Read the full judgment text of FACC 26, 27 & 28/2018 on BabelCite. This Court of Final Appeal judgment was delivered on 30 August 2019 before 馬道立, 李義, 霍兆剛, 張舉能, 甘慕賢.
Criminal law – conspiracy to defraud – duplicity – indictment charging single conspiracy but particulars pleaded as agreed dishonest means – whether particulars constitute essential elements of offence or merely overt acts – Kevin Brown direction – appellate review. The three appellants (A1 Jack Chen, A2 Hao May, and A3 Eric Yee) were convicted after trial by Mr Justice Pang in the Court of First Instance of two counts of common law conspiracy to defraud the Stock Exchange of Hong Kong (SEHK) and of conspiracy to defraud 462 (中國金匯礦業有限公司) and its shareholders, in connection with 462's very substantial acquisition of 22 New Zealand dairy farms from companies controlled by A2. The acquisition was funded by convertible notes and approved by 462's shareholders. A1 was additionally convicted of one count of money laundering. The Court of Appeal dismissed their appeals. On final appeal, the Court of Final Appeal allowed the appeals on the ground that the indictment was duplicitous. The indictment charged that the three appellants "一同串謀詐騙[被害人]，方式為透過不誠實地" setting out particulars (a) to (e). Particulars (a) to (c) concerned false statements and non-disclosure about the relationship between A1 and A2 (including the October 2008 commission-splitting agreement with Latitude Asia Limited) and involved only A1 and A2; particulars (d) and (e) concerned false statements and non-disclosure about the true financial position of the farms and involved all three appellants. The trial judge, with the agreement of all counsel, gave a written direction and a Kevin Brown direction treating particulars (a) to (e) as alternative essential elements constituting the agreed dishonest means of the alleged conspiracy, not merely as overt acts. Applying Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386, Wai Yu-Tsang v The Queen [1992] 1 AC 269, R v Bennett, HKSAR v Cheng Chee Tock Theodore (No 2) (2016) 19 HKCFAR 86 and R v K [2005] 1 Cr App R 25, the Court of Final Appeal held that where the prosecution pleads specific dishonest means as part of the conspiratorial agreement itself (distinguishing mere particulars of overt acts), those means constitute essential elements which the prosecution must prove beyond reasonable doubt. Because the jury could have convicted A1 and A2 on particulars (a)-(c) while convicting A3 with A1 or A2 on particulars (d)-(e), the three appellants may have been found guilty of two distinct conspiracies under a single count. The duplicity was fatal to the convictions of all three appellants. The Court did not reach the misdirection arguments (Question 1, SGI-1 and SGI-2) concerning the A1–A2 relationship, connected transactions under the Listing Rules, and the commission-splitting agreement. The Court noted that the duplicity point should have been raised at trial and that it was too late to do so on appeal. Outcome: appeals allowed; all convictions on both counts quashed; retrial ordered; prosecution at liberty to amend the indictment or prefer a fresh one; costs submissions to be filed within 21 days, responses within 14 days thereafter.
Legal issues: Whether the charges were duplicitous on the ground that particulars (a)-(c) and (d)-(e) constituted two distinct conspiracies within a single count · Whether the trial judge misdirected the jury on the relationship between A1 and A2 for the purpose of the Listing Rules
Outcome: Appeals allowed; convictions of all three appellants on both counts of conspiracy to defraud quashed; matter remitted for retrial, with the prosecution at liberty to amend the indictment or prefer a fresh one. A1's money laundering conviction (which depended on the conspiracy conviction) was not separately addressed.
Cited by 16 cases · Cites 4 cases