HKSAR v. NG MAN YEE

CACC 278/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO CACC 278 OF 2013

(ON APPEAL FROM DCCC NO 1200 OF 2012)

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JUDGMENT

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

Introduction

1.  On 24 July 2013 the applicant was convicted after trial in the District Court by Judge Browne (“the judge”) of the offence of dealing with property known or reasonably believed to represent the proceeds of an indictable offence, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455.  This offence, commonly known as money laundering, was alleged to have occurred between 6 May 2006 and 19 May 2012 during which period the applicant was alleged to have dealt with HK$77,984,090.31 Hong Kong currency in a bank account in his name knowing or have reasonable grounds to believe that this money directly or indirectly represented the proceeds of an indictable offence.

2.  On 29 July 2013 the applicant was sentenced by the Judge to 5 years and 6 months’ imprisonment.  The applicant applied for leave to appeal against sentence and at the hearing of his application we reserved our judgment which we said we would hand down at a later date.  This we now do.

The Background to the Offence

3.  The applicant had a relationship in Hong Kong with a woman named Connie Ng who subsequently moved to Taiwan.  This woman bore his child in June 1993 before, in December of that year, taking up residence in Taiwan.  This woman did not return to Hong Kong after the arrest of the applicant on 19 May 2012 and at the time of trial was a wanted person.  We have been informed that since then she has returned and been arrested.

4.  The applicant claimed that this woman asked him to open the account the subject of the charge as she wanted a bank account in Hong Kong in the name of someone she could trust.  It was in these circumstances that the applicant came to open an account in his name for the use of another.  He said that he agreed to do as this woman requested as she had assumed sole responsibility for the upbringing and education of their daughter and he felt that this was one of the few ways in which he could assist her.

5.  Bank records in respect of this account (“A/C1”) showed that during the charge period the sum particularized in the charge was deposited into the account.  Withdrawals from the account amounted to just over HK$77.3 million dollars.  There were 230 deposits and 238 withdrawals and of these the applicant was personally responsible for seven.  They were all transactions involving more than HK$1 million and totalled in value HK$16 million.

6.  The applicant also allowed Connie Ng use of a second bank account in his name, a VISA account and a Hong Kong Jockey Club betting account.  Transfers could be effected to and from the bank accounts by phone or internet but not for amounts in excess of HK$1 million.  In respect of the second bank account there were, in the charge period, deposits of HK$29 million and withdrawals of just over HK$30 million.  Between January 2007 and May 2012 there were 27 transfers from A/C1 to this account totalling HK$25,200,000. There were 14 transfers totalling HK$12,970,000 from this account to A/C1.

The Mitigation

7.  The applicant is a person of clear record, and is 47 years of age.  During the charge period the applicant was working as a jeweler with earnings rising to a maximum of HK$27,000 per month.  He married in 2007 and has two children by his wife.  His wife earned HK$40,000 to HK$50,000 per month as an accountant.  As a result of his arrest he was dismissed from his employment and since that time has been unemployed.

8.  It was submitted on his behalf that this offence of money laundering was at the lower end of the scale of seriousness as there was no evidence to suggest the nature of the predicate offence or that the applicant had any knowledge of what the predicate offence might be.  Nor was there evidence of any benefit received by the applicant from his money laundering activity.  It was said that there was no suggestion that he was living beyond his means and the evidence showed that he resided in a modest flat that was subject to a mortgage.  The Court was urged to accept the applicant’s explanation that he became involved in this offence because of the moral obligation he felt to assist the mother of his daughter.  It was also said that this was not a case where funds flowed into the bank account from overseas and there was, therefore, no or very minimal international element in the commission of this offence.

The Reasons for Sentence

9.  After setting out the factual background to the offence and the mitigation that had been advanced on behalf of the applicant, the judge went on to address the legal principles relevant to sentencing for this offence.  He noted that no sentencing tariff exists for it but that the offence is invariably treated seriously and substantial sentences of imprisonment are regularly imposed in respect of it.  He reminded himself that the amount of money laundered will inevitably be relevant to sentence.

