HKSAR v. Chan Yiu Shing and Others

(Ruling 13)

HCCC 41/2016

[2018] HKCFI 317

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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RULING AS TO THE 3^rd DEFENDANT’S ACQUITTAL OF THE PREVIOUS COUNT 5

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Introduction

1.In the ruling I gave on the admissibility of the 3^rd defendant’s alleged statement, I briefly mentioned the possible consequences of the 3^rd defendant’s acquittal of the previous Count 5 may have on his forthcoming trial.[1] 

2.The 3^rd defendant faced a charge of attempting to make explosives on 14 June 2015 but he was acquitted of it when the prosecution offered no evidence.  He also faced an alternative charge of possessing explosives on 14 June 2015 which the prosecution continue to press. The prosecution intimated that at trial in relation to the possessing charge it would seek to allege that the 3^rd defendant was attempting to make explosives even though he had been acquitted of that charge.

3.In my view, in relation to the possessing charge the prosecution can allege that the 3^rd defendant possessed explosives, or more accurately as stated in the particulars, possessed the specified ingredients, which were capable of making certain explosives.  It seems to me, that the prosecution cannot put its case on the basis that the 3^rd defendant attempted to make TATP on 14 June 2015, for that is not what he has been charged with, and in any event, he stands acquitted of that charge.

The acquittal of the previous Count 5

4.Before I gave my ruling on the amendments and the indictment on 7 February 2017, I confirmed with Mr Jonathan Man, for the prosecution, that the prosecution’s position was to offer no evidence on Count 5 in the Re‑Amended Indictment rather than severing the count from the indictment and dealing with it later.

5.The Re-Amended Indictment contained six counts. Count 1 alleged a conspiracy to make explosives against all the defendants.  Count 2 alleged possession of explosives against the 2^nd defendant.  Count 3 alleged possession of explosives against the 3^rd defendant.  Count 4 alleged possession of explosive against the 1^st defendant.  Count 5 alleged attempting to make explosives against the 3^rd defendant.  In that count, the explosive substance was particularised as triacetone triperoxide, commonly known as TATP.  Count 6 alleged, in the alternative to Count 5, possession of explosives against the 3^rd defendant. 

6.On 7 February 2017, the defendants were arraigned on the Re-Amended Indictment who variously pleaded not guilty to the counts.  More particularly, the 3^rd defendant pleaded not guilty to Count 5 on the Re-Amended Indictment.  Thereupon the prosecution offered no evidence on that count and the 3^rd defendant was accordingly acquitted of it.  See section 51A of the Criminal Procedure Ordinance, Cap 221.

7.The statement of offence of Count 5 on the Re-Amended Indictment was “Attempted to make explosives”, contrary to sections 55 and 159G of the Crimes Ordinance, Cap 200.  The particulars of offence were that the 3^rd defendant:

“…on the 14^th day of June, 2015, at Flat B, 2^nd Floor, Block 6, Costa Bello, Sai Kung, New Territories, in Hong Kong, attempted to make an explosive substance, namely Triacetone Triperoxide, commonly known as TATP.”

8.The Re-Amended Indictment was replaced by removing Count 5 on the Re-Re-Amended Indictment, the 3^rd defendant therefore faces the previous conspiracy count (the current Count 1) and the two possession counts (the current Counts 3 and 5).  However, as I have already noted, he now stands acquitted of the charge of the previous Count 5. 

9.I note that the previous Count 6 which is the current Count 5 on the Re-Re-Amended Indictment concerns the offence of possessing explosives against the 3^rd defendant.  The particulars of the offence read that the 3^rd defendant:

“…on the 14^th day of June, 2015, at Flat B, 2^nd Floor, Block 6, Costa Bello, Sai Kung, New Territories, in Hong Kong, knowingly had in his possession or custody or under his control certain explosive substances, namely acetone, hydrogen peroxide, nitric acid, potassium nitrate, sugar, five fluorescent tube heads, a coffee blender, a bottle and a cup.”

