THE QUEEN v. MOK WEI TAK AND ANOTHER

Headnote

Offences under s.10(1)(a) Prevention of Bribery Ordinance: conduct of counsel: conduct of the judge: aid and abet.

__________

JUDGMENT

__________

Silke, J.A.:

1. I would preface this judgment by paying tribute to the manner of the presentation of this application by counsel and, in particular, to the manner, in which the applicants' solicitors, in conjunction with the Crown, prepared the voluminous papers placed before us.

2. Mok Wei Tak, a principal Government architect, was convicted, before Addison J. and a jury of an offence under Section 1b(f)(a) of the Prevention of Bribery Ordinance, Cap. 201. it was alleged that he, being a Crown servant, did maintain a standard of living above that which is commensurate with his present or past official emoluments during the period 1st November 1981 and 23rd November 1982.

3. Mok Chiu Yee Man, the wife of Mok Wei Tak, was convicted of aiding and abetting Mok to commit that offence.

4. Mok was sentenced to six years' imprisonment, a fine of $400,000 and ordered to pay 70% of the taxed costs of the proceedings. Mrs. Mok was sentenced to two years' imprisonment, a fine of $200,000 and ordered to pay 20% of the taxed costs of the proceedings. Both apply for leave to appeal against conviction and sentence.

5. While the Grounds of Appeal were numerous, they fall, broadly, within four main heads:

(1)	that the Crown did not confine itself to matters concerning a section 10(1)(a) offence but clouded the issue by, in effect, treating the offence as one under section 10(1)(b); and, in addition, the defence did not know what case it was they had to meet;
(2)	that by its insinuating corruption without any evidential basis, the Crown prejudice the holding of a fair trial;
(3)	that counsel then appearing for the Crown departed from his role as a Minister of Justice by conducting the case in a prejudicial and unfair manner;
(4)	that the judge took up the role of advocate for the prosecution by the nature of his interventions in the course of the trial and by the manner in which he directed the jury; the defence contends that the jury was so affected by the foregoing that the applicants did not have a fair trial.

6. In respect of Mrs. Mok, while those general grounds applied, there is an extra head which is that she should never have been indicted as an aider and abetter, for a section 10(1)(a) offence, of its very nature, cannot be aided and abetted.

7. We have been taken in careful detail by Mr. Hidden who, with Mr. Sujanai, appeared for the applicants in this Court, through the history of the proceedings, the conduct of the trial and the evidence of the witnesses.

History

8. The history of the proceedings is this: Mok was committed for trial before the Magistrate. Mrs. Mok was not. As a result of the Magistrate's refusal to commit her, the Crown applied for, and obtained, a Voluntary Bill and  it was upon that basis that she appeared for trial. At the committal proceedings, statements of a collection of witnesses - whom I shall call "the property development witnesses" - were presented to the Court. These, statements were also before the High Court Judge who issued the Voluntary Bill. Their names appeared upon the indictment. These were all witnesses with whom Mok had dealings in respect of property developments. They were in the main Grade C Government contractors. The majority of them were long time friends of the Moks. The developments produced considerable profits for the Moks. The witnesses, being named, on the back of the indictment, presented them to the Court as Crown witnesses but the fact of the matter was that their evidence was capable also, if accepted, of providing "a built in explanation" for much of the wealth which accrued to Mok. That the Crown took this course bedeviled the entirety of the proceedings and caused a great many of the difficulties which the trial engendered.

9. It is clear from the record, and from that which we have been told in the course of the protracted hearing of these applications, that an unfortunate degree of animosity grew up between counsel. This was of assistance neither to the judge, who was placed is an invidious position, nor to the jury.

10. The Crown's case was a comparatively, and I stress that word, simple one. It was that ten bank accounts were maintained and controlled by both the Moks; in some of them, Mrs. Mok was the sole authorised signatory and the allegation was that she was acting on her own behalf and that of her husband. The tenth account, in the name of "Wong Yee Ling", played a major part in the trial. That name was fictitious and the address given at the time of its opening was that of the Hong Kong Sanatorium with which organisation neither of the Moks had any connection. This was an account from which and into which during the charge period certain sums were transferred. It was used in relation to the property developments.

11. The ten bank accounts were:

1.	Mok's Current account with the Hong Kong and Shanghai Bank opened in 1963;
2.	Mok's Fixed Deposit account with the same bank opened in 1979. Both of these had as the authorised signature that of Mok.
3.	Dashirine Investment Limited Current account with the Kincheng Banking Corporation opened in January 1980;
4.	Dashirine Investment Limited Fixed Deposit account with Kincheng Banking Corporation also opened in January 1980;
5.	Dashirine Investment Limited Time/Call Deposit account opened with Kincheng Finance Limited in August of 1980;
6.	Jenota Limited Current account opened with the Kincheng Banking Corporation in April 1982. These were described as the "family companies" and the authorised signatures were those of Mr. and Mrs. Mok.
7.	Mrs. Mok's Current account with Kincheng Banking Corporation opened in April 1979;
8.	Mrs. Mok's Fixed Deposit account with the same bank also opened in April 1979;
9	Mrs. Mok's Current account opened with the Hang Seng Bank Limited, Head Office, in December 1970;
10.	The Wong Yee Ling Savings account opened with the Kincheng Banking Corporation on the 23rd November 1977.

12. Account number 7 had as authorised signatures those of Mr. and Mrs. Mok.

13. Accounts 8, 9 and 10 had as authorised signature "Mok Chiu Yee Man", or Mrs. Mok.

14. All the Kincheng Bank accounts were held at that bank's Causeway Bay Branch.

15. The Crown relied on the identifiable expenditure of $5,838,127.88, as evidencing the maintenance of a standard of living by Mok, whose official emoluments were $340,000 per annum and said that, assuming all identifiable income of $5,446,860.53, came from untainted sources, there was a difference of $391,258.35 between the two gross sums.

16. The attention of the jury was drawn to five specific cash transactions which the Crown said pointed to Mok having a far grater unexplained cash income than the figure of $391,258 and which cash transactions required an explanation.

17. They were: the payment on the 12th June 1982 to a Miss Shining Sun by Mok, without any corresponding withdrawal from any of the ten bank accounts; the payment, on 1st October 1982, of a further of $100,000 to Miss Sun, again without any corresponding withdrawal from any of the bank accounts; the 14th June cash deposit into the No.10 account, the "Wong Yee Ling" account, of $90,000 cash, without any corresponding withdrawal from the other bank accounts; the 1st October cash deposit of $140,000 to the No.10 account, similarly without a corresponding withdrawal; the $300,000 cash transaction on the 3rd November 1982.

18. In the course of this last transaction the two applicants, in the company of a Mr. Herbert Wong, went to the Wing Hang Bank in Hong Kong. Mr. Wong was a colleague of Mr. Mok. The applicants made arrangements to open a joint account with the Wing Hang Banks correspondent bank in Macau. They made a cash deposit, to be transferred to Macau, of $300,000. From Macau, the money was transferred to a Singapore US dollar deposit account with a company there. The address to which the deposit receipt was arranged to be sent was that of a Treasurer of restaurant in Des Voeux Road, a friend of Mr. Wong but unknown to the applicants.

19. That, at least, is the way the case started. But there was the matter of the payments to Mok's mistress, Miss Shining Sun which were never proved and, after that matter had gone out of the trial, the monetary difference was $190,323.95 or on another approach $191,323.95.

20. The Crown said this showed the maintenance of a standard of living incommensurate with Mok's emoluments and, in the wording of section 10, the Crown servant, "unless he gives a satisfactory explanation to the Court as to how he was able to maintain such a standard of living" commits an offence.

21. When the trial proper finally began it was before the fourth jury empanelled. The first two juries were discharged because of the inability of one or other of their members to continue with the trial which was expected to take, and did, some considerable time. The third jury was discharged on the application of the defence because of prejudicial matters contained in the Crown's opening.

22. As Mr. Duffy, with him. Miss Helen Lee, who appeared for, the Crown in this Court has emphasized it must not be forgotten that these charges were brought under an Ordinance, the short title of which reads:

"To make further and better provision for the prevention of bribery and for purposes necessary thereto or connected therewith."

