HKSAR v. Lee Kwok Wing Kevin

CACC000329/2000

CACC 329/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 329 OF 2000

(ON APPEAL FROM HCCC NO. 234 OF 1998)

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Coram: Stuart-Moore V-P, Mayo V-P and Keith JA in Court

Date of Hearing: 10 May 2001

Date of Judgment: 26 June 2001

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1.The Applicant was charged on an indictment containing 18 counts. He was tried by Verina Bokhary J and a jury in the Court of First Instance. He pleaded not guilty to all counts. However, after a trial lasting many weeks, he was convicted by unanimous verdicts on all counts (save for count 16, on which the jury could not agree). He was sentenced to terms totalling 6 years' imprisonment in all. He now applies for leave to appeal against his convictions.

An overview of the case

2.The charges against the Applicant arose out of his employment by Rockefeller & Co. (Far East) Ltd. ("Rockefeller"). Rockefeller had originally been incorporated in Bermuda, but it was incorporated in Hong Kong in July 1993. Rockefeller's business involved the management of investors' funds.

3.The Applicant first worked for Rockefeller in September 1990. When it was incorporated in Hong Kong, he became its managing director. He was responsible for managing Rockefeller's securities' portfolios through a number of investment funds. The conduct on his part which eventually led to him being charged first to came to light in April 1996 when the Securities and Futures Commission detected unusual trading in the shares of a particular company. Rockefeller's parent company carried out an internal investigation, and in August 1996 the Applicant was suspended from his employment. The ICAC then conducted its own investigation, during which the Applicant was interviewed on a number of occasions. In those interviews, he made what the prosecution contended to be a number of admissions of corruption and fraud.

4.The 17 charges on which the Applicant was convicted fell into three categories:

(i) He was alleged to have accepted bribes totalling about $40m. for causing Rockefeller to purchase through its investment funds shares in various listed companies. These were companies with only a small capitalisation, and whose shares would not usually be purchased by Rockefeller for inclusion in its investment funds. The bribes were paid by persons with a controlling interest in those companies or by brokers engaged in the placement of the shares. Thus, 11 of the charges which the Applicant faced alleged that he had accepted advantages as an agent (counts 1, 2, 4, 6, 8, 9, 10, 11, 15, 17 and 18), and one of the charges (count 14) alleged that he had conspired with various persons to accept advantages as an agent.

(ii) He was alleged to have offered bribes to the regional manager of a company incorporated in Singapore for causing that company to purchase shares in a number of the companies to which the charges in category (i) related. Thus, three of the charges he faced alleged that he had offered advantages as an agent (counts 3, 5 and 7).

(iii) He was alleged to have conspired to cause Rockefeller to sell shares in its investment funds at an undervalue and to have channelled the difference between the market price and the sale price of the shares into a company controlled by him. Thus, two of the charges he faced alleged that he had conspired to defraud Rockefeller (charges 12 and 13).

The Applicant did not give evidence at the trial, and no witnesses were called on his behalf.

The voir dire

5.In the course of the internal investigation conducted by Rockefeller's parent company, a number of documents were provided by the Applicant to Mr Colin Moore, one of the parent company's senior managers. Those documents were passed to the prosecution, and the prosecution proposed to produce them as exhibits in the trial. The Applicant objected to their admissibility on the ground that they had been obtained from him unfairly, because improper pressure to assist the internal investigation had been brought to bear on him. The nature of that pressure was summarised in a document prepared by the Applicant's lawyers which was handed to the judge. Since the admissibility of the documents provided by the Applicant was thought to depend on whether the Applicant had been subjected to such pressure, a voir dire was held before the jury was empanelled.

6.Mr Moore was not available to give evidence in the voir dire. Accordingly, there was no opportunity for the Applicant's counsel, Mr Lawrence Lok SC (who continues to represent the Applicant on this application), to put to Mr Moore the allegations which the Applicant was making. However, the Applicant elected not to give evidence in the voir dire, and there was therefore no evidence before the judge to the effect that the Applicant had been subjected to the pressures referred to in the document handed to the judge. In the absence of such evidence, the judge ruled that the documents provided by the Applicant were admissible. Mr Lok does not complain about that ruling.

7.However, Mr Moore had become available to give evidence in the course of the trial. Prior to his evidence, Mr Lok requested the judge to re-visit the ruling she had previously given. He wanted to cross-examine Mr Moore in the absence of the jury, with a view to submitting in due course that, in the light of such evidence as Mr Moore gave, the judge should now rule that the documents were inadmissible. The judge declined to permit Mr Moore to be cross-examined in the absence of the jury.

