The Queen v. Tam Man Chau

CACC000400/1989

Headnote

Charge of conspiracy which details attempt at execution is not defective in form. Participation in the conspiracy can be inferred from cvert acts which necessarily link the perpetrator to the overall plan. Inferences as to extent of participation properly left to the jury. The assessment of expert evidence is for the jury.

BETWEEN

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Coram: Hon. Kempster, Power, JJ.A. & Sears, J.

Date of Hearing: 12 January 1990

Date of Judgment: 12 January 1990

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JUDGMENT

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Power, J.A.:

1. The applicant with three others faced a charge of conspiracy to cheat at gambling contrary to Common Law and s.16(1)(a)of the Gambling Ordinance. The charge was particularized as follows:

"CHAN Wai-lim alias Bill CHAN, TAM Man-chau, CHAN Yuk-pui and WONG Yun-sang, between 20th January 1984 and 19th February 1986 in Hong Kong, conspired together and with YANG Yuan-loony, TANG Fei-wan alias Allen TANG, AU YEUNG Pak-hung alias Eddie AU YEUNG and Roderick Lindsay Staples and others not before the court to win money for themselves and the said YANG Yuan-loony, the said TANG Fei-wan alias Allen TANG the said AU YEUNG Pak-hung alias Eddie AU YEUNG, the said Roderick Lindsay Staples and these others from the Royal Hong Kong Jockey Club in connexion with the placing of bets with the said Royal Hong Kong Jockey Club on the outcome of horse racing which took place at the Happy Valley and the Shatin Racecourses between 20th January, 1984 and 19th February 1986 by a false practice namely by the said TAM Man-chau, CHAN Yuk-pui, Wong Yun-sang and Roderick Lindsay Staples, and others contriving to prevent their horses running to the best of their natural abilities and thereby attempting to dishonestly influence the outcome of the said horse racing."

2. The applicant was tried before Ryan, J. and a jury and found guilty by verdict of that jury and sentenced to imprisonment for 18 months. He now appeals against that conviction.

3. The Crown set out to prove that the four accused and others conspired to win money dishonestly by having jockeys ride so that the odds upon the horses on which they were betting would be greatly increased in their favour. The applicant was one of the jockeys.

4. Conspiracy in common law

"consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means....... The essence of the offence of conspiracy is the fact of combination by agreement ........ The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it." (Halsbury's Laws of England 4th Ed. Vol.11 p.44)

In this case the conspiracy alleged, was to do an unlawful act, that is to commit an offence under s.16(1)(a) of the Gambling Ordinance.

"16(1) Any person who -

This section makes it an offence for a person by a false practice in connection with gambling to win from another person any money.

5. The first ground of appeal is that:

6. This ground arises out of the form of words used to describe the false practice. These are as follows:

"by a false practice namely by the said TAW Man-chau, CHAN Yuk-pui, Wong Yun-sang and Roderick Lindsay Staples, and others contriving to prevent their horses running to the best of their natural abilities and thereby attempting to dishonestly influence the outcome of the said horse racing."

A charge of conspiracy would clearly not be defective if it particularized a conspiracy to commit a s.16(1)(a) offence i.e. a conspiracy to wine money by false practices. If such a conspiracy be alleged the fact that the offence itself was only attempted or, indeed, was never embarked upon would in no way affect the correctness of the pleading. The question is then - was an offence under s.16(1) (a) properly particularized? It is submitted that it was not as what was particularized was not a conspiracy to win but a "conspiracy to attempt".

7. The fallacy of this submission can be demonstrated by abstracting the essential words from the particulars of the charge. These state that the four accused "conspired together .... to win money for themselves .... from the Royal Hong Kong Jockey Club .... in connection with the placing of bets .... by a false practice". These words set out with inarguable clarity a conspiracy to commit an offence under s.16(1) (a).

8. It is, however, suggested that the insertion of the words "and thereby attempting" when describing the false practice converted what was, on its face, until their insertion a plea of conspiracy to win into a plea of "conspiracy to attempt". The "false practice" was, in our view, correctly described by the words "contriving to prevent their horses running to the best of their natural abilities ..... to dishonestly influence the outcome of the said horse racing". The words "and thereby attempting" concerned as they are with the execution of the conspiracy were surplusage. A conspiracy lies not in its execution or attempted execution but in its formulation and in the consensus of the parties thereto.

9. Given, however, that these inappropriate words did appear are we, even though satisfied that the conspiracy was correctly particularized, called upon to intervene. We would only be required so to do if the use of the words caused some injustice to the applicant. We are satisfied that it clearly did not. There can have been no misapprehension as to the nature of the conspiracy charge, i.e. a conspiracy to win money in connection with the placing of bets by false practice, namely contriving to prevent horses running to the best of their natural abilities. There is, we are satisfied, nothing in the first ground of appeal.

10. The next ground of appeal alleges that the learned trial judge failed to direct or sufficiently

direct the jury:

11. Ground 11.2, which is very much interlocked with Ground III.1, alleges a failure to direct:

Also involved in the arguments on these grounds was Ground III.(2) which reads:

"III.2.     The Learned Trial Judge failed to direct or sufficiently direct the Jury that although Race 45 on 6th October 1984 (the "Prime Mover Race") was used by Y.L. Yang as a specific example of a race plan that involved the Applicant, and the third and fourth accused; nevertheless, Y.L. Yang's evidence was that he did not give instructions for Prime Mover to be 'pulled' in that race; and was therefore never a party to any agreement so to do."

