HKSAR v. NG CHUN TO RAYMOND

CACC 65/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 65 OF 2015

(ON APPEAL FROM DCCC NO. 405 OF 2009)

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J U D G M E N T

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1. The applicant sought leave to appeal against his conviction and sentence after trial by District Court Judge Yiu on 9 January 2015 of four charges of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200 and against the sentences of 4 years and 6 months’ imprisonment imposed in respect of on each charge, which sentences were ordered to be served concurrently.

2. The trial was a retrial, following the order of this Court on 31 July 2013 allowing his appeal and quashing his convictions at the first trial.  In consequence, the applicant was sentenced to 3½ years’ imprisonment on each of the four charges and 15 months’ imprisonment on another charge, namely doing an act tending and with intent to pervert the course of public justice.  Six months of the sentence of imprisonment imposed on the latter charge was ordered to be served consecutively to the other sentences, so that the total sentence imposed on the applicant was 4 years’ imprisonment.  On 8 November 2013, this Court ordered that the applicant be re-tried on the four conspiracy to defraud charges.  The respondent made no application for a retrial in respect of the perverting the course of justice charge.  Having served 17 months’ imprisonment of the sentence imposed on him following his convictions, before he was granted bail pending appeal, the applicant has since served the sentence imposed on him in the retrial and has been discharged from prison.

The charges

3. The Particulars of Offence of each of the four charges alleged that on and between various dates, in the overall period between 1 September 2005 and 27 May 2008, the applicant conspired with stipulated persons and persons unknown to defraud various named companies, who acted as Liquidity Providers, and such companies, firms and persons as might be induced to trade in particular derivative warrants issued by stipulated companies by dishonestly:

(a)  causing an employee(s) of a stipulated Liquidity Provider  to render favorable prices for derivative warrants issued by a stipulated company to be quoted to people connected with the applicant;

(b)  creating a false or misleading appearance of active trading in particular derivative warrants; and/or

(c)  offering secret profits to the said employee(s) as an inducement to or reward for doing or having done an act referred to in (a) and (b).

4. The period during which it was alleged that the respective conspiracies had occurred, the four Liquidity Providers and the Issuers of the derivative warrants stipulated in each of the four charges were respectively:

Charge 1: between 1 September 2005 and 27 May 2008, CLSA Limited and Calyon Financial Products (Guernsey) Limited;

Charge 2: between 1 January 2007 and 27 May 2008, Citigroup Global Markets Asia Limited and Citigroup Global Markets Holdings Incorporation;

Charge 3: between a date unknown in 2007 and 27 May 2008, Standard Securities Asia Limited and Standard Bank PLC; and

Charge 4: between a date unknown at the end of 2007 and 27 May 2008, Taifook Securities Company Limited and Dresdner Bank AG.

The prosecution case

5. The prosecution case was that the applicant had orchestrated a derivative warrant ‘pushing’ scheme using an office in the Mainland to trade in derivative warrants listed in Hong Kong. He did so through Cheung Ching Ho (“CCH”) who in turn caused others to trade in derivative warrants using various trading accounts in different brokerage firms (“dummy accounts”) to create a false impression of active trading by buying and selling selected derivative warrants between the dummy accounts and also the Liquidity Providers, thereby enhancing their prices “pushing”, and luring other investors to trade directly in those warrants.  At trial the account holders of the dummy accounts were referred to as “heads” and those that caused that trading at the behest of CCH were referred to as “hands”.

6. With the assistance of traders employed by the derivative warrant issuing companies, referred to as “Insiders”, the warrants were sold back to the Liquidity Providers or to unwitting investors, referred to as “Fish”.

7. In proof of its case, the prosecution adduced evidence at trial from a number of the traders employed in the Mainland office who operated the pushing scheme, most of whom were stipulated as co-conspirators in the various conspiracies the subject of the four charges and each of whom gave evidence under and an ‘Immunity’ from prosecution.  They have been recruited into the operation by CCH who told them that his boss, from and to whom he received and made daily telephone calls in connection with the warrant pushing, was “Raymond”.  It was the prosecution case that having regard to the evidence overall, Raymond was the defendant.

2003-2005

8. In addition, those witnesses testified that earlier they had been recruited into a warrant pushing scheme by CCH, which operated in Hong Kong in the period 2003 to 2005.  It was their evidence that, similarly, CCH said that the daily phone calls that he received and made in respect of trading in the warrants were with a person called “Raymond”.

9. Further, the prosecution also relied on circumstantial evidence, which the judge described in his Reasons for Verdict as including:[1]

“ …the common travel records of the Defendant, CCH and co-conspirators; the handwritten notes containing warrants information and monthly statements of dummy account seized from Defendant’s office; substantial cash found in Defendant’s safe; the surveillance evidence showing close connection between insiders and the Defendant; cash withdrawn from dummy account eventually taken by a lady associated with the Defendant; the device reports indicating Defendant sending warrant information and also with hundreds of telephone calls to the alleged insiders.”

Finally, the prosecution relied on the evidence of Ms Stella Fung, who gave evidence as an expert.

The defence case

10. Although the applicant did not avail himself of his right to give evidence himself, nevertheless he called evidence in the trial.  Ms Noel Chan and Mr Francis Kwok testified that the applicant and his brother, Michael Ng, operated business called HK Investor Limited which, inter alia provided investment seminars, workshops and promotional material in respect of financial education to both the public and financial institutions.  Ms Chan spoke to the operation of the business, of which she was employed as a sales manager, in the period June 2007 to July 2008, whereas Mr Kwok spoke to the earlier period of 2006 and 2007.  Mr Kwok engaged the services of HK Investor Limited to provide consultancy services.  Also, he participated as a speaker in seminars organised by them.

11. It was submitted on behalf of the applicant, that his earlier employment as a senior trader at Calyon, where the alleged Insiders were his former colleagues, together with his participation in the business of HK Investor Limited explained his possession of trading records of warrants, and his contacts with the traders in the Mainland office and the Insiders.

12. It was the defence case that the trading pattern of the derivative warrants failed to establish the existence of an unlawful scheme.  It was submitted that the Liquidity Providers may have bought back derivative warrants for purposes of hedging, offering competitive prices as a marketing strategy.

The grounds of appeal against conviction

Grounds 1 and 2

2003-2005

13. By ground 1 of the Amended Perfected grounds of Appeal against Conviction, Mr Peter Duncan SC submitted that the judge erred in admitting and relying on the evidence of events which occurred in Hong Kong prior to the period of time in which it was alleged that the conspiracies, the subject of the four charges, occurred.  The evidence of the Hong Kong events was irrelevant to the charges and, therefore, should have been ruled inadmissible.  Further, the judge failed to direct himself that he was not entitled to infer from the evidence that the applicant had committed similar offences or that he had a propensity to commit the offence.  Also, it was suggested that, despite stating that he would draw no inference adverse to the applicant as to the identity of the “Boss” in the warrant pushing scheme in Hong Kong in 2003 to 2005, the judge had done just that.[2]

14. By ground 2, it was submitted that although obliged to do so, the judge failed to direct himself as to the use to which the evidence of witnesses for the prosecution could be put against the applicant of events occurring in Hong Kong prior to the overall time period during which it was alleged that the conspiracies occurred.  He failed to direct himself as to the inferences which may have been open from such evidence or, conversely, the questions which may have arisen without the evidence.

2005-2008

Ground 3

15. By ground 3, it was submitted that the judge erred in admitting the evidence of prosecution witnesses, which was substantially hearsay and inadmissible in that it was evidence of what CCH had told them.  In so far as the evidence tended to show, and was relied on by the prosecution for that purpose, that the applicant was “calling the shots” in the Mainland operation, that he knew the Insiders and the profit was delivered to him, that evidence was inadmissible as to its truth.  So, the judge erred in relying upon such evidence against the applicant by operation of the co-conspirator’s rule.  In doing so, the judge failed to appreciate that there was insufficient independent evidence to show that the applicant was a party to the charged conspiracies so as to invoke the co-conspirator’s rule. 

Ground 4

16. By ground 4, it was submitted that the prosecution failed to prove the existence of the four alleged conspiracies.  First, there was insufficient evidence to prove the averment in particular (a) of the Particulars of Offence of each of the charges, namely “causing an employee or employees based in Hong Kong of [the related warrant issuer] to render favourable prices to be quoted”.  Ms Stella Fung did not give any opinion as to whether “favourable prices” were quoted by Liquidity Providers or market makers.  Her report[3] did not address all the activities in the “dummy accounts” in all 30 brokerage firms for all the warrants traded by the four issuers over the overall conspiracy period.  There was no evidence of what the proper market price ought to have been.  Finally, it was submitted that most of the prosecution witnesses acquired warrants at market price, in the same automatic queuing system shared by the public.  There was no evidence of any pre-arrangement or preferential treatment or pricing by any alleged insiders.

17. Secondly, there was insufficient evidence to prove the averment in particular (b) of the Particulars of Offence, “creating a false or misleading appearance of active trading in the said derivative warrants”.  The judge erred in relying on activities in the alleged 43 “dummy accounts” in support of the alleged conspiracy when the prosecution witnesses had not identified all of those trading accounts.

18. Similarly, the judge erred in concluding that:[4]

“ the whole plot was clearly by controlling various dummy accounts to trade the selected DW’s back and forth, there would undoubtedly create a false or misleading appearance of active trading in the DW and induced the general public to trade”

Apart from seven prosecution witnesses[5], none of the other account holders gave evidence.  The overall trading pattern did not necessarily support the allegation made in this particular.

