HKSAR v. Chen Keen (Alias Jack Chen)

Press Summary (English)

Press Summary (Chinese)

FACC Nos 26, 27 & 28 of 2018

[2019] HKCFA 32

FACC No 26 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 26 OF 2018 (CRIMINAL)

(ON APPEAL FROM CACC NO 172 OF 2016)

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FACC No 27 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 27 OF 2018 (CRIMINAL)

(ON APPEAL FROM CACC NO 172 OF 2016)

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FACC No 28 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 28 OF 2018 (CRIMINAL)

(ON APPEAL FROM CACC NO 172 OF 2016)

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JUDGMENT

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Chief Justice Ma:

1.I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Cheung PJ.

Mr Justice Ribeiro PJ and Mr Justice Cheung PJ:

2.The 1^st appellant, Chen Keen (alias Jack Chen), the 2^nd appellant, Hao May (alias May Wang) and the 3^rd appellant, Yee Wenjye (alias Eric Yee), “A1”, “A2” and “A3” respectively, were convicted on 29 April 2016 on two counts of conspiracy to defraud contrary to common law[1] after trial before Anthea Pang J and a jury.[2]  The first count alleged a conspiracy to defraud the Stock Exchange of Hong Kong Limited (“SEHK”) and the second, a conspiracy to defraud China Jin Hui Mining Corporation Limited,[3] a company listed on the SEHK (referred to by its stock code number “462”) and its existing shareholders.  The appellants were alleged to have conspired by using dishonest means to cause the SEHK and 462 to permit the acquisition by 462 of farms in New Zealand, held by companies owned by A2, to proceed.  A1 was also convicted on a count of money laundering[4] in respect of his dealing with the alleged proceeds of such conspiracies to defraud.

3.Their appeals to the Court of Appeal[5] were unsuccessful and they were granted leave to appeal to this Court by the Appeal Committee[6] on two questions of law and in respect of two issues raised on the “substantial and grave injustice” (“SGI”) basis, to which we shall return.

A.     The factual background

A.1   Planning to acquire farms in New Zealand

4.A2 controlled three companies which are relevant for present purposes.  She was the owner and sole director of UBNZ Trustee Limited (“UTCL”[7]) which had, as its wholly-owned direct subsidiaries, UBNZ Funds Management Limited (“UBFM”) and UBNZ Assets Holdings Limited (“UBAH”). 

5.In early 2008, A2 asked one Barry Fraser (“Fraser”) to help her look for New Zealand farms to purchase.  Fraser identified certain cattle and dairy cattle farms (“the Properties”) owned by companies known as the “CraFarms Group” and A2 authorised him to enter into negotiations to acquire them.  A1 then signed a commission sharing agreement (“CSA”) dated 8 October 2008 with A2 and Fraser (the latter signing on behalf of Latitude Asia Limited, a company of which his two sons were directors).  The CSA provided as follows:

“All parties agree that all commission received through dairy farm purchases with CraFarms Group (Incorporating Plateau Farms Ltd, Hillside Ltd, Taharua Ltd, Nugen Farms Ltd, Ferry View Farms Ltd, Windburn View Ltd) will be shared equally between the said three parties. All commissions negotiated and paid by vendors and investors (if any) will be shared equally between the said three parties. Commissions will be payable by the vendor and investors (if any) upon settlement of dairy farm purchasers. Commissions will be held by a nominated company trust account. The said parties will only be able to claim commission upon submitting an invoice to the nominated company. The Confidentiality Agreement between CraFarms Group and UBS (sic) Funds Management NZ Limited forms part of this agreement.”

A.2   Arranging for 462 to acquire the farms

6.Some months later, in about April 2009, A1 approached Katherine Chan Wai-kay (referred to below as “Kathy Chan” or “PW1”[8]) who was a director and chairman of 462 which was, at that time, a moribund company with trading in its shares suspended.  A1 told PW1 that he knew of farms in New Zealand “which were a very wealthy woman’s farms” (naming her as May Wang).[9]  PW1 expressed an interest in having the farms injected into 462 and a few days later, A1 introduced PW1 to A2 when the supply of dairy products from New Zealand to the Mainland was discussed as a project with potential.  A1 was then appointed a director and co-chairman of 462 to facilitate negotiations with A2.

7.On 18 May 2009, A2, through UBFM, entered into a series of agreements to purchase 22 farms owned by the six companies forming part of the CraFarms Group[10] for a total consideration of NZ$259 million.[11]

8.In the following week, on 22 May 2009, 462’s board, chaired by PW1 and A1, approved purchase by 462 of those farms with the minutes recording that the board was told that the ultimate beneficial owners of UTCL and UBFM were “third parties independent of the company and its connected persons.”[12]

9.Later that day, 462 entered into an Agreement dated 22 May 2009 with UTCL and UBFM for the purchase from UTCL of the shares of its subsidiary UBAH (“the Acquisition”), the vendors undertaking that UBAH would become the owner of the Properties (which its fellow subsidiary UBFM had contracted to purchase from CraFarms) before completion under the Agreement.

10.The purchase would initially be of 20% of the shares in UBAH for the HK Dollar equivalent of NZ$100 million with 462 having the option of acquiring the remaining 80% of UBAH for NZ$400 million.  The consideration was to be provided by the issue of convertible notes, that is, debt instruments convertible into shares in 462, to UTCL.  It was agreed that 462 would perform due diligence inquiries.  Conditions precedent to the Acquisition included permission from the SEHK to list and deal in converted shares; approval by 462’s shareholders; and all necessary approvals from the relevant New Zealand authorities (in particular the Overseas Investment Office (“OIO”) of New Zealand) for the transfer of ownership of the farms.

A.3   Due diligence and the Announcement

11.As the Acquisition qualified as a Very Substantial Acquisition (“VSA”) under the SEHK’s Listing Rules, trading in the shares of 462 was suspended between 25 May 2009 and 5 June 2009, pending the making of a public announcement.[13] On 3 June 2009, a firm of accountants, ShineWing HK (CPA) Ltd (“ShineWing”) was engaged by 462 to conduct a due diligence check on UBAH and the farms. At about the same time, A2 engaged A3 as a consultant to compile accounts for the Acquisition and to provide the financial information to ShineWing.

12.The public announcement was published on 4 June 2009 (“the Announcement”).  It stated that 462 had agreed conditionally to purchase from UTCL the UBAH shares (describing the principal terms of the agreement) and contained the following declaration:

“To the best of the information, knowledge and belief of the Directors having made all reasonable enquiries, UTCL and UBFM and their respective ultimate beneficial owners are third parties independent of the Company and its connected persons.”

