HKSAR v. CHAN PUN CHUNG AND ANOTHER

HCMA 364/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO.364 OF 1999

(ON APPEAL FROM SKCC 3535 OF 1998)

------------

------------------------

D E C I S I O N

------------------------

Stuart-Moore VP (giving the decision of the Court) :

1. This is an application under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap.484, for a certificate that points of law of great and general importance are involved in the decision of this Court which was handed down on 3 February 2000. There are three questions posed on the basis of which Mr Ross, on behalf of the applicants, has invited the Court to grant a certificate. These are in the following terms:

1. Conduct found to amount to a common law offence and occurring before the date of its abolition may be prosecuted after the date of abolition.

2. The common law offence of conspiracy may be prosecuted after 2 August 1996 even though the conduct found to amount to the offence occurred before that date.

3. On a Magistracy Appeal the Court of Appeal may, for an offence charged, substitute another offence and enter a conviction for the latter offence :

(a) in exceptional circumstances, and

(b) when a defendant has not given evidence at trial, and

(c) when a defendant has, after verdict, changed his instructions as to his defence.

2. The first and second questions relate to the abolition on 2 August 1996 of the common law offence of conspiracy (other than conspiracy to defraud) and its replacement by statutory conspiracy. The conspiracy took place before 2 August 1996, but proceedings were not commenced until 18 November 1998.

3. Mr Ross' argument during the appeal that proceedings for conspiracy at common law could only be sustained in the two situations which are covered by section 159E(7) of the Crimes Ordinance was rejected by this Court. He sensibly conceded, as it was expressed in the judgment at page 8F, that he :

"... was not saying that conduct prior to 2 August 1996 which would then have been unlawful because it constituted the offence of conspiracy at common law has, by virtue of the abolition of that offence and the limited savings effected by the transitional provisions, been retrospectively rendered lawful. That conduct would continue today to be found to be unlawful if the courts had the power to consider it. ..... The conduct has not been made lawful. It remains unlawful..."

4. Mr Ross agreed that the legislation could not have intended such an offence to be unenforceable by prosecution and that any omission in the transitional provisions of the legislation is likely to have been inadvertent.

5. Mr Saw SC, on behalf of the respondent, has put the matter in his written submissions very simply. He submitted that the applicants' case on appeal had been that whilst it was accepted that the legal proposition Mr Ross had advanced was not in accordance with the intention of the legislation, and that the conduct with which the applicants had been charged amounted to an offence, they were nevertheless entitled to say that the authorities were precluded from prosecuting them because the interpretation of the legislation Mr Ross had advanced admitted of such a narrow construction. In the light of Mr Ross' concessions and the basis on which the appeal had been advanced, Mr Saw argued that the Court of Appeal was required by section 19 of the Interpretation and General Clauses Ordinance, Cap.1, to give to the questioned legislation "such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit".

6. It is apparent to this Court, as we made clear in the judgment, that the true intent, meaning and spirit of the Ordinance was to ensure that those who had committed offences of conspiracy prior to 2 August 1996 were open to prosecution for common law conspiracy after that date. Mr Ross' concession effectively made the outcome of the appeal inevitable.

7. As to the third question which has been posed, this Court, when considering its power to substitute a conviction for conspiracy at common law in place of statutory conspiracy, was applying the words of the relevant legislation. To adopt Mr Saw's phrase, there has been no groundbreaking development in the existing law in this respect and there is no ambiguity in the legislation. The constraints placed by the Court's decision in Fai Ma Trading Co. Ltd v. Lai [1989] 1 HKLR 582 when deciding to substitute an offence contrary to common law and to enter a conviction upon it were fully borne in mind.

8. So far as paragraphs (b) and (c) are concerned, these are, again as Mr Saw correctly pointed out, unique to this case and cannot in any event be said to be of great and general importance.

9. Having regard to the reasons we have given, we have been unable to find any point of law of great and general importance.

10. Accordingly, it is our decision to decline to certify any of the points raised.