HKSAR v. WONG SHE WA

CACC 58/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 58 OF 1998

(ON APPEAL FROM DCCC 588, 590 and 591/1996)

----------------------

----------------------

J U D G M E N T

----------------------

Mayo J.A. (giving the judgment of the Court):

1. The applicant was originally charged with three offences of conspiracy to defraud officers of the Immigration Department and thirty charges of causing false statements to be made in documents furnished to an Immigration Officer, contrary to s.42(1) of the Immigration Ordinance, Cap. 115.

2. The conspiracy charges related to contracts of employment which were allegedly made by the applicant with three sub-contractors in relation to imported foreign workers recruited from the mainland. The workers were to work on the South Kowloon Expressway part of the Chek Lap Kok airport project.

3. Originally all three conspiracy charges were framed in a similar manner save for the relevant details of conspiracies.

4. The first charge reads:

"1st Charge

Statement of Offence

Conspiracy to defraud, contrary to Common Law.

Particulars of Offence

WONG She-wa together with Cheng Man-Ngok and others, on divers dates between the 20th day of October 1994 and the 27th day of December 1995, in Hong Kong and elsewhere, conspired together to defraud an officer or officers of the Hong Kong Immigration Department by dishonestly:-

(a) causing workers to be recruited from China to sign, and completing on their behalves, employment contracts purporting to show that the said workers would be employed to work in Hong Kong at the minimum salaries pursuant to clause 8 and other terms and conditions as stipulated in those contracts;

(b) submitting such contracts, or causing them to be submitted to an officer or officers of the Hong Kong Immigration Department for the purpose of obtaining employment visas for those workers;

(c) inducing an officer or officers of the Hong Kong Immigration Department to issue employment visas to those workers;

(d) failing to pay to the workers the minimum salaries pursuant to clause 8 and other terms and conditions of the employment contracts; and

(e) concealing such failures to comply with the terms and conditions of the employment contracts from the Hong Kong Immigration Department with a view to avoiding revocation of the relevant employment visas."

5. The three sub-contractors all pleaded guilty to the offences they were charged with. The prosecution then opted to proceed on the conspiracy counts rather than the thirty immigration charges against the applicant which were in the alternative.

6. The three sub-contractors gave evidence for the prosecution. PW17 Tse Fu Keung of the 3rd sub-contractor gave evidence to the effect that he did not have a criminal meeting of minds with the applicant until 11th March 1995. This being the case only particulars (d) and (e) of the charges could have been acted upon dishonestly. This being the case the Judge amended charge 3 by adding a 4th and 5th charge in the alternative so as to reflect this and also to take cognisance of the fact that it might have been the Labour Department rather than the Immigration Department which had been deceived by the applicant's misconduct.

7. The applicant pleaded not guilty of the charges in the District Court but after a trial before H.H. Judge Line was found guilty. The applicant now seeks leave to appeal from these convictions.

8. Judge Line has most helpfully set out the background to this case in his Reasons for Verdict.

"The Background

By 1994 the Hong Kong authorities had recognised a need to import labour in order that the new airport and connected infrastructure be built. A proportion of that labour came from the PRC and it is with some of them that this case is concerned.

The Hong Kong Immigration Department put in place standard procedures to ensure the orderly importation of such labour and to ensure that the workers were properly treated. They required the production of a written contract of employment (the 'Hong Kong contract') for each worker which included certain standard terms. One such term was the payment of a minimum wage, which varied from trade to trade and time to time. Another was that the wages be paid by autopay into a worker's bank account. In the absence of such a contract they would not grant the prospective worker a visa to enter Hong Kong. It was the responsibility of the Hong Kong Labour Department to ensure that the employers kept their part of the bargain.

It was the case that Aoki Corporation was a main contractor for works on the South Kowloon Expressway. In the usual way they sub-contracted to other parties, including Albert Tse Engineering Survey Ltd of whom PW17 was a director, Wing Kee Co of which PW19 was the proprietor and Fender Construction Co run by PW20. These companies wished to import labour from China. Putting the matter neutrally, each company came into contact with the defendant. He held himself out as representing the Guangdong Province Labour Bureau. He explained how labour could be brought to Hong Kong and undertook the necessary procedures. Some workers came from Guangdong while others came from Fujian Province, the latter still passing through the the Guangdong Province Labour Bureau. The defendant was involved in the importation from China of some 113 workers for these three sub-contractors. These workers all signed a Hong Kong contract with the minimum wage clause.

