The Queen v. Li Wai Man and Another

CACC000404/1987

IN THE COURT OF APPEAL

1987, No. 404

(Criminal)

BETWEEN

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Coram: Hon. Silke, V.-P., Barker & Kempster, JJ.A.

Date of Hearing: 6th January 1988

Date of Judgment: 6th January 1988

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J U D G M E N T

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Silke, V-P:

1. Li Wai Man, a bank officer, was charged with three counts of accepting an advantage as an agent. The first count related to 2nd October 1984 and the sum involved was $142,950; the second related to 9th October 1984 and the sum involved was $287,022 and the third related to 22nd October 1984 and the sum was $633,646. These were all said to have been paid by Chin Chong, a business man who was the 2nd accused at trial.

2. The particulars in each of the counts were the same: that Li was improperly paid for doing an act in relation to his principal's business, the principal being the Bank of America, namely facilitating the acceptance of U.S. Treasury cheques and withdrawal of funds being the equivalent of those cheques as credited to the accounts of Achates International Products and Siu Wah Trading Company.

3. Chin Chong was also charged with three mirror counts in relation to the same transaction. He was the offerer of the advantage.

4. They were convicted after trial before Garcia J and each was sentenced to a period of 31 year's imprisonment on each of the counts concurrent. They now seek leave to appeal against both their convictions and their sentences.

5. It is not contested that, given a fair and properly conducted trial, there was sufficient evidence to found the convictions. No complaint is made of the summing up which was of itself a model of clarity and was fair. No complaints are made of any improper judicial intervention in the course of the trial.

6. The only complaint is as to questions asked by the judge of Li after his cross-examination had been completed and after there had been an indication by Mr Alderdice, who appeared for him both at trial and today, that no re-examination was thought necessary.

7. In all, 33 questions were asked. They seemed, on their face, unnecessary but we do not know what, in the light of the summing up to come, the trial judge thought in his own mind needed clarification.

8. We think the test to be: did the quality or quantity of the questions either render the verdicts unsafe or unsatisfactory or deprive the Applicants of a fair trial. It is suggested that the line of questions indicated to the jury the trial judge's adverse view of the nature of the evidence given by Li Counsel for Chin says that, as the two matters were so intertwined, then if we do take the view urged upon us by Mr Alderdice, his client should also have the benefit.

9. We do not think that either the quality or the quantum of the questions gives rise to the strictures placed upon them by Fir. Alderdice even taking into account his reliance on the intervention, after twenty five questions, by counsel for the Crown.

10. We have considered the arguments advanced to us in relation to the particularity of certain of these questions and the evident apprehension shown by counsel for the Crown but we do not think that the conduct of the trial judge was unfair, indicated his views or that the convictions are unsafe or unsatisfactory. In these circumstances, the applications for leave to appeal against conviction are dismissed.

Sentence

11. Sentences of 3½ years concurrent on each of the three counts which related separately to the two Applicants were imposed after trial. On each of those charges under the Prevention of Bribery Ordinance, the maximum period is 7 years. The trial judge accepted that the offences, although on separate dates, were so interlinked as to permit him to accede to a submission that the sentences should be concurrent. It is correct that the Applicants have not been charged directly with commercial fraud in the sense that the counts are brought under the Prevention of Bribery Ordinance. The background, however, was clearly fraudulent. We note that a good deal of the US$3 million obtained has been returned to the Bank but it is left with a net loss of US$1.2 million.

12. The quantum of these sentences did not induce us to make any radical departure from the periods imposed. We do not think, in the light of the background of these offences and the personal backgrounds of the Applicants upon which we have been addressed, that these sentences are manifestly excessive,

13. Had any of us been the trial judge it might well be that we would have differenciated as between Li, who was in clear breach of trust, and Ching but we do not intend to interfere with the exercise by trial judge of his discretion. The applications for leave to appeal against, sentence are refused.

Representation:

Gary Alderdice, Esq. (D.L.A.) for D1/1st Applicant

Alexander King, Esq. (D.L.A.) for D2/2nd Applicant

Christopher Harris, Esq. for Crown/Respondent