Grounds 5 and 6

19. By grounds 5 and 6, it was submitted that the judge had failed to properly evaluate the evidence produced in the defence case and the evidence overall which was favourable to the defence.  Given the evidence of Ms Noel Chan and Mr Francis Kwok that the applicant operated Hong Kong Investor Company, an investment education seminar business, the circumstantial evidence did not provide a sufficient evidential basis to establish knowing participation by the applicant in the alleged conspiracies.  In determining that the Liquidity Provider was “not obliged nor under any duty to buy back” the derivative warrant, the judge failed to take into account the evidence of prosecution witnesses, Mark Bewley[6] and Jonathan Chung[7], that banks bought warrants for purposes of hedging.  Also that, as a new participant in the market, Standard Bank was pricing aggressively in order to increase market share.  Further, then Ms Stella Fung had testified that Liquidity Providers bought options to hedge their positions.

20. In stating that Liquidity Providers, “could always adjust the price manually” the judge failed to take into account the evidence of prosecution witnesses, Lam Lok Kay and Kenneth Hon,[8] that the Liquidity Providers monitored the pricing of warrants to ensure traders acted fairly in terms of pricing.

Grounds of appeal against sentence

21. It was submitted that the judge had erred in imposing a sentence of 4½ years’ imprisonment, which was manifestly excessive and/or wrong in principle, having erred in stipulating a starting point for sentence of 6 years’ imprisonment.  The judge gave no reasons for identifying that starting point.  At the first trial, the applicant had been sentenced to 3½ years’ imprisonment on each of the four charges.  This Court was invited to consider the sentences imposed in HKSAR v Cheung Sing Chi [9]and HKSAR v Mo Yuk Ping,[10] to which District Court Judge Yau, the judge in the first trial, had been referred.  The judge in the retrial gave no reasons that justified the significant increase.  In a retrial, where the court sentences the defendant for the same offences of which he had been convicted at the earlier trial, “so far as concerns the head sentence, that passed on the first trial should ordinarily not be exceeded if the new trial results in conviction again.” [11]  A sentence imposed after a retrial should not exceed the sentence imposed originally unless there is a good reason for an increase.[12]

22. Next, it was submitted that the judge had failed to take into account fully the mitigating factors advanced on behalf of the applicant.  First, it was to be noted that the alleged offences took place between 2005 and 2007, whereas the applicant had been arrested in May 2008 and charged in February 2009.  Secondly that although the applicant’s first trial, which commenced in 2009, had been completed with his conviction and sentence in April 2010 his appeal against conviction to the Court of Appeal, of which he gave notice in May 2010, had been delayed by criminal proceedings brought against CCH and ICAC officers who were involved in the prosecution of the applicant.  Although the hearing took place in March 2013 judgment, allowing the appeal, was not delivered until July 2013.  As a result, albeit that he had been granted bail pending appeal in September 2011, the applicant had served 17 months’ imprisonment of the sentence of 3½ years’ imprisonment which had been imposed on him.  The applicant was in no way responsible for any of the delay in the appeal process.

23. Thirdly, the applicant’s first trial was both lengthy and costly as had been his appeal. Fourthly, the applicant, his wife and family had suffered considerable stress as a result of delay in proceedings and the fact of his retrial.

The respondent’s submissions

24. In her submissions for the respondent, Ms Peggy Lo opposed the grant of leave to appeal against conviction and sentence.

Grounds 1 and 2

25. Ms Lo acknowledged that the evidence led in the prosecution case of Wong Ho Yin, Leung Yiu Kei and Lee Wai Ming [13] established that in 2003 each of them had worked at the direction of CCH in a warrant pushing scheme, the first two in warrants issued by CLFA and the third in warrants issued by Calyon.  The first two witnesses did so until 2005.  Leung Yiu Kei and Lee Wai Ming each said that they had been told by CCH that he received instructions as to trading from Raymond, who worked at CLSA/Calyon.[14]

26. However, Ms Lo said that the prosecution did not rely upon evidence of events that occurred in Hong Kong prior to the overall period stipulated in the Particulars of Offence of the four conspiracies to prove the guilt of the applicant or the terms of the scheme in the Mainland.  Rather, it relied on the evidence as providing the “setting in context in which the offence occurred”, in particular the circumstances in which the operation had been set up in the Mainland.  Wong Ho Yin and Leung Yiu Kei [15] each testified that as the operation in Hong Kong was closed down they had been recruited again by CCH to work in the Mainland to participate in pushing derivative warrants.

27. Ms Lo submitted that it was clear that the judge understood the limitation on the use of that evidence.[16]

Ground 3

28. Ms Lo submitted that whilst various prosecution witnesses who operated the Mainland scheme testified that they had been told by CCH that the ‘Boss’ of the operation was variously called Raymond/Siu Bu Leung/Sai Ray and Raymond Ng, there was other evidence that the applicant was that person.  Whether or not there was a ‘Boss’ behind CCH and whether that was the applicant was, as the judge noted,[17] the issue in the case.  First, the judge determined:[18]

“ …as to the Mainland operation, there were clearly ample and sufficient independent evidence which could link the Defendant to the conspiracies as charged.”

29. Then, the judge went on to say:[19]

“ Thus the co-conspirator’s rule could apply and the court could consider all those acts and declarations of those co-conspirators made in furtherance of the conspiracy…”

30. In addition, Ms Lo pointed out that the judge had revisited the independent circumstantial evidence, which he had summarised at paragraph 249 of his Reasons for Verdict, and determined that it established that:

(i)  the applicant and other alleged co-conspirators travelled to and from Macau and Hong Kong on the same day on many occasions;[20]

(ii)   surveillance evidence showed the close connection between the applicant, CCH and various insiders; cash withdrawn from the dummy accounts being passed by CCH or Stephen Chan to the applicant’s secretary, who took the money to his office and deposited cash into bank accounts associated with the applicant;[21]

(iii)   handwritten notes, notebooks, computer printouts, monthly trading statements of a dummy account holder and an Excel file seized from the applicant’s office contained information which matched the trading records of the dummy accounts;[22]

(iv)   an SMS message from the applicant to an Insider, Dickson Cheung, contained the reference numbers of warrants issued by Citigroup traded by the co-conspirators using the dummy accounts;[23]

(v)   two safes found in the applicant’s office which contained $2,278,500 and $2,792,000 in cash respectively; together with $34 million in cash found in a safe deposit box of the applicant’s wife; and over $110 million in cash deposited into the bank accounts of the applicant and his wife;[24]

(vi)   the cash in the possession of the applicant and his wife was inconsistent with their known legitimate income;[25]

(vii) hundreds of telephone calls between the applicant, insiders and some dummy account holders.[26]

Ground 4

31. Ms Lo submitted that there was sufficient evidence to prove each of the three stipulated particulars set out in the Particulars of Offence of each of the charges.

As to particular (a)

32. Ms Lo submitted that there was direct evidence from the prosecution witnesses to prove that they caused employees of the relevant warrant issued to render favourable prices to them: the insiders would use a “double order” as an invitation to the conspirators to buy the warrants, which were then sold to them [27], insiders bought back unsold warrants [28], on most occasions at a price which enabled the conspirators to make a profit.[29]

As to particular (b)

33. There was direct evidence from prosecution witnesses to prove that, as was their purpose, their trading created a false or misleading appearance of active trading in the warrants.[30]  It was the opinion of Ms Stella Fung, an expert witness, that in respect of the period in which she had reviewed the trading of the conspirators their activities accounted for 94% to 99% of the market turnover.[31]

Grounds 5 and 6

34. Ms Lo submitted that the judge demonstrated clearly that he understood the nature of the defence advanced through the testimony of two witnesses called in the defence case, namely that through the business activities of HK Investor the applicant was engaged in a legitimate business which had business dealings with brokerage firms, derivative warrants issuers and accredited providers, so that “…normal social gathering with all these personnel would not be surprising.” [32]  Moreover, she contended that not only had the judge rejected that evidence, as explaining his financial resources, but also he gave sound reasons for doing so.[33]

35. Of the defence case that there were possible innocent explanations for the contact between the applicant and the alleged insiders, Ms Lo submitted that the judge had identified and considered the various elements of the circumstantial evidence: the surveillance evidence;[34] the SMS messages between the applicant and Dickson Cheung, a stipulated co-conspirator, which contained information in respect of warrants traded by the co-conspirators;[35] the Excel file found on a computer at the home of Khalid Chaneb, a stipulated co-conspirator, which included warrant trading records which matched the trading records of the co-conspirators;[36] the numerous telephone conversations between the applicant and the stipulated co-conspirators[37]; and the timing of the pushing of the respective warrants matched the movement of the co-conspirators between the four relevant warrant Issuers.[38]  Ms Lo invited the Court to note that the judge said that considered individually the contact between the applicant and the alleged Insiders might be considered usual communication, but when considered together, with the other circumstantial evidence, the judge was entitled to determine as he did that, “the only irresistible inference must be that the defendant was surely the mastermind behind CCH orchestrating the whole pushing scheme has conducted by the Mainland crew.” [39]

36. Ms Lo submitted that the criticism that the judge failed to understand the mechanism of trading derivative warrants and the role of the Liquidity Provider was unfounded.  Whilst the Liquidity Provider was required to provide continuous liquidity to the market, there was no obligation to buy back warrants.  The judge noted that, whilst price offered by the Liquidity Provider was usually computer automated, the trader acting for the Liquidity Provider could adjust the price manually.[40]  An overriding input by a trader might not be picked up.[41]  Losses within an acceptable range were tolerated.[42]

Sentence

37. In opposing the application for leave to appeal against sentence, Ms Lo reminded the court that the sentence of 3½ years’ imprisonment imposed on the applicant on his conviction in the first trial was not considered by this Court, given that the application for leave to appeal against conviction was allowed and the applicant’s convictions and the consequent sentences quashed.

