HKSAR v. LAM WAI CHI alias ALAN AND ANOTHER

DCCC 810, 813 & 934/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 810, 813 & 934 OF 2011 (Consolidated) (Part A)

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Reasons for Verdict

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1.  The 6^th defendant, Mr LAM Wai-chi Alan (“D6”), faces one count of aiding and abetting agent accepting an advantage which is charge 3 in the present trial. The 8^th defendant, Mr TANG Kang-chung Billy (“D8”), faces 3 counts of dealing with property known or believed to represent proceeds of an indictable offence which are charges 6, 7 and 8. The details of the charges are set out in the charge sheet and the court is not repeating them here now. They plead not guilty to the charges.

2.  Throughout the trial the court bears in mind that the burden of proof rests squarely on the prosecution.  The prosecution is to prove the guilt of the defendants beyond a reasonable doubt before the court can convict any one of them of any of the offences.  The court also bears in mind that D6 has a clear record when the court considers his propensity in committing the present offence and the credibility of what he said under caution in the interview with the ICAC.

Evidence of the Prosecution

3.  The evidence of the prosecution consists of the testimonies of 8 witnesses, 4 sets of facts admitted under section 65C of the Criminal Procedure ordinance, Cap 221, recordings of 2 meetings and 2 telephone calls, and a video- recorded interview under caution of D6 which is admitted into evidence after a voir dire by way of alternative procedure.  

4.  The first prosecution witness Mr NG Ting Hoi (“PW1”) is the Membership Manager of the Hong Kong Jockey Club (“HKJC”).  5 witness statements he gave to the ICAC are admitted under section 65B of the Criminal Procedure Ordinance, Cap 221 as his evidence in court.

5.  According to him HKJC was incorporated in Hong Kong on 14 July 1903 as a company limited by guarantee with express prohibition of distributing profits or dividend to its members. The corporate governance is vested in the Board of Stewards which have delegated the executive control of the club to the Board of Management.

6.  The main categories of individual members of HKJC are voting members, full members, racing members and racing club members.  According to the memorandum and articles (“M&A”) of HKJC the number of voting members shall not exceed 200 while the numbers of members of other categories are unlimited and as determined by the Board of Stewards.  Members may enjoy the facilities, amenities and services of HKJC and may also own horses.

7.  Candidates for racing membership have to be proposed by a resident honorary steward or voting member or honorary voting member, and seconded by any member of the same categories, as well as supported by 3 other individual members.  Currently, each of such members can propose 5 candidates for racing membership each year, and may, on request basis, propose a further 5.

8.  A racing member is eligible to apply to become a full member at any time.  Candidates for full membership have to be proposed in the like manner. No seconder or supporter is required.  Since the 2009/2010 season, each voting member can propose 2 candidates for full membership each season.  The application forms for racing and full membership are serially numbered and are issued to and for use of the voting member named on the form only and is not transferrable to another voting member.

9.  In proposing or seconding an applicant for racing membership the voting member should assess the applicant’s character and social standing and have personal knowledge of the applicant.  In supporting an applicant each individual member is required to state his personal association or acquaintance with the applicant and give reasons why he considers the applicant suitable to be a racing member in the application form.  The applicant is to submit the completed application form and supporting documents to the club.  The applicant is also required to submit an HKJC Membership Card Application form to facilitate the issue of the membership card which takes the form of a Master credit card issued by Hang Seng Bank.          

10.  The evaluation and recommendation of candidates for election as members are delegated by the Board of Stewards to a Membership Committee comprising 5 stewards.

11.  Every racing or full membership application has to be submitted to the Membership Services Department of HKJC where it will go through vetting to verify the information stated in the application forms so as to assess the applicants’ interests in horse racing and to ensure that they do not have derogatory financial records and are suitable to be members of HKJC.  If the information provided is in doubt, HKJC may interview the applicants for clarification.  The authenticity of the signatures of the proposing, seconding and supporting members, as the case may be, will also be verified by checking them against the specimen signatures of the members kept in HKJC records.  Such members and the applicant will be informed about the progress of the application by letters issued by HKJC.  According to PW1 all the applications involved in the present case were processed in such manner.

12.  A newly elected racing or full member is required to pay an one-off admission fee and a monthly subscription. For 2008/2009 racing season they were respectively $68,000 and $420 for a racing member.  For 2010/2011 racing season they were respectively $250,000 and $1,300 for a full member, but the admission fee paid by the full member when joining as a racing member can be deducted from the full member admission fee. 

13.  HKJC and the Board of Stewards rely on the integrity of the voting members to propose, second and support candidates to become members.  All members are not allowed to solicit or accept, and all prospective members not allowed to offer or pay, any advantage for the sponsorship or support of any membership application.  All members and prospective members must make a declaration in the membership application form to the effect that no advantage has been accepted or offered. Circulars were issued to voting members in June 1999, June 2002 and December 2010 to remind them of such prohibition and of the reliance of the Board of Stewards on them to recommend candidates of high quality and integrity personally known to them.

14.  HKJC and the Board of Stewards consider that the acceptance of advantages by a member to sponsor or support a membership application and having a candidate bribing his way to become a member are conducts highly prejudicial to the interests, character and reputation of the club.  They also consider themselves being deceived because such practice constitutes a misrepresentation to the Board of Stewards.           

15.  The privileges enjoyed only by voting members include attending and voting at Annual General Meetings and Extraordinary General Meetings, electing stewards and participating in the management of HKJC affairs.  Voting members are elected by the stewards of HKJC in accordance with the M&A.  When a voting member reaches the age of 70 he will become an honorary voting member and ceases to have the right to propose or second candidates for election as members.  The M&A, however, stipulate that a voting member elected on or before 30 April 1975 shall continue to enjoy the privilege of proposing candidates for full membership and proposing or seconding candidates for racing membership on becoming an honorary voting member, provided that he ordinarily resides in Hong Kong.

16.  Mr John Douglas Mackie (“D2”) of membership number M0388 and Mr Stanley Lawrence Freedman (“D7”) of membership number F0333 were elected voting members respectively on 28 December 1970 and 3 February 1983.  D2 became an honorary voting member on 20 November 1998 and D7 on 18 May 1998 when they became the age of 70.  For 2008/2009 racing season D2 was eligible to propose 1 candidate for full membership.  For 2009/2010 and 2010/2011 racing seasons he was eligible to propose 2 candidates for full membership and 5, or on request basis, 10 for racing membership.     

17.  Exhibit P4 is racing membership application form number 08R1297 issued to D7, the applicant being Chan Chi Chung, the 2^nd prosecution witness (“PW2”),  D7 in proposing PW2 as a racing member stated in the form that he had known PW2 for 3 years and that PW2 enjoyed racing and would make a very very good owner.  The application was seconded by Dr Ho Wai Tak (“D9”) of membership number H0892 who was elected a voting member in November 1992.  He stated in the application form that he had known PW2 for 1½ years and PW2 had told him that he was a keen racing fan and wished to be a horse owner.  Both D7 and D9 made a declaration in the form that they had received no advantage in proposing or seconding this application.  The form was signed by D7 on 20 January 2009 and reached Membership Services Department on 13 March 2009.

18.  Mr TO Wing (“D10”) of membership number T1192 and full membership since July 1987 was one of the supporting members of PW2’s application.  D10 stated in the application form that he had known PW2 for 2 years and that PW2 loved horse racing and wanted to become a horse owner.

19.  The application was approved and PW2 was elected a racing member in November 2009.  

20.  Exhibit P5 is full membership application form number F000493 issued to D2, the applicant being PW2.  D2 in proposing PW2 as a full member stated in the form that he had known PW2 for 2 years and that PW2 went racing at least once or twice a month.  There is also a declaration that he had received no advantage in proposing this application.  The form was signed by D2 and dated 23 August 2010 and reached Membership Services Department on the same day.  The application has yet to be approved.

21.  Exhibit P6 is racing membership application form number R001141 issued to D2, the applicant being Mr Fung Yiu Man.  Fung Yiu Man was the assumed name of ICAC undercover agent, Mr Fung Sai Wo Union, who is called as the 5^th prosecution witness (“PW5”). D2 in proposing PW5 as a racing member stated in the form that he had known PW5 for 6 months and that PW5 would like to be a horse owner.  There is also a declaration that he had received no advantage in proposing this application. The form was signed by D2 and dated 13 September 2010.

