IN THE COURT OF APPEAL
1994, No. 333
THE QUEEN Respondent
CH‟NG POH Applicant
Coram: Hon Nazareth, V-P, Mortimer and Mayo, JJ.A.
Date of hearing: 30 and 31 October, 10, 13, 16, 28 and 30 November,
5-8, 11, 13 and 14 December 1995
Date of delivery of judgment: 15 January 1996
Mayo, JA giving the judgment of the Court:
On 5 July 1994 after a trial lasting 11 weeks before Keith J and a jury,
the appellant was convicted of conspiracy to defraud International Housing
Development Ltd (IHD) of HK$127,617,747.88 ($127m) and a second offence
of publishing a false statement contrary to s.21(1) of the Theft Ordinance,
Cap. 210 which concealed the missing $127m in the IHD Annual Report for
1985. He was sentenced to 5 years imprisonment and 15 months imprisonment
concurrent, and was ordered to pay a sum not exceeding $15m towards the
costs of prosecution.
With the leave of this Court, he appeals against those convictions.
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The appellant, a Malaysian businessman, wanted to buy a controlling
interest in a public company. He met C.H. Low, an alleged co-conspirator and
a chief witness at the trial. C.H. Low held a majority interest in IHD — a
Hong Kong listed company — which he was anxious to realise. He saw this as
an opportunity to sell to the appellant but the appellant did not have the means
to pay for the shares. The method adopted to fund the appellant‟s purchase of
the shares is central to the case.
C.H. Low‟s 77m shares in IHD (a 60% holding) were held by
Territorial Limited as his nominee. The appellant agreed that Join Park Ltd (of
which he held 74%), would buy the shares for $232,540,000. Of this, $109m
was borrowed by Join Park from the Ka Wah Bank (KWB) but the balance of
$123.540m had to be found elsewhere.
The conspiracy to defraud
The balance was found by defrauding IHD of $127m which was used
to pay Territorial Ltd for C.H. Low‟s shares which were transferred to Join Park
after completion of the agreement on Saturday 17 August 1985. The
transaction was achieved by “the circle” of cheques.
During prior negotiations the appellant discovered that two C.H. Low
companies owed IHD a total of $127m including interest. Naturally, he
required repayment before completion and it was agreed that Territorial Ltd
would repay the money to IHD on behalf of the debtor companies.
At completion, Wanfong Nominees repaid the $127m on behalf of
Territorial Ltd into IHD‟s account by three cashier orders. Immediately
afterwards, IHD remitted the same sum in 8 cheques of odd amounts to its
subsidiary, Dixon Ltd. By 8 cheques of different odd amounts Dixon remitted
it to Wanfong Nominees who received it on behalf of Territorial Ltd. It was
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applied to pay the balance owing on the shares. These transactions took place
through accounts which each party held with KWB on Saturday 17 August
C.H. Low and his brothers bought a substantial interest in KWB in
1975. Later, Victor Tan joined the Bank. C.H. Low and Victor Tan brought
Doreen Yong, a chartered company secretary from Kuala Lumpur, to work in
the Bank. She later became C.H. Low‟s mistress and carried out his
instructions in relation to his, and Victor Tan‟s, corrupt running of the Bank
and numerous other companies.
Quek Teck Huat was the chairman of IHD at the time of these
transactions and a close business associate of C.H. Low and Victor Tan.
At trial, C.H. Low, Doreen Yong and Quek Teck Huat gave evidence
as accomplices with immunity. They each admitted that they conspired with
Victor Tan to defraud IHD of the $127m by means of the circle of cheques.
They also testified that the appellant had full knowledge of the fraud, was a
party to it and a beneficiary of it.
The central issue before the jury was whether the appellant knew
about the said circle of cheques and consequently was a party to the fraud on
The prosecution case
The prosecution case was that initially the conspirators agreed that the
$127m would be repaid by C.H. Low‟s companies to IHD but that it would then
be used by the appellant to pay the balance of the purchase price at completion.
However, as the law forbade a company from financing the purchase of its own
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shares, the true nature of the transaction was concealed by the circle of cheques
with the appellant‟s full knowledge and consent.
IHD books recorded the repayment of the debts of $127m, followed
by loans totalling $127m to its subsidiary Dixon Ltd. Dixon Ltd recorded the
receipt of these sums and the payment out of different sums in 8 cheques also
totalling $127m for “investments”. According to C.H. Low the professed
intention was that later the appellant would transfer his assets into IHD (via
Dixon Ltd) as if they were the investments purchased by Dixon so that when
the auditors came to examine the books, the true nature of the transaction
would be hidden from them.
The appellant‟s version
The appellant denies that he knew of, or agreed to, the transaction.
He agrees that he was unable to fund the purchase of the shares from his own
resources. He contends that he wanted to borrow the full price from the Bank
but C.H. Low told him that the maximum the Bank would lend was $125m. He
knew therefore that he had to find the balance elsewhere. C.H. Low was
desperate to sell. So he proposed, and the appellant accepted, an arrangement
whereby Territorial Ltd would transfer the shares and allow the appellant to pay
the balance of the purchase price later. For his part the appellant would later
sell assets to IHD and thereby raise sufficient to pay that balance to Territorial.
This was referred to as the vendor financing agreement.
At the time he believed this arrangement had been put into effect and
he knew nothing of the fraud on IHD until he discovered shortly before
26 September 1985 that the money was missing.
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The evidence summarised
The main prosecution evidence was given by the accomplices
C.H. Low, Doreen Yong and Quek Tech Huat. Their testimony was
uncorroborated and given under immunities.
The negotiations leading up to the sale of the IHD shares, the
discovery by the appellant of the debts of $127m owing to IHD before
completion, the agreement for sale, a meeting to rehearse the completion to
ensure the smooth carrying out of the fraud, and the completion of both the sale
and the fraud were described. Each accomplice testified about his or her part
and the knowledge and participation of the appellant.
The appellant‟s insistence that the worthless debts should be repaid to
IHD was described together with his agreement that the sum should be returned
to Territorial to fund the purchase of the shares. Also, there was evidence of
the payments out by Dixon Ltd described as “investment” in its books so that
the appellant could later transfer assets to IHD and thereby conceal the true
nature of the transaction from the auditors.
A wide ranging — and apparently successful — attack was made
upon the credibility and honesty of C.H. Low and Yong. With less success (it
would seem) a similar attack was made upon Quek. The defence relied not
only upon C.H. Low‟s participation in the massively corrupt and dishonest
running of KWB but also upon his anxiety together with his mistress Yong to
assist the authorities in Hong Kong in order to obtain leniency for himself and
immunity for Yong to enable her to return from Taiwan with their child. In
many instances the evidence of the accomplices was inconsistent one with that
of another, and with earlier statements each had made.
The appellant gave evidence in accordance with his version of the
transaction set out above denying knowledge of, or participation in, the fraud.
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He contended that he was unaware of the missing $127m until a few days
before 26 September 1985. This was also before the publication of the IHD
Annual Report at about the beginning of December 1985. He conceded this
report was false in that he did not disclose the missing sum, but claimed that he
was not dishonest because he believed that the sum could be recovered.
Apart from these broad matters which were for the jury to resolve
upon the credibility of the witnesses, both the defence and the prosecution
made many other significant points.
The above essential outlines conceal the complicated factual evidence
given both the prosecution and the defence. The judge encapsulated the law,
the evidence and the issues for the jury‟s assistance with commendable clarity
and fairness. Later we refer to passages criticised by the appellant, but as a
general summary of the evidence in this lengthy trial subject to what follows,
we are content to rely upon it as an account necessary for a full understanding
of the case.
The issues raised on both the defence and prosecution were fairly and
squarely left to the jury. Those raised by the defence and relied upon in this
appeal are dealt with in some detail below. It is not necessary to anticipate
them but it is necessary to note that the prosecution case did not rest entirely
upon the accomplices. There was no corroboration but in four broad categories
there was significant circumstantial support for the prosecution case. To these
we now turn.
