Wong Shun Wah and Another v. HKSAR

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 13 OF 2005 (CRIMINAL)

(ON APPEAL FROM CACC NO.492 OF 2003)

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Between:

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Court : Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Fuad NPJ and Sir Thomas Eichelbaum NPJ

Date of Hearing : 9 May 2006

Date of Judgment : 23 May 2006

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J U D G M E N T

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 Mr Justice Bokhary PJ :

1.I agree with the judgment of Mr Justice Fuad NPJ.

Mr Justice Chan PJ :

2.  I agree with the judgment of Mr Justice Fuad NPJ.

Mr Justice Ribeiro PJ :

3.I agree with the judgment of Mr Justice Fuad NPJ.

Mr Justice Fuad NPJ :

4.  This appeal concerns the proper directions to be given to a jury when two persons alone are tried together for the offence of conspiracy without any other person being named (or unnamed) in the indictment as an alleged conspirator.

5.  The appellants Wong Shun-wah and To Man-kum were two of eight defendants charged with various offences.  They were respectively the 3rd and 5th defendants (D3 and D5).

6.On 17 October 2003, after a trial in the Court of First Instance (Pang J and a jury) which lasted 80 days, all the other defendants were acquitted of all the offences charged against them.  The 1st appellant was acquitted on Counts 1 and 2 of the indictment, while the 2nd appellant was found not guilty on Counts 2, 7 and 8.

7.However, both the appellants were convicted, each by a majority of 7:2, of the offence laid against them in Count 6.  On 31 October 2003 they were each sentenced to 7 years' imprisonment.

8.Count 6 averred a conspiracy to defraud contrary to common law punishable under s.159C(6) of the Crimes Ordinance, Cap.200.  The Particulars of Offence were as follows :

“WONG Shun-wah (D3) and TO Man-kum (D5), on divers days between October 1996 and February 1997, in Hong Kong, conspired together to defraud Hsin Yieh Architects and Associates Limited and the Hong Kong Housing Authority by dishonestly and falsely representing :

(1) that the lengths of all as-built driven piles for Blocks 1 and 2 of Ting Chung court of Tin Shui Wai Area 31 Phase I under the Contract Number 36 of 1996 ('the Contract') had purportedly reached the depths as reported in the as-built drawings submitted in Registered Structural Engineer Report dated the 7th day of July 1997; and

(2) that all as-built driven piles for Blocks 1 and 2 of the said Tin Chung Court had purportedly reached the acceptable depths in accordance with the requirements under the General Specifications of material and workmanship for Hong Kong Housing Authority Contracts and Particular Specifications as incorporated in the Contract.”

9.The alleged offence arose out of the design and building of foundation works for a development being carried out under the Housing Authority's Home Ownership Scheme.  It transpired that the depths of many of the piles sunk as foundations for two of the blocks under construction had not reached the reported depths, nor had they reached the acceptable depths as represented or as required by the contract.

10.  The parties agreed under s.65(c) of the Criminal Procedure Ordinance, Cap.221, that the piles were substantially shorter than the lengths stipulated in the contract.

11.  The 1st appellant was the Quality Control Engineer employed by the company which had secured the contract for the foundation works.  His duties included inspecting the works and certifying that they had been carried out in accordance with the plans and specifications.  He was also responsible for preparing or countersigning the piling records which were later used in the drawings in reports submitted to the Housing Department for certifying that the works had been carried out to specification.  He was the key person of the company responsible for the piling and attended monthly meeting on the site.

12.The 2nd appellant was the Assistant Clerk of Works employed by the architects engaged to manage the construction of the foundations on behalf of the Housing Authority and he represented the Authority at monthly site meetings where progress and any problems regarding the works were discussed.  His duties included checking piling records prepared by the 1st appellant and endorsing them.  He had the duty also of keeping piling records and was the Housing Authority's main representative on the site.

13.Neither of the appellants elected to give evidence at the trial, nor did they call any witnesses.

14.  The 1st appellant had made no admission to the investigating authorities.  The 2nd appellant made certain admissions to the ICAC but did not admit to taking part in a conspiracy although acknowledging that he had not done his job properly.  He had, he said, become aware of the falsification of the records after they had been compiled or recorded.

15.  The appellants applied for leave to appeal against their convictions to the Court of Appeal.  On 21 July 2005, the Court (Woo VP, Stock JA and Lugar-Mawson J) allowed their applications but dismissed the appeals.  The 1st appellant abandoned his application for leave to appeal against sentence and the 2nd appellant's application was dismissed.

16.  At common law, a long line of cases established that if two persons are jointly indicted for conspiracy (without any other parties being named) and they are tried together, if one is acquitted, the other must also be acquitted.

