THE QUEEN v. PETER BERND BECKERS

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J U D G M E N T

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Power, J.A.:

1. The applicant along with other defendants faced eight counts of conspiracy to accept advantages as agents contrary to the Common Law and s.9(1)(a) of the Prevention of Bribery Ordinance. The applicant was convicted in the High Court (Hooper, J. and a jury) on counts l, 4, 5 and 11 and he now seeks leave to appeal against those convictions.

2. The charges arose out of a series of transactions occuring between 1979 and 1986 in which it was alleged that the applicant, who was an employee of Swire Air Caterers, conspired with others, both fellow employees and suppliers, to obtain secret commissions. The dramatis personae and the periods were different in each charge. I refer only to the charges upon which the jury convicted the applicant. Count 1 alleged a period from 1979 to 1986, Count 4 from 1981 to 1986, Count 5 from 1981 to 1985 and Count 11 from 1984 to 1986.

3. It was the Crown case that the applicant had laundered the money he corruptly received through the account of his wife Helen Kim. This allegation was opened by Mr. Whitehouse as follows:

"You will hear evidence, members of the jury, from an accountant. This is one of the more complicated part's of the case. You might well expect, having heard what I have sad about all this money being paid from various sources, that these accused would really be quite affluent men.

    You will hear that the anti-corruption legislation gives the I.C.A.C. power, to examine people's bank accounts. This is being done, and you will hear details of this from the accountant. Mr. Wong had a large amount of money; Mr. Beckers not such a large amount, but you will hear that his wife's trading company received quite a great deal of unexplained capital into its account.

    I won't complicate the issue at this stage by going into a lot of detail about that. What you might be interested to hear is that I did say that cash was always paid to Mr. Beckers by Ho; on two occasions that was not the case, members of the jury. Ho will tell you there was a reason for that because he was going on leave and the 'pot' payment from Mr. Wong hadn't arrived so he in advance paid Mr. Beckers a cheque, this was in 1984. The cheque was made payable to Beckers' wife Helen Kim, and it was for $55,000. That cheque has been traced and you can see it.

    There was one other similar example of this where Ho did not have sufficient cash in hand and so he gave Mr. Beckers a cheque with no payee on that cheque. The cheque has been traced, and it went through an account to the credit of Beckers' wife Helen Kim. That cheque was for $13,236.60. Mr. Ho will tell you that it represented a 'pot' payment; and he will also tell you that that is extremely typical of how careful Mr. Beckers was when it came to monthly accounting, he would expect from Wong a breakdown of all the figures down to the nearest 10 cents."

4. The accountant, whose evidence was referred to in that passage, was a Mr. Love. The Crown sought to use his evidence in accordance with the provisions of s.21 of the Prevention of Bribery Ordinance which reads as follows:

"S.21 (1) In any proceedings against a person for an offence under Part II (other than section 10), the fact that the accused was, at or about the date of or at any time since the date of the alleged offence, or is in possession, for which he cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income, or that he had, at or about the date of or at any time since the date of the alleged offence, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, may be proved and may be taken by the court -

(a) as corroborating the testimony of any witness giving evidence in such proceedings that the accused accepted or solicited any advantage; and

(b) as showing that such advantage was accepted or solicited as an inducement or reward.

    (2) For the purposes of subsection (1) a person accused of an offence under Part II (other than section 10) shall be presumed to be or to have been in possession of pecuniary resources or property, or to have obtained an accretion thereto, where such resources or property are or were held, or such accretion was obtained, by any other person whom, having regard to his relationship to the accused or to any other circumstances, there is reason to believe is or was holding such resources or property or obtained such accretion in trust for or otherwise on behalf of the accused or as a gift from the accused."

5. His evidence was objected to by Mr. Llewellyn, who was then appearing for the applicant, on the ground that the applicant had not, prior to the trial, been given the opportunity to explain the "disproportionate" property. This submission was, it seems to us, in the light of the decision in. R. v. Handforth & others No.361 of 1984, rightly rejected by the trial judge. We feel we should, however, add in this regard that this aspect to the matter was not really in issue before us and was not canvassed in any detail in the submissions of counsel.

6. The evidence having been ruled admissible, Mr. Love was called. We have not had a transcript of his evidence out there is no dispute between counsel as to the way in which it unfolded. Mr. Love had, it appears, spent 7 months aided by his own staff and by his computers examining the accounts of the applicant and his wife. He found that over that period 1979-1986, more than $3m that had passed through the accounts of the wife could not be accounted for. Included in that figure were the proceeds of the two cheques to which reference was made in the opening by Crown Counsel. His evidence in chief was, we are told, fairly short. He gave his conclusions but did not, step by step, set out his analysis. Given the complexity of his analysis, this is not surprising. And given his status as an expert witness, there seems to us nothing objectionable in his so doing. Indeed, the Defence did not consider this approach improper as no objection was made to the evidence on this ground.

