THE ATTORNEY GENERAL v. NG YUK TUNG

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J U D G M E N T

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Bewley, J. This is the judgment of the court:

1. This is an appeal by the Attorney General against an order for discharge made under section 16 of the Criminal Procedure Ordinance by Deputy Judge Jennings on 23rd December 1991.

2. Section 16(1) reads: -

"(1) Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap.227) or proceedings stand transferred to the court for trial under section 77A(6) of the District Court Ordinance (Cap.336), the accused may at any time -

(a) if the Attorney General does not institute proceedings within the period specified in section 14(1)(a), or (aa) , as the case may be, after the expiration of that period; or

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

apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance, (Cap.227) or, as the case may be, delivered to the Registrar under section 10A as read with any further evidence the Attorney General has notified the accused he will seek to have admitted at the trial., is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge."

3. On 12th April 1991 police officers on duty at Lo Wu railway marshalling yard arrested five illegal immigrants in a goods wagon. One of them was the respondent. The wagon was searched and a modified "Butterfly" brand starting pistol was found concealed between sacks underneath some cargo. A sheet of paper percussion caps and some fireworks powder were also found in a plastic bag.

4. When interviewed by police the respondent made two cautioned statements in which he made significant admissions. There was no other evidence against him. He told the police that on 5th April he and four friends arrived in Guangzhou from Jiangxi. At the station he met a friend who told him that in Hong Kong he could earn $6 - 7,000 per month. As a result all five decided to go to Hong Kong.

5. On 11th April the same friend gave the respondent HK$100 in exchange for 200 odd RMB. He also gave him a packet wrapped in newspaper which he was to deliver to the friend's brother in Hong Kong. He would find him in Man San Koon in the morning. On receipt of the packet he would be prepared to give the respondent special assistance. But his friend warned him not to let other persons know about the packet.

6. The first cautioned statement concluded "After the vehicle had started, I opened it by stealth and found that it's a pistol. I dared not let my friends know it. Then I hid it in the vehicle secretly. Later I was caught."

7. The respondent was further questioned and made it clear that he did not know before the train started that the packet contained a pistol. He opened it because he was curious. He did not open the plastic bag and had no knowledge its contents. He was not asked if he still intended to take the gun to Hong Kong after he discovered what it was.

8. Before arraignment the judge indicated he was concerned that the evidence of the cautioned statements might not amount to a prima facie case against the respondent and invited defence counsel to make a submission.

9. After a short adjournment counsel submitted that by hiding the gun as soon as he discovered it the respondent had abandoned it. Prosecuting counsel replied that the hiding of the gun did not mean that the respondent no longer intended to carry it to Hong Kong. He pointed to the friend's instructions regarding secrecy and to the respondent's failure to throw it out of the window.

10. The judge's ruling was in these terms: -

"The truth which the jury would be considering is what the defendant's intention was in hiding the gun. The jury would be directed that if they decided that the defendant's intention was to abandon the gun and have no more to do with it or this was possibly his intention, they must acquit. They will be directed that they should only convict if they were sure his intention was to recover the gun from a hiding place and proceed to deliver it.

In my view, the action of the defendant in hiding the gun among the cargo was a completely equivocal one consistent with either intention. There is no other material in the papers before me which can possibly assist the jury one way or the other in reaching a decision on the accused's state of mind when he hid the gun. I consider it will be dangerous in the extreme to allow a jury to convict the defendant on the evidence available to them. That being the case, I am of the view that a jury could not properly convict the defendant on that evidence and that the evidence is therefore insufficient to establish a prima facie case against him. I therefore direct the defendant shall not be arraigned on the only charge against him and that he be discharged."

11. The respondent was repatriated to China on 31st December and indicated that he did not wish to return to Hong Kong. An attempt to serve him by post with a notice of hearing was unsuccessful. Rule 4(1) of the Criminal Procedure (Appeal against Discharge) Rules requires service of notice of the appeal unless the respondent cannot be found or is outside Hong Kong. In these circumstances the appeal was heard in his absence.

12. The appellant filed a skeleton argument on 10th July. Mr Stirling, who appeared as amicus curiae, told the court that, except on the question of a retrial, he would not oppose the Crown's submissions. There was no further argument.

13. The first of these submissions was that there no evidence of abandonment of the gun and none could be inferred from the respondent's action in secreting it.

14. Alternatively, the fact that there were competing inferences on the face of the depositions did not entitle the judge to hold that there was no prima facie case. To the extent that the judge might be taken as holding that a conviction on the evidence would be unsafe and unsatisfactory, that was not a proper basis for holding no case to answer.

15. It was unfortunate that no authorities were cited to the judge because the same question was considered by this court in Attorney General v. LI Fook-shiu Ronald CA No.3 of 1990 in relation to discharge under s.22 (1) of the Complex Commercial Crimes Ordinance (Cap.394). Kempster JA, giving the judgment of the court, said the classic statement of the law of England and Hong Kong relevant to the submission of "no case" was to be found in the judgment of the English Court of Appeal given by Lord Lane CJ, in R v Galbraith[1981] 1 WLR 1039 at p.1042: -

"(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 of 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".

16. Before Galbraith trial judges in England had tended to stop a trial if in their opinion a verdict of guilty would be unsafe or unsatisfactory. This practice appears to have developed following the passage of the Criminal Appeal Act 1966, which allowed for the setting aside on appeal of unsafe or unsatisfactory verdicts. The practice was approved in R v Mansfield [1977] 1 WLR 1102 at pp.1106-1107. The judgment in Galbraith makes it clear that the proper test is not whether, in the judge's view, the main prosecution witness is to be believed and to that extent Mansfield should not be followed.

17. 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 p.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 which 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."

18. 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.

19. Having comprehensively reviewed the authorities Kempster JA said at p.16: -

"In relation equally to primary facts and to inferences to be drawn from such facts (The judge's) 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.

If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of 'no case' or an application for discharge in circumstances where the Crown's case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself: -

(1) Is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;

(2) Is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3) 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 are to be established? If he concludes that a jury could, may or might so be satisfied lie will rule against the submission or application."

20. Given that the respondent never stated that he had abandoned the pistol but said only that he had hidden it, we were satisfied that there was evidence from which a jury, properly directed, might have inferred that he was in possession of the pistol.

21. For these reasons the appeal is allowed and the acquittal quashed. The appellant seeks a retrial, which is opposed by Mr Stirling on the grounds that the respondent is in China and unlikely to return. We think, however, that it would be wrong to deprive the Crown of the opportunity to prove its case should the respondent change his mind and be apprehended in Hong Kong at some future date. A retrial is therefore ordered.

22. We must refer to one final matter. The procedure adopted by the judge was wholly inconsistent with the rules governing applications for discharge under section 16. While there is ample power to dispense with the requirements of those rules, such an order was not made. Counsel then appearing for the Crown took no point as to the requirements in the rules. It is plain from the fact that the first mention of section 16 was in the ruling of the judge that neither counsel ever adverted to the section or the rules. Had the rules been 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.