HKSAR v. CHAN YIU SHING AND OTHERS

(Ruling 17)

HCCC 41/2016

[2018] HKCFI 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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RULING ON NO CASE TO ANSWER

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1.  Each counsel for the five defendants, has made an application upon the close of the prosecution case that there is no case to answer in relation to the defendant concerned.

The legal principles

2.  The principles governing the issue of whether or not there is a case to answer are set out in R v Galbraith (1981) 73 Cr App R 124, where Lord Lane CJ said at 127:

“(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty – the judge will 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 concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on 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 on which the 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.”

3.  In the case of AG v Li Fook Shiu Ronald [1990] 1 HKC 1 the Court of Appeal addressed the issue of the applicable test when dealing with both primary facts and inferences to be drawn from such facts.  The Court stated that when dealing with primary facts and inferences to be drawn from such facts, the judge is not concerned 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.

4.  The Court observed that a judge faced with a submission of “no case” or an application for discharge in circumstances where the prosecution case depends upon an inference or inferences from primary facts, may ask himself: (a) was there some evidence that the crime had been committed?  If not, the judge would rule no case or discharge the count in question.  If there was, (b) was the evidence of primary facts of a quality permitting a jury to accept it?  If not, the judge would stop the case or discharge the count.  But if such evidence was of appropriate quality, (c) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case were to be established?  If he concluded that a jury could, may or might so be satisfied, he would rule against the submission or application. 

5.  Mr Jonathan Man, for the prosecution, also directs my attention to the summary of principles in relation to a case to answer as encapsulated by King CJ in Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323 at 327:

“… 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.”

The prosecution case

6.  Briefly stated the prosecution case is that the five defendants have conspired together between 28 May and 14 June 2015 to make explosive substances, namely a mixture of nitrate salts, producing a pyrotechnic effect (Count 1), and that each of D1, D2 and D3 on 14 June 2015 variously possessed certain explosive substances (Counts 2, 3, 4 and 5). 

7.  The relevant offence provision is found in section 55 of the Crimes Ordinance, Cap 200, (the CO), which reads:

“55. Making or possession of explosive

(1) Any person who makes an explosive substance or, whether or not he knows it to be an explosive substance, knowingly has in his possession or custody or under his control anything which is an explosive substance shall, unless he can show that he made it or has it in his possession or custody or under his control for a lawful object, be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years, and the explosive substance shall be forfeited.

(2) Where in any prosecution for an offence under subsection (1) it is proved that the accused knowingly had in his possession or custody or under his control anything whatsoever, other than premises, containing any explosive substance, then, unless the accused can show that he had reasonable grounds for believing that the thing did not contain anything or contained only something other than an explosive substance, he shall be presumed knowingly to have had in his possession or custody or under his control the explosive substance contained in that thing.

(3) No prosecution for an offence under subsection (1) shall be instituted without the consent of the Secretary for Justice.”

8.  The evidence presented by the prosecution mainly consists of surveillance of the defendants and of the substances and items seized by police officers as well as expert opinion on aspects of this evidence.

9.  The 5 defendants were observed gathering together outside D1’s residence in the evening of 27 May 2015.  They then go to a McDonald’s restaurant and return later in the early hours of 28 May 2015 at the same location.  D1 goes into the building of his residence and returns with a blue cooler box.  D1, carrying the box, leaves together with D4 and D5 and they take a minibus to Sai Kung.  D2 and D3 leave separately on D2’s motorcycle.  Later, D1, D4 and D5 are seen scaling a wall and entering the site of the abandoned ATV building.  Police officers observe flashes and smoke at the top of the ATV building at 2:17 am, 2:21 am and 2:26 am.  Police officers also observed D2 leaving the site at about 2:42 am.  He is observed making a phone call and appears to be chatting before leaving on his motorcycle.  The phone call records of D2 show a call to D3’s phone at 2:49 am, as well as calls with D4 during this period.

10.  The prosecution case is that the blue cooler box taken to the ATV building by D1 on 28 May 2015 was left there.  It is their case that the box was later used by D2 and D3 and retrieved on 14 June 2015. The box is exhibit P714.

