SECRETARY FOR JUSTICE v. NG SIU LUN

CACC 304/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 304 OF 2013

(ON APPEAL FROM HCCC NO. 49 OF 2013)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1. This is an appeal by the Secretary for Justice against an order for discharge made under section 16(1) of the Criminal Procedure Ordinance, Cap. 221[1] (“the Ordinance”) by Deputy High Court Judge Woo on 12 August 2013 in respect of a single count on an indictment of attempting to traffic in a dangerous drug on 17 July 2012, namely 0.89 kg of cocaine, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134 and section 159G of the Crimes Ordinance, Cap. 200. Notice of the appeal was filed with the court on 27 August 2013. The appeal was brought pursuant to section 81E(2)(a) and (b) of the Criminal Procedure Ordinance on the grounds that the judge erred in respect of a question of law, namely making findings of fact and/or wrongly drawing inferences which were matters that ought to have been left to the jury to determine, and, having determined that the evidence before the court was sufficient to establish a prima facie case against the respondent on the count set out in the indictment, wrongly ordered his discharge. We allowed the appeal, quashed the acquittal of the respondent, ordered a trial on the indictment of HCCC 49/2013 and issued a warrant for the arrest of the respondent. We said that we would give our reasons for so ordering in due course. That, we do now.

2. The respondent was absent at the hearing.  Counsel for the Secretary for Justice informed the court that, having left Hong Kong on 16 August 2013 through Lo Wu to the Mainland, immigration records showed that the respondent had not returned to Hong Kong.  Notice of the appeal was served on the solicitors who have represented the respondent at trial, namely Messrs Ivan Tang & Co, on 28 August 2013. However, they replied that they had no instructions to act for the respondent.  As a result, the Notice and all subsequent papers served by the respondent had been served on his last known residential address in Tuen Mun.  Having regard to the provisions of Rule 4(1) of the Criminal Procedure (Appeal Against Discharge) Rules, Cap. 221 namely that service of notice of the appeal on the respondent is required “unless the respondent cannot be found or is outside Hong Kong”, we were satisfied that the appeal proceed in his absence.[2]

3. The application for the discharge of the respondent pursuant to section 16 of the Ordinance came about in unusual circumstances and in complete disregard of the provisions of the Criminal Procedure (Applications Under Section 16) Rules of the Ordinance, Cap. 221. August 12^th 2012 was fixed as the first day of trial.  However, at the outset Deputy High Court Judge Woo raised with Mr Adams, counsel for the prosecution, his concerns about the late service of evidence by the prosecution and in respect of the absence of direct evidence of “knowledge”.[3]  Although he did not say so in terms, it is clear that the judge meant knowledge in the respondent that the parcel contained dangerous drugs.  Having asked Mr Adams “…how do you propose to prove it?”  The judge supplied his own answer, namely “..it must be circumstantial”.[4]  Mr Adams agreed.  In the course of exchanges between both counsel and the Bench, and in response to Mr Adams’ observation that the hearing was proceeding “like a section 16 application”, Mr Marash informed the judge that was the application he wished to make now.[5]

4. Although a Pre-Trial Review had been conducted on 14 June 2013, the prosecution served voluminous Additional Evidence, comprising 452 pages of statements and documentary exhibits, on 5 and 9 August 2013.  Much of that material comprised certified versions of the transcript of the video record of interview.  However, it also included witness statements of five new witnesses, including those of three members of staff of DHL and apparently connected documentary exhibits including transcripts from audiotapes of conversations held with a DHL Call Centre.

5. Further submissions ensued from both counsel in respect of the evidence to be produced by the prosecution in the prospective trial, during which Mr Adams indicated in respect of the transcripts of audiotapes of conversations held with a DHL Call Centre that it was not his “intention to produce it”.[6]  He explained that it was at the request of the respondent’s solicitors that the prosecution had obtained translations of the material, certification of which was “coming”.  He acknowledged that, perhaps, it was his mistake for serving the material as additional evidence, rather than in unused material.  For his part, Mr Marash said that he did not want it to be produced, asserting that it was inadmissible.  At the hearing the court was provided with a letter dated 27 July 2013 from the respondent’s then solicitors requesting copies of various material including the DHL audiotapes, exhibit P53.