1. The appellant’s conduct
Against the background that IHD was defrauded and that the central
issue was whether the appellant participated in the fraud, there were relevant
aspects of his conduct which supported the prosecution case.
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He was a well-educated, experienced and successful businessman yet
his behaviour during the negotiations leading to the agreement for, and the
completion of, the purchase of IHD when he had insufficient means to pay for
the shares was seriously open to question in the following respects:
(a) He did not seek full advice from professional advisers. He had
no independent accountant to examine IHD‟s books. He had no
independent valuation of IHD‟s one asset — Intercontinental
Plaza. He failed to seek advice from his solicitor, Susan Chow,
about the arrangement for financing the purchase, nor
sufficiently about the agreement itself which he signed
knowing that clause 3(A) was false. He signed this agreement
in spite of reservations expressed by his partner Ngai and Susan
(b) Before the signing of the agreement in June, he discovered that
C.H. Low had not disclosed the $89m Seareef debt. Later (the
exact time was in dispute) he discovered that the Ariffin and
Low debt of $36m had not been disclosed. In spite of this he
continued to deal with C.H. Low without the usual professional
advice and without disclosing the nature of the transaction to
his solicitor. He even completed on 17 August 1985 and
entrusted Yong with the three cashier orders having concluded
on 16 August that she had lied to Susan Chow and knowing
that Susan Chow had reservations about Territorial‟s conduct
during the negotiations.
2. The appellant’s evidence
In other important respects the appellant‟s evidence was open to
question and the jury were entitled to draw adverse inferences. Examples of
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(a) There were inconsistencies between the appellant‟s evidence on
affirmation in earlier civil proceedings and his evidence at this
(i) about the reason for deferring payment for the shares. In
the affirmation the reason given was that he would retain
the purchase money “pending the verification of the
anomalies in the account”, and
(ii) whether he thought C.H. Low was the vendor and
beneficial owner of the shares.
(b) Also, in his statement under caution, he said he would inject
cash into Camden to pay for the shares without any reference to
raising the necessary money by a sale of assets to IHD. The
transfer of assets was central to his defence.
(c) In a file found in the appellant‟s desk, two receipts were found
in favour of his companies — Camden and Earlstone for
$123.54m and $109m representing the purchase price. These
were said to be consistent with his knowledge of the fraudulent
payment at completion and inconsistent with his evidence. But
see the summing-up p.174A-179M for a full summary.
(d) When the appellant discovered that the $127m was missing, a
few days before 26 September 1985, he admitted failing to tell
his partner Ngai. Ngai heard about it indirectly in October.
When asked, the appellant first said that several tens of millions
of dollars were missing before later conceding the actual
amount. The appellant never told the non-executive directors
of the missing money, saying that he relied upon Ngai to do so.
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3. The appellant’s account
The prosecution also contended that the appellant‟s own account of
the transaction was fundamentally flawed so as not to be acceptable. The main
(a) The appellant‟s evidence was that in spite of the arrangement
that he was to inject assets into the IHD Group to raise the
money to pay for the shares, Quek told him that he had invested
the $127m on speculative property development in Singapore.
When he discovered he said that he was “happy”. Yet had the
money been spent by Quek in this way (Quek denied it), the
appellant would have been deprived of raising the money to pay
for the shares by transferring his assets to IHD. The whole
arrangement would have been frustrated.
(b) On the evidence, the assets which the appellant proposed to sell
to IHD to raise the purchase price were of doubtful commercial
value. They chiefly consisted of a series of “letters of intent”
and hopes of future subcontracting in building projects. Some
of these would require considerable investment if binding
agreements were eventually made. Also, a proper valuation
would have been necessary before IHD as a public company
could purchase these “assets”. The appellant‟s ability to
complete the transaction was at risk.
(c) The appellant‟s explanation of the transaction to the accountant
for Join Park was inconsistent with his evidence at trial with the
consequence that the $109m was wrongly described in its
accounts for a number of years.
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(d) The general offer to minority shareholders stated that the
agreement had been completed. The appellant never informed
his advisers of the arrangement for deferred payment. Yet had
he done so, no general offer would have been necessary.
(There was evidence that the appellant was anxious to avoid the
financial burden consequent upon such an offer.)
(e) The deferred payment contended for was inconsistent with the
appellant‟s assertion that C.H. Low was desperate to sell in
order to raise cash.
The prosecution contended that in practice and common sense the
appellant had to be a party. The fraud was likely to fail without his knowledge
and the circle of cheques was for his benefit as well as the other conspirators.
Counsel relied upon the following:
(a) The professional advisers — including those for the appellant
— were deceived into thinking that completion occurred on
17 August 1985. Join Park could not pay with IHD‟s money
unless the cashier orders — used to demonstrate to the advisers
that the debts had been repaid — were released by the appellant
back to Doreen Yong to the bank without delay.
(b) The records were consistent with the money having been used
to pay for the IHD shares — see for example the two receipts.
(c) After completion, the 77m IHD shares were transferred to Join
(d) Without the appellant‟s participation, it was highly likely that
the fraud would be discovered immediately after completion.
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(e) The use of 8 cheques to transfer the money from Dixon to
Wanfong was consistent with the intention of covering the
fraud by transferring various assets later as each cheque could
be related to different assets in the books.
We now turn to the issues raised in the appeal.
Primary grounds of appeal
There were altogether 9 main perfected grounds of appeal and two
Before the appellant could argue the first two grounds of appeal and
the additional grounds it was necessary for the defence to obtain the leave of
the court to adduce further evidence pursuant to section 83V of the Criminal
Procedure Ordinance, Cap. 221.
The first two grounds of appeal were:
“1. That in the light of the evidence of Charles Warwick Reid (additional
evidence on appeal under Section 83V(1)(c) or Section 83V(2) Cap. 221),
the convictions of the Applicant are unsafe and unsatisfactory.
2. There was a material irregularity in the course of the Applicant‟s trial in
that the Crown failed to disclose to the Applicant, his counsel or
(a) prior to the close of the prosecution case, the existence of twenty-
two audio tapes recording interviews between the principal
prosecution witness LOW Chang-hian and I.C.A.C. officers; and
(b) eight written statements made and signed by John LIM Thiam-
khean, thereby depriving the Applicant of the use of material
relevant to his defence at trial.”
The two additional grounds of appeal were:
“1. That in the light of the evidence of Chan Yau Ming, Alex (additional
evidence on appeal under Section 83V Cap.221), the convictions of the
applicant are unsafe and unsatisfactory.
2. There was a material irregularity in the course of the applicant‟s trial in
that the Crown failed to disclose to the applicant, his counsel or instructing
(a) that when interviewed by officers of the ICAC on the 19th day of
April 1993, a prison officer Lai Kwok-sheung disclosed that a
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portable telephone had been introduced into the Siu Lam
Correctional Facility in 1992 and that telephone had been used by
the principal prosecution witness Low Chang-hian to make
numerous calls to Taiwan, Singapore, Malaysia and London
between the months of September and December 1992, and
(b) that a follow inmate Chan Yau-ming and prison officer Lai Kwok-
sheung had been convicted of offences relating to the introduction
of the portable telephone into the Siu Lam Correctional Facility,
(c) that a decision was taken not to prosecute C.H. Low in relation to
his use of the portable telephone.”
It is convenient to consider these grounds of appeal together.
Application for additional evidence
An application to adduce the additional evidence referred to in these
grounds was made as a preliminary issue. The parties were informed at the
conclusion of the application that it was dismissed and that reasons for the
dismissal would be given in our judgment. These reasons, it should be noted,
in the event also embrace the issue of the failure of the Defence to make out a
case of material irregularity in the trial.
The evidence sought to be adduced was the evidence of Mr C.W.
