CACC 137/2005 and
CACC 125/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NOs. 137 AND 125 OF 2005

(ON APPEAL FROM DCCC NOs. 1117 of 2003 and 12 of 2004)

____________________

BETWEEN

____________________

Before:   Hon Stuart-Moore VP, Yeung and Tang JJA

Date of Hearing: 16 June 2006

Date of Judgment: 16 June 2006

Date of Reasons for Judgment: 3 July 2006

___________________________________

reasons  for  JUDGMENT

___________________________________

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

Background

1.  On 31 May 2004, the applicant was convicted in the District Court, following a trial before Deputy Judge Dufton, on three charges (charges 1, 3 and 6) of using a copy of a false instrument, contrary to section 74 of the Crimes Ordinance, Cap. 200 and two charges (charges 2 and 7) under section 73 of the same ordinance of using a false instrument.  The applicant was sentenced on the same day to a total of 4½ years’ imprisonment.

2.  The prosecution offered no evidence on charge 5 and a verdict of acquittal was formally entered.  The judge acquitted the applicant on the 4^th charge.

3.  The applicant, in CACC 137/2005, sought leave to appeal against conviction and sentence out of time.

4.  At the start of the applicant’s trial, the prosecution applied to add a further charge.  This application was duly and quite properly rejected.  The prosecutor had not even bothered to have the charge reduced into writing and defence counsel was apparently intent on using the application as a means of delaying the start of the trial.

5.  In due course, this additional charge became the subject-matter of a separate charge sheet which, in these proceedings, is CACC  125/2005.  Following a trial in the District Court before Deputy Judge D I Thomas, the applicant was convicted on 23 February 2005 of possessing false instruments, contrary to section 75(2) of the Crimes Ordinance (charge 2).  He was sentenced on the same day to a term of 18 months’ imprisonment to run concurrently with the sentence he was already serving.  The judge acquitted the applicant on a more serious alternative offence (charge 1) under section 75(1) of the same ordinance.

6.  The applicant in CACC 125/2005 sought leave to appeal against conviction.

7.  In both applications in regard to conviction we refused leave and in CACC 137/2005 we also refused leave to appeal against sentence.  We now give our reasons for dismissing the applications.

CACC 137/2005

8.  The seven grounds of appeal advanced on the applicant’s behalf in CACC 137/2000 did not give rise to any requirement for a detailed analysis of the evidence against the applicant which was essentially extremely straightforward.  It was the prosecution’s case that the applicant caused the false instruments or, as the case may be, copies of false instruments which were identified in each of the charges, to be produced, either by himself or through an intermediary, to a variety of banks.  These banks were shown what purported to be genuine originals or copies of Bank Negara Indonesia (BNI) documents.

9.  It will suffice for present purposes if we set out the particulars of the 1^st charge as an example of the allegations made against the applicant.  These were as follows:

“Ng Jit-man, on the 4^th day of December 2000, inside Sumitomo Bank Limited, 7^th Floor, One International Finance Centre, 1 Harbour View Street, Wanchai, in Hong Kong, used copies of instruments, namely, (1) a copy of Bank Draft of $5,000,000.00 United States currency from PT. Bank Negara Indonesia (Persero) Tbk, in serial number 182970, (2) a copy of confirmation letter from PT. Bank Negara Indonesia (Persero) Tbk to Mr Ng Jit-man dated the 8^th day of November, 2000 related to the Bank Draft in serial number 182970, (3) a copy of authentication letter issued from PT. Bank Negara Indonesia (Persero) Tbk, in serial number 182970, and (4) a copy of telegram from PT. Bank Negara Indonesia (Persero) Tbk related to a Bank Draft amount $5,000,000.00 United States currency, which were, and which he knew or believed to be, false, with the intention of inducing Sumitomo Bank Limited to accept them as genuine, and by reason of so accepting them to do or not to do some act to their own or any other persons prejudice.” (Appeal bundle p. 1)

The remaining charges related to offences which were allegedly committed on various days in February and March 2002.

10.  The prosecution in each case relied upon the evidence of bank staff who received the BNI documentation and also the testimony of Mr Subagio, the general manager of the only branch in Hong Kong of BNI, to establish the falsity of the BNI documents.  The applicant’s identity, as the person who used the documentation in question, was not in dispute.

11.  The applicant did not testify at trial.  Instead, a concentrated attempt to undermine the evidence given by Mr Subagio was made by the defence.  Clearly, an acceptance of Mr Subagio’s testimony was fundamental to the success of each charge brought against the applicant.

