HKSAR v. CHAN KUI YUEN also known as THOMAS CHAN AND ANOTHER

CAC C 444/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 444 OF 2014

(ON APPEAL FROM HCCC NO. 98 OF 2013)

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J U D G M E N T

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1. Thomas Chan and Francis Kwan, who were described in the indictment at trial as the 4th and 5th defendant respectively, seek leave to appeal against their convictions on 19 December 2014 after trial by Macrae JA and a jury of Counts 5 and 7, namely conspiring together and with Rafael Hui, Thomas Kwok and Raymond Kwok, respectively the 1st, 2nd and 3rd defendants, to commit misconduct in public office and conspiring with the same persons to offer an advantage to a public servant.  In addition, Thomas Chan seeks leave to appeal against the sentences of 5 years’ imprisonment imposed in respect of each of Counts 5 and 7 and the order that one year of the term of imprisonment imposed in respect of Count 7 be served consecutively to the sentence of imprisonment imposed in respect of Count 5.

2. Rafael Hui was convicted on Counts 5 and 7, together with other counts.  Thomas Kwok was convicted on Count 5, but acquitted of Count 7.  Raymond Kwok was acquitted of Counts 5 and 7, as well the two other counts he faced on the indictment.

Count 5

3. Count 5 alleged that the five stipulated conspirators conspired together between 1 March 2005 and 30 June 2007 that Rafael Hui, whilst the holder of a public office, namely Chief Secretary for the Administration of the Government of the HKSAR, would wilfully misconduct himself in the course of or in relation to his public office by being or remaining favourably disposed to Sun Hung Kai Properties (SHKP) and/or its subsidiaries or associated companies in return for the payment of $8.5 million, contrary to Common Law, sections 159 A and 159 C of the Crimes Ordinance, Cap. 200 and section 101 I(1) of the Criminal Procedure Ordinance, Cap. 221.

Count 7

4. Count 7 alleged that the five stipulated conspirators conspired together between 30 June 2005 and 29 January 2009 to offer a Rafael Hui, a public servant, namely first of all Chief Secretary for the Administration of the Government of the HKSAR and then a Non-Official Member of the Executive Council, an advantage, namely $11.182 million through a series of payments from Thomas Kwok, Raymond Kwok, Thomas Chan and Francis Kwan, as an inducement to or reward for or otherwise on account of Rafael Hui performing or abstaining from performing or having performed or abstained from performing an act in his capacity as a public servant, namely being or remaining favourably disposed to SHKP and/or its subsidiaries or associated companies, contrary to sections 4(1)(a) and (12) contrary to the Prevention of Bribery Ordinance, Cap. 201 and sections 159 A and 159 C of the Crimes Ordinance, Cap. 200.

The trial

Count 5

5. On the afternoon of 30 June 2005, Rafael Hui took the oath of office as the Chief Secretary for the Administration of the Government of the HKSAR.  There was no dispute that in the period on and between 27 and 30 June 2005 eight payments to a total of $8.5 million were made to his Standard Chartered Bank account either directly by or on the direction of Francis Kwan.  On 27 June 2005, Francis Kwan received a cashier’s order in the sum of $10.8 million from the account of Villalta, a bank account operated by Thomas Chan and his family.  The payments of $8.5 million made to Rafael Hui came from those monies.  Similarly, there was no dispute that the payments made to Rafael Hui were made on the ultimate directions of Thomas Kwok.  By two cheques dated 20 June and 28 June 2005 he paid $4 million and $4.8 million respectively to Thomas Chan

6. It was the prosecution case that the payments to Rafael Hui were a ‘general sweetener’, made to secure his favourable disposition, as Chief Secretary, towards SHKP.  They were bribes. As such, the payments were disguised and made through an indirect and a complicated route. 

7. It was the defence case that the payments had a legitimate purpose, namely that they were the balance of a consultancy arrangement between Thomas Kwok and Rafael Hui.  Thomas Chan, as well as Rafael Hui and Thomas Kwok, gave evidence in support of the defence case.  Thomas Chan said that Thomas Kwok asked him to make the payments.  He understood that they were monies owed to Rafael Hui under the consultancy agreement.  Having established with Rafael Hui that $10.8 million was owed, he intended to make that payment to him directly.  However, at Rafael Hui’s request he made the payment of $10.8 million to Francis Kwan.  For his part, Francis Kwan’s case was that he had received monies into his bank account and made payments to Rafael Hui at his request.  He was told that the monies were the balance of monies due under a consultancy agreement.  He relied on the evidence of Rafael Hui to that effect.

Count 7

8. On 30 June 2007, Rafael Hui completed two years service as Chief Secretary.  On the following day, he was appointed a Non-Official Member of the Executive Council.  On and between 21 November and 12 December 2007 payments to a total of $10.182 million were made by Francis Kwan from his Hang Seng Bank account to the Standard Chartered Bank account of Rafael Hui.  In addition, on 21 November 2007 a payment of $1 million was made by Francis Kwan from his Hang Seng Bank account to the bank account of Top Faith Enterprises Limited, a company controlled by Rafael Hui.

9. On 9 November 2007, $12 million was remitted by Villalta, as noted earlier, an account operated by Thomas Chan and his family, to the account of Wedingley Limited with DBS in Singapore.  It was an admitted fact that Wedingley was a British Virgin Island company controlled by Mr Tommy Kow.  On 20 November 2007 US$1.543 million was remitted from that account of Wedingley to an account of Francis Kwan with DBS bank in Singapore.

10. On 22 and 30 April 2008.  Thomas Kwok paid two cheques to Thomas Chan for $5 million and $7 million respectively.  On 30 April 2008, Thomas Chan transferred $13 million to the account of Villalta.  On 7 November 2008 Thomas Kwok paid Thomas Chan $6 million.

11. It was the prosecution case that the payment of a total of $11.182 million to Rafael Hui was also a ‘general sweetener’.  They were bribes.  Again, the payments were disguised and made through an indirect and complicated route.  The subsequent payments made to Thomas Chan by Thomas Kwok were reimbursements of the monies paid by him as bribes.

12. It was Thomas Chan’s case that the payment of $12 million made 9 November 2007 by Villalta to Wedingley Limited was an investment he made with Francis Kwan motivated by his interest in a product called AlcolOut.  He did not know that those monies were used to make payments to Rafael Hui.  It was Francis Kwan’s case that the payments that he made to Rafael Hui were unconnected with and did not emanate from any corrupt payments made by the Kwok brothers or SHKP.

Grounds of appeal against conviction

Thomas Chan

13. Mr Winter, QC advanced no fewer than eight grounds of appeal against conviction on behalf of Thomas Chan.  Grounds 1 to 3 addressed his conviction on Count 5, whereas grounds 4 and 5 addressed his conviction on Count 7.  Grounds 6 to 8 addressed matters generally.

Count 5

Ground 1

14. By ground 1, it was submitted that Count 5 alleged an offence unknown to the law of Hong Kong.  Misconduct in public office requires there to be an act of misconduct, such that it cannot be committed by a public officer merely being of or remaining in a certain state of mind. Therefore, a conspiracy to commit misconduct in public office requires an agreement that the public officer will, should it become necessary, actually misconduct himself.  Count 5 of the Indictment contained no such allegation.  Accordingly, it was contended that Thomas Chan’s conviction on Count 5 is bad in law and should be quashed.

Ground 2

15. By ground 2, it was submitted that, at the close of its case, the prosecution had failed to adduce prima facie evidence that Thomas Chan knew of or was party to the conspiracy alleged in Count 5.  In consequence, the judge erred in failing to accede to a submission of ‘no case to answer’ and in failing to direct the jury to return a verdict of not guilty on Count 5.

Ground 3

16. By ground 3, it was contended that no jury properly directed could have concluded on the evidence that Thomas Chan knew of or was party to the conspiracy alleged in Count 5, so that his conviction is unsafe and unsatisfactory.

Count 7

Ground 4

17. By ground 4, it was submitted that Count 7 of the Indictment alleged an offence unknown to the law of Hong Kong.  Bribery, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance Cap. 201, requires that a bribe was paid as an inducement to, reward for or otherwise on account of the performance or abstaining from performance of an act in a person’s capacity as a public servant.  Therefore, a conspiracy to pay a bribe requires an agreement that the bribe was paid in connection with the performance or non-performance of an act in a person’s capacity as a public servant.  Count 7 contained no such allegation. Accordingly, Thomas Chan’s conviction on Count 7 is bad in law and should be quashed.

Ground 5

18. By ground 5, it was submitted their Count 7 alleged a ‘closed’ conspiracy between the five stipulated conspirators to bribe Rafael Hui with Thomas Kwok’s and/or Raymond Kwok’s money for the benefit of Thomas Kwok and/or Raymond Kwok and/or Thomas Chan and/or Sung Hung Kai Properties Limited and/or certain of its named subsidiaries.  It was contended that, in consequence of the acquittal of Thomas Kwok and Raymond Kwok, as a matter of law Thomas Chan had to be acquitted.  So, Thomas Chan’s conviction on Count 7 is unsafe and unsatisfactory.

Counts 5 and 7

Ground 6

19. By ground 6, it was submitted that the length of time that the jury was required to deliberate on each day of their deliberation was excessive and unreasonable, such that the verdict of the jury is unsafe and unsatisfactory.

Ground 7

20. By ground 7, it was submitted that the judge erred in directing the jury, albeit in accordance with Specimen Direction 55.3 of the Judicial Institute’s ‘Specimen Directions in Jury Trials’, at 7:30 p.m. on the fourth day of their deliberations, which direction he repeated the following day.  The direction was to the effect that they should try to reach a verdict in a process that might involve an individual member being persuaded to accept a view that he or she did not previously hold.  Although the judge gave that direction first of all having received a note from the jury stating, “We have focused on one count (Count 7) for much time, but no verdict can be confirmed.  We would like to seek for further assistance”, the judge failed to enquire of the jury whether it might be possible, on further deliberation, to arrive at a verdict.  It was contended that in consequence the conviction of the Thomas Chan on the fifth day of the jury’s deliberations Count 7 is unsafe and unsatisfactory.

