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CACC000322/1978
| IN THE COURT OF APPEAL |
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| on appeal from the District Court |
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1978 No. 322 |
| BETWEEN |
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CHAN Yiu-tim |
Appellant |
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The Queen |
Respondent |
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Coram: Briggs, C.J., Huggins J.A. & Leonard J.
Date of Judgment: 25th October, 1978.
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JUDGMENT
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Leonard, J.:
1. The appellant in this case, a police sergeant, was charged with a single count of conspiracy the particulars of which alleged that he together with 5 other named police officers on or about the 12th December 1975 conspired to obstruct the course of public justice in that the six named persons should act contrary to their public duty as police officers in relation to suspected offences against the Dangerous Drugs Ordinance at No. 153-155, Tung Choi Street. Mongkok.
2. All six took part in a raid made on those premises an opium divan on that date. The evidence for the Crown consisted perforce of that of tainted witnesses two at least of whom were operators of the divan where any agreement to obstruct the course of justice there may have been took place and the remainder of whom were using the divan. The brunt of the evidence was to the effect that the raiding party led by the appellant originally arrested six persons; four of those arrested were later released as the result, according to the case for the Crown, of an agreement entered into between the "divan operators" and members of the raiding party and a corrupt payment by the divan operators to a member or members of the raiding party. Four of the accused were originally found to have no case to answer on the basis that they had not been proved to have participated in any agreement. The appellant and one other member of the raiding party were found to have had cases to answer. The learned trial judge was clearly in no doubt but that two police officers, one of whom was this appellant, had conspired with the divan operators in a bedroom in the premises but that was not the conspiracy charged. He acquitted the second accused of the conspiracy charged (whom he had held to have had a case to answer) because he was not "entirely without doubt that the second accused was the other officer in the bedroom".
3. It is to be noted that the two divan operators in question were not named in the indictment as co-conspirators. The six accused were not charged with conspiring with the divan operators nor was any "person unknown" alleged to have participated in conspiracy with them. The case all six had to meet was that they had conspired together not to accept a corrupt payment but to obstruct the course of justice in that they should act contrary to their public duty as police officers. The divan operators not being police officers could not have been guilty of the conspiracy charged. The essence of the offence as far as this appellant was concerned was therefore agreement with one or more of the other police officers engaged in the raid and charged with him. As already indicated all of those officers were acquitted, although the learned trial judge was clearly satisfied that one of them (which he could not say) had participated in an agreement with the appellant in the small bedroom in which the divan operators also were. This was not the agreement with which the six were charged the agreement with which the six were charged was an agreement between themselves or some of them - an agreement ancillary to any agreement there may have been between one or more of them and the divan operators. A verdict that five were not guilty of this secondary or ancillary conspiracy and the sixth guilty could not stand if R. v. Manning (1) is applicable and is to be followed today. In Manning's Case Manning and one Hannam were jointly indicted and tried together for conspiracy to defraud. Hannam threw the blame for the fraud on Manning. Lord Coleridge C.J. told the jury that the evidence might satisfy them as to one prisoner and not as to the other and that they might find one guilty and not the other. On appeal it was decided "with much reluctance" by all three members of the court that this was a fatal misdirection. Lord Coleridge C.J. who himself sat on the appeal observed:
"The earlier cases, it is true, are stated shortly and without much particularity of detail. It may be, if we had all the facts of those cases, they might turn out to be less in point than they appear to be at present but still from the time of 14 Hen. 4 it has been taken for granted by the judges of these courts, that in the case of an indictment for conspiracy, when two people are indicted and tried together (because different considerations arise where people are not tried together) either both must be convicted or both must be acquitted."
4. On this question it is to be noted that Archbold 39th Edition Para. 4082 contends (on the authority of observations made by Lord Morris, Lord Simon and Lord Salmon in R. v. Shannon (2) that R. v. Thompson (3) would not be followed today but does not contend that R. v. Manning(1) would not.
