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CAAR 3/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
APPLICATION FOR REVIEW NO. 3 OF 2014
(On Appeal From District Court Criminal Case No. 216 of 2013)
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BETWEEN
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SECRETARY FOR JUSTICE
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Applicant
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and |
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IP HON MING (葉漢明) |
1st Respondent
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YEONG YUN HONG GARY (楊潤康) |
2nd Respondent
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| Before : Before : Hon Lunn VP, McWalters JA and D. Pang J in Court |
| Date of Hearing : 7 and 10 November 2014 |
| Date of Judgment : 25 November 2014 |
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J U D G M E N T
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Hon Lunn VP (giving the Judgment of the court) :
1. Having been granted leave by the Chief Judge of the High Court on 16 May 2014, the Secretary for Justice applies, pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, for a review of the sentences imposed upon the 1st and 2nd respondents by District Court Judge Woodcock on 24 April 2014, following their conviction after trial on 22 April 2014 of multiple charges of champerty, contrary to Common Law and punishable under section 101 I of the Criminal Procedure Ordinance, Cap. 221. The respondents were convicted jointly of 25 offences and, in addition, the 1st respondent was convicted of one other offence. Each charge concerned a different complainant in a personal injuries civil action. The 2nd respondent’s wife, the 3rd defendant at trial, was acquitted of the 25 charges of champerty that she faced jointly with the respondents. The judge sentenced the 1st and 2nd respondents to 12 months’ and 15 months’ imprisonment respectively, ordering that those sentences be suspended for 18 and 24 months respectively. It is submitted on behalf of the applicant that those sentences are manifestly inadequate and/or wrong in principle.
2. At the outset of the hearing we refused an application by the applicant, pursuant to section 83 V of the Criminal Procedure Ordinance, Cap. 221 advanced by a Notice of Motion filed with the court on 5 November 2014 to receive as evidence a circular of the Law Society of Hong Kong dated 18 November 2002. The circular expressed “serious reservations” about solicitors accepting instructions from “claims companies soliciting work from victims of personal injury cases”. Amongst those reservations was the concern that :
“ there is a grave danger that the arrangement may impair
(i) the solicitor’s independence;
(ii) the victim’s freedom to instruct a solicitor of his choice; and
(iii) the solicitor’s duty to act in the best interests of his client in breach of rule 2(a), (b) and (c) of the Solicitors’ Practice Rules.”
3. Mr David Leung, for the applicant, explained that he sought to adduce that evidence to give proper context to the Law Society’s circular dated 17 May 2005 put before the court in the course of mitigation on behalf of the 2nd respondent. He submitted that both circulars were relevant to the issue of the respondents’ knowledge of the illegality of their conduct, in particular that of the 2nd respondent. It was asserted in an affirmation by an ICAC officer that the ICAC officers investigating the conduct of the respondents had no knowledge of either circular before and during the trial and came to know the existence of the 17 May 2005 circular only when it was presented in court in mitigation.
4. In that context, it is to be noted that the court received mitigation on behalf of the respondents on Tuesday, 22 April 2014, but did not pass sentence until the afternoon of Thursday, 24 April 2014. No explanation was advanced as to why a search for other circulars of the Law Society relevant to the issue was not made in the interim when the relevance of circulars issued by the Law Society became obvious. It is clear from the transcript of the exchange between the judge and counsel for the 2nd respondent during mitigation that the judge made it obvious that she attached considerable significance to what was asserted in mitigation, namely that “they stopped doing this because of this circular”.[1] Of that, she said to counsel, “that’s good mitigation”.[2] Indeed, it is a matter of considerable surprise that those investigating and those seized of the prosecution had not made enquiries of the Law Society in respect of the matter in advance of the trial.
5. In the result, we were not satisfied that “there is a reasonable explanation for the failure to adduce it” in the proceedings in the lower court, as we are required to be by section 83 V (2)(b) of the Criminal Procedure Ordinance if we were to admit the evidence. Accordingly, we declined to receive the evidence.
6. The Particulars of the Offence of Charge 1 serve to illustrate the ambit of all the charges, namely that the respondents between stipulated dates :[3]
“ ..unlawfully made a champertous bargain with Fung Ying Leung to unlawfully maintain a civil action in the Hong Kong Special Administrative Region involving the said Fung Ying Leung as Plaintiff and Wai Hong Cleaning & Pest Control Company Limited and Poon Wai Keung as Defendants.”
7. The overall period encompassed by the stipulated dates in the charges was the period from 1 November 2001 (Charge 1) until 27 April 2007 (Charge 12).
8. In her Reasons for Sentence, the judge summarised her factual findings relevant to the scheme operated by the two respondents :[4]
“ In short, this case involves the 1st defendant setting up a limited company, a business, in 2000 as a recovery agent.[5] He advertised his services as handling claims for victims of accidents. His fee was 20 per cent of any successful compensation claimed. He printed brochures and name cards suggesting he believed he was engaging in a legitimate business. There were in early 2000 open advertisements in newspapers of other companies involved in this same business.
All 26 claimants in this case engaged the 1st defendant’s services and agreed to pay 20 per cent of any successful claim as his fee. They understood if there was no compensation obtained, they would pay no fees. Where claimants were concerned, if there was no win, there was no loss for them.
The claimants were then taken to Yeong & Co.[6] There, they engaged Yeong & Co’s services to commence an action on their behalf. The claimants assumed those services were covered by their agreement with the 1st defendant, the recovery agent.
The 2nd defendant was in charge of their actions. Ultimately, an award was agreed in each case. From that the 1st defendant had 20 per cent paid to him. The claimants received 80 per cent. Yeong & Co negotiated and received costs from the opposition of each claim or action. The cases were settled. Many included a costs order, where costs were to be taxed if not agreed. No costs went to taxation………………
There was no evidence Yeong & Co had any share of the 20 per cent deducted. As I found, they negotiated costs without consulting the claimants because it was meant for them only and had nothing to do with the claimants. The claimants were not liable to Yeong & Co for any costs. Yeong & Co financially benefited from this arrangement; this arrangement to facilitate the 1st defendant’s agreement with the claimants.
I found Yeong & Co, 2nd defendant worked with the 1st defendant to execute and see the agreement to fruition.”
9. Before being introduced to Yeong & Co, at the behest of the 1st respondent on behalf of QPCL, each claimant signed four types of documents :
(a) An ‘Authorization for claiming Accident Injury Compensation Application Form’[7] on the letterhead of QPCL, whose terms included stipulations that the claimant :
· agreed to pay 20% of the compensation amount upon receipt as fee for making the claim.
· was not required to pay any application fee or handling charge during the claim process for injury and death compensation.
