HKSAR v. CHAN CHIN HUNG ANDERS ANOTHER

CACC 163/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.163 OF 2003

(ON APPEAL FROM DCCC 631 of 2002)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  The applicants (D1 and D2 respectively), who are a married couple, were tried in the District Court before Judge Longley on charges amounting in total to thirteen consisting of seven charges of theft, two of obtaining a pecuniary advantage by deception and four of dealing with the proceeds of an indictable offence.

2.  On 10 April 2003 after a trial of some fifteen days, the judge found both D1 and D2 guilty on the first charge of theft.  In addition, D2 was found guilty on charge 12 of theft and four charges (7, 8, 9 and 13) of dealing with the proceeds of an indictable offence.  D1 and D2 were acquitted on two charges (2 and 6) of obtaining a pecuniary advantage by deception.

3.  The judge returned no verdicts on the remaining five charges of theft (3, 4, 5, 10 and 11) which were treated by him as alternatives to the first charge.  The judge indicated, however, that the prosecution had proved all the elements in charges 3, 4, 10 and 11, saying:

“The prosecution conceded that Charges 3, 4, 5, 10 and 11, since they refer to the same choses in action, can be treated as alternatives to Count 1.  I therefore return no verdicts on those counts.  I would add that if I had not found the prosecution had proved all the elements of Count 1, I would nonetheless have been satisfied that the prosecution had proved all the elements of Charges 3, 4, 10 and 11.”  (Appeal bundle p. 63)

4.  Sentence was imposed on 14 April 2003, when D1 and D2 each received a total of seven years’ imprisonment.

5.  D1 and D2 sought leave to appeal against conviction and sentence.  On 9 November 2004, at the conclusion of the submissions relating to conviction, we dismissed both applications.  So far as sentence is concerned we reserved judgment.  We now give our reasons for dismissing the former applications and we shall give judgment so far as sentence is concerned.

The prosecution’s case

6.  We are grateful to Mr William Tam, on the respondent’s behalf, for producing a comprehensive response to the various matters raised on this application.  We can adopt his submissions in large measure.

7.  In essence, the case for the prosecution was that Erich Stoy (“Stoy”), who regarded D1 and D2 as friends, entrusted them to keep mixed currencies, amounting in value to about HK$11.8 million, on six months’ deposit in their company’s bank account.  His purpose was to earn himself a higher rate of interest than he could in a bank account under his own name whilst, at the same time, avoiding payment of tax on the interest which he would have had to pay in Germany.  However, it was alleged that without Stoy’s consent or authority, on two separate occasions, the applicants “pledged” the majority of the mixed currencies in order to obtain an overdraft facility from their bank to finance the purchase of a property, eventually taking all the funds belonging to Stoy.  Nothing at the time of trial had been repaid to Stoy.

8.  The particulars of the theft in charge 1 alleged that the applicants had, on 26 October 1998, stolen:

“… a chose in action in the form of a debt owed to CHAN’s (Nanhai) Investment Limited by Wing Hang Bank Limited in the amounts of $496,436.12 United States currency, CHF 694,956.92 Swiss Francs and ECU 427,973.11 European currency (held in fixed deposit account numbers 716211-300, 716211-302 and 716211-303 respectively), belonging to Erich Franz STOY.”

9.  Many facts were not in dispute and these provided the general background to the case as a whole. 

10.  D1 and D2 were the directors and shareholders of a Hong Kong company named CHAN’s (Nanhai) Investment Limited (“CIL”).  CIL was the major shareholder of a Mainland company which operated a golf course in Nanhai.

11.  Stoy was an Austrian national and an architect by profession.  In 1997, he was introduced to D1 in Munich by a German friend (Bogner).  Stoy met D1 again, and D2 for the first time, when he travelled with Bogner to Hong Kong and to the Mainland in January 1998.  Stoy and Bogner were invited to invest in the property construction aspect of a golf project, namely the “Phase 1 Housing Project”.  Eventually, the parties came to an agreement on 17 April 1998.  This was embodied in a co-operation agreement (PA5) which, although dated 17 April 1998, was in fact prepared subsequently.

12.  In particular, Clause 2.2 of the agreement provided:

“Mr. Bogner and Mr. Stoy will bring in this project each 1,0 Mio. DEM (i.e. 1 million DM or about HK$4.4 million) latest end of July 1998.”

13.  Clause 3.1 further provided:

“At the end of July 1998 Mr. Bogner and Mr. Stoy will bring in their financial part into the project.”

14.  Essentially, apart from injecting capital into the project, Stoy also agreed to render his architectural expertise towards the venture.

15.  On about 23 July 1998, Stoy paid an initial investment into the housing project in the sum of US$55,500 (or about DM 100,000) and, on about 16 October 1998, he paid a second investment into the project in the sum of DM 300,000.

16.  In a fax dated 6 November 1998 to Stoy (PA42), D1 wrote:

“Concerning your worries, I suggest we build the two houses as planned with our investment (DM300,000 x 3 = DM900,000).  Our Club will invest any amount beyond this figure until completion, i.e. you and Bonnie (i.e. Bogner) do not need to invest any further for the time being, until and unless we receive deposit from our buyers.”

17.  Stoy invested no further capital into the project.  However, at that time, he had other funds in an account with Bank of East Asia (“BEA”) in several currencies.  On 15 October 1998, Stoy instructed his bank to transfer DM 19,852.13, CHF 694,956.92 and ECU 427,973.11, from his account (514-25-03841-1) to the account of CIL held at Wing Hang Bank Limited (“WHB”).  On the next day, he transferred US$496,436.12 from another account (514-30-28186-3) to the CIL account.

18.  These foreign currencies were transferred and deposited into the accounts of CIL at WHB on six months’ fixed deposits.  On 17 October 1998, the Deutschmarks, European currency and US dollars were put into accounts 716211-301, 303 and 300 respectively.  The Swiss currency was transferred to account 716211-302 on 19 October 1998.

19.  On 17 October 1998, Stoy and D1 signed a nominee agreement (P12) in respect of these currencies.  The preamble provided, amongst other things, that:

“Through their friendship and mutual trust, Erich (Stoy) hereby requests the assistance of CIL to become his Nominee for the safe keeping of some mixed currencies in Hong Kong in accordance with the terms and conditions of this Nominee Agreement.”

20.  Clauses 1, 2 and 3 of the nominee agreement provided:

“	1.	Erich hereby appoint(s) CIL to be his Nominee for the safe custody of the following mixed currencies (hereinafter referred to as ‘the Money’) …
	2.	The Money is currently held on trust in CIL’s six months’ fixed deposit account with the Wing Hang Bank Limited, Hong Kong which was opened on 16th October 1998.
	3.	CIL hereby agrees and undertakes that upon written instruction from Erich at any time in the future, CIL shall promptly cause the transfer of the Money to any account or accounts as specified by Erich in the said written instruction.	”

21.  On the same day, Stoy and D1 signed another nominee agreement (PA27) in almost identical terms in respect of some currency bonds belonging to Stoy which were being kept in CIL’s securities account.  They also signed a third nominee agreement (PA28) in relation to the creation of a “Swiss Account”.  The preamble provided:

“	A.	Erich signed two separate Nominee Agreements with (CIL) on October, 1998 concerning CIL’s agreement to keep safe custody of Erich’s fixed currency bonds and mixed currencies.
	…
	C.	Through their friendship and at the request of Erich, Anders (D1) agrees to render his personal assistance to Erich in accordance with the terms and conditions of this Agreement.	”

22.  Clauses 1, 2 and 3 of the nominee agreement provided:

“	1.	At the request of Erich, Anders (D1) hereby agrees to open a Swiss account under Anders’ name with (a bank in Switzerland)…
	2.	Anders agrees and undertakes to authorize Erich and Ms Jacqueline Krezdorn (i.e. Stoy’s girlfriend) … to operate the Swiss Account…
	3.	Against future written instruction from Erich, Anders shall cause the transfer of part or all of the aforementioned mixed currency bonds and/or mixed currencies that he holds on trust for Erich to be transferred to the Swiss Account for disposal by Erich or Ms Jacqueline Krezdorn …	”

23.  On 25 October 1998, D2 signed a provisional agreement to purchase a flat at Old Peak Road (“the Flat”) at the price of HK$16.8 million and paid an initial deposit of HK$1 million.  A further deposit of HK$680,000 was to be paid on 5 November 1998 and the balance of the purchase price, namely HK$15,120,000 was to be paid upon completion on or before 19 December 1998.

