Po Koon Tai and Others v. The Queen
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CACC000836/1979
IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 836 OF 1979 -----------------
----------------- Coram: Hon. Leonard J.A., Addison, J., Garcia J. in Court Date of Judgment: 25 June 1980 ----------------- JUDGMENT ----------------- Leonard, J.A.: 1. The judgment in this case will be delivered by Addison J. whose decision I agree with. Addison, J.: 2. The appellants were convicted in the District Court on the 30th August 1979 of conspiracy, contrary to Common Law and were each sentenced to imprisonment for 4 years. They now appeal against both conviction and sentence. 3. The particulars of the offence were these:-
4. A common ground of appeal is that the offence is one not known to the law. Two additional grounds of appeal were raised on behalf of the 2nd appellant, Kwok Kan-wong, who was the proprietor of the Shing On company and a part owner of the ship "Tak On". These are:-
5. Of this latter ground of appeal it is perfectly clear that the agreement which formed the basis of the Crown's case excluded the refugees and was confined to those who agreed to procure their landing in Hong Kong. That the refugees landed was evidence of the successful outcome of the conspiracy. 6. Counsel for the 3rd appellant, Leung Kwai-lam (the master of the "Tak On" which brought the refugees from Vietnam to a place just outside the territorial waters of Hong Kong) adopted the foregoing grounds of appeal. He also argued that for the conviction to be sustainable the Crown had to prove mens rea on the part of the principal offenders, the refugees, and this, he claimed, had not been done. In fact in his most praiseworthy ruling on the submission of no case to answer the learned trial judge considered it was unnecessary to determine that point but he added that if he were wrong in his conclusion, he found from the evidence that they had mens rea. He also referred to the appellants' admission of fact made at the outset of the trial under section 65C of the Criminal Procedure Ordinance, Cap. 221. 7. That admission was in these terms:-
8. Counsel for the appellants have throughout maintained that they were not conceding by that admission that the refugees committed an unlawful act simply by landing in Hong Kong. It is their argument that the refugees were not shown "not to have landed" by virtue of the provisions of section 38(2). 9. It is clear from the facts of the case that these refugees were taken off the "Tak On" by the 1st appellant who was the master of a fishing vessel, and who sailed them to a lonely peninsula in Sai Kung where they spent the night of the 5th February on the beach. They were arrested on the following day and subsequent to their examination by an immigration officer under section 4 of the Immigration Ordinance, Refusal Notices were served on each of them on the 6th February. 10. To determine whether the refugees committed an unlawful act it is necessary to refer to various sections of the Immigration Ordinance, Cap. 115. Those which are relevant provide as follows:-
11. The appellants' argument is that no designated place of entry is provided for under the Ordinance: hence if a person lands without permission intending to submit himself to examination then until such time as permission to land is given or refusal made known the person is not in breach of section 38(1)(a) because, by reason of section 38(2) he is deemed "not to have landed". Further it is suggested that when Refusal Notices were served the refugees were then in custody and could not for that reason commit any offence. Superimposed on this argument is an additional one that the appellants were not shown to have agreed that the refugees should not submit themselves for examination. 12. On the authority of the decisions of the House of Lords in D.P.P. v. Bhagwan [1970] 2 ALL E.R. 97 and D.P.P. v. Withers [1974] 3 ALL E.R. 984 it was submitted that if the case for the prosecution amounted to nothing more than a conspiracy on the part of the appellants to defeat the spirit and intendment of the Immigration Ordinance, Cap. 115 then such would be insufficient to support the conviction. The prosectuion had, of course, to pin point the law which the conspirators had contravened. 13. Such then, in outline, was the argument that the refugees had committed no offence in landing in Hong Kong. 14. In reply to this argument the Crown maintained that section 38(2) only came into operation where there was an entry into Hong Kong in the "normal accepted manner", that is, by ship or by aircraft, when, in such circumstances, anchorages and approved landing places are designated in the Immigration (Anchorages and Landing Places) Order. Mr. Duffy, on behalf of the prosecution argued that section 38(2) would not apply to a covert entry, as in this case. 15. He further contended that whereas a person may land without permission under section 38(2) nevertheless he had to do so "for the purpose of examination under section 4(1)(a) in accordance with arrangements in that behalf approved by the Director" and he had also to "submit himself forthwith to such examination." It was the Crown's case that these persons never entertained such intention. 