6. Complaining that he had not been told that there would be a section 16 application, Mr Adams sought an adjournment of half an hour.[7]  Before the adjournment was granted, the judge said :[8]

“ If I may -- I mean, if my thoughts may assist counsel, I feel that it’s possible that he knew, but it is not beyond reasonable doubt. For the time being, I -- I don’t know, I mean, that because of the peculiar way of collection of the parcel, giving a false address, it may not be him who gave a false address, it may not be him who gave a false name, whatever, of the recipient, of the recipient. It might be he was instructed to do it, then he might not be in the know. Is there -- is that sort of thing. But, but, I’m not supposed to be a fact-finder in these sorts of proceedings.” [Italics added.]

Then, Mr Adams provided the court with the judgment of the court in HKSAR v Mohammed Saleem [9].

7. After the adjournment, counsel made further suggestions as to the strength of the prosecution evidence.  For his part, for the first time the judge referred to the provisions of section 16, noting that the issue was whether or not the evidence served by the prosecution on the defendant “is insufficient to establish a prima facie case”.  In that context, he said that was not the test suggested by Mr Marash, namely “that no reasonable man could draw an irresistible inference of knowledge against the defendant”.[10] For his part, Mr Marash referred the judge to the Advice of the Privy Council in the Queen v Kwan Ping Pong [11], which he suggested was relevant to circumstances in which there was no direct evidence that the respondent “knew there were dangerous drugs in the packet”.[12]  However, he was unable to provide the court with a copy of the judgment, rather he merely provided details of where he thought it was reported.  Mr Marash posed the rhetorical question : “Is it an inference that a reasonable jury could draw, on the facts?” [13]  Finally, in passing he said : [14]

“ The prima facie test is stated in all those cases that you remember of, I think Ronald Li and so on, could a reasonable jury, properly directed be satisfied beyond reasonable doubt.”

However, none of those cases were provided to the judge by counsel.

8. Having adjourned shortly after noon, the judge gave his ruling shortly after 2:30 p.m.  Having set out the Particulars of the count, the judge said :

“ The prosecution’s case is very simple. In the small hours of that day, at the DHL Express Centre, Airport Customs Examination Compound, an air parcel from Panama was found to contain a suspected dangerous drug, cocaine, the nature and quantity of which were later verified as that (sic) set out in the indictment. In the afternoon, two Customs officers were disguised as DHL couriers to deliver the parcel.

At the entrance to the building of the addressee’s address, the defendant approached the Customs officers to collect the parcel. After he signed the document for acknowledging receipt, he was arrested. Both the prosecution and the defence accept that there is no direct evidence of knowledge on the part of the defendant that the parcel he was about to collect contained a dangerous drug.

Mr Marash SC, for the defendant, argues that there is insufficient evidence for me to leave to the jury to consider whether they can draw an only reasonable inference that the defendant knew that what he was about to collect contained a dangerous drug. On the other hand, Mr Adams for the prosecution, has directed my attention to various facets of the prosecution evidence to prove that knowledge.

He refers to the circumstances surrounding the collection of the parcel by the defendant, which he describes as “peculiar”; (a) it was the defendant who had called DHL to inquire about the time of delivery of the parcel and the procedure for receiving it; (b) the defendant told the Customs officers his name was that of the recipient stated in the way bill, in the course of attempting to collect the parcel. That was an untruth; (c) the large value of the cocaine which was estimated to be worth over $1.3 million; (d) the parcel was from Panama, a place which could indicate that it contained dangerous drugs; (e) when the Customs officer told the defendant to go to the entrance to the building to sign the document for acknowledging receipt of the parcel, the defendant mentioned that there was a CCTV.

This would enable the jury to infer that he was trying to avoid his identity being recorded by the CCTV. After arrest, Customs Officer 98201 cautioned the defendant. The defendant said that he was collecting the parcel for a person, Ah Sam, but he denied knowledge that the parcel contained a dangerous drug. He appeared to be cooperative when asked to assist in telephoning the person whom he was supposed to call after receiving the parcel.

