HKSAR v. Chan Yick Yiu

CACC 353/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 353 OF 2011

(ON APPEAL FROM DCCC 1368 of 2010)

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BETWEEN

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Before: Hon Fok JA, Beeson and Macrae JJ in Court

Dates of Hearing: 2 & 6 August 2012

Date of Judgment: 26 September 2012

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J U D G M E N T

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Hon Macrae J (giving the judgment of the Court):

1.The applicant was convicted by Deputy Judge Sham in the District Court on four charges of accepting an advantage, contrary to section 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap 201 (Charges 1, 4, 5 and 9) and five charges of dealing with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap 455 (Charges 17 to 21).  He was sentenced to 3 years imprisonment. He appeals against conviction only.

2.The applicant (who was the 2^nd defendant at trial) joined Industrial and Commercial Bank of China (Asia) Ltd (ICBC) in May 1994.  In 2004, he became the Real Estate Finance Head of the Corporate Banking Department, a position he was to hold until he left ICBC on 4 January 2009 in order to join Wing Lung Bank the following day.  In his capacity as Real Estate Finance Head, the applicant was responsible for handling corporate clients of ICBC, including processing their applications for loans, renewals and extensions of time for payment.

3.The 3^rd defendant, Zeng Wei (D3), who absented himself from the trial, was one of the corporate clients of ICBC.  On about 3 August 2006, D3 made an application on behalf of his company, Kostar Investments Limited (Kostar), for a three-year term loan in the sum of US$65 million from ICBC; with another of his companies, United Win Holdings Ltd (United Win) acting as the guarantor of the loan.  The applicant was responsible for handling the application and endorsed the credit proposal recommending approval of the loan.  On 10 August 2006, the loan was approved by the Credit Committee and the Chief Executive Officer (CEO) of ICBC. The loan was drawn down by the end of October 2006: it was to be repaid by 9 quarterly instalments, the final maturity date being 28 September 2009.

4.On about 1 March 2007, D3 applied for a six-month bridging loan of HK$200 million for Kostar; with United Win again acting as the guarantor.  The applicant again endorsed the credit proposal and on 13 March 2007 the loan was approved by the Credit Committee and the CEO of ICBC.  The loan was drawn down on 23 March 2007.

5.On about 2 October 2007, D3 applied for a five-year term loan in the sum of HK$2000 million on behalf of another company investing in property development in Beijing.  The applicant again endorsed the credit proposal but the application was initially rejected.  On 14 November 2007, the application was re-submitted and the applicant again endorsed the proposal. On 16 November 2007, the loan was approved by the Credit Committee and the CEO of ICBC, the applicant being one of the signatories to the loan agreement.  The loan was drawn down in two tranches, in May and October 2008, to be repaid in 17 quarterly instalments beginning in May 2009, the last maturity date being 2 May 2013.

6.D3 subsequently applied to extend the due dates of the two loans to Kostar.  Three of the applications were jointly endorsed by the applicant and Chan Po Fui (D1), while the other three were endorsed either by the applicant or D1.

7.It was an admitted fact that between 17 June 2009 and 20 March 2010, the applicant deposited five sums of cash totalling HK $79,000 into his HSBC account; between 23 April and 18 November 2009, he deposited five sums of cash totalling HK$250,000 into his ICBC account; between 20 March 2009 and 8 April 2010, he deposited nine sums of cash totalling $370,000 into his BOC account; between 20 March and 30 November 2009, he deposited six sums of cash totalling $250,000 into his CCB account; and between 27 February 2009 and 26 March 2010, he deposited 10 sums of cash totalling $336,000 into his Wing Lung Bank account.

8.Not surprisingly, and in conformity with the practice of most banking institutions, staff members of ICBC were not allowed to solicit or accept advantages including gifts, money and loans in connection with their duties, without the explicit permission of ICBC.  It was not suggested in this case that the applicant had ever sought permission from ICBC to accept advantages from D3.

9.None of this evidence would have been sufficient without proof that the applicant had in fact received the items particularised in the four section 9 offences from D3.  In this regard, the prosecution relied upon four records of interview and a notebook entry to establish that the applicant had received the advantages alleged.  The applicant objected to the admissibility of these documents, as a result of which the deputy judge conducted a voir dire.  It might be noted, in the light of a discrete ground of appeal which alleges that the records of interview and notebook entry were not properly proved by virtue of the failure to recall certain ICAC officers to the witness box after the ruling as to admissibility, that a trial within a trial was held rather than a voir dire by way of alternative procedure. 