5. The logic of applying such a rule as is indicated in Manning's Case universally is of course open to question because a verdict of not guilty is not tantamount to a finding of innocence (it is perhaps unfortunate that the Scottish verdict of "not proven" is unknown to our law) but the reasoning behind the rule is that a man cannot conspire with himself.
6. This was explained in the Privy Council as recently as 1951. In Dharmasena v. The King(4) the appellant and a Mrs. S. were charged with conspiracy to murder and the appellant alone with murder a course expressly permitted by the Criminal Procedure Code of Ceylon. Both were found guilty of conspiracy to murder and the appellant guilty of murder. On appeal to the Court of Criminal Appeal in Ceylon the conviction of Mrs. S. was quashed and a new trial was granted in her case but both appeals of the appellant were dismissed. Mrs. S. was retried and found not guilty. The appellant thereafter appealed to the Privy Council against both convictions. As to the conviction on the charge of conspiracy Lord Porter in delivering the reasons for having advised his Majesty that the appeal should be dismissed some four days after having announced that advice, observed:
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After this verdict" (i.e. that by which Mrs. S. was found not guilty) "the position was that of two conspirators one had been found guilty by one jury and the other acquitted by another. |
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In their Lordships' opinion this is an impossible result where conspiracy is concerned. It is well established law that if two persons are accused of conspiracy and one is acquitted the other must also escape condemnation. Two at least are required to commit the crime of conspiracy: one alone cannot do so. In the present case the only conspirators suggested were the two accused persons, and there were no others known or unknown who might have participated in the crime. It is true that one conspirator may be tried and convicted in the absence of his companions in crime : Reg. v. Ahearne (1852) 6 Cox C.C. 6 but where two have been tried together so that the only possible verdict is either that both are, or neither is, guilty, an order for the re-trial of one makes it imperative that the other should also be re-tried. In their Lordships' opinion, therefore, if two persons are accused of a criminal conspiracy and on appeal one can be, and is, sent for re-trial the other should be sent at the same time for re-trial also, so that both may be convicted or acquitted together. In the present case in as much as Mrs. S. has been found not guilty of conspiracy, their Lordships think the proper course is to treat her acquittal as a disposal of the charge of conspiracy and as involving the acquittal of the appellant also on that charge. The appeal against conviction on that count should accordingly be allowed." |
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What is stated here, as in almost in all the cases on the subject, is that one (only) of two alleged conspirators cannot be guilty of conspiracy but the reason for the rule demands that it apply equally to one of six where all six are named and five are acquitted.
7. The only case (brought very properly to our attention by Mr. Huggins) suggesting that the rule does not apply is R. v. Shannon(2) in which the authorities on this question are examined with great particularity and care both in the Court of Appeal and in the House of Lords. There Shannon and one T were charged (1) with having conspired together dishonestly to handle stolen goods and (2) with handling stolen goods. To both charges, Shannon pleaded guilty. T pleaded not guilty. The jury at T's trial disagreed and T was re-tried alone. He was found not guilty of handling; thereupon no evidence was offered against him on the charge of conspiracy and a formal verdict of not guilty was entered. Shannon thereupon appealed. The appeal was allowed and the Crown appealed against the decision of the Court of Appeal with leave, the question certified to be of general public importance being
"If 2 persons alone (that is to say with no other persons named or unnamed) are indicted for conspiracy together and the first pleads guilty but the second pleads not guilty and is subsequently tried and acquitted must the conviction of the first upon his own confession thereupon be quashed."
(I pause to remark that this is a very different question from that to which I seek the answer which is "If 6 persons are indicted for conspiracy together [that is with no other person named or unnamed] and the first is convicted after trial but it is found that the third, fourth, fifth and sixth have no case to answer and the second is acquitted at the same trial can the conviction of the first stand").
