REFERENCE BY THE ATTORNEY GENERAL UNDER SECTION 81D OF THE CRIMINAL PROCEDURE ORDINANCE

IN THE COURT OF APPEAL

1987 No. 1
(Reference)

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D E C I S I O N

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Roberts, C.J. -

Points of law referred

1. The Attorney General, in the exercise of his powers under section 81D of the Criminal Procedure Ordinance has referred the following points of law for the opinion of this Court -

“1. In the case of an indictment alleging a conspiracy to defraud, if at the conclusion of the prosecution case, the Trial Judge finds in relation to two defendants of several that :

(a) there was no evidence that they knew of or intended or agreed to join any scheme which went beyond their overt act; or

(b) that the evidence was as consistent with their having been members of a conspiracy which was not charged as the one charged :

(i) Is the Trial Judge correct in concluding that the conspiracy count charges two different conspiracies and is bad for duplicity and must be quashed?

(ii) Is it correct that without making any finding upon whether there is evidence to go to the Jury that the remaining two conspirators are guilty of the conspiracy charged, the Judge should forthwith quash the indictment?

(iii) What is the duty of the Trial Judge, in particular, is it the duty of the Judge :

(a) to invite the parties to make submissions on the consequences?

(b) to invite the Crown to propose amendments to the indictment?

(c) to invite the Crown to elect how to proceed?

2. In the event that a Judge quashes an indictment, is it correct to direct verdicts of not guilty or should not the Judge discharge the Jury from giving verdicts?

3. To what extent should a Judge give reasons for a finding of no case to answer?

In particular if at the end of the prosecution case on a submission of no case to answer:

(i) in respect of a defendant charged with conspiracy to defraud, where a Judge finds evidence of overt acts particularized in the charge in respect of that defendant, and further finds that that evidence does not provide a case to answer in respect of the charge to what extent if any, should the Judge give reasons for his finding?

(ii) if the Judge finds that the prosecution evidence in respect of that defendant was as consistent with him having been a member of a conspiracy which was not charged as with the one charged, to what extent if any, should the Judge give reasons for his finding?”

The Facts

2. As required by Rule 3(1) of the Criminal Procedure (Reference of Questions of Law) Rules, the Reference contained a statement of such facts of the case as were thought by the Attorney-General to be necessary for the proper consideration of the question of law.

3. The statement of facts was, in effect, a summary of the Crown case, the accuracy of some of which would have been challenged by the defendants. However, we have not found it necessary to refer to them at all, since the judge's ruling contains all the material which is' required for the purposes of this' Reference.

The Trial

4. On the 10th January, 1986 and 19th February, 1986 the defendants were arraigned in the High Court of Hong Kong before Barker, J.A., upon the indictment which is set out in full in the judge's ruling.

5. To this indictment each of the defendants pleaded not guilty. The trial lasted from the 19th February 1986 until 15th September, 1987.

6. At the conclusion of the Crown case, submissions were made on behalf of each of the defendants that he had no case to answer.

7. A written copy of the judge's ruling was supplied to the parties and the press immediately after he had delivered it orally.

8. To comply with Rule 3(2) of the Criminal Procedure (Reference of Questions of Law) Rules, which requires that no mention shall be made in the Reference of any person or place which is likely to lead to the identification of any respondent, references to names have been deleted in the Reference and in this judgment. We recognize, of course, that any such precautions are bound to be ineffective in this case.

9. Upon the direction of the judge, the jury returned to court and were directed to return verdicts of not guilty against each of the defendants, which they did.

The Ruling

10. Those parts of the ruling delivered by the Judge which are relevant for the purposes of this Reference were as follows -

“1. Each Defendant through his Counsel has submitted that he has no case to answer and that I should stop the case at this stage. It is out of no disrespect to Counsel who have worked with great diligence and assiduity if I do not deal in detail with the many arguments which have been advanced before me.

4. I now turn to the Indictment itself. What is alleged therein is conspiracy to defraud, and considerable objections have been taken to it on behalf of all the Defendants. The Crown at one stage submitted that these objections should have been taken at the close of the committal proceedings. They could not have been. There was then no indictment to object to. Nor could objection have been taken at the beginning of this trial, because the indictment is correct in form.

