HKSAR v. KWAN TAK KWONG AND OTHERS

CACC 347/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 347 OF 2001

(ON APPEAL FROM DCCC 234 OF 2001)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Backgrounds

1. The applicants, Kwan Tak Kwong (A1), Yuen Sik Wah (A2) and Lam Kin Man (A3) were convicted after trial by Deputy Judge Mackintosh in the District Court on 6 counts of conspiracy to defraud. They were sentenced to concurrent terms of imprisonment of two and half years, two years and twenty-one months respectively. They all seek leave to appeal against conviction.

2. At all material times, A1 was a shareholder of Kingston PVC Company Ltd. (Kingston). He was also the technical director in charge of production. He is experienced in PVC products and machines producing PVC pellets that are raw materials for plastic products.

3. Mr. Tang Chiu Man (PW1) was the Chairman, a director and major shareholder of Kingston. His daughter married the brother of A1. PW1's son Mr. Tang Tai Wing (PW2) was also a director of Kingston.

4. In 1993, A1 joined Wide Loyal Industries Ltd. (Wide Loyal) as a consultant and when its proprietor Mr. Ko Yu-chow (PW3) started the business of manufacturing PVC products and later became its deputy general manager. A1 did not disclose his association with Wide Loyal to Kingston.

Prosecution Case

5. The prosecution alleged that A1 had caused both Kingston and Wide Loyal to purchase PVC machines for their businesses at falsely inflated prices from Wing Ka Engineering Company (Wing Ka). A2 and A3 were the bosses and persons in charge of Wing Ka and from the payments of Kingston and Wide Loyal, they paid A1 substantial rebates (kick-backs) of over $3 million.

6. The first 4 charges related to purchases by Kingston from Wing Ka. On 4 occasions between June 1994 and May 1998, Kingston executed 4 contracts with Wing Ka to purchase machines. Pursuant to those contracts, Kingston paid Wing Ka the respective sums of $955,000, $869,625, $869,625 and $1,485,000.

7. The 1st contract related to a WK150MMB oil double screw extruder priced at $955,000. The 2nd and 3rd contracts each related to a WK100MM PVC oil single screw extruder priced at $484,250 and a MIS-740 double speed mixer priced at $385,375. The 4th contract related to a WK150MMA oil double screw extruder priced at $650,000, a MIS-840 twin speed mixer priced at $390,000, and another small item.

8. In connection with the 4 contracts, A1 received from A2 and A3 payments of $519,550, $578,625, $578,625 and $955,931.25 respectively totaling $2,632,731.25.

9. The payments to A1 were deposited into his personal account by cheques drawn upon Wing Ka's account. A2 and A3 were the only authorized signatories to the account.

10. Under the 5th contract Wide Loyal purchased from Wing Ka two KTK-100 Italian oil single screw extruders priced at $480,000 each and two KTK-740 high-speed mixers priced at $128,898 each, making a total of about $1,218,000 after discount. Under the 6th contract Wide Loyal purchased three sets of KTK-150 Italian oil crew extruders priced at $865,476 each and three sets of MIS-840 mixers priced at $170,238 each, making a total of $2,610,000 after discount. KTK-100 was similar to WK100MM, KTK-740 was similar to MIS-740 and KTK-150 was similar to WK150MMB.

11. After Wide Loyal paid for the machines, corresponding payments amounting to $698,600 were deposited into A1's account by cheques drawn upon the account of Wing Ka.

Agreed and Unchallenged Facts

12. The payments by Kingston and Wide Loyal to Wing Ka for the machines and the payments by A2 and A3 to A1 were all agreed. It was expressly agreed that the payments to A1 by Wing Ka were made from the sale proceeds received by Wing Ka under the 6 contracts in question.

13. In addition to the payments to A1, Wing Ka also paid A3 $15,468.75 from the proceeds of the 4th contract and A2 $872,400 from the proceeds of the 6th contract.

14. The prosecution also adduced as evidence the unchallenged records of interview of A1 and A2 by the ICAC.

15. In the interview, A1 at first denied he was involved in the purchase of machines from Wing Ka by Kingston and Wide Loyal. He also denied the payments to him by Wing Ka. When confronted with the payment records, he advanced a number of explanations: that he did not know the reasons, that they were repayments of loans and eventually that they were technical consultation fees. In any event, he denied the amounts suggested by the ICAC.

