Chan Pun Chung and Another v. HKSAR

FACC000003/2000

FACC No. 3 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2000 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 364 OF 1999)

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Date of Hearing: 7 November 2000

Date of Judgment: 24 November 2000

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J U D G M E N T

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Mr Justice Bokhary PJ:

1. I unhesitatingly agree with Mr Justice Chan PJ that the certified question of law before the Court should be answered in the negative and that this appeal must therefore be dismissed. So important is the principle of statutory interpretation involved, however, that I nevertheless venture respectfully to contribute a few words of my own.

2. The certified question is:

"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?"

In answering this question, I begin by considering the nature of the abolition involved here. What the appellants did undoubtedly 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. It is in this context that we must decide whether they are immune from being charged after that date with the conspiracy which they entered into before that date.

3. Now it is of course to be borne in mind that the Court is concerned with a criminal statute. At the same time, however, it is also to be borne in mind that the provisions in question are not ones which purport to criminalize hitherto lawful conduct. All that the prosecution says is that those provisions do not de-criminalize conduct which had been criminal prior to their coming into force

4. The word "abolished" in s.159E(1) of the Crimes Ordinance, necessarily raises the question: as from when did the abolition take effect? And the natural answer seems to be: as from the date when the relevant part of this Ordinance came into force. For this subsection does not say that persons who committed offences of common law conspiracy prior to that date are pardoned or rendered immune from prosecution. Yet that would be the result of acceding to the appellants' submission and giving an affirmative answer to the certified question. Even though subsection (7) of the same section would be otiose unless one were to attribute to the legislature an intention to bring about that result, I nevertheless find it impossible to attribute that intention to the legislature. For such a result would be bizarre and utterly at odds with the legislature's obvious intention that conduct such as that of these appellants should remain criminal, albeit under statute rather than at common law.

5. In Inco Europe v. First Choice Distribution [2000] 1 WLR 586 Lord Nicholls of Birkenhead (in a speech with which all the other Law Lords hearing that appeal agreed) demonstrated (at p.592 C-H) that in plain cases of drafting mistakes the interpretative role of the courts properly includes, under certain conditions, the power of adding words to, omitting words from or substituting words in a statute so as to preserve the obvious purpose of that statute. As to those conditions, his Lordship said (at p.592 F-G) that:

"Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance."

Then his Lordship added (at p.592H) that:

"Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd. v. Schindler [1977] Ch. 1, 18, Scarman L.J. observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation."

6. The draftsman must be taken to have included the s.159E (7) transitional provisions thinking that they were necessary or at least avoided doubt. But he cannot possibly be taken to have included them thinking that they could be said to operate so as to provide persons like these appellants with an immunity from prosecution. I have no doubt, therefore, that the inclusion of subsection (7) of s.159E is plainly a drafting mistake. And I am satisfied in all the circumstances that the conditions identified by Lord Nicholls of Birkenhead in the Inco Europe case obtain in the present case. As to the fact that the statutory provisions in question are penal, I have already pointed out that, although they are penal, they do not create new criminal liability. So the choice before the Court is a stark one. One course is to permit an obvious drafting mistake to undo the intention obviously to be attributed to the legislature. The other one is to grasp the nettle of recognizing the draftsman's obvious blunder for what it is and treating the product of such blunder as otiose thus preserving such intention. In my judgment, our proper course in this day and age of purposive interpretation is undoubtedly the latter one.

7. Like Mr Justice Chan PJ, therefore, I would answer the certified question in the negative, and dismiss this appeal accordingly.

Mr Justice Chan PJ:

8. This appeal involves consideration of the effect of abolition of the offence of conspiracy at common law by Part XIIA of the Crimes Ordinance, Cap 200 on offences committed prior to its coming into force on 2 August 1996.

Background

9. The 1st and 2nd appellants are husband and wife. On 18 November 1998, they were charged with 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. The offence was alleged to have been committed between 1 December 1994 and 28 March 1995. It was alleged that during that period, the appellants conspired with a Miss Mok whereby Miss Mok would allow copies of her Certificate of Education Examination and school report to be used by the 2nd appellant for the purpose of seeking employment in Hong Kong. Both appellants were convicted after trial by a magistrate (Ms B Chainrai) in South Kowloon Magistracy on 21 January 1999. They were each sentenced to 9 months' imprisonment.

