HKSAR v. YU TAI CHI

CACC 476/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 476 OF 2000

(ON APPEAL FROM DCCC 467 OF 2000)

_________________________________

________________________________

___________________________

REASONS FOR JUDGMENT

___________________________

Hon Woo JA (giving the reasons for judgment of the Court):

Introduction

1. This is an application for leave to appeal against conviction. On 19 October 2001, after hearing Mr Bruce SC, for the applicant, we dismissed the application and stated that we would hand down our reasons later. They appear below.

2. The applicant and two other persons, namely, Yeung Wai-keung and Wong Yuk-kui, were jointly charged with conspiracy to defraud, contrary to common law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200. In the charge, Yeung was designated as D1, Wong as D2 and the applicant as D3. The particulars of offence were that the three defendants, between 1 February 1998 and 31 May 1998, in Hong Kong, conspired together to defraud Eastern Pretech (Hong Kong) Limited ("Eastern Pretech"), by dishonestly

(i) not constructing the pre-bored piles for the foundation works of the construction project at Yuen Long Industrial Estate, Wang Chau, Yuen Long, New Territories, ("the Project") in accordance with the plan or plans approved by the Buildings Department ("the plans");

(ii) falsely representing that the pre-bored piles were constructed in accordance with the plans;

(iii) not disclosing and concealing that the pre-bored piles were not constructed in accordance with the plans; and

(iv) causing or permitting Eastern Pretech and/or persons acting for or on its behalf in relation to the Project to assess, approve and pay for work in relation to the construction of the pre-bored piles that had not been done or done in accordance with the plans.

3. In addition, D1 faced one count of false accounting and five counts of using a false instrument, all relating to the Project.

4. As D2 had absconded, only D1 and D3 were on trial before Judge Line in the District Court. After trial, on 26 October 2000, the Judge convicted D1 of all the seven offences which he faced and convicted D3 of the conspiracy charge. He proceeded to sentence D1 to a term of five years' imprisonment and D3 four years' imprisonment on the next day.

5. Originally, D1 sought leave to appeal against conviction, but that was abandoned on 6 September 2001.

6. D3 sought leave to appeal against both his conviction and sentence, but had notified the Court that he abandoned all proceedings relating to sentence. His application for leave to appeal against conviction was the remaining matter before us.

Facts

7. Eastern Pretech was the developer of the Project. It awarded the main contract to Allied Dragon Engineering Company Limited ("Allied Dragon") to construct a plaster and mortar batching plant at the site mentioned in the particulars of offence ("the site"). D1 was a shareholder and director of Allied Dragon. Allied Dragon subcontracted the piling works to Complete Engineering Company of which D2 was the proprietor. Eastern Pretech engaged PW3 Mr Benson Wong Sai-ning, a director of Multiple Surveyors Limited, as the authorised person and PW4 Mr Richard Wong Kwok-chuen, a director of K C Wong & Associates Limited, as the registered structural engineer, for the Project. Multiple Surveyors Limited engaged D3, who was a director of Geo Con Engineers, as the resident engineer for the piling works.

8. Building plans were approved by the Buildings Department regarding the Project. According to the plans, 17 pre-bored piles, each about 40 metres deep, penetrating the bedrock by 3.5 metres, should be built. Pre-bored piling has the advantage over driven piling in that it ensures that the piles are placed vertically underground to form a firm foundation. Pre-bored piling requires more work and is more costly than driven piling.

9. The 17 piles that were eventually built on the site were defective in that they had not been pre-bored according to the plans and specifications and were shorter than required.

10. The above facts were common ground and it was also common ground that as the resident engineer, also termed a Class C supervisor , D3 should have been present at the site daily to ensure that the piling works were performed in compliance with the plans.

The prosecution case

11. The case for the prosecution was that D3, being fully aware that pre-bored piling was required, knew that that was not done but instead assisted D1 in preparing false piling reports and submitted them to the authorised person and the registered structural engineer, purporting to show that the piling works were done in accordance with the plans. The piling reports were submitted to the Buildings Department which obviously relied on a system of honest documentation before issuing approval certificates for each stage of the works and which in turn were relied on by Eastern Pretech in making the stage payments to Allied Dragon.

