Read the full judgment text of FACC 26, 27 & 28 of 2018 on BabelCite. This Court of Final Appeal judgment was delivered on 30 August 2019 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Mr Justice Gummow NPJ.
Criminal law – conspiracy to defraud – duplicity – indictment – particulars – overt acts versus agreed dishonest means – conspiratorial agreement – Very Substantial Acquisition – Listing Rules – Chapter 14A – connected persons – connected transaction – SEHK – listed company – false representations – financial manipulation – Commission Sharing Agreement – appeal – Court of Final Appeal – substantial and grave injustice – retrial – three appellants (A1 director and co-chairman of listed company 462; A2 owner of vendor companies UTCL/UBFM; A3 financial consultant) convicted after jury trial of two counts of conspiracy to defraud (one to defraud the SEHK, one to defraud 462 and its existing shareholders), with A1 additionally convicted of money laundering – facts: alleged conspiracy to cause SEHK and 462 to permit Very Substantial Acquisition of New Zealand dairy farms from CraFarms Group – false representations in announcement (4 June 2009) and circular (8 September 2009) that vendor and its ultimate beneficial owners were independent third parties of 462 and that no relationship or understanding existed between A1 and A2 regarding the Acquisition – concealment of October 2008 Commission Sharing Agreement between A1, A2 and Fraser's company under which commissions from any CraFarms purchase were to be shared – A3 engaged as consultant and manipulated historical financial figures to turn a deficit into a surplus and a purported net profit of NZ$20 million for year ended 31 May 2009 – legal issue: whether a single count of conspiracy to defraud which identifies different agreed dishonest means in particulars (a)-(c) (relationship, independence, and CSA concealment, concerning A1 and A2) and particulars (d)-(e) (false financial information about the Properties, concerning all three accused) is duplicitous – holding: yes; convictions quashed – reasoning: indictment wording ("conspired together to defraud… by dishonestly [(a)-(e)]"), written directions agreed by counsel and Kevin Brown direction all showed particulars (a)-(e) were treated as agreed dishonest means forming essential ingredient of the conspiratorial agreement, not mere overt acts – applying Bennett and HKSAR v Cheng Chee Tock Theodore (No 2), where specific dishonest means are pleaded as part of the agreement itself they must be proved as an essential element – latent duplicity arose because jury could have convicted A1 and A2 on (a)-(c) while convicting A3 with A1 or A2 on (d)-(e), giving rise to two different conspiracies under a single count with no assurance of unanimity – misdirection issue (Question 1 and SGI-1/SGI-2 on whether judge was required to determine meaning of connected transaction/connected persons and whether "working together" direction or non-disclosure of CSA direction was adequate) expressly not decided as duplicity was dispositive – outcome: appeals unanimously allowed, convictions on both conspiracy counts quashed for all three appellants, retrial ordered with prosecution at liberty to amend indictment or prefer fresh indictment, costs submissions to be lodged within 21 days
Legal issues: Duplicity of conspiracy to defraud indictment where particulars allege different agreed dishonest means
Outcome: Appeals unanimously allowed; convictions of all three appellants on both counts of conspiracy to defraud quashed; retrial ordered.
Cites 5 cases