HKSAR v. STANLEY LAWRENCE FREEDMAN AND ANOTHER

DCCC 810, 813, 934/2011
(consolidated) Part B

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 810, 813, 934 OF 2011 (consolidated) Part B

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REASONS FOR VERDICT

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1.  The charges relate to applications by two persons to become Racing members of the Hong Kong Jockey Club (the Club).

2.  The first charge, against D7 only, alleged that he conspired with Lam Wai Ming ( PW5)  and others to defraud the Hong Kong Jockey Club ( the Club) by dishonestly  submitting an application by PW5 for Racing membership of the Club   which contained false information. The application form was produced as Exhibit P7.

3.  The second charge was a similar charge of conspiracy against D7 and D10 and others in relation to an application by Chan Chi Chung ( PW3) for Racing membership of the Club. The application form was produced as P6.

4.  D10 was additionally charged with two offences of  being an agent of the Club soliciting an advantage from PW5 as an inducement or reward or otherwise for supporting the application by PW3 for Racing membership of the Club.

5.  A  paginated  Core Bundle ( CB) of  the key documents produced at trial was produced and marked as Exhibit P23.

The prosecution case

6.  There are different types of membership of the Club. They include  voting membership, honorary voting membership, Full membership and Racing membership. The Club is run by a Board of 12 Stewards which acts in a similar manner to the Board of Directors of a private company.

7.  At the material time the membership of the Club was about 22,000. 13, 793 were Full members including stewards and voting members, 7556 were Racing members and 632 were other members. The number of voting members is capped at 200 which includes the 12 stewards. When a voting member reaches the age of 70 he becomes an honorary voting member. At the material time there were about 70 honorary voting members.

8.  To become a Racing member of the Club, an applicant has to submit an application form for Racing membership to the Club. The application has to be proposed by a voting member or honorary voting member  and seconded by another voting member or honorary voting member. The application must be supported by three other members of the Club.

9.  To become a Full member of the Club an applicant who is a Racing member already has to submit an application form for Full membership to the Club proposed by a voting or honorary voting member of the Club.

10.  The prosecution maintained that those who sponsored an application for Racing membership should be well-acquainted with the applicant and able to provide reference as to his good character. They have to state on the application form, inter alia, that they have known the applicant personally for a specified period of time, the nature of their relationship and the reasons they regard the applicant as a suitable candidate for membership.

11.  The Club does not allow its members to solicit or accept any advantage for sponsoring applications.

12.  D7 is an honorary voting member of the Club. D10 is a Full member of the Club and, as such, can only support applications for Racing membership.

Charge 1

13.  The prosecution alleged that, in or around September 2009, PW5 was introduced by a friend of his to Mr Ng Ka Ki, Robert ( Ng), a Full member of the Club, as a person who could assist PW5 in obtaining Racing membership of the Club. Ng supplied PW5 with a Racing membership application form which had been issued by the Club to D7 and he was told he would receive a phone call from D7.  PW5 received a phone call from someone calling himself  Freedman and went with his brother, PW6, who spoke better English, to the home of  D7 whom he had not met before. PW5  and D7 discussed their backgrounds and D7 completed  and signed the section of the form to be completed by the Proposing Voting Member. PW5 and his brother left with the signed form. This was the only occasion on which he had met D7. The prosecution case was that many of the assertions made by D7 in Ex P7, CB 81, were untrue.

14.  PW5, on the instructions of Ng, later went to the offices of Mr John Douglas Mackie ( Mackie), an honorary voting member of the Club, in Central Plaza Wanchai  in October 2009 and took with him P7. PW5  met Mackie for the first time on that occasion and they exchanged background information. PW5 went back a few days later and received P7 signed by Mackie at CB 82, as a Seconding Voting Member. The prosecution alleged that many of the assertions made by Mackie were untrue.

15.  PW5 returned P7 to Ng and later received it back from Ng with page CB83 completed by three supporting Club members. PW5 knew none of them.

16.  On 24 November 2009 PW5 submitted the form to the Club and on 26 January 2010 he was asked to go to the Club for interview. Before going  for interview PW5 was coached by Ng as to how he should answer any questions.

17.  PW5’s application for Racing membership was rejected.

Charges 2,3 and 4

18.  PW3, after discussions with his father, Chan Yuet Ming, PW4, about membership of the Club, found on his office desk a Racing membership application form Ex P6, CB 69. Through the arrangement of  a Mr Tang Kang-chung, Billy ( Tang) in mid-January 2009 PW3 visited D7 at D7’s residence with P6 in his possession to get assistance with completing P6. PW3 and D7 discussed their backgrounds.  PW3 left P6 with D7 and returned to collect it one week later, again on the instructions of  Tang.  PW3 collected P6 from D7 and  the section to be completed by a Proposing Voting Member of the club, page 2 of the form, CB71, had been completed by D7 with false information. PW3 had only met D7 on the two occasions he visited his residence in January 2009.

19.  In mid- February, PW3, through the arrangement of Tang, went to the office of D10, a Full member of the Club. They had never met before. D10 had taken P6 with him with a view to securing the support of  D10 for his membership application. It was alleged that D10 solicited laisee from PW3 and that PW3 refused  and left D10’s office without D10 completing the relevant section of  P6.

20.  PW3 again met D10 one week later at the Eaton Hotel coffee shop and D10 completed the section of the form to be completed by the first supporting member on page 4 of the form, CB73. D10 falsely stated that he had known PW3 for 2 years. It was alleged that on that occasion D10 again solicited laisee and PW3 refused.

21.  D10 supplied PW3 with the name card of  Dr Ho Wai  Tak, David, PW12, a voting member of the Club with a view to PW12 completing the section of the form to be completed by a Seconding Voting Member. Subsequently, PW3 visited PW12 at his clinic where he met PW12 for the first time. PW12 signed and wrote in the appropriate part of the form falsely stating, inter alia, that he had known PW3 for one and a half years at page 3 of P6, CB72.

22.  PW3 submitted P6 to the Club on or about 13 March 2009 and became a Club Racing member later that year.

23.  D7 and D10 were arrested by ICAC officers in November 2010 and August 2011 respectively.

Defence Case

24.  It was contended by the defence counsel in relation to charges 1 and 2 that the charge of conspiracy had not been made out as there was no evidence that any one of the alleged conspirators knew of any dishonest dealing beyond their own agreement with the applicants to fill in the forms dishonestly.

25.  It was further submitted that any such alleged false disclosures were not material,

26.  I was referred to the case of  Mo Yuk Ping  v. HKSAR [2007] 3 HKLRD 750 where parameters of the offence of conspiracy to defraud were considered.  It was contended that what was alleged by the prosecution did not amount to a conspiracy to defraud as the offence includes cases of economic loss and “contrary to public duty cases”,   but  does not extend to an officer of a private body acting contrary to his “private duty”.

27.  In relation to charges 3 and 4, it was submitted that there was insufficient evidence to support the charges.

Evidence adduced by the Prosecution

28.   I have included a summary of the prosecution evidence  in the Appendix.

Defence case

29.  Both defendants elected not to give evidence and called no witnesses.

Directions

30.  I reminded myself that the prosecution are required to prove each and every ingredient of each offence against each defendant beyond reasonable doubt. The defendants have nothing to prove and no inference can be drawn against them for exercising their right to remain silent.

31.  Both defendants have clear records. This is relevant to the issues of propensity and credibility.

32.  I reminded myself that exculpatory statements made by D10 when arrested and in his record of interview were admissible as evidence of their truth and I bore in mind his clear record with regard thereto.

33.  I reminded myself that if I were to reject what D10 said in his record of interview, that does not mean he is guilty of any of the offences with which he is charged. I have to rely on the evidence I found proved to the required standard and decide if that satisfied me of the guilt of the defendant beyond reasonable doubt on any of the charges against either defendant.

34.  I reminded myself that the court could not draw any inferences from circumstantial evidence unless the facts relied upon to support such inferences were proved beyond reasonable doubt and that any inference drawn must by the only reasonable inference that could be drawn from such facts, the inference must be irresistible.

35.  Prosecution witnesses 3,4,5,6 and 12 gave evidence under immunity. I reminded myself that such evidence should be treated with the greatest caution, they have a motive to lie and exaggerate the evidence they gave.

The Law

Conspiracy

36.  The essence of a conspiracy is the agreement. When two or more agree to carry their criminal scheme into effect, the very plot is the criminal act itself: R v. Chan Hon Muk ( 1989) HKLY 182. Nothing need be done in pursuit of the agreement: O’ Connell v. R (1844) 5 St Tr (ns). A conspiracy does not end with the making of the agreement; it will continue as long as there are two are two or more parties to it intending to carry out the design: DPP v. Doot [1973] AC 807,HL.

37.  The prosecution must establish beyond reasonable doubt that the defendant had the intention to be a party to an agreement to do an unlawful act. In R v. Anderson [1986] AC 27 HL Ld Bridge said :

“ But beyond the mere fact of the agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused when he entered the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice. Nothing more is required.”

38.  Knowledge of the facts is a necessary ingredient of the offence. The prosecution must establish to the required standard that the accused knew that the agreed course of conduct, if carried out, would involve the doing of acts which constitute the relevant actus reus with the relevant mens rea, ie, would in fact involve the commission of an offence.

39.   By their very nature, conspiracies are often difficult to prove. The court is usually left to infer from circumstances and the individual acts of parties that a conspiracy has taken place. Once there is prima facie evidence that a particular person was a party to a conspiracy, the acts and declarations of the parties to the conspiracy are admissible both against that person and against other members of the conspiracy, if the acts and declarations are made in furtherance of the conspiracy and provided they are related to it: R. v. Au Shui Yuen [1992] HKC 219

40.  In HKSAR v. Lai Wai Cheong 1998  HKLRD 665 Leong J stated at 668

“It is not easy to prove a conspiracy offence. Usually, there are only two ways. The first one is for the conspirators to confess to the police and disclose that they have reached an agreement with the other person(s) to carry out an unlawful practice, or for one of the conspirators to give evidence against the other parties to the conspiracy and reveal what agreement has been reached. The second way is to draw an inference from the subsequent acts of the conspirators as to whether they have previously reached an agreement and then carried it out accordingly. The court can objectively analyse and draw the appropriate inference from proven or undisputed facts. If the only reasonable conclusion that can be drawn is that the conspirators must have reached an agreement, or else a series of acts would not have been carried out, then this is sufficient proof.”

Dishonesty

41.  Each of the first and second charges alleges dishonesty on the part of the conspirators.  Whether that is proven falls to be considered in the light of the test set out in the well known decision in GHOSH [1982] 3 WLR 110:

… a jury must first of all decide whether according to the ordinary standards of reason­able and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.

The Indictment

42.  Certain passages in Archbold 2012  were brought to my attention by counsel for D10.

43.  Para 36-47 states as follows:

“Where the indictment is perfectly regular on its face, the evidence may nevertheless prove not one but several conspiracies. If at the close of the case for the prosecution, there is no evidence to support the single conspiracy charged, it is the duty of the judge to withdraw the case from the jury….

44. Para 36-48:

“In order properly to found one count, alleging against several people a conspiracy to commit an offence, the evidence would have to show that all had joined in one agreement, each with the others. The principle was considered in R v Griffiths [1966] 1QB 589. Paul J, giving the judgment of the court, said:

“… in law all must join in the one agreement, each with the others, in order to constitute one conspiracy. They may join in at various times, each attaching himself to that agreement; any one of them may not know all the other parties, but only that there are other parties; any one of them may not know the full extent of the scheme to which he attaches himself; but what each must know is that there is coming into existence, or is in existence, a scheme which goes beyond the illegal act which he agrees to do [at pp 597, 290].”

“… The matter can be illustrated quite simply. I employ an accountant to make out my tax return. He and his clerk are both present when I am about to sign the return. I notice an item in my expenses of £100 and say: “I don’t remember incurring this expenses.” The clerk says: “Well, actually I put it in. You didn’t incur it, but I didn’t think you would object to a few pounds being saved.” The accountant indicates his agreement to this attitude. After some hesitation I agree to let it stand. On those bare facts I cannot be charged with 50 others in a conspiracy to defraud the Exchequer of £100,000 on the basis that this accountant and his clerk have persuaded 500 other clients to make false returns, some being false in one way, some in another, or even all the same way. I have not knowingly attached myself to a general agreement to defraud.” [R v Griffiths at pp398-9]

45. Archbold 36-48 cont:

If one or more persons are at the centre of the unlawful activity and deal with individuals who do not know, or know of, each other, and each of whom is ignorant of the fact that the activities go beyond his own dealings, then the whole evidence relating to all the individuals does not disclose one single conspiracy. If, however, each individual, although ignorant of the details of the others concerned, knows that there are others and that the activity in which he takes a part extends beyond his own dealings with the person or persons at the centre, then the evidence discloses one conspiracy: R v Meyrick and Ribuffi, 21 Cr App R 94, CCA. The question is always whether there was a common criminal purpose: ibid at p102.

