Read the full judgment text of CACC 000189/2005 on BabelCite. This Court of Appeal judgment was delivered on 29 May 2006 before Ma CJHC, Stuart-Moore V-P, Stock JA.
Criminal law – conspiracy to defraud – conspiracy to pervert course of public justice – conspiracy to steal – removal of stones from unleased land – unauthorized excavation in unleased land – Theft Ordinance (Cap 210) s.9 – Crimes Ordinance (Cap 200) ss.159A, 159C – Land (Miscellaneous Provisions) Ordinance (Cap 28) ss.3, 7, 8, 10 and Schedule – Hong Kong Disneyland artificial lake project – supply of rocks from Tung Chung River – Tung Chung Rural Committee – false representations to Government about alleged flooding and authorization to excavate – excavation was environmental vandalism done for profit – chairman and vice-chairman of TCRC charged as Applicants – whether actual detriment required for conspiracy to defraud – court holds intent to cause detriment suffices and actual detriment is not necessary, with detriment not restricted to economic loss where the victim is a public authority – prejudice established by delay in initiation of criminal proceedings and in time spent investigating false allegations – whether agreement can be inferred from silence for conspiracy to pervert course of public justice – court holds that silence combined with subsequent conduct, here police statements matching the suggested false narrative, suffices to infer agreement – whether false statements to authorities have tendency to pervert course of justice – court holds tendency established by need to investigate false claims and possibility of deflecting legitimate inquiry – whether charges of conspiracy to steal, removal of stones and unauthorized excavation are duplicitous – court holds no, the charges are legally distinct – application to treat abandonment of sentence appeal as nullity – court applies HKSAR v Lai Siu Cheung test that the applicant's mind did not go with the act of abandonment – court holds wrong advice on merits of appeal does not suffice and alleged mistaken belief was not credibly established where applicant had legal representation – 1st Applicant (Law Kam Fai) convicted on Charges 1, 2, 4, 6 and 7 and sentenced to 24 months' imprisonment with 3 months' reduction for public service plus fines totalling HK$10,000 – 2nd Applicant (Li Kwai Mo) convicted on Charge 2 and sentenced to 11 months' imprisonment, sentence completed – 2nd Applicant's sentence application stood dismissed on abandonment – 1st Applicant's nullity application dismissed – all applications for leave to appeal against conviction dismissed
Legal issues: Whether conspiracy to defraud requires proof of actual detriment · Whether agreement can be inferred from silence in conspiracy to pervert course of public justice · Whether false statements to authorities have tendency to pervert course of justice · Whether charges 4, 6 and 7 are duplicitous · Whether 1st Applicant's abandonment of sentence appeal should be treated as nullity
Outcome: Applications for leave to appeal against conviction by both Applicants dismissed. 1st Applicant's application to treat abandonment of his sentence appeal as a nullity dismissed. 2nd Applicant's earlier abandonment of his sentence appeal stands as dismissed.