HCCC000373B/1995
1995, No.372 and 373
(Consolidated)
(Criminal Jurisdiction)
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H E A D N O T E
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Trial originally with 5 defendants on a single count of conspiracy to rob - only evidence against 2 defendants from a witness of a conspiracy to steal - whether conspiracy to steal an alternative offence to conspiracy to rob under s. 51(2) of Cap. 221 - the 2 defendants acquitted by jury after prosecution offered no further evidence - discharge of jury - whether the remaining defendants could have a justifiable sense of grievance - whether prejudice to the remaining 3 defendants - whether the prosecution's continued proceeding against the remaining 3 defendants an abuse of process - whether the prosecution bound by their representations or agreements on proposed amendment to indictment and on edition of the cautioned statements of the remaining 3 defendants - whether the remaining defendants had relied on the representations to their detriment
Held:
(1) a conspiracy to steal is an alternative offence to a conspiracy to rob pursuant to s. 51(2) of the Criminal Procedure Ordinance, Cap. 221 insofar as the evidence proves one single conspiracy and not two conspiracies and there is evidence of the nature of the conspiracy pointing to the alternative offence;
(2) the offering of no further evidence against 2 defendants resulting in their acquittal did not by itself cause prejudice to the remaining defendants or entitle the remaining defendants to have a justifiable sense of grievance unless the conspiracy to be proved against them was one and the same conspiracy in respect of which the 2 defendants were acquitted;
(3) the alleviation of the prosecution and the court from explaining to the jury that there was no evidence against the 2 defendants whereas there was evidence against the remaining defendants was not an unfair advantage obtained by the prosecution by offering no further evidence against the 2 defendants;
(4) by reason of (2) and (3), the proceeding against the remaining defendants was not an abuse of process;
(5) the prosecution were bound by their representations insofar as the defence had acted upon them to its detriment; the court had jurisdiction to intervene to disallow the prosecution to depart from their representations;
(6) there is no requirement in law for identifiable persons not before the court who were conspirators with the accused persons to be stated on the indictment, save for the purpose of enabling the accused persons to know the exact nature of the allegations against them and to facilitate them in the preparation of their defence.
1995, No.372 and 373
(Consolidated)
(Criminal Jurisdiction)
IN THE HIGH COURT OF HONG KONG
CRIMINAL JURISDICTION
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| BETWEEN | | |
| THE QUEEN | |
| | |
| and | |
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| CHAN LAP MAN, RAYMOND & 4 OTHERS | |
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Coram: Hon. Woo, J. in Court
Dates of hearing: 11, 14 and 15 October 1996
Date of delivery of ruling: 16 October 1996
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R U L I N G
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1. This used to be a trial involving five defendants on a single charge of conspiracy to rob, and the particulars as stated in the Amended Indictment were that D1, D2, D3, D4 and D5
"on divers days between the 1st day of December, 1994 and the 28th day of January, 1995 in Hong Kong, conspired together and with other persons to rob the ASG (Hong Kong) Ltd., Sunshine Kowloon Bay Cargo Centre, in Kowloon of a quantity of telephones."
2. The first part of the trial was in respect of the admissibility of cautioned statements allegedly made by D1, D2, D4 and D5. There was no dispute regarding the cautioned statements of D3. On the 33rd day of the hearing, the voir dires were concluded by the court announcing rulings that cautioned statements were excluded and the cautioned statements of D1, D4 and D5 were admissible.
3. After my rulings, counsel for the prosecution and defence agreed amongst themselves to have the cautioned statements to be adduced by the Crown before the jury to be empanelled edited in such a way that all the references to the names of the defendants in each statement, apart from the maker of the statement, would be deleted. That was on the basis that any statement or admission made by a defendant out of court is only evidence against himself and not evidence against any other defendant.
4. On the 38th day, a jury was successfully empanelled and the prosecution's opening address to the jury was on the basis that there was one conspiracy to commit robbery perpetrated by all the five defendants. In her opening, Miss Millar for the Crown told the jury that the evidence to be adduced by the prosecution would consist of testimony of witnesses and confessional statements made by some defendants. Miss Millar had informed the court and counsel for the defence that there were two civilian witnesses, namely Mr CHUNG Chun-fai ("Chung") and Mr LAI Wen-shing ("Lai"), who would give evidence of conversations between each and some of the defendants about the conspiracy, but Lai was not in Hong Kong and he might not be available to give evidence.
5. Miss Millar then proceeded to call Chung as the first prosecution witness. Chung related to the court conversations he had with D2 and D3 together on two separate occasions, one around Christmas 1994 and the other sometime in January 1995, in each of which D2 and/or D3 asked Chung to lend them a lorry for the purpose of doing a job relating to mobile telephones on the 8th Floor of Sunshine Cargo Centre. The conversations might amount to evidence of a conspiracy to commit theft of mobile telephones involving D2 and D3. There was no mention whatever in the conversations that force would be used in the job. Quite on the contrary, it was mentioned that an insider by the name of Ah Fung (there is material in the depositions that D4 was known by this name) would be there to switch off the anti-theft alarm. Chung also told the court that subsequent to the second conversation with D2 and D3, there was a conversation with D1 who said that he had posed as a transportation worker to go to Sunshine Cargo Centre to make observations, and he had been told to do so by D2.
