HKSAR v. Lu Yanbo
Read the full judgment text of DCCC 264/2020 on BabelCite. This District Court judgment.
1. There were two applications by the prosecution:
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[English Translation-英譯本] DCCC 264/2020 & DCCC454/2020 [2020] HKDC 614 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 264 OF 2020 ________________________
________________________ IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 454 OF 2020 ________________________
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________________________ REASONS FOR DECISION ________________________ 1.There were two applications by the prosecution:
2.Mr LU Yan-bo, defendant in DCCC 264 (“Defendant Lu”), was represented by Mr Bok Tin-yuen, barrister-at-law. Mr Bok opposed the prosecution’s application for amendments, and indicated that Defendant Lu intended to plead guilty to the original 3rd Charge. 3.Mr Bok further stated that his opposition to the prosecution’s application was only in relation to the proposed amended 3rd Charge and the proposed additional 4th Charge. He was not opposed to the additional 5th Charge as the evidence in support of that charge remained unchanged. 4.Mr Bok also requested me to rule on the application for amendments first, and then let him take instructions for the consolidation application. 5.Having heard the submissions of Mr Chan for the prosecution and those of Mr Bok, I allowed the prosecution’s application for amendments to split the original 3rd Charge in DCCC 264 into three charges, namely the amended 3rd Charge, the additional 4th Charge and the additional 5th Charge. When I gave my ruling, I stated that the reasons for my decision would later be handed down in writing. 6.I then adjourned the hearing for Mr Bok to take instructions from Defendant Lu. When the hearing resumed, Mr Bok informed me that Defendant Lu was not opposed to the consolidation application. As for Chen Jun, defendant in DCCC 454 (“Defendant Chen”), who was represented by Mr Chan W.K. Kenny, barrister-at-law, his attitude throughout has been one of not objecting to the prosecution’s application for consolidation. 7.Taking into account the stance of both defendants, I reckoned that it was appropriate to have the two cases consolidated. I therefore ordered that they be consolidated. 8.I will now give my reasons for allowing the application for amendments in DCCC 264. Application for Amendments to the Charge Sheet in DCCC 264 9.Before I made the aforesaid order, the original charge sheet contained a total of 3 charges. The prosecution applied to amend the original 3rd Charge and to include the additional 4th and 5th Charges in the Charge Sheet. 10.The statement of offence of the original 3rd Charge read, “Conspiracy to transfer forged identity cards, contrary to section 7AA(1)(b) of the Registration of Persons Ordinance, Cap. 177 and sections 159A and 159C of the Crimes Ordinance, Cap. 200” and the particulars of offence in respect of this charge were as follows:
11.From the particulars of offence of the original 3rd Charge, one can see that the alleged conspiracy involved transferring 3 forged identity cards to other persons. The 3 forged identity cards were in the name of (1) CHEUNG Yan-ying, (2) Lee Coi-wun and (3) KAR Huan-chiun respectively. The prosecution alleged that those who took part in the conspiracy included Defendant Lu, Jie Fu, Defendant Chen and other persons unknown, but the particulars of offence simply mentioned that the 3 forged identity cards were to be transferred to other persons, without saying precisely who the “other persons” were. 12.The prosecution’s application was to split the original 3rd Charge into three charges, by way of amending the original 3rd Charge, so that it would only focus on dealing with one of the forged identity cards, and putting in two additional charges to deal with the other two forged identity cards. Therefore, the 3rd Charge, when amended as proposed, would keep the statement of offence of the original 3rd Charge, namely conspiracy to transfer forged identity cards involving contravention of the same provisions of the law. The proposed additional 4th and 5th Charges also had the same statement of offence. Meanwhile, the particulars of offence of the 3rd to 5th Charges, sought to be either amended or included, were as follows:
