HKSAR v. CHAE MAN TOCK AND ANOTHER

CACC 255 of 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 255 OF 2012

(ON APPEAL FROM DCCC 973 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court) :

1.  The 1^st and 2^nd applicants, who are husband and wife and were at all material times, sought the leave of the court to appeal against their convictions after trial by District Court Judge Browne on 6 June 2012 of multiple charges of fraud and other charges arising out of their conduct in the business of Promo International Limited, a company incorporated in the United Kingdom in December 2003, and trading as Olympicpromo, referred to as ‘OIL-UK’ at the trial.

2.  In 2003, OIL-UK set up and then operated an office in Shenzhen from which it sourced set up factories to manufacture promotional products for its customers in the United Kingdom and elsewhere in the European Union.  The Shenzhen office had 6-8 employees of whom the General Manager was Ms Brenda Chang.  In February/March 2007, the Shenzhen office was closed down and an office in Sheung Shui in Hong Kong opened on 2 May 2007.  The Hong Kong office, referred to at the trial as ‘OIL-HK’, had no formal legal identity.  The 1^st applicant was first employed by OIL-UK in April 2006 to work as a merchandiser in the Shenzhen office.  The 2^nd applicant was recruited by the 1^st applicant as a merchandiser and employed by OIL-UK in August 2007 to work for OIL-HK.

THE CHARGES

3.  The Charges, which stipulated various dates in the overall period of 14 May 2007 to 15 August 2010, reflected the prosecution allegations that both the 1^st and 2^nd applicants were employees of OIL-UK and that they had misconducted themselves in the discharges of their duties as employees in that, unknown to OIL-UK, secretly they had taken commissions and inflated prices charged to OIL-UK for products that they had arranged to be manufactured on the Mainland.  The 1^st and 2^nd applicants were the beneficiaries of those commissions and inflated prices in that, on receipt of payment for the goods from OIL-UK, the manufacturers paid that element of the total price to the applicants.

Charges 1 and 2 (1^st and 2^nd applicants)

4.  Charges 1 and 2 alleged that jointly, on 14 May and 3 July 2007 respectively, without lawful authority or reasonable excuse the applicants, the 1^st applicant as an employee and the 2^nd applicant as an agent of OIL-UK, had accepted advantages, US$960 and US$2,717 respectively, from Mr Yuan Shenyong in relation to their principal’s affairs, namely awarding purchase orders of OIL-UK to Mega Handbag Manufactory Limited (“Mega Handbag”), contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201.

Charges 17 and 18 (2^nd applicant)

5.  In the alternative, Charges 17 and 18 alleged, against the 2^nd applicant only, that on the dates stipulated in Charges 1 and 2 she had aided, abetted, counselled and procured the 1^st applicant, an agent of OIL-UK, without lawful authority or reasonable excuse to accept those advantages, contrary to section 89 of the Criminal Procedure Ordinance, Cap. 221 and sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201.

Charges 3, 4 and 5 (2^nd applicant)

6.  Charges 3, 4 and 5 alleged that without lawful authority or reasonable excuse the 2^nd applicant as an agent of OIL-UK had accepted advantages from stipulated persons in relation to his principal’s affairs, namely awarding purchase orders of OIL-UK to named Mainland manufacturers, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201.

7.  Charges 3 alleged that on and between 1 April and 31 July 2009 the 2^nd applicant had received an advantage, namely $32,738 from Man Kim Ming and Chan Wai Chung in respect of purchase orders from OIL-UK to Macro Development Limited (“Macro Development”).  Charges 4 and 5 alleged that on or about 6 July 2009 and 30 June 2010 respectively the 2^nd applicant had received advantages, namely $2,042 and $31,000 respectively from Chan Wai Chung in respect of purchase orders from OIL-UK to Macro Union Co (“Macro Union”).

Charges 6, 9 to 11 (1^st and 2^nd applicants)

8.  Charges 6 and 9 to 11 alleged that the 1^st and 2^nd applicants jointly committed fraud in respect of representations that they made to Mainland manufacturers that the inflated amounts that were stated on their invoices had been approved by OIL-UK with the intent of defrauding the latter by inducing them to pay those invoices, either to the benefit of the applicants or to the prejudice of OIL-UK, contrary to section 16A of the Theft Ordinance, Cap. 210.

9.  Charge 6 alleged fraud in the period between 1 March and 30 November 2007 in respect of dealings between OIL-UK and Mega.  Charges 9 alleged fraud in the period between 1 November 2008 and 31 January 2009 in respect of dealings between OIL-UK and MCP Gifts Enterprise Company Limited.  Charge 10 alleged fraud in the period between 1 December 2008 and 30 June 2009 in respect of dealings between OIL-UK and Macro Development.  Charge 11 alleged fraud in the period between 1 May 2009 and 30 June 2010 in respect of dealings between OIL-UK and Macro Union.

Charge 16 (1^st and 2^nd applicants)

10.  Charge 16 alleged that, between 5 September 2007 and 15 August 2010, the applicants conspired together and with Yeung Hoi Fan to defraud OIL-UK in respect of 21 manufacturers who supplied goods to OIL-UK by dishonestly inflating prices stipulated on invoices, which were submitted to OIL-UK, causing the latter to place purchase orders and make payments at those inflated prices, after which the 21 manufacturers made payments to the applicants.

Charges 19 to 39 (1^st and 2^nd applicants)

11.  In face of the evidence of Yeung Hoi Fan, in particular his denial that he was a party to such a conspiracy, and given that the applicants were husband and wife, shortly before the close of its case the prosecution applied for, and the judge permitted, the addition of Charges 19 to 39, namely 21 charges of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210.  The Particulars of Offence of each of those charges alleged that, on stipulated dates, the applicants caused the submission of invoices of the respective 21 manufacturers to OIL-UK, which invoices reflected inflated prices with the intent of defrauding OIL-UK by inducing it to make payments to the respective manufacturers at those inflated prices, to the benefit of the applicants or prejudice of OIL-UK.

12.  Following the closure of the prosecution case, the judge acceded to a submission made on behalf of the applicants that there was ‘no case to answer’ in respect of Charge 16, and the applicants were acquitted of the charge.

THE TRIAL

13.  There was no dispute that the function of the office opened by OIL-UK in Shenzhen in 2003 was to source the manufacture of goods for OIL-UK.  Purchase orders for the supply of goods were issued by OIL-UK to whom invoices were issued and by whom payments, both deposits and the balance of payments due, were made directly to the manufacturers.  Further, the employees, including the 1^st applicant, were paid their salaries directly into their respective bank accounts from OIL-UK’s bank in the United Kingdom.  The expenses of the Shenzhen office were met by payments from OIL-UK into an account created for that purpose in the name of the office manager, Ms Brenda Chang.