16. A1 was asked about the difference in the quotations of prices of the machines given to him and those given to Kingston and Wide Loyal. He said he was unsure and did not give a satisfactory explanation.

17. A2 also tried to distance himself from A1. He said the machines supplied to Kingston and Wide Loyal were more expensive because they were different. When confronted with payments to A1, he said they were payments for his design and services as A1 had served Wing Ka as a consultant.

Prosecution Witnesses

18. PW1 said he agreed to purchase the machines for his Shenzhen factory on the recommendation of A1 and he also agreed to the prices. He said he trusted A1 and allowed him, his brother and their friend, a Mr. Leung to run the business. He knew very little about the contracts himself as they were all arranged by A1 whose decisions he did not question.

19. PW1 said Kingston did not permit any staff to receive commission and A1 never informed him that he had lent money to A2 and A3. A1 never told him that he had received any payments from them.

20. PW1 said he was never told that the machines were not standard types and had to be researched into and developed to suit any special need. He said he was only told that they would enhance productivity.

21. He agreed that the machines under the 2nd and 3rd contracts were subsequently sold for 100% profits through arrangements by A1. Those machines were in fact sold to joint ventured companies, Nam Tung Kingston and Yee Hing Kingston.

22. PW1 disagreed with the suggestion that he had bad feelings for A1 because of the divorce of his daughter from A1's brother and that A1 had set up a competing business in China.

23. PW2 also said the contracts with Wing Ka were all handled by A1 who was experienced in the field. He believed A1 would get the best prices for Kingston. It was only at a later stage when the machines were taken for repairs that the quotations for the machines were found out to be much lower than the prices Kingston had paid.

24. PW2 was referred to 2 quotations P19A and P19B. P19A was sent to PW1 for machines under the 4th contract. The prices quoted were the same as those set out in the 4th contract. However the other quotation P19B was sent to A1 and the prices quoted for identical machines were much lower.

25. PW2 said he was not aware of A1's relationship with Wide Loyal. He said the company records of Kingston showed that A1 was an employee with a salary ranging from $7,000 to $20,000 a month for the period in question.

26. PW3 said A1 was engaged as a consultant and was made the Deputy General Manager of Wide Loyal in early 1996. It was on A1's recommendation that machines were purchased from Wing Ka. PW3 said he agreed to the prices suggested by A1, as he trusted him. He also agreed that he had attended negotiations with Wing Ka with a view to reduce the prices of the machines.

27. PW3 denied the suggestion that A1 had invented products for Wide Loyal although he did help to improve its products.

28. It was fair to say that the most damaging evidence against the applicants came from Ho Lai Yuk (PW5) who was at the material time an accounting clerk of Wing Ka. PW5 confirmed that both A2 and A3 were her bosses and generally she took instructions from them. All cheques issued by Wing Ka in favour of A1 were signed by both A2 and A3.

29. PW5 was able to say that of all the payments made by Kingston and Wide Loyal under the 6 contracts in question, including instalment payments, there were corresponding payments to A1.

30. In fact, the amounts of the instalment payments matched the corresponding payments to A1 to the nearest cent. The payments to A1 were entered in the company ledgers and other account documents as "refunds", "temporary receipts on behalf of Mr. Kwan (A1)", "for Mr. Kwan's current account", "received on behalf of Mr. Kwan" etc.

31. So far as the contracts with Kingston were concerned, the payments out in relation to the payments by Kingston were also noted as "return to Kingston", "a refund to Mr. Kwan".

32. The cheque payments relating to the Kingston and Wide Loyal contracts were all made out to A1. However, a bankbook recorded the payments out as payments to Kingston and not A1. There was no record of the payments as technical consultation fees or payment for formulae. There was no record of any collections of fees by Wing Ka on behalf of A1.

33. PW5 was unable to explain why there were such huge differences between the prices for the machines supplied to Kingston and Wide Loyal and those quoted to other customers. She said the prices were provided by A2 and she just put them down on his instructions.

