The Queen v. Li Fook Shiu, Ronald

CACC000519/1990

BETWEEN

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Coram: Fuad, V.-P., Clough & Penlington, JJ.A.

Dates of  hearing: 9, 10 and 11 April 1991

Date of judgment: 11 April 1991

Reasons for judgment handed down: 18 April 1991

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the court):

1. On 17th October 1990, the applicant, Mr. Ronald Li Fook Shiu, was convicted in the High Court (Bokhary, J. and a jury) of two offenes contrary to the Prevention of Bribery Ordinance, Cap. 201 ("the Ordinance"). On the following day, he was sentenced to 2 years' imprisonment for each offence, the sentences to run consecutively. He was ordered to pay a total of $865,365.58 to the Government and, to the Crown, the costs of the prosecution. He sought leave to appeal against the convictions and the sentences. At the conclusion of the hearing of the applications on 11th April 1991, we announced our decision to refuse them and now give our reasons.

2. Both counts in the indictment charged a contravention of s.9(1)(a) of the Ordinance, the relevant part of which is in these terms:

"9(1) Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his -

shall be guilty of an offence."

3. In s.2(1) are to be found the following definitions:

"'advantage' means -

....."

'"agent' includes a public servant and any person employed by or acting for another."

4. The Particulars of Offence were the same in Counts 1 and 2 except where reference is made to the date of the alleged offences and to the shares involved in the transactions. They were in the following terms - the count 2 variations are placed within square brackets:

"LI Fook-shiu, Ronald, on or about the 19th day of May, 1986, [the 7th day of April, 1987] in Hong Kong, being an agent of the Stock Exchange of Hong Kong Limited, ('the Exchange Company'), namely the Chairman of the Exchange Company and Convener of the Listing Sub-Committee, without lawful authority or reasonable excuse, accepted an advantage, namely a reward being a preferential allocation of a beneficial interest in 500,000 Cathay Pacific Airways Limited ordinary shares at the price of $3.88 [300,000 Novel Enterprises Limited ordinary shares at the price of $2.00] Hong Kong currency per share as an inducement to or reward for or otherwise on account of his doing or having done an act in relation to his principal's affairs or business, namely supporting the granting of the listing of and permission to deal in 2,652,325,000 Cathay Pacific Airways ordinary shares of $0.20 [569,384,000 Novel Enterprises Limited ordinary shares of $0.10] Hong Kong currency each on the Stock Market of the Exchange Company, or alternatively forbearing to do or having forborne to do an act in relation to his principal's affairs or business, namely or opposing or delaying the granting of the listing of and permission to deal in the said ordinary shares on the Stock Market of the Exchange Company."

5. It will have been observed that in the opening words of s.9(1) of the Ordinance, and in the particulars of each Count, the expressions "as an inducement to or" and "or otherwise on account of" occur. During the trial it was agreed that the case should proceed on the basis that neither Count in the indictment contained either of those averments.

6. At one time four stock markets operated in Hong Kong. The enactment of the Stock Exchanges Unification Ordinance, Cap. 361 had the effect of amalgamation the operations of those stock markets. In July 1980 the Stock Exchange of Hong Kong Limited ( "SEHK") was incorporated under our laws destined to become the corporate vehicle, to be known as the Exchange Company, which would operate a single stock market in Hong Kong and be called the Exchange Company. Pursuant to provisions in Cap. 361 in March 1981 the Securities Commission approved the SEHK as the designated Exchange Company. Once the Unified Exchange began to operate no other stock market could lawfully function in Hong Kong.

7. The Unified Exchange was run by a Committee ("the General Committee") elected from among the shareholders of the SEHK. This Committee could have a membership of not less than 12 and not more than 21, with one Chairman and five Vice-Chairman. The Committee was responsible for the operation and administration of all aspects of the Exchange working closely with the office of the commissioner for Securities.

8. Members of the General Committee were permitted to enter into contracts with the Exchange or with the SEHK subject to disclosure and subject to compliance with applicable provisions of the Companies Ordinance, Cap. 32 which require, inter aria, that such an interest be declared at the earliest practicable meeting of the directors.

9. The General Committee has power to delegate any of its powers to sub-committees. The Chairman. and the five Vice-Chairman were ex officio members of all sub-committees. One of the sub-committees formed  by the Committee was the Listing Sub-Committee, with exclusive jurisdiction to speak on behalf of the Committee in all matters dealing with applications for listing a stock on the Unified Exchange. It was to administer the Listing Rules and. advise the Committee upon them. The Listing sub-Committee was to consider and approve or reject any application for listing according to the criteria set out in the Listing Rules.

10. In addition, the Listing Department was set up to provide administrative support for the Listing Sub-Committee with responsibility for processing applications for fisting and ensuring compliance with the Listing Rules. These Rules provided that they were to be interpreted, administered and enforced by the Listing Sub-Committee and the Listing Department. Their interpretation was to be conclusive and binding upon all companies applying for listing as well as upon all companies already listed.

11. At all times material to the offences charged in the indictment, the applicant was the elected Chairman of the SEHK (he held this office for the maximum two terms, until December 1987) and the Chairman and Convener of the Listing Sub-Committee.

12. We mention here that it was the prosecution's case that the holding of these offices made the applicant the "agent" of the SEHK within the meaning of that word in s.2(1) of the Ordinance for the purposes of s.9(1). This proposition was strenuously challenged on behalf of the applicant at the trial but before us the challenge has been abandoned.

13. The applicant had been a practising stockbroker since 1969 and, in that year, it was he who had founded the Far East Stock Exchange, the second to be founded in Hong Kong. He was the Chairman of that Exchange from its foundation until it ceased operation in 1986 as a result of the establishment of the Unified Exchange. As required by s.48 (1) of the Securities Ordinance, Cap. 333, he was a registered dealer - as the owner of one seat in the SEHK. He had an interest in three further seats. These were registered in the names of three men who traded in partnership as Sun Shiu Hing Securities Company. Their fourth partner was Sun Shiu Hing Securities Company Ltd., of which company the applicant and one of his sons were the two directors and only shareholders, holding one share each.

14. We now turn to the basic facts relating to the two listings referred to respectively in Counts 1 and 2 of` the indictment and the acquisition by the applicant of the  shares which led to the institution of these proceedings against him. Before the public listing mentioned in  Count 1, Cathay Pacific Airways Ltd. was owned by Swire Pacific Ltd. (holding 70% of its shares) and the Hongkong and Shanghai Bank Ltd. (which held 30% of the shares). A decision was reached, towards the end of 1985, to seek a public listing on the Unified Exchange, for business reasons, and not for the purposes of raising capital. At the end of November 1985 there was a public announcement that an application would be made. Baring Brothers and Co. Ltd. and Wardley Ltd. were appointed joint financial advisers and issuing houses.