14.  There was no dispute at trial that the 1^st applicant had been an employee of OIL-UK from April 2006 until the end of April 2007.  During that period he worked at the OIL-UK office in Shenzhen.  However, in the spring of 2007 that office was closed.  Ms Brenda Cheng resigned and left the employment of OIL-UK in about March 2007.

The prosecution case

15.  The prosecution case was that the method of doing business that had obtained when the Shenzhen office was operating was continued once the office of OIL-HK was opened in May 2007.  The 1^st applicant continued as an employee of OIL-UK.  Now, he was the General Manager.  OIL-UK continued to issue purchase orders, received invoices and make related payments directly to the manufacturers in the Mainland.  The 1^st applicant opened a bank account, a ‘petty cash’ account, in his name into which monies were paid on a regular basis from OIL-UK and from which the expenses of OIL-HK, other than the salaries of staff, were met.

16.  According to the prosecution case, the only change in respect of the 1^st applicant was that his salary was now denominated in Pounds Sterling and OIL-UK no longer made payments on his behalf into his Mandatory Provident Fund (“MPF”).

17.  Mr John Palmer, the Operations Manager of OIL-UK, testified that he had interviewed the 1^st applicant for the position of Merchandising Manager in the Shenzhen office.  Subsequently, he witnessed the 1^st applicant signing a contract of employment with OIL-UK dated 6 April 2006.  The contract was in standard form, a template of which was stored in a computer from which it had been printed.  He produced into evidence a photocopy version of that contract, exhibit P9.  The original of the contract had been kept in the Shenzhen office, so that it could be shown to Mainland authorities if necessary.  However, it, together with many other documents, could not be found following the closure of that office.  Mr Peter Townsend, Managing Director of OIL-UK, confirmed that a photocopy version of the contract had been brought back to OIL-UK’s offices.

18.  Mr Peter Townsend said that the 1^st applicant had requested a change of the currency in which he was paid from Hong Kong Dollars to Pounds Sterling and that OIL-UK no longer pay a contribution to his MPF.  He produced a copy of a letter dated 4 May 2007, exhibit P10, that he had sent to the 1^st applicant confirming that arrangement and stipulating that the 1^st applicant continued as an employee of the company bound by his existing employment contract.

19.  The nub of the prosecution case was that the applicants were both involved in a fraudulent scheme in which, by their arrangement with manufacturers in the Mainland, inflated prices were charged in invoices rendered to OIL-UK on which basis the latter made payments to Mainland factories for their goods.  The scheme was simple : the applicants caused an extra payment to be added to the quotation received from the Mainland factory.  The pro forma invoice reflected the inflated price and was the basis on which the purchase order was issued by OIL-UK.  In due course, the commercial invoice reflected the inflated price on which OIL-UK made payments to the Mainland manufacturers.  In addition to inflating prices, sometimes commissions were added.  Also, arrangements were made for the ‘tooling’ costs to be inflated.  By arrangement with the Mainland factories the applicants received payment of the inflated monies into bank accounts in their name in Hong Kong.  Most of those payments were made into a bank account of the 2^nd applicant.

20.  Although the 2^nd applicant did not become an employee of OIL-UK until August 2007, it was the prosecution case that she and the 1^st applicant had embarked upon the fraudulent scheme even before the OIL-HK office was opened.  They did so by arrangement with Mr Yuan of Mega.

The defence case

21.  The 1^st applicant testified at the trial.  Whilst he accepted that he had been an employee of OIL-UK, he said that the arrangement had come to an end when the Shenzhen office was closed and the Hong Kong office opened.  Then, he had reached arrangement with Mr Peter Townsend where they would operate in a loose partnership arrangement.  He was entitled to inflate invoice prices issued by Mainland manufacturers, which ultimately were sent to and paid by OIL-UK.  That was a profit to which he was entitled.  In those circumstances, he was entitled to and did authorise payments of commission to the 2^nd applicant.  She was aware that he was no longer an employee.

22.  The 1^st applicant testified that he had never seen, let alone signed, the contract of employment (exhibit P9) dated 6 April 2006.  There had not been a written contract of employment.  Further, he had never received the letter dated 4 May 2007 (exhibit P10).  The change of the currency paid into his bank account from Hong Kong dollars to Sterling was made at the direction of Mr Peter Townsend as was the discontinuation of any payment into his MPF by the company.  He was told that this was to his advantage for tax purposes.  The monies paid monthly into his bank account were not wages, as stated on the documentation of the company and its bank, rather they were payments towards the expenses of the Hong Kong office.

23.  Mr Valerie Aginsky, an expert in the examination of documents, testified that the contract of employment, exhibit P9, was not a first-generation photocopy of the original.

REASONS FOR VERDICT

24.  In his Reasons for Verdict, the judge said that he had[1] “serious reservations about the provenance of the purported contract, P9, and the prosecution evidence concerning the letter P10.”  In the result, he stated that he attached no weight to those documents.  Furthermore, he said that he treated the evidence of Mr Peter Townsend and Mr Phillip Palmer “with the greatest caution”.

25.  In determining that the 1^st applicant was an employee of OIL-UK, the judge said that there was[2], “a substantial volume of compelling and persuasive evidence” to that effect.  Earlier, in his Reasons for Verdict the judge had examined the contents of a series of e-mails between the 1^st applicant, Mr Peter Townsend and Mr Phillip Palmer and concluded[3] :

“ The cumulative effect of these e-mails, taken in conjunction with the other circumstantial evidence pointed strongly to D1 (the 1^st applicant) being an employee of OIL-UK rather than a business partner of PW1 (Mr Peter Townsend) as he alleged.”

26.  The judge rejected the applicant’s testimony that the staff of OIL-HK worked for him[4] :

“ This is clearly at odds with the evidence. Their wages and MPF were paid by OIL-UK and there is correspondence where he makes enquiries with OIL-UK as to the bonuses.”

27.  Given that the 1^st applicant accepted in his testimony that the invoices material to the charges which had been presented to OIL-UK were inflated, from the price at which the manufacturer had quoted to OIL-HK, the only controversial issue was whether or not that was known to Mr Peter Townsend and/or Mr Phillip Palmer.  Of that, the judge found[5] :

“ I was also left in not the slightest doubt, taking into account all the evidence, that PW1 (Mr Peter Townsend) and PW24 (Mr Phillip Palmer) had absolutely no idea staff of OIL-HK was marking up the prices of quotations obtained from their suppliers and that D1 and D2 were pocketing the difference.”

