The Queen v. Ch'Ng Poh
Read the full judgment text of CACC 333/1994 on BabelCite. This Court of Appeal judgment was delivered on 15 January 1996.
1. On 5 July 1994 after a trial lasting 11 weeks before Keith J and a jury, the appellant was convicted of conspiracy to defraud International Housing Development Ltd (IHD) of HK$127,617,747.88 ($127m) and a second offence of publishing a false statement contrary to s.21(1) of the Theft Ordinance, Cap. 210 which concealed the missing $127m in the IHD Annual Report for 1985. He was sentenced to 5 years imprisonment and 15 months imprisonment concurrent, and was ordered to pay a sum not exceeding
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CACC000333/1994 IN THE COURT OF APPEAL 1994, No. 333
-------------------- Coram: Hon Nazareth, V.-P., Mortimer and Mayo, JJ.A. Date of hearing: 30 and 31 October, 10, 13, 16, 28 and 30 November, Date of delivery of judgment: 15 January 1996 ---------------------- J U D G M E N T ----------------------- Mayo, J.A. giving the judgment of the Court: 1. On 5 July 1994 after a trial lasting 11 weeks before Keith J and a jury, the appellant was convicted of conspiracy to defraud International Housing Development Ltd (IHD) of HK$127,617,747.88 ($127m) and a second offence of publishing a false statement contrary to s.21(1) of the Theft Ordinance, Cap. 210 which concealed the missing $127m in the IHD Annual Report for 1985. He was sentenced to 5 years imprisonment and 15 months imprisonment concurrent, and was ordered to pay a sum not exceeding $15m towards the costs of prosecution. 2. With the leave of this Court, he appeals against those convictions. The background 3. The appellant, a Malaysian businessman, wanted to buy a controlling interest in a public company. He met C.H. Low, an alleged co-conspirator and a chief witness at the trial. C.H. Low held a majority interest in IHD - a Hong Kong listed company - which he was anxious to realise. He saw this as an opportunity to sell to the appellant but the appellant did not have the means to pay for the shares. The method adopted to fund the appellant's purchase of the shares is central to the case. 4. C.H. Low's 77m shares in IHD (a 60% holding) were held by Territorial Limited as his nominee. The appellant agreed that Join Park Ltd (of which he held 74%), would buy the shares for $232,540,000. Of this, $109m was borrowed by Join Park from the Ka Wah Bank (KWB) but the balance of $123.540m had to be found elsewhere. The conspiracy to defraud 5. The balance was found by defrauding IHD of $127m which was used to pay Territorial Ltd for C.H. Low's shares which were transferred to Join Park after completion of the agreement on Saturday 17 August 1985. The transaction was achieved by "the circle" of cheques. 6. During prior negotiations the appellant discovered that two C.H. Low companies owed IHD a total of $127m including interest. Naturally, he required repayment before completion and it was agreed that Territorial Ltd would repay the money to IHD on behalf of the debtor companies. 7. At completion, Wanfong Nominees repaid the $127m on behalf of Territorial Ltd into IHD's account by three cashier orders. Immediately afterwards, IHD remitted the same sum in 8 cheques of odd amounts to its subsidiary, Dixon Ltd. By 8 cheques of different odd amounts Dixon remitted it to Wanfong Nominees who received it on behalf of Territorial Ltd. It was applied to pay the balance owing on the shares. These transactions took place through accounts which each party held with KWB on Saturday 17 August 1985. The conspirators 8. C.H. Low and his brothers bought a substantial interest in KWB in 1975. Later, Victor Tan joined the Bank. C.H. Low and Victor Tan brought Doreen Yong, a chartered company secretary from Kuala Lumpur, to work in the Bank. She later became C.H. Low's mistress and carried out his instructions in relation to his, and Victor Tan's, corrupt running of the Bank and numerous other companies. 9. Quek Teck Huat was the chairman of IHD at the time of these transactions and a close business associate of C.H. Low and Victor Tan. 10. At trial, C.H. Low, Doreen Yong and Quek Teck Huat gave evidence as accomplices with immunity. They each admitted that they conspired with Victor Tan to defraud IHD of the $127m by means of the circle of cheques. They also testified that the appellant had full knowledge of the fraud, was a party to it and a beneficiary of it. The issue 11. The central issue before the jury was whether the appellant knew about the said circle of cheques and consequently was a party to the fraud on IHD. The prosecution case 12. The prosecution case was that initially the conspirators agreed that the $127m would be repaid by C.H. Low's companies to IHD but that it would then be used by the appellant to pay the balance of the purchase price at completion. However, as the law forbade a company from financing the purchase of its own shares, the true nature of the transaction was concealed by the circle of cheques with the appellant's full knowledge and consent. 13. IHD books recorded the repayment of the debts of $127m, followed by loans totalling $127m to its subsidiary Dixon Ltd. Dixon Ltd recorded the receipt of these sums and the payment out of different sums in 8 cheques also totalling $127m for "investments". According to C.H. Low the professed intention was that later the appellant would transfer his assets into IHD (via Dixon Ltd) as if they were the investments purchased by Dixon so that when the auditors came to examine the books, the true nature of the transaction would be hidden from them. The appellant's version 14. The appellant denies that he knew of, or agreed to, the transaction. He agrees that he was unable to fund the purchase of the shares from his own resources. He contends that he wanted to borrow the full price from the Bank but C.H. Low told him that the maximum the Bank would lend was $125m. He knew therefore that he had to find the balance elsewhere. C.H. Low was desperate to sell. So he proposed, and the appellant accepted, an arrangement whereby Territorial Ltd would transfer the shares and allow the appellant to pay the balance of the purchase price later. For his part the appellant would later sell assets to IHD and thereby raise sufficient to pay that balance to Territorial. This was referred to as the vendor financing agreement. 15. At the time he believed this arrangement had been put into effect and he knew nothing of the fraud on IHD until he discovered shortly before 26 September 1985 that the money was missing. The evidence summarised 16. The main prosecution evidence was given by the accomplices C.H. Low, Doreen Yong and Quek Tech Huat. Their testimony was uncorroborated and given under immunities. 17. The negotiations leading up to the sale of the IHD shares, the discovery by the appellant of the debts of $127m owing to IHD before completion, the agreement for sale, a meeting to rehearse the completion to ensure the smooth carrying out of the fraud, and the completion of both the sale and the fraud were described. Each accomplice testified about his or her part and the knowledge and participation of the appellant. 18. The appellant's insistence that the worthless debts should be repaid to IHD was described together with his agreement that the sum should be returned to Territorial to fund the purchase of the shares. Also, there was evidence of the payments out by Dixon Ltd described as "investment" in its books so that the appellant could later transfer assets to IHD and thereby conceal the true nature of the transaction from the auditors. 19. A wide ranging - and apparently successful - attack was made upon the credibility and honesty of C.H. Low and Yong. With less success (it would seem) a similar attack was made upon Quek. The defence relied not only upon C.H. Low's participation in the massively corrupt and dishonest running of KWB but also upon his anxiety together with his mistress Yong to assist the authorities in Hong Kong in order to obtain leniency for himself and immunity for Yong to enable her to return from Taiwan with their child. In many instances the evidence of the accomplices was inconsistent one with that of another, and with earlier statements each had made. 20. The appellant gave evidence in accordance with his version of the transaction set out above denying knowledge of, or participation in, the fraud. He contended that he was unaware of the missing $127m until a few days before 26 September 1985. This was also before the publication of the IHD Annual Report at about the beginning of December 1985. He conceded this report was false in that he did not disclose the missing sum, but claimed that he was not dishonest because he believed that the sum could be recovered. 21. Apart from these broad matters which were for the jury to resolve upon the credibility of the witnesses, both the defence and the prosecution made many other significant points. 