HKSAR v. PETER RAYMOND BAIRD

CACC 217/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 217 OF 2012

(ON APPEAL FROM DCCC NO. 242 OF 2011)

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J U D G M E N T

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Hon Stock VP:

1.  The applicant was convicted in May 2012 of an offence of fraud and sentenced to 3 years 3 months’ imprisonment. He now seeks leave from myself as a single judge to appeal both conviction and sentence.

2.  It is not necessary for present purposes to set out the allegations against him or the gravamen of the evidence that was adduced at trial because they are summarised succinctly in the Reasons for Verdict of Judge Geiser.

3.  The applicant has addressed me at some length today, which is not said as a criticism at all because there are many grounds which he wished to cover. 

4.  He agrees, before this Court as he did before the court below, that a fraud was indeed practised on the main prosecution witness but he emphasizes two matters: first that that was a fraud, he says, which was practiced on his company as well and secondly, and more importantly, he asserts (as he did in the court below) that he was not himself party to the fraud which was perpetrated.  That of course was the key issue which the judge in the court below was enjoined to, and did, address. 

5.  The judge has rendered a careful analysis of the evidence which was constituted by the evidence in the main, apart from admitted evidence, of PW1; the credibility of which was under scrutiny by the judge and on the applicant’s behalf by his counsel and the credibility of which is under attack by the applicant in his grounds of appeal.

6.  The judge has indicated that those areas of objective evidence which went in support of the assertions of PW1 particularly but not exclusively the fact of the escrow extension agreement after funds had been moved out. 

7.  It is suggested by Mr Baird today that PW1 was fully aware that the funds went out before the signing of the Escrow Extension Agreement on 4 December which begs a cardinal question from myself which is why the matter was not put to PW1 as the applicant says it was not put.  It seems to me clear enough from the passages in the transcript to which I have just referred that PW1 was in effect saying that he was not aware that the funds had been transferred out and that had he been, he would taken action; but be that as it may and putting that aside for the moment, the applicant’s answer to my question as to why it was not put on his behalf, namely the applicant’s behalf, to PW1, that PW1 was well aware that funds had been moved out, is that a deliberate decision was taken not to put that question to PW1, a decision taken by his team, because a truthful answer could not be expected from PW1.  I have to say this is inherently difficult to accept and reflects also on the credibility of the allegations made by Mr Baird against his counsel.

8.  Applications have been made also to adduce fresh evidence.  Some of that evidence is not admissible.  It is new evidence adduced for the first time, some of it sworn as recently as on 13 April of this year, which was evidence that could have been adduced at the trial.  Other evidence not recently produced but which was in existence at the date of the trial was not produced and no sound basis for now adducing it is shown.

9.  In relation to assertions that PW1 was improperly looking at documents during the hearing, my attention has correctly been drawn by Mr Baird to the fact that this was a question raised by counsel for him at trial and it follows that the judge was aware of it and has made his decision in the light of that fact. 

10.  Mr Baird has spent some time today addressing the question of counsel’s alleged incompetence and of unhappiness within the team and an unsatisfactory relationship, which apparently, according to him, enured as between him and his legal team and of suggested conflicts within the team.  I have had the opportunity of hearing Mr Baird for something in the order of an hour and a half and I am not impressed by the credibility of his complaints against his team.  Counsel concerned is highly experienced counsel and there are many examples of inherent unlikelihoods in the suggestions that have been put to me; one of which is a contention that it was not made clear to Mr Baird by his counsel that the key and cardinal issue in the case was his own state of mind that it was not made clear to him was that what was important was his, the applicant’s, own knowledge and belief and his actions.

11.  On the basis of Mr Mitchell’s affirmation, there was something in the order of 18 hours of meeting between him and his client; on the basis of Mr Baird’s assertions that was less than that, but hours of the meetings nonetheless.  It is not in my judgment believable that that issue, which was the only issue, or certainly the central issue in the case, was not made clear to Mr Baird.  I am not persuaded that the applicant has an arguable case in relation to counsel’s competence. 

12.  Mr Baird has raised a new ground this morning, suggesting that his arrest was unlawful.  I am not on the face of it impressed by the ground but in any event it is not an issue that was raised at trial and I do not think it open to Mr Baird to raise it now.  

13.  I have considered all the grounds advanced by the applicant in relation to conviction and I see no arguable merit in any one of them and, accordingly, the application for leave to appeal conviction is rejected.

14.  The reasons for sentence are relatively short and straight forward.  The judge adopted a starting point of 3½ years’ imprisonment which he discounted by 3 months to take account of the delay between the arrest and the time of the trial.  I see nothing in the reasoning of the judge or in his approach which is amenable to a realistic appeal and accordingly the application for leave to appeal sentence is also rejected.

15.  It is open to Mr Baird to renew this application to the full court.  If he wishes to do so he must file his notice of intention to proceed, within 14 days but I take the opportunity of reminding him of the provisions of section 83W of the Criminal Procedure Ordinance, Cap. 221 which says that:

“(1) The time during which an appellant is in custody pending the determination of his appeal shall, subject to any direction which the Court of Appeal may give to the contrary, be reckoned as part of the term of any sentence to which he is for the time being subject.”

The phrase “subject to any direction which the Court of Appeal may give to the contrary” empowers a court to order what is commonly called loss of time; in other words, in cases which the court considers to be entirely without merit it has the power to order that the time or part of the time spent by an appellant in custody pending the determination of his appeal shall not be reckoned as part of the term of any sentence to which he is for the time being subject.  I have to say, though it is a matter ultimately for Mr Baird and it is not for me to give legal advice, that is that a provision of which he should take into particular account were he to seek to renew his application.