13.In New Zealand, Stretton’s were the CraFarms Group’s accountants, Mark King (“King”) being the accountant in charge.  In the course of the due diligence exercise, in June 2009 King provided unaudited management accounts for the years ended 31 May 2006, 2007 and 2008 to A3 and A2 who forwarded the same to ShineWing and PW1. 

14.In e-mails examined in detail by the Court of Appeal,[14] A3 engaged in re-casting the figures in various ways under pressure from A2.  By 24 June 2009, the overall deficit of NZ$5,420,975 shown in King’s figures had been altered to present an overall surplus of NZ$14,875,785.[15]  After further manipulation, by 7 July 2009 the purported net profit figure for the 10 month period ended 31 March 2009 had been further revised upwards to NZ$17,789,715.[16]  When the circular discussed below was published on 8 September 2009 (“the Circular”), it put the unaudited profit of UBAH for the year ended 31 May 2009 at NZ$20 million, equivalent to HK$95.95 million.

15.The prosecution case was that the manipulation by A3 (in conjunction with A2 and with the acquiescence of A1) of the historical figures provided by King represented the dishonest falsification of those figures.  The defence argued that the adjusted figures did not represent and were known by ShineWing not to represent historical figures but reflected honest projections by A3 of achievable improvements brought about by achieving efficiencies and a “change of management focus”. 

A.4   Seeking SEHK’s approvals

16.During July and August, 462 was engaged in seeking the SEHK’s permission to issue the Circular required to be published for the Acquisition, being a VSA.  This was referred to as a “pre-vetting” process and involved the SEHK raising a series of queries.  In a letter dated 10 August 2009, the SEHK stated that it had received a complaint alleging that A2 was the sole shareholder and director of the vendor UTCL and that:

“In respect of the Acquisition, Ms Wang is partnering with Mr Jack Keen Chen ... the executive director of the Company. They work together in New Zealand under the same office at Level 10, 175 Queen Street, Auckland, New Zealand, and the office is a property owned by Ms Wang ...”

17.The letter asked whether the allegations were accurate and went on as follows:

“if Ms Wang is the beneficial owner of the Vendor, your confirmation whether there is any existing or prior relationship between Mr Chen and Ms Wang, or whether there is any prior arrangement(s) or understanding between Mr Chen and Ms Wang with respect to the Acquisition such that the Acquisition shall become a connected transaction under Chapter 14A ...”

“We note that the circular on the Acquisition will be despatched by the Company in due course. Please ensure that all information relevant for shareholders to make an informed assessment on the Acquisition has been duly disclosed in such circular, including the information mentioned in the complaint above, where appropriate.”

18.A1 responded by saying that he had met A2 on non-business related events and that he had then been appointed as director of 462 to “assist and negotiate the acquisition”.  He asserted that: “There were [sic] no existing or prior relationship between myself and Ms Wang with respect to the Acquisition”.  A2 acknowledged that she was the sole shareholder of UTCL and likewise declared: “There was no existing or prior relationship between Mr Chen & me with respect to the Acquisition.” 

A.5   The Circular and the Acquisition

19.On 8 September 2009, 462 published the Circular which stated that:

“To the best of the information, knowledge and belief of the Directors having made all reasonable enquiries, each of the Target Company, the Vendor, the Warrantor, the ultimate beneficial owner of the Target Company, the Vendor and the Warrantor, the registered owners and the ultimate beneficial owners of the Properties and Fixed Assets are Independent Third Parties to the Company and its connected persons and in particular there is no existing or prior relationship or understanding between Mr Jack Keen Chen and Ms May Wang with respect to the Acquisition such that the Acquisition shall become a connected transaction under Chapter 14A of the Listing Rules.”

20.As noted above, the Circular put the unaudited profit of UBAH for the year ended 31 May 2009 at NZ$20 million, equivalent to HK$95.95 million.  The unaudited combined profit and loss statements attributable to the farms for the year ended 31 May 2009 annexed to the Circular also stated that the farms’ gross profits were HK$92,520,000 (“representing an improvement of 68.1% when compared to 31 May 2008”).  The Circular further said that the statements had “been prepared based on the financial and other information provided by the management of the vendor”.

21.On 2 October 2009, at an Extraordinary General Meeting, 462 approved the Acquisition.[17]

22.On 4 December 2009, the SEHK granted listing approval for 462 to issue convertible notes to UTCL. 462 then appointed Sun Hung Kai Investment Services Ltd (“SHKI”) as placing agent to market the additional convertible notes.[18]

A.6   The Convertible Notes, their proceeds and the incomplete Acquisition

23.Consequently, on 21 December 2009, 462 issued to UBTL NZ$50M worth of notes convertible into 110,431,200 shares in 462 as the Acquisition deposit and NZ$100M worth of notes convertible into 276,077,999 such shares for the acquisition of 20% of UBAH’s shares.[19]  On the same day, the SEHK granted 462 listing approval to issue the additional convertible notes and an Optional Bond.[20]

24.Between 16 July and 1 September 2010, sales of some of the convertible notes took place and the 462 board approved conversions of various batches of convertible notes into shares.  Because of the SEHK’s concerns in the light of various complaints made against A1 and A2, 462 froze and stopped transfer for any CN-A and CN-B shares released to UTCL.[21]  A2 was declared bankrupt in New Zealand on 8 December 2010[22] and A1 and A2 were arrested on 16 December 2010.[23]

25.On 12 January 2011, OIO refused to approve transfer of the farms to UBAH and UBFM cancelled the sale and purchase agreements with the New Zealand farm companies.[24]

B.     The issues on these appeals

26.Multiple issues were canvassed at the trial where Anthea Pang J’s summing-up took over three days and covered 274 pages of transcript.   The Court of Appeal likewise had to deal with numerous grounds of appeal and the judgment of the Court spans 260 pages.  However, on the present appeals, the debate has been narrowed to focus on two main issues, namely, (i) whether there were certain misdirections regarding the relationship among the three appellants so as to invalidate their conviction (“the misdirection issue”); and (ii) whether, in the light of the Judge’s directions, the indictments for conspiracy to defraud were bad for duplicity (“the duplicity issue”).  As it is common ground that A1’s conviction on the money laundering count stands or falls with his conviction for conspiracy to defraud, no independent issues in respect of that count require discussion in this judgment.

