Chan Siu-ming and Others v. The Queen

CACC000558/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 558 OF 1970

-----------------

Coram: Full Court (Rigby, C.J., Mills-Owens & Huggins, JJ.)

Date of Judgment: 23 April 1971

-----------------

JUDGMENT

-----------------

Rigby, C.J. :

The statement of offence charged in this case was: Conspiracy to effect a public mischief. The proposition, the correct solution of which had caused me considerable doubt from the outset, was whether the particulars of the charge as laid, and the facts as established, constituted the offence of conspiracy to effect a public mischief. It was for this reason that I referred the matter to the Full Court when the appeal first came before me as a single judge on an appeal from the decision of a magistrate. I have now had the advantage of reading the lengthy and careful judgments of my fellow members of this Court. Both of them, for reasons which are very fully stated, concur in the view that there is no specific offence of "conspiracy and the additional words "to effect a public mischief" may be regarded as mere surplusage. If that be the correct view - and I do not dissent from that view whatever my own doubts may be - then when one looks at the particulars of the offence and the overt acts that the appellants were alleged to have committed, it would seem clear that what in fact was alleged against the appellants was not a conspiracy to effect a public mischief but a conspiracy to effect a private mischief.

2. It is clear law - and my brother judges in this appeal have referred to the authorities in considerable detail - that an agreement between two or more persons entered into consciously and deliberately for the purpose of seeking to damage another person in his profession, trade or calling, can be charged as a criminal conspiracy. When one looks at the overt acts charged - and they are set out in the judgment of my brother, Huggins, J. - and accepted by the magistrate as proved, and when one appreciates that this was the concerted conduct and behaviour of the appellants over a period of several days whilst they were at the ballroom of the complainant, the inference, in my view, is irresistible that such conduct and behaviour was jointly directed and deliberately and maliciously intended to prejudice the complainant in the conduct and management of his ballroom to the detriment of his trade or business.

3. I would, accordingly, agree that this appeal should be dismissed.

Representation:

Goodbody (D'Almada Remedios & Co.) assigned for Appellant.

Sceats, S.C.C. for Crown/Respondent.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 558 OF 1970.

-----------------

-----------------

Coram: Full Court (Rigby, C.J., Mills-Owens & Huggins, JJ.)

Date of Judgment: 23 April 1971

-----------------

JUDGMENT

-----------------

Mills-Owens J.: Crown counsel sought to maintain the convictions on the grounds that if the conduct of the appellants did not fall into the category of a conspiracy to effect a public mischief, nevertheless the overt acts alleged and proved were sufficient to support the finding of a conspiracy to injure the proprietor of the ballroom in his business; alternatively a conspiracy to commit a breach of the peace. Thus, counsel contended, the averment of a public mischief might be ignored.

2. I would agree that it is not of the essence of a charge of conspiracy that it be labelled as falling into one category or another. "It matters little what label is given to the offending act" (per Viscount Simonds in Shaw v. D.P.P. ((1961) 2 All E.R. 446 at 452); "... the decision of the present case and other similar cases does not depend on the label which is to be attached to a particular conspiracy" (per Lord Tucker, at p.463). In the Court of Criminal Appeal of Northern Ireland it has been held that an indictment for an attempt to pervert justice is not bad for being charged as a public mischief (Bailey (1956 N.I. 15).

3. In the case of Shaw v. D.P.P. both Lord Reid and Lord Tucker referred, with approval, to the classification of conspiracy into various forms given in Kenny's Outlines of Criminal Law -

"The term 'unlawful' is here used in a sense which is unique; and, unhappily, it has never yet been defined precisely. The purposes which it comprises appear to be of the following species.

Crown counsel relies on the instance given in class (iv) of a conspiracy to hiss a play unfairly, the authority for which was claimed to be Gregory v. Duke of Brunswick ((1843) 6 Man. & Gr. 205). But that was a civil action and the matter of criminality arose only in the arguments. There is no modern instance of such a charge. There are, however, dicta which would tend to support a charge of criminal conspiracy for conduct which might be said to be analogous. Thus Lord Campbell is reported as saying in Parliament in 1859: "If two men agree to blow their noses together during Divine Service so as to disturb the congregation, they may be indicted for conspiracy" (Hansard, 1st March 1859), but disturbing Divine Service was a statutory offence (52 Geo. 3, c.155, sec. 12). In the case of Mogul S.S. Co. Ltd. v. McGregor Gow & Co. in the House of Lords ((1892) A.C. 25) Lord Halsbury referred to "a combination to insult and annoy", and said, at p.38: "I should have thought it as beyond doubt or question that such a combination would be an indictable misdemeanour". But in the same case, at p.48, Lord Bramwell introduced the qualification that a combination to violate a private right was a criminal conspiracy "where the public has a sufficient interest in it".

