency between those comments, on the one hand, and, on the other, an intent to demand money; the making of the demand; and an intent to take the money. The reference to recklessness is obvious enough from the case's context and the judgment as a whole, namely, a propensity by someone suffering from hypomania relentlessly to attack his subject matter, and to achieve his aim, regardless of the consequences to him, and contemptuous almost of the fact that his act may or will be regarded by others as wrong. That is a recklessness which does not preclude formation of the intent. The condition means, rather, that once the intent is formed, the scheme at whose core the intent lies is carried through with particular resolve. This is all evident from the judge's conclusion as to the effect on Mo of the condition from which he was suffering:
Understanding the medical evidence 20The second and third grounds are allied to the first:
21Oral argument has not been advanced in separate support of them, as distinct, somehow, from the first ground. It suffices for us to say that we do not think that the judge has misunderstood the effect of the medical evidence at all. His summary of it is accurate, his rejection of Dr Wong's evidence as to the capability to form the requisite intent not surprising (and, indeed, not challenged), and the assessment of the applicant's conduct in its light, that the intent, whatever that intent may have been, once formed, was carried through with determination, is precisely what the condition, as explained by the experts, was all about. Dr Yuen's impression 22Ground 4 is perhaps of greater substance, though in the event it does not succeed. It arises from paragraph 16 of Dr Yuen's report, dated 12 February 2001. In that report, Dr Yuen agreed that the applicant suffered from the condition known as bipolar disorder, an illness manifesting itself in both depressive and hypomanic episodes. He said in that report that he accepted that Mo might have been in a hypomanic state between 12 and 15 June, although he added that it was to be noted that Mo's interest in Nina Wang's case had subsisted for months, and that there did not appear to be any sign of a disturbed mentality at the time of interviews with the ICAC. He remarked on the attributes of the condition, that they did not impair social or occupational functioning, and that hypomania results in increased energy, heightened creativity and self-confidence. He then came to paragraph 16 which reads as follows:
23It is the phrase "but I must admit that he impressed me to be the case" that triggers Ground 4, for counsel for the first applicant wanted to cross-examine the psychiatrist about that impression, but was not permitted to do so. 24The argument before us was that as a matter of fairness the cross-examination should have been permitted but, more specifically, that there is no longer a bar to the admission of expert evidence on what has been called "the ultimate issue". The ultimate issue in this case was whether the applicants indeed intended to take Madam Wang's money, for if they did not or, put more accurately, if that was not proved against them, then there was not proved a view to gain or an intention to cause loss and the offence was not made out. 25In so far as the ground founds itself on arguments about the ultimate issue and whether the law has in that regard changed, the argument was, with respect, again somewhat misplaced. Whatever sea change there may have been in recent years to the admission of expert evidence on the ultimate question, that change does not amount to a proposition, which we rather think was the tenor of the submissions made to us, that expert evidence is always admissible on the ultimate question. Whether or not it is depends on the facts of the case; upon the expertise, whether that expertise is relevant to the ultimate question; whether the expert's opinion on 'the ultimate question' is a conclusion which depends upon his expertise or is proffered in some other capacity; and whether the court requires the assistance of an expert upon the ultimate question. The decision in R v Stockwell (1993) 97 Cr App R 260, upon which Mr Macrae relies, is an example of a case in which the Court of Appeal in England held that a facial mapping expert ought not to have been precluded from providing his opinion as to whether the accused was the person whose photograph had been taken in the course of two separate robberies, in circumstances where it was suggested that the accused had been wearing facial disguise. The essence, for present purposes, of the decision of the Court of Appeal in England is to be found in the following passage, at page 264:
26The questions provided by the last sentence of that passage were, it seems to us, questions addressed by the judge in coming to his conclusion in the instance which we are examining. The judge took the view that on the issue of Mo's mental condition at the time of the offence he could be assisted by the expert's testimony; that it was but one factor to take into account in deciding a much broader issue, which was whether Mo in fact intended, despite his condition, to take Madam Wang's money; and that on this latter issue he required no further assistance from the psychiatrist. He took the view too that Dr Yuen, in offering an impression of the truth of Mo's story, himself recognized the distinction between the narrower expert issue and the broader issue for the court; that as to the latter, in so far as it went further than the former, Dr Yuen was doing no more, in effect, than to offer a layman's view; and, further, that the ultimate issue was in the event, not a matter which, heavily interwoven as it was with the factual matrix, he was impeded from determining himself without the assistance of Dr Yuen. Whether in this assessment the judge was correct is a matter to which we shall shortly turn. 27Mr Macrae relied, further, upon the decision in R v Ugoh, a decision of the English Court of Appeal (14 June 2001, unreported). There, a psycho-pharmacologist was called to give evidence about the effect on the brain, and on behaviour, of a given and very high concentration of alcohol in the blood of the complainant in a rape case. In the course of his evidence, the expert was permitted to say whether the complainant's inability to consent would have been evident to others. In addressing this issue, the court said, in a passage onto which Mr Macrae latches, that the evidence was not objectionable on the ground that it went to the ultimate issue. Yet that comment is a general truism and is hardly determinative of Ground 4, since it does not suggest, and it would be illogical to suggest, that expert evidence is permissible on all ultimate issues. The decision in that appeal itself demonstrates that not to be the case, for the court held that the question which the expert was at first instance permitted to address, namely, whether others would have perceived the complainant to have been unable to consent to intercourse was doubtful as a question fit for expert evidence; and that in that case the jury did not need the help of that evidence to that end. The passage in R v Turner [1974] 60 Cr App R 80, 83 still held good, namely, that:
In R v Ugoh, the jury was able to form its conclusion without the expert's help. 28The judge made no error in his approach to the law. He did not assume that because the question was the ultimate one, the evidence was, for that reason, inadmissible. In this regard he said this:
That illustrates that he did not exclude the 'impression' evidence on the basis that it sought, if it did, to answer the ultimate question. 29It is evident from comments made by the judge in his ruling and also in the course of counsel's submissions that he took the view that if, despite the condition of hypomania, Mo was nonetheless capable of forming the requisite criminal intent, then:
It is difficult to see how that stance can justly be criticized. Indeed, it might be said, looking through the transcript, that it was one which Mr Macrae himself had endorsed. For example, Dr Wong had, in his report, proffered the opinion that " ...as a consequence of this abnormality [hypomania], Mr Mo lacked the mens rea for the offence he is being charged with." (para 83, page 1228). The judge's retort (page 886) was that Dr Wong '... is being called not to give evidence as to the mens rea of the defendant but as to the defendant's state of mind, a condition which I ought to take into account when determining the mens rea.' To that Mr Macrae replied: 'Yes. Your Honour, I think I would agree with that and in fact I am little surprised to see the way he's worded that...'. That was not, and is not, a concession maintained in the case of Dr Yuen. Immediately after this exchange, when para 16 of Dr Yuen's report was mentioned, Mr Macrae's position was that the last sentences of para 16 ought to be admitted 'as a matter of fairness'; the judge responding that surely that ultimate question in this case was for the court on all the evidence, to which Mr Macrae answered: "But I don't think there's anything wrong in him giving it but it is not binding on the court obviously." (887). 30It is as well to examine the true nature and the context of the comment which in this appeal has assumed such prominence; and which, moreover, has been the cause of a recent application for the introduction of fresh evidence. We are not surprised that on the material before him at trial the judge commented that
We are not surprised because, read in full context, the sentence 'I must admit that he impressed me to be the case' was an adjunct, an aside, in the context of a report which was careful to concentrate on matters of psychiatric expertise, on the diagnosis of hypomania, and whether its impact is such as to negate the formation of an intent to commit crime. Having expressed his expert opinion on such matters, this expert, well versed in giving evidence in the courts of this jurisdiction, deliberately prefaced the last phrase of paragraph 16 of the report, the phrase upon which this whole ground concentrates, with the words: "Whether this is really the case should be determined by the court ...". In other words, the psychiatrist was recognizing what required his assistance and what did not; what was matter for his expertise and what went beyond it; and that in this case, the ultimate question went beyond it, depending as it did upon a judicial analysis of all the evidence. When he had formed the impression of which he spoke in his report, he had not listened to the tapes of any telephone conversations; not heard the evidence of any witnesses; nor the account of the second applicant; nor the testimony of the accused. He returned to the theme in the course of his oral testimony, that whether or not this was a well-planned blackmail was for others to say. He was not an expert in the area, although, again: "... my impression is that it was not really that good ..." (p 1177). Then again (p 1154) he asserted that whilst Mo was definitely capable of forming the necessary intent: "... whether he had that intent is another matter and that should be settled in court." 31That was the state of the evidence - a clear implication by the expert that the broader question went beyond his expertise - when at trial Mr Macrae expressed his wish to adduce evidence about Dr Yuen's belief in Mo's story, and the basis for that belief. We pointed out in the course of the hearing of this appeal that it had always been open to the defendants' advisers to approach the expert to ask upon what he based his impression and to establish, if they could, that there was material beyond the expert's analysis of Mo's psychiatric condition and his past, material beyond that covered in the report, which answered or could answer the ultimate question; yet they had not done so. It is in consequence of this comment by the court that after the conclusion of the hearing of the appeal in October 2002, those acting for Mo wrote a letter to Dr Yuen in which they asked him whether he would be prepared to 'expand on [the remark in para 16 of his February report], the reason why you formed that view and whether it was a personal opinion or was based on your professional psychiatric opinion of Mr Mo's illness and state of mind.' Dr Yuen replied on 1 November and, as a result of his reply, the solicitors acting for Mo wrote to the Registrar of this Court on 4 November 2002 asking the Court to reconvene to enable counsel to make an application under section 83V of the Criminal Procedure Ordinance for the admission of Dr Yuen's letter, which they described as a 'supplementary report'. That letter did not reach the attention of the Court until 12 December, one day before this Court was due to hand down judgment in the appeal. There is no record of the original letter ever having been delivered to the Registry; and the solicitors acting for Mo, in the face of no acknowledgment from the Court, did not raise any inquiries until 11 December. That is most unfortunate, because the failure to ensure delivery of the letter significantly delayed the determination of the appeal. In the event, the appointment for handing down judgment was vacated; and on 16 January 2003 this Court convened to hear an application 'that the First Appellant be permitted to adduce, for the purposes of the application for appeal against conviction the supplemental report of Dr Yuen... dated 1 November 2002....' At the hearing, the report was incorporated under cover of a statement in the form required by section 65B of the Criminal Procedure Ordinance. We were told that in the event that we were to admit the letter (the supplemental report) Mr Ryan for the respondent would not ask for the evidence to be delivered orally and, it follows, would not seek to cross-examine. The respondent's approach to the application was to oppose it on the basis that Dr Yuen's opinion as to the truth of Mo's defence remained inadmissible. We note in passing that the solicitors for Mo sent a letter to the Court dated 20 January 2003, that is, four days before the renewed date set for handing down judgment, telling us that Dr Yuen was available to give evidence should the Court wish to hear from him. There was no question of Dr Yuen not being available to give evidence on 16 January; nor was any application or suggestion made that he should give evidence. On the contrary, it was clear from what was said at that hearing that neither party required his oral testimony. The letter of 20 January was not itself an application for him now to give evidence. We are alive to the provisions of section 83V(1)(b) of the Criminal Procedure Ordinance and, for reasons which should become apparent from this judgment, we do not in any event consider it necessary or expedient in the interests of justice to receive his oral testimony. 32We have read the letter from Dr Yuen de bene esse. The letter is in the following terms:
33We are satisfied that there is nothing in this 'extra' evidence that is new or of which the trial judge was unaware or which might reasonably have affected his decision; and we are satisfied that the evidence, even were it to be admitted, does not render the conviction of Mo (or of Yeung) unsafe. 34The judge knew that Dr Yuen was inclined to believe Mo's protestations as to motive. He knew too that that belief depended in part on the fact that such details of which Dr Yuen was aware were consistent with the actions of someone suffering from hypomania. Indeed, in his Reasons for Verdict, the judge said (page 22) that 'the existence of the medical abnormality... and the presence of the hypomanic state during the period 12 to 15 June are factors I must take into account in assessing whether or not D1 did intend to take money from Madam Wang'. Each aspect to which Dr Yuen refers in his letter of 1 November emerged in the course of Dr Yuen's evidence through very extensive cross-examination, and we think that, as matters transpired, there was much in Mr Macrae's forecast to the judge when the issue of the ' impression' was first under debate at trial that "I may be able to get whatever I wish from him in another way" (page 887). It seems to us, and we say this in no critical sense whatsoever, that in the event he did; and what he 'got' from Dr Yuen in cross-examination was no less than that which Mo's advisers have 'got' from the letter of 1 November. Thus:
35It is inconceivable that the thrust of these questions and answers, and their relevance to the suggested credibility of the defence, could have escaped the trial judge. It is obvious that they did not. They were to the same effect as the first paragraph of the letter of 1 November. As for the second paragraph, and the effect of the letter as a whole, Dr Yuen is, in our judgment, saying no more than the judge reasonably supposed him to be saying in para 16 of the report of February 2001, that whilst Mo's defence was consistent with the behaviour one might expect of a person suffering from hypomania, it was not for him, the psychiatrist, to say whether the defence was true, because the psychiatrist may not have been told the truth and the court would almost certainly be in possession of more evidence; and that the court was well equipped to make that decision without further expert assistance or opinion. Dr Yuen's inclination to believe Mo rested upon two pedestals: first, that Mo suffered an illness which can make the sufferer behave as Mo behaved and by reason of which illness and its characteristics a sufferer might do what Mo did without a criminal intent; and secondly, so it seems, his trust in what he was told as to Mo's motive, based, he said in evidence, and in the November letter, on various sources of information, including Mo, Mo's relatives and Dr Wong. The first aspect or 'pedestal' is one upon which the expert could and legitimately did assist the court. But the second was a matter for the court, albeit taking into account the expert evidence on the first. It is the unwarranted running together of these two aspects that has marked this ground of appeal, as well as the application to admit fresh evidence. Dr Yuen has on several occasions recognized these distinct issues or these distinct functions. That is why he couched para 16 as he did; why he repeated the same point in his testimony (page 1154S); and why in his letter of 1 November he again says that the question of intent is a matter not for him but for the court. The judge too noted the distinction in his ruling:
36In this case the expert was not present throughout the lengthy trial, a trial that lasted seventeen days. Dr Yuen was present only during his own evidence, of course, and during the evidence of Dr Wong. He did not hear the testimony of either applicant. There were factual assessments to make, inherent probabilities to address, with the benefit of examination and cross -examination, which he was necessarily less equipped to make and to address than was the trial judge. One notes but a small example, a reference in his (first) report (paragraph 9) that Mo appeared sincere and frank and that '... his account of the alleged offence was almost exactly the same as what he had told the ICAC officers'. Yet, as we see under the heading 'Inconsistencies' below, the judge had ground enough to conclude that Mo's evidence was not sincere and frank, and that his oral testimony was in certain aspects markedly at variance with his ICAC interviews. Nor did he hear Mo's 'grand finale' account which was new (see Reasons for Verdict, page 31). This illustrates precisely why it was, on the one hand, proper, indeed necessary, to receive evidence about Mo's condition and that his behaviour and his protestations of innocence were consistent with that condition; yet on the other, why the issue whether or not the intent was actually formed to take the money, was for the court to decide upon a welter of evidence, upon hearing and watching that evidence, and in respect of which the court could derive no (further) assistance from the experts. 37Section 83V(2) of the Criminal Procedure Ordinance, Cap 221 provides as follows:
We are, for the reasons we have provided, satisfied that the evidence if received would not afford any ground for allowing the appeal and, accordingly, we do not admit the tendered evidence. There is nothing of substance in the letter which did not in any event emerge at trial; and the distinction which the judge and, as we find, the expert too, drew as to the limits of the expert evidence which could assist the court, was a correct distinction to draw. The supplemental report, even if admitted, would, we are sure, have made no difference to the judge's determination; and the evidence in it, even if admitted, makes no impact upon the conclusion we otherwise would have reached in this appeal. 38There was a further factual matter which, said Mr Macrae, he would have put to the expert, namely, the locker issue; that is to say, whether the fact that Mo had provided Madam Wang with a combination number was or was not consistent with an intention to steal. That proposition has only to be stated to see how clearly it was a matter exclusively for the judge to determine upon the factual, as opposed to the opinion, evidence which he heard. It is not a matter which fell within this witness' expertise. 