28.  Of the 2^nd applicant, the judge concluded[6] :

“ I had no doubt whatsoever that D2 was aware that PW1 and PW24 knew nothing whatsoever about price inflations on purchase orders being sent to them. I was sure that she was aware that D1 was an employee of OIL-UK and had no authority to inflate prices and arrange for money to be paid into her bank account. I was sure that she was aware that OIL-UK was being defrauded.”

29.  In the result, the judge convicted of the 1^st applicant of Charges 1, 2 6, 9 to 11 and 19 to 39 and the 2^nd applicant of Charges 3 to 5, 6, 9 to 11, 17, 18 and 19 to 39.

GROUNDS OF APPEAL AGAINST CONVICTION

The 1^st applicant

30.  By ground 1, of the grounds of appeal against conviction, Mr Grossman SC submitted that the judge had “ignored, discounted or failed to take proper account of” evidence that undermined the prosecution case on the central issue of whether or not the 1^st applicant was an employee of OIL-UK at the material time.  As a result, it was contended that he erred in determining that the 1^st applicant was an employee of OIL-UK at all material times.

31.  It was submitted that the evidence of Mr Peter Townsend and, to a lesser extent, Mr Phillip Palmer was important to the resolution of the issue.  It was contended that other employees of OIL-HK were either unaware of the 1^st applicant’s relationship with OIL-UK or gave evidence which tended to support his evidence, namely that he was in a loose partnership with Mr Peter Townsend.  It was contended that the judge’s determination that he had “serious reservations about the provenance of the purported contract, P9, and the prosecution evidence concerning the letter, P10” amounted, in effect, to a determination that Mr Peter Townsend and Mr Phillip Palmer had forged those documents.  In those circumstances, having stipulated that he approached their evidence with “the greatest caution”, the judge ought not to have accepted their evidence where it was incriminatory of the 1^st applicant. On the contrary, it was asserted that the judge had “accepted PW1’s (Mr Peter Townsend) evidence in its entirety, where it was incriminatory of D1 and D2.”

32.  In addition, it was submitted that the judge had failed to have proper regard to the evidence that undermined Mr Peter Townsend’s testimony that the 1^st applicant was an employee of OIL-UK.  In a letter dated 10 June 2010, signed by Mr Peter Townsend, it was asserted of the 1^st applicant that “after several years of employment (he) requested that his status become self-employed”.  That contradicted Mr Peter Townsend’s testimony.  Also, the 1^st applicant was the only employee of OIL-UK who had signed a contract.  No explanation was forthcoming from Mr Peter Townsend as to why OIL-UK paid the MPF contributions of other staff of OIL-HK, but not those of the 1^st applicant.

Ground 3

33.  By ground 3, it was submitted that the judge erred in permitting the prosecution to add Charges 19 to 39 immediately before the close of the prosecution case.  That was done in the face of a very likely successful submission of ‘no case to answer’ in respect of Charge 16. The substantive charges of fraud were materially different from the charge of conspiracy to the fraud.  Had the 1^st applicant faced those charges at the outset, the 1^st applicant may not have made the admissions in the Admitted Facts.  Also, cross-examination of witnesses would have been conducted on a different basis.  The addition of those charges caused injustice to the 1^st  applicant.

The 2^nd applicant

34.  It was accepted on behalf of the 2^nd applicant that resolution of the issue of whether or not the 1^st applicant was an employee of OIL-UK or in some form of loose partnership with Mr Peter Townsend was crucial to the case of the 2^nd applicant at trial.

Ground 1

35.  By ground 1, it was submitted on behalf the 2^nd applicant that the judge had erred in drawing the inference that the 2^nd applicant knew that at all times material to the charges the 1^st applicant was an employee of OIL-HK.  In particular, the judge had relied wrongly on inadmissible hearsay evidence, namely an e-mail, dated 30 June 2010, (exhibit P1392) sent by the 1^st applicant to Mr Peter Townsend concerning the issue of non-payment by OIL-UK of a bonus to the 2^nd applicant and Mr Daniel Yeung, there being no evidence that the 2^nd applicant was even aware of the communications let alone that she had adopted them.  Further, the judge had relied wrongly on a draft letter, couched in terms of a request for an increase in salary by an employee of an employer, contained in a notebook bearing the 2^nd applicant’s name and found in her desk at the offices of OIL-HK at the time of her arrest on 16 August 2010.  First, there was insufficient evidence to determine that the 2^nd applicant had written the draft letter.  Secondly, it was ambiguous as to its purpose.  Thirdly, it was not known when it was written.

36.  In the alternative, it was contended that, even if the judge was correct in determining that the 1^st applicant was an employee of OIL-HK, nevertheless he was in error to determine that the 2^nd applicant was aware of the limitation of authority of the 1^st applicant, as an employee, and that she knew that OIL-UK was unaware of the inflated prices described in documentation supplied to the latter in respect of the supply of goods by Mainland manufacturers.

Charges 17, 18 and 6 (Mega)

37.  It was submitted that, having regard to the fact that he was a witness testifying under immunity from prosecution and to the internal inconsistencies in his testimony and the inconsistencies between that testimony and his out-of-court statements, the judge erred in accepting the evidence of Mr Yuan Shenyong (Mega) (PW7) that the 2^nd applicant was involved in discussions with Mr Yuan about inflating prices on documentation to be submitted to OIL-UK without the knowledge of the latter.

Charges 17 and 18 (aiding and abetting)

38.  In the alternative, it was submitted that even if the judge was correct in accepting the evidence of Mr Yuan Shenyong his evidence was ambiguous as to whether or not the 2^nd applicant was present at discussions he had with the 1^st applicant about the payment of commission in respect of orders from OIL-UK.  The court was asked to note that the 2^nd applicant was not an employee of OIL-UK until August 2007, whereas Charges 17 and 18 concerned the period on or about 14 May and 3 July 2007.  It was submitted that there was no evidence as to the 2^nd applicant’s knowledge of the ambit of the 1^st applicant’s position and/or authority in the operation of the Shenzhen office of OIL-UK.