17.In DPP v. Shannon [1975] AC 717 HL, the common law rules were examined in great depth by the Court of Appeal and the House of Lords.  There, two alleged conspirators were tried separately.  One pleaded guilty and the issue was what effect, if any, the other's subsequent acquittal had on his conviction.  The Court of Appeal held that if A and B are indicted and tried together (no other conspirators being alleged) however strong the evidence was against A and however weak the evidence against B, then both must be acquitted.  As to the question whether A's conviction on his own confession of conspiracy with B could stand when B is for any reason subsequently acquitted of the conspiracy with A, on the facts of the case before them, the Court held :

“The answer we think (on the authorities which have stood through the centuries) lies in the nature of the offence of conspiracy.  If we were not constrained by long established if not technically binding authority to hold that where A and B alone are charged together with conspiracy, both must be convicted of conspiracy or both acquitted, a different result must logically have followed in the present appeal.  But as the authorities stand the question is not one of proof but of the nature in law of the offence of conspiracy.  The nearest analogy is that a plea of guilty by an accessory cannot be allowed to stand if the principal offender is later acquitted.  This is not because of any question of proof but because in law a man cannot be guilty of being an accessory if the alleged principal offender has been found not guilty.

Accordingly we feel reluctantly obliged to allow this appeal and quash the defendant's conviction.”

18.On appeal to the House of Lords, it was held unanimously that where A is alleged to have conspired with one other person, B, the acquittal of B, before or after the trial of A, was no bar to, or ground for quashing, the conviction of A.

19.The House of Lords went on to consider the case where only two alleged conspirators jointly indicted are tried together.  Lord Morris of Borth-y-Gest (with whom Lord Reid agreed) expressed the opinion that the common law rule that in such circumstances if one is acquitted the other must also be acquitted had much to commend it and was one which “ought not lightly to be jettisoned”.

20.Viscount Dilhorne observed that if it were necessary to decide whether or not “the long-established rule” was now obsolete, he would be inclined to hold that it was but he felt “considerable reluctance to expressing a firm conclusion on a question that does not arise for decision in this case and on which anything that is said is clearly obiter”.

21.  Lord Simon of Glaisdale stated that he would be “in favour of a declaration that the whole body of rules whereby the acquittal of B of conspiracy with A must of itself be held to be inconsistent with A's conviction of conspiracy with B has no subsisting validity”.

22.Lord Salmon considered that in all save the most exceptional cases, the judge should continue to direct the jury that they should convict or acquit both.

23.The legislature in England, and later in Hong Kong, intervened and abolished the common law rule that on a joint trial of only two conspirators the jury must be directed to convict both or acquit both.

24.Section 5(8) and (9) of the UK Criminal Law Act 1977 provides :

“(8) The fact that the person or persons who, so far as appears from the indictment on which any person has been convicted of conspiracy, were the only other parties to the agreement on which his conviction was based have been acquitted of conspiracy by reference to that agreement (whether after being tried with the person convicted or separately) shall not be a ground for quashing his conviction unless under all the circumstances of the case his conviction is inconsistent with the acquittal of the other person or persons in question.

(9) Any rule of law or practice inconsistent with the provisions of subsection (8) above is hereby abolished.”

25.In Hong Kong, section 66A of the Criminal Procedure Ordinance, Cap.221, had provided as follows :

“A person shall not be entitled to be acquitted of the offence of conspiracy for the reason only that the only other person or persons with whom he is alleged, in the indictment or charge sheet, to have entered into the conspiracy are or have been acquitted.”

26.This provision was replaced by s.159E (4) and (5) of the Crimes Ordinance, Cap.200 (the law presently in force) which state :

“(4) A person shall not be entitled to be acquitted of, or to have quashed his conviction for, the offence of conspiracy for the reason only that the only other person or persons with whom he is alleged, in the indictment or charge sheet, to have entered into that conspiracy are or have been acquitted.

(5) Any rule of law or practice inconsistent with the provisions of subsection (4) is abolished.”

27.The current law in Hong Kong does not provide, as does the English law, that the conviction of a conspirator cannot stand if his conviction is inconsistent with the acquittal of all his co-conspirators.  However, the verdict of a jury is always subject to challenge if the inconsistency is such that it would not be safe to allow the verdict to stand (see paras.7-70 to 7-72 of the 2006 Edition of Archbold).

28.The English law addresses the position at the appellate stage whereas the Hong Kong law embraces the trial stage as well, but the practical effect of both sets of provisions is the same.  If a particular conviction cannot be quashed on appeal, the conviction could not have been barred at the trial.