22.  Mr Dipo Chandiram Sani (“D5) of membership number S0049 was elected a voting member on 11 September 2003.  For 2010/2011 racing seasons he was eligible to propose 2 candidates for full membership and 5, or on request basis, 10 for racing membership.  He seconded PW5’s application and stated in the form that he had known PW5 for 6 months through D1 who had known PW5 for 17 years and that PW5 was very interested in horse racing, attending race meetings as much as possible and hoped to be a horse owner.  There is also a declaration that he had received no advantage in supporting this application.  The form was signed by D5 and dated 19 October 2010.

23.  Mr Ng Ka Ki Robert also known as Robert Woo (“D1”) of membership number W1286 and full membership since June 1984, Mr Tong Kam Pui (“D3”) of membership number T1022 and full membership since August 1985 and Mr Ho Wai Shek (“D4”) of membership number H2240 and racing membership since December 2003 were the 3 supporting members of PW5’s application and they stated that they had respectively known PW5 for 17, over 3 and 2 years.  They gave similar statements that PW5 loved horse racing.  There was also declaration by them that they had received no advantage for supporting the application.  The form was signed by them and dated respectively 11, 18 and 18 September 2010.     

24.  The form reached Membership Services Department on 4 September 2010.  The application has yet to be approved.

25.  The 3^rd prosecution witness Mr Chan Yuet Ming (“PW3”) and the 2^nd prosecution witness Mr Chan Chi Chung (“PW2”), the son of PW3, give evidence under immunity from prosecution granted by the Secretary of Justice.  PW2 is a taxi merchant by occupation.  PW3 received university education in the University of San Francisco in USA.  After graduation in 2002 he came back to Hong Kong to help the family in taxi and mini bus business.

26.  PW3 has known a fellow trader, Mr Yung Chak Man (“Yung”), for over 30 years.  He says that sometime in 2009 Yung took him to the Shatin Racecourse.  At the paddock a person struck up a conversation with him about horses.  The person talked for about 10 minutes.  PW3 learnt from Yung that the name of this person was Billy Tang. PW3 does not know his Chinese name.  When he returned to the restaurant of the racecourse to have meal he saw that Billy Tang was also sitting at the table and kept talking about his connections in HKJC and his experience in betting on horses.

27.  Billy Tang left after about 10 minutes.  He returned later and talked to PW3, asking if he was interested in becoming a member of HKJC.  PW3 said no.  When he realised that PW3 had a son he asked if PW3 was interested in helping his son to become one. PW3 said that he had to ask his son.  Billy Tang said that to become a member PW3’s son had to be of good character and personnel of HKJC had to be approached for signatures and the amount of money to be paid was $350,000.  He did not say to whom the money was to be paid.  PW3 gave him his telephone number before parting company.  PW3 later checked with Yung and his friends and were told that the sum was about right.

28.  PW2 says that in early 2009 PW3, his father, talked to him about finding someone to help him join HKJC as a member.  PW3 testifies that 2 to 3 days later Billy Tang telephoned him and raised the same question again.  He saw that the caller number was 6722 3291. Although PW3 had already talked to his son who did not say no he did not give Billy Tang a definite answer because he wanted to defer the decision. After that Billy Tang telephoned him about 5 to 6 times more about the same matter and PW3 eventually told him that he wanted to help his son to become a member of HKJC.  Billy Tang told him to prepare the cash of $350,000.

29.  PW3 took the cash from the taxi rentals he received from the 120 to 150 taxi he rented out every day and when Billy Tang called the next day to ask if the cash was ready he said yes.  Billy Tang went to his office at 4/F, 35 Whitfield Road, Causeway Bay to collect the money.  Billy Tang did not give him any receipt but told him to trust him and he would give the application form to him very soon.

30.  2 to 3 days later Billy Tang called, saying that the application form had been sent to his office. After going back to the office PW3 found an envelope with a form bearing the badge of HKJC inside.  He put it on the desk of his son., PW2.

31.  PW2 says that in early January 2009 PW3 introduced a person by the name of Billy Tang to him in PW3’s office to help him to apply for the membership of HKJC.  On a day in the same month he found on his desk an HKJC membership application form with the name of one Mr Freedman and member number F0333 printed on it.  The form was not yet filled in.

32.  In mid January 2009, Billy Tang telephoned him and he told Billy Tang that there were certain details in the form which he did not know how to fill in.  Billy Tang told him to fill in the form casually and the most important thing was to put down his personal particulars.  PW2 did accordingly.  Billy Tang gave the address of the proposer, Mr Freedman, to him and told him to go to see Mr Freedman at a specific time.  PW2 did so and met Mr Freedman who was expecting him.  At the request of Mr Freedman PW2 told him his background and Mr Freedman also told PW2 his background.  The meeting lasted for about 20 minutes and PW2 left the application form with Mr Freedman before he went away.

33.  Later, Mr Freedman called PW2, asking him to go to his place to take back the application form. PW2 did so.  When he got back the form he noticed that the part of proposer in page 2 of the form had been filled in.  PW2 says in court, however, that the statement in the form that he was interested in horse racing was not correct.

34.  In mid February 2009, Billy Tang telephoned PW2 saying that he had made an appointment for PW2 to see Mr TO Wing (“D10”).  He gave the address to PW2 and told him to take along the application form there.  PW2 did accordingly.  The meeting with D10 lasted for about 10 minutes during which they told each other their background.  D10 did not, however, fill in the application form.  PW2 then telephoned Billy Tang to tell him about the meeting.  PW2 says that Billy Tang had 2 telephone numbers and one of them was 67223291.

35.  Around late February 2009, Billy Tang telephoned PW2 saying that appointment had been made for PW2 to meet D10 in the coffee shop of Eaton Hotel.  PW2 and D10 had the meeting on 2 March 2009 and D10 signed as supporting member in page 4 of the application from.  PW2 points out, however, that he had not known D10 for 2 years as stated in the form.

36.  The meeting lasted for about 10 minutes and D10 told PW2 to go to see Dr Ho Wai Tak (“D9”) for him to sign the application form.  He gave the name card of D9 to PW2.   PW2 met D9 at his clinic on 10 March 2009 and after talking briefly D9 signed as a supporting member on page 3 of the form, stating that he met PW2 in a lunch meeting when PW2 was promoting his company products and had known PW2 for 1½ years.  PW2 points out that what was stated in the form was not true.

37.  PW2 says that Mr TONG Yeuk Fung and Mr Kwong Nga Cheong who signed the form as supporting members on 3 March and 5 May 2009 respectively were known to him.

38.  After obtaining all the necessary signatures PW2 telephoned Billy Tang and told him that there were still some parts in the form which he did not know how to fill in. Billy Tang again told him to fill it in casually.  PW2 understood this to mean that he could fill in anything he liked and he did accordingly.

39.  PW2 says that the statements in the application form that he liked horse racing and wanted to be a horse owner were not true and he had not told any of the 5 persons signing the form such information.  He in fact had no interest to join HKJC and only agreed to do so when his father told him that the membership could extend his social network and help his business.

40.  After filling in the application form PW2 submitted it to HKJC in person on 13 March 2009.  He confirms that the application form is Exhibit P4.  About 1½ years later he was informed that his application was successful and he went to HKJC to complete the formalities and paid $60,000 admission fee by means of a cheque made out to HKJC.  He became a racing member of HKJC.       

41.  PW3 says that he did not know D7, D9 and D10 at that time.  He only knew Mr TONG Yeuk Fung and Mr KWONG Nga Cheong.  Originally he thought that the $350,000 paid to Billy Tang was admission fee for PW2 to become a member of HKJC.  When PW2 told him that he had to pay several $10,000 to the club to become a member he began to think that the $350,000 was paid to those people signing for his son to become a member of HKJC.

42.  At the end of 2009 or early 2010 Yung invited him to the Shatin Racecourse, saying that his horse Bumble Bee was racing.  He met Billy Tang at the paddock and the latter asked him again if he wanted to become a member of HKJC.  PW3 said no but made a complaint that his son could not enjoy any of the facilities of HKJC after becoming a racing member.  Billy Tang asked if PW3 wanted to make his son a full member.  PW3 asked how much and Billy Tang said $1 million.  PW3 said he was not interested. 