Charges 3 to 5 (Macro Development and Macro Union)

39.  It was submitted that, in determining that the 2^nd applicant knew that the 1^st applicant did not have authority to authorise her to receive payments of commission or the balance of the monies made available from inflated invoices, the judge erred in failing to have regard to the evidence that tended to show that he was possessed of that apparent authority.  He was the general manager of the office of OIL-HK.  The 2^nd applicant had reasonable grounds to believe that the 1^st applicant had the authority to give her consent to receive such payments and a reasonable excuse to receive such monies.

A CONSIDERATION OF THE SUBMISSIONS

40.  As the judge noted[7], the main issue of controversy in respect of the 1^st applicant was whether or not at the dates stipulated in the Particulars of Offence of the charges the applicant was an employee of OIL-UK.  There was no dispute that he had been an employee of OIL-UK from April 2006 in its Shenzhen office.  At issue, was whether or not he remained an employee of the company after that office was closed and the Hong Kong office of OIL-UK was opened in May 2007.  Resolution of that issue was also highly relevant to the case of the 2^nd applicant.

41.  In ‘Directions’ that the judge stated in his Reasons for Verdict that he had given himself the judge addressed the fact that a number of witnesses for the prosecution had given evidence under an immunity from prosecution.  Of that, he said[8] : “I therefore treated their evidence with the utmost caution”.

42.  As the judge noted[9], Mr Peter Townsend was one of the witnesses who gave evidence under an ‘immunity from prosecution’.  He observed that the immunity had been provided on the basis that in his testimony he might make admissions of carrying on a business in Hong Kong without having made the requisite registration, thereby attracting liability under sections 5 and 15 of the Business Registration Ordinance, Cap. 310.  The penalty provision provides for a maximum sentence on conviction of one year’s imprisonment and a Level 2 fine.  The immunity was forthcoming after Mr Egan, counsel for the applicants at trial, had raised the issue immediately in advance of Mr Peter Townsend giving evidence.  Clearly, such risk of exposure to criminal liability as Mr Peter Townsend faced in giving his anticipated testimony was of a very minor nature.

43.  As the judge stated there was a “clear dispute” between the evidence of Mr Peter Townsend and Mr Phillip Palmer on the one hand and the 1^st applicant on the other hand about the alleged written contract of employment (exhibit P9) dated 6 April 2006, said to be between OIL-UK and the 1^st applicant, page 13 of which bore the applicant’s name, a signature and a photocopy of a Hong Kong Permanent Identity card in his name.  The 1^st applicant said that he had never seen the document, let alone signed it.  Mr Phillip Palmer testified that he had witnessed the 1^st applicant sign the document in the Shenzhen office of OIL-UK after the 1^st applicant’s identity card had been photocopied onto the last and signature page.  The original copy of the contract had been kept in the Shenzhen office of OIL-UK, but had been lost after that office was closed.  Mr Phillip Palmer said that he had taken a photocopy only of the contract back to OIL-UK’s office.  That photocopy had been photocopied itself on numerous occasions.  Mr Peter Townsend testified that he had seen a photocopy of the contract and recognised the signature of the 1^st applicant.

44.  On its face the contract adverts at clause 2.1 to an ‘offer of employment’, but none was produced in evidence.  The contract did not specify the job title or salary.  Moreover, bizarrely it specified Wickford, Essex as the 1^st applicant’s normal place of work.  Not surprisingly, the judge found[10] : “The contract itself meant little without the offer letter of employment.”

45.  Mr Peter Townsend said that following the change of offices of OIL-UK, from Shenzhen to Hong Kong, and the employment of the 1^st applicant as General Manager in OIL-HK he agreed to the 1^st applicant’s requests that he be paid in Pounds Sterling and make his own MPF contributions.  As a result, he had sent the 1^st applicant a letter dated 4 May 2007 (exhibit P10) setting out those and other provisions of his continued employment.  The letter was sent with other items in the regular courier deliveries to Hong Kong.  Again, as the judge noted[11], the 1^st applicant disputed having received it.  There was no dispute that communication by letter, rather than e-mail, Skype or telephone, from Mr Townsend was unusual.  His explanation was that the communication was “official” which was why it was on company letterhead and why he had signed it.

46.  As noted earlier, the judge determined to attach no weight to either exhibit P9 or P10[12] :

“ I had serious reservations about the provenance of the purported contract, P9, and the prosecution evidence concerning the letter P10. Not only did I decide to attach no weight to these documents, I treated the evidence of PW1 and PW2 with the greatest caution.”

47.  Notwithstanding the judge’s determination to attach no weight to those two documents, he went on to find[13] :

“ There is however, in my view, a substantial volume of compelling and persuasive evidence that D1 was an employee of OIL rather than in some kind of partnership arrangement with PW1. I was also left in not the slightest doubt, taking into account all the evidence, that PW1 and PW24 had absolutely no idea that the staff of OIL-HK was marking up the prices of quotations obtained from their suppliers and that D1 and D2 were pocketing the difference.”

48.  Clearly, the judge’s reference to a “substantial volume of compelling and persuasive evidence” of the fact of the 1^st applicant’s employment by OIL-HK was, in part, to the undisputed evidence of payments made by OIL-UK to bank accounts in the name of the 1^st applicant and to e-mail communications to and from the 1^st applicant and Mr Peter Townsend and Mr Phillip Palmer.

Bank accounts and bank records

OIL-UK’s payment of ‘Wages’ to the ‘payroll account’ of the 1^st applicant

49.  As the judge noted[14], by an e-mail dated 7 May 2007, three days after the date which exhibit P10 bears, the applicant provided details to the accounts staff of OIL-UK of two bank accounts in his name to receive respectively “payroll” and “petty cash”.  Also, he sought confirmation of his salary in Pounds Sterling :

“ Below is my new payroll account, kindly re-confirm with Peter and Lynda my monthly salary will be paid in GBP at £2,500 (£30,000 per annum) with effective from May 2007.”

Clearly, the references to Peter and Lynda are to Mr and Mrs Townsend.

50.  The National Westminster Bank ‘Payment Debit Advice’ documentation  (exhibit P12), confirmed that in late May 2007 the first of the payments of £2,500 per month was made by OIL-UK to the ‘payroll account’ stipulated by the 1^st applicant in the e-mail.  That payment, and all subsequent monthly payments up to and until July 2010, was described as ‘Wages’.  There was no dispute that on dates that coincide with Lunar New Year, namely in January 2009 and January 2010, but not January 2008, the applicant received payments of double the usual monthly amount.  In cross-examination, the 1^st applicant accepted that he had been sent copies of that bank documentation every month[15]. He agreed that he had never contacted Mr Peter Townsend to correct the mis-description of the nature of those payments, which on his evidence were to defray the expenses of the office of OIL-UK in Hong Kong.