Ground 8

21. Finally, it was submitted that in all the circumstances of the case the convictions of Thomas Chan of Counts 5 and 7 are unsafe and unsatisfactory.

Francis Kwan

22. Mr Blanchflower SC advanced three grounds of appeal against conviction on behalf or Francis Kwan.

Ground 1

23. By ground 1, it was submitted that the judge had erred in admitting into evidence, after a voir dire, a handwritten document seized from the home of Francis Kwan during a search by officers of the ICAC on 19 March 2012.  It was contended that the judge erred in determining that the document was not subject to legal professional privilege, as had been claimed by Francis Kwan in his evidence in the voir dire.

Ground 2

24. By ground 2, it was submitted that the judge had erred in ruling that there was a case to answer for Francis Kwan on Count 5.  It was contended that the count as particularised, namely without the identification of a specific act that the conspirators had agreed would be carried out did not constitute the offence of misconduct in public office.

Ground 3

25. By ground 3, in the alternative, it was submitted that the judge had misdirected the jury in his summing up in directing them that it was not necessary for the prosecution to identify any particular act that was agreed by the conspirators that it was intended that Rafael Hui would carry out.

The respondent’s objections to the grant of leave to appeal against conviction

Thomas Chan

26. In his written submissions for the respondent, Mr Perry, QC, objected to the grant of leave to appeal to Thomas Chan on all of the grounds of appeal, save for ground 1 and ground 4, in respect of Counts 5 and 7 respectively.

Francis Kwan

27. In respect of Francis Kwan, Mr Perry objected to the grant of leave to appeal to Francis Kwan in respect of ground 1 only.

28. Mr Perry submitted that none of the grounds, to which objection was taken, “involve a question of law alone.”  Further, he contended that on analysis, each of the grounds of appeal was unarguable.

The submissions on behalf of Thomas Chan

29. On behalf of Thomas Chan, Mr Winter submitted that all the grounds of appeal, save for grounds 2, 3 and 8, “involve questions of law alone.”  On that basis, he contended that leave to appeal was not required on grounds 1, 4 to 7.  In the alternative, he submitted that if leave to appeal was required on the grounds to which objection was taken leave to appeal ought to be granted.[1]

The submissions on behalf Francis Kwan

30. On behalf of Francis Kwan, Mr Blanchflower submitted that the objection taken in ground 1 to the judge ruling admissible the manuscript document found in the search Francis Kwan’s home was reasonably arguable.  He contended that the judge had failed to take into account and draw plausible inferences from the contents of the manuscript note itself.  It was submitted that the judge erred in placing too great a reliance on the failure to claim legal professional privilege in respect of the document for over two years.

A consideration of the submissions

Thomas Chan:

Ground 2: ‘no case to answer’- Count 5

31. By ground 2, it was submitted that the prosecution had adduced insufficient evidence to establish a prima facie case in respect of Count 5, that Thomas Chan knew that $8.5 million was paid to Rafael Hui or that its purpose was corrupt.

32. The judge rejected a submission to that effect at the close of the prosecution case:[2]

“I am satisfied that the evidence does establish a case to answer in respect of all counts on the indictment, in respect of each respective defendant. There are certainly arguments that can be made to a jury about the prosecution evidence.

Nevertheless, the strengths or weaknesses of this evidence are matters for the jury.

In my judgment, on one view of the facts, the jury properly directed could come to the view -- I do not say they will come to the view -- that each defendant is guilty on each count which he faces.”

33. Whilst there was no dispute that Thomas Kwok had drawn two cheques in favour of Thomas Chan for $4 million and $4.8 million dated 20 and 28 June 2005 respectively, it was submitted that at the close of the prosecution case there was no evidence that Thomas Chan knew that the cheques had been deposited into the account of Villalta with DBS and the joint account with the Hang Seng Bank in the name of Thomas Chan and his wife, Selina Ho.  Further, whilst there was no dispute that a cashier’s order in favour of Francis Kwan for $10.5 million had been drawn on the account of Villalta, it was submitted there was no evidence that Thomas Chan knew of that, let alone that he ordered it to be done.  The cashier’s order was issued on the instructions of Thomas Chan’s daughter on the authorisation of his wife.  It was collected by his son. Whilst there was no dispute that, having received received the payment of $10.5 million into his Hang Seng Bank account, Francis Kwan used some of those monies to make a payment to a total of $8.5 million to Rafael Hui, it was submitted that there was no evidence that at the close of the prosecution case that Thomas Chan knew of those payments to Rafael Hui.

34. The respondent submitted that those financial transactions are to be viewed in the context of other events.  First, Thomas Chan was a long-standing and trusted colleague of Thomas Kwok.  Secondly, Rafael Hui became the Chief Secretary of the HKSAR on 30 June 2005.  Thirdly, Thomas Chan was involved in the steps that were being taken to create tenancy agreements in respect of two flats at Leighton Hill, of which Rafael Hui was in occupation and had occupied since 2003.  Those agreements were dated 24 June 2005, but were signed on 27 June 2005.  Fourthly, Thomas Chan signed on behalf of the landlord in one of the agreements.  The agreements, for a 30 month period, stipulated monthly rent of $80,000 per flat. So, the total rent payable was $4.8 million.  That was exactly the amount of the cheque signed by Thomas Kwok drawn in favour of Thomas Chan dated 28 June 2005.

35. On 27 June 2005, Rafael Hui received in his Standard Chartered Bank account two cheques, each in the sum of $500,000, drawn on the account of Francis Kwan with HSBC.  They were the first of the eight payments to a total of $8.5 million made by Francis Kwan to Rafael Hui in the period 27 to 30 June 2005.  On 27 June 2005, Rafael Hui signed a cheque drawn on the account of Top Faith in the sum of $480,000, being two months deposit and one month’s rent in respect of the two flats.

36. As the judge noted in his ruling in respect of the ‘no case to answer’ submissions, “the strengths or weaknesses of this evidence are matters for the jury.”[3]  In the context of Thomas Chan’s submissions in respect of Count 5, the issue at the close of the prosecution case was whether or not there was evidence from which the jury “could, may or might” find that Thomas Chan was a party to the conspiracy alleged in Count 5.

37. In my judgment, the arguments advanced on behalf of Thomas Chan by ground 2 do not involve questions of law only.  Rather, they involve questions of mixed law and fact.

Conclusion

38. I am not satisfied that the grounds of appeal advanced at present by Mr Winter in support of ground 2, namely that the judge erred in ruling that Thomas Chan had a case to answer on Count 5, are reasonably arguable.  Accordingly, I refuse leave to appeal on ground 2.

Ground 3

39. By ground 3, it was submitted that no jury properly directed could have concluded on the evidence that Thomas Chan knew of or was a party to the conspiracy alleged in Count 5.

40. In the defence case, Rafael Hui, Thomas Kwok and Thomas Chan all gave evidence.  Each of them testified about the circumstances in which arrangements had been made to make payments to Rafael Hui at the end of June 2005.  Rafael Hui and Thomas Kwok testified that the payments were legitimate payments of monies due under a consultancy agreement with Rafael Hui.  For his part, Thomas Chan testified that is what he had been told by Thomas Kwok.

41. Of Thomas Chan’s evidence, the judge said:[4]

“On about 20 June, which was a Monday, Thomas Kwok spoke to him in his office and informed him that Donald Tsang had been elected Chief Executive.

…Thomas Kwok told Thomas Chan that he was not expecting the appointment of Rafael Hui to happen so soon, and that the media reports about Rafael Hui being Chief Secretary must have been true. Accordingly, he would have to do a calculation with D1 in respect of the balance that he owed him. He was later to agree with Ms Montgomery and Mr Kelsey-Fry that he understood the effect of this conversation to be that the balance was in respect of a private consultancy arrangement he had had with Rafael Hui. Thomas Kwok said he thought he owed Rafael Hui $10 million and asked Thomas Chan to issue a cheque to D1 directly on his behalf.

Thomas Kwok told the witness he would reimburse him by way of three cheques. Just before the witness left Thomas Kwok’s room, Thomas Kwok added that he did not want his elder brother and his mother to know about it. He then asked the witness to call Rafael Hui to confirm the amount, and gave him a cheque for $4 million.

Although Thomas Kwok did not directly explain why the matter was urgent, the witness himself understood that it was because the new administration would be in place on 1 July, and any payments made to D1 after that date would have to be declared by him.

The witness said he was not surprised that Thomas Kwok did not want his elder brother to know, because there had been differences of opinion between the brothers for a few years, and he had got used to the brothers’ practice of hiding things from Walter Kwok. He himself was not suspicious about this, nor was he suspicious about the fact that Thomas Kwok said he would issue three cheques. Had Walter Kwok come across a single cheque in the amount of $10 million in the accounts, he would have been suspicious.

The witness said he did not tell anybody except his daughter, because he had to ask somebody to handle the matter for him, and he had to do it urgently. He therefore told his daughter that he needed a cheque for roughly $10 million, and then gave the $4 million cheque to his daughter, telling her to make the arrangements as soon as possible. He was not aware at that time what arrangements she made.

On about the 20th or the morning of 21 June 2005, the witness contacted Rafael Hui, saying that Thomas Kwok had asked him to call him. He described Rafael Hui in 2005 as an acquaintance.

When he mentioned $10 million, D1 immediately said it was not $10 million, but $10.8 million.  The witness did not ask why it was $10.8 million, but simply called Thomas Kwok to confirm if he would agree, which he did.  He then called Rafael Hui back immediately and D1 told him, “You know Ah Kwan?  I will ask him to call you, and you may deal with him directly.” 

The witness said he did not think there was anything suspicious about this because D1 and D5 were good friends and D1 may have been busy. The witness said he then received a call from D5, Francis Kwan, whom he had himself known for 8 or 10 years, and he told D5 that he would write a cheque to him directly.

