HKSAR v. CHENG SUI WA

CACC 223/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 223 OF 2001

(ON APPEAL FROM HCCC NO. 186 OF 2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

Introduction

1 This applicant seeks the leave of this Court to appeal against conviction and sentence. He was tried before Madam Justice Beeson and a jury in the High Court and on 8 June 2001, he was convicted of eleven counts of conspiracy to defraud, and three counts of knowingly dealing in the proceedings of an indictment offence. He was sentenced on the following day to a total term of nine years' imprisonment.

The prosecution case

2 The essence of the case against the applicant was that banks had been induced to issue letters of credit when the underlying transactions, which had been presented as the basis for their issue, were bogus; that the banks had, on the presentation of bogus documents, paid sums allegedly due under the letters of credit; and that the sums thus paid out were then transmitted, almost forthwith, by the beneficiaries of the letters of credit to those who had applied for their issue. In the case of Counts 1, 6, 8, 9 and 10, Createx International Ltd ("Createx"), of which the applicant was a director and shareholder, was the beneficiary, with Guangnan Holdings Ltd ("Guangnan"), a Mainland company, the applicant for the letter of credit on behalf of its subsidiary Asian Honour International Ltd ("Asian Honour"). In the case of Counts 11-16, Createx was the applicant, and a company called Fountain Datacom ("FDC") the beneficiary. The prosecution case was that letters of credit subsequent to the first in each group were created and utilized to provide funds for meeting the liabilities occasioned by the issue of the preceding documentary credit.

3 The key personalities and companies are these:

(1) Asian Honour Ltd was a wholly-owned subsidiary of Guangnan Holdings Ltd, the Mainland consortium.

(2) At the times with which we are concerned, Madam Tang Wai Na was general manager, or deputy general manager, of Asian Honour. The applicant was acquainted with Madam Tang.

(3) The applicant was a director, and shareholder and deputy general manager of Createx, a Hong Kong Company, which in turn was a subsidiary of another Mainland based consortium, named Southern Industrial and Trading General Corporation ("Southern Industrial").

(4) Employed in a clerical position at Createx was a Ms Chiu Hoi-yin, who was the second defendant at trial. She was acquitted in respect of all counts levelled against her.

(5) Mr Yip Hiu-sui (who committed suicide whilst in custody) was Madam Tang's husband, and the proprietor of FDC, which was a local trading firm.

4 The prosecution case was that in or about 1997 Madam Tang asked the applicant to help her to create non-existent business transactions, whereby Createx was to pretend to sell goods to Asian Honour, that the applicant agreed to help, and thereafter created bogus transaction documents showing that quantities of cold rolled sheets were to be sold to Asian Honour. On each occasion Tang applied for a letter of credit using facilities which the parent company, Guangnan Holdings, enjoyed with its banks. What then happened was that the applicant caused the funds paid under the letters of credit, upon presentation of the requisite documents, to such bank accounts as Madam Tang directed: those of Mr Yip, the accounts of FDC, Asian Honour and Guangnan. Createx benefited to the extent of a 0.1% commission, as did Yip.

5 So, for example, between October 1997 and February 1998 the applicant, or those acting on his instructions, prepared a sales contract, commercial invoices and other supporting documents which represented that 9,000 metric tons of cold rolled sheets were to be sold by Createx to Asian Honour for a sum of HK$24,412,500. An application was then made by Guangnan (on Tang's instigation) with the use of these documents, and a letter of credit was issued in that sum. The proceeds were paid to Createx, 0.1% deducted by the applicant, and the balance then channelled to a bank account on Tang's direction, through the accounts of persons such as Ms Chiu, Mr Yip, and a person called Chen, a manager of Createx, the funds ultimately finding their way to Asian Honour.

The indictment

6 The allegation in that example was represented by Count 1 which is framed in a manner typical also of those other counts in the indictment which alleged conspiracy to defraud:

Count 1

"Statement of Offence

Conspiracy to defraud, contrary to Common Law and section 159C(6) of the Crimes Ordinance, Cap. 200.

Particulars of Offence

CHENG Sui-wa and CHIU Hoi-yin, between the 1st day of January 1996 and the 28th day of February 1998, in Hong Kong, conspired together and with TANG Wai-na, YIP Hiu-sui, FAN Yuk-shu, MA Chi-hang, TSANG Kei-yue and other persons unknown to defraud The Bank of East Asia, Limited ("the Bank") by dishonestly:

(a) causing Guangnan (Holdings) Limited ("the Company") to apply and to utilize credit facilities from the Bank in the form of a Letter of Credit numbered 2101N29037;

(b) submitting or causing to be submitted false documents to the Bank purportedly evidencing genuine underlying commercial transactions between the Company and/or its subsidiaries and Createx International Limited;

(c) causing the Bank to grant the Company utilization of facilities under the said Letter of Credit and thereby procuring or causing to procure the issue by the Bank of the said Letter of Credit in favour of Createx International Limited; and

(d) causing the Bank to release a sum of $24,412,500.00 Hong Kong currency to Createx International Limited under the said Letter of Credit."

7 Counts 6, 8, 9 and 10 were counts alleging conspiracy to defraud along the same lines, that is, causing Guangnan to make applications showing transactions with Createx which were bogus:

* In the case of Count 6, conspiring to defraud the Sakura Bank of HK$14,918,750;

* In the case of Count 8, conspiring to defraud Rabobank Nederland (Hong Kong Branch) in the sum of US$1,997,850;

* In the case of Count 9, a conspiracy to defraud ABN-AMRO Bank of the sum of US$806,150; and

* In the case of Count 10, conspiring to defraud the Bank of Tokyo-Mitsubishi of the sum of US$3,000,280.

8 Counts 2, 4 and 7 against the applicant each alleged the offence of dealing with property known or reasonably believed to be proceeds of an indictable offence contrary to section 25(1) of the Organized and Serious Crimes Ordinance, Cap. 455:

* Count 2 alleged that on 18 December 1997 the applicant dealt with $4m being the proceeds of an offence;

* Count 4: that on 19 December 1997 he dealt with $5m; and

* Count 7: that on 24 December 1997 he dealt with $7m.

These sums were figures that the applicant is said to have caused to have been returned to various accounts directed by Madam Tang. Counts 3 and 5 contained similar allegations against D2.

9 The second group of counts, Counts 11 to 16, constituted allegations which, if true, showed the applicant running a similar scheme as had Madam Tang, but this time for the benefit of Createx, in order to show profits for that company. It will be recalled that Mr Yip, who was Madam Tang's husband, ran a business called Fountain Datacom ("FDC"). The prosecution case in relation to the second group of offences was that the applicant asked Yip to assist him in the creation of non-existent business transactions by which FDC was to be shown to be selling goods, telecommunications equipment, to Createx. Createx would apply for letters of credit under which FDC would be the beneficiary, but the proceeds would be re-routed back to Createx, although Mr Yip would keep a 0.1% commission. The assertion was that the applicant, with his staff, then manufactured false cargo receipts, packing lists, commercial invoices and other documents, to support the applications and payments upon them. There were two issuing banks in this second tranche of activity, the Sin Hua Bank and the Nanyang Commercial Bank, as a result of which sums totalling HK$22,043,125 and US$7,098,650 were credited to the accounts of FDC. In two instances the sums were re-routed back to Createx through the bank account of a company called Fu Tai Trading Company of which Yip, the applicant, and the applicant's wife, were the authorized signatories.