22. The above essential outlines conceal the complicated factual evidence given both the prosecution and the defence. The judge encapsulated the law, the evidence and the issues for the jury's assistance with commendable clarity and fairness. Later we refer to passages criticised by the appellant, but as a general summary of the evidence in this lengthy trial subject to what follows, we are content to rely upon it as an account necessary for a full understanding of the case. 23. The issues raised on both the defence and prosecution were fairly and squarely left to the jury. Those raised by the defence and relied upon in this appeal are dealt with in some detail below. It is not necessary to anticipate them but it is necessary to note that the prosecution case did not rest entirely upon the accomplices. There was no corroboration but in four broad categories there was significant circumstantial support for the prosecution case. To these we now turn. 1. The appellant's conduct 24. Against the background that IHD was defrauded and that the central issue was whether the appellant participated in the fraud, there were relevant aspects of his conduct which supported the prosecution case. 25. He was a well-educated, experienced and successful businessman yet his behaviour during the negotiations leading to the agreement for, and the completion of, the purchase of IHD when he had insufficient means to pay for the shares was seriously open to question in the following respects: (a) He did not seek full advice from professional advisers. He had no independent accountant to examine IHD's books. He had no independent valuation of IHD's one asset - Intercontinental Plaza. He failed to seek advice from his solicitor, Susan Chow, about the arrangement for financing the purchase, nor sufficiently about the agreement itself which he signed knowing that clause 3(A) was false. He signed this agreement in spite of reservations expressed by his partner Ngai and Susan Chow. (b) Before the signing of the agreement in June, he discovered that C.H. Low had not disclosed the $89m Seareef debt. Later (the exact time was in dispute) he discovered that the Ariffin and Low debt of $36m had not been disclosed. In spite of this he continued to deal with C.H. Low without the usual professional advice and without disclosing the nature of the transaction to his solicitor. He even completed on 17 August 1985 and entrusted Yong with the three cashier orders having concluded on 16 August that she had lied to Susan Chow and knowing that Susan Chow had reservations about Territorial's conduct during the negotiations. 2. The appellant's evidence 26. In other important respects the appellant's evidence was open to question and the jury were entitled to draw adverse inferences. Examples of these are: (a) There were inconsistencies between the appellant's evidence on affirmation in earlier civil proceedings and his evidence at this trial (i) about the reason for deferring payment for the shares. In the affirmation the reason given was that he would retain the purchase money "pending the verification of the anomalies in the account", and (ii) whether he thought C.H. Low was the vendor and beneficial owner of the shares. (b) Also, in his statement under caution, he said he would inject cash into Camden to pay for the shares without any reference to raising the necessary money by a sale of assets to IHD. The transfer of assets was central to his defence. (c) In a file found in the appellant's desk, two receipts were found in favour of his companies - Camden and Earlstone for $123.54m and $109m representing the purchase price. These were said to be consistent with his knowledge of the fraudulent payment at completion and inconsistent with his evidence. But see the summing-up p.174A-179M for a full summary. (d) When the appellant discovered that the $127m was missing, a few days before 26 September 1985, he admitted failing to tell his partner Ngai. Ngai heard about it indirectly in October. When asked, the appellant first said that several tens of millions of dollars were missing before later conceding the actual amount. The appellant never told the non-executive directors of the missing money, saying that he relied upon Ngai to do so. 3. The appellant's account 27. The prosecution also contended that the appellant's own account of the transaction was fundamentally flawed so as not to be acceptable. The main points were: (a) The appellant's evidence was that in spite of the arrangement that he was to inject assets into the IHD Group to raise the money to pay for the shares, Quek told him that he had invested the $127m on speculative property development in Singapore. When he discovered he said that he was "happy". Yet had the money been spent by Quek in this way (Quek denied it), the appellant would have been deprived of raising the money to pay for the shares by transferring his assets to IHD. The whole arrangement would have been frustrated. (b) On the evidence, the assets which the appellant proposed to sell to IHD to raise the purchase price were of doubtful commercial value. They chiefly consisted of a series of "letters of intent" and hopes of future subcontracting in building projects. Some of these would require considerable investment if binding agreements were eventually made. Also, a proper valuation would have been necessary before IHD as a public company could purchase these "assets". The appellant's ability to complete the transaction was at risk. (c) The appellant's explanation of the transaction to the accountant for Join Park was inconsistent with his evidence at trial with the consequence that the $109m was wrongly described in its accounts for a number of years. (d) The general offer to minority shareholders stated that the agreement had been completed. The appellant never informed his advisers of the arrangement for deferred payment. Yet had he done so, no general offer would have been necessary. (There was evidence that the appellant was anxious to avoid the financial burden consequent upon such an offer.) (e) The deferred payment contended for was inconsistent with the appellant's assertion that C.H. Low was desperate to sell in order to raise cash. 4. Generally 28. The prosecution contended that in practice and common sense the appellant had to be a party. The fraud was likely to fail without his knowledge and the circle of cheques was for his benefit as well as the other conspirators. Counsel relied upon the following: (a) The professional advisers - including those for the appellant - were deceived into thinking that completion occurred on 17 August 1985. Join Park could not pay with IHD's money unless the cashier orders - used to demonstrate to the advisers that the debts had been repaid - were released by the appellant back to Doreen Yong to the bank without delay. (b) The records were consistent with the money having been used to pay for the IHD shares - see for example the two receipts. (c) After completion, the 77m IHD shares were transferred to Join Park. (d) Without the appellant's participation, it was highly likely that the fraud would be discovered immediately after completion. (e) The use of 8 cheques to transfer the money from Dixon to Wanfong was consistent with the intention of covering the fraud by transferring various assets later as each cheque could be related to different assets in the books. 29. We now turn to the issues raised in the appeal. Primary grounds of appeal 30. There were altogether 9 main perfected grounds of appeal and two additional grounds. 31. Before the appellant could argue the first two grounds of appeal and the additional grounds it was necessary for the defence to obtain the leave of the court to adduce further evidence pursuant to section 83V of the Criminal Procedure Ordinance, Cap. 221. 32. The first two grounds of appeal were:
33. The two additional grounds of appeal were:
34. It is convenient to consider these grounds of appeal together. Application for additional evidence 35. An application to adduce the additional evidence referred to in these grounds was made as a preliminary issue. The parties were informed at the conclusion of the application that it was dismissed and that reasons for the dismissal would be given in our judgment. These reasons, it should be noted, in the event also embrace the issue of the failure of the Defence to make out a case of material irregularity in the trial. 36. The evidence sought to be adduced was the evidence of Mr C.W. Reid, Mr Alex Chan, Mr Lai, Mr John Lim (the additional witnesses) and the transcript of 22 tape recordings of interviews by Senior Officers in ICAC when interviewing C.H. Low who was the principal witness in the proceedings below. 37. It is to an extent necessary to consider these two sources in conjunction with each other as it is the appellant's contention that some of the material contained on the tapes either supports or tends to support the potential evidence Reid and Alex Chan would be able to give. 38. Put in simple terms Reid and Chan state in their affidavits that they had numerous conversations with C.H. Low while they were inmates in prison when they discussed the circumstances surrounding the appellant's case. According to Reid and Chan C.H. Low told them that he had deliberately perjured himself with the intention that the appellant should be wrongly convicted of being a party to the conspiracy that he, C.H. Low had been a party to with others. His motive for this had been a deep hatred of the appellant who had initiated the legal proceedings which had been instrumental in bringing about his downfall. 