THE QUEEN v. JOHN CASTRO REYES AND OTHERS

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JUDGMENT

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Li, V.-P.:

1. In the court below the three applicants faced a total of 20 counts. We are informed by counsel that the first 14 counts were allowed to remain on the file. The Crown proceeded with the remaining 6 counts, namely count 15 to count 20 inclusive. Hence the trial judge referred to count 15 as the 1st count and count 16 as the 2nd count respectively.

2. Reyes was the 1st defendant, LAU Troung-hao was the 2nd defendant and TAM Nai-kit the 3rd defendant. In the event the 1st accused was convicted of the 1st and the 5th counts and was acquitted of the 2nd count. The 2nd defendant was convicted of all five counts - the 1st to the 5th. The 3rd defendant was convicted of the 3rd, the 4th and the 6th counts.

3. They all appealed against conviction as well as against sentence. The 2nd defendant, prior to the hearing, withdrew his application for leave to appeal against conviction. The 3rd accused, at the commencement of the hearing, informed the court through his counsel that he would abandon his application for leave to appeal against conviction. Accordingly the 3rd defendant's application for leave to appeal against conviction is dismissed. That leaves only the 1st defendant who appeals against conviction. All three of them still want to pursue their applications for leave against sentence.

4. Having regard to the grossly under-estimated time allowed for the hearing of this appeal we decide to hear the 1st defendant's application for leave to appeal against conviction first, leaving all three accused's applications for leave to appeal against sentence until an adjourned date and possibly, if necessary, by a differently constituted division of this court.

5. The 1st count alleges that the 1st and 2nd accused. between the 1st of November 1981 and the 5th of March 1983 conspired together with one Lawrence Lo, CHU Wing-wing and CHIU Hung-piu to defraud the Hong Kong Metropolitan Bank Ltd. by dishonestly:

6. The 5th count alleges that 1st and 2nd accused between the 15th of November 1982 and 5th of March 1983 conspired together with the same persons - Lo, Chu and Chiu to defraud the Hong Kong Metropolitan Bank Ltd. by dishonestly: -

7. The prosecution evidence adduced was that the 1st accused was a man who had retired, from the Citibank at. the end of 1980, having advanced to the position of Assistant Vice president. He was invited. to join the Hong Kong Metropolitan Bank by a Mr. Watt who was either the Chairman or Deputy Chairman of the Hong Kong Metropolitan Bank in the Hong Kong head office. The first accused was soon, appointed branch manager of the newly opened Admiralty Branch. He was also sitting in the management committee of the bank's headquarters. Evidence was adduced that he had approved the opening of accounts of the following firms, companies and persons: Superior Resources, Texvinyl Enterprises Ltd., Profitaful Ltd., Marvellous Enterprises Ltd., Suppliers Credit, Lawon Interlinings, Hillford Ltd., the 2nd accused, SO Chung-pong and CHU Wing-ming who owned the Fashion Handbags and Handbags Products. The 2nd accused was in control and the running of the companies or firms called Superior, Texvinyl, Profitaful, Marvellous and, in particular, suppliers Credit. The three accused were personal friends with whom he used to socialize at least two or three times a week. The 2nd accused had been to Taiwan with the 1st accused and other people, and had allowed the 1st accused's girl friend to live in his flat in Hillwood Road rent free.

8. The 1st accused was very liberal in granting credit facilities. In fact by his so doing he did well for the bank for a time.

9. The Crown's case was based on the applicants' dishonesty in that the contents of the application for loan 'credits in relation to the Suppliers Credit were false and misleading. Such applications were recommended or endorsed by the 1st accused. Further the 1st accused permitted the use of accrued interest receivable account for the purpose of discounting cheques which were not presented for payment on due dates. The Crown also relied on the evidence that there was a concoction of false transactions to support letters of credit applications which were presented by the 2nd accused but nevertheless recommended by the 1st accused. There was a report on the credit lines of accounts of the firms on the 30th of September 1982 which was grossly in excess. There was also a report of temporary overdraft exceeding the overall overdraft limit approved in April 1982.