15. At the time of the listing application, the Cathay Pacific shareholders owned 2,652, 325, 500 shares. The application to the SEHK was made on 24th January 1986. The plan was that:

16. At a meeting of the Listing Sub-Committee held on 10th April 1986 and chaired by the applicant, approval in principle was given to the listing and among the matters discussed was a controversy that had arisen as to whether a transaction levy was or was not payable. On 14th April, a meeting of the Securities Commission was held and gave its approval to the imposition of a transaction levy and in the event, such a levy was paid both by vendors and by purchasers. On the following day the Chief Executive of SEHK wrote to Cathay Pacific signifying approval in principle to their application for listing, which happened to be the first new listing undertaken by the Unified Stock Exchange.

17. On 16th April 1986 an offer was made to SPS Investment Service Ltd. ("SPS") to participate in the sub-underwriting of 13,000,000 Cathay Pacific shares, to the value of $50,440,000. This offer was accepted on behalf of SPS by one if its directors. The applicant had an indirect interest of 9.2% of the issued shares of SPS through his interest in 36.8% of the issued shares of Sun Poh Shing.

18. On 17th April 1986 the applicant telephoned Mr. Keith Holman, a director of Wardley, asking whether shares could be made available from Wardley's allocation. Mr. Holman testified that he thought the applicant wanted the shares for SPS. Mr. Holman discussed the matter with Wardley's Chief Executive Officer, Mr. John Bond, and 500,000 Cathay Pacific shares out of Wardley's allocation, at the offer price of $3.88 were made available to the applicant.

19. On 22nd April 1986 the Cathay Pacific public issue prospectus was made available to the general public. The issue was over-subscribed some 56 times.

20. On 26th April of Wardley's executives received a cheque drawn on the account of Fullpath Nominees Ltd. for $1,965, 705 as payment for the 500, 000 Cathay pacific shares.

21. The applicant owned 8.95% of the issued share capital of Sun Poh Shing Finance Co. Ltd. and Modest Investment Company owned 17.85% . The applicant held 99.99% of the share capital of Modest. He was a director of both Fullpath and Modest, and Modest, in turn, was a director of Sun Poh Shing.

22. The 500,000 shares were eventually delivered to Fullpath on 17th May 1986. There is no dispute that the applicant became the beneficial owner of the shares. It was on 6th May 1986 that Wardley were formally notified that the Listing Sub-Committee had granted listing and permission to deal.

23. Between 20th May and 11th September 1986 the applicant sold these shares through his nominee company, Fullpath  and made a gross profit of $794,619.

24. The background facts relating to the shares mentioned in Count 2 are as follows. Novel Enterprises Ltd. ("Novel") was a privately held corporation. Most of its shares were held by a Mr. Ronald Chao and his family. In March 1987 Novel sought listing on the SEHK. The terms proposed were an offer for sale to the public of 142,500,000 shares to be preceded by a placing of 16,800,000 shares. Mr. Ronald Chao had originally intended to place 11,500,000 shares with Marubeni Hong Kong Limited, a company associated in business with Novel, and 2,000,000 shares with Mr. Ma Wan Yin (a director and chief accountant of Novel) in appreciation of his hard work in the preparation of the public offer. However, after he had received many requests from friends, business associates and staff for shares, Mr. Chao had second thoughts. But at the time the prospectus was to be printed, he had still not finally decided upon the distribution of the shares and so he asked Mr. Ma to accept an additional 3,000,000 shares on a temporary basis, on the understanding that they would be placed out to others at his (Mr. Chao's) direction in due course. Wardley and Indosuez Asia Ltd. were joint underwriters to the offer for sale.

25. The Listing Sub-Committee, chaired by the applicant, met on 3rd March 1987 to discuss Novel's application. The underwriters, who were present, had sought to list the shares at a price of $2.02 each but agreed to reduce the price to $2 for the convenience of calculation. The only proposed preferential placing of shares mentioned was the proposal to place 11,500,000 shares with Marubeni. The listing was approved in principle.

26. Soon after the meeting the applicant telephoned the executive of Wardley mainly responsible for the proposed listing, Mr. Ignatius Lam, and said that if shares were being placed he would like some shares to be placed for him. Mr. Lam discussed the matter with Mr. Chao who instructed Mr. Lam that 300,000 Novel shares should be placed for the applicant. Mr. Lam's recollection was that the telephone call had been made one or two days after the meeting. His superior, Mr. Raymond Lee, however, said that he remembered the call because it was so unusual, and that it had occurred on 4th March, the day following the meeting. The defence case was that the applicant had telephoned on the 5th or 6th March asking for the shares and this timing received a measure of support from Mr. Chao himself.

27. The formal application for listing approval was made on 16th March 1987 and formal approval was given on 30th March. Trading in Novel shares began on 8th April.

28. Meanwhile on 24th March l987 a circular had been prepared for the information of the SEHK that the  Novel  issue of new shares had been over-subscribed 23.2 times.

29. The transfer of the 300,000 shares into the  applicant's beneficial owhership was arranged through Fullpath on 3rd April 1987. The share certificates were handed over on payment, on the applicant's behalf of $600,000 by a cashier's order. Subsequently, the applicant offered his associate Mr. David Poon, the opportunity of buying 10,000 of these shares from him at the issue price. Mr. Poon accepted this offer. 240,000 of the shares still  beneficially owned by the applicant were sold on his behalf between 8th April and 29th June 1987, realising a profit for him of $70,746.

30. The explanation given by Mr. Holman of Wardley for agreeing to let the applicant have the 500,000 Cathay Pacific shares was that he presumed (but it seems that the applicant never said so) that the applicant wanted the shares for SPS. Mr. Holman said that he considered that his agreement to provide the shares would alleviate the continuing nervousness over possible criticism about the level of local participation in the issue, and that it would put an end to receiving further requests from the applicant for Cathay Pacific shares.

31. Mr. Chao's explanation for having complied with the applicant's request for the Novel shares was that he had been under the impression that it was the normal practice to give a small number of shares on all new listings to persons associated with the SEHK if they asked for them.