43.  Afterwards Billy Tang called PW3 6 to 7 times and they talked about the price which Billy Tang reduced to $0.95 million.  PW3 stillrejected.  Later, Billy Tang called to reduce the price to $0.9 million.  PW3 asked if his son could surely get the full membership. Billy Tang said no, adding that it was difficult to find people of HKJC to sign their names and he was not the only person who took from the sum of money.

44.  Later, Billy Tang called to say that he could secure the full membership for PW3’s son in 2010 and PW3 agreed.  Billy Tang told PW3 that payment was by 2 instalments and he was to get ready $0.45 million cash first.  PW3 was of the understanding that the $0.9 million was to be given to people who signed their names to help his son to become a full member of HKJC.    

45.  PW3 took the cash from the taxi rentals.  The next day Billy Tang, after calling PW3 to confirm that the cash was ready, went to PW3’s office and PW3 gave him the money. There was no receipt issued and Billy Tang asked him to trust him.

46.  According to PW2, around January 2010 PW3 told him what Billy Tang had said about helping him to become a full member of HKJC.

47.  Later Billy Tang called PW2 and PW3, saying that arrangements had been made for PW2 to have meal at the country club to meet the person sponsoring his application. PW2 did not want to be a full member of HKJC, but agreed to go to the meeting because PW3 told him to do so.  In mid February 2010, he together with PW3 and Yung went to the country club. 

48.  According to PW3, at the entrance of the country club a tall and big-built Chinese male with an elderly westerner standing behind him were waiting for them.  PW2 and PW3 met these 2 persons for the first time.  The Chinese male asked if it was Billy who had told them to go there.  PW3 replied in the affirmative and the Chinese male introduced himself as Ng Ka Ki (‘D1”) and the foreigner as John Mackie “D2”). According to PW2 the Chinese male introduced himself as Robert Ng, but PW2 did not remember if he also told them his Chinese name.  PW2 adds, however, that during the meal the Chinese male did tell them his name was Robert Ng Ka Ki. 

49.  After sitting down in the Chinese restaurant in the country club D1 told PW2 that he was a member of HKJC and was a horse owner.  He said that D2 would help PW2 by signing his name.  He told PW2 about the background of D2 and told PW2 to remember it because HKJC might ask him during the interview.  D2 asked PW2 about his background and PW2 told him accordingly.

50.  Around July 2010, Billy called PW3 saying that the application form was available and told him to have the other $450,000 ready.  PW3 obtained the money from Hang Seng Bank by means of a cheque on 12 July 2010.  The next day Billy Tang come to the office of PW3 after confirming that the money was ready and PW3 gave him the cash in an envelope.  He in return gave an envelope to PW3 and PW3 saw that there was a document bearing the badge of HKJC inside.  He put it on the desk of PW2.  PW2 confirms that he found the application form on his desk.

51.  PW2 says that in late July 2010, Billy Tang telephoned him saying that he had made an appointment for PW2 and Yung to see D2 in Shatin.  He told PW2 to take along the application form to the meeting.  PW3 says that PW2 told him about it and he drove PW2 and Yung there but he stayed in the car when the two went to see D2.

52.  PW2 says that he and Yung met D2 at his office at 1207 Delta House, Shatin and D1 was also there. The meeting was, however, cancelled because D2 said that he had to go for an operation on his leg and a new appointment was made.  PW2 and Yung went to the place again the following week and D1 was also in the office but in another room.  D2 asked PW2 about his background and made notes of what PW2 said.  The meeting lasted for about 20 odd minutes.  D2 told PW2 to leave the application form with him and to return to his office in a week’s time.

53.  PW2 went to D2’s office a week later which was about 20 August 2010 alone.  D2 returned the application form which he had filled in and signed to PW2. The form is Exhibit P5.  PW2 points out that the information given by D2 in the form that he had known PW2 for 2 years and that PW2 went to horse racing at least once or twice a month was not true.

54.  PW2 says that the application form was submitted to and received by HKJC on 23 August 2010 and the date of 24 August 2010 he put down next to his signature in the form was a mistake.  He confirms that the application form is Exhibit P5.

55.  The prosecution asks for the leave of the court for PW2 to make a dock identification of Billy Tang which is objected to by counsel for D8.  After hearing submissions the court rejects the application on the ground that PW2 had only seen Billy Tang on 2 occasions of unknown but no doubt very short duration about 1½ years ago.  The court is of the view it is unfair to D8 to allow PW2 to make a first time dock identification under such circumstances.  Full reasons are given during the trial.

56.  The prosecution also asks for the leave of the court for PW3 to make a dock identification of Billy Tang which is objected to by counsel for D8.  After hearing submissions the court allows the application and PW3 identifies D8 to be Billy Tang.  The court has given the reasons for the ruling during the trial and will come to this issue again in the later part of this judgment.

57.  The 4^th prosecution witness is Mr TSUN Hon Yin, Senior Investigator of ICAC (“PW4”).  On 16 November 2010 and he and his colleagues arrested PW3 under section 9 of the Prevention of Bribery Ordinance, Cap 201 and took him to the ICAC offices.  He interviewed PW3 under caution with Mr CHAN Kai Cheung, Assistant Investigator, from 0827 to 0918 hours and from 1706 to 1722 hours on the same day.  Both interviews were video-recorded. 

58.  He says that before he started the interviews he explained the rights to PW3 and gave a notice of the rights to him which PW3 signed after understanding the rights.  He did not notice PW3 having any sign of being physically unwell or being confused about or not understand his rights.  At the end of the first interview PW3 told them that his heart was beating very fast and he was feeling a bit unwell.  After the recording machine had been turned off PW3 lied on the floor to take a rest.  PW3 was taken to see a doctor before the second interview.  PW4 says that had ascertained that PW3 was fit to attend both interviews and that during the interviews he understood and answered the questions put to him.

59.  The 5^th prosecution witness Mr FUNG Sai Wo Union (“PW5”) is an Investigator of ICAC.  In 2010 he took part in Operation Delhi which was an investigation into payment and acceptance of advantages in connection with membership applications of HKJC.  He acted as an undercover agent and adopted a pseudonym of FUNG Yiu Man Daniel.  The 6^th prosecution witness Mr FONG Chi Kin, Senior Investigator of ICAC, posed as his employee and assumed the undercover name of Michael.

60.  On 31 January 2010 PW6 went to the Shatin Racecourse.  At the observers gallery of the members stand he saw a person named Billy TANG Kang Chung.  PW6 had seen the photograph of this person and he noticed that the friends around him called him Billy or Elder Brother Billy.  There is no dispute that this person is D8.  PW6 struck a conversation with him about horses.  He also told D8 that he wanted to do wine business and D8 said that he was familiar with red wine business in China and could introduce a red wine supplier to PW6.

61.  On 1 March 2010, through the arrangement of D8, PW5 and PW6 together with D8 went to an office in Delta House, On Yiu Street, Shek Mun, Shatin where D8 introduced a person by the name of Robert NG Ka Ki, (D1), to the 2 prosecution witnesses and D1 talked to them about wines business.

62.  After the meeting D8, at the invitation of PW6, had lunch with the 2 prosecution witnesses.  They chatted about business and D8 said that he knew a lot of horse owners.  PW5 says that he told D8 that he was interested in owning a horse.  Throughout March and April 2010 PW6 was in contact with D1 and D8, both over the telephone and face to face, about wine business and D1 provided a red wine sample to PW6.  PW6 visited the office of D1 on a number of occasions and met a person named John Mackie (D2) there.  PW6 eventually placed an order for red wine in the amount of $27,000 on 15 April 2010 and at the end of April 2010 the wine was delivered.  On 30 April 2010 in a meeting in the American Club D1 told PW6 that he was an HKJC member and talked about the procedure to join HKJC.  He also said D8 could help PW6.