5. A conspiracy is an agreement between two or more persons to effect an unlawful act or to effect a lawful act by unlawful means. The crime lies in the agreement. Once the agreement is made the crime is complete. In law all must join in the one agreement, each with the others, in order to constitute one conspiracy. They may join in at various times, each attaching himself to that agreement; any of them may not know the full extent of the scheme to which he attaches himself. But what each must know is that there is coming into existence, or is in existence, a scheme which goes beyond the illegal act or acts which he agrees to do (per. Paull J. in Reg v. Griffiths [1966] 1 QB 589, at 597, a decision of the Court of Appeal in England but which also represents the law of Hong Kong).

7. A charge which is not bad for duplicity where the trial starts does not become bad in law because evidence is led which is consistent with one or more of the defendants being a member of a conspiracy other than the one charged. Such evidence may make it impossible for the prosecution to establish the existence of the conspiracy charged. At the end of the prosecution’s case the evidence may be as consistent with the defendants or some of them having been members of a conspiracy which was not charged as with the one charged. In such a situation the trial judge should rule that there is no case to answer. But if, at the end of the prosecution’s case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the defendants, or two of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury (per Lawton L.J. in R. v. Greenfield [1973] 57 Cr. App. R. 849).

13. I turn then to D3 and D4. There is evidence, uncontradicted, that they too were deceived by D1 and D2 with regard to the N transaction. (Particular 7). As disclosed in that particular it was a term of that agreement that A was to receive a cash deposit of $144,480,000 and that X's deferred obligations would be secured by an unconditional Bank guarantee. What they were not told and what was deliberately concealed from them was that if the agreement was completed, which it never was, A had agreed to give a cash collateral and a counterguarantee to the Bank. This deception alone however would not justify me in stopping the case against them.

14. However the only matter with which they were concerned vis-a-vis D1 and D2 was the N transaction. Assuming that this transaction was illegal, there is in my judgment no evidence that they knew of, or intended or agreed to join a scheme which went beyond that act. At the end of the prosecution's case the evidence was as consistent with D3's and D4's having been members of a conspiracy which was not charged as with the one charged. It is true the particulars of N were averred as an overt act in the present indictment, but such particulars are not the same as a separate count charging a separate conspiracy. For these reasons, in my judgment the present count in the indictment charged two different conspiracies and is bad for duplicity and must therefore be quashed. It follows that D3 and D4 have no case to answer.”

15. The consequence of this is that since there is only one count in the indictment, which count is bad for duplicity, there is nothing now in this trial on which D1 and D2 can be tried, and therefore they too have no case to answer.”

The Indictment

11. The six defendants faced one count of conspiracy to defraud, contrary to common law.

12. The Particulars of Offence were as follows -

“D1, D2, D3, D4, D5 and D6, on divers dates between the 1st day of January, 1981 and the 31st day of July, 1982, in Hong Kong, conspired together to defraud shareholders or potential shareholders of A formerly B, or creditors or potential creditors of A or any other person or company who might have been induced to accept shares in A as collateral for loans or advances to the defendants or any of them or to A or to C or any other company related to A or C or any company in which the defendants or any of them had a legal or beneficial interest, by false and misleading statements and by concealments as to the profits, liquidity and financial integrity of the said A, by dishonestly:-”

13. There then followed particulars of ten overt acts, which were alleged to be evidence of the conspiracy charged.

14. It is to be noted that D5 and D6, with whom we are not otherwise concerned, were acquitted, on the direction of the judge, who found that “there is no evidence against D5 and D6 of any conspiracy, let alone the conspiracy alleged, and I shall stop the case against them.”

Scope of Section 81D

15. Section 81D(1) of the Criminal Procedure Ordinance is in the following terms -

“(1) where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) the Attorney General may, if he desires the opinion of the Court of Appeal on a question of law which has arisen in the case, refer that question to the Court of Appeal which shall, in accordance with this section, consider the point and give its opinion on it.”

16. As will be seen, it is a matter of controversy as to whether the judge quashed the indictment, which does not involve an acquittal of D1, D2, D3 and D4, or found no case to answer against them, which does. However, we are in no doubt that the effect of what the judge did may properly be regarded as an acquittal so as to justify the Attorney General in referring a question of law to this Court under section 81D.

