HKSAR v. Yeung Chun Pong and Others

DCCC438/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NUMBER 438 OF 2005

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RULING

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1.There are two charges on the charge sheet in this action each of which alleges a conspiracy to deal with property known or believed to represent the proceeds of an indictable offence, contrary to sections 159A and 159C of the Crimes Ordinance, Cap. 200, and section 25 (1) of the Organised and Serious Crimes Ordinance, Cap. 455.

2.The First, Second and Fourth Accused jointly face the first charge.  It is alleged that they conspired together between the 30 June 1998 and 3 September 1999, in Hong Kong, to use a bank account in the name of the Second Accused at the Hang Seng Bank to deal with moneys in excess of $200 million. The number of that account is 275-1-076-874.

3.The Third Accused alone faces the second charge on the Charge Sheet which alleges that she conspired with the other three Accused between the period 27 August 1999 and 5 June 2002, in Hong Kong, to use a bank account in her name at the Hang Seng Bank to deal with moneys in excess of $180 million.  The number of that account is 275-8-079-095.

4.Simply reciting the format of the charges indicates that somewhat unusual circumstances prevail in this matter.  They have given rise to the issue which I am now required to decide which is whether the proceedings against the First, Second and Fourth Accused (to whom, in pursuit of brevity, I shall refer as the three Accused) have been properly brought or should be allowed to proceed.

5.When the three Accused were brought before court in Hong Kong they indicated that they intended to raise a special plea in bar of autrefois acquit.  It was also foreshadowed that the issue of staying the prosecution on the grounds of delay would fall for determination:  that ground is no longer pursued although as a fallback position the concept of staying on the general basis of abuse of process has been mooted.

The facts

6.The facts in this matter which have given rise to the special plea may be shortly stated and are not contentious.  On 21 June 2000 two sets of premises in Macao were raided:  it is helpful to recall that there were two sets of premises because it facilitates a reading of the judgment of the trial court in Macao, the “Tribunal Judicial de Base”, in respect of later proceedings.  One of the two sets of premises was leased in the name of the Third Accused.  Amongst those inside those premises were the three Accused.  Items usually associated with bookmaking were found as was a bank passbook relating to the account featuring in the second charge.

7.A number of telephone lines were installed in the premises leased by the Third Accused each of which was registered in her name.  The First Accused is (or was) the husband of the Third Accused.  The Second Accused is the sister of the Third Accused. 

8.The three Accused were arrested and were later charged, together with a number of other people, with offences under Macao law of "acceptance of illicit bettings” (bookmaking) and "commutation, transference or deceit of goods from illicit assets”.  There was a trial.  The outcome was that the three Accused were convicted only of the bookmaking offence.  Each was acquitted of the commutation offence.  The Third Accused was not within the jurisdiction of Macao and was not a party to any of the proceedings there.

9.In its judgment the trial court in Macao recited the facts upon which it relied for the purposes of convicting the three Accused of the bookmaking offence finding, inter alia, that

the three Accused on trial before it had "... agreed to deposit the moneys from third parties bettings and its profit in the Hang Seng Bank account number 275-8-079095..." opened by the Third Accused; 

the deposit book relating to that bank account was found in possession of the Fourth Accused together with a number of other bank books including those relating to other accounts apparently the name of the Third Accused;

on the day of the police raid in Macao the Third Accused instructed Hang Seng Bank to close the account;

the three Accused acted "... consciously and voluntarily" and"... mutually agreed and in combined efforts acknowledged that their conduct was not permitted by law since they were accepting Hong Kong horse racing betting was without legal authorisation of [ Macao]."

10.However, the trial court also went on to record, explicitly, that the “following facts”, which primarily related to the commutation charge, had not been proved:  that the three Accused

"	... concealed the true origin of deposits also using...[ the] account in Clube VIP and Novo Clube VIP... of [the First Accused]”;
"	through mutual agreement and combined efforts and intentions they converted the profits obtained in illicit activities... transferring all deposited incomes outside of Macao with a view to hide and conceal its illicit origin... ";
"	At the same time, they used an account in somebody else's name to hide and conceal the true nature and origin of the assets involved in the said illicit activities."