10. The appellants appealed against the conviction. The main issue taken on appeal was this. The appellants' criminal conduct occurred before the Crimes (Amendment) Ordinance 1996 came into effect on 2 August 1996. By that Ordinance, the Crimes Ordinance was amended by the addition of Part XIIA which, among other things, created the statutory offence of conspiracy and abolished the offence of conspiracy at common law. The conspiracy charge which the appellants faced and of which they were subsequently convicted was expressed to be contrary to section 18(1) of the Theft Ordinance and section 159A of the Crimes Ordinance. That is to say, they were charged with and convicted of a statutory conspiracy for conduct which was committed before the creation of this statutory offence. The prosecution accepted that this could not be done.

11. Upon the application of the appellants which was supported by the prosecution, the case was reserved for the consideration of the Court of Appeal under section 118(1)(d) of the Magistrates Ordinance, Cap. 227. Having heard submissions from the parties, the Court of Appeal (Stuart-Moore VP, Keith and Woo JJA) amended the charge to an offence contrary to the common law and substituted the conviction by one under the amended charge. From this decision, the appellants now appeal to this Court, having obtained leave from the Appeal Committee under section 32 of the Court of Final Appeal Ordinance, Cap 484.

Decision of Court of Appeal

12. The appellants' case is as simple as it is attractive. It is submitted that they cannot be charged with statutory conspiracy contrary to section 159A since it did not exist when the offence was committed. They cannot be charged with conspiracy contrary to the common law either since such offence had been abolished for all intents and purposes by section 159E(1). It is accepted that the transitional provision (section 159E(7)) does not apply to them.

13. The Court of Appeal rejected this submission. Its reasons for upholding the convictions on the conspiracy charge were these. The 1996 Ordinance was not enacted to decriminalize certain forms of conspiracy but to put the law of conspiracy on a statutory footing. It was not the intention of the legislation to make conspiracies committed before the operation of the 1996 Ordinance immune from prosecution. The normal effect of abolition of an offence was that unless there was an express provision in the legislation, this did not prevent proceedings to be commenced after the abolition against such offence which had been committed before its abolition. The transitional provision did not specify the only situations where proceedings against common law conspiracies committed before the operation of the 1996 Ordinance could be maintained after that date. Hence, the appellants could still be charged with and should be convicted of a common law conspiracy.

Question in this appeal

14. The question certified as a point of law of great and general importance for the consideration of this Court is:

Does the abolition on 2nd August 1996, of all common law conspiracies in Hong Kong (other than the offence of conspiracy to defraud) by Section 159E(1) 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 Section 159E(7) Crimes Ordinance?

15. In my view, the answer to this question ultimately involves a construction of section 159E of the Crimes Ordinance. Before considering this particular provision, it is necessary to ascertain the intention behind the enactment of Part XIIA of the Crimes Ordinance.

Intention of legislation

16. In 1994, the Law Reform Commission in its report on "Codification: Preliminary Offences of Incitements, Conspiracy and Attempt" made various recommendations with regard to these offences. Of common law conspiracies, the Law Reform Commission in its Report said in paragraph 3.43:

"There is no real challenge to the rationale for and the continued existence of the offence of conspiracy ...There are aspects of the law, however, which remain imprecise."

17. The desirability of having conspiracy as a punishable offence was never in doubt. It was the scope of the law which required clarification and improvement. The Report recommended changes to the law of conspiracy which were largely modelled on the Criminal Law Act 1977 which was enacted in the United Kingdom following a comprehensive review of the common law offence of conspiracy by the Law Reform Commission of England and Wales.

18. Following the recommendations of our Law Reform Commission, the common law was changed by the enactment of the Crimes (Amendment) Ordinance 1996. The object of the exercise was (1) to codify the offence of conspiracy and place it in a statutory framework; (2) to remove some of the obscure crimes which may lead to misunderstanding; and (3) to improve on some of the less satisfactory and uncertain aspects in the law of conspiracy. It was intended to achieve this object by creating a statutory offence of conspiracy to replace common law conspiracy and making provisions for matters relating to this change. The statutory conspiracy as defined by section 159A makes it an offence only if it is an agreement to commit a crime. The new law decriminalizes controversial offences such as conspiracy to commit a tort and conspiracy to corrupt public morals or to outrage public decency, but retains the offence of conspiracy to defraud. However, it does not decriminalize conduct such as that committed in the present case which has always been generally and undoubtedly regarded as a criminal offence both before and after the coming into effect of the new law. Conduct which, if it were committed before 2 August 1996, would have been punishable as a common law conspiracy would also be caught by the new statutory offence. The substitution of common law conspiracy (with the exception of conspiracy to defraud) by a statutory equivalent is clearly intended to produce a continuum. This is particularly important for conspiracies which are notoriously difficult to detect and may not be revealed until some time after they had been committed. It is therefore most improbable that it could have been the intention of the legislature that conspiracies which were committed prior to that date would become unenforceable by prosecution after that date either under the common law or the new statute. As the Court of Appeal said at p.8 of the judgment:

"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 ...'"