12.  The first five grounds of appeal maintained an approach of a similar kind to that which had been adopted at trial.  However, the focus of criticism had shifted to the judge’s rulings and findings in relation to Mr Subagio’s evidence.  The grounds were in these terms:

“1. The Judge erred in permitting evidence of a quasi-expert nature from Subagio, when no explanation was given as to why the best evidence, namely from those persons whose signatures were allegedly forged, had not been called.

2. The Judge erred in accepting as proof beyond reasonable doubt the ‘expertise’ of Subagio as to the practi[c]e of Bank of Negara’s (BNI) head office when:

(i) His evidence taken as a whole and line by line was for the most part incomprehensible and clearly not always comprehend[ed] by the Court.

(ii) He was not an independent witness.

(iii) He had not reached the seniority of the signers of the documents and may well have been unaware of their current practices.

(iv) There was no evidence as to current practices in BNI’s head office in Jakarta.

(v) There were no sample documents produced from BNI’s head office with which to compare Subagio’s evidence.

3. The Judge erred in permitting the witness Subagio to embark on a comparison of signatures exercise, when he was admittedly not an expert in the field.

4. The Judge erred in finding, in the absence of any evidence, that the specimen books which purportedly contained the signatures of Rachmat Wiriaatmadja (‘Rachmat’), Eko Budiwiyono (‘Eko’) and Binsar Pangaribuan (‘Binsar’) were genuine.

5. The Judge, not being satisfied that it had been proved that the signatures of Eko and Binsar were forged, erred in failing to conclude that the signatures were more likely tha[n] not, genuine and thus gave verisimilitude to the documents.”

13.  We can deal very briefly with each of the points made in these grounds.

14.  Mr Subagio was an expert on BNI banking practice.  Trial counsel for the defence was asked by the judge if he took issue with Mr Subagio being declared an expert witness in this regard and counsel’s reply was: “No, we take no issue.”  Counsel was well-advised and made a sensible decision not to query Mr Subagio’s expertise as this witness had worked for BNI for over 23 years not only in Hong Kong but in London and the Head Office in Jakarta amongst other places.

15.  Mr Subagio also gave evidence about the signatures appearing on a number of the documents which were allegedly false.  He was not, of course, a handwriting expert and the judge, equally obviously, did not treat him as such.  Mr Subagio was familiar with the signatures of two senior BNI bank officials and by means of his familiarity with those signatures and pursuant also to section 17 of the Evidence Ordinance, Cap. 8, he was able to satisfy the judge that one of these signatures appearing on a number of documents was a forgery.  In no sense, therefore, was Mr Subagio treated as a “quasi-expert” in relation to handwriting as Mr Grossman SC described him.  There had, it appears, been unwise attempts by the prosecutor to treat Mr Subagio in such a way but these were firmly prevented by the judge.

16.  The prosecution had no need to call the persons whose signatures had been allegedly forged.  They were able to prove the signature of at least one of the signatories had been forged through Mr Subagio’s testimony.  The complaint at this stage that these persons could have been called is somewhat hollow as their identities were known to the defence and it seems that no attempt was made at the trial stage to pursue any avenue of enquiry in that direction.

17.  In the 2^nd ground, a variety of complaints were made of which none had any substance.  Perhaps the unfairest criticism was that Mr Subagio’s  evidence was “incomprehensible”.  He gave his evidence in English and sometimes he had plainly failed to understand a question he had been asked or he spoke too fast.  The judge dealt with these problems with admirable tact and these matters were easily and quickly resolved.

18.  Mr Subagio’s alleged lack of independence as a witness was an issue raised at trial and the regurgitation of the point in these proceedings made it no stronger than before.  However, although Mr Grossman conceded that this allegation was perhaps an “overstatement”, he nevertheless maintained the point as a ground of appeal.  As the judge remarked, only someone who worked at BNI could give evidence as to the authenticity of documents issued in their name.  We can add, adopting what was said in R v Chung Chen-hsin [1996] 2 HKC 156 at 160 that:

“… possible lack of expertise (not ‘evidence’ as the typographical error in the law report which also appears in the headnote seems to suggest) is only relevant to the weight to be attached to [the expert’s] evidence.  If his opinions are clouded by any bias in favour of the [investigators], that will be a matter for the jury to assess …” (Emphasis added.)

