THE QUEEN v. TANG YEE CHUN

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant was convicted after trial before Barnes J. and a jury of 22 counts of false accounting. On arraignment his co-accused, Chan Wai-king ("Rita Chan"), pleaded guilty to all counts and subsequently testified on his behalf at the trial.

2. The case for the Crown was that the applicant had been responsible for the setting up in April 1980 of a deposit taking company named America and Panama Finance Co. Ltd. ("A&P") whose object it was to perpetrate a fraud on the public. In an effort to make it appear that he was not connected with A&P the applicant arranged that his name did not appear on any of the documents necessary for its formation and registration as a deposit taking company.

3. Due to the requirements of the legislation regulating deposit taking companies it was necessary that a sum of $2.5m be injected into A&P as paid up capital. The funds for this came from the applicant's accounts in two different banks. After it had been paid into A&P's bank account all but $100,000 was withdrawn and paid into a fixed deposit account in the applicant's name on the following day. False entries were made in the books of A&P to make it appear that the $2.4m had been lent to five borrowers.

4. Later an amendment to the law required that the paid up capital be increased to $5m. This was met by funds from the applicant's personal banking accounts which, having been paid into A&P's bank account, were repaid to the applicant's account on the following day by a series of false book entries. Later again the statutory amount was increased to $10m. Again it was met with funds from the applicant's personal bank accounts. A further sum of almost $3.8m also passed from the applicant's personal bank account in payment of the deposit on the purchase of premises in United Centre.

5. On the occasion of each of the first two injections of capital the applicant was present in Hong Kong. The third injection of capital occurred on 31st March 1981. There was evidence that the applicant had left Hong Kong two days later on 2 April, out none as to the date of his previous arrival in Hong Kong.

6. The principal witnesses on whom the prosecution relied were Agnes Kwok, Eva Hui and Winnie Wong, all of whom had been employed by the applicant in companies run by him prior to the establishment of A&P. Only the first two of these witnesses were employed in A&P. It was not in dispute that they were accomplices and had been given immunity from prosecution conditional on their giving full and true evidence. Winnie Wong was not given an immunity. She was presented by the prosecution as not being an accomplice. However, there was evidence which emerged in the examination in chief of another prosecution witness, Fung Wing-yee, that she had seen Winnie Wong sign the name Judy Chen. As this name was connected with the alleged illegal activities of A&P the defence contended that Winnie Wong was also an accomplice. The judge left the question of accomplice vel non to the jury.

7. It was common ground that the documents specified in each count in the indictment were false and that the issue for the jury, as the judge expressed it to them, was whether the prosecution had proved that the applicant was the person running A&P and had organised the production of those false documents. It was also accepted that all counts stood or fell together.

8. Agnes Kwok was the first of the three major prosecution witnesses. She testified that the applicant appointed her as a director of A&P in 1980 and as chief executive in 1982. He gave all the directions and made the final decisions in all matters concerning the company. In July 1981 A&P moved office to premises known as Unit A on 22nd floor of United Centre. Apart from A&P's office the premises housed the office of the Haitian Consulate - the applicant being the honorary consul for the Republic of Haiti - the office of a travel agency controlled by the applicant and that of the bank he was preparing to establish in Philadelphia. All of these entities had their own separate staff, but the higher level staff members were interchangeable. The applicant was the ultimate decision maker in respect of each entity.

9. The United Centre premises were acquired by A&P at the instructions of the applicant. He told Agnes Kwok that he wished to form another deposit taking company in addition to the Luxembourg Finance Company which he already controlled. He explained that since he was about to establish a bank, it would downgrade his status if it were to be known that the new deposit taking company was registered in his name. Furthermore, if anything went wrong he would be able to assist behind the scene.

10. The applicant was a frequent traveller to the United Kingdom, the United States and Singapore where he had other business interests. When he was absent he would contact Hong Kong at least once or twice daily to equire about the turnover of the business being done by A&P and the state of its bank account. He would also decide the daily interest rates to be offered to investors in A&P. He would do this on the basis of information given to him by Rita Chan who, as Chief Accountant for A&P, Luxembourg Finance Company and the Haitian Consulate, was responsible for the accounts of all three entities. In order to attract investors these interest rates were set above those offered to customers by other finance companies.

11. The applicant's wife was directly concerned with the ticketing in the applicant's travel agency. Nonetheless she was provided with the daily bank account figure for A&P. Rita Chan prepared and supplied to the applicant and his wife daily financial reports for each of the entities. The report relating to A&P contained information as to the state of its bank account, particulars of any new deposits and a reference to the total amount of deposits due to depositors. The applicant's copy was sent to him daily by telex when he was absent from Hong Kong on overseas visits. When he finally left Hong Kong in about September or October of 1981 to set up a bank in the United States, these telexes were normally sent to him every Monday, Wednesday and Friday.

12. Prior to his final departure to the United States he held morning staff conferences almost daily with his senior staff to discuss matters concerning those companies. After his departure the senior staff continued to hold daily meetings at which they considered what matters would be referred to the applicant for his decision when he telephoned Hong Kong later in the day. For example they would decide which account needed funds and he would give instructions as to what fictional loans or repayments of loans should be made.

13. Agnes Kwok also testified that after she had informed the applicant that a representative of the Commissioner of Banking would be coming to inspect A&P 's books, he directed her to type the minutes of a meeting dated 9 May 1980 which had not taken place. The minutes purported to approve a resolution that a credit line of $2m be granted to each of five named persons on the security of leases and at a rate of interest of 12% over the prevailing bank prime rate. In reality no loans had been made to any of those five persons; instead the money had been withdrawn for use by the applicant in his other businesses.

14. When examiners were sent by the Commissioner of Banking on 26 April 1982 to look into the books and records of A&P the applicant directed that bogus loan files be prepared in order to satisfy them that secured loans had been made. The preparation of these files was carried out over a period of several days after normal office hours when the examiners were absent. The applicant also directed that the bogus loan accounts that had been used to funnel funds to him should be closed so that he would no longer be involved. The documents concocted for the purpose of these exercises formed the subject matter of various counts in the indictment. Agnes Kwok was actively engaged in the fabrication of these files but everything she did was done on the instructions of the applicant.