27.The two main issues are reflected in the Appeal Committee’s order granting leave to appeal in respect of two questions of law and two issues considered reasonably arguable on the SGI basis, as follows:

In the context of charges of conspiracy to defraud the Stock Exchange  and shareholders of a listed company, where false representations are said to have been made as to connections between the directors of the listed company and the vendor in a very substantial acquisition governed by the Listing Rules, for the  purpose of the direction on falsity, is the Judge required to determine and direct the Jury, as a matter of law, on the meaning of a “connected transaction” and  “connected persons” under the Listing Rules?  (“Question 1”)

Whether it is permissible in law to charge a single count of conspiracy to defraud, which identifies different agreed dishonest means and/or different objectives where the alleged co-conspirators have not all agreed to the use of the same dishonest means and/or the pursuit of these same objectives. (“Question 2”)

Whether it was a misdirection for the Judge to instruct the jury that it was sufficient to convict on the basis of a finding that A1 and A2 had been “working together” in the specified context without examining whether A2 was a “connected person” so as to render the acquisition a “connected transaction” for the purposes of the Listing Rules. (“SGI-1”)

Whether it was a misdirection for the Judge to instruct the jury that concealment or non-disclosure of the Commission Sharing Agreement of October 2008 could constitute a conspiracy to defraud.  (“SGI-2”)

28.The misdirection issue is raised by Question 1 and SGI-1 and SGI-2 which substantially overlap.  The duplicity issue arises from Question 2.  It is convenient to deal first with Question 2 and the duplicity issue.

C.     Question 2 and the duplicity issue

29.The duplicity argument of Ms Clare Montgomery QC[25] on behalf of A1, adopted by Mr Ian Winter QC[26] for A2 and by Mr Tim Owen QC[27] for A3, focusses on the five particulars in each Count of the Indictment set out below, contending that her Ladyship’s direction on those particulars caused a latent duplicity to emerge, invalidating the jury’s verdict.

C.1   The Indictment

30.The Indictment materially provides as follows:

“ First Count (against all accused)

STATEMENT OF OFFENCE

Conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap 200

PARTICULARS OF OFFENCE

CHEN Keen (alias Jack CHEN), HAO May … (alias May WANG) and Yee Wenjye … (alias Eric YEE), between the 7^th day of May 2009 and the 8^th day of September 2009, both dates inclusive, in Hong Kong, conspired together to defraud the [SEHK] by dishonestly:

(a)  falsely representing that [UTCL], [UBFM] and their respective ultimate beneficial owners were independent third parties to [462] and its connected persons;

(b)   falsely representing that there was no existing or prior relationship or understanding between [A1 and A2] with respect to the acquisition of the entire issued share capital of [UBAH] by [462] from [UTCL] (“the Acquisition”);

(c)   concealing or failing to declare that [A1] had an interest in the Acquisition, in that [A1 and A2] were parties to an agreement signed between them and Latitude Asia Limited dated the 8^th day of October 2008 to share the commission arising from or received through the sale and purchase of the dairy farms owned by the CraFarms Group in New Zealand;

(d)   falsely representing that the gross profit of the properties and fixed assets relating to dairy farms owned by the CraFarms Group in New Zealand (“the Properties”) for the year ended the 31^st day of May 2009 was approximately $92,520,000 Hong Kong currency;

(e)  concealing or failing to disclose the true financial position of the Properties.”

31.Particular (f) in Count 1 goes on to state:

“(f) causing SEHK to allow the publication by [462] of the announcement dated the 4^th day of June 2009 and the circular dated the 8^th day of September 2009 in relation to the Acquisition which contained the false representations as aforesaid.”

32.The Statement of Offence and the parties to the conspiracy specified in Count 2 are the same as in Count 1.  However, they are alleged, between 7 May 2009 and 19 July 2010, to have “conspired together to defraud [462] and its existing shareholders” by dishonestly making the same false representations and effecting the same concealments and non-disclosures as those set out in Particulars (a) to (e) in Count 1.

33.Count 2 has Particulars (f) and (g) which allege as follows:

“(f) causing [462] and its existing shareholders to approve the agreement for the Acquisition;

(g)  causing [462] to issue and release convertible notes and an optional bond for the payment of the Acquisition.”

C.2   The duplicity argument

34.The duplicity argument is that “each of Counts 1 and 2 improperly averred more than one conspiracy”[28] thus undermining the jury’s verdicts.  Ms Montgomery QC submitted (i) that two quite different conspiracies were alleged by Particulars (a) to (c) and Particulars (d) and (e) respectively; (ii) that given the Judge’s direction that Particulars (a) to (c) were not relevant to A3 and that they could not find a conspiracy proved against him “based on any one or more of those particulars”[29]; and (iii) that given also the Judge’s direction that “at least two of the Accused ... intended that such a false representation be made or that there be such a concealment”[30]; it could not be excluded that the guilty verdicts returned were constituted by the jurors having been satisfied that the conspiracy constituted by Particulars (a) to (c) had been proved as against A1 and A2; while finding that the different conspiracy constituted by Particulars (d) and (e) was established as against A3 and either A2 or A1.  Thus, it was argued, each of the conspiracy counts accommodated “two conspiracies with different objects and different parties charged under the same count”[31] and led to the possibility that the conviction of all three of the appellants on each count had been arrived at without the jury unanimously or by an acceptable majority having found either offence established against them.

35.It may be noted that the duplicity argument separates the particulars into two groups:  Particulars (a) to (c) regarding false representations and concealment concerning the relationship between each of the appellants; and Particulars (d) and (e) regarding false representations and concealment concerning the financial position of the Properties to be acquired.  It is crucial to the appellants’ argument that each of the two sets of particulars – Particulars (a) to (c) and Particulars (d) and (e) respectively – represents the agreed dishonest means under the conspiratorial agreement to which all the alleged conspirators must be proved to have been parties, reflecting their agreed common intention.

36.The correctness or otherwise of the duplicity argument therefore depends on a proper understanding of the applicable legal principles and on what the essential constituent elements of the conspiratorial agreements indicted consist of and what was the Judge’s direction thereon.

C.3   The applicable legal principles

C.3a Offence constituted on reaching agreement

37.The offence of conspiracy to defraud (like other conspiracies) is focussed upon and crystallised by the co-conspirators’ making of the unlawful agreement.  As Thomas LJ explained in R v K:

“The rationale for the retention of the offence of conspiracy to defraud is that the criminality aimed at is the agreement, not the carrying out of the agreement; if a sufficiently certain agreement is made to defraud, that is the criminal conduct encompassed within the offence and no more need be proved; provided there is that certainty in the agreement, it matters not how the participants individually intended to go about or actually went about defrauding the intended victims of their money.”[32]

38.Such an agreement is proved by showing that the co-conspirators agreed to act in concert to achieve a common object or purpose.[33]  As Brennan J put it in Gerakiteys v The Queen:[34]

“The identity of a conspiracy is to be found in what the conspirators commonly agree to or accept: a conspiracy is proved by evidence of the actual terms of the agreement made or accepted or by evidence from which an agreement to effect common objects or purposes is inferred.”

