HKSAR v. Cheng Sui Wa
Read the full judgment text of CACC 223/2001 on BabelCite. This Court of Appeal judgment was delivered on 17 September 2003.
1 This applicant seeks the leave of this Court to appeal against conviction and sentence. He was tried before Madam Justice Beeson and a jury in the High Court and on 8 June 2001, he was convicted of eleven counts of conspiracy to defraud, and three counts of knowingly dealing in the proceedings of an indictment offence. He was sentenced on the following day to a total term of nine years' imprisonment.
Cited by 13 cases · Cites 2 cases
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CACC000223/2001 CACC 223/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 223 OF 2001 (ON APPEAL FROM HCCC NO. 186 OF 2000) ____________________________________
_______________________________ Coram: Hon Stock JA, Yeung JA and Suffiad J in Court Date of Hearing: 8 July 2003 Date of Judgment: 17 September 2003 ________________ J U D G M E N T ________________ Hon Stock JA (giving the judgment of the Court): Introduction 1This applicant seeks the leave of this Court to appeal against conviction and sentence. He was tried before Madam Justice Beeson and a jury in the High Court and on 8 June 2001, he was convicted of eleven counts of conspiracy to defraud, and three counts of knowingly dealing in the proceedings of an indictment offence. He was sentenced on the following day to a total term of nine years' imprisonment. The prosecution case 2The essence of the case against the applicant was that banks had been induced to issue letters of credit when the underlying transactions, which had been presented as the basis for their issue, were bogus; that the banks had, on the presentation of bogus documents, paid sums allegedly due under the letters of credit; and that the sums thus paid out were then transmitted, almost forthwith, by the beneficiaries of the letters of credit to those who had applied for their issue. In the case of Counts 1, 6, 8, 9 and 10, Createx International Ltd ("Createx"), of which the applicant was a director and shareholder, was the beneficiary, with Guangnan Holdings Ltd ("Guangnan"), a Mainland company, the applicant for the letter of credit on behalf of its subsidiary Asian Honour International Ltd ("Asian Honour"). In the case of Counts 11-16, Createx was the applicant, and a company called Fountain Datacom ("FDC") the beneficiary. The prosecution case was that letters of credit subsequent to the first in each group were created and utilized to provide funds for meeting the liabilities occasioned by the issue of the preceding documentary credit. 3The key personalities and companies are these:
4The prosecution case was that in or about 1997 Madam Tang asked the applicant to help her to create non-existent business transactions, whereby Createx was to pretend to sell goods to Asian Honour, that the applicant agreed to help, and thereafter created bogus transaction documents showing that quantities of cold rolled sheets were to be sold to Asian Honour. On each occasion Tang applied for a letter of credit using facilities which the parent company, Guangnan Holdings, enjoyed with its banks. What then happened was that the applicant caused the funds paid under the letters of credit, upon presentation of the requisite documents, to such bank accounts as Madam Tang directed: those of Mr Yip, the accounts of FDC, Asian Honour and Guangnan. Createx benefited to the extent of a 0.1% commission, as did Yip. 5So, for example, between October 1997 and February 1998 the applicant, or those acting on his instructions, prepared a sales contract, commercial invoices and other supporting documents which represented that 9,000 metric tons of cold rolled sheets were to be sold by Createx to Asian Honour for a sum of HK$24,412,500. An application was then made by Guangnan (on Tang's instigation) with the use of these documents, and a letter of credit was issued in that sum. The proceeds were paid to Createx, 0.1% deducted by the applicant, and the balance then channelled to a bank account on Tang's direction, through the accounts of persons such as Ms Chiu, Mr Yip, and a person called Chen, a manager of Createx, the funds ultimately finding their way to Asian Honour. The indictment 6The allegation in that example was represented by Count 1 which is framed in a manner typical also of those other counts in the indictment which alleged conspiracy to defraud:
7Counts 6, 8, 9 and 10 were counts alleging conspiracy to defraud along the same lines, that is, causing Guangnan to make applications showing transactions with Createx which were bogus:
8Counts 2, 4 and 7 against the applicant each alleged the offence of dealing with property known or reasonably believed to be proceeds of an indictable offence contrary to section 25(1) of the Organized and Serious Crimes Ordinance, Cap. 455:
These sums were figures that the applicant is said to have caused to have been returned to various accounts directed by Madam Tang. Counts 3 and 5 contained similar allegations against D2. 9The second group of counts, Counts 11 to 16, constituted allegations which, if true, showed the applicant running a similar scheme as had Madam Tang, but this time for the benefit of Createx, in order to show profits for that company. It will be recalled that Mr Yip, who was Madam Tang's husband, ran a business called Fountain Datacom ("FDC"). The prosecution case in relation to the second group of offences was that the applicant asked Yip to assist him in the creation of non-existent business transactions by which FDC was to be shown to be selling goods, telecommunications equipment, to Createx. Createx would apply for letters of credit under which FDC would be the beneficiary, but the proceeds would be re-routed back to Createx, although Mr Yip would keep a 0.1% commission. The assertion was that the applicant, with his staff, then manufactured false cargo receipts, packing lists, commercial invoices and other documents, to support the applications and payments upon them. There were two issuing banks in this second tranche of activity, the Sin Hua Bank and the Nanyang Commercial Bank, as a result of which sums totalling HK$22,043,125 and US$7,098,650 were credited to the accounts of FDC. In two instances the sums were re-routed back to Createx through the bank account of a company called Fu Tai Trading Company of which Yip, the applicant, and the applicant's wife, were the authorized signatories. 10The second group of charges thus alleged conspiracy to defraud, with the conspirators causing Createx to apply for and utilize letter of credit facilities on the basis of false documents purportedly evidencing genuine transactions between Createx and Fountain Datacom and causing the banks to release monies under the letters of credit thus fraudulently to be procured:
The prosecution witnesses 11The applicant was arrested on 15 January 2000, and shortly thereafter made a series of statements which were heavily inculpatory and upon which the prosecution relied. To these we shall return. There was also oral testimony of witnesses on behalf of the prosecution which, if admissible and true, implicated the applicant. We take the essence of their testimony from the summaries thereof provided by the judge in her summing up. 12Mr Fan was a clerk with Asian Honour. He was named on the indictment as a co-conspirator and gave evidence under an immunity. In 1996 Madam Tang became general manager of Asian Honour, and he noticed that she started to apply for more letters of credit in order to increase business flow. She asked him to apply for letters of credit to obtain cash, and provided him with information to this end: cargo details, and the amount she required from the letter of credit, and so on. In the documents thus supplied, there was stated no buyer, and he thought that he was being asked to prepare false documents. He said that when the letter of credit application was prepared, the cargo receipt would be prepared at the same time rather than, as is normal in the case of an honest transaction or application, when the goods had actually arrived. This procedure was followed for all the letters of credit in question. Madam Tang told him that this all needed to be done to inflate the profit of Asian Honour and to obtain cash. 13Mr Ma, an accounting graduate, worked under Madam Tang at Asian Honour. In December 1997, he attended a meeting at which the Deputy Director of the Finance Department of Guangnan complained that profits were insufficient and that they had to be increased by himself and Madam Tang and that this was to be done with the use of letters of credit. Mr Ma became uneasy and in March 1998 tendered his resignation, but Madam Tang tried to mollify him by saying that such things happened in other companies. In due course, however, he resigned. 14Then there was the evidence of a Mr Tsang. He worked as a bookkeeper for Createx under the applicant's direction. His testimony was that books were kept at Createx in an unorthodox fashion and that he wrote vouchers, not from original invoices, but from notes made in notebooks compiled by the applicant. Those notes referred to letter of credit numbers but he, Tsang, never saw any of the documents normally associated with such transactions. He inquired about the underlying documents but was told by the applicant just to write the vouchers, using the handwritten notes from the applicant's notebooks. He thought this unusual as, he said, did the auditors. Tsang's evidence was that he did not believe the transactions to be genuine and that they were no more than a method by which to generate cash flow for the company, and that the applicant had made this clear to him in the course of his work. The interviews 15The prosecution relied heavily in this case upon admissions made by the applicant to the ICAC, in the course of interviews. 16The first video interview took place on the evening of 15 January 2000. It was an interview that lasted some three hours. It is interesting to note that the ICAC told the applicant that he was under investigation for corruption, the assertion being that he, the applicant, had received bribes from Madam Tang for assisting in the creation of bogus transactions for letter of credit purposes, the suggested bribe, it would seem, being the commission that was paid, of 0.1%. It appears that it was towards that allegation that the applicant concentrated his answers, and he was concerned to show that the commission was obtained by Createx and not by him personally. In this context, the applicant explained that he had indeed been approached by Madam Tang. She had said that the company needed cash to assist it in developing its business, and that she in turn needed a reliable friend to enable her to open a letter of credit, and that she would create a cargo receipt, and that when the funds were paid under the letter of credit he was to ensure repayment through various accounts. In the course of the interview the applicant was anxious to state why he agreed to this: first, to provide assistance - it was not right to turn down such a request; second, that the transaction would enhance the banking performance of Createx so as to make the obtaining of credit easier; and, third, to earn commission for the company and not, as had been alleged, for himself personally. In the event, he said, Createx prepared a set of documents based on the letters of credit; and it was agreed that commission of 0.1% would be paid for its assistance. Indeed, he thought that this type of business had been and remained quite popular. 17There is in this interview a reference to Kazakhstan, the relevance of which will become apparent when we turn later to the defence run by the applicant at trial. Here the applicant speaks during the interview of Createx's parent company on the Mainland, Southern Industrial, and how in the past Createx obtained funds for Southern Industrial by the use of letters of credit and of the returning of funds obtained on Southern Industrial's applications; this when Southern Industrial needed funds for border trading between it and a steel production company in Kazakhstan. That had been in 1995 and 1996. At first the deals were real, then later some were not; and in the latter cases it was merely a method to obtain cash for Southern Industrial with the use of what the applicant referred to as 'empty documents'. It was a method, he said, of financing and, since the parent company told him to do it, he regarded it as proper. Many friends of his operated in the same way. He did not think this was defrauding the banks. He accepted that in order to effect repayment to Asian Honour, part of the sums might pass through the accounts of his staff and part through FDC's account. He himself had given instructions to his staff to prepare documents based on the letters of credit, such as invoices and packing lists. Then he was asked this question:
18Similarly, he acknowledged that contracts which he signed for presentation in support of the applications for letters of credit were not real. Time and again when taken through each letter of credit to which the first group of counts related, he made clear that the transactions were not real; that the documents were 'empty', as he called them. He remained concerned to emphasize that the 0.1% was intended for Createx and not for him personally, and was paid for the agreement to help Madam Tang falsely represent that Createx was a buyer and for preparing false documents for her. Then, interestingly, he said this, seeking to suggest that he was not himself engaged in any cheating: that it was Guangnan that cheated the bank, not Createx, for Guangnan 'lied to the bank that there's a transaction which required the bank to open a letter of credit' (item 3472) and that all he had done was to prepare false documents at its request for non-existent transactions. And he added that the bank had been repaid its money. Yes, he knew that the transactions were bogus; he had committed a mistake by attaching too much importance to friendship. Nonetheless, he did not know that what he did should not have been done. "We all knew", he said that, "this business simply involved obtaining of cash by means of letter of credit". (item 3564). 