7. The trial judge, however, indicated that he felt the jury should be assisted by a more elaborate exposition of the witness's approach and required that schedules be prepared. This was done and these were handed in by counsel for the assistance of the jury. The cross-examination was, we are told, short and no real issue was made as to the conclusions reached.

8. It was essential that the effect of this evidence be fully and carefully dealt with in the judge's summing-up. It was, on one view of it, a dagger in the heart of the defence. Mr. Whitehouse, as the trial proceeded, seems, understandably in our view, to have approached it upon the basis that its admissibility and relevance were no longer in issue. His cross-examination commenced in the following way:

"Q. Now I want to ask you about one small part of Mr. Love, the accountant's evidence to the effect that in your wife's account there were unidentified large cash receipts of a sum just in excess of three million dollars.

A. Yes.

Q. Were you using your wife's account, if I can use the very topical expression, to launder the money that Mr. Ho was giving you?

A. No.

Q. Is it just a coincidence then that on the only two occasions Mr. Ho gave you cheques they found their way into your wife's account?

A. I don't know, but I would give cheques to my wife in order to do certain transactions.

Q. That's the truth of the matter, isn't it, that three million unidentified cash receipts at her account were from you as pot money received?

A. That's not true."

Mr. Whitehouse later returned to this topic again adopting the same attitude to it. He said:

"Q. Now I want to ask you some questions about your banking account just very shortly. I have asked you about this money your wife had described by Mr. Love as unidentified large cash receipts amounting to three million. Did you throw any light on the - its such a large figure - $421,000 large non-cash receipts received to your wife's account?

A. I can only answer in a way which I have been aware of what she has been doing. Firstly, she has been doing business, of course, through Jasmin Trading. Jasmin Trading has a subsidiary company which is called Preciso International of which her father runs the ......

Court:A subsidiary company called .....

A. Preciso International ...

A. P-R-E-C-I-S-O, of which her father runs the Korean branch; and in connection with this business, my wife had received financial assistance from her father. I also know that before we got married, my wife received allowances from her former boyfriend, but I am unable to put a figure to those allowances. I also know that my wife was the banker for the Korean lady banking circle who would deposit the collected amounts which were contributed by each lady into her account. As far as I am aware, 7 or 10 or even more ladies were involved, and the payments into her account were figures of anything between $50,000 and $100,000. I also know that some of these ladies had been investigated by the ICAC because when payments were made by cheque and could be traced to them, they were questioned about this. Furthermore, my wife's brother and brother-in-law had been working in the Middle East as construction engineers, and they themselves, as well as friends, had deposited money with her when they came to Hong Kong which would have enabled the relatives coming from Korea to have access to money in order to purchase items here in Hong Kong, since it would have otherwise been difficult for them to take money out of Korea to do so.

Q. It's interesting you've got that information now, because when you were asked by your counsel whether you had discussed figures with your wife in her account, you said you did not.

A. I haven't discussed figures. I only know that she made certain transactions."

9. We would observe that at no point in his cross-examination did the applicant make any admission that more than $3m had passed through his wife's accounts that could not be accounted for.

10. At the conclusion of the evidence the trial judge, perfectly properly, canvassed with counsel in the absence of the jury the issue of corroboration, a vital matter in this prosecution as the principal evidence had come from accomplices. During this discussion no mention was made of the evidence of Mr. Love.

11. Mr. Whitehouse, in his speech to the jury, again treated the evidence of Mr. Love as though its admissibility and relevance were not in issue. He said:

    "Well of course, members of the jury, we have heard about property in Australia, the Chalet Jasmin in Switzerland, but it is fair to say that he hasn't had a vast amount of money through his own accounts.

    The answer as to where this money has gone is a very easy answer to give. If I may use the term again, Mr. Beckers, in the Crown's submission, launders his illegal commissions, profits from other companies he has set up, through his wife, Helen Kim.

He went, on later to say:

    "Members of the jury, all this money that he's got, this three million unidentified cash, and other money too, in his wife's account, is all capable of amounting to corroboration of his guilt on Count 1; and as I say, members of the jury, on the other counts too which he faces. All this money in his own account and in his wife's account and all the money he's had - the cheques from the Australia Seafood Company - all that is capable - it doesn't have to be regarded by you as corroboration but it may be taken by you as corroboration of Keefe Ko's evidence and of Helen Yeung's evidence."

12. The attitude of Mr. Llewellyn to this evidence was shown in his address to the jury when he said:

"There's the matter, of course, of Mr. Beckers' finances, members of the jury. I must deal with shortly. His finances, and can I call them also the ancillary items, the paintings and the watches.