39.As Jordan CJ pointed out, “The prosecution is not called upon to define the exact moment at which the conspiracy began or the exact act which marked its inception.”[35] Nor is it necessary to prove that the conspirators all reached agreement at the same moment or have been in direct communication with one another.  Thus an accused may join a pre-existing conspiracy, making it a “chain conspiracy”; or a number of conspirators may reach agreement with the same person at the hub of a “wheel conspiracy”.  All would be part of the same conspiracy provided each agrees to give effect to a common object or purpose.[36]

C.3b The essential ingredients of conspiracy to defraud

40.The agreement which is essential to a conspiracy to defraud is an agreement to use dishonest means to defraud someone.  As Sir Anthony Mason NPJ (with whom the other members of the Court agreed) held in Mo Yuk Ping v HKSAR,[37] a conspiracy to defraud:

“... is constituted by becoming a party to an agreement with another or others to use dishonest means: (a) with the purpose of causing economic loss to, or putting at risk the economic interests of, another; or (b) with the realization that the use of those means may cause such loss or put such interests at risk. The offence extends also to cases in which the dishonest means cause a person to act contrary to his public duty ...”

41.Turning to the mental element, his Lordship endorsed the statement of Lord Goff of Chieveley in Wai Yu-Tsang v The Queen,[38] to the following effect:

“The question whether particular facts reveal a conspiracy to defraud depends upon what the conspirators have dishonestly agreed to do, and in particular whether they have agreed to practise a fraud on somebody. For this purpose it is enough for example that, as in Reg v Allsop [(1976) 64 Cr App R 29] and in the present case, the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk.”

42.In HKSAR v Chan Wai Yip,[39] applying Mo Yuk Ping, Sir Anthony Mason NPJ stated:

“In Mo Yuk Ping v HKSAR, this Court held that the essence of the offence of conspiracy to defraud was becoming a party to an agreement with another or others to use dishonest means (i) with the purpose of causing economic loss to, or putting at risk the economic interests of another; or (ii) with the realisation that the use of those means might cause such loss or put such interests at risk. In stating the elements of conspiracy to defraud in this way, this Court adopted earlier formulations of the offence in both the House of Lords (Welham v DPP [1961] AC 103; R v Scott [1975] AC 819) and the Privy Council on appeal from Hong Kong (Wai Yu Tsang v R [1992] 1 AC 269).”

43.It is therefore authoritatively established that the essence of a conspiracy to defraud is an agreement to use dishonest means by which the co-conspirators intend to bring about a state of affairs intending or in the realisation that someone will be defrauded either by having their economic interests injured or imperilled or by being deflected from performing their public duty.

C.3c Object or purpose

44.In laying down the essential ingredients of conspiracy to defraud, Sir Anthony Mason NPJ emphasised the importance of distinguishing between the agreed object or purpose of the conspiracy and the dishonest means intended to be used.  He endorsed Viscount Dilhorne’s statement that:

“One must not confuse the object of a conspiracy with the means by which it is intended to be carried out.”[40]

45.This is important because (subject to Section 3e below) it is the object of the conspiracy which forms the essential ingredient of the offence upon which the co-conspirators must find consensus. 

46.As Brennan J noted in Gerakiteys v The Queen, it is “the object or purpose of each conspiracy which gives the conspiracy its identity”.[41] And as Deane J said in the same case:

“The gist of the crime of conspiracy lies in the making of the relevant agreement. It is the subject-matter and purpose of the agreement which determines whether it is criminally unlawful.”[42]

47.An important reason why an agreement to use unspecified dishonest means to defraud the victim is sufficient to constitute the offence is that co-conspirators, while agreeing on a common fraudulent purpose, may not yet have identified precisely what steps will be taken, and by which of them, to bring about the intended state of affairs.   As Jordan CJ pointed out in R v Ongley,[43] the conspirators may not have identified their intended victims when they began their project, adding:

“The fact that the evidence suggests that the accused probably met together from time to time to discuss, arrange and put in action methods for achieving their common purpose would be in no way inconsistent with their being guilty only of a single conspiracy, which had been arranged in general terms, and with their later agreements being merely directed to providing machinery for putting that conspiracy into operation.”

48.And as Thomas LJ explained in R v K,[44]  

“... if the conspirators agreed to make dishonest representations about the company to induce investors to buy shares, that was sufficient to constitute a certain agreement; it was not necessary that the conspirators agreed more specifically on the misrepresentations that were to be made; the precise nature of the representations to be made or made do not, in contrast to the statutory offence considered in Brown [(1984) 79 Cr App R 115], constitute ingredients of the offence of conspiracy to defraud.”

C.3d Overt acts and particulars

49.It is accordingly essential not to confuse the facts and matters provided by way of particulars with the essential constituent elements of the conspiracy alleged.  Particulars set out in the indictment or separately given by the prosecution function to inform the accused of the case they have to meet.[45] Particulars are frequently given of overt acts allegedly performed by the accused which the prosecution relies upon to invite the jury to infer the existence of the prior conspiratorial agreement and in particular, that it involved an agreement to use dishonest means.  Subject to what is said below, such particulars should not be confused with the co-conspirators’ common purpose which forms the essence of the alleged conspiracy to defraud. 

50.Thus, as to the relevance of overt acts, the Court in R v Ongley commented as follows:

“If it is established that the accused did things which indicate that they were acting in concert to achieve a common purpose, this supplies all the evidence that is required to establish that they had agreed to achieve that purpose. Indeed, in a prosecution for conspiracy it is unusual for any other evidence of agreement to be tendered than is supplied by evidence of the respective overt acts.”[46]

51.In R v Hancock,[47] Stuart-Smith LJ explained the role of particulars and how they differ from the essential ingredients of the offence:

“Since the case of Landy (1981) 72 Cr App R 237; [1981] 1 WLR 355, in a case where conspiracy to defraud is alleged, the Crown are required to set out sufficient particulars of the offence to enable the defence and the judge to know precisely, and on the face of the indictment itself, the nature of the prosecution case and to stop the prosecution shifting their ground during the course of the case. But simply because particulars of an offence are given does not mean that those particulars are an essential ingredient of the offence. In a case such as this the particulars do no more than specify the nature of the case the prosecution seek to prove and the principal overt acts upon which they rely to invite the jury to infer that there was a dishonest agreement and that a particular defendant was a party to it.”