10. The 1st accused initialled each report as "covered" even though such overdraft was not. On 1st of August 1981 these were weekly reports to be checked by one Braga after preparation by a clerk. It was the 1st accused's duty to check them. The object of these reports was to find out whether any sum was outstanding from the customers and to see that there should be no excess in the overdraft facility line. There was evidence that the Superior Resources had no overdraft facilities. But from the 4th of May 1982 to the 20th of May 1982 there was a small overdraft. Marvellous, on the 22nd of April 1982, had an outstanding overdraft of $724,000 when the limit was only $200,000. Such excess was not included in the weekly reports. Another incident was that Texvinyl had an overdraft of $184,000 though it had not been granted any overdraft facilities. That was on the 28th of April 1982. Again this was not reported. Texvinyl's account was in credit on the 30th of April only. That was only because a cheque for $324,000 was drawn on the Suppliers Credit account in order to pay into the Texvinyl account to cover the excess or the overdraft.

11. Going back to the 1st accused there was evidence that when he joined the bank it was adopting a liberal and progressive policy. The 1st accused gave approval to the Texvinyl account. He was at one time commended for his aggressive policy in approving cheques discounting which made some profit for the bank. There is no necessity to go through the activities of the 2nd and 3rd accused except that their relationship was close and that their companies were closely connected. The 1st accused did help a company by the name of Tinction to open an account. Tinction lost $1.6 million in the year 1979/80, nearly $1 million in the year 1980/81 and that it fared very badly in the year 1982. The 2nd accused introduced the 3rd accused to the 1st accused prior to Tinction applying for credit facilities. Yet the 1st accused approved or recommended credit facilities to be granted to Tinction. He was however not charged in matters relating to Tinction. As a matter of showing his dealings with the other accused evidence was adduced that the 1st accused did recommend in a loan credit report on Tinction dated the 20th of January 1981 and to the higher authority of the bank that credit facilities be granted to that company. The 1st accused knew that Suppliers Credit transferred funds to one company by the name of Espadon. 1st accused said he thought it was a payment of an ordinary business transaction. In fact no business transaction was done between Suppliers Credit and Espadon. The 1st accused's son was employed in Espadon, to which a cheque to the amount of US$40,000 had been sent, for no reason.

12. Monthly reports of the customers were sent from the Bills Department to a certain Mrs. Lee in the headoffice showing the amounts of bills, the due date and outstanding amounts. In August 1981 the fortnightly temporary report was introduced. It was sent from the Admiralty Branch to show excesses on overdrafts of each customer. The 1st accused initialed the various overdrafts in this group of companies inspite of excesses. The monthly reports were signed on every page by 1st accused, sent to the Credit Department and the Accounts Department. Later, there were a computerised daily report to the headoffice and reports on the current accounts. Again they show excesses on the credit lines. There was a memo from time to time sent to the branch offices giving guidelines for the granting of credit facilities showing that for all accounts the facility line should. not be more than 10% of the limit or a $100,000 over the limit, whichever was less. The 1st accused had no discretion to grant credit once the credit line limit had been exceeded or once the credit line had expired.

13. It was the lst accused's duty to check the credit loan report to see to that:

Whilst all these breaches were apparent in relation to the associated companies accounts with the Bank, the 1st accused never informed his superiors before he allowed Suppliers Credit to draw down on its account. However, the defence was that the 1st accused had authority to give a proportional drawing on the overdraft accounts.

14. The lst accused had a duty to check and verify the loan credit reports and to report any outstanding debt when the credit line expired. He had a duty to examine on the overdraft accounts to ensure that it was not a long term overdraft. He was given daily computerised report data of all the accounts to see whether cheques caused overdraft and to decide whether he should give any further credit.

15. There was evidence that the letters of credit involved in the charges were not based on or related to genuine business transactions. No goods were sent and no transaction took place. Five letters of credit were granted to Suppliers Credit. They were all approved by the 1st accused who admitted that as from the 1st of January 1982 he signed all letters of credit applications from Lawon, profitaful, Texvinyl, Marvellous, Superior Resources as well as Suppliers Credit.

16. The 1st accused had no authority to discount cheques without a credit line. But he did it. All the discounted cheques must be presented for payment on due dates and the 1st accused did not do so. He allowed the cheques drawn on companies controlled by the 2nd accused to be replaced by other cheques. He allowed what was described as "cheque firing'. He allowed interests on the replaced cheques to be put into the accrued interest receivable account, especially those from Profitaful and Suppliers Credit. In fact such interest chargeable should be put on the accrued interest advance account. That was most irregular. The first charge alleged that the 1st accused caused the bank to make excessive advances without being adequately secured and guaranteed. He approved the credit line that exceeded the overdraft line and the cheque discounting line. Such excesses were not within the 1st accused's authority to approve. The credit line of Suppliers Credit was exceeded as well its cheque discounting line. At one time the excess was up to $2.5 million. As to the fixed deposit that was required the amount was $5 million, but at no time was this requirement complied with. In fact the highest amount that was paid into the deposit was $4.3 million. The discounted cheques showed outstanding sums of over $3 million in September/October 1982. At one time the overall outstanding debt from Suppliers was over $10 million. Furthermore, on the instruction of the 2nd accused moneys were paid into the fixed deposit account of Suppliers to satisfy the requirement came from other associated companies.

