YEUNG CHUN PONG AND OTHERS v. SECRETARY FOR JUSTICE

HCAL 123/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 123 OF 2005

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J U D G M E N T

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I.  INTRODUCTION

1.  This case has come to me before.  See Yeung Chun Pong andothers v. Secretary for Justice [2005] 3 HKC 447 (CFI), 464 (CA).  I will not repeat here the background history set out in §§2-13 of my previous Judgment in this matter.

2.  The question which I now have to determine is this: The Applicants having been acquitted in Macau of an offence of “commutation, transference or deceit of goods from illicit assets,” can they be tried in Hong Kong on a charge of “conspiracy to deal with the proceeds of an indictable offence”?

3.  The Applicants say that the Macau offence is the same (or substantially the same) as the Hong Kong offence being charged.  They contend that trial on the Hong Kong charge would therefore infringe their constitutional or common law right not to be tried twice for the same offence.  They raise a plea in bar of autrefois acquit or, alternatively, seek a permanent stay of the trial on the Hong Kong charge.

4.  The Government, on the other hand, says that the Hong Kong and Macau charges are plainly different.  This is especially so (the Government says) because the Hong Kong charge concerns dealing with monies in a different bank account and over a different period from the bank accounts and periods which were the subject of the Macau charge.  In those circumstances, the Government denies that there is no basis for a plea of autrefois acquit or a stay in the Applicants' favour.

5.  The Applicants' trial on the Hong Kong charge was scheduled to be heard before District Court Judge Wright.  Having heard the Applicants argue their plea of autrefois acquit as a preliminary issue, on 31 August 2005 Judge Wright rejected their contentions.  The Hong Kong and Macau charges (Judge Wright held) were substantially different and there was no ground for a stay.

6.  By these proceedings, the Applicants seek judicial review of Judge Wright's Ruling.

II.  DISCUSSION

A.  Law

7.  Mr. McCoy SC (appearing for the Applicants) observes that there is some doubt whether the plea of autrefois acquit applies where (as here) a defendant was originally tried in a foreign jurisdiction.  He also notes that there is some doubt whether Article 11(6) of the Basic Law prevents a person from being tried in Hong Kong for an offence of which he has been acquitted elsewhere.  This latter doubt is the result of a remark by Tang JA (at Yeung 469 (§3)) when hearing an appeal against my previous judgment mentioned above.

8.  But, for today's purposes, I shall assume (as did Judge Wright) that autrefois acquit can be based on an acquittal in a foreign court.  I am also prepared to assume (as Judge Wright did) that the principles governing autrefois acquit where a foreign acquittal is concerned, are identical to those applicable to that plea in relation to a prior acquittal by a domestic court.

9.  I should add that I do not think that there is significant difference in the Court's approach depending on whether the right involved here is a common law or a constitutional one.  Whether the source of the right is the common law or Basic Law Article 11(6), the Court will subject criminal charges involving apparently similar offences to a heightened scrutiny in order to determine whether there is double jeopardy.

10.  In my judgment, the plea of autrefois acquit (or convict) arises only in limited, narrowly defined circumstances.  

11.  The plea may be raised where the elements of former and later charges against an individual are the same, or where the elements of the later charge are included among the elements of the former charge on which an accused has been acquitted.  See, for example, Pearce v. TheQueen (1998) 194 CLR 610 (High Court of Australia), at 616 (§18).

12.  The first situation is self-evident. 

13.  The second situation may be less obvious.  But its logic is clear.  If the elements of a charge Y constitute a significant subset of the elements of a charge X on which an accused has already been acquitted, then it may be impossible to prove Y without re-opening the issue of the accused's liability on charge X.  One would then in effect be re-trying the accused on charge X.

14.  The problem is that a number of cases go further to suggest that autrefois acquit is available where the later charge is “substantially the same” as the earlier one on which there has been an acquittal.  What does “substantially the same” mean in practical terms?

15.  A variety of tests for determining substantial similarity are discussed in the cases. 

16.  Some cases suggest that a later charge is substantially the same where it arises out of the same facts as a former charge.  Others argue that there is substantial similarity where the evidence used to prove the later charge would have been enough to lead to conviction on the former charge.  Still others advocate a test where one looks to see whether an offence arises out of the same conduct or out of a single event or connected series of events.

