The Queen v. Richard Frank Handforth and Others
Read the full judgment text of CACC 361/1984 on BabelCite. This Court of Appeal judgment.
1. On the 26th July, 1985, save with regard to the application of the second defendant in relation to the 12th charge which was, allowed, the conviction and sentence on that charge being set aside, we dismissed the applications of the first four defendants named above for leave leave to appeal against conviction and sentence but modified the financial penalties imposed on the first three applicants. We now give our reasons.
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Criminal Appeal [Applications by D1 to D4 for leave to appeal against convictions on a charge of conspiracy and a number of substantive charges under the Theft Ordinance Cap. 210 and the Prevention of Bribery Ordinance Cap. 201 were dismissed as were their applications in relation to sentences of imprisonment. The only point of general interest concerns the orders for forfeiture made by the trial judge purporting to act under S. 12A of Cap. 201.] Headnote Orders of forfeiture relating to unexplained pecuniary resources purportedly made under S. 12A(1) of Cap. 201 not competent where the substantive charges alleged specific sums received by way of advantage contrary to the provisions of S. 4(2)(a) of Cap. 201. Powers of Court in this regard limited to those contained in Section 12(1) of Cap. 201 both as regards the substantive charges and the conspiracy charge which alleged a conspiracy to act in breach of the provisions of S. 4(2)(a). IN THE COURT OF APPEAL Criminal Appeal BETWEEN
_____________________________ Coram:. Hon. McMullin, V-P., Li, .V.-.P, & Yang, J.A. Date of hearing: 4th - 7th June, 1985 and 9th, 24th - 26th July; 1985. Date of Handing down of Judgment: 22nd August; 1985. ___________ JUDGMENT ___________ McMullin, V. -P. : 1. On the 26th July, 1985, save with regard to the application of the second defendant in relation to the 12th charge which was, allowed, the conviction and sentence on that charge being set aside, we dismissed the applications of the first four defendants named above for leave leave to appeal against conviction and sentence but modified the financial penalties imposed on the first three applicants. We now give our reasons. 2. Section 7(1) of the Gambling Ordinance Cap 148 makes it an offence for any person to engage in bookmaking. This notwithstanding, the various enclosures of the Royal. Hong Kong Jockey Club in its several premises are not infrequently infiltrated upon race days by persons plying this illegal trade. As may well be imagined their presence is not welcomed by the management of the Club. The Club possesses a separate security department in which are employed persons charged, among other matters, with the duty of detecting the presence of such private entrepreneurs and, in conjunction with regular patrols of police in attendance upon such occasions, effecting their arrest, interview and ejectment from the premises 3. In 1981 Richard Frank HANDFORTH vas second-in-command in the security department under its head Mr. M.D.G. Jones. Handforth had previously been employed by the Independent Commission Against Corruption. Immediately subordinate to him was Jeffrey YIP Hang, the Assistant Security Manager, who had formerly been employed as a superintendent of police in the Criminal Investigation Department in Brunei. It was part of the duties of these two to interview and "vet" persons aspiring to membership of the Club for the purpose of reporting to the relevant committee upon their suitability. 4. The security department also employs some part-time security officers. In 1981 one of these was David KHAN Kee- hung whose regular job was caterer to the Hermitage in MacDonald Road. Another was a young woman, Clara CHAN Moon-yi. These two were charged with the specific duty of combating illegal on-course bookmaking. They were directly responsible to Handforth and Yip. 5. These four persons arc respectively the first, second, third and fifth applicants upon this appeal. The fourth applicant, Margaret Mary HANDFORTH, is the wife of the first applicant, she was not employed in any capacity by the Roya1 Hong Kong Jockey Club. 6. Investigations by the officers of the I.C.A.C. in 1981 had uncovered evidence of what appeared to be a protection racket in operation involving members of the security department of the Royal Hong Kong Jockey Club. The five applicants were arrested in March 1981. Investigations proceeded and the suspects were interrogated. They were subsequently charged with a number of offences and were tried in the District Court together with an illegal bookmaker NG Wai-chung who became the sixth defendant in the case. 7. The principal charge, relating to all six defendants, was conspiracy contrary to Common Law and Section 4(1)(a) of The Prevention of Bribery Ordinace Cap. 201 ("The Ordinance"). All save NG Wai-chung were convicted of it, at he end of a trial extending from the 16th of April 1984 to the 12th of July 1984. The first three applicants Handforth, Kwan and Yip received sentences of four years for that offence and were ordered under Section 12 (c) of the Ordinance - to forfeit sums of 1,225,000, 1,200,000 and 1,465,000 respectively. 8. The two women defendants, Mrs. Handforth and Clara Chan, were given sentences of two years suspended in each case for three years. Clara Chan was in addition ordered to forfeit $100,000 9. NG Wai-chung who faced only one other charge illegal bookmaking - emerged unscathed from the trial when later on in the proceedings the Crown entered a nolle prosequi in his regard in relation to both charges. Subsequently under an immunity from the Attorney General he gave evidence against his co-defendants. 10. Upon the hearing of this application Mr. Duffy Q.C. appears for the Crown With Mr: Harris; Crown Counsel. Mr. Scrivener, Q.C. with Mr. J. Hingorani, appears for the first four applicants. The fifth applicant, Clara Chan', did not appear and was not represented and we understand her whereabouts are at present unknown. The Charges 11. The first charge - conspiracy - is framed as follows :
12. Of 18 substantive charges (charges 2 to 19) three were dismissed in the course of the trial. These were the 10th and the 11th in which the first applicant had, been charged with wilfully making a false statement contrary to the provisions of Section 14(1)(a) of the Ordinance and the 13th charge in which the fourth applicant (Mrs. Handforth) had been charged with the same offence. The 14th charge was the subject of the nolle prosequi relating to the original sixth defendant. 13. The first three applicants, Handforth, Kwan and Yip were convicted on the second and third charges of offences against Section 4(2)(a) of the Ordinance, the substance of these charges being the soliciting and accepting of sums of money totalling $60,000 in September and November, 1982 from an illegal bookmaker LAM Kin-yiu in return for their services in furthering his application - ultimately unsuccessful - to gain membership of the Royal Hong Kong Jockey Club. The remaining charges concerned only Handforth & Kwan. 14. The 15th to 19th charges were added after the discharge of NG Wai-chung from the trial upon the entering of the nolle. 