By Richard Thomas
Court of Final Appeal
Rape – Directions on Separate Consideration of Counts
HKSAR v C.T.
 HKCFA 26 FACC No. 25 of 2018 on appeal from CACC No. 221 of 2016
The appellant was charged with five counts of raping a girl, X, contrary to section 118(1) of the Crimes Ordinance (Cap. 200). The prosecution’s case was that the appellant raped X on five occasions in a rental premise. In relation to the fifth count, his defence was one of alibi. The trial judge observed in her directions to the jury that this was a word-against-word case where the evidence basically consisted of the oral evidence of X against that of the appellant. The appellant was convicted on counts 1 to 4 and acquitted of count 5.
In dismissing his appeal, the Court of Appeal rejected the appellant’s submissions that his acquittal on count 5 rendered his conviction on counts 1 to 4 unsafe and unsatisfactory.
The first issue before the Court of Final Appeal was whether the standard direction to the jury – that they should consider each count separately, and may accept part of a witness’ evidence and not the other parts of the same witness’s evidence (the ‘separate offences direction’) – should be qualified in cases of sexual offences where the only direct evidence of the commission of the offences came from the complainant.
The appellant’s contention was firstly that the trial judge should have indicated to the jury that any reasonable doubt they form concerning one aspect of the complainant's evidence must also be taken into account in assessing the overall credibility of the complainant and hence in relation to other counts (a ‘Markuleski direction’) and secondly that the trial judge should have given a more detailed direction to the jury that they may consider it very difficult to find the appellant guilty on counts 1 to 4 if they find him not guilty on count 5.
The Court held that a Markuleski direction was not always necessary or desirable as a counterweight to the separate offences direction. The direction should only be given when necessary, and only where a risk of unfairness to the accused had truly arisen. The overarching consideration was the conduct of a fair trial.
In the appellant’s case, the trial judge had already given a Markuleski direction during trial with particular reference to count 5, which trial counsel did not request to expand in the detailed terms suggested before the Court of Final Appeal. The Court therefore rejected the appellant’s submission that he was denied a fair trial.
Inconsistent verdicts on uncorroborated evidence
The second issue concerned the proper approach of an appellate court towards inconsistent verdicts where, although not logically inconsistent, the verdicts were based on the uncorroborated evidence of the complainant. The Court reaffirmed the previous position in Hong Kong that in order to successfully appeal on the grounds of “factual inconsistency”, the appellant had to show that no reasonable jury which had applied their minds properly to the facts of the case could have returned the verdict in question.
On the facts of this case, the Court held the absence of corroborated evidence could not of itself be decisive; there had been no undue delay in making the complaint; and that there had been an apparent difference in the quality of X’s evidence between counts 1 to 4 and count 5, as count 5 was contradicted by the alibi. The different verdicts were not inconsistent such as to necessitate intervention on appeal.
Conspiracy to Defraud
Chen Keen (alias Jack Chen), Hao May (formerly known as Wang May Yan, alias May Wang), Yee Wenjye (also known as Yu Wenjie, alias Eric Yee)
 HKCFA 32, FACC Nos. 26, 27 & 28 of 2018 on appeal from CACC No.172 of 2016
The appellants were charged and convicted on two counts of conspiracy to defraud: a conspiracy to defraud the Stock Exchange of Hong Kong and a conspiracy to defraud China Jin Hui Mining Co Ltd (later known as Natural Dairy (NZ) Ltd), a company listed on the SEHK with the Stock Code No. 462. The first appellant was also convicted on a further count of money laundering in respect of his dealing with the alleged proceeds of such conspiracies to defraud.
The facts are not straightforward. The first appellant was a director of ‘462’ while the second appellant was the ultimate beneficial owner of the companies that entered into an agreement to sell to 462 some farms in New Zealand. This was ‘the acquisition’. Given the size of the Acquisition, 462 was required under the Listing Rules to make a public announcement and publish a circular approved by the SEHK. In both of these documents, the first and second appellants claimed that they (including the companies controlled by them) were independent from each other and not connected to the acquisition. The third appellant was brought in to handle the accounts of the farms.
The prosecution alleged they conspired together to cause SEHK to allow the publication of the announcement and circular and to cause 462 to approve the acquisition and its financing measures using dishonest means (‘the intended results’).
