HKSAR v. WONG TIN CHUK AND OTHERS

CACC 761/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 761 OF 1997

(ON APPEAL FROM DCCC NO. 272 OF 1997)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The three applicants were charged with one offence of attempting to export unmanifested cargo, contrary to s.18(1)(b) of the Import and Export Ordinance, Cap.60, and one offence of attempting to export prohibited articles, contrary to s.6D(1) and (4)(b) of the same Ordinance. The first offence particularized that the three applicants, on 25th June 1996, in Hong Kong, attempted to export unmanifested cargo, namely 25 left hand drive private vehicles. The second charge particularized that they, on the same day, attempted to export prohibited articles to Xiamen China otherwise than under and in accordance with an export licence, namely the 25 left hand drive private vehicles. They were convicted, following a trial before Judge Longley in the District Court. They have applied before this court for leave to appeal against conviction.

2. It was the prosecution case that on 25th June 1996, Customs officers boarded the vessel "Sheng Da" off Tsing Yi Island as it was proceeding on a course that would have taken it outside Hong Kong waters. Upon request, the captain produced a cargo manifest which set out that Item 21 consisted of six containers containing "Chemical Materials". These containers were unloaded, searched and found to contain 25 new left hand drive vehicles. They were Mitsubishi jeeps, Honda Accords, Toyota Camrys and Toyota Avalons. They were to a minor extent dismantled but all of the dismantled parts had been placed within the vehicles. They were clearly unmanifested cargo and were goods for the export of which an export licence was required by the Import and Export General Regulations.

3. The shipper of the goods was said to be Amigo Enterprises Company ("Amigo"). This firm is registered in the name of a Mr. Wong Long-ching. Mr. Wong gave evidence, however, that he had not registered the firm and had no connection with or knowledge of any such firm.

4. The vehicles had been purchased from AGA Motors. Mr. Chung Chun-choi ("Mr. Chung") of that firm gave evidence of negotiations he had had with the 2nd applicant which led to the sale of the vehicles. Twenty of them had been sold on 19th June and five on 21st. Mr. Chung said that A2 had requested that the contracts of sale be made out to Shing Fung Motors. There were eight such contracts. These set out the engine and chassis numbers of the vehicles involved. Payment for the vehicles was made by three instalments - one of $300,000, one of $2,000,000 and one of $1,910,000. The payments came from a savings account in the Chiyu Banking Corporation in the name of A3, of which she was the sole signatory. This account had been opened on 20th December 1995. A Mr. Au Wai-pang, a foreign exchange dealer, and a Mr. Tang Swee-leong, a businessman, both gave evidence that they had received payments from this account of $2,700,000 and $3,500,000, respectively, to settle trading debts of A1. Neither of these gentlemen knew A3. It was proved that A1 was the proprietor of a firm called Hua Yu. An issue before the court was whether A2 and A3 were acting for A1 and Hua Yu when purchasing and paying for the motor vehicles.

5. There was evidence that A3 had opened the door to the office of Hua Yu when the Customs officers arrived to make a search on 28th June 1996, and that she had been present in the office when Customs officers had raided the office in January 1996. Further, in December 1995, she was known to one of the witnesses, Mr. Yip Hon-ming, as a staff member of a firm called Kin Tai which was a firm through which, evidence indicated, A1 carried on business.

6. The trial judge was satisfied, and there is no challenge to this finding, that A3 was operating her bank account in Chiyu for A1.

7. A2 had told Mr. Chung to contact a Wong Tin-chuk, which is the name of A1, in connection with the payment for the cars and had given him a telephone number to use when making that contact. Mr. Chung said that he did ring the number and that the person contacted said that he was Wong Tin-chuk. The judge seemed to place some reliance on this evidence which was not, there being no voice identification, admissible against A1 but it was not of any real materiality in the outcome.

8. There was evidence that the vehicles were delivered to Shing Fung Motors which thereafter filed Dismantlement Notices with the Customs and Excise Department. These notices would lead the department to assume that the vehicles were to become vehicle parts and would thereafter be outside their import and export control scheme.

