HKSAR v. KWOK ON FA

   [English translation – 英譯本]
CACC 322/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 322 OF 2007

(ON APPEAL FROM DCCC NO. 68 OF 2007)

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REASONS FOR JUDGMENT

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

The three charges

1. The Applicant was charged with the following three offences:

(1)    Being an agent, conspiring to accept an advantage, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance (Cap. 201 of the Laws of Hong Kong) and the common law;

(2)    Being an agent, conspiring to accept an advantage, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance and sections 159A and 159C[1] of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong);

(3)    Conspiracy to defraud, contrary to the common law.

2. The Applicant pleaded not guilty to the charges. After trial before Deputy District Judge Yim, the Applicant was convicted on all three charges. He was sentenced to imprisonment for 4 years for each of Charges (1) and (2), and the sentences were ordered to run concurrently. He was sentenced to imprisonment for 2 years for Charge (3), and 6 months of the term was ordered to run consecutively to the sentences for Charges (1) and (2). The total term of imprisonment was therefore 4 years and 6 months.

3. Furthermore, in respect of Charges (1) and (2), the Applicant was ordered to pay compensation in the respective sums of HK$800,000 and HK$650,000, totalling HK$1,450,000, to his employer AIG Finance (Hong Kong) Limited (hereinafter “AIG Finance”) (formerly known as “SPC Credit Limited” (hereinafter “SPC Credit”)). The Applicant applied for leave to appeal against the convictions.

4. Having heard the application, we refused to grant leave. We now set out our reasons for the decision.

Overview of the prosecution case

Charges (1) and (2)

5. The Applicant was formerly employed by AIG Finance as a branch manager. AIG Finance did not allow its employees to solicit or accept any advantage from customers in the course of business dealings. During the period between October 1990 and December 1999, the Applicant conspired with one Fung Bing Yan (馮炳仁) (hereinafter “Fung”) (i.e. PW2), a client of AIG Finance, and other persons concerned, whereby the Applicant, in his capacity as an agent of AIG Finance, assisted Fung and those other persons in obtaining loans from AIG Finance, and Fung provided the Applicant with an advantage whenever a loan was obtained.

6. Charges (1) and (2) respectively covered the periods from October 1990 to 1 August 1996 and from 2 August 1996 to December 1999. During these two periods, Fung offered the Applicant bribes in the total sum of approximately HK$10,000,000.

Charge (3)

7. Charge (3) alleged that between October 1990 and August 1999 the Applicant and Fung conspired to defraud AIG Finance by agreeing to supply false information and documents to AIG Finance, thereby causing AIG Finance to grant the loans. The loans were secured by some pieces of land in the New Territories which were owned by Fung. Of the 7 pieces of land in question, 6 related to Charge (3). These securities were falsely described as “land on which buildings have been erected”. In fact, no building whatsoever had been erected on 5 of the 7 pieces of land on which 3-storey village houses were claimed to have been erected; and nothing other than a dilapidated house was found on another piece of land on which a 3-storey village house was claimed to have been erected.

8. Details of the aforesaid 7 pieces of land were as follows:

(1)    The Remaining Portion of Lot No. 719 in Demarcation District (“DD”) No. 111 of Ha Che, Yuen Long (hereinafter “Property 1”)

(2)    Lot No. 28 in DD No. 111 of Ha Che, Yuen Long (hereinafter “Property 2”)

(3)    Lot No. 212 in DD No. 111 of Wing Ning Lane, Pat Heung, Yuen Long (hereinafter “Property 3”)

(4)    Lot No. 156 in DD No. 111 of Tai Shan Village, Pat Heung, Yuen Long (hereinafter “Property 4”)

(5)    Lot No. 23 in DD No. 120 of Tin Liu, Yuen Long (hereinafter “Property 5”)

(6)    Lot No. 75 in DD No. 120 of Tin Liu, Yuen Long (hereinafter “Property 6”)

(7)    Ground Floor to 2^nd Floor, Lots Nos. 36 and 37 in DD No. 111 of Wing Ning Lane, Pat Heung, Yuen Long (hereinafter “Property 8”)

Investigations by the Bank

9. By the end of 2000, Fung was indebted to AIG Finance for a sum in the range of HK$10,570,000 to HK$14,350,000. Upon investigations and re-valuation of the securities, AIG Finance found that the aforesaid pieces of land were in a state as described in paragraph 7 hereinabove, and that the actual values of the securities when the loans were granted were much lower than their estimated values.