63.  Throughout May and June PW6 continued to be in contact with D1 and D8 regarding wine business.  On 14 June 2010 in a meeting at D1’s office they talked about wine business and D1 also explained the procedure of becoming an HKJC member.  He told PW6 that D8 could assist him in getting the membership application form and money had to be paid to a middle man.  As to the amount of money D1 said that for a middle man like himself it was about $200,000 to $360,000 which was to be paid before the application was completed.  D1 said that the official admission fee of HKJC was about $10,000 and the money paid to middleman was not charged by HKJC but was for 2 voting members to sign the form and 3 HKJC members to support the application. He indicated that he could arrange for these 2 voting and 3 supporting members and that D2 was a voting member.  He then showed PW6 a set of the HKJC membership application form.  He told PW6 to take the form to PW5 and said he needed to be paid $250,000 as middleman to arrange the relevant HKJC members to sign the form.  PW6 gave the form to PW5.

64.  On 21 June 2010, PW5 and PW6 taking along the application form had a meeting with D1 at D1’s office to discuss about the intended application of PW5 to be member of HKJC.  PW5 says that this was the first time he met D1 and D1 gave him his name card (Exhibit P8).  D1 said that the application form had been issued to D2 and he would arrange D2, Stanley Freedman (“D7”) and 3 other HKJC members to support the application and the $250,000 had to be paid before making such arrangement.  D1 pointed out that D2 was the proposer and D2 would see PW5 once or twice.  He had arranged a meeting for D2 to see PW5 later that day.

65.  D1 explained that the end of June was the deadline for membership application for that racing season and if procedure was not completed by that date fresh application would have to be made the next season.  During the meeting D2 entered the room and asked who was applying to be a member and he gave his name card to PW5.

66.  D1 asked the 2 prosecution witnesses to pay the money right the way but PW5 replied that he had not yet prepared the money and also did not want to make a decision within such a short time.  D1 allowed them to give a reply by 1400 hours and eventually PW6 told D1 over telephone that PW5 did not want to make up his mind so quickly and asked D1 to cancel the meeting with D2.

67.  On 30 June 2010 PW6 returned the application form to D1 and told D1 that PW5 was willing to pay the money.  D1 said he would give a new application form to them.

68.  On 26 July 2010 PW5 and PW6 went to D1’s office and PW5 took along $250,000 which had been photocopied (Exhibit P15).  The meeting was recorded and, according to Admitted Facts 1, the recording was downloaded to 2 compact discs which are produced as Exhibits P9 and P10.  The transcript of the recording in Exhibit P9 is Exhibit P11 and the certified English translation Exhibit P12.  During the meeting D1 asked his colleague Mr Alan Lam into the room.  It is not in dispute that he is D6.  D1 told PW5 to give it to D6.  PW5 gave the $250,000 cash in an envelope to D6 and said, “Here is $250,000, count it.”  D6 took the envelope and looked at D1.  D1 told him to put it down.  D6 put it on D1’s desk. D1 told D6 to give something to PW5 and D6 gave PW5 an envelope.  There was an HKJC membership application form (Exhibit P6) with application portfolio (Exhibit P16) for the 2010/2011 season inside.

69.  They then talked about how to complete the application form and D1 told PW5 to contact D6 after completing the form (Exhibit P6) and, according to the evidence of PW5, D6 would arrange for him to meet a westerner.  D6 was present when this was said. They then exchanged name cards.  PW5 and PW6 each received a name card from D6 (Exhibit P13 and P14).  D6 said that he was in computer cases business with a factory in China.  D6 told PW5 that if he had any problem in filling in the form PW5 could contact him.

70.  On 30 July 2010 PW5 telephoned D6 twice and the conversations were recorded in a mini disc. The mini disc is produced as Exhibit P17, the transcript Exhibit P18 and the certified English translation Exhibit P19.  In the second call D6 said that he had made arrangement for the westerner to see PW5 at 1030 hours on 3 August 2010.    

71.  On 3 August 2010 PW5 and PW6 attended the meeting with D2 at the office in Delta House.  D6 took them to a room next to that of D1 and D6 was also in the meeting.  The meeting was recorded and, according to Admitted Facts 1, the recording was downloaded to 2 compact discs which are produced as Exhibits P20 and P21.  The transcript of the recording in Exhibit P20 is Exhibit P22 and the certified English translation Exhibit P23.  PW5 gave his name card and the partly completed application form to D2. D2 asked PW5 about his background and put it down in the application form.  PW6 says that during the meeting D6 left the room for 10 to 20 seconds to ask a colleague to find out the address of Lee Yuen Seafood Restaurant in North Point.  Before the conclusion of the meeting arrangement was made for PW5 to meet D2 again on 9 August 2010 in that restaurant.

72.  In August and September 2010 PW5 had a number of calls and meeting with D2 about his application to become an HKJC member.    

73.  In October 2010 PW6 telephoned D1 to arrange a meeting for PW5 to see D1 and Mr Dipo Sani (D5). On 19 October 2010 PW5 met up with D1, D6 and a person PW5 did not know and they took PW5 to the Shanghai Fraternity Association in Central by car.  D1 was driving and during the journey D1 asked PW5 for his personal particulars and told PW5 that he was taking PW5 to see an Indian who would support his application.  Only PW5 and D1 were in the meeting with D5.  D1 introduced D5 to PW5 and PW5 gave the application form to D5.  D1 told D5 the background of PW5 and D5 put it down in the application form.

74.  PW5 met Daniel TONG Kam Pui (D3), and HO Wai Shek (D4) on 26 October 2010 in D1’s office when D1 introduced the 2 persons to him.  D1, D3, and D4 signed the form as supporting members.  PW5 did not know why they put down the date as 18 September 2010 in the form.

75.  On 4 November 2010 PW5 personally handed in the form to HKJC.        

76.  PW6 says that he had telephone contact with D8 and the mobile telephone number of D8 was 63335177.

77.  The prosecution seeks to adduce in evidence a video-recorded interview under caution of D6 conducted between 2045 hours and 2205 hours on 16 November 2010 but is objected by D8 on the ground that it is not voluntary in that D6 had been subject to inducement and threat.

78.  The court conducts a voir dire by way of alternative procedure.  In this connection the prosecution called the 7^th and the 8^th prosecution witnesses.

79.  The 7^th prosecution witness is Mr KAM Wai Bun, Investigator of ICAC (“PW7”).  On 16 November 2010 at about 1400 hours together with some colleagues, including the 8^th prosecution witness Mr LAM Man Chiu, Assistant Investigator (“PW8”), he arrested D6 at Morrison Hill Road after D6 and his wife had alighted from a bus.  They separated D6 from his wife and told D6 the reasons of the arrest.  PW7 then told D6’s wife what happened.  PW7 and PW8 next took D6 back to his residence in Chiu Ping Estate, Kwun Tong by car for a search and sized some documents and name cards.  They also took D6 to search his office in Delta House in Shatin and made some seizures.  After that D6 was taken to ICAC Headquarters in North Point where he was handed over to the detention centre for documentation and detention.

80.  After D6 had his dinner PW7 collected him from the detention centre and together with PW8, interviewed him under caution commencing at 2045 hours and concluding at 2205 hours.  The interview was video-recorded.  PW7 says that before the interview started D6 said that he had stomach discomfort.  During the interview PW7 asked him if he needed medical treatment and if he could do the interview.  D6 replied that he did not need medical treatment for the time being and he could do the interview.  PW7 told him that if he at any time did not feel well he could say so and arrangement would be made for him to see a doctor.  D6 said alright. About 40 minutes after the interview D6 informed the detention centre that he needed medical treatment and he was taken to see a doctor by PW7 and PW8.  He was hospitalised for palpitation and high blood pressure.

81.  Both PW7 and PW8 deny all the allegations put by D6.

Evidence of D6 in Special Issue

82.  D6 elects to give evidence in the voir dire but called no witnesses.  He says that he is an employee of the Sure Profit Company of D1 and he has a clear record.  On 16 November 2010 he was taken back to his home for a house search.  PW7 was one of the ICAC officers who took him there.  He was friendly to D6 and always chatted with D6.  While at D6’s home PW7 said something to the effect that poor people were so poor and rich people were so rich.  PW7 also told him about the search of the home of a couple in which nothing was found because the couple had hidden the things in some other place.  It was, however, discovered by the ICAC officers.       

