Case Document

100%Judiciary

HCMA000364/1999

HCMA 364/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 364 OF 1999

(ON APPEAL FROM SKC NO. 3535 OF 1998)

______________

BETWEEN
	THE HONG KONG SPECIAL ADMINISTRATIVE REGION	Respondent

	AND

	(1) CHAN PUN CHUNG	Appellants
	(2) SHUM HIU WAH

______________

Coram: Stuart-Moore VP, Keith JA and Woo JA in Court

Date of Hearing: 19 January 2000

Date of Judgment: 3 February 2000

_______________

J U D G M E N T

_______________

Keith JA (giving the judgment of the Court):

Introduction

1. On 21 January 1999 at South Kowloon Magistrates' Court, the Appellants, who are husband and wife, were convicted, following a trial before Ms Bina Chainrai, on two charges. They had pleaded not guilty. In due course, they appealed against their convictions, as well as against the sentences which were subsequently imposed.

2. The appeal was originally listed for hearing before Deputy Judge Tong on 9 July 1999. On that occasion, both sides applied to have the hearing of the appeal reserved to the Court of Appeal pursuant to section 118(1)(d) of the Magistrates Ordinance (Cap. 227). That application was initially refused, but it was ultimately acceded to after there had been full submissions on the merits of the appeal and further submissions on the appropriateness of the referral of the appeal to the Court of Appeal.

The prosecution's case

3. The husband was a serving police officer. At all relevant times, he was a Hong Kong permanent resident, whereas his wife was not. They married on the mainland in September 1995. Prior to June 1997, the wife had visited Hong Kong on a number of occasions on a two-way permit. On those occasions, she had not been permitted to take up employment and she did not have a Hong Kong identity card.

4. The prosecution's case was that in December 1994 the husband was trying to obtain employment for his wife in Hong Kong. To that end, he obtained various documents from Madam Mok Kit Yin. Those documents included a certificate of her examination results and a report on her by a college which she had attended. Those documents were then submitted to prospective employers of the wife to enable her to obtain employment with them. One other document was also submitted. That was a forged identity card which bore all of Madam Mok's particulars but had the wife's photograph on it. The prospective employers believed the wife to be Mok Kit Yin, and that the documents which had been submitted were genuine and related to her. It was on the strength of those documents that the wife was employed by them at various times from 1 April 1995.

The charges

5. That being the prosecution's case on the facts, the first of the two charges on which the Appellants were tried was one of conspiring to obtain a pecuniary advantage by deception. The conspiracy was alleged to have taken place between 1 December 1994 and 28 March 1995. The further particulars of the conspiracy are not relevant for present purposes, but in the interests of completeness they ought to be spelt out. They alleged that between those dates the Appellants had conspired with each other and Madam Mok to dishonestly obtain for the wife a pecuniary advantage, viz. the opportunity to earn remuneration in employment, by a deception, viz. by the wife falsely representing herself to be Madam Mok, and by using in support of her application for employment documents in Madam Mok's name, namely the certificate of Madam Mok's examination results and the college report on her.

6. The second of the two charges related to the wife only. The charge was using a forged identity card. The particulars of the offence were that, on or about 28 March 1995, she had used a forged Hong Kong identity card in the name of Madam Mok but which bore a photograph of her.

The appeal against the convictions on the first charge

7. The magistrate's findings of fact mirrored in their entirety the prosecution's case. No challenge is made to those findings of fact on the first charge. The challenge relates solely to the way in which the charge was described in the amended charge sheet. The charge sheet described the offence as being contrary to section 18(1) of the Theft Ordinance (Cap. 210) and section 159A of the Crimes Ordinance (Cap. 200). Section 18(1) of the Theft Ordinance creates the offence of obtaining a pecuniary advantage by deception, and nothing turns on the inclusion of that provision in the charge. It was the inclusion of section 159A of the Crimes Ordinance in the charge which has given rise to the difficulties with which the case has been bedevilled.

8. The problem, in a nutshell, is this. Before 1996, crimes of conspiracy were a creature of the common law. However, common law conspiracies (with the exception of conspiracies to defraud) were abolished in 1996. They were replaced by statutory conspiracies, which were created by section 159A of the Crimes Ordinance. Since the charge alleged that the offence which the Appellants had committed had been contrary to section 159A of the Crimes Ordinance, it was the statutory offence of conspiracy which they faced. The problem was that that was an offence which they could not have committed because the offence of conspiracy which they were alleged to have committed occurred before 1996, i.e. between 1 December 1994 and 28 March 1995.

