HKSAR v. NG CHUN SING

CACC 360/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 360 OF 2003

(ON APPEAL FROM DCCC 263 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. On 25 July 2003, the applicant was convicted on three charges following an eight-day trial before Judge Chua in the District Court. He now seeks leave to appeal against conviction on each of the charges.

2. Essentially, the allegation (in charge 3) against the applicant was that he engaged in bookmaking, contrary to section 7(1)(a) of the Gambling Ordinance, Cap. 148. In the other charges (1 and 2), it was alleged that he dealt with property known or reasonably believed by him to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organised and Serious Crimes Ordinance, Cap. 455.

3. The particulars of the third charge were that the applicant, "on or about 7 June 2002, inside a stone hut at Lot No. 573, Shek O Village, Chai Wan, engaged in bookmaking". This was a joint charge with one other, Sze Ming-fai (D1), who pleaded guilty at the outset of the trial.

4. Charge 1, as amended during the trial, alleged that between 1 January 2000 and 9 July 2002, the applicant, "knowing or having reasonable grounds to believe that property, namely the approximate sum of $5,909,683, in whole or in part directly or indirectly represented the proceeds of an indictable offence, dealt with the said property".

5. The amendment of this charge reflected a considerable reduction in its original gravity by narrowing the dates shown from 9 December 1996 to commence, instead, on 1 January 2000. This, in turn, reduced the sum of $12,924,737, which was originally shown in the charge, to the sum of $5,909,683.

6. Similarly, the particulars in charge 2, as amended, reduced the scope of the charge from 18 December 1996 to 1 January 2000 and the laundering of $36,365,790 down to $10,954,795.

7. The two money laundering charges arose because the applicant operated separate accounts for what was alleged to be the purpose of dealing with monies which, in part at least, represented the proceeds of an indictable offence.

Prosecution's case

8. It is unnecessary, in the light of the grounds of appeal, to go into more than a bare summary of the case for the prosecution.

9. Broadly, it was alleged in charge 3 that the applicant, with D1's assistance, was engaged in bookmaking in relation to World Cup soccer matches.

10. At about 6.27 p.m. on 7 June 2002, the police raided a stone hut in Shek O where the applicant and D1 were found with three others who were not charged. The hut measured no more than 500 square feet. It was equipped with a bedsitting room, a toilet and a kitchen.

11. The police found gambling paraphernalia on a table in front of a television set. A football match was in progress on the screen and a computer was tuned in to a football betting website. D1 was in the process of trying to flush away betting slips in the toilet bowl as the police came into the hut. The applicant's fingerprints were found on four betting slips including one of the three found in the toilet bowl. The gross figure involved in the betting slips found on this raid totalled almost $1.5 million.

12. The money laundering charges (1 and 2) related to a part of the large volume of transactions, running into millions of dollars, which went through two bank accounts (Exhibits P.14 and P.15) operated by the applicant. The prosecution relied not only on the volume of transactions in relation to certain bank accounts but also on the pattern of these transactions which showed that deposits and withdrawals were often made in bursts over one or two-day periods close to certain football matches. These were referred to as "clusters" during the trial. Added to this, the prosecution relied on the fact that many deposits and withdrawals were recorded between these two accounts and a total of seventy-eight other accounts which were identifiable, as well as other sources which were not. Significantly, in this context, taken from a bag in the hut where the applicant was arrested, a two-page record (Exhibit P.5(5H)) was found which referred to thirty-four of the bank accounts reflected in the applicant's bank statements. A schedule (Exhibit P.20), prepared by the prosecution, listed these accounts and showed the frequency of their appearance in the applicant's bank statements together with the sums involved. Most of the accounts involved sums of less than $50,000 and often less than $10,000, and they tended to be in round figures.

13. The prosecution also produced evidence that the applicant's Inland Revenue profit tax returns did not indicate a business that would support transactions of the kind revealed in the bank accounts.

14. The activities on 7 June 2002, when the raid occurred, were overwhelmingly indicative, it was suggested, of a gambling operation in the light of all the evidence which showed a relatively large volume of telephone calls made by and to the applicant, or someone using his line, particularly in the time immediately before the commencement of football matches when punters most often placed their bets. The applicant had a mobile telephone which was registered in someone else's name.