It deals with corruption. Section 10 charges are brought where the Crown is unable to prove specific acts of corruption but where, in the overall circumstances of the evidence and in the light of any explanation which may be given by an accused it falls to a jury to decide whether or not an offence has been committed. For that reason it is necessary for this Court to scrutinize with care the manner in which such a trial is conducted. As was said in R. v. Hunt, ⁽¹⁾ the section "is one of extreme difficulty". Further, it is of considerable importance that matters the prejudicial value of which well outweighs their probative value and matters of mere suspicion are excluded from the consideration of the jury, lest they overlay the jury's mind.

23. The essential question for us to answer is : Did the conduct of the trial by counsel and the conduct of the trial by the judge, and his summing up, prejudice the jury to the extent of bias against the Moks so that they were unable fairly and properly to evaluate the explanations given? Dealing with the grounds seriatim.

S.10(1) (a) combined with S.10 (1)(b)

24. The criticism levelled against the Crown was of running a 10(1)(b) charge under the guise of a 10(1)(a). Mr. Hidden pointed in this regard to the mathematical method of the presentation of the case and in particular, to the specific sums which Mok was called upon to explain. It was Mr. Hidden's case that this was a much too detailed way of conducting a s. 10(1)(a) trial and that it was really an attempt to prove the Moks to be in control of a pecuniary resources or properties" disproportionate.

25. The dividing line between 10(1)(a) and 10(1)(b) is very narrow. Hunt, ⁽¹⁾ which is the seminal case in this matter, made it clear that to maintain a standard of living brings in all the outgoings and also the capital accretions, even though they may tend to raise and not merely to preserve a standard of living, and that a standard of living during a particular period, includes the amenities of life enjoyed during that period, regardless of whether the cost of those amenities was met during the period, prepaid before the commencement of the period or, by virtue of credit, not to be paid for until after the expiration of the period. This inevitably leads to accounting exercises, to the reliance upon particular figures and to the showing by the Crown that official emoluments past and present having been established, the monies, the property or generally the resources in the hands of an accused so far exceeds those emoluments as to prove, beyond a reasonable doubt, the maintenance of a standard of living incommensurate with them.

26. Once the Crown does that, it is then for an accused to explain, the onus being on the balance of probabilities. There may be perfectly good explanations, such as windfall on the share market, but that again entails the computation of figures. I find it difficult to see how, in the light of Hunt, ⁽¹⁾ the Crown could proceed other than by way of individual sums amounting in total to that which, they say to be incommensurate.

27. It is contended that the defence did not know what case it was they had to meet.

28. Mr. Hidden complained that the prosecution accountants, whilst taking into consideration the $300,000 used for purchase of US dollars as part of the $645,144.50 payments out, never took into consideration the $300,000 as money which had been withdrawn from the accounts or as cash income simpliciter. Had they done so there would have been, a surplus over money paid out to the extent of ($300,000 minus $190,323.95) $109,676.05.

29. Alternatively his complaint was that the Crown exacted an explanation for the remaining three specific cash transactions. At the same time the Crown also asked for an explanation for the total $190,000 payments out over and above the identifiable income. The basic approach of the accountants for the Crown was challenged. As was the other approach which was to take the difference over the charge period between cash withdrawals from the ten accounts, amounting to $451,820.55 and the total cash payments out amounting to $645,144.50. The difference was $193,323.95. From this last figure there fell to be deducted $3,000 which represented the proceeds of sale of Mok's car. The deficit of cash payments out over the moneys withdrawn from the accounts was then left at $190,323.95. Neither it is said did take into account the $300,000. As a result Mok was left in a quandary as to what he had to explain.

30. I understand the nature of the criticisms levelled, indeed the very method used by the Crown gives rise to them, but I do not think them to be justified to the extent that the Crown had in any way misled the applicants or that the applicants were under any disadvantage. This was not a disguised section 10(1)(b) brought under the guise of a section 10(1)(a) nor were the defendants unaware of the case they had to meet or of the explanations required of Mok.

Conduct of counsel for the Crown

31. I would say at once that some aspects of counsel's conduct are clearly open to criticism. These include (i) the prejudicial opening to the third jury; (ii) the Shining Sun matter: (iii) the treatment of some of his own witnesses - the "property development witnesses on the back of the indictment - and (iv) the nature and contents of his closing address.

(i) Opening address to the third jury

32. There had been considerable discussion over a period of days in the absence of the jury between judge and counsel as to the contents of the Crown's opening. Mr. Leary, who appeared for the applicants at trial, took strong exception to certain passages. Certain matters were ruled out by the trial judge. The opening to the third jury began on the 1st February. Objections were raised to it by Mr. Leary, in the somewhat hyperbolic language which became a feature of the trial. Eventually, the trial judge ruled, and his words make clear the basis for the objection:

"For the reasons argued by Mr. LEARY, it seems to me that this jury cannot be directed by me in such a way as to undo the damage done in the opening of this case by counsel for the prosecution. The offence is one calling for an explanation by a defendant of money which is in excess of his official emoluments and maintains a standard of living inconsistent exclusively with the receipt of his official emoluments. The suggestions made here, without any reference to the burden of proof to the jury, is that these two persons are definitely corrupt. That is not an issue which the jury must determine but whether or not they can give a satisfactory explanation for any standard of living proved to be in excess of their official emoluments. I think the jury must be discharged and a fresh jury empanelled."

33. The jury were discharged.

34. I make reference to this because that which had transpired and the nature of the objections to the opening of the Crown coloured the rest of the case and lead to Mr. Hidden 's contention that the prosecutor throughout the trial was attempting to bring in an element of corruption by the back door which he could not introduce through the front, thereby reversing the burden of proof and, without having called the necessary direct evidence, saying to the applicants: you prove you are not corrupt

35. Mr. Hidden says that Mr. Egan's continuation of this attitude was underlined by his attempt to introduce evidence that Mok had, in 1963, taken on a paid lecturing job without the permission of Government. It seems to have been implicit in Mr. Egan's attempt to call this evidence that he was inviting the jury to say that if Mok would do something like this, then he would equally well engage in corrupt activities.

36. Mr. Leary, in the course of his objection to this line, made reference to two earlier rulings by the judge that these matters "are not within the scope of this enquiry and had nothing whatever to do with the charge." The judge asked the jury to leave and directed Mr. Egan not to ask that question. After further submissions by both counsel in Chambers, the judge ruled that he did not think the matter of permission was relevant and he said:

"I don't think it amounts to anything but an insinuation that he was acting in breach of Government regulations, even assuming that those regulations had been proved as part of your case by putting them in evidence."

(ii) Shining Sun

37. It had been the case for the Crown, and the case was opened to the final jury on this basis that Miss Shining Sun had received two payments, each of $100,000, from Mok. The Crown stated she would be called. She was never called. The matter of those two payments was left squarely before the jury because they had before them the document numbered 1094 which was a letter from the Independent Commission Against Corruption to Mok asking for explanations for specific sums which included those two payments to Miss Sun.

38. I am prepared to except that the absence of Miss Sun from Hong Kong at the commencement of the trial proper was unknown to Mr. Egan. It should have been. Indeed, one would, have expected counsel to ensure, before his opening, that witnesses who would support matters as probative as these payments were available to come forward to give the evidence. It was known to those instructing Mr. Egan that she was not in Hong Kong. It became apparent in the course of the trial that attempts to contact her in the United States had proved fruitless. It was only when the trial was well on its way that the Court and the defence were informed that she would not be a witness. It was, in my view, then necessary that all references to her should have been excised from the exhibits, in particular that document 1094. This was not done.

(iii) Treatment of his own witnesses: "Property Development Witnesses" on the back of the indictment

39. As an illustration of Mr. Egan's treatment of his own witnesses and its effect on the jury, Mr. Hidden has drawn our attention to the evidence of a bank witness called to identify Mrs. Mok as the person opening the Wong Yee Ling account. That witness did not live up to proof and Mr. Egan sought leave to treat him as hostile. A juror was heard to comment "all you have to do is give them a meal".

40. While this might display a somewhat cynical view taken by the juror concerned I do not think that, of itself, it shows bias entering into the mind of the jury.

