HKSAR v. KWAN SHUK CHING TRACY AND OTHERS

CACC 64/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 64 OF 2001

(ON APPEAL FROM HCCC NOS. 180 & 265 OF 1999)

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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 These are applications for leave to appeal against convictions and sentences.

2 The five applicants, to whom we shall in the course of this judgment, for convenience, refer by their designation at trial, were five of seven defendants who faced eight counts upon an indictment, each of which charged conspiracy to defraud. They were tried in the High Court before Pang J and a jury and, on 19 January 2001, they were convicted and sentenced as follows:

D1 was convicted upon Counts 4, 5 and 6, and sentenced on each count to a term of four years' imprisonment, to run concurrently.

D3 was convicted upon Counts 2 and 6, which had been the only two counts which he had faced (that is, after the judge had directed an acquittal in relation to all defendants on Count 5), and sentenced to a term of four years' imprisonment on each count, again to run concurrently.

D4 was convicted in respect of all the counts he had faced, which is to say all the counts remaining on the indictment after Count 5 was the subject of the acquittal direction. He was sentenced to six years' imprisonment on each count, ordered to run concurrently.

D5 was convicted upon all the counts remaining, after Count 5, and sentenced to a term of four years' imprisonment on each count, to run concurrently; and

D6 was convicted of all the counts which he had faced, namely, all the counts on the indictment, save Count 5 in respect of which he was not a defendant. He was sentenced to a term of four years' imprisonment on each count, to run concurrently.

The case

3 The case is a letter of credit fraud, the essence of which was the payment of sums by different banks which had issued documentary credits on the application of a company called Am-Asian Resources International Ltd ("Am-Asian") in favour of a number of supposed suppliers of garments and fabric. Documents were presented to the banks in support of suggested compliance with conditions precedent to payment under the documentary credits, such as invoices and other documents said to evidence delivery of goods; and payments were then made by the banks to honour the documentary credits. However, the whole affair was bogus, for the fabric or garment companies were creations of those who owned and ran Am-Asian, or of those who enjoyed some other close link; the goods were not supplied; and the funds which were paid to the supposed suppliers found their way back to Am-Asian or to their directors.

4 The main, though by no means the only, evidence for the prosecution emerged from a co-conspirator, a person called Angie Tsang who joined Am-Asian in July 1995 and worked for, or to, D4 and D5. D4, Samuel Kwan, is the brother of D5 (Joyce Kwan) and of D1 (Tracy Kwan) who is the younger of the two sisters. D4 held 50% of the shares of Am-Asian, and the two sisters 25% each. It is unnecessary for the purpose of this appeal to go into the details at great length. Angie Tsang was told by D5 in about May 1996 that she was to establish a number of companies, one called Nippon Trading ("Nippon"), and the other called Ontrade, the company address for which was that of D4's wife's office. She, Tsang, opened bank accounts for the two companies and became their owner or proprietor. The purpose of this exercise was for Nippon and Ontrade to produce documents - invoices, for example - to enable Am-Asian to obtain commercial credit from banks. Ontrade did not in fact operate; had no staff; and produced and supplied no goods, whether to Am-Asian or to anyone else. She signed blank notepaper, cargo receipts, beneficiary certificates, blank cheques and so on at the behest of D4 or D5. Then, when Nippon or Ontrade was paid pursuant to documentary credits, it was for Ms Tsang to secure the transfer of the sums thus paid, to accounts at the instruction of D4 or D5.

5 Then there was the evidence of a Mr Lee, who also testified under an immunity, and he was a director of a company called Panadon, the name of which features in Count 1 as one of the bogus suppliers. He confirmed that, contrary to the face of a letter of credit shown to him whilst he gave evidence, Panadon had in fact supplied no goods. What had transpired is that D4 had asked Mr Lee to lend himself to the scheme by which a letter of credit would be issued, with Panadon as beneficiary, and that when Panadon was paid, he, D4, would draw a cheque less the handling charges. Am-Asian was short of funds, according to D4; hence the scheme. A bogus Panadon invoice was presented, as well as other bogus documents. Mr Lee issued a cheque to D4 in the sum of $516,770 with the payee section unfilled, and Panadon, in due course, received $516,000 under the letter of credit.