10.  He referred to a passage from the judgment of Yeung JA (as he then was) in HKSAR v Javid Kamran CACC 400/2004; unreported, 12 April 2005, which emphasized the seriousness of money laundering as an offence and the role it played in assisting those committing the predicate offence.  This passage also made the point that if the offence of money laundering could be successfully deterred, then that would prove an effective measure against crime generally.

11.  The judge also referred to the case of HKSAR v Leung Wai Wah and Anor CACC 201/2011; unreported, 9 November 2011.  From this case the judge quoted the following passage by Yeung VP at paragraph 24 of the judgment:

“From various cases cited to this court … it appears that the following factors are relevant to sentence in “money laundering” cases:

1. The amount of money laundered, which was described as the major consideration.

2. The nature of the offence that generated the “laundered money”.

3. The extent to which the offence assisted the underlying crime or hindered its detection.

4. The degree of sophistication of the offence.

5. The defendant’s participation, both in the underlying offence and in the “money laundering” activities.

6. The length of time that the offence lasted.

7. The benefit that the defendant had derived from the offence.

8. Whether there was an international element in the commission of the offence.”

12.  In applying these principles the judge then said:

“24 The amount of money laundered in this case is substantial. The predicate offence has not been established. As offences of this type go, this was not a sophisticated offence. I was satisfied that the defendant was centrally involved in the money laundering offence. He controlled the account through which the funds were laundered and he alone was entitled to make transfers of HKD1 million or more. He personally handled the transfer of HKD16 million. The offence lasted a considerable period of time, namely 6 years. There was no evidence as to what benefit the defendant derived from the offence. There was no evidence of funds being laundered from abroad. I was sure that the defendant tried to mislead the court as to the true nature and extent of his dealings with Connie Ng.” [1]

The judge then said that after taking into account all the circumstances, in his view the appropriate sentence for this applicant was one of 5 years and 6 months’ imprisonment.

The Grounds of Appeal

13.  There are four grounds of appeal.  The first is that the judge erred in his approach to sentencing the applicant in that his starting point for sentence was inconsistent with that adopted in other money laundering cases prosecuted in the District Court and failed to take account of the limited sentencing jurisdiction of this Court.  It is complained that the judge wrongly treated other cases cited to him as having been brought in the wrong court, yet the decision as to venue for trial is the sole prerogative of the Secretary for Justice.  The second ground of appeal is allied to the first and adds nothing further to it.

14.  His third ground of appeal is that given the personal circumstances of the applicant as to how he came to be involved in assisting Connie Ng and given that there was no evidence of what the predicate offence was and no international element to the commission of the money laundering offence, the sentence is manifestly excessive.

15.  The fourth ground of appeal is that in all the circumstances the sentence imposed on the applicant is manifestly excessive.

Discussion

16.  It is convenient to deal with the third ground of appeal first.  It is concerned with whether the judge had proper regard to the factors affecting his assessment of the seriousness of this offence and the culpability of the applicant.  From his discussion of the relevant case law in his Reasons for Sentence, it is clear that the judge was referred to and was aware of the factors relevant to these issues.

17.  It is also apparent from the transcript of Mr Oderberg’s mitigation that all the points to which he referred us in the course of this appeal were advanced by him in considerable detail to the judge in the court below.  But, insofar as their weight depended on an acceptance of the applicant’s account of his actions, it must be remembered that this was a sentence that was imposed after a trial in which the applicant gave evidence and was disbelieved.  The judge, in fact, said:

“I was sure that the defendant tried to mislead the court as to the true nature and extent of his dealings with Connie Ng.” [2]

From what we have seen of the evidence, as described by the judge in his Reasons for Verdict, this was a finding available to him and clearly accounts for the judge’s skepticism of the applicant’s portrayal of himself as being a victim of Connie Ng who abused his good nature in wanting to repay a moral debt to the mother of his child.

