Chim Pui Chung v. HKSAR

FAMC No. 1 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 402 OF 1998)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Litton PJ and Mr Justice Ching PJ

Date of Hearing: 1 February 1999

Date of Determination: 1 February 1999

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D E T E R M I N A T I O N

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Mr Justice Ching PJ :

1. The applicant was brought to trial before a jury on six counts. In one of them, count three, he was charged alone. The remainder consisted of conspiracy charges in which it was alleged that he had conspired with Chan Kai-fung, the second Defendant, and with other persons unknown. Chan Kai-fung was acquitted of all the charges brought against him. The applicant was acquitted upon the first five but was convicted on the sixth. He applied for leave to appeal to the Court of Appeal but this was refused. He then applied to the Court of Appeal to certify that there were two points of law of great and general importance involved but this the Court of Appeal also refused. He now applies to this Committee to certify only one of them and for leave to appeal upon it. He also asks for leave to appeal on the ground that a grave and substantial injustice has been done.

2. The sixth count reads, in part,

"Conspiracy to Forge, contrary to Common Law and section 71 of the Crimes Ordinance, Cap. 200.

Particulars of Offence

Chim Pui-chung and Chan Kai-fung, on divers days on and between the 1st day of July 1994 and the 25th day of August 1994, in Hong Kong, conspired together and with other persons unknown, to make false instruments, namely 'Instruments of Transfer' documents, purporting to evidence the Sale of Shares in Lucky Man Properties Limited, by the named transferors to Power Master Development Limited, with the intention that they or another should use them to induce another, namely officers of the Inland Revenue Department and Progressive Registration Limited, to accept them to do or not to do some act to the prejudice of himself or another ..."

The acts were then particularised. The relevance of the Inland Revenue Department was that the documents attracted stamp duty. Progressive Registration Limited was the company registrar of Lucky Man Properties Limited who would not have accepted the documents unless they had been properly stamped.

3. The remaining question of law which is said to be of great and general importance is,

"1. Where the prosecution alleges in an indictment that an accused conspired 'with persons unknown' then

(a) is there a duty on the prosecution (arising from either the accused's right to a fair trial under Article 10 of the Hong Kong Bill of Rights, (sic) Cap. 383 (HKBR) or Article 14.1 of the International Covenant on Civil and Political Rights (ICCPR) and/or from the various rights of an accused under Article 11(2) HKBR or Article 14.3 ICCPR and/or otherwise to identify the evidence upon which such allegation is made or otherwise to explain or put the basis of its case thereon with proper particularity, in its opening address to the jury, in its cross-examination of the accused and in its closing address to the jury?

(b) if the answer to (a) is 'yes', and if the prosecution fails to fulfill that duty, should the trial Judge withdraw the issue of conspiracy with persons unknown from the jury?"

Nobody can doubt that the applicant was entitled to a fair trial. Nor can it be doubted that, generally, the prosecution should, if it can, give particulars which might assist in identifying the persons unknown and otherwise. There is no dispute as to what the law is. It is clear and was set out by the Court of Appeal. The proposed question is no different from what was set out. It is a question of degree, dependant on the facts, whether the prosecution has discharged its duty. We agree with the Court of Appeal that the prosecution did so. In the present case, the defence sought no particulars relating to the persons unknown. This is hardly surprising. The applicant's leading counsel at trial, Mr John Griffiths, SC, was clearly aware of the allegation as was the applicant. It was dealt with both in the applicant's evidence and in counsel's closing address. There was ample evidence upon which the jury could infer that the applicant had conspired with a person or persons who could not be identified. We therefore decline to certify this question.

4. So far as the second ground upon which leave is sought, namely that a substantial and grave injustice has been done, we draw attention to two previous determinations of this committee, in Zeng Liang-xin [1997] HKLRD 1204 and Kwok Hung-fung [1998] 1 HKLRD 334. The Court of Final Appeal does not sit and will not allow itself to be used as a second court of criminal appeal. The ground of substantial and grave injustice is available only in exceptional cases such as where something fundamental has gone wrong at trial. It is not necessary to list the matters put forward by the applicant in the present case. It is enough to say that they come to nothing more than that he wishes to advance the same issues already argued both at trial and in the Court of Appeal. In particular, what the applicant says is this. Because he was charged with a conspiracy with persons unknown in Count 6, it was open to the jury to conclude erroneously that a person working in the office on the transfer documents was a co-conspirator even though that person may have thought that the documents were filled in with the authority of the named persons.

5. This submission was dealt with extensively by the Court of Appeal which concluded as follows,

"The essential point taken by Mr Griffiths is that even if, contrary to his main submission, the directions were sufficient for a defendant as a co-conspirator, they were not adequate and not sufficiently focused upon 'persons unknown'. Inevitably the summing-up was directed primarily to the participation and guilt of the two defendants ― but not exclusively so. The jury was specifically directed in 'situation no. 3' that it was open to convict the applicant if the jury concluded that he conspired only with other persons unknown. Moreover, the judge made it clear that 'the offence is committed when two or more persons agreed that they will do the unlawful act'; 'it is the agreement to commit the offence and the intention to take part that forms the offence'; and, 'It would be sufficient if the prosecution is able to prove beyond reasonable doubt that there has been a meeting of minds between more than one person that an offence will be committed by them'."

In essence those arguments, so far as they merit consideration at all, amount to saying that there was an inadequate direction and that there was no or no sufficient evidence upon which the jury could convict. We agree with the Court of Appeal that there was an adequate direction and we have already said that there was ample such evidence.

6. This application is refused.

Representation:

Sir John Swaine SC & Mr Richard Wong (instructed by M/s Dixon Tang & Co) for the Applicant

Mr Michael Lunn SC & Mr Kevin P Zervos SCC (of the Department of Justice) for the Respondent