9. Mr Daryl Saw SC for the Respondent did not dispute this analysis. However, he contended that if the charge which the Appellants had faced had been a common law conspiracy, the trial would have taken an identical course, and the Appellants would have been convicted on that charge. Such convictions can be substituted for the convictions recorded by the magistrate. To that contention, Mr Philip Ross for the Appellants had two answers. First, the proceedings against the Appellants were commenced on 18 November 1998. Mr Ross claimed that the effect of the transitional provisions in the Crimes Ordinance following the abolition of the offence of common law conspiracy was that (with one exception not applicable to the present case) proceedings could not be commenced after the abolition of the offence of common law conspiracy for a common law conspiracy alleged to have been committed prior to the abolition of the offence. Secondly, even if such proceedings could have been commenced, Mr Ross contended that no procedural route exists for substituting, on the hearing of an appeal against conviction by a magistrate, a conviction for an offence in place of the offence for which the defendant was convicted.

The proper construction of the transitional provisions

10. In order to understand the contentions on the first of these issues, it is necessary to examine the statutory provisions. The new law relating to conspiracy is to be found in Part XIIA of the Crimes Ordinance. Part XIIA consists of sections 159A to 159L. That Part was added to the Crimes Ordinance by the Crimes (Amendment) Ordinance (No. 49 of 1996). It came into operation on 2 August 1996. Its function was not to decriminalise certain forms of conspiracy, but to codify the law and to put the law of conspiracy on a statutory basis.

11. The offence of statutory conspiracy was created by section 159A(1), which provides:

"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."

The break with the old law was achieved by section 159E. Section 159E(1) provides:

"Subject to the following provisions of this section, the offence of conspiracy at common law is abolished."

Section 159E(2) then preserved the common law offence of conspiracy to defraud. Finally (and this is the provision on which the argument has focused), transitional provisions are contained in section 159E(7), which provides:

"Subsection (1) 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."

12. Mr Ross' argument is that since 2 August 1996 proceedings for the offence of conspiracy at common law can only be sustained in the two situations covered by section 159E(7). The present proceedings are not covered by section 159E(7)(a) because the proceedings had not been commenced prior to 2 August 1996. Nor do they come within section 159E(7)(b). That permits proceedings to be commenced after 2 August 1996 for a common law conspiracy committed before that date, but only if someone had been charged with that conspiracy before that date. No-one had been so charged.

13. Again, Mr Saw did not dispute that the present proceedings do not come within either of the two situations covered by section 159E(7). His argument was simply that section 159E(7)(b) did not identify the only situation in which proceedings for a conspiracy at common law could be commenced after 2 August 1996. In other words, section 159E(7)(b) did not exclude the commencement after 2 August 1996 of proceedings for a conspiracy at common law when that conspiracy was alleged to have taken place before 2 August 1996. For his part, Mr Ross contended that section 159E(7) represented a comprehensive transitional regime. It provided for the only situations in which proceedings for a conspiracy at common law could be commenced or continued. Thus, if proceedings had been commenced before 2 August 1996, section 159E(7)(a) permitted them to continue. Again, proceedings for a conspiracy at common law could be commenced after 2 August 1996 if someone had been charged with the same conspiracy before 2 August 1996. But in no other circumstances could proceedings be commenced after 2 August 1996 for the offence of conspiracy at common law.

14. Before considering this issue on its merits, we digress to say what this case is not about. It is not about whether conduct which used to be unlawful has retrospectively been made lawful. In other words, Mr Ross was not saying that conduct prior to 2 August 1996 which would then have been unlawful because it constituted the offence of conspiracy at common law has, by virtue of the abolition of that offence and the limited savings effected by the transitional provisions, been retrospectively rendered lawful. That conduct would continue today to be found to be unlawful if the courts had the power to consider it. Mr Ross' point is that the courts no longer have the power to consider it because what has been outlawed by the legislation are proceedings for that offence commenced after 2 August 1996 (unless the proceedings come within the one exception in section 159E(7)(b)). The conduct has not been made lawful. It remains unlawful, but is unenforceable because it cannot be prosecuted.