24.  What happened to the mixed currency deposits thereafter was also not in dispute.  The bank transactions were set out in the Admitted Facts.  In short, the time eventually came when, without his knowledge or agreement, Stoy’s deposits were withdrawn and utilised by D1 and D2 towards the purchase, of the Flat.  The process began on 26 October 1998, when D1 and D2 “pledged” (or charged) to the bank three of the fixed deposits (namely, those in USD, CHF and ECU) as security to obtain an overdraft facility of HK$8 million for CIL (charge 1 of theft).  Then, on 5 November 1998, using CIL’s overdraft facility, D1 purchased two cashier’s orders in a total sum of HK$1,147,510 to pay for the further deposit and the legal costs arising from the purchase of the Flat.  The overdraft continued to increase and, by 28 December 1998, it had increased to HK$4.65 million.  The completion date on the Flat was subsequently postponed to 8 January 1999.

25.  On 21 December 1998, D1 withdrew part of the US fixed deposit and the whole CHF fixed deposit from CIL’s account (charges 3 and 4 of theft) and transferred them to an account in the joint names of D1 and D2.  A new credit balance was created in that joint account in the amount of HK$5,395,973.  On the same day, D1 and D2 “pledged” (or charged) the remaining US deposit and the ECU deposit as security to obtain a reduced overdraft facility of HK$5 million for CIL (charge 5 of theft).  Drawing on the new credit balance in the joint account, D2 dealt with the proceeds from the mixed deposits by issuing three cheques and paying them into three personal accounts (charges 7, 8 and 9 of dealing with the proceeds of an indictable offence).

26.  On 22 December 1998, HK$50,000 was paid into a joint account at Kincheng Bank; on 28 December 1998, HK$5,100,000 was paid into the WHB joint account; and on 28 December 1998, HK$190,000 was paid into an account in D2’s own name.

27.  On 28 December 1998, the remaining three fixed deposits were withdrawn from CIL’s account by D1 or D2 and transferred to other CIL’s accounts.  D1 transferred US$320,000 (HK$2,478,080 equivalent) and ECU 427,973.11 (HK$3,892,412.55 equivalent) into CIL’s account 716211-001 (charges 10 and 11).  D2 transferred DM 19,852.13 (about HK$87,300 equivalent) into CIL’s account 716211-086.  This German currency deposit was never pledged with WHB and formed the subject-matter of the theft in charge 12.

28.  On 28 December 1998, D2 dealt with the proceeds of the mixed US and ECU currencies withdrawn by D1 by issuing a CIL cheque for the sum of HK$1,000,000 and paid it into the WHB joint account (charge 13).

29.  On 8 January 1999, D1 and D2 signed the assignment to complete the purchase of the Flat.  Part of the purchase price, HK$5,040,000, was paid by way of a cashier’s order obtained by D2.  The funds had originated from the proceeds of the fixed deposits paid into the WHB joint account by D2 on 28 December 1998.  The balance of the purchase price, HK$10,080,000, was paid by WHB pursuant to a mortgage.

30.  On 14 April 1999, Stoy wrote to D1 in these terms:

“You know the maturity date of all the money by Wing Hang Bank is (16 April 1999).  If it’s possible please open an account in Jacqueline’s name by Wing Hang Bank and transfer all the money to this account…”

31.  On 15 April 1999, Stoy wrote a letter to WHB (enclosing copies of the confirmations of deposit for the mixed currencies) and asked for the best interest rate for the next six months, adding:

“Please inform me immediately, because the maturity date is 16 April 1999.”  (Appeal bundle p. 1117)

32.  On 20 April 1999, Stoy wrote a letter to D1, essentially putting certain matters on record:

“On the 7^th April 1999 you told me you cannot sell the houses without any land title… Also you asking me about my money, ECU…DEM…CHF…USD… by the Wing Hang Bank… I told you I will ask my Bank, because this money is the mortgage of my house in Tirol.  After the telephone with my Bank I informed you that I cannot give you the money without any securities… Today (20^th April 1999) you informed me that you have taken my money and you know this is not correct and you cannot do this… You cannot change your problems to me and take my money… Please do anything what you can, to bring back my money on my account on Bank of East Asia… latest on 27^th April 1999. …”  (Appeal bundle pp. 1128-1129)

33.  On the same day, Stoy wrote a letter to WHB:

“Mr. Anders Chan (D1) informed me on 20^th April 1999 that he transferred my above money to another account for investment… You know all the following money ECU…(DM)…CHF…USD… is my money and Mr. Anders Chan has no legitimacy to take my money or transfer it.  You have to know this, because you gave me all the originals – Confirmation of Deposit – and I hold this forms in my hand….”  (Appeal bundle p. 1122)

34.  On 4 May 1999, D1 and Stoy signed a contract in which D1 agreed to repay the mixed currencies to Stoy by 29 July 1999.  The preamble provided:

“	1.	Due to the personal relationship and trust between Erich (Stoy) and Anders (D1) of CIL and the good interest rate offered by Wing Hang Bank…, Erich deposited US$… (ECU)… (DM)… CHF… into CIL’s bank account… with Wing Hang Bank.
	2.	CIL and Anders have invested the above Mixed Currencies in CIL’s golf project in China.  Erich now demands repayment of the said Mixed Currencies in full with the agreed interest for his personal use.”  (Appeal bundle p. 1124)

35.  On 10 May 1999, D1 and Stoy signed another contract in which D1 agreed to return the two sums, namely US$55,500 and DM 300,000 (which Stoy had invested in the housing project), within the following three months.

36.  On 20 August 1999, at the request of Stoy, D1 signed a letter addressed to the German Inland Revenue Department in these terms:

“Due to my very good business relationship with the Wing Hang Bank I time-deposited the multiple currencies in the name of Chan’s (Nanhai) Investment Ltd. for a period of 6 months on behalf of Mr. Erich Stoy, because I was able to obtain better interest rates for Mr. Stoy.  I confirm that Chan’s (Nanhai) Investment Ltd. held the multiple currencies in trust for Mr. Stoy… Due to special circumstances I invested the multiple currencies on behalf of Chan’s (Nanhai) Investment Ltd. without the consent or approval of Mr. Erich Stoy.”  (Appeal bundle p. 1126)

37.  On 8 February 2000, at the request of Stoy, D1 signed a letter addressed to Stoy’s accountant in Germany containing the same admission.

Stoy’s evidence

38.  In summary, the effect of Stoy’s evidence was that he was persuaded by both D1 and D2 to deposit the mixed currencies into CIL’s accounts for the sole purpose of earning higher interest and that CIL was simply holding the deposits for him until instructions were received from him to transfer them elsewhere as evidenced in the written “Nominee agreement” (P12) signed on 17 October 1998.  Much of his evidence was not in dispute.  The prosecution alleged that if this was indeed the arrangement, and both D1 and D2 were aware of it, they must have been dishonest when, without even consulting Stoy and only nine days later, they “pledged” the mixed currencies with their bank to obtain an overdraft facility for their own use (charge 1).  The dishonesty was heightened, it was alleged when they later withdrew the mixed currencies or dealt with such proceeds for their own purposes reflected in the other charges.  By 28 December 1998, all of Stoy’s currencies had been wholly or in part withdrawn without notice to him.

39.  Taking his evidence in slightly more detail, Stoy said that apart from investing in the Phase 1 Housing Project, he had been interested in putting money on deposit in Asia to avoid German taxation and to take advantage of higher interest rates.  Since the beginning of 1998, he had been involved in discussions with both D1 and D2 about this and both were aware of his reasons for transferring money to Hong Kong.

40.  In about the middle of October 1998, Stoy said that D1 and D2 accompanied him to his own bank, BEA.  He had initially intended to keep his mixed currencies on six months’ fixed deposit in his own account with BEA and D1 and D2 went with him in order to help him to negotiate with the bank for a better interest rate.  However, whilst they were at BEA, D1 and D2 informed him that as long-time customers of WHB they could obtain much better rates of interest at their bank.  D2 then telephoned WHB to negotiate, on Stoy’s behalf, the interest rates they were prepared to offer.  She noted those rates on a piece of paper (P3) and explained them to Stoy.  These were the best rates Stoy had received so far.  He was then persuaded by D2 that he would not, as a new account holder, be able to obtain the higher interest rates which were paid to longstanding customers of that bank.