4. Undoubtedly, in the 18th and early 19th centuries combinations to molest or impoverish an individual or to prevent him from carrying on his business were held to be criminal conspiracies at common law, but the law as to this was largely built up on the doctrine of 'restraint of trade'; all combinations in restraint of trade were regarded as criminal (vide Harrison on the Law of Conspiracy, pp.36-7). Efforts to maintain the common law conspiracy of 'molesting' continued in the field of trade disputes notwithstanding legislation directed towards enabling employers and workmen to combine in the case of genuine trade disputes (see R. v. Druitt ((1867) 10 Cox 592) and R. v. Bunn ((1872) 12 Cox 316)). The dicta in those cases were expressly disapproved by a court of five judges presided over by Lord Coleridge C.J. in Gibson v. Lawson ((1891) 2 Q.B. 545, at p.560). In Curran v. Treleaven the same court, at p.563 of the same report, said -

"(The Recorder) cites in support of his view some phrases from the judgments of the Lords Justices in the case of the Mogul Steamship Co. v. McGregor and others (1) . But with deference, he has some what misapprehended the point of these observations. It is true that where the object is injury, if the injury is effected, an action will lie for the malicious conspiracy which has effected it; and, therefore, it may be that such a conspiracy, if it could be proved in fact, would be indictable. But it was pointed out in some detail by the Court of first instance, that where the object is to benefit oneself, it can seldom, perhaps it can never, be effected without some consequent loss or injury to someone else. In trade, in commerce, even in a profession, what is one man's gain is another's loss; and where the object is not malicious, the mere fact that the effect is injurious does not make the agreement either illegal or actionable, and, therefore, it is not indictable. The Recorder finds that there were no malice in fact, and this finding is inconsistent with the conclusion that the agreement was either criminal or unlawful."

Lord Field, in his judgment in the Mogul case, (at p.52) said that in all the cases in which agreements to do acts injurious to others have been held indictable as conspiracies "it will be found that there existed either an ultimate object of malice, or wrong, or wrongful means of execution involving elements of injury to the public, or, at least, negativing the pursuit of a lawful object".

5. In the case before us, the question must then arise whether there was malice in fact.

6. So far as trade disputes are concerned the next step was the setting up of a Royal Commission, following whose report the Conspiracy and Protection of Property Act 1875 was passed. Section 3 of the Act rendered lawful combinations in the field of trade disputes, and freed the law of criminal conspiracy from doubt in that field. Section 7 was general in its terms and the corresponding enactment in the Hong Kong legislation is sec. 27 of the Public Order Ordinance (Cap. 245) which section was repealed and replaced by Ordinance No. 31 of 1970, no doubt because the original section 27 is repeated in the same terms in section 47 of the Trade Union Registration Ordinance (Cap.332). Section 48 of the latter Ordinance is, generally, in the same terms as section 3 of the Act of 1875. Section 27 of Cap. 245 now reads -

"27. (1) Any person who, without lawful authority or reasonable excuse, does or says anything, or behaves in a manner, or utters or distributes any publication, which is likely to make some other person apprehensive as to what may happen -

Section 13 reads:-

Presumably the conduct of the appellants in the present case was considered not to fall within any of these provisions. It might, perhaps, be suggested that these provisions have superseded the common law with regard to combinations to molest or annoy or to injure a person in his trade or business (otherwise than in the course of trade disputes). The Ordinance, however, is expressed to be an Ordinance to amend and consolidate the law, and, on principle, it would appear that it may not be taken to have that suggested effect (of. R. v. Barnett (1951) 2 K.B. 425). Accordingly it is necessary to enquire further to what extent the law of criminal conspiracy applies to combinations other than in contemplation or furtherance of trade disputes.

7. In R. v. Jones ((1832) 4 B. & Ad. 345) Lord Denman defined a conspiracy as a combination "either to do an unlawful act or a lawful act by unlawful means"; to the same effect is the definition given by Tindal C.J. in O'Connell v. R. ((1844) 11 Cl. & F. 155) The definition has been cited in many cases, including in the Court of Appeal in the Mogul case ((1889) 23 Q.B.D. 598) by Bowen L.J. at p.616, where, however the learned Lord Justice said that that it was 'necessary to be very careful not to press the doctrine of illegal conspiracy beyond that which is necessary for the protection of individuals or the public'. But, as it has been observed, the definition does not state whether "unlawful", whether in the ultimate aim or the means used, is used in the sense of criminal or includes tortious conduct. In R. v. King ((1844) 7 Q.B. 782), Lord Denman himself doubted his own definition. The often-quoted definition of Willes J. in Muleahy v. R. ((1868) L.R. 3 A.L. 300 refers expressly to agreements "punishable if for a criminal object or for the use of criminal means", which definition was accepted by the House of Lords in that case, and in subsequent cases (per Lord Cairns at p.374; in Quinn v. Leathem (supra) per Lord Brampton at p.529; and in R. v. Brailsford ((1905) 2 K.B. 730 at 746). This definition is not wide enough to include, e.g., a conspiracy to defraud by non-criminous means. In R. v. Parnell ((1881) 14 Cox 505) Fitzgerald J. included the case "where the object is to do injury to a third party or to a class, though if that injury were effected by a single individual it would be a civil wrong but not a crime"; to the same effect is the definition given by Cockburn C.J. in R. v. Warburton ((1870) L.R. 1 C.C. 274). The Royal Commission of 1874 presided over by Cockburn C.J. reported that -

"Conspiracy may be divided into three classes. First, where the end to be accomplished would be a crime in each of the conspiring parties, a class which offers no difficulty. Secondly, where the purpose of the conspiracy is lawful, but the means to be resorted to are criminal. The third and last case is where, with a malicious design to do an injury, the purpose is to effect a wrong, though not such a wrong as when perpetrated by an individual would amount to an offence under the criminal law."