19A second interview took place the following morning (16 January). It is unnecessary for the purpose of this appeal to summarise its content save to point out that towards its end it was interrupted so that the applicant could speak to a lawyer who had arrived to represent him. 20In a third interview of the same day, he confirmed that he had talked to his lawyer. He said that he had used a stamp of Createx's parent company in support of fake transactions and had not informed his parent company, Southern Industrial, what he was doing. It was only if a transaction was real that he had to report the matter to Southern Industrial. It is not entirely clear what the applicant was here saying, but its thrust seems to have been that Madam Tang had wanted to create documentation to show that Asian Honour was selling the cold steel on to Southern Industrial and, to this end, false documentation with the use of this stamp was used. In this interview, towards its end, he said again that he felt that what he did was not unlawful, and that a bank did not care whether a transaction was real or not. 21The fourth and final interview took place on the morning of 17 January. On this occasion, the investigators put to him their suspicion that he had conspired with Yip of FDC to show false transactions by which FDC was the seller of telecommunications equipment so that on the back of letters of credit issued in FDC's favour, funds would be raised and transmitted to Createx; the reverse, in other words, of the earlier letter of credit scam. But before the interview could proceed with its questioning the applicant pressed for an opportunity to tell interviewers about allegations which had been made in earlier interviews that there had been conspiracies to defraud in relation to transactions supposedly entered into by Southern Industrial. The applicant was anxious to impress on the officers that behind such transactions there had been real goods. He provided an account about the importation into the Mainland by Southern Industrial of steel products from Kazakhstan and how payment was made through letters of credit issued by a Mainland bank on the application of Createx in Hong Kong, and that a European bank would advance monies to Createx on the strength of the letter of credit, and the amount thus received would be remitted to the sellers in Kazakhstan in payment of the goods to be exported. 22As for FDC, the applicant said that in the past he had used FDC to handle transportation of goods to and from the Mainland. He admitted, in essence, that, given an absence of circulating funds in hand, he had created false transactions in order that Createx would generate cash flow. He thought, he said, that there was risk attached to the scheme, but his general manager pressed him to go ahead, and he did, securing the services of friends such as FDC to assist. Createx in due course received the funds and with those funds made some investments on the Mainland, and the money was paid back to the bank. He, the applicant, ensured the making of the applications for letters of credit, and Yip of FDC prepared documents. Yip knew that "what we had was a bogus order" (item 210, fourth interview). There were no underlying transactions. Cargo receipts were prepared within the offices of Createx at the applicant's instructions. The goods were never received. For none of the six business deals about which questions were asked and documents examined had any actual business been done. He accepted that in relation to these transactions or supposed transactions, a sum of US$2,340,001 remained unpaid to the banks. There were no account books and no purchase and sales ledgers. 23So the prosecution relied on the evidence of accomplices; on the absence of any sale and purchase ledgers in Createx; on the flow of monies straight back to the alleged purchasers of the goods on each occasion, and the fact that sums were often thus remitted through several accounts; and, of course, on the admissions which the applicant had made that, to his knowledge, none of the transactions to which the letter of credit applications related was genuine. The defence 24The applicant gave evidence. His defence painted a complicated story. In its essence, it was that he had not told the truth to the ICAC investigators because he had been constrained from doing so. He said that there were in truth underlying transactions, but to have revealed that fact to the ICAC would have been to betray the fact that, contrary to Central Government directives issued in 1997, the military on the Mainland were, during the period of the alleged conspiracy, continuing to carry out commercial ventures. 25The applicant, a man aged 47 years at the time of his trial and a person of previous good character, had been a colonel in the People's Liberation Army, and when he left the army he was appointed a director and shareholder of a window company in Hong Kong, Createx, which operated on behalf of Southern Industrial which was part of an extensive investment machine for the military. Createx was established because of difficult foreign currency constraints within the Mainland, and Createx operated as a middleman for international transactions. 26There were in fact, said the applicant, real underlying transactions in relation to the first set of alleged offences. The supplier of the rolled steel was in Kazakhstan. The account, very broadly, was that from 1997 Southern Industrial could no longer obtain import permits, so had to use the offices of Asian Honour to do so. Asian Honour would purchase the goods in Kazakhstan, and once Asian Honour had cleared the goods through customs, and once the goods reached Xinjiang, the cargo would be given to Southern Industrial. However, Southern Industrial required some form of insurance or guarantee in respect of the goods which found their way into the hands of Asian Honour. That was effected by Asian Honour asking its parent company, Guangnan, to open a letter of credit, to the equivalent value of the goods purchased, in favour of Createx. Asian Honour would only be permitted to have possession of the goods in Xinjiang province once Createx was in possession of the cargo receipt; and then the letter of credit would be presented in Hong Kong for payment, and once Southern Industrial had received its goods, the guarantee money would be sent by Createx back to Asian Honour. A further contract had then to be signed for Asian Honour to show to the banks, purporting to evidence the on-sale of the goods from Asian Honour to Southern Industrial. Goods in fact were delivered to Southern Industrial on the Mainland and payment made there in Renminbi. 27As for the evidence of Mr Tsang the bookkeeper, it was, asserted the applicant, untrue. 28The defence in relation to the second set of charges, the FDC letters of credit, was different, and was that a Shenzhen subsidiary of Southern Industrial wanted to import Nokia telephone equipment. Mr Yip's company had imported Nokia equipment from Finland for some time and he seemed a perfect person to effect deals for Southern Industrial, through Createx. What was more, because Yip said that he was able to obtain on the Mainland an import licence at a concessionary rate, it was agreed that he would be responsible for the importation and clearance of the goods within the Mainland. FDC was to be paid in Renminbi once the goods were cleared. But he, Mr Yip, wanted some guarantee lest the Shenzhen company did not pay him. Similarly, the Shenzhen company did not want to pay him in advance lest something went amiss with delivery of the goods. So the solution at which everyone arrived was that Createx would open a letter of credit in favour of FDC, and once the letter of credit was in FDC's hands, FDC would send the goods, and payment would be made in Hong Kong on the letter of credit when the goods were delivered, and when the Shenzhen company paid FDC in Renminbi on the Mainland, the sums recovered in Hong Kong would then be returned to Createx. 29The applicant said that he took the stance which he had with the ICAC because, on the one hand, he wanted to cooperate with them, not least because he thought that Guangnan had been engaged in some corrupt conduct, but, on the other hand, he did not want to reveal the fact that Southern Industrial was still engaged in commercial activity. No one was going to lose financially, so he was not being dishonest. In reality, the transactions existed, albeit not as represented. Whilst he had felt constrained when interviewed by the ICAC, that no longer applied, because:
30Well, as we know, the jury did not believe him; and he was, by their unanimous decision, convicted upon each count. CONVICTION Ground 1: The co-conspirator's direction 31It is argued that the judge failed to deliver an adequate direction to the jury in relation to acts done and things said by others in suggested furtherance of the conspiracy. The evidence about which Mr Wilson QC, who appears on appeal for the applicant, is concerned, is that of Mr Fan, the Asian Honour clerk; Mr Ma the Asian Honour accountant; and Mr Tsang, the Createx bookkeeper. 32The judge referred to the evidence of Fan and Ma. What she said was this:
33The complaint is that the judge should have directed the jury, but did not, that they could only have regard, as against the applicant, to evidence of things said or done outside the applicant's presence once satisfied that there was other evidence proving his part in the conspiracy. Mr Wilson suggested, in answer to a question from the Court, that the form of direction might have run, broadly, along these lines:
34A formula along those lines strikes us, with respect, as importing an artificial exercise, for once a jury is satisfied by other evidence that a conspiracy is proved against a defendant, there is hardly a need to look to the evidence of things said and done in the applicant's absence. See: Ahern v The Queen [1988] Vol. 165 CLR 87, 95. Yet that objection to such a formula, does not deal with the point in issue, for it goes really to the question of the standard of proof of the evidence from the independent source, and not to the question, which we must address, whether it is for the trial judge or for the jury to decide whether proof of the requisite standard exists. 35Mr Reading's written submissions to this Court answered the applicant's complaint by arguing that the evidence of the co-conspirators did not form a substantial part of the case against the applicant, and that there was indeed evidence independent of theirs in the form of the applicant's confession to the ICAC and - he might have added - in the inferences to be drawn from the documentary evidence; in particular, the very fact that funds were returned to the applicants for the letters of credit as soon as they had been received by the beneficiary. This argument entirely missed the point which the applicant raised, which is whether a jury is to decide the same point as the judge decides when he is required to determine the issue of admissibility, albeit that the judge decides it on a conditional and prima facie basis. 36We shall assume for the purpose of this appeal, since it has not been suggested otherwise, that the evidence of the witnesses Fan and Ma was evidence which was adduced to show not only the fact of a conspiracy, but the applicant's participation in it; although in relation to the evidence of Mr Tsang, we fail to see how that evidence falls for consideration under this rubric, since his evidence was direct evidence of the applicant's participation, of the applicant's statement to him that false documents were created to generate cash flow for the company. 37The point at issue was directly addressed by the High Court of Australia in Ahern v The Queen [1988] 165 C.L.R. 87 at 100:
38The Court reviewed the approach in the United States, Canada, New Zealand, and elsewhere, commenting, as to England, that little attention seems to have been given there to the problem and that there the position was unclear. The Court concluded, however, at page 103, that:
39That conclusion was buttressed by reference to the type of difficulties into which judges and, more particularly, juries would be led by directions to a jury to adopt a staged approach, as must a judge, and a staged approach, to boot, importing different standards of proof. That difficulty is well illustrated, we welcome to suggest, by the very direction which the trial judge in Ahern had in fact delivered; and we see it at page 88:
40In so far as Ahern noted that the issue had received little attention in England, that comment must now be viewed in the light of the decision in R v Jones and others [1997] 2 Cr App R 119 in which the Court of Appeal in England had occasion to study Ahern, albeit that it does not seem to have been suggested by counsel for the applicant in Jones that the judge ought to have left for the jury's determination the same preliminary issue as to independent evidence of conspiracy as is decided at the admissibility stage. Nonetheless, the suggestion made now by Mr Wilson, which he says does no more than echo a well-established approach, does not seem to have been made by counsel, or by the court, in Jones. 41The matter is summarized thus in Cross & Tapper on Evidence, 9th edition, page 561-562:
See also Blackstone Criminal Practice 2003 F16.50. 42The approach adopted in Ahern, with which we respectfully agree, is also the law in Hong Kong. See R v Au Shui Yuen Alick [1993] 2 HKC 219; and Bruce and McCoy "Criminal Evidence in Hong Kong" V-1151. 43One might add this, that even if it were for a judge to leave a jury to determine the preliminary question which Mr Wilson says is within the jury's province to decide, that jury would perforce, for the reason advanced at [34] above, have only to be satisfied that there was prima facie, rather than conclusive, independent evidence of the conspiracy and of the applicant's participation in it. In this case, it is as plain as can be that the jury could have come to no other determination but that such prima facie evidence existed. Not only was there evidence of the applicant's admissions, very detailed and repeated admissions, but also documentary evidence which suggested a conspiracy to which those running Createx in Hong Kong must have been a party. 44For these reasons, this ground fails. Ground 2: The Ghosh direction 45This was a case in which, not surprisingly, the judge delivered what has become known as the Ghosh direction; in other words a direction which required the jury to ask, first, whether the defendant's conduct, such as they found it to be, was dishonest by the standards of reasonable and honest people, and, if so, whether the defendant himself must have realized that what he was doing would be regarded by such people as dishonest. 