Defence

15. The applicant's evidence at trial took about three days. In short, he denied participation in bookmaking, saying that at the time of his arrest he had been visiting a friend to watch the World Cup. Having arrived at about 2 p.m., he noticed that D1 was spending a considerable time on the telephone. The applicant touched some of the papers on the table in order to get to the controls of a video game.

16. In cross-examination, when asked to explain, amongst numerous other things, why he had called the number 2356 8692 which appeared in his telephone records (Exhibit P.12), he stated that he did not know whose number this was. It was pointed out that it was amongst the listed numbers found in the notebook taken from alongside the sofa and that other numbers in the same notebook were also found in the applicant's call records for 7 June 2002.

17. In relation to the money laundering charges, the applicant, who had no formal employment, stated that none of the monies passing through the two accounts (Exhibits P.14 and P.15) were the proceeds of an indictable offence. He said that he had a large number of business interests which were not declared to the Inland Revenue. These included:

(i) day trading in stocks and shares where settlement was through his bank accounts;

(ii) decoration work with his brother and others;

(iii) running a guesthouse or, as happened later, the collection of rent from the manager of the guesthouse;

(iv) rental income from a residential unit and a warehouse;

(v) income from a boutique;

(vi) PR work at a bar and restaurant group known as "Parrot"; and

(vii) frequent mahjong playing that required settlements of wins and losses.

Grounds of appeal

18. Against this background, Mr Oderberg, on the applicant's behalf, raised six grounds of appeal. The principal amongst these were the first two grounds.

Judge's interventions

19. It was submitted in grounds 1 and 2 that the judge had intervened "excessively and unnecessarily" during the cross-examination of PW2 and during the applicant's evidence-in-chief, thus prejudicing the presentation of the defence. It was argued that whilst many of the judge's two hundred or so interruptions in the course of PW2's four-hour cross-examination may have been formal by nature, their general effect could only have been to prevent counsel from properly pursuing cross-examination. The interruptions of the applicant, while he was giving evidence, were described as "even more significant".

20. Looking firstly at the complaints relating to the judge's handling of the cross-examination of PW2, we can immediately observe that there were far more interruptions than we would normally expect to find from a judge. This witness, an Inspector attached to the Organised Crime and Triad Bureau, was the officer in charge of the case. He had been tendered for cross-examination at the request of the defence and, from many of the questions asked by the judge, it is apparent that she was having the greatest difficulty following the relevance of the questions defence counsel was asking and the answers he was receiving.

21. No doubt interruptions on this scale might put some counsel off their task. In the present case, however, it does not appear to have done so. At no stage was there any hint of bias or animosity in the judge's interventions although there was sometimes a hint of exasperation at suggested irrelevance and at the apparent repetition of some of the questions directed at PW2. At various stages of cross-examination, the judge engaged counsel in almost constant dialogue in an apparent attempt to get him to focus on matters which were relevant.

22. Whilst we do not wish to be seen condoning extensive interruptions on this scale, we do not consider that these prevented experienced counsel for the defence from properly conducting his cross-examination.

23. A similar situation is to be found with the applicant's evidence. However, Mr Oderberg, who did not appear in the court below, on this occasion made specific reference in his written argument to a number of transcript page references where he complained that the judge was trying to shorten matters to the prejudice of the presentation of the applicant's case.

24. When these passages are examined, it is perfectly true that the judge is shown to have attempted, on several occasions, to reduce the scope of counsel's questions on charges 1 and 2 to a shorter period of time than the bracket of nearly six years originally set out in the charge sheet. Later, the judge got her way by making amendments, on 4 July 2003, which reduced the allegations in charges 1 and 2 to a period of about two and a half years.

25. It is apparent throughout, however, that the judge was not really intending to concern herself with dates before the year 2000 and when, in due course, charges 1 and 2 were amended, the applicant obviously benefited from this. The presentation of his case was made easier and the gravity of charges 1 and 2 was to some extent reduced.