11.The witness for the three Accused in these proceedings appears to suggest that this means that the trial court found that the three Accused had not performed these acts.  With respect, it does not mean that:  it means simply that the prosecution had failed to prove that they had done so.

12.As a consequence the three Accused were “discharged”, or acquitted, of the commutation offence.  The decision of the trial court was confirmed on appeal.

The contentions

13.In short, the three Accused say that they are entitled to rely upon the acquittal in Macao: that although the commutation charge in Macao and the present charge of conspiracy may differ in form this is simply a consequence of the difference in the Macao and Hong Kong legislation and legal systems, that they are the same in substance and are founded upon the same set of facts;  that and in any event, there was, in truth, only one course of conduct which gave rise to the different charges, which demonstrates conduct on the part of the prosecuting authorities as an attempt to avoid the consequences of the Macao acquittal which is oppressive to the three Accused and ought not to be tolerated.

14.The prosecution, conversely, says that the very reason it has framed the charges as they are is because it recognises that the three Accused have been properly acquitted in respect of the illicit conversion offence in Macao and should not be tried for a second time for the same or substantially the same offence:  in other words, it recognises the fact that the judgment of the Macao court was a final judgment upon which the three Accused are entitled to rely.  The prosecution contends, although it certainly does appear to have vacillated in its attitude, that these are separate and distinct conspiracies with the result that it is entitled to prosecute.

The respective laws

15.Each of the prosecution and three Accused called a legal practitioner from Macao to testify before me.  Their personal information shows each to be an eminent and experienced practitioner.  In reality, there were few areas of disagreement in their evidence save as to the conclusion at which each arrived, converse to the other, as to the precise issue which falls for me to determine.  Mr Pedro Redinha who testified for the three Accused asserts that they could not be tried on the present Hong Kong charge in Macao as, in essence, it is the same offence as that of which they were acquitted and this would offend the autrefois acquit doctrine:  Mr Luis de Freitas who testified for the prosecution took the contrary view.

16.Their views were instructive and of assistance but, of course, it is not simply for me to adopt the opinion of one of them, rather to form my own judgment.

17.There is no dispute between the parties that a valid acquittal in one jurisdiction would entitle an accused person to rely upon that acquittal in respect of subsequent proceedings in a different jurisdiction.  A final determination in a court having competent jurisdiction is conclusive in all courts of concurrent jurisdiction:  the common law doctrine of autrefois convict and acquit is 

18.There is, now, no dispute between the parties that the proceedings in Macao were before courts of competent and concurrent jurisdiction and that the issue of the acquittal is a matter which has been finally determined by those courts.

19.In reality, there is little dispute either between the parties as to the law which is applicable to situations such as this.  That is hardly surprising.  It encompasses a narrow and well-defined field. 

20.The fundamental concept underlying the doctrine of autrefois acquit is that where a person has been convicted and punished for an offence by a court of competent jurisdiction the conviction shall be a bar to all further proceedings for the same offence, that he shall not be exposed to the peril of further conviction in respect of the same offence.  It is largely the question of just what is meant by "the same offence" that has fallen for consideration by the courts.

21.The three Accused bear the onus to establish their pleas on a balance of probabilities.  In R v Coghlan (1976) 63 Cr. App. R 33 @ p. 36 the English Court of Appeal said in connection with the burden and standard of proof when dealing with the submission that once such a plea is raised, the prosecution had to disprove it

" We reject [the] submission on two grounds.  First, because it is a principle running all through our law that in general he who asserts should prove; secondly, because in the analogous type of cases where it is alleged on behalf of a defendant that he is unfit to plead, those acting for him have to prove unfitness to the satisfaction of a jury."

