HKSAR v. Ngai Hon Kwong

HCCC 78/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 78 OF 2016

________________________

________________________

Before:  Hon Zervos J in Court

Dates of Hearing:  26 and 27 July 2017

Date of Judgment:  11 August 2017

________________________

SECTION 16 APPLICATION

________________________

Introduction

1.This is an application by the accused pursuant to section 16 of the Criminal Procedure Ordinance, Cap 221, (the CPO), for his discharge in relation to the count of murder on the indictment laid against him. The circumstances of this application are unusual because it was made after the accused had a previous conviction for murder quashed on appeal by the Court of Appeal, following which it ordered that the accused be retried. See HKSAR v Ngai Hon Kwong [2016] 2 HKLRD 149.

2.The basis of the application, as I understand it, is that it is contended that the Court of Appeal, in scrutinising the evidence at trial, concluded that the testimony of a prosecution witness, on whose evidence the prosecution case rested, was not sufficient to establish to the requisite standard the guilt of the accused on the murder count or any alternative count.  It is also contended that the Court went on to find that the evidence given by the accused during trial might be capable of supporting the murder count or the alternative count of manslaughter by gross negligence.  It is suggested that the Court ordered that the accused be retried on the basis of his evidence.

3.Briefly, the Court of Appeal by its decision quashed the accused’s conviction for murder because the trial judge did not leave to the jury the alternative count of manslaughter by gross negligence.  It was the prosecution case that the accused deliberately doused the deceased with inflammable liquid which he ignited.  The deceased sustained severe burns and subsequently died from his injuries.  The defence case was that the splashing of the inflammable liquid onto the victim, and the ignition of it, occurred by accident. 

Submissions for and against the application

4.Mr Robert Lee, SC, who together with Mr Randy Shek, appear for the accused, argued that if the only evidence capable of supporting a conviction on the murder count or any alternative count could only come from the testimony of the accused, as stated by the Court of Appeal, it follows because the accused is not obliged to give evidence again at his retrial, that the prosecution case must fail to support “a prima facie” case on the murder count or any alternative count.  He submitted that the accused should therefore be discharged under section 16. 

5.Mr Steven Kwan, who together with Ms Jacqueline Lam, appears for the prosecution, opposed the application on two grounds. First, he contended that this Court no longer has jurisdiction to entertain the application or to order the discharge of the accused under section 16. Secondly, he submitted that the evidence disclosed in the documents is sufficient to satisfy the test under section 16 not to discharge the accused.

The relevant statutory provisions

6.So far as material, section 16 of the CPO reads:

“Discharge of accused after committal without a hearing

(1) Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap. 227) or proceedings stand transferred to the court for trial under section 77A(6) of the District Court Ordinance (Cap. 336), the accused may at any time—

(a) if the Secretary for Justice does not institute proceedings within the period specified in section 14(1)(a) or (aa), as the case may be, after the expiration of that period; or

(b) after the filing of the indictment and prior to his arraignment thereon,

apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap. 227) or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.

(2) If an application is made under subsection (1) in the circumstances specified in paragraph (a) thereof—

(a) the judge may, of his own motion or on the application of the accused, require the Secretary for Justice to file indictment within such time, and on such terms (if any) as to costs as may be specified in the order;

(b) subject to any order under paragraph (a), the Secretary for Justice may at any time after an application is made under subsection (1), and before the final determination thereof, file an indictment, but the judge may award costs against him if the applicant has incurred any costs by reason of the late filing of the indictment.

(3) The judge may after perusal of the documents and after hearing any representations which the accused and the Secretary for Justice may wish to make, direct that the accused shall not be arraigned on the charge, and direct that he be discharged.

…

(6) Where an indictment has been filed references in this section to the charge shall be construed as references to the charge as set out in the indictment.

…”

7.Section 14(1)(a) and (aa) of the CPO reads:

“(1) The Secretary for Justice, if he sees fit to institute criminal proceedings, shall institute such proceedings in the court against the accused person as to him may seem legal and proper—

(a) in the case of a committal for trial under section 80C(4) of the Magistrates Ordinance (Cap. 227), within 7 days of such committal;

(aa) in any case where pursuant to an order of transfer made under section 77A of the District Court Ordinance (Cap. 336), proceedings stand transferred to the court for trial under subsection (6) of that section, within 21 days of the order; and

…”

8.The procedure to be followed for a section 16 application is set out in Criminal Procedure (Applications Under Section 16) Rules, (Cap 221G).

