HKSAR v. TAI CHI WAH AND ANOTHER

CACC 497/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 497 OF 2006

(ON APPEAL FROM HCCC NO. 39 of 2005)

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JUDGMENT

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

1.  At the conclusion of the hearing of the appeal against conviction by the first applicant and conviction and sentence by the second applicant we reserved our Judgment.  This we now deliver.

2.  The two applicants were tried by Nguyen J. and a jury on eight counts: Counts 1 to 3 alleged a conspiracy between them to defraud, contrary to common law, whilst Counts 4 to 8 alleged instances of furnishing false information contrary to section 19(1)(b) of the Theft Ordinance, Cap 210.  The first applicant was convicted on all counts whilst the second applicant was convicted on Counts 1 to 3 but the jury was unable to reach a verdict on Counts 4 to 8 which were left on the court file.  Each applicant was sentenced to serve a period of four years imprisonment in respect of each of Counts 1 to 3, all to be served concurrently with one another, whilst the first applicant was ordered to serve a period of one year imprisonment in respect of each of Counts 4 to 8, all to be served concurrently with one another but consecutively to the sentences on Counts 1 to 3.

3.  The first applicant seeks leave to appeal conviction whilst the second applicant seeks leave to appeal both conviction and sentence.

4.  Whether the decision to sit what have become known as “Carrian hours” was a factor that contributed to the length of the trial is of no consequence: the nine jury members were required to sit through 45 court sitting days of evidence, speeches, summing up and deliberations.  Hardly surprisingly, those deliberations extended overnight.  Whilst it is, of course, the prerogative of the Department of Justice to select the venue for a trial, the venue selected should be appropriate.  This court, differently constituted, has said on a number of occasions (see, by way of one example, HKSAR v KWOK Chi-wai and Another CACC12/2005, unreported) that the Court of First Instance is not the appropriate venue for trials of this nature where it is apparent from the outset, as it was in this case, that any sentence will not exceed the jurisdiction of the District Court. 

The background

5.  Goldface Holdings Ltd is a company listed on the Hong Kong Stock Exchange.  Its wholly-owned subsidiaries include Goldface Enterprises Ltd, Goldface Finance Ltd and True Gold Investments Ltd of which three companies the two applicants were directors.  True Gold was incorporated specifically to develop a residential project called "Villa Pinada" on a site in Tuen Mun.  That project commenced in late 1999. 

6.  It is clear that some works were done on the site at an early stage although the nature and extent of those works as well as the identity of the entities which carried them out was a matter in issue at trial. Those works were funded by way of bridging finance. 

7.  Apart from the bridging finance, the development itself was financed from two sources - a bank loan and the sale off plan of the proposed units.

8.  True Gold obtained, in April 2000, a syndicated loan of some $385 million from a consortium of banks led by a bank which subsequently merged with the Bank of China.  That loan comprised four tranches which eventually were $50 million for refinancing the bridging loan, $67.5 million to pay a land premium, $180 million for construction costs and $87.5 million to pay interest, fees to banks and for the purchase of white goods which were to be installed in the units constructed.  To secure that loan True Gold executed a building mortgage over the property in favour of the Bank of China.

9.  The Lands Department of the Hong Kong government operated what it styled a Consent Scheme in terms of which property developers were able to obtain permission, subject to comprehensive stipulations, to sell units which were under construction but uncompleted.  Amongst the facets of the Consent Scheme relevant to these proceedings were, first, that a standard form of sale and purchase agreement in respect of the unconstructed units need be used; second, that a developer, in this context True Gold, was required to nominate a firm or firms of solicitors to act as stakeholders for the moneys paid by the purchasers; third, that those moneys could only be paid out by the stakeholder to the developer against a certificate signed by an Authorised Person, nominated by the developer, and then only in respect of certain defined liabilities.

10.  True Gold appointed four firms of solicitors to act as stakeholders.  Three of those firms figure in the first three counts, Emersons, Ong & Chung and Patrick Leong & Man respectively, as being one of the entities against whom the conspiracy was directed.  There was no allegation that any moneys were obtained wrongfully from the fourth firm.

11.  Although the Bank of China was told of the appointment of three of the firms as stakeholders, it was not told of the appointment of Emersons. It was from that firm that the vast majority of the moneys were obtained by True Gold. 

12.  In addition to being a director of True Gold, the first applicant was a partner in a firm of architects, Wong and Tai Associates.  He was appointed the Authorised Person in respect of this development.

13.  Payment from the purchase price held by the stakeholder was governed by clause 26 of the standard agreement of purchase and sale which provided, inter alia:

(1)        Subject as hereinafter provided, any part of the purchase price paid by the Purchaser to [a stakeholder] shall be held by them as stakeholders pending completion of the sale and purchase and shall be applied and released in the following manner only -

(a)	first, towards payment of the Construction Cost to the Vendor from time to time in such amount or amounts as shall be certified by the Authorised Person as having been expended or having become payable on the constructionof the Development;
(b)	second, towards payment of funds drawn under the Building Mortgage (if any) for payment of the Construction Cost and interest thereon;
(c)	…

[Emphasis supplied]

14.  "Construction cost" was defined in the agreement:

(i)	any amount incurred or paid to any contractors or suppliers for work done, or materials or goods supplied, in connection with the construction of the Development and in rendering the Development fit to qualify for the issue of the Occupation Permit (and of the Certificate of Compliance); and
(ii)	any other amounts (including professional fees) which (in the opinion of the Authorised Person) need to be incurred by the Vendor in order to complete the construction of the Development in accordance with the building plans and in rendering the development fit to qualify for the issue of the Occupation Permit (and the Certificate of Compliance)

15.  It was common cause that the development proceeded, was completed - albeit possibly behind schedule - and that purchasers received the units which they had purchased. 

Who did the work?

16.  In September 2000 True Gold gave notice of the appointment of CWF Piling and Civil Engineering Ltd as the contractor to undertake the piling work.  It had taken over the site the preceding month.  It finished the piling work in September 2001.  In July 2001 True Gold gave notice of the appointment of China Overseas Building Construction Ltd as the contractor which would undertake the superstructure, site formation, drainage and foundation footing work.  True Gold entered into three contracts with China Overseas Building Construction Ltd, which started work in June 2001 and completed in June 2002. 

17.  It was not in dispute that these two companies had performed a considerable amount of work on the site.  It was not in dispute, either, that a small number of other companies had also undertaken work on the development, albeit largely towards the end of the construction period.