6. As had been orally agreed by counsel for the prosecution and the defence, the names of the defendants which had been mentioned in such conversations between witnesses and one or more defendants would have to be excluded from the jury's consideration, for such conversations were not evidence against the defendants whose names were mentioned but who were not present at the conversations. Despite my warning to Chung in the absence of the jury at the commencement of his evidence, Chung blurted out the name of D4 where D4 was not present at the conversation between Chung and D2 and D3 and the name of D2 in Chung's conversation with D1. The court asked the jury to disregard the reference to the name of D2 and would in due course ask the jury to ignore the name of D4 in the relevant conversations.
7. On the 39th day of the hearing, some arguments were raised by counsel in view of the evidence of Chung and on the assumption that Lai, the only other civilian witness who had conversations with some of the defendants, would not be called, as to whether section 51(2) of the Criminal Procedure Ordinance, Cap. 221 would enable the prosecution to rely on an alternative offence of a conspiracy to commit theft against the defendants on the basis of the charge on the indictment. Those arguments were raised at the time when counsel for D2 and D3 made an application to stop the case against D2 and D3 in respect of the charge on the indictment. I ruled that the application was premature as the prosecution had yet to close its case, and I declined to make a ruling on the applicability of s. 51(2).
8. On the 40th day of the hearing, at my invitation, counsel further addressed me as to whether an alternative offence of conspiracy to steal was open to the jury pursuant to s. 51(2). Eventually, I ruled as follows:
"I look at the wording of section 51(2) of the Criminal Procedure Ordinance, Cap. 221 which in my view is clear that allegations of a robbery amount to or include, whether expressly or by implication, an allegation of theft, another offence.
However, conspiracy, being an agreement, must be viewed with great care. A conspiracy to rob theoretically includes a conspiracy to steal, for robbery includes stealing, but additionally with force. If the charge on the indictment is a conspiracy to rob and the evidence at the trial points to a conspiracy to steal, I am of the view that s. 51(2) applies and gives the court the power to leave the alternative of a conspiracy to steal to the jury. However, that is based on the premise that the conspiracy is one and the same conspiracy and the evidence only proves the exact nature of the conspiracy.
On the other hand, if there are more than a single conspiracy, one is to rob and the other is to steal, as in the case of Barnard 70 Cr App R 28, there are two different conspiracies to which s. 51(2) cannot properly apply."
9. After my ruling, counsel for D1, D2 and D3 applied to defer their cross-examination of Chung until the prosecution had first clarified the position whether these defendants faced one or more than one conspiracy. Miss Millar's hope to call Lai still lingered at the time. Mr Chan for D2 and Mr Wan for D3 asked the prosecution to decide whether any amendment to the indictment would be sought if Lai was not or could not be called. Mr Wan further put the Crown on notice that its not making the position clear would hamper D3's position in the cross-examination of Chung as he did not know if D3 was faced with one conspiracy to steal, or one conspiracy to rob, or more than one conspiracy.
10. On Thursday, 10 October 1996, the 41st day of the hearing, before Chung's cross-examination by Mr Wong for D1 was to resume, the prosecution offered no further evidence against D2 and D3. Miss Millar asked me to acquit D2 and D3. She told me, inter alia, the following:
a) Lai would not be available to give evidence;
b) the only evidence against D2 and D3 was the evidence of Chung;
c) Chung had not come up to proof in that first, in his witness statement, Chung said that in his conversation with D2 when D2 told him that D2 wanted a lorry for the job, he understood the term "job" to mean a "robbery", but Miss Millar was not allowed by the court to ask Chung what was his understanding of the term "job" used by D2; and secondly, Chung's statement stated that D2 told him that there would be an insider "to fix the cats" whereas in evidence, Chung said that D2 told him that the insider would disarm the anti-theft alarm;
d) the evidence of Chung might amount to a conspiracy to steal, but not to rob, against D2 and D3;
e) there was more than one air-freight company on the 8th Floor of Sunshine Cargo Centre;
f) the conspiracy to steal against D2 and D3 was a distinct and different conspiracy from the one to rob against D1, D4 and D5 as admitted by them in their cautioned statements to be adduced; and
g) as D2 and D3 were facing a conspiracy to steal different from the conspiracy to rob charged on the indictment, the Crown offered no further evidence against them.
11. As a result, and after considering the submissions of counsel, I gave the following direction to the jury:
"As you have heard, the Crown has offered no further evidence against D2 and D3. The only evidence that the Crown has against D2 and D3 is the evidence of the first witness Mr CHUNG Chun-fai, and his evidence discloses no case against D2 and D3 as charged on the indictment. The evidence of Mr Chung may amount to a conspiracy which is a different conspiracy from that one charged on the indictment."
12. The jury accordingly returned a verdict of not guilty regarding D2 and D3, and they were acquitted.
13. After the acquittal of D2 and D3, Mr Wong on behalf of D1 applied to me to discharge the jury on the ground that the evidence of Chung, as accepted by the Crown, pointed to a separate conspiracy different from that charged on the indictment, and as such Chung's evidence was prejudicial to D1 without any probative value. Miss Millar for the Crown took a neutral stance and left the matter to the court. Mr Iu for D4 and Miss Toh for D5 told me that they did not know what position to take regarding Mr Wong's application unless Miss Millar indicated how the Crown would proceed if the jury was discharged. Miss Millar informed the court that in case the jury was discharged by the court,
a) the Crown would proceed against D1, D4 and D5 before a new jury;
b) the Crown would seek to amend the indictment by simply deleting the names of D2 and D3 from the particulars of the offence; and
c) the agreed edition of the cautioned statements of D1, D4 and D5 to be adduced as evidence by the Crown would remain intact, including the deletion of the names of the defendants in them other than the makers.
