HKSAR v. LIU WAI KOON AND ANOTHER

DCCC 1014/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1014 OF 2013

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REASONS FOR VERDICT

1.  The defendants plead not guilty to one charge of fraud, contrary to section 16A of the Theft Ordinance, Chapter 210. I will refer to the defendants throughout my verdict by their numerical designations D1 and D2.

Introduction

2.  In 1964 Mr Suen Kwai Lin acquired two-thirds share of six lots of land in Demarcation District (D.D.) No 90, namely Section B of Lot No. 751 and Lot Nos. 752, 753, 778, 780 and 781.  Mr Suen Kwai Lin passed away on the 24 June 1967 intestate.  No letters of administration were taken out until the 3 December 2010 when administration of the estate was granted to Mr Suen Fu Wai, the eldest surviving son of sixteen children entitled to the estate of their late father. In the meantime in 1994 the Government had resumed one of the six lots, Lot No. 752.

3.  The charge relates to the two-thirds share of the remaining five lots namely Section B of Lot No. 751 and Lot Nos. 753, 778, 780 and 781 (“the five lots”). On the 17 January 2011 Mr Wong Hon Sun and Mr Ho Yuet Ming through their company Power Place Development Limited (“Power Place”) entered into a Provisional Agreement for Sale and Purchase of the two-thirds share of the five lots.  All dealings in respect of the sale were conducted with D1 and D2, Mr Wong and Mr Ho having never met Mr Suen Fu Wai. 

4.  Mr Wong and Mr Ho relied on an authorisation produced by D1 stating under remarks that he was authorised by Mr Suen Fu Wai to deal with the sale of the five lots.  D1 had been referred to Mr Wong and Mr Ho by D2, a licensed sales person with Uni-Power Property Consultants Limited (“Uni-Power”), a licensed estate agency.  D2 signed the Provisional Agreement for Sale and Purchase on behalf of Uni-Power, who acted as agent for both the vendor and purchaser.  A deposit of $500,000 was paid by cheque made payable to D1.  Completion was set for the 30 April 2011 however no completion took place.  Subsequently the deposit was refunded together with $150,000 compensation.

5.  The prosecution case in summary is that Mr Suen Fu Wai only authorised D1 to deal with the inheritance of the estate of his late father and to negotiate with the Government for compensation in respect of the resumed Lot No. 752.  Although Mr Suen had, subject to agreement of all his siblings, said that if the price was right he would sell the five lots and allow D1 to deal with the sale he had never given written authority to D1 to sell the five lots.  The prosecution say Mr Suen was not told of the price or of the sale to Power Place; never authorised the sale to Power Place and did not sign the Provisional Agreement for Sale and Purchase.  The authorisation produced by D1 to Mr Wong and Mr Ho although bearing Mr Suen’s signature did not have the remarks typed in authorising D1 to sell the five lots when Mr Suen signed. 

6.  In summary the case of D1 is that he was not dishonest.  The authorisation was given to him by Mr Kong Sin Tit, a mutual friend of his and Mr Suen.  D1 trusting in Mr Kong believed that the authorisation was genuine.  The case of D2 as put in final submission is that there is no evidence that D2 was dishonest and that the prosecution have failed to prove the charge against D2 beyond reasonable doubt.   

Evidence

7.  The prosecution called five witnesses, namely Mr Wong Hon Sun (PW1); Mr Ho Yuet Ming (PW2); Mr Suen Fu Wai (PW3); Mr Luk Kwok Ho (PW4) assistant manager of the Estate Agents Authority who produced the estate agents licences of Uni-Power (exhibit P28) and the salesperson’s licences of D2 (exhibit P29) and Mr Li Tak Cheung (PW5) from the complaints section of the Estate Agents Authority who produced the Code of Ethics and Guide to Estate Agents Ordinance (exhibit P33) together with Practice Circular November 2009 (exhibit P34) and Press  Release (exhibit P35) relating to verification of identity of vendors. 

8.  Evidence has also been admitted pursuant to section 65C of the Criminal Procedure Ordinance, Chapter 221 (exhibit P32), including the ownership of the five lots (exhibits P10-P14); the resumption of Lot No. 752 by the Government; the Letters of Administration (exhibit P30); the arrest of the defendants; the identification of D2 by photographic identity parade (see exhibits P26 & P27); incorporation form and annual return of Power Place (exhibits P21 & P22); and bankers affirmation relating to the payment of the deposit (see exhibits P15-19 & P31). 

9.  The numbering of exhibits produced follows the list supplied by the prosecution. Exhibits P1-P31 are contained in the trial bundle (marked ‘A’ for identification) save that various company documents relating to Power Place (exhibit P20) and Uni-Power (exhibits P23-P25) were not produced.  The admitted facts were marked exhibit P32 and exhibits P32-P35 are additional exhibits.

10.  D1 elected to give evidence.  Two witnesses were called on his behalf, namely, Mr Yap Yan Wing Stephen Reed (DW1) solicitor of Yap & Lam and Miss Cheung Lai Ching (DW2) secretary with Yap & Lam, who issued a receipt (exhibit D2) for the fees of Yap & Lam in connection with the estate of Suen Kwai Lin for which Mr Yap was the handling solicitor. 

11.  D2 elected to remain silent.  No adverse inference is drawn against D2 for remaining silent.  That is his right.  This proves nothing one way or the other.  This does not establish his guilt.

12.  I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  The defendants have to prove nothing.  I direct myself that I must be sure of the guilt of the defendants before I can convict, the case of each defendant to be considered separately.  On the other hand if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and the defendants entitled to be acquitted.

13.  I remind myself that when drawing inferences from the evidence the inference must be a compelling one and the only one that no reasonable man could fail to draw from the direct facts proved.

Provisional Agreement for Sale and Purchase

14.  There being no issue that Mr Wong (PW1) and Mr Ho (PW2) through their company Power Place entered into a Provisional Agreement for Sale and Purchase of the five lots (exhibit P2) I can briefly summarise their evidence, which evidence was largely unchallenged. 

15.  In 2009 Mr Wong and Mr Ho were interested in buying the five lots but were unable to find or contact the landowner.  Towards the end of 2009 and the beginning of 2010 Mr Wong came to know D2, who worked in a property agency.  Mr Wong and Mr Ho met D2 a number of times when they expressed their interest in buying the five lots.  In cross-examination Mr Wong agreed that at the first meeting D2 did not say he could contact the landowner or that he could assist in the deal.

16.  Around December 2010 after D2 said he was able to contact the landowner a meeting was arranged in a restaurant in Fanling.  At the meeting D2 introduced D1 as someone who knew the landowner and was therefore able to act as the agent of the landowner in the sale of the five lots.  D1 showed an authorization (exhibit P1) purportedly signed by the landowner Mr Suen (PW3) authorising D1 to sell the five lots.  In cross-examination both Mr Wong and Mr Ho agreed that D2 never told them that he had a power of attorney representing the owner of the five lots. 

17.  A further meeting was held on the 17 January 2011 when the Provisional Agreement for Sale and Purchase of the five lots was signed for the agreed price of $5.2 million.  Mr Wong signed on behalf of Power Place; D1 on behalf of the vendor and D2 on behalf of Uni-Power.  Mr Ho on behalf of Power Place also signed an agreement (exhibit P3), which was witnessed by D2, to pay a consultant fee to D1 on successful completion of the purchase.  A copy of the authorisation (exhibit P1) was given to Mr Wong at this meeting.  Mr Wong said there was probably no separate agreement signed with Uni-Power. 

18.  A deposit of $500,000 was paid by cheque (drawn on the account of New Century Trading Co) and signed by Mr Wong.  The cheque was post-dated and made payable to D1.  When Mr Wong asked D1 why the cheque was not made payable to the landowner D1 replied that he was authorized to collect the money and that he would make arrangements with the landowner.  Mr Ho similarly testified that the cheque was made payable to D1 because D1 said the landowner authorized him to collect the money.  D1 signed on the Provisional Agreement for Sale and Purchase and a copy of the cheque to acknowledge receipt of the deposit (see exhibit P4).    

19.  Mr Wong said the main reason the cheque was post-dated one day was because he needed to transfer money into the account. Mr Wong also had reservations about the lack of the signature of the landowner.  In cross-examination Mr Wong agreed that when he was about to pay the deposit D2 reminded him to pay attention as to whether the owner signed and not to transfer the money until he had signed. Mr Ho said the cheque was post-dated because the vendor had not yet signed.  The next day D2 gave Mr Ho the pink copy of the Provisional Agreement for Sale and Purchase (exhibit P2) by which time the signatures “Suen” purporting to be that of Mr Suen (PW3) had been appended.  The cheque was subsequently cleared (see paragraphs 13-16 of the bankers’ affirmation, exhibit P31 as read with exhibits P16, 17 & 19).   