18.  What was hotly disputed was whether five other companies had also carried out work on the development.  Those five companies, in varying combinations, are referred to in Counts 4 to 8 and were Gold Falcon Engineering Ltd (which also appears in Counts 1 to 3), Good Top Engineering Ltd, Well Harvest Engineering Ltd, Universal Electrical Appliances Co Ltd and Special Rich Cabinet Works Ltd, to which we shall refer as "the disputed companies".   The prosecution also contended that certain amounts claimed by companies which it acknowledged had performed work had been inflated.

19.  The first applicant gave evidence.  His position was to the contrary, that each of the five disputed companies had carried out work as a result of which moneys had become payable to each and that there had been no inflation in respect of other contractors.  But it was his case, too, that work for which claims had been made had been done prior to the appointment of CWF or China Overseas Building Construction which, if true, would tend to explain why representatives of those companies as well as the quantity surveyors appointed to the development had testified either that they had never heard of the disputed companies or that the disputed companies had not been on the site.

20.  The second applicant, who elected not to give evidence, was happy to go along with the first applicant's approach, the basis of his defence being that his role in True Gold was merely that of an employee with no knowledge of what was happening on the site which he had never visited, no knowledge of what construction was being carried out and no knowledge of the falsity of any documents: he simply forwarded documents to the stakeholders and signed company documents as required of him.  He was, it was contended, a director in title only.

What the accused did

21.  Counts 1 to 3 related to moneys obtained by True Gold from the stakeholders accounts: Counts 4 to 8 related to moneys obtained from the Bank of China as drawdowns from the loan.  The acts which gave rise to the two groups of charges may be discerned by looking at one set of Particulars of Offence from one count in each group, albeit that the individual particulars in each count vary. 

22.  In respect of the conspiracy charges the particulars of Count 1 read:

TAI Chi-wah and LIM Hau-chun, between about the 9th day of November 2001 and the 13th day of March 2003, in Hong Kong, conspired together, to defraud Paul Daniel Emerson of Emerson's, Solicitors, (the "said firm of solicitors”) and/or other persons acting on behalf of the said firm of solicitors and/or such other persons who might have an interest in the funds in the stakeholder’s account maintained by the said firm of solicitors with the Bank of China (Hong Kong) Ltd (the "said stakeholders account“), by dishonestly

(a)	creating false certificates of payment purporting to certify that construction work in connection with the construction of the residential project "Villa Pinada"... were completed by Gold Falcon Engineering Ltd;
(b)	creating false certificates of payment purporting to certify that the "Sales office and show flat interior fitting out" and "Hoarding erection work" of the residential project "Villa Pinada"... were completed by King Fung Engineering Company;
(c)	submitting the said false certificates of payment to the said firm of solicitors; and
(d)	causing the said firm of solicitors to release to True Gold Investments Ltd sums of money in the said stakeholder’s account, being moneys deposited by purchasers of uncompleted units of the said residential project.

23.  It was not disputed that the first applicant had signed a series of the certificates contemplated by clause 26 of the standard agreement of purchase and sale in his capacity as Authorised Person in order to secure the release of funds to True Gold from the stakeholders.  It was not disputed that each of those certificates was forwarded to the respective stakeholder under cover of an instruction, each of which was signed by the second applicant, to transfer for the credit of True Gold.

24.  In respect of Count 1 there were 51 such certificates and 50 instructions to transfer funds based on which Emerson’s released some $360 million: in respect of each of Counts 2 and 3 there were five certificates and nine instructions on which Ong & Chung released some $64 million and Patrick Leong & Man released some $65 million respectively.  All these moneys were paid either to True Gold or to the Bank of China as part repayment of the loan.

25.  The prosecution's case was that each of the certificates signed by the first applicant was false in that the certificate represented that all of the construction work on the development, to the value of the amount claimed in each certificate, had been done by, in each instance, Gold Falcon, and in respect of Count 1 also by King Fung, when, to the knowledge of the applicants, that was untrue.  That, the prosecution said, was the effect of each certificate signed by the first applicant which read, in part,

We hereby certify that the sum of Hong Kong dollars 7 million only being the 45th payment for the above-mentioned contract executed by Gold Falcon Engineering Ltd

with only the amounts, the payment number and, in the case of Count 1 the identity of the companies which executed the contract, varying from certificate to certificate.

26.  In regard to Count 1 the prosecution's position regarding King Fung was that it had neither executed work to the certified value (the claim had been inflated) nor was it a main contractor.  In respect of each count the prosecution alleged that Gold Falcon was not a genuine contractor.

27.  The first applicant, in his evidence, accepted that the company named in each certificate had not necessarily itself executed all of the work in respect of which payment was claimed but asserted that work actually had been executed and that work had been executed, whether wholly or in part, by a number of companies including CWF, China Overseas Building Construction and one or more or all of the disputed companies. 

28.  It was his evidence that on his interpretation of clause 26 of the standard agreement of purchase and sale he was not required to certify the identity of the contractor but simply the amount payable; there had been numerous contractors; had he issued a certificate in respect of the amount due to each individual contractor this would have involved the issue of hundreds of individual certificates; with the consent of Gold Falcon and King Fung he had "consolidated" all of the amounts payable to the various contractors under a single umbrella, effectively as a matter of convenience or, as it was expressed, in a representative capacity.

29.  It was his evidence that the total construction cost of the development project substantially exceeded the amounts which had been withdrawn from the stakeholders’ accounts and that the amount withdrawn had been used to discharge genuine expenses incurred in the construction cost.  The prosecution was not in a position to dispute that the construction costs exceeded the amounts withdrawn from the stakeholders’ accounts but challenged the accuracy of the actual figures asserted by the first applicant.

30.  What the first applicant was saying in this connection unfortunately became mislabelled in the proceedings before us as constituting a defence of "claim of right": all he was saying was that True Gold was entitled to claim payment of the moneys and that he was not being dishonest in claiming in this manner. 

31.  In respect of the charges of furnishing false information the particulars of Count 4 read:

TAI Chi-wah and LIM Hau-chun, on a day unknown between the 31^st day of March 2001 and the 10^th day of May 2001, in Hong Kong, dishonestly with a view to gain for themselves or another or with intent to cause loss to another, in furnishing information to Messrs. Deloitte Touche Tohmatsu (“Deloitte”), certified public accountants, for the purposes of preparing the “Reports and financial statements of True Gold Investments Limited (“True Gold”) for the year ended 31 March 2001”, produced to Deloitte a document for an accounting purpose or made use of such a document, namely a “Trial Balance as at 31 March 2001” of True Gold, which to their knowledge was misleading, false or deceptive in a material particular in that it purported to show that as at the 31^st day of March 2001 True Gold had incurred costs in respect of residential project “Villa Pinada”, namely,

(i)         $11,003,100.94 …in respect of work allegedly done by Times Geotechnical Engineering Limited;

(ii)        $18,000,000.00…in respect of work allegedly done by Goodtop Engineering Limited;

            and

(iii)       $61,525,160.00 … in respect of work allegedly done by Well Harvest Engineering Limited.

