OVERVIEW
Under section 159A of the Crimes Ordinance (Cap. 200), common-law conspiracy was replaced by statutory conspiracy, with the important exception of conspiracy to defraud, which remains a common-law offence.
Conspiracy to defraud is a charge often used by the prosecution, but a conspiracy can be aimed at any offence. Where two or more persons agree to commit a criminal act, there may be a conspiracy. Co-conspirators do not necessarily have to know all their fellow co-conspirators. The prosecution may sometimes allege either a conspiracy or a substantive offence, and procedural rules govern how a conspiracy charge should proceed through the courts.
All of our lawyers have defended people facing conspiracy charges in the different courts of Hong Kong and can advise those facing a conspiracy allegation.
LEGAL BASIS
the common law, preserved by section 159A(2) of the Crimes Ordinance (Cap. 200)
The relevant part of the current statutory provision states:
Common-law formulation
The offence encompasses an agreement by two or more persons, by dishonesty, to deprive a person of something which is his or to which he is, would be or might be entitled, or dishonestly to injure a proprietary right of his.
Section 159A(2) — Common-law offence preserved
The statutory conspiracy provisions do not affect the offence at common law of conspiracy to defraud.
Application
What the provision means in practice.
In plain English, at least two persons reached an agreement whose intended operation would dishonestly prejudice another's economic or proprietary interests, or expose them to a real risk of prejudice.
Each defendant must knowingly participate in the agreement, intend that its essential dishonest object be carried out, and be dishonest in relation to that object.
ELEMENTS OF THE OFFENCE
An agreement
At least two persons agreed on a course of conduct. The agreement may be express or inferred from communications, coordinated acts and the surrounding transactions.
Knowing participation
The defendant intentionally joined the agreement with knowledge of its essential nature. Mere association or assistance without agreement is insufficient.
Dishonesty
The agreed scheme and the defendant's participation were dishonest. The prosecution must establish dishonesty against each defendant.
Intended economic prejudice
The object was to prejudice another's economic or proprietary interests, or expose those interests to a risk of prejudice. Success or actual loss is unnecessary because the offence is complete upon agreement.
SCOPE OF THE OFFENCE
The agreement is the criminal act
Conspiracy to defraud is distinct from the substantive offence of fraud. Liability can arise even where a participant did not personally make a false representation and the planned scheme was never carried out.
The common-law offence also extends to a dishonest agreement intended to cause a person to act contrary to their public duty. The prosecution must prove the dishonest object and each defendant's knowing participation in the agreement.
- No completed fraud required: The offence is complete when the agreement is reached.
- No actual loss required: Intended economic prejudice or a risk to economic interests is sufficient.
- Individual proof: Knowledge and participation must be proved separately against every defendant.
Penalty
Maximum Penalty
Under section 159C(6) of the Crimes Ordinance, the maximum sentence is 14 years' imprisonment where the intended offence or offences are not limited to a lower maximum.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.