HKSAR v. Tsoi for

HCCC 312/2019

[2021] HKCFI 1670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 312 OF 2019

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BETWEEN

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Before:  Deputy High Court Judge D Yau in Chambers

Dates of Hearing:  29 March and 28 May 2021

Date of Ruling:  11 June 2021

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R U L I N G

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Ruling on amendment

1.This is my ruling on the prosecution’s application to amend count 1 of the indictment upon the defendant’s retrial.

Background

2.In the first trial, the defendant faced one count of trafficking in dangerous drugs and three counts of dealing with proceeds of an indictable offence (colloquially known as money laundering).

3.The background of the case is that, a parcel containing dangerous drugs were intercepted and a controlled delivery to the recipient address (“the premises”)  was conducted.  A man, Diao, received the delivery of the parcel and was arrested.  He was later charged with trafficking in the drugs inside that parcel.

4.A large quantity of an assortment of dangerous drugs were found upon search of the premises.

5.Based on the fact that the defendant was the cohabitant of Diao, and there being monetary dealings in their joint bank account (count 2), in the defendant’s personal account (count 3), and there being about 300-odd thousand dollars of cash (count 4)  found at the premises, the defendant was charged with trafficking in the drugs found on the premises (unamended count 1); for money laundering in relation to the dealings concerning the joint account, the defendant’s personal account, as well as the cash found.

6.The defendant was acquitted by the jury on counts 3 and 4, but they were not able to return a verdict on counts 1 and 2.  Hence the present retrial.

7.The prosecution now applies to amend count 1.  Instead of alleging that the defendant had taken part in a joint enterprise with Diao in trafficking in the assortment of drugs found on the premises, the prosecution now seeks to prove that the defendant had conspired with Diao to traffic in an assortment of dangerous drugs.  The drugs they conspired to traffic in are not the drugs found in the premises, but the drugs that were mentioned in their WhatsApp communications.

Applicable legal principle

8.This is not a retrial ordered by the Court of Appeal pursuant to s83E of the Criminal Procedure Ordinance, Cap 221.  As such, the conditions imposed by that section in relation to what offence the person may be retried for do not apply.

9.The prosecution base their application upon s23(1)  of the Criminal Procedure Ordinance, which reads as follows:

“(1)  Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.”

10.The prosecution has not identified any defect in the indictment, nor in the original count 1.  They refer to the English Court of Appeal case of R v Booker [2011] 1 Cr App R 26 for the proposition that the court nevertheless retains a discretion to permit an amendment.

11.The passage relied upon has been considered, and applied, by Madam Justice Barnes in the case of HKSAR v Mak Wan-ling [2020] HKCFI 2424; HCCC 437/2015, where the learned judge summarized the Hong Kong position of the applicable principles when considering the issue of amendment of the indictment at a retrial as follows.  There the jury was not able to reach a verdict on one count of manslaughter and a retrial was required.  The amendments sought, and granted, were to the particulars:

“36. The trial judge retains a discretion in deciding whether to permit the amendment of the indictment but fairness to the defendant must be central to the decision: Booker. Whilst the prosecution may ‘remould’ its case on a retrial, it must retain the basic factual premises that underline the prosecution’s case. A retrial should not be used by the prosecution to reconstruct, supplement or ‘patch up’ its case: Hazmy and the cases cited therein. In considering the application, the judge is obliged to make such amendment as necessary to meet the circumstances of the case, unless the required amendments cannot be made without injustice: Chan Hung-hoi.” (Emphasis added)

12.Mr David Ma, for the defendant, accepts that there is a discretion for the judge to permit the amendment being sought, but he submits that the prosecution is seeking to patch up their case by way of the proposed amendment, and that given the different nature between a conspiracy charge and a simple charge for the underlying offence, the defendant will suffer unfairness if the amendment is allowed.

Applying the general principles to the present case

13.Unlike in Mak Wan-ling, the proposed amendment in the present case is a complete and fundamental reconstruction of the prosecution case, not a simple remoulding or patching up.

14.Instead of being charged with the trafficking of the drugs found in the premises, the defendant will face a different charge concerning different batches of drugs, which do not include the drugs found in the premises that were the subject matter of the original charge.

15.The proposed amendment, if allowed, would create a new count 1 that is much wider in its ambit and further in its reach than the original count 1.

16.While it is recognized that “defendants are often at a disadvantage at a retrial, as compared with the trial, because of supervening events or better preparation of the prosecution case[1]”, with the new count, the defendant will be facing a different charge and will have to re-consider his line of defence anew and whether it may be affected in any unforeseen way by the previous one.

17.Although the prosecution has confirmed that they will be adducing the same evidence as they had in the first trial and that there is to be no new evidence, it does not necessarily mean that there will be no unfairness to the defendant.

18.The evidence may be the same, but they will be utilized by the prosecution fundamentally differently in a conspiracy charge.  The defendant will have to deal with an entirely different angle of approach by the prosecution to the same evidence.  Take the WhatsApp communications as a stark example.

19.Although the WhatsApp communications between the defendant and Diao that the prosecution had relied on in the first trial will still be relied on, under the new count, they will now be used to prove not only the defendant’s knowledge about various kinds of drugs, but also as circumstantial evidence in support of the prosecution’s case that the defendant had conspired with Diao to traffic in the drugs mentioned in those messages.

20.In the first trial, count 1 focused on the drugs found on one particular day in the premises.  With the proposed new count 1, the defendant will have to deal with the full period that the WhatsApp messages spanned, and in the context of the proposed new charge period of 17 September 2016 to 14 May 2018, a period of 20 months.

21.Based on the above observations, I find that to allow the prosecution to so completely reconstruct their case against the defendant by way of their proposed amendment will result in unfairness to the defendant and as such, I refuse the prosecution’s application to amend count 1 as proposed.

Mr Michael Arthur and Mr David Cheung, Counsel-on-fiat, for Department of Justice, HKSAR

Mr David Ma and Mr. Winson Yung, instructed by Huen & Partners, for the Defendant