HKSAR v. Chin Kin Ming and Another

CACC000540/1999

CACC 540/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 540 OF 1999

(ON APPEAL FROM DCCC 463/1999)

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Coram: Hon Stuart-Moore Ag CJHC, Mayo VP and Seagroatt J in Court

Date of Hearing: 28 November 2000

Date of Judgment: 28 November 2000

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. A1 and A2 were jointly charged with a conspiracy to cheat at gambling contrary to Common Law and to s 16(1)(a) of Gambling Ordinance, Cap. 148. This was the first count. The charge read:

"1st Charge (against D1 & D2)

Particulars of Offence

CHIN Kin-ming and YEUNG Denise, on divers days between the 2nd day of November 1995 and the 27th day of January 1996, in Hong Kong and elsewhere, conspired together and with CHAN Moon-shing and other persons unknown to win money from the Royal Hong Kong Jockey Club for the said CHAN Moon-shing and persons unknown, in connection with the placing of bets with the said Royal Hong Kong Jockey Club on the outcome of a horse race, namely Race 263 which took place at the Shatin Racecourse in Hong Kong on the 27th day of January 1996 by fraud or false practice to dishonestly influence the outcome of the said race."

2. A2 was the girlfriend of A1 who was an apprentice jockey. They were also charged in the alternative with three counts of conspiracy being charges 2, 3 and 4 to commit an offence under the Prevention of Bribery Ordinance, Cap. 201. These charges are in a similar form save that the principal referred to in the charges is different. As an example, counts 2 and 4 read:

"2nd Charge (against D1 & D2)
(1st alternative to Charge 1)

Statement of Offence

Conspiracy for a public servant to accept an advantage, contrary to Common Law and section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201.

Particulars of Offence

CHIN Kin-ming being a public servant, namely an apprentice jockey employed by the Royal Hong Kong Jockey Club, and YEUNG Denise, on divers days between the 2nd day of November 1995 and the 27th day of January 1996, in Hong Kong and elsewhere, conspired together and with CHAN Moon-shing and other persons unknown, for the said CHIN Kin-ming to accept, without lawful authority or reasonable excuse, an advantage, namely a gift, fee, reward or commission consisting of $300,000.00 Hong Kong currency from the said CHAN Moon-shing and other persons unknown as an inducement to or reward for or otherwise on account of the said CHIN Kin-ming's performing an act in his capacity as a public servant, namely as a rider in horse race no. 263, held at the Shatin Racecourse on the 27th day of January 1996, using his best endeavours to fraudulently influence the outcome of the said race.

4th Charge (against D1 & D2)
(3rd alternative to Charge 1)

Statement of Offence

Conspiracy for an agent to accept an advantage, contrary to Common Law and section 9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

Particulars of Offence

CHIN Kin-ming, being an agent, namely an apprentice jockey employed by or acting for Ivan William ALLAN, and YEUNG Denise, on divers days between the 2nd day of November 1995 and the 27th day of January 1996, in Hong Kong and elsewhere, conspired together and with CHAN Moon-shing and other persons unknown, for the said CHIN Kin-ming to accept, without lawful authority or reasonable excuse, an advantage, namely a gift, fee, reward or commission consisting of $300,000.00 Hong Kong currency from the said CHAN Moon-shing and other persons unknown as an inducement to or reward for or otherwise on account of his doing an act in relation to his principal's affairs or business, namely as a rider in horse race no.263 held at the Shatin Racecourse on the 27th day of January 1996, using his best endeavours to fraudulently influence the outcome of the said race."

3. The man Mr Ivan Allan referred to in the second line of count 4 is the trainer A1 was attached to as an apprentice jockey.

4. The reason for these charges being framed in the alternative was uncertainty in the law at the time of the trial in the District Court before H.H. Judge Line.

5. At the time of the trial the case of HKSAR v NG Siu-chau [2000] 2 HKLRD 239 CFA had recently been decided by the Court of Appeal. The case had involved apprentice jockeys and the main issue was whether the apprentice jockeys were employees of the Jockey Club and thus public servants. The Court of Appeal had held by a majority that they were public servants. H.H. Judge Line had proceeded upon the basis this had been the law applicable at the time of the trial in this case. Subsequent to this the Court of Final Appeal had allowed the appeal and held that apprentice jockeys were not employees of the Jockey Club and therefore not public servants.

6. One of the matters which is clear on this appeal is that any conviction based upon A1 being an employee of the Jockey Club cannot be sustained. The respondent however contends that by virtue of s 83A of the Criminal Procedural Ordinance, Cap. 221 it is open to this court to substitute a conviction based upon A1 being an agent of his trainer Mr Allan.