15. Before his departure for the United States in September or October 1981 the advertisements relating to interest rates offered to depositors were prepared by the applicant. A Mr. Au of the Wah Kiu Yat Pao newspaper was then asked to collect the advertisement. It would be circulated by him to other newspapers.

16. In September 1982, when she visited New York at the applicant's request, Agnes Kwok told the applicant of the result of the inspections conducted by the Commissioner of Banking. When she showed him the advertisements A&P has been inserting in the newspaper, he instructed her to maintain the advertising campaign in order to attract more depositors. He also directed her to ensure that A&P continued to offer higher interest rates than those offered by other companies. After she told him that A&P was paying about $500,000 monthly to the Po Sang Bank and that the company was encountering difficulty in meeting these payments owing to the fact that A&P was receiving few deposits, the applicant told her to see whether anyone would be interested in buying the company's licence and the United Centre premises. As a result of this instruction she put the matter in the hands of a broker. However, all attempts to dispose of these assets failed, and in 1983 A&P went into liquidation.

17. As to the company's account with the Po Sang Bank, minutes of a fictitious meeting, said to have been held on 25 April 1981 and with Agnes Kwok presiding, disclosed that there had been a resolution that A&P should open an account with the Po Sang Bank and that cheques drawn on the account were to be signed either by the applicant alone or by Agnes Kwok and Rita Chan jointly. It was on the basis of this bogus resolution that an account with the bank was opened. Again it was the applicant who decided that this arrangement should be carried into effect.

18. The witness Eva Hui testified that in 1972 she began working in the applicant's travel agency in Hong Kong, that she was transferred to the Singapore branch of that company in 1974 and was sent to London by the applicant in 1976 to establish another travel agency there.

19. In October 1981 the applicant recalled her to Hong Kong to solve a taxation problem that had arisen. By that time he had already left Hong Kong for the United States. On her return Eva Hui worked in the office of A&P at United Centre and resided at a flat in Homantin provided by the applicant for her, Rita Chan and another member of the staff, Tammy Lam.

20. Normally the applicant would telephone the flat from the United States twice daily, once in the morning and once at about 10 O'clock in the evening. Eva Hui and Rita Chan both participated in these telephone conversations, one speaking over the main line and the other over an extension line. The reason for this arrangement was that the applicant wanted to ensure that his instructions were not misinterpreted.

21. In the course of these calls he discussed the business of both A&P and the travel agency. The two women would inform him of the current interest rates set by other companies, and he would then fix the rate to be offered by A&P and advertised in the newspaper. After the morning call Eva Hui, Agnes Kwok, Rita Chan, Tammy Lam and another A&P employee, Ng Yuet-wah, would hold at least one meeting in the office to discuss matters that had been raised by the applicant during the earlier telephone call. No decisions as to interest rates or policy matters pertaining to A&P could be made without reference to the applicant for his approval.

22. It sometimes happened that the applicant telephoned the office. However, on these occasions he would not discuss confidential matters as he feared that the telephone line might be tapped.

23. The taxation problem the applicant had recalled Eva Hui from London to solve for him arose out of an assessment by the Inland Revenue Department of his income at nearly $100m on which tax in the amount of about $15m was payable. For her to be able to deal with the problem effectively it became necessary for the applicant to explain to her that money that had been falsely entered in the books of A&P as loans to five borrowers had in fact been transferred from A&P to either his own personal account or that of his holding company.

24. During the course of one of the three way telephone conversations the creation of bogus loan files was discussed. She learned that bearer cheques which purported to represent loans made to the non-existent borrowers had been endorsed to the applicant's two accounts. The applicant scolded Rita Chan for having been so clumsy and instructed the two women to make up complete loan files in order to satisfy the authorities that the fictional transactions were genuine. This would require the completion of a lease agreement, a power of attorney, a promissory note and an authorisation form. He explained to Eva Hui that the money that had purportedly been lent to borrowers but in fact had been directed into his personal account or that of his nominee company had been used by him to fund his other investments. The false documents for the loan files were prepared by Agnes kwok and Rita Chan and they signed the names of the bogus borrowers. It was Eva Hui's responsibility to check their work for flaws. These documents were then sent to the applicant care of Regent Travel Company in the United States so that they could be authenticated by a notary public in order to give them the appearance of genuineness. The applicant's mistress, Aminah Low, signed in New York as the representative of the landlord of the leasehold property purportedly forming the security for each loan.

25. The applicant also instructed Eva Hui to try and sell the United Centre property and some shops that A&P had bought in Worldwide House. She was also to look for someone to buy the deposit taking company licences that attached to Luxembourg Finance Company and A&P. In the event, she succeeded in selling only one of the properties.

26. During this period she sent telexes daily to a company called Regent Finance in New York for onward transmission to the applicant. These contained details of A&P's business and, in particular, the number of new depositors, the extent of withdrawals of deposits and the interest rates offered by other deposit taking companies and banks. They also contained information as to the progress of the travel agency business.

27. Apart from perhaps one or two very small loans to borrowers no genuine loans were made from money deposited with A&P. After the purchase of the United Centre premises these funds were used to pay the huge instalments of interest due to the bank on the mortgage on those premises.

28. In November 1981 it became necessary to sign a document relating to the sale of the property that Eva Hui had managed to dispose of. Agnes Kowk was the only director of A&P at that time, and since the memorandum and articles of association stipulated that the signature of two directors was necessary on such a document, the applicant gave instructions that HO Man-ying, a staff member of the travel agency, be appointed as a director in order to overcome this difficulty.

29. When the applicant was asked what should be done if the examiners from the office of the Commissioner of Banking indicated that they wanted to meet the alleged five borrowers of the fictitious loans, he assured Eva Hui and Rita Chan that as these persons were either ex employees, their relatives or his own relatives he would be able to call upon them to help him out.

