Charge against jailed socialite too broad, lawyer tells top court

PUBLISHED : Thursday, 05 July, 2007, 12:00am
UPDATED : Thursday, 05 July, 2007, 12:00am

Disgraced socialite Mo Yuk-ping is contesting her jailing on a charge of conspiracy to defraud by attacking the nature of the charge itself.

On the first day of a scheduled three-day hearing, the Court of Final Appeal was told by Clare Montgomery QC that the offence of conspiracy to defraud, for which Mo is serving a two-year sentence, was so broad and could catch so many otherwise legitimate practices that it should be ruled unconstitutional.

Mo was found guilty in January last year of two counts of conspiracy to defraud possible investors.

However, the Court of Appeal granted leave for Mo to take her case to the city's highest court because of the public importance involved in determining whether or not the charge of conspiracy to defraud was itself constitutional.

Article 39 of the Basic Law states that the rights and freedoms of people in Hong Kong 'shall not be restricted unless as prescribed by law', while the Bill of Rights Ordinance says that no one shall be deprived of their liberty except when it is done 'according to the law'.

In written submissions, Ms Montgomery argued that the offence as it currently stood in Hong Kong was 'riddled with defects and anomalies' and that there was no need for such a broad-brush approach in the city.

The fact the law defined a conspiracy as any case where two or more people got together to deprive another of something that was his - or to convince them to act contrary to their duties - by dishonesty meant it could be difficult for people engaged in business to distinguish the line between legitimate and illegal activities.

Ms Montgomery also argued that this kind of ambiguity was contrary to the rule that people should be able to know they are committing a crime before they embark on it.

This gave the charge of conspiracy to defraud an element of arbitrariness that ran contrary to Article 28 of the Basic Law, which states that people shall not be subject to arbitrary arrest.

The hearing continues today before Chief Justice Andrew Li Kwok-nang and four other judges.