Read the full judgment text of CACC 000230/2005 on BabelCite. This Court of Appeal judgment was delivered on 24 November 2005 before Stuart-Moore VP, Woo VP and V. Bokhary J.
Criminal law – conspiracy to defraud – elements of the offence – whether economic loss or risk to economic interests is a necessary ingredient – case stated appeal from acquittal – procurement fraud involving rigged competitive quotations – sub-contract terminated due to false appearance of compliance with practice directions – oral representations that quotations were genuinely competitive and prepared separately – government schools and Education Department as victims – Secretary for Justice appealing against acquittals on two charges of conspiracy to defraud contrary to common law and punishable under s. 159C(6) of the Crimes Ordinance, Cap. 200 – first issue whether the trial judge correctly defined the elements of conspiracy to defraud as requiring that the conspiratorial agreement, if carried out, would deceive the victim into action or inaction causing economic loss or putting economic interests at risk – court holds the judge misdirected himself – R v Wai Yu-tsang [1992] 1 HKCLR 26 is not authority for the proposition that economic loss is a necessary element – intent to defraud means simply an intention to practise a fraud on another, or an intention to act to the prejudice of another man's right, following Lord Radcliffe and Lord Denning in Welham v DPP [1961] AC 103 and rejecting Lord Diplock's narrower categorisation in Scott v Metropolitan Police Commissioner [1975] AC 819 – second issue whether the judge was correct in dismissing the charges for absence of evidence of financial loss or benefit – court holds the judge was not correct – economic loss is not a prerequisite – third issue whether an agreement to falsely create an appearance of compliance with a practice direction can constitute conspiracy to defraud – court holds the judge erred in ruling it could not – such a scheme prejudices the victim's right to proceed under the established practice – fourth issue whether quotations in the names of two companies can be read as representations that they were genuinely competitive and prepared separately – court holds the judge was not correct – by their nature, quotations in a regulatory context requiring competition carry such implicit representations – HKSAR v Lau Kwok-wah, Benjamin [2004] 3 HKC 523 properly understood expresses no different view – appeal allowed – verdicts of acquittal reversed – matter remitted to the trial judge with the Court of Appeal's opinion – trial to be resumed within two months of 24 November 2005 with two days reserved – trial judge directed to make a finding on dishonesty – both respondents admitted to bail.
Legal issues: Definition of elements of conspiracy to defraud · Whether absence of proven economic loss justified dismissal of charges · Whether falsely creating appearance of compliance with practice directions constitutes conspiracy to defraud · Whether two-company quotations can be read as representations of genuine competition
Outcome: Appeal by the Secretary for Justice allowed; all verdicts of acquittal reversed; matter remitted to the trial judge with the Court of Appeal's opinion on the four questions, and the trial directed to be resumed.
Cites 1 case