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CACC 424/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 424 OF 2013
(ON APPEAL FROM HCCC NO. 323 OF 2012)
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HKSAR |
Respondent |
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MA SIN CHI (馬善智) |
1st Applicant |
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HA BUT YEE (哈弼意) |
2nd Applicant |
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| Before : Hon Lunn VP in Court |
Date of Hearing : 29 June 2015
Date of Judgment : 30 June 2015
Date of Reasons for Judgment : 11 August 2015
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REASONS FOR JUDGMENT
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1. The 1st and 2nd applicants sought leave to appeal their convictions on 9 December 2013 after trial by P Li J and a jury, in the case of the 1st applicant, the Chief Warrant Trader of Deutsche Bank, of four counts (Counts 1-4) of an agent accepting an advantage from the 2nd applicant and others, investors in derivative warrants during the overall period from 16 January 2007 to 7 May 2008, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201, and in the case of the 2nd applicant, together with others of four counts (Counts 5-8) of offering an advantage to the 1st applicant, contrary to sections 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201. In addition, they each sought leave to appeal against the total sentence of 7 years’ imprisonment imposed on each of them.
The Trial
2. There was no dispute that during the material period payments totaling HK$24.8 million were made to the bank account of the 1st applicant from the bank accounts controlled by the 2nd applicant in the names of his two sons, the 3rd and 4th defendants at trial, and his sister, the 5th defendant at trial. They were all acquitted after trial.
3. It was alleged by the prosecution that the aforesaid payments were paid as a reward for information given on derivative warrants issued by the Deutsche Bank and assistance, which conduct assisted the 2nd applicant and the Ha family in their trading of such warrants.
Grounds of appeal
4. The 1st applicant advanced no fewer than 20 grounds of appeal in his Re-Amended Perfected Grounds of Appeal against Conviction, whilst the 2nd applicant advanced 13 grounds of appeal in his Amended Perfected Grounds of Appeal against Conviction. Each of the applicants advanced grounds of appeal against sentence.
5. On behalf of the respondent, Mr Matthew Leung informed the Court in a letter dated 15 April 2015 that, whilst he had no objection to leave being granted in respect of the applications for leave to appeal against sentence, he objected to grounds 14 to 19 of the 1st applicant’s grounds of appeal against conviction and grounds 6, 9 to 12 of the 2nd applicant’s grounds of appeal against conviction.
The 1st applicant: grounds 14 to 19
6. Grounds 14 to 16 concerned the judge’s alleged errors in directions or failure to give an appropriate direction to the jury in respect of out-of-court statements by the 1st applicant to officers of ICAC, which in his testimony at trial he admitted to be lies. In grounds 17 and 18, issue was taken with the judge’s direction to the jury to consider whether or not a certain payment was a “bribe” rather than a payment of profit from futures trading. By ground 19, it was contended that the judge had erred in directing the jury that, having listened to the audio recordings, they were to ascertain whether the information contained therein was information “…ordinarily given to an investor or special information given to the 2nd defendant.” That, it was contended was a matter for their consideration of the expert evidence.
7. Mr Bell SC submitted on behalf of the 1st applicant that grounds 14 to 16 concerned matters of law only, being erroneous directions or the failure to give directions in respect of lies in the out-of-court statements of the 1st applicant. As such, pursuant to section 82(2)(a) of the Criminal Procedure Ordinance the leave of the Court was not required. Similarly, he contended that grounds 17 and 18, which concerned the judge’s use of the word “bribe” rather than “advantage” in his directions as to the elements of the offence, concerned a matter of law only and that the leave of the Court was not required. Finally, somewhat optimistically, he contended that an issue of law only was involved in the judge’s direction to the jury that, having listened to the audio recordings and having regard to the nature of the information given to the 2nd defendant they were to determine whether the information was that “…ordinarily given to an investor or special information”.
8. Mr Leung opposed the submission that those grounds raised issues of law only. Rather, he said they were mixed issues of law and fact.
The 2nd applicant: grounds 6, 9 to 12
9. By ground 6, Mr Tse SC contended that the judge erred in the course of his summing up, having refused the request of the jury at the end of the first day of his summing up to be provided with a transcript of the summing up, albeit that he acceded to their request to speak more slowly, “…in failing to confirm if the jury properly understood his directions and to provide adequate assistance to them”.
10. By ground 9, it was submitted that such directions that the judge had given to the jury as to circumstantial evidence were “seriously flawed and unhelpful”.
11. By ground 10, it was contended that the judge had given the jury directions that were “materially inaccurate and erroneous in law” as to the ingredients of the offence of an agent accepting an advantage, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201. First, he failed to explain what constituted an “advantage”. Secondly, he failed to direct the jury as to the circumstances in which the payment of an advantage gave rise to liability, namely that payment was made “as an inducement to or reward for or otherwise on account of”. Thirdly, although the judge had directed the jury to consider whether the payments were “bribes” he did not define or describe its meaning.
12. By grounds 11 and 12, it was submitted that, in giving the jury directions in respect of the 1st applicant’s out-of-court statements to ICAC officers, the judge failed to direct the jury that those statements were not evidence against any other defendant. Further, he failed to direct the jury that such lies as the 1st applicant might have told in the out-of-court statements could not be used to support the prosecution case generally, but only the case against the 1st applicant.
13. At the end of his oral submissions, Mr Tse submitted that grounds 10 to 12 concerned matters of law only so that, pursuant to section 82(2)(a) of the Criminal Procedure Ordinance, the leave of the Court was not required.
14. Mr Leung opposed the submission that those grounds raised issues of law only. Rather, he said they were mixed issues of law and fact which did not give rise to reason with the arguable grounds of appeal.