10.It will be necessary to consider the complaint that the records of interview and notebook entry were improperly admitted (or not properly proved) at the outset of this judgment: not only is it a substantial ground of appeal but, since the case stands or falls with the admissions, it is one which logically preempts the other grounds.  For present purposes and assuming admissibility, however, the applicant did make admissions in that evidence that he received the gifts specified in the particulars of the four section 9 offences; namely, three bottles of Chateau Lafite Rothschild 2001 and a Bvlgari watch (Charge 1), two bottles of Chateau Lafite Rothschild 1999 (Charge 4), HK$500,000 in cash (Charge 5) and HK$2 million in cash (Charge 9).   

11.In his evidence, the applicant accepted that D3 had given him the items particularized in Charge 1 on several different occasions in 2007 and 2008; that the items in Charge 2 were received during Chinese New Year 2009 (which fell at the end of January of that year); that the cash in Charge 5 was handed to him on about 11 February 2009; and that the cash in Charge 9 was given to him in around August 2009.  It is, therefore, common ground that the applicant could only have received the items particularised in Charge 1 while he was actually working at ICBC: however, by the times averred in Charges 4, 5 and 9, the applicant would already have left the employment of ICBC.

12.Mr Egan, who appears for the applicant on this appeal as he did for him at trial, advances a number of perfected grounds of appeal.  It will be convenient if we consider those grounds in three main groups: the first concerns the attack on the admissibility of the records of interview and notebook entry (ground 4) and the failure to recall the ICAC officers to produce (or prove) the said documents in the general issue (ground 5); the second concerns the principal point that the applicant was no longer working at ICBC by the time the gifts cited in the charges were given to him (ground 2), that there was no evidence in such circumstances of any intention by him to accept an advantage (ground 1) nor evidence from which one could properly infer that the transactions were corrupt (ground 3); and the third concerns the complaints that Charges 17 to 21 should have been stayed (ground 6), that these charges misapplied the offence to continuing acts of dealing (ground 7) and/or, alternatively, that the charges were bad for duplicity (ground 8).  Not fitting precisely into those three groups fall the complaints about Charge 1 being bad for duplicity (ground 9) and the reliance said to have been made by the judge on section 11 of the Prevention of Bribery Ordinance (ground 10).

13.We turn to consider the first group of perfected grounds.

Grounds 4 and 5

14.The section in the Judgment of the deputy judge dealing with the voir dire and addressing the admissibility of the four records of interview as well as the notebook entry of the arresting officer covers over 9 pages (or one fifth) of the Reasons for Verdict. Such a statistic is not, of course, determinative.  However, the deputy judge set out all of the allegations made against the relevant ICAC officers and summarised the applicant’s evidence.  He specifically addressed an issue which emerged on the record during the first interview and which the defence submitted was redolent of ICAC officers bringing subtle pressure to bear on the applicant to dispense with the presence of a lawyer.  The deputy judge, as a native Cantonese speaker, said he was unable to agree with the submission and explained why. 

15.He further said that he did not accept the applicant’s evidence and was sure that his allegations of impropriety were an afterthought, as well as being both false and unbelievable.  He considered the applicant an experienced banker in a high position of the bank and not someone given to naivety, simple-mindedness or inexperience.  The deputy judge found that the applicant knew and understood his right of silence and his right to have a lawyer present but formed the view that the applicant had cooperated with the ICAC, not because of anything improperly said or done to him by officers, but because of an eagerness on his part to tell his side of the story, probably thinking that what he had done was not against the law. 

16.In submissions before us, Mr Egan has listed seven particular matters of evidence which were not dealt with by the deputy judge but which he says should have been dealt with.  It is true that none (save for the issue of dissuading the applicant from calling a lawyer) was specifically addressed by the deputy judge in his Reasons for Verdict.  But nor we are persuaded that he was unaware of these matters.  The strongest point on the face of it seems to be a discrepancy between the first ICAC officer (PW1) who said that before the applicant signed his notebook, he hesitated; whereas neither the second nor third ICAC officer (PW2 nor PW3) noticed him hesitate.  We have looked at the passages in the evidence of the three witnesses concerned but confess to being rather underwhelmed by their import.  PW1 said somewhat vaguely that the applicant did hesitate for some time but, as to whether it was 10 minutes, he could not say.  PW2 saw the applicant reading the notebook to himself before signing it but did not consider him hesitant.  PW3 said he did not find the applicant hesitant. 

