HKSAR v. Wong Wang Sang Stephen and Another
Read the full judgment text of CACC 310/2006 on BabelCite. This Court of Appeal judgment was delivered on 3 September 2008.
1. The applicants (D1 and D2) were each convicted after a trial in the District Court before Judge Geiser of two offences of conspiracy to steal (being Charges 2 and 3) and of an offence of conspiracy to defraud (being Charge 4). D1 was additionally convicted of a further conspiracy to steal (being Charge 1). Each was sentenced to a total of six years’ imprisonment and they now seek leave to appeal their convictions.
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CACC310/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. CACC310 OF 2006 (ON APPEAL FROM DCCC NO. 599 OF 2005) ----------------------
---------------------- Before : Hon Stock JA, McMahon J and Barnes J in Court Dates of Hearing : 24, 26 and 27 June 2008 Date of Judgment : 3 September 2008 ---------------------- J U D G M E N T ---------------------- Hon McMahon J (giving the judgment of the Court) : 1.The applicants (D1 and D2) were each convicted after a trial in the District Court before Judge Geiser of two offences of conspiracy to steal (being Charges 2 and 3) and of an offence of conspiracy to defraud (being Charge 4). D1 was additionally convicted of a further conspiracy to steal (being Charge 1). Each was sentenced to a total of six years’ imprisonment and they now seek leave to appeal their convictions. 2.The charges were as follows :
3.The prosecution case was that at all material times D1 was the chairman of a listed company in Hong Kong, Skyworth Digital Holdings Ltd, which was the victim of the 4th charge of conspiracy to defraud and which had a number of subsidiaries including Skyworth Computer & Network Co. Ltd, the victim of the 2nd charge of conspiracy to steal, Skyworth Digital Technology (Holding) Co., Ltd, the victim of the 3rd charge of conspiracy to steal and Skyworth (Group) Co., Ltd, the victim of the 1st charge of conspiracy to steal. D2 was an executive director of Skyworth Digital Holdings Ltd and both D1 and D2 were executive directors of the subsidiary companies. We will refer to the Skyworth group of companies generically as Skyworth. 4.D1 had founded Skyworth, which had originated as a family company but, through Skyworth Digital Holdings Ltd, had achieved a listing on the main board of the Hong Kong Stock Exchange on 7 April 2000. D1 and D2 are brothers and the person Lo Yuk Ping (“Lo”) referred to in the charges is their mother. Wong Pang was her personal assistant and driver. The business of Skyworth was electronics and a large part of that related to the manufacture of television sets. 5.The prosecution case against D1 and D2 was that by using the device of consultancy agreements (called service contracts) in the name of Wong Pang, they purported to pay the sums of money specified in Charges 1 to 3 and issued the shares particularised in Charge 4 to Wong Pang in return for services rendered by him pursuant to those agreements. There were two service contracts, one dated 1 November 2000 (Exh. P11) and the other 11 January 2001 (Exh. P12). They were in similar terms though Exh. P12 incorporated some additional provisions concerning the payment of commission and the applicable law. 6.Wong Pang had, however, performed no consultancy work pursuant to the service contracts and had merely signed those documents and other documents, including bank account and stock trading account opening documents and documents relating to the operation of those accounts, when placed before him by Lo. Lo thereby controlled those accounts. 7.The monies paid and the shares issued under the service contracts were forwarded to those bank and security companies’ accounts in the name of Wong Pang which were under the control of Lo and subsequently distributed by her to accounts controlled by herself, D1 and D2, and those monies and share proceeds were then utilised for their own benefit. 8.The defence case did not dispute that Wong Pang had been used as a mere signatory for the purpose of the service contracts, or that payments from Skyworth for consultancy work allegedly done under the service contracts had been paid into bank accounts in Wong Pang’s name. Nor did it dispute that the shares the subject of Charge 4 had been issued by Skyworth in the name of Wong Pang under those same service contracts. 9.The defence case was essentially one of explanation. It was that genuine and valuable consultancy work had been done in the Mainland on behalf of Skyworth by two individuals, Chen Xiang Xing (“Chen”/DW1) and Zhai Yong (“Zhai”/DW2) who, for their own reasons, did not want either their identities or their income from that work divulged and had asked D1 and D2 to provide a nominee or agent for the purpose of signing the service contracts (although there was some inconsistency in the defence case as to who was responsible for obtaining the services of Wong Pang), and receiving payment of monies and allocation of the Skyworth Digital Holdings Ltd shares on their behalf. 