R. v. HO MAN CHIK

IN THE COURT OF APPEAL

1996, No. 649

(Criminal)

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J U D G M E N T

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Mayo JA giving the judgment of the Court:

1. The applicant was originally charged with two counts of having custody or control of counterfeit coins contrary to s100(1) of the Crimes Ordinance. After a trial before HH Judge Sweeney he was convicted on the first count and acquitted on the second. He now seeks leave to appeal against this conviction.

2. The police were conducting a surveillance operation outside a flower shop at Tak Man Street Hung Hom in the afternoon of 2 February 1996. The applicant was seen to emerge from the flower shop carrying a bag. He got into a taxi and was intercepted by the police. The bag he was carrying was searched and was found to contain 499 things which resembled HK$10 coins and 4 things resembling HK$5 coins. It was the possession of these articles which was the subject matter of the first count.

3. The applicant, who was D1 at trial, made two cautioned statements to the police which described the circumstances under which the applicant came to be in possession of the counterfeit coins but in which he denied any knowledge that the coins were in fact counterfeit.

4. The police then conducted a raid of the flower shop and they found a substantial quantity of different counterfeit coins. The applicant and three other people were charged with the second count in relation to this.

5. At the trial below initially all four defendants pleaded not guilty to the second count. The case proceeded in a rather unusual manner. All of the evidence save the evidence of one of the witnesses who was an expert witness was admitted as agreed facts.

6. The agreed facts established that all of the coins were counterfeit and had been found either in the possession of the applicant or at the cockloft of the flower shop.

7. It also established that the chemical composition of the coins carried by the applicant was the same as the coins found in the cockloft and that the chemical content of fragments on the bodies of all the defendants showed that they had all had "contact" with the counterfeit coins prior to their arrest.

8. The expert witness who gave oral testimony was the scientist who analysed the fragments which had been taken from the hands of the defendants by way of adhesive tape and compared these with the coins which had been seized.

9. There was lengthy cross-examination on the question as to how the expert was able to distinguish between primary and secondary contact with metal fragments and how he was able to assess the amount of contact each of the defendants had had with the coins.

10. At the conclusion of the experts evidence D3 changed his plea to guilty and D4 pleaded to a lesser charge. The applicant however through his counsel made a submission of no case to answer on both counts he was charged with and D2 made a similar submission to the applicant on the second count which was the only count he was charged with.

11. Neither defendant went into the witness box. Submissions were made by both counsel and the judge found the applicant guilty on the first count and acquitted him on the second count. He also acquitted D2 on this count.

12. In his Reasons for Verdict it would appear that the judge was not satisfied that the evidence connecting the defendants with the coins was sufficient to prove the 2nd charge beyond a reasonable doubt.

13. So far as the first count was concerned the judge was satisfied that the applicant was in possession of the counterfeit coins he was carrying and he rejected the explanation given by the applicant in his cautioned statement.

14. There are two main grounds of appeal. These are as follows:

1. The Learned Judge erred in law in ruling a case to answer on the more serious second charge following a submission at the close of the Crown's case and then at the close of the defence case deciding that there was insufficient evidence upon which to convict the Appellant. (R. v. H. [1994] 11, CRNZ 407)

2. The ruling in respect of the more serious second charge made have affected the Appellant's decision as to whether to give evidence on his own behalf in the defence case.

15. The main question which has to be considered is was the judge in error in ruling that there was a case to answer on the second count.

16. What is very clear is that the criteria to be adopted in determining whether there is a case to answer or not is not the same as whether the defendant is guilty as charged. The question is whether the jury properly directed, could make a finding of guilt on the evidence adduced at the conclusion of the prosecution case. The authority of this proposition is the Attorney-General v. NG Yuk-tung[1992]2 HKC 204.

17. Mr McLanachan referred to the New Zealand case referred to in the grounds of appeal to support his submission that a different yardstick should be adopted namely that the judge should only hold that there is a case to answer if the evidence is such as would require him to convict. We can see no reason why this approach is preferable to the one adopted in this jurisdiction. Problems could arise if this approach was adopted. It would have the effect of requiring a defendant to go into the witness box.

18. There was ample evidence to support a case to answer on the second count. The coins which the applicant had been carrying were very similar to the coins found in the cockloft. The applicant had been seen to emerge from the flower shop before he was arrested by the police.

19. The applicant's fingerprint was found on paper in the cockloft which had been used to wrap the counterfeit coins.

20. The judge was clearly justified in finding that the applicant did have a case to answer. The fact that the judge may at the end of the day have given the benefit of the doubt to the applicant on that count cannot be held to effect in any way the propriety of his conviction on the first count.

21. This conviction was not in any way unsafe or unsatisfactory and this application is refused.