32. The applicant's account of the circumstances in which he made the request for an allocation of the Cathay Pacific shares was that he had spoken to his close associate, Mr. David Poon, after SPS had received Wardley's letter of 16th April offering SPS a sub-underwriting participation of 13 million of these shares. Together they had looked at the underwriters' proof of the prospectus, and on p.4 had read this:

"'In connection with these underwriting arrangements the Issuing Houses and Vendors have agreed that a number of sub-underwriters will apply under the offer for, and be allocated on a preferential basis at the Offer  Price, a total of 132,000,000 Offer Shares being approximately 33.2 per cent of the Offer Shares.'"

33. This made them think that, as sub-underwriters, they had a right to apply. The applicant told Mr. Poon that he would telephone Mr. Holman and enquire whether shares were available.  Mr. Poon said that even if they were able to obtain shares in the name of SPS it was not SPS's intention to hold the shares and that if shares were available he, the applicant, would have to take them up himself. And so on the following morning he telephoned Mr. Holman saying that they had sub-underwritten a large quantity of shares and asking if there were shares for sale. Mr. Holman said that he would have discussions, make enquiries and get back to him.

34. The applicant's evidence concerning the telephone call which resulted in his acquisition of the Novel shares, in summary, was that Mr. Poon had shown him the letter dated 5th March 1987 from Wardley and Indosuez containing an offer to SPS of sub-underwriting participation of 3.6 million shares as well as the underwriters' proof of  the prospectus enclosed in the letter. They wondered if there would be placements. He (the applicant) knew that placements were to be made with Marubeni Hong Kong Limited, Mr. Lester Ma and Mr. Shin. Since Mr. Ma was a young accountant, he thought that it might be possible that the $10 million worth of shares he had taken up were not held on his own account and were for others. He therefore telephoned Mr. Ignatius Lam (he thought this was on 6th March) and asked him if substantial shareholders had made shares available for placing. When Mr. Lam had said that this was so, he had declared his interest in acquiring some of the shares but no one mentioned quantity. Mr. Lam said that he would make enquiries and contact him. Mr. Lam was as good as his word and told him on the telephone that Mr. Chao would let him have 300,000 Novel shares at the issue price.

35. Mr. Anthony Scrivener, Q.C. (who did not appear for the defence at the trial) submitted that the judge misdirected the jury by telling them that it was sufficient for the prosecution to prove that the applicant had received a "reward" by establishing that he believed that the sale of shares to him was a recompense or reward. There was, it is said, no sufficient evidence that either of the sales of shares was in the nature of a "reward" within the meaning of that word as defined in s.2(1) of the Ordinance, or that either sale was in the nature of a reward "for his having done or forborne to do" the alleged act within the meaning of s.9(1). It was a misdirection to say that it was sufficient for the prosecution to prove that the applicant had accepted an advantage believing it to have been provided as a reward. It is contended that the direction should rather have been that the prosecution was required to prove that the applicant had accepted the reward "for his having done or forborne to do" the act alleged and that this had to be proved by reference to the whole of the relevant evidence including what transpired in words and deeds between the applicant and the providers of the shares and not merely by reference to the applicant's own perceived belief.

36. Mr. Scrivener submitted that it was essential for the judge to have directed the jury on the meaning of the word "reward" in s.2(1) before going on to direct them on the concept of accepting the advantage (the reward) as a reward for the purposes of s.9(1) (a). He should not have led the jury to believe .that if they found there had been a preferential allocation of the shares, that alone was capable of amounting to the "reward" alleged

37. On this aspect of the case, the judge first said (at p.6) of the transcript of the summing up:

"Turning to the question of 'advantage', it is the prosecution's case in respect of each count that the defendant accepted an advantage, being a reward, in the form of a preferential allocation of the beneficial   interest in shares...."

38. The judge then directed the jury (pp.7-8) that contrary to the defence submission that what the applicant had received in the way of the two lots of shares were not even capable to being a reward, as a matter of law it was open to them to conclude in relation to each Count that what the applicant had obtained was a reward and had been accepted by him as a reward.

39. The judge explained that what was said by the prosecution in respect of each Count was that the applicant had got something which was not available to everyone, namely a preferential allocation which enabled him to buy the shares he wanted to buy without having to put in an application which would have had to be accompanied by a cheque and which may not have resulted in his getting all the shares he had applied for. An applicant could put in a massive application so that he would still get a lot of shares even if his application were severely scaled down, but then he would have had to come up with a massive cheque. We remark in passing that we were told that if the applicant had applied for. the Cathay Pacific shares in the ordinary way, as it turned out, to end up with 500,000 shares he would have had to have applied for 40  million shares (by a written application) accompanied by a cheque for $140 million.

40. At pp.30-31, the judge had listed "the elements of which you must be satisfied beyond reasonable doubt before you can convict...". He repeated the "third element" at p.36 in these terms:

"Third, that the allotment was a reward in the form of a preferential allocation of the beneficial interest in the shares for his act, in his capacity as agent, of` supporting or approving the grant or for his forbearance, in that capacity, in not opposing or delaying the grant."

41. The judge had given the following direction, at p.8, as to what he called "the provider's intention".

"A receiver may be behaving corruptly even if the provider was behaving innocently. If a provider thought that he was providing something innocently but the receiver believed that the provider was providing it as a corrupt reward and he accepted it as a corrupt reward, believing it to have been provided as a corrupt reward, then the receiver behaved corruptly even if the provider behaved innocently. The fact that the provider had an innocent state of mind may be taken into account in favour of the receiver in deciding whether you are sure that he, the receiver had a corrupt state of mind. But the provider's innocent state of mind is not of itself a defence for a receiver. If you are sure that his, the receiver's state of mind was a corrupt one, if you are sure of that, then whether what was accepted is a reward is judged by reference to the guilty mind of the receiver rather than by the innocent mind of the provider."

He returned to this theme in almost identical language at p.32 and went on to emphasise that if an agent accepted a reward, accepting and believing it to be a reward for his having done or forborne to do any act in relation to his principal's affairs, it was no defence that he did not in fact so do or forbear.

42. Between pp.36 and 39 the judge reminded the jury that if they were satisfied that the receiver's state of mind was corrupt, then whether what was accepted was to be regarded as a reward was to be judged by reference to the guilty mind of the receiver rather than the innocent mind of the provider. This point arose in the present, case, he said, because there was no evidence that the providers had intended to reward the applicant or to behave in a corrupt way; indeed, they had denied that they had had any such intention. Thus the applicant's state of mind was crucial. But first it was necessary in respect of each Count to be satisfied that what he received was capable of constituting a reward. Whatever the receiver may have intended, he could not be convicted of the offences charged against the applicant if what he received was incapable of constituting a reward.

