CHOW WAI CHOI AND OTHERS v. HKSAR

FAMC Nos 67 & 69 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 179 OF 2004)

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MISCELLANEOUS PROCEEDINGS NO. 69 OF 2005 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 179 OF 2004)

Between:

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.  These five applicants seek leave to appeal to the Court of Final Appeal against the decision of the Court of Appeal (consisting of Stock and Yeung JJA and Lugar-Mawson J) affirming their convictions at their trial before Pang J and a jury on a count of conspiracy to defraud.  We will refer to the applicants as they were referred to at the trial. 

2.  Briefly described, the conspiracy charged was a conspiracy to defraud the Sin Hua Bank by extracting money from it through a scheme whereby the bank was caused to issue 25 bogus letters of credit (“L/Cs”).  The 1^st accused controlled the Keen Lloyd Group which included both the applicant and beneficiary companies involved in each of the L/C transactions; the 2^nd accused was the group’s accountant and book-keeper; and the 3^rd to 5^th accused were officers of the bank.  It was the prosecution’s case that the proceeds of these bogus L/Cs were applied to reduce the group’s liability, thereby securing release of goods which the bank held under trust receipts upon default on the group’s part.  This caused the bank to relinquish the security which it held, leaving it with an unsecured indebtedness arising under the bogus L/Cs.  The prosecution’s evidence was directed to establishing the falsity of the documents used, the absence of underlying transactions and the participation of each of the accused.  

3.  None of the accused gave or called evidence.  As to the points which defence counsel explored in cross-examination and urged in their final speeches, the Court of Appeal said:

“The main thrust of the defence as put in cross-examination and submission was that the prosecution had not proved its case; that all 25 L/Cs related to genuine transactions; and that the plan was an honest one proposed and agreed to by senior officers of the Bank and [the 1^st accused] on behalf of its major customer for the purposes of keeping the Keen Lloyd Group in business and the attention of [the Hong Kong Monetary Authority] away from the Bank’s exposure to the Group.  Stress was laid upon the fact that the Group’s indebtedness to the Bank was not increased.” 

Pang J simply invited the jury to consider the points urged by defence counsel in their final speeches.  He did not summarise those points.  The Court of Appeal regarded this omission as a material irregularity, and it was only by an application of the proviso that it affirmed these convictions.  The main point put forward by Mr Martin Wilson QC for the 1^st and 2^nd accused in the course of a submission marked by brevity and realism is that the Court of Appeal should not have so applied the proviso.

4.  In situations of this kind the position of a trial judge can be one of very considerable difficulty.  The Court of Appeal handed down its judgment almost three months after the conclusion of the hearing before it.  By contrast, Pang J began his summing-up only three days including the weekend after the conclusion of the final speech of the last counsel to address the jury. 

5.  When introducing the points which it said that the judge should have summarised, the Court of Appeal said:

“It is not our intention to itemise each point made by defence counsel, but rather to provide examples proffered on behalf of each defendant, although it is right to say that these points have been culled and framed by us from lengthy speeches which included other points which did not, in our judgment, call for repetition or summary in the summing up.”

In the interval of almost three months between the conclusion of the hearing before it and the handing down of its judgment, the Court of Appeal would have had considerable time to “cull and frame” those points.  Typically trial judges begin summing up no later than the working day immediately following the day on which final speeches conclude.  The Court of Appeal had a transcript of the final speeches.  Typically trial judges do not have that advantage.

6.  We think that this should be said for future guidance.  After final speeches have concluded and before the summing-up begins, a trial judge is entitled, if he feels that it would assist him in giving the accused a fair trial, to call upon defence counsel to provide him with a list of the points made for the defence in final speech.  Having such a list would put the trial judge in a better position, when inviting the jury to consider everything urged by defence counsel in final speech, to remind them that it consisted of, or included, such and such points.  Calling for a list of defence points will not always be necessary.  It may not even be often necessary.  But there will be cases where it will be in the legitimate interests of all concerned that such a list be called for and provided.  Such cases are best exemplified by - but are not limited to - those in which the accused do not give or call evidence and rely essentially on what their counsel put and/or elicit in cross-examination and urge in final speech.  Whether it will suffice for defence counsel to provide the list orally or whether it ought to be provided in writing is a matter for the trial judge to decide in all the circumstances.  Either way the list should be provided in simple terms shorn of rhetoric.  Above all it must be remembered that the exercise is to be a co-operative one between Bench and Bar in the pursuit of justice.  That is the spirit in which it is to be approached and carried out.

7.  In addition to the ground of appeal based on Pang J’s omission to summarise the points urged by defence counsel in their final speeches, ten grounds of appeal were raised in the Court of Appeal.  They were all rejected by the Court of Appeal. 

8.  It is now contended on the accused’s behalf that a series of questions of law of great and general importance arise.  In our view, none of those questions can be so characterised.  They do not raise any uncertainty or difficulty in the relevant areas of the law, but merely involve fact-sensitive criticisms of Pang J’s summing-up or rulings which he made at the trial.  All of those criticisms were duly considered and justifiably rejected by the Court of Appeal.

9.  The accused also seek to challenge the application of the proviso, doing so on the substantial and grave injustice ground.  But the evidence against them was overwhelming.  The Court of Appeal proceeded within the ambit of accepted norms in applying the proviso.  It should be clearly understood that points properly urged before a jury or even before an intermediate appellate court do not necessarily provide a proper foundation for an appeal to the final appellate court on the substantial and grave injustice ground.

10.  For the foregoing reasons leave to appeal to the Court of Final Appeal is refused.