19. It is accepted by the parties that the appellants' conduct in the present case amounted to a common law conspiracy before 2 August 1996 and would also be caught by section 159A(1) as a statutory conspiracy if it were committed after that date. It is the appellants' contention that no prosecution can now be brought against them for common law conspiracy after the effective date. This is because common law conspiracy has been abolished and conduct committed before 2 August 1996 which has not been expressly preserved cannot be prosecuted any more.

Relevant Provisions

20. The creation of the statutory offence of conspiracy by section 159A is expressed to be subject to the provisions of Part XIIA which include section 159E. That section abolishes common law conspiracies except conspiracy to defraud and makes savings and transitional provisions consequent upon such abolition. The relevant parts of section 159E read as follows:

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

...

(7) 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."

21. At the centre of this appeal is the question: what, upon its true construction, is the effect of section 159E on conspiracies committed before 2 August 1996? This raises 2 issues: first, what is the effect of abolition of a common law offence by statute on offences committed before its abolition; and second, what is the scope of the transitional provision? I shall deal with the second issue first because if the transitional provision has made sufficient provision for pre-abolition offences, the first issue may become less relevant.

Transitional provision

22. Section 159E(1) does not simply declare that the offence of conspiracy at common law is abolished. It provides that the abolition is subject to the provisions of that section. Immediately one sees from section 159E(2) that the common law offence of conspiracy to defraud is not affected by it. The abolition is further subject to the transitional provision in section 159E(7). That subsection enables two types of proceedings to be continued or commenced after the abolition. These proceedings clearly relate to common law conspiracies committed before 2 August 1996. However, this subsection admittedly does not apply to the present case. Nor is it indeed applicable to common law conspiracies committed before the effective date which were either not detected or for which no charge had yet been laid before that date. There is no other provision for the transition. It would seem that if the abolition is expressly subject to the transitional provision, one should not normally, as a matter of construction, look beyond such provision to discover the scope of the abolition.

Section 159E(7) is to be contrasted with the transitional provisions in section 5 of the English Criminal Law Act 1977 which read as follows:

"(4) Subsection (1) above shall not affect -

(a) any proceedings commenced before the time when this Part of this Act comes into force;

(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; or

(c) ...

(5) Sections 1 and 2 above shall apply to things done before as well as to things done after the time when this Part of this Act comes into force, but in the application of section 3 above to a case where the agreement in question was entered into before that time - ...."

23. Sections 1, 2 and 3 of the 1977 Act are similar to sections 159A, 159B and 159C of the Crimes Ordinance. The transitional provision, section 5(5), in effect extends the ambit of statutory conspiracy to cover offences committed before the new law came into effect. The Hong Kong legislation followed section 5(4)(a) and (b) but not section 5(5). (Section 5(4)(c) is not relevant for the present purpose.)

24. Section 159E(7) is also to be contrasted with section 159K which is a transitional provision for the abolition of the common law offence of attempt. Section 159 K reads as follows :-

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

(2) Except as regards offences committed before the commencement of this Part, references in any enactment passed before this Part which fall to be construed as references to the offences of attempt at common law shall be construed as references to the offence under section 159G."

25. This transitional provision makes it clear that offences of attempt committed before the effective date can still be prosecuted. The amendments to the offences of conspiracy and attempt at common law are contained in the same piece of legislation. The differences in their respective transitional provisions suggest that unlike attempts, common law conspiracies committed before 2 August 1996 which are not covered by section 159E(7) cannot be prosecuted after that date.

26. In my view, the wording of section 159E(7) is clear. There is no ambiguity. It does not make provision for conspiracies committed before 2 August 1996 for which no prosecution had been commenced before that date. What then is the effect of abolition?

Effect of abolition

27. As to the meaning of abolition in section 159E(1), the Court of Appeal said at p.9 of its judgment:

"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."