51.  Prior to May 2007, payments to the 1^st applicant, of what was described in the bank documentation as ‘Salary’, was made to a different account, in Hong Kong dollars, in the name of the applicant with the same bank in Hong Kong.

52.  There was no dispute that employees of OIL-UK in Hong Kong, including the 2^nd applicant, were paid directly by bank transfer by OIL-UK to stipulated bank accounts in their own names.  They too received double month payments at Lunar New Year.  However, in their case OIL-UK also paid monies into their respective MPFs.

53.  After the resignation of Ms Brenda Chang and the closure of the Shenzhen office in about March 2007 the 1^st applicant began to receive transfers of money from OIL-UK to the account in his name that he had stipulated as designated to receive ‘petty cash’.  That practice continued until July 2010.

54.  Of the 1^st applicant’s testimony that the monthly payments described as ‘Wages’ made by OIL-UK in Pounds Sterling to his account in Hong Kong were, “not salary payments, but were made to him for the purpose of running of the Hong Kong office, fixed costs” the judge determined[16] :

“ I could see no reason for such payments, described in bank documents as wages, should be paid into a different personal bank account. The petty cash account was a dedicated account to cover petty cash. I also noted that the other OIL-HK employees had their salaries paid by OIL-HK into their own personal bank accounts.”

55.  In the context of those payments of salary in Hong Kong dollars to the other OIL-HK employees, the judge clearly rejected the applicant’s testimony that the change to payment to him from Hong Kong dollars to Pounds Sterling was made because Mr Peter Townsend had said that it was to his tax advantage[17] :

“ I noted that if that had been the case, it would seem logical that PW1 would have requested that all salaries for the Hong Kong office be paid in pound sterling.”

56.  For his part, in cross-examination Mr Peter Townsend rejected the suggestion that paying the 1^st applicant in Sterling was to his tax advantage : payments to the 1^st applicant in Hong Kong dollars had been tax-deductible in any event[18].

57.  In fact, as the judge noted[19] the 1^st applicant admitted that he had made no declarations for tax in Hong Kong at all, notwithstanding the substantial sums of money that he had received as a result of OIL-HK’s business activities.

58.  Although Mr Peter Townsend testified[20] in cross-examination that he had no idea why the 1^st applicant suggested that for his own tax advantage he wished to be paid in Pounds Sterling and take care of his own MPF payments, he said that he was concerned that, since OIL-UK would no longer report those payments to the Hong Kong Revenue authorities, the 1^st applicant make his own tax returns in Hong Kong.  No doubt, if OIL-UK had continued to make employer’s contributions to the 1^st applicant’s MPF that is a matter that would have come to the attention of the Revenue authorities in Hong Kong, in particular if no tax return in respect of salaries or profits tax was made by the 1^st applicant.

E-mails

59.  Having noted that he had dealt with the e-mail correspondence between the 1^st applicant and OIL-UK in some detail, the judge found[21] :

“ The tone and language of this correspondence is entirely consistent with D1 being an employee of OIL-UK rather than some sort of business partner of PW1. There is no reference whatsoever to invoices in Hong Kong being marked up even in correspondence touching on issues of bonuses for Hong Kong staff.”

60.  Earlier in his Reasons for Verdict, the judge set out at length[22] an interchange between the 1^st applicant and Mr Peter Townsend arising out of the latter’s wife querying the payment of $162,000 in cash by the 1^st applicant to a Mainland supplier.  The 1^st applicant asserted in an e-mail, dated 25 January 2008, to Mr Peter Townsend that he was “pissed off” with her enquiry as to how the payment was made (exhibit P1393; exhibit bundle 2543-1).  The 1^st applicant asserted :

“ …the money you transferred to my petty cash account is not for myself, it is for payments and expenses running the office, you should know me, I do all my best effort in order to avoid any confusion and misunderstanding in using money not belong to me…

The only money belongs to me is my wages, nothing more than that.”  [Italics added.]

61.  As counsel for the respondent, Mr David Leung, pointed out in his oral submissions, in an e-mail in reply[23] Mr Peter Townsend pointed out that his wife was the Financial Director of OIL-UK and entitled to ask the question.  He went on to state :

“ We are a limited company and we have to make reports on all our financial activity. A $160 K cash payment to an employee is not normal practice and has to be accounted for correctly.” [Italics added.]

Tellingly, the description of the 1^st applicant as “an employee” did not produce any protest or refutation from the 1^st applicant.

References by the 1^st applicant to Mr Peter Townsend as “boss” and “employer”

62.  As the judge noted[24], contrary to the 1^st applicant’s assertion that Mr Peter Townsend was his partner in the Hong Kong office, he had referred to him in other e-mails as his “boss and employer”.  In the context of the apparent dispute that ensued after the 1^st applicant had stopped payment to a Mainland supplier of a cheque drawn on his personal account on the advice of Mr Peter Townsend, the applicant asserted in an e-mail dated 4 September 2008[25] :

“ I issued a personal cheque to pay for the goods, but I stopped the cheque right after the goods have been released to you, I cannot get away from my personal responsibility that I am intending to be cheating, even though my employer telling me to do this and that. Sorry if I did not make myself very clear, but every of my friends look stupid that I follow your instructions to negotiate for discount, to pay the supplier, to stop and check, and to refund back the money to you, just because you are my boss.” [Italics added.]

63.  In an e-mail dated 20 July 2010[26], the applicant raised an issue as to whether or not he should book an inspection date, of which enquiry he said :

“ ONE MORE THING NEED THE BOSS TO DECIDE.”

64.  In an e-mail dated June 2010[27] the 1^st applicant raised with Mr Peter Townsend the question of when the staff in OIL-HK would receive a promised bonus.  For his own part, the 1^st applicant said :

“ I did not ask or beg for bonus, you know me. I accept whatever you offer, although I’m good at bargain but not for you.”

The 1^st applicant concluded the e-mail by stating :

“ The last I want to ask from you, please don’t ask me to pay the company expenses from my pocket from now on….... please ensure enough funds being transferred by the end of each month to cover the expenses of the following month.”

65.  Obviously, the judge was entitled to determine, as he did, that the 1^st applicant’s tone was[28] :

“ entirely inconsistent with D1’s assertion that he was a partner of PW1 or that they were involved in some sort of joint venture in so far as the Hong Kong office was concerned.”

