HKSAR v. LIM TIN TIN VALERIE

CACC412/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 412 OF 2010

(ON APPEAL FROM DCCC 373 OF 2010)

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REASONS FOR JUDGMENT

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Hon Lunn J (giving the judgment of the Court) :

1.  The applicant, a barrister, sought leave to appeal against her conviction in the District Court by Judge Anthea Pang of two charges of attempted theft for which she was sentenced to a total of 12 months’ imprisonment. The applicant and her co-accused at trial, Ho Ying Pan, were acquitted of two charges of theft. At the hearing on 3 August 2011 we dismissed the application and said that we would give our reasons in due course. This we do now.

THE CHARGES

2.  The charges arose out of the representation of Mr Tochukwu and Mr Ryan in the District Court, where they were charged with fraud. The theft charges (Charges 1 and 2) related to two payments, each of US$2,500 made by Ms Vickie Smith, the wife of Mr Tochukwu, in cash to the applicant for their representation by her at the prospective trial.

3.  The two charges of attempted theft (Charges 3 and 4) of US$2,000 in each case related to the attempt by the applicant to obtain those monies on her representations made to Ms Vickie Smith, Mr Tochukwu and Mr Ryan that at the hearing, at which mitigation was to be made on behalf of Mr Tochukwu and Mr Ryan, they would be represented by a Queen’s Counsel, whereas in fact they were represented by Mr Niall Stirling, a junior counsel, who by arrangement with the applicant appeared on a complimentary basis and received no fee.

THE PROSECUTION CASE

4.  The prosecution called Ms Vickie Smith, Mr Tochukwu and Mr Ryan as witnesses.  Ms Vickie Smith met the applicant’s co-accused at trial, Ho Ying Pan, in a waiting room at Lai Chi Kok Reception Centre.  She was told that he was a legal executive specialising in fraud.  She and her husband were looking for a lawyer to represent him at trial.  Ho Ying Pan introduced her to the applicant.  It was agreed ultimately that the applicant would represent both Mr Tochukwu and Mr Ryan for a payment of US$2,500 each.  Mr Ryan was to plead guilty and seek to exonerate Mr Tochukwu of all blame.  The prosecution was to be approached to accept pleas of guilty from Mr Ryan, but to offer no evidence against Mr Tochukwu.  However, when that strategy failed it was agreed with the prosecution that Mr Tochukwu and Mr Ryan would each plead guilty to one charge and that the other charge would remain on the court file not to be proceeded with, without the leave of the court.  It was at that stage, in an e-mail to Ms Vickie Smith, who had returned to the United States of America, that the applicant suggested :

“… if you really want to knock down the sentence term as much as possible, is to employ a queen’s counsel to do the mitigation alongside me.”

5.  In a subsequent e-mail in response to an enquiry by Ms Vickie Smith as to the cost of briefing a Queen’s Counsel, the applicant responded : “somewhere in the region of US$4,000”.  Ms Vickie Smith replied that she was not prepared to fund the representation of Mr Ryan, but indicated that she might be able to raise funds for that representation for her husband and suggested that Mr Ryan be invited to release money held in his prisoner’s property.

6.  On her return to Hong Kong on 6 September 2007, the date on which Mr Tochukwu and Mr Ryan were to appear in court, Ms Vickie Smith met the applicant at a Starbucks outlet in the court precincts.  The applicant told her that she had paid US$4,000 from her own money to hire a Queen’s Counsel.  On learning that, Ms Vickie Smith said that after the hearing she would pay the applicant US$2,000 on behalf of her husband.  The applicant said that she would obtain the balance of the monies from Mr Ryan’s prisoners property.

7.  Mr Tochukwu and Mr Ryan met the applicant and Ho Ying Pan in the cells of the District Court during the lunch hour.  The applicant told them that she had engaged a Queen’s Counsel to represent them for US$4,000.  She asked Mr Ryan to sign an authorisation to obtain the US$1,900 in his prisoners property.  He refused.

8.  In the courtroom, whilst they were in the dock, the applicant told them Mr Stirling was the Queen’s Counsel who would represent them at that hearing.

THE DEFENCE CASE

9.  The applicant did not give evidence at trial.  However, Ho Ying Pan did give evidence.  He agreed that he had been present at the meeting in the applicant’s chambers on 25 July 2007 attended by Ms Vickie Smith. No money was handed over by the latter.  However, on 28 July 2007 at a similar meeting between the parties and Ms Vickie Smith, he saw the latter hand over a pile of banknotes in Hong Kong currency to Ms Mabel Yung, Mr Eddie Lee’s secretary.

10.  Mr Ho Ying Pan went on to testify that he had accompanied the applicant to visit Mr Tochukwu and Mr Ryan in the cells of the District Court during the lunch hour on 6 September 2007.  He testified that the applicant made no mention of having obtained the services of a Queen’s Counsel to represent them nor did she ask Mr Ryan to sign an authorisation in respect of the US$1,900 in his prisoner’s property.

11.  It was suggested on behalf of the applicant that Ms Vickie Smith had misunderstood the description of counsel being “more senior” with Senior Counsel. It was suggested that Mr Tochukwu and Mr Ryan were not credible witnesses.  They were fraudsters.

REASONS FOR VERDICT

12.  The judge determined Ms Vickie Smith to be a “credible and reliable witness”.  She rejected the evidence of Ho Ying Pan and accepted the evidence of Ms Vickie Smith that she had passed a total of US$5,000 to the applicant in two tranches of US$2,500 each and that she had signed a retainer letter (P11) to that effect, inserting by hand the figure 5,000 as a statement of that payment and adding the date 28 July 2007.  However, the judge rejected the prosecution case that the monies had been “received on account of another”, namely Eddie Lee & Co.

Charges 1 and 2 : theft

13.  The judge found that the first payment was made by Ms Vickie Smith on the basis that she was instructing the applicant and Ho Ying Pan to represent her husband.  Eddie Lee & Co. did not come onto the scene in any shape or form until subsequently.  Ms Vickie Smith made the second payment to the applicant on the same basis, not that it was to be received by the applicant on account of Eddie Lee & Co.  In the result, she acquitted the applicant and Ho Ying Pan of those charges.

Charges 3 and 4 : attempted theft

14.  Of Ms Vickie Smith’s evidence in respect of the engagement of a Queen’s Counsel/Senior Counsel she noted that it was(para. 91) “well supported by the e-mails”.  That was a reference to a series of e-mails passing between the applicant and Ms Vickie Smith. In particular, she noted that the term “queen’s counsel” was first used in an e-mail by the applicant.  Similarly, the applicant quoted the prospective fees of $4,000 in United States dollars.  In the result, she said (para. 92) :

“I am sure that Smith had not confused the term ‘Queens Counsel’ with a ‘more senior counsel’.”

