HKSAR v. LAU CHEUK FAN

1998, No. 141
(Criminal)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

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J U D G M E N T

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1. This Applicant is the second of two accused committed under section 18C(4) of the Magistrates' Ordinance Cap. 227 to stand trial in the High Court on one count, being a count of possession of explosive substances, contrary to section 55(1) of the Crimes Ordinance, Cap. 200. He now applies, under section 16 of the Criminal Procedure Ordinance, Cap. 221, 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, as read with the further evidence which he has been notified that the prosecution will seek to have admitted at his trial, is insufficient to establish a prima facie case against him.

2. The particulars of the offence are that the two accused "between the 7th day of January, 1998 and the 18th day of January 1998 in Hong Kong, together with other persons, knowingly had in their possession, custody or control explosive substances, namely 818.483 kilogrammes of explosives, 2,000 non-electric detonators and approximately 1,631 feet of safety fuse."

3. Paragraph 8 of the prosecution's written submission (in which all the references are to the 8th January 1998 save where some other date is named) reads:

"a. At 0828 the applicant was observed driving a Landcruiser HB 199 into the compound at 95B Tai Wo village (Location A) - page 33. This vehicle was registered in the name of an 85 year old man who did not own the vehicle and had no knowledge as to how it came to be registered in his name - page 488. Location A is a newly built house enclosed by a high surrounding wall with barbed fences and security lights - photo album 12. It is this property which was kept under surveillance.

b. Between 0828 - 0914 the applicant was observed in the compound where he was active although not in relation to any of the boxes. At 0844 the applicant' brother Lau Ting-fan arrived at the compound driving a red Accord motorcar registered in the name of the applicant. At 0914 the applicant was seen to leave the compound driving that car and following a lorry which also left the compound.

c. Between 0914 and 1201 three other men were observed moving foam boxes from the house to the compound. These men were Cheung Tze-keung, Lau Ting-fan (the applicant's brother) and Wong Fung-kei (committed for trial on 28th May). The applicant was absent during these activities.

d. At 1201 the applicant returned to the compound in a Mercedes Benz FU199 - page 37. This vehicle is registered in the name of Wong Fung-lam (who is the brother of Wong Fung-kei). It is this vehicle brought to the compound by the applicant which is used to transport the boxes of explosives from this location to Location B at Ma Cho Lung Village.

e. When the application arrived at 1201 he himself opened the locked gate to gain access to the compound. Once in the compound he alighted from the vehicle and was observed with a roll of brown sealing tape - page 37. Brown sealing tape was found on the boxes containing the explosives at Location B - Photographs in Booklet 3. It is the same type of tape as Exhibit 72 as found in the house at Location A by DPC 45807 - page 253 and v. Booklet of Photos 2 - 33.

f. Less than 9 minutes after his arrival the first boxes were loaded into the Mercedes FU199 - page 37.

g. The applicant entered the house and was not observed again until 1644. The house is an open plan house - v. Photographs in Booklet 2. However, during the course of the afternoon 2 other men were seen to be moving the sealed foam boxes from the compound into the Mercedes FU199 - 3 trips were made with 24 sealed boxes. No observations were made of the applicant because he was inside the house together with his brother.

h. At 1657 the applicant was observed to open the boot of the Landcruiser HB199 and to take a foam box from the house and place it in the boot of that vehicle. He was then seen to move the foam boxes from the boot of the Landcruiser to the rear passenger seat of the Mercedes FU199 - page 42.

i. At 1712 he was seen to drive the Mercedes vehicle out of the compound - it was loaded with boxes of the same type later found to contain the explosives. And at 1714 he drove his brother Wong Fung-kei to Location B. Following directly behind him was a second vehicle driven by his brother Lau Ting-fan and this vehicle also stopped at Location B.

j. Location B is at Ma Tso Lung. It is a large hut which has the appearance from the outside of being a derelict factory. However, it disguises a newly built stone house inside. This stone house has a cockloft and it was in this cockloft that the boxes of explosives were ultimately found - v. Booklet of Photographs 3 and Committal Bundle 3 (Photos).