15. In the 15th charge Handforth and Kwan (first and third applicants) are charged with soliciting $100,000 from NG in return for their assistance in his successful application for membership in June 1981. The 16th and 17th charges - also taken under Section 4(2)(a) of the Ordinance- allege the acceptance on two separate dates of that sum- $40,000 in June and $60,000 in September 1981. 16. The remaining charges all concern the alleged activities, in September 1982, of Handforth and Kwan (applicants one and three) in obtaining for two of the illegal bookmakers, horse owners badges and carpark labels which would be of assistance to them in plying their trade within the Jockey Club premises on race days. The fourth, fifth and sixth are taken under Section 4(2)(a) and relate respectively to the acceptance of a sum of $10,000 from Hsia Tse ming for a set of horse owners badges; the acceptance of a sum of $30,000 for one horse owners badge on behalf of LAM Tai- kuen and SHUM Cham-chi; and the acceptance of a sum of $3,000 from SHUM Cham-chi and LAM Tai-kuen for supplying them with one Club carpark label. 17. The 7th, 8th and 9th charges relate to the alleged theft of those badges and the carpark label in the same month, Sepember 1982. 18. The 18th charge, also theft, concerned the alleged stealing of a carpark label in September 1981, this was intended for use by the former co-defendant NG Wai-chung. The 19th and final charge relates only to the first applicant Handforth. It alleges that he received a Rolex wrist-watch as a reward in respect of that carpark label. The case for the Crown in outline 19. What the prosecution set out to prove was that the applicants had entered into a corrupt association with a number of known illegal bookmakers who, over this two-year period, had regularly paid substantial sums of money to the third applicant, Kwan, on behalf of all the others. That, as a result, these individuals were protected from eviction from the precincts of the Jockey Club in Shatin and Happy Valley when, throughout that period, others not so protected were regularly dealt with in accordance with the powers of the security officers and the police. This corrupt abstention from the performance of duty was in the case of some few-of the illegal clients fortified by the positive acts of the first and third applicants in procuring for them the badges and labels which further facilitated those illegal activities. That in substance is the burden of these many charges. The Nature of the Proof tendered by the Crown 20. At the outset of his reasons for judgment the trial judge remarks that the case was not a complex one. In a sense of course that was perfectly true as will be clear from the outline given above. The proof of the charges was however far from simple and the Crown's task was from the outset complicated by the fact that it necessarily had to rely upon accomplice conspirators as the primary source of evidence against all the applicants. 21. Seven of the named co-conspirators including the original sixth defendant, NG Wai-chung, gave evidence for the Crown and a sumber of other witnesses who gave evidence were, to some extent, similarly tainted. 22. A prolonged ingenious and diligent investigation had uncovered a variety of other sources of evidence which the prosecution deployed in support of the charges. Thus over the period of this lengthy trial evidence from over 200 witnesses was introduced by the prosecution in various ways. 52 gave oral evidence. Statements of 127 others were read into the record under the provisions of section 65(b) of of the Criminal Procedure Ordinance. Agreed facts emanating from a further 36 were introduced under Section 65(c) and a large quantity of documentary evidence was introduced under the same provisions agreed either as to truth or as to contents. 23. This huge body of evidence was aimed at showing the following things :
24. This is, I think, a fair if not wholly exhaustive summary of the nature of the evidence which the prosecution adduced before the trial court in support of these several charges. The Task of the Trial Court 25. It will be evident that any trial court confronted with such a volume evidence would be impressed with two particular duties. Firstly, there would be the task of identifying the particular parts of the evidence which related to the conspiracy charge as it bore upon the case of each defendant. Secondly, it would be necessary to perform the same operation in relation to the substantive charges as they related to the relevant defendants while being attentive to the possibility that evidence which might be admissible on the principal charge might be inadmissible in respect to the other charges. Thirdly, there would be the problem of the, special character of the accomplice evidence and the need for corroboration. 26. Objections touching these three considerations are to be found amongst other matters raised by Mr. Scrivener in, his grounds of appeal. It is however in relation to the first of those considerations that the principal difficulty has arisen and it will be convenient to return to that 11 problem, covered by the first ground of appeal, having first considered the other grounds. The Grounds of Appeal 27. By way of clearing the ground it should be said at once that the eighth ground of appeal must succeed. This relates to the conviction of Yip (A2) under Section 14(4) of failing to comply with a notice issued under sub section l of that section. It is common ground that such a notice was served upon the applicant in which he was asked in some detail to give a full account of his properties and liabilities and of property sent by him out of the colony etc. It is common ground that he replied to that notice. What is said is that the investigations disclosed that his reply contained various falsehoods. To make a false statement in answer td such a notice constitutes an offence contrary to the provisions of sub-section 5 of Section 14. 28. With due respect to Counsel who seeks to support that Conviction we need only say that his argument, if correct would mean that sub-section 5 was otiose. These are distinct offences. The evidence showed that the second applicant did comply with a notice, however misleadingly or dishonestly and we have no power to substitute a conviction under sub-section 5 even if it be accepted that the information which he then gave was in fact false. Ground 2 29. A point was taken concerning the unusual procedure adopted by the investigating officers in insisting that the vital accomplice witnesses should swear to the truth of the contents of the several statements taken from them when the case was being prepared for trial. Mr. Scrivener does not suggest that this procedure - which Mr. Duffy admits to have been an unusual one - had the effect of rendering the evidence of these witnesses inadmissible. The matter, Mr. Scrivener says, is one of weight and the trial judge contented himself with approving the procedure and did not expressly attend to the possibility that, thus sworn, the witnesses might feel compelled to come up to proof, being aware that, if they did not, they stood in jeopardy of prosecution for perjury. 