83.  Before leaving D6’s home, PW7 explained to him about taking him for a search at his office in Shatin.  On the journey to Shatin PW7 said that since D6’s boss knew so many people he should have tips and D6 should have won a lot of money.  D6 replied that he had always lost and had lost a lot of money.  PW7 went on to say that since the boss of D6 knew so many people of high status he could make a lot of money introducing them to become HKJC members.  D6 replied that he did not know.  PW7 also said that the boss of D6 was so rich there was no need for him to do it.  D6 denied the 3 allegations put to him by the ICAC officer and he felt that he was innocent and angry.  PW7 told him that if he cooperated he would be fine.  D6 says that PW7 did not say what would happen if he did not cooperate. 

84.  While in the office in Shatin PW7 said that the boss of D6 was so rich and yet so mean that there was no pantry.  He told D6 that he was only an employee and he could talk about what his boos had done.  D6 thought that since he had never done it he would tell everything and that he might be in trouble if he did not do so.

85.  D6 says that when he said he had not committed any offence PW7 accused him of having received $250,000.  D6 was angry and said PW7 was framing him in accusing him of receiving $250,000.  The ICAC officers then said they would no longer talk about business but would only chit chat.

86.  At the conclusion of the voir dire the court finds that the prosecution has proved beyond a reasonable doubt that the video-recorded interview is voluntary in nature and there is no reason for the court to exercise its discretion to exclude it.  The interview is therefore admitted into evidence.  The court now gives brief reasons for the ruling.

87.  PW7 and PW8 give simple and straight forward evidence and their evidence corroborates each other in all the material particulars.  Their evidence also makes sense.  The court finds them to be honest and reliable witnesses and accepts their evidence.

88.  D6 keeps changing his evidence in court.  In cross-examination he agrees that everything he said in the interview was truthful and he is sure about it.  It is pointed out to him that in dialogue numbers 260 to 263 in the transcript of the interview he said that PW7 and PW8 had not made him talk by any intimidation, coercion or inducement.  When he is asked whether this is truthful, he becomes evasive and instead of answering the question directly says that at that time the ICAC officer said that if he told what he knew he would be fine, but he was charged so he felt it was unfair.  When the question was repeated he says that it is truthful.  Later on he, however, changes to say that he might have given wrong answers without consideration during the interview.  In re-examination he says that during the journey from his home at Kwun Tong to Shatin the ICAC officers said that if he provided information he would be fine.  He felt at the time it was an inducement.  This contradicts his evidence that what he said in dialogue numbers 260 to 263 is truthful.

89.  In cross-examination he at first maintains that the ICAC officer did not say he would be in trouble if he did not cooperate.  In the later part of the cross-examination he changes to say that ICAC officers said that if he did not tell it he would be in trouble.  When it is pointed out to him that he is contradicting himself he says that the ICAC officers did not say it in the office but said so on the way from Kwun Tong to his office.  This is something which he has never mentioned in his examination-in-chief and the early part of the cross-examination.    

90.  During the course of his evidence in court D6 says for a number of times that he gave the answers willingly in the interview.  This no doubt truly reflects his mental state during the interview.  What he said during the interview is largely exculpatory.  If he was really under intimidation, coercion, threat or being induced at that time he would not give such answers which surely would not please the ICAC officers.  The court has watched the video recording of the interview.  D6 appeared to be relaxed and at ease during the interview and answered the questions without any hesitation.

91.  After considering all the relevant evidence the court is of the view that D6 is not honest and reliable witness and does not accept his evidence about his allegations against the ICAC officers.

92.  On the strength of the evidence of the ICAC officers and the video recording of the interview the court is satisfied beyond a reasonable doubt that the interview is voluntary and so rules and admits the interview into evidence during the trial.

Admitted Facts

93.  As pointed at the outset the evidence of the prosecution also includes 4 sets of admitted facts. Matters dealt with in Admitted Facts 1 are:

(a) types of membership of HKJC and the application procedure;

(b) D6 being employed by D1 as a clerical staff of Sure Profit Trading Limited;

(c) the recording of the meetings on 26 July 2010 and 3 August 2010 and the telephone calls on 30 July 2010 and the production of the relevant compacts discs and mini disc and transcripts;

(d) the arrest of D6 by ICAC on 16 November 2010 and D6 having a clear record.

94.  In Admitted Facts 2 more details are given in respect of the procedures for application to become a racing and a full member of HKJC.  It is also stated that D8 was arrested by ICAC on 16 November 2010 and he denied the offences in the video-recorded interview.

95.  Admitted Facts 3 deals with the video-recorded interview under caution of D6 and the production of the DVD and transcript.

96.  In Admitted Facts 4 the details of PW3 encashing a cheque of $450,000 on 12 July 2010 at Hang Seng Bank are set out.

Audio Recording of Telephone Calls

97.  According to the recording PW5 telephoned D6 on 30 July 2010 at about 1142 hours.  D6 received the call but was not free to talk to PW5.  PW5 telephoned him again later and D6 told him that he had made arrangement for a meeting with the gweilo (transliteration meaning a westerner) the following Tuesday.  He told PW5 to bring along the form to the meeting.

Audio Recording of Meeting on 26 July 2010

98.  According to the recording the meeting was attended by D1, D6, PW4 and PW5.  They talked about the migration of D1’s family to USA and matters relating to keeping of mistresses. PW5 told D1 he had taken along the $250,000 and D1 told him to give the money to D6 when D6 came in.  D1 also said that he would make arrangement for people to sign the application form.  D1 asked D6 who was outside to come into the room.  When D6 did so D1 told PW5 to give the whole envelope to D6.  PW5 said, “Here is 250,000. Please count.”  D1 said, “It’s okay.  You put it down.”  D1 told PW5 and D6 to exchange name cards and said that after PW5 had filled in the form he could communicate with D6 and D6 would arrange for PW5 to see the westerner.  D6 said that he could be contacted at the office there during office hours because he was working there, dealing in bags for computer manufactured by his factory in Dongguan for export to USA.   

Audio Recording of Meeting on 3 August 2010

99.  According to the recording the meeting was attended by D2, D6, PW5 and PW6.  During the meeting D2 asked PW5 about his background.  They with the help of an unknown female checked out the address of the Lee Yuen Seafood Restaurant in North Point and they arranged to have lunch there on 9August 2010 at 1230 hours.

Record of Interview of D6

100.  The record of interview of D6 is basically exculpatory in nature.  The court will come to it as and when required during the course of this judgment.

Case to Answer

101.  At the conclusion of the prosecution case both D6 and D8 make no submission of no case to answer.  After considering the evidence the court finds a prima facie case has been made out in respect of the charges D6 and D8 are facing and there is a case to answer.

Evidence of the Defence

102.  Both D6 and D8 elect not give evidence and do not call any witnesses.  The court bears in mind that this is their legal right and has not as a result held any prejudice and drawn any adverse inference against them.

Evaluation of Evidence

103.  PW1 is a staff member of HKJC and his 5 statements are admitted into evidence under section 65B of the Criminal Procedure Ordinance, Cap 221.  His evidence basically concerns the operation of HKJC and is not challenged by the defence.  The court finds his evidence honest and reliable and accepts it.

104.  PW2 and PW3 give evidence under an immunity granted by the Secretary of Justice.  The court considers their evidence with extreme care and caution.  Their evidence concerns Charges 6, 7 and 8 which are against D8.  The evidence of PW2 is not challenged by D8 in the sense that D8 has never put to him directly that any part of his evidence is untrue or fabricated.  The court bears in mind that this is no doubt a result of the court not giving leave to PW2 to make a dock identification of Billy Tang in court.  The court therefore does not take it that D8 accepts PW2’s evidence.  The court will still consider and evaluate his evidence in full.

105.  PW2 and PW3 give the court an impression that they are sincere witnesses.  Their evidence is straight forward without any embellishment and is consistent with each other in all material particulars. PW2 and PW3 in giving evidence also implicate themselves.  If the incidents which they describe in their evidence have not happened then why should they make them up when in doing so they do not only implicate D8 but also themselves?  No doubt these incidents must have happened and PW3 must have paid out the 3 sums of money.  If the one who received the money was not D8 then why should PW3 make up false allegations against him? There are no reasons at all for PW3 to do this.  It would be much easier for PW3 to point the finger at the true culprit instead of framing D8 up.  The court will deal with the identification of D8 at a later stage and it will become apparent from the conclusion reached by the court in this issue it is impossible that PW3 would have made a wrong identification.  No doubt PW2 and PW3 must be telling the truth in their evidence.