Reid, Mr Alex Chan, Mr Lai, Mr John Lim (the additional witnesses) and the
transcript of 22 tape recordings of interviews by Senior Officers in ICAC when
interviewing C.H. Low who was the principal witness in the proceedings
It is to an extent necessary to consider these two sources in
conjunction with each other as it is the appellant‟s contention that some of the
material contained on the tapes either supports or tends to support the potential
evidence Reid and Alex Chan would be able to give.
Put in simple terms Reid and Chan state in their affidavits that they
had numerous conversations with C.H. Low while they were inmates in prison
when they discussed the circumstances surrounding the appellant‟s case.
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According to Reid and Chan C.H. Low told them that he had deliberately
perjured himself with the intention that the appellant should be wrongly
convicted of being a party to the conspiracy that he, C.H. Low had been a party
to with others. His motive for this had been a deep hatred of the appellant who
had initiated the legal proceedings which had been instrumental in bringing
about his downfall.
When C.H. Low had made his statements to the ICAC officers he
provided a substantial body of detailed evidence and Mr Plowman, QC, for the
appellant contended that some of the matters referred to in Reid‟s affidavit
would not have been known to him but for the said conversations and the fact
that similar material was contained on the tapes strongly reinforced the
credibility of Reid‟s evidence. Mr Plowman submitted that leave should be
given to admit the additional witnesses on affidavit or viva voce as this
evidence was not available at the time of the hearing nor could it have been
even with due diligence.
Subsequent to his conviction the appellant terminated his instructions
to Messrs Fan & Fan the solicitors then representing him and instructed his
present solicitors Messrs Haldanes. One of the first actions taken by Haldanes
was to write to Reid who was still serving the sentence of imprisonment
imposed upon him and request him if he could assist them in any way. Reid
had given evidence for the Crown against Eddie Soh who had, when he had
been a barrister, represented C.H. Low. Reid had indicated that he could be of
assistance and some months later when he had completed his sentence and
returned to New Zealand he swore the affidavit in question.
The background to the tapes was very different. Prior to the
appellant‟s trial Messrs Fan & Fan had written to ICAC asking for any relevant
background material they were entitled to as being of possible assistance in the
preparation of their clients defence. ICAC had not provided the defence with
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these tapes until after the prosecution had closed its case against the appellant.
Indeed it was not until six days after the appellant had started giving evidence
that the defence were notified of the existence of the tapes. It was accepted that
the tapes did contain material which was relevant to the instant criminal
proceedings. It was in these circumstances that the application was made to
introduce the tapes as evidence.
The relevant parts of s83V of Cap 221 for this application read:
“(1) For the purposes of this Part, the Court of Appeal may, if it thinks it
necessary or expedient in the interests of justice -
(a) order the production of any document, exhibit or other thing
connected with the proceedings, the production of which appears to
it necessary for the determination of the case;
(b) order any witness who would have been a compellable witness in
the proceedings from which the appeal lies to attend for
examination and be examined before the Court of Appeal whether
or not he was called in those proceedings; and
(c) subject to subsection (3), receive the evidence, if tendered, of any
(2) Without prejudice to subsection (1), where evidence is tendered to the
Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the
evidence, if received, would not afford any ground for allowing the appeal,
exercise its powers of receiving it if -
(a) it appears to it that the evidence is likely to be credible and would
have been admissible in the proceedings from which the appeal lies
on an issue which is the subject of the appeal; and
(b) it is satisfied that it was not adduced in those proceedings but there
is a reasonable explanation for the failure to adduce it.
(3) Subsection (1)(c) applies to any witness (including the appellant) who is
competent but not compellable, and applies also to the appellant‟s husband or wife
where the appellant makes an application for that purpose and the evidence of the
husband or wife could not have been given in the proceedings from which the
appeal lies except on such an application.”
Mr Plowman places particular reliance upon s83V(1). He argued that
it was both necessary and expedient in the interests of justice that both the
additional witnesses‟ evidence and the tapes should be admitted as evidence
before the Court of Appeal.
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Different considerations apply to the additional witnesses‟ evidence
and the tapes.
The first question for this court is whether Reid‟s evidence is
admissible. Section 13 of the Evidence Ordinance Cap. 8 which deals with
previous inconsistent statements provides:
“13. Proof of contradictory statement of adverse witness
If a witness in any proceedings, on cross-examination as to a former
statement made by him relative to the subject-matter of the proceedings and
inconsistent with his present testimony, does not distinctly admit that he has made
such statement, proof may be given that he did in fact make it; but, before such
proof can be given, the circumstances of the supposed statement, sufficient to
designate the particular occasion, must be mentioned to the witness, and he must
be asked whether or not he has made such statement.”
Mr Aiken QC, for the Crown submitted, quite rightly in our view, that
until C.H. Low has denied that he had the conversations alleged with Reid the
affidavit or any evidence given by Reid would be inadmissible. Accordingly,
even if Mr Plowman were to be right in submitting that an order could be made
under s83V(1) rather than s83V(2) being inadmissible, that evidence could not
be received by this court under either provision. Authority for this proposition
can be derived from the judgment of Scarman LJ as he then was at p56 of
Lattimore and others  62 Cr.App.R.53:
“Of course, it is common sense that the Court will not receive evidence under
subsection (1) if satisfied that it „would not afford any ground for allowing the
appeal‟: for its reception would not be „necessary‟ in the interests of justice. It is
also inconceivable that the Court would receive inadmissible evidence: for the
Court must act according to law. But these curbs upon the discretion arise not
from the fact that they happen to be mentioned in subsection (2), but from the
terms of subsection (1) and the general law, including the law of evidence.”
This requirement need not however be fatal because if we considered
it necessary in the interests of justice it would be open to us to exercise our
discretion to order C.H. Low to be called for cross-examination, a procedure
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adopted by the Court of Appeal in England in Re Conway 1979 Cr.App.R.4. If
C.H. Low denied the conversation Reid‟s evidence would become admissible
but would go only to C.H. Low‟s credibility.
This then leads to the most important consideration. That is whether
having regard to all of the surrounding circumstances the evidence contained in
Reid‟s affidavit is well credible of belief. We approach this on the lines
indicated by Edmund Davies LJ at p3 of R. v. Stafford and Luvaglio NW1 1968
“We interpret the phrase „evidence likely to be credible‟ in the same way as the
phrase „credible evidence‟ was interpreted before the Act in PARKS (1961) 46
Cr.App.R.29, that is, as meaning evidence well capable of belief. It is clear that a
more liberal attitude than hitherto prevailed was introduced by the provision in
section 5 that the fresh evidence sought to be introduced shall be received unless
the court is satisfied upon the grounds specified in the section that it ought not to
be. Nevertheless, public mischief would ensue and legal process could become
indefinitely prolonged were it the case that evidence produced at any time will
generally be admitted by this Court when verdicts are being reviewed. There must
be some curbs, the section specifies them, and we proceed to consider the present
applications with due regard to them.”
Not much credit can be given to Reid as a witness. He is a self
confessed criminal of the worst type. He grossly abused the trust reposed in
him as a senior member of the Attorney General‟s Chambers. There is every
reason to be suspicious of him as a witness.
There is also every reason to be suspicious of the circumstances under
which his affidavit came to be provided which remains unexplained. In
particular, no satisfactory explanation has been forthcoming as to why it was
thought to be desirable to make inquiries of Reid after the appellant was
convicted rather than when the defence was being prepared. While it is true
that those advising the appellant would have had no idea what evidence Reid
would be able to give it is strange that Reid should have acted in the way he
did. If he is to be believed he was prepared to sit back and do nothing while
according to his testimony an injustice was being perpetrated. However as
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soon as he is approached after the trial he is prepared to come forward and give
the most detailed evidence. He did not however commit himself to swearing an
affidavit until some months later when he had returned to New Zealand when
clearly it is much more difficult for the Prosecution to investigate the various
matters he raises. So far as the contents of Reid‟s affidavit is concerned it has
to be borne in mind that Reid as a consequence of his official duties had a
detailed knowledge of the background of the events referred to. It is necessary,
though, to bear in mind that Reid‟s access to information would have been cut
off after he discontinued performing his duties.