10 The second group of charges thus alleged conspiracy to defraud, with the conspirators causing Createx to apply for and utilize letter of credit facilities on the basis of false documents purportedly evidencing genuine transactions between Createx and Fountain Datacom and causing the banks to release monies under the letters of credit thus fraudulently to be procured:

* Count 11, a conspiracy between 1 Jan 1998 and 30 April 1998; HK$8,013,125 from the Sin Hua Bank;

* Count 12, 1 May 1998 to 31 August 1998; HK$6,100,000 from the Sin Hua Bank;

* Count 13, 1 May 1998 to 31 August 1998; US$394,550 from the Nangyang Commercial Bank;

* Count 14, 1 June 1998 to 30 September 1998, HK$2,440,000 from the Nanyang Commercial Bank;

* Count 15, 1 July 1998 to 31 October 1998; HK$5,490,000 from the Nanyang Commercial Bank;

* Count 16, 1 December 1998 to 31 May 1999, US$314,100 from the Nanyang Commercial Bank.

The prosecution witnesses

11 The applicant was arrested on 15 January 2000, and shortly thereafter made a series of statements which were heavily inculpatory and upon which the prosecution relied. To these we shall return. There was also oral testimony of witnesses on behalf of the prosecution which, if admissible and true, implicated the applicant. We take the essence of their testimony from the summaries thereof provided by the judge in her summing up.

12 Mr Fan was a clerk with Asian Honour. He was named on the indictment as a co-conspirator and gave evidence under an immunity. In 1996 Madam Tang became general manager of Asian Honour, and he noticed that she started to apply for more letters of credit in order to increase business flow. She asked him to apply for letters of credit to obtain cash, and provided him with information to this end: cargo details, and the amount she required from the letter of credit, and so on. In the documents thus supplied, there was stated no buyer, and he thought that he was being asked to prepare false documents. He said that when the letter of credit application was prepared, the cargo receipt would be prepared at the same time rather than, as is normal in the case of an honest transaction or application, when the goods had actually arrived. This procedure was followed for all the letters of credit in question. Madam Tang told him that this all needed to be done to inflate the profit of Asian Honour and to obtain cash.

13 Mr Ma, an accounting graduate, worked under Madam Tang at Asian Honour. In December 1997, he attended a meeting at which the Deputy Director of the Finance Department of Guangnan complained that profits were insufficient and that they had to be increased by himself and Madam Tang and that this was to be done with the use of letters of credit. Mr Ma became uneasy and in March 1998 tendered his resignation, but Madam Tang tried to mollify him by saying that such things happened in other companies. In due course, however, he resigned.

14 Then there was the evidence of a Mr Tsang. He worked as a bookkeeper for Createx under the applicant's direction. His testimony was that books were kept at Createx in an unorthodox fashion and that he wrote vouchers, not from original invoices, but from notes made in notebooks compiled by the applicant. Those notes referred to letter of credit numbers but he, Tsang, never saw any of the documents normally associated with such transactions. He inquired about the underlying documents but was told by the applicant just to write the vouchers, using the handwritten notes from the applicant's notebooks. He thought this unusual as, he said, did the auditors. Tsang's evidence was that he did not believe the transactions to be genuine and that they were no more than a method by which to generate cash flow for the company, and that the applicant had made this clear to him in the course of his work.

The interviews

15 The prosecution relied heavily in this case upon admissions made by the applicant to the ICAC, in the course of interviews.

16 The first video interview took place on the evening of 15 January 2000. It was an interview that lasted some three hours. It is interesting to note that the ICAC told the applicant that he was under investigation for corruption, the assertion being that he, the applicant, had received bribes from Madam Tang for assisting in the creation of bogus transactions for letter of credit purposes, the suggested bribe, it would seem, being the commission that was paid, of 0.1%. It appears that it was towards that allegation that the applicant concentrated his answers, and he was concerned to show that the commission was obtained by Createx and not by him personally. In this context, the applicant explained that he had indeed been approached by Madam Tang. She had said that the company needed cash to assist it in developing its business, and that she in turn needed a reliable friend to enable her to open a letter of credit, and that she would create a cargo receipt, and that when the funds were paid under the letter of credit he was to ensure repayment through various accounts. In the course of the interview the applicant was anxious to state why he agreed to this: first, to provide assistance - it was not right to turn down such a request; second, that the transaction would enhance the banking performance of Createx so as to make the obtaining of credit easier; and, third, to earn commission for the company and not, as had been alleged, for himself personally. In the event, he said, Createx prepared a set of documents based on the letters of credit; and it was agreed that commission of 0.1% would be paid for its assistance. Indeed, he thought that this type of business had been and remained quite popular.

17 There is in this interview a reference to Kazakhstan, the relevance of which will become apparent when we turn later to the defence run by the applicant at trial. Here the applicant speaks during the interview of Createx's parent company on the Mainland, Southern Industrial, and how in the past Createx obtained funds for Southern Industrial by the use of letters of credit and of the returning of funds obtained on Southern Industrial's applications; this when Southern Industrial needed funds for border trading between it and a steel production company in Kazakhstan. That had been in 1995 and 1996. At first the deals were real, then later some were not; and in the latter cases it was merely a method to obtain cash for Southern Industrial with the use of what the applicant referred to as 'empty documents'. It was a method, he said, of financing and, since the parent company told him to do it, he regarded it as proper. Many friends of his operated in the same way. He did not think this was defrauding the banks. He accepted that in order to effect repayment to Asian Honour, part of the sums might pass through the accounts of his staff and part through FDC's account. He himself had given instructions to his staff to prepare documents based on the letters of credit, such as invoices and packing lists. Then he was asked this question:

"What about the goods involved? What about the cold rolled sheets?

Answer: The goods were non-existent ... Non-existent; 'empty' goods only." (see items 1437 to 1442, first interview).

18 Similarly, he acknowledged that contracts which he signed for presentation in support of the applications for letters of credit were not real. Time and again when taken through each letter of credit to which the first group of counts related, he made clear that the transactions were not real; that the documents were 'empty', as he called them. He remained concerned to emphasize that the 0.1% was intended for Createx and not for him personally, and was paid for the agreement to help Madam Tang falsely represent that Createx was a buyer and for preparing false documents for her. Then, interestingly, he said this, seeking to suggest that he was not himself engaged in any cheating: that it was Guangnan that cheated the bank, not Createx, for Guangnan 'lied to the bank that there's a transaction which required the bank to open a letter of credit' (item 3472) and that all he had done was to prepare false documents at its request for non-existent transactions. And he added that the bank had been repaid its money. Yes, he knew that the transactions were bogus; he had committed a mistake by attaching too much importance to friendship. Nonetheless, he did not know that what he did should not have been done. "We all knew", he said that, "this business simply involved obtaining of cash by means of letter of credit". (item 3564).

19 A second interview took place the following morning (16 January). It is unnecessary for the purpose of this appeal to summarise its content save to point out that towards its end it was interrupted so that the applicant could speak to a lawyer who had arrived to represent him.

20 In a third interview of the same day, he confirmed that he had talked to his lawyer. He said that he had used a stamp of Createx's parent company in support of fake transactions and had not informed his parent company, Southern Industrial, what he was doing. It was only if a transaction was real that he had to report the matter to Southern Industrial. It is not entirely clear what the applicant was here saying, but its thrust seems to have been that Madam Tang had wanted to create documentation to show that Asian Honour was selling the cold steel on to Southern Industrial and, to this end, false documentation with the use of this stamp was used. In this interview, towards its end, he said again that he felt that what he did was not unlawful, and that a bank did not care whether a transaction was real or not.

