THE QUEEN v. TIN SAU-KWONG

Headnote

Criminal Law and Procedure - application for discharge under Criminal Procedure Ordinance (Cap. 221) s.16 - application for discharge after a committal where the evidence has not been considered contrasted with a submission of no case to answer at the close of the Crown's evidence.

SUPREME COURT OF HONG KONG

HIGH COURT

APPLICATION FOR DISCHARGE NO. 2 OF 1995

-----------------

-----------------

RULING

-----------------

1. TIN Sau-kwong, the applicant, was on 2 November 1995 committed for trial, without a preliminary enquiry, on four charges, which now form counts 1 to 4 inclusive of an indictment against him dated 10 November 1995. He now applies under section 16 of the Criminal Procedure Ordinance, Cap. 221, for discharge on counts 1 and 2, which are in the following terms:

First Count

STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE

Second Count

STATEMENT OF OFFENCE

PARTICULARS OF OFFENCE

2. In response to a question from the court Mr ZERVOS, who appears for the Crown, informed the court, and for the first time the defence (although they had been asking about it before) that the means of perverting the course of justice referred to in count 2 was the murder contemplated in the conspiracy in count 1. The Crown's case is essentially the same on both counts and in due course the question whether only one of them should be permitted to remain on the indictment may have to be considered.

3. In accordance with the provisions of section 16, the applicant has attempted to show that the evidence disclosed in the committal papers and in the additional evidence of which notice has been given is insufficient to establish a prima facie case against him for the offences charged in counts 1 and 2 or any other offence for which he might be convicted on those counts.

4. It is provided by section 16(3) that

"The judge may after perusal of the documents and after hearing any representations which the accused and the Attorney General may wish to make, direct that the accused shall not be arraigned on the charge, and direct that he be discharged."

5. A discharge under section 16, which is appealable, is deemed to be an acquittal.

6. There was an application for discharge on count 3 but it was abandoned and cannot be renewed.

7. The question to be determined is a question of law. It is common ground that the test to be applied is to be found in the well-known case of R v Galbraith, [1981] 1 WLR 1039 and in AG v LI Fook-shiu Ronald, Criminal Appeal No 3 of 1990.

8. In Galbraith, at page 1042 of the report, Lord LANE, CJ set out the test as follows:

"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

9. The test was further considered by the Hong Kong Court of Appeal in LI Fook-shiu Ronald (supra). There it was necessary for the crown to prove an essential element of the crime charged by inference from primary facts which it sought to prove by direct evidence. In giving the judgment of the Court of Appeal, KEMPSTER, JA spoke at page 16 of the judgment of the obligations of a judge hearing an application for discharge under section 16. He said of the judge:

10. The word "properly" appears in the first above quoted paragraph in the judgment of KEMPSTER, JA and I have no doubt that it may also be implied after the word "directed" in the third paragraph quoted above.

11. Mr Adrian HUGGINS, QC, who appears for the applicant, places great weight on the word "properly" where it appears before "convict" in the Galbraith judgment. It is for an appellate court alone in its supervisory jurisdiction and then only after the event to judge a conviction to be unsafe and unsatisfactory. On a submission of no case, a trial judge is not permitted to look at the evidence before him and speculate as to whether any future conviction based upon it would be unsafe and unsatisfactory. I therefore consider that the words "could not properly convict" contemplate a situation where the trial judge finds that a conviction based upon the evidence before him would be worse than merely unsafe and unsatisfactory: it would have to be manifestly improper.

12. In Attorney General v Phung van Toan and Others, [1992] 1 HKCLR 56 at page 63, SILKE, V-P, in a case similar to the present one, in that there had been a committal without consideration of the evidence, said, in relation to a section 16 application:

"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."

13. It would seem on that basis that the judge must assume that the jury will accept all the admissible evidence as true. Yet KEMPSTER, JA in Ronald LI (supra), in a judgment cited by SILKE, V-P in Phung Van Toan, said:

14. These two contrasting passages illustrate the difference between, on the one hand, the situation where there is an application for discharge after a committal where the evidence has not been considered (Phung Van Toan and the present case) and, on the other hand, the situation where a judge is hearing a submission of no case at the close of the Crown's evidence. In the latter situation the judge has been and heard the Crown witnesses, some of whom may have been thoroughly discredited by cross-examination, and he is aware of the true quality of the evidence. In the former highly artificial situation, the judge can only assume that the paper evidence before him will be taken at its highest by the jury.

15. I do not accept Mr HUGGINS' submission that where a witness makes a simple statement of fact it must be disregarded unless the statement provides some evidence, for example, of the source of his knowledge. Whereas I disregard for the purpose of this application all statements which are plainly hearsay and inadmissible, I assume that simple statements of fact will be accepted as true. I cannot speculate as to what the state of the evidence might be when tested by cross-examination. If a defendant gives up his opportunity to test the evidence at a preliminary enquiry, he must accept the consequences. Mr HUGGINS says that a defendant is not under any duty so to test the evidence and in that he is correct. But a defendant has a right to test the evidence and cannot, having waived that right, ask the court to speculate as to what the result of testing it might have been.

16. One further matter I should mention on the question of the standard of proof to be borne in mind on a section 16 application is the decision in AG v YAU Ka Ping, [1977] HKLR 76 at page 80, where HUGGINS, JA, as he then was, said:

"... in determining the question of law whether or not a reasonable jury might safely convict, the judge had to bear in mind that the standard of proof to be applied in arriving at any such theoretical conviction was that beyond reasonable doubt. The standard of proof might affect what a reasonable jury would decide. Thus evidence which might raise a prima facie case in a civil action for negligence ... might not raise a prima facie case if given in a criminal prosecution."

17. Whilst noting that nowadays the court would say "properly" where HUGGINS, JA said "safely", I respectfully adopt that passage as a guide.

18. I would also mention that Lord DIPLOCK in Haw Tua Tau v Public Prosecutor, [1982] AC 36 AT page 150 said:

"... the court must act on the assumptions (a) that all such evidence of primary fact is true, unless it is inherently so incredible that no reasonable person would accept it as being true; and (b) that there will be nothing to displace those inferences as to further facts or to the state of mind of the accused which would reasonably be drawn from the primary facts in the absence of any further explanation."

19. Mr HUGGINS submits that if the conspiracies charged are to be inferred from purely circumstantial evidence, it is basic law that there could only be a proper conviction if the facts are not only

20. He prays in aid Hodge's case, (1838) 2 Lewin 227, and Jellyman, 1921 16 Criminal Appeal Reports 4.

21. It is now clear, however, that it is for the jury, properly directed as to the law, to decide whether an inference may be drawn from primary facts. In TONG Yuk-tim v R, [1980] HKLR 140, LEONARD, J, as he then was, giving the judgment of the Court of Appeal, said at page 142:

"While it was justifiable for the judge to infer that both the equipment and the appellant were present at the same time in the premises, that is not the only inference that can reasonably be drawn from the prosecution evidence. For this reason we are satisfied that a submission of no case to answer which was made at the conclusion of the prosecution case should have succeeded and that the appellant should have been found at that stage of proceedings not guilty of the charge of manufacture."

22. But in the later case of AG v NG Yuk-tung, Criminal Appeal No 588 of 1991, the Court of Appeal referred to that passage from LEONARD, J's judgment and said of the decision in TONG Yuk-tim:

"This decision was before Galbraith. Having regard to the endorsement of the latter by this court in LI Fook-shiu, we are satisfied that the dictum of Leonard J was per incuriam."

23. I am now going to refer to the alleged admission by counsel for the applicant. Earlier in the hearing there was argument on an alleged admission made by counsel for the applicant before a magistrate. It is the Crown's case that Mr. EGAN, counsel then acting for the applicant, made an admission that the applicant made a telephone call, which is the subject of count 3 and which is relied upon by the Crown in support of counts 1 and 2. There has been an attempt on behalf of the applicant to place before this court an affidavit denying the admission and alternatively withdrawing it. I have declined to take the affidavit into account for I am at this stage concerned only with evidence produced by the Crown.

24. Mr HUGGINS has purported to withdraw the admission on behalf of the applicant but I take no account of that. Evidence of the admission is prima facie admissible and it will be open to the applicant, if the case goes to trial (and it will certainly go to trial on count 3) to cope with the alleged admission as he and his legal advisers think fit.

25. So far as background is concerned, on several occasions prior to this application I have heard certain bail applications during which I was apprised of the background to the present case, with which I am now familiar. That background knowledge has been of assistance to me in my present task but it has been necessary for me to remind myself, as I have done, that I must put out of my mind various matters which have come to my knowledge but which do not form part of the evidence upon which the Crown relies to support the present indictment.

26. I have been greatly assisted by detailed written submissions, schedules and a diagram supplied to me by counsel. Those papers are in the court file so that it will be possible, if my decision on this application is challenged, to see in detail the analysis and arguments submitted to me.

