HKSAR v. Tam Lap Shek and Another

FAMC No 47 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 47 OF 2013 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO 199 OF 2012)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Tang PJ:

1.The 1^st applicant (“D1”) and the 2^nd applicant (“D2”) are long-term cohabitees.  They were convicted after trial of 6 and 4 counts, respectively,of dealing with properties known or reasonably believed to represent proceeds of an indictable offence contrary to s 25(1)and (3) of the Organized and Serious Crimes Ordinance Cap455.  A total of over $68 million was dealt with in D1’s 6 accounts and over $43 million in D2’s 4 accounts between 2001 and 2007.

2.On appeal, the Court of Appeal allowed D1’s appeal against conviction in respect of the 3^rd,4^thand 5^thcharges but dismissed it in respect of charge 1,2 and6 by applying the proviso and in the case of D2 allowed her appeal in respect of charge 10 but dismissed it in respect of charges 7,8 and 9.

3.They applied for leave to appeal on the second limb of s32(2) on the ground that “substantial and grave injustice has been done”.

Background

4.The defendants were arrested on 19 July 2007 and later charged.  In 2011, they applied for a stay of proceedings on the ground that neither of them could have a fair trial because D1 could not give full and reliable evidence because he was suffering from cerebral atrophy.  No witness gave evidence.  The judge only had the charges, the prosecution’s summary of facts dated 30 December 2008 and the medical reports of various doctors provided by the parties.  On 15 July 2011,Judge A Wong refused a stay.  He said:

“42. I am satisfied on the evidence of the experts that D1 is suffering from brain atrophy and his condition can only be deteriorating. As a result, D1 is suffering from disabilities, including defective memory, risk of confabulation and perseveration, impaired reasoning and impairment of attention.”

5.He went on to note that:

“50. … there is little, if any, direct evidence, on the impact in substance of the health condition of D1 on his preparation and presentation of his case.

……

55. Indeed, there is little evidence to show how, in reality, the health condition of D1 had hindered or affected the preparation by the defence and its conduct of the case.

……

57. In my judgment, suitable case management, appropriate directions and other measures available are sufficient to cope with the circumstances arising from the conditions of D1.”

6.Subsequently,Judge A Wong initiated under s 75 of the Criminal Procedure Ordinance Cap 221,an enquiry into D1’s fitness to stand trial. On 4 November 2011, Judge A Wong decided that D1 was fit to stand trial.  He explained why in his detailed reasons, where the evidence of medical witnesses from both the prosecution and the defence,some of whom gave evidence before him,were considered in some detail.

7.It appeared that D1 suffered brain injury in September 2004 after being attacked with a blunt object on the left side of his head.  He was admitted into Prince of Wales Hospital on the 9 September 2004 and was attended to by Dr Lam Ming Kuen.  D1 was discharged on 16 September 2004.  When he was later examined by clinical psychologists (presumably as part of the follow-up after discharge) their report said:

“17 … that D1 was suffering mild impairment on verbal memory whilst his general intellectual functioning was within normal limits. It was said evidence indicated that some of the cognitive deficits manifested after head injury may improve over time and whether the cognitive impairment would become permanent could not be confirmed at this stage. It was also said D1 has relatively intact performance in most of the cognitive abilities including general intelligence, attention, visual memory, visual abilities, and executive function (concept formation and reasoning, cognitive flexibility and tendency of confabulation).”

8.However although follow-up treatment had been arranged,D1 failed to turn up.

9.TheD1 consulted Dr Lam (it appears that Dr Lam was then in private practice)in February 2010 complaining of memory deterioration and change of mood.

10.In the s 75 proceedings, the judge had the benefit of the evidence of, amongst others, the psychiatrists called on behalf of the D1. They, Dr Ronald Chen and Dr Peter Yu were of the view that D1 was not fit to stand trial because he was unable to give reliable evidence.  Both were of the view that D1 suffered from confabulation.

11.Two government psychiatrists gave evidence for the prosecution.  Whilst Dr Chua:

“31. … found occasional slowing and muddling of timing on the part of (D1), she did not consider (D1) to be suffering from confabulation …”

Dr Chung:

“32. … expressed doubt about (D1)’s memory impairment. He found no evidence of confabulation that would affect court hearing. He stressed that (D1) was either able to recall his past or unable to give details of events and had never falsified his memory. Questions designed to test confabulation demonstrated no such problem.”

12.The learned judge said:

“83. … All in all, having considered the whole of the relevant evidence, I decline to accept that the opinion that D1 is, more likely than not, suffering from confabulation, if it means confabulation in the pathological sense.”