Having ascertained D5’s full name, he then called his daughter and told her the name of the payee and the exact amount of $10.8 million.  How the cashier’s order was arranged, he did not know at the time, but he vaguely remembered D5 coming to his office in the afternoon of Friday, 24 June, or in the morning of Saturday, the 25th, after he had called D5 to say that the cheque was ready.  As to how D5 thereafter dealt with the cheque, he had no idea.”

42. Of Thomas Chan’s evidence in respect of his involvement in the surrender and tenancy agreements, the judge said:[5]

“ In the first or second week of June, Walter Kwok had spoken to him, telling him that D1 had resigned and his rental should therefore be fixed at the market rate and new leases signed as soon as possible. At Walter Kwok’s request, he then liaised with Iris Chiu. As a director of Harsco, he would sign on company documents from time to time, and there was nothing mysterious about signing these particular agreements.

….

The witness said that he had not done any calculation as to what 30 months’ rent would be for two flats at The Leighton Hill and had no reason to make a connection, assuming there is one, between the amount of the second cheque, dated 28 June 2005, for $4.8 million, given to him by D2, and the total amount of rent for the two units for 30 months.

As for the outstanding $2 million owed to him by Thomas Kwok, he did not ask for it and simply waited for Thomas Kwok to give it to him.” 

43. The judge went on to note that under cross-examination by the prosecution, Thomas Chan said:[6]

“…he did not know why Thomas Kwok had written a cheque for the amount of $4.8 million, nor did he see any connection between the amount and 30 months rent of two units at The Leighton Hill. It was simply a coincidence.

As for signing the surrender and tenancy agreements, he would write thousands of signatures a year. It was nothing special, since it was an existing tenancy and he would trust that a document was in order before signing it if it fell within the responsibility of the colleague who had prepared it.”

44. In his directions in respect of the law relevant, inter alia, to Count 5, the judge said:

“Before you can convict either or any of the defendants of the offence alleged in Counts 2, 3 or 5, you must be sure, firstly, that there was in fact an agreement between two or more persons for D1 to commit the offence of misconduct in public office.

…

And secondly, that the defendant whose case you are considering was a party to that agreement in the sense that (a) he agreed with one or more of the other persons referred to in the count, that the offence should be committed; and (b) at the time of agreeing to this, he intended that they should carry it out.”

45. Subsequently, the judge said:[7]

“So, members of the jury, having explained what these three counts mean, and what needs to be proved, can we look again, please, at the particulars of the offences of conspiracy to commit misconduct in a public office, and perhaps for this purpose use Count 2 as an example?

The allegation is that D1 and D2, between the dates specified, conspired together to commit a specified criminal offence. I have explained to you what is meant by “conspiracy” or “conspiring together”. You will have to consider whether there was such a conspiracy and whether each defendant was a knowing conspirator.

As to whether a named defendant was a knowing conspirator, assuming there was a conspiracy, is a particular issue in this case, for example on Count 5 where D4 and D5 say the prosecution have not established that they knew about the illicit purposes or purpose of the payments, while D3 says the prosecution have not established that he even knew about the payments.

The particulars go on to allege that the objective of the conspiracy, or conspiring together, was for D1:

“while the holder of a public office, namely Chief Secretary, to wilfully misconduct himself in the course of or in relation to [that] public office, without reasonable excuse or justification, by being or remaining favourably disposed to [SHKP] and/or its subsidiaries or associated companies, and/or Thomas Kwok, in return for a payment of HK$5 million.”

You will have to be sure that the offence which the conspirators are alleged to have agreed upon was one of misconduct in a public office as alleged, and that the defendant under consideration was party to that conspiracy.  And in doing so, you will have to go through the five elements of the offence of misconduct in public office I earlier gave you.  And that will engage you in an examination of the reason for the payment which the prosecution say is a bribe and the defence say is not a bribe or has not been proved to be a bribe.

If you are sure, in relation to Counts 2, 3 and 5, when considered separately, as I have instructed you, that there was a conspiracy between the conspirators named in that count for D1 to misconduct himself as Chief Secretary by being or remaining favourably disposed to SHKP or its subsidiaries or associated companies in return for the money specified in the particular count, and if you are sure the defendant under consideration was a party to that conspiracy, you will find that defendant guilty of the count concerned.

If you are not sure there was a conspiracy for D1 to misconduct himself, or not sure the defendant under consideration was party to such a conspiracy, you will find that defendant not guilty of the count concerned.” [Italics added.]

46. Mr Perry, QC submitted that the evidence given by Thomas Chan in respect of the $4.8 million cheque and the $2 million, for which he had not been reimbursed, was implausible.  He invited the Court to note, that no submission was made at the close of evidence that Count 5 should be withdrawn from the jury in respect of Thomas Chan.

47. There was force in Mr Perry submission that the case against Thomas Chan was stronger at the end of the defence case, as a result of the testimony of Rafael Hoi, Thomas Kwok and Thomas Chan, than it was that the end of the prosecution case.  Now, there was direct evidence from Thomas Chan that he had agreed to and implemented the request of Thomas Kwok to make arrangements for payments to be made to Rafael Hui at the end of June 2005.  Furthermore, he said that an indirect route of payment had been chosen for purposes of secrecy, albeit that he claimed that was in order to keep knowledge of the payments from Walter Kwok. Thomas Chan said that, at the request of Rafael Hui, he had made the payment of $10.8 million to a bank account of Francis Kwan.[8]  For his part, Rafael Hui said that Thomas Kwok had asked him to nominate a third-party to contact Thomas Chan to make arrangements for receipt of the payment.[9]  By contrast, Thomas Kwok denied that he had suggested to Rafael Hui that he use a third party in that way.[10]  Having regard to the evidence, if the jury rejected the explanations advanced in testimony by Thomas Chan, but accepted the evidence of his role in arrangements for payments to be made to Rafael Hui, there was ample evidence on which the jury could be satisfied that Thomas Chan was a party to the conspiracy alleged in Count 5.

48. In my judgment, the arguments advanced on behalf of Thomas Chan in ground 3 do not involve questions of law only.  Rather, they involve questions of mixed law and fact.

Conclusion

49. I am not satisfied that the arguments advanced by Mr Winter at present in support of ground 3 are reasonably arguable.  Accordingly, I refuse leave to appeal on ground 3.

Ground 5

50. In his written submissions in support of ground 5, Mr Winter said that the crux of the argument was that by their verdicts of acquittal of Thomas Kwok and Raymond Kwok of Count 7, “the Jury had rejected the existence of the conspiracy alleged in Count7.  This is because the conspiracy specifically pleaded in Count 7 necessarily involved the participation of at least one of D2 or D3 and their money.”  He contended that Thomas Chan had been convicted of a conspiracy other than that which was alleged by Count 7.  He complained that the respondent had mis-characterised the argument as being an argument that the conviction of Thomas Chan on Count 7 was inconsistent with the acquittal on that count of Thomas Kwok and Raymond Kwok.

51. Count 7 of the Amended Indictment stipulated that all five defendants were parties to a conspiracy to offer an advantage to Rafael Hui.  Count 7 of the original indictment stipulated that Rafael Hui, Thomas Chan and Francis Kwan only were parties to that conspiracy.  The Particulars of Offence of Count 7 on the Amended Indictment averred that the five defendants:[11]

“…conspired together to offer Rafael Hui …an advantage, namely HK $11.182 million through a series of payments from Thomas KWOK, Raymond KWOK, Thomas CHAN and Francis KWAN…”

The Particulars of Offence of Count 7 on the original indictment averred that Rafael Hui, Thomas Chan and Francis Kwan:

“…conspired together to offer Rafael Hui… an advantage, namely HK $11.182 million through a series of payments from Thomas CHAN and Francis KWAN.”

The prosecution case

52. Mr Winter submitted that it was the prosecution case that in April 2008 Thomas Chan had been reimbursed by Thomas Kwok for the $12 million payment that he had made to Francis Kwan for payment to Rafael Hui in November 2007.  Further, that it was the prosecution case that in so acting, Thomas Chan was doing so on behalf of Thomas Kwok and Raymond Kwok.

53. In the prosecution Skeleton argument filed with the court, inter alia, in support of its application to amend Count 7 on the original indictment the prosecution case was stated to be that, in advancing monies to Rafael Hui via Francis Kwan, Thomas Chan was “…not acting on his own account”.  Rather, “D4 was acting as one of the Executive Directors of SHKP and, in particular, on behalf of the two individuals who controlled SHKP’s dealings with D1, namely D2 and D3.”[12]

54. Of the payments to Thomas Chan, it was asserted:[13]

“On 21 April 2008, that is a matter of days before D2 paid D4 HK $7 million from personal funds, D2 signed a cheque in favour of D4 on the counter Stanfield… a SHKP subsidiary, in the sum of HK $5 million. The payment was characterised as a bonus payment. The position is, therefore, that in April 2008, D4 received a total of HK $12 million from D2/SHKP, that sum matching the sum D4 had advanced to D5 for transmission to D1 in November-December 2007.”

55. The prosecution took a similar position in its written submissions in response to the ‘no case to answer’ submissions.  Having adverted to the fact that “…between 22 and 30 April 2008, $12 million was transferred by D2 to D4”, it was submitted that:[14]

“So far as D4 is concerned, acting as a conduit for money passing from D2 to D5, he is unlikely to have been acted on his own behalf…

In 2007, D4 was again acting as one of the executive directors of SHKP and, in particular on behalf of the two individuals who controlled SHKP’s dealings with D1, namely D2 and D3.”

