HKSAR v. MAK TAT FAI

CACC438/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 2006

(ON APPEAL FROM DCCC 293 OF 2006)

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REASONS  FOR  JUDGMENT

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Hon Lunn J (giving the reasons of the court) :

1. At the hearing of the applicant’s application for leave to appeal against his conviction on 18 September 2006 by Deputy Judge Mierczak after a trial in the District Court of a single charge of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Cap. 200 we dismissed the application and indicated that we would give our reasons in due course.  This we do now.

THE PROSECUTION CASE

2. By the Particulars of Offence it was alleged against the defendant that he had :

“

… on or about the 14th day of September, 2004, in Hong Kong, used a copy of an instrument, namely, a note purported to be an agreement between the said Mak Tat Fai and Wan Chi Keung for the transfer of certain shareholdings in Wanasports Holdings Limited, which was and which he knew or believed to be a false instrument, with the intention of inducing somebody to accept it as a copy of a genuine instrument, and by reason of so accepting it, to do or not to do some act to his own or any other person’s prejudice.”

3. It was not in dispute that on 14 September 2004 solicitors acting for the applicant had sent by facsimile a copy of the note, the subject of the charge, to solicitors acting for Mr Wan Chi Keung (exhibit P5).  They did so in support of a claim by the applicant against Mr Wan and in anticipation of civil proceedings begun by writ on 23 September 2004, in which it was claimed that the note evidenced an agreement between the applicant and Mr Wan reached in or about November 2000 in which Mr Wan agreed that in the event that Wanasport was listed on the Hong Kong Stock Exchange before the end of 2001 Mr Wan would give the applicant 3% of the shares of that company.  It was an admitted fact that on 11 December 2001 Wanasport Holdings Ltd (“WHL”), which company incorporated the business of Wanasport International [HK] Ltd (“WIL”), was listed on the GEM Board of the Hong Kong Stock Exchange.

4. In April 2000 the applicant had been employed by a company subsequently known as WIL.  The majority shareholder of WIL was Loyalty Enterprise Ltd (“Loyalty”), of which Mr Wan was the majority shareholder.  By an agreement of 2 March 2000 (exhibit P1) Mr Wan and Mr Tsoi Siu Ching agreed to set up a sport website business.  Through Loyalty Mr Wan was to hold 51% and through Incredible Holdings Ltd (“Incredible”) Mr Tsoi 49% of the shares of the prospective company, later known as WIL.  By written agreements of 8 April and 10 July 2000 (exhibits P3 and P2) Incredible and Loyalty respectively agreed to give 9% and 3% respectively of the shares of WIL to the applicant as commission in respect of his acting as the introducing agent of the joint-venture project.  However, by the terms of that agreement the applicant’s ability to deal with the shares was limited and they carried with them no voting rights. 

5. It was the prosecution case that the note allegedly evidencing  the subsequent agreement between the applicant and Mr Wan, which contained no restrictions on the use of the shares, although bearing a photocopy of Mr Wan’s identity card and his signature, was false as to the agreement written on that document.  There was no such agreement. In his testimony, Mr Wan denied the suggestion put to him in cross-examination on behalf of the applicant that he and the applicant met in the Tsuen Wan office of Wanasport during which meeting, and at the latter’s request of Mr Wan’s secretary, Ms Heidi Siu Sau Fan (“Ms Heidi Siu”), at Mr Wan’s College Road office,, a photocopy of Mr Wan’s identity card had been sent by facsimile to that office and that later that same day in a car in Waterloo Road he had signed that same document after the applicant had written out the text of the agreement.  In her testimony, Ms Heidi Siu denied either receiving a request from the applicant or sending a copy of Mr Wan’s identity card by facsimile to the Tsuen Wan office.

6. It was Mr Wan’s evidence that photocopies of his identity card were kept at both the offices of WIL in Cable TV Tower, Tsuen Wan and at Mr Wan’s own office in College Road.  Mr Wan testified that he had signed those photocopy documents.  Miss Connie Wan (PW4) testified that Mr Wan had signed a copy that she kept at the Cable TV Tower offices of WIA and that she had written upon it the word ‘copy’.  Ms Heidi Siu testified that although she maintained a folder of photocopies of Mr Wan’s identity card at the College Road office Mr Wan had signed none of them.

THE APPLICANT’S CASE AT TRIAL

7. The applicant testified at his trial.  He had begun working on the joint-venture project in February 2000.  His duties included business development, sales and marketing and strategic development.  The ultimate and common goal was to have the company listed.  In April 2001 Mr Tsoi told him to leave the company.  He did so in June 2001.  At the applicant’s suggestion Mr Tsoi bought back the 9% of the shares in WIL that had been given to the applicant pursuant to the agreement with Incredible.  However, Loyalty and Mr Wan had not honoured its agreement to give the applicant 3% of the shares of WIL.  Mr Wan prevaricated with the applicant when he made repeated requests to be given the shares, telling him that the transfer of shares involved a lot of trouble. 

