HKSAR v. ONONUJU LIVINUS AND ANOTHER

CACC 190/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 190 OF 2011

(ON APPEAL FROM DCCC1159/2010)

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BETWEEN

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JUDGMENT ON COSTS

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Deputy High Court Judge Wright (giving the judgment of the Court):

1.  On 19 January 2012 we granted the applicants’ applications for leave to appeal, treated the hearing as the appeal proper and quashed the conviction of the first applicant on Charge 1 and the second applicant on Charges 1, 2 and 3. We declined an application for the retrial of the second applicant. We indicated that we would hear any application there may be for costs once our reasons for allowing the applications had been made known. We furnished those reasons on15 February 2012.

2.  The first applicant subsequently sought an order for costs of the appeal only which was granted. A written request was made on 1 March 2012 on behalf of the second applicant for payment of her costs of both the appeal and the trial in the District Court. By letter dated 16 March 2012 the respondent indicated that it did not oppose the application for costs of the appeal but did oppose an order for costs of the trial on grounds set out in that letter - essentially that the second applicant had brought suspicion upon herself. The second applicant responded to those submissions by letter dated 17 December 2012.

3.  We made it clear in our Reasons for Judgment that the basis upon which the appeals were allowed was the inadequacy of the judge’s Reasons for Verdict: in particular, we could not be sure from those “superficial and inadequate” Reasons that the judge had not relied for the purposes of conviction upon what he perceived as lies told by both applicants; the judge had failed to give any indication at all that he had considered the specific elements of the offences against the applicants; there was no indication that the judge had considered, as he should have done in the context of this trial, whether the state of knowledge or belief of the two applicants may differ; the judge failed to consider whether there may have existed genuine business transactions between the applicants - which was specifically the second applicant’s case - in parallel with illicit dealings, which fatally flawed his sweeping categorization of all documents introduced by the defence as “fake”.

4.  In particular, we said:

42.  Apart from introducing those documents during the course of cross-examination of the first applicant, the second applicant had made copies of them available to the prosecution at a pre-trial review. The second applicant had also put up a series of photographs depicting the premises of her factory as well as piles of batteries in those premises bearing the trade name of the batteries apparently purchased by the first applicant: the first applicant confirmed that he had visited those premises on a number of occasions and seen the manufacturing process.

43.  The second applicant's case revolved around the existence of that business relationship. Whilst it was true, as the respondent submits, that the judge was not bound by the prosecution's view on aspects of the evidence, it was a matter of fundamental fairness that if the judge intends to take a different view from that of the prosecution, being a view which strikes at the core of a defence advanced on behalf of an accused person, he should give an indication to that accused to enable the issue to be addressed.

and

51.  The failure of the judge to address his mind to whether there was a difference between the different groups of documents and to make a finding, without warning, that all of the documents were false deprived the second applicant of a fair trial by depriving her of the opportunity to lead evidence supporting those documents. That unfairness extended to all three charges.

5.  The respondent, in opposing the application for costs of trial invited our attention to a number of facts concerning the conduct of the second applicant, either alone or in association with the first applicant, which he asserts to have brought suspicion upon herself. These may be summarised as being:

a)     companies owned by the first and second applicant shared the same business address and telephone number in China;

b)    they came together from the Mainland to open the bank accounts which later were used to effect the transfers of the moneys;

c)     during the period 11 to 17 December 2009 monies derived from fraud in the United States of America, totalling in excess of US$620,000, passed through those two accounts of which approximately 90% found its way to another bank account operated by a company of the first applicant in Japan;

d)    during that period a bank employee informed the second applicant of the fraud in the United States requesting a refund of the money which the second applicant refused, she asserting a genuine business relationship between her company and the first applicant;

e)     the circumstances as a whole remain suspicious in the light of entries on certain documents;

f)      the second applicant's company in Hong Kong had not filed any profits tax return with Inland Revenue Department, nor did it record employing anyone;  and

g)     the second applicant did not testify at trial, documents upon which she relied having been produced by her counsel during cross-examination of the first applicant.

6.  The second applicant submits that it was not open the respondent to rely on a number of the matters itemised as they were "... not something done in the process of the investigations ". With respect, that submission is misconceived. It is well established that:

“... the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time... [although]... generally speaking, the conduct most relevant to the matters under consideration must be the defendant's conduct during the investigation and at the trial:...”

( per  Litton PJ in TONG Cun-ling v HKSAR (1999) 2 HKCFAR 531)

7.  Whilst we recognise the force of the respondent's argument that, looking at matters in the round but in particular those articulated in 6(a), (b), (c) and (f) above, there are certainly aspects to the second applicant’s conduct which are of a suspicious nature superficially, we keep in mind that the second applicant did provide a comprehensive explanation when interviewed by the police and also furnished documentary material to them. We note, too, that the second applicant rejected the bank's request to repay to it moneys which had passed through her company's account (vide 6(d) above) on the basis that those were the proceeds of business transactions between her and the first applicant - a stance which she maintained throughout her interview and during her trial.

8.  We commented (§§ 32/33 of our Reasons for Judgment) upon the significant feature of one of the documents produced which contained the number of an account opened by the first applicant four days before that account in fact was opened but remind ourselves that the evidence was that that document had been produced by the first applicant and that was no evidence that the second applicant was aware of its existence.

9.  The matters set out in 6(g) above in our judgment did not serve to bring suspicion upon the second applicant.

10.  In the circumstances we see no justification for exercising our discretion so as to deny the second applicant the costs of the trial.