HKSAR v. Chan Kam Keung and Another

CACC 440 /2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 440 OF 2006

(ON APPEAL FROM DCCC 1194 of 2005)

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BETWEEN

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Before: Hon Cheung JA, Yeung JA and McMahon J in Court

Date of Hearing:   4 March 2008

Date of Judgment:  4 March 2008

Date of Reasons for Judgment: 20 March 2008

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the reasons for judgment of the Court):

1.On 4 March 2008, we dismissed the applications for leave to appeal against conviction, but reduced the 2^nd applicant’s sentence by six months.  We indicated that we would hand down our reasons in due course and this we now do.

Introduction

2.The 1^st applicant, Chan Kam-keung and his wife, the 2^nd applicant, Yu Fong-wah, appeared before Deputy Judge Symon Wong (“the judge”) in the District Court on an indictment consisting of 24 charges of Fraud, contrary to s 16A of the Theft Ordinance.

3.The 1^st applicant faced all 24 charges whereas 6 of those charges, namely the 1^st – 4^th, the 8^th and the 24^th charges were directed also at the 2^nd applicant.

4.The applicants were convicted as charged and were sentenced to the respective terms of 4 years and 9 months, and 3 years’ imprisonment. They both sought leave to appeal against conviction. The 2^nd applicant also sought leave to appeal against sentence.

5.Mrs M Panesar appeared for the 1^st applicant on the instruction of Messrs Tsang, Chan & Woo, and Mr Kamlesh Sadhwani appeared for the 2^nd applicant on the instruction of Messrs Lo, Wong & Tsui only in relation to conviction as the 2^nd applicant acted in person in her application for leave to appeal against sentence.

6.Mr Man Tak-ho Jonathan, Senior Government Counsel, appeared for the respondent.

Background Facts

7.The 1^st applicant and 2^nd applicant were respectively the registered tenants of fruit stalls WW5 and W57 in the old Tai Po Market (“the old market”), managed by the Food and Environmental Hygiene Department (“FEHD”). The 2^nd applicant was also in control of another fruit stall W70, which was registered in the name of a friend, Miss Au Yeung So-mui.

8.Under the terms of the tenancy agreements with FEHD, those stalls could not be assigned and could only be used for the sale of fruits. The applicants and Miss Au Yang, as registered tenants, were allowed to appoint others to assist in the stalls and those assistants were loosely described as “agents”, “employees” or “assistants”.

9.In 2004, a new market was constructed in Tai Po to replace the old market and the registered tenants of the old market were given priority to be relocated to the new market. Subsequently, each of the applicants was allotted a stall in the new market.

Prosecution Case

10.The prosecution alleged against the applicants that they had falsely represented to the victims that they would be assigned the right to operate their stalls in the new market. Some of the victims were taken to FEHD to sign appointment forms, purportedly to enable them to operate the stalls in the new market as the applicants’ agents.

11.The 1^st applicant solicited and obtained from the victims about $1.2 million as deposits, transfer fees, decoration expenses and rental in advance as consideration for granting them the right to operate the stalls.

12.In respect of the charges against the 2^nd applicant involving a total of about $135,000, the prosecution alleged that the 1^st applicant obtained the money from some of the victims in the presence of the 2^nd applicant and that the money was then handed to her. The 2^nd applicant also took some of the victims to FEHD to execute appointment forms to appoint them as agents for the stall under her name.

13.When the new market opened, the victims were not able to operate the stalls in the new market, and the applicants had in fact sublet the only two stalls allocated to them to another person. Unbeknown to the victims, their status as agents was all cancelled shortly after their appointments.

The Prosecution evidence

14.The 1^st to 12^th charges concerned Mr Chung Wai-keung (“Chung”) and his ex-wife Madam Cheung Hau-lin (“Madam Cheung”). Chung and Madam Cheung detailed their dealings with the 1^st and/or 2^nd applicants. In particular, it was represented to them that the applicants would assign four stalls in the new market to them and/or their family members to sell vegetables, bean sprouts, fishes and newspapers.