10.To establish their case both D1 and D2 gave evidence as did Chen and Zhai. So did various other witnesses who said they had dealings with Chen or Zhai in relation to Skyworth business. These latter witnesses were, in particular, DW6 to DW9. 11.It is worthy of note that this defence had not been in any way notified to the prosecution prior to or during its case at trial, and the prosecution therefore set out to prove simply that Wong Pang was a person of straw who had done no consultancy work, had simply signed documents on the instructions of Lo and had received no part of the monies paid under the service contracts, but that those monies had eventually gone into accounts controlled by D1, D2 and Lo. 12.The grounds of appeal advanced on behalf of both D1 and D2 were numerous but can be reduced to the following three areas of complaint :
The failure to challenge 13.The defence argument was essentially that prosecuting counsel (of whom there were two) breached the rule in Browne v. Dunn (1894) 6 R 67 by failing to put to DW6 to DW9 that their evidence of having dealings with Chen and Zhai in their capacity as consultants for Skyworth was disputed. 14.In very brief summary DW6, DW7 and DW9 were middle ranking sales executives of Mainland electronics companies in 2000 and 2001, who each said they had dealings with Chen (DW6 and DW9) or Zhai (DW7) as consultants for Skyworth. DW8 was a Skyworth engineer in Shenzhen. He attended a meeting in 2000 in Shenzhen at which D1 was said to have announced Chen as having joined Skyworth as a consultant. 15.Mr Jones suggested that the issue as to whether Chen or Zhai were acting as consultants for Skyworth was fundamental, for if they were or might have been then the prosecution case against D1 and D2, on the specified charges of conspiracy to steal and conspiracy to defraud was, at the least, seriously undermined. If the prosecution disputed this evidence then that should have been put to each witness. Not doing so was a clear breach of the rule in Browne v. Dunn. The prejudice which flowed from this breach, according to Mr Jones, was that defence counsel was misled into believing that the prosecution accepted that Chen and Zhai were in fact consultants for Skyworth as the defence asserted and that there was therefore no need for the defence to call further available witnesses going to prove Chen and Zhai were consultants for Skyworth. 16.Mr Jones further asserted that in any event if the prosecution had properly put its case to DW6 and DW9 to the effect that their evidence concerning Chen and Zhai was disputed, those witnesses may have been in a position to support their evidence by some further proof. Further, said Mr Jones, the prosecution in its final submissions then wholly reversed its position as put in the cross-examination of DW6 to DW9, during which no allegation of those witnesses lying had been made, and went much further by alleging that all of the defence witnesses including DW6 to DW9 were part of a collusive scheme to generate a false defence. Mr Jones complained that the judge accepted this contention and rejected the defence case on that basis. He said that this was unfair as no such allegation of collusion had been put in cross-examination by the prosecution. 17.Essential to this argument is the assertion that the prosecution did not properly or sufficiently put its case to DW6 to DW9. In its cross-examination of earlier defence witnesses D1 and DW1 to DW5 (who together with DW6 to DW9 gave evidence in D1’s case) and later D2 when he gave evidence in his own case, the prosecution had consistently put to D1, DW1 to DW5 and D2 that it did not accept any part of their evidence so far as it suggested Chen or Zhai had acted as consultants for Skyworth. However in cross-examination of DW6 to DW9, prosecuting counsel had not specifically put to those witnesses that their evidence of dealing with Chen and Zhai as consultants for Skyworth was untruthful. 18.At the conclusion of the evidence of DW6, counsel for D1 pointed out to the court that there had been a different approach taken by the prosecution in its cross-examination of DW6 as compared to its direct assertions to previous defence witnesses that they were not telling the truth. 19.Defence counsel said in this regard :
20.Prosecuting counsel’s response to this was as follows :
21.The position taken by prosecuting counsel was consistent with what had been said to the court as to the prosecution case at an earlier stage during defence counsel’s re-examination of Chen. 22.At that time this exchange occurred :
23.Subsequently the court made this ruling :