13.One of the conspirators named CHEN Jun, whose name is mentioned in the respective particulars of offence of the original 3rd Charge, the proposed amended 3rd Charge and the proposed additional 4th Charge and 5th Charge, is Defendant Chen in DCCC 454. 14.So far as the amendments put forward by the prosecution are concerned, in the proposed amended 3rd Charge, apart from alleging conspiracy between Defendant Lu, Jie Fu, Defendant Chen and other unknown persons, the prosecution added “ZHANG Xiaomei” to the particulars of offence as one of the conspirators, with the cardholder’s name of the relevant forged Hong Kong identity card being “CHEUNG Yan-ying” and this forged identity card was to be transferred to “the said ZHANG Xiaomei”. 15.In the proposed additional 4th Charge, likewise, in addition to alleging conspiracy between Defendant Lu, Jie Fu, Defendant Chen and other persons unknown, the prosecution added “a person known as WANG Bangfen” to the particulars of offence as one of the conspirators, with the cardholder’s name of the relevant forged Hong Kong identity card being “LEE Coi-wun” and this forged identity card was to be transferred to “the said WANG Bangfen”. The prosecution called the conspirator to be added to the particulars of offence “a person known as WANG Bangfen”, obviously because that person was still at large and his/her genuine identity was not yet confirmed. The situation was different from that of “ZHANG Xiaomei” in the proposed amended 3rd Charge, as ZHANG Xiaomei had already been arrested inside Defendant Lu’s dwelling. 16.In the proposed additional 5th Charge, it was likewise alleged in the particulars of offence that Defendant Lu, Jie Fu, Defendant Chen and other persons unknown conspired to transfer to “another person” a forged Hong Kong identity card in the name of KAR Huan-chiun. However, the particulars of offence did not specify the real identity of the person who was to obtain the forged identity card. The prosecution’s case and evidence in DCCC 264 17.I have taken into account the summary of facts filed by the prosecution and the evidence that Mr Bok mentioned in his written submissions. The facts and evidence adduced by the prosecution can be summarized as follows. 18.On 9 December 2019, during a cargo inspection of a goods vehicle of “SF Express”, a Customs officer discovered a postal packet (“Postal Packet 1”), the addressee of which was “Ng Ka-hoi”. Inside Postal Packet 1 were two forged Hong Kong identity cards in the name of CHEUNG Yan-ying (“Forged ID Card 1”) and LEE Coi-wun (“Forged ID Card 2”) respectively. 19.On 10 December 2019, “SF Express” informed the Immigration Department that another postal packet which was also addressed to “Ng Ka-hoi” (“Postal Packet 2”) was found to contain another forged Hong Kong identity card in the name of KAR Huan-chiun (“Forged ID Card 3”). 20.On 11 December 2019, an officer of the Immigration Department disguised as a courier of “SF Express” delivered Postal Packet 1 to an address in Sham Shui Po for Defendant Lu. Defendant Lu received Postal Packet 1 at that address. 21.It was found upon investigations that Defendant Lu was a visitor who had overstayed for about 3 months (1st Charge). Officers of the Immigration Department who searched his dwelling found on his bed a bag which contained a forged Hong Kong identity card (“Forged ID Card 4”) bearing Defendant Lu’s photo but was in the name of NG Ka Hoi. Defendant Lu was in possession of Forged ID Card 4 (2nd Charge). 22.Officers of the Immigration Department arrested Defendant Lu at his dwelling where they also arrested Defendant Chen, Mr Chan Fai and ZHANG Xiaomei at the same time. Forged ID Card 1 which bore the photo of ZHANG Xiaomei was nevertheless in the name of CHEUNG Yan-ying. 23.Defendant Lu was later interviewed and under caution stated, inter alia, the following points:
Mr Bok’s Submissions 24.Mr Bok submitted that Defendant Lu had been interrogated twice. According to the record of interview dated 11 December 2019, when questioned about Postal Packet 1 which contained Forged ID Cards 1 and 2, Defendant Lu admitted that Postal Packet 1 was delivered by SF Express and it was the postal packet which Jie Fu instructed him to receive, and said “it contained the bogus identity cards that I was after”. Defendant Lu also said that he was not clear about and had never seen the two false identity cards in the postal packet, but he knew that they were false identity cards, and Jie Fu told him to “give him the postal packet once it was received”. Meanwhile, according to the record of interview dated 13 December 2019, the investigators alleged that Defendant Lu’s mobile phone record showed that Defendant Lu would make arrangements for some mainlanders to come and work in Hong Kong. Defendant Lu responded by saying that he just wanted to come and work in Hong Kong himself to earn some money. Defendant Lu also said “I am not acquainted with the people seeking employment” although he knew that Jie Fu was helping others to seek employment. Mr Bok stressed that Defendant Lu never admitted or mentioned in the two interviews that he was acquainted with the two mainlanders ZHANG Xiaomei and WANG Bangfen, nor had he ever mentioned that he was aware of or had been told about their existence. 