D3's case at trial

12. D3 gave evidence before the Judge. It became clear then that he was not disputing his role and duties as the resident engineer, in having to inspect the performance of the piling works daily at site, but he stated that he was absent from the site at the time when the piling works were in progress. He denied any knowledge in relation to what was going on by admitting he was failing in his duty. He denied he had entered into any agreement with D1 or anyone else to falsely represent that the piles were constructed in accordance with the plans. He denied that he had at any stage entered into any agreement for not disclosing and concealing that the piles were not constructed in accordance with the plans, or to cause Eastern Pretech to pay for the piling works as if they had been performed in accordance with the plans. He denied that he had accepted any bribe from D1.

13. Although he told the court that he had known PW4 before he was engaged in the project, he was in fact approached by one Andrew Lam, PW42, of Multiple Surveyors Limited to be the resident engineer regarding the piling works of the Project. He declined because he was too busily engaged in other commitments. On Andrew Lam's urge, he said "I had told Andrew Lam that I assisted him in name only because I was very busy and I had a lot of work to do." It was on that basis, according to D3, that he accepted the appointment as the resident engineer of the Project relating to the piling works. In fact, according to his testimony, he was only present at the site at a couple of site meetings before and long after the period of three weeks during which the piling works were performed, and at a God worshipping ceremony held at the site in February 1998. Although he signed various piling reports in the "checked by" section, what he had done was merely checking the figures already appearing on the report by way of calculation, but he was not certifying the truth of the figures, nor was he present at the site to inspect the works to find out whether the figures were true and correct.

Reasons for verdict

14. The Judge in his reasons for verdict summarised D3's case as follows:

"His case was that upon his appointment it was agreed that he would be the resident engineer in name only and that as a result he never attended the site during the course of the piling. He considered that he had done wrong in this regard but he denied ever knowing that the piling was being done other than properly. He maintained that if he had known he would have told."

"The case for D3 was that he was appointed to be the resident engineer on the site by a company called Multiple Surveyor (sic) Limited. He dealt exclusively with a man there called Andy Lam. He told me that he made it clear to Mr Lam that he was too busy to do the work and that he could not attend the site on a daily basis. He went on to say that Mr Lam informed him that the matter was urgent and that he could not find anyone else to do the job and that Mr Lam agreed to him being the resident engineer in name only.

According to D3 he never attended the site during the piling work, which took three weeks, and he took no measurements and made no records. He said that he did attend the site for a God worshipping ceremony before the work was started and that he attended monthly site meetings there, but took no part in them. He said that he did help to format the piling report that eventually went to the Buildings Department and that he did initial some daily work progress reports which had been prepared by the main contractors. He said that he did intend to take the full fees for the job and that he did in fact receive them."

15. The Judge also identified the key issue that he had to decide, as follows:

"The main issue in each case was thus one of knowledge. If the prosecution could prove that a defendant knew what was going on then irresistible inferences would flow to establish the conspiracy to defraud."

16. While accepting PW42 Andrew Lam's evidence which denied any agreement with D3 that D3 was to be the resident engineer in name only, the judge rejected D3's evidence. He made the following observations on the quality of D3's evidence:

"D3's credibility did not survive his cross-examination. Notwithstanding his clear record, intelligence and qualifications, he was unable to sustain his invention. Questions directed to what he must have thought and done, if his account was true, found him out. He was involved in a fraud on the Buildings Department on his own case, yet he could not say what he had agreed with Mr Lam should happen if the Department's inspectors asked for his records; he said that he had no idea if Benson Wong knew of his arrangement with Mr Lam; he assumed, but was not sure, that the others at the monthly meetings knew his true status. If he was exposed in his fraud he was in serious trouble, yet his evidence revealed no concern about this and no resulting conversations with Mr Lam directed to finding out who knew of their arrangement and to reducing the risk of his being exposed. An intelligent man like D3 could not have realistically proceeded as he claimed without thought and attention to such details.

D3 was an evasive and poor witness. A reading of his evidence reveals attempts to avoid the questions or resort to the unrealistic. Examples which come readily to mind are his assertion that he initialled the daily progress records of the piling work prepared by the main contractors in the 'checked by' section without having any idea of why he was doing so; his claim to need to look at documents in the witness box to see if he went to the site at all in August 1998 before denying doing so, when that must have been a matter of burning significance from the moment he was aware that it was then and there that someone said he took a bribe; his claim that he could not remember, as he had not taken a note, if it had been put to Richard Wong (the registered structural engineer for the project whom he knew from before and who recommended him for this job) that he had told him the true position about what work he was to do. If there had been any truth in this claim, which he made in his evidence, he would have been bursting to have it adduced from the witness."