22.It is helpful to look at some of what was said in R v Connelly [1964] AC 1254, the leading English authority which has been consistently followed in regard to the doctrine.  In his speech Lord Morris of Borth-y-Gest considered the questions which arise in the case of a plea of autrefois acquit, saying @ p. 1305/1306

"... both principle and authority establish: (1) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted; (2) that man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted; (3) that the same rule applies if the crime in respect of which he is being charged is in effect the same, or is substantially the same…; (4) that one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment …; (5) that this test must be subject to the proviso that the offence charged in the second indictment had in fact been committed at the time of the first charge; … (6) that on a plea of autrefois acquit … a man is not restricted to a comparison between the later indictment and some previous indictment or to the records of the court, but that he may prove by evidence all such questions … as are necessary to enable him to show that he is being charged with an offence which is either the same, or is substantially the same…; (7) that what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substan­tially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those in some earlier proceedings; (8) that, apart from circumstances under which there may be a plea of autrefois acquit, a man may be able to show that a matter has been decided by a court com­petent to decide it, so that the principle of res judicata applies; (9) that apart from cases where indictments are preferred and where pleas in bar may therefore be entered, the fundamental principle applies that a man is not to be prosecuted twice for the same crime.”

23.Then at page 1309

"It matters not that incidents and occasions being examined on the trial of the second indictment are precisely the same as those which were examined on the trial of the first.  The court is concerned with charges of offences or crimes.  The test is therefore whether such proof as is necessary to convict of the second offence would establish guilt of the first offence or of an offence for which on the first charge there could be a conviction."

24.Referring to R v Morris (1867) L.R. 1 C.C.R. 90 his Lordship observed that although that

"…case really turned upon the construction of section 45, …it illustrates that in the maxim "nemo debet bis vexari pro eadem causa" the reference is to the same offence."

25.After agreeing with the principles as set out by Lord Morris Lord Devlin expressed it this way @ p.1339

"For the doctrine autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged.  The word "offence" embraces both the facts which constitute the crime and the legal characteristics which make it an offence.  For the doctrine to apply it must be the same offence both in fact and in law."

26.Whilst Lord Morris dealt at some length with the application of the principle of res judicata to criminal proceedings, referring in the course of doing so to Sambasivam v Public Prosecutor, Federation of Malaya [1950] A.C. 458, Lord Devlin indicated that he foresaw difficulties with such an approach expressing a preference to regard "issue estoppel" as an extension of the principle of autrefois given that there is no technicality about such a plea which may be taken at any stage of the proceedings.

27.Lord Devlin concluded @ p. 1359

"As a general rule a judge should stay an indictment... when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried or form or are part of a series of offences of the same or a similar character as the offences charged in the previous indictment.  He will do this because as a general rule it is oppressive to an accused... But a second trial on the same or similar facts is not always and necessarily oppressive and there may in particular case be special circumstances which make it just and convenient in that case."

28.Lord Devlin's exposition of the doctrine was cited with approval in R v Z [2000] 3 WLR 117 in which the House of Lords revisited the decision in Sambasivam.  The issue arising from Sambasivam which the Privy Council was required to consider on this occasion related to the protection which the law gives to an accused against double jeopardy.  Lord Hutton observed @ p. 122G

"A possible application of the concept of double jeopardy would be to hold that an acquittal by a  jury in an earlier trial gives rise to an issue estoppel."

29.After reviewing a number of authorities Lord Hutton said @ p. 127H:

"This House (in R v Humphrys [1977] A.C. 1) held... that the doctrine of issue estoppel had no place in English criminal law notwithstanding that the importation of the doctrine... had received some approval in obiter dicta in Connelly....  But although rejecting issue estoppel as being applicable to criminal proceedings the House recognised that in some circumstances a defendant in criminal proceedings is entitled to be protected against double jeopardy by the court exercising its inherent power to decline to hear proceedings on the ground that they are oppressive and an abuse of its process.  In my opinion the speeches in the House recognised that as a general rule the circumstances in which a prosecution should be stopped by the court are where on the facts the first offence of which the defendant had been convicted or acquitted was founded on the same incident as that on which the alleged second offence is founded."

and later @ p. 135 D:

"The principle of double jeopardy operates to cause a criminal court in the exercise of its discretion and subject to the qualification as to special circumstances stated by Lord Devlin in Connelly's case... to stop a prosecution where a defendant is being prosecuted on the same facts or substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal..."