The legal principles

10.The rule against double jeopardy in general terms seeks to prevent a person from being put in jeopardy for an offence for which they have already been dealt with.  There are two aspects of the rule against double jeopardy.  This was succinctly explained by Ribeiro PJ in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 where he said:

“25. …First, there is the common law autrefois convict (or autrefois acquit) plea in bar which is a defence against a subsequent prosecution and which only arises in the narrowly defined situation where the elements of the second offence are the same as or included in the original offence. Secondly, there is the wider common law rule against double jeopardy whereby the Court has power to stay proceedings as an abuse of process if the subsequent charge involves an attempt to re-prosecute a person previously convicted or acquitted on the same or substantially the same facts. …”

11.See also Yeung Chun Pong v Secretary for Justice (2009) 12 HKCFAR 867. 

12.The recent case of R v J(JF) [2014] QB 561 has been relied upon by Mr Man in his submissions.  The defendant in that case pleaded not guilty to common assault, but before trial in the Magistrate’s Court, based on the latest medical evidence, the prosecution decided to add a charge of assault occasioning actual bodily harm.  The prosecution offered no evidence on the common assault and the charge was dismissed.  The defendant was committed to the Crown Court, and the issue of double jeopardy was taken.  The judge stayed the indictment.  The prosecution appealed against the ruling and the Court of Appeal held that the prosecution’s conduct in seeking to have the defendant tried on a more serious charge, when he had technically been acquitted on a lesser charge, was not in any way unfair or unjust, and that the defendant should be tried on the more serious charge. 

13.The Court of Appeal conducted a review of the leading case on autrefois acquit of Connelly v DPP [1964] AC 1254 and concluded that the ratio of the case was found in the judgment of Lord Devlin who stated at 1353:

“The doctrine of autrefois protects an accused in circumstances in which he has actually been in peril. It cannot, naturally enough, protect him in circumstances in which he could have been put in peril but was not.”

14.After discussing what was meant by being in peril,[2] the Court of Appealwent on to explain that when the prosecution is reorganising its case, which may include offering no evidence to an original charge, and no objection is taken, it cannot be said that the defendant is in peril in such circumstances.[3] 

15.The Court of Appeal was guided in its judgment by the case of R v Dabhade [1993] QB 329 which set out the following propositions:

“3. If, however, the summary dismissal of the charge or count is because it is apparent that it is defective, either as a matter of law (e.g. for duplicity) or because the evidence available to the prosecution on any view, given the application of proper legal principles, is insufficient to sustain a conviction on the charge as laid, then, in our view, it cannot be properly said that the defendant has ever been in jeopardy of conviction: see Director of Public Prosecutions v Porthouse [1989] R.T.R. 177 and Williams v Director of Public Prosecutions [1991] 1 W.LR. 1160. As a matter of general principle, it does not seem to us to make any difference whether the evidence that the prosecution might otherwise have wished to rely upon is excluded because of some rule of law or statute (as in the Road Traffic Act cases cited) or simply because the evidence on its face is incapable of proving the particulars of the offence alleged.

4. If, moreover, the context in which a charge is summarily dismissed is a rationalisation or reorganisation of the prosecution’s case, so that, no doubt in recognition of the difficulties that may lie ahead in the successful prosecution of the original charge, it is decided to substitute therefor a new charge which is regarded as more appropriate to the facts, then the consensual dismissal of the original charge, upon the substitution of the new one, will not give rise to the application of the doctrine of autrefois acquit: Broadbent v High [1985] R.T.R. 359. Admittedly, the prosecution have not been put to their election; but that is merely because it is at their instance that the new and substituted charge is preferred.  Apart from anything else, including the fact that to hold otherwise would be contrary to common sense, it is plainly undesirable that the prosecution should be obliged to keep alive a charge upon which they have no intention of seeking a conviction merely to meet any subsequent attempt to apply the doctrine of autrefois acquit in circumstances which are both technical and without merit. …”

16.While the rule against double jeopardy prevents a defendant from being prosecuted for an offence on the same or substantially the same facts as in a previous prosecution for which he was acquitted, evidence which is relevant on a subsequent prosecution is not inadmissible because it showed or tended to show that the defendant had in fact been guilty of a previous offence of which he had been acquitted: R v Z [2000] 2 AC 483.

17.See also R v Yeung Chi-sing [1993] 1 HKCLR 95 where the Court of Appeal addressed the issue of the prosecution adducing evidence against the applicant in relation to an offence of possession of dangerous drugs when he had been previously acquitted of another offence of possession of dangerous drugs to which such evidence was relevant.  In that case, the Court held that the prosecution by adducing the evidence were not seeking to prove that he had been in possession of the drugs for which he had been acquitted.  The evidence was adduced to show knowledge of the applicant in relation to the contents of a carton. 