46. Para 36-50:

… It is perfectly possible for a number of conspirators to deal only with a person at the hub and all to be members of the same conspiracy. The issue in such a case is whether they were aware that the scheme to which they attached themselves went beyond their agreement with the person at the hub.

Conspiracy to Defraud

47. In Mo Yuk Ping Sir Anthony Mason NPJ, in considering the parameters of the offence of conspiracy to defraud and having examined the relevant case law, stated:

“What emerges from this discussion of the cases? First, that there is no formulation which amounts to a comprehensive definition of the common law offence”.

48. The court went on to consider whether or not the offence extended to non-economic loss. At page 769, the court stated:

“52. There is now a strong body of English authority to support the proposition that conspiracy to defraud extends to causing non-economic loss or prejudicing non-economic interests. This proposition was accepted by Lord Denning and Lord Radcliffe with the assent of other members of the Appellate Committee in Welham v DPP [1961] AC 103. It was confirmed by R v Scott [1975] AC 819, with only Lord Diplock dissenting, and it was accepted in Wai [Wai Yu Tsang (1992) 1 HKCLR 26] where Lord Goff rejected Lord Diplock’s narrow approach. These decisions have been applied in Hong Kong, notably by the Court of Appeal. The proposition has support in Australia. On the other hand, in The Queen v Wai Yu Tsang [1992] 1 HKCLR 26, the attention of the Privy Council was not drawn to DPP v Withers [1975] AC 842 where, as already pointed out, three members of the Appellate Committee seemed to be opposed to extension of the offence to non-economic loss cases outside “contrary to public duty” situations.

53. In these circumstances, it is preferable that this Court refrain from resolving this question until it is the subject of a concrete case between contending parties in which arguments are put for and against the application of the offence to non-economic loss.

Contrary to private duty

54. We have not been referred to any authority which supports the application of the offence to a situation in which the agreement is to use dishonest means to induce a person to act contrary to his private duty. Neither principle nor policy provides support for such an application. The proposition, if accepted, could open up conspiracy to many cases of breach of contract rather than leave conspiracy in its application to contractual relationships confined to the category of economic loss and prejudice to economic interests.

Conclusions on material issues concerning the offence

55. It follows from the preceding discussion:

(1) that dishonesty is an essential element in the offence in that the means agreed upon must be dishonest;

(2) that the test for dishonesty is the two-stage test enunciated in Ghosh;

(3) that the offence includes cases of economic loss and the “contrary to public duty” cases;

(4) that the essence of the offence in the former category is to use dishonest means to cause economic loss to another or to put at risk another’s economic interests and while there is strong authority to support the proposition that the offence extends to cases of non-economic loss, the correctness of this proposition remains finally to be resolved; and

(5) the offence does not extend beyond the “contrary to public duty” cases to “contrary to private duty” situations.”

49. The prosecution drew the court’s attention to the Hong Kong Court of Appeal cases, HKSAR v Law Kam Fai & Anr [2006]2 HKLRD 879 at dd7 C-889C and HKSAR v Chan Chun Hong [2006] 1 HKKRD 346 at 351D, 353C-356E and the Privy Council in Wai Yu Tsang at pp. 29-31 as representing the law in Hong Kong.

50. In Chan Chun Hong the defendants were charged with conspiracy to defraud. The defendants supplied computer equipment to Government schools and under the relevant regulations at least two quotations had to be supplied, the contract being awarded to the company providing the lowest quote. The prosecution case was that the conspirators arranged with another company to provide a higher quote so the conspirators were awarded the contract. It was not disputed that the price charged was not excessive. The trial judge dismissed the charges on the grounds there had been no economic loss and the Secretary for Justice appealed by way of case stated.

51. The court stated at 353 C – E

“18. Question One, as we have seen, is whether the Judge was correct in defining the elements of the offence of conspiracy to defraud as requiring that the conspiratorial agreement, if carried out, would have the effect of deceiving the victim into a course of action, as a result of which the victim would suffer economic loss or his economic interests would be put at risk. In so defining the elements of conspiracy to defraud, the Judge based himself on para. 36-34 at p. 1817 of Archbold Hong Kong 2005, which paragraph reads:

“See R v Wai Yu-tsang [1992] 1 HKCLR 26, PC, where it was held that intention to defraud was not narrowly confined but meant simply an intention to practise a fraud on another, or an intention to act to the prejudice o[f] another’s right. It was sufficient, in cases such as the present, that the conspirators had dishonestly agreed to bring about a state of affairs which they realised might deceive the victim into so acting (or failing to act) that the victim will suffer economic loss or the victim’s economic interests will be put at risk. See HKSAR v Tam Tung-kee and Others, above; HKSAR v David Wu, (unrep. HCMA 76/2000). In R v Chan Kang-to [1997] HKLRD 412, CA, the court held that the expression ‘to defraud’ was not self-explanatory and that the nature of the prosecution case must be precise and on the face of the indictment.”

19. R v Wai Yu-tsang [1992] 1 HKCLR 26 is not authority for the proposition that there cannot be a conspiracy to defraud unless the conspiratorial agreement, if carried out, would have the effect of deceiving the victim into action or inaction as a result of which the victim would suffer economic loss or his economic interests would be put at risk. An intention to deceive the victim into such action or inaction is a sufficient intention, but not the only sufficient intention, for guilt under a charge of conspiracy to defraud. We say so for the following reasons.

20. Mr McWalters is right in saying that in order better to understand the Privy Council’s decision in Wai Yu-tsang’s case, it is helpful to begin by looking at the decision of the House of Lords in Welham v DPP [1961] AC 103. Lord Denning gave the main speech in Welham’s case. Lord Radcliffe, who presided, agreed with Lord Denning’s speech, adding a concurring speech of his own. The other members of the House of Lords simply agreed with Lords Radcliffe and Denning.

21. At p. 131 Lord Denning rejected the proposition that to defraud involves the idea of economic loss, and he proceeded to say this:

“If a drug addict forges a doctor’s prescription so as to enable him to get drugs from a chemist, he has, I should have thought, an intent to defraud, even though he intends to pay the chemist the full price and no one is a penny the worse off.”

And at p. 133 he said this:

“Put shortly, ‘with intent to defraud’ means ‘with intent to practise a fraud’ on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in any way by the fraud, that is enough.”

22. At p. 124 Lord Radcliffe noted that there is nothing to suggest that to defraud is in ordinary speech confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss, and he continued by saying this:

“Has the law ever so confined it? In my opinion there is no warrant for saying that it has. What it has looked for in considering the effect of cheating upon another person and so in defining the criminal intent is the prejudice of that person: what Blackstone (Commentaries, 18^th ed., vol. 4, at p.247) called ‘to the prejudice of another man’s right.’ East, Pleas of the Crown (1803), vol. 2, at pp. 852, 854, makes the same point in the chapter on Forgery: ‘in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it.’

Of course, as I have said, in ninety-nine cases out of a hundred the intent to deceive one person to his prejudice merely connotes the deceiver’s intention of obtaining an advantage for himself by inflicting a corresponding loss upon the person deceived. In all such cases the economic explanation is sufficient. But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived. If there could be no intent to defraud in the eyes of the law without an intent to inflict a pecuniary or economic injury, such cases as these could not have been punished as forgeries at common law, in which an intent to defraud is an essential element of the offence, yet I am satisfied that they were regularly so treated.”

23. After Welham’s case but before Wai Yu-tsang’s case came the decision of the House of Lords in Scott v Metropolition Police Commissioner [1975] AC 819. The main speech in Scott’s case was given by Viscount Dilhorne. The other members of the House of Lords, including Lord Diplock, agreed with Viscount Dilhorne. But Lord Diplock, in a passage at pp 840-841, added this:

“(1) …

(2) Where the intended victim of a ‘conspiracy to defraud’ is a private individual the purpose of the conspirators must be to cause the victim economic loss by depriving him of some property or right, corporeal or incorporeal, to which he is or would or might become entitled…

(3) Where the intended victim of a ‘conspiracy to defraud’ is a person performing public duties as distinct from a private individual it is sufficient if the purpose is to cause him to act contrary to his public duty …”

24. That statement by Lord Diplock in Scott’s case was rejected by the Privy Council in Wai Yu-tsang’s case. Delivering the Privy Council advice in Wai Yu-tsang’s case, Lord Goff of Chieveley said this at p. 31:

“With the greatest respect to Lord Diplock, their Lordships consider this categorisation to be too narrow. In their opinion, in agreement with the approach of Lord Radcliffe in Welham, the cases concerned with persons performing public duties are not to be regarded as a special category in the manner described by Lord Diplock, but rather as exemplifying the general principle that conspiracies to defraud are not restricted to cases of intention to cause the victim economic loss. On the contrary, they are to be understood in the broad sense described by Lord Radcliffe and Lord Denning in Welham – the view which Viscount Dilhorne favoured in Scott, as apparently did the other members of the Appellate Committee who agreed with him in that case (apart, it seems, from Lord Diplock).”

25. Among the cases considered by the Privy Council in Wai Yu-tsang’s case is R v Allsop (1976) 64 Cr. App. R. 29 decided by the English Court of Appeal. At p. 33 the Privy Council said this about Allsop’s case:

“The question whether particular facts reveal a conspiracy to defraud depends upon what the conspirators have dishonestly agreed to do, and in particular whether they have agreed to practise a fraud on somebody. For this purpose it is enough for example that, as in Allsop and in the present case, the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk.” (Emphasis added)

It will be observed that causing economic loss or putting economic interests at risk were given as examples of what would suffice and were not said to be the only things that would suffice.

26. The meaning which the Privy Council gave to the expression “intent to defraud” is to be found at p. 30 of Wai Yu-tsang’s case where it is said that:

“In broad terms, it means simply an intention to practise a fraud on another, or an intention to act to the prejudice of another man’s right.”

That is the ratio decidendi of Wai Yu-tsang’s case, and it represents our opinion as to the law on the point. Properly understood, nothing said in HKSAR v. Lau Kwok-wah, Benjamin [2004] 3 HKC 523 expresses a view of the law different from the one now expressed by us in the present case. Accordingly our answer to Question One is “No”. The Judge was not correct in defining the elements of conspiracy to defraud in the limited way in which he defined them.

52. In Law Kam Fai D1 and others were involved in the illegal excavation of rocks from a river which were to be sold to a contractor constructing an artificial lake for the Disneyland Park. False representations had been made to officers of the Lands Department investigating the excavations that there was a flooding problem with the river and the excavations had been carried out for flood prevention purposes. The conspiracy to defraud charge alleged that the conspirators had induced the Government to delay the institution of legal proceedings regarding the illegal excavations.

53. At 887C -889C the court stated as follows

“ Before us, the main focus of the 1st Applicant’s arguments was on the question of prejudice said to have been caused as a result of the false representations. Mr Clive Grossman SC (for the 1st Applicant) contended that no prejudice was caused; certainly the false representations did not induce any delay in taking action as alleged in the charge itself (see paragraph 13 above). In relation to the issue of prejudice, the Judge said this : -

“388. PW10 stated that if he were not given those excuses on 3 November 2003 at the site, he would proceed to take cautioned statements and initiate criminal proceedings.”

23. In arguing that there was no prejudice, Mr Grossman submitted that whether or not statements would be taken was a matter dependant on legal advice and also that Kwok did not say he would have instituted legal proceedings, only that he was contemplating doing so.

24. We are not persuaded by these submissions : -

(1) In order to understand the relevance of prejudice in a charge of conspiracy to defraud, it is important first to state the law. A conspiracy to defraud simply means an agreement whereby it was intended by dishonest means to act to the detriment of another person : - see HKSAR v Chan Chun Hong & Another [2006] 1 HKLRD 346 (which reiterated the principles to be found in cases like Welham v DPP [1961] AC 103 and R v Wai Yu Tsang [1992] 1 AC 269).

(2) Two points are, however, of note. First, for this charge, the concept of detriment is not restricted to economic loss, although it must be acknowledged that in most cases this will be the position. In the present context, where the deceived party is a public authority, the speech of Lord Radcliffe in Welham is apposite : -

“But in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived.”

