HKSAR v. Ng Swee Thiam and Others

CACC000475/1998

CACC 475/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 475 OF 1998

(ON APPEAL FROM HCCC 107 & 245 OF 1997)

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Coram: Hon. Stuart-Moore, V.-P., Mayo & Wong, JJ.A.

Date of Hearing: 18 November 1999

Date of Handing Down Judgment: 21 December 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

Introduction

1. On 9 September 1998, the 2nd Applicant (D2) was convicted of four charges relating to conspiracy to commit forgery and the possession of false instruments, following a trial before Deputy Judge Jackson (as he then was) and a jury. Before the trial commenced, the 1st and 3rd Applicants (D1 and D3) pleaded guilty to a number of related offences on the same indictment. Their pleas of not guilty to the conspiracy charges were accepted. No evidence was offered against them on these counts and formal verdicts of not guilty were recorded. D1, D2 and D3 were sentenced on 10 September 1998 to terms of 10 years, 12 years and 6 1/2 years' imprisonment respectively. D2 now seeks leave to appeal against conviction and sentence and D1 and D3 apply for leave to appeal against sentence only.

2. The four charges on which D2 was convicted were as follows:

First Count

STATEMENT OF OFFENCE

Conspiracy to commit forgery, contrary to Sections 71 and 159A of the Crimes Ordinance, Cap. 200.

PARTICULARS OF OFFENCE

Yau Man-yiu, between the 1st day of September 1996 and the 8th day of October 1996, in Hong Kong, conspired together with Ng Swee-thiam and Ng Lea-seng and with a person or persons unknown, to make a false instrument or false instruments, namely false credit cards, with the intention that they or another should use that false instrument or those false instruments to induce somebody to accept them or any of them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person's prejudice.

Third Count

STATEMENT OF OFFENCE

Possession of false instruments, contrary to Section 75(1) of the Crimes Ordinance, Cap. 200.

PARTICULARS OF OFFENCE

Yau Man-yiu, on the 8th day of October 1996, in Hong Kong, together with Ng Swee-thiam and Ng Lea-seng, had in their custody or under their control instruments which were, and which they knew or believed to be false, namely 18 cards purporting to be credit cards issued by various financial institutions, with the intention that they or another should use them or any of them to induce somebody to accept them as genuine, and by reason of so accepting them or any of them to do or not to do some act to his own or any other person's prejudice.

Fourth Count

STATEMENT OF OFFENCE

Conspiracy to commit forgery, contrary to Sections 71 and 159A of the Crimes Ordinance, Cap. 200.

PARTICULARS OF OFFENCE

Yau Man-yiu, between the 1st day of October 1996 and the 11th day of December 1996, in Hong Kong, conspired together with Ng Swee-thiam and with a person or persons unknown, to make a false instrument or false instruments, namely false credit cards, with the intention that they or another should use that false instrument or those false instruments to induce somebody to accept them or any of them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person's prejudice.

Sixth Count

STATEMENT OF OFFENCE

Possession of false instruments, contrary to Section 75(1) of the Crimes Ordinance, Cap. 200

PARTICULARS OF OFFENCE

Yau Man-yiu, on the 11th day of December 1996, in Hong Kong, together with Ng Swee-thiam, had in their custody or under their control instruments which were, and which they knew or believed to be false, namely 30 cards purporting to be credit cards issued by various financial institutions, with the intention that they or another should use them or any of them to induce somebody to accept them as genuine, and by reason of so accepting them or any of them to do or not to do some act to his own or any other person's prejudice.

3. Counts 2 and 5 were alternatives to counts 1 and 4 respectively, and the jury were not therefore required to return verdicts on those counts in the light of the convictions on counts 1 and 4. The alternative counts both alleged possessing equipment for making false instruments, contrary to section 76(1) of the Crimes Ordinance, Cap. 200.

4. During the trial, for reasons of clarity and simplicity, the offences alleged in counts 1 and 4 were referred to, by reference to their location, as the "Tsuen Wan" conspiracy and the "Tuen Mun" conspiracy respectively. The general allegation was that there existed at each location a "factory" for the production of counterfeit credit cards. D2's involvement was alleged to have been with both factories. D1 was also involved with both, but he pleaded guilty to substantive charges arising out of each operation. D3's involvement, on the other hand, was confined to the factory at Tsuen Wan only and his pleas of guilty were to substantive offences in that regard.

