Flexibility in fraud laws defended

PUBLISHED : Friday, 06 July, 2007, 12:00am
UPDATED : Friday, 06 July, 2007, 12:00am

Fraudsters were an infinitely creative group and the laws required to stop them needed to be able to take account of their varied crimes, the city's highest court heard yesterday.

Kevin Zervos, senior assistant director of public prosecutions, made the claim in the Court of Final Appeal on the second day of an appeal by jailed socialite Mo Yuk-ping. She has challenged the constitutional validity of her conviction for conspiracy to defraud possible investors in the listed firm Shanghai Land.

Mo received a two-year sentence for that crime after a trial in the Court of First Instance. She also received an additional 18-month sentence for perverting the course of justice.

Mr Zervos was responding yesterday to arguments from Mo's counsel, Clare Montgomery, QC, that the charge of conspiracy to defraud was so broad it could be defined as arbitrary and therefore in violation of the Basic Law and Bill of Rights.

He said fraud came in so many forms that flexibility was needed to combat the crime.

Mr Zervos also took issue with the claim that the law was flawed because there did not need to be any actual harm caused by the actions in question for a conspiracy to defraud to have occurred.

The offence was not limited to cases where there was economic loss, he said.

What was important was that there was an appreciation that injury could occur, Mr Zervos added. 'You have to have a realisation on the part of [the conspirator] ... that they are putting at risk some economic interest or right of another.'

It was here that Ms Montgomery's argument that the offence as it now stood could include numerous forms of legitimate business activity fell down, he said.

Mr Zervos also said the essential element was dishonesty on the part of the conspirators and not whether their actions caused financial loss to their victims.

'Conduct in the nature of practising a fraud is by definition dishonest,' he said.

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