THE QUEEN v. YIP KAM-SING

IN THE COURT OF APPEAL

1995, No. 519
(Criminal)

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J U D G M E N T

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Mortimer JA (giving the judgment of the Court) :

1. The applicant was convicted of 12 offences against the Inland Revenue Ordinance on 12 July 1995 by His Honour Judge Kilgour at the end of which he was sentenced to 15 months imprisonment concurrent on each count of the indictment and the judge made various other financial orders.

The facts

2. The charges involved tax evasion on a substantial scale involving six tax years - there being two charges for each year between 1985-1986 to 1990-1991. The fraud involved the applicant's company and false invoicing in relation to stock purchasing. This increased the company's outgoings with the result that the taxable profits were decreased. In brief there were 76 transactions involving purchases from four companies found by the judge to be false involving cash purchasing of 'Lycra' cloth used for swimsuits.

3. The applicant by counsel applies for leave to appeal against those convictions.

The application

4. It is submitted that there are two matters which this Court ought to allow to be argued.

5. The first involves inferences drawn from primary facts. It is submitted that the judge was in serious error in drawing inferences from certain facts which were proved.

6. It is not necessary for this Court to enumerate the detailed submissions which are that in almost every case where the judge drew an inference, it was not the only inference that could reasonably have been drawn. Therefore, it is submitted, his conclusion of guilt cannot be sustained. With great respect, that is not the proper approach. The judge took a proper approach to these matters. He considered the whole of the evidence. Reliance was placed upon circumstantial evidence. He took into account the whole of the circumstantial evidence. He applied the burden and standard of proof to determine at the end of his consideration of the Crown case whether the offences were proved so that he was sure of guilt. He came to the conclusion that the guilt was proved. In this respect the judge's approach to the evidence and his conclusion are unassailable.

7. The second point is this. That the judge was wrong - and demonstrably so - to reject the evidence of Mr Wan, the 1st defence witness. The judge rightly assessed the importance of this witness. He said:

"As I have said, he said he [the witness] received the cloth set out in every one of the 76 invoices which if true, or partially true, or possibly true, meant that these were not bogus transactions at all and the prosecution must inevitably fail."

But the judge, having seen and heard that witness, came to the conclusion that he should reject his evidence. He did so in firm terms. In a nutshell he thought that out of a misplaced sense of loyalty, the witness had come along to mislead the court.

8. It is submitted that the applicant ought to be given leave to argue that the judge misunderstood some of the evidence and was in error in relation to the other evidence when he rejected the witness. Whereas it is right to say that the judge appears to have made some relatively minor errors, the conclusion which he reached is not one which can be seriously attacked. The conclusions he reached remain, it seems to us, to be completely valid. In a word, the judge's reasons for verdict were almost impeccable.

9. It is to be noted that on the main question - whether the companies from whom it was said purchases had been made were real and existing companies or bogus ones - the applicant chose - as was his right - not to give evidence. But, having not given evidence, inferences which could be drawn against him were left without answer once the witness Wan had been rejected. The applicant was in the best position of anyone to explain these matters. He had received the money which was said to have gone to the companies. Having received the money, that evidence itself raised inferences which cried out for an explanation. There was none.

Conclusion

10. In the result there are no grounds upon which we could properly give leave to argue on appeal. The application is refused.