30.The Hong Kong Court of Appeal in R v YU Wai-shan and Another [1986] HKLR 550 recognized that the doctrine of issue estoppel had been laid to rest insofar as criminal trials are concerned in Humphrys.

Do the two sets of proceedings relate to "the same offence"?

31.I am prepared to accept, based upon the overall evidence of both of the witnesses who testified, that whilst there is no particular offence of conspiracy known to the law in Macao, the offence of "association" invoked in the proceedings during the trial against the three Accused is akin to an offence of conspiracy in this jurisdiction.  I also accept that the commutation offence in Macao is the equivalent of the offence of dealing in the proceeds of an indictable offence in Hong Kong.

32.However, there is one striking difference between the position in Macao and that in Hong Kong which was referred to by Mr Redinha.  It was his clear evidence that if two persons agree to commit an offence, the example he gave was to rob a bank, but do nothing at all about it their agreement itself "cannot be a crime in Macao".  He amplified this evidence indicating that there cannot be what he described as the "simple thought of committing a crime" stating that there need be an act of execution before any offence is committed.  This assertion went unchallenged by Mr de Freitas and I accept it as an accurate statement of the law.

33.That, of course, is fundamentally different from the position in Hong Kong.  At the risk of stating the obvious, a conspiracy is an agreement between two or more persons to perform an unlawful act or a lawful act unlawfully.  The actus reus of the offence is the agreement itself.  Once that agreement has been reached the offence is complete - assuming the necessary mens rea.  It is not necessary for there to be any act in furtherance of the agreement:  it is the agreement to commit the offence and the intention to take part that forms the offence.  R v Aspinall (1876) 2 QB 48 @ p 58-59  It will continue so long as there are two or more parties to it intending to carry out the agreement.  DPP v DOOT and Others    [1973] AC 807.

34.In my judgment, this alone would justify a finding that the two offences are not the same or substantially similar.  In order to secure a conviction in Macao, the evidence is that the prosecution would have to prove not only the existence of an agreement but additionally an overt act in furtherance of that agreement.  In order to secure a conviction in Hong Kong, the prosecution need only prove the conclusion of the agreement.

35.The three Accused did not put before me in their documents the "Accusation" upon which the subsequent trial was based.  However, that was included in the prosecution’s bundle:  it appears to be the equivalent of a charge sheet or indictment in Hong Kong.

36.In respect of the conduct of which the three Accused were tried consequent upon that "Accusation" it will be seen that the references to various bank accounts do not include a reference to the bank account 275-1-076-874 which is the subject matter of the first charge before me which the three Accused now face.  The "Accusation" includes a reference, amongst other accounts, only to that account bearing number 275-8-079-095 which is the bank account referred to in the second charge before me which is faced only by the Third Accused.

37.This seems to me also to be of fundamental importance in the light of the evidence of Mr de Freitas who testified, under cross-examination, that for there to have been proceedings in respect of bank account 275-1-076-874 a substantive investigation would have been required with a specific reference to it incorporated in the "Accusation".

38.Mr Redinha accepted that bank account 275-1-076-874 did not form part of the "Accusation" or the subsequent judgment; that no evidence had been led in connection with it during the trial;  that no alterations were made to the “Accusation” against the three Accused;  that that account was not part of the process in the proceedings;  and, perhaps most pertinently, that the three Accused could not have been convicted in respect of bank account 275-1-076-874 if it was not referred to in the “Accusation”.

39.Mr de Freitas’s evidence was, and I accept it, that the question of the second bank account could have been left for an autonomous investigation and that if the prosecution had decided to prosecute in respect of only one of the two bank accounts there would be no obstacle to a later prosecution in respect of the second bank account.  He described this as being an "administrative procedure" rather than a judicial one. 