41. It eventually became an agreed fact that the account was opened by Mrs. Mok.

42. The property development witnesses were, in order, Mr. Hui Cheuk Pan (PW12), Mr. Ip Tai Lui (PW13), Mr. Li Pak Wing (PW14), Mr. Yeung Shung Choi (PW15), Mr. Horace Ho Hok Ling and John Loo Wun Loong (PW18). some of them were, as I have said, Grade C contractors. Mr. Ip was a solicitor, Mr. Ho an engineer.

43. After the first, abortive, opening the Crown sought to shorten the case by not calling them. It was clear that they were originally being called to at least suggest that, because of the official position of Mok, the occupations of those concerned and the nature of their joint dealings, there was cause for suspicion. Indeed the Crown would probably have wished to go further and say that this was evidence of outright corruption.

44. Mr. Leary stood his ground on the calling by the Crown of witnesses on the back of the indictment. Mr. Egan thought that, by the clearest ruling of the trial judge in the discharge of the third jury, it had been made clear that any attempt to prove corruption must be irrelevant. He said that it would be the Crown's case, as he succinctly put it:

"Your official emolument was $340,000 and you have had access to 5.4M credits. You have had the use of 5.8M outgoing. Over to you, Mr. MOK, We say that establishes the disproportionate life style, a life style which is not commensurate with your official emoluments. Over to you, Mr. MOK, you tell us all about it."

45. Mr. Egan appreciated that this new approach might change the manner of the presentation of the defence. Mr. Leary argued strongly that the Crown should call the witnesses. Mr. Leary would, of course, be in a most advantageous position if he could cross-examine the "built-in explanation" witnesses rather than being forced himself to call them. He was determined to hold on to that advantage.

46. The judge then ruled: there was one indictment in the case: on the back of that indictment there were named witnesses; their depositions were included in the statements supplied to the defence, therefore, in accordance with general practice, the prosecution must, have those witnesses available should the defence wish to call them or to have them produced for cross- examination. With that proposition, we are in entire agreement. However, the judge went on:

"          One hopes in this case that there will be no need for me to invite the prosecution to call those witnesses because one hopes that counsel will between themselves come to some agreement. There is substance in the statement that those witnesses are capable or might be capable of explaining part of the unexpected wealth of these defendants.

 

             In so far as my prime duty is to ensure that there is a fair trial, I would say this: that if at any time I am requested by the defence should that be necessary to make an invitation to the Crown in the terms in which I am asked then I may consider it at that stage and having regard to the interests of justice will make an order which I think is in the interests of justice.

 

             So as to give some indictation of my present feeling it seems to me that where those persons have provided statements containing matters upon which the defence has based its case then it would seem appropriate that those persons would be provided to the Court."

47. I can fully understand the views expresses by the trial judge in the light of his duty to provide and his full intention of providing, the applicants with a fair trial, but, with the greatest respect, I think his ruling in the circumstances of this case to have been wrong in its latter aspect.

48. In my judgment, the proper course would have been to ensure that these witnesses were available. It would then have been a matter for the Crown to decide whether they wished to call them or not. If they were called, it was for the further decision of the Crown as to whether they would call them in chief or tender them for cross-examination. If available then the defence could themselves call them.

49. In the light of that ruling I think the criticisms of Mr. Egan that he failed to obey it, and of giving an early indication of so doing, to lose much of their sting. In the event, the Crown did call a number of them, some of them for examination in chief, some of them for purposes of cross- examination. Mr. Leary seized his opportunity with both hands.

50. They all gave evidence of their association with the Moks and in turn of the Moks' association with the various development companies in which they were interested. That evidence concerned the very substantial profits made from these companies. All of them denied improper dealings and stated the business transactions in which they were involved with the Moks were straight forward and above board.

51. Before they were called, Mr. Egan said this:

"Now I think the purposes that we originally proposed to call these witnesses for, from our point of view at least, have disappeared because the matters we were going to elicit from them have been agreed. But my friend has indicated that he wishes them called for the purpose of cross-examination so perhaps I could call the first of these witnesses now - this is witness HUI Cheuk-fan - identify him and tender for cross-examination."

52. Mr. Hui then came to the box, was very briefly examined in chief by Mr. Egan and there was a lengthy cross-examination by Mr. Leary. This was directed to the property companies, Cortsville Limited and Cortsville Realty Limited and to houses at Bisney Road. Further there was the involvement of the Kincheng Finance (Hong Kong) Limited with them. Mr. Hui also made reference to two other companies, Lintherley Limited and Yinga Investment Limited and the involvement of Mr. Yeung Shung Choi in matters concerning them. Mr. Leary was clearly through these witnesses introducing the applicants explanation.

53. Mr. Ip was next. He was tendered for cross-examination and was extensively examined concerning Ansett Investment Company. There was reference to the Fuk Yuen Enterprises Limited, in which Mr. Li Pak Wing was also involved, as was Mok and Mr. Yeung Shung Choi. A number of other companies and premises in Elizabeth House were referred to.

54. When Mr. Ip was being re-examined, he was asked how Mr. Yeung Shung Choi chose his partners in the various developments. Mr. Leary objected to this because, as he said, if Mr. Yeung was himself going to give evidence then this should come from him rather than from Mr. Ip It was not a matter which arose from cross-examination. The question was, in the light of the evidence which had been given, quite rightly allowed. The intervention by Mr. Leary is but one of the example of the defence, having been presented with their cake, icing sugar and all, attempting to prevent the Crown from enjoying any of the crumbs which might fall from the pieces they themselves were eating.

55. After various questions were asked by the Court, to which I shall have to come back later for there is complaint as to their nature, there was a further and extensive cross-examination of Mr. Ip by Mr. Leary.

56. In the course of that there came a point when Mr. Egan asked that Mr. Leary's questions be confined within the Rules of Evidence. The judge accepted that it was difficult, in a case of the kind which he had before him, for counsel not to make speeches. He felt that points which could be made should be made. Mr. Leary expressed his gratitude and went on:

"My Lord, it is as a result of what Mr. Egan was asking in re-examination of this witness about Mr. Mok at the time being a Government architect. That has nothing whatever to do with the granting of any planning permission or planning approval at all. My Lord, that is why I am anxious that these matters should be ventilated at the earliest possible moment."

57. When the next witnesses, Mr. Li Pa k Wing (PW14), was called, the examination-in-chief was of a rather more detailed nature than vas that of either of the two previous witnesses. Mr. Leary objected. Mr. Leary was also concerned to see that, if the witness were to be examined in chief, certain questions, the background for which had not yet been laid should not be asked. Despite the almost continuous objections from Mr. Leary, the examination-in-chief continued for some time.

58. After Mr. Leary's extensive cross-examination the judge put questions to the witness. It is suggested that the judge by the manner and the nature of those questions fortified the innuendo that Mok, because of his position in the Public Works Department, would have been able to influence matters concerning the developments themselves and possibly have been of assistance in other ways to the developers. I shall come back to this when dealing with the criticism of the conduct of the judge.

59. When Mr. Yeung Shung Choi (PW15) came to give evidence, he also was examined in chief by Mr. Egan. Briefly at first and then, Mr. Leary having no objection, at much greater length. In the course of this, the judge himself elicited the fact that in these developments the names of neither Mok or Mrs. Mok were used because they did not wish it.

60. At a later stage of examination in chief a line of questioning began in relation to the Fook Wah Construction Company, one of the companies run by Mr. Yeung. Mr. Leary objected and asked the Crown to inform the Court the relevance of the line. Mr. Egan said that the basis on which the Crown asked the question was that it considered it relevant for the jury to know who it was that Mr. and Mrs. Mok were dealing with in their development schemes. He suggested that some of their opportunities for profit were given "benevolently" by Mr. Yeung. The judge took the view that, if the questions to Mr. Yeung were going to relate to any Government contract work which he might have done so as to show some nexus between. Mr. Yeung and Mok in the latter's capacity as Government Architect, Administration Department, they should not be asked. Mr. Leary made it clear that that was the reason for his objection and for his "ever growing" concern with the manner in which the Crown was seeking to conduct its case. He thought the Crown to be suggesting that there was something underhanded in the Moks' association with Mr. Yeung and indeed with the other developers. Mr. Leary said that he thought that he had laid to rest that innuendo. He had attempted to this by, producing a chart through the witness, Mr. Li, showing the internal workings of the P.W.D. He thought the Crown now to be going on to say "Well, if he couldn't grant planning permission, then perhaps he was in a position to corruptly influence the grant of contracts to his associates".