56. In his closing speech to the jury, Mr Perry said:[15]

“Now, what about Thomas Chan’s 12 million? If we just look at A-55. Another coincidence that we have, not just the coincidence that Mr Chan’s 12 million, having been routed to Singapore and converted into US dollars, finds its way into the hands of Rafael Hui through Mr Francis Kwan. Not just those coincidences. But Thomas Chan’s evidence, and his account of this, is that he lost $12 million in 2007, paid out to Francis Kwan and never seen again. But by an extraordinary coincidence, in April the following year, he receives two payments which equal $12 million. On 22 April 2008, there’s the cheque of 5 million going across to his personal account at the HSB. But you will notice that the 7 million goes to another account. And the 5 million that went into the personal account, you will see doesn’t go across to Villalta as 5 million; it goes as 6, and then the 7 goes as 7. But the corporate entity Villalta, whose bank account had been used to pay the $12 million, happens to get $12 million in April 2008.”

57. Of the role of Thomas Chan, Mr Perry said:[16]

“Thomas Chan is charged in counts 5 and 7, and the prosecution say that he was involved in the process of paying the bribes. And his job was to ensure that the source of the payments could not be linked to his big bosses at SHKP.”

Mr Perry went on to say:[17]

“The prosecution say the involvement of Thomas Chan was to put in place the elaborate disguise that was to keep the payments secret, and to ensure that no-one, unless it was a determined investigator, could identify their source. This also explains the involvement of Francis Kwan.”

Defence case

58. Mr Winter submitted that the defence of Thomas Chan had been directed to address the prosecution case as articulated above.  So, in his closing speech he had said:[18]

“Can I turn to count 7.  The case is clear.  And unless you are sure that the $12 million paid by Mr Chan through Villalta in early November 2007 came from or was reimbursed by Thomas or Raymond Kwok, then the verdicts on count 7 is “not guilty”.  It has to come from at least one of them.  And that’s clear from what the prosecutor said, both in opening and closing: he wouldn’t be doing it on his own account, Mr Chan, he wouldn’t be paying the money through to the 1st defendant.  He’s going to be doing it for the people he’s worked for.  And in closing, he said Thomas Chan would not be out of pocket in relation to the 12 million.  So the case depends on the evidence that it came or was reimbursed from one or other of the Kwok brothers.”

59. Of the evidence of the involvement of Raymond Kwok and Thomas Kwok, in the events the subject of Count 7, Mr Winter went on to say:[19]

“Let me deal shortly with the allegation that the $12 million came from or was reimbursed by Raymond Kwok. There is simply no evidence and no basis for that allegation, full stop. They didn’t. It needn’t detain you any longer.

So let me deal with the suggestion or allegation that the 12 million came or was reimbursed by Thomas Kwok.  There is no evidence that Thomas Kwok even knew that the payment had been made.  The payment is made on 8 or 9 November 2007. No evidence he had anything to do with it, he even knew that it had taken place.  There’s no evidence that he asked for it to take place, or that he agreed that he would reimburse it.”

60. Having reminded the jury that Thomas Chan had received a series of payments: $5 million in each of May 2007 and April 2008; $6 million in October 2008 and $7 million in April 2008, Mr Winter suggested to the jury that they were being invited by the prosecution to indulge in “number plucking”.[20]

The summing up

61. At the outset of his summing up, the judge provided an overview of the evidence of money payments relevant to Count 7:[21]

“On 30 June 2007, D1 completed two years as Chief Secretary, and on 1 July 2007, was appointed a non-official member of the Executive Council. He remained a non-official member of ExCo until 20 January 2009.

Over a three-week period between 21 November 2007 and 12 December 2007, payments totalling $10.182 million were made from the same Hang Seng Bank account belonging to D5, to the same Standard Chartered Bank account of D1, as the payments in 2005. And a further $1 million was made from the same Hang Seng Bank account of D5 to the Standard Chartered Bank account of Top Faith Enterprises Limited, a company controlled by D1. The total payments made by D5 amounted, therefore, to $11.182 million.

On 9 November 2007, the sum of $12 million had been remitted by Villalta Incorporated to the DBS Singapore account of Wedingley Limited. And on 20 November, the day before D5 paid a cheque of $1 million to Top Faith, and another cheque of $3 million to D1’s Standard Chartered Bank account, the sum of US$1.543 million was remitted from the Wedingley Limited account to D5’s time deposit with the DBS Bank in Hong Kong, where it was split into two sums and placed on deposit. None of these facts is disputed.

It is also not in dispute that about five months later, on two days in April 2008, Thomas Kwok paid two cheques to Thomas Chan, one for $5 million, on 22 April 2008, the other for $7 million, on 30 April 2008.  Nor is it disputed that on that same day, 30 April 2008, Thomas Chan transferred a total of HK$13 million into his Villalta Incorporated account.  And nor is it disputed that on 7 November 2008, D2 paid a further $6 million to D4.”

62. Then, the judge identified the issues arising:[22]

“What is disputed, and one of the central issues you will ultimately have to decide in relation to this matter, which is Count 7 on the indictment, is whether the payments of $11.182 million made to D1 were bribes, as the prosecution allege, for which D4 was later reimbursed with payments from D2; or whether the payments from D5 to D1 might be unconnected with or have nothing to do with the payments from D2 to D4.

If they were bribes, as the prosecution allege, the issue then arises as to who knowingly participated in the plan to pay them.”

63. Later in his summing up, the judge addressed the ingredients of the offence alleged in Count 7 in detail.  In doing so, he reminded the jury of the Particulars of Offence, including the averment that the conspirators conspired to offer an advantage of $11.182 million to Rafael Hui “through a series of payments from D2, D3, D4, and D5”.[23] Of the respective cases, he said:[24]

“The prosecution invite you to infer from the facts of this case that each defendant must have known of all of those factors and was a knowing participant in the conspiracy, as demonstrated by the elaborate way that very substantial and secret payments were arranged and paid. They say the flowchart at A-55 explains exactly what was going on, and that each defendant must have known what was going on.

The defence say you cannot be sure there was a conspiracy to pay Rafael Hui bribes, or that a particular defendant was a knowing member of that conspiracy, or that the money D1 received in November and December 2007 was connected with the payments made in April 2008.  They say you cannot be sure there is a connection between the right side of the flowchart and the left.  And D3, of course, says he is not mentioned in that flowchart or indeed the one at A-53.”

64. Finally, in reminding the jury of the closing speeches, the judge said of the submissions made by Mr Winter in respect of Count 7:[25]

“In relation to Count 7, Mr Winter argues that the prosecution have failed to prove that the Count 7 moneys came from either D2 or D3, either by way of payment or reimbursement. In this regard, he says that the prosecution have seized on the $5 million bonus of April 2008 because, together with the $7 million, it conveniently adds up to 12 million. If, however, it is a genuine bonus, as the evidence suggests, then he says the prosecution theory falls away.

As for the $7 million which the prosecution would be left with, Mr Winter argues that it is perfectly understandable why Thomas Kwok would have wanted to give Thomas Chan $7 million, given what Thomas Chan had had to put up with from Walter Kwok over the years.”

65. Mr Winter acknowledged that, notwithstanding the way in which the prosecution had put its case on Count 7 and, more particularly, his response on behalf of Thomas Chan, he did not ask the judge to direct the jury that they were to acquit Thomas Chan, if they found that neither Raymond Kwok nor Thomas Kwok were parties to the conspiracy alleged in Count 7.  He said that having made it perfectly clear what his case was in his closing speech, which was faithfully reflected by the judge in his summing up, “I took a strategic, tactical decision, as it were, that I did not need to go any further than that.  That is the full answer to it.  But, even if I was wrong, so what?  They have convicted the defendant of a matter that he did not defend.”

66. The judge gave the jury the standard Specimen Directions in respect of their separate consideration of the cases of each of the defendants on each count:[26]

“In this particular case, there are five defendants, and eight counts on the indictment. You must consider each count separately, and the case against and for each defendant separately on each count. The evidence concerning each count and each defendant is different, and therefore your verdicts need not be the same. That is not to say that the evidence relevant to one particular count may not also be relevant to another count on the indictment.”

67. The judge went on to say:[27]

“However, you must bear in mind that the case and evidence against and for each of the defendants is different. Just because you are sure one defendant is guilty of one particular count does not mean that another defendant who is jointly charged with him in the same count is also guilty. The evidence against the other defendant may be different. So you must reach separate verdicts on each count against each defendant concerned, having focused on each count and each defendant separately, and having formed a separate decision about each count and each defendant.”

68. As Mr Perry pointed out, the evidence against the various defendants in respect of Count 7 was quite different.  Rafael Hui, Thomas Chan and Francis Kwan were all involved directly in the payments in question.  It was Thomas Chan’s case that the payment by Villalta of $12 million to Wedingley on 9 November 2007 was an investment in a business introduced to him by Francis Kwan in which the primary product was a hangover cure, AlcolOut.  The Longally agreement evidenced the agreement.  He had no idea that the monies were paid by Francis Kwan to Rafael Hui.  For his part, Rafael Hui said that Francis Kwan had told him in November-December 2007 that he had been told by someone on the Mainland to receive a sum of money on behalf of Rafael Hui.  He had no idea of the provenance of the monies paid to him.

69. Thomas Kwok testified that the payments to Thomas Chan in 2008 were two payments of bonuses he authorised and a payment of $7 million to compensation for his mistreatment at the hands of Walter Kwok.  Of that evidence, the judge said:[28]

“The witness then explained the three payments totalling $18 million made to D4, Thomas Chan, in 2008. He said the first payment, of $5 million in April 2008, was D4’s bonus for 2008. He had forgotten to pay D4 his bonus because of the business about Walter Kwok, so CH Tang had written the note at page 71 of D4’s defence bonus bundle, to remind him about the bonus. He described it as Thomas Chan’s normal bonus.

As for the $7 million cheque made payable to Thomas Chan on 28 April 2008, the witness explained that from 2003, his elder brother had been particularly hostile towards Thomas Chan. At two board meetings, he had publicly accused him, without any evidence, and in insulting language, of doing improper acts. He had also tried to poison their mother’s attitude to a person who had been his father’s right-hand man and who had contributed so much to the company over many years. And Thomas Chan, he said, had played a courageous role in dealing with the ransom in 1997, yet Walter Kwok seemed ungrateful and biased against him.