Before these workers left China they entered into agreements with their various 'exporting units'. These agreements, called the 'China contracts' in this case, provided for a significantly smaller wage to be paid to the worker. The contracts provided that the difference between the China wage and the Hong Kong wage would be treated as foreign exchange income voluntarily contributed by the worker to the State. The exporting units represented the State for this purpose.

It was also the case that the workers agreed with the Guangdong Province Labour Bureau to pay them a monthly sum of $1200 as a 'labour management fee'. The defendant collected these sums. He undertook responsibility for the welfare of the workers in Hong Kong. His agreement with the Guangdong Province Labour Bureau provided that these sums be apportioned as to 40% to the defendant and 60% to the Bureau.

The workers arrived in Hong Kong from February 1995. Bank accounts were opened for them. Each was paid by autopay (though not from the outset in some cases). The amount paid by autopay was the minimum wage less allowable deductions for board and lodging (not to exceed 25% of the minimum wage).

The workers had surrendered their bank passbooks and provided signed withdrawal slips which enabled what had been paid by autopay to be taken from their accounts. The mechanics differed slightly between employers but it was done pursuant to agreements between the employers and the defendant. The workers were then paid the sum provided for in the China contracts.

From the sum representing the difference between the two wages came the $1200 which was paid to the defendant as the labour management fee. The remainder was kept by the Hong Kong employer.

The Hong Kong employers maintained that they kept the difference as this was what they had agreed with the defendant.

The case for the defendant was that the employers had orally agreed with the China authorities to collect the voluntary contributions to the State and held the sums on trust for them with an obligation to account annually.

In October/November 1995 the workers went on strike. The strike was settled. The workers were paid the difference between their China wages and the net Hong Kong minimum wage and thereafter received their wages on the Hong Kong basis.

The China contract wages received by the workers were above what they would be paid for the equivalent work in China. There was a limitless supply of workers willing to be employed on these terms. They were happy to receive the lower wage even in the knowledge that they were entitled to the much higher Hong Kong wage.

One of the workers was called as a prosecution witness. He was PW18. He went on strike not to put the difference between the wages in his pocket, but out of a fear that what he had agreed should be treated as foreign exchange earnings payable to the State was not being retained for that purpose. When he went back to China after the strike with funds accumulated from the Hong Kong wage he paid his exporting unit as provided for in his China contract. DW2, another worker, made similar payment upon his return.

The Guangdong Province Labour Bureau and its representative in Hong Kong, the defendant, faced competition from other agencies seeking to attract employers to take on men from the Philippines, Thailand and Shanghai."

9. The factual issue was stated by the Judge in this way: "Were the agreements reached with the sub-contractors and the defendant ones whereby the difference between the two wages (leaving aside deductions) was due to their collection of the foreign exchange income which they had agreed to collect and to account for annually on behalf of the Chinese exporting units; or was the agreement one to pay the workers less wages with the sub-contractors putting the net difference in their own pockets?"

10. It is however necessary to consider this in conjunction with para. 4 of the defence case which will be referred to later. In particular it is necessary to relate the issue back to the particulars of the conspiracy charges as it was essential for the prosecution to prove that the applicant by his conduct defrauded an officer or officers in the Immigration Department.

11. The prosecution case placed heavy reliance upon the evidence of the three sub-contractors. Essentially it was their evidence the agreement which they had concluded with the applicant was that they would pay the salaries at a lower rate than provided for in the Hong Kong agreements and that they would be beneficiaries in respect of the moneys.

12. At this point it has to be said that it was extremely unfortunate that a decision was made by Judge Hawkes to sentence the sub-contractors before the commencement of this trial. Indeed it can be said that many if not most of the problems which will be referred to in due course arose as a consequence of the premature sentencing of these men. It is always desirable where offences have a common basis the trial Judge should sentence the offenders who have pleaded guilty and those who have been found guilty after trial. One good reason for this is that it minimises the risk of there being wide disparities in sentences passed. Perhaps even more important the Judge passing the sentences will have a much greater knowledge of the relevant facts.

13. There is a further advantage in deferring the sentencing process if, as in this case, it is anticipated that the defendants who pleaded guilty will be witnesses at a future trial. There is, otherwise, always a possibility that they may change their minds and decline to go into the witness box.