Later, the defendant also voluntarily participated in a video-recorded interview which was conducted throughout in the presence of a lawyer employed for him by his mother. In that interview, again, the defendant denied knowledge of any dangerous drug. He again appeared to be cooperative, and told the same story, that he was asked by Ah Sam to collect the parcel for the reward of $500 and he had quite recently before collected parcels from DHL for Ah Sam.

Mr Marash submits that in the context of all of the prosecution evidence, there’s no case to be left to the jury because the jury cannot be asked properly to consider that the only reasonable inference that can be drawn from the prosecution evidence is that the defendant knew that the parcel he was about to collect contained any dangerous drug. He submits that the circumstances and evidence mentioned by Mr Adams could, to put it at the highest, only enable the jury to draw the only reasonable inference, if at all, that the defendant knew that the parcel might contain something illegal, which could be things like pornography of parts of endangered species.

But that would not be sufficient to enable the jury to draw the only reasonable inference that the defendant knew that the parcel contained a dangerous drug. Without this knowledge of any dangerous drug, the jury could not possibly convict. Mr Adams refers me to HKSAR v Mohammad Saleem CACC 323/2007, decided on 26 September 2008, unreported.

In that case, the court quashed a conviction against the appellant on the basis that the answers to the questions of the jury, after they had been sent out to consider their verdict, given by the trial judge, were erroneous in the onus and standard of proof, and that the appellant should not have been charged with the substantive offence of trafficking in a dangerous drug, instead of an attempt to do so.

As mentioned in the reasons for judgment, the facts appear quite similar to those of the case before me. However, Mr Marash asked me not to compare the facts of cases as it might be dangerous to do so, that there is no mention in the reasons for judgment that counsel for the parties had addressed the court on the facts and that the court might have been apprised of some facts that were not specifically referred to.

My concern is that while I’m quite sure that there cannot be an only reasonable inference to be drawn from the evidence that the defendant knew the parcel contained a dangerous drug, there may be a prima facie case to be left to the jury. What impresses me in favour of the defence is that the prosecution cannot pinpoint anything said by the defendant upon arrest, and later in the VRI, was untrue, or as would support an irresistible inference of his knowledge of a dangerous drug.

Nothing more can possibly be added to the evidence, as Mr Adams has summed up, to support an only reasonable inference of that guilty knowledge. In the result, I consider that it would be futile to proceed with this case and leave it to the jury to come to a conclusion which they are not properly entitled to arrive at.

Accordingly, I stop the case here now and discharge the defendant.”  [Italics added.]

The evidence disclosed by the prosecution 

9. The evidence disclosed by the prosecution by the time of the hearing on 12 August 2013, established that in the early hours of 17 July 2012, a DHL parcel described as ‘Documents/Ladies Sample Sandal’, sent from Panama and addressed to Chan Fu Hua at 3/F, Haixing Building, 15-17 Hard (sic) Avenue, Tsim Sha Tsui, Hong Kong arrived in Hong Kong.  There, it was intercepted by Officers of the Customs & Excise Department.  The contact person was described on the parcel as Chan Fu Hua, at a contact number of 9784 6151. An examination of the parcel by Customs & Excise officers revealed the presence of four packets of cocaine concealed in the inner layers of two document binders.  Based on the average retail price per gram for the sale of cocaine in Hong Kong in July 2012, the value of the cocaine was estimated to be HK$1,306,880. [15]

10. A controlled delivery operation was conducted.  At 4:18 pm on that day Customs Officer Lee Ka Ki, CO 98201, posing as a member of DHL’s staff, called the telephone number of the consignee, 9784 6151.  He used a telephone with the number 5160 5361.  The call was answered and a conversation ensued.  In a video recorded interview of the respondent made in the afternoon of 18 July 2012, the respondent said that he had participated in such a telephone conversation.  Customs Officer Lee said that the dialogue was :[16]

CO 98201 : Hello this is DHL making a delivery.  Are you Chan Fu Hau?  Is there anyone at the pickup address of 3/F, Haixin Building, Hart Avenue, Tsim Sha Tsui to receive the goods?

Respondent : Yep.  I arranged (the delivery) at 4 o’clock. What kept you?

CO 98201 : Sorry.  Will arrive in 15 to 20 minutes.  Is there anyone in the unit to receive the goods?