7. A1 was also charged with another conspiracy to cheat. This was charge 5:

"5th Charge (against D1 only)

Statement of Offence

Conspiracy to cheat at gambling, contrary to Common Law and section 16(1)(a) of the Gambling Ordinance, Cap. 148.

Particulars of Offence

CHIN Kin-ming, between the 29th day and the 30th day of March 1996, in Hong Kong, conspired with YEUNG Denise, CHOI Chun-wai, KWOK Ting, CHAN Ka-chun, WONG Yeuk-shun, HO Wah-lun, YIM Hin-keung, TAM Shu-man, SO Kam-man, CHEUNG Hok-kan, CHAN Chun-fai and KONG Pik-wai to win money from the Royal Hong Kong Jockey Club for the said CHIN Kin-ming and persons unknown, in connection with the placing of bets with the said Royal Hong Kong Jockey Club on the outcome of a horse race, namely Race 389 which took place at the Shatin Racecourse in Hong Kong on the 30th day of March 1996 by fraud or false practice to dishonestly influence the outcome of the said race."

8. Arising out of the same incident A1 was charged with bribery offences which related to payments allegedly made to fellow apprentice jockeys. Again these were framed in the alternative so as to meet the possibility that the various apprentice jockeys may not be public servants. These charges were 6, 9, 12 and 15 and the alternative charges were 7 and 8, 10 and 11, 13 and 14, and 16 and 17.

9. Charge 6 was in this form:

"6th Charge (against D1 only)

Statement of Offence

Offering an advantage to a public servant, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

Particulars of Offence

CHIN Kin-ming, between the 29th day and the 30th day of March 1996, in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely a gift, fee, reward or commission consisting of $100,000.00 Hong Kong currency to KWOK Ting, a public servant, namely an apprentice jockey employed by the Royal Hong Kong Jockey Club, as an inducement to or reward for, or otherwise on account of his performing an act in his capacity as a public servant, namely riding his horse Fit For Royalty in Race 389 held at the Shatin Racecourse on the 30th day of March 1996 in such a manner as to ensure that it did not complete the race in either the first, second or third position."

and charge 8 the relevant alternative charge based on employment with the trainer was in these terms:

"8th Charge (against D1 only)
(2nd alternative to Charge 6)

Statement of Offence

Offering an advantage to an agent, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap. 201.

Particulars of Offence

CHIN Kin-ming, between the 29th day and the 30th day of March 1996, in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely a gift, fee, reward or commission consisting of $100,000.00 Hong Kong currency to KWOK Ting, an agent, namely an apprentice jockey employed by or acting for Neville BEGG, as an inducement to or reward for or otherwise on account of his doing an act in relation to his principal's affairs or business, namely riding his horse Fit For Royalty in Race 389 held at the Shatin Racecourse on the 30th day of March 1996 in such a manner as to ensure that it did not complete the race in either the first, second or third position."

10. There was a further charge in the alternative being charge 18 that A1 had offered an advantage to one of his fellow apprentice jockeys on a date unknown between 1 April and 31 December 1996 and finally both applicants were charged in the alternative with offering an advantage to one of the apprentice jockeys on 30 March 1996 race.

11. At the conclusion of the trial the Judge convicted A1 on charges 1, 5, 6, 9, 12, 15, 18 and 21 and A2 on charges 1 and 21. As can be seen this was on the basis of apprentice jockeys being considered as being public servants. Both applicants were sentenced to 2 years 9 months imprisonment on charge 1. A1 was sentenced to a similar sentence on charge 5 but 2 years of the sentence was ordered to be served concurrently with the sentence on charge 1. A1 was sentenced to 2 1/2 years imprisonment on all the remaining charges but all of the sentences were ordered to be served concurrently with the sentence on charge 5. This gave a total sentence for 3 1/2 years imprisonment. A2 was sentenced to 21 months imprisonment on charge 21 which was ordered to be served concurrently with the sentence imposed on charge 1. Both applicants seek leave to appeal against their convictions and sentences.

12. At the trial the prosecution placed reliance upon a cautioned statement made by A1. This statement was a detailed mixed statement which was video-taped. Issue was taken on the admissibility of this statement as evidence and a substantial part of the grounds of appeal relate to this.