17. Having rejected D3's account, the Judge drew the inference based on the evidence that he had accepted, that D3 had allowed D1 to diverge from the plans and that D3 had agreed with D1 on the matters set out in the particulars of offence.

Ground (1) of appeal

18. In the substituted perfected grounds of appeal settled by Mr Bruce, three grounds of appeal were raised; however, the third ground had been abandoned. Ground (1) states that there was a material irregularity in the trial in that the Judge erred in permitting the prosecution to call evidence after the close of the case for D3. It is alleged that the issue upon which the prosecution sought to adduce evidence did not arise ex improviso and was not a matter which the prosecution could say was inadvertently left out of its case. It is further argued that the error convicted by the judge remains a material irregularity notwithstanding that counsel then appearing for D3 expressly did not object to the course.

19. The subject matter of complaint of ground (1) is that evidence was allowed to be adduced by the prosecution after D3 had given evidence and closed his case. The evidence so adduced by the prosecution was the testimony of PW42 Andrew Lam.

20. Mr Bruce has referred us to a number of authorities in England, Canada and Australia regarding the principle governing the adduction of evidence by the prosecution. The general principle is that the prosecution must present its case completely before the accused is called upon to defend. That is accepted by Mr Zervos, for the HKSAR. Since counsel for the parties were agreed as to the law, it is only necessary to refer to what has fallen from Lord Widgery CJ in R v Pilcher (1974) 60 Cr App R 1 at pp 5-6:

"The rule that the prosecution must finish their case once and for all before the defence starts is a very important and salutary rule. It means that the defence does not have to meet the case until it has seen the whole case ... We do not say that in cases like the present where the matter has not arisen ex improviso the judge had no kind of discretion at all, but we are firmly of opinion that in cases where the matter does not arise ex improviso the judge's discretion should not be exercised to allow the late introduction of an additional witness called for the prosecution whose evidence was available before the case for the prosecution closed. One must have sympathy with overworked prosecution solicitors in long cases of this kind, but it seems to me in the interests of finality and in the interests of fairness to the defence one must take a strict line not to let in prosecution evidence coming in late in the proceedings if it is outside the ex improviso rule."

21. Mr Bruce submits that the prosecution is only allowed to call evidence after the defence has closed in very special or exceptional circumstances. The prosecution will not be allowed to adduce evidence which it ought reasonably to have foreseen. Mr Zervos agrees to this summary of the law. However Jolly v Director of Public Prosecutions [2000] Crim L R 471 and other cases referred to in Blackstone's Criminal Practice 2001, para F6.1 "clearly suggest that there is scope for a more generalised approach to admissibility, having regard to whether the accused will be unfairly prejudiced ...". Without deciding on the point, as it was not argued before us, it is only necessary to concentrate on the narrower approach as agreed by counsel in our consideration of this case.

22. We now turn to examine the circumstances of this case in order to decide whether the prosecution ought reasonably to have foreseen that PW42's evidence would be required to be adduced before the close of the prosecution's case. Mr Bruce argues that the issue whether D3 was at the site and an active and knowing participant in the conspiracy was the very core of the prosecution's case. All along the prosecution was endeavouring to prove that D3 was on site and had knowledge of the piling works and the testing of piles. The existence of Andrew Lam as the primary source of contacting D3 was mentioned by counsel for D3 during the cross-examination of PW3 Benson Wong and PW4 Richard Wong. Mr Bruce also draws our attention to the fact that D3's presence at the site was canvassed by the prosecution with various prosecution witnesses. He therefore argues that in seeking to call PW42 Andrew Lam to give evidence after the close of D3's case, the prosecution was not calling evidence on a new topic not reasonably foreseen. He characterises that as an attempt by the prosecution to strengthen their case.

23. On the other hand, Mr Zervos submits that D3's testimony that he did not attend the site after the God worshipping ceremony in February 1998 and that he was the resident engineer in name only came as a surprise to the prosecution. When D3 testified, that was the first time that he asserted that he was never at the construction site at the material times and was the resident engineer in name only. This had never been put to prosecution witnesses who gave evidence before he did.

