HKSAR v Lu Yanbo

Judge WK Kwok
3, 7 August 2020

Facts

L and C were the respective defendants in two cases concerning conspiracy to transfer forged identity cards. L originally faced three charges. In the original third charge, it was alleged that L was part of a conspiracy to transfer three forged identity cards to other persons without naming those persons. The prosecution applied to amend the charge sheet by splitting the original third charge into three charges, so that each of the three charges would only focus on dealing with one of the forged identity cards. C was named as a conspirator in the original third charge, and the proposed amended third, fourth and fifth charges. Z and W were allegedly the persons to whom two of the forged identity cards were to be transferred mentioned in the proposed amended third and fourth charges. L opposed the amendment application in respect of the proposed amended third and fourth charges on the ground that the prosecution did not have any or sufficient evidence to prove that L was acquainted with or was aware of the existence of Z and W, such that there would not be sufficient prima facie evidence to prove that L was involved in the unlawful agreements referred to in the proposed amendments. L relied on s.159A(1) and s.159A(2) of the Crimes Ordinance (Cap.200) (the CO) in support. The prosecution also applied to consolidate L’s and C’s cases.

Held, allowing the amendment application and the consolidation application, that:

  1. There was no need to consider whether the prosecution was able to adduce prima facie evidence to prove the proposed amended third and fourth charges. When there was an application to put in an amended or additional charge, the court only needed to make sure that the drafting of the charge was compliant with the requirements of s.2 of the Indictment Rules (Cap.221C, Sub.Leg.) (the Rules) and that the charge was able to give the defendant clear notice of the allegation made against him.
  2. Further, s.2(2) of the Rules provides that each count may only deal with one offence. As the original third charge dealt with three forged cards at the same time, it might give rise to a situation where three offences were charged in one count. It was therefore not only reasonable and fair for the prosecution to make the application to split the charge into three charges, the prosecution was also arguably obliged to do so. Moreover, L’s interests would not thereby be prejudiced.
  3. Even engaging in the analysis of L’s submissions, applying the relevant principles on the offence of conspiracy, if the prosecution was unable to prove that L was acquainted with Z and/or W, or had talked to or met the two of them or any one of them, it did not necessarily mean that the prosecution would not be able to prove that L had joined the same conspiracy to transfer forged identity cards which Z and/or W had joined. The prosecution only needed to prove L knew that there were other parties to the conspiracy which he joined, and that the other parties were or included Z and/or W. Moreover, the evidence available from the prosecution not only constituted a prima facie case to prove that L did take part in the conspiracy referred to in the proposed amendments but might also be sufficient to secure a conviction against L.
  4. Section 159A(2) of the CO was not applicable to the present case. It applied to strict or absolute liability offences where a defendant committing the actus reus of the offence could be found guilty even though he had no knowledge of any particular fact or circumstance necessary for the commission of the offence at the time such actus reus was committed. The effect of the subsection was that for a charge of conspiracy to commit such a strict or absolute liability offence, the defendant must be shown to know at the time the unlawful agreement was made that the particular fact or circumstance necessary was in existence or was to come into existence. Transferring forged identity cards was neither a strict liability nor an absolute liability offence (HKSAR v Yung Lai Lai [2012] 5 HKLRD 670 considered).
  5. As for the consolidation application, the two cases involved the same set of facts and same evidence from the prosecution. C had never raised any objection and, following the granting of the amendment application, L informed the Court that it no longer objected to the consolidation application. In the circumstances, consolidation of the two cases for trial obviously was consistent with the requirement under s.7 of the Rules.

Applications

These were applications brought by the prosecution for amendments to a charge sheet and for the consolidation of two criminal cases concerning conspiracy to transfer forged identity cards.

Jurisdictions