9. Fairview Shipping Co., acting on the instructions of Amigo, prepared the documentation for forwarding the vehicles to Xiamen. A clerk of that company, Mr. Lau Ho-man, gave evidence that he had prepared a document which he described as a Bill of Lading showing Amigo as the shipper and Xiamen Xiangyu Zhong Zhou Int. Economic Trade Company as the notifying party and the contents of the containers as chemical materials, and that he was given these particulars by the manager of Fairview. That person was not called to give evidence.

10. The company which handled the transport of the vehicles was the Xiamen Harvest Shipping Limited and a Mr. Ho Kwok-leung of that company gave evidence that Mr. Lau had booked space for the containers. He said that the manifest had been based upon the Bill of Lading sent to him by Mr. Lau.

11. The evidence against the applicants at this point can be summarized as follows: A2 had ordered the vehicles from AGA and had directed that they be delivered to Shing Fung. A3 had, from an account which was in her name but which was used for payment of business debts by Hua Yu, the proprietor of which was A1, paid for the vehicles. A1 and/or Hua Yu employed A3.

12. There was further evidence of documents seized by Customs officers when they searched the premises of Hua Yu on 28th June 1996. We do not intend to detail this evidence. It suffices to say that it indicated that Hua Yu had business dealings with Fairview, Shing Fung Motors and Xiamen Xiangyu Zhong Zhou. Mr. Lee, for the respondent, conceded that these documents did not establish complicity on the part of any of the applicants in the offences charged. They did no more than establish that Hua Yu had business dealings with the entities mentioned above.

13. Finally there was similar fact evidence of an incident in December 1995.

14. The judge was satisfied that the matters for resolution could be stated in the following way:

"The fact that all three defendants were responsible for the purchase of the 25 left hand drive vehicles does not in itself lead to the conclusion that they were the persons responsible for attempting to export these vehicles. The prosecution has to exclude the possibility that any other party was responsible for causing these goods to be shipped on a vessel headed for Xiamen, and in particular that Shing Fung, the purported buyer, or someone connected thereto, was responsible without the complicity of the defendants. The prosecution have endeavoured to do this by various types of evidence, including the following - it falls into four categories....."

Three of the categories were the documentary evidence to which we have referred, which was not in any way conclusive of complicity. The fourth and vital category was the similar fact evidence.

15. We pause here to examine the proposition which the judge considered fell for his resolution. We are unable to agree with his initial statement that it had been established that "all three defendants were responsible for the purchase of the 25 left hand drive vehicles". This stated the position much too broadly. It is true that A2 had ordered the vehicles but he had, it seems clear, done so acting for A1. It is also true that A3 had paid for the vehicles but, again, she had done so using an account which, although in her name, was used by A1 to conduct his business. A1 had, in this roundabout way, paid for the vehicles. The court should have been concerned not with who had paid for the vehicles but with who had control of them and whether an inference could be properly drawn that that person had given the instructions that the vehicles were to be shipped to Xiamen. The evidence as it stood indicated that ownership and control of the vehicles had passed to Shing Fung. Contracts of sale signed by AGA and Shing Fung were exhibited in which Shing Fung had signed with an authorized signature as the buyer. Whatever may have been the case as regards A1, there was no evidence that A2 and A3 had ever had control of the vehicles.

16. There was, as we have said, nothing of any significant evidential weight in the three categories of documentary evidence which the judge first examined. The case, as Mr. Lee conceded, rested upon the similar fact evidence.

17. This evidence established that on 6th December 1995, 32 new left hand drive vehicles, which included Mitsubishi Jeeps, Honda Accords, Toyota Camrys and Toyota Avalons, plus one Lexus, had been shipped to Xiamen in containers which bore false descriptions in the ship's manifest stating that the contents were "UP" and "MATER". The vehicles had been sold by Tai Hing, Success Dragon and AGA Motors. They had been ordered by Hua Yu and, as regards Success Dragon and AGA Motors, the order had come from A2. Payment for the vehicles ordered from Success Dragon had, in part, been made by A3 by way of a bank transfer. The vehicles had been delivered to Shing Fung on the request of A1 and A2 and Shing Fung had filed Dismantlement Notices with regard thereto.

