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CACC 424/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 424 OF 2013
(ON APPEAL FROM HCCC NO. 323 OF 2012)
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BETWEEN
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HKSAR
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Respondent |
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and
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MA SIN CHI (馬善智) |
1st Appellant |
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HA BUT YEE (哈弼意) |
2nd Appellant |
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| Dates of Hearing : 17 June and 11 July 2016 |
| Date of Judgment : 17 June and 11 July 2016 |
| Date of Reasons for Judgment : 15 July 2016 |
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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :
1. On 16 June 2016, we quashed the appellants’ convictions of 6 December 2013 after trial by P Li J and a jury for multiple offences, contrary to section 9 of the Prevention of Bribery Ordinance, Cap. 201. Notwithstanding objections on his behalf, we acceded to the respondent’s submissions and, pursuant to section 83V of the Criminal Procedure Ordinance, Cap. 221, we ordered that the 1st appellant be retried on a fresh indictment. In the face of objections to the order of a retrial in respect of the 2nd appellant, we adjourned the hearing and ordered the preparation of a medical report from Queen Mary Hospital describing his diagnosis, treatment and prognosis for cancer of the liver. At the adjourned hearing on 11 July 2016 we ordered that the 2nd appellant be retried. We said that we would give our reasons for so ordering in due course. That, we do now.
2. Each of the appellants had been sentenced to a total of 7 years’ imprisonment. The offences occurred in the period January 2007 to May 2008 and concerned the payment to the 1st appellant at the direction of the 2nd appellant of $24.8 million.
3. The counts against the 2nd appellant alleged that he, together with members of his family, offered advantages to the 1st appellant. The counts against the 1st appellant alleged that he accepted these advantages. It was averred that the 1st appellant, a chief trader of the derivative warrant trading group in Deutsche Bank and licensed by the Securities and Futures Commission to deal in securities and futures, was an agent of two principals, Deutsche Bank Aktiengesellschaft (“Deutsche Bank”) and Deutsche Securities Asia Limited (“DSAL”). Throughout the period from January 2007 to May 2008, the 2nd appellant, and to a lesser extent his sons, were very active traders of Deutsche Bank derivative warrants, as a result of which the 2nd appellant and his family had dealings with the 1st appellant which related to the affairs or business of the 1st appellant’s principal.
4. The corrupt purpose for which these advantages were offered by the 2nd appellant and accepted by the 1st appellant, as particularised in the counts, was for the giving of information on derivative warrants, issued by Deutsche Bank and of which DSAL was the liquidity provider, to the 2nd appellant, which may assist the 2nd appellant and his associates in their trading of those derivative warrants. It was averred that the payments were offered and accepted as an inducement to or reward for or otherwise on account of the 1st appellant doing or having done acts in relation to his principal’s affairs or business.
The submissions of the respondent
5. In support of his application, that the Court order the retrial of both appellants, Mr Martin Hui SC submitted that it was in the interests of justice to do so. The case was very serious. The conduct of both appellants was the cause of a gross breach of trust by the 1st appellant, as its chief trader in derivative warrants, to Deutsche Bank. The 2nd appellant had directed payments be made to the 1st appellant over a period of 17 months, of $24.8 million. For their part, the 2nd appellant and his family made profits of over $224 million. In so conducting themselves, the appellants acted contrary to the substantial interests of a large number of investors. Their conduct had a significant adverse impact on Hong Kong’s reputation as a financial centre.
6. Mr Hui submitted that the prosecution case was strong, relying as it did on the telephone records of conversations between the appellants before trading occurred. There was no dispute that immense profits have been made. Whilst there was no dispute that $24.8 million had being paid to the 1st appellant, at issue was the purpose of the payments. The defence case was that about $18 million of those payments were made from profits made in the trading of Hang Seng Index futures in the account of the 5th defendant at trial. The 1st appellant did not know why the 3rd and 4th defendants at trial had made payments to him of $3.8 million and $1.6 million respectively.
Chronology
7. Mr Hui submitted that a review of the chronology of the significant events in the case indicated that, given its complexity, there was no delay in the investigation or prosecution of the appellants.
· January 2007 to May 2008 - the commission of the alleged offences;
· 12 May 2010 - commencement of the investigation;
· 12 April 2011 - the arrest of the appellants;
· 12 January 2012 - the appellants were charged;
· 27 September 2012 - an indictment was filed;
· 2 September 2013 to 9 December 2013 - trial (56 days).
The submissions of the 1st appellant
8. In his submissions opposing the order of a retrial in respect of the 1st appellant, Mr Edward Chan invited the Court to note that, having been sentenced to 7 years’ imprisonment on 9 December 2013, the 1st appellant had served more than 2½ years’ imprisonment. He submitted that it would be excessively oppressive and unfair to order him to be retried.
