THE QUEEN v. LOOI KIM-LEE (LOOI KOWNG-LUI) AND ANOTHER

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JUDGMENT

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McMullin, V-P. :

1. The first defendant LOOI Kwong-lui was employed as Branch Manager of the Northpoint branch of the Chiyu Bank. The second defendant, CHAN Chang-kun, is a  businessman who had banked with that bank for several years and had known the first defendant for about five yearse.

2. In January 1981, the first defendant, who was wishing to purchase a flat, was introduced by the second defendant to the second defendant's sister-in-law who was in possession of a flat which she wished to sell. The first defendant did not have sufficient funds and the second defendant offered to lend him a hundred and forty thousand dollars, the price being asked for the flat. The first defendant accepted the money and the purchase price was paid and the flat was transferred to him.

3. In April 1981, the first defendant agreed to join the second defendant in a business to be called the Ko Wah Motor Trading Company but because he did not trust another person nominated as a prospective partner he withdrew from the venture before the firm was registered. The Bank's Internal Regulations, binding upon all employees, forbade both the taking of loans from customers and engaging in commercial enterprises of any kind.

4. In June 1981, the Ko Wah Motor Trading Company applied to the first defendant's branch of the Chiyu Bank for credit facilities in the form of a Trust Receipt for $300,000 and a letter of credit for $600,000.  This application was processed by the first defendant who recommended the granting of these facilities.  The security offered for the $300,000 was the flat which the first defendant had purchased from the second defendant's sister. The first defendant filled up the necessary application form which had to be cleared with the Examination Section of his own branch and notified to  Head Office pursuant to the application.  In this form he stated that the value of the property was $340,000 and that the premises were occupied by the owner.  At the  time when this application form was submitted the premises were in fact occupied by a sub-tenant on a lease which did not expire until December 1981.

5. The first defendant identified the owner of  the flat by the name LOI Kim-lee which was an alias of his own unfamiliar to his immediate colleagues and to the staff at headquarters.

6. In the same form the Trust Receipt facilities and the Letter of Credit facilities were stated to be secured not only by the mortgage on the property but also by a personal guarantee by the second defendant a brief description of whose property and assets was included in the form.

7. The second defendant never drew upon these credit facilities for the Ko Wah Motor Trading Company but in August 1981 the first and second defendants entered into a partnership setting up another firm called simply Ko Wah Trading Company which was however registered as a sole proprietorship in the name of the second defendants.

8. The first defendant undertook to gain credit facilities for this venture also. However, instead of applying in the usual way to the Examination Section  with a separate application form the applicant caused the original form to be altered by deleting the word "Motor" and by altering the bank account number to that of the new Ko Wah Trading Company account.  He caused similar alterations to be made in the copy kept at headquarters by informing a clerk that the company had re-registered in a new name. This was of course untrue.

9. On the 21st of August 1981, the second defendant withdrew $200,000 by cheque from the Ko Wah Trading Company account. On the 22nd of August, the first defendant, by filling out a loan card relating to that account, purported to show that the original credit of $300,000 had been temporarily frozen and that a facility of $200,000 by way of Overdraft had been substituted therefor. None of these alterations had been cleared either with the Examination Section of the outlying branch or with head office.

10. There was evidence that, about the time in question, the first defendant as Branch Manager had authority to sanction an overdraft up to $200,000 but in that event he would also have to consult the Examination Section of his own branch, although, upon the evidence, this would usually be done by the defendant recommending the loan and circulating the necessary papers to the various members of the Examination Section who usually would simply append their signatures thereto.

11. Mr. Eddis who appeared for both defendants in the court below, and also upon the hearing of the appeal, concedes that the first  defendant had acted very irregularly and in a manner contrary to the bank's regulations. He describes the defendants' various manoeuvres as "cutting corners" but he maintains that there was nothing in any of this of so dishonest a character as to warrant the bringing of criminal charges.

12. These irregularities only came to light sometime in 1982 when an auditor from head office first discovered the change from Trust Receipt to Overdraft.  Eventually the matter was reported to the Independent Commission Against  Corruption.  Both of the defendants were interviewed by officers of the Commission. The first defendant made a statement on the 30th of March 1983. The second defendant made a statement on the 6th of April. These statements were admitted in evidence without challenge, as was the record of a lengthy interview between the second defendant and officers of the Commission on the 13th of December, 1983.  They were subsequently charged with the present offences and were convicted as charged.