24. Various prosecution witnesses had given evidence of engagement of D3 as the resident engineer for the piling works, evidence that he was signing documents which someone carrying out that job would sign and evidence that he was seen on site. In the light of this evidence the prosecution could hardly be expected to assume that there might be a defence that a contrary arrangement had been made with some employee of the developer or authorised person to the effect that D3 would never be there. The admissions made by D3 to the ICAC further undermined that assumption.

25. In the record of interview of D3 with the ICAC on 11 November 1998, D3 mentioned his duties as the resident engineer, including inspecting and checking the construction of the piles. He admitted that he had attended monthly site meetings and that he worked as the resident engineer at the site. In examination in-chief by his own counsel, however, D3 said that all his admissions in the interview of his attendance at the site as well as his inspecting the piling works were untrue. He claimed that he had made such admissions to the ICAC because he was confused and he was afraid that he might be accused of negligence of duty or absence from duty as a Class C supervisor. Counsel for D3 never put to any of the prosecution witnesses who gave evidence before D3 about the agreement that he later testified that he had made with PW42 that he was merely to be the resident engineer in name only.

26. If we may say so, these voluntary admissions to the ICAC and the way that cross-examination of prosecution witnesses was conducted had clouded the prosecution's view and misled them into not anticipating the defence as run by D3 eventually. D3's case that was for the first time presented in his testimony, in our view, could not have been reasonably foreseen by the prosecution. Not the slightest indication had ever been made of this simple case that he would run until he gave evidence and there was no objection to the admissibility of his admissions to the ICAC which admissions he so readily disowned on oath. Indeed, D3's case could not start to run, even if there had been the alleged agreement with PW42, had he visited the site and done his job as the resident engineer, as he had told the ICAC. He had to say that his out of court admissions were lies and accept that he was in breach of his professional duties in order to run such a defence. That must be beyond the wildest imagination of the prosecution at the trial, especially when no intimation of this simple defence had ever been put to any of the prosecution witnesses. We are of the view that the Judge correctly exercised his discretion to allow the prosecution to call the rebuttal evidence in the form of PW42's testimony. The prosecution did not change its case or try to improve it by doing so. Moreover, had D3's defence case been in any way put forward to various prosecution witnesses regarding D3's alleged agreement with PW42 to be the nominal resident engineer only, it would have alerted the prosecution of D3's eventual defence. However, that was not done and D3's counsel very properly raised no objection to the prosecution's application to call rebuttal evidence. It now lies ill in the mouth of D3, through Mr Bruce, to complain about the course adopted by the prosecution and allowed, correctly in our view, by the Judge.

27. The issue upon which the prosecution sought to adduce evidence in rebuttal did arise ex improviso. The Judge allowed the prosecution to call evidence in rebuttal not to strengthen its case but to deal with a new matter that the prosecution could not have reasonably foreseen. We do not see anything wrong in the Judge exercising his discretion to do justice to the parties in the circumstances. Ground (1), albeit dressed up as a respectable legal argument, can have no application in the context of the facts of this case. Mr Bruce's submission is artificial and divorced from the particular facts and from the truth of the situation which unfolded in the proceedings below. There is no substance whatever in this ground and it fails.

Ground (2) of appeal

28. Ground (2) is set out fully below:

"The verdict was unsafe and unsatisfactory in that the learned trial judge wrongly took account of the failure to cross-examine (vide transcript p.43-44) on the topic of whether the second applicant [D3] was, in effect, on the construction site in name only, and that the defence ought to have been 'bursting' to cross-examine prosecution witnesses on that topic if there was any truth in that contention. The verdict is unsafe and unsatisfactory in this regard because even if the learned trial judge was right that there was no cross-examination on the topic, the failure to cross-examine is a very dangerous basis for drawing adverse inferences as to credibility and there was in fact some cross-examination on the topic.

These errors both singularly and collectively were highly material in the trial where the credibility of the witnesses and, especially the second applicant, was crucial to the outcome of the trial."

29. The complaint relates to two of the nine sub-paragraphs of reasons for which the judge rejected the account given by D3, namely, sub-paragraphs 2 and 5, which are set out in full as follows:

"2. The realities of the situation were all on the side of Mr Lam. The idea that it was his idea alone, when he was a stranger to D3 and employed himself in a modest position, to have a resident engineer in name only for the important piling work is unworthy of belief. Mr Lam was the one to invite D3 to the site meetings where he met the 'authorised person' for the project, Benson Wong (PW3) Mr Lam's boss; the resident (sic) structural engineer, Richard Wong (PW4); and the Class A supervisor, Edwin Ng (PW11), amongst others. These were all professional men who relied upon a resident engineer to inform them if the work was not going according to plan. It was never suggested to any of them that they knew that D3 was there in name only and that there was in fact no resident engineer daily on site. If there had been the slimmest chance that suggesting such to them could have helped D3 I have no doubt that it would have been put.