61. The judge ruled. And I think it worth repeating that ruling in full for, by the reference to "untainted source", it is repeating that which was said in Hunt. ⁽¹⁾ The ruling sets out very clearly what a section 10(1)(a) charge is all about.

62. The judge, said:

"In cases of this kind it is not possible for the Crown to prove corrupt conduct on the part of the defendant, otherwise he would be charged with that offence, but the offence with which he is charged is one within the four corners of the Prevention of Bribery Ordinance, and if there is a prima facie case, it is necessary for the defendant, the 1st defendant, to show on the balance of probability that the money in question came from an untainted source. Therefore for these reasons it seemed to me that it would be putting one's head in a bag, so to speak, not to imagine that there is not in the mind of the jury, or the Crown, the possibility of this money having (sic) come by an improper source. That being the case, I see nothing improper in the Crown exploring this avenue, for them to ascertain the business of this defendant (sic) and his relationship with the defendant in his capacity as a servant in the Government Public Works Department, albeit that he was in charge or in that section of the P.W.D. concerned with Government buildings. That is my ruling."

63. The examination-in-chief of Mr. Yeung continued for a short period and was then followed by the usual extensive cross-examination of Mr. Leary. At the conclusion of Mr. Yeung's re-examination, the judge put a series of questions to him and as a result, there was further cross-examination by Mr. Leary.

64. Mr. Ho Hok Ling was next. He gave evidence of a "fees" payment bade in the name of Mrs. Mok. On this aspect of the matter the jury put questions. The position was clarified by Mr. Le Leary in further cross-examination. Mr. Ho made it clear that, had he offered the "fees" payment to Mok, he would have expected Mok to refuse its acceptance so, by the method used, he intended to circumvent this refusal and provide a pleasant surprise to Mrs. Mok.

65. Then, in the sequence, came Mr. John Loo Wun Loong, a Director of the Ngo kee Construction Company Limited. He was examined in chief at some length by Mr. Egan. Objections came from Mr. Leary on the basis that Mr. Egan should merely tender the witness and that questions were being asked by the Crown which seemed to suggest that Mok might have assisted Mr. Loo in respect of the granting of contracts by Government. The judge ruled that the line generally was acceptable though it was of limited value, there being nothing to suggest in the evidence - and there was no Notice of Additional Evidence - that there, was anything improper in the conduct of Mok. Mr. Leary attempted to put the matter to rest by the first question asked in cross-examination:

66. Given the line that was taken by the defence with these witnesses, ,I cannot really see that Mr. Egan's conduct is open to the criticisms so strongly made by Mr. Hidden. It must have become apparent to him that the witnesses which he felt himself obliged to call were of enormous advantage to the defence and could well be considered as weakening his own case. He was inhibited by being unable to cross-examine.

67. It is suggested that in attempting to resolve his difficulty he, by implication, impugned them and suggested some form of, necessarily unspecified, tainted activity as between them and Mok. It is the use that the Crown subsequently made of their evidence, and of these implications, that bears on the grounds of appeal dealing with the allegation of unfair conduct generally by the Crown.

68. All went to the credit of Mok.

(iv) Closing address by the Crown

69. Mr. Hidden has submitted that the aspersions cast upon witnesses called by the Crown contained in the closing address were foreshadowed by the manner of their examination at trial. He cites in support of his contention an occurrance during the evidence of Mr. Ng Kai Chan (PW35). This was the person who Mr. Herbert Wong had arranged to receive the deposit receipt relating to the Singapore deposit of the $300,000. Mr. Egan in chief said to him:

"You have told us you did not know the Mr. MOK to whom the letter had been addressed. Had Mr. Herbert WONG ever used you as a mailing address?"

Mr. Leary objected on relevance and as did the trial judge. Mr. Egan ceased his questioning. There was no cross-examination and Mr. Leary suggested that Mr. Egan restrain comments such as "Perhaps the jury might find it interesting". The judge stated that such comments were not proper.

70. When the Court resumed after the mid-morning break, there were further objections by Mr. Leary as to the manner in which the case was being conducted by Mr. Egan. The judge called both counsel to Chambers. In Chambers, he said and again I think this to be worth setting out in full, for it encapsulates some of the difficulties the judge was encountering:

"I have asked you to come into Chambers because I do not wish to say before the jury which I think might not be the best informed of what I am now about to say, it's the duty of the Crown and has been known throughout that it is obliged to call the persons whose names are on the back of the indictment. It is not necessary for the Crown to do more than that and to call the person and then to tender that person for cross-examination." (Emphasis supplied.)

 

I would interpolate here that this clearly indicates that Mr. Egan was right in thinking that he was required by the earlier Ruling to call the witnesses named on the back of the indictment.

71. The judge went on, and this is the aspect of the matter upon which I wish to lay emphasis:

 

"But what  has disturbed me, more this morning is the fact that you call as a witness for the Crown, a person who gives evidence, namely Mr. NG, about an earlier transaction and then ask him whether he has had any similar previous dealings with Mr. Herbert Wong, thereby not only casting aspersions on the character of your own witness, which is against all standards, but also implying by insinuation that actually all these people are in a great fiddle and that therefore the defendant must also be in a fiddle. Whether that was intended or not I do not know, but certainly that is the impression which has been given to the jury.

 

        This is happening on more than one occasion and it's most regrettable that I am forced to say this, Mr. Egan, but I have certain powers. And for everyone in this case, it's a very difficult and long case, and much of our time should be devoted, concentrating on the issues without the necessity of seeking to score where one should not seek to score over one's opponent where one is the prosecutor, that's all I wish to say."

72. Mr. Egan then addressed the judge in, as he put it, his own defence. The argument in Chambers went on in relation to the manner of the calling of a Crown witness and, in particular, the development witnesses. Mr. Egan concluding that had he thought he was doing anything wrong, he would not have persevered. The trial resumed in open Court.

73. Towards the start of his closing address, Mr. Egan posed a rhetorical question to the jury in relation to the defence case and as to what they were being asked to believe. He proceeded to answer it by saying:

"In effect, you are being asked to believe that Mr. MOK throughout the period was a conscientious civil servant who, apart from the daliance he had with his mistress, really kept to himself and kept his affairs to himself limited to the two accounts, account number 1 and account number 2, and that all the rest of the bank accounts and all the other company activities were completely the doings of Mrs. Mok. That's what you are being asked to believe."

 

Later he said:

 

"You see, in this case you have heard a large number of witnesses, a good many of whom were called by the Crown, who have said a number of things you might find rather difficult to believe. It is a matter for you what you make of a witness. You can either, you are totally entitled as a jury, to either completely believe a witness, to completely disbelieve a witness, or you can believe some aspects of a witness's evidence and you can disbelieve others. It is entirely a matter for you what you make of a Witness's evidence."

74. He directed the jury's attention to one of the interviews Mok had had with the Independent Commission Against Corruption in the course of which Moke said, of the use of his wife as the front person in the property dealings, that he had thought at the time his dealings in property were contrary to Civil Service Regulations.

 

Mr. Egan went on:

 

"Now I will come back to that when I deal with the interview with the I.C.A.C.. What is significant of course is this: Even though he believed it to be against the rules, it didn't stop him from doing it. Now that is important because it shows the mental attitude of the 1st accused and that is something you will be concerned with."

75. This part of the closing address has bearing indirectly, on the question asked of Mok in cross- examination as to whether he did or did not seek permission from his superiors for the 1963 lecturing job.

76. While in the passage in the final address to which I have just referred, Mr. Egan was speaking of the property development matter, it is Mr. Hidden's contention that it and the 1963 question were attempts by the Crown to inflect prejudice into the proceedings.