6 D4 had once worked for the Kwong On Bank and also for the Kwantung Provincial Bank. D3 who had worked with D4 at the Kwantung Provincial Bank was his friend, and D6 and D4 had worked together at the Kwong On Bank. D3 was a director of a company called Teamex, and signatory to the accounts of a company called Sing Tech. D6 was the proprietor of a company called Skylight. All of these companies feature in the indictment as beneficiary companies.

7 The judge put the matter to the jury in this way:

"It is the prosecution's case that the 4th defendant, Samuel, and his two sisters, Tracy and Joyce, with the assistance of the 2nd defendant Teresa [with whom we are not in this appeal concerned], who was the accountant of the Am-Asian Resources group of companies, falsely pretended to trade with the companies under the control of Chan Pui-wa, the 3rd defendant; Chan Wo-on, the 6th defendant, and Angie Tsang Nga-yi, where Am-Asian would apply to the banks for documentary credit for payment of goods purportedly supplied by the beneficiary companies." (Tr. pp 23-24).

The counts

8 Between December 1986 and August 1997 Am-Asian successfully applied to at least eight different banks for documentary credit and, in each case, Am-Asian supplied supporting documents to the banks the effect of which documents was to say that goods had been supplied by various named sellers. The eight counts differ in this regard, that each count is distinguished by the bank targeted by the conspirators. The evidence showed that the banks were targeted in sequence, and that each assault on each bank lasted but a short period, before the assault was directed at the next bank.

9 We do not intend to rehearse the terms of all the counts. It suffices to illustrate the nature and detail of them by reciting the first:

KWAN Shuk-ching Tracy, LEUNG Suk-mei, KWAN Kwok-tai, KWAN Shuk-ching Joyce and CHAN Wo-on, between 1st day of April 1997 and 30th day of April 1997, in Hong Kong, conspired together and with LEE Hei-loi and TSANG Nga-yi Angie to defraud the Bank of East Asia Limited (hereinafter known as "the said bank") by dishonestly representing to the said bank, by the use of false supporting documents, that various quantities of fabric and garments had been sold by Nippon Trading (HK) Company, Ontrade Company, Skylight Trading Company and Panadon Limited (hereinafter known as "the said companies") under the control of the said accused or some of them, to Am-Asian Resources (International) Limited, thereby causing the said bank to pay to the said companies the amount of the purported purchase prices of the goods specified in the said false supporting documents, namely various quantities of fabric and garments, from certain facilities which were made available to the said Am-Asian Resources (International) Limited, by the said bank.

10 The remaining counts differed as to dates, the companies supposedly supplying the goods (though we see the names of the same companies repeated in various of the counts) and, singularly, the name of the bank targeted by the fraud.

The Landy point

11 There is but one ground advanced by counsel for D1 and D5, and it is framed as follows:

"The indictment was defective to the prejudice of the appellants in that it failed to comply with section 3 of the Indictment Rules in that it failed to set out the particulars necessary for giving reasonable information as to the nature of the charge."

12 Relied upon for this proposition is rule 3(1) of the Indictment Rules, and the case of R v Landy [1981] 1 WLR 355.

13 Rule 3 provides as follows:

"(1) Subject to rule 4, every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence with which the accused is charged describing the offence shortly, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.

(2) An indictment for a specific offence shall not be open to objection in respect of its form if it is framed in accordance with a form of indictment for that offence which has been approved by the Chief Justice.

(3) Notwithstanding paragraph (1), a judge may order further particulars of an offence stated in an indictment to be delivered in any case in which he deems it expedient to do so."

14 It was said in Landy that a count charging conspiracy to defraud "should set out concise and clear particulars in order to inform the defendants and court of the prosecution's allegations"; and the object of that exercise in such cases is "to enable the defendants and the trial judge to know precisely and on the face of the indictment itself the nature of the prosecution's case, and secondly, to stop the prosecution shifting their ground during the course of the case without the leave of the trial judge and the making of an amendment." (per Lawton LJ, 362).