40.In my judgment, the combined evidence of Mr Redinha and Mr de Freitas shows that, as a matter of fact the three Accused were not placed in jeopardy of conviction in respect of a conspiracy, or an offence akin to conspiracy, or even a substantive offence of dealing with the proceeds of an indictable offence, relating to bank account 275-1-076-874.

41.There is no difficulty in law about alleging a separate conspiracy in respect of one identified bank account and another in respect of another identified bank account, even though some, or it may be all, of the conspirators may have been parties to a wider agreement. The wider agreement or conspiracy would not preclude the existence of sub-agreements or sub-conspiracies and, as a matter of law, these sub-conspiracies or sub-agreements could properly be charged as separate offences.

42.In addition to the feature of the account number is the question of the dates between which the respective offences are alleged to have occurred.  In respect of the Macao proceedings the allegation was that the offence was committed between September 1999 and June 2000.  Those dates are effectively repeated, as is to be expected, in the second charge, against the Third Accused.  However, in the first charge, against the three Accused, the conspiracy is alleged to have existed between 30 June 1998 and 3 September 1999.

43.In the circumstances the three Accused have failed to satisfy me on the balance of probabilities that the doctrine of autrefois acquit is of application in the present matter.  Put quite simply, the evidence necessary to support the second proceedings would not be sufficient to have procured a legal conviction upon the first.

The discretionary limb

44.In considering in Connelly the ancillary issue of the court’s power to safeguard an accused from oppression or prejudice and recognising that in addition to the application of the doctrine of autrefois acquit the court had an inherent jurisdiction to prevent abuse of its process, Lord Devlin expressed the opinion that @ p. 1347

"... the judges of the High Court have in their inherent jurisdiction, both in civil and in criminal matters, a power to make and enforce rules of practice in order to ensure that the courts process is used fairly and conveniently by both sides....; power...by staying a second indictment if it is satisfied that its subject matter ought to have been included in the first."

whilst Lord Morris observed @ p. 1302 that that power does not

"…enable a court to order that a prosecution be dropped merely because of some rather imprecise regret that an accused should have to face another charge".

45.It is clear from the authorities that a court is possessed of a discretion which extends beyond the ambit of the doctrine of autrefois acquit enabling it to stay a second prosecution where that second prosecution can properly be said to be oppressive in nature.  See for example R v Horsham Justices ex parte Reeves 75 Cr App R 236, R v Willesden Justices ex parte Clemmings 87 Cr App R 280, R v Harding (1995) CLR 737 and R v The Old Street Magistrates’ Court ex parte Davies (1995) CLR 629.

46.However, it is now well settled in Hong Kong that stay of proceedings on the ground of abuse of process is a course which should be followed only in exceptional circumstances.  In HKSAR v LEE Ming Tee & Ano. (2001) 4 HKCFAR 133 the court, after considering the issue of the stay of proceedings based upon the inability of an accused to secure a fair trial, went on to consider the issue of abuse of process by virtue of the prosecution's conduct and observed:

42.	…These are the rare cases where the court is prepared to grant a permanent stay even though a fair trial undoubtedly remains possible. The leading authority is the decision of the House of Lords in R v Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 AC 42, where, although the fairness of the trial was not in question, the court granted a stay because the circumstances involved an abuse of power which so offended the court's sense of justice and propriety that the entire prosecution was tainted as an abuse of process.
43.	While the jurisdiction on this dual basis clearly exists, it is only most sparingly exercised: Tan v Cameron [1992] 2 AC 205 at 221; Jago v The District Court of New South Wales (1989) 168 CLR 23 at 31; Ex parte Bennett [1994] 1 AC 42 at 74.
44.	There are cogent reasons why in principle and in practice such stays are highly exceptional.
… even though official misconduct may be involved in the bringing of the prosecution, the court does not exercise the jurisdiction to stay proceedings as a means of disciplining the police or prosecuting authorities. …
The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court's process. The instances where such an argument has any prospects of success must necessarily be very rare.