21 The fourth and final interview took place on the morning of 17 January. On this occasion, the investigators put to him their suspicion that he had conspired with Yip of FDC to show false transactions by which FDC was the seller of telecommunications equipment so that on the back of letters of credit issued in FDC's favour, funds would be raised and transmitted to Createx; the reverse, in other words, of the earlier letter of credit scam. But before the interview could proceed with its questioning the applicant pressed for an opportunity to tell interviewers about allegations which had been made in earlier interviews that there had been conspiracies to defraud in relation to transactions supposedly entered into by Southern Industrial. The applicant was anxious to impress on the officers that behind such transactions there had been real goods. He provided an account about the importation into the Mainland by Southern Industrial of steel products from Kazakhstan and how payment was made through letters of credit issued by a Mainland bank on the application of Createx in Hong Kong, and that a European bank would advance monies to Createx on the strength of the letter of credit, and the amount thus received would be remitted to the sellers in Kazakhstan in payment of the goods to be exported.

22 As for FDC, the applicant said that in the past he had used FDC to handle transportation of goods to and from the Mainland. He admitted, in essence, that, given an absence of circulating funds in hand, he had created false transactions in order that Createx would generate cash flow. He thought, he said, that there was risk attached to the scheme, but his general manager pressed him to go ahead, and he did, securing the services of friends such as FDC to assist. Createx in due course received the funds and with those funds made some investments on the Mainland, and the money was paid back to the bank. He, the applicant, ensured the making of the applications for letters of credit, and Yip of FDC prepared documents. Yip knew that "what we had was a bogus order" (item 210, fourth interview). There were no underlying transactions. Cargo receipts were prepared within the offices of Createx at the applicant's instructions. The goods were never received. For none of the six business deals about which questions were asked and documents examined had any actual business been done. He accepted that in relation to these transactions or supposed transactions, a sum of US$2,340,001 remained unpaid to the banks. There were no account books and no purchase and sales ledgers.

23 So the prosecution relied on the evidence of accomplices; on the absence of any sale and purchase ledgers in Createx; on the flow of monies straight back to the alleged purchasers of the goods on each occasion, and the fact that sums were often thus remitted through several accounts; and, of course, on the admissions which the applicant had made that, to his knowledge, none of the transactions to which the letter of credit applications related was genuine.

The defence

24 The applicant gave evidence. His defence painted a complicated story. In its essence, it was that he had not told the truth to the ICAC investigators because he had been constrained from doing so. He said that there were in truth underlying transactions, but to have revealed that fact to the ICAC would have been to betray the fact that, contrary to Central Government directives issued in 1997, the military on the Mainland were, during the period of the alleged conspiracy, continuing to carry out commercial ventures.

25 The applicant, a man aged 47 years at the time of his trial and a person of previous good character, had been a colonel in the People's Liberation Army, and when he left the army he was appointed a director and shareholder of a window company in Hong Kong, Createx, which operated on behalf of Southern Industrial which was part of an extensive investment machine for the military. Createx was established because of difficult foreign currency constraints within the Mainland, and Createx operated as a middleman for international transactions.

26 There were in fact, said the applicant, real underlying transactions in relation to the first set of alleged offences. The supplier of the rolled steel was in Kazakhstan. The account, very broadly, was that from 1997 Southern Industrial could no longer obtain import permits, so had to use the offices of Asian Honour to do so. Asian Honour would purchase the goods in Kazakhstan, and once Asian Honour had cleared the goods through customs, and once the goods reached Xinjiang, the cargo would be given to Southern Industrial. However, Southern Industrial required some form of insurance or guarantee in respect of the goods which found their way into the hands of Asian Honour. That was effected by Asian Honour asking its parent company, Guangnan, to open a letter of credit, to the equivalent value of the goods purchased, in favour of Createx. Asian Honour would only be permitted to have possession of the goods in Xinjiang province once Createx was in possession of the cargo receipt; and then the letter of credit would be presented in Hong Kong for payment, and once Southern Industrial had received its goods, the guarantee money would be sent by Createx back to Asian Honour. A further contract had then to be signed for Asian Honour to show to the banks, purporting to evidence the on-sale of the goods from Asian Honour to Southern Industrial. Goods in fact were delivered to Southern Industrial on the Mainland and payment made there in Renminbi.

27 As for the evidence of Mr Tsang the bookkeeper, it was, asserted the applicant, untrue.

28 The defence in relation to the second set of charges, the FDC letters of credit, was different, and was that a Shenzhen subsidiary of Southern Industrial wanted to import Nokia telephone equipment. Mr Yip's company had imported Nokia equipment from Finland for some time and he seemed a perfect person to effect deals for Southern Industrial, through Createx. What was more, because Yip said that he was able to obtain on the Mainland an import licence at a concessionary rate, it was agreed that he would be responsible for the importation and clearance of the goods within the Mainland. FDC was to be paid in Renminbi once the goods were cleared. But he, Mr Yip, wanted some guarantee lest the Shenzhen company did not pay him. Similarly, the Shenzhen company did not want to pay him in advance lest something went amiss with delivery of the goods. So the solution at which everyone arrived was that Createx would open a letter of credit in favour of FDC, and once the letter of credit was in FDC's hands, FDC would send the goods, and payment would be made in Hong Kong on the letter of credit when the goods were delivered, and when the Shenzhen company paid FDC in Renminbi on the Mainland, the sums recovered in Hong Kong would then be returned to Createx.

29 The applicant said that he took the stance which he had with the ICAC because, on the one hand, he wanted to cooperate with them, not least because he thought that Guangnan had been engaged in some corrupt conduct, but, on the other hand, he did not want to reveal the fact that Southern Industrial was still engaged in commercial activity. No one was going to lose financially, so he was not being dishonest. In reality, the transactions existed, albeit not as represented. Whilst he had felt constrained when interviewed by the ICAC, that no longer applied, because:

"Ever since I got into trouble the general corporation became aware of this so they started to study the history of the matter and they said since it has come to this stage you should reveal the truth. And so with the general approval of the corporation I tell the truth."

30 Well, as we know, the jury did not believe him; and he was, by their unanimous decision, convicted upon each count.

CONVICTION

Ground 1: The co-conspirator's direction

31 It is argued that the judge failed to deliver an adequate direction to the jury in relation to acts done and things said by others in suggested furtherance of the conspiracy. The evidence about which Mr Wilson QC, who appears on appeal for the applicant, is concerned, is that of Mr Fan, the Asian Honour clerk; Mr Ma the Asian Honour accountant; and Mr Tsang, the Createx bookkeeper.

32 The judge referred to the evidence of Fan and Ma. What she said was this:

"In this case the prosecution seeks to rely on some things that were said and done by Miss Tang as part of the case against the 1st accused. Now, sometimes the accused was not present when things were done or said that might be regarded as beingto further the aims of the conspiarcy. For example, some of the matters discussed by Miss Tang with her staff when the accused was not there, further the conspiracy, but Mr Cheng was not present. So what Tang discussed with Mr Ma, or Mr Fan, to achieve the object of the conspiracy, or to further the conspiracy, can affect the 1st accused in certain circumstances.

...

So you have to treat this type of evidence with caution when you come to consider its effect aginst the 1st accused. Before you hold that evidence or any part of it against the accused, you have to consider carefully all the evidence on which the prosecution relies as well as the evidence given by the 1st accused.

Once you have done that, you should ask three questions about each item of evidence. Are you sure the evidence is true? In other words, what Fan and Ma told you about what was said to them by Tang; or they were told by Tang, was that true? Are you sure that it amounts to evidence of things done or said by Tang for the purpose of carrying out the conspiracy? In other words, the agreement that is alleged between her and the 1st accused and others. Are you sure that in saying what they did they were not falsely involving the 1st accused in a conspiracy to which he was not a party?