It will be noted from the conclusions which have been reached later in
this judgment on the audio tapes that the material on the tapes does not to any
significant extent corroborate the evidence contained in Reid‟s affidavit.
(a) Reid‟s evidence is not admissible;
(b) In any event, his evidence is not well capable of belief;
(c) Further, we do not exercise our discretion to order C.H. Low to
be called for cross-examination in order to create the
circumstances in which Reid‟s evidence could become
(i) Reid‟s evidence goes only to C.H. Low‟s credibility,
(ii) The material available at trial to the appellant to impugn
C.H. Low was so extensive that in any event this would
have been unlikely to have had any increased impact; and
(iii) The circumstances in which his evidence was not
available at trial but became available so late are open to
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In reaching our conclusion we do not overlook the importance of
Reid‟s allegation that C.H. Low informed him of an intention to fabricate a case
against the appellant. For these reasons we refused leave to adduce his
Mr Alex Chan‟s evidence
Alex Chan was also a fellow prisoner of C.H. Low at Siu Lam in the
later part of 1992. The considerations relating to the admissibility of Chan‟s
evidence are similar to those obtaining in relation to Reid. According to an
affirmation affirmed by Chan he and C.H. Low became friends and had
numerous conversations. During the course of these it became clear that C.H.
Low had a bitter antagonism towards the appellant and was anxious to harm
him if he could. At one point he said that he would frame him. Chan also said
that he had been a party to illegally arranging for a portable telephone to be
brought into the prison for C.H. Low‟s use. One of the people he wanted to
speak to was his mistress Yong. The arrangements were made with Lai a
warder and C.H. Low made a number of telephone calls on the telephone.
Eventually the use of the telephone was discovered by the authorities and
criminal proceedings were instituted against Lai and Chan.
Mr Plowman submitted that collaboration between the co-conspirators
was an important element of the trial below. The defence‟s knowledge or lack
of it was crucial. Mr Plowman claimed that the prosecution should have
acquainted the defence with particulars of the use of the telephone.
We do not think that this submission can be sustained. The scope at
that point of time for collaboration would have been limited. The opportunity
for collaboration had existed for some time and the conspirators had already
made statements committing themselves to their versions of events. At best this
issue was peripheral.
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So far as the conversations with C.H. Low and the allegation that he
said that he would frame the appellant are concerned they are much too vague
and lacking in particulars to be of any value.
We bear in mind the suspicious background circumstances. There
was considerable press coverage of the trial below. Notwithstanding this Chan
does not seem to have felt any moral imperative to come forward to give the
evidence he now seeks to give. The explanation that his conscience was
pricked by the newspaper report of this appeal is hardly convincing.
Also when this is taken in conjunction with his character and
background we do not think that Chan could be a credible witness.
As to admissibility and the exercise of our discretion we reach the
same conclusion in respect of this witness as we did with Reid.
The appellant also sought leave under s83V to adduce 4 witness
statements which had been made by John Lim. The 1st was made on 8 July
1987, the 2nd on 19 October 1987, the 3rd on 6 March 1990 and the 4th on
12 January 1992. All of these statements were made to ICAC officers in
connection with the investigation which was being undertaken by them into the
affairs of the KWB. At the time when the statements were made the
investigation was not directed towards the matters which are the subject of the
Lim was an employee of KWB. He was originally employed in
Malaysia and is a citizen of that country. He was seconded by the Low
Brothers to work in the bank in Hong Kong. Most of his work was undertaken
upon the instructions and directions of C.H. Low. To a considerable extent he
performed duties similar to those which, after he left, were undertaken by
Yong. Lim said that he was often asked to sign documents in other people‟s
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names by C.H. Low. He complied with these requests. He said that to his
knowledge Yong did likewise as did C.H. Low himself.
Mr Plowman submitted that as forgery was a live issue in the trial
below the prosecution should have made these statements available to the
Even if the statements had been available to the defence they would
have been of limited assistance because if either Yong or C.H. Low had denied
the contents of the statements it would not have been open to the defence to call
rebuttal evidence as the contents of the statements only impinged upon the
Over and above this it was unlikely that the defence would have been
able to call Lim. He was at the time of the trial in Malaysia. He would have
been most unlikely to come to Hong Kong as he himself had according to the
matters referred to in the statements likewise been guilty of at least forgery and
no immunity from prosecution had been sought from the Crown in these
Mr Aiken informed us that the officers in ICAC who had taken the
statements Mr Osborne and Mr Gidwani had not remembered the matters
referred to in the statements when Yong and C.H. Low had been giving their
evidence at the trial.
We have no doubt that Mr Aiken was correct in his contention that as
this evidence was not admissible an application under s83V cannot succeed.
It is also clear, for the reasons that follow, that the failure of the
prosecution to furnish copies of the statements to the defence cannot be
regarded as a material irregularity.
- 21 -
The statements to the effect that Yong and C.H. Low had previously
committed forgery were not central to the issues which were before the court.
Forgery was alleged in respect of two documents. The 1st was the
schematic diagram which was intended to illustrate the movement of moneys
part of which the appellant admitted he was the author. The allegations of
forgery related to the four sentences in handwriting appearing above the
diagram. In his summing-up Keith J referred to the inconclusive nature of the
evidence before the court and suggested to the jury that the meaning of the
words was ambiguous and equally supported the contentions being advanced
by the defence on the subject of the movement of funds. This evidence clearly
was not central to the issues before the court.
The other document subject to an allegation of forgery was the bank
mandate which was lodged with the KWB after completion took place on
17 August 1985. This mandate was lodged with the bank on 2 September and
the date appearing on the document is 2 September. This was a controversial
issue at the trial. According to Yong the appellant acquiesced in the delay in
submitting the mandate to the bank and also agreed to the date being changed
from 17 August to 2 September.
The defence case was that there was no such agreement. Yong had
not acted with the appellant‟s agreement in postponing lodging the mandate
with the bank and had no authority to change the date.
If the appellant‟s evidence was accepted and Yong‟s rejected it is true
that she would have been guilty of forgery. The issue however which was
squarely before the jury was whose evidence was to be believed. The fact that
on some previous occasions she had according to the contents of Lim‟s
statements signed documents in other people‟s name would not have taken
matters further. It is true that if evidence to this effect was admitted it would
further damage Yong‟s credibility. It was of course clear that Yong was being
- 22 -
presented as an accomplice and relevant warnings were given to the jury. If the
material had been available it could have been put to Yong in cross-
examination. If she denied it evidence in rebuttal would not have been called.
Mr Plowman submitted on the authority of R. v. Funderburk (1990)
90 Cr.App.R.466 that there were exceptions to the rule that rebuttal evidence
could not be called where the issue was a witness‟ credibility. Whereas we
accept that there are exceptional circumstances in which a matter may be so
central to credit and so closely related to the subject matter of the indictment
that evidence in rebuttal of a witness‟ answer ought to be permitted, Lim‟s
evidence would not have been admitted on this basis. His evidence would have
There was no basis for acceding to the application to admit evidence
from Lim under s83V and the defence have failed to establish that the failure of
the prosecution to make this material available to them amounted to a material
The appellant places reliance principally upon s83V(1) in support of
the application to admit the 22 tapes and the transcript of them as additional
evidence in the appeal. The basis of the application is that it is “necessary or
expedient in the interests of justice” to make such an Order.
Mr Thomas QC for the Crown on this part of application submitted
that as a matter of principle the court should not accede to the application. The
reason for this was that this was not a case of non-disclosure of the tapes. It
was a case of late disclosure. He accepted that the existence of the tapes should
have been disclosed much earlier. This acceptance was based on the fact that at
the least there was material on the tapes which could have been used by the
- 23 -
appellant‟s legal advisers to further damage the credibility of the main
prosecution witness C.H. Low.