11.  A little after 6 pm, on 14 June 2015, D2 and D3 are observed entering the ATV building.  Soon after they are seen on the rooftop and appear to be mixing and putting substances into 2 bottles.  They had with them a box similar in appearance to exhibit P714.  They leave with the box.  At about 7:24 pm, a police officer observes white smoke bellowing from a window on the top floor which rose as high as 3 to 4 stories.  As D2 and D3 leave the building they are arrested by police officers.  Police officers locate a blue cooler box, exhibit P714, behind a staircase on the ground level.  Inside the box police officers find nitrate salts and sugar.  Inside the cistern of a toilet on the ground level a McDonald’s cup is retrieved which is found to contain a mixture of nitrate salts that when ignited emitted smoke.  Various substances and items were found in the possession of D2 and D3 at the time of their arrest, and later at the homes of D1 and D3.

12.  Put simply, the issue in this case centres on whether the defendants agreed to make, and whether the defendants concerned possessed, certain explosive substances.  There was presented as part of the prosecution case, the expert evidence of two bomb disposal officers and a government chemist in relation to the observations of the surveillance officers concerning the events on 28 May and 14 June 2015, and the substances and items seized by the police officers. 

The challenge to the definition and offence provisions

13.  The principal submission of the defendants comes from Mr Douglas Kwok, for D2, who mounts a legal argument on the meaning of “explosive substance”, and in the alternative, a constitutional argument as to the validity of section 55 of the CO on the basis that it violated the presumption of innocence and the right to a fair trial, under Article 11 of the Hong Kong Bill of Rights. 

14.  There have been numerous pre-trial hearings as well as numerous opportunities during the course of these proceedings for a submission of this type to be brought before the Court, and dealt with well before this very late stage.  The prosecution and the Court were only given notice of this application at the close of the prosecution case when a detailed written submission together with a large volume of materials and authorities were submitted.  As far as I am concerned, the essence of the legal argument contained in the submission could have been made, and should have been, prior to the commencement of the trial and dealt with as a preliminary question of law as provided for under Practice Direction 9.3.

The legal argument

15.  Mr Kwok’s main argument is that the prosecution have relied on a meaning of explosive substance by adopting the definition under the Dangerous Goods Ordinance, Cap 295, (the DGO), which does not include the substances they have particularised in the counts as being explosive substances.

16.  Under section 2 of the DGO, ““explosive” includes any substance used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect”.  He argues that whilst it was appropriate for the prosecution to apply this definition in the context of section 55 of the CO, by doing so the prosecution also had to apply the entire scheme under the DGO as to the classification of dangerous goods.  He advances his argument along the lines that the DGO under section 2 provides that the Ordinance includes regulations made under section 5 and therefore Regulation 3 concerning the classification of a dangerous good provides a schedule of substances and articles to which the Ordinance would apply, otherwise if it is not listed, it would be exempt.  

17.  Mr Man points out that “dangerous goods” is separately defined and “means any of the goods or substances to which this Ordinance applies under section 3.”  In turn, section 3 reads:

“This Ordinance shall apply to all explosives, compressed gases, petroleum and other substances giving off inflammable vapours, substances giving off poisonous gas or vapour, corrosive substances, substances which become dangerous by interaction with water or air, substances liable to spontaneous combustion or of a readily combustible nature, radioactive material and to such substances to which it is applied by the Chief Executive in Council under section 5 …”

18.  Mr Man submits that section 3 provides that in addition to “explosives, compressed gases, petroleum and other substances …”, there is a category of substances to which the Ordinance is applied by the Chief Executive in Council under section 5.  Section 5 is the regulation making provision by the Chief Executive in Council.  He argues that the regulations made under section 5 do not impact on the other categories, including explosives.

19.  The Dangerous Goods (Application and Exemption) Regulations, Cap 295A, provide a classification of dangerous goods as specified in the schedule to which the DGO shall apply.  It is by reference to the substances and articles as listed under the categories of the Schedule to the Regulations that Mr Kwok argues that the substances as particularised in the counts are not listed or described under the Schedule and therefore exempted from the definition. 

20.  The short answer to Mr Kwok’s submission is that the DGO establishes a licensing system for the control of dangerous goods and that the Regulations concerning the categorisation and the listing of substances and articles under the Schedule is for that purpose.  As pointed out by Mr Man, there is a distinction between definitions provided and the regulatory regime established under the Ordinance.