30. At his direction the five fictitious loans were "repaid" by replacing them with three new fictitious loans to persons named by him. The files of the five "borrowers" were thus closed off and the applicant was no longer involved. He asked Agnes Kwok to supply an address in Australia and for Eva Hui to provide that of her aunt in Taiwan as addresses for the bogus borrowers, so that when the official liquidator took over on the likely collapse of A&P owing to its inability to maintain payments of interest to the bank, there would be genuine addresses to which he could send correspondence. Furthermore, in order that the applicant would not be associated with any new "loans" he directed that matters be so arranged that there was no connection between the withdrawal of depositors' funds and his bank accounts.

31. The third major witness for the prosecution was Winnie Wong. She had worked for the applicant for 15 years in several of his companies, but not in A&P. However, she was present at one of his staff meetings when he announced that he intended to set up A&P. After its formation, but prior to his departure from Hong Kong for the United States, she heard him discussing the rates of interest that should be offered to depositors. These were set at about a half a percent above those offered by competitors. When he was absent from Hong Kong on his various trips abroad before finally leaving for the United States, he was sent daily telexes concerning the financial position of A&P and his other companies. All decisions relating to A&P were made by him. No one else was empowered to make any decision without his direction.

32. In mid 1982 Winnie Wong went to New York to work for the applicant in Regent Travel Services. There she saw telexes from Hong Kong to the applicant giving particulars of the volume of business and number of depositors in A&P.

33. She was also able to identify the applicant's initials on a cheque drawn on A&P's account and made out to him in the sum of $130,000. This was a document that related to count 2. She also identified a signature in the memorandum and articles of association of A&P which purported to be that of a Judy Chen as subscriber to one of the two shares taken in the company, but which in reality was a signature written by the applicant's wife.

34. The defence case was that at the time when A&P was set up the applicant was planning to terminate his business interests in  Hong Kong and leave for the United States. He took no part in the formation of the company and was not a director, a shareholder or an office bearer. It was formed by Agnes Kwok and Rita Chan for their own purposes. The applicant had simply indicated that in recognition of their past services to him he was prepared to render his advice and assistance to them. Because he was frequently abroad and trusted them he had a long standing practice of signing in blank and leaving in their custody cheques and applications for cashier orders in respect of his personal accounts. He did not authorise them to use his funds to inject capital  into A&P. Nor did he play any part in placing advertisements for A&P or in fixing the interest rates for depositors funds. The falsification of loan files and other documents and the creation of fictitious borrowers was done completely without his knowledge. However, in order to assist both women he became involved in the purchase of the premises at United Centre by agreeing that he should guarantee repayment of the mortgage.

35. Lord Hoosen, who appeared for the applicant in this court but not in the court below, frankly accepted that the following facts on which the prosecution relied were not in issue:

36. He contended, however, that because these matters were not in dispute they were incapable of amounting to corroboration of the evidence of the accomplices and Winnie Wong that the applicant was the person running A&P and responsible for the false accounting. The authority for the proposition that evidence consistent with the defence case cannot amount to corroboration is said to be Hills (1988) 86 Cr. App. R. 26 where Lord Lane said at p.31:

37. The following is the passage in the summing up in which the judge referred to those facts now accepted by Lord Hoosen as being uncontested and directed the jury that they were capable of amounting to corroboration:

(1)	the evidence from sources other than KWOK, HUI and WONG that he negotiated the purchase of the premises in the United Centre;
(2)	the evidence from sources other than KWOK, HUI and WONG that that transaction was the only major legitimate commercial transaction conducted on behalf of A&P during the period from its formation to its winding-up in early 1983;
(3)	the evidence from sources other than KWOK, HUI and WONG that A&P was run from premises from which the defendant also ran other businesses and served as the Haitian Consulate of which he was Honorary Consul;
(4)	the evidence from sources other than KWOK, HUI and WONG that he paid the deposit for the United Centre premises Prom his personal account;
(5)	the evidence from himself that he acted as personal guarantor in order to obtain funds for the purchase of the United Centre premises, not funds for himself but funds for the purpose of purchasing the United Centre premises;
(6)	the evidence from sources other than KWOK, HUI and WONG that he received telexes and telephone calls relating to A&P both before and after emigrating to the United States;
(7)	the banking evidence that the bank mandate given when the A&P account was opened in April 1981 with the Po Sang Bank enabled the defendant to operate the account singly, whereas others could only operate jointly with another.
If you accept that evidence and it leads you to conclude that it is consistent with no other inference than that he was in overall control, then that is evidence capable of pointing to his complicity in the commission of these offences because it's evidence capable of supporting the inference that the offences couldn't have been committed unless he authorized and approved it.   Finally, there is this in relation to all charges. If you conclude that the defendant has lied to you on this question of whether he was the person in overall control of A&P, then the fact that he lied  in that way  is also capable of confirming that tainted evidence regarding his complicity."

38. Lord Hoosen contended that since items (1), (2) and (3) relating to count 1, items (1) and (4) relating to counts 2 to 6 and items (1), (2), (3), (5) and (7) relating to the remaining counts were all consistent with the defence case, they failed to meet Lord Lane's requirement 3(b) in Hills and were therefore incapable of amounting to corroboration of the evidence of the accomplices. In making this submission Lord Hoosen placed particular reliance on the words "having regard to what is in issue" in the passage we have quoted from Hills.

39. We are unable to detect anything in the judgment delivered by Lord Lane that supports Lord Hoosen's contention. As Lord Hoosen himself was at pains to emphasise, "the real or central issue was whether the applicant was the person running A&P and organising the production of the false document upon which each charge depended". This was a paraphrasing of the judges own words:

"And that bring us to what is, for all practical purposes, the real issue in this case: Has it been proved that the defendant either gave instructions for the particular false entry to be made or concurred in the making of it by authorizing and approving of its being done, and that in turn really means: Has it been proved that he was the person running A&P and organizing the production of the false document in each case."

In our view the items of evidence to which the judge referred were plainly relevant to this central issue.

40. There is abundant authority in various Commonwealth jurisdictions that for evidence to be capable of amounting to corroboration it is not necessary that it must relate to the part or parts of the accomplice evidence which the accused has challenged.

