HKSAR v. SIT YI KI AND OTHERS

HCCC 115/2021

[2024] HKCFI 3533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 115 OF 2021

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REASONS FOR RULINGS ON D1’S APPLICATION FOR FURTHER AND BETTER PARTICULARS; AND
FOR AN INDICATION FROM THE COURT TO THE PROSECUTION TO AMEND THE INDICTMENT

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1.  The defendants were convicted after trial of one joint count of “conspiracy to carry out false trading”, contrary to sections 295(1), (6)  and 303(1)  of the Securities and Futures Ordinance, Cap 571 (“SFO”), and sections 159A and 159C of the Crimes Ordinance, Cap 200. A full summary of the facts is set out in the Reasons for Sentence.

2.  D1 applied for further and better particulars of the count at trial, as well as an indication from the court that the prosecution should amend the indictment so as to reflect the possibility of there being a parallel but separate conspiracy between Nelson Chan and Suen Man that did not involve D1, D2 or D3.

3.  I refused both the applications.  These are my reasons.

D1’S APPLICATION FOR FURTHER AND BETTER PARTICULARS

4.  D1’s application for further and better particulars related specifically to the provision of particulars on whether holders of the 156 securities trading account, be it a person or a corporation, were co-conspirators.  If so, it was D1’s submission that they should all be named as such in the indictment.

5.  The prosecution refused to provide the particulars on the ground that they were not able to do so. They did not have sufficient information on who inserted the 30,000 odd orders via the internet in the 6-month charge period using those securities accounts, and so are unable to say if the 156 account holders were in fact the persons or entities who inserted the trade orders on instructions of the co-conspirators, or if the trading was handed over to be conducted by someone other than the account holders.

6.  This lack of evidence was the reason why those account holders were not named in the indictment as co-conspirators.  

7.  D1 also mentioned a Lau Yik Kwan (“Lau”)  in their application, saying that the opening speech of the prosecution seemed to suggest that Lau had a significant role to play in the global conspiracy involving all the named co-conspirators, and as such, Lau ought himself to have been named in the indictment as a co-conspirator.  

8.  The prosecution’s response was that there was insufficient evidence that Lau was involved in the conspiracy.  The evidence suggested that Lau was not the real owner of the Mighty Edge shares under his name. A  declaration of trust of those shares being held on behalf of Isidor Subotic, someone linked to Eden Investment, the company that provided $16 million to Nelson Ho and Suen Man to put in motion the false trading Action Plan was found in D1’s residence.  There was also evidence of money going back to Eden via D3’s account after the collapse of Ching Lee shares.   

9.  Therefore, other than Lau’s overt acts, the prosecution would not be able to prove how much knowledge Lau had in relation to the conspiracy. Those were the reasons why Lau had not been named as a co-conspirator in the indictment.

10.  Having heard parties, I accepted the submissions of the prosecution and found that there were no further and better particulars that could be provided as sought.  I also found that D1’s right to a fair trial will not be prejudiced in any way even if the sought particulars were not given.

11.  I, therefore, refused D1’s application for further and better particulars.

D1’S APPLICATION FOR AN INDICATION FROM THE COURT FOR THE PROSECUTION TO AMEND CHARGE

12.  D1’s other application was for the court to indicate to the prosecution that they should amend their indictment, or include an alternative count, so as to avoid a potential duplicitous charge being laid.  

13.  It was D1’s submissions that in addition to the allegation that D1, D2, D3, Nelson Ho and Suen Man belonged to a global conspiracy, there was a possibility that the evidence showed that there was a second, different and distinct conspiracy just between Nelson Ho and Suen Man.  If the jury eventually found that there was such a separate conspiracy between Nelson Ho and Suen Man that did not involve D1, D2 or D3, and if there was no alternative count for that separate and distinct conspiracy, D1 was of the view that the jury may wrongly convict D1, D2, or D3.

14.  With the potential of there being two conspiracies, Mr. Li for D1 said that the charge is “potentially duplicitous” and asked the court to indicate to the prosecution that they should include a separate charge for the Nelson Ho and Suen Man conspiracy.  

15.  Upon my inquiry, Mr. Li accepted that this court did not have the power to order the prosecution to lay a particular charge or to amend a charge in a particular way, or to add an alternative count.  Be that as it may, Mr. Li said the court could, and should, give such an indication, and the prosecution will have to suffer the consequences should they choose to ignore that indication.  Mr. Li said this: “As to potential duplicity, the prosecution can make their case clearer by pleading their case, if they decide not to go for separate conspiracies, we wish the prosecution to make it clear at this stage.”

16.  Mr. Derek Chan S.C. did make clear by giving a short and definitive answer: “Yes, we are alleging a global conspiracy, and not charging a smaller one.” It was the prosecution’s position that if D1 can convince the jury by making submissions based on the evidence placed before the jury by the prosecution (not in any way suggesting a reversal of the burden of proof)  that there is a smaller conspiracy distinct and independent to the global one, then the defendants should be entitled to an acquittal.  

17.  Having heard submissions, I found that if it is the prosecution’s case that there had been only one global conspiracy, then it was open for them to bring the prosecution and frame the charge accordingly, and to try to prove their case on that basis and to suffer the consequences.

18.  As such, I refused D1’s application for the indication they sought.