9.Apart from the power to discharge the defendant by reason of a failure by the Secretary for Justice to institute proceedings within the time specified in section 14(1)(a) or (aa) of the CPO (section 16(1)(a)), the defendant can apply to be discharged “after the filing of the indictment and prior to his arraignment thereon” (section 16(1)(b)).  The grounds on which the discharge can be made are that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance, Cap 227, (the MO), (in the case of a committal from the Magistrate’s Court), and delivered to the Registrar under section 10A (in the case of a transfer from the District Court), supplemented by any further evidence from the Secretary for Justice, “is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge”.

Approach to a section 16 application

10.The approach to be taken by a court when dealing with a section 16 application was summarised by Stock VP in Secretary for Justice v Tang Sau Ling [2013] 2 HKLRD 174, as follows:

“19. The appropriate approach to s.16 applications may usefully be gleaned from the judgment of Silke V-P in A-G v Phung Van Toan, adopting for the purpose of s.16, the test applied by Kempster JA in A-G v Li Fook Shiu Ronald in relation to s.22 of the Complex Commercial Crimes Ordinance (Cap.394) which empowers an accused at any time before the empanelment of the jury to apply to the judge for his discharge on the ground that the evidence disclosed is insufficient to establish a prima facie case against him for the offence with which he is charged. Kempster JA said, of a judge hearing a s.22 application that:

In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not 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 R v Galbraith. Both can critically be affected by later evidence or a 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.

20. Importantly for present purposes, Silke V-P added this:

At the time of this type of application no word of oral evidence has yet been heard.  A court faced with such an application is not enjoined to consider the quality of the evidence.  To do so would be to usurp the function of the jury.”

Procedural history

11.The accused was arrested and charged for the murder of the deceased which allegedly took place on 29 May 2013.  He was brought before the Magistrate’s Court, and on 17 January 2014, he was committed for trial on the offence of murder under section 80C (4) of the MO. 

12.An indictment was filed on 24 January 2014 with the Court of First Instance in accordance with section 24A of the CPO.  The indictment was amended on 26 August 2014.  He was arraigned on that indictment on the first day of trial on 15 October 2014 where he entered a plea of not guilty. 

13.After his trial before Deputy Judge Stuart-Moore and a jury on 28 October 2014, he was found guilty of murder by the jury.  The accused appealed his conviction to the Court of Appeal. 

14.On 5 February 2016, the Court of Appeal allowed his appeal and quashed the conviction, and ordered that the accused be retried on a fresh indictment.  The Court also ordered that the case be listed before the listing judge for the fixing of trial dates within 28 days. 

15.On 16 February 2016, a fresh indictment was filed and on 2 March 2016, the retrial was fixed to commence on 28 October 2016 before Andrew Chan J and a jury.  There followed a series of pre-trial review hearings which resulted in the case eventually being relisted for trial on 2 March 2017 before this Court, fixed to commence on 30 October 2017 with a pre-trial review fixed for 7 April 2017. 

16.The Court was notified of the section 16 application at the pre-trial review on 7 April 2017 when it was fixed for hearing with directions as to the filing of written submissions by the parties. 

The jurisdictional issue

17.I will deal with the jurisdictional issue first for in my view this application fails on this ground alone.  Mr Kwan submitted that there is no jurisdiction to order a discharge of the accused after arraignment on an indictment preferred and filed upon the committal papers.  He relied on the wording of section 16 where it states:

“Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap 227) …, the accused may at any time … after the filing of the indictment and prior to his arraignment thereon, apply to a judge for his discharge …”

18.He argued that when an accused has been committed for trial under section 80C(4) of the MO, he may make an application under section 16, after the filing of the indictment and prior to his arraignment on that indictment. 

19.It is important to note the procedure leading up to a possible section 16 application.  When an accused is committed for trial in the Court of First Instance on the basis of a paper committal, that is, without a preliminary inquiry, the committing magistrate is obliged, amongst other things, to inform the accused that he has a right to apply once only to a judge for discharge on the grounds that there is no prima facie case against him.[1]  If an accused elects a preliminary inquiry, the committing magistrate is obliged to put the accused upon his trial for an indictable offence if there is sufficient evidence, or “the evidence given raises a strong or probable presumption of the guilt of the accused”.  See section 85(2) of the MO. 

20.I agree with Mr Kwan that the wording of section 16(1)(b) is critical when considering the jurisdiction of the application.  It provides that where an accused was committed for trial under section 80C(4) of the MO, the accused may at any time, “after the filing of the indictment and prior to his arraignment thereon”, apply to a judge for his discharge.  Section 80C(4) is, as is explained, the situation where the accused has been committed for trial by paper committal.  It seems clear to me that the purpose of section 16 is there to provide an accused the means to apply to be discharged on the grounds of insufficiency of evidence following a paper committal where there has not been a challenge to the evidence in the committal proceedings by way of preliminary inquiry.[2]

21.Section 16(1) further provides that when an application is made to a judge for the accused to discharge, it is “on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the MO or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.” 