8. It was in those circumstances in November 2000 and at the applicant’s initiative that the note, the subject of the charge, in which the text of the agreement on a photocopy of Mr Wan’s identity card had come to be signed by Mr Wan whilst the two of them were in a motorcar parked in Waterloo Road.  Earlier the same day, whilst he was together with Mr Wan in the offices of WIL in Tsuen Wan and at Mr Wan’s suggestion, he had spoken by telephone to Ms Heidi Siu, Mr Wan’s secretary, in his College Road office and at his request, confirmed by Mr Wan, a photocopy of Mr Wan’s identity card had been sent by facsimile to the WIL office and given to him by a female assistant.  It was on that document that later he had written the text of the agreement and Mr Wan had affixed his signature, Mr Wan prevaricating about signing the document there and then, with the result that was not done until the two of them met later that evening and drove to Waterloo Road in Mr Wan’s car.

9. The applicant testified that he had contacted Mr Wan both before and after the listing of WHL in his attempts to have the 3% of the shares transferred to him, but to no avail.  In July 2002 he approached the Legal Aid Department to seek their assistance.  On 24 September 2004 a writ was issued on his behalf against Mr Wan setting out that claim.

10. The applicant denied that he knew that signed copies of a photocopy of Mr Wan’s identity card were kept at the offices of WIL in Tsuen Wan or that he had seen such copies.  He denied that he had taken such a document from those offices from which he had made the note the subject of the charge.

THE REASONS FOR VERDICT

11. Of the testimony of Mr Wan, whom he described as PW1, the judge said at the outset of his statement of the findings that flowed from his review of the evidence :

“

47.

I can say from the outset that I found PW1 to be an honest and believable witness and I accept what he says, as indeed I do the other prosecution witnesses.”

12. In respect of his evidence of the circumstances in which the note, the subject of the charge, came to be made he said :

“

48.

I accept PW1 when he said that it was impossible that he had signed D10 knowing the contents of the handwritten passage in it by the defendant.”

13. Of the issue, raised in cross-examination of witnesses called for the prosecution and in the evidence of the applicant, of whether or not a photocopy of the identity card of Mr Wan was sent by facsimile to the office of WIL in Tsuen Wan at the request of the applicant the judge said of the evidence of Ms Heidi Siu, whom he described as PW3 :

“

50.

… I also believe her when she said neither the defendant nor PW1 had ever asked her to send a faxed photocopy from the College Road office to the Tsuen Wan office in November 2000.  I am satisfied this did not happen.”

14. Of the evidence adduced in the prosecution case that it was the practice of Mr Wan in WIL to allow photocopies of his identity card to be made, which copies he then signed, the judge said of the evidence of Miss Connie Wan :

“

49.

… I accept, that PW1, when he is away from the company left a copy of his Hong Kong identity card with his signature on it to handle personal correspondence.  She remembered, and I accept, that this had occurred in May 2000 and that she, Connie, had written the word ‘copy’on it.  That is, she identified the ‘copy’the words on D10 to be hers.  I further believe her when she says that that document (D10) was kept in the defendant’s office and only the defendant and PW1 had access to it.”

15. Of the evidence of the applicant the judge said :

“	55.	He did not impress me in the witness-box.  I do not believe his version of events and I reject it.  It is very clear to me that the defendant, contrary to his evidence, was in fact the general manager and man in charge and, effectively, ran the company.  Certainly the prosecution witnesses who gave evidence regarded him as such and I accept that.
	56.	I do not accept that in his position he had never seen a copy of PW1’s Hong Kong identity card with his signature on it nor that he did not know where Connie (PW4) had kept the staff files.  He clearly did know where they were kept and the signed Hong Kong identity card copy of PW1 was in fact kept by him”

16. Of the applicant’s testimony in respect of the circumstances in which the note the subject of a charge had come to be made the judge said :

“

57.

Further, I do not accept the defendant’s evidence with respect to how D10 had come into being.  On the defendant’s version, the document had been faxed to the Tsuen Wan office in November 2000 when both PW1 and the defendant were present.  Yet the defendant says, even at that time, PW1 had to go as he was too busy and arrangements were made in defendant’s car at 8 pm that night; here are two businessmen signing an important document in such circumstances.  The defendant says that he required D10 as an informal reassurance, yet the document was not dated, the body of it was written up by the defendant in the car.”