5. D3 was an evasive and poor witness. A reading of his evidence reveals attempts to avoid the questions or resort to the unrealistic. Examples which come readily to mind are his assertion that he initialled the daily progress records of the piling work prepared by the main contractors in the 'checked by' section without having any idea why he was doing so; his claim to need to look at documents in the witness box to see if he went to the site at all in August 1998 before denying doing so, when that must have been a matter of burning significance from the moment he was aware that it was then and there that someone said he took a bribe; his claim that he could not remember, as he had not taken a note, if it had been put to Richard Wong (the registered structural engineer for the project whom he knew from before and who recommended him for this job) that he had told him the true position about what work he was to do. If there had been any truth in this claim, which he made in his evidence, he would have been bursting to have it adduced from the witness." (Emphasis added)

30. Mr Bruce complains that as demonstrated in the underlined parts of the two passages cited above, the Judge had clearly relied on the failure to cross-examine as a factor in its determination as to the credibility of D3 and the credibility of his defence. He submits that this approach taken by the Judge was fraught with danger, because there was no evidence on what instructions had been given by D3 to his counsel and how far counsel had properly executed his instructions.

31. The general rule requiring the putting of one's case to witnesses is well-established since Browne v Dunn (1893) 6 R 67, HL. The following passage in the headnote succinctly summarises the rule as approved by their Lordships in the House:

"If in the course of a case it is intended to suggest that a witness is not speaking the truth upon a particular point, his attention must be directed to the fact by cross-examination showing that that imputation is intended to be made, so that he may have an opportunity of making any explanation which is open to him, unless that is otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of his story, or the story is of an incredible and romancing character."

32. As to how far an inference can be drawn from a non-observance of the rule, it is instructive to read the judgment of King CJ in Manunta (unreported, Court of Criminal Appeal, SA, 28 July 1989), referred to in the judgment of Glesson CJ in R v Birks (1990) 48 A Crim R 382 at 399:

"It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matters might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds."

33. Mr Bruce specifically asked us to read the following passage in the judgment of R v Foley (1998) 105 A Crim R 1, at p 3:

"There are many possible explanations of a failure by counsel to observe the rule [that the cross-examiner's case be put to the witness], and some of these do not reflect upon the credibility of the client. Counsel for example may have misunderstood the instructions, or the failure may be through oversight. Jurors are not familiar with the rules and practices of preparation for trial, the special relationship between lawyer and client or counsel's duties and responsibilities to the court in conducting a case. If then a jury is to be instructed in a way which will permit adverse inferences to be drawn against the credibility of a defence witness, there must be at least some explanation of these factors, and particular mention of the possibility of other explanations such as misunderstanding or error on the part of counsel. It should also be made clear that before drawing an adverse inference against the accused, the jury should be satisfied that there is no other reasonable explanation for the omission to cross-examine."

34. Mr Bruce hastened to admit that the dangers involved in drawing inferences against an accused from the lack of cross-examination on an issue by him was one on which a jury should be cautioned and the dangers would be reduced where a professional judge and not a jury was the trier of facts. He also told us that he could not find a case where a professional judge was involved.

35. In the instant case, the fact that the person in Multiple Surveyors Limited who contacted D3 in respect of his appointment as the resident engineer of the site regarding piling was Andrew Lam (PW42) was put by counsel for D3 to PW3 Mr Benson Wong and also PW4 Mr Richard Wong who recommended D3's appointment. It was further put to Mr Richard Wong that before he introduced D3 to Multiple Surveyors Limited, D3 at some stage related to him the worry about not being available to work as a full time on-site engineer. Mr Richard Wong said he could not remember. Apart from these two matters, it had not been put to any of the prosecution witnesses, in particular the professional witnesses, namely the authorised person of the Project (PW3), the registered structural engineer (PW4) and the Class A supervisor (PW11) that there was an agreement between D3 and PW42 and that D3 was to be resident engineer in name only and he was not required to attend and did not attend the site to inspect the piling works, as alleged by D3 in his testimony later. These allegations were the crux of D3's defence which was, if we may say so, a simple case. There has been, up till now, no claim that counsel for D3 had failed in his duty in not putting this simple case to all the relevant witnesses. He merely asked questions to confirm that PW42 was the only contact with D3 regarding the latter's appointment as the resident engineer of the site and that D3 perhaps had told PW4 that he was otherwise busily engaged before he was appointed. There was never any dispute raised as to the proper duties of D3 as the resident engineer regarding the piling works. At pages 692-693 of the transcript, the Judge likened the situation as the prosecution's case being that D3 was employed to fly an aeroplane, which was never denied, and that D3 suddenly said that he was in fact not flying the aeroplane as employed. The Judge went on to comment on the fact of such a case not being put:

"... it wasn't put, it should have been put then, especially when his employers were there. And your case is that Lam (PW42) on behalf of the employers, Benson Wong and his company Multiple Surveyors Limited employed him to do something. Your case is they agreed to something else. The idea that their subordinate, Lam, would've done what by himself without involving Wong is laughable, isn't it? Therefore it should've been put to Mr Wong. So, your company was doing it on this basis. Then if you want to run Mr Lam was doing it by himself without Wong's complicity then obviously people would look at whether or not Mr Lam should call (sic) at the right stage. That's the whole point of getting the issues ventilated ...."

36. It is when D3 testified before the Judge that he first started to deny his admissions of his visits to the site and inspection of the progress of the piling works that he had made to the ICAC. He had to have the Judge believe that those admissions were lies and the opposite was true, and that his case was that he was merely failing to discharge his duties as the resident engineer rather than involved in the conspiracy as charged. His alleged agreement with PW42 that he was resident engineer by name only could then feature. The Judge correctly rejected his evidence. Indeed, one does not know whether his evidence was a lie or his admissions to the ICAC were lies, or both were. Little weight could properly be attached to anything D3 said, in and out of court.

37. In his criticism of the Judge's remarks concerning the import of the failure by counsel for D3 to suggest to key witnesses that the applicant was an absentee and nominal resident engineer, witnesses who might be expected to know the facts one way or the other, Mr Bruce has missed the point entirely. He says that "the unavoidable implication of [the Judge's comments] is that the Judge thought that the defence was one made up ex improviso to suit the gaps in the prosecution case and that as a result it was less credible." That was simply not the point of the Judge's comment. It had nothing to do with evidence made up by a defendant ex improviso. What the Judge was saying, quite obviously, was that here was a defendant who did not put the very essence of his case, a case known all along, to material witnesses, because he knew what the answers would be, and he did not want the court to hear those answers. In fact the Judge said so in terms when he castigated counsel for never putting the matter. He rhetorically asked counsel why he had not put that defence and he went straight on to provide the answer: "Because if you'd have put it to some of those witnesses I dare say [they would have said] yes, he was [there]."

38. The Judge also said quite rightly that it was laughable to suggest that a subordinate (PW42 Andrew Lam) would have agreed to the suggested arrangement without his boss, the authorised person, knowing. To shy away from exploring the issue with the authorised person was to cement the natural assumption that D3 was on site but that his defence was that he did not know of any misbehaviour in the performance of the piling works. Of course one must take care before drawing adverse conclusions as to credibility by reason of a failure to cross-examine on a certain issue, or to put a particular point. But that is not to say that it cannot be done. Whether it is properly done and to what end all depends on the case, and the issue, and the point omitted or avoided in cross-examination. In this case, the Judge drew an inference which any experienced judge who knows a thing or two about court craft and the realities of criminal litigation would have drawn. The matter omitted in cross-examination of the prosecution witnesses was not a matter which touched upon an isolated topic; it was a matter which was the very essence of the case for the defendant.

39. The Judge has addressed precisely the features of evidence which are telling in deciding whether a witness has or has not told the truth. Instead of producing some mantra about observing witnesses or referring to some suggested inconsistencies, the Judge pointed to more fundamental and common sense indicia to the truth, such as inherent probabilities. So, for example, he tested credibility by asking how people of D3's intelligence, experience and professional qualification would behave if put in the innocent yet awkward position which D3 asserted to have been his position at the material times; and he found that the manner in which D3 in fact conducted himself, a manner which was not disputed, simply did not fit with D3's account. This was made abundantly clear in the first of the passages in the Judge's reasons that we have cited in para 16 above. Frankly, one need go no further than that to see the truth of this case.