22.It is quite clear that the application requires the judge to make an assessment of “the documents”.  Those documents are the committal documents as supplemented by additional evidence filed with the Court of First Instance.  This was emphasised by the Court of Appeal in Attorney General v Phung Van Toan and Others [1992] 1 HKCLR 56, where Silke VP, giving the judgment of the court, said:

“Under the provisions of s.16 of the Criminal Procedure Ordinance a judge may (sub-s.(3)(1)), after a perusal of “the documents” and having heard representations, direct that an accused should not be arraigned on the charge and further direct that he be discharged. The expression “the documents” can only mean the documents handed to the court under the provisions of s.80(c)(1) of the Magistrates Ordinance to which we have already referred. It is upon these that an accused contends an insufficiency to establish a prima facie case thus triggering off the application under s.16. But s.16(1) also contains the important proviso that “the documents” are to be read “with any further evidence the Attorney General has notified the accused he will seek to have admitted at the trial”.”

23.Following the accused’s committal for trial, an indictment charging him with the offence of murder was filed on 24 January 2014.  The indictment was subsequently amended on 26 August 2014.  He was arraigned on that indictment on the first day of trial on 15 October 2014 where he entered a plea of not guilty.  Prior to the accused’s arraignment, there was no section 16 application.  He stood trial for the offence of murder, for which he was convicted but had his conviction quashed on appeal.  The Court of Appeal ordered a retrial on a fresh indictment for the offence of murder.  This was provided for by sections 83E and 83F of the CPO. 

24.In my view, the accused has been previously arraigned on the indictment first filed against him and section 16(1)(b) cannot be invoked.  The Court is therefore without jurisdiction.

Whether a successful appeal invalidates the previous indictment

25.I do not agree with Mr Lee’s submission that the quashing of a conviction by the Court of Appeal under section 83 of the CPO renders the filing of the previous indictment and the arraignment thereon, invalid or a nullity. 

26.There is simply nothing in the language of section 83 to suggest such a proposition.  Section 83(2) and (3) provide that in the case of an appeal against conviction the Court of Appeal shall, if it allows the appeal, quash the conviction, and that such an order, except when under section 83E the appellant is ordered to be retried, “operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal”. 

27.It should be noted that section 83E of the CPO empowers the Court of Appeal to make an order that the appellant be retried, if it appears to the Court that the interests of justice so require.

28.It is a requirement under section 83F of the CPO that a person who is to be retried for an offence in pursuance of an order under section 83E shall be tried on a fresh indictment “preferred by direction of the Court of Appeal”. 

29.This simply provides another means by which an indictment is preferred against an accused.  It does not invalidate the previous indictment or the arraignment thereon, and a fresh indictment preferred by direction of the Court of Appeal is not in contemplation under section 16. 

The documents under consideration

30.Mr Lee submitted that the phrase in section 16(1) “on the grounds” allows the accused when making a section 16 application to submit additional material relevant to the interpretation of “the evidence disclosed in the documents”.  He also suggested that this was also permitted by the phrase in section 16(3) “after hearing any representations”.  He contended that as the accused could make “any representations”, this included submitting legal authority which in this instance included the Court of Appeal’s decision in relation to the accused’s appeal and the quashing of his conviction.  He points out that in that decision, the Court analysed the evidence in addressing the ground of appeal which he said scrutinised the “legal quality” of the evidence of the main prosecution witness which should be taken into account by this Court when considering “the evidence disclosed in the documents”. 

31.Whilst relevant authority may be submitted to the Court in making representations, it is in relation to “the documents” under consideration.  The documents are clearly a reference to the committal papers together with any other evidence filed by the Secretary for Justice as provided under section 16(1). 

The New Zealand authority of Bain

32.Mr Lee relied on the New Zealand case of R v Bain, CRI 1994-012-217294, 2 March 2009, where the New Zealand High Court addressed the issue as to whether they could invoke the power under section 347 of the New Zealand Crimes Act 1961 to determine whether the case should proceed or not in the face of an order for retrial by the Privy Council which had allowed the defendant’s appeal and quashed his previous convictions for murder. 