Thomas Kwok had asked his mother to apologise on behalf of their family, and to reassure Thomas Chan that she and the family trusted in him. But evidently his mother did not think that was necessary. Accordingly, Thomas Kwok believed that the Kwok family should compensate Thomas Chan and let him know that the family supported him.

The witness told us of a dinner to which he had invited the executive directors. He took Thomas Chan aside during that dinner, or during that party, and apologised to him on behalf of the Kwok family, saying that they had something to show their appreciation. Mr Kwok said that he later considered how much he should give him and settled on the figure of $7 million. He then asked his secretary to prepare a cheque for him, which he handed to Thomas Chan in person, saying that his elder brother had wronged him, and the cheque was from him personally to show his appreciation.

In relation to the $6 million which the witness had authorised by memorandum of 17 October 2008, which is at bundle I, page 268, he said that Thomas Chan had just been cleared of any allegation against him, and he thought that D4 should be paid his bonus for 2008-2009 in advance. All of Thomas Chan’s subsequent annual bonuses were $6 million.

Finally, he said that none of these payments were bribes, nor were they paid because Rafael Hui was SHKP’s man, nor did Rafael Hui, in government, favour him or his company.  He was unaware of any private investments or dealings between Thomas Chan and Francis Kwan in 2007 or 2008.”

70. As Mr Perry pointed out, in sentencing Thomas Chan on Count 7, in response to submissions advanced in mitigation by Mr Winter,[29] the judge addressed the issue of whether or not the verdicts of the jury on Count 7 were inconsistent:[30]

“In respect of count 7, I do not, with respect, agree that the jury’s verdict is inconsistent with my directions. Indeed, the verdict would seem to me to be a faithful application of the directions as to the separate consideration of verdicts and counts as between each alleged conspirator, and the standard of proof to be applied in relation to the issue of conspiracy.

Because of the issue of the $5 million bonus and/or the issue of the $7 million gratuitous payment, the jury may well have been unsure on the questions of how and when and who reimbursed the $12 million which had been transferred from Villalta Inc to Wedingley Ltd in Singapore on 9 November 2007, and to D5 11 days later, if indeed there was a reimbursement.

What the jury must clearly have been sure about is that the money did not come from Beijing, and that the Longally agreement was a sham.  They would have been sure there was a conspiracy to bribe D1, of which D4, and, for that matter, D5, were a part.  They were simply unsure how and when D4 got the money.”

71. In my judgment, ground 5 does not involve a question of law only.  Rather, it involves questions of mixed fact and law.

Conclusion

72. I am satisfied that Mr Winter advances reasonably arguable grounds of appeal in ground 5.  In particular, at issue is the nature and ambit of the conspiracy particularized by the prosecution.  In asserting that Raymond Kwok and Thomas Kwok were connected with the monies paid to Rafael Hui did those particulars state an essential element of the conspiracy which the prosecution sought to prove?[31]  Was Count 7 made out if the jury was satisfied that Thomas Chan had conspired with others, but not Raymond Kwok and Thomas Kwok, to offer an advantage to Rafael Hui, although not satisfied that the advantage was connected with Thomas Kwok and Raymond Kwok?  Accordingly, I grant leave to appeal on ground 5.

Grounds 6, 7 and 8

73. Grounds 6 and 7 of the grounds advanced on behalf of Thomas Chan are concerned with the time after which the jury had retired to their verdicts.  First, ground 6 is concerned with the length of time during which the jury were permitted to deliberate on each of the days of their deliberation.  Secondly, ground 7 is concerned with the direction the judge gave the jury towards the end of the fourth day of their deliberation when asked for assistance, having been told “no verdict can be confirmed.”  By ground 8, it is submitted that in all the circumstances the convictions of Thomas Chan on Counts 5 and 7 are unsafe and unsatisfactory.  In his written submissions, Mr Winter asserted that to be the case on the basis that the prosecution had deliberately introduced “rank prejudice” into the case by “repeated reference to the fact that D4, D2 and D3 were property developers.”

74. The jury retired to deliver their verdicts at 11:41 a.m. on Monday, 15 December 2014.  On the direction of the judge they ceased their deliberations and retired at 8:40 p.m. that day.  On each of the succeeding days, including Friday, 19 December 2014 the jury resumed their deliberations at 9:30 a.m., after the court had been reconvened and they have been invited to retire to do so.  On the direction of the judge, the jury ceased their deliberations at 8:19 p.m. on Tuesday, 16 December 2014; 8:20 p.m. on Wednesday, 17 December 2014; and at 8:06 p.m. on Thursday 18 December 2014.  The jury returned their verdicts at 2:44 p.m. on Friday, 19 December 2014.

75. After the jury had retired, the judge informed counsel:[32]

“If we hear nothing until this evening, I’m not going to let them continue their discussions too late, but equally it seems to me instructing them to go to bed in our accommodation at 8 o’clock is rather early. So I shall call them back in at about 8:45 p.m.”

76. At 8:30 p.m. on 15 December 2014 the court resumed, in the absence of the jury.  The judge informed counsel that during the course of the day his clerk had received an e-mail from those representing Thomas Chan drawing the Court’s to two authorities, apparently relevant to the issue of when a jury should be directed to cease their deliberations.  The judge said:[33]

“In one, it is said obiter that juries should generally cease deliberating at about 8 o’clock, and the other, whilst agreeing that as a general rule of thumb, juries should not be deliberating after 8 pm, it is said that what steps a judge must take and when is case- and situation-sensitive. I wish to make clear that I have the conduct of this case. I am fully aware of these authorities and the concerns which underlie their sentiments. Had I not been, I would not have made the remarks I did this morning about the note at the top of the jury form.

The jury had their dinner delivered at 6.50 pm, as a matter of record. They have not sought any assistance or indicated any difficulty, either before or after their dinner. And it is a relatively young jury of nine persons. In my experience, juries in these kinds of cases, by which I mean cases where there are multiple defendants and several different issues to resolve, do not like to be sent to bed prematurely by a judge. Indeed, in one case, a jury of nine asked, when I attempted to dispatch them at 8 o’clock, if they could continue until 10 because 8 pm was too early to break. And in another case, and indeed in other cases, there is anecdotal information that jurors have complained about being sent to bed too early with nothing to do, when they were beginning to make progress.

So my own view, and let me clear about it, of this particular jury and this particular case, is that 8.45 pm would have been a suitable time to ask them to cease their deliberations.  As it is, I’ve called them here at 8.30 and provided they have arrived, I will give them the appropriate direction.”

77. Thereafter, the jury returned and the judge directed them to cease their deliberations, informing them that the court would reconvene at 9:30 a.m. the following morning, after which they would be invited to resume their deliberations.  That was the pattern followed in the following few days with the jury commencing their deliberations each morning after the court had been reconvened and they had been asked to resume their deliberations and then, later in the day, being directed by the judge to cease their deliberations at the times specified earlier.

78. In the judgment of Bokhary PJ, with whom all the other judges agreed, in the Court of Final Appeal Chan Kar Leung v HKSAR[34] the issue of the time at which a jury was to be directed to cease its deliberations and retired for the evening was addressed:

“This jury began their deliberations at about 10 minutes past noon.  At 10:35 that night they were back before the trial judge for further directions on a question which they had sent him.  He gave them those further directions, and then told them to continue their deliberations even at that time of night, saying this : “some judges take the view that by 10 pm, any jury should be asleep, but I don’t take that view”.  As to that, we endorse the broadly held view that jurors should generally cease deliberating by about 8 o’clock at night and then rest overnight before resuming their deliberations together after breakfast the following morning.  That is the view on which trial judges should act.”

79. The issue was revisited in the judgment of this Court delivered by Stock JA in HKSAR v Mak Wing Cheung[35], in which the applicant’s conviction was quashed.  In the case, the applicant was convicted of an offence of conspiracy to traffic unlawfully and dangerous drugs by a majority verdict of the juryof of 5:2 delivered at midnight, after the jury began to consider their verdict at 11:39 a.m.  Having discussed the matter with counsel, at the direction of the judge the jury returned court at 10:20 p.m.  Then, he made enquiries of them, inter-alia, as to whether or not there was “any possibility of their reaching agreements soon.”  The judge having explained that by “soon” he meant within “one hour, or even one and a half hours”, the jury responded that they had reached agreement in respect of one of the defendants and thought that agreement could be reached in respect of the other defendants in that time period.  Then, the jury retired to deliberate further.

80. Of those circumstances, Stock JA said:[36]

“…but we nonetheless disapprove of the fact that a jury was left for ten and a half hours with no inquiry whatsoever as to progress, and with no hint to them as to when they might find any relief from their deliberations, and the comments to which we refer were singularly inappropriate.

As a general rule of thumb, juries should not be deliberating after 8 p.m.: see paragraph 15 of Chan Kar Leung.  What steps a judge must take, and when, is case and situation sensitive, but we are satisfied that in this case nothing justified simply leaving this jury sitting without a break for so long without any inquiry being made of them, or any indication to them as to how matters might progress.” [Italics added’]

81. The reference to the judge’s ‘comments’,  was to the fact that when the jury were brought back to court at 10:30 p.m. and told of the possibility of staying overnight in the court building the judge had said, “…how uncomfortable the rooms were and, further, that the judge had once waited up for a jury until 1 a.m.”

82. Clearly, the observation of Stock JA that,“What steps a judge must take, and when, is case and situation sensitive” resonates with common sense.  A trial judge is best placed to judge the time at which it is appropriate to direct the jury to cease their deliberations on any particular day.  That is all the more so in a case of the length of this trial, where the judge has had the opportunity over many months to become well acquainted with the jury.  The jury retired to consider their verdicts on Day 127 of the trial and delivered their verdict on Day 131.  As was made clear, in the judgments of both Bokhary PJ and Stock JA, their observations that a jury ought to cease its deliberations at about 8 p.m., provide general guidance to trial judges.  Those observations are not ‘black letter’ law.

