Read the full judgment text of CACC 000513/1995 on BabelCite. This Court of Appeal judgment was delivered on 14 March 1997 before Litton VP, Bokhary JA, Mayo JA.
Criminal law – conspiracy to defraud – particulars – scope of evidence – summing-up – appeal. The applicant was convicted on a single count of conspiracy to defraud, contrary to common law, in a High Court trial before Ryan J and a jury, and was sentenced to 8 years' imprisonment, a fine of HK$10 million and an additional one year's imprisonment in default of payment. The indictment also contained 50 substantive counts of obtaining property by deception contrary to s.17(1) of the Theft Ordinance (Cap 210), said to be 'alternative' to the conspiracy count. The particulars of the conspiracy alleged an agreement between the applicant, Leung Kai-man (K.K. Leung) and Ho Sheung-lin to defraud such persons as might pay money to EGI International for investment in foreign exchange transactions by falsely representing that the company was operating a computer program trading system. The Court of Appeal allowed the appeal and quashed the conviction, holding that on the face of the indictment the substantive counts were not true alternatives to the conspiracy as averred, and that the evidence led by the prosecution went far beyond the scope of the conspiratorial agreement. The Court of Appeal made observations on the function of particulars in a conspiracy count: the bare expression 'to defraud' is not self-explanatory, as might be the words 'to steal', and fraudulent conduct can take an infinite variety of forms. The expression 'to defraud' is not a passport to a limitless field of criminality. The offence charged on the indictment should represent the whole of the criminality as averred, which in turn defines the scope of the evidence the prosecution can properly lead. Conspirators do not put their heads together and say 'let us act to the prejudice of other persons' rights'; that is the language of legal analysis, not the vocabulary of fraudsters. A conspiratorial agreement to tell lies to others, without more, is not a conspiracy to defraud. Following Landy [1981] 72 Cr.App.R. 237, defendants and trial judges are entitled to know precisely, and on the face of the indictment itself, the nature of the prosecution's case, and the modern practice of using wrap-up words such as 'and by divers other false and fraudulent devices' is condemned. The Court further considered the concepts of economic loss and risk of economic loss discussed in R. v. Allsop [1976] 64 Cr.App.R. 29 and The Queen v. Wai Yu-tsang [1992] 1 HKCLR 26, and concluded that the trial judge had introduced a concept of risk and a wider scheme of systematic withdrawals by Madam Ho that were never averred in count 1. The summing-up accordingly lost focus, and it was impossible to say of what the applicant had been convicted.
Legal issues: Function and scope of particulars in a conspiracy to defraud charge · Whether the evidence led went beyond the scope of the conspiratorial agreement averred · Adequacy of the judge's directions to the jury on the conspiracy charge
Outcome: Appeal allowed; conviction on the conspiracy to defraud count quashed.
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