8.Mr Moore was subsequently cross-examined by Mr Lok in the presence of the jury. The allegations which he put to Mr Moore were that the Applicant had been told that (a) he could not leave Hong Kong until he had deposited $3m. into an escrow account, (b) his wife would be informed of an extramarital affair which he had been conducting if he did not co-operate fully with the investigation, (c) the matters to which the investigation related would not be reported to any law enforcement agency, and (d) his failure to be completely frank with the investigators initially had not reflected well on him. We were told that these were the same allegations contained in the document handed to the judge at the beginning of the voir dire.

9.Mr Moore accepted that the Applicant had been told that his failure to be completely frank with the investigators initially had not reflected well on him, but he denied the other allegations put to him. Although Mr Lok had had the opportunity to cross-examine Mr Moore, he did not then ask the judge to re-visit her ruling in the voir dire in the light of Mr Moore's evidence.

10.The principal criticism of the judge is that she should have permitted Mr Moore to be cross-examined in the absence of the jury. Cross-examining him in the jury's presence was no substitute, because Mr Lok said that he would have cross-examined Mr Moore more forcefully and with greater emphasis had he been cross-examining Mr Moore in the jury's absence. Thus, the judge was denying herself material which would have enabled her to re-visit her ruling in the voir dire in an informed way. Moreover, the judge's ruling prevented Mr Lok from having two opportunities to cross-examine Mr Moore.

11.We do not think that the course which the judge took resulted in any unfairness to the Applicant at all. It is extremely unlikely that a more vigorous cross-examination of Mr Moore would have resulted in him giving different evidence or rendering his evidence less credible. It is true that Mr Lok had just the one opportunity to cross-examine Mr Moore, but that point cuts both ways. Any cross-examination in the absence of the jury could have prepared Mr Moore better for a later cross-examination in the jury's presence.

12.A secondary criticism of the judge is that her refusal to "re-open the voir dire" deprived the Applicant of the opportunity of giving evidence in the voir dire. This argument proceeds on the assumption that, although the Applicant elected not to give evidence when the voir dire originally took place, he might have done so if the voir dire had been re-opened to take the evidence of Mr Moore in the jury's absence. We are not prepared to make that assumption. If the Applicant had not been prepared to go into the witness box to make his allegations when he knew that Mr Moore was not going to be called to challenge them, it is inconceivable that he would have elected to give evidence when Mr Moore was there to rebut them.

13.Where findings of fact are made at the conclusion of a voir dire, as a result of which certain evidence is ruled to be admissible, the judge is obliged to re-visit that ruling in the course of the trial if new evidence emerges which might affect the correctness of the ruling: see R. v. Watson [1980] 2 All E R 293 and R. v. Chu To Chung [1995] 1 HKC 678. It is true that the judge did not re-visit her ruling in the voir dire following Mr Moore's evidence in the trial. She cannot be criticised for that since Mr Lok did not ask her to. But had she done so, her conclusion would inevitably have been the same. Without any evidence from the Applicant himself in the voir dire, Mr Moore was the only source of evidence to support the allegations set out in the document handed to the judge. The one admission which he made could not possibly by itself have justified ruling the documents inadmissible. There was therefore no evidence whatever which was capable of supporting the argument that the circumstances in which the documents had been obtained rendered them inadmissible.

14.We should add that we rather doubt that it would have been open to the judge to exclude the documents merely because they had been unfairly obtained. The evidence to which the voir dire related was not evidence of admissions to which a unique regime governing admissibility applies. Apart from evidence of admissions, evidence which has been unfairly obtained is admissible, subject only to the court's discretion to exclude it if its prejudicial effect outweighs its probative value. However, it is unnecessary for us to elaborate on this aspect of the case any further in view of the reasons we have already given for rejecting the ground of appeal based on (a) the judge's refusal to permit Mr Moore to be cross-examined in the absence of the jury and (b) the judge's failure to re-visit the ruling she had given in the voir dire.

The judge's summing-up

15.In a trial as long and as complicated as this, it was necessary for the judge to prepare her summing-up with care. The structure of her summing-up was as follows. She commenced by giving the jury conventional directions on matters such as their respective functions and the burden and standard of proof. She then directed the jury as to the ingredients of the offences with which the Applicant had been charged. She then analysed the particulars of the various charges which the Applicant faced. She then commented on some of the points made by Mr Lok in his closing address to the jury. Finally, and this constituted the bulk of her summing-up, she summarised the evidence relating to each count. Her summary on some counts included reminding the jury of what had actually been said by the Applicant in his interviews. Her summary on other counts involved simply telling the jury where, in the transcripts of the interviews which the jury had, the jury could find the relevant passages.