C.3e When dishonest means become a constituent ingredient of the conspiracy

52.It does not follow from the above, however, that the dishonest means agreed or used by the conspirators can never become a constituent ingredient of the conspiracy and need never be proven as such.

53.As mentioned, a conspiracy is capable of evolving.  Specific dishonest means may be agreed upon by the conspirators after the original conspiratorial agreement was first made.  New co-conspirators may join in the conspiracy.  The same set of facts may, as a matter of law, give rise to more than one conspiracy, or several sub-conspiracies under an overarching conspiracy.  Whilst the essence of a conspiracy is the making of the prohibited agreement such that, strictly speaking, the offence is committed when the agreement is made, the law regards a conspiracy as a continuing offence beginning when the conspiratorial agreement was first made and continuing until it ended.[48] Very often (and the present case is one such example), a conspiracy is charged as a continuing offence over a specified period, instead of an offence on a specified (or an unknown) day.  During the continuation of the conspiratorial agreement, new or additional specific dishonest means may be agreed upon by the conspirators, new co-conspirators may join in the conspiracy, and so forth.  From a prosecution point of view, in a complicated case, the permutations and combinations can be many.  It is important for the prosecution to ascertain the facts carefully and decide what conspiracy/conspiracies they wish to charge, and to plead and make clear their case accordingly.  For at trial, the prosecution will be required to prove by evidence the conspiratorial agreement(s) they have chosen to indict.

54.In a prosecution case where it is alleged that some specific dishonest means have been agreed upon as part of the conspiratorial agreement indicted, the indictment and the particulars must clearly inform the court and the defendants what the agreed dishonest means are said to be.  The agreed dishonest means so pleaded constitute an essential constituent element of the conspiratorial agreement alleged and must be proved as part of the agreed object of the conspiracy by the prosecution beyond reasonable doubt.

C.3f   How confusion may arise

55.It is here that the situation becomes complicated by a matter that has already been mentioned, namely the general requirement on the prosecution to reasonably inform the court and the defendants in the indictment and the particulars what the prosecution case is.  As explained, the purpose of the requirement is to enable the defendants and the court to know precisely the nature of the prosecution case, and to stop the prosecution shifting their ground during the course of the trial without the leave of the trial judge and the making of an amendment.[49]  In other words, even in a prosecution case where it is not alleged that there has been any agreed dishonest means as part of the conspiratorial agreement charged, this requirement would still mean that in many if not all cases, the prosecution have to set out the dishonest means that have actually been used to implement the agreement, which the prosecution will rely on as proof, not of a constituent element of the agreement alleged, but of the existence of the agreement itself.  These particulars of dishonest means are the overt acts relied on to infer the existence of the conspiratorial agreement.  However, unlike the case discussed in the preceding paragraph, a failure to prove any one or more of these overt acts beyond reasonable doubt may or may not be fatal to the prosecution case.  Everything still depends on the totality of the evidence adduced at trial.

56.It is not difficult to see that these two superficially similar, but fundamentally different, situations may give rise to confusion, particularly when the indictment is not sufficiently carefully drafted and clarification is not provided in the prosecution’s opening speech.  This important distinction and the potential confusion are borne out by the warning given in Archbold 2019, paragraph 33-49, regarding the drafting of an indictment:

“Care should be taken to differentiate between particulars which define the agreement which the Crown seek to prove, as in Bennett, and those which set out overt acts from which the Crown invite the jury to infer the existence of an agreement. Some counsel have begun to limit the particulars of offence to the terms of the agreement to be proved, followed by voluntary particulars which set out the principal overt acts relied upon. This practice, it is submitted, has the advantage of clarify and precision and was approved by the Court of Appeal in R. v K., above.”

(emphasis added)

57.Commenting on an identical passage appearing in Archbold 2005, Professor Ormerod explained (in his commentary to the report of R v K in the Criminal Law Review – see below):[50]

“Whether the particulars are elevated to the status of ingredients depends on the charge involved. Thus, in cases such as Brown where the allegation was of fraudulently inducing investors, particulars setting out the false representations form part of that ingredient. The same would be true of a deception offence. With conspiracy, the essential ingredient of the offence is the agreement. If the particulars provide detail of the manner in which the agreement was implemented they do not form part of the ingredients of the offence. There may of course be cases where the particulars relate not to the implementation, but to the form of the agreement itself, in which case they become part of the ingredients of the offence alleged and must be proved by the prosecution (see, e.g. Bennett). This method of indicting conspiracy to defraud, distinguishing between the essential ingredient of the agreement and the other particulars of implementation from which jurors are invited to infer dishonesty, etc., is commended by Archbold (2005) 34-42. The court’s per curiam observations endorse the approach.”

(emphasis added)

58.In R v Bennett,[51] the indictment alleged an agreement with three specific stages of involvement by the conspirators:

“… to defraud computer companies by:

(i) dishonestly obtaining the account details of credit card holders;

(ii) falsely purporting to be in possession of those details; and

(iii) dishonestly using such details to obtain goods and services.”

59.That being the conspiratorial agreement alleged in the indictment such that the dishonest means (ie (i) to (iii)) actually formed part of the conspiratorial agreement itself, the English Court of Appeal held it was incumbent upon the prosecution to prove that the conspirators agreed to the dishonest means as part of their burden to prove the existence of the alleged conspiratorial agreement.

60.Likewise, in HKSAR v Cheng Chee Tock Theodore (No 2),[52] the particulars of the charge alleged that the conspirators:

“ … conspired together … to defraud the Board of Directors and shareholders of CYF by dishonestly:

(i) falsely concealing from CYF that [Cheng, one of the conspirators] had a beneficiary [sic] or financial interest in a property … ; and

(ii) falsely representing to CYF that the acquisition of the said property by CYF did not constitute a connected transaction for the purpose of [the Listing Rules],

thereby inducing CYF to complete the purchase of said property without convening the required company meeting(s) or complying with the Listing Rules.”[53]

61.This Court, reading the matters alleged in (i) and (ii) as the agreed dishonest means under the conspiratorial agreement alleged, held that:

“[t]he prosecution was therefore alleging and was required to prove beyond reasonable doubt that:

(a) Cheng and his co-conspirators conspired to effect a connected transaction constituted by CYF's acquisition of the 17/F Property;

(b) They knew that it was a connected transaction but conspired falsely to represent to CYF that it was not;

(c) Cheng had a beneficial or financial interest in the 17/F Property but conspired with his co-conspirators falsely to conceal that fact; and

(d) that by such concealment and false representation, Cheng and his co-conspirators induced CYF to complete the acquisition without the necessary company resolutions and without complying with the relevant Listing Rules.”[54]

62.In other words, the Court required the prosecution to prove the agreed dishonest means (i) and (ii) as part of their proof of the alleged conspiratorial agreement.  As they failed to prove that the transaction was a “connected transaction” within the meaning of the Listing Rules (ie dishonest means (ii)), the prosecution failed to prove the conspiratorial agreement charged and the appellant’s conviction was quashed.