18.  For almost every point advanced by Mr Oderberg there is a contrary point.  Thus, whilst the money laundering scheme was not particularly sophisticated, the applicant was found, and correctly so, to be centrally involved in it.  Even though the origin of the monies could not be traced and, therefore, it could not be said that they were the proceeds of overseas criminal activity, it could be said that the person for whose benefit the money laundering was taking place was resident overseas.  Thus, a Hong Kong resident was assisting a person resident abroad to come to Hong Kong and abuse its banking system for the purpose of laundering the proceeds of crime.  For the purpose of sentence, this still constitutes, in our view, an aggravating feature of the offence.

19.  We cannot detect in the judge’s Reasons for Sentence any failure by him to take into consideration any factor to which he should have had regard or to accord incorrect weight to any such factor.

20.  Notwithstanding that there is no obvious error in the judge’s Reasons for Sentence we have nevertheless considered whether the sentence is outwith the range of sentences for this type of offence of this level of seriousness.

21.  This Court has repeatedly said that the offence of money laundering does not lend itself to tariff or guideline sentencing.  The most recent statement on this matter was by Stock VP in HKSAR v Boma [2012] 2 HKLRD 33, where he said at paragraph 24:

“… such is the variety of circumstances in which money laundering offences are committed and such the widely different roles played by those convicted of these offences, that it is one of those categories of offence in which it is neither realistically possible nor desirable to attempt guidelines.”

22.  The sentencing judge must therefore apply a principled approach to his task of assessing the seriousness of the offence and the culpability of the offender.  In this respect this Court has sought to provide assistance to trial courts by the identification of sentencing considerations and significant features of the offence relevant to these tasks.  This was done by Yeung VP in Leung Wai Wah and, in greater detail, by Stock VP in Boma.[3]

23.  The starting point is firstly to recognise the importance of the offence in the role it plays in society’s efforts to combat crime generally.  This was the point made by Yeung JA in Javid Kamran.  An effective anti-money laundering (“AML”) regime makes it harder for many predicate offences to be committed and when committed for those committing these crimes to enjoy the fruits of their criminal activities.

24.  Secondly, this importance of money laundering as an offence is reflected in the maximum penalty that has been enacted for it, namely 14 years’ imprisonment.

25.  Finally, given the role that the offence plays in the community’s efforts to combat crime and the very substantial maximum penalty that the legislature has enacted for it, the courts have said that the paramount sentencing consideration is deterrence.

26.  It is against this background that individual offenders will fall to be sentenced and this will be done by having recourse to the factors mentioned by Yeung VP in Leung Wai Wah and Stock VP in Boma and to any other factors which the sentencing judge decides are relevant to his tasks of assessing the seriousness of the offence with which he is dealing and the culpability of the particular offender before him.

27.  Just as a principled approach to sentencing for this offence is mandated because the circumstances of its commission can vary so widely, for precisely the same reason sentencing judges and this Court will derive little assistance from the citation to them of “comparable” cases.  Indeed, in this very appeal counsel for the respondent refers to other comparable cases to contradict those relied on by Mr Oderberg for the applicant.

28.  However, if comparable cases reveal the existence of an established sentencing range and it can be shown that the case under appeal is, inexplicably, outside that range then that may cause an appellate court to consider that judicial error might have occurred notwithstanding that none can be detected.  We express ourselves in deliberately qualified terms for appellate courts have long recognized that the determination of the correct sentence to be imposed on an offender is an exercise of judicial discretion which the sentencing judge is in the best position to perform.  Consequently, the appellate courts will accord considerable leeway to a trial judge’s assessment of the appropriate sentence before determining that this exercise by him of his sentencing discretion has miscarried.

29.  We have considered whether the sentence imposed on this applicant can be considered outside the range of sentence for an offence of money laundering of this level of seriousness and we are not persuaded it is.