13. The first charge is a joint charge of conspiracy to defraud contrary to Common Law.   The particulars of the charge are as follows :

"LOOI Kim-lee alias LOOI Kwong-lui and CHAN Chang-kun, on divers days between the 23rd day of June 1981 and the 31st day of August 1981, in  this Colony, conspired together to defraud the Chiyu Banking Corporation Limited by flasely representing that (a) an application by the Ko Wah Trading Company for an overdraft facility of HK$200,000 had been made in accordance  with the said Bank's rules and regulations concerning such applications, and (b) that the said overdraft facility was properly and adequately secured or guaranteed, and in particular that a flat known as 371 Ngau Tau Kok Road, Yen On Building, 5th floor, Flat M, Kowloon, in this Colony, was adequate security therefor in that it was occupied by its owner and not by tenants."

14. The second and sixth charges are taken under Section 9(1)(b) and Section 9(2)(b) of the Prevention of Bribery Ordinance, Cap. 201.  These charges concern respectively the offer by the second defendant and the acceptance by the first defendant of the loan of $140,000.   The particulars state that this sum was  offered and accepted as an inducement to or reward for or otherwise on account of the first defendant showing the second defendant favour in relation to the first defendant's principal's affairs or business.

15. The first defendant was also charged with making a false entry in a document contrary to the provisions of Section 59 of the Banking Ordinance (the third charge) and with using a false document contrary to the provisions of Section 9(3) of the Prevention of Bribery Ordinance (the fifth charge).  These charges related, respectively, to the false figure of $340,000 put in the application for credit facilities form and the giving of the same figure as the value of the flat together with the information that it was for self-residence in another form known as the  Investigation of Real Estate Market Price Form which the first defendant submitted to the Kiu Kwong Investment Corporation to assess  value of the security for the purposes of the Chiyu Bank.  The Kiu Kwong Company relying on the information in the form, confirmed the security as satisfactory.

16. We are no longer concerned with either of those changes since, although originally the conviction thereunder were challenged, in the course of the hearing of the appeal Mr. Eddis abandoned the application in relation thereto.

17. The remaining charge (the fourth charge) also concerns the first defendant only. It is taken under Section 19(1)(a) of the Theft Ordinance and it relates to the loan card made out at the instance of the first defendant and purporting to show that an overdraft facility of $200,000 had been granted to the Ko Wah Trading Company.

18. At this point  it might be convenient to summarize the nature  and the extent of the first defendant's "corner-cutting" activities.

19. As the Manager of a branch office of the Chiyu Bank he had (a) agreed to join a common enterprise with a customer of the bank and had withdrawn from that only because of dissatisfaction in respect of one of the prospective partners.  This endeavour was in clear breach of  the bank's own regulations to his knowledge; (b) he had accepted a loan of $140,000 from that same customer for the purpose of buying a flat from the customer's sister-in-law.  Again in flagrant breach of the bank's regulations; (c) in the application for credit facilities for the business from which he had withdrawn he misrepresented the security offered for the Trust Receipt facility of $300,000 in two distinct ways viz : (1) by alleging that the property was worth $340,000; (2) by alleging that the property was owner occupied whereas it was in fact  occupied by a sub-tenant whose tenancy did not expire until the end of December, 1981; (d) in the same application form, addressed to the bank, he had represented the owner-occupier as a person bearing a name which was in fact an alias of his own and one which was unfamiliar either to his colleagues at the branch where he worked or to his superiors at headquarters; (e) he had, without going through the normal channels, caused the original application to be altered by removing the word "Motor" from the name of the company originally making the application for credit  and did so by representing that this was a mere re-registration of the same company  whereas  in fact the Ko Wah Trading Company was a wholly different and new entity; (f) he represented the Ko Wah Trading Company as being a sole proprietorship whereas he was a secret participant therein and thus in breach of the bank's regulations; (g) purportedly acting within his own authority, but once again without consulting the Examination Section of his own branch or head office he extended Overdraft facilities to the Ko Wah Trading Company in place of the Trust Receipt facilities originally offered to the Ko Wah Motor Trading Company.  One of the senior officials of the Chiyu Bank told the court that any such change would have needed to be negoitated with head office and that a facility by way of Overdraft would have been more carefully scrutinized  than one which related to a Trust Receipt.

20. Overhanging the whole of  these procedures is the patent fact that the first defendant, a trusted and  senior employee of the Chiyu Bank, was gaining for himself a loan from the bank under the guise of extending credit facilities to a customer.