Letters relevant to the employment status of the 1^st applicant

66.  Although it was submitted that the judge failed to have proper regard to the evidence of assertions made by or on behalf of Mr Peter Townsend in respect of the status of the 1^st applicant vis à vis OIL-UK in letters to the ICAC (exhibit D2) and to CO Chan & Co (exhibit D4), it is clear that the judge considered them carefully before coming to his ultimate conclusion that the 1^st applicant was an employee of OIL-UK at all material times.

Mr Peter Townsend’s letter to ICAC : 10 June 2010

67.  As the judge noted[29], Mr Peter Townsend accepted that an assertion made in a letter signed by him to an officer of ICAC, sent by fax cover sheet dated 10 June 2010, was inaccurate in its description of the 1^st applicant.  As was stated in the text of the letter, the purpose of the communication was to summarise the situation allegedly uncovered in the OIL-HK office following the supply of information and material from an anonymous source.  Under the rubric ‘Implicated HK Employees’ three employees were named, the 1^st and 2^nd applicants and Mr Daniel Yeung. The 1^st applicant was described as the office manager, of whom it was stated[30] :

“ Initially employed by Promo International, after several years of employment requested that he become self-employed.

Paid monthly from the UK by us.”

Having described the 2^nd applicant and Mr Daniel Yeung, the letter asserted that, although two other merchandisers were employed by the company, they had started their employment recently and were not implicated in the corruption.

68.  However, as the judge went on to note[31], in the context of Mr Peter Townsend’s evidence that he had not drafted the letter, rather it had been drafted by an employee, and that he had not focused on the inaccurate assertion that the 1^st applicant had requested to become self-employed, in any event the inaccuracy was immediately contradicted by a subsequent passage in the letter.  Under the rubric ‘Allegations’ the letter asserted :

“ We have several e-mails from the accused staff to suppliers where they describe us - Promo International - as their client or customer. The impression they wish to give is that they are operating as an agent, and therefore entitled to the commission payments they are requesting.

This is NOT, and never has been the case.  There is, therefore, absolutely no legitimate reason for these suppliers to be transferring money to personal bank accounts of our employees, nor any legitimate reason for them to make the requests in the first place.”

69.  In any event, it is to be noted that the letter does not assert that the 1^st applicant was self-employed.  Rather, it asserts that a request was made in that respect. Moreover, as the judge noted, the suggestion that the letter had acknowledged that the 1^st applicant ever enjoyed that status is immediately refuted by the following paragraph.

The letter to CO Chan & Co : 5 December 2008

70.  The judge noted[32] that Mr Peter Townsend accepted that the letter of 5 December 2008 written by his solicitors in Chelmsford, Nigel Broadhead Maynard, to CO Chan & Co described the 1^st applicant inaccurately as OIL-UK’s “agent”.  The letter was written in response to their demand of the 1^st applicant for payment of monies due to Aesthetics Prototype Limited (“APL”) for goods sold to OIL-UK, in respect of which the 1^st applicant’s had stopped his cheque for payment of the monies due.  The letter had been written in haste in an attempt to protect the 1^st applicant from assault and intimidation in relation to the matter.  The judge acknowledged[33] that the defence relied on the description of the 1^st applicant as an “agent” as pointing to the fact that was the status, rather than that of employee, that the 1^st applicant enjoyed with OIL-UK.

Conclusion

71.  Clearly, the judge had considered such evidence as there was that contradicted or undermined the crucial evidence of Mr Peter Townsend that the applicant was an employee of OIL-UK.  Equally, he had considered the overwhelming amount of evidence pointed to the fact that the applicant was an employee of OIL-UK.  His description of that evidence as “compelling and persuasive” was entirely apposite.

Ground 2

72.  The complaint made on behalf of the 1^st applicant, that the judge was in error to describe the personal cheque drawn by the 1^st applicant in favour of APL as having been drawn on the “petty cash” account in the name of the 1^st applicant was justified.  The judge was in error.  The cheque was drawn on the 1^st applicant’s personal account into which his wages were paid by OIL-UK.  Understandably, Mr Grossman stated in his written submissions that no further submission was made on this ground, which stance he took in oral submissions.  Whilst it was an error it was of no significance whatsoever.  Mr Grossman took a similar stance in respect of the complaint that the judge was wrong to determine[34] that the 1^st applicant had kept no proper accounting records.  He was right to do so.  Such records as the 1^st applicant kept were entirely consistent with not making any declaration at all to the Revenue.

Ground 3

73.  By ground 3, it was submitted that the judge had erred in permitting the prosecution to add 21 substantive charges of fraud immediately before it closed its case.

74.  Clearly, the purpose of the prosecution making the application was so that there was an alternative set of charges to reflect the alleged misconduct of the applicants in the event that the judge acceded to the anticipated submission on behalf of the applicants that there was ‘no case to answer’ on Charge 16.  That charge alleged a conspiracy to defraud, in which the alleged parties were the 1^st and 2^nd applicants together with Mr Daniel Yeung.  In his testimony, Mr Daniel Yeung denied being a party to such a conspiracy.

75.  In his ruling[35] allowing the addition of 21 substantive charges of fraud the judge described the nature and ambit of the conspiracy alleged in Charge 16 ：

“ In relation to charge 16, the conspiracy charge is predicated on the basis that during the relevant period D1 and D2, were together with PW4, parties to an arrangement whereby the prices set out in invoices submitted by 21 suppliers were inflated and those invoices at the inflated prices were sent to OIL in the United Kingdom who paid the full inflated price to the suppliers. Thereafter, arrangements were made whereby the amounts by which the prices had been inflated were paid back to OIL in Hong Kong, usually by being paid into the private bank account of the 2^nd defendant.”

76.  Having noted that the prosecution submitted that, even if the court ruled that there was no case to answer in respect of Charge 16, there remained prime facie evidence that the applicants were parties to the underlying fraudulent transactions, the judge went on to describe the nature of the objection made on behalf of the applicants :

“ In broad terms, it is submitted that the defendants would be denied the acquittal to which they are entitled on charge 16. The application comes far too late. The defence case has been prepared all along on the basis that the criminality alleged in charge 16 was a charge of conspiracy. The defence have been deprived of the opportunity to mount their defence as they would have done had the prosecution case been put in the way the prosecution now intend to put its case.”

77.  Of the prosecution response to the objection taken by the defence, the judge noted :

“ The prosecutor submits that the underlying criminality alleged in charge 16 has not changed. It is based on the defendants being involved in an arrangement to inflate prices contained in invoices provided by 21 suppliers. These inflated prices would then be paid to the suppliers who would then be instructed by or on behalf of D1 to remit the excess to the personal bank account of D2 or some other person. The fact that such prices were inflated is not in dispute.

