On 16 September 2025, the Independent Commission Against Corruption (the “ICAC”) issued a press release relating to the charging of a director of a private company, with one count of conspiracy to pervert the course of public justice, contrary to the Common Law and section 159A of the Crimes Ordinance. Understanding the interplay between the common law offence of perversion of justice and the statutory charge of conspiracy under section 159A of the Crimes Ordinance (Cap. 200) is critical for any business facing a dispute that could attract ICAC scrutiny.
In this article, we aim to breakdown the key legal requirements for these offences. Whether you are facing an ICAC raid, a whistleblower compliant, or internal compliance challenges, proactive legal counsel can make all the difference.
Perversion of the Course of Public Justice in Hong Kong
The common law offence of doing an act tending and intended to pervert the course of public justice remains a cornerstone of Hong Kong’s criminal framework. As clarified by the Court of Final Appeal (CFA) in the landmark HKSAR v Lew Mon Hung decision, this offence targets actions that undermine the administration of justice, even before formal proceedings commence.
Core Elements
To convict under this offence, the prosecution must establish two indispensable elements beyond reasonable doubt: (1) Actus Reus – the act; and (2) Mens Rea: the intention.
- Actus Reus – The Act: The defendant must perform an act with a tendency to pervert the course of public justice.
- “Tendency” is key: The act does not need to be successful. It is enough that it had a tendencyto impair or prevent the exercise of a court’s or judicial authority’s capacity to do justice. The offence is complete upon the doing of the act with this tendency.
- Connection to Curial Proceedings: The tendency must be to bring about a miscarriage of justice in curial (court) proceedings. However, these court proceedings do not need to have already begun.The acts can be committed when proceedings are “imminent, probable or even possible”.
- Interfering with Investigations:
- Investigations by law enforcement agencies (like the ICAC or police) are not, by themselves, part of “the course of justice”. Therefore, merely hindering an investigation is not enough to constitute the offence. BUT, if the act of interfering with an investigation carries a tendency and is intended to pervert the course of justice in relation to future court proceedings that may result from that investigation, it is capable of founding the offence.
How is “Tendency” Proven?
- It is a question of fact in each case.
- The court looks at the nature of the act and the context in which it was done.f
- The position and relationship of the person approached is critical (as established in Lew Mon Hung). The prosecution does not need to prove that the person approached had the formal legal power to do what the accused asked (e.g., stop an investigation). It is enough that they were in a position of influence where they could practicallyinterfere, affect, delay, or frustrate the investigation or its outcome.
2. Mens Rea – the intention:
This is the subjective element. The prosecution must prove that the defendant intended to pervert the course of justice.
- This means the defendant must have acted with the specific purpose or aim of frustrating, deflecting, or interfering with the course of justice.
- It is not necessary to prove that the defendant knew the precise legal definition of “the course of justice,” but that they intended to interfere with the ordinary and proper administration of the law.
Understanding the Legal Requirements of Conspiracy
To secure a conviction for statutory conspiracy, the prosecution must prove the following elements beyond a reasonable doubt:
- An Agreement: There must be an agreement between two or more persons. The agreement itself is the criminal act (actus reus); it does not need to be carried out.
- The agreement can be express or implied.
- A person can join a conspiracy at various stages, provided it is an ongoing agreement.
- An uncommunicated intention to agree is not sufficient (R v Scott).
- Course of Conduct: The agreement must be that “a course of conduct shall be pursued.”
- Intention to Carry Out the Agreement: The parties must intend that the agreement be carried out in accordance with their intentions.
- Commission of an Offence: The agreed-upon course of conduct must be such that if carried out as the parties intended, it would:
- (a) “necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement”; or
- (b) would do so, but for the existence of facts which make the commission of the offence impossible.
- Knowledge: This is a crucial qualifier from subsection (2). Even if the substantive offence itself does not require knowledge of a particular fact (i.e., it’s a strict liability offence), a person is not guilty of conspiracy to commit that offence unless:
- They and at least one other party to the agreement intend or know that the necessary fact or circumstance will exist at the time the offence is to be committed.
- “Offence” is Defined: The offence(s) the parties conspire to commit must be an “offence triable in Hong Kong.”
Certain Exceptions (s159B of the Crimes Ordinance)
The Crime Ordinance provides specific scenarios where a person will not be guilty of conspiracy under s159A of the Crimes Ordinance:
- The Intended Victim (s159B(1) of the Crimes Ordinance): A person cannot be guilty of conspiring to commit an offence of which they are the intended victim.
- Agreements with Certain Categories of Persons (s159B(2) of the Crimes Ordinance): A person is not guilty if the only other person(s) they agree with fall into one of the following categories:
- (a) Their spouse. This is based on the old common law concept that a husband and wife are one person. However, this exemption does not apply if any other person (e.g., a third party not married to them) is also part of the agreement.
- (b) A person under the age of criminal responsibility. In Hong Kong, a child under 7 is conclusively presumed to be incapable of committing a crime (Juvenile Offenders Ordinance, Cap 226, s.3).
- (c) An intended victim of the offence.
Penalties
The penalty for conspiracy is generally linked to the penalty for the substantive offence(s) agreed upon. For example, conspiring to commit an offence punishable by life imprisonment can itself lead to a life sentence. Conspiracy to defraud at common law carries a maximum sentence of 14 years imprisonment.
FAQs: Perversion of Justice, Conspiracy, and the ICAC
Q1: Can I be charged for perversion of justice for lying to the ICAC?
Yes, if the lie is intended to mislead the investigation and has the tendency to derail any potential future legal proceedings that could arise from it, it can form the basis of a charge.
Q2: If my co-conspirator is acquitted, am I automatically acquitted?
No. Under s159E(4) & s159E(5) of the Crimes Ordinance, the old common law rule is abolished. You can be convicted even if your alleged co-conspirator is acquitted in a separate trial.
Refer to the link below for the ICAC’s press release: https://www.icac.org.hk/en/p/press/index_id_2165.html.
How YTL LLP can help?
In an era of complex regulatory landscape, and evolving case law, businesses cannot afford complacency. From pre-emptive compliance audits to robust defense strategies in perversion of justice or conspiracy proceedings, YTL LLP’s cross-border expertise positions us to protect your interests. Contact us today for confidential advice.
Alfred Leung, Partner
alfredleung@hkytl.com; +852 3468 7202
This article is introductory in nature. Its content is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. You should always obtain legal advice based on your specific circumstances before taking any action relating to matters covered by this article. Some information may have been obtained from external sources, and we cannot guarantee the accuracy or currency of any such information.