15.Between August and December 2003, Chung and/or Madam Cheung, on 12 occasions, paid sums ranging from $20,000 to over $160,000 to the applicants as assignment fees, transfer fees, rental fees and decoration fees purportedly to enable Chung, Madam Cheung and their family members to operate four stalls in the new market. Those payments formed the subject matters of the 1^st to 12^th charges.

16.As far as the payments, the subject matters of the 1^st to 4^th and 8^th charges were concerned, it was the prosecution evidence that the 2^nd applicant was present when the payments were made and that she in fact pocketed the money. The 2^nd applicant also executed the appointment form, appointing Chung as the agent for stall W57.

17.According to Chung, the 1^st applicant issued receipts for some of the payments and had arranged for the execution of appointment forms, appointing him as the agent for stall WW5 and Madam Cheung as the agent for stall W 70.

18.At the end of 2003, the 1^st applicant tried to avoid Chung. Eventually, Chung was able to arrange a meeting with the 1^st applicant in the presence of his friend, Lee Wai-fai (“Lee”). Having prepared a brief statement (“P8”) summarising the payments he had made, Chung photocopied the statement together with the 1^st applicant’s ID card before they all signed on the photocopies. Chung and the 1^st applicant each kept a copy of P8.

19.The matter was not resolved and Chung found it necessary to report to the Police. When Chung found out that the applicants had been allocated two stalls in the new market, he tried to do some installation work to the stalls, but was stopped when the 2^nd applicant made a report to the police.

20.The 13^th to 16^th charges concerned four victims, who were relatives, namely Mr Chung Wai-kam (“Chung WK”), Mr Li Chi-man (“Li CM”), Mr Lee Kwok-wai (“Lee KW”) and Madam So Sze-mui (“Madam So”) [collectively referred to as the Chung family].

21.In October 2003, the 1^st applicant told the Chung family that he could assign one vegetable stall and two fruit stalls to them and as a result, on four occasions between October and December 2003, the Chung family paid sums ranging from $20,000 to $80,000 to the 1^st applicant as assignment fees, rental and decoration fees for the stalls.

22.On different occasions, the 1^st applicant took members of the Chung family to FEHD to execute appointment forms appointing them his agents in order to convince them that they would thereby be permitted to run the stalls in the new market.

23.The 17^th to 23^rd charges concerned two brothers, Mr Keung Chi-wai (“Keung CW”) and Mr Keung Pei-ho (“Keung PH”), whereas the 24^th charge concerned Madam Mak Chi-ho (“Madam Mak”).

24.The 1^st applicant told Keung CW that a fish stall belonging to an old lady would be assigned to him and Keung KW was appointed an agent of stall WW5 on 18 December 2003.

25.Between December 2003 and early 2004, the 1^st applicant, using different excuses and on 7 occasions asked for, and obtained payments ranging from $13,000 to over $120,000 as lucky money, assignment fees, rental and equipment installation charges from the Keung brothers (the subject matters of the 17^th to 23^rd charges).

26.The Keung brothers did not get any stall to sell fish when the new market opened in August 2004, and the 1^st applicant was nowhere to be found. They made a report to the ICAC. The Keung brothers produced a number of cheques issued by the 1^st applicant, purportedly as repayment for sums received by him, as evidence to support their allegations against the 1^st applicant.

27.At a meeting with both applicants on 21^st October 2003, Madam Mak was told that the old market would be demolished and the stalls would be moved to the new market, and Madam Mak was encouraged to take on the assignment of a stall to do business.

28.According to Madam Mak, the 2^nd applicant then took her to FEHD to execute an appointment form, appointing her the agent for stall W57. Madam Mak was asked to pay $35,000, which was bargained down to $20,000. Madam Mak then issued a cash cheque to give to the 1^st applicant who in turn passed it to the 2^nd applicant.

