XCHRX HKSAR v. LAU WING KUN AND ANOTHER

CACC 524/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 524 OF 1999

(ON APPEAL FROM DCCC 1422 OF 1998)

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IN THE MATTER OF District Court Case No. DCCC 1422 of 1998

and

IN THE MATTER of Section 83Z(b) of the Criminal Procedure Ordinance Cap. 221 of the Laws of Hong Kong Special Administration Region

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BETWEEN

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R U L I N G

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Leong, J.A. (giving the ruling of the Court):

1. The two applicants were convicted before H.H. Judge Wright in the District Court of conspiracy to engage in bookmaking and were each sentenced to 2 years imprisonment. They now apply for bail pending appeal. The charge alleged that they and five other defendants conspired with some named persons to engage in bookmaking by the various acts asserted in the particulars of offence. There are also two charges on the charge sheet which I am not today concerned with.

2. It is accepted that the appeal would be heard sooner than the expiry of the prison sentences of the two applicants and therefore the grounds advanced in support of their applications are mainly that there is a good and arguable case that the conviction is unsafe and unsatisfactory.

3. Mr. Wong, S.C. for the applicants submits that the charge of conspiracy is bad for duplicity in form and in substance. He submits that the particulars of the charge are allegations of a separate offence of conspiracy to assist in bookmaking and therefore there are more than one offence alleged in the charge and the charge is bad for duplicity. He also submits that the Judge had found two conspiracies on the evidence, one involving the first and the third defendants, i.e. two applicants, and another involving the third defendant and the other defendants and the two conspiracies fell within the same particulars of offence. Thus, the charge was bad in duplicity in substance. Secondly, Mr. Wong submits that because there were two conspiracies, it was not proper for the Judge to choose one of them and convict those involved in it and acquit the other defendants who were engaged in the other conspiracy to fit into the charge which alleged only one conspiracy. The conviction is therefore arguably unsafe and unsatisfactory and bail should be granted to the applicants pending appeal.

4. Mr. Goodman for the government submits that the particulars are overt acts and need not be proved in each and every aspect of it. So long as the Judge found that there was a conspiracy in which the applicants were involved, the conviction would be safe. The essence of the charge is the agreement which had to be proved.

5. Mr. Goodman also relied on other matters which he says under section 83z of the Criminal Procedure Ordinance, Cap. 221, this court can take into account in an application of this nature and that is the second applicant is now awaiting trial in respect of a new offence and his application for bail pending trial of that offence has been refused.

6. I do not think the argument that the particulars alleged a separate offence presents a good arguable case that would enable the applicants to succeed on appeal. The particulars are allegations relied upon by the prosecution to establish that the applicants were involved in an agreement to engage in bookmaking and these were provided as a result of the defence asking for more details of the overt acts relied upon by the prosecution. They didn't allege a different conspiracy. The argument that the Judge had found two conspiracies is still less arguable. What the Judge said in the Reasons for Verdict were that he found the conspiracy between the two applicants established and the other defendants were not involved in it. The fact that the other defendants might have been guilty of another conspiracy does not affect the Judge's conclusion that he found that there was an agreement to engage in bookmaking in which the two applicants were involved.

7. Given the fact that the second applicant is now in custody pending trial in respect of another offence, and for the above reasons, the grounds advanced in support of this application for bail cannot be accepted. The application for bail is refused.

Representation: