HKSAR v. LAM MAN SHING also known as LAM WAI KUEN

CACC 213/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 213 OF 2014

(ON APPEAL FROM DCCC 1014/2013)

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J U D G M E N T

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Hon Pang JA (giving the judgment of the court):

1. On 27 May 2014, before Judge Dufton in the District Court, the appellant[1] and his co-accused[2] were convicted after trial of one joint charge of ‘fraud’, contrary to section 16A of the Theft Ordinance, Cap 210. They were both sentenced to 3 years’ imprisonment. Aggrieved, the appellant applied for and was, first, granted bail pending appeal against conviction (30 September 2014, Yuen JA) and, later, leave by the single judge to appeal against the same (20 May 2015, McWalters JA). Having heard the appeal in an adjourned hearing on 5 January 2016[3], we reserved our judgment. That judgment we now deliver with reasons.

THE ALLEGATION [4]

2. The allegation was that between December 2010 and 18 January 2011, D1 and the appellant falsely represented to two prospective buyers that a plot of land in Man Kam To, Sheung Shui was for sale and that D1 was authorised by the owner of this land to deal with matters in relation to the sale; and that, as a result, the prospective buyers were induced into issuing, in D1’s favour, a cheque for $500,000 as deposit for the purchase price of the land. 

THE PROSECUTION CASE

3. The original owner of the land concerned was a person by the name of Suen Kwai Lin.  He passed away intestate on 24 June 1967.  But it was not until 3 December 2010 that Letters of Administration were granted by the High Court to his son, Suen Fu Wai (“Mr Suen”[5]). This, Mr Suen had achieved through the help of D1, an indigenous inhabitant of the New Territories whom a trusted friend, Kong Sin Tit (nicknamed “Tit Gor”[6]) had introduced him to for precisely that purpose.

4. In the same month (December 2010), in engaging D1’s help in the further matter of claiming compensation, part of the land having been resumed by the government for public usage, Mr Suen signed five to six authorisations authorising D1 to act on his behalf. Pre-typed, these authorisations were all made and provided by D1, and were absent of any reference to the selling of the land.  Their numbers were explained by D1 as being necessary for various unspecified follow-up actions.

5. The appellant made Mr Suen’s acquaintance in 2009.  He was a licensed estate agent with a property agency, Uni-Power Consultants Limited (“Uni-Power”).  He met Mr Suen at a tea gathering where D1 and Mr Kong were both present.

6. In late 2009 / early 2010[7], the appellant also met Wong Hon Sun (“Mr Wong”[8]) and Ho Yuet Ming (“Mr Ho”[9]) who, upon further contact, expressed an interest in the land in question.  This led to another meeting in December 2010 (date unspecified)[10], during which D1 was introduced by the appellant as someone who knew the owner of the land and who was able to act as the owner’s agent in the sale of the land.

7. To bring the point home, D1 had produced for Mr Wong and Mr Ho’s benefit an authorisation bearing Mr Suen’s signature (Exhibit P1).  With the exception of the “remarks” section, which authorised D1 to sell the land, this document was in almost every other respect identical to the authorisations that Mr Suen had otherwise signed. 

8. The prosecution case was that this authorisation was forged by adding words into the “remarks” section which Mr Suen had left blank.  It was the prosecution case that Mr Suen had not consented to and was unaware of any land sale.  The most that Mr Suen had ever said to D1 (when D1 raised the topic) was that[11]: (a) sooner or later the government would resume the land; (b) when the time came, he would discuss with his many siblings; (c) the discussion would not be easy; (d) if the price was right, they would sell; (e) if they did sell, he (Mr Suen) would let D1 handle the sale[12].

9. On 17 January 2011, for an agreed price of $5.2 million, a Provisional Agreement for Sale and Purchase (“PS&P”) was signed in respect of the land.  The signatories were Mr Wong on behalf of Power Place Development Limited (“Power Place”), the company Purchaser through which he and Mr Ho operated; D1 on behalf of Mr Suen, the Vendor; and the appellant on behalf of Uni-Power, the stated Agent for both Vendor and Purchaser. 