30. Mr. Duffy who had himself approved this procedure, told us that he did so because in his experience the course of justice has frequently. in recent years been impeded by tainted witnesses, to whose testimony the Crown has been compelled to resort, going back upon proof when. they came to trial. He pointed to the provisions of Section 80(b.) subsection 2(b) of the Magistrates Ordinance Cap. 227 wherein appears the declaration which is required of every witness who gives evidence at committal proceedings and who is thereby warned of the penalty for false testimony. He conceded that such provisions do not apply in cases taken before the District Court. He pointed out that in jury trials juries do not have to be warned about the provisions of Section 80(b). To this he added the consideration that in a retrial a witness who has given evidence at the earlier trial might be said to be under constraint to follow his earlier testimony to the letter since that was also upon oath or affirmation. 31. These observations, though apposite, are not necessarily compelling: Apart from the difference in the nature of the oath taken before the Commissioner and the wording of the declaration in Section 80(b) to which Mr. Scrivener drew our attention there is the perhaps more telling distinction that witnesses at committal proceedings, or at trials, who give evidence for the Crown are not usually morally suspect upon any ground which might tend to impeach the quality of their testimony; whereas, from the outset, the accomplice witnesses in the present case were recognized to be outlaws with a vested interest in deceit. 32. Nonetheless we are not prepared to say that the judge, when approving the course taken by the investigating authorities; could have been unaware that it might tend to restrain any subsequent - and honest - temptation to retract a falsehood. Ground 3 33. An attempt was made at the outset of the trial by Mr. Haldane, who then appeared for all defendants, to force the Crown to an election between proceeding on the conspiracy and the substantive charges. The Crown, it appears, was perfectly prepared to proceed with the substantive charges leaving the conspiracy on the file and subject to future direction by the court. But the subsequent argument appears to have become confused by Mr. Haldane's contention that this would mean that the conspiracy charge must never be proceeded with in any event. 34. Mr. Scrivener, quite properly, did not stand over that contention but he said that as a result of this confusion the judge did not in effect put the prosecution to their election at all. He did not contend that the joinder of these charges was in itself wrong. 35. It is regrettable that the Crown's offer was not taken up since it might well have meant that the trial would have been considerably shortened and simplified and the decision as to whether to seek leave to proceed with the conspiracy charge could have been arrived at within the persepctive of the needs of justice as they appeared at the end of the trial. However, that was not done and we cannot say that the judge was wrong to permit all these charges proceed to trial together. Grounds 4 and 5 36. Next we come to the important question of corroboration. Mr. Duffy at one point put the matter succinctly by saying that the entire case turned upon two things: the credibility of the accomplices, and the nature of the available corroboration. The trial judge expressly warned himself of the danger of the accomplice evidence and of the need for corroboration. He found the accomplice to be credible witnesses and he said that there was plenty of. corroboration. He did not however identify the evidence which he regarded as affording corroboration. 37. This is part of a wider difficulty which touches the reasons for decision more formidably when we come to consider the first and most important ground of appeal. It is a difficulty which springs from what must, with respect, be regarded as a somewhat unfortunate economy of method on the part of the judge when he came to disclose the manner in which he had resolved the issues of law and fact. In view of the line taken by prosecuting counsel in the court below, however, this particular deficiency is not as serious as it might otherwise have been. 38. In opening for the Crown at the trial, Mr. Chandler, Crown Counsel, indicated that the prosecution were relying Upon certain provisions in the Ordinance. Prominent amongst these is Section 21 -
It is not disputed that in the case of the first, second and third applicants the evidence did disclose considerable accretions of wealth. Of this Mr. Scrivener says, firstly, that it affects only the section 4 offences and, secondly, that subsection (1) of Section 21 must be construed as meaning that the fact to be proved is not that the defendant has failed to give a satisfactory explanation to the court but that he has failed to give a satisfactory explanation to the investigating authorities. He maintained that an opportunity of giving such an explanation was not afforded to the first, second and third-applicants in the present case. He conceded that the fourth applicant (Mrs. Handforth), when questioned made admissions amounting to guilty knowledge of the illicit provenance of some of the funds that came into the hands of her husband and herself. 39. Finally on this matter, Mr. Scrivener sand that in any event the judge did not disclose whether he was relying upon Section 21 in relation to corroboration. That is true and it is a factor which must be considered together with the other matters that call for consideration in relation to the first ground of appeal. 40. We cannot however agree with counsel's interpretation of Section 21. It is true that the draftsman of Section 21 did not provide, as he did in Section 10, that the explanation must be one specifically given to the court. But even where a suspect has been given an opportunity to explain his possession of "disproportionate property", and has attempted to do so, then, whether or not the investigating authorities are satisfied by the explanation, it will be for the court in the end to decide whether or not the explanation is satisfactory. 41. Counsel said that in any case taken under Section 4, where the suspect has not been given an opportunity of explaining his resources prior to trial, this reading of Section 21 would have the effect that he would thereby be deprived of his right to silence. That may be so but even in such a case - and it seems most unlikely that a suspect would never have been challenged in any manner to explain his resources in the course of investigation - once the evidence had established the relevant disporportion it is difficult to see what injustice could be involved in calling for an explanation at the trial stage. 42. But in any event as Mr. Duffy pointed out, the first applicant (Handforth) in the course of a lengthy interrogation by officers of the I.C.A.C. resolutely refused to explain the increase in his wealth while Yip (the second applicant), having answered a number of questions id several interviews concerning his family background and property, later said, When asked about a draft for $20,000 purchased in the name of CHAN Tai-wai on the 12th October, "I didn't send this one. I refuse to answer any more questions on bank drafts or any other matters."- He was not further interviewed ,thereafter. 43. The point of Mr. Scrivener's contention on this head was of course that if the accretion of wealth evidence was ruled out as corroborative of the accomplices under the provisions of Section 21, it would have been necessary for the prosecution to pinpoint. with considerable accuracy in the case of each defendant accretions of wealth and associated money movements sufficiently proximate in quantum and date to each particular bribe alleged by an accomplice as to show a clear nexus therewith. 