20.  Completion was set for the 30 April 2011 however completion did not take place.  Mr Wong contacted D1 who gave many different excuses for failing to complete.  D2 was also contacted who gave similar excuses such as there were some internal discussions which meant the sale could not be completed on time.  In cross-examination Mr Wong agreed that mention had been made that Mr Suen had some disputes with his brothers and sisters over the land and that was why the deal had to be on hold.   

21.  Mr Ho handled the matter of compensation payable for failure to complete.  In the course of pursuing this matter D1 gave Mr Ho an undertaking to refund the deposit and pay $500,000 compensation (see exhibit P5).  Three cheques were given by D1 the first of which was dishonoured.  Mr Ho then arranged a meeting with D1 at which D1 gave Mr Ho $300,000 in cash and said the other two cheques could be presented.  When the second cheque was also dishonoured Mr Ho referred the matter to solicitors.  Subsequently agreement was reached through a middleman, who Mr Ho did not know, whereby a further sum of $350,000 cash was paid. 

22.  In cross-examination Mr Ho agreed that the total sum of $650,000 was negotiated by someone other than D1 and that the dealings were concluded upon mutual agreement when he signed a settlement (exhibit D1).  In re-examination Mr Ho said that the payment of $300,000 was given to him as a result of negotiation directly with D1 and that the payment of $350,000 was given to him as a result of negotiation with someone else who was introduced to him by Wong Cheung Hon (whose name appears on exhibit D1) but whose name Mr Ho did not know.  

23.  When asked by Mr Mitchell how the sum of $350,000 was arrived at Mr Ho replied:

“That representative, that is that person, told me during the meeting that ‘he’ was not able to afford the compensation and a suggestion of $150,000 compensation was made.”

Mr Wong and Mr Ho agreed to accept this sum (which added to the return of the deposit totalled $650,000). Mr Mitchell then clarified who was ‘he’ who could not afford the compensation. Mr Ho replied:

“The person he represented.”

After the court explained to Mr Ho he was being asked who is that ‘he’ who can’t afford to pay Mr Ho replied Mr Liu (D1). In answer to the court Mr Ho said he only met this person once during which time he paid the balance of $350,000 to Mr Ho.

24.  Mr Wong and Mr Ho never in fact met Mr Suen.  In cross-examination Mr Ho said he had never heard of someone called Mr Kong Sin Tit (Mr Wong was not asked about this person).  Believing that D1 was authorised to sell the five lots Mr Wong and Mr Ho agreed to purchase the five lots and paid the deposit of $500,000.  If Mr Wong and Mr Ho had known that D1 had not been authorised by Mr Suen to sell the five lots they would not have agreed to purchase the five lots; sign the Provisional Agreement for Sale and Purchase; pay the deposit and sign the agreement to pay a consultant fee to D1.     

Authorisation for sale

25.  As already seen Mr Wong and Mr Ho relied on the authorisation, (exhibit P1) given to them by D1 which purportedly authorised D1 to sell the five lots.  The authorisation to sell the five lots appears in the section headed remarks.  The prosecution case is that Mr Suen never signed an authorisation with the remarks completed whereas the case of D1 is that when Mr Kong Sin Tit gave the authorisation to him the remarks were already typed in.  Key issues to determine therefore are whether Mr Suen signed an authorisation with the remarks completed thereby authorising D1 to sell the five lots; and if he did not whether the prosecution have proved that D1 and D2 knew Mr Suen did not authorise the sale and thereby committed the fraud particularised in the charge.

26.  I will first summarise the evidence of Mr Suen followed by a summary of the evidence of D1.

Mr Suen Fu Wai (PW3)

27.  In 1964 Mr Suen’s uncle transferred two-thirds share of the six lots to Mr Suen’s father Mr Suen Kwai Lin and one-third share to another uncle.  In 1967 the father passed away without leaving a will.  No letters of administration were taken out at that time. 

28.  Sometime in 2008/2009 after Mr Suen heard his cousins wanted to occupy the two-thirds share of the five lots inherited by his family he started succession procedures, first approaching Ko & Chow solicitors to handle succession of the six lots.  Mr Suen said he had been referred to Ko & Chow by an estate agent called Mr Man. 

29.  Ko & Chow having made no progressMr Kong Sin Tit, an ex-sergeant with the Hong Kong Police and an old friend of Mr Suen, suggested that D1 who was an indigenous inhabitant could help Mr Suen in relation to the inheritance of his father’s land.  Mr Suen had been introduced to D1 by Mr Kong sometime in 2008 after which the three of them became friends, drinking tea and playing mah-jong together.  Sadly since these events Mr Kong has passed away.  In evidence Mr Kong was referred to as either Mr Kong or “Tit Gor” (“Brother Tit”).  I will from now on refer to Mr Kong as “Tit Gor” which was how Mr Suen said he greeted Mr Kong. 

30.  Mr Suen agreed with the suggestion and authorised D1 to help with the succession of title of the six lots.  D1 introduced Mr Suen to Yap & Lam solicitors sometime in 2010 some two years after he had approached Ko & Chow.  Yap & Lam successfully obtained the Letters of Administration which were granted to Mr Suen on the 3 December 2010 (see exhibit P30). 

31.  With the assistance of D1 Mr Suen then pursued compensation in respect of Lot No. 752. Mr Suen wrote a letter (exhibit P8) dated the 10 December 2010 to the District Lands Office, North claiming compensation and also signed an undated authorisation (exhibit P6) authorising D1 to handle Lot No. 752.  In answer to the court Mr Suen said that it was D1 who gave him the authorisation to sign.

32.  When Mr Suen signed exhibit P6 there was nothing under remarks.  Mr Suen said he signed many copies of the same authorisation.  In answer to the court Mr Suen said that he signed five to six copies which he gave to D1 and that all the copies were the same.  Mr Suen explained that he signed them to facilitate the procedural matters such as making applications as well as applying for things to be done in relation to the property and for authorisation.  In answer to Mr Mitchell in questions arising Mr Suen said that it was D1 who said that it was necessary to have five or six copies and explained that applying for things to be done in relation to the property referred to following up the matter in relation to compensation from the Land Office.  

33.  On the 3 April 2011 Mr Suen signed an acceptance letter (exhibit P9) accepting compensation in respect of Lot No. 752 in the sum of $118,804.40.  D1 signed the acceptance letter as a witness.

Authorisation (exhibit P7)

34.  Before Tit Gor passed away he showed Mr Suen an original signed authorisation (exhibit P7) in which the remarks are completed (as in exhibit P1) purporting to authorise D1 to sell the five lots.  Mr Suen said this was 2-3 years ago but could not remember the exact details.

35.  Mr Suen said the signature was his and that he wrote his own identity card number however when he signed exhibit P7 the remarks section was blank.  Mr Suen said that he never authorised D1 to sell the five lots.  In cross-examination when Mr Wong put that exhibits P6 & P7 were signed on the same day Mr Suen pointing to the remarks on exhibit P7 replied:

“Probably signed on the same day but without this.”

Mr Suen disagreed the remarks were there when he signed exhibit P7.

36.  Tit Gor told Mr Suen that the remarks were forged and that he had already punished D1 by beating him up with several punches.  Mr Suen therefore did not take any action on being shown exhibit P7.  In cross-examination Mr Suen said he was surprised by what Tit Gor told him and confirmed that he was not the one who reported the matter to the ICAC.

37.  Mr Suen never signed the Provisional Agreement for Sale and Purchase (exhibit P2); the signature “Suen” seen on the agreement is not his signature; he was never given a copy of the agreement or made aware of the existence of the agreement by either D1 or D2and was never told the five lots were to be sold with a completion date on or before the 30 April 2011.  Mr Suen never received the deposit; was never asked to refund the deposit or make compensation in the total sum of $1 million (see clause 8 of the Provisional Agreement for Sale and Purchase); was never asked to pay the sums of $300,000 or $350,000 for failing to complete the transaction; and did not pay or authorise anyone to pay these sums.  Mr Suen did not know Mr Wong or Mr Ho or Power Place and never agreed to sell the five lots to them.