(b) An ‘Accident Claim Service Agreement’ [8] on the letterhead of QPCL. Clauses 3 and 4 made the claimant liable for fees for medical reports and information collection charges but, other than that, the claimant was not required to pay any other fees during the claim proceedings. Clause 5 stipulated that the claimant would pay QPCL :
“ upon successfully pursued damages (no matter by out-of-court settlement or judge verdict) 20% of the total compensation (such total compensation includes the claim sum plus all monies, subventions and recompenses for injuries and death caused by industrial accidents received by… (the claimant) before the claim proceedings commences) as service charge.”
Also, the clause provided for agreement that the lawyer representing the claimant pay directly to QPCL the part of the damages represented by the 20% service charge. Clauses 7 and 8 provided for monetary penalties if the claimant withdrew the action or arranged for other lawyers to take over from those introduced by QPCL.
(c) Two documents entitled ‘Letter of Authorisation’,[9] one of which authorised Yeong & Co to receive on behalf of the claimant all money recovered as a result of a claim and the other which authorised them to pay 20% of the monies so recovered to QPCL directly. That payment was described as a consultancy fee.
Yeong & Co’s retainer
10. There was no dispute, albeit that some of the documents could no longer be found, that each of the claimants had been asked to and had signed a retainer[10] by Yeong & Co, which asserted that they had been advised of their right, which they declined, to apply for legal aid to pursue their claim. Then, the document stipulated :
“ Since you have instructed our firm to represent you in handling the above-caption claim, you are required to pay legal fees to our firm which will be calculated on a rate of HK $3,500.00 per hour, plus disbursements (such as photocopying, transportation fees, counsel fees, medical specialist reports and expert reports etc). If your claim is successful or that (sic) is settled out of court, normally, the court would order the Defendant/the party that the claim is against to pay all or part of one side’s legal fees and disbursements, in these circumstances, you are still liable to pay our firm’s legal fees and disbursements at the end of the case but our firm will represent you to seek all part of the legal fees and disbursements from the defendant/the party that the claim is against.
However, should your case fail or you withdraw midway causing you to not receive your compensation, you must pay our firm's and the defendants/the opposing parties legal fees and disbursements.”
Reasons for Sentence
11. Of the dates of the commission of the offences, the judge noted that :
“ ..the charges start at the earliest in November 2001 and at the latest October 2004. After this date, there are no other champertous agreements entered into.”
12. In that context, the judge referred to the circular dated 17 May 2005 issued by the Law Society to which she had been referred in mitigation in answer to her enquiry[11] as to why the impugned conduct of the respondents did not continue.[12] She noted that the Law Society expressed its concerns about the activities of ‘recovery agents’ and said that all the features of recovery agency contracts identified in the circular were “found in the 1st defendant’s agreements with the claimants.”[13] The circular stated that leading counsel advised that such contracts were not only champertous and unenforceable but also that “maintenance (of which champerty is a more serious form) remains a criminal offence in Hong Kong and that recovery agents are liable to be prosecuted”. The judge went on to note :
“ This circular went on to set out under what circumstances solicitors would commit professional misconduct if they acted in claims financed by recovery agents. It refers to the misconduct and possible breaches of rules of the solicitors’ practice rules and breaches of principles of the Hong Kong Solicitors’ Guide to Professional Conduct.”
13. Having quoted directly from the circular at some length, the judge explained that she had done so :[14]
“ ..because I am of the view that it is good mitigation that once the circular spelt out the consequences of acting in claims financed by recovery agents, the 2nd defendant stopped and ceased to take on cases on this basis.” [Italics added.]
14. Having regard to the fact that the Law Society had sought leading counsel’s advice and issued a circular addressing the issue, the judge said that :[15]
“ highlights how this offence was unknown to many or, at least, confusing to many. It is an offence that is or was rarely seen, prosecuted or even considered.”
15. Of those circumstances, the judge said :[16]
“ It may very well be that the 2nd defendant believed that by only taking the costs agreed and not a percentage or a portion of the award received, he was not acting improperly or indeed illegally. If that was what he thought, he was mistaken, but it would explain why he worked together with the 1st defendant in this manner.”
16. The judge noted that similar submissions had been made in mitigation on behalf of the 1st respondent, in particular that such businesses had been advertised openly in the early 2000s.[17]
Factors relevant to sentence
17. In her determination of the appropriate sentence to be imposed on the respondents the judge adumbrated various factors. She acknowledged that both respondents had “clear records”.[18] In respect of the 2nd respondent, the judge acknowledged the evidence that she had received in support of submissions as to his good character, in consequence of which she found :[19]
“ .. clearly the 2nd defendant is a man who is civic-minded, humble and of charitable character.”
18. The judge said that she considered as “strong mitigation” the fact that the respondents had ceased to conduct themselves in the way that had brought about the prosecution following the issue of the Law Society circular.[20] Having noted that there was no guideline for sentencing for the offence of champerty,[21] the judge said that the offence was rarely prosecuted and that she had regard to the “age of the offences”.[22]
19. Of the conduct of the respondents, the judge determined :[23]
“ I accept there is no evidence of cheating, deceit, fraud or any misrepresentations to claimants from either defendant.”
The judge went on to say that finding “distinguishes this case from HKSAR v Mui Kwok Keung” [24], in which she acknowledged that this Court had approved of a “custodial sentence of some length” for offences of champerty.[25]
Suspended sentence of imprisonment
20. In addressing the submissions made on behalf of the respondents that, if the court determined that it was necessary to impose sentences of imprisonment, the sentences be suspended, the judge said that in respect of the 2nd respondent she had regard to the inevitable disciplinary action which he would face from the Law Society. Further, she said that she took into account the way in which the defence had been conducted at trial, in particular that “the defence hung their hat on legal submissions and arguments to defend the charges.” [26] In the result, the judge said : [27]
“ After having considered all I have just referred to above, specifically the facts particular to this case, the ancient nature of this offence, the age of these charges and when and why this scheme ceased, I am of the view that, although a term of imprisonment would be appropriate, I will suspend it. I am sure there is no likelihood of either defendant re-offending.”
Starting point
21. Then, the judge stated that she adopted a global approach to the starting point to be taken for sentence. In the event, the judge stipulated a starting point for sentence of 12 months’ imprisonment for the 1st respondent and 15 months’ imprisonment for the 2nd respondent.
The applicant’s submissions
22. The applicant submitted that the sentences imposed on the respondents were manifestly inadequate and/or wrong in principle. It was contended that, in light of the serious nature of the multiple offences, a lengthy immediate term of imprisonment should have been imposed on each of the respondents.
23. First, it was submitted that the judge failed to have sufficient regard to the fact that the appellate courts have described champerty as a serious offence.