38. Ms Lo invited the Court to regard as factors in aggravation in the commission of the serious offences committed over a period of three years the following factors:

(i)  the offences were committed on a large scale, involved more than 10 conspirators, 50 ‘dummy accounts’ in 27 securities firms;[43]

(ii)  there was a cross-border element in the commission of the offences;[44]

(iii)   there was considerable sophistication involved in the offences, which required close monitoring of daily trading activities;

(iv)   having placed himself behind CCH in the commission of the offences, the applicant made it more difficult for the authorities to identify his role;

(v)  the applicant occupied the role of mastermind of the scheme;[45]

(vi)   substantial profits of about $150 million ended up in the possession of the applicant and his wife;[46] and

(vii) the adverse impact on Hong Kong’s reputation as an international financial centre.

39. Ms Lo submitted that in all those circumstances the judge’s stipulation of starting a sentence of 6 years’ imprisonment [47] was not manifestly excessive.  She suggested that the judge’s reduction of the starting point taken for sentence to 5 years’ imprisonment to reflect the fact that, “… (a) substantial part of the prosecution case was admitted and that it was a retrial where no doubt this matter had dragged on the defendant through the years” together with an additional reduction of 6 months’ imprisonment to reflect the fact that delay, “was due to the misconduct of the investigation officers and not from the defendant” was a generous discount.

A consideration of the submissions

Grounds 1 and 2

40. As Mr Duncan pointed out in his submissions, objection was taken at the outset by Mr Bruce SC, who represented the appellant at trial, to the prosecution adducing evidence of the warrant pushing in Hong Kong in the period 2003 to 2005.

The prosecution Opening

41. The prosecution written Opening asserted of Lee Wai Ming, Leung Yiu Kei and Wong Ho Yin[48] that, together with others, they were “involved in the warrant pushing activities in a Sheung Wan premises between 2003 and 2005 and they were recruited in October 2005 by CCH to join the scheme pushing warrants on the Mainland.” [49]  Having noted that the applicant, “was employed by CLSA as a Floor Trader on 1 November 1998.  On 1 December 2004, the defendant was transferred to work for Calyon HK branch…”, it was asserted that, “Raymond(,)  who was a trader at CLSA(,) acted as an insider for CCH and his group of brothers.  The operation was based from a premises in Sheung Wan.” [50]  Finally, it was asserted that the “co-conspirator prosecution witnesses” would testify of having been told by CCH that, “…it was “Raymond” who conspired with CCH to set up the Mainland base to conduct the false trading of DW’s, gave regular instructions to the members of the Mainland base as to how the warrant pushing should be conducted, liaised with the insiders and received profits from CCH.  It is the prosecution case that the Defendant was the “Raymond”.” [51]

Defence objections to the evidence to be adduced by the prosecution

42. In a ‘Preliminary Note on Objections to the Admissibility of Evidence’ [52] dated 29 August 2014, objection was taken by Mr Bruce that “all the evidence of (sic) concerning “Raymond”…is inadmissible hearsay.  PW1-PW7 in various ways and in varying degrees of detail described critical aspects of the conduct of “Raymond” on the basis of what they have been told.” [53]  Nevertheless, he suggested that, “For the practical management of objections to hearsay which might be admissible under the co-conspirators’ rule, the Court may hear PW’s evidence on a de bene esse basis in order to decide on the admissibility of such evidence.” [54]

43. At the hearing on 2 September 2014, the judge having invited the prosecution to produce a skeleton in reply, the following interchange occurred:[55]

“ MR BRUCE : What we were trying to do with this was just to alert you to the issues rather than make an argument at this stage…

Because the authorities, as I understand them, suggest, amazingly, even in jury trials, not just with our professional judges, that we hear the evidence and make the…

COURT: Yes, that can be dealt with later…”

The prosecution’s reply

44. In a written reply to the defence written submissions, dated 3 September 2014, it was suggested by counsel for the prosecution that, “It appears to be common ground that for the Court to be able to properly determine the issue of admissibility the Court should first hear the evidence from the prosecution witnesses.” [56]  Of the scheme operated in 2003-2005, it was contended:[57]

“ In the pushing exercise CCH told DW to speculate in warrants issued by Calyon and Raymond or Siu But Leung acted as the insider at Calyon.

The prosecution says this evidence is admissible as providing the setting and context in which these offences occurred.  The evidence is relevant as part of a continual background or history of the offences with the proviso that Court should remind itself that there can be no inference the defendant had committed such offences or that he is the sort of person who has the propensity to commit the offence.”  [Italics added.]

45. Mr Mitchell went on to remind the judge, providing him with copies of the authorities, that, “the law relating to evidence of uncharged acts was considered by the Court of Appeal in HKSAR v Hsu Ming Mei [58]…” and by the Court of Appeal of England and Wales “in R v Pettman.” [59]

46. At an early stage in the evidence-in-chief of Wong Ho Yin, after he had testified that after 2000 he had dealings in securities with Calyon, at which he had heard that a person called Raymond or Siu Bat Leung worked, Mr Bruce repeated his objection:[60]

“ MR BRUCE: Your Honour, all he does, I know what’s coming. You don’t. The conduct for the next couple of years involves assertions of criminality against the gentleman by the name of Raymond to the -- and it’s not the subject of the charges before this court. And, in my submission, whatever relevance it might have, it’s inadmissible because it involves other conduct. Now, it may be that my learned friend has got a basis for admitting this, but until their basis is properly explained, I object to it.

MR MITCHELL: In fact I did set out my basis in the reply which I submitted to...

COURT: Very well.

MR MITCHELL: ...to the court yesterday. That’s the basis upon which it was -- it’s going to be led. I...

COURT: It seems you are talking about setting out all the background circumstances leading to the offence.

MR MITCHELL: That’s right. It’s -- it was set out.

MR BRUCE: All right.

MR MITCHELL: I clearly split the evidence between the background circumstances and those which were actually within the charge period.

MR BRUCE: Background, there’s relevant background and irrelevant background. At the moment I say it’s irrelevant. This is not part of the -- the more fundamental objection I make and that’s why I am raising it now rather than sitting tight on it, so that we all know where we stand. It may be you want to hear it provisionally...

COURT: Yes.

MR BRUCE: ...and rule on it later. I -- I am in the hands of professional judges as opposed to a lay tribunal and I am content with that. But as long as the court knows, the -- I think it’s the 2003 to...

COURT: Yes.

MR BRUCE: ...2005 period, I say, is inadmissible.

COURT: Your objection is noted.  And that of course all depends on what this witness is going to say and how much an extent...”

47. In those circumstances, the prosecution adduced evidence-in-chief from various stipulated co-conspirators, giving evidence under immunity, of their participation in a scheme, together with CCH, in 2003 to 2005 in pushing warrants in which they have heard from CCH that ‘Raymond’ assisted and participated in the operation conducted in Hong Kong.  Furthermore, they testified that, similarly, they were told by CCH that ‘Raymond’ assisted and participated in the operation in the Mainland.

Close of the prosecution case

48. At the close of the prosecution case, Mr Bruce articulated his objections to the admissibility of evidence led in the prosecution case.  First, he did so by way of lengthy written submissions and secondly, by oral submissions.  Objection was taken in the written submissions to the evidence of Lee Wai Ming, Leung Yiu Kei and Wong Ho Yin [61] in respect of the warrant pushing in Hong Kong in the period 2003 to 2005:[62]

“ For those who worked in and testified to the existence of the HK Events between 2002-September 2005, their general evidence of the HK Events (other than their personal participation) and any hearsay description of involvement by “Raymond” / “Siu But Leung” / “Raymond Ng” / “Sai Ray” precedes the PRC Scheme…and is certainly not evidence of the PRC scheme. It is plainly irrelevant and therefore inadmissible to proving the existence/terms of the PRC scheme. They are certainly not admissible as mere “background” evidence, as the first criterion of admissibility is relevance”. [Italics added.]

49. As Ms Lo pointed out, in his oral submissions Mr Bruce made clear to the judge that his objection was not to the evidence of the prosecution witnesses in respect of their pushing of warrants in Hong Kong.  Rather, it was restricted to their evidence of what they testified CCH had told them of Raymond and his role.  Mr Bruce said:[63]

“ As far as the Hong Kong end of things…What we say is this. The people who said, “We push warrants in Sheung Wan,” can say, “We push warrants in Sheung Wan.” That’s fine. That “We-- you know, one was the computer guy, one was something else. Broadly speaking, that’s fine. But that “Sai Ray, Siu Bue Leung, etc was in,” that’s out, because that was information sourced from Cheung Ching Ho.”

