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HEADNOTE
Conspiracy outside Hong Kong to commit an offence within Hong Kong.
Held that Hong Kong Courts have jurisdiction to try such a case, if acts in furtherance of conspiracy are committed within Hong Kong by a conspirator or by a guilty or innocent agent.
(Obiter). There may be such jurisdiction even if no acts, in furtherance of a conspiracy formed out of Hong Kong, are done within Hong Kong, if the conspiracy is intended to effect a breach of the law in Hong Kong.
IN THE COURT OF APPEAL
1987 No.75
(Criminal)
BETWEEN:
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THE ATTORNEY GENERAL
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Appellant
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and
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YEUNG Sun-shun
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1st Respondent
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LEE Ming-sun
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2nd Respondent
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Coram: Roberts, C.J., Hunter, J .A. & Power J. A.
Date of Hearing: 14th & 15th May 1987.
Date of Judgment: 22nd May, 1987.
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J U D G M E N T
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Roberts, C J.
Preliminary
1. This is a case stated, at the instance of the Attorney General, under section 84 of the District Court Ordinance (Cap.336) against a verdict of acquittal entered by a District Judge against the two respondents, who faced the following charges -
"First Charge
Statement of Offence
Conspiracy to import unmanifested cargo, contrary to common law and section 84(l)(a) of the Import and Export Ordinance, Chapter 60.
Particulars of Offence
YEUNG Sun-shun and LEE Ming-sun, between the 8th day of December, 1985 and the 13th day of December, 1985, conspired together and with KWOK Sek-tim in Macau and Hong Kong to import into Hong Kong unmanifested cargo, namely, 619 pieces of ivory tusks, otherwise than in accordance with the provision of the Import and Export Ordinance, Chapter 60.
Second Charge
Statement of Offence
Conspiracy to import scheduled species without a licence, contrary to common law and section 4(l) of the Animals and Plants (Protection of Endangered Species) Ordinance, Chapter 187.
Particulars of Offence
YEUNG Sun-shun and LEE Ming-sun, between the 8th day of December, 1985 and the 13th day of December, 1985, conspired together and with KWOK Sek-tim and other persons unknown in Macau and Hong Kong to import into Hong Kong scheduled species, naE1ely, 619 pieces of ivory tusks without a licence, otherwise than in accordance with the provisions of the Animals and Plants (Protection of Endangered Species) Ordinance, Chapter 187. ''
2. At the conclusion of the hearing on 28th August, 1986, at which neither respondent gave evidence, the District Judge dismissed both charges, finding that “there were no acts done by the respondents or any alleged co-conspirators, in furtherance of either the conspiracy to import scheduled species without a licence and therefore neither offence was committed in Hong Kong.”
Findings of Fact
3. The Judge found the following fact s to be proved -
(a) On 12 December IS65 the vessel 'Hang On No.2' was intercepted by Customs Officers in Hong Kong waters. It had sailed directly from Macau to Hong Kong.
(b) On board the vessel was found (inter alia), 619 ivory tusks. They were sealed inside 37 gunny bags in the cargo hold. The ivory tusks were unmanifested being described as 'bone material', a description which after hearing evidence, I was satisfied that was not a mistaken description but one that was used in order to deceive.
(c) The ivory tusks I found to be a scheduled species under the Animal and Plants (Protection of Endan5ered Species) Ordinance, Cap. 107.
(d) The First Respondent YEUNG Sun-shun is known as YEING Shun to fellow traders. He is an ivory engraver who works from his home. He has been in the business for twenty years and employs two assistants. He has friends and fellow traders in Macau. He buys up to $200,000 worth of ivory in Hong Kong at a time. He stores the ivory purchased in his home. He was in Macau on 4-5, 7 and 11 December 1985. In December 1985 he admitted that he knew the Second Respondent as a fellow trader and friend for a year. When questioned by Customs Officers on arrest he was carrying the Second Respondent's business card.
(e) The Second Respondent LEE Ming-sun, is an ivory merchant who lives in Macau, but his business is conducted in Hong Kong. He was in Macau from 4-9, 10-12 and 13-17 December for three to four months. He knew the First Respondent's telephone number. He admitted that he had met the first Respondent on 21st December and also between 17th-21st December and met him accidentally, in Macau about 23rd November 1985.
