HKSAR v. Law Hay Chung and Others

CACC000628/1998

CACC 628/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 628 OF 1998

(ON APPEAL FROM DCCC 465 OF 1998)

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Coram: Hon. Stuart-Moore, V.-P., Keith, J.A. and Pang, J.

Dates of Hearing: 14 & 15 September 1999

Date of Handing Down Judgment: 15 November 1999

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J U D G M E N T

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

Introduction

1. On 15th December 1998, the Applicants (A1, A2, A3, A4 and A5 respectively) were convicted, following a 38-day trial in the District Court before Deputy Judge Geiser, on a number of charges which resulted in each of them being imprisoned for 2 1/2 years. They now seek leave to appeal against conviction, having not pursued applications relating to sentence which were accordingly dismissed.

2. There were originally five charges before the District Court. Charges 1, 2, 4 and 5 each alleged a conspiracy to offer advantages and charge 3 alleged a conspiracy to accept advantages, contrary to section 159A of the Crimes Ordinance, Cap. 200, and sections 4(1)(a) and 4(2)(a) respectively of the Prevention of Bribery Ordinance, Cap. 201. All the offences were alleged to have occurred on dates between August and November 1997, and they concerned the involvement of the Applicants in one or more agreements with others whereby money was sought from and paid by a candidate for the 1997 examination for promotion to sergeant in the Hong Kong Police Force. In short, the allegation was that money would exchange hands for the purpose of providing the candidate who was prepared to pay with improper assistance in order to secure his promotion. In effect, the candidate was provided with at least some of the questions it was likely he would be asked, and then told how to answer them.

3. Six defendants were variously charged at the outset of the trial, all of whom were serving members of the Police Force. A1 and A2 are twin brothers and both were Chief Inspectors. They were also known by their nicknames, "Sai Ma" (younger twin) and "Tai Ma" (elder twin) respectively. A3 was a Detective Police Sergeant. A4 and A5 were Detective Police Constables who worked under A3. The sixth defendant (D6) was a Superintendent. A1 and D6 sat on separate selection boards for the promotion examinations.

4. Other policemen who were involved in the conspiracies were Hui Kwok-leung (PW2) who was a Detective Police Sergeant and Leung Chuk-ming (PW6) who was an Inspector. Both accomplices had, for reasons which are not apparent from our papers and contrary to the normal practice, been sentenced in advance of the trial of these Applicants. Each had received a sentence of 15 months' imprisonment. Their evidence formed the backbone of the prosecution's case on charges 1 to 4 and, in PW6's case, on charge 5 also.

5. Two other accomplices to give evidence were Wong Chi-fai (PW12) who was a Police Constable who testified under immunity on charges 3 and 4, and Chung Kuen-wah (PW13) who was a retired officer and the father of Tang Chong-tai, the Police Constable named as the candidate seeking promotion in charge 5.

The Charges

6. It suffices for present purposes to set out in full the Particulars of charge 1 which were that:

"Law Hay-chung (A1), being a public servant namely a Chief Inspector of the Hong Kong Police Force, Law Hay-sing (A2), being a public servant namely a Chief Inspector of the Hong Kong Police Force, Lam Ting-chung (A3), being a public servant namely a Detective Police Sergeant of the Hong Kong Police Force, and Chu Chi-wah (A4), being a public servant namely a Detective Police Constable of the Hong Kong Police Force, between the 1st day of August 1997 and the 30th day of September 1997, in Hong Kong, conspired together and with Hui Kwok-leung (PW2) and Leung Chuk-ming (PW6) to, without lawful authority or reasonable excuse, offer to the said Law Hay-chung (A1) advantages, namely gifts, loans, fees or rewards consisting of an amount or amounts of money, from the said Chu Chi-wah (A4) as an inducement to or reward for or otherwise on account of the said Law Hay-chung (A1) performing or having performed an act or acts in his capacity as a public servant, namely improperly disclosing or having disclosed to the said Chu Chi-wah (A4) prior to an interview with members of Board 'D' of the 1997 Police Sergeant Force Selection Board of the Hong Kong Police Force, confidential information relating to the said interview, or rendering, or having rendered, other improper assistance relating thereto to the said Chu Chi-wah (A4)."

7. On this charge, relating to the candidature of A4, all those charged were convicted, namely A1, A2, A3 and A4.

8. The second charge related to the candidature of A5, and the first three Applicants together with A5 were convicted of this offence which was in otherwise similar terms to charge 1.

9. In charge 3, relating to the candidature of PW12, which A1 and A2 alone faced, they were alleged between 1st August 1997 and 30th November 1997, to have:

"conspired together and with Hui Kwok-leung (PW2), Leung Chuk-ming (PW6) and Wong Chi-fai (PW12) for the said Law Hay-chung (A1) through the said Law Hay-sing (A2) to, without lawful authority or reasonable excuse, accept advantages, namely gifts, loans, fees or rewards consisting of an amount or amounts of money, from the said Wong Chi-fai (PW12) as an inducement to or reward for or otherwise on account of the said Law Hay-chung (A1) performing or having performed an act or acts in his capacity as a public servant, namely improperly disclosing or having disclosed to the said Wong Chi-fai (PW12) prior to an interview with members of Board 'B' of the 1997 Police Sergeant Force Selection Board of the Hong Kong Police Force, confidential information relating to the said interview, or rendering, or having rendered, other improper assistance relating thereto to the said Wong Chi-fai (PW12)."

10. A1 and A2 were convicted of this charge.

11. The remaining charges, 4 and 5, can be taken more shortly as these resulted in acquittals. A1, A2 and D6 were acquitted on charge 4 and A2 was acquitted on charge 5. More of these charges will need to be said later in the light of what has been suggested on behalf of all the Applicants to have been an inconsistent approach by the trial judge to the accomplice evidence leading to convictions on some charges but acquittals on others.

Prosecution Case

(a) General

12. Before turning to the grounds of appeal of which there are very broadly three in which it is suggested that the trial judge erred in his approach to (1) corroboration of accomplice witnesses, (2) post-arrest activities and (3) the evaluation of the evidence in the cases of A1, A2 and A3, it is clearly desirable to look firstly at the nature of the prosecution's case.

13. The trial judge very sensibly did not attempt to set out in his 42-page Reasons for Verdict every aspect of the case which he had found proved. However, it is the very conciseness of the reasons which has led to criticism made on behalf of two of the Applicants that the judge failed properly to evaluate the evidence against them by "lumping together" evidence relating to the separate charges without a proper examination of whether or not there existed direct or circumstantial evidence of involvement against these individuals. With this qualification in mind, the Reasons for Verdict provide a perfectly adequate basis to paint the broad picture of the allegations so far as they are relevant to these proceedings.

14. A Chief Superintendent from police personnel management (PW1) provided the evidence of the examination structure for the promotion-to-sergeant examinations. It was he who, in 1997, arranged for four selection boards each to be chaired by a Superintendent, sitting with two "side board members" of the rank of Chief Inspector. At a briefing on 29th July 1997, all board members attended to be informed that 1,625 candidates were to be interviewed. The task was to be divided between four boards designated as "A" to "D", so that each board would interview about 400 candidates.