10. Mr Ho on behalf of Power Place also signed an agreement to pay a consultant’s fee at “$30 per square foot” to D1 on successful completion of the purchase, which the appellant witnessed. 

11. As a deposit for the purchase, Mr Wong wrote out a cheque in the sum of $500,000.  At D1’s assurance that he was authorised to accept payment, Mr Wong made the cheque in favour of D1.

12. Formalities were concluded on the following day (18 January 2011) when the appellant returned the “pink copy” of the PS&P to Mr Ho. By then, forged signatures purporting to be that of Mr Suen had been appended to it.  The deposit, however, never reached Mr Suen. Mr Suen remained in the dark about the transaction and the sale and purchase failed to complete on its scheduled date of 30 April 2010.

13. When chased, D1 and the appellant gave various excuses for the failure to complete, putting the blame on, amongst other things, an alleged disagreement between Mr Suen and his siblings who now co‑owned the land.  In the end, an undertaking dated 30 May 2011 (Exhibit P5) was given by D1 to (a) refund the deposit and (b) pay an equivalent amount of compensation, as per clause 8 of the PS&P.

14. When the first of D1’s cheques became dishonoured, and things did not work out according to plan, D1 and Mr Ho entered into further negotiations.  Eventually, and with the service of a “middleman”, a final settlement in the sum of $650,000 was reached on 15 September 2011.  On receipt of the full amount of this money in cash, Mr Wong and Mr Ho were appeased and took no further action in relation to the matter.

15. Mr Suen was unaware of what had taken place until, sometime before Tit Gor’s death[13], Tit Gor showed him Exhibit P7 (the only other forged authorisation produced in the case).  As Tit Gor said that he had punished D1 by “giving him a few punches”, Mr Suen was content not to do anything about it.  In fact, nothing else happened in the case until the ICAC arrested D1 and the appellant on 7 and 11 January 2013, respectively. It was not revealed in the evidence at trial as to who exactly it was that reported the matter to ICAC.   

16. Evidence was adduced from the Estate Agents Authority (“EAA”) in the form of two witnesses.  They were Luk Kwok Ho (“Mr Luk”[14]) and Li Tak Cheung (“Mr Li”[15]).  Mr Li, in particular, testified on the regulatory regime under which licensed estate agents should conduct their business.  The Practice Regulations[16], EAA Code of Ethics & Guide to Estate Agents Ordinance and EAA circulars were relied on to assist the judge in, principally, assessing the case of the appellant.

THE DEFENCE CASE

Regarding D1

17. D1 elected to give evidence.  What he said can be summarised as follows:

(a) As an occupation, D1 specialised in handling land-related matters in the New Territories.

(b) He had known Tit Gor for some 20 years; and he trusted him.

(c) Through Tit Gor, he was introduced to Mr Suen who enlisted his help in (i) securing succession of title in respect of the land, (ii) seeking compensation for the part of the land that had been resumed and (iii) selling the land uponacquiringlegal title[17].

(d) The time then was 2008.  Mr Suen had said that if he(D1) encountered any problem, he could ask Tit Gor for a decision[18].

(e) D1 was not the maker of Exhibit P1 (the forged authorisation).  It was given to him by Tit Gor in late December 2010 for putting the land up for sale. Much earlier on, for applying for succession and, thereafter, to seek compensation, Mr Suen had given him two other authorisations the “remarks” section of which wereblank   (Exhibit P6 being the one for claiming compensation).  Those were the only authorisations that D1 had ever been given[19]. 

(f) Tit Gor was the only person whom D1 would contact regarding the land sale.  He would not contact Mr Suen for that purpose[20].

(g) D1 had known the appellant for over 10 years.  He knew the appellant was an estate agent.  He had had dealings with him in the sale and purchase of “small houses” in the New Territories.