The Tsuen Wan Factory

5. On 8 October 1996, officers attached to the Commercial Crime Bureau (CCB) raided a flat in the Tsuen Fung Centre, Tsuen Wan, during the course of the afternoon and intercepted D3 as he left the premises. The flat was intended for domestic use. However, the machinery found inside quickly showed that these premises were not being used for normal residential occupation. Amongst the items found there, which were closely associated with the manufacture of counterfeit credit cards, were:

1. an embossing machine (used to emboss credit card account details onto blank credit cards);

2. a tipping machine (used to cover the embossed account details in tin foil to correspond with the laminated colour of the credit card);

3. several rolls of gold and silver tin foil;

4. 44 base credit cards which had not been embossed or encoded;

5. 18 forged credit cards embossed and/or encoded with credit card account information;

6. papers bearing credit card account numbers;

7. an encoding machine (used to encode account information onto false credit cards);

8. a Point of Sale Terminal [POS] (an electronic device used to expedite the processing of an authorisation request by payees or merchants receiving payment by credit card who, after 'swiping' the card through the POS, enter the transaction amount and press a number on the POS which corresponds with the telephone number of the credit card centre);

9. a notebook computer (containing in excess of 34,000 credit card account numbers of various credit card companies);

10. a cloned mobile telephone (linked to the POS through a cellular/data link machine).

6. In addition, there were a large number of miscellaneous items, all of which had obvious connections to a factory of the kind which was alleged.

7. Taken together, the equipment was capable of enabling bogus credit card transactions to be carried out with the particular assistance of the POS which made it possible for those responsible for the factory to obtain approval codes from the credit card centre for the false credit cards which had been manufactured. The cards could then be used to purchase goods as if they were genuinely held credit cards. Numerous items in the Tsuen Wan flat bore the fingerprints of D3 who had been intercepted by CCB as he came out from the premises. Clothing and personal effects which belonged to him were found inside the flat and D3 was in possession of keys to the premises.

The Tuen Mun Factory

8. On 11 December 1996, D1 and D2 were arrested following a CCB raid on residential premises in Tuen Mun. D2 lived at these premises with his wife and two children. D1 also lived there and occupied a room referred to as "room 2". A large number of false credit cards together with items of equipment suitable for making them were found on the premises, most of which were discovered inside room 2. It suffices to say that the equipment and the system/technology located in the Tuen Mun factory was for practical purposes identical to that which had been found at the Tsuen Wan factory.

9. In particular, the computer software programme installed in the notebook computer at both locations for the purposes of encoding and decoding credit card information on false cards, was identical. Of the 39,951 credit card numbers found in the computer programme at Tuen Mun, 34,699 were identical to those found in the programme at Tsuen Wan where a total of 34,727 account numbers were stored. There were a total of 4 POS's located at Tuen Mun, three of which were programmed with credit card centre (authorisation) telephone numbers and bank merchant numbers. Some of the merchant numbers were common to both factories.

Prosecution case against D2

10. It was the prosecution's case that the two factories producing counterfeit credit cards were the responsibility of a single gang and that this was a highly sophisticated operation. The closure of the Tsuen Wan factory and the arrest of D3 had no impact on the criminal activities of those who remained in the gang. Despite the shutting down of the all-important and unauthorised POS terminal in Tsuen Wan, authorisation requests continued to be received in respect of the same merchant identification numbers that had been programmed into the POS terminal at Tsuen Wan. This indicated that another bogus terminal, which had been programmed with the same numbers, was being used at another location. As it turned out, this location was D2's home address in Tuen Mun. He was arrested there, with D1, on the day of the raid, approximately two months after the closing of the Tsuen Wan factory.

11. There was overwhelming evidence against D1 and D3 on the substantive charges of possessing equipment for making false instruments at the Tsuen Wan premises and against D1 at the Tuen Mun premises. In D2's case, it was his home in Tuen Mun, which had been rented in the name of his mother-in-law who was not staying with his family, which was being used as the centre of operations. This operation was, for all practical purposes, identical to the Tsuen Wan operation where D2's fingerprints were found on pieces of tin foil. Additionally, there was a brief period when authorisation requests, relevant to the fraudulent activities in this case, ceased to be made. This coincided exactly with the periods when D2 was outside Hong Kong.