15. We return, then, to the critical question whether section 159E(7)(b) identifies the only situation in which proceedings for the offence of conspiracy at common law could be commenced after 2 August 1996. 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. That would have put beyond the reach of the criminal justice system criminal conspiracies which had been committed before 2 August 1996 but which had not been detected by then or which, though detected, had not been investigated sufficiently to warrant the bringing of criminal proceedings by then. We regard it as unimaginable that the legislature could have intended such a state of affairs to exist. Indeed, it is plain that the promoters of the Bill which eventually became the Crimes (Amendment) Ordinance (No. 49 of 1996) had no such intention. That is apparent from para. 7(c) of the Explanatory Memorandum explaining the Bill. It reads, so far as is material:

".... acts of conspiracy .... done before the commencement of the Bill shall not be subject to the provisions of the Bill ...."

It then referred expressly to section 159E(7) in that context.

16. To be fair, Mr Ross did not contend otherwise. He accepted that the legislature could not have intended such an offence to be unenforceable by prosecution, and he conceded therefore that the failure to include in the transitional provisions a saving to cover the situation which has arisen in the present case must be regarded as entirely inadvertent. Accordingly, we did not regard it as either desirable or necessary for us to take into account the various legislative materials which Pepper v. Hart [1993] AC 593 now permits courts in appropriate circumstances to consider.

17. The fact is that the abolition of an offence merely means that conduct which would have amounted to the offence before its abolition will not amount to an offence if the conduct had taken place after its abolition. Thus, the abolition of an offence does not mean that conduct which would have amounted to the offence before its abolition cannot be prosecuted after its abolition. Accordingly, if the statute abolishing the offence is to be construed as preventing the commencement of criminal proceedings after its abolition for an offence committed before its abolition, the statutory language must be clear. We do not regard the language of section 159E(7) as so clear as to disapply the normal effect of the abolition of the offence.

18. In addition, the sheer unlikelihood of the legislature intending a conspiracy at common law to be unenforceable by a prosecution commenced after 2 August 1996 leads us to conclude that section 159E(7)(b) cannot have been intended to be the only situation in which proceedings for a conspiracy at common law could be commenced after 2 August 1996. One of two things, therefore, must have happened - both of which would have been entirely consistent with the legislature not intending in any way to abrogate the principle that the abolition of an offence does not prevent proceedings being commenced after its abolition for an offence committed before its abolition.

19. The first possibility is that section 159E(7)(b) was a provision included in section 159E(7) simply for the avoidance of doubt. It was merely recognising that it might be thought that where someone had been charged prior to 2 August 1996 with a conspiracy at common law, and a co-conspirator was to be charged after 2 August 1996 with the same conspiracy, there may be a problem about the latter being charged with a conspiracy at common law. It was therefore providing, for the avoidance of doubt, that that was not a problem, and that the latter could be charged with a conspiracy at common law.

20. The second possibility is that the legislature simply did not appreciate that the language of section 159E(7)(b) - which was lifted from section 5(4)(b) of the English Criminal Law Act 1977 - was inappropriate to cover all proceedings commenced after 2 August 1996 for the offence of conspiracy at common law. If the legislature had appreciated that the language did not achieve the purpose which it was intended to achieve, it would not have used the language which it did.

21. For what it is worth, we think that the second possibility is much the likelier scenario, and that the use of language which did not match the true legislative intent arose in the following way. The move to change the law of conspiracy in Hong Kong was initiated by a report published by the Law Commission of Hong Kong in 1994. That report recommended the adoption of a "mini-code" for conspiracy incorporating provisions based on the English Criminal Law Act, which abolished conspiracy at common law and created the statutory offence of conspiracy. The English legislation expressly provided for the retrospective operation of this new offence. In other words, all conspiracies, whether committed before as well as after the change in the law (other than those for which proceedings had already been commenced), should be charged as a statutory conspiracy. However, the provision in the English legislation providing for retrospectivity - section 5(5) of the Criminal Law Act - was omitted in the legislation in Hong Kong. That may have been because it was thought that a provision for retrospectivity might have contravened Art. 12 of the Bill of Rights. The irresistible inference, though, is that it was intended that a conspiracy committed before the change in the law would have to be prosecuted, even if the prosecution commenced after the change in the law, as a common law conspiracy, not that a conspiracy committed before the change in the law could not be prosecuted at all if proceedings for it had not been commenced before the change in the law. What is likely to have happened, therefore, is that when the equivalent of section 5(5) was removed from the Hong Kong legislation, the draftsman failed to notice the impact which that omission might have on section 159E(7).

22. In the interests of completeness, we should add that Mr Ross drew our attention to a current proposal (contained in clause 14 of the Statute Law (Miscellaneous Provisions) Bill 1999) to amend section 159E(7) by adding a new provision, which would be section 159E(7)(c) and which would read:

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

The effect of such an amendment would be to permit proceedings for a common law conspiracy committed before 2 August 1996 to be commenced after that date. Mr Ross contended that this shows that it is acknowledged that there is a lacuna in the law which needs to be filled. We cannot go along with that argument. 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.