24.It was therefore quite obvious from an early stage in the presentation of the defence case that the prosecution had restricted their allegations concerning Chen’s and Zhai’s role with Skyworth to the simple proposition that whatever the nature of that role it had nothing to do with the Wong Pang service contracts. Nor was there anything inconsistent with that stated position in the prosecution’s cross-examination of DW6 to DW8. Each was questioned in some detail concerning their evidence of dealing with either Chen or Zhai as Skyworth consultants. Those questions were couched in such a way as to leave no doubt that their evidence was not accepted. 25.In respect of DW6, for example, the following cross-examination took place regarding the witnesses’ claim that he met Zhai in his capacity as a Skyworth consultant :
and in respect of Zhai :
26.In respect of both Chen and Zhai, counsel pointed out the improbability of DW6 having business dealings with Chen and Zhai in terms of their evidence in chief without any record of those dealings being made :
similarly, in respect of DW7:
27.In respect of DW8 both of the two main areas of his evidence supporting Chen and Zhai’s acting on bahalf of Skyworth were clearly disputed by the prosecutor. The first area related to a letter concerning Chen’s role as a Skyworth representative purportedly sent to DW8 by Chen in October 2000. The prosecution case was that this letter was one of a chain of fabricated documents :
28.The second area related to DW8’s evidence was that a meeting had been held with about 30 people present welcoming Chen to Skyworth as a consultant. That evidence was explored as follows :
29.In the end result it was quite obvious the prosecution did not accept DW6 to DW8 as witnesses of truth. 30.In Browne v. Dunn, Lord Hershell stated the requirement for cross-examining counsel to sufficiently put his case to a witness in this way :
31.Compliance with the principle of Browne v. Dunn does not require counsel to indulge in a mantra of questions with witness after witness in a formulaic display. All that is required is that counsel puts his case in such a way as to challenge the witness on those salient points of his evidence with which issue is taken. That challenge does not have to be express. It can be inferential so long as it is made clear that those particular aspects of the witnesses’ evidence are not accepted : see HKSAR v. Lo Chun Nam [2001] 4 HKCFAR 1. 32.For present purposes we are satisfied that counsel went far enough in his cross-examination of DW6 to DW8, given the particular circumstances of each witnesses’ evidence and the clearly stated nature of the prosecution case. 33.The cross-examination of DW9 was in a slightly different category. Compared with the approach taken with DW6 to DW8, the prosecutor was far less clear that DW9’s evidence was in issue, though there was some cross-examinationsuggesting the witnesses’ primary evidence that Chen had been instrumental in Skyworth purchasing a large number of cathode ray tubes for use in television sets from the witnesses’ company was disputed. By this stage of proceedings however, and DW9 was the last of this ilk of witness, it must have been perfectly obvious to the defence that although the prosecution could not categorically put to individual witnesses that they were lying in regard to their evidence that Chen or Zhai had acted in some form of representative or consultancy capacity for Skyworth, the evidence of those witnesses was not necessarily accepted by the prosecution as being true, and in any event was evidence which fell short of undermining the prosecution case that Chen and Zhai, if ever representatives for Skyworth, had not used Wong Pang to enter into service contracts with Skyworth on their behalf. 34.It must have been apparent that the prosecution case had consistently asserted that Chen and Zhai, whatever any role they had with Skyworth was concerned, had never been consultants under the service contracts, and had never been entitled to or paid any part of the monies transferred or shares issued in purported compliance with those contracts. In those circumstances we are of the view that there was no breach of the principle in Browne v. Dunn. It was unnecessary for the prosecution to put to DW6 to DW9 that they were lying. It was not the prosecution case, as expressed to the court and to defence counsel, that these witnesses were lying. The prosecution’s clearly stated position was that they might have been, but even if they were not their evidence did not undermine the prosecution case that the Wong Pang service contracts were bogus. Given that, there was no reasonable basis for the suggestion advanced before us that defence counsel might have been led to believe that the prosecution accepted that Chen and Zhai were Skyworth consultants. 35.There is one further matter. In the prosecution’s final submissions it was suggested that all of the defence witnesses had lied, including DW6 to DW9, and that from those lies an inference could be drawn that “they had lied as part of a concerted effort to mislead the court” and that “the defendants or people acting on their behalf have deliberately concocted a false story, manufactured forged documents and have suborned witnesses to come from China to tell lies at their trial”. 