24. Secondly, it was contended that the sentences failed to reflect sufficiently the gravity of the offences as evidenced by the particular circumstances of their commission, namely that :
(a) 25 different claimants were involved in the 25 charges that the respondents faced jointly, the 26th charge which the 1st respondent faced alone concerned yet another different claimant;
(b) the claims were pursued over a period of more than 5 years, beginning in November 2001 (Charge 1) when the 1st of the claimants entered into agreements with the respondents and ending in April 2007 (Charge 12) when a payment of damages was received from a defendant and separate payments made to the claimant on the one hand and to the 1st respondent on the other hand, the latter payment being 25% of the damages received;
(c) the total monetary payments made to the 1st respondent and Yeong & Co in consequence of the champertous agreements :
The total amount of payments
(i) the total amount of payments of damages received from the defendants in the civil actions reflected in the charges of which the 1st and 2nd respondents were convicted was $7,394,164 and $7,314,134 respectively;
(ii) the total amount of payments to the 1st respondent from Yeong & Co reflecting his share of the payments of damages made by the defendants in the civil actions was $1,432,826 (Charges 1-25); the 1st respondent received a payment of $16,000 directly from the family of the claimant in Charge 1;
(iii) the total amount of payments of costs received by Yeong & Co from the defendants in the civil actions reflected in the charges of which the 1st and 2nd respondents were convicted jointly was $3,867,883;
Payments prior to 17 May 2005: the issue of the Law Society circular
(iv) the total amount of payments of damages received by Yeong & Co from the defendants in the civil actions, reflected in the charges on which the 1st and 2nd respondents were convicted jointly, prior to 17 May 2005 was $3,273,134 (Charges 2, 3, 4, 8, 9, 14 and 23);
(v) the total amount of payments to the 1st respondent from Yeong & Co., reflecting his share of the payments of damages made by the defendants in the civil actions, prior to 17 May 2005 was $624,626;
(vi) the total amount of payments of costs received by Yeong & Co from the defendants in the civil actions prior to 17 May 2005 was $1,444,840;
Payments post -17 May 2005
(vii) the total amount of payments of damages received by Yeong & Co from the defendants in the civil actions, reflected in the charges on which the 1st and 2nd respondents were convicted jointly, post-17 May 2005 was $4,041,000 (Charges 1, 5-7, 10-13, 15-22, 24 and 25);
(viii) the total amount of payments to the 1st respondent from Yeong & Co., reflecting his share of the payments of damages made by the defendants in the civil actions, reflected in the charges on which the 1st and 2nd defendants on those were convicted jointly, post-17 May 2005 was $808,200 (Charges 1, 5-7, 10-13, 15-22, 24 and 25);
(ix) the total amount of payments to Yeong & Co of costs made by the defendants in the civil actions, reflected in the charges of which the 1st and 2nd respondents were convicted jointly, post-17 May 2005 was $2,423,042 (Charges 1, 5-7, 10-13, 15-22, 24 and 25).
(d) the claimants were manipulated by the respondents who preyed on their trust and ignorance of the legal system :
(i) the claimants not only did not make an informed choice or decision when engaging the services of the respondents, they would also be penalized for exercising their right to choose or change legal representation;
(ii) not all of the claimants were consulted on the agreed monetary value of damages before the cases were settled; and
(iii) the 2nd respondent negotiated, agreed and received payments totaling HK$3.9 million, representing the costs of the various actions from the perspective defendants without informing or consulting the claimants.
(e) the 2nd respondent was involved in a deliberate attempt to conceal or disguise the true nature of the champertous scheme, in particular that the judge found that he had created a façade to distance the Yeong & Co from the 1st respondent by creating “sham” retainer agreements with the claimants. The judge found that the retainers were to be used, if necessary, to deceive a third party, the courts or a governing body such as the Law Society. It was an irresistible inference to be drawn from that conduct of the 2nd respondent that he knew, even before the publication of the 2005 circular, that the conduct or practice involved was illegal;
(f) notwithstanding the publication of the Law Society circular on 17 May 2005, the 2nd respondent caused Yeong & Co to continue to act in furtherance of the champertous agreements by making payments pursuant to that agreement to the 1st respondent to a total amount of $816,200 on no less than 18 occasions in the second half of 2005, 2006 and early 2007. Further, the 2nd respondent continued to negotiate, agree and receive payments of costs of the actions to a total amount of $2,423,042;
(g) given the judge’s findings that the retainer agreement made between the various claimants and Yeong & Co was “window dressing”, “a fiction” and “a sham” [28] and that they were “not meant to be enforced or apply to the claimants brought to Y & Co by D1” [29] the claimants were under no liability to Yeong & Co arising from those agreements, so that the claims for and receipt of costs by Yeong & Co at the behest of the 2nd respondent from the defendants in the civil actions was fraudulent and dishonest.
25. Thirdly, it was submitted that the judge failed to recognise that the test which the courts apply in deciding whether or not to suspend a sentence is one of “exceptional circumstances” :[30]
(a) in determining to suspend the sentences of imprisonment imposed on the respondents the judge did not specify or otherwise identify such exceptional circumstances;
(b) there were no such exceptional circumstances;
(c) the judge’s reliance on a determination that the respondents’ champertous scheme had ceased upon the application of the Law Society circular on 17 May 2005, which she determined to be “strong mitigation” was an erroneous finding of fact.
26. Fourthly, it was submitted that the judge failed to impose sentences which were sufficiently denunciatory of the respondents’ conduct and which would deter others and protect the public.
27. In consequence it was contended that the judge imposed sentences upon the respondents which were unduly lenient and which, “fell outside the range of sentences which the judge, applying [her] mind to all the relevant factors, could reasonably consider appropriate”. [31]
The respondents’ submissions
1st respondent
28. On behalf of the 1st respondent Mr Egan invited the court to accept that there was no evidence that the 1st respondent had practised any deceit or fraud in his pursuit of the champertous agreements. Whilst he accepted that the 1st respondent must have known that the 2nd respondent would be remunerated for his role in pursuing and advancing the champertous agreements, he submitted that there was no evidence that he knew of the “sham” retainers made between the claimants and Yeong & Co.
29. Whilst no issue was taken on behalf of the 1st respondent of the judge’s finding that he worked to implement the champertous agreements, in consequence of which he was guilty of the offences, it was submitted that there was no evidence that he knew of the illegality of that conduct. That submission had been made to the judge in mitigation, so that the judge noted in her Reasons for Sentence that it had been submitted that “He did not act knowingly dishonest…. He thought it was a genuine business venture, going so far as printing brochures and name cards”. [32]
30. On behalf of the 1st respondent Mr Egan submitted that the factual findings of the judge in the instant case were distinguishable, as the judge determined them to be, from the facts obtaining in HKSAR v Mui Kwok Keung. Similarly, they were distinguishable from the facts obtaining in HKSAR v Winnie Lo [33]. In any event, he contended that the observations of this Court in those cases were directed at legal practitioners not a non-lawyer such as the 1st respondent.
