CHAN PUN CHUNG AND ANOTHER v. HKSAR

FAMC No. 3 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 364 OF 1999)

_____________________

_________________________

DETERMINATION

_________________________

Mr Justice Bokhary PJ:

1. These two applicants seek leave to appeal to the Court of Final Appeal against their conviction on a conspiracy charge. The conviction was by a Magistrate. It was affirmed by the Court of Appeal (to which the matter was referred under s.118(1)(d) of the Magistrates Ordinance, Cap. 227). Looking at the charge in question, it will be seen that the statement of offence reads "Conspiracy to obtain a pecuniary advantage by deception, contrary to Section 18(1) of the Theft Ordinance, Cap. 210, and Section 159A of the Crimes Ordinance, Cap. 200". And it will be seen that the charge period is stated to be between 1 December 1994 and 28 March 1995. At that time the offence of conspiracy was a purely common law offence.

2. On 2 August 1996 Part XIIA of the Crimes Ordinance, (which part consists of ss. 159A-159L) came into operation. As from that date, and by virtue of s.159E(1) and (2), the offence of conspiracy at common law was abolished save for one exception irrelevant to the present case. That exception is the common law offence of conspiracy to defraud, which is preserved.

3. The new statutory offence of conspiracy is defined by s.159A(1) which provides that:

4. Certain transitional provisions accompanied these reforms of the law of conspiracy. Section 159E(7) provides that the abolition of the offence of conspiracy at common law shall not affect:

None of these transitional provisions affect the applicants since the proceedings against them were not commenced until after Part XIIA had come into operation.

5. There is currently a proposal to add a further transitional provision. This proposal is contained in clause 14 of the Statute Law (Miscellaneous Provisions) Bill 1999. If passed, it would add to s.159E(7) an item (c) which would read:

That would certainly cover the applicants' position. And they rely on the fact that it has not yet been enacted.

6. The Court of Appeal rejected the applicants' argument that although their conduct "has not been made lawful" by the Part XIIA, it "is nevertheless unenforceable because it cannot be prosecuted". And the Court of Appeal then went on to say this:

7. As far as the proposal for a further transitional provision is concerned, the Court of Appeal said that it rejected the applicants' argument that such proposal "shows that it is acknowledged that there is a lacuna in the law". And the Court of Appeal went on to say this:

8. Turning to the transitional provision contained in s.159E(7)(b), the Court of Appeal said this:

9. On that view, the only remaining difficulty was that charging the applicants with having offended against s.159A was plainly wrong since the section did not exist at the time of the conspiracy. To remove this difficulty, the Court of Appeal directed that the charge be amended. The amendment directed was that the words "and section 159A of the Crimes Ordinance, Cap. 200" be deleted and replaced by the words "and to the common law". On that basis the Court of Appeal affirmed the applicants' convictions.

10. The applicants contend that no such amendment is permissible. This is because, the applicants contend, no charge such as the amended charge could have been laid against them.

11. In applying for leave to appeal to the Court of Final Appeal, the applicants say that a question of great and general importance is involved. The question as set out in their written application is as follows:

12. Now what sort of abolition is involved in this case? There is no doubt that what the applicants did amounted to a conspiracy to obtain a pecuniary advantage by deception. It amounted to such a conspiracy when they did it before 2 August 1996. And if they had done it after that date, it would still have amounted to such a conspiracy. That is the context of the question whether they are immune from being charged after that date with the conspiracy which they entered into before that date.

13. The point contained in the question raised by the applicants is one of great and general importance. Given the context to which we have just referred, the applicants may ultimately fail. But we consider their point to be at least reasonably arguable. It is not easy to attribute to the Legislature an intention to bring about the state of affairs for which the applicants contend. But these facts remain: there are transitional provisions; but they do not cater for the present prosecution; and there is a proposal for a further transitional provision which would do so; but it has not yet been passed. All things considered, the point merits consideration in an appeal. We certify the point and grant leave to appeal so that it may be argued before the Court of Final Appeal.