19.  Leaving aside that a possible lack of impartiality goes only to the weight of the evidence and not to its admissibility, it is in any event abundantly plain that Mr Subagio was independent of the prosecution.  BNI, as Mr Turnbull for the respondent pointed out, had no particular interest in the outcome of the proceedings.  The documentation which the prosecution alleged was forged was not presented to BNI but to various other banks in Hong Kong and it was those banks which were placed at risk.

20.  As to Mr Subagio’s knowledge of the “current practices” of BNI, he provided ample evidence of his knowledge in this regard and he also testified that the two persons whose signatures he identified as forgeries were in no position, from “February 2000”, to have signed the documents, the subject of charges 1, 2 and 6 which all bore later dates.  In addition, and perhaps most significantly of all, Mr Subagio indicated that there were other glaring discrepancies in the format of the false documents, quite apart from whether the signatures were forgeries, from which he was able to say that these documents were not genuine.

21.  The next point, in relation to there being no evidence “as to current practices in BNI’s head office in Jakarta” was a matter which the judge was invited to consider at trial.  In our view, he was right to have rejected this as a valueless point.  Mr Subagio was, with strong justification, treated as an expert in BNI practices.  No objection was raised at the time he was called to testify, he occupied a senior position and he was well able to deal with the authenticity of documents said to have been issued by his bank.

22.  It was lastly said in relation to the 2^nd ground of appeal that no genuine documents were produced as samples from BNI’s head office to compare with the allegedly false documents produced in court.  Here, Mr Grossman was on slightly stronger ground because, as the judge had quite understandably indicated, it would have been “of assistance” to have had specimen documents for this purpose.  However, he went on, again rightly in our view, to say that the expert witness was not giving evidence about “scientific or technical matters”, and he continued:

“… What was described with regards to the format of the documents is understood without the need for sample documents from the bank to be shown, although of course this would have been better.  The failure to do so does not in my view undermine in any way Mr Subagio’s evidence.” (Appeal bundle p. 27)

Furthermore, it appears that no application was made by the defence to have such documents placed before the court.

23.  The 3^rd and 4^th grounds can be taken together.  These deal with different aspects of Mr Subagio’s evidence concerning two of the signatures on the false documentation.

24.  Mr Subagio had given evidence of his extensive knowledge of the two persons in question with whose handwriting he was extremely familiar.  The law is well settled in this regard and it suffices merely to refer to the summary provided in Archbold Hong Kong [2005] at paragraphs 9-64 which reads:

“Evidence may be given by a witness who has seen the accused write in order to establish that a document is in the hand of the accused. Even if they did not witness the writing of the document in question, subject to laying the proper foundation as to the witness’s knowledge of the accused’s handwriting, such evidence may still be admissible: Lucas v Williams & Sons [1892] 2 QB 113. It may even be sufficient for the witness to have seen only one such occasion: Burr v Harper (1816) Holt NP 240; Lewis v Sapio (1827) M & M 39, but this will depend upon the circumstances of each case. It is not necessary that the witness has seen the author physically write if he has experience of the author’s writing by reason of business or correspondence: Doe d Mudd v Suckermore (1836) 111 ER 1331.”

25.  Mr Subagio also gave evidence about the BNI specimen signature books which came in part from the Hong Kong office and in part from the Head Office in Jakarta.  Counsel at trial raised no objection to the production of these exhibits which provided illustrations of the genuine signatures of those whose signatures were questioned on the documentation itemised in the charges against the applicant.  The objection to these, raised for the first time in defence counsel’s speech and repeated at this stage by Mr Grossman, was misconceived.

26.  Turning to the 5^th ground, the judge indicated in relation to one of the questioned signatures that it would be “unsafe” to rely solely on Mr Subagio’s evidence because, while there were differences in style, there were similarities as well.  In regard to another signature altogether, where Mr Subagio had been unable to express a view because he was not familiar with it, the judge made no finding as to whether this was a forgery.  Mr Grossman’s contention that, in these circumstances, the judge should have concluded that the signatures were most likely to have been genuine was neither logical nor, with respect, was it sensible.  It was not for the judge to make an assumption that the signatures were genuine where there was much else to be considered which indicated that the documents were forgeries, including at least one other signature which the judge was satisfied was a forgery.  The obvious likelihood, to use Mr Grossman’s approach, was that the two signatures, the subject of this complaint, were in fact forgeries but, rightly, the judge explained his reasons for concluding that he was unable to be sure of this from Mr Subagio’s evidence.