106.  There are, however, a few aspects of the evidence of PW2 and PW3 that the court has to deal with.  In a statement to ICAC PW3 said that he talked to the people at the table during lunch inside the restaurant in the racecourse about his son joining HKJC as a member but in court he says that he did not do so. PW3 clarifies in court that he did not talk to the people about the matter during lunch but did so later when they were watching horses through the windows.  According to the evidence of PW3 those people at the lunch were only Yung and his children.  It is always his evidence that he had talked to Yung about the matter.  It is therefore immaterial whether he did so during lunch or at a later time.  There is no need for PW3 to lie about it.   Bearing in mind that this happened about 2 to 3 years ago, it is not surprising that he was confused as to when and where this took place.  He has now made the clarification in court and this does not affect his credibility and reliability as a witness.

107.  In the video recorded interview conducted after his arrest by the ICAC PW3 said that he had asked Yung Chak Man to introduce Billy to him to help his son’s application to become a racing member and a full member of HKJC.  He also said in the video-recorded interview that he did not know the surname of Billy, did not remember his telephone number and did not remember the names of the Chinese male and the westerner they met at the country club.  In the video-recorded interview he said that Billy had gone to his office to discuss about the price and that the 2 instalments of payment for the full membership application were withdrawals from the bank.  All these are different from what he says in court.  There are also other discrepancies between what he said in the video-recorded interview and his evidence in court.

108.  PW3 explains that after he was arrested by the ICAC he was confused and frightened and his heart was beating so fast that he had to lie down on the floor at one stage.  He also says that on the night before his arrest he had drunk some wine which affected his sobriety.  As a result he gave confused answers and mixed up about sequences of events during the video-recorded interview.  Being frightened and confused are common and natural responses of a person arrested by a law enforcement agency.  It is also common for an arrested person to give answers which are inaccurate and confused when interviewed under caution.  PW3 is a merchant running the business of taxi and minibus and being arrested by ICAC was surely not something he would often encounter.  It is not surprising that he would have such responses.  PW4 says in evidence that there was no sign of PW3 being confused about his rights.  This does not contradict PW3’s evidence because what PW3 says is that he was confused about things happened in this case not his rights during the video-recorded interview.  Moreover, when an interviewee was confused about the things happened it was not easy for an interviewer to notice.  The interviewer might still find the person fit to be interviewed.

109.  PW3 also points out in court that at the end of the video-recorded interview he told ICAC interviewing officers about his palpitation and his desire to see a doctor and that this part of the conversation was recorded during the interview.  This part of PW3’s evidence is corroborated by that of PW4.  The court finds that the explanation given by PW3 is reasonable and credible.

110.  Although PW5 gives a telephone number of D8 which is different from that given by PW2 and PW3 in court, it does not contradict the evidence of PW2 and PW3 because they say very clearly that D8 had 2 telephone numbers and they do not remember the other number.

111.  After considering all the relevant evidence the court finds PW2 and PW3 to be honest and reliable witnesses and accepts their evidence.

112.  PW4 is an ICAC officer who arrested and interviewed PW3 under caution which was video-recorded.  His evidence is not challenged by the defence.  The court finds his evidence truthful and reliable and accepts it.

113.  PW5 and PW6 were undercover agents.  Their evidence concerns Charge 3 which is against D6.  They give evidence in an impartial manner.  They have not exaggerated their evidence to make their case against D6 stronger.  Some part of their evidence is supported by the recordings of the telephone calls and meetings.  Their evidence is consistent with each other.  The court finds them to be honest and reliable witnesses and accepts their evidence.

114.  The court has already dealt with the evidence of PW7 and PW8 when the court deals with the special issue.

Charge 3

115.  This charge is against D6 only, alleging him of aiding and abetting D1 accepting an advantage of $250,000 in helping PW5 to join HKJC as a racing member.  Although D1 has pleaded guilty to the offence of agent accepting an advantage in relation to the $250,000 and admitted the facts, his guilty plea and the facts admitted do not constitute admissible evidence against D6 for the purpose of the resent trial.  Although D6 has not raised the issue that D1 had not committed the offence, in the absence of any admission that he had the court has to be satisfied beyond a reasonable doubt that he had really committed the offence as a principal.

116.  In order to succeed in Charge 3 the prosecution must therefore prove beyond a reasonable doubt:

(a) D1 being an agent of HKJC

(b) Without lawful authority or reasonable excuse accepting an advantage of $250,000;

(c) As an inducement to or reward for or on account of D1 doing an act in relation to the affairs or business of HKJC

(d) D6 aiding and abetting D1 to do so.

HKJC Agent

117.  According to PW1’s evidence D1 has been a full member of HKJC since June 1984. When he deals in the affairs or business of HKJC, including providing racing membership application form to an applicant and supporting the application of an applicant to be a racing member of HKJC, he is no doubt acting as an agent of HKJC.  It follows that in the present case when he acted as the supporting member of PW5’s application and arranged proposer, seconder and other supporter for him he was acting as an agent of HKJC.

Illegal Advantage

118.  The evidence of PW5 and PW6 is very clear.  They paid $250,000 to D1 for D1 to help PW5 to become a racing member of HKJC.  After receiving the money he arranged D2 to be the proposer and provided PW5 with the application form issued to D2.  He also arranged D5 as the seconder and D3, D9 and himself as the supporters.

119.  The rule of HKJC was that its members were not allowed to accept any advantage in proposing, seconding or supporting membership applications and HKJC had informed all members of such prohibition by means of circulars.  It is impossible that D1 did know there was such a rule.  As a matter of fact when he signed as a supporter for PW5’s application he made a declaration in the application form that he had not received any advantage in supporting the application.  The circumstances of the case are clear that D1 did not the lawful authority or reasonable excuse to accept the $250,000 and he received the money No doubt the moneey was illegal advantage and D1 received it knowingly full well its illegal nature.

Business or Affairs of HKJC

120.  Matters relating to applications to become members of HKJC are clearly business or affairs of HKJC. What D1 did in helping PW5 to become a racing member of HKJC as detailed above were no doubt acts in relation to the affairs or business of HKJC.

Inducement, Reward or On Account Of

121.  D1 did all these acts after receiving the $250,000 from PW5.  The money must be an inducement to or reward for or on account of D1 doing all these acts to help PW5 to become a racing member of HKJC.

122.  No doubt D1 had committed the offence which D6 is alleged to have aided and abetted.  The question to ask is whether D6 aided and abetted D1 in committing the offence.

Role of D6

123.  It is not in dispute that D6 was employed by D1 as a clerical staff of Sure Profit Trading Limited. According to the evidence of PW5 and PW6 he first entered into the scene on 26 July 2010 during a meeting the 2 witnesses had with D1 at D1’s office.  In the course of the meeting D1 asked D6 to go into the room where the meeting was held and D6 did so.  The conversations in the meeting were recorded and the recording confirms this fact (Exhibit P12 dialogues 326 to 341).  D6 himself admitted in the video-recorded interview that he was there (Exhibit P27 dialogue 1205 to 1240).

124.  According to the evidence of PW5 and PW6 and the recording of the meeting (Exhibit P12 dialogue 343 to 346) PW5 gave the envelope containing $250,000 to D6 and D6 gave the envelope containing the HKJC racing membership application form to PW5.  When PW5 handed over the envelope he said, “Here is 250,000.  Please count.”  This was recorded in dialogue 347.  Although D6 on the instruction of D1 put the envelope on D1’s desk he no doubt must know that it contained $250,000.           

125.  In the video-recorded interview D6 admitted that he later came to know that PW5 was applying for HKJC membership.  D6 was evasive about how he came to know about this in the video-recorded interview.  At first he said it was “they” who told him about it.  On being further questioned he said it was D1 but he finally changed to say that he could not remember whether it was D1 who told him about it.

126.  D1, in the presence of D6, told PW5 to contact D6 after filling in the form and D6 would arrange for PW5 to see 2 westerners.  This was recorded in dialogue 355.  There was then discussion as to how to fill in the form (dialogues 355 to 368).  All these were done openly inside the room.  D6 must have heard what was said.  Although the conversation involved him  he did not ask any question or raise any query.  This shows that he was fully aware of what was happening.