16.The criticism which is made of the summing-up is that it lacked the balance which a fair summing-up ought to have in that the Applicant's case was not adequately explained to the jury. In short, what is said is that when the judge addressed each count separately, she summarised in meticulous detail the evidence on which the prosecution relied to establish the Applicant's guilt, but did not at the same time say, even if only in a sentence or two, what the Applicant's case was - whether the Applicant's case was based on what he had said in his interviews, or on such alternative view of the primary facts which Mr Lok advanced in his closing address. To the extent that the judge commented on some of the points made by Mr Lok before she examined each of the counts, that is said to have been inadequate, because the jury needed the judge's help in (a) relating those remarks to the particular counts to which they were relevant and (b) identifying the Applicant's case on each count.

17.In order to evaluate this argument, it is necessary to consider each of the counts separately. That is a time-consuming exercise, but it is not one which can be avoided. We trust, therefore, that we shall be forgiven for producing a judgment of considerable length, but we have not been able to devise an alternative approach. We have considered the first few counts at greater length than the others, since the pattern of the Applicant's behaviour becomes clearer as we go through the indictment.

Count 1

18.In count 1, the Applicant was charged with accepting an advantage as an agent. The evidence which the prosecution led was as follows:

(i) AWT World Transport Holdings Ltd. ("AWT") was a company listed on the Hong Kong Stock Exchange. Placing agents had been engaged to find purchasers for a block of shares in AWT.

(ii) In that placement exercise, Rockefeller purchased 12m. shares in AWT for $21m. The shares were for the Pioneer Fund, which was one of the investment funds which Rockefeller managed for its clients. It was on the Applicant's instructions that Rockefeller had purchased the shares.

(iii) Two days after Rockefeller's purchase of the shares, the Applicant sent a fax to Alfred Lam, the Chairman and Managing Director of AWT. He asked Alfred Lam to remit certain funds to a particular bank account in the Isle of Man. That bank account was in the name of a company which the Applicant controlled.

(iv) About 5 weeks later, the US dollar equivalent of $2.1m. (i.e. 10% of the purchase price of the shares) was remitted to the account in the Isle of Man, and a corresponding sum of $2.1m. was debited from Alfred Lam's account.

The judge summarised these facts when addressing the jury on count 1, and took the jury in detail through the documents from which these facts emerged. In short, what the documents showed had happened was that the Applicant had been paid the US dollar equivalent of $2.1m. for causing Rockefeller to buy the shares in AWT.

19.These facts had been put to the Applicant in the course of his interviews. He had not denied them. He had said, though, that the $2.1m. had been paid as a placement fee. He had admitted that he should not have kept the $2.1m. himself, and that he should have accounted to Rockefeller for it. Thus, the Applicant's defence to count 1 - as put by Mr Lok to the jury in his closing address - was that the $2.1m. had not been paid to the Applicant for anything which he had done. It had been paid to him for him to pay to Rockefeller, and his wrong consisted, not of accepting a bribe, but of failing to account for the $2.1m. to Rockefeller.

20.There had been evidence in the trial about placement fees. Placement fees were said to be fees paid to brokers who arranged the sale of shares for onward transmission to the ultimate purchasers. In other words, the purchasers' willingness to buy the shares was to be rewarded with a payment equivalent to a discount in the purchase price. Thus, the intended ultimate recipient of the $2.1m. paid by Alfred Lam was said to be Rockefeller's Pioneer Fund. On the other hand, there was also evidence that placement fees would normally be in the region of 3%, and never as high as 10%. Thus, the prosecution's case was that the only inference to be drawn from

(a) the surreptitious way in which the payment was made to the Applicant,

(b) the size of the payment, and

(c) his failure to account to Rockefeller for it,

was that it had been paid to the Applicant as a reward for causing Rockefeller to purchase the shares.

21.The critical question is how the judge dealt with the Applicant's defence and the prosecution's response to it. In her summary of the facts on count 1, the judge referred to the relevant passages in the Applicant's interviews, in which the Applicant had admitted that he had received the US dollar equivalent of $2.1m. from Alfred Lam, that it had been paid as a placement fee for Rockefeller's Pioneer Fund taking up the shares in AWT, that he should not have kept it for himself, and that he should have passed it on to Rockefeller. What the judge did not say, in that part of her summing-up, was that the fact that it was said to have been paid as a placement fee constituted the Applicant's defence to the charge, and if what he had said in his interviews had been or might have been true, he was entitled to be acquitted on count 1.

22.However, shortly before embarking on her summary of each of the counts, the judge had said:

"Another point made by Mr Lok was to the following effect. Suppose some money would, upon the purchase of certain shares be due, for example as placement fees - to the accused's principal or to the fund which such principal managed or to investors having an interest in those funds. And suppose the accused simply took such money for himself. If so, the accused might be civilly or even guilty of theft. But he would not be guilty of accepting an advantage.

