SECRETARY FOR JUSTICE v. WONG WING-YI

CACC 118/2022

[2023] HKCA 309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 118 OF 2022

(ON APPEAL FROM HCCC NO 196 OF 2021)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.  This is an appeal by the Secretary for Justice (the appellant) pursuant to s.81E of the Criminal Procedure Ordinance, Cap 221 (the Ordinance), against the discharge of the respondent under s.16 of the Ordinance after a successful application had been made before Campbell-Moffat J (the Judge) that there was insufficient evidence disclosed in the documents relating to a charge of trafficking in a dangerous drug to establish a prima facie case against her.

2.  By an indictment dated 11 October 2021, it was alleged that Chan Ki Fung (whose trial designation was D1) and the respondent (whose trial designation was D2), together with other unknown persons, unlawfully trafficked in a dangerous drug, namely 2.79 kilogrammes of a mixture containing 2.32 kilogrammes of heroin hydrochloride, contrary to s.4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134[1].

3.  On 21 July 2022, D2 was discharged under s.16(1) of the Ordinance by the Judge, and the case proceeded to trial against D1 alone. At the conclusion of his trial on 1 August 2022, the jury could not reach a verdict on an amended indictment against him, and a retrial was ordered.

4.  On 10 August 2022, the appellant filed a notice of appeal against the order for discharge made in favour of D2.

5.  At the conclusion of this hearing, we allowed the appeal, quashed the acquittal and ordered that D2 be tried on the original indictment for trafficking in a dangerous drug together with D1. We said that we would give our reasons for our decision in due course, and this we now do.

The legal framework

6.  Section 16 of the Ordinance so far as is material provides:

“16. Discharge of accused after committal without a hearing

(1) Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap. 227) …, the accused may at any time -

…

(b) after the filing of the indictment and prior to his arraignment thereon,

apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap. 227) … as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.

…

(3) The judge may after perusal of the documents and after hearing any representations which the accused and the Secretary for Justice may wish to make, direct that the accused shall not be arraigned on the charge, and direct that he be discharged.

(4) Subject to section 81E(3), a discharge under this section shall be deemed to be an acquittal.”

7.  An application under s.16 application is governed by a specific set of rules as set out in the Criminal Procedure (Application under Section 16) Rules, Cap 221G (the Rules). The Rules establish a formal regime to deal with such an application because it is a critical step in the determination of an indictable offence against an accused who is committed for trial in the High Court.

8.  Rule 4 provides that a notice of application should be made in the form prescribed in the Schedule or “as near thereto as circumstances permit”. It must be signed by the applicant, set out the grounds of the application particularising in full why it is alleged no prima facie case is disclosed, and give an address at which notices relating to the application may be served on the applicant. As required by the prescribed form, the notice must be served on the Registrar of the High Court and the Secretary for Justice, although it can be served on the Registrar only. The notice must specify the date for the hearing of the application, which under Rule 3 is to be determined by the Registrar in consultation with the applicant. By Rule 5, subject to any contrary direction from the Registrar, the notice must be given to the Secretary for Justice no less than 14 days before the date of the hearing. By Rule 7, the judge, on hearing the application, is required to deliver his or her decision and the reasons therefor either at the close of the argument or at a later date. Rule 9 requires that the Registrar should keep a register of all cases in which he has received a notice of application, which is to be open for public inspection as determined by him.

9.  The judge can under certain conditions waive non-compliance with the Rules which have not been “wilfully” breached. Rule 12 provides:

“(1) Non-compliance by an applicant with these rules, or with any other rule of practice for the time being in force, shall not prevent the further prosecution of his application if a judge considers that such non-compliance was not wilful, and that the same may be waived or remedied by amendment or otherwise.

(2) The judge may, in such manner as he thinks fit, direct the applicant to remedy such non-compliance; and thereupon the application shall proceed.

(3) The Registrar shall forthwith notify the applicant of any directions given by a judge under this rule, if the applicant or his legal representative was not present when such directions were given.”

10.  We have briefly set out the requirements of the Rules because part of the appellant’s complaint is that the Judge invited D2 to make the application in non-compliance with them.

11.  The Secretary for Justice has a right of appeal against an order of discharge under s.16 and the relevant provisions are set out in s.81E of the Ordinance as follows:

“81E. Appeal to Court of Appeal following discharge

(1) Where any person has been discharged under section 16 …, the Secretary for Justice may appeal to the Court of Appeal against that person’s discharge.

(2) The appeal may be –

(a) on any ground which involves a question of law;

(b) on the ground that the documents and evidence before the court were sufficient to establish a prima facie case against the accused for the offence set out in the charge or for any other offence for which he might be convicted upon that charge.