17. Later, he went on to add the following related observations :

“

60.

As I have referred to earlier, I am satisfied that the transmission of the document ― now D10 ― from the College Road office to Tsuen Wan office, and the circumstances surrounding it, did not occur.  There was no conversation between PW1, the defendant and/or Ms Heidi Siu in this regard and I accept PW1’s and Ms Heidi Siu’s (PW3) evidence here.  It is not a matter of PW3 forgetting, as it was nearly six years ago, it was a long-standing practice to have a chop on a document when received and it was, after all, Connie (PW4) who had written the word ‘copy’ on D10 in May 2000 and not November 2000.  Further to this, of course, is the fact that had it been in received in the Tsuen Wan office by fax, one would expect, even photocopied, to see a header on it.  There is no such header on D10, which further supports the fact that D10 did not come from Ms Heidi Siu (PW3) by fax but was always in the Tsuen Wan office, in fact, as I have found already, the document came into the possession of the defendant.”

In the result, the judge found :

“

61.

I have no doubt at all, on the whole of the evidence as accepted by me, that the defendant did know of the Hong Kong identity card copy and signature which was kept in the Tsuen Wan office, he was well aware of it and there is no other inference other than he took it when he left WIL in June 2001.”

He went on to conclude :

“

62.

… It is very clear that the defendant had used D10, the purported agreement between him and PW1, for the transfer of certain shareholdings of WIL.  This was clearly to get round the conditions and restrictions in P2, that is, D10 made PW1 personally liable.  The defendant knew or believed it to be false and would be used in the civil action.  By reason of so accepting it his intention was to induce PW1 to treat it as genuine.”

AMENDED GROUNDS OF APPEAL AGAINST CONVICTION

Ground 1

18. By Ground 1 it is submitted that the judge erred in finding that the applicant had used a copy of the note :

“

… With the intention of inducing P.W.1 to accepted as a copy of a genuine instrument and by reason of so accepting it to do some act to PW 1’s own prejudice, as this finding is contrary to the learned judge’s primary finding of fact that both the applicant and PW 1 knew that Exh.D10 was a false instrument.”

Ground 2

19. By Ground 2 it is contended that there was a material irregularity in the proceedings in that following the prosecution submission that an alleged lie of the applicant in testimony could establish his guilt of the offence and the judge did not give himself “… the proper lies direction in law.”

Ground 3

20. By Ground 3 it is contended that the judge erred in his assessment of the evidence in respect of the prosecution witnesses by variously allegedly failing to take certain matters into account or reaching findings contrary to the evidence and his rejection of the testimony of the applicant.  In particular, it is said that he erred in his assessment of the evidence of :

(i)	PW1 (Mr Wan);
(ii)	PW 4 (Miss Connie Wan, the sister of Mr Wan and an administrator and accountant at the Tsuen Wan office of WIL);
(iii)	PW 6 (Mr Leo Tsoi, an investor in the joint-venture project );
(iv)	PW 3 ( Ms Heidi Siu, the personal assistant of Mr Wan since 1996 at his College Road office ); and
(v)	the applicant.

SUBMISSIONS IN SUPPORT OF THE GROUNDS OF APPEAL

Ground 1

21. In support of Ground 1 Mr Grossman SC, who appeared for the applicant at his trial, submitted that, although that the Particulars of Offence do not stipulate the person that the applicant sought to deceive by the use of the note, the prosecution case was advanced on the basis that the person was Mr Wan.  It is contended that the prosecution case was that the scheme to which the applicant was a party was one in which it was sought to deceive Mr Wan into believing that the note was genuine and, as a result, to cause him to act to his detriment by paying the money claimed in the applicant’s civil action.  Next, it is pointed out that the judge found that the note, exhibit D10, had been “manufactured” by the applicant without the knowledge or agreement of Mr Wan.  In consequence, it is said that both the applicant and Mr Wan must have known that the note was false.  As a result, it is contended that the applicant could hardly have hoped that Mr Wan would have forgotten about the matter, a matter after all that involved a claim for $4,180,000, and would have been prepared to accept that he had signed the agreement in those terms.  In those circumstances, the applicant could not have intended to deceive Mr Wan in the manner in which the prosecution had advanced its case on the charge.

