THE QUEEN v. CHAN HON MUK

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J U D G M E N T

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Power, J.A.:

1. The applicant CHAN Hon-muk was convicted by Judge Longley of conspiracy to handle stolen goods and was sentenced to imprisonment for three years. He now appeals against that conviction.

2. The charge upon which he was convicted was an alternative charge to one of conspiracy to steal which he faced with two other defendants, CHAN Kai-tai and CHEUNG Shu-shum. It was alleged that the three defendants between 1st January 1988 and 21st June 1988 in Hong Kong conspired together with persons unknown to handle stolen goods namely Toyota Crown motor vehicles.   The prosecution case was that they were members of a gang which was stealing Toyota motor vehicles and taking them to a warehouse at Shek Wu Hui Village in Sheung Shui and dismantling them.

3. There is only one ground of appeal which states that "the appellant was convicted of an offence unknown to the law, namely, conspiracy to handle stolen goods, contrary to common law". The argument of Mr. McCoy, who appears for the appeccaut, is a bold one. He submits that s.82 of the Interpretation and General Clauses Ordinance, taken together with S. 90 (2) & (4) thereof, has, except it would seem for conspiracy to defraud, abolished the common law offence of conspirary as regards all offences created by Ordinance. He submits that the sections have exactly the same effect as s.1 and s.5 of the Criminal Law Act 1977. He acknowledges that s.5(1) expressly stipulates that "subject to the following provisions of this section the offence of conspiracy at common law is hereby abolished" and that no such words appear in the Interpretation and General Clauses Ordinance but contends, nonetheless, that the clear and direct implication arising out the words there used is that it was the intention of the Legislature to do away with the offence of common law conspiracy to commit statutory offences.

4. It is necessary to set out these sections in full:

"82. (1) Where –

(a) any Ordinance confers a power or imposes a duty which is to be exercised or performed consequent upon a conviction of an offence or in relation to a person who is detained in custody for an offence; or

(b) a reference is otherwise made in any Ordinance to an offence,

then that power or duty or that reference shall be deemed to be also exercisable or performable consequent upon a conviction of, or include a reference to, as the case may be –

(i) an attempt to commit that offence:

(ii) aiding, abetting, counselling or procuring that offence;

(iii) a conspiracy to commit that offence; and

(iv) an incitement to commit that offence.

(2) Subsection (1) shall apply to powers of imposing, pecuniary penalties and of forfeiture, seizure and search, and to powers and discretion's to cancel, suspend or refuse to issue any licence, permit or other authorization, but nothing in this section shall apply to any offence for which a sentence of death may be imposed, or be deemed to authorize the imposition of any sentence of imprisonment otherwise than in default of payment of any pecuniary penalty which may be imposed by virtue of this section."

"90. (2) Where a person is convicted of –

(a) [Deleted, 12 of 1986, s.2]

(b) conspiring; or

(c) incitement,

to commit an offence for which a maximum penalty is provided by any Ordinance, and no penalty is otherwise provided by any Ordinance for such conspiracy or incitement, he shall be liable to be sentenced to that maximum penalty.

"90. (4 ) Where a person is convicted of the offence at common law of conspiracy to defraud, he shall be liable to imprisonment for 14 years."

The former section can be reduced to the words upon which Mr. McCoy actually relies -

"Where a reference is made in any Ordinance to an offence that reference shall be deemed to include reference to a conspiracy to commit that offence".

Put in full his argument as we understand it rests on two propositions: first that the effect of s.82 and 90 (2) is to render a conspiracy to commit a statutory offence a statutory conspiracy and second, that statutory conspiracies and common law conspiracies are mutually exclusive. It follows therefore, so he contends, that apart from a conspiracy to defraud, specifically preserved by s.90(4), common law conspiracies are necessarily abolished.

5. His authority for the second proposition rests on R. v. Ayres [1984], A.C. 477 and R. v. Cooke, [1986] A.C. 909, but we have to observe that statutory conspiracy is a criminal law fairly recent introduction into the English criminal law.  It has not been specifically introduced into our legislation and we think it beyond the bounds of possibility that if the Hong Kong legislature had intended to follow suit it would have done so, not by using the clear language of the English statute, but by amending, in 1983, s.90 by the introduction of subsection (2), with a further amendment in 1986, by the introduction of subsection (4), to confirm the exclusion of conspiracies to defraud (s.82 was enacted in 1966).

6. Furthermore, with the greatest respect to Mr. McCoy, and despite strenuous efforts on our part, we are unable to comprehend how the words of the sections can possibly be construed to give the meaning for which he contends. We believe that, contrary to his suggestion that "the great majority of conspiracie in Hong Kong are statutory conspiracies", the great majority, if not all - as at present advised we can recall no statutory conspiracy remain common law conspiracies. These are usually defined as "agreements to do an unlawful act or a lawful act by unlawful means": see Smith & Hogan, Criminal Law, 5th Edition, p. 227. Handling stolen goods is an unlawful act by reason of s.24 of the Theft Ordinance, Cap. 210. An agreement to do so is therefore quite properly described as a conspiracy contrary to common law.

7. For this reason the application for leave to appeal must fail, and we need not deal with other matters which Mr. McCoy advanced against the application of the proviso, should the appeal have been successful.