34. PW5 was referred to a number of quotations issued by Wing Ka to customers other than Kingston and Wide Loyal. Those quotations stipulated that the prices for the machines were as follows:

Model WK150MMB oil double screw extruder machine $455,000,

Model WK150MMA oil double screw extruder machine $405,000 to $415,000,

Model MIS840MM double speed mixer $125,000 to 137,500,

Model MIS740MM double speed mixer $115,000 to $126,500,

Model WK100MM oil single screw extruder machine $155,000 to $173,000.

On the other hand, the prices of the machines charged to Kingston and Wide Loyal were much higher as follows:

Model WK150MMB oil double screw extruder machine $955,000.

Model WK150MMA oil double screw extruder machine $650,000.

Model MIS 840MM double speed mixer $390,000.

Model MIS 740MM double speed mixer $385,375.

Model WK100MM oil single screw extruder machine $310,000.

35. It was to be noted that sometimes instead of double speed, high speed was used to describe the mixers. PW5 said neither A2 nor A3 explained why there were such differences in the prices, as the machines looked the same. She also said it seemed to her that the quotations were for Taiwanese and Italian models and never for any basic models. The Taiwanese and Italian models referred only to the design of the screws to the machines. The machines were in fact all locally made.

36. PW5 informed the court that there was no record of any payments to A1 as remuneration for services. There was also no declaration to the Inland Revenue describing A1 as consultant, employee or representative.

37. PW5 however agreed that she never examined the internal parts of the machines and that sometimes machines were made to the specific requests of customers. She also agreed that after the initial quotations, there might be discussions about further requirements from customers and second quotations would be sent. PW5 also agreed that there were differences between high-speed mixer and double speed mixer as the motors were slightly different and that machines with oil cool system were more expensive.

38. PW6 Mr. Lau Shiu Woon was the head of Wing Sau Industrial Company. Wing Sau had been producer of PVC machines for a long time and in fact A2 and A3 used to work for it before they started Wing Ka.

39. PW6 had been in the business for 38 years and the judge accepted him as an expert. He said the price differences between single screw machine and double screw machine could be as much as 100%. However the difference between oil-cooling machines and air-cooling machines was about $60,000 and the single speed and double speed machines had a price difference of about $20,000.

40. PW6 disagreed with the defence's case that the use of Taiwan made screw for the machine would substantially increase the price of the machine, as the additional cost of a Taiwan made screw was only about $40,000.

41. PW6 had inspected briefly two of the machines supplied to Kingston with the defence expert in the course of the trial, including the extruder under the 1st contract.

42. PW6 said his company would charge $500,000 for the extruder machine under the 1st contract. His company had never produced such a machine for $955,000 and he had never heard of another company charging such a price. Similarly, he had not heard of a mixing machine being sold for $385,000 or more.

Defence

43. The defence was that the prices paid to Wing Ka were not inflated prices but genuine prices reflecting the qualities of the machines. In particular, it was suggested that the type of screws used in the machines rendered such machines much more expensive.

44. The payments by A2 and A3 to A1 were not payments relating to the sales by Wing Ka, but payments for design works undertaken by A1 for Wing Ka and its customers.

45. The suggestion was that A1 was responsible for significant enhancements to the machines produced by Wing Ka and Wing Ka had agreed to pay him a fee of $3 million. In addition, A1 also designed PVC formulae for some Wing Ka customers and Wing Ka simply collected payments from those customers on his behalf and then handed over the payments to him.

46. It was the defence's case that Wing Ka would make the payments to A1 as and when fund was available. The payments by Kingston and Wide Loyal enabled Wing Ka to make the payments to A1.

47. A1 and A2 gave evidence to support such contentions. A3 elected to remain silent and called no evidence.

48. A1 tried to explain the discrepancies in the quotations of prices to him and to witnesses from Kingston and Wide Loyal. He said the quotations were initially for basic models and adjustments would have to be made to meet customers' requirements. There were therefore second quotations.

49. He said he had never received the quotations for the machine under the 1st contract for $455,000 although the quotations were directed to "Mr. Kwan" at Kingston. He said the quotations were initially verbal and he then worked out the precise requirements and asked for another quotation, which had a price of $955,000.

50. A1 said it was always his practice to ask for a basic quotation first before he worked out the detailed requirements by Kingston, which would result in a second quotation. Such arrangement explained why the quotations to A1 for an extruder and a mixer could be $155,000 and $128,000 whereas the quotations to Kingston for machines of similar description were $450,000 and $390,000 respectively.