13. There was also evidence of Mr Chan, PW10 who is referred to in charge 1 which related to charges 1 to 4. He gave evidence of meeting A2 and of her introducing him to A1. He referred to discussions when it was agreed that PW10 would on behalf of his associates in Shenzen make payment of $300,000 which would be used to make payments to apprentice jockeys so as to fix the race on 27 January 1996. Part of the arrangement was that A1 would be permitted to win the race.

14. The moneys were paid into an account in A2's name shortly before the race. However the horses did not finish according to the arrangements allegedly made. A1 claimed that his horse had stumbled at the start and had been unable to make up sufficient ground after this.

15. A representative came from PW10's associates in Shenzen and after heated discussions A2 agreed to return to them the $300,000 and it was returned to PW10.

16. PWs 8,12 and 13 gave evidence of receiving an approach from A1 to fix the 30 March 1996 race. There was evidence that apprentice jockeys PW11 and PW13 received money not to place the horses they were riding. One of the apprentice jockeys PW12 declined to accept any payment. He was however pressed to receive a payment to secure his silence and this was the subject matter of charges 21 to 23 upon which both applicants were convicted.

17. A1 did not give evidence on the special issue at the trial nor did he give evidence on the general issue. Having ruled the statement admissible the Judge accepted the inculpatory parts of it. He also accepted the truth of the witnesses who gave evidence notwithstanding its obvious dangers. The Judge carefully analysed all the relevant evidence and found the charges to have been proven at the appropriate level. He also observed that insofar as the alternative charges were concerned he would have been satisfied on the evidence before him that the apprentice jockeys were agents as required of their respective trainers.

18. The 1st and 2nd perfected grounds of appeal can conveniently be dealt with together:

"1. The learned Judge found in relation to the interviewing of the 1st applicant that

'the ICAC officers would have preferred that no lawyer be present' (p.23)

and that there was

'a reluctance to admit to the attitude in some of the ICAC witnesses' (p.24)

but that it was

'a huge jump from that to countenancing the suggestion that they denied D1's repeated entreaties to speak to a lawyer' (p.24).

Furthermore, he found that in the morning following his arrest the appellant was not allowed to make a telephone call (p.24), but that it was

'a huge leap from this act by the officer in charge of the case PW4 (or his brothers in control) to countenancing the suggestion that PWs 2 and 3 refused D1 a lawyer the night before' (p.24).

In addition, he found that Exh. 32, which arose out of an allegation of inducement,

'provided some obvious support for the defence case which was being put' (p.21).

These and such other findings as the learned Judge was prepared to make clearly impinged on the credibility of the interviewing officers and the voluntariness of the 1st applicant's record of interview. Accordingly, the learned Judge erred in ruling Exh. 1 to be voluntary and admissible.

2. Alternatively, Exh. 1 should have been excluded in the exercise of the learned Judge's discretion in as much as there were clear breaches of the Rules and Directions for the Questioning of Suspects and the Taking of Statements issued by the Secretary for Security (p.25-26)."

19. Mr Macrae SC for the applicants submitted that while it was true that A1 did not give evidence on the special issue it was still necessary for the Judge to be satisfied at the appropriate level that the statement had indeed been free and voluntary. He pointed to a number of aspects of the case which were indicative of non-compliance with the Rules and Directions for the Questioning of Suspects and the Taking of Statements. Amongst the matters he referred to was the suggestion that A1 had not been permitted to have access to a lawyer.

20. It is perhaps significant to observe that when PW5, the officer who informed A1 of his rights gave his evidence it was never put to him that A1 had drawn his attention to the fact that his request to speak to a lawyer had been denied. It might reasonably be expected if A1 had been denied this right he would have informed PW5 of this fact.

21. He also referred to the fact that PW2 and PW3 had clearly had in their possession a folder concerning PW10 which included a photograph of him and that this supported the case which was being put to PW2 and PW3 that they had informed A1 that PW10 was the main target and they were seeking assistance from A1 in this connection.

22. It appears from p. 4 of the reasons for verdict that the Judge was fully alive to the possibility that some form of inducement might have been offered to A1. However he dismissed this for what appeared to be valid reasons. Perhaps most important the officers would have been well aware that if some offer had been made to A1 there was every possibility that he might refer to this in the interview which was being taped and in this event the integrity of the whole process might well then have been called in question.

23. What is of most importance however is the fact that the only direct evidence that the Judge had before him was the evidence of the relevant officers. A1 as was his undoubted right, chose not to go into the witness box and gave his version of what transpired. All that was left were suggestions of the improprieties which were put to the officers. The Judge appears to have accepted the officers as truthful and reliable witnesses and that being the case it was open to him to conclude that the evidence was "all one way".