(3) The Court of Appeal may, if it allows an appeal under this section, quash the acquittal of the accused and order him to be tried.

(4) The Court of Appeal may, in ordering a trial, make such orders as appear to it to be necessary for the custody, or admission to bail, of the person ordered to be tried.”

The legal principles

12.  In a s.16 application, the court is required to examine the committal papers and additional evidence that the Secretary for Justice has notified the court he will rely on to determine whether the evidence is sufficient to disclose a prima facie case against the accused.

13.  The legal principles relevant to the proper approach to an application for discharge pursuant to s.16 have been summarised by this Court in Secretary for Justice v Tang Sau Ling [2]:

“The appropriate approach to section 16 applications may usefully be gleaned from the judgment of Silke VP in Attorney General v Phung Van Toan [3], adopting [4] for the purpose of section 16, the test applied by Kempster JA in Attorney General v Li Fook Shiu Ronald [5] in relation to section 22 of the Complex Commercial Crimes Ordinance, Cap 394 which empowers an accused at any time before the empanelment of the jury to apply to the judge for his discharge on the ground that the evidence disclosed is insufficient to establish a prima facie case against him for the offence with which he is charged. Kempster JA said, of a judge hearing a section 22 application that :

‘In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are “matters generally speaking within the province of the jury” in the language of Galbraith [6]. Both can critically be affected by later evidence or a lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, “must” conclude at that moment, but what a jury “could, may or might” properly conclude in the future.’

Importantly for present purposes, Silke VP added this :

‘At the time of this type of application no word of oral evidence has yet been heard. A court faced with such an application is not enjoined to consider the quality of the evidence. To do so would be to usurp the function of the jury.’[7] ”

14.  The test to be applied for a s.16 application is the same as when a judge determines whether there is a case to answer at the close of the prosecution case as laid out in R v Galbraith [8] and Attorney General v Li Fook Shiu Ronald [9], except his decision is based entirely on the papers and without any oral evidence being or having been heard. Consequently, the judge is not enjoined to assess the quality of the evidence for that is the function of the jury. The judge will assume that the admissible evidence as disclosed by the papers will be accepted by a jury and consider what findings of fact a properly directed jury could, may or might make from that evidence. See also HKSAR v Yan Pan Yue [10]; R v Tin Sau Kwong [11]. The principles and proper application of a no case to answer test have been recently and comprehensively addressed by this Court in Re Secretary for Justice’s Reference (Nos 1-3/2021) [12].

The prosecution’s evidence

15.  It was the prosecution case that D2 was party to a joint enterprise with D1 to unlawfully traffic in drugs contained in a parcel addressed to D2, which was collected by D1 in a controlled delivery operation mounted by officers of the Customs and Excise Department on 7 August 2020.

16.  On 29 June 2020, at the Customs Cargo Examination Compound in Chek Lap Kok, Customs officers intercepted a parcel from Malaysia, which was addressed to D2 at her address in Kwai Chung and described on the consignment note as containing “protein” [13]. The parcel contained a total of 20 plastic bottles of milk powder, of which 10 contained the drugs in question[14]. The value of the drugs at the time of the offence was $4,067,820.

17.  Two controlled delivery operations (on 14 July 2020 and 4 August 2020 respectively) were conducted by two different Customs officers, who posed as postmen, at D2’s address but both were unsuccessful since no one answered the door. On the second unsuccessful delivery, a notification card was left inside the mailbox of D2’s address.

18.  There were a series of WhatsApp communications involving D1, D2 and other persons in relation to the collection of the parcel.

19.  On 7 August 2020, at 11:23 am, D1 attended Kwai Chung Post Office (the Post Office) in order to collect the parcel. He presented the notification card and an image of D2’s Hong Kong Identity Card (HKID card) on his mobile telephone for verification purposes. He also produced his own HKID card for registration and affixed his signature on the consignment note. At 11:25 am, the parcel was handed over to D1, who put it into a large blue bag. Immediately after leaving the Post Office with the parcel, he was arrested.

20.  D2 was not arrested until 10 December 2020 at her address. In a subsequent video recorded interview, she admitted knowing D1 through the Tinder application and having meals with him on two occasions[15]. She explained that she had been out of work for some time when she met D1. He asked her to lend him her address for receiving an item and offered her a monetary reward, to which she agreed[16]. She was initially instructed by D1 to collect the parcel at the Post Office[17]. She said she had no idea what the item was, and she would not have agreed to be involved if she had known that it was a dangerous drug. She had explicitly asked D1 if it was a dangerous drug and he said it was not[18]. After receiving the notification card from her mailbox, she was asked by D1 to pick up the item at the Post Office.