15 We do not think that the principle which Landy had in mind is offended by the counts in the present indictment. It is instructive to note what it was in the Landy indictment that was missing. There was nothing in that indictment which specified the manner in which false representations were said to have been made, or how the funds in question were employed to the prejudice of customers, and the particulars ended with the vague catch-all phrase "and by divers other false and fraudulent devices". We note, too, that in that case there were pleas made for particulars, which were not forthcoming. In this case there was no such request. To the contrary, there was insistence that the prosecution should stick to the charges as laid, and not go outside their parameters, and no complaint at trial was made that the case against the defendants was not clear. There was an issue about the indictment, to which we shall shortly turn, but it was an issue of a different type. The counts specified what it was that constituted the false representations in each instance which were at the root of the intended fraud; the method of the false representation was perfectly clear to all concerned, namely, in the act of applying to the banks for credit facilities; as was clear the intended effect of the conspiracy in each case, the dates, and the vehicles for the fraud. No one was under any illusion but that this was an allegation of a straight-forward letter of credit fraud; and any defendant facing any one of these counts knew full well that he was charged with a conspiracy to steal from a bank by lending himself to a pretence that various named companies had engaged in arms length transactions with Am-Asian, when they had not. In addition, the defence were handed, at the outset of the trial, charts which particularised the transactions supporting each charge and in our judgment, no one could have been in any doubt as to what it was that was alleged against him or her.

The Griffiths point

16 Our rejection of the Landy argument in relation to D1 and D5 does not, however, lead us to reject their applications for leave to appeal against conviction at this juncture for, within the framework of the argument of Mr Grossman SC, who appears for these particular applicants, is an adoption of the first of the grounds advanced by Mr Wu on behalf of D3, D4 and D6. Indeed, it is to be found within Mr Grossman's skeleton argument in an allegation that "different bits of evidence related to different defendants and different aspects of each of the transactions in each count."

17 This point, argued by Mr Wu and adopted by Mr Grossman, is a point arising from the decision in R v Griffiths [1966] 1 QB 589, which evidences, in the context of conspiracy, the rule that no more than one offence should be charged in a single count. The essence of the point is summarized thus:

"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 ...." Archbold Criminal Pleading, Evidence and Practice [2002] para 33-48.

The examples provided in Griffiths, at pp 598-599, are illustrative:

"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 in the same way. I have not knowingly attached myself to a general agreement to defraud. Similarly, the Post Office clerk who agrees to alter a date stamp in a case where a bookmaker has been swindled must know that the alteration is to be used for a fraudulent purpose. He therefore joins a scheme to defraud that bookmaker, of whom he may not have heard, but he cannot be indicted, merely because he has agreed to alter that stamp, on a charge of a conspiracy to alter date stamps and cheat bookmakers all over the country."

18 In this case, the applicants say that in each count there was more than one vehicle by which the bank named in that count was defrauded, namely, the different companies alleged to have supplied goods; and in the case of each company or each act of alleged supply, different defendants committed different acts. How is it said, for example, that D3, if he was party to an act with D4 by falsifying documents bearing the name of his company Teamex, was party to a wider conspiracy to which others were also party?

19 The point was one which troubled the prosecutor in the court below for we see that, shortly before submissions of no case to answer were to be advanced, he sought leave to amend the indictment in order to counteract any potential problem. The application to amend was opposed, and the judge declined the invited course, predominantly, it would seem, on the basis that to do so would make the case unnecessarily complex for the jury. We see also that the judge did not specifically address the Griffiths issue in the summing up.