39. When C.H. Low had made his statements to the ICAC officers he provided a substantial body of detailed evidence and Mr Plowman, QC, for the appellant contended that some of the matters referred to in Reid's affidavit would not have been known to him but for the said conversations and the fact that similar material was contained on the tapes strongly reinforced the credibility of Reid's evidence. Mr Plowman submitted that leave should be given to admit the additional witnesses on affidavit or viva voce as this evidence was not available at the time of the hearing nor could it have been even with due diligence. 40. Subsequent to his conviction the appellant terminated his instructions to Messrs Fan & Fan the solicitors then representing him and instructed his present solicitors Messrs Haldanes. One of the first actions taken by Haldanes was to write to Reid who was still serving the sentence of imprisonment imposed upon him and request him if he could assist them in any way. Reid had given evidence for the Crown against Eddie Soh who had, when he had been a barrister, represented C.H. Low. Reid had indicated that he could be of assistance and some months later when he had completed his sentence and returned to New Zealand he swore the affidavit in question. 41. The background to the tapes was very different. Prior to the appellant's trial Messrs Fan & Fan had written to ICAC asking for any relevant background material they were entitled to as being of possible assistance in the preparation of their clients defence. ICAC had not provided the defence with these tapes until after the prosecution had closed its case against the appellant. Indeed it was not until six days after the appellant had started giving evidence that the defence were notified of the existence of the tapes. It was accepted that the tapes did contain material which was relevant to the instant criminal proceedings. It was in these circumstances that the application was made to introduce the tapes as evidence. 42. The relevant parts of s83V of Cap 221 for this application read:
43. Mr Plowman places particular reliance upon s83V(1). He argued that it was both necessary and expedient in the interests of justice that both the additional witnesses' evidence and the tapes should be admitted as evidence before the Court of Appeal. 44. Different considerations apply to the additional witnesses' evidence and the tapes. Reid's evidence 45. The first question for this court is whether Reid's evidence is admissible. Section 13 of the Evidence Ordinance Cap. 8 which deals with previous inconsistent statements provides:
46. Mr Aiken QC, for the Crown submitted, quite rightly in our view, that until C.H. Low has denied that he had the conversations alleged with Reid the affidavit or any evidence given by Reid would be inadmissible. Accordingly, even if Mr Plowman were to be right in submitting that an order could be made under s83V(1) rather than s83V(2) being inadmissible, that evidence could not be received by this court under either provision. Authority for this proposition can be derived from the judgment of Scarman LJ as he then was at p56 of Lattimore and others [1976] 62 Cr.App.R.53:
47. This requirement need not however be fatal because if we considered it necessary in the interests of justice it would be open to us to exercise our discretion to order C.H. Low to be called for cross-examination, a procedure adopted by the Court of Appeal in England in Re Conway 1979 Cr.App.R.4. If C.H. Low denied the conversation Reid's evidence would become admissible but would go only to C.H. Low's credibility. 48. This then leads to the most important consideration. That is whether having regard to all of the surrounding circumstances the evidence contained in Reid's affidavit is well credible of belief. We approach this on the lines indicated by Edmund Davies LJ at p3 of R. v. Stafford and Luvaglio NW1 1968 53 Cr.App.R.1:
49. Not much credit can be given to Reid as a witness. He is a self confessed criminal of the worst type. He grossly abused the trust reposed in him as a senior member of the Attorney General's Chambers. There is every reason to be suspicious of him as a witness. 50. There is also every reason to be suspicious of the circumstances under which his affidavit came to be provided which remains unexplained. In particular, no satisfactory explanation has been forthcoming as to why it was thought to be desirable to make inquiries of Reid after the appellant was convicted rather than when the defence was being prepared. While it is true that those advising the appellant would have had no idea what evidence Reid would be able to give it is strange that Reid should have acted in the way he did. If he is to be believed he was prepared to sit back and do nothing while according to his testimony an injustice was being perpetrated. However as soon as he is approached after the trial he is prepared to come forward and give the most detailed evidence. He did not however commit himself to swearing an affidavit until some months later when he had returned to New Zealand when clearly it is much more difficult for the Prosecution to investigate the various matters he raises. So far as the contents of Reid's affidavit is concerned it has to be borne in mind that Reid as a consequence of his official duties had a detailed knowledge of the background of the events referred to. It is necessary, though, to bear in mind that Reid's access to information would have been cut off after he discontinued performing his duties. 51. It will be noted from the conclusions which have been reached later in this judgment on the audio tapes that the material on the tapes does not to any significant extent corroborate the evidence contained in Reid's affidavit. 52. To summarise: (a) Reid's evidence is not admissible; (b) In any event, his evidence is not well capable of belief; (c) Further, we do not exercise our discretion to order C.H. Low to be called for cross-examination in order to create the circumstances in which Reid's evidence could become admissible because: (i) Reid's evidence goes only to C.H. Low's credibility, (ii) The material available at trial to the appellant to impugn C.H. Low was so extensive that in any event this would have been unlikely to have had any increased impact; and (iii) The circumstances in which his evidence was not available at trial but became available so late are open to question. 53. In reaching our conclusion we do not overlook the importance of Reid's allegation that C.H. Low informed him of an intention to fabricate a case against the appellant. For these reasons we refused leave to adduce his evidence. Mr Alex Chan's evidence 54. Alex Chan was also a fellow prisoner of C.H. Low at Siu Lam in the later part of 1992. The considerations relating to the admissibility of Chan's evidence are similar to those obtaining in relation to Reid. According to an affirmation affirmed by Chan he and C.H. Low became friends and had numerous conversations. During the course of these it became clear that C.H. Low had a bitter antagonism towards the appellant and was anxious to harm him if he could. At one point he said that he would frame him. Chan also said that he had been a party to illegally arranging for a portable telephone to be brought into the prison for C.H. Low's use. One of the people he wanted to speak to was his mistress Yong. The arrangements were made with Lai a warder and C.H. Low made a number of telephone calls on the telephone. Eventually the use of the telephone was discovered by the authorities and criminal proceedings were instituted against Lai and Chan. 55. Mr Plowman submitted that collaboration between the co-conspirators was an important element of the trial below. The defence's knowledge or lack of it was crucial. Mr Plowman claimed that the prosecution should have acquainted the defence with particulars of the use of the telephone. 56. We do not think that this submission can be sustained. The scope at that point of time for collaboration would have been limited. The opportunity for collaboration had existed for some time and the conspirators had already made statements committing themselves to their versions of events. At best this issue was peripheral. 57. So far as the conversations with C.H. Low and the allegation that he said that he would frame the appellant are concerned they are much too vague and lacking in particulars to be of any value. 58. We bear in mind the suspicious background circumstances. There was considerable press coverage of the trial below. Notwithstanding this Chan does not seem to have felt any moral imperative to come forward to give the evidence he now seeks to give. The explanation that his conscience was pricked by the newspaper report of this appeal is hardly convincing. 59. Also when this is taken in conjunction with his character and background we do not think that Chan could be a credible witness. 