44. Mr. Duffy denied that this was so. He maintained that counsel for the Crown at the trial was over-generous in seeking to rely solely upon Section 21. The unexplained accretion of wealth evidence was, he maintained, admissible and probative in relation to all the charges and might therefore, Section 21 apart, be looked at as corroborative of the accomplice evidence. That argument Goes too wide. No doubt all of that evidence was admissible and generally probative in filling out the picture relating to the alleged. conspiracy. Such evidence may well be corroborative in the true sense of the illicit agreement to which, on the evidence of the accomplices, the applicants had lent themselves. But even if, on Common Law principles, it was corroborative to that extent, it Could not afford corroboration in the true sense to the Accomplice evidence in relation to the substantive charges which included the accepting and soliciting offences and the theft offences unless those charges be regarded simply as particular instances of the activities constituting the conspiracy, precisely what is denied by the respondent. 45. Mr. Duffy, in the course of argument, conceded that while evidence relevant to the proof of the substantive charges could be taken into account in considering whether or not the conspiracy was proved, it would not be proper to hold all the evidence relevant to the proof of conspiracy as probative also of the substantive charges. 46. We are satisfied that the prosecution were entitled to rely and did properly rely upon Section 21 as making available to the court a wealth of evidence corroborative in the true legal sense. Moreover this is so not only in relation to the section 4 offences but also in relation to the conspiracy by virtue of the provisions of Section 12A of the Ordinance upon which counsel for the Crown in the court below specifically relied-
47. The theft charges of course stand outside these provisions. But if the accomplice evidence as to the soliciting and accepting of advantages for the purpose of procuring badges and carpark labels is held to be corroborated by the Section 21 material then, since that evidence includes the actual receiving of these advantages through the cooperation of the first and third applicants, and since it is common ground that none of the recipients were entitled to these advantages, it would be artificial to regard the acts whereby these badges and labels were procured - acts constituting theft from the Jockey Club - as resting on accomplice testimony which was wholly unsupported. In any event there was some additional evidence which might be regarded as corroborative of the accomplice evidence on some of these charges. Ground 6 48. Another point taken by Mr. Scrivener was that the judge was wrong to find that the evidence produced by the prosecution showed that Mrs. Handforth was a party to the conspiracy. The acts upon which the prosecution relied in her regard are principally the sending of bank drafts in false names to various English accounts; the opening of the Catherine Lam account at the instance of the accomplice Ng; and occasionally consorting with bookmakers in the company of her husband. Taken in conjunction with admissions which she made when interrogated by officers of the I.C.A.C., this would certainly seem to make her a party to the alleged agreement during its currency and we cannot accept the suggestion that all she did was to help in the disposal of funds after the agreement had been completed. 49. None of the grounds thus far considered is of sufficient substance to warrant interference by this court. 50. We turn now to the first and most serious of the grounds of appeal. This is that the reasons for verdict given by the judge are simply inadequate and that the convictions are on that score unsustainable. 51. It is one of the most remarkable features of this extremely thorough investigation, and of the equally thorough and painstaking prosecution of the charges which followed upon it, that by the close of the evidence the prosecutor was able to put in the hands of the court a document some 70 pages long which consists of 16 separate schedules alphabetically tabulated A to P. These cover such matters as the CHAN Tai-wai account (Schedule I) and the various money movements within it; a lengthy schedule (F) setting out what the Crown relied upon as supportive of the charges as distinct from corroborative in the strict sense; a schedule (E) setting out all the charges seriatim and listing the witnesses and documents etc relevant thereto with brief comments as to the nature of the evidence thus indicated. Then there are schedules (J, K, L) which purport to show in brief and succinct summary the evidence relating to the increase in the assets of the various applicants over the relevant period and the totals of the legitimate incomes during that time. 52. There is no doubt that these schedules would have been of the very greatest assistance to any judge charged with the duty of analysing this very large body of material in identifying the documentary, oral, and other evidence relevant to the proof of each particular charge against each particular defendant. Unfortunately that is not the way the judge used them. Instead, he seems to have incorporated these appendices as part of his judgment. Having said that he had no intetnion of referring to individual pieces of prosecution evidence in view of the number of witnesses called, he went on to say (page 5 of the reasons for decision):
He then went on to categorise the various kinds of evidence adduced by the prosecution but without descending into the particulars thereof as he found it to have affected each defendant and each charge. 53. This was not, with respect, an appropriate way of dealing with evidence of this volume and kind. The more so when the number and nature of the charges required attention to such important legal matters as the question of corroboration and the extent to which the statutory provisions could be invoked in relation thereto. If, following Mr. Duffy's present line, the judge had decided not to use Section 21 at all, it would then have been necessary to consider with some particularity what evidence there was to corroboratc the accomplices in relation to the conspiracy as distinct from the evidence relating to the othercharges. 54. The difficulty raised by this manner of coming to judgment is that although we know that the judge did accept the accomplice evidence which was the bedrock of the Crown's case, we simply do not know what evidence, contained in the schedules; the judge was proposing to rely upon as corroborative of that evidence, nor even what particular schedules he had found especially useful for this purpose. 55. On the hearing of the appeal Counsel have not been greatly at odds as to what duty is required of a District Judge in recording his reasons under Section 80 of the District Court Ordinance. Although Mr. Duffy was inclined to demur, we think that the words of O'Connor, J in Lam Kam Ming(1) are especially apposite in the circumstances of the present case, while fully in accord with the growing body of case law on this topic.