It was clear that on 16 June 1994 while the defence case was being
run Mr Aiken did inform Mr Corrigan and Mr Marash of the existence of the
tapes. There is a dispute as to exactly what was said but as invited we deal with
this application on the appellant‟s version. It is not in dispute that the existence
of the tapes was made known to the appellant‟s legal advisers.
In accepting the appellant‟s version of what transpired one of the
matters which was referred to by Mr Plowman was the allegation that Mr Aiken
had advised Messrs Corrigan and Marash that he had been informed by ICAC
that the material on the tapes was not relevant to the charges in the case.
Even assuming the accuracy of this statement it does not assist the
appellant. It would have been unwise of counsel to accept such an assurance as
it would not have been known to the officers in ICAC exactly how the defence
was going to run its case. We do not accept that this would have been a matter
which the defence would have placed any reliance upon.
In his affidavit Mr Corrigan gives reasons why a decision was made
not to make an application to Keith J in respect of the tapes. The reasons given
are not convincing. In effect he said that it was too late as the appellant was
still giving evidence and he could not obtain appropriate instructions . Also as
it would take weeks to listen to the tapes and get them transcribed no useful
purpose would be served in raising the matter with the judge.
Neither Mr Corrigan nor Mr Marash dispute that Mr Aiken informed
them that he could arrange for C.H. Low to be available for further cross-
examination and that he would not oppose any application Mr Corrigan may
wish to make for an adjournment.
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The fact that no application was made to Keith J is important. He was
in a far better position than the Court of Appeal to consider and evaluate the
ramifications of late disclosure of the tapes. He would have been able to make
a decision as to whether an adjournment was required and whether the interests
of justice required that C.H. Low should be re-called for further cross-
examination. What is clear is that there was no justification for the decision
being made by the defence team rather than the judge, not to take matters
further, when this important disclosure was made. It is always the duty of the
defence to obtain all relevant material which may be of assistance to the
defence or which may call in question the prosecution case.
It is difficult to avoid the conclusion that a conscious decision was
made not to raise the issue of the late disclosure of the tapes prior to the jury‟s
verdict and keep the issue in reserve as a ground of appeal should the appellant
be convicted. This was not a proper course to adopt. The Privy Council
considered a similar situation in R v. Rodolpho de los Santos  2 HKCLR
136. Lord Lowry said at 150.
“ In his petition for special leave to appeal and before the Board the
appellant attacked the Court of Appeal‟s refusal of leave to call the proposed fresh
evidence. Their Lordships see little merit in the appellant‟s arguments on this
point. The evidence of Ernie was available and Mr Oliver, the appellant‟s
attorney, had interviewed him and knew what he could say. Even after Prezioso‟s
evidence, the attendance of Ernie could have been obtained either with or without
the assistance of a short adjournment. A conscious tactical decision not to call a
witness because of the danger of doing so, when compared with the importance of
the facts to be proved by him, does not leave it open to the defendant, once
convicted, to apply to call that witness under s83V.”
As the rule requires the court to determine whether the interests of
justice require that the additional evidence be considered it is necessary to
weigh the significance and importance of the material referred to in the tapes.
Before doing so it is necessary to take cognisance of the context of the material.
- 25 -
The conspiracy charged was just one prosecution which formed part
of a substantial investigation arising from the difficulties encountered by the
KWB. C.H. Low was one of the Directors of the said Bank and was himself
prosecuted successfully in respect of some of his acts and defaults. The
investigation was a large and complex one involving 1385 individuals. Most
importantly the purpose of the interviews which are the subject matter of the
tapes was to debrief C.H. Low. This debriefing was undertaken after C.H. Low
had made his witness statement for the trial below. Generally the majority of
the matters referred to were background material rather than being of direct
relevance to the issues relating to this case. What needs to be borne in mind is
that the conspiracy in question related to a fraud on a public company which
was alleged to have occurred in 1985. The victims of the fraud were the
shareholders of the company. The main issue which was before the jury was
whether the appellant was a party to the scheme which was resorted to of
constructing a circle of cheques which resulted in the $127 million purchase
price effectively being withdrawn immediately after the payment was effected.
What was very clear throughout the trial was that the main witnesses namely
C.H. Low, Yong and Quek were accomplices and that Keith J had emphasised
in his directions to the jury the dangers attendant upon placing reliance upon
testimony given by such witnesses. There was a great deal of material on the
tapes which had some bearing on the background to the events which occurred
in 1985. Mr Plowman helpfully reduced the material to a number of what he
described as being “main points” which he submitted were of particular
importance to the conduct of the present appeal. He made detailed submissions
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C.H. Low‟s motives to lie
(i) To secure an immunity for his mistress Yong.
The simple answer to this was that when C.H. Low gave his evidence
Yong already had an immunity.
Mr Plowman submitted that C.H. Low had referred on the tapes to all
the problems which existed if Yong remained in Taiwan including the fact that
both she and the son she had borne him would have been vulnerable to triad
elements in Taiwan. This part of the submission has been effectively answered
by the present factual situation. Notwithstanding these fears and the fact that
Yong did obtain an immunity she is or was until recently resident in Taiwan.
The material on the tapes on this subject appears not to be of any assistance to
(ii) C.H. Low‟s ill feeling towards the appellant.
There can be no doubt that there are a number of passages on the
tapes which clearly indicate that there was no love lost between these two men.
Mr Plowman submitted that it was evident that C.H. Low hated the appellant.
This is probably correct. However this was hardly breaking new ground. At
the trial C.H. Low agreed that he had been furious with the appellant as a result
of the civil proceedings he had seen fit to institute. He also agreed that he had
been quite prepared to deceive the appellant on important matters on least two
occasions. He had also been prepared to be instrumental in writing a number of
poison letters to prominent people in Hong Kong blackening the character of
We have no doubt that the jury were fully aware of C.H. Low‟s
feelings towards the appellant and the addition of the material on the tapes
would have added nothing.
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(iii) The time when C.H. Low started an intimate relationship with Yong.
Mr Plowman submitted that it was evident from the tapes that
intimacy had first taken place in 1984 and not 1986 as claimed by both parties
at the trial. The significance of this was that C.H. Low would almost inevitably
have been anxious to protect Yong and any action taken by her from a much
Mr Aiken took us through the relevant parts of the transcript of the
tapes. We accept his contention that at best there is ambiguity as to when the
There was the observation by Keith J in his summing up that it was
unlikely that the affair had started in 1984 as at that time Yong as his secretary
was making reservations at restaurants for C.H. Low to accompany various girl
friends to meals.
Be that as it may this is a non point. It may well have been the case
that C.H. Low felt affection towards Yong even in the absence of a physical
relationship. There is no reason to suppose that he would necessarily have been
less protective towards the lady simply because there was an absence of sexual
intercourse. Conversely even if a physical relationship existed it does not
necessarily follow that C.H. Low would have protected her interests.
Also of course the fact that Yong may have been acting at the
instigation of C.H. Low would in no way reduce the criminality of her acts. It
would only amount to some mitigation. The tapes do not take matters any
C.H. Low‟s desperation to sell his and Victor Tan‟s shares in IHD
- 28 -
Mr Plowman contended that the extracts from the tapes which
established this were important as they shed light on the negotiations and
background of the sale which was at the centre of the conspiracy.
The difficulty with this submission is that there is very little
difference between what is said in the tapes and the evidence given by C.H.
Low at the trial. C.H. Low admitted in cross-examination that he had been
anxious to sell. We agree with Mr Aiken‟s contention that anxiety to sell and
desperation to sell is a matter of semantics.
However even if C.H. Low was desperate to sell the shares it is
significant to note that in December 1985 he offered to buy back the shares at a
price which would give the appellant a profit of $20 million and this offer was
Mr Plowman placed emphasis on the importance of the sale to
C.H. Low and the pressing need for funds and that this had been the reason for
what had been described as the “cozy” terms of the agreement between the
parties. To make sense of this it is necessary to have regard not only to
C.H. Low‟s position but also the position of the appellant. He went along with
the “cozy” terms. He made a false statement in the underlying agreement to the
effect that the balance of the purchase moneys, $127 million had been paid
when this was not the case.