8. The appeal by the Crown was successful. After an examination of the authorities including R. v. Manning(1) and Dharmasena v. The King(4) Lord Morris of Borth-y-Gest (with whose speech Lord Reid Agreed) had this to say:
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Having regard to the state of the previous authorities, it would have been difficult for the Court of Appeal to decide the question of law otherwise than as they did. But for the reasons which I have given and departing from much of what was said in such case as R. v. Manning and R. v. Plummer and Dharmasena v. The King I consider that the conviction of the respondent Shannon was not invalidated by the subsequent acquittal of Tracey. |
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If, as in Dharmasena's Case, two people are tried together for conspiring with each other and are convicted and if they can and do appeal and if for any reason a new trial can be ordered I express no disagreement with the view expressed in Dharmasena's Case that the order for a new trial should be of both. |
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If A is charged with conspiring with a named person who has died or who has not been apprehended or cannot be found or if the charge is of conspiring with some unknown person there is of course no reason why the trial of A should not proceed. |
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The difficult situation is that which arises where A and B, charged with conspiring with each other, are tried together and where there is evidence which is admissible against one but not against the other, or where the evidence against one seems stronger than the evidence against the other. In that situation can one be convicted and the other acquitted? If the only evidence on a joint trial is evidence which is admissible against both and equally of force against both then clearly both could be convicted or both acquitted but no other result could be valid. |
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If I am right in my view that, where there is a charge of conspiracy against A and B (the charge not alleging any conspiracy with anyone else) and where A is first separately tried and pleads or is found guilty and where B is later separately tried and acquitted, such acquittal does not of itself warrant setting aside the conviction of A - should the same reasoning which supports this view also lead to the conclusion that if A and B are tried together but if the evidence is strong against one but weak or lacking in the case of the other a permissible result could be that one would be convicted and the other acquitted? |
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Here the force in logic comes into collision with what Mathew J. called 'an imperative rule of law' and with what Lord Coleridge C.J. called an 'established rule of practice'. Though the 'rule', whether it be called a rule of law or of practice, came into existence with the historical background to which I have alluded, I think that the rule has much to commend it where it is related to a case where a jury has to consider (in the circumstances under consideration) whether to return similar verdicts in the cases of A and B or whether to return different verdicts. Though by a clear direction a jury could have explained to them the processes of thought that they should apply in their deliberations, any jury might feel embarrassed and might well be perplexed in sorting out the reasoning that would enable them to say that they were fully satisfied in A's case that A conspired with B (with its corollary that in A's case they were fully satisfied that B conspired with A) and yet also to say that in B's case they were not satisfied that B conspired with A. In the administration of the criminal law it is particularly desirable that complications and subtleties should if possible be avoided. A 'rule' which at least at first sight would appeal to many as having the backing of common sense ought not lightly to be jettisoned. I consider, therefore, that in the situation posed it would be wiser to adhere to the 'rule' and that summings-up should give effect to it." |
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Viscount Dilhorne dealt with the "imperative rule of law" or "established rule of practice" alluded to in Manning's Case (1) in the following terms:
" For there to be a conspiracy there must be an agreement between two or more persons and where two persons only are charged with conspiring together and are tried together, it has from the time of 14 Hen IV until the present day been held that they must either both be convicted or both acquitted. Where two are charged with conspiring together and tried together, the conviction of one will not be allowed to stand if the other is not found guilty. Where a number of persons are charged with conspiring together and with no one else. the conviction of one will be quashed, if none of the others charged are convicted. (see Marsh v. Vauhan; R. v. Grimes Thompson; R. v. Thompson; R. v. Manning; R. v. Plummer; Dharmasena v. The King; R. v. Doyle; R. v. Mandeville)" (my emphasis).