17. As regards misleading information it was alleged that the loan credit report initialed by the 1st accused referred to the 2nd accused's credit standing as having a net worth of $10 million. But practically all the assets and properties belonging to the 2nd accused or his associates were mortgaged up to the hilt. In fact up to that time the 2nd accused had no assets. Texvinyl and Suppliers had no genuine business. They never were active business companies. There was no transaction in relation to the letters of credit. These letters of credit were founded an false invoices, false vouchers and false documents.

18. On the allegation of causing the bank to discount cheques, there was evidence that 23 cheques were discounted for Suppliers Credit. Its limit for discounting cheques was $2 million. At one time Suppliers Credit was allowed to go to the excess of up to $4 million. All the cheques were drawn on the Handbag Products, the Fashion Handbags as well as Sun Rays - companies closely associated with Suppliers Credit.

19. The fixed deposit account of Suppliers Credit came from cheques drawn on associated companies and therefore it was not permissible security. At one time the fixed deposit account of Suppliers Credit in order to secure his overdraft account was deficient. A $700,000 cheque was paid into that fixed deposit account on the 29th of April 1982. That was a cheque drawn on the overdraft account of Suppliers Credit so that in fact it was the bank's own money put up as security for the other credit line. That was also initialed by the 1st accused.

20. Lastly, there was evidence that he caused discounted cheques not to be presented on due dates. There was evidence from officers of the branch who found that discounted cheques had not been paid on due date. The lst accused told them to carry on as usual and not to present them for payment.

21. The distinct acts in relation to the fifth charge was that 16 cheques were discounted between the 15th of October 1982 and the 5th of March 1983. The proceeds were paid to the company called Profitaful Profitaful had no credit line. The 1st accused had no authority to allow such cheques to be discounted. The cheques that were discounted were drawn on Sun Ray, Fashion Handbags, Handbag Products and Lawon Interlinings. They were all inactive companies and closely associated with Profitaful. In particular, the four cheques initially given were overdue. The 2nd accused was allowed to replace them by another four cheques and then another four cheques for the third time. At all times those cheques had never been presented. The last set of four cheques replacing the previous 12 were found in the safe of the Bank. Two of them were overdue at the time when the 1st accused was arrested. All four cheques subsequently presented for payment were dishonoured. Incidentally all the replaced cheques were found in the premises of the 2nd accused. They were the twelve cheques that had been replaced. The above evidence alleged against the 1st accused in support of the 1st and the 5th counts.

22. The 1st accused generally denied all these allegations. The defence was that although the bank had periodically reminded the staff and branch managers of the guidelines for granting credit, yet these guidelines were constantly ignored by all branches without being corrected. He personally ignored these guidelines because the bank adopted a liberal policy and because at the material time, all banks adopted an aggressive policy. All were over-anxious to lend money to people. Counsel for the applicant even suggested there were other banks which had granted loans with such an approach and suffered even greater losses. The defence was that the bank did allow their staff and particularly branch managers to adopt a liberal policy to lend money to people. What caused this loss was an error of judgment. It might be negligence but certainly not dishonesty. The whole failure was due to the collapse of the market in 1982/83. He explained that the $500,000 paid to the 1st accused by the 3rd accused was repayment of a loan. The 1st accused said he had discretion to approve proportional lending. The guideline was that he was given the discretion to lend money up to $1 million without a credit line or to lend money on the credit line plus 10% of the limit or $100,000. Further he could adopt the 10% approach and ignore the $100,000 limit. Thus if the limit was $9 million he could have lent up to $9.9 million without transgressing the guideline.

23. The 1st accused said he initialed the letters of credit applications, not to indicate approval, but as recommendation to the higher authority. If the application was within his authority his initial meant approval. Otherwise it merely indicated a recommendation. He said it was not his duty to check whether there were genuine goods relating to the letter of credit. It as a matter for the Bills Department. He had no knowledge, therefore, whether the transaction was genuine or false.