We would also refer to the advice of the Privy Council delivered by Lord Goff of Chieveley in Wai Yu Tsang at 279H-280B : -

“The question whether particular facts reveal a conspiracy to defraud depends upon what the conspirators have dishonestly agreed to do, and in particular whether they have agreed to practice a fraud on somebody. For this purpose it is enough for example that, as in Reg. v. Allsop and in the present case, the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk.” (emphasis added)

(3) Secondly, while the intention to cause detriment is necessary, actual detriment need not be shown. It is enough merely to show the intent to cause detriment which must be real and not fanciful.

(4) On the facts of the present case, the charge of conspiracy to defraud was, as the Judge found, clearly established. The dishonest means employed by the 1st Applicant and the 2nd Defendant were the misrepresentations referred to above. The intention was to secure an advantage to these two persons (and perhaps others) by at least delaying (if not altogether avoiding) the initiation of criminal proceedings against them. They were hoping, as Lord Goff of Chieveley put it in Wai Yu Tsang at 280, “to bring about a state of affairs which they realise will or may deceive the victim into … failing to act.” There was certainly an agreement between the 1st Applicant and the 2nd Defendant as to all this.

(5) We have not forgotten, however, that the charge did allege that the Government was actually induced to delay taking action (see paragraph 13 above). It will be recalled that Mr Grossman submitted that as no prejudice could be shown, the charge could not be established. However, for the above reasons, as a matter of law a failure to show actual prejudice or detriment would not have been fatal to the offence of conspiracy to defraud being established. In any event, there was clearly prejudice or detriment suffered by the Government. Specifically, by reason of the false representations made to Kwok on 3 November 2003, he did not immediately proceed to take cautioned statements, this being the preliminary step to criminal proceedings being initiated. Mr Grossman referred to the delay as being only 8 days since it was only on 11 November 2003 that a warning letter was sent to the TCRC. In our view, it was much more than that. Cautioned statements were not taken from the 1st Applicant and the 2nd Defendant until 10 December 2003. It is clear that the false representations did cause delay beyond the minimal or trivial, resulting in prejudice. Apart from anything else, by these false statements, there was an attempt, as Mr Christopher Coghlan (for the Respondent) submitted, to put the authorities “on the wrong track”. The intention was that of a trusted body that plied on its status to carry off its design to deflect a legitimate inquiry, by reason of which the investigating authorities were compelled to check allegations and records running back several years.”

54. The prosecution submitted that the Club’s non-economic interests were prejudiced in that the Club made efforts to ensure that new applicants were, so far as it was possible to ensure, persons of integrity with a genuine interest in racing and suitable to become Club members. In seeking to ensure that end the Club made it clear that members supporting applications for membership should act honestly. The admission of persons whose integrity was falsely represented was to the detriment of the Club.

55. It was further submitted that, even if it were necessary to prove the risk of economic loss to the Club, the false representions made in support of the applications for membership would affect the Club’s economic interests. It was submitted that if those supporting applications for membership falsely stated that they could personally vouch for the applicants being persons of integrity, if persons lacking integrity were able to obtain membership, then the Club’ s reputation would suffer and as a result would be less attractive to potential members which in turn would result in fewer applications and therefore less income from admission fees and monthly subscriptions. It was argued that such a loss of reputation could risk economic loss to the Club in a number of ways.

56. It was submitted by the defence counsel that the charge of conspiracy, as charged, had not been made out and that in any event that the alleged criminality involved did not amount to a conspiracy to defraud as defined in Mo Yuk Ping. It was submitted that this was a breach of private duty case and therefore beyond the ambit of the offence of conspiracy to defraud. It was further submitted that this could never be an “economic loss” case as in granting the applicants Racing membership of the Club, the Club in fact suffered no loss but rather a substantial financial gain by way of membership fees, monthly dues and other general items of expenditure incurred by the applicants for Racing membership.

57. It was also submitted that the alleged false disclosures were immaterial.

Evaluation of the Evidence

Charge 1 – D7

58. D7 is charged with conspiracy to defraud the Club with Robert Ng, John Mackie and PW5. The essence of the conspiracy is the false statements set out in PW5’s application for racing membership of the Club, Ex P7, CB79.

59. Much of the evidence in relation to the first two charges was not in dispute. PW3 and PW5 had submitted applications to become racing members of the Club, P6 and P7, in March 2009 and November 2009 respectively.

60. D7, who is an honorary voting member of the Club, was the Proposing Voting Member for each application. Sections 2 and 3 of the application form states that, to uphold the integrity of the Club, Voting Members should make an informed judgment on the applicant and his reputation before considering either proposing or seconding his application.

61. Sections 2 and 3 of the application form go on to state that :

“The Proposing or the Seconding Voting Member must elaborate on the applicant’s suitability based on their own assessment of the applicant’s character, and social standing, and have had personal knowledge of the applicant for a reasonable period of time.

An interest in horseracing is preferred”

62. The box below that statement in sections 2 and 3 requires that the proposer and seconder should personally know the applicant for a period of years “by virtue of the following: ( a detailed description of your association/ acquaintance, including family background)”.

63. D7 had stated in P6 that he had known PW5 for three years.

64. There was no material dispute in the facts and D7 elected neither to give evidence nor call any witnesses.

65. It was therefore not disputed that PW5 was referred to Robert NG by PW5’s friend, Po Kwo, in about September 2009, so that Ng could assist PW5 to apply to the Club for Racing membership. After making contact with Ng, PW5 and Ng met at the Kam Boat Restaurant. A few days later Ng called PW5 and arranged another meeting at which Ng handed PW5 a blank Racing membership application form, P7, which had been issued by the Club to D7. On the second page of the form, which is for completion by the Proposing Voting Member, the name and Club membership number of D7 were printed. PW5 said that he asked his girlfriend to fill in the personal particulars in the form.

66. In October 2009 Ng contacted PW5 again and told him he would receive a phone call from a foreigner in connection with the form. Later, D7 called PW5 and arranged a meeting between them at the residence of D7 in Kadoorie Avenue. The meeting was confirmed by PW6, PW5’ s brother, who accompanied PW5 on his visit to D7 to act as a translator.

67. At this meeting D7 and PW5 exchanged name cards and PW5 saw D7 switch off his mobile phone and remove the batteries. D7 asked PW’s 5 and 6 to do likewise which they did. PW5 and D7 exchanged information about their backgrounds and eventually D7 completed, in his own handwriting, signed and dated section 2 of the form at CB81.

68. D7 falsely stated he had known PW5 for 3 years , he had only met him once on the day the form was signed. D7 wrote

“[PW5] is a fine person with a good business. I have many friends who are friends with him and do business with him. I have done business with him and some social affairs with him. He will make a good member and user of the Club. He is well known and liked.”

69. In proposing PW5 for Racing Membership, D7 wrote that PW5 possessed the following qualities to become a Racing member of the club:

“[PW5] enjoys horse racing very much and would like so very much to become a horse owner. He would make an excellent owner and one to be proud of. I highly support him as an owner”

70. The observations made by D7 that he and PW5 had many mutual friends who did business with PW5 was untrue.

71. After the meeting with D7, PW5 told Ng that D7 had helped him to fill in the form. A few weeks later Ng rang PW5 and told him he needed the signatures of two voting members and he gave PW5 Mackie’s telephone number and told him to contact Mackie.

72. PW5, through his brother PW6, arranged to meet Mackie at Mackie’s office in Central Plaza, Wanchai. PW5 went to Mackie’s office with his brother and girlfriend, although his girlfriend sat outside the office during the meeting. PW5 and Mackie exchanged background details and Mackie said that he would fill in the application form a few days later. PW5 returned to Mackie’s office a few days later and Mackie said he had filled in the form. PW5 collected P7 with section 3 of the form, CB83, already completed by Mackie.

73. Mackie falsely stated that he had known PW5 for one year and continued:

“I have much pleasure in seconding [PW5] for membership of the Club as he is a very pleasant personality and a very successful businessman. We have got to know each other as he has discussed financial matter with my group. He owns and operates “High Profit Co” which is in the money exchange and remittal business”

74. In seconding PW5 for Racing membership Mackie stated that PW5 had the following qualities:

”[PW5]is in his early forties and lives in Yuen Long with his family and one son who is 13 years old. He goes racing 2 or 3 times a month and would very much like to be a horse owner one day. An excellent candidate”

75. PW5 said that Mackie’s statement in P7 that he had known PW5 for one year was untrue. PW5 said he had only met Mackie on two occasions. I was sure that those meetings were solely for the purpose of acquiring Mackie’s signature to P7.

76. PW5 said he returned P7 to Ng who told PW5 that he would get three members of the Club to sign section four of the form. Ng returned the form to PW5 a few days later with section 4 completed. PW5 said he knew none of the supporting members who claimed to have personally known him for between 18 months and two years.

77. PW5 later received a phone call from the Club asking him to attend an interview in connection with his membership application. He contacted Ng about this and on the day of the interview arranged to meet Ng who coached him as to what to say during the interview about the voting members and supporting members who had signed P7. PW5 was interviewed by PW2 and answered questions from PW2 in a manner consistent with the information supplied in P7. PW5’s application for membership was not accepted by the Club.

Conspiracy

78. It was not disputed that, before the meeting of PW5 and D7 on the 10 October 2009, PW5 and D7 had never met. The month previously, PW5 met Robert Ng who was to assist PW5 in pursuing an application for Racing membership. At a meeting between PW5 and Robert Ng, Ng gave PW5 P7, the Racing membership application form which had been issued by the Club to D7. Ng later contacted PW5 and told him to expect a phone call from D7. D7 later contacted PW5 and a meeting was arranged at D7’s home. At that meeting D7 completed and signed Section 2 of the application form, the part for completion by the Proposing Voting Member. D7 falsely stated he had known PW5 for 3 years, that PW5 had many friends who are friends with PW5 and do business with PW5 and that he had done business and some social affairs with PW5.

79. There was no evidence that D7 knew Mackie or those signing as supporting members to P7 or had any knowledge of their involvement with signing P7.

80. At the very least, there was a conspiracy between D7 and PW5. D7 filled in P7 providing false particulars. PW5 was clearly in agreement with that and later submitted P7 to the Club knowing it contained false particulars. Section 1 of the form, which was signed by PW5, CB79, states inter alia:

· that the applicant has “ensured that all the details given in this application are true in all respects in order that the Stewards may assess my suitability to become a Racing Member

· I agree to submit to the Club any evidence requested to support my application;

· I agree that the Club may approach my bank, the persons who are named in support of my application and other authorities, including the Police and other law –enforcement agencies to conduct the necessary background checks”

81. PW5 was later informed that he would be required to be interviewed in connection with his application and met up with Robert Ng before the meeting so that Ng could coach him about what to say about the persons he had arranged to sign P7. PW5 repeated to PW2 the lies set out in P7. Clearly Robert Ng was a party to the conspiracy. He clearly knew that D7 was not acquainted with PW5. He had supplied PW5 with the application form which had been issued by the Club to D7. The form makes it quite clear that persons proposing and supporting applications for membership must have personal knowledge of the applicant and, in the case of proposing and supporting members, be able to give a detailed description of his association / acquaintance including family background.

82. I was sure that PW5, D7 and Ng had agreed to falsely state or permit to be falsely stated in P7 that D7 had personally known PW5, the length of their acquaintance and the nature of that relationship. I was sure that D7 was not in a position to make an informed judgment as to PW5’s suitability for Racing membership.

Were these false statements material?

83. Application forms for Racing membership of the Club state in the sections to be completed by the proposing and seconding voting members that :

· To uphold the integrity of the Club, Voting Members should make an informed judgment on the applicant and his/her reputation before considering either proposing or seconding his/ her application.

· The Proposing and the Seconding Voting Members must elaborate on the applicant’s suitability based on their own assessment of the applicant’s character and social standing, and have personal knowledge of the applicant for a reasonable period of time

84. The box to be completed by the Voting member reinforces the situation by stating

“ I have known ………. personally for……….year(s) by virtue of the following: ( a detailed description of your association/ acquaintance, including family background)

85. There are concluding declarations to the effect that the Voting Member has received no advantage for proposing/ seconding the application and that to the best of his knowledge the information given by the applicant is true.