77. A further passage to which exception is taken is one in which Mr. Egan makes reference to the explanation given for the $300,000, the repayment by a Mr. Lee of a loan of that amount. This was an explanation Which was not given to the Independent Commission, Mok first not disclosing the sum at all and, later, declining to explaining it. Mr. Egan said that the jury might think that Mr. Mok could have saved himself:

 

"................. a lot of trouble, a lot of embarrassment, and a lot of expense probably, by producing that explanation to I.C.A.C. a long time ago. I know that the offence under the section says that a satisfactory explanation that he gives is an explanation that's given to the court. That doesn't mean that that's the only place to which he can give the explanation, because as you will appreciate the case doesn't get to court until after decisions are made at the I.C.A.C. and then in the Attorney-General's chambers to bring a prosecution. If Mr. MOK was able to satisfactorily explain the existence of this three hundred thousand dollars two years ago, then if that explanation was accepted, as I say, he could have saved himself lot of embarrassment and a lot of expense. But he chose not to."

78. It certainly would have been proper for Mr. Egan to draw to the attention of the jury the lack of explanation by Mok to the Independent Commission. That was in evidence and properly so. Mr. Hidden contends what was quite improper was for him to make hie comments in the form he did.

79. I note, in fairness to Mr. Egan, that, shortly afterwards, he drew to the attention of the jury Mok's explanation as to why he did not inform the Independent Commission of the source of this $300,000:

"That is, because it was Dashirine's money and therefore Mr. Mok did not believe that he was obliged to disclose this transaction sent out of Hong Kong because it was Dashirine's money."

80. I accept that the criticisms of Mr. Hidden have justification. Those comments were improper and should never have been made.

81. Mr. Hidden says that the innuendo of corruption in relation to the property developments was brought up again when Mr. Egan emphasised that both Mr. Yeung and Mr. Loo were category C licenced building contractors who themselves had a number of contracts with Government and when he told the jury that Mok clearly had some apprehension as to those development but nevertheless was still prepared to involve himself in them. He made reference to the evidence of one of the character witnesses called on behalf of the Moks who said that one would have to "avoid a conflict of interest between one's official duties and one's private property investment interest".

82. There was, as I have said, no direct evidence that Mok in any way influenced P.W.D. contracts or the granting of them or, in any way, enhanced the property developments by obtaining for them planning permission. But, says Mr. Hidden, the innuendo already laid was continued.

83. In respect of Mrs. Mok, exception is taken that a comment by Mr. Egan, when he said, of an explanation put forward by her mother of Mrs. Mok's having found out about Shining Sun and resolving to put money aside for a rainy day,:

"Now the first thing is there is no evidence Whatsoever in this case that Mrs. Mok saved anything. Now, by 'evidence' I mean evidence in the legal sense of the word. Nobody has been able to come forward and say 'Mrs. Mok saved so much money'. Josephine Wong can't give that evidence."

84. Mrs. Mok was not, of course, required by the statute to give an explanation. This, says Mr. Hidden, is an adverse comment on the failure of a witness to give evidence prohibited by section 54 of the Criminal Procedure Ordinance.

85. Mr. Leary in his closing address, of almost twice the length, on the transcript, of that of the Crown, began by reminding the jury that the enemy of fairness is prejudice and that it is necessary at all times to keep an open mind and not to approach the situation with ideas already formed. He, as was his duty, dealt with the manner in which the case was presented by the Crown. He criticized it. He made reference to "smears being pushed around the Court". He attempted to negative that which he considered to be innuendo. His criticisms covered both the presentation and the person who presented it. The jury had these comments for their consideration.

The judge's interventions

86. Our attention has been drawn to the number, nature and quality of the judge's interventions both in his questions to the witnesses after their examination by counsel had concluded and, in certain instances, in his questions put during the course of that examination. On the latter point while they were numerous, I do not find them to have, in any improper way, reflected to the jury the mind of the judge or to have affected the orderly, proper and lucid development of the applicants' case, nor to have prevented, counsel putting his questions nor to have usurped his functions.

87. It is true, and in particular in respect of the development witnesses, that the judge did, after examination had finished, see fit to put lengthy series of question to them. But it must be remembered that this was a very complex case. It had been made so by the nature of those witnesses evidence and the manner in which they were produced to the Court. Once the development witnesses entered into the details of the many transactions in which they and the Moks were involved and the circumstances surrounding them, including the evidence of the bank accounts showing the interplay as between those accounts and the property developments, it was necessary for the judge to ensure that the jury had clearly in their minds the nature of the evidence being given. Mr. Leary at one point said he was extremely grateful to the judge for the questions he put.

88. At times the judge did appear to go close to the line that must be drawn between a judge's intervention to clarify and his entrance into the arena. Having carefully considered the submissions made to us as to the timing of the interventions and their nature, and bearing in mind in particular the questions that were asked as to Mok's professional capacity when those investments were being made, I am satisfied that, looked at overall, they were not such as to bring the judge into the arena in the way Mr. Hidden suggested.

89. The other aspect of the judge's conduct relates to the manner in which he summed up. I shall deal with it after considering the explanations offered.

The explanation

90. There was evidence that Mok tame from a very well to do family. He was his mothers favourite son. He had received substantial sums of money from her. He had made extensive profits from his property dealings. He had given interviews to the independent Commission in relation to the sources of his monies. He accepted that, he had not openly dealt in the property developments because he had thought that this might be against Government regulations. He said he knew nothing about the Wong Yee Ling account until, in 1983, it came to his knowledge while he was under investigation.

91. It was the contention of the defence, from evidence which emerged from the accounting exercise carried out by accountants called by both sides, that facilities existed within the company's accounts and Mrs. Mok's own accounts sufficient to fund the deposits into the Wong Yee Ling account. That was placed before the jury as a general explanation and there were various charts and documents introduced into evidence to give colour to it.

92. Mrs. Wong, the mother of Mrs. Mok, yet another Crown witness, gave specific evidence concerning the $90,000 and $140,000 items. She gave evidence twice in the course of the trial.

93. She said that, in 1981 and 1982, she felt that her daughter's marriage was not going as well as it should. In March 1982, on a visit, Mrs. Mok told her that Mok had a mistress. Mrs. Mok then produced a vanity case from under the bed containing a lot of money in notes. That money was counted and it came to $100,000. It was taken to the Hong Kong and Shanghai Bank and placed in a safe deposit box. Mrs. Wong said she advised her daughter to save money for the future for, if the marriage broke up, she might find herself in financial difficulties.

94. In June 1982, Mrs. Wong again visited Mrs. Mok and, on that occasion, Mrs. Mok produced $90,000 in notes in a brown paper parcel. Mrs. Wong was of the opinion that this was money saved as a result of the advice which she had given her daughter. Mother and daughter went, on the 14th June, to the Kin kincheng Bank in Causeway Bay and deposited the sum of $90,000. The account used was, as we now know, the Wong Yee Ling account.

95. The Moks went on holiday with Mr. Herbert Wong and they returned to Hong Kong in August of 1982. Mrs. Wong had hoped that this holiday would help to improve the, marriage but, on their return, she was told that Mok still maintained his association with his mistress.

96. Later she again went to see Mrs. Mok. Mrs. Mok produced, also from the vanity case, $40,000 in cash. They both went to the Hong Kong and Shanghai Bank where the deposit of $100,000, of which she had spoken, still remained. That sum was withdrawn from the deposit box and both went to the Kincheng Bank where the two sums, totalling $140,000 cash, were deposited. That deposit was made on the 1st October 1982 and into the Wong Yee Ling account.

97. The impression she gave was that the withdrawal of the $100,000 from the Hong Kong and Shanghai Bank and the deposit of the $140,000 into the Wong Yee Ling account were both on the same day.

98. A bank witness was called who stated first: that there had been no visit by Mok to the safe deposits between the 1st February and the 30th November of 1982 second that Mrs. Mok had visited the safe deposit once in the company of her mother. Records were produced to show that there was no visit on the 1st October but that there had been a visit on the 30th September. On that visit one only of a number of boxes in the bank was opened. It was the box of Christine - a daughter - and Mok. Mrs. Mok's safety deposit box was not opened.