60. As to admissibility and the exercise of our discretion we reach the same conclusion in respect of this witness as we did with Reid. John Lim 61. The appellant also sought leave under s83V to adduce 4 witness statements which had been made by John Lim. The 1st was made on 8 July 1987, the 2nd on 19 October 1987, the 3rd on 6 March 1990 and the 4th on 12 January 1992. All of these statements were made to ICAC officers in connection with the investigation which was being undertaken by them into the affairs of the KWB. At the time when the statements were made the investigation was not directed towards the matters which are the subject of the present proceedings. 62. Lim was an employee of KWB. He was originally employed in Malaysia and is a citizen of that country. He was seconded by the Low Brothers to work in the bank in Hong Kong. Most of his work was undertaken upon the instructions and directions of C.H. Low. To a considerable extent he performed duties similar to those which, after he left, were undertaken by Yong. Lim said that he was often asked to sign documents in other people's names by C.H. Low. He complied with these requests. He said that to his knowledge Yong did likewise as did C.H. Low himself. 63. Mr Plowman submitted that as forgery was a live issue in the trial below the prosecution should have made these statements available to the defence. 64. Even if the statements had been available to the defence they would have been of limited assistance because if either Yong or C.H. Low had denied the contents of the statements it would not have been open to the defence to call rebuttal evidence as the contents of the statements only impinged upon the witnesses credit. 65. Over and above this it was unlikely that the defence would have been able to call Lim. He was at the time of the trial in Malaysia. He would have been most unlikely to come to Hong Kong as he himself had according to the matters referred to in the statements likewise been guilty of at least forgery and no immunity from prosecution had been sought from the Crown in these proceedings. 66. Mr Aiken informed us that the officers in ICAC who had taken the statements Mr Osborne and Mr Gidwani had not remembered the matters referred to in the statements when Yong and C.H. Low had been giving their evidence at the trial. 67. We have no doubt that Mr Aiken was correct in his contention that as this evidence was not admissible an application under s83V cannot succeed. 68. It is also clear, for the reasons that follow, that the failure of the prosecution to furnish copies of the statements to the defence cannot be regarded as a material irregularity. 69. The statements to the effect that Yong and C.H. Low had previously committed forgery were not central to the issues which were before the court. 70. Forgery was alleged in respect of two documents. The 1st was the schematic diagram which was intended to illustrate the movement of moneys part of which the appellant admitted he was the author. The allegations of forgery related to the four sentences in handwriting appearing above the diagram. In his summing-up Keith J referred to the inconclusive nature of the evidence before the court and suggested to the jury that the meaning of the words was ambiguous and equally supported the contentions being advanced by the defence on the subject of the movement of funds. This evidence clearly was not central to the issues before the court. 71. The other document subject to an allegation of forgery was the bank mandate which was lodged with the KWB after completion took place on 17 August 1985. This mandate was lodged with the bank on 2 September and the date appearing on the document is 2 September. This was a controversial issue at the trial. According to Yong the appellant acquiesced in the delay in submitting the mandate to the bank and also agreed to the date being changed from 17 August to 2 September. 72. The defence case was that there was no such agreement. Yong had not acted with the appellant's agreement in postponing lodging the mandate with the bank and had no authority to change the date. 73. If the appellant's evidence was accepted and Yong's rejected it is true that she would have been guilty of forgery. The issue however which was squarely before the jury was whose evidence was to be believed. The fact that on some previous occasions she had according to the contents of Lim's statements signed documents in other people's name would not have taken matters further. It is true that if evidence to this effect was admitted it would further damage Yong's credibility. It was of course clear that Yong was being presented as an accomplice and relevant warnings were given to the jury. If the material had been available it could have been put to Yong in cross-examination. If she denied it evidence in rebuttal would not have been called. 74. Mr Plowman submitted on the authority of R. v. Funderburk (1990) 90 Cr.App.R.466 that there were exceptions to the rule that rebuttal evidence could not be called where the issue was a witness' credibility. Whereas we accept that there are exceptional circumstances in which a matter may be so central to credit and so closely related to the subject matter of the indictment that evidence in rebuttal of a witness' answer ought to be permitted, Lim's evidence would not have been admitted on this basis. His evidence would have been inadmissible. 75. There was no basis for acceding to the application to admit evidence from Lim under s83V and the defence have failed to establish that the failure of the prosecution to make this material available to them amounted to a material irregularity. Audio tapes 76. The appellant places reliance principally upon s83V(1) in support of the application to admit the 22 tapes and the transcript of them as additional evidence in the appeal. The basis of the application is that it is "necessary or expedient in the interests of justice" to make such an Order. 77. Mr Thomas QC for the Crown on this part of application submitted that as a matter of principle the court should not accede to the application. The reason for this was that this was not a case of non-disclosure of the tapes. It was a case of late disclosure. He accepted that the existence of the tapes should have been disclosed much earlier. This acceptance was based on the fact that at the least there was material on the tapes which could have been used by the appellant's legal advisers to further damage the credibility of the main prosecution witness C.H. Low. 78. It was clear that on 16 June 1994 while the defence case was being run Mr Aiken did inform Mr Corrigan and Mr Marash of the existence of the tapes. There is a dispute as to exactly what was said but as invited we deal with this application on the appellant's version. It is not in dispute that the existence of the tapes was made known to the appellant's legal advisers. 79. In accepting the appellant's version of what transpired one of the matters which was referred to by Mr Plowman was the allegation that Mr Aiken had advised Messrs Corrigan and Marash that he had been informed by ICAC that the material on the tapes was not relevant to the charges in the case. 80. Even assuming the accuracy of this statement it does not assist the appellant. It would have been unwise of counsel to accept such an assurance as it would not have been known to the officers in ICAC exactly how the defence was going to run its case. We do not accept that this would have been a matter which the defence would have placed any reliance upon. 81. In his affidavit Mr Corrigan gives reasons why a decision was made not to make an application to Keith J in respect of the tapes. The reasons given are not convincing. In effect he said that it was too late as the appellant was still giving evidence and he could not obtain appropriate instructions . Also as it would take weeks to listen to the tapes and get them transcribed no useful purpose would be served in raising the matter with the judge. 82. Neither Mr Corrigan nor Mr Marash dispute that Mr Aiken informed them that he could arrange for C.H. Low to be available for further cross-examination and that he would not oppose any application Mr Corrigan may wish to make for an adjournment. 83. The fact that no application was made to Keith J is important. He was in a far better position than the Court of Appeal to consider and evaluate the ramifications of late disclosure of the tapes. He would have been able to make a decision as to whether an adjournment was required and whether the interests of justice required that C.H. Low should be re-called for further cross-examination. What is clear is that there was no justification for the decision being made by the defence team rather than the judge, not to take matters further, when this important disclosure was made. It is always the duty of the defence to obtain all relevant material which may be of assistance to the defence or which may call in question the prosecution case. 84. It is difficult to avoid the conclusion that a conscious decision was made not to raise the issue of the late disclosure of the tapes prior to the jury's verdict and keep the issue in reserve as a ground of appeal should the appellant be convicted. This was not a proper course to adopt. The Privy Council considered a similar situation in R v. Rodolpho de los Santos [1992] 2 HKCLR 136. Lord Lowry said at 150.