38.  During meetings with D1 Mr Suen seldom discussed the five lots.  D1 did however ask whether the five lots were for sale.  Mr Suen told D1 that he needed to discuss with his many siblings and said that if the price was right they would sell the five lots.  Mr Suen explained that it would be quite difficult to consult with his siblings which difficulty he made known to D1.  Mr Suen said if the price was right and there was a sale he would definitely let D1 handle the sale.  Mr Suen however was never told of a price for the sale of the five lots and never authorised D1 to proceed or make arrangements for the sale of the five lots. 

D2

39.  Mr Suen said D2 probably was not present when D1 asked if the land was for sale. Mr Suen was not very familiar with D2, who he knew as Ah Lam and had come to know when they were sitting together having tea.  Mr Suen said he did not know D2 was an estate agent.  In cross-examination Mr Suen said he first met D2 around 2009 at a time when D1 and Tit Gor were also present.

40.  Mr Suen had not heard of Uni-Power and did not instruct D2 or Uni-Power to act as estate agent in the sale of the five lots; did not enter into any agency agreement with Uni-Power and was never asked to pay $100,000 to Uni-Power for failing to complete (see clause 10(a) of the Provisional Agreement for Sale and Purchase). Further Mr Suen said the question of the sale of the five lots did not arise in conversations with D2; D2 did not ask him if the five lots were for sale and he did not tell D2 the land was for sale. 

41.  In further cross-examination Mr Lam referred Mr Suen to paragraph 13 of his witness statement made to the ICAC on the 1 March 2013 in which he said:

“Ah Lam (D2) has suggested me to sell the remaining five pieces of land at Man Kam To. I immediately rejected his suggestion. Afterwards, Ah Lam did not persuade me to sell those land any further.”

42.  In answer to Mr Mitchell in further re-examination Mr Suen said D1 was also present when D2 suggested Mr Suen sell the five lots. Mr Mitchell also asked Mr Suen to read the whole sentence referred to by Mr Lam.  This commenced:

“In December 2010, not long after I had obtained the right of administration Ah Lam has suggested..…”

Mr Suen confirmed he said this to the ICAC and that he recalled the incident during which he immediately turned down D2’s suggestion.

Defence evidence

43.  D1 an indigenous inhabitant testified that he specialised in dealing with matters of land in the New Territories for indigenous inhabitants and their relatives. 

44.  Tit Gor introduced D1 to Mr Suen after which they became good friends, meeting frequently to drink tea, play mah-jong and have meals together.  D1 had known Mr Suen for about 6 years during which time they had no disputes.  D1 trusted Tit Gor who he had known for 20 years and who he called his ‘godfather’.  D1 had no disputes with Tit Gor and at no time did Tit Gor assault him.

45.  One day in 2008 Tit Gor called D1 out for tea to ask about matters relating to the sale and purchase of land in the New Territories.  The meeting took place at a Chinese restaurant in Ho Man Tin near where Mr Suen had his watch shop.  Mr Suen also attended the meeting.  Tit Gor explained that Mr Suen had entrusted an estate agent to deal with the succession of the six lots but the estate agent had been unable to do that.  Tit Gor therefore asked D1 to help Mr Suen.  D1 said this was probably the first time he met Mr Suen. 

D2

46.  D1 has known D2 for 10 odd years during which time they had business dealings in connection with “Ding” houses in the New Territories.  D1 knew that D2 worked for an estate agency called Man Po Kui and later, around 2010 changed to work for Uni-Power.  There were occasions when D1, D2, Tit Gor and Mr Suen would meet at Chinese restaurants and drink tea and play mah-jong together.  During one of these meetings mention was made by both Tit Gor and Mr Suen that the five lots of land would be sold after succession was completed. 

47.  In answer to the court when seeking clarification on the sequence of events D1 said that both he and D2 had met Mr Suen before the meeting where Mr Suen mentioned to them that the five lots would be sold after succession was completed.  D1 said this meeting should have been at the end of 2009.  D1 clarified that at the first meeting with Mr Suen in 2008 mention was made that if his then solicitors Ko & Chow and the Estate Agent Man Po Kui were able to complete the succession he would let them sell the five lots.  D1 only became actively involved in August or September 2009.

48.  D1 testified that Mr Suen instructed him topursue compensation from the Government for Lot No. 752; take care of succession and after that was done see if the five lots could be sold.  Tit Gor being a good friend of Mr Suen was also able to represent Mr Suen in dealing with matters of the land because Mr Suen did not know about these matters.  Mr Suen said if there was any problem he could just ask Tit Gor who could make decisions.

Authorisations

49.  D1 was given a total of three letters of authorisation.  One for the compensation; one for the succession and one for approaching purchasers in buying the five lots.

50.  D1 explained to Mr Suen that he needed an authorisation to pursue the compensation with the Government.  Mr Suen therefore gave the authorisation (exhibit P6) to D1 in September 2009.  D1 assisted Mr Suen in obtaining compensation from the Government and in April 2011 signed as a witness the letter of acceptance (exhibit P9).  D1 says he met Mr Suen about three to five times after this.

Sale of the five lots

51.  After the Letters of Administration were granted in December 2010 Tit Gor told D1 that he could deal with matters relating to the sale of the five lots.  The authorisation to sell the five lots (exhibit P1)was given to D1 by Tit Gor in late December 2010.  Mr Suen was not present when Tit Gor gave D1 the authorisation.  D1 said he did not compile the letter of authorisation. 

17 January 2011

52.  A meeting was held on the 17 January 2011 when the Provisional Agreement for Sale and Purchase (exhibit P2) was signed.  D1 met Mr Wong (PW1) probably 3-4 times and Mr Ho (PW2) once or twice prior to this meeting to discuss the sale; the price and the consultant fee.  In cross-examination D1 said D2 in his capacity as a sales person of an estate agent introduced him to Mr Wong saying he (D1) was in the course of dealing with the administration matters for Mr Suen and that after that was done Mr Suen would let them find a purchaser for the land.  After obtaining the letters of administration Mr Wong was told that D1 had authority to sell the five lots for Mr Suen. 

53.  D1 signed the agreement as representative of the landowner.  Before signing D1 showed Mr Wong and Mr Ho the authorisation letter (exhibit P1).  Mr Wong and Mr Ho telephoned their lawyer and on being told the letter of authorisation and having D1 as the representative was acceptable Mr Wong signed the agreement. 

54.  The price of $5.2 million was agreed after negotiation as was the deposit in the sum of $500,000.  Mr Wong and Mr Ho first told D1 and D2 the price they had in mind.  As this was similar to the market price D1 telephoned Tit Gor telling him of the price following which agreement was reached.  Tit Gor said since D1 had signed as agent for Mr Suen the cheque for the deposit was to be made payable to D1.  Mr Wong and Mr Ho did not object however D2 did suggest because the landowner was still required to sign that the cheque should be post-dated.

55.  In the afternoon D1 called Tit Gor telling him the agreement had been signed and the cheque received.  On being told by D1 that the signature of Mr Suen was required Tit Gor said he would arrange for Mr Suen to sign the agreement.  D1 therefore took the agreement to Tit Gor.  In the evening Tit Gor called saying Mr Suen had signed the agreement and asked D1 out for dinner.  D1 called D2 saying the agreement had been signed by Mr Suen and asked D2 to join him for dinner with Tit Gor.  During the dinner Tit Gor gave the agreement to D2.  

18 January 2011

56.  The next day D1 informed Tit Gor the deposit cheque had been cleared.  Tit Gor said to withdraw $450,000 to give to him and he would handle the matter with Mr Suen.  $20,000 of the remaining $50,000 was reimbursement of solicitors fees (Yap & Lam) which D1 had paid in advance in cash.  D1 produced the original solicitors receipt (exhibit D2) given to him on payment of the fees.  In cross-examination D1 said he never received a cheque from Mr Suen for payment of the solicitor’s fees. 

57.  The remaining $30,000 was for D1’s travel expenses or wages incurred in working for Mr Suen and doing follow up action over the past year and a half.  In cross-examination D1 said that he did not ask Mr Suen if he could keep the $30,000 because Tit Gor had already said the money was for travel expenses and wages for working over one year or so. 

Completion

58.  Completion was scheduled for the 30 April however because Mr Suen was unable to reach agreement with his younger brothers no completion took place.  D1 told Tit Gor about this and asked Tit Gor to ask Mr Suen to try his best to see if the matter could be settled.  In answer to the court seeking clarification of where he learnt about this reason for failing to complete D1 replied he was told by Tit Gor and also during a tea gathering in March he heard Mr Suen tell Tit Gor.  When the court pointed out this was different to what he had told his counsel (the audio of his reply being replayed in court) D1 explained that what he meant by he told Tit Gor was that he told Tit Gor to ask Mr Suen to try his best to settle the matter with his brothers. 