46The complaint is that the judge, having chosen to direct the jury more than once as to the applicable law, erred on the majority of such occasions, so that such accurate and full Ghosh directions as she did give were obscured by the defective directions. In particular, it is said that the effect of at least one of the directions, if not more than one, was to tell the jury that, since it was a fact that the applicant must have appreciated that reasonable people would so regard his conduct, the only matter of which they had in the event to be satisfied was that the accused's acts were dishonest by the standards of reasonable persons. 47That a Ghosh direction was required is beyond doubt. The applicant's defence was that whatever may transpire to be the position in respect of the strict approach of banks to underlying transactions, he did not believe that he was doing anything wrong. In the first instance, what he did was for the good of the company and was common practice, he said in his interviews; and in his oral testimony he said that there were true transactions ultimately underlying the letters of credit and that therefore he was not acting dishonestly. 48The first misdirection, says Mr Wilson, was when the judge said in relation to count 8 the following:
Then this when summarising count 10:
This, it is argued, is where the judge was actually telling the jury that the accused must, as a fact, have realized that his conduct would be viewed by others as dishonest. 49Then there was another suggested error when the judge was telling the jury what count 14 alleged:
50And a little further on, when summarizing the essence of count 15:
and then again when providing a précis of count 16:
51The point taken is, with respect, not realistic, and pays little regard to context, to style, and to the whole of the summing up. The suggestion that the judge was telling the jury that there was but one part of Ghosh for them to consider, namely, that of the view that might be taken by the honest and reasonable person, does not fit at all with what the judge was, in truth, saying. 52Well before any of these particular sentences which were delivered in the midst of sequential summaries of the allegations for each count, when dealing with count 1, the judge said:
Immediately before the passage complained about in relation to count 8, the judge had said:
The same phrase was used time and again in relation to the summary of other counts. It is difficult to see how there could have been proved an intention in their minds to defraud the banks unless they realized that what they were doing was dishonest. These various passages which counsel for the applicant has highlighted are all passages within the context of summaries of the essence of each count, and occur after the first correct Ghosh direction, so that it must have been obvious that what the judge was doing when mentioning each subsequent count was to paraphrase, rather than to regurgitate, the precise formula. 53What is more significant is what she said once she had completed the summary of each count, and went on specifically to address the jury about the term "dishonestly". It is worth setting out in full what she there said:
54Then yet again at page 28, when dealing with the offence of dealing in property the proceeds of an indictable offence:
55If all that the jury had to consider was the attitude of the reasonable and honest person to the applicant's conduct, and that his own knowledge of the attitude was asserted by the summing up as a given, then these remarks of the judge at page 68 of her summing up of the applicant's evidence would have been odd indeed:
56In so far as Mr Wilson interprets the sentence which, at page 17, reads:
as a direction or suggestion that that was an established fact, that does not, as we have demonstrated, sit with the effect of the summing up as a whole. The reality is that this was the style in which the judge addressed the jury; and the words "and it must also be proved that" were clearly implicit, and were obviously taken be implicit, in the sentences thus spoken. 57We note also that there was no complaint raised by counsel at the time of trial about this aspect of the summing up. The relevance of that is this, that had the manner of speech used by the judge been such as to create the impression which is now asserted, it would have been such an extraordinary assertion by the judge that we have no doubt but that counsel for both sides would have raised the issue with the trial judge, for it would surely have left the jury with no alternative but to convict. The fact of the matter is that the impression was not created, and the assertions which found this ground are not made out. Ground 3: The lies direction 58This is yet another case in which a trial judge's treatment of suggested lies by a defendant forms a ground of appeal. It illustrates, yet again, how important it is for trial judges to canvass with counsel, before any summing up, whether a lies direction is required and, if so, what the judge is minded to say to the jury on the issue, so that the matter can properly be considered. The situation has come to such a pass that this Court now finds that the lies direction, or its absence, almost invariably forms a ground of appeal: if a direction has been given, that it should not have been; if it has not been, that it should have been; and if not that, then something in between, that it has been given but not in the form in which it should have been given. Sometimes, of course, the complaint is justified, often not. Be that as it may, it would we suggest be prudent for the issue to be discussed in every case before counsel address the jury, so that a judge can be sure whether the prosecution is going to mention lies and if so, then which lies and to what purpose; whether as suggested support for the prosecution case or whether merely going to credit; and whether, in any event, there is suggested to be a risk that the jury might utilise lies for a non-permissible purpose. 59As far as we are aware in this case, the issue was not canvassed. Counsel for the prosecution did not in his closing address suggest that lies supported the prosecution case. Both counsel before us say that there was no need in this case for a lies direction. On one view there may be something in that, although in the context in which the judge gave her directions, we do not think that she can fairly be criticised for embarking on the subject. The argument against the lies direction is based on the fact that this was a case in which the rejection of the applicant's account in evidence, an account which was contradicted by that which he gave to the ICAC, by the convoluted routes the monies took in finding their way back to those who had applied for the letters of credit, and by other witnesses, would in reality leave the jury with little choice but to convict. (See Yuen Kwai Choi v HKSAR, FACC 6 of 2002, as yet unreported, 9 April 2003). It is correct to say that even the account given by the applicant to the ICAC asserted that he, the applicant, did not think, on that account, that he was acting dishonestly, but if the essential story in the interviews was the truth, then given the admission in those interviews of knowledge of bogus transactions and of complicity in the forging of documents, that is a contention that was never going to be accepted. The prosecution tactic of relying upon lies as supportive of guilt, rather than as simply showing that the defence evidence is untrue and that the evidence led by the prosecution should therefore be accepted, was not, we are told, a tactic which was adopted in this case; and so it is said that no lies direction was necessary. On the other hand, it might be argued that there was some risk that if the jury found that the defence as run in oral testimony was a lie, it was a lie that had to be invented because the applicant knew full well that his protestations of no dishonesty to be found amongst the inculpatory remarks in the interviews were themselves false. Nonetheless that is not argued, and we see that in his closing address, counsel for the prosecution approached the case on the footing - which was not surprising given the nature of the clear admissions that documents and transactions were bogus - that the interview statements constituted what were in effect full confessions, quite contrary to the oral testimony of the applicant. 60The judge's directions as to lies came at that stage of the summing up when the judge turned from the prosecution evidence to that of the applicant. She reminded the jury that there had been no obligation for the applicant to give evidence; that he had no obligation to prove anything at all; indeed, that if the jury were to find that what he had said was or might be true, the jury was then under an obligation to acquit him. She then said that even if they did not believe any of this evidence "that still does not take away the burden upon the prosecution to make sure of [his] guilt." (Tr p 69F). 61The direction as to lies follows shortly thereafter, but we will start with the passage preceding those about which complaint is made, because we think that they provide a degree of context:
62The grounds of appeal relating to lies make the following complaints:
63We are somewhat puzzled by this complaint. The judge had there just referred to the applicant's own contention that when he, the applicant, had spoken at considerable length to the ICAC, much of what he had said, over a period of four extensive interviews, was a lie. On either view of the case, whether the prosecutor's or the applicant's, the applicant had at some stage told lies and, on any view, major and deliberate lies; and the judge had just referred to the fact that at the very heart of the applicant's defence was an assertion that he had not told the truth to the ICAC. It was, we think, very natural for the judge to go on to say to the jury that even if they found that he, the applicant, had lied in the course of his testimony, that in itself was not to be treated by them as evidence of guilt - it was, she said never to be treated as evidence of guilt. That seems to us to have been a fair thing to have said; a statement that was at no stage greeted with any comment or objection or correction by very experienced counsel for the applicant; and one indeed wonders whether in these circumstances there may not have been an objection had the judge not said something of the sort. 64The reference to the omission of one or two limbs of the Lucas direction is a submission which seems, with great respect, to be divorced from the case at hand. A direction that a lie had to be shown to be deliberate and material could only possibly have been relevant if it was suggested that the lie could in some way be used against the applicant, and the very point the judge was making was that it should not be so used; but, more pertinently, it is difficult to see how the lies to which the judge could only have been referring, which is either the lies told in interview or the lie about some indirect underlying transaction told in oral testimony (and we think it clear that it was the latter), could have been other than deliberate and highly material. 65There is no requirement at all to give a full Lucas direction, as it is called, whenever lies are mentioned in a summing up. Indeed, R v Chong Chak On [1996] 1 HKC 152, reminds us that:
and, as to the Lucas criteria, including the two which were omitted and gave rise to this ground:
Nor would the suggested inclusion of the two elements omitted have accorded with the directions which the Court in HKSAR v Mo Shiu Shing [1999] 1 HKC 43, at 57, suggested as a formula for the type of direction which might generally be given. 66It is said then that the judge did not indicate to which lies she was referring, so that it is possible that she was referring to lies told in oral testimony and that, if so, she did not warn the jury that a lie told in court could not strengthen the prosecution case and went only to credibility. We note that the judge did not say in terms, as she ought, we think, that if the applicant lied but did not lie for an innocent reason, that could support the prosecution case. Such a comment completes the formula, and to that extent the formula provided by the judge was incomplete. We were at one stage concerned about it, lest it left the impression that if a lie were proved to have been offered for a non-innocent reason then it spelt guilt; but, as Mr Reading points out, the judge made it clear that in no circumstances did a lie do that; and, in any event, this is not a concern which Mr Wilson adopts. 67The contention that lies told in court can go only to the issue of credibility and not in actual or positive support of the prosecution case does not, in our judgment, represent the law. We canvassed in the course of submission the example of alibi evidence, and we see from the seminal case of R v Turnbull [1977] 1 QB 224 itself the observation of Lord Widgery CJ, at page 230:
68So, too, we note that Lucas does not support the proposition for which the applicant now contends:
69The same sentiment goes back as far as Broadhurst v The Queen [1964] AC 441, 457, and probably further back still:
This is Mr Wilson's point. But, immediately thereafter, Lord Devlin, delivering their Lordships' reasons, said:
70And much more recent authority also makes clear that lies told in court may be used beyond mere issues of credibility but in support of the prosecution case. See in particular R v Burge and Pegg [1996] 1 Cr App R 163 where, at 173, the Court of Appeal in England specified the circumstances in which a Lucas direction was usually required, one being:
71As to the third limb of the grounds which relate to the lies direction, we are satisfied that the judge could not possibly have been referring to the applicant's evidence that his confessions to the ICAC had been lies. This would have made no sense at all; and no one could possibly have understood the judge to be referring to that evidence in the passage of the summing up which contains the statement that the mere fact that a person lies is not in itself evidence of guilt. Ground 4: The dealing counts 72Here it is said that these counts were dependant upon convictions on the conspiracy counts, so that if the conspiracy counts are to be quashed, so too must the dealing counts be quashed. That is obviously correct. Fresh evidence 73The applicant was arrested on 15 January 2000 and tried in May and June 2001, after a trial which lasted 46 days. Notice of Appeal in this case is dated 30 June 2001. 74By Notice of Motion dated 23 June 2003, the applicant seeks leave to adduce fresh evidence pursuant to the provisions of section 83V of the Criminal Procedure Ordinance, Cap. 221. 75The evidence which it is sought to put before the court are the declarations of two persons, each dated 20 August 2002, made in anticipation of the applicant's appeal; that is, made more than two and a half years after the applicant's arrest, and one year and two months after his conviction. 76The declarations are those of Mr Lin Yue Xin and of Mr Feng Shou. We have looked at the evidence de benne esse. 77Mr Feng lives in Guangzhou City and his declaration was made on the Mainland. He says that he was head of the Five Mines Department of Southern Industrial and asserts that between November 1997 and August 1998, Southern Industrial entered upon five contracts for the purchase of steel from Kazakhstan and that these contracts were signed by himself. These are said to support the applicant's case that there were, albeit indirectly, genuine contracts supporting the applicant's case in relation to the first set of alleged conspiracies. 78Mr Lin's declaration deals with the second set of transactions, in other words, the suggested existence of true contracts to purchase telecommunications equipment. He is or was employed by Southern Industrial and he lives just across the border in Shenzhen. He says that between January 1998 and January 1999, Southern Industrial and Createx signed five contracts for the purchase of telephone equipment. He exhibits the five contracts and he has signed each, as has the applicant. This evidence is said to support the applicant's case in relation to the second set of conspiracies, that is, in relation to count 11 to 16 inclusive. 79Section 83V(2) of the Criminal Procedure Ordinance, Cap. 221 provides that:
80The applicant falls very far short of overcoming the hurdle which is presented by section 83V(2)(b). 81In relation to Mr Feng we are told in an affirmation made by the applicant and dated 23 June 2003, that Feng actually attended and gave evidence on the applicant's behalf at another trial which the applicant faced in January 2001 in the District Court. He says that he intended to invite Mr Feng to attend the High Court trial as well, but that Feng could not be reached. This in itself sounds hollow, since one would imagine that in January 2001 the applicant and his advisers would have known full well that a High Court trial was imminent and would have secured Feng's attendance. There is no evidence whatsoever from the applicant's former legal advisers as to any attempts made to contact Feng. In the event, says the applicant, someone else to fulfill the same intended purpose was asked to attend to give evidence at his High Court trial, a Mr Huang. He actually came to Hong Kong to give evidence but it was then discovered that he was not able to be of assistance, and he was not called. The affirmation is then silent as to any steps taken to contact Mr Feng. There was no application at trial for an adjournment so that he might be found. Nor did he come to this hearing so that that issue, or any other, could be determined. There is no explanation given for his absence. 82As for Mr Lin, and why he was not called to give evidence at trial, the applicant's affirmation says that in May 2001 Lin came to Hong Kong to give evidence at the High Court trial but that he told the applicant's lawyers when interviewed that "he could only mention about general business relations between Southern Industrial and Createx and because of 'sensitive issues such as cargo import customs declarations, money exchange ... and development of communication items, he would try to avoid as far as possible and would not give any detailed information.'" So, according to this affirmation, his legal advisers took the view that since he could not speak in a frank manner, he would not be called. There is no confirmation about this from the legal advisers, and no suggestion that they or the applicant contacted Southern Industrial to seek the same freedom for Mr Lin to testify as had allegedly been conferred by Southern Industrial on the applicant himself. Now, however, it is suggested that Mr Lin has been provided with the green light by Southern Industrial which had previously been denied him. There is no evidence from Southern Industrial to support any of this. 83We informed Mr Wilson that we were not prepared to act on the basis of the declarations or affirmation. If the applicant wished to press the application, it was for him to call evidence if he so desired. As a result of this intimation, Lin testified before this Court. The questions were directed to the issue of availability at trial, rather than to the authenticity of the documents which it would be intended to be produced. 84We do not believe Mr Lin's testimony. He said that when he came to Hong Kong in 2001 to give evidence, he had not told his supervisor at Southern Industrial what it was he was coming for, and that he himself was not aware of the subject matter specifically. This is, in the light of the history of the matter, not credible in either respect. He then said that he was contacted on the second day of his visit to Hong Kong by his supervisor who told him that he was not to tell the court about the matter. How the supervisor came to know about the matter and why he would prevent the witness from being free to speak when the applicant had been given permission, is not explained. There is no suggestion that the lawyers, faced with this blockage from Southern Industrial on a matter of suggested importance, then contacted the Southern Industrial to find out what was going on and to persuade them to change their minds. There is again no evidence from the lawyers to support any of this. The problem was not raised at trial. The witness said in answer to questions from this Court that once he had been prohibited from giving evidence at trial he telephoned the applicant, who was then on bail, and told him what had happened. The applicant's response was, in effect, to shrug his shoulders and say that there was thus no alternative; in other words, nothing to be done. This, too, is not credible. 