14. On that basis, both Mr Iu and Miss Toh raised no objection to D1's application to discharge the jury. On D1's application, I ruled as follows:
"Mr Chung's evidence points to D1 being involved in something which may be construed as an act in furtherance of a conspiracy, which the Crown concedes to be a different conspiracy from the one on the indictment or proposed amended indictment. The evidence of Chung is therefore totally irrelevant and will prejudice D1. The jury have heard just part of Chung's evidence and no other evidence in this trial. In all the circumstances, I feel it just that the present jury be discharged and a new jury be empanelled to try this case against D1, D4 and D5."
15. Consequently, the jury was discharged. Chung was also discharged from continuing to be a witness on the basis that his evidence was totally irrelevant to the conspiracy charged on the indictment against the remaining defendants.
16. On Friday 11 October 1996, the 42nd day, before a new jury was empanelled, Miss Millar sought to re-amend the indictment with the particulars that D1, D4 and D5
"on divers days between the 1st day of December, 1994 and the 28th day of January, 1995 in Hong Kong, conspired together with HO Ming-yeung (i.e., D2), LUK Kan-hung (i.e., D3) and with other persons to commit robbery."
17. Miss Miller also informed the court that she would re-edit the cautioned statements of D1, D4 and D5 so that the names of D2 and D3 and the other defendants (albeit they were not the makers) referred to in those statements would be reinstated.
18. Counsel for D1, D4 and D5 opposed the application to re-amend in those terms and the proposal of Miss Millar to re-edit the cautioned statements. Defence counsel also applied to stay the proceedings on the basis of abuse of process. Their main arguments on abuse can be summarised as follows:
a) Chung's evidence disclosed a conspiracy to steal against D2 and D3, and yet the Crown chose not to offer any further evidence against them.
b) The Crown's decision to offer no further evidence against D2 and D3 was wrong in view of the clear and substantial evidence of Chung; the Crown should have waited for Lai (whose evidence might implicate D2 and D3 in respect of a conspiracy to rob); the Crown had police evidence that D2 had taken the Police to recover stolen properties, and that evidence might still be admissible despite the court's ruling that all cautioned statements of D2 be excluded; and the Crown should have asked for amendment at the close of its case to include a charge of conspiracy to steal against D2 and D3 based on the evidence of Chung.
c) The Crown's act relating to D2 and D3 was done to obtain a technical or tactical advantage in that the Crown opened its case on one conspiracy and took the position that the conspiracy to steal supported by the evidence of Chung was a distinct and different conspiracy; by offering no further evidence against D2 and D3 and dropping them from the trial would enable the Crown to proceed with one conspiracy without the embarrassment and complexity caused by the two different and separate conspiracies, i.e., one to steal as might be borne out by the evidence of Chung, and the other one to rob as might be borne out by the cautioned statements of D1, D4 and D5.
d) The Crown's position to prove one conspiracy to rob was strengthened by the jury being discharged and another jury to be empanelled because a new jury would not hear Chung's evidence.
e) According to the depositions and the evidence of Chung, there was but one single conspiracy to steal or to rob, because D4 was the only insider in that conspiracy, and that D4 could not have been the insider in two separate and different conspiracies.
f) The Crown's act left a sense of grievance on the remaining defendants, because D2 and D3 were (according to the depositions and the evidence of Chung) the prime movers of the conspiracy. Justice must not only be done but must be seen to be done. Dropping D2 and D3 but continuing to charge D1, D4 and D5 created a justifiable sense of grievance on the remaining defendants and caused injustice. The Crown's proceeding against the remaining defendants would constitute an abuse of process.
g) The Crown's proposed re-amendment to the indictment was different from that as indicated by Miss Millar on the previous day and the proposed re-edition of the cautioned statements differed materially from what had been formerly agreed among counsel, which supported the ground relied on by the defence that the dropping of D2 and D3 was from the Crown's motive to obtain a tactical advantage over the remaining defendants, amounting to an abuse of process of the court.
19. Mr Wong for D1 argued further that by viewing Chung's evidence together with D1's cautioned statement, i.e., exhibit PP24, which was the only evidence against D1, it was clear that both pointed to the same conspiracy. Mr Wong referred me to the evidence of Chung that D1 told Chung that he had posed as a transportation worker in his visit to Sunshine Cargo Centre, and D1 paid the visit because he was told by D2 to do so. Mr Wong drew my attention to exhibit PP24 and argued that there were four matters in it that could show that the conspiracy referred to in the exhibit and in Chung's evidence was one and the same conspiracy, namely, D2 and D3 were similarly involved, the same building was the target, the conspiracy was conceived in the same period of time, and the visit to Sunshine Cargo Centre in the answer to question 36 in the exhibit might be the same as the visit by D1 referred to in Chung's evidence. On that basis, Mr Wong argued that it would be wrong for the Crown to proceed against D1 while it had offered no further evidence against D2 and D3 on the same and only one conspiracy.