21.  Furthermore, it should be noted that the offences under section 55 are found in Part VII of the CO where section 52 provides that the expression “explosive substance”:

“… shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement.”

22.  Whilst the expression “explosive” is not defined in Part VII, it is provided under section 2 of the Dangerous Goods Ordinance, Cap 295, (DGO), that the expression:

“… includes any substance used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect;”

23.  As the relevant legislative provisions in Hong Kong are primarily modelled on English legislation, it is worthwhile examining how the English courts have dealt with their provisions. 

24.  The definition under section 52 of “explosive substance” is exactly the same as the definition in the Explosive Substances Act 1883.  As “explosive” was not defined in that legislation, recourse was taken to the definition of “explosive” in section 3 of the Explosives Act 1875 which reads:

“This Act shall apply to gunpowder and other explosives as defined by this section. The term ‘explosive’ in this Act-(1) Means gunpowder, nitroglycerine, dynamite, gun-cotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those above mentioned or not, used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect; and (2) includes fog-signals, fireworks, fuses, rockets, percussion caps, detonators, cartridges, ammunition of all description, and every adaptation or preparation of an explosive as above defined.”

25.  It is immediately apparent that the definition of “explosive” in the DGO is essentially the definition in section 3(1) of the 1875 Act, although more broadly described as “any substance”. 

26.  The Court of Appeal decided in R v Wheatley [1979] 1 All ER 954 that the definition of “explosive” in the 1875 Act applied to the 1883 Act.  The Court stated:

“Looking at the two statutes, at the nature of the provisions which they both contain, and in particular at the short and long titles of both statutes, it appears to this court that clearly they are in pari materia, and that conclusion alone would seem to us to be sufficient to justify the conclusion which the judge reached that the definition of the word “explosive” found in the Act of 1875 is available to be adopted and applied under the provisions of the Act of 1883.”

27.  In Wheatley, a fire-dampened sodium chlorate mixture was used in a pipe bomb and was held to be an explosive substance, even though it had only a pyrotechnic effect. 

28.  In R v Bouch [1983] QB 246, the Court of Appeal examined the extract of the definition in section 3(1) and asked rhetorically what is “pyrotechnic effect”.  The Court held that “pyrotechnic effect” is not confined to a narrow definition or to fireworks as the expression goes beyond that.  The Court explained that a flare is a pyrotechnic device and that there does not have to be an explosion.  The contention that a pyrotechnic was required to explode was rejected by the Court.  The Court was satisfied that a fireball that emerges from a petrol bomb comes within the definition of pyrotechnic effect and was not dissimilar to a flare. 

29.  The Court also addressed the meaning of “explosion” and approved the following definition from the 1886 edition of the Encyclopaedia Britannica:

“… ‘explosion’ may for our purpose be defined as the sudden or extremely rapid conversion of a solid or liquid body of small bulk into gas or vapour, occupying very many times the volume of the original substance, and, in addition, highly expanded by the heat generated during the transformation. This sudden or very rapid expansion of volume is attended by an exhibition of force, more or less violent according to the constitution of the original substance and the circumstances of explosion. Any substance capable of undergoing such a change upon the application of heat, or other disturbing cause, is called ‘explosive’.”

30.  The definition of “explosive substance” under section 52 is not exhaustive and is clearly meant to be broad.  Under the common law, the courts develop the law over time, clarifying it and modifying it to meet new circumstances and conditions.  That is apparent from the way the English Court of Appeal has addressed the issue of the definition of an explosive substance in the cases of Wheatley and Bouch.  See Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381; Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386 at paras 61 and 62; and Winnie Lo v HKSAR (2012) 15 HKCFAR 16 at paras 19, 20, 75 and 76.

31.  In light of the foregoing, I consider that the definition of explosive substance is sufficiently formulated and precise by the legislative provisions and relevant case law. 

32.  I should also add that each of the experts has given expert opinion about explosive substances which is for the jury to consider and apply as they think fit in their assessment and evaluation of the evidence.  For instance, Superintendent Adam Roberts (PW34), a bomb disposal expert, in his report, exhibit P1044, attached, Chapter 2.1 “Classification of Explosives” of the Hong Kong Police Explosives Ordinance Disposal Manual which refers to the definition of explosion and pyrotechnic in the Shorter Oxford English Dictionary.  “Explosion” is defined as “the action or an act of bursting or flying into pieces with extreme violence and noise; the loud noise accompanying this.”  “Pyrotechnic” is defined as “a device or material which can be ignited to produce light, smoke, or noise.”