31. Next, Mr Egan invited the court to note that section 109 B of the Criminal Procedure Ordinance, which empowers the Court to suspend a sentence of imprisonment of less than two years, contains no restriction that the power is to be used only in “exceptional circumstances”. Accordingly, he submitted that the judicial importation of such a restriction was “an unnecessary ‘gloss’ on the clear words” of the Ordinance. Care had to be taken in having regard to the decisions of the courts of England and Wales, given that there the legislation had been amended in 1991 to require of the court that it be of the opinion that “exceptional circumstances” justified the imposition of a suspended sentence of imprisonment.
32. Then, it was submitted that in any event it was clear that the judge had approached the determination to impose a suspended sentence of imprisonment with caution. Further, that in doing so she had acknowledged the 1st respondent’s “very positive background”. In the result, Mr Egan contended that the sentence of 12 months’ imprisonment suspended for two years imposed on the 1st respondent was not wrong in principle or manifestly inadequate.
The 2nd respondent
33. On behalf of the 2nd respondent, Mr Cheng Huan SC submitted that the judge was correct in distinguishing the facts of the instant case from that obtaining in HKSAR v Mui Kwok Keung. The court was reminded that District Court Judge Woodcock was the judge presiding in that case as well. Further, he invited this Court to note that in that case this Court expressed agreement with the judge’s finding that it was “difficult to imagine a worse case of champerty by a member of the Bar.”[34] There, the applicant had dealt with all five claimants independently of any solicitor. As this Court noted, the judge had found that those witnesses “had been manipulated by the applicant, who preyed on their trust, their ignorance of the legal system and, to varying degrees, their vulnerabilities…” [35] The applicant had lent money to three of the claimants, which loans were repaid from the damages they received, and had even opened a joint bank account with one of those claimants. Furthermore, the applicant had received a 25% share of the damages recovered in three actions, to a total of about $750,000 and a 62% share of the damages in a fourth action, to a total of $884,750. In addition to the payments to the applicant of his share of the damages, the applicant had received payments of $175,000 and $9,000 out of costs paid to his solicitors by the solicitors of the defendants in two actions in settlement of his fee notes. The judge sentenced the applicant to 2 years’ imprisonment on each of the Charges 1 to 4 and 2 years and 10 months’ imprisonment on Charge 5, ordering that two months of the sentence of imprisonment imposed in respect of Charges 1 to 4 be served consecutively to the sentence of imprisonment imposed on Charge 5. Accordingly, the total sentence was 3½ years’ imprisonment. This Court said that it would not have interfered with an “overall sentence of five years imprisonment.” [36]
34. By contrast, this Court was invited to note that the judge had accepted that there was no evidence that the 2nd respondent had received any share of the agreed damages received by the 1st respondent.[37] Furthermore, this Court was reminded that the judge had determined that there was “no evidence of cheating, deceit, fraud or any misrepresentations to claimants from either defendant”.[38] On the other hand, it was acknowledged that the judge had found that the 2nd respondent had “financially benefited” from the champertous scheme to the extent that Yeong & Co received payments of costs paid by the solicitors of the defendants in the action, which payments the 2nd respondent had negotiated and agreed without consulting the claimants.[39] However, of that conduct it was submitted that was understandable because such payments were for the benefit of Yeong & Co only and not the claimants. Further it was suggested that there was no evidence that the negotiated sums in respect of costs were other than entirely appropriate.
35. It was submitted that the judge’s comments as to the date, namely “at the latest October 2004”, after which there were “no other champertous agreements entered into” was accurate.[40] Similarly, it was contended that the judge was correct to find in respect of the publication of the Law Society circular of 17 May 2005, “as a result of its contents and warning to solicitors, the 2nd defendant ceased to take up cases from the 1st defendant or anyone on this basis”.
36. Of the fact that the 2nd respondent continued to deal with and process the existing actions after the publication of the circular on 17 May 2005, it was submitted that the 2nd respondent was bound by his retainer to do so. To do otherwise would have disadvantaged the claimants in the pursuit of their claims.
37. It was submitted that the applicant’s contention that the 2nd respondent’s conduct was both dishonest and fraudulent was contrary to the judge’s finding that there was “no evidence of cheating, deceit, fraud or any misrepresentation to claimants from either defendant”.
Suspended sentence
38. Mr Cheng Huan submitted that, although the judge had not stipulated them to be “exceptional circumstances” nevertheless the factors that the judge had found relevant to the determination of the appropriate sentence to impose on the 2nd respondent, when considered together were such as to justify the suspension of the term of imprisonment imposed on the 2nd respondent.
A consideration of the submissions
39. The appropriate sequence in which matters are to be approached in determining whether or not to impose a suspended sentence has been long established.[41] First, the judge should have regard to the gravity of the offence and the mitigating factors in determining the length of sentence: “It was only after completing the process that he should have considered the question of suspension: see D.A. Thomas on the Principles of Sentencing, 2nd edition at pp. 241 and 244, Archbold, 42nd edition, page 574 paragraphs 5.51; R v Trowbridge [1975] Cr L.R. 295.” [42]
40. The judge fell into error in the approach that she took to determining that issue. She approached the matter in the wrong sequence, addressing and determining the issue of whether or not to suspend a term of imprisonment before she addressed and determined the appropriate sentence of imprisonment.[43]
The gravity of the offence and mitigating factors
41. At an early stage of her Reasons for Sentence, the judge stated that she did not intend repeating her findings in detail, they were to be found in her verdict.[44] No doubt, that goes some way to explain why it is that the Reasons for Sentence are primarily concerned with issues of mitigation.
42. In the course of her Reasons for Verdict, the judge dealt at length with her findings in respect of the conduct of the 1st and 2nd respondent and, in particular the palpable conflict between the documents each created and caused the claimants to sign. Of that conflict, she said :[45]
“ D1’s fee and terms were on the basis of no win no loss; 20% of a successful claim cover all fees and charges from start to finish and this fee was only recoverable if there was a successful claim. The Solicitors terms are that they charged $3,500/hour plus expenses. This hourly charge flies in the face of what was agreed by claimants with D1.”
43. Having rejected the submissions, made on behalf of the 2nd respondent, that the availability of legal aid to pursue their claim had been explained to them, that having been asserted on the retainer documents made between the claimants and Yeong & Co, the judge noted that despite the conflict between the documents no conflict had arisen in any of the claims. Of that, she found :[46]
“ I asked myself why and the only plausible reasonable explanation is that the retainer was for the purposes of window dressing. I find the reality of the situation is the document was fiction. This retainer was for show only which explains why hardly one claimant clearly recalled its contents or recall signing it. Confusion reigned amongst the majority of witnesses when either shown a retainer they had signed or a sample letter. It also explains why the witnesses had vague or no or little recollection of being told they had a right to apply for Legal Aid. The only possible explanation is they were not informed properly of the contents of the letter and the hourly charge. They were not told because it was a superfluous document. I find this retainer was not meant to be enforced or apply to the claimants bought to Y & Co by D1. These claimants were meant only to be bound by D1’s service fee and D2 represented them on that basis.