Members of the jury, that would indeed be the law if those were the facts. But are those the facts? Supposing the accused is approached and told that if he got his principal to buy certain shares, then he would be given certain money. And suppose the accused accepts. If he does, then it does not help him that the money was really for someone else. If he accepts the money for getting his principal to buy the shares, then he can be found to have accepted an advantage. It does not help him that someone else instead should have got the money or a similar amount of money."

If the judge had said that while dealing with count 1, no criticism could possibly be made. Did the fact that she did not link these comments with any particular count mean that the jury might not have appreciated that these comments applied to count 1? We think not. It might have been better if the judge had spelt out the counts to which these comments related, but since the comments addressed those occasions on which the Applicant kept a sum which he had alleged had been paid to him as a placement fee, the jury would inevitably have linked the judge's comments with those counts in which the Applicant had made such a claim.

23.We note also that when the judge reminded the jury of what the Applicant had told the police during his interviews, it was in the context of reminding the jury of what the prosecution's case was. Thus, it is said that the jury may have thought that everything which the Applicant had said was inculpatory. The criticism therefore is that the judge did not distinguish between those statements upon which the prosecution relied (for example, the Applicant's admission that he had kept the $2.1m. paid by Alfred Lam) and those statements upon which the defence relied (for example, his assertion that the $2.1m. had been paid as a placement fee). We think that the jury might have been better assisted if the judge had spelt out which parts of the interviews the defence relied on and why, but at the end of the day we do not think that the jury would have been left in any doubt as to what the defence was, and what parts of the interviews reinforced or undermined that defence. In the circumstances, we do not think that the judge's summing-up on count 1 was flawed.

Counts 2 and 3

24.In count 2, the Applicant was charged with accepting an advantage as an agent, and in count 3 he was charged with offering an advantage as an agent. The evidence which the prosecution led was as follows:

(i) Over a period of 5 months or so, Rockefeller purchased 24,164,000 shares in Styland Holdings Ltd. ("Styland"), and the Government of Singapore Investment Corporate Pte. Ltd. ("GSIC") purchased 9.75m. shares in Styland. It was on the Applicant's instructions that Rockefeller had purchased the shares which it bought, and it was on the instructions of Eddie Taw, GSIC's fund manager, that GSIC had purchased the shares which it bought.

(ii) At about the time when Rockefeller purchased the last tranche of its shares in Styland, the Applicant happened to leave Hong Kong for Macau at the same time as Kenneth Cheung, the chairman of Styland. The following day, two cheques totalling $4m. drawn on a company which operated casinos in Macau, were deposited into the Applicant's bank account in Hong Kong.

(iii) A few days later, $1m. was paid into a bank account which the Applicant and Eddie Taw operated. The deposit slip for that payment, which was in the Applicant's handwriting and found at his home, had the words "Styland's 10% fee" written on it.

The judge summarised these facts when addressing the jury on counts 2 and 3, and took the jury in detail through the documents from which these facts emerged. In short, what the documents showed had happened was that the Applicant had been paid $4m. for causing Rockefeller to buy the shares in Styland, and that he had paid Eddie Taw $1m. for causing GSIC to buy the shares in Styland.

25.These facts had been put to the Applicant in the course of his interviews. He had not denied them. He had admitted receiving the cheques for $4m. from Kenneth Cheung and passing $1m. on to Eddie Taw. He had said that he had thought that the reason why Kenneth Cheung had paid him the money was because Kenneth Cheung had wanted institutional investors to buy shares in Styland. He had admitted that he had told Eddie Taw about a "rebate" which Kenneth Cheung would pay, but had denied responsibility himself for bribing Eddie Taw because the bribe of $1m. had come from Kenneth Cheung. The judge reminded the jury of all that.

26.What, then, were the defences to the charges which Mr Lok invited the jury to consider? In relation to count 2, Mr Lok said that the Applicant's initial explanation in his interviews for receiving the cheques for $4m. had been that they represented the proceeds of gambling, and he invited the jury to consider whether that might have been correct. The judge did not in terms mention this "defence" to count 2, but we do not think that it would have been necessary for her to do so, because the Applicant had not said in his interviews that the cheques had been, or even might have been, the proceeds of gambling. What he had actually said was that the cheques had been given to him in the VIP room of the Lisboa Casino in Macau. When asked why, he had simply said that he had thought that they were the proceeds of gaming chips which Kenneth Cheung had got.

27.In relation to count 3, Mr Lok invited the jury to conclude that the Applicant could not be said to have "offered" a bribe to Eddie Taw. He had merely passed on to Eddie Taw the bribe which was being "offered" by Kenneth Cheung. Again, the judge did not mention, when dealing with count 3, that that was the "defence" to count 3. However, the point which Mr Lok was making was a question of law. Did the Applicant's passing on of a bribe to Eddie Taw from Kenneth Cheung amount to the "offer" of that bribe by the Applicant? The judge dealt with what constituted an offer early on in her summing-up, and she addressed the question as to whether someone could be said in law to be offering an advantage if he was acting on behalf of someone else. She said:

"Also, as I have ready told you and I now repeat, it is possible for someone to be both an acceptor and an offeror. Suppose the chairman of a company wants people to buy shares in a company. He might offer Agent A an advantage in return for Agent A getting Agent A's principal to buy such shares. If Agent A accepts, the Agent A is an acceptor.