85The fact is that there exists nothing approaching a reasonable explanation for not calling the evidence of either Feng or Lin. Mr Wilson has sought to persuade us that, nonetheless, the evidence should be admitted and on this footing a new trial ordered, because, he says, we are not precluded by the terms of section 83V(2) from admitting it even in the absence of a reasonable explanation. The discretion, he says, is at large and he cites a number of English cases for that proposition; in particular R v Pendleton [2002] 1 WLR 72; and R v Cairns [2000] Crim L R 473. The statutory provision which governed the approach in those cases are different from those in Hong Kong, in that the failure to provide a reasonable explanation for not adducing evidence at trial is couched in England as merely a matter to which the court is to have regard in deciding whether or not to receive fresh evidence; although we see from the commentary to Cairns by Professor Sir John Smith the suggestion that, under legislation which accorded with the terms of Hong Kong's present section 83V, the court still maintained power to admit evidence if it thought it necessary in the interest of justice so to do. 86One notes the type of case illustrated by Pendleton and Cairns, where there existed compelling reason for the admission of new evidence; in the first case a reference by the Criminal Cases Review Commission, and in the second a decision made in the light of new and exculpatory forensic evidence. Each case must be viewed in its own light, and the light we have in this case is of evidence which if credible must have been thought at the time to have been important by those representing the applicant. Yet no steps were taken to find Feng, and none to persuade Southern Industrial to relent from its suggested reluctance to permit Lin to say what he wished. In the case of Feng he has not appeared before us, and we have no confidence whatsoever in the veracity of any of the information supplied in his regard. In the case of Lin, he is not, we adjudge, a witness of truth, and we do not accept that he was precluded by the company from telling whatever he knew. This in itself casts grave doubt on the authenticity of the documents to which he speaks. In any event, the documents which the applicant now seeks to produce were presented to the jury bearing the applicant's signature, and his evidence about them was not accepted. 87It is against this background, and the cogent evidence against the applicant at trial, that we are asked to set aside the deliberations of 46 days of trial and order a fresh trial. We are satisfied that it is not necessary or expedient in the interest of justice to admit the evidence and we do not in any event deem it evidence likely to be credible. Accordingly, the application to adduce fresh evidence is refused. Conviction: Conclusion 88It follows from the analysis which we have conducted and the reasoning which we have provided that the application for leave to appeal against the convictions must be dismissed, and we order accordingly. Sentence 89The judge sentenced the applicant as follows:
She ordered the sentences for the first group of offences to run concurrently. She ordered the sentences on the second group of offences (dealing) to run concurrently with each other, and concurrently with the sentences for the first group; thus far a total of four years' imprisonment. She then ordered the sentences on the third group of offences (the FDC conspiracies) to run concurrently, but consecutively to the sentences on the other groups, making a total of nine years' imprisonment. 90In her sentencing remarks, we find the following points made by the judge:
91The judge said that she thought that the overall global sentence for a case of this kind before mitigating factors were taken into account, was one of ten years' imprisonment. In the event, in view of the mitigating factors, which were, it seems, his clear record - which, as she said, in a case of this kind, counted for not a great deal - and the fact that he did not benefit himself from the offence, she settled upon a global term of nine years. 92It is said by Mr Wilson that the judge was wrong to suggest that this was an abuse of trust case. Mr Reading tended to agree, pointing out that abuse of trust cases are classically those in which the trustee employee has set out to cause loss to his employer; and that this was not such a case. In that sense we agree, but we rather doubt that the judge meant quite that when she made her comments. The comments seem to be a reference to trust being placed in an employee to behave honestly on the company's behalf and not dishonestly, even if supposedly for the company's benefit. But it is true that this was not a classic breach of trust case, and that there is no conclusive evidence as to the extent of knowledge of those in positions superior to the applicant as to what was going on. However, Mr Reading has drawn our attention to parts of one of the interviews in which the applicant was telling the ICAC officers how it was thought that the company could be helped to develop and that a Board of Directors meeting was held and that the applicant thought there was a risk in carrying out a plan to obtain monies through letters of credit, but that his general manager "insisted to go ahead ... to do it". Although we note the comment by the applicant in an interview, and to which we refer at [20] above that Southern Industrial did not know what he was doing, the context may be limited to the Asian Honour transactions or even to one aspect of his conduct. In the end, we are not in a position to determine how much Southern Industrial knew about what was going on, and Mr Reading does not suggest that they had no knowledge of it. There is no statement from them, as far as we are aware. On balance therefore, one should give the benefit of the doubt in this particular regard to the applicant. 93The sum outstanding to the Bank of Tokyo-Mitsubishi has since sentence been repaid and it is a matter which we must take into account. The reason that it had not been repaid by the time of trial was that as a result of a restructuring exercise, payments to the banks were frozen. Be that as it may, the freeze has been lifted since, and the result is that there is in the event no loss to the banks. This is a new and material factor to be taken into account, although it has limited impact. The evil of frauds such as these are the attack on the integrity of the letter of credit system, a system which is the lifeblood of commerce, and the substantial risks to which banks are put by the absence of underlying security. 94The other factors upon which Mr Wilson placed emphasis are either matters that the judge took into account or are suggestions with which we do not agree. In the former category is the fact that the applicant did not himself profit from the frauds. In the latter is the argument that the sentences should have run concurrently. The two sets of offence were quite separate, one at the instigation of Madam Tang for the benefit of Asian Honour or Guangnan; the other at the applicant's own instigation, entirely for the benefit of his own company. 95We think that the sentences imposed for the individual offences were correct. The only question is the totality especially in the light of the new factor to which we have referred, namely the full repayment, which was not the position when the judge came to pass sentence. We think that in the result the appropriate overall sentence in this case is now one of eight years' imprisonment; and we shall accordingly grant the applicant leave to appeal against sentence, treat the hearing of the application as the hearing of the appeal; and set aside that part of the order of Beeson J which ordered the sentences on counts 11 to 16 to run wholly consecutively to the rest and we shall substitute therefor an order that they shall run consecutively to the extent of four years, with the balance to run concurrently, making a total of eight years' imprisonment.
Representation: Mr Martin Wilson, QC leading Miss Catherine K K Wong instructed by Messrs Tai, Mak & Partners for Applicant Mr John Reading, SC, DDPP and Mr Peter Cahill of Department of Justice for Respondent |
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