18. On the first occasion on 9th December 1995, three days after the shipment, there had been a payment of HK$80,000 from the account of A3 to Lam Sau-chung, the proprietor of Shing Fung. The freight in that case was paid in cash by A3. It was not known who paid the freight on the second occasion. The shipper on the first occasion was Kin Tai Trading, the sole proprietor of which was a man known as Kon Yu-ngai, who was a manager employed by A1. The company chop and a copy of the Business Registration Certificate of that firm were found in A1's office in Hua Yu.

19. The offence charged took place six months later. The following similarities existed between the two transactions. The destination in both was Xiamen. In both there was a false description in the manifest. The vehicles were of the same type, except for the Lexus, although in different numbers. Some of the vehicles on the first occasion were purchased from AGA Motors. All were so purchased on the second occasion. A2 placed some of the orders on the first occasion and all on the second occasion. A3 made part of the payment on the first occasion and all of the payment on the second occasion. The payments were from her account and were made by way of bank transfer. The vehicles on both occasions were delivered to Shing Fung, and on both that company filed Dismantlement Notices.

20. The judge was asked by Mr. Lee to admit the similar fact evidence for the following purpose:

"So the similar fact evidence is admissible if you have the following views: First of all, if you identify D1 as one of the offenders, or if you go a little further, that D1 is the principal of D2 and D3. This is what I have set out in paragraph 18-21 of my written submission, but I don't think I need to repeat. The second relevance is about the knowledge of the offenders and the possible defence of innocent association. Shortly before the date of the offence of the previous case, that is 6th December 1995, these defendants were arrested, D1, D2 and D3."

21. The judge having heard argument, made the following ruling:

"The prosecution has sought leave to adduce evidence surrounding the seizure of nine containers on board a vessel allegedly leaving Hong Kong on 6 December 1995, containing unmanifested left-hand drive vehicles, and the subsequent arrest of all three defendants in connection with that matter. It is alleged that all three defendants were connected with that shipment and that the circumstances of that incident constitutes similar fact evidence probative of the charges now before this court.

Evidence of the previous criminal acts or misconduct of any defendant is, as a general rule, inadmissible in these courts, either on the grounds that it is irrelevant or unfairly prejudicial to an accused person. An exception to this general rule exists if the evidence falls within the category of similar fact evidence. In DPP v P [1991]2 AC 447 at 460, the Lord-Chancellor Lord Mackay said that:

'The essential feature of the evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused, in tending to show that he was guilty of another crime.'

I am satisfied that the evidence sought to be adduced by the prosecution falls within that principle. The similarities which have been pointed out to me between what is alleged to have occurred in the previous incident and what is alleged to have occurred in the current case, are potentially probative of the prosecution's identification of each of the defendants as being involved in the alleged attempted export of the vehicles in this case. Even if the activity of a particular defendant was not or could not be shown to be criminal in respect of the previous incident, evidence of the fact that he or she carried out acts in connection with a transaction that he or she knew had resulted in a criminal investigation and a charge of one of his or her co-defendants, is potentially probative of his or her state of mind and motive in carrying out the acts which the prosecution allege in the current case.

I'm satisfied that the prejudicial effect of such evidence does not outweigh its probative value. Indeed, as a professional judge, I am bound to disregard the prejudicial effect of any such evidence and consider only its probative value. I allow the prosecution's application."

22. It seems that the judge admitted the evidence, as he had been urged to, firstly, to identify A1 as the person who was in control of the vehicles and who gave the instructions to ship them and, secondly, as regards A2 and A3, to prove their "state of mind and motive in carrying out the acts which the prosecution allege in the current case".