Ground 2 — the judge’s failure to give himself a ‘lies’ direction

22. Mr Grossman relied entirely on his written submissions in support of this ground.  Reliance is placed upon the fact that in the course of the prosecution closing speech reference was made by counsel to the issue of whether or not a signed photocopy of Mr Wan’s identity card was kept at the offices of WIL at Cable TV Tower in Tsuen Wan and the applicant’s denial that a copy was kept there or that he knew of that fact.  It was submitted by the prosecution in their closing speech that the applicant’s denial of knowledge of that fact :

“	… isn’t just a mistaken belief, a genuine mistaken an understanding.  That in fact is a lie.  Then why is he lying about it?” (Appeal bundle 45U–46A)

Of its significance, counsel suggested to the trial judge :

“	… this state of knowledge, if proved beyond reasonable doubt, goes a long way to establishing his guilt … the court could take a [sic] cognisance if you accept it wasn’t a genuine mistake, a mistaken belief, but a deliberate lie.”

23. It is submitted on behalf of the applicant that in law a lie told by a defendant in his trial could not establish guilt.  Reliance is placed on the statements to that effect in the judgment of Chan PJ in the Court of Final Appeal in Yuen Kwai Choi v. HKSAR [2003] 6 HKCFAR 113.  Complaint is made on behalf of the applicant that in his Reasons for Verdict the judge did not correct that erroneous submission of law nor did he give himself a correct direction in law.

24. In the alternative, it is submitted that if the prosecution’s speech invited the court to place reliance upon the lie of the applicant in his testimony, if the court found it so to be, in strengthening the inference of guilt to be drawn against the applicant each of the four criteria identified in the judgment in Yuen Kwai Choihad to be established, namely :

(a)	it had to be a deliberate lie;
(b)	it had to relate to a material issue in the case;
(c)	there was no innocent explanation for the lie; and
(d)	it was a lie which was either admitted or proved by independent evidence.

It is contended that on the evidence the prosecution failed to establish criteria (c), it being suggested that it was a possibility that could not be excluded that in his evidence the applicant had falsely denied knowledge of the fact that there were in the office of WIL signed photocopies of Mr Wan’s identity card out of concern that that his truthful account of the circumstances in which Mr Wan had signed the note, exhibit D10, might be rejected if it were known that he knew of the existence of those signed photocopies in the office.

25. This court is invited to note that in his Reasons for Verdict the judge stated in terms that he rejected the applicant’s evidence that he had never seen a copy of the identity card of Mr Wan which bore his signature and that he did not know where the related staff files were kept in the office.  The judge found :

“	He clearly did know where they were kept and the signed Hong Kong identity card copy of PW 1 was in fact kept by him.”

26. Complaint is made that notwithstanding those findings and the related submissions of the prosecution the judge did not give himself any ‘lies’ direction whatsoever.  That is said to be a material irregularity.

Ground 3 — alleged omissions and errors in the judge’s analysis of the evidence and his resulting determinations of fact

27. Given the multiplicity of points related to the evidence and the judge’s findings taken under this heading it is convenient to deal with the arguments together with a consideration of the related submissions later in this judgment.

THE SUBMISSIONS OF THE RESPONDENT

Ground 1

28. On behalf of the respondent, Mr Zervos SC, submitted that the crucial issue relevant to this ground was the judge’s findings in respect of the intention of the applicant when he caused a copy of the note, exhibit P5, to be sent to Mr Wan.  It was contended that Mr Wan’s knowledge that the note was false was irrelevant to the issue of whether or not the applicant intended to induce him to accept the note as genuine.  The court was asked to note that the applicant had used the note, which on the applicant’s evidence had been made in November 2000, in September 2004, and that it was possible that the applicant had done so in the hope that Mr Wan would not remember the matter and just accept it as genuine.  Furthermore, it was submitted that even if it be the case that objectively the goal of a criminal enterprise is unlikely to be achieved, by itself that does not preclude a person, such as the applicant, from being possessed of the intention to achieve that result.

Ground 2 — the alleged failure of the judge to give himself a ‘lies’ direction

29. On behalf of the respondent the court was reminded that in his closing speech to the judge counsel for the applicant had identified the central issue in the case as being evidence that amounted to “… two versions and you will either accept the defendants version or not.” (Appeal Bundle, pages 226T–227A).  It is submitted that the judge did no more than state he accepted the version of the prosecution witnesses and rejected that of the defendant.  He did not rely upon his rejection of the applicant’s testimony as lies of further and separate evidential value, in particular that thereby he was guilty or that it strengthened the prosecution case.  In those circumstances, there was no need for a ‘lies’ direction.

Ground 3

30. Counsel for the respondent invited the court to note that of the multiplicity of evidential points and related judicial findings taken under the umbrella of this ground of appeal almost all of them were canvassed at the trial with the judge in Mr Grossman’s closing speech on behalf of the applicant. 