14. Be that as it may the sub-contractors did give the evidence earlier referred to. It should perhaps be added that as a consequence of their having already been sentenced they had much less incentive to give false testimony than might otherwise be the case.

15. There was also the evidence contained in the cautioned statement made by the applicant which the Judge admitted after a voire dire. In this statement the applicant admitted that he had entered into an agreement with the sub-contractors to pay less than the amount stipulated in the Hong Kong agreements. He had also informed them that the workers were quite willing to work at the lower rate. He referred to the possibility of the workers going back on their word and that he would attend to matters on the mainland. He denied any suggestion that the difference in wages would be paid over to the state.

16. The defence case has been summarised by Mr. Lok, S.C. in his skeleton in this way:

"(1) He was only carrying out the policy of the relevant Chinese government bodies.

(2) The workers were fully aware and voluntarily agreed to accept a lower wage than that stipulated under the Hong Kong Standard Contracts.

(3) Under the Chinese Contracts the workers had agreed to surrender a part of their wage to their respective exporting units, the so-called Foreign Exchange Fund, which was equivalent to the difference in the 2 wages. The workers were fully aware of the contents of the terms and provisions of Chinese Contracts before they signed both the Hong Kong Standard Contracts and the Chinese Contracts, and they had voluntarily agreed to the surrender.

(4) The sub-contractors were also fully aware at all times of the situation in relation to the requirement of the payment of the Foreign Exchange Fund by the workers. During interviews in Mainland China, the sub-contractors had verbally agreed with the various exporting units to hold the difference in the wages for a period of 2 years before they would make an account of it to the exporting units. The sub-contractors were fully aware that the difference in wages was not for them to keep as their own money.

(5) The workers had fully authorised the Applicant to handle affairs relating to their bank accounts, and they had signed the blank withdrawal slips voluntarily. They had preferred to be paid in cash rather than by autopay.

(6) There was no dishonesty in the arrangement.

(7) There was never at any time any agreement, or discussion, between the Applicant and any of the sub-contractors to defraud the Hong Kong Immigration Department by dishonest misrepresentations to obtain entry visas, or the Hong Kong Labour Department. There was never any agreement, or discussion, between the Applicant and any of the sub-contractors to conceal the existence of the Chinese Contracts from the Hong Kong Immigration Department or the Hong Kong Labour Department. There was in fact existence of positive evidence that the Chinese Contracts should be disclosed for inspection if needed: P.25(c), P.472.

(8) Even if the Hong Kong Immigration Department had known the existence of the Chinese Contracts, they would still have granted the entry visas to the workers."

17. As has been noted earlier the Judge accepted the prosecution evidence and rejected the defence case. He gave detailed reasons in support of this.

18. Ground 1 of the Perfected Grounds of Appeal contains a complaint that:

"At the trial of the Applicant, 3 co-accused (namely Pw17 Albert Tse, Pw19 Cheng Man-ngok, and Pw20 Yip Ping-fai) who had pleaded guilty were called as accomplice witnesses. It was never disclosed by the Prosecution to the defence at any time that in the mitigation of the accomplices they had advanced forward a version of events which was untruthful and misleading and to which the Prosecution did not object and had supported in a bid to secure a lenient sentence for those accomplices. The defence was deprived of the opportunity to cross-examine the accomplices on this."

19. Mr. Lok submitted that it was incumbent upon Mr. Donald, who represented the prosecution when the sub-contractors pleaded guilty to inform the defence at the trial below of the mitigation which had been advanced by Mr. Hoo, S.C. who had acted for the sub-contractors.

20. He based this submission on his contention that the main thrust of Mr. Hoo's plea in mitigation was inconsistent with the evidence which the sub-contractors gave to the effect they were pocketing the difference between the amount payable under the contract which had been approved by the Immigration Department ("the Hong Kong contract") and the lesser amount payable under the contract which had been concluded in China ("the Chinese contract").

21. At the hearing before us we considered in some detail the submissions which had been made by Mr. Hoo in mitigation.

22. What is immediately apparent is that Mr. Hoo placed heavy reliance upon a Report which had been commissioned by the Panel on Manpower of the Legislative Council. The Report was published in July 1996. The title of the Report is an "Enquiry into the circumstances surrounding the labour dispute involving imported workers under the Special Labour Importation Scheme for the Airport Core Programme Projects and related issues".