41. In Reg. v. Hodgett [1957] N.I., a case cited with approval by the Supreme Court of Canada in Regina v. Parish (1968) 4 C.C.C.11, by the Ontario Court of Appeal in Reg. v. McNamara (No. 1) (1981)56 C.C.C. 2d 193, and by the majority of the Supreme Court of South Australia in The Queen v.Stephenson (1978) 18 S.A.S.R. 381, Curran LJ had this to say at page 7:

"This leads to a further point made by Mr. Jones on behalf of the appellant which can, we think, be fairly described as the substance of his case. It may be stated as follows. The corroboration which a jury should seek before accepting the evidence of an accomplice must be corroboration in some material particular, and in this respect what is material connotes some issue that remains a live issue between the Crown and the accused after all the evidence has been heard and the case is committed to the jury. Accordingly, the argument proceeded, if the accused has given an explanation of corroborative evidence which accepts and is compatible with that evidence, it is then the explanation that raises the live issue and, therefore, the issue calling for corroboration, while the issue to which the available corroboration related, falls, so to speak, out of the case."

42. After referring to the particular matter in issue in that case Curran L.J. continued:

"As a general proposition we are of opinion that this submission must be rejected. As already indicated, the purpose of the rule we have been discussing is not to advocate the desirability of finding corroboration of the accomplice's evidence in all its material parts. The test that the warning counsels is less stringent and more practicable than this and is satisfied if the corroboration affirms a part of the accomplice's story, provided that part is such as to implicate the accused in the commission of the offence charged. But the character of this test does not depend on which part of the accomplice's evidence is corroborated so long as its materiality and implicative nature are clear, and we know of no authority for restricting the requisite corroboration to the part or parts of the accomplice's testimony that the accused chooses to put in issue. On the contrary, admissions have for long been held corroborative and it is hard to see now this could be so if the argument under consideration were sound."

43. In Rex v. D (1951) 4 S.A. 450, a case which preceded Hodgett, the Appellate Division of the Supreme Courts of South Africa and Southern Rhodesia adopted a similar approach, as indeed did the Court of Criminal Appeal of Queensland in R. v. MCK (1986) 1 Qd. R. 476.

44. Complaint was also made that in referring to item (4) relating to count 1, items (5), (6) and (7) relating to counts 2 to 6 and items (4) and (6) relating to the other counts, the judge simply identified potentially corroborative evidence in generic terms without specifying it or otherwise identifying any relevant document or passage in the testimony.

45. Lord Hoosen did not suggest that such evidence did not exist. His contention was that it would have been impossible for the jury to identify its source with any degree of certainty or to recall the credibility of the independent witness who gave it. We deal with the various items in turn.

Count 1

46. Item (4): The applicant himself admitted in his testimony, and the agreed schedule of dates disclosed, that he was in Hong Kong at the dates of the formation of A&P and the first injection of capital. That being so we do not think that Lord Hoosen's criticism has any force in relation to this matter.

Counts 2 to 6

47. Item (5): Fung Wing-yee, an employee of A&P whose duties included the keeping of accounts, testified that owing to constant fluctuation in the market rates her superior, Rita Chan, had to consult the applicant as to the interest rates payable on fixed deposits in the company. In cross examination it was suggested to her that she was mistaken and that what she had overheard were discussions between the applicant and Rita Chan concerning Luxembourg Finance Co., the deposit taxing company admittedly run by the applicant. Miss Fung, denied that she was mistaken and explained that as far as she could recall Luxembourg aid not receive any deposits from members of the public when she was employed by A&P, and that discussions regarding Luxembourg were mostly held by the applicant and Rita Chan in the privacy of their own office.

48. Although it is correct that the judge did not specifically mention Fung Wing-yee's evidence when referring to this item, he did deal with it earlier in the summing up. We do not think that the jury could possibly have been unaware of it and have failed to connect it with this item.

49. As to the advertisements the independent testimony came from Mr. Au of the Wah Kiu Yat Po newspaper, who testified that the applicant approved the wording and layout of the draft advertisements prior to their insertion in the newspaper, and that although he, Mr. Au, had dealt with Rita Chan and a Miss Leung concerning corrections to or alterations in draft advertisements, it was the applicant who gave the final approval.

50. In cross examination Mr. Au said that the applicant had only dealt with him in respect of the drafts for advertisements concerning Luxembourg Finance Company. When asked in re-examination to clarify this apparent contradiction Mr. Au explained that there came a time when the Luxembourg advertisements ceased and that he then handled those concerning A&P. It was these advertisements that were approved by the applicant.

51. The judge dealt with Mr Au's testimony earlier in his summing up without adverting to the apparent contradiction and subsequent explanation given by Mr. Au. However we see nothing sinister in that aspect of his testimony that required the judge's attention in the summing up. Nor it seems, did defence counsel for he made no mention of it in his final address to the jury. Although the judge did not specifically refer to the evidence of this witness when dealing with this item we have no reason to think that the jury would have been oblivious of it and its significance in that context.

52. Items (6) and (7): Other than Agnes Kwok, Eva Hui and Winnie Wong there were three witnesses who testified that the applicant had been present at meetings at which A&P's business was discussed and that he made decisions or gave instructions as to the running of A&P.

53. The first of these was Ng Yuet-wan, who was related to the applicant by marriage. She said that she sometimes attended meetings at which the business of A&P concerning fixed deposits and related advertisements had been discussed. The applicant was present on those occasions and was the person who made the decisions. When asked in cross examination "From what you could see, it was Miss Leung, that is, Agnes Kwok, and Rita Chan, who were running A&P, is that right?", she replied "Yes". In order to clarify this matter she was asked in re-examination what functions these women performed in the company. She replied that Agnes Kwok's duties concerned the writing of letters and typing and that Rita Chan's function related to bookkeeping. On being then asked if she knew whether the applicant had any functions in A&P she replied that she did not know.