If you can answer all those three questions with a yes, then you can take that evidence into account when you consider the case of the 1st accused. And it is up to you to decide how much weight you should give that. If you cannot say yes to one or more of those questions, you should ignore that evidence as it relates to the 1st accused." (Tr pp 13-14)

33 The complaint is that the judge should have directed the jury, but did not, that they could only have regard, as against the applicant, to evidence of things said or done outside the applicant's presence once satisfied that there was other evidence proving his part in the conspiracy. Mr Wilson suggested, in answer to a question from the Court, that the form of direction might have run, broadly, along these lines:

"Things said in the absence of a defendant are not normally hearsay. They may however be admissible in a charge of conspiracy, but you should not consider them unless satisfied that there was a conspiracy to which the defendant was a party."

34 A formula along those lines strikes us, with respect, as importing an artificial exercise, for once a jury is satisfied by other evidence that a conspiracy is proved against a defendant, there is hardly a need to look to the evidence of things said and done in the applicant's absence. See: Ahern v The Queen [1988] Vol. 165 CLR 87, 95. Yet that objection to such a formula, does not deal with the point in issue, for it goes really to the question of the standard of proof of the evidence from the independent source, and not to the question, which we must address, whether it is for the trial judge or for the jury to decide whether proof of the requisite standard exists.

35 Mr Reading's written submissions to this Court answered the applicant's complaint by arguing that the evidence of the co-conspirators did not form a substantial part of the case against the applicant, and that there was indeed evidence independent of theirs in the form of the applicant's confession to the ICAC and - he might have added - in the inferences to be drawn from the documentary evidence; in particular, the very fact that funds were returned to the applicants for the letters of credit as soon as they had been received by the beneficiary. This argument entirely missed the point which the applicant raised, which is whether a jury is to decide the same point as the judge decides when he is required to determine the issue of admissibility, albeit that the judge decides it on a conditional and prima facie basis.

36 We shall assume for the purpose of this appeal, since it has not been suggested otherwise, that the evidence of the witnesses Fan and Ma was evidence which was adduced to show not only the fact of a conspiracy, but the applicant's participation in it; although in relation to the evidence of Mr Tsang, we fail to see how that evidence falls for consideration under this rubric, since his evidence was direct evidence of the applicant's participation, of the applicant's statement to him that false documents were created to generate cash flow for the company.

37 The point at issue was directly addressed by the High Court of Australia in Ahern v The Queen [1988] 165 C.L.R. 87 at 100:

"The question remains whether the trial judge or the jury should ultimately determine the existence or otherwise of reasonable independent evidence of the participation of an alleged conspirator as a ground for the use against him of evidence of the acts and declarations of other conspirators which took place in his absence. Obviously the matter must be one for the determination of the trial judge in the first instance, for the evidence of acts and declarations ought not to be admitted at all for that purpose if no basis can be shown for its admission. But controversy exists over whether, even after the evidence has been admitted, the jury should be instructed that it is for them to determine whether there is reasonable independent evidence of participation and that if there is not, they ought not to use the evidence of the acts and declarations of the other conspirators for the purpose of deciding that issue."

38 The Court reviewed the approach in the United States, Canada, New Zealand, and elsewhere, commenting, as to England, that little attention seems to have been given there to the problem and that there the position was unclear. The Court concluded, however, at page 103, that:

"The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initally one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity."

39 That conclusion was buttressed by reference to the type of difficulties into which judges and, more particularly, juries would be led by directions to a jury to adopt a staged approach, as must a judge, and a staged approach, to boot, importing different standards of proof. That difficulty is well illustrated, we welcome to suggest, by the very direction which the trial judge in Ahern had in fact delivered; and we see it at page 88:

"In considering the question of whether the accused was a knowing participant, there are two stages. You look, in the first or threshold stage, in the context of the case, only at the evidence that relates to his own acts and declarations; any acts or declarations of others which he adopted or what others did at his direction, and you look at those to see whether you are satisfied to a significant degree of his participation in the agreement ... All other acts or declarations of the co-conspirators done in furtherance of the conspiracy are to be excluded from your consideration at the threshold stage ... At the first stage, the acts of the co-conspirators done in furtherance of the common purpose may not be relied upon in satisfying yourselves of the accused's participation ... Once you are satisfied on the evidence directly relating to the accused that the connexion between him and the conspiracy is established, satisfied that is to say that the body of evidence directly admissible on the issue amounts to prima facie proof of his connexion, then you are at liberty to take into account in addition all the proven acts and declarations of persons you find to be co-conspirators in deciding exactly what the plan was in which the accused was involved and in deciding the ultimate issue of his guilty participation beyond a reasonable doubt. Since guilt can only be based on satisfaction of all the elements of the charge beyond reasonable doubt, the ultimate satisfaction that the accused was a party to an agreement to do something unlawful must be satisfaction beyond reasonable doubt."

40 In so far as Ahern noted that the issue had received little attention in England, that comment must now be viewed in the light of the decision in R v Jones and others [1997] 2 Cr App R 119 in which the Court of Appeal in England had occasion to study Ahern, albeit that it does not seem to have been suggested by counsel for the applicant in Jones that the judge ought to have left for the jury's determination the same preliminary issue as to independent evidence of conspiracy as is decided at the admissibility stage. Nonetheless, the suggestion made now by Mr Wilson, which he says does no more than echo a well-established approach, does not seem to have been made by counsel, or by the court, in Jones.

41 The matter is summarized thus in Cross & Tapper on Evidence, 9th edition, page 561-562:

"Since there is little difference here between the preliminary question and the final issue, namely whether the accused was party to the conspiracy, it would be futile to require the preliminary issue to be decided upon proof beyond reasonable doubt. The better view is that the judge should decide the preliminary issue on a prima facie basis. It is submitted that since the evidence has been admitted upon such a basis it is unnecessarily confusing for the jury to be given an opportunity to reject it upon the application of a different standard of proof from that which they will have to be instructed to apply to the ultimate question of guilt or innocence of participation in the conspiracy, although at that stage it will be appropriate to warn the jury of the dangers posed by any admissible hearsay."

See also Blackstone Criminal Practice 2003 F16.50.

42 The approach adopted in Ahern, with which we respectfully agree, is also the law in Hong Kong. See R v Au Shui Yuen Alick [1993] 2 HKC 219; and Bruce and McCoy "Criminal Evidence in Hong Kong" V-1151.

43 One might add this, that even if it were for a judge to leave a jury to determine the preliminary question which Mr Wilson says is within the jury's province to decide, that jury would perforce, for the reason advanced at [34] above, have only to be satisfied that there was prima facie, rather than conclusive, independent evidence of the conspiracy and of the applicant's participation in it. In this case, it is as plain as can be that the jury could have come to no other determination but that such prima facie evidence existed. Not only was there evidence of the applicant's admissions, very detailed and repeated admissions, but also documentary evidence which suggested a conspiracy to which those running Createx in Hong Kong must have been a party.

44 For these reasons, this ground fails.

Ground 2: The Ghosh direction

45 This was a case in which, not surprisingly, the judge delivered what has become known as the Ghosh direction; in other words a direction which required the jury to ask, first, whether the defendant's conduct, such as they found it to be, was dishonest by the standards of reasonable and honest people, and, if so, whether the defendant himself must have realized that what he was doing would be regarded by such people as dishonest.

46 The complaint is that the judge, having chosen to direct the jury more than once as to the applicable law, erred on the majority of such occasions, so that such accurate and full Ghosh directions as she did give were obscured by the defective directions. In particular, it is said that the effect of at least one of the directions, if not more than one, was to tell the jury that, since it was a fact that the applicant must have appreciated that reasonable people would so regard his conduct, the only matter of which they had in the event to be satisfied was that the accused's acts were dishonest by the standards of reasonable persons.