Investigations by the ICAC

10. The matter was subsequently investigated by the ICAC. Before the ICAC took any action, the Applicant left Hong Kong for the USA on 1 May 2002. On 27 October 2006, law enforcement officers arrested the Applicant in the USA pursuant to a warrant of arrest issued by the Hong Kong court. The Applicant agreed to return to Hong Kong for trial and was extradited back to Hong Kong by the ICAC on 3 January 2007.

Fung’s evidence

11. Apart from holding a full-time job as a legal clerk in a solicitors’ firm, Fung ran businesses in developing village houses and transporting containers. Fung became acquainted with the Applicant in 1986 and then introduced to the Applicant some potential clients who would like to obtain loans. When after a long lapse of time the loans were still not granted, Fung made enquiries with the Applicant, who replied that “those above want tea money of HK$5,000 to HK$7,000 for each transaction”. Fung then relayed the Applicant’s request to the clients, who then agreed to pay tea money. Subsequently the loans were approved, and the tea money given by the client was handed to the Applicant in cash by Fung.

12. Between October 1990 and July 1999, Fung and the Applicant entered into an agreement on the following terms. The Applicant would process the loan applications referred to him by Fung and submitted to AIG Finance. For any successful application for a loan not secured by landed property, Fung would give the Applicant tea money equivalent to 10% of the loan amount; for any successful application for a loan secured by landed property, the Applicant could obtain tea money in an indeterminate sum. Fung paid the bribes to the Applicant in cash except on one occasion when the money was paid by means of a cash cheque. Furthermore, the Applicant would introduce clients to Fung’s solicitors’ firm for the purpose of executing deeds, and Fung would give the Applicant a commission equivalent to 40% of the legal fees paid by each client.

13. The transactions in which Fung obtained loans through the Applicant and offered bribes to the Applicant are set out below:

   Property 4

18.7.1990	Fung purchased Property 4 for a price of $230,000 upon completion.
15.10.1990	Fung applied to AIG Finance for a loan of $2,000,000, using Property 4 as security.
10.1990	The surveyor’s report by Vigers showed that a three-storey building was erected on Property 4, with an estimated value of $2,900,000.
25.10.1990	The loan application was approved. (Loan A)
26.11.1992	Fung applied to AIG Finance for a loan of $1,000,000, with Property 4 as security (in the form of a second mortgage) and with Fung’s wife as the guarantor.
12.1992	The report by Vigers also stated that a three-storey building was erected on Property 4, with an estimated value of $5,000,000.
12.1992	The loan application was approved. (Loan B)

   Properties 5, 6 and 3

8.1991	Fung purchased Properties 5 and 6 for a price of $80,000 upon completion.
8.1.1995	Fung and his wife applied to AIG Finance for a loan of $2,500,000, using Properties 5 and 6 as securities.
1.1995	The report by Vigers expressly stated that a three-storey building was erected on Properties 5 and 6, with an estimated value of $8,000,000.
1.1995	The loan application was approved. (Loan C)
2.1996	To replace Loan C, Fung and his wife applied to AIG Finance for a line of credit up to $5,000,000, using Properties 3, 5 and 6 as securities.
2.2.1996	The report by Vigers stated that a three-storey building was erected on each of Properties 3, 5 and 6, and it also made mention of occupation permits. The value of Property 3 was estimated at $3,800,000, and the estimated value of each of Properties 5 and 6 was estimated at $8,000,000.
5.2.1996	The loan application was approved and the loan was released. (Loan D)
15.11.1996	Loan D was restructured as an installment loan of $3,000,000 and a line of credit of $1,000,000.
18.9.1997	Fung and his wife applied to AIG for a loan of $1,900,000, using Properties 5 and 6 as securities (in the form of second mortgages).The report by Vigers also stated that a three-storey building was erected on each of Properties 5 and 6.
Mid 1997	The loan application was approved. (Loan E)
14.1.1998	Fung arranged for one To Chi Hung (陶志雄) to apply to AIG Finance for a loan of $2,450,000, with Ngan Yip (銀業) pledging Property 3 as security.
	The Vigers’ report stated that a three-storey building was erected on Property 3.
1.1998	The loan application was approved. (Loan F)