23. The Report contains criticisms of the Government on the subject of the amount of control exercised over the importation of workers from the mainland. It is even suggested that it was well known that workers from the mainland entered into contracts of employment at lower rates of pay than the minimum amount stipulated in the contracts which were approved by the Immigration Department.

24. There was, however, nothing in the Report to support the submission made by Mr. Hoo that copies of the Chinese contracts were ever submitted to the Immigration Department. His submission to this effect would seem to be nothing more than a bare assertion made by him. His submission, insofar as it was based upon the Report, was not justified.

25. Can Mr. Donald properly be criticised for not informing counsel at the trial below of the existence of the mitigation Mr. Hoo had advanced when the sub-contractors had pleaded guilty? It is at least implicit from page 60 of the transcript of the proceedings involving the sub-contractors that he accepted much if not all of the submissions which had been advanced by Mr. Hoo.

"MR DONALD: Yes, your Honour, as far as the witnesses are concerned I confirm that they have given evidence in the past and the evidence they gave in the past was very important. On more than one occasion that they gave evidence in relation to voir dire and also in relation to the general issue of a previous trial. In fact, it's come before the ... (inaudible) trial. And they will be very important in the forthcoming trial against the 1st accused, D1. I think I can indicate that their roles were of a lesser nature than that of the 1st accused, D1. I can confirm where it's relevant the mitigating factors raised by Mr HOO in his mitigation. I can also say, as my learned friend indicated, that this is a technical breach. ... (inaudible) that is the case as far as these three defendants are concerned. I have checked the authorities and the tariff that I hand up seems to be the only one on point that I could find."

26. During the course of his lengthy plea of mitigation Mr. Hoo had made repeated references to the Chinese contracts and had claimed that the Immigration Department had received them from the Chinese Authorities.

27. It would appear that some support for this claim was derived from para. 2(6) of the admitted facts upon which each of the sub-contractors was sentenced.

"The completed standard form contracts together with the passports, sponsorship forms signed by the employers and other relevant documents would then be submitted via Chinese Authorities to the Hong Kong Immigration Department for application of employment visas for the workers."

28. Presumably Mr. Hoo formed the view that the "other relevant documents" would necessarily have included the Chinese agreements. There was no warrant for this assumption.

29. Mr. Lok also drew our attention to the fact that Mr. Donald had apparently accepted without demur the submission by Mr. Hoo that the offences which had been committed by the sub-contractors had only been of a technical nature. It is however fair to add that Mr. Donald did distinguish the role which had been assumed by the applicant from that of his clients.

30. The other main submission made by Mr. Lok was that there was a significant disparity between the mitigation and the case which was being made out against the applicant on the subject of what was done with the moneys representing the difference between the salaries payable under the Hong Kong contract and the Chinese contract.

31. As has been indicated earlier this was a critically important issue. At the trial the applicant was running his defence along the lines that he was a duly authorised representative of the Chinese Authorities and that any payments he received would be accounted for to the Chinese Authorities.

32. In broad terms the case against him was that he shared with the sub-contractors the moneys representing the difference between the contracts and that they were applied for their own use.

33. Although in the plea in mitigation Mr. Hoo did not directly say that the sub-contractors had not received any money from the arrangements which had been made it is nonetheless true to state that Mr. Hoo attempted to shift almost all of the blame onto the applicant.

34. It is however apparent that when the plea of mitigation is read in conjunction with the evidence given at the trial of the applicant there was no serious inconsistency between the different versions.

35. At the end of the day the real issue which had to be resolved was whether the sub-contractors were holding their portion of the proceeds of the difference between the contracts for themselves or in trust for the Chinese Authorities.

36. It was common ground that a deduction of $1,200 was made from the moneys and that the applicant applied this to the Chinese Authorities. So far as the balance was concerned there was no specific statement in the mitigation plea that none of the sub-contractors had obtained any advantage.

37. We are, however, satisfied that Mr. Donald should have disclosed to the defence the nature and extent of the agreement and concessions he had made in respect of the mitigation.