17.  In my judgment, none of the tests of substantial similarity just mentioned are apposite. 

18.  As the High Court of Australia pointed out in Pearce (at 616-8 (§§18-28)), the principle of substantial similarity is “an inquiry about what evidence would be sufficient to procure a legal conviction”. 

19.  The inquiry is a limited one.  The test merely “invites attention to what must be proved to establish commission of each of the offence”.  In other words, substantial similarity “invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say”.

20.  This means that:-

“[W]hen it is said that it is enough if the offences are ‘substantially' the same, this should not be understood as inviting departure from an analysis of, and comparison between, the elements of the two offences under consideration” (Pearce at 617 (§21)).

21.  The High Court of Australia in Pearce went on to note the dangers of losing track of the correct test.  It said (at 618 (§§25-6)):-

“Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events would be to substitute a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to law as a result of a single episode of offending.  That would raise still further questions.  How would a single episode of offending be defined?  Would its limits be temporal or would they be founded in the intentions of the actor?

Those are not questions that admit of certain answers and, whatever criteria are adopted, are not questions that could readily be answered at the time an accused enters a pleas.  In any event, such a test would ... shift attention away from the principal focus of the rule underlying the pleas in bar which is a rule against repeated prosecution for a single offence.  It would be a test which would deny operation to some or all of the three other forces at work in this area: that several different offences may be commenced in the course of a single series of events, that an offender can be punished only for the offence charged, not some other offence, and that charges will usually be framed in a way that reflects all of the criminal conduct of the accused.”

22.  Mr. McCoy suggests that, where the second trial “may not have the overall equivalence within the restricted parameters of the autrefois acquit ... doctrine,” the Court may nonetheless grant a stay of proceedings to prevent an abuse of process.  He goes so far as to submit that, where there is such an application for a stay, the burden is on the prosecution to justify the refusal of one.  He cites R v. Beedie [1998] QB 356 (CA) and R v. Phipps [2005] EWCA Crim 33, 14 January 2005 in support of his contentions.

23.  I do not think that either Beedie or Phipps support Mr. McCoy's contention of a wider scope to autrefois acquit.

24.  In Phipps the English Court of Appeal (at §§10-11) summarised the gist of Beedie in 2 propositions.

25.  Proposition 1 was that, subject to Proposition 2, no one should be punished twice for an offence arising out of the same or substantially the same set of facts.  The Court of Appeal justified Proposition 1 on the basis that to act otherwise than Proposition 1 stipulated “would offend the principle that a defendant is not to be tried again on the same or substantially the same facts for more serious offences on an ascending scale of gravity”.

26.  Proposition 2 (to which Proposition 1 was subject) was identified thus: “Proposition 1 does not apply where the prosecution shows that there are special or exceptional circumstances which make it just for a second prosecution to be brought”.

27.  I read Propositions 1 and 2 to mean the following: If but only if an accused can show that he is being tried for the same or substantially the same offence twice, then the Court should grant a stay unless the prosecution can establish special or exceptional circumstances for proceeding with the second trial.  It is a condition precedent to the prosecution bearing the onus of resisting a stay that an accused show that he falls within the doctrine of autrefois acquit (whatever the scope of that doctrine).

28.  Once again then the question boils down to what an accused must establish to come within autrefois acquit.  Once again the question is what is entailed by “being tried for the same or substantially the same offence”.  If the accused falls within the expression, he is prima facie entitled to stay.  If he does not, the question of stay does not arise.

29.  I should note that in Phipps the Court of Appeal itself considered the question of substantial similarity.  It said (at §21):-

“The authorities do not consider in detail what is meant by the same or substantially the same facts but, in our view, as Lord Pearce makes clear in the passage already quoted, they essentially mean that the Crown should not be permitted, save in special or exceptional circumstances, to bring a second set of proceedings arising out of the same incident as the first set of proceedings after the first set of proceedings has been concluded.  The principle (which is in essence that identified in the civil law by Wigram CJ in Henderson v. Henderson) is that the Crown should decide at the outset, or at the latest before the conclusion of the first set of proceedings, what charges it wishes to bring arising out of the same incident.  Any other approach is unfairly oppressive to a defendant.  It is for that reason that the burden is on the Crown to identify special or exceptional circumstances to justify such a course.  Once the Crown has identified the charges it wishes to bring, it is a matter of case management how those charges are tried.  Thus, it is a matter of case management where and when the trial or trials should take place.”