99. Mrs. Wong, on her second appearance in the box, said she was mistaken as to the date, the 1st of October - it was the 30th September. What had happened was that Mrs. MOk was concerned about a missing finger ring and, instead of going to the Kincheng Bank after the money had been taken from the Hong Kong and Shanghai Bank, she and her daughter returned to her daughters house to see if that ring could be found. The money was put back in the vanity case and was removed from it on the following day. It was then that the deposit was made.

100. When Mok was asked by the Independent Commission in writing if he were prepared to give an explanation of these transactions, his solicitors had made reply that, on legal advice, Mr. Mok did not intend to provide any explanation. At an interview, when question on the $300,000 matter, his replies were that he did not wish to answer those questions.

101. The judge in summing up, referred to this evidence as having been heard for the first time in the course of the trial, and went on:

 

''Well, it's a matter for you, members of the jury to decide whether you think she might have been saving money at home under the bed, or whether you find that her mother's evidence is not to be accepted as truthful."

102. I have already referred, briefly, to the sequence of events on the day upon which this money found its way into the Wing Hang Bank in Central, from it to Macau and thence to a Singapore US dollar deposit account. Also to the matter of the person who was to receive the deposit receipt and his name being supplied by Mr. Herbert Wong, a working colleague of Mr. Mok.

103. There had been evidence that many other remittances overseas had been made in a more normal manner by the Moks.

104. Mok said in evidence that what he expected to receive from Singapore was, not the deposit receipt, but merely a notification that the money had arrived there safely. He had not wanted to use his mother-in-law's address for this notification as she was leaving Hong Kong. He did not wish personal correspondence to be sent to his office. Therefore, he accepted Mr. Herbert Wong's suggestion that he use the restaurant treasurer's name and address.

105. The evidence of the Manager of the Wing Hang Bank in Central as to the course of events differed somewhat from that of Mok. He said that, having remitted the money to Macau, an account was opened there and a cheque book and an application for remittance were sent back to Hong Kong, and collected by someone from his banks. This happened a few days after the original deposit. A few days later again he received the remittance form from Mok and sent it on to Macau on his behalf.

106. When Mok was first interviewed, and when he was sent the Stautory Notice under section 14(1)(b) of the Ordinance on the 28th February 1983, he made no mention of this sum of $300,000. The matter came to light because Mok was under surveilance by the. Independent Commission and his visit to the bank was recorded. Mok sought to explain his failure to make reference to this sum by saying that, as he did not deposit the sum with the Wing Hang Hank in Central but with the bank in Macau, further, that it was not his money in any event but was that of Dashirine Investment Limited.

107. There was evidence from a Mr. Lee that he had, on various occasions over a period of time, borrowed a total of $250,000 from Mok: that he repaid that sum and, no interest being charged, had added a bonus of $50,000 to it. His total repayment was therefore $300,000. The suggestion was that it was this sum which had gone from Hong Kong to Macau and thence to Singapore.

108. On the general aspect, of the monies in the hands of Mok and of his wife, the explanation was that these investment sources were totally untainted by any corruption, that they were straight forward business deals and that the money was legitimately in their hands.

The summing up

109. Mr. Hidden attacked the summing up on the basis that the judge had, gradually, as the trial went on and, culminating in his summing up, showed himself to have been overborne by Mr. Egan's persistence and had, "sadly", adopted the prejudicial stance that characterized the Crown's presentation of its case. He submitted in so doing, inadvertent though it might have been the judge had reversed the burden of proof.

110. At the start of that summing up the judge, very carefully and very properly, said this to the jury:

"It is essential, members of the jury, that you understand the nature of this charge which has been brough against the 1st defendant. He is not charged with corruption. There is no evidence against him that he solicited or received. any bribe, or that he abused his position' in the Public Works Department so as to obtain favours for others. For this specific offence, members of the jury, which you have to try, the Crown does not have to prove corruption on his part. There is no evidence of corruption having been committed by him."

 

Later he said:

 

"He will be guilty of this offence unless he gives you a satisfactory explanation as to how he was actually able to maintain his standard of living above that commensurate with his official emoluments."

111. The jury were warned that their verdict must be confined to the conclusions they reached in respect of the charge period alone and they should not be influenced by material which had no bearing on the issue which was for their determination.

112. Mr. Hidden would have it that the judge should have made no reference to corruption at all. With that I do not agree for reasons which will be obvious from that which has gone before.

113. Apart from that, Mr. Hidden submits that the judge departed from his role as "impartial arbiter" and had indulged in prosecution advocacy illustrated by his use of perjorative expressions in reference to the standard of living maintained by Mok, such as "excessive" and "inordinate", and by the strength of his comments.

114. Further, that he had given a quite unnecessary definition of what amounts to corruption which, in effect, adopted the Crown's stance. Mr. Hidden says this adoption is underlined by the judge's reference to the evidence of development witnesses, where they said that corruption played no part in their association and dealings with Mok, and then commenting:

 

"(It) is clearly available to the defendant, the weight that you placed upon it is of course a matter entirely for you."

He contends that the judge over emphasized the necessity for the defence to show that the source of the money shown to be in Mok's hands during the charge period was an "untainted" one. This, with respect, is clearly in line with the decision in Hunt. ⁽¹⁾

115. He goes on that the judge reversed the burden when he said to the jury :

 

"Whether you find on the balance of probability that his explanation is a satisfactory one or not is entirely a matter for you. If you find on the balance of probability that it is an unsatisfactory one, well then you will convict him; otherwise - you will acquit him."

116. He submits that the judge, when commenting on Mok's official position and on the various posts he held in the Public Works Department, placed unfavourable emphasis on that official position and on matters such as the opening of the Wong Yee Ling account in 1977 which took place while he held office. He made reference to Mr. Herbert Wong as holding a directorate level post in the Public Works Department. Thus, says Mr. Hidden, he was nurturing prejudicial innuendo already planted in the jury's mind by Mr. Egan.

117. A misdirection is alleged as to the direction on the use to which the jury could put character evidence.

118. On this last, I accept that it would have been preferable had the jury been told that character evidence, and their consideration of it, went to the explanation; that they could take it into consideration in so far as it affected the credit to be given to the evidence of Mok and further on the general issue of whether a person of Mok's character would be likely to be living on income from tainted sources.

119. Criticism also extended to passages which concerned Mrs. Mok.

120. These related mainly to the $300,000 incident. The trial judge posed various questions to the jury which contained strong comment on the conduct of Mrs. Mok. One of these was: Was her going to the bank with Mok and Mr. Herbert Wong, carrying the money in a plastic bag which contained a picture that needed framing, part of a deception to ensure the continuance "of his inordinate standard of living in the charge period?" Another when he asked them to consider why, when moving the $300,000 out of Hong Kong, Mrs. Mok did not go to the bank through which she had earlier remitted £350 to England, which bank had given her good service.

121. Mr. Hidden drew particular attention to the passage where the judge said:

 

"What do you think that the 1st defendant and Mr. Wong would imagine Mr. Fung (the Bank Manager) might think in the climate of Hong Kong if the 1st defendant had produced $300,000 in cash from his pocket and asked for the money to be sent to Macau pending a decision whether to send it on to Singapore? Whether you think that the 1st defendant would have thought it would look much more respectable if his wife were present and if she produced the cash is entirely a matter for you. Her presence would give the transaction a semblance of respectability for which you would think that a man would be unlikely to do something untoward if his wife were present. So it's for you to consider whether, if at all, and it's a matter entirely for you, members of the jury, she was present to allay any suspicions that both she and the 1st defendant felt might have been raised had the 1st defendant alone produced that money.(sic)"

122. While certain of the judge's comments, some of which I have set out in full, were strong, the evidence in particular in relation to the $300,000 incident, was equally strong.

123. In Hon Hoi Wah & another v. R., ⁽²⁾ another Division of this Court, when considering similar criticism levelled at a summing up, emphasised that:

"The question ultimately is one of fairness" (p.27)

I would add "and balance".

 

124. There, having considered numerous authorities, the majority adopted the words of Lawton L.J. in Sparrow ⁽³⁾ as being the proper test.