The particulars of the indictment alleged the intended result were achieved by:
- The first and second appellants had dishonestly made false representations in relation to or concealed the connections between themselves and their interests otherwise in the Acquisition (“Particulars (a)-(c)”).
- All appellants had dishonestly made false representations in relation to or concealed the true financial position of the farms (“Particulars (d)-(e)”).
The trial judge instructed the jury that, in order to convict the appellants of conspiracy to defraud, the jury must be sure that in respect of each count, that the appellants had agreed to use dishonest means to bring about the intended results. Of particular relevance, the jury was also reminded that:
- the dishonest means referred to in Particulars (a)-(c) concerned only the first and second appellants, while Particulars (d)-(e) covered all appellants.
- in relation to Particulars (a)-(c), the trial judge directed the jury that it is sufficient if they were satisfied that A1 and A2 were “working together” in the acquisition when deciding whether they had made misrepresentations or concealments regarding their connection and interest in the Acquisition.
- the prosecution do not need to prove all of these particulars, but it is sufficient that one or more of these are made out, and the jury is sure that at least two of the appellants knowingly and intentionally made these representations or concealed the truth.
The appellants were convicted at trial and the Court of Appeal dismissed their appeals.
Issues before the Court of Final Appeal
The appellants argued that, since Particulars (a)-(c) and Particulars (d)-(e) involved different dishonest means with different alleged co-conspirators, they are therefore two different conspiracies. It is wrong for one count of conspiracy to defraud to contain more than one conspiracy and so the counts in the present case are improper in that they respectively include both Particulars (a)-(c) and Particulars (d)-(e). This was the ‘duplicity argument’.
The appellants also argued that it was wrong for the trial judge to direct the jury using the “working together” formulation instead of properly defining legal concepts such as “connected persons” or “connected transactions” to the jury. This was the ‘Misdirection Argument’.
The Duplicity Argument
An offence of conspiracy to defraud is the making of an agreement in which the co-conspirators agreed to use dishonest means intending to achieve the object of either injuring or imperiling the victim’s economic interests, or deflecting the victim from performing his duty. Hence, to find the co-conspirators guilty, the prosecution’s job is complete if he could prove that there is such an agreement to use some unspecified dishonest means to achieve the fraudulent object.
To prove agreement, the prosecution need to spell out facts and matters which they rely on in order to inform the accused of the case they have to meet. This is done through providing particulars in an indictment. That said, not every fact specified in an indictment would necessarily have to be proven by the prosecution in order to secure a conviction (the example was given of overt acts only going to the background context). However, where the prosecution rely on the particulars as the very dishonest means agreed upon, these particulars, being an essential element of the offence of conspiracy to defraud, would have to be proven by the prosecution.
It is necessary therefore to determine whether the particulars in the present case are simply overt acts, or were they the very dishonest means agreed upon. Having regard to the wording of the indictment, the written and oral directions of the trial judge, and how counsel had conducted the trial, the Court found that Particulars (a) to (e) were relied upon as the agreed dishonest means rather than merely overt acts. As such, these particulars must be proven.
Having established that these particulars are all agreed dishonest means which have to be proven, and given how Particulars (a)-(c) and Particulars (d)-(e) encapsulate rather different dishonest means involving different co-conspirators, the counts containing both of these sets of particulars would thus essentially include two conspiracies each. Furthermore, as mentioned above, the jury was directed that it is sufficient that “at least” two of the accused were part of a conspiracy. Therefore, there is a risk that the jurors may have convicted the appellants without actually agreeing upon whether the dishonest means of the conspiracy was the one under Particulars (a)-(c) or that under Particulars (d)-(e), and who among the appellants were part of this conspiracy. There was therefore a risk that the jury had not arrived at a valid verdict against the same appellants based on an agreement to employ the same dishonest means, which meant that the prosecution may not have proven their alleged criminal agreement. The convictions against all of the appellants were unsafe.
The Misdirection Argument
Given the conclusion, on the misdirection argument, the Court found it unnecessary and undesirable to deal with the issues arising from the Misdirection Argument.
The appeals were unanimously allowed, and the convictions of the appellants were quashed. A re-trial was ordered, and the prosecution was given the choice to amend the present indictment or to issue a new one.
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