24. Another important point to bear in mind is that the Judge had the considerable advantage of seeing the video tape of the interview in question. His view of the matter appears to have been reinforced by this.

25. The main allegation relating to non-compliance with the Rules and Directions for the Questioning of Suspects and the Taking of Statements was that as A1 had made a full confession at an investigation which had been conducted by the Jockey Club it must have been the case that the prosecution would have been in possession of sufficient evidence to enable them to lay charges against A1. This being the case the officers should not have further interviewed him. It was also suggested that at an early stage A1 should have been informed that it was likely he would be prosecuted. The Judge dealt with these matters at p. 5 of his reasons for verdict:

"I am not going to rehearse all the points that were made which went to the credibility of the ICAC officers, having indicated my views on the bull points. I had well in mind those matters canvassed by Mr Lloyd. Having considered it all I was sure that the officers told me the truth about the condition of the defendant and his willingness to be interviewed and speak voluntarily and to do so without a lawyer or other outside contact. A final point worthy of mention is that the defence cross examined in the fact that D1 had made a very similar if not identical confession to Jockey Club investigators. Of course no reliance could be placed on those earlier admissions as admissions, but the fact that D1 had already revealed to the authorities an amount of what he had done went to explain why it was he was willing to reveal it again to the ICAC without a lawyer.

A point was taken on the Rules and Directions for the Questioning of Suspects and the Taking of Statements. It was argued that there was a breach of principle (d) as the ICAC officers had sufficient evidence to charge D1 before the interview but did not (and if they had charged the defendant then Rule III would have limited the scope for questioning). It was further argued that even if it was alright to delay the charge D1 should have been told that he was liable to be prosecuted.

As to the second limb of the argument, the case of R v. Collier and Stenning [1965] 1 WLR 1470 disposes of it as it was there held on identically worded Judges Rules that the words 'or informed that he may be prosecuted' covered the case where proceedings by way of summons were contemplated.

As to the first limb the ICAC had evidence of what D1 had confessed to Jockey Club investigators and they knew that others arrested on the same day were willing to give evidence implicating D1. However, the evidence was that they had reservations about the admissibility of the Jockey Club confessions. I had no reason to doubt that, especially given the voire dire industry in the Hong Kong courts. It was also the case that the arrested persons willing to implicate D1 had yet to make witness statements. In these circumstances I judged that there was not sufficient evidence requiring D1 to be charged before being interviewed.

As to the delay up to interview from arrest or within the interview following initial admissions I found there to be no breach of principle (d). The rule does not require a charge 'forthwith', it merely prohibits delay. The consideration of whether there was delay requires one to look at all the circumstances and to consider what was reasonable in those circumstances. R v. Collier and Stenning shows how the Court of Appeal in England and Wales, applying principle (d) to the particular facts, posed the question in terms of whether the police should, acting reasonably, have forthwith preferred a charge.

In my judgment it was not unreasonable for the ICAC to conduct the interview in the way they did with the information that they had. It would be flying in the face of common sense to interpret the principle to exclude sensible and proper interviewing. Of course any delay after the interviews in charging may have been a breach of the principle but it would have been a breach having no bearing on the evidence in this case. If I am wrong in the conclusion that there was no delay on the day of the interviews and there was a breach of principle (d) then, given the same considerations I have just discussed, I would not have viewed the breach to be such as to justify the exclusion of the video taped interview."

26. On the basis of the evidence which was accepted by the Judge there is no reason to conclude that there was any breach of the rules. The Judge's analysis of the position cannot be faulted.

27. Neither of these grounds has any merit and they are dismissed.

28. Ground 3 is as follows:

"Charges 6, 9, 12, 15, 18, 21 ('Offering an advantage to a public servant')

3. The learned Judge erred in law in finding that the apprentice jockeys cited in each charge were employed by the Royal Hong Kong Jockey Club and were thereby 'public servants' within the meaning of S.4 Prevention of Bribery Ordinance, Cap.201: see NG Siu-chau v. HKSAR FACC No.2 of 1999."

29. The starting point here is that the respondent accepts that the convictions based upon apprentice jockeys being "public servants" cannot be sustained. What has to be considered is whether it is open to us to substitute verdicts on the alternative charges. It is clear there is power for this by virtue of s 83 of the District Court Ordinance, Cap. 336 and s 83A of the Criminal Procedural Ordinance, Cap. 221.

30. What we are concerned with is the second alternative namely whether the apprentice jockeys were agents for the trainers they were attached to.