125. Lawton L.J. had said, at p.362, in the context a trial judge's comments upon the failure of an accused to give evidence,:

 

"The object of a summing-up is to help the jury and in our experience a jury is not helped by a colourless reading out of the evidence as recorded by the judge in his notebook. The judge is more than a mere referee who takes no part in the trial save to intervene when a rule of procedure or evidence is broken. He and the jury try the case together and it is his duty to give them the benefit of his knowledge of the law and to advise theta in the light of his experience as to the significance of a evidence; ..... but he must keep in mind always his duty to be fair. (Emphasis supplied)."

126. The judge had had a difficult trial. It had taken three months. A great deal of complex evidence had been placed before the jury. The transcript alone runs to 2586 pages. But the net issue was and remained: had the Crown proved beyond reasonable doubt an incommensurate standard of living and had Mok shown, upon the balance of probability, that the explanation he gave was one which should be accepted and which showed that the source of the funds at his disposal, which permitted him to maintain that standard, was untainted.

127. The trial judge had specifically directed the jury that they should ignore the Shining Sun matter.

128. It is true he made reference to one of the property developments benefiting considerably from the grant of planning permission. This was one of the innuendo matters of which Mr. Hidden complains - as did Mr. Leary in the Court below. But that was the evidence. The trial judge balanced his reference by saying:

"There is not a scrap of evidence in this case, members of the jury, to show that the 1st defendant was instrumental in any way in obtaining necessary consent."

And this, with respect to Mr. Hidden, was the format of the approach of the trial judge.

129. It is trite law that one does not construe a summing up as one would a statute. An Appellate Court must look at a summing up overall.

130. Here, while there was strong comment, the trial judge went into the evidence in detail, including the complicated mathematics, made reference to the defence submissions and placed the defence itself clearly before the jury. It was, because of the length of the trial, a necessary exercise. He warned the jury in the clearest terms that they were in no way bound by any comment he might make.

131. On the matter of the judges conduct overall, the interventions and the summing up, it is necessary for this Court to ask itself did it so prejudice the trial that the verdict of the jury might be considered to be unsafe or has there been such a demonstrable miscarriage of justice that we ought to interfere? Did the trial judge indicate to the jury that he had formed some adverse view of the applicants, or of the case they were putting forward?

132. As was said by Cumming Bruce L.J. in Mathews ⁽⁴⁾:

 

"Might the case for the defendant as presented to the jury over the trial as a whole, including the adducing and testing of evidence, the submissions of counsel and the summing-up of the judge, be such that the jury's verdict might be unsafe? In the presence of conditions in which this Court has been alerted in the manner to which we have referred, it appears to us that if there is a possibility of a denial of justice then this Court ought to intervene."

133. Having given full consideration to Mr. Hidden's submissions and having examined the transcript and the summing up with the care they deserve, I would answer the questions I have posed in the negative. On this part of the application I do not think the convictions of the applicants to be either unsafe or unsatisfactory.

Conclusion

134. But that is not an end to the matter, it is still necessary to consider the possibility that the jury's mind had become clouded by bias so that they were not in a position to give a fair and balanced consideration to the explanations offered.

135. I accept that, when prejudice enters into a trial or where there is evidence before a jury that should not be there, it is a no easy task for a judge to ensure that the mind of a jury has not been affected. Directions to ignore may not, depending upon the circumstances, be enough to satisfy an Appellate Court that the conviction is safe and satisfactory.

136. Because of the many matters which have been canvassed before us, it has been necessary to deal at length with the issues raised.

137. It will be clear from that which I have said a moment ago in relation to the summing up that I think the jury to have been properly directed.

138. There was, I consider an element of prejudice and, stemming from it possible bias, introduced into this case by counsel then appearing for the Crown. Buta great deal of the sting has been taken out of the criticisms levelled at his conduct because he was. forced to call witnesses whom, in the ordinary course, he would not have called. The calling of these witnesses was at the behest of, and after strenuous endeavours by, the defence.

139. I accept that it is of considerable importance in the trial of these complex and unusual charges that a defendant is not placed in a position of having to disprove actual corruption by the Crown's leading indirect evidence intended to show that it existed. Suspicion can never lay a proper basis for a conviction.

140. Given that it is necessary for a defendant to be believed when he presents his explanations, it is obvious that the jury must consider whether those explanations are capable of belief. The explanations here could, by no stretch of the imagination, be said to be of great strength. That must have been a factor which weighed strongly on the mind of the jury.

141. Difficult though the task of a trial judge may be, it would be wrong for this Court to act upon the assumption that a jury, when properly directed to cleanse their minds of a generality of prejudice or of specific matters which should not be before them, ignores those directions. Here, in my judgment, while there was the element of prejudice, nevertheless, the properly directed jury were entitled to come to the conclusions they did. A standard of living incommensurate was fully proved. There was, with respect to Mr. Hidden's able and detailed submissions to the contrary, a notable failure to explain that the three sums with which the jury were particularly concerned came from untainted sources.

142. Placing the property development aspect in its proper perspective, while it covered a large portion of the transcript and took up a major part of speeches of counsel and of the judge's summing up, it was, in the main, peripheral to the issue before the jury. It certainly explained, and properly explained, the very large assets available to a man on a salary of $340,000 per year. It did not provide an explanation of the three specific sums. The jury were entitled to reject the "under the bed" explanation of the source of the $90,000 and $140,000. They were entitled to view with the gravest suspicion the explanation of the source of the $300,000 - particularly in the light of the way in which the money was disposed of. They were entitled to consider it to be very much less likely than not that Mok lacked knowledge of the Wong Yee Ling account. They were entitled to reject the reasons he gave for the unusual dealings with the $300 ,000.

143. There were unsatisfactory aspects in the trial but this is a case for the application of the proviso for they did not, in my judgment, on the whole of the case, give rise to a miscarriage of justice nor were they sufficient to warrant our interference. I do not think the conviction to have been either unsafe or unsatisfactory. I would grant the application for leave to appeal, treat the hearing of the application as the hearing of the appeal and dismiss the appeal by Mok against his conviction.

Mrs. Mok

144. To turn now to deal with Mrs. Mok. Three particular aspects fall for consideration. First: was the charge brought against her one good in law, second: if it were, was the evidence sufficient to support a conviction upon it, third: did counsel transgress s.54(1)(b) Criminal Procedure Ordinance Cap.221 in his closing address.

First

145. The defence contends that a section 10(1) (a) offence can only be committed when the explanation required of the person charged, having been given to the Court, is found to be unsatisfactory. No offence is committed until that moment, therefore, there cannot be any such thing as an accessory after the fact. Further, there cannot be an aider and abetter of the offence because a person so charged is neither actually or constructively present encouraging the offence. In any event Mrs. Mok was not a Crown servant to whom this offence is exclusive.

146. There is no offence known to law where the proof of an essential element in that offence is whether or not someone else calls evidence and whether or not that evidence is found to be credible.

147. It is further submitted that here the two applicants were being tried together with different burdens of proof applying one to the other. Mok was required to give an explanation, his wife was not.

148. While it is conceded that a wife, qua wife, is unlikely ever to be convicted of an aiding and abetting charge, Mr. Duffy makes references to section 82(1) of the Interpretation and General Clauses Ordinance, Cap.1 and says that this is, in general terms, an authority for the proposition that any offence can be aided and abetted. He submits that there is a presumption that every offence can be aided and abetted unless the legislation creating it expressly or impliedly negatives the liability of secondary parties. Mapolisa v. R. ⁽⁵⁾.

149. He relies, in part, on decisions concerning the loitering provisions (section 160 of the Crimes Ordinance, Cap.200) such as Ng Yuk Sin v. The Queen ⁽⁶⁾ and Attorney General v. Tse Kam Pui ⁽⁷⁾ which concerned themselves with the failure to give a satisfactory account.

150. The Crown's case, as set out in the opening to the fourth jury against Mrs. Mok was, as they said, different p.489 from that against Mok. The passage reads:

 

"The Crown says that she aided and abetted, that is assisted him to commit his offence in that she knew or was reckless that the 1st accused, her husband, was a Crown servant who maintained a standard of living above that which was commensurate with his official emoluments.

