Read the full judgment text of CACC 000347/2001 on BabelCite. This Court of Appeal judgment was delivered on 20 December 2002 before Woo JA, Stock JA, Yeung JA.
Criminal law – conspiracy to defraud – secret profits – kickbacks – inflated machine prices – sufficiency of evidence – appellate review – use of accused's silence – expert evidence – Criminal law – conspiracy to defraud – six contracts for purchase of PVC machines by Kingston PVC Company Ltd and Wide Loyal Industries Ltd from Wing Ka Engineering Company at allegedly inflated prices – A1 was shareholder and technical director of Kingston and secretly served as consultant and deputy general manager of Wide Loyal – A1 caused both companies to purchase machines from Wing Ka, run by A2 and A3, and received kickbacks of over $3 million from Wing Ka's sale proceeds – defence claimed prices reflected genuine machine enhancements and that payments to A1 were for design and consultation work – whether there was sufficient evidence to support the trial judge's finding that prices charged to Kingston and Wide Loyal were grossly inflated by 30% to over 60% and directly linked to the payments to A1 – held, trial judge's findings amply supported by the evidence – quotations to other customers showed identical machines at much lower prices – payments to A1 matched contract proceeds to the cent and were recorded as 'refunds' or 'on behalf of Mr. Kwan' rather than as consultation fees – alleged special features of machines were never identified or proved by the applicants despite their expertise – whether the trial judge improperly used A3's silence to draw adverse inferences of guilt – held, no misdirection – an accused is entitled to remain silent, but failure to give evidence means there is no defence evidence to undermine the prosecution case – judge expressly stated he drew no adverse inference from A3's silence and the approach was correct – appeal standard of review applied, requiring the evaluation of evidence to be shown to be absent, irrelevant, lacking, careless or flawed in a substantial way – applications for leave to appeal against conviction dismissed – convictions upheld.
Legal issues: Sufficiency of evidence to support finding of grossly inflated prices and conspiracy to defraud · Whether trial judge improperly used A3's silence to draw adverse inferences
Outcome: Applications for leave to appeal against conviction dismissed; convictions on all six counts of conspiracy to defraud upheld.