54. We think that her description of the duties of the two women, Agnes Kwok and Rita Chan, made it plain that in giving the answer she did in cross examination she had not meant that they were running the company in the sense of controlling it. The words "running A&P" were not words chosen by her, but by counsel for the defence. We are also of the opinion that in saying she did not know whether the applicant "had any functions in respect of A&P", it is tolerably clear that she was referring to specific duties and was not in any way contradicting her testimony that he was the person who made the decisions concerning A&P at the meetings.

55. The second of the witnesses whose testimony related to this aspect of the evidence was Fung Wing-yee. We have already referred to her evidence that the applicant gave Rita Chan instructions as to the setting of the interest rates for fixed deposits.

56. The third was Ng Kit-wah. He testified that he initially worked at the applicant's travel agency to which we have already referred, and that in 1980 he was transferred to Kowloon Centre Travel Agency, another company run by the applicant. This company operated from the same premises as those occupied by the Kowloon branch of A&P. He was told by the applicant that he was to deal with financial matters as well as air ticketing business. When Mr. Ng explained that he knew nothing of financial matters, the applicant told him that he could pick it up gradually, and instructed him to supervise the receipt of funds from members of the public making deposits in A&P.

57. Lord Hoosen contended that Mr. Ng's testimony was not capable of amounting to corroboration of the evidence of the accomplices that the applicant gave instructions in connection with the running of A&P. We do not agree. The direction which the applicant gave to Mr. Ng to oversee the receipt of funds from customers making deposits with A&P clearly showed that despite the applicant's assertion to the contrary, he had in fact concerned himself with the administration of that company.

58. We accept, however, that Ng Yuet-wan's testimony that the business of A&P? was only occasionally or rarely discussed at the meetings she attended, does not support the judge's reference in item (6) that the evidence from untainted sources was that A&P business was regularly discussed at meetings held by the applicant. However, her evidence contradicts the testimony of the applicant and his witness Rita Chan that he had never attended such meetings. Having regard to the totality of the evidence capable of amounting to corroboration, we are of the view that this inaccuracy oh the part of the judge would have had ho significant effect on the jury.

The Remaining Counts

59. Item (4): Since the applicant admitted in the course of his testimony that the deposit money for the purchase of the United Centre premises came from his personal account, and since Rita Chan testified that he had agreed to lend her $3m for use as the deposit, we do not think that the judges treatment of this item lends any force to Lord Hoosen's contention.

60. Item (6): Miss Chan Kit-yu testified that she had been employed by the applicant and was working in several of his companies. When customers arrived to make deposits in A&P she would prepare a deposit card by inserting particulars of the depositor's name and telephone number and then hand the card to Rita Chan for safe keeping. She also sent telexes concerning the accounts of A&P to the applicant when he was absent from Hong Kong. The judge referred to this evidence concerning the telexes earlier in his summing up. We do not think it was necessary for him to repeat it when referring to this item.

61. A Mrs. Nora Candelario, who was employed by the applicant in New York in a company called Regent Travel Agency, gave evidence that during the course of her employment there the applicant told her that in addition to Luxembourg Finance Company he had another finance company called "Panama and America", that it was located in United Centre in Hong Kong and was very big, that he intended to employ more than 200 staff members and had a special phone system by means of which he could track down personal calls. Although she did not say that the applicant had received any telephone calls relating to A&P, we do not think that, in the light of her evidence concerning the special phone system, the jury were substantially misled. Indeed it seems to us that the applicant's assertion to Mrs. Candelario that he had another finance company named "Panama and America" situated in United Centre had far greater significance than any evidence that he had received telephone calls from A&P would have had.

62. Lord Hoosen also submitted that the judge not only failed sufficiently to explain to the jury that it was for them to decide which witnesses may have been accomplices, but that he left them with the false impression that it was the grant of an immunity by the prosecution which made a witness liable to be regarded as an accomplice.

63. In directing the jury as to accomplices the judge said:

"With regard to Agnes Kwok and Eva Hui, the position is that if their evidence is true, then they have acted as confederates of the defendant and CHAN Wai-king in the commission of these offences. That's why the Attorney General has had to grant each of them a conditional immunity from prosecution in order to use them as witnesses for the prosecution.

 

Both counsel agree that you should treat them as accomplice witnesses, and that means that I must warn you about the special danger with such witnesses when they give evidence implicating the defendant."

 

Later he dealt with the status of Winnie Wong:

"With regard to Winnie WONG, the warning is applicable only if you conclude that she may have been an accomplice in the commission of one or more of these offences.

 

Evidence was given by one of the prosecution witnesses that she once saw Winnie WONG sign the name Judy CHEN on a document. I cannot say to you that you should or should not treat Winnie WONG as an accomplice, because the law says that the question as to whether or not she should be so treated is a question to be decided solely by you, the jury.

 

If you thought that she may have been, then the same warning applies in respect of her, with the result that her evidence would not then be capable of confirming the evidence of KWOK or HUI.

 

If you were sure that she was not an accomplice, then - subject to what I will tell you in a moment - her evidence could be capable of confirming KWOK and/or HUI."

 

Later again he said:

 

"If you reject the defence evidence which asserted that he had no control over the affairs of A&P and you accept the evidence of Agnes KWOK and/or Eva HUI which asserted that he did, then you must remember the warning about the danger of convicting on such evidence in the absence of independent evidence confirming that he did instruct or authorize and approve as the case may be. In this connection I remind you that if you think that Winnie WONG may have been an accomplice, then you cannot rely on any evidence or hers for this purpose and in case you may be of that view, I leave her evidence aside for the purpose of outlining for you what evidence is capable of increasing the probability that the assertions by KWOK and/or HUI regarding his complicity are true."

64. Clearly Agnes Kwok and Eva Hui were accomplices. Apart from Winnie Wong there was no suggestion that any other witness fell into this category. It was not the judge's duty to direct the jury that they should consider whether any particular witness other than those either admitted or alleged to be accomplices might also be accomplices. Equally untenable, in our view, is the contention that the judge's reference to the granting of immunity to Agnes Kwok and Eva Hui implied that only witnesses to whom immunity had been granted could be regarded as accomplices. Winnie Wong had not been granted an immunity, yet the judge told the jury that it was open to them to treat her as an accomplice.