41.  D2 arranged an appointment with WHB.  D1, D2 and Stoy then went to WHB together and met with the bank officers there.  D2 negotiated the interest rates on his behalf and Stoy agreed with D1 and D2 that the mixed currencies be held on six months’ deposits.  Both D1 and D2 were aware that those mixed currencies were monies from a mortgage on his house in Austria.  Having had negotiations carried out on his behalf by D2, Stoy then agreed to make the transfers she had suggested.  As D2 had suggested that higher rates were payable for longer term deposits, he decided to deposit his money for six months.

42.  After a second visit to the bank, on 17 October 1998, D1 and Stoy prepared and signed four “Co-operation agreements”, four “Cancellation agreements” and three “Nominee agreements”.

43.  The four “Co-operation agreements” were documents which were phrased in similar terms and purported to show that certain personal investments of Stoy were investments in the Phase 1 Housing Project.  They were sham agreements and the object behind these documents was that they would be available to show to the German tax authorities if Stoy resumed his residency in Germany within five years.  If Stoy could show that these funds were investments in a project, he could avoid the tax (some 60%) that would otherwise be payable on unearned interest.  The agreements, whilst signed on 17 October 1998, were back-dated so that they appeared to relate to the time the funds had been remitted to Hong Kong.

44.  Four corresponding documents were also prepared, namely the four “Cancellation agreements”, each dated the day after the date appearing on the relevant “Co-operation agreement”.  The “Cancellation agreements” reflected the true position and provided that the “Co-operation agreements” were purely for the personal use of Stoy and that as a result, the parties should have no obligation to execute any of the terms therein.  The scheme was devised by D1.

45.  The three “Nominee agreements” were genuine.  In particular, the “Nominee agreement” regarding the mixed currencies (P12) made it clear that such funds in CIL’s account were being held “on trust” by CIL for him and that upon written instructions from him, CIL would transfer the monies to any account specified by him.  The “Nominee agreement” regarding the currency bonds (PA27) was in similar terms and the “Nominee agreement” regarding the creation of a “Swiss Account” (PA28) was to provide for the future transfer of the mixed currencies and currency bonds back to Stoy.

46.  These agreements were prepared to assist Stoy to avoid German tax on his personal investments in Hong Kong.  As early as their second meeting in 1998, Stoy had taken part with D1 and D2 in discussions about an arrangement to avoid taxation.  Discussions with D1 and D2 were held frequently.

47.  In April 1999, D1 went to Austria and met with Stoy.  During this visit, on 7 April 1999, D1 asked Stoy for the first time to lend him the monies contained in the fixed deposits.  Stoy then began to give excuses to D1 telling him he could not give the monies to D1 without security.  These matters were then “put on record” in Stoy’s letter to D1 dated 20 April 1999.

48.  On 14 April 1999, two days before the mixed currencies were due to mature, still unaware that the mixed currencies had been withdrawn months before, Stoy wrote to D1 instructing him to transfer the mixed currencies to an account in his girl-friend’s name.  On the next day, Stoy wrote to WHB asking for the best interest rates for the mixed currencies for the next six months.

49.  On 20 April 1999, D1 told Stoy for the first time, in the course of a telephone call, that he had “used his money in order to save the project” and that he was “very sorry”.  On the same day, Stoy immediately wrote a letter to D1 accusing him of having “taken” his money and demanded that the money be returned by 27 April 1999.  On the same day, Stoy wrote to WHB informing them that D1 had “no legitimacy” in taking his mixed currencies or transferring them because he still held all the originals of the confirmations of deposit.

50.  Thereafter, a contract, duly signed on 4 May 1999, providing for the repayment of the mixed currencies was drafted by D1’s solicitors.  On 10 May 1999, a further contract was signed providing for the return of the two investment sums to Stoy.  This was drafted by D1 himself.

51.  D1, for his part, signed two letters of “admission”.  These were drafted by Stoy’s friend who had advised him that if D1 confessed in writing that he had stolen the money, he would eventually repay his money.  In August 1999, a draft of the letter was given to D1 who made some very small changes and signed the letter.  In February 2000, D1 signed another letter in similar terms.

Defence case

52.  D1’s version was that notwithstanding the signing of the written “Nominee agreement” (P12), Stoy had verbally agreed that he could use the money in any way he liked but, if he used the money, this was subject to the payment of yearly interest at the rate of eight per cent over the deposit rate offered by the bank and an obligation to repay the principal interest and a dividend upon completion of the housing project.  Subject to this arrangement, D1 said that the funds could be freely deployed.

53.  D2 did not give evidence.  From her record of interview, the cross-examination on her behalf of Stoy and D1 and the closing submissions of her trial counsel, D2’s defence appears to have been that Stoy’s evidence was incapable of belief for various reasons and, if his evidence could not be believed, there was no evidence which satisfactorily implicated her.  Furthermore, D2 had not been involved in the preparation or signing of the “Nominee agreements” (and other agreements) between D1 and Stoy, and she had not been a party to the discussions about Stoy’s plan to avoid the payment of German tax.  It was suggested also that D2 was not aware of the actual arrangements between Stoy and D1 regarding the mixed currencies and that, in any event, her English was not good enough for her to have understood what was being said or agreed between them even if, on occasions, she was near to them when they were talking.

Overview of the trial

54.  The area of dispute, in what was essentially a straightforward case, was a narrow one.  The judge had to decide the nature of the arrangements between Stoy and the applicants and, with particular reference to D2, if she was made aware of them. 

55.  The prosecution called just three witnesses at trial.  Stoy gave evidence for about six days.  PW2 and PW3 were officials from WHB whose evidence lasted a total of about three hours.  The balance of the prosecution’s case consisted of one set of admitted facts, bankers’ affirmations and video recordings of interviews with D1 and D2. 

56.  The defence called no witnesses other than D1.

Grounds of appeal

57.  Mr Blanchflower, SC, on D1’s behalf, submitted with commendable brevity that:

“Ground 1:

The judge erred in convicting the 1^st Applicant of Charge 1 which related to the pledging on 26 October 1998 of the three (3) fixed deposit accounts held in the name of Chan’s (Nanhai) Investment Ltd, for reasons:

Ground 1(1):

The judge erred in finding that the pledging constituted an ‘appropriation’ of property, in accordance with s.2(1) and s.4 of the Theft Ordinance (Cap.210).

Ground 1(2):

The judge erred in finding that on 26 October 1998 the 1^st Applicant was ‘dishonest’, in accordance with s.2(1) and s.3 of the Theft Ordinance.

Ground 1(3):

The judge erred in finding that on 26 October 1998 the 1^st Applicant had ‘an intention of permanently depriving’ Erich Franz Stoy of property, in accordance with s.2(1) and s.7 of the Theft Ordinance.” 

58.  These were Mr Blanchflower’s only grounds and they were echoed in the recently amended grounds submitted by Mr Macrae, SC, on D2’s behalf, where he has added Mr Blanchflower’s grounds to his own at “ground 9”.

59.  It is perhaps unfortunate that the prosecution chose to concentrate its attention on the first charge at all.  By doing so, it turned a simple case into one which was legally complex.  The allegations in charges 3, 4, 5, 10 and 11 all related to thefts of choses in action committed when the funds belonging to Stoy were transferred, without his permission, from WHB.  If we had entertained any doubt about the integrity of the conviction on the first charge, we would have had no hesitation in substituting, under section 83A of the Criminal Procedure Ordinance, Cap. 221, convictions on those other charges (namely 3, 4, 10 and 11) which the judge had found to be proved.

Appropriation

60.  Mr Blanchflower’s fundamental point so far as charge 1 is concerned was that the monies invested at the bank, being an intangible chose in action in the form of a debt owed to CIL by WHB, could not be “pledged” with the bank.  As he was correct to point out, the prosecution had presented its case for saying that there had been an appropriation in charge 1 on the footing that there had been a “pledge” of the fixed deposit accounts in relation to WHB giving the applicants an overdraft facility for $8 million.  The pledge is recorded in the letter dated 26 October 1998 and was signed at the bank by D1 in D2’s presence.  Mr Blanchflower submitted that this pledge could not amount to an appropriation.