59.  The matter was not settled.  D1 signed an undertaking (exhibit P5) agreeing to refund the deposit and pay $500,000 compensation.  Although D1 issued three post-dated cheques totalling $1 million he was not personally responsible to repay.  Tit Gor was to pay D1 having previously given Tit Gor the $450,000.   

60.  The first cheque for $400,000 was dishonoured because Tit Gor did not transfer the money to D1’s bank account.  D1 therefore spoke to Tit Gor who said to tell Mr Ho he would be given $300,000 in cash.  D1 duly gave Mr Ho $300,000 in cash which in cross-examination D1 said had been given to him by Tit Gor.

61.  D1 was not involved in the further negotiations because Tit Gor found someone else to discuss this with Mr Ho.  Tit Gor subsequently told D1 about the settlement with D1 only becoming aware of the existence of the settlement (exhibit D1)after the 15 September 2011.  D1 did not sign on this settlement because he was not involved in the negotiations nor did he know the others named in the settlement. Afterwards D1 says he met Mr Suen for tea on Tit Gor’s birthday.  

62.  D1 did not know Mr Suen had not authorised the sale to Power Place and had no suspicion the authorisation was not genuine because Tit Gor was his godfather and had been friends for many years with Mr Suen; Mr Suen would ask Tit Gor for assistance whenever there was any problem; Mr Suen had promised to let Tit Gor make the decisions; and Mr Suen had told D1 that after succession he could proceed with the sale of the five lots for him.

Consideration of the evidence

63.  I have carefully considered all the evidence and the written and oral submissions and further submissions of Mr Mitchell, Mr Wong and Mr Lam (marked B, C and D respectively) made on the 26 March and the 5 May.  Unless otherwise stated I accept the evidence of the prosecution witnesses.

64.  I have no hesitation in rejecting D1’s evidence.  I do not find his evidence credible.  For example I do not find credible the authorisation (exhibit P6) was given to D1 by Mr Suen.  Exhibit P6 has the identity card number of D1 typed in whereas the identity card number of Mr Suen is handwritten.  When this was pointed out to D1 in cross-examination D1 said Tit Gor should have prepared the authorisation and given it to Mr Suen.  Asked if he was suggesting Tit Gor knew his identity card number but not that of Mr Suen D1 replied that Tit Gor knew his identity card number but he had no idea whether Tit Gor also knew Mr Suen’s identity card number.  I find inherently improbable if Mr Suen gave the authorisation to D1 that only D1’s identity card would be typed in.  I accept the evidence of Mr Suen in answer to the court that the authorisation (exhibit P6) was given to him to sign by D1.  

65.  This is one of many examples where D1 seeks to pass the responsibility for what happened to Tit Gor.  As pertinently put by Mr Mitchell (who refers to Tit Gor as Kong):

“...whenever there was a question the answer to which D1 perceived could implicate him in fraudulent activity he responded by saying the action concern was either done by Kong or on the instructions of Kong”

(see paragraphs 82 & 125 of Mr Mitchell’s written submission).

66.  Another example is D1’s evidence that the deposit cheque was made payable to him on the instructions of Tit Gor.  I do not find this evidence credible.  D1 said that Mr Wong and Mr Ho rang their solicitor to ask whether the authorisation was acceptable and that they did not object to the cheque being in D1’s name (matters which I note were not put to Mr Wong or Mr Ho).  I accept the evidence of Mr Wong and Mr Ho that they asked why the cheque was not made payable to the landowner and were told by D1 that he was authorized to collect the money and that he would make arrangements with the landowner.   

67.  I do not find credible the evidence that the signature of Mr Suen on the Provisional Agreement for Sale and Purchase (exhibit P2) was obtained by Tit Gor.  The agreement is a document of Uni-Power, who are stated to be the Agent/Third Party and whose name, address and licence number are pre-printed on the agreement. Clause 1 of the agreement states that the sale and purchase is to be through the Agent.  The responsibility to complete the agreement and ensure the signatures are those of the parties is that of the Agent.  I reject the agreement was given to Tit Gor.  This is yet another example where the responsibility for what happened is laid at the hands of the deceased Tit Gor. In addition as pointed out by Mr Mitchell if the agreement was a genuine agreement with the consent of Mr Suen then there would have been no need to forge Mr Suen’s signature (see paragraph 130 of Mr Mitchell’s written closing submission). 

68.  I find inherently improbable that if Mr Suen authorised D1 to sell the five lots and authorised the sale to Power Place that D1 did not update Mr Suen when witnessing the signing of the letter of acceptance of compensation (exhibit P9) on the 3 April 2011, which was after the signing of the agreement and before completion. I do not find credible D1’s evidence that after signing exhibit P9 he again met Mr Suen both before and after completion yet still did not update Mr Suen on the sale of the five lots or ask him about his dispute with his brothers.  If Mr Suen had authorised D1 to sell the five lots and authorised the sale to Power Place one of the first things you would expect to be discussed when they met was the progress of the sale. 

69.   I find inherently improbable that D1 would agree to sign an undertaking (exhibit P5) to pay $1 million compensation and issue three post-dated cheques totalling $1 million when he was not personally liable to pay compensation.  This is another example of where D1 seeks to pass the responsibility to Tit Gor saying Tit Gor was responsible to pay; the first cheque bounced because Tit Gor failed to transfer the money to his bank account; and Tit Gor provided the initial $300,000 to give to Mr Ho. 

70.  In reaching this finding I have taken into account that there was a subsequent agreement (exhibit D1) whereby Mr Wong and Mr Ho agreed to accept the reduced sum of $650,000, which agreement Mr Ho said was negotiated by an unknown person and not D1.  Although the subsequent agreement does not bear D1’s signature D1 was clearly intended to be a party to the agreement as his name appears on the agreement.  This is consistent with Mr Ho’s evidence in re-examination that the unknown person was representing D1 (see paragraphs 22 & 23).  The fact the subsequent agreement was not negotiated by D1 does not cause me to doubt the findings I have made.

71.  In considering D1’s evidence I have also taken into account the evidence of the defence witnesses, Mr Yap Yan Wing Stephen Reed (DW1), a partner of Yap & Lam, Solicitors and the secretary Miss Cheung Lai Ching (DW2).  I am satisfied nothing said by Mr Yap or Miss Cheung supports the evidence ofD1 that Mr Suen had authorised him to proceed to sale of the five lots.  I will consider the evidence of Mr Yap and Miss Cheung in more detail a little later.

72.  I remind myself that the rejection of D1’s evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

Did Mr Suen sign an authorisation with the remarks typed in authorising D1 to handle the sale of the five lots?

73.  This involves consideration of whether the copy authorisation (exhibit P1) given by D1 to Mr Wong and Mr Ho is in fact a photocopy of the authorisation (exhibit P7) given to Mr Suen by Tit Gor. 

74.  Mr Suen’s evidence is very clear that when he signed the authorisation (exhibit P7) the remarks were blank.  The evidence of Mr Suen does not stand alone for the exhibits themselves lend support to the testimony of Mr Suen.  At first sight exhibit P1 would appear to be a photocopy of exhibit P7.  Save for the date the content of exhibits P1 and P7 are the same.  Mr Suen’s signature and handwritten identity card number appear to be the same and in the same position on both exhibits P1 and P7.  For example see the letter B and the number 2 in the bracket of the identity card number and the third character of the signature. 

75.  A closer examination however reveals that the positioning of the typed remarks is different.  In exhibit P7 the remarks in Chinese sit on the line and in English just above the line whereas on exhibit P1 there is a distinct spacing between the typed remarks in both Chinese and English and the line beneath.  Also the spacing from the colon to the beginning of the typed remarks is fractionally shorter on exhibit P1 however this is not as distinct as the spacing under the typed remarks. 

76.  The position of the typed Chinese and English in the remainder of exhibit P7 is the same as for the typed remarks namely the Chinese sitting on the line and the English just above the line.  In exhibit P1, except for the typed remarks, the typed Chinese also sits on the line and the typed English just above the line. 