15. There were approximately 220 confirmed vacancies with a possibility of a further 60 arising before the end of the year. Each board would have to recommend 55 candidates for promotion with a further 15 names in order of merit for the reserve list. Selection boards were themselves split into two parts, the "Paper Board" and the "Interview Board". The "paper" assessments, accounting for 60 percent of the marking, took place between 4th August 1997 and 8th September 1997. These were followed by the interviews which had been intended to take place between 11th September 1997 and 22nd November 1997. The results of these carried the 40 percent balance of the marks.

16. Clearly, confidentiality as to the questions to be asked of the particular candidates was a priority or some of the purpose of the interviews, which was to obtain spontaneous answers to unrehearsed questions, would be ruined. General coaching at study groups, sometimes under the supervision of senior officers was, of course, permissible.

17. In relation to the integrity of the examination system, PW1 said that subtle approaches to Board members were regarded very seriously and should be reported. Woman Chief Inspector Siu (PW8), who sat with Chief Inspector Chow (PW9) as a side board member of Board "B", also gave evidence that it was contrary to a fair promotion examination exercise for others to attempt to influence the Board in favour of a particular candidate. PW8 and PW9 each referred to an occasion when an attempt was made by A1 to influence them as side board members in favour of the candidate (PW12) named in charge 3. D6 was the Chairman of Board "B".

18. The Chairperson of Board D responsible for the interviews of A4 and A5 was Superintendent Tsui (PW7). She sat with Chief Inspector Hau (PW5). A1 made separate approaches to her in relation to A4 and A5 by saying that they had worked under his brother. This information was false. PW5 gave some, albeit rather imprecise, confirmation of these approaches and testified also about a telephone call from A1 on 3rd November 1997, the day before PW12's interview, in relation to the Independent Police Complaints Committee (IPCC) and the Complaints Against Police Office (CAPO), which were to be topics on which PW12 would be asked questions.

19. All of this evidence was peripheral to the central allegations made by PW2 and PW6 that there existed the conspiracies in which they were themselves guilty participants as set out in the charges.

(b) Charges 1 and 2

20. PW2 was a close friend of A3. They often ate and went to saunas together. It was A3's approach to PW2 that led in due course to PW2 developing what he termed "a greedy mind" and to his agreement, in return for money, to assist A4 and A5 in their promotion prospects. PW2 was specifically asked to find out the "trend of the questions" that were likely to be asked. PW2 then contacted PW6 to get in touch with A2 so that, through him, A1 who sat as a side board member on Board D, could be approached. PW6 readily fell into the scheme to offer assistance in return for money.

21. PW2 testified that A3 thought his colleagues (A4 and A5) would not mind spending $10,000 to $20,000. PW2 said that PW6 and A2 were agreeable to this figure at the start.

22. At the heart of the allegation in charge 1 was the evidence of PW2 that, in September 1997, A4 and A2 met at the "Fair Sauna" in Jordan after he had collected A2 from Fairview Park. The others present at the Fair Sauna were PW2 himself, A3 and PW6. At this meeting, which was said by PW2 and PW6 to have taken place at a "hot water pool", the sum of money for the 'purchase' of questions and assistance was raised from $20,000 to $70,000 to which A4 eventually agreed. $50,000 was to go to A1 and A2, and PW2 and PW6 would have $10,000 each.

23. This meeting took place about a week before the interview which was due to take place on 15th September 1997. After the interview, A4 telephoned PW2 and expressed satisfaction at having been provided in advance with most of the questions he was asked during the interview. Later in the day PW2 informed A4 that he had passed and he asked him to make arrangements for the payment. On the following day, A3 presented himself at PW2's office and gave him a sealed envelope with seven stacks of $10,000 notes. After work, PW2 went to PW6's home and took one of the stacks for himself which amounted to $10,000. He left the other money with PW6.

24. PW6 confirmed in large measure the account generally given by PW2 as to the background of the allegation represented by charge 1. He also said that PW2 had told him that the money A4 had agreed to pay would be paid on the day following the interview and that PW2 had told him that A4 was satisfied at the way in which the interview had gone because the questions he had been given were accurate. Next day, as promised, PW2 came round with the money. He took his share of $10,000 and passed on the balance of $50,000 to A2.

25. There was agreed banking evidence which established that $50,000 was transferred from A4's account into A3's account and that $20,000 in cash was separately deposited in A3's account. A3 was the sole signatory on his account, and his withdrawal of $70,000 confirmed the financial arrangement described by PW2 and PW6.

26. The same two witnesses provided the vital evidence to establish the allegation in charge 2. The meeting place where the exact arrangements were finalised was, according to PW2, the home address of PW6 at Goodrich Garden. Those present, apart from PW2, were PW6, A2, A3 and A5. A5 was informed that as his Paper Board results were "ordinary" he would have to pay an additional $10,000, bringing his total payment to $80,000. PW2 also said that he told A5, before A2 arrived, that there was an increased possibility of promotion because he could get the questions to be asked by another member of his Board. A5 agreed to the arrangement. PW2 referred to A3 as not having taken part in this discussion as he was at various times facing the television set and talking into his mobile phone.

27. PW2 went on to say that after A2 arrived, A2, PW6 and A5 went into a bedroom for half an hour. Later A2 left, and it was after this that PW2 was told by A5 the four questions A2 had told him to expect. PW2 and PW6 then coached A5 for about 3 hours in his revision and as to the techniques used by the Board. PW2 felt that A5's revision was poor so that a further meeting was arranged for a day in the future. This duly took place.

28. After A5's interview before the Board, he telephoned PW2 to say he had not done very well. PW6 also told PW2 that A5 had not done well but that he would be placed in first position on the Reserve List of candidates. However, PW6 asked PW2 to tell A5 he had succeeded when at the same time asking him to make arrangements for the money to be paid.

29. Next day, PW2 was given the money by A5 in a white sealed envelope. Inside were eight wads consisting of $1,000 and $500 notes. He took the money to PW6 at a pre-arranged meeting place and the two of them went together to Yuen Long Police Station to divide the spoils with A2.

30. PW6 generally confirmed the evidence given by PW2 and he also related a further coaching session which he and A2 conducted in Fanling with A5 a few days before A5's appointment to appear before the Interview Board on 23rd September 1997.

31. In relation to this charge, the agreed banking evidence was to the effect that A5 withdrew $80,000 from his account on the day following his interview.

(c) Charges 3 and 4

32. Charge 3 arose in a different way to the first and second and did not involve A3 as the alleged instigator. PW2 gave evidence about an occasion when PW6 came into his office to explain an idea called the "four-to-one hostage scheme". This involved Board B chaired by D6. Under the scheme, D6 said there was an arrangement between D6 and A1 whereby, as the judge expressed it in his Reasons for Verdict, "(A1's) Board would promote four of (D6's) men and in turn (D6's) Board would promote one of (A1's) men". PW2 said that PW6 asked him to keep an eye open for someone suitable but that "money had to be spent anyway". In due course, PW2 met PW12 who was due to attend his interview before Board B on 4th November 1997. PW2 told him that an arrangement could be made to ensure his success but that, if he agreed, he would need to spend some money. PW12 agreed to PW2's suggestion so that he was rightly also treated by the judge as an accomplice. PW2 then telephoned PW6 to ask him to get in touch with A2 which resulted in PW12 being asked to pay $80,000. It was agreed between PW2, PW6 and A2 that A2 would claim to be the brother-in-law of PW12 so that Board B would see PW12 in a better light.