61.  The judge, in his Reasons for Verdict, said:

“Charge 1

111.    Charge 1 on the reamended charge sheet is one of theft relating to the pledge of three of the four mixed currencies by the 1^st and 2^nd defendants on 26 October 1998 to secure overdraft facilities of $8 million.  The prosecution must prove that each defendant dishonestly appropriated property belonging to another – i.e. Stoy – with the intention of depriving him of it.  There can be no doubt, based on my finding, that by pledging the three mixed currencies in question, they were dishonestly appropriating property in the form of the choses in action owed to CIL by Wing Hang Bank.”  (Appeal bundle p.61)

62.  We were shown a number of authorities by Mr Blanchflower which indicated that as a thing in action is not a thing in possession and cannot be physically handled or transferred (see: R v Kohn (1979) 69 Cr.App.R. 395 at 404), it cannot be the subject of a “pledge”, which is the bailment of goods or chattels by a debtor to his creditor to be kept by the creditor until the debt has been discharged.

63.  Perhaps more realistically, Mr Macrae was prepared to accept the possibility that choses in action could be pledged but that this must still involve the transfer of physical possession of the deposit certificates which, in this case as it happens, had occurred.

64.  We do not consider that we need to decide this issue which the respondent in fact conceded in the applicants’ favour.  However, Mr Tam went on to contend that a perfectly valid “charge”, by virtue of section 15A of the Law Amendment and Reform Consolidation Ordinance, Cap. 23, had been created over the deposits.  Section 15A provides as follows:

“15A.	Charges and mortgages
	over choses in action

      For the avoidance of doubt, it is hereby declared that a person (‘the first person’) is able to create, and always has been able to create, in favour of another person (‘the second person’) a legal or equitable charge or mortgage over all or any of the first person’s interest in a chose in action enforceable by the first person against the second person, and any charge or mortgage so created shall operate neither to merge the interest thereby created with, nor to extinguish or release, that chose in action.”

65.  The bank document in question is entitled: ‘Letter of Pledge and Set-Off Agreement’ which was signed by D1 on behalf of CIL in the presence of D2 at Wing Hang Bank on 26 October 1998.  Its relevant terms were as follows:

“In consideration of your making or continuing to make advance … or otherwise giving credit or granting banking facilities of any kind whatsoever from time to time … to me/us … I/we the undersigned hereby UNDERTAKE AND AGREE with you as follows:-

1.    I/We shall satisfy and discharge to you on demand all moneys and liabilities whether actual or contingent which are now or at any time hereafter due owing and outstanding by me/us to you …

2.    (A)    I/We by way of continuing security hereby charge all my/our claims, rights, title, estate and interests of and in all the moneys standing to the credit of my/our deposit account(s) and or other account(s) … with you … which are particularised in the Schedule hereinafter … (the abovementioned deposit account(s) … will be hereinafter collectively referred as ‘the deposit’) … as security for the payment of all moneys and liabilities which are now or at any time hereafter may be outstanding owing and payable by me/us to you as aforesaid under Clause 1 hereof and you are authorized without reference to or consents of me/us … to apply the deposit  … as you may think fit in satisfaction of the said liabilities and or moneys …

3.    ... you are authorized without notice or reference to me/us … to debit my/our account or accounts … whether Current, Savings, Time deposit … with the amount of any moneys which is now or hereafter may be due owing or payable to you as aforesaid under Clause 1 hereof.

4.    In addition … you may at any time and without notice to me/us combine or consolidate all or any of my/our or any one of my/our account whether Current, Savings or Time deposit account(s) … and with liabilities to you for the purpose of setting off or transferring any sum or sums standing to the credit of any one or more of such accounts in or towards satisfaction of any of the liabilities of me/us … whether such liabilities be actual or contingent …

5.    … you shall have the absolute right to … demand for repayment of all or any loans advances and or banking facilities to me/us secured by the charge on deposit which are particularized in the Schedule below, at any time hereafter … without prejudice to or invalidate this agreement and the charge on deposit(s) created hereby.”  (Emphasis added)   (Appeal bundle pp. 997-998)

66.  Whilst both counsel appearing for the applicants conceded that a charge had been created, they submitted that because the charge did not “destroy, diminish or transfer the chargor’s rights in, or possession of, the chose in action, there had been no appropriation for the purposes of establishing a theft.  Mr Tam, on the other hand, submitted that the creation of the charge was sufficient in itself to amount to an appropriation.

67.  “Appropriation” is defined by section 4(1) of the Theft Ordinance, Cap. 210 as follows:

“Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.”

68.  There is, as the respondent submitted, nothing expressly stated or implied in this section which requires that the property in question be changed in any way, or diminished or destroyed.  Mr Tam placed emphasis on the definition expressly providing that “appropriation” should include any later “assumption of a right” to the property by “keeping or dealing with it as owner”.

69.  In the same context, we were referred by Mr Blanchflower to what was said by Lord Hoffman in In re Bank of Credit and Commerce [1998] AC 214 at 226:

“An equitable charge is a species of charge, which is a proprietary interest granted by way of security.  Proprietary interests confer rights in rem … A proprietary interest provided by way of security entitles the holder to resort to the property only for the purpose of satisfying some liability due to him (whether from the person providing the security or a third party) and, whatever the form of the transaction, the owner of the property retains an equity of redemption to have the property restored to him when the liability has been discharged… A charge is a security interest created without any transfer of title or possession to the beneficiary.”

A little later (at p. 227), Lord Hoffman went on to say:

“The depositor would retain an equity of redemption and all the rights which that implies.  There would be no merger of interests because the depositor would retain title to the deposit subject only to the bank’s charge.  The creation of the charge would be consensual and not require any formal assignment or vesting of title in the bank.  If all these features can exist despite the fact that the beneficiary of the charge is the debtor, I cannot see why it cannot properly be said that the debtor has a proprietary interest by way of charge over the debt.”

Relying on this authority, counsel for the applicants pointed out that at no stage did the bank, WHB, have to take action which it would have been entitled to do if CIL had defaulted on the overdraft facility it had been given.  It was their contention, therefore, that no appropriation had occurred.

70.  We were more impressed by the arguments advanced by Mr Tam in his lengthy written submission which he adopted that it was Stoy who had the right to use the deposits, including the right to use them as security in order to obtain credit facilities for himself from the bank.  It was that right which D1 and D2 had assumed, he submitted, on 26 October 1998 when they charged three of the deposits with their own bank without notice to Stoy.  That assumption of the right of Stoy’s constituted the “appropriation” for the purpose of the first charge.

71.  It is settled law that in order to constitute an “appropriation”, it is not necessary to demonstrate an assumption on the part of a defendant of all of the owner’s rights.  It is sufficient for the prosecution to show the assumption of any of the rights of the owner (see: R v Morris [1984] AC 320 at p. 331 which was given approval in large measure by the majority in the House of Lords decision in R v Gomez [1993] AC 442).

72.  In R v Gomez (above) Lord Keith, when considering R v Morris (above) where a customer at a self-service store had switched the price label from a cheaper article and put it onto a more expensive item taken by him from the shelves, stated at pp. 459H-460B:

“… it seems to me that the switching of price labels on the article is in itself an assumption of one of the rights of the owner, whether or not it is accompanied by some other act such as removing the article from the shelf and placing it in a basket or trolley.  No one but the owner has the right to remove a price label from an article or to place a price label on it.  If anyone else does so, he does an act, as Lord Roskill puts it, by way of adverse interference with or usurpation of that right… So the label switching in itself constitutes an appropriation…”

73.  In such circumstances, the switching of the price labels had not produced any change in the goods and it had not created any proprietary right or interest in them.  Nevertheless, that act in itself was held sufficient to constitute “appropriation”.

74.  Returning to the present case, D1 and D2 had not merely created a contractual right in favour of the bank.  By creating the charge in favour of the bank, they had granted a proprietary interest in the deposits to the bank.

75.  The respondent, rightly in our opinion, submitted that D1 and D2 had clearly assumed, or taken upon themselves, a right of Stoy’s by charging his deposits with their bank and, by granting in favour of the bank a proprietary interest in the deposits, they had dealt with them as owner and “appropriated” them.  Mr Tam went on to develop his theme that it was unnecessary to show that the property referred to in a charge of theft had to be shown to have diminished or to have been extinguished, as plainly occurred in regard to the later charges on which the judge returned no verdict, for appropriation to be established.