20. Mr Iu and Miss Toh also submitted that Miss Millar's proposals referred to in g) above would cause prejudice to D2 and D3 in that they did not object to Mr Wong's application to discharge the jury relying on the basis as told them by Miss Millar on the day before which basis was now falsified. With that jury, both D4 and D5 would be able to rely on the Crown's opening address that there was a single conspiracy to rob, but the evidence of Chung pointed to a distinct and different conspiracy to steal involving the same members. The jury would have to decide whether D4 and D5 were involved in a conspiracy to rob, or a conspiracy to steal or both or not at all. With a new jury, the Crown was able to open and prove only one conspiracy, which is one to rob. D4 and D5 had on the basis of Miss Millar's indication on the 41st day refrained from raising any objection to the discharge of the jury. It would be wrong to allow the Crown to retract its position as so indicated because D4 and D5 could not revert to their former position before the discharged jury.
21. Mr Iu further argued that it would have been difficult for the Crown to persuade the discharged jury, who had heard the evidence of Chung, to convict D4, who was in both Chung's evidence and the remaining defendants' cautioned statements the only and same insider in both conspiracies, one to steal and one to rob. The basis of the Crown to offer no further evidence against D2 and D3 that ASG (Hong Kong) Ltd. ("ASG") was not the only air-freight company on the 8th Floor of Sunshine Cargo Centre was wrong because according to Mr Iu's instructions, that was the only one air-freight company on the 8th Floor, and that was the only company with mobile telephones. D4's cautioned statements did not touch upon the disarming of the anti-theft alarm and D4 was not even an employee of ASG making it abundantly clear that he could not possibly switch off the alarm.
22. Mr Iu submitted that at least the Crown should be bound by its representations about the proposed amendment to the indictment and its agreed deletion of the defendant's names from the cautioned statement except the maker, or else the court should stay the proceedings against D4, for D4 would suffer prejudice because of the discharge of the jury. Mr Iu argued that the Crown should not be allowed to renege from its representations when the other side had acted upon them to its detriment and that the court had power to hold the Crown to its representations so as to prevent the prejudice.
23. Regarding the propriety of offering no further evidence against D2 and D3, Miss Millar's reasons were as follows:
a) When cross-examined by Mr Wong for D1, Chung said he was not sure if D2 and D3 were serious about their plan. The evidence might at most amount to a possible conspiracy to steal.
b) The only link between the possible conspiracy revealed by Chung's evidence and the conspiracy disclosed in the remaining defendants' cautioned statements was by way of the same target address of the 8th Floor, and that could not be substantiated because the Crown knew that there were 3 different companies on the 8th Floor of Sunshine Cargo Centre at the material time. The Crown had to disclose this information as unused material. It was on the evidential basis that the Crown took the position that Chung's evidence dealt with a separate conspiracy different from the one charged on the indictment. Chung's evidence did not point to a common enterprise involving all the five defendants. So the Crown could not proceed against D2 and D3 on a separate conspiracy to steal as revealed by Chung in the same trial. Nor could the Crown run a separate trial in respect of that conspiracy against D2 and D3.
c) Chung did not come up to proof because the court did not allow her to ask Chung about what he understood to mean by "job", which was according to his deposition, robbery. Also Chung said that D2 had an insider to switch off the alarm instead of what was stated in his deposition as having an insider "to fix the cats", by which she understood to mean to deal with the security personnel (connoting some force would have to be used to constitute a robbery).
d) Lai who might give evidence implicating D2 and D3 on a conspiracy to rob could not be called.
24. Regarding the alleged prejudice suffered by Chung's evidence no longer being available to the remaining defendants, Miss Millar stated that the Crown could tender Chung for cross-examination by their counsel, or could even agree to Chung's statements being admitted by agreement with necessary deletions. If the remaining defendants did not accept this offer, then they could not rely on the absence of Chung as a ground for prejudice.
25. Miss Millar argued that the Crown did not have to seek leave of the court to resile from agreed matters. Further, the proposed amendment to the indictment as indicated by her on the 41st day of the hearing was not agreed, just offered. The agreed edition of the cautioned statements was just to delete the names of defendants who were not the makers. It was the generosity of the Crown to offer to delete all the names of conspirators over and above the names of such defendants. The Crown could always change from that expressed position. Further, as D2 and D3 had been discharged from this trial, they were no longer defendants and her agreement that all defendants who were not the maker of the statement be deleted was not breached. She could by reason of this change of circumstances reinstate D2 and D3's names in the cautioned statements of D1, D4 and D5. The reason for her wish to reinstate the names of D2 and D3 in the particulars of offence on the indictment was to follow the law as stated in para. 33-38 of Archbold 1996 (to which I shall return later), and that therefore she wished to reinstate D2 and D3's names in the cautioned statements.
26. She referred me to R. v. E. C. Harris [1991] 1 HKLR 389 to say that the Crown could always resile from its former position. The case was where the Attorney General told Harris that no prosecution would be brought, and that decision was based on outside counsel's advice. The Attorney General then prosecuted Harris upon counsel's further advice. The Court of Appeal held that there was no abuse of process.
27. If she was wrong, Miss Millar asked the court to grant leave for her to renege from her former representations. As the court had power to grant leave to a party to withdraw from a formal admission under s. 65C of the Criminal Procedure Ordinance, Cap. 221, the court must have power to grant leave for the Crown to withdraw from its former representations. Alternatively, she contended, the court being expressly given power by a statutory provision to deal with a formal agreement under s. 65C meant that the court had no power to deal with a less formal situation. Here the representations of the Crown were informal, non-signed and constituted a non-binding agreement.
28. Anyhow, the defendants had not been able to name a single prejudice that could not be remedied by Miss Millar's offer in the alternative as to tendering Chung to be cross-examined or producing an edited statement of Chung as agreed evidence.