"Wrong" was, apparently, intended to mean a civil wrong, so that, in the opinion of the Commission, it is a criminal conspiracy to combine to commit a tort to the injury of a third person where the design is maliciously to injure him. "Malicious" in the area of tort means with an improper motive, such as spite or ill-will, or as Lord Summer put it, in Sorrell v. Smith ((1925) A.C. 700, at p.731) with 'malevolence'. Although, therefore, as it is often said, the agreement or combination is the gist of the offence, "mere concert in itself is not a crime" (per Serjeant Talfourd in his edition of Dickinson's Guide to the quarter Sessions); it is necessary to prove an agreement of a certain character. On the other hand, as it is suggested in the present case, the agreement may be inferred from conduct (see R. v. Hunt ((1820) ...(illegible) St. Tr. (N.S.) 171;) R. v. Parsons ((1762) 1 Win. B1. 391); R. v. Brisac ((1803) 4 East 164); R. v. Murphy ((1837) 8 C. & P. 297); and R. v. Parnell (supra)) - provided that such inference may be drawn beyond a reasonable doubt.

8. As it has been pointed out, a difficulty which arises from definitions which imply that it is a criminal conspiracy to combine to commit a tort is that many such cases are concerned with conspiracy to defraud. It is clear that a conspiracy to damage a person in his legal rights by almost any degree of fraud or deceit will constitute a criminal conspiracy (vide Harrison, p.86). Where the object is to defraud the public no doubt such a conspiracy may be framed as 'to effect a public mischief; there are a number of modern instances. Turning to combinations to commit a tort not involving fraud or deceit, the position is confusing. On the one hand, there are the sweeping dicta, referred to earlier, to the effect, prima facie, that combination to commit any tort is a criminal conspiracy. So also, but dubicusly, is the statement of Erle J. in R. v. Duffield ((1851) 5 Cox 404): "A conspiracy to injure a man in his private property; a conspiracy to prevent all customers coming to his shop - what is that but a civil injury? A conspiracy to injure - two men combining to interfere with a man's civil right - is indictable."

9. In the more recent case of R. v. Whittaker ((1914) 10 Cr. App.R. 245) A.T. Lawrence J. proposed a more limited definition, when he said: "It is sufficient that the agreement should be to do any act unlawful or wrongful in the sense of being a tort on another person, at any rate where there is fraud or corruption involved." Harrison, writing in 1924, says: "It is conceived, therefore, that there is no reliable authority for saying that a conspiracy to commit a tort is criminal, except where a fraud is involved ....... or a "malicious" tort, or one causing a public mischief." In the case of Bramley ((1946) 11 J. Cr. L. 36) five persons were charged with conspiracy to trespass and to commit forcible entries, and also with forcible entry itself, contrary to the Statute of Forcible Entry, 1381. Stable J. ruled that a conspiracy to deprive a person of his legal rights was criminal if having regard to the numbers involved, the methods adopted, and the magnitude of the common aim, the jury considered that the matter far transcended the sphere of civil law and passed into that sphere where it became a matter of public concern of citizens interested in the maintenance of good order and security. Professor Glanville Williams, in his 'Criminal Law', at p.699, comments on this case as follows:

"On this direction, which seemed to allow the jury to turn tort into crime, the jury found the accused guilty on all counts. No appeal was taken, perhaps because the conviction was clearly correct on the point of forcible entry; and in the absence of an appellate pronouncement it cannot be said with confidence that Stable J.'s ruling represents the law."

In Shaw v. D.P.P. (supra) Lord Reid, at p.456, said:

"To commit a tort - yes in certain cases, but for somewhat similar reasons it seems to be at least doubtful whether it is an offence to conspire to commit a tort which is neither malicious nor fraudulent nor accompanied by violence. Then there is undoubtedly a third class of act which an individual can do with impunity but a combination cannot. Perhaps the best known example is conspiring to injure a man in his trade if done without justification. I need only refer to the series of cases in this House from Mogul S.S. Co. v. McGregor, Gow & Co. (12) to Crofter Hand Woven Harris Tweed Co., Ltd. v. Veitch (13). No one has ever attempted to define what makes an act 'unlawful' so as to bring it within this class, the law seems to be haphazard depending largely on historical accident. Perhaps as good a summary as any is that which goes back to early editions of Professor Kenny's book (now s.451):

"..... certain other acts ..... which ...... are not breaches of law at all, but which nevertheless are outrageously immoral or else are, in some way, extremely injurious to the public.""

This appears to put the class of conspiracy to injure a person in his trade into the category of public mischief, consequently requiring extreme injury to the public if it is to be criminal; on the other hand, it recognises the category of malicious tort. To the same effect is the statement of Lord Tucker at p.462:

"The difficulty with regard to this third class of conspiracy has always been to define its limits or give it a label which will include all its manifestations. It was referred to by Viscount Simon, L.C., in Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch as one in which 'the purpose aimed at, though not perhaps specifically illegal, was one which would undermine principles of commercial or moral conduct". The late Professor Kenny in his Outlines of Criminal Law (11th Edn.) at p.290, in a passage which is repeated in later editions, wrote:

'An unlawful purpose. The term "unlawful" is here used in a sense which is unique; and, unhappily, has never yet been defined precisely. The purposes which it comprises appear to be of the following species: .... (iv) Agreements to do certain other acts, which (unlike all those hitherto mentioned) are not breaches of law at all, but which nevertheless are outrageously immoral or else are, in some way, extremely injurious to the public.'"