28. Counsel for the appellants submits that the Court of Appeal was wrong. It is pointed out that no authority was referred to by the court in support of that proposition which is contrary to previous authorities on the effect of a repeal of a statutory offence. Counsel argues that a statutory offence does not survive its repeal unless it is saved by a transitional provision in the repealing statute. Similarly if a common law offence is abolished, it is nullified and destroyed for all intents and purposes and offences committed prior to the abolition cannot be punishable any more. On the other hand, counsel for the prosecution submits that the appellants' argument necessarily suggests that the abolition in the present case had retrospective effect and that this must be wrong in the absence of express legislation (see In re Athlumney [1898] 2 QB 547). The repeal by statute does not affect existing rights and liabilities. Previous authorities on the effect at common law of a repeal of a statute have now been overridden by sections 19 and 23 of the Interpretation and General Clauses Ordinance, Cap 1.

29. The parties accept that conduct committed after the abolition which would have amounted to a common law conspiracy if it were committed before the abolition of the common law offence would not be subject to the old law. To this extent, they agree that abolition is prospective. The difference between them is on the effect of the abolition of the old law on conduct committed before the abolition.

30. It is not seriously disputed that the general principle with regard to the effect of a repeal of a statute by another statute is summarised in Halsbury's Laws of England, Vol. 44(1), para. 1296:

"To repeal an Act is to cause it to cease to be a part of the corpus juris or body of law. ... The general principle is that, except as to transactions past and closed, an Act or enactment which is repealed is to be treated thereafter as if it had never existed. However, the operation of the principle is subject to any savings made, expressly or by implication, by the repealing enactment, and in most cases it is subject also to the general statutory provisions as to the effects of repeal."

31. Reference has also been made by counsel for the appellants to cases in which this principle had been confirmed, explained and applied. See for example, Kay v. Goodwin (1830) 6 Bing 576; Lemm v Mitchell [1912] AC 400; and Surtees v Ellison (1829) 9 B& C 750; Bennett v Tatton (1918) 88 LJKB 313; R v Inhabitants of Mawgan (1838) 8 Ad & El 496; R Inhabitants of Denton (1852) 18 QB 761; R v Mckenzie (1820) Russ & Ry 429; R v Swan (1849) 4 Cox CC 108.

32. This principle and the cases cited in support are however concerned with the repeal of a statute by another statute. There has been no authority referred to us on what the position is with regard to the abolition of a common law offence by statute. However, it would seem that there should be no logical basis for not applying this principle to such a case simply because the source of the law which is removed by statute is different. But if the abolition of common law conspiracy by section 159E(1) were to be construed as having the effect as contended by the appellants, then, in the absence of any express savings or transitional provision preserving the position with regard to offences committed before the abolition, the result would be quite drastic. For this would mean that all criminal conspiracies committed before 2 August 1996 which had not been detected or for which no charge had been laid would become immune from prosecution after the abolition. The offenders would, as the Court of Appeal described, be put beyond the reach of the criminal justice system. This could not have been the intention of the legislature. Any reasonable person would reject such suggestion.

33. If, on the other hand, the approach of the Court of Appeal is to be adopted, this would also lead to some difficulty. It would render the transitional provision in section 159E(7), in fact all transitional provisions in similar situations, entirely otiose. For if conduct committed before 2 August 1996 survives the new legislation and can still be prosecuted as a common law conspiracy, then whether proceedings against such conduct had already been commenced before that date is irrelevant. Further, to regard section 159E(7) as not sufficiently clear so that it could be considered as not exhaustive would also be doing violence to its language.

34. It is suggested that the draftsman had made a blunder by overlooking this point and failed to make sufficient transitional provision covering past offences which come to light after the effective date. This may or may not be the case. But without knowing what exactly happened, I am not sure that this is an entirely fair criticism. Since Part XIIA was largely taken from the Criminal Law Act 1977, it would be inconceivable that the draftsman would simply have overlooked section 5(5) of the 1977 Act. Further, when he was drafting the Hong Kong provisions, the issue of making provision for the transition was clearly very much alive. After all, he saw fit to introduce the transitional provision in section 159E(7) as he did in section 159K for the offence of attempt. One possible reason for not including a provision similar to section 5(5) of the 1977 Act was that he was concerned that there might be a danger that this would contravene the Bill of Rights. This is because section 5(5) of the 1977Act has the effect of extending the new statutory offence retrospectively to certain type of conduct (e.g., conspiracy to commit an impossible crime) committed before the operative date which was not criminal before the Act came into force. It would seem that the draftsman bearing this risk in mind might have made a conscious decision not to include an equivalent of section 5(5) of the Act into the Hong Kong legislation. It might be that he had come to the considered view that the Hong Kong provisions, in particular section 159E(1), would be sufficient to catch past conduct which was criminal but which was not revealed until after the operative date.