32.   The prosecution did not dispute that Times Geotechnical Engineering Ltd had carried out work on the site but contended that the amount claimed had been inflated to the order of $10 million.  The first applicant explained that the $10 million payment had in fact been made to Times Geotechnical Engineering Ltd which had paid on the moneys which were, in reality, a tor dei fee: Times Geotechnical Engineering Ltd was simply a conduit.

33.  The prosecution did challenge, however, the contracts concluded between True Gold and the disputed companies contending that they were mere shams that existed to enable True Gold to draw down funds from the Bank of China under tranches C and D of the loan.  The data contained in the certificates submitted to the Bank of China then found its way into True Gold’s annual financial statements, having been supplied to its auditors, Deloitte Touche Tohmatsu, through internal accounting documents of True Gold in the form of trial balance sheets and/or schedules relating to capital commitment costs.  It is the submission of those documents to Deloitte which gives rise to Counts 4 to 8: no charges arise from the submission of the certificates to the Bank of China.

34.  The first applicant 's defence in respect of each of these charges was that work to the value certified had been executed and that the contracts with the disputed companies were genuine. There was no suggestion that the documents which contained the information upon which Deloitte relied for its preparation of True Gold annual accounts were not documents for an accounting purpose.

The main issue at trial

35.  It was accepted, correctly, by counsel at trial and explained by the judge to the jury that if they entertained a doubt as to the guilt of either applicant in respect of Counts 1 to 3 both applicants were to be acquitted.

36.  The most prominent issue in regard to all of the counts was simply whether the work as certified had been done: in Counts 1 to 3 it was whether work had been done at all by Gold Falcon and whether work had been done at all or to the extent claimed by King Fung whilst in respect of Counts 4 to 8 it was whether the documents tendered to Deloitte were misleading, false or deceptive in regard to whether or not the work had been executed (by the entities reflected in those documents other than Times Geotechnical Engineering Co Ltd) or to the extent claimed by Times Geotechnical Engineering Co Ltd.

37.  In short, it was the prosecution’s case, put simply, that the work had not been done – either not done at all by the disputed companies which, in support of its contention that the work had not been done at all, it contended were shams or not done to the extent claimed in respect of King Fung and Times Geotechnical Engineering Co Ltd.   The first applicant contended that it had. 

38.  Other issues remained: in respect of Counts 1 to 3 whether there was an agreement between the applicants; whether intent to cause or appreciation of the risk of economic loss had been proved; whether dishonesty had been proved; and in respect of Counts 4 to 8 whether there had been a connection between the internal accounting documents and the drawdown from the loan.  This latter aspect ignored the particulars of the offence as, as noted in 33 above, no charges arose from the submission of the certificates to the Bank of China.

39.  It is understandable, in the light of the conflicting stances, that the determination of whether or not the work had been executed formed the central issue at trial. That certainly was the basis upon which the prosecution was opened, to which evidence and cross-examination was focused, to which the prosecutor and counsel paid particular attention in their closing speeches and which the judge covered in greatest detail in his summing up. No criticism is made of the manner in or extent to which the Judge summed up the evidence for either side on this issue, nor could any sensibly have been made.

40.  In a succinct observation to the jury once he had explained the law to them, the judge put it in these terms:

Now, members of the jury, coming to the facts of the case, you will have understood of course by now that what the prosecution says is that apart from King Fung and Times Geotechnical, both of which did do some work at the site, apart from those two companies, the prosecution says the other five companies mentioned in the various documents, the certificates of payment, and in the trial balance and capital commitment statements, were all companies which did not do any work on the site.  And they say, even if they did do any work at the site, the work that they did was not to the extent as certified in the certificate of payment.

41.  It is clear that the parties regarded this as the fundamental issue.  In our view, rightly so.  If the jury found that the work had been or may have been executed that would be an end to the matter in respect of Counts 4 to 8 and the applicants would be entitled to be acquitted whilst, in respect of Counts 1 to 3, the jury would then need to consider the remaining issues but particularly, the issue of dishonesty and the effect of the first applicant’s belief of entitlement to claim payments.

42.  Conversely, if the jury found that no work had been executed then that would be an end to the matter in respect of Counts 4 to 8 as the documents would plainly be misleading, false or deceptive.  In respect of Counts 1 to 3 the jury would need to consider the remaining issues but would not need to consider the issue of the first applicant’s belief as there would have been no amounts to be certified in a representative capacity or, come to that, at all:  in those circumstances dishonesty, in Ghosh terms, realistically would have been manifest. 

43.  It is against this background which the judge's summing up must be viewed for it is criticism of that summing up which forms the basis of the appeals against conviction.

THE APPEALS AGAINST CONVICTION

The grounds of appeal

44.  The first applicant relies upon six grounds of appeal which may be summarised as follows:

Ground 1:    in respect of Counts 1 to 3 there was a failure to direct the jury to reach a required majority in respect of the identity of the persons defrauded;

Ground 2:    in respect of Counts 1 to 3 the judge erred in directing the jury that it was open for them to convict on the basis of defrauding the named solicitors or employees of a solicitors firm as this would have amounted to using dishonest means to induce a person to act contrary to a private duty;

Ground 3:    there was a failure to direct the jury to reach a required majority that each applicant had conspired to carry out both of the pleaded objectives set out in particulars (a) and (b) alternatively to reach a required majority in respect of either or both particulars;

Ground 4:    in respect of Counts 4 to 8 there was a failure to direct the jury to reach a required majority in respect of one or more of the pleaded elements of falsity;

Ground 5:    in respect of Counts 1 to 3 the judge wrongly directed the jury on the issues which they need to decide; and

Ground 6:    the judge failed to adequately identify the real issues in the case.

45.  The second applicant also relies on six grounds of appeal five of which are the same as Grounds 1, 2, 3, 5 and 6 relied upon by the first applicant, the sixth ground being effectively an elaboration on Ground 6 of the first applicant’s grounds of appeal submitting that there was no proof of prejudice to economic interests.  It will be convenient to deal with this expanded ground when considering Ground 6 of the first applicant.