The defence case from the start of the trial has been that D1 was neither an agent nor employee of the UK company and what the defendant did was neither dishonest nor illegal.  It is submitted that the defendants were well aware of the nature and extent of the evidence against them and any prejudice would be overcome by allowing the defendants an adjournment to allow defence counsel to take instructions and consider its position on the amended indictment by allowing the recall of any witnesses who had given evidence.”

78.  In the result, the judge ruled :

“ I have considered very carefully all the submissions made and the authorities submitted. I have considered all the circumstances of the case including the merits of the case. I consider this to be an appropriate case to exercise my discretion so as to accede to the prosecution application. I take the view that the amendments can be made without injustice.”

79.  There is no dispute that, after the applicants had been re-arraigned, no application was made on their behalf for an adjournment, the recall of any of the prosecution witnesses for further cross-examination or for a withdrawal of any of the admissions made by the applicants in the Admitted Facts.  Counsel for the applicants took the stance in the knowledge that the court had indicated[36] that it would accommodate any such applications.

80.  In all the circumstances, we are satisfied that the judge was within his discretion to permit the addition of the 21 substantive charges fraud.  No injustice enured to the applicants.

Conclusion

81.  In the result, we are satisfied that there are no merits in any of the grounds of appeal against conviction advanced on behalf on the 1^st applicant.

The 2^nd applicant

82.  In respect of the issues taken with the judge’s findings that the 2^nd applicant knew that the 1^st applicant was an employee of OIL-UK and that, as such, he did not have the authority to authorise her to receive money by way of commission or otherwise from Mainland suppliers who manufactured goods for OIL-UK, their relationship and working experience was clearly relevant.

83.  The 1^st applicant testified that he had known the 2^nd applicant since 2001, at which time she was working as a merchandiser.  They were married in 2004.  On 1 August 2007, she began working as a merchandiser in the offices of OIL-HK in Sheung Shui at a salary of $21,000 per month, which was paid directly into her bank account by OIL-UK.  Immediately prior to that she had been working for less than a year as a senior merchandiser at RT Sourcing, which the 1^st applicant described as, “a quite big European trading company located in Hong Kong.”  Then, her salary was $26,000 per month.

84.  As the judge noted[37] the 2^nd applicant had graduated from Hong Kong Polytechnic with a degree in engineering and had been a merchandiser for over 10 years.

85.  No issue was taken with the judge’s finding[38] that the 2^nd applicant had an e-mail account at OIL-HK for some months prior to becoming an employee of OIL-UK or that she received payments into her bank account from suppliers of OIL-HK before she became an employee of the company.  Some of those payments related to orders placed when the 1^st applicant was working in the offices of OIL-UK in Shenzhen.  Similarly, no issue was taken with the judge’s findings[39] that throughout the period of the charges the 2^nd applicant had received very large sums of money deposited into her bank account on a regular basis by “mainland suppliers of OIL-UK” or that “she knew the source of this money”.

86.  As the judge noted[40] the 2^nd applicant had negotiated the inflation of prices stipulated in invoices provided by Macro Development and Macro Union and received payments in cash on a number of occasions from Mr Joe Chan Wai Chung, being monies that represented commission and price inflation on goods manufactured for OIL-UK by Macro Development and Macro Union.

87.  Obviously, and not surprisingly the 2^nd applicant was intimately involved with the business activities of the 1^st applicant in particular the negotiation for commissions and price inflated invoices and the receipt of those monies.  Having rejected the 1^st applicant’s evidence that he enjoyed some form of loose partnership with OIL-UK, rather than being their employee it is hardly surprising that, in all the circumstances, the judge rejected his evidence in so far as it touched on the state of knowledge of the 2^nd applicant or that he had authorised her to receive the commissions or monies connected with the inflated invoices.

The judge’s reference to the 2^nd applicant’s notebook

88.  On behalf of the 2^nd applicant issue is taken with the judge’s determination of what he described as the “personal notebook”[41] of the 2^nd applicant as containing a letter that she had drafted.  From that determination, the judge went on to find that the draft letter was :

“ …entirely inconsistent with any contention that D2 might have thought or ever been told that P1 (Mr Peter Townsend) and D1 were partners in some sort of joint-venture”

89.  Clearly, the judge was entitled to find that the notebook was the “personal notebook” of the 2^nd applicant. It bore her name, ‘BOWIE CHAU’ and had been found in her desk at the offices of OIL-HK on the day of her arrest.  No issue was taken with the evidence of Ms Carina Wong, a fellow merchandiser and employee of OIL-UK, of the identification of writing in the book as being that of the 2^nd applicant. Moreover, as the text of the draft letter makes clear, the information there described resonates with the circumstances of the 2^nd applicant[42] :

“ During my three years with this company I feel I have carried out my duty conscientiously and I have recently acquired additional responsibilities. I feel that my qualification and the nature of my work justify a higher salary and have already being offered a similar position with another company at a salary of 25K per annum. My present duties are interesting and I thoroughly enjoy my work. Although I have no wish to leave the company, I cannot afford to turn down the present offer unless some improvement in my salary can be arranged.

I hope a salary increase will be possible.  Otherwise I feel my only course will be to accept the offer made of me.”

90.  As the judge noted[43], having been employed by OIL-UK on 1 August 2007, the summer of 2010 represented a period of about three years employment with OIL-UK.  Throughout her employment the 2^nd applicant had been paid wages of $21,000 per months, so that a salary of $25,000 per month represented a higher salary.

91.  Clearly, the judge was entitled to have regard to the draft as being wholly inconsistent with any belief in the 2^nd applicant that her husband, the 1^st applicant, was her employer and in some form of joint-venture, loose partnership with Mr Peter Townsend.  The draft was not a letter between wife and husband, but it was consistent with 2^nd applicant writing to her employer, Mr Peter Townsend.  Earlier, the judge had rejected the evidence of the 1^st applicant that the employees of OIL-HK were his employees as being, “clearly at odds with the evidence”[44].

92.  The judge’s reference to e-mail correspondence in June 2010 between the 1^st applicant and Mr Peter Townsend in which the subject of the failure of OIL-UK to pay employees, including 2^nd applicant, promised bonuses was no more than a reference to the fact that there was other evidence that was consistent with the issue of employee remuneration being live at that point in time.  The judge did not suggest in any way that the 2^nd applicant was a party to or aware of that correspondence.

