IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 544 OF 2003
(ON APPEAL FROM DCCC 650 /2003)
Coram: Hon Stuart-Moore VP, Yeung JA & Beeson J in Court
Date of Hearing: 5 May 2004
Date of Judgment: 5 May 2004
Date of Handing Down Reasons for Judgment: 25 June 2004
REASONS FOR JUDGMENT
Beeson J (giving the Reasons for Judgment of the Court):
1. The Applicant was tried in the District Court before Judge Chua on 2 charges. He was acquitted of the first, which was Conspiracyto Defraud and convicted of the second, which was Conspiracy to Forge Documents, contrary to sections 71, 159A and 159C of the Crimes Ordinance, Cap. 200.
2. The Applicant was sentenced to 16 months imprisonment. He sought leave to appeal against conviction, having abandoned an appeal againstsentence, by Notice filed 8 March 2004.
3. The application was heard on 5 May 2004, at which time we announced that we would give leave and, treating the hearing as the appeal,we allowed the appeal. After hearing submissions from counsel, we ordered a retrial. We advised that we would hand down our reasonslater and now do so.
4. The facts alleged by the prosecution were set out clearly, in detail, by the prosecutor in opening the trial and that opening wasrelied on in these proceedings as setting out accurately the background to the alleged offences.
5. At the date of the alleged offences the Applicant was the sole representative of 3Com Asia Pacific Rim Ltd (3Com Asia), the HongKong subsidiary of a network product manufacturer (3Com Corporation) based in the USA. His co-defendant (D2) was a Sales Directorof Roctec Technology Ltd, an authorised distributor of 3Com Asia’s products, which could sell only to “resellers” and through themto authorised “end-users”. Special discounts were given through this approved distribution arrangement.
6. Put simply, it was the prosecution’s case that the Applicant and D2 forged a purchase order for 3Com Asia computer parts, falselynaming the end-user as City University of Hong Kong, supported by an invoice and a delivery order in the name of Roctec TechnologyLtd.
7. The purpose of the fraud was to enable the Applicant and D2 to circumvent a prohibition imposed by 3Com Corporation on a companyknown as Cobra Computer Tech. Ltd (Cobra) because it believed Cobra might sell 3Com Corporation products, which it had obtained atthe special discount rates, at higher prices in the “grey” market in Europe, in breach of the distribution arrangements put in placeby 3Com Corporation. In the present matter, Cobra was in fact the end-user.
8. It was alleged that the Applicant and D2 devised the fictitious purchase to obtain goods at a special price, which would not havebeen available to Cobra, if Cobra had been known to 3Com Corporation as the true end-user.
GROUNDS OF APPEAL
9. The appeal was based on two grounds:
10. The relevant part of the judge’s findings appears at para. 21 of her Reasons for Verdict (B43S – B44G):
11. Ground 2 stated:
12. The basis of Ground 2 appears at paragraph 36 of the judge’s Reasons for Verdict (B47T to B48H):
CONSIDERATION OF GROUND 1
13. In support of Ground 1, Mr Oderberg, counsel for the Applicant, submitted that the judge had considered the appropriate test whetherD2 had the requisite knowledge of the alleged forgery for the purposes of conspiracy, and said inter alia that the appropriate test as to doubt leading to acquittal is the balance of probabilities and, presumably, the judge had appliedthe same test to the Applicant, or at least believed that to be the appropriate test.
14. This being so, if the judge had a reasonable doubt about the case against the Applicant, she would have convicted if she believedthat the case (in particular the requisite knowledge) had been established on the balance of probabilities. It was submitted thatthe judge’s reasoning was erroneous and was fatal to the conviction.
15. Mr Shiu, for the Respondent, submitted that the portion of the judge’s reasons complained of, which he accepted had been very poorlyexpressed, did not reflect any error of reasoning. He submitted that the judge appeared to be identifying the issues pertaining tothe 2nd charge and, in particular, that the evidence might point circumstantially to one or other of the accused creating false documents;but was reminding herself that she should be alive to any lack of evidence inferring a conspiracy with the other to create the samefalse documents.