26. We were not persuaded by Mr Oderberg that the judge had allowed the evidence of events before the year 2000 to prejudice her approach from the remark she made when sentencing that:

"D2 can count himself very lucky that the prosecution was persuaded to trim down the period he has been accused of dealing in proceeds of an indictable offence from 9 December 1996 to 9 July 2002 to 1 January 2000 to 9 July 2002." (Appeal bundle p. 22)

This was a legitimate comment to make in the context of the appropriate sentence to impose on the charge as it now presented itself.

27. The suggestion is that, by her frequent interruptions of the examination-in-chief of the applicant, the conduct of the defence case was prejudiced. A glance through the transcript would indeed suggest, on its face, an unhealthy amount of interruption by the trial judge. However, this must be viewed in the context of the nature of the examination-in-chief and what it was intended to draw from the witness. The whole thrust of the examination was to establish the various businesses in which the applicant had an interest and then to explain, item by item, entries in the bank accounts. In this sense the evidence was detail-specific and documentary rather than descriptive. The interventions tended to be directed at understanding the documentation or entries referred to and keeping counsel to the point. Nonetheless, the applicant was asked and allowed to explain relevant individual entries and we are satisfied that the interruptions were not such as to prejudice the applicant's trial.

Non expert treated as expert

28. Mr Oderberg correctly pointed out in argument, in the context of the same two grounds, although this was a wholly separate issue, that the only "expert" witness called by the prosecution was Sergeant 46070 (PW5) whose evidence, with specific reference to the exhibits found in the present case, related to some of the features which are generally to be found where bookmaking on soccer games has taken place. However, in her Reasons for Verdict, it appeared as if the judge had also treated Inspector Cheung Hon-bun (PW2) as an expert. She found that PW2 was "eminently qualified to give expert evidence by his training and experience" before concluding that he had found "two hallmarks of the bookmaker's bank account in his examination of P.14 and P.15".

29. It may be that the judge rightly assumed that PW2 was properly equipped to give expert evidence. He was senior to PW5 and it was he who assigned PW5 to give "opinion evidence" according to the evidence contained in PW5's witness statement (Exhibit P.19) which was read under section 65B of the Criminal Procedure Ordinance, Cap. 221. Furthermore, PW2 was specifically asked about his experience with bookmakers' bank accounts by defence counsel. Plainly, he was questioned about his expertise and he was shown to have had experience. In the circumstances, it would have been preferable for the judge to have first invited the views of counsel before concluding that he was an expert. As such, if this was an irregularity in the trial which is doubtful, it was not, in our judgment, one which was material.

30. PW2 had not been intended by the prosecution to give "live" evidence at trial. He was the officer in charge of the case and, as such, he was tendered at the request of defence counsel for cross-examination. The evidence he went on to give largely related to the "patterns" which generally emerge from bank records to be found in a bookmaker's account. Such evidence amounted, to a great extent, to an expression of common sense and, effectively, a statement of the obvious. The questions were pursued by defence counsel, with intermittent support from the judge, and at no stage did counsel for the defence suggest that the evidence given by PW2 was inadmissible in so far as it provided evidence of opinion.

31. Defence counsel at trial had also gone on to ask PW2 why an investigation into each and every entry had not been pursued because the entries might have related to legitimate funds. This received the reply from PW2:

"Maybe but when I looked at this account I looked at it as a whole. As I've explained before these entire accounts, the pattern of which tally with a football bookmaker's account. I did consider maybe some of the transactions did not involve football bookmaking. That's why in the charge itself it says 'in whole or in part'. Of course I could have asked the bank for each item but I have also balanced the evidence I already had in hand and the time and taxpayer's money which had to be spent if I were to make enquiries with the bank to get those information..... I was of the view that I already had sufficient evidence to charge the defendant." (Appeal bundle p. 45)

32. As Mr Shiu, for the respondent, pointed out, the prosecution had a sound evidential basis for saying that at least some of the funds passing through the applicant's accounts were derived from bookmaking and there was no obligation or need for the prosecution to trace the source of any of the transactions. These were merely illustrative of the allegation, taken as a whole, that bookmaking was the source of funds which represented the proceeds of an indictable offence.

Inference or speculative assumption

33. The third ground of appeal complained, to use Mr Oderberg's words, that the judge "took the concessions by the prosecution as the limit to the number of 'innocent' payments transfers received by the applicant without analyzing the remaining payments to determine if their receipt was only explicable on the basis of them being the proceeds of gambling ('the indictable offence')".