25.Mr Bok also said that the additional two sets of certified WeChat messages adduced by the prosecution in May this year similarly were unable to prove directly or indirectly that Defendant Lu was aware of or had been told about the existence of ZHANG Xiaomei and WANG Bangfen. Moreover, the names of the two mainlanders, ZHANG Xiaomei and WANG Bangfen, were not shown in Defendant Lu’s mobile phone record either. 26.In light of the aforesaid state of the evidence, Mr Bok submitted that the prosecution had no or insufficient evidence to prove that Defendant Lu was acquainted with ZHANG Xiaomei and WANG Bangfen or was aware of their existence. Therefore, it was impossible for the prosecution to prove that the Defendant was involved in the unlawful agreements referred to in the proposed amended 3rd Charge and the proposed additional 4th Charge. Mr. Bok reckoned that in the absence of prima facie evidence, the Court should dismiss the prosecution’s application to amend the Charge Sheet. 27.Mr Bok cited sections 159A(1) and 159A(2) of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong as the legal basis in support of his submissions. Discussion 28.Under section 159A(1) of the Crimes Ordinance, the offence of conspiracy must consist of the making of an agreement between two or more persons to commit one or more offences and an intention to carry out their agreement at the time the agreement is made. Mr Bok thus pointed out that the prosecution was obliged to adduce prima facie evidence to prove that apart from making an agreement with Defendant Chen and Jie fu, Defendant Lu also reached an agreement with ZHANG Xiaomei and WANG Bangfen, the two mainlanders, to transfer forged identity cards to them. Mr Bok asserted that the prosecution was unable to adduce prima facie evidence in this regard to prove that there was an agreement between Defendant Lu and the two mainlanders or either one of them, because the prosecution simply had no or insufficient prima facie evidence to prove that Defendant Lu was acquainted with, or was aware of or had been told about the existence of ZHANG Xiaomei and/or WANG Bangfen. 29.I must point out that, pursuant to the legal principles applicable to the offence of conspiracy, to constitute conspiracy, although there must be an agreement of two or more persons to commit (a) certain offence(s), it is not necessary for the prosecution to prove that the conspirators had met to concoct the scheme, and a conspiracy may exist between persons who have neither seen nor corresponded with each other.[1] 30.The relevant legal principles also made it clear that if a conspiracy is already formed, and a person joins afterwards, he is equally guilty as the original conspirators. During the course of the conspiracy, some conspirators may drop out and others join in, but it may nevertheless remain a single conspiracy. However, under such circumstances, the prosecution has to establish (1) that all the conspirators were acting in pursuance of a common criminal purpose; (2) that each of the conspirators joined the conspiracy at some time, but not necessarily the same time; (3) that each conspirator knew that there were other parties to the conspiracy, though he did not need to know all of them; and (4) that each conspirator knew that there was in existence, or was to come into existence, a scheme which went beyond the illegal act which he agreed to do but still attached himself to the scheme.[2] 31.It can be seen from the above legal principles that even if the prosecution was unable to prove that Defendant Lu was acquainted with ZHANG Xiaomei and/or WANG Bangfen or had talked to or met the two of them or any one of them, it does not necessarily mean that the prosecution would not be able to prove that Defendant Lu had joined the same conspiracy to transfer forged identity cards which ZHANG Xiaomei and/or WANG Bangfen had joined, the reason being that the prosecution only needed to prove that Defendant Lu knew that there were other parties to the conspiracy which he joined, and that the other parties were or included ZHANG Xiaomei and/or WANG Bangfen. 