At p.698 of his book Professor Glanville Williams comments, and I would accept it, as follows:-

"Even if the tort doctrine of conspiracy to injure has any place in the criminal law, it must be subject to the limitation, established in the law of tort, that what is done bona fide in the use of a man's own property, or in the exercise of a man's own trade, is not wrongful."

At p. 697 he refers to the case of Levy (supra):

"where persons were ruled guilty of conspiracy who had banded together to make great noises and to knock violently against the wall of a house in which the prosecutrix lay, when she was giving birth to a child. It is not easy to collect the effect of this decision, which is not of high authority, and there may be thought to be a danger in admitting that any agreement to commit a malicious tort is a criminal conspiracy. There is in fact a much narrower way of supporting the decision in Levy than the doctrine of malicious tort, namely, that the conspiracy in that case was to insult and annoy."

Harrison, dealing with the theatrical cases, at pp.118-120, says:-

"We come next to the theatrical cases (supra, p.30), which have so frequently been cited by those who hold wide views as to the scope of the offence of conspiracy, both in its criminal and civil aspect, R. v. Leigh (1775) 1 C. & K. 28 n; 2 Camp. 372 n, was a case of conspiracy by hissing and riot to prevent the actor Macklin from performing, and the defendants were convicted, but no judgment was passed, the matter being settled. It is clear that this case falls within the "seventeenth century rule" that combination to commit a crime is indictable, since one of the means to be employed was the causing of a riot. ............... Clifford v. Brandon (1809) 2 Camp. 358, was an action for assault and false imprisonment against a servant for arresting a man for alleged riot. Here the point at issue was the fact of the riot, and when the jury had given their verdict for the plaintiff, on the ground that the arrest was illegal, the foreman explained that some of the jury proceeded on the ground that the riot was over at the time of the arrest, others on the ground that plaintiff did not instigate the riot. The question of conspiracy does not appear to enter into the case at all, ........ The well known case of Gregory v. The Duke of Brunswick (1843) 1 C. & K. 24; 6 M. & G. 205, was a civil action, and nothing appears to have been suggested by the Court as to the criminality of the combination. Yet it is often quoted as an authority for the proposition that a combination to hiss an actor off the stage is criminal (see p.31, supra, also Giblan v. National Amalgamated Labourers' Union &c. [1903] 2 K.B. 600, where Stirling, L.J., said of this case: "It was there held that a conspiracy to hiss an actor off the stage and so injure him in his trade or calling was illegal, and that acts done in pursuance of such a conspiracy were not excused by showing that the actor was an unfit person to appear before the public"). It seems impossible to argue that the case is an authority for the criminality of a conspiracy to injure except by assuming that it decided that such a conspiracy gives rise to an action for damages (a point which will be considered in the next chapter), and that if a conspiracy is a civil wrong it must therefore be also a criminal offence."

At pp.146-8, Harrison suggests a classification of criminal conspiracies; his class (6) is as follows:-

10. I would refer also to the speech of Lord Diplock giving the judgment of the House of Lords in the case of Reg. v. Bhagwan ((1970) 3 W.L.R. 501) where he said, at p.509 -

"My Lords, the disposition of the instant appeal does not, in my opinion, call for a general survey of the current role of criminal conspiracy in the common law. The least systematic, the most irrational branch of English penal law, it still rests upon the legal fiction that the offence lies not in the overt acts themselves which are injurious to the common weal but in an inferred anterior agreement to commit them. Your Lordships should not be zealous to use this legal fiction to create new offences of acts not previously recognised as criminal at common law which Parliament itself in intervening to change the common law has not expressly penalised."

11. In this state of the law, as it appears to me, the only basis upon which the convictions of the appellants in the present case might, possibly, be upheld as a matter of law is that they combined to commit a malicious tort by acting in a noisy and disorderly manner, intending thereby to injure the ball-room business, or to annoy and molest the management and attendants, doing so "maliciously", that is to say not for the protection or furtherance of their own rights - as, for example, with the intention of asserting their right, equally with other persons wishing to resort to the ball-room, to attend there notwithstanding that, possibly because they are not wealthy persons, they were not particularly welcomed by the management - but acting simply out of spite, ill-will or malevolence. As has been remarked earlier, there is no modern instance of such a charge, for the good reason no doubt that is such a case the common-sense remedy is to eject the persons guilty of disorderly behaviour, having the police standing by if necessary to prevent a breach of the peace. I am reluctant to give any countenance to the proposition that such circumstances as these give rise to a prosecution for criminal conspiracy. On the other hand I cannot avoid the conclusion that technically such a prosecution lies, if malice can be proved. The question remains whether the findings of the magistrate justified the convictions. He did not expressly advert to the element of malice, nor expressly advert to the object or purpose which the appellants may have had in their own minds. Whether or not there is malice, as it is defined in this area, must be tested subjectively, not objectively, I have no doubt. But it may be inferred, as any other matter of intention may be inferred, provided the inference admits of no reasonable doubt. In the circumstances of the present case I am bound to agree that the only proper inference to be drawn was that the appellants acted maliciously, and accordingly to concur in the appeal being dismissed.