43. In respect of either Count, the judge told the jury, if they were not satisfied beyond reasonable doubt that what the applicant had received was capable of constituting a reward, then an acquittal must be the result; this did not mean, however, that a conviction must result if they were satisfied beyond reasonable doubt that what he had received was capable of constituting a reward for there were other matters of which they had to be satisfied to that degree before they could convict.

44. The judge went on to emphasise to the jury that it was a matter for them to decide whether what the applicant had received was capable of constituting a reward. While it was true that there was no guarantee of profit on either lot of shares the applicant had obtained at the offer price, and also that the possibility of loss on them existed, the fact was that people who did not get allotments would have had to apply for any of the shares they wanted and their applications would have had to be accompanied by cheques in full payment. Moreover they were not assured of getting all the shares for which they applied. The jury might ask  themselves whether the applicant would have approached anybody for any shares on which he did not expect to make a profit. The judge added:

"For the purposes of the offence with which the defendant is charged, reward may be constituted by recompense in the form of any interest in property of any description."

45. In relation to each Count in turn the judge said this to the jury:

"... are you satisfied beyond reasonable doubt that what the defendant received was capable of constituting a reward? If you are, then you can find that it was a reward, provided that you are also satisfied beyond reasonable doubt that it was accepted by him as, and believing it to be, a reward."

46. The judge then stressed to the jury that the applicant's state of mind was crucial. He had to be acquitted on each Count if they were not satisfied beyond reasonable doubt that it was the corrupt state of mind alleged by the prosecution, for if it was not, then what he had accepted was not accepted as a reward and indeed would not be a reward at all.

47. The judge said that in relation to each Count the jury had to ask themselves this question:

"Did the defendant realise throughout that the allotment which he sought and got could be effectively solicited as a reward as charged because - and only because - he was the Exchange Company's Chairman and the Convener of its Listing Committee and had chaired the "listing meeting at which the application in question received approval in principle?"

48. The direction continued that there must be an acquittal if the jury were left in a reasonable doubt as to whether the applicant had realised that. The judge concluded this part of his summing up by telling the jury that if, however, they were sure that he had realised that (because the only reasonable inference was that he must have realised that) then the strength which the prosecution's case might acquire as a consequence of that conclusion might not be lost on them.

49. It was, of course, necessary for the judge to direct the jury on every ingredient of the offences as charged. It is true that before they could convict on either Count in the indictment they had to be satisfied that the advantage the applicant had accepted as a reward for doing or forbearing to do the acts particularised, was a "reward" within the meaning of that word as used in s.2 (1) (a). But so long as the jury are made to understand what has to be proved, no particular form of words or order of treatment can be insisted upon. It seems to us that if someone accepts "money or any valuable security or other property ..." for doing or forbearing to do something, and if what he has accepted cannot be categorised as a gift, loan, fee or commission, then what he has received must be a reward. When a reward is relied upon as being the specified advantage, s.9(1) is to be read as if it states, somewhat tautologously: "Any agent who ... accepts any reward as a reward for ..."

50. We consider that the judge's summing up cannot be faulted on the grounds put forward on behalf of the applicant. The directions were very full and clear.

51. Mr. Scrivener has submitted that the judge misdirected the jury on the requisite intent of a s.9(1) offence. We say at once that we can find no misdirection in any of the particular directions criticised - p.8 lines 20 to 35 and p.32 lines D to N - and as we have indicated, the judge clearly told the jury that they could take into account, in favour of the applicant, when deciding whether they were sure that he had a corrupt state of mind, the fact that the providers of the shares themselves had innocent states of mind. We think that the judge's summing up as a whole correctly recognised and reflected the fact that this was a solicitation case on the facts and that Mr. Michael Kalisher, Q.C. for the Crown was right in suggesting that the advantage very largely took its character from the mind of the person soliciting.

52. Mr.Scrivener contended that since the evidence showed that none of the providers of the shares had any intention to reward the applicant and there was no evidence showing conduct which might have led anyone, including the applicant, to think that the shares were sold to him as a reward for the acts averred, the judge should have set out the evidence on this matter or should have directed the jury on the proper inferences to be drawn therefrom. A proper direction would, it is said, have emphasised that:

53. With great respect to counsel, we do not think that it can fairly be said that the judge told the jury, in effect, to ignore the evidence to which we have just referred. That is not how we read the summing up. We think that the jury received all the help they needed on these matters and that there were no misdirections or non-directions.

54. On behalf of the applicant, complaint is made about the passages in the summing up which occur on pp.57 and 58. There the judge explained that the case for the prosecution, on each Count, was that the only reasonable inference was that when the applicant approached someone in Wardley for an allotment, he was seeking a reward for his past act or forbearance as charged, and that the only reasonable inference which followed was that when he accepted an allotment for himself he accepted it as, and believing it to be, a reward for his past act or forbearance as charged. The prosecution had submitted that in deciding on each Count whether the allotment accepted by the applicant had been accepted by him on that basis and in that belief, the jury had to consider what he believed Wardley was doing.

55. The judge then asked the jury to consider whether the applicant had believed that Wardley was acting to provide him with a reward for the past matters and told them that in resolving that question they were entitled to consider whether the applicant must have had in mind that Wardley was aware that it would have to deal with him, among others, on future listings. The judge's direction continued: if the applicant had believed that Wardley was acting to reward him for past matters, then the fact that he might also have believed that Wardley had an eye as well on the future would not mean that what he had got was not accepted as, and in the belief that it was, a reward for past matters.

56. The judge invited the jury to consider whether the applicant had believed that Wardley wanted to keep on good, terms with him because they had to deal with him in the future. If he had believed that they should consider whether that belief led to another belief, that Wardley would act to provide him with a reward for past matters if he sought such a reward. In relation to each Count,  if the applicant had believed that wardley would so act, had he sought and then accepted an allotment in that belief? Had he sought and then accepted it as, and believing it to be, a reward for past matters?

57. The judge went on to explain to the jury that what the applicant had believed was in Wardley's mind in regard to the future had been introduced by the prosecution to shed light on two issues: whether he had believed when he had asked Wardley for an allotment for himself that he would be given the shares as a reward for past matters and. whether, when he accepted the alloment, he believed that it was a reward for past matters and accepted it as such.

58. The judge concluded this part of his summing up by saying:

"That is how the future comes into the picture. There is no allegation whatsoever that the defendant either sought or accepted a bribe or anything of the kind for anything that he was going to do or forbear to do in the future. He is not charged with anything of that kind. There is no allegation of anything of that kind against him. You must not allow the thought of anything of that kind to enter into your minds. Central to the prosecution's submission with which I have been dealing is the proposition that the defendant must have believed that Wardley wanted to keep on good terms with him."