(h) Mr Suen, Tit Gor, D1 and the appellant would sometimes get together for socialising.  On those occasions, the topic of succession and eventual sale of the land would arise in Tit Gor and Mr Suen’s conversation[21].

(i) When the Letters of Administration were granted, Tit Gor specifically told D1 that D1 could proceed with selling the land[22].

(j) When D1 signed on the PS&P, he signed as a “representative of the landowner”[23]. It was Tit Gor’s idea that the cheque deposit be made payable to D1 – the owner’s representative[24].

(k) Notwithstanding D1’s authorisation, the appellant raised the point that Mr Suen, ie the landowner’s signature would still be required.  It was the appellant who asked Mr Wong to post‑date his cheque for one day to 18 January 2011, so that no money would become transferrable before Mr Suen signedon the PS&P[25].

(l) D1 brought the PS&P to Tit Gor, who returned it the same evening (17 January 2011) – then appended with Mr Suen’s signatures.  The appellant was tasked to bring the “pink copy” of the document to Mr Ho on the following day[26].

(m) For their work put in since 2008, both D1 and Tit Gor thought it appropriate for them (D1 and Tit Gor) to charge the Purchaser a consultant’s fee[27].  Nothing was done to inform Mr Suen of this fee ($30 per square foot)[28].

(n) D1 cashed the cheque deposit of $500,000.  Of that sum, $450,000 was passed to Tit Gor who explained that he (Tit Gor) would “handle the matter with Mr Suen”.  The rest was kept by D1 as (i) reimbursement of the legal fees spent on securing succession and (ii) D1’s “wages for working for Tit Gor”[29].  D1 did not ask Mr Suen if he could keep the money[30].

(o) When there was no sign of a successful completion, D1 asked Tit Gor to ask Mr Suen to try his best to convince his siblings.  When that failed, and the transaction fell through, Mr Ho wanted the matter settled according to clause 8 of the PS&P[31].

(p) D1 agreed to comply with clause 8 because that was what Tit Gor told him[32].  He agreed to give the Purchaser a personal undertaking in the same terms (Exhibit P5) because Tit Gor said he (D1) had “signed before”[33].  At no time did D1 seek to contact Mr Suen at that stage[34].

(q) The bulk of the deposit having gone to Tit Gor, D1 looked to Tit Gor for money to pay the Purchaser compensation.  Yet, Tit Gor failed to transfer sufficient funds into D1’s bank account so D1’s cheques became dishonoured or questionable[35].

(r) In the end, it was some third person who engaged Mr Ho in direct negotiation.  Although D1 was informed of the outcome of that negotiation, he was not a contributing party to the final settlement of $650,000.[36].  He had not tried to find out from Tit Gor the identity of that third person[37].

(s) By clause 10a of the P&SP, Uni-Power was entitled to a compensation of $100,000 from the defaulting party.  The appellant did not ask D1 for that compensation. What he asked, enquiringly, was for the estate agent’s commission[38].

(t) Tit Gor had never assaulted D1.  D1 could not think why Tit Gor should tell Mr Suen that he had hit him[39].

(u) D1 met Mr Suen both before and after 30 April 2010 (the completion date).  He did not however update Mr Suen on the land sale, nor did he speak to him about the failed transaction[40].

(v) D1 denied conspiring with the appellant in a scam to defraud Mr Wong and Mr Ho[41].

18. Contradicting Mr Suen on all the salient points, D1’s version of events was defensive as against Mr Suen’s accusation.  It also deflected most of the suspicion and blame towards Tit Gor, the dead witness. Either way, D1’s case was that he had no idea as to whether and why they were lying – Mr Suen, Tit Gor or both (his oft-repeated answer being “I don’t know”[42]).  At no time did D1 implicate the appellant in any way.