33. Thereafter, according to PW2, a meeting took place between PW12 and A2 at the Silver Lake Sauna in Yuen Long which was designed to strengthen A2's confidence. Also present were PW2 himself and PW6. There was a hot water pool at this establishment and some of the conversations took place at that location.

34. Following this meeting, others took place until, eventually, PW2 was informed by PW12 that he had obtained three questions. The day after that conversation with PW12, another meeting took place between PW2, PW6 and PW12 when PW6 informed PW12 that A2 would be able to obtain more questions because he was going to Macau with D6 and the two side board members. PW12 was asked to pay $20,000 for the Macau expenses but due to his reluctance to do so at that time, PW2 lent PW6 the money which PW2 asked PW12 to repay by paying $20,000 into his wife's bank account. PW12 agreed to do so. The judge noted that "very little if any of the substantive parts of his evidence was challenged" in cross-examination on behalf of A1 or A2.

35. A meeting between the three accomplices took place on 3rd November 1997 at about 8.30 p.m. in the Yeh Lam Restaurant where, according to PW2, PW6 told PW12 that he had not yet been able to get in touch with A2 to find out further questions which would be asked. Shortly afterwards, following what was said to have been a pager call, PW6 came back to say that he had now obtained three further questions to be asked by the female member of the board. In this context, Mr. Lunn, S.C., in the course of his submissions on behalf of A2, was able to demonstrate that the evidence of a pager call could not be correct. This did not, however, advance his case greatly as the admitted facts (at paragraph 18 of Exhibit P.99) establish that there was communication by telephone, as opposed to pager, at the relevant time.

36. PW2, PW6 and PW12 then went to PW6's address at Goodrich Garden. PW2 went on to say that PW6 had difficulty with a question relating to the IPCC and went downstairs to make a telephone call. He returned later with the answer. Between the two of them, they coached PW12 as to the answers relating to the IPCC and to CAPO.

37. After PW12 had completed his interview in front of Board B, he came to PW2's office and deposited an envelope in which he said was the balance of $60,000 he still owed. PW12 then went with PW2 and PW6 to Yeh Lam Restaurant. It was as they left that they were intercepted by officers of the ICAC, and the envelope, still containing $60,000, was found inside PW2's bag.

38. PW6 confirmed much of the evidence given by PW2.

39. PW6 gave evidence relating to D6 on the fourth charge which to a large extent was unsupported by other evidence. There were also a number of other evidential shortcomings on this charge which the trial judge listed. It seems that the combination of these factors provided the judge with his reason to acquit D6 and, consequently, A1 and A2 also.

(d) Charge 5

40. The acquittal of A2 on charge 5 was to some extent based, as it was in relation to D6 on charge 4, upon the absence of evidence to support PW6's testimony. However, more needs to be said of this later and, significantly, there were other considerations, as there had been with charge 4, which the judge also took into account when acquitting on this charge.

Post-arrest activities

41. In addition to the evidence given by PW6 about meetings and activities related to acts in furtherance of the conspiracies, PW6 also related a number of activities on the part of A1 and A2 which were illustrative of their involvement in those conspiracies. These were described by the judge as "post-arrest activities". Amongst several examples of these activities chosen by the trial judge in his Reasons for Verdict was the occasion when A1 and A2 met PW6 at Ma Wan Pier. Before they spoke, they all pulled up their clothes and turned out their pockets to prove to each other that they were not carrying bugging equipment. A1, in the discussions lasting about three hours which followed, said that it must have been D6 who had given information to the ICAC about an incident where he had been lavishly entertained by A1 and A2 at a nightclub. A1 also spoke of his regret that he had gone into the offices of Board B on 4th November 1997. (This was a reference to the evidence relating to charge 3 where A1 had falsely stated to PW9 that A2 was a brother-in-law of PW12 and, in relation to PW8, had requested that she should "look after" PW12.) A1 and A2 also told PW6 at the meeting that if A4 and A5 made admissions to the ICAC (regarding charges 1 and 2 respectively), they would "all bear criminal responsibility".

42. In another illustration taken by the judge from PW6's testimony, a further meeting took place at the "Upper One" Restaurant in Waterloo Road, where A2 had asked him to try to persuade PW2 to take all the blame on himself. A1's contribution to the same discussion was, as the judge put it in his Reasons for Verdict, to the effect that as PW6 was known to be "always in need of money" it would be "easier for people to believe that he would try to take his chance in making money for the promotion exercise and that therefore he should take the blame. (PW6) said he thought this may work so he agreed to the plan making it clear, however, that both (A1) and (A2) would have to pay $5,000 as comfort money to his parents". (The evidence was that this was to be a monthly amount to be paid to each of his parents, making $10,000 in all for each month.)

The Applications

43. It is convenient to deal firstly with the second ground of appeal raised by Mr. Plowman, S.C., on behalf of A1 as it is fundamental to the applications made by all the Applicants. Mr. Plowman submitted that the judge erred by allowing the accomplices PW2 and PW6 to corroborate the evidence of each other. He argued that this was a case in which the judge had made it plain by his acquittal of A1, A2 and D6 on charge 4 and of A2 on charge 5 that he was not prepared either to convict unless there was "independent supporting evidence" or to rely on PW6's word where it stood by itself.

44. The crux of Mr. Plowman's argument so far as it related to corroboration was that the trial judge, notwithstanding the abolition of the old rule which required a judge to warn himself of the dangers of convicting on the uncorroborated evidence of an accomplice, nevertheless demonstrated in several passages taken from the Reasons for Verdict that he had adopted the old approach. He submitted that if the judge had appreciated that one accomplice cannot, under the old common law rule, corroborate another then he would not have been able to convict A1 on the available evidence which was left against him.

45. Mr. Lunn, on behalf of A2, makes the same point in his first ground of appeal and adds that PW12's accomplice evidence was also used as confirmatory evidence of PW2 and PW6. Alternatively, in his second ground, Mr. Lunn submitted that even if the judge's approach of relying upon one accomplice to corroborate another was not erroneous, the warning the judge had given himself that he needed to approach the evidence of each accomplice with "extreme caution" made it dangerous to convict on their testimony.

46. The same points are made by Mr. Macrae, S.C., in his first ground of appeal on behalf of A3 and at greater length, but to the same effect, by Mr. Dykes, S.C., with him Mr. Philip Wong, in their first four amended perfected grounds of appeal on behalf of A4 and A5.

47. Dealing with these submissions together, section 60 of the Criminal Procedure Ordinance, Cap. 221, abolished the requirement that a judge has to warn himself about convicting an accused on the uncorroborated evidence of a person merely because that person is an alleged accomplice of the accused. The judge was, of course, aware of this but, understandably in the circumstances, he chose to view the evidence of the accomplices in this way:

".... I have, wherever possible with (PW2), as with other accomplices, looked for independent supporting evidence". (Emphasis added.)