 

        Secondly, we say that she assisted him in particular to maintain his standard of living in particular by her opening and operating the WONG Yee-ling bank account, the number 10 bank account. .... And secondly we say she obviously aided and abetted the 1st accused to commit his offence by means of her involvement with him jointly in the $300,000 transaction on the 3rd of November 1982 involving the money that went to the Wing Hang Bank correspondent bank in Macau and then to Singapore.

 

        And, finally, we say that she knew or was reckless as to whether the 1st accused would not be able to give a satisfactory explanation to the court for the maintenance of the standard of living which we have set out."

151. Mr. Hidden relies on that which he describes as two conclusive authorities, Tyrrell ⁽⁸⁾ and R. v. Whitehouse, ⁽⁹⁾ which followed Tyrrell.

152. It wad held in Tyrrell⁽⁸⁾ that it is not a criminal offence for a girl between the ages of 13 and 16 to aid and abet a male person in committing, or to incite him to commit, the misdemeanour of having unlawful carnal knowledge of her contrary to section 5 of the Criminal Law Amendment Act, 1885, Having set out the purposes of that Act, Lord Coleridge, C.J., at page 712, concluded:

 

".............. but it is impossible to say that the Act, which is absolutely silent about aiding or abetting, or soliciting or inciting, can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves."

153. In Whitehouse, it again was a sexual case, where the defendant had pleaded guilty to two charges of inciting his 15 year old daughter to commit incest with him, the Court held, on the basis of Tyrrell, ⁽⁸⁾ that as the defendant's daughter was incapable of committing the crime of incest, the defendant could not be guilty of the common law offence of inciting her to commit that crime. The headnote goes on at page 868:

 

"...... that, although a person incapable of committing a crime could aid and abet in the commission of that crime as the daughter would have been the victim of the alleged crime and since section 11 of the Sexual Offences Act, 1956 was enacted to protect her from criminal liability, even if she had acted in a manner that could amount to aiding and abetting her father to have sexual intercourse with her, she could not in law have aided and abetted her father to commit incest with her."

154. With respect to Mr. Hidden's submissions, the Ordinance here is not intended for the protection of wives. But, says Mr. Hidden, the legislation cannot have intended by section 10 to catch anyone other than a Crown servant. This comes back to his point that there is no offence until there is a failure to explain.

155. In this jurisdiction, in my judgment, Ho Sing Tuen v. The Queen ⁽¹⁰⁾ is decisive upon the matter. It is a decision which clearly takes precedence over that of Judge Rhind (as he then was) in Lee Ping Lun⁽¹¹⁾ and also overcomes the dicta in R. v. Cheung Sou Yet ⁽¹²⁾ being delivered subsequent to it. In Ho Shing Tuen, ⁽¹⁰⁾ the Court was considering sentence, the time at which the offence was committed and the penalties which existed at that time. The offence was one under section 10(1)(b). Nevertheless, I think the principles there set out to be applicable. At page 5, Huggins J.A. (as he then was) said this:

 

"Whilst it is true that there could be no conviction until the Appellant failed to explain his assets, it seems to us that that failure was not an omission in part constituting the offence."

156. Having considered the matters I have indicated in relation to sentence, Huggins J.A. went on:

 

"The failure to explain was not 'an act or omission' within the contemplation of s.92 of the Interpretation and General Clauses Ordinance. The act constituting his offence was the possession on the charge date of assets for which he would not, when called upon, be able to give a satisfactory explanation. A satisfactory explanation would have given that prima facie criminal act an innocent character."

157. I interpret that as meaning that the offence lies in the section, here the maintaining of a standard of living, the defence is the explanation which may be given. If accepted, there will be no conviction. If rejected, there will.

158. A person aids an offence when he gives actual assistance to the commission of that offence. A person abets an offence when he instigates or incites another in the commission of that offence. Modern authorities tend to suggest that the words "aid" and "abet", "counsel" and "procure" may all be used together provided that an incitement discloses clearly to the person concerned the case he has to meet. D.P.P. v. Maxwell ⁽¹³⁾ lends support to that proposition.

159. If a person gives assistance to a Crown servant, even though they themselves are not within that definition, in the commission of an offence under section 10 of the Ordinance, provided the person knows that the principal offender is maintaining a standard of living, knows that no explanation can be given or is reckless as to whether or not an explanation satisfactory to the Court can be given; then in those circumstances such a person can be convicted of aiding and abetting the Crown servant in the commission of the offence.

Second

160. On the second issue, it is unnecessary for me to reiterate again the evidence on matters concerning Mrs. Mok. The $90,000, the $140,000 and the $300,000 items. Suffice to say that upon the evidence of her connection with the bank accounts and with those specific items, it was open to the jury to find that she did aid and abet the prima facie case erected by the Crown and once the jury had rejected Mok's explanations, which explanations included the conduct of his wife, to convict her on the charge laid against her.

Third

161. On the third issue, there is a prohibition against comment upon the failure of an accused to give evidence. It has been held in these courts to be, almost, a complete prohibition. Had there been direct comment here by the prosecutor, that would have offended against the section. But the comment he was making was in the context of the explanations being offered by Mok, from the other evidence in the case and upon which the defence relied. It is correct that there was no evidence from any person of the actual savings of Mrs. Mok, other than the mere belief of Mrs. Wong. The prosecutor was entitled by the nature of the case to make the comment he did.

162. For these and all the other reasons given the conviction of Mrs. Mok was neither unsafe nor unsatisfactory. I would give leave to appeal, treat the hearing as the appeal and dismiss the appeal.

Li, V.-P.:

163. I am in agreement with Silke J.A.'s judgment just delivered. There is very little useful that I can add. However, for future reference I would like to make the following comment.

164. Prosecution counsel should adopt the role of minister of justice and never a persecutor. It is not for him to gild the lily but only to present his case as strongly as he properly can. In this present case, if counsel in a Court below was put in an invidious and embarrassing position, then counsel who was responsible for the preparation and the conduct of the committal proceedings must bear a fair share of the blame. No one with proper understanding of the provisions of Section 10 of the Prevention of Bribery Ordinance, or with a little bit of imagination and commonsense, would ever have included those whom we described as the "property witnesses" and the friends of the appellants or the 2nd appellant's mother as witnesses for the prosecution. They were neither necessary nor could they be expected to be helpful to the Crown's case. However, for reasons best known to counsel, their names were listed at the back of the indictment and their statements were attached to the Voluntary Bill. That led to all the troubles in the course of the trial. But that is no excuse for prosecuting counsel not restraining himself despite the attitude adopted by Defence counsel in the Court below.

165. The learned counsel for the appellants had very properly developed his argument and developed it so skilfully that at one stage my sympathy was leaning towards the appellants. However, an appeal must be adjudicated upon not in a moment of emotion but in a logical, calm and cool condition. For these reasons, feeling must be allowed to simmer down so that all aspects of the case be considered. It is partly for this reason that this judgment has been delayed for so long.

166. Having carefully considered all aspects of the case, I am of the opinion that the conclusion of my brother Silke is fair and correct. That is the reason why I agree.

Power, J.:

167. I concur with and have nothing to add to what has fallen from Silke, J.A. I am in agreement also with what the Vice President has said. This was very much a case where Crown had only to prove a standard of living note commensurate with official emoluments. It was unfortunate, indeed, that the "property development witnesses" were named on the back of the indictment. The defence, having seized upon what they saw as a tactical advantage, the trial was, thereafter, bedevilled by this.

(1) [1974] H.K.L.R. p.31 at p.53

(2) Criminal Appeal No. 993 of 1983 (unreported)

(3) (1973) Cr. App. R. 352

(4) (1984) 78 Cr. App. Rep. 23 at p.33

(5) [1965] A.C. 840 at p.865

(6) Criminal Appeal No. 997 of 1979 (unreported)

(7) [1980] H.K.L.R. 338 at 340

(8) [1894] 1 Q.B. at 710

(9) [1977] Q.B. 868

(10) Criminal Appeal No. 5 of 1979 (C.A. unreported)

(11) [1977] D.C.L.R. p.32

(12) [1979] H.K.L.R. 630

(13) [1978] 3 A.E.R. 1140