17. It is worth observing, for future guidance, the following observations of Lord Diplock in A-G. for Northern Ireland's Reference (No.1 of 1975)[1]

“References, under section 48A of the Act of 1968, to the Court of Criminal Appeal in Northern Ireland, like the corresponding references to the Criminal Division of the Court of Appeal in England under section 36 of the Act of 1972, are confined to points of law that have arisen in cases in which a person has been tried upon indictment and acquitted. When the Act of 1972 was passed all trials on indictment in Northern Ireland as well as in England took place before a judge sitting with a jury. I know of no other satisfactory definition of a ‘point of law’ arising in a criminal case than that it is question that under this mode of trial would fall to be decided by the judge, not by the jury. Apart from questions of admissibility of evidence, it is a function of the judge to decide what are the constituent elements both physical (actus reus) and mental (mens rea) of an offence with which the accused is charged and to instruct the jury accordingly. It is the function of the jury to decide whether each one of those elements has been proved to have been present in the conduct or mind of the accused. This is because the definition of a crime is always a question of law; so where there has been trial by jury it should not be difficult to isolate and identify as a point of law arising in the case a question as to the correctness of the definition of the constituent elements of the offence given by the judge in his summing up to the jury. It has also long been recognised that the question whether upon a trial by jury there is any evidence upon which the jury could convict the accused is a qustion for the judge and thus one of law. This can be rationalised as a direction by the judge that if every fact unfavourable to the accused of which there is some admissible evidence, however slight, were treated as established, those facts would not satisfy the definition of the offence.

Ever since there has been provision for appeals in criminal cases if the judge's definition of the crime as ascertained from his summing up were too unfavourable to the accused and the accused were convicted, the error of law could be corrected on appeal and so prevented from gaining general currency. But if it were too favourable to the accused and the accused were acquitted there was no way before 1972 of obtaining the opinion of an appellate court to this effect. The obvious purpose of the new jurisdiction conferred upon appellate courts by the Act of 1972 was to provide a means by which the risk of perpetuation of judicial error of this kind could be avoided.”

18. It must thus be emphasized that the object of section 81D is not to provide a method whereby the Crown can appeal against an acquittal under the guise of a reference. As section 81D(4) states, in terms, “A reference under this section shall not affect the trial in relation to which reference is made or any acquittal in that trial.”

19. Thus an opinion on a reference contrary to the ruling given by the judge at the trial which led to an acquittal does not mean that the defendants were guilty of the offence charged. In saying this we recognize that, whatever we may say, the public may conclude otherwise, though to do so would be unfair on the defendants, since it has not been our task to consider the evidence against them. Our sole duty is to answer the limited questions of law which have been posed to us, to the extent to which we see them as proper subjects of a reference.

20. It is not our task to retry the defendants, to express any view as to the strength of the case against them, to offer any opinion as to the wisdom of charging one conspiracy as opposed to a number of smaller ones or to deal with questions which were not put to us, even if we thought that those contained in the Reference could have been differently or better expressed.

21. It was submitted to us at one stage that the answers to the questions which were posed in the Reference were so simple and obvious that they were not a proper subject of a Reference.

22. Even if this were so, and we do not consider that it is, we would, as we read Section 81D, have no discretion to refuse to deal with them.

23. It is a matter for the Attorney General alone to decide what questions of law to pose. Provided that the other requirements of the section are complied with, this Court “shall ..... consider the point and give its opinion upon it.”

The Questions

24. It is not disputed that the judge, in paragraphs 5 and 6 of his ruling, correctly stated the law as to the definition of "conspiracy" as set out in R. v. Griffiths[2]; and as to the approach of a judge to a submission of no case to answer, as set out by Lord Lane, C.J. in R. v. Galbraith[3].

25. Nor was there any criticism by counsel of paragraph 7 of the ruling, in which the judge quotes a passage from the judgment of Lawton, L.J. in R. v. Greenfield[4] at p. 857.

26. In that passage from Greenfield, Lawton, L.J. puts forward two propositions -

(a) if the evidence, at the close of the Crown’s case, is as consistent with the defendant having been a member of a conspiracy which was not charged as of one which was, the trial judge should rule that there is no case to answer;

(b) if there is evidence on which a reasonably minded jury could convict the defendant of the conspiracy charged, despite evidence of the existence of another conspiracy, the case should go to the jury.

