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Re Secretary For Justice

Judgment Cited authorities 41 Cited in Precedent Map Related
Vincent
Judgment Date28 October 2022
Neutral Citation[2022] HKCA 1635
Year2021
Judgement NumberCASJ3/2021
Subject MatterSecretary for Justice"s Reference
CourtCourt of Appeal (Hong Kong)
CASJ1/2021 RE SECRETARY FOR JUSTICE

CASJ 1, 2 & 3/2021
(Heard together)

[2022] HKCA 1635

CASJ 1/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

SECRETARY FOR JUSTICE’S REFERENCE NO 1 OF 2021

________________________

IN THE MATTER of section 81D of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong

________________________

SECRETARY FOR JUSTICE Applicant

________________________

AND

CASJ 2/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

SECRETARY FOR JUSTICE’S REFERENCE NO 2 OF 2021

________________________

IN THE MATTER of section 81D of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong

________________________

SECRETARY FOR JUSTICE Applicant

________________________

AND

CASJ 3/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

SECRETARY FOR JUSTICE’S REFERENCE NO 3 OF 2021

________________________

IN THE MATTER of section 81D of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong

________________________

SECRETARY FOR JUSTICE Applicant

________________________

(Heard together)

Before: Hon Macrae VP, Zervos and A Pang JJA in Court

Dates of Hearing: 14 June 2022 and 26, 27 and 29 July 2022

Date of Judgment: 28 October 2022

________________________

J U D G M E N T

________________________

Hon Macrae VP (giving the Judgment of the Court):

Table of Contents

A. Introduction
B. Brief background; and the questions of law
C. The trial concerning CASJ 1/2021
C.1. The prosecution evidence
C.2. The defence evidence
C.3. Submission of no case to answer; the Judge’s ruling
D. The trial concerning CASJ 2/2021
D.1. The prosecution evidence
D.2. Submission of no case to answer; the Judge’s ruling
D.3. Direct exchanges between the Judge and the jury
E. The trial concerning CASJ 3/2021
E.1. The prosecution evidence
E.2. Submission of no case to answer; the Deputy Judge’s ruling
F. The submissions
G. Answering Question 1
G.1. The 1st fundamental legal principle
G.2. The 2nd fundamental legal principle
G.3. The 3rd fundamental legal principle
G.4. The 4th fundamental legal principle
G.5. The 5th fundamental legal principle
G.6. The 6th fundamental legal principle; the application of R v Galbraith in common law jurisdictions
G.6.1. A ‘wrong turn’ in R v Moore
G.6.2. The problem in R v Hedgcock & Others; and a second ‘wrong turn’ in R v G & F?
G.6.3. Is R v G & F compatible with R v Galbraith?
G.6.4. The position in Australia: Doney v The Queen
G.6.5. The position in New Zealand
G.6.6. The decision of the Privy Council in DPP v Varlack
G.6.7. The ‘King rider’
G.7. The correct approach in Hong Kong
H. Answering Question 2
H.1. The Judge’s errors in CASJ 1/2021
H.2. The Judge’s errors in CASJ 2/2021
H.3. The Deputy Judge’s errors in CASJ 3/2021
I. Conclusion
I.1. Overruling the Judge and Deputy Judge’s rulings
I.2. Proposed reform on the appeal mechanism

A. Introduction

1. By three separate applications arising out of three different cases[1], the Secretary for Justice (“the Applicant”) has referred a common question of law to this Court, pursuant to section 81D of the Criminal Procedure Ordinance, Cap 221 (“the Criminal Procedure Ordinance”). On the basis of the identical questions involved[2], the Applicant has also sought to have the three applications heard together, which the Court so ordered on 22 October 2021. The Court was further satisfied that, despite the Applicant’s attempts to find the respondents, none of them could be located, since they had left Hong Kong immediately following their directed acquittals[3]. Accordingly, this Court directed that these applications should proceed in the absence of all respondents, who are required nevertheless to remain anonymous by virtue of the statutory requirement in section 6 of the Criminal Procedure (Reference of Questions of Law) Rules, Cap 221E.