29.Thus the relevant authorities on the effect of the English legislation are apt and persuasive.

30.  In R v. Longman and Cribben (1981) 72 Cr App R 121, the English Court of Appeal (Criminal Division) gave guidance regarding the nature of the directions that should be given to a jury when two persons alone, with no other person named or unnamed, are jointly indicted for conspiracy and are tried together, in the light of the change to the law brought about by the Act of 1977.  Lord Lane CJ, giving the judgment of the court, stated at pp. 124-125 :

“When a trial judge is faced with the task of directing a jury in a case of this sort, where the charge is that A and B conspired together but with no one else to commit crime, he will, as in other cases involving two defendants, as a general rule have to tell the jury that they must consider the evidence against each defendant separately.  Where the strength of the evidence against each is markedly different, usually (as in the instant case) because A has confessed and B has not, he should then go on to explain that because there is that difference in the evidence against each, the jury may come to the conclusion that the prosecution have proved beyond doubt against A that A conspired with B, but have not proved against B that any such conspiracy existed.

That may appear to be illogical, but it is the necessary result of the rules of evidence which are designed to ensure fairness.  If, therefore, the jury are satisfied that A conspired with B but are not satisfied that there is adequate evidence of B's guilt, they should convict A and acquit B.  We can see no reason why the jury should not understand such a direction.

Where at the close of the prosecution case the evidence against one of the defendants is such that it would be unsafe to ask any jury to convict, then it goes without saying that the judge should so rule, and the case can then continue against the other defendant.

There will, however, be cases where the evidence against A and B is of equal weight or nearly so.  In such a case there may be a risk of inconsistent verdicts, and the judge should direct the jury that because of the similarity of the evidence against each, the only just result would be the same verdict in respect of each : that is to say, both guilty or both not guilty.  He must be careful to add, however, that if they are unsure about the guilt of one, then both must be found not guilty.

Whether he gives such a direction will, of course, depend on the way the evidence has emerged.  The test is this.  Is the evidence such that a verdict of guilty in respect of A and not guilty in respect of B would be, to all intents and purposes, inexplicable and therefore inconsistent?  If so, it would be an occasion for the 'both guilty or both not guilty' direction.  If not, then the separate verdict direction is required.”

31.Longman and Cribben was applied in R v. Roberts (1984) 78 Cr App R 41.  At p.47, Lawton LJ, giving the judgment of the Court of Appeal, emphasised the decision the judge had to make on the evidence before addressing the jury.  He said :

“When a judge has to sum up in a conspiracy case, involving only two accused, he has to make up his mind, on the evidence, whether or not it is possible, as a matter of law, for one of the accused to be convicted and the other acquitted.  That must necessarily be a matter for the judge to decide.  Once he has decided it, he must direct the jury accordingly.  When he comes to decide it, a factor he should keep in mind is whether the two cases are different to a substantial degree; but that is a matter for his assessment and not for the jury's.  If it were otherwise, there would be a danger of the jury becoming confused by being invited to consider two different approaches to their task.  Confusion is liable, in the experience of this court, to lead to inconsistent verdicts.”

32.  In R v. Testouri [2004] 2 Cr App R 26, Kennedy LJ, giving the judgment of the Court of Appeal (Criminal Division), referred to Longman and Cribben and Roberts and at pp.30-31 said this :

“In our judgment, the principle which has to be followed in relation to cases of this kind is easy to state but not always easy to apply.  In any case where what is alleged is a conspiracy to defraud, in which only two defendants are alleged to have participated, the judge should ask himself two questions.  First : whether there is evidence of conspiracy to defraud?  That means there must be evidence of an agreement to achieve a criminal purpose.  If there is no evidence of that because, for example, on one view of the evidence only one defendant can be shown to have been dishonest, then, if that view of the evidence is taken, both defendants must be acquitted and the jury must be so directed.  The authority for the proposition is to be found in Yip Chiu-Cheung v. R (1994) 99 Cr.App.R. 406, [1995] 1 A.C. 111.  Secondly : whether there is any evidence admissible against only one defendant?  If that evidence is, or could be, critical, in that without it that defendant cannot be shown to have been a party to the conspiracy alleged, then it will be necessary to explain to the jury how they may reach the conclusion that although the case is proved against that defendant, it is not proved against the defendant in relation to whom the evidence may not be admissible.  Where there is no such evidence the jury must be told that it is not open to them to return different verdicts in relation to two defendants.  That, as it seems to us, is in practical terms what is meant by the authorities to which we have referred when they speak of evidence being of unequal weight.