12. On arrest, D2 was silent and, in a later interview, he again exercised his right of silence to many of the questions he was asked. He did, however, tell police amongst other things that he had been at the flat in Tuen Mun for two months and that D1 stayed there rent-free because he was a friend.

The Defence Case

13. D2 gave evidence in his own defence at trial. He explained that the two tipping machines at his home came from an unprofitable magazine business with which he used to be concerned, known as "Option 3". D1, he said, was someone he never suspected of dishonesty. D1 had business interests in video clubs in Malaysia and he had not enquired as to what D1's daytime activities were during his stay in Hong Kong. He went on to say that he had no idea D1 had electrical equipment of the kind connected to the conspiracy even though he had sometimes been into D1's room while D1 was present.

14. D2's explanation for his fingerprints on some of the tin foil which was found in the Tsuen Wan factory was that D1 had once come round to his place of business and shown him samples of tin foil that he wanted to purchase at a cheap price. D2 offered to make enquiries and to try to find some foil of the same kind. He said that it was in this way his fingerprints must have got onto the tin foil which D1 had shown to him.

15. In short, it was D2's case that while he had in the past had numerous business dealings with D1 and that they were friends, he had no involvement in the operation and had been used by D1. D2 denied any direct connection with the premises in Tsuen Wan.

Grounds of Appeal

Ground 1

16. In his first amended perfected ground of appeal Mr. McCoy, S.C., submitted that the judge failed:

"to direct the jury as to which parts of the mass of evidence were relevant to which counts in the indictment. The evidence was summarised en bloc without any differentiation of it between the various conspiracy and substantive counts. Further, the jury were erroneously directed to use the evidence in any one count in deciding any other count. The co-conspirator's rule could not apply to the substantive counts. In effect, all the evidence was wrongly left for the consideration of the jury on all the counts".

17. There are two important and general observations to be made in relation to this ground. Firstly, the two conspiracies were, on the prosecution's case, effectively one extended conspiracy. When the factory in Tsuen Wan was closed down, following the police raid, the enterprise continued unabated, in exactly the same way as before albeit after D3 had made an enforced exit from the operation by virtue of his arrest. In such circumstances, although the hub of the enterprise required a change of location, nothing else altered. There was no necessity, as counsel on both sides in these proceedings accepted, for two separate conspiracies to be charged. Whilst there was no reason in law why two separate conspiracies should not have been alleged, this was an unnecessary complication and is largely responsible for having given a foundation for this ground of appeal.

18. Secondly, as the wording of the substantive counts plainly showed, these offences were charged as joint offences. The so-called co-conspirators rule is a label which is applicable not merely to conspiracy but to other offences also, where joint participation is involved.

19. The judge's directions to the jury were clear and accurate, and no criticism is made of them, as to the need for the jury to approach each of the counts separately. In particular the jury were directed at page 27E of the appeal bundle in these terms:

"Members of the jury, it is so, in this case, that a good deal of the evidence relevant to one count in the indictment is also relevant to other counts in the indictment, but you must still adhere to the requirement to consider the case against and for the defendant on each count separately. It certainly does not follow that your verdicts will be the same on each of the counts in the indictment.

I am not suggesting for one moment that this will be the case but, simply by way of example, it might be so that, on the evidence before you, you take a different view of the evidence connecting the defendant with the Tsuen Wan premises, and that connecting him to the Tuen Mun premises where he lived. I give that example, as I say, simply to emphasise to you the importance of dealing with each count on the indictment separately."

20. There were other directions, besides these, which emphasied the importance of the jury separately considering the evidence on each offence.

21. Mr. McCoy's complaint was not with the legal directions given to the jury but with the way in which the judge went on to deal with the evidence itself which, as he put it, was treated as an "amorphous mass", indistinguishably blended for the jury in relation to two separate conspiracies and the substantive counts.

22. It was submitted that one of the fundamental problems with the way in which the judge had summarised the evidence was that the jury was being invited to look at the similarities in the data found at the two factories being used to make false credit cards in order to determine whether the two premises were connected, when the Tuen Mun evidence was not admissible on the Tsuen Wan conspiracy and vice versa.