51. He was however unable to explain the huge difference in prices when the descriptions of the machines were identical. He admitted he lied to ICAC on a number of matters. He said he was scared. In particular, he said he denied having received money from Wing Ka as he thought receiving money would amount to corruption.

52. A1 also said he did not have the time and the opportunity to explain as fully as he would want to.

53. A2 gave the same explanation for the difference in prices. He was questioned about the large sums of money given to A1 in relation to the turn over of Wing Ka and the lack of documentation relating to the payments. He was unable to give a satisfactory reply. He said some of the payments to A1 were payments by customers for formulae devised by A1. But there was no proper record and sometimes no record at all. He said he had kept a note on a piece of paper but that had been lost or destroyed.

54. He also agreed that there was no invoice issued to customers in respect of such fees and money was collected in cash, as his company did not want to be involved. A2 also admitted that he did not specify to PW5 that the payments to A1 were for formula fees and consultation fees. He just told PW5 to issue the cheques without specifying the purpose. It was PW5's own idea to put them down as refunds to Kingston.

Judge's Findings

55. It was perhaps not surprising that the trial judge did not believe the evidence of A1 and A2 at all.

56. The judge found there was a huge inflation of the prices ranging from about 30% to over 60% charged to Kingston and Wide Loyal under the six contracts in question. The judge concluded that the inflated prices were not the result of enhancement to the machines but linked directly to the payments to A1 by Wing Ka. The judge also found that the applicants had conspired to defraud Kingston and Wide Loyal and they were acting dishonestly.

Grounds Of Appeal

57. In this appeal, it was suggested that there was insufficient evidence to support the findings that the prices paid by Kingston and Wide Loyal were inflated and that the evidence of A1 and A2 on such aspect should not have been rejected.

58. In so far as A3 was concerned, further objection was taken to the judge's reasons for verdict when he said at paragraph 102:

"D3 (A3) is not to be criticized for exercising his right not to give evidence; but the lack of any account of matters from him make the inferences easier to draw. I find I can draw with certainty the inference that he was an active participant in the conspiracies."

59. It was suggested that the judge had used A3's silence as a factor to enable him to draw vital inferences of guilt when the evidence against A3 was tenuous and wholly circumstantial.

Counsel's Submissions and Analysis

60. Mr. Grossman SC on behalf of A1 and A2 criticised the judge for not referring to the fact that PW1's complaint only started after A1's brother had separated from his daughter and that A1 was poorly paid. It was suggested that the judge was wrong in not referring to the fact that two of the machines were sold on for twice the price paid by Kingston and that the machines were capable of producing huge profits.

61. The judge was criticised for not allowing questions on those profits. The judge was also criticised for not properly handling the evidence of PW5 and PW6. In particular, it was suggested that the judge did not take a balanced view of their evidence and had not referred to the evidence of PW6 which evidence was favourable to the defence. The suggestion was that it was wrong in any event to treat PW6 as an expert.

62. Reference was also made to the inability of the defence to properly examine the machines with a view to demonstrate the modifications which justified the increase in prices.

63. Mr. Macrae for A3 made similar submissions in addition to the suggestion that the judge had used A3's silence as a factor to draw the adverse inference against him.

64. It must be borne in mind that it was never the defence's case that PW1 had any motive to lie against the A1. In fact PW1's evidence could hardly be described as incriminating A1. The so-called family feud, which PW1 denied, was hardly relevant. The judge was right in saying that it had no significant bearing on the case. In any event, the judge was well aware of the defence case.

65. While two of the machines were sold for twice their purchase prices, it must be remembered that they were sold to joint venture companies and the sales were arranged by A1. The transactions were not arms-length transactions and the sale prices of the machines were therefore not a reflection of their true market prices.

66. The judge was well aware of the issues.

67. The judge had clearly indicated that PW6 was qualified to give expert evidence on the machines in question. The defence raised no objection when PW6 gave evidence on the machines and their prices. The defence was allowed to adduce an expert's report in response. There was no valid basis for saying that the judge was wrong in the way he dealt with PW6's evidence.