This is the only explanation for how so many identical individual arrangements with 2 very different fee structures succeeded or worked without any discussion or any argument or any dispute between parties as to costs. To suggest they co-existed side by side without any mention or any conflict ever arising is just implausible. Exhibit D1, the retainer was only for appearances; for there to appear to be separate relationships in place. It was a sham for the purposes of disguising the true nature of the scheme between D1 and D2 to deceive if necessary, a third party, the courts or a governing body such as the Law Society.” [Italics added.]
44. The judge went on to state that she found that other evidence supported that finding. In particular, she noted that in accordance with the agreement of the 1st respondent with the claimants, Yeong & Co :
“ ..issued 2 cheques, one for 80% and one for 20%. This clearly facilitated the terms of D1’s agreement (P3). They knew there was a 20% service fee and deducted it on behalf of D1. That 2nd cheque for 20% was never intended for any claimant only D1. There was care taken to not make D1 the payee so cheques were either blank or in the claimants name but a bearer cheque. I am sure that was deliberate. D1 was the only one to receive that 20% where all claimants are concerned.
In addition, I do not believe D2’s response under caution that it was their clients that had given instructions to prepare 2 cheques for collection. I am sure as the witnesses all confirmed they did no such thing. It is noteworthy it was not put to any witness that they did give such an odd instruction to Y & Co.
These split cheques are more than just suspicious as submitted, they are damning. It indicates very strongly that D2 worked together with D1 to fulfill the agreement D1 made with claimants.
Working together towards this agreement meant Y & Co could not collect any funds on account and they did not. That fact alone would of course not be sufficient but when considered with other facts collectively it is very telling.
Another relevant factor that points to this collaboration is that all cases settled and all costs agreed without requiring taxation. This would have to be the case to make the champertous agreement work to benefit all. It is noteworthy, the claims had to be settled and costs agreed or else Y & Co stood to lose the most financially. Therein lays the conflict of interest I will come to.” [Italics added.]
45. Of the conflict of interest, the judge went on to find :[47]
“ Y & Co in each case agreed costs with the opposition and received it. Y & Co acquired a financial interest in the outcome of the litigation. Y & Co would suffer a loss if no award was negotiated or agreed. Y & Co received an advantage if this took place in the form of costs.”
46. Of the consequent risk to the integrity of the judicial process, the judge went on to determine :[48]
“ When a client’s interest is not a lawyers primary interest then a genuine risk of abuse exists. When a lawyer also has to look after his own interest where the outcome of a claim is concerned then that risk is real and genuine.”
47. In light of those findings, it is very difficult to understand how the judge said in her Reasons for Sentence that she accepted that :
“ there is no evidence of cheating, deceit, fraud or any misrepresentations to the claimants from either defendant.”
The claimants were deceived into signing the retainer without being told its true purpose. It is clear, that the plan pursued by the 2nd respondent provided that he would claim, negotiate and agree a settlement of costs to be paid by the defendants, all the while concealing that from the claimants. As the judge found herself, the retainer was a “sham”, “window dressing”, “fiction” and a “facade”. In making her finding that there was “no evidence of cheating, deceit, fraud or any misrepresentations to the claimants” the judge fell into error.
48. Moreover, given the judge’s trenchant findings as to the true nature of the various retainers, in particular the determination that they were “not meant to be enforced or to apply to the claimants”, it is clear that the retainers had no validity at all. They created no liability in the claimants to Yeong & Co. The judge said so in terms : “The claimants were not liable to Yeong & Co for any costs.” [49] That being the case there was no basis for the 2nd respondent to claim, negotiate and receive payments of costs from the defendants in the civil claims to Yeong & Co. That conduct was necessarily predicated on the premise that the claimants had a liability to Yeong & Co for legal fees. That was false and the payment of $3,867,883 from the defendants in the civil actions was obtained by fraud. The judge erred in failing to take that into account in having regard to the culpability of the 2nd respondent.
49. As noted earlier the judge said in the Reasons for Sentence that she viewed as a “good mitigation” the assertion made on behalf of the 2nd respondent that “once the circular spelt out the consequences of acting in claims financed by recovery agents, the 2nd defendant stopped and ceased to take on cases on this basis.” [50] In an exchange on this issue between the judge and Mr Cheng Huan in the course of mitigation, after he confirmed that those were his instructions, the judge said that she took that “on board”.[51] The judge had asked counsel if his instructions were that “the 2nd defendant stopped this practice because of this circular”.
50. It is to be noted that whilst the circular was issued on 17 May 2005, the last of the champertous agreements with the claimants was entered into by the 1st respondent on 15 October 2004 and the Yeong & Co retainer was dated 4 November 2004. It follows that the last agreement reached by Yeong & Co at the behest of the 2nd respondent with a claimant was more than six months prior to the issue of the circular. By contrast, there were eight such agreements in the period 10 January to 15 October 2004 that were the subject of some of the charges in charges 1 to 25. A ninth agreement was made on 6 October 2004 with the claimant concerned with Charge 26, with which the 2nd respondent was not charged.
51. Whether or not it was the issue of the circular, some six months after he entered into the last retainer, that persuaded the 2nd respondent to cease to “take up” new champertous actions, it is clear that he continued to operate and process the existing champertous arrangements. That much was acknowledged in the written submissions of Mr Cheng Huan. In the period post-17 May 2005 to 27 April 2007, pursuant to the champertous arrangement by which the 1st respondent received 20% of the damages paid to each complainant, the 2nd respondent caused Yeong & Co to issue 18 cheques to the 2nd respondent to a total value of $808,200.
52. The seven cheques, drawn upon the bank account of Yeong & Co, in the period prior to 17 May 2005 by which payment of a total of $624,626, was made to the 1st respondent of his share of the damages received from the defendants, stipulated either QPCL or the 1st respondent as payee and were paid into their respective bank accounts.[52] The photocopies, adduced into evidence by the 2nd respondent, of six only of those cheques and six related cheques, by which payment was made to six of the claimants of their 80% share of the damages, were all blank as to payee and were bearer cheques. The respective claimants signed on chops of acknowledgement of receipt impressed on the respective photocopies. By contrast, the photocopies of the sets of two cheques adduced into evidence in respect of 17 only [53] of the 18 payments made post-17 May 2005 stipulated the respective claimant as the payee of each of the two cheques. Nevertheless, all 18 of those cheques, representing the payment of 20% of the damages due to the 1st respondent, were paid into his bank account endorsed with his identity card number on the obverse side of the cheque.