50. In his written submissions, Mr Bruce went on to contend:[64]

“ The sole discernible purpose of the prosecution admitting into evidence inadmissible hearsay descriptions by Cheung Ching Ho of “Raymond” / “Siu But Leung” / “Raymond Ng” / “Sai Ray” in the HK events, is so that the prosecution can rely on the similarities in those descriptions (once taken as evidence of truth) with the accused’s employment records, to support their submission that the said “Raymond” character in the HK Events is one and the same as the one described in the PRC Scheme, and that this person was the accused.”

51. In reply, Mr Mitchell submitted that:[65]

“ The evidence of a scheme between 2002 and 2005 in Hong Kong is relevant in that explains in part how the co-conspirators became involved in the Mainland operation and their prior experience in warrant trading.”

52. Having noted that it was the evidence of Wong Ho Yin and Yeung Yiu Kei that, in recruiting them to the Mainland operation, CCH had told them that “Raymond” was continuing the operation, but moving to the Mainland, Mr Mitchell contended:[66]

“ It would be wholly artificial to lead evidence about a person known to be a boss of the Mainland operation without putting that evidence into context of how and in what circumstances the PWs had previously come across this person.

It is incorrect to say the sole purpose of the prosecution in adducing the evidence of Raymond in the Hong Kong scheme was to link this person to the defendant. It would be wholly wrong simply to jump to the conclusion that a similarity in names to the person known as Raymond/Raymond Ng or Sai Ray leads to the conclusion they are one of the same person.  The Court must look at the independent evidence as to whether the accused was a party to the conspiracy.”

Ruling

53. In his ruling, on 23 October 2014, the judge said :[67]

“ For the issue of admissibility of evidence, I rule of the evidence of PW1 to PW6 and PW9, in relation to the Hong Kong event and the PRC scheme are both admissible.”

Closing Submissions

Prosecution

54. In his written closing submissions for the prosecution, Mr Mitchell adverted to the evidence of various co-conspirator prosecution witnesses who testified of having been involved in warrant pushing in Hong Kong in the period 2003-2005 and having been told by CCH that the ‘Boss’ of that operation was Raymond and that he would assist in the warrant trading.[68]  Further, he invited the judge to note that it was their evidence that in recruiting them to work in the Mainland operation in 2005 CCH had told them that Raymond was setting up that operation.  Mr Mitchell submitted that the latter evidence was admissible under the co-conspirators rule.[69]

Defence

55. In his written closing submissions for the defence, Mr Bruce acknowledged that he was bound by the judge’s ruling as to the admissibility of the evidence of prosecution witnesses of not only the events in Hong Kong in 2003-2005, but also in respect of the Mainland operation in 2005-2008.  However, he took issue with the probative value of such evidence.[70]

56. Of their evidence in respect of events in Hong Kong in 2003-2005, he submitted that, given that CCH was the provenance of their knowledge of Raymond, none of them was able to “give direct evidence on the identity/relevance of “Raymond” …” [71]  In the result, Mr Bruce submitted of their testimony of events in Hong Kong in 2003-2005 that, “proof of the later PRC scheme comprising illegal acts by co-conspirators does not depend on any references or consideration to these past conduct…. the prosecution cannot rely on purported illegal conducts in HK events as propensity to do crime in PRC Scheme, and so the fall back must be through linking up the “Raymonds”.” [72]

Reasons for verdict

57. In his Reasons for Verdict, under the rubric “Summary of Evidence”, the judge summarised the evidence received from the co-conspirators of their participation together with CCH in the warrant pushing scheme in Hong Kong in the overall period 2003-2005.[73]  In particular, he noted their evidence that they had been told by CCH that there was an insider/Boss at CSLA called variously Siu But Leung/Sai Ray/Raymond.[74]  Then, under the rubric “Mainland operation” the judge summarised their evidence, and that of other prosecution witnesses[75], of the circumstances in which the Mainland operation had been set up and operated.

58. Subsequently, the judge again addressed the issue of the admissibility of that evidence.  Of the objections of Mr Bruce, he said: [76]

“ As to the Hong Kong event, it was submitted that the charge did not cover the period of any Hong Kong incidence or event and hence admission of any evidence relating Raymond/Siu But Leung/Sai Rai to the Defendant is highly prejudicial and shall not be admissible.”

59. Of the prosecution reply, he said:[77]

“ As to the Hong Kong event, the prosecution replied that they did not rely on the similarity of names to mark any linkage to the Defendant but just to provide the background circumstances of how those alleged co-conspirators got involved into the DWs pushing exercises which later on developing into the Mainland operation.”

60. Of his determination, he said:[78]

“ Clearly the event or incidence that some witnesses mentioned about what had happened in Sheung Wan or other Hong Kong meetings were just providing the background circumstances and explaining how and why they later on involved in the Mainland operation. It should be emphasized that there shall be no adverse inference nor implication as to the identity of person or boss behind CCH if any in those Hong Kong event or meetings which could be related to the Defendant. The Court viewed that of those Hong Kong matters merely served as the general or introductory background for the whole group as to how and why they would later on relating to the Mainland operation and thus there shall not cause any prejudicial effect to the Defendant in this regard.” [Italics added.]

61. In the passage cited above, the judge addressed both aspects of his approach to the evidence, namely first the use to which it could be put and, secondly the use to which it could not be put. 　Of the former, he stated that the evidence could be used to establish “how and why” the witnesses had become involved in the Mainland operation.  Of the latter, he said that:

“ there shall be no adverse inference nor implication as to the identity of person or boss behind CCH if any in those Hong Kong event or meetings which could be related to the Defendant.”

62. Albeit that the judge had ruled the evidence of the prosecution witnesses admissible, the latter determination of the judge, not to draw inferences adverse to the applicant as to the identity of the boss behind CCH in the Hong Kong events, nevertheless gave effect to the crux of the oral submissions made by Mr Bruce at the close of the prosecution case: the evidence was not to be used against the appellant.

63. That bare determination is unambiguous: the evidence of the prosecution witnesses in respect of the 2003-2005 warrant pushing exercise in Hong Kong that they had been told by CCH that Raymond was the ‘Boss’ behind that operation, could not be used to infer that the applicant was that person.  Further, that determination rendered otiose the need for the judge to direct himself over the requisite standard of proof and that he must not infer the applicant had committed such an offence nor had a propensity to commit the offence.[79]  Evidence of uncharged acts, arising from the testimony of the prosecution witnesses of events in Hong Kong in the period 2003-2005, was not relevant to the applicant.  As noted earlier, at the close of the prosecution case Mr Bruce made it clear that he did not object to the prosecution witnesses testifying of their personal participation in the 2003-2005 warrant pushing in Hong Kong.  The judge made clear the limited use of such evidence, namely that it was “background circumstances”, relevant to “explaining how and why they later on involved in the Mainland operation.” [80]

64. Mr Duncan’s remaining complaint is that, although the judge stated that no inference adverse to the applicant was to be drawn as to the identity of the “person or boss behind CCH …could be related to the Defendant” from the evidence of the prosecution witnesses in respect of the events in Hong Kong in the period 2003-2005, nevertheless the judge relied on that evidence.  First, in the context of the judge’s consideration of whether or not the pattern of trading was that of “normal market behaviour” or, as testified to by the prosecution witnesses, he pointed to the judge’s statement:[81]

“ Perhaps one may also note that the timing of pushing the respective selected DWs also matched with the moving of insiders, from Calyon, then Citigroup and Standard Bank and lastly Dresdner.” [Italics added.]

65. Secondly, Mr Duncan pointed out that, having stated that the “real issue” was the identity of the person behind CCH, the judge said:[82]

“ Given the complication of the whole pushing scheme, that person must have close connection with CCH and the insiders considering the timely instruction and information communicated as well as having full knowledge of the DW operation and trading From the chronology of posting and employment as in Annex II above, the historical association and the surveillance evidence of the close connection between CCH and other insiders, Defendant fitted in the connection squarely, but of course that alone would not suffice.” [Italics added.]

66. As the judge noted earlier [83], Annex II was an annexure to the prosecution Opening which, “set out the chronology of posting and employment of the defendant and the alleged insider (s).”  Its contents were clearly distilled from the Admitted Facts.[84]  The judge went on to note that it was the prosecution case that:[85]

“ … the Defendant had worked with the alleged insiders Cheung Siu-fai Dickson (Dickson Cheung), Chui Kit-man, Tsang Siu-yuen Eric (Eric Tsang) in the warrant team in Calyon, they first pushed DWs issued by Calyon (1^st charge), then when Dickson Cheung and Eric Tsang moved to work in Citigroup and Standard Bank in 2007 respectively, they then traded the DW of Citigroup & Standard Bank (2^nd & 3^rd charges) and finally with Khalid Chaneb worked in Dresdner they traded Dresdner’s DW (4^th charge).” [Italics added.]

