CFA rules common law offence of conspiracy to defraud constitutional
2007-7-25
The Court of Final Appeal (CFA) has ruled the common law offence of conspiracy to defraud constitutional in unanimously dismissing the appeal by Shanghai Land Holdings Limited's former general manager Mo Yuk-ping against her conviction.
Mo, 45, was jailed for three and a half years in January 2006 after being convicted at the District Court of two counts of conspiracy to defraud and one of conspiracy to pervert the course of public justice.
Mo had earlier lodged an appeal to the Court of Appeal on the ground that the common law offence of conspiracy to defraud of which she was convicted was arbitrary in application and therefore unconstitutional.
The Court of Appeal then ruled that the offence at issue was formulated with sufficient precision to satisfy the requirements in the expressions "prescribed by law" and "according to law" in the Basic Law and the Bill of Rights Ordinance respectively.
Mo subsequently brought her case to the CFA. Her appeal was considered by Chief Justice Li, Mr Justice Bokhary, Mr Justice Chan, Mr Justice Ribeiro and Sir Anthony Mason between July 4 and 6 this year.
The judgment handed down by the CFA today (Wednesday) upheld the conviction of Mo, and commented the following:
"Although dishonesty in its ordinary sense does not lend itself to definition, it is not an arbitrary standard and a citizen should have little difficulty in appreciating what is dishonest judged by the ordinary standards of reasonable and honest people.
"A criminal offence must be so clearly defined in law that it is accessible and formulated with sufficient precision to enable the citizen to foresee, if need be with appropriate advice, whether his course of conduct is lawful or unlawful. It is, however , accepted that absolute certainty is unattainable and would entail excessive rigidity.
"Hence it is recognised that a prescription by law inevitably may involve some degree of vagueness in the prescription which may require clarification by the courts."
In dismissing Mo's appeal, the CFA ruled that there was nothing in the statement of the law of conspiracy to defraud contained in the reasons for judgment of the trial judge which was inconsistent with the basis on which the appellant was convicted.
Mo, 45, was jailed for three and a half years in January 2006 after being convicted at the District Court of two counts of conspiracy to defraud and one of conspiracy to pervert the course of public justice.
Mo had earlier lodged an appeal to the Court of Appeal on the ground that the common law offence of conspiracy to defraud of which she was convicted was arbitrary in application and therefore unconstitutional.
The Court of Appeal then ruled that the offence at issue was formulated with sufficient precision to satisfy the requirements in the expressions "prescribed by law" and "according to law" in the Basic Law and the Bill of Rights Ordinance respectively.
Mo subsequently brought her case to the CFA. Her appeal was considered by Chief Justice Li, Mr Justice Bokhary, Mr Justice Chan, Mr Justice Ribeiro and Sir Anthony Mason between July 4 and 6 this year.
The judgment handed down by the CFA today (Wednesday) upheld the conviction of Mo, and commented the following:
"Although dishonesty in its ordinary sense does not lend itself to definition, it is not an arbitrary standard and a citizen should have little difficulty in appreciating what is dishonest judged by the ordinary standards of reasonable and honest people.
"A criminal offence must be so clearly defined in law that it is accessible and formulated with sufficient precision to enable the citizen to foresee, if need be with appropriate advice, whether his course of conduct is lawful or unlawful. It is, however , accepted that absolute certainty is unattainable and would entail excessive rigidity.
"Hence it is recognised that a prescription by law inevitably may involve some degree of vagueness in the prescription which may require clarification by the courts."
In dismissing Mo's appeal, the CFA ruled that there was nothing in the statement of the law of conspiracy to defraud contained in the reasons for judgment of the trial judge which was inconsistent with the basis on which the appellant was convicted.