86. The prosecution produced a letter, P3, dated 29 June 1999 from the then Chairman of the Club addressed to Voting Members and Honorary Voting Members of the Club drawing attention to the problem the Club had encountered with applications for membership being rejected due to the tenuous relationship between the candidate and his proposer and seconder and applications being linked to business advantages. P3 also highlighted the problem of relying on recommending or seconding candidates based solely on the advice of an intermediary and the importance of the Club gaining a good knowledge of the candidate. The letter concludes with a request for all voting members to be more precise when completing application forms and that seconding a candidate on the recommendation of another member, specifically in the section concerning knowledge of the applicants, it is not enough simply to rely on the proposer’s recommendation, the secondor must satisfy himself that the applicant is suitable.

87. PW1 produced a circular dated 27 June 2002, Ex P5, CB66, issued to all voting members and honorary voting members. Annexe B refers to proposers and seconders recommending candidates known to them personally and who are of suitable personal quality. It goes on to state that

“ Voting members are asked to provide information on their association with candidates and to describe fully the nature of their relationship. When seconding a candidate for membership, the Seconder should not base his sponsorship on the recommendation of the Proposer, but should rely on his own opinions of the candidate.

2. In addition, the three supporting members vouching for the candidates are required to declare their length of acquaintance with the applicant and their reasons for supporting him.

3. Each applicant is asked to provide detailed information on his personal, business or professional background, any community service carried out and any horse-racing or ownership interests. Such information assists the Stewards in their assessment of the applicant’s qualities and suitability for membership”

88. The annexe states that voting and supporting members are required to state that they have received no advantage.

89. It was not disputed that D7 was a Voting member at the time these circulars were distributed. In any event, in my view, they simply underline the matters set out in the application form.

90. It was suggested that these considerations were not material in that Racing members enjoyed comparatively few Club privileges and that the Club benefitted greatly from the financial contributions received by way of entrance fee, membership dues and general expenditure from Racing members. It was pointed out, inter alia, that unlike Full members, Racing members could use none of the Club’s recreational facilities, received only two badges for admission to each race meeting and had access to enclosures with restricted views of the track.

91. In order to apply for Full Club membership, applications could only be made by racing members. Racing members had the right to participate in the ballot for horse ownership.

92. It was suggested that a practice had developed for members to sign if asked by someone they knew, to recommend their candidate for Racing membership, even if they did not know the applicant personally. It was pointed out that the Club had 22,000 members but only 270 Voting or Honorary Voting members. It was suggested that, given the age of most Voting members, they would not know so many persons willing to join and yet the Club encouraged them to put forward 5 or even 10 Racing Members each year. It was suggested that the member would meet the candidate a couple of times to check on them as best they could.

93. In support of this argument I was referred to the evidence of PW12 who said that he might support an applicant he has only met a couple of times, which could be over a period of 6 months.

94. My attention was also drawn to the fact that the Board of Stewards do not publish any rules in relation to their selection criteria as required by the Articles of Association.

95. However, in my view, the Stewards have make it very clear in the application form that they are tasked with the responsibility of upholding the integrity of the Club and in order to make an informed judgment on applicants they rely on those supporting applications for Racing membership to be able to vouch for the reputation and suitability of the applicant for Club membership.

96. PW12 stated that he would accurately state the length of his acquaintance with any applicant for Racing membership supported by him. He said as regards PW3 he relied on what he had been told by D10 about having met PW3 previously.

97. I accept that the Club is a private company limited by guarantee and that there are no shareholders. However the Club is an extremely important institution in Hong Kong. It is one of the largest racing organizations in the world. It is the only authorized operator of horseracing in Hong Kong. The Club is the largest taxpayer in Hong Kong and, after payouts and expenses, the surplus goes to the Club’s Charitable Trust which in the financial year 2009/2010 distributed donations totaling HKD1.5 billion. Public confidence in the integrity of the Club is very important. The Voting Members and Honorary Voting members perform a very important function in ensuring that only persons of integrity are allowed to join the Club.

98. It is quite clear that the Club takes this responsibility very seriously and sets out clearly in the application form that only suitable persons should be put forward for Club Racing membership. In my view, there can be no doubt that the lies made by D7 as set out in P7 are material lies.

99. I noted also that although the first two charges were not brought under the Prevention of Bribery Ordinance Cap 201, for the purposes of that Ordinance the Club is regarded as one of the 102 public bodies listed in Schedule 1 to the Ordinance. As mentioned at p.243 in the second edition of Bribery and Corruption Law in Hong Kong by McWalters:

“ All the bodies listed have some involvement in the public life of Hong Kong. They include utility companies, educational institutions, arts bodies, transportation companies, radio and television broadcasting companies, the Hospital Authority, the Airport Authority, the Stock Exchange, the Jockey Club, the Equal Opportunities Commission, the Privacy Commissioner for Personal Data and the Electoral Affairs Commission.”

100. McWalters goes on to state at p.244 that this covers any organization which the ”Government decides has such a substantial and important role in the public affairs of Hong Kong that is should be made a public body”

Conspiracy to Defraud

101. I have referred above, in some detail, to a number of cases which explore the parameters of this offence and whether it is confined to conspiracies which prejudice the economic interests of the victims or where the victim is a public authority or holder of a public office and the advantage secured “does not cause anything that can fairly be called either a pecuniary or an economic injury to the person deceived”(Welham p. 124 per Lord Radcliffe).

102. In Mo Yuk Ping the Court of Final Appeal at paras. 52 and 53 refrained from resolving the question of whether conspiracy to defraud extends to causing non-economic loss or prejudicing non-economic interests, because arguments for and against had not been put in that case. I noted that at para 55 the court in Mo Yuk Ping stated that the offence did not extend beyond “contrary to public duty’ to “contrary to private duty” situations. The prosecution submit that the law in Hong Kong is as set out in the cases of Law Kam Fai, Chan Chun Hong and Wai Yu Tsang.

103. The Club was incorporated in 1930 and is limited by guarantee, there are no shareholders. None of the members are entitled to benefit from any profits of the Club. As I have stated above, the Club is one of the largest racing organizations in the world and the only authorized operator of horseracing in Hong Kong. It is the largest taxpayer in Hong Kong and after payouts and expenses the surplus goes to the Club’s Charitable Trust which distributes substantial donations. As mentioned above the Club has an important and substantial role in the public affairs of Hong Kong.

104. The manner in which the Club is run therefore does have great significance for the Hong Kong public. The Club makes it quite clear that those members of the Club who propose, second and support applications for membership must personally know the applicants and vouch for their integrity and suitability for membership. These matters are clearly set out in the application forms. Each of them are required to state at the outset the number of years they have known the applicant “personally”. The section to be completed by the proposer and secondor states that in order to uphold the integrity of the club what is required from them is an “informed judgement” as to the applicant’s integrity and suitability for membership. For leading members of the Club to deliberately mislead the Club management by supplying false information concerning candidates for membership is clearly detrimental to the Club’s integrity and causes the Club to act contrary to its own interests. The application forms make it clear that the Club relies on such representations. This in my view constitutes a conspiracy to defraud the Club.

105. Voting members of the Club form a limited class of elite members given special responsibilities. They clearly owe a duty to the Club and also to the Hong Kong public which expects that high standards of integrity and probity will be used by them in exercising their powers in a manner which safeguards the interests of the Club.

106. In my view, the deceitful behaviour of the conspirators also creates a risk of economic loss to the Club in that this practice would affect the Club’s reputation, making it less attractive to persons of integrity and undermine public confidence in the Club. The fact that voting members, an elite and privileged group of members, would be prepared to tell lies to support applicants for Racing membership, clearly undermines the integrity of the Club and public confidence in it. Their conduct is clearly detrimental to the interests and reputation of the Club. These are matters which could adversely affect the economic interests of the Club.

Dishonesty

107. I had no doubt that the conspirators were acting dishonestly according to the criteria laid down in Ghosh as set out above.

108. I had no doubt that D7 and PW5 had dishonestly conspired to defraud the Club as alleged. I had no doubt that the person who introduced PW5 to D7 was a party to that conspiracy.

Charge 2 – D7 and D10

109. There was little dispute about the evidence of PW3 in relation to Charge 2. Towards the end of 2008, PW3’s father, PW4, was approached whilst at the race track about becoming a Racing member of the Club. PW4 was not interested but he spoke to his son about the matter. Although PW3 had no interest in horse-racing he went along with his father’s suggestion that he should proceed with an application for Racing membership.

110. Later, in January 2009, PW3 found P6 on his office desk. P6 had been issued by the Club to D7. It bore D7’s name and membership number on page 2, Section 2, of the form, which is the section to be completed by the Proposing Voting Member.

111. PW3 said that he later received a phone call about his application for Racing membership from a Billy Tang who made an appointment for him to go to the home of D7 in Kadoorie Avenue in mid-January 2009. This was the first time PW3 had met D7. They exchanged background information and PW3 left P6 with D7. One week later, PW3 received a phone call from D7 requesting PW3 to return to his home. PW3 again met D7 at D7’s home and D7 returned to him P6 with Section 2 completed, signed and dated by D7. These were the only two occasions on which PW3 and D7 met.

112. D7 stated that he had known PW3 for 3 years and that

“ [PW3] is a fine well educated young man. He is a good business person. I have known his father a number of years and we have many friends in common.[PW3] will be a good member of the Club and a good member[sic]”

113. In proposing PW3 for Racing membership D7 stated that PW3 had the following qualities:

“[PW3] enjoys racing and would make a very very good owner. He would like to be an owner. I highly suggest him to membership”

114. D7 falsely stated in P6 at CB71 that he had known PW3 for three years, that he had known PW3’s father for a number of years and that they had many friends in common. I accepted the unchallenged evidence of PW4 that he had never met D7.

115. PW3 was later again contacted by Billy Tang and arrangements were made for PW3 to go to the office of D10, a Full member of the Club , in Nathan Road, Yaumatei. PW3 had not met D10 before. In late February 2009 PW3 went to D10’s office with P6 which he gave to D10 for him to sign. PW3 and D10 discussed their backgrounds and PW3 claimed that D10 asked him for laisee. PW3 alleged that he had not prepared laisee and he left D10’s office with P6 unsigned by D10. PW3 contacted Billy Tang about what happened and subsequently an arrangement was made for him to meet D10 at the coffee shop of the Eaton Hotel in Yaumatei on or about 2 March 2009. PW3 took P6 with him and the purpose of the meeting was for D10 to sign P6. D10 signed P6 at CB 73 where he falsely stated that he had known PW3 for 2 years. D10 also wrote on the form:

“[PW3] is a successful businessman in Re Joint Motors Company Limited. He also loves horse racing and really wants to be a horse owner”.

116. PW3 claimed that, at this meeting, D10 again asked him for laisee but he did not respond to that request.

117. D10 gave PW3 the name card of Dr Ho Wai Tak, PW12, P17 CB104, and instructed PW3 to meet with PW12 who would sign P6.

118. PW3 went to the clinic of PW12 which is across the road from the Eaton Hotel on 10 March 2009. PW3 and PW12 spoke about their backgrounds and PW3 had P6 with him. PW12 was the last to complete P6. PW12 completed section 3 of the form, CB72, which he signed and dated. The meeting lasted about 10 minutes. PW12 stated, inter alia, at CB72, that he had known PW3 for one and a half years and had met at a lunch meeting to discuss business . PW3 said this was the first time he met PW12 and the statements that PW12 had known him for one and a half years and that they had previously met at a lunch meeting to discuss business were untrue. PW12 claimed that D10 told him that PW12 had previously met PW3 at a lunch meeting and he relied on what he was told by D10.

119. PW3 said that he knew the second and third supporters who completed and signed section 4 of P6.

120. In his record of interview, Ex P20, D10 admitted that he signed P6 as the first supporting member and that he was wrong to say he had known PW3 for 2 years. D10 denied soliciting laisee. D10 said he took PW3 to see PW12. D10 said he was helping a friend but he could not recall which friend.

Conspiracy

121. After discussions with his father, PW4, PW3 found on his desk a blank Club Racing Membership form, P6. The form had been issued to D7. PW4 later got a call from Billy Tang making an appointment for PW3 to go to the home of D7 with P6 which D7 was to sign as the proposer for racing membership. PW3 had not met D7 before. I was sure that D7 completed and signed section 2 of the form making false assertions which both he and PW3 knew to be false and material and intending that P6 should be provided to the Club to support PW3’s application for Racing membership. There was clearly a conspiracy between PW3 and D10 and. in my view, Billy Tang, must have been a party to that conspiracy. He must have known that D7 would be prepared to lie about his relationship with PW3.