16. There was evidence that in the approach to the territorial waters of Hong Kong the refugees concealed their presence on board so as not to be spotted by aircraft and they were told to say they had come to Hong Kong by wooden boats. On the facts of this case it would be contrary to plain common sense to imagine the immigrants had any intention of presenting themselves "forthwith" or at any other time before an immigration officer. Clearly they had mens rea. They were therefore in breach of section 38(1)(a). 17. Having disposed of this ground of appeal I turn now to the principal ground, viz that the offence of which the appellants were convicted is one unknown to law. 18. Section 63A of the Immigration Ordinance, which is cited above specifically refers to a charge of "conspiracy to aid, abet, counsel or procure the commission by another of an offence contrary to section 38(1)". Counsel for the Crown neither relies upon that reference as proof of its existence as an offence nor as a statutory enactment of that offence. In my opinion he is right not to do so as quite clearly the draftsman has assumed such an offence to exist. The fact that one who aids and abets, counsels or procures an offence is at common law a party to the offence is a matter distinct from whether the offence charged is one known to the law. In my opinion the answer to this question turns on an analysis of the common law offence of conspiracy. 19. I say this because I find myself not persuaded by Mr. Duffy's argument that the combined effect of section 89 of the Criminal Procedure Ordinance, Cap. 221 and section 82 of the Interpretation and General Clauses Ordinance, Cap. 1 is to create a specific statutory offence of "aiding, abetting, counselling or procuring". For convenience I will deal with his argument now. 20. Section 89 of Cap. 221 reads as follows:-
21. This section is an adaptation of section 8 of the Accessories and Abettors Act, 1861 (see Archbold 39th Edition paragraph 4121) and it is, as the learned judge said in R. v. Bodin (1979) Crim. L.R. 176 a procedural section. By itself it does not enact an offence of aiding and abetting. In other words there is no crime of accessory before the fact until the crime is committed. 22. Section 82 of the Interpretation and General Clauses Ordinance, Cap. 1 should be considered along with section 81 and these are as follows:-
23. In my opinion the offences specified in (i), (ii) and (iii) of subsection 82(1) are not thereby created. What the section says in effect is that where a reference is made in an Ordinance to an offence then that reference shall include a reference to any of those enumerated offences. Thus if a court or tribunal had power under an Ordinance to disqualify a person from election to the Urban Council consequent upon his conviction for an offence, say, theft, then the same power would be exercisable were he to be convicted of an attempt to commit that offence etc. 24. The starting point taken by counsel for the appellants in their argument that conspiracy to aid and abet is an offence unknown to the law is two passages in Smith & Hogan's book on "Criminal Law" 4th Edition. At page 130 the learned authors state under the heading "Secondary Participation and Inchoate Offences"
25. In the immediate preceding paragraph on page 224 appears the following:-
26. There is no doubt in this case that the conspirators intended that the refugees should land unlawfully but the question is whether the charge, as framed, discloses an offence known to the law. 27. Tailoring the question to the broad facts of this case the question may be posed in this way. 28. A, B & C, within the jurisdiction, knowing of the presence in Vietnam of refugees anxious to leave that country and settle elsewhere agree within the jurisdiction to view a ship outside the jurisdiction and there decide to purchase it and arrange that C should sail it to Vietnam where refugees are purposely taken on board and where final arrangement is made by the exchange of signals between A & B in Hong Kong and C in Vietnam that the refugees be carried to a place just outside the territorial waters of Hong Kong and from there landed by D in a fishing vessel on a lonely beach in Hong Kong which landing constitutes an offence under the Immigration Ordinance. In these circumstances are A, B, C & D guilty of conspiracy to aid and abet, counsel and procure the landing of the refugees. This is the issue in this appeal. 29. No question arises as to jurisdiction as it did in D.P.P. v. Doot & ors (1973) 57 Cr. App. R. 60 (H.L.). The sending of the signals arranging the rendezvous and the ultimate arrival of the refugees in Hong Kong dispensed with jurisdictional matters. Looking at their conduct as a whole what, in effect, the appellants sought to achieve was to procure the landing in Hong Kong of these luckless refugees. 30. Put in a nutshell the appellants' basic argument is that aiding and abetting, counselling or procuring is not itself an offence but a mode of participation in an offence. In other words it is contended that what has been laid at the door of these appellants as the "unlawful act" is not the offence of landing refugees but an agreement to aid and abet etc. their landing and to aid and abet a landing is not a criminal act but simply a mode of committing an offence. 31. Furthermore it is submitted that in respect of inchoate offences, or auxilliary offences as they are sometimes called, there should be some uniformity of application, hence it was argued that the principles applicable to the inchoate offences of attempt and incitement should, so far as possible, be extended equally to conspiracy. 32. In support of their argument counsel referred the court to a passage in the judgment of Lord Diplock in D.P.P. v. Nock [1978] 2 All E.R. 654 at page 655 where His Lordship said:
33. Counsel also cited a passage from the judgment of Lord Scarman at page 660 which reads:
34. Those extracts do not mean that the clothing of each separate inchoate offence is to be removed until some familiar appearance of each is achieved. But, however desirable it may be for an equation between inchoate offences there still remains significant differences. The evil of conspiracy, which is the offence before this court, is the element of combination and it is complete on formulation of the agreement irrespective of whether the commission of the act subsequently becomes frustrated by an intervening event or is later abandoned. As Professor Glanville Williams states in his Criminal Law, The General Part, 2nd Edition at page 664:
35. The court was referred to the case of R. v. McShane [1977] Crim. L.R. 737 and the commentary thereon. In that case M sought to persuade her mother who was ill to commit suicide so that she could inherit her grandmother's estate free of her mother's life interest. She was convicted of attempting to counsel or procure her mother's suicide and on appeal it was argued that the offence was unknown to the law. The appeal was dismissed because it was an offence contrary to section 2(1) of the Suicide Act to "aid, abet, counsel or procure the suicide of another" and since every attempt to commit an offence was an offence at common law she was liable. M's liability was therefore not that as a secondary party but as a principal offender. 36. Counsel's argument is that this case is no authority for saying there can be "an attempt to aid and abet" and with his proposition I would agree. 37. The commentary to the report, to which the attention of the court was directed states:-
38. To reinforce the view that there is no offence of attempting to aid and abet counsel cited the decision of the Court of Appeal in R. v. Davis [1977] Crim. L.R. 542. Insofar as I find myself in agreement with counsel's submission it is unnecessary to set out the facts of this case. It was contended that although the Court of Appeal, on the particular facts of the case, held that the acquittal of the co-accused necessarily resulted in the acquittal of the appellant it did not substitute a verdict of guilty of an attempt to aid and abet burglary which the Court of Appeal would have done had such an offence been known to the law. 39. A further case cited to us was R. v. Bodin & anr. (1979) Crim. L.R. 176, a decision of the Lincoln Crown Court. There the defendants were charged with incitement to assault, the particulars of which alleged that they unlawfully incited P to assault G. In fact this was not in accordance with the evidence which showed they invited P to procure another to assault G and no assault took place. A submission of no case to answer was upheld. The learned trial judge ruled that what was being incited was not the commission of the crime of assault but the procurement of that offence and he said he knew of no case where anyone had been indicted on inciting an accessory before the fact. 40. From these cases, and others, it was submitted that the rules applicable to attempt and incitement should equally apply to conspiracy since they are closely related misdemeanours having as their object the punishment of incipient acts towards the Commission of a criminal offence and generally governed by the same principles. 41. It was also argued that under section 1 of the Criminal Law Act, 1977 the words "the commission of any offence" means the commission as a principal in the first degree. That Act is not in force in Hong Kong. It is unnecessary to consider this point though the examples given in the commentary to section 1 of the Act in 1977 Current Law Statutes under the heading "Agrees that a course of conduct shall be pursued" is not irrelevant. There it is said that if A and B agree that B should cause C to commit an offence and C does so, B becomes an accessory to C's act and A & B together, having agreed on that course of conduct, are liable as conspirators. In other words the use in section 1 of the words "agrees ..... that a course of conduct shall be pursued" ensures that liability for conspiracy is not limited to those who agree that one or more of their own number shall pursue the course of conduct contemplated. 