27. While Barker, J.A. accepted that particulars of an alleged act are not to be equated with a separate count of conspiracy, he seems, in para. 14 of his ruling, to have placed undue emphasis on proposition (a) and so led himself into error.

28. In our view, proposition (a) is both wrong in itself and inconsistent with proposition (b).

29. It is wrong because, if the evidence is sufficient to go to the jury on the conspiracy charged, it should be left to the jury, whether or not the evidence is consistent with another conspiracy which is not charged.

30. It is inconsistent with proposition (b) because the latter states that the case should be left to the jury despite there being evidence of another conspiracy which is not charged.

31. It would be better, we consider, if, in the application of Greenfield4, proposition (a) were ignored and proposition (b) only taken as a proper expression of the law.

32. We note that paragraph 1(b) of the Reference itself follows the wording of proposition (a), as that was stated in the judge's ruling, so that we are being asked to answer questions based on a proposition of law with which we do not find ourselves able to agree, though the questions are, fortunately, of such a nature that we are nevertheless able to deal with them, even though we disagree with part of the basis for them.

Duplicity

33. As the judge observed, in paragraph 4 of his ruling, the indictment was correct in form.

34. Indeed, it followed, closely and correctly, the formula prescribed in R. v. Landy[5] which requires that the particulars of offence should contain details of the overt acts relied upon by the Crown as evidence of the conspiracy charged.

35. As has frequently been said, duplicity is a matter of form, not of evidence - see R. v. Greenfield4, R. v. West[6], R. v. Giffiths2, R. v. Davey[7].

36. This means that no single count of an indictment should charge a defendant with having committed two or more offences.

37. But, if the particulars allege one offence, the fact that the evidence at the trial may reveal two offences does not invalidate the count if it is within the rules. To give a simple example, if X is charged with theft from a shop and evidence emerges that, as he was stealing, he assaulted the shopkeeper, this does not invalidate the count as duplicitous.

38. If, however, the evidence does not support the charge, but some other offence which is not charged, the defendant must be acquitted, unless the first charge is amended or another charge is added.

39. Thus, in relation to conspiracy the fact that the evidence establishes prima facie that a defendant has committed not only the offence charged but also oth0r conspiracies does not render the indictment defective for duplicity.

40. If this were so, Landy5 would be a trap for prosecutors, since it is very common for the overt acts set out in the particulars of a conspiracy charge to be shown, at the close of the Crown case, to have been separate sub-conspiracies, as well as evidence of the main conspiracy charged.

41. It is not until paragraphs 14 and 15 of the ruling that any mention is made by the judge of duplicity.

42. In the first two sentences of paragraph 14 the judge finds that D3 and D4 were only involved in the one transaction, specified in paragraph (7) of the particulars, and that there was no evidence that they intended to join a scheme which went beyond that transaction.

43. This was a finding that the judge was entitled to reach on a consideration of the evidence against D3 and D4, if satisfied that there was no case for them to answer, applying the principles of Galbraith3.

44. If he had merely so declared, he could not have been criticized. Unfortunately, he went on to find, purporting to apply Greenfield4, that the evidence against D3 and D4 was as consistent with the commission of a sub-conspiracy, which had not been charged in relation to the one transaction, as with the conspiracy which was charged.

45. From this finding he concluded that the count in the indictment charged two conspiracies, was bad for duplicity and must be quashed, adding “it follows that D3 and D4 have no case to answer”.

46. The last two sentences of paragraph 14 show a confusion between the quashing of an indictment on the ground of duplicity and a ruling that there is no case to answer.

47. Although section 53 of the Criminal Procedure Ordinance does not deal with a duplicitous indictment, it illustrates that, if an indictment is quashed, the court has power to direct that the defendant should plead to another indictment. Thus the quashing of an indictment, whether for duplicity or other reason, does not amount to an acquittal. In effect, the trial, in such circumstances, is aborted and no longer before the jury.

48. By contrast, where a judge rules that there is no case to answer, the correct and only course is for him to direct the jury to return a verdict of not guilty and then to formally acquit the defendant of the charge.

49. In relation to D3 and D4, therefore, the judge was clearly in error in' purporting both to quash the indictment and to find that there was no case to answer.