   Properties 1 and 2

7.1999	Fung Sau King (馮秀琼) (Fung’s younger sister), as the attorney of one Cheng Kwai Fai (鄭貴輝), the registered owner of Properties 1 and 2, applied to AIG Finance for a loan of $3,000,000, using Properties 1 and 2 as securities.
	The report by Vigers showed that a three-storey building was erected on each of Properties 1 and 2.
	The loan application was approved. (Loan G)

   Property 8

1997	Fung sold Property 8 to Ngo Tai Hong (敖泰康), Cheung Chi Wah (張志華) and Tang Hing Kwong (鄧慶光). These purchasers applied for a mortgage through the Applicant.

14. On Fung’s evidence, he would be granted a larger loan amount where a building was erected on the mortgaged land. Fung sought assistance from a Lands Department Inspector and obtained from him some construction or occupation permits falsely alleged to have been issued by the Lands Department. The permits falsely claimed that some buildings were erected on the vacant lands mortgaged by Fung. The Applicant also demanded Fung to supply false income proof or false company accounts in respect of the loan applicants.

15. Due to financial difficulties, Fung ceased to make any repayment to AIG Finance after he made repayment on 24 May 2000. He went to the Mainland on the same day. Later, the Applicant called Fung, informing him that a police officer had gone to the Mongkok Branch to check his documents and asking him not to return to Hong Kong. In late 2000, Fung was arrested at the border when he was returning to Hong Kong from the Mainland. He was granted bail and subsequently five charges were laid against him. The Applicant was involved in three of those charges, two being conspiracy to offer an advantage to an agent and the other being conspiracy to defraud.

16. Fung pleaded guilty before the District Court on 3 December 2002 and was sentenced to 45 months’ imprisonment on 14 January 2004. By the time he gave evidence in the present case, he had served his term and been released from prison.

17. Apart from the present case, in December 2003 Fung gave evidence as a prosecution witness in a case against the Lands Department Inspector. On 9 December 1993, Fung pleaded guilty to obtaining a driving licence by using false information and was fined HK$3,000.

Evidence of AIG Finance

18. According to one Mr. Leung Tak Cheung (梁得彰) (PW1), the officer-in-charge of the “Mortgage and Loan Release Policy Department” of AIG Finance, a branch manager of the bank could freely select which solicitor or surveyor to engage when handling a loan application. The policy of the bank was that, upon a surveyor being selected, the branch manager would give instructions to the surveyor. The surveyor would first give a verbal valuation of the mortgaged land and would then prepare a written valuation report. Before making recommendations to the bank on the loan application, the branch manager had to obtain the verbal valuation. A formal valuation report would be prepared only after the loan application met with preliminary approval. Whether final approval of the loan application was to be granted or not would depend on the assessment in the formal valuation report.

Evidence of Vigers

19. On the evidence of the staff members of Vigers, only the Applicant had instructed the surveyors at Vigers to compile valuation reports. They testified that they would only make verbal valuations and formal valuation reports upon requests by AIG Finance. They would not disclose to the loan applicants the valuations of the properties, nor had they disclosed to Fung the valuations of his properties. They said that as the Applicant had not given them instructions for valuation in good time and the procedures of ascertaining the locations of the village houses were rather complicated, they were unable to obtain the maps for the relevant lots from the Lands Department to ascertain the exact locations of the houses. They could only rely on the Applicant and Fung, or someone appointed by them, to take the valuers to the lots in question for inspections. They made valuations of the lots, on which buildings were found, on the basis of the site inspections.

No evidence from the Applicant

20. The Applicant elected not to give evidence in his defence. Nor did he call any witness.

Findings by Judge Yim

21. Judge Yim accepted Fung’s evidence and found that the Applicant knew that the information stated in the land documents was false. The Judge also held that the Applicant intentionally arranged for valuers at Vigers to be taken to other sites for inspections.

