HKSAR v. HA BUT-YEE

HCCC 290 & 319/2016 (Consolidated) [2023] HKCFI 1208 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NOS 290 AND 319 OF 2016 BETWEEN HKSAR Applicant and HA But-yee (D2) Respondent __________________________ Before: Hon Campbell-Moffat J in Court Date of Hearing: 27 April 2023 Date of Decision: 11 May 2023 ________________ DECISION ________________ This is an application under Part III, s8 of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”) for a Confiscation Order in the sum of $63,000,000 being the value of the realisable property of the respondent HA But-yee. This is less than the value of the respondent’s proceeds of crime, which is assessed by the Secretary for Justice as being in the sum of $125,664,254.30. Chronology of Proceedings The respondent was D2 in a re-trial due to commence on 22 January 2018. On that date, the 1st and 2nd defendants (“D1 & D2”) pleaded guilty on a re-amended indictment dated 15 January 2018, to one count of being an agent, accepting an advantage and one count of offering an advantage to an agent, under SS9(1) (a) and 9(2) (a) of the Prevention of Bribery Ordinance, Cap 201 (“the POBO”) respectively. The matters, which formed the basis of those pleas, took place between 16 January 2007 and 7 May 2008. The defendants were arrested on 12 April 2011. They were released on ICAC bail on 13 April 2011. They entered pleas of not guilty before the Eastern Magistrates Court on 21 September 2012. The first trial took place between 16 September and 6 December 2013, before Mr Justice Patrick Li. That trial consisted of 5 defendants, who faced 8 counts. Mr Ma and Mr Ha were D1 and D2 respectively. D3, D4 and D5 were Mr Ha’s two sons and his younger sister. The jury convicted D1 after trial on Counts 1 to 4; D2 of Counts 5 to 8 and acquitted D3, D4 and D5. D1 and D2 received the following sentences on 9 December 2013: D1 Count 1 – 4 years Count 2 – 3 years Count 3 – 6 years Count 4 – 3 years With 6 months on Counts 1, 2 and 4 to be consecutive to each other and consecutive to Count 3, making a total of 7 years 6 months but from which the Judge then deducted 6 months to reflect the defendant’s previous good character. The Court also made a restitution order of $24.8 million in favour of Deutsche Bank. D2 Count 5 - 4 years Count 6 - 3 years Count 7 - 6 years Count 8 - 3 years With 6 months on Counts 5, 6 and 8 to be consecutive to each other and consecutive to Count 7, making a total of 7 years 6 months but from which the Judge then deducted 6 months to reflect the defendant’s previous good character. On 10 December 2013, D1 filed a Notice of Appeal. On 2 January 2014, D2 also filed a Notice of Appeal. Leave to appeal both conviction and sentence was granted on 30 June 2015. Their appeal was heard over a period of 7 days in February and March 2016. The appeal was allowed and a re-trial was ordered on 17 June 2016, for D1 and on 11 July 2016, for D2. On 3 August 2016, the two trials were consolidated and the matter was adjourned by agreement until early February 2017. The re- trial came before this Court for the first time for PTR on 8 and 9 August 2017, with a trial date fixed for 22 January 2018. The prosecution asked for time to serve a further expert report and to consider an amended consolidated indictment. The next hearing was on 17 October 2017, at which time the defence took objection to the new amended indictment, which was unsuccessful. There was a further hearing on 13 December 2017. By this date it is accepted that the parties were in negotiation as to plea. This Court was not informed of the plea until the 3rd PTR on 15 January 2018, resulting in the defendants entering a plea to the re-amended indictment on 22 January 2018, which was intended to be the first day of trial. The Prosecution Case for Plea Count 2 of re-amended indictment dated 15 January 2018, to which D2 pleaded guilty was as follows: STATEMENT OF OFFENCE Offering an advantage to an agent, contrary to sections 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap 201. PARTICULARS OF OFFENCE Ha But-yee, between the 16th day of January 2007 and 7th day of May 2008, both dates inclusive, in Hong Kong, without lawful authority or reasonable excuse, offered advantages, namely, gifts, loans, fees, rewards or commissions consisting of a total amount of $6,391,758 Hong Kong currency to an agent, namely MA Sin-chi, being an agent of Deutsche Bank Aktiengesellschaft and Deutsche Securities Asia Limited, as inducements to or rewards for or otherwise on account of the said MA Sin-chi doing or having done acts in relation to his principals’ affairs or business, namely: Giving information to the said HA But-yee and his associates on derivative warrants issued by Deutsche Bank Aktiengesellschaft and of which Deutsche Securities Asia Limited was the liquidity provider, which may assist the said Ha But-yee and his associates in their trading of those derivative warrants; Rendering assistance to the said HA But-yee and his associates in their trading of those derivative