What is of significance is that the idea of the sale being dictated by
C.H. Low‟s desperation is inconsistent with the facts of the case. Had C.H.
Low been desperate to sell the shares it is unlikely that he would have agreed to
what was described as the vendor financing arrangement.
Perhaps the most important aspect of the case which was before the
jury was the fact that the appellant never paid the balance of the purchase price.
- 29 -
Having said all of this it must be added that, as submitted by
Mr Aiken, C.H. Low‟s motives for the sale were irrelevant and immaterial.
Any attempt by the defence to canvass these motives would probably have been
frustrated as Keith J would have been unlikely to allow this material to have
Mr T.H. Quek
Mr Plowman submitted that the defence cross-examination of this
witness was gravely handicapped as a result of their not having available to
them the material referred to by C.H. Low on the tapes. Had this material been
available they would have been able to effectively attack his evidence that he
was simply a dupe acting at the behest of C.H. Low. This emerged as
Mr Plowman‟s main point on non-disclosure. He argued that it was apparent
from what was said on the tapes that Quek‟s role had been far greater than
simply acting on C.H. Low‟s instructions. He had a substantial interest in IHD
himself and may have had a motive for testifying against the appellant.
Mr Aiken dealt with this submission in some detail. He took us
through the statements which had been given by C.H. Low, Yong and Quek
himself together with two lengthy cautioned statements made by Quek on
12 and 13 June 1987. There was a substantial amount of material in these
statements relating to Quek‟s background, his overall financial situation and the
dealings he had had with the KWB and the Low brothers.
In addition to this the prosecution had made available to the defence
the records of the KWB including Quek‟s credit position with them and the
basis upon which the bank was prepared to grant to him credit facilities. It was
evident from these records that Quek had been a man of some financial
substance independently of the Low brothers. Most if not all of the matters
referred to by C.H. Low on the tapes was available to the defence had they
taken advantage of all of these sources.
- 30 -
Mr Aiken submits that the defence did not see fit to take advantage of
this material at trial so that there is no reason to believe that the cross-
examination would have been any different had the tapes been available. We
What is of further importance in connection with this application is
that none of the material on the tapes deals directly with the central issue of the
appellant‟s case namely whether he was aware of the circle of cheques at the
completion. Nor does the material shed light upon any possible motive Quek
may have for framing the appellant.
It needs to be borne in mind that Quek was put forward as an
accomplice and Keith J gave the usual warnings relevant to such evidence.
Late Discovery by CH Low of the failure of Victor Tan to repay any of the IHD
There was a great deal of material on the tapes on this subject.
Mr Aiken dealt with all of the matters referred to by Mr Plowman in
his outline argument. What does emerge from all of this was that C.H. Low did
eventually realise that there was no prospect of the IHD loans to the KWB
being repaid. This realization may have been a factor in C.H. Low‟s motivation
to attempt to pass on the problem to a purchaser of a substantial block of shares
in the company.
All of this needs to be considered in the context of the financial
arrangements which were being negotiated. The only moneys being paid by the
appellant was the $109 million which he through his company had borrowed
from the KWB. According to C.H. Low it had been the intention that the
liability for the balance of the purchase price was to be assumed by the
appellant. The appellant had - according to him - pleaded with him to devise a
scheme whereby payment of the balance could be deferred.
- 31 -
The material on the tape would have been of extremely limited use to
the defence. At best it may have shed some light on C.H. Low‟s motivation at
the relevant time. What C.H. Low or the appellant‟s motives may have been is
not a relevant matter. What they did was what was important. Perhaps the
main significance of this evidence is that it is the strongest support for what
Reid says in his affidavit. In his affidavit he claims that C.H. Low told him that
one of the most important matters was his realization at a very late stage that
IHD‟s indebtedness could not be discharged and hence the necessity to find a
solution to the problem. He had been advised by Victor Tan that the proceeds
of the sale of the four floors had been applied for other purposes. There is
however nothing very novel in all of this. This may have been of some
relevance to C.H. Low‟s motivation. It cannot however be said to have had a
direct relevance to the main issues which had to be determined by the jury.
Part of this material has already been dealt with under the earlier
heading of C.H. Low‟s motive to lie. It is not necessary to repeat the alleged
inconsistencies concerning the time when the admitted friendship became an
Mr Plowman submitted that the material on the tapes concerning
Yong would have assisted the defence. In particular the defence had been
unaware that when Yong had prepared her detailed statement she had been in
possession of not only the files and papers relating to IHD‟s civil proceedings
but also the affirmations which had been prepared by C.H. Low.
One matter which emerged from this was that Yong had not referred
in her first statement to the rehearsal meeting prior to completion when the
parties rehearsed what would be done at completion taking cognisance of the
“round robin” scheme or the circle of cheques procedure which had been
decided upon. Mr Plowman argued that this was significant as Yong had
- 32 -
subsequently given evidence of the existence of such a rehearsal. This strongly
supported the existence of collusion between Yong and C.H. Low.
This is not however by any means conclusively established. When
Yong made her initial statement she had not been asked about the rehearsal
meeting. When she was asked she remembered it and the details she gave of
the meeting did not correspond with the evidence given by other witnesses.
Mr Plowman submitted that the most important evidence on the tapes
relating to this lady was the rather reluctant admission by C.H. Low that Yong
had been guilty of forgery. Had this admission been known to the defence a
much more effective cross-examination of Yong could have been mounted.
We are unable to agree. We have earlier commented upon Yong‟s
alleged forgery, and no useful purpose would be achieved in repeating the
observations we have already made.
Mr Marash for the appellant submitted that the alleged forgery of the
mandate was a critical piece of evidence on account of the fact that if the dates
had not been changed it would have been impossible for the cheque kiting
operation to be effected. For reasons given later this submission is plainly
The fact remains that Yong denied forging the mandate and this
denial appears to have been accepted by the jury. We think that even if the
contents of the tapes had been known to the defence the outcome would
inevitably have been the same. The issue was before the jury and Yong was
fully cross-examined upon it.
Mr Marash did not develop the material in Mr Plowman‟s outline
argument. We considered the points. There is nothing in them.
- 33 -
Conclusion on audio tapes
In our view, the tapes should properly be considered as unused
material. Undoubtedly they should have been disclosed to the defence at a
much earlier date. It is a matter of importance that the disclosure of the tapes
was not made known to Keith J during the trial as he was in a far better position
than this court to evaluate the effect of the late disclosure and make an order
which would provide for the interests of all parties. The decision not to make
an application while not necessarily fatal does have a significant bearing on the
outcome of this application, we must still consider whether in these
circumstances it is expedient or in the interests of justice that the application
should be acceded to.
Having regard to the material on the tapes, Mr Aiken has made good
his submission that nothing new of importance has been revealed and that the
material is exclusively peripheral to the main issue before the jury whether the
appellant was a party to the conspiracy in the first charge.
The tapes ought to have been disclosed timeously to the defence.
They were not disclosed until late. Defence counsel chose not to raise this late
disclosure with the judge to obtain his ruling upon the matter. This late
disclosure was an irregularity in the trial but for the above reasons it would not
have made any difference to the outcome and in all the circumstances it was not
a material irregularity.
The result is that these grounds of appeal fail. Nor do the matters
raised have any material impact upon the remaining grounds of appeal.
This was that the learned trial judge erred in failing to remind the jury of
the evidence of dishonest collaboration of C.H. Low, Yong and Quek in 1986
in relation to their defence in civil proceedings, in failing to direct the jury to
- 34 -
approach their evidence with great care and sustained suspicion and by
misdirecting the jury to ignore the evidence of Yong in regard to the meeting of
16th August 1985.