21. There can be no question but that the first defendant's conduct throughout was misleading and deceiful to a high degree. In this regard, the first charge, the conspiracy charge is probably the one which requires the closet examination and it will be convenient to deal with the substantive charges first.

The fourth charge - false accounting contrary to Section 19 (1)(a) of the Theft Ordinance, Cap 210    

22. The particulars  are that the first defendant falsified the loan card "dishonestly with a view to gain for himself and CHAN Chang-kun" (the second defendant) in that the said card purported to show that an Overdraft facility of $200,000 had been granted to  the Ko Wah Trading Company. Mr. Eddis maintains that this is (a) not a document required for accounting purposes at all, but merely a notification to the bank of what had come about in fact; and (b) that the card itself correctly and honestly states that an overdraft facility had been granted. We think however that Mr. Grossman's reply to these contentions is quite clearly correct.  In truth no overdraft facility had legitimately been granted to the Ko Wah Trading Company, and the loan card is itself a document containing information which would necessarily be consulted as part of the bank's records, available to auditors or other persons interested in scanning the bank's own accounts.  It was a false document and it covered a manoeuvre whereby gain accrued both to the first and second defendants.

The second and sixth charges (Section 90 (1)(b) and Section 9(2)(b) of the Prevention of Bribery Ordinances, Cap. 201)                   

23. These charges concerned respectively the accepting by the first defendant and the offering by the second defendant of the loan of $140,000.  The relevant parts of Section 9 are as follows :

"Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his - ........ (b) showing ........ favour ........ to any person in relation to his principal's affairs or business, shall be guilty of an offence."

Subsection 2 which relates to the second defendant is in identical terms but covers the offering as distinct from the soliciting or accepting of the advantage.

24. Mr. Eddis does not deny that the first defendant was an "agent" of the Chiyu Bank for the purposes of the section, and he does not deny that the $140,000/- constitutes an "advantage".  His argument is two-fold.  Firstly, he says that gifts between businessmen are part of commercial practice in Hong Kong, and he maintains that gifts and favours merely designed to keep business relations sweet are not such as the legislation seeks to restrain. It is unnecessary and unhelpful in this case to go into the question of whether and to what extent or in what circumstances such gifts or favours may lack criminality because they fall within the qualifying words of the section "without lawful authority or reasonable excuse", or the exemption in Section 9(4).  Those matters do not arise in this case.

25. Mr. Eddis says that it is not enough for the Crown to show that the $140,000/- was given and accepted as an inducement or reward or otherwise an amount of the recipient showing favour to the giver in relation to the affairs of the recipient's principal.  He says that the Crown cannot succeed unless it shoos the motive to have been "corrupt".    The word "corrupt" does not appear in the section. The marginal note is "corrupt transactions with agents".  Counsel disclaimed any reliance upon the marginal note, and then went on to pray it in aid as an indication that one must look outside the words of the section for an additional ingredient of the charge, which he alleges is a corrupt motive or ulterior intent. Assuming, but not accepting, that one can consider the marginal note it does not support counsels' argument. In Cooper v. Slade⁽¹⁾ the lords had to consider Section 2 of the Corrupt Practices Prevention Act, 1854 which stated "every person who shall ..... give or agree to give ..... any money ..... to any voter in order to induce him to vote, or refrain from voting ..... or shall corruptly do any act ..... on account of any voter having voted or refrained from voting" shall be guilty of an offence. Willes J. speaking for the majority said -

"I think the word 'corruptly' in this statute does not mean 'dishonestly', but purposely doing an act which the law forbids as tending to corrupt voters ..... or a reward for having voted in a particular manner .....  The word 'corruptly' seems to be used as a designation of  the acts of rewarding a man for having voted in a particular way as being corrupt, rather than as part of the defination of the offence."

A more recent case is R. v. Smith ⁽²⁾ where the section said  "every person who shall ..... corruptly give ..... any gift ..... as an inducement or reward for ..... any member officer or servant of any public body doing ..... anything in respect of any matter .....  in which such public body as aforesaid is concerned, shall be guilty of a misdemeander."

26. The court referred to Cooper v. Slade and held that motive was immaterial. These cases support our opinion that one does not have to look outside the words of the section in order to find the ingredients of the offence, and in particular that no motive is required to be proven, though it may go to mitigation. The intent required is an intention to do the acts forbidden by the section with the intention of the receipient ....."showing or forebearing to show ....." etc. as the section  sets out.