85. As the rule requires the court to determine whether the interests of justice require that the additional evidence be considered it is necessary to weigh the significance and importance of the material referred to in the tapes. Before doing so it is necessary to take cognisance of the context of the material. 86. The conspiracy charged was just one prosecution which formed part of a substantial investigation arising from the difficulties encountered by the KWB. C.H. Low was one of the Directors of the said Bank and was himself prosecuted successfully in respect of some of his acts and defaults. The investigation was a large and complex one involving 1385 individuals. Most importantly the purpose of the interviews which are the subject matter of the tapes was to debrief C.H. Low. This debriefing was undertaken after C.H. Low had made his witness statement for the trial below. Generally the majority of the matters referred to were background material rather than being of direct relevance to the issues relating to this case. What needs to be borne in mind is that the conspiracy in question related to a fraud on a public company which was alleged to have occurred in 1985. The victims of the fraud were the shareholders of the company. The main issue which was before the jury was whether the appellant was a party to the scheme which was resorted to of constructing a circle of cheques which resulted in the $127 million purchase price effectively being withdrawn immediately after the payment was effected. What was very clear throughout the trial was that the main witnesses namely C.H. Low, Yong and Quek were accomplices and that Keith J had emphasised in his directions to the jury the dangers attendant upon placing reliance upon testimony given by such witnesses. There was a great deal of material on the tapes which had some bearing on the background to the events which occurred in 1985. Mr Plowman helpfully reduced the material to a number of what he described as being "main points" which he submitted were of particular importance to the conduct of the present appeal. He made detailed submissions on these. C.H. Low's motives to lie (i) To secure an immunity for his mistress Yong. 87. The simple answer to this was that when C.H. Low gave his evidence Yong already had an immunity. 88. Mr Plowman submitted that C.H. Low had referred on the tapes to all the problems which existed if Yong remained in Taiwan including the fact that both she and the son she had borne him would have been vulnerable to triad elements in Taiwan. This part of the submission has been effectively answered by the present factual situation. Notwithstanding these fears and the fact that Yong did obtain an immunity she is or was until recently resident in Taiwan. The material on the tapes on this subject appears not to be of any assistance to the appellant. (ii) C.H. Low's ill feeling towards the appellant. 89. There can be no doubt that there are a number of passages on the tapes which clearly indicate that there was no love lost between these two men. Mr Plowman submitted that it was evident that C.H. Low hated the appellant. This is probably correct. However this was hardly breaking new ground. At the trial C.H. Low agreed that he had been furious with the appellant as a result of the civil proceedings he had seen fit to institute. He also agreed that he had been quite prepared to deceive the appellant on important matters on least two occasions. He had also been prepared to be instrumental in writing a number of poison letters to prominent people in Hong Kong blackening the character of the appellant. 90. We have no doubt that the jury were fully aware of C.H. Low's feelings towards the appellant and the addition of the material on the tapes would have added nothing. (iii) The time when C.H. Low started an intimate relationship with Yong. 91. Mr Plowman submitted that it was evident from the tapes that intimacy had first taken place in 1984 and not 1986 as claimed by both parties at the trial. The significance of this was that C.H. Low would almost inevitably have been anxious to protect Yong and any action taken by her from a much earlier time. 92. Mr Aiken took us through the relevant parts of the transcript of the tapes. We accept his contention that at best there is ambiguity as to when the affair started. 93. There was the observation by Keith J in his summing up that it was unlikely that the affair had started in 1984 as at that time Yong as his secretary was making reservations at restaurants for C.H. Low to accompany various girl friends to meals. 94. Be that as it may this is a non point. It may well have been the case that C.H. Low felt affection towards Yong even in the absence of a physical relationship. There is no reason to suppose that he would necessarily have been less protective towards the lady simply because there was an absence of sexual intercourse. Conversely even if a physical relationship existed it does not necessarily follow that C.H. Low would have protected her interests. 95. Also of course the fact that Yong may have been acting at the instigation of C.H. Low would in no way reduce the criminality of her acts. It would only amount to some mitigation. The tapes do not take matters any further. C.H. Low's desperation to sell his and Victor Tan's shares in IHD 96. Mr Plowman contended that the extracts from the tapes which established this were important as they shed light on the negotiations and background of the sale which was at the centre of the conspiracy. 97. The difficulty with this submission is that there is very little difference between what is said in the tapes and the evidence given by C.H. Low at the trial. C.H. Low admitted in cross-examination that he had been anxious to sell. We agree with Mr Aiken's contention that anxiety to sell and desperation to sell is a matter of semantics. 98. However even if C.H. Low was desperate to sell the shares it is significant to note that in December 1985 he offered to buy back the shares at a price which would give the appellant a profit of $20 million and this offer was refused. 99. Mr Plowman placed emphasis on the importance of the sale to C.H. Low and the pressing need for funds and that this had been the reason for what had been described as the "cozy" terms of the agreement between the parties. To make sense of this it is necessary to have regard not only to C.H. Low's position but also the position of the appellant. He went along with the "cozy" terms. He made a false statement in the underlying agreement to the effect that the balance of the purchase moneys, $127 million had been paid when this was not the case. 100. What is of significance is that the idea of the sale being dictated by C.H. Low's desperation is inconsistent with the facts of the case. Had C.H. Low been desperate to sell the shares it is unlikely that he would have agreed to what was described as the vendor financing arrangement. 101. Perhaps the most important aspect of the case which was before the jury was the fact that the appellant never paid the balance of the purchase price. 102. Having said all of this it must be added that, as submitted by Mr Aiken, C.H. Low's motives for the sale were irrelevant and immaterial. Any attempt by the defence to canvass these motives would probably have been frustrated as Keith J would have been unlikely to allow this material to have been utilised. Mr T.H. Quek 103. Mr Plowman submitted that the defence cross-examination of this witness was gravely handicapped as a result of their not having available to them the material referred to by C.H. Low on the tapes. Had this material been available they would have been able to effectively attack his evidence that he was simply a dupe acting at the behest of C.H. Low. This emerged as Mr Plowman's main point on non-disclosure. He argued that it was apparent from what was said on the tapes that Quek's role had been far greater than simply acting on C.H. Low's instructions. He had a substantial interest in IHD himself and may have had a motive for testifying against the appellant. 104. Mr Aiken dealt with this submission in some detail. He took us through the statements which had been given by C.H. Low, Yong and Quek himself together with two lengthy cautioned statements made by Quek on 12 and 13 June 1987. There was a substantial amount of material in these statements relating to Quek's background, his overall financial situation and the dealings he had had with the KWB and the Low brothers. 