40. Mr Bruce then argued that it was incumbent on the Judge to make clear in his reasons for verdict that he had in mind the dangers that can attend drawing adverse inferences from the failure to put matters in cross-examination. There are two answers to this particular argument. First, it was not necessary in the circumstances which we have described for the Judge to spell this out. It is clear from the exchanges between him and counsel that the Judge specifically addressed the question what possible reasons there might be for the omission. Secondly, one wonders what possible reason other than that deduced by the Judge there could have been. Mr Bruce has canvassed some of them, and the essence of his contention is that the Judge has assumed, perhaps incorrectly, that the accused gave full and detailed instructions to his lawyers. But it was not a question of detail or even topic. It was a question of the defence itself. Mr Bruce says that we all know that sometimes defendants change their tune once they reach the witness box; in other words, a defendant might suddenly depart fundamentally from the proof from which his counsel has been working. No doubt that sometimes happens. That it did not happen in this case is self-evident from the spontaneity of the exchange between counsel and the Judge during the examination-in-chief of D3, which we see at page 686 of the transcript:

"Q. Mr Yu, after the God worshipping ceremony did you appear at the construction site thereafter?

A. No.

COURT: Sorry, is your case that he didn't appear at all at the building site after the God worshipping?

Mr Ching: Yes."

41. Once D3's evidence was rejected, what was left was the evidence adduced by the prosecution, consisting of the duties that D3 ought to have performed, the evidence of his signing the "checked by" sections of the daily progress piling reports, the evidence of D1 handing to him a wad of $1,000 notes, and the evidence that PW42 had telephoned D3 during the course of the piling works to check progress and D3 had told him that everything was in order. All these and the nine sub-paragraphs of reasons given by the Judge enabled the Judge to draw the only irresistible inference that D3 was involved in the conspiracy as charged. In all the circumstances of this case, we are of the opinion that the Judge correctly commented on the absence of putting D3's simple case to the relevant prosecution witnesses as a further ground for disbelieving him. Ground (2) lacks any merit.

Conclusion

42. For all the above reasons, the application must be dismissed.

Loss of time

43. As we have already indicated, the grounds of appeal have no merit whatsoever.

44. D3's application for leave to appeal signed by him on 17 November 2000 was contained in Form XI (pursuant to the Criminal Procedure Ordinance, Cap 221), which has the following notes in both English and Chinese:

Notes:	1.	On an appeal against sentence, the Court of Appeal has power under section 83I of the Criminal Procedure Ordinance to either increase or reduce the sentence.
	2.	If you wish to seek Legal Aid for your appeal, you must complete and submit to the Director of Legal Aid, the appropriate Legal Aid Application Form as soon as possible.
	3.	The Court of Appeal has power under section 83W of the Criminal Procedure Ordinance to direct that the time during which you are in custody pending the determination of your appeal shall not be reckoned as part of the term of any sentence to which you are for the time being subject.

45. It is with reference to "Note 3", giving the Court power to order what is usually referred to in short form as "loss of time" that we propose to indicate that we would have ordered loss of time but for the fact that this may seem to represent a departure from the frequently encountered practice of issuing a reminder from the Court to an applicant or, if represented, his counsel, that the Court had in mind its powers under section 83W of the Criminal Procedure Ordinance.

46. If there is an assumption by litigants or their legal representatives that such a warning is usually given as to the Court's powers, whether under section 83W for ordering loss of time or under section 83I for increasing sentence, we wish to make it plain that this should no longer be expected. In future, the Court will in normal circumstances not issue a reminder as to the Court's powers under either section.

47. For these purposes, the Court will assume that litigants seeking to appeal against conviction or sentence or both have properly understood the notes on Form XI which they have signed or, where they are legally represented, that they have been properly advised of the terms of sections 83I and 83W of the Criminal Procedure Ordinance and the circumstances in which those provisions are invoked.

48. We have decided in the present case, since we issued no reminder and the applicant may have operated under the assumption to which we have referred, that we should not order loss of time on this occasion. In this respect he is extremely fortunate. We emphasise that in future, there should be no expectation of a reminder being issued where an increase in sentence or an order for loss of time is contemplated by the Court.

49. The same point is made in a judgment in Chinese handed down today by another division of this Court in HKSAR v CHAU Ching-kay, Nauthum, CACC 505 of 2000.