A considerable amount of time was spent on this ground.
It was undoubtedly true that there had been collaboration between all
of the conspirators in relation to the civil proceedings which the appellant had
commenced at the beginning of 1986.
It also has to be borne in mind that in effect the appellant was the
plaintiff in those proceedings and C.H. Low, Yong and Quek (inter alia) were
On the one hand this would have provided a strong motive for the
conspirators to testify against the appellant. On the other hand it is perhaps not
surprising that co-defendants should if possible present a plaintiff with a
common front and it would be understandable that there should be some
collaboration to ensure that the defences which they would be running would
not be inconsistent with the defences filed by their co-defendants. That would
not necessarily be improper.
The question which we have to consider is whether in all the
circumstances of the case the directions given by Keith J were such that the
appellant received a fair trial.
Both Mr Plowman and Mr Marash submitted that the directions which
were given to the jury were inadequate and unsatisfactory. Where in a case
such as this where there may well have been collaboration between the main
prosecution witnesses it was particularly important that assistance should have
been given to the jury on inconsistencies in the evidence given by these
witnesses not only in the trial below but also in the civil proceedings.
- 35 -
One of the areas where there were numerous and important
inconsistencies was on the subject of the rehearsal meetings allegedly arranged
to ensure that when completion was effected it would be possible to set in
motion what has been described as the cheque firing scheme whereby the
purchase moneys for the shares would immediately be withdrawn and utilised
for other purposes. This was at the centre of the conspiracy the subject matter
of the first count.
In her first statement to ICAC Yong did not make reference to any
rehearsal meeting. At the trial she gave evidence of a meeting in C.H. Low‟s
office at the KWB on the evening of 16 August which was attended by herself,
Quek, Chew and C.H. Low, who talked to the appellant on the telephone during
the meeting. Shortly after giving this evidence the court adjourned as Yong
claimed to be feeling unwell.
When the court next resumed, Yong remembered another rehearsal
meeting at the coffee shop of the hotel at which either Quek or Chew had been
staying. Besides herself this meeting had been attended by C.H. Low, Quek
and the appellant. This evidence was at variance with the evidence given by
C.H. Low and Quek. C.H. Low said that the meeting on 16 August had been in
Quek‟s hotel room and that it had been attended by himself, Quek, the appellant
According to Quek the meeting on 16th had been in the lounge of the
hotel at which he had been staying i.e. the Regal Meridien. It was attended by
himself, C.H. Low and the appellant.
In summing-up on this subject Keith J said at p.151:
“ Members of the jury, it is a matter entirely for you. The question of the
reliability and credibility of witnesses is your province and your province alone.
But Doreen YONG‟s evidence of the events of the 16th of August chopped and
changed so much, and was so inconsistent with her statement to the ICAC of
November 1991, that you may think that the safest thing to do is simply to put her
evidence to one side. My advice to you therefore - and it is advice only because
- 36 -
the facts are for you, they are not for me - my advice to you is to concentrate as to
what happened on the 16th of August on the evidence of C.H. LOW and QUEK
and ignore Doreen YONG‟s evidence entirely.”
Mr Plowman submitted that this direction was unsatisfactory. Having
regard to the background of the case and the possibility of collaboration it was
necessary to direct the jury on the possibility that some or all of the evidence
may have been fabricated.
This is a matter which cuts both ways. If there are significant
inconsistencies in the prosecution case this of itself would be an indication of a
lack of collaboration. Had the witnesses compared notes they would have
ironed out the more obvious inconsistencies such as those relating to the
location, number and dates of the rehearsal meetings. Keith J did give full
directions on the absence of corroboration, the participation of the accomplices
in the fraud on IHD and on the characters of these witnesses. He clearly left the
general issue of collaboration to the jury. This was central to the defence case
and cannot have been overlooked. No doubt this defence would have prepared
this part of the summing-up to be differently expressed but the judge does not
have to deal with any part in his summing-up and taking this summing-up as a
whole this is not a material misdirection or unfair. This ground fails.
This ground can conveniently be considered in two parts. The first
part comprises a complaint that Keith J failed to alert the jury to inconsistent
evidence on an important issue in the proceedings.
The second part is the complaint that the judge misdirected the jury
when commenting upon C.H. Low‟s evidence upon how the $36 million should
be treated in the documentation relating to the sale and purchase of the shares.
- 37 -
In determining whether the complaint on the first part can be
sustained it is necessary to assess the importance of this issue. Dixon was
according to Yong‟s evidence chosen as the vehicle to receive the assets which
it was contemplated the appellant would be transferring to IHD. The complaint
is made that Yong was performing executive functions in this company some
weeks before the agreement was struck between C.H. Low and the appellant for
him to acquire the interest in IHD according to C.H. Low‟s evidence.
The other complaint of inconsistent evidence is that C.H. Low‟s
testimony that he informed the appellant of the $36 million which was owed to
IHD cannot be reconciled with Yong‟s evidence relating to Dixon on the
subject of timing. C.H. Low claimed that it was only at a late stage that he
came to know that Victor Tan had syphoned off these moneys and that they
could not be replaced at short notice. This evidence was inconsistent with the
evidence to the effect that C.H. Low had informed the appellant at an earlier
date of the exact amount which would be repaid on completion.
Although Dixon did form an integral part of the alleged scheme it is
artificial and misleading to have regard to this evidence in isolation.
At the time when the moneys referred to were being withdrawn by
Yong no contract had been entered into between the appellant and C.H. Low
and certainly the appellant had not assigned any assets to Dixon. At that stage
there were only discussions concerning possible intentions.
Also it is necessary to bear in mind that C.H. Low did not give
evidence which was directly conflicting with Yong‟s. Mr Plowman was
attempting to read too much into C.H. Low not commenting on the matters
Yong had referred to in her evidence. C.H. Low did give evidence of how the
scheme was to operate. He did so in fairly general terms and did not
condescend to detail as did Yong.
- 38 -
Having regard to the enormous amount of evidence covered by
Keith J in his summing-up it is understandable that he did not outline the
differences in the approaches of these two witnesses to this aspect of the case.
In any event Mr Corrigan had put the defence case with some force
before the jury and they were fully acquainted with the contentions being
advanced by the defence.
The second part of this ground relates to the way in which Keith J
summed up to the jury on C.H. Low‟s explanation for not providing for the
repayment of the $36 million in the sale and purchase agreement.
Keith J said at p.104:
“ C.H. Low‟s explanation was this: the Sale and Purchase Agreement was
based on the unaudited accounts up to the 31st of May. Since the $89m. had been
taken out of IHD prior to the 31st of May, that debt was reflected in the unaudited
accounts. The $89m. was there. However, the $36m., as he had seen from the
Accordance bank accounts, was taken out of IHD only in June and therefore it
would not have been reflected in the unaudited accounts up to the 31st of May. It
would only be reflected in the audited accounts up to the 30th of June.
Since any differences between the two accounts would be reflected in an
adjustment to the purchase price to be made pursuant to Clause 7, there was no
need, said C.H. LOW, for the agreement to refer to the return of this $36m. as
well. If the $36m. was returned to IHD as C.H. LOW told Mr CH‟NG it would
be, no one would be any the wiser that for a couple of months other people had the
use of the money.
Members of the jury, it is a matter entirely for you, but you may think that
C.H. LOW‟s explanation for there not being a reference to that $36m. in the Sale
and Purchase Agreement, despite the claims that Mr CH‟NG knew about it some
time before the Sale and Purchase Agreement, is a rational one.”
It is true that the withdrawal of the $36 million was effected
subsequent to the period of the unaudited accounts which were referred to in
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All that Keith J was saying to the jury was that there was some
rationale to the explanation which had been given by C.H. Low. He was not
saying that it was a plausible or convincing explanation.
The important point however was that it was common ground that the
appellant did - prior to completion - know about the $36 million, and the
explanations given by C.H. Low and the appellant were clearly matters which
were before the jury and it was up to them to decide which version of the
evidence was to be accepted.