47 That a Ghosh direction was required is beyond doubt. The applicant's defence was that whatever may transpire to be the position in respect of the strict approach of banks to underlying transactions, he did not believe that he was doing anything wrong. In the first instance, what he did was for the good of the company and was common practice, he said in his interviews; and in his oral testimony he said that there were true transactions ultimately underlying the letters of credit and that therefore he was not acting dishonestly.

48 The first misdirection, says Mr Wilson, was when the judge said in relation to count 8 the following:

"You have to be satisfied that the accused were acting dishonestly by the ordinary standards of reasonable and honest people." (Tr p 16)

Then this when summarising count 10:

"You have to be satisfied that they were acting dishonestly by the ordinary standards of reasonable and honest people. Now, each accused must have realised that his or her act was dishonest by those standards." (Tr p 17)

This, it is argued, is where the judge was actually telling the jury that the accused must, as a fact, have realized that his conduct would be viewed by others as dishonest.

49 Then there was another suggested error when the judge was telling the jury what count 14 alleged:

"You have to be satisfied about the intention in the mind of the accused to carry out the unlawful purpose; that he was acting dishonestly by the ordinary standards of reasonable and honest people." (Tr p 19A-C)

50 And a little further on, when summarizing the essence of count 15:

"That there was an intention in the mind of the accused to carry out the unlawful purpose. The accused was acting dishonestly by the ordinary standards of reasonable and honest people." (Tr p 19H-I)

and then again when providing a précis of count 16:

"It is stated that it was the intention in the mind of the accused to carry out the unlawful purpose and that the accused was acting dishonestly by the standards of reasonable and honest people." (Tr p 19N-O)

51 The point taken is, with respect, not realistic, and pays little regard to context, to style, and to the whole of the summing up. The suggestion that the judge was telling the jury that there was but one part of Ghosh for them to consider, namely, that of the view that might be taken by the honest and reasonable person, does not fit at all with what the judge was, in truth, saying.

52 Well before any of these particular sentences which were delivered in the midst of sequential summaries of the allegations for each count, when dealing with count 1, the judge said:

"You have to be satisfied that the accused was acting dishonestly by the ordinary standards of reasonable and honest people, and that each of the accused must have realised that his or her act was dishonest by those standards." (Tr pp 14T-15A)

"You have to be satisfied about the intention in the mind of the accused to carry out the unlawful purpose to defraud the bank." (Tr p 15R)

Immediately before the passage complained about in relation to count 8, the judge had said:

"You have to be satisfied that there was the intention in the mind of the accused to carry out the unlawful purpose to defraud the bank." (Tr p 16F)

The same phrase was used time and again in relation to the summary of other counts. It is difficult to see how there could have been proved an intention in their minds to defraud the banks unless they realized that what they were doing was dishonest. These various passages which counsel for the applicant has highlighted are all passages within the context of summaries of the essence of each count, and occur after the first correct Ghosh direction, so that it must have been obvious that what the judge was doing when mentioning each subsequent count was to paraphrase, rather than to regurgitate, the precise formula.

53 What is more significant is what she said once she had completed the summary of each count, and went on specifically to address the jury about the term "dishonestly". It is worth setting out in full what she there said:

"Now, in respect of those conspiracy charges, there are certain things that I will just tell you about them. The word 'dishonestly' is used. Now, the word 'dishonestly' for the purposes of these charges means exactly what it says. It bears its ordinary meaning which is well-known and well understood by all of you. You probably will have little difficulty in deciding that furnishing false doucments about non-existent goods, if that is what in fact what happened, in order to induce the bank to advance finance to obtain the use of very large sums of money, it was dishonest by anybody's standards. Certainly by the standard of any ordinary reasonable person who is looking at the elements of the offence. And you have to be satisfied in respect of each of these charges that that dishonesty was established.

In deciding whether the prosecution has made you feel sure that one or other of the accused was acting dishonestly, you have got to decide whether what was done was dishonest according to the standards of ordinary and decent people. You have to make your own judgment of what those standards are. If you decide that it was not dishonest by those standards, the prosecution fails against that particular accused on that particular charge. If you are sure that it was dishonest by the standards of ordinary, decent people, then you have to consider whether one or other of the accused must have realised that what he or she was doing was wrong by those standards. And to decide this question you must consider the accused's own state of mind and of taking into account all the evidence you are sure that he or she must have realised this then the element of dishonesty has been established.

And as I said, you will probably find if you are satisfied that the accused knowingly agreed to obtain funds based on bogus transactions, you would have little difficulty in deciding that that was dishonest by the standards of ordinary, decent people. And that if the accused did enter into an agreement to obtain money under the letters of credit, they must have realised that what they were doing to make the banks believe the transactions were genuine was in fact dishonest.

Now, this is described as conspiracy to defraud. Now, to defraud somebody means that you act with deliberate dishonesty to the prejudice of the proprietary right of another person. In this case, the 'person' is the banks. Here, the prosecution says that the accused acted dishonestly to affect the rights of the various banks in the conspiracy charges. The accused is alleged to have dishonestly, and knowingly, put the various banks at risk by causing the banks to release funds on the letters of credit in the belief that the letter of credit was connected with real goods that formed the basis of a genuine transaction." (Tr pp 20-21) (Emphasis added).

54 Then yet again at page 28, when dealing with the offence of dealing in property the proceeds of an indictable offence:

"In fact, what the prosecution has to make you sure of is that each of these accused knew that an agreement had been entered into by two or more of the named conspiractors to do something which was unlawful - in this case because it was fraudulent.

The fact that they did not know that they had agreed to do constituted an indictable offence... is irrelevant. As long as they were aware that what they had agreed to do was dishonest, that it amounts to fraudulently inducing the bank to advance money to which the company was not entitled, you could be satisfied so that you are sure that what they were doing in transferring the money amounted to dealing in whole or in part ... with the proceeds of an indictable offence." (Tr p 28E-L)

55 If all that the jury had to consider was the attitude of the reasonable and honest person to the applicant's conduct, and that his own knowledge of the attitude was asserted by the summing up as a given, then these remarks of the judge at page 68 of her summing up of the applicant's evidence would have been odd indeed:

"If, having considered his account of the events and what happened in relation to these transactions and the explanation that he gave about those transactions, if you find that what he said has made you have doubts about the prosecution evidence on material matters, or if you think that what he has said is true, or might be true, then he has succeeded in casting doubt on the prosecution case and that would mean that you cannot be sure of his guilt and you would have to acquit him. That would be your duty as jurors to acquit in those circumstances." (Tr pp 68T-69D)

56 In so far as Mr Wilson interprets the sentence which, at page 17, reads:

"Now, each accused must have realised that his or her act was dishonest by those standards",

as a direction or suggestion that that was an established fact, that does not, as we have demonstrated, sit with the effect of the summing up as a whole. The reality is that this was the style in which the judge addressed the jury; and the words "and it must also be proved that" were clearly implicit, and were obviously taken be implicit, in the sentences thus spoken.

57 We note also that there was no complaint raised by counsel at the time of trial about this aspect of the summing up. The relevance of that is this, that had the manner of speech used by the judge been such as to create the impression which is now asserted, it would have been such an extraordinary assertion by the judge that we have no doubt but that counsel for both sides would have raised the issue with the trial judge, for it would surely have left the jury with no alternative but to convict. The fact of the matter is that the impression was not created, and the assertions which found this ground are not made out.