68. The important issue for the court to decide was whether the prices charged by Wing Ka were grossly inflated. The efficiency of the machines and the profits that could be derived from the operation of those machines were not relevant. After all, even at regular prices, the machines were worth hundred of thousand dollars and the profits of the business would depend on various other factors than the efficiency of the machines. The judge was right in limiting questions on the profits of the business.

69. The contents of the 6 contracts did not reflect any special features of the machines, which might have the effect of enhancing their prices. In fact the machines were described in identical terms as those in other quotations with much lower prices.

70. Despite the repeated suggestions that the machines had special features which would substantially increase their prices, such special features were never properly identified, let alone proved by evidence. When PW6 was cross-examined on the issue, only very general and vague suggestions were made.

71. It is true that the defence had not been afforded the opportunity to examine the machines. There had already been a long lapse of time since the machines were delivered and the request for examination was made at a very late stage.

72. In any event, in the absence of positive identification of the alleged special features, the examination or otherwise of the machines would have hardly made any difference.

73. It had to be borne in mind that the judge did allow extensive questioning on the alleged improvements to the machines. It had to be borne in mind also that the applicants themselves were experts in the trade. If the machines did have special features and those features accounted for the substantial increase in the price of the machines, they should have no difficulties in pinpointing them without any examination. It must be remembered that "the special features" were the very foundation of their defence. Wing Ka had produced the machines. The applicants would know full well, better than anyone what special features had been added, and at what cost. Yet these particulars were never identified, nor put to any witness, nor adduced by their own expert.

74. Instead what were present were just general and vague suggestions.

75. In his evidence, A1 said he re-designed the machines manufactured by Wing Ka and machines supplied to Kingston and Wide Loyal were of his design. A1was unable to account for the difference in price between machines of his design and those of "basic model". He said the price was decided by A2.

76. A2 did not account for the increase in price of the machines supplied to Kingston and Wide Loyal either. He simply said the material used was different and the design was more difficult. He said the price was agreed upon after discussion with A3.

77. Both A1 and A2 agreed that from the relevant quotations and the contracts, it was not possible to tell whether the machines were of "basic model" or of A1's design.

78. In our view, the so-called special features and the late request for examination are just smoke screens put forward by the defence to blur and obfuscate the real issues. The judge should not be criticised for making little reference to those matters when dealing with PW6's evidence.

79. In a case involving a lot of details such as the present one, it was neither necessary nor desirable for the judge to deal with every detail. The judge needed only set out the issues involved in the case and succinctly deal with the evidence relevant to the issues.

80. An appellate court should only interfere with the trial judge's findings when his "evaluation (has) been shown to be absent, irrelevant, lacking, careless or flawed in (a) substantial way." (See the judgment of Mortimer JA in R v Li Chun-yue, Criminal Appeal No. 240 of 1996)

81. The evidence clearly suggested that the prices charged to Kingston and Wide Loyal were unusually high. The judge considered the explanations offered by A1 and A2 on the matter. He rejected those explanations.

82. We do not propose to set out the judge's reasons for rejecting the explanations of A1 and A2. Suffice it to say that there were ample justifications for doing so. They were not telling the truth either in their interviews with the ICAC or in their defence. The judge was also entitled to attach little weight to the report of the defence's expert, Dr. Lau.

83. On the evidence, the defence allegation that the grossly inflated prices of the machines were justified because of special features was a non-starter. The judge was clearly right in rejecting such allegation.

84. The judge had properly and adequately analysed and evaluated the evidence as a whole. He had paid special attention to the quotations of Wing Ka for similar machines, the prices for similar machines in the market, the nature and timing of the payments to A1, the amount of the payments and how those payments were recorded in the company documents.

85. The judge concluded that the prices charged to Kingston and Wide Loyal had been inflated by 30% to 60%. The judge found that the payments to A1 by Wing Ka were linked to the inflated prices and sometimes recorded as refund to Kingston.

86. The conclusion of the judge could not be faulted.

87. Counsel are of course right in suggesting that not every case of accepting a secret profit constitutes conspiracy to defraud. A seller can pay a commission to an agent or servant as "sweetener" so as to encourage him to show favour in the selection of supplier and such "sweetener" may not be adequate to support an allegation of fraud.