105. In addition to this the prosecution had made available to the defence the records of the KWB including Quek's credit position with them and the basis upon which the bank was prepared to grant to him credit facilities. It was evident from these records that Quek had been a man of some financial substance independently of the Low brothers. Most if not all of the matters referred to by C.H. Low on the tapes was available to the defence had they taken advantage of all of these sources. 106. Mr Aiken submits that the defence did not see fit to take advantage of this material at trial so that there is no reason to believe that the cross-examination would have been any different had the tapes been available. We agree. 107. What is of further importance in connection with this application is that none of the material on the tapes deals directly with the central issue of the appellant's case namely whether he was aware of the circle of cheques at the completion. Nor does the material shed light upon any possible motive Quek may have for framing the appellant. 108. It needs to be borne in mind that Quek was put forward as an accomplice and Keith J gave the usual warnings relevant to such evidence. Late Discovery by CH Low of the failure of Victor Tan to repay any of the IHD borrowings 109. There was a great deal of material on the tapes on this subject. 110. Mr Aiken dealt with all of the matters referred to by Mr Plowman in his outline argument. What does emerge from all of this was that C.H. Low did eventually realise that there was no prospect of the IHD loans to the KWB being repaid. This realization may have been a factor in C.H. Low's motivation to attempt to pass on the problem to a purchaser of a substantial block of shares in the company. 111. All of this needs to be considered in the context of the financial arrangements which were being negotiated. The only moneys being paid by the appellant was the $109 million which he through his company had borrowed from the KWB. According to C.H. Low it had been the intention that the liability for the balance of the purchase price was to be assumed by the appellant. The appellant had - according to him - pleaded with him to devise a scheme whereby payment of the balance could be deferred. 112. The material on the tape would have been of extremely limited use to the defence. At best it may have shed some light on C.H. Low's motivation at the relevant time. What C.H. Low or the appellant's motives may have been is not a relevant matter. What they did was what was important. Perhaps the main significance of this evidence is that it is the strongest support for what Reid says in his affidavit. In his affidavit he claims that C.H. Low told him that one of the most important matters was his realization at a very late stage that IHD's indebtedness could not be discharged and hence the necessity to find a solution to the problem. He had been advised by Victor Tan that the proceeds of the sale of the four floors had been applied for other purposes. There is however nothing very novel in all of this. This may have been of some relevance to C.H. Low's motivation. It cannot however be said to have had a direct relevance to the main issues which had to be determined by the jury. Doreen Yong 113. Part of this material has already been dealt with under the earlier heading of C.H. Low's motive to lie. It is not necessary to repeat the alleged inconsistencies concerning the time when the admitted friendship became an intimate association. 114. Mr Plowman submitted that the material on the tapes concerning Yong would have assisted the defence. In particular the defence had been unaware that when Yong had prepared her detailed statement she had been in possession of not only the files and papers relating to IHD's civil proceedings but also the affirmations which had been prepared by C.H. Low. 115. One matter which emerged from this was that Yong had not referred in her first statement to the rehearsal meeting prior to completion when the parties rehearsed what would be done at completion taking cognisance of the "round robin" scheme or the circle of cheques procedure which had been decided upon. Mr Plowman argued that this was significant as Yong had subsequently given evidence of the existence of such a rehearsal. This strongly supported the existence of collusion between Yong and C.H. Low. 116. This is not however by any means conclusively established. When Yong made her initial statement she had not been asked about the rehearsal meeting. When she was asked she remembered it and the details she gave of the meeting did not correspond with the evidence given by other witnesses. 117. Mr Plowman submitted that the most important evidence on the tapes relating to this lady was the rather reluctant admission by C.H. Low that Yong had been guilty of forgery. Had this admission been known to the defence a much more effective cross-examination of Yong could have been mounted. 118. We are unable to agree. We have earlier commented upon Yong's alleged forgery, and no useful purpose would be achieved in repeating the observations we have already made. 119. Mr Marash for the appellant submitted that the alleged forgery of the mandate was a critical piece of evidence on account of the fact that if the dates had not been changed it would have been impossible for the cheque kiting operation to be effected. For reasons given later this submission is plainly wrong. 120. The fact remains that Yong denied forging the mandate and this denial appears to have been accepted by the jury. We think that even if the contents of the tapes had been known to the defence the outcome would inevitably have been the same. The issue was before the jury and Yong was fully cross-examined upon it. Lending limits 121. Mr Marash did not develop the material in Mr Plowman's outline argument. We considered the points. There is nothing in them. Conclusion on audio tapes 122. In our view, the tapes should properly be considered as unused material. Undoubtedly they should have been disclosed to the defence at a much earlier date. It is a matter of importance that the disclosure of the tapes was not made known to Keith J during the trial as he was in a far better position than this court to evaluate the effect of the late disclosure and make an order which would provide for the interests of all parties. The decision not to make an application while not necessarily fatal does have a significant bearing on the outcome of this application, we must still consider whether in these circumstances it is expedient or in the interests of justice that the application should be acceded to. 123. Having regard to the material on the tapes, Mr Aiken has made good his submission that nothing new of importance has been revealed and that the material is exclusively peripheral to the main issue before the jury whether the appellant was a party to the conspiracy in the first charge. 124. The tapes ought to have been disclosed timeously to the defence. They were not disclosed until late. Defence counsel chose not to raise this late disclosure with the judge to obtain his ruling upon the matter. This late disclosure was an irregularity in the trial but for the above reasons it would not have made any difference to the outcome and in all the circumstances it was not a material irregularity. 125. The result is that these grounds of appeal fail. Nor do the matters raised have any material impact upon the remaining grounds of appeal. Ground 3 126. This was that the learned trial judge erred in failing to remind the jury of the evidence of dishonest collaboration of C.H. Low, Yong and Quek in 1986 in relation to their defence in civil proceedings, in failing to direct the jury to approach their evidence with great care and sustained suspicion and by misdirecting the jury to ignore the evidence of Yong in regard to the meeting of 16th August 1985. 127. A considerable amount of time was spent on this ground. 128. It was undoubtedly true that there had been collaboration between all of the conspirators in relation to the civil proceedings which the appellant had commenced at the beginning of 1986. 