Ground 1 - both applicants : Alternative limb of Ground 3 - both applicants : Ground 4 - first applicant

46.  These grounds may conveniently be taken together, the principles relied upon being common to each.  The arguments in each instance centre around the decision in R v Brown [1984] 79 Cr App R 115.  In determining the applicability of Brown to the present circumstances it is necessary briefly to relate its facts.  Relevant passages in that judgment are as follows:

[p 116] The prosecution case against the appellant was that he fraudulently induced four persons to enter into agreements for acquiring shares in a company and fraudulently attempted to induce another to do so, by making statements all of which he knew to be misleading.  Each count contained particulars of a number of different statements relied on by the prosecution as constituting the inducement.

[p 117] The jury had asked the judge two questions.  He dealt with these in his summing up.  He said ".... the second question was: "If the individual members of the jury find him guilty of different parts of the count, is he guilty on the whole count, and is a verdict of guilty unanimous?”  Members of the jury, the answer to that is this: what you have to be satisfied of in relation to each of the counts is that the defendant dishonestly made the statements and by making them induced the victim concerned to act in the way set out in the count."

He then gave an example... and continued: "... So if you find some of you are satisfied that representation A was made out, some of you are not satisfied about that but are satisfied that representation B was made out, then it does not matter, provided that you are all satisfied that there was the dishonest inducement made..."

It is said that in answering the second question the learned judge misdirected the jury.  It is said that the direction made it possible for the jury to convict without there being unanimity upon any particular statement relied upon as constituting the inducement...

Counsel for the appellant was correct in his submission that it is a fundamental principle that in arriving at the verdict the jury must be agreed that every single ingredient necessary to constitute the offence has been established.  The false statement is an essential ingredient.

47.  The principles that then resulted are expressed in these terms:

In a case such as that with which we are now dealing, the following principles apply: 1.  Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).  2.  However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury.  The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement on which they are agreed was an inducement as alleged.

48.  The applicants contend that by failing to give a direction in accordance with these principles different members of the jury, in respect of Counts 1 to 3, may have been satisfied that different persons or categories of persons had been defrauded; in respect of Count 1, may have been satisfied in respect of different particulars; and in respect of Counts 4 to 8, may have been satisfied in respect of different particulars.  In such an event, there would have been a lack of certainty in respect of an essential element of the offence.

49.  In R v Hancock and Another [1996] 2 Cr. App. R 556 at 557 the observation was made about Brown that:

Since that case there have been a number of decisions of this Court, and judging by the number of appeals where reliance is placed upon it, it would seem that it is a fertile source of difficulty.

an observation no less appropriate in this jurisdiction.

50.  In Hancock the court reviewed a number of those decisions making particular reference to R v More (1988) 86 Cr. App. R. 234 where the Court of Appeal observed:

It seems to us, however, that it will only be necessary to give a direction on the lines set out in Brown in the comparatively rare cases where it emerges at some stage in the course of the trial, or as a result of the question asked by the jury, that there is a risk of a disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved.  ... Such a direction will also be necessary where there is a discernible risk in, for example, a case involving obtaining property by deception by a number of representations, that the jury might fail to be unanimous as to the making, falsity and efficacy of at least one of the representations.  But, in our judgment, it is important that the scope of the ruling in Brown should not be exaggerated...

[Emphasis supplied]

51.  In More (although not quoted in Hancock) the court continued at p. 245, in reference to R v Agbim [1979] Crim.L.R. 171, which had been distinguished in Brown:

We have no doubt that the jury had been given a direction as to the need for unanimity, and it is clear that no one, including counsel on each side,  thought that there was any danger of inconsistency.  On the particular facts of that case they were no doubt right.

In Agbim the Court also emphasised that though, if the verdict is to be unanimous, the whole jury has to be satisfied that the prosecution had proved the charge or charges, each member does not have to reach his conclusion by precisely the same route.  It is important that this point should be kept in mind when considering the effect of the decision in Brown.

52.  In R v Price [1991] Crim.L.R. 465 at 466/7 the Court of Appeal noted that in the particulars of the offence:

…each paragraph alleged alternative representations each of which would support the offence charged...  there was no way of telling on which, if any, of the particulars the jury were unanimous.  The judge had said that the Crown need only prove one of the allegations of deception.  He was not obliged to direct the jury that they must all be sure of the same false representation.

…

In the present case, the judge had ended the summing up by saying "the verdicts which you are going to discuss and decide are going to be the verdicts of you all, that is unanimous verdicts."  When the judge said that the Crown need only prove one of the allegations of deception, the jury must be taken to have understood him to mean that the Crown need only prove one of those allegations so as to make them all sure of that allegation.  It did not need to be spelled out in greater detail.  There was no discernible risk of misunderstanding; indeed the real risk would be, if the appeal is allowed, that summings up would in future become impossibly overloaded with directions on this and warnings on that, with an ever widening scope for appeals.

[Emphasis supplied]

53.  In R v Mitchell [1994] Crim.L.R. 66 the appeal was allowed for want of a Brown direction but the “…acts relied on by the prosecution were very disparate, both as to time and as to their nature.  It was not a case alleging dishonesty or one in which the particulars alleged stood or fell together."  The Court described the risk or danger of disagreement as needing to be "realistic" in this sense:

... such a direction will be necessary only in comparatively rare cases.  In the great majority of cases, particularly cases alleging dishonesty and cases where the allegations stand or fall together, such a direction will not be necessary... (iii) however, in an appropriate case where there was a realistic danger that the jury might not appreciate that they must all be agreed on the particular ingredient on which they rely to find their verdict of guilty on the count, and might return a verdict of guilty as charged on the basis that some of them found one ingredient proved and others found another ingredient proved... a direction should be given that they must be unanimous as to the proof of that ingredient.

54.  The qualifications, if they may be described as such, which Mitchell imposed upon the principles adumbrated in Brown have been adopted in this jurisdiction: see HKSAR v TSE Koon Kit CACC388/1997; TING James Henry v HKSAR CACC318/2005.

55.  In the instant matter there was no suggestion by any of the very experienced counsel involved in the trial that a Brown direction was necessary.  That is not definitive of the matter but it is an indicator that, despite having been present throughout the trial, one another's speeches and the summing up, neither counsel nor the judge saw there being any risk, let alone a discernible risk, of disagreement. (Hancock at p. 560C)

56.  At the conclusion of the judge's summing up the prosecutor and counsel for both applicants were afforded, and took, the opportunity of raising matters which arose from the summing up.  Neither, directly or indirectly, raised the issue of a Brown direction.