47.In seeking to persuade me to exercise my discretion in their favour the contentions of the three Accused may be summarised as pointing to two primary matters:  firstly, the fact that implicit in the evidence of both Mr Redinha and Mr de Freitas is that bank account 275-1-076-874 could have been included in the “Accusation” had there been an investigation - the three Accused say that not only could it have been so included but that it should have been and that to allow the present prosecution to proceed consequently would be oppressive;  and, secondly, that the conduct of the prosecuting authorities in Hong Kong is oppressive.

48.There simply is no evidence before me as to why there were no proceedings in Macao in relation to bank account 275-1-076-874.  It would be wrong for me to speculate and I do not propose to do so but it is self-evident that there may have been any number of reasons.  In my judgment the mere fact that there were no such proceedings in Macao does not demonstrate oppressive conduct on the part of the prosecuting authorities or conduct that, per se, is deserving of condemnation.

49.In my judgment the principles adumbrated in LEE Ming Tee are applicable to the exercise of the discretion as to whether to stay proceedings in respect of a “second” prosecution.  On a proper construction of LEE Ming Tee the conduct of the prosecution would have to demonstrate, or be so close to demonstrating as would make no material difference, mala fides.  There is of no evidence of that in this matter.

50.Insofar as the approach of the prosecution in Hong Kong to these proceedings is concerned it is pertinent to note that there have been a number of earlier skirmishes between the prosecution and the Accused.  These have primarily turned around the issue of whether the magistrate before whom the Accused first appeared should or should not have considered the issue of autrefois acquit.  They have largely been supervened by events and need not detain me.

51.The essence of the complaint is that when the Accused were brought before a magistrate on the 2 December 2004 the prosecutor applied for the consolidation of two different matters into one saying "... all four defendants face the same charge, which is the charge of conspiracy to deal with the proceeds of an indictable offence... you will see from the particulars of the charge in question that they pertain to the same matter." whereas now it has changed its stance and contends that there are two separate and distinct conspiracies.

52.It should be noted that the purpose of that consolidation was to join one Accused in one case with three Accused in another case so that there would only be one case before the court.  That application was granted when counsel for the various Accused indicated that there was no objection to it.  There was also an indication, although in non-specific terms, that applications for stay or dismissal of the proceedings may be forthcoming from the three Accused on a later date.

53.There were subsequent court appearances.  On 16 December 2004 a bundle of documents was given to the prosecution by Mr Wong who then appeared for the Accused, as he now does as junior to Mr Dykes SC.  It is not clear from the record, because it was not made clear to the magistrate, just what the status of those documents was said to be.  The proceedings were adjourned until the 25 January 2005 to enable the prosecution to consider those documents.

54.On that date the prosecution indicated to the magistrate that it would seek to separate the single charge faced by all four Accused into the two charges now before me.  It is this action which leads to the present complaint, the contention being that it was a decision taken by the prosecution directly so as to circumvent the plea then foreshadowed and now being advanced.

55.That, of course, should have been precisely why the decision was made.  The Accused had made information available to the prosecution, presumably in the bundle of documents provided on the 16 December 2004, which must have related, inter alia, to the acquittal of the three Accused in Macao.  The prosecution considered that information and saw the difficulties that could arise from the charge as then framed.  It then, in my judgment, responsibly and as it was obliged to do, considered its position and amended the charges. 

56.At the proceedings on 25 January 2005 the Accused were represented not by just one but by four counsel, leading counsel other than Mr Dykes SC and three juniors one of whom was Mr Wong.  The magistrate enquired whether there was any objection to the proposed amendments to the charge.  Then leading counsel for the Accused stated, in terms, "No objection to the amended charges".

57.It is hard to see how it can now lie in the mouths of the Accused, having not objected to the amendments, to rely upon those very amendments as opprobrious. The attempt to portray these events as conduct worthy of criticism by the court is, with respect to Mr Dykes, entirely  misconceived.

58.References to documents created for limited purposes by a police officer and couched in language perhaps lacking the precision which one would hope to see from a skilled draughtsman take the matter no further.

59.I am satisfied that on the facts of the present matter there would be no justification for me to exercise my discretion in favour of the three Accused to stay the proceedings.

60.The prosecution of the first charge is to proceed.