27. For present purposes I will briefly summarise the Crown's case, which I stress is only summarised in outline, as follows:

The Crown's case

28. The applicant is a senior member of the Wo On Lok Triad Society. One Tommy CHUI, then a Singapore resident, gave statements to the Independent Commission Against Corruption implicating the applicant and others in a conspiracy to smuggle cigarettes in huge quantities, making huge profits. The applicant and others were charged in December 1994 with several charges relating to the alleged conspiracy. It was described as a "one witness" case in the sense that it depended upon the testimony of CHUI.

29. The applicant attempted to persuade CHUI indirectly through an intermediary Mr WONG Ka-lik and directly by means of the telephone call to which I have already referred, to withdraw a statement he had made to the Independent Commission Against Corruption and to refrain from giving evidence against the alleged conspirators.

30. The defence elected to have a preliminary enquiry and required the attendance of CHUI, upon whom the Crown's case depended.

31. The preliminary enquiry was to take place on 26 April. On 29 March CHUI was abducted and killed in Singapore. His body, still clothed, was weighted down with diving belts, put in three bags, one inside the other, and dumped in Singapore Harbour. His wallet and means of identification were left with him, as was some money. In due course his body floated to the surface and was identified.

32. Five men from Hong Kong, the persons named in counts 1 and 2, during a period of months before CHUI's death had been making trips to Singapore and staying each time for several days. The trips started after the defence was formally informed that CHUI was to be a witness. At least four of the men are members of the Wo On Lok Triad Society. The five left Singapore and returned to Hong Kong on the day following the abduction and murder of CHUI. When reports of the murder, linking it to the proceedings pending in Hong Kong against the applicant and others, appeared in the Hong Kong press, the five moved to mainland China where they behaved like men on the run. They are still there.

33. There is evidence from a triad expert that the method of tying up CHUI's body, using a certain number of weights on each diving belt, may be interpreted as a message that CHUI had been the subject of a triad execution for informing on a fellow triad and breaking a triad oath. CHUI's keys were found near a car used in the abduction, arranged in a pattern which the expert says is that of the sign of the Wo On Lok Triad Society.

34. There is evidence that a number of persons, including the five men and the applicant, had been seen from time to time, though not together, frequenting premises in Hong Kong connected with the Wo On Lok Triad Society. One of the places was the Kartel Association which contains a restaurant run by the applicant's wife. When in Singapore the five frequented the Windsor Sauna in which the applicant has or had an interest.

35. The persons who arranged accommodation for the five in Singapore know the applicant and one of them says he helped them because they were members of the Wo On Lok Triad Society.

36. The Crown relies on this part of the evidence to show that the five men and the applicant and those who helped the five in Singapore are part of what might be called the same social circle.

37. The Crown says that the irresistible inference is that the applicant, when persuasion had failed, must have conspired with his fellow triads to murder CHUI in order to prevent him from giving evidence.

38. I will now mention certain aspects of the evidence about which there has been argument, in order to indicate how I have decided to treat the evidence concerned.

The telephone call of 28 April 1994 to Tommy CHUI

39. There is evidence that the caller was the applicant. Mr HUGGINS claims that it is clear from the transcript of the call that the remakes made over the telephone were innocuous, but the Crown says that whilst on the face of it the applicant was making numerous references to CHUI's health, the true message being conveyed was a veiled threat to CHUI's well-being. It would be for the jury, looking at the conversation as a whole, against the background circumstances, to decide whether the call was calculated to intimidate CHUI. During the call, the caller asked not to be named and said at the end: "both of us understood without being explicit."

40. CHUI addressed his caller as "Big Brother", a triad appellation. That evidence is admissible to show the mode of address used by CHUI to the applicant. The trial judge may in due course exclude it in his discretion but it stands at present.

41. Next,

Evidence of dealings between the applicant and the alleged co-conspirators during the period of the alleged conspiracy

42. There is no such evidence. Mr ZERVOS made reference to evidence that Teddy TO heard Ah Tai, one of the five, say that he had received racing tips from the applicant, but that is inadmissible hearsay, and so far as I can tell it is all that Mr ZERVOS could find to establish any communication with the applicant.

43. Next,

The evidence of Barbara CHUI

44. Barbara CHUI is the sister of the deceased. Her evidence that she was visited by the applicant and YEUNG Kam-fai in May 1994 is admissible to show that in May 1994 the applicant was making enquiries about Tommy CHUI who had, in the previous month, started to give information to the Independent Commission Against Corruption. The fact that the visit was in May is apparent from the original statement of Barbara CHUI. Unfortunately there was a mistake in the date shown in the translation and this misled the applicant's legal advisers as to the relevance of the evidence.

Tommy CHUI's witness statements

45. I have heard argument as to whether the statements of the deceased CHUI are admissible and I have ruled that they are, not to prove the truth of their contents but in order to show the threat which they posed to the applicant as potential evidence against him on the charges he faced. The evidence is relevant to the issue of motive.