23. A similar argument applies to the law of attempt. Part XIIA of the Crimes Ordinance also codified the law of attempt, by creating in section 159G(1) the new statutory offence of attempting to commit an offence, and by abolishing in section 159K(1) the offence of attempt at common law. The actual language of section 159K(1) is:

"The offence of attempt at common law is abolished for all purposes not relating to acts done before the commencement of this Part."

Mr Ross made the point that when the legislature intends to permit the prosecution of a common law offence after its abolition when the offence was committed before its abolition, it provides expressly for that as in section 159K(1). We cannot go along with this argument either. It could equally be said that section 159K(1) shows that where the legislature abolishes a common law offence, it preserves the offence for the purpose of enabling acts committed before its abolition to be prosecuted. Again, we have not regarded this statutory provision as helping us one way or the other.

24. 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.

The substitution of convictions for conspiracy at common law

25. Leaving aside the Indictment Rules (which arguably only apply to indictments, not charge sheets), Mr Saw contended that there are two possible routes by which convictions for conspiracy at common law could be substituted for the convictions for statutory conspiracy. They involve the invocation of section 51(2) of the Criminal Procedure Ordinance (Cap. 221) and section 27 of the Magistrates Ordinance. He did not wish to rely on section 51(2), because he regarded the decision of McMullin J (as he then was) in Kwok Hung v. R. [1978] HKLR 173 as preventing him from doing so. But he did not formally abandon any reliance on section 51(2) in case we took the view that section 51(2) could be relied on. We have not addressed the question of section 51(2) further, because we have reached the conclusion that section 27 (when relied on in conjunction with sections 118(1)(d) and 119(1)(d) of the Magistrates Ordinance) enables us to substitute convictions for conspiracy at common law in place of the convictions for statutory conspiracy.

26. The first question is whether the magistrate (a) could and (b) would have amended the information to substitute common law conspiracy with statutory conspiracy had it been drawn to her attention that the offences were alleged to have been committed prior to the creation of the offence of statutory conspiracy. It is here necessary to set out section 27 in full:

"(1) Where it appears to the adjudicating magistrate that there is -

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it,

he shall, subject to subsection (2) -

(i) amend the complaint, information or summons if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaint, information or summons.

(2) The adjudicating magistrate shall amend the complaint, information or summons where -

(a) the defect or variance mentioned in subsection (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.

(3) Following an amendment to a complaint, information or summons, the adjudicating magistrate shall -

(a) read and explain the amended complaint, information or summons to the defendant;

(b) give leave to the parties to call or recall and further examine such witnesses as may be reasonably required by a party having regard to the nature of the amendment;

(c) grant such adjournment as may be reasonably necessary to enable the parties to call or recall witnesses and to prepare their cases;

(d) if he thinks fit, make an order that the complainant or informant shall pay to the defendant such costs, not exceeding $5000, as may be occasioned by the amendment; and

(e) give judgment upon the substantial merits and facts of the case as proved before him, having regard to the offence charged in the complaint, information or summons as amended:

Provided that, if the amendment is made after the case for the complainant or informant is closed, no further evidence may be called by the complainant or informant other than evidence that would, apart from this section, be admissible in rebuttal.

(4) In this section, 'amend' includes the substitution of another offence in place of that alleged in the complaint, information or summons."

27. In our view, if the fact that the offences were alleged to have been committed prior to the creation of the offence of statutory conspiracy had been pointed out to the magistrate, and the prosecution had applied to amend the information to substitute the offence of conspiracy at common law for the offence of statutory conspiracy, the magistrate would have had no option but to amend the information. Our reasoning is as follows:

(i) The magistrate had the power to make an amendment of that kind. That is because section 27(4) permits an amendment which consists of substituting the offence of conspiracy at common law for the offence of statutory conspiracy.

(ii) One of the two conditions for the exercise of that power had been satisfied, namely the condition in section 27(1)(a) that there was "a defect in the substance ... of [the] .... information". That defect was that it charged the Appellants with an offence not known to the law at the time when the Appellants were alleged to have committed it.