63.By way of contrast, in R v K, the English Court of Appeal, distinguishing Bennett, was able to say, by looking at the indictment in that case, that the conspiratorial agreement indicted there did not include as one of its constituent elements the dishonest means that were actually employed to carry out the conspiratorial agreement to achieve the prohibited object agreed.  The dishonest means particularised in the indictment were only the overt acts based on which the prosecution sought to prove the existence of the conspiracy charged.  They were supplied to give reasonable information to the defendants on what the prosecution case was and how the prosecution intended to prove the existence of the conspiratorial agreement.

64.Explaining the crucial distinction under discussion, Thomas LJ (as he then was) observed:

“… we agree with the editors of Archbold that much greater care needs to be taken in framing the indictment and especially in the definition of the agreement alleged. There must be a clear distinction between the agreement alleged and the reasonable information given in respect of it. ... In our view therefore, the indictment should identify the agreement alleged with the specificity necessary in the circumstances of each case; if the agreement alleged is complex, then details of that may be needed and those details will as in Bennett form part of what must be proved. If this course is followed, it should then be clear what the prosecution must prove and the matters on which the jury must be unanimous: see Bennett.”[55]

(emphasis added)

This is to be contrasted with the situation where the particulars are simply provided to give reasonable information in respect of the agreement alleged.  As Thomas LJ went on to explain:

“Further particulars should be given where it is necessary for the defendants to have further general information as to the nature of the charge and for the other purposes identified by Lawton L.J. in Landy. Such further particulars form no part of the ingredients of the offence and on these the jury do not have to be unanimous, as this court correctly decided in Hancock.”[56]

(emphasis added)

C.3g When a count in an indictment is duplicitous

65.The importance of the rule against duplicity is not in doubt.  In particular, where there is a concealed duplicity of charges the accused may be convicted despite lack among jurors of the necessary unanimity, or of the permitted degree of sufficient unanimity.  In a conspiracy case some jurors may convict on conspiracy A not B, and others on B not A. 

66.Normally, such duplicity only arises in cases where two separate conspiratorial objects or purposes are charged in a single count.  The rule was elucidated by Jordan CJ in R v Ongley,[57] as follows (with footnotes omitted):

“A count in conspiracy must comply with the general rule of charging one offence only … Where a count in conspiracy charges, as it should do, only one conspiracy to effect some one or more improper purposes, the only issue before the jury under that count is whether all or any of the accused are guilty of the conspiracy alleged. The jury may find that all or any two or more of the accused are guilty of a conspiracy to effect all the improper purposes alleged … , or to effect some only of the improper purposes alleged … but they cannot find some of the accused guilty of a conspiracy to effect only some of the improper purposes and other of the accused guilty only of a conspiracy to effect only other of the improper purposes; because to do so would be to find the existence of two conspiracies under a count which charges one only; and this, the law does not allow …”

67.The focus was thus on a single count alleging two separate conspiracies by reference to two separate improper purposes.

68.   In R v K,[58] the duplicity argument failed because it had wrongly concentrated on the particulars rather than the essential ingredients, in particular, the object or purpose, of the conspiracy:

“Bearing in mind the clear distinction which must be drawn between the ingredients of the offence and the particulars, we are satisfied that the agreement alleged in this indictment was that spelt out by the judge in his summing up. It was an agreement for a single specified purpose—to defraud potential shareholders to part with their money by making representations about the company that a certain state of affairs existed whereas in truth it did not. Particulars (a)–(l) were given only to provide reasonable information as to the nature of the charge and as to the principal matters upon which the prosecution would invite the jury to infer that there was an agreement to defraud and that each of the defendants was party to it; the particulars did not purport to define the agreement.”

C.3h Complications when a conspiracy with agreed specific dishonest means is charged

69.However, in a case where the prosecution chooses to include some specific dishonest means in the indictment not as overt acts, but as agreed dishonest means forming part of the conspiratorial agreement indicted, those agreed dishonest means, together with the object or purpose of the conspiracy, would give the conspiracy its identity.  If in a single count of conspiracy, more than one agreed dishonest means are alleged and they are alleged in the alternative, and if there are more than two conspirators alleged to have been involved, a duplicity problem will potentially arise, unless appropriate directions are given by the trial judge.

D.   Is there duplicity in the present case?

D1. The indictment

70.In the present case, it is therefore important to determine whether the dishonest means pleaded in Particulars (a) to (e) were meant and understood to be simply overt acts proving or evidencing the existence of the conspiratorial agreements alleged under Count 1 and Count 2, or whether they were said to be the dishonest means, forming part of the respective conspiratorial agreements, agreed upon by the conspirators concerned.

71.Turning first to the indictment, the particulars of Count 1 say: 

“[A1, A2 and A3], between the 7^th day of May 2009 and the 8^th day of September 2009, … conspired together to defraud [SEHK] by dishonestly:

(a) falsely representing … ;

(b) falsely representing … ;

(c) concealing or failing to declare … ;

(d) falsely representing … ;

(e) concealing or failing to disclose;

(f)  causing SEHK to allow the publication … of the announcement ... and the circular … which contained the false representations as aforesaid.”

72.Significantly, the particulars do not say, for instance, that the conspirators conspired to defraud the SEHK by dishonest means, as evidenced by Particulars (a)-(e).  Rather, the use of the words “conspired together to defraud the [SEHK] by dishonestly: [(a)-(e)]”[59] suggests strongly that the dishonest means particularised, that is, (a) to (e), were the agreed dishonest means forming part of the conspiratorial agreements indicted.

73.The particulars of Count 2 follow a similar format and employ similar wording. 

74.In fact, the pleading formula used in the particulars in the present case, that is, the defendants “conspired together to defraud [the victim] by dishonestly [(a), (b), (c) etc] …”, is similar to that used in Bennett and Cheng Chee Tock Theodore (No 2).  The particulars strongly suggest that in the present case, Particulars (a) to (e) were the agreed dishonest means forming part of the conspiratorial agreement indicted under each count.