76.  On the other hand, Mr Macrae took us to the judgments in R v Roy Williams [2001] 1 Cr.App.R. 362, HKSAR v Wong Cho-sum [2001] 3 HKC 268 and R v Hilton [1997] 2 Cr.App.R. 445 for the purpose of demonstrating that an appropriation could only occur where a chose in action, or credit balance, was in fact diminished.  However, close scrutiny of those cases shows that on their facts, none of them called for a determination as to whether appropriation could only occur where the credit balance had been reduced.

77.  This argument largely stemmed from what was said in R v Kohn (above) where (at p. 407) Lane LJ (as he then was) said, in relation to theft of a chose in action:

“If the account is in credit, as we have seen, there is an obligation to honour the cheque.  If the account is within the agreed limits of the overdraft facilities, there is an obligation to meet the cheque.  In either case it is an obligation which can only be enforced by action.  For purposes of this case it seems to us that that sufficiently constitutes a debt within the meaning of the word as explained by Lord Reid.  It is a right of property which can properly be described as a thing in action and therefore potentially a subject of theft under the provisions of the 1968 Act.  The cheque is the means by which the theft of this property is achieved.  The completion of the theft does not take place until the transaction has gone through to completion.”

78.  The last sentence in this passage was the main thrust of the applicants’ argument.  However, looking at the facts of R v Kohn (above), that statement was clearly obiter as the cheque transactions in that case had in fact gone through to completion.  Indeed, seven years later, in the subsequent case of R v Navvabi [1986] 3 All ER 102 (at p. 106), having cited the latter part of the same passage, it was Lane LCJ himself who said:

“The last sentence of this passage did not affect the result in R v Kohn and was to that extent obiter.”

We do not propose to make reference to all the authorities to which we have been referred but it is perhaps worth adding that in R v Hilton [1997] 2 Cr.App.R. 445, R v Roy Williams [2001] 1 Cr.App.R. 362 and in HKSAR v Wong Cho-sum [2001] 3 HKC 268, to take but three examples, the facts in none of them called for a determination of whether appropriation could only occur when the credit balance in an account had been reduced to some extent.

79.  Despite the able arguments of counsel for each applicant, academically interesting though they may have been, we found no merit in their submissions.

80.  For the sake of completion, in regard to D2 an argument was advanced that because she had not signed the ‘Letter of Pledge and Set-Off Agreement’ it could not in any event be shown that she had appropriated the deposits.  As to this, there was a wealth of evidence to the contrary and it is not surprising, therefore, to find that at trial there was no dispute.  Indeed, the ‘Admitted Facts’ state that “D1 and D2 pledged the following three fixed deposits with WHB …”.

Intention to deprive permanently

81.  Mr Blanchflower submitted under this ground that the judge had erred in finding that, on 26 October 1998, the applicant intended permanently to deprive Stoy of property, “in accordance with sections 2(1) and 7 of the Theft Ordinance”.

82.  Section 2(1) of the Theft Ordinance provides the basic definition of theft, namely, that “a person commits theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”.  Dealing with the last part of this definition, section 7 provides that:

“(1)    A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating if, but only if, the borrowing or lending of it is for a period and in circumstances making it equivalent to an outright taking or disposal.

(2)    Without prejudice to the generality of subsection (1), where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.”

83.  The effect of the English equivalent to section 7 of the Theft Ordinance (section 6 of the Theft Act, 1968) was considered in R v Fernandez [1996] 1 Cr.App.R. 175.  The English Court of Appeal decided, as a matter of general interpretation, that the section should not be given a restricted interpretation when saying (at p. 188):

“In our view, section 6(1), which is expressed in general terms, is not limited in its application to the illustrations given by Lord Lane C.J. in Lloyd ([1985] 81 Cr.App.R. 182.  Nor, in saying that in most cases it would be unnecessary to refer to the provision, did Lord Lane suggest that it should be so limited.  The critical notion, stated expressly in the first limb and incorporated by reference in the second, is whether a defendant intended ‘to treat the thing as his own to dispose of regardless of the other’s rights’.  The second limb of subsection (1), and also subsection (2), are merely specific illustrations of the application of that notion.  We consider that section 6 may apply to a person in possession or control of another’s property who, dishonestly and for his own purpose, deals with that property in such a manner that he knows he is risking its loss.”

84.  The judge, in the present case, made an express finding that in pledging the mixed currencies, D1 and D2 dealt with them in a manner which involved to their knowledge a risk of loss.  Leading up to this conclusion, the judge said:

“I am satisfied, on the evidence before me, that both the 1^st and the 2^nd defendants were aware that Stoy’s mixed currencies were being held in a six-month mixed currency deposit in CIL’s name purely for Stoy to benefit from the better rate of interest offered to CIL.  I am satisfied that when they applied for an overdraft of $8 million on 26 October 1998, a few days later, they were doing so dishonestly, with a view, partially at least, of financing the downpayment on a flat the 2^nd defendant had agreed to purchase the day before.”  (Appeal bundle p. 60)

The judge thus believed that D1 and D2 intended to use the overdraft facility itself, rather than the deposits, to pay for the downpayment.  Having considered section 7(1) of the Theft Ordinance and the judgment in R v Fernandez (above), the judge concluded:

“I am satisfied, on the evidence, that both defendants would have been aware that in pledging Stoy’s mixed currency deposits, they were risking their loss.  We know that ultimately, the purchase price of $16.8 million for the Old Peak Road flat which the 2^nd defendant had agreed to buy the day before was financed without any, or any significant, contribution from the defendants. The 60 percent mortgage loan in the sum of $10,080,000 was obtained from the Wing Hang Bank.  The balance came substantially from the proceeds of Stoy’s mixed currencies.

Even on 26 October 1998, it would have been apparent to the defendants, both experienced business people who had been involved in the buying and selling of flats previously, that particularly in late 1998 banks were not prepared to take the risk of lending the whole purchase price in case property prices declined.  What they obviously contemplated on 26 October 98 was that Stoy’s funds would be used to finance at least much of the purchase price that a bank would not take the risk of lending.  In other words, they intended to treat the choses in action in Stoy’s funds as their own to dispose of, regardless of Stoy’s rights.  They must have known that Stoy would not be prepared to risk his funds in such a way, or they would have asked him.”  (Appeal bundle pp. 62-63)

After a consideration of D1 and D2’s financial position, the judge continued:

“At the very least, there was an element of risk which would have been known to both defendants when they pledged the three currencies without Stoy’s consent.”  (Appeal bundle p. 63)

85.  The respondent argued that from these passages it was clear that the judge had made an express finding that, on 26 October 1998, D1 and D2 had the present intention to use Stoy’s mixed currencies in the future to finance the purchase of the Flat.  Thus, there was a present intention permanently to deprive Stoy of the mixed currencies by a future act.

86.  Mr Tam, in this context, referred to Professor J.C. Smith’s text in The Law of Theft (8^th ed. 1997) wherein, at para. 2-05, with reference to R v Morris (above), he writes:

“Morris also establishes that it is not necessary to prove an intention permanently to deprive by the act of appropriation; it is sufficient that the appropriator has a present intention to deprive, either by that act or by some future act.  As interpreted by these cases, the definition of theft may now be more fully stated as follows:

Anyone doing anything whatever to property belonging to another, with or without the authority or consent of the owner, appropriates it; and, if he does so dishonestly and with intent, by that act or any subsequent act, permanently to deprive, he commits theft.”

87.  Mr Blanchflower submitted that section 7(1) of the Theft Ordinance had no application to a chose in action.  However, we note that in Chan Man-sin v R (1988) 86 Cr.App.R. 303, the Privy Council applied section 7(1) in a theft case involving a chose in action.

88.  Mr Blanchflower also submitted that the facts of R v Fernandez (above) were materially different from the present case.  However, it is apparent from the passage from that case which we have cited already which the judge relied upon in reaching his conclusions, the English Court of Appeal was speaking in terms of general application, without restricting itself to the particular facts of that case.  In any event, an important basis on which the judge found that D1 and D2 had the intention permanently to deprive Stoy was by their later utilisation of the mixed currencies to pay for the Flat.  It is also clear from the Reasons for Verdict that the judge was well aware, if he was to convict, of the need to find that an intention permanently to deprive existed on the date of the alleged offence, 26 October 1998.