Regarding the appellant

19. The appellant did not give evidence.  His case was that he had played no part in the fraud.  It is also worth noting what his counsel was able to establish from the main prosecution witnesses through cross‑examination:

(a) Mr Wong –

(i) Although Mr Wong and Mr Ho had already expressed an interest in the land in their first encounters (see paragraph 6 above), the appellant did not claim to have access to its owner or his representative.  It was only in the December 2010 meeting that he introduced them to D1 as the landowner’s agent.  The appellant himself had never claimed to have any power of attorney[43].

(b) Mr Ho –

(i) In their first encounters in late 2009 / early 2010, he was already aware that the appellant was an estate agent working for Uni-Power[44].

(ii) The appellant never claimed to represent the landowner, or that he had a power of attorney to do so[45].

(c) Mr Suen –

(i) He did not know the appellant well.  But he did have the impression that the appellant was working as an estate agent[46].

(ii) On one and one occasion only, the appellant had suggested to him that he (Mr Suen) should sell the land.  That happened in December 2010, not long after Mr Suen had obtained the Letters of Administration.  D1 was present.  He rejected the appellant outright[47].

(iii) However, he (Mr Suen) did tell D1 and the appellant that, in the future, all questions about the land could be directed to Tit Gor[48].

THE JUDGE’S VERDICT

Regarding D1

20. In his own words, the judge had “no hesitation in rejecting D1’s evidence”[49].  For instance, he found it incredible for Exhibit P6 to have originated from Mr Suen (see paragraph 17(e) above).  He reckoned that if Mr Suen was the maker of that authorisation, Mr Suen would not have typed D1’s Identity Card number into the document whilst filling his own Identity Card number in by hand[50].  Similarly, the judge found it incredible for D1 not to have mentioned the land sale to Mr Suen when they met (see paragraph 17(u) above).  He could see no reason for such reticence even if D1 was receiving all his instructions from someone else, namely Tit Gor[51].  These and other compelling reasons that the judge gave[52] have led us to the conclusion that he was right to reject D1’s version of events.  It was correct for the judge to accept the prosecution evidence.

Regarding the appellant

21. The judge commenced his analysis on the subject with the words, “D2 is a licensed sales person”.  Indeed, his analysis was based almost entirely on the disparity between the appellant’s conduct and EAA standards – the core criticism being the appellant’s failure to confirm the sale with Mr Suen in person.  For an appreciation of the emphasis that had been placed on this deficiency, the relevant part of the judge’s Reasons for Verdict is reproduced hereunder in full:

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

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

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

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

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

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

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

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

GROUND OF APPEAL

The ground

22. Counsel for the appellant, Mr Cheung, raises only one ground[53].  Subject to the adoption of certain names and acronyms, the ground in its perfected form reads as follows:

“(a) The learned judge failed to resolve the essential question, which was: can one be sure that the appellant was complicit in the fraud perpetrated by D1 in view of the alert raised by the appellant in respect of his reminding Mr Wong (the 1^st prosecution witness) to make sure that the landowner executed the P&SP before transferring any monies to D1? Such would urge the whole of the evidence be taken into account in deciding the question whether the appellant had any knowledge of the falsity of the authorisation (Exhibit P1).

(b)  The reminder point is such a questionable limb which is sufficient to raise a lurking doubt as far as the aforesaid conviction of the appellant is concerned.”

Evidential basis

23. The “reminder point”, as it has come to be known in this appeal, has, for its factual support, not only the evidence of D1 (see paragraph 17(k) above) – the same concession was made by Mr Wong whilst under cross-examination by D1’s counsel[54].  It can, therefore, safely be taken as a fact that the appellant did utter that reminder at the time of signing the PS&P[55].

The judge’s approach

24. The reminder point is not a matter which had escaped the judge’s attention. This is how he approached it in his Reasons for Verdict:

“103. In reaching this finding [ie there was no genuine land sale] I have carefully considered the evidence of Mr Wong that D2 said not to transfer the money for the deposit cheque until Mr Suen had signed the Provisional Agreement for Sale and Purchase. Mr Ho also said the reason for the post-dated cheque was because the vendor had not yet signed. In oral submission [D2’s counsel] submits this shows D2’s honesty. [D1’s counsel] submits that it is contrary to common sense for a joint defendant to say this which would delay and obstruct the common intention to defraud Mr Wong and Mr Ho ….