Representation:

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.558 OF 1970

-----------------

-----------------

Coram: Rigby, C.J., Mills-Owens and Huggins, JJ.

Date of Judgment: 23 April 1971

-----------------

JUDGMENT

-----------------

Huggins, J.: This case was referred to this court by order of the single judge. The question on the appeal is whether the particulars of the charge laid before the magistrate, which particulars he found to have been proved, disclosed the offence charged.

1. The charge was as follows:

Although there is normally no need to set out the overt acts alleged, the draftsman proceeded to state the overt acts:

"Overt acts by the defendants and other persons unknown acting in concert

in return for a promise of future good behaviour."

(At the trial counsel for the Crown indicated that he did not rely on the words "as and when demanded" in para.(5) ). It will be seen that these so-called overt "acts" include something more than a statement of acts and in some of the paragraphs there is alleged the intent with which the acts were done.

2. The argument on behalf of the appellants may be briefly summarised as a contention that although on the findings of the learned magistrate, which are not challenged, the appellants were guilty of a criminal conspiracy they were not guilty of a conspiracy to cause a public mischief. The findings were that the appellants committed the overt acts particularised in paras. (1), (2), (4) and (5) in pursuance of a concerted plan.

3. I think any difficulty in the case stems from the attempts which have been made over the years to categorise criminal conspiracies. Thus we find in the Indictment Rules, a form of indictment for "conspiracy to defraud". In my view there is no crime known to the law as "conspiracy to defraud", any more than there is a crime of "theft from a motor vehicle" or "murder in a cathedral": the crime is conspiracy and should be charged as such or, as I would prefer to call it, as "unlawful conspiracy". That is not to say the particulars must not disclose one of those kinds of agreement which the Common Law recognizes as criminal but merely that no useful purpose is served by trying to categorise the unlawful conspiracy in the statement of offence in an indictment or charge. Equally, as it seems to me, there is no separate crime of "conspiracy to effect a public mischief" and any offence which may properly be described as such ought to be charged simply as "unlawful conspiracy". I am not unaware that in Reg. v. Newland⁽¹⁾, in a passage which was relied upon by Lord Tucker in the House of Lords in Shaw v. Director of Public Prosecutions⁽²⁾, Lord Goddard said "it is much too late to object that a conspiracy to effect a public mischief is an offence unknown to the law. There have been at least three reported cases during the present century in which that charge has been made and convictions upheld". The Lord Chief Justice went on to name the three cases, but a perusal of the reports does not show that in any of these cases the offence was described in the indictment as "conspiracy to effect a public mischief": rather do they suggest that the offence was simply "conspiracy". Nor do I believe that the Lord Chief Justice ever intended to lay down that there was a separate and distinct offence of conspiracy to effect a public mischief. Lord Reid, in his powerful dissenting judgment in Shaw v. Director of Public Prosecutions, expressed his clear opinion that "there is no such general offence known to the law as conspiracy to corrupt public morals" although he conceded that a conspiracy "to say or do or exhibit anything in public which outrages public decency, whether or not it also tends to corrupt and deprave those who see or hear it" is indictable. I find nothing in the speeches of the other learned judges which justifies the conclusion that conspiracy to corrupt public morals is a separate and distinct offence from conspiracy: the argument in the House was not a purely semantic one but was concerned to ascertain whether a conspiracy to do something tending to corrupt public morals was indictable as a conspiracy and it was fortuitous that the indictment in that case described the offence as "conspiracy to corrupt public morals". Can it seriously be supposed that a different conclusion would have been reached if the indictment had been for conspiracy simpliciter? It may be convenient to label to conspiracies for the purposes of argument but one must not allow the labels to hide the fact that the offence is always unlawful conspiracy. Lord Tucker himself warned against attaching too much weight to such labels when he said at p.463:

"...... the decision of the present and other similar cases does not depend on the label which is to be attached to a particular conspiracy. Can it be doubted that a conspiracy to corrupt public morals is a conspiracy to effect a public mischief?"

4. It must, however, be recognised that the attempts to categorise conspiracies have not been an idle, academic exercise but have had the object of introducing into this branch of the criminal law a degree of certainty which the crime of unlawful conspiracy by its very nature lacks. A crime which can be used to punish such a wide variety of conduct that charges of it might be used by an unscrupulous Government to overcome any kind of opposition and to work oppression is inevitably unpopular and the courts have been jealous to ensure that the wide limits of the crime have not led to abuse.

5. It is necessary first to inquire why unlawful conspiracy ever came to be recognised as a crime and what categories of agreement have been held to be criminal conspiracies. It is, of course, trite law that it is the agreement itself which constitutes the crime of unlawful conspiracy. If some kinds of agreement are performed, damage to the public is certain and the State therefore steps in, before anything has been done in pursuance of the agreement, and punishes the contracting parties for having threatened the common good. It is the certainty of damage to the public that justifies action at a time when no step has been taken in pursuance of the agreement and when, consequently, no question can arise of prosecuting for an attempt even though the object of the agreement is the commission of a crime.

6. When we come to consider the categories of unlawful conspiracies we see that no consistent method of division has found favour. A convenient starting point is the report of the Royal Commission presided over by Lord Chief Justice Cockburn, part of whose report is cited in Reg. v. Parnell⁽³⁾. There three categories are mentioned:

"... first, where the end to be accomplished would be a crime in each of the conspiring parties, a class which offers no difficulty. Secondly, where the purpose of the conspiracy is lawful, but the means to be resorted to are criminal as where the conspiracy is to support a cause believed to be just by perjured evidence. Here the proximate or immediate intention of the parties being to commit a crime, the conspiracy is to do something criminal, and here again the case is consequently free from difficulty. The third and last case is where with a malicious design to do an injury, the purpose is to effect a wrong, though not such a wrong as when perpetrated by a single individual, would amount to an offence under the criminal law. Thus an attempt to destroy a man's credit, and effect his ruin by spreading reports of his insolvency would be a wrong act which would entitle the party whose credit was thus attacked to bring an action as for a civil wrong, but it would not be an indictable offence."

Lord Tucker in Shaw v. Director of Public Prosecutions⁽⁴⁾ indicates that some conspiracies within the third category may be indictable:

"It has for long been accepted that there are some conspiracies which are criminal although the acts agreed to be done are not per se criminal or tortious if done by individuals. Such conspiracies form a ... class in addition to the well-known and more clearly defined conspiracies to do acts which are unlawful, in the sense of criminal or tortious, or to do lawful acts by unlawful means."

What are the limits of the acts properly comprehended within the third category it is not necessary to decide for the purpose of this case, but I agree with Mr. Justice Mills-Owens that to bring a conspiracy to commit a tort within the ambit of the criminal law it must be malicious, in the sense that it is malevolent. The original writ of conspiracy was of very narrow application and our present tort of conspiracy developed from a form of trespass upon the case: it is more accurately described as a trespass in the nature of a conspiracy. As a result the tort has certain features which are not found in relation to indictments for conspiracy: see Skinner v. Gunton⁽⁵⁾. Nevertheless there are dicta in some of the civil cases which may be of assistance to us. Thus in Mogul Steamship Company Ltd. v. McGregor, Gow & Co.⁽⁶⁾ Lord Justice Bowen said at p.616:

"Of the general proposition, that certain kinds of conduct not criminal in any one individual may become criminal if done by combination among several, there can be no doubt. The distinction is based on sound reason, for a combination may make oppressive or dangerous that which if it proceeded only from a single person would be otherwise, and the very fact of the combination may shew that the object is simply to do harm, and not to exercise one's own just rights. In the application of this undoubted principle it is necessary to be very careful not to press the doctrine of illegal conspiracy beyond that which is necessary for the protection of individuals or of the public; and it may be observed in passing that as a rule it is the damage wrongfully done, and not the conspiracy, that is the gist of actions on the case for conspiracy."

The learned Lord Justice then defined an illegal combination as an agreement by one or more to do an unlawful act or to do a lawful act by unlawful means. He went on:

"The unlawful act agreed to, if any, between the defendants must have been the intentional doing of some act to the detriment of the plaintiffs' business without just cause or excuse. Whether there was any such justification or excuse for the defendants is the old question over again, which, so far as regards an individual trader, has been already solved" (that is to say, whether the defendants were merely exercising their own legal rights in the mode and manner that best suited them and which they thought best calculated to secure their own advantage or whether they were merely acting maliciously with intent to do the plaintiff wrongful harm.)

As to the question whether the means adopted were unlawful the learned Lord Justice said:

"Whether such means were unlawful is in like manner nothing but the old discussion which I have gone through, and which is now revived under a second head of inquiry .......... The truth is, that the combination of capital for purposes of trade and competition is a very different thing from such a combination of several persons against one, with a view to harm him, as falls under the head of an indictable conspiracy. There is no just cause or excuse in the latter class of cases. There is such a just cause or excuse in the former."

7. One thing must be axiomatic and that is that not every conspiracy in the categories described can properly be described as a conspiracy to effect a public mischief: if it could, there would never have been any point in using that label at all, for conspiracy and conspiracy to effect a public mischief would be synonymous. There can be no doubt that any conspiracy to commit a crime or to do a lawful act by criminal means (i.e. one in our first two categories) necessarily involves an intent to effect a public mischief and if the other category also necessarily involves the same intent what distinction does the label indicate? In contrast to conspiracies in the first category it seems to me that many in the third category, being conspiracies to commit torts, are necessarily aimed at harming private interests rather than public, while that category also includes agreements to do some acts which, apart from the combination, would not be contrary to law, for example an agreement to facilitate the seduction of a woman (Reg. v. Howell)⁽⁷⁾ or to prevent tenants from paying their rents (Reg. v. Parnell)⁽³⁾. Some conspiracies within the third category may, of course, be designed to harm the public rather than an individual - for example an agreement to deceive the Benchers of an Inn of Court into admitting as a student a person not qualified (R. v. Bassey)⁽⁸⁾. The conspiracies in the first two of these examples could not properly be described as conspiracies to effect a "public" mischief while that in the third example could.

8. The argument addressed to us by counsel for the Crown appears to me to transfer the epithet "public" from the mischief intended by the agreement to the mischief caused by the agreement. It is, as we have seen, the very basis of the crime of unlawful conspiracy that the agreement itself is harmful to the public and therefore one may fairly say that every criminal conspiracy is a public mischief but it does not follow that every criminal conspiracy is a conspiracy to effect a public mischief.

9. For a time there appeared to be a division of opinion among the members of the Court but it transpires that this was due not to any disagreement as to the nature of the crime of conspiracy but rather as to the findings of the learned magistrate. He said that the prosecution had proved "the overt acts 1, 2, 4 & 5 referred to in the body of the charge". I took that to mean that he found proved not only what could strictly be called "acts" but also the intents alleged in the statement of overt acts in the body of the charge. That is to say, I understood him to have found that the purpose of the agreement was "to interfere with the maintenance of good order in the Golden Fountain Ballroom ..." inter alia "by the defendants and other persons unknown acting in concert banging chairs and tables and shouting loudly and generally making excessive noise for the purpose of disrupting the business of the ballroom and annoying the staff and management thereof and discouraging other members of the public from using the said ballroom". If the learned magistrate's findings are to be construed more narrowly then we are driven to the conclusion that he did not apply his mind to the question of intent but only to the acts themselves. For my part I am prepared to hold that even if my interpretation of the findings be wrong the overt acts (using that word in its strict sense) could not have been done otherwise than with the malevolent intents alleged in the Charge Sheet; for there was no legitimate purpose to the attainment of which such acts could have been aimed. Even though the test of intent is a subjective one the failure to make an express finding as to the intent would not, in my view, be fatal.

10. On the basis that there was a finding of an intent as alleged in the Charge Sheet it has been submitted to us that this was an agreement to harm the public and, as such, was fairly described as a conspiracy to effect a public mischief. Indeed, counsel for the Crown went so far as to submit that every indictment for conspiracy could properly be an indictment to effect a public mischief. In my view the conspiracy of which particulars were given and which was proved was one to effect a private mischief and not one to effect a public mischief. There was no suggestion of any intent to cause a riot or even a breach of the peace: the object of the conspiracy was to do acts which necessarily would harm the proprietors of the ballroom in their business.

11. Is this fatal to the conviction? It is submitted by counsel for the appellants that it is, although he cannot say that the error of description in the charge misled the appellants or their advisers or that the trial could have taken any other course had the words "to effect a public mischief" been omitted from the statement of the offence and the words "to effect a public mischief to wit" been omitted from the particulars. In view of my understanding of the learned magistrate's findings I expressly put to counsel the question whether his argument involved that if the reference to a public mischief had been omitted he could not have objected to the conviction and he agreed that he could not: he also submitted that conspiracy charges should be avoided. (I certainly do not quarrel with the submission that such a charge should be avoided if an alternative, substantive charge can be laid). What was the practical effect of including the erroneous words? They did not alter the allegation as to the object of the agreement, namely harming the proprietors by interfering with the maintenance of good order and by disrupting the business. They merely suggested that the conduct of the appellants was aimed not only at the proprietors but also at the public. The argument as it was addressed to us was this:

It follows from what I have said that I think that an intent to damage the proprietors of the dance hall by interfering with the business is precisely what the appellants were charged with and that the findings justified conviction. I am satisfied that the evidence justified the findings.

12. Although the concession made by counsel appears to me not to leave the point open it has been suggested that an agreement maliciously to injure another in his business, although tortious and therefore actionable, is not indictable. That argument would find much support in the dissenting judgment of Lord Reid in Shaw v. Director of Public Prosecutions (supra). For my part I can see no good sense in holding that on the one hand it is criminal to conspire to publish a book of the kind in question in that case and on the other hand not criminal to outrage persons in the pursuance of their livelihood by maliciously conspiring to do what the appellants have here been found to have conspired to do: it is at least as harmful to the State. One may talk of corrupting "public morals" but in truth what stand to be corrupted are the morals of individual members of the public. The public is an amorphous concept: it has no mind to judge of good and evil nor, apart from its individual members, can it have any hope of salvation. If, therefore, it is criminal to conspire maliciously to do something so outrageously immoral that it is likely to corrupt the minds of members of the public why should it not be criminal to conspire maliciously to do something designed to damage them in their bodies or estates? I believe we shall be failing in our responsibility to the Queen's subjects if we tolerate such manifestations of undisciplined ill-will as have been proved in the present case. The Common Law of England is not so confined that it cannot protect law abiding citizens against such behaviour, which is but one example of the sort of mob violence so many persons today appear to think it is their God-given right to employ in order to achieve their own ends. I am not deterred by the fact that no modern instance of such a charge as that in the present case has been brought to our notice: there have been sufficient expressions of opinion over the years to the effect that conspiracies to injure are indictable to satisfy me that we should not be breaking new ground or usurping the functions of the Legislature were we to uphold these convictions. Nor am I conscious that we should be interfering with any freedom of the Queen's subjects under the law: rather would we be upholding the freedom of the peaceful individual against the devilish contriving of the mob. In R. v. Levy⁽⁹⁾ it was held to be indictable to agree to make loud noises and to knock violently against the wall of a room in which a pregnant woman lay in order "to injure and terrify her". Is not to agree to make loud noises and knock violently on tables in order to interfere with the maintenance of good order in a restaurant entirely comparable conduct? I cannot believe that the mere failure to allege the intent to injure which was implicit in the allegation of the intent to interfere with the maintenance of good order is sufficient ground for our distinguishing the present case.