Ground 3: The lies direction

58 This is yet another case in which a trial judge's treatment of suggested lies by a defendant forms a ground of appeal. It illustrates, yet again, how important it is for trial judges to canvass with counsel, before any summing up, whether a lies direction is required and, if so, what the judge is minded to say to the jury on the issue, so that the matter can properly be considered. The situation has come to such a pass that this Court now finds that the lies direction, or its absence, almost invariably forms a ground of appeal: if a direction has been given, that it should not have been; if it has not been, that it should have been; and if not that, then something in between, that it has been given but not in the form in which it should have been given. Sometimes, of course, the complaint is justified, often not. Be that as it may, it would we suggest be prudent for the issue to be discussed in every case before counsel address the jury, so that a judge can be sure whether the prosecution is going to mention lies and if so, then which lies and to what purpose; whether as suggested support for the prosecution case or whether merely going to credit; and whether, in any event, there is suggested to be a risk that the jury might utilise lies for a non-permissible purpose.

59 As far as we are aware in this case, the issue was not canvassed. Counsel for the prosecution did not in his closing address suggest that lies supported the prosecution case. Both counsel before us say that there was no need in this case for a lies direction. On one view there may be something in that, although in the context in which the judge gave her directions, we do not think that she can fairly be criticised for embarking on the subject. The argument against the lies direction is based on the fact that this was a case in which the rejection of the applicant's account in evidence, an account which was contradicted by that which he gave to the ICAC, by the convoluted routes the monies took in finding their way back to those who had applied for the letters of credit, and by other witnesses, would in reality leave the jury with little choice but to convict. (See Yuen Kwai Choi v HKSAR, FACC 6 of 2002, as yet unreported, 9 April 2003). It is correct to say that even the account given by the applicant to the ICAC asserted that he, the applicant, did not think, on that account, that he was acting dishonestly, but if the essential story in the interviews was the truth, then given the admission in those interviews of knowledge of bogus transactions and of complicity in the forging of documents, that is a contention that was never going to be accepted. The prosecution tactic of relying upon lies as supportive of guilt, rather than as simply showing that the defence evidence is untrue and that the evidence led by the prosecution should therefore be accepted, was not, we are told, a tactic which was adopted in this case; and so it is said that no lies direction was necessary. On the other hand, it might be argued that there was some risk that if the jury found that the defence as run in oral testimony was a lie, it was a lie that had to be invented because the applicant knew full well that his protestations of no dishonesty to be found amongst the inculpatory remarks in the interviews were themselves false. Nonetheless that is not argued, and we see that in his closing address, counsel for the prosecution approached the case on the footing - which was not surprising given the nature of the clear admissions that documents and transactions were bogus - that the interview statements constituted what were in effect full confessions, quite contrary to the oral testimony of the applicant.

60 The judge's directions as to lies came at that stage of the summing up when the judge turned from the prosecution evidence to that of the applicant. She reminded the jury that there had been no obligation for the applicant to give evidence; that he had no obligation to prove anything at all; indeed, that if the jury were to find that what he had said was or might be true, the jury was then under an obligation to acquit him. She then said that even if they did not believe any of this evidence "that still does not take away the burden upon the prosecution to make sure of [his] guilt." (Tr p 69F).

61 The direction as to lies follows shortly thereafter, but we will start with the passage preceding those about which complaint is made, because we think that they provide a degree of context:

"You have seen how he gave evidence in respect of the video interview. The prosecution says that he was a man who was only too happy to assist the ICAC in the inquiries that they were making, and that he was relaxed and helpful and gave a great deal of detail about what the prosecution says are the truth of these transactions; in other words, that there were no underlying transactions. You have heard, at length, this accused give his evidence and be cross-examined about what he says when he says that, yes, that was what he said. He does not dispute that, but he says that that was not the entire truth, and he has explained why.

Now, you may decide, once you have considered the evidence given by the 1st accused and having heard what he said when he was cross-examined, that he has told one or more lies about various matters. The mere fact that an accused tells a lie is not in itself evidence of guilt. People sometimes lie for reasons other than because they are guilty. Sometimes people lie to make a genuine defence sound better; they might be trying to protect other people by the evidence that they give which might be a lie; they might lie because they think that the true story is so unlikely that it might be disbelieved and they make up a story that they think sounds more convincing. So there are all sorts of reasons of that nature why somebody might tell a lie.

If you find that the accused has lied and the lie might have been for one of the reasons I have suggested, then ignore the lie. Simply disregrd the evidence that you find untruthful and concentrate on the evidence which the prosecution has satisfied you is true and on that part of the defence evidence which you find to be true or which you find may be true." (Tr pp 70E-71C)

62 The grounds of appeal relating to lies make the following complaints:

"10. Those directions omitted the first part of the Lucas direction, namely, that the jury must be satisfied that the lie was deliberate, that it related to a material issue and that the motive for the lie must be a realisation of guilt and a fear of the truth.

11. The directions were also deficient because at no stage did the learned Judge indicate to the jury the lies to which she was referring. If, as is at least possible, her words may have been interpreted as meaning lies told in evidence, it is submitted that such a direction should not have been given, but if given should have made it clear that a lie told in court could not provide evidence that the accused committed the crime or otherwise strengthen the prosecution case and that it went only to credibility.

12. If, on the other hand, the direction was intended to refer to lies told out of court it could, on the facts, have referred only to the applicant's evidence that he had told lies when he was being interviewed by officers of the Independent Commission Against Corruption. The prosecution relied upon those parts of what he said in interview as being admissions of guilt. The applicant retracted them and if they were untrue they could not be lies which would constitute support for the prosecution's case. It is therefore submitted that a lies direction in those circumstances was otiose and confusing."

63 We are somewhat puzzled by this complaint. The judge had there just referred to the applicant's own contention that when he, the applicant, had spoken at considerable length to the ICAC, much of what he had said, over a period of four extensive interviews, was a lie. On either view of the case, whether the prosecutor's or the applicant's, the applicant had at some stage told lies and, on any view, major and deliberate lies; and the judge had just referred to the fact that at the very heart of the applicant's defence was an assertion that he had not told the truth to the ICAC. It was, we think, very natural for the judge to go on to say to the jury that even if they found that he, the applicant, had lied in the course of his testimony, that in itself was not to be treated by them as evidence of guilt - it was, she said never to be treated as evidence of guilt. That seems to us to have been a fair thing to have said; a statement that was at no stage greeted with any comment or objection or correction by very experienced counsel for the applicant; and one indeed wonders whether in these circumstances there may not have been an objection had the judge not said something of the sort.

64 The reference to the omission of one or two limbs of the Lucas direction is a submission which seems, with great respect, to be divorced from the case at hand. A direction that a lie had to be shown to be deliberate and material could only possibly have been relevant if it was suggested that the lie could in some way be used against the applicant, and the very point the judge was making was that it should not be so used; but, more pertinently, it is difficult to see how the lies to which the judge could only have been referring, which is either the lies told in interview or the lie about some indirect underlying transaction told in oral testimony (and we think it clear that it was the latter), could have been other than deliberate and highly material.

65 There is no requirement at all to give a full Lucas direction, as it is called, whenever lies are mentioned in a summing up. Indeed, R v Chong Chak On [1996] 1 HKC 152, reminds us that:

"The jury must of course be directed in the light of the facts of the instant case and the directions are best couched in common sense terms which they can readily understand." (p 157E-F);

and, as to the Lucas criteria, including the two which were omitted and gave rise to this ground:

"We are satisfied that Lord Lane [in Lucas, 724] was not, when he postulated the four requirements, formulating a mantra to be chanted to a jury each time it is suggested that the lies told by a defendant might be used to support other evidence of guilt." (page 158G-H, per Power ACJ),

Nor would the suggested inclusion of the two elements omitted have accorded with the directions which the Court in HKSAR v Mo Shiu Shing [1999] 1 HKC 43, at 57, suggested as a formula for the type of direction which might generally be given.