23. A1 in early 1997, well before the trial of the present offence, was convicted of the December 1995 offence. Although A2 and A3 were charged with that offence, the prosecution in the outcome did not proceed against them. It was conceded by Mr. Lee that A2 and A3 must be treated as having no guilty involvement in that offence. This being so, we are in some doubt as to whether the evidence of that offence was properly admitted against them as similar fact evidence. It, or some of it, may, however, have been admissible against them if it was relevant to show their state of mind and motive in doing what they did in relation to the offence charged.

24. The judge set out the way in which he used the similar fact evidence to establish guilt on the part of A1 as follows:

"Dealing first with the case against the 1st defendant, I have to consider whether the only reasonable inference is that the 1st defendant was also party to the enterprise. Simply because the 1st defendant was party to the enterprise in December 1995 does not necessarily lead to the conclusion that he must have been party in June 1996. The 1st defendant himself, when informed by customs officers that they suspected he was involved in a smuggling case, said that he did not know about it. Shing Fung was named as the buyer of these vehicles, albeit on the instructions of the 2nd defendant. Contracts were made out to Shing Fung and were chopped with Shing Fung's company chop. Deliveries were made to Shing Fung, albeit again on the 2nd defendant's instructions. Personnel from Shing Fung arranged the delivery of the containers with the vehicles to the shipping company. I have to consider if there is a possibility on this occasion a person or persons within Shing Fung were attempting to export these vehicles without the complicity of any other person even though the 1st defendant had been party to the earlier enterprise.

In my view, the cumulative effect of the other evidence in the case make such a possibility untenable. At the time of the shipment in June, Mr. Lam Shau-chung and Miss Ma Pui-chung of Shing Fung, if not already charged with offences in respect of the December shipment, were under investigation. The 1st defendant had already been charged at the beginning of June. I find it an affront to common sense to suggest in such circumstances that someone connected with Shing Fung intending to smuggle the vehicles without the 1st defendant's complicity would acquire those vehicles through the medium of the 1st defendant's firm, use the same forwarding company that the 1st defendant's firm was habitually using at that time, and nominate as notifying party the same firm that had been nominated by the 1st defendant's firm in other dealings at that time. The unexplained payments to Shing Fung simply strengthen the obvious inference to be drawn from the evidence.

For similar reasons I am satisfied, on the evidence, that there is no reasonable possibility that someone connected with Shing Fung was involved in the enterprise with someone unconnected with the 1st defendant's business without the 1st defendant's complicity.

I am also satisfied, on the evidence, that there is no reasonable possibility that others in or connected with the 1st defendant's firm, in particular, the 2nd or the 3rd defendant who were involved in the purchase of the vehicles, might have been involved in the enterprise without the 1st defendant's complicity. The office of Hua Yu was very small. The 1st defendant was the proprietor. The 2nd and 3rd defendants had only shortly before been under investigation in relation to the December shipment. They would have known that the 1st defendant had been charged in relation to that matter. This enterprise involved purchase of vehicles at a cost of over $4 million which was effected from a bank account which I have found was controlled by the 1st defendant. On top of this, the 1st defendant himself was involved in the discussions with Mr. Chung of Amigo regarding payment for the vehicles.

I am aware that supplier of vehicles does not cause them to be taken out of Hong Kong simply by selling them to someone whom he knows will do, even if he knows that the other person intends to export them without a licence or not put them on the manifest and even if the supplier intends to facilitate such a purpose.

The evidence to which I have referred in relation to the 1st defendant goes much further than that and leads to the inevitable conclusion that he was a principal part to the enterprise to cause the vehicles to be smuggled out of Hong Kong.

I am satisfied that the only reasonable inference from the evidence is the 1st defendant was party to an attempt to export the 25 left-hand drive vehicles found on board the Sheng Da on 25 June 1996, and that those vehicles were both unmanifested and prohibited articles for the purpose of the relevant provisions of the Import and Export Ordinance, and I convict the 1st defendant of both charges."

25. As to A2 and A3, the judge said:

"I have borne in mind that both are of previous good character. I have considered the evidence against each of them separately.