29. I have no doubt that the court has jurisdiction to stay proceedings where there is an abuse of process. I have been referred to a number of authorities, mainly for the purpose of showing how the courts exercised this jurisdiction, but none of them showed any facts similar to the instant case. I do not think it necessary to refer to them all. R. v. E. C. Harris, supra, was a Hong Kong Court of Appeal decision which showed that the court has jurisdiction. In DPP v. Humphrys [1976] 2 All ER 497, the House of Lords held that a judge of a superior court had an inherent power to decline to allow a prosecution to proceed if it was satisfied that it was oppressive and vexatious and an abuse of the process of the court. At pp. 527h to 528b, Lord Salmon said:
"I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred."
30. In R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte DPP (1992) 95 Cr App R 9 at 16-17, Neill LJ stated the principles and summarised the authorities on abuse of process. The principles relevant to the instant case are that "the power to stop a prosecution in its tracks is one which should only be exercised in a clear case", that "an abuse of process may exist if the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take advantage of a technicality", and that "the purpose of the exercise of this discretionary power is to ensure that there should be a fair trial according to law".
31. The applications launched by counsel for D1, D4 and D5 initially arose out of the Crown offering no further evidence against D2 and D3 resulting in their being acquitted by the jury. Their complaint is that all five were facing a charge of conspiracy, and as D2 and D3 were allowed to go free the remaining defendants should also be allowed to go free or otherwise they would harbour a justifiable sense of grievance, a fortiori, when on the evidence as a whole, D2 and D3 were the prime movers. This argument is based on the premise that D2 and D3 were in the same conspiracy as that allegedly admitted by D1, D4 and D5 in their respective cautioned statements that had been held by the court to be admissible during the voir dires and that the Crown would seek to adduce before a jury. I am not persuaded that the conspiracy to steal as may be borne out by the evidence of Chung is probably the same conspiracy to rob as allegedly admitted by the cautioned statements of D1, D4 and D5, even though counsel for the defence have drawn my attention to a number of similarities between the two, including the parties to the conspiracy or conspiracies and the target of either the planned robbery or theft.
32. In D1's cautioned statement, there is a reference to D2 telling him that some persons would be responsible for tying up people and taking things to the car (exhibit PP24, pp. 621-649 at p. 632 of the depositions). In D4's cautioned statement, there is a reference to D2 asking D4 to lend him knives for use in robbing ASG (exhibit PP37, pp. 756-791 at pp. 761-2 & 767 of the depositions). In D5's cautioned statement, there is a reference to D2 telling D5 that there was to be a robbery; and carrying a knife and tying up people were also mentioned (exhibit PP40, pp. 803-822 at pp. 805 & 808 of the depositions). These pieces of possible evidence of the planned use of force or violence were not echoed in Chung's evidence. There is a glaring absence of mention of force in the conversations related to the court by Chung between him and D2 and D3 on two occasions and between him and D1 on another occasion. Chung's evidence pointed rather to the contrary, for D4 as the insider was supposed to disarm the anti-theft alarm and make the "job" easy.
33. The Crown has never had any admissible evidence against D2 and D3 that they were involved in a conspiracy to rob. The evidence of Chung could only amount, if at all, to a conspiracy on the part of D2 and D3, and maybe D1, to steal. I accept that the Crown was not able to secure Lai to give evidence to implicate D2 and D3 on a conspiracy to rob, or else it would certainly have done so. The hope of calling Lai lingered for quite sometime, but gradually that hope had diminished into oblivion, and it was not improper for Miss Millar to decide not to wait any further. The admissions of D1, D4 and D5 in their respective cautioned statements cannot be evidence against D2 or D3 for neither of the latter was the maker. The Crown was confronted with an unenviable position that if they proceeded further against D2 and D3, these two defendants' defence would be hampered. As Mr Wan for D3 had pointed out on the 40th day of the hearing to the Crown and to the court: Was D3 facing a conspiracy to steal, or to rob or more than one conspiracy? Anyhow, there can be no evidence against D2 and D3 on a conspiracy to rob as charged on the indictment.
34. The charge of conspiracy tends to create difficulties, especially before a jury. During arguments on the applicability of section 51(2) of the Criminal Procedure Ordinance, I raised an example for counsel's consideration. A, B, C and D conferred at a meeting in which all four were present. All four agreed to misappropriate money from a bank. C and D said they would burgle the bank and stole the money they could find in it. A and B said they were going to bring weapons to disarm any security guards that might be found in the bank premises. C and D expressed their unwillingness to use any force or to bring any weapon, and that if there were people found in the bank premises, they would not commit the planned burglary. A and B however, stated that they would all the same bring along weapons and carry out their plan with force. In this example, there could be one conspiracy to steal amongst all four participants. There could be two conspiracies, one to steal among all four and another to rob between only A and B. Or alternatively, as there were two different modi operandi agreed, there were two separate and distinct conspiracies: the one between A and B was to use force (to commit robbery) and the one between C and D was not to use any force (to commit burglary or theft). The only consensus among all was the misappropriation of the bank's money, and the minds of the two pairs did not meet regarding the use of force. The difficulty that the prosecution would face in such or similar circumstances is demonstrated by the case of Barnard, supra.