39Mr Macrae complains before us that there was another reason why he ought to have been permitted to cross-examine upon the sentiment expressed in paragraph 16, namely, that it sat ill, he suggested, with the evidence which emerged in re-examination that the first applicant knew that what he was doing was legally wrong. That, however, was not how matters were pursued at trial. In re-examination, Dr Yuen said that, having listened to the tapes of most conversations with Madam Wang he, Dr Yuen, had concluded that Mo knew that what he was doing was legally wrong. This all arose because Dr Yuen had been asked by Mr Macrae to listen to those tapes overnight. He had not heard them before he started his testimony. Mr Macrae then cross-examined him as to whether having heard them, he stuck to his view that the escapade had been well-planned. In the course of that cross-examination the witness said that as to the conversation with Madam Wang, it appeared from them that "all along he knew what he was doing, and knew what he was doing was legally wrong." (p 1179). In re-examination, he explained that by pointing to the fact that during these conversations Mo repeatedly said to Madam Wang that he did not want the police or the ICAC to know about him (p 1187-1188). At the close of the re-examination, Mr Macrae expressed concern about that evidence and asked to be permitted to ask further questions, and was allowed to. In answer to the single (further) question about it, Dr Yuen accepted that the comment to Madam Wang was equally consistent with role playing. 40Now it is noticeable that Mr Macrae did not at that stage seek to re-open the question of paragraph 16. He did not then suggest to the judge that paragraph 16 was inconsistent with the testimony of Dr Yuen given after hearing the tapes. And it is not as if Mr Macrae's mind was not on the point, for he had specifically said to the witness that the witness was to steer clear of talking about Mo's intentions (p. 1190D). We hardly think that the judge can be criticized in those circumstances for not permitting further questions on a basis which was not advanced. 41We are satisfied, in the circumstances, that the judge did not err in his ruling. Inconsistencies 42Grounds 5 and 6 on the first applicant's behalf complain of the judge's assessment of suggested inconsistencies between the oral testimony of the defendants and their interviews with the ICAC. It is said that the judge erred in finding material discrepancies between the evidence of the first applicant and his pre-trial statements. 43What the judge focused upon when he mentioned discrepancies was the contrast between the evidence of the first and second applicants to the effect that at each stage of the history of 12 to 15 June 2000, the second applicant was expressing objection to the course upon which Mo seemed bent; that he protested; that he told Mo to stop; that he purchased a lock and gloves most reluctantly; that he resisted giving Mo the telephone number of Chinachem when Mo first wanted to contact Madam Wang; that there was a ferocious row in the restaurant after the two had arrived the Arts Centre on 15 June. The judge said, and we agree from our reading of the evidence, that "it was a central plank of the defence case that ... D2 was not a participant in the adventure and that from the moment he learned of the calls he pleaded and argued with D1 to stop." We do not think that there is any mileage in rehearsing here the isolated references to which Mr Macrae has taken us which, he said, show that in the interviews there was some suggestion of calling the escapade off; or which might hint at a secondary role by D2. That is because anyone who reads the interview records and then reads the evidence of these two accused, could not, in our view, fail to be struck by the remarkable disparity in their emphasis as to the second applicant's role. Any seasoned assessor of evidence would at once say what the judge said, that the oral testimony was a new angle to the combined account; a fundamental difference in approach; and one which was bound to cast the most serious doubt on the veracity of the evidence in court of both applicants. 44There is no question but that Mo's evidence was markedly different from his interviews in its portrayal of Yeung's role. There is a conscious emphasis in the evidence on Yeung's disinterest and objections. In the interviews, Mo was specifically asked about Yeung's role, and the tenor of his answer was that Yeung would discuss with Mo, from stage to stage, how to act and what to do. 45Yeung's interviews were, in their effect, no different. He there spoke of a mutual and continuing discussion of plans and counterplans, and a reluctance to proceed only when Madam Wang suggested a face-to-face meeting, and a reluctance on the afternoon of 15 June not because he was opposed to what Mo was doing, but because he still had work to do that day and was going on holiday the following day. 46Then it is said that it was unfair for the judge to have held against Mo his failure in the interviews to say what he said in his oral testimony, given that it was accepted that, at the time of the interviews, Mo was in a hypomanic state. This is unrealistic. There were three interviews in the course of which Mo was very vocal and answered many questions at length. There was no suggestion that he was anything other than confident in his approach. Indeed one of the psychiatrists who saw the videos of the interviews, commented on how Mo dominated the interviewers. That is as may be, but it remained a remarkable fact that throughout these three interviews (and throughout four by Yeung) the role of a protester attributed to Yeung was not there. We agree with the judge that, hypomania or no hypomania in the case of Mo, it is impossible to accept that had that been Yeung's role, the interviews would have been so devoid of reference to that fact as they were. We do not think that there is merit in this ground. Ailey Yeung The psychologists' evidence 47At trial, counsel for the second applicant sought to adduce the evidence of two psychologists who had examined him. That application was refused, and that refusal is the subject of the first ground of appeal in his case. 48The judge was presented with several reports, which he took time to read. He concluded as follows:
49The ground of appeal is framed in this way: that the psychologist agreed that this applicant's personality traits were such as to render him particularly vulnerable and susceptible to influence and suggestion by Thomson Mo, a matter of particular significance given that Mo was suffering from a disorder of which an overbearing disposition was a characteristic. 50One has first to pause to consider the relevance of this suggestion, for it was no part of the defence case that the second applicant was forced to act contrary to law such as would constitute a defence of duress. In the course of submission to the trial judge Mr Graham Harris, counsel then appearing for Yeung, said that the expert evidence would assist the court on "the issue of impressionability; the issue of unquestioning compliance; the issue of loyalty". (p 763) Again, one is bound to wonder to what issue that was relevant. The fact that the first applicant was the dominant personality of the two, as evidently he was, and as the judge clearly accepted, and the fact that Yeung might never, but for the first applicant, have embarked upon the scheme, whatever that scheme was, is not to the point. 51Mr Haynes says that the applicant's personal history, as revealed by the reports, discloses a background of rejection in early life by members of his family and a consequent fear of separation; that that was relevant to whether Yeung's critical faculties were blunted, whether he was merely carried along blindly believing that it was but some experiment, even if Mo did not view it as such. We will take the argument one step further, that perhaps that fear of separation and of losing a friend might be said to have been relevant to the presence of Yeung when asked by Mo to come along on his telephoning expeditions, and on the visit to Arts Centre, as evidencing a desire to avoid annoying or upsetting Mo, even though not really wishing at heart to take part in the escapade. 52The fact of the matter, however, is:
In saying that, the judge was no doubt proceeding on the assumption that Mo was forceful and dominant, and that Yeung might well not have wished to offend him. Nonetheless, that, the judge was saying, could not explain conduct which went beyond merely accompanying Mo wherever he went, for Yeung engaged in a series of positive acts. It was Yeung who gave Mo the copy of the holograph will. It was Yeung who gave Mo correspondence between the Government Chemist and the police. Yeung gave Mo the telephone number of Chinacham. Yeung purchased the gloves. Yeung purchased the lock. All this apart from accompanying Mo on his trips to make calls, and apart from discussing with him the calls and tactics to adopt. The reports of the psychologists added nothing that Yeung himself could not divulge. They each contain lengthy histories of Yeung's life and disappointments and fear of separation and of his dependence on Mo, all of which information came from Yeung himself. We note that when addressing the court, Mr Harris was hard pressed to say what expertise was to be put before the court in this regard which the court did not possess (p 764). Mr Haynes placed emphasis on that part of the first report which said that the second applicant's "development was characterized by recurrent experiences of separation" (paragraph 6.2). That was a fact which the judge could have gleaned just as well as the psychologist. Then the psychologist said that the applicant came to regard Mo as an indispensable friend and was unusually tolerant of demands made by Mo. That was also a matter that came from Yeung's mouth, and which the judge could hear for himself, and accept or not. 53There is one passage, we note, upon which no emphasis was placed in argument, which might possibly be said to come outside the court's experience, namely, a test performed called an actuarial profile interpretation showing this applicant to be "rather immature and dependent". Yet this characteristic emerged in any event from the bulk of the non-expert evidence, and was a conclusion to which the judge was prepared to come without the help of the expert. 54We note also that in his closing submissions to the court, Mr Harris does not appear to have been constrained in the least by the absence of expert evidence from addressing the court about this applicant's background and personality, and his submissive role (p 712); that in the course of those submissions the court referred to the second applicant's "desperate friendship" with Mo, with counsel responding: "He's spellbound by him" (p 718), and counsel saying that central to the second applicant's conduct on 15th June after an argument, was the relationship between the two: "He's got to patch things up, doesn't he, with his pal?" The reason why Mr Harris was not constrained to place these matters before the court was simply because they emerged from the evidence in any event. It did not require experts to place the evidence before the court, nor experts to enable the court to understand what that relationship was, and what its relevance was to the case. 55We do not think that the judge's conclusion was wrong. To have admitted this evidence and to have heard oral evidence upon it would have been to pander to over-cautiousness, thereby allowing a quite unnecessary prolongation of the trial. Separate cases 56The second ground for Yeung asserts inadequate attention on the judge's part to the separate cases of the two applicants. The evidence against each applicant was, it is said, different, yet the judge did not address the possibility that to one it might have been a serious scheme and to the other (Yeung) not. So, for example, it is argued that where the judge said that "the central issue in this case is whether the accused really intended to take the money from Madam Wang" (p 20) he should rather have said that the central issue was whether either or both accused nursed that intention. So, too, it is contended that the "relative inactivity of D2 was not 'dealt with' by the trial judge". 57There is really no merit in this ground. The judge specifically said (p 20P):
He mentions in terms the "central plank of the defence that ... D2 ... was not a participant in the adventure", and he analyses this contention and states at some length (pp 24-27) why he rejects it. He deals specifically, too, with Yeung's complicity (pp 29-30; and p 32). We note again, although this was not drawn to our attention by counsel for the respondent, how extensively counsel for Yeung addressed the judge on the question of the cases as they separately affected each applicant, why the guilt of one did not necessarily mean the guilt of the other, a submission which resulted in exchanges between counsel and the court showing beyond peradventure how well aware the court must have been of the need for separate consideration in the case. Inferences 58The third ground takes us to a series of findings by the judge which, it is contended, show an appearance of bias on the judge's attitude to Yeung's case. A study of the arguments, and the particulars, reveals this to be an odd way of putting the complaint. The essence of the argument is that inferences adverse to the second applicant were drawn when those were not the only reasonable inferences to be drawn from the evidence; and that those adverse inferences contributed materially to the finding of guilt in the second applicant's case. That in itself is a well-trodden path of appeal, and it is novel, and will rarely be logical, to plead apparent bias as the gravamen of the complaint. 59The complaint requires us to examine a series of findings or comments, each of which is said to have been in error, leading to a cumulative and material defect in the result. (1) Crossing the road 60The first is the approach by the judge to a disparity of evidence, between the prosecution witnesses and the evidence of the applicants, as to whether the applicants crossed the road together on 15 June from the carpark opposite the Arts Centre towards the Arts Centre. The surveillance officers said they did. The applicants said they did not. The suggested relevance of not crossing the road together is that it is said to support the accounts of the applicants that the second applicant was merely "tagging along", a reluctant visitor to the scene, not knowing quite what Mo was up to. 61The judge decided that it was not necessary to resolve this dispute. What he said was this:
62We see nothing odd or inappropriate in this approach. It was indeed unnecessary for the judge in this case to resolve each and every fact in issue. The "aspects of the evidence" to which the judge there refers included the starkly new emphasis of the second applicant's evidence when compared to his interviews; the observations of the officers who had seen the two applicants in a vehicle outside the Airport Express Station in Central after Mo had made a telephone call to Madam Wang when, contrary to the applicant's evidence, there was no appearance of a dispute; and the demeanour of the second applicant as revealed in a video of him outside the Arts Centre after the eighth call had been made to Madam Wang by Mo which did not tally with the picture of distress and agitation which the second applicant had sought to convey in his oral testimony (a video which, we note, the judge had, according to counsel at trial "called for more than once ... obviously it's a matter of interest to you" (p 716P)); and the positive acts of complicity by the second applicant, the purchase of gloves and the lock, which had taken place that very afternoon. This was compelling evidence against the contention that the second applicant was a protester rather than an active participant in the scheme. (2) The restaurant argument 63The next item of evidence which, it is said, was not dealt with satisfactorily by the judge is that relating to the suggestion by Yeung that he and Mo engaged in a heated argument in a Japanese restaurant on the evening of 15 June. The evidence was that after Mo went up to the 15th floor of the Arts Centre to place the lock in a locker and then joined Yeung outside that Centre, the two went to the Japanese restaurant situated in a building close to the Centre. Yeung's evidence was that, there, he lost his temper, speaking in loud tones to Mo; that Mo then left and, when he returned and said he had made yet another call to Madam Wang, the disharmony continued, with Yeung asking him whether he was out of his mind, and constantly repeating to Mo that he should not pursue the matter. The evidence of surveillance officers was that they saw no sign of any heated exchange. Mr Haynes complains that the judge had an inadequate basis for rejecting the evidence of the applicants that there was an argument in the restaurant, relying as he did on evidence of surveillance officers which, it is contended, was unsatisfactory. One disadvantage we have in assessing this suggestion is that we have not had placed before us the transcript of the evidence of those officers. 64This complaint depends for its force upon an unrealistic isolation of, and gloss upon, one reason given by the judge for rejecting the evidence of the applicants that they argued heatedly in the restaurant. At one stage of his Reasons, the judge said (p 26R):
No-one suggests that that was an inaccurate summary of their evidence. One cannot usefully take comments like this in isolation and out of context. The judge was aware that the officers were not in the restaurant at all times. That fact had been drawn to his attention in the course of counsel's closing submissions, and the judge engaged counsel on that issue (p 719). But the fact is that there were officers there in the restaurant whilst the two were together, and those officers saw no sign of disharmony. That is all that the judge was saying. But the matter did not stop there. The judge made this comment amidst comments about a sea of indicia, such as other surveillance, a video tape, and the interviews of the applicants, all of which pointed to the fact that the story of the heated disputes sat ill with the evidence as a whole. (3) Yeung's response to a caution 65In his Reasons for Verdict, the judge comments, at an early stage, that those facts not in dispute make for a cogent case of blackmail but that the matter does not end with the common ground, because it was the case of the applicants that the exercise was a prank. He says (p 19R) that Mo's reaction upon his arrest was that "It was a prank, a joke. I never intended to take the money," and that during processing at the ICAC Headquarters afterwards, Mo said that "It was a joke". But then, the judge went on to say that:
66We do not know from where the judge derives this evidence as to Yeung's response on arrest and caution. We wonder whether it might have been something said at ICAC Headquarters, but we do not have the evidence of what he there said, if anything, and Mr Ryan for the respondent has not suggested that something of that kind was ever said by the second applicant. In his written submissions all that Mr Ryan has said about this issue is that "the trial judge was well aware of the individual reactions of both applicants" a submission which, with respect, simply does not begin to answer the contention that is made, or to address the issue which we have to tackle. 67The contention that is advanced by Mr Haynes is that the judge was factually wrong, that this was not Yeung's reaction upon arrest, and that the error is material because the actual reaction is consistent with the case for Yeung advanced at trial, namely, that he, Yeung, had nothing to do with the extravaganza embarked upon by Mo; and, furthermore, that the remarks made by Yeung sit ill with the judge's conclusion, which we see later in his Reasons for Verdict, that the applicants had pre-planned their responses should they be arrested. In his oral submissions to us, Mr Ryan, also, says that the judge's account of Yeung's reaction to arrest is inaccurate. 68It was put to the arresting officer (p 732) and it was Yeung's evidence (p 829) that when arrested Yeung said: "Why are you arresting me? This is not my business, I'm not really involved." The answer which the officer gave in evidence was this:
That officer made no note of the conversation. In the course of closing submissions, the judge was reminded of this evidence and that of the second applicant. (Tr pp 717-718) 69The suggestion that the second applicant said: "This is not my business. I'm not really involved", does not accord with the thrust of the four interviews which the second applicant gave to the ICAC on 15th and 16th June. The thrust of that account, in those interviews, including the important first interview on the evening of 15 June, was that he had been engaged upon the escapade from well before 12 June, but that it was all a test of how Madam Wang would react to the proposal that in return for money (the second applicant himself suggesting a sum of $6m), the chemist's report could be couched in a favourable way. Furthermore, he purchased the lock because it was all make believe. This was the undisputed response of the second applicant to the questioning on the night of his arrest; and this was, self-evidently, the pre-planned response to which the judge was referring at the close of his Reasons. The judge was not bound to accept the evidence of the second applicant as to what he said to the arresting officer; and it seems to us obvious that the judge did not in his Reasons for Verdict address the submissions made by counsel, that the applicant's response to the arresting officer went further than the arresting officer had suggested, because it is implicit in the findings as a whole that he did not accept that those additional words were used. They were not recalled by the officer, and they did not fit with the account given