Grounds of defence

22. The Applicant advanced the following grounds of defence:

(1)  Fung fabricated his evidence in order to frame up the Applicant;

(2)  The Applicant never received any advantage from Fung;

(3)  The Applicant did not know that the information contained in the loan application documents supplied by Fung was false, nor did he have doubts about the truth and accuracy of the information;

(4)  The Applicant relied on the false information supplied by Fung in respect of the properties to obtain the verbal reports;

(5)  Fung arranged for the valuers at Vigers to carry out inspections at sites that matched the false information, as a result of which they provided valuation reports that were at variance with the facts;

(6)  Since 1996, because of his good relationship with Fung, the Applicant had become less vigilant and had been negligent in processing the documents submitted by Fung.

Dealing with the evidence of an accomplice

23. Fung was an accomplice of the Applicant in respect of the present offences. The court has to be particularly cautious in dealing with the evidence of an accomplice who has turned his back to testify for the prosecution against a defendant. The reasons for this are obvious. The accomplice, who has participated in criminal activities, will hardly be a good and veracious witness. He may also have all sorts of personal reasons to incriminate the defendant. One reason is to obtain a benefit, such as a more lenient sentence for lessened culpability or a reduction in sentence if he had assisted the prosecution in securing the defendant’s conviction. He may also have grudges against the defendant and, as an act of revenge, turns his back and give evidence as a prosecution witness against the defendant.

Legal principles

24. Under the old law of Hong Kong, in convicting a defendant on the evidence of an accomplice, the court must warn itself that, in the absence of corroboration, it was dangerous to convict a defendant solely on the evidence of an accomplice. Having so warned itself, the court could convict the defendant on the evidence of an accomplice even though it was uncorroborated. As the rules relating to the warning were highly mechanical and technical, the legal requirement that the court had to give itself a warning has been abrogated by section 60 of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong). It is intended that, with the abolition of the rigid requirement, the court or the jury can focus on the assessment of all the supporting evidence and circumstantial evidence before giving due weight to the evidence of the accomplice. See R v Chu Ip Pui [1997] HKLRD 549.

25. However, the abolition of the requirement that the court had to warn itself against the evidence of an accomplice, as well as the fact that the court can, as always, convict a defendant on the uncorroborated evidence of an accomplice, does not mean that the court is not bound to deal with the evidence of an accomplice seriously. In R v Makanjuola [1995] 1 WLR 1348, the English Court of Appeal pointed out (at 1351D) that a judge may give proper directions to the jury on the credibility of an accomplice in light of the facts of a particular case. Where there are extremities in the case, e.g. the evidence shows that the accomplice has lied in his testimony, or has made false allegations in the past, or has a hatred of the defendant, it is necessary for the judge to give the jury a clear warning that a safe and proper approach is to convict the defendant on the evidence of the accomplice where, and only where, there is other evidence in the case that supports the accomplice’s evidence.

Judge Yim’s views

26.  The first two grounds of appeal put forward by the Applicant are directed at the way in which Judge Yim dealt with Fung’s evidence. Mr. Lawrence Lok, SC, leading Mr. Edwin Choy, Counsel for the Applicant, submits that Judge Yim had not properly dealt with Fung’s evidence.

27. It is obvious that Judge Yim clearly appreciated that Fung, as an accomplice, might have incriminated the Applicant by reason of self-interest. The following extracts from her judgment show that she repeatedly warned herself that she must cautiously approach Fung’s evidence:

 ‘8. … It is to be noted that the prosecution is relying mainly on the evidence of the alleged accomplice Fung Bing Yan. Although Fung has pleaded guilty and served his custodial sentence, the present case involves other persons connected with Fung. When he first provided his witness statement, he was not yet sentenced. Furthermore, he joined the witness protection programme and was receiving government subsidies under ICAC’s arrangement. I remind myself to be cautious when dealing with his evidence.

25. … Fung gave evidence that on 3 December 2002 he pleaded guilty before the District Court to five charges, three of which involved the defendant, two being ‘conspiracy to offer an advantage to an agent’, and one being ‘conspiracy to defraud’ (see Exhibit P231). He testified at the trial of a Lands Department Inspector Lee Yui Yuen (李銳元) in December 2003. He was sentenced to 45 months’ imprisonment on 14 January 2004. He has now served the sentence and been released from prison. Besides, on 9 December 1993 he was convicted upon his own plea of obtain a driving licence by using false information and was fined $3,000. In view of the fact that the witness had over a long period of time been acting fraudulently for his own gain, I remind myself that I must assess his evidence with caution.