Respondent : I am in a hurry.  Could you make it sooner?  Where are you?  I can come to you.

CO 98201 : Sorry, but the company requires that the delivery be made to the pick-up address for receipt acknowledgement.  You had better wait up there.

Respondent : I have already left.  (If I) go back I will have to unlock and de-activate the anti-burglar (alarm) and all that.  Why don’t you tell me where you are and I come to you.

CO 98201 : Huh, I am new to the job.  In that way it would kind of make things difficult for me.  I am afraid I will lose my job.

Respondent : Don’t worry.  I used to receive deliveries like this before.

CO 98001 : In that way, I will arrive in 15 minutes.

Respondent : Call me when you’re in the neighbourhood. I will wait for you downstairs.

11. At around 4:35 pm, Customs Officers Lee and Tsang Wai Kei, disguised as DHL staff members, arrived outside Haixing Building, where the respondent approached them and a conversation ensued :[17]

Respondent : Are you delivering stuff up to the 3rd floor?

CO 98201 : You are Mr Chan?

Respondent : Yes.

CO 98201 : Please show (your) identity card for the checking of the particulars.

Respondent : Not with me.  Goods are being received in front.  (I) normally receive (deliveries) in this way.

CO 98201 : The company requires that the goods recipient be confirm (ed) first.

Respondent : You call the good recipient’s phone number.  It will do if my phone rings.

12. Then, Customs Officer Lee rang the contact number on the parcel, namely 9784 6151.  The respondent showed them his mobile phone, which was ringing.  Customs Officer Tsang showed the parcel to the respondent, whilst Customs Officer Lee gave the acknowledgement receipt to the respondent and a short conversation ensued :[18]

CO 98201 : Let’s walk a couple of steps to the building entrance for the receipt acknowledgement.

Respondent : But there is a CCTV.

CO 98201 : No big deal.

13. Nevertheless, the respondent walked to the building entrance and signed the receipt above the name Chan Fu Hua.[19]  As he was about to take the parcel from Customs Officer Tsang, Customs Officer Lee revealed his identity as a Customs & Excise officer, showing him his warrant card, and informed him that he suspected that the parcel, receipt for which the respondent had signed, contained cocaine.  Then, after he had arrested the respondent and administered words of caution to him the respondent had indicated that he understood.  In answer to his request that the respondent produce his Hong Kong identity card, the respondent produced an identity card in the name Ng Siu Lun.  Customs Officer Lee said that having searched the respondent a further dialogue ensued between them :[20]

CO 98201 : Whose parcel is it?

Respondent : It’s not mine.  I received it for someone else.

CO 98201 : Who did (you) receive (it) for?

Respondent : For Ah Sam.

CO 98201 : What is Ah Sam’s name?  How to find him?

Respondent : I don’t know his full name. (I) only know that (he) is called Ah Sam.  I only have his name and phone (number).  Ah Sam hired me to receive good for him for $200 a day.

CO 98201 : After receiving this piece of goods, what would you do?

Respondent : Ah Sam asked me to bring up the goods recipient.  The guy would tell me what to do.  I received two pieces of goods yesterday.

[The officer noted that the respondent took out his phone and said he would dial that telephone number.]

CO 98201 : Any idea what’s in the parcel?

Respondent : No.

CO 98201 : are you willing to cooperate with a Customs in a controlled delivery operation and deliver the parcel to the goods recipient?

Respondent : Couldn’t be better.  It has nothing to do with me.

14. Customs Officer Lee said that the respondent then called the number 5617 2491 several times, but no one answered. [21]

15. Subsequently, when a written post-record was made by the officer of the events, including that dialogue, the respondent made two amendments, including asserting that the payment he was promised was $500 rather than $200. [22]

16. In a lengthy video-recorded interview conducted of the respondent on 18 July 2012, the respondent asserted that :

· he had been living in the Mainland where he became acquainted with Sam, whom he had known for about six months;

· on the day before his arrest, Sam telephoned him at some time after 1:00 a.m. and asked him to collect a parcel the following day; [23]

· between noon and 1:00 p.m. he met Sam at a restaurant in Shenzhen and was given details of how and where to collect the parcel and provided with three mobile telephone SIM cards; [24]