57.  That is readily understandable in the context of this matter given that the main thrust of the prosecution and the defence was simply whether the work had been done or done to the extent claimed.  In the circumstances we have no doubt that the jury would have approached the issue, and correctly so, on an all or nothing basis: either the work had been done or it had not.  “Summings up must necessarily be based not only on the evidence produced at trial but on the manner in which the trial is run, this both by the prosecution and defence”.  (R v WAI Yu Tsang CACC444/1988 unreported at p. 7)

58.  There is another aspect.  Shortly before 10 p.m., almost 9 hours after the jury had retired, a question was sent to the judge which was in these terms:

If D1 or D2 dishonestly applied other evidence aparted from (a) or (b), causing the said firm of solicitors to release to TGI sums of money in the said stakeholders account, being moneys deposited by purchasers of uncompleted units of the said residential project, we wonder that if we can consider (d) to make verdict of 1st Count to 3rd Count

59.  Just what was meant by this question was, understandably, a matter of some discussion between counsel and the judge the following morning.  It is clear that the prosecutor, counsel and the judge were well aware that it was sufficient for the jury to be satisfied, on count one, of either particular (a) or particular (b) and not necessarily of both. This is because particulars (a) and (b) set out the two facets of the overall fraud which the prosecution had to prove.  Particulars (c) and (d) were simply expressions of overt acts common to each, necessarily following on from either or both of particulars (a) and (b).  The real issue therefore was whether the prosecution had proven either or both of the allegations contained in (a) or (b).  This appears from the following exchange:

Mr Wong:	My lord, in respect of the written proposed answer to Question 1 prepared by the defence, if your lordship look at 3, that mention of the jury being not sure whether D1 and 2 agreed on either (a) or (b).  Now, (a) and (b) of course talk about the two contractors... And as I understand it the jury should only be satisfied of one and that would be...
Court:	Well, that's what it says, on either (a) or (b)
Mr Wong:	"If not sure either (a) or (b), acquit both" I would have thought, my lord, if they are satisfied with one but not the other they can still convict.
Mr Plowman:	Both defendants
Court:	I think the proposed answer has in mind the concept that both of them must have agreed rather than just one, is that right, Mr Plowman?
Mr Plowman:	And the added fact that it has to be (a) and (b) not (c) and (d).
Court:	Yes, but what Mr Wong is saying his already in the answer: either (a) or (b)
Mr Wong:	That's correct, my lord

60.  In the course of answering the jury's question the judge said:

So in relation to Count 1, if you are not sure whether the 1^st defendant and the 2^nd defendant agreed on either particular (a) or particular (b), then you will have to acquit both of them.  But provided you are sure beyond a reasonable doubt that both of them did agree on either particular (a) or particular (b), that would be sufficient and that is what I said to you yesterday that in Count 1, of the two particulars (a) and (b), the prosecution need prove to you only one of those particulars.

61.  The passage of the summing up to which the judge was referring by saying "yesterday" would have been that passage in which he was explaining the offence of conspiracy and just what it was the prosecution need prove:

In these three conspiracies, members of the jury, in the 1st count there are four particulars, which have been set out, and in the 2nd and 3rd counts, there are indeed three particulars, which have been set out.  Now, particular (c), the submission of the certificates of payment to the firm of solicitors is in fact admitted.  And particular (d), that because of the submission of the certificate for payment, the solicitors in fact did release the amount stated in the certificate, that also has not been disputed.

It is in relation to the first two particulars that you have to make a decision on... Now, in relation to those two particulars, members of the jury, the law is that the prosecution need not prove that both particulars are true.  In other words, they need not prove beyond a reasonable doubt both particulars.  If they succeed in proving one of those two particulars that will be sufficient for the prosecution to say that a particular defendant can be found guilty.

62.  That passage must be seen in the light of what it was the judge had said regarding the burden and standard of proof and of the number of jury members who must be agreed in order to return a verdict.  No complaint is made concerning those directions.  They were unexceptionable, standard directions which do not need repetition.

63.  Further, it seems clear to us, from the terms of the question asked, that the jury was under no misapprehension in respect of Count 1 that it had to reach agreement on at least either particular (a) or (b).

64.  Insofar as the complaint extends to the issue of who it was the jury may have found had been defrauded, the judge made it quite clear in his summing up that they need only be agreed on one or two and not all three categories.  Once again this passage must be read in the context of what the judge said regarding the burden and standard of proof and the number of the jury members who need be agreed.  He said:

Now, you have noticed that the charge says "defraud the solicitor and/or other persons acting on behalf of the solicitors" which the staff "and/or such other persons who might have an interest in funds in the stakeholders account".  So the prosecution need not prove that all the persons were defrauded, the solicitor, the staff and the four categories of persons.  Any one of those three alleged victims can be defrauded, and if you find that only one or two, but not all three were defrauded, that is sufficient for you to bring in a verdict of guilty, if you are satisfied of other matters beyond a reasonable doubt.

[Emphasis supplied]

65.  In the circumstances we are satisfied that in respect of none of the counts was the judge required to give a Brown direction on the facts of this case; in respect of Count 1 it was clear that the jury appreciated the necessity for them to be in agreement on at least one of the particulars; there was no risk, let alone a discernible risk, that they would not have appreciated the position to be the same in respect of Counts 4 to 8.  Consequently these grounds fail.

Ground 2 – both applicants

66.  The Court of Final Appeal in MO Yuk Ping v HKSAR [2007] 3 HKLRD 750, in finding that the offence of conspiracy to defraud does not offend the principle of legal certainty, expressed the view that a strong body of authority exists to support the proposition that conspiracy to defraud extends to causing non-economic loss or prejudicing non-economic interests but left that question open.  However, concerning its application to the use of dishonest means to induce a person to act contrary to his private duty the Court said:

54.  We have not been referred to any authority which supports the application of the offence to a situation in which the agreement is to use dishonest means to induce a person to act contrary to his private duty.  Neither principle nor policy provides support for such an application.  The proposition, if accepted, could open up conspiracy to many cases of breach of contract rather than leave conspiracy in its application to contractual relationships confined to the category of economic loss and prejudice to economic interests.

67.  The applicants assert that by indicating to the jury that it was open to it to convict on the basis that they defrauded the named solicitors and/or employees of the solicitors firms he erred in that, in law, such conduct could not amount to an offence in the light of the decision set out above.

68.  This submission may be dealt with shortly.  We shall accept, for the benefit of the applicants, that their conduct did result in a breach of the solicitor’s private duty.  However, that breach was but one consequence of their conduct, coincidental with and in addition to putting at risk their economic interests.  That their conduct may have had the added consequence of leading to a breach of their private duty does not derogate from any risk to which their economic interests were exposed by that same conduct.