29. … Under cross-examination, Fung agreed that he had received ICAC’s subsidies over the past year. Upon re-examination, [he] added that, since December 2002 when he joined the programme, he has received a total of more than $220,000 as government subsidies and rental subsidies, including monthly living expenses of $2,860 for him and his wife since his release from prison (i.e. approximately $57,000) and medical expenses of approximately $16,000. The defence submits that the witness had reasons for fabricating or exaggerating his evidence. It is to be noted that the subsidies provided by the ICAC to the witness, although of a limited amount, serve to provide him and his wife with some protection over their living. In light of this, I remind myself that I must assess his evidence with caution.’

First ground of appeal

28. The Applicant’s first ground of appeal is that Judge Yim had not properly considered the factors that undermined Fung’s integrity. The first factor relied on by the Applicant was whether Fung had led the investigators at Vigers to the sites in question for inspections.

(1) Fung denied having led the staff members of Vigers to the sites in question for inspections. He said he had accompanied those staff members to check and see the village houses but denied having led them to inspect the properties in question. Judge Yim accepted Fung’s evidence. The Applicant submits that on the evidence Judge Yim had overlooked the possibility that Fung might have fabricated the evidence in this regard, and that she had also overlooked the adverse effect of such evidence on Fung’s integrity. A staff member of Vigers (PW5 Ho Kai Kwong (何繼光)) confirmed that the “Flat Viewing Agreement” (i.e. the “Written Instructions”) in relation to Property 6 contained the words “persons to be contacted for inspection, Mr. Fung”.

(2) Upon review of the valuation reports, staff members of Vigers found out that one Mr. Fung had led the valuers to inspect the properties;

(3) Most of Vigers’ Written Instructions indicated that one Mr. Fung was responsible for leading the valuers to inspect the properties in question.

29. In our view, while the contents of the Written Instructions could of course be regarded as relevant evidence, Judge Yim had also taken into account the oral evidence of the staff members of Vigers that they were not sure whether they were led by Fung to inspect the properties in question. In our view, it was for the trial judge to assess how much weight was to be attached to the evidence. Therefore, even if the Written Instructions mentioned that it was Fung who led the staff members of Vigers to inspect the properties in question, this does not mean that Judge Yim erred in accepting Fung’s evidence in this regard. Furthermore, even on Ho Kai Kwong’s evidence, he could not be sure that the Mr. Fung referred to in the Written Instructions was this Mr. Fung whom we are dealing with. As pointed out by Mr. Alex Lee for the Respondent, given that Fung had admitted that no building was erected on the properties in question, that the Lands Department approval documents submitted by him contained false information and that he had defrauded AIG Finance, there was simply no need for him to fabricate evidence in this regard.

30. Furthermore, the Applicant submits that although Fung denied having attempted to bribe the staff members of Vigers, it would appear from the following that Judge Yim might have overlooked the fabricated evidence given by Fung in this regard:

1)  Fung admitted that he had given red packets containing cash of HK$2,000 to $3,000 to the staff members of Vigers during the Chinese New Year;

2)  PW5 confirmed that, in the course of following up the sites in question, he received reports that Fung had attempted to give other colleagues red packets containing cash of approximately HK$10,000;

3)  A staff member of Vigers named Chong Chi Yan (莊志仁) testified that during the Chinese New Year in 1996, he visited Fung’s company. During the visit, Fung took out a wad of $1,000 banknotes and put them into a red packet. He then handed the red packet to Chong and said that it was lucky money for him and another staff member of Vigers. Chong estimated the total value of the wad of banknotes at HK$10,000. He immediately refused to take the red packet and, upon returning to his company, reported the “lucky money incident” for record purposes.