· he was told to use one of those SIM cards, with the telephone number 9784 6151, to call DHL to enquire when delivery of the parcel would be made; [25]

· then, he travelled to Hong Kong and, having located Hai Xin Building, on instructions by telephone from Sam he telephoned DHL to enquire about the delivery and was told that the delivery would be made within 15 minutes; [26] he called DHL at the number 2440 3388 on the Nokia mobile telephone; [27] the respondent said that, in one of several telephone calls made to him whilst he was in Hong Kong by Sam, he was given a telephone number and told to contact that person after he had collected the goods; he called that number after his arrest when cooperating with the Customs & Excise officers; [28]

· the respondent acknowledged, by reference to the ‘Call’ record on the Nokia telephone that he called the DHL number 2440 3388 at 16:09 and received telephone calls at 16:18 and 16:38 from a telephone with the number 5160 5361, namely that used by Customs Officer Lee; [29]

· Sam told the respondent that this parcel contained some cloth samples and he had no knowledge of the actual contents of this parcel; [30]

17. The respondent said that he had collected parcels for Sam on three occasions, of which the occasion of his arrest was the third.  On the first occasion, the goods were some cloth samples which he delivered to a hotel, leaving it at the reception.  On the second occasion, he collected two parcels containing dancing mats used for computer games, which he delivered to Shenzhen.

18. The owner, Wu Sai Kwan [31], and the tenant, Cheng Pak Lun, [32] of the premises at 3/F, Haixing Building, 15-17 Hart Avenue, Tsim Sha Tsui, Hong Kong said that they did not know a person called Chan Fu Hua or the respondent.  Neither had knowledge of or consented to the package being sent to the premises.

19. Records of the Immigration Department, addressed by an Immigration officer, evidenced the fact that the respondent left Hong Kong through the Lok Ma Chau border crossing to the Mainland at 13:18 on 16 July 2012 and returned to Hong Kong at 14:00 on 17 July 2012. [33]

The appellant’s submissions

20. Mr Leung submitted that the judge had applied the wrong test in granting the application in stating that “there cannot be an only reasonable inference to be drawn from the evidence that the defendant knew the parcel contained a dangerous drug” but also finding that “there may be a prima facie case to be left to the jury”. [34]  He submitted that the issue was not what the judge thinks at the time of the discharge application, but what a jury “could, may or might” properly conclude in the future.[35]  Further, he said that the judge had erred in engaging in an assessment of the quality of the evidence.  To do so was to usurp the function of the jury. [36]

21. Then, it was contended that in assessing whether there is a prima facie case in circumstantial cases, a judge should decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution.  There is no case to answer only if, after all the inferences are reasonably open most favourable to the prosecution on the evidence led by them were accepted, a reasonable mind could not exclude all hypotheses consistent with innocence. [37]

22. Finally, it was submitted that, having regard to those propositions of law, there was sufficient circumstantial evidence for the matter to be left to the jury to determine whether or not to infer that the respondent had knowledge of drugs inside the parcel :

• The respondent lied to Customs Officer Lee that :

(1) he had access to the premises by suggesting that he would leave the premises soon;

(2) he was the recipient of the parcel, namely Mr Chan; and

(3) he did not carry his identity card with him.

• Although the parcel was to be delivered to 3/F of the building, neither the owner nor the tenant knew of or consented to the delivery.  The respondent would have great difficulty in accepting the parcel at the premises. 

• The respondent was to receive a reward of $500 and, on instructions, was to deliver the parcel to another person.  That, gave rise to grave suspicion as to the legality of its contents.

• The respondent’s initial reluctance to go to the entrance of the building where there was CCTV, strengthened the prosecution case.

• Given that the dangerous drugs were worth $1.3 million, common sense suggested that it must be comparatively rare for a drug dealer to entrust a valuable parcel of drugs to an unwitting, innocent person. 

23. In his oral submissions, Mr Leung withdrew the invitation made to the court in his written submissions to rely on the evidence of audio recordings and related transcripts of conversations held with the DHL Call Centre in respect of the progress of the delivery of the parcel, acknowledging that not only had Mr Adams informed the court that he did not intend producing that evidence but also as presented to the court there were obvious deficiencies in its admissibility.