32.Mr Chan said that as the prosecution’s evidence included the cautioned statements made by Defendant Lu during the two interviews, the prosecution was able to prove that Defendant Lu, Defendant Chen and a person known as Jie Fu had formed a gang where Jie Fu was to make forged Hong Kong identity cards and have them delivered via a courier company to Defendant Lu, who would then pass the forged identity cards to Defendant Chen, and Defendant Chen would in turn pass the forged identity cards to the mainlanders who intended to use the forged identity cards to seek employment in Hong Kong. Mr Chan emphasized that these forged identity cards all bore the cardholder’s headshot, and Defendant Lu must have known that the forged identity cards would eventually be passed to those people with matching appearance who were precisely those who asked to have the forged identity cards made. Mr Chan pointed out that the above-mentioned people all harboured the same objective of transferring those forged identity cards, and therefore they were all conspirators. Whether Defendant Lu was acquainted with or knew the name of ZHANG Xiaomei and/or WANG Bangfen is not an element of the offence. 33.I agreed with Mr Chan’s submissions as what he submitted were wholly consistent with the legal principles in relation to the aforesaid offence of conspiracy. Even if Defendant Lu was not acquainted with or not aware of the existence of ZHANG Xiaomei and/or WANG Bangfen, the evidence that the prosecution was able to adduce was sufficient to constitute prima facie evidence to prove the proposed amended 3rd Charge and the proposed additional 4th Charge. 34.From the prosecution’s summary of facts in DCCC 264, it was confirmed that Forged ID Card 1, Forged ID Card 2 and Forged ID Card 3 were seized. It is believed to be undisputed facts that they are forged Hong Kong identity cards. From that, an inference can be drawn that concerning the three forged identity cards, they must have been unlawfully made and each of them was obviously to be provided to the person whose photo was shown on the card for his/her use. A person whose appearance does not match the photo simply cannot use such a forged identity card as proof of identity. What is more, by way of the testimony of the SF Express staff member and that of the Immigration Department’s officer, the prosecution was able to put forward prima facie evidence to prove that someone had entrusted SF Express with the three forged identity cards to be put into two postal packets with NG Ka Hoi as addressee, delivered to Defendant Lu’s dwelling in Sham Shui Po and received by Defendant Lu, as NG Ka Hoi was Defendant Lu. He was in possession of the forged identity card bearing his headshot but in the name of NG Ka Hoi. It can be inferred from such evidence that Defendant Lu was not the one who made the three forged identity cards. Otherwise, no one would have delivered the forged identity cards to him by an express delivery company. Besides, it is obvious that Defendant Lu was not the user of any of the forged cards either as the three forged cards did not bear his photo. Having received the three forged cards, Defendant Lu would definitely pass them to the users of the forged cards either directly or indirectly. In other words, Defendant Lu must have known the existence of the users of the three forged cards and how the forged cards were to be passed to them. The prosecution was also able to submit prima facie evidence to prove that when the Immigration Department’s officer disguised as a staff member of the express delivery company delivered Postal Packet 1 to Defendant Lu’s dwelling and handed it to Defendant Lu, ZHANG Xiaomei, one of the users of the forged cards, was inside Defendant Lu’s dwelling together with Defendant Chen. ZHANG Xiaomei was definitely the user of Forged ID Card 1 as the forged card bore her headshot. As to whether it was Defendant Lu’s dwelling where ZHANG Xiaomei and Defendant Chen were present, Mr Bok argued that the prosecution’s evidence only showed that Defendant Lu was arrested at a Sham Shui Po address, but it was not his dwelling. However, the address on both Postal Packet 1 and Postal Packet 2 was that same address and the addressee of both postal packets was Defendant Lu. These amounted to prima facie evidence that Defendant Lu was living there. ZHANG Xiaomei was present at Defendant Lu’s dwelling when Forged ID Card 1 arrived there. The coincidence in terms of time is able to support the inference that ZHANG Xiaomei was there in Defendant Lu’s dwelling waiting to collect Forged ID Card 1. The fact that ZHANG Xiaomei and Defendant Lu were together in the same flat can also prove that Defendant Lu was acquainted with ZHANG Xiaomei or aware of her existence. Assuming that Defendant Lu was not acquainted with ZHANG Xiaomei before the postal packet was delivered to his dwelling, a reasonable inference to draw must be that Defendant Chen was the one who took ZHANG Xiaomei to Defendant Lu’s dwelling for ZHANG Xiaomei to collect Forged ID Card 1. 