Then suppose Agent A is willing to assist further by approaching Agent B and offering Agent B an advantage in return for Agent B getting Agent B's principal to buy such shares. If Agent A makes such an offer, then he is an offeror. In these situations, Agent A is both an acceptor and an offeror. A person can be an offeror whether he makes the offer on his own behalf or on behalf of someone else, or on his own initiatives or through prompting by someone else."

It was not suggested that this direction had been wrong in law, and since the direction related to all the counts in the indictment in which the Applicant was charged with offering an advantage to an agent, the jury would inevitably have appreciated that it applied to count 3. Since the Applicant had admitted that he had told Eddie Taw about the "rebate" which Kenneth Cheung had been prepared to pay, there would have been no option for the jury, in the light of the judge's directions in law, but to convict the Applicant on count 3 on the basis that the Applicant had offered an advantage to Eddie Taw, albeit that the Applicant had been acting on Kenneth Cheung's behalf in making that offer. In the circumstances, we do not think that the judge's summing-up on counts 2 and 3 was flawed.

Counts 4 and 5

28.In count 4, the Applicant was charged with accepting an advantage as an agent, and in count 5 he was charged with offering an advantage as an agent. The allegations were similar to those in counts 2 and 3. The Applicant was alleged to have caused Rockefeller to purchase 9m. shares in Pacific Andes International Holdings Ltd. ("PAI") in return for a bribe from Ng Joo Siang, PAI's managing director, of 3.15m. shares in PAI (count 4). The Applicant was also alleged to have passed on to Eddie Taw half of the 3.15m. shares in PAI to reward Eddie Taw for causing GSIC to purchase 15.4m. shares in PAI (count 5).

29.In her summing-up, the judge summarised the documents from which the transfer of the 3.15m. shares in PAI to the Applicant could be seen. The Applicant had admitted in his interviews receiving the 3.15m. shares from Ng Joo Siang and passing on half of them to Eddie Taw. However, he had claimed that the 3.15m. shares had been transferred to him for corporate advice which he had given to Ng Joo Siang (although he had also admitted that one of the reasons why he may have been rewarded for his corporate advice was because of his involvement in Rockefeller's purchase of shares in PAI). As for the transfer of some of the shares to Eddie Taw, the Applicant had admitted that they related to Eddie Taw's involvement in GSIC's purchase of shares in PAI, though he had described the transfer of the shares as placement fees and had said that the shares had not emanated from him. The judge likewise reminded the jury of all this in her summing-up.

30.We do not need to comment on count 5, since our comments on count 3 apply to it with equal force. In relation to count 4, it is true that the judge did not in terms say that the Applicant's claim that the shares had been transferred to him for the corporate advice he claimed to have given constituted his defence to the charge, and that if what he had said in his interviews had been or might have been true, he was entitled to be acquitted on count 4. It might have been better if the judge had spelt that out. However, the judge had made it clear, when describing the offence of accepting an advantage as an agent, that before the jury could convict the Applicant of such an offence, the jury had to be sure that he had accepted the advantage "for ... doing or having done an act in relation to his principal's affairs", and that causing Rockefeller to purchase shares in a company would come within that rubric. Thus, the jury would have appreciated that, if the Applicant had been provided with shares in PAI simply for corporate advice which he had given to Ng Joo Siang, he would not have been accepting an advantage as an agent. Thus, the jury would have appreciated what the Applicant's defence to count 4 was.

31.It is also true that, as with count 1, the judge did not expressly identify those parts of the interviews on which the defence relied, but dealt with the interviews globally as part of the prosecution's case. We repeat what we have said earlier in this judgment, namely that the jury might have been better assisted if the judge had spelt out which parts of the interviews the defence was relying on and why, but at the end of the day we do not think that the jury would have been left in any doubt as to what parts of the interviews reinforced or undermined his defence to count 4. In the circumstances, we do not think that the judge's summing-up on counts 4 and 5 was flawed.

Counts 6 and 7

32.In count 6, the Applicant was charged with accepting an advantage as an agent, and in count 7 he was charged with offering an advantage as an agent. Again, the allegations were similar to those in counts 2 and 3. The Applicant was alleged to have caused Rockefeller to purchase shares in Tem Fat Hing Fung (Holdings) Ltd. ("TFHF") in return for a bribe of $1,375,000.00 from Alexander Chan, the managing director of and a major shareholder in TFHF (count 6). The Applicant was also alleged to have passed on to Eddie Taw $212,500.00 to reward Eddie Taw for causing GSIC to purchase 2m. shares in TFHF (count 7).

33.We do not need to comment on count 7, since our comments on count 3 apply to it with equal force. As for count 6, the judge reminded the jury that the documents showed that the Applicant had received a cheque drawn on the account of Grand Union Investments Ltd. for $1,375,000.00. She also reminded the jury of those parts of the interviews in which the Applicant had admitted that he had been paid a sum in the region of $1m. for causing Rockefeller to purchase shares in TFHF. The only point taken by Mr Lok in his closing address to the jury was that there was no evidential link between the company on whose account the cheque for $1,375,000.00 had been drawn and the payment which the Applicant had admitted having received for causing Rockefeller's purchase of the shares.

34.It is true the judge did not say in terms that the Applicant's "defence" to count 6 was to put the prosecution to proof that the cheque came from a company controlled by, or connected with, Alexander Chan. But what the judge did was to remind the jury of what the Applicant had said in his interviews when he had been "asked whether the payment by the cheque for $1,375,000.00 was related to Rockefeller's .... purchase of [TFHF] shares". The jury could have been left in no doubt that at least one of the issues on count 6 was whether the sum of $1,375,000.00 related to the Applicant's admitted receipt of a "fee" for causing Rockefeller to purchase shares in TFHF. In the circumstances, we do not think that the judge's summing-up on counts 6 and 7 was flawed.

Counts 8-11

35.In counts 8-11, the Applicant was charged with four charges of accepting an advantage as an agent. In each of the charges, the Applicant was alleged to have caused Rockefeller to purchase shares in Rhine Holdings Ltd. ("RHL") in return for bribes from Robin Lam, who was a director of a firm of stockbrokers (which, we presume, had been engaged to find buyers for shares in RHL).

36.It was not disputed that the Applicant had caused Rockefeller to purchase a total of 20.5m. shares in RHL. The evidence that the Applicant had corruptly received payments for doing so consisted of his admissions in the interviews, in which he had admitted receiving from Robin Lam 10c. to 15c. for each share purchased by Rockefeller. The only point taken by Mr Lok in his closing address to the jury was that there had been no evidence confirming the truth of what he had admitted to. As Mr Lok put it:

"Let me repeat perhaps just for the final time. No bank records. No evidence to show how this enormous amount of money had gone to. No evidence of lifestyle."

37.It is true that the judge did not say in terms that the Applicant's "defence" to counts 8-11 was to put the prosecution to proof that his confession was true. However, the judge had given the jury early on in her summing-up a clear and simple direction about the effect of any admissions made by the Applicant in his interviews, and about the need for the admissions to be "reliable" if the jury was to rely on them. In that connection, she reminded the jury of the need to consider the extent to which the reliability of the admissions may have been undermined by the passage of time between the events which the Applicant had been describing in the interviews and the interviews themselves. There was no need for the judge to remind the jury of that general direction when she came to sum up counts 8-11. In the circumstances, we do not think that the judge's summing-up on counts 8-11 was flawed.

Counts 12 and 13

38.In counts 12 and 13, the Applicant was charged with conspiracy to defraud. In count 12, the Applicant was alleged to have conspired to sell Rockefeller's shares in a company whose shares were listed on the Stock Exchange of Indonesia at a price less than their quoted price to a company controlled by him. In count 13, he was alleged to have conspired to sell Rockefeller's shares in various Malaysian companies and to pay part of the proceeds of their sale to the company controlled by him.

39.In his closing address, Mr Lok did not address the jury at all on the primary facts on which these allegations were based. The only topic on which Mr Lok addressed the jury was what the prosecution had alleged to be the background to these counts, namely the need for the Applicant to raise funds in order to enable Rockefeller to honour a guarantee which the Applicant had given on its behalf to the Overseas Union Bank which he should not have done. Mr Lok summarised his submissions to the jury on counts 12 and 13 as follows:

"There is nothing to contradict the accused's assertion that when he made the guarantee for and on behalf of Rockefeller in favour of Overseas Union Bank he did not receive any commission or incentive from Lam Nai-sum, Robin. He was doing it just to help a friend. Given that the guarantee was binding on Rockefeller it was their responsibility to honour the guarantee. The accused having settled the amount due and owing to Overseas Union Bank by using his personal resources wanted a reimbursement. If upon a close scrutiny of this background there was nothing immoral or sinister about the conduct of the accused, he was not guilty of these two counts."

We have had some difficulty in understanding the point which Mr Lok was trying to get across to the jury, and we have therefore looked at what he actually told the jury. We are none the wiser, but we take it that Mr Lok was inviting the jury to treat the suggested motive for the alleged conspiracies with considerable scepticism.

