HKSAR v. MAK SIU WING

HCCD1/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR DISCHARGE NO.1 OF 2001

(RELATED CRIMINAL CASE NO. HCCC45 OF 2001)

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R U L I N G

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1. The applicant, Mak Siu Wing, was committed for trial without a preliminary enquiry for one count of trafficking in heroin. This is his application for discharge under section 16(1) of the Criminal Procedure Ordinance. The indictment was filed on 16 February 2001.

2. In an application under this section, the law applicable is succinctly stated in the cases of The Queen v. Tin Sau Kwong [1996] 1 HKCLR 9 and The Attorney General v. Yau Ka Ping [1977] HKLR 76. The court must approach the evidence against the applicant on the basis that all the admissible evidence will be accepted as true at the trial by the jury.

3. Mr Whitehouse, for the applicant, submits that the evidence relied upon by the prosecution as contained in the prosecution bundle is of such a tenuous nature that no prima facie case against the applicant can be made out at the trial. In summary, the evidence against the applicant can be summarized and grouped under four heads :

(a) The alleged association of the applicant with the first accused in this case. The applicant was seen driving a vehicle which he subsequently parked next to the vehicle where the drugs in question were later recovered. The applicant was seen going into a restaurant with the 1st accused and subsequently he was also seen driving away in his vehicle with the 1st accused. Some 40 minutes later, the applicant returned to the car park where he dropped off the 1st accused. The 1st accused was then intercepted by the police and the drugs in question were recovered from the boot of the vehicle.

(b) The police officers who were in plain clothes approached the applicant in his vehicle. The applicant drove away and he was intercepted after a chase.

(c) When arrested, the applicant said words to the effect : "Ah Sir, give me a chance" and in return, he offered to provide the police with the information regarding his 'big boss'.

(d) Subsequent investigation revealed that the vehicle which contained the dangerous drugs could be traced back to the 2nd accused, i.e. the applicant.

These are the evidence upon which the prosecution case against the applicant is founded.

4. Mr Whitehouse submits that the association of the applicant with the 1st accused proves nothing one way or another. It is nothing more than an innocent association without having any criminal connotation to it. The evidence of the applicant driving away when approached by the police officers, was again neutral evidence which does not have any nexus with the criminality of this case. On the issue of the alleged admission, Mr Whitehouse contends that such admission, taken at its highest, bears no relation to the drugs seized by the police nor does it tend to connect the applicant with the drugs seized. Whether evidence of the prior-ownership of the vehicle where the drugs were found is admissible will have to be considered by the trial judge if the case is to go to trial.

5. The submission by Mr Whitehouse overlooks the fact that there is no shortage of circumstantial evidence which is capable of going before a jury and if accepted, may establish the guilt of the applicant. The nature of the evidence is far from being tenuous as that suggested by counsel for the applicant.

6. For the reasons given, the application for discharge under section 16 is dismissed.