A CONSIDERATION OF THE SUBMISSIONS

Ground 1

31. Clearly, the note of the alleged agreement, exhibit P5, attached to the applicant solicitor’s letter to Mr Wan’s solicitors dated 14 September 2004 was sent to Mr Wan in pursuit of a claim in respect of that alleged agreement.  What was the applicant’s intention in so doing?  Undoubtedly, to have it accepted as being genuine: but, by whom?   Clearly, ultimately, if necessary, by a judge trying that civil claim.  But, what of the applicant’s intention to have it accepted by Mr Wan at the outset?  In that context, one relevant factor was the timeframe of events.  The initial agreement between Mr Wan, acting through Loyalty, and the applicant was dated 10 July 2000, that is more than four years prior to the letter of 14 September 2004.  That agreement provided for Loyalty to give the applicant 3% of the shares of the prospective listed company.  Given the fact that there was in fact an agreement with the applicant in respect of 3% of the shares and, having regard to the considerable lapse of time involved and the subsequent reorganisation of the company was it the applicant’s expectation that Mr Wan would remember the fact of an agreement in respect of the 3% shares and would be induced to accept as genuine exhibit P5 as the record of that agreement?  Primarily, this was an issue of fact.  Although the prosecution may have been better advised to present their case on the basis that it was intended to induce the court ultimately dealing with the claim into accepting the record as genuine, or to aver that intention in the alternative to the alleged intention in respect of Mr Wan, there was no reason why the prosecution could not proceed on the latter basis alone.

32. Although it is clear that the crux of the resolution of this issue requires focus on the intention of the applicant it is nevertheless relevant to consider the evidence of Mr Wan of his response to his receipt of the note.  Clearly, he recalled the fact of an agreement in respect of 3% of the shares because he went looking in his own documents for such an agreement.  It was his evidence that he managed to locate an unsigned copy of exhibit P2 (Appeal Bundle, page 74A–J).  Next, together with his solicitor he visited the applicant’s solicitor on 5 November 2004 in order to inspect the original document, exhibit D10, of which exhibit P5 was a copy.  It was only after that inspection, and armed with a copy of the original agreement that Mr Wan was able to say that exhibit D10 was false.

33. In our judgment in all the circumstances the judge was clearly entitled to find, as he did, that the applicant intended to induce Mr Wan to accept the note as genuine and to act to his prejudice.  There is no merit in this ground of appeal. 

Ground 2

34. It is to be noted that although complaint is made now that the submissions of the prosecution in their closing speech in respect of the significance to be attached to what were categorised as the ‘lies’ of the applicant in his evidence at trial were fundamentally flawed in law or, in the alternative, required fulfilment of the well-known criteria no reference whatsoever was made to that issue by Mr Grossman in his closing speech on behalf of the applicant.

35. Moreover, although the judge set out in some detail the various aspects of the applicant’s testimony which he rejected, nowhere in his Reasons for Verdict did he state in any way that he found the rejected testimony or any part of it to be a lie upon which further significance and evidential value was to be attached.  All the judge did was to articulate in simple terms the aspects of the applicant’s testimony that he rejected and his reasons for so doing.  Conversely, he stated in terms the evidence of the prosecution witnesses that he accepted as being true, indicating as he did so the various aspects of their evidence that he had taken into account in finding them credible witnesses.

36. In Yuen Kwai Choi v.HKSAR (2003) the Court of Final Appeal addressed the very issue arising in the trial of the applicant.  In his judgment Chan PJ, with whose judgment the other judges agreed, said (paragraph 36 at pages 128I–129C) :

“

In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate.  R v. Barnett [2002] 2 Cr.App.R. 11 168, 173.  In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient.  See R v. Dehar [1969] N.Z.L.R. 763, 765; R v. Man Bing Chou [1993] 2 HKCLR 71; R v. Liacopoulos and others, unreported, August 31, 1994, referred to in R v. Burge and Pegg [1996] 1 Cr.App.R. 163, 172 to 173.  In these situations, there is no danger of improper use by the jury of any lie told.”

37. There is no doubt that in the circumstances obtaining at trial that there was no need whatsoever for the judge to give himself a lies direction.

38. The ambit of the duty of a District Court Judge in discharging the obligation imposed upon him by section 80 of the District Court Ordinance, Cap. 336 to reduce his reasons for verdict into writing at the conclusion of a criminal trial was considered by this court in HKSAR v. Choi Chin Ngon [1998] 1 HKLRD 902.  In the judgment of the court, delivered by Mayo JA (as he was then), in the context of addressing a ground of appeal that the judge, who had relied upon her findings of the lies told by one of the applicants at his trial, had failed to give herself the appropriate direction in law in respect of ‘lies’ the matter was addressed thus (pages 909D–910F) :