30.  It will be seen that the test of substantial similarity applied by the Court of Appeal is different from that adopted in Pearce.  The Court of Appeal's test is in fact one that was expressly rejected by the High Court of Australia in Pearce.

31.  Although I agree with its Propositions 1 and 2, I am unable to accept the English Court of Appeal's analysis of the meaning of substantial similarity.  For the reasons set out in Pearce, I believe that the Court of Appeal's formulation is impractical and unrealistic as a test for substantial similarity in autrefois acquit.  In particular, I do not think that it can be enough to trigger autrefois acquit that the offences charged arise out of the same incident.

32.  I should also note that the foregoing analysis deals solely with situations giving rise to autrefois acquit. 

33.  As Judge Wright observed (at Ruling §§44-46) the Courts still have an inherent jurisdiction to stay criminal proceedings where they are oppressive in nature or constitute an abuse of process.  Where for whatever reason an accused believes that proceedings are abusive, the burden is on him to satisfy the Court to exercise its discretion in his favour.  That discretion, however, will only be exercised in exceptional circumstances.  The discussion in this section of my Judgment should not be read as in any way commenting on the scope of the Court's inherent jurisdiction to grant a stay for abuse of its process.

B.  Application of law

34.  In my view, given the above analysis of autrefois acquit, Judge Wright correctly rejected the plea of autrefois acquit and refused a stay.

35.  In the terms of Pearce, the elements of the Hong Kong and Macau offences are plainly different.  I think that there are at least 2 reasons for this.

36.  First, as a matter of law, the Macau offence of “commutation” is substantially different from the Hong Kong offence of “conspiracy”. 

37.  As Judge Wright found (at Ruling §§32-33), mere agreement by 2 or more persons to perpetrate a crime would not constitute “commutation” in Macau.  There would need to be some act of execution on their part before they became guilty of “commutation”.

38.  On the other hand, in Hong Kong, mere agreement among two or more persons to perform an unlawful act is enough to give rise to a conspiracy.  It is not necessary that there be some act of execution.

39.  In the same way that Judge Wright did, I believe that this difference is “fundamental” and not merely minor.

40.  Second, even if commutation and conspiracy were the same concepts, the charge in Hong Kong concerns a conspiracy in relation to a different bank account over a different time period from that of the Macau charge. 

41.  Such a difference is, in my judgment, also substantial.  I am not persuaded by Mr. McCoy's submission that details of the bank account and time period found in the Hong Kong charge's Particulars merely constitute “evidence” as opposed to “elements” of an offence.  The comparison of elements is not an abstract exercise of comparing pure legal definitions.  One must look to see whether a conspiracy in Hong Kong alleged in relation to matter X is substantially the same as the particular commutation tried in Macau.

42.  For the sake of completeness, let me now assume that the test in Pearce is too restrictive.  Assume instead that one or other of the tests for substantial similarity suggested by commentators or other cases are apposite.  Even then, it does not seem to me that Judge Wright's decision can be faulted.

43.  If one takes the single incident test, it will be readily apparent that the charges being made in Hong Kong do not relate to the same incident.  This is because the charges concern a different bank account and period of time.

44.  By the same token, the Hong Kong charge cannot be said to arise out of the same set of facts.

45.  Mr. McCoy submits that in effect the charges concern the same single conspiracy as that tried in Macau.  He accuses the Government of acting in bad faith in amending the charge so as to cover a different period and time from that tried in Macau.  The amended charge concerning a different bank account and time period was done (Mr. McCoy says) purely to circumvent the defence of autrefois acquit available to the Applicants.

46.  I do not accept Mr. McCoy's submission. I make 3 comments.

47.  First, one can argue endlessly over whether a set of events constitutes only one or two or more conspiracies.  A test that depends for its answer on whether actions concerning different bank accounts over different times can or cannot be characterised as only one conspiracy, seems to me to hinge on mere semantics.  It is sterile as a rigorous analytical tool.

48.  Judge Wright dealt with the futility of arguing over the existence of one or more conspiracies at §41 of his Ruling.  He said (and I agree):-

“There is no difficulty in law about alleging a separate conspiracy in respect of one identified bank account and another in respect of another identified bank account, even though some, or it may be all, of the conspirators may have been parties to a wider agreement.  The wider agreement or conspiracy would not preclude the existence of sub-agreements or sub-conspiracies and, as a matter of law, these sub-conspiracies or sub-agreements could properly be charged as separate offences.”