33.The case is of no assistance as the statutory provision that the court was concerned with is different to section 16.  From my reading of section 347, there is no restriction as to when an application can be made to direct that either no indictment be filed, or if an indictment has been filed, direct that the accused should not be arraigned thereon.  In any event, section 347 is not in the terms as contained in section 16.

The evidential issue

34.The main prosecution witness made several statements in which she describes the events surrounding the killing of the deceased.  In one passage in a statement made at 00:20 hours on 30 May 2013 (soon after the incident on 29 May 2013), she said:

“Suddenly, I heard [the defendant] shouting, “You mother fucker still sleeping here?” Then I got up and saw [the defendant] holding a transparent plastic bottle in his hands and splashing a liquid onto [the deceased]’s trunk and head twice, causing him wet all over. Then [the deceased] stood up, and [the defendant] lit a fire (but I couldn’t see what sort of lighter [the defendant] used). I saw that [the deceased]’s whole body was immediately set on fire.”

35.In another passage in a statement made on 13 June 2013, she said:

“Later, only when [the defendant] said loudly, ‘Mother-fucking, still sleeping.’ did I wake up. I saw [the defendant] splash [the deceased] with some liquid and then set [the deceased] on fire.

36.She also made another statement on 9 June 2014, where she refers to the incident and that after the defendant had splashed liquid twice onto the deceased, “I saw [the defendant] making a speedy move, reaching his hand out to [the deceased]’s upper body.  I then saw [the deceased]’s entire body in flame.” 

37.There was evidence that the occupants of the premises regularly took drugs.  The accused in his caution statement admitted that he was a regular abuser of drugs and that he had taken Ice on the day of the incident.  He explained that he consumed Ice by smoking it which involved lighting the drugs.  The prosecution documents include evidence from a forensic scientist who carried out certain scientific tests on the flammable liquid concerned.  From his tests, a lit cigarette would not be enough to ignite the flammable liquid.  He was of the opinion that it would require a naked flame. 

38.Mr Lee concedes that on the evidence of the prosecution documents, there is a prima facie case of murder against the defendant.  He relies on the analysis of the evidence by the Court of Appeal to support the section 16 application.  I reject this on two bases.  First, the Court of Appeal was not considering the prosecution documents as required under section 16.  Secondly, the Court of Appeal was discussing the evidence in addressing a specific ground as to whether the alternative count of manslaughter by gross negligence should have been left to the jury.  It was not addressing a ground of appeal complaining about the sufficiency of evidence of the prosecution case. 

39.McWalters JA, who gave the judgment of the Court of Appeal in Ngai Hon Kwong, indeed scrutinised the evidence given at the trial of the present case, but did so in addressing the ground of appeal whether the trial judge failed to direct the jury that the applicant may be convicted of the lesser offence of manslaughter by gross negligence.  He concluded that the alternative verdict of gross negligence manslaughter should have been left to the jury, and in the circumstances of the case, the failure of the judge to do so was a material misdirection.  In the preceding paragraph, he said:

“80. This was not a case of whether there was a sufficiency of evidence to ground the alternative verdict. The evidence was clearly there. Whether the jury would find manslaughter or murder would depend on how the jury analysed the evidence and determined what evidence they accepted.”

40.Mr Lee argues that the Court of Appeal concluded that there was a case to put to the jury on the count of murder or the alternative count of manslaughter by gross negligence because of the fact that the defendant had given evidence at trial.  In the course of this application, he submitted that the defendant would not be giving evidence at his forthcoming trial, so therefore because of the Court of Appeal’s assessment of the evidence of the main prosecution witness, and the fact that the defendant will not give evidence at his trial, this meant that there was not sufficient evidence to support a conviction for murder or any alternative offence. 

41.At trial, the main prosecution witness did not give evidence in the terms as set out in her statements, in that she did not testify as to how the inflammable liquid was ignited and by whom.  I note that she was not pressed on the matter and no application was made for the witness to refresh her memory.  It is possible that at the retrial, the witness may give evidence in accordance with what she had previously said in her statements which would go further than her testimony at trial.  If she does, it may very well be the subject of cross-examination. 

42.However, under section 16(1), the test to be applied was what a jury properly directed “could, may or might” properly conclude on an examination of the evidence in the documents placed before this Court.  The documents disclosed a prima facie case of murder and also of the alternative count of manslaughter. 

Conclusion

43.For the reasons given, this application therefore fails, and is dismissed.

Mr Steven MW Kwan and Ms Jacqueline Lam, counsel on fiat, for HKSAR

Mr Robert Lee, SC, leading Mr Randy Shek, instructed by Tang, Wong & Chow, assigned by Director of Legal Aid, for the accused