warrants, in particular, their trading of: Derivative warrant number DW03539 on or about the 4th day of June, 2007; Derivative warrant number DW02454 on or about the 9th day of August, 2007; Derivative warrant number DW06899 on or about the 5th day of October, 2007; Derivative warrant number DW04479 on or about the 3rd day of September, 2007. That offending took place between 16 January 2007 and 7 May 2008. At that time, D1 was employed by Deutsche Bank Aktiengesellschaft (“Deutsche Bank”), initially as Vice President, Warrant Trader, Derivative Trading Group and in February 2007 onwards, as a Director of Deutsche Bank. He was the Chief Trader in that department at the relevant time. As such, he was licensed to deal in Securities and Futures by the Securities and Futures Commission and was responsible to his employers for market making in derivative warrants amongst other things. As a Warrant Trader, D1 was not permitted by his Principal to apply favourable terms or treatment to any particular client based upon personal considerations as Deutsche Bank, and the market, expected all clients to be treated equally. It follows that no trader should give information or advice to a particular client concerning specific derivative warrant transactions, other than in general terms as to the current market price and liquidity, and certainly not as to specific prospective prices or liquidity concerning specific derivative warrants. It also strictly prohibited staff members from accepting bribes of any sort and forbade them from accepting anything of value in return for confidential information belonging to the bank. At this time, D2 was trading, inter alia, in Deutsche Bank derivative warrants (“DBWs”) through D1. It is the prosecution case that D2 spoke with D1 on an almost daily basis and they discussed both the market generally and specifically. In particular, the prosecution alleged, and the defence accepted, that D1, on a continuous basis, provided information by means of 356 telephone conversations by way inter alia of specific recommendations to D2 as to which Deutsche Bank warrants to trade; responding to enquiries from D2 about pricing of particular DBWs and responding to enquiries from D2 as to whether particular warrants were being priced manually or automatically. In addition to that general and specific information, D1 rendered continuous assistance to D2 and his associates in their trading of DBWs. By way of specimen examples of such assistance, such assistance was given by providing D2 with a bid which allowed D2 to exit DW 03539 on 4 June 2007; by helping D2 get out of trade in DW02454 on 9 August 2007, which D2 had purchased at too high a price; by selling DW06899 to D2 on 5 October 2007 at a lower price and by selling back 2 million of DW04479 to D2’s son when his son had oversold 2 million of that warrant. It was the prosecution case, and accepted by D1 & D2, that the Ha family made a total net profit of $203, 689,156.68 through the trading of DBWs during the relevant period and that D1 received a total of $6,391,758 from D2 during the same period as a reward for information and assisting them to do so. That reward was provided to D1 in the form of cheques and bank transfers by Ha Shing-ming, Ha Shing-chi and Ha Sau-mei, (D3, D4 and D5 in the original trial). The payments were deposited into accounts of D1 and his wife in Standard Chartered Bank, Hang Seng Bank and HSBC. The details of which were set out within Annex A to the Summary of Facts. Annex A shows 35 transfers in sums ranging from HK$400,000 up to HK$1,200,000 (all in round figures) amounting in total to HK$24,800,000. This figure was offset by the cumulative net profit of HK$18,408,242 made by D2 on behalf of D1 in trading Hang Seng Index Futures (in and of itself a questionable exercise but not the subject of this indictment). Ha Shing-ming and Ha Shing-chi are the sons of D2. Ha Sau-mei is his sister. Their accounts were used to channel the reward to D1. That was because D2 was an undischarged bankrupt and could not trade on his own account. Nevertheless, he was an “Authorised Person” for the trading accounts of his sons and for the securities and commodities accounts of his sister and his wife, Madam Yam Mei-lin, which were held with Celestial Securities Limited (“CSL”). By reason of his plea, D2 accepted that he was trading these accounts and was responsible for the monies paid to D1. According to both prosecution experts at trial, D2 and his two sons adopted a rapid-fire pair trading strategy, that is buying and selling repeatedly within a short time. They made a net profit of $203,689,156.68 during the relevant period. The profit making trend in trading DBWs by D2 and his two sons was not sustained in their trading of non-Deutsche Bank warrants (“NDBWs”). By reason of their plea, the defendants accepted that the level of profit from the rapid-fire and pair trade strategy was not possible without the information and assistance provided to D2 and his associates by D1, who was the market maker in most of