38. It is not enough for Mr. Reading, S.C. who appears before us for the HKSAR, to argue that as the pleas had been made in open court they were in the public domain. The deviation between what the prosecution had erroneously accepted in mitigation (which ought never to have been advanced before the applicant's trial began) and the case which was advanced at the trial, made it incumbent upon the prosecution to alert the defence of the position. Failure to do so amounted either to a material irregularity or to an abuse of process giving this court a discretion if it considers injustice was or might have been done to quash the conviction.

39. So far as the submission that the Chinese contracts had been sent to the Immigration Department was concerned little damage appears to have occurred.

40. As has already been indicated there was nothing to establish that the Immigration Department ever received copies of the Chinese contracts. Further the evidence plainly indicated that the Immigration Department was deceived by the material which it did receive.

41. Mr. Lok contended that had there been full disclosure of what had occurred when the subcontractors were sentenced to counsel at the trial below it would have provided rich material for cross examination.

42. This is not necessarily the case. It is most unlikely that any of the prosecution witnesses would have been able to provide any assistance concerning the suggestions of Mr. Hoo in his plea in mitigation. They would, undoubtedly, we are satisfied, have disclaimed all knowledge of what was or was not known by the Immigration or Labour Departments.

43. The position concerning the moneys held by the sub-contractors is rather different. The subcontractors could have been cross-examined upon the basis that their mitigation had suggested that they had not received any real monetary benefit which was contrary to their evidence which was that they had. We are, however, not persuaded that such cross-examination would have had any material effect on the outcome. They would, undoubtedly, have said that whatever their counsel, doing the best he could for them, had said in mitigation the truth of the matter was that they had received their share of the money.

44. After giving the matter careful consideration we have come to the conclusion that this is a situation where there has been no miscarriage of justice and that we should either exercise the proviso or refuse to exercise our discretion in the applicant's favour whichever be appropriate.

45. When so doing we bear in mind the damaging admissions contained in the inculpatory cautioned statement made by the applicant. These admissions were entirely consistent with the evidence which was given by the sub-contractors to the effect that any excess moneys they had been holding were being held for their own benefit and not for the Chinese Authorities.

46. Over and above this the thoughtful Reasons for Verdict given by the Judge and his careful scrutiny of the evidence satisfy us that even if there had been full disclosure the result would have been the same.

47. This ground cannot be sustained.

48. Ground 2 complains that:

"Subsequent to the conviction of the Applicant, it was discovered that the 3 accomplices had maintained in their mitigation that both the Hong Kong employment contracts and the China contracts had been submitted to the Hong Kong Immigration Department in the workers' application for visas, a point conceded by the Prosecution in those proceedings, which if true would have afforded them a complete defence to the charges to which they had pleaded. The consequence was that the accomplices would have pleaded guilty under an erroneous legal advice, and their pleas of guilty should not have been accepted by the Court with the result that they should not have been called as witnesses for the Prosecution as accomplices at the trial of the Applicant."

49. Having regard to the observations made in relation to the first ground this ground also cannot succeed.

50. It has never been established that none of the sub-contractors deceived the Immigration Department.

51. This ground also must fail.

52. Ground 3 is as follows:

"3. The learned Judge in admitting the record of video interview given by the Applicant into evidence after a voir dire (Exhibits P.2, 2a, 2b) erred in accepting the evidence of CInsp. Sin Wai-kwan when other evidence were uncovered which would cast grave doubt as to the honesty and integrity of that witness:-

(1) Despite 2 clear and unambiguous warnings by the learned Judge to Pw2 at the end of his entire evidence not to discuss the evidence that he had given with anyone (VIDE:- Lines K-M, page 437 of the trial transcript; and lines H-J, page 438 of the trial transcript), Pw3 CInsp. Li Chiu-yin gave evidence the very next day that Pw2 had approached him the previous afternoon and had informed him of what some of the questions he might be asked by defence counsel might be and told him how he should deal with them (VIDE:- Lines M-O, page 457 of the trial transcript; Line R of page 490 - Line O of page 491 of the trial transcript).