33.  Mr Kwok further submits that there is no chemical evidence to prove whether a mixture of nitrate salts (particularised in Count 1) and aluminium powder and iron oxide (particularised in Count 2) reacted as an oxidant or a fuel in the alleged deflagration process.  It has been explained that in general terms a deflagrating explosive is a low level explosive, that when ignited produces intense heat, without normally causing an explosion, and includes a pyrotechnic. 

34.  On this subject, Mr Kwok particularly focused on the evidence of Dr Billy Leung (PW 35) about certain chemicals and their reactions with other chemicals and whether they constituted an explosive substance as defined and understood.  However, the expert evidence of Dr Leung, and the subject of whether the substances in question were explosive substances, needs to be considered together with the other expert evidence and the evidence generally.

The constitutional argument

35.  Mr Kwok’s alternative constitutional argument is that if the meaning of “explosive substance” does not adopt the definition under section 2 of the DGO, then there is an unjustifiable derogation of the presumption of innocence and the right to fair trial guaranteed under Article 11 of the Hong Kong Bill of Rights. 

36.  As I understand his argument, Mr Kwok contends that the meaning of “explosive substance” requires a “finished explosive substance” and that the reverse onus under section 55(2) will need to be invoked for a defendant to prove that he had reasonable grounds for believing that he possessed something other than an explosive substance.  This he submits involves proving a negative.  He further contends that proving the negative will become much more onerous if the scope of an explosive substance is extended by including substances “capable of producing” a pyrotechnic effect.  This he submits results in an unknown standard because the Explosive Disposal Ordinance Bureau does not publish a definition of what constitutes “capable of producing” a pyrotechnic effect.  He submits therefore that the onus on a defendant is not capable of being discharge because it involves proving a negative and dealing with an unknown standard.

37.  There is no substance to this submission.  It is not supported by authority or clear argument.  In any event, the prosecution are not relying on the reverse onus as set out in section 55(2). 

The “without lawful object” argument

38.  Mr Kwok finally submits that in relation to Count 1 the prosecution have failed to prove that the conspiracy “must be without a lawful object”.  He refers to HKSAR v Chan Chi Wan Stephen (2017) 20 HKCFAR 98.  He argues that there is no evidence against D2 that the conspiracy was to make the alleged explosive substances without any lawful objects.  I do not agree.  There is sufficient evidence for the jury to address this issue. 

The other submissions

39.  Mr Randy Shek, for D1, in oral submissions relied on the written submission of Mr Thomas Iu, for D4.  The principal focus of his submissions was to question the evidence of the police officers, in particular PW3 and PW4, as to their observations on the evening of 28 May 2015, and the evidence of the experts in relation to those observations. 

40.  Mr John Haynes, for D3, made no oral submissions and merely relied on the legal arguments submitted by Mr Kwok. 

41.  Mr Thomas Iu, for D4, in his oral and written submissions, questioned the nature of the evidence against D4.  He pointed out that there was no evidence of association between D4 and the defendants except for the outing on 27 and 28 May 2015 and his attendance at electronic courses together with D3 and D5.  He further pointed out that D4 had no contact or involvement with the relevant defendants in relation to the events on 14 June 2015.  He challenged the evidence of PW3 and PW4 and noted that Superintendent Roberts (PW34), was unsure in his expert opinion about the observations of the police officers on 28 May 2015.  The various points and issues that he has raised are matters for the jury to consider and determine. 

42.  Mr Keith Fung, for D5, in oral submissions submitted that apart from the admissions made by D5 in the two VRIs and the video reconstruction, there was no evidence of association between D5 and the others and nothing incriminating was found at his home when searched by the police.  He sought to rely on the inconsistencies of D5’s answers in his caution statements but it would appear that there are admissions contained in them that the prosecution can rely on in relation to Count 1. 

Conclusion

43.  The matters raised by counsel for the defendants in their no case submissions do not justify taking the case away from the jury.  There is in my view a case to answer against each of the defendants on the counts that they respectively face.  The matters that they have raised are matters appropriately in the province of the jury and for them to consider together with all the other evidence presented to them.