89.  Mr Macrae suggested that as the creation of the charge did not merge, extinguish or release the chose in action and therefore did not “dispose of” the mixed currencies, and as section 7(1) of the Theft Ordinance requires an intention “to treat the thing as his own to dispose of regardless of the other’s rights”, the intention to create the charge in itself could not have involved an intention to dispose of the mixed currencies.  He submitted that it was not sufficient merely to prove that the defendant intended to treat the property as his own “to use”.

90.  However, as we have already said, in R v Fernandez (above), the intention to deal with property in a manner which risks its loss is sufficient to bring section 7(1) of the Theft Ordinance into operation.  In any event, the trial judge had found that both applicants knew that they were risking the loss of the mixed currencies because, as we have also said, they intended to use the currencies to pay for the purchase of the Flat.

91.  Mr Macrae went into considerable detail about D2’s “smaller” role in what had occurred between Stoy and D1, suggesting that in D2’s case there may not have been sufficient evidence to establish her intention.  We need say no more in this regard than to point out that there was a considerable body of general evidence indicative of D2’s continual involvement.  Importantly, it was D2 herself, despite her claim that she spoke little English, who persuaded Stoy not to open an account in his own name at WHB and it was D2 who explained to Stoy that if he had no need to use the monies, he might want to fix the deposits for a longer term to earn a better rate of interest.  There could have been no clearer demonstration that D2 was well aware that the deposits in CIL’s name were to be kept solely for Stoy.

92.  The judge was also alive to the different roles played by D1 and D2 and in his Reasons for Verdict, which are a model of clarity, he went to great lengths to set out the main evidence against D2 which satisfied him as to D2’s intention in having Stoy’s funds kept in CIL’s account.

Dishonesty

93.  The verdict on charge 1 was further criticised by Mr Blanchflower, with support from Mr Macrae, on the ground that the judge had erred in finding that on 26 October 1998 the applicants “were dishonest in accordance with sections 2(1) and (3) of the Theft Ordinance”.  Section 3 of that ordinance defines situations where an appropriation of property is not to be regarded as dishonest, including where a person appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or a third person; or does so “in the belief that he would have had the other’s consent if the other knew of the appropriation and the circumstances of it”.

94.  We can deal very briefly with this allegation.  The judge had stated in a passage we have already cited in full that he was satisfied both applicants were acting dishonestly in “partially at least, …. financing the downpayment on a flat D2 had agreed to purchase the day before”.  It is difficult to envisage a clearer example, on the facts found by the judge, of dishonest conduct.

95.  Other complaints raised by Mr Blanchflower are answered by the judge’s approach to this issue in various passages to be found in the Reasons for Verdict.  The judge spoke, for example, of the applicants knowing that “Stoy would not be prepared to risk his funds in such a way, or they would have asked him”.  The judge found that even by the stage when a repayment agreement was signed on 4 May 1999, D1 was still “lying about what had happened to the money by the declaration in (the agreement) that ‘CIL and Anders (D1) have invested the above mixed currencies in CIL’s golf project in China’”.  The judge described D1 as a “thoroughly deceitful and dishonest witness” and rejected his evidence insofar as it tended to exculpate himself and D2.

96.  As Mr Tam was right to point out, D1 had made the arrangements with Stoy personally, knowing full well that the mixed currencies had come from a mortgage on Stoy’s home.  He and D2 had given a charge over the mixed currencies to the bank only nine days later after Stoy had been promised that they would be kept in “safe custody” for him.

97.  The suggestion made by Mr Macrae that D2 on the evidence, taken as a whole, might have been insufficiently in the picture as to what was happening was neither realistic nor sensible and, in view of the meticulous approach taken by the judge, we need say no more about this ground.   Furthermore, contrary to Mr Macrae’s submission that the case called for a specific Ghosh direction to be given by the judge, we wholly disagree.  The allegations were of the most straightforward kind and no specific direction, in our opinion, was necessary.

D2’s miscellaneous grounds

98.  Much of Mr Macrae’s energies were spent in alleging (in ground 1) that there was insufficient evidence to prove D2 guilty of the charges on which she was convicted.  In particular, it was alleged that there was insufficient evidence to infer that she had knowledge of the real purpose behind the arrangement regarding the deposit of Stoy’s mixed currencies into CIL’s bank accounts.  The principal matters relied upon were, firstly, that D2 had not personally been involved in the preparation or signing of the sham “Nominee agreements” between D1 and Stoy on 17 October 1998.  Secondly, it was suggested that Stoy’s evidence implicating D2, taken at its highest, merely showed D2’s presence at discussions about interest rates and only one attendance at WHB.

99.  This description, with respect, represented a considerable distortion of the evidence against D2 who, from time to time, appears almost to have been the power behind the scenes regardless of whose hand had signed the necessary documents in the perpetration of the alleged offences.  She was, of course, not merely a housewife.  She was, as the judge put it:

“a businesswoman who played a very significant role in the family’s business and personal affairs.  She had her own business, but she was also actively involved in …. the marketing of the golf and housing projects …. She was also a director and shareholder of CIL …. She was the one who almost always signed the company’s cheques.”  (Appeal bundle p. 59)

100.  Stoy had spoken of repeated discussions with D1 and D2 about the assistance they would give him to avoid the payment of German tax on his personal investments in Hong Kong.  These discussions began in early 1998.  According to Stoy, D2, as we have said earlier, was well aware that the sole purpose of the various agreements was to help him to avoid German tax and D2 had asked him about this matter.  Even though D2 was not needed as a signatory to those agreements, she knew that they were to be signed to help him to avoid the payment of tax in his own country.  It was D2 who made enquiries about interest rates with WHB on the telephone on Stoy’s behalf and, when Stoy had suggested that he should open an account in his own name at WHB to earn the higher interest rates on his mixed currencies, it was D2 who had persuaded him not to do so.  D2 made an appointment with WHB and negotiated the interest rates with the bank staff on his behalf.  Thereafter, D2 agreed with Stoy to put his mixed currencies in CIL’s account for six months.  She had assured him that, provided he retained the deposit confirmations, he would remain the owner of the monies.  D2 was frequently in and out of the room when the various agreements were being prepared and was allegedly aware of what was happening.

101.  The judge had an abundance of evidence before him on which to conclude that D2 was a participant with full knowledge of what was taking place despite the fact, which was also noted by the judge, that she was not named in the “repayment agreement” dated 4 May 1999.

102.  The only evidence in the trial which suggested that D2 had been unaware of what was set out in the various documents which formed such an important part of the case against the applicants, came from D1.  However, the judge took the view that D1 “was a thoroughly deceitful and dishonest witness” on whom no reliance could be placed “insofar as it tended to exculpate himself or (D2)”.

103.  We do not need to dwell on a mass of minor complaints made by Mr Macrae.  He drew our attention, for example, to the fact that Stoy’s first statement bore little resemblance to his evidence against D2 in court.  This, we were told and accept, was one of a series of statements and the point carried no weight at all.  Other evidential issues were raised which can effectively be described as “jury points”.  Even taken cumulatively, at this stage of proceedings they amounted to nothing of any substance.  The applicants each had the advantage at trial of highly experienced counsel.  It is apparent from Stoy’s six-day appearance in the witness box that all matters of any importance were gone into with great thoroughness and, furthermore, that the judge fully and fairly evaluated that evidence and the submissions of counsel which followed.

104.  In a further ground (2), Mr Macrae contended that the judge “ought to have looked for supporting evidence of what (Stoy) had said about (D2’s) role and knowledge, given the paucity of …. evidence suggesting her complicity”.

105.  There was no basis for this ground and it was misconceived in the light of the judge’s careful approach to Stoy’s evidence (appeal bundle pp. 47-48) and the absence of any legal requirement for corroboration.

106.  The judge, as Mr Tam who also appeared for the prosecution in the court below rightly pointed out, had been able to observe Stoy giving evidence for six days out of which, apparently, cross-examination had lasted for about five days.  The judge had taken note of all the main issues which lay between Stoy’s evidence on the one hand and the case for the defence on the other.  We do not need to repeat these again at this stage.