12. The first observation to be made with regard to these grounds is that conspiracy charged was to fix races in order to win money by betting thereon. Such conspiracy must of necessity encompass a betting arrangement and a race plan. Once it is shown that a person, knowing the overall extent of the conspiracy, gave his support to either the betting arrangement or to the race plan it would be of no moment as regards his liability as a conspirator to show that he was primarily involved in either the arrangement or the plan. Each is part and parcel of the other.

13. It is the submission of Mr. Ching Wong that Mr. Y.L. Yang's evidence, and he pins his colours in this regard on the evidence of the Prime Mover race, did no more than establish as regards that race that he was a party to a betting arrangement and not to the race plan. He relies when making this submission on the evidence of Mr. Y.L. Yang himself which was taken on commission. The evidence, at p.76, reads as follows:

The evidence later continues as follows :

14. Mr. Ching Wong submits that this shows that Mr. Y.L. Yang was not a party to the race plan. He submits that the betting by him is not sufficient to involve him in that plan and, it would appear, in the conspiracy overall. This argument in our view wholly loses sight both of the nature of the conspiracy and of the reality of the situation. This was a conspiracy to win money by betting on fixed races. Such a conspiracy, as we have already said, must encompass both the betting arrangement and the race plan. A person privy to a race plan, as Mr. Yang was, who then places bets from which the jockeys who make and carry out the plan are to be rewarded, as Y.L. Yang admitted he did, is, in our view, beyond argument, a member of the conspiracy which encompasses both the betting arrangement and the race plan. The fact that the plan was not conceived by Mr. Y.L. Yang detracts in no way from his membership in it. We also find nothing of merit in any of these grounds.

15. We turn now to Ground II.3 which states that there was a failure properly to direct:

"3. Regarding the 'Dragon Hill race'

The Dragon Hill race is of considerable importance as it was relied upon by the Crown as an overt act which proved the conspiracy. It was submitted that the jury should have been specifically told that before using it they must be satisfied not simply that Y.L. Yang was in some shadowy unspecified way behind Tam but that he was behind him as a conspirator involved in a plan to win money from that race. The summing up in this regard was as follows:

16. We have no doubt that the jury were fully aware from the summing up that they had to be satisfied that Y.L. Yang was behind Tam as a conspirator involved in the betting arrangement and the race plan for the Dragon Hill race.

17. Whether in the end the evidence satisfied them as to these matters was for them to decide and this was, quite properly, left to them by the judge when he said: "It is for you to decide."

18. Again we are satisfied that there is nothing of merit in this Ground of Appeal.

19. We turn now to Ground III.(1) which reads as follows:

This objection is properly made. It is conceded by the Crown that there was no such evidence from Y.L. Yang. The passage in the summing up to which objection is taken reads as follows:

"Y.L. Yang says in his evidence that there was a fixed pattern to his association with these jockeys; that he would see each jockey, usually separately on the day before the races at his office in the presence of Allen Pang. It was Tang's job to get reliable information and to ensure that the jockeys followed the instructions. It is his evidence that on occasions, the jockeys would be told not to come first or second, that these were instructions that were given to the second, third and fourth accused."

While there was no evidence of this nature from Y.L. Yang a witness, Eddie Au-yeung, gave evidence that on behalf of Yang he signalled jockeys instructing them that they were to ride their horse to try to come first or second. This evidence was, however, not admissible against the applicant as it is common ground that Eddie Au-yeung came into the conspiracy after the applicant had dropped out of it.

20. The passage in the summing up would have been correct if the judge had stated that it was Y.L. Yang's evidence not that he informed the jockeys but that they informed him of where they, in accordance with the race plan hatched by them, intended to try to place their horses. Given this we are satisfied that the mistake was not of any very real moment. We do not consider there is any substance in this ground of appeal.

21. We turn now to the last matter which is Ground III.(3) which is a complaint that:

"111.3. The Learned Trial Judge failed to direct or sufficiently direct the Jury that they were not experts on horse-racing and therefore should not make any decisions as to whether a particular horse had been 'pulled' solely upon their watching that particular horse racing on video tapes, but must base such a decision of theirs upon whether they accepted the evidence of the 'experts' called by the Crown."

This ground seems to suggest that the jury should have been told that if they did not accept the evidence of the experts as to the interpretation of the video tapes they should ignore the tapes altogether. The trial judge initially said:

"You were shown a series of patrol films and the witnesses Staples and Brosnan were presented to you as experts in horse racing, based on their experience in that field. You have heard that they were both champion apprentice jockeys in Perth and that they were both at one time the champion senior jockey in Perth and that they had considerable experience riding both in Australia and in Hong Kong. So they are presented to you as persons who are experts in this matter, and it is for you to decide whether you accept their opinion on what they have had to say about the riding styles of the three jockeys accused in respect of the patrol films that you saw."

He went on to review the evidence of the experts and said finally:

This was, we are satisfied, a proper direction which would, in our view, have been flawed, not improved, by the suggested further direction that the jury must, if they rejected the evidence of the experts, make no use of the tapes. Expert evidence is called to assist the jury in its assessment of facts. This assessment must be made in the light of all the evidence they have heard. They must, using their common sense, give to the expert evidence the weight they consider it deserves and, having done so, use it in their assessment of fact.

22. We think it appropriate to indicate that, in our view, it is undesirable that accomplices be called as expert witnesses. While such a course may, at times, be forced upon the Crown that surely could not have been so in the present case.

23. Nothing in the Grounds of Appeal that have been argued before us occasions us any doubt as to the propriety of the conviction and the application for leave to appeal is therefore dismissed.

Representation:

Mr. K. Egans, D.P.C.C., Ian McWalkers, S.C.C. & Mr. S. Wong, S.C.C. for the Respondent.

Mr. Ching Y. Wong & Mr. S. Lam (Messrs. Ng & Shum) for the Applicant.