k. At 1745 he was observed stopping outside Location B and carrying a box sealed with yellow tape to the doorway and handing it to Wong Fung-kei who then entered the house with it - page 166.

l. At 1750 Lau Ting-fan was observed moving a foam box with brown tape from the rear of the Mercedes and walking towards Location B with it. There is no mention of the whereabouts of the applicant - page 146.

m. At 1752 the applicant was seen carrying a foam box into Location B - page 166.

n. At 1800 he was seen taking out a box from the right back seat of the Mercedes and passing it to Wong Fung-kei who was standing near the entrance of Location B - page 155 & 174.

o. The applicant transported a total of 9 boxes to Location B (page 40) and was observed to be involved in the unloading of 3 of those boxes.

p. At 1200 on the 9th January Station Sergeant Li Chi-cheong took a series of 12 swabs from the area of the entrance to Location B. These swabs were examined for explosive particles later that day by Chief Inspector LEE Kiu-ki v. Additional Evidence 22/7/98.

q. The premises at Location B were kept under surveillance from 1925 hours on 8th January until 1210 hours on the 17th January when 2 defendants were arrested at the premises v. Additional Evidence 9/6/98. It is conceded that there was a gap in surveillance between 0045 and 1200 on the 9th January.

r. The defendant was arrested on the 18th January and various items of clothing seized from his residence including a waist belt and a pair of white shoes. The Government Chemist found traces of ammonium and nitrate ions on these items - Additional Evidence 21/7/98. The explosives found in the boxes contained a mixture of ammonium nitrate and fuel oil - page 612, 594.

s. When the premises were raided on the 17th January 40 large while polystyrene boxes were found in the cockloft of Location B - page 610 and Photographs Committal Bundle (3) All the boxes were sealed with brown tape - Exhibits 387 - 426. All the boxes contained explosives - in total 818.483 kg - page 612.

t. 19 sealed boxes containing 100 detonators each and one opened box containing 97 detonators were also found in the cockloft - Exhibits 358 - 377. And 3 detonators were found on a window sill in Location A - Exhibit 173 and v. Booklet of Photos 2 - 12, 13 & 14. These 3 detonators from Location A were from the same box that contained the 97 detonators found in Location B. - page 614.

u. Safety fuse was also seized (together with the detonators) at Location B and also at Location A. The safety fuse from both seizures is highly likely to be from the same manufacturing batch and possibly cut from the same reel - page 613."

4. Subject to one reservation, counsel for the Applicant accepts that the foregoing accurately summarises the effect of the prosecution's evidence. That reservation is this. Counsel for the Applicant says in regard to sub-paragraph (d) that it is an assumption that what the vehicle mentioned therein was used to transport were boxes of explosives. But the prosecution says, and I agree, that that is an inference which a reasonable jury would be entitled to regard as the only reasonable one in all the circumstances.

5. Counsel for the Applicant relies on the gap in the surveillance conceded in sub-paragraph (g) above. I say at once that I do not regard that gap as a fatal one in the circumstantial evidence relied upon by the prosecution. When one talks about "gaps" in this kind of situation, it should be remembered that, as the saying goes, circumstantial evidence is like a rope with strands rather than a chain with links. It is necessary to look at the whole picture, and to look at it realistically and with common sense.

6. Leaving aside the question of knowledge which I will turn to in a moment, I say at once that I reject the Applicant's arguments on this application for discharge.

7. Section 55(1) of the Crimes Ordinance, which is the subsection under which the Applicant is charged, reads as follows:

" 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."

8. This is followed by a presumption of knowledge set out in these terms in subsection (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."

9. As to knowledge, the Applicant, in seeking his discharge on the basis of the absence of a prima facie case against him, advances two main arguments:

1) In the absence of the above-mentioned presumption, there is no evidence of knowledge on his part of the contents of the boxes or any of them, because it would not be open to a reasonable jury to conclude that such knowledge is the only reasonable inference in all the circumstances. (The prosecution contends that it would be open to a reasonable jury to so conclude).