(f) The Second Respondent admitted he had known (PW4) KWOK Sek-tim for about one and a half years. Kwok worked in Macau in the Shipping Company which owns the vessel 'Hang On No. 2'. In the past KWOK had arranged the shipping of some machines for the Second Respondent from Macau to Hong Kong.
(g) KWOK Sek-tim, the shipping clerk admitted he has known the Second Respondent for three to four years. Towards the end of 1985, the Second Respondent asked KWOK to handle some exporting documents for 'bone material or ivory' to go from Macau to Hong Kong. KWOK agreed. The Second Respondent told KWOK an address to which the ivory was to be sent. The telephone number was that of the First Respondent.
(h) KWOK telephoned to the First Respondent some days before the ivory was loaded on board the 'Hang On No. 2' and the person who answered agreed to his preparing export papers. The First Respondent received a telephone call on 9 December 1985. The party on the line said: 'Hi, YEUNG Shun. The goods samples are very nice. Do you want to place any orders? '
(i) On the day the ivory was loaded on the 'Hang On No.2', the Second Respondent handed the ivory over to KWOK. The Second Respondent also made a payment to KWOK as a personal incentive.
(j) No one came to collect the ivory when the vessel berthed in Hong Kong. KWOK was informed of this by the Hong Kong representative of his company. KWOK telephoned the Telephone number of the First Respondent and told the person who answered to go to the Tai Cheong Shipping Company’s pier to collect 'the goods'.
(k) I am left in no doubt that the First Respondent, Second Respondent and KWOK did agree to have sent from Macau to Hong Kong the elephant tusks seized by the officers of the Customs and Excise Services.
(l) The sized tusks were unanifested under the Import and Export Ordinance, Cap.60.
(m) No licence to import the seized tusks would have been issued by the Hong Kong Authorities under the Animal and Plants (Protection of Endangered Species) Ordinance, Cap. 187 as there was no evidence of where the tusks came from or how they got to Macau. As their legitimate origin could not be established a licence would have been refused.
(n) The First Respondent, Second Respondent and KWOK all knew that a licence under Cap. 187 to import the seized tusks, was required.
(o) The misdescription of the tusks was occasioned by the Second Resopondent’s instructions to KWOK and subsequently KWOK’s notation on the manifest.
(p) The Second Respondent was the shipper, the First Respondent was the consignee and KWOK the agent for the shipping of the tusks to Hong Kong.”
Ruling of Judge
4. Having so found, the Judge decided that I there was no evidence to support a finding or an inference on either charge that “the agreement or any part of it was made in Hong Kong".
5. In respect of the First Charge he ruled as follows -
"In respect of the charge conspiracy to import unmanifested cargo that in my view was completed as soon as the goods were loaded on the 'Hang On No.2' and the misdescription of them entered on the manifest Nothing further needed to be done once the misdescription of the goods on board was written on the manifest.”
6. In relation to the Second Charge he ruled as follows -
"In my view of the evidence there was not one act done by any conspirator in Hong Kong to facilitate the importation of those goods into Hong Kong. Doubtless by his agreeing to accept the tusks [the First Respondent] was authorising and agreeing to and causing unlicensed unmanifested goods to be sent to Hong Kong and [the Second Respondent] of consigning and so causing unlicensed umnanifested goods to be sent to Hong Kong and [KWOK] by misdescribing the goods and placing them on board without having a Hong Kong import licence for them was causing them to be imported into Hong Kong.
But search the evidence as I might I cannot find anything done or even said by any of the named conspirators in Charge [1] or unnamed conspirators in Charge [2] that does amount to an act by any in Hong Kong in furtherance of the conspiracies.
There is nothing to connect [KWOK] or the [Second Respondent] with the telephone call the: [First Respondent] received in Hong Kong nor to connect the [First Respondent] with the telephone call made to his number by [KWOK] from Macau.