27.  The 6^th ground of appeal was stated in these terms:

“In coming to a conclusion as to the [applicant’s] guilt beyond reasonable doubt, the Judge, in drawing an adverse inference from the [applicant’s] failure to testify, misapplied the authority of Li Defan v. HKSAR [2002] 5 HKCFAR 320.”

28.  The judge drew a number of inferences from the evidence presented against the applicant which, in overall effect, provided an overwhelming case against the applicant in the absence of any explanation from him.  It would have been open to the applicant to explain how he had come into possession of the documents which the judge was satisfied were forgeries.  He could also have provided some explanation about his state of mind both in relation to the documents themselves and also in regard to his actions when producing them to others or getting another person to do so on his behalf.

29.  The judge was well aware of the judgment in Li Defan v HKSAR [2002] 5 HKCFAR 320 and he made reference to it.  There were numerous facts which were, “peculiarly within the accused’s knowledge”, to adopt a phrase from Weissensteiner v The Queen [1993] 178 CLR 217 which was extensively cited at paragraph 27 in Li Defan’s case.

30.  There is no substance in this ground.

31.  In the final ground of appeal against conviction, Mr Grossman argued that on the 1^st charge there was no evidence that the applicant “sent the telegram in question or ever intended to defraud Sumitomo Bank or any other bank”.

32.  Charge 1 was to some extent concerned with evidence about what purported to be a copy of a BNI telegram.  The judge’s finding, so far as it is relevant to this ground, was as follows:

“… Notwithstanding these differences the unchallenged evidence is that the defendant caused the documents to be faxed to Mr Lau and asked Mr Lau to take the documents to a bank to see if the documents could solve the financing matters with the bank and whether they could be used as a guarantee for the bank to grant a loan. This is exactly what happened, Mr Lau faxing the documents to Tony Chan at the Sumitomo Bank for that purpose.” (Appeal bundle p. 34)

33.  Mr Grossman submitted in his written argument that no intent to defraud had been established.  However, as an intent to defraud was not an ingredient of the 1^st charge we do not need to pursue this ground further.  Indeed, in fairness to Mr Grossman, he did not develop the point in argument before us.

34.  There was no substance in any of the grounds of appeal in regard to conviction.  It is plain that the trial was conducted with the utmost fairness on the judge’s part.  In our opinion, the reasons given by the judge for convicting were sound and his application of the law was faultless.

35.  Accordingly, this application was dismissed.

36.  We turn lastly, in relation to CACC 137/2005, to sentence.

37.  The applicant was sentenced on the 1^st charge to 18 months’ imprisonment, he received concurrent 3-year sentences on charges 2 and 3 and, on the 6^th and 7^th charges, concurrent terms of 2 years’ imprisonment were imposed.  The judge further ordered that 9 months of the sentence on the 1^st charge should run consecutively to the 3-year term on the 2^nd and 3^rd charges, and that 9 months of the 2-year term on charges 6 and 7 should also be served consecutively to the 3-year term on charges 2 and 3.  This made a total of 4½ years’ imprisonment.

38.  In passing sentence, the judge said amongst other things:

“2. Charge 1 was committed in December 2000 and concerned a series of documents comprising of a copy of a bank draft in the sum of US$5 million (exhibit P1(e)) and three supporting documents, a copy of a letter of confirmation (exhibit P1(a)); a copy of a letter of authentication (exhibit P1(b)) and a copy of a two page telegram (exhibit P2(c) and (d)).

3. In summary Mr Lau Ming-yiu (PW1) was running the Kam Kuen Construction Company Limited. In May 2000 Mr Lau bid for a contract in the East Rail Development but was unable to raise money to finance the project because the bank would not lend him the money.

4. Mr Lau mentioned this to the defendant whom he had come to know as a regular customer of a Chiu Chow restaurant in which Mr Lau had an interest. Mr Lau told the defendant that the bank required a guarantee and asked the defendant if he had any methods to obtain a guarantee from the bank so a loan could be arranged. The defendant said that he was going to Indonesia and would try to see if he could make a loan arrangement with banks in Indonesia.

5. On the 4th December 2000 the defendant telephoned Mr Lau and told him documents would be faxed to him and asked him to see if the documents could solve the financing matters with the bank and whether they could be used as a guarantee for the bank to grant a loan. Mr Lau received the documents (exhibit P1 (a)- (e)) by fax the same day.