35.The prosecution’s summary of facts and Mr Bok’s submissions both mentioned the contents of Defendant Lu’s cautioned statements. It is my view that Defendant Lu’s cautioned statements not only verified the aforesaid inferences of fact, but they also amounted to a direct admission which showed that he was involved in a conspiracy. Defendant Lu admitted that for pecuniary advantage, he, Jie Fu and Defendant Chen conspired to make and supply forged identity cards to mainlanders who wanted to take up unlawful employment in Hong Kong. He also gave an account of everyone’s role, i.e., Jie Fu would make the forged cards and send them to him, and he would pass the forged cards to Defendant Chen who would then hand them to the mainlander users who needed the forged cards to seek employment in Hong Kong. Although Defendant Lu claimed in his cautioned statement that he was not clear about and had never seen the two forged identity cards in Postal Packet 1, and that he was not acquainted with the mainlanders looking for jobs in Hong Kong, and there was other evidence in the case which showed that Defendant Lu might not have an opportunity to look at the three forged identity cards in the two postal packets before his arrest, Defendant Lu’s cautioned statements served to prove that he knew very well that the postal packets delivered to him contained forged identity cards (He described them as “the bogus identity cards that I was after”), and that he would pass the forged identity cards to Defendant Chen who would in turn pass them to the users of the cards. Even though he had no idea about the names of the users, he must have known that the users’ appearance was the same as that shown in the photos of the forged cards. Therefore, although Defendant Lu did not admit in his record of interview that he knew ZHANG Xiaomei and WANG Bangfen or was aware of their existence, the Court did not have any obstacles in finding that Defendant Lu, Jie Fu and Defendant Chen had conspired with the users of Forged ID Card 1 and Forged ID Card 2 (i.e., the persons as shown in the photos of the two forged identity cards) to transfer the forged identity cards to them. Whether Defendant Lu was acquainted with the two users ZHANG Xiaomei and WANG Bangfen or whether he knew their name is irrelevant to his guilt or innocence, as Defendant Lu was aware of their existence and knew that they, in the capacity of users, took part in the conspiracy in which he himself was also involved to transfer the forged identity cards. 36.Aside from the aforesaid evidence, I noticed that when Defendant Lu was arrested, the Immigration Department’s officer(s) at the same time also arrested Defendant Chen and seized exhibits inside Defendant Lu’s dwelling. Putting aside the question of whether DCCC 264 and DCCC454 should be consolidated or not, I was sure, having referred to the prosecution’s summary of facts in DCCC 454, that the evidence which the prosecution intended to adduce in that case could also be used in DCCC 264 to prove that Defendant Lu did commit the proposed amended 3rd Charge and the proposed additional 4th Charge. 37.According to the prosecution’s summary of facts in DCCC 454, Defendant Chen’s mobile phone was one of the exhibits. 38.From Defendant Chen’s mobile phone, the prosecution found a total of 21 images for the photos of forged Hong Kong identity cards, including the photos of Forged ID Card 1, Forged ID Card 2 and Forged ID Card 3. Even if I was to ignore the admission made by Defendant Chen under caution, from his storage of forged ID card photos on his mobile phone alone, it could be inferred that had he not taken part in the unlawful activities involving these forged ID cards, he would not have been in any position to obtain these images for the photos of forged ID cards, and he would not have stored these images on his mobile phone. As to the role played by Defendant Chen in such unlawful activities involving forged identity cards, a reasonable inference would be that Defendant Chen was not the one who made the forged identity cards. If the forged cards were made by him, he would have been able to pass Forged ID Card 1, Forged ID Card 2 and Forged ID Card 3 to Defendant Lu directly, or he could have handed Forged ID Card 1 to its user directly as there was evidence that Defendant Chen and ZHANG Xiaomei were present at Defendant Lu’s dwelling at the same time. As a result, he would not have entrusted and it would not have been necessary for him to entrust an express delivery company with the task of delivering the forged cards to Defendant Lu. Besides, Defendant Chen would not be the one responsible for receiving the end-products of the forged identity cards as the addressee of the two postal packets containing forged identity cards was Defendant Lu. Judging from that, Defendant Chen must have been responsible for other work involved in the transfer of these forged identity cards, with Defendant Chen as representative of this gang providing forged identity cards to contact, liaise with, receive payment from and deliver forged identity cards to the customers in need of forged identity cards. The fact that Defendant Chen was present at Defendant Lu’s dwelling together with ZHANG Xiaomei, the user of Forged ID Card 1, when Postal Packet 1 arrived at Defendant Lu’s dwelling was entirely consistent with this inference. 