The submissions of the 2nd appellant
9. In his submissions, Mr Joseph Tse SC informed the Court at the hearing on 16 June 2016 that whilst in custody the 2nd appellant had been diagnosed with liver cancer, which had been treated by liver radio frequency ablation. At very short notice, Dr Kong Siu Ming, a Senior Medical Officer, who attended the 2nd appellant at Stanley prison, attended court and testified as to the treatment of the 2nd appellant. For that assistance we are most grateful. Dr Kong did so from the available medical records, making it clear that he was a general practitioner, not a cancer specialist. It was in those circumstances that we called for and received a medical report from Queen Mary Hospital on the diagnosis, treatment and prognosis of the 2nd appellant.
The medical evidence
10. Dr Tsang Hing Yin, Simon, an Associate Consultant of the Department of Surgery of Queen Mary Hospital, said that the 2nd appellant was a hepatitis C carrier. On 14 January 2016, as part of an investigation for the 2nd appellant’s elevated serum alpha-fetoprotein, a 1.8 cm tumour had been revealed in Segment 8 of his liver. It was compatible with, “hepatocellular carcinoma (a primary malignant tumour of the liver).”
11. On 18 April 2016 the 2nd appellant underwent radio frequency ablation (RFA) of the tumour on the liver. The procedure was uneventful, and he was discharged from hospital on the day after his treatment. Of the success of the procedure, Dr Tsang said:
“ His serum alpha-fetoprotein fell from 21 ng/ml two days before treatment to a normal level of 3 ng/ml on 26 May 2016, which is a sign of good response to treatment.”
12. Of the 2nd appellant’s prognosis, Dr Tsang said:
“ RFA is an effective curative treatment for small primary tumours of the liver, where liver resection is considered too risky due to the patients underlying chronic liver disease. Mr Ha’s prognosis is quite good. The five-year survival rates following RSA for tumour similar to Mr Ha’s is quoted in the medical literature to be over 65%.”
Further submissions on behalf of the 2nd appellant
13. Although he acknowledged that there was no medical evidence to support his submission, Mr Tse said that the stress of a retrial would have a “very dramatic and traumatic effect” on the 2nd appellant. He invited the Court to note that, even for a fully fit defendant, retrial is an ordeal. He suggested that it would be a year before any retrial would be complete. He invited the Court to note that the anticipated date of release of the 2nd appellant, at the time his convictions were quashed, was August 2018. The 2nd appellant had no more than two more years to serve in prison.
14. Next, Mr Tse submitted that the strength of the prosecution case was undermined by the defence case, namely that the payments were explained as being remittances of profits of trading in the 5th defendant’s account in Hang Seng Index futures on behalf of the 2nd appellant. Mr Tse submitted that support for the defence case, as testified by the 1st appellant, was also to be found in the testimony of the 5th defendant, who said that she had handed over operation of her account to the 2nd appellant. Profit and loss on that account was entirely that of the 2nd appellant. Furthermore, some prosecution witnesses confirmed that on occasions, in placing Hang Seng Index futures orders, the 2nd appellant had shouted out that the order was for “Eric”. That is the name of the 1st appellant. Ms Ivy Sit testified that, on occasions that she had answered the telephone for the 2nd appellant, she had even received orders to trade in Hang Seng Index futures by telephone from the 1st appellant.
Further submissions of the respondent
15. In the context of the likely timeline for the commencement and completion of a retrial, Mr Hui informed the Court that the respondent had taken steps towards securing another expert to be called at a retrial, either in replacement of or in addition to Mr Eric Cheng Kai Sum. He accepted that such an expert had not been instructed as yet and that, even if his report was served in the next several months, the defence would be entitled to consider and respond to such a report before trial.
A consideration of the submissions
The law
16. In the advice of the Privy Council in Au Pui Kuen v Attorney General,[1] Lord Diplock said of the power of a court to order a retrial :[2]
“ The power to order a re-trial must always be exercised judicially. Any criminal trial is to some degree an ordeal for the accused; it goes without saying that no judge exercising its discretion judicially would require a person who has undergone this ordeal to endure it for a second time unless the interests of justice require it.”
17. Of the exercise of that discretion, Lord Diplock went on to note that:[3]
“ (it) may involve a court in considering and balancing a number of factors some of which may weigh in favour of a new trial and some may weigh against it. The interests of justice are not confined to the interests of the prosecutor and the accused in the particular case. They include the interests of the public in Hong Kong that those persons who are guilty of serious crimes should be brought to justice and should not escape it merely because of a technical blunder by the judge in the conduct of the trial or his summing up to the jury.”