27. Mr. Eddis, secondly, says that the intention of there being in future a reciprocal "advantage''  must be present at the time the advantage is offered or accepted. We agree. In the absence of the required intention in relation to a reciprocal favour existing at the time of the offer or acceptance of an advantage, a subsequent granting of a reciprocal advantage would not suffice to create the offence. However a subsequent reciprocal advantage may cast light on the intention with which the original advantage was offered or received. Mr. Eddis points out that there is no presumption of corruption from the offering or acceptance of an "advantage" where the recipient is not a public servant, and  the situation is quite different from that which arises where a charge is brought under Section 4 and bribery is alleged concerning a public servant. In relation to that situation Section 25 of the Ordinance does specifically provide a presumption of corruption.  He asks us to say that the evidence of acts, subsequent to the giving of the loan, do not necessarily point back to the loan having been given or accepted for the obtaining or giving of a subsequent reciprocal "advantage". He says there is nothing in the evidence to show any necessary connection between the loan of $140,000/- granted by the second to the first defendant in January, and the extending of credit facilities firstly to the Ko Wah Motor Trading Company in June and ultimately to be Ko Wah Trading Company in August. Since it  is common ground that the bank was eventually repaid in full, he maintains that the first defendant's manoeuvres, however questionable in relation to the regulations of the bank, should be regarded as an honest endeavour to carry on the bank's business - i.e. the business of lending money at considerable interest in a manner which did nothing either to call his own integrity into question or to put the bank's business interests at risk.  There was, he says, nothing to show an intention that any favour should be given to the customer when the loan was made in January, and this, he says, is reinforced by the fact that the bank was eventually fully repaid.

28. The granting of a loan of $140,000/-  by a bank's customer to the manager of the branch at which the account is kept, is to put it mildly, unseemly and undesirable. It creates a real possibility of a conflict of interest arising between the manager's private affairs and his duties  and responsibilities as bank manager. The granting of such a loan must give rise to, at least, suspicions as to the reason it was granted and the mental attitude of the parties.  Such suspicions may be reinforced and verified by other circumstances, not least among which may be the subsequent relations between the parties. Subsequent conduct of the parties may confirm as correct, the suspicions as to what was in the minds of the parties at the time of the granting of the loan. The trial  judge took the view that the subsequent conduct of the parties. indicated the relationship that had been formed between them by the granting  of the loan, and what had been in their minds when  the loan eras granted. He concluded that it fell within what was forbidden by Section 9.  It is not surprising that he came to that conclusion, which appears to us to be unassailable.

29. There is further confirmation for that view to be found in the answers the second defendant gave in reply to questioning by officers of the Independent Commission Against Corruption. Of course, as the trial judge appreciated, the answers of one defendant to the officers was not evidence in relation to the other defendant.  In the questioning of the second defendant the following appears :

30. Although the second defendant there says no more than that he expected to receive the kind of grace in relation to his overdraft which any customer of the bank might well expect, the answer taken as a whole does indicate that he was giving the loan in expectation of favour, and the trial judge was not obliged to accept - and no doubt did not accept - that the expectations of the second defendant were quite as modest as he then expressed them to be.  Given the normal uncertainties of commercial relations and the delays which may occur in the course of trading, a sympathetic bank manager may be a not inconsiderable advantage Another passage in his questioning is as follows :

It seems unlikely, from his own answers, that the second defendant did not expect at least indulgent treatment in times of difficulty as a result of his loan. He did, of course, receive assistance of a much more enthusiastic nature as is shown in his own words in the following answer :

31. Can it be imagined that in giving the first defendant a loan of $140,000/- the second defendant did not believe, expect and intend that if a time of financial stringency came upon him he would receive more favour from the manager, and therefore from the bank, then he could have expected in the absence of the loan.

32. So far as the first defendant is concerned, it is plain that he was not in a position to repay the loan out of his own funds at the time when the loan eras made. It would cut against the grain of the evidence as a whole to suggest, even as possibility, that the first defendant did not, from the outset, intend to favour the second defendant by making the latter, in effect though not in legal substance, a creditor whose personal claim against the first defendant was secured by the bank's resources. This constitutes such a favouring of the second defendant as is forbidden by Section 9.