Charges 17, 18 (alternative to Charges 1 and 2) and 6

93.  In his written submissions Mr Selwyn Yu accepted that the 2^nd applicant had allowed her bank account to be used to receive payments of monies from Mr Yuan of Mega Handbag.  Banking documentation evidenced receipt into the 2^nd applicant’s bank account of monies from Mr Mega Handbag related to Charge 17 and Charge 18 on 14 May and 3 July 2007 respectively.  Issue was taken with Mr Yuan’s evidence that the 2^nd applicant had participated in discussions he had with 1^st applicant in respect of the inflation of invoices provided by Mega Handbag to OIL-UK.

94.  The judge made it clear that he was aware that Mr Yuan was a witness testifying under immunity from prosecution[45], a category of witnesses he had indicated he treated with the “utmost caution”[46]. Furthermore, he noted that Mr Yuan accepted in his testimony that his out-of-court statement to the ICAC made no mention of having had such discussions with the 2^nd applicant[47]. In his evidence, Mr Yuan explained that omission on the basis that the statement-taker had not asked him[48].

95.  The judge acknowledged that there was a conflict between the testimony of the 1^st applicant[49] and that of Mr Yuan[50] in respect of whether or not the 2^nd applicant had played any role in relation to orders placed by OIL-UK with Mega Handbag prior to commencing employment with the former in August 2007 and whether the three of them had met in Shenzhen.

96.  There is force in Mr Yu’s submission that there was considerable uncertainty in Mr Yuan’s evidence as to where he had met the 2^nd applicant for the first time.  In evidence in chief, he testified that it was in his own office in Shenzhen, but immediately contradicted that by saying that he supposed it was at the offices of OIL-UK in Shenzhen, but concluded by saying that he did not recall.

97.  In cross-examination, he said that the issue of paying commission on the value of orders placed by OIL-UK had been discussed “before doing business”[51]. Similarly, he said that the issue of inflating prices had been discussed “before doing business”[52]. Mr Yuan went on to say that the 2^nd applicant provided him with the inflated price on each and every occasion[53]. By contrast, he said that the matter of commission was only discussed on the first occasion[54].

98.  Later in cross-examination, Mr Yuan said that he was sure that the discussion in respect of commission had taken place in Shenzhen before the office of OIL-UK in Shenzhen was closed and before any of the orders were placed with Mega Handbag.  Then, he said that he was not sure if the 2^nd applicant was present[55]. Finally, he added that before the 2^nd applicant had joined OIL-UK he had a meal with the two of them over which they had chatted.

99.  Notwithstanding the vacillations in the evidence of Mr Yuan, it is clear, as he was entitled to do, that the judge had regard to the evidence overall in making his determination that the 2^nd applicant had been involved from the outset in the arrangement by which Mega Handbag’s invoices were inflated.  Of the arrangement with Mr Yuan, the judge found[56] :

“ I have no doubt that his arrangement started before OIL closed down its Shenzhen operation and moved to Hong Kong. The purchase orders P23/159, P24/163 are dated 6 and 7 March 2007 respectively. I was sure the prices on the invoices had been inflated at the request of D1 and D2 and that the surplus was paid into the bank account of D2. The dates in the purchase orders are before the opening of the HK office.”

100.  We are satisfied that there are no merits in any of the grounds of appeal against conviction advanced on behalf of the 2^nd applicant.

CONCLUSION

101.  For the reasons which we have given, we are satisfied that there are no merits in any of the grounds of appeal against conviction advanced on behalf of the 1^st and 2^nd applicants.  Accordingly, the applications for leave to appeal against conviction are refused.

[1] Reasons for Verdict, paragraph 183.

[2] Reasons for Verdict, paragraph 185.

[3] Reasons for Verdict, paragraph 87.

[4] Reasons for Verdict, paragraph 197.

[5] Reasons for Verdict, paragraph 185.

[6] Reasons for Verdict, paragraph 218.

[7] Reasons for Verdict, paragraph 38.

[8] Reasons for Verdict, paragraph 25.

[9] Appendix to the Reasons for Verdict, ‘Summary of the Evidence’, paragraph 1.

[10] Reasons for Verdict, paragraph 48.

[11] Reasons for Verdict, paragraph 51.

[12] Reasons for Verdict, paragraph 183.

[13] Reasons for Verdict, paragraph 185.

[14] Reasons for Verdict, paragraph 51.

[15] Appeal Bundle, page 654-5.

[16] Reasons for Verdict, paragraph 52.

[17] Reasons for Verdict, paragraph 63.

[18] Appeal Bundle, page 480 F-G.

[19] Reasons for Verdict, paragraph 177.

[20] Transcript page 108.

[21] Reasons for Verdict, paragraph 192.

[22] Reasons for Verdict, paragraphs 67-72.

[23] Exhibit bundle 2543/2.

[24] Reasons for Verdict, paragraph 80.

[25] Exhibit P1393; Exhibit Bundle 2542.

[26] Exhibit P1389; Exhibit Bundle 2538/1.

[27] Exhibit P1392; Exhibit Bundle 2541.

[28] Reasons for Verdict paragraph 83.

[29] Reasons for Verdict-Summary of Evidence, paragraph 28.

[30] Exhibit D2.

[31] Reasons for Verdict, paragraph 112.

[32] Reasons for Verdict-summary of evidence, paragraph 32.

[33] Reasons for Verdict, paragraphs 94 and 108.

[34] Reasons for Verdict, paragraph 193.

[35] Appeal Bundle, pages 559-560.

[36] Appeal Bundle, pages 538 and 550.

[37] Reasons for Verdict, paragraph 199.

[38] Reasons for Verdict, paragraph 201.

[39] Reasons for Verdict, paragraph 205.

[40] Reasons for Verdict, paragraph 206.

[41] Reasons for Verdict, paragraph 210.

[42] Reasons for Verdict, paragraph 213.

[43] Reasons for Verdict, paragraph 214.

[44] Reasons for Verdict, paragraph 197.

[45] Reasons for Verdict, paragraph 141.

[46] Reasons for Verdict, paragraph 25.

[47] Reasons for Verdict, paragraph 144.

[48] Appeal Bundle, page 301 R.

[49] Reasons for the verdict-summary of evidence, paragraph 192.

[50] Reasons for Verdict, paragraph 141.

[51] Appeal Bundle, page 300 B.

[52] Appeal Bundle, page 300 M.

[53] Appeal Bundle, page 300 1J; Page 313 D.

[54] Appeal Bundle, page 313B.

[55] Appeal Bundle, page 314 H-K.

[56] Reasons for Verdict, paragraph 149.