67. Then, the judge set out the chronology contained in Annex II:[86]

Date	Event
01/11/1998	Defendant joined CLSA as floor trader
12/12/2002	Chui Kit-man joined CLSA as warrant trader
May 2004	CLSA became a subsidiary of the France-based Credit Agricole Group, of which Calyon SA was a member
01/05/2004	Cheung Siu-fai Dickson joined Calyon HK Branch as Head of Marketing & Sales of Asia
01/06/2004	Chui Kit-man joined Calyon HK Branch as trader
30/08/2004	Tsang Siu-yuen Eric joined Calyon HK Branch as sales trader
01/12/2004	Defendant was transferred to work for Calyon HK Branch as senior trader (between 01/12/2004 and 05/10/2005, Defendant, Chui Kit-man, Tsang Siu-yuen Eric, and Cheung Siu-fai Dickson were all posted to the same Warrant Team)
05/10/2005	Defendant left the employment with Calyon
21/03/2006	Lai Hang-fong Anna was employed by Asia Pacific Assets Ltd as a secretary
27/06/2006	Tsang Siu-yuen Eric left the employment with Calyon
30/04/2007	Cheung Siu-fai Dickson joined Citigroup as Managing Director, Head of Greater China Structured Products Sales
04/06/2007	Khalid Chaneb joined Dresdner as Vice President
03/07/2007	Tsang Siu-yuen Eric joined Standard Bank as Vice President of Global Markets Department
Dec 2007	Cheung Siu-fai Dickson also acted as the Head of HK Warrants Sales Team of Citigroup

68. It is to be noted that the chronology set out in Annex II encompasses the overall period 1 November 1998 to December 2007, whereas the first of the conspiracies averred in the charges (Charge 1) of which the applicant was convicted commenced on 1 September 2005.  The other three charges concerned conspiracies alleged to have occurred in 2007-2008.  By contrast, the surveillance evidence was concerned with the period 15 June 2007 to 21 May 2008.[87]  Those dates were within the overall period of the alleged conspiracies.

69. In referring to the “chronology of posting and employment as in Annex II”, [88] the judge did not in any way circumscribe or restrict that reference to any particular period of time.  Although the judge did not explain his reference to the “historical association”, it may be that one aspect of the evidence which fell within that phrase was his statement that:[89]

“ During D’s employment with Calyon HK Branch, for the period between 1 December 2004 and 5 October 2005 D, CHUI Kit-man, TSANG Siu-yuen Eric, and CHEUNG Siu-fai Dickson were all posted to the same Warrant Team. All of them were traders, except CHEUNG Siu-fai Dickson who was at the time its Head of Marketing and Sales, Asia.”

That description was taken directly from and accurately reflected the Admitted Facts. [90] 

70. The period beginning 1 December 2004 up to and until 1 September 2005 was outside the overall time period of the alleged conspiracies, but it encompassed a period in which the prosecution witnesses testified that, at the behest of CCH, they had conducted warrant pushing in Hong Kong.

71. Immediately before setting out Annex II, the judge had set out Annex I of the prosecution Opening in which the Liquidity Provider, Issuer and alleged Insiders were stipulated in respect of each charge.

	Period*	LP	Issuer	Insider(s)
Charge 1 Sample: DW1951	01/09/2005	CLSA Limited (“CLSA”)	Calyon Financial Products (Guernsey) Limited (“CA”)	Chui Kit-man Chueng Siu-fai Dickson Tsang Siu-yuen Eric (worked in Calyon HK Branch)
		CLSA and CA were affiliated companies under Calyon S.A, Calyon HK Branch was part of Calyon S.A
Charge 2 Sample: DW4801	01/01/2007	Citigroup Global Markets Asia Limited (“Citigroup”)	Citigroup Global Markets Holdings Incorporation (”CG”)	Cheung Siu-fai Dickson (employed by Citigroup)
		CG and Citigroup were affiliated companies under Citigroup Inc
Charge 3 Sample: DW3319	Unknown day in 2007	Standard Securities Asia Limited (“Standard”)	Standard Bank PLC  (“SB”)	Tsang Siu-yuen Eric (employed by Standard Bank)
		Standard Bank Asia Limited (“Standard Bank”) and SB were affiliated companies in the Standard Bank Group Ltd.  Standard was a wholly-owned subsidiary of Standard Bank
Charge 4 Sample: DW9300	Unknown day at the end of 2007	Taifook Securities Company Limited (“Taifook”)	Dresdner Bank AG (“DR”)	Khalid Chaneb (employed by Dresdner)
		Dresdner Kleinwort Securities (Asia) Ltd (“Dresdner”) was a subsidiary of DR

72. The prosecution witnesses who testified to the operation of the warrant pushing exercise conducted in Hong Kong in 2003-2005 testified that they had traded in warrants issued by CLSA/Calyon.[91]  In the Mainland operation, the subject of the charges, they continue trading those warrants, but also moved onto trading warrants issued by Standard Bank, Citigroup and Dresdner.[92]

73. Notwithstanding those considerations, as noted earlier, the judge made clear in his reference to the correlation between trading in different warrants to the places of employment of the co-conspirators that he had regard to “the moving of insider’s from Calyon, then the Citigroup and Standard Bank and lastly Dresdener.” [93]  In context, clearly that was a reference to chronological sequence in which trading occurred in different warrants, in particular the fact that Charge 1 concerned dealing in warrants issued by Calyon in a conspiracy commencing on 1 September 2005.  By contrast, Charge 2 was concerned with dealing in warrants issued by Citigroup in a conspiracy commencing on 1 January 2007.  The reference to the moving of insiders from one company to another was clearly a reference to the evidence in the Admitted Facts, reflected in Annex II, of the movement of some of the co-conspirators from Calyon to other companies,[94] also to the date Kalhid Chaneb joined Dresdener.[95]  Clearly, the judge’s subsequent reference to Annex II was made in the same context.

Conclusion

74. The fact that evidence was led from the prosecution witnesses of that CCH had told them about the existence and role of a Boss/Raymond in the 2003-2005 warrant pushing exercise in Hong Kong is to be explained by the fact that those representing the applicant at trial suggested that course or at least acquiesced in it.  That was done because the trial was before a professional judge.  Although it is reasonably arguable that the judge ought not to have admitted that evidence, it is equally clear that, having admitted it, he directed himself to draw no adverse inferences against the applicant. The result was the same.  For the reasons set out above, in my judgment it is not reasonably arguable that the judge reneged on that direction and relied on that evidence to draw inferences adverse to the applicant.  As Mr Bruce conceded, the evidence of the prosecution witnesses of their warrant trading at the behest of CCH in Hong Kong in 2003-2005 was admissible.  The judge was entitled to have regard to it in considering their evidence as to how and why they came to be parties, together with CCH, to the conspiracies alleged in the charges.  Accordingly, I refuse leave to appeal against conviction on grounds 1 and 2.

Ground 3

75. As noted earlier, objection having been taken to the evidence being led from prosecution witnesses of what they had been told by CCH of the role of Raymond in setting up and operating the Mainland operation, the subject of the four charges, the judge ruled that evidence admissible at the close of the prosecution case, “I rule that the evidence of PW1 to PW6 and PW9 in relation to the Hong Kong event and PRC scheme are both admissible.”  Objection had been taken on the basis that there was no reasonable evidence/prima facie case, apart from the actual words, that the applicant was a participant in the conspiracy (ies). Alternatively, it was contended that the judge erred in not exercising his discretion to exclude the evidence on the basis that its prejudice outweighed its probative value.  It was submitted that in the absence of CCH and Chan Chung Yan as witnesses in the trial, it was not possible to test their evidence generally or in detail.  On the prosecution case, CCH was “one of the principal generals organising the scheme.” [96]

76. In his Reasons for Verdict, the judge determined:[97]

“ However, as to the Mainland operation, there were clearly ample and sufficient independent evidence which could link the Defendant to the conspiracies as charged. Not only were there the coincidence of travel movement records with the Mainland crew and close connection to CCH and other alleged insiders as shown in the surveillance evidence, but also all those materials, documents, handwritten notes and computer printouts found in Defendant’s room which were all relating to those pushing exercises with the same DWs involved. Further not to mention the telephone messages sent and received and substantial cash found where altogether did provide sufficient or reasonable independent evidence or indeed more than a prima facie case linking the Defendant to the conspiracy.”

77. Having determined that, in those circumstances, the co-conspirators rule applied, the judge said that:[98]

“ …the court could consider all those acts and declarations of those co-conspirators made in furtherance of the conspiracy, for examples the name of the person, Raymond/Siu But Leung/Sai Ray where they only heard from CCH to whom the special phone was linked and his existence as the boss, from whom information of selected DWs, quantity and accounts to be used were provided.”

78. Of the coincidence of the movements of the “Mainland crew” together with CCH to Macau and movements of the applicant to and from Macau, the judge said:[99]

“ The crew said they were given cash taken to Macau for CCH to pay to that person. From the travel movement records as admitted in para 293 of AF1, CCH went with the crew to Macau about once per month in 2006 until CCH said it was no longer convenient. Surprisingly and coincidentally by referring to Defendant’s travel record as also shown in Annex J with the Crew, Defendant also went to Macau on exactly the same dates from February to December 2006 on 11 occasions. They also came back to Hong Kong on the very same or the following day.”

79. Of the surveillance evidence in 2007 and 2008, the judge said:[100]

“ Defendant was not only seen with close connection with CCH, Chui Kit Man, Tsang Siu Yuen Eric, Khalid Chaneb and Dickson Cheung, but also on different occasions, PW3 Leung Yiu Kei and Chan Chung Yan were seen passing bags to CCH, CCH then also handed bags to Anna Lai Hang Fong whom immediately took it back to Rm 1904 Sino Plaza where Defendant’s office situated and Anna Lai was the secretary and personal assistant of Defendant’s company.

PW3 also confirmed withdrawing cash to CCH and that different dummy account holders including PW7 Cheung lai fan, Tjoe Khiun Fa, Ko Kwong Fat and Huen Hoi fai were also seen passing cash or something to Chan Chung yan whom on the same day passing something to CCH, whom then handed bags to Anna Lai returning to Rm 1904 Sino Plaza on the same day.”