A CONSIDERATION OF THE SUBMISSIONS

24. As noted earlier, the application for discharge was made in complete disregard of the provisions of the Criminal Procedure (Applications Under Section 16) Rules.  Indeed, neither counsel nor the judge even adverted to the existence of the Rules.  The Rules provide that, subject to any direction which the Registrar might give to the contrary, a Notice of application is to be made not less than 14 days before the date of the hearing. [38]  Also, the Rules require that the grounds of upon which it is “alleged that no prima facie case is disclosed” is “particularised in full”. [39]  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.

25. It is most regrettable that none of the well-known cases most relevant to the issue with which the judge was concerned were cited to the judge.  Perhaps, that arose out of the ad hoc manner in which the application was born and the argument conducted.  In the result, as is evident from the transcript of the hearing on 12 August 2013, counsel were not properly prepared to advance and support their arguments and to assist the court by reference to relevant authorities.  The application was a most significant step in what were very serious criminal proceedings.  With respect, it ought not to have been permitted to proceed in the manner in which it did.  In the Attorney General v Ng Yuk Tung [40], to which reference was made earlier, in quashing an order of discharge made pursuant to section 16 and ordering that a trial proceed, this Court expressed regret that the procedure adopted at trial was “wholly inconsistent with the rules” governing such an application :

“ Had the rules being observed, rather than the almost summary procedure adopted in this case, it may be that reference to authority would have led the judge to come to another view.”

The Law

26. The law relevant to the proper approach to an application for discharge pursuant to section 16 of the Ordinance is summarised succinctly in the judgment of this Court delivered by Stock VP in the Secretary for Justice v Tang Sau Ling [41] :

“ The appropriate approach to section 16 applications may usefully be gleaned from the judgment of Silke VP in Attorney General v Phung Van Toan [42], adopting [43] for the purpose of section 16, the test applied by Kempster JA in Attorney General v Li Fook Shiu Ronald [44] 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 [45].  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.”[46] ”

27. In the Attorney General v Li Fook Shiu,Ronald [47] this Court allowed the appeal of the Attorney General, in respect of an order of discharge made pursuant to section 22(1) of the Complex Commercial Crimes Ordinance, Cap. 394 in respect of two counts on the indictment.  Kempster JA said in the judgment of the court : [48]

“It was orally submitted by Mr Denny to us and, we believe, to Ryan J that at the submission or application stage the trial should be allowed to continue only if the judge is himself then satisfied that any inference critical to the prosecution case is the only one which could be drawn from the primary facts. In other words he must at this stage direct himself in the way he might, if the trial proceeded, direct the jury as suggested by Lord Diplock in Kwan Ping Bong v R [1979] HKLR 1 at pp 5 and 6 and be satisfied beyond all reasonable doubt that the inference is right.”

28. Having reviewed various authorities, [49] Kempster JA concluded :[50]

“These authorities seem to us to show that in his oral submissions, which Ryan J may have accepted, Mr Denny over stated the obligations of the judge.  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.  Both can critically be affected by later evidence or 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.”

29. In the Director of Public Prosecutions v Varlack the prosecution appealed the determination of the Eastern Caribbean Court of Appeal quashing the conviction of the defendant of murder on the basis that the judge had erred in rejecting a submission of ‘no case to answer’ at the close of the prosecution case.  The prosecution case against the respondent was circumstantial, being based largely on the evidence of telephone calls made between the defendants from which the prosecution sought to draw the inference that she knew of and agreed to a plan to kill the deceased.

30. In the Advice of the Privy Council delivered by Lord Carswell, the authorities relevant to the issue of the proper approach to be taken to a submission on no case to answer were addressed.  Having said that the “canonical statement of law” was to be found in the judgment of Lord Lane CJ in R v Galbraith [51] Lord Carswell cited the judgment of King CJ in the Supreme Court of South Australia in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 as being an accurate statement of the law :

“ It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence arc reasonably open on the evidence … He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reaonab1e doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence…

I would re-state the principles, in summary form, as follows.  If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be.  If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer.  There is no case to answer only if the evidence is not capable in law of supporting a conviction.  In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”

31. Lord Carswell went on to cite with approval a passage from the judgment of the Court of Appeal of England and Wales, Criminal Division delivered by Moses LJ in R v Jabber : [52]

“ The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude.” [Italics added.]