Another way in which to approach this difficult problem is for the judge to ask himself what the position would be if one or other of the two defendants were standing in the dock alone.  If that approach is adopted, it seems to us that the judge, again, will have considerable assistance in coming to a conclusion, one way or the other, as to the form of direction he should give to the jury, whether they are entitled, in the particular circumstances of the case and having regard to the provisions of the 1977 Act, to come to a conclusion that there will be a different verdict in relation to each of the two defendants, or whether the case is one where the same verdict must be applied to each.”

33.The principal English authorities were discussed and applied by the Hong Kong Court of Appeal in the unreported case of HKSAR v. Cheung Ning-yau (unrep., CACC No.133 of 2000).

34.  Pang J finished his summing-up by inviting the jury to ask questions if they felt they needed further guidance on the evidence or on the law.  The jury left the Court while the judge heard submissions from Counsel which are not relevant to this appeal.  When they returned the foreman said : “Excuse me, my Lord.  We have two questions on the statements.”  The jury were asked to put their questions into writing.  When the jury came back into court their three questions were read out.

35.There was then a brief discussion in which the judge, Counsel for the Prosecution and Counsel for D1 took part; D8, acting in person, told the court that he adopted Counsel's views.  On the question of non-participation by the other Counsel in that discussion, the Court of Appeal had this to say :

“Factually speaking, despite the fact that the judge did not ask counsel for D3 and D5 whether they were in agreement with the answer to the second question raised by the jury, it cannot be denied that the discussions relating to the answers to all the three questions were conducted in open court when counsel for all the defendants as well as D8 were present.  In our view, it is unnecessary for the judge to have asked each counsel specifically whether he agreed with the proposed answers.  Counsel's presence without making any objection or taking any point would mean that they had agreed to the proposed answers that had been discussed openly mainly between Mr Callaghan and the judge.  Thus it is crystal clear that the answers given by the judge to the jury had the consensus of all counsel representing all the defendants at the trial.”

36.We are not concerned with the jury's 1st question.  The 2nd question was :

“According to the handout [on the law of conspiracy as directed by the judge], conspiracy consists of at least two persons.  In Count 6, there are only two accused involved.  Could we conclude that one of them is guilty, whereas the other one is not guilty?” [Transcript p.740F]

37.Regarding this question, at p.736F – O the transcript reads :

“COURT : And question 2?

MR CALLAGHAN : The answer to Question 2 is 'no'.

COURT : 'No.'

MR CALLAGHAN : There's got to be more than one conspirator.  We all know that.

COURT : 'Could we conclude that one of them is guilty whereas the others is not guilty?'  The answer is 'no'.

MR CALLAGHAN : 'No.'

COURT : You can't conspire with oneself.

MR CALLAGHAN : You can't conspire with yourself.

COURT : Right.  It doesn't fall into the exceptions?

MR McNAMARA [Counsel for D1] : 'No.'

MR CALLAGHAN : No.

COURT : Right.”

38.  When the jury returned to Court the judge gave the following answer to that question : “The answer to the second question is 'No'”.

39.The jury's 3rd question related to Count 1 which alleged a conspiracy between D1, D2, and D3 (the 1st appellant) and D8, with Lam Nai-wai.  Lam had been a prosecution witness giving evidence under immunity.  The jury's question was in these terms :

“In Count 1, is Lam Nai-wai assumed to be one of the conspirators if there is a conspiracy?  If the answer is affirmative, could we conclude that only one of the accused is guilty?” [Transcript p.740H]

40.After a discussion in which the judge, Counsel for D1 and Counsel for the prosecution took part, the judge answered the jury's question in this way :

“The third question, the first part, 'Lam is not assumed to be a conspirator.  He would only be a conspirator if you find he agreed with any of the other named persons to commit the offence'.  I repeat, 'Lam is not assumed to be a conspirator.  He would only be a conspirator if you find he agreed with any of the other named persons to commit the offence.'

Now, the second part, 'And if you have a doubt that Lam is a conspirator, then all the others charged – all the others charged with Count 1 must be acquitted.'  I repeat, if you have a doubt that Lam is a conspirator, then all the others charged with Count 1 must be acquitted.'

Now, if you are sure that Lam is a conspirator, you can convict the person or persons whom you are sure conspired with him.'  I repeat, 'If you are sure that Lam is a conspirator, you can convict the person or persons whom you are sure conspired with him.

The fact that Lam was given immunity is not evidence that Lam is a conspirator.”

41.  Until the jury asked their questions, the judge's otherwise full and careful summing up did not address the special position in law (relevant to Count 6 on which the appellants were convicted) when two only are charged with conspiracy and are tried together.  The ingredients of the offence of conspiracy to defraud apart, the summing up would have been appropriate for any other case involving more that one defendant and multiple counts.