15.  Of Ms Vickie Smith’s evidence of her dealings with the applicant on 6 September 2007, she said (para. 139) :

“I am sure that Stirling attended the hearing without D2 (the applicant) or anybody paying him any fees. D2 however falsely represented to Smith that Stirling was the Queen’s Counsel she had hired and that she had paid US$4,000. The dishonesty in getting Smith paying to her US$2,000 is clear beyond doubt.”

16.  The judge determined that Mr Tochukwu and Mr Ryan were “economical with the truth” (italics added ) in their testimony in respect of the events that led to the fraud charges being laid against them.  As a result, she stated that she did (para. 98) :

“…warn myself of the danger in accepting part of a witness’s evidence when there are doubts as to his other evidence. I have also exercised great care in assessing the part of their evidence on which I rely.”

17.  In the result, the judge found (para. 98) :

“I find that when relating matters on what happened on the occasions when they met with D1, D2 and EL, (Ho Ying Pan, the applicant and Mr Eddie Lee respectively) they were forthcoming and were telling the court what actually happened. Even if they might not have been entirely pleased with the work of D1 and D2, I am sure that they did not fabricate the evidence and what they told the court is true. I also note that the bulk of their evidence is corroborated by Smith’s evidence and part of it supported by documents like exhibits P 22 and D 6.”

P22 was a hand written letter addressed to the court in which Mr Ryan accepted his culpability and exonerated Mr Tochukwu.  D6 was a letter from the applicant to the prosecution offering a ‘plea-bargain’ in which Mr Ryan was to plead guilty to both charges and the prosecution to offer no evidence against Mr Tochukwu.

18.  Having noted that in an e-mail dated 5 September 2007 the applicant had told Ms Vickie Smith, “I will ask Ryan to release his 2000 to us so that we can hire a senior counsel for him and T” the judge determined of the applicant’s visit to Mr Tochukwu and Mr Ryan in the cells of the District Court during the lunch hour on 6 September 2007 that (para. 142) :

“I am sure that the main purpose, if not the only purpose, of this cell visit by D2 was to get Ryan to authorise her to have the money.”

Conclusion

19.  In the result, the judge determined that the applicant was guilty of Charge 3 as laid and Charge 4 in respect of US$1,900, rather than the $2,000 as stipulated in the Particulars of Offence.

GROUNDS OF APPEAL AGAINST CONVICTION

Ground 1

20.  By Ground 1 of the grounds of appeal against conviction it is contended that the judge erred in law in failing to consider and evaluate the evidence in a safe or proper manner :

(i)    in respect of the evidence of Ms Vickie Smith and her husband of their dealings with Mr Stirling on 6 September 2007 in the lift lobby and at the dockside in the District Court respectively;

(ii)   6 September 2007—Starbucks : the inherent improbability, in all circumstances, of the applicant telling Ms Vickie Smith that she would get the balance of US$2,000 from Mr Ryan;

(iii)   6 September 2007—the cells of the District Court : the discrepancies between the accounts of Mr Tochukwu and Mr Ryan in respect of what the applicant said to them;

(iv)   the role of Mr Eddie Lee : discrepancies in the evidence of Ms Vickie Smith and her husband;

(v)   the issue of whether or not the applicant uttered the threat “no money, no court”;

(vi)   the issue of motives for revenge against the applicant in Ms Vickie Smith, her husband and Mr Ryan;

(vii)   the criminality of Mr Tochukwu and Mr Ryan; and

(viii)   the reasons for the rejection of the evidence of Mr Eddie Lee, where it contradicted the evidence of Mr Tochukwu and Mr Ryan.

Ground 2

21.  By Ground 2 it is submitted that the judge erred in law in wrongly restricting the ambit of the cross-examination of Mr Ryan by counsel for Ho Ying Pan in respect of his conduct that was the subject of the charges brought against him in the District Court to the issue of what he had admitted on previous occasions (transcript 248I-J and 249B-D).  It is submitted that in consequence counsel for Ho Ying Pan and the applicant were prevented from :

(i)   exploring the bad character of Mr Tochukwu and Mr Ryan; and

(ii)   an issue in the case, namely that they had always intended to plead guilty and that their subsequent criticism of counsel was malicious.

Ground 3

22.  By Ground 3 it was submitted that the judge had erred in law and wrongly failed to consider or warn herself in a proper manner or at all of the dangers of acting on the evidence of Ms Vickie Smith, her husband and Mr Ryan, by reason of :

(i)   their motives for revenge;

(ii)   the fact that Mr Tochukwu and Mr Ryan had been convicted on their own pleas of a serious case of dishonesty and were not prepared to disclose their criminality in cross-examination;

(iii)   the concerns of collusion between them in respect of their evidence that the applicant had threatened them, “no money, no court”, which allegation was not to be found in any of their out-of-court statements; and

(iv)   the fact that the judge did not warn herself of the dangers of accepting the evidence of Ms Vickie Smith.

A CONSIDERATION OF THE SUBMISSIONS

Ground 1

(1)     As to (i)—the evidence of Ms Vickie Smith and her husband of their dealings with Mr Stirling on 6 September 2007 in the lift lobby and at the dockside in the District Court respectively

23.  It was submitted that the judge had failed to consider and evaluate the discrepancies in the evidence of Ms Vickie Smith and Mr Niall Stirling of their initial meeting at the lift lobby in the District Court on 6 September 2007.  Ms Vickie Smith said, and remained adamant, that the applicant had described Mr Stirling as being the “Queen’s Counsellor” she had employed.  Also, she said that Mr Stirling said that he was going down in the lift to see her husband and Mr Ryan in the cells.  By contrast, Mr Stirling made no mention of having met Ms Vickie Smith prior to meeting her for the first time at the doors of Court 27 shortly before proceedings began.  He did not recall saying, prior to proceedings beginning, that he would visit Mr Tochukwu and Mr Ryan in the cells or indeed having done so.  It was an admitted fact that Mr Stirling had not made any visit to those prisoners in the cells at court that day.