18. Finally, having noted that, “…the strength of the evidence adduced against the accused in the previous trial is clearly one of the factors to be taken into consideration” Lord Diplock said:[4]
“ …but it is only one among what may be many other factors; and if the Court of Appeal are of (the) opinion that on a proper consideration of the evidence by the jury a conviction might result it is not a necessary condition precedent to the exercise of their discretion in favour of ordering a new trial that they should have gone further and reached the conclusion that a conviction on the retrial was probable.”
19. In his judgment in the Court of Final Appeal in Ting James Henry v HKSAR [5], with which all the other judges agreed, having adverted to an earlier passage in the judgment of Lord Diplock in Au Pui Kuen v Attorney General,Lord Woolf said that the fact that a defendant has already undergone one trial was, “…a factor that has to be given the greatest weight” in determining whether or not to order a retrial.
20. In giving the judgment of this Court in R v Holgate [6], in refusing to order a re-trial, having quashed the conviction of the appellant for maintaining a standard of living which was above that which was commensurate with his emoluments, contrary to section 10(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 Mortimer JA said:[7]
“ On an application for a retrial, it is necessary for a court to consider all the surrounding circumstances. These include the seriousness of the offence, the history of the proceedings, the evidence for both prosecution and defence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since trial and the length of sentence which the appellant may have served.
It is necessary to then weigh the public interest in ensuring that those guilty of serious crime are brought to justice and punished against the effects of putting a successful appellant through the ordeal of a further trial.”
21. We are satisfied that the offences of which the appellant were convicted were indeed very serious offences. Clearly, they undermined the reputation for integrity in Hong Kong as a financial centre. The conduct of the appellants struck at the very core of the relationship of agent and principle between the 1st appellant and Deutsche Bank. The seriousness of the offences was reflected in the sentences imposed on the appellants.
22. Regrettably, it was judicial error that led this Court to quash the convictions of the appellants. Such an error should not baulk or prevent the public interest in securing justice in cases of serious crimes.
23. Of the strength of the prosecution case, it is to be noted that, even on the defence case as articulated in the first trial, a substantial sum of money paid to the 1st appellant through the Ha family accounts is not accounted for as being profits made in the account in the name of the 5th defendant in which it is said trading in Hang Seng Index futures was performed for the benefit of the 1st appellant. Given that we have ordered that the appellants be retried, it is not appropriate that we say more on this subject.
24. We are conscious that a retrial is an ordeal for appellants who, together with their families, have undergone the stresses and strains inevitably resulting from the first trial. Also, there is the factor of the financial burden of the costs of a retrial to the appellants. Whilst the offences concern events in the period January 2007 to May 2008, there is no suggestion that the prosecution is culpable of undue delay in the investigation or in bringing the matter on for trial. The delay in the hearing of the appeal, of over two years, was in significant measure due to the fact that the parties estimated that no less than five days was required for the hearing. In the event, the hearing took six days.
25. Whilst the appellants have served a substantial period of imprisonment, nevertheless a substantial period of imprisonment remains to be served.
26. Having made enquiries into the medical condition of the 2nd appellant and, in light of the prognosis provided to the Court by Dr Tsang, we are satisfied that his medical condition is not such that, in conjunction with the other factors to which we have referred, tips the balance in favour of not ordering a retrial. On the contrary, we are satisfied that it is appropriate to order a retrial of both appellants.
Conclusion
27. For the reasons set out above we made separate orders that the appellants be retried by a different judge on a fresh indictment, including the counts on the existing indictment. Further, we ordered that the indictment be filed within 14 days and that the matter be before the Listing judge to the fixing updates within 28 days hereof.
Costs
28. The parties being agreed as to the issue of costs we ordered that:
(i) the 1st appellant have the costs of the appeal, with a certificate for two counsel, to be taxes not agreed;
(ii) the 2nd appellant have the costs of the appeal, with a certificate for two counsel, to be taxed if not agreed, save in respect of the costs in relation to grounds 6 and 9 of the Perfected Grounds of Appeal.
| (Michael Lunn) |
(Andrew Macrae) |
(Ian McWalters) |
| Vice President |
Vice President |
Vice President |
Mr Martin Hui SC, DDPP(Ag) and Ms Peggy Lo, SPP, of the Department of Justice, for the respondent
Mr Edward Chan, instructed by Lee & Chow, for the 1st appellant
Mr Joseph Tse, SC and Ms Doris Ho, instructed by Howell & Co., for the 2nd appellant
[1] Au Pui Kuen v Attorney General 1979 HKLR 16.
[2] Au Pui Kuen v Attorney General, page 19.
[3] Au Pui Kuen v Attorney General, page 20.
[4] Au Pui Kuen v Attorney General, page 21.
[5] Ting James Henry v HKSAR [2007] HKCFA 71.
[6] R v Holgate (No. 2) [1996] 3 HKC 324.
[7] R v Holgate (No. 2), page 325 I.
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