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

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

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

25. In short, the judge was maintaining his position that, there being a requirement to cross-check the authenticity of the sale against the vendor, the appellant’s unexplained departure from this practice had left the court with no doubt as to his knowing participation in the fraud.  It was, the judge found, not a position that the reminder point could undermine.

RESPONDENT’S REPLY

26. Not unlike the judge, Ms Lo for the respondent submits that the reminder point was but one piece of evidence which, on deeper analysis, may not necessarily give rise to an interpretation favourable to the appellant.

27. Not unlike the judge, she ascribes much importance to the regime regulating the conduct of estate agents, the appellant’s non‑compliance and the adverse inference that may consequentially be drawn against him.

28. Not unlike the judge[56], she relies on the fact that the appellant had never made any demand for compensation under clause 10a of the PS&P, to which Uni-Power would have been entitled (see paragraph 17(s) above).

29. Ms Lo stresses the point that, not long after the granting of the Letters of Administration, having been rejected by Mr Suen to put the land on sale (see paragraph 19(c)(ii) above), the appellant nevertheless proceeded to introduce D1 to Mr Wong and Mr Ho as someone who could act as the owner’s agent in the sale (see paragraph 6 above).

30. Miss Lo stresses the point that the appellant did not give evidence, and that, as a result, there was nothing to gainsay the prosecution allegation against him. 

CONSIDERATION

31. As is apparent from the concession implied in the perfected ground of appeal, the reminder point is not the be all and end all of this appeal.  It cannot be, because, as mundane as it sounds, the invitation to post-date the cheque deposit could simply be a confidence booster and/or device for the fraudster to allow himself time to legitimise the PS&P with the forged signatures of the Vendor.  Unless such a step was taken, solicitors acting for the Purchaser would quickly become alarmed.

32. As the perfected ground of appeal implies, the appellant’s reminder, with its possibly exculpatory interpretation, is just an example of how certain evidence may be regarded differently.  It anticipates the broader question of whether the prosecution case as a whole was sufficiently cogent to convict the appellant.

33. A case in point is the appellant’s non-action as regards clause 10a of the PS&P.  Far from it that everything was done at arm’s length, or was expected to be so done, the relationship between Mr Suen, Tit Gor, D1 and the appellant was clearly beyond that which is strictly professional.  As between particular individuals, the relationship was one of long and trusting friendship. 

34. For instance, it was Mr Suen’s evidence that: (a) Tit Gor was a friend of his of “many, many years”[57]; (b) Tit Gor played an “important role” in the succession matter, giving him advice and liaising with and delivering documents to D1 on his behalf[58]; (c) Tit Gor and D1 called each other “godfather” and “godson”, and were very close[59]; (d) through Tit Gor, he (Mr Suen) and D1 had become “family friends” in that D1 knew his family and D1’s girlfriend had bought watches from his watch shop[60].

35. None of that would have escaped the appellant, who, personally, had a decade-long association with D1 involving the somewhat specialised trade of buying and selling “small houses” in the New Territories[61].  Given that, and the pressure which co-existed for D1 and/or Mr Suen to refund and compensate the Purchaser under clause 8 of the PS&P, we are not persuaded that an adverse inference can be drawn against the appellant on account of his failure to invoke clause 10a.  It could be that the appellant just wanted to keep things amiable.

36. Moreover, even if an adverse inference was drawn, it could only be that, by the date that clause 10a was triggered, the appellant had already come to know that Mr Suen was not a party to the land sale.  On its own, the appellant’s failure to invoke clause 10a does not allow of an inference that he knew from the beginning that Mr Suen was unaware of the transaction, and that the appellant was a party to a joint enterprise with D1 to defraud Mr Wong and Mr Ho.  As a piece of circumstantial evidence, it is of very limited probative value. 