32. The only authority to which the judge referred in his Ruling was the authority handed to him by Mr Adams at the hearing, namely HKSAR v Mohammed Saleem.  The judge noted, in effect, that it was of no relevance to the issues canvassed in the application.  In that case, there was a factual similarity with the instant case, in that the appellant had been arrested during a controlled delivery of a bag containing dangerous drugs that earlier had been intercepted by Customs & Excise officers.  The appellant had been arrested before he had taken physical delivery of the bag.  He had been convicted at trial on an indictment alleging that he had unlawfully trafficked in the dangerous drugs.  As the judge noted in his Ruling, [53] this Court determined, inter alia, that :

“ the appellant should not have been charged with the substantive offence of trafficking in a dangerous drug, instead of an attempt to do so.”

With respect, the judge was entirely right to regard the authority as of no relevance to the issues he had to determine.

33. With respect, the judge’s candid analysis in his Ruling exposed the fundamental flaws in his reasoning : [54]

“ My concern is that while I’m quite sure that there cannot be an only reasonable inference to be drawn from the evidence that the defendant knew the parcel contained a dangerous drug, there may be a prima facie case to be left to the jury. What impresses me in favour of the defence is that the prosecution cannot pinpoint anything said by the defendant upon arrest, and later in the VRI, was untrue, or as would support an irresistible inference of his knowledge of a dangerous drug.”

34. Obviously, in making those statements the judge strayed outside the province of a judge into that of the jury.  He was required to determine only whether or not, on the evidence disclosed by the prosecution to the court, there was a prima facie case, nothing else.  As this Court said in Attorney General v Li Fook Shiu Ronald : [55]

“ 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 [56]. 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.”

35. Further, the judge adopted a wholly impermissible approach to the out-of-court assertions of the respondent.  It is to be remembered that not a word of evidence had been led, because the trial had not even begun.  The statements made by the respondent were ‘mixed’ statements.  The weight to be attached to the out-of-court statements of the respondent, including his exculpatory statements, was entirely a matter for the jury in the context of the evidence led at the trial.  Evidence might be led in the defence case.  The jury would receive the standard direction as to their approach to the weight to be given to the inculpatory statements, in contrast to the exculpatory statements of the respondent. [57]  It was not a matter for the judge to determine at all.  Most certainly, the prosecution was not required to demonstrate the untruth of those assertions to the judge in advance of trial.

36. We are satisfied that the judge erred in determining that the evidence disclosed by the prosecution did not establish a prima facie case against the respondent on the charge he faced on the indictment.  Clearly, the single issue was the respondent’s knowledge of the dangerous drugs in the parcel.  As counsel for the respondent pointed out, in attempting to collect the parcel of dangerous drugs the respondent lied to the Customs officer as to his identity, his connection with the premises and as to his possession of an identity card.  Also, it is to be noted that the signature that he appended to the receipt was wholly different from the signature in his own name that he placed on the Notice to Persons in Custody [58] and on the written post-record of the circumstances of his arrest [59].  The fact that the dangerous drugs were worth $1.3 million was relevant to that conduct, as was his account that he acted for reward and having collected the parcel he was to deliver it to a person to be contacted by telephone.

Conclusion

37. For those reasons we were satisfied the judge erred in discharging the respondent and that there was a prima facie case established on the evidence disclosed by the prosecution against the respondent on the count on the indictment.  Accordingly, we quashed the order of acquittal, ordered a trial of the applicant on the indictment and issued a warrant for his arrest.

38. In passing we note that there is an obvious lacuna in the legislation.  Having been discharged and acquitted, as was his right, the respondent left Hong Kong on 16 August 2013 and has not returned in the period of more than a year that has elapsed.  The offence alleged against the respondent is very serious.  Whether or not his attendance at a future trial will be secured is a moot point.  It may be that in those circumstances, consideration might be given to enacting legislation that would permit an application to be made for the suspension of the effect of a judge’s order of discharge, on appropriate terms, pending an expedited appeal by the Secretary for Justice.