69.  Importantly, it was never suggested to the jury that simply causing the solicitors acting as stakeholders to act contrary to their duties in that regard was sufficient to establish an agreement to defraud.  Rather, the jury were directed quite plainly that the prosecution to establish an agreement to defraud required to establish an intent on the part of the conspirators to cause economic loss.  The judge directed the jury in this regard as follows:

What is a conspiracy to defraud, members of the jury?  A conspiracy to defraud is conspiracy where the intention is to act with deliberate dishonesty to the prejudice of another person's proprietary rights.  In other words, rights to property.  It is fraud if it is proved that there was dishonest taking of a risk by the defendants, which they had no right to take and which, to the knowledge of the defendants would cause detriment, which is harm, or prejudice to another person 's economic or proprietary rights.  It does not matter whether loss is caused in fact or not. 

The essence of conspiracy to defraud lies in the dishonest subjecting of another person's property to unwarranted pecuniary or economic risk by the conspirators and knowingly they take this risk when there was no right to take it.  Dishonesty is an ingredient of the offence and it is also an ingredient in the remaining charges of furnishing false information.

and later

The second element is that there was an intention in the mind of the defendant, whose case you are considering, to carry out the unlawful purpose.  That is, to defraud the firm of solicitors and/or the persons mentioned above by prejudicing or risking, causing prejudice to the rights of the firm of solicitors and/or the persons mentioned knowing that he has no right to do so.  So there must be an intention in mind of a particular defendant to defraud a particular victim by prejudicing or risking, causing prejudice, to the rights of that particular victim knowing that he has no right to do so.

70.  It is also necessary to bear in mind the objectives of the conspiracy a matter to which we refer in §72 to 74, infra.  At this stage all we need say is that the objective of the conspiracy, either as pleaded or dealt with during the trial, was not to cause the solicitors to breach their private duty.

Ground 3, first limb - both applicants

71.  This ground contended that, in respect of Count 1, it was necessary for the jury to have reached a decision that the applicants had conspired to carry out both objectives as set out in particulars (a) and (b) and that the judge consequently erred in failing to direct them in this regard.

72.  The thrust of the argument is that because there were two separate and distinct certificates to which reference was made in the two particulars and because the prosecution's case differed in respect of those two certificates, the two particulars were distinctly pleaded objectives of the conspiracy as a result of which it was incumbent upon the judge to direct the jury that they had to be sure in respect of both objectives.

73.  With respect, this argument is unsustainable on a simple basis: it confuses the objective of the conspiracy with the means used to attain it.

74.  The objective of the conspiracy was not to create or furnish false certificates.  The objective of the conspiracy was to secure the release of moneys held by the solicitors as stakeholders.  The means whereby that objective was to be achieved was by delivering to the solicitors certificates which purported to comply with conditions prescribed in the agreement of purchase and sale which would trigger the release of those buttons.  The creation of the certificates and their subsequent submission to the solicitors were nothing more than the method used by the applicants to attain the objective of the conspiracy.

75.  If authority be needed for the proposition that it suffices for the prosecution to prove one and not all of the pleaded particulars it is to be found, inter alia, in HO Kun Wing v HKSAR CACC22/2000 where, dealing with a conspiracy to defraud in which three particulars were alleged, Mayo, V.P., said:

31.	A further point was made by Mr Macrae relating to the particulars specified in the charges. He referred to the fact that the Judge was not satisfied that the first particular had been brought home against the applicant, and he pointed out that the Judge made no finding that the applicant was aware of the allegations contained in the third particular. This related to customers believing that they were purchasing goods from BAL when in fact they were purchasing from Belimo Company.
32.	The applicant was charged jointly with Mr Wong. No doubt this was an aspect of the matter which was more the province of Mr Wong than it was the applicant's.
33.	What is important is the agreement which is entered into between conspirators. It is not essential that every detail should be known to every conspirator, see R v Hancock [1996] 2 Cr. App. R 554.
34.	Having regard to the evidence as a whole there can be no doubt whatever that the conspiracy embraced the matters referred to in all three particulars in the charges, and that even if the applicant had not knowingly participated in the conduct to which the first and third particulars related, it cannot be said that he had not knowingly participated in the second.

76.  This ground fails.

Ground five - both applicants

77.  The submissions upon which this ground of appeal is based, that the judge wrongly withdrew from the jury the necessity on its part to make findings in respect of the penultimate and the last particular in each of charges 1 to 3, not only takes out of context what the judge said in the course of his summing up but also ignores the reality of the situation given the manner in which the trial had been prosecuted and defended.

78.  In an overview of the case, at the commencement of the summing up, the judge addressed the jury in these terms:

... what the prosecution say... is that false certificates of payment were produced to the three firms of solicitors to withdraw money from those three firms, and they said that the certificates of payment relating to first, Gold Falcon, and secondly, King Fung, in the first count were false.

And they say that they were false because either the company concerned did not do the work or the company concerned did not do the amount of work as certified in the certificate of payment... And in a nutshell, that is what the prosecution says about the first three counts

...

... but basically those are the issues you have to decide... in the first three counts, were the certificates false or did they reflect the truth of what was happening at the site?

and later

... it is for the prosecution to prove that what the prosecution says is true.  In other words, these various companies never did any work on site and if they did do any work it certainly was not to the extent as certified in the certificate of payment.

and later

… in the first count there are four particulars, which have been set out, and in the second and third counts, there are indeed three particulars which have been set out.  Now, particular (c) the submission of the certificates of payment to the firm of solicitors is in fact admitted.  And particular (d) that because of the submission of the certificates of payment, the solicitors in fact did release the amount stated in the certificate, that also has not been disputed. 

It is in relation to the first two particulars that you have to make a decision on…

With the second and third charges the second and third particulars have not really been challenged apart from the assertion that the certificates are false, the submission and causing solicitor of to release the amount stated has not been disputed and in fact has been admitted.  So in relation to the second and third count, there is really only one particular that you have to make a decision on.  In other words were the certificates of payment, purporting to certify the construction work in connection with the construction of the residential project, Villa Pinada, were completed by Gold Falcon Engineering Ltd

79.  We also bear in mind the judge’s encapsulation of the prosecution case which we set out at §40 supra.

80.  The submission of the various certificates as well as the payments which were made by the solicitors firms to True Gold was an admitted fact in terms of paragraphs 29 to 31 of the First Admitted Facts.

81.  At the time of discussing with counsel the answer to be given to the question asked by the jury this exchange occurred between the judge and leading counsel for the first applicant in the presence of counsel for the second applicant, who did not express a contrary view:

Mr Plowman:	... in other words, as particularised in (a) and (b).  And it's (a) and (b) and (a) and (b) alone.  It can't be (c) and/or (d) alone or (c) and (d) or (c) and/or (d).
Court:	Because (c) and (d) are not really challenged, are they?
Mr Plowman:	No, no.
Court:	Apart from the falsity of the certificates.