31. In our judgment, Judge Yim dealt with the relevant issues sufficiently. She stated in paragraph 38 of her judgment that:

‘Leung Kim Wah (梁劍華) said that he reported the ‘lucky money incident’ to Ho Kai Kwong a few days after he learnt about it (i.e. in the beginning of 1996). However, on Ho Kai Kwong’s evidence, it was only when he was investigating some problems that he had found with the valuation of Fung Bing Yan’s property that he came to know that Fung Bing Yan had given lucky money to the subordinates. This is consistent with Chong Chi Yan’s testimony that in 2001, when Vigers inquired of him about the valuation of Fung Bing Yan’s property, he took the initiative to report the ‘lucky money incident’ to Ho Kai Kwong. After consideration, I have reservations about Leung Kim Wah’s testimony that he reported the incident to Ho Kai Kwong within days after he knew of it. After consideration, I accept the evidence of Ho Kai Kwong. In my view, the fact that Chong Chi Yan had been working for the company for only 9 months or so reflects that the staff members of Vigers were generally aware of Fung Bing Yan’s habit of giving lucky money during the New Year. They did not report the matter to their superior, thinking that it was not necessary to do so. After consideration, I accept Fung Bing Yan’s evidence that had not given tea money to the staff members of Vigers in order to have them prepare false valuation reports.’

32. Another issue relates to the procedures by which Fung handed to his employer, i.e. the solicitors’ firm, the Lands Department approval documents containing the false information for the purpose of preparing “certified copies”. The Applicant contends that Fung knew that he had been working in that firm for years and that his colleagues placed great trust on him, and so he took advantage of the circumstances to defraud the firm and carry through his plan.

33. In fact, Fung admitted that he had supplied the originals of the approval documents containing the false information to the solicitors’ firm for the purpose of preparing certified copies. His intention was to prepare false instruments. Judge Yim dealt with this issue in paragraph 31 of her judgment. We do not think that she had overlooked this issue.

34. Another argument advanced by the Applicant relates to the size of the mortgage loans granted by the bank in respect of Property 8. Fung said that AIG Finance granted a 90% mortgage loan for Property 8, and not the usual 70% loan. Therefore, in respect of the three units of the Property, the red packets given by Fung to the Applicant as tea money each contained HK$20,000 and not just a few thousand or ten thousand dollars. However, according to the Admitted Facts, all three buyers of Property 8 said that the mortgage loans granted to them by AIG Finance were equal to 70%, and not 90%, of the purchase price of the Property. This shows that what Fung said was not the truth and that Judge Yim overlooked the evidence in this regard when determining the case.

35. We think that there were indeed discrepancies in the evidence concerning the sizes of the mortgage loans granted by the bank. Judge Yim stated in paragraph 73 of her judgment that she appreciated the discrepancies in this aspect. She said:

‘The witness said he had to give commission to the defendant because AIG Finance could provide a 90% mortgage loan, and the percentage granted at the end of the day was not something  he could control. The evidence shows that the witness had cash-flow problems in 1997 and to him it was very important to ensure that the buyer could obtain the loan smoothly because otherwise the transaction would fall through and he would then risk losing his cash income. It is understandable that the witness agreed to and did offer tea money to the defendant, who could ensure the approval of the loans.’

36. In our view, there were sufficient reasons to support the Judge’s finding that Fung was a veracious witness.

Second ground of appeal

Evidence in support of the accomplice’s allegations

37. The thrust of the Applicant’s second ground of appeal is that Judge Yim had not sought independent evidence to corroborate Fung’s evidence before she accepted Fung’s account. The Applicant submits that although the prosecution alleged that he had received advantages up to tens of millions of dollars from Fung over the years, no banking transaction documents had ever been produced to prove the alleged unusual transactions in the Applicant’s bank account. The Applicant also contends that although Fung said he had given him a cash cheque, the prosecution had never tendered any bank record in relation to the cheque. The Applicant further submits that although Fung claimed that whenever a mortgage loan in respect of the site in question was successfully granted, the Applicant would ask Fung to pay him 10% of the mortgage loan as a reward, the prosecution had never produced any banking transaction record between the relevant bank accounts.

38. In the present case, it is true that the prosecution had not adduced evidence in relation to the bank accounts. This, however, would not debar Judge Yim from accepting the evidence that Fung had given bribes to the Applicant and that Fung had supplied false documents to the Applicant for the purpose of obtaining the loans. The two parties had been conspiring for as long as 10 years or so, and it was not impossible for the Applicant to have dealt with the bribes in cash without leaving any trace of having done so. Furthermore, as stated in paragraphs 40 and 41 hereinbelow, Judge Yim was entitled to rely on the facts of the case as a whole to hold that the Applicant had knowledge of the false information and, accordingly, that the Applicant did take part in the scheme with a view to obtaining an unlawful advantage. This being the case, Judge Yim was correct in finding that Fung had indeed bribed the Applicant. In other words, there was sufficient evidence in the case to support Fung’s allegations against the Applicant.