the transactions during the relevant period. Application before the Court There have been four S10 Statements placed before the Court for the purposes of these proceedings. Both parties now ask the Court to limit itself to the first 2 statements by Mr Sudhir Gidwani, Chief Investigator, dated 9 April 2018 and 22 October 2018. The Secretary for Justice asks the Court to certify the defendant’s proceeds of crime in the sum of $125,664,254.30 and to make a Confiscation Order in the sum of HK$63,000,000, being the agreed value of the realisable assets of D2. Legal Principles This application is made under S8 of OSCO. The Court must be satisfied inter alia on a balance of probabilities of the following: the respondent has benefitted from a specified offence; and, if so that his proceeds of that specified offence are in total at least $100,000, and, if so determine the amount to be recovered in accordance with s11. There is no issue as to whether the defendant has benefitted from a specified offence and the parties have agreed a compromise figure as to the realisable assets of D2 in the sum of $63,000,000. As a consequence, the only outstanding issue is the quantum of the proceeds of this offending, whether that is greater than or less than the agreed realisable assets. A person’s proceeds of crime are defined under s2(6) of OSCO as the aggregate value of: any payments or rewards received by him at any time …in connection with the commission of that offence; any property derived or realised, directly or indirectly, by him from any of the payments or rewards; and any pecuniary advantage obtained in connection with the commission of that offence. The benefit gained by a defendant covers the total value of the property or advantage obtained in connection with the offence and not the net profit after setting off expenses, outgoings or losses. The Secretary for Justice submits D2’s benefit is HK$125,664,254.30. Respondent’s Submissions Proceeds of Crime Mr Robert Lee SC submits that the amount of benefit should be limited to $4,629,650 (the four “smoking gun” incidents identified within the indictment) plus a sum of up to a further (a) $927,814 (Average Profit Method) or (b) $5,127,920 (Actual Profit Method) or (c) $6,374,917 (Ratio Profit Method), which is derived from 34 out of the 356 telephone calls made between D1 and D2 during the relevant period. It is Mr Lee’s primary submission that the Court should determine this issue by means of a three stage approach. Firstly, by deciding whether the respondent had benefitted from the offence. Secondly, by deciding whether the respondent received payments/trading profits “in connection with the commission of the (relevant) offence”. Lastly, the Court must quantify that profit in accordance with s11 of OSCO. This is what he refers to as the illegality, causation and quantification requirements. For these purposes, Mr Lee SC submits that the Court must consider the relevant offence and the manner in which that offence was committed. In this case, that was the provision of information by D1 to D2 via 356 phone calls which “may assist” D2 and his associates in their trading of DBWs and the direct rendering of assistance, examples of which have been provided within the indictment and referred to as “the smoking gun” incidents. He asks the Court to break down that “information and/or assistance” by incident such that the Court is required to look at each and every telephone call to satisfy itself that some form of offending took place. Having confirmed that offending, the Court may go on to consider the gain made from the ensuing trade. It is his proposition that the act of providing information and/or assistance must be connected to an actual subsequent trade which makes a gain. For this proposition he prays in aid the Expert Report of Cheng Kai-sum (“CKS”), in which CKS identifies 75 of the 356 telephone calls, which cover situations either where there is an enquiry as to the pricing of a DBW or where there is an enquiry as to whether the quotes for a DBW were manual or computer generated. Of these 75 telephone calls, Mr Lee SC submits that CKS identified 34 as containing information which “may assist” D2’s warrant trading in that they were followed by a trade and a gain. Mr Lee SC maintains that exercise was carried out by CKS and is reduced to tabulated form at CKS-22 & 23 of his report. The prosecution’s application should therefore be limited to those figures. If the Court accepts that proposition, the Court may then go on to assess the value of D2’s proceeds of crime by any of three possible methods. The greatest liability from which would amount to HK$9,747,570 under the Actual Profit Method. There is no necessity to explain the proposed methodology here save to say that I have considered it in detail and that I can see no merit in any calculation other than one which simply adds together all of the gains made without any offset for losses. Applicants Submissions in Reply Ms Fu, on behalf of the Secretary for Justice, maintains that D2’s