The act of putting the tusks on board the vessel for transportation to Hong Kong was the last act done in furtherance of the conspiracy and that was done in Macau. Having found that the agreement was entered into in Macau and that no act of any of the conspirators has been proved done in Hong Kong, the acts designed to be done and the object to be achieved were not done in Hong Kong but were acts to facilitate the possession of the illegally imported misdescribed tusks in Hong Kong.”
7. He found that, following of R. v. Peter LIU Po-shing (l) and DPP v. Doot(2); the acts of innocent agents in bringing the misdescribed unlicensed goods into Hong Kong was insufficient to find jurisdiction.
8. He concluded by ruling:
"If I had jurisdiction, conferred by the sailing into Hong Kong; waters of the 'Hang On No. 2' with the goods on board then that act caused by and brought about as the result of the agreement made in Macau would lead to conviction on the basis that it was an act in furtherance of the conspiracy carried out in Hong Kong.”
9. The question of law arising for the of this court, as set out in the case stated, is whether the Judge was correct in law in on both charges, there was no act done in Hong Kong of the furtherance of the conspiracy so as to give to the District Court.
10. In order that we should be able to discuss the issues more widely, we have, with the consent of both parties, amended the question to be asked as follows -
“Was I correct in law in ruling that, on the facts as found by me, the Hong Kong Courts had no jurisdiction to try the charges?"
Judge's Ruling
11. The Judge based his ruling on R. v. Peter LIU Po Shing([1]) and on D.P.P. v. Doot.([2])
12. The LIU Case, however, w~s concerned with a conspiracy to defraud persons in Hone; Kong by persons within Hong Kong, where the conspiracy was formed and implemented.
13. In the course of his judgment, Roberts, C.J. quoted a passage from Lord Tucker's observations in Board of Trade v. Owen([3])
"The gist of the offence being the agreement, whether or not the object is attained, it may be asked why should it not be indictable if the object is situate abroad. I think the answer to this is that it is necessary to recognize the offence to aid in the preservation of the Queen's peace and the maintenance of law and order within the realm with which, generally speaking, the criminal law is alone concerned."
14. The Chief Justice continued -
“From this case there can be derived the general principle that a conspiracy in Hong Kong which has as its object the commission of a crime outside Hong Kong, is not triable within the jurisdiction.”
15. We do not see how LIU(1) can be taken as expressing any view as to jurisdiction over conspiracy conceived outside Hong Kong, since it was dealing with a conspiracy which was formed within Hong Kong, even though some of the acts which gave effect to it took place outside Hong Kong.
16. As will be seen, we do not think that the Judge has correctly interpreted Doot(2).
Conspiracy at common law
17. Conspiracy can be simply defined as an agreement of two or more persons to do an unlawful act, or to do an unlawful act, or to do a lawful act by unlawful means.
“The crime of conspiracy is completely committed) the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence that anyone thing should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete; it was completed when they agreed. " (See R. v. Aspinall(4). )
18. A conspiracy does not end with the making of the agreement. It will continue in being so long as there are two parties to it intending to carry out the design. (See D.P.P. v. Doot.)
19. Thus the agreement of the respondents, which was reached in Macau, to do unlawful acts within Hong Kong, namely to import unmanifested cargo and specified cargo without the necessary licence, was a conspiracy at the moment of agreement, but continued until it was discharged by the seizure of the tusks.
20. The important issue is whether, and if so in what circumstances, a conspiracy formed out of the jurisdiction, to commit a crime in Bong Kong, is indictable in Hong Kong.
21. In D.P.P. v. Doot(2i), the defendants formed, in Belgium and Morocco, a conspiracy to import drugs into the United Kingdom, contrary to the Dangerous Drugs Act 1965. In pursuance of this plan, vans with cannabis concealed in them were shipped from Morocco to England.