There is nothing in the evidence concerning the transaction in December 1995 to suggest that either of them necessarily were aware that the 1st defendant intended to cause those vehicles to be smuggled out of Hong Kong, notwithstanding the fact that both played prominent roles in the transaction; the 2nd defendant, in negotiating the purchase of the majority of the vehicles, and the 3rd defendant, in collecting the shipping and collection orders and paying for the freight charges. Even if their involvement in that transaction was innocent, the nature of that transaction and their roles in it must have been constantly on their minds following their arrest and release on police bail for these offences.

Bearing in mind the size of Hua Yu's office, they cannot have failed to be aware that while their police bail was cancelled at the beginning of June, the 1st defendant had been charged in relation to that incident. Both the 2nd and the 3rd defendant were members of his staff in whom he placed considerable trust, the 2nd defendant, as a man he could trust to negotiate contracts worth several million dollars and who signed as an authorised signatory of his firm; the 3rd defendant as a woman who could be trusted as sole signatory to an account opened in her name in December 1995, but used by him to effect transactions worth many millions of dollars.

Bearing in mind my finding that the 1st defendant was a, if not the, principal party to the attempt to cause the 25 vehicles to be smuggled out of Hong Kong in June 1996, the important role that each of them (the 2nd and the 3rd defendants), had played in the purchase of the 25 vehicles involved, a purchase he was concerned to conceal, and the fact that the 1st defendant had been charged by Customs & Excise for similar offences in relation to the December incident which were still hanging over him, I do not believe that the 1st defendant would have risked involving either the 2nd or the 3rd defendant in this transaction in June 1996 as he did without securing their complicity. This is particularly so as both of them had, in different ways, been used to conceal the nature of the transaction; the 2nd defendant to inform Mr. Chung of Amigo (sic) that the purchaser was Shing Fung, and the 3rd defendant to conceal the identity of the person who paid for the vehicles by using an account opened in her name. In such circumstances they would have known that in performing the acts they did, they were joining an enterprise to smuggle left-hand drive vehicles out of Hong Kong.

In my view, it is unrealistic to suggest that they or either of them was simply putting others in a position to cause the vehicles to be taken out of Hong Kong. From amongst other things, their knowledge of the December transaction as well as what the 1st defendant must have told them, they would have known the nature of the enterprise upon which the 1st defendant was engaged in June. The only reasonable inference is that they joined in. Their acts were performed pursuant to the enterprise to cause the vehicles to be smuggled out of Hong Kong.

As with the 1st defendant, I am satisfied that the only reasonable inference from the evidence before me is that the 2nd and 3rd defendants were party to an attempt to export the 25 left-hand drive vehicles found on board the Sheng Da on 25 June 1996, and that those vehicles were both unmanifested and prohibited articles for the purpose of the relevant provisions in the Import and Export Ordinance."

26. The first ground argued by Mr. Cheng Huan S.C., with him Mr. Wong Man-kit, for A1 and A3, was that the judge had misdirected himself with regard to the burden of proof by saying that

"The prosecution has to exclude the possibility that any other party was responsible for causing these goods to be shipped on a vessel headed for Xiamen, and in particular that Shing Fung, the purported buyer or someone connected thereto, was responsible without the complicity of the defendants."

This was also the first ground argued by Mr. Dunn, for A2.

27. As we have already indicated, this proposition is open to criticism. It must be read with the statement which immediately preceded it:

"The fact that all three defendants were responsible for the purchase of the 25 left-hand drive vehicles does not in itself lead to the conclusion that they were the persons responsible for attempting to export those vehicles."

It seems to us that the judge misled himself by focusing upon what he termed "the responsibility" of all defendants for the purchase of the vehicles. We are not sure exactly what he meant by this. It was established that A2 had ordered the vehicles and that A3 had paid for them. The evidence, however, which the judge accepted, was that these actions had been done by them as employees of A1. The real issue was the identity of the person who had control of the vehicles at the time when the order was given that they be smuggled to Xiamen. It was, we are satisfied, wrong to lump A2 and A3 with A1 as the judge did. The approach, which was to exclude the possibility of involvement of others in the shipping of the goods, was one which could properly be taken, had it focused upon A1. It would, however, have been preferable simply to ask was there evidence to establish who was responsible for the shipping of the goods. What this court must ask is whether there was evidence upon which the judge could be safely satisfied that A1, and, indeed, A2 and A3 could be identified as the person or persons who were in control of the goods and from which, it could be inferred, that such person or persons must have given orders that the vehicles be smuggled to Xiamen.