36.We agree that the prosecution, in attacking the defence case in that general way, went further in regard to DW6 to DW9’s evidence than their earlier stated position of not being able to say whether those witnesses were lying or not. But we do not think that matters, for the simple reason that the judge, in his reasons for verdict, did not adopt those submissions. The judge’s findings remained within the parameters of a proper assessment of the credibility of the individual defence witnesses. In assessing the evidence of DW6 to DW9 he referred to various implausibilities or inconsistencies in their evidence and in his conclusions as to their credibility said as to the defence witnesses generally :
and in respect of DW6 to DW9 :
37.The judge at no stage found those witnesses to be any part of “a concerted effort to mislead the court”, as the prosecution had put matters in their final submission. Rather, the judge had simply rejected the evidence of DW6 to DW9 as he was entitled to do given the original prosecution stance regarding those witnesses and as expressed during the course of evidence. The judge had, in his findings, not gone beyond the prosecution case as expressed during evidence and we are satisfied that in no way had the judge “acquiesced in and associated himself with a breach of proper professional principles” by concurring with any breach of the rule in Browne v. Dunn as asserted by Mr Jones. The judge had also found in respect of the various documents which the defence had produced through D1 and witnesses prior to DW6 to DW9 that :
No complaint can be made in respect of that finding. It was made in the context of defence documentary evidence which the prosecution throughout the defence case, for good reason, had unremittingly described as fabricated and concocted. 38.Complaint is made also as to the judge failing expressly to consider various aspects of the evidence or having misunderstood certain details of evidence. None of these matters was of any particular significance, and the judge’s primary findings and the reasons he gave in support of them rendered unnecessary any specific reference to these aspects of the evidence. Nor was there anything to suggest the judge had failed to understand any material aspect of the evidence. 39.One final matter arose in respect of the grounds advanced under this heading. Mr Jones complained on behalf of both D1 and D2 that the judge took account of hearsay evidence. That evidence concerned material placed before the court during the cross-examination of Chen. The material consisted of a printout from an internet website operated by a company, Focus Ventures Ltd, which named Chen as one of its consultants. The contents of the website were not proven by way of any common law or statutory principle which would have allowed those contents to be evidence of the truth of their assertions. 40.We note the evidence came before the judge not simply by way of the prosecution but also at the insistence of defence counsel, who apparently had his own purpose in wishing for the evidence to be before the court and who was aware to what use the prosecution intended to put this evidence. Nevertheless defence counsel’s stance did not alter the hearsay nature of the evidence. 41.The judge said in taking this evidence into account :
42.The judge’s reference to this evidence occurred after he had already determined in his reasons for verdict that he rejected the defence case that Chen and Zhai were consultants for Skyworth. In that sense the reference to the evidence was something of an afterthought by the judge. Nevertheless, in our view the judge was wrong to place any weight on the evidence as tending to prove in any way Chen was not a consultant for Skyworth, which finding impinged also on the case of D2. It was fundamentally hearsay evidence and was incapable of such proof. This amounted to an irregularity, and given the judge’s reference to it in the context of his finding as to Chen’s credibility we required, after the hearing had concluded, written submissions from counsel as to the application of the proviso. 43.Mr Jones argued in this regard that the judge’s use of the evidence directly undermined the defence case on the issue as to whether Chen and Zhai were consultants and that as a consequence it could not be said that the judge would inevitably have arrived at the same conclusion in the absence of the complained of evidence. 