HKSAR v. LIU CHUN SING

CACC 208/2016

[2018] HKCA 596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 208 OF 2016

(ON APPEAL FROM HCCC 380 OF 2015)

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J U D G M E N T

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Hon M Poon J (giving the judgment of the Court):

1.  The applicant was convicted of one count of trafficking in a dangerous drug, namely 1,177.7 grammes of methamphetamine hydrochloride (“Ice”), contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, and was sentenced to 22 years’ imprisonment. His application for leave to appeal his conviction was refused on 5 June 2018.

2.  By a Notice of Motion dated 15 June 2018 the applicant now applies for a certificate under s 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that there are points of law of great and general importance involved in our decision.

3.  Both parties have consented to this application being determined on the papers.  We have received written submissions from the applicant and the respondent, and a reply to the respondent’s submissions from the applicant.

4.  The two questions sought to be certified are framed in the following terms:

“Question 1: Is it a misdirection in law to direct a jury that the jury may only draw an inference in favour of an accused if that inference ‘is the only reasonable inference to draw from the proved facts’?

Question 2: Is it a misdirection in law to direct a jury that the jury may draw an inference adverse to an accused if there is no other reasonable inference ‘as suggested by the defence’?”

The applicant’s submissions

5.  The applicant submitted that the direction on inference was defective as the jury was not directed as to how to approach inferences drawn in favour of the accused.  It was further submitted that Specimen Direction 21.3 did not have force of law and should be amended to add that should the jury find secondary facts which are true or may be true, they are entitled to draw an inference in favour of the accused.

6.  Further, it was submitted that the phrase used by the judge “whether there is another reasonable inference as suggested by the defence” wrongly placed the burden on the defence to expressly suggest an alternative inference failing which an inference adverse to the defence may be drawn.  The applicant submitted that the correct direction should be as follows:

“In this instance the question for you is whether it is the only reasonable inference as suggested by the prosecution or whether there is another inference which you consider is reasonably possible taking into account both the suggestions of the defence and also your common sense, experience and wisdom applied to the evidence as a whole.”

Respondent’s reply

7.  Mr Eddie Sean, Senior Assistant Director of Public Prosecutions, for the respondent, submitted that the trial judge did not direct the jury in the way as framed in Question 1, so there was no issue for certification.  It was also submitted the law relating to the drawing of inferences was well established and there is no need to certify Question 2.

Discussion

8.  The Judge dealt with inferences in the following way:

“. . . if you find certain facts proved, you are entitled to infer the existence of other facts, but you may only do so if the inference is the only reasonable inference to draw from the proved facts. So if, from a set of facts which you find proved, there is a reasonable inference to draw against the defendant as well as one in his favour, then you must not draw the adverse inference . . .” (AB p 22F - I)

9.  That is in line with 21.3 of the Specimen Directions, which is a recitation of the legal principles expounded in Kwan Ping Bong v R [1979] HKLR 5, approved and reiterated in Winnie Lo v HKSAR (2012) HKCFAR 537, in relation to the drawing of an inference adverse to the accused:

“Firstly, it must be grounded on clear findings of primary facts. Secondly, the inference must be a logical consequence of those facts. Thirdly, beyond being logical (since more than one logical inference might logically be drawn), in a criminal case the inference must be irresistible, that is, it must be the only inference that can reasonably be drawn on the basis of those facts.”

10.  The law is clear in that if there should be two competing inferences to be drawn from a set of proved facts: one in favour of and one adverse to the accused, the inference adverse to the accused must not be drawn because that would not be the only reasonable inference, as pointed out by the judge:

“The question for you is whether it is the only reasonable inference as suggested by the prosecution or whether there is another reasonable inference as suggested by the defence. All this is really a reflection, members of the jury, of the requirement that they prosecution prove its case against the defendant beyond reasonable doubt.” (AB p 23D - G).

11.  The above passage never placed any burden on the defendant to suggest any other reasonable inference.

Conclusion

12.  The legal principles in this area of law are well settled.  The two questions cannot be said to raise a point of law of general importance.  We decline to certify the questions posed.