23. At first glance, there is some merit to this argument. However, whilst the case was large in size, having regard to the ramifications of such a large scale operation, in essence the issues were extremely simple and the trial lasted only eighteen days.

24. The central issues for the jury's determination in relation to the Tuen Mun factory related to whether or not D2 could be shown to be in possession of the 30 false credit cards found in D1's room (count 6) and to be in agreement with his friend (D1) to commit forgery at the flat (count 4). In order to establish these allegations, the prosecution relied on the physical connection between D2 and some of the incriminating items found inside D1's room and elsewhere at his home. The most obvious link in D1's room was D2's fingerprint on a shopping bag which contained a receipt, dated 11 December 1996, for datalink equipment worth $1,200, one of the possible uses for which was in respect of the production of false credit cards. D2's fingerprints were also found on a piece of paper in the dining room which bore a list of credit card numbers. In the maid's bedroom, two tipping machines were found for which D2 gave an explanation consistent, if accepted, with innocence.

25. The prosecution additionally relied on a highly significant piece of circumstantial evidence which not only had the potential to link D2 to the factory in Tuen Mun but also demonstrated that D2 was a central figure in that operation. As we have said already, despite D3's arrest and the closure of the Tsuen Wan factory, fraudulent transactions continued to be processed through various credit card companies using the same merchant identification numbers programmed through the POS terminal that had previously emanated from the Tsuen Wan premises. However, there was a short period in November and December 1996 when this process stopped altogether. This precisely coincided with a time when D2 was overseas. It is plain that all of this evidence could be considered together when the jury were left to decide whether the conspiracy alleged in count 4 and the possession of the 30 false credit cards particularised in count 6 had been made out. Count 6 was an offence alleged to have been committed jointly with D1. The jury was fully entitled to look at counts 4 and 6 together in order to decide what, if anything, had been established against D2.

26. Similarly, with counts 1 and 3, these could be looked at together for the purposes of the jury determining what had been proved. Amongst the property at the Tsuen Wan factory were two pieces of tin foil one coloured gold and the other silver, from amongst several others, which had a particular importance because they bore D2's fingerprints. The gold piece of foil (exhibit A5) was in the kitchen and the silver piece was found in the bedroom. Embossed into one of these pieces was the name Lau Tak-loi, which also happened to be the name used to purchase, on two different Mastercards, some of the equipment found at Tuen Mun. In addition, a rental receipt was found in the living-room at Tsuen Wan relating to the payment of rent on those premises. This bore the fingerprints of D2's wife.

27. Accepting that the judge should not have permitted the jury to use the evidence relating to counts 1 and 3 as evidence under the co-conspirators rule on counts 4 and 6, Mr. Reading, S.C., for the Respondent, dealt with this omission on the part of the judge by saying that perhaps a similar fact direction should have been given, but that the jury could not have been under any illusions as to their responsibilities. Clear directions had been given by the judge as to the requirement for separate verdicts and separate consideration of the evidence on all the counts. Mr. Reading also accepted that if the conspiracies had been charged as one single conspiracy, none of the difficulties raised in this ground of appeal would have arisen.

28. Mr. Reading submitted that if the omission to give a similar fact direction was material, the proviso to section 83 of the Criminal Procedure Ordinance, Cap. 221 should be applied because, in any event, the outcome was bound to have been the same. There was, he argued, nothing which materially distinguished the two factory sites so far as the equipment and the data were concerned, and everything to demonstrate that the same offenders had been at work. The question for the jury was to determine whether or not D2 was one of them.

29. We were left in no doubt of the correctness of Mr. Reading's submission, described by Mr. McCoy as the Respondent's "fall-back" position. The jury were aware that at D2's home address in December 1996 was a factory with which he denied any involvement. If they were satisfied, as in due course they were, that D2 bore responsibility for the factory at Tuen Mun in count 4, the circumstances of this case made it unreasonable to suppose that the factory at Tsuen Wan in count 1 was, by coincidence, similar but unconnected to D2. The two factories were, as we have already indicated, identical for practical purposes. The Tuen Mun factory simply carried on where the factory in Tsuen Wan had left off. Indeed, for a period of about one week, the indictment alleged an overlap of activities carried out at each of the factories.