44.In the preceding passages of his reasons for verdict, the judge had set out a number of other reasons for his rejection of the defence evidence, including that of Chen, that Chen and Zhai had been consultants for Skyworth. Those matters encompassed the judge’s findings as to a considerable range of fundamental improbabilities underlying the defence case and in particular included his finding that the documents produced by the defence in support of their case and purportedly written by Chen were forgeries, and the compelling fact that neither Chen nor Zhai apparently figured in the documented flow of funds purportedly paid to them as commission through various bank accounts or as proceeds of the sale of shares issued to Wong Pang under the terms of the service contracts. 45.In our judgment the effect of the admission of the challenged evidence pales into insignificance in the context of the whole of the substantial and persuasive reasons the judge gave in rejecting the defence evidence, including that of Chen, that Chen was a consultant for Skyworth working under the Wong Pang contracts. Those reasons were convincing in our view and in the absence of the complained of evidence we are satisfied the judge’s finding in this regard would inevitably have been the same. We have no hesitation in applying the proviso to section 83(1) of the Criminal Procedure Ordinance in respect of this ground. The rebuttal evidence 46.Mr Jones complained that the prosecution was wrongly allowed to call rebuttal evidence from an expert on the Chinese law of agency. Matters arose in this way : the defence case was that Chen and Zhai, after accepting Wong Pang as their nominee who signed the service contracts on their behalf, had become concerned as to whether their interests were sufficiently protected under those contracts. 47.In December 2000, according to this evidence, Chen and Zhai consulted a Mainland lawyer, Mr Xin (DW5) in Shenzhen. They showed him a copy of their then service contract (Exh. P11) and DW5 advised that it did not sufficiently do so. He advised them to have a further contract signed by Wong Pang specifying Chinese jurisdiction as that applying to matters arising under the contract and to have a further agreement signed with Wong Pang which bound him as their agent for the purposes of the service contracts. 48.A new service contract (Exh. P12) was signed by Wong Pang with the jurisdictional term included, but instead of having Wong Pang sign any document acknowledging his status as Chen and Zhai’s agent they, because they said they did not know him, had Lo sign a document linking them to the service contracts which became Exh. D1-47. That document was signed on 11 January 2001 by Zhai and by Lo, though inexplicably never by Chen, and was purportedly witnessed by DW5 in Chen’s presence. 49.The prosecution alleged that Exh. D1-47 was a recent fabrication designed to lend belated support to the defence case that Wong Pang had been acting in some sort of agency capacity on behalf of Chen and Zhai. Not the least of their attack on this document was directed at Chen’s evidence that although he had not signed Exh. D1-47 he had been present in DW5’s office in Shenzhen on 11 January 2001 when it was signed by Zhai and Lo and witnessed by DW5. However, Chen’s passport, which had been produced in evidence, established conclusively that Chen had been in the United States of America from 3 to 15 January 2001. An avenue of attack on DW5’s evidence was simply to the effect that his claimed advice to Chen and Zhai and his approval of Exh. D1-47 as “linking” Chen and Zhai with the Wong Pang service contracts and as to the capacity of the Wong Pang service contracts to create a form of agency, was so fundamentally wrong in terms of Mainland law that it was unlikely to have been given. 50.Mr Jones’ complaint was that the question as to whether DW5’s evidence was correct in law was a collateral issue and that the important issue raised by DW5’s evidence was whether Chen or Zhai had ever consulted DW5 concerning the Wong Pang service contracts, Exhs. P11 and P12. If they had, of course, that would go some way to “linking” them with those contracts. Mr Jones argued that the judge erred in allowing the rebuttal evidence because the effect of it was really to impeach the credit of DW5 and hence, on this basis, was merely directed at a collateral issue. 51.The judge, in ruling the evidence admissible, said :
52.Pursuant to that ruling the prosecution called a Mainland professor (PW18) whose evidence, it is fair to say, wholly undermined any notion that the documents Exhs. D1-47, P11 and P12 could ever have evidenced or created any relationship of agency involving Chen, Zhai and Wong Pang. Following PW18’s evidence the defence sought and were granted leave to re-open their case on this issue and called another mainland professor (DW10) in response to PW18. The judge, in the end result, wholly rejected the evidence of DW10 and accepted that of PW18. 53.The defence case was that the service contracts, Exhs. P11 and P12 signed by Wong Pang, when taken together with Exh. D1-47, created or evidenced a relationship of agency between Chen and Zhai on the one hand and Wong Pang on the other. It was that relationship which was relied upon to link Chen and Zhai with the Wong Pang service contracts and which validated the monies paid out and the shares issued as particularised in the charges. 