“	In order to deal with this ground in a satisfactory manner it is necessary to consider first the extent to which the position of a District Judge can be equated with that of a judge’s summing up to a jury and secondly away the judge should approach lies when he is satisfied that the defendant has been telling lies.
	We are satisfied that the duties of a District Judge have been accurately portrayed at p.113 of the judgment of Roberts CJ in R v. Chan King-man and others 1980 HKLR 105 :
	‘	The court in LAM Tin-chung v. R.  was concerned to decide what matters of law needed to be mentioned in reasons for verdict and with nothing else.  In the course of his judgment Mills-Owens, J.  pointed out that a judge, in his reasons for verdict, need not expressly mention such obvious matters as the onus and standard of proof, although they would necessarily appear in a summing-up.
		The duty of a District Judge was fully dealt with by the Full Court in R. v. R.E. Low (quoted in R. v. Godber), the effect of which was to rule that a District Judge, in setting out his Reasons for Verdict, is under no obligation set out his mental processes in full.  At page 82, Blair-Kerr, J. deals with the question as follows :
		“	It was contended by Mr. How that a District Judge’s statement of his reasons for verdict prepared in pursuance of section 30 of the District Court Ordinance was comparable to a Judge’s summing up to a jury.  I do not agree with this view.  The District Judge’s only statutory duty is to record a short statement of the reasons for the verdict.  There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence.  Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a Judge misdirects a jury on a matter of law.  Similarly, if he chooses to review the evidence at length and it is clear from his statement that he has substantially misapprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusions on the facts before this Court.  But it must be remembered that the District Judge is himself the jury.  He has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.
			Of course, to the extent to which he chooses to discuss the evidence, to that extent does he disclose how ‘the mind of the jury’ was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict.  But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and fact which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge’s finding if, having regard to the whole of the evidence, such findings appear reasonable.”
		We consider that the passage quoted from the judgment of Blair-Kerr, J. sets out correctly the general duty of a District Judge.’
	There is nothing in this extract to suggest that there is any necessity for a judge to state in his Reasons for Verdict that he directed himself on the subject of lies.  We do not consider it to be desirable or necessary for a professionally qualified judge to state in his Reasons for Verdict that he has dealt with all of the matters which he would direct a jury on when dealing with lies.  It can safely be assumed that the judge will have correctly approached the subject unless there is some clear indication to the contrary.”

39. There being no requirement upon the judge to give himself a ‘lies’ direction equally there was no requirement upon him to state in his reasons for verdict that he disregarded the prosecution contentions in respect of lies and merely rejected the evidence of the applicant.  There is no merit in this ground of appeal against conviction.

Ground 3

40. In both his written and oral submissions on this ground of appeal Mr Grossman acknowledged correctly at the outset that, subject to exceptions :

“	… as a general rule, the Court of Appeal will defer to the trial court findings of fact and assessment of credibility, the trial court having had the benefit of seeing and hearing the witnesses.”

41. In answer to a question of the court Mr Grossman identified the following five points (A to E) as being of equal strength in support of his contention under this ground.

A. Was a signed photocopy of Mr Wan’s identity card kept at his office or offices?  If so, what was the purpose of doing so?  (paragraphs 16 and 17)

42. By paragraphs 16(a) and 17 of Ground 3 it is contended that the judge failed to take into account, in respect of the issue of how many signed photocopies of Mr Wan’s identity card there were, firstly that Mr Wan had given conflicting evidence on the subject and, secondly, that his evidence conflicted with the evidence of Miss Connie Wan and Mr Tsoi, whose evidence in turn conflicted with each other.

43. On behalf of the respondent it was submitted that the evidence and the judge’s findings as to the number of signed copies of Mr Wan’s identity card was not crucial to the prosecution case, rather, what was crucial was whether such a document existed and, if so, where and by whom it was kept.  If it did exist, that gave rise to the question of whether or not the applicant added to that document the words of the alleged agreement at a later date without the knowledge or agreement of Mr Wan.

44. Mr Grossman reminded the court that in his evidence Mr Wan had given various accounts of his practice in respect of the photocopying of his identity card and the circumstances in which he affixed his signature to that photocopy (Appeal Bundle, pages 77T–78U).  He said that he had given them to his staff for them to operate things on his behalf in connection with the company.  It is to be noted that at the outset Mr Wan had spoken in terms of an ongoing practice (Appeal Bundle, page 78G–H) :

“	Usually the ID card of mine was being photocopied and sometimes I will affix my signature on the paper.  And then they will be kept in the office.”

45. At the outset he said that such a copy was kept in the Tsuen Wan office and he ‘believed’ one was also kept in his own College Road office.  He didn’t remember whether one or two copies had been made.  He said that Miss Connie Wan and the applicant were the persons responsible for the safekeeping of the document or documents.  Of course, both of them worked in the Tsuen Wan office.