21.  On the morning of 7 August 2020, D2 went to line up at the Post Office as instructed by D1, but she was then contacted by an unknown person who asked her to wait for someone before collecting the item. She then came out of the queue. D1 soon came to meet her near the Post Office. D1 said he would collect the parcel himself, and she gave him the notification card[19]. She also sent D1 a picture of her HKID card because she thought D1 would need to produce it to collect the item with the notification card, which was addressed to her. She waited for D1 in the vicinity while he collected the parcel inside the Post Office. After D1 had collected the item and come out from the Post Office, he told her that he needed to give the item to his friend and could only pay her after he had received the reward from him.

22.  D2 claimed she did not receive any reward as promised as she lost contact with D1 after the incident[20]. She said she was not aware that D1 had been arrested and had no contact with him. She called the unknown person who told her that everything should be fine[21]. She explained that she had not kept a record of her communications with D1 because she had lost her telephone[22]. She reiterated that she did not know dangerous drugs were involved[23].

The WhatsApp communications

23.  D2’s mobile telephone revealed a series of WhatsApp communications between her and a friend, known as I-Fiona, during the afternoon of 7 August 2020. The following relevant exchanges took place between them[24]:

(a)  At 2:03 pm, D2 said “the guy responsible for the delivery didn’t answer the phone, again. Kinda’s[25] senior called me again and asked if I had settled everything … What I worry most is that once I tell him I have settled everything, Kinda would block me immediately … Do you think it’s a good idea if I … call him and say that I have settled everything, just to see if Kinda would block me right away … It’s because once the packet is delivered, handed over to him, then there’s nothing I can do.”[26]

(b)  I-Fiona said, “even if he tricks you and doesn’t pay you the several thousand dollars, you can’t sue him. It’s illegal anyway …”. At 2:33 – 2:34 pm, D2 replied, “you’re right. There’s nothing I can do.”[27] (Emphasis added)

(c)  At 2:36 pm, D2 further stated, “if something bad happened, at least I can say that I have not received any money. Should be a less serious offence.”[28]

(d)  At 2:37 pm, I-Fiona comforted D2 and said, “he won’t mess with you”, and D2 replied, “that’s what you think”. I-Fiona told her, “there’s no need to do so”, and D2 answered, “it’s my address.”[29]

(e)  Later, I-Fiona suggested that D1 might have been arrested. In response, D2 said she was “really scared” as D1’s telephone would be checked if he got arrested, while the “box of stuff” mailed to the Post Office also had her address on it. D2 thought if she should “call his senior” to ask about it, but she said she had already called him a few times and was told that there should be no problem[30].

24.  Whilst no records of the WhatsApp communications between D1 and D2 on 7 August 2020 were kept on D2’s mobile telephone, the following messages were found on D1’s mobile telephone (in which D2’s mobile telephone number was stored under the name of “ww”):

(a)  At 10:29 am, D2 told D1, “I don’t have another bag that big at home”. D1 responded with an emoji of an unamused face and asked D2 to “leave home first”[31].

(b)  At 11:00 am, D2 sent D1 a photograph of her HKID card[32].

(c)  At 11:07 am, D1 sent D2 another photograph showing the “Important Notes for Mail Collection” printed on the notification card, followed by a voice message telling her to look at the remarks, which stated that the collection of the item could be made by “just presenting the card” [33].

25.  The appellant has also referred to the WhatsApp communications between D1 and “Fat Hei”, which were extracted from D1’s telephone[34]. These communications revealed that Fat Hei was monitoring the progress of the delivery of the parcel (which was posted in Malaysia on 22 June 2020[35]) and giving instructions about what should be done. The communications included the following[36]:

(a)  On 17 June 2020, D1 sent to Fat Hei the address of D2. As requested by Fat Hei, D1 also sent a photograph of a letter addressed to D2 as proof of her address;

(b)  On 4 August 2020, D1 shared the contact of “ww” (D2) with Fat Hei, who asked D1 to tell D2 that someone would be calling her;

(c)  At 8:08 pm on 5 August 2020, Fat Hei sent D1 a screenshot of the parcel’s status showing that it was being transported to the Post Office for collection. D1 then sent a photograph of the notification card at 9:19 pm;

(d)  At 9:28 am on 7 August 2020, at Fat Hei’s request, D1 sent him D2’s contact details again. Fat Hei told D1 to help him keep an eye on D2 and to let him know when the thing was done.

The grounds of appeal

26.  The Secretary for Justice appeals against the discharge of D2 on the following grounds:

(1)  The Judge erred in law in ruling that the prosecution could not properly proceed with the charge against D2 on the basis that she was acting in a joint enterprise with D1 (with whom she was jointly charged with the offence) to unlawfully traffic in the dangerous drugs concerned.

