HKSAR v. Chan Yiu Shing and Others

(Ruling 12)

HCCC 41/2016

[2018] HKCFI 316

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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D I R E C T I O N

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1.This is to confirm this Court’s direction to the prosecution on 23 February 2017 that it provide the defence with further and better particulars in relation to the conspiracy count (Count 1) and the possession counts (Counts 2 to 5).

2.As I have previously noted in the course of these proceedings, since this case was committed to the Court of First Instance for trial, the prosecution has filed 10 additional bundles of evidence, most of which was filed just prior to and during the 18 days trial of the defendants which commenced on 6 February 2017.  On 23 February 2017, the case was adjourned to 18 August 2017 for further argument, and for the trial to commence on 1 September 2017.  The trial did not get underway on this occasion because of numerous issues arising as a result of the state of the prosecution case, and numerous applications from the defence.

3.The defence requested an opening from the prosecution but this was refused.  It necessitated a direction from me that the prosecution provide to the defence a case summary in relation to Count 1 (the conspiracy count). 

4.A summary of evidence supporting Count 1 was produced by the prosecution on 15 February 2017.  However, issues continued to arise due to the state of the prosecution case and reliance by the prosecution on certain evidence.  It necessitated a further direction from me on 23 February 2017, when the case was adjourned, that the prosecution provide to the defence further and better particulars in relation to the conspiracy count as well as the possession counts.

5.The provision for further and better particulars in relation to a conspiracy count is not uncommon, especially when the court is satisfied that without them the conduct of the defence will be in some way embarrassed or prejudiced.  Whilst a request for particulars can usually be found in the disclosed evidence, in the prosecution’s opening, or in both, a direction that they be provided to the defence may need to be given, particularly when the prosecution case is unclear or shifts ground.

6.It is therefore imperative that the court steps in and ensures that the defence know precisely the case it has to meet and to stop the prosecution shifting its ground as to their case.  See R v Landy [1981] 72 Cr App R 237; R v Hancock [1996] 2 Cr App R 554.  Although these cases were concerned with conspiracy to defraud, the principles as stated by them have general application, including to a case involving a conspiracy to commit a statutory offence.

7.The importance of particulars for a conspiracy offence is that they provide an outline of the prosecution case by specifying, the nature of the case that the prosecution seek to prove; the principal overt acts from which the prosecution invite the jury to infer that there was an agreement as alleged; and that a particular defendant was a party to the agreement. It is fundamental that particulars addressing the essential element of the conspiracy to be proved need to be clear and precise, whereas the overt acts from which the jury is invited to infer the existence of an agreement will depend upon the evidence presented during the trial.  However, any change of the case should not disadvantage or prejudice a defendant in the conduct of his defence so as to deprive him of a fair trial.  

8.In the present case, the prosecution is to provide the defence particulars specifying, the nature and object of the conspiratorial agreement, including the nature and quantity of the explosive substance(s) that the prosecution allege was the object of the conspiratorial agreement; the principal overt acts the prosecution allege that infer the conspiratorial agreement; and the case the prosecution seek to prove that a particular defendant was a party to the conspiratorial agreement. 

9.The prosecution is also to provide the defence particulars specifying the nature and quantity of the explosive substance(s) the prosecution seek to prove was capable of being made in relation to each of the possession counts. 

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