88. But we are not dealing with a case where the seller pays a commission to an agent or servant, having charged the buyer a fair and reasonable market price. On the facts as found by the judge, Wing Ka had charged Kingston and Wide Loyal prices which had been highly inflated. Such highly inflated prices were necessary because A1 was to dishonestly obtain financial benefits under the contracts at the expenses of Kingston and Wide Loyal. Such dishonesty, in the circumstances of the present case, supported the case of fraud against the applicants.

89. Furthermore, the size of the payments to A1 and the proportion they bore to the prices charged revealed payments that were not mere sweeteners. Once the judge concluded that these were connected to the contracts themselves and were not consultancy fees- an obvious conclusion on the facts, the payments were themselves damning evidence of the price inflation alleged.

A3's Silence

90. With respect, the suggestion of Mr. Macrae that the judge had wrongly used the silence of A3 as a factor enabling him to draw inferences of guilt against A3 is wholly misconceived.

91. An accused is of course entitled to remain silent and such silence proves nothing, one way or the other. On the other hand, when an accused has not given or called any evidence it means that there is no evidence from the defence to undermine, contradict or explain the evidence of the prosecution. This, the judge was well aware of for he specifically said at paragraph 8 of his reasons for verdict that, as to A3's failure to give evidence, he drew no adverse inference, and worked only with the evidence he had received.

92. A3 was one of the only two bosses and persons in charge of Wing Ka. He was active in the company, being the person in charge of production. He was one of the co-signatories of the cheques paid to A1. A3 must be aware of the prices charged to Kingston and Wide Loyal as well as the payments to A1. It was PW5's evidence that she took general instructions from either A2 or A3. In respect of the 4th contract, A3 also received part of the payment by Kingston.

93. A2 also alleged in his evidence that A3 was aware of the contracts in question. He was also aware of some of the prices and the payments to A1. A2's evidence was not challenged by A3. In fact they were represented by the same counsel at the trial.

94. In any event, as the judge quite rightly pointed out, the sums of over $3 million paid to A1 were indeed very significant sums in the light of the size and turnover of Wing Ka. Moreover, these payments were made frequently. The amounts paid to A3, to which the charges relate, were paid by no fewer than 59 separate cheques, each signed by A3. It was naive to suggest that A3 would be ignorant of the nature and the purpose of such payments.

95. The judge was right in concluding as he did that A3 must be aware that the payments to A1 came from the inflated prices as the ordinary profit margin of the business could not support such payments.

96. The evidence against A3 might be circumstantial and might not be very substantial. He might not have taken as active a role in the matter as A1 or A2. But the evidence against him was certainly not tenuous.

97. On the facts found by the judge, it was open to the judge to infer that he was part of the conspiracy to defraud Kingston and Wide Loyal of huge sums of money. In the objected passage, the judge was simply saying that in the absence of any evidence from the defence, he found it easier to draw an inference of guilt based on the prosecution's evidence.

98. The approach was a correct one. In Li Defan & Another v HKSAR [2002] 1 HKLRD 527. Lord Hoffmann NPJ made the following observation at p. 540:

"This evidence plainly called for some explanation of why the money had been paid and the appellants...were well aware of this. In the circumstances I consider that the judge...was perfectly entitled to regard the failure of the accused to give any explanation on oath as strengthening the inference to be drawn from the prosecution case."

99. One may very well doubt whether, in making his comment at paragraph 102 of the reasons for verdict that "...the lack of any account of matters from [A3] make the inference easier to draw." viewed in combination with his comment at paragraph 8 of the reasons for verdict to which we refer at 91 above, the judge was in fact using the lack of an explanation as in any way strengthening the prosecution case; rather than merely saying, as was obvious, that there was no evidence, to undermine the inference which naturally arose from the evidence in fact presented. But in any event the comment by the judge cannot properly be criticized. If there was an explanation for A3 signing 59 cheques all in favour of A1, all for substantial amounts, and all for an innocent reason; or if the system in the office was of some kind which precluded him from knowing the reason; or if there was an explanation other than the one that A1 and A2 had presented; or if A2 had misled him; only A3 could provide that explanation. A3 chose not to provide one and the judge cannot in the circumstances be faulted for saying that it was, in the absence of any such account by A3, easier for him to draw the inferences.

Conclusion

100. None of the matters raised by the applicants rendered their convictions unsafe or unsatisfactory. The applicants were rightly convicted.

101. Their applications had to be dismissed and we so order.