proceeds of crime are HKD 125,664,254.30 and that his realisable assets have been agreed at a compromise figure of HKD 63,000,000. The former is based upon the admissions made by D2 in the current proceedings to which he pleaded guilty upon an agreed Summary of Facts covering a total of 356 phone calls between the parties and which is established under the two S10 Statements of Mr Sudhir Gidwani dated 9 April 2018 and 22 October 2018. Ms Fu maintains that a proper consideration of the indictment shows that the relationship established in all 356 calls falls to be considered as general assistance (including information) given by D1 to D2 over the whole period and the Court should not limit itself to the 34 calls relied upon by Mr Lee SC nor to the specific gain from those 34 calls. It is Ms Fu’s submission that the D2 has attempted to construe the charge against him far too narrowly. Analysis Mr Lee SC has asked the Court to consider the expert report of CKS and I have done so, albeit I have considered the whole of the report to place those sections which Mr Lee SC seeks to rely upon in context. CKS opined that although there were 4 HA family accounts involved in this offending, an analysis of the trading in both DBWs and NDBWs clearly indicates that the same skilled pattern of trading is adopted across all accounts. Analysis of the timing of trades over all accounts indicates that it is more likely that one very skilled trader was undertaking the majority of the trading. This opinion is confirmed by reason of D2’s plea. A comparison of that pattern of trading between DBWs and NDBWs offers further insight. Pair trading was the dominant strategy employed and rapid fire pair trading was the driving force of the gross profit. Between 89%-97% of all trading was in DBWs over all 4 accounts. Only between 0-1.6% of trading was in NDBWs. The predominance in both dollar value and in the number of securities traded was therefore in DBWs. Trades in DBWs made more profit than in NDBWs and also lost less than when trading in NDBWs. D2 was markedly less successful trading in NDBWs and stocks than in DBWs. At p455 CKS opined, “To any seasoned investors, HAF Accounts’ persistent and long lasting achievement is akin to mission impossible”. Something must therefore account for the difference. Rapid fire pair trading, was not as dominant a strategy in NDBWs. This may be because one motivation of D1, when trading in DBWs with D2, was to increase market turnover to allow D1 to sell more units to other investors. This may be evidenced by the 84% of rapid fire pair trades which were reversed at the same price (or a difference of a single spread) in DBWs, yet by comparison only 15% of NDBWs were traded in such a way. With NDBWs, the spread was more likely to be larger at the time of reversal than in DBWs and therefore less risk averse. Interestingly, CKS noted that, whilst overall approximately one third of all trading involved “same price reversal”, 25% of both DBWs and NDBWs had a reversal time of within one minute indicating a similar trading strategy employed in both groups. However, that one third “same price reversal” applied across all groups in respect of DBWs but in NDBWs, the incidence of “same price reversal” was higher the shorter the time period of reversal i.e. 2 minutes and decreased the longer the period. In response to this CKS said: “ [75] In my opinion, Reversal Time for an active trader is a reflection of the volatility in the market over the relevant period. As market volatility increases, investors become more sensitive and nervous in their trading, entering and exiting the market in higher frequency. In the course of hectic trading, a trader is less concerned as to whether he is exiting at the original price because his bigger concern will be the risk that the market might go against his position. On the other hand, if an investor has already sat on a position for a long time, he would be less likely to close out his position at the same price as he must have resisted many temptations to close out his position for profit or loss. Closing out at the same price means incurring transaction cost for no apparent economic benefits. It seems fairly reasonable and understandable that as the reversal time is lengthened, one would expect the dominance of same price reversal to decrease. This is what we observe in HAF Account’s trading in NDB Warrants. [76] Interestingly, the stable dominance of same price reversal seen in DB warrants seemed inconsistent with the logic explained above….” CKS considered the effect of this operating strategy upon the business of Deutsche Bank (“DB”). He opined that DB could not fail to be aware of the huge profits made by D2; that it would have been uneconomical and insensible for DB to hedge such activity and that this pattern of trading was not sustainable and could only work if D2 had confidence in DB maintaining a tight spread, not varying quotes and not withdrawing from providing big sized orders. This is where the overall nature of the relationship between