24.  Similarly, it was contended that the judge had failed to have regard to the discrepancies between the evidence of Mr Tochukwu and Mr Ryan, on the one hand, and Mr Stirling on the other hand of their first meeting whilst they were in the dock and Mr Stirling at the side of the dock.  Mr Tochukwu said that the applicant had said of Mr Stirling that he was the Senior Counsel who would mitigate on their behalf.  By contrast, Mr Stirling said that he thought that the applicant had said of him that he was “experienced” and ‘more senior”.

Discussion

(i)      The lift lobby

25.  It is clear that the judge was mindful of the discrepancies in the evidence of Ms Vickie Smith and Mr Stirling as to what had passed between them in the lift lobby of the District Court, namely : did the applicant introduce Mr Stirling to Ms Vickie Smith as the Queen’s Counsel that she had employed to represent her husband?  In her description of Ms Vickie Smith’s evidence the judge noted of the issue (para. 40) :

“D2 introduced Stirling to Smith and told Smith that Stirling was the Queen’s Counsel/Senior Counsel she had employed. Smith was not sure if Stirling heard that description.”

26.  In her ‘Assessment’ of the evidence, the judge found (para. 94) :

“The fact that Stirling did not hear D2 referring to him as ‘Queens Counsel’ or ‘Senior Counsel’ when the three of them, that is, Smith, Stirling and D2 met at the District Court lift lobby, has not caused me to doubt the veracity of Smith’s evidence. Smith said it was noisy at the time and everyone was talking. Smith also told the court that D2 was not yelling at the time. She was in her usual voice. I find that in such an environment where people bumped into others accidentally and when they were making their own ways to their own destinations, Stirling might not have paid attention to what D2 said to Smith. I do not find that Stirling’s evidence contradicts that of Smith.”

27.  That was an accurate summary of the evidence of Ms Vickie Smith on the issue of her description of events involving the applicant and Mr Stirling in the lift lobby.  However, Ms Vickie Smith also went on to say that Mr Stirling told the applicant :

“Well, I am on my way down to see Tochukwu Nawaneri and Jo--he said the whole name of Ryan--in the jail in the basement.”

28.  In cross-examination on behalf of Mr Ho Ying Pan, Ms Vickie Smith was asked whether it was possible that Mr Stirling had been described by the applicant as “a counsel.  He is very senior”.  Ms Vickie Smith retorted, “No, absolutely not.  She said, ‘This is the Queen’s Counsel I employed.’”  She went on to say that she could not say and did not know whether Mr Stirling had heard what was said (transcript 120). In cross-examination on behalf of the applicant, in face of a similar suggestion as to what was said, Ms Vickie Smith remained adamant in that evidence.  More pertinently, neither put to Ms Smith that she was at any stage informed that Mr Stirling was appearing on a complimentary basis, a matter one would have expected to have been raised given everyone’s concern about legal fees for the defendant’s representative that day.

29.  It is to be noted that no issue was taken in cross-examination on behalf of the applicant of the statement attributed by Ms Vickie Smith to Mr Stirling directed at the applicant that he was going down to the cells to visit Mr Tochukwu and Mr Ryan.  Nevertheless, in cross-examination of Mr Stirling on behalf of the applicant the issue was canvassed. Mr Stirling replied (transcript 341A), “I don’t recollect going to the cells or saying I would.”  It was the effect of his evidence that he first met the applicant in the court room before the hearing and that he had met Ms Vickie Smith first outside the doors of the court room in which the hearing in respect of Mr Tochukwu and Mr Ryan was conducted.

30.  Clearly, in the light of all the evidence the judge was entitled to determine that the evidence did not cause her to doubt the veracity of Ms Vickie Smith’s evidence.

(ii)     The side of the dock

31.  The judge noted that prior to the court proceedings commencing on 6 September 2007 the applicant had (para. 42) :

“… introduced Stirling to Tochukwu and Ryan outside the dock. Tochukwu said D2 told them Stirling was the Senior Counsel who would mitigate on their behalf. Both said they had no chance to discuss with Stirling about the case but they were asked if they were pleading guilty. Stirling’s evidence is that, as far as he could recall, when D2 introduced him to Tochukwu and Ryan, she was using words to the effect that he was experienced and more senior.”

32.  Mr Grounds, for the applicant, is correct in noting that, although the judge identified the differences in the evidence between the various witnesses, she did not make any finding to resolve the matter.  Mr Tochukwu’s evidence was that the applicant had said (transcript 183F), “This is the senior counsel who will mitigate on your behalf.”  However, he went on to say of Mr Stirling’s position at the time the applicant said that, “he was walking in.”  In cross-examination by counsel for Ho Ying Pan, Mr Tochukwu confirmed that is what the applicant had told him.  The matter was not explored in cross-examination by counsel for the applicant.  Mr Ryan’s testimony (transcript 239) was to the effect that Mr Stirling had come to the dock and merely said “Hello”.  There then followed a brief conversation.  For his part, Mr Stirling’s evidence in respect of the applicant’s introduction of him to the lay clients was (341N), “I think she used the word ‘experienced’ and more ‘senior’, yes.”

33.  Given the state of the evidence on that narrow issue, it is not surprising that the judge did not make any specific determination.  Clearly, of much greater significance was the 25 minute conversation that the applicant had with Mr Tochukwu and Mr Ryan in the cells shortly before the dockside meeting.  Of that meeting, the judge had determined (para. 142) that the applicant had gone to the cells to tell Mr Tochukwu and Mr Ryan of the engagement of a Queen’s Counsel and to ask Mr Ryan to authorise the release of US$1,900 to her from his prisoner’s property.

(2)     As to (ii)—6 September 2007—Starbucks : the inherent improbability, in all circumstances, of the applicant telling Ms Vickie Smith that she would get the balance of US$2,000 from Mr Ryan

34.  Then, it was submitted that the judge had failed to have regard to the inherent improbability that, whilst in Starbucks in the District Court Building on 6 September 2007, Ms Vickie Smith had told the applicant, that after the hearing she would pay her US$2,000 and that the applicant had said that she would get the remaining US$2,000 from Mr Ryan.  It is to be noted that this conversation was said to have taken place in the presence of Ho Ying Pan. Ms Vickie Smith testified that when they left Starbucks she and the applicant had gone directly to the court in which the proceedings were conducted, whereas Ho Ying Pan left the building as they waited at the lift lobby.

35.  Given that it was an admitted fact that the applicant and Ho Ying Pan had visited Mr Tochukwu and Mr Ryan in the cells between 1:30 p.m.and 1:55 p.m., it was submitted that it was clear that the visit to the cells preceded the conversation in Starbucks.  It was the evidence of Mr Ryan that he had communicated his refusal to sign an authorisation to release the monies in his property to the applicant.  If that evidence was accepted, as the judge stated she did, it was inherently improbable that the applicant would have asserted an intention to obtain monies from a person who had shortly before refused to give her authorisation to access that money.