48. It is plain, since the introduction of section 60, that attempts to re-impose the 'old' corroboration rule which was in existence beforehand have been rejected by the courts. The same point which has been taken in the grounds we are now considering was raised in R v Thirlwell and Pang, CACC 332/96 (unreported). Mr. Plowman appeared in that case for Thirlwell, but it was a point raised by counsel for the 2nd applicant. The Court (at page 16) summarised counsel's argument as being that:

".... the wisdom of the law prior to the enactment of section 60 must not be ignored and judges today must look to the old law when directing themselves as to the way in which they should treat accomplice evidence."

Power, Ag. C.J., dealt with this by saying:

"This submission we also reject. We cannot emphasize too strongly the observation in R v Makanjuola [1995] 1 WLR 1348 in which Lord Taylor said at 1352:

"Attempts to re-impose the straitjacket of the old corroboration rules are strongly to be deprecated."

Section 60 means what it says. The former requirements compelling a judge to warn himself about convicting on uncorroborated evidence of accomplices are abrogated. The judge in the present case did more than he was required to by warning himself in explicit terms of the need for caution when assessing the evidence of the accomplices."

49. We have not considered it necessary to consider whether the support given by one accomplice to the evidence of another accomplice could, in the circumstances of the present case, have amounted to "corroboration" in the technical sense of that word. The reason for saying this is that it is abundantly plain that the judge was referring to his desire to find some other evidence "wherever possible" which gave circumstantial support from a different and independent source to the accomplice for whose testimony support was being looked. It has been rightly emphasised by counsel for the Applicants that the judge had every reason to be on his guard. The accomplices had engaged in corruption of a grave kind and there were several other flaws to the characters of PW2 and PW6 on which they were justifiably attacked as to their credit. The judge had taken full cognisance of these matters and, in his discretion, he had fairly and, subject to what we say later, even wisely perhaps, decided that, wherever possible, it would be prudent to look for other supporting evidence before he could feel satisfied of guilt to the required standard.

50. In The Queen v Chu Ip-pui, (1997) HKLRD 549, an appeal with which Mr. Plowman is also familiar, having appeared in it, the Court dealt with the reasons for the abolition of common law rules relating to the corroboration of accomplices. Mortimer J.A., at 552, said:

"We venture to suggest that the purpose of the abrogation of the old rule by section 60 of the Criminal Procedure Ordinance is to free the decision-maker of the technical - and mostly judge-made - rules of the common law on corroboration thereby to permit the judge or jury to concentrate upon the weight to be given to accomplices having regard to such supporting evidence or circumstances as may be proved. Accomplices have not by this reform suddenly become more credible or less dangerous as witnesses, but the approach is now left to the discretion of the judge. It is necessary that such discretion is unfettered so that he can achieve a fair trial. The English Court of Appeal considered this matter in R v Makanjuola [1995] 1WLR 1348 at 1351D where the former Chief Justice said:

'Given that the requirement of a corroboration direction is abrogated in the terms of (the English statute), we have been invited to give guidance as to the circumstances in which, as a matter of discretion, a judge ought in summing up to a jury to urge caution in regard to a particular witness and the terms in which that should be done. The circumstances and evidence in criminal cases are infinitely variable and it is impossible to categorise how a judge should deal with them. But it is clear that to carry on giving "discretionary" warnings generally and in the same terms as were previously obligatory would be contrary to the policy and purpose of the Act. Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness's evidence, the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness's evidence. We stress that these observations are merely illustrative of some, not all, of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and this court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness's evidence as well as its content.'

We accept and respectfully adopt these observations. They apply equally to a judge directing a jury as to a judge sitting alone and directing himself or herself.

Mr. Plowman has helpfully invited the court to consider a further decision of the present Chief Justice Lord Bingham in R v R [1996] Crim L R 815. He was considering a similar circumstance. Lord Bingham raised the question whether there may be circumstances in which the old warning ought to be given. He said:

'So did this constitute one of those extreme cases where a stronger warning, or even an invitation to look for corroboration should have been given? It was not thought so. It must always be a matter of impression as to "where a witness stands in the scale of reliability".'

For our part - whereas no limit can be put upon a judge's discretion - following the abrogation of the rule, it would be most unusual for him to feel obliged to give the old direction. We cannot think of circumstances in which he could be criticised for not giving the old full direction now that the requirement for it has been abolished." (Emphasis added.)

51. In the present case, towards the end of the Reasons for Verdict, the trial judge came to his findings in relation to the credibility of PW2 and PW6. He said:

"As far as (PW2) and (PW6's) evidence is concerned they are both main accomplices whose evidence I have scrutinised most carefully and have warned myself about the inherent dangers of accepting such evidence. However, I say in short that I believe them both. Despite extensive criticisms levelled at their evidence by all counsel, I find both of them to have given credible evidence of these events which can only have come from them having first-hand knowledge. The details of the conspiratorial arrangements that they went into in their evidence leaves me with no doubt that what they were telling the court was true. To have made up such an elaborate story in such extraordinary detail would, I find, be astonishing, and I dismiss it.

I am also alive to the fact that each was giving his evidence from his own point of view when the other may not have been present. Their evidence interlocks and marries up with each other."

52. A little later, dealing with PW12, the judge said:

"(PW12), a co-conspirator insofar as charges 3 and 4 were concerned, was also, I found, a very good witness. He of course was another accomplice so I treated his evidence with caution. I found his evidence to be cogent and truthful and significantly his evidence went largely unchallenged. I accept his evidence."

53. These passages can only suggest that the judge found that the witnesses lent support to each other in the circumstantial sense. There are further indications for this having been the view of the judge which are provided in the Reasons for Verdict. Having said that it was unnecessary to go through PW6's evidence in the same detail as PW2's because this would involve "repeating a lot of the evidence", the judge frequently went on to use the phrase (about PW6) that "he also confirmed" the evidence of PW2. However, on at least three occasions the judge loosely used the word "corroborated" in a context where, on all other occasions, the judge was talking of supportive or confirmatory evidence.

54. We find no substance to the suggestion that the judge was attempting to apply the rules as they used to relate to corroboration. He was merely looking wherever possible, as he stated he was doing, for evidence to support PW2 and PW6.

55. It is necessary next to return to Mr. Plowman's additional argument that the acquittal of A1, A2 and D6 on charge 4 and of A2 on charge 5 demonstrated that the judge was not prepared to convict on the evidence of an accomplice witness without corroboration. In this submission, he was joined by Mr. Lunn, Mr. Macrae and Mr. Dykes. It was their contention that if the judge had appreciated that one accomplice could not corroborate another, the judge would not have been able to convict any of these Applicants. Having regard to what we have already said about corroboration, the point in this regard no longer has any significance. The judge was looking for supporting evidence rather than corroboration in the technical sense.