66 It is said then that the judge did not indicate to which lies she was referring, so that it is possible that she was referring to lies told in oral testimony and that, if so, she did not warn the jury that a lie told in court could not strengthen the prosecution case and went only to credibility. We note that the judge did not say in terms, as she ought, we think, that if the applicant lied but did not lie for an innocent reason, that could support the prosecution case. Such a comment completes the formula, and to that extent the formula provided by the judge was incomplete. We were at one stage concerned about it, lest it left the impression that if a lie were proved to have been offered for a non-innocent reason then it spelt guilt; but, as Mr Reading points out, the judge made it clear that in no circumstances did a lie do that; and, in any event, this is not a concern which Mr Wilson adopts.

67 The contention that lies told in court can go only to the issue of credibility and not in actual or positive support of the prosecution case does not, in our judgment, represent the law. We canvassed in the course of submission the example of alibi evidence, and we see from the seminal case of R v Turnbull [1977] 1 QB 224 itself the observation of Lord Widgery CJ, at page 230:

"It is only when the jury is satisfied that the sole reason for the fabrication [by false alibi evidence in court] was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence."

68 So, too, we note that Lucas does not support the proposition for which the applicant now contends:

"As a matter of good sense it is difficult to see why, subject to the same safeguards, lies proved to have been told in court by a defendant should not equally be treated as capable of providing corroboration". (see Lord Lane CJ at page 724).

69 The same sentiment goes back as far as Broadhurst v The Queen [1964] AC 441, 457, and probably further back still:

"Save in one respect a case in which an accused gives untruthful evidence is not different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused." (Emphasis added).

This is Mr Wilson's point. But, immediately thereafter, Lord Devlin, delivering their Lordships' reasons, said:

"But if upon the proved facts two inferences may be drawn about the accused conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt."

70 And much more recent authority also makes clear that lies told in court may be used beyond mere issues of credibility but in support of the prosecution case. See in particular R v Burge and Pegg [1996] 1 Cr App R 163 where, at 173, the Court of Appeal in England specified the circumstances in which a Lucas direction was usually required, one being:

"Where the prosecution seek to show that something said either in or out of court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge which it is sought to prove." (Emphasis added).

71 As to the third limb of the grounds which relate to the lies direction, we are satisfied that the judge could not possibly have been referring to the applicant's evidence that his confessions to the ICAC had been lies. This would have made no sense at all; and no one could possibly have understood the judge to be referring to that evidence in the passage of the summing up which contains the statement that the mere fact that a person lies is not in itself evidence of guilt.

Ground 4: The dealing counts

72 Here it is said that these counts were dependant upon convictions on the conspiracy counts, so that if the conspiracy counts are to be quashed, so too must the dealing counts be quashed. That is obviously correct.

Fresh evidence

73 The applicant was arrested on 15 January 2000 and tried in May and June 2001, after a trial which lasted 46 days. Notice of Appeal in this case is dated 30 June 2001.

74 By Notice of Motion dated 23 June 2003, the applicant seeks leave to adduce fresh evidence pursuant to the provisions of section 83V of the Criminal Procedure Ordinance, Cap. 221.

75 The evidence which it is sought to put before the court are the declarations of two persons, each dated 20 August 2002, made in anticipation of the applicant's appeal; that is, made more than two and a half years after the applicant's arrest, and one year and two months after his conviction.

76 The declarations are those of Mr Lin Yue Xin and of Mr Feng Shou. We have looked at the evidence de benne esse.

77 Mr Feng lives in Guangzhou City and his declaration was made on the Mainland. He says that he was head of the Five Mines Department of Southern Industrial and asserts that between November 1997 and August 1998, Southern Industrial entered upon five contracts for the purchase of steel from Kazakhstan and that these contracts were signed by himself. These are said to support the applicant's case that there were, albeit indirectly, genuine contracts supporting the applicant's case in relation to the first set of alleged conspiracies.

78 Mr Lin's declaration deals with the second set of transactions, in other words, the suggested existence of true contracts to purchase telecommunications equipment. He is or was employed by Southern Industrial and he lives just across the border in Shenzhen. He says that between January 1998 and January 1999, Southern Industrial and Createx signed five contracts for the purchase of telephone equipment. He exhibits the five contracts and he has signed each, as has the applicant. This evidence is said to support the applicant's case in relation to the second set of conspiracies, that is, in relation to count 11 to 16 inclusive.

79 Section 83V(2) of the Criminal Procedure Ordinance, Cap. 221 provides that:

"(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if-

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it."

80 The applicant falls very far short of overcoming the hurdle which is presented by section 83V(2)(b).

81 In relation to Mr Feng we are told in an affirmation made by the applicant and dated 23 June 2003, that Feng actually attended and gave evidence on the applicant's behalf at another trial which the applicant faced in January 2001 in the District Court. He says that he intended to invite Mr Feng to attend the High Court trial as well, but that Feng could not be reached. This in itself sounds hollow, since one would imagine that in January 2001 the applicant and his advisers would have known full well that a High Court trial was imminent and would have secured Feng's attendance. There is no evidence whatsoever from the applicant's former legal advisers as to any attempts made to contact Feng. In the event, says the applicant, someone else to fulfill the same intended purpose was asked to attend to give evidence at his High Court trial, a Mr Huang. He actually came to Hong Kong to give evidence but it was then discovered that he was not able to be of assistance, and he was not called. The affirmation is then silent as to any steps taken to contact Mr Feng. There was no application at trial for an adjournment so that he might be found. Nor did he come to this hearing so that that issue, or any other, could be determined. There is no explanation given for his absence.

82 As for Mr Lin, and why he was not called to give evidence at trial, the applicant's affirmation says that in May 2001 Lin came to Hong Kong to give evidence at the High Court trial but that he told the applicant's lawyers when interviewed that "he could only mention about general business relations between Southern Industrial and Createx and because of 'sensitive issues such as cargo import customs declarations, money exchange ... and development of communication items, he would try to avoid as far as possible and would not give any detailed information.'" So, according to this affirmation, his legal advisers took the view that since he could not speak in a frank manner, he would not be called. There is no confirmation about this from the legal advisers, and no suggestion that they or the applicant contacted Southern Industrial to seek the same freedom for Mr Lin to testify as had allegedly been conferred by Southern Industrial on the applicant himself. Now, however, it is suggested that Mr Lin has been provided with the green light by Southern Industrial which had previously been denied him. There is no evidence from Southern Industrial to support any of this.

83 We informed Mr Wilson that we were not prepared to act on the basis of the declarations or affirmation. If the applicant wished to press the application, it was for him to call evidence if he so desired. As a result of this intimation, Lin testified before this Court. The questions were directed to the issue of availability at trial, rather than to the authenticity of the documents which it would be intended to be produced.

84 We do not believe Mr Lin's testimony. He said that when he came to Hong Kong in 2001 to give evidence, he had not told his supervisor at Southern Industrial what it was he was coming for, and that he himself was not aware of the subject matter specifically. This is, in the light of the history of the matter, not credible in either respect. He then said that he was contacted on the second day of his visit to Hong Kong by his supervisor who told him that he was not to tell the court about the matter. How the supervisor came to know about the matter and why he would prevent the witness from being free to speak when the applicant had been given permission, is not explained. There is no suggestion that the lawyers, faced with this blockage from Southern Industrial on a matter of suggested importance, then contacted the Southern Industrial to find out what was going on and to persuade them to change their minds. There is again no evidence from the lawyers to support any of this. The problem was not raised at trial. The witness said in answer to questions from this Court that once he had been prohibited from giving evidence at trial he telephoned the applicant, who was then on bail, and told him what had happened. The applicant's response was, in effect, to shrug his shoulders and say that there was thus no alternative; in other words, nothing to be done. This, too, is not credible.