39.The evidence in DCCC 454 of course also showed that Defendant Lu had taken part in the above conspiracy. Defendant Lu was responsible for receiving the end-products of the forged identity cards and delivering them to Defendant Chen who would then pass them to the users. 40.Apart from the images for the photos of the forged identity cards, WeChat communication records between Defendant Chen and ZHANG Xiaomei and those between Defendant Chen and WANG Bangfen were also stored on Defendant Chen’s mobile phone. According to the summary of facts submitted by the prosecution, messages between Defendant Chen and ZHANG Xiaomei showed that in order to earn agency fees, on 28th November 2019, Defendant Chen promised to seek employment for ZHANG Xiaomei and to take her to her workplace. He also requested ZHANG Xiaomei to send him an image of her photo and that of her PRC identity card for the purpose of making the bogus Hong Kong identity card. On top of that, he also asked ZHANG Xiaomei to pay $3,000 as deposit. ZHANG Xiaomei then sent an image of her PRC identity card and that of her photo to Defendant Chen who subsequently sent the image of Forged ID Card 1 to ZHANG Xiaomei. The photo on Forged ID Card 1 was the same as the photo which ZHANG Xiaomei had sent to Defendant Chen. Besides, the messages between Defendant Chen and a person known as WANG Bangfen showed that on 5 December 2019, WANG Bangfen asked Defendant Chen at what time the identity card could be handed over to her. Defendant Chen requested WANG Bangfen to send him (the image of) her identity card and (that of) her photo and to pay a deposit of $3,000. He also promised WANG Bangfen that he would arrange work for her. WANG Bangfen then sent the image of her PRC identity card to Defendant Chen who also received an image of WANG Bang-fen’s photo from ZHANG Xiaomei. Defendant Chen later sent the image of Forged ID Card 2 to WANG Bangfen. The photo on Forged ID Card 2 was the same as the photo which ZHANG Xiaomei had sent to Defendant Chen on behalf of WANG Bangfen. 41.The above-mentioned photos and communication records found from Defendant Chen’s mobile phone obviously constitute evidence to prove that Defendant Chen did take part in the conspiracy to transfer forged identity cards. They formed independent evidence that proved the existence of a conspiracy to transfer forged Hong Kong identity cards and they were the acts done (namely to send and store the photo images of the forged identity cards) and messages sent (namely the WeChat messages between Defendant Chen and ZHANG Xiaomei and those between Defendant Chen and WANG Bangfen) to carry out the objective of the conspiracy. In the premises, they constitute not only evidence to support the prosecution of Defendant Chen, but also evidence for the prosecution of Defendant Lu according to the legal principles laid down in the co-conspirator’s rule, even though the acts and communications were not carried out by Defendant Lu, not something that happened in front of him, and not acts done or testimony given by witnesses testifying in Court under oath. In light of the above, the evidence from the mobile phone of Defendant Chen could prove that the user of Forged ID Card 1 was ZHANG Xiaomei and the user of Forged ID Card 2 was WANG Bangfen, and as ZHANG Xiaomei was the one who sent WANG Bangfen’s photo to Defendant Chen, when ZHANG Xiaomei was there at Defendant Lu’s dwelling about to receive Forged ID Card 1, she might also be receiving Forged ID Card 2 for WANG Bangfen at the same time. Such evidence served to substantiate the proposed amended 3rd Charge and the proposed additional 4th Charge which Defendant Lu was faced with. That is, Defendant Lu was aware that the users of Forged ID Card 1 and Forged ID Card 2 did exist and that they took part in the conspiracy together with him. What is more, the above evidence shows the identities of the users to be ZHANG Xiaomei and WANG Bangfen, although Defendant Lu did not know their names. 