(2)  The Judge misapplied the principles regarding the determination of an application under s.16 and wrongly ruled that the evidence disclosed by the prosecution was insufficient to demonstrate a prima facie case that D2 had knowledge of the dangerous drugs concerned.

27.  It is the appellant’s submission that the Judge had misapplied the principles in determining a discharge application and wrongly ruled that the evidence disclosed by the prosecution was insufficient to demonstrate a prima facie case against D2. It is argued that she fundamentally misunderstood the established principles on the doctrine of joint enterprise in ruling that the prosecution could not properly proceed with the charge against D2 on the basis that she was acting in a joint enterprise with D1 in trafficking in the drugs in question.

The s.16 application

28.  Mr Derek Lau, with Ms Angel Yuen, for the appellant, complained that the s.16 application was instigated by the Judge and dealt with all in one day without adherence to the Rules. D2’s counsel made an oral application, and prosecuting counsel provided a brief written response to the application, after which the Judge gave her ruling.

29.  Mr Lau explained that the trial against D1 and D2 was due to commence on 18 July 2022, but did not proceed because D1 had close contact with someone infected with the coronavirus and could not attend court. The following hearing days were occupied with brief discussions between the Judge and counsel about case management matters, including the admitted facts and whether a no case submission would be made during the trial. In the discussions on 19 July 2022, D2’s counsel said that most of the facts could be agreed upon and he would not need to cross-examine the prosecution witnesses. It was then that D1’s counsel gratuitously quipped that if it were his client, he would be thinking of a s.16 application. It seems that is how the matter first arose. It was next referred to obliquely the following day, when the Judge said to D2’s counsel that she noticed there was no application by him. He said, “No, not at all.”, to which she responded, “So we might have something at half-time.” He indicated that he was thinking about it[37].

30.  On 21 July 2022, the Judge asked D2’s counsel whether he was going to “reconsider” making a s.16 application. The Judge said that there was “some clear merit in making such an application”, while prefacing her remarks that she was not indicating her view as to whether or not it would succeed[38]. She then suggested that there might be some difficulties for the prosecution on the question of “possession, custody and control” of the drugs[39]. She said to D2’s counsel[40]:

“…, if you were to make that application at half-time, if you were, because we now know the top and bottom what the prosecution are intending to call, there are ramifications to the case of D1. In fact, there is an argument that he’s been prejudiced by the fact, albeit that it would be subject to a direction, by your VRI.”

She went on to say[41]:

“… And then I’m in a position where it may be - and I’m not encouraging it, I’m just mentioning it - Mr Boyton then says ‘You’ve got to discharge the jury, this is really not fair, because no matter what you say to them, they’re now heard it.’ So if it were the case - and again, I’m putting no pressure on anybody, I’m just trying to think ahead - if it were the case that you took the view, because I’m struggling with why there’s a difference for you between now and half-time … then I’d ask you to consider it because it causes other problems with jury management.”

31.  The Judge added that if D2 was to succeed, it seemed to her that it would be “hugely prejudicial” to D1 to have D2’s video recorded interview before the jury “when it may very well be that you’re not going to be there.”[42] Mr Lau is critical of the Judge’s remarks because they revealed that she was already considering a no case submission when no evidence had yet been heard. We note, however, that the Judge told D2’s counsel to think about the matter and that he should discuss it with prosecuting counsel, adding that if he wished to make such an application it would require leave to waive the requirements under the Rules[43]. D2’s counsel asked for time until the next day to consider the matter and prepare something “more solid” than a verbal submission. The Judge said that if he chose to make the application, she would only require bullet points, if that, because it was a s.16 application. She adjourned the matter until 2:30 pm[44].

32.  At the resumed hearing that afternoon, D2’s counsel made an oral application pursuant to s.16 and gave a brief oral submission in support of it [45]. He referred to the test in Galbraith and made two points. The first was that D2 did not have physical possession of the drugs and that presumptive possession or constructive possession did not apply. He submitted that because the drugs were in the custody of Customs and Excise and that D2 was an intermediary, she was not in control of the drugs. The Judge found this an interesting argument, which seems to have influenced her thinking that in order for the prosecution to establish a case against D2 it had to prove that she had physical possession of the drugs in question[46].

33.  The second point was that D2 denied knowledge of the drugs and the prosecution could not show either by direct facts or indirectly by inference that she knew drugs were in the parcel. D2’s counsel agreed with the Judge that there was nothing in D2’s video recorded interview from which knowledge could be inferred. As to whether there was evidence from which to draw an irresistible inference of knowledge, D2’s counsel said his argument was that “all these nitty-gritty evidence would not be sufficient to invite a jury to draw a conclusion that D2 must have guilty knowledge.”[47] The Judge noted that there was a fine line between speculation and inferences, and there followed a short discussion about the evidence, particularly regarding D2’s dialogue with I-Fiona that she was involved in something “illegal”. D2’s counsel submitted that the jury could not be sure that “illegal” referred to dangerous drugs[48].