56. However, there is some superficial force in the argument that the judge, despite having expressed reliance on the accomplices' evidence, did not convict on charges 4 and 5 where the evidence of PW6 stood alone and unsupported. The question arises whether this was because he did not in fact believe PW6 or whether the judge was being firm in his resolve to look for evidence in support wherever possible. Clearly it was the latter. As Mr. Reading, S.C., with him Mr. Zervos, on behalf of the Respondent, pointed out in their most thorough and helpful submissions, the judge was simply not satisfied to the required standard of proof on charges 4 and 5. In charge 4, the conspiracy focused on an agreement between A1, A2 and D6 that D6 would be offered an advantage "namely the services of an escort and/or a favour from A1 in assisting four candidates of Board D .... as specified by D6 in the promotion to sergeant ...." This was the scheme previously referred to as the "four-to-one-arrangement". The judge had this to say about it:

"Firstly, the four-to-one arrangement: the evidence as to this comes from (PW6). Whilst I have said already that I found (PW6) to be an impressive witness whom I have believed in relation to the preceding charges, his evidence standing alone as it does is not sufficient, in my view, to establish to the required standard the existence of this arrangement. There is no evidence as to the names, for example, of the four other candidates." (Emphasis added.)

57. The judge then went on to itemise other features of the evidence which left him unsure that the case had been made out on this charge. He continued by saying in relation to D6:

"The fact that there is virtually no evidence that D6 received escort services is an indication that there may never have been any agreement between the parties to this effect." (Emphasis added.)

58. The judge made further findings in relation to the fourth charge by itemising other evidential shortcomings before concluding that he had a "lurking doubt as to the involvement of D6". As a consequence of this he also acquitted A1 and A2.

59. A similar pattern emerges in the approach taken by the judge to charge 5 against A2 alone which alleged a conspiracy with PW13 (another accomplice) and PW6 to offer advantages to A1 to look favourably on the promotion of Tang Chong-tai to sergeant. The judge found it unnecessary:

"to go into the details of PW6's evidence in relation to this because, whilst I accept on a prima facie basis what he says as to the events of the occasion when (PW13) came to his flat and met (A2), there is no evidence of any independent or supporting nature that points to the existence of this conspiracy.

Also I am unsure to the required standard, having heard the evidence of PW13 as to whether he had formed the necessary mens rea that he joined in the conspiracy with PW6 and (A2). This being the case, I find I am unable to say that the prosecution have proved this charge beyond all reasonable doubt." (Emphasis added.)

60. These passages illustrate the force of Mr. Reading's submission that it was not so much a disbelief of PW6's testimony as a general lack of other evidence where this might have been expected to be found which caused the judge to find that the high standard of proof required before a conviction could be entered had not been attained.

61. We find no substance in the argument that the acquittals on charges 4 and 5 leave a doubt as to the integrity of the convictions on other charges.

62. Accordingly, these grounds, so far as they relate to corroboration, must fail. However, before we leave them altogether, we do feel that the judge was perhaps in the present context going further than he need to have done when, having found that the three accomplices had all given credible evidence, the judge found it desirable to look for supporting evidence. Perhaps this was done out of an abundance of caution but, in any event, it seems plain that if the evidence of the accomplices had not married up in detail then they would have lacked credibility. As counsel on behalf of all the Applicants have been at pains to observe, there was ample evidence to show that PW2 and PW6 had the opportunity to put their heads together to concoct a story, but the trial judge utterly dismissed the notion that they had in fact done so.

63. Turning next to Mr. Plowman's first ground of appeal, which needs to be considered in two parts, he submitted firstly that the judge erred in his assessment of the evidence and in his consequential findings against A1 on all the charges on which he was convicted. Mr. Plowman pointed to various pieces of evidence which the judge had held to be acts and declarations made in furtherance of these conspiracies. It was his submission that if that evidence had been properly assessed against A1, there was insufficient direct or inferential evidence to show that he was a party to any of the conspiracies.

64. An important secondary aspect of this ground which Mr. Plowman advanced was that the post-arrest activities could never have amounted to "acts or declarations made in furtherance of the conspiratorial arrangement" in any of the charges, yet the judge had seemingly considered that they were. Mr. Plowman further argued that in any event these post-arrest activities did not in themselves give rise to an "irresistible inference" that A1 was a party to the offences.

65. As similar grounds to the second part of ground 1 were advanced on behalf of A2, A4 and A5 it is convenient to deal firstly with this aspect. Mr. Lunn, in his third and fourth grounds of appeal on behalf of A2, likewise submitted that the judge had taken the post-arrest activities as acts and declarations in furtherance of the conspiracies and that the evidence, whilst giving rise to suspicion, was an insufficient basis for saying A2 was a party to the conspiracies. Mr. Dykes submitted in his fifth ground on behalf of A4 and A5 that the judge erred in law by treating PW6's evidence relating to the post-arrest activities as evidence in furtherance of the conspiracies when this could only be used as evidence of admissions by those involved in those activities and could never be used as evidence against A4 and A5, neither of whom took any part in them.

66. All of the complaints relating to the post-arrest activities focus on the way the judge expressed his findings as to each of the conspiracies. In relation to charges 1, 2 and 3, he listed numerically the evidence from which he drew the inference that the respective Applicants were shown "prima facie" to have joined the conspiracies of which they were convicted. In respect of charge 1, there were five principal points which the judge selected, there were seven points relating to charge 2 and ten for charge 3. It will be necessary in due course to return to these when considering other aspects of the grounds of appeal.

67. Having dealt with the five itemised points which the judge found gave rise to an inference that A1, A2, A3 and A4 had joined the conspiracy in charge 1, the judge went on to say:

"I also point to the post-arrest activities that (PW6) referred to in his evidence when code-names were used to identify each other over the telephone and to the meeting that (PW6) had with (A1) and (A2) at the beach near Ma Wan Pier. These discussions indicate that both (A1) and (A2) were very much a part of the conspiracy.

All of the matters that I have referred to in (1)-(5) are all acts or declarations made in furtherance of the conspiratorial arrangement referred to in charge 1. Looking at the evidence as a whole as I do, I find there to be abundant evidence for me to draw the irresistible inference that (A1), (A2), (A3) and (A4) were all part of this conspiracy. I say the prosecution have proved charge 1 beyond all reasonable doubt against (A1), (A2), (A3) and (A4). They are all convicted accordingly." (Emphasis added.)

68. In our view, it is abundantly plain from the way the judge expressed his Reasons for Verdict that the five points which gave rise to an inference as to the Applicants' involvement in the first conspiracy charge were those which he had itemised by number. The post-arrest activities were indicative that A1 and A2 were "very much part of the conspiracy". He was referring, not to the post-arrest activities of A1 and A2 as being acts in furtherance of the conspiracy but to the five points he had so clearly set out. The same applies to the second and third charges where the judge adopted a similar formula. Having set out the seven points from which he drew the inference that A1, A2, A3 and A5 were involved in conspiracy, he went on to say:

"Finally, as with the 1st charge, I point to the post-arrest meetings and discussions that (PW6), (A1) and (A2) engaged in, particularly at the beach near Ma Wan Pier and I ask myself whether these discussions were the discussions of innocent men. I find they were not." (Emphasis added.)

69. In relation to the third charge, having itemised the ten points which gave rise to an inference of involvement of A1 and A2 in the conspiracy, he went on to say:

"Once again, finally, there is the evidence of (PW6) as to the post-arrest discussions he had with (A1) and (A2) which indicate that (A1) and (A2) were party to this conspiracy." (Emphasis added.)