77.  I am satisfied so I am sure the only inference to draw is that exhibit P7 was photocopied after Mr Suen signed but before the typing of the remarks.  The remarks were then typed separately on both exhibit P7 and the photocopy.  If Mr Suen had signed exhibit P7 after the remarks had been typed the photocopy should have the typed remarks in Chinese sitting on the line and in English just above the line and not show a distinct spacing as in exhibit P1 given to Mr Wong and Mr Ho.

78.  This supports Mr Suen’s evidence that when he signed exhibit P7 there were no remarks typed in.  The format of the typed words in Chinese sitting on the line or in English just above the line can also be seen in exhibit P6.  P6 also bears Mr Suen’s signature and handwritten identity card number which are clearly originals and different to the ones on exhibit P7.  This in my view also supports Mr Suen’s evidence he was asked to sign five to six copies of the authorisation at the same time.  

79.  In addition exhibit P1, in my view, whilst reciting all the six lots specifically relates to the resumed land Lot No. 752.  I find inherently improbable that if Mr Suen had authorised D1 to sell the five lots that this would simply be added by way of remarks to an authorisation to handle the lot resumed by the government as opposed to a specific authorisation relating to the sale of the five lots.   

80.  Having carefully considered all the evidence I find I am satisfied so I am sure that Mr Suen is telling the truth when he says that the remarks section was blank when he signed the authorisation, exhibit P7. 

Did Mr Suen authorise the sale of the five lots to Power Place?

81.  Mr Suen testified not only did he not sign the authorisation with the remarks completed but also did not authorise the sale of the five lots to Power Place; did not know of the sale to Power Place, not even the price and never signed on the Provisional Agreement for Sale and Purchase (exhibit P2). 

82.  If Mr Suen had authorised D1 to sell the five lots I find inherently improbable he was not told about the sale to Power Place by either D1 or D2.  Similarly if Mr Suen had authorised D1 to sell the five lots I find inherently improbable his signature needed to be forged on the Provisional Agreement for Sale and Purchase.  I am satisfied so I am sure the only inference to draw is that Mr Suen was not told about the sale and his signature forged because he did not authorise D1 to sell the five lots and did not authorise the sale to Power Place.  Similarly the deposit cheque was not made payable to Mr Suen and Mr Suen was not requested to pay compensation on failing to complete because he did not authorise D1 to sell the five lots and did not authorise the sale to Power Place. 

83.  Having carefully considered all the evidence I find I am satisfied so I am sure Mr Suen is telling the truth about these matters.  I accept his evidence that he did not authorise D1 to sell the five lots and did not authorise the sale to Power Place.   

84.  In considering Mr Suen’s evidence I have carefully considered the submission of Mr Wong that Mr Suen was evasive, untruthful and forgetful (see paragraph 49 of Mr Wong’s skeleton final submission).  Mr Wong principally relies here on differences in Mr Suen’s evidence and that contained in his witness statement made to the ICAC on the 7 January 2013 relating to whether his cousins had approached him and discussed about the sale of the land.

85.  Mr Wong first put to Mr Suen that he had told the ICAC that his cousins wanted to sell the pieces of land a few years ago.  Mr Suen disagreed he had said this to the ICAC whereupon Mr Wong repeated the question.  Mr Suen again disagreed. This time Mr Wong asked Mr Suen to read his statement to refresh his memory. After Mr Suen had read paragraph 2 of the statement Mr Wong repeated his question.  Mr Suen replied that he had no contact with them.   

86.  Mr Wong then asked Mr Suen to read out paragraph 2 of the statement which reads as follows: 

“Subsequently, about several years ago, I cannot remember the exact year, the five sons of my eldest paternal uncle wanted to sell the above remaining five pieces of land. However, since my late father still hold two-thirds of the title of the above five pieces of land, so they approached me and my other siblings for discussion. And I therefore intended to start dealing with land succession matters of my father.”

87.  Mr Suen agreed that this was the truth and went on to explain that he started succession procedures because he heard that his cousins wanted to occupy the two-thirds share of the five lots inherited by his family.  Later when cross-examined by Mr Lam who asked whether Tit Gor told him about this Mr Suen replied no and explained that in the past the application to take over the land by his cousins had been gazetted but their application was not successful therefore together with his siblings he started succession procedures.  Mr Suen did however tell Tit Gor about this. 

88.  In re-examination Mr Suen further explained that his paternal cousin approached his younger brother who then told him about his paternal cousin’s intention to sell the land as well as to take title of the land.  Mr Suen said the only contact he had with his cousin was through his younger brother.     

89.  In my view these difference are more apparent than real and not material.  Whether or not Mr Suen was directly told of the cousin’s intention the fact of what happened some years ago resulting in Mr Suen commencing succession procedures does not in any way cause me to doubt Mr Suen’s evidence that he did not authorise D1 to sell the five lots and did not authorise the sale to Power Place.   

90.  In making this submission Mr Wong also refers to the evidence of Mr Yap Yan Wing Stephen Reed (DW1) and submits that Mr Suen’s evidence is inconsistent with that of Mr Yap.  I will deal with Mr Yap’s evidence shortly suffice to say at this stage I find nothing in Mr Yap’s evidence which is inconsistent with the evidence of Mr Suen.     

91.  I have also considered the evidence in cross-examination of Mr Li Tak Cheung (PW5) manager of the complaints section of the Estates Agents Authority that with agreement of the vendor the deposit can be paid to a third party (see paragraph 5 of Mr Wong’s skeleton final submission).  There was no agreement by Mr Suen that D1 was to receive the deposit.  Mr Suen did not know about the agreement or the deposit.  The evidence of Mr Li does not cause me to doubt Mr Suen’s evidence that he did not authorise D1 to sell the five lots and did not authorise the sale to Power Place. 

Verdict

Did D1 and D2 know Mr Suen did not authorise the sale?

D1

92.  In my view most significant is that Mr Suen was not informed of the sale to Power Place, not even the price, by either D1 or D2 and that the letter of authorisation (exhibit P1) given by D1 to Mr Wong and Mr Ho did not have the remarks typed in when Mr Suen signed.  Taking these matters into account together with the fact that the deposit cheque was made payable to D1; and that the undertaking for compensation (exhibit P5) was signed by D1 who then issued three post-dated cheques and paid the sum of $300,000 to Mr Ho when if he was authorised to sell the five lots he would not be personally liable for these sums, I am satisfied so I am sure the only inference to draw is that when entering into the agreement with Mr Wong and Mr Ho for the sale of the five lots D1 knew Mr Suen did not authorise him to sell the five lots. 

93.  Applying the test in R v Ghosh [1982] 1 QB 1053 I am satisfied so I am sure by falsely representing to Mr Wong and Mr Ho that the five lots were for sale and that he was authorised to deal with the sale of the five lots D1 was acting dishonestly.  I am satisfied so I am sure D1 by deceit and with intent to defraud induced Mr Wong to issue to him the deposit cheque in the sum of $500,000, which resulted in both benefit to D1 and a risk of substantial prejudice to Mr Wong and Mr Ho (see paragraph 3 of Mr Mitchell’s closing submission on prejudice). 

D2

94.  D2 is a licensed sales person.  Mr Li Tak Cheung (PW5) manager of the complaints section of the Estates Agents Authority explained that licensed sales persons must comply with the provisions of the Estate Agents Ordinance, Chapter 511 and its subsidiary legislation including the Practice Regulations (511C) together with a published Code of Ethics and Guide to Estates Agents Ordinance (exhibit P33A-C) and circulars issued by the Estates Agents Authority. 

95.  Specific reference was made to paragraphs 3.3, 3.4 and 3.5 of the Code of Ethics which cover professional knowledge and competence; ethical and moral standard during practice and responsibilities; and exercising due diligence. 

96.  Reference was also made to a circular (exhibit P34) and press release (exhibit P35) issued in November 2009 in response to a news report where a man was jailed for impersonating a flat owner.  The circular stated matters to be complied with when verifying the identity of vendors, including entering into an estate agency agreement with the vendor; recording the number of the vendor’s identity card and ensuring the identity of the vendor and owner are the same.

97.  The estate agency agreement between the vendor and the agent is a separate agreement to the Provisional Agreement for Sale and Purchase and should be entered into first.  The estate agency agreement will deal with the commission payable by the vendor.  Mr Li explained that these requirements applied only to residential property and that for the sale of land there was no prescribed form of agreement and no provision in the ordinance requiring such an agreement to be entered into.  In Mr Li’s experience for the sale of non residential property he had seen the agreement for commission contained within the Provisional Agreement for Sale and Purchase thereby making the agreement a three party agreement.  As noted earlier the Provisional Agreement for Sale and Purchase, exhibit P2, is such a three party agreement with Uni-Power being the third-party/Agent.