35. In the instant case, the Crown was faced with great difficulty. If D2 and D3 were to remain in the trial, it would have to amend the indictment to add either an alternative offence or a separate offence of conspiracy to steal based on the evidence of Chung, which is the only evidence against D2 and D3. If the Crown was sure that the evidence of Chung pointed to a separate and distinct conspiracy from that charged on the indictment, as it had conceded, then the Crown could only proceed against D2 and D3 by adding a separate charge of conspiracy to steal. The Crown would also have to amend the charge of conspiracy to rob, which appears on the indictment at present, to delete the names of D2 and D3's from it altogether, because there is no admissible evidence against them in respect of a conspiracy to rob. D2 and D3 would be facing the added separate charge which they were not committed or indicted for. The Crown had opened to the jury on a single charge of conspiracy to rob, and in the light of Chung's evidence, the Crown would have to ask the jury to convict D2 and D3 of a separate and different conspiracy from that one upon which the Crown opened its case.
36. On the other hand, if the Crown was not sure that Chung's evidence referred to a separate and different conspiracy, then the Crown's position would be even worse. I had ruled that the availability of an alternative offence of conspiracy to steal pursuant to s. 51(2) of the Criminal Procedure Ordinance applied only to a case where all the evidence pointed to one conspiracy and it was the nature of the single conspiracy as borne out by the evidence that left open a conspiracy to steal as an alternative to a conspiracy to rob as charged. If the evidence supported two conspiracies, then s. 51(2) could not be used. If all the evidence turned out to support only one single conspiracy, then as there will be no admissible evidence against D2 and D3 on conspiracy to rob but only Chung's evidence against them on conspiracy to steal, they could be found guilty of an alternative offence of conspiracy to steal pursuant to s. 51(2). If the evidence turned out to support two conspiracies, one to rob as borne out by the remaining defendants' cautioned statements (but not evidence against D2 and D3), and the other to steal as alluded to in Chung's evidence, D2 and D3 could be found guilty of a separate charge of an offence of conspiracy to steal. However, this would cause D2 and D3 to face two charges of conspiracies, which differed from what the Crown opened on, and different from what D2 and D3 set out to face initially. If the indictment be not amended to add a separate offence of conspiracy to steal against D2 and D3, whether to retain the original charge of conspiracy to rob against them, and if the evidence turned out to prove two conspiracies, the original charge would be duplicitous and bad. Then again, one way or another, D2 and D3's positions would be prejudiced in that they would be facing the original charge with a possible alternative offence of conspiracy to steal under s. 51(2) and an added separate count of a conspiracy to steal.
37. I say all the above concerning the positions of D2 and D3 without the benefit of submissions from their counsel who had left the trial after the two defendants were acquitted. They would certainly have more to say about the prejudice to D2 and D3 had the Crown sought any amendment to the indictment to retain the two defendants in the trial.
38. The Crown took the position that Chung's evidence pointed to a possible conspiracy to steal against D2 and D3 and that was distinct and separate from the conspiracy to rob charged on the indictment. Proceeding against D2 and D3 on that basis, which was an entirely different basis from that D2 and D3 set out to defend themselves, would according to the Crown, be unfair to D2 and D3. That was the basis upon which the Crown offered no further evidence against D2 and D3. As I said before, I do not feel by looking at the cautioned statements of D1, D4 and D5 that the conspiracy to rob referred to in their statements was probably the same conspiracy referred to in Chung's evidence. The analysis of the situation in the example I gave above regarding agreements to two different modi operandi applies. The only evidence against D2 and D3 is from Chung and it points to a possible conspiracy to steal. On the other hand, the evidence against each of D1, D4 and D5, by their own respective cautioned statements, points to a possible conspiracy to rob. There must, on analysis of the evidence, be two different conspiracies. In the circumstances, I do not find that the remaining defendants should have a justifiable sense of grievance. D2 and D3 were members of a separate and distinct conspiracy from the one on the indictment with which the Crown continued to proceed against D1, D4 and D5. There are two different offences involving different defendants. The remaining defendants' sense of grievance, if at all, is not justified any more than a defendant in any trial can justifiably say that since the Attorney General has decided not to prosecute a certain person in a separate case, he should similarly not be prosecuted. I do not find a clear case being shown that the Crown has abused the process of the court.
39. Miss Millar contended that no prejudice in the proper sense could be suffered by the remaining defendants from the dropping of D2 and D3 from the trial save that the jury might be relieved from being explained the application of the Merriman principle which they might not find easy to understand. DPP v. Merriman [1973] AC 584 related to the charge of more than one defendant in a single count. At p. 607, Lord Diplock had this to say:
"Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission, or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the eighteenth century, to charge them in a single count of an indictment. Where such a count was laid against more than one defendant, the jury could find each of them guilty of one offence only; but a failure by the prosecution to prove the allegation, formerly expressly stated in the indictment but now only implicit in their joinder in the same count, that the unlawful acts of each were done in aid of one another, did not render the indictment ex post facto bad or invalidate the jury's verdict against those found guilty. To quote Hawkins again: 'On such indictment ... some of the defendants may be acquitted, and others convicted; for the law regards the charge as several against each, though the words of it purport only a joint charge against all.' "
40. The dropping of D2 and D3 from the trial would alleviate the task of the court from having to direct the jury about the fact that there is no evidence against D2 and D3 of the original charge of a conspiracy to rob but there is evidence against the remaining defendants of such a conspiracy. Mr Iu argued that the purpose of the Crown dropping D2 and D3 from the trial was to obtain an unfair tactical advantage against the remaining defendants. On this point, it is relevant to refer to the case of R. v. Derby Crown Court, ex p. Brooks (1985) 80 Cr App R 164, in which Sir Roger Ormrod delivered the judgment of the Divisional Court on an application for judicial review on the ground that the committal proceedings against the applicant was an abuse of the process of the court. At pp. 168-169 of the report, after referring to the power to stop a prosecution should only be used "in most exceptional circumstances", Sir Roger stated:
"The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable: ...