59. It was submitted on behalf of the applicant that since the case for the prosecution had not been based upon the provision of a "general sweetener" but that the applicant had received a "reward" for having supported or forborne from opposing or delaying the granting of the listings, the judge had misdirected the jury in inviting them to consider whether the applicant must have had in mind that Wardley knew that it would have to deal with him on future listings, and that the applicant must have believed that Wardley wanted to keep on good terms with him. The judge had specifically stressed to the jury that "there were no allegations that the applicant had sought or accepted a bribe for anything he was going to do, or forbear to do, in the future."

60. It is contended that the judge should have directed the jury that the applicant must be acquitted if the evidence merely established that the sales of the shares were made (a) for the purpose of keeping the providers on good terms with the applicant in the future or (b) because the applicant knew the providers wanted to keep a good terms with him in the future - and if the evidence was equivocal as to these matters.

61. The question of the relevance of the fact that merchant bankers had to deal with the applicant on a continuous and day to day basis, and what effect this might have on what the applicant might feel he was able to ask of them, arose during the cross-examination by Mr. Kalisher of the applicant on an objection by his counsel. There was a long discussion on the point, in the absence of the jury, recorded on pp.2026 to 2045 of the transcript. At p.2043 the judge said:

"I think that my ruling is that you are entitled to put to him that it was in his mind that while Wardley's intention was to reward him, they had also a motive to get on with him in future. You are entitled to suggest that."

After a little further discussion, the judge said, at p.2045:

"But there it is. I have ruled that Mr. KALISHER may suggest to this witness that he believed that Wardley was rewarding him for past support or forbearance, and that in doing so he had it in mind that the fulfillment of that intention would-be that it would facilitate their dealings with him in future. It's as simple as that."

62. We find ourselves quite unable to accept that the judge's ruling was wrong. It would, in our view, have been quite unreal to ignore the effect of the applicant's position, and the fact that he would continue in it, on the minds of everyone concerned. We accept Mr. Kalisher's submission that these factors were relevant for they might have influenced the providers of the shares to accede to the applicant's requests for them; and they could also have been the basis upon which the applicant would have thought that due to his influence and power he could obtain these advantages although he had done nothing special to earn them. Mr. Kalisher reminded us that a major point made by the defence at the trial (as it was before us) was that the applicant had no reason to believe that he was being rewarded since he had done nothing to deserve one. In Mr. Kalisher's words: "The answer to that point was in the future."

63. We would add that we do not think that the line of cross-examination permitted unfairly prejudiced the applicant.

64. Counsel representing the applicant at the trial said this to the judge:

"What I was going to invite your Lordship to say, in order to avoid any possibility of misunderstanding on the part of the jury, that if the jury only believed that Wardley wanted to keep on good terms with him and you are not sure that he accepted the shares as a reward, then the verdict would be one of not guilty."

65. It was for the judge, who clearly had an excellent feel of the case by then and had had ample opportunity to appraise the jury, to decide how he should deal with the matter, and whether it was necessary or, indeed, desirable to give an express direction in the form suggested by defence counsel. The judge might, we think justifiably, have felt that a direction on those lines could insidiously undermine the actual defence put forward by introducing a notion that might put the applicant in a bad light in the eyes of the jury.

66. We have no doubt, after examining all the relevant parts of the summing up, that the jury could not have been confused on this aspect of the case in the light of the careful way the judge formulated his directions. It will have been seen in one of the passages from the summing up which we have quoted, that the judge invited the jury to ask themselves this question: ''Did the defendant realise throughout that the allotment he sought and got could effectively be solicited as a reward as charged..." And he repeated the question in the same form for each count. We mention here that we think that Mr. Kalisher is right when he points out that those questions were asked in that form to deal with the capacity element of the offence. '

67. In our respectful opinion the judge's treatment of this issue was impressive. We would add that in our view  the following passage from pp.32-33 of the summing up (which we have earlier briefly summarised) could hardly be clearer and must have removed any possibility at all of confusion in the jury's mind:

"The third point is this. If an agent accepts a reward, accepting it as and believing it to be, a reward for his having done or forborne to do any act in relation to his principal's affiars and business, then it is no defence that he did not in fact so do or forbear. I trust that I have already made this clear to you: In respect of each count, the defendant is entitled to be acquitted if you are not satisfied beyond reasonable doubt that he was an agent and that he accepted a reward as charged, accepting it as and believing it to be a reward for his having done or forborne to do an act in relation to his principal's affairs or business as charged. Anyway, if I have not made that clear to you before, then I have made it clear to you now. But if you are satisfied beyond reasonable doubt of all of that, then it is no defence that he did not in fact so door forbear." [Emphasis supplied]

68. Mr. Scrivener pointed to a number of factors which he classified as "the prosecution's difficulties": there was no evidence that the applicant had acted improperly in connection with the listings and the applications had been supported by the Listing Sub-Committee as a whole, as well as by the Commissioner of Securities; the providers of the shares were not aware that the applicant had done (or not done) anything for them meriting a reward; they did not intend to provide the shares as a reward and said nothing to the applicant which would have led him to believe that he was being given the shares as a reward for the part he played in the listing process; and Hong Kong stockbrokers were allowed to, and did, deal in snares on their own account. While all this is true, it must not be overlooked that the prosecution were seeking to persuade the jury of the significance of facts such as the following: that the applicant asked personally for both lots of shares, immediately, or very soon after, the listing meeting; that he had been told at the Cathay Pacific listing meeting, and at a meeting some three weeks before (in the opinion of the witnesses, in unmistakable terms) that none of those shares would be made available to local brokers; that nothing was mentioned about the applicant's desire to have either lots of shares at the respective listing meetings and no disclousre of the acquisition of his shares was ever made; the applicant's remarks about the availability of the Cathay Pacific shares at the time of the issue, during a meeting of the General Committee after the November 1987 closure of the Stock Exchange; that the Novel shares were paid for with an anonymous cashier's order and no transaction levy, brokerage, stamp duty or other fees were paid in respect of them; and that the applicant had no special relationship with either Cathay Pacific or Novel. Of course, once the applicant had given evidence the jury would be entitled to consider how far they could believe the applicant's explanations for what he did, if they felt they called for an explanation.