13.In paras 105 to 117, the learned judge carefully noted what various doctors said about D1 during various assessments and interviews.  It appears from them that D1 had no or little difficulty in communicating with a number of the doctors who had examined or interviewed him, with the exception of Dr Chen, a psychiatrist called by D1.

14.At para 118:

“118. I find that the opinion of the government psychiatrists that D1 is fit to stand trial is based on sound, cogent and rational reasons. I gave their opinion full weight.”

15.At para 124:

“124. … Having regard to the grounds each doctor provided for his/her opinion, I reach the conclusion that the opinion of the government psychiatrists should be given full weight and if their opinion differs from that of others I accept their opinion.”

16.At para 134:

“134. Having considered the whole of the evidence, I find the defence not able to prove on a balance of probabilities that, even if D1 is suffering from some cognitive impairment, it is not of such a nature and degree that makes him unable to challenge jurors, to instruct counsel, to understand the evidence and to give evidence himself. Bearing in mind the submission the degree of complexity of the present case, I am not satisfied that, on a balance of probabilities, that D1 is not of sufficient intellect to comprehend the course of the proceedings in the trial so as to make a proper defence.”

17.The matter then went to trial before Deputy District Judge G Lam. There was an application before him to sever the trial pending D1’s appeal against the stay decision which he refused.  At the trial, D1 did not give evidence.  D2 did and called 3 witnesses. Her evidence was that, much of the money in her 4 accounts was given to her by D1.  However, she did not ask why he gave her so much money or why he used her accounts instead of his own.  D1 told her that he could earn several million dollars a year, but he did not tell her the source of his earnings and she did not ask him.

18.They were both convicted as charged.  In convicting D1 the judge relied on Li Defan and another v HKSAR(2002) 1 HKLRD 527 and said:

“30. … in the absence of explanation from (D1), the court is perfectly entitled to regard the failure of the accused to give any explanation on oath as strengthening the inference to be drawn from the Prosecution case.”

19.As mentioned above, their convictions on some of the charges have been set aside on appeal, on the basis that there was no evidence on which reasonable persons could conclude that they contained proceeds of any indictable offence, essentially, because  these accounts did not display the characteristic  of money laundering. 

20.The application for leave to appeal to this court is made on the grave and substantial injustice ground, that being the case, the applicants have to show that it is at least reasonably arguable:

“… that therehas been to the appellant’s disadvantage a departure fromaccepted normswhichdepartureisso serious as to constitute a substantial and grave injustice.”

perBokhary, PJ inSoYiuFungvHKSAR (1999) 2HKCFAR 539at543G: 

That is because the Court of Final Appeal’s

“primaryroleintheadministrationof criminal justice is to resolvereal controversy on pointsoflawofgreatandgeneral importance. For this Court does not function asacourt ofcriminal appeal inthe ordinary way. Howeverthe ‘substantialand graveinjustice’limb of s.32(2) exists asaresidual safeguard tocater for thoserare andexceptionalcases inwhich thereisarealdanger of something so seriously wrong that justice demands anenquiry by way of a final criminal appealdespite the absence of any real controversy on any point oflawof great and general importance. …

……

… Reviewing convictions to see iftheyare safeand satisfactory isentrusted totheintermediate appellate court. Ifthematter proceeds furthertothis Court, our task does not involve repeating that exercise. Weperform adifferent one. …” per Bokhary PJ at 541I

21.Mr Andrew Bruce SC for the applicants submitted that (1) Judge A Wong erred in refusing a stay and that in any event no measure was adopted to ameliorate the prejudice to D1 as a result of his impairment; (2) the Court of Appeal having rightly held that Judge G Lam wrongly relied on Li Defan erred in applying the proviso; (3) there was confusion or conflation by the learned judge of the knowing and the reasonable ground to believe limbs under s 25 (1) when he said in connection with D2: “34. In my view, there is only one inference to be drawn. Either D2 knew about the illegitimacy of the sources of the money which went through her 4 accounts or she simply turned a blind eye to the obvious truth.”; (4) because of the disability of D1, D2 had been deprived of the benefit of his evidence. 

The Stay

22.Mr Bruce made no complaint regarding the s75 proceedings, where the learned judge held that D1 was fit to stand trial.  That does not surprise since Judge A Wong’s decision that D1 was fit to stand trial is unassailable.  That being so, one might think that the complaint about the refusal to stay because D1 was unable to properly defend himself, is highly technical.  Be that as it may, the Court of Appeal dealt with this ground very fully in paras 21 to 53 of their judgment and concluded that the judge was entitled to determine as he did.  We agree with the Court of Appeal.  We also note that as the Court of Appeal explained, these charges involved numerous deposits by cheque or cash into D1’s accounts.  The defence could have contacted the drawers of the cheques for information.  There should also be documents regarding cash receipts. The same can be said of withdrawals from D1’s accounts.  But, the Court of Appeal said:

“49 … no attempt had been made by those representing (D1) to adduce any evidence whatsoever of any actual difficulties encountered in preparing for and conducting the prospective trial of (D1).”