37. We also take issue with Ms Lo about the appellant being inconsistent in what he knew and what he told others (see paragraph 29 above).  For this point to be substantiated, the exact dates of the following two conversations are crucial.  Calling Mr Suen’s expressed rejection to putting the land on sale “Conversation A”, and the appellant’s introduction of D1 to Mr Wong and Mr Ho as the owner’s sales agent “Conversation B”, Ms Lo’s point will only be borne out if the interval between the two is of such a short duration as to clearly indicate duplicity. 

38. As it is, none of the above witnesses could testify to the dates of these conversations with precision.  As the evidence stands, Conversation A could have taken place any time after 3 December 2010 (the date of the Letters of Administration)[62], whereas Conversation B could have taken place any time during the same month, including the 31^st (the meeting being on an unspecified date)[63]. 

39. With a possible gap that wide, it cannot be said that the duplicity point is made out.  Within that timeframe, it is not unthinkable that upon seeing a forged authorisation by D1, the appellant was convinced that Mr Suen had had a change of heart.  As Mr Suen had personally testified (see paragraph 34 above), he, Tit Gor and D1 did enjoy a certain trust, even deference, between them.[64]  It could be that which convinced the appellant.

40. With the above issues falling away, the only remaining question is the probative value of the evidence that the appellant’s conduct fell below EAA standards.  In his effort to traverse the judge’s view and conclusion on the subject, Mr Cheung had resorted to certain principles of agency law which, if applicable, would disqualify the appellant from being the Vendor’s agent, thus absolving him from the requirement of due diligence as regard’s the Vendor’s identity and intention.

41. We do not think such an approach is helpful. There being (a) no dispute as to the accuracy of the content of the PS&P at trial, and (b) a clear assertion by Uni-Power that it was Agent for both Vendor and Purchaser (see clause 16 of the document[65]), we take the view that, by the very act of signing, the appellant had assumed the position and responsibilities of the Vendor’s agent through Uni-Power.  Whatever the correct position in law, such would be the appellant’s subjective understanding of the situation, as indeed it would be of Mr Wong and Mr Ho.

42. That said, the appellant’s failure to strictly comply with EAA standards has to be considered in the context of this particular transaction; a transaction in which the participants all knew one another and which involved, in D1 and Tit Gor, persons who appear to have been well known New Territories personalities especially as regards land matters.

43. After much reflection, we are of the conclusion that an unwarranted degree of significance has been placed on the appellant’s non‑compliance, to the neglect of two important opposing considerations, namely (a) the fact that Mr Suen was known to the appellant personally, and (b) the trust that D1 must be able to generate so far as it concerned the bona fides of his authorisation, given his close relationship with Tit Gor and Mr Suen. These are matters that could cause the appellant to assume that D1 truly was authorised by Mr Suen.  These are matters that the judge should have considered but did not.

44. As Ms Lo highlighted, the appellant, as was his right, chose not to testify.  For our part, we are prepared to say that, without any explanation, the appellant’s conduct is suspicious, perhaps even highly suspicious.  Nevertheless, suspicion does not amount to proof beyond reasonable doubt.  It cannot be discounted that the appellant simply believed D1.

DISPOSAL

45. For the above reasons, we allow the appellant’s appeal, and set aside his conviction and sentence.

[1]  “D2”, as he was known in the trial.

[2]  “D1”, as he was known in the trial.

[3]  Adjourned from 7 October 2015 when transcripts of various witnesses were ordered to be included in the Appeal Bundle.

[4]  This section, and the one that comes after it, are based on our judgment on D1’s appeal against sentence dated 16 October 2015.

[5]  The 3^rd prosecution witness.

[6]  Mr Kong passed away in December 2011 and was not available as a witness.

[7]  Appeal Bundle, pages 265Q and 290T.