65. It is also contended that, having directed the jury that they might find Winnie Wong to be an accomplice, the judge failed to identify any evidence which was capable of corroborating her testimony. We would first observe that the judge adopted a course favourable to the applicant by excluding Winnie Wong's testimony from his outline of the evidence that he said was capable of amounting to corroboration of the testimony of Agnes Kwok and Eva Hui. Following this he dealt with the items of potentially corroborative evidence not only in relation to Agnes Kwok and Eva Hui but also Winnie Wong. All three were thus treated as accomplices notwithstanding that the evidence suggesting Winnie Wong's involvement in that capacity was extremely tenuous and that it was for the jury to decide whether she was in fact an accomplice.

66. It is evident to us that in listing the various items of evidence capable of amounting to corroboration, the judge made particular reference to such aspects of it which supported the testimony of Winnie Wong. We have already said in respect of an earlier ground of appeal that we do not consider it was necessary for the judge to refer specifically to the identity of each of the witnesses who gave that evidence. It was sufficient that he indicated to the jury that the evidence had been given.

67. A further complaint was that in his direction to the jury as to whether lies were capable of amounting to corroboration, the judge failed to explain that a lie could not be corroborative if it was shown to be a lie only upon the word of a witness whose evidence itself required corroboration. In our view, however, the judge made the matter abundantly plain to the jury. He said:

"proof of the lie must come from evidence other than the evidence of the witness who needs confirming. In this case, that means that proof that he was in overall control must come from evidence other than that given by KWOK, HUI and WONG."

68. Lord Hoosen submitted that the judge failed to identify any lie told by the applicant, or any evidence which supported a conclusion that he had lied. We do not accept this criticism. The following passage reveals that he did identify a lie allegedly told by the applicant:

"Finally, there is this in relation to all charges. If you conclude that the defendant has lied to you on this question of whether he was the person in overall control of A&P, then the fact that he lied in that way is also capable of confirming that tainted evidence regarding his complicity."

69. As we have already said, there was the testimony of Mrs. Candelario that the applicant had told her that he had another finance company named "Panama and America" and that it was located in United Centre, Hong Kong. The judge directed the attention of the jury to this very evidence. On our reading of the applicant's testimony we think there was ample material which would have justified the jury in concluding that he had lied as to the role he played in the operation of A&P.

70. Lord Hoosen also criticised the following excerpt from the long passage we have already quoted in which the judge dealt with the evidence that was capable of amounting to corroboration:

"In this outline, I assume that you have rejected the evidence of the defence in so far as it asserts that the defendant was not in overall control of the setting up and running of A&P. I make that assumption because if you are not of that view, you have, in effect, reached a verdict of not guilty on all counts."

71. This, he contended, "put the cart before the horse" and resulted in a wrongful two stage approach to corroboration. He submitted that "just as it is wrong to reject the accomplice evidence in isolation from the alleged corroboration, so it is wrong to reject the defence where it implies necessarily, acceptance of the accomplices before the question of corroboration is ever considered." In support of this submission he cited the words of Lord Bridge in Attorney-General of Hong Kong v. Wong Muk Ping [1987]AC 501 at 512:

"Where the prosecution relies on the evidence of an accomplice and where (in contrast with the instant case) the independent evidence capable of providing corroboration is not by itself sufficient to establish quilt, it will have become obvious to the jury in the course of the trial that the credibility of the accomplice is at the heart of the matter and that they can only convict if they believe him. The accomplice will inevitably have been cross-examined to suggest that his evidence is untrue. The jury will have been duly warned of the danger of relying on his evidence without corroboration. Their Lordships can see no sense in the proposition that the jury should be invited, in effect, to reject his evidence without first considering what, if any, support it derives from other evidence capable of providing corroboration."

72. In that passage Lord Bridge was simply laying to rest the fallacious proposition that in determining whether an accomplice is a credible witness the jury must consider his or her testimony in isolation from any evidence that is capable of providing corroboration of it. Plainly it is illogical to attempt to assess the credibility of a witness without a consideration of all the evidence in the case that might shed light on that issue.

73. In the present case the judge was doing no more than telling the jury that if they believed it was reasonably possible that the applicant had told the truth, then that was the end of the matter and they must return verdicts of not guilty: if, on the other hand, they rejected his assertion that he had no control over the affairs of A&P, and accepted the testimony of Agnes Kwok or Eva Hui on that matter, they must still warn themselves of the danger of convicting on the basis of such testimony unless they were satisfied that it was corroborated by independent evidence that he did control the affairs of the company. If the jury were not prepared to act on the testimony of the accomplices, they would be obliged to find the applicant not guilty notwithstanding that they thought he had lied. Indeed Lord Hoosen himself submitted in relation to another ground of appeal, that even if it were proved that the applicant was in control of A&P, it did not follow irresistibly that he was responsible for organising the falsification of the documents.

74. We do not consider that what the judge said ran counter to anything that was decided in Wong Muk Ping. He did not invite the jury to consider the testimony of the accomplices in isolation from the other evidence in the case. Nor did he tell them that they could not have regard to the testimony of the applicant in assessing the credibility of the accomplices. Indeed they were told that lies were capable of amounting to corroboration. He did not indicate that evidence which was capable of amounting to corroboration could not be used in the assessment of the credibility of the accomplices. But had he done so, it seems to us that, as in Wong Muk-ping, it would have been a matter for complaint by the prosecution, not the defence.

75. In our view there is no substance in this ground of appeal. Contrary to Lord Hoosen's understanding of what the judge said, the jury were not told that they should reject the evidence of the defence before considering the question of corroboration, nor was there any suggestion by the judge that they should adopt a two stage approach to corroboration. We are satisfied that the direction he gave would not have misled the jury as to how they should approach their consideration of the testimony of the accomplices or of the evidence that was capable of corroborating that testimony.

76. Lord Hoosen was also critical of the passage immediately following the judges reference to the seven items relating to counts 2 to 6:

"If you accept that evidence and it leads you to conclude that it is consistent with no other inference than that he was in overall control, then that evidence is capable of pointing to his complicity in the commission of these offences in that it's capable of supporting the irresistible inference that it could only be done if it were done under his authority and his approval."

77. It was his submission that this suggests that once it was proved the applicant was the person in overall control of A&P, there was an irresistible inference that he was the only person who could have been responsible for the falsification of the accounts. Moreover, it is said that this direction was irrelevant to the topic with which the judge was then concerned, namely, what evidence was capable of amounting to corroboration. We do not accept that the passage bears the meaning Lord Hoosen says it does. It would have been more elegant had the judge used the words "capable of leading to the irresistible inference" rather than "capable of supporting the irresistible inference", but we do not think that the use of the word "supporting" would have confused the jury or have led them to a false conclusion.

78. As to the second point, the accomplices testified that the falsification of the accounts was done at the instigation and with the authority and approval of the applicant. In our opinion any evidence that showed that he exercises overall control of the company was clearly capable of amounting to corroboration of their testimony.

79. A further ground of appeal was that the judge failed to put the defence case to the jury sufficiently. First, it is contended that he did not give adequate emphasis to the testimony of a handwriting expert, Mr. Hamilton, who was called for the defence.

80. The major thrust of the evidence of this witness was that initials which appeared on certain cheques and which Agnes Kwok and Eva Hui said were placed there by the applicant to indicate his approval of the issue of the cheques, were actually written by Rita Chan. This supported Rita Chan's testimony. He also expressed the opinion that certain signatures on cheques purportedly signed by Agnes Kwok, but denied by her as being her signatures, were in fact hers. Third, he gave his opinion that the signatures on lease agreements purporting to be those of Aminah Lo were forgeries perpetrated by Agnes Kwok. Agnes Kwok had testified that she had brought these agreements to Hong Kong from New York in order to deceive the Commissioner of Banking after he had commenced enquiries into the activities of A&P. Although she readily agreed that she had been guilty of extensive forgery of other documents relating to A&P, she denied that she had forged these signatures.

81. Mr. Hamilton was without doubt a flamboyant witness whose admitted advertising material titled "How to choose a Handwriting Expert" proclaimed "Your handwriting expert .... should from the moment you retain him have only one aim: to help you to win your case.".

82. The judge said this of him:

"With regard to Mr. Hamilton, however, in view of the attack upon the way in which he reached some of his conclusions, you may or may not have difficulty in accepting his opinions.

 

He identified the Aminan signatures on documents dated during the time when, according to the only evidence on the subject we have, she was still in Hong Kong, and he identified them as having been done by Agnes Kwok.

 

If the effect of that cross-examination was to shatter your confidence in the reliability of his methods of identification, you might understandably decide to reject his conclusions. Whether you do or not is, I remind you, entirely a matter for you to decide."

83. Having read Mr. Hamilton's evidence we think the judge was perfectly entitled to express himself in the way in which he did. Moreover, he reminded the jury of Mr. Hamilton's opinion that the initials on the cheques were written by Agnes Kwok, and that she had forged signatures on cheques and Aminah Lo's signature on tenancy agreements. We do not think the judge was required to do any more than this. Furthermore, since Mr. Hamilton was the last witness to be called, the details of his testimony must have been fresh in the minds of the jury.

84. There was also a complaint that the judge failed to mention to the jury the evidence of Mr. Li, an accountant called by the defence, that although at one stage the level of deposits in A&P reached $30m, the applicant was ultimately a loser to the extent of $4.7m. Since, however, it was accepted that there had subsequently been a substantial fall in the property market which adversely affected the value of the United Centre premises, we are of the opinion that the fact that the applicant was a net loser was, at most, of marginal relevance to the issue of whether or not he was in control of A&P and instigated the creation of the false accounts. In the circumstances we do not think it was necessary for the judge to refer the jury to this matter.

85. Another witness whose testimony it is said was not sufficiently dealt with by the judge was Rita Chan. We reject this criticism. The judge referred the jury to the following essential aspects of her evidence. Knowing that the applicant planned to emigrate, she and Agnes Kwok, who between them had the necessary accountancy expertise, administrative experience and knowledge of company documentation, decided to set up A&P as their own business. She told the applicant in general terms about the proposed venture, but it was not until after the formation and registration of A&P that she disclosed to him the nature of the business. All the information and documentation necessary to the incorporation of the company was supplied by Agnes Kwok, and, in a cosmetic exercise designed to convey the impression that the company had international status, the names of persons living overseas were listed as the directors and shareholders of the company. Although she did not realise that some of the names used by Agnes Kwok for this purpose were those of relatives of the applicant , she agreed to play the part of one of the directors, Judy Chen.

86. She asserted that the applicant had not been involved in the running of A&P and that the initials which the prosecution claimed the applicant had written on cheques had in fact been written by her. She used cheques and applications for cashier orders, both of which had been signed in blank by the applicant, to draw money from his accounts and funnel it into A&P. Even when the applicant was in Hong Kong before finally going to the United States he was ignorant of these manipulations of his bank accounts.

87. The only roles the applicant played in the purchase of the United Centre premises were those of advisor and helper. He had no right or interest in A&P or in the United Centre premises. The bogus loan files were created in May 1980 at the time when the fictitious loans were purportedly made, not in 1982 as Agnes Kwok and Eva Hui had testified. Having thus been created, the loan files were kept up-to-date.

88. She and Agnes Kwok had engaged in various manoeuvres in order to make it appear that monies which had actually been moved from A&P to Luxembourg Finance Company Limited had moved in the opposite direction. In April 1982 the Commissioner of Banking had become suspicious that the first set of loans by A&P to five bogus borrowers were not genuine and had sent members of his staff to A&P to make enquiries. At that time A&P had an account in its books relating to a fictitious loan from a director. This was subject to annual review and, in the event that A&P did not intend to repay the loan, the Commissioner's approval had to be obtained. However, as the original fictitious loan had not expired at this time it became necessary not only to arrange for the renewal of the loan but also to satisfy the Commissioner of the genuineness of the first set of loans. In order to overcome these difficulties she and Agnes Kwok created a new set of documents in substitution for the old ones and "repaid" the director. The applicant had nothing to do with these manipulations.