129. It also has to be borne in mind that in effect the appellant was the plaintiff in those proceedings and C.H. Low, Yong and Quek (inter alia) were the defendants. 130. On the one hand this would have provided a strong motive for the conspirators to testify against the appellant. On the other hand it is perhaps not surprising that co-defendants should if possible present a plaintiff with a common front and it would be understandable that there should be some collaboration to ensure that the defences which they would be running would not be inconsistent with the defences filed by their co-defendants. That would not necessarily be improper. 131. The question which we have to consider is whether in all the circumstances of the case the directions given by Keith J were such that the appellant received a fair trial. 132. Both Mr Plowman and Mr Marash submitted that the directions which were given to the jury were inadequate and unsatisfactory. Where in a case such as this where there may well have been collaboration between the main prosecution witnesses it was particularly important that assistance should have been given to the jury on inconsistencies in the evidence given by these witnesses not only in the trial below but also in the civil proceedings. 133. One of the areas where there were numerous and important inconsistencies was on the subject of the rehearsal meetings allegedly arranged to ensure that when completion was effected it would be possible to set in motion what has been described as the cheque firing scheme whereby the purchase moneys for the shares would immediately be withdrawn and utilised for other purposes. This was at the centre of the conspiracy the subject matter of the first count. 134. In her first statement to ICAC Yong did not make reference to any rehearsal meeting. At the trial she gave evidence of a meeting in C.H. Low's office at the KWB on the evening of 16 August which was attended by herself, Quek, Chew and C.H. Low, who talked to the appellant on the telephone during the meeting. Shortly after giving this evidence the court adjourned as Yong claimed to be feeling unwell. 135. When the court next resumed, Yong remembered another rehearsal meeting at the coffee shop of the hotel at which either Quek or Chew had been staying. Besides herself this meeting had been attended by C.H. Low, Quek and the appellant. This evidence was at variance with the evidence given by C.H. Low and Quek. C.H. Low said that the meeting on 16 August had been in Quek's hotel room and that it had been attended by himself, Quek, the appellant and Yong. 136. According to Quek the meeting on 16th had been in the lounge of the hotel at which he had been staying i.e. the Regal Meridien. It was attended by himself, C.H. Low and the appellant. 137. In summing-up on this subject Keith J said at p.151:
138. Mr Plowman submitted that this direction was unsatisfactory. Having regard to the background of the case and the possibility of collaboration it was necessary to direct the jury on the possibility that some or all of the evidence may have been fabricated. 139. This is a matter which cuts both ways. If there are significant inconsistencies in the prosecution case this of itself would be an indication of a lack of collaboration. Had the witnesses compared notes they would have ironed out the more obvious inconsistencies such as those relating to the location, number and dates of the rehearsal meetings. Keith J did give full directions on the absence of corroboration, the participation of the accomplices in the fraud on IHD and on the characters of these witnesses. He clearly left the general issue of collaboration to the jury. This was central to the defence case and cannot have been overlooked. No doubt this defence would have prepared this part of the summing-up to be differently expressed but the judge does not have to deal with any part in his summing-up and taking this summing-up as a whole this is not a material misdirection or unfair. This ground fails. Ground 4 140. This ground can conveniently be considered in two parts. The first part comprises a complaint that Keith J failed to alert the jury to inconsistent evidence on an important issue in the proceedings. 141. The second part is the complaint that the judge misdirected the jury when commenting upon C.H. Low's evidence upon how the $36 million should be treated in the documentation relating to the sale and purchase of the shares. 142. In determining whether the complaint on the first part can be sustained it is necessary to assess the importance of this issue. Dixon was according to Yong's evidence chosen as the vehicle to receive the assets which it was contemplated the appellant would be transferring to IHD. The complaint is made that Yong was performing executive functions in this company some weeks before the agreement was struck between C.H. Low and the appellant for him to acquire the interest in IHD according to C.H. Low's evidence. 143. The other complaint of inconsistent evidence is that C.H. Low's testimony that he informed the appellant of the $36 million which was owed to IHD cannot be reconciled with Yong's evidence relating to Dixon on the subject of timing. C.H. Low claimed that it was only at a late stage that he came to know that Victor Tan had syphoned off these moneys and that they could not be replaced at short notice. This evidence was inconsistent with the evidence to the effect that C.H. Low had informed the appellant at an earlier date of the exact amount which would be repaid on completion. 144. Although Dixon did form an integral part of the alleged scheme it is artificial and misleading to have regard to this evidence in isolation. 145. At the time when the moneys referred to were being withdrawn by Yong no contract had been entered into between the appellant and C.H. Low and certainly the appellant had not assigned any assets to Dixon. At that stage there were only discussions concerning possible intentions. 146. Also it is necessary to bear in mind that C.H. Low did not give evidence which was directly conflicting with Yong's. Mr Plowman was attempting to read too much into C.H. Low not commenting on the matters Yong had referred to in her evidence. C.H. Low did give evidence of how the scheme was to operate. He did so in fairly general terms and did not condescend to detail as did Yong. 147. Having regard to the enormous amount of evidence covered by Keith J in his summing-up it is understandable that he did not outline the differences in the approaches of these two witnesses to this aspect of the case. 148. In any event Mr Corrigan had put the defence case with some force before the jury and they were fully acquainted with the contentions being advanced by the defence. 149. The second part of this ground relates to the way in which Keith J summed up to the jury on C.H. Low's explanation for not providing for the repayment of the $36 million in the sale and purchase agreement. 150. Keith J said at p.104:
151. It is true that the withdrawal of the $36 million was effected subsequent to the period of the unaudited accounts which were referred to in the agreement. 152. All that Keith J was saying to the jury was that there was some rationale to the explanation which had been given by C.H. Low. He was not saying that it was a plausible or convincing explanation. 153. The important point however was that it was common ground that the appellant did - prior to completion - know about the $36 million, and the explanations given by C.H. Low and the appellant were clearly matters which were before the jury and it was up to them to decide which version of the evidence was to be accepted. 154. That leaves the complaint on the rather technical accounting point as to whether clause 7 of the Agreement would provide the necessary protection in respect of the moneys. Mr Aiken contended that as this problem had not been put to C.H. Low when he gave evidence it was not now open to the defence to raise the matter on appeal. Perhaps C.H. Low might have been able to provide an explanation if he had had an opportunity to do so. There is considerable merit in this submission. 155. In our view this ground of appeal has not been made out. 156. We reject this ground of appeal. Ground 5 157. Ground 5 complained of a number of factual misdirections and failures to direct. Having been addressed upon them at some length, we think they can be disposed of relatively shortly. 