70. The matter is in any event put beyond doubt because the judge had himself made a ruling during the trial as to the status of the evidence concerning these activities. In ruling the post-arrest evidence to be admissible, in the face of objection by the defence, he said:

"The prosecution are seeking to adduce evidence from this witness, that's Leung Chuk-ming (PW6), as to events that occurred after his arrest by the ICAC on 5 November of 1997. These matters concern various meetings that (PW6) had with (A1) and (A2) and conversations that they had with each other as to the statements that they'd made to the ICAC.

The prosecution say that whilst these matters are not necessarily acts and declarations in furtherance of any conspiracy as the alleged conspiracy is over by this time, they're nevertheless admissible as they go directly to the state of mind of (A1) and (A2) to show that they had not only knowledge of, but also participated in the alleged conspiracies.

(Counsel) for (A1) and (A2) has taken me through the relevant evidence and submits that the evidence is generally unreliable as, in part, it is non-specific and in any event, for the most part, does not consist of or could not be construed as admissions on the part of (A1) and (A2). Whilst the point does not precisely involve the other defendants, (counsel) for (A3), (A4) and (A5) and (counsel) for (D6) submit that in any event the evidence is not admissible as against their clients as these are not acts and declarations by (A1) and (A2) in furtherance of any conspiracy. I accept this. Nevertheless, it seems to me that by looking at the evidence as a whole and the context in which the statements were made, the evidence must be admitted as against (A1) and (A2) as it's entirely relevant to the alleged conspiracies and certainly inferences of knowledge and participation in those conspiracies could be drawn from the evidence given."

71. It is apparent that the judge did not confuse evidence about post-arrest activities with evidence that went to the acts and declarations in furtherance of these conspiracies. The evidence was only admissible against A1 and A2 to show knowledge of them and participation in them. We are satisfied that at no time did the judge, contrary to Mr. Dykes' suggestion, use the evidence against A4 and A5.

72. We have found no substance, in relation to any of the Applicants, on this ground.

73. Returning to Mr. Plowman's submission that there was insufficient direct or inferential evidence to show that A1 was party to these conspiracies, it is necessary to go to the evidence which the judge itemised in his findings. In effect, grounds 2 and 3, taken on behalf of A3 relating to charges 1 and 2 respectively, cover the same ground. It is convenient, therefore, to take these grounds together, although each Applicant's case must be looked at separately when considering whether the judge was entitled to find evidence of involvement against any of them. This aspect is particularly important as the judge has been criticised for having failed to make a separate assessment of each Applicant's involvement by having listed the evidence going to each conspiracy under the heading of each of the charges rather than taking what might have been the preferable course of listing the evidence against the Applicants individually on each charge. It seems to us, however, that the judge, if he had adopted the latter course, might have found that there was very considerable repetition in what he said as much of the evidence given by PW2 and PW6 was common to more than one of the defendants before him. Be that as it may, the judge expressed his findings on charge 1 in this way:

"Charge 1 against (A1), (A2), (A3) and (A4)

Insofar as the 1st charge is concerned against (A1) to (A4), there is in my judgment clear evidence, principally from (PW2), (PW6) and (PW7), all of whose evidence I say I accept, that each of the four defendants have prima facie joined the conspiracy. The evidence that I point to from which I infer that this must be so is:

(1) The evidence of (PW2) as to his meetings with (A3) at the compound of Tai Hing Police Station in August 1994. It was as a result of (A3's) approach that this conspiracy, and indeed the conspiracy that is the subject matter of the 2nd charge, was instigated.

(2) The banking evidence which shows that on 16 September a $50,000 transfer from (A4's) account to (A3's) account was made, together with a cash deposit of $20,000 into (A3's) account, and a subsequent withdrawal of $70,000, ties in exactly with the evidence of (PW2) that on the very same day he received a brown envelope from (A3) in (PW2's) office.

(3) The evidence of both (PW2) and (PW6) as to the discussions they had at the Fair Sauna where it was agreed that (A4) would pay $70,000 for the questions.

(4) The evidence of (PW6) which I accept relating to (A2) actually providing questions to (A4) in the massage room. It is worthy of note that according to the evidence of (PW7), which I also accept, that four of the questions that were actually asked of (A4) were included in the ones that were provided to him.

(5) The evidence of (PW7) of (A1) some time before the interview of (A4), actually approaching her and tell her that (A4) once worked for his brother and that he was good. Although unbeknown to (PW7) at the time, this in fact I find to be a lie and also a statement which (A1) knew to be a lie, because the service records indicate that (A4) had never worked for (A2)."

74. Mr. Plowman rightly submitted that items (1) to (4) did not directly involve A1. He contended that the evidence in item (5) was not sufficient to give rise to an irresistible inference that A1 was a party to the conspiracy and that the post-arrest activities, with which we have already dealt, could equally not do so.

75. This is a difficult argument to follow. This evidence had to be considered in the light of all the evidence before the court. Money was solicited from A4 in order that he could be given improper assistance to secure promotion. The judge had found that four of the questions with which A4 was confronted at his interview had been supplied to him. These came from A2, but it was A1, not A2, who was a member of the Board responsible for interviewing A4 and the judge, it is plain from his findings elsewhere, had not lost sight of this. Furthermore, what might superficially seem to be, as Mr. Plowman argued, an innocent approach to PW7 with information about A4 that A1 might not have known was false, takes on a far more sinister character. In any event, the judge was satisfied that A1 did know that the statement he had made about A4 having worked for his brother, A2, was a deliberate lie. In its complete context, the evidence all pointed to the questions having emanated from A1. When this evidence is coupled to the post-arrest activities there was, as the judge expressed it, every indication that A1 was very much part of the conspiracy.

76. A1 was the only Applicant to give evidence. Nothing he said did anything to dislodge what were otherwise overwhelming inferences that he was involved. He denied involvement in all the conspiracies. He came across, as the judge put it, as "arrogant and dogmatic". The judge disbelieved what he had to say and gave a number of cogent reasons why he did so.

77. Mr. Lunn, very sensibly on behalf of A2, did not raise a similar ground of appeal. If his other grounds of appeal failed, as we have indicated already they must, the evidence against A2 was overwhelming.

78. It might be thought the same was true of A3. However, Mr. Macrae submitted on his behalf, in grounds 2 and 3, that the judge erred in his assessment of the evidence against A3 on charges 1 and 2. He submitted that on both charges there was insufficient evidence to establish that A3 was a knowing and willing party to these conspiracies.

79. The factual basis contained in the five itemised points chosen by the judge to demonstrate that the four Applicants had joined the conspiracy in charge 1, included three items which amount, in summary, to A3 having instigated the offence, having been present at the Fair Sauna where A4 agreed to pay $70,000 for questions, and to PW2 paying precisely that amount into A3's account. We were not impressed by Mr. Macrae's argument that no guilty involvement on the part of A3 had been established because he had done no more than ask PW2 about the "trend" of the questions which were likely to be asked or that A3 did not know about an arrangement whereby money would be paid for the questions to be provided in return for money. Plainly, these two highly significant factors have to be looked at together. We also reject Mr. Macrae's submission that there was no evidence as to where the $20,000 in cash (allegedly part of the $70,000 paid by A4) came from and that A3 had not been shown to have had knowledge of the contents of the package he gave PW2 which in fact contained $70,000. There was no direct evidence but the inferences arising from the circumstances of A3's handling of the money were extremely compelling. A3, in giving no explanation of his own, cannot now be heard to complain that the judge had little difficulty in coming to the conclusion that A3 knew of the financial arrangement.