Where findings of fact are so inadequate that it is not. Possible to determine precisely what the factual basis was for the decision an appellate court must, of course, not take upon itself the task of the trial judge and resort of its own motion to an examination of the evidence to see if the convictions are sustainable. 56. The question is one of degree. Mr. Scrivener does not suggest that the Court of Appeal may not resort to the transcript in order to ascertain whether., though inadequately stated, a judge's reasons for verdict are nevertheless sustainable by reference to some readily identifiable body of evidence which is in itself adequate to sustain them. As he puts it the reasons may be "patched", but if they have to be assembled from the ground up the convictions cannot be regarded as safe or satisfactory. With that we must agree. 57. Here however we have the judge's primary, finding that the accomplice witnesses are believeable. He also found that there was "very substantial corroboration". The list which follows- which we may presume includes everything which he regarded as affording corroboration harks back to the Crown's appendices, and does not distinguish between what the Crown itself regarded as strictly corroborative and what was relied on as being merely generally probative or supportive of the charges. 58. Among the matters mentioned, however, area "the very substantial amounts paid into the various bank accounts of the first four accused and that of the wife of the third accused and the substantial amounts sent abroad by or on behalf of the first, second and fourth accused, using either false names and addresses or real names and addresses but without permission of the person named or the occupier of the address concerned." That is clearly a reference to the unexplained accretions of wealth which is touched upon in several of the schedules. Had the judge relied upon Section 21 that evidence would undoubtedly have constituted corroboration sufficient for the Crown's purpose in the manner already explained. It is particularly powerful corroboration in a case such as this where the applicants have given no evidence so that these resources remain to the present moment unexplained. Provided that evidence is secure it is certainly sufficient to support the reasons for verdict, and the findings as they stand may be regarded as sufficient to enable this court to "do its duty". 59. But it was precisely here that the final difficulty was raised on the fourth day of the hearing of the appeal. 60. In relation to Schedule "I" Mr. Scrivener was able to point out a number of entries which do not seem to be well supported in the evidence itself. It was for that reason that we adjourned on the fifth day of the hearing to enable counsel on both sides to examine the relevant schedules in relation to the: evidence which they are supposed to reflect so that we might be in a position to determine whether or not the judge's findings were to any material extent impaired by this want of correspondence between the summaries in the schedules and the whole body of the relevant evidence. 61. We have considered the points made by Mr. Scrivener in relation to Schedule I. In every case the point being made concerned the fact that the note of evidence appearing in the Schedule indicates a date, or apparent date, of payment of a given sum by one of the accomplices which is either not supported by the actual evidence of the witness concerned or else is a matter of inference only therefrom. 62. In all of these instances the point being made is that for such payments to be corroborative of the accomplice evidence it was necessary to show that the CHAN Tai-wai bank account was enriched by an amount of the same, or approximately the same, size immediately, or very shortly after, the alleged payment. 63. That might be so if the matter rested wholly upon common law principles. But, as has been said, the accretion of wealth evidence, as it touches the case of each of the applicants, over the whole period of the charges, is available for that purpose under the provisions of s. 21 of the Ordinance and we do not think therefore that there is substance in any of those objections. 64. On the resumed hearing Mr. Hingorani for the 1st and 2nd applicants (Yip and Kwan) directed our attention to the revised Schedule E which was prepared for the convenience of this court and in which each individual charge is dealt with separately accompanied by a brief note of the evidence said to support that charge against each defendant. In each case there is an itemized list of the particular pieces of the Crown alleges tends towards the proof of guilt; a cross-reference to other schedules where the matter is dealt with; a list of the names of the relevant witnesses and a note of, the exact pages in the transcript where the relevant evidence of the particular witness appears. 65. Mr. Hingorani's principal objection (as it appears in the written comment supplied by him before the resumed hearing) was that the inaccuracies and inferential reasoning attributed by Mr. Scrivener to some of the entries in Schedule I made this unsafe for the judge to rely upon it in its entirety and he says, the present Schedule E - the schedule devoted to a compendious analysis of all the charges does nothing to correct the deficiencies which counsel have perceived in Schedule I. That objection must fail for the reasons given already in relation to Mr. Scrivener's argument. 66. What this court is concerned to determine is whether or not the evidence to which these schedules refer by specific transcript page numbers: (a) does show what it is said to show in the schedules and (b) is such as to support the judge's finding on the several charges so that this court can feel sure that in adopting this shorthand method of evaluating the evidence he was basing himself on material which clearly and unmistakably pointed to the guilt of each defendant. 67. In relation to the conspiracy (count l) Mr. Hingorani contended that it was necessary for the judge to consider all the accomplice evidence before he could find that there had been "an on going corrupt association with illegal book-makers" (the words used in the Schedule) which included his clients (or indeed any of the defendants) as alleged by the Crown in the first item of the third column of Schedule E in relation to the 1st, 2nd and 4th applicants and in the second item of that column in relation to the 3rd applicant. 68. Undoubtedly that is so. But since the judge expressly enlisted the aid of this, together with that afforded by the other schedules, and since Schedule E indicates the evidence on which the Crown was relying in respect of every item put forward by counsel as conducing to the proof of guilt we can only assume that the judge who had all the evidence before him - was, by referring to the schedules, adopting precisely the evidence which is therein pinpointed as that on which he relied in making his findings. 69. Apart from his adoption of these strictures levelled by Mr. Scrivener against some of the items in Schedule I Mr. Hingorani did not contend that the actual incidents detailed in the third column of Schedule E were not supported by testimony from the witnesses indicated in the fifth and sixth columns. He did not of course concede that this amounted to proof beyond reasonable doubt of the charges against his clients. 70. The only specific charges in relation to which counsel sought, by analysis of the evidence indicated in Schedule E, to show that the finding of guilt against the 2nd defendant was not supportable were the 2nd and 3rd charges relating to the alleged solicitation of $40,000 by the 1st, 2nd and 3rd applicants from LAM Kin-yiu for their assistance in trying to obtain for him membership of the club (count 2) and their acceptance thereof (count 3). 