Discussion

36.  It is to be noted at the outset that, although complaint is made of the judge’s failure to consider and evaluate the alleged discrepancies in the evidence described above, this issue was not addressed at all in the lengthy written or oral submissions of the applicant’s counsel, Mr Lok SC, at trial.

37.  Of the evidence relating to the meeting between the applicant, Ho Ying Pan and Ms Vickie Smith in Starbucks on 6 September 2007, the judge found (para. 92), “D2 told Smith that she had paid the US$4,000 for the ‘Queen’s Counsel’ out of her own pocket.”

38.  Of the submission that the meeting between the applicant and Mr Tochukwu and Mr Ryan must have preceded the meeting between the applicant and Ms Vickie Smith, it is necessary to examine the relevant testimony.

39.  Ms Vickie Smith said that she had telephoned the applicant on her arrival in Hong Kong at 7 am on the morning of 6 September 2007.  They arranged to meet in Starbucks in the District Court Building at 1 o’clock that day.  She said that she had gone to Starbucks “as scheduled”.  The meeting lasted about 15 to 20 minutes. Then, they went upstairs.  She saw Ho Ying Pan leaving the building.  Ms Vickie Smith said that she occupied a seat in the public gallery of the courtroom, whereas the applicant took a seat at the third row of tables, next to Ho Ying Pan.  Then, she said, “maybe about 10 minutes later”, Mr Stirling walked into the courtroom and went to the front row of tables (transcript 110-113).

40.  If Ms Vickie Smith’s evidence is accurate that she kept the appointment to meet the applicant as scheduled at 1 o’clock on 6 September 2007, and that their meeting in Starbucks lasted from 15 to 20 minutes, then her meeting with the applicant in Starbucks occurred before the applicant’s visit to the cells, it being an admitted fact that occurred at 1:30 p.m. to 1:55 p.m.  It is to be noted that it was not suggested in cross-examination of Ms Vickie Smith on behalf of the applicant that her evidence as to the time and length of her meeting in Starbucks with the applicant was wrong.

(3)     As to (iii)—6 September 2007—the cells of the District court : the discrepancies between the accounts of Mr Tochukwu and Mr Ryan in respect of what the applicant said to them

41.  Next, it was submitted that the judge had failed to consider properly the discrepancies in the evidence of Mr Tochukwu and Mr Ryan as to what happened during their meeting with the applicant in the cells at lunchtime on 6 September 2007.

42.  Mr Tochukwu said that as he recalled the applicant came alone, but he was not sure.  Mr Ryan said that she came with a man. Mr Tochukwu said that she brought a letter for Mr Ryan to sign to authorise her to collect monies from his prisoner’s property.  Mr Ryan refused to sign the letter and the applicant left with the letter.  The applicant was upset.  He agreed that he had made no mention of this issue in his statement to the ICAC.  He was not asked about it.

43.  Mr Ryan said that he was asked to sign an authorisation for the applicant to collect US$2,000 from his prisoner’s property.  He refused to give her authority.  Given that three years have passed, he did not remember the form of the authorization.  Following his refusal the applicant said that if he didn’t give her the money she would “make the police get the money.”  He accepted that neither of those events were described in his statement to ICAC.

Discussion

44.  As noted earlier, the judge found (para. 98) that the “bulk of the evidence is corroborated by Smith’s evidence and part of it supported by documents”.  Highly relevant to the judge’s determination, in respect of events that had occurred in the cells in the District Court at lunchtime on 6 September 2007, is her finding in respect of the e-mails that passed between the applicant and Ms Vickie Smith. Of that, the judge noted of Ms Vickie Smith (para. 91) :

“... she first got the e-mail from D2 about the proposed engagement of a Queen’s Counsel, she then replied to make enquiries and afterwards, there were further e-mail exchanges.”

45.  In the context of her consideration of Charges 3 and 4, the judge made further reference to the e-mails that passed between the two of them (para. 138) :

“Smith then enquired about the charges to which D2 said it would be about US$4,000. In the e-mail dated 25 August 2007 from D2 to Smith, D2 said,

‘Try your best to sort out some extra funds as soon as possible. It won’t be too costly. Maybe somewhere in the region of US$4,000 so try your best to confirm these fees. Yes I know Ryan has US$2,000 with him. I could ask him to reimburse it to you if you agree to put the money forward first. Await your reply.’

Smith then replied to D2 that she would not pay US$4,000 and asked her to get Ryan to release the money which was kept by the police. Finally, by an e-mail dated 5 September 2007, that is, one day before the court hearing D2 said to Smith,

‘I will ask Ryan to release his 2000 so that we can hire a senior counsel for him and T.’”

46.  The reference by the applicant to her knowledge that Mr Ryan had US$2,000 with him, was a response to Ms Vickie Smith’s e-mail to her dated 18 August 2007, in which she had asked if the “queen’s person” could mitigate for her husband alone :

“... if not then you must employ [sic] John to release the $2000 and all other funds the police are holding for his defense to me once I arrive.”

47.  Clearly, the judge’s finding (para. 139) that in Starbucks in the precincts of the District Court on 6 September 2007 the applicant had told Ms Vickie Smith that she had hired a Queen’s Counsel and paid for his services out of her own pocket, together with her assertion that she would get the remaining US$2,000 from Mr Ryan, following which Ms Vickie Smith promised that after the hearing she would pay US$2,000 for his services to be rendered by the Queen’s Counsel for her husband was highly germane to consideration of the conversations that occurred in the cells between the applicant, Mr Tochukwu and Mr Ryan. 

48.  In making her assessment in respect of what it was that occurred in the cells of the District Court at lunchtime on 6 September 2007 the judge was clearly entitled to have regard to the evidence of prior events relevant to those matters.  To do so was to put the matter in proper context.

49.  The issue of importance was whether or not the applicant had asked Mr Ryan to sign an authorisation to release US$1,900 from his prisoner’s property.  In resolving the issue, the judge determined of the applicant (para. 143) :

“She had falsely represented to Ryan that a Queen’s Counsel had been instructed. She had told Ryan about the alleged fees of US$4,000. She had asked Ryan to sign to authorise her to get Ryan’s money.”