6. After discussing the matter with his insurance agent Alan Tang (PW2) Mr Lau faxed the false documents to Tony Chan Chun-chuen (PW3) at the Sumitomo Bank Limited. The bank reported the case to the Commercial Crimes Bureau.

7. Charges 2 and 3 arose out of the defendant’s attendance at the Hong Kong Bank (HSBC) on the 21st February 2002. The defendant submitted the false documents (exhibits P7 (a)-(e) and P8(a)-(c)) to open a securities account for the safe keeping of his US bonds purportedly issued by BNI. The bank guarantees were in the sums of 5 x US$100,000,000.00 (exhibit P8(a)) and US$1,000,000,000.00 (exhibit P8(b)).

8. Charge 6 arose out of the defendant’s attendance at the Bank of East Asia on the 18th February 2002. The defendant went to the bank to open a savings account and whilst there handed the false documents (exhibits P9(b)-(1)) to the bank for their reference. The amounts are the same as in charges 2 and 3.

9. Charge 7 refers to a telegram received by the Bank of East Asia on the 19th March 2002 purportedly sent by BNI verifying the bank guarantees issued to the defendant and referred to in exhibits P9(b)-(1) handed to the bank when the defendant attended the bank on the 18th February 2002.

10. The defendant was engaged in using false documents to the prejudice of the banks with the intention of securing financial advantage in 2000 and 2002. Fortunately no banks were deceived by these documents and have not therefore suffered any loss.

11. I take into account that in respect of charge 1 the defendant was not to directly benefit from the use of the false documents and that in charges 6 and 7 he had not asked for any specific benefit from the bank. Charges 2 and 3 however were used specifically for the purpose of opening a securities account, which if successful would have verified the authenticity of the documents and acted as collateral to the bank in applying for credit facilities.

12. In passing sentence I take into account all that said on behalf of the defendant by Mr Yu.  I take into account the defendant has a clear record.”

39.  The purpose of reciting the reasons given by the judge for the sentence he imposed is that these provide an answer to the three grounds of appeal raised by Mr Grossman in his written argument which amounted to a submission that the sentence was manifestly excessive.

40.  The 1^st of these grounds was that there was “no loss to the banks nor could there be”.  The judge was well aware there was no loss but the assertion that there could never have been a loss is a little hard to understand.  The applicant had gone to all the trouble of obtaining this false documentation, including bank guarantees purportedly in sums of USD 5 million and USD 100 million.  Plainly, there was a large potential for loss when the reasons for the applicant taking possession of such items are sensibly considered.

41.  Mr Grossman submitted that on an acceptance of Mr Subagio’s evidence the false documents were so obviously forged that this was simply a clumsy attempt at deceiving the banks which was doomed to failure.  This speculative approach was not embarked upon by the judge and, equally, we do not propose to go along this route.  No doubt, there are more sophisticated methods by which to obtain funds from banks but this case had to be dealt with on its merits.  The judge clearly had all the relevant factors in mind.

42.  The next ground was wholly misconceived.  This alleged that the 1^st offence was “initiated” by PW1 and there was “no advantage” to the applicant.  In this case, the applicant had offered to assist PW1 in obtaining a loan from a bank.  The applicant then faxed the forged documentation to PW1 asking PW1 to take these items to the bank to see if his financial problems could be resolved by using them.

43.  If it is now alleged that PW1 had been acting in a fraudulent way when using the documents, this is a new suggestion and one which is highly speculative.  PW1’s evidence at trial about the request he made to the applicant for help and what then followed was not contradicted.  It could not be more obvious that the applicant was directly concerned in this offence and we do not propose to speculate about the possible benefits he could have derived for himself from this activity.

44.  The last ground criticised the length of the sentences on charges 6 and 7 as the false documents provided to the Bank of East Asia were merely to “give comfort” to the bank and were not in themselves intended to obtain credit facilities or for opening a bank account.  The reality is that the documents referred to in count 6 were intended, as the judge stated, to show that the applicant “had money”.  The copied telegram in charge 7 was supposed to verify the copy of a guarantee which was already in the bank’s possession.  Plainly, significant credit might have been obtained from the bank if it had accepted the documentation as genuine.

45.  The applicant has at no stage shown the slightest remorse and it was quite clear to us that the sentence was an appropriate one.  In saying this, we make it clear that we derived no assistance from the sentencing decisions in other cases provided to us by Mr Grossman.