16. Further, he submitted, for a judge with lengthy experience, this could not have been an error as to the burden of proof. Mr Shiupointed out that the judge’s comments were made after she had reviewed much of the evidence and found a strong substantive case againstthe Applicant.
17. It is precisely because this is a judge with significant trial experience that this ground has caused us some concern.
18. We have not attempted to speculate about the precise meaning of the passage quoted. The balance of probabilities was plainly wronglyreferred to in the context and, more worryingly, it may have been relied on. We are puzzled why the judge departed from the standardphraseology which would, if she had adopted it, have ensured that her Reasons for Verdict spelt out clearly what she meant. We haveconcluded, therefore, that the judge may have applied the wrong standard in assessing the burden of proof.
CONSIDERATION OF GROUND 2
19. The 2nd ground of appeal, at first sight, appeared more difficult for the Applicant to sustain. However, having considered the juxtapositionof the comments at the beginning of the paragraph and the judge’s quotation of the passage taken from D2’s Video Interview, we haveconcluded that, as there was no other evidence, the judge must have relied on the answer given by D2 when deciding that the guiltof the Applicant had been established.
20. The Applicant’s counsel submitted that the judge appeared to have confused material which could be used for or against him with thatwhich could not. The evidence given by D2 during his interview with the ICAC was evidence both for and against the Applicant, althoughin court D2 purported to exonerate him. The trial judge wholly disbelieved D2’s oral evidence, but accepted his cautioned statement.
21. In the passage quoted, the judge referred to the approach she should take to the evidence and referred to the guilt of both the Applicantand D2. She cited answers from the cautioned Video Interview of D2 in which he implicated the Applicant, but failed to make it plainthat she had not used those passages in support of the case against him.
22. Mr Oderberg submitted that there was a real likelihood that the judge had convicted the Applicant, at least in part, on the basisthat she had accepted the parts of D2’s cautioned statement which inculpated the Applicant. None of the material in the Video Interviewof D2 could, as Counsel accepted, be used against the Applicant.
23. The Respondent contended that the passage complained of did not positively suggest that the judge had used the cautioned statementof D2 against the Applicant. It was also submitted that it was not imperative that the judge should state she had not used portionsof the cautioned statement against the Applicant.
24. Mr Shiu submitted further that the judge’s conclusion was based not on improper use of D2’s cautioned statement but on the wholeof the evidence. The extract, he suggested, was being used only to encapsulate her overall conclusion based on all the evidence.
25. Having considered counsels’ arguments, we found ourselves unable to agree with Mr Shiu. The judge referred to and relied on the truthof D2’s information about two visits he made to the Applicant on 12 and 27 April and his agreement to assist the Applicant by creatingfalse documents to cover up the true identity of the end-user of the goods. There was no other source from which this evidence couldhave come as the judge had rejected D2’s oral evidence.
26. Overall, we could not be satisfied that the judge had applied her mind correctly to the burden of proof, or that her use of D2’sstatement vis-à-vis the Applicant had been proper. We could see no reason to use the passage from D2’s interview unless it was forthe purpose, as the Applicant’s counsel contended, of bolstering the case against the Applicant.
27. Although it is possible, in respect of Ground 1, that the judge may have expressed herself infelicitously by departing from triedand tested forms of words, such departure raised the very real prospect that she had applied the wrong test in convicting the Applicant.
28. The uncertainty as to whether the judge had applied the correct standard of proof, coupled with what can only be seen as an improperuse of D2’s Video Interview convinced us that this was not a safe conviction. Accordingly, we gave leave to appeal and, treatingthe hearing on the appeal, we allowed the appeal.
29. Having heard the arguments of Counsel, we ordered a retrial.
Mr Gavin Shiu, SADPP, of Department of Justice for the Respondent
Mr Keith J Oderberg, & Mr Simon K C Ng, instructed by Messrs Lau, Chan & Ko, for the Applicant