(iii) One of the circumstances which required the exercise of the power to amend the information existed, namely that set out in section 27(1)(b) that "no injustice would be caused by [the] amendment". The case against the Appellants would have been exactly the same: they would merely have been denied the unexpected windfall of being acquitted on technical grounds unconnected with the merits of the case. In that connection, in the light of a particular submission made by Mr Ross, it should be pointed out that the maximum penalty would have been the same as well, namely the sentence which could have been imposed for the substantive offence of obtaining a pecuniary advantage by deception: see section 90(2) of the Interpretation and General Clauses Ordinance (Cap. 1) (prior to its amendment by the Crimes (Amendment) Ordinance in 1996) for conspiracies at common law, and section 159C(5) of the Crimes Ordinance for statutory conspiracies tried summarily.

28. Since the magistrate would have had to amend the information, the next question relates to the powers of the Court of Appeal. Can the Court of Appeal now amend the information, and if it can is the Court of Appeal permitted to substitute for the Appellants' convictions for statutory conspiracy convictions for conspiracies at common law?

29. In our view, the Court of Appeal has the power to amend the information. On an appeal reserved to the Court of Appeal by a judge of the Court of First Instance under section 118(1)(d) of the Magistrates Ordinance, the Court of Appeal may "exercise all or any of the powers conferred on a judge by this Part". The power conferred on a judge hearing an appeal by that Part of the Magistrates Ordinance included, in section 119(1)(d), the following powers:

".... the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate ...." (Emphasis supplied.)

Thus, since the magistrate had the power to amend the information under section 27, so too did Deputy Judge Tong under section 119(1)(d), and so do we under section 118(1)(d). In the exercise of that power, we direct that the information laid against the Appellants be amended by deleting the words "and section 159A of the Crimes Ordinance, Cap. 200" and by substituting for them the words "and to the common law".

30. The only remaining issue is whether the Court of Appeal is permitted to substitute for the Appellants' convictions for statutory conspiracy convictions for conspiracy at common law. In Fai Ma Trading Co. Ltd. v. Lai [1989] 1 HKLR 582, the Court of Appeal held that if an information was amended on appeal, the court had to direct that the amended information be reheard de novo by a magistrate. The reasons given for not being able to amend the information and confirm the convictions (or in the present case substitute for the wrong convictions the correct convictions) were:

(a) otherwise, "the appellant would be faced with a new charge to be tried on the magistrate's minutes from which no appeal would lie" (per Kempster JA at p. 589F);

(b) "it would not be consistent with [the authorities] for the appeal judge himself to conduct a paper trial on an information which he had amended" (per Kempster JA at p. 592C);

(c) "if an appellate court were to amend, and by so doing uphold the conviction, then a defendant would stand convicted upon a charge or information on which he has not stood trial" (per Silke V-P at p. 593I);

(d) "Section 27 sets out very precisely what a magistrate must do after any amendment, such as giving the defendant the right to re-call any witness for further cross-examination if appropriate. Clearly that is not a procedure which should be carried out in the appeal court, even if it was physically possible to do so ...." (per Penlington JA at p. 595B-C).

In addition, the Court of Appeal was much influenced by the judgment of Jones J in R. v. Chen Ta Hoi [1986] HKLR 1189 in which, following Wong Man Shun v. R. [1980] HKLR 266, it was held at p. 1197G that:

".... save in exceptional circumstances, a charge should not be amended on an appeal, except in respect of minor particulars, as it would deprive an accused person of the protection of section 27 unless the case is referred back to the magistrate for re-hearing."

31. We recognise without reservation the need for persons who are facing amended informations to enjoy fully the protection afforded to them by section 27(3) and to be properly tried on the amended informations. Thus, the course suggested by the court in Fai Ma should apply to all those cases in which the amendment of an information by the appellate court would have had an impact on the trial before the magistrate if the amendment had been made at the trial. That would occur, for example, where the amendment changes what the prosecution would have had to prove or what would have amounted to a defence, or where the amendment might have resulted in additional evidence being called or evidence which might have been called not being called, or where the amendment might have affected tactical decisions which were made in the trial. That is not an exhaustive list of the ways in which amendments might have had an impact on the trial, but it illustrates why in most cases justice would not be done if an amendment could be made on appeal without at the same time a new trial being ordered.

32. But having regard to the reasons relied upon in Fai Ma for requiring an amended information to be heard de novo, we do not think that the Court of Appeal was addressing what would be appropriate if the nature of the amendment sought was such that the course of the original trial would not have been affected at all. In our view, the course proposed in Fai Ma was not intended to apply to such a case. Such a case would come within the category of "exceptional circumstances" referred to in Chen Ta Hoi. What, we ask rhetorically, is the point of ordering a new trial on an amended information where, had the information been amended during the original trial, the course of that trial, having regard to the nature of the amendment, would have been identical?