82.  The judge was abundantly aware that the issue in respect of the certificates was their falsity, not their submission to the solicitors.

83.  When answering the jury's question the judge made the position clear in these terms:

The conspiracy alleged in Count 1 is a conspiracy to withdraw money from Emersons by the dishonest use of the false certificates of payment... in other words, the allegedly false certificates of payment...

In relation to Counts 2 and 3... submitting the certificates of payment to the firm of solicitors and causing the firm of solicitors to release the money was not really challenged during trial.  In (c) it was not denied that the certificates of payment were submitted to the relevant firm of solicitors.  What is denied in (c) is that the defendants knew that those certificates of payment were false.

[Emphasis supplied]

84.  True it is that the judge did not then go on to say, in terms, that the jury need to make a specific decision in respect of each certificate as to its falsity.  The jury was well aware that the central issue in this matter was whether the work had been done and it followed that, if it had not, the certificates were false.

85.  It was not necessary for him to do so in the light of the summing up as a whole:

... properly to appreciate any part of [a] summing up, it must, in each case be read as a whole.

…

The difference between the two directions can be readily seen but contrasting them does not of itself really assist as any direction must be looked at in the context of the whole of the summing up in which it appears.

…

... the court in HKSAR v HUANG Song Fu CACC 141/2005  emphasised that a jury must be given credit for its ability to apply commonsense to the directions given to them by the judge.  Indeed, an oft-stated justification for the jury system is that juries do bring their commonsense to bear on the directions of the judge and the evidence they have heard .

per Sir Noel Power, NPJ, in HKSAR v PUN Luen Pan FACC7/2007.

86.  The judge did not "withdraw" from the jury any issue which needed a decision: he correctly identified the real issues in the case and guided them to concentrate their attention to those issues.

87.  It follows that this ground fails.

Ground 6 - both applicants : additional ground - second applicant.

88.  We have, in reference to Ground 5, dealt in part with the submission that the judge failed to identify the real issues for decision by the jury.  This ground submits that the true "key issues" were, firstly, whether the agreement to use the architect certificates in respect of the first three counts was dishonest and, secondly, whether there was prejudice in the sense alleged by the prosecution.

89.  Whilst we accept that these were issues which remained before the jury, we reiterate that these were not the "key issues" when the basis upon which the offences were prosecuted and defended is properly appreciated.

The dishonesty issue

90.  If the jury found that the work had been or may have been done then the issue of dishonesty, given the judge's directions to the jury and the conduct of the chart, would no doubt have been resolved in favour of the applicants. The first applicant’s belief in regard to True Gold’s entitlement to payment irrespective of the format used to claim that payment was equally a matter which stood or fell with the resolution of the issue as to whether the work had been done. 

91.  Conversely, if the jury found that the work had not been done then the issue of dishonesty was more than adequately covered by the standard Ghosh direction, which the judge gave in appropriate terms.

92.  We accept that there may be limited instances when the Ghosh direction on its own is inadequate given that it makes no reference to an overriding belief held by an accused person who, that he has a "claim of right" to that which he has obtained.  But in our view that situation does not arise in the present case and the standard Ghosh direction sufficed.

93.  Moreover, it must be borne in mind that in addition to the Ghosh direction the judge clearly laid before the jury the nature of the first applicant 's defence and the effect of that in these terms:

Please bear in mind... if the account given by the 1st defendant is true, then he must be acquitted; but he must also be acquitted if that account given by him in the witness box may be true.

…

And then you remember that the 1st defendant, just before he closed his evidence in chief, said that in relation to the King Fung certificates, he said that the certificates were issued in the name of King Fung because Miss Lam of King Fung and he, the first defendant, had a verbal agreement.  The purpose of the agreement was because the declaration was complicated and involved 100 different companies, if he had issued certificates for these different traders, he had to issue more than 100 certificates in amounts ranging from several hundred to several tens of thousands.  He did not regard that as fraudulent, and in his own mind dealing with it in that way was not dishonest.  And of course he said that he did not conspire with the 2nd defendant to defraud the solicitors concerned.

And I think his evidence was also that he believed that the use of Gold Falcon and King Fung in a representative capacity to make claims on behalf of other contractors was not dishonest, which is why he only submitted certificates of Gold Falcon and King Fung to the stakeholders to withdraw money.

94.  On the facts of this matter, if the jury had found that the work had been done the prospects of them finding that the agreement was dishonest simply because the identity of the claimant was misstated on the certificates would not have arisen because such an approach simply had not been advanced to them at any stage by the prosecution or the judge.

95.  The effect of directing the jury further concerning the question of the first applicant’s belief would have served only to add complexity and do more harm than good, leading to potential confusion on the part of the jury.  When the summing up is viewed as a whole, the judge's directions on this aspect of the trial were balanced and adequate.

The prejudice/risk of loss issue

96.  It is now well settled, if it were ever in doubt, that an essential mental element of the offence of conspiracy to defraud, as referred to in MO Yuk Ping  at §44, is:

"the intention or purpose of inflicting economic loss on another or the realisation that the action agreed upon will or may put that person's economic interests at risk."

97.  It is appropriate to restate what it was the conspiracies set out to achieve: to defraud the person or groups named by dishonestly

"... causing the... firm of solicitors to release... sums of money in the said stakeholder’s account, being moneys deposited by purchasers of uncompleted units of the... residential project."

98.  In total $489 million was paid out by the three solicitors firms as a consequence of the submission to them of the certificates signed by the first applicant. It was open to the jury to infer, from the evidence before them, that by submitting, over periods varying between some 3 and 16 months, 61 false certificates which resulted in payment of such a vast sum of money which would not have been payable had the recipients of those certificates been aware of their falsity, the applicants intended to put at risk the economic interests of those recipients: there can be no doubt that even if the jury did not infer that that was the settled intention it must be that that consequence would have been immediately apparent to and realised by the applicants.

99.  It is correct that when the prosecutor opened the case his stance was that:

The defendants, however, wanted the moneys for other uses, that is for uses other than paying the contractors or the bank...

After obtaining the moneys, only a small portion of the money was used to pay the contractors and the bank. The major portion of the money went to other uses unconnected with the construction of houses. As a result of True Gold Investments Ltd not keeping up with the payment to the contractors which built the houses, the completion of the housing project was delayed.

The purchasers right in obtaining possession of the houses they purchased on time was prejudiced. They also stood the risk of losing all the deposits they had paid because... the developer had mortgaged ... the property to the bank...

