THE QUEEN v. HO YUK CHEUNG

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JUDGMENT

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Hon. Yang, C.J.:

1. This is the judgment of the Court.

2. In this application for leave to appeal against a conviction by H.H. Judge Bokhary on 12th March 1990, we are concerned only with Charge 6 which alleges that D1, D2 and D3 (the applicant) between the 1st January 1983 and the 30th September 1988 conspired to steal photographic, hi-fi and other electrical equipment belonging to Winston Camera and Radio Co. Ltd.

3. D1 and D2 pleaded guilty to the conspiracy with "another person" but limited their plea to a period from January 1983 to December 1984. D3 was convicted after trial.

4. Mr. Kwong, acting on behalf of D3 in this application, advances one ground and one ground only of appeal and that is that the conviction is unsafe and unsatisfactory. Under this ground, four particulars were proffered. We are only concerned with the first and second particulars. The third and fourth being grounds relating to factual matters - and as we are about to order a retrial, we do not think it necessary or indeed desirable to go into the facts and the evidence of this case.

5. The first particular under the applicant's ground of appeal is that there was no or no sufficient evidence to support certain particularised findings of fact. Having read portions of the evidence, we are satisfied that the evidence is susceptible to an interpretation that there were in fact two conspiracies rather than one. The judge does not discuss the evidence with that particular issue in mind except to say in her Reasons for Verdict that it was her conclusion that there was one conspiracy from start to finish.

6. If indeed there were two conspiracies, then the charge was bad for duplicity which defect being fundamental cannot in our view be cured by the application of the proviso.

7. The second head under the ground of appeal is that the judge erred in referring to the facts agreed between the Crown and Dl and D2 and used them in her assessment of the case against D3.

8. In her Reasons for Verdict, the judge said in the penultimate paragraph: "The statement of facts agreed between the first and second defendants, both of whom pleaded guilty, and the Crown contained some badly expressed phrases. The third last paragraph opens "During 1983/1984, Dl and D2 conspired together with another person to steal cameras and camera equipments belonging to their employer "Winston" which were subsequently sold." Then the last paragraph opens "During 1985 to 1988, Dl and another person conspired to steal photographic, hi-fi set, video recorders and other electrical equipments belonging to "Winston" which were subsequently sold." I am sure in all the circumstances, that the only correct reading to give to the last of the two sentences quoted is one which conveys this meaning: during 1985 to 1988, the first defendant and another person, in fact the third defendant, resuming dishonest conduct under the conspiracy which had originated in 1983 - acted in concert to steal from "Winston"."

9. We do not understand why the judge felt it necessary to include this paragraph in her Reasons for Verdict against D3. But as we have said in the course of argument, this paragraph is susceptible to the interpretation that she might have used the Agreed Facts of D1 and D2 against D3.

10. For these reasons, we allow the application, treat the application as hearing of the appeal, allow the appeal and quash the conviction. The sentence is set aside. We order a retrial on a fresh indictment in the District Court.