29.When the new market opened, Madam Mak was unable to find the 1^st applicant and the offence, the subject matter of the 24^th charge, came to light when the ICAC contacted her in 2004.

30.Stall WW5 had purportedly been assigned to Chung, Chung WK and Lee KW at different times by appointing them as agents before the new market opened. The 1^st applicant unilaterally cancelled those appointments. The appointments of Chung and Madam Cheung as agents for stalls W57 and W70 respectively were also cancelled by the 2^nd applicant and Miss Au Yeung without notifying Chung and Madam Cheung.

31.The 1^st applicant was arrested on 14 October 2005 upon his return from the Mainland. He was taken back to the ICAC where two video interviews took place. In the 2^nd interview, he provided writing samples for comparison purposes.

32.In the interview, the 1^st applicant admitted leasing stall WW5 to To Kwai-chuen (“To”) before 2003 and in March 2003. The 1^st applicant also admitted that whilst the stall was still being rented to To, he leased it to Chung for a total rental of $9,000 by appointing him as an agent. But Chung surrendered the stall back to him two months later due to poor business.

33.The 1^st applicant also admitted to have leased the same stall to Keung CW and Lee KW in October and November 2003 respectively. However, the 1^st applicant denied having issued the receipts in question.

34.The 1^st applicant challenged the admissibility of the records of interviews. He said an ICAC officer misled him by saying that if he returned to Hong Kong to clarify the situation, the 2^nd applicant would not be prosecuted and that before the interviews started, the ICAC officer persuaded him to plead guilty.

35.The 1^st applicant also alleged that he was denied access to food and/or to toilet although he said he had no appetite and could not remember if he was given any food. He also said he was not permitted to call the 2^nd applicant.

36.Giving evidence on behalf of the 1^st applicant in the voir dire, the 2^nd applicant said it was the ICAC officer who told her to pass a message to the 1^st applicant, resulting in his return from the Mainland.

37.The 2^nd applicant said she heard the ICAC officer telling the 1^st applicant that he should “think it over, then your wife will be all right”. The 2^nd applicant also said the 1^st applicant had told her that according to the ICAC officer, if he pleaded guilty, she would not be prosecuted.

38.The 2^nd applicant claimed in her five video interviews that stall W57 had all along been left vacant. She denied knowing any of the victims and she said she was not involved at all in any dealing with them. The admissibility of the 2^nd applicant’s records of interview was not challenged.

The Defence

39.The 1^st applicant denied that the records of interview were given freely. He said he returned to Hong Kong in order to clarify the 2^nd applicant’s position. Initially he did not want his family to know about his arrest, but he changed his mind and asked to contact the 2^nd applicant. However, his request was turned down until the interviews were completed.

40.It was the defence case that each and every of the victims lied against the applicants.

41.The 1^st applicant said he did not tell the victims that the stalls in the new market would be assigned to them to do business. The 1^st applicant said he did not collect the money from the victims in the circumstances as they had described nor did he promise to allow them to do business in his stalls. The 1^st applicants claimed that the receipts purportedly issued by him were forgeries, despite the evidence of the handwriting expert that he was the author of at least one of the receipts.

42.The 1^st applicant said Chung was in fact someone sent by his Mainland creditors to collect debts from him and in June 2002, he repaid $110,000 to his creditors through Chung. The 1^st applicant said that he signed the document (P8), which bore his ID card, in blank as proof that the debts had been repaid. The 1^st applicant said when he signed on D4, it only contained a copy of his identity card with no writing on it.

43.In support of such contention, the 1^st applicant produced a copy of an appointment letter (D4) purportedly given to him by Chung when he came to collect the debt on behalf of his creditors and some supporting documents (D3). D4 appeared to be a letter authorizing Chung to collect debts owed by the 1^st applicant to some Mainland creditors.

44.When D3 and D4 were produced, the prosecuting counsel asked for those documents to be released to the prosecution for investigation, as D4 appeared to have an alteration in that the name of the person originally appointed as the agent to collect the debts from the 1^st applicant had been obliterated and Chung’s name was substituted.

45.The judge, when acceding to the request, commented that “I think the prosecution, or the police, or the ICAC, should actually look into the matter and dig out who is responsible for coming up with this kind of document”, and “All I’m saying is how those documents had come about the motive of the persons who gave those documents to (the 1^st applicant’s counsel) should be look into further by the investigatory authority”.

46.The judge further added that he was not implying any impropriety, or that the documents were invented, but that he just wanted the prosecution or the ICAC to look further into it.

47.According to the 1^st applicant, in early March 2003, Chung indicated an interest in operating businesses in stalls WW5, W57 and W70, and agreed to pay $200,000. However, Chung only paid $30,000 and he was appointed an agent. The 1^st applicant said Chung actually operated stall WW5 for a few months before he returned all three stalls to him in May 2003 due to poor business.

48.However, in August 2003, Chung again expressed an interest to operate a stall and he was then appointed an agent to stall W57 on 26^th August 2003. The 1^st applicant claimed that thereafter he did not care about the stalls any more and did not know what happened to them.

49.The 1^st applicant said he did not receive any payment for the appointment of Madam Cheung as an agent for stall W70. He said Madam Cheung actually operated stall W70 and he and the 2^nd applicant then stopped to operate it afterward.

50.The 1^st applicant also claimed to have lent a lot of money to Chung near Chinese New Year in 2004.

51.According to the 1^st applicant, it was Chung who introduced the Chung family to him. The 1^st applicant admitted that he had allowed the Chung family to operate the three stalls, albeit just for $27,000. Chung WK was then appointed an agent for stall WW5 and he paid the 1^st applicant $22,000.

52.The 1^st applicant said he cancelled Chung’s appointment and substituted Lee KW as the agent for stall WW5 at Chung’s request and he also appointed Madam So as the agent for stall W70 in December 2003, and thereafter he was no longer concerned with how the stalls were run. However, Chung WK subsequently returned the 3 stalls to him, saying that business was poor.

53.The 1^st applicant said he agreed to appoint Keung CW as the agent for stall WW5 to sell fish, but he did not receive any benefit.

54.The 1^st applicant, in trying to explain the cheques given to the Keung brothers, claimed to have borrowed from Keung PH $100,000 to $200,000 and had given him the cheques to settle the debt. Later he obtained a further loan and wrote out a cheque for $311,600 as security for the repayment of the loans owed to Keung PH plus interest. The 1^st applicant said the cheques had nothing to do with any agreement to allow the Keung brothers to operate the stalls.

55.The 1^st applicant said he alone dealt with Madam Mak to appoint her as an agent of stall W57 for $20,000. The 1^st applicant admitted to have received and cashed the $20,000 cheque given by Madam Mak. However, he said the money was subsequently returned to Madam Mak’s ex-husband.

56.The 2^nd applicant claimed not to have any knowledge of the dealings between the 1^st applicant and the victims.

57.The 2^nd applicant said it was the 2^nd applicant who dealt with the financial matters of the three stalls although she did manage them. However, she stopped working altogether in early 2003 due to poor health.

58.The 2^nd applicant said she only met Chung in August 2003 and not in March and she did not receive money directly or indirectly from him.

59.The 2^nd applicant admitted to have met Chung on 26 August 2003 when she appointed him an agent for stall W57 under the 1^st applicant’s direction. However, the 2^nd applicant said she had no knowledge of any agreement to transfer any of the stalls to the victims.

The Judge’s Findings

60.The judge rejected the evidence of the 1^st applicant in its entirety, pointing out that his explanation for coming back to Hong Kong and for what he said during the video interviews were completely unconvincing.

61.The judge pointed out the inconsistencies when the 1^st applicant initially wrote down that he did not want to inform his family members about his detention and his subsequent claim that his request to call the 2^nd applicant was rejected. The judge further pointed out that during the interviews, the 1^st applicant did not say anything to exonerate the 2^nd applicant and therefore his assertion of trying to assist the 2^nd applicant could not be true.

62.On the issue of the admissibility of the 1^st applicant’s records of interview, the judge did not consider the 2^nd applicant’s evidence important.

63.The judge concluded that the 1^st applicant gave the interviews freely and voluntarily and he admitted the records of the interviews as evidence.

64.The judge, pointing out some of the “numerous contradictory evidence” of the 1^st applicant, completely rejected his evidence. In particular, the judge said the 1^st applicant’s defence that the matter was just a “tenancy dispute” unconvincing.

65.The judge also rejected the 2^nd applicant’s evidence, opining that it was just her attempt to distant herself from the allegations against her.

66.The judge accepted the evidence of the prosecution witnesses. Whilst accepting that there were discrepancies in the evidence of some the victims, the judge took the view that they were the result of lack of education and therefore the inability to express themselves with clarify, and the lapse of time.

67.The judge referred to the detailed evidence of each and every of the victims and concluded that they would not have fabricated all those details to wrong the applicants. The judge pointed out that the victims’ evidence was consistent with the bankers’ evidence showing that the victims had, on different occasions, withdrawn large sums in cash.

68.In considering the veracity of the victims’ evidence, the judge asked the following questions:

“	(a)	Why would (the victims) fabricate different stories to falsely accuse the (applicants)?
	(b)	Why would these stories span over a period of months, some of which are Overlapping?
	(c)	Why would the witnesses accuse (the 1st applicant) alone? Why would they accuse both (applicants) in some incidents?
	(d)	Why would they need to make up a large number of documentary exhibits such as the receipts? (the judge was mindful that some of the documents were drawn up by the witnesses, and some were written by the 1st applicant.)
	(e)	Why would the witnesses either alone or collectively conspire to make false accusations against the 1st applicant bearing in mind that some of them hardly know the (1st applicant)?
	(f)	In the case of Charge 24, why would Madam Mak falsely accuse both (applicants). She was not the one who took the initiative to contact the police or ICAC. Instead, it was the investigating officers from the ICAC who approached her.”

69.The judge concluded that the applicants had misled the victims by falsely representing to them that they would be given the right to operate stalls in the new markets in order to defraud them of large sums of money. The judge further found that the applicant had preyed upon the victims’ desire to make honest livings by operating stalls in the new market.

70.The judge also found that the 2^nd applicant not only was present at the various meetings when the 1^st applicant made false representations to the victims, but also had taken an active role in collecting money form the victims as well as their appointments and cancellations as agents of the stalls. The judge emphasized that both applicants had rented out their stalls in both the old market and the new market to To during the time when they committed the fraud against the victims.

71.The judge concluded that both applicants were acting dishonestly in defrauding the victims. He therefore convicted both applicants on all the charges against them.

Grounds of Appeal

72.Mrs Panesar, on behalf of the 1^st applicant puts forward a number of grounds. Mrs Panesar suggested that the judge was wrong to have accepted the records of interview and the handwriting specimens as evidence when he had failed to properly assess the impact and effect of the detention sheet and the investigation dairy, both of which were unused materials from the prosecution.

73.Mrs Panesar argued that the judge had failed to properly analyse the evidence of both applicants in determining the admissibility of the 1^st applicant’s records of interview and his handwriting specimens. She said there was prima facie evidence that the 1^st applicant was not permitted to go to the toilet until he provided the handwriting specimens.

74.Mrs Panesar suggested that D4 and the Government Chemist Report pertaining thereto did not support the judge’s view that D4 was obtained by unlawful or dishonest means and therefore the judge was wrong to have branded the 1^st applicant a dishonest witness because of it.

75.Mrs Panesar emphasized that the victims’ evidence contained major discrepancies and the judge was wrong to have relied on their evidence. In particular, Mrs Panesar suggested that the judge should not have posted the rhetorical question of why would the victims invent stories to frame up the applicant in determining the veracity of their evidence.

76.Mrs Panesar suggested that the judge had not treated the 1^st applicant or his defence fairly because he had reprimanded him during his evidence and ordered him to stand when the lengthy reasons for verdict were being delivered despite the 1^st applicant’s visible disability.

77.Mrs Panesar referred to a number of incidents in the course of the 1^st applicant’s evidence showing that the judge had reprimanded him for not answering questions directly, thereby wasting the court’s time and the “sarcastic tone” adopted by the judge in delivering the reasons for verdict.

78.Mrs Panesar also referred to the comments by the judge that “the defence should not put the prosecution to proof of everything”. Mrs Panesar suggested that those matters, cumulatively speaking, indicated that the judge had bias against the 1^st applicant and that: “justice had not been seen to be done”.

79.Mr Sadhwani, on behalf of the 2^nd applicant suggested that the judge was wrong to have relied on the evidence of Chung when he had criminal convictions and that his evidence was in conflict, not only with his own statements to the police, also with the evidence of Madam Cheung and Lee.

80.Mr Sadhwani pointed out that Chung said he obtained the money from Madam Cheung to pay the 1^st applicant outside the restaurant whereas Madam Cheung said it was outside the office. Chung also said he put the money into his pocket first before paying the 1^st applicant whereas Madam Cheung said Chung gave the money straight to the 1^st applicant.

81.Mr Sadhawani further pointed out Chung’s evidence was that Lee was present when he prepared P8, whereas Lee said when he arrived, the statement was already signed.

82.In so far as Charge 24 is concerned, Mr Sadhwani suggested that Madam Mak was not a truthful or reliable witness when her evidence differed from her statement in the following aspects:

“	1.	Madam Mak said in her statement that it was Ah King who introduced her to the applicants, yet in his evidence, she denied such suggestion or at least was evasive about it.
	2.	In her evidence in chief, Madam Mak said she did not asked the 1st applicant for a receipt as she trusted him, yet in her statement and in cross-examination, she said that she did ask the 1st applicant for a receipt.”

83.Mr Sadhwani suggested that the judge had failed to properly resolve the discrepancies in the evidence of Chung and Madam Mak, and in the circumstances, the convictions against the 2^nd applicant were unsafe and unsatisfactory.

Discussion

84.Mrs Panesar had painstakingly taken us through the record of proceedings with a view to demonstrate that the judge was biased against the 1^st applicant. In particular, Mrs Panesar relied on the following remarks made by the judge to the 1^st applicant in the course of his evidence:

“	1.	Would you listen to the questions and answer the questions directly,please. That way we can save a lot of time. And besides you need to give time to the learned interpreter to translate.
	2.	The defendant, D1, is not answering the questions. I’m thankful to the learned interpreter to put the question directly to him again earlier on. But I am directing you, D1, listen to the question, don’t waste my time.
	3.	I think it’s the right time for me to ask you again, Defendant, to listen to the questions carefully. And in fact, judging from you answers, you know precisely what you have been asked.
	4.	…Right, defendant, I have been listening very carefully to questions put to you by your own counsel and questions put to you by the prosecutor. I have been equally careful listening to your answers and also the way questions have been translated to you. My view is this. The questions, which have been put to you have been clear and they have been properly and accurately interpreted to you. I have, on a number of occasions, asked you to listen to the questions carefully. How many more times do you want me to remind you of this? Because it seems to me that you do understand the questions judging from your answers and I’m telling you I have been extremely patient. And I’m telling you again, perhaps for the last time, listen to the questions.
	5.	All right, yes, if you have something to add, why not? (in response to the suggestion that the 1st applicant should be allowed to finish his answer).”

85.In support of the allegation of bias, Mrs Panesar also referred to the judge’s comments when delivering his reasons for verdict that “the defence should not have put the prosecution to proof of everything” and the fact that the 1^st applicant was not allowed to sit during the delivery of the verdicts as indications of the judge’s bias against the 1^st applicant.

86.We had examined the written record of proceedings and had heard relevant parts of the taped version. However, we were not persuaded that the judge’s conduct was such that it would have caused an informed bystander listening to the case to say that the 1^st applicant had not had a fair trial. (See R v Yeung Mau-lam [1991] 2 HKLR 468)

87.The judge had, on a number of occasions, reminded the 1^st applicant to listen to the questions and answer the questions directly. On the face of it, the judge found it necessary to do so because the 1^st applicant was not a satisfactory witness.

88.It must be remembered that the judge had a duty to control the trial to ensure that it progressed smoothly and it was the judge’s duty to direct the 1^st applicant that he must make responsive answers.

89.Mrs Panesar did not suggest that the judge acted in an aggressive manner and it was not even suggested that the judge raised his voice.

90.A reminder to the 1^st applicant that he should answer the questions directly and not to waste time could hardly be said to be against his interest or unfair to him.

91.The judge’s comments that “the defence should not have put the prosecution to proof of everything” were not necessary. However, it had to be remembered that the case involved a large number of witnesses and voluminous documents.

92.Mrs Panesar admitted that the evidence relating to the tenancy of the stalls in both the old and the new markets and the procedure of appointing agents and the administration of the markets by FEHD, etc was not in dispute, yet witnesses were required to give evidence on those matters for more than a day.

93.The judge’s comments, albeitunnecessary, were understandable and did not support the suggestion that the trial was thereby rendered unfair.

94.In the light of the 1^st applicant’s disability, it was perhaps not charitable and even unkind not to allow him to be seated when the judge read out his reasons for verdict. The judge’s sarcastic comments about the 1^st applicant and/or his evidence were uncalled for and should have been avoided. However, on the facts of this case we agreed with Mr Man that these were not matters that would vitiate what was otherwise a proper verdict.

95.D4, on its face, appeared to have been forged, as conceded by Mrs Panesar. The prosecution had properly requested for and the judge had granted the request to have it examined. The forensic expert confirmed the suspicion that it had been tempered with. The document, so far as the trial was concerned, originated from the 1^st applicant and his explanation for it was far from satisfactory. The judge was justified in expressing concern about it. Indeed the judge had made his position clear by the following comments:

“I think the prosecution, or the police, or the ICAC, should actually look into the matter and dig out who is responsible for coming up with this kind of document..No, I’m not implying it is you, who is responsible for coming up with this kind of document. All I’m suggesting is how those documents had come about and the motive of the persons who gave those documents to you should be looked into further by the investigating authority..

If what I have been saying carries any implication, I would not have asked the prosecution or the ICAC to look further into it. So the statement I made – the statements I just made are very clear. As of this stage and in respect of those two documents, which you just produced, and more specifically I’m referring to D3 and D4, I’m not suggesting anyone to have invented those documents. I have no idea how they come about and I will be making my judgment purely based on these documents have been produced into this proceedings as defence exhibits and how this witness PW7, Mr Chung, has replied in relation to questions put to him in respect of these two documents,…”

96.In our view, the judgment’s comments were justified and certainly not an indication of any bias against the 1^st applicant as suggested by Mrs Panesar.

97.The 1^st applicant objected to the admissibility of the records of interview, which were hardly incriminating. Indeed the judge had relied very little, if at all on those records of interview to ground the conviction against the 1^st applicant.

98.The prosecution case against the applicants rested primarily on the veracity of the victims’ evidence, which, in our view, was forthcoming, strong and convincing.

99.Each of the victims gave detailed evidence of how they were misled by the applicants into paying them large sums of money, hoping to have the opportunities of making honest livings by operating the stalls in the new market.

100.As the judge quite rightly observed, there was no motive, not even a suggested one for any of the victims to lie to wrong the applicants.

101.Some of the witnesses, notably Chung, might not have been completely truthful and reliable in all of their evidence. Apart from the reasons identified by the judge, one must not ignore that on their allegations, the applicants had defrauded them of large sums of money. It requires little imagination to understand the impact of such loss to the victims. Chung might well have taken steps that he considered necessary to safeguard his interest and on those matter, he might not be willing to be completely forthcoming and that could have explained the shortcomings of some of his evidence.

102.However, these were matters for the judge to assess. There was no need for the judge to resolve every dispute of fact or every discrepancy in the evidence of the witness or the witnesses. It was almost impossible for the judge to do so in a case involving multiple charges and more than one defendant, particularly when the offences covered a long period of time and involved many witnesses.

103.The way in which a District Court judge should discharge his duty had been examined in a number of cases and we need only repeat what Blair-Kerr J said in the leading case of R v Robert Eli Low (1961) HKLR 13 at p 82,

“But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how “the mind of the jury” was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court would act with the greatest caution before interfering with the District Judge’s findings if, having regard to the whole of the evidence, such findings appear reasonable.”

104.We had examined the discrepancies identified but not vigorously argued by both Mrs Panesar and Mr Sadhwani, we were not persuaded those discrepancies were significant enough to cast doubt on the main allegations that each and every of the victims made against the applicants.

105.The judge was, in our view, perfectly entitled to accept the victims’ evidence that the applicants had defrauded them of the sums of money in the manner as they had described. The victims’ evidence was supported by undisputed or undisputable evidence.

106.The judge was also entitled to reject the applicants’ explanations. The 1^st applicant’s primarily suggestion that he was able to grant various victims at different time the right to run the stalls in return of large sums of money when those stalls had always been leased out to Mr To was simply unbelievable.

107.In our view, the evidence against the applicants on all the charges was overwhelming and they were properly convicted.

108.There was nothing unsafe or unsatisfactory about the convictions and the applications for leave to appeal against conviction by both applicants were dismissed.

Sentence

109.The offences in question are very serious indeed. The applicants preyed upon the desire of the victims, quite a number of them, we may add, to make honest livings and defrauded them of large sums of money over a long period of time.

110.The victims have not been and are unlikely to be compensated for their losses.

111.The applicants’ unscrupulous conduct must be deterred and to that extent, we were of the view that the sentence of 4 years and 9 months imposed on the 1^st applicant, bearing in mind the leading role he played in the perpetration of the crime, was probably too lenient.

112.The 2^nd applicant did not advance any reasons to support her application for leave to appeal against sentence, but just said, in her submission, that she was sorry and remorseful for what had happened.

113.However, it was clear that the 1^st applicant was the main culprit when he found it necessary to commit the offences because of his personal financial difficulties.

114.Whilst the 2^nd applicant took part in some of the offences, the role she played was obviously a passive one. She was clearly under the influence of the 1^st applicant and she committed the offences probably due to her misguided loyalty , as a wife, to the 1^st applicant.

115.One must not ignore that the 6 charges against the 2^nd applicant only involved $135,000, about 10% of the amount involved in the 24 charges against the 1^st applicant. Looking at the matter from such a perspective and comparing with the 1^st applicant’s sentence, the 3 years’ sentence on the 2^nd applicant was excessive.

116.We were of the view that a total sentence of 2 ½ years’ imprisonment was sufficient to reflect the 2^nd applicant’s culpability.

117.We therefore granted leave to the 2^nd applicant to appeal against sentence. Treating her application as the appeal proper, we allowed her appeal and reduced the sentence, on each of the 6 charges, to 2 ½ years’ imprisonment to run concurrently.

118.The total sentence on the 2^nd applicant was therefore reduced from 3 years to 2 ½ years.

Mr Man Tak-ho Jonathan, SGC of the Department of Justice for the Respondent.

Mrs M Panesar instructed by Messrs Tsang , Chan & Woo assigned by the Director of Legal Aid for the 1^st Applicant.

Mr. Kamlesh Sadhwani instructed by Messrs Lo, Wong & Tsui assigned by the Director of Legal Aid for the 2^nd Applicant (for conviction).

2^nd Applicant: In person (for sentence).