98.  Mr Mitchell in his closing submission relies on the failure of D2 to follow any of these requirements, in particular as to verification of the identity of the vendor (see paragraphs 135, 142 & 143).  Mr Lam on the other hand submits the requirements apply to residential property only and even if D2 has breached any code at the highest he has only been careless there being no evidence to show he was dishonest (see page 2 of Mr Lam’s final submission).  Whilst many of the requirements of the Ordinance and Regulations relate to residential property Mr Li said it was regarded as good practice that these requirements were also followed in the case of the sale of land.  In my view the requirements are common sense and would be necessary in most cases whether for the sale of residential property or land. 

99.  In my view, as in the case of D1, what is significant is the fact that neither D1 nor D2 contacted Mr Suen about the sale.  Mr Suen did not even know of the price or of the existence of the Provisional Agreement for Sale and Purchase.  Had D2 as the sales person of the estate agent Uni-Power contacted Mr Suen to confirm the instructions to sell he would have found out Mr Suen had not authorised D1 to handle the sale of the five lots and had not authorised a sale to Power Place.

100.  If this was a genuine sale there is no reason whatsoever for D2 not contacting Mr Suen.  The failure to contact Mr Suen is made all the more surprising considering in December 2010 Mr Suen had immediately rejected D2’s suggestion he sell the five lots (see paragraphs 41 & 42).  I am satisfied so I am sure the only inference to draw from D2 not contacting Mr Suen to inform him of the sale is because D2 knew Mr Suen had not authorised D1 to sell the five lots and had not authorised the sale to Power Place.  

101.  Similarly if this was a genuine sale there is no reason why Mr Suen was not asked as provided by clause 10(a) of the Provisional Agreement for Sale and Purchase to pay Uni-Power$100,000 compensation for failing to complete.  The only inference to draw from D2 not asking Mr Suen to pay compensation for failing to complete is because D2 knew Mr Suen had not authorised D1 to sell the five lots and had not authorised the sale to Power Place. 

102.  Having introduced D1 to Mr Wong and Mr Ho as the agent of the landowner and acting as the sales person of Uni-Power in the sale knowing Mr Suen had not authorised D1 to sell the five lots and had not authorised the sale to Power Place I am satisfied so I am sure D2 thereby falsely represented to Mr Wong and Mr Ho that the five lots were for sale and that D1 was authorised to deal with the sale. 

103.  In reaching this finding I have carefully considered the evidence of Mr Wong that D2 said not to transfer the money for the deposit cheque until Mr Suen had signed the Provisional Agreement for Sale and Purchase.  Mr Ho also said the reason for the post-dated cheque was because the vendor had not yet signed.  In oral submission Mr Lam submits this shows D2’s honesty.  Mr Wong submits that it is contrary to common sense for a joint defendant to say this which would delay and obstruct the common intention to defraud Mr Wong and Mr Ho (see paragraph 46 of Mr Wong’s skeleton final submission). 

104.  Mr Suen never in fact signed the agreement.  The agreement which bears the forged signature of Mr Suen,is a document of Uni-Power(see paragraph 67).D2 acting as the sales person of Uni-Power was responsible for ensuring the agreement was properly signed.  This he patently failed to do.

105.  Also relevant here is the evidence of Mr Li Tak Cheung (PW5) relating to the payment of the deposit.  Whilst again noting the requirements relate to residential property in my view the requirements as to payment of the deposit are equally applicable to the sale of land.  Mr Li testified that except with the agreement of the vendor the deposit should be paid to the vendor in full without deduction.  In cross-examination Mr Li agreed that the deposit could be given to anybody with the agreement of the vendor.  In re-examination Mr Li said he imagined that it would be the case the estate agent should confirm with the vendor the arrangement to pay the deposit to a third party was a valid arrangement.  This again is common sense.

106.  By not contacting Mr Suen about the sale D2 has not witnessed the purported signing of the agreement by the vendor and had not sought any confirmation about the deposit.  If this was a genuine sale there is no reason why D2 did not witness the signing by the vendor.  I am satisfied so I am sure by failing to ensure Mr Suen actually signed the agreement and failing to confirm with Mr Suen the arrangements as to the deposit the only inference to draw is that this was because D2 knew Mr Suen had not authorised D1 to sell the five lots and D1 was therefore not authorised to deal with the deposit.  The fact D2 told Mr Wong to wait until Mr Suen had signed the agreement before transferring funds for the deposit cheque does not cause me to doubt the findings I have made. 

107.  Applying the test in R v Ghosh [1982] 1 QB 1053 I am satisfied so I am sure that D2 was acting dishonestly and thatby deceit and with intent to defraud induced Mr Wong to issue the deposit cheque in the sum of $500,000, which resulted in benefit to D1 and a risk of substantial prejudice to Mr Wong and Mr Ho. 

108.  In reaching this finding I have taken into account that in cross-examination Mr Li Tak Cheung (PW5) confirmed no complaints had been received about D2 and no disciplinary proceedings had been taken against him.  The fact there has been no complaints and no disciplinary proceedings does not cause me to doubt the findings I have made. Nor does the fact that both Mr Wong and Mr Ho confirmed that D2 never said that he had power of attorney representing the owner of the land. 

Evidence that Mr Suen said he would sell the five lots and let D1 handle the sale

109.  Reliance is placed on statements made by Mr Suen that after the administration of the estate was completed he would sell the five lots and let D1 handle the sale (see pages 4 & 5 of Mr Lam’s final submission).

110.  It is necessary for me to set out the exact evidence given by Mr Suen so as to understand the context in which Mr Suen said he would let D1 handle the sale.  The first reference to letting D1 sell the five lots was in evidence-in-chief when Mr Suen was asked whether the question of the sale of the five lots ever arose when he met D1.  The evidence continued as follows:

“A. When we met, probably we seldom talk about it.

Q. Did he ever mention about or ask you whether these five remaining lots of land were for sale?

A. Yes.

Q. And what was your response?

A. As I have many siblings, so I told him I had to discuss the matter with my siblings and that if the price was right, we would sell.

Q. Did you ever authorise him to proceed with the sale or to make the arrangements for the sale of these five lots of land?

A. No.

Q. You just told his Honour that you said that you had to discuss the matter with your numerous siblings and that if the price was right you might consider a sale of ….

After the court corrected that Mr Suen said “We would sell” and not “might consider a sale” the question was completed:

…. .you would sell the land.

A. Yes, might be.

Q. ‘Might be’ or ‘would’, that’s what I wish to ask?

A. He asked me whether it was for sale and I said as I had many brothers and sisters, and you see, the government would resume the land so when the time comes I would authorise him to sell. And when the time comes and if the price is right, I will authorise him. I will definitely let him handle this.

Q. Was there any time thereafter when you were told of a price and then authorised him to handle the sale of the land?

A. No.”

111.  At the end of examination-in-chief Mr Mitchell returned to the evidence of Mr Suen’s willingness to sell if the price was right.  Mr Mitchell asked Mr Suen:

“Q. You mentioned earlier about a willingness to sell the land if the price was right.

A. Yes.

Q. Now, we know that you have many siblings.

A. Yes.

Q. Presumably, you would have to consult with them?

A. Correct.

Q. Would that be an easy process to consult all your siblings and agree a price?

A. I would think it would be quite difficult.

Q. Was your difficulty in that respect made known to either Mr Liu (D1) or Mr Lam (D2)?

A. I seldom had contact with him. Usually I contacted Mr Kong. I told Mr Kong.

Q. Was there ever an occasion you called …when you told Mr Liu?

A. You mean in relation to the sale of the land?

Q. Yes….The difficulties with securing the agreement between your numerous siblings about a price for the sale of the land.

A. I did tell him.

Q. Do you remember in what circumstances you told him this?

A. It was when Mr Liu asked me to sell the land. When he asked me whether I would sell the land that I told him that I had to obtain agreements from my siblings first.

Q. Do you remember whether Mr Lam was present during this conversation?

A. Probably not present. Not present.”

112.  A clear distinction is to be drawn between actually authorising D1 to sell the five lots and promising to let D1 handle the sale after certain conditions had been met, namely if the price was right and the siblings agreed.  I accept Mr Suen’s evidence he would sell the five lots if the price was right and his siblings agreed, which conditions he had made known to D1.  The fact Mr Suen said that he would let D1 handle the sale of the land does not cause me to doubt the findings I have made this being said conditional on the price being right and Mr Suen’s siblings agreeing.  Further I accept Mr Suen’s evidence he was not even told about the price of the purchase of the five lots by Power Place and was therefore not in a position to consider whether the price was right and to seek his siblings agreement.