127.  PW5 and D6 then exchanged name cards and talked about how to make future contacts (dialogues 375 to 424).  According to the evidence of PW5 he did contact D6 later and D6 did take him to see D2 who is a westerner.  That meeting was also recorded (Exhibits P20 to P23).  During that meeting D2, in the presence of D6, asked PW5 openly about his background and put the details down in the application form.  This shows that PW5’s application to become an HKJC member was no secret to D6.  D6 must know at or even before the time he handed the envelope to PW5 that PW5 was applying to be a member of HKJC.  He must also know that the envelope he gave to PW5 contained the application form.  D6 was obviously trying to tune down his role when he said in the video-recorded interview that he came to know about it later and did not remember whether it was D1 who told him about it.

128.  During the video-recorded interview D6 more than once claimed that he had not taken part in any matters of D1 connected with HKJC and knew nothing about them.  This is in direct contradiction to the recordings of the meetings on 26 July and 3 August 2010 and the telephone calls on 30 July 2010.  What D6 said was obviously untrue and is not accepted by the court.

129.  On receiving the money D6 handed over the application form to PW5.  D1 then talked about how to fill in the form and about D6 arranging PW5 to see the westerners.  D6 must know that the money paid by PW5 was for the application form and for D1 assisting him in the application.

130.  In the video-recorded interview the ICAC officer asked D6 whether a person had to pay D1 in return for the assistance in the membership application.  D6 in reply said that he really had no idea, but his feeling was that it would be unreasonable for someone to assist in the application without any reasons.  He went on to say that his feeling was that it was probably paid but he did not personally witness it.  Again D6 was obviously trying to lessen his role by these answers which will become clear from the following analysis by the court that they cannot be true.

131.  When the $250,000 was handed by PW5 to D6, despite the request of PW5, D1 did not count or cause the money to be counted.  Although this was a large sum of money it was in cash instead of being a cheque.  PW5 did not ask for a receipt and D1 did not arrange for a receipt to be issued to PW5.  All these bore the traits of a transaction which was illicit.  The money was definitely not proper payment to HKJC in connection with PW5’s membership application.  It is impossible that D6 would not have known about it or would have thought otherwise.

132.  Moreover, D1 knew very well that he was committing an offence in accepting the $250,000 from PW5 in return for supporting his application for HKJC membership.  D1 would definitely not allow an outsider to get as closely involved as D6 for the fear that his offence might be exposed.  If D6 was an outsider it is impossible that he would have allowed D6 to receive the envelope containing the money from PW5.  If D6 was an outsider D1 would have become extremely alarmed when PW5 said in the presence of D6 that the envelope contained $250,000 and would not have allowed D6 to continue to be involved.  Despite what had happened, during the journey in which D1 took PW5 to the Shanghai Fraternity Association to see D5, D1 still openly asked about the background of PW5 and said he was taking PW5 to see an Indian who would support his application.  All these must show that D6 was a party to the illegal deal.

133.  It is common sense that HKJC did not allow its members to accept advantages.  The court has already come to the conclusion that D6 was a party to the illegal deal.  He must know that there was such a prohibition.

134.  It follows that D6 had full knowledge that the $250,000 was illegal advantage paid by PW5 to D1 for the application form and the assistance of D1 in the application.  D6, however, still handed over the application form to PW5, received the envelope containing the $250,000 from PW5, exchanged name cards with PW5, made arrangements for future contact with PW5 and arranged PW5 to see D2.  His intention was no doubt to assist D1 in accepting the advantage and providing assistance to PW5 in his membership application and he so assisted D1.

135.  No doubt D6 aided and abetted D1 in commission of the offence of agent accepting an advantage.  The court is satisfied doubt that the prosecution has proved all the elements of Charge 3 beyond a reasonable doubt and D6 is convicted of it.             

136.  As rightly pointed by prosecution in its final submission D6 told a number of lies in the video-recorded interview.  The court, however, is the view that a person could tell lies for all sorts of reasons, not necessarily through a consciousness of guilt.  The court has therefore not drawn such an inference as urged by the prosecution. Having now found that D6 knowingly assisted D1 in accepting the illegal advantage it becomes quite clear why he should have lied in the video-recorded interview.

Charges 6, 7 and 8

137.  These charges are against D8 only and are offences of dealing with property known or believed to represent proceeds of an indictable offence.  They concern the sum of $350,000 and the 2 sums of $450,000 which the prosecution alleges to have been paid by PW3 to D8.

138.  The key prosecution witness in these 3 charges is PW3 while the evidence of PW2 is also of significance.  The court has already analysed and evaluated their evidence and come to the conclusion that they are honest and reliable witnesses and accepts their evidence.

139.  PW3 gives clear evidence that the 3 sums of money were given to a person by the name of Billy Tang.  PW2 says in evidence that he met a Billy Tang twice and was in frequent telephone contact with Billy Tang who made arrangements for him to meet the HKJC members who proposed, seconded or supported his membership application.  The identity of Billy Tang in the evidence of PW2 and PW3 is an important issue to be considered.

Identification of D8

140.  As pointed out above PW3 is given leave by the court to make a first time dock identification of Billy Tang in court and he identifies D8 as Billy Tang.  The court has to determine the credibility and reliability of the identification and how much weight, if any, is to be attached to such evidence.  According to the evidence of PW3 he saw Billy Tang on at least 5 occasions.  He met Billy Tang twice in the racecourse and on both occasions the two had conversations face to face and the durations of the 2 occasions were long.  PW3 also met D8 3 times in his office.  Although these 3 meetings did not last long they were all memorable encounters.  The 2 of them did not only have conversations face to face PW3 also handed over a total sum of $1.25 million to D8 without being issued a receipt.  PW3 no doubt must know D8 well and have a deep impression of him.

141.  The court bears in mind that PW3 last saw D8 around July 2010 which was about 1 year 8 months before this trial.  However, the court is of the view that the present case is one of closed encounter instead of a fleeting glimpse and is therefore one of recognition instead of identification.  In fact it is clear from the cross-examination of PW3 by D8 that D8 does not dispute that he and PW3 met each other in the racecourse on 2 occasions.  The court has already held that PW3 is honest and reliable and has accepted his evidence.  The court is of no doubt that his evidence that Billy Tang is D8 is credible and reliable and will attach full weight to and rely on it.

142.  Although the court does not give leave for PW2 to make dock identification of Billy Tang in court it is of no doubt that the Billy Tang he dealt with was the same Billy Tang whom PW3 dealt with.  Both PW2 and PW3 say that Billy Tang had 2 mobile telephone numbers.  One of the mobile telephone numbers they used to contact Billy Tang were the same which was 6722 3291.

143.  PW2 and PW3 was in contact with Billy Tang in respect of the same matter which was helping PW2 to become a racing and then a full member of HKJC.  The purposes of PW2 and PW3 contacting Billy Tang were always inter-related and were often one event followed the other in the sense that certain event which took place between PW3 and Billy Tang led to some subsequent event which happened between PW2 and Billy Tang.  For example PW3 after paying Billy Tang and receiving the application form from him put it on the desk of PW2.  Then a Billy Tang telephoned PW2, and PW2 told him that there were certain details in the form which he did not know how to fill in.  Obviously, these 2 events were continuous happenings.

144.  Billy Tang told him to fill in the form casually and the most important thing was to put down his personal particulars.  Billy Tang never asked him what form.  This clearly showed that the Billy Tang contacting PW2 knew perfectly well and exactly what was going on and he was contacting PW2 after knowing that the application form had been received by PW2.  This Billy Tang also made arrangements for PW2 to see the proposer, seconder and supporters of his membership application.  This was a continuation of the event that PW3 had paid $350,000 to Billy Tang to help PW2 become a member of HKJC.

145.  Another more obvious example was the arrangement for PW2 to meet D1 and D2 at the country club. According to the evidence of PW2 and PW3 they were informed by Billy Tang separately about the meeting.  This must show it was the same Billy Tang who informed the 2 prosecution witnesses about the meeting.  PW2 then had frequent telephone contacts with Billy Tang and they were all related to the membership application.  It is impossible that after one Billy Tang collected the money from PW3 for the purpose of helping PW2 to become a member of HKJC a different person got in contact with PW2 for the same purpose and claimed himself to be Billy Tang.  It is impossible that the Billy Tang in the evidence of PW2 and PW3 were different persons.