71. Nine incidents are itemized on pp. 7 and 8 of Schedule E. Counsel maintains that at most this amounts to the presence of Yip under suspicious circumstances with the other two applicants and some of the illegal book-makers on several occasions of a social nature. The final occasion was a meeting on 31st December 1982 at the Cat Street Restaurant in the Hilton Hotel. This was attended by the 1st, 2nd and 3rd applicants. The evidence concerning it is that of the accomplice LAM Kin-yiu and it is clear, from his evidence that the purpose of the meeting was to complain about the fact that, having paid his money, he had not received the expected membership card. According to Lam the 1st applicant (Handforth) simply said "Let them" (indicating Yip and Kwan) "explain it to you." That evidence, read as the culminating episode in a sequence of events including, according to the same witness, his own ejectment by the 1st applicant, from the race-course as an illegal book-maker in 1980; the payment of $40,000 by him to the 3rd applicant (Kwan) though not in the actual presence of the 1st and 2nd applicants on a launch, trip in October 1982 when all three applicants were together with Lam; and the earlier episode of socializing between these four persons on 7th October 1982 at the Okahan Restaurant was sufficient evidence - none of it contested - to bring this charge home against the 2nd applicant. The same body of evidence obviously bears more strongly still against the 1st and 3rd applicants of these charges and Mr. Hingorani did not seek to contend that there was not evidence which he believed directly implicated the 3rd applicant. 72. The 1st applicant (Handforth) who was unrepresented at the resumed hearing subjected the evidence relied upon by the Crown as noted in Schedule E and cross referenced to some of the other schedules - in particular Schedules I and H - to a careful scrutiny and analysis in an endeavour to persuade us that some at least of the evidence on which the judge must have relied was unreliable in itself and that, as a whole, this evidence was insufficient to connect him with the various charges. 73. Mr. Harris with the exemplary fairness which characterized his prosecution of the respondents case throughout the hearing conceded that the applicant had, as he put it, made a number of points which he would concede to be fair points though he did not of course concede that they were of sufficient substance to vitiate the convictions. 74. The following may fairly be said to be amongst the most telling of those points. (1) NG Wai-chung, the principal prosecution witness against the 1st and 3rd applicants on counts 15 to 19 was confronted by evidence from the defence which, if accepted, plainly showed that Ng was not telling the truth about a certain occasion, which he alleged to have been one of many such occasions, when one or more of the applicants were entertained at a restaurant at his expense. Although Ng insisted that his memory of this particular occasion was very clear a hospital certificate was produced to show that the 1st applicant had been in hospital over a period which included the date alleged by Ng to have been the date of this particular occasion. 75. This is however one of the specific points in the evidence to which the judge referred, and he accepted that the witness was mistaken while still being satisfied that his evidence was in the main reliable. (2) There were some discrepancies between accomplice witnesses as to how much money was paid by whom and on what occasions to the third applicant. In view of the enormous quantity of the evidence, the number and variety of witnesses called; and the likelihood that any witnesses giving evidence about events occurring a considerable time prior to the trial would be likely to err in detail on such matters we cannot regard. any of these objections as being serious in nature. (3) Item (v') of page 2 of Schedule E alleges a connection between the applicant and the CHAN Tai-wai account as one of the indications of his part in the conspiracy The related item in Schedule B however shows only that on the date in question a bankers draft for £4,000 was purchased with cash by a person called David CHAN Tai-wai. The draft was made payable to the 1st applicant account with the Lombard Bank in London. The 1st applicant does not contend that he never received this draft and says that this only goes to show that he may have had some connection with the person called David CHAN Tai-wai and that the draft has not been shown to have been drawn from this major repository for the harbouring of funds received by the third applicant. 76. Mr. harris pointed to the fact that $20,000 had been drawn from the account on the same day. We would, however hesitate to say that that is proof positive of the use of funds from that account for the purchase of this draft. It remains true, of course, that the draft was purchased by someone using the name which had been adopted by the third applicant in opening this bogus account and the reason for this transaction has never been explained. 77. In this connection also we note that there was undisputed evidence that when the first three applicants were arrested, in each others company, emerging from Lockhart House in the evening of the 16th of March 1983 they were found to be in possession of cash totalling about $125,000, the third applicant having withdrawn $120,000 from the CHAN TAi-wai account a few hours earlier on that day. Out of the funds seized from the three applicants $45,000 was found in the first aplicant's possession. (4) Item (vi) of Schedule E and item (iv) of Schedule H purport to point to evidence of allegedly improper conduct on the part of the applicant when on the 23rd of February 1983, five illegal bookmakers were arrested by the police and brought to the Security Office. Two of these are shown to have been released for reasons which were regarded as legitimate. Two others are noted as having been ejected by the applicant as also Bias the third for whom no documentation exists. There was evidence to show that about ten minutes after the alleged ejectment these three people were seen again within the precincts of the course. The first applicant points to the evidence of a Superintendent Hussain who said that it is possible for any person so ejected to go to the gate and get tickets and so re-enter the course. In view of the very short period which elapsed between the alleged ejectment and the sighting of these persons there does not seem to be a very lively possibility that anything of the kind can have happened and it cannot be said than this contention is a very formidable reply to the Crown's allegation that there was effectively and notwithstanding the written record - no proper ejectment of anybody at all. (5) In relation to the fourth count, Item (111) of Schedule E alleges that the evidence of the accomplice Hsia implicates the first applicant as well as the third applicant in the negotiations for the supply of a set of horse-owners badges for the 1981 to 1982 season. In fact that evidence refers only to the third applicant, if one sets aside, as I think we must, a double hearsay remark by a different witness in answer to a question to which objection was not, but clearly ought to have been, taken. This same witness (LAM Tai-kuen) did however implicate the first applicant in the supply of badges for the 82 to 83 season for which money was, according to the witness, paid to the third applicant. This is the subject matter of the fifth count. This evidence was attacked by Mr. Scrivener in dealing with this account on the ground that it was hearsay. The applicant himself enlists the same argument. 78. The Crown's stance on that count as also in relation to all the other substantive counts, except for the final count, in which the first applicant stands charged alone, is that the evidence generally shows a joint enterprise over a prolonged period. Lam's evidence to which objection has been taken, was to the effect that when he was asking the third applicant about the possibility of procuring badges for the 82 to 83 season the third applicant said that he must "discuss it with Handforth". This evidence must be taken. in the context of the evidence as a whole on that charge. This includes Hsia's evidence, which was undisputed, and which includes the following points: (a) that he - Hsia - had been ejected on the 15th of March 1980 from the race course by the first applicant himself; (b) towards the end of 1981 Hsia had treated Mr. and Mrs. Handforth and Mr. Handforth's mother to a meal at the Furama Japanese Restaurant; (c) in October or November 1981 there was an occasion when they met at the Dragon Boat Bar at the Hilton. In the course of conversation on this occasion the 1st applicant told the witness that he trusted Kwan fully adding - perhaps more significantly - that he trusted him more than he trusted Yip (the second applicant) and that if the witness had "any problems" the one to contact was Kwan. 79. We are satisfied that even if scrutiny be restricted to the evidence actually relied on by the Crown as indicated in Schedule E in relation to count 4 and 5, both of which relate to the issue of badges in the 1982 to 83 season, the comment by the third applicant as reported by Lam wasp admissible and probative against the first applicant. 