22. The Court of Appeal certified, as fit for the following consideration of the House of Lords, question of law -
"Whether an agreement made outside the jurisdiction of the English Courts to import a dangerous drug into England and carried out by importing it into England, is a conspiracy which can be tried in England? "
23. All the Law Lords agreed that the English Courts would have jurisdiction, as the following extracts from their speeches show -
24. Lord Wilberforce, at p.818 -
“Often in conspiracy cases the implementing action is itself the only evidence of the conspiracy - this is the doctrine of overt acts. Could it be said, with any plausibility? that if the conclusion or a possible conclusion to be drawn from overt acts in England was that there was a conspiracy, entered into abroad, a charge of conspiracy would not lie? Surely not: yet, if it could, what difference should it make if the conspiracy is directly proved or is admitted to have been made abroad? The truth is that, in the normal case of a conspiracy carried out, or partly carried out, in this country, the location of the formation of the agreement is irrelevant: the attack upon the laws of this country is identical wherever the conspirators happened to meet; the ‘conspiracy’ is a complex, formed indeed, but not separably completed, at the first meeting of the plotters.
A legal principle which would enable concerting law breakers to escape a conspiracy charge by crossing the Channel before making their agreement or to bring forward arguments, which we know can be subtle enough, as to the location of agreements, or, conversely, which would encourage the prosecution into allegation or fiction of a renewed agreement in this country, all this with no compensating merit, is not one which I could endorse.
In addition to these considerations, there is substantial authority, both English and American, that jurisdiction exists to try in our courts conspiracies entered into abroad but implemented here. My noble and learned friend) Lord Pearson, has quoted the English and some of the United States cases - there are others there which could be cited. I adopt and do not repeat his analysis. It establishes, in my opinion, that under existing principles of common law, supported by authority, the offence charged was triable in England.”
25. Viscount Dilhorne at p.825 -
“The conclusion to which I have come after consideration of these authorities and of many others to which the House was referred but to which I do not think it is necessary to refer is that though the offence of conspiracy is complete when the agreement to do the unlawful act is made and it is not necessary for the prosecution to do more than prove the making of such an agreement, a conspiracy does net end with the making of the agreement. It continues so long as the parties to the agreement intend to carry it out. It may be joined by others, some may leave it. Pro8f of acts done by the accused in this country may suffice to prove that there was at the time of those acts a conspiracy inexistence in this country to which they were parties and, if that is proved, then the charge of conspiracy is within the jurisdiction of the English courts, even though the initial agreement was made outside the jurisdiction.”
26. Lord Pearson at p.827 -
“On principle, apart from authority, I think (and it would seem the Court of appeal also thought) that a conspiracy to commit in England an offence against English law ought to be triable in England if it has been wholly or partly performed in England. In such a case the conspiracy has peen carried on in England with the consent and authority of all the conspirators. It is not necessary that they should all be present in England. One of them, acting on his own behalf and as agent for the others, has been performing their agreement, with their consent and authority, in England. In such a case the conspiracy has been committed by all of them in England. Be it granted that 'All crime is local' and 'The jurisdiction over the crime belongs to the country where the crime is committed, ... ': per Lord Halsbury L.C. in Macleod v Attorney General for New South Wales [1891] A.C. 455, 458. The crime of conspiracy in the present case was committed in England, personally or through an agent agents, by all the conspirators .
The balance of authority is in favour of the view that the English courts have jurisdiction in a case such as this.”
27. Lord Salmon, at pp.832-833 –
“It is obvious that a conspiracy to carry out a bank robbery in London is equally a threat to the Queen's peace whether it is hatched, say, in Birmingham or in Brussels. Accordingly, having regard to the special nature of the offence a conspiracy to commit a crime in England is, in my opinion, an offence against the common law even when entered into abroad, certainly if acts in furtherance of the conspiracy are done in this country. There can in such circusmtances be no doubt that the conspiracy is in fact as well as in theory a real threat to the Queen's peace.
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If a conspiracy is entered into abroad to commit a crime in England, exactly the same public mischief is produced by it as if it had been entered into here. It is unnecesary for me to consider what the position might be if the conspirators came to England for an entirely innocent purpose unconnected with the conspiracy. If, however, the conspirators come here and do acts in furtherance of the conspiracy, for example, by preparing to commit the planned crime, it cannot, in my view, be considered contrary to the rules of international comity far the forces of law and order in England to protect the Queen's peace by arresting them and putting them on trial for conspiracy whether they are British subjects or foreigners and whether or not conspiracy is a crime under the law of the country in which the conspiracy was born."
28. Thus Doot(2) establishes that a conspiracy formed abroad, to a commit an offence in England, is triable in England, if acts in furtherance of the conspiracy are carried out in England in furtherance of it.