46. In cross-examination, Mr Wan agreed that he had signed one such document in College Road and another in Tsuen Wan, adding that he signed documents to replace those that were “missing or stained”.

47. Ms Heidi Siu testified that she had made photocopies of Mr Wan’s identity card, which were then kept in a folder at the College Road office.  She affixed a chop with the word ‘copy’ on those photocopies.  Mr Wan did not sign them. 

48. It is to be noted that in her testimony Miss Connie Wan had identified the photocopied version of the note the subject of the charge, exhibit P6, as bearing Mr Wan’s signature on a photocopy of his identity card together with the word ‘copy’ which had been written by her in ball pen, which she said might have been in black, blue or red ink.  She said that there was only one master copy of this document, which she had placed in a file.  It was her evidence that this file was kept in the applicant’s office (Appeal Bundle, page 133Q).  She said that in the office of WIL in Cable TV Tower there was only one such original signed master copy and that exhibit P6 looked like a photocopy of that master copy.  As and when required she made copies from the original for use in handling Mr Wan’s personal correspondence, for matters such as the change of a licence and to make applications on behalf of the company.

49. Mr Tsoi said that he was present at a conversation in which the applicant had asked Mr Wan for a signed photocopy of his identity card and that he had witnessed the latter signing several photocopies of his identity card, after which the applicant had taken them away.

50. In his Reasons for Verdict the judge rejected Mr Tsoi’s evidence in that regard, concluding that he was mistaken (Appeal Bundle, page 26, paragraph 51).  The judge found that, although there were several photocopies of Mr Wan’s identity card in existence, there was only one signed photocopy of his identity card and that was in the custody of the applicant.  In doing so, he accepted the evidence of Ms Heidi Siu that she did not have a signed photocopy of the identity card (Appeal Bundle, page 25S–T, paragraph 50).  The judge accepted that Mr Wan’s purpose in providing a signed photocopy of his identity card to his staff was to facilitate the running of the business.

51. It was only in the cross-examination of the applicant by counsel for the prosecution and at his request that the original document, exhibit D10, was adduced into evidence from the possession of the applicant’s lawyers.  In consequence, that document was not shown to Miss Connie Wan at the trial.  The original bears the word ‘copy’ in red ballpoint pen, the text of the alleged agreement and the signatures of the applicant and Mr Wan in blue ballpoint pen.

52. Clearly, having heard the evidence of the several witnesses who testified to this issue, the judge was entitled to decide whose evidence he accepted.  In accepting the evidence of Miss Connie Wan and Ms Heidi Siu and finding that there was only one signed copy of Mr Wan’s identity card the judge was relying upon the witnesses who made, filed and used the copies of Mr Wan’s identity card.  Similarly, he was entitled to find, as he did (Appeal Bundle, page 25H–I) that its provision was related to the running of the business.  Miss Connie Wan was the person by whom use was made of that document in the offices of WIL and she was able to identify not only the signature of Mr Wan but also her writing of the word ‘copy’ on that document.  His rejection of the evidence of Mr Tsoi as mistaken was not central in anyway to the important issue to be decided, namely: did the evidence establish that the applicant had access to a signed photocopy of Mr Wan’s identity card bearing the writing of Miss Connie Wan?

B. If the applicant stole such a valuable document why was there no ‘hue and cry’ after the appellant left the business and it was found to be missing?  (paragraph 23)

53. It was Mr Wan’s evidence that he could not say whether or not someone must have noticed that the original signed photocopy of his identity card had gone missing.  For her part, Miss Connie Wan said that she had left the company prior to the applicant leaving at which time the applicant was in possession of the original signed photocopy of Mr Wan’s identity card.  She returned to carry on working in the company after his departure but was not then concerned in her duties with such matters.

54. In his Reasons for Verdict the judge found that there was nothing of significance to be attached to the fact that no ‘Hue and cry’ ensued.

55. Given that it had been the evidence of Mr Wan (Appeal Bundle, page 87N–P) that on occasions when the signed photocopy of his identity card had gone missing or had been stained that he would simply sign another photocopy of his identity card it is hardly surprising that the judge attached no significance to this submission on behalf of the applicant.  Clearly, the judge was entitled to make such a finding.