(2) Pw2 was the Officer in-charge of the case. He denied that he had used any police statement of any of the sub-contractors to induce the Applicant by telling him that they had implicated him and he should therefore co-operate with the police. Pw2 explained that he could not have done that since none of the sub-contractors had given any statement by that stage to the police (VIDE:- Lines M-P, page 429 of the trial transcript; Lines A-I, page 432 of the trial transcript). It was later discovered that in fact one of the sub-contractors in the case, Pw20 Yip Ping-fai had by that stage already given one such statement to the police (VIDE:- Line R of page 780 - Line D of page 781 of the trial transcript). Such evidence was directly contrary to what Pw2 had said (supra), to the Prosecution's case (VIDE:- Lines M-N, P-R page 506 of the trial transcript; Lines G-I, page 507), but was consistent with the defence case as put (supra) and with the evidence of the Applicant in the voir dire (VIDE:- Lines D-E, page 495; Lines K-L, page 496; Line L, page 504; Lines O-P, page 506; Lines I-K, page 507; Line B, page 509)."

53. It has to be borne in mind that the purpose of the voire dire was to ascertain whether the prosecution had succeeded in satisfying the Judge at the appropriate level that the applicant had freely and voluntarily made the statement in question.

54. Although the Judge was not bound to do so he did give fairly detailed reasons as to why he was prepared to accept the testimony of the police officers that the statement had been made voluntarily. The police witnesses had impressed him favourably whereas the Judge for the reasons he gave rejected the applicant's testimony. This he was fully entitled to do. It is however necessary to make short comment upon the matters complained of in 3(1) and 3(2).

55. 3(1). It is correct that the Judge did make it clear that PW2, the officer in charge of the case, should not discuss the case with officers who would be giving evidence in court.

56. It is by no means clear from the record that this allegation can be substantiated. An issue arose as to what discussions or decisions might be subject to privilege. What emerges from the record is that PW2 discussed this question with Chief Inspector Li. There is however nothing to suggest that there was any impropriety concerning this conversation. Certainly there is nothing to suggest deliberate flouting of the direction given by the Judge that there must be no discussions concerning the evidence which was going to be given by any of the officers. This complaint is without substance.

57. 3(2). This was a matter which did occasion the Judge some concern. He said this at p.48 of the appeal bundle:

"The relevant police officers I found to be good and credible witnesses. Nothing made me doubt their good faith. It came to light after my ruling that Chief Inspector Sin (PW2) was wrong when he asserted that no witness statements had been taken from the sub-contractors at the time of the defendant's arrest. One had been taken from Ip Ping-fai (PW20). I reconsidered my ruling in the light of this. I remained sure that the prosecution had proved the statements voluntary."

58. What is important is that the Judge was mindful of the position and notwithstanding this error on the part of the officer was nonetheless prepared to treat him as a truthful and reliable witness. There is no reason why we should interfere with the Judge's findings in this connection.

59. Ground 4 is as follows:

"4. There was a material irregularity in the trial in that the learned Judge had stepped into the arena and cross-examined some of the Applicant's defence witnesses:-

(1) Dw2 Huang Lin-zhong (VIDE:- Line E of page 888 - Line F of page 889 of the trial transcript);

(2) Dw3 Lee Kam-ling (VIDE:- Lines F-N, page 926 of the trial transcript). The learned Judge used the answers of the witness from his own questions as one of the basis for disbelieving him (VIDE:- Paragraph 2, page 17 of the Reasons for Verdict or page 61 of the Appeal Bundle)."

60. There is no merit at all in this complaint. If the interventions are read in their context it is apparent that the Judge was merely seeking clarification. There was nothing in any way hostile or oppressive in the questions which were asked and nothing whatever to indicate that the Judge had in any way 'stepped into the arena and cross-examined some of the applicant's defence witnesses".

61. This ground is wholly without merit.

62. It is not necessary to condescend into particularity regarding Grounds 5, 6, 7, 8 and 9.

63. In each of these grounds a complaint is made that the Judge did not make findings on factual matters favourable to the applicant. It is clear from the Reasons for Verdict that the Judge very carefully evaluated all of the available evidence in respect of the issues which were before him.

64. No convincing reason has been put forward to justify any interference with the Judge's findings of fact. The Judge was fully entitled to reach the conclusions he did on the evidence.

65. None of these grounds have any merit.

66. As stated earlier in respect of Ground 1 of the Perfected Grounds of Appeal we are satisfied that there was either a material irregularity or an abuse of process but notwithstanding this we were of the view that the conviction is safe and satisfactory and we either apply the proviso or refuse to exercise our discretion whichever be appropriate.

67. For this reason the application is allowed. However treating it as the substantive appeal we dismiss it.