Acts of agents
29. The House was dealing with a case in which the conspirators themselves did acts within England in furtherance of the conspiracy. It was not called upon to decide whether it would be sufficient to give jurisdiction to the English courts if acts in furtherance of it were done, not by a conspirator) but by an agent, innocent or guilty.
30. This question was considered in R. v. Brisac(5), referred to by Lord Dilhorne and Lord Pears on in Doot(2), as one of the prevalent authorities. In Brisac, the defendants, in furtherance of a conspircy entered into on the high seas, had caused vouchers to be delivered, with the intention of defrauding persons in Middlesex, through innocent agents. Because of the acts of those agents, it was said that the conspirators could be taken to have committed offences in Middlesex.
31. At p. 172 of the report of Brisac, Grose, J. held that the act of delivery of the vouchers in Middlesex was the act of the defendants “for the persons who innocently delivered the vouchers were mere instruments in their hands for that purpose.”
32. In White v. Ridley(6); the applicant delivered a box to an air carrier in singapore for carriage to Australia. The box contained a prohibited import. On its arrival in Australia; it was impounded by customs officers.
33. In finding that the applicant had been rightly convicted of importing the prohibited import (cannabis), Gibbs, J. commented -
“The applicant did nut himself bring the cannabis into Australia; it was brought in by the airline. However it is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender. That is so not only where the agent lacks criminal responsibility,' as, for example, when he is insane or too young to know what he is doing, but also where the agent, although of sound mind and full understanding, is ignorant of the true facts and believes that what he his is doing is lawful. Thus if A sends out B with a forged bank note for the purpose of passing it, and B does so, being ignorant that it was forged, A is guilty of uttering and publishing the note as true, since 'where an innocent person is employed for a criminal purpose, the employer must be answerable': R. v. Palmer and Hudson [1804] 1 Bos.& Pul. (N.R.) 96, at p.97 [127 E.R. 395, at p.396]. If A gives B false particulars to enter in a register, and B enters them in the belief that they are true, A is guilty of making the false entry in the register: Reg. v. Butt (1884) 15 Cox C.C. 564. If A, planning a forgery, procures B, an innocent engraver, to make a plate, A is guilty of making and engraving the plate: Reg. v. Bull and Schmidt (1845) 1 Cox C.C. 28l. So it has been held that where the defendants fabricated false vouchers on the high seas and posted them to a third person who innocently delivered them in Middlesex, a delivery by the defendants took place in Middlesex so that the defendants were triable there, 'for the persons who innocently delivered the vouchers were mere instruments in their hands for that purpose; the crime of presenting these vouchers was exclusively their own, as the crime of administering posion through the medium of a person ignorant of its quality would b8 the crime of the person procuring it to be administered.”
34. In R. v. Johnston(7) J, in the Court of Appeal of New Zealand, the applicant had been convicted of conspiracy to import hashish into New Zealand, having entered, in the United Kingdom, an agreement to arrange for the drugs to be imported into New Zealand by post.
35. A letter containing hashish was intercepted by customs officers on arrival in Auckland. Johnston had by then returned to New Zealand himself.
36. Richardson, J, delivering the judgment of the Court, had no difficulty in deciding that the conspiracy was triable in New Zealand, although no acts in furtherance of it had been taken by a conspirator -
“We have no doubt, however, that the facts of the case bring it squarely within the first limb of s.7. The dispatch of the letter to New Zealand was an act done in furtherance of the continuing conspiracy agreement to which Johnston was - party. Its arrival in New Zealand was an object which - the conspirators wished to achieve. The steps taken by airline and governmental officials in the handling of the letter on arrival in New Zealand were acts within the contemplation of the conspirators in the performance of the continuing conspiracy. In that sense they formed part of the continuing offence.”
