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Re-trial ordered for appellants previously convicted of conspiracy to defraud the Hong Kong Stock Exchange

Related Member(s):
Clare Montgomery QC, Tim Owen QC
Related Practice Area(s):
Fraud, Financial and Business Crime

The Hong Kong Court of Appeal has today handed down a judgment in HKSAR v Keen and Ors [2019] HKCFA 32 allowing the appeal of the appellants who were charged and convicted on two counts of conspiracy to defraud.

The appellants, Chen Keen (A1), Hao May (A2) and Yee Wenjye (A3), were all sentenced to over seven years imprisonment for conspiracy to defraud the Stock Exchange of Hong Kong (SEHK) and conspiracy to defraud Natural Dairy, a company listed on the SEHK. The first appellant, Keen, was also convicted on a further count of money laundering in respect of his dealing with the alleged proceeds of such conspiracies to defraud.

In the trial, the judge instructed the jury that in order to convict the appellants of conspiracy to defraud, the jury must be sure that in respect of each count, that the appellants had agreed to use dishonest means to bring about the intended results. The jury was reminded which dishonest means referred to in Particulars (a)–(e) concerned each of the appellants – (a)-(c) only concerned A1 and A2 whilst (d)-(e) concerned all appellants. It was also stated that the prosecution did not need to prove all of the particulars but it was sufficient that one or more of these are made out, and the jury is sure that at least two of the appellants knowingly and intentionally made these representations or concealed the truth.

In the appeal, it was stated that particulars included different dishonest means with different alleged co-conspirators and therefore included two different conspiracies. In addition, as the jury was directed that in order to convict all the appellants, it would be sufficient for ‘at least’ two of the accused to be part of a conspiracy, it was stated that there is a risk that the jury may have convicted without actually agreeing on the particulars of the dishonest means, and which of the appellants were part of the conspiracy. For these reasons, the convictions against all of the appellants were unsafe.

The appellants’ appeal was unanimously allowed and the convictions of all appeals quashed. A re-trial was ordered, with the prosecution given the choice to amend the present indictment or issue a new one.

Clare Montgomery QC acted for the first appellant, Jack Chen and was instructed by Boase, Cohen & Collins. Tim Owen QC acted for the third appellant Eric Yee and was instructed by Hobson & Ma.

Please find press release here: [2019] HKCFA 32