by the second applicant in his interviews. (4) Inconsistencies 70Then Mr Haynes attacks the judge's approach to inconsistencies between the evidence of Yeung and his interviews. We have dealt with this in the case of the first applicant, and our analysis embraces the case of the second applicant. The inconsistencies were stark and cannot, on any view, bear some innocent gloss which, as Mr Haynes would have us say, would render them of no significance. He says that the judge appears to have treated the inconsistencies as constituting lies. In so far as the judge rejected the oral testimony of Yeung in its theme of a protesting partner - and we are not at all surprised that he did reject it - it is difficult to see what else Yeung was doing in his oral testimony but, as to that subject, lying. (5) 'Intelligent men' 71As a further suggested illustration of the manner in which the judge chose a negative, as opposed to an innocent, interpretation of events, when both were available, Mr Haynes points to a number of instances where the judge in his Reasons for Verdict expressed incredulity based on the fact that the applicants were intelligent men. Mr Haynes argues that the evidence illustrated that the scheme was a singularly ill conceived and badly planned one, and that that is the view point from which the judge should have approached the matter, a view point which supported the defence case. Let us then examine the examples to which he points: 72Example (1). It was the evidence of Yeung that when he purchased the lock and gloves at Mo's request on the afternoon of 15 June, he did not know for what they were intended. The judge addressed this and referred to the events leading up to the purchase of these items, events stretching back some weeks, and developing into a crescendo of activity during the week beginning 12 June with calls to Madam Wang, discussions of places for delivery of the money, demands for $10m. Against that background, the judge said:
So it was. 73Example (2). There is then criticized the following remark:
Why, asks Mr Haynes, is this the only reasonable conclusion to draw? In fact, he argues, the planning was clumsy. The applicants, one of whom, Mo, was a former police officer, loitered in, and in the vicinity of, the Arts Centre, a building with CCTV cameras. These were men who made lengthy telephone calls to Madam Wang. The fact that they were intelligent men behaving in this way, in a way that must have spelt a significant possibility of being monitored, when intelligent men would know that there were easier ways to have money conveyed - for example, to an account in Taiwan - itself strongly suggests that this was not a serious scheme. Yet this angle, this approach, this consideration, does not, it is said, appear to be one that the judge addressed. If so, how can the conviction be safe? 74Again, the judge's comments here are not expressed in a vacuum. Prior to this passage, he rehearsed at some length the strength of the case, the nature of the planning, and the extent of the risks which the applicants themselves believed they were taking. The effect of the evidence, as he summarized and assessed it, was that the applicants all along believed that Madam Wang had indeed forged the holograph will and, that being so, that they little feared that their contact with her would be reported by her to the ICAC or to the police. There is much in the evidence which supports that conclusion. Mo in particular, asserted on a number of occasions, both in his interviews and in evidence, that, until he was arrested, he did not think that the police had been alerted (see, for example, page 1031 transcript). Yet they nonetheless took some precautions. For example, Mo said in his third interview that the gloves were purchased just in case other people were involved (entry 211); and, in the second interview, that he made calls from different places because he was guarding against the police and the ICAC (entry 200). So the question of risk-taking is to be viewed, as did the judge, in that light. Nor was the planning quite as clumsy or carefree as Mr Haynes suggests. The telephone calls to Madam Wang were made from different places; the caller (Mo) disguised his voice; the applicants addressed each other with code names; Mo made notes planning his calls, and what he would say; the applicants purchased gloves and a lock; they specified that old notes, not new, were to be delivered; and the information imparted to Madam Wang as to where the money was to be delivered was staggered. 75There is a further consideration. It is true that much of the saga was consistent with role playing, and with someone like Mo acting out a fantasy of being an undercover type, (and we note there is in his background an episode of wanting to be an undercover agent). As against this, one matter is noticeable, which is the entire absence of post-'revelation' indicia to support the suggestion of a scheme to expose Madam Wang. It was accepted in cross-examination of Mo that once Madam Wang was exposed as a culprit, the applicants had no plan to tell anyone. They brought with them no camera. They taped no conversations. They had no intention of informing the police, or the solicitor for whom Yeung worked, even if they discovered the will to be a forgery. They made no note recording their scheme, a note that might be placed, say, in safe-keeping in the event that they were discovered and questioned. We rather think that had this been the 'undercover' operation that the applicants suggested that it was, grown men, professional lawyers, would surely have taken such steps in order to cover themselves, should their conduct be discovered. 76Example (3). The penultimate paragraph of the Reasons for Verdict reads as follows:
Counsel, and we too, have had some difficulty in understanding the judge's logic in relation to laymen but, on reflection, we sense that he was saying no more than this: that had laymen said to the ICAC officers that this was all a prank, it might have caused the judge to pause, because it may be that layman would not appreciate as readily as would lawyers that a prank would negate a charge of blackmail. 77Mr Haynes argues that the judge has rejected the defence on the basis that their response to the allegations by the ICAC was a pre-planned response. That, he says, is a serious error. If the whole scheme was indeed a prank, then it took no pre-arrangement for each applicant to tell the police or the ICAC just that. Even if the applicants had agreed that, if arrested, they would tell the authorities that the scheme had been a prank that was not evidence of dishonesty, if the scheme had indeed been a prank. We think, though, that this is to misread the way in which the judge approached the matter. He did not say that the response was pre-arranged and that therefore he concluded that the defence was a sham. The passage of which complaint is made follows the conclusion which the judge had earlier reached and articulated, that both accused intended to take the money from Madam Wang (see page 35E-F). Once that conclusion was reached, it followed that what they said to the ICAC was untrue and, if untrue, and since the story as between the two of them tallied, pre-arranged. (6) The combination