D.2  The written directions

75.This reading is strongly supported by the Judge’s written directions, agreed to by all counsel, given to the jury, as part of her summing-up.  Unfortunately, the importance of the written directions to the issue under discussion has apparently not been fully appreciated by the Court of Appeal.  The written directions read:

“1. Before you can convict any of the 1^st, 2^nd or 3^rd Accused of the offence of conspiracy to defraud in counts 1 and 2, you must be sure, separately in respect of each count and each Accused that:

(i) …

(ii) …

(iii) the agreement was to defraud, that is, they had agreed to use dishonest means to bring about a state of affairs which they intended to, or realized might, cause the party or one of the parties named in the count, into acting, or failing to act,

(a) for count 1

so that the named party (the SEHK), would perform an act contrary to its public duty; and

(b) for count 2

so that the named party/parties (CJHM (462), and/or its existing shareholders) would suffer economic loss, or so that its or their economic interests would be put at risk.

The Dishonest Means Alleged

2. In this case, the prosecution allege that the 1^st and the 2^nd Accused had agreed to use the dishonest means, that is, the false representations (statements) and the concealment particularized in paragraphs (a) to (c) in each count of the conspiracy to bring about the state of affairs or the result in paragraph (f) for count 1; and the results in paragraphs (f) and (g) for count 2.

3. In addition, the prosecution allege that the 1^st, 2^nd and 3^rd Accused had agreed to use the dishonest means, that is, the false representation and the concealment particularized in paragraphs (d) and (e) in each count of the conspiracy to bring about the state of affairs or the result in paragraph (f) for count 1; and the results in paragraphs (f) and (g) for count 2.

…”

(emphasis added)

76.It can be clearly seen from those paragraphs that as the Judge understood it, which understanding was shared by both the prosecution and the defence, the prosecution’s allegation was that “the 1^st and the 2^nd Accused had agreed to use the dishonest means, that is, [(a) to (c)]”[60] to achieve (f) for Count 1; and (f) and (g) for Count 2.  Likewise, it was the prosecution case that “the 1^st, 2^nd and 3^rd Accused had agreed to use the dishonest means, that is, [(d) and (e)]”[61] to achieve (f) for Count 1; and (f) and (g) for Count 2.

77.We are unable to read the written directions as directions treating Particulars (a) to (e) as merely overt acts proving or evidencing the existence of the conspiratorial agreements to defraud the SEHK and 462 and its shareholders respectively.  The caption preceding paragraphs 2 to 6 of the written directions, namely, “The Dishonest Means Alleged”, and the wording of paragraphs 2 and 3, are simply too clear to admit of a different reading such that Particulars (a) to (e) may merely be treated as overt acts. 

D.3  The Kevin Brown direction

78.The giving of a Kevin Brown direction[62] by the Judge in paragraphs 4 to 6 of the written directions as well as in her oral summing-up[63] reinforces this reading of her directions.  Paragraphs 4 to 6 read:

“4. It is not necessary for the prosecution to prove that all these representations/concealments were made before you may convict. It is sufficient for the prosecution to prove so that you are sure one or more of these representations/concealments was/were made and that the representation or representations was/were false.

5. However, there should be at least one of such representations/concealments upon which you are agreed to have been a false representation or to have been a concealment, and one which you are sure that at least two of the Accused knew of its existence, its falsity and intended that such a false representation be made or that there be such a concealment pursuant to the conspiracy to which they were parties before you may convict.

6.  Further, although one conspiracy is charged against all the three Accused, particulars (a) to (c) only concern the 1^st and the 2^nd Accused whereas particulars (d) and (e) concern all the three Accused.  Therefore, if you were to find that the conspiracy is proved based on any of the particulars (a) to (c) and not on any one of the particulars (d) and (e), you must acquit the 3^rd Accused.  You may convict the 3^rd Accused only if you were to find that either particular (d) or particular (e) is proved and that all the other elements of the conspiracy are also proved.”

79.A Kevin Brown direction is only required in relation to an ingredient of the offence in question where the indictment or charge specifies a number of matters as such ingredients, any of which would be sufficient.  A Kevin Brown direction is meant to tell the jury that they need not be satisfied with all the matters specified and relied on to prove the offence in question and that any one of them will do, but that in doing so, the jury as a whole must be agreed on at least one and the same ingredient.[64]  The giving of a Kevin Brown direction by the Judge in the present case clearly indicates that her Ladyship, with the agreement of all counsel who were shown the directions in draft beforehand, regarded Particulars (a) to (e) not as mere overt acts but as matters specified and relied on by the prosecution to prove an essential ingredient of the offence and so part of the conspiratorial agreement, and that it would be sufficient for any of those matters to be proved.  In other words, the Judge and counsel all took the view that Particulars (a), (b), (c), (d) and/or (e) formed part of the conspiratorial agreement alleged by the prosecution under each count.

80.Had the Judge and counsel regarded Particulars (a) to (e) as simply overt acts, the giving of a Kevin Brown direction would have been totally uncalled for and indeed wrong. 

81.With respect, we do not agree with the Court of Appeal that the Judge’s giving of a Kevin Brown direction can simply be discounted as something unnecessary.[65] Since the Judge and counsel all regarded the particulars as forming part of the conspiratorial agreement, and since it was the prosecution case that they were alternative particulars such that proof of any one of them would prove the conspiratorial agreement alleged, in order to do justice to the prosecution case, it was necessary to give a Kevin Brown direction so that the jury would not erroneously believe that they had to find all the particulars proven before they could convict.

82.For this reason also, we are unable to agree with the Court of Appeal’s observation that the Judge was being “favourable” to the appellants, particularly towards A3, in her summing-up, when she directed that if the jury were sure about Particulars (a) to (c) but not (d) to (e), they must acquit A3.    Rather, the Judge’s direction followed logically from what she (and counsel) regarded as the true case of the prosecution, that is, that the dishonest means particularised under (a) to (e), whether together or in the alternative to each other, formed part of the conspiratorial agreement alleged against the three appellants under each count.  The Judge was not being generous to the appellants but was simply doing justice to the prosecution case as presented at trial.

D.4   The prosecution’s speeches and the Judge’s summing-up

83.Nowhere did either the prosecution or the Judge refer to Particulars (a) to (e) as mere overt acts providing evidence on which the jury might infer the existence of the alleged conspiratorial agreement.  Had the Judge so regarded (a) to (e), she would (and should) have instructed the jury to weigh all other evidence together with any of the overt acts that they were sure had been established before finding any of the appellants guilty of the relevant count.  Nor should the failure to establish any such particulars (if they were merely overt acts) necessarily be fatal to the prosecution case against any appellants, for after all, by definition, one would have been concerned with the drawing of inferences regarding the existence of the alleged conspiratorial agreement from primary facts, which was an exercise dependent on the evidence available.