50.  In his closing speech, leading counsel for the applicant drew the judge’s attention the fact that the evidence ofMr Tochukwu and Mr Ryan, that the applicant asked Mr Ryan to authorise release of the monies in his prisoner’s property, was not described by them in their witness statements to ICAC.  Similarly, what he said was their collective evidence of her threat in face of Mr Ryan’s refusal to do so, that she would ask the police to forfeit the monies held in Mr Ryan’s prisoner’s property, was not described by them in those statements.  Noting that the threat had been made at a time when the two men “were desperate” Mr Lok suggested that it was not a matter that would have been forgotten, yet it was not in their statements to ICAC.

51.  Accordingly, albeit that she did not refer in terms to the fact that the alleged misconduct was not stipulated in those witness statements, the judge can be taken to have had the issue in mind when addressing the matter at some length in her Reasons for Verdict.  Mr Lok was in error in suggesting that both men had spoken of the threat uttered by the applicant. Mr Tochukwu gave no such evidence.

Restitution : US$1,900

52.  Of the undisputed evidence that during mitigation, following an intervention by the applicant, Mr Stirling invited the court to receive the US$1,900 as restitution from Mr Ryan, the judge said that was (para. 100) :

“… consistent with Ryan saying that D2 got upset about his refusal to let her have his money and therefore D2, at the very last moment, urged Stirling to have the money forfeited. Originally, in D2’s letter dated 16 August 2007 (exhibit P20), she specifically told Tochukwu and Ryan that there was no mentioning or requirement that the money had to be repaid to Dier.”

In that letter, the applicant informed Mr Tochukwu and Mr Ryan that the prosecution was prepared to accept pleas of guilty from them to one charge only, and added :

“What do you reckon? (By the way, there is no mentions/requirement that money has to be repaid to Dier) My advice is to accept it.” [Italics added to denote text in handwriting.]

53.  In the result, the judge determined (para. 100), “that there is a ring of truth in Ryan’s evidence”, namely that she arranged for the money to be paid by way of restitution instead of having it returned to Mr Ryan.

(4)     As to (iv)—the role of Mr Eddie Lee : discrepancies in the evidence of Ms Vickie Smith and her husband

54.  It was submitted that the judge failed to have regard to discrepancies in the evidence of Ms Vickie Smith and her husband as to the identity and role of Mr Eddie Lee.  There was no dispute that Ms Vickie Smith had signed the engagement letter dated 28 July 2007 on the letterhead of Eddie Lee & Co.  There, Mr Eddie Lee was described as the “handling solicitor of your case”.  The telephone number given as a contact number for him was different from that at which Ms Vickie Smith contacted the applicant.  Her explanation that she believed that to be the name under which the applicant worked was unbelievable. 

55.  Similarly, the evidence of Mr Tochukwu, that he did not know who Eddie Lee was, was untruthful.  He had signed an engagement letter dated 27 July 2007 (P19) addressed to Eddie Lee & Co. in which it was asserted that the applicant and Eddie Lee & Co. had been retained as the legal representatives of both Mr Tochukwu and Mr Ryan.  Also, Mr Tochukwu accepted on 17 August 2007 at Lai Chi Kok Reception Centre he had been given a letter dated 16 August 2007 on the letterhead of the applicant in which she apologised for being unable to see him that day and introduced Mr Eddie Lee as being there “on our behalf”.

Discussion

56.  In her examination of the circumstances that led Ms Vickie Smith to sign the retainer, which she dated 28 July 2007, the judge considered her evidence of the significance that she attached to the fact that it was on the letterhead of Eddie Lee & Co.  The judge noted (para. 30) :

“She asked who ELC was. To that, D2 replied ‘it’s me’. Smith said she took that to mean D2 was perhaps like a consultant working under that name. At that time,Smith thought that only D1, D2 and C &Y were involved as C&Y was what D1’s name card showed. Smith, nevertheless, did not take the matter concerning ELC further as all she wanted was a lawyer to represent her husband.”

That is an accurate summary of the evidence of Ms Vickie Smith (see transcript 99 and 144 to 147).

57.  As noted subsequently, the judge gave considerable attention to the meeting in the cells at the District Court of 31 July 2007 between Mr Tochukwu, Mr Ryan, the applicant and Mr Eddie Lee (paras 101-104).  The judge said that she accepted the evidence of Mr Tochukwu and Mr Ryan, which was to the effect that Mr Eddie Lee had not participated in any conversation with them. In particular, she rejected Mr Eddie Lee’s evidence that he had a detailed discussion with them about the fees and services to be provided and that he had shown them the retainer letter (P17), dated 28 July 2007, on the letterhead of Eddie Lee & Co. in which that firm was described as having been instructed by them on an agreed fee basis of $20,000.

58.  Earlier (para. 21) the judge noted the circumstances in which Mr Tochukwu and Mr Ryan came to sign an engagement letter (P19) dated 27 July 2007, addressed to Messrs Eddie Lee & Co. and in which Eddie Lee & Co. was described, together with the applicant, as their legal representatives.  It is to be noted that the letter had no letterhead.  The judge did not advert specifically to the evidence of Mr Tochukwu, in particular that he attached no significance to the reference to Eddie Lee & Co.  In his testimony, Mr Tochukwu denied that Ho Ying Pan had explained that Mr Eddie Lee had come to take up the case because his own boss had declined to do it.  Of the engagement letter, he said (transcript 203) :

“… it said appointment of legal representative. I saw both of them, right, Lee and Ben. I’m signing I don’t know who this Lee … really I don’t know… she says, ‘sign this document to represent-authorising us to represent you’ that was why I will sign. And I read that-I saw-I saw the name of … barrister Lim there. I don’t know Eddie Lee, I don’t know.”

59.  Of the fact that at the meeting between Mr Eddie Lee, Mr Tochukwu and Mr Ryan on 17 August 2007 at Lai Chi Kok Reception Centre the applicant had forearmed Mr Eddie Lee with a letter of introduction stating, “Mr Eddie Lee is here on our behalf” the judge observed (para. 104) that was not consistent with there having been a lengthy discussion between the three of them on 31 July 2007.

(5)     As to (v)—the issue of whether or not the applicant uttered the threat “no money, no court”

60.  Next, it was submitted that the judge had failed to have regard to the evidence of Ms Vickie Smith that the applicant had told her on the telephone that if she did not raise the US$2,500 needed to fund the representation of Mr Ryan she would not attend court : “no money, no court”.  Firstly, it was to be noted that Ms Vicky Smith accepted she had made no mention of that threat in her statements to ICAC.  Secondly, it was contended that, in context, the evidence of Ms Vickie Smith was that, after visiting her husband in Lai Chi Kok Reception Centre she had contacted her sister in the United States of America to raise that amount of money for Mr Ryan prior to speaking to the applicant.  Furthermore, Ms Vickie Smith had not expressed outrage in face of such a threat.  Her response had been merely to tell the applicant, “Okay, no problem.”