69. To return to Mr. Scrivener's submission, it was, he said, to get over the "prosecution's difficulaties" that the Crown had introduced the concept that the applicant had accepted the shares believing that the providers would want to keep him sweet in the future or that he had been successful in getting the shares he wanted by taking advantage of his position as Chairman of the Stock Exchange, and Chairman and convener of the Listing Sub-Committee. He took us through the record which showed how this matter had been referred to during earlier stages of the proceedings, pre-trial, and at the trial itself. All this was despite the fact that the prosecution had specifically disclaimed any reliance on the concept of "general sweetener" by the way the two Counts in the indictment had been framed in their final form.

70. Mr. Scrivener suggested that at the conclusion of the trial, the prosecution could only rely on inferences, and the inferences which could reasonably be drawn on that evidence (apart from an inference that the applicant was wholly innocent) were three in number: (a) that the offences had been proved as charged, (b) that the shares were given and accepted as a "general sweetener" for the future and (c) that the shares were given and received simply because of the applicant's position and not as a reward for purposes averred in the charges. There was, he contended, nothing to indicate why one inference was more probable than any other and the inference which would have to be drawn to establish the offences charged was not the only possible one.

71. Counsel relied on R. v. Laverty (1970) 50 Cr App R 495 which was a case of obtaining property by deception. There Lord Parker, C.J., giving he judgment of the Court of Appeal, recognised that in such cases the inducement need not be proved by direct evidence if the facts were such that the alleged false pretence was the only reason which could be suggested as having been the operative inducement (R. v. Sullivan (1945) 30 Cr App R 132). But he went on to say (and this is the passage from the judgment which Mr. Scrivener particularly relies upon):

"This Court is very anxious not to extend the principle in Sullivan more than is necessary. The proper way of proving these matters is through the mouth of the person to whom the false representation is conveyed, and further it seems to the Court in the present case that no jury could say that the only inference here was that Mr. Bedborough parted with his money by reason of this false representation. Mr. Bedborough may well have been of the mind which he stated, namely that what operated on his mind was the belief that the appellant was the owner. Provided that the appellant was the owner, it may well be that Mr. Bedborough did not mind that the car did not bear its original number plates. At any rate as it seems to the Court it cannot be said that the only possible inference here is that that fact actuated upon Mr. Bedborough's mind. [Emphasis supplied]

72. We think that it is necessary, when considering Laverty, to bear in mind that at p.497. Lord Parker had said:" The real point is whether there was any evidence here which enabled the jury to draw that inference." We discern no principle from this case which would govern the decision in the matter before us.

73. Mr. Scrivener also cited McGreevy v. D.P.P. [1973]1 WLR 276 (HL) and contended that the present was a case in which the judge should have given guidance to the jury on the question of inferences by a specific direction. We are unable to accept the proposition advanced by counsel that even if the judge has given impeccable directions the verdict must be not guilty if the inference upon which guilt depends is not the only reasonable one. Counsel submitted that even when a case is properly left to the jury on the correct application of the principles stated in R. v. Galbraith (1981) 73 Cr App R 124 (and he concedes that this was the position here) if a conviction would depend on an inference to be drawn to the jury, where the inference which would justify a conviction of the offence as charged is not the only one which could be drawn, there must be a direction to acquit, and that this would be so even if the applicant had not given or called any evidence.

74. We think that the following passage from the speech of Lord Morris in McGreevy, at p.285, shows that such a broadly stated principle cannot be right:

"In my view, the basic necessity before guilt of a criminal charge cam be pronounced is that the jury are satisfied of guilt beyond all reasonable doubt. This is a conception that a jury can readily understand and by clear exposition can readily be made to understand. So also can a jury readily understand that from one piece of evidence which they accept various inferences might be drawn. It requires no more than ordinary commonsense for a jury to understand that if one suggested inference from an accepted piece of evidence leads to a conclusion of guilt and another suggested inference to a conclusion of innocence a jury could not on that piece of evidence alone be satisfied of guilt beyond all reasonable doubt unless they wholly rejected and excluded the latter suggestion. Furthermore a jury can fully understand that if the facts which they accept are consistent with guilt but also consistent with innocence they could not say that they were satisfied of guilt beyond all reasonable doubt. Equally a jury can fully understand that if a fact which they accept is inconsistent with guilt or may be so they could not say that they were satisfied of guilt beyond all reasonable doubt." [Emphasis supplied].

75. It must be borne in mind, too, that the contention which was rejected by the House of Lords in McGreevy was that the jury should have been warned in terms that they must not convict unless they could exclude every reasonable explanation of the facts proved other than the guilt of the accused. We think it is worth recalling what Lord Morris had to say at p.281:

"The solemn function of those concerned in a criminal trial is to clear the innocent and to convict the guilty. It is, however, not for the judge but for the jury to decide what evidence is to be accepted and what conclusion should be drawn from it. It is not to be assumed that members of a jury will abandon their reasoning powers and, having decided that they accept as true some particular piece of evidence, will not proceed further to consider whether the effect of that piece of evidence is to point to guilt or is neutral or is to point of innocence. Nor is it to be assumed that in the process of weighing up a great many separate pieces of evidence they will forget the fundamental direction, if carefully given to them, that they must not convict unless they are satisfied that guilt has been proved and has been proved beyond all reasonable doubt."

76. We also draw attention to Lord Lane's observations at p.127 of Galbraith:

"(a) Where the judge comes to the conclusion that the prosecution evidence, taken as its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop te case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

77. Where there has been a verdict of guilty, if an appellate court, on a review of the evidence, feels that the jury were not justified in rejecting and excluding an inference which would have led to a conclusion of innocence, (to use the language employed by Lord Morris), the court would, no doubt, allow the appeal as being "unsafe or unsatisfactory" on principles explained, for example, by Widgery, L.J. (as he then was) in R. v. Cooper (1968) 53 Cr App R 82.

78. One of the matters raised on behalf of the applicant which it was said contributed to making the verdict unsafe and unsatisfactory was the way the judge dealt with a question asked by the jury. Very close to the conclusion of the summing up which spread over two days the jury sent a note to the judge raising the following question :

"My Lord, in respect of the four elements on which we  have to consider in order to arrive at a verdict, can you enlighten us if it is a must that all these four elements have to satisfy us without doubt before ore can come to a conclusion. Thank you." [The jury's own emphasis].

79. As was perfectly proper, in the absence of the jury, the judge showed counsel the note he had received and indicated how he intended to answer the question. He invited submissions and, after hearing both counsel, read out what he was minded to say. Each counsel in turn expressed his satisfaction with the form of the proposed direction.

80. The jury then returned to court. The judge read back their question to them and said this:

"Members of the jury, as to that, what I tell you is this: All four elements have to be proved. All have to be proved beyond reasonable doubt by the prosecution. Your question uses the expression 'without doubt'. The standard of proof is not satisfaction beyond doubt; it is satisfaction beyond reasonable doubt. Note the word 'reasonable'. You have to be satisfied so that you feel sure. That is what being satisfied beyond reasonable doubt means. What you are concerned with is a reasonable doubt. It is not a fanciful doubt. It is a doubt for which you can give a reason."

81. Mr. Scrivener submitted that to insist on a reason for any doubt was effectively to reverse the burden/standard of proof. He relied on R. V. Stafford (1968) 53 Cr App R 1 as an example of a case in which that formula had been criticised. He suggested that the error had been all the more prejudicial since the direction had been given in answer to a specific question which showed that the jury had not understood the judge's earlier, correct, direction and it was the latter direction which the jury had taken with them into the jury room almost immediately after it had been given.

82. It is not without interest to note (p.70) that the direction the judge originally had in mind to give did not include the sentence of which complaint is made and he told counsel during the discussion in the absence of the jury: "I am not minded to start discussing it [the word reasonable] any further than that." He added: "but I will listen to submissions."

83. The transcript shows that leading counsel then appearing for the applicant said, inter alia:

"I suggest the language which your Lordship has indicated that it must not be some fanciful doubt. It must be a doubt for which they can give a reason. ... May I suggest that the starting-point should be the use of the word 'sure' because that is the word which is most commonly found in the judgments which have been given; and it is against that background that one sees the alternative formula 'without reasonable doubt', that is you must be sure and one way of looking at a matter is to say, 'Can you find a doubt for which  you can give a reason?' That is the way in which I would suggest that your Lordship might deal with the matter."

84. Mr. Kalisher at the time agreed that this would be the right way of dealing with the jury's query.

85. It will not often happen that complaint is made of the form of a particular direction which has been given in terms expressly asked for by experienced leading counsel acting for the defendant but, of course, there is nothing to prevent a contrary stand being taken on appeal.

86. Apart from Stafford there are other cases where appellate courts have made it clear that they dislike phrases such as: "Remember that a reasonable doubt is one for which you could give reasons if asked", the formula used in Stafford. As we have indicated, the judge was well aware that it is better not to attempt to explain to a jury what is meant by "reasonable doubt", and there can be no doubt that his direction at the start of his summing up (p.2) was impeccable:

"The burden of proof is upon the prosecution thrughout and never shifts. It is for the prosecution to establish the defendant's guilt. Having so directed you on the burden of proof, I turn now to direct you on the standard of proof. Before you can convict you must be satisfied so that you feel sure of the defendant's guilt. In other words, you must be satisfied beyond reasonable doubt of the defendant's guilt before you can convict. No inference adverse to the defendant can be drawn unless it is the only reasonable inference."

87. The judge was bound to respond in one way or another to the jury's question. It has been said time and time again that it is wrong for appellate courts to attempt to lay down a precise formula for a direction on the standard of proof. However, we merely draw attention to the fact that the privy Council, in Walters v. R. [1969] 2 AC 26 (Lord Diplock gave the judgment of the Board) approved the following: "A reasonable doubt is that quality and kind of doubt which when you are dealing with matters of importance in your own affairs you allow to influence you one way or the other. " When a jury specifically asks for a direction on this point, so that some additional direction is rendered necessary, we suggest that a judge should avoid speaking in terms of a doubt for which a reason can be given.

88. Stafford was reported "solely regard to the circumstances in which the court will admit fresh evidence and the jurisdiction of the court to certify that a point of law of general public importance is involved." Although we know that the trig judge had used tile words criticised by Edmund Davies, L.U. ("Remember that a reasonable doubt is one for which you can give reasons if you were asked") we do not know what else be said. Here we know that just before the sentence of which complaint is made, the judge had emphasised that the jury had to be satisfied so that they felt sure and that this was what being satisfied beyond reasonable doubt meant .

89. Taking the summing up as a whole, we were firmly convinced that the jury could not have been misled or confused as to the standard of proof required to be established by the Prosecution to prove guilt. We concluded that the use of the sentence of which complaint is now made (virtually put into the judge's mouth by defence counsel] did not render, or contribute in any way to rendering, the verdict unsafe 'or unsatisfactory.

90. It was contended on behalf of the applicant that the judge had failed to direct the jury adequately on the defence case regarding transaction levies and what was called "pink form brokerage" payable by issuing houses, and that the directions given, if not wrong, were at least unfair to the defence.

91. The facts were that in accordance with a proposal approved by the Securities Commission early in 1986, a transaction levy of 0.025% would be charged by the SEHK on both parties to a transaction passing through the Exchange. The Cathay Pacific offer was the first to be affected by this decision. At the meeting on 20th March 1986 both Wardleys and Barings indicted that they did not think the levy should be paid. The matter was further discussed at the listing meeting on 10th April and the applicant made it clear that he wanted the levy to be paid. This was the only matter left outstanding when the meeting concluded.

92. On 14th April the transaction levy was approved by the Commissioner for Securities and, was referred to in the prospectus in so far as purchasers were concerned.

93. Mr. Scrivener points out that the applicant had never given way on the issue. Wardleys had clearly felt that the listing would not be approved unless the levy was paid and this was why they agreed, on 6th May 1986, to pay it. The evidence showed that the applicant was insisting that issuing houses should pay the transaction levy (and the pink form brokerage) even after the listing had been approved in principle.

94. At pp.50-51, the judge reminded the jury of the emphasis placed by defence counsel on the fact that the applicant had insisted upon the payment of the levy and the brokerage, and what this pointed to. The judge added:

"And you will also remember that, as the defence has formally admitted, the Cathay listing was, I quote, 'approved in principle at the meeting of the listing subcommittee on 10 April 1986.' Such approval in principle was not withheld even though the question of transaction levy was still outstanding. It is true that the Exchange Company's letter of April 15, 1986, giving written approval in principle to the Cathay listing specified that such approval was subject to the listing requirements of the Exchange being satisfied; and it is true that that covered the transaction levy. But you will of course remember the prosecution's point that the allotment of Cathay shares which the defendant got as a consequence of his approach to Mr. HOLMAN on - remember the date, April 17, 1986 - would have been of no use to him if the Cathay listing had failed to go througn because of stalemate over the transaction levy or for any other reason." [Emphasis supplied]

95. It was submitted that the sentence emphasised in the passage above wrongly implied that there was something sinister about the approval of listing in such circumstances, whereas the evidence was quite the other way. We are quite unable to discern any sinister implication in what the judge said. He was merely stating a fact.