34.  After D2’s counsel completed his oral submissions, the Judge turned to prosecuting counsel to respond but, before doing so, raised the issue of non-compliance with the Rules[49]:

“Court: … Mrs Remedios, the first point is actually the Rules because technically they should have filed an application under the Rules, which of course the court has a discretion to amend. Do you have anything to say about that …

Ms Remedios: No, I don’t.

Court: … about being in any way prejudiced?

Ms Remedios: No. No, I’m not going to say anything.

Court: All right. So if I give them leave to make the application today by -- all right, thank you for that.

Ms Remedios: I’m not fighting for that because in fact the court can add its own motion …

Court: Yes, I know, but I …

Ms Remedios: … bring upon that.

Court: … just -- to make sure that you’re not suggesting that the prosecution have been prejudiced.

Ms Remedios: No.

Court: All right.

Ms Remedios: I shan’t waste time on that.

Court: Yes.”

35.  We observe that prosecuting counsel had the opportunity to insist on compliance with the Rules but chose to proceed with the application. It would appear that no one in court appreciated that waiver of the Rules could only take place in the circumstances stipulated by Rule 12 and that the waiver did not extend to disregarding the Rules in their entirety.

36.  Prosecuting counsel submitted a brief written submission in the time available to her, describing the evidence that established a prima facie case against D2[50]. The Judge queried how prosecuting counsel could get around the need for D2 at some stage to be in “possession, custody and control” of the drugs[51]. The Judge pointed out that D2 had been substantively charged and there was no allegation of an inchoate crime[52]. Prosecuting counsel submitted that D2 was part of the scheme and she did not have to have possession of the drugs since it was a case of joint enterprise[53]. There was a discussion about knowledge, and the Judge indicated that the evidence was not enough to infer that D2 knew of the drugs, notwithstanding the reference to being involved in something “illegal”[54]. It would appear the Judge was of the view that on the evidence, no reasonable inference could be drawn that D2 knew the parcel contained drugs[55].

The Judge’s ruling

37.  At around 4:00 pm on 21 July 2021, the Judge handed down her written ruling. She interpreted the prosecution case as alleging that D2 played “a logistical role only” and that she aided and abetted D1 and others unknown to traffic in dangerous drugs[56]. She stated that it mattered not whether D2 was prosecuted on a joint enterprise or accessorial liability basis because the prosecution would have difficulty in proving that she had knowledge of the drugs. She summarised the evidence relied on by the prosecution to establish a prima facie case against D2 as follows[57]:

“a. The package airway bill is in the name of D2 and uses her address which she accepted she had provided for this purpose;

b. She accepts that she agreed to receive the package for a reward;

c. That reward was in the region of several thousand dollars for something the way bill identified as ‘protein powder’;

d. She had in her possession for a short period of time, the notification card left at her address in order for her to collect the package from the post office;

e. She intended to collect it and went to the Post Office in order to do so;

f. She was directed by a third party to allow D1 to collect it on her stead and provided the card and a copy of her ID so that D1 could collect it;

g. She waited in the vicinity of the post office whilst D1 collected the package in order to obtain her reward;

h. She attempted to contact D1 and the controlling third party after D1 had gone to collect the package[;]

i. She acknowledged within the digital evidence that the enterprise she was engaged upon was illegal[;]

j. The street value of these drugs was some $4 million odd.”

38.  The Judge went on to state that[58]:

“12. It is therefore accepted that there is no evidence at all of physical possession or custody and control of the drugs. Indeed, there is evidence that a third party was exercising control and D1 came to be in possession. There is no direct evidence either of any exercise of the means of custody or control although by inference the defendant had the means of collection of the package as that exercise required the notification card and her ID and she travelled to the Post Office with the intention of collecting the package. However, she was under the direction of a third party as to that and was ultimately told to assist someone else to collect the package and not to do so herself. This is supported by the digital evidence which is somewhat disparaging of D2. I do not see how it can be said she had any independent control over the package at any stage. The prosecution accepts this.

13. As for her knowledge. There is nothing within the digital evidence or her VRI, from which the prosecution can show that D2 knew the parcel contained dangerous drugs. At its highest, the digital evidence indicates that she believed that the contents of the package were illegal but no more. That is insufficient to ask the jury to draw the only reasonable inference that what the package contained were dangerous drugs.”

