Re Secretary for Justice
Read the full judgment text of CASJ 1/2021 on BabelCite. This CASJ judgment was delivered on 28 October 2022.
1. By three separate applications arising out of three different cases [1] , the Secretary for Justice (“the Applicant”) has referred a common question of law to this Court, pursuant to section 81D of the Criminal Procedure Ordinance, Cap 221 (“the Criminal Procedure Ordinance”). On the basis of the identical questions involved [2] , the Applicant has also sought to have the three applications heard together, which the Court so ordered on 22 October 2021. The Court was further satisfied that, de
Cited by 2 cases · Cites 9 cases
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CASJ 1, 2 & 3/2021 [2022] HKCA 1635 CASJ 1/2021 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL SECRETARY FOR JUSTICE’S REFERENCE NO 1 OF 2021 ________________________
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________________________ AND CASJ 2/2021 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL SECRETARY FOR JUSTICE’S REFERENCE NO 2 OF 2021 ________________________
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________________________ AND CASJ 3/2021 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL SECRETARY FOR JUSTICE’S REFERENCE NO 3 OF 2021 ________________________
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________________________ (Heard together) Before: Hon Macrae VP, Zervos and A Pang JJA in Court Dates of Hearing: 14 June 2022 and 26, 27 and 29 July 2022 Date of Judgment: 28 October 2022 ________________________ J U D G M E N T ________________________ Hon Macrae VP (giving the Judgment of the Court): Table of Contents 1.By three separate applications arising out of three different cases[1], the Secretary for Justice (“the Applicant”) has referred a common question of law to this Court, pursuant to section 81D of the Criminal Procedure Ordinance, Cap 221 (“the Criminal Procedure Ordinance”). On the basis of the identical questions involved[2], the Applicant has also sought to have the three applications heard together, which the Court so ordered on 22 October 2021. The Court was further satisfied that, despite the Applicant’s attempts to find the respondents, none of them could be located, since they had left Hong Kong immediately following their directed acquittals[3]. Accordingly, this Court directed that these applications should proceed in the absence of all respondents, who are required nevertheless to remain anonymous by virtue of the statutory requirement in section 6 of the Criminal Procedure (Reference of Questions of Law) Rules, Cap 221E. 2.At the hearing on 14 June 2022, the Court extended the appointment of Ms Maggie Wong SC as amicus curiae to encompass all three applications, as distinct from CASJ 1/2021 alone. Meanwhile, the Court took the opportunity to raise certain issues, on which it invited further specific argument from the parties to be incorporated in a set of consolidated submissions by each party. Accordingly, Mr William Tam SC (with him Mr Ira Lui and Ms Audrey Parwani) for the Applicant, as well as Ms Wong, each filed extremely comprehensive written submissions for the resumed hearing on 26 July 2022. B. Brief background; and the questions of law 3.Each of the four respondents in these applications had been indicted on at least one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap 134; the first two trials taking place in the High Court before Campbell-Moffat J and a jury; the third before Deputy Judge McWalters and a jury. In each case, the prosecution relied on an inference to be drawn from various pieces of circumstantial evidence in order to establish the respondent’s knowledge of his/her possession of dangerous drugs. Each of the judges ruled, albeit at different stages of the trial, namely, at the close of the prosecution case (CASJ 3/2021), the close of the defence case (CASJ 1/2021) and the conclusion of both counsel’s addresses to the jury and, therefore, immediately prior to the summing-up (CASJ 2/2021), that there was no case to answer and, accordingly, directed the jury to acquit the relevant respondent. 4.The identical questions of law posed in each of the three applications are as follows:
5.Before answering these questions, it is relevant to highlight in some detail the prosecution evidence led during the trials concerned; the defence evidence called (where any); the matters which occasioned the particular ruling of no case to answer; and the reasons for the ruling. C. The trial concerning CASJ 1/2021 6.The respondent in the 1st application, namely, CASJ 1/2021 (hereinafter referred to as the 1st respondent), stood trial before Campbell-Moffat J (“the Judge”) and a jury. 7.The 1st respondent was a citizen of Honduras, who had entered Hong Kong on 6 October 2018. As he was leaving the Customs Arrival Hall of Hong Kong International Airport, he was intercepted by Customs officers for a clearance check; during which there were discovered in his backpack, amongst other things such as some new clothing[4] and a notebook computer[5], two packets of substance in two different concealed compartments[6], with one of the packets covered by yellowish carton paper (with a corner protruding out from the inside of the backpack[7]). The substance was subsequently confirmed to be 1,909 grammes of a solid containing 1,420 grammes of cocaine narcotic, with a street value of some HK$2.14 million at the time. 8.Under caution, the 1st respondent said that he had obtained the backpack in São Paulo, Brazil, from an unknown male some two weeks earlier; he was then instructed to deliver the same backpack to someone in Hong Kong as a gift in order to speed up the process of a proposed project[8]. A controlled delivery operation was commenced that same evening and concluded at 1:15 pm the next day[9], but without success. In a subsequent video recorded interview, the 1st respondent stated, inter alia, that he was in debt to the tune of some US$10,000 to 20,000[10]. 9.At trial, the 1st respondent elected to give evidence and said that he was the director[11] of a non-governmental organisation called PROSAMH, which was concerned with “environmental alternative for health (projects)”[12]. In order to raise funds for a five-year plan between 2013 and 2018[13], the 1st respondent had approached some 20 organisations to which he had paid some US$2,500 to US$3,000[14] as so-called “administrative expenses” or bank insurance fees[15], but which turned out to be scams. Whilst it was not entirely clear whether he had applied directly for funds to the United Nations (“UN”) or the Nigerian government[16], on 30 May 2018, he received an email from a person named Allan Bridge, who claimed to be a barrister and said that he was contacting the 1st respondent “in respect of your unclaimed contract/inheritance fund which (was) long overdue for payment”, and which had “been approved for payment under CBN/UN payment center abroad”[17]. The 1st respondent believed that this person, Allan Bridge, was authorised to inform him about the decision of the UN and the Central Bank of Nigeria[18]. 10.Following a chain of email correspondence (which was adduced as defence evidence), the 1st respondent travelled to São Paulo to sign some documents and was given a backpack by a man called Michael, whom he understood to be a UN official. The 1st respondent said that, upon checking the backpack, he saw wrapped gifts of new clothes[19], which he understood were to be given to UN officials in the hope of speeding up his application for funds. C.3. Submission of no case to answer; the Judge’s ruling 11.At the conclusion of the defence evidence and case (on the ninth day of trial), the Judge expressed her view to prosecuting counsel that the prosecution would have difficulty in establishing the 1st respondent’s guilty knowledge[20], given her view of the state and quality of the evidence. This prompted defence counsel to make a submission of no case to answer, to which submission the Judge ultimately acceded. Consequently, the jury were ordered to return a verdict of not guilty, and the 1st respondent was duly acquitted. 12.Setting aside her views on the evidence, which she expressed during her exchanges with counsel[21], the Judge stated in her ruling of no case to answer that:
D. The trial concerning CASJ 2/2021 13.The two respondents in CASJ 2/2021 (hereinafter referred to as the 2nd and 3rd respondents, who were the 1st and 2nd defendants at trial) stood trial also before Campbell-Moffat J (whom we shall continue to refer to as “the Judge”) and a jury. 14.The 2nd and 3rd respondents were Indonesian nationals: the 2nd respondent was the niece of the 3rd respondent. On 8 June 2019, they arrived in Hong Kong on a flight from Laos via Bangkok and were intercepted by Customs officers at the Customs Arrival Hall of Hong Kong International Airport for a clearance check. In the lining of the 2nd respondent’s suitcase was found 2,490 grammes of powder containing 2,080 grammes of ketamine narcotic; while in the lining of the 3rd respondent’s suitcase was found 2,420 grammes of powder containing 2,100 grammes of ketamine narcotic. The total quantity of narcotic was 4,180 grammes of ketamine, worth some HK$3 million at street value. 15.The 2nd and 3rd respondents were therefore indicted on a joint count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, in respect of the combined total of ketamine concerned (Count 1); and an individual count, each of trafficking in the amounts found in their respective suitcases (Counts 2 and 3). 16.In their respective video recorded interviews, the 2nd and 3rd respondents each claimed that they had come to know a man called “Surya Limbu” (“Limbu”), who they believed was running a clothing business and who had just returned to Indonesia from Hong Kong. Limbu asked them both to bring some clothing items for him to Hong Kong, for which they were paid for their air tickets and accommodation in Hong Kong. Whilst in transit in Laos, they met a white-haired man called “Jack”, a friend of Limbu, who asked them to switch their original suitcases with new ones. Jack also gave each respondent US$1,000 in cash[26]. Both respondents denied knowing they were carrying dangerous drugs. The 2nd respondent said that Limbu had shown her some pictures of his clothing stores[27]; while the 3rd respondent said that she had been told that the suitcase contained clothes, which she had in fact seen when she checked her suitcase[28]. 17.It was an admitted fact that, at the time of their arrests, the 2nd and 3rd respondents were each in possession of US$1,000 in cash, as well as other currencies[29]. D.2. Submission of no case to answer; the Judge’s ruling 18.On the day after the conclusion of the prosecution case (the sixth day of trial, which was a Friday), the Judge accepted the respective submissions of no case to answer from the 2nd and 3rd respondents in respect of Count 1 only, which alleged that they had jointly trafficked in the ketamine in both suitcases, and ruled there was no case to answer on that particular count[30]. It should be noted that neither counsel for the 2nd respondent or the 3rd respondent made any submission of no case to answer in respect of Counts 2 or 3. Nor did the Judge invite submissions on those counts. 19.When the court resumed (on the following Monday), the jury formally acquitted the 2nd and 3rd respondents of Count 1 upon the direction of the Judge[31]. Having both elected to call no evidence in their defence, counsel then proceeded with their closing addresses[32]. At the conclusion of all three closing addresses, the Judge released the jury and asked them to return on the following day for her summing-up[33]. When the jury had left court, the Judge then expressed her views on the evidence as to the issue of knowledge, and addressed prosecuting counsel in these terms[34]:
She then indicated that she would like to hear submissions from the parties as to whether there was a case to answer in respect of the remaining individual counts (Counts 2 and 3). The afternoon was duly taken up with submissions, culminating in her expressing the provisional view that “in the light of Hedgcock, I’m going to withdraw the case from the jury”. 20.When the court resumed the next morning (the eighth day of trial), the Judge ruled, as she had forecast, that there was no case to answer in respect of Counts 2 and 3, as a result of which it was not necessary to commence her summing-up. Accordingly, the Judge then directed the jury to acquit the 2nd and 3rd respondents of their respective counts. 21.Setting aside her views on the evidence, which she had expressed to the jury before directing them to acquit[35], the Judge stated in her ruling that:
22.As for the legal test in approaching a submission of no case to answer, the Judge said:
D.3. Direct exchanges between the Judge and the jury 23.Following the Judge’s direction to acquit the two respondents, the jury engaged in direct exchanges with the Judge. These exchanges[39] were both unprecedented and extraordinary and, in view of what we shall later say about them, are here set out in full[40]:
E. The trial concerning CASJ 3/2021 24.The respondent in CASJ 3/2021 (hereinafter referred to as the 4th respondent) stood trial before Deputy Judge McWalters (“the Deputy Judge”). 25.On 11 May 2019, the 4th respondent, an American passport holder, arrived at Hong Kong International Airport from Orlando in the United States, via Dubai in the United Arab Emirates and Johannesburg in South Africa. He was intercepted by Customs officers at the Customs Arrival Hall, whereupon an X-ray examination of his suitcase showed that there was a briefcase inside. A further X-ray examination revealed two false compartments in both the front and the back of the briefcase. Two packets of substances weighing a total of 1,996 grammes of powder, containing 1,609 grammes of cocaine narcotic, were found inside the linings of the briefcase. Under caution, the 4th respondent stated that he was given the briefcase from a woman called “Margaret” in Johannesburg and a man, by the name of William Greene, had earlier told him that it was a customary gift to be given to a bank officer in Hong Kong[41]. A controlled delivery operation was conducted by Customs officers but to no avail[42]. 26.One of the Customs officers subsequently inspected the mobile telephone seized from the 4th respondent, from which were extracted, in particular, a series of email messages between the 4th respondent[43], William Greene and one Alex William, sent during the preceding six months. A summary of the email messages (Exhibit P61[44]) was produced by way of admitted facts under section 65C of the Criminal Procedure Ordinance[45] and was relied upon by the prosecution to show that, initially[46]:
Yet, subsequently[47]:
In other words, so it was submitted by prosecuting counsel[48]:
E.2. Submission of no case to answer; the Deputy Judge’s ruling 27.At the conclusion of the prosecution case, defence counsel made an application of no case to answer, which was opposed by the prosecution on the basis, inter alia, that the emails were “a cover, in effect, for drug trafficking”[49]. The Deputy Judge reserved his ruling. On the following day, he allowed the application, as a result of which the 4th respondent was duly acquitted by the jury upon direction. 28.In his ruling of no case to answer, the Deputy Judge pointed out that:
Accordingly, the Deputy Judge took the view that the evidence was not sufficiently strong to warrant a case for the 4th respondent to answer[56]. 29.In addressing the law, the Deputy Judge stated[57] that he was concerned with the “third question” in Attorney General v Li Fook Shiu Ronald[58], which was an elaboration of the English case of R v Galbraith[59]. After referring to Director of Public Prosecutions v Varlack[60] and HKSAR v Hui Rafael Junior & Others[61], the Deputy Judge said he was[62]:
31.The Court is indebted to Mr Tam and Ms Wong for the depth and breadth of each of their respective researches in this area of the law, and for the resulting quality of their submissions. Although there were differences in emphasis between them, perhaps, both were ad idem on the approach to, and test for, submissions of no case to answer in this jurisdiction. 32.They both agreed that where the evidence is circumstantial, a judge who is faced with a submission of no case to answer should ask himself, in accordance with Galbraith and Li Fook Shiu Ronald, what inferences a reasonable jury (not the judge himself) at the end of the case could, may or might draw. If there existed an inference of guilt which was reasonably open to the jury to draw, notwithstanding that there may be another inference consistent with innocence, the case should go to the jury. The misconception of the law by the Judge and the Deputy Judge in the present cases, which had led to these applications, was that once they themselves considered there was another inference to draw in favour of the defence, that was the end of the matter and the case should be stopped. Yet, it was a matter for the jury, not the judge, what inferences the jury might ultimately draw on the evidence they accepted. 33.Moreover, what mattered upon a submission of no case to answer were those inferences which could, may or might be drawn from the prosecution evidence. Accordingly, it was not appropriate for the Judge to take into account in deciding whether there was a case to answer her view of the veracity of the 1st respondent’s evidence in CASJ 1/2021, or to accept the unsworn and untested assertions of the 2nd and 3rd respondents in CASJ 2/2021; particularly when both bodies of evidence were open to serious questions, which it would have been for the jury to resolve. Similarly, it was not appropriate for a judge to adopt a particular interpretation of evidence, which was in any event hearsay as to such interpretation until spoken to by a participating witness, as the Deputy Judge had done in CASJ 3/2021; particularly when his interpretation was clearly open to question and when he had accepted that it was possible to draw an inference of guilt from other evidence. In all three cases, the judges had fallen into the trap of substituting their own views of the evidence, and thereby usurping the function of the jury. 34.Both leading counsel placed particular reliance on the way the matter had been put by the English Court of Appeal in R v Morgan[65]:
35.Morgan had distinguished the earlier decision of R v Moore[66], which has since been doubted in other authorities and textbooks, most recently by the authors of Blackstone’s Criminal Practice 2022[67]. We shall examine this development later. 36.Not only did both Mr Tam and Ms Wong agree for the most part on the application of the relevant law, it was the common position of the parties that Question 2 in all three applications should be answered affirmatively. We shall deal in more detail with some of their specific arguments when we deal with the relevant law and facts pertaining to each application. G.1. The 1st fundamental legal principle 37.In order to understand how a judge should approach a submission of no case to answer, it is necessary to remind ourselves of certain fundamental principles of a criminal trial, which are essential building blocks to that approach. The first such principle is that a submission of no case to answer is a question of law: as such, it must be decided by the judge of law. In Haw Tua Tau v Public Prosecutor[68], Lord Diplock, giving judgment on behalf of the Privy Council in an appeal from Singapore, where three appellants in two separate capital cases had been tried by two judges of the High Court sitting alone, said[69]:
38.This statement accords with the earlier decision of the High Court of Australia in May v O’Sullivan[70], which was cited in argument by the respondent in Haw Tua Tau, although the case is not mentioned in Lord Diplock’s judgment[71]:
G.2. The 2nd fundamental legal principle 39.This first principle should not be controversial. Its significance is that it leads to the second fundamental principle, which is that since a judge and jury have separate functions at trial, the judge of law should not encroach on the function of the jury as judges of fact. This division was thus described by Hughes LJ (as Lord Hughes then was) in R v N Ltd[72]:
40.Lord Widgery CJ had put the matter succinctly more than 30 years earlier in R v Barker (Note)[73], in terms which were specifically approved and applied by the Court in Galbraith, as follows[74]:
Lord Steyn, on behalf of the Privy Council in Crosdale v The Queen[75], has described the judge and jury having “separate but complementary functions in a jury trial”, and characterised the judge’s role as “supervisory” of the proceedings. G.3. The 3rd fundamental legal principle 41.It follows from these two principles, thirdly, that it is not for the judge to determine what he thinks the jury should ultimately accept or reject of the prosecution case; nor whether, if they did accept the prosecution evidence, the resulting verdict would be unsafe or unsatisfactory. In R v R[76], the Supreme Court of New South Wales was required to determine the following question of law, which had been submitted by the Director of Public Prosecutions in the wake of a difference of opinion and approach among judges in that jurisdiction[77]:
42.In answering this question in the negative[78], Gleeson CJ (as Gleeson NPJ then was) identified two schools of thought: the ‘narrower view’, which was that “a judge should only direct an acquittal if he concludes that there is no evidence upon which a jury properly directed could properly convict”; and the ‘broader view’, that “the judge should stop the case if, in his opinion, a verdict of guilty would be unsafe and unsatisfactory”[79]. Noting that there was judicial support in England and Wales for the broader view prior to Galbraith (for example, in R v Falconer-Atlee[80] and R v Mansfield[81])[82], he considered that, while there might be an attraction in a judge having a power to prevent what he regarded as a miscarriage of justice, there were also other aspects of the trial procedure designed to circumscribe the extent to which a trial judge should intervene. One such aspect was the role of the jury as the tribunal of fact, which underlay the decision in Galbraith and other Australian decisions[83]. Of the jury’s fact-finding function, he concluded[84]:
43.As the Court in Galbraith observed, in respect of what Gleeson CJ would term the broader view[85]:
44.Pausing here, if a judge is concerned only with matters of law while the facts are for the jury, the question arises as to when it would ever be appropriate for a judge to intervene and stop a case. Correspondingly, if a judge has no power to stop a case because he himself thinks that a verdict would be unsafe and unsatisfactory, in what circumstances can he then find no case to answer. As Lord Lane CJ accepted in Galbraith[86]:
45.In addressing this balance, which he described in R v R as “an underlying issue of importance”[87], Gleeson CJ noted that[88]:
He went on to make the point, by reference to the decision of the Supreme Court of Canada in R v Mezzo[89] and the two joint majority judgments of, on the one hand, Beetz, Estey, McIntyre, Chouinard and Le Dain JJ, and, on the other, Dickson CJ and Wilson J, that[90]:
We have, with respect, found the decision in R v R, which was approved by the High Court of Australia in the leading case of Doney v The Queen[91], illuminating, and its analysis and reasoning highly compelling. G.4. The 4th fundamental legal principle 46.The fourth fundamental principle holds that whether a submission of no case to answer is made at the close of the prosecution case or later, the test to be applied is the same. In R v Boakye[92], Steyn LJ (as he then was), in response to a prosecution argument that it was not appropriate to make such a submission at the end of the defence case, said[93]:
Likewise, in R v Brown (Jamie)[94], Rose LJ held:
Both authorities on the judge’s duty in such circumstances were cited with approval by Longmore LJ in R v Brown (Davina)[95]; but with the following caveat, to which we shall later return[96]:
G.5. The 5th fundamental legal principle 47.Connected with this principle is the question of the extent to which the defence case can or should be taken into account in determining whether a jury, properly directed, could convict. This fifth issue, has particular relevance to the three applications before us; for not only did the Judge in both cases before her have regard to the 1st respondent’s evidence in CASJ 1/2021, and the 2nd and 3rd respondents’ assertions in interview in CASJ 2/2021, but the Deputy Judge seems to have relied on (and, indeed, accepted) the truth of the assertions contained in emails to which the 4th respondent had not yet spoken in CASJ 3/2021. 48.There are two seemingly different positions adopted by the courts in respect of this issue. At one end of the spectrum of debate is the view that only those inferences capable of supporting the prosecution case should be considered upon a submission of no case to answer being made. This was the effect of the judgment, for example, of Glass JA in the Court of Criminal Appeal of New South Wales, in R v Towers[97]:
49.In R v R, which endorsed Towers[98], Gleeson CJ noted that[99]:
50.Gleeson CJ went on to say in R v R[100]:
Thus, we see that the answer to the present question derives, as Gleeson CJ saw it, from the second and third principles described above. 51.In R v Lika & Others[101], in which the Court was concerned with a sole ground of appeal that the trial judge had wrongly rejected a submission of no case to answer, it was contended that certain telephone evidence (which included a message from the applicant’s girlfriend supporting the contention that he was going to meet her on the day in question for an innocent purpose), as well as the applicant’s prepared statement in defence, presented realistic possibilities consistent with innocence, which should therefore have led to the case being withdrawn from the jury. The argument drew the tart response from the English Court of Appeal, that “this point is and always was hopeless”[102]. 52.In respect of a defendant’s assertion made under caution in interview, it is well to remember the principle stated by Lord Justice Widgery (as he then was) in R v Storey[103]:
53.We should acknowledge that Storey concerned a wholly exculpatory statement, while the law has, of course, evolved since 1968 in respect of “mixed” statements so that juries may now have regard to both the inculpatory and exculpatory parts of a statement in deciding where the truth lies, although the weight to be attached to each will differ[104]. Nevertheless, since the jury may well reject a defendant’s excuses or explanations in a “mixed” statement, particularly if he chooses not to give evidence on the matter, such assertions hardly form a cogent basis for a submission of no case to answer. As the Court pointed out in Secretary for Justice v Ng Siu Lun[105], albeit in the context of an application under section 16 of the Criminal Procedure Ordinance[106]:
54.At the other end of the spectrum of debate is the notion that all of the evidence should be looked at in determining a submission of no case at whatever stage it is mounted, subject to the test on such submission being the same. In R v Goring[107], Leveson LJ referred with apparent approval to the case of R v Van Bokkum[108]:
Leveson LJ continued[109]:
55.However, we note that the decision has been criticised in the commentary to this report in the Criminal Law Review[110]:
The author of this criticism concluded:
56.However, Goring was approved and followed most recently in R v Lowther[111], where the Court held:
We shall have something to say about the particular cases relied upon in Lowther in due course. For present purposes, however, the Court, as in Goring, was endorsing an approach in which “the totality of the evidence” should be looked at when considering whether there is a case to answer. 57.In Boakye, Steyn LJ, in considering a prosecution argument that the judge could not consider a submission of no case to answer at the end of the defence case, disagreed in terms we have already seen at [46] supra. He continued[112]:
However, it should be noted that Boakye was a very unusual case, in which the whole basis of the prosecution case became untenable as a matter of law, since the co-accused could not steal from himself and, accordingly, the appellant could not conspire with the co-accused to do something which was not a crime. Steyn LJ’s remarks in respect of the submission of no case to answer, which seem to us to have been obiter in any event, may be explained on the basis that the circumstances came within category (1) of Galbraith. Thus, there was simply no valid case for the jury to consider. 58.Be that as it may, we do not necessarily see this as a rigid dichotomy. Obviously, if part of the defence is accepted by a prosecution witness so that the original case promoted by the prosecution is altered or diminished in some material way, a judge would not approach a submission of no case to answer on the basis that the evidence had not been accepted and that the original prosecution case remained unaltered or undiminished. In that sense, a judge must look at “the totality of the evidence” in asking himself, whenever the submission is made, whether a jury properly directed could not properly convict upon it. That, as we have pointed out, was still the test applied by Steyn LJ in Boakye. However, what a judge should not do is come to a conclusion based upon what he or she thinks the jury may, still less should, accept of the defence case; because defence evidence has not been given and tested and (even if it has), findings of fact and credibility are for the jury. Regrettably, it is this precise trap into which both the Judge and the Deputy Judge fell in all three applications before us. 59.It is in this area of possible controversy that we find Gleeson CJ’s comments in R v R as to what he termed “the practical operation of the narrower view”[113], and the corresponding interpretation of what Galbraith described as “borderline cases”, instructive[114]:
G.6. The 6th fundamental legal principle; the application of R v Galbraith in common law jurisdictions 60.Finally, and sixthly, we come to the test itself and how the courts should apply the balance between the judge’s ‘supervisory’ role and the jury’s function in determining whether there is a case to answer. That had been expressed in Galbraith more than 40 years ago and has been applied ever since in all jurisdictions of the United Kingdom, as well as in Hong Kong[115]:
61.Not only has Galbraith represented the law in this area in the United Kingdom for more than four decades, category (2)(b) of the above passage from Lord Lane CJ has been described by the Privy Council in Varlack[116] as “a canonical statement of the law”; while Hallett LJ in R v Christou has declared, in more forthright terms[117]:
62.In Hong Kong, Galbraith has been applied since at least 1990 in Li Fook Shiu Ronald[118], where this Court held:
The Court in Li Fook Shiu Ronald went on to deal with a submission advanced by the appellant that an inferential case should be permitted to continue beyond the end of the prosecution, “only if the judge is himself then satisfied that any inference critical to the prosecution case is the only one which could be drawn from the primary facts”[119]. Of this argument, the Court said[120]:
For more recent applications of the Galbraith formula as considered by this Court in Li Fook Shiu Ronald, see Ng Siu Lun; HKSAR v Wu Wing Kit (No 2)[121]; HKSAR v Mushtaq Zeeshan[122]; and HKSAR v Gurung Shibakumar[123]. 63.Galbraith has also been considered by the High Court of Australia in Doney[124] to be correct, with one qualification, which we shall return to and discuss in due course. 64.It is here that we must confront the line of authority which suggests that the exercise of deciding that there is a case to answer involves the rejection of all realistic possibilities consistent with innocence. We shall examine how this proposition came about, how it was grafted onto the Galbraith test for submissions of no case to answer and, ultimately, whether it can be sustained as a matter of law and logic. 65.It appears that the source of the formula for rejecting all realistic possibilities consistent with innocence emerged in the decision of the High Court of Australia in Peacock v The King[125] over a century ago. There, Griffith CJ had held[126]:
It may be noted that the context of this passage was the Court’s approach to circumstantial evidence; indeed, the evidence in the case had earlier been described as “purely circumstantial”[127]. Of the other two judges in Peacock, Barton J said[128]:
While O’Connor J held[129]:
66.These latter two passages were cited with approval by Menzies J more than 50 years later in another decision of the High Court of Australia, namely, Plomp v The Queen[130], which applied Peacock. Menzies J held[131]:
The case of Plomp, like Peacock, concerned circumstantial evidence and the question whether an appellate court should set aside the verdict if it regarded the evidence as admitting of an inference other than guilt. Neither authority was concerned with the approach to, or the test for, a submission of no case to answer. 67.We have dealt with these early cases in some detail because they were both considered by the House of Lords in the judgment of Lord Morris of Borth-y-Gest in McGreevy v DPP[132], which was likewise not concerned with the approach to submissions of no case to answer. The ratio of the decision in McGreevy was that there was no duty on a judge in a circumstantial case to give a “special direction” that before the jury could find the accused guilty they had to be satisfied, not only that the circumstances were consistent with his having committed the crime, but also that the facts proved were such as to be inconsistent with any other reasonable conclusion: it was sufficient for the judge to direct the jury that they had to be satisfied of the guilt of the accused beyond reasonable doubt. G.6.1. A ‘wrong turn’ in R v Moore 68.Pausing here, it may be wondered why we are particularly concerned with two decisions of the High Court of Australia in 1911 and 1963 respectively, and a decision of the House of Lords in 1973, none of which are concerned with submissions of no case to answer but, rather, with the Court’s approach to circumstantial evidence. The answer is to be found in the unreported decision of the English Court of Appeal in Moore, decided some 30 years ago. Moore was similarly a circumstantial case, in which the evidence might also be said to have been rather tenuous, at least so far as the particular appellant was concerned. 69.The offence of which the appellant in Moore was convicted was burglary. The evidence against him was the presence of his documents inside a Vauxhall motor car owned by his parents but regularly used by the appellant’s brother, who lived at home with his parents, unlike the appellant who had already moved away. The appellant’s brother had been arrested in the vicinity of the car, which also contained property stolen from a burglary. Apart from the appellant’s documents, the prosecution further relied upon an answer the appellant had given to the police when arrested, that the keys to his flat were “in Southampton in the car”, which was a reference to the Vauxhall motor car that had earlier been seized. By contrast, the case against the appellant’s brother was much stronger. 70.A submission of no case to answer was made on behalf of the appellant, which was rejected by the trial judge and the appellant was in due course convicted by the jury. The appeal was concerned with the correctness of the judge’s ruling that there was a case to answer. In the course of his judgment on behalf of the Court, Steyn LJ held[133]:
71.We say, with great deference to a distinguished judge, that it is this judgment where the jump from the approach of juries in considering circumstantial evidence at the conclusion of the case to the approach of judges in considering submissions of no case to answer at the close of the prosecution case was made, and where the criminal law took a proverbial ‘wrong turn’. In so determining, we are fortified by the view of the learned authors of Blackstone’s Criminal Practice 2022[134]:
72.Shortly after the decision in Moore, Steyn LJ’s judgment and his reliance upon what Lord Morris had said in McGreevy was considered by the English Court of Appeal in Morgan, which held[135]:
73.In R v Jamieson[136], the Court, in responding to a submission by the appellant, which sought to rely upon Steyn LJ’s judgment in Moore, endorsed the Court’s reasoning in Morgan[137]:
The above passage in Morgan was further cited with approval by the Court in R v Aziz Saleh[138], where the Court held that it was not necessary upon a submission of no case to answer to decide if the jury must go on to convict:
74.In Van Bokkum, Tuckey LJ, noting that the prosecution had in fact conceded that the burglary conviction in Moore could not stand, attempted to explain the part we have earlier italicised in Steyn LJ’s judgment[139] in the following way[140]:
75.This particular passage from Van Bokkum has been cited and endorsed by the Court in R v Edwards[141]. We would agree with Tuckey LJ in general terms; however, as we have earlier discussed when addressing the third fundamental principle in approaching submissions of no case to answer, it was perhaps an infelicitous form of expression to suggest that it should be any part of a judge’s function to withdraw a case from the jury “if he considers that it would be unsafe for the jury to conclude that the defendant is guilty…” 76.Finally, on this topic, in R v Jabber[142], an argument was advanced before the Court of Appeal that the evidence taken separately and together was not sufficient evidence upon which a jury properly directed could convict the applicant of manslaughter. It was argued by the appellant that “the circumstances… were not such that no reasonable man could fail to draw the inference that the only explanation for the appellant’s conduct was that he had participated in the attack”[143]. In respect of this submission, Moses LJ held[144]:
77.One might be forgiven for thinking that the matter had been settled by the Court in Jabber and that the Galbraith test had been restored to its traditional primacy and understanding, that all proper inferences from the evidence were for the jury to decide at the end of the case and were not to be usurped by the trial judge on a submission of no case on the basis of what he thought the jury should or should not do. The Court emphasised that inferences were to be left to the jury as long as the state of the evidence was such that a jury could reasonably reject an innocent explanation, and could arrive at the conclusion that the only proper inference to draw was one of guilt. G.6.2. The problem in R v Hedgcock & Others; and a second ‘wrong turn’ in R v G & F? 78.Unfortunately, the legal terrain became unsettled again in the following year, when another division of the English Court of Appeal in R v Hedgcock & Others[145] appeared to steer the matter in a different, but perhaps not unfamiliar, direction. In doing so, the Court allowed the controversy to resurface. 79.The case against the three appellants in Hedgcock, in respect of two counts of conspiracy to rape a girl below the age of 16, consisted essentially of conversations between the appellants over the Internet; as well as the exchange of pornographic images between them. Because of what we conceive to be an important omission from the Court’s quotation from Jabber, it is necessary to set out in some detail what Laws LJ, on behalf of the Court in Hedgcock, said:[146]
80.It will immediately be seen that the recited passage from Jabber is not merely incomplete: it has omitted Moses LJ’s rather important qualification, which followed immediately after the quoted passage, namely[147]:
Without this qualification, the quotation from Jabber, if one relied only on the truncated excerpt from the judgment as quoted by Laws LJ in Hedgcock, could be misleading. Indeed, it was this very passage in Hedgcock, citing Jabber but without Moses LJ’s qualification, that was relied upon by the Judge in CASJ 2/2021[148]. 81.The problem of the incomplete quotation from Jabber was identified by Elias LJ in R v Darnley[149]. Having referred to the abbreviated judgment of Moses LJ in Jabber, and the observation of Laws LJ in Hedgcock that a trial judge should stop the case “if at the close of the Crown case the trial judge concludes that a reasonable jury could not reject all realistic explanations that would be consistent with innocence”, Elias LJ held[150]:
Having pointed out that Moses LJ in Jabber was “plainly not intending to depart from the traditional test”, he concluded[151]:
82.Again, one might have thought the principles governing submissions of no case to answer had been firmly reset on their correct course by Elias LJ in Darnley. However, two months after the judgment in Darnley was handed down, the matter emerged once again before a different constitution of the Court of Appeal, in the case of R v G & F[152] (also referred to in other authorities sometimes by its full name as R v Goddard & Fallick). And it was here that the English Court, with respect, took another ‘wrong turn’, which has had an unfortunate influence not only on our own judges but also on local text book authority, in particular Archbold Hong Kong. 83.G & F also concerned a complaint on appeal that the trial judge had not acceded to a submission of no case to answer in circumstances where text messages passing between the two appellants were relied upon by the prosecution as evidence of an agreement to rape a young boy. Aikens LJ, on behalf of the Court, appropriately acknowledged at the outset that “the long-standing test to be applied upon a submission of no case to answer”[153] was the one in Galbraith. He then referred to Hedgcock, citing the passage from Laws LJ’s judgment (at [79] supra), as well as to the judgments of Moses LJ in Jabber and Elias LJ in Darnley. Unfortunately, Aikens LJ again made reference to the truncated citation by Laws LJ in Hedgcock of Moses LJ’s statement in Jabber, yet acknowledged Elias LJ’s caution that when a judge is considering a submission of no case to answer, such ‘tests’ should not be substituted for the classic test in Galbraith; and that Moses LJ in Jabber “plainly did not intend to depart from the traditional test”[154]. 84.In a passage that has given rise to a number of difficulties of interpretation as well as application, Aikens LJ then said[155]:
It is the second proposition which has engendered confusion, not only in England and Wales but in this jurisdiction as well. Indeed, the current edition of Archbold Hong Kong 2022, instead of setting out the decision of Li Fook Shiu Ronald, as it should have done, lists seriatim the above three propositions from Aikens LJ in G & F as authority for the appropriate test in this jurisdiction[156]; the second of which, cited from Archbold Hong Kong 2020 (and divorced from the other two propositions) as being derived from Hedgcock, was expressly relied upon by the Judge in CASJ 2/2021[157]. G.6.3. Is R v G & F compatible with R v Galbraith? 85.The reaction of the courts in England and Wales (and Northern Ireland) to G & F has to some extent been mirrored by the contrasting positions of leading counsel for the Applicant and the amicus curiae in the present applications. Mr Tam regarded the G & F propositions as not necessarily incompatible with Galbraith, provided the second proposition was not read in isolation; and he pointed to a number of English authorities to support his position that G & F was reconcilable on that basis; for example, Lika; R v Moscicki[158]; and R v Bech[159]. 86.For her part, Ms Wong characterised the G & F propositions as a “diversionary gloss” on the classic test in Galbraith, which should not be followed in Hong Kong. She noted that, consistent with the view the Court had expressed in Christou that Galbraith did not need interpreting, Hallett LJ had further made clear in Wassab Khan[160]:
87.Hallett LJ’s comments in Wassab Khan were endorsed by Fulford LJ in R v Curtis Esprit[161], who applied Darnley and cited with approval the judgment of Thomas LJ (as he then was) in R v P[162], to the effect that when considering the approach to be applied to a case involving circumstantial evidence[163]:
In Northern Ireland, the response of the Court of Appeal in R v McCarney[164] has been more direct:
88.Like Northern Ireland, for which decisions of the Court of Appeal of England and Wales are certainly persuasive, we are similarly not bound by them and, consequently, have less diffidence about departing from them when we disagree. In Hui Rafael Junior, a decision at first instance, the court expressed its own misgivings about G & F, when it was first argued in this jurisdiction in 2014[165]:
89.The court’s remarks, which chime with Hallett LJ’s view in Wassab Khan about the danger of over-analysing the test for a submission of no case to answer, were subsequently endorsed by Lunn VP in Wu Wing Kit (No 2), on behalf of a Court which at the time included as one of its members the Deputy Judge in CASJ 3/2021:[167]
90.We respectfully adopt Ms Wong’s characterisation of G & F as a “diversionary gloss”: “diversion”, because it risks leading judges away from the correct and more direct approach in circumstantial cases and, in the process, compromising the second, third and fifth fundamental principles governing submissions of no case to answer; “gloss”, because it is simply unnecessary and unhelpful. Accordingly, it should not be applied in Hong Kong and we would respectfully suggest that steps should immediately be taken to revise section 4-152 of Archbold Hong Kong 2022, which unfortunately appears to give the case of G & F such authority and prominence. We might indicate that we are also concerned with the impression given in section 4-152A of Archbold Hong Kong 2022 that judges may rule no case to answer, not just at the close of the prosecution case but even “after all the evidence had been heard”, without any reference being made to Longmore LJ’s caution in Brown (Davina) that such a power should be “very sparingly exercised”[168]. Indeed, we wish to state that such a course would be very rare indeed. 91.It must be acknowledged that the two English cases of Hedgcock and G & F concerned very unusual facts; Laws LJ describing “the highly unusual circumstances” present in Hedgcock[169], a comment noted by Aikens LJ in G & F[170]. The evidence, which concerned in each case discussions between co-defendants about the violent rape of children (in one case, a co-defendant’s “nieces”; in the other, a 6-year-old boy) would inevitably have aroused strong emotions and reaction among jurors, which any judge would have been alive to, and concerned to, prevent. Nevertheless, a judge would certainly have been able to cater for that particular problem by careful and emphatic direction. More importantly, perhaps, each prosecution depended essentially upon an objective interpretation of a single body of undisputed evidence, namely conversations exchanged during Internet communications, or by way of text messages, between the two defendants. Given that such evidence could not really be said to be “tenuous” by virtue of its “inherent weakness or vagueness” or because it was “inconsistent” with other evidence, in the Galbraith sense, we wonder, in such circumstances, whether the resolution of both cases might not have more comfortably fallen within Lord Lane CJ’s “borderline” category, to be left to the discretion of judges, as explained by Gleeson CJ in R v R. G.6.4. The position in Australia: Doney v The Queen 92.It is here that we should return to the High Court of Australia’s decision in Doney, which has considered and applied Galbraith, but subject to one qualification. In Doney, the High Court held[171]:
The High Court then formulated this test[172]:
93.Whilst we agree that any resolution of inconsistency of evidence in a prosecution case must normally fall within the province of the jury, there could be cases where evidence emerges in the course of the trial, which is both incontrovertible and wholly irreconcilable with the prosecution case as advanced. For example, objectively verifiable and uncontested CCTV evidence, which is wholly inconsistent with a defendant’s presence, or the actions allegedly attributed to him, at the scene of a crime; objectively verifiable documents conclusively proving that a defendant’s actions were authorised or approved, which is thereby inconsistent with any crime having in fact (or in law) been committed; or expert testimony, which proves to be wholly inconsistent with the prosecution case theory. There may well have been other evidence inculpatory of the defendant in the case, yet because of this “inconsistent” evidence, the prosecution case cannot succeed. As the writer of the commentary to R v Vaid (Shoaib)[173] in the Criminal Law Review put the matter:
94.It is in this regard that we consider it wise to retain the ability of the trial judge to rule no case to answer in those circumstances where evidence is incontrovertible and wholly irreconcilable with the prosecution case; in other words, the evidence is “inconsistent” with the guilt of the defendant so that the prosecution case is thereby “doomed to failure”. Acknowledging the valid reservation of the Australian High Court in Doney as to one aspect of the test in Galbraith, we consider that the notion of inconsistency in Lord Lane CJ’s judgment should be read, not in the sense of evaluative inconsistency as between witnesses, but in the sense of fundamental and unanswerable – Ms Wong’s word was “irrefutable” – inconsistency with the guilt of the accused. 95.In coming to this conclusion, we should point out that the offence for which Galbraith was convicted was affray, arising out of a fight in a bar where knives were used and three men were stabbed. The prosecution had relied upon three prosecution witnesses, who turned out to be internally inconsistent either with their own evidence, or with their police statements. The first witness had described the applicant in his statement but could not identify him at an identification parade as someone even present in the bar; the second was a reluctant witness, who was eventually turned hostile by the prosecution; the third retracted his evidence and claimed, under cross-examination, that the person he had described as “a little guy”, which description would have fitted the applicant, was not in fact the applicant. There was further evidence indicating that the witnesses had agreed among themselves that they would deviate, so far as they could, from their police statements. 96.Yet, notwithstanding these obvious matters of factual inconsistency in the prosecution evidence, Lord Lane CJ was still able to conclude[174]:
Clearly, therefore, such plainly inconsistent evidence, in its evaluative sense, was not considered sufficient to warrant the matter being withdrawn from the jury. No doubt the High Court of Australia in Doney would have agreed with that determination. Accordingly, limiting consideration of such inconsistency in the way we have described should not mark any great divergence in practical terms between the two jurisdictions. 97.As we have noted above when considering R v R[175], which was approved in Doney, Gleeson CJ referred in his judgment to the case of Mezzo in order to point to the differences of opinion, even among the majority of the Canadian Supreme Court, “as to the extent to which it is proper for a trial judge to evaluate Crown evidence when dealing with a submission of no case”[176]. However, he went on to say that what characterised the approach of all adherents to what he described as the narrower view was “an insistence on judicial respect for the role of the jury as the tribunal of fact”[177]. We respectfully agree. With this firmly in mind, together with our application of what we believe Lord Lane CJ meant in Galbraith as to inconsistency of evidence, we do not think there should be any realistic difference between the approaches to submissions of no case to answer in Australia or the United Kingdom. 98.Before we leave the Australian jurisdiction, there is one further authority to which we should make reference, since it has been expressly followed by Gleeson CJ in R v R, and approved by the High Court of Australia in Doney. In Attorney-General’s Reference (No 1 of 1983)[178], the Supreme Court of Victoria put the matter in such concise but complete terms that it provides much of the answer to the issues posed in the applications before us. The Court held[179]:
G.6.5. The position in New Zealand 99.For the sake of completeness, although New Zealand has a statutory test governing submissions of no case to answer, by virtue of section 147(4)(b) and (c) of the Criminal Procedure Act 2011, which, according to Winkleman CJ in the Supreme Court of New Zealand decision in S (SC 58/2019) v Vector Ltd[180] codified the principles established in, among other authorities, the New Zealand Court of Appeal decision in R v Flyger[181], Galbraith has been applied in that jurisdiction. In Flyger, Anderson J, on behalf of the Court, held[182]:
100.Referring to this passage from Flyger, Winkleman CJ said in S (SC 58/2019) v Vector Ltd[183]:
101.It seems to us that when the New Zealand courts refer, in the context of submissions of no case to answer, to ‘sufficiency’ and ‘adequacy’ of evidence to establish each essential element of the offence, they are applying a test which looks not to whether the evidence is believable or should be believed but whether, if it is believed, a reasonable jury, properly directed, could convict upon it. G.6.6. The decision of the Privy Council in DPP v Varlack 102.Finally, in this regard, we come to the judgment of the Privy Council in Varlack, which although it precedes G & F and certain other decisions we have discussed, neatly states what we conceive to be the applicable law. We also note in passing that Varlack was not referred to in G & F. Referring to the “canonical statement” of the law in Galbraith, Lord Carswell, giving the judgment of the Board[184], said[185]:
103.It may be noted that, unlike the judgments in Hedgcock and G & F, Lord Carswell has recited the complete passage from Jabber, including Moses LJ’s important qualification (as italicised above). Moreover, both Van Bokkum and Edwards, which cast doubt on the correctness of Moore, were further referred to with approval. We have obtained the 2008 edition of Blackstone’s Criminal Practice, also referenced by Lord Carswell, and found that the commentary refers, as with the 2022 edition, to “a degree of debate” as to the proper approach to submissions of no case, before endorsing Tuckey LJ’s statement of principle in Van Bokkum (cited supra[186]) approved in Edwards and Jabber. 104.It is here that we can conveniently deal with a matter that provoked a certain amount of discussion before us in respect of King CJ’s judgment in Questions of Law Reserved on Acquittal (No 2 of 1993)[187], which was regarded as an accurate statement of the law in Varlack. The passage in contention is what has come to be known as the “King rider”, which appears (as italicised below) at the very end of the passage recited by their Lordships in Varlack, namely[188]:
105.Of the italicised part of this passage from King CJ in Questions of Law Reserved on Acquittal (No 2 of 1993), it was said by Henry J at first instance in the Supreme Court of Queensland in R v Hill[189]:
If we may pause here, we think that the King rider may in fact have led to the same confusion in CASJ 3/2021, since the passage was specifically cited by the Deputy Judge in his ruling of no case to answer[190]. The fact that this passage was quoted in Varlack was also noted by the Deputy Judge[191]. However, the King rider needs to be seen in its full context and, more importantly, in its correct perspective. King CJ, having previously referred to R v R with approval[192], reasoned that once evidence which was capable, if accepted, of leading to a conclusion of guilt, it was thus “capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable”. 106.It is not necessary to go into the elaborate reasons given by Henry J for the provenance of the King rider. Essentially, he pointed out that the rider appeared to derive from an article by Glass J in 1981, entitled “The Insufficiency of Evidence to Raise a Case to Answer”[193]. However, Glass J subsequently shifted his position in another article in 1986, entitled “Acquittals by Direction”[194]. It was, therefore, suggested by Henry J that perhaps King CJ, who was well aware of, and agreed with, the reasoning in the first article, and said as much in R v Bilick[195], was unaware of the shift in Glass J’s position in his second article. In any event, Henry J pointed out that the approach espoused in the King rider had been “expressly disapproved” by the Queensland Court of Appeal in R v Stewart; ex parte Attorney-General[196]. 107.We would obviously be somewhat reluctant to disagree with something adopted as an accurate statement of the law by such an authoritative body as the Privy Council. Henry J, it may be noted, does not refer to Varlack in his judgment in Hill at all. However, whilst there may be scope for confusion, for which it might have been better if the King rider had not been added, we do not think that it changes the law when properly read and understood in context. What we understand the passage including the King rider in Questions of Law Reserved on Acquittal (No 2 of 1993) to mean is that when a judge concludes that, even if all the evidence for the prosecution were accepted and all reasonable inferences most favourable to the prosecution were drawn, a reasonable jury properly directed could not ultimately convict, he should rule no case to answer. In those circumstances, the corollary of the judge’s determination would be, in effect, that no jury could ever ultimately exclude a reasonable doubt. 108.We think that this must too be the Privy Council’s understanding of the passage it approved from Questions of Law Reserved on Acquittal (No 2 of 1993) because, in allowing the prosecution’s appeal in Varlack against the Eastern Caribbean Court of Appeal’s decision that the trial judge should have ruled no case to answer, it held[197]:
G.7. The correct approach in Hong Kong 109.With great respect to the many exceptional contributions of distinguished judges from all corners of the common law world to this debate, we do not think that the Court’s understanding and approach in Li Fook Shiu Ronald can be improved upon as a practical approach to the Galbraith test in this jurisdiction. The Court in Li Fook Shiu Ronald was clearly alive to the danger of being seen as promoting a rival test to that of Lord Lane CJ. That was not its purpose: rather, what it was concerned to do was assist judges in the practical application of the principles in Galbraith. That application and those principles have been followed in Hong Kong for 30 years, but in the light of developments in other jurisdictions and the recent attempt to recast these principles in the cases giving rise to the present applications, we take the opportunity to reaffirm them[198]:
110.Thus, we may sum up the principles governing submissions of no case to answer as follows:
H.1. The Judge’s errors in CASJ 1/2021 111.It is certainly possible for a judge to entertain a submission of no case to answer, or to invite one, after the close of the defence evidence, as the judge did in this case. However, we must emphasise Longmore LJ’s caution in Brown (Davina), that such a power should be “very sparingly exercised”. The reason why a submission should be so exceptional if made at the conclusion of all the evidence is that by the time the defence are called upon to make their election as to whether or not to give evidence, a determination will already have been made on the basis of the prosecution case as to whether there is a case to answer. If no application has been made by counsel, a judge will naturally and routinely have considered, certainly in this jurisdiction, whether one should be made before calling upon the defence to state its case. Furthermore, by the end of the defence case, the prudent judge will already have begun preparing the summing-up and the issues between the parties should by then have become clearly crystallised in the judge’s mind. Certainly, any deficiencies in the case to go to the jury ought to have been long apparent. 112.It is clear from a reading of the transcript at the time the Judge invited submissions, that she had plainly formed a firm view about the evidence (or lack of it, as she saw it), as a result of the 1st respondent’s testimony. She was forthright in her remarks to prosecuting counsel[205]:
because[206]:
113.When the parties made their submissions the following day, it became clear that the Judge had already formed a decided opinion about the veracity of the defence evidence and, in particular, the emails. Indicating that she had wondered to herself overnight that if she was prosecuting, “how could I sell this to the jury with a straight face”[207], she described the evidence as “pretty overwhelming that for some reason or other these third parties were really, sort of, deceiving the defendant over a huge period of time”[208] by means of “an awfully complicated scam in order to… cover a [2.1] million amount of cocaine”[209]. She then indicated that if the jury were properly directed on the evidence, “they would have to acquit and any conviction would be unsafe and unsatisfactory…”[210]. Accordingly, she would be asking the foreman to return a verdict of not guilty. 114.The Judge gave her formal ruling later that morning. With respect to that ruling, it was plainly erroneous on a number of fronts, both legally and factually, the most obvious of which was her conclusion that “[t]here was no admissible evidence from which the jury could draw the inference required”[211]. With respect, such a conclusion was untenable for a variety of reasons, which, it may be noted, are the sort of reasons routinely relied upon in our courts by the prosecution in such cases of international drug trafficking. The weight of the cocaine solid concealed in the 1st respondent’s backpack was 1,909 grammes, hardly a weight that could go unnoticed by an “unwitting” courier over such a long period. The 1st prosecution witness had in fact given evidence that he could feel the two blocks of cocaine when he held up the backpack to inspect it[212]. Moreover, the 1st respondent testified that when he received the backpack in São Paulo in Brazil on 28 September 2018, some nine days before his arrest, there were only gifts inside it, which he had then removed before inspecting the backpack thoroughly[213]. Yet, he still did not detect almost 2 kilogrammes, which were unaccounted for and supposedly concealed within a hidden compartment of the backpack, either then or at any time over the next 9 days. Moreover, the cocaine was not as expertly concealed as the Judge seemed to think, for a corner of the yellowish carton paper covering one of the packets was seen by the 1st prosecution witness to be obviously protruding out from its hidden compartment[214]. 115.Then there was the value of the cocaine, which was HK$2.14 million. That a third party would put such a valuable consignment into the hands of an innocent dupe for such a long period, with its attendant risks of loss, damage or detection during that time, is the sort of point invariably made by prosecuting counsel in this jurisdiction, and is a classic consideration for a jury, which this Court has expressly endorsed. In HKSAR v Ogana Jeiazel Ogana[215], for example, this Court held[216]:
116.Finally, in his video recorded interview, the 1st respondent explained that he was in personal debt of between US$10,000 and US$20,000[217]. Again, this is the very sort of matter which a jury could bear in mind where the case before them involves international drug smuggling by an apparently unwitting and impoverished courier. 117.As for the 1st respondent’s evidence in court, there were aspects of it which were, frankly, incredible. Yet, astonishingly, the Judge considered that the prosecution had “made no headway”[218] in cross-examination, when the matter rather spoke for itself. However, we leave those aspects out of account, as the Judge should have done, for the purpose of considering a submission of no case to answer. The Judge also found that there were “other positive elements of the defence case such as the credibility and propensity of the defendant”[219]. Again, we must leave these matters out of consideration, as the Judge also should have done, for they are irrelevant when considering a submission of no case to answer. 118.There was abundant evidence on the prosecution case to go before the jury, from which they could plainly draw the inference that the 1st respondent was knowingly carrying dangerous drugs. There would have been no warrant whatsoever for the Judge to withdraw the case from the jury at the close of the prosecution case, as the 1st respondent’s experienced counsel evidently realised, for he made no such submission. And there was even less justification for ruling no case to answer at the conclusion of the defence case. The Judge not only usurped the function of the jury and took into account the defence case but did so in a way that revealed both a seriously deficient grasp, and a wholly unwarranted acceptance, of the 1st respondent’s evidence. 119.We have answered Question 1 in our review of the relevant law. In respect of CASJ 1/2021, we answer Question 2 in the affirmative. H.2. The Judge’s errors in CASJ 2/2021 120.The circumstances of this application are, we are told by both Mr Tam and Ms Wong, unique inasmuch as there is no other case in a common law jurisdiction where a judge has ruled no case to answer after closing speeches to the jury and, therefore, before he or she was due to deliver the summing-up. In strict theory, it is not impossible to consider such a submission at such a late stage, although it has apparently never been done before. What is perhaps so remarkable is that not only was no submission made at the conclusion of the prosecution case in respect of Counts 2 and 3, but neither of the two respondents had elected to give evidence. Consequently, there was no material change at all to the evidence after the close of the prosecution case. Yet, having heard closing addresses to the jury, and therefore before she was supposed to commence her summing-up, the Judge again invited the defence to make submissions of no case to answer, and ultimately stopped the case. 121.However, that was not the only unique feature to this trial. When the Judge had delivered her ruling and asked the jury to formally acquit the 2nd and 3rd respondents, the jury responded by questioning the Judge’s reasons. That exchange we have set out earlier in full (at [23] supra). Regrettably, it is as revealing of the jury’s concerns as it is unedifying of the exercise of judicial power. We are further informed, and are not surprised to learn, that this kind of challenge has also never been documented in any court in any common law jurisdiction before. Unique though it may be, it was effected by the jury in an entirely respectful way, notwithstanding the obvious discomfort they plainly felt at the position in which they had been placed. 122.Once again, the Judge determined in her ruling that “[t]here was no direct evidence of knowledge”[220] and she described the facts from which the jury could draw such an inference as “very limited”[221]. Yet, with respect, the circumstances from which the prosecution were inviting the jury to infer knowledge were numerous, cogent and unexplained. The 2nd and 3rd respondents had come to Hong Kong from Laos via Bangkok, having travelled to Laos from Bali via Singapore. A person called Limbu had generously paid for all of their air travel and accommodation expenses[222]. The purpose of making the trip to Laos was supposedly to pick up two black suitcases, which were swapped with their own, and were to be given to someone they did not know in Hong Kong. Those suitcases, which were empty when given to them by a white-haired man called Jack in Laos, whom they had never met before, were made of light material, yet when Customs Officer 1559 emptied the 2nd respondent’s suitcase, he found it was “unusually heavy”[223]; while Customs Officer 17811 described the 3rd respondent’s suitcase when empty as “thicker and heavier than normal”[224]. These observations were hardly surprising since the 2nd respondent’s suitcase had 2.49 kilogrammes of ketamine powder hidden in a secret compartment, while the 3rd respondent’s suitcase had 2.42 kilogrammes of ketamine powder secreted within it. Yet, the 3rd respondent expressly admitted in her video recorded interview that she had checked her suitcase when she received it[225]. 123.The value of the total amount of dangerous drugs was about HK$3 million. The same and rather obvious point about putting such a valuable commodity into the hands of the two respondents without them knowing what they were carrying, was made by prosecuting counsel to the jury in respect of each respondent in his closing address[226]. Furthermore, it was a matter for the jury whether the respondents could really have believed that this whole operation was mounted in order that they could each earn US$1,000 for delivering some clothes to Hong Kong. 124.The Judge invited submissions in respect of what she regarded as “a very limited set of proven facts and where there was credible evidence to support other irresistible inferences in favour of the defence”[227]. In a short judgment, she relied upon the section of Archbold Hong Kong 2020, which we have already seen fit to criticise, namely:
This principle, as the Judge noted[228], derived from the judgment of Laws LJ in Hedgcock. She then found[229]:
125.The Judge was, with respect, profoundly in error in thinking that the facts outlined above were not capable of yielding an inference that each of the respondents must have known she was trafficking dangerous drugs into Hong Kong: the facts and circumstances were redolent of such an inference. She was further wrong to take into account on a submission of no case to answer not only the respondents’ unsworn assertions in their respective video recorded interviews, which they did not go into the witness box to support in evidence, but also her own view as to the veracity of such assertions. Both were matters for the jury, not for the judge. Yet, when the Judge explained to the jury that she was proposing to stop the case, she declared[230]:
This was an astonishing statement for any judge to make, given that neither defendant had elected to give evidence in support of exculpatory assertions, which were plainly open to serious question. In any event, it was not for the judge to make such a finding: it was a matter for the jury. 126.The discussion which followed when the foreman of the jury (who was in fact a woman) and another juror appeared to challenge the Judge has been set out in full earlier in this judgment. We have listened to the recording of what transpired in open court and it is clear that the jury were not happy with the direction and explanation they were being given by the Judge. In one sense, we should perhaps be encouraged that jurors are conscientious enough to question directions from a judge, which they instinctively feel are baffling or incorrect. But, in another sense, it is regrettable in the extreme that a conscientious jury, who were about to receive the Judge’s instructions in a summing-up in a very serious case of international drug trafficking, should have felt so concerned about the direction the Judge was taking the trial that they found it necessary to challenge her. With respect, what transpired at this trial risks being seen by the public (including other defendants facing similar charges) as arbitrary and capricious conduct, which undermines not only the standing and dignity of judges but also, ultimately, confidence in the rule of law. 127.The jury’s challenge only came to an end when a juror asked the Judge if they could speak to the press about what had happened, given the unusual circumstances in which they had been put[231]. The Judge appealed to prosecuting counsel, who rather sardonically remarked, “I hope your ruling is right”[232]. When the juror persisted and asked the Judge whether “we are free to speak to the press or any other party without restrictions or limitations”[233], the Judge responded[234]:
The juror persisted[235]:
At that point one of the defence counsel stood up and told the Judge she was not obliged to give directions to the jury, “and I would like both defendants to be released immediately, more importantly”, since they had “been in prison for more than two years”[236]. The juror nevertheless continued and told the Judge that the case “may end up in the media”[237], and asked her if the jury could keep their own notes; with this request, the Judge agreed[238]. 128.This whole unfortunate exchange involving the jurors was not merely unprecedented, it was extraordinary. It is not difficult to believe that the jury left court baffled and bewildered at the turn of events with which they were unexpectedly presented. Interestingly, once the jury had departed, which they did immediately after this last exchange, the same defence counsel apologised to the Judge for intervening earlier, but revealed his real purpose in doing so[239]:
It is regrettable that the jury should have been placed in this position in the first place, or that counsel should have seen the need to intervene as a deus ex machina, in order to prevent the jury explaining and registering their obvious and understandable misgivings and concerns about the way the case had been handled. 129.In respect of CASJ 2/2021, we again answer Question 2 in the affirmative. H.3. The Deputy Judge’s errors in CASJ 3/2021 130.In this instance, the application of no case to answer was made by defence counsel, as is the normal procedure, at the close of the prosecution case. The circumstantial evidence upon which the prosecution relied was that the 4th respondent had journeyed from the United States through Dubai to Johannesburg in South Africa on 6 May 2019. He subsequently left Johannesburg on 10 May and arrived in Hong Kong on 11 May 2019. He was booked on a return flight to Orlando from Hong Kong on 14 May 2019. When his luggage was searched at Hong Kong International Airport and the cocaine, the subject matter of the indictment, found concealed in the lining of an apparently empty briefcase inside his suitcase, resulting in his arrest, the 4th respondent said he did not know there was cocaine hidden in the briefcase, which had been given to him by a friend in Johannesburg. 131.Customs Officer 14167 noted upon first inspection that there was “obvious re-stitching” and “similar re-stitching” to the edges of both the front and back of the briefcase[240], and that it was “exceptionally heavy” for an apparently empty briefcase[241]. Indeed, the weight of the cocaine powder in the briefcase was 1.996 kilogrammes and its street value at the time was HK$1,974,044. 132.It is not surprising, therefore, that on this evidence the Deputy Judge should have said in his ruling[242]:
That finding ought to have been the end of the submission of no case to answer, had the Deputy Judge applied the law as we have explained it. 133.Unfortunately, the Deputy Judge went on to find that certain emails passing between William Greene, Alex William and the 4th respondent[243]:
He nevertheless said that he would[244]:
134.It should be understood that the prosecution did not introduce the emails as part of their case for the truth of what they purported to assert. They were before the jury as evidence of a “cover” or a “cover story” for drug trafficking. That is how prosecuting counsel had opened her case to the jury when referring to the email material she would be adducing[245]; and that is what she reiterated during her response to the Deputy Judge on the submission of no case to answer[246]. Her position was that the 4th respondent must have known, or at least come to realise, that the emails were a cover story for drug trafficking. There was, however, another purpose in producing the emails, as she explained to the jury when opening her case[247]:
135.Notwithstanding this position, the Deputy Judge nevertheless purported to find[248]:
136.He rightly acknowledged that “[a]t this stage of the trial this email history must be read without the benefit of any evidence explaining it from the defendant”[249]. However, as Mr Tam pointed out, the Deputy Judge immediately went on to make findings and draw inferences as to the truth of what he believed the email history purported to show[250]:
137.Notwithstanding, as we have seen, that the Deputy Judge accepted that there was circumstantial evidence, apart from the emails, which would have allowed the jury to draw an inference that the 4th respondent had knowledge of the presence of the dangerous drugs in the briefcase, he nevertheless found[251]:
138.In reasoning as he did, the Deputy Judge recited the judgment of Lord Carswell in Varlack, which quoted King CJ’s judgment in Questions of Law Reserved on Acquittal, including the so-called King rider[252]. It was King CJ’s judgment, including the King rider, which he then repeated as the concluding basis for finding no case to answer[253]. 139.Mr Tam, with whose submissions Ms Wong agreed, submitted that the Deputy Judge fell into a number of errors, the most obvious being that he sought to draw inferences, which were not for him to draw, from evidence which was hearsay for the purpose he purported to use it, and which at that stage had never been explained by any of its authors. In doing so, he impermissibly formed his own view that the emails were capable of allowing of only one possible inference, when there was clearly another way of looking at their contents; this was, in any event, a matter for the jury. Furthermore, having accepted that, emails apart, there was sufficient circumstantial evidence which would have allowed the jury to draw an inference of knowledge, the Deputy Judge usurped the jury’s function by removing the case from their consideration on the basis of his own interpretation of hearsay evidence, to which the 4th respondent had not spoken. 140.Ultimately, both leading counsel contended that the Deputy Judge had misunderstood the law applicable at the stage of no case to answer, and ultimately fallen into the trap of misconstruing and misapplying the King rider. We agree with these submissions. It is revealing that the Deputy Judge should have directed himself[254]:
By this direction, he in effect put it upon himself to perform the function of a jury and determine the veracity and reliability of evidence that was at that stage before the court. This became readily apparent when, after evaluating that evidence and expressing his view of it, he concluded[255]:
With respect, this was a matter for the jury in conjunction with all the other evidence. 141.As we have said, the short answer to the submission of no case to answer was in fact supplied by the Deputy Judge himself, who accepted that there was sufficient circumstantial evidence which would have allowed the jury to draw the inference of knowledge. That should have been the end of the matter. 142.In respect of CASJ 3/2021, we also answer Question 2 in the affirmative. I.1. Overruling the Judge and Deputy Judge’s rulings 143.However, it is necessary that we should make this clear. We had been made aware from other appeals which we have heard, as were both leading counsel anecdotally, that the judgment of the Deputy Judge has been referred to at trials before various lower courts since its delivery in June 2021. Indeed, in one particular case in the High Court, namely HKSAR v Moala Alipate[256], it was extensively referred to and, indeed, formed the basis of the ruling of no case to answer in that case; also one of drug trafficking. We are told that it has also been referred to in various magistracy trials; with success, for example, in HKSAR v Chan Tin Cheung[257], where a deputy magistrate specifically relied upon it when ruling no case to answer. 144.We wish to make clear that neither the rulings of the Judge (in CASJ 1/2021 or CASJ 2/2021) nor the ruling of the Deputy Judge (in CASJ 3/2021) are to be relied upon again in any court in this jurisdiction as authority for the correct test when considering a submission of no case to answer. They were wrongly decided and, inasmuch as it is necessary to overrule them as rulings made at first instance, we do so. I.2. Proposed reform on the appeal mechanism 145.In the course of his submissions, Mr Tam made a plea on behalf of the Secretary for Justice that this Court should give some guidance for the future where judges rule no case to answer, in order that rulings can, in appropriate circumstances, be immediately challenged and, if necessary, overturned. In this way, it is hoped that the jury, who may have sat for many weeks, can be preserved and the consequent waste of time and public resources averted, if an incorrect ruling is subsequently overturned on appeal. There is at present no statutory procedure for the prosecution to appeal against a High Court judge’s ruling of no case to answer and/or direction to acquit. 146.Mr Tam pointed out that in the United Kingdom, the Crown may appeal against a judge’s ruling of no case to answer under section 58 of Part 9 of the Criminal Justice Act 2003. The appeal then lies to the Court of Appeal. R v X Ltd[258] and R v SA[259] are examples of such appeals being made by the Crown. 147.Regrettably, each of the cases under consideration in these applications has resulted in a serious miscarriage of justice: not in the sense that the defendants were wrongly acquitted, for they may have been found not guilty had their cases reached the jury for consideration as they should have done, but in the sense that the judges concerned impermissibly usurped the function of each jury and incorrectly withdrew the cases before their respective juries could consider them. In the result, all of the defendants have been released and left the jurisdiction in the wake of acquittals being wrongly entered at the direction of the court concerned. 148.Unfortunately, there does not seem to be any lawful mechanism whereby the prosecution can appeal a question of law in the present context, unless the defendant is acquitted (under section 81D of the Criminal Procedure Ordinance), or unless he has been discharged (under section 16 or 79G of the Criminal Procedure Ordinance or under section 22 of the Complex Commercial Crimes Ordinance, Cap 394). There is obviously considerable merit, therefore, in Hong Kong adopting a similar measure to that which operates in the United Kingdom. We would hope that these three cases demonstrate the urgent need for the statutory provisions to be reformed in this respect.
Mr William Tam SC, DDPP, Mr Ira Lui ADPP and Ms Audrey Parwani SPP, of the Department of Justice, for the Applicant Ms Maggie Wong SC, amicus curiae [1] The first application (CASJ 1/2021) was filed on 8 July 2021, the second (CASJ 2/2021) on 17 September 2021, and the third (CASJ 3/2021) on 7 October 2021. [2] At [4] infra. [3] Written Submissions of the Applicant dated 12 July 2022, at [147]. [4] Photograph (5): Appeal Bundle (“AB”), B p 412. [5] Photograph (21): AB, B p 428. [6] Photographs (7) and (19) respectively: AB, B pp 414 and 426. [7] AB, A p 34S-U. [8] AB, B p 436. [9] AB, A p 61B-H. [10] The 1st respondent’s video recorded interview, counters 398 and 402: AB, B p 564. [11] AB, A p 82F. [12] AB, A p 81J-P. [13] AB, A p 85F-H. [14] AB, A p 87R-S. [15] AB, A p 86D-F. [16] AB, B p 287F-N; p 288Q-S. [17] Exhibit D1: AB, B p 578. [18] AB, A p 96S-T. [19] AB, A p 239S-T. [20] AB, B pp 376-382. [21] For example: AB, B p 378D-O “But now we have a whole host of other evidence and it’s a substantial amount of evidence where because of it, [the prosecution] is in more difficulty, yes? So it’s not silence that she’s trying to meet