28. In his second ground, Mr. Cheng Huan argues that the judge erred when he relied upon the three categories of evidence when convicting A1 and A3 as these established nothing more than ordinary business contacts between A1 and the other entities and had no probative value. We do not consider that the judge placed any real degree of reliance upon those three categories of evidence and, as we have already indicated, Mr. Lee concedes, correctly in our view, that for the prosecution to succeed it must rely upon the similar fact evidence.

29. Mr. Cheng Huan in his third ground argues that the judge erred in relying upon the similar fact evidence.

30. Mr. Dunn in his third ground pursues a similar argument. It is submitted that the similar fact evidence should not have been admitted because there was no sufficient evidence of similarity. The two questions which we must resolve are:

(i) Was the similar fact evidence admissible?

(ii) What, if admitted, could it properly be used to prove?

The general rule governing similar fact evidence is, in our view, correctly stated in Halsbury's Laws of England, 4th Edition Vol.11(2) at para. 1091 in the following terms:

"The traditional statement of the rule regarding the admissibility of similar fact evidence is that the prosecution may not adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. The mere fact that the evidence adduced tends to show the commission of other offences, however, does not render it inadmissible if it is relevant to an issue before the jury; and it may be so relevant if it bears upon the question whether the acts in question were designed or accidental, or to rebut a defence which would otherwise be open to the accused. In modern times the principle underlying the rule has been shown to be that evidence that the accused has been guilty of other offences is admissible if those offences share with the offence which is the subject of the charge common features exhibiting such an underlying unity or striking similarity that it would be an affront to common sense to assert that these features could be explained away on the basis of coincidence. In each case the trial judge has to consider whether, in the light of the principles stated above, the similar fact evidence is of sufficient probative value to be admitted."

31. We refer also to para.1093 which states:

"The traditional view of similar fact evidence was that it was admissible, by way of exception to the general rule of exclusion, to rebut a defence reasonably open to the accused, including a defence of mistaken identity.

It is now clear that this does not preclude the introduction of similar fact evidence where the defence case consists of a general denial of all the facts alleged to constitute the offence charged. Because the admissibility of similar fact evidence is determined simply by reference to its probative force, there can be no closed list of defences in relation to which such evidence is admissible. Thus the cases in which similar fact evidence has been admitted to rebut a defence, or to establish the identity of the accused, must be seen as illustrations of general principle rather than as fixed categories of admissible evidence."

Since the 4th Edition of Halsbury, the House of Lords has considered the question of similar facts in D.P.P. v. P., (1991) 2 AC 447. Lord Mackay at p.460 said:

"As this matter has been left in Reg. v. Boardman I am of opinion that it is not appropriate to single out 'striking similarity' as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another. Obviously, in cases where the identity of the offender is in issue, evidence of a character sufficiently special reasonably to identify the perpetrator is required and the discussion which follows in Lord Salmon's speech on the passage which I have quoted indicates that he had that type of case in mind.

From all that was said by the House in Reg. v. Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed and the authorities provide illustrations of that of which Reg. v. Straffen [1952] 2 Q.B. 911 and Rex v. Smith (1915) 11 Cr.App.R. 229, provide notable examples. But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle. Hume on Crimes, 3rd ed. (1844), vol. II, p. 384, said long ago:

'the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deposing to the same facts.'

Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree."

32. Mr. Cheng Huan argued that there was not sufficient similarity, even if the lesser test enunciated by Lord Mackay be applied, to allow the evidence to be admitted. We are satisfied that the similarities are such as to make the evidence admissible against A1 but not against A2 and A3.

33. Mr. Dunn submitted that, in circumstances such as this, such evidence could be admitted only to prove identity and that this was not a case in which identity was in issue.