50. Having found that there was no evidence that D3 and D4 “knew of or intended or agreed” to join a scheme which went beyond the transaction specified in paragraph (7), it would have been proper for him to have found, in consequence, that they had no case to answer on the count charged, and to call upon the jury to find a verdict of not guilty in relation to them.

51. Had he done so, however, he would then have been obliged to consider whether the Crown had established that D1 and D2 had a case to answer.

52. This he did not do because, having quashed the indictment as being bad for duplicity, he concluded with the words “since there is only one count in the indictment which count is bad for duplicity, there is nothing now in this tria1 on which D1 and D2 can be tried and therefore they too have no case to answer.”

53. We were invited by counsel for D1 to find that the judge cannot have meant what he said and that the true meaning of his words was that he found no case to answer against D1 and D2 on the basis of the evidence.

54. In support of this contention, it was said that the question of duplicity had never arisen during the trial and that no submissions had been made to the judge by any counsel to this effect.

55. Reference was made to R. v. Wilson[8], and in particular to the following passage at p.85 -

“The word duplicity is used in a rather ambiguous sense, it seems to us, in the authorities and textbooks. First there is a case where it appears on the face of the indictment, or particulars of the indictment, that a count is charging more than one offence. It may sometimes be legitimate to look at the depositions in this context. (See Greenfield (1973) 57 Cr.App.R. 849; [1973] 1 W.L.R. 1151). That has been referred to in the course of the argument as true duplicity. Secondly, there is a case where, although the indictment is good on its face, it appears at-the close of the prosecution case that the evidence establishes that more than one offence was committed on the occasion to which a particular count relates. Perhaps that is best described as divergence or departure, but it often seems to be called duplicity. In our judgment, in whatever sense one uses the word duplicity, it is confined to those two situations. But even if a case is not within either the first or the second of those situations, there may be cases where, in the interests of justice, it may be right to make the prosecution split a count or elect on what particular charge they are going to proceed.”

56. We are not persuaded that Wilson8 is of any relevance here. Even if it is accepted that the word 'duplicity' is employed in more than one sense, and we regard it as unwise to use it to refer to any other circumstance than a count which charges more than one offence, that is not what the judge was doing in his ruling.

57. He made it clear that his view was not that there had been any divergence between the count charged and the evidence adduced, but that the count itself alleged two different conspiracies.

58. If, at the end of a trial of this magnitude, a judge says not a word about the evidence which has been adduced against D1 and D2, acknowledged to have been the principal parties to the conspiracy charged, and bases his “acquittal” of them on a finding that the indictment was defective for duplicity, we cannot but take him at his word.

59. As we have observed in relation to D3 and D4, the proper course, on the quashing of an indictment, is for the judge to discharge the jury from giving a verdict - see R. v. CHAO Tse-yun[9] at p. 257. Having quashed the indictment, he should not have gone on to direct the jury to return verdicts of not guilty in favour of D1 and D2.

60. The latter course would have been correct if the judge had ruled, as he did in the case of D3, D4, D5 and D6 that on the evidence D1 and D2 had no case to answer. But that he did not do.

Duty of the Judge

61. Question 1(b)(iii) dealt with the duty of a trial judge where he quashes an indictment. There was little argument before us on this matter, which was obviously of lesser importance than the earlier questions.

62. The duty of a judge in relation to amendments to the indictment was considered by this court in Attorney General v. CHAN Hung-hoi[10], on a case stated by a Deputy District Judge.

63. The Crown submitted in that case that it was the duty of a judge, at the close of the evidence for the Crown, to amend the indictment so as to accord with the evidence, relying upon section 23(1) of the Criminal Procedure Ordinance.

64. We dealt with this proposition at page 8 as follows -

“Thus our conclusions on the operation of section 23 are as follows -

(a) The trial judge has a power to consider, of his own motion, whether to amend the indictment in accordance with its provisions.

(b) There is no duty on him to exercise that power of his own motion.

(c) If application is made for such amendment by the Crown or the defence, the judge is obliged to consider the application.

(d) In considering that application, the judge is obliged to make such amendment as is necessary to meet 'the circumstances of the case', unless the required amendments 'cannot be made without injustice'.