80. Of the substantial amounts of cash seized, the judge said:[101]

“ Two safes were found in Defendant’s room where one contained piles of banknotes totalling HK$2,278,500 and the other was ordered by Chui Kit Man where some brown envelopes also containing piles of banknotes of HK$2,792,000 was also found. It tallied with the above observation to see where the money ends, it was also noteworthy that total cash found in Defendant’s wife safe deposit was even up to HK$34.648 million.”

81. Of the deposit of monies into bank accounts in the control of the applicant and his wife, the judge said:[102]

“ All in all, the aggregate sum of cash deposited was over 110 Million (about 40 Million in Defendant and with wife’s joint account and 70 Million in wife and associated companies’ accounts, see Annex 5). Such sum went far in excess of the declared income of the Defendant and his wife and all their associated companies but they were just in line with the vast sum of cash generated from each dummy account for millions as seen in AF1 Table A.”

82. Of the electronic and hard copy records found in the applicant’s premises, the judge said:[103]

“ All the above documents including handwritten notes, computer printouts, notebook, monthly trading statements and USB flash drive altogether must lead one to an inescapable link to the Mainland operation.”

83. At the conclusion of his Reasons for Verdict, the judge revisited the issue of the strength of the circumstantial evidence, on which he had relied in determining that the co-conspirators rule applied, and said that the:[104]

“ circumstantial evidence was indeed so strong and telling that even without the hearsay evidence as admitted under co-conspirator’s rule, that would already be more than sufficient to come to the only conclusion that the Defendant did conspire with CCH and others to defraud as particularized in each charge.”

Conclusion

84. I am satisfied that the judge identified compelling reasons for determining that there was “ample and sufficient independent evidence” which linked the applicant to the “conspiracies as charged”.[105]  With respect, the submissions to the contrary are not reasonably arguable.

85. Although the judge was reminded by counsel in terms of his discretion to exclude otherwise admissible evidence, of the statements of CCH and Stephen Chan to the prosecution witnesses in furtherance of the conspiracy, in particular having regard to the fact that those witnesses were not to be called by the prosecution so that the defence were unable to challenge the veracity of what they had asserted, the judge did not advert to that discretionary power in his ruling.  Rather, he said simply that he ruled the evidence admissible.  In doing so, he is to be taken as having regard to that power, but to have determined not to exercise it.

86. The context in which the judge made his ruling was his observation that:

“ From the evidence of the mainland crew, CCH was seen in numerous occasions talking to the boss by the special phone during the whole operation, to get information therefrom before directing the crew how to trade and also reporting to the boss at the crucial moment to square the position of the outstanding DWs. To say that it was a fictitious figure by CCH is beyond imagination, not to mention that some crew members had also talked to him.”

87. In the result, with respect, I am not satisfied that the grounds advanced by ground 3 are reasonably arguable and I decline to grant leave to appeal on that ground.

Ground 4

88. In his oral submissions, Mr Duncan submitted that the prosecution had failed to prove particulars (a) and (c) of the Particulars of the Offence of each of the charges.  When asked by the Court if he had any submissions in respect of particular (b) of each of the charges, Mr Duncan said that he was unable to advance the argument any further.  Since each of the charges would be proved on proof of that particular alone, the grounds as advanced are of academic interest only.

As to particular (b)

89. As Ms Lo pointed out there was direct evidence from prosecution witnesses that they traded to create an appearance of active trading.  Of the evidence of Wong Ho Yin (PW1), the judge noted said, “They traded so that there was active trading in such DWs to attract general public to buy.” [106]  In respect of Chan Wing Tung, Tony (PW2), the judge said, “These were false trades, the pushing purpose was to create turnover…” [107]  Of Leung Yiu Kei’s testimony, he said, “…we continued to create volume to give false impression to investors of active trading”.[108]  Of Lee Wai Tung’s evidence of trading in warrants, he said, “the purpose was to create as appeared that the DW was heavily traded.”

90. Accordingly, I refuse leave to appeal on that ground.

Grounds 5 and 6

91. Mr Duncan did not advance any oral submissions in support of grounds 5 and 6, namely first, that in light of the defence evidence, there was insufficient circumstantial evidence that the applicant was a knowing party to the alleged conspiracies and, secondly that the judge had failed to evaluate the defence evidence properly.

92. In his Reasons for Verdict, the judge summarised the effect of the evidence adduced on behalf of the applicant through Ms Noel Chan and Mr Francis Kwok.[109]  I am satisfied that the judge was alive to the nub of the defence case, in particular in respect of the relevance of the business of HK Investor which he accurately summarised:[110]

“ it appeared that his company had many business dealings with the above brokerages firms and DWs issuer or LP and thus it was suggested that normal or social gathering with all these personnel would not be surprising.”

93. As Ms Lo pointed out, the judge considered the various aspects of the circumstantial evidence relevant to that issue in detail before rejecting the defence case.

94. Of the surveillance evidence, he said:[111]

“ in 2007 and 2008 … Defendant was not only seen with close connection with CCH, Chui Kit Man, Tsang Siu Yuen Eric, Khalid Chaneb and Dickson Cheung, but also on different occasions, PW3 Leung Yiu Kei and Chan Chung Yan were seen passing bags to CCH, CCH then also handed bags to Anna Lai Hang Fong whom immediately took it back to Rm 1904 Sino Plaza where Defendant’s office situated and Anna Lai was the secretary and personal assistant of Defendant’s company. ”

95. Of the evidence of telephone contact between the applicant and various Insiders, the judge said:[112]

“ Throughout the conspiracy period the Defendant had maintained close contact with the insiders (P314). In particular there were 669 calls between the Defendant and Chui Kit-man of Calyon (mobile and landline combined) and 245 calls between the Defendant and Khalid Chaneb of Dredsner. These calls were recorded at various times throughout the day (both within and outside office hours). There were also 116 calls recorded between the defendant and Dickson Cheung around the same period (AF1/18 - 37) and many phone calls between Chan Chung Yan and some dummy account holders.”

96. Of the Excel files found in the home of Khalid Chaneb, one of the stipulated co-conspirators, the judge said that they were:[113]

“ clearly documents generated for the purpose of tracking the trading status of the Dresdner warrants in the Mainland operation. The respective headings Turnover Me, Turnover Fish, Turnover Friend were also unlikely to be used by individual investors and these were clearly prepared as a summary calculation for the Group.”

97. Of the coincidence in the travel movements of the applicant, CCH and those operating in the Mainland scheme, the judge said:[114]

“ The crew said they were given cash taken to Macau for CCH to pay to that person. From the travel movement records as admitted in para 293 of AF1, CCH went with the crew to Macau about once per month in 2006 until CCH said it was no longer convenient. Surprisingly and coincidentally by referring to Defendant’s travel record as also shown in Annex J with the Crew, Defendant also went to Macau on exactly the same dates from February to December 2006 on 11 occasions. They also came back to Hong Kong on the very same or the following day.”

98. Of the large amount of cash found in the possession of the applicant and his wife, together with the large aggregate deposits of monies into bank accounts in their control, the judge said:[115]

“ Such sum went far in excess of the declared income of the Defendant and his wife and all their associated companies but they were just in line with the vast sum of cash generated from each dummy account for millions as seen in AF1 Table A.”

99. In the result, the judge concluded of that evidence:[116]

“ However, when considered together, the coincidence of the travel movement records; the connection with all these related person as shown in their posting and the surveillance evidence; the very substantial cash found and deposited in bank accounts; the documents found, the phone message and calls and all others as stated above were such that the circumstances were so compelling, that the only irresistible inference must be that the Defendant was surely the mastermind behind CCH orchestrating the whole pushing scheme as conducted by the Mainland crew.”

100. Of the role of a Liquidity Provider, the judge noted that it was an admitted fact that, “…it will provide liquidity of DWs on the market by being able to continuously quote investing public bid and ask prices to ensure that there is a source of DWs that investors can buy from or sell to, thus the LP plays the role of a market-maker.” [117]

101. In the context of his consideration of the evidence relevant to particular (a) of the four charges, namely that the conspirators conspired to cause employees of Calyon/Citigroup/Standard Bank/Dresdener Kleinwort to render them favourable quotations of prices of warrants, the judge noted: [118]

“ …as said by the crew, by the double order in the morning or when DWs were left before close of trade, they would tell CCH and then saw from the computer screen the DWs be picked up by the LP.”

102. As noted earlier, in the context of a consideration of ground 4, the judge was doing no more than alluding to the evidence of the various prosecution witnesses of the assistance they received at the behest of CCH from the traders acting on behalf of the Liquidity Provider in trading in warrants.

103. Then, the judge went on to state:

“ One may also note that firstly the LP was not obliged nor under any duty to buy back the DW, secondly though the price was computer automated the traders of LP could always adjust the price manually.”

104. The latter statement reflected the evidence of the prosecution witnesses of the ability of traders to manually adjust price.  There is no reason to suppose that the judge was not mindful of the evidence that there was in place a system of checks of the traders conduct.  He had noted that it was the evidence of Jonathan Chung of Standard Bank that the bank monitored “profit and loss daily to review risks and values of DWs.” [119]  Also, that he had accepted that “any overriding input may not be picked up by the head trader.” [120]  Finally, that in late 2007 and in February/March 2008 meetings had been held with traders to reduce ongoing losses.  Nevertheless, the losses were with them an “acceptable range”.[121]

105. It may be, as Ms Lo suggested, that in making the former statement the judge had in mind the effect of the evidence of Ms Stella Fung that whilst the Liquidity Provider was required to quote a bid and ask price and, if the price was accepted, to conduct the transaction at that price, it was not under any obligation to buy the warrant at the market price.[122]

Conclusion

106. I am not satisfied that the grounds of appeal advanced in grounds 5 and 6 are reasonably arguable.  Accordingly, I refuse leave to appeal on those grounds.  In the result, I refuse the application for leave to appeal against conviction.