83. I am satisfied ground 6 does not raise a question of law only. Rather, it raises a question of mixed fact and law. 

84. I am satisfied that the times at which the jury were directed by the judge to cease their deliberations on each of the days on which they deliberated were procedural matters of case management, which lay squarely within his judicial discretion.  Although Mr Winter had provided the judge with the authorities that support the proposition that generally a jury should cease its deliberations about 8:00 p.m., he did not raise the matter again with the judge.  That is not surprising, since it is to be noted that judge gave his directions to the jury that they should cease their deliberations on succeeding days in a range of time with minutes of 8:00 p.m.; namely 8:40 p.m.; 8:19 p.m.; 8:20 p.m. and 8:06 p.m.

Conclusion

85. I am not satisfied that the arguments presently advanced in support of ground 6 by Mr Winter are reasonably arguable.  Accordingly, I refuse to grant leave on ground 6.

Ground 7

86. At 7:44 p.m. on 18 December 2014 the court resumed, in the absence of the jury, to address a written question posed by the jury, namely:[37]

“We have focused on one count (count 7) for much time, but no verdict can be confirmed. We would like to seek for further assistance. Thank you very much.”

87. First, the judge discussed the matter with counsel.  At the outset, the judge said,[38] “…it seems that they cannot reach a verdict on count 7.  That’s as I understand it.”  The judge went on to note the direction that he had given the jury that, in the event that they were divided 6:3 or 5:4, they were to inform the court that they were divided, but not of the numbers, in which event he had told them that “… I will direct you further.”  Having heard from Mr Perry, the judge repeated that view, [39] “…the way I read it is that they can’t reach a verdict on count 7 at the moment.”

88. Mr Kelsey-Fry, QC, for Raymond Kwok, with whom Mr Winter said he agreed, said that “it seems likely” that the jury’s note was directed to the judge’s earlier direction that, if the jury was divided in that way, he would “direct you further.”

89. In response, the judge said that in those circumstances, “…then the standard direction that arises in the case of a split becomes appropriate?”  For his part, Mr Kelsey-Fry confirmed that he was aware that the judge was referring to Specimen Direction 55.3.  Finally, the judge said[40]:

“Well, I wouldn’t depart from what is said there. The only thing it adds is, if, after full discussion you cannot reach agreement, you must say so.”

90. It was in those circumstances that, no counsel having disagreed, the jury having returned to court, the judge read out their written question and then directed them:[41]

“Now, members of the jury, you may remember that when I sent you out on Monday morning, I told you that a verdict of 6:3 or 5:4 either way did not constitute a verdict, and should that position arise, that you were to inform the court by a written note of the fact of that split, but not the numbers in favour of or against a particular verdict, and I shall direct you further. Now, I am assuming that the note that you have passed to me has been written by you, the jury, as a result of that direction that I gave you. I see some of you nodding. If I am wrong, if there is a specific matter on which you want further assistance, such as, for example, evidence or a direction, then I would ask you to put that into writing. But if the purpose of your note is because you cannot reach a verdict on count 7 because you are split in the way that I have described, either by 6:3 or 5:4, then the direction that I have to give you is this, and it does involve a certain amount of repetition. But nevertheless, this is what I am required to tell you.

I have to ask you to give further consideration to your verdict on count 7, and I have to repeat the direction that I gave you earlier. Each of you has taken an oath or an affirmation to return a true verdict according to the evidence. And that is a responsibility that you must fulfil. Each of you takes into the jury box your individual experience and wisdom, and your task is to pool together that experience and wisdom, and you do that by giving your views, and listening and giving due consideration to the views of others.

There must necessarily be discussion and debate, as a result of which an individual member of your jury panel may be persuaded to accept a view which he or she did not previously hold. But, of course, you must at all times stay true to your oath or affirmation to give a true verdict according to the evidence.

However, if, after full discussion, you cannot reach agreement, then you must say so.

Now, members of the jury, that of course repeats part of a direction I gave you, and I am sure you will have been conducting that exercise already.  But it also tells you that if, after continuing to discuss the matter in that way, you still cannot reach agreement, then you must say so.” [Italics added.]

91. Having given the jury that direction the judge said:[42]

“It seems to me that…the best thing is to stop talking and thinking about it tonight, to take a break, and to resume tomorrow, to give it full discussion, and if you cannot, after the full discussion, reach a verdict, then as I have said, you must say so.”

92. On the following morning, 19 December 2014, the judge said to the jury: [43]

“As I told you last night, I would like you to return to consider your discussions in the light of the direction that I gave you. Because it was late, I am just going to repeat what I said. I am sure you’ve already got it, but I just want to make it clear, having had your rest and refreshment, and as you go back to consider these matters on this new day.”

93. Then, after the judge repeated the direction that he had given the previous evening, the jury retired to continue their deliberations.  At 2:47 p.m. on 19 December 2014, the jury began delivering their verdicts in respect of all of the defendants and all of that counts on indictment.

94. At the concluding stages of the summing up, the judge had given the jury the directions set out at Specimen Direction 55.1, paragraphs 1 and 2.  He directed them:[44]

“Each of you has taken an oath or affirmation to return a true verdict according to the evidence. That is a responsibility you must now fulfil. Each of you takes into the jury box your individual experience and wisdom. Your task is to pool together that experience and wisdom, and you do that by giving your views, and listening and giving due consideration to the views of others.

There must necessarily be discussion and debate, as a result of which an individual may be persuaded to accept a view which he or she did not previously hold. But, of course, you must at all times stay true to your oath or affirmation to give a true verdict according to the evidence.

You should strive to reach a unanimous verdict; that is, a verdict upon which you are all agreed, whether guilty or not guilty.  If, however, you are unable to do so, then I am entitled in law to accept from you a verdict upon which at least seven of you are agreed; in other words, a verdict of 8 to 1 or 7 to 2.  A verdict of 6 to 3 or 5 to 4 either way does not constitute a verdict, and should that position arise, inform the court by a written note of the fact of that split, but not the numbers in favour of or against a particular verdict, and I shall direct you further.”

95. As footnote 1 states, the direction at paragraph 1 is taken from the judgment of Li CJ in Tam Kin Hon v HKSAR, which he said[45]:

“Directions on the decision-making process should usually be followed by directions on the subject of unanimous and majority verdicts.

Judges may of course choose such language as they think fit in formulating appropriate directions in accordance with this judgment. It may be of assistance to indicate that directions along the following lines are considered to be appropriate.

“Each of you has taken an oath to return a true verdict according to the evidence. This is a responsibility you must fulfil. Each of you takes into the jury box your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening and giving due consideration to the views of others. There must necessarily be discussion and debate, as a result of which an individual may be persuaded to accept a view which he or she did not previously hold. But of course you must at all times stay true to your oath or affirmation to give a true verdict according to the evidence. If after full discussion you cannot reach agreement, you must say so”.”

96. Li CJ went on to say that the direction was to be preferred to the existing Specimen Direction.[46]  The latter direction was based, in part, on the direction suggested in the judgment of Lord Lane CJ in the Court of Appeal of England and Wales in R v Watson [47]and referred to a duty of a juror “not only as individuals but collectively”.  Also, Li CJ said:[48]

“In the Hong Kong context, the use of the phrase “give and take”, even with the addition of the qualifying words such as “within the scope of your oath”, is best avoided.”

97. Further, Li CJ noted the observations of Stock JA in HKSAR v Chan Ka Man[49], that the comment to the Specimen Direction stated there will rarely be a need for such a direction, and the observations in Watson[50].  There, Lord Lane CJ said that, whilst the giving of the direction was a matter in the discretion of the judge, “There will usually be no need to do so.”

Li CJ concluded:[51]

“Whatever may be the position in relation to the giving of the specimen directions in full, judges may well consider that it would usually be of assistance to the jury to direct them as part of the summing up on how they should go about deliberating as a jury. It should be borne in mind that jurors are often serving for the first time and such directions may be helpful to them.”

98. Clearly, as evidenced by the footnote to Specimen Direction 55.1 to which reference was made earlier, that sentiment is reflected in the Specimen Direction addressing the concluding remarks to the jury in the summing up.  As the judge noted that direction, which is to be given in the summing up, is not the full direction suggested by Li CJ, given that it omits the final sentence, “If after full discussion you cannot reach agreement, you must say so.”  Rather, it is crafted to connect with the direction in respect of permissible majority verdicts, directing the jury to inform the court if the jury is divided in a way which does not permit the delivery of a majority verdict and informing them that, in those circumstances, the court will give further directions.

99. The further direction, which the judge gave the jury, is a repetition of the original direction but with the addition of the concluding sentence, “If after full discussion you cannot reach agreement, you must say so.”

100. Finally, Li CJ addressed the situation in which the jury raised with the court their difficulties in agreeing on a verdict.  Of those circumstances, he said:[52]

“Thirdly, where such a direction has been given, if the jury subsequently asks questions on the same subject matter, that is, the jury’s decision making process, it would be prudent for a judge to repeat or stay as close to the directions previously given where possible. If in response to such questions, a judge then uses different terms to convey the same meaning, depending on the circumstances, the risk of confusion or misunderstanding may arise.”

101. It is clear that in Hong Kong the Watson direction has been rejected.  The Court of Final Appeal has provided an alternative direction to the jury as to the decision-making process.  The jury are to be given directions as to the decision-making process as part of the summing up.  In contrast to England and Wales, it is appropriate for the jury to be directed on majority verdicts as part of the summing up.[53]  On occasions after the summing up has been delivered, when the jury ask questions on the decision-making process, judges are enjoined, “…to repeat or stay as close to the directions previously given where possible.”[54]

102. Although complaint is made by Mr Winter that the judge was wrong to describe the direction that he gave the jury in response to the question as the “standard direction”, he made no such complaint to the judge.  As is clear from the above analysis, there is no merit in that complaint.