D1 and D2 is of significance. Referring specifically to CKS’s analysis of the contents of the 356 telephone calls, CKS divided them by content. Mr Lee SC submits that only categories (d) & (h) are applicable as being causative of gain for the purpose of calculating D2’s proceeds of crime. The whole of the content of the 356 telephone calls indicates a close and familiar relationship between the parties, at times without the need for any specifics. CKS-22 is an analysis of trading relating to all of those underlying conversations. Mr Lee SC submits that only 34 of those calls resulted in a later trade. He wishes the Court to calculate the defendant’s benefit from those trades only. CKS opines inter alia that in 182 out of 211 incidents in which a specific warrant was mentioned, DBWs were traded that day. When that DBW was not traded the same day, there was trading in it by CSL through accounts not apparently related to D2 personally but for which CSL would presumably earn commission. That commission has not been relied upon by the Secretary for Justice as part of the benefit to D2 but it is part of the whole of the circumstances of the case. In this respect, I note that CKS opined that such activity also suggested that CSL (operated by D2) might be trading in DBWs separately, or alongside D2’s trading DBWs in the HA family accounts. If that were the case, it follows that such trading would also be reliant upon the underlying relationship between D1 and D2, there being a nexus between the conversations and trading generally in CSL, which was operated by D2. To make sense of why and how D2 acted as he did (something Mr Lee SC asks me to do), the Court is required to take into account how and why D1 acted as he did. Of the 8 categories of conversation, (a) to (h), identified by CKS, when considering all of the evidence before the Court, it is clear that category a), b) and c) formed part of the quid pro quo of the relationship between D1 and D2 from which both parties ultimately personally gained financially and from which D1 might also have gained for the benefit of DB. One obvious motivation was the increase in turnover and market liquidity for which D1 needed D2 to trade in certain DBWs in order to encourage other investors to do so, hence the predominance of same price reversals. In return, D2 gained compliance from D1 in other respects in the same way that D2 agreed to trade in Hang Seng Index Futures for D1 despite their respective personal positions as a trader and undischarged bankrupt respectively. The close nature of their relationship is also evidenced under categories e), f) and g) when D1 is heard to complain to D2 about the “big” positions held by D2 and the number of bid and ask orders placed without proper reference to the underlying market and in return when D2 is heard to complain to D1 about lack of quotes or DBW stability when the market has changed as if D1 and D2 had the ability to alter the actions of the other. Whilst categories a), b), c), e), f) and g) form part of the general behaviour of D1 and D2, categories d) and h) are direct examples of the improper way this relationship developed. In these conversations D2 is seen to complain about the pricing of DBWs and seeks advance notice of whether they are manually or electronically calculated. Mr Lee SC has indicated where they led directly to a benefit by D2. He says in 34 cases. Those same calls, falling to be considered under d) and h), are also direct evidence of the complexity and inter dependency of the relationship between D1 and D2, from which Ms Fu asks the Court to infer that this was ongoing criminal behaviour in which D2 acted in order to obtain information and assistance from which he may have obtained a profit. It led to a growing confidence in risk taking by D2 when trading in DBWs generally in the knowledge that D1 would not act against him and, on the other hand, growing concern by D1 when faced with the large positions held by D2 to the detriment of DB, yet D1 takes no remedial action. As CKS said at p467[117]: “ [117] After all MA was not a sales person for DB. As a trader having a high level of autonomy and discretion in pricing and quoting DB Warrants, MA’s pricing decisions had a direct impact on DB’s bottom line. For those DB Warrants promoted by MA, DB always stand as counterparty to investors. The dominant trading relationship between DB and HAF Accounts thus posed an obvious and significant risk to DB when HAs had unrestricted and frequent access to MA. [118] Most investment banks have specific prohibitions against traders with trading discretion to be in direct contact with the bank’s clients. Even if needed, clients’ communication to traders has to be relayed via sales representatives. Category (f) [119] In reality, if the only relation between HAs and MA were that of an investor/client and a liquidity provider on behalf of DB(an issuer), I could not think of any reason why MA would be entitled to criticize HAs as being not active or not proactive in trading DB Warrants when the