46. This is another illustration of the difference between a section 16 application in the present circumstances and a submission at the close of the Crown's case. It may well be that this and other evidence would be excluded by the trial judge in his discretion on the ground that such probative value as it may have would be outweighed by its prejudicial effect, but it is not for me at this stage to anticipate such a ruling and I must at this stage assume that all admissible evidence is before the jury.

The triad evidence

47. I have disregarded all evidence which is clearly hearsay, and there is a good deal of it. There then remains admissible evidence that the applicant is a senior member of the Wo On Lok Triad Society and there is evidence that four of the five men named in count 1 are also members of the Wo On Lok Triad Society, and I assume for the purposes of the application that the evidence is accepted by the jury as true.

48. It is admissible not to show criminal propensity but to show the relationship which exists between the applicant, the five alleged murderers and Ringo WONG and Teddy TO, and it is relevant to the expert evidence as to the significance of the tying up of the deceased and the arrangement of his keys.

The evidence of flight by the five men

49. Mr HUGGINS submitted that the evidence is inadmissible because he says flight is only admissible as an admission and admissions of guilt by the five men would not be admissible against the applicant. I certainly agree that confession statements by any of the five men would not be admissible against anyone except the maker.

50. Mr HUGGINS referred to R v CHAN Kwok-keung, [1990] 1 HKLR 359, where Lord ACKNER said at page 362:

"It is common ground that conduct, and in particular the flight of an accused after an offence has been committed, may be tantamount to admission by him of his guilt of that offence and as such admissible evidence."

51. That form of words was appropriate to the circumstances of the case which was then under discussion where the question was whether the alleged flight of the defendants was capable of corroborating other evidence. But in fact flight is an event and is part of the circumstances surrounding the alleged crime. It is circumstantial evidence which a jury can take into account.

Evidence of the behaviour of the five suspects after the death of CHUI

52. There are statements by certain females who spent time with some of the five in Hong Kong and in mainland China. I have already indicated my view that anything said to them by the suspects is clearly hearsay and inadmissible against the applicant. Evidence, however, of what the suspects actually did is admissible as part of the circumstantial evidence.

53. In his very detailed and helpful submissions Mr HUGGINS has pointed out a number of weaknesses in the evidence. I will mention some examples but I should say that I have noted all the detailed criticisms of the Crown's case which he has set out in his written submissions.

54. There is no evidence that the person who witnessed the abduction can identify any of the abductors. Nobody can say they saw any of the five meet or communicate with the applicant during the relevant period. There is no contact or fingerprint evidence or any other scientific evidence to link any of the five with anything used in the abduction.

55. There is evidence that some or all of the five men were in Singapore at times when certain items were stolen, which items the Crown alleges were used by the alleged conspirators for the purpose of the conspiracy. But apart from the fact that members of the group were in Singapore, there is no direct evidence to connect them with the thefts.

56. There is evidence that between 10 pm on 28 March 1995 and 8 am on 29 March 1995 (the probable date of the murder) a grey Hyundai motor-car was stolen. All five men were in Singapore at the time. It was later found, the only thing missing being a magnetic pass to the carpark where CHUI was abducted. There is no evidence that the pass was used in the abduction. It is a matter of supposition. A witness says that she saw the men driving a grey Hyundai in February or March 1995. That evidence to show a connection with the stolen car is tenuous in the extreme.

57. Those are just some examples.

58. In order to succeed the Crown needs to prove (1) that CHUI was murdered - that presents no difficulty - (2) that the five men named in count 1 murdered him and (3) that the murder resulted from the conspiracy alleged, to which the Crown must prove the applicant to be a party.

59. Mr HUGGINS has made a powerful submission to the effect that the evidence taken at its highest is not such that a reasonable jury, properly directed, could properly convict upon it. He emphasises the lack of direct evidence of guilt against either the five alleged murderers or the applicant. It is true that this is a circumstantial case.

60. After very anxious consideration, I have come to the conclusion that this is what is described in Galbraith as a borderline case. I am not persuaded that it is my duty to direct that the applicant shall not be arraigned. The prosecution should be permitted to put its case before a jury. I find that on the evidence, taken at its highest, a reasonable jury, properly directed as to the law, could properly convict. This is very much a case where one must stand back and look at the evidence as a whole in order to form a view.

61. At the close of the Crown's case, when the true strength of the prosecution's evidence has been tested (assuming that the witnesses turn up), the applicant will have an opportunity to submit that he has no case to answer.

62. The application is therefore dismissed.