37. A further example of the willingness of Commonwealth Courts to assume jurisdiction where the only acts within the jurisdiction were those of an agent can be seen in R. v. Skewes (8) 1 in the Court of Criminal Appeal for Victoria. Young, C.J. at p.281 commented -
"Moreover the learned trial judge correctly explained the matter to the jury. On more than one occasion his Honour told the jury that the court had jurisdiction if an overt act (even a lawful one) in furtherance of the conspiracy was done in Victoria by any one or more of the accused whom the jury found to be parties to the conspiracy, if one of the conspirators came into Victoria and did the acts in Victoria in pursuance of the conspiracy or if an overt act had been done in Victoria in furtherance of the conspiracy even if the act were done by an agent innocent of all complicity in the conspiracy or innocent even of the existence of the conspiracy provided that the act of the agent was procured by one or other of the accused.”
38. As a matter of public policy, it would surely be outrageous if, a conspiracy having been hatched abroad, a conspirator could not be tried because the only acts within the jurisdiction were committed by an innocent agent.
39. For example, A and B in Macau conspire to murder X in Hong Kong. They post to X a parcel containing a bomb which explodes, but does not injure, X when delivered to his house. The delivery is an act by an innocent agent in furtherance of the crime, but the preservation of the Queen 's peace surely requires that the conspirators should fall within the jurisdiction of a Hong Kong court.
40. In a similar way, we see no logic in the suggestion which was put to us, and which is referred to in passing in some of the cases, that the conspirators may not be subject to the jurisdiction of the court when the object of the conspiracy is achieved, e.g. Viscount Dilhorne in Doot(2) at p.823E, expresses the view (obiter) that the English Courts have jurisdiction to try a conspiracy formed abroad only if the evidence shows that the conspiracy wherever and whenever it was formed was in existence when the accused were in England.
41. Such a conclusion does not seem to be sustainable if it is accepted that it is sufficient to found jurisdiction to show that an agent committed an act within the jurisdiction in furtherance of the conspiracy.
42. Once more, the principle of preserving the peace would be gravely offended by such an artificial hurdle. If a conspiracy is formed in Macau by A and B to commit a crime in Hong Kong, as in the parcel bomb example given above, why should they be immune from prosecution if they arrive in Hong Kong after the bomb has exploded and the conspiracy is thus at an end, and yet be liable if they arrive before it blows up.
43. Nor do we see any justification for attempting to distinguish between an innocent visit to Hong Kong by the conspirators and a visit the object of which is to further the conspiracy, so far as an assumption of jurisdiction is concerned.
44. In our view, the Hong Kong courts have, and should assume, jurisdiction to try those who are charged with a conspiracy formed out of the jurisdiction if any act has been committed within the jurisdiction in furtherance of the agreement.
45. Such jurisdiction is not affected if -
(a) The act is performed by an agent, innocent or guilty;
(b) No conspirator has carried out any such act within Hong Kong;
(c) No conspirator has entered the jurisdiction until the conspiracy is discharged.
46. On the facts found by the Judge, the respondents conspired in Macau to commit offences in Hong Kong.
47. As soon as the ivory was carried into Hong Kong waters, these were acts of performance of the conspiracy within the jurisdiction. They were innocent acts, in the case of the Master of the vessel, who had no knowledge of the offence, and guilty acts by the Assistant Purser, who had misdescribed the ivory on the manifest and knew what was contemplated.
48. It has not been necessary for us to consider the further question of whether a conspiracy, formed abroad, to commit an offence in Hong Kong, is within the jurisdiction of the Hong Kong courts if no acts in furtherance of the conspiracy are committed within Hong Kong.
49. In principle, however, we are not unsympathetic to the view, expressed in recent cases, that the territorial basis for jurisdiction is becoming outmoded, and that in such circumstances the Hong Kong courts should assume jurisdiction upon the basis that -
(a) the conspiracy is aimed at Hong Kong and intended to brin6 about a breach of the peace here;
(b) since the conspiracy is not directed at the residents of the country where it is entered into, the courts of that country could raise no reasonable objection to this course on the ground of comity.
50. This approach finds support in Treacy v. D.P.P. (9), per Lord Diplock at p.561-2; Litman v. The Queen(10), in the Supreme Court of Canada; and Mharapara v. The State(11), in Zimbabwe.
51. Thus those who conspire in Macau to send a parcel bomb to Hong Kong should be triable here, even if for some reason the parcel does not arrive within the territory.