17.These variations in perception, particularly as to how someone who is looking at or reading a document may or may not manifest hesitation in what he is doing, hardly surprise us.  The deputy judge specifically addressed the allegations made against the officers at the applicant’s office (which were said to have caused the applicant’s hesitation) but did not believe them.  He considered that:

“Basically the issue of the matter boils down to the question of credibility of witnesses. (The applicant) testified to all the allegations of misconduct but they were categorically denied by the officers concerned.”

18.In our judgment, the deputy judge’s reasoning on the issue of admissibility cannot sensibly be impugned and was commensurate with the issues that were before him.  We are well able as the appellate Court to understand his evaluation of the evidence on the voir dire and the process of reasoning by which he came to make his ruling.  We consider that there is no merit in ground 4.

19.It is contended by ground 5 that, since the court was conducting a voir dire by way of a self-contained trial within a trial rather than the alternative procedure, it was incumbent on the prosecution, after the ruling had been made in its favour, to recall the officers concerned to produce formally the four records of interview and the notebook and to then submit the witnesses for cross-examination on the general issue.  Since none of the officers was recalled after the ruling, it is argued that there was a material irregularity in the conduct of the trial which prevented the defence from cross-examining the witnesses on the general issue and also prevented defence counsel from further cross-examining the witnesses as to discrepancies between all of them during the voir dire.

20.With respect, this argument is devoid of substance and common sense.  Whether the court was conducting a voir dire by way of trial within a trial or alternative procedure did not change the essential nature of the jurisdiction of a judge sitting in the district court, who was judge of both fact and law.  Since he was the trier of both fact and law, it was both impractical and unnecessary for the evidence to be repeated before him: see Reg v Liverpool Juvenile Ct, Ex p R (DC) [1988] 1 QB 1.  If, for whatever reason, defence counsel wished to ask certain questions of the officers involved in the voir dire relevant to the general issue (or, indeed, relevant to their earlier evidence on the special issue), he should have requested prosecuting counsel to call them; failing which, he should have raised the matter with the deputy judge.  He did neither.  There is no substance in ground 5.

Grounds 1, 2 and 3

21.Having determined that the applicant’s admissions were properly admitted into evidence, we turn to the second group of perfected grounds of appeal and the central complaint made against the validity of these convictions, namely that by the time the advantages were given and received, the applicant was no longer an agent of ICBC (ground 2).  This argument does not, however, relate to Charge 1, the gifts having been given to the applicant whilst he was still working with ICBC.  However, in relation to all of the section 9 offences, it is argued that there was no evidence of any intention on the applicant’s part to accept an advantage from D3 (ground 1) and no evidence from which one could properly infer that the transactions were corrupt (ground 3).  It will be convenient if we address ground 2 first.

22.There is a superficial attraction in the argument that by the time the applicant had been given the two bottles of Chateau Lafite Rothschild 1999 (Charge 4), the HK$500,000 in cash (Charge 5) and the HK$2 million in cash (Charge 9), he had already left ICBC for other employment by one month (Charge 4), six weeks (Charge 5) and around eight months (Charge 9) respectively and was no longer the bank’s agent.  However, an advantage may be given prospectively (as an inducement) or retrospectively (as a reward) under the Ordinance.  In Charges 4, 5 and 9 the advantage concerned was particularised as a reward which, in each case, was said by the Opening of the prosecution to have been given “for the assistance rendered by (the applicant) in relation to the loan applications of Kostar and Shine City”.  Clearly, the prosecution case was averred and presented as one in which the advantage would follow the applicant’s act(s) in relation to his principal’s affairs.

23.We accept that there could be a situation where something may look like an advantage but be so attenuated by circumstance or by the effluxion of time or by a change in relationship that it would be straining the legislation to hold that the transaction was corrupt.  That, however, is not the position here.  It is clear from at least three of the applicant’s records of interview that by the time the HK$2 million in cash (which was the latest advantage in time) was given to the applicant, he had not begun to conduct any business with D3 or his companies on behalf of Wing Lung Bank.  In the third interview, the applicant (who was C on the transcript) was directly asked:

“A  … Well then, so er, regarding the said, let’s talk about the said, er, two mi-, two million, that is, the two million mentioned earlier in your second interview and in the notebook. Well er, in er, can (you) tell (us), (I) mean, the process, (I) mean, for example er, in 09, you said that at the end of 09, (you) would, (you) received the –

C  Er, it should be in 09, yeah, at the end of 09, something like, something like that.