103. I am satisfied that ground 7 does not raise a question of law only.  Rather, it raises a question of mixed fact and law.

Conclusion

104. I am not satisfied that the arguments advanced by Mr Winter at present in support of ground 7 are reasonably arguable.  Accordingly, I refuse leave to appeal on ground 7.

Ground 8

105. The only reference in the transcript of the proceedings, to which Mr Winter referred the court, in support of his submissions that the prosecution deliberately introduced “rank prejudice” before the jury by reminding the jury that Thomas Kwok, Raymond Kwok and Thomas Chan were property developers was a passage from the cross-examination by Mr Perry of Thomas Chan.[55]  In context, Mr Perry was canvassing with Mr Thomas Chan whether or not the circumstances in which he had been asked to make a payment of $10 million to Rafael Hui were suspicious.  In face of Thomas Chan’s reaffirmation that he had no reason to suspect any corruption, Mr Perry suggested that he could provide Mr Thomas Chan with “some reasons to suspect corruption.”  Then, he pointed out, and the witness agreed, that Thomas Kwok and Raymond Kwok were property developers.  Mr Thomas Chan demurred in face of the suggestion that he was property developer.  He said he was an employee.  He agreed with the suggestion that all three of them were friends with Mr Rafael Hui and that the latter was a powerful and influential political figure, who was about to become the Chief Secretary.  There followed the following interchange:[56]

“Q. And Thomas Kwok is asking you to make a payment to the man who is about to become the Chief Secretary?

A. Yes. To pay him by using a cheque.

Q. And there’s no documentation evidencing the reason for the payment?

A. Correct.

Q. And there are things going on within government that concern SHKP?

A. I don’t think at that time, something important was going on.

Q. What about West Kowloon?

A. West Kowloon, it was a joint venture with Cheung Kong. It was Walter Kwok who was handling it himself. And regarding that project, you can see the results. The government has taken it back.

Q. Do you think, with all those things I’ve just mentioned, Mr Chan that it looks more than suspicious?

A. No.”

106. It is to be noted that at the time there was no objection to that line of cross-examination.  That is hardly surprising.  Mr Perry was merely articulating in cross-examination of Thomas Chan the prosecution case.  In particular, that the payment was a ‘general sweetener’ to Rafael Hui, who was soon to occupy a position as a  public servant in which he would be in a position to perform or abstain from acts to the benefit of a SHKP.

Conclusion

107. I am not satisfied that the arguments advanced by Mr Winter at present in support of ground 8 are reasonably arguable.  Accordingly, I refuse leave to appeal on ground 8.

108. In the result, I grant leave to appeal against conviction to Thomas Chan on ground 5, but refuse leave to appeal on the other grounds opposed by the respondent.  Ground 1 and 4 are concerned with questions of law only, for which leave is not required.

Francis Kwan

Ground 1

109. At the trial, those representing Francis Kwan objected to the admissibility of two sets of documents seized during a search of Francis Kwan’s home on 19 March 2012 In the course of a voir dire the judge received evidence from three ICAC officers, in particular as to the circumstances of the seizure of the manuscript note (exhibit P822/exhibit VD P29), together with another document (exhibit VD P30), from the home of the applicant or 19 March 2012 and their subsequent use.  Francis Kwan gave evidence in the defence case, but no other witness was called by the defence.  There was no dispute that Mr Joseph Chan, Francis Kwan’s solicitor, was present at the time of the seizure of the documents, as he was on 20 March 2012 at a subsequent video recorded interview of Francis Kwan by officers of ICAC, at which the documents were produced and questions asked of Francis Kwan, inter-alia, about the manuscript document.

110. Exhibit P822 was in the manuscript in English and Chinese characters.  In certified translation it read:[57]

“1. Source of funds, time and possibility of tracing (1st and 2nd transfer)

2. Section 14

(i) [Chinese characters] Li On Man

(ii) [Chinese characters] CHAN Wan Chu

(iii) Dr Peter Choy

(iv) Henry

3. Investment portfolio management

(i) [Chinese characters] joint-venture

(ii) [Chinese characters] Using client’s account (password) [Chinese characters] to place orders, split and share at 50/50

(iii) [Chinese characters] pointing nose, clients to place orders by themselves and then split and share

4. Legal advice [Chinese characters] do not assist in the investigation

 5.  Convicted-years of penalty?”

111. There was no dispute that on 13 December 2011 Mr Francis Kwan had been interviewed by ICAC officers in respect of six cheque payments made by him to the bank account of Rafael Hui in June 2005.  ICAC officer Hazel Law testified that Francis Kwan had said that those payments were a loan to Rafael Hui.  For his part, Francis Kwan said that he had told the ICAC officers said the payments were “possibly” loans he had made to Rafael Hui or “offsets” in respect of other monetary transactions between the two of them.  He said that following that interview, on 19 December 2011, he took legal advice from a lawyer, Mr Chung, for which he paid $30,000.  He consulted him on two subsequent occasions before he left Hong Kong for Vancouver on 13 February 2012.

112. Francis Kwan said that he made arrangements whilst he was in Canada with Mr Joseph Chan, a solicitor, by e-mail on 10 March 2012 to meet him on 17 March 2012 to receive professional advice.  He said that he had made both sets of documents, VD P29 and VD P30 documents and had done so in order to seek legal advice from Mr Joseph Chan. He wrote the manuscript note, exhibit P822/VD P29, on an aeroplane as he flew from Vancouver to Hong Kong, arriving in the latter on 17 March 2012.  In the afternoon, he had a meeting at the Dynasty Club with Mr Joseph Chan, at which he produced both documents to Mr Joseph Chan in the course of seeking legal advice.

113. In cross-examination, the prosecution suggested to Francis Kwan, which he denied, that the documents had not been prepared for legal advice.  Rather, it was suggested that the manuscript note, exhibit P822 /VD P29, was a note to himself in which he considered possible explanations that he could give for the payments, so as not to include any reference to Thomas Chan.  Francis Kwan denied the suggestion.[58]

114. Whilst there was no dispute that the documents, including the manuscript note exhibit P822/VD P29 had been shown to the applicant in the video recorded interviews of 20 March 2012, Francis Kwan said that he had not read the documents and had declined to answer all questions.

115. As Mr Perry pointed out, on 14 April 2014, after notice of objection to the admissibility of VD P29 and VD P30 had been given to the prosecution by letter dated 11 April 2014 , the prosecution stated its position as to any waiver of legal professional privilege by Francis Kwan:[59]

“to the extent that any evidence produced by D5 on the voie dire involves a waiver of privilege, then that of course, we accept, would be limited for the specific purposes of determining the legal professional privilege issue in the voir dire.”

116. In his Ruling, the judge set out an undisputed chronology of factual events in respect of both documents.  Relevant to exhibit P822/exhibit VD P29, he said:

(i) on 19 March 2012, the documents in question were seized from D5’s home in the presence of D5’s solicitor;

(ii) on 20 March 2012, during an interview with the ICAC in the presence of his solicitor (Exh VD P16), the two documents were specifically produced and questions asked as to their meaning and contents;

(iii) on 26 March 2012, D5 was served by ICAC with a copy of the documents seized on 19 March 2012;

(iv) by 28 February 2013, Exh VD P29 was served by the prosecution on all defendants and the Court as committal evidence (with its certified translation being served on D5’s solicitor on 15 August 2013);

(v)  …;

(vi) on 31 October 2013, the prosecution referred specifically to Exh VD P29 in its written case summary, at paragraph 284;

(vii) …;

(viii) …;

(ix) …;

(x) on 11 April 2014, the Court was notified for the first time by letter from D5’s solicitors (copied to all parties) that D5 would be objecting to the production and/or use of the two documents in question on the basis that they were covered by LPP.

117. Of those events, he observed:[60]

“It will be seen from this chronology that the claim that the documents in question were covered by LPP took more than two years to make, notwithstanding that D5 has been represented since his arrest and notwithstanding that his legal representatives have known about the seizure of these documents since 19 March 2012.  Remarkably, the documents were specifically examined during the ICAC interview of 20 March 2012 conducted in the presence of D5’s solicitor. In particular, at Entries 114 and 116, the officer conducting the interview referred to one part of Exh VDP29 dealing with what was recorded on the document as “legal advice”.  Yet neither then, nor until 11 April 2014, has there been any suggestion from either D5’s solicitor or counsel that the document is covered by LPP.

Similarly, between Entries 100 – 112, D5 was specifically asked, again in the presence of his solicitor, about the entries on Exh VD P30.  Again there was no demur or issue raised by any lawyer until 11 April 2014, notwithstanding the significance that has been attached to this document by the prosecution in open court and by myself in my judgment of 13 February 2014.” [Italics added.]

118. Of those circumstances, the judge found:[61]

“I readily accept that a lay client may not himself see the significance or importance of LPP, but I cannot accept that a solicitor would have sat through an interview, in which a document with the words “legal advice” was specifically used to confront his client, without raising the matter with his client at the time in interview or immediately thereafter.  Even if that solicitor was succeeded by another, no legal practitioner coming into the papers in this case could conceivably have allowed a matter which is so obvious to be ignored for so long, if indeed there were the slightest hint that the documents might be covered by LPP.

Nor can I accept, if Exh VD P30 was shown by D5 to his solicitor at the Dynasty Club coffee shop meeting on 17 March 2012 for the purpose of legal advice, that the solicitor, who did not give evidence, would not have gone on high alert when that same document was produced by an ICAC officer at the interview with D5 three days later, on 20 March 2012.  Yet nothing was ever said or done about it by any solicitor until 11 April 2014.

It is true that errors do get made and I would be anxious not to hold such a mistake as not claiming LPP against the interests of a defendant, if I thought there was a possibility that a genuine mistake or misunderstanding might have occurred.  However, solicitors in Hong Kong are highly sensitive and rightly so to one of the very foundations of legal practice in this territory, namely the privilege that attaches to their dealings with their clients.  I cannot conceive in this particular case that any solicitor could have overlooked this matter for two years during which time the documents have been disclosed, commented upon in open court and incorporated (at least so far as one of them is concerned) in a legal judgment, if in truth there was the slightest possibility of the documents being covered by LPP.”