80. These objections, some of which related, to conspiracy and some to the substantive charges - we consider to be the principal objections made by the first applicant. He made a number of other objections which, are of less substance and which, we think, do not require discussion. The Conspiracy Charge 81. We were satisfied that there was a wealth of evidence upon which the judge must necessarily have relied, and upon which he was justified in coming to the conclusion that all the applicants were guilty of conspiracy. That evidence reveals an extraordinary picture in the case of the first applicant. Here is a man, the deputy to the head of the Club's security section, who, throughout the charge period, has repeatedly consorted with illegal bookmakers often in the company of his two immediate subordinates (the second and third applicants). All of these illegal bookmakers including the six whom the first applicant himself admits having consorted with on social occasions, testify to corrupt payments made to the third applicant (Kwan). Two, at least of these, Hsia Tse- ming and LAM Tai-kuen, are persons whom the applicant himself has initially ejected from the course. On every such subsequent social occasion, food and drink are paid for by these questionable hosts and occasionally other entertainment is Provided as well. 82. In July of 1981 Handforth and Kwan travelled to Korea on what seems to have been a pleasure trip at the expense of NG Wai-chung and in April 1982 Handforth takes his entire family on a holiday trip to Taiwan, again at the expense of Ng whose denial of having been repaid upon either occasion stands uncontradicted. 83. There is some evidence to suggest the connection between the first applicant and funds drawn from an account maintained throughout the whole period of the third applicant Kwan, his close associate in security, into which large sums of money are regularly paid by Kwan who, on the evidence of the bookmakers, is regualrly receiving large sums by way of payment for protection of their trade. Mrs. Handforth (the fourth applicant) opens an account in the name of Catherine Lam at the instigation of and on the introduction of one of the accomplice bookmakers NG Wai-chung, in the same branch of. The same bank in which - similarly prompted and introduced -the third applicant (Kwan) opened an account in the name of CHAN Tai- wai. This Catherine Lam account is the repository of considerable sums paid in by Mrs. Handforth, the course of which has never been explained. By virtue of the provisions of Section 21 sub-section 2 of the Ordinance this constitutes evidence against her husband. 84. Throughout the period the combined assets of the Handforths are found to increase by something in the region of $1,000,000 over and above their combined and disclosed legimate sources of income. None of this is explained either before the trial or in the course of it. 85. Very similar evidence supports the Crown's case against the second and third applicants with, in addition a wealth of direct evidence against the third applicant relating to payments to him by the bookmakers. In the case of the second applicant there is evidence of at least one occasion when he was paid directly by the accomplice Hsia. 86. As regards Mrs. Handforth there is in addition, her admission to the investigating officers of the Independent Commission that she believed that much of the large amounts of money she received from her husband, and which she used for the purpose of buying bank drafts in false names, had come from payments made to him by bookmakers. 87. We were greatly indebted to counsel for the Crown for the assistance afforded to this Court by the preparation during the adjournment of the various schedules in greatly enlarged and more readable form. The revised schedules E and B are not in the same form in which they were tendered to the trial judge. The original schedule B itemized all the points of evidence which the Crown alleged were relevant to the proof of the conspiracy charge against all the applicants. The revised schedule B differs only in that the names of accomplices are set out with relevant transcript page numbers relating to the evidence. 88. The same information is contained in revised Schedule E which originally only related to the substantive charges. It now covers all the charges and includes numbered references to items of evidence on which the Crown relied with cross-references to entries in other schedules which were before the trial judge. Although these itemized references did not appear on the original Schedule E, all the witnesses to whose evidence reference is made in the revised schedule appear also in the original schedules and are related to these specific charges in the same way as they are in the revised schedule. 89. We can be satisfied therefore that the judge, who heard all of this evidence and who - we are advised - took a very full note of it, in enlisting the aid of the schedules put before him at the conclusion of the hearing had in mind, and no doubt must have consulted, the selfsame body of evidence which we perforce have had to consult in dealing with this final submission by counsel on the appeal. 90. We have consulted the evidence thus indicated in relation to all of these substantive charges. Prior to the resumed hearing counsel for the second and third applicants and the first applicant himself were able to consult and consider the evidence indicated in the new schedules and indeed in all the schedules. 91. It may be said that there is substantial agreement that - apart from the point made by Mr. Scrivener (dealt with earlier in this judgment) - the nature of the evidence is as stated in the third column of the revised schedule E. The effect of it is disputed. The evidence in support of the conviction of the frist, second and third applicants on the second and third charges - relating to the unsuccessful, application for membership by LAM Kin-yu has already been noted. In the view of this court it is wholly sufficient to justify the conviction of all three. 92. Counts 4 and 5 which relate to the supply of horse-owners badges to HSIA Tse-ming and LAM Tai-kuen concern only the first and third applicants. There is Hsia's direct evidence concerning the payment of $50,000 to the third applicant, $10,000 of which was for the badge. As against The first applicant there is Hsia's statement that the third applicant said he must discuss the matter with Handforth and there is a conversation between Hsia and Handforth in the course of which handforth said that that he trusted Kwan. Handforth does not dispute that he did give this particular badge to Hsia in the Hilton Hotel on the 15th of September 1982. 93. LAM Tai-kuen gives direct evidence against the third applicant and Lam's "runner" SHUM Cham-chi testified to having paid $33,000 to the third applicant in September 1982. $3,000 of this was on their evidence for the supply to Lam of a carpark label which is the subject matter of the sixth charge. 94. On the sixth count the evidence against the first applicant consists of the fact that it was he who ejected LAM Tai-kuen from the course on the 11th of October 1982 and the evidence establishing that the particular horse-owners badge referred to in the fifth count (badge no 0917) had been issued to security and specifically to the first applicant. This badge was eventually recovered from LAM Tai-kuen. 95. There was no evidence directly to connect the first applicant with the carpark label but in September 1982 ten such labels were issued to security and six of these were signed for by the applicant. It is of course possible that this label was not one of the six confided to the care of the applicant - a point which he makes -but as Mr. Harris points out the applicant was second-in-command in the security department and one might have expected that the care of all such valuable documents and their disposition would have been carefully monitored by him. 96. The seventh, eighth and ninth charges which relate to the theft of these documents rest upon the selfsame evidence. 97. The contention of joint enterprise similarly underlies the Crown's case against the first and third applicants on charges 15, 16 and 17. Here the direct evidence against the third applicant is that of NG Wai-chung, the illegal bookmaker who made a successful application for membership of the Club. 98. Ng's evidence was that in June 1981 there as a meeting at the third applicant's home at which the first, the third and the fourth applicants were together with himself. It was on this occasion that the third applicant offered to arrange membership in return for payment of $100,000 with a downpayment of $40,000 adding the detail that the money was needed because "his friend had a certain property in Spain and he was in need of money". Other evidence established that the Handforths had invested in property in Spain. The first applicant emphasized the fact that Ng did not allege that this conversation had taken place in his presence; his evidence was that it had taken place in a different room of the same apartment. On the day following this meeting, $40,000 was paid by Ng to the third applicant. 99. It was after that, between the 9th and the 12th of July 1981, that the first and the third applicants enjoyed the holiday to Korea with air tickets and expenses paid by Ng. 100. On the 16th of July Ng was introduced to the seconder of his application for membership, and according to him on this occasion the first and third applicant were present. On the following day he was introduced to his proposer in the presence of the first, third and fourth (Mrs. Handforth). 101. The seconder, a Mr. Sadiq, was the only witness called for the defence. He denied that the first applicant was present on the 16th. He sent on to say, however, that it was the first applicant who had arranged this meeting on the 16th. Sofaras the meeting the following day is concerned there was evidence that Mrs. Handforth, who was working for the Red Cross, had been at work until 12:30 that day. The time of the meeting which took place in the Mandarin Hotel does not, however, seem to have been established. 102. Among the documents seized by the investigating officers are two receipts dated June 81 from the third applicant. This purports to show payment of $40,000 from the third applicant to the first applicant in respect of the Spanish property. 103. The 16th and 17th charges rest upon the same evidence being respectively the counts concerned with the $60,000 and the $40,000 referred to in the 15th charge, which is the soliciting charge. 104. The evidence against the first and third applicants on the 18th charge is once again primarily that of NG Wai-chung. That was to the effect that Ng had requested the third applicant to supply with a Jockey Club carp ark label in September 1981 and that this was received by Ng from the third applicant after the first race meeting of the 1981 to 1982 season. On the following day Ng purchased a Rolex watch for $4,100 which he gave to the third applicant with the injunction to give it to his "boss" in lieu of money and in payment for the carpark label. It is not disputed that this watch was eventually found in the first applicant's possession. 105. This excursion through the evidence indicated in the schedules will, it is to be hoped, make it clear that in relying upon the schedules the judge, whether or not he adverted to every such item of evidence indicated therein, and whether or not he may have overlooked some of the evidence or any of the minor inaccuracies or discrepancies, or alleged inadequacies, referred to by counsel upon the appeal, had available to him an overwhelming bulk of material upon which he could safely rely in convicting the applicants upon all the charges. The Sentences 106. The first, second and third applicants also sought leave to appeal against their sentences, the total in each case being four years. Having considered the several cases put before us by Mr. Hingorani and the submissions of counsel and Handforth generally in relation to the circumstances of the offences we were satisfied that four years was an appropriate total in the case of all three applicants. 107. In addition to the prison sentences the trial judge had made orders of forfeiture against the first, second and third applicants in each case choosing as his figure the figure shown as the net accretion of assets over and above legitimate earnings over the charge period .as set forth respectively in schedules J, K and L. 108. One of the arguments advanced by Mr. Hingorani, however, touched upon a point of principle which upon consideration moved the court to conclude that these orders must be set aside. Counsel rightly pointed out that Section 21 of Cap. 201 does not provide the court with any power to order forfeiture of pecuniary resources etc. which have not been satisfactorily accounted for. That is plainly so. The District Judge, however, was not purporting to act under that section but under Section 12A(1) which is as follows:
That section must, however, be read in conjunction with the provisions of Section 12. For present purposes the relevant part of that section it sub-section (1) and that reads as follows:
All the substantive charges in this case were taken under Section 4(2)(a) of the Ordinance. The conspiracy is likewise charged as a conspiracy contrary to common law and Section 4(2)(a). Even under the conspiracy charge, therefore, the applicants can only be punished in such manner as they may be punished for offences under that Section. Had there been charges against the applicants under Section 10 (1)(b) and had the conspiracy been charged as one to effect a breach of the provisions of that section these would have been orders which, legally speaking, would have been competent. It would then have been for the court to consider, in view of the various arguments relating to possible deductions from the estimated total of $3.9 million unexplained resources, whether they were also appropriate orders. 109. We are not prepared to read the words in sub-section (1) of Section 12: "the amount or value of an received by him" as meaning something like "the amount or value of any unexplained accretion of assets in his possession" which was the construction contended for by Mr. Harris. 110. Reading these provisions as we do it is clear that these were not competent orders and for that reason they wereset aside. 111. The "advantages" received by the applicants in the present case are simply those stated in the substantive charges and proved in the evidence. By the provisions of Section 12(1) the court is obliged to order that the whole or part of that sum be returned to the Jockey Club. The total amount of those advantages was $203,000.00. The sum involved in the second and third charges which concerned all three applicants was only $60,000. That, we thought, should be evenly divided between the three obliging each to pay $20,000. Unfortunately when the order was made at the conclusion of the trial there was a fault in the arithmetic of the court in relation to the total of the advantages on the remaining charges. These come, in round figures, not to $240,000 as was then said but to $143,000. Originally we had provided that the first and third applicants were each to pay $120,000 plus the $20,000 relating to the second and third charges making a total of $140,000 for each of those two applicants. The fault being purely one of arithmetic must be rectified. For that order there will be substituted an order that the first and third applicants will pay to the Jockey Club a sum of $91,500 each. (1) Cr. App. 607/79 Representation: Mr. A. Scrivener, Q.C. with Mr. J. Hingorani for Dl to D4. D5 not appearing an not being represented. Mr. J. M. Duffy, Q.C. Crown Prosecutor, with Mr. G. Harris, Crown Counsel for the Crown. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||