Chan Pun Chung and Another v. HKSAR

FAMC000003/2000

FAMC No. 3 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 364 OF 1999)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 19 May 2000

Date of Determination: 19 May 2000

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DETERMINATION

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Mr Justice Bokhary PJ:

1. These two applicants seek leave to appeal to the Court of Final Appeal against their conviction on a conspiracy charge. The conviction was by a Magistrate. It was affirmed by the Court of Appeal (to which the matter was referred under s.118(1)(d) of the Magistrates Ordinance, Cap. 227). Looking at the charge in question, it will be seen that the statement of offence reads "Conspiracy to obtain a pecuniary advantage by deception, contrary to Section 18(1) of the Theft Ordinance, Cap. 210, and Section 159A of the Crimes Ordinance, Cap. 200". And it will be seen that the charge period is stated to be between 1 December 1994 and 28 March 1995. At that time the offence of conspiracy was a purely common law offence.

2. On 2 August 1996 Part XIIA of the Crimes Ordinance, (which part consists of ss. 159A-159L) came into operation. As from that date, and by virtue of s.159E(1) and (2), the offence of conspiracy at common law was abolished save for one exception irrelevant to the present case. That exception is the common law offence of conspiracy to defraud, which is preserved.

3. The new statutory offence of conspiracy is defined by s.159A(1) which provides that:

" Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either ?

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question."

4. Certain transitional provisions accompanied these reforms of the law of conspiracy. Section 159E(7) provides that the abolition of the offence of conspiracy at common law shall not affect:

"(a) any proceedings commenced before the time when this Part comes into operation; or

(b) any proceedings commenced after that time against a person charged with the same conspiracy as that charged in any proceedings commenced before that time."

None of these transitional provisions affect the applicants since the proceedings against them were not commenced until after Part XIIA had come into operation.

5. There is currently a proposal to add a further transitional provision. This proposal is contained in clause 14 of the Statute Law (Miscellaneous Provisions) Bill 1999. If passed, it would add to s.159E(7) an item (c) which would read:

"any proceedings commenced after that time in respect of a conspiracy committed before that time."

That would certainly cover the applicants' position. And they rely on the fact that it has not yet been enacted.

6. The Court of Appeal rejected the applicants' argument that although their conduct "has not been made lawful" by the Part XIIA, it "is nevertheless unenforceable because it cannot be prosecuted". And the Court of Appeal then went on to say this:

"Since the purpose of the new legislation was not to decriminalise certain forms of conspiracy, but to put the crime of conspiracy on a statutory footing, it cannot have been the intention of the legislature to make conspiracies which had been committed prior to 2 August 1996 unenforceable by prosecution if proceedings had not been commenced by then."

7. As far as the proposal for a further transitional provision is concerned, the Court of Appeal said that it rejected the applicants' argument that such proposal "shows that it is acknowledged that there is a lacuna in the law". And the Court of Appeal went on to say this:

"It may be that all that the promoters of the Bill are seeking to do is to clarify what the law currently is. It may be, therefore, that the provision is required 'for the avoidance of doubt' in order to lay to rest the arguments which have

been canvassed on this appeal. We have not regarded this legislative proposal as helping us one way or the other."

8. Turning to the transitional provision contained in s.159E(7)(b), the Court of Appeal said this:

"The upshot of all this is that section 159E(7)(b) should not be construed as providing for the only situation in which proceedings for a conspiracy at common law could be commenced after 2 August 1996. It therefore would not have prevented the Appellants from being charged after 2 August 1996 with conspiring to obtain a pecuniary advantage by deception contrary to section 18(1) of the Theft Ordinance and the common law."

9. On that view, the only remaining difficulty was that charging the applicants with having offended against s.159A was plainly wrong since the section did not exist at the time of the conspiracy. To remove this difficulty, the Court of Appeal directed that the charge be amended. The amendment directed was that the words "and section 159A of the Crimes Ordinance, Cap. 200" be deleted and replaced by the words "and to the common law". On that basis the Court of Appeal affirmed the applicants' convictions.

10. The applicants contend that no such amendment is permissible. This is because, the applicants contend, no charge such as the amended charge could have been laid against them.

11. In applying for leave to appeal to the Court of Final Appeal, the applicants say that a question of great and general importance is involved. The question as set out in their written application is as follows:

"Does the abolition, on 2 August 1996, of all common law conspiracies in Hong Kong (other than the offence of conspiracy to defraud), by s.159E(1) of the Crimes Ordinance, Cap. 200, preclude an information being lawfully laid after that date, in relation to conduct which occurred before that date, for a common law conspiracy (other than for the offence of conspiracy to defraud), not within the terms of the transitional provisions of s.159E(7) of the Crimes Ordinance?"

12. Now what sort of abolition is involved in this case? There is no doubt that what the applicants did amounted to a conspiracy to obtain a pecuniary advantage by deception. It amounted to such a conspiracy when they did it before 2 August 1996. And if they had done it after that date, it would still have amounted to such a conspiracy. That is the context of the question whether they are immune from being charged after that date with the conspiracy which they entered into before that date.

13. The point contained in the question raised by the applicants is one of great and general importance. Given the context to which we have just referred, the applicants may ultimately fail. But we consider their point to be at least reasonably arguable. It is not easy to attribute to the Legislature an intention to bring about the state of affairs for which the applicants contend. But these facts remain: there are transitional provisions; but they do not cater for the present prosecution; and there is a proposal for a further transitional provision which would do so; but it has not yet been passed. All things considered, the point merits consideration in an appeal. We certify the point and grant leave to appeal so that it may be argued before the Court of Final Appeal.

Representation:

Mr G.J.X. McCoy SC (instructed by the Legal Aid Department) for the applicants

Mr D.G. Saw SC and Mr Gary Lam (of the Department of Justice ) for the respondent