40.We accept that the absence of any plausible motive for a defendant to conspire to defraud his employers can in an appropriate case cast light on whether the defendant had in fact conspired to do so. As it was, the judge did not direct the jury as to the relevance of the guarantee, and she did not remind the jury of the evidence relating to the guarantee (though she reminded the jury of what the Applicant had said about the guarantee when he had been interviewed). The judge merely summarised the evidence relating to the primary facts on which the prosecution's allegations were based. But if the only inference to be drawn from the primary facts was that the Applicant had conspired to defraud Rockefeller in the ways alleged, whether he had a particular motive for doing so was irrelevant, and the absence of any reference in the summing-up to the relevance of the guarantee or to the evidence relating to the circumstances in which the guarantee had been given could not affect the propriety of the convictions on the two counts. Having seen from the summing-up what the primary facts were, it is, we think, plain that the only inference to be drawn from them was that the Applicant conspired to defraud Rockefeller in the ways alleged. Apart from anything else, the Applicant had actually admitted in his interviews conspiring to defraud Rockefeller in relation to the shares to which counts 12 and 13 related, even though he had claimed that his co-conspirators had been unaware that Rockefeller had actually been deceived. In the circumstances, we do not think that the judge's summing-up on counts 12 and 13 was flawed.

Counts 14 and 15

41.In count 14, the Applicant was charged with conspiring to accept advantages totalling $21.95m. as an agent, and in count 15 he was charged with accepting an advantage of US$494,847.10 as an agent. The counts embraced an allegation that the Applicant had caused Rockefeller to purchase shares in various companies in return for bribes from Robin Lam, and had paid some of the money to Eddie Taw and Alfred Lo, the fund manager of Fidelity Investments (Singapore) Ltd. ("Fidelity") to reward them for causing GSIC and Fidelity to purchase shares in those companies. Eddie Taw was alleged to have received $7.15m. and Alfred Lo $3.55m. We were told that the charge in count 14 was a conspiracy charge, rather than substantive counts of accepting advantages from Robin Lam and offering advantages to Eddie Taw and Alfred Lo, because there was no evidence as to which payments related to which purchases, though we have not been told to which purchase the payment in count 15 related.

42.Like counts 12 and 13, Mr Lok did not engage in his closing address the primary facts to which these allegations related. In other words, he did not suggest that the prosecution had failed to prove that

(a) the Applicant had caused Rockefeller, and Eddie Taw and Alfred Lo had caused GCIS and Fidelity, to purchase shares in the various companies,

(b) sums totalling $21.95m. and the sum of US$494,847.10 had been paid to the Applicant by Robin Lam, and

(c) the Applicant had paid $7.15m. to Eddie Taw and $3.55m. to Alfred Lo.

Mr Lok summarised his submissions to the jury on counts 14 and 15 as follows:

"In relation to these counts, the accused could not be specific about which related to which. The mere size of the sum in proportion to the accused['s] annual income is not the only yardstick upon which an adverse inference should be drawn. The reason being that the accused had also invested personally. The fact that the accused had not disclosed his private investment was something purely internal between employer and employee."

Again, we have had some difficulty in identifying the point which Mr Lok was trying to get across to the jury, and we have therefore looked at what Mr Lok actually said to the jury. We are again none the wiser. All we can think of is that Mr Lok's argument to the jury was that it was not open to the jury to infer from the primary facts that the Applicant's purchase of the shares on Rockefeller's behalf was the reason for the payments to him or that the purchase of the shares by Eddie Taw on behalf of GCIS and Alfred Lo on behalf of Fidelity was the reason for the payments to them.

43.We turn to the judge's summing-up upon the assumption that we have correctly identified the argument upon which the defence relied. The judge carefully summarised the evidence relating to the primary facts on which the allegations were based. It is true that she did not in terms tell the jury that the real issue on those counts was whether it could be inferred from those primary facts that the payments had been made for causing the shares to be purchased. It might have been better if the judge had said that, though Mr Lok's language was so opaque that she could be forgiven for not appreciating what he was saying. As it is, we make the same comment as we made on count 4. The jury had already been told that offering or accepting an advantage as an agent involved offering or accepting an advantage "for .... doing or having done an act in relation to his principal's affairs". Causing Rockefeller, GCIS or Fidelity to purchase shares would have come within that rubric. Thus, the jury would have appreciated that before convicting the Applicant on counts 14 and 15, it had to be sure that the Applicant had received the payments from Robin Lam for causing Rockefeller to purchase the shares and had passed on part of the payments to Eddie Taw and Alfred Lo for causing GCIS and Fidelity to purchase the shares. In the circumstances, we do not think that the judge's summing-up on counts 14 and 15 was flawed.