35. Whether it was a deliberate decision or an inadvertence, the fact remains that there is no clear and express provision to cater for conspiracies committed before the effective date but falling outside section 159E(7).

Construction to be adopted

36. As I have discussed above, in the absence of a clear and express transitional provision covering criminal conduct committed before the new law came into effect (assuming that this is the result of a conscious decision), section 159E(1) can be construed in two alternative ways. First, the offence of common law conspiracy is abolished for all intents and purposes and all conduct committed before 2 August 1996 can no longer be prosecuted. Second, the offence is abolished only insofar as conduct committed after 2 August 1996 is concerned but conduct committed before that date can still be prosecuted. It may be said that neither construction is satisfactory: the first one not giving effect to the intention of the legislature and the second one not doing full justice to the language of the provisions. Which construction should be given by the court in order to give effect to the intention of the legislature?

37. Section 19 of the Interpretation and General Clauses Ordinance requires that an ordinance should receive a fair and large and liberal construction and interpretation as will best ensure the attainment of the object of the ordinance according to its true intent, meaning and spirit. Devlin LJ in Gladstone v Bower [1960] QB 384 said at 395:

"The court would always like to allow the intention of a statute to override the defects in its wording, but its ability to do so is limited by the recognised canons of interpretation. The court may, for example, prefer an alternative construction which is less well fitted to the words but better fitted to the intention of the Act."

38. Mason and Wilson JJ in Cooper Brookes (Wollongong PTY Ltd v Federal Commissioner of Taxation (1980) 147 CLR 297 at 320 took a similar view:

"But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute."

39. In the circumstances of this case, I have no doubt that the second alternative fits the intention of the legislature better and would best ensure the attainment of the object of the legislation and avoid a most undesirable result.

40. Having read the judgment of Mr Justice Bokhary PJ in draft, I would accept for the present purpose that it was due to the inadvertence of the draftsman that there is no clear and express transitional provision to cater for pre-abolition offences. If that is the case, counsel for the prosecution invites us to apply a rectifying construction to section 159E and give effect to the legislative intention in order to avoid an absurd result. Counsel for the appellants argues that any attempt by the court to remedy a defective provision would amount to judicial legislation which is most undesirable.

41. Some of the earlier authorities suggested that it is the duty of judges "to give fair and full effect to Acts of Parliament without regard to the particular consequence in the special case" (Sir Gerge Jessel MR in Attorney General v Noyes (1881) 8 QBD 125); that judges "cannot aid the Legislature's defective phrasing of the Act" or "add, and mend, and, by construction, make up deficiencies which are left there" (Lord Brougham in Crawford v Spooner (1846) 6 Moo PCC 1, 9); and that this would obscure the constitutional limits of the separation of powers.

42. In more recent cases, the courts have shown a willingness to move away from the strict and literal approach to statutory construction where a piece of legislation manifestly fails to achieve the intention of the legislature due to the inadvertence, errors or incorrect understanding on the part of the draftsman. As Lord Hobhouse said in Salmon v. Duncombe and others (1886) 11 AC 627, 634 :

"It is, however, a very serious matter to hold that when the main object of the statute is clear, it shall be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law."

In Bennion on Statutory Interpretation, 3rd ed. Section 287 at p.675, the learned author says:

"It is presumed that the legislator intends the court to apply a construction which rectifies any error in the drafting of the enactment, where it is required to give effect to the legislator's intention. This may be referred to as a rectifying construction."

This was approved by the Court of Appeal in R v. Moore [1995] 4 AER 843, 850. Lord Denning MR went further in Nothman v. Barnet London Borough Council [1978] 1 WLR 220, at 228:

"Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it - by reading words in, if necessary - so as to do what Parliament would have done, had they had the situation in mind."

43. Such an approach is not without difficulty and inherent risks: what precisely was the intention of the legislature? Under what circumstances should the courts take it upon themselves to "rectify" errors of the draftsman? How far could and should they go?

44. In Inco Europe & others v. First Choice Distribution & others, [2000] 1 WLR 586, at p.592, Lord Nicholls provided some guidance as to when such a remedial construction may be justified:

" Before interpreting a statute in this way, the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed;

The alteration in language may be too far-reaching. ... the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation."