20 If there is any one point in this appeal that has exercised our concern, it is the Griffiths issue.

21 The answer in this case lies in the factual framework within which these applicants were said to operate, a framework quite different from that which concerned the court in Griffiths; and the difference between this case, on the one hand, and, on the other, the type of case with which Griffiths was concerned, is that there was here evidence to support, in the case of each count and as against each applicant, the single conspiracy charged. In this case - in which none of the applicants with whom we are in this appeal concerned gave evidence to state what he (or she) did or did not know about other members of the conspiracy and about the company vehicles used, and why he (or she) was signing invoices and assisting in the re-routing of funds - the judge told the jury that it was not necessary to found a conspiracy for all the members to know the identity of everyone else involved, nor the full extent of it, provided that he knew that there were one or more others involved, and provided he knew the intent of the conspiracy. The indictment, in each count, unlike the case of Griffiths, charged that the person named had "conspired together" with the others named, a point emphasized by the judge in the summing up, and he correctly summarized the prosecution's case as one in which the Kwans "falsely pretended to trade with companies under the control of the third and sixth defendants and Angie Tsang". That is how the case was opened by the prosecution who, also in that opening, drew to the jury's attention how the companies were linked, and how D3 and D6 were responsible for the beneficiary companies ensuring that money went back to Am-Asian. The jury were provided at the outset with charts, which we have seen, which show how the activities of the defendants were interlinked. It suffices to say that D4, D1 and D5 were at the heart of the suggested conspiracy, and the evidence disclosed an ongoing assault on banks. We have been shown a chronology of events which demonstrates that each bank was targeted consecutively; each the subject of an assault lasting but a few days, during which a number of different companies were used as vehicles for the fraud on each bank - a number used, rather than one, no doubt so as to lend a hue of legitimacy to the picture presented to that bank. D3 owned the company called Teamex, and he was a signatory for Sing Tech. A personal acquaintance of the core Kwan defendants, he signed a false invoice in the case of Count 2, and it was from his company that funds received from the bank under the letter of credit in that instance went out back to D5. Teamex shared the same registration address as Am-Asian company addresses, and changed that address when Am-Asian changed it. He was party to a quite separate attack (Count 6) on yet another bank and, on this occasion, we see that the moneys went from the company upon whose account he was a signatory, as well as from Teamex, to D6. D6's name appears on every count. He it was who took Angie Tsang to open new accounts for the companies created as hers, created for use as vehicles for fraud. He, too, signed documents and caused funds to be transferred. There was evidence that D6 would frequent the offices of Am-Asian and that, sometimes, when bank officers came to those offices, he was asked to leave before they arrived, so that they would not know the connection between this proprietor of a beneficiary company and the applicants for documentary credits. No one defendant was involved in only one transaction. As for D1, D4 and D5, they were at the heart of a running and ongoing adventure, at the centre of Am-Asian.

22 It is idle in the circumstances to suggest that there was no evidence as against each of the defendants with whom we are concerned, to support a single conspiracy in the case of each count. There was ample evidence from which this jury could infer that each defendant must have known that he was party to a conspiracy which had to involve others, and known what the nature of that conspiracy was. The attempt by the prosecution to amend the indictment was opposed by those acting for the applicants on the ground that it was too late; but it was not part of the defence case, as put to the jury, nor was the judge invited so to leave it to them, that there may have been a number of isolated and disconnected conspiracies.

23 In these circumstances, we find against the applicants on the Griffiths point.

No goods, and the judge's directions

24 The second point taken upon this application by Mr Wu - and his grounds are constituted, with our leave, by a combination of two documents; one ground emerging from the original perfected grounds, and the other from the amended perfected grounds - is that the judge directed the jury wrongly, it is said, that there was no need to prove that no goods were supplied; in other words, no need to prove the absence of a genuine transaction underlying each documentary credit said to have been obtained fraudulently.

25 This ground is taken from a number of passages in which the judge told the jury that there was no need for the prosecution to prove every, "indeed any, transaction listed in a count" and he said also "this case is not about whether there were any goods in the transactions." That last comment was indeed an odd comment because the absence of goods was very much part of the prosecution case, and there was evidence led, and quite a bit of it, proving the absence of goods.