39.  In the result, the Judge ruled that the evidence against D2 was insufficient to constitute a prima facie case against her for trafficking in a dangerous drug. She came to this decision for two reasons[59]. The first and main reason concerned the issue of D2 having physical possession of the dangerous drugs:

“I am of the view that the answer to the question of whether a properly directed jury could, may or might be satisfied beyond reasonable doubt that the defendant possessed or had custody and control over the goods, is NO.” (original italics)

The second reason, which was an alternative to the first, concerned her assessment of the evidence on the question of D2’s knowledge:

“If I were wrong in that because the prosecution could properly proceed on a joint enterprise basis, I do not believe that a jury could, may or might be satisfied beyond reasonable doubt that she knowingly sought to possess or assist in possessing dangerous drugs.” (original italics)

The appellant’s submissions

40.  The appellant’s challenge to the Judge’s order to discharge D2 is based on two grounds of appeal and a general complaint that the application was dealt with in an unsatisfactory manner because of non-compliance of the Rules. We will deal with each in turn but we first address the complaint about the Rules.

Non-compliance with the Rules

41.  We observe that the Judge in her ruling referred to the Rules and to the requirement that a s.16 application had to be made by way of a notice, which under Rule 5 was required to be served at least 14 days prior to the date of hearing. She noted that under Rule 12, she could waive or remedy any non-compliance which was not wilful. She acknowledged that her discretion had to be exercised judicially in accordance with normal principles, including considering any prejudice to the prosecution by such late notice. She further noted that prosecuting counsel agreed that no prejudice had resulted to the prosecution by non-compliance with the Rules. However, Mr Lau submitted that none of the rules were complied with, and it was during the application when prosecuting counsel was asked to reply that the Judge addressed the matter. He confirmed that the Registrar was not involved in processing the application or attending to the matters required under the Rules.

42.  Formality is important in the law. The failure to adhere to the procedural rules and requirements can have profound adverse consequences on the administration of justice. As stated by Lunn VP, giving the judgment of the Court, in Secretary for Justice v Ng Siu Lun [60]:

“The obvious purpose of the Rules is to ensure that the issues are properly identified and addressed by the parties so that they can better assist the court, not least with the provision of relevant authorities.”

43.  In the present case, as we will explain, the s.16 application was not properly presented or considered, and as a result a wrong decision was made. With due respect to the Judge, the application ought not to have been permitted to proceed in the manner in which it did. We are of the view that had the application been adjudicated in accordance with the Rules it would have given the parties time to consider the relevant legal principles properly and to focus on the issues to be addressed appropriately.

44.  A hurried application of this type can have serious deleterious consequences: Attorney General v Ng Yuk Tung [61]. This case unfortunately proves the point because the submission on behalf of D2 was presented orally without citing any authorities, except for a passing reference to Galbraith. Prosecuting counsel submitted a brief written submission, also without any authorities. No one seemed to be aware of the leading authority on joint enterprise which was a critical consideration in this application[62].

45.  It was also unusual that the application arose at the Judge’s behest, while expressing her concern about the impact a no case submission by D2 would have on the trial proceedings[63].

The requirement of physical possession

46.  Mr Lau submitted that the Judge fundamentally misunderstood the principle of joint enterprise and thereby wrongly discharged D2. He referred to HKSAR v Chan Kam Shing[64] and submitted that the essence of the joint enterprise principle was not dependent on the defendants sharing physical performance of the actus reus, but involved the accomplice’s culpability for the criminal act of another person falling within the agreed scope of the joint enterprise or being foreseen as a possible incident of it.

47.  Mr Lau argued that even though D2 never had physical possession, custody or control of the drugs, there was prima facie evidence that she participated in a joint enterprise with D1 and other persons unknown to obtain possession of the parcel containing the drugs. This consisted of D2’s admissions and the WhatsApp communications disclosing her agreement to give her address to receive the parcel for reward and her involvement in collecting the parcel, including her attending the Post Office with D1 and communicating with D1’s senior.

48.  Whilst accepting that the act of D2 providing her address and other necessary details to facilitate the receipt of the parcel would also be consistent with the role of an accessory in assisting and encouraging others to commit the offence, Mr Lau pointed out that under the principle of accessorial or joint criminal enterprise liability, the prosecution did not have to prove that D2 took physical possession of the parcel.

49.  Mr Hanif Mughal, representing D2 in the appeal but not at trial, submitted that the Judge did not conclude that there must be evidence showing D2’s physical possession of the drugs in the case of joint enterprise. He contended that she simply commented on the prosecution’s charge by suggesting that the proper way to proceed would be on an allegation that D2 aided and abetted D1 to traffic in a dangerous drug. We cannot agree with this submission because it is apparent the Judge was firmly of the view that the prosecution had to prove D2 had physical possession or custody and control of the dangerous drugs in order to establish a joint enterprise with D1.

