HKSAR v. WONG WING YI

HCCC 196/2021

[2022] HKCFI 2269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 196 OF 2021

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R U L I N G

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1.  This is an application by Mr Yu on behalf of the second defendant (“D2”) under s16 of the Criminal Procedure Ordinance, Cap 221 (“s16”), to discharge the accused on the grounds that the evidence disclosed in the documents before the Court is insufficient to establish a prima facie case against her on the sole count of trafficking in a dangerous drug which she faces.

Procedure under s16

2.  An application under s16 should be made by way of Notice (“the Notice”) in accordance with the Criminal Procedure (Applications under Section 16) Rules, which, under rule 5 would usually require service of the Notice not less than 14 days prior to the date of hearing.  Rule 12 allows the Court to waive or remedy any non-compliance where such was not wilful.  The exercise of that discretion should be exercised judicially in accordance with the normal principles which includes but is not limited to a consideration of any prejudice to the prosecution by such late notice.

3.  Ms Remedios, on behalf of the prosecution, very fairly submits that she is not prejudiced by non-compliance with the rules.

Section 16

4.  Section 16 of the Criminal Procedure Ordinance states:

Discharge of accused

16. Discharge of accused after committal without a hearing

(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 Secretary for Justice 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 filing of the indictment and prior to his arraignment thereon, (Amended L.N. 395 of 1983)

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 Secretary for 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 for any other offence for which he might be convicted upon that charge. (Amended 59 of 1992 s. 5; L.N. 362 of 1997)

(2) If an application is made under subsection (1) in the circumstances specified in paragraph (a) thereof—

(a) the judge may, of his own motion or on the application of the accused, require the Secretary for Justice to file indictment within such time, and on such terms (if any) as to costs as may be specified in the order;

(b) subject to any order under paragraph (a), the Secretary for Justice may at any time after an application is made under subsection (1), and before the final determination thereof, file an indictment, but the judge may award costs against him if the applicant has incurred any costs by reason of the late filing of the indictment. (Amended L.N. 362 of 1997)

(3) The judge may after perusal of the documents and after hearing any representations which the accused and the Secretary for Justice may wish to make, direct that the accused shall not be arraigned on the charge, and direct that he be discharged. (Amended L.N. 362 of 1997)

(4) Subject to section 81E(3), a discharge under this section shall be deemed to be an acquittal.

5.  The relevant legal principles in respect of a s.16 application are well-settled.  They follow the classic test as laid out in R v Galbraith [1981] 1 WLR, 73 Cr App R 124, but with a caveat that the judge is not in a position at this stage to take into consideration any inherent weakness or vagueness in the evidence before him or her, or whether it may be inconsistent with other evidence but he, or she, must assume what is said is true[1]. In Attorney-General v Li Fook Shiu, Ronald [1990] 1 HKC 1 the Court of Appeal stated[2]:

“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.

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 he will rule against the submission or application.”

6.  This was, as ever, succinctly summarized by McWalters J (as he then was) in HKSAR v Tang Sau-ling HCCC 396/2011:

“This case makes it clear that in determining a section 16 application I am not concerned with what findings of fact I would make or even with what findings of fact a jury would make, but rather with what findings a jury could, may or might make. In making this determination I do not assess the quality of the evidence for that would be to usurp the function of the jury. I assume that all evidence that is admissible and probative of the issue in dispute will be accepted by the jury and decide whether, given that evidence, a properly directed jury could, may or might find that issue proven by the prosecution. The jury could only properly find that issue proven if the evidence is capable of satisfying them of that issue beyond reasonable doubt. (See also The Queen v Tin Sau-kwong [1996] 1 HKCLR 9). By “capable” I am not referring to the quality of the evidence but rather the sufficiency of it.”

The Evidence

7.  The Court here should ask itself:

a.  What is the offence to be proved?

b.  What is said to be the role of the applicant within that offending?

c.  What evidence is available to support that case?

d.  Does that evidence amount to the actus reus and mens rea of the offence charged?

8.  The defendant is charged with a substantive offence of trafficking in a dangerous drug with D1.  The prosecution must be able to prove beyond reasonable doubt inter alia that the defendant knowingly possessed dangerous drugs or exercised custody and control over them.