underlying moved. Category (g) [120] Similarly, HAs’ right to complain against MA’s lack of quotes in DB Warrants as identified in Category (g) and MA’s speedy response is something well above the level of service that an ordinary investor in Hong Kong could expect. It seems MA has always attended to HAs’ quote request in size and in tight spread. There were many occasions that MA seemed to have acceded to supply quotes at prices dictated by HAs…” Lastly: “ [127] In a general sense, much of the information divulged by MA to HAs could give HAs an advantage when HAs trade with DB. The relative expensiveness of the DB Warrants was one kind of favour which could help HAs to better time his buying and selling”. Conclusion Count 2 spanned a course of activity between 16 January 2007 to 7 May 2008, during which time D2 was responsible for the payments of monies to accounts held by D1. This was a continuous course of criminal conduct in order to both obtain information from D1 and to secure assistance from D1. The payments made to D1 over that period of time were made either seeking to pre-emptively secure that information and assistance on an ongoing basis or as a reward for having actually received information and assistance. This is made clear by the words “as inducements to or rewards for or otherwise on account of” and “doing or having done acts”. Mr Lee SC’s submission that the Court should restrict itself only to payments made for information and assistance actually given is, with great respect, to misunderstand the scope of the charge against D2 and his plea to it. The fact that CKS identified and opined upon subsequent events linked to particular assistance and information given to D2 references some “having done” acts. The remainder of his report (and that of Mr Clive Rigby dated 10.11.17), identifies the nature of the overall relationship between D1 and D2. Hence Ms Fu’s reliance on the phrase “general assistance”, which may or may not result in a trade or in profit but has the potential to do so and which Ms Fu maintains did do so over and above the limited gains suggested by D2. This was a two-way street. D1 was providing assistance potentially against the interests of his employer but also to improve market liquidity and because D2 was trading in Hang Seng Index Futures on his behalf. D2 was making substantial payments on a regular basis in round figures representing the profit from the trading he was carrying out for D1 in Hang Seng Index Futures but also to encourage a flow of information which placed him in a position to safely trade in a manner he could not trade elsewhere and hence to provide an opportunity to make more profit and lose less than he would elsewhere as evidenced by his NDBW trading in which he was far less successful. It went to both his mind-set in trading as well as to his actions and as to his attitude to risk as can be seen by the comparison between his trading in DBWs and NDBWs. As a consequence, it is entirely proper for the Court to consider all of the telephone calls during the whole of the period which falls within the indictment in order to assess the defendant’s benefit and to compare the benefit of this relationship within this period with the benefit to D2 and his associates out-with that relationship. As Mr Gidwani stated in his 2nd S10 Statement, paragraph 11, dated 22 October 2018: “ These early morning calls were deliberately timed to afford early access to information not yet publicly available or not subject to speedy analysis in the quick fire way that D2 wished to trade. In so doing, he (D2) was ahead of the game and took advantage of the market before others could do so and D2 made considerable profits which were not mirrored in his trading elsewhere when information and assistance (from D1) had not been provided.” S2(6)(i) of OSCO defines proceeds of offence to include “any payments or rewards received by him at any time….in connection with the commission of that offence”. D1 and D2 accepted that D1 was paid for his general assistance to D2 in his trading of DBWs either in contemplation that his information and assistance would prove useful or as a reward for having proved useful. Following the principles enunciated in R v Andrewes [2022] UKSC 24 in respect of quantification, it is wholly proper for this Court to order confiscation of the whole of the realisable property of D2, which has been agreed between the parties to be HK$ 63,000,000, being a figure less than his proceeds of crime, which this Court finds to be HKD 125,664,254.30. D2 shall pay the sum of HK$ 63,000,000 on or before 11 November 2023, failing which he is to serve a term of imprisonment of 10 years in default, such sentence to be served consecutively to 45 months imposed by this Court dated 26 February 2018. (A P Campbell-Moffat) Judge of the Court of First Instance High Court Ms Betty Fu, ADPP(Ag), and Mr Matthew Hui, PP, of the Department of Justice, for the applicant Mr Robert Lee SC leading Mr Brian Chau, instructed by Messrs KB Chau & Co., for the respondent