18.It is not the case that the 3^rd defendant in these proceedings is put in double jeopardy because of the current Count 5, following the acquittal of the previous Count 5.  It is more to do with the fundamental proposition that a person who has been acquitted of an offence cannot stand accused of it again.  The Court of Final Appeal in Chan Ka Man v HKSAR (2008) 11 HKCFAR 614 discussed this issue at paragraph 12 where Lord Woolf NPJ, with whom the other judges agreed, stated:

“12. …It is undoubtedly true that if a person has been acquitted of an offence, he has been found not guilty of that offence and it is never right to suggest that he has been found guilty and convicted of the offence. However, there can be situations where it would be quite contrary to the reality of the situation to suggest that he could not, because of the acquittal, in fact have committed the offence. Take as an example a situation where he is acquitted on appeal because at the trial there was a misdirection by the judge and the Court of Appeal therefore quashed the conviction and substituted for that verdict an acquittal. The acquittal in those circumstances would not necessarily mean that the jury had not accepted the evidence of the prosecution. They could have done so but because of the misdirection, it would be unsafe to uphold the conviction. This was recognized by the House of Lords in the case of R v Z [2000] 2 AC 483. …”

The submissions of the parties

19.It is important to appreciate that the authorities that have been put forward in submission deal with situations where the rule against double jeopardy has been invoked, resulting in the charge in question not being proceeded with, or in the proceedings being stayed. Notwithstanding the acquittal of the previous Count 5, in my view there is no bar to the prosecution of the 3^rd defendant on the current Count 5 or adducing evidence that may have been relevant to the previous Count 5. 

20.Mr John Haynes, counsel for the 3^rd defendant, in his submissions went beyond the issue that the court had to resolve.  He complained extensively about the adverse pre-trial publicity in relation to this case in reference to Count 5.  This issue had already been ruled on by me in my decision dated 28 February 2017.  I refused an application to permanently stay the proceedings because of the pre-trial publicity.  I considered that an appropriate direction from the court could reasonably be expected to remove any risk of prejudice as a consequence of the pre-trial publicity.  A proposed direction to the jury panel was attached to my decision.

21.Mr Haynes also submitted that the current Count 5 should be permanently stayed, or the reference to the ingredients for making TATP should be removed from the particulars of the offence, on the basis of the acquittal of the previous Count 5.  It was unclear according to what legal principle this submission was made, although it would appear it was under the rubric of the rule against double jeopardy. 

22.I find that there is no support for this submission according to the relevant legal principles.  However, there is an issue as to how the prosecution can put its case in relation to the current Count 5, in light of the acquittal of the previous Count 5.

23.Mr Man in his submissions acknowledges that the prosecution are not contending that the 3^rd defendant had in fact committed the previous Count 5.  He relies on the case of R v J(JF) to submit that the prosecution should be allowed to put to the jury that the 3^rd defendant possessed some of the items specified in the current Count 5 for the purpose of making TATP.  I agree, to this extent, that the prosecution can put its case on the basis that the specified ingredients are capable of making certain explosives, including TATP.  That is how the prosecution have particularised the current Count 5. 

24.In accordance with this Court’s ruling, the prosecution provided the following particulars in relation to the current Count 5:

“Nature of explosive substances capable of being made: (a) TATP, (b) explosive substances capable of producing pyrotechnic effect and (c) detonating device.

Quantity of explosive substances capable of being made: For (a), according to the witness statement of Dr Billy Leung dated 13 December 2016, in the presence of sufficient hydrogen peroxide and acid, 190 ml of acetone (found in D3’s home) would theoretically produce about 28 g of TATP.  For (b) and (c), the prosecution are not able to specify the exact quantity of explosive substances to be produced because it depends on a series of factors unknown to the prosecution, including the exact formulae or proportions of ingredients to be used.”

25.It is on the basis of the particulars above that the prosecution is putting its case against the 3^rd defendant and to that extent the prosecution can do so.

26.The prosecution can put their case, if this can be shown, on the basis that the explosive substances particularised in the current Count 5 are ingredients that can make TATP but they cannot put their case on the basis that on 14 June 2015, the 3^rd defendant attempted to make TATP for he has been acquitted of that offence.  In any event, he is only charged with possessing explosives. 

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

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