84.Instead, paragraphs 4 to 6 of the written directions direct the jury that they may convict A1 and A2 if they find against them on any of (a) to (c), and they may convict any two or more of the three appellants if either (d) or (e) is found proven against the two (or three), provided “that all other elements of the conspiracy are also proved.”  This categorical approach to conviction (and acquittal) in paragraphs 4 to 6 can only be explained by the Judge and counsel’s treating the particulars not as particulars of overt acts but as matters forming part of the alleged conspiratorial agreement under each count.

85.This categorical approach is also apparent from the way the Judge summed up the case for the jury.  For instance, she said, in relation to Particulars (d) and (e):

“Now, if you were sure that at least two of the accused were two parties to the conspiracy involving any one of these particulars, particular (d) or particular (e), and you were sure that all the elements of the offence of conspiracy, which I have explained to you, have been proved then you would have to convict the accused accordingly in relation to that particular and in relation to that conspiracy count which you are considering.”[66]

(emphasis added)

86.Contrary to what the Court of Appeal apparently thought,[67] it is not open to us simply to say that on a true analysis of the indictment, Particulars (a) to (e) do not form part of the conspiratorial agreement alleged in Count 1 or Count 2, so that one can ignore what the Judge, with the agreement of counsel, has said in her written directions or the Kevin Brown direction that she has given in her summing-up.  Her written directions and her summing-up made clear what the prosecution case as presented at the trial was, and as understood by the Judge and by defence counsel to be.  Indeed, the written directions were agreed to by all counsel including prosecution counsel.  If that was what prosecution counsel agreed to be their true case and that was indeed the case presented at trial it is not open to this Court, sitting on appeal, to say that on a true legal analysis, the prosecution case was (or more correctly, could or should have been) something else.  It is too late to turn back the clock. 

D.5  The duplicity arguments advanced

87.As mentioned, it is argued that the jury, acting pursuant to the written directions, may well have found A1 and A2 guilty of a conspiracy comprising, as part of the conspiratorial agreement, the agreed dishonest means particularised under (a), (b) and/or (c), and, found A3 together with A2 (or A1) guilty of a different conspiracy, comprising as part of that conspiratorial agreement, the agreed dishonest means particularised under (d) and/or (e).  So although all three appellants were found guilty, they may have been found guilty as parties to two separate conspiracies rolled up in a single count, and thus the latent duplicity objection.

88.A variation of the same theme advanced on behalf of A3 at the hearing is this: given the way the jury were directed under the written directions, one cannot exclude the possibility that for A3’s conviction for the conspiracy involving the dishonest means particularised under (d) and (e), some of the jurors may have found him guilty of having conspired with A1, whereas other jurors may have found him guilty of having conspired with A2.  There may thus not have been unanimity or an acceptable majority of jurors reaching a verdict of guilty on each count. 

D.6  Our view

89.If the conspiratorial agreement alleged at trial were simply one to defraud the SEHK (taking Count 1 as an example), without alleging any particular dishonest means as forming part of the conspiratorial agreement, so that Particulars (a) to (e) were simply overt acts based on which the prosecution sought to prove by inference the existence of the agreement, this argument of duplicity would have no substance.  For in such a case, the conspiratorial agreement would not comprise any of the overt acts as part of the agreement itself.  Convicting the three appellants by reference to different particulars, or different overt acts, would not, therefore, mean that they were convicted of different conspiracies.  No duplicity problem would have arisen.  However, for the reasons explained above, one has to proceed on the basis that Particulars (a) to (e) were alleged by the prosecution to be the dishonest means agreed to by the conspirators as essential ingredients of the conspiratorial agreement, that is, Particulars (a), (b) and/or (c) by A1 and A2, and (d) and/or (e) by all three appellants.

90.This gave rise to a latent duplicity problem as now relied on by the appellants in the appeal (even though counsel on either side, after seeing the written directions, failed to alert the Judge to the potential problem).  This problem cannot, however, be overcome by using the “purpose/object” versus “particulars/essential ingredients” distinction, for the simple reason that under this scenario, the dishonest means pleaded in particulars are not merely particulars of overt acts but actually form an essential part of the conspiratorial agreement alleged.  The possibility that the jury may have convicted A1 and A2 under (a), (b) and/or (c), and either A1 or A2 together with A3 under (d) and/or (e), therefore gives rise to the possibility that the three appellants were convicted where two conspiracies with different agreed dishonest means were alleged in a single count.

91.This is fatal to the convictions of all three appellants.  As Ms Montgomery QC accepted, without dissent from counsel for the other appellants, the consequence is that a retrial should be ordered.

92.It is unfortunate that the duplicity point was not raised at trial by counsel.  Any argument on duplicity should be raised at an early stage, precisely to avoid the outcome as shown by these appeals.

E.  The misdirection issue

93.This conclusion makes it unnecessary and undesirable to deal with the “misdirection issue” under Question 1 and SGI-1 and SGI-2.

F.  Outcome

94.For the above reasons, we would order that the convictions of all three appellants be quashed and that there be a re-trial with the prosecution being at liberty to amend the indictment or to prefer a fresh indictment.

Mr Justice Fok PJ:

95.I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Cheung PJ.

Mr Justice Gummow NPJ:

96.I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Cheung PJ.

Chief Justice Ma:

97.These appeals are unanimously allowed.  We order that the convictions of all three appellants be quashed and that there be a re-trial with the prosecution being at liberty to amend the indictment or to prefer a fresh indictment.  Any submissions as to costs should be lodged within 21 days of the date of the handing down of this judgment with any submissions in reply to be lodged within 14 days thereafter.

Ms Clare Montgomery QC, Mr Clive Grossman SC and Mr Benson Tsoi, instructed by Boase, Cohen & Collins, for D1/the appellant in FACC 26/2018 (the 1^st appellant)

Mr Ian Winter QC, Mr Graham Harris SC and Ms Emily Yu, instructed by Haldanes, for D2/the appellant in FACC 27/2018 (the 2^nd appellant)

Mr Tim Owen QC, Mr David Khosa and Ms Yasmine Zahir, instructed by Hobson & Ma, for D3/the appellant in FACC 28/2018 (the 3^rd appellant)

Ms Charlotte Draycott SC, on fiat and Ms Joycelyn Ng, SPP (Ag), of the Department of Justice, for the respondent