80. Mr. Macrae was on stronger ground when he submitted that the Fair Sauna events related in particular to an alleged meeting in a pool that did not exist. As this is the subject of other grounds of appeal, we shall deal with this topic later. There were other less significant matters raised by Mr. Macrae which do not need to be canvassed as they cannot affect the view we have taken as to charge 1.

81. Turning next to charge 2, the judge set out seven points which satisfied him that there was prima facie evidence that A1 and A3 and the others charged had joined the conspiracy. Not all of the points affected A1 or A3, but it is desirable to take them all to paint the full picture. The judge, in his Reasons for Verdict said this:

"Charge 2 against (A1), (A2), (A3) and (A5)

Insofar as charge 2 is concerned, this alleged conspiracy concerns (A1), (A2), (A3) and (A5). I find there to be clear evidence once again, principally from (PW6), (PW2) and Superintendent Tsui (PW7), that each of the four defendants have prima facie joined the conspiracy. The evidence that I point to from which I infer that this must be so is:

(1) Once again evidence from (PW2) as to his meetings with (A3) at the compound of Tai Hing Police Station in August 1997.

(2) The evidence of both (PW2) and (PW6), which I accept, regarding the meeting at (PW6's) home in Goodrich Gardens when both (A5) and (A3) were present and when it was agreed by (A5) that he would pay $80,000 for the questions of (A1) and the other side board member and where in the bedroom (A2) provided questions to (A5) in the presence of (PW6).

(3) The evidence of the two subsequent meetings that took place, the first being on 20 September at (PW6's) place where both (PW6) and (PW2) coached (A5); the second meeting taking place a few days later at Madam Chung's place in Fanling when (A2) was present and coached (A5). I am perfectly satisfied these meetings took place.

(4) I point to the evidence of (PW7) that once again (A1) approached her before (A5's) interview and told her the lie that (A5) had once worked for his brother and also her evidence which established that each of the questions that were provided to (A5) were all asked.

(5) I accept also (PW7's) evidence that (A5's) interview was not good and that she had disagreed with (A1's) handwritten report (Exhibit P14) where he recommended (A5) for promotion.

(6) It was the evidence of (PW2) which I accept that (A5) came into his office on 24 September and handed him a white envelope that contained $80,000. This corresponds exactly with the independent banking evidence which establishes that on the very same day $80,000 was withdrawn from (A5's) bank account.

(7) I accept the evidence of both (PW2) and (PW6) as to the meeting that took place with (A2) inside the toilet of Yuen Long Police Station where the money was divided."

82. Taking Mr. Plowman's submissions firstly, he argued that the evidence referred to in paragraphs (4) and (5) was insufficient to give rise to an irresistible inference that A1 was party to this conspiracy.

83. The evidence which the judge had itemised established that A1, as a side member of Board D which interviewed A5, had written a report (P.11) in which he recommended A5 for promotion to sergeant. However, PW7 said that she had not thought A5 had performed well and she added the words 'To be considered' at the bottom of the report. In addition, the evidence of the lie PW7 was told by A1 just before A5's interview (in similar circumstances to the approach he made to PW7 when A4 was about to be interviewed), to the effect that A5 had worked well under his brother, puts the post-arrest activities into their true context. These were appropriately described by the trial judge as not being the discussions of innocent men and as indicative of men who had direct involvement. There was ample evidence, taken as a whole against A1, on this charge, for the judge to draw an inference of guilt.

84. Mr. Macrae, in his third ground of appeal, submitted that points (1), (2) and (6) were insufficient to establish A3's guilt on the second charge. We disagree. The evidence, and the overwhelming inference to be drawn from them, was such that the judge was perfectly entitled to conclude in the manner he did. There were, however, a number of inconsistencies in the evidence relating to A3 which are the subject of a fourth ground of appeal on his behalf. We will turn to this, and A1's third ground of appeal later.

85. The principal evidence so far as the conspiracy alleged in charge 3 is concerned was set out by the judge as follows:

"Charge 3 Against (A1) and (A2)

This is a conspiracy to accept advantages against (A1) and (A2) only. I find there to be clear evidence, coming principally from (PW6), (PW2) and (PW12), that both (A1) and (A2) have prima facie joined in the conspiracy. The evidence that I rely on from which I infer that this must be so is:

(1) The evidence of meetings and discussions that I accept occurred between (PW2), (PW6) and (PW12) as to the agreement by (PW12) to pay $80,000 for his promotion.

(2) The meeting at the Silver Lake Sauna which I find as a fact happened where (PW12) was introduced to (A2), and (PW2) told (PW12) that he would be put forward as (A2's) relative to assist (PW12) in getting promotion.

(3) I also accept the evidence of both (PW12) and (PW6) as to the events of 30 October 1997 at the car park of Sheung Shui Police Station where (PW12) received three questions from (PW6) who had obtained them from (A2). I am further satisfied on the evidence of (PW6), (PW12) and (PW2) as to the provision of three further questions that (PW12) received at the Yeh Lam Court Restaurant on 3 November 1997.

(4) There is the evidence of (PW8), WCIP Siu, (PW9), Chief Inspector Chow and the videotape itself (Exhibit P39) which establishes that of the six questions that were provided all six were asked.

(5) There is the further evidence of (PW8) which I accept as to the approach made to her by (A1) when he said in relation to B344, "sze chiu, sze chiu", meaning I find 'to take care of him' and further that Tai Ma had said that he was good.

(6) Similarly, I accept the evidence of (PW9) when he also said that (A1) approached him and said that B344, i.e. (PW12), was a relative of Tai Ma (A2) and he asked him to 'tai tai keui' which he said he understood to mean 'to look after him'.

(7) There is the evidence of the videotape (Exhibit P39) once again where D6 states that (A1) came over and there was a reference made about the candidate being (A2's) relative. In that videotape D6 stated that all the questions had been supplied to the candidate and that he would place him on the reserve list despite his poor performance.

(8) I accept also the evidence of both (PW12) and (PW2) that at the Yeh Lam Court Restaurant on 4 November 1997 (PW12) handed (PW2) a white envelope that contained $60,000. It is an agreed fact that this money was found in (PW2's) handbag upon his arrest.

(9) There was independent evidence by way of banking evidence in relation to cash withdrawals by (PW12) over this period of time.

(10) There was also independent evidence linking (A1) to the supply of questions by the seizure of Exhibits P17 and P45 from his car, and P44 from his home."

86. Mr. Plowman's submission began by pointing out that paragraphs (1) to (4) and (8) and (9) did not directly implicate A1, and he submitted that the remaining paragraphs provided insufficient evidence to give rise to an irresistible inference that A1 was a party to this charge. As we have said in relation to other aspects of these grounds, each piece of evidence has to be read in context. Mr. Plowman argued, as he had done in relation to charges 1 and 2 where evidence of a similar nature was involved that, so far as the findings in paragraphs (5) and (6) are concerned, it could not be proved that A1 knew the statements he made about PW12 to PW8 and PW9 were false or that he made them as a co-conspirator. He was on slightly stronger ground where paragraphs (7) and (10) were concerned because these points were marginally less significant in value against A1. However, the combination of this evidence taken together with the post-arrest evidence with which we have already dealt and which was indicative, as the judge found, of involvement in the conspiracy, provided a strong base for the judge to draw the inferences he set out in his findings.