107.  Similarly, we do not intend to trawl through the minutiae of the points raised under the next ground of appeal (3) in which it was alleged that speculative assumptions had been reached by the judge when resolving discrepancies between Stoy’s evidence and the testimony of bank staff.  We are not able to agree with Mr Macrae that any of the judge’s conclusions in this regard were speculative.  On the contrary, they were soundly based and redolent of common-sense.

108.  The matters raised in three further grounds (3(v), 4 and 5) amounted either to a misunderstanding on Mr Macrae’s part or to a red-herring of no consequence.  Essentially, these grounds alleged that the judge had been unfair when he had “appeared expressly to accept” submissions made in closing by leading counsel for D2 regarding her standard of English and yet later, in his Reasons for Verdict, had declined to uphold those submissions.

109.  The judge had done nothing of the kind alleged by Mr Macrae and we were astonished that such a point should have been raised.

110.  Stoy’s evidence about D2’s standard of English was that he could speak to D2 “without having any communication problems”.  He went on to say: “… it’s slightly less good than the English spoken by Mr Chan (D1) but I believe it to be on the same level like my own English” (appeal bundle p. 494).  In addition, D1 had given evidence (appeal bundle P. 817) that his wife had migrated to the United States when she was a teenager and had lived there for six to seven years in (an unnamed) “Chinatown”.  However, in her police interview, D2 said: “I do not know English” (appeal bundle p. 184) and, later: “my English is not good as I can’t speak well enough” (appeal bundle p. 188).

111.  With this very general background to the issue related to communications in English between Stoy and D2, the point relied on by Mr Macrae was that when making his closing speech, Senior Counsel then appearing for D2 submitted that D2’s position was no different to the situation in which Mr Bell (who represented D1 in those proceedings) found himself, namely, living for many years in Hong Kong as an expatriate with very little command of Cantonese.  The judge at that point said:

“Well, that’s very diplomatic of you to refer to Mr Bell rather than me.  Yes.  Very well.  Well, I mean I take that point in so far as ….”  (Appeal bundle p. 948)

112.  This remark, not surprisingly, led to some general levity in court and it is, in our view, quite extraordinary that Mr Macrae should have latched onto this light-hearted moment to make what he claimed to be a serious point arising from it.  The judge quite plainly had meant that he had understood the general point being raised that simply because someone with a Chinese background may have lived in the USA for some years it did not follow that that person had necessarily picked up the language.  In no way did he give any indication that he had accepted the correctness of the defence submissions on the issue in question.

113.  Ground 6 was rightly not pursued and ground 7 added nothing of any substance to earlier grounds.

114.  In ground 8, the complaint was that the judge had made an erroneous finding about D2 having lied to the police in her interview (where her answers are shown against the letter ‘C’).  The relevant parts of her interview were as follows:

“104. A.     … according to the Police investigation, in Mid October 1998 --- around or around the 17^th day, well, you went to Wing Hang Bank to make a deposit, regarding 4 amounts of for – foreign currency …. In order to help you recall the events, I am going to show you several sets of document.  Well, please take a look to see if you can recall what had happened at that time?

105. C.     At that time I --- I know nothing about the situation.  It was because when we went out together, we went to the bank.  They went into (the bank) to do their business and I do not know what it was.  Well Er --- nor do I know money was deposited into the account.

106. A.      Who were they that you referred to?

107. C.      Stoy and Mr. Chan.

108. A.      That is you mean that (you all) went to the bank.  Stoy, Mr. Chan and you, but you did not [C:I …] go in?

109. C.      I did not go in.

110. A.      Well, do you know who from the bank served Stoy and Mr. Chan?

111. C.      I do not even know that.  I did not go in nor did I know what they did.  When (they) came out, I then realized that they made a deposit.  I did not know it at that time.

112. A.      That is in respect of the 4 amounts of deposits mentioned above, have you ever --- contacted the bank in respect of the interest rate or other matters [C: No] regarding these deposits?

113. C.      No.

114. A.      Not at all, not even by phone or in person?

115. C.      [Did not answer but shook her head]”  (Appeal bundle pp. 193-195)

115.  On this issue, the judge said:

“I am satisfied that in saying in that interview that she had gone to the bank with Stoy and the 1^st defendant but had not gone in, she was lying to avoid implicating herself in what she knew had happened.”  (Appeal bundle pp. 58-59)

116.  Mr Macrae’s submission was that in fact the evidence appears to show that D2 did not go into the bank with Stoy and D1 (to collect the deposit confirmations) on 17 October 1998 and that it followed, therefore, that D2 had not been lying when she said she did not go into the bank on that day.

117.  In reply, Mr Tam submitted that D2 was interviewed on 4 December 2000, which was more than two years after the event.  D2’s answer had been in reply to questions about her visit to the bank in “mid October 1998” or “around the 17^th day”.  He suggested that it would have been impossible, two years after the event, for D2 to have remembered with any clarity that on 17 October 1998 she had not gone into the bank.

118.  More importantly also, however, Mr Tam went on to submit that, in any event, when D2 had indicated in the interview that she had never contacted the bank in respect of the interest rate or other matters concerning the mixed currencies, either by telephone or in person, she was clearly telling lies.  It not only conflicted with the evidence of Stoy (PW1) and the bank staff (PW2 and PW3), it conflicted also with the case which had been suggested by leading counsel on her behalf to Stoy, namely, that she had indeed made telephone enquiries with the bank.

119.  Importantly also, when the judge gave his Reasons for Verdict, there was in any event no hint that he had wrongly used any lie told by D2 as evidence in itself of guilt.

120.  We do not propose to dwell on ground 10, which complained that there was insufficient evidence to prove that when D2 drew the cheques in the manner particularised in charges 7, 8, 9 and 13, she must have known or had reasonable grounds to believe that the monies represented proceeds of an indictable offence.  Charges 7, 8 and 9 alleged that D2 dealt with property known or believed to represent the proceeds of an indictable offence, contrary to section 25(1) of the Organised and Serious Crimes Ordinance, Cap. 455.  In each case the property related to a “chose in action in the form of a debt” owed to D1 and D2 by WHB.  Charge 13 differed in that the debt was owed to CIL.  The judge provided cogent reasons for finding that D1 and D2 were both aware that Stoy’s mixed currencies were supposed to be held in a six-month mixed currency deposit in CIL’s account for Stoy to benefit from the better rates of interest offered to long-term customers such as CIL.  A few days later, on 26 October 1998, when D1 and D2 applied for the overdraft of $8 million, the judge found that they were doing so dishonestly, with a view, partially at least, to financing the downpayment on the Flat that D2 had agreed to purchase the day before.

121.  Furthermore, as the judge found, D2 had always been involved in making important decisions, both as a businesswoman who played a very significant role in the family’s business and in her personal affairs.  She was aware of the financial position of CIL and both D1 and D2 looked after its finances.  In the family’s personal financial affairs, D2 also played a key role.  Their homes had always been held by her or in her name.  D1 did not even have his own bank account and D2 kept all the chequebooks and passbooks.

122.  Later, the judge noted:

“It follows that (D2) was only able to draw the three cheques which are the subject of Charges 7, 8 and 9 as a result of this huge deposit on 21 December 1998.  It would be fanciful to suggest, bearing (in mind) its magnitude and all the other circumstances, that she did not know the source of the deposit, namely the theft of money from Stoy’s mixed currency deposit held in CIL’s name.

I am satisfied that she was aware that the sums in which she drew the cheques which are the subject of Charges 7, 8 and 9 were sums which represented part of the proceeds of the theft of Stoy’s mixed currency deposit.  I find the 2^nd defendant guilty of Charges 7, 8 and 9.

…. She was only able to draw the cheque for $1 million (the subject of Charge 13) because two days before the date on the cheque – i.e., 28 December 1998 – the 1^st defendant had transferred the proceeds of Stoy’s fixed deposits … into the account …

Again, in all the circumstances, the 2^nd defendant must have been aware that this huge deposit on 28 December 1998 which resulted in her being able to draw a cheque for $1 million dated 30 December 1998 was the proceeds of Stoy’s mixed currency deposits.  She would therefore have been aware that the cheque she was drawing for $1 million represented the proceeds of the mixed currencies stolen from Stoy.  I find the 2^nd defendant guilty of Charge 13.”  (Appeal bundle pp. 65-66)

123.  It is clear from this assessment that the judge had considered all the circumstances relating to charges 7, 8, 9 as well as charge 13 and reached positive findings that D2 had acted with a guilty mind arising from which it is plain that she had “reasonable grounds to believe” the funds were proceeds of the stolen mixed currencies.  A specific direction to that effect would have been otiose for a judge sitting alone.