30. The omission by the judge to give a formal similar fact direction, to the effect that the jury should ask themselves whether the circumstances of the two sets of offences in time and in place and, most importantly, in the style of operation were so closely related that they could be sure that they were operated by the same person or persons, could not in our judgment have materially affected the outcome to the case. In effect, the judge had summed up the case along these lines without expressly having said so. Nevertheless, plainly the judge was in error in effectively treating the two conspiracies as a single conspiracy, having regard to the way in which the indictment had been drafted. However, for the reasons we have given we consider that so far as this ground is concerned, the application of the proviso is appropriate.

31. Accordingly, this ground must fail.

Grounds 2 and 5

32. Ground 2 alleged that it was unfair to prosecute D2 on counts 1 and 4 for conspiracies with D1 and D3 (and with a person or persons unknown) after verdicts of not guilty had been entered by the judge against D1 and D3 when the prosecution offered no evidence against them on those charges. Mr. McCoy also submitted in this ground that the conspiracies added an unfair complication to a trial that could have been more simply proceeded with upon the basis of the substantive offences, and that to try these conspiracies with the substantives was an unfair mis-joinder.

33. At the commencement of these proceedings, Mr. McCoy added a fifth ground of appeal with which it is convenient to deal at the same time. This ground alleges that D2 was:

"wrongly convicted in law of the substantive (sic) counts which were manifestly inconsistent with the acquittals of the named co-accused in the conspiracy offences and some of the substantive offences"

34. In ground 5, Mr. McCoy obviously intended to refer to the conspiracies rather than the substantive offences and, in argument, made it plain that he did so. We can deal briefly with all of these matters. Before the start of the trial, defence counsel applied for the severance of the substantive offences from the conspiracies and for the prosecution to elect on which to proceed. The judge, in the exercise of his discretion, ruled that it was appropriate in the circumstances of the case, to include all the counts in the indictment relating to D2 for the jury's consideration. The basis of this ruling appears to have been that counts 2 and 5 provided strict alternatives on which the jury could convict in the event that they acquitted on the conspiracies in counts 1 and 4. Counts 3 and 6 were offences outside the immediate ambit of the conspiracy, because they represented the finished products of the conspiracies, and could be justified on that basis. In our judgment the joinder of the counts was entirely appropriate and is not open to sensible criticism.

35. In submitting that it was unfair to prosecute D2 on the conspiracies when the other two defendants had been acquitted after no evidence had been offered against them, and that the convictions for conspiracy were inconsistent with the acquittals of D1 and D3 which had been entered by formal order of the court, Mr. McCoy relied on HKSAR v Leung Sun-keung, (1999) 1 HKC 216. In that case, the applicant was charged with rape and, in the alternative, with administering drugs to facilitate intercourse. At the end of the prosecution's case, the judge ruled that there was no corroboration of the kind required by statute to support the charge of administering drugs and found no case to answer upon it. However, the prosecution relied on evidence that the applicant had administered the drugs in advancing their case of rape on which the jury ultimately convicted. It was held that where two charges are brought which are different to each other in substance and form, the mere fact that some of the evidence adduced on the rape charge was inconsistent with innocence on the charge of administering drugs to facilitate intercourse did not preclude the prosecution from adducing that evidence and asserting its truth when the jury considered its verdict on the charge of rape. The court went on to say, following Lord Hailsham's judgment in DPP v Humphreys, (1977) AC 1, that it was necessary to consider whether in substance the prosecution was attempting to adduce evidence which was inconsistent with the jury's acquittal of the applicant on the charge of administering drugs and whether the prosecution was, by relying on some of the evidence relevant to that charge, seeking to go behind the acquittal in its pursuance of the rape charge.

36. In the present case, the acquittals of D1 and D3 followed what might be termed a plea-bargain with the prosecution that the conspiracies alleged against them would not be pursued if pleas of guilty were entered by them to the substantive offences arising from those conspiracies. We feel bound to say that it would have been more appropriate for the prosecution to have agreed to have left on the file the conspiracies alleged against D1 and D3 when the conspiracies alleged against D2 were exactly the same offences and specified D1 and D3 as the co-conspirators. At the same time, the fact that D1 and D3 were acquitted of the conspiracies, when the judge entered verdicts of not guilty on those counts against them, did not imply that those same charges against D2 were not valid. D2 had not been acquitted of those counts and, in this sense alone, Leung Sun-keung has no application to the present case. Furthermore, there was nothing about the prosecution's course of action which was unfair to D2 in choosing to proceed against him on the conspiracies merely because D1 and D3 had admitted substantive charges in the alternative which, to all intents and purposes, covered the same ground.