30.  Any money laundering activity lasting as long as this offence lasted and involving the many tens of millions of dollars that this offence did, is a serious offence.  We are not persuaded that the sentence imposed on this applicant was anything but appropriate for the seriousness of his crime and the culpability of his conduct.

31.  But, this is not the central thrust of Mr Oderberg’s submissions on this appeal.  For Mr Oderberg argues that even if the sentence could not be said to be manifestly excessive for the circumstances of this offence, the applicant would, nevertheless, have a justifiable sense of grievance when he compares the sentence he has received for laundering approximately HK$78 million with the sentences imposed on offenders who have been convicted of laundering substantially more monies.  Here, he is referring to an anomaly that has arisen as a result of persons who have laundered hundreds of millions, and sometimes billions, of dollars, being prosecuted in the District Court where the jurisdictional sentencing limit is 7 years’ imprisonment.

32.  It is true that such cases exist.  They are the consequence of previous decisions of this Court which may have prompted the Director of Public Prosecutions to view the District Court as the appropriate venue for trial for most money laundering cases.  This was adverted to Stock VP in Boma where after referring to the case of HKSAR v Kam Susanto CACC 542/2003; unreported, 13 May 2005, which he identified as the possible source of the problem, he said at page 40, paragraph 29:

“Be that as it may, the comment by the Court seems to have had an influence which is unfortunate, because an effective seven‑year maximum for sums of that order leaves in practical terms very little sentencing leeway for much more usual cases involving several million dollars but serious nonetheless.”

He went on to note at paragraph 37 of his judgment that excluding the High Court as a forum for money laundering cases “brings distortions to justice”.

33.  To avoid such “distortions to justice”, Stock VP in Boma urged the Director of Public Prosecutions to “not feel constrained by prior judgments of this Court from bringing cases in the High Court where huge sums of money are involved or where the predicate offence is particularly serious.” [4]

34.  Because we were concerned whether such “distortions to justice” might still be occurring as a result of prosecutors electing, inappropriately, the District Court as the venue for trial we asked counsel for the respondent to inform us of what action the Director of Public Prosecutions had taken in response to the comments of Stock VP in Boma.

35.  In a letter written to the Court we are told that all counsel within the Prosecutions Division have been reminded of what Stock VP said in Boma and a Deputy Director of Public Prosecutions has been made responsible “for overseeing all advices recommending money laundering charges to ensure that the charges are properly laid before the appropriate venue and to ensure consistency in approach”.

36.  As a consequence of these measures having been taken an increasing number of money laundering cases are now being tried in the Court of First Instance.  We are satisfied that such “distortions to justice” as previously occurred as a result of the District Court inappropriately being chosen as the venue for trial was only in respect of a limited number of particularly prominent cases and now should be a thing of the past.

37.  But, the question remains for this applicant of whether the existence of these “distortions to justice”, glaring as they are in certain cases, justifiably causes him to be aggrieved at the severity of the sentence he has received or, expressed in another way, renders the otherwise appropriate sentence that was imposed on him, unjust.  In his eloquent plea on behalf of the applicant Mr Oderberg points to the confusion and the aggrieved feelings of the applicant, his family and those close to them when they compare the sentence imposed on him with the sentences imposed on those others who have laundered much more vast sums of money.

38.  The starting point to addressing Mr Oderberg’s argument is to remind ourselves that as an appellate court we are a court of error.  To succeed on appeal the applicant must demonstrate that the trial judge erred.  In this respect the comments of Kirby J in the Australian High Court decision of Markarian v The Queen (2005) 228 CLR 357 are particularly apposite.  At page 394, paragraphs 100-101 he said:

“100 … An explicit finding of error by appellate judges is not a mere technicality. It is the precondition to the authority which the appellate court enjoys under the law to disturb the conclusions of the trial judge, manifested in that judge’s orders.