89. In our view this was a fair and adequate coverage of the thrust of her evidence that A&P was controlled by her and Agnes Kwok, and not by the applicant.

90. Another ground of appeal was that the judge wrongfully allowed counsel for the prosecution to ask questions of the applicant that were "unfair, vexatious and mischievous, and calculated to, and did, go beyond an attack on the character of the applicant to matters not relevant to the trial and hence drew answers and responses from the applicant which were designed to and did introduce irrelevancies into the trial which unfairly prejudiced the applicant in the minds of the jury."

91. We think it significant that throughout the entirety of the passages of cross-examination referred to us by Lord Hoosen in which counsel for the prosecution was alleged to have engaged in improper questioning of the applicant, there was, apart from one interruption, no objection from the defence team of two leading and one junior counsel. The sole interruption was a query as to "how far" the applicant could answer a question in which he was asked to give some idea of now the police could have managed to persuade witnesses to give false testimony.

92. Had the questions asked by prosecuting counsel been of such a nature as to have been likely to produce the effect Lord Hoosen now submits they must have had, we have not the slightest doubt that objection would not only have been made, but would have been expressed in the most forceful manner possible.

93. We do not propose to set out the seventeen pages of transcript of this allegely unfair cross-examination which proceeded without objection. Suffice it to say that the type of question of which complaint is now made was one in which the applicant was asked whether the various prosecution witnesses had peen mistaken or whether they had told lies arid, if the latter, did he know of any reason why they should have lied.

94. Lord Hoosen cited to us the following passage from the judgment of Lord Hewart LCJ in R v. Baldwin (1925) 18 Cr. App. R. 175 at 178:

"One so often hears questions put to witnesses by counsel which are really of the nature of an invitation to an argument. You have, for instance, such questions as this: 'I suggest to you that....' or 'Is your evidence to be taken as uggesting that ...?' If the witness were a prudent person he would say, with the highest degree of politeness: 'What you suggest is no business of mine. I am not here to make any suggestions at all. I am here only to answer relevant questions. What the conclusions to be drawn from my answers are is not for me, and as for suggestions, I venture to leave those to others.' An answer of that kind, no doubt, requires a good deal of sense and self-restraint and experience, and the mischief of it is, it made, it might very well prejudice the witness with the jury, because the jury, not being aware of the consequences to which such questions might lead, might easily come to the conclusion (and it might be true) that the witness had something to conceal. It is right to remember in all such cases that the witness in the box is an amateur and the counsel who is asking questions is, as rule, a professional conductor of argument, and it is not right that the wits of the one should be pitted against the wits of the other in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact.

 

One even hears questions such as: 'Do you ask the jury then to believe...?' The witness may very well reply: 'I am asking the jury nothing; my business is to tell whatever is relevant that I know and that I am asked to tell, and therefore my answer to your question, and to all such question is 'No, I do not.' But in practice, both in civil cases and in criminal cases, one finds this line of cross-examination employed. It is a mischievous line and it is never more mischievous than when it has the effect of inducing a witness, inadvertently or, it may be, even in a mood of irritation, to make the kind of attack that, under s.1 of the statute, lets in certain other evidence which, but for that attack, would not be let in. These matters are not to be ignored by counsel who appear for the prosecution. They are equally not to be ignored by counsel who appear for the defence, because so often questions are asked which are ingeniously calculated up to the very last point to be consistent with abstinence from putting the defendant's character in issue, while undoubtedly the probable, as it is the intended, effect of those questions is to exhibit the man to the jury as a person of good charater. Counsel for the defence should refrain from such qustions for prudential reasons. Counsel for the prosecution should refrain from them for reasons of fairness, because the Crown has no interest whatever in securing a conviction. Its sole interest is to convict the right man.''

95. In our view the line of questioning adopted by prosecuting counsel was perfectly proper. He was not seeking to extract answers from the applicant for the purpose of introducing evidence of bad character that could not otherwise have been let in, for he made no such application. If the applicant was able to give a sound reason why the prosecution witnesses had given false evidence against him, the jury were likely to ignore or give little weight to their testimony. On the other hand, if the applicant was unable to advance any good reason, the jury were entitled to take that into account in assessing the credibility of those witnesses. We are unable to find anything in Baldwin that supports the contention advanced in this ground of appeal.

96. A further ground of appeal was that in the course of his summing up the judge "raised arguments in favour of the Crown which had not previously been canvassed, and which the defence had no opportunity to meet". The judge, having earlier warned the jury that "my comments on matters of fact must not be accepted by you, if they do not accord with your view", addressed them in these words:

"You have heard the submissions of counsel as to who you should and who you should not believe. I merely draw your attention to some circumstances not mentioned by either counsel which you may or may not think to be significant."

97. He then went on to point out to the jury four aspects of the evidence that might assist them in their assessment of the credibility of the witnesses. In our view he was fully entitled to do so. We think the matter is admirably summarised in the report in The Times of 23 May this year of the judgment of the court delivered by Lord Lane in Regina v. Evans:

"The judge, in directing the jury, was not confined to the arguments which were propounded by the prosecution on the one hand or the defence on the other. Providing the matters with which the judge dealt were matters which had been given in evidence, it was open to him to comment upon them.

 

It scarcely needed explanation but, if explanation was required, it was that the jury had heard all the evidence. They would come to those conclusions upon the facts, whether the prosecution had mentioned or hignlighted those facts, or whether the defence had done so.

 

Consequently, there was no reason at all that their Lordship's court could see why in those circumstances the judge should not make such comments as he thought fit to the jury, having warned them, as the judge had, that any comments that he made with which they did not agree they should disregard entirely. He was not introducing anything fresh or anything which came as a surprise to either the prosecution or the defence.''

98. For the reason we have given we are satisfied that there is no substance in any of the grounds of appeal. The application for leave to appeal is therefore dismissed.