42.With the above analysis, I was of the view that the evidence available from the prosecution not only constituted a prima facie case to prove that Defendant Lu did take part in the conspiracy referred to in the proposed amended 3rd Charge and the proposed additional 4th Charge, but might also be sufficient to secure a conviction against Defendant Lu. It does not matter whether Defendant Lu and the others formed the gang to supply forged Hong Kong identity cards first before the users conspired with them to transfer the forged identity cards, or the users were there first before the gang was formed, or Defendant Lu only joined the gang after it was formed, because Defendant Lu and any one of the above-mentioned conspirators could join the conspiracy at any time, and the aforesaid evidence can prove that when Defendant Lu took part in the conspiracy, there were Jie Fu, Defendant Chen and all forged card users participating in the conspiracy at the same time. They all had a common objective to transfer forged identity cards, and they intended to carry out their objective. 43.Mr Bok cited section 159A(2) of the Crimes Ordinance in his argument, saying that it was necessary to prove that Defendant Lu knew or was told about the existence of ZHANG Xiaomei and/or WANG Bangfen before Defendant Lu could be found guilty of conspiracy. Mr Bok’s view was that as the prosecution was unable to provide evidence to prove that Defendant Lu knew the existence of “ZHANG Xiaomei” and/or “a person known as WANG Bangfen”, while Defendant Lu’s knowledge in this regard formed the particular fact or circumstance necessary for the commission of the substantive offence, and therefore, according to the provisions of section 159A(2), Defendant Lu was not to be found guilty of conspiracy. 44.I reckon that section 159A(2) is not applicable to this case. The meaning of 159A(2) is that in the case of a certain offence which is regarded as a strict liability offence or an absolute liability offence, where a person committing the actus reus of the offence can be found guilty of the offence even though he/she had no knowledge of any particular fact or circumstance necessary for the commission of the offence at the time such actus reus was committed, the persons conspiring to commit such a strict or absolute liability offence must be shown to know at the time the unlawful agreement was made that the particular fact or circumstance necessary was in existence or was to come into existence. Otherwise, they shall not be found guilty of conspiracy. For instance, even though a person selling infringing copies of optical discs did not know that the optical discs sold were infringing copies, he may still be found guilty, unless he is able to prove that he did not have knowledge or reason to believe that the optical discs sold were infringing copies. However, as far as the offence of conspiracy to sell infringing copies of optical discs is concerned, unless the prosecution is able to prove that the offenders already knew at the time the agreement to sell the optical discs was made that the optical discs sold or to be sold under the agreement would be infringing copies, otherwise, pursuant to the provisions of section 159A(2), they shall not be found guilty of conspiracy: See HKSAR v Yung Lai Lai[3]. 45.Transferring forged identity cards is neither a strict liability offence nor an absolute liability offence. For this reason, the prosecution must prove the actus reus and mens rea necessary for the commission of the offence. For example, if the prosecution is unable to prove that the offender knew that the identity cards transferred were forged, it would then be impossible for him/her to be convicted of the offence of transferring forged identity cards, let alone the offence of conspiracy. However, in the instant case, I was of the view that the evidence available from the prosecution was able to prove that when Defendant Lu joined the alleged conspiracy, he knew that his co-conspirators included users of the forged identity cards, Jie Fu and Defendant Chen. Therefore, the prosecution actually has already put forward evidence to prove “any particular fact or circumstance necessary” for the commission of the substantive offence. 46.In light of the above, the court’s view was that the prosecution was able to adduce the minimum prima facie evidence to prove the proposed amended 3rd Charge and the proposed additional 4th Charge. I did not accept Mr Bok’s submissions. 47.It is true that I did engage in the analysis of and make my findings on the submissions of Mr Bok, but I must make it clear that there is simply no need for me to consider whether the prosecution was able to adduce prima facie evidence to prove the proposed amended 3rd Charge and the proposed additional 4th Charge. When there is an application to put in an amended charge or an additional charge, the court only needs to make sure that the drafting of the charge is compliant with the requirements of section 2 of the Indictment Rules, Cap 221C of the Laws of Hong Kong, and that the charge is able to give the defendant clear notice of the allegation made against him. The submissions from Mr Bok did not cover anything in this regard. 