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Hksar v Chan Yiu Shing And Others

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date30 October 2017
Neutral Citation[2018] HKCFI 321
Year2017
Judgement NumberHCCC41/2016
Subject MatterCriminal Case
CourtCourt of First Instance (Hong Kong)
HCCC41V/2016 HKSAR v. CHAN YIU SHING AND OTHERS

(Ruling 17)

HCCC 41/2016

[2018] HKCFI 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

_______________

HKSAR
v
CHAN Yiu-shing 1st Defendant
CHENG Wai-shing 2nd Defendant
PENNELLI Rizzy 3rd Defendant
WU Kai-fu 4th Defendant
MAN Ting-lock 5th Defendant

_______________

Before: Hon Zervos J in Court
Dates of Hearing: 26 and 27 October 2017
Date of Ruling: 30 October 2017

___________________________________

RULING ON NO CASE TO ANSWER

___________________________________

1. Each counsel for the five defendants, has made an application upon the close of the prosecution case that there is no case to answer in relation to the defendant concerned.

The legal principles

2. The principles governing the issue of whether or not there is a case to answer are set out in R v Galbraith (1981) 73 Cr App R 124, where Lord Lane CJ said at 127:

“(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty – the judge will 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 concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on 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 on which the 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.”

3. In the case of AG v Li Fook Shiu Ronald [1990] 1 HKC 1 the Court of Appeal addressed the issue of the applicable test when dealing with both primary facts and inferences to be drawn from such facts. The Court stated that when dealing with primary facts and inferences to be drawn from such facts, the judge is not concerned 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.

4. The Court observed that a judge faced with a submission of “no case” or an application for discharge in circumstances where the prosecution case depends upon an inference or inferences from primary facts, may ask himself: (a) was there some evidence that the crime had been committed? If not, the judge would rule no case or discharge the count in question. If there was, (b) was the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge would stop the case or discharge the count. But if such evidence was of appropriate quality, (c) 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 were to be established? If he concluded that a jury could, may or might so be satisfied, he would rule against the submission or application.

5. Mr Jonathan Man, for the prosecution, also directs my attention to the summary of principles in relation to a case to answer as encapsulated by King CJ in Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323 at 327:

“… 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.”

The prosecution case

6. Briefly stated the prosecution case is that the five defendants have conspired together between 28 May and 14 June 2015 to make explosive substances, namely a mixture of nitrate salts, producing a pyrotechnic effect (Count 1), and that each of D1, D2 and D3 on 14 June 2015 variously possessed certain explosive substances (Counts 2, 3, 4 and 5).

7. The relevant offence provision is found in section 55 of the Crimes Ordinance, Cap 200, (the CO), which reads:

“55. Making or possession of explosive

(1) 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.

(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.

(3) No prosecution for an offence under subsection (1) shall be instituted without the consent of the Secretary for Justice.”

8. The evidence presented by the prosecution mainly consists of surveillance of the defendants and of the substances and items seized by police officers as well as expert opinion on aspects of this evidence.

9. The 5 defendants were observed gathering together outside D1’s residence in the evening of 27 May 2015. They then go to a McDonald’s restaurant and return later in the early hours of 28 May 2015 at the same location. D1 goes into the building of his residence and returns with a blue cooler box. D1, carrying the box, leaves together with D4 and D5 and they take a minibus to Sai Kung. D2 and D3 leave separately on D2’s motorcycle. Later, D1, D4 and D5 are seen scaling a wall and entering the site of the abandoned ATV building. Police officers observe flashes and smoke at the top of the ATV building at 2:17 am, 2:21 am and 2:26 am. Police officers also observed D2 leaving the site at about 2:42 am. He is observed making a phone call and appears to be chatting before leaving on his motorcycle. The phone call records of D2 show a call to D3’s phone at 2:49 am, as well as calls with D4 during this period.

10. The prosecution case is that the blue cooler box taken to the ATV building by D1 on 28 May 2015 was left there. It is their case that the box was later used by D2 and D3 and retrieved on 14 June 2015. The box is exhibit P714.

11. A little after 6 pm, on 14 June 2015, D2 and D3 are observed entering the ATV building. Soon after they are seen on the rooftop and appear to be mixing and putting substances into 2 bottles. They had with them a box similar in appearance to exhibit P714. They leave with the box. At about 7:24 pm, a police officer observes white smoke bellowing from a window on the top floor which rose as high as 3 to 4 stories. As D2 and D3 leave the building they are arrested by police officers. Police officers locate a blue cooler box, exhibit P714, behind a staircase on the ground level. Inside the box police officers find nitrate salts and sugar. Inside the cistern of a toilet on the ground level a McDonald’s cup is retrieved which is found to contain a mixture of nitrate salts that when ignited emitted smoke. Various substances and items were found in the possession of D2 and D3 at the time of their arrest, and later at the homes of D1 and D3.

12. Put simply, the issue in this case centres on whether the defendants agreed to make, and whether the defendants concerned possessed, certain explosive substances. There was presented as part of the prosecution case, the expert evidence of two bomb disposal officers and a government chemist in relation to the observations of the surveillance officers concerning the events on 28 May and...

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