Conspiracy charges must stand up to proper scrutiny
'Apart from Angela Gong, each person against whom charges were laid in this case entered the trial court presumed innocent. They have left this court innocent and, let it be understood, without any cloud over his or her innocence.'
These are the closing words of the Court of Final Appeal's judgment in a recent case in which three solicitors and two accountants were alleged to have conspired to defraud the stock exchange. Before being completely exonerated, they suffered the trauma of conviction after a 95-day trial, denial of bail pending their appeals and served sentences of imprisonment of up to 33 months. How could these professionals have suffered such substantial and grave injustice? The court found that the co-conspirators rule was misused, rendering the trial on the conspiracy charges unfair. So, what happened?
The misuse of a charge of criminal conspiracy dates back to Tudor England. Prosecutors favour conspiracy charges because they are much easier to prove than the commission of a substantive offence. Under the co-conspirators rule, anything done or said by one alleged conspirator with a view to furthering the conspiracy can be used against any other member of the conspiracy.
The most basic rules of fairness demand that someone accused of being a conspirator must be told which of his statements the prosecution rely on to prove their case. Though the prosecution in this case stated that they would rely on the co-conspirators rule, despite discussion while evidence was being given, they never identified which documents should be admitted for this purpose. Instead, they pointed the judge to hundreds of documents and invited him to choose what he would rely on. Consequently, the defendants were denied the opportunity to deal with whatever the judge chose to deploy against them, an extraordinary state of affairs.
The prosecution also relied on the dubious evidence of Gong, who said there had been a 'common understanding' about the improper use of certain documentation. Yet, rather than give direct evidence of statements they had made, all she actually said was what inferences she had drawn about the state of mind of her alleged co-conspirators. There was no direct evidence to support the inference that any of them actually entered into the conspiracy.
The prosecution's case was fatally flawed from the outset. A defendant cannot possibly meet a case if the prosecution itself has not identified the evidence on which it relies. The fundamental requirements under the co-conspirators rule were not met. Five innocent professionals lived through the extraordinary stress of trial and imprisonment, their careers and reputations shattered. Adding insult to injury, despite the damage that these professionals suffered, they have no prospect of securing compensation. A successful defendant can only seek compensation if it can be established that a prosecution was brought maliciously; this is exceptionally difficult to establish.
Where does the responsibility lie for such disastrous and costly debacles? The role of the director of public prosecutions is to assess the merits of pursuing a prosecution before embarking on it. An allegation of conspiracy is nebulous by definition. All too often, the prosecution hopes that the sheer weight of documentary evidence will give their case flight, burying the detail in a foggy mass.
Inevitably, investigative organisations such as the Independent Commission Against Corruption and the police have tunnel vision about the merits of their cases. Hence the critical necessity for the public prosecutor's truly objective analysis. Recruiting the director of public prosecutions from the Department of Justice is more incestuous than objective. Until such time as this truth is recognised, if the department wants to emulate Icarus, it must fashion wings for its cases that will not melt before the Helios of the Court of Final Appeal.
Neville Sarony is a silk practising in both civil and criminal work in Hong Kong