61.  In those circumstances, the judge erred in determining (para. 85) that had the threat not been made Ms Vickie Smith would not have felt “the urgency to get the additional sum straightaway”, namely to have contacted her sister as she did.

Discussion

62.  The judge was aware of the fact (para. 83) and addressed specifically the failure of Ms Vickie Smith to mention in her statements to ICAC, inter-alia, the threat uttered by the applicant : “no money, no court.”  It is to be remembered that it was the evidence of Ms Vickie Smith that the request by the applicant that she secure US$2,500 for the representation of Mr Ryan, as part of the strategy to obtain from the Prosecution an offer of ‘no evidence’ for her husband, was made on 25 July 2007 at her meeting with the applicant in her Chambers.  Of the urgency with which she attended to the matter, she said that on 26 July 2007 she had telephoned her sister and requested that money be sent to her.  Her sister did so by ‘Money Gram’ on 27 July 2007.  She was able to collect that money on 28 July 2007.  Of that sequence of events, the judge determined (paras 84-5) :

“84.   I find that if D2 had not mentioned “no money, no court”, to Smith, there would not have been such urgency in the matter. Smith had, by then, already paid for her husband.  If D2 had not issued the threat, Smith would, in the normal course of events, have expected D2 to attend court in the forthcoming hearing, at least on behalf of her husband.  There was thus no urgent need for Smith to find money to pay for Ryan’s legal fees.

85.     I am therefore sure that D2 had indeed made the threat which then caused Smith to feel the urgency to get the additional sum straightaway. ”

63.  In her evidence (transcript 93-94) Ms Vickie Smith said that, after she had visited the applicant’s Chambers on 25 July 2007 and made the first of the US$2,500 payments, the following day she had visited her husband at Lai Chi Kok Reception Centre.  Of the fact that he was due to go to court in “two or three days time”, she said that he was “stressing”.  She went on to say :

“When I left the court that day I called Valerie (the applicant). Valerie told me if I didn’t pay for Ryan she wouldn’t show up in court for my husband. I told her, ‘Okay, no problem.’ I called my sister.”

64.  She repeated that answer in a reply to a question from the Court.  She said she had discussed the matter with her husband, who told her to follow the applicant’s lead.  Then, when asked if she had called the applicant after that visit she said (transcript 94C) : “No, I called my sister to get that US$2,500.”

65.  However, almost immediately she contradicted that response and confirmed that she had called the applicant :

“A. … that was on the 26^th.when she said that if I didn’t pay for Ryan, then she wouldn’t show up in court.

Q. Right. And then what happened? What do you say to her then?

A.  I told her, ‘Okay, I’ll have to look, source for the money.’  What else could I say?  I’ll just source the money.”

66.  It is clear that Ms Vickie Smith made a slip of the tongue when she referred to having called the applicant “when she left court that day”.  There was no court hearing for her husband on 26 July 2007.  Obviously, in true context, she was referring to having left Lai Chi Kok Reception Centre, having visited her husband.  Similarly, even in her second version of the sequence in which she said that she made telephone calls to her sister and the applicant, her evidence that she told the applicant that she would, “look, source the money”, suggests strongly that the phone call to the applicant pre-dated her request to her sister, who responded by providing the monies immediately by ‘Money Gram’.  If she had secured her sister’s support prior to speaking to the applicant, it would be very surprising that she would tell the applicant that she would, “look, source the money”.

67.  Relevant to the suggestion that the response of Ms Vickie Smith to the threat of the applicant, “no money, no court”, namely “Okay, no problem”, is a placid response and belies the outrage to be expected when confronted with such conduct, are the circumstances by which Ms Vickie Smith and her husband were then confronted : they were both foreigners in Hong Kong, strangers to its legal system and he was remanded in custody.  As noted earlier, on her visit to him in Lai Chi Kok Reception Centre on 26 July 2007 she said of her husband, that he was “stressing ... is he going to have a lawyer, is somebody going to represent him.”  She added, “he wanted to get out … he just wanted out, was basically his thing.”  Of course, the judge had the advantage over this court of having heard the witness testify at some length.  Of that, the judge noted (para. 83) :

“I have watched Smith giving evidence in court, she was very forthcoming and was firm and clear in her evidence.”

(6)     As to (vi)—the issue of motives for revenge against the applicant in Ms Vickie Smith, her husband and Mr Ryan

(a)     Grounds 1(8), (9) and (10)

68.  It was submitted that the judge had failed to consider appropriately the issue of a motive for revenge against the applicant in Ms Vickie Smith, her husband and Mr Ryan.  It was contended that in context Ms Vickie Smith believed her husband to be an innocent bystander in respect of the allegations against him and that she believed him to have been pressured into pleading guilty.

69.  Of Mr Tochukwu, it was contended that his motive for giving false testimony against the applicant was that, whilst he accepted that he was present at the scene of the crime alleged, he was not a party to it.  He was pressurised into pleading guilty, in particular as a result of the ultimatum given to him on 17 August 2007.  He had mounted an unsuccessful appeal against conviction on that basis.

70.  Of Mr Ryan, it was suggested that his motive for revenge against the applicant lay in his evidence that he had been led to expect a very much lighter sentence of imprisonment than one imposed upon him.

Discussion

71.  The judge rejected the suggestion made by counsel for the applicant that Ms Vickie Smith’s denial that she knew the case against her husband was strong undermined her credibility.  She noted that when Ms Vickie Smith left Hong Kong in early August 2007 the strategy was for Mr Ryan to be put forward to exonerate her husband.  That was evidenced by the letter dated 3 August 2007 (exhibit D6) in which it was proposed that Mr Ryan plead guilty to both charges and that the prosecution offer no evidence against her husband.  Further, the judge accepted as true Ms Vickie Smith’s testimony that it made no sense for her pay for Mr Ryan’s legal fees if her husband was to plead guilty from the beginning (paras 86-87).

72.  In cross-examination, she was asked if her motive for lodging a complaint to the ICAC against Ho Ying Pan and the applicant was that, against her expectation and belief, her husband had been sentenced to a term of imprisonment.  She responded by saying that, having read the bylaws applicable to a barrister in Hong Kong, she had come to know that the applicant had broken a number of them (transcript 144) :

“When she engaged me she was not a solicitor, she had no business taking money from me, she had no business going out on her own to instruct into anything.”