50.  In the context of joint enterprise, Mr Mughal very properly accepted that the absence of evidence showing D2’s physical possession of the parcel would not be significant, but with the caveat that it was incumbent on the prosecution to show that the common intention was to possess the dangerous drugs for the purpose of trafficking. He contended that it was arguable that the evidence in the documents was not sufficient to disclose that D2 knew of the dangerous drugs so as to prove the common intention with D1 to commit the offence[65]. He primarily directed his submission on whether there was sufficient evidence to prove D2’s knowledge that the criminal enterprise involved trafficking in dangerous drugs.

51.  The principles regarding the application of the doctrine of joint enterprise in criminal cases have been authoritatively settled by the Court of Final Appeal in Chan Kam Shing. Whilst the doctrine of joint enterprise is different from the traditional rules on accessorial liability, the two may provide an overlapping basis for establishing guilt against a defendant[66]. Whether under the doctrines of joint enterprise or accessorial liability, the question of the criminal liability of an accomplice is not dependent on the defendant sharing physical performance of the actus reus. The essence of the joint enterprise principle involves the accomplice’s culpability for the criminal act of another person falling within the agreed scope of the joint enterprise or being foreseen as a possible incident of it[67]. Among the two forms of joint enterprise, the basic form involves co-adventurers simply agreeing to carry out and then executing a planned crime, having a common purpose, understanding or agreement[68]. Hence, the liability of co-adventurers is independently based on each defendant’s participation in a joint criminal enterprise with the requisite mental state to constitute the offence relevant to the defendant in question[69]. In a case alleging a joint enterprise to traffic in a dangerous drug, the prosecution has to show that the defendants each shared a common intention to commit the offence and played their part in it to achieve that aim: HKSAR v Wong Chun Yau[70].

52.  The Judge in her ruling, noted that D2 had been charged with the substantive offence of trafficking in a dangerous drug with D1, adding, “The prosecution must be able to prove beyond reasonable doubt inter alia that the defendant knowingly possessed dangerous drugs or exercised custody and control over them.”[71]

53.  The Judge acknowledged prosecuting counsel’s submission that this was a case of joint enterprise and there was no requirement to prove that D2 possessed the drugs. She then gave this description of her understanding of the prosecution case[72]:

“The events, as they evolved, led to her [D2] assisting D1 to take possession. That is not how I understood the case was to be presented. What is now alleged is that the defendant played a logistical role only. In essence she aided and abetted D1 and others unknown to traffic in dangerous drugs. If that is now the case, it would have assisted the jury for it to be charged as such.”

She then said that even if the case could properly proceed on the basis of a joint enterprise the prosecution could not answer the difficulty as to knowledge.

54.  The Judge identified the issue she had to address by posing the following question[73]:

“On either basis, what is the evidence, whether direct or indirect, the prosecution rely upon to prove that in carrying out either role, the defendant had possession, custody or control and that she knew that what she (or D1) possessed were dangerous drugs?”

55.  The Judge, unfortunately, fell into error that the prosecution, in establishing its case against D2, had to show that D2 was in “physical possession or custody and control of the drugs”. She said that she could not see how it could be said that D2 had any independent control over the package at any stage. She rejected the notion that “a properly directed jury could, may or might be satisfied beyond reasonable doubt that the defendant possessed or had custody and control over the goods”[74]. Her conclusion was patently wrong, and seems to have been based on a misunderstanding of the doctrine of joint enterprise. As we have already noted, the leading authority on joint enterprise was not referred to by the Judge or by counsel for the parties.

56.  D2 was jointly charged with D1 for trafficking in the dangerous drugs in question. It was alleged that they were part of a joint enterprise in which they shared a common purpose to commit the offence. It was therefore not necessary that D2 had to be in physical possession of the drugs to be guilty of this offence.

The assessment of the evidence on knowledge

57.  Mr Lau submitted that there was a prima facie case against D2 to show that she participated in a joint enterprise with D1 and other persons unknown to obtain possession of the parcel containing the dangerous drugs. He listed the evidence that has already been addressed, which revealed that she agreed to provide her address to receive the parcel for reward; she collected the notification card and gave it to D1; she attended the Post Office with D1 to collect the parcel; she assisted D1 to obtain the parcel by giving the details of her identity card; and she waited at the Post Office while D1 collected the parcel. Mr Lau also referred to her recorded communications, which revealed that she was involved in something “illegal” and she had contact with D1’s senior when attending the Post Office to collect the parcel. He finally submitted that D2 would have known the true nature of the parcel in light of the degree of her involvement and the substantial value of the drugs in question.