26 These matters must be looked at contextually, by which we mean in the context of the case as a whole; the summing up as a whole; and the speeches and contentions which were put before the jury. A great deal had been made, by counsel for several of these applicants, to the jury, of the suggested need to prove, by calling witnesses and producing documents, that there were no goods. The gravamen of those submissions was that it was not good enough to call, say, the witness Tsang to testify that she had not seen any goods - "they've got to prove there were no goods". And we note that the comments of the judge which have been criticised had within them a direct reference to counsel's submissions about proof of the absence of goods. Counsel's submissions, in so far as they suggested that there had to be direct evidence in each instance of the fact that there were no goods underlying the documentary credit, was a submission which had to be corrected. Where Ms Tsang was involved in making false documents for companies which were supposed to be at arms length from Am-Asian but which had no staff and were in fact operating, to their limited and fraudulent extent, within the offices of Am-Asian, and where parties were engaged in re-routing funds from these companies to Am-Asian, it hardly needed direct evidence to demonstrate that no goods existed. That could be inferred. To concentrate on the passages in the judge's summing up of which complaint is made is to ignore others, such as:

"If you are satisfied, after looking at all the evidence that there were in fact no goods involved in a particular count, or in a particular transaction, then this is evidence for you to infer that there had been an agreement by the defendants involved to defraud the bank. The prosecution does not have to prove that there was no goods at all in every transaction in a count.

The prosecution also says that by tracing the flow of the money, the money flow, you can also infer that there was an agreement to defraud. Look at the way the funds paid by the banks under the transaction flowed or routed back to one of the Kwans or to Am-Asian. This shows, the prosecution says, there was no genuine transaction; the proceeds of sale never stayed with the seller companies.

In approaching the issues, this is what you should do - look at the evidence carefully, then you should ask yourselves these questions in respect of each count. On the evidence before you, are you satisfied that there was an agreement to defraud the bank? In this regard, you may wish to look at the evidence about the companies involved - their addresses, the way they operated, how the prosecution witnesses suggest there were no goods involved in the transactions, how the documents were prepared, and the flow of money. This is what you should consider rather than concentrating alone on that there were no goods." (Tr. 25)

27 That is the true context in which the judge's comments, now critized, were made; and the passages of which complaint has been made have unrealistically been isolated from the whole, and from the point which they sought to answer. This was a case at the root of which was evidence that bogus transactions and bogus documents were put forward. There was much from which the bogus nature of the underlying transactions was to be drawn, and it was, indeed, unnecessary for the prosecution to prove by direct evidence in each instance that there were no goods. We think, with respect, that the point is not a good one.

28 Accordingly, the application for leave to appeal against convictions in the case of each applicant is dismissed.

Sentence

29 Complaint is made that, in sentencing, the judge assumed that the overt acts (including the non-supply of goods) and knowledge of them had been proved, whereas the judge had told the jury that they could convict on the basis of an agreement alone, and that non-supply need not be proved. Since the judge could not know, so the argument goes, what facts the jury found - whether an agreement alone, or an agreement as well as non-supply of goods - he was bound, it is said, to sentence upon some lowest common denominator which, in this case, was an assumption that all that was proved was a putting together of heads, without any overt acts.

30 The premise for this submission, for reasons we have explained, is ill founded and, for that reason alone, the point goes. We do not find it necessary to analyse the authorities which have been advanced, which address the proper approach to a factual basis for a sentencing judge when the verdict does not necessarily imply a clear choice of fact, amongst a range of choices, where that choice makes a difference to sentence. This case carried nothing like the factual matrix and divergence of clearly defined issues which underlay the decision in R v Efionayi [1995] 16 Crim App R(S) 380 upon which the applicants rely.

31 There was no possible basis in this case upon which the judge could realistically assume that the jury might have convicted on the footing that there had been a mere putting together of heads without any overt acts. The fact that the judge told the jury that that sufficed for a conspiracy was quite correct. That indeed is the law. As for his comments that there was no need for direct proof in each instance that there were no goods, we have dealt with the context in which that was said. To suggest in this case that the jury might have convicted on the footing of no overt acts, when the case depended on overt acts and when the case had run for some 69 days with one overt act after another being placed before the jury, is to depart from the case itself altogether. The judge was wholly entitled to sentence on the basis upon which he did. Indeed, it would have been astonishing had he sentenced on any other basis.

32 The applications for leave to appeal against the sentences imposed are also dismissed in the case of each applicant.