101 What is involved in this rule is not simply professional respect for the trial judge, still less for a formula of words.  It is a salutary reminder to the appellate court of the advantages that the trial judge enjoys; the impossibility of expressing all of the considerations leading to an outcome in judicial reasons, and the special difficulty of doing so where the outcome involves (as sentencing does) discretionary and quasi-discretionary considerations of judgment.  To pause at the end of the analysis of criticism of the reasons of a trial judge, and to express clearly the appellate court’s satisfaction that error has been established, is a useful reminder to the appellate court that its function is different from that of the trial judge.”

39.  What then, is the error in the present case?  It seems to us that the complaint in the present case is, in essence, a disparity of sentence complaint involving offenders appearing before the courts on different occasions charged with a like offence arising out of criminal conduct completely unrelated to the applicant.  The error on which reliance is placed is not error in the applicant’s case but error occurring in other cases of disparity created as a consequence of an inappropriate prosecutorial election as to venue for trial or by leniency, perhaps even undue leniency, extended by other judges to other offenders in respect of totally unrelated criminal activity of the same kind. Can an error of this kind create a justifiable sense of grievance for the applicant?

40.  When disparity of sentence is the ground of appeal we note that in the High Court of Australia decision of Lowe v The Queen (1984) 154 CLR 606 Mason J expressed the view that the fact that the sentence is not a just sentence is a ground for appellate intervention notwithstanding that the injustice is generated by error arising in proceedings other than those of the appellant.  At page 613 he said:

“The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.” [5]

41.  These views were subsequently followed by the majority of the High Court in Green v The Queen (2011) 244 CLR 462 where French CJ, Crennan and Kiefel JJ said at page 475, paragraph 32:

“32 A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal’s discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error (88). It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself (89). Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed.”

42.  It is important to recognize that whether a disparity between sentences is an unjustifiable one, thereby resulting in an unjust sentence, does not fall to be determined by the subjective feelings of the offender whose sentence is under appeal.  As the majority said in Green at page 474, paragraph 31:

“31. … The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity …”

43.  In Hong Kong the objective test that has been applied is that expounded by Lawton LJ in Fawcett (1983) 5 Cr App R (S) 158 which he described at page 161 as:

“… would right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice?” [6]

44.  The argument in the present case seeks to extend disparity of sentence as a ground of appeal beyond co-offenders to a disparity in sentence between wholly unrelated offenders; here the applicant and other persons sentenced for the same type of criminal activity but in respect of completely unrelated crimes. In considering whether such an extension should be permitted it is helpful to have an understanding of the legal foundation of the parity principle.  This was explained by the majority in Green.  They said at page 473, paragraphs 28-29:

“28. … Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice” (75). It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner (76). As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances (77). [7]

29. … The consistency required by the parity principle is focused on the particular case. It applies to the punishment of “co-offenders”, albeit the limits of that term have not been defined with precision.” [8]

45.  As can be seen from this passage the parity principle is confined in its application to co-offenders.  Likewise, in Hong Kong where there is long line of authority that limits disparity of sentence as a ground of appeal to co-offenders sentenced differently by the same judge.[9] It has never been extended to offenders charged with the same offence arising out of completely unrelated criminal conduct.

46.  Nor, has it been so extended in England. In the English case of Large (1981) 3 Cr. App. R (S) 80 the Court of Appeal refused to entertain a submission that there was disparity of sentencing between the sentence imposed on the appellant and sentences imposed by the same judge on other offenders for the same offence but who were participants in completely unrelated crimes.  At page 82 the Court said:

“This Court declines to entertain such a submission. By reason of the appeals which consistently come before it the Court is aware of the general level of sentencing throughout the country. If, when individual sentences are being considered, it was permissible for counsel to analyse sentences passed by other judges on other occasions for other offences the work of this Court would come to a standstill. It would occupy the time of the Court to an inordinate extent and would do no more than draw its attention to the sentencing practice of a particular judge on a particular occasion in circumstances quite different from those with which the Court is immediately concerned. We will consider the matter of disparity when it arises in respect of participants in the same offence who have received different sentences for the parts that they played in the offence. Where it appears that for similar involvement in the offence the offenders have received very different sentences it is a warning sign that something may possibly have gone wrong with one or more of the sentences.”

