HKSAR v. Chan Yiu Shing and Others

(Ruling 1)

HCCC 41/2016

[2018] HKCFI 305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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REASONS FOR RULING ON AMENDMENTS AND THE INDICTMENT

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1.Yesterday after a day of submissions, I granted the prosecution’s application to amend the indictment and said that I would give my ruling on the prosecution’s application as well as addressing related matters raised by the defence, which I now do.

2.The prosecution applied to amend the Amended Indictment as set out in their two letters dated 22 January 2017. 

3.The indictment was previously amended on 12 January 2017 and it was accompanied by a new consent signed on behalf of the Secretary for Justice. 

4.Arising from this application was the question as to whether the proposed amendment should be categorised as an amendment of substance.  If it was so categorised, a new consent would need to be filed together with the Re-Amended Indictment.

5.Mr Jonathan Man, for the prosecution, argued that the amendments were not ones of substance and were sought only to make various corrections to the counts in question.  He seemed to suggest in oral submission that if necessary a new consent could be filed and this would obviate the need for a ruling on the matter.  In fact, as will be apparent later, a second proposed Re-Amended Indictment was put before the Court together with a new Consent to Prosecute, which made the ensuing argument in relation to the first proposed re-amendments unnecessary.

6.Even though I invited defence counsel to make submissions to me on this issue, I did not receive any real complaint about whether the proposed amendments were ones of substance according to this principle.  They focused on other complaints about the counts and the indictment which I will discuss later.

7.The proposed amendments changed throughout the course of oral submissions.  It is necessary that I briefly describe them as they arose. 

8.The first re-amendments were as follows.  An amendment to Count 1 which was sought to remove the described substance as “nitrate salts” but otherwise leaving the description that the substances were “capable of producing a pyrotechnic effect”.  The amendment also included averring the plural rather than the singular in relation to substance so that it then became “certain explosive substances”. 

9.The next amendment was to Count 4 which involved correcting a typographical error. 

10.The next amendment after that was to Count 5 where it was proposed that the count be withdrawn. 

11.The last amendment was to Count 6, which as a consequence of Count 5 being withdrawn, was renumbered and became the fifth count and would no longer be an alternative to Count 5.  It was also proposed to amend the description of the certain explosive substances from “acetone, hydrogen peroxide, nitrate acid, potassium, nitrate, sugar and fluorescent tube heads” to “acetone, hydrogen peroxide, nitrate acid, potassium nitrate, sugar, five fluorescent tube heads, a coffee blender, a bottle and a cup”. 

12.In my view, the proposed amendments were not ones of substance. 

13.I should add that the possession counts (initially on the indictment as Counts 2, 3, 4 and 6) averred that the defendant in question knowingly had “in his possession or under his control” certain explosive substances.  The language of the statute, that is, section 55(1) states “knowingly has in his possession or custody or under his control” etc. As is apparent from this comparison, the averment that it was in the person’s “custody” had been left out.  In other words, it did not follow the language of the statute.  

14.By the end of the oral submissions, Mr Man also sought to make an appropriate amendment to ensure that the possession counts followed the language of the statute.

15.I should also mention that Mr Man confirmed with me that the Consent to Prosecute was signed pursuant to delegated authority.  He produced a copy of the relevant Gazette confirming the delegation.  The Gazette is No.22/86.

16.Counsel for the 1^st, 2^nd and 3^rd defendants raised objections to the first re-amendments and to the form of the indictment. 

17.Mr Randy Shek, for the 1^st defendant, complained that the proposed amendment to Count 1 followed the definition of an “explosive” as contained in the Dangerous Goods Ordinance, Cap 295.  In that Ordinance, “explosive” includes any substance used or manufactured with a view to producing a practical effect by explosion or “a pyrotechnic effect”.  He argued that the prosecution by adopting this definition, as they appeared to be doing, meant that the explosive substances in Count 1 were now particularised in the proposed amendment as “capable of producing a pyrotechnic effect”.  He argued that this was wide and misleading when compared with the definition of an “explosive substance” under section 52 of Part VII of the Crimes Ordinance, Cap 200, which defines explosive substance for the purpose of the offence under section 55.

18.That section reads that “an explosive substance shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement.” 

19.Mr Man took issue with this complaint.  He pointed out that the amendment merely removed the reference to “nitrate salts” but kept the rest of the phrase, namely “capable of producing a pyrotechnic effect”.  He further submitted that this amendment sought to reflect the state of the evidence of the prosecution case. 

20.Mr Man later in oral submission proposed new amendments to Count 1 and to the possession counts to which Mr Shek raised no objection.  I will refer to these amendments in their entirety as the second re-amendments.