37. In this context, and for the sake of completion, section 159E(4) of the Crimes Ordinance, Cap. 200, provides added support, were it needed, for the prosecution's decision to proceed on the conspiracies against D2. The terms of section 159E(4) are that:

"A person shall not be entitled to be acquitted of, or to have quashed his conviction for, the offence of conspiracy for the reason only that the only other person or persons with whom he is alleged, in the indictment or charge sheet, to have entered into that conspiracy are or have been acquitted."

38. Finally, in relation to this ground, we were satisfied that the inclusion of the conspiracy charges together with substantive charges for possession of false instruments and equipment to make false instruments did not create any undue complication to the case because the evidence was in practical terms the same, whether the conspiracies or the substantive charges were tried or both were tried together.

Ground 3

39. In Ground 3, Mr. McCoy submitted that the judge erred in law when he permitted the prosecution to put before the jury the rental receipt (Exhibit D5) which bore the Applicant's wife's fingerprints or, alternatively, that the judge failed to exercise his discretion to exclude it.

40. At trial, defence counsel had sought to have this evidence excluded on the basis that it proved nothing and merely gave rise to speculation about how it came to be found at the Tsuen Wan premises.

41. The judge ruled, having given the matter "a good deal of thought" overnight, that the evidence concerning the fingerprint of the Applicant's wife was admissible. He said:

"It is relevant to a fact in issue, the fact being the defendant's connection with the premises at Tsuen Wan. This evidence is arguably, at least on its own, somewhat tenuous, but taken with other circumstantial evidence it is, in my view, probative and I can see no good reason to exclude it."

42. The Applicant denied any connection with the premises in Tsuen Wan. Plainly the receipt itself was admissible. It related to the payment of rent for the premises in Tsuen Wan which had been rented by an unknown person using a false name. The fingerprint provided in itself a tenuous link with the Applicant, as the judge had rightly expressed it, but the two pieces of tin foil also found at the Tsuen Wan factory, bearing his own fingerprints, added weight to the prosecution's contention that he was connected to those premises.

43. The judge was fully entitled to have determined that the evidence had some probative weight and to have admitted the evidence.

44. There is no merit to this ground.

Ground 4

45. The fourth ground of appeal related to a general complaint that the judge's summing up was confusing and unfair. Mr. McCoy submitted in this ground that:

"The judge failed to include a succinct but accurate summary of the issues of fact as to which a decision was required, did not give a concise summary of the evidence and arguments on both sides, nor a helpful statement of the inferences which the jury were entitled to draw from their particular conclusions about the primary facts.

PARTICULARS

(a) The Judge realised that the issues were narrow where he said [42D]:

'Because there has been so much evidence presented to you in one form or another, I feel obliged to remind you of it in some detail, albeit that it seems to me that the matters in issue are perhaps somewhat narrow.'

(b) Nevertheless, the Judge considerably damaged and confused his directions on the law by 'copious recitations from the total content of his notebook' (see Lord Hailsham L.C. in R v Lawrence (1982) AC 510. What was essentially a simple case with narrow issues was drowned in a mass of unnecessary detail.

(c) Since DI and D3 had pleaded guilty, there was absolutely no need to go through all the evidence which linked the two premises, the equipment found in the premises and D1 and D3 together.

(d) The learned Judge failed to state the simple issues of fact which the jury had to decide.

(e) The learned judge failed to summarise the arguments on both sides.

(f) There was no straightforward discussion or highlighting of the evidence which went to the issues:

(i) In relation to Tuen Mun, was the fingerprint on the plastic bag significant? On any view, the bag must have been moved into Dl's bedroom on the day of his arrest, since it contained something only purchased that morning. Was the piece of paper JY 200 (4) containing numbers which did not appear on anything in Dl's room probative of guilt? Did the broken or unused tipping machines make any difference?