He then proceeds to examine the authorities he has quoted and at page 759, there occurs the following passage:
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Where an accused person pleads guilty to a charge of conspiracy and it cannot be said that he had done so mistakenly, it cannot, in my view, be right that his conviction should be quashed if his co-conspirator or conspirators are tried subsequently - and it might be after the man who had pleaded guilty had served a sentence of imprisonment - and he or they are found not guilty or on appeal have their convictions quashed. It may be that owing to lapse of time important witnesses may not have been available at the subsequent trial. It may be that owing to lapse of time their recollection of events has faded. While the non-availability of witnesses who were available at the first trial or the failure of witnesses to recollect events might account for the acquittal of the co-conspirator or conspirators, it is no ground for saying that the conviction of the man who pleaded guilty was wrong. |
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The only case in which a contrary view has been expressed appears to be Dharmasena v. The King where the conviction of one of two persons tried together and found guilty was quashed on appeal and a new trial ordered. At the new trial he was acquitted and it was held that the conviction of the other conspirator must be quashed, Lord Porter saying that where two are charged with conspiracy it is an impossible result for one to be found guilty and the other acquitted. The rule applicable to joint trials was thus in this instance applied to separate trials." |
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and later observes:
"In Dharmasena v. The King no significance appears to have been attached to the fact that the trials were separate, and it seems to have been assumed by Lord Porter that the ancient rule applicable in the case of joint trials also applied to separate trials. In my view, it is no more an impossible result where two are charged with conspiring together and tried separately that one should be found guilty and the other acquitted than where A is charged with corruptly offering emoluments and is acquitted after B has been convicted of corruptly receiving them. I do not think that where there are separate trials for conspiracy the decision in Dharmasena v. The King should be followed."
It is to be noted that his observations are carefully limited to cases in which there are separate trials.
9. Lord Simon of Glaisdale does not so limit his observations and states at page 1043 that he
"would merely emphasise that the implication (in R. v. Andrews Weatherfoil Ltd. (1972) 1 All E.R. 65) that the same principles govern joint and separate trials, even though they may operate differently, since discrepant verdicts from the same jury may indicate that it has fallen into confusion. But 'guilty/not guilty' are not synonymous with 'guilty/innocent'; they are no more than the mundane, forensic counterparts of those ethical absolutes."
He later observes at page 766:
"The rule with which your Lordships are concerned is so deeply embedded as to have compelled the obviously reluctant adherence of the Court of Appeal. It has continued to be acted on after 1907 and was taken for granted by the Privy Council in Dharmasena v. The King. On the other hand, your Lordships are concerned here with 'lawyers' law'. The technical foundation of the rule is apparent, and so is the purpose which it served for so many years. But its irrationality and practical inexpediency are also apparent; and so is the fact that it is no longer needed to serve its former purpose. On the contrary, the present case illustrates its absurdity, inconvenience and injustice. The respondent pleaded guilty, fully understanding the situation and professionally advised."
In the speech of Lord Salmon he observes at page 1049:
"in my view, R. v. Plummer should be overruled and many of the dicta in R. v. Rowley, Dharmasena v. The King and R. v. Doyle can no longer be accepted."
And later
"If A and B are tried together for conspiring with each other and with no one else, the judge should nevertheless, in all save the most exceptional cases, continue to direct the jury that they should convict or acquit both, that is to say, they cannot convict the one and acquit the other. This may not accord with strict logic."
Nowhere in R. v. Shannon (2) is there any express condemnation of R. v. Manning (1) and to my mind it is clear that the majority of their Lordships adhere to the view that in joint trials of two or more named persons for conspiracy where no such saving words as "and with others unknown" are used in the particulars either two or more must be convicted; no single one may be.
10. It is true that these particulars could not have been properly amended in that fashion but I do not consider that it would have been beyond the bounds of the draftsman's ingenuity to have catered for the case in which the Crown could not prove with which of his co-accused the appellant may have conspired.
11. I say "may have" because I have arrived at the decision that this conviction could not stand because of the rule in Manning's Case (1) without any investigation of the other grounds of appeal.
12. I would however observe that it does appear that the learned trial judge showed some indication of having confused the conspiracy of which the appellant was convicted with a more general conspiracy with the divan operators which was not the subject of the charge.
Representation:
Mr. A. Huggins (Haldane & Co.) for appellant.
Mr. Murphy, C.C. for Crown/respondent.
(1) 12 Q.B.D. 241.
(2) (1975) A.C. 717.
(3) 16 Q.B.D. 832.
(4) (1951) A.C. 1.
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