158. The principal matter to which they relate are aspects of Yong's conduct and evidence. We have already dealt with much of those. Undoubtedly, Yong's evidence was less than satisfactory. Almost certainly she was either telling lies in relation to the mandate or her memory of the details was defective. The defence succeeded in establishing that the mandate dated 2 September 1985 had originally been dated 16 August and had been amended to the former date. The consequence of this was to destroy the explanation which had been given by Yong for the delay in lodging the mandate namely the absence of Peter Lo the solicitor who it had been proposed would be one of the signatories of the IHD account. According to Yong's evidence Mr Lo had been on leave and out of Hong Kong from after 16 August. 159. The defence submitted that this was an issue of critical importance because if the mandate had been lodged as had been intended on 17 August it would not have been possible to set in motion the circle of cheques which was the subject matter of the conspiracy. 160. This is not the case. For the whole scheme to make any sense it must have been intended that the sequence of events at completion would have necessitated the presentation of the cheques prior to the lodging of the mandates. What it all boiled down to eventually was who was to be believed Yong or the appellant. There were some indications that Yong did indeed have authority to defer lodging the mandates. It would appear that the Dixon mandate was also dated 2 September. 161. It seems inherently unlikely that the appellant would have agreed, as he claimed to have done in his evidence, to sign the Board resolution relating to the mandates leaving the date in blank. 162. Another complaint, the so-called "plundering" of the account after 17 August, is not necessarily indicative of the appellant's version being the truthful one. Many of the items were of a relatively minor nature. Even the larger payments might have been consistent with the expenditure being properly payable by the new management of IHD despite the signatures being those of the previous management. 163. At the conclusion of the summing-up Mr Corrigan informed Keith J that he was not satisfied with the way in which this subject had been treated in the summing-up. He made a submission to him as to how he considered the matter should be dealt with. 164. Keith J then gave at p.214 as further directions those complained of in this ground. 165. Taken together with the immediately following passages at pp.215 and 216, they form, in our view, accurate statements of the position which cannot be faulted. The evidence was all squarely before the jury and it was for them to decide the issue. We find no merit in this ground. Ground 6 166. Ground 6 was that the judge failed adequately or at all to deal with three matters that illustrate the illogicality of the conspiracy charged. 167. In hindsight, we have to say that we can see considerable merit in Mr Aiken's submission that it is not a constructive exercise to attempt to justify the logic of these various partly criminal transactions to the participants or alleged participants in the scheme. Doing so almost inevitably involves indulging in fruitless speculation. 168. It is however necessary to make the point that the submission upon the first of the three matters advanced is obviously misconceived. It was submitted that the conspiracy involved the appellant transferring assets worth $127m to IHD for a 60% interest in place of the 100% interest he and an associate formerly held, resulting in a direct loss of $50.8 million. 169. On the evidence the purchase price for the 60% interest in IHD was $232 million. This had to be paid for. The total value of the company was on the material available far in excess of $232 million. Rather than sustaining a loss in the order of $50 million the evidence indicated that the appellant would gain approximately $40 million. 170. This point and the other two were all before the jury, and Keith J's directions accurately set out what had to be decided. 171. There is no substance in this ground. Ground 7 172. The complaint made in this ground is that in the matters which are referred to Keith J attributed various theories and arguments to the Crown. It has to be said that these matters, even the two particularly relied upon before us, are peripheral to the central issues. 173. The simple answer to the complaint is that while the judge did make comments upon the evidence referred to, he did not advance any theories but left all of the matters open to the jury, and moreover did so in a way that was fair. We reject this ground also. Ground 8 174. This is as follows:-
175. There is no merit in this ground. From the surrounding circumstances it was improbable that the loan was a genuine loan. As pointed out by Mr Aiken $89 million represented something of the order of 25% of the total assets of the IHD group of companies. 176. Keith J did not say that the loan constituted a fraud. The remarks he made were moderate and would not have unfairly influenced the jury. Ground 9 177. Ground 9 is as follows.
178. With the rejection of all the earlier grounds, this final ground does not come into play. It is, in any event, misconceived. The Crown presented its case on the basis that both counts were separate and independent of each other. This was clearly the case. Even if the appeal was successful on the first count, that would not be fatal to the second count. 179. There is no merit in this ground. Conclusion 180. Having found that there is nothing of significance in the grounds of appeal individually, we turn to their cumulative effect, upon which the appellant relied primarily. 181. In a case of the present factual complexity, length and sheer volume of evidence, it would be remarkable indeed if there was nothing in the summing-up which could be questioned. But all such matters that have come or been brought to our attention are, in our view, immaterial for the reasons we have given. Having reviewed the entire summing-up, particularly in the context of counsel's submissions and the grounds of appeal, there is no misdirection of law or fact that is material. The facts and the issues were fully and fairly left to the jury. Given the volume of evidence and the complexity of the matter, we think the judge admirably identified the questions to be addressed and reviewed the evidence in relation to them in a commendably helpful and fair way. 182. The jury were properly directed upon the law and the issues were clearly left to the jury for their decision. It was supported by considerable circumstantial evidence and it was open to them to accept the prosecution evidence. On this evidence the case was overwhelming. We have no hesitation in dismissing the appeal against conviction. 183. We add that in the light of the latter we are satisfied that the verdict is not unsafe or unsatisfactory, and that the jury would not have come to any conclusion other than that they reached even if all the appellant's complaints had been fully met in or prior to the summing-up. 184. Before we leave this matter, we wish to record our concern about the somewhat cavalier attitude of the particular ICAC officers concerned to the duty of disclosure of material that is or may be relevant. The discharge of that duty is to be measured, we think, not by the actual knowledge or difficulties of the prosecution or departments concerned, but by the potential effect upon the defence of the accused and the extent to which it may be assisted or prejudiced. Although we have fortuitously been able to discount such prejudicial effect, it has to be said that the circumstances and evidence point strongly not merely to lack of endeavour to identify and locate relevant material commensurate with the duty of disclosure, but to what seems to have been conscious failure to disclose. We direct, in the circumstances, that a copy of this judgment be sent by the Registrar to the Commissioner of the ICAC, in order that he may give the matter due consideration.
Representation: Mr Nigel Aiken QC and Mr Andrew Chow for Crown Prosecutor Mr Gary Plowman QC and Mr Daniel Marash (Haldanes) for Applicant |