54.In those circumstances the question as to whether DW5’s advice to Chen and Zhai was consistent with Chinese law was relevant to the simple issue as to whether the documents in fact were capable of creating the agency urged by the defence. That issue was not collateral. It was perhaps not the most fundamental issue the judge had to resolve, but the capacity of the documents to establish or evidence the agency relationship asserted by the defence was not a question of mere credibility but was relevant to the core of the defence case. If they were capable of so doing then, subject to the separate question of fabrication, they would inevitably have raised a doubt as to the prosecution case. 55.If, on the other hand and as the prosecution alleged, DW5’s claimed advice that the documents did create or evidence an agency was nonsense, then it strengthened the prosecution’s assertion that no such advice had been given. The evidence satisfied the test enunciated by Pollock C.B. in Attorney General v. Hitchcock (1847) 1 Ex 91, at 99 :
56.We might also add this : in our view the evidence called by the prosecution plainly satisfied the test as to the admissibility of rebuttal evidence where a matter has arisen ex-improviso : R. v. Pilcher [1974] 60 Cr. App. R. 1; R. v. Francis [1990] 91 Cr. App. R. 271. That was so in the circumstances of the present case where, perhaps ironically, defence counsel failed to put to any prosecution witness their cases that Wong Pang was an agent of the two consultants Chen and Zhai. The prosecution had no notion and no fore-warning that it was to be alleged in the defence cases that this was so. Rightly, no complaint was made before us as to the subject matter of the rebuttal evidence arising ex-improviso, the only issue before us being as to whether it related to a merely collateral matter or not. 57.Mr Jones complained also that even if the evidence of PW18 was rightly admitted, the judge was wrong to accept his evidence and reject that of the defence expert, DW10. In that regard the judge, in his reasons for verdict, noted that DW10 had agreed with the fundamental proposition put to him by the prosecution that before an individual can become an agent under Chinese law he must agree to become an agent and be willing to undertake the duties of an agent. It had been Wong Pang’s unchallenged evidence during the prosecution case that he had merely signed documents put before him by his employer, Lo, and was ignorant of their contents. It was never suggested that Wong Pang had been aware of or agreed to any relationship of agency between him as agent and Chen and Zhai as principals. 58.DW10, however, thought merely signing a document, as did Wong Pang, on the instructions of another was an indication he was willing to act as an agent. 59.The judge said :
That reasoning seems to us to be firmly grounded in commonsense and the judge was entitled to conclude as he did. 60.Mr Jones complained further, however, in this regard that while PW18 had not read the transcripts of evidence of Wong Pang or DW5, DW10 had done so and that the judge should have taken this into account before accepting PW18’s evidence and rejecting that of DW10. 61.PW18 was provided with copies of Exhs. P11, P12 and D1-47 together with other documents relating to this issue at or prior to the commencement of his evidence in chief. We are satisfied that provided a sufficient and relevant grounding of fact as to the narrow issue upon which he gave his opinion regardless of whether or not he had been provided with either Wong Pang’s or DW5’s transcripts of evidence. 62.The issue was restricted factually and was legalistic. It was simply as to whether the Wong Pang service contracts, Exhs. P11 and P12 taken in conjunction with Exh. D1-47 were capable of evidencing or establishing a relationship of agency under Chinese law (as DW5 had asserted). The witnesses’ opinion that they could not was not necessarily undermined by his not having seen transcripts of the evidence of either Wong Pang or DW5. Nothing was suggested to us in argument as to there being any particular matter in the evidence of either Wong Pang or DW5 of which PW18 was unaware and which, if known to him, may have affected his opinion. 63.The fact that PW18 had not had access to the transcripts of the evidence of either Wong Pang or DW5 was a matter of weight, and given the narrow parameters within which his opinion as to Chinese law was expressed, was in our view a matter of little weight. There was no need for the judge to expressly deal with the issue and this complaint is without merit. We might add this however. The judge in his reasons for verdict did not specifically address the credibility of DW5. In our view it would have been by far the preferable course to do so, but by his finding as to Exh. D1-47 being a recent fabrication and his rejection on other grounds of the evidence of DW1 and DW2 concerning its making and their role as consultants, we are satisfied that it followed that for the same reasons the judge had placed no weight on the evidence of DW5. 64.The final complaint made under this heading is that the judge was wrong to find Exh. D1-47 was not an authentic document. In this regard the judge said, after referring to that part of the cross-examination of Chen which established he was in the United States of America at the time he had said in his evidence he was in Shenzhen observing the signing of Exh. D1-47 in DW5’s office :