113.  In addition Mr Lam also refers to Mr Suen’s evidence in cross-examination that his younger brother knew the estate agent Mr Man as showing his intention to sell (see the bottom of page 4 of Mr Lam’s final submission).  Mr Suen having agreed he knows an estate agent by the name of Mr Man the cross-examination continued as follows:

“Q. Did you not instruct him (Mr Man) to sell this piece of land (the five lots)…?

A. To sell? No.

Q. In that case, why make contact with that Mr Man then, can you tell us?

A. Mr Man knows my younger brother. He has contact with my younger brother and he was introduced to me through my younger brother.

Q. Do you know whether your brother did contact this Mr Man to deal with the property that we just mentioned?

A. He did.”

114.  In re-examination Mr Mitchell asked Mr Suen how he knew his brother had contacted Mr Man to deal with the property.  Mr Suen replied:

“A. My younger brother brought along this estate agent surnamed Man to me.

Q. And what took place at this meeting?

A. The estate agent asked us to sell it to him.

Q. What was your response?

A. The condition was that he had to be able to make a successful transfer of title for me.

Q. What do you mean a successful transfer of title?

A. At that time all I had was a deed only, I had not yet obtained the letters of administration. So I said to him that if he was able to get it done for me, then I would let him handle the whole matter.

Q. Get what done for you?

A. Succession, that is to inherit the estate.”

115.  Mr Suen’s evidence was clear that he did have an intention to sell if the price was right and his siblings agreed.  This meeting with Mr Man was before any involvement of D1 and D2.  The fact Mr Suen had told Mr Man if he could get the succession done he would let him handle the whole matter does not cause me to doubt his evidence that he did not authorise D1 to sell the five lots and did not authorise the sale to Power Place.    

Tit Gor

116.  Although in evidence D1 said he had no suspicion against Tit Gor submissions have been made that there may be something up with Tit Gor in the process (see paragraph 55 of Mr Wong’s skeleton final submission).  Mr Lam in submitting that the evidence of Mr Suen is unreliable asks if there could be a hidden truth, namely Tit Gor and that Tit Gor was the one behind the whole sale of the land (see pages 2 & 7 of Mr Lam’s final submission).

117.  Mr Wong submits Tit Gor played an important and substantial role in all the matters relating to the six lots (see paragraph 56 of Mr Wong’s skeleton final submission).  At paragraph 23 Mr Wong particularises the evidence of Mr Suen relating to the role of Tit Gor including that:

“PW3 had great trust in Tit Gor. He said that everything about the land he left it to Tit Gor. He seldom had contact with D1. He liaised with Tit Gor instead.”

Mr Suen having never specifically said “he left everything about the land to Tit Gor” it is again necessary to set out the evidence given by Mr Suen relating to the role played by Tit Gor.

118.  At the end of evidence-in-chief is the reference to seldom having contact.  I have already set this evidence out at paragraph 111.  In my view the reference to seldom having contact with “him” is to D2 and not D1 as stated by Mr Wong.  The evidence of both Mr Suen and D1 was that they became good friends, meeting frequently to drink tea and play mah-jong together. 

119.  The role of Tit Gor was the subject of cross-examination by Mr Wong.  After questions about whether Mr Suen had given a cheque to Tit Gor for payment of Yap & Lam’s fees (which evidence I consider later) the questioning proceeded as follows:

“Q. In any event, Mr Suen, I put to you that you had great trust in Mr Kong, Tit Gor.

A. Yes.

Q. I put to you, Mr Suen, that all the dealings in relation to the six pieces of land since day one Tit Gor played an important role.

A. Yes.

Q. He gave you advice and he liaised with D1 and some others.

A. Well, I don’t understand.

Q. He gave you advice in relation to the six pieces of land, correct?

A. Yes.

Q. He liaised with D1 on your behalf, agree?

A. Yes.

Q. Sometimes Tit Gor gave you documents to sign.

A. What kind of documents, for example?

Q. Documents concerning the six pieces of land.

Mr Suen pointing to P7 replied:

A. Documents, this?

Q. Sometimes he delivered documents for you.

A. Delivered documents? Probably not.

Q. For example, he delivered documents to D1 on your behalf.

A. Yes, yes, he did.

Q. On many occasions?

A. Not many occasions.

Q. A few occasions.

A. Several.

Q. Sometimes Tit Gor kept documents for you.

A. Kept my documents? No.

Q. For example, exhibit P1, the original of it, Tit Gor kept it for you.

A. No, he gave me this document when we had meal together.”

120.  At the end of further cross-examination by Mr Lam after Mr Suen was questioned about whether D2 had asked him if he would sell the five lots (which evidence is set out at paragraph 41) the cross-examination continued:

“Q. But can you recall at that time was Brother Tit present?

A. He was present.

Q. Now, if you can remember you tell us; if you can’t, just tell us don’t remember. If you’re not sure, you’re not sure. If you don’t know, you don’t know, okay?

A. Understood.

Q. You told both D1 and D2 that regarding the land matter in – to the effect that in the future ask Tit Gor – ask Brother Tit. Do you remember that?

A. Correct.”

121.  I have carefully considered the evidence relating to Tit Gor.  I accept the evidence of Mr Suen that he was never told about the sale of the five lots to Power Place, not even the price.  If this was a genuine sale or believed to be a genuine sale with the consent of Mr Suen then there was absolutely no reason why D1 and D2 did not tell Mr Suen about the sale.  Notwithstanding that Mr Suen trusted Tit Gor and at times Tit Gor liaised with D1 on behalf of Mr Suen; advised Mr Suen and said D1 and D2 could ask Tit Gor regarding the land matter, this evidence does not cause me to doubt the findings I have made. 

122.  In addition I find inherently improbable that if, as implied by the defence, Tit Gor was the fraudster that he would have shown the forged document, exhibit P7 to Mr Suen thereby revealing his fraud.  Equally I find inherently improbable that if Tit Gor instigated the fraud that D1 and D2 were not party to that fraud for Tit Gor could not take the risk that D1 or D2 would contact Mr Suen about the sale thereby also revealing the fraud.  I reject the suggestion that Tit Gor was the fraudster.

Evidence of Mr Yap Yan Wing Stephen Reed (DW1).

123.  Reliance is also placed on the evidence of Mr Yap as showing Mr Suen’s intention to sell the five lots (see paragraphs 41-42 of Mr Wong’s skeleton final submission and page 7 of Mr Lam’s final submission). 

124.  Mr Yap was the handling solicitor when D1 referred Mr Suen to his firm to handle the six lots.  Mr Yap understood the role of D1 to be the person who introduced the client to him and possibly handling the affairs on Mr Suen’s behalf.  D1 accompanied Mr Suen for the purpose of obtaining letters of administration so that the land could be dealt with in some way, such as to sell, assign or a joint venture.  Mr Yap had questioned why a grant of probate had not been taken out for over 40 years.  In answer to the court Mr Yap confirmed he was aware that previous solicitors had been involved in obtaining letters of administration and said that Mr Suen was unhappy with them and therefore D1 introduced him to Mr Suen.

125.  When asked by Mr Wong for D1 if Mr Suen had said how the land was to be dealt with Mr Yap replied that he did not remember exactly and that when D1 brought Mr Suen to his office there was some understanding which came within his knowledge that was why Mr Suen came to apply for letters of administration.

126.  In cross-examination when asked where this understanding came from Mr Yap replied that the understanding first came from D1 and when Mr Suen was brought to his office he explained that letters of administration were necessary if you needed to effect a transfer or sale of the land.  Mr Yap said he could not recall if there was any mention of claiming compensation from the Government.

127.  In re-examination when asked whether in the presence of Mr Suen the topic of sale of the land was ever discussed Mr Yap replied that he could not recall exactly but believed there was some discussion that something had to be dealt with the land and hence the application for letters of administration.  Asked if he ever advised Mr Suen on sale of the land Mr Yap replied not directly and repeated that what he would say is that letters of administration would be required if he wanted to sell, transfer or deal in any way with the estate of his father.