49.  Second, as the High Court of Australia in Pearce noted in the passages cited above, I do not see how a judge can say before trial, whether a series of acts did or did not form part of one conspiracy. 

50.  In practical terms, I do not think that the test of one or more conspiracies espoused by Mr. McCoy is workable.  A judge would need to hear evidence about an alleged conspiracy (or conspiracies) before he could confidently say that there was one, two or more conspiracies. 

51.  If Mr. McCoy were right, in order to determine the Applicants' plea in bar on the charge of conspiracy, a judge would have to hear evidence.  In effect, the judge would have to hear the whole case of alleged conspiracy.  The very trial that the plea of autrefois acquit is seeking to avoid would have to be heard, if only to determine whether there were grounds for the plea in bar.  That cannot be right.

52.  Third, Mr. McCoy cites the South African case of S. v. Ndou 1971 (1) SA 668 (AD) and the Nova Scotia case of R v. Innocente (2004) 187 CCC (3d) 533 in support of his argument.  But I do not think that either case helps him.

53.  In Ndou the Appellate Court held that, having been acquitted of an earlier charge of involvement in domestic conspiracies arising out of his involvement with the ANC, Mr. Ndou could not later be charged with involvement in domestic and international conspiracies arising out of his involvement with the ANC.  Insofar as the 2 charges were concerned, the latter involved the same domestic conspiracies as had appeared in the former, but the latter had been enlarged by particulars of international conspiracies which did not appear in the former.

54.  On close analysis of the later charge, the Court found that apart from his membership in the ANC (which was alleged by both former and later charges) it was not being said that the accused had been involved in the international conspiracies particularised. 

55.  On the other hand, of the domestic conspiracies being attributed to the accused in the later charge, 96% appeared in the former charge.  Even then, of the 4% of the indictments that were different, “most of them are more in the nature of incidents tending to support the averment of activity in pursuance of the major charge of conspiracy rather than actions which are themselves of any particular gravity”.

56.  In those circumstances, the Appellate Court was perfectly entitled to conclude that the 4% difference was de minimis and the former and later charges were virtually the same.  Even if the test in Pearce had been applied, the identical conclusion would have resulted.

57.  In Innocente the Supreme Court (LeBlanc J) held that 2 charges relating to drug trafficking (one alleging a conspiracy between I and H and the other a conspiracy between I and G) both concerned the same single conspiracy.

58.  The judge's reasoning for coming to this conclusion are unclear from his judgment.  There is only the assertion by the judge (without analysis of what constitutes one (as opposed to several) conspiracies at law) that he was “satisfied that the two conspiracies alleged ... are, in fact, one and the same conspiracy”.

59.  I accordingly do not find Innocente to be a persuasive or reliable guide to the law of autrefois acquit.

60.  That leaves the evidence to be adduced as a possible test of substantial similarity.  As remarked in Pearce (at 619 (§27), echoing Scalia J in the US Supreme Court), a test of evidence is “unstable in application”.  It is not practical.  Even if it were workable as a test, in this case the evidence would be materially different since another bank account and a different period are involved.

61.  Finally, I note 2 points.

62.  First, it is true that the Hong Kong charge has been amended. 

63.  Assume that it was amended because the Government realised that a charge including the same period and similar bank accounts as those examined by the Macau Court might lead to a finding by the Court of double jeopardy.

64.  If that were the basis upon which the charge was amended, Judge Wright (at Ruling §55) thought that there was nothing wrong.  On the contrary, he believed that the prosecution would have acted “responsibly” and “as it was obliged to do, considered its position and amended the charges”.

65.  Mr. McCoy has heavily criticised the Judge's statement.  But I cannot find anything erroneous in Judge Wright's conclusion.

66.  Second, as I mentioned, Judge Wright considered whether to exercise the Court's independent discretion to stay proceedings for abuse of procedure.  He saw no good reason for imposing a stay on that account.  I am unable to say that this exercise of his discretion was unreasonable.  Further, as I have observed above, autrefois acquit having been rejected by the Judge, there was no additional basis for considering a grant of stay on some wider formulation of that plea.

III.  CONCLUSION

67.  The Applicants' judicial review application is dismissed.  I shall now hear the parties on costs.