(ii) In relation to Tsuen Wan, what did the jury make of the Applicant's explanation [73G] about his fingerprint on the two pieces of foil? Similarly, what about his explanation for his wife's fingerprint on the receipt? In relation to the latter point, the Judge did not even remind the jury of the Applicant's evidence about it [73N]."

46. Mr. McCoy is factually correct in saying that the judge did not, at any stage in the course of the summing up, give a short summary of the issues to be decided by the jury when looked at from both sides. In most cases, but more particularly in cases of any length such as this, it is most helpful to a jury if the trial judge sets out, at the commencement of the summing up, the broad issues for their determination. This enables a jury to focus straightaway on the relevance and importance of the legal directions they are given thereafter, before a more detailed account of the evidence is given later in the summing up. However, although this practice has been adopted by many judges, there is no rule that it must be adopted. The proper test of the fairness and clarity of a summing up is whether or not, taken as a whole, it has provided to the jury an accurate exposition of the relevant law and a fair summary of the evidence, when looked at from the point of view of the prosecution and the defence.

47. The judge in the present case had correctly stated that the issues to be decided by the jury were "somewhat narrow". Having looked at the summing up as a whole, we found ourselves in agreement with Mr. Reading that the summing up provided proper directions as to the law and set out the factual issues for the decision of the jury with fairness and sufficient clarity.

48. Where Mr. McCoy was on stronger ground was in submitting that this was a "notebook summing up". Unfortunately, this is not the first time that this court has encountered such a complaint and, to a large extent, it is justified in the present case. What occurred was that the judge dealt with the evidence in the precise order in which it was called, instead of making an attempt to rationalise the evidence in a sensible and chronological sequence. In other words, the judge gave every appearance of having summarised the evidence straight from his notebook.

49. Having said this, while the summing up should have been delivered in a more helpful way, for example by reminding the jury of the evidence in relation to each of the factories separately, rather than dealing with the evidence in the order the prosecution chose to call it, with the result that the evidence about each factory considerably overlapped, we are satisfied that the overall effect of the summing up was to leave the jury in no doubt as to the issues. No criticism has been made of the legal directions actually given to the jury, and the reality of the case, as we have already said, was that in essence the issues were extremely simple and straightforward. This factor may well account for an absence of any reference to the contents of counsel's arguments before the jury. It should also be borne in mind, as the summing up made clear, that the Applicant's evidence had spread over two days and had only concluded on the day before the summing up began. It would have been very fresh in the jury's memory, and counsel's speeches would have been even more so.

50. The judge's summary of the Applicant's evidence included a reference to his explanation for the tipping machines found at his flat in Tuen Mun. There was no duty on the judge, as Mr. McCoy suggested, to comment on whether their presence made any difference. The prosecution's suggestion about these items was plain and the Applicant had given his answer to it.

51. The judge told the jury that the evidence given by the Applicant concerning his wife's fingerprint on the rental receipt found at the Tsuen Wan factory was something about which he did not need to remind them. He gave a similar direction in relation to the plastic bag with the Applicant's fingerprint on it, adding that "in any event, he (the Applicant) said he had seen it, I think, in the dining room and had instructed his servant to return it to the man Ng (D1) who the servant had told him it belonged to". Once again, the issue was plainly before the jury and there was no duty on the judge to have commented any further. Having said this, it is hard to see the logic in failing to remind the jury in terms about important evidence for the defence when this could have been done in almost as short a time as it took to tell them there was no need to remind them of it. In the event, the evidence had been given so recently that the jury would have had it well in mind.

52. There is no substance to this ground.

53. Accordingly, for the reasons we have given, we give leave and, treating the hearing as the appeal, we dismiss the appeal so far as it relates to conviction.

54. The applications relating to sentence in respect of all the Applicants will be the subject of a separate judgment.

Representation:

Mr. John Reading, S.C., S.A.D.P.P. and Mr. Isaac Tam Sze-lok, S.G.C. of the Department of Justice for the Respondent.

Miss Corinne Remedios instructed by the Legal Aid Department for D1 & D3/Applicants.

Mr. Gerard McCoy, S.C., and Mr. Christopher Grounds instructed by Messrs. Dixon Tang & Co. for D2/Applicant.