122. Billy Tang subsequently requested PW3 to go the office of D10 in Yaumatei. As was the case with D7, PW3 and D10 had never met previously. I noted that D10 was a Full member of the Club and not a voting member or honorary voting member like D7 and was not therefore in a position to propose or second candidates for Racing membership. Moreover, he would not have seen the circulars P3 and P4 which were circulated amongst the Voting and Honorary Voting Club Members. I was satisfied so that I was sure that D10 deliberately filled in and signed section 4 of P6 and falsely stated that he had known PW3 personally for 2 years.

123. D10 then gave PW3 the particulars of PW12, a voting member of the Club, for PW3 to meet up with PW12 to sign P6. I was sure that D10 knew that PW3 had never met D10 previously and that he gave him the particulars of PW12 so that PW12 would complete and sign the relevant part of P6 and that this would inevitably involve PW12 making false declarations. I was sure that PW3 was introduced to D10 by someone who must have known that D10 would be prepared to sign P6 and make material false disclosures. Each declaration by the proposer, secondor and three supporting members starts with the statement as to how long they had known the applicant. In my view, the length of time the supporting member knew the applicant is material and I was sure that both D10 and PW3 knew that and deliberately lied.

124. I bore in mind that PW12 claimed that, at the time, he thought he had met PW3 previously and claimed that he relied on what he was told by D10 about his previously meeting PW3 about a year before. I reminded myself that, as an accomplice witness, PW12 would have motive to lie. In his record of interview, D10 makes no reference as to what he told PW12 about PW3. PW12’s evidence as to what he claims he was told by D10 was not challenged in cross-examination. I was sure that D10 had introduced PW3 to PW12, an honorary voting member, with a view to PW12 making a declaration about PW12 knowing PW3 which D10 knew would be false with a view to assisting PW3 to make his application for Club membership. I was sure that they both knew such false declarations were material and made to deceive the Club.

125. There was no evidence that D7 had met either D10 or PW12. I reminded myself that parties to a conspiracy may join or leave a conspiracy at different times.

126. I was satisfied so that I was sure that D7 and PW3 conspired between themselves to dishonestly defraud the Club by falsely stating in P6 that D7 and PW3 had known each other for 3 years and that D7 had known PW3’s father for a number of years. I was sure that D7 was not in a position to make an informed judgment on the suitability of PW3 for membership. I was sure that the person who introduced PW3 to D7 must have known that D7 would be prepared to make false declarations in P6. I was sure that the statements were material.

127. I was sure that PW3 and D10 had dishonestly conspired to defraud the Club by falsely stating the length of their acquaintance and I was sure that the person who introduced PW3 to D10 must have known that D10 would be prepared to make false declarations. I was sure that the false declarations were material. The Club would be induced to accept the reasons stated by D10 supporting PW3’s application for membership based on the false assertion by D10 that he had known PW3 for two years. I was sure that PW3 and D10 knew the false declarations were material.

128. I was sure that D10 introduced PW3 to PW12, a voting Club member. I was sure that D10 was aware that PW3 had never met PW12 previously. I was sure that the purpose of D10 introducing PW3 to PW12 was with a view to PW12 supporting PW3’s Racing membership application by making false declarations about knowing PW3 and the length and the nature of their relationship. I was sure that PW3 and D10 were aware that these false declarations were made with a view to misleading the Club into believing that PW12 was in a position to vouch for the integrity of PW3 and his suitability for Club membership. I was sure that the false declarations were material and that PW3 and D10 knew that they were.

129. I was sure that the parties to the conspiracy were dishonest and that their actions amounted to a conspiracy to defraud the Club as alleged.

Charges 3 and 4 – D10

130. Each charge alleged that D10 as an agent of the Club solicited an advantage from PW3 as an inducement to, reward for or otherwise on account of D10 supporting PW3’s application for Racing membership.

131. It was not disputed that D10 had completed and signed section 4 of P6 as the First Supporting Member of PW3’s application and that D10 had falsely stated he had known PW3 personally for 3 years. It was also not disputed that D10 introduced PW12 to PW3 for the purpose of PW12 completing section 3 of P6 which is for completion by the Seconding Voting Club Member. PW3 had not met PW12 before.

132. There was an issue as to whether D10 had solicited laisee on either occasion.

133. In cross-examination PW3 agreed that in his witness statement, made to the ICAC on 22 May 2011, he stated that on the first meeting with D10, D10 hinted at laisee and at the second meeting D10 hinted that PW3 should give D10 an advantage. PW3 was unable to recall the details of either conversation. I noted that his witness statement was made more than two years after PW3’s meetings with D10 and he gave evidence in court more than three and a half years after his meetings with D10.

134. In considering the evidence relating to charges 3 and 4, I took into account the circumstances in which meetings between D10 and PW3 took place. D10 was meeting PW3, a complete stranger, yet he was prepared to fill in P6 to falsely state that he had personally known PW3 for 2 years. At the first meeting, after the mention of laisee, PW3 left D10’s office without D10 signing P6 and a second meeting had to be arranged for that purpose. D10 was also prepared to introduce PW3 to PW12 for the purpose of PW12 signing P6 as the Seconding Voting Member. From the evidence it was clear that PW3 did not know PW12 and D10 knew that.

135. I was sure that D10 was acting as an agent of the Club when he agreed to complete the first box of section 4 of P6. However, the evidence of PW3 as to what was said at the meetings with D10 in relation to laisee lacked the detail and cogency which would enable this court to be sure to the required standard that D10 did in fact seek an advantage as alleged. This is no criticism of PW3 as a witness. As I stated above, he was not required to commit these incidents to writing until after a considerable time had elapsed.

136. I therefore acquit D10 on charges 3 and 4.

Appendix

Prosecution Evidence

PW1 Ng Ting Hoi, Membership Administration Manager of the Club

1. PW1 said he joined the Club in 1995 and handled membership application matters.

 The Club

2. PW1 confirmed that the Club was incorporated in July 1930 and was limited by guarantee, there are no shareholders. PW1 said that the Memorandum and Articles of  Association of the Club provide that none of the members are entitled to benefit from any profits of the Club. Governance of  the Club is vested in a board of 12 stewards, similar to the board of directors of a company. All the stewards are  voting members of the Club elected by voting members of the Club. A Board of Management reports to the Board of Stewards and exercises executive control.

3. PW1 said the Club is one of the largest racing organizations in the world and the only authorized operator of horseracing in Hong Kong. The Club is the largest taxpayer in Hong  Kong and after payouts and expenses the suplus goes to the Club’s Charitable Trust which in the financial year 2009/10 distributed donations totaling HKD1.5 billion.

 Membership and Membership Applications

4. PW1 said that the main categories of membership are voting members, honorary voting members, full members and racing members. The number of voting members, including stewards, is capped at 200. PW1 said that when a voting member  reaches the age of 70, he becomes an honorary voting member and at the relevant time there were about 70 honorary voting members.

5. PW1 said that full members of the club are drawn from the ranks of racing members who may apply for full membership. Full membership entitles the member to enjoy all the Club’s facilities in Happy Valley,  Shan Kwong Road, Shatin and Bea’s River. However, unlike racing members they cannot become horse owners.

6. PW1 said that as at November 2009 there were 22,000 members of the club including 13,793 full members and 7,556 voting members. At that time racing membership cost HKD68,000 and full membership HKD400,000 less the amount paid to become a racing member. The entrance fee for becoming a racing members is now HKD125,000. PW1 said that racing members were required to pay monthly dues of HKD420 which have now been increased to HKD650.

7. PW1 said that to obtain racing membership, candidates have to be proposed and seconded by voting or honorary voting member of the Club and  be supported by three other members of any category of membership. PW1 produced Exhibit P2, CB35,  an application form for racing membership of the club which contains the name and membership number of the voting member or honorary voting member to whom it was issued. PW1 said that on 1 July each year every voting and honorary voting member is provided with a folder in which there are 5 application forms for racing membership. He said that the Club keeps a record serial numbers of the forms and persons to whom they were issued.PW1 said that if the voting member uses all 5 of the application forms supplied they may apply for more.

8. PW1 said that the club requires that the proposing and supporting members personally know the applicant and are able to vouch for his integrity and suitability for membership.

9. PW1 said there is an internal procedure for verifying the information supplied. PW1 said the signatures of those supporting the application will be checked and applicants may be called in for interview. PW1 said that the Club relies on the information contained in the form.

10. PW1 said that there are rules forbidding the soliciting and offering of advantages in relation to applications. PW1 said there are circulars concerning applications form issued from time to time. He produced by way of example  a letter , P3, CB 60, dated 29 June 1999, signed by the then Chairman of the Club. That letter refers to applications for membership being rejected due to the tenuous relationship between the candidate and his proposer or seconder and applications being linked to business advantages. It also highlighted the problem of relying on recommending or seconding candidates based solely on the advice of an intermediary and the importance of the Club gaining a good knowledge of the candidate. The letter concludes with a request for all voting members to be more precise when completing application forms and that when seconding a candidate on the recommendation of another member, specifically the section concerning knowledge of the applicants, it is not enough simply to rely on the proposer’s recommendation, the secondor has to satisfy himself that the applicant is suitable.

11. PW1 produced a circular dated 27 June 2002, Ex P5, CB66, issued to all voting members and honorary voting members. Annexe B refers to proposers and seconders recommending candidates known to them personally and who are of suitable personal quality. It goes on to state that

“ Voting members are asked to provide information on their association with candidates and to describe fully the nature of their relationship. When seconding a candidate for membership, the Secondor should not base  his sponsorship on the recommendation of the Proposer, but should rely on his own opinions of the candidate.

2. In addition, the three supporting members vouching for the candidates are required to declare their length of acquaintance with the applicant and their reasons for supporting him.

3. Each applicant is asked to provide detailed information on his personal, business or professional background, any community service carried out and any horse-racing or ownership interests. Such information assist the Stewards in their assessment of the applicant’s qualities and suitability for membership”

12. The annexe states that  voting and supporting members are required to state that they have received no advantage.

13. PW1 said that applicants have to authorize the club to make checks with banks and the police so as to ensure the integrity of the candidate.

14. PW1 said he knew Mackie, D7 and PW12 were voting members of the Club in 2009 when the applications for racing membership P6 and P7 were submitted. PW1 said that he was aware that D10 was a full member of the club at the relevant time. PW1 confirmed that PW3’s application for membership was approved in November 2009. He said that applications normally take about 6 months to process.

15. PW1 produced P8, a letter from the Club to D7 confirming receipt of P6.

16. PW1 produced P9, CB91, a letter from the Club to D7  dated 7 October 2009 stating that the application by PW3 had been successful.

17. PW1 produce Ex P11, CB95, a letter from the Club to D7 dated 8 December 2009, in respect of the application by PW5, P7. PW1 produced the application forms submitted by PW3 and PW5 as exhibits P6 and P7.

18. PW1 said that if the Club discovered that members had made untruthful statements in membership applications, the matter would be referred to the Board of Stewards which would decide what action to take.

19. In cross-examination, PW1 confirmed that, in relation to PW3, no disciplinary proceeding had yet been taken against him.

20. PW1 confirmed that each racing member receives 2 racing badges for each race meeting of the season which gives free access to the viewing areas reserved for racing members. He agreed that the best viewing areas were taken up by private boxes at both Happy Valley and Shatin. PW1 agreed that the public can access the public areas of the race tracks on payment of HKD10 and that overseas visitors on production of  their passports and payment of HKD80 can access the members’ enclosure at each race track.

21. PW1 agreed that racing members had no access to the excellent clubhouse facilities in Happy Valley, Shatin and Beas River and that on race days they were not allowed to park at the race track where racing was to take place unless they had a reservation at the restaurant which came with a permit for which they had to pay.

22. PW1 said that membership cannot go through on the basis that someone proposes or seconds someone they do not know. PW1 said that applications are processed on the basis that the applications are filled out honestly.

23. PW1 said that there are 350 ballots each year for allocation of horse ownership.

24. PW1 said that vacancies amongst voting members arises when a voting member dies,  leaves Hong Kong or reaches 70 and becomes an honorary voting member. He said that there were about 8-10 vacancies each year.

Articles of Association Ex P, CB11

25. PW1 was referred to various articles of the Articles of Association.

26. Article 4 (CB12) states that  a person may apply for election to membership in writing on such form of application and in such manner as the Stewards of the Club may prescribe from time to time and the mode, conduct and procedure relevant to election shall be  set forth in rules made from time to time by the Stewards of the Club. PW1 denied that there were no rules made pursuant to this Article. He said that they were recorded in the minutes of the Stewards’ meetings.