The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, as Lord Diplock said in Sang (1979) 69 Cr App R 282, 290; [1980] AC 402, 437: '... the fairness of a trial ... is not all one sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted.' "
41. The learned judge cited cases in the category under (a) above comprising the following:
a) In Brentford Justices, Ex p. Wong (1981) 73 Cr App R 67; [1981] QB 445, the prosecution issued the summons on the last day of the six months' limitation although they were not ready to proceed, deliberately to stop time running against them.
b) In Horsham Justices, Ex p. Reeves (1982) 75 Cr App R 236, the prosecution, having failed after a full hearing to obtain a committal, subsequently issued a number of summonses in much the same form, depending on virtually the same evidence as the charges in the committal proceedings, thus trying to take advantage of the rule that the plea of autrefois acquit is not available to a defendant in such a situation.
42. Looking at the circumstances of the present case, the Crown and the court may not need to explain the Merriman principle to the jury by the dropping of D2 and D3. However, that is not strictly an advantage, tactical, technical or otherwise, that the Crown obtained or intended to obtain against the remaining defendants. The facilitation of neater presentation of evidence and closing speech by the prosecution against the remaining defendants in the absence of D2 and D3 is purely coincidental. There is no unfair advantage of a technicality that the prosecution intended to obtain or could have obtained against the remaining defendants, nor do I find that the Crown's act has caused an unfair trial of the remaining defendants according to law. Defence counsel's arguments on this point fail.
43. I now turn to the objection to the Crown altering its former avowed intention as to the form of the proposed amendment to the indictment and allowing the agreed edition of the cautioned statements to remain intact. When offering no further evidence against D2 and D3, the Crown took the position that Chung's evidence against D2 and D3 related to a conspiracy to steal distinct and different from the conspiracy to rob on the indictment. That was expressly mentioned to the jury in my directions to their foreman to acquit D2 and D3. That jury had since been discharged on the application of Mr Wong for D1. Had the jury not been discharged, they would have heard the evidence of Chung and acquitted D2 and D3 on the basis that Chung's evidence pointed to a possible conspiracy which was different from the one which D1, D4 and D5 continued to face. The Crown's proposed amendment to the indictment made known on the 41st day was that the names of D2 and D3 would simply be deleted from the particulars of offence in the indictment, and the edition of the cautioned statements of the remaining defendants would remain intact, i.e., none of the defendants' names other than the maker's would appear for the jury's consumption. The names of D2 and D3 in the cautioned statements would then not be seen by the jury. But the jury might be able to remember or be reminded by defence counsel of Chung's evidence. They would undoubtedly be directed by me to ignore Chung's evidence altogether, especially his conversation with D1, as it was totally irrelevant to the charge on the indictment. Nonetheless, the remaining defendants might ask the jury to consider Chung's evidence pointing to a conspiracy to steal as to whether it was more probable than not that D2 and D3 (who were no longer before them) were involved in the same conspiracy to rob as charged, or in a different conspiracy to steal as alleged by Chung, or in both conspiracies. In the event that the jury thought that D2 and D3 were involved in the same conspiracy to rob or in both conspiracies, the jury might acquit the remaining defendants if they felt it an unfair and unequal treatment to convict these three defendants whereas the Crown had offered no further evidence against and caused them to have acquitted D2 and D3. This possibility might find support also from the Crown's opening to the jury that the case was about one conspiracy. This possible advantage no longer avails D1, D4 and D5 because the jury had been discharged. Mr Wong could not complain that D1 had lost this advantage, for it was he who applied for the discharge of the jury. Nor could Mr Iu or Miss Toh complained about it since they did not oppose.
44. It is, however, a different matter in the context of the Crown's wish to alter its avowed intentions regarding the proposed amendment to the indictment and the withdrawal of the agreement as to the edited version of the cautioned statements. Although the Crown will open its case to a new jury on the basis of a single conspiracy to rob, it proposes to add back the names of D2 and D3 in the particulars of offence and seeks to retain D2 and D3's names (or substitutions of their names by A and B and their nick-names by a and b) in the cautioned statements. To allow the Crown to do that would falsify the basis upon which Mr Iu and Miss Toh took their stance of not opposing the discharge of the jury. The offer of Miss Millar to tender Chung for cross-examination, and the alternative and even better offer of having Chung's deposition, with agreed edition, admitted by agreement, cannot remedy the situation as fully as Miss Millar would hope. The reason, as I see it, is that this time round before another jury, the Crown would unlikely be forthcoming with a concession that what Chung talked about was a distinct and separate conspiracy from the one on the indictment. I say unlikely because despite my putting forward this matter as an advantage that the remaining defendants might allege to have lost, Miss Millar did not respond with any offer. This would take away the advantage, however small, that D4 and D5 might have if the jury had not been discharged.