52. For the above reasons, we are satisfied that the Judge was wrong in declining jurisdiction. We therefore reverse the verdict of acquittal and record a conviction against both respondents.
Section 19 of the Criminal Procedure Ordinance (Cap.221)
53. Counsel for the appellant put forward an alternative argument, namely that the Hong Kong Court would have jurisdiction by virtue of Section 19 of Cap. 221 which states -
“In any indictment for an offence committed on the high seas or in foreign parts, an allegation that the person injured was, at the time of the offence charged, in the peace of the Queen, shall be a sufficient allegation of the jurisdtction of the court to hear and determine the case.”
54. The section appears in a part of the Ordinance which is concerned with the contents and amendment of indictments.
55. We do not consider that it was intended to confer a wider jurisdiction, by this little known section which, so far as we know, has never been the subject of judicial comment since it was enacted in l899, than is available at common law or by statutory provision dealing specifically with the subject of jurisdiction.
56. All that the section does, we think, is to provide that, if an indictment contains an averment that an offence was committed on the high seas or in foreign parts, it shall be sufficient to allege that the person injured was in the peace of the Queen.
57. No doubt this was intended to apply to those cases where jurisdiction had already been conferred by statute on Hong Kong courts to try cases outside Hong Kong, if the Queen subjects were involved - e.g. the Offences at Sea Act 1799.
58. In passing, since the matter was raised by the Crown, we observe that Section 1 of that Act would have been of no assistance to the Crown, since it only applies where an offence occurs “on the high seas”. The latter phrase, by a series of surprising extensions, probably means any waters outside the territorial waters of Hong Kong.
59. But, whatever seas it covers, it does not include the shore. And this conspiracy, even if acts in furtherance of it took place at sea, was. formed on land in Macau.
Section 84 of the District Court Ordinance (Cap. 336)
60. This section is in some respects unsatisfactory, since paragraph (c) of section 84 provides that the Court of Appeal shall –
“(i) if it is satisfied that there is no sufficient ground for interfering, dismiss the appeal; or
(ii) reverse the verdict or order and direct that the trial be resumed or that the accused be retried as the case may be, or find him guilty, record a conviction and pass such sentence on him as might have been passed on him by a judge;”
61. He do not consider it appropriate that this court should be obliged to deal with the question of sentence itself, because -
(a) a case stated contains only a selection of facts and may omit some which have a bearing on sentence, though not on the questions of law involved;
(b) the respondent, if sentenced by this court, has effectively no right of appeal, as he would have if the matter were returned to the trial judge for sentence;
(c) the trial judge is in a far better position, by reason of his close knowledge of the whole of the case, than this court, to assess sentence.
62. However, we do not think that it is to return the case to the Judge for sentence, of the wording of the section. This gives options, on reversing the verdict -
(a) order the trial to be resumed. This would be apposite only if the trial had not been completed – e.g. if the Judge had found no case to answer. But if there has been an acquittal at the conclusion of a trial, there is no trial that can be resumed – i.e. continued.
(b) order a retrial. This would be appropriate in some cases – e.g. if we had ruled that evidence had been wrongly excluded by the Judge.
(c) record a finding of guilt and pass sentence.
63. We suggest for the attention of the Legislature that consideration should be given to an amendment to section 84(c) so as to 5iv8 power to this court, as an alternative, to convict and remit the case to the trial judge for sentence.
64. It is now our task to record a finding of guilt and to pass sentence on the respondents.
Mr. G.J.X. McCoy, Senior Crown Counsel, for the Appellant /Attorney General
Mr. F.Eddis, Q.C., with Mr. J. Pow (Y.K. Poon & Co.) for the Respondents
[1] Cr. App. 520/84
[2] [1973] A.C. 807
2i [1973] A.C. 807, 818
[3] [1957] A.C. 602, 625
4 [1876] 2 Q.B.D. 48
5 4 East 154
6 [1978] H.C. of A.242
7 CA 49/86 (Court of Appeal of New Zealand)
8 [1981] 7 A.Crim.R. 276, 281
9 [1971] A.C. 537, 561-2
10 [1985] 21 C.C.C. (30) 206
11 [1986] L.R.C. (Const.) 235
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