53. As noted earlier, the judge found :[54]
“ That 2nd cheque for 20% was never intended for any claimant only D1. There was care taken to not make D1 the payee so cheques were either blank or in the claimants name but a bearer cheque. I am sure that was deliberate. D1 was the only one to receive that 20% where all claimants are concerned.
In addition, I do not believe D2’s response under caution that it was their clients that had given instructions to prepare 2 cheques for collection. I am sure as the witnesses all confirmed they did no such thing. It is noteworthy it was not put to any witness that they did give such an odd instruction to Y & Co.”
54. It is clear from the judge’s findings that she was satisfied that steps were taken in Yeong & Co to conceal that the 1st respondent was the recipient of those cheques. Although she did not advert to the change in the practice at Yeong & Co post-17 May 2005, it is clear that there was a refinement in the method of concealment. Thereafter, records were created in which the claimant was named as the payee of the cheque representing payment of 20% of the damages, although subsequently all the cheques were deposited into the bank account of the 1st respondent.
55. It is to be noted that in the Law Society circular of 17 May 2005, under the rubric ‘Misconduct of Solicitors acting in claims financed by Recovery Agents’, the following directions were provided to solicitors : [55]
“ 5. If a solicitor passes on part of the accident victim’s compensation to the recovery agent, then, apart from committing professional misconduct, he renders himself liable to a civil claim by the accident victim.
6. Further, depending on the exact arrangement between the solicitor and the recovery agent, the solicitor may be guilty of the offence of aiding and abetting the offence of champerty. He may also render himself in breach of section 49(1) of the Legal Practitioners Ordinance.”
56. The 2nd respondent’s conduct in causing Yeong & Co to make payments to a total of $808,200 to the 1st respondent post-17 May 2005 was in contemptuous and blatant disregard of the Law Society’s circular.
57. We are satisfied that in all those circumstances, the practice of concealment in the records of Yeong & Co of the fact that payments were being made to the 1st respondent from damages received for claimants evidences unambiguously the fact that the 2nd respondent was fully aware that he was engaged in champerty and that the conduct was unlawful. The refinement of the practice of concealment post-17 May 2005, to produce records of acknowledgement signed by the claimants in respect of two cheques drawn in their favour as payees, one of which was paid into the account of the 1st respondent was entirely consistent with that being the case. It served to conceal better the specifically impugned practice identified in the circular of passing on “part of the accident victim compensation to the recovery agent”. Further, it served to support the contention, rejected by the judge, that the two cheques had been made out at the request of the claimants. Also, it permitted the contention to be made that the subsequent banking of the cheques in the bank account of the 1st respondent was nothing to do with Yeong & Co.[56]
58. By contrast, the 1st respondent was not a solicitor and there was no evidence that he had sight of the Law Society circular of 17 May 2005. The seven cheques that he received prior to 17 May 2005 in respect of payments of his share of the damages of a claimant were in his name or that of QPCL and paid into those respective accounts. There was no evidence that he was aware of the photocopy records made of those seven cheques in Yeong & Co, receipt of which was acknowledged by the respective claimants. Similarly, there was no evidence that the 1st respondent was aware of the refined practice in Yeong & Co in which, post-17 May 2005, photocopy records were made of the 17 sets of cheques in which the claimant was stipulated as the payee of those cheques, receipt of which was acknowledged by the respective claimant. Accordingly, there was no evidence that the 1st respondent was aware of let alone a participant in the steps taken by the 2nd respondent at Yeong & Co to deliberately conceal the payment to the 1st respondent in pursuance of the champertous agreements.
59. On the other hand, it is to be noted that although the judge had adverted[57] to the fact that the 1st respondent had publicised the services offered by QPCL in brochures[58], those brochures made no mention of any provision that the claimant pay a percentage of the damages received to QPCL. Rather, it simply asserted that QPCL would “charge the most reasonable fees only after compensation is claimed successfully.” By contrast, the documents that the claimants were required to sign by QPCL stipulated clearly that the fees to be paid by the claimant were based on a percentage of the compensation received.
60. Given the undisputed evidence that, far from desisting in their conduct, the respondents continued to advance the champertous agreements for almost two years after the issue of the Law Society circular dated 17 May 2005 the judge was wrong to determine that “once the circular spelt out the consequences of acting in claims financed by recovery agents, the 2nd defendant stopped and ceased to take on cases on the basis”.[59] Similarly, the judge was wrong to determine that it was “strong mitigation” that the defendants “decided to stop acting on this basis” in consequence of the publication of the Law Society circular. The respondents had not “stopped acting on this basis”. They continued to advance the illegal champertous agreements to the extent described earlier. On the other hand it was in their favour that they had not entered into any new agreements. The judge was correct to have determined :[60]
“ If the 1st and 2nd defendant had continued after such a circular or knowledge had become common knowledge a more serious and heavier sentence would be appropriate.”
61. The Judge’s findings, in particular that the 2nd respondent’s creation of the retainer agreements with the claimants was a “sham” and, in effect, no more than a “facade” to conceal the operation of the illegal champertous agreement, the retainer agreement was clearly of no legal effect. Clearly, the 2nd respondent knew that. The suggestion that the 2nd respondent continued to operate and process the champertous agreements because he felt obliged to do so under the retainer is a bereft of any merit whatsoever.
62. The judge’s observation in her Reasons for Sentence that : [61]
“ It may very well be that the 2nd defendant believed that by only taking the costs agreed and not a percentage or a portion of the award received, he was not acting improperly or indeed illegally. If that was what he thought, he was mistaken, but it would explain why he worked together with the 1st defendant in this manner.”
is of no assistance to the 2nd respondent, given her finding in her Reasons for Verdict: [62] “I am sure D2 not only had knowledge of those champertous agreements but also participated in them to see them to fruition.” In that context, the judge had noted that electronic copies of the pro forma versions of two of the four documents that the 1st respondent required claimants to sign, namely the ‘Accident Claim Service Agreement’ on the letterhead of QPCL and the Letter of Authorisation permitting the solicitors to pay a percentage of the total compensation money to QPCL had been found in a computer at the premises of Yeong & Co. The two versions of the former document refer specifically to an agreement by the claimant to pay QPCL a percentage of damages recovered in the civil action.
63. Rather, it is against the 2nd respondent. It is consistent with the judge’s findings that the retainer was set up as a “facade” and “care taken to make no reference to D1 especially where the direct payment of 20% is concerned”.[63] That resonates with the judge’s findings in respect of the splitting of the two cheques drawn to disperse the damages received from the defendants, “It indicates very strongly that D2 worked together with D1 to fulfil the agreement that D1 made with the claimants.” [64]
64. Of the culpability of the 1st respondent, it is to be noted that in the Reasons for Verdict the judge rejected the submissions made that he was “not an ambulance chaser”.[65] She noted that three of the claimants testified that they had been approached in hospital by the 1st respondent or a representative of QPCL and that the fourth claimant said that he had received a telephone call from the 1st respondent, who was clearly aware of the fact of his injuries, offering his services. Furthermore, there was no dispute that two of the claimants were young persons, aged 18 and 19 years respectively, and two of them older persons, aged 71 and 75 years. Nevertheless, there was no evidence of exploitation of their vulnerability of the kind found by this Court to have obtained in HKSAR v Mui Kwok Keung.