65. In CHAN Hung-hoi10 we referred to the following passage from the judgment of Humphreys, J. in R. v. Smith and Others[11] -

"The Court was not informed whether the indictment in this case was drawn in the office of the Clerk of Assize or whether it was submitted to counsel for revision before being signed, but we think it desirable to point out that the responsibility for the correctness of an indictment lies in every case upon counsel for the prosecution, and not upon the Court. No counsel should open a criminal case without having satisfied himself upon that point. If in his opinion the indictment needs amendment, the necessary application should be made before the accused are arraigned and not, as in this case, after all the evidence for the prosecution has been called. There may well be amendments which would be properly made at the commencement of a trial which would be oppressive and embarrassing to the accused if made at the close of the case for the prosecution."

66. The latter passage, and the comments of this court in CHAN Hung-hoi restate the principle that it is for the Crown, not for the court, to monitor the correctness of the indictment and to seek amendments to it where appropriate.

67. We must therefore reply to the questions, as posed, in the negative. If the judge had invited counsel to address him on the matters referred to in the questions, he could not have been criticized. Indeed, the better course would have been for him to do so. But we are not prepared to say that, as a matter of law, he erred in not extending such invitations to counsel.

68. In reaching the conclusion that the duty to seek amendments to indictments lies on the Crown, it should not be thought that we are criticizing the failure of the Crown to take any steps to do so in the circumstances in which the judge delivered his ruling. His finding that the count was bad for duplicity must have been wholly unexpected, since nothing in the course of the trial, the arguments of counsel or the earlier part of his ruling gave any indication that this would be the ground on which he would dismiss the case against D1, 02, D3 and D4.

69. It was therefore not surprising that the prosecution did not react with sufficient speed, to this unexpected and unpredictable course of events, to offer submissions to the judge on the matters specified in Question 1(b)(iii).

Question 3

70. There was little argument on this question either, though there were passing references to it by counsel.

71. We note that in the A-G. for Northern Ireland's Reference1, Lord Diplock, at p.134, commented -

“The particular case in which the acquittal of the accused upon a charge of murder has given rise to the present reference was not tried by jury, but by a judge sitting alone under section 2 of the Northern Ireland (Emergency Provisions) Act 1973. Although he-was under no legal obligation to do so, the judge gave a judgment stating his reasons for finding the appellant not guilty and setting out in considerable detail his findings of fact.”

72. We are dealing here only with a ruling of no case to answer by the judge in a trial on indictment in the High Court. Other rules apply in the District Court and the Magistracy.

73. So far as the High Court is concerned, we accept that Lord Diplock's ruling states the position in law, so that the answer to Question 3 is that the judge is under no duty to give reasons for finding that there is no case to answer.

74. However, we consider that it is, in general, desirable that a judge should give reasons, even though they may be succinct and without detail, as to why he so finds, since there is a legitimate public interest in a judge's reasons for deciding that a prosecution has failed for lack of evidence to support a charge, particularly in a case of this magnitude and notoriety.

75. It must, however, remain a matter for the judge's discretion as to whether he gives reasons for such a ruling and the extent to which he gives them; and we are not prepared to issue any direction obliging a judge to give such reasons.

The Answers

          The answers to the questions put, accepting the assumptions on which they are based, are as follows -

1. (i)

(ii) No, though if the indictment had been properly quashed as defective for duplicity against D3 and D4, it would also have been defective against D1 and D2.

(iii) There is no such duty in law.

2. The judge should discharge the jury from giving verdicts.

3. There is no duty to give reasons, though this is desirable.

76. For the guidance of the Registrar, we draw his attention to section 81D(3) which entitles those defendants who appeared on this Reference to their costs, in accordance with that subsection.

[1]  [1977] A.C. 105 at p.132
[2]  [1966] 1 Q.B. 589
[3]  [1981] 73 Cr.App.R. 124
[4]  [1973] 57 Cr.App.B. 849
[5]  [1981] 1 W.L.R. 355
[6]  [1948] 1 K.B. 709
[7]  [1960] 1 W.L.R. 1287
[8]  [1979] 69 Cr.App.R. 83
[9]  [1962] H.K.L.R. 254
[10]  [1987] Crim. App. No. 112
[11]  [1950] 34 Cr. App.No.168