31. While it is true that the Court of Final Appeal simply held in Ng Siu-chau that apprentice jockeys were not employees of the Jockey Club they made no decision as to who if anyone they were employees of.

32. As was pointed out by the Judge there were before him exhibited the Indenture Agreements under which the apprentice jockeys performed their services. It was clear from these agreements that they were made between the apprentice jockeys and their parents on the one part and the relevant trainer of the other part. The Jockey Club was not a party to the agreement. It was also clear that under these agreements the apprentice jockeys were required to perform various functions which were in the nature of employment. To be thoroughly old fashioned clearly a master and servant relationship is established. Over and above this A1 did in his cautioned statement make reference to various duties he performed.

33. All of this is consistent with employment such as to bring the apprentice jockey's relationship with their trainers within the definition in s 2 of the Prevention of Bribery Ordinance, Cap. 201.

34. The consequence of this is that we are able to substitute convictions on charges 6, 9, 12, 15, 18 and 21 for convictions on charges 8, 11, 14, 17, 20 and 23. This we do.

35. Ground 4 is as follows:

"Charge 1 ('Conspiracy to cheat at gambling')

4. There was a compelling and competing inference derived from the evidence that neither applicant intended to cheat at gambling in relation to Race 263 on 27th January 1996, in which case there could be no conspiracy as charged. In particular,

(i) the said race was not in fact fixed;

(ii) both Choi (PW11) and Yim (PW12) denied involvement in, or knowledge of, the fixing of the said race;

(iii) Chan (PW10) and the backers evidently believed they had been tricked by the applicants;

(iv) $300,000 paid into the 2nd applicant's account on 26th January 1996 was still in the account on February 12th 1996.

Given that there was such an inference which arose from the evidence, the learned Judge's reasons for rejecting it (p.28-30) were unwarranted, speculative and unfair. In particular,

(a) the learned Judge's speculation as to 'why it may not have been necessary to approach (PW12)' (p.28) or how PW11's mount might have been impeded by horses on either side of PW11 (p.28) was fanciful, not derived from evidence, and could not weaken the obvious inference that the race was never intended to be, and was not in fact, fixed;

(b) although the learned Judge said he 'trusted' PW11 (p.27), he postulated that 'it may have been the case that (PW11) simply was not telling the truth in this regard' (p.28) and that 'such a lie by (PW11) was a possibility.' Such a speculative possibility did not, and could not, upset or cause to be rejected an otherwise proper and compelling inference."

36. Although dealt with in a slightly different manner all of the matters referred to were canvassed before the Judge. It may be helpful to see how he dealt with them in his reasons for verdict on p. 8 onwards:

"Let me consider each in turn.

The first point can depend upon how many jockeys have to be squared to fix a race. Obviously it is easier if all are in on it though this will cost more and increase the risk of a leak. The evidence from the annual record exhibit 27 shows that Yim's horse was the second favourite. Dl's mount being the favourite. If other riders had been squared to keep out of the first three then one can see why it may not have been necessary to approach Yim. The fixers could count on him being in the first three as others were hanging back and he had a good horse. Choi's horse had odds that put it in the middle order of this fourteen horse race. It was thus more likely that he would have been approached if the race was to be fixed, though fixing could take the form of having others, say those drawn either side of Choi's mount, impeding him. It is possible to pose a reasonable scenario that explained why Choi denied being paid to cheat in respect of this race. It may have been the case that Choi simply was not telling the truth in this regard. I can see how that temptation may have arisen if he was dealt with without the ICAC knowing about this early race (he was arrested before Chan) and there being no subsequent evidence to show that he was involved. The fact that such a lie by Choi was a possibility in this case did not make me doubt his evidence about the race which was fixed with his help.

The second point about Chan and the backers being suspicious of trickery is simply dealt with as people who engage in such criminal activity as this must always suspect trickery as there is always an opportunity for it and there is a lack of legal redress if resort is made to it. The evidence was that they did in fact accept the explanation put forward by D1 to the effect that his horse, the clear favourite, slipped at the start. They watched the race on television. Their suspicions, which were never more than that, were quieted by the evidence.

The fact that the $300,000 had not been distributed by the 12th February 1996 was only an indication of a lack of fixing if the agreement with the other apprentices was that payment be made to them before the race was run or that it would still be paid if the fix failed. There was no evidence to suggest that either of these matters had been agreed so and there was no reason to infer it. The fact that D1 wanted the money paid to him or D2 before that race did not mean that it must have been so. Chan did tell me that D1 said the purpose of the money was to pay the other jockeys in the race and that D1 said they had been paid, but this was said later on at a time after the race. The point also depended on the assumption that the defendants between them had no other funds to pay the apprentices and were bound to use the funds sent to D2's account.