lock 78Finally, and importantly on the question of inferences and the suggestion that the judge took an adverse inference when a favourable one was feasible, there is the issue of the combination lock. It is common ground that in the final telephone conversation which Mo held with Madam Wang on the evening of 15 June, he told her the numbered code to the combination lock which he had placed in an open position inside the locker in the Arts Centre, the locker into which the money was to be placed. This was a fact of which the defence, not at all surprisingly, made considerable play at trial and before this Court. It was surely odd, they contended, for the true blackmailer, intent on securing the money, to provide the victim with the combination number of the lock. What was the purpose, save that suggested by the applicants, namely, to enable Madam Wang to retrieve the money after she had been 'found out'? There was no question of the agent who would be placing the money in the locker having to unlock the lock, for that lock was open. The number of the lock had already been set by the time Mo had telephoned Madam Wang for the last time (see the conversation referred to at his first interview, entry 357; and at interview 2, entry 563). There was much confusion in the evidence of Mo as to what he intended to do when the money arrived. He had never given Madam Wang the locker number. He said that he did not intend that the money should be placed in the locker, and that the code was given for the lock in order to mollify Yeung's anxieties. There was a suggestion by him that it would have sufficed for him to see the courier simply arriving in the forecourt of the Arts Centre, and that he would then have telephoned Madam Wang to reveal that she had been exposed. Nevertheless, in their interviews with the ICAC, the applicants said that the combination had been provided so that she could retrieve the monies if deposited. The resolution of this issue was therefore important. 79The possibility that the numbers were given in case they were not aligned when the depositor of the money reached the locker was discounted because the evidence, accepted by the prosecution (see page 1038G) was that the numbers could not be moved when the lock was in the open position. The judge had obviously paid attention to that, for we see also (page 811) that it was a fact which he accepted and it seems that he had examined the lock itself. There was a suggestion in cross-examination by the prosecutor (page 861) that the lock number was provided to Madam Wang as a precaution to fit the story of a prank. In the course of this hearing, Mr Ryan frankly told us that the prosecution did not know why the number was given. 80The judge addressed the issue thus:
81The answer to the contention that a favourable inference was feasible from the fact that the combination number was provided to Madam Wang is that that is true in isolation. It will often be the case that counsel will be able to point to this fact or that, to an item, perhaps an important item, of undisputed evidence, and say with force that that piece of evidence permits of an innocent inference; and that can be said of this item of evidence too. But the fact of the matter is that whilst it was a piece of evidence that could, in pure isolation, be utilized as supporting the defence that was run, it did not stand on its own; and it was in the face of all the evidence that the judge decided its worth. The judge was not bound to decide precisely why the number had been provided to Madam Wang, although he provided a reason that is not illogical. Indeed, there may have been others; for example, that the applicant Mo was seeking to lend credibility to his assertion that a lock was in the locker to secure the money. What the judge was bound to do - and he was very well aware of the point that was taken - was to decide whether in the context of all the evidence which he had heard and had examined, very thoroughly, it was such as to undermine the effect of the whole prosecution case; and he decided that it was not. In the context of the panoply of inculpatory facts which he had, he did not accept the innocent gloss which the applicants would have had him place on the fact that Mo had mentioned the combination number; and we cannot say that he was wrong in his conclusion. Inherent weaknesses 82The fourth and final ground is to the effect that the judge failed to recognize inherent weaknesses in the prosecution case. These, it is suggested, are that: no property had in fact been taken; the second applicant was in a strong financial position and was involved in organizing a major family holiday; that he had no direct involvement in the negotiations with Madam Wang; that he had expressed unwillingness to pursue the scheme; and "was too intelligent to go along with such a primitive 'collection plot'". 83It is true that the ICAC pounced before the delivery of money. The case would have been stronger had the money been delivered by Madam Wang and collected by the applicants. But the judge took the evidence as he found it, and rehearsed a long history of activity on the part of the applicants which he found adequate to demonstrate the offence's commission. He did not fail to recognise the second applicant's status, or planned holiday, or the applicant's intelligence (the references to which are indeed criticized in earlier grounds by counsel for the applicant). This is a makeshift ground which has no substance. Conclusion 84This was a lengthy trial in which the judge was exposed to detailed oral testimony, and to the recordings of telephone calls, and to video recordings, and to submissions on every point that could be taken on the applicants' behalf. The facts as a whole with which, at the outset, he was faced presented a strong case of blackmail - facts which we need not again repeat. He was ever conscious of the fact that central to this case was the defence of no intent to gain or cause loss; and he emphasized that it was for the prosecution to prove the contrary. It was a defence, he said, that the prosecutor had to discount completely (page 21N). He had the advantage, which this Court does not have, of having lived with the case on a day to day basis, and of having heard the extensive testimony of the applicants. The fact of the matter is that he did not believe at all what they told him. That fact of itself does not, of course, determine an appeal; but the judge has provided sound reasons for that disbelief, and he has provided a host of indicia upon which he bases his findings of guilt, and his reasoning is cogent. We have examined in some considerable depth each of the complaints made on behalf of the applicants, and we have now provided our reasons for concluding that they are not made out. We do not find the convictions to be either unsafe or unsatisfactory, as was contended. 85Accordingly, the application of each applicant for leave to appeal against conviction is dismissed.
Representation: Mr Andrew Macrae, SC instructed by Messrs Horvath & Giles for the First Applicant (D1) Mr John Haynes instructed by Messrs Hoosenally & Neo for the Second Applicant (D2) Mr B M Ryan, DPGC and Mr Johnny Chan, SGC of the Department of Justice for the Respondent |