9.  The evidence indicates that the defendant was to be the person to whom the package was to be delivered and thereafter from whom the package would be collected.  In other words, she was to be the person who physically possessed the drugs.  In her submissions Ms Remedios submits that this is a case of joint enterprise and that there is no requirement for them to prove possession as against D2.  The events, as they evolved, led to her assisting D1 to take possession.  That is not how I understood the case was to be presented.  What is now alleged is that the defendant played a logistical role only.  In essence she aided and abetted D1 and others unknown to traffic in dangerous drugs.  If that is now the case, it would have assisted the jury for it to be charged as such.  Even if joint enterprise is a proper way to proceed now against the defendant, it cannot answer the difficulty which the prosecution face as to knowledge.  It may, in fact, place the prosecution at a disadvantage for to suggest that she simply played a part in the collection of a parcel at the direction of an unknown third party, suggests that there was no need for her to know of its contents, whereas the facts of the case suggest that she was due to take possession and intended to take possession but never did so.

10.  On either basis, what is the evidence, whether direct or indirect, the prosecution rely upon to prove that in carrying out either role, the defendant had possession, custody or control and that she knew that what she (or D1) possessed were dangerous drugs?  For the purposes of this application, coming as it does before arraignment, I will take into consideration all of the evidence within the bundle including the Additional Evidence, which contains digital evidence, some of which may in other circumstances have been the subject of an application to render it inadmissible.  In other words, I will take into consideration the entirety of the prosecution case at its highest at this stage of the proceedings, assuming all such evidence was admissible.

11.  The prosecution rely upon the following to establish a prima facie case against D2:

a.  The package airway bill is in the name of D2 and uses her address which she accepted she had provided for this purpose;

b.  She accepts that she agreed to receive the package for a reward;

c.  That reward was in the region of several thousand dollars for something the way bill identified as “protein powder”;

d.  She had in her possession for a short period of time, the notification card left at her address in order for her to collect the package from the post office;

e.  She intended to collect it and went to the post office in order to do so;

f.  She was directed by a third party to allow D1 to collect it in her stead and provided the card and a copy of her ID so that D1 could collect it;

g.  She waited in the vicinity of the post office whilst D1 collected the package in order to obtain her reward;

h.  She attempted to contact D1 and the controlling third party after D1 had gone to collect the package;

i.  She acknowledged within the digital evidence that the enterprise she was engaged upon was illegal;

j.  The street value of these drugs was some $4 million odd.

12.  It is therefore accepted that there is no evidence at all of physical possession or custody and control of the drugs.  Indeed, there is evidence that a third party was exercising control and D1 came to be in possession.  There is no direct evidence either of any exercise of the means of custody or control although by inference the defendant had the means of collection of the package as that exercise required the notification card and her ID and she travelled to the post office with the intention of collecting the package.  However, she was under the direction of a third party as to that and was ultimately told to assist someone else to collect the package and not to do so herself.  This is supported by the digital evidence which is somewhat disparaging of D2.  I do not see how it can be said she had any independent control over the package at any stage.  The prosecution accept this.

13.  As for her knowledge, there is nothing within the digital evidence or her VRI, from which the prosecution can show that D2 knew the parcel contained dangerous drugs.  At its highest, the digital evidence indicates that she believed that the contents of the package were illegal but no more.  This is insufficient to ask the jury to draw the only reasonable inference that what the package contained were dangerous drugs.

Conclusion

14.  On the basis of the evidence before me, taken at its highest, and on the assumption that a jury would accept it without qualification, I am of the view that the answer to the question of whether a properly directed jury could, may or might be satisfied beyond reasonable doubt that the defendant possessed or had custody and control over the goods, is “No”.  If I were wrong in that because the prosecution could properly proceed on a joint enterprise basis, I do not believe that a jury could, may or might be satisfied beyond reasonable doubt that she knowingly sought to possess or assist in possessing dangerous drugs.

15.  Accordingly, I grant the application and direct that the accused shall not be arraigned on the charge she faces and that she be discharged.