24. He said that when the Texvinyl bills were overdue by October 1982, he had stopped approving them as from December 1982. He also said that when it was found that the Suppliers Credit was getting in excess of the limit he spoke to the 2nd accused who deposited the title deeds of the latter's flat in Hillwood Road (where his girl friend lived) as a security for the bank.

25. He said he had been encouraged right from the start to operate cheque discounting business. There was good profit. He was commended for it. In any event he did not himself discount cheques. It was his junior, Cordeiro, who approved the cheques to be discounted. Up to late 1982 discounted cheques and letters of credit facilities were always met by Texvinyl on due date. Therefore he considered they were good risks and good clients therefore with good reputation.

26. He said that he never approved of the cheque firing system because those cheques never had his initials. He never approved that the interest on discounted cheques should be entered into accrued interest receivable account. He said that a loan of $9.4 million was well within 10% of the overall credit line of $9 million as far as Suppliers Credit was concerned. He had no knowledge that the clients used overdraft account money to pay into the fixed deposit account as security or that the cheques paid to the Suppliers Credit were drawn on associated companies of Suppliers Credit or that the 2nd accused controlled such associated companies. Nor did he know of cheque firing or the use of the accrued interest payable account to accommodate interest payable on discounted cheques. Lastly, he said he never caused the discounted cheques not to be presented.

27. In the event he was convicted of the 1st and the 5th counts. He appealed against conviction on a variety of grounds. The first two grounds may be considered together.

28. The first ground was that the two counts on indictment were invalid because it alleged dishonesty by four means. The judge directed the jury that if the jury were unanimously, or by a majority, agreed on any particular one of the alleged means, they were entitled to convict. It was contended by learned counsel for the 1st accused. that none of these four means of dishonesty as alleged in the 1st count could standby itself. In order to stand by itself at least two of those means had to combine together. When the judge said if they were satisfied as to any one of the means of dishonesty, the jury could convict. He had misdirected the jury. The case of Landy ⁽¹⁾ was cited in support of this proposition.

29. We do not feel that there was substance in this argument. The case of Landy ⁽¹⁾ was very different. The 1st count alleged that the two accused conspired with the others by dishonestly 1) causing the bank to make excessive advances to Suppliers Credit - such advances being inadequatey secured. It was argued that the alleged first means of dishonesty did not mention the element of a loss or a risk to the bank. The jury could find there was a loss unless they found a loss was caused by submitting false and inadequate information.

30. We do not agree. When the term defraud was used in the 1st count it referred to a deception which led the bank to act to its detriment. Detriment must have meant either a loss or unnecessary risk. That was precisely what happened then the bank was caused to advance money on insubstantial and inadequate security. As to submitting false and misleading information it was a separate act concerning the loan reports and the credit reports as set out in the summing-up of the judge. This was another means of causing loss.

31. The third means was causing the bank to discount cheques drawn on accounts of insubstantial and inactive companies and firms under the discount facilities granted to suppliers when there were no underlying commercial transactions. Again there was evidence in support of this charge. This method by itself could lead the bank to act to its detriment. We find that there is no substance in the first two grounds of appeal.

32. Ground 3 was that the learned judge failed to direct the jury as to what primary facts had to be proved beyond reasonable doubt. It was alleged that this was unfair and therefore fatal to the verdict. In the summing-up the judge referred to all the evidence of the various ways in which one could be dishonest. He set out the let accused's defence. When referring to prosecuting counsel's address he said (at page 13):

Now, that might have misled you. I don't think it was a slip of the tongue, actually, because what Mr. Marash meant by 'every issue' was every piece of evidence. He did not mean every ingredient of the charge. He is quite right. In order to find a verdict of a particular defendant on a particular charge, you don't have to find that every piece of evidence that the Crown puts before you is convincing. You don't have to find that. It is sufficient if looking at all the evidence, you find the ingredients of the charge proven, but what you do have to be agreed on is every issue in a charge in the sense that you all have to be agreed there was a conspiracy with another person mentioned, to defraud the bank by one of the means set out. You must be agreed on those matters, but as regards what evidence proves that, you don't have to be agreed. And I think that is the way in which Mr. Marash was using the word 'issue'.