The Conspiracy

33. The first charge particularizes the alleged conspiracy as follows :

"LOOI Kim-lee alias LOOI Kwong-lui and CHAN Chang-kun, on  divers days between the 23rd day of June 1981 and the 31st day of August 1981, in this Colony, conspired together to defraud the Chiyu Banking Corporation Limited by falsely representing that (a) an application by the Ko Wah Trading Company for an overdraft facility of HK$200,000 had been made in accordance with the Bank's rules and regulations covering such application and (b) that the said overdraft facility was properly and adequately secured or guaranteed, and in particular that a flat known as 371 Ngau Tau Kok Road, Yan On Building, 5th floor, Flat M, Kowloon, in this Colony, was adequate security therefor in that it was occupied by its owner and not by tenants."

As to this charge, Mr. Grossman fairly concedes that the matter contained in the statements made by the defendants to the officers of the ICAC constitutes the only source of evidence to show the necessary meeting of minds without which the charge could not be sustained. So far as the second defendant is concerned the Crown is in this difficulty that, having particularized  the charge in the way it has done, the trial court was left without direct evidence that the second defendant was ever apprised of the manner in which  the first  defendant intended to procure the consent of the bank to the proposed credit facilities, or of the manner in which he had actually done so.  When, in a long and careful judgement, he came to this point - which is the essential core of the conspiracy charge - the trial judge said :

We think it must be said that the only reasonable inference that can be drawn from the relationship between the two parties is that the second defendant must have been aware that a credit facility ostensibly being extended to his Ko Wah sole proprietorship was, in fact, a loan to the first defendant to enable the first defendant to repay the second defendant and that therefor that he must have known that there was an element of deceit in the arrangements between them which was designed to impose upon the bank. This is the principal substance of the false representation alleged in paragraph (A) of the particulars in the charge. That the second defendant was aware that the bank was being in some measure deceived is implicit in what he says in the course of his original statement to the officers of the ICAC where he refers to the opening of a current account in the Chiyu Bank in the name of the Ko Wah Motor Trading Company :

"LOOI Kwong-lui was working in the bank and it was not convenient to make his  name known so money could be withdrawn with the signatures of two of the three remaining shareholders."

A little further on in the same statement he admits that the shared intention was that the flat purchased by the first defendant would be used as a security to guarantee the loan, the primary purpose of which was to repay the second defendant.

34. Although there is nothing in the statements of the second defendant which would constitute an admission to knowing that the first defendant was going to represent the value of the flat at a greatly inflated figure or that the first defendant was going to represent it as being owner-occupied it matters not. The most that can be said is that the prosecution failed to prove the matters particularized in paragraph (B) of the particulars in the charge. The substance of the conspiracy alleged in that charge is constituted by the evidence showing the false representation of the nature of the arrangement between the parties.  The irresistible conclusion was, as the trial judge perceived, a shared intention to deceive.  Such an intention is quite sufficient to support a charge of conspiracy to defraud. The trial judge wisely refused to be drawn into the debate, principally concerning the term "dishonestly", which continues to exercise the minds of commentators arising from the decisions of the Court of Appeal (Criminal Division) in the case of R. v. Greenstein (1975) 1 W.L.R. 1353, R. v. Landy and others (1981) 1 O.E.R 1172 and R. v. Ghosh (1983) 1 W.L.R. 110 and he grounded his decision on this shared intention to deceive which he found proved upon the evidence.

35. It is true that in the case of  R. v. Scott (1975) A.C. 819 the House of Lords held that an intent to defraud need not necessarily involve an intent to deceive. In that case Counsel for the appellant had enlisted the elegant and many times repeated formulation of Bukley J. in Inre London and Globe Finance Corporation Limited (1903) in C.H.  728 viz :

"More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action."

While not conceding that Buckley J.'s aphorism constitutes a definitive formula of what is meant by the "intent to defraud" Viscount Dilhcrne, delivering the leading speech with which all the other Judges agreed, said (page 836) :

"In a great many and it may be the vast majority of fraud cases the fraud has been perpetrated by deceit and in many cases Buckley J.'s dicta have been quoted in charges to juries.''

36. Applying that formula to the present case it must be said that the Chiyu Bank was induced by a deceitful misrepresentation to extend these credit facilities to cover an arrangement of a kind of materially different from that which was ostensibly proposed to it by the defendants. It matters not that the defendants, or either of them, may have thought that no harm would come to the bank.  That was something for the bank to consider and the defendants did not condescend to make the bank privy to the true nature of their relationship and the request which was founded upon it. A proprietary right of the bank was put to risk and it was for the bank to say, on fullest disclosure of  the realities behind the request, whether it was prepared to accept that risk. Quite apart from the fact  that the first defendant did not give evidence, any allegation that he honestly intended  that the bank should not suffer by this arrangement is wholly irrelevant in the circumstances already discussed.