65.In the context of the case where there was also substantial evidence before the judge that various handwritten letters produced in evidence in support of Chen and Zhai acting as consultants for Skyworth were recent fabrications and where Exh. D1-47 was said to have been signed by Lo rather than Wong Pang at a time when Wong Pang would have been available to sign it, there was evidential support for the judge’s conclusion. That is particularly so given the terminology used in Exh. D1-47 which suggests it was signed prior to Exh. P11 when, whatever the date of the latter documents making, it plainly had not been. 66.Various other complaints are made concerning the judge’s failure to deal with what can be described as the smaller details of the evidence of DW5 and of PW18. However none of these aspects of the evidence had particular significance and the judge was not obliged to specifically refer to them in his reasons. 67.The grounds of appeal under this heading must fail. The money transfers 68.Mr Macrae, who argued the grounds relevant to this heading, did so on the simple basis that the judge had failed to consider the significance of evidence that there were large flows of funds amongst D1’s, D2’s, Lo’s and Wong Pang’s bank accounts which were independent of the monies paid to Wong Pang particularised in the charges. 69.In short Mr Macrae argued that if there was a history of interconnected fund flows between the bank accounts of D1, D2, Lo and Wong Pang, then there was nothing unusual about large portions of the sums purportedly paid to Wong Pang under the service contracts finding their way into D1 and D2’s personal bank accounts or accounts under their control. Mr Macrae submitted that this aspect of the case was not sufficiently considered by the judge in arriving at his findings concerning D1 and D2’s dishonesty and their intent permanently to deprive. 70.The judge in his reasons said :
and, after considering these findings together with others, concluded :
71.The judge’s reasoning, and the evidence supporting it, inevitably led to the conclusions at which he arrived. The defence case that D1 and D2 had paid those sums of money, and issued Skyworth shares, to Wong Pang and had no idea that their mother, who operated the Wong Pang accounts, had re-cycled a large part of the monies the subject of Charges 1 to 3, and some of the proceeds of the sale of the shares the subject of Charge 4, back into bank accounts under their own control and then absconded with the balance, was not worthy of belief and the judge was entitled to take the evidence of the flow of funds into account against D1 and D2 in the way he did. It should be borne in mind that D1 and D2 used the substantial sums of money they received from the Wong Pang funds in various ways to their own benefit, and those sums were large (even in the case of D2). 72.As Mr Dunn for the respondent submitted, the defence put forward was to the effect that the chairman of a listed company, and a director of that company, in what they understood to be the normal course of business, arrived at a position where their mother had free rein to deal with over $50,000,000 of the companies’ money, and about 1% of its issued shares with no mechanism in place for her to account for those funds, and had placed a large proportion of those funds back under their own control without their knowledge. 73.In our view it matters little to the compelling weight of the flow of funds evidence that the accounts of D1, D2, Lo and Wong Pang had a history of admixture of funds. Indeed that history was something of a double edged sword, so far as the defence case was concerned, and we do not think the prior history of the accounts was a matter necessary for the judge specifically to deal with in his reasons for verdict. This ground also fails. 74.For the reasons we have given in respect of both applications we grant leave, treat the hearing as the appeals, and upon the application of the proviso dismiss both appeals.
Mr John C. Dunn, counsel on fiat, assigned by Department of Justice, for HKSAR Mr Alun Jones, QC, Mr Andrew Macrae, SC, leading Ms Maggie Wong Pui Kei & Mr Victor Cheung, instructed by Messrs Simon C.W. Yung & Co., for the 1st and 2nd Applicants |
Further hearings and rulings under CACC 310/2006