2. At the hearing on 14 June 2022, the Court extended the appointment of Ms Maggie Wong SC as amicus curiae to encompass all three applications, as distinct from CASJ 1/2021 alone. Meanwhile, the Court took the opportunity to raise certain issues, on which it invited further specific argument from the parties to be incorporated in a set of consolidated submissions by each party. Accordingly, Mr William Tam SC (with him Mr Ira Lui and Ms Audrey Parwani) for the Applicant, as well as Ms Wong, each filed extremely comprehensive written submissions for the resumed hearing on 26 July 2022.

B. Brief background; and the questions of law

3. Each of the four respondents in these applications had been indicted on at least one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; the first two trials taking place in the High Court before Campbell-Moffat J and a jury; the third before Deputy Judge McWalters and a jury. In each case, the prosecution relied on an inference to be drawn from various pieces of circumstantial evidence in order to establish the respondent’s knowledge of his/her possession of dangerous drugs. Each of the judges ruled, albeit at different stages of the trial, namely, at the close of the prosecution case (CASJ 3/2021), the close of the defence case (CASJ 1/2021) and the conclusion of both counsel’s addresses to the jury and, therefore, immediately prior to the summing-up (CASJ 2/2021), that there was no case to answer and, accordingly, directed the jury to acquit the relevant respondent.

4. The identical questions of law posed in each of the three applications are as follows:

(1) Where there is no direct evidence of a key element of the offence and the prosecution rely on circumstantial evidence in establishing that element, what is the correct approach that a trial judge should take in dealing with a submission of no case to answer made at the close of the prosecution case or during the course of the defence case? In particular, should the trial judge take into account competing inferences consistent with innocence which are only premised on the defence evidence? (hereinafter collectively referred to as “Question 1”)

(2) In the context of the present case of trafficking in a dangerous drug, where there is no direct evidence of the accused’s knowledge of the presence of the drug, whether the trial judge erred in respect of a question of law in ruling that there was no case to answer and directing the jury to acquit, namely (by) (i) wrongly finding that there was no admissible evidence from which the jury could draw the required inference; and (ii) wrongly making findings of fact and/or drawing inferences which were matters that ought to have been left to the jury to determine? (hereinafter referred to “Question 2”)

5. Before answering these questions, it is relevant to highlight in some detail the prosecution evidence led during the trials concerned; the defence evidence called (where any); the matters which occasioned the particular ruling of no case to answer; and the reasons for the ruling.

C. The trial concerning CASJ 1/2021

6. The respondent in the 1st application, namely, CASJ 1/2021 (hereinafter referred to as the 1st respondent), stood trial before Campbell-Moffat J (“the Judge”) and a jury.

C.1. The prosecution evidence

7. The 1st respondent was a citizen of Honduras, who had entered Hong Kong on 6 October 2018. As he was leaving the Customs Arrival Hall of Hong Kong International Airport, he was intercepted by Customs officers for a clearance check; during which there were discovered in his backpack, amongst other things such as some new clothing[4] and a notebook computer[5], two packets of substance in two different concealed compartments[6], with one of the packets covered by yellowish carton paper (with a corner protruding out from the inside of the backpack[7]). The substance was subsequently confirmed to be 1,909 grammes of a solid containing 1,420 grammes of cocaine narcotic, with a street value of some HK$2.14 million at the time.

8. Under caution, the 1st respondent said that he had obtained the backpack in São Paulo, Brazil, from an unknown male some two weeks earlier; he was then instructed to deliver the same backpack to someone in Hong Kong as a gift in order to speed up the process of a proposed project[8]. A controlled delivery operation was commenced that same evening and concluded at 1:15 pm the next day[9], but without success. In a subsequent video recorded interview, the 1st respondent stated, inter alia, that he was in debt to the tune of some US$10,000 to 20,000[10].

C.2. The defence evidence

9. At trial, the 1st respondent elected to give evidence and said that he was the director[11] of a non-governmental organisation called PROSAMH, which was concerned with “environmental alternative for health (projects)”[12]. In order to raise funds for a five-year plan between 2013 and 2018[13], the 1st...

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