42.It was perspicacious of the jury to raise by their 2nd question an issue which had long troubled the common law and which had been the subject of much informed critical comment and judicial consideration.  It will be recalled that Lord Morris of Borth-y-Gest began his speech in Shannon (at p.744) by saying : “My Lords, the law of conspiracy has been fertile in producing many problems for lawyers.”  The legislature in England and in Hong Kong intervened (as we have seen) in one area of the law relating to conspiracy.

43.It appears that during the discussion in the absence of the jury as to what answers should be given to their questions, none of the Counsel then appearing in the case drew the attention of the judge to s.159E(4) and (5) of the Crimes Ordinance, Cap.200.  As the transcript shows, in relation to Count 6, the exchange between the judge and Counsel, such as it was, proceeded as if those provisions had not been enacted.  Nor did Counsel point out to the judge, when he mentioned Shannon as raising a “classic” and “textbook” question, that s.5(8) and (9) of the UK Criminal Law Act of 1977 had abolished the common law requirement that where only two alleged conspirators are tried together, the jury must be instructed that they can only convict both or acquit both.  It followed that no reference was made to cases such as Longman and Cribben, Roberts, Testouri and Cheung Ning-yau which gave guidance as to the appropriate directions necessary to reflect the change brought about by the legislation which abolished the former constraints of the common law.

44.After reviewing the evidence against the two defendants on Count 6, the Court of Appeal agreed with the submission of Counsel for the prosecution that the nature and strength of the evidence as against each of them was not markedly different.  In the Court's view, apart from the fact that D3 had not admitted that the signatures on the records (under the initials “QCE”) were his own, the strength and weight of the evidence against him and D5 was almost identical so that a verdict that one appellant was guilty and the other not guilty would have been inconsistent.  Thus the effect of the judge's answer to the jury's 2nd question was that the two appellants could both be found guilty or both not guilty, and this was a correct direction.

45.  In my view, when the jury asked their 2nd question, having invited submissions as he did, it would have been better if the judge had not answered it with a simple “No”.  He should have supplemented his summing up with an explanation, as shortly as may be, of the law which dictated that answer.  It may well be that that response was inadequate even if the relevant law had not been altered by statute.

46.However that may be, I do not think that the answer given could be said to be a proper direction to accord with the present state of the law and the applicable authorities.  It would not be justifiable to regard the monosyllabic answer as an adequate direction to the effect that because of the similarity of the evidence against each defendant the only fair verdict would be both guilty or both not guilty.

47.I am therefore unable to agree with the Court of Appeal that the answer to the jury's 2nd question was correct even if that Court was right in its own assessment that the evidence against each of the appellants was “of equal weight or nearly so” to use Lord Lane's expression in Longman and Cribben.

48.  This would, in my view, dispose of the appeal in the appellants' favour but I will express my opinion briefly on an important question which was discussed at some length during the hearing of this appeal. 

49.  With respect, I think that Lord Lane was right to stress, as he did in his judgment in Longman and Cribben, that the jury must be told, following a both guilty or both not guilty direction, what they should do if they were unsure of the guilt of one of the two defendants on trial.  When the judge gives such a direction it is based on his own assessment of the evidence as it has emerged.  Questions of the weight and truth of the evidence are, of course, ultimately for the jury and so the judge must make sure that the jury understand that if they are in doubt about the guilt of either defendant, they must acquit them both. 

50.While no particular form of words is necessary, the jury must be so directed in plain terms and I would not have been satisfied that the summing up, including the answer to the jury's 3rd question, in effect would have made Lord Lane's admonition unnecessary.

51.I would quash the convictions and set aside the sentences and, since the interests of justice so require, would order that the appellants be retried before the Court of First Instance on a fresh indictment for the offence of which they were convicted at the original trial.  I would also order that the appellants be remanded in custody until they are arraigned on the fresh indictment before the Court of First Instance, such arraignment to take place with all due expedition.  However, either appellant would be at liberty to apply for bail pending his arraignment.  Any such application to be heard and determined by a single permanent judge of this Court.

Sir Thomas Eichelbaum NPJ :

52.I agree with the judgment of Mr Justice Fuad NPJ.

Mr Justice Bokhary PJ :

53.The Court unanimously allows the appeals and makes the orders set out in the concluding paragraph of Mr Justice Fuad NPJ's judgment.

Mr Andrew Bruce SC (instructed by Messrs Kong & Chang and assigned by the Legal Aid Department) for the appellants

Mr Peter Callaghan (instructed by the Department of Justice) for the respondent