45. The intention of the legislature when the Crimes (Amendment) Ordinance 1996 was enacted was quite clear. It was never intended to give a general pardon to offenders who had committed common law conspiracies before the law was changed. No clear and express transitional provision has been enacted to deal with such offenders. If section 159E has failed to give effect to the true legislative intention as a result of the inadvertence of the draftsman, what has been omitted would be a provision to the effect that conduct committed before the effective date which amounted to a conspiracy at common law would continue to be punishable after the effective date. Although this is a penal statute, no injustice would be done to such offenders if they are permitted to be prosecuted now for the criminal conduct which they had committed and for which they would have been rightly held liable if they had been discovered and charged before 2 August 1996. On the other hand, it would be a grave injustice to allow such offenders to escape the criminal justice system. It is doubtful whether an amendment now to section 159(7) would have the desired effect of rectifying the position in view of the provision in the Bill of Rights against retrospective incrimination. In these circumstances, it is, in my view, not too far-reaching to adopt a remedial construction in the interpretation of section 159E. This is amply justified in the present case in order to correct the errors of the draftsman and give effect to the intention of the legislature.

Conclusion

46. For these reasons, I take the view that the answer to the certified question must be in the negative. I would therefore dismiss the appeal.

Mr Justice Ribeiro PJ :

47. For the alternative reasons set out in the judgments delivered by Mr Justice Bokhary PJ and Mr Justice Chan PJ and by Sir Alan Huggins NPJ, I agree that this appeal must be dismissed.

Sir Alan Huggins NPJ :

48. I agree that this appeal must be dismissed but will add a word on the construction of sub-s.(1 ) of s.159E of the Crimes Ordinance.

49. That sub-section reads:

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

50. Abolition must, in the absence of any provision to the contrary, have taken effect on the day that the Crimes Ordinance came into effect. The question we have to decide is what was the effect of abolition. It is contended by the Appellants that the effect was that the offence of conspiracy at Common Law ceased to exist for all purposes, so that no proceedings in relation to such an offence could be commenced or continued after 2nd August 1996, whilst the Respondent has argued that in the absence of the transitional provisions in sub-s. (7) the simultaneous promulgation of the statutory offence and the abolition of the common law offence (with no provision to make the abolition retrospective) "would mean that those offences committed whilst the common law offence was in force would have remained liable for prosecution, as the common law offence, after the enactment of the statutory offence". In other words the Respondent submits that common law conspiracy was abolished in the sense that it was an offence which could no longer be committed after the coming into force of the Ordinance.

51. It is true that s.159K(1 ) of the same Ordinance, which abolished the offence of criminal attempt, made it clear that that offence "is abolished for all purposes not relating to acts done before the commencement of this Part", and similar language could have been used in s.159E(1). Nevertheless, had the draftsman intended so unlikely a result as that contended for by the Appellants it was to be expected that he would have used very clear language and not left his intention to be implied. The meaning of "abolished" contended for by the Respondent is a perfectly natural meaning and it should, if possible, be adopted as being that most likely to have been intended in the context. Abolition and repeal are not to be treated as synonymous. Cases such as Kay v Goodwin (1830) 6 Bing. 576 are distinguishable on the facts.

52. The question then remains whether the enactment of the "transitional provisions" makes such an interpretation impossible. It is said that para.(a) to sub-s.(7) by expressly preserving "any proceedings commenced before the time when this Part comes into operation" necessarily excludes proceedings commenced after that time and therefore does make the Respondent's interpretation impossible. For the reasons given by Mr Justice Chan, P.J. I do not think that argument can prevail. Whatever the reasons why the draftsman thought it necessary or desirable to include transitional provisions I cannot believe that it was intended to render unpunishable criminal conspiracies which had been committed before the coming into force of the Ordinance when such conspiracies committed subsequently remain punishable, albeit as a statutory offence. I do not shrink from accepting that the effect of the Respondent's interpretation is in fact to render transitional provisions otiose.

53. In my view the Court of Appeal came to the right conclusion, but the passage in its judgment which said :-

"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."

must be read in its context of a case where the abolishing statute simultaneously provides that similar conduct shall continue to be punishable under that or another statute.

Lord Nicholls of Birkenhead NPJ :

54. I agree with the judgments delivered by Mr Justice Bokhary PJ, Mr Justice Chan PJ and Sir Alan Huggins NPJ.

Mr Justice Bokhary PJ

55. The Court unanimously dismisses this appeal.

Representation:

Mr G.J.X. McCoy SC and Mr Phillip Ross (instructed by the Legal Aid Department) for the appellants

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