27. Article 45 (f) CB 28 states that the Stewards of the Jockey Club may make Bye-laws or rules:

(n) as to the procedure for voting at the General Meetings of  Voting Members and as to the procedure or meetings of the Stewards of  the Jockey Club or any committee or subcommittee of the Stewards of the Jockey Club;……

( r) as the procedures to be adopted at meetings of the Stewards for the Jockey Club

28. Article 46 (CB29) states that the Stewards “shall adopt such means as they deem sufficient to bring to the notice of the Members all Rules of the Club, amendments and repeals;  all the Rules of  the Club, for so long as they shall be in force, shall be binding upon all Members of the Club.”

29. Article 48 (CB29) states the no Bye-laws or Rules of Racing shall be inconsistent with nor shall they affect nor repeal anything contained in the Memorandum or Articles of Association, and any Bye-law may be repealed by an Ordinary Resolution of a General Meeting of the Voting Members of the Club.

30. Counsel for D7 produced an e-mail, D7-1, from William W Lam, the Club membership Administration Support Manager, in response to a request by Counsel for D7 to see the membership rules regarding the election of members. Attached to the e-mail were a number of Bye-laws.

31. PW1 said that rules relating to mode, conduct and procedure  relative to election were set out in the minutes of meetings of the Stewards which were not circulated. PW1 said that the rules made by the stewards in relation to applications for membership are set out in the application form which has to be signed by the applicant.

32. PW1 agreed that the turnover of voting members was about 5% annually and new members are selected by the stewards. PW1 said he did not take part in that exercise.

33. PW1 said that the decision as to who will become a racing member of the Club is decided initially by a committee of 5 Stewards and then by the 12 Stewards. PW1 said that they make their decision based on the information supplied. PW1 said the Stewards did not have to give reason for their decisions. PW1 said that P3, the letter from Alan Li in 1999, and P4, the circular of June 2002, were the only pieces of correspondence on this topic.

34. PW1 said he did not know which rules were applied by the Stewards when dealing with applications for membership.

35. PW1 said he could only ever recall one voting member being disciplined by the Club’s Disciplinary Committee.

PW2 Lau Yiu Nin, Chief Investigator of the Security Section of the Club

36. PW2 said he is a former ICAC officer and that his section has many former ICAC officers. PW2 said his responsibilities include carrying out integrity tests on candidates for membership.

37. PW2 said that he carried out an interview at the Club headquarters with PW5 on 26 January 2010 in relation to his application for racing membership, P7, CB 79. PW2 said they conducted a vetting process which included  media, legal reference and financial checks on applicants and called some of  them in for interview. PW2 said at the beginning of the interview he would have asked PW5 about his family background, education, business, racing interest, betting knowledge and his racing or related acquaintances as one of the criteria for voting members to recommend candidates is their personal acquaintance of the candidates. PW2 said he asked PW5 about his proposer, D7 and his seconder,  Mr Mackie. PW2 said he asked him about the length and circumstances of his acquaintance with them.

38. PW2 said that PW5 told him that he had known D7 for several years and that D7 was now retired and had visited his money exchange shop to exchange HK currency for US currency. He said that PW3 told him he had met D7 for a meal with 3-4 other persons. PW2 said that PW5 told him that he had been introduced to D7 by a Mr Wong Wai who was in the garment trade but who was not a Club member and also through a person called Wong Hau Cheong. PW2 said that PW5 said he had visited the home of  D7 once and had seen racing related photographs.

39. PW2 said that PW5 also told him about the meeting with Mr Mackie and said that he had once been to Mackie’s office in Central Plaza Wanchai. PW2 said that PW5 told him that Mackie had told PW5 that he was a sporting person particularly interested in swimming and golf. PW2 said PW5 told him that the meeting took place about one year previously.

40. PW2 said that PW5 told him about his interest in horse-racing.

41. PW2 said that the interview lasted about one and a half  hours and he later gave a report about the interview to his boss together with the application form P7.

42. PW2 said that this matter had not been reported to the ICAC by the Club.

PW4 Chan Yuet Ming, the father of PW3

43. PW4 gave evidence under immunity, Ex P24. He said he had read and understood the immunity.

44. PW4 said he had been in the taxi business for 30 years. He said he has maxi-cabs and owns two companies which run the businesses. PW4 said his son PW3 had worked in the company for 8-9 years since he came back from College in the USA.

45. PW4 said he knew a person called Yung Chak Man (Yung) who has also been in the taxi business for 30 years. PW4 said that Yung was a member of the Club and a horse owner and he sometimes went with him to race meetings. PW4 said that at about the end of 2008 he met a person called Billy at a race meeting. PW4 said that Yung told him that Billy’s surname was Tang. PW4 said that Billy Tang came up to speak with him and kept bragging about buying horses, betting and knowing lots of persons at the Club. PW4 said that Billy Tang tried to interest him in joining the Club but PW4 told him he was not interested. PW4 said that Billy Tang asked him if he had any children who might be interested and PW4 said he told him he had a son but his son did not bet either.

46. PW4 said he later told Tang that he would go back and ask his son if he wished to become a member. PW4 said he had a number of conversations with Tang about the procedures for applying for racing membership during the meal and there were conversations afterwards. PW4 said that he considered it would be beneficial for his son to join the Club to widen his social network.

47. PW4 said that he later received a blank application form for racing membership of the Club which he put on his son’s desk. PW4 said he discussed the matter with his son and his son proceeded to apply for racing membership which was successful. PW4 said he did not know D7, PW12 or D10.

PW3 Chan Chi Chung – Applicant for Racing Membership P6, CB69

48.            PW3, the son of  PW4, said that he works in his father’s business  and was educated to tertiary level. He said that he holds a university degree which he gained in 2002.

49.            PW3 said he understood that he was giving evidence under immunity and he understood the immunity, P25.

50.            PW3 said he was arrested on 18 November 2010 by ICAC in connection with his application to join the Club.

51.            PW3 said his father talked to him about joining the Club in around the end of 2008. PW3 said at that time he did not know much about horse-racing and had no interest in it. PW3 said one day he found a folder on his office desk around the beginning of January 2009 and it contained an application for racing membership of the Club. PW3 said he had not discussed a possible application with anyone other than his father. PW3 said after he received the application form a person called Billy Tang called him about the application and  gave  PW3 assistance in making the application. PW3 said that Tang gave him the address of D7 and asked him to approach D7 who would help PW3 with the application.

52.            PW3 said that Tang made an appointment  for him to go to the home of D7 in Grand Court, Kadoorie Avenue. PW3 said he went to see D7 in Mid January 2009. PW3 said that when he arrived D7 asked him to sit down and he told him his background and he told D7 his background. PW3 said that D7 expected to see him as an appointment had been made. PW3 said that they discussed nothing special, just backgrounds were discussed, and the discussion lasted 20 minutes. PW3 said that D7 said that he was a horse owner and a Club member. PW3 said that D7 said he told PW3 about his background as the Club may wish to meet with him and he may be asked about D7’s background. PW3 said D7 gave him his business card, P16, CB103. PW3 said that when he saw D7 he took with him the Club membership application form and he gave it to D7 who was to sign for him. PW3 said that when he left, he left the form with D7.

53.            PW3 said he saw D7 one week later after being telephoned by D7 who asked him to go to his home to meet again. PW3 said that on that occasion he was given back the application form and left. PW3 said the form is P6, CB69. PW3 said that page 2 of the application form is signed by D7 on the date of the second meeting, 20 January 2009. PW3 said that his English name is Jack.

54.            PW3 said the statements made by D7 on the application form were not true. PW3 said it was not true that D7 had known him for 3 years. PW3 said he never met him before their first meeting that month and he only met him twice. PW3 said as far as he knew D7 did not know his father. PW3 said they did not have many friends in common. PW3 said he did not enjoy racing nor was it true PW3 would like to be a horse owner. PW3 said when he received back P6, pages 72-74 were blank.

55.            PW3 said after seeing D7 he saw D10 about his Club membership application. PW3 said he saw D10 around mid –February at an office in a commercial building in Nathan Road. D10 said he did not know him already. D10 said he went to see him as Billy Tang made an arrangement for him to see him. PW3 said he knew how to meet D10 as Billy gave him an address which was in Yau Ma Tei. PW3 said he took with him P6. PW3 said he met D10 who introduced himself. 

56.            PW3 said that the meeting with D10 lasted about  10 minutes and they discussed their backgrounds. PW3 said that they discussed signing the form P6. PW3 said D10 asked him for a laisee. PW3 said he could not recall the exact words he used. PW3 said that D10 did not mention a specific amount. PW3 said that he did not know what was going on and he said he had not prepared these things, meaning he had not prepared anything, he only had the form with him. D10 said that he could go then. PW3 said that when D10 asked for laisee P6 was with D10. PW3 said he had gone there for signature of the form.

57.            PW3 said that after leaving D10’s office he phoned Billy and spoke with him. PW3 said that he met D10 again at the end of February or beginning of March. PW3 said someone rang him about the next meeting which was to take place in the Coffee Shop of the Eaton Hotel in Yau Ma Tei on 2 March 2009 . PW3 said the purpose of the meeting was to sign P6. PW3 said he took P6 with him and D10 attended the meeting. PW3 said he gave P6 to D10 as he needed D10 to sign the form. PW3 said that D10 signed at CB73. PW3 said that the manuscript writing in the top box for the first proposer was written by D10. PW3 said all the manuscript words in the box were written by D10 and were untrue.

58.            PW3 said it was not true that D10 had known him for two years nor was PW3 a lover of horse racing and wished to become a horse owner. PW3 said he was a businessman with Re Joint Motor’s Company Limited. PW3 said he may have spoken with D10 about his background when he first met him.

59.            PW3 said that the second and third supporting members  referred to in P6 were known to him. PW3 said he had known Tong Yeuk Fung for 20 years and Kwong Nga Cheong for 10 years.

60.            PW3 said that the second meeting lasted about 10 minutes. PW3 said at the second meeting D10 also asked him for laisee. PW3 said D10 did use the word laisee. PW3 said he did not respond to that request. PW3 said he said nothing as he did not prepare laisee.

61.            PW3 said he received a name card from D10, P17 CB104, with the name Dr Ho Wai Tak  just before they parted. PW3 said that D10 told him go to look for Dr HO who would  sign P6.  PW3 said after the meeting he left with P6 and P17.

62.            PW3 said he later went to see Dr Ho, PW12, and PW12 signed P6 at page CB page 72 the same day he saw him. PW3 said he could not recall how the arrangements were made to see him. PW3 said that he saw PW12 on 10 March at the address on his business card which was his clinic across the road from the Eaton Hotel.

63.            PW3 said that when he arrived at the clinic he told a nurse he had an appointment with Dr Ho and he went in to see him. PW3 said that they spoke  a little about his background. PW3 said he had P6 with him. PW3 said that Tong and Kwong had already signed their parts at CB 73, PW12 was the last to complete the form. PW3 said he was present when PW12 wrote in the box at CB72 and PW12 signed and wrote his name on the bottom. PW3 said this was the first time he met PW12 and the statement that he knew PW3 for 1.5 years is not true. PW3 said he did not meet him at a lunch meeting introducing his company products as stated. PW3 said that he did not tell him he was a keen racing fan. In the second paragraph it states PW3 is the director of Cipher International which is true and he cannot recall how PW12 knew that. PW3 said the statement that PW3 was involved in mens and ladies shoes was told to someone but he could not recall who. He did not tell him he wanted to be a horse owner and it was not true. PW3 said he was with PW12 for around 10 minutes.

64.            PW3 said that after obtaining all five signatures he submitted the form to the Club. PW3 said that the parts of the form at CB pages 74-7 were filled out by him but he could not recall when as he did it at different times. PW3 said he signed at page CB 69.

65.            PW3 said that he later submitted it to the Club personally.PW3 said he filled in Page CB76 which says he wishes to be a horse owner and loves horse racing which is untrue. He said his friend gave him the names of the favourite jockey, trainer and horse which he put on the form.

66.            PW3 said he was never interviewed by the Club and he was later told his application was approved. PW3 said that he paid HKD60,000 and became a racing member of the Club.

CX by D7

67.            PW3 said he did not carefully read the instructions on P6.

68.            PW3 agreed he signed at CB page 69. PW3 said he printed his name and signed the form which he did not date.

69.            PW3 said he later went to Kadoorie Avenue in mid-January 2009 where he met D7. PW3 said that, after introducing themselves, they sat down and exchanged personal details. PW3 said that D7 asked him where he was born and educated and his occupation. PW3 said that he made no notes of the conversation and he had no reason to believe that he would have reason to recall the details of the conversation at a later date. PW3 said he was not arrested until 22 months later on 18 November 2010 and by then he had largely forgotten the details of the conversation with D10. PW3 said that his first witness statement was made on 26 May 2011.