A  Uh. Well er, can (you) tell us say something about the process, (I) mean, for example, during the second interview, you mentioned that one day, ah Mr ZENG (D3) er, called you, and said that there was something for you, [C: Mm.] uh. Well, because, look, we’re talking about September 09, er, well, actually, you’d already joined Wing Lung Bank for a period of time.

C  Yes, that’s right.

A  Well, counting from the time you er, you previously worked in ICBC Asia, (I) mean, had it been a period of time perhaps.

C  Yeah.

A  So how come you would come to the idea that (it) was related to the loan taken out from ICBC Asia? [C: Er - ] Or was (it) related to what you, in Wing Lung Bank –

C  No, because in Wing Lung, I actually had yet started any business with him, right?

A Yes.

C  Well, my rather in-, intuitive feeling was that, (I) mean, he, (I) mean, offered this gift to me possibly because I’d previously, (I) mean, (I) mean, actually, helped in the work of taking out loans for the whole group.  [A: Mm] Maybe he thought that I could help him, and so (he) did this thing.”

24.In the fourth interview, the applicant was specifically asked what his state of mind was at the time he accepted the HK$500,000 in cash.  He answered:

“C Er, I, at that time thought, the same as er, the state of mind at the time of (accepting) two million. [A: Right.] It was also, I thought he might be, that means, for, for (expressing) thanks for my, that means, previous assistance in handling the loans for him. [A: Em.] Therefore, er, that’s right, that means, he wanted, well, wanted to, er, improve (my) life, environment, that way. [A: Em.] Well, some money was given to me.”

25.It is true that on occasions the applicant did say that he had given D3 certain advice which D3 had found useful in relation to his businesses in general terms, that they were friends and that the money had been given in friendship.  However, the unmistakable thrust of these records of interview is that the applicant and D3 enjoyed not so much a close, personal friendship as the sort of friendly, working relationship one might well expect between a banker and his client who have worked gainfully and successfully on a number of previous occasions.  There was no evidence that their relationship transcended the workplace or that their respective families were close: indeed, the applicant said in evidence that his own wife had no idea that he had even been given HK$2.5 million in cash by D3, HK$500,000 of which was kept at home.  In our judgment, it would be fanciful to accept that the applicant could have regarded D3’s beneficence as unconnected with his own actions as an agent of ICBC.  On the contrary, the passages in the transcripts to which we have referred make it clear that he must have known they were connected and that he was being rewarded for assisting D3 and his companies with their loan applications.

26.The deputy judge, having considered the applicant’s evidence as well as his admissions in the records of interview, concluded as follows:

“I find as a fact that while (the applicant) was still working for ICBC, (he) and D3 reached the agreement or understanding of deferred rewards that (the applicant) would be rewarded later for what he did in the loan matter, they were doing so on the basis that (the applicant) believed he did help D3 and also realised that D3 thought so too and the gifts given to (the applicant) were relating to his help in endorsing credit proposals recommending the approval of the loans made by D3 to ICBC. The rewards including substantial sums of money were clearly related to the loans handled by (the applicant) and thus were aimed at the affairs or business of (the applicant’s) principal, ICBC.”

27.Given the sheer scale of the gifts bestowed by D3 on the applicant at a time when he had very recently left the employment of the bank and when there could be no sensible explanation for D3’s largesse other than as rewarding the applicant for what he had done for D3 and his companies as an agent of ICBC, the deputy judge’s conclusion and the inferences which flowed therefrom were obvious and compelling.

28.In argument before us, Mr Egan accepted that there were essentially three possible inferences open to the deputy judge on the evidence in this case.  Firstly, such gifts were made in contemplation of D3 seeking to transfer his banking business to the applicant at the Wing Lung Bank and therefore had nothing to do with his former work at ICBC.  Secondly, D3’s largesse was given out of simple generosity between friends unconnected with the applicant’s work at ICBC.  Thirdly, the gifts were given pursuant to a corrupt arrangement between D3 and the applicant involving ICBC.  Ms Wan, for the respondent, has argued convincingly that the first two possibilities were wholly unfounded and unrealistic on the evidence and in the circumstances of this particular case.  The only reasonable inference was, as the deputy judge found, that these gifts were given by D3 to the applicant pursuant to an agreement or understanding that the applicant would be rewarded by D3 for his assistance in obtaining the IBCB loans.  There is no merit in ground 2.

29.Our views on this particular ground effectively dispose of the argument under grounds 1 and 3.  For if, as we think it was, the only reasonable inference to draw from the facts was that the gifts were made pursuant to a corrupt agreement or understanding between D3 and the applicant, then not only does it follow that both men knew what the arrangement was but there was nothing speculative about the deputy judge’s conclusion.  Grounds 1 and 3 must also fail.