33. In the present case, had the information been amended - whether before, during or at the end of the trial - to charge the Appellants with conspiracy at common law, the course of the trial would have been identical. This case, therefore, is one of the exceptional cases in which a re-trial need not be ordered. We have earlier in this judgment directed that the information be amended. We now vary the magistrate's decision by setting aside the convictions on the first charge of statutory conspiracy, and substituting for the convictions on that charge convictions for conspiracy at common law.

34. We have not overlooked Mr Ross' argument that a re-trial would have resulted in unfairness to the Appellants because the prosecution could then have relied on various statements made by the Appellants to the probation officer who, following their convictions, provided reports on the Appellants to the magistrate. Those statements are said by Mr Ross to have been inconsistent with each other, and with an account put on their behalf in cross-examination to Madam Mok. That could have resulted in (a) the Appellants having to be separately represented at any re-trial and (b) one or both of the Appellants giving evidence at the re-trial. These concerns do not now arise. Had we thought that we were obliged to order a re-trial, we would have had to consider these concerns with care. But since we have decided that we do not need to order a re-trial, these concerns fall away. However, we doubt whether they would have prevented us from ordering a re-trial had we thought that amending the information required us to do so. Mr Saw undertook that at any re-trial the prosecution would neither call evidence as to what the Appellants are alleged to have told the probation officer, nor put that to them if they elected to give evidence. In any event, the evidence would, in the light of R. v. Wu Chun Piu [1996] 1 HKCLR 1, almost certainly be held to be inadmissible.

The appeal against the conviction on the second charge

35. In order to convict the wife on the second charge, the magistrate had to be satisfied that she had used the forged identity card itself, and not a photocopy of it, when she applied for employment in March 1995. The magistrate found as a fact that it was the card itself, and not a photocopy of it, which the wife had used. The question, therefore, is whether there was any evidence upon which the magistrate could have made that finding.

36. There was no direct evidence that the wife had used the card itself, as opposed to a photocopy of it. But the evidence from which the prosecution invited the magistrate to infer that she had used the card itself consisted of

(a) the fact that the wife's employers' records contained a photocopy of the forged identity card, and

(b) the employers' practice when a new employee was recruited.

The evidence of the employers' practice came from one of their employees. Her evidence was that the job applicant

"should bring along a recent photo and also, if it was in the past, we would photocopy that person's ID card." (Emphasis supplied.)

If, therefore, the practice in the past had been for the employers to photocopy the job applicant's identity card, the job applicant had to have presented the original of it to the employers to enable them to photocopy it. However, the employee could only give admissible evidence of the practice which had been in place when her employment commenced in March 1998. It is not possible to tell whether the reference to the past practice in her evidence was a reference to the practice prevailing in March 1998 (which would have been admissible) or to a practice which had ceased by March 1998 (which would have been inadmissible as hearsay). Since the latter possibility could not have been excluded, the magistrate would not have been entitled to assume the former.

37. But even if she had been entitled to assume the former, it would not necessarily have followed from the fact that a particular practice was prevailing in March 1998 that the same practice had prevailed in March 1995. We note that even in 1995 section 17J of the Immigration Ordinance (Cap. 115) in its then form required employers to inspect the identity cards of job applicants, but that does not mean that all employers always complied with that requirement. There were, therefore, no primary facts from which it had been permissible for the magistrate to infer that it was the forged identity card itself, rather than a photocopy of it, which the wife had used.

38. There was an alternative basis on which the magistrate found the wife guilty on the second charge, and that was that she had used the information on the identity card. But using information on what was, ex hypothesi, a photocopy of a forged identity card cannot amount to using a forged identity card. The wife's conviction on the second charge cannot therefore be sustained on this ground either. Mr Saw did not contend otherwise.

Conclusion

39. For the reasons we have given, we have substituted for the convictions on the first charge convictions for conspiracy at common law, but the wife's appeal against her conviction on the second charge is allowed, her conviction on that charge is quashed and the sentence which was imposed on that charge is set aside. All that remains is the Appellants' appeals against their sentences in respect of the substituted convictions on the first charge. Since the Appellants are now serving prison sentences imposed by the District Court after the imposition of the sentences imposed in the present case, it may be that they will wish to re-consider whether it is in their interests to pursue the appeals against the sentences imposed in the present case. We therefore make no order on the appeals against sentence, but give the Appellants liberty to restore the appeal if they so wish within six weeks from the handing down of this judgment.