96. Nor do we agree that the final sentence of the passage from the summing up we have just quoted contains an erroneous direction and one which is unfair to the defence since they had not been given an opportunity to deal with the point. We think that the judge was fully entitled to make that comment on the matter as he saw it. It must be noted that very early in the summing up the judge had told the jury:

"When it comes to the facts, however, you are, as I have said, the sole judges. It is for you to decide what evidence you accept and What evidence you reject. If I seem to express a view of the facts, you must reject that view if it does not appeal to you. Also, if I omit to mention evidence which you think is important, you must take it into account even though I have omitted to mention it. And if I stress evidence which you think is unimportant, you must disregard the fact that I have stressed it."

97. As regards the significance to the applicant's case of his insistence that the levy and brokerage should be paid, we think that the judge was justified in dealing with this evidence in the context of the other evidence which indicated that the applicant had conducted the listing meetings perfectly properly throughout. We are of the opinion that this passage, which follows immediately after the passage which has been criticised, was helpful to the jury and fair to the applicant:

"In regard to both counts, you will remember the evidence stressed by Mr. LLOYD-ELEY that the defendant was not observed to have behaved improperly at the listing meetings themselves. Consider that point made by the defence. At the same time do not misunderstand the prosecution's case. The prosecution does not say that the defendant deserved, earned, or was entitled to any reward. It says, on each count, that he believed that he would get a reward, that he made an approach for one, and that he accepted it. And it also mares the obvious point that it was not at any listing meeting that he made any approach for any allotment of shares for himself."

98. We would mention that after careful consideration of all the points made by Mr. Scrivener in his helpful and able submissions, taken singly and together, we have not been persuaded that the judge failed to put any aspect of defence case adequately to the jury or that either conviction was unsafe or unsatisfactory.

99. We reached the conclusion that the summing up as a whole was full, accurate, helpful to the jury - and fair to the applicant.

100. For all the reasons given above we refused the application for leave to appeal against the convictions on both Counts.

101. On the question of sentence, the most substantial point raised on behalf of the applicant was, we think, that the totality of the sentences of 4 years imposed by the judge was manifestly excessive in all the circumstances of the case.

102. It is also said that the judge erred in principle "in using the maximum prison term of 7 years as the starting point in his determination of the sentence'' and that he failed to give proper or adequate consideration to those facts:

103. Mr. Scrivener emphasised that this case was quite different from the case of, say, a police officer or other public official not doing his duty and here there was no element of pressure, threat or blackmail. The listings had already been approved when the shares were solicited.

104. It has also been contended that it appeared that the judge had sentenced the applicant so severely, more because of the position he occupied, than on account of his acts and omissions. The judge, it is said, had also failed to give adequate consideration to a number of mitigating factors including, the applicant's clear record, his age (64), and his past record of public and community service. Complaint is also made about the other orders made by the judge relating to costs and the payment of money to the Government, having regard to the severity of the sentences.

105. After an eloquent speech in mitigation by counsel for the defence, this is what the judge said (at pp.2437-9):

"         LI Fook-shiu, I regard the offences of which you have been convicted as very serious ones, but they are serious offences committed in circumstances which are attended by considerable elements of mitigation. That the offences are serious is perhaps obvious because it involves corruption. What makes it worse, corruption in the high place because the place which you occupied was high indeed.

The elements of mitigation are also considerable. Of that I have been convinced by the speech so ably made on your behalf by your counsel. Powerful as those elements of mitigation are, however, they do not remove the seriousness of your offences in its entirety. It appears to me, I say this at once, that custodial terms are unavoidable. The length of those terms is a matter of anxious consideration.

The offences were committed about a year apart. In those circumstances it seems to me that the sentences must be consecutive, but they must be scaled down in order that your total punishment be not excessive.

There is a difference between the two counts in terms of the number of shares involved and the value of those shares, but it seems to me that no distinction should be drawn between them and I should not regard the Cathay count as more serious simply by reason of the fact that you got more Cathay shares than Novel shares, and that the Cathay shares were being sold at a higher price than Novel shares. I will not regard the Cathay charges as more serious than the Novel one.

It has been said rightly, I am sure, that you are a very wealthy man and have long been a very wealthy man by any standards, That being so, you have even less excuse than a poor man for doing what you did. At the same time, your fall is greater because it is a fall from a greater height, and therefore I lay aside the question of your wealth in considering your sentence.

The elements of mitigation are, as I have said, considerable. Any defendant who has not been before the courts before has not been convicted before, is entitled to describe himself as a man of good character. Your counsel has accurately described you as a man of excellent character. You have performed valuable public service, and I do not forget for one minute how very generously you responded when your church Called upon you for your time, your services and donations, You donated millions. That must stand you in good stead today.

Your age must be taken into account. Whether your advanced years are to be taken into account as a matter of mitigation, merely as a matter of mercy, makes no difference. It must be taken into account in reduction of the sentence which you would other wise receive.

I also take into account the fact that you did not participate in the listing of any company which should not have been listed. Your crime lay in accepting a reward for what you did. It does not consist in what you actually did because it is not suggested that those listings should not have gone through.

There are other elements of mitigation urged on your behalf. I have just heard them as we all have, I do not propose to recite them.

Now the offences of which you have been convicted are very serious indeed. A conviction on the indictment, each one of them, carries a penalty of 7 years' imprisonment and I have already said that your sentences ought to be consecutive although scaled down.

If one was to look simply at the position which you occupied, one would really be thinking of sentences almost as heavy as the maximum allowed, but as I have said, there are many elements of mitigation, some pertaining to you yourself, some pertaining to the offences themselves."

106. We have set out all that the judge said to demonstrate the anxious care that he took to impose the appropriate sentences and how cogent and balanced were his reasons. And, it must be said, the transcript shows that the strictures against the judge contained in the notice of appeal are wholly unjustified. The sentences were undoubtedly severe but even when the monetary penalties are taken into account, we felt unable to interfere. We would mention that it seems to be mandatory under s.12(1) of the Ordinance for the sentencing court to order the payment of at least part of the value of the advantage received, and, although no doubt the costs will be enormous, the order to pay the costs of the prosecution was not opposed.

107. It was for these reasons that we refused the application for leave to appeal against sentence.

Representation:

Mr. Anthony Scrivener, Q.C. and Mr. Johnny Mok (John Ku & Co.) for the Applicant

Mr. Michael Kalisher, Q.C., Mr. A.E. Schapel and Ms. Mary Siu (Crown Prosecutor) for the Crown