34. We do not agree. It is true that identity was not really the issue. The prosecution was seeking to use the similar fact evidence to prove the participation of A1. Such use is supported by the decision in Rosemary Pauline West (1996) 2 Cr.App.R. 374. In that case, also "identity" was not the issue. It was sought to use the similar fact evidence to prove participation by Mrs. West in the killings which were carried out by her husband. We refer to the judgment of Lord Taylor at p.391, where he said:

"Next, it is argued for the applicant that the true issue at the trial was one of 'identity' and that the similar fact evidence relied upon by the Crown was inadmissible because it lacked the sort of characteristics mentioned by Lord Mackay in D.P.P. v. P. as required of evidence adduced for that purpose. The basic question for the jury's consideration on each of the seven counts was whether the prosecution had made them sure the applicant had participated in the killing. However, they had first to consider what sure inferences they could draw about the remains of the victims. Those inferences were not disputed. Next, they had to consider whether they were sure the applicant participated in the acts of violence and sexual abuse to which the deceased had been subjected. This raised the issue of identity to which the similar fact evidence was directly relevant. In this context there were beyond question features about the deceased victims and about the evidence given by the witnesses which were strikingly similar --for example, the sustained acts of violent sexual abuse, the gagging, the nudity and the participation of Frederick West himself in the cellar of the joint home.

Given the inferences, the similar fact evidence and the other evidence to which we have referred, the jury were entitled in our judgment to conclude that the applicant had participated in the acts of violence and sexual abuse to which the deceased victims had been subjected. The jury were equally entitled to conclude that that evidence illuminated the circumstances which preceded the deaths. It fell squarely within the criteria identified in D.P.P. v. P. and was therefore properly admitted." (Emphasis supplied.)

35. For these reasons, Lord Taylor was satisfied that the evidence was admissible.

36. He later turned to deal with the use to which the evidence could properly be put, saying, at p.396:

"It must have been obvious to the jury that the evidence went to establish the applicant's participation in the conduct in question and, by inference, her participation in the seven murders involving gags, tape and bindings, and that it was not available for any other purpose." (Emphasis supplied.)

37. The evidence was clearly used to prove not identity, which was never really an issue, but participation in the murders. The similar fact evidence in the present case stands on the same footing. It is evidence from which an inference could be drawn that A1 participated in the smuggling of the vehicles and, indeed, that it was he who gave instructions that they be shipped to Xiamen.

38. We bear in mind that A1 gave no evidence and are satisfied that the judge could properly hold that the similar facts led to a compelling inference of the involvement of A1. The similar fact evidence showed such a similarity of fact with the offence charged that, to use the words of the citation from Halsbury, "it would be an affront to common sense to assert that these features could be explained away on the basis of coincidence". There is, therefore, as regards A1 no merit in the contention that the similar fact evidence was not properly admitted.

39. As regards A2 and A3, we are, however, not so convinced. Firstly, it was not, as regards those two applicants, in the strict sense, similar fact evidence at all. They were never charged with the offence of December 1995 and it was never proved that they had been parties thereto. The prosecution, while asserting that it could be admitted against them as similar fact evidence, suggested that its use be limited to establishing "the knowledge of the offenders and the possible defence of innocent association". Could this evidence, even though not similar fact evidence, be admitted and used for that purpose? The trial judge said:

"Even if their involvement in that transaction was innocent, the nature of that transaction was that their roles in it must have been constantly on their minds following their arrest and release on police bail for these offences.

Bearing in mind the size of Hua Yu's office, they cannot have failed to be aware that while their police bail was cancelled at the beginning of June, the 1st defendant had been charged in relation to that incident."