73.  She denied that she was motivated by personal vindication :

“No way, because I hope she hasn’t done this to other people, or will she continue to do it to others.”

That, also was the reason that she had made an affirmation for the Court of Appeal in her husband’s appeal.

74.  Of the issue of a motive, adverse to the applicant, inMr Tochukwu and Mr Ryan, the judge found (para. 98) :

“Even if they might not have been entirely pleased with the work of D1 and D2, I am sure that they did not fabricate their evidence and what they told the court is true.”

75.  Of Mr Ryan, she noted that (para. 99) :

“… he was not the one initiating the complaint to the ICAC. He told the court that he was not interested in reporting anything and all that he wanted was to return to the United Kingdom. I accept this evidence of his. As a matter of fact, Ryan did not lodge any appeal against his conviction in his own fraud case.”

76.  It was in that context, namely alive to the issue of motives adverse to the applicant, including revenge, that the judge made the determination in respect ofMr Tochukwu and Mr Ryan (para. 99) :

“I am sure that Ryan and Tochukwu had not put their heads together to fabricate against D1 and D2.”

(7)     As to (vii)—the criminality of Mr Tochukwu and Mr Ryan

77.  It was contended that the judge had failed to give proper consideration to the extent of the criminality of both Mr Tochukwu and Mr Ryan.  It was suggested that in context Mr Tochukwu’s evidence was a denial of participation in the offence to which he had pleaded guilty.  The judge’s observation in respect of both men that they were “economical with the truth” in respect of those earlier offences was a manifest understatement.  Mr Tochukwu was lying to the court when he denied involvement in that offence.  In accusing the applicant for being responsible for “making me suffer what I did” in being imprisoned Mr Ryan was to be taken as similarly asserting innocence.

Discussion

78.  This ground is addressed in the ‘Discussion’ of Ground 3.

(8)     As to (viii)—the reasons for the rejection of the evidence of Mr Eddie Lee, where it contradicted the evidence of Mr Tochukwu and Mr Ryan

79.  It was contended that the judge had failed to give safe or proper reasons for rejecting the evidence of Mr Eddie Lee, where it contradicted the evidence of Mr Tochukwu and Mr Ryan.  In particular, it was submitted that the judge advanced unsafe reasoning for rejecting the evidence of Mr Eddie Lee of the ambit of the conversation that he said that he had with Mr Tochukwu and Mr Ryan in the cells of the District Court on 31 July 2007 (paras 101-104), namely in respect of :

(i)    the judge’s observation that the evidence of Mr Eddie Lee, as to the sequence in which he had a conference with Mr Tochukwu and Mr Ryan and the hearing in court, “was confusing and did not sit well with other evidence”;

(ii) the judge’s finding that the attendance note made by Mr Eddie Lee that Mr Tochukwu and Mr Ryan “wanted to PG to the charges” was not consistent with the offer made on 3 August 2007 to the prosecution that they accept pleas of guilty to the charges from Mr Ryan, but offer no evidence against Mr Tochukwu; and

(iii)   the judge’s rejection of the evidence of Mr Eddie Lee that he had shown and discussed with them the retainer letter of 28 July 2007 in which the fees were stipulated as being HK $20,000 on the basis that was inconsistent with the introduction of Mr Eddie Lee to them as set out in the applicant’s letter of 17 August 2007.

Discussion

80.  As is apparent from the judge’s reasoning (para. 101), whilst she was critical of Mr Eddie Lee’s account of the events of 31 July 2007 as being “confusing” it is clear that she was alive to the explanation that he had offered for the confusion, namely that whilst he had recorded the time 9:30 a.m. in respect of the heading “Court”, it might have been the fact that the case was not called on then and that, before it was called on, he had gone down to the cells to see Mr Tochukwu and Mr Ryan.  On that basis the documentary evidence contradicted his oral testimony.  Other than adverting to the obvious issue of confusion, the judge made no material adverse finding in consequence.

81.  Clearly, the judge was entitled to determine, as she did, that the evidence of Mr Eddie Lee, supported by his Attendance Note, that both Mr Tochukwu and Mr Ryan had said in that conference that they wanted to plead guilty was inconsistent with the stratagem that was then being pursued and which led to the letter of 3 August 2007 to the prosecution inviting them to accept pleas of guilty from Mr Ryan on both charges but to offer no evidence against Mr Tochukwu. Further, as she noted it was inconsistent with Mr Ryan providing a letter (P22) to the applicant exonerating Mr Tochukwu.

82.  Of more significance was the judge’s acceptance of the evidence of Mr Tochukwu and Mr Ryan that they were not shown nor was there any discussion about the retainer letter dated 28 July 2007 that asserted that HK$20,000, rather than US$5,000, had been paid by Ms Vickie Smith.  Clearly, it was of material relevance for the judge to have regard to the letter of introduction of Mr Eddie Lee provided by the applicant dated 16 August 2007 in which she apologised for not attending personally and said ‘Mr Eddie Lee is here on our behalf”.  If Mr Lee had participated in the extensive discussions on 31 July 2007 that introduction would have been wholly unnecessary.

83.  In the context of his conduct on 31 July 2007, the judge noted (para. 32) that although Mr Eddie Lee said that he had attended the District Court that day in possession of a receipt in the sum of HK$20,000, being the monies received from Ms Vickie Smith, which he intended to give her he “forgot” to do so.  Further, that he had never mailed such a receipt to her.

Ground 2—the wrongful restriction of the ambit of cross-examination

Discussion

84.  Of the submission made on behalf of the applicant, that the judge had erred in restricting the ambit of cross-examination of Mr Ryan, it is to be noted at the outset that the cross-examination was being conducted by counsel for Ho Ying Pan, not the applicant.  Mr Lok SC did not ask to be heard on the issue at that time or subsequently when he came to cross-examine Mr Ryan.

85.  Furthermore, the judge’s intervention, followed by her ruling, came after the witness had answered questions relating to the primary issue that counsel for Ho Ying Pan told the court he wished to explore with the witness.  Mr Polson, counsel for Ho Ying Pan, explained to the judge that he was exploring what had happened to the money that the victim of the fraud had handed over (transcript 248) :

“Well, I would say, had they taken the money out of Hong Kong why were they coming back again?

…

I was going to ask him whether he had personally received any of the money.  He denied that.”

86.  Earlier, the following interchange had occurred with counsel and the witness (transcripts 246-247) :

“Q. ... did you receive from a Mr Frank Dier … the sum of US$35,000 cash?

A. No I didn’t.

Q. All right. And a few days later, did you receive a further $15,000 cash from this Mr Dier?

A. No, I didn’t.

…

Q. Now, it was the prosecution case against you that you had obtained the full $50,000 before 12 June, but you’d left Hong Kong on 12 June. In other words it’s the prosecution case that you’d received this $50,000. You left Hong Kong and came back again, right?

A. I don’t know. I can’t remember.”

87.  Clearly, the issues that counsel wished to raise with the witness, that went to both the character and credibility of Mr Ryan, had been canvassed by counsel before the judge’s intervention. He denied benefiting from receipt of the $50,000.  It is to be noted that the Summary of Facts, accepted by Mr Ryan when he tended his plea of guilty, stated in terms that Mr Ryan, representing himself to be Mr Paul Oberst had received a total of $50,000 on two separate occasions, 9 and 11 June 2007, from the victim of the fraud.

Ground 3—the dangers of acting on the evidence of Ms Vickie Smith, her husband and Mr Ryan

88.  In approaching her assessment of the evidence of Mr Tochukwu and Mr Ryan the judge said that she accepted what she said had been the submission of leading counsel then appearing for the applicant (para. 97) :

“Whenever they were describing events regarding D1 (Ho Ying Pan and) and D2 (the applicant), they did it in a natural and normal way but they retracted whenever being asked regarding the fraud case.”

The judge fell into error in attributing the whole of the statement to Mr Lok SC.  In fact, it was his submission that their evidence was presented as “natural and normal” in respect of both aspects of their evidence.  He asserted of the manner in which they retracted evidence of the participation in the fraud alleged against them that it was, “just as natural as the description of events concerning these defendants.”

89.  Of their retraction of participation in the fraud case, the judge went on to say :

“Both of them, despite their pleading guilty and admitting the summary of facts at the time, attempted to retract from those admissions. They both gave the impression that they were economical with the truth about what happened which led to their being arrested and convicted of the offence in the previous District Court case.” [emphasis added]

90.  The criticisms that are made of the judge’s determination that they were “economical with the truth”, namely that it was unwarranted and too generous to them, is to misunderstand the expression.  It is a euphemism for lying by conveying an untrue version of events by leaving out the important facts.  That was its meaning when used by Sir Robert Armstrong, the Cabinet Secretary of the United Kingdom government, in the proceedings in an Australian court arising out of the publication of the book ‘Spycatcher’.  Thereafter, it gained common currency.

91.  It is significant that it was in the context of having made that finding that the judge immediately went on to articulate the caution that she took in approaching the evidence of Mr Tochukwu and Mr Ryan (para. 98) :

“I have warned myself of the danger in accepting part of a witness’s evidence when there are doubts as to his other evidence. I have also exercised great care in assessing the part of their evidence on which I rely.”

92.  In determining that she was able to rely on their evidence the judge specifically addressed the issue of whether or not they had fabricated their evidence.  Clearly, that required her to have regard to the issue of collusion between them.  It is to be remembered that, other than on the first occasion that the applicant and Ho Ying Pan met Mr Tochukwu alone on 24 July 2007, Mr Tochukwu and Mr Ryan were always together when they met the applicant. She went on to observe (para. 98) :

“Moreover, reluctance to reveal or accept one’s responsibility in a criminal offence and fabrication of allegations against one’s lawyers are not quite the same thing. I have observed Tochukwu and Ryan giving evidence in court and I find that when relating matters on what happened on the occasions when they met with D1, D2, EL (Ho Ying Pan, the applicant and Mr Eddie Lee respectively), they were forthcoming and were telling the court what actually happened. Even if they might not have been entirely pleased with the work of D1 and D2, I am sure that they did not fabricate their evidence and what they told the court is true. I also note that the bulk of their evidence is corroborated by Smith’s evidence and part of it supported by documents like exhibits P22 and D6.”

93.  Of Mr Ryan, she noted (para. 99) that he had not lodged any appeal against his conviction, nor had he initiated the complaint to ICAC.  All he had wanted to do was to do was to return to the United Kingdom.  In cross examination by counsel for the applicant, Mr Ryan said of the approach of ICAC to him (transcript 271) :

“I wasn’t interested anyway in reporting anybody or anything because I wanted to put the whole thing behind me, just finish with this sentence and get back to the UK.”

(a) ‘No money, no court’

94.  Of the issue of the ‘threat’ made by the applicant first to Ms Vickie Smith by telephone on 26 July 2007 (para. 18) and then to her husband and Mr Ryan at Lai Chi Kok Reception Centre on 27 July 2007 (para. 21) that, if the payment of US$2,500 was not forthcoming in respect of the representation of Mr Ryan, the applicant would not attend court it is clear that the judge was mindful of the evidence that none of them had mentioned that threat in any of their out-of-court statements and that she had regard to the possibility of collusion between them (para. 85) :

“I am therefore sure that D2 had indeed made the threat which then caused Smith to feel the urgency to get the additional sum straight away. Insofar as Tochukwu and Ryan are concerned, I am also sure that D2 had uttered this ‘no money, no court’ threat to them. Although none of them had mentioned this in their statements, I am sure it was what actually happened and they told the court so. The three did not put their heads together to fabricate this.”

95.  As noted earlier, the judge addressed specifically the failure of Ms Vickie Smith to mention in her statements to ICAC, inter-alia, the threat uttered by the applicant: “no money, no court.”  Nevertheless, she determined that she was satisfied that the threat had been uttered to Ms Vickie Smith.

(b) The judge’s awareness of the character of Mr Tochukwu and Mr Ryan

96.  Clearly, given that it played a central role in the conduct of the trial, it beggars belief that the judge was anything other than acutely aware of the character of Mr Tochukwu and Mr Ryan, in particular that they had been convicted on their own pleas of guilty to a single charge of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210.  The Summary of Facts accepted by them in the District Court was an exhibit in the trial, D11.  Further, she was made aware that Mr Tochukwu had pursued an appeal against conviction on the basis that he had been pressured into tendering a plea of guilty and that the Court of Appeal had rejected the application roundly.  The judgment of the Court of Appeal was an exhibit in the trial, D12.

CONCLUSION

97.  For the reasons set out above we were satisfied that there were no merits in any of the proposed grounds of appeal against conviction. Accordingly, the application for leave to appeal against conviction was dismissed.