Sentence

107. In sentencing the applicant, the judge noted that the applicant was a 47-year-old married man with three children of “clear record”.  Further, he said that in mitigation it had been submitted that the matter had been hanging over the applicant for more than six years, causing him both physical and mental stress.  Delay had been caused, first it was a retrial and secondly, because of the trial of the ICAC officers involved in the investigation of the conspiracies, resulting from their misconduct in respect of CCH.  None of the delay was the fault of the applicant.

108. Of the role of the applicant, the judge said:[123]

“ …the defendant had orchestrated through CCH and others to operate a warrant pushing scheme based in Mainland office to trade derivative warrants (DW) listed in Hong Kong.”

109. Of the mechanics of the scheme, the judge noted that it employed:[124]

“ … various trading accounts, i.e. 50 dummy accounts in 27 brokerage firms to keep on buying and selling selected DWs to create a false impression of active trading, so to enhance the price and lure other investors to trade and be sold for a profit and there were also insiders from LP to help buy back the DWs unsold to ensure the profitability of the scheme.

Under the recruitment of CCH, about 10 people were working in Mainland office.  By controlling the above dummy accounts, the group was able to push the selected DWs as informed by the defendant through CCH of the quantity and accounts to be used so that any particular account may not earn so much to arouse suspicion.”

110. Of the seriousness of the offences, the judge said:[125]

“ The offences were serious not only because of its scale involving a group of person undergoing the pushing exercises and by means of employing more than 50 accounts in 27 securities firms the detection of which was rendered very difficult and time-consuming, but also that the scheme was very sophisticated with the insiders of LP also involved whereupon daily activities were closely monitored and designed.”

111. The judge went on to note that the applicant had been careful to conceal his role behind that of CCH and that, had it not been for “a very thorough investigation” the applicant’s role as the, “real mastermind behind CCH”, would not have been discovered easily.

112. Of the profits of the scheme, the judge said:[126]

“ The group had through the above exercises earned substantial profit, one could see from the cash withdrawals of the dummy accounts that millions were withdrawn from each account in the said period of time (AF1 / Table A). The prosecution had also helpfully summarised in Annex A - C in sentencing submission all the deposits and withdrawals from those accounts; the total cash deposits in bank accounts and found in deposit boxes and the profits arising from those 4 selected DWs.

When referring to those 4 selected DWs, the profit was about 5.1 million, however, one may easily tell from all the account statements that there were many more other DWs the group had traded in where the total withdrawals from those accounts were about 450 million and that the total cash found in bank deposits and deposit boxes were about 150 million.”

113. However, the judge noted:[127]

“ that the defence also submitted that there were other unrelated personal investment in those dummy accounts and that there were other third parties in their associated companies, nonetheless, the personal investment were comparatively very insignificant and so were the revenue generated from those associated companies as shown in their respective tax returns.”

114. In the result, the judge concluded:[128] 

“ Thus it would be a fair approach to consider the above level of amount as the profit generated by the group as well as the profit that went to the defendant.”

Starting point for sentence

115. In sentencing the applicant, the judge said:[129]

“ Conspiracy to defraud is a serious offence, there was no tariff and each case would be decided on its own facts. Given the scale and sophistication of the offences committed, the very substantial sum of money involved and the profit made and all the circumstances as stated above, I assess that it should attract imprisonment terms of 6 years or more, however considering that substantial part of the prosecution case was admitted and that it was a retrial where no doubt this matter had dragged on the defendant through years, it would be appropriate to reduce to 5. But one must also note the forceful submission of Mr Bruce SC, particularly that the lengthy proceedings was due to the misconduct of the investigation officers and not from the defendant. I therefore assess the overall sentence of 4½ years’ imprisonment be appropriate.”

116. Having noted that the commission of the offences overlapped “in some period of time” the judge determined that the sentence of 4½ years’ imprisonment imposed in respect of each of the charges was to be served concurrently.

A consideration of the submissions

117. It is to be noted that the two judgments of this Court [130] to which this Court’s attention has been drawn by those representing the applicant are cases that were dealt with at some length by District Court Judge Yau in his reasons for sentence in the first trial.  InHKSAR v Cheung Sing Chi the two applicants were sentenced to 16 and 13 months’ imprisonment respectively, having been convicted after trial of an offence of conspiracy to defraud over a period of about a year by dishonestly creating a false or misleading appearance of active trading in shares in Gay Giano International Group Limited.  In HKSAR v Mo Yuk Ping, the applicants were sentenced to 3½ years’ imprisonment having been convicted of two counts of conspiracy to defraud, by dishonestly creating a false or misleading appearance in active trading in the shares of Shanghai Land Holdings Ltd and a charge of conspiracy to pervert the course of public justice.  District Court Judge Yau noted, as is the fact, that the issue of the appropriateness of the sentences imposed in those cases was not even considered by this Court.[131]  In any event, he went on to note that “the first obvious difference” between those cases and that the applicant was that the applicant’s case involved “a cross-border element”.[132]

118. Obviously, the judge was aware that the trial was a retrial.  He was told as much by Mr Bruce in the course of mitigation:[133]

“ …this is a retrial, and this Court will know what Yau J ordered on a previous occasion. I am bound to say that as a matter of law, sentence is at large in a retrial.

However, that being said, one of your brethren has obviously - can I say that respectfully, learned judge  -  obviously carefully considered that matter and … this Court should bear that in mind, and bear it very firmly in mind.”

119. At the conclusion of his submissions, Mr Bruce returned to that issue:[134]

“ …although I cannot, in law, submit that Yau J’s approach is binding on you, I venture to suggest that as an analytical starting point. One assumes that all the pointers are being made now by the prosecution about money, were made to him, no suggestion otherwise. All the points about criminality were made to him, and that’s what he fixed.

Now, I say, I don’t think this is a bald submission, but given what he has had to go through since then, it would be more than justified to go low, and those are my submission.”

120. On the other hand, neither party drew the attention of the judge, as this Court’s attention has been drawn, to the judgment of this Court in HKSAR v Chan Kau Tai.[135]  There, in the judgment of the Court, Stuart-Moore VP cited with approval the judgment of the Court of Criminal Appeal of New South Wales in R v Gilmore addressing the issue of the imposition of sentence on a defendant in a retrial, noting that the Court had said:

“ But, so far as concerns the head sentence, that passed on the first trial should ordinarily not be exceeded if the new trial results in conviction again.” (Emphasis added)

121. Of that statement, Stuart-Moore VP said:[136]

“ This observation is plainly an important consideration where the circumstances in which the retrial court finds itself sentencing a defendant on precisely the same charges.”

122. As Stuart-Moore VP noted, that principle had been applied in subsequent judgments in Australia, including in RH McL v R.  In the latter case, in the joint judgment of Gleeson CJ, Gaudron and Callinan JJ in the High Court of Australia the passage cited from Gilmore was approved :[137]

“ Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a re-trial than he or she received at the original trial. If the sentencing judge at the re-trial thinks the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. It is because such an increase may be perceived by the public and the accused as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of the sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest…”

123. Stuart-Moore VP went on to note that one of the other judgments in which Gilmore had been cited with approval was that of the Court of Criminal Appeal of New South Wales in R v Bedford.[138]  In that case, Street CJ, who had given the majority judgment in R v Gilmore, gave the judgment of the Court. 　Of the passage cited above from R v Gilmore, he said:[139]

“ It is significant to emphasise that the enunciation of the principle includes “should ordinarily not receive”. The word “ordinarily” must be given full room to operate. It might perhaps have been preferable to express this as a prima facie approach rather than elevating it to a principle.”

124. Street CJ went on to say:[140]

“ Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view.”　　[Italics added.]

125. In revisiting the issue in the judgment of this Court in HKSAR v Tse Hoi Pan, Dominic,[141] Stuart-Moore expressed agreement with the submission that, “…a sentence after retrial should not exceed the sentence originally imposed unless there is good reason for an increase.” [142]  In that case, in which the Court determined that the judge was correct in his approach in increasing the sentence imposed on the applicant, the issue was identified as being:[143]

“ … not whether the judge could pass a heavier sentence in this retrial…but whether the judge had properly exercised his discretion, on the facts of this case, to increase the appellant’s sentence.”

Conclusion

126. In all the circumstances, I am satisfied that the grounds of appeal against sentence are reasonably arguable.  Accordingly, I grant leave to appeal against sentence.

[1] Reasons for Verdict, paragraph 5.

[2] Reasons for verdict, paragraphs 259 and 268.

[3] Exhibit P 389.

[4] Reasons for Verdict, paragraph 261.

[5] PWs 1-6 and PW9.

[6] PW 27.

[7] PW 25.

[8] PWs 11 and 14.

[9] HKSAR v Cheung Sing Chi (CACC 193/2003; unreported, 11 February 2004).

[10] HKSAR v Mo Yuk Ping[2007] 1 HKC 255.