That was said in respect of the stay proceedings.  But there was also no attempt to do so in the s75 proceedings or at trial.

23.As for the submission that no ameliorating measure were adopted at trial.  By the time of the trial,Judge A Wong had decided the stay application. It will be recalled that Judge A Wong was not satisfied that D1 was unable to give evidence, or that he was unable to defend himself.  Nor did D1 give evidence.  It is not clear, what ameliorating measures are said to be desirable or required.   D1 was represented at trial and it does not appear that counsel for D1 asked for any.  It was continued to be maintained on his behalf that he was unable to defend himself.

Li Defan

24.The Court of Appeal pointed out at para 62 that the judge ought to have borne in mind the possibility that D1 might have other reasons for not testifying when determining whether the prosecution case is strengthened by the failure of the accused to give evidence.  The judge had the 2 decisions of Judge A Wong, in particular, the fitness to stand trial decision, where Judge A Wong held that D1 could give evidence.  Judge G Lam has also refused severance pending D1’s appeal.  We do not have the reasons.  Presumably, he was satisfied that D1 was able to defend himself. In such circumstances it is understandable if Judge G Lam did not think D1 had any reason not to give evidence.  Unfortunately, he did notexplain in his judgment why he thought Li Defan was applicable.

25.Be that as it may, the Court of Appeal applied the proviso.  It was a decision which the Court of Appeal was entitled to come to.

26.It is clear from the evidence that there were substantial payments into and out of D1’s and D2’s accounts after D1 suffered his brain damage. They showed that D1 was able to carry on his banking activities normally.  For example,  in connection withD1’s Hang Seng Bank savings account, the subject of charge 1, into which over $54 million was deposited during the period the subject of charge , the expert report of Mr John Lees stated:  

“there is a pattern evident of multiple deposits in one day followed by a substantial withdrawal of similar amount(s) in cash over a very short period. In particular, he noted that on 27 February 2006 by 15 separate deposits a total of $2.7 million was deposited into the savings account. Seven of those deposits were in cash and the balance by transfer. On 7 March 2006 $2.3 million was withdrawn in cash from that same savings account.”

27.There were also active transactions both by way of deposits and withdrawals as well as the purchase and sale of securities in the D1’s Hang Tung Securities Ltd account, the subject of charge 6.  The expert report of Mr Lees showed that, long after D1’s brain injuries, very substantial sums were paid into and out of his various accounts.  In this context one is not confined to accounts in respect of which his convictions were upheld.  His accounts showed that he was active in his affairs.  The evidence of D2 was that D1 used her accounts as well for his own affairs.

 Confusion or conflation 

28.This relates to D2 only.  The prosecution of D2 was based on the reasonable ground to believe limb.  Mr Bruce submitted Judge G Lam had confused or conflated the knowledge limb with the reasonable ground to believe limb.

29.This is what the Court of Appeal said:

“107. On its face, it is surprising that, having stated that on the facts known to the 2^nd applicant, there was only one inference to be drawn, the judge then went on to say :

‘Either D2 knew about the illegitimacy of the sources of the money which went through her 4 accounts or she simply turned a blind eye to the obvious truth.”  [Italics added.]

Nevertheless, in context, it is clear that the true import of his statement was that there was but one inference as to culpability, which was that the requisite guilty mind was proved; as to which limb of guilty mind she either knew the source or turned a blind eye to the obvious truth.  Clearly, the judge was satisfied that the applicant’s knowledge of the facts and circumstances afforded reasonable grounds to believe that the monies were the proceeds of an indictable offence.” 

30.We see no basis upon which one could say there has been grave and substantial injustice.  The evidence against D2 on the charges in which she remained convicted,was overwhelming.  

31.As for the complaint that D2 had been deprived of D1’s evidence,Mr Bruce recognized, if D1’s application fails so must her’s.

32.For these reasons on 18 December 2013, we dismissed the applications for leave to appeal.

Mr Wesley W C Wong, SC, DDPP, and Mr Ivan C K Cheung of the Department of Justice, for the respondent

Mr Andrew Bruce, SC, Mr Keith Oderberg and Mr Simon Ng, instructed by Lau, Chan & Ko, for the applicants