85 The fact is that there exists nothing approaching a reasonable explanation for not calling the evidence of either Feng or Lin. Mr Wilson has sought to persuade us that, nonetheless, the evidence should be admitted and on this footing a new trial ordered, because, he says, we are not precluded by the terms of section 83V(2) from admitting it even in the absence of a reasonable explanation. The discretion, he says, is at large and he cites a number of English cases for that proposition; in particular R v Pendleton [2002] 1 WLR 72; and R v Cairns [2000] Crim L R 473. The statutory provision which governed the approach in those cases are different from those in Hong Kong, in that the failure to provide a reasonable explanation for not adducing evidence at trial is couched in England as merely a matter to which the court is to have regard in deciding whether or not to receive fresh evidence; although we see from the commentary to Cairns by Professor Sir John Smith the suggestion that, under legislation which accorded with the terms of Hong Kong's present section 83V, the court still maintained power to admit evidence if it thought it necessary in the interest of justice so to do.

86 One notes the type of case illustrated by Pendleton and Cairns, where there existed compelling reason for the admission of new evidence; in the first case a reference by the Criminal Cases Review Commission, and in the second a decision made in the light of new and exculpatory forensic evidence. Each case must be viewed in its own light, and the light we have in this case is of evidence which if credible must have been thought at the time to have been important by those representing the applicant. Yet no steps were taken to find Feng, and none to persuade Southern Industrial to relent from its suggested reluctance to permit Lin to say what he wished. In the case of Feng he has not appeared before us, and we have no confidence whatsoever in the veracity of any of the information supplied in his regard. In the case of Lin, he is not, we adjudge, a witness of truth, and we do not accept that he was precluded by the company from telling whatever he knew. This in itself casts grave doubt on the authenticity of the documents to which he speaks. In any event, the documents which the applicant now seeks to produce were presented to the jury bearing the applicant's signature, and his evidence about them was not accepted.

87 It is against this background, and the cogent evidence against the applicant at trial, that we are asked to set aside the deliberations of 46 days of trial and order a fresh trial. We are satisfied that it is not necessary or expedient in the interest of justice to admit the evidence and we do not in any event deem it evidence likely to be credible. Accordingly, the application to adduce fresh evidence is refused.

Conviction: Conclusion

88 It follows from the analysis which we have conducted and the reasoning which we have provided that the application for leave to appeal against the convictions must be dismissed, and we order accordingly.

Sentence

89 The judge sentenced the applicant as follows:

(1) Counts 1, 6, 8, 9 and 10 (the conspiracies with Asian Honour): four years' imprisonment;

(2) Counts 2,4 and 7 (the dealing counts): two years' imprisonment;

(3) Counts 11 to 16 inclusive (the FDC conspiracies): five years' imprisonment.

She ordered the sentences for the first group of offences to run concurrently. She ordered the sentences on the second group of offences (dealing) to run concurrently with each other, and concurrently with the sentences for the first group; thus far a total of four years' imprisonment. She then ordered the sentences on the third group of offences (the FDC conspiracies) to run concurrently, but consecutively to the sentences on the other groups, making a total of nine years' imprisonment.

90 In her sentencing remarks, we find the following points made by the judge:

(1) She accepted that in respect of the first group of offences, the applicant was not the instigator of the offences;

(2) The applicant was the instigator of the second group of offences;

(3) The sums obtained were very substantial: in excess of HK$120 million;

(4) The frauds were deliberate and planned;

(5) None of the banks lost money, save for the Bank of Tokyo-Mitsubishi where the loss was US$2.7m: that sum was still outstanding;

(6) Despite the fact that the banks by and large did not lose money, each was placed at substantial risk;

(7) The frauds abused that part of the banking system that is used to ensure the efficacy of commercial trading which depends on letters of credit;

(8) Forged documents were presented to effect the crimes;

(9) The applicant himself did not gain personally from the crimes;

(10) The applicant had a clear record before the commission of these offences;

(11) "He has also been in a responsible position in the army and he was also entrusted by Southern Industrial to come and open a window company in Hong Kong. He has abused that trust.";

(12) The offences were committed over a long period.

91 The judge said that she thought that the overall global sentence for a case of this kind before mitigating factors were taken into account, was one of ten years' imprisonment. In the event, in view of the mitigating factors, which were, it seems, his clear record - which, as she said, in a case of this kind, counted for not a great deal - and the fact that he did not benefit himself from the offence, she settled upon a global term of nine years.

92 It is said by Mr Wilson that the judge was wrong to suggest that this was an abuse of trust case. Mr Reading tended to agree, pointing out that abuse of trust cases are classically those in which the trustee employee has set out to cause loss to his employer; and that this was not such a case. In that sense we agree, but we rather doubt that the judge meant quite that when she made her comments. The comments seem to be a reference to trust being placed in an employee to behave honestly on the company's behalf and not dishonestly, even if supposedly for the company's benefit. But it is true that this was not a classic breach of trust case, and that there is no conclusive evidence as to the extent of knowledge of those in positions superior to the applicant as to what was going on. However, Mr Reading has drawn our attention to parts of one of the interviews in which the applicant was telling the ICAC officers how it was thought that the company could be helped to develop and that a Board of Directors meeting was held and that the applicant thought there was a risk in carrying out a plan to obtain monies through letters of credit, but that his general manager "insisted to go ahead ... to do it". Although we note the comment by the applicant in an interview, and to which we refer at [20] above that Southern Industrial did not know what he was doing, the context may be limited to the Asian Honour transactions or even to one aspect of his conduct. In the end, we are not in a position to determine how much Southern Industrial knew about what was going on, and Mr Reading does not suggest that they had no knowledge of it. There is no statement from them, as far as we are aware. On balance therefore, one should give the benefit of the doubt in this particular regard to the applicant.

93 The sum outstanding to the Bank of Tokyo-Mitsubishi has since sentence been repaid and it is a matter which we must take into account. The reason that it had not been repaid by the time of trial was that as a result of a restructuring exercise, payments to the banks were frozen. Be that as it may, the freeze has been lifted since, and the result is that there is in the event no loss to the banks. This is a new and material factor to be taken into account, although it has limited impact. The evil of frauds such as these are the attack on the integrity of the letter of credit system, a system which is the lifeblood of commerce, and the substantial risks to which banks are put by the absence of underlying security.

94 The other factors upon which Mr Wilson placed emphasis are either matters that the judge took into account or are suggestions with which we do not agree. In the former category is the fact that the applicant did not himself profit from the frauds. In the latter is the argument that the sentences should have run concurrently. The two sets of offence were quite separate, one at the instigation of Madam Tang for the benefit of Asian Honour or Guangnan; the other at the applicant's own instigation, entirely for the benefit of his own company.

95 We think that the sentences imposed for the individual offences were correct. The only question is the totality especially in the light of the new factor to which we have referred, namely the full repayment, which was not the position when the judge came to pass sentence. We think that in the result the appropriate overall sentence in this case is now one of eight years' imprisonment; and we shall accordingly grant the applicant leave to appeal against sentence, treat the hearing of the application as the hearing of the appeal; and set aside that part of the order of Beeson J which ordered the sentences on counts 11 to 16 to run wholly consecutively to the rest and we shall substitute therefor an order that they shall run consecutively to the extent of four years, with the balance to run concurrently, making a total of eight years' imprisonment.