40. He went on to say:

"Bearing in mind my finding that the 1st defendant was a, if not the, principal party to the attempt to cause the 25 vehicles to be smuggled out of Hong Kong in June 1996, the important role that each of them (the 2nd and the 3rd defendants), had played in the purchase of the 25 vehicles involved, a purchase he was concerned to conceal, and the fact that the 1st defendant had been charged by Customs & Excise for similar offences in relation to the December incident which were still hanging over him, I do not believe that the 1st defendant would have risked involving either the 2nd or the 3rd defendant in this transaction in June 1996 as he did without securing their complicity. This is particularly so as both of them had, in different ways, been used to conceal the nature of the transaction; the 2nd defendant to inform Mr. Chung of Amigo (sic) that the purchaser was Shing Fung, and the 3rd defendant to conceal the identity of the person who paid for the vehicles by using an account opened in her name. In such circumstances they would have known that in performing the acts they did, they were joining an enterprise to smuggle left-hand drive vehicles out of Hong Kong.

In my view, it is unrealistic to suggest that they or either of them was simply putting others in a position to cause the vehicles to be taken out of Hong Kong. From amongst other things, their knowledge of the December transaction as well as what the 1st defendant must have told them, they would have known the nature of the enterprise upon which the 1st defendant was engaged in June. The only reasonable inference is that they joined in. Their acts were performed pursuant to the enterprise to cause the vehicles to be smuggled out of Hong Kong."

41. In short, the judge was satisfied that the evidence could be used to establish that they must have been aware of the likelihood that the A1 was committing an offence in June and that he must have told them "to secure their complicity" in the true nature of what he was doing. We cannot agree that such inferences could be properly drawn. In June 1996, A1 had not been convicted of any offence. He was in fact denying that he had committed any offence. It was not shown that A2 and A3 had any guilty involvement in the offence of December 1995. While it may be that A1 might have told them what he was doing, it seems to us that there is a real possibility that he might have gone on concealing from them that he was involved in any criminal offence. Given the use made of this evidence we are satisfied that their convictions were neither safe nor satisfactory. It is not necessary, therefore, to consider further the arguments that were advanced on their behalf.

42. We now turn to the further grounds that were argued in relation to A1.

43. Mr. Cheng Huan submitted that there was no evidence to justify the judge's finding that he had used A2 and A3 to conceal the true nature of the purchase of the vehicles. He submits that A2 openly purchased the vehicles as the agent of A1 and that A3, without any attempt at concealment, paid for the vehicles using an account which was regularly used by A1 for the payment of its business transactions. This is true but there were unusual features of such payments. The use of the personal account of an employee for her firm's business transactions is far from usual. However that may be, the observations criticized were made by the judge when he was dealing with the case against A2 and A3 and were not used to establish guilt of A1.

44. It is further argued that the judge was wrong when he made the following finding:

"The inference that it was the 1st defendant who had paid for the 25 cars was still further reinforced by the evidence of Mr. Chung Chun-choi that after the 2nd defendant had told him to contact another man called Wong Tin-chuk in connection with payment for the cars, he had spoken to a man on the telephone on more than one occasion using the same telephone number used by the 2nd defendant and that the person he was speaking to had confirmed that he was Wong Tin-chuk."

and:

"I am satisfied that Wong Tin-chuk with whom Mr. Chung was speaking in connection with the payments for these 25 vehicles was the 1st defendant."

It is submitted that there was no evidence to establish that Mr. Chung had ever spoken to A1 as he was unable to identify the voice of the person as that of A1. We are satisfied, as we have already indicated, that this evidence should not have been used as it was by the trial judge and that he misdirected himself in this regard, but it was not a matter in the outcome of any materiality as there was no issue that A1 had, through A3, paid for the cars which had been ordered by A2.

45. It is finally submitted that the judge was wrong to have excluded the possibility that someone in Shing Fung might have ordered the vehicles to be exported. As we have already indicated, the approach of the judge whereby he sought to exclude the possibility that persons other than the applicants were responsible for the export of the vehicles is not one which we would have used but the question for resolution by us is whether there was evidence from which an irresistible inference could be drawn that A1 had directed that the vehicles be taken to China. As we have indicated, we are satisfied that there was such evidence.

46. The application of A1 is refused. The applications of A2 and A3 are allowed. The hearing of the applications are treated as the hearing of the appeals, the appeals are allowed and their convictions are quashed.