21.Mr Douglas Kwok, for the 2^nd defendant, argued that as a result of the proposed first re-amendments, there was now an issue as to joinder.  He argued that the proposed amendment to Count 1 contravened Practice Direction 9.1.  He said that because the amendment did not specify the “explosive substances”, it could cover the substances mentioned in the other counts, for example, in Count 2 where it mentions “aluminium powder”.  He argued that by this proposed amendment, the prosecution had to justify the joinder of the related conspiracy count with the substantive counts, failing which the prosecution should select whether to proceed on the substantive counts or on the conspiracy count. 

22.As pointed out by Mr Man, the previous Count 1 where no issue of joinder had been taken, included the phrase “capable of producing a pyrotechnic effect”.  It is difficult to see how this was now an issue when it was not one before. 

23.Mr Kwok further argued that the proposed amendment created a different subject matter.  I do not agree. 

24.Notwithstanding that the proposed first re-amendment to Count 1 does not specify the substances, it is clear that Count 1 is dealing with a separate offence from the possession counts.  In any event, the prosecution justify the joinder on the basis that the conspiracy count is in relation to the five defendants conspiring to make explosive substances where the four other counts concern possession by the individual defendant concerned of the specified explosive substances.  In any event, the complaints raised by Mr Shek and Mr Kwok fell by the wayside with the second re-amendments.

25.Mr Kwok did not explain in any detail, if at all, the prejudice or the inconvenience to 2^nd defendant in contesting the case against him by the proposed amendments or the counts on the indictment, including the conspiracy count. 

26.From my own perusal of the papers, I am reinforced that no prejudice has or could result to the 2^nd defendant in conducting his defence and in receiving a fair trial. 

27.I note there was no accompanied application for severance by the defence.  Applications to sever are invariably made when the substantive counts add nothing to the conspiracy allegation but are simply sample counts relating to the carrying out of the conspiracy.  I do not see the additional counts as sample counts.  They concern specific instances of allegations of possession of explosive substances by the defendants concerned, that is, Counts 2, 3, 4 and 5.

28.Mr Kwok also argued that the proposed first re-amendment to Count 1 would result in an offence being charged which was not known to law.  I do not agree.  The offence is clearly known to law.  It is provided for under section 55(1).  The definition of “explosive substance” under section 52 as set out is inclusive and not exhaustive.  That is apparent from the wording of the definition.  In any event, the second re-amendment to Count 1 is much in the same character as the original Count 1.

29.Mr Haynes, for the 3^rd defendant, initially adopted the submissions of Mr Shek and Mr Kwok but later did not oppose the new amendments as reflected in the second re-amendments. 

30.Both Mr Thomas Iu, for the 4^th defendant, and Mr Keith Fung, for the 5^th defendant, did not raise any objection to the proposed amendments at any time and did not attach themselves to the submissions of counsel for the 1^st, 2^nd or 3^rd defendant. 

31.As I have indicated, at the resumed hearing of this application, Mr Man informed the Court that after consideration he proposed new amendments to the relevant counts, that is, the second re-amendments.  

32.Count 1 would be amended by referring to the explosive substance in the plural rather than the singular, namely “certain explosive substances” and by keeping the reference to “nitrate salts” but referring to it as “a mixture containing nitrate salts”.  This meant that Count 1 would now read “certain explosive substances, namely a mixture containing nitrate salts capable of producing a pyrotechnic effect”.  He also sought to amend the possession counts, Counts 2 to 5, by following the language of the statute with the adoption of the phrase “in his possession or custody or under his control”. 

33.I invited defence counsel to respond in light of Mr Man’s new suggested amendments.  Mr Shek initially said he maintained his objection but later withdrew his objection to the second re-amendments. 

34.Mr Kwok said he needed time to consider the impact the addition of the words “mixture” would have on Count 1 as well as the impact that the inclusion of “custody” would have on the possession counts concerning the 2^nd defendant.  I gave Mr Kwok time so he could consider the proposed amendments.  He maintained his objections but had nothing further to add.

35.From my own observation, it would seem that the second re‑amendments do not make any material changes to the case or cases that the defendants face, or at least to cause any prejudice or inconvenience to them in the conduct of their case, and more particularly any prejudice to receiving a fair trial. 

36.I am of the view that the second re-amendments do not offend any of the principles as submitted to me or cause any prejudice or inconvenience to the defence, and the joinder is justified as demanded by the interests of justice.  Accordingly, the second re-amendments are granted. 

Mr Jonathan Man, SADPP, and Mr Gary Leung, SPP of Department of Justice, for HKSAR

Mr Randy Shek, instructed by Bond Ng Solicitors, assigned by Director of Legal Aid, for the 1^st defendant

Mr Douglas Kwok, instructed JCC Cheung & Co., assigned by Director of Legal Aid, for the 2^nd defendant

Mr John Haynes, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the 3^rd defendant

Mr Thomas Iu, instructed by Jackson Ho & Co., assigned by Director of Legal Aid, for the 4^th defendant

Mr Keith Fung, instructed by Tang, Wong & Cheung, assigned by Director of Legal Aid, for the 5^th defendant