65. On the other hand, there is no dispute that the 1st respondent was not culpable of any misrepresentation, fraud or deceit. So, the judge’s findings in respect of that issue are valid in respect of the 1st respondent, but not in respect of the 2nd respondent. Similarly, the judge was correct to take into account in his favour the conduct of the defence of the 1st respondent at trial, but clearly she was not justified in doing so in respect of the 2nd respondent, albeit that she said she did so in favour of both of them.[66] The judge said in her Reasons for Sentence that “in the course of the trial the 1st defendant did not challenge any of the prosecution’s case or the credibility of the prosecution witnesses”.[67] Further, the judge said of the defence of the 2nd respondent and his wife at trial that “the defence…. went to great lengths during cross-examination to establish that each claimant signed D1’s documents and agreement before they came to Y& Co.” As the judge noted, the trial lasted 21 days, one day more than the estimated length of trial.[68]
66. Of course, the judge was correct in taking into account the fact that the 1st and 2nd respondents were of good character. Of relevance to that, was that they were aged 62 and 44 years respectively. Furthermore, although she did not say so specifically, it is clear that she treated the 2nd respondent as of positive good character, describing him as “civic minded, humble and of charitable character.” [69]
Delay/old offences
67. The offences having been committed in the period to the November 2001 to April 2007, there is no dispute that they were committed many years prior to the date on which the respondents were sentenced, namely 24 April 2014. The court was informed that the investigation began in consequence of an anonymous letter of complaint received in 2010.[70]
68. It was an admitted fact that the respondents had been arrested separately on 14 December 2010.[71] The 2nd respondent had been charged with the offences for which he stood trial on 28 February 2013. Mr David Leung sought to explain the long delay between those two events on the basis of the extensive investigation conducted by the police: over 32 claimants had been identified and interviewed; in the event, 63 witness statements totalling 636 pages were served on the defence for purposes of the trial together with multiple bankers affirmations, including a paginated bundle of documents used at trial totalling 4,682 pages. Legal advice had been sought from the Department of Justice on six occasions in respect of different tranches of the 32 cases in the period January to October 2012. Advice had been given in response on four occasions, the final advice being given in January 2013.
69. As the judge noted in her Reasons for Verdict, 25 claimants were called to give oral testimony at trial as well as two relatives who were able to speak to those same issues.[72] In addition, two ICAC officers testified as to seizures of exhibits and two solicitors, who acted on behalf of defendants in the civil action, were called at the request of the defence.
70. Having been charged on 28 February 2013 and having appeared in the Magistracy shortly thereafter, the case against the respondents was transferred to the District Court in early March 2013. At the first hearing in the District Court on 22 March 2013, the 1st respondent applied for legal aid. Although that was granted in April 2013, counsel was not assigned to represent the 1st respondent until 19 August 2013. Prior to that, the 1st respondent had been represented by counsel from the Legal Aid Department at hearings in May and July 2013. At the latter date, the case was listed for trial to commence on 6 January 2014, with a pre-trial review on 8 November 2013. The trial commenced on 6 January and concluded on 19 March 2014, with judgment reserved until 22 April 2014.
71. Although a period of 26 months ensued between the arrest of the respondents and the date of their being charged, it is clear that the scope of the investigation was very extensive. The voluminous documentary exhibits put into the paginated bundles used at trial, including about 1,000 pages of bankers’ affirmations and related exhibits, speak eloquently to the extent of the material used at trial, whilst it is clear that the overall investigation was even wider than that evidenced by the trial itself. Obviously, the allegations were serious. We are satisfied that there was no unjustified delay, on behalf of the prosecution in the conduct of those investigations or, on its face, in seeking and receiving legal advice. Once the matter reached the District Court, it is clear that an element of the delay in listing the matter for trial lay in the fact that the 1st respondent successfully pursued an application for legal aid to be granted so that he might be represented at trial. Otherwise, matters proceeded as was to be expected of a case of this size. Similarly, in all the circumstances, we are satisfied that there was no untoward delay in bringing the matter on for trial, conducting the trial and delivering verdicts.
72. In all those circumstances, whilst it is the fact that the respondents had embarked on the commission of the offences 13 years prior to sentencing they had continued that conduct until 2007 and the offences had not come to light until December 2010, we are satisfied that it was not appropriate to afford the respondents any discount of sentence in respect of the age of the offences or the passage of time from arrest to verdict.
73. In the result, we are satisfied that the errors in the judge’s Reasons for Sentence that we have identified led her to impose sentences that were both wrong in principle and also unduly lenient on the respondents. Accordingly, we approach the issue of sentencing the respondents afresh. In doing so, we have had regard to the factors going to the gravity of the commission of the offences and to the factors of mitigation set out earlier. Clearly, the nub of the gravity of the commission of the offences lies in the fact that the offences were committed over a period of more than five years, involved 25 claimants for both respondents and 26 for the 1st respondent, involved over $7.3 million in damages, of which the 1st respondent received $1,448,826 as his share of the champertous bargains and the 2nd respondent fraudulently obtained $3,867,883 to be paid to Yeong & Co as costs by the defendants in the civil actions. For the 2nd respondent, the commission of those offences was aggravated by the circumstances of the creation of the retainers and the fraudulent manner in which payment of costs to Yeong & Co was obtained from the defendants.
74. By the champertous agreements the proper conduct of these civil actions on behalf of the complainant’s was put at risk. There was a driving imperative that a negotiated settlement be reached in respect of both damages and costs. Otherwise, Yeong & Co were at risk for their own costs. The danger is obvious: the self-interest of the parties to the champertous agreements is always present.
75. On the other hand, the respondents, who are middle-aged and more, have lost their reputations having lived productive and useful lives hitherto. We were surprised to learn that notwithstanding the fact that the 2nd respondent has not lodged an application for leave to appeal against conviction and has been sentenced to a term of imprisonment for 15 months, albeit suspended, that he still has a practicing certificate as a solicitor. Nevertheless, we are satisfied that the judge was correct to determine that there was no likelihood of either respondent re-offending.[73]
Starting point
76. We are satisfied that it is appropriate to take a global approach to sentencing on the multiple charges. In our judgment, the appropriate starting point for sentence on each of the charges for the 1st respondent is 3 years’ imprisonment and 4 years’ imprisonment for the 2nd respondent. Given that the respondents were convicted after trial, normally they would not be entitled to any discount from those sentences.