2) That presumption is inconsistent with the presumption of innocence contained in article 11(1) of the Bill of Rights and has therefore been repealed by section 3(2) of the Hong Kong Bill of Rights Ordinance, Cap. 383. (The prosecution accepts of course that this is a reverse onus provision but contends that it is justifiable under the appropriate test and is accordingly not inconsistent with the Bill of Rights).

10. The Applicant and the prosecution are not in agreement as to the ingredients of the offence charged. But, for reasons which will become apparent, I do not have to resolve this disagreement on the present application.

11. Leaving any statutory presumption aside, I of course do not consider it to be the law that people can always safely be taken to know what is inside containers which they are transporting or handling. Nor, on the other hand, do I consider it to be the law that people can never safely be taken to have such knowledge. It depends, in my view, on a careful assessment of all the circumstances: of course bearing in mind always the burden and standard of proof in a criminal trial. There will be many cases in which such knowledge cannot be said to be the only reasonable inference. But there will also be some cases in which a reasonable tribunal of fact would be entitled to regard such knowledge as the only reasonable inference.

12. After a careful consideration of this matter, I have come firmly to the conclusion that, even on the view most favourable to the Applicant in regard to the ingredients of the offence charged and the effect of the available evidence, it would indeed be open to a reasonable jury, proceeding by reference to what they consider to be the only reasonable inference in the circumstances, to convict without reliance on any presumption. On that basis, there is a prima facie case against the Applicant whether the presumption of knowledge under section 55(2) remains in force or has been repealed.

13. That means of course that this application must be dismissed however one may answer the question whether the presumption remains in force or has been repealed. That being so, I do not propose to pronounce on that question even though I have heard full argument on it. My reason for not doing so is not simply because it is unnecessary. I also consider it undesirable.

14. When the question of whether the presumption of knowledge contained in section 55(2) has been repealed or remains the law is determined, it will of course be determined as a pure question of law. But it is in the nature of our system that a court is by far in the best position to determine a question of law when it can do so in the real context of a full set of relevant facts. Then the realities and implications of the arguments will emerge far more clearly than they possibly can on just an outline of assumed facts. That was brought home to me very forcefully as I listened to the able arguments of both sides in this application.

15. Without doubt the question here is one of far-reaching implications. Such a point should not be pronounced upon when it is unnecessary to the result of the proceedings and when conditions for deciding it are far from ideal.

16. That, I think, is the thinking behind this statement by Lord Finlay LC in Fraser v. Balfour (1918) TLR 502 at p. 503 (quoted and applied by Lord Denning MR in Richards v. Naum [1967] 1 QB 620 at p. 626):

"That question was therefore still open, at all events in that House (of Lords). It involved constitutional questions of the utmost gravity and a decision upon it should be given only when the facts were before the House in a complete and satisfactory form."

17. Here I observe that in R. v. Law Chi-wai [1995] 3 HKC 446, the Court of Appeal refrained from saying whether the presumption in section 55(2) had been repealed, it being unnecessary in that case to do so.

18. If at the trial, whether before me or another judge, the defence renews the argument that the presumption has been repealed, the matter can be ruled upon before the summing-up, or before counsel's speeches, or even before the defence case begins. At each of these stage, all the prosecution's evidence would have been led, and the question could then be addressed in the real context of that evidence. It would of course be quite unnecessary for the prosecution at the trial to "open" on the presumption or to say anything at all about it to the jury in advance of such ruling.

19. I should also add this. My conclusion in this section 16 discharge application that there is a prima facie case is of course on the basis of what that section is concerned with, namely the evidence disclosed in the documents handed to the Magistrates Court together with the further evidence which the Applicant has been notified that the prosecution will seek to have admitted at his trial. That conclusion at this stage does not preclude a submission of "no case to answer" at the trial itself if the witnesses do not came up to proof or there otherwise emerge at the trial circumstances which put a different complexion on the matter.

20. In the result, this application for discharge is dismissed.