C. If the appellant had stolen and forged the photocopy of the identity card why should he make up such a convoluted story?  (paragraph 29(b))

56. By this submission it is argued that the applicant’s case, as put in cross-examination and in his own evidence, was unnecessarily convoluted if the fact was that he had stolen the original photocopy of Mr Wan’s identity card.  Why would the applicant give an account in which he unnecessarily involved Ms Heidi Siu as a party in the events that were the nub of his case, namely having spoken to the applicant by telephone following which she had faxed him a copy of the identity card of Mr Wan at Cable TV Tower offices of WIL in Tsuen Wan?  In the cross-examination of Ms Heidi Siu the issue of her ability to remember such an event years later had been canvassed at some length (see Appeal Bundle, page 129L–N).  However, she remained adamant that no such request had been made nor had she sent the document as suggested.

57. Also, on that account a further complication flowed from the fact that the original document, exhibit D10, bore the handwritten word ‘copy’ in the hand of Miss Connie Wan.  Accordingly, the further convoluted aspect of that account was to involve Miss Connie Wan in contact with the document following it having been faxed to the Tsuen Wan office and prior to it being given to the applicant.

58. Needless to say, it was not required of the judge that he enter into speculation as to why the applicant had presented his case and testified in support of it in that manner.  The judge did note that exhibit D10 does not bear any facsimile transmission header as might have been expected (Appeal Bundle, page 29M–O).  Also, if the photocopy of Mr Wan’s identity card had been faxed to the Tsuen Wan office, where it was simply delivered to the applicant and Mr Wan, why would Miss Connie Wan have written the word ‘copy’ on it?  Plainly, the judge was entitled to reject the testimony of the applicant and to accept the account of Mr Wan and Ms Heidi Siu that no telephone request was made of Ms Heidi Siu, which resulted in Mr Wan’s identity card being faxed to the Tsuen Wan office (Appeal Bundle, page 29J).

D. Why did Mr Wan wait for about eight months before reporting the matter to the police and why did he offer $100,000 to the applicant?

59. The judge not only described the evidence of Mr Wan in this respect succinctly at paragraphs 11 and 12 of the Reasons for Verdict but went on at paragraphs 53 and 54 to describe his acceptance of the reasons given by Mr Wan for the delay in reporting the matter to the police :

“	53.	Further, I saw nothing sinister in the fact that the matter was not reported to the police until later in the piece.  PW1 found out about the existence of D10 in about September 2004 and, true it is, that the matter was not reported to police until July 2005.
	54.	I believe PW1 when he says that although he was up for a potential loss of about $4 million he did not want to make a big issue out of it.  I further believe him when he says that he did not want to waste time and money and also did not want to see the defendant, who had worked for him for a period of time, go to gaol.  It is true, that through his solicitors, PW1 had offered $100,000 to the defendant without prejudice.  Again, I saw nothing sinister in this; PW1, when asked about this in the box, had said ‘you don’t know me’, and I believe that.  He felt, and I accept, that the defendant was a poor man who had used a false document, was on legal aid for a civil action, fallen on bad times, was a pathetic person.  I am satisfied that PW1 was genuinely of that view and I accept his evidence in that regard.  Such delay would not cause me to disbelieve PW1 in any way, shape or form.  As I say, I accept his evidence.”

60. Once again having heard and seen the witnesses trial the judge’s findings were clearly open to him on the evidence.  Importantly, he addressed in terms the various concerns expressed on behalf of the applicant and for the concise reasons he gave, nevertheless, stated that he believed the account of Mr Wan.

E. What did the applicant have to gain from this fraud, bearing in mind the existence of the Loyalty agreement?  (paragraph 29(b))

61. It was not in dispute at the trial that the agreement dated 10 July 2000, exhibit P2, between Loyalty and the applicant, under which the applicant was to be given 3% of the shares of the joint-venture company, then described as Wanasports International [H.K] limited, had not been honoured by Loyalty.  Clearly, Loyalty remained liable under that agreement.  However, it is clear that the note of the agreement the subject of the charge, exhibit D10, is in terms significantly different from the earlier agreement, exhibit P2.  Of the differences, the judge said of exhibit D10 (Appeal Bundle, page 30E–H) :

“	It is very clear that the defendant had used D10, the purported agreement between him and PW1, for the transfer of certain shareholdings of WIL.  This was clearly to get round the conditions and restrictions in P2, that is, D10 made PW1 personally liable.”

62. Amongst the conditions and restrictions contained in the agreement of 10 July 2000, exhibit P2, was a prohibition on the applicant of sale or mortgage of the shares and a right of pre-emption in Loyalty. 

63. Once again, on the evidence the judge was entitled to make the findings he did in respect of the differences between the two agreements and the applicant’s related motives.

MISCELLANEOUS MATTERS

64. None of the remaining miscellaneous points made under Ground 3 in respect of the judge’s alleged errors in analysis of the evidence and in his resulting findings, taken individually or collectively, has any merit.

CONCLUSION

65. For the above reasons the application for leave to appeal against conviction was refused at the hearing of the application.