Count 17

44.In count 17, the Applicant was charged with accepting an advantage as an agent. The background to this charge was that the Applicant had found himself having to pay about $2m. which represented the balance of the purchase price for shares which he had bought for his own account. In return for that debt being cancelled, the Applicant was said to have caused Rockefeller to purchase shares in various companies.

45.Like a number of the other counts, Mr Lok did not address the jury in his closing speech on the primary facts on which this allegation was based. The only topic on which Mr Lok addressed the jury was another aspect of the prosecution's case, but which did not feature in the charge. That was that the prices which the Applicant had caused Rockefeller to buy the shares for were inflated. The only argument which Mr Lok put to the jury was that the Applicant had not been aware that the prices which he had been quoted for the shares were artificial, and he had believed that the prices which he had been quoted represented the true market prices of the shares.

46.As it was, the judge reminded the jury in her summing-up that in his interviews the Applicant had claimed that he had purchased the shares for Rockefeller at what he believed to have been the market prices. It is true the judge did so in the course of reminding the jury of everything which the Applicant had said in his interviews on the matters to which count 17 related, and in the context of reminding the jury of what the prosecution's case was. She did not distinguish between those statements upon which the prosecution relied and those statements upon which the defence relied. As we have said in relation to counts 1 and 4, the jury may have been better assisted if the judge had spelt out which parts of the interviews the defence was relying on and why, but at the end of the day we do not think that the jury would have been left in any doubt as to what parts of the interviews reinforced or undermined the Applicant's defence to count 17.

47.In any event, it is difficult to see what the Applicant's defence to count 17 was. Even if the Applicant had believed that the prices which he had caused Rockefeller to pay for the shares had been their market prices, the critical question was why he had caused Rockefeller to buy those shares in the first place. The charge alleged that he had caused Rockefeller to buy them in return for the cancellation of his debts. Thus, the real issue on count 17 was whether that was what he had done, and what he had thought was the market price of the shares was relevant only to the extent that it helped to identify the reason why he had bought the shares at all. In the circumstances, we do not think that the judge's summing-up on count 17 was flawed.

Count 18

48.In count 18, the Applicant was charged with accepting an advantage as an agent. The allegation was that the Applicant had caused Rockefeller to purchase shares in Capital Asia Ltd. ("CAL") in return for a bribe of US$64,509.45 from Albert Lo, the managing director of the placing agents engaged to place new shares in CAL.

49.In the course of his interviews, the Applicant did not deny having been paid the US dollar equivalent of $500,000.00 by Albert Lo. What he had said was that it had been paid to him as a placement fee. His defence to count 18 was therefore the same as his defence to count 1. The criticisms made of the summing-up in relation to count 18 are the same as those made about count 1, but for precisely the same reasons which we have already given when dealing with count 1, we do not think that the judge's summing-up on count 18 was flawed.

Conclusion

50.In the course of his submissions to us, Mr Lok accepted that the prosecution's case at trial had been "extremely compelling". The evidence showing the flow of funds to the Applicant had been "strong", and many of the "defences" which had been advanced on behalf of the Applicant had been "highly technical, even shadowy". It is in such a case, of course, that the need to maintain a proper balance between the prosecution and the defence is at its most acute. As Lord Lane CJ said in a memorable passage in R. v. Fraser Marr (1990) 90 Cr App R 154 at p. 156:

"It is .... an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge. Indeed it is probably true to say that it is just in those cases where the cards seem to be stacked most heavily against the defendant that the judge should be most scrupulous to ensure that nothing untoward takes place which might exacerbate the defendant's difficulties."

51.There is, we think, some force in the broad criticism that the judge did not spell out, even if only in a sentence or two, what the Applicant's case on each count was - whether the Applicant's case was based on what he had said in his interviews, or on such alternative view of the primary facts which Mr Lok advanced in his closing address. However, by examining each individual count in detail it can be seen that that failure on the part of the judge did not, in the particular circumstances of each count, deprive the Applicant of his right to have his case sufficiently placed by the judge before the jury. The way the judge approached the defence case - namely (a) by commenting generally on some of the arguments advanced by Mr Lok rather than relating them to individual counts and (b) by dealing with the exculpatory parts of the Applicant's interviews in the context of outlining the prosecution's case - represented a high-risk strategy, but we have concluded that they did not result in the Applicant's "defences" not being left to the jury. We are satisfied, for the reasons we have endeavoured to give, that the jury would not in this case have been left in any doubt as to what, for what they were worth, the Applicant's "defences" were. The Applicant's application for leave to appeal against his convictions must therefore be dismissed.

Representation:

Mr Lawrence Lok SC and Mr Kenneth Chik, instructed by Messrs Simon C. W. Yung & Co., for the Applicant.

Mr Bernard Ryan and Mr Gavin Shiu, of the Department of Justice, for the Respondent.