Finally, the lack of evidence of the fixing of race 263 from the stewards and the fact that the other horses were not placed is explicable in terms of the fix not coming off as it went wrong from the outset of the race when the horse fixed to win stumbled such that it could never make up the ground. Why should a rider risk the eye of the stewards once the enterprise was foundering? It should also be remembered that races could be fixed without the stewards being alerted sufficiently that they called for an enquiry.

I was sure that there was no trick as suggested. Having disposed of the suggestions of one as I have indicated the evidence left was all one way and there was no reason not to attribute to the defendants the normal consequences of doing and saying what they did. Chan told me what that was and I had no doubt that there was an agreement to fix the race and that the parties intended that it should happen. The fact that D1 and D2 went back to the Mainland the day after the race to explain to the backers what had happened was some indication of a failed common enterprise as most conmen do not risk putting themselves into the hands of their victims without really good reason, especially when those victims were monied, criminally minded men with the appearance of power and an ever present escort of five fit young men. It should also be remembered that the defendants and Chan were friends. They cannot have been unaware of Chan's constant betting on horse races and must have realised that he would put his shirt on a fixed race. The defendants had no previous convictions (save a motoring matter for D2). I judged that they would be much the slower to cheat a friend than the Jockey Club."

37. What is very clear is that the Judge carefully considered all of the evidence as a whole.

38. It needs to be borne in mind that it is peculiarly within the province of the Judge's duties to weigh and consider evidence and determine as a jury would whether it is right to draw inferences from the evidence which is available. It is also necessary to bear in mind the fact that the applicants did not give evidence which may contradict or call in question the prosecution evidence.

39. It has not been demonstrated that the Judge failed to consider any relevant matter or could be criticised for the conclusions he reached. In short we are not justified in interfering in any way with his decision in this case. This ground must also fail.

40. Ground 5 is as follows:

"Charge 21 ('Offering an advantage to a public servant')

5. The only evidence in relation to the 2nd applicant came from an unsupported accomplice, PW12, whose evidence was inconsistent, unclear and unreliable and of whose 'exact words' the learned Judge could not be sure (p.32). Accordingly, there was insufficient probative evidence to establish the particulars of the charge against the 2nd applicant."

41. The Judge did earlier in his reasons for verdict warn himself of the dangers of accepting the evidence of accomplices. Mindful of this he accepted the truth of PW12's evidence and was satisfied at the appropriate level of A2's involvement in the subject matter of the charge. There is no merit in this ground.

42. The application is allowed. Treating it as the appeal it is successful to the extent that the convictions on charges 6, 9, 12, 15, 18 and 21 are quashed. However pursuant to s 83A(2) convictions on charges 8, 11, 14, 17, 20 and 23 are substituted for them. Otherwise the appeal is dismissed.

Sentence

43. It is correct that it is necessary to reconsider the question of sentence in relation to the substituted charges where there are now convictions. It needs to be said that the original sentences imposed were in no way manifestly excessive or wrong in principle. We also reject the suggestion that the total sentences imposed on the two applicants were disparate. We can see no reason to impose a different sentence on the substituted charges. This case of itself demonstrated how similar s 4 and s 9 offences can be. Accordingly we impose similar sentences on the substituted charges. In every other respect the application is dismissed.

44. This means that the sentences now imposed are as follows.

Charge 1
A1 A2		2 years 9 months imprisonment.
Charge 5
A1		2 years 9 months imprisonment.
		2 years of which are to be served concurrently with the sentence on charge 1.
Charge 8
A1		2 1/2 years concurrent with sentence on charge 5
Charge 11		2 1/2 years concurrent with sentence on charge 5
Charge 14		2 1/2 years concurrent with sentence on charge 5
Charge 17		2 1/2 years concurrent with sentence on charge 5
Charge 20		2 1/2 years concurrent with sentence on charge 5
Charge 23
A1 A2		21 months imprisonment to be served concurrently with other sentences.

45. The total sentences of 3 1/2 years imprisonment for A1 and 2 years 9 months imprisonment for A2 remain the same.

Representation:

Mr John Reading, SC, DDPP & Mr Joseph To, SGC of the Department of Justice, for the respondent

Mr Andrew Macrae, SC, instructed by Messrs Yuen & Partners for the applicants