87. Accordingly, these grounds fail.

88. In his third ground of appeal, Mr. Plowman submitted that the judge had failed to evaluate the evidence in a number of respects. The first of these was in relation to a conflict of evidence between PW2 and PW6 on the one hand and DW2 on the other about a hot water pool, or lack of it, at the Fair Sauna. The importance of this location is that it was the venue for what was alleged to have been the meeting of all the conspirators in charge 1 except A1 where the financial arrangements were discussed relating to the provision of confidential information. PW2 and PW6 gave evidence that there was a hot water pool at the sauna. The defence called Cheung Kau-tak (DW2), who was the general manager of the Fair Sauna, to say that there had never been a hot or cold water pool at these premises. This evidence was accepted by the judge who concluded that the two prosecution witnesses were genuinely mistaken. He found that the mistake that they had each made did not detract from their credibility because this evidence had to be looked at in the context of the Silver Lake Sauna which both witnesses had been to before (in the context of the evidence concerning charge 3), where there was a hot water pool.

89. Mr. Plowman submitted that this was clear evidence of collaboration between the two accomplice witnesses, and that it was beyond belief that they could have made the same mistake, bearing in mind that the two sauna establishments were at entirely different locations and that it was PW12, not A4, who the conspirators in charge 3 met at Silver Lake Sauna.

90. Mr. Macrae, in part of his fourth ground of appeal on behalf of A3 also submitted that the judge had made no evaluation of the inconsistency to be found in this evidence.

91. Whilst it is true that the error made by PW2 and PW6 was potentially important, it is clear that the judge did give this aspect of the case his close attention and, following his findings which have already been summarised as to this issue, he went on to say that with regard to both accomplice witnesses "they had absolutely nothing to gain insofar as any reduction of sentence is concerned". In saying this, the judge remarked that PW6 had completed his sentence two days into his evidence. Put into its full context, it is small wonder that the error made by PW2 and PW6 was found to have been genuinely made.

92. While dealing with Mr. Macrae's fourth ground of appeal, he also submitted that the judge had, having accepted PW2 and PW6 as credible witnesses, failed to evaluate the inconsistencies in the evidence given by them as to the meeting which took place at PW6's home address in Goodrich Gardens relating to charge 2. His ground of appeal in fact indicates that the address was D6's but this is obviously in error.

93. Mr. Macrae was on stronger ground in making this submission because some of PW2's evidence concerning the important conspiratorial events which took place between PW2, PW6, A2, A5 and A3 at Goodrich Gardens appears to be an attempt to exonerate A3 who, as we have already remarked, was a close friend of PW2. Mr. Macrae's simple point was that the judge could not believe both PW2 and PW6, as he had expressed himself as doing, in circumstances where one of them gave evidence that was, if accepted, exculpatory of A3. However, we do not need to consider this submission in great detail. Whilst it is true that PW2 gave evidence that A3 was present but not participating in those particular conspiratorial conversations, which to a limited extent contradicted what PW6 had said, the meeting which undoubtedly took place while A3 was there, cannot be taken out of context. It was A3 who had instigated the offence committed in charge 2 by making the initial approach to PW2 in the Tai Hing Police Station car park, followed by two further meetings at the same location where his involvement was confirmed. Ultimately, following A5's interview, A3 went with A5 to PW2's office with the white envelope containing $80,000 which was the precise amount A5 had agreed in Goodrich Gardens he would pay for the questions he would be asked at his interview. It was of little consequence, when set in context, whether or not there was direct evidence from PW2 that A3 had heard the discussion which led A3 to agree to pay this sum of money.

94. Returning to Mr. Plowman's third ground of appeal, he submitted that the judge also failed to consider that the evidence given by PW5, PW7, PW8 and PW9 might have been coloured by self-interest so that their evidence should not have been relied upon where it conflicted with A1's defence. This proposition is put forward firstly on the basis that PW12 was asked questions, not by D6, but by the side board members (PW8 and PW9), which PW12 had been given in advance. However, the judge dealt with this in his Reasons for Verdict where he stated that D6 did provide the questions of his side board members through A1 to A2 for "onward transmission" to PW12. D6 was actively recorded as saying that he knew that PW12 had been supplied with all the questions. This was the clearest evidence that he had supplied them himself.

95. Mr. Plowman next advanced the suggestion that, as PW1 had said that it would be unusual for Board members to discuss amongst themselves what sort of questions they would ask the candidates seeking promotion, which was to an extent supported by evidence given by PW9, there was a real possibility that the questions A2 passed on to A4, A5 and PW12 had come from some other source apart from A1. Putting this more bluntly, Mr. Plowman was suggesting that these Board members, some or all of them, might themselves have been responsible for leaking the questions they intended to ask during their interviews of the candidates.

96. There is no proper foundation for this suggestion. Although Mr. Plowman produced a schedule to illustrate that many of the questions which A4, A5 and PW12 were asked came from side board members, there was no evidence of these having been leaked to the candidates by those members. However, where there was evidence on the subject, some of it served to confirm A1's involvement as the potential candidate who had leaked the questions. PW5 testified that on 3rd November 1997, he received a pager message during the evening from A1. When PW5 returned the call, A1 asked him about the IPCC 1995 recommendations for CAPO. He provided the information to A1 which he required and A1 confirmed this when he gave evidence on his own behalf. It has to be remembered in this context that PW12 was interviewed on 4th November 1997 and that he was asked questions on this subject having received "coaching" the night before on this very question. In addition, PW7 said that "only sometimes" would she be aware of the questions her fellow board members proposed to ask. This appears to confirm that in reality board members did discuss amongst themselves the general nature of the questions they might ask.

97. There is no foundation in these grounds.

Conclusion

98. For the reasons we have given, we can find no basis for saying that any of these convictions were unsafe or unsatisfactory. The judge approached the evidence with care and gave detailed assessment to it before concluding, as he was fully entitled to do, that guilt was established beyond a reasonable doubt.

99. The applications are dismissed.

Representation:

Mr. John Reading, S.C., S.A.D.P.P. and Mr. Kevin Zervos, S.G.C. for D.P.P./Respondent.

Mr. Gary Plowman, S.C. instructed by Paul T.S. Lam & Co. for 1st Applicant.

Mr. Michael Lunn, S.C., instructed by Paul T.S. Lam & Co. for 2nd Applicant.

Mr. Andrew Macrae, S.C., instructed by Oldham, Li & Nie for 3rd Applicant.

Mr. Philip Dykes, S.C. and Mr. Philip Wong instructed by Anthony Kwan & Co. for 4th and 5th Applicants.

Applications by the 5 accused dismissed by Court of Final Appeal and leave to appeal out of time dismissed by Court of Final Appeal. Please refer to FAMC32/1999 and FAMC33/1999 dated 11 January 2000