R. v. KONG YUE KWAI

IN THE COURT OF APPEAL

1996, No. 72
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant, who was D1 in the trial below seeks leave to appeal against his conviction for inciting LO Chi-sing to commit the crime of incitement to commit a crime. Mr Lo - who was referred to as Ricky - was an undercover police officer.

2. He was required to infiltrate triad societies. In October 1994 when he went to the applicant's garage he was approached by the applicant and asked if he would agreed to beat up a man called Woo Siu-wai for $3000. The applicant said he didn't want weapons to be used. He also agreed that as Ricky was known to Mr Woo he should arrange for someone else to commit the assault.

3. Ricky approached D2 and D3, in the proceedings below, and they agreed to undertake the job. Plans were made for the assault including a visit to the place where Mr Woo parked his car. The assault did not occur as there were too many police officers in the vicinity when it had been planned to take place.

4. Ricky kept his superiors briefed concerning his activities including the present case. He was the main witness and was accepted by Davies DJ as a truthful and reliable witness. The other evidence relied upon by the prosecution was an inculpatory statement which was admitted as evidence after a voir dire.

5. Davies DJ accepted the charge had been proved beyond reasonable doubt and convicted the applicant.

6. The main ground of appeal advanced by Mr Philip Wong in his written submission is that you cannot be guilty of incitement to incite another person to commit a crime in circumstances such as the present case. Authority for this proposition was R. v. Mohammed Sirat (1986) 83 Cr.App.R. 41. The facts of that case were however rather different to those in the present case.

7. The main difference being that the person being incited to commit the crime was non-existent.

8. Parker LJ had said this at p43 of the report:

" There is no doubt that at common law incitement to commit a crime is an offence. This being so, it follows logically that if A incites B to incite C to commit a crime, e.g. to wound D, A is guilty of incitement to commit a crime, namely, incitement. This however is subject to the qualification that if C is non-existent, being either dead or fictional, A would not be guilty, because he would be inciting the commission of an impossible crime. B cannot incite C, because C does not exist. On the basis of Fitzmaurice (1983) 76 Cr.App.R. 17; [1983] Q.B. 1083, the judge rightly so directed the jury. Hence, since the jury convicted on count 2, it follows that they must have concluded that the appellant had not urged Bashir to get the fictional man and no other to do the need."

9. In the present case there is no doubt concerning the existence of D2 and D3 in the proceedings below. The case is therefore clearly distinguishable.

10. Before us Mr Wong submitted that the applicant had been convicted of the wrong charge. He should have been charged with a conspiracy to commit the crime. He agreed however that the charge which had been laid against the applicant was not wrong. This concession would appear to us to be fatal to this application.

11. As we have said the judge accepted the evidence which was before him and there are no grounds for us to interfere with this conviction. The application is therefore dismissed.