[11] R v Gilmore (1979) 1 A Crim R 416 (NSWCCA), cited with approval by the Court of Appeal in HKSAR v Chan Kau Tai [2008] 3 HKC 78 at paragraphs 32-3.

[12] HKSAR v Tse Hoi Pan, Dominic [2010] 1 HKC 1 at paragraph 58.

[13] PW1, PW3 and PW4.

[14] Reasons for Verdict: paragraphs 83; 88; 89; 93-94.

[15] PW1 and PW3.

[16] Reasons for Verdict, paragraph 247:

“ Clearly the event or incidence that some witnesses mentioned about what had happened in Sheung Wan or other Hong Kong meetings were just providing the background circumstances and explaining how and why they later on involved in the Mainland operation.  It should be emphasized that there shall be no adverse inference nor implication as to the identity of person or boss behind CCH if any in those Hong Kong event or meetings which could be related to the Defendant.” 

[17] Reasons for Verdict, paragraph 266.

[18] Reasons for Verdict, paragraph 248.

[19] Reasons for Verdict, paragraph 249.

[20] Reasons for Verdict, paragraph 269.

[21] Reasons for Verdict, paragraphs 270-272; 282.

[22] Reasons for Verdict, paragraphs 275-284.

[23] Reasons for Verdict, paragraphs 288-293.

[24] Reasons for Verdict, paragraphs 273-274.

[25] Reasons for Verdict, paragraphs 274.

[26] Reasons for Verdict, paragraphs 305-306.

[27] Reasons for Verdict, paragraph 105 (PW1); paragraph 132.

[28] Reasons for Verdict, paragraph 104 (PW1); paragraph 132 (PW3) and paragraph 146 (PW5).

[29] Reasons for Verdict, paragraph 156 (PW5).

[30] Reasons for Verdict, paragraph 107 (PW1); paragraph 121 (PW2); paragraph 131 (PW3); and paragraph 160 (PW5).

[31] Reasons for Verdict, paragraph 243.

[32] Reasons for Verdict, paragraph 267.

[33] Reasons for Verdict, paragraph 274.

[34] Reasons for Verdict, paragraphs 58 and 270.

[35] Reasons for Verdict, paragraphs 299-293.

[36] Reasons for Verdict, paragraphs 294-301.

[37] Reasons for Verdict, paragraph 305.

[38] Reasons for Verdict, paragraph 259.

[39] Reasons for Verdict, paragraph 307.

[40] Reasons for Verdict: paragraph 225 (Lam Lok Hay - PW11, CLSA); paragraph 229 (Kenneth Hon - PW14, Citigroup); paragraph 236 (Jonathan Chung - PW25, Standard Bank).

[41] Reasons for Verdict, paragraph 236 (Jonathan Chung - PW25, Standard Bank).

[42] Reasons for Verdict, paragraph 234 (Jonathan Chung - PW 25, Standard Bank).

[43] Reasons for Sentence, paragraph 5.

[44] Reasons for Sentence, paragraph 3.

[45] Reasons for Sentence, paragraph 6.

[46] Reasons for Sentence, paragraph 6.

[47] Reasons for Sentence, paragraph 11.

[48] PW1, PW2 and PW3.

[49] Appeal Bundle; page 13, paragraph 3.

[50] Appeal Bundle; page 15, paragraphs 9 and 10.

[51] Appeal Bundle; page 36, paragraph 74.

[52] Appeal Bundle; pages 1415-1420.

[53] Appeal Bundle; page 1415, paragraph 3.

[54] Appeal Bundle; page 1417, paragraph 8.

[55] Appeal Bundle, page 300 M-R.

[56] Appeal Bundle; page 1421, paragraph 2.

[57] Appeal Bundle; page1422, paragraphs 8 and 9.

[58] HKSAR v Hsu Ming Mei [2013] 1 HKLRD 286.

[59] Appeal Bundle; page 1423, paragraph 11.

[60] Appeal Bundle; pages 315 S - 316 Q.

[61] PW1, PW2 and PW3.

[62] Appeal Bundle; page 862, paragraph 9(a).

[63] Appeal Bundle; page 714.

[64] Appeal Bundle; page 867, paragraph 25.

[65] Appeal Bundle; pages 926-7, paragraph 25.

[66] Appeal Bundle; pages 926-7, paragraphs 30-1.

[67] Appeal Bundle, page 725 B-C.

[68] Appeal Bundle: page 1111, paragraph 272 (PW1); page 1114, paragraph 283 (PW3); and page 1115, paragraph 287 (PW 4).

[69] Appeal Bundle; page 1116, paragraph 295.

[70] Appeal Bundle; page 1316, paragraph 9.

[71] Appeal Bundle; page 1321, paragraph 18.

[72] Appeal Bundle; page 1332, paragraph 37.

[73] Reasons for Verdict, paragraphs 83-4 (Wong Ho Yin - PW1); 88-9 (Leung Yiu Kei - PW3); and 92-4 (Lee Wai Ming - PW4).

[74] Reasons for Verdict; paragraphs 83, 88 and 93-96.

[75] Tony Chan (PW2); Lee Wai Tung (PW5); Mak Kai Tong (PW6); and Li Ngai Sang (PW9).

[76] Reasons for Verdict, paragraph 245.

[77] Reasons for Verdict, paragraph 246.

[78] Reasons for Verdict, paragraph 247.

[79] HKSAR v Kwok Hing, Tony [2010] 3 HKLRD 769 at paragraph 16.

[80] Reasons for Verdict, paragraph 247.

[81] Reasons for Verdict, paragraph 259.

[82] Reasons for Verdict, paragraph 268.

[83] Reasons for Verdict, paragraph 7.

[84] Appeal Bundle; pages 60-65, paragraphs 11 to 37.

[85] Reasons for Verdict, paragraph 7.

[86] Reasons for Verdict, paragraph 7.

[87] Reasons for Verdict, paragraph 58.

[88] Reasons for Verdict paragraph 268.

[89] Reasons for Verdict, paragraph 15.

[90] Appeal Bundle; page 61, paragraph 17.

[91] Reasons for Verdict, paragraph 83 (Wong Ho Yin - PW1); paragraph 88 (Leung Yiu Kei - PW3); paragraph 93 (Lee Wai Ming - PW4).

[92] Reasons for Verdict, paragraph 100 (Wong Ho Yin - PW1); paragraph 143 (Lee Wai Ming - PW4).

[93] Reasons for Verdict, paragraph 259.

[94] Reasons for Verdict, paragraph 7; Dickson Cheung joined Citigroup on 30 April 2007 and Eric Tsang joined Standard bank on 30 July 2007.

[95] Reasons for Verdict, paragraph 7; Khalid Chaneb joined Dresdener on 4 June 2007.

[96] Appeal Bundle; page 905, paragraph 124.

[97] Reasons for Verdict, paragraph 248.

 [98] Reasons for Verdict, paragraph 24.

[99] Reasons for Verdict, paragraph 269.

[100] Reasons for Verdict, paragraphs 270-1.

[101] Reasons for Verdict, paragraph 273.

[102] Reasons for Verdict, paragraph 274.

[103] Reasons for Verdict, paragraph 285.

[104] Reasons for Verdict, paragraph 308.

[105] Reasons for Verdict, paragraph 248.

[106] Reasons for Verdict, paragraph 107.

[107] Reasons for Verdict, paragraph 121.

[108] Reasons for Verdict, paragraph 131.

[109] Reasons for Verdict, paragraphs 250-255.

[110] Reasons for Verdict, paragraph 267.

[111] Reasons for Verdict, paragraph 270.

[112] Reasons for Verdict, paragraph 305.

[113] Reasons for Verdict, paragraph 301.

[114] Reasons for Verdict, paragraph 269.

[115] Reasons for verdict, paragraph 274.

[116] Reasons for Verdict, paragraph 307.

[117] Reasons for Verdict, paragraph 9.

[118] Reasons for Verdict, paragraph 262.

[119] Reasons for Verdict, paragraph 234.

[120] Reasons for Verdict, paragraph 236.

[121] Reasons for Verdict, paragraph 235.

[122] Appeal Bundle, pages 650 R - 651 E.

[123] Reasons for Sentence, paragraph 3.

[124] Ibid.

[125] Reasons for Sentence, paragraph 5.

[126] Reasons for Sentence, paragraph 7.

[127] Reasons for Sentence, paragraph 8.

[128] Ibid.

[129] Reasons for Sentence, paragraph 11.

[130] HKSAR v Cheung Sing Chi; HKSAR v Mo Yuk Ping.

[131] HKSAR v Ng Chun To, Raymond & Others (DCCC 405 & 895/2009; unreported, 28 April 2010) at paragraphs 30 and 35.

[132] HKSAR v Ng Chun To, Raymond & Others, at paragraph 43.

[133] Appeal Bundle, page 764.

[134] Appeal Bundle, page 768.

[135] HKSAR v Chan Kau Tai[2008] 3 HKC 78, at paragraph 32.

[136] HKSAR v Chan Kau Tai, at paragraph 33.

[137] RH McL v R (2000) 203 CLR 452, paragraph 72.

[138] R v Bedford (1986) 28 A Crim R 311.

[139] R v Bedford, at page 316.

[140] R v Bedford, at pages 316-7.

[141] HKSAR v Tse Hoi Pan, Dominic [2010] 1 HKC 1.

[142] HKSAR v Tse Hoi Pan, Dominic, at paragraph 58.

[143] HKSAR v Tse Hoi Pan, Dominic, at paragraph 59.