Ground 9

30.It will be convenient to deal at this juncture with the complaint that Charge 1 was void for duplicity.  The complaint is that since there were three bottles of wine (which the applicant testified were given to him separately in 2007 and 2008) and a Bvlgari watch (which was also given at around the end of 2007) included in the same particulars, the four items given on four different occasions should not have been included in the same allegation.  It is submitted that even the prosecution averment in the charge was that the acceptance of the gifts had taken place “on two days”. Accordingly, it is argued that on either case the charge particularized at least two separate courses of conduct; and the charge was thereby duplicitous.

31.We cannot agree with this argument for the very reasons articulated by the deputy judge when a similar submission was made to him.  Where two or more acts of a similar nature committed by one or more defendants are connected with one another in the time and place of their commission, or by their common purpose, in such a way that they can fairly be regarded as forming part of the same transaction or criminal enterprise, they can be charged as one offence in a single count in an indictment: see DPP v Merriman [1973] AC 584 at 607.  The charges were not duplicitous and ground 9 must fail.

32.We turn now to the third area engaged by this appeal and the grounds of appeal relating to Charges 17 to 21, which grounds we shall deal with in turn.

Ground 6

33.Mr Egan argues that these particular charges should have been stayed as an abuse of the process of the court because, as the deputy judge remarked when sentencing, the charges added nothing to the criminality alleged by the section 9 offences and, furthermore, it was oppressive to charge the applicant with a principal offence of corruption and then to add a further (more serious) offence arising out of his possession of the proceeds of that corruption.  Mr Egan relies on the recent decisions of the New South Wales Court of Criminal Appeal in Thorn v The Queen (2009) 198 A Crim R 135 and Nahlous v The Queen (2010) 201 A Crim R 150.

34.It is not necessary in this judgment to consider the applicability of these decisions to sentencing policy in Hong Kong.  For the facts of both authorities are wholly distinguishable from the circumstances of the present case.  In Thorn, at 142, “the applicant was merely transferring the money obtained by the fraudulent claims from the company accounts to his personal account or drawing it from an ATM so that he could use it to gamble.  He was doing nothing to hide the source or to change the nature of the funds.  He was simply gaining access to them”.  In Nahlous, the applicant had sold 50 decoders to an undercover police officer and received AUD15,000 in cash in return.  The applicant was arrested and the cash immediately recovered from his vehicle.  The court held, at 154, that “the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty”.  However, the court in Nahlous went on to say this:

“The Crown at the hearing of the appeal sought to argue that the two offences were aimed at different policies. The Code offence was intended to punish the possession of the proceeds of crime however they are obtained and the fact that the proceeds of the crime were in the public domain and could be dealt with or passed on to others. We accept that this may be a justification for the prosecution of such an offence particularly where the source of the funds is unknown, or where the proceeds were derived from the criminal act of another person or where the person is in some way dealing with the proceeds in order to hide their source or change the nature of the proceeds.”

35.Whether or not the justification should be so limited, and whether or not (as suggested in Nahlous) an instrument of such limitation should be a stay of proceedings, is not necessary for us to decide. We do observe, however, that this Court (differently constituted) has recently stated the approach for the courts of Hong Kong to similar circumstances.  In HKSAR v Chan Kim Chung Nelson [2012] 2 HKLRD 263, in which Thorn was referred to, the Court said this, at 271:

“18.  Where the s. 25 offence adds nothing to the culpability of the conduct involved in the primary offence, it will be appropriate either to say that “no separate penalty” is imposed for the s. 25 offence or to impose a sentence for the s. 25 offence but order it to run concurrently with that imposed for the predicate offence.

19.  In the normal course of events the use of an account to conceal the proceeds of crime, to disguise them, or transfer them or remove them, or the conversion of the proceeds into some other form of property, so as to facilitate the crime’s commission or render its detection more difficult will constitute material additional culpability.  Conversely, where the s. 25 offence evidences no more than the mere obtaining of funds already reflected in the predicate offence, it is unlikely -- unless the prosecutor is able to show otherwise -- that additional culpability is demonstrated.  In this latter regard, we recognise that it may be said that the mere deposit of illicit funds into a bank or other financial institution itself taints the integrity of the system, and that by its sentence the court should strive to deter the misuse of Hong Kong’s banks and financial institutions by those who have profited from crimes.  But that is not a basis upon which the respondent has invited the Court to act nor is that an approach adopted elsewhere.  Whether the use by an offender of Hong Kong’s banking and financial system for a non-money laundering purpose, such as to enable the crime to be more easily or effectively committed, should be regarded, without more, as adding to an offender’s culpability is a consideration which may have to be visited at some future point.”