48.What is more, section 2(2) of the Indictment Rules provides that each count may only deal with one offence. As the original 3rd Charge deals with Forged ID Card 1, Forged ID Card 2 and Forged ID Card 3 at the same time, it may give rise to a situation where three offences are charged in one count. It is therefore absolutely reasonable and fair for the prosecution to split the original 3rd Charge into three separate charges, or the prosecution is even arguably obliged to make this application taking into account the relevant legal requirement. 49.Apart from that, I was sure that even if the prosecution’s application to amend the 3rd Charge and to add the 4th and 5th Charges were granted, Defendant Lu’s interests would not thereby be prejudiced. It was not raised by Mr Bok that in the event of the court granting the application, the allegation against Defendant Lu would become more serious or his defence for any of charges would be compromised or obstructed. Besides, Defendant Lu’s stance has always been that he would plead guilty to the original 3rd Charge. Therefore, when it was ascertained that the prosecution’s application was merely to split the original 3rd Charge into three charges, I could not see that Defendant Lu’s interests would be compromised in any way or it would do him any injustice. What is more, when Defendant Lu is sentenced, as there would be no changes to the gravity of the overall culpability on the part of Defendant Lu, there would not be any changes to the total sentence either, no matter if the three forged identity cards are dealt with all in one count or there are three counts each dealing with one forged identity card (a total of 3). 50.For the above reasons, the application for amendments to the Charge Sheet in DCCC 264 was allowed. Application for Consolidation 51.When the application for amendments to the Charge Sheet in DCCC 264 was granted, Mr Bok took instructions from Defendant Lu and informed me that Defendant Lu did not object to the consolidation application. As to Defendant Chen, he never raised any objection. 52.In addition to the fact that neither of the two defendants raised any objection, I noticed from the above analysis that some charges in DCCC 264 and DCCC 454 involve the same set of facts and the same evidence from the prosecution. The amended 3rd Charge in DCCC 264, when combined with the 3rd charge in DCCC 454, would become the 6th charge on the Consolidated Charge Sheet, while the additional 4th Charge in DCCC 264, when combined with the 4th charge in DCCC 454, would become the 7th charge on the Consolidated Charge Sheet. In the circumstances, consolidation of the two cases for trial obviously is consistent with the requirement under section 7 of the Indictment Rules. Accordingly, the application was allowed.
Mr Jeff K H Chan, Senior Public Prosecutor (Ag.), for HKSAR Mr Bok Tin-yuen, instructed by Yeung Charles Clement Lam Liu & Yip, assigned by the Director of Legal Aid, for the defendant in DCCC264/2020 Mr Kenny W K Chan, instructed by Samuel Ho & Co., assigned by the Director of Legal Aid, for the defendant in DCCC454/2020 Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Richard K. L. Man, Barrister-at-law. [1] “Conspiracy requires the agreement of two or more persons. It is not necessary to prove that the defendants met to concoct the scheme. A conspiracy may exist between persons who have neither seen nor corresponded with each other: R v Parnell (1881) 14 Cox 508; R v Meyrick and Ribuffi, 21 Cr App R 94, CCA; R v Hammersley, 42 Cr App R 207, 217 …”: para. 36-20, Archbold Hong Kong 2020. (Italics added) [2] “If a conspiracy is already formed, and a person joins afterwards, he is equally guilty with the original conspirators … Some conspirators may drop out and others join in during the course of the conspiracy but it may nevertheless remain a single conspiracy … See R v Sheik Abdul Rahman Bux [1989] 1 HKLR 1, CA, where it was held in a case of this kind of the prosecution had to establish (a) that the conspirators were acting in pursuance of a common criminal purpose; (b) that each of the conspirators joined the conspiracy at some time, but not necessarily the same time; (c) that each conspirator knew that there were other parties to the conspiracy, though he need not have known all of them, and (d) that each conspirator knew that there was in existence, or was to come into existence, a scheme which went beyond the illegal act which he agreed to do and had attached himself to that.” : para. 36-20, Archbold Hong Kong 2020. (Italics added) [3] CACC321/2011 |
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