124.  The last ground (11) raised by Mr Macrae alleged that there was insufficient evidence to convict D2 on the 12^th charge.  This charge alleged that D2, on or about 28 December 1998, had stolen “a chose in action in the form of a debt owed to Chan’s (Nanhai) Investment Limited by Wing Hang Bank Limited (WHB) in the amount of DM 19,852.13 together with accrued interest (held in fixed deposit account number 716211-301), belonging to Erich Franz Stoy”.  The only distinction between this sum and the amounts set out in the first charge was that this was never pledged (or charged) to the bank.  However, it was withdrawn by D2 after its six months’ duration in deposit had elapsed.

125.  Much of Mr Macrae’s argument depended on matters raised under earlier grounds that D2 had no knowledge of the effect of the “Nominee agreement” signed between D1 and Stoy on 17 October 1998.  The judge, however, found, in relation to the 12^th charge:

“Bearing in mind her knowledge of the circumstances of Stoy’s deposit and the other transactions in which she was involved on that day, 28 December 1998 (the subject matter of Charges 5, 8 & 9), to which I have already referred, the only reasonable inference is that the 2^nd defendant was stealing the only remaining fixed deposit owned by Stoy held in the name of CIL.  I find the 2^nd defendant guilty of Charge 12.”  (Appeal bundle pp. 66-67)

126.  D2 did not, as was her perfect right, give evidence herself.  There was, therefore, nothing to rebut the perfectly reasonable, and effectively only sensible, inference drawn by the judge as to her state of mind at the material time.

Conclusion on conviction applications

127.  We are satisfied that the convictions were neither unsafe nor unsatisfactory.  The case against D1 and D2 was overwhelming and no material errors on the judge’s part have been revealed.  These applications were without merit and, accordingly, they are dismissed.

Sentence

128.  In passing sentence, the judge very properly described charge 1 as representing the whole criminality of the case.  It was, as he said:

“… the step taken by both of you to treat Mr Stoy’s foreign currencies as your own and resulted in him ultimately being deprived of approximately HK$11 million, none of which has been recovered by him.” (Appeal bundle pp. 68-69)

The judge continued by saying:

“     Your conduct amounts to a despicable betrayal of trust of a man who had come to regard you as very close friends; as he put it, ‘like family’.  You had met him several months before and had stayed in each other’s homes.  It was obviously apparent to you at an early stage that he was a wealthy man.  As he was an experienced architect, you persuaded him to become project manager and invest in a housing project at the golf course with which you were involved in Nanhai.”  (Appeal bundle pp. 68-69)

129.  The judge went on briefly to review the evidence which amounted to a considerable breach of trust.  As the judge said, initially D1 and D2 had pledged Stoy’s currencies to secure an $8 million overdraft but later they went on to utilise the deposits directly.  The judge distinguished this case from the normal situation where a breach of trust arises on the basis that Stoy was effectively persuaded to put D1 and D2 into a position of trust.  It was more in the nature, he said, of an “abuse of an apparently close friendship”.

130.  The judge, rightly in our view, found no reason to differentiate between the applicants and he commented that this was not a case where the stolen funds were utilised to preserve a company undergoing temporary financial difficulties.  Instead, they were used to purchase a luxury flat in Old Peak Road.

131.  In deciding on a seven-year overall starting point, the judge took into account a number of the more positive features in mitigation, saying:

“… I have been told that you are now prepared to sell the flat in Old Peak Road, and realise what equity remains in it and give it to Mr Stoy.  I hope on this occasion that you are true to your word.

       In deciding the appropriate sentence, I have borne in mind that this was a crime committed against an individual and its repercussions are not likely to extend beyond that individual.  It was not, for instance, a theft from a charitable institution or an institution established for a public purpose.  I also bear in mind that you are mature people, of previous good character and that you have, so I am told, made contributions for charitable purposes in China.  I am mindful too of the fact that a sentence of imprisonment may well affect the employment prospects of a considerable number of people who work for your businesses and that, in the case of you, Chan Chin-hung (D1), it may well result in the loss of your small police pension.”  (Appeal bundle pp. 70-71)

132.  The judge then imposed seven-year sentences on D1 and D2 for the theft covered by the first charge, with concurrent sentences ranging up to six years’ imprisonment on D2 for the remaining charges.  Both Mr Blanchflower and Mr Macrae submitted that a sentence of seven years’ imprisonment was manifestly excessive and, on behalf of D1, it was further argued that the judge had taken into account other charges on which he had not been convicted.  So far as this last aspect of the argument is concerned, we can say immediately that it was artificial in the extreme and gave D1 no assistance whatever.

133.  We have taken a different approach to sentence to that which counsel invited us to take on the matters they put forward.  It seems that they felt unable on the instructions they had been given, to advance what has seemed to us to be glaringly obvious.  It comes to this.  Whilst this was a theft involving $11 million, the risk that Stoy would be unable in due course to recover some or most of his money was never very high.  What counsel felt unable to say because D1 and D2 have, in the face of overwhelming evidence to the contrary, been unable to face up to their dishonesty is that Stoy’s money was taken and utilised by D1 and D2 at a time when real estate prices seemed to be rising.  They hoped to make a quick profit on the flat at Old Peak Road before Stoy insisted on having his money returned to him.  When he did so, the plan was inevitably uncovered.  Even so, D1 and D2 have expressed no hint of remorse from that day to this.

134.  After civil proceedings commenced, a charge was placed on the Flat.  In the result, the Flat, which was bought in 1998 for $16 million, was sold in 2004 for $21 million.  In July 2004, Stoy settled his claim against D1 and D2 for a sum of about $9.3 million.  As to Stoy’s reimbursement of most of his losses, this was plainly a factor to be borne in mind.  It was not, however, to be compared with the voluntary payment of restitution.  It was more akin to thieves being found in possession of the goods they had stolen.

135.  In the light of this development since sentence was imposed and having regard to the approach we consider to be appropriate to the risk of loss, when compared to thefts where the victim is unlikely ever to recover his loss, we consider that the sentences imposed on D1 and D2 have now to be regarded as manifestly excessive.

136.  In all the circumstances, we shall give leave to appeal in each case against sentence.  Treating the hearing as the appeal, we shall allow appeal of D1 by reducing his sentence on charge 1 to five and a half years’ imprisonment.  In D2’s case, we allow her appeal by reducing her sentence on charge 1 to five and a half years’ imprisonment and her six-year sentence on charge 8 will be reduced to four years’ imprisonment to be served concurrently.  We make no alteration to any of the sentences imposed on charges 7, 9, 12 and 13 which will also run concurrently with the sentence on charge 1.

Costs

137.  As we indicated to counsel at the conclusion of the hearing on 9 November 2004, we had in mind an order for costs in favour of the respondent pursuant to section 13 of the Costs in Criminal Cases Ordinance, Cap. 492, limited to the costs in the applications relating to conviction which formed the vast majority of the preparation and presentation of the case.  The respondent’s application was resisted by counsel on behalf of D1 and D2.  A suggestion was put forward that they were in some financial difficulty and, when instructions were taken from D1 and D2 in court, counsel, we emphasise on the instructions they were then and there given, indicated that there were a number of outstanding civil actions.  Later, we were supplied, as requested, with the case numbers of these actions.  These were: (1) HCA 3041/2003, but this related to the settlement of Stoy’s claims of which we were already aware; (2) HCA 6839/2000, but this was an action which, according to the file, was “discontinued”; (3) DCCJ 16052/2000, but this action, according to the file, has been settled in the sum of $140,000.

138.  We are, in any event, satisfied that D1 and D2 are well able to pay the costs of their unmeritorious applications and we see no reason why the taxpayer should have to shoulder any part of the burden.  Accordingly, we shall make an order that D1 shall pay half of the respondent’s costs of the applications relating to conviction and that D2 shall pay the remaining half, in each case to be taxed if not agreed.