46.  This application was, therefore, dismissed.

CACC 125/2005

47.  The facts in CACC 125/2005 were extremely straightforward.  On his arrest at the airport on 28 August 2003, the applicant was found to be in possession of three false instruments, purportedly bank guarantees issued by the Union Bank of Switzerland (UBS) in the sums of USD 1 billion, USD 500 million and USD 200 million respectively.

48.  The prosecution called a representative of UBS to prove the falsity of these documents.  He was able to point to numerous indications of forgery to illustrate this.  In one graphic turn of phrase, he described one of the so-called guarantees as “a bit screwy” in the light of several faults he had found with it.  As the judge indicated in his Reasons for Verdict, there was “no real challenge as to their falsity”.

49.  The issue at trial centred upon whether the applicant knew or believed the documents were false.  He testified at his trial on this occasion, denying any realisation on his part that the documents were not genuine and he provided a full account of how he came to be in possession of the documents in the first place.

50.  In the course of his evidence, the applicant spoke of his success in business but he also suggested he was naïve and was lacking in worldly knowledge.  He also explained that he had only recently received the documents before leaving Indonesia and coming to Hong Kong.  He was, according to him, on his way to Zhuhai where he would have been able to find out from the authorities if the documents were acceptable for the purposes of a proposed investment in the Mainland.  In these circumstances, he had not been able to speak to “Mr Soleh” who had given them to him.

51.  The judge rejected the majority of the applicant’s account and convicted him.

52.  Mr Grossman raised two grounds of appeal.  These were as follows:

“1. The Court erred in that having acquitted the Applicant on Charge 1 it should logically, and by the same reasoning, have acquitted him on Charge 2, in that if the Court was unable to find that the Applicant intended to use the documents then the only other logical explanation for his possession of them was that he did not know that they were forged.

2. The Court erred in this assessment of the Applicant’s evidence, in that it wavered between finding that he was naïve (which would have been to the Applicant’s benefit) and ‘savvy’ (which was to the Applicant’s detriment).”

53.  The judge gave detailed reasons for arriving at his conclusion that the 1^st charge, brought under section 75(1) of the Crimes Ordinance, had not been proved and he ended by saying amongst other things:

“56.   The difficulty of course the prosecution has is that, as I have indicated, their case begins and indeed ends at the Airport Police Station.  I have been able to accept that the prosecution has proved the knowledge of the defendant as to the falsity of these documents very largely by reference to the defendant’s own evidence. But the reason given by the defendant is one that on his view or at least his assertion in the box was a legitimate one. I have indicated that I do not accept the evidence of the defendant with regard to the issues in this trial, but that means that there clearly is a doubt as to what the defendant was going to use these documents for and at this point the entirety of the matter dissolves into a morass of speculation.”

Section 75(1) requires proof that the alleged offender, or another person, will use the false documents in question to induce somebody to accept them as genuine and, by reason of so accepting them, to do or not to do some act to his own or any other person’s prejudice.  In the light of his findings on the 1^st charge and in particular his conclusion that the dual intent under section 75(1) had not been proved, the judge, therefore, convicted the applicant under section 75(2) on the 2^nd charge of simple possession of false instruments.

54.  There was, in our opinion, nothing inconsistent in the judge’s approach when acquitting on the 1^st charge and convicting on the 2^nd.  The judge was, in simple terms, unable to say conclusively what purpose would be made of the documents although he was sure that the applicant was well aware of their falsity.  In such circumstances, the judge recorded the only verdicts properly open to him.  This ground was misconceived.

55.  So far as the 2^nd ground was concerned, we were not been able to detect an error in the judge’s assessment of the applicant’s evidence.  More specifically, the judge did not waver between finding that the applicant was “naïve” on the one hand or “savvy” on the other.  It was, as we have indicated already, the applicant who did this.  The judge expressed his own assessment of the applicant, saying that he was:

“… not a stupid man.  I most certainly do not believe either that he is naïve.” (Appeal bundle p. 25)

56.  A little later, the judge said:

“… I have no doubt whatsoever that the defendant was indeed, as he portrayed to me, an intelligent, successful, at times prosperous, savvy and streetwise businessman who has clearly managed to survive and prosper …” (Appeal bundle p. 28)

57.  There was no substance in this ground.

58.  Accordingly, for the reasons we have given, this application was also dismissed.

Mr R G Turnbull, SADPP, of the Department of Justice, for the Respondent.

Mr Clive Grossman, SC, instructed by Messrs Ivan Tang & Co., for the Applicant.