119. In the result, the judge determined:[62]

“I regret to say that I must unequivocally reject D5’s evidence that these two documents were prepared or used for the purpose of legal advice. The chronology to which I have referred is rather devastating evidence that the documents never were what it is now belatedly asserted they are.

Accordingly, I find as a fact beyond reasonable doubt that the documents in question are not covered by LPP and can be adduced and referred to at this trial.”

A consideration of the submissions

120. The judge’s ruling that exhibit P822 was admissible in evidence was made with the benefit of having received not only evidence from both prosecution and the defence on the issue in question but also submissions from counsel.  Clearly, it was a result of his evaluation of the evidence.  In particular, the judge had the benefit of receiving evidence from Francis Kwan on the vital issue of the purpose of making the document and the use to which it was put.  In that respect, his finding, in respect of both exhibit P822/VD P29 and VD P30, was trenchant:[63]

“…I must unequivocally reject D5’s evidence that these two documents were prepared or used for the purpose of legal advice. The chronology to which I have referred are rather devastating evidence that the documents never work on it now belatedly asserted they are.” [Italics added.]

121. As noted earlier, in effect the judge determined that it beggared belief, if the two documents enjoyed legal professional privilege, they having been used in the giving of legal advice on a conference between Mr Joseph Chan and Francis Kwan armed 17 March 2012, that could have been overlooked and no claim made to that effect when they were seized on 19 March 2012 and, more particularly, when Francis Kwan was questioned about them under caution on 20 March 2012 after he had been arrested.  Further, no such claim was made for over two years, during which time they were referred to openly and repeatedly.

122. In those circumstances, although the judge was clearly aware of the points taken in the closing speech of counsel for Francis Kwan as to the nature and content of exhibit P822/VD P29, it was not necessary for the judge to deal with those issues.  Such possible force as the points might have had, were subsumed in and traversed by his primary finding that the documents had not been “prepared or used for the purpose of legal advice”.  If they had been so used, a claim of legal professional privilege would have been made immediately by Mr Joseph Chan.

123. There is no dispute, that in these circumstances it is necessary for Francis Kwan to establish that the judge was “plainly wrong” in his finding of primary fact.

124. I am satisfied that ground 1 does not involve questions of law only.  Rather, it involves questions of mixed fact and law.

Conclusion

125. I am not satisfied that the arguments advanced at present by Mr Blanchflower in support of ground 1 are reasonably arguable.  Accordingly, I refuse Francis Kwan leave to appeal against conviction on ground 1.

126. I am satisfied that grounds 2 and 3 involve questions of law only, such that the leave of the Court is not required.

Grounds of appeal against sentence

Thomas Chan

127. In the grounds of appeal against sentence advanced on behalf of Thomas Chan, it was submitted that the total sentence of 6 years’ imprisonment was manifestly excessive.  Issue was taken with the stipulation by the judge of a starting point of 6 years imprisonment for “the instigator of a bribe” in a case such as in Count 5.  It was contended that Rafael Hui had not done anything for the money that he received that he would not otherwise have done.  It was submitted that 6 years’ imprisonment was the correct starting point for an offence where actual favour was shown.  Then, it was submitted that, given the judge’s acceptance that Thomas Chan was not an instigator of the payments and his role was to act as a conduit, the starting point of sentence ought to have been significantly lower that taken for the instigator.  Next, it was suggested that conduct the subject of Counts 5 and 7 was one crime and ought to have been sentenced as such.  Finally, it was submitted that the judge erred in failing to afford Thomas Chan a discount of sentence from that taking a starting point for Count 5 for personal mitigation.

128. No objection was taken by the respondent to the application of Thomas Chan to leave to appeal against sentence.

129. In approaching the task of sentencing the defendants after their convictions, and having alluded to the difficulties of the trial process itself, the judge said:[64]

“However, in all of that process, nothing has been more difficult than the sentencing of the defendants in front of me today. It is often said that sentencing is an art and not a science. If it were a science, it would no doubt be an easier exercise to conduct. But in truth, sentencing is one of the most difficult functions a judge can perform, particularly when dealing with offences where there are no guidelines beyond various expressions of judicial opinion in other cases dealing with the same offence, but with very different facts.

And it is particularly difficult when one is dealing with otherwise decent men, who are not young, but who have committed serious offences.” 

Conclusion

130. I am satisfied that the grounds of appeal against sentence advanced on behalf of Thomas Chan are reasonably arguable.  Accordingly, I grant leave to appeal against sentence.

[1] Section 82 of the Criminal Procedure Ordinance, Cap. 221 provides that:

“(1) A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction.

(2) The appeal may be-

(a) on any ground which involves a question of law alone; and

(b) with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Courtof Appeal to be a sufficient ground of appeal;”

[2] Appeal Bundle; Page 1458, page 6-7.

[3] Appeal Bundle; Page 1458, page 7A

[4] Appeal Bundle, pages 313-315.

[5] Appeal Bundle, pages 273-4.

[6] Appeal Bundle, page 321.

[7] Appeal Bundle, page 89 -91.

[8] Appeal Bundle, pages 314-5.

[9] Appeal Bundle, page 260.

[10] Appeal Bundle, page 290.

[11] Appeal Bundle, page 7.

[12] Appeal Bundle; Page 2429, paragraph82.

[13] Appeal Bundle,; Page 2431, paragraph 87(1).

[14] Appeal Bundle,; Page 2675, paragraph 90.

[15] Appeal Bundle; Page 2011, page 32

[16] Appeal Bundle; Page 2093, page 68.

[17] Appeal Bundle; Page 2094, page 72.

[18] Appeal Bundle; Page 2224, page 32.

[19] Appeal Bundle, Page 2225, pages 33-4.

[20] Appeal Bundle; Page 2226, pages 37-8.

[21] Appeal Bundle, page 44.

[22] Appeal Bundle, page 45.

[23] Appeal Bundle, page 95.

[24] Appeal Bundle, pages 99-100.

[25] Appeal Bundle, page 340.

[26] Appeal Bundle, page 52.

[27] Appeal Bundle, page 53.

[28] Appeal Bundle, pages 294-5.

[29] Appeal Bundle; Page 2305, page 66

“With regard to count 7, …we submit that it is inconsistent with your Lordship's directions to the jury and the way that the prosecution always put the case, that Mr Chan was not paying with his own money but was reimbursed.  Bearing in mind that  that was the clear way in which the case was put consistently by the prosecution, I invite your Lordship to sentence him on that basis.  Whoever the money came from, it was not his money.  He was, again, a conduit, the pipe routing that money for additional reasons of secrecy through to Mr Hui.”

[30] Appeal Bundle, page 363.

[31] R v Hancock [1996] 2 Cr App R 554.

[32] Appeal Bundle, page 2279; Day 127, page 40.

[33] Appeal Bundle; Page 2280, pages 42-43.

[34] Chan Kar Leung v HKSAR(2006) 9 HKCFAR 206, at paragraph 15

[35] HKSAR v Mak Wing Cheung (CACC 437/2003; unreported, 21 November 2006.)

[36] HKSAR v Mak Wing Cheung, paragraphs 17-18.

[37] Appeal Bundle,; Page 2284, page 1.

[38] Appeal Bundle, Page 2284, page 1-2.

[39] Appeal Bundle; Page 2284, page 4.

[40] Appeal Bundle; Page 2285, page 6.

[41] Appeal Bundle; Page 2285, page 7.

[42] Appeal Bundle; Page 2286, pages 9-10.

[43] Appeal Bundle; Page 2288, pages 1-2.

[44] Appeal Bundle, page 348.

[45] Tam King Hon v HKSAR (2006) 9 HKCFAR 206, paragraphs 28-29.

[46] Tam King Hon v HKSAR, paragraph 25 at footnote 1.

“Each of you has taken an oath to return a true verdict according to the evidence.  No one must be false to that oath, but you have a duty not only as individuals but also collectively.  That is the strength of the jury system.  Each of you takes into the jury box with you your individual experience and wisdom.  Your task is to pool that experience and wisdom.  You do that by giving your views and listening to the views of others.  There must necessarily be discussion and argument, and a willingness to give full consideration to the suggested logic of others, and if an individual is persuaded that there is a flaw in his own thinking, a preparedness to concede the flaw.  This is how agreement is reached.  But of course you must at all times stay true to your oath or affirmation and if after full discussion cannot reach agreement, you must say so.”

[47] R v Watson [1988] QB 690, at page 700 F-G.

“Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes in the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of the others. There must necessarily be discussion, argument and give-and-take within the scope of your own oath. That is the way in which agreement is reached.. If unhappily, 10] of you cannot reach agreement you must say so.”

[48] Tam King Hon v HKSAR, paragraphs 23 and 28.

[49] HKSAR v Chan Ka Man [2005] 1HKC 162, paragraph 8.

[50] R v Watson,page 700 H.

[51] Tam King Hon v HKSAR, paragraph 30.

[52] Tam King Hon v HKSAR, paragraph 30.

[53] Tam King Hon v HKSAR, paragraph 32.

[54] Tam King Hon v HKSAR, paragraph 30.

[55] Appeal Bundle; Page 1926, pages 53-4.

[56] Appeal Bundle; Page 1926, pages 54-5.

[57] Appeal Bundle, page 2830-3.

[58] Appeal Bundle; Page 961, pages 38-9.

[59] Appeal Bundle; Page 716, page 9.

[60] Appeal Bundle; Pages 743 (27-28), paragraphs 71-2.

[61] Appeal Bundle; Pages 743 (28-9), paragraphs 73-5.

[62] Appeal Bundle; Pages 743 (29), paragraphs 76-7.

[63] Appeal Bundle; Page 743 (29), paragraph 76.

[64] Appeal Bundle, page 359.