Whether the Applicant knew that the documents were false

39. The defence of the Applicant was that he did not know that the information in the documents in question was false. The Applicant said that according to the testimony of Leung Tak Cheung (PW1), when AIG Finance was processing Fung’s application for a mortgage loan, they did not notice anything wrong with the information in the documents. The bank had in place an internal mechanism for approving loans and reviewing documents, and the bank never noticed any irregularity in the application and approval processes. This, the Applicant submits, proved that the Applicant, just like AIG Finance, did not notice any problem with the documents submitted by Fung in support of the loan applications.

40. In our judgment, it did not follow from the bank’s failure to notice any problem with the information in the documents that the Applicant was also unable to notice anything wrong with such information. This was because, in processing the applications for mortgage loans, the bank was relying on and acting upon the recommendation reports prepared by the Applicant and the documents verified by him. On the evidence, the Applicant was responsible for first-stage assessment of the applications. In fact, Judge Yim also considered whether under the mechanism the bank would have noticed anything wrong with the information in the documents. She said:

‘Leung Tak Cheung said that, back in the time of SPC Credit, if an application was at variance with the company’s requirements for granting loans, e.g. the interest rate being applied for was lower than that set by the company, or the loan amount being applied for exceeded a specified upper limit (see Exhibit P48), then the applicant had to apply for a waiver. The branch manager was the most senior person in charge of a branch, and he reported to the district manager. For each application, there would be an officer recommending it, one endorsing it and one approving it. Each approving officer had his own authority. As there was this system of division of labour, the papers and information submitted by a client should already have been checked by the time of submission of a recommendation. The approving officer would rely on the contents of the loan proposal to make a decision, signing and approving the loan only when he considered it appropriate to do so. The company had a mechanism for randomly reviewing the applications after they had been approved. The witness thought that those who were familiar with the operation would know the concerns of the approving officers. The witness said that at the material time mortgage loans relating to village houses took up approximately 5% of the total mortgage loans. He added that in view of the changes in the senior staff of the company, those who were familiar with the operation would know the probability of an application being selected for review and of the areas on which the review would focus.’

We do not think that the Applicant’s argument is cogent enough to render Judge Yim’s verdict less safe or less satisfactory.

Evidence in support of the convictions

41. The most important issue in the present case is whether there was sufficient evidence to prove that the Applicant had taken part in the conspiracy to defraud. We think that Judge Yim had thoroughly considered the relevant evidence and concluded that such evidence was sufficient to support Fung's allegation that the Applicant had taken part in the conspiracy. The matters considered by the Judge included:

(1) In 1990 and 1992, the Applicant was well aware that Fung was residing in Pik Shui House but reported Property 4 as his residence;

(2) In October 1990, the value of Property 4 was estimated by Vigers at $2,900,000, but in February of that year Property 4 was sold at a price of merely $230,000. The Applicant never expressed any suspicion about it;

(3) In January 1995, when the Applicant was processing the mortgage loan applications in relation to Properties 5 and 6, he accepted the balance sheet of Ngan Tak Li even though it had not been verified by an auditor. Furthermore, the Applicant never filled in the date of the “Deed of Equitable Mortgage”;

(4)    In February 1996, the Applicant allowed a loan to be released to Fung prior to execution of the mortgage loan documents in respect of Properties 5 and 6 and when the interest of the bank was not adequately safeguarded;

(5) The Applicant never questioned why Fung left Properties 5 and 6 vacant all along and repeatedly mortgaged them instead of selling them;

(6) In early 1998, Fung applied to the bank for a loan under the name of To Chi Hung. The transaction records of To's bank account were inconsistent with his income proof, but the Applicant never raised any query.

Third ground of appeal

42. The Applicant submits that the evidence in the case was insufficient to support the charge of conspiracy to defraud against the Applicant. We have dealt with the relevant evidence hereinabove and do not accept this ground of appeal.

Conclusion

43. We conclude that Judge Yim's decision was correct and, accordingly, dismiss the application for leave to appeal against the Applicant’s convictions.

[1]    On 2 August 1996, the common law offence of conspiracy became a statutory offence and was incorporated in sections 159(A) and 159(C) of the Crimes Ordinance.