The 1st applicant
15. I found that grounds 14 to 18 of the 1st applicant’s grounds of appeal concerned matters of law only, so that pursuant to section 82(2)(a) of the Criminal Procedure Ordinance the leave of this Court to appeal is not required. On the other hand I found ground 19 involved a question of mixed law and fact and does require the leave of the Court. Nevertheless, I was satisfied the ground was reasonably arguable and I granted leave to appeal. Further, I granted leave in respect of the other grounds of appeal to which no objection was made, namely grounds 1 to 13.
The 2nd applicant
16. I found that grounds 10, 11 and 12 of the 1st applicant’s grounds of appeal concerned matters of law only, so that pursuant to section 82(2)(a) of the Criminal Procedure Ordinance the leave of this Court to appeal is not required. Grounds 6 and 9 involved questions of mixed law and fact, so that the leave of this Court is required. I was not satisfied that either of those grounds was reasonably arguable and I refused leave to appeal on those grounds. Further, I granted leave in respect of the other grounds of appeal to which no objection was made, namely grounds 1 to 5, 7, 8 and 13.
The grounds of appeal of the 2nd applicant in which leave was refused
Ground 6
17. By ground 6 it was the 2nd applicant’s complaint that the judge had failed to ensure that the jury was able to follow his directions having regard to the request made by the foreman of the jury at the conclusion of the hearing on 3 December 2013, the first day of the three days over which the summing up was delivered, that they be provided with a written transcript of the summing up and, in response to the judge informing them that it was not appropriate for him to do so, a request of a juror that he speak more slowly.[1] In reply, the judge indicated that he would comply with the latter request.
18. As Mr Leung submitted, those requests of the jury did not give rise to the inference that the jury did not understand the directions of the judge. There were no further requests by the jury of the judge. This ground is wholly speculatively and bereft of any merit. I declined to grant leave to appeal on ground 6.
Ground 9 : circumstantial evidence and inferences
19. It is complained that the judge gave a “seriously flawed” direction as to what constituted “circumstantial evidence against the 2nd defendant”. At the outset, the judge gave general directions in respect of circumstantial evidence, contrasting it with direct evidence.[2] The judge did not focus his directions in respect of circumstantial evidence “against the 2nd defendant”. Of circumstantial evidence, he gave examples; namely, “…the profit and loss trends in trading derivative warrants, the trading pattern and strategy, the various cheques and the timing of issuing those cheques and the contents of telephone conversations..” [3] Then, he gave directions in respect of inferences. He told them repeatedly that “…you may only draw an inference against a defendant if that inference is the only reasonable inference to draw”.[4] Those directions resonated with Specimen Direction 21.2-21.3 of the ‘Specimen Directions in Jury Trials’ of the Judicial Institute. Those directions were part of the general directions in respect of matters of law that the judge had embarked upon at page 869 D of the transcript and which continued until page 877 when he embarked upon a summary of the evidence.
20. As Mr Leung pointed out, in his very lengthy reminder to the jury of the evidence the judge referred in turn to the examples that he had given the jury of circumstantial evidence. First, the judge reminded the jury of the Mr Cheng’s evidence relevant to the profit and loss of the Ha family trading.[5] Secondly, the judge reminded the jury of his evidence relevant to the trading pattern of the family.[6] Thirdly, in respect of the telephone conversations, the judge drew the jury’s attention to the nature of conversations between the 1st and 2nd defendants.[7] He did so by reference to the evidence of Mr Cheng, who had given evidence as an expert witness. Also, the judge addressed the evidence called in the defence case, reminding the jury at length of the evidence of the 1st applicant in relation to his telephone conversations with the 2nd applicant.[8] Of an explanation given by the 1st applicant in respect of one particular telephone conversations the judge directed the jury, “judge for yourself, listen to the telephone conversations and look at the trading records.”[9] Fourthly, the judge referred the jury to the evidence relevant to the pattern of payments by cheques by the 3rd, 4th and 5th applicants to the 1st applicant.[10] In particular, he invited them to note that on a number of stipulated occasions the payments were made on the same date and were in the same amount. In context, earlier the judge had invited the jury to have regard to all of the evidence, but in particular the cheques, in determining whether or not the payments stipulated in each count “was a bribe or profit on trading Hang Seng index futures.”[11]
21. I am satisfied that having identified examples of circumstantial evidence at an early stage of his summing up the judge went on to assist the jury appropriately in the context of that evidence in respect of the issues in the case. There is no merit in this ground of appeal. Accordingly, I refuse to grant leave on this ground.
Grounds of appeal against sentence
22. I was satisfied that the grounds of appeal against sentence advanced on behalf of the 1st and 2nd applicants were reasonably arguable and I granted leave to appeal against sentence.
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(Michael Lunn) |
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Vice-President |
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Mr Matthew Leung, SPP of Department of Justice, for the respondent
Mr Adrian Bell, SC and Mr Edward M. H. Chan, instructed by Lee &
Chow, for the 1st applicant
Mr Joseph Tse, SC and Ms Doris Ho, instructed by Howell & Co, for the
2nd applicant
[1] Appeal Bundle, page 885 U-T.
[2] Appeal Bundle, pages 872 P - 873 D.
[3] Appeal Bundle, page 873 D-G.
[4] Appeal Bundle, pages 873 R-U; 874 R - 875 C.
[5] Appeal Bundle, page 894 A.
[6] Appeal Bundle, page 895 J - 901 B.
[7] Appeal Bundle, pages 901 C - 903 D.
[8] Appeal Bundle, pages 924 U - 926 B.
[9] Appeal Bundle, page 926 N-P.
[10] Appeal Bundle, page 957 B-P.
[11] Appeal Bundle, page 957 B-F.
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