As to the finances, you have heard Mr. Love, you've got his various schedules. I'm not going to tediously go through those, members of the jury. You can look at those at your leisure."

He returned later in his speech to this matter saying:

"Insofar as Mrs. Beckers' bank accounts are concerned, both her personal account and her Jasmin account, members of the jury, all that the Crown is saying is: Well, there it is, members of the jury. There appears to be lots of money in it. We say it's from corruption.

That's not really good enough, members of the jury, is it?"

13. Mr. Llewellyn appears, in the above passages, not to have been treating the evidence of Mr. Love as though its admissibility was in issue, but to have been raising doubts as to its value.

14. The approach of the trial judge, in his summing-up, was, however, to hold that at least for the purpose of s.21, the evidence was not admissible. He said:

"And I'm now going to turn to the schedules, and perhaps the first one is the one - the 5(A) relating to Mr. Beckers.

    As I told you at the beginning, these schedules are not evidence. These schedules have been placed before you to help you follow the evidence, to guide you as to what the evidence is.

    Now the total figures produced before you on that schedule 5(A) relate to the period from the 1st January 1978 to the 31st December 1986, in other words, a period which starts a whole year before the earliest date for the first conspiracy.

    No individual schedules have been produced in respect of each count, although the starting dates are not all the same, and some are alleged to have started much later. Mr. Love admitted that in a small number of cases, the documents supplied to his firm did not comprise complete account records or the whole period for each account investigated.

    Not all Mr. Love's schedules to which he referred in his evidence in the witness box have actually been put before you. Indeed, it seems doubtful to me that you would have had any schedules to assist you at all if I had not asked for them. The Crown weren't going to put them in. It seems that you were going to be expected to hear figures spouted by the accountant in the witness box without any schedules to assist you, and it was going to be left to you to check that all the documents which had been produced before the court in large numbers, as to whether those figures were accurate or not.

    In none of the schedules, which you have received, have the bank accounts, been identified by the bank account numbers or by the relevant exhibit number of the documents concerned. It is not, therefore, possible for you or me to check the information contained in the schedules against the documents themselves. Well it would be possible, I suppose, if we were to take seven months, like Mr. Love did.

    The schedules are not evidence, as I have told you, and it is the documents themselves which constituted the evidence. The fact that the figures for Mr. Beckers' salary in Mr. Love's schedule does not reflect his admitted salary during the same period gives rise to the possibility that Mr. Love's schedules do not show a completely accurate picture of the financial resources of Mr. Beckers.

    It is not for you or I to go through these accounts, these documents, these exhibits and try and work out the financial resources, that could take months, and as you hear Mr. Love say, his report took seven months to compile.

    If the prosecution wish to rely upon Section 21 they must prove to your satisfaction that the conditions are satisfied before you can use that evidence as corroboration. I am going to direct you in this case that this section cannot assist, you in this case because the evidence is not sufficiently clear."

15. Having said this the trial judge gave no further directions to the jury with regard to this evidence and it is with this failure to further direct that the applicant, inter alia, takes issue.

16. With great respect, it is not altogether clear what the trial judge meant by the direction set out above. Would the jury have understood that he was withdrawing the evidence from them or would they have understood that he was telling them simply that they could not apply s.21 thereto? If he was purporting to withdraw the evidence from the jury we are satisfied that while he might have been entirely justified in his misgivings as to the cogency, i.e. the weight to be attached to the evidence, and was making observations in that regard to the jury, he had no right to withdraw it, that is what he was purporting to do, from them. The jury were the judges of fact, and the view which they took of it as an issue of fact was a matter entirely for them. The application of s.21 to the evidence would then depend upon their assessment of it as matter of fact. If the jury had understood the judge to be withdrawing all consideration of the evidence and had followed that direction, as we must assume they would have, then no damage could have been done to the applicant as he would have had the benefit of having admissible evidence withdrawn from the jury's consideration.

17. On the other hand, however, the jury may have understood from the direction that while they could not be assisted by s.21, the evidence was nonetheless left to them for consideration. If this was the view they took it was vital that they be given a careful direction as to the use to which they could put it. It might, otherwise, be said that the trial judge had withdrawn the dagger but he had left an open wound. They needed direction, not only as to the use to which they could put the evidence with regard to the three million dollars which had allegedly passed through the wife's account, but also as to how they should approach the trenchant, and almost certainly damaging, cross-examination of the applicant based upon that evidence.

18. Given the above uncertainties we are satisfied that the conviction was both unsafe and unsatisfactory. We do not, in the light of the view we take of this major ground of appeal, need to canvass the others grounds that were argued. We give leave. We treat the application as the hearing of the appeal, allow the appeal, quash the conviction and set aside the sentence. We do not consider that this is an appropriate case in which to apply the proviso.

19. Re-trial ordered.