[1] “Where the accused was committed for trial…………… the accused may at any time-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) or….. as read with any further evidence the Secretary of 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 any other offence for which he might be convicted upon that charge.”

[2] See the Attorney General v Ng Yuk Tung (CACC 558/1991; unreported, 16 November 1992) at page 4.

[3] Appeal Bundle, page 10 O.

[4] Appeal Bundle, page 11.

[5] Appeal Bundle, page 14 Q-S.

[6] Appeal Bundle, page 23 K.

[7] Appeal Bundle, page 26 L.

[8] Appeal Bundle, page 32 M-Q.

[9] HKSAR v Mohammed Saleem (CACC 323/2007; unreported, 26 September 2008).

[10] Appeal Bundle, page 37 G-I.

[11] The Queen v Kwan Ping Pong.

[12] Appeal Bundle, page 39 E.

[13] Appeal Bundle, page 39 S.

[14] Appeal Bundle, page 39 Q-S.

[15] Appeal Bundle, page 231.

[16] Appeal Bundle, page 71-2.

[17] Appeal Bundle, page 73-4.

[18] Appeal Bundle, page 74.

[19] Exhibit P19.

[20] Appeal Bundle, page 75; Appeal Bundle, page 77.

[21] Appeal Bundle, page 77.

[22] Appeal Bundle, page 761-7.

[23] Video record of interview; counters 105-114.

[24] Video record of interview; counters 128-136, 152.

[25] Video record of interview; counters 163-170.

[26] Video record of interview; counters 172 -185, 188 and 233-5.

[27] Video record of interview; counters 193-208.

[28] Video record of interview; counters 250-261.

[29] Video record of interview; counters 284-299.

[30] Video record of interview; counters 1210-1217.

[31] Appeal Bundle, pages 722-3.

[32] Appeal bundle, pages 740-2.

[33] Appeal Bundle, pages 240-2.

[34] Appeal Bundle, page 54 E-G.

[35] AG v Li Fook Shiu Ronald [1990] 1 HKC 1 at 12 I.

[36] AG v Phung Van Toan and others [1992] 1 HKCLR 56 at 63 line 5; and SJ v Tang Sau Ling [2013] 2 HKLRD 174 paragraph 19.

[37] DPP v Varlack [2009] 4 LRC 392 at 401 h - 402 d; [2008] UKPC 56.

[38]  Rule 5 of the Criminal Procedure (Applications Under Section 16) Rules, Cap. 221.

[39]  Rule 4 of the Criminal Procedure (Applications Under Section 16) Rules, Cap. 221.

[40]  Attorney General v Ng Yuk Tung at page 7.

[41]  Secretary for Justice v Tang Sau Ling [2013] 2 HKLRD 174; page 181-182, paragraphs 19 and 20.

[42]  [1992] 1 HKCLR 56.

[43] At pp 62-63.

[44] [1990] 1 HKC 1 at 12 H.

[45]  R v Galbraith [1981] 1 WLR 1039.

[46] at 63.

[47] Attorney General v Li Fook Shiu, Ronald [1990] 1 HKC 1.

[48] Attorney General v Li Fook Shiu, Ronald, page 10 E-G.

[49] Haw Tua Tau v Public Prosecutor [1982] AC 136; R v Governor of Pentonville Prison, ex parte Tarling (1978) Cr App R 77; Metropolitan Railway Co v Jackson [1877] 3 App Cas; and R v Laverty (1970) 54 Cr App R 495.

[50] Attorney General v Li Fook Shiu, Ronald, page 12 G-I.

[51] R v Galbraith [1981] 1 WLR 1039, 1042.

[52] R v Jabber [2006] EWCA Crim 2694.

[53] Appeal Bundle, page 53 S-U.

[54] Appeal Bundle, page 54 E-H.

[55]  [1990] 1 HKC 1 at 12 H.

[56] R v Galbraith [1981] 1 WLR 1039.

[57] Specimen Direction 40.1; ‘Specimen Directions in Jury Trials’ issued by the Judicial Institute.

[58] Appeal Bundle, page 308.

[59] Appeal Bundle, pages 309-310.