146.  According to the evidence of PW2, he had only seen Billy Tang twice and one of the occasions was when Billy Tang was introduced by PW3 to him at PW3’s office.  In the evidence of PW3 there is, however, no mention of such an introduction.  This is not an inconsistency between the evidence of the 2 prosecution witnesses because PW3 says that he does not remember if he had seen Billy Tang on any other occasions apart the 2 in the racecourse and the 3 times when Billy Tang collected money from him.  As the matter happened some time ago it is not surprising that PW3 is not able to remember.  On the contrary, PW2 had only seen Billy Tang twice and on one of the occasions PW3 introduced Billy Tang to him.  PW2 must have a deeper impression of the event in which Billy Tang was introduced to him.  His evidence in this aspect is no doubt credible and reliable.  It follows that the Billy Tang who was subsequently in contact with PW2 for the furtherance of his application to become a member of HKJC must the Billy Tang PW3 knew and introduced to him. 

147.  Judging from the above analysis it is of no doubt that the Billy Tang referred to in the evidence of PW2 and PW3 are the same person and is D8.  It follows that that the person in telephone contact with PW2 was D8. 

Charge 6

148.  According to the evidence of PW3 he paid $350,000 to D8 so that D8 could help PW2 to become a racing member of HKJC.  After payment was made D8 provided PW2 with the application form and made arrangements for PW2 to meet D7, D9 and D10, respectively the proposer, seconder and supporter of PW2’s membership application.

149.  D8 points out in final submission that there is no evidence as to the use of this $350,000.  The court accepts that this is a correct assessment of the evidence.  There are, however, peculiar and unusual features about the payment which were typical of the transaction being an illicit one and which the court should consider.  Although $350,000 was not a small sum of money D8 asked it to be paid in cash.  If the money was for legitimate purposes D8 would no doubt ask for payment by cheque instead of cash.  D8 must know that it was dangerous to carry such a large sum of money around.  It is also common sense that if a large sum of cash was deposited into a bank account the bank would charge handling fee.  It is impossible that D8 was not aware of this.  Payment of the money in cash therefore would not only cause risk to D8’s safety but would also cause troubles and possibly expenses to him.

150.  It is also unusual and unreasonable that D8 did not issue any receipt to PW3 for such a large sum of money.  He only told PW3 to trust him.    Again if the money was for decent purposes D8 would surely issue a receipt to PW3.  This was for his own and PW3’s protection.  This shows that the transaction could not be a legitimate one.

151.  PW3 says in evidence that when D8 told him that the amount to be paid was $350,000 D8 also said that personnel of HKJC had to be approached to sign the application form.  By this, could D8 mean that the money was paid to him as service charge for approaching members of HKJC to sign the application form for PW2 as pointed out in D8’s final submission?  The court is of the view this could not possibly be the case because $350,000 was a lot of money and was totally out of proportion of the work to be done.  The court will come to this issue again later.

152.  Judging from all the evidence and the above analysis the court is of the view that the only reasonable and inevitable inference to be drawn is that the $350,000 was for D8 to pay those members of HKJC whom he approached to act as the proposer, seconder or supporter of PW2’s racing membership application.  That is to say the money was illegal advantage to be paid to members of HKJC as inducement to or reward for or on account of these members proposing, seconding or supporting, as the case might be, the membership application of PW2.  The whole scenario was a plot for D8 to bribe the way for PW2 to become a racing member of HKJC.  No doubt D8 had actually paid the bribes to D7, D9 and D10 or some of them to secure their signatures on the application form.   D8 must know that the money was proceeds of an indictable offence and he dealt with it by receiving it from PW2 and paying them as bribes to certain members of HKJC to help PW2’s membership application.

153.  PW3 says in evidence that he originally thought that the money was admission fee to be paid to HKJC. He also says that he had checked with his friends and Yung who told him that the amount of $350,000 was about right.  Both of these went to the mental state of PW8 and do not affect the conclusion of the court set out above.  The important consideration is that D8 had always intended to use the money as bribes and had actually done so. 

154.  The court now comes back to the question of the money being paid to D8 as service charge.  While the court has ruled out this possibility the court must add that even if this really was the case it would still entail D8 approaching members of HKJC to tell lies in the application form of PW3.  D8 must know that under the rules of HKJC the proposer, seconder and supporter for a membership application must personally know the applicant. The HKJC members D8 approached were invariably strangers to PW2 but such members would have to put down incorrect information in the application form about the length of time they had personally known PW2.  This was a misrepresentation to cheat HKJC.  This would amount to fraud.  The money received by D8 would be for the purpose of perpetrating such a fraud and was proceeds of an indictable offence.  D8 must be aware of this.  He was dealing with it by accepting it.

155.  Having considered all the evidence the court finds that the prosecution had proved beyond a reasonable doubt all the elements of Charge 6 and D8 is convicted of it.

Charges 7 and 8

156.  The 2 sums of $450,000 were actually the $900,000 demanded by D8 and paid in 2 instalments by PW3 to D8 for D8 to assist PW2 to become a full member of HKJC.  The 2 charges can therefore be conveniently dealt with together.  After the 2 sums were paid D8 provided PW2 with the application form for full membership and made arrangements for PW2 to meet D1 and the proposer of PW2’s application for full membership, D2.

157.  The peculiar and unusual features of the payment of $350,000 in Charge 6 also exist in Charges 7 and 8.  The 2 sums of $450,000 were even larger sums of money but they were still paid in cash.  For the second sum PW3 even took all the troubles to cash a cheque of $450,000 at a bank first and then gave the cash to D8 instead simply giving him a cheque, saving the troubles and time of going to the bank and the risks involved in carrying such a large amount of money around.  If the money was for legitimate purposes D8 would no doubt ask for payment by cheque instead of cash.  The risks and danger involved in carrying the money around were even larger because the sum of money was larger and there were 2 sums to be paid at different times, resulting in D8 having to go through them twice.  As pointed out above it is common sense that if a large sum of cash was deposited into a bank account the bank would charge handling fee.  There were 2 sums of $450,000 and the handling fee would no doubt be of a bigger amount.  D8 must be aware of this.  Payment of the 2 sums of $450,000 in cash therefore would not only cause risk to D8’s safety but would also cause troubles and possibly expenses.  Such risk, troubles and expenses were of an even greater magnitude than those in Charge 6.

158.  The court’s analysis and conclusion about the issue of receipts in Charge 6 are also applicable to Charges 7 and 8.

159.  PW3 says in evidence that when D8 told him that the amount to be paid was $900,000 D8 also said that he was not the only person who took from the money.  This clearly shows that money had to be paid to other people after D8 had taken his share.

160.  Judging from all the evidence and the above analysis the court is of the view that the only reasonable and inevitable inference to be drawn is that the $900,000 was for D8, after taking his own share, to pay D2 for acting as the proposer in PW2’s application for full membership.  That is to say the money was for D8, after taking his share, to pay the rest as illegal advantage to D2 as an inducement to or reward for or on account of D2 acting as the proposer of PW2’s full membership application.  The whole scenario was a plot for D8 to bribe the way for PW2 to become a full member of HKJC.  No doubt D8 had actually paid the bribes to D2 to secure his signature on the application form.  D8 must know that the money or part of it was proceeds of an indictable offence and he dealt with it by receiving it from PW3 and paying them as bribes to D2 to help PW2’s full membership application.

161.  After the incident in Charge 3 PW3 began to have the understanding that the 2 sums of $450,000 were to be given to people who signed their names to help PW2 to become full member of HKJC.  This understanding no doubt coincided with the intention of D8.

162.  The analysis and occlusion of the court about the question of the money being paid to D8 as service charge in Charge 6 also apply here.  That is to say while the court has ruled out such a possibility the court must add that even if this really was the case it would still amount to fraud.  The money received by D8 would then be for the purpose of perpetrating such a fraud and was proceeds of an indictable offence.  D8 must be aware of this.  He would be dealing with it by accepting it.

163.  Having considered all the evidence the court finds that the prosecution has proved beyond a reasonable doubt all the elements of Charges 7 and 8 and D8 is convicted of them.