Discount
77. However, we are satisfied that the 1st respondent is entitled to some discount from that taken as the starting point for sentence to reflect the productive life he has led as a man of good character until he was aged 62 years, together with a discount to reflect the manner in which the trial was conducted on his behalf. In our judgment, the appropriate discount is 4 months’ imprisonment.
78. The 2nd respondent is entitled to a discount of sentence to reflect not only his good character but also his positive good character, evidenced by his conduct in a variety of ways: charitable donations, the provision of free legal advice on a regular basis over many years, including to those using the services of the International Human Rights Channel. In our judgment, the appropriate discount is 4 months’ imprisonment.
Review of sentence
79. Finally, having regard to the fact that the sentences to be imposed on the respondents are “substantially in excess of that imposed below” [74] we are satisfied that it is appropriate to afford the respondents a further discount in the sentence to be imposed on them. In all the circumstances of this case, in our judgment the appropriate further discount is 6 months’ imprisonment.
Conclusion
80. In the result, we grant the applications and quash the sentences of imprisonment imposed on them for each of the charges of which they were convicted by District Court Judge Woodcock, namely 12 months’ and 15 months’ imprisonment suspended for 18 months and 2 years. In their place, we substitute a sentence of 2 years and 2 months’ imprisonment for the 1st respondent and 3 years and 2 months’ imprisonment for the 2nd respondent on each of the charges on which they were convicted respectively. We order that all those sentences be served concurrently.
| (Michael Lunn) |
(IAN MCWALTERS) |
(DEREK PANG) |
| Vice-President |
Justice of Appeal |
JUDGE OF THE COURT OF |
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First Instance |
Mr David Leung, DDPP and Ms Irene Fan, SPP of Department of Justice, for the applicant
Mr Kevin B. Egan instructed by T. H. Wong & Co., assigned by Director of Legal Aid, for the 1st respondent
Mr Cheng Huan, SC, Mr Paul Leung and Ms Sharon Chan, instructed by Tam & Partners, for the 2nd respondent
[1] Appeal Bundle, page 134 R.
[2] Appeal Bundle, page 133 K-L.
[3] Appeal Bundle, page 8.
[4] Appeal Bundle, pages 229 F-230 J.
[5] Quickway Professional Consultants Limited (“QPCL”).
[6] The 2nd respondent and his wife, the erstwhile 3rd defendant at trial, were the only partners of Yeong & Co at all material times: Admitted Facts; Appeal Bundle, page 37.
[7] Exhibit P1.
[8] Exhibit P2.
[9] Exhibits P3 and P4.
[10] Exhibit D1A.
[11] Appeal Bundle, pages 125 Q-S; 129 H-O and 135 K - 135 A.
[12] Appeal Bundle, page 230 N-P.
[13] Appeal Bundle, page 31 C-D.
[14] Appeal Bundle, page 232 S-T.
[15] Appeal Bundle, page 233 A-C.
[16] Appeal Bundle, page 233 E-G.
[17] Appeal Bundle, page 233 M-P.
[18] Appeal Bundle, page 235 P.
[19] Appeal Bundle, page 234 S-T
[20] Appeal Bundle, page 236 C-D.
[21] Appeal Bundle, page 235 E.
[22] Appeal Bundle, page 235 T-U.
[23] Appeal Bundle, page 235 J-K.
[24] HKSAR v Mui Kwok Keung [2014] 1 HKLRD 116.
[25] Appeal Bundle, page 235 L-N.
[26] Appeal Bundle, page 236 P-Q.
[27] Appeal Bundle, page 236 R-U.
[28] Appeal Bundle, pages 114 U - 115 M.
[29] Appeal Bundle, page 115 G-H.
[30] HKSAR v Cheung Suet Ting [2010] 6 HKC 249; at page 261 G-H, paragraph 34.
[31] Attorney General’s Reference No. 4 of (1989 ) 11 Cr. App. R (S) 517, at 521.
[32] Appeal Bundle, page 233 S-U.
[33] HKSAR v Winnie Lo (CACC 254/2009; unreported, 3 December 2010).
[34] HKSAR v Mui Kwok Keung; page 140, paragraph 77.
[35] HKSAR v Mui Kwok Keung; page 139, paragraph 76.
[36] HKSAR v Mui Kwok Keung; page 140, paragraph 80.
[37] Appeal Bundle, page 230 E.
[38] Appeal Bundle, page 235 I-K.
[39] Appeal Bundle, page 230 E-I.
[40] Appeal Bundle, page 230 K-M.
[41] The Queen v Lam Lai Chun (CACC 343/1988; unreported, 13 December 1988).
[42] The Queen v Lam Lai Chun, page 5.
[43] Appeal Bundle, page 236 F-U.
[44] Appeal Bundle, page 229 D.
[45] Appeal Bundle, page 114 H-K.
[46] Appeal Bundle, pages 114 S - 115 O.
[47] Appeal Bundle, page 119 R-U.
[48] Appeal Bundle, page 122 C-E.
[49] Appeal Bundle, page 230 G-H.
[50] Appeal Bundle, page 232 S-U.
[51] Appeal Bundle, page 1304 L-U.
[52] Charges 2-4, 8, 9 and 23.
[53] No photocopy ‘Acknowledgement of Receipt’ was adduced into evidence in respect of the cheques relevant to Charge 17.
[54] Appeal Bundle, pages 115 U - 116 G.
[55] Appeal Bundle, page 227.
[56] Appeal Bundle, page 91 I-J : Reasons for Verdict, “In his second interview he (the 2nd respondent) elaborated further and claimed he did not know what his client did with the two cheques prepared.”
[57] Appeal Bundle, page 233 T.
[58] Exhibit P399.
[59] Appeal Bundle, page 232 S-U.
[60] Appeal Bundle, page 236 D-E.
[61] Appeal Bundle, page 233 E-H.
[62] Appeal Bundle, page 119 N-O.
[63] Appeal Bundle, pages 117 U - 118 B.
[64] Appeal Bundle, page 116 I-J.
[65] Appeal Bundle, page 102 E-H.
[66] Appeal Bundle, page 236 P-Q: “However, I do take into account the way the trial was conducted by the defence. The defence hung their hat on legal submissions and arguments to defend the charges.”
[67] Appeal Bundle, page 234 A-B; page 100 T-U.
[68] Appeal Bundle, page 93 C-D.
[69] Appeal Bundle, page 234 S-T.
[70] Appeal Bundle, page 136 N-U.
[71] Appeal Bundle, pages 45-46, paragraphs 102 and 106.
[72] Appeal Bundle, page 93 C-G.
[73] Appeal Bundle, page 237 A-B.
[74] Secretary for Justice v Wong Hong Leung [2010] 1 HKLRD 226; Stock VP at 235, paragraph 28.
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