42. The Crown maintains that the offence charged is one known to the law. Mr. Duffy's argument is simple. To aid, abet, counsel or procure the commission of an offence is a crime and since a conspiracy comprises an agreement by two or more persons to do an unlawful act therefore they can conspire to aid, abet etc. He points out that in this case the crime was completed. 43. Mr. Duffy argued that it was a non-sequitur to maintain that because an attempt to aid and abet is an offence not known to the law therefore it followed there could not be a conspiracy to aid and abet. In vacuo neither an attempt to aid and abet nor a conspiracy to aid and abet is an offence. He instanced differences in the offences of conspiracy and attempt. If a person, acting alone performs an act sufficiently proximate to the actual crime he may be convicted of attempt. Conspiracy on the other hand involves two people. The parties to a conspiracy need only contemplate that one of them will engage upon a course of conduct which will involve the commission of an offence or an unlawful act. An incitement to conspire matures into a conspiracy on agreement. He pointed out that for a person to be guilty of aiding and abetting, the act done need not be as proximate to the offence as would amount to an attempt. Suppose, he argued, a person entered a bank intending to commit robbery but once inside he merely looked around to see what his chances of succeeding were and was then arrested. If he had performed no proximate act he would not be guilty of any offence. If however two persons agreed that one of them would rob a bank they would both be guilty of conspiracy on completion of the agreement. 44. He contended that the charge preferred against the appellants and others accused them with conspiring to aid, abet, counsel and procure one named immigrant and others to land unlawfully. It was he says a conspiracy to land and this act he says was the unlawful act. The charge was worded in a manner so as to describe the course of conduct which constituted the unlawful act; namely that they agreed they would involve themselves in the commission of the offence by providing the ship and actually transporting the refugees so that the offence was fully carried out. 45. Mr. Duffy stressed that in this case the offence was completed and he maintained that the appellants had ample knowledge of the unlawful act which they were accused of committing and any error made, if at all, was to provide the appellants with more particulars than was necessary. 46. It may be thought to be illogical to say that the particulars given are more than adequate where an attack is launched that the charge is one unknown to the law and hence defective but the offence was one of conspiracy and the law is that in stating the object of the conspiracy the same certainty is not required as in an indictment for the offence; (see R. v. Blake (1844) 6 Q.B. 126; Sydserff v. R. (1847) 11 Q.B. 245. For conspiracy to trespass however it is essential to state in the particulars of the offence the intention or other special circumstances which render the trespass indictable; Kamara v. D.P.P. (1973) 2 ALL E.R. 1242, H/L though in R. v. Peevey [1973] 57 Crim. App. R. 554 at page 557, Lawton L.J. expressed the view that the particulars are not part of the offence charged. 47. In this case the Crown contends that from the very nature of the offence committed its performance required conduct amounting to an aiding and abetting for how otherwise could these persons have landed and he maintained that since aiding and abetting the commission of an offence is itself an offence there could be a conspiracy to do that very thing. 48. The court was referred to the case decided on the 27th November, 1979 of R. v. Skewes and others heard in the Victorian Court of Appeal presided over by Yeung, C.J., Anderson and Jenkinson JJ. There the appellants were charged with conspiracy to aid, abet, counsel and procure divers persons to contravene the provisions of Part II of the Commercial Goods Vehicle Act. It was argued both in the court below and in the Court of Appeal that the indictment disclosed no offence on the ground that since the offence aided etc. was a summary offence no indictment lay. 49. The Court of Appeal upheld the ruling of the trial judge who adopted the principles enunciated in R. v. Blamires Transport Services Ltd [1963] 3 ALL E.R. 170 which distinguished R. v. Barnett [1951] K.B. 245. It was a case, the Court of Appeal said, where the particulars of the conspiracy charged were in terms and substance very different from the offence created by the Act. 50. The Crown invites this court to take the view that had the Victorian Court of Appeal thought the indictment to have been defective by averring, aiding and abetting etc. it would have said so. No complaint otherwise was directed at the indictment. Our attention was directed to the ruling of the learned trial judge who said:-
