HKSAR v. CHAN MAN NA AND OTHERS

DCCC 583/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 583 OF 2015

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RULING
on D1’s Submission of No Case to Answer

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1. The approach a judge must take when considering a no case submission is set out in R v Galbraith,[1] where Lord Lane CJ said,[2]

“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. It follows that we think the second of the two schools of thought is to be preferred.”

The court adopted the words of Lord Widgery CJ in R v Barker (Note)[3] where his lordship said,

“… even if the judge ” — our emphasis — “has taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge's obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge's job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury …”

R v Galbraith has been consistently adopted by the courts in Hong Kong: see, eg, R v Ip Chi Keung.[4]

2. As to how a trial judge should approach a prosecution’s case based on inferences when facing with a no-case submission, in my view the following said by Kempster JA in Attorney General v Li Fook Shiu Ronald,[5] which is about an application to discharge made under s 22 of the Complex Commercial Crimes Ordinance, Cap 394, is also applicable:-

“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 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.”

3. Also, in Director of Public Prosecutions v Varlack,[6] 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.  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 Lord Carswell cited the judgment of King CJ in the Supreme Court of South Australia in Questions of Law Reserved on Acquittal[7] 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.”

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:[8] -

“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.]

In the end, Lord Carswell said that when one applies the above principle, it follows that the fact that another view, consistent with innocence, could possibly be held does not mean that the case should be withdrawn from the jury.  See also the recent case of the Court of Appeal in Secretary for Justice v Ng Siu Lun[9]where DPP v Varlack was applied in Hong Kong. 

4. In the present case, there is no dispute that D1 was not present when the alleged threats were made by either D2 or D3 inside the meeting room on 8 July 2014.  However, it is trite that presence of itself is neither necessary nor sufficient for a person to attract secondary liability under the “doctrine” of joint enterprise.  There is also no dispute that D1 received the $100,000 from PW1 after the PWs had returned from the bank in the company of D2 and D3. The crux of the matter, for the purpose of this no-case submission from D1, is whether D1 was a party to a criminal joint enterprise with D2 and D3 to demand money from PW1 with menace, namely threats that if PW1 did not pay, the PWs would not be allowed to go and PW1’s title deeds would not be returned to her.

5. The prosecution’s evidence against D1 is admittedly a circumstantial one which consists of the following:-

(a) D1, D2 and D3 were all employees of Merchants Wealth;

(b) PW1’s evidence-in-chief that she had several telephone calls with a Ms Chan of Merchants’ Wealth concerning her loan application prior to the 8 July visit and her evidence in cross-examination that Ms Chan was D1.  I note also that, according to PW1, it was Ms Chan who on 3 July asked her to bring along the title deeds to Merchants Wealth the following day for the purpose of the loan application.  It is also PW1’s evidence-in-chief that on 4 July when she had D3 was inside the meeting room, when she asked what would happened if she did not have enough money to pay the handling fee, D3 said Ms Chan would sort it out for her.  Later, D3 informed PW1 that she should borrow $300,000.  That evidence, if accepted, may allow an inference that D1 was the one in Merchants Wealth in charge of PW1’s loan application;

(c) PW1’s evidence that on 8 July, before the visit to Merchants Wealth, she and Ms Chan had a telephone conversation during which she told Ms Chan that she was not going to borrow.  Therefore, if it was accepted that Ms Chan was D1, then D1 would know before PW1 turned up in the office later that day that there was a possibility of PW1 not proceeding with the loan application;

(d) there was evidence, also from PW1, that D2 and D3 had told a female staff employee that they were going to the bank with the PWs.  Therefore, whether or not that female staff member was D1, an inference might be drawn that D1 would be informed of the fact that the PWs were going to the bank to withdraw money;

(e) there was also the evidence that PW1’s title deeds were in D1’s possession before they were returned to PW1; and

(f) the undisputed evidence that among the defendants, D1 was the one who received the money from PW1 and gave her the cancellation agreement to sign and returned to her the title deeds. 

6. Based on the above, it is in my view open to a reasonable jury, properly directed, to draw the interference that D1 was acting together with D2 and D3 in a joint enterprise of blackmail. 

7. Therefore, I rule that there is a case for D1 to answer.