34. It appears that Mr Oderberg's submission, more simply expressed, was that the judge had accepted that many of the entries in the bank accounts may have related to legitimate business activities but had "in effect (assumed) that any large entry in those accounts which (was) not accounted for by the applicant (was) therefore referable only to the indictable offence of bookmaking".

35. Charges 1 and 2 were laid under the provisions of section 25(1) of the Organised and Serious Crimes Ordinance which provides:

"Subject to section 25A, a person commits an offence if, knowing or having reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person's proceeds of an indictable offence, he deals with that property."

36. Mr Shiu correctly pointed out that nowhere is it shown that the judge made assumptions in the sense of speculative guesses. The prosecution at trial had conceded that some of the bank entries were from legitimate sources, but there were many others for which there was no explanation at all leaving open, in the full context of the evidence produced at trial, only one reasonable inference which the judge found to be "irresistible".

Duplicity

37. We do not propose to dwell on the fourth ground. This alleged that: "allowing convictions on both counts 1 and 2 amounted to duplicity and was wrong in law as they both related to the one set of facts namely dealing in the proceeds of illegal bookmaking over the period 1st January 2000 to June or July 2002."

38. Mr Oderberg submitted that charges 1 and 2 related to "one continuous transaction". He contended, therefore, that the fact there were two bank accounts into and from which funds went could not justify the inclusion of two separate charges when the applicant "could properly (have been) convicted of one count only".

39. With respect, there was nothing duplicitous in the formulation of charges 1 and 2. Each offence related to dealing in property (the proceeds of an indictable offence) in respect of a specific bank account. One of these accounts was at the Hang Seng Bank (charge 1) and the other at the Hong Kong Bank (charge 2). On both accounts, the applicant was the sole signatory.

40. The succinct reference to duplicity, in this context, to be found in Archbold 2004 [1-135] is that:

".... no one count of the indictment should charge the defendant with having committed two or more separate offences."

41. It was the prosecution's case that the applicant had committed separate offences by operating two wholly separate accounts for the purposes of laundering money. This was not, as Mr Oderberg sought to argue, a situation where the prosecution had tried to obtain two convictions arising from the same misconduct. In any event, the sole adverse effect to the applicant of two charges, assuming they could have been combined into one, would have been if he had received some additional penalty for two offences instead of one. In this case, the applicant's prison sentences on each charge were ordered to run concurrently.

42. This ground was misconceived.

Insufficient evidence

43. In the last ground of appeal, Mr Oderberg attacked the judge's finding that an analysis of the "pattern" which emerged from the applicant's bank accounts when matching the transfers (as demonstrated in Exhibit P.20) from his accounts into the thirty-four accounts recorded in Exhibit P.5(5H) provided a "devastating piece of incriminating evidence". He argued that some of the thirty-four accounts were shown to have been in the names of the applicant's relatives, none of whom had been proved to be involved in any form of gambling with the applicant. He also contended that there was really no evidence that Exhibit P.5(5H) had been prepared by the applicant "or was referable to him in any way".

44. Once again, it has to be emphasised that the evidence had to be looked at as a whole. Apart from the surrounding circumstances, which showed the applicant to be present at the time of the raid in a small stone hut where the general picture revealed a bookmaking operation in progress, the applicant's fingerprints were found on three betting slips (Exhibits P.5(5E), (5F) and (5G)) which were inside the same paper bag as Exhibit P.5(5H) itself. Thirty-four of the bank account numbers listed therein appeared on multiple occasions in the applicant's bank accounts.

45. This ground had no foundation.

Conclusion

46. The convictions were neither unsafe nor unsatisfactory. The applicant was convicted on strong evidence from which the judge was fully entitled to have concluded that he had engaged in the offences alleged against him.

47. Nevertheless, on grounds 1 and 2 relating to the judge's frequent interruptions of counsel, and on the unspecified ground arising from grounds 1 and 2, which led the judge to treat PW2 as an expert without consultation with counsel or their agreement, we shall grant leave. In the event, as we have said already, we do not consider either of these matters to have amounted to a material irregularity.

48. Accordingly, treating the hearing as the appeal, we dismiss the appeal.