In that context the judge was talking of the different means on which the jury had to be agreed. He was not saying for one moment that the primary facts need not be proved beyond reasonable doubt. Of course, evidence was adduced. There might be a hundred pieces of evidence. One juror might adopt the first 40% of the evidence; another juror might adopt another 30% of the other portion. If they all agreed on the evidence as a whole that the bank was defrauded by one of the four means then they were ad idem. They could convict. We do not see anything wrong with that. The case of Lawrence⁽²⁾, was cited in support of counsel's proposition. But all that the learned Lord Chancellor said (at page 519) was -

A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and. arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts. In the present instance there was only one issue of primary fact, the speed at which the cycle was travelling, and I doubt whether a direction could have been faulted if the jury had simply been told that if they were satisfied that the prosecution had proved that the accused had been travelling at a grossly excessive speed they were entitled to infer that he had been driving recklessly and as a result had caused Mrs. Crowther's death, that if so they should convict, and that if they were not so satisfied they should acquit.

Such were the evidence for the prosecution and evidence for the defence adduced before the jury. If they drew the same conclusion from the evidence, that would be the end of the matter.

33. In the present case there could be no direct evidence as to the intent of the accused. However, the judge having set out the evidence of the prosecution and the evidence of the defence, it was up to the jury to find their conclusions from primary facts. In the case of McGreevy ⁽³⁾,Lord Morris said (at page 436):

In my view, the basic necessity before guilt of a criminal charge can be pronounced is that the jury are satisfied of guilt beyond all reasonable doubt. This is a conception that a jury can readily understand and by clear exposition can readily be made to understand.

Later he said:

In my view, it would be undesirable to lay it down as a rule which would bind judges that a direction to a jury in cases where circumstantial evidence is the basis of the prosecution case must be given in some special form, provided always that in suitable terms it is made plain to a jury that they must not convict unless they are satisfied of guilt beyond all reasonable doubt.

Earlier he said (at page 430):

"There is no set formula for doing justice to the defence in the course of the charge: the fundamental requirements are correct directions in point of law, an accurate review of the main facts and alleged facts, and a general impression of fairness. This was in fact an outstandingly fair charge, devoid of insinuation and in its general approach helpful to the appellant."

The question of primary facts is a matter for the jury. They were the ones to find what other primary facts they could accept. It was from the primary facts that they would. arrive at the conclusion.

34. Ground 4 alleged that the judge failed to direct the jury as to the inferences they were entitled to draw from primary facts. Inferences were for the jury. Whatever comment he made was subject to the acceptance by the jury. We do not think that there is any substance in this ground.

35. Ground 5 alleged that there was no direct evidence of the conspiracy to defraud dishonestly. The learned judge failed to direct the jury that it was only by drawing a compelling inference from primary facts that they could find the 1st accused did so conspire. In this connection it is alleged that the judge misdirected the jury by saying (at page 16):

"That is, if you consider whether steps were taken to deceive the bank, that is, to deceive Head Office, that might help you in deciding whether there was an intention to defraud and also it might help you to decide whether the particular defendant realized that what he was doing was dishonest by ordinary community standards. Because if steps were taken to deceive the Head Office, you might well then say to yourselves, 'Why were those steps taken to deceive the Head Office if they thought that what they were doing was not dishonest by community standards'. Of course, if you ask yourselves, 'Why were steps taken to deceive Head Office ', it might well be that you would think the obvious and correct answer is: 'Because a fraud was in progress and they knew it or the particular defendant knew it and he also knew he was being dishonest and that is why steps were taken to deceive.' If you can think of any other plausible answer, then of course, you would give it what weight you thought appropriate."

It is argued that by this direction the judge was virtually telling the jury that they could decide the case on the balance of probability. We do not see it that way. The judge was commenting that there were two days, of drawing inferences. One was. that the accused knew by ordinary standards whether the act he perpetrated was dishonest or not. The judge went on to say - if there was a plausible answer to that he might not have known that the ways he conducted the matter was dishonest, then the jury could give it whatever weight they thought fit. Although it was not said explicitly, it was implicit in this direction that the jury should not draw the inference that such acts were dishonest unless the inference was compelling.

36. Ground 6 alleged that the judge wrongly invited the jury by comment to draw inferences adverse to the 1st accused, which inferences were, upon the evidence, speculative. A list of such comments had been advanced and cited to us. We do not feel that any useful purpose will be served by setting them out one by one. Suffice it to say that these were all the kind of comments which a judge was entitled to make. However he said to the jury (at page 4):

"As regards, however, my other function in this charging you or summing-up to you, that is, to try and assist you in your approach to the evidence, you are not in any way bound by any view that I express. In fact, there is a positive duty on you to reject any view that I might have, unless it is a view that appeals to you yourselves as being correct, and you decide to adopt it.

 

        If I give any impression of what bits of the evidence I would believe, or what conclusions I would draw from the evidence, or what inferences I would make, or even what decision I would eventually come to on the case, if in any way you get any impression of my views of those matters, you must put my view out of your mind unless it is a view that appeals to you of your own reasoning as being correct, because that is your function in the case. Your function is to consider the evidence, apply the law to the evidence and find - decide what you find proven, and of course eventually decide whether guilt has been proven. That is your function in the case and as regards that function, you are in no way bound by any views that I might have."

It was made abundantly clear that the jury, were the sole judges of fact.

37. Ground 7 was abandoned.

38. Ground 8 alleged that the learned judge having given a warning with regard to the danger of convicting on accomplice evidence without corroboration nonetheless indicated to the jury that if they thought that the whole picture fitted together well, they could rely upon such evidence, but the judge failed to warn them of mistaking the shadow for the substance". That was a phrase that was borrowed from the case of Kilbourne ⁽⁴⁾. It is alleged that the judge by means of an unfair comment was in fact inviting the jury to convict. They had been warned that many witnesses were in fact accomplices. Having given that warning and having pointed out that much of the evidence overlapped he went on to say (at page 27):

"You can consider how the evidence of such witnesses fits in with each other, and with the other evidence in the case, or where it appears to clash or not fit in comfortably together.

 

        You can look at all the evidence considered together, and decide whether it excludes the possibility of jointly fabricated stories. It might appear to you that if their evidence were untrue, the only explanation of it fitting together so well, would be that they jointly fabricated it or else someone else fabricated for them, and it might seem to you that having regard to the type of witnesses they are, and the manner in which they gave their evidence, and to the existence of contemporaneous documents - even though made by them - it might appear to you that the whole matter is so complex, and shows such an underlying unity, that the risk of concoction by them, or by someone else and they managing to carry it out, it maybe that you consider that possibility is dispelled. It might well be that the evidence of such witnesses fits in so well with the other evidence in the case that, keeping the warning in mind, you find that there are no irreconciliable or disturbing discrepancies, but rather that it has a convincing cohesion, and that it paints a picture of overall' reliability.

        On the other hand you might conclude that, the picture is one of discord, or out of focus and untrue. These are matters for you, of course, as judges of fact. Of course Mr. Reyes as I told you, has suggested that ICAC got the witnesses to give false evidence, and of course you will consider that suggestion, and you give it any weight you think it deserves."

It was said that by such direction the judge was inviting the jury to convict on accomplices evidence. In fact the judge was commenting on the warning he had given to the jury earlier that they must not convict on accomplice evidence without corroboration; and that the evidence of one accomplice could not corroborate that of the other. Finally he said that the jury first had to find the accomplice evidence credible, then they should proceed to consider the warning.

39. Ground 9 alleged that the learned judge wrongly directed the jury that the relevant Crown witnesses were more or less guiltily involved thereby usurping the function of the jury to find whether a conspiracy to defraud had been proved to exist. It was alleged that the judge by his direction to the jury practically branded the whole staff of the branch office as accomplices. Then he narrowed it down to the head of the branch, namely the 1st accused. He practically invited the jury to point the accusing finger at the 1st accused. As we understand it the judge here did no more than tell the jury that these witnesses were tainted and should be treated as accomplices. The judge in so doing was acceding to the request of the Defence. Having told the jury that certain people were tainted he said (at page 23):

"You might think something similar could be said about the branch employees. These are matters for you. But in any event, I direct you to go on the basis that they were guiltily involved."

It might have been better to describe them as people involved in the irregular transaction rather than people guiltily involved. But this direction was made at the invitation of the defence. What the judge meant was that they knew what they were doing but despite their knowledge of the irregularity they merely obeyed the instruction of their superior. It was in that way the judge had made clear they were tainted. The judge had told the jury that whether they were accomplices was a matter for theme It was their opinion, their finding of facts that counted. It was a direction that was beneficial to the accused. In the event the 1st accused was convicted.

40. In all the circumstances we feel unable to interfere with the verdicts or to criticise the judge in the summing-up.

41. For these reasons the 1st accused's application for leave to appeal against conviction is refused.

(1)    (1981) 72 Cr.App. Rep. 237

(2)    1982 A.C. 510

(3)    (1973) 57 Crim. App. Rep. 424

(4)    (1973) 57 Cr. App. R. 381