37. In R.v. Allsop (1977) 64 Cr. App. Report 29 C.A.  the charge  was conspiracy to defraud and the  mechanism, as alleged, of the fraud was as in the present case, the giving of false particulars in certain forms. Delivering the Judgement of the Court of Appeal (Criminal Division) Shaw L.J. said (page 31) :

"If the deceit which is employed imperils the economic interest of the person deceived, this is sufficient to constitute fraud even though in the event no  actual loss is suffered and  notwithsanding that the deceiver  did not desire to bring about an actual loss."

And further on (page 32) he said :

"Where a person intends by deceit to induce a course of conduct in another which puts that other's economic interests in jeopardy he is guilty of fraud even though he does not intend or desire that actual loss should be ultimately suffered by that other in this context."

38. For these reasons we are satisfied that the trial judge came to the proper conclusion in relation to both defendants under the conspiracy charge.

39. The only other argument advanced before us was to the effect that the Judge had wrongly refused a belated application to sever the conspiracy charge from the other charges. We did not call upon the crown to answer upon that ground. This was a case in which the conspiracy charge was justified on the ground  that, in its absence, the full nature of the defendants' dishonest co-operation would not have been adequately impugned. For these reasons the applications for leave to appeal will be refused.

Sentence

40. The first appellant LOOI Kim-lee received sentences of imprisonment totalling three years following upon his conviction upon a series of charges arising out of the conspiracy into which he had entered with the second appellant CHAN Chang-kun.

41. This morning ore dismissed the applications for leave to appeal against conviction of both appellants and I do not propose to rehearse once again the circumstances of the fraudulent behaviour which led to these prosecutionse.

42. In imposing sentence the District Judge quite rightly focused his attention upon the undesirability of deceitful behaviour of this kind on the part of a bank manager and he emphasized the importance played by banks in the commercial life of Hong Kong. Those remarks were, of course, primarily directed to the activities of the bank manager, the first appellant.

43. We are satisfied that the first appellant was the initiator of this conspiracy and he rightly received the heavier sentences. But on what has been said in dismissing the appeal against conviction, we have no doubt that the second defendant was fully aware of the deceit which was being practised and was therefore participant with the first appellant in the particular form of activity which attracted the remarks of the District Judge in imposing sentence.

44. Mr. Eddis asks us to say that the total criminality involved and the actual amount of money involved would not in the circumstances disclosed, oblige the imposition of custodial sentences. We cannot agree. We think that the behaviour, particularly of the first appellant, but even of the second appellant to the extent to which he was involved in the conspiracy merited a custodial sentence. The courts are obliged to make it clear that persons holding positions of importance and trust, high in commercial service - although the law may not bear as heavily upon them as it does upon public servants - nevertheless must regard themselves as responsible to the public in matters of great importance and therefore liable to incur heavy punishment if their dealings are not entirely honest.

45. In the present case a particular feature of importance is the relationship of trust which existed between the first appellant and his employer, the bank. A trust which he breached substantially for his own advantage over a period of time.

46. We do not think that custodial sentences were improper in the present case. I do not propose to refer to the several cases to which Mr. Eddis referred us.  He rightly points out that Section 9 cases are something of a "rarely" as far as precedents are concerned and the other decisions to which he has referred us under other provisions are not of great assistance.

47. We think however that the sentences imposed in the present case, approaching the matter from the point of view of totality, were too high.  We cannot say that it was on the part of either appellant a conspiracy of the gravest kind although every such breach of trust must be considered a matter of gravity.  We accept the view that all the substantive offences related to activities, which were in general support of the conspiracy.

48. The District Judge in imposing sentence no doubt had totality in mind in imposing the separate terms which he imposed in respect of the substantive offences and we think that the totality which was appropriate in the case of the first appellant should be two years' imprisonment and the case of the second appellant one year only.

49. We grant the applications and treating the hearing of the applications as the hearing of the appeals.  We set aside the sentences imposed. In regard to the first applicant we substitute therefor sentences of two years in relation to the conspiracy, two years on the Section 9(l)(b) charge, two years on the Section 19(1)(a) Theft Ordinance charge and two years on the Prevention of Bribery Section 9(3) charge leaving the 1½ years on the Banking Ordinance charge as it stands. In regard of the second appellant, we reduce the first sentence, the sentence on the conspiracy charge, to one year and we reduce the Offering of an Advantage charge under Section 9(2)(b) of the Bribery Ordinance to one year also.