128.  When asked by the court was anything specific said about how the land was to be dealt with or whether he was just trying to give examples Mr Yap replied that he can recall Mr Suen wanted to do something but could not remember whether it was to sell or transfer.  Mr Yap agreed that one of the reasons could be that Mr Suen needed the letters of administration was to obtain compensation from the Government in respect of one of the lots.  In questions arising Mr Yap agreed with Mr Mitchell that he was just giving general advice about why letters of administration were required explaining that this was his duty as a solicitor to explain to his client the purpose of letters of administration.

129.  In my view it is clear from Mr Yap’s evidence that what he understood was that something was to be done with the land whether by way of a sale, an assignment, a joint venture or applying for compensation.  Mr Yap could be no more specific than this.  Even if Mr Yap had an understanding the land was for sale this would still be subject to the conditions imposed by Mr Suen, namely that his siblings agree and the price is right.  The evidence of Mr Yap does not cause me to doubt the findings I have made. 

Payment of the fees of Yap & Lam

130.  The original receipt (exhibit D2) for the payment of the fees of Yap & Lam was produced in court by D1.  The receipt shows the fees were paid by cash in December 2010.  Mr Wong submits the evidence of Mr Suen that he gave a cheque to Tit Gor for the payment of the fees in August 2011 is inconsistent with this evidence and shows either Mr Suen is not telling the truth or there was something up with Tit Gor in the process (see paragraphs 27 & 55 of Mr Wong’s skeleton final submission). 

131.  Mr Suen however never specifically stated what date he gave the cheque to Tit Gor.  In cross-examination Mr Suen disagreed that sometime in August 2011 he gave a blank cheque to Tit Gor for the solicitor’s fees.  When put by Mr Wong this is what he told the ICAC in his second witness statement Mr Suen replied that he paid $19,000 or so not a blank cheque.  Mr Wong then put that he told the ICAC the payee was left blank (not the whole cheque) to which Mr Suen replied probably but he needed to go to the bank to check before he could answer.  In answer to the court Mr Suen said he did give a cheque to Tit Gor to give to the solicitors.  Mr Suen was not however asked when he gave the cheque to Tit Gor.

132.  Mr Yap also gave evidence as to the issuing of the receipt.  On being shown the receipt (exhibit D2) Mr Yap confirmed that payment was made by D1 in cash by handing the money to his handling clerk who would then hand the money to the accounts clerk.  This evidence was hearsay Mr Yap confirming in cross-examination that he was not present when the cash was handed over but that he had verified this with his conveyancing clerk.  Mr Yap’s evidence that the firm was only paid once after the work was completed there being no monies held on account was also hearsay for Mr Yap again relied upon what his conveyancing clerk had told him.  

133.  Miss Cheung Lai Ching (DW2) a secretary with Yap & Lam who issued the receipt testified that the money was handed to her by a colleague and that she did not see who handed the money to her colleague.  

134.  Although Mr Suen did not say when he gave the cheque to Tit Gor if it can be inferred this was in August 2011 then I am satisfied Mr Suen is mistaken as to this date. I note the receipt was not shown to Mr Suen for his comments as to the date of payment the receipt first being shown to the court when produced by D1.  I also note that the receipt says payment received from Suen Fu Wai (PW3) and not D1.

135.  Whether or not it was D1 who physically handed over the money to Yap & Lam the evidence as to the payment of the fees does not cause me to doubt the evidence of Mr Suen that subsequent to the obtaining of the letters of administration he did not authorise D1 to sell the five lots and did not authorise the sale to Power Place.  The fact that D1 was able to produce the original receipt does not cause me to doubt the findings I have made.   

When did Tit Gor show the letter of authorisation, exhibit P7 to Mr Suen?

136.  At paragraph 50 of his written submission Mr Wong refers to the evidence of Mr Suen that Tit Gor showed him exhibit P7 in 2010.  Mr Wong submits that if this is the case it cries out for an explanation why Mr Suen still entrusted D1 to go to the Land Office with him on the 3 April 2011 to collect the compensation for the resumed Lot No. 752.  Equally one might expect that if Mr Suen had been shown exhibit P7 prior to 3 April 2011 that he would have raised this with D1 on that day.

137.  Mr Wong states that Mr Suen also told the ICAC in his first witness statement made on the 7 January 2013 that this was in 2010.  This not being quite accurate I will detail the evidence given by Mr Suen.  In examination-in-chief when asked if he remembered approximately when Tit Gor gave him exhibit P7 Mr Suen replied:

“2 years to 3 years ago. Well 2 years ago but I cannot remember the exact details.”

138.  In cross-examination when asked the same question Mr Suen said he could not recall.  Mr Wong then put that according to his first statement to the ICAC Mr Suen said this was in late 2010 to early 2011.  Asked if he remembered saying that to the ICAC Mr Suen replied:

“I have to think, 2010. I probably had said so.”

Pointing at the remarks on exhibit P7 Mr Suen continued his answer and said:

“It was around that time, 2010, that this was discovered.”

Asked by Mr Wong if his best recollection was sometime in 2010 Mr Suen replied around that time.

139.  When asked by the court whether exhibit P7 was given to him before or after he signed exhibit P9 accepting compensation from the Government, Mr Suen, after considering for some time, replied that exhibit P7 should have been given to him first.  Mr Suen, however, immediately corrected this and pointing at the signature of D1 as witness on exhibit P9 said:

“Well, no, I did not have contact with him.”

In questions arising when Mr Mitchell sought clarification of this answer Mr Suen said that after Tit Gor gave him exhibit P7 he did not have further contact with D1.

140.  Clearly Mr Suen was not sure about the date when he was shown exhibit P7.  I accept Mr Suen’s evidence in answer to the court and questions arising that after seeing exhibit P7 he never saw D1 again.  The fact in cross-examination Mr Suen said around 2010 does not cause me to doubt the findings I have made. 

No report to the authorities

141.  Mr Wong, Mr Ho and Mr Suen all said they did not make a report or complaint about the matter to any authority (see paragraph 54 of Mr Wong’s skeleton final submission).  Whilst inadmissible to prove the truth of what was said at first glance what Tit Gor told Mr Suen about beating up D1 is somewhat bizarre. Having carefully considered this evidence I am satisfied that Mr Suen is telling the truth about what he was told and why he therefore decided not to take any further action.  The fact Mr Wong, Mr Ho and Mr Suen did not report to the authorities and that Mr Suen did nothing upon being shown exhibit P7 by Tit Gor does not cause me to doubt the findings I have made.

Mr Suen’s knowledge whether D2 worked as an estate agent

142.  Mr Lam submits that the evidence of Mr Suen is vague and uncertain and cannot therefore be relied upon against D2 (see page 5 of Mr Lam’s final submission). Mr Lam relies in particular on Mr Suen’s evidence as to whether or not he knew D2 worked as an estate agent.  In chief Mr Suen said he did not know D2 was an estate agent.  This was repeated in cross-examination Mr Suen again saying he was not familiar with D2 and that only now did he come to know that D2 worked as an estate agent. 

143.  In further cross-examination Mr Lam referred Mr Suen to paragraph 13 of his witness statement made to the ICAC on the 1 March 2013 in which he said D2 told him he works as an estate agent.  Mr Suen confirmed he told this to the ICAC but when asked to confirm whether in fact D2 had told him he worked as an estate agent Mr Suen replied D2 did not tell him but Tit Gor may have implied this.  When asked why he told the ICAC D2 said he worked as an estate agent Mr Suen said his recollection was vague.  After the court explained the question Mr Suen then said in his recollection D2 worked as an estate agent.  Asked if what he told the court earlier that only now did he know D2 worked as an estate agent was not true Mr Suen again replied that his recollection was vague. 

144.  Clearly Mr Suen’s evidence as to his knowledge of whether D2 worked as an estate agent was vague.  Whether or not Mr Suen knew D2, whom he seldom contacted, worked as an estate agent is in my view not central to Mr Suen’s evidence that he was not told about the sale to Power Place.  Notwithstanding this vagueness I am satisfied this aspect of Mr Suen’s evidence does not cause me to doubt the reminder of his evidence, in particular that neither D1 or D2 contacted him about the sale to Power Place and that he was not made aware of the existence of the Provisional Agreement for Sale and Purchase.

Verdict

145.  In reaching my verdict I have carefully considered everything said by Mr Wong and Mr Lam both individually and collectively.  Nothing said by Mr Wong or Mr Lam causes me to doubt the findings I have made.  I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence, which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution have proved all the elements of the charge beyond reasonable doubt as against each defendant, the case of each defendant having been considered separately.  D1 and D2 are convicted as charged.