58.  Mr Mughal submitted that the circumstantial evidence, taken at its highest, could only demonstrate an agreement between D1 and D2 to take possession of the parcel but not to the extent of knowing its contents. The WhatsApp communications showed no more than D2 being aware that something illegal was contained in the parcel. There was no evidence to show the common intention to traffic in dangerous drugs so as to invoke the doctrine of joint enterprise. He contended that any such basis would rest on mere speculation. We do not agree, bearing in mind the evidence on the papers and the test to be applied under s.16. But that said, the points made Mr Mughal about the evidence could form the basis of an application of no case to answer or a closing speech. However, this will ultimately depend on how the prosecution evidence is presented and received, and subject to any other evidence that is adduced at the trial.

59.  We are satisfied that the admissible evidence disclosed by the papers is sufficient to establish a prima facie case against D2 on the basis that a properly directed jury “could, may or might” find she was knowingly a party in a joint enterprise with D1 to traffic in a dangerous drug contained in the parcel. We do not need to repeat the evidence that has already been described in this judgment, but suffice it to note that D2 agreed with D1 to provide her name and address to receive a parcel from aboard for reward; she provided the notification card to collect the parcel to D1; she agreed with D1 to attend the Post Office to collect the parcel; she assisted D1 to collect the parcel when she was instructed that D1 would collect it; she received instructions from a third party, who she identified as D1’s senior, regarding the collection of the parcel; she remained in the vicinity of the Post Office and met up with D1 after he had had collected the parcel to receive her reward; and she acknowledged in her text messages that she was engaged in something “illegal” and was concerned that D1 might have been arrested.

60.  It appears there was no dispute about the prosecution evidence as a set of admitted facts had been signed by D2’s counsel, which included the evidence against D1 and D2[75]. It is also noteworthy that the evidence against D1 may be admissible against D2, depending on how the prosecution advances its case and whether it would be seeking to rely on the acts and declarations of a co-offender in furtherance of the joint enterprise (subject to the evidential requirements before evidence under this rule can be admitted: Vivien Fan v HKSAR [76]; Phipson on Evidence[77]. However, it could be said that the communications between D1 and Fat Hei regarding the collection of the parcel from the Post Office showed that D2 had limited involvement in the matter[78].

61.  As rightly pointed out by Mr Mughal, there is a defence case which can be advanced on behalf of D2 that she did not know the parcel contained dangerous drugs. But the issue to be addressed at the stage of a s.16 application is whether there is a prima facie case against her on the papers. In the course of a trial that may change.

62.  We note that the obligation on a judge in deciding a s.16 application is to consider whether there is sufficient evidence disclosed by the papers “for the offence with which he [the accused] is charged or for any other offence for which he might be convicted upon that charge.” Whilst a judge may decide there is no prima facie case against the accused for the offence charged, there may be another offence for which he might be convicted, allowing the case to proceed to trial. This will be subject to s.16 (3) and (4) and the impact of a direction that the accused shall not be arraigned on the offence charged and that he be discharged, which is deemed to be an acquittal. We mention this matter because, in the present case, there was discussion that the prosecution case was one of joint enterprise but there was no allegation of accessorial liability, which the Judge seemed to think was more appropriate[79]. It is not quite clear whether it was understood that the court could find a prima facie case on an alternative offence. Although, the Judge in her ruling questioned whether “on either basis” the prosecution could prove that D2 had “possession, custody or control and that she knew that what she (or D1) possessed were dangerous drugs”[80].

Conclusion

63.  In our view, an examination of all the evidence revealed by the documents before the Judge, disclosed a prima facie case of trafficking in a dangerous drug against D2 together with D1. We accordingly allowed the appeal, quashed the acquittal and ordered D2 to be tried for trafficking in a dangerous drug on the original indictment with D1. In light of the history of the case, we also ordered that the case be tried before a different judge.

64.  We wish to add that this Court has recently handed down a decision in HKSAR v Ma Ka Kin[81], where it quashed the appellant’s conviction for trafficking in a dangerous drug and declined to order a retrial. In that case, the appellant had provided his residential address to another person to receive a parcel from abroad. Upon receipt of the parcel’s notification card, he gave it to the other person. There was no suggestion that he had ever sought to collect or possess the parcel, or that he had any further involvement in the matter. The parcel was found to contain dangerous drugs. He was jointly charged with the other person for trafficking in the dangerous drugs. He pleaded guilty to the charge in highly suspicious circumstances, which were condemned by the Court, while the case against the other person was dropped. We mention the case to highlight the differences in the circumstances and the issues between that case and the present one.