70.            PW3 agreed he never mentioned the name of anybody who told PW3 to see D7. PW3 said the meeting lasted 20 minutes, it did not last  40 minutes to an hour. PW3 said he cannot recall seeing photographs of D7 with horses. PW3 said he recalled D7 saying he was British and a member of the Club. PW3 said D7 did say he had owned horses. PW3 said D7 did ask him about PW3’s background. PW3 said  that he did not recall D7 asking him about why he wished to join the Club. PW3 said he did think he told D7 he was interested in horse racing but he cannot recall. PW3 said he did not recall that the purpose of the meeting was for D7 to satisfy himself that PW3 was an appropriate person to join the club. PW3 said he could not recall if anyone told him to tell D7 he was keen on racing, keen to join the club and keen to own a horse. PW3 said he could not recall D7 saying he was often asked about club membership and asked the same set of questions. PW3 said that he did recall D7 saying he was retired.

71.            PW3 said he did not think D7 and his father knew each other but he said that he did tell the ICAC that he had no idea whether or not they knew each other.

72.            PW3 agreed that at no time was there any mention of any money being paid to D7.

73.            PW3 said he did not recall getting the impression that D7 was genuinely trying to ensure that PW3 was suitable for membership.

74.            PW3 was referred to Exhibit P6, CB 71. PW3 said that he had not known D7 for 3 years as stated. PW3 said he did not dispute that he was a fine well –educated young man and a good business person. PW3 said he did not know if D7 knew his father for a number of years and that they had  many friends in common. PW3 said he could not dispute that he would be a good member of the club.

75.            PW3 said he did not think he would have told him he enjoyed racing. PW3 said he could not recall if he told him if he would like to become an owner.

76.            PW3 said that during the first meeting with D7 he did not pay much attention to what was going on.

77.            PW3 said that in his mind he was going to meet someone who would help him become a member of the Club. PW3 said he did not agree to cause harm to the club

CX -  D10

78.            PW3 agreed that he still is a member and he has not been told that his membership would be taken away even though the Club knows the contents of  his application are untrue

79.            PW3 said his father wanted him to join the Club and he did not think about whether wanted the application to succeed. PW3 said he did it to please his father

80.            PW3 said he did not realize he would have to express some interest in horse racing to join the Club, he wanted to use the facilities. PW3 said no one asked him if he liked racing. PW3 agreed that if he had been asked he would have told them he liked racing as he stated in P6 as regards his interests. PW3 said Billy Tang told him to write that down.

81.            PW3 agreed that he signed P6 with a lie on it.

82.            PW3 said that Mr Tong, his second supporting member, said he would be a good member and horse owner and he knows Tong personally and he put that  in to help him get in to the Club

83.            PW3 agreed that, if asked, he would have said he was interested in racing and becoming a horse owner.

84.            PW3 said he had an interest in a shoe business but he could not recall telling PW12 about that.

85.            PW3 said he was arrested by the ICAC  a few days after his father had been arrested . PW3 said that he  was arrested at the Hong Kong International Airport when coming back from Japan. PW3 said that he was taken for interview and refused to answer questions. PW3 said he knew his father had been arrested. PW3 said  he did not know that his father had made admissions.

86.            PW3 said he knew why he had been arrested because he had said things that were not true in his application. PW3 agreed that he was frightened.

87.            PW3 said his father did try to make his membership into a full membership and he knew his father had paid some money and met some persons to sponsor him for that.

88.             PW3 said he was not aware he would be arrested. PW3 said he had a lawyer at the ICAC offices

89.            PW3 said he became a witness after negotiations by his lawyer with the ICAC. PW3 said that this was decided at the beginning of the year.  PW3 confirmed that he was never charged.

90.            PW3 said that his lawyer told him to go to the ICAC to make  a witness statement and that this was a good way out.

91.            PW3 said the ICAC did not tell him what to say. PW3 said he went with a lawyer. PW3 said he told them what happened which was written down. PW3 said that as he was talking they wrote it down and he signed it that day.

92.            PW3 said he was aware the ICAC would be interested in money payments. PW3 said he was cannot recall how he felt or whether he was anxious to be accepted as a witness rather than being charged. PW3 said he was only telling the truth.  PW3 said he went to the ICAC as his lawyer told him to go to be a witness. PW3 said he did understand that the alternative was to be charged. PW3 said that he wanted to be accepted as a witness and he just told the truth. PW3 agreed he wanted to tell them what he recalled.

93.            PW3 was shown his statement made on 22 May 2011. PW3 said at paragraph 10 he dealt with the meeting with D10.

94.            PW3 said he did not recall D10 talking about an instrument. PW3 said he did not recall him talking about it being busy time of year for him. PW3 said he did not recall D10 asking about how he got to his offices. PW3 said he did not own a sports car. PW3 agreed they talked about their backgrounds. PW3 said he could not recall what business D10 said he was in or what D10 said about the club. PW3 said he agreed that the meeting was about D10 finding out about PW3 and getting P6 signed.

95.            PW3 said in his witness statement he did not pay attention to the information given and that D10 hinted about giving laisee. PW3 then said that  D10 literally asked him for laisee, he did not hint. PW3 said that he  did recall that D10 asked him for laisee and he did not recall why the word hinted was used in the statement. PW3 said that he recalled the word laisee and that is why he used the word hinted.

96.            PW3 was referred to paragraph 11 where he said D10 hinted at giving him an advantage.. PW3 agreed it was just a hint and that D10 said something to give him that impression. PW3 agreed that the right words were hinted at laisee.

PW5 Lam Wai Ming – Racing Member Applicant – Ex P7, CB79

97.            PW5 said that he submitted the application for racing membership, P7, received by the Club on 24 November 2009.

98.            PW5 said he realized he was giving evidence under immunity and understood the contents and meaning of the immunity, Exhibit P26.

99.            PW5 said he is fond of gambling on horses and in view of the size of his bets, in 2007, he was provided by the Club with betting facilities provided to the elite customer class. PW5 said that he said he was not a member of the Club at that time.

100.       PW5 said he knew a man called Po Kwo whose real name is Lam Man Po whom he first met between 2004-5. PW5 said that in May or June 2009 he had a conversation with Po Kwo about the Hong Kong Jockey Club and Po Kwo asked PW5 if he was interested in becoming a Club member and PW5 said that he told Po Kwo that he was interested. PW5 said Po Kwo said he would think of a way for him. PW5 said that after that, in around September 2009, Po Kwo telephoned him and gave him the name of someone whom Po Kwo said could help PW5 join the club. PW5 said the name of the  person mentioned by Po Kwo was Robert Ng Ka Ki. PW5 said that Po Kwo told him if he was interested in becoming a member to call Robert Ng and Po Kwo gave him a telephone number on which he later called Robert Ng. PW5 said he told Robert Ng that  he was introduced by Po Kwo and he wanted to become a member of the Club. PW5 said that a meeting was suggested by Robert Ng to meet at Kanbo Restaurant in Argyle Street Mong Kok. PW3 said that he met Robert Ng there and after a discussion he left the restaurant. PW5 said the conversation lasted 1-2 minutes and he later received a phone call from Robert Ng. PW5 said that they  arranged to meet up at the same restaurant and  Ng gave PW5 P7. PW5 said that Robert Ng said that PW5 should fill out his own particulars first and afterwards he was to give it back to Robert Ng who would find other persons to fill in the rest.. PW5 said he signed and dated the form at CB 79.

101.       PW5 said after he received the form he asked his girlfriend to fill in the particulars for him and she completed CB 85-87 and 89. PW5 said he was able to read it. PW5 said he told her the names of his favourite horse, jockey and trainer to put in the form.

102.       PW5 said the form was dated 6 November 2009 by his girlfriend.

103.       PW5 said that D7 signed at CB81. PW5 said he met him on the day the form was signed by D7 at D7’s residence and he had never met D7 before. PW5 said that Robert Ng told him a person called Freedman, would telephone him and that Friedman would fill in the application form for him. PW5 said that later D7 called him and told him he was Freedmann a friend of Robert’s. PW5 said that D7 said that his Christian name was Stanley . PW5 said that  D7 asked him when he would be free and PW5 said it would have to be Saturday or Sunday. PW5 said that D7 gave him his address. PW5 said he told D7 his English was not good and he would ask his elder brother to phone him later to confirm the address. PW5 said that his brother contacted D7 and they went to see him on 10 October with his brother as interpreter.

104.       PW5 said when they arrived D7 was there and he gave PW5 his name card P12, CB96. PW5 said that they gave D7 their name cards. PW5 said that he had his mobile phone with him  and he saw that D7 switched off his mobile phone and removed the batteries. PW5 said D7 indicated that he and his brother should do the same which they did. PW5 said that D7 did not say why the mobile phone batteries had to be removed.

105.       PW5 said he had P7 with him, and at that stage the form was blank. PW5 said that there was a conversation with D7 and his brother acted as interpreter. PW5 said that D7 said he needed to understand his background and D7 told them about his background and family. PW5 said that D7 filled in CB 81 during the meeting which lasted for over an hour. PW5 said that CB81was filled in the middle of the meeting after discussion of his background. PW5 said he could read simple English. PW5 said his English name was Bronson.

106.       PW5 said it was not true as stated in P7 by D7 that D7 had known him for 3 years, he said that  they only met that day. PW5 said that his friends were not friends of D7. He said that  they did not discuss whether they had mutual friends. PW5 said he had never done business with D7 or socialized with him. PW5 said he did tell D7 he enjoyed racing and would like to be an owner.

107.       PW5 said that at the end of the meeting he and PW6 left with P7. PW5 said he never saw D7 again. PW5 said he did contact Robert Ng and told him he had seen D7 who had helped him fill in the form.

108.       PW5 said he heard again from Robert Ng about one to two weeks later. PW5 said that Robert Ng contacted him and said a person called Mackie would fill in the other part of P7 at CB 82. PW5 said he was told that two voting members had to sign. PW5 said the Robert Ng gave him Mackie’s telephone number and he contacted Mackie. PW5 said that through the assistance of his brother acting as interpreter an appointment was made for him to go Mackie’s office.

109.       PW5 said that a meeting to take place a few days after the telephone call at the office of  Mackie in Central Plaza in Wanchai. PW5 said his brother PW6 knew the address. PW5 said that when they went to Mackie and his girlfriend went as well but she remained outside Mackie’s office. PW5 said that they took P7 with them.

110.       PW5 said that Mackie gave them his name card P13, CB97-8. PW5 said his name card was given to Mackie. PW5 said that Mackie introduced him to two persons present at the meeting who also gave PW5 their name cards. PW5 produced the cards, P14, CB99-100,  with the name David Bojan and also P15, CB101-2, with the name Andy M O Choi.

111.       PW5 said that after the exchange of business cards there was a brief conversation. PW5 said that Bojan asked if he was Mackie’s friend. PW5 said he spoke with Mackie who told him his background. PW5 said that Mackie said that he loved sport and showed him some news clippings where he was in a photograph with Li Ka Shing.  PW5 said he told Mackie that he had a 13 year old son and loved sports as well and he told him he was in the money exchange business as Mackie asked him about such matters.

112.        PW5 said that the meeting lasted about one hour and generally the conversation was about their backgrounds. PW5 said that after an hour he asked Mackie if he would fill out the application form for him and Mackie said he would do so at the next meeting. PW5 said that they arranged to meet again a few days later at the same place. PW5 said he could not recall if he left with P7. PW5 said he later contacted Robert Ng to tell him he had seen Mackie.

113.       PW5 said he returned to the second meeting with PW6. PW5 said there was little discussion. PW5 said that on this occasion, after he arrived, Mackie took them to a conference room  and went in by himself. PW5 said that about 10 minutes later Mackie came out of the room and said that he had filled in the application form.

114.       PW5 said he saw what Mackie had written at CB 82. PW5 said that the date recorded thereon, 22 October 2009, was around the date of the meeting.

115.       PW5 said that the statement by Mackie that he had known Mackie for one year was untrue. PW5 said that he only had two meetings with him as described to the court.