36.Over 13 months, between 27 February 2009 and 26 March 2010, the applicant made 35 individual payments of cash totalling HK$1,285,000 to five different bank accounts in his own name.  Although the deputy judge was prepared to act on the basis that only HK$860,000 of that amount came from D3, he did not believe the applicant’s evidence that the money had been broken down into smaller amounts in this way so as to avoid the surcharge levied by banks on cash deposits over HK$50,000.  He held as follows:

“Everyone knows that cash leaves no trace, if (the applicant) was so careful about the levy, why accept cash in the first place? I believe the whole idea was to avoid detection from the law enforcement agency. I have no difficulty in drawing the only conclusion that judging from the time and manner in which the money was deposited into (the applicant’s) various accounts over a prolonged period of time (about one year), it was to hide the source of the money in question.

(The applicant) had used his five different bank accounts for depositing some of the money from the 2.5 million corrupt money, by his own admission, the amount constituting the source from D3 came to HK$860,000.  I am satisfied that he had used his bank accounts to launder in part the 2.5 million corrupt money – at least HK$860,000.”

37.In the light of this finding, and bearing in mind that the court in Chan Kim Chung Nelson (and, it would seem, in Nahlous) considered that the disguising or concealing of the proceeds of crime did add to the criminality of the principal offence, we consider Mr Egan’s argument on this ground wholly untenable, and we reject it.

Ground 7

38.It is next submitted that when the applicant came into possession of the HK$2 million and the HK$500,000 in cash, he had dealt with it within the meaning of the word ‘dealing’, as defined by section 2 of the Organised and Serious Crimes Ordinance, namely by receiving it.  Once the applicant had dealt with the property in this way, it is argued that the offence was at an end.  Consequently, when the applicant later deposited HK$860,000 worth of cash into five different bank accounts (each account represented in a different charge), he was no longer dealing with property but re-dealing with property.  Therefore, he could not have been found guilty of Charges 17 to 21 as framed.

39.The argument, if correct, would significantly confuse and weaken the purpose of the legislation.  For a number of things may happen to the same property after it is received by an accused.  He may hide cash in one place, move it to another, change the notes, convert it into foreign currency, place the proceeds in a bank and remove it from Hong Kong.  Yet all of those activities, including receiving or acquiring the property in the first place, could amount to dealing with it within the meaning of the section. We do not see why the prosecution must be limited to the first dealing in time or why one form of dealing must necessarily be precluded by a previous form of dealing.  A defendant may, as in this case, deal with the same property in a number of ways over a long period.  And the prosecution may identify which ‘dealing’ they wish to prosecute.

40.In this particular case, the dealing averred against the applicant in each of the five dealing charges was the depositing of different specified amounts of cash in a different specific bank account in his own name.  The allegation was at all times spelled out and clear; and that was the form of dealing of which the deputy judge found the applicant guilty.  We see no merit whatsoever in this ground.

Ground 8

41.Mr Egan’s fall-back position is that since there was more than one deposit of cash into each of the bank accounts represented in the five charges, which deposit took place on a different day and at a different time, the charges were void for duplicity.  We have already addressed a similar argument under ground 9 by reference to DPP v Merriman.  We apply the same reasoning.  There is likewise no merit in this ground.

Ground 10

42.Finally, it is submitted that to the extent that the trial judge relied upon section 11 of the Prevention of Bribery Ordinance to support his convictions on the four section 9 charges, the deputy judge erred in law.  Mr Egan chose his words carefully.  The fact is that the deputy judge did not use section 11 to support any convictions.  He merely pointed out by reference to the section that the fact that the applicant may not have been in a position actually to influence the final outcome of the loan applications was no defence.  It was never suggested by the defence that it was.  The reference to section 11 was a non-issue.  There is nothing in this point.

Conclusion

43.Despite the several and valiant arguments of Mr Egan on the applicant’s behalf, we see nothing unsafe or unsatisfactory about the convictions in this case.  The application for leave to appeal against conviction is accordingly refused.

Ms Polly Wan, SADPP of the Department of Justice, for the respondent

Mr Kevin B Egan and Ms Jay S L Ma, instructed by Messrs Foo, Leung & Yeung, for the applicant