51. Before leaving Blamire's case it is of interest to note that the conspiracy there charged was one "to cause, order, permit and encourage drivers ...... to make false drivers' daily records in purported compliance with the provisions of section 16 of the Road and Rail Traffic Act, 1933 etc." In the instant case the particulars include "procuring" and in such an offence the procurement may be personal or through the intervention of a third person (see R. v. Earl of Somerset 2 St. Tr. 965). 52. This court was also referred to the decision of the Court of Appeal in R. v. Whitehouse [1977] 1 Q.B. 868 from which it was argued that incitement to aid and abet may not be ruled an impossibility. Conspiracy it was also said is an offence which inherently involves participation as an aider and abettor. This then was basically the argument for the prosecution. 53. In deciding this point it is, I think, relevant to bear in mind a number of points. First, the expression "aiding, abetting, counselling and procuring" by joining secondary parties in a lump links principals in the second degree with accessories before the fact whose roles in the commission of a completed crime varies. Secondly, the nature of inchoate crimes is different each having a part to play in the bringing of offenders to justice. The fact that there can be an attempt to incite a person to commit an offence or an attempt to incite a person to attempt to commit an offence (R. v. Ransford 13 Cox 9 C.C.R.) but not an attempt to aid and abet stems from the nature of the inchoate offence itself. 54. Then, again I think one must have regard to the nature of the actual offence committed, and the made in which it would ordinarily be committed. It seems to me that the answer to the point to be decided lies in the common law definition of conspiracy. That is the law which is to be applied in Hong Kong. 55. Conspiracy is an indictable offence consisting in the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. Lawlessness is nipped in the bud at the earliest opportunity. Frontiers of liability were pushed even further back by decisions which permitted even incitement to conspire and attempts to conspire though in England these offences have now been abolished by section 5(1) of the 1977 Act. 56. The rationale of the law of conspiracy is explained by Glanville Williams in his Criminal Law, The General Part 2nd Edition at page 672. The learned author says:-
57. The objectionable matter which is struck at is the agreement and that agreement need be no more than to do an unlawful act. The agreement is made to precipitate conduct and if the conduct intended is designed to lead to the commission of an unlawful act then, at common law, it is a punishable agreement. 58. As Brett J.A. said in R. v. Aspinal 1876 2 QBD 58:-
59. In D.P.P. v. Withers [1974] 3 ALL E.R. 983 H.K., a case involving conspiracy to effect a public mischief, Lord Kilbrandon had this to say at page 1005 of the report:-
60. The unlawful act in this case was the action of the refugees in landing in Hong Kong in breach of section 38(1)(a) of Cap. 115. The appellants aided and abetted the completed offence. Their initial negotiations and plans must from a common sense point of view have reached the stage of agreement before the "Tak On" left Macau, but if not, their embryonic agreement was finally evidenced when coded telegrams were exchanged between the 3rd appellant in Vietnam and the 2nd appellant in Hong Kong that the 3rd appellant should sail to Hong Kong with the refugees. The 1st appellant joined the conspiracy when he expressly took a fishing vessel to meet the ship at the appointed rendezvous. His act completed the commission of the crime since these men, women and children could not otherwise have landed. Supplying the ship and fishing vessel were an integral part of the plan. 61. Professor Glanville Williams in his Textbook of Criminal Law at page 351 poses the question whether D would be guilty of conspiracy if knowing a gang intend to plan a robbery he supplies them at their request with a weapon for a suitable consideration but before the robbery is committed the gang is arrested. In answering the question he says:-
When the ship found the refugees an agreement was made with them that for a consideration they would be taken to Hong Kong. A service was provided for a fixed reward and the scheme was initiated by the 2nd, 3rd appellants and others. The facts of this case go far beyond the example cited above in that the appellants throughout controlled the instrument of the crime, namely the ship, and made the commission of the offence possible. 62. I am of the opinion that the charge as framed is not one unknown to the law. In my view to hold this is not to contravene the decision in Knuller Ltd. v. D.P.P. [1972] 2 ALL E.R. 898. The conspiracy here was to land people in Hong Kong who had no right to land and the particulars supplied informed the appellants of the way in which they did so. There was an agreement to do an unlawful act, namely to procure the contravention of section 38(1)(a) of Cap. 115 and it was properly the subject matter of a conspiracy count. I would dismiss the appeals of the 1st and 2nd appellants. 