47.  The New South Wales Supreme Court adopted a similar view in Kardoulias v The Queen (2005) 159 A Crim R 252.  After accepting that what in Australia is referred to as the parity principle applies to co‑offenders, the Court of Criminal Appeal said at page 274, paragraph 106:

“However, the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders who are not co-offenders simply because the two offenders may have similar characteristics and may have committed similar crimes.”

48.  There is nothing in the judgment of the High Court in Green to suggest that the parity principle can inure to the benefit of persons other than co-offenders; nor is there in English or in Hong Kong case law.  All three jurisdictions speak with one voice.  The only occasion that relativity to other offenders’ sentences will create a justified sense of grievance is when the relativity concerns sentences imposed on persons who participated in the same offence as the offender.  That is not, of course, the position here.

49.  Outside of this situation it is for each applicant to demonstrate error or excessiveness in his own case.  A sentence otherwise appropriate for the level of that offender’s culpability does not become unjust simply by reference to an erroneous or unduly lenient sentence imposed on another offender in an unrelated crime.

50.  That being so, it cannot be said that other erroneous or unduly lenient sentences imposed in unconnected cases involving the same offence, provide an offender receiving a heavier sentence than those imposed in these other unconnected cases, with a justified sense of injustice.  It does not seem to us that it matters what the reason is for the alleged disparity between the cases; whether it be one judge being more lenient than another or the prosecutor selecting the wrong venue for trial.  Whatever the reason, the principle remains the same – the parity principle only applies to co-offenders.

51.  We do not doubt that this applicant and his family may not understand why others involved in more serious money laundering activity have been sentenced apparently more leniently but, for the reasons we have given, this does not entitle this applicant to harbour a justified sense of injustice.

Conclusion

52.  For these reasons we dismiss the application for leave to appeal against sentence.

[1] Page 17 M-T of the Appeal Bundle.

[2] Page 17 S-T of the Appeal Bundle.

[3] HKSAR v Boma [2012] 2 HKLRD 33 at 42-44.

[4] HKSAR v Boma [2012] 2 HKLRD 33 at 42, paragraph 37.  This statement by Stock VP was simply the culmination of experiences by the Court of Appeal where it had observed inappropriate cases being prosecuted in the District Court.  See for example the decision of this Court in Secretary for Justice v Herzberg [2010] 1 HKLRD 502.

[5] Gibbs CJ was of the same view saying at page 610:

“It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.”

[6] This decision was referred to by the Court of Appeal in HKSAR v Hui Sze Ping CACC 426/2002; unreported, 26 February 2003 where, in giving the judgment of the Court Gall J said that the principle set out in Fawcett was in no way inconsistent with the decision in HKSAR v Leung Yiu Ming & Anor [2000] 1 HKLRD 247.  Fawcett was applied by the Court of Appeal in HKSAR v Wong King Wai [2008] 3 HKLRD 293 at 305, paragraph 43 and HKSAR v Wong Kam [2013] 1 HKLRD 39 at 51, paragraph 44.

[7] The quotations contained in the first paragraph are from the judgment of Mason J in Lowe v The Queen (1984) 154 CLR 606 where at pages 610-611 he said:

“Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice.  It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”

[8] The qualification contained in the last sentence was not intended to allow for extension of the principle beyond co-offenders but rather to allow for the possibility that co-offenders may sometimes face different charges arising from their criminal activity and the particular role they played in it.

[9] See R v So Hung-lee & Anor [1986] HKLR 1049 which has been consistently applied by the Court of Appeal, for a recent example of which see HKSAR v Cheng Sau Yuk [2012] 5 HKLRD 415.