[8]  The 1^st prosecution witness.

[9]  The 2^nd prosecution witness.

[10]  Appeal Bundle, page 266M.

[11]  Mr Suen did not specify when and in what year this conversation took place.  But it seems clear that it was a two-party exchange and that the appellant was not present.

[12]  Appeal Bundle, pages 132P – U; pages 133F – S.

[13]  See footnote 6.

[14]  The 4^th prosecution witness.

[15]  The 5^th prosecution witness.

[16]  Made under the Estate Agents Ordinance, Cap 511.

[17]  Appeal Bundle, pages 343O – 344N.

[18]  Ditto.

[19]  Appeal Bundle, pages 344P – 347E; pages 122H – Q.

[20]  Appeal Bundle, pages 382R – 383D.

[21]  Appeal Bundle, pages 349N – 350D.

[22]  Appeal Bundle, pages 347F – I.

[23]  Appeal Bundle, page 350R.

[24]  Appeal Bundle, pages 352A – G.

[25]  Appeal Bundle, pages 352H – K; pages 376M – O.

[26]  Appeal Bundle, pages 352N – U.

[27]  Appeal Bundle, page 353D; pages 388R – S.

[28]  Appeal Bundle, page 388P.

[29]  Appeal Bundle, pages 353R – 357G.

[30]  Appeal Bundle, page 388G.

[31]  Appeal Bundle, pages 357H – S.

[32]  Appeal Bundle, page 384K.

[33]  Appeal Bundle, pages 385D – F.

[34]  Appeal Bundle, pages 383G – J.

[35]  Appeal Bundle, pages 357T – 358G.

[36]  Appeal Bundle, pages 358Q – 359F; pages 386G – T.

[37]  Appeal Bundle, pages 389A – B.

[38]  Appeal Bundle, pages 394N – 395J.

[39]  Appeal Bundle, page 396S.

[40]  Appeal Bundle, pages 397H – Q.

[41]  Appeal Bundle, page 395K.

[42]  See, for example, the first stretch of his cross-examination: Appeal Bundle, pages 364 – 366.

[43]  Appeal Bundle, pages 289J – M.

[44]  Appeal Bundle, pages 310G – K.

[45]  Ditto.

[46]  Appeal Bundle, pages 176Q – 177H.

[47]  Appeal Bundle, pages 177L, 178E – H, 180E – L.

[48]  Appeal Bundle, page 178J.

[49]  Reasons for Verdict, paragraph 64.

[50]  Ditto.

[51]  Reasons for Verdict, paragraph 68.

[52]  For the purposes of this appeal, it is unnecessary to rehearse these reasons in full.

[53]  Mr Cheung did not partake in the trial, only in the appeal.

[54]  Appeal Bundle, pages 285N – 286L.

[55]  Mr Ho, who gave evidence after Mr Wong, did say that the cheque had to be post‑dated because the landowner’s signature was pending.  He did not specify it was the appellant who reminded them.  This took place in Mr Ho’s examination‑in‑chief.  No follow-up questions were asked by any party.  See Appeal Bundle, pages 293A – D.

[56]  This comes at the end of the judge’s analysis, at paragraph 101 of the Reasons for Verdict.  See under paragraph 21 of this judgment.

[57]  Appeal Bundle, pages 146B – C.

[58]  Appeal Bundle, pages 154E – P.

[59]  Appeal Bundle, pages 155C – I.

[60]  Appeal Bundle, pages 147I – P.

[61]  According to Mr Wong, the appellant operated in Fanling – a “very small area” – and was not difficult to find: Appeal Bundle, page 289F.

[62]  See paragraph 19(c)(ii) of this judgment.

[63]  See paragraph 6 of this judgment.

[64]  See also footnote 11 and paragraph 19(c)(iii) of this judgment.

[65]  There were a number of options: Agent for both Vendor and Purchaser; for Vendor only; and for Purchaser only.  The last two were crossed out, with the endorsement of the signing parties.