45. Miss Millar told me that the purpose of adding back the names or substitutions of D2 and D3 on the indictment and in the cautioned statements was to follow the law on the formulation of an indictment on conspiracy as set out in para. 33-38 of Archbold 1996, Vol. 2, as follows:
"Where the evidence discloses that the accused conspired with other persons who are not before the court, this should be averred in the indictment. If the other persons can be readily identified by the evidence their names should be inserted; if they cannot be so identified, then it is sufficient to describe them as 'persons unknown'. Sometimes, although the Crown contends that the evidence discloses the conspiracy to have been with persons not before the court, the evidence may be unclear as to which of certain identifiable persons was (or were) involved. In such circumstances, there can be no objection either to 'other persons unknown', or to 'other persons'. However, where during the course of the trial the uncertainty is resolved by evidence which is capable of founding the assertion that an identifiable person not before the court was a conspirator with the accused in the conspiracy charged, then the indictment should be amended accordingly."
46. I do not see as a matter of law why the identifiable persons not before the court who were conspirators with the accused persons must be stated on the indictment. The only benefits for such a rule seem to enable the accused persons to know the exact nature of the allegations against them and to facilitate them in the preparation of their defence by, for example, calling those identifiable persons mentioned on the indictment to give evidence challenging the existence of the conspiracy charged. Even Miss Millar has suggested that she is agreeable to substitute the names and nick-names of D2 and D3 by alphabets, both on the indictment and in the cautioned statements. The suggested exercise would be tantamount to referring to unknown persons on the indictment and is, as I see it, futile.
47. Further, there could be a construction of the events unfavourable to the Crown. If it were the Crown's maintained position that Chung's evidence only pointed to a different conspiracy, then the Crown would not have proposed to add back D2 and D3's names on the particulars of offence after informing the court and defence counsel that she would only delete D2 and D3's names from the particulars on the 41st day of the hearing. By now proposing to add back the two names, the Crown must be saying that all the five defendants, including D2 and D3, were involved in the same conspiracy to rob as charged on the indictment. If there is any evidence before the Crown closes its case, however slight the chances, that the conspiracy alluded to by Chung was one and the same conspiracy referred to in the cautioned statements of D1, D4 and D5, then it would have been open to the Crown to rely on s. 51(2) of the Criminal Procedure Ordinance to seek a conviction of D2 and D3 of an alternative offence of conspiracy to steal. The Crown's dropping of D2 and D3 from this trial might then be said to have caused a justifiable sense of grievance to the other defendants.
48. I now turn to Miss Millar's submission that I do not have jurisdiction to deal with matters agreed by counsel or representations made by the Crown. That I think is totally contrary to the courts having control of proceedings before them which was the basis for the courts to stay proceedings, civil and criminal, for abuse of process. The judge's function in criminal trial with a jury is to be an umpire to ensure fairness at the trial according to law and the rules of procedure. If a representation or agreement was made by a party which has been acted on by the other party to his detriment, it appears to me to be an affront to justice in the normal circumstances to allow that representation or agreement to be withdrawn. The most crucial factor is fairness: fairness to the prosecution that persons who have committed crimes should be properly brought to justice, and fairness to the defendant that he is not prejudiced in his defence of his freedom and reputation. If the withdrawal of the representation or agreement would cause unfairness to the other party who has acted upon it, it is only proper that the court should intervene.
49. The court is expressly given power by section 65C to allow a party to withdraw from his formal admission. That does not mean that in case of other than formal admissions, the court would have no power to allow a party to withdraw, or conversely that the court would have no power to disallow a party to depart from something other than a formal admission.
50. In all the circumstances, I am not persuaded by Miss Millar that she should be allowed to renege from her former representations that the indictment would be amended to exclude the names of D2 and D3 and that the edited version of the cautioned statements would remain intact. To allow her to do so would cause prejudice to the remaining defendants, although it may not be open to D1 to say so as he was the instigator of the discharge of the jury.
51. Defence counsel have also argued that the Crown's proposed about-turn is indicative of the Crown's motive to obtain a tactical advantage against the remaining defendants. I have dismissed these arguments already. Throughout this trial, starting with the voir dires, Miss Millar has been handling the prosecution with exemplary fairness. She was extremely helpful in getting the police officers who gave or would give evidence in the voir dires to disclose instances where they had given evidence on cautioned statements in other court proceedings and to identify the cases in which they failed to adduce such cautioned statements. She expressly informed the court that she would not adduce evidence of the actual robbery or refer to the robbery in any manner so as not to prejudice the defendants. She agreed to have all the defendants who were not makers of the cautioned statements to be deleted from the cautioned statements before producing them to the jury, and in addition, she took upon herself to even delete all other names or nick-names of persons referred to in the cautioned statements allegedly involved in the conspiracy. I firmly believe that she changed her mind purely for complying with the said paragraph in Archbold, and I do not for one moment feel that she was operating from the motive of obtaining any unfair advantage over the remaining defendants.
Representation:
Miss Millar, Crown Counsel, for the Prosecution.
Mr Wong Po-wing, instructed by Messrs Yaddy Cheung & Co, assigned by DLA, for the 1st Defendant.
Mr Chan Siu-ming, instructed by Messrs Solomon Chong & Co, assigned by DLA, for the 2nd Defendant (until the 41st day of the hearing).
Mr Peter Wan, assigned by DLA, for the 3rd Defendant (until the 41st day of the hearing).
Mr Thomas Iu, instructed by Messrs Bernard Wong & Co, assigned by DLA, for the 4th Defendant.
Miss Esther Toh, instructed by Messrs Pang, Tang, Wan & Choi, assigned by DLA, for the 5th Defendant.
| (K. H. Woo) |
| Judge of the High Court |