The contractor... was not paid on time, not because True Gold Investments did not have sufficient money in the bank account to pay but because the moneys were channelled elsewhere.

The rights of the bank which provided the finance was prejudiced because if the contractors were not paid, the building could not be completed and sold. The interest of the bank which held the security under the mortgage will be adversely affected as a result...

100.  It is correct, too, that when he closed the prosecution case the prosecutor again dealt with the interests of various persons or groups of persons whose economic interests may have been put at risk. It may well be that the prosecution had taken the view that, because of the movement of funds through the various companies, the moneys had been appropriated to uses other than the construction costs. Even so, that was not an essential element of the offence which, as was clear from the indictment, was the securing of the release of the funds from the stakeholders accounts.

101.  The prosecutor returned to this in the course of his closing address:

It is not necessary for the prosecution to prove an actual loss because the essence of the crime is the exposure of the victim to the risk of loss. So what we are saying is that the two defendants has agreed together to embark upon a course of conduct, namely, to obtain money from the banks and the stakeholders by unlawful means; that is, by a way which is unlawful. Why we say it is unlawful is because this way of achieving the aim exposed the victim to the risk of loss.

It does not matter that, in the end, maybe no people has suffered loss; it does not matter. But in this case we do say people had suffered loss. But to decide on a charge of conspiracy to defraud, we look at whether or not there is an agreement to defraud. If there is, it does not matter whether, in the end, loss has been suffered. The prosecution do not have to prove that actual loss has occasioned.

...

The first category of persons whose interests are affected is of course the solicitors themselves. The solicitors get the funds in the stakeholders account for a specific purpose. They undertake to the Lands Department that they would keep the money in a special, specific way and not to release them unless it accords with the agreement for sale and purchase. So the solicitors have a duty to keep the funds and they have obviously an interest in the funds.

102.  Both as a statement of law and as a statement of fact based on the evidence adduced during the trial, that is correct. The fact that the prosecutor chose to give additional categories of the persons whose interests may have been prejudiced in addition to those of the solicitors, does nothing to detract from the accuracy of the quoted passage.

103.  The judge in his summing up repeated, in effect, what the prosecutor had said. He identified the categories of persons whose economic interests may have been put at risk by the two applicants: he dealt specifically with the solicitors as one of those categories. We have set out the judge's directions regarding the necessity for the prosecution to prove the risk of economic loss at §69 supra.

104.  We accept that the judge's directions regarding economic loss were, on the face of it, somewhat spartan. We are satisfied that, in the context of this trial, they were sufficient: although economic loss was in issue before the judge it attracted less consideration than other issues. The judge's summing up on this aspect was commensurate with the prominence afforded it.

105.  The sole purpose of the prosecution opening its case is to outline the evidence which it is hoped to place before the jury, in order that the jury may be able to appreciate the significance of each piece of evidence as it is given by the witness. That the prosecutor elaborated on the use to which the prosecution believed the moneys to have been put once the object of the conspiracy had been obtained was unnecessary but did not render that usage an essential element of the offence which it became necessary for the prosecution to prove. What was necessary to be proven was the conclusion of the agreement between the two applicants to use dishonest means with the purpose of causing economic loss to or putting at risk the economic interests of another or with the realisation that the use of those means may cause such loss or put such interest at risk.

106.  When the first applicant gave evidence it was his case that the amount withdrawn from the various accounts was substantially less than the actual cost of construction which had been incurred: this formed the basis of his assertion that he was neither dishonest or intended economic loss. These were matters that were foursquare before the jury when the judge's summing up is read as a whole.

107.  It follows that this ground also fails.

108.  For the sake of completeness we would add that, unlike the first applicant, the second applicant exercised his right not to testify or to call witnesses. The tenor of the defence advanced on his behalf was that the prosecution was unable to prove dishonesty or intention on his part: a prime pillar of that approach was that his role in the companies was minor and that he acted as he did in the exercise of his duties, without knowledge of events which lay behind the various certificates.

109.  The judge correctly addressed the jury in this regard following terms:

... the 2nd defendant says that he was not in the same or similar position as the 1st defendant because he said that he, for most of the time was not at the site, he did not know much about construction matters; he was a banker by profession and knew about financial matters such as mortgages and he spent most of his time in the offices of Gold Face.

He said that in his position he did not know and he could not have known that the architects certificates of payments were false because even though he had signed the contracts with the five companies concerned, he was not to know that those contracts were not real contracts and that those contractors did not in fact do the work, which is stipulated in the contract and the work being done at the side of the Villa Pinada project.

The prosecution... says that the evidence against him is similar to the evidence against the first defendant.  In other words, they both signed documents; in the main the 1st defendant signing certificates of payment, and the 2nd defendant signing the letters to the solicitors and the letters to the bank asking for a drawdown of part of the loan.

110.  There was more than adequate evidence before the jury from which the jury was entitled to infer his state of knowledge.

THE SECOND APPLICANT’S SENTENCE

111.  When sentencing the second applicant the judge declined to draw a distinction between the role which he played and that played by the first applicant.  That the judge erred in this respect forms a major contention in the second applicant’s grounds of appeal against sentence.  It was submitted that the role which he played was little more than that of a functionary within the structure of the relevant companies and that his role was limited to signing what came across his desk.  This ignores that what he was signing were the agreements with the five disputed companies; the letters accompanying the false certificates to solicitors; the letters accompanying the false certificates.  The judge was correct in not distinguishing between the respective roles of the applicants.

112.  The amounts which were wrongfully obtained from the solicitors in their capacities as stakeholders, and thus the risk to the economic interests of the solicitors, were extremely large.  The judge accepted that there was no evidence in the bank account of True Gold that any payment was made either to the first or second applicant.

113.  At the end of the day of the development project was completed and the purchasers of the units obtained possession of them.  The judge acknowledged this factor in considering the appropriate sentence.

114.  The judge was aware of all the mitigating factors advanced on behalf of the second applicant.

115.  The judge observed and correctly took into account the fact that an amount of some $190 million was, at the time of trial, still outstanding to various creditors involved with the development.  Various submissions were made as to how it came about that amounts remained unpaid including an attempt to lay the blame at the door of the main contractor, China Overseas Building Construction.

116.  The scheme in which the second applicant participated extended over approximately 16 months, comprising an ongoing cynical manipulation of a system which was designed to protect members of the public from financial loss whilst at the same time assisting a building developer to fund a genuine development.

117.  The sentence was appropriate.

THE CONCLUSION

118.  In the circumstances each applicant’s application for leave to appeal conviction is dismissed: the second applicant’s application for leave to appeal sentence is similarly dismissed.