63. Finally there is the appeal of the 3rd appellant. He did not give evidence at his trial. It was urged that the learned trial judge failed to consider the effect, if any, of the initial plan for the vessel to go to the Philippines or rendezvous with another ship which in code was called "Mr. Boon". The judge alluded to this matter at page 468 of the record where he said that he considered its relevance "doubtful" as he was satisfied that the basic proposals remained unaltered that the "Tak On" was to go to Vietnam. Thus nothing prejudicial to the 3rd appellant was drawn from this side-trip. The damaging evidence against this appellant was the exchange of coded telegrams and his request at sea for a vessel to come and take off his passengers. 64. Complaint is also made that the learned trial judge erred in failing to determine whether the actual refugees transported, who it seems were not those initially designed to be collected, were co-conspirators and the bearing that had on his finding that there was the conspiracy as alleged in the indictment. It was suggested that the 3rd appellant was minded to bring other refugees than those carried. The Reasons for Verdict given so lucidly by the learned trial judge made it clear that the agreement crystallized once the refugees were on board and to that end it was immaterial whether they were those intended to be collected or not. 65. It was a further ground of appeal that a conviction based on the evidence of the accomplice Ngan Wah is unsafe and unsatisfactory. The judge was fully alive to Ngan Wah being an accomplice and he considered the possibility he might have exaggerated the roles of others to protect himself. He was aware the Attorney General had entered a nolle prosequi in his favour and he took into account that Ngan Wah had initially told lies to the police. He said he was in no doubt that the evidence concerning the voyage from Vietnam to Hong Kong was truthful and he accepted his testimony as accurate. There is no substance in this ground of appeal either. 66. It is unnecessary to detail the 3rd appellant's arguments relating to a supposed contingency plan. This ground of appeal ignores the evidence against him that he negotiated with the refugees for their valuables as a condition for keeping them on board; that this appellant sent coded messages to arrange a rendezvous; that he told the refugees when the ship neared Hong Kong not to walk on deck lest they be spotted by aeroplanes and that he refrained from sailing directly into harbour. There is no substance in this ground of appeal. 67. Finally it was suggested that the might have been in a conspiracy other than that specifically charged. The learned trial judge found he was a co-conspirator and of that finding there was abundant evidence to prove such was the case. His appeal against conviction is also dismissed. 68. There simply remains the question of appeal against sentence. We wish to make it abundantly clear from the outset that we are not by this judgment seeking to lay down any tariff for this class of offence. It has been suggested to us that the sentence of 4 years' imprisonment is excessive and should be reduced by one half. Mr. van Buuren on behalf of the third appellant who was the master of the "Tak On" has suggested that this court might suspend his sentence. The offence these appellants committed was as deliberate an offence as could be imagined. The vessel sailed from Macau to Vietnam to pick up refugees who were expected to be waiting. Instead other refugees were waiting to be taken away, and they boarded the "Tak On" but without the money which the master of the ship expected to receive. The 3rd appellant threatened to take them back into Vietnam harbour unless they paid him more. After a lot of negotiation the vessel ultimately left Vietnam and sailed towards Hong Kong. It was part of the plan that the vessel should stop outside Hong Kong waters, and the third appellant did not in the course of that journey ever come into Hong Kong. It is one thing to assist refugees who are genuinely in trouble and to assist them for humanitarian reasons. It is quite another to exploit them. It is one thing for the Government of Hong Kong voluntarily to offer a haven to refugees. It is quite another for the Government of Hong Kong to be forced to do that. We have carefully considered the representations made to us and we are satisfied, without making this case in any way a precedent for this class of offence, that the sentences imposed are not manifestly excessive. In fact we are inclined to the view that they are on the lenient side. The appeal therefore against sentence is dismissed. Garcia J.: 69. I agree. Representation: Mr. Duffy & Mr. Martin for Crown Mr. Lawrance Lok (W.I. Cheung & Co.) for 1st Appellant Mr. K.J. Cheung (W.S. Lo & Co.) for 2nd Appellant Mr. B. van Buuren (S.T. Poon & Co.) for 3rd Appellant |