116.       PW5 said that after the meeting he contacted Robert Ng to say that Mackie had filled in the form. PW5 said that Robert Ng arranged a further meeting with PW5 about one week later as he said he needed to find three more Club members for him to sign the application form. PW5 said that at that time page CB83 was blank and at that meeting with Robert Ng he gave Robert the whole form for him to get three members to fill in the form. PW5 said he got the form back from Robert Ng a few days later, about one week roughly, and CB 83 was filled in. PW5 said he knew none of the three persons referred to at CB83.  PW5 said that the statements that they knew PW5 were untrue.

117.       PW5 said he asked one of his employees to take the form to the Club.

118.       PW5 said he later received a phone call from the Club to go for an interview. PW5 said he contacted Robert Ng and as instructed by him he told the Club he could not attend. PW5 said that Robert Ng said that he would teach him what to say if he was interviewed .

119.       PW5 said he received a second call about two weeks later from the Club in relation to the interview on 26 January 2010. PW5 said he contacted Robert Ng to see how he should answer questions.

120.       PW5 said they met at the Fung Shing restaurant early one morning, on the day of the interview. PW5 said that during that meeting Ng taught him the occupations of the three supporting members who are full members and their backgrounds and also the two voting members and told him not to forget.

121.       PW5 said the meeting with Robert Ng lasted one hour odd and Ng  taught PW5 what to say and how to tackle the questions. PW5 said he later attended the interview with PW2 who asked him about himself  and the five persons who signed his application form. PW5 said he knew what to say as he had been taught by Robert Ng . PW5 said he mentioned Wong Wai and Wong Hau Cheong as he was asked how he got to know the voting members and that it what he told the interviewer and that was not true.  PW5 said that these persons do exist but this had nothing to do with them.

122.       PW5 said that he only met D7 once and Mackie twice and he never met the supporting members.

CX by D7

123.        PW5 said he did get a phone call from someone calling himself Mr Freedman who said he was a friend of  Robert Ng. PW5 was shown his witness statement in which he stated that he got the call from D7  who said his name was Stanley and sought confirmation that PW5 was Robert’s friend. PW5 said that is what happened.

124.       PW5 said he took along his brother as he was educated in Canada and PW5 could only understand simple English so he required him to be an interpreter.  PW5 agreed that apart from the time spent with D7 and Mackie the vast majority of dealings in connection with the application were with Robert Ng.

125.       PW5 agreed that at the stage he met D7 he had no idea what the procedure was for racing membership.

126.       PW5 said he had no idea why D7 was asking him the questions he asked and why D7 explained his own background.

127.       PW5 was referred to P7 CB 81 and asked about the contents. PW5 agree that  it was true as stated that he was a fine person who would be a good member of the Club. PW5 said he did not consider himself well-known as stated in P7. PW5 agreed that he did enjoy racing and did want to become an owner.

PW6 LamYeung Ping, Danny, brother of PW5.

128.       PW6 told the court that he was educated to college level in Canada and his spoken English is sufficient. PW6 said he has better English than his brother

129.       PW6 recalled his brother calling him in October 2009 about Club membership and saying that he knew a foreigner friend who could help him with his Club membership. PW6 said that his brother asked PW6 to accompany PW5 as an interpreter.

130.       PW6 said on 10 October they went to the residence of D7 whom he said was called Stanley. PW6 said they stayed there for about an hour. PW6 said they spoke about the Club. PW6 said that D7 said he was a member of the Club. PW6 said that there were many photographs at D7’s home and D7 said he loved horses and had had many victories. PW6 said his brother just listened to what D7 said  and his brother said he liked horses a lot as well. PW6 said he translated what was said. PW6 said his translation was accurate as D7 used simple English. PW6 said he could not recall his brother having an application form or D7 doing any writing. PW6 said he never saw D7 again.

131.       PW6 said a week or two later his brother again asked him for assistance in interpretation and they visited another foreigner together with his younger brother’s girlfriend. PW6 said that they went to Central Plaza in Wanchai where they met a man called Mackie. PW6 said  PW5’s girlfriend remained outside. PW6 said the meeting lasted just over an hour. PW6 said Mackie introduced himself as a Club member and gave a little bit of his history and he translated that to his brother. PW6 said Mackie introduced them to some colleagues. PW6 said PW5 told Mackie that he loved horses.

132.       PW6 said there was a second meeting with Mackie at which PW5 and Mackie spoke about the Club. PW6 said he did not recall his brother having an application for the Club. PW6 said the meeting lasted about half an hour and PW6 translated what was said by each accurately. PW6 said he never saw Mackie again.

133.       PW6 said that the photographs in D7’s apartment were racing photographs. PW6 said that D7 used simple English.

PW12 Dr Ho Wai Tak

134.       PW12 said he is a voting member of the Club.

135.       PW12 said he was aware he was giving evidence under immunity and he understood the terms of the immunity, Ex P27.

136.       PW12 said he is a medical doctor with a clinic in Nathan Road. PW12 said that on 27 July 20011 he was charged as D9 with a conspiracy to defraud the Club. PW12 said that the prosecution later agreed not to proceed with the charge.

137.       PW12 said he joined the Club in 1974 and became a voting member in 1992.

138.       PW12 said he received the letter date 29 June 1999 from Alan Li, Ex P3, CB60. PW12 said he was aware the letter referred to a problem about sponsorship of applications. PW12 said he was aware that it was necessary to acquire a good knowledge of candidates. PW12 said when seconding a candidate it is not enough to rely on proposer’s recommendation and there was a need to satisfy himself that the candidate was suitable.

139.       PW12 was shown Ex 4 CB 63 a letter to voting members dated 27 June 2002 with Annexe B relating to knowing candidates and  their being suitable.

140.       PW12 said that in 2009 he knew D10. PW12 said that he had known him since 1974/5. PW12 said he was introduced to him by his relative in 1974 and D10 attended his clinic regularly since 1976 and they had become friends. PW12 said he was introduced by his father.  PW12 said that he knew D10 was a full member of the Club.

141.       PW12 was shown P6 and agreed he had signed this form at CB72 and wrote the manuscript words therein. PW12 said he met PW3 in early part of 2009 after he had received a phone call from D10 who asked if he could help in supporting his friend to become a Club member. PW12 said he would do the seconder if PW3 could find a proposer.

142.       PW12 said D10 told him that he had met  PW3 a year ago over a lunch. PW12 said that a few days later D10 left a name card at his office and it was that of PW3. PW12 said that he noticed that PW3 was a director of Cyber International which is how he knew the name and this was the person D10 had asked him to second.

143.       PW12 said later PW3 came to his clinic on 10 March 2009. PW12 said he had a conversation with him and he tried to confirm what D10 had told him over the phone that he was in a true business and PW3 was a keen racegoer who wanted to own a horse. PW12 could not recall if D10 had confirmed that.

144.       PW12 said that D7 had filled in the previous page at CB71  when he saw the form. PW12 said that page CB73 was also filled in.

145.       PW12 said D10 told him that he met PW3 over a year ago. PW12 said he did not recall a lunch meeting, PW12 said he did not recall having met PW3 but he went along with what D10 told him. PW12 said that the products PW3 dealt with were ladies shoes as told by D10. PW12 said PW3 told him he was keen on horse racing. PW5 said that he got the information that the defendant was engaged in mens and ladies shoes as told by D10. PW5 said he was relying on what he was told by D10 and he tried to confirm the information when he met PW3. PW12 said the conversation lasted 5-10 minutes.

CX  on behalf of  D7

146.       PW12 said he had been a member of the Club for 38 years and 22 years as a voting member. PW12 said he did not know D7 and never spoken with him about this application, P6.

147.       PW12 agreed that according to P6 D7 signed on 20 January 2009 and PW12 signed on 10 March 2009, 6 weeks later. PW12 said he did not know if the information was true or false.

148.       PW12 said that the Club has 22000 members with 200 voting members and 70 honorary voting members. PW12 said he always met the applicants at least once to try to make an assessment as to whether they would be suitable for membership.

149.       PW12 said that if he was  introduced  to someone by someone he knew who vouched for that person that would make him feel easier in supporting the membership. PW12 said that he trusted D10 as a friend and he treated him as a relative.

150.       PW12 said on a yearly average he would have proposed or seconded about 5 applications within 3 -4 months and he usually proposes about 10 racing members per year. PW12 said he is guarded about offering full membership even to doctors whom he knows at the hospital.

151.       PW12 said he does not always know an applicant personally but through an intermediary. PW12 said from his discussion with voting members he said that this approach is common and they also do the same.

CX D10

152.       PW12 said he would hold back on full members as this is very valuable unless he knew them very well. PW12 said he would usually introduced by the voting member at sport like on racing days and he would ask them to come to his office. He would fill in the part relating to how long he had known them for as long as he had known them, sometimes half a year, sometimes 3 years and sometimes he had known them since they were kids.

153.       PW12 said he would put exact time he knew them from introduction by a voting member and when he meets them at this office  a few months later. PW12 said 6 months is the shortest time he had put on application forms. PW12  said on average half a year.

154.       PW12 said in this case he did not personally recall meeting PW3 more than a year ago. PW12 said he did check with PW3 and he did not recall what he said. PW12 said the point is he could not recall exactly how long ago the meeting took place, he trusted what D10 had told him and he thought PW3 would be a good candidate.

155.       PW12 said the club encourages introductions and provides more forms. PW12 said that he could not recall actually meeting PW3 previously and  he trusted what D10 had said. PW12 said he did not have a problem putting them forward when he did not have a personal relationship and it was up to the Security Department to check further. PW12 said the main supporting members are the proposer and secondor. PW12 said he was encouraged to introduce as many as he could and for full membership he needed to fill in full membership form where he has to know someone personally and he would be very careful.

PW7 Saesam Lai Keet ICAC investigator. Ex 28 – s.65B Criminal Procedure Ordinance Cap 221 ( CPO)

156.       PW7 had  a video-recorded  cautioned interview with D10 on 21 June 2011 at ICAC Headquarters between 1512 and 1536 hours.  The recording, transcript and certified translation were produced as Exhibits 18, 18 A and 18 B

PW8 Chu Ka Ho Assistant ICAC Investigator

157.       PW8 said that on the 26 August 2011 he participated in the arrest of D10 at the Hong Kong International Airport. PW8 said that  D10 was taken to the ICAC headquarters. PW8 said that when the reasons for arrest on the three charges were explained to D10 he interrupted them and said he did not accept any advantage.

PW9 Tong Yuet Wah, Senior Investigator of ICAC – S. 65CPO Statement – Ex P29

158.       PW9 stated in her statement that she took part in the arrest of D7 at his home on 16 November 2011. The officers were in possession of a search warrant. PW9 stated that D7 was arrested for conspiring to take advantages, conspiracy to defraud and dealing with proceeds of crime. PW9 produced Ex P10 which was seized at the home of D7 on execution of the search warrant.

Record of Interview with D10 – Ex P19 B

159.       D10 said that he runs a company called Chun Yick Trading Company with an office at Room 03, 10/F, 500 Nathan Road Yau Ma Tei. He said he had been a racing member of the Club since the 1980’s and later became a full member.

160.       At counter 72 he said that the purpose of the three members signing the racing membership application form was to prove that they knew the applicant. “That means they are friends so as to, to, to do it, probably.” At 74 he stated that supporting him means that it is considered that he  is one of the friends.

161.       D10 said he did not know D7. He said he knew PW12 who had been a friend of his for many years. D10 admitted signing P6 as a supporting member and writing that he had know PW3 personally for 2 years, that “PW3 is a successful businessman in Re Joint Motors Company Limited. He also loves horse racing and really wants to be a horse owner”. When asked if he knew PW3, D10 said that at that time he did not quite remember him. At 170 he said that they had “just met once, to be frank.” and at 172 he said he was not well acquainted with him.

162.       At counter 191 he was asked how he came to know PW3 and he said that he thought it was PW12 who asked him to offer help by signing it but he wasn’t sure.

163.       At 203 he was asked about how long he had known PW3 and he said he thought he would have known him for a time and that he would not simply have signed for him and he probably met him twice or thrice.

164.       D10 denied receiving any advantage.

165.       D10 said at counter 312 with regard to the period of knowing the applicant that everyone used to put down one or two years. At 314 he said that for this kind of person  at the race course they sometimes saw each other during the horse racing at the club but not necessarily had a deep impression. At 322 he said that he could not recall how he came to know PW3. At 324 he said that he was certain that a friend asked him and he offered help.  D10 said at 332 that it was probably him who took PW3 to see PW12. At 360 D10 said he could not immediately answer as to which friend asked him to help PW3.

Submissions

166.       At the close of the prosecution case counsel for D10 submitted that there was no case to answer in relation to charges 3 and 4 against D10. I found that there was a case to answer on all charges.