13. It is one of the unusual features of the crime of unlawful conspiracy, and one which has been the subject of much criticism, that the question whether the acts alleged were contra bonos mores if proved is one of fact for the jury (or, upon a summary trial, for the magistrate or judge). If the magistrate here did not direct his mind to that question his judgment is open to attack, but for my part on a consideration of the authorities I cannot see that if he properly directed himself he could possibly have come to any conclusion other than that the offence had been proved. Whether or not it is desirable that conspiracy should continue to be recognised as a Common Law offence (see 1 Glanville Williams's Criminal Law (2nd edition) 710 at reg.) is not a question which it is necessary for me to consider here. Suffice it to say I would respectfully adopt another passage from the Report of the Royal Commission which was cited in Reg. v. Parnell:

"If it be asked on what principle a combination of several to effect the like wrongful purpose becomes an offence, the answer is, upon the same principle that any other civil wrong, when it assumes a more aggravated and formidable character, is constituted an offence, and becomes transferred from the domain of the civil to that of the criminal law. All offences, it need hardly be observed, are either in their nature offences against the community, or are primarily offences against individuals. As regards the latter case, every offence against person or property, or other individual right involves a civil wrong, which would have entitled the person injured to civil redress were it not that owing to the aggravated nature of the wrong and the general insecurity to society which would ensue from such acts, if allowed to go unpunished, the State steps in, and merging the wrong done to the party immediately interested in the larger wrong done to the community, converts the wrong done by the infraction of individual right into a crime, and subjects the wrong doer to punishment to prevent as far as possible the recurrence of the offence. Thus the dividing line between private wrongs, as entitling the party injured to civil remedies, and private wrongs thus converted into public wrongs, in other words into offences and crimes, is to be found in the more aggravated and formidable character which the violation of individual rights under given circumstances assumes. It is upon this principle that the law of conspiracy, by which the violation of private right, which if done by one, would only be the subject of civil remedy, when done by several is constituted a crime, can be vindicated as necessary and just. It is obvious that a wrongful violation of another man's right committed by many assumes a far more formidable and offensive character than when committed by a single individual. The party assailed may be able by recourse to the ordinary civil remedies to defend himself against the attacks of one. It becomes a very different thing when he has to defend himself against many combined to do him injury."

I see no appreciable danger if the courts are left to decide when the subject matter of a conspiracy involves such a gross breach of good manners that the conspirators ought to be punished by the State. That not even every conspiracy which may prejudice the State is indictable is clear from the decision of the House of Lords in Director of Public Prosecutions v. Bhagwan⁽¹⁰⁾. There the object of the conspiracy was to defeat the objects of a statute but it was held that the freedom of the individual was paramount and that Mr. Bhagwan had done nothing which as a British subject he was not fully entitled to do. But it is otherwise with the appellants for surely no-one would contend that they had a legal right maliciously to create an uproar with intent to damage the proprietors of the ballroom in their business. Judges and juries have shown themselves well aware of changing customs and only those have anything to fear from any lack of precision in the definition of the crime who go so far beyond the limits of generally accepted behaviour that any reasonable person should at least see the possibility, if not the probability, that a jury, properly directed, might condemn them. I am content to be counted among those who hold "the distinctly minority view" (if such it be) that the Common Law relating to conspiracy, by its very lack of precision, gives to the courts an invaluable residual jurisdiction, though one to be exercised with the utmost circumspection, in upholding the good government of the realm.

14. I would dismiss the appeal.

15. There has been no appeal against sentence but I would like to say that although I would hold that as a matter of strict law a criminal offence was committed it does not necessarily follow that all conduct which thus constitutes a criminal conspiracy ought to be the subject of a prosecution. The absence of recent authority on the matters I have been considering may well be due to wise restraint on the part of those responsible for instituting prosecutions. I cannot help thinking that the removal of the appellants from the ballroom by the Police, coupled with a stern warning against repetition of such behaviour, might have been appropriate. However, I do not for a moment suggest that the sentence imposed was wrong in principle or manifestly excessive.

Representation:

Goodbody (D'Almada Remdios & Co.) assigned for all Appellants.

Sceats, S.C.C. for Respondent.

(1) (1953) 2 All E.R. 1067, 1071

(2) (1961) 2 All E.R. 446, 462.

(3) (1881) 14 Cox C.C. 508, 520.

(4) (1961) 2 W.L.R. 897

(5) 1 Wms.Saund. (5th ed.) 228

(6) (1889) 23 Q.B.D. 598

(7) (1864) 4 F. & F. 160

(3) (1881) 14 Cox C.C. 508

(8) (1931) 22 Cr. App. R. 160.

(9) (1819) 2 Stark. 458.

(10) 1970 3 W.L.R. 501.