That leaves the complaint on the rather technical accounting point as
to whether clause 7 of the Agreement would provide the necessary protection in
respect of the moneys. Mr Aiken contended that as this problem had not been
put to C.H. Low when he gave evidence it was not now open to the defence to
raise the matter on appeal. Perhaps C.H. Low might have been able to provide
an explanation if he had had an opportunity to do so. There is considerable
merit in this submission.
In our view this ground of appeal has not been made out.
We reject this ground of appeal.
Ground 5 complained of a number of factual misdirections and
failures to direct. Having been addressed upon them at some length, we think
they can be disposed of relatively shortly.
The principal matter to which they relate are aspects of Yong‟s
conduct and evidence. We have already dealt with much of those.
Undoubtedly, Yong‟s evidence was less than satisfactory. Almost certainly she
was either telling lies in relation to the mandate or her memory of the details
was defective. The defence succeeded in establishing that the mandate dated
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2 September 1985 had originally been dated 16 August and had been amended
to the former date. The consequence of this was to destroy the explanation
which had been given by Yong for the delay in lodging the mandate namely the
absence of Peter Lo the solicitor who it had been proposed would be one of the
signatories of the IHD account. According to Yong‟s evidence Mr Lo had been
on leave and out of Hong Kong from after 16 August.
The defence submitted that this was an issue of critical importance
because if the mandate had been lodged as had been intended on 17 August it
would not have been possible to set in motion the circle of cheques which was
the subject matter of the conspiracy.
This is not the case. For the whole scheme to make any sense it must
have been intended that the sequence of events at completion would have
necessitated the presentation of the cheques prior to the lodging of the
mandates. What it all boiled down to eventually was who was to be believed
Yong or the appellant. There were some indications that Yong did indeed have
authority to defer lodging the mandates. It would appear that the Dixon
mandate was also dated 2 September.
It seems inherently unlikely that the appellant would have agreed, as
he claimed to have done in his evidence, to sign the Board resolution relating to
the mandates leaving the date in blank.
Another complaint, the so-called “plundering” of the account after
17 August, is not necessarily indicative of the appellant‟s version being the
truthful one. Many of the items were of a relatively minor nature. Even the
larger payments might have been consistent with the expenditure being
properly payable by the new management of IHD despite the signatures being
those of the previous management.
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At the conclusion of the summing-up Mr Corrigan informed Keith J
that he was not satisfied with the way in which this subject had been treated in
the summing-up. He made a submission to him as to how he considered the
matter should be dealt with.
Keith J then gave at p.214 as further directions those complained of in
Taken together with the immediately following passages at pp.215
and 216, they form, in our view, accurate statements of the position which
cannot be faulted. The evidence was all squarely before the jury and it was for
them to decide the issue. We find no merit in this ground.
Ground 6 was that the judge failed adequately or at all to deal with
three matters that illustrate the illogicality of the conspiracy charged.
In hindsight, we have to say that we can see considerable merit in
Mr Aiken‟s submission that it is not a constructive exercise to attempt to justify
the logic of these various partly criminal transactions to the participants or
alleged participants in the scheme. Doing so almost inevitably involves
indulging in fruitless speculation.
It is however necessary to make the point that the submission upon
the first of the three matters advanced is obviously misconceived. It was
submitted that the conspiracy involved the appellant transferring assets worth
$127m to IHD for a 60% interest in place of the 100% interest he and an
associate formerly held, resulting in a direct loss of $50.8 million.
On the evidence the purchase price for the 60% interest in IHD was
$232 million. This had to be paid for. The total value of the company was on
the material available far in excess of $232 million. Rather than sustaining a
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loss in the order of $50 million the evidence indicated that the appellant would
gain approximately $40 million.
This point and the other two were all before the jury, and Keith J‟s
directions accurately set out what had to be decided.
There is no substance in this ground.
The complaint made in this ground is that in the matters which are
referred to Keith J attributed various theories and arguments to the Crown. It
has to be said that these matters, even the two particularly relied upon before
us, are peripheral to the central issues.
The simple answer to the complaint is that while the judge did make
comments upon the evidence referred to, he did not advance any theories but
left all of the matters open to the jury, and moreover did so in a way that was
fair. We reject this ground also.
This is as follows:-
“8. The learned trial judge erred in misdirecting the jury that:
(a) LOW Chang-hian testified that the Appellant knew that the HK$89 million
loan and the sums totalling $36 million, recorded as loans and share
investments in the books of IHD and being due from Seareef and Arrifin
and Low, were not loans at all but book entries designed to conceal the fact
that such sums had been taken out of the accounts of IHD and its
subsidiaries to pay off the debts of other companies controlled by LOW
Chang-hian and Victor Tan.”
There is no merit in this ground. From the surrounding circumstances
it was improbable that the loan was a genuine loan. As pointed out by
Mr Aiken $89 million represented something of the order of 25% of the total
assets of the IHD group of companies.
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Keith J did not say that the loan constituted a fraud. The remarks he
made were moderate and would not have unfairly influenced the jury.
Ground 9 is as follows.
“9. That in the aforesaid premises generally and further, in relation to Count 2,
in view of the fact that the Crown presented its case on the basis that the
Appellant‟s guilt on Count 1 was probative of his guilt on Count 2, the
conviction of the Appellant on both counts is unsafe and unsatisfactory.”
With the rejection of all the earlier grounds, this final ground does not
come into play. It is, in any event, misconceived. The Crown presented its
case on the basis that both counts were separate and independent of each other.
This was clearly the case. Even if the appeal was successful on the first count,
that would not be fatal to the second count.
There is no merit in this ground.
Having found that there is nothing of significance in the grounds of
appeal individually, we turn to their cumulative effect, upon which the
appellant relied primarily.
In a case of the present factual complexity, length and sheer volume
of evidence, it would be remarkable indeed if there was nothing in the
summing-up which could be questioned. But all such matters that have come
or been brought to our attention are, in our view, immaterial for the reasons we
have given. Having reviewed the entire summing-up, particularly in the
context of counsel‟s submissions and the grounds of appeal, there is no
misdirection of law or fact that is material. The facts and the issues were fully
and fairly left to the jury. Given the volume of evidence and the complexity of
the matter, we think the judge admirably identified the questions to be
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addressed and reviewed the evidence in relation to them in a commendably
helpful and fair way.
The jury were properly directed upon the law and the issues were
clearly left to the jury for their decision. It was supported by considerable
circumstantial evidence and it was open to them to accept the prosecution
evidence. On this evidence the case was overwhelming. We have no hesitation
in dismissing the appeal against conviction.
We add that in the light of the latter we are satisfied that the verdict is
not unsafe or unsatisfactory, and that the jury would not have come to any
conclusion other than that they reached even if all the appellant‟s complaints
had been fully met in or prior to the summing-up.
Before we leave this matter, we wish to record our concern about the
somewhat cavalier attitude of the particular ICAC officers concerned to the
duty of disclosure of material that is or may be relevant. The discharge of that
duty is to be measured, we think, not by the actual knowledge or difficulties of
the prosecution or departments concerned, but by the potential effect upon the
defence of the accused and the extent to which it may be assisted or prejudiced.
Although we have fortuitously been able to discount such prejudicial effect, it
has to be said that the circumstances and evidence point strongly not merely to
lack of endeavour to identify and locate relevant material commensurate with
the duty of disclosure, but to what seems to have been conscious failure to
disclose. We direct, in the circumstances, that a copy of this judgment be sent
by the Registrar to the Commissioner of the ICAC, in order that he may give
the matter due consideration.
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(G.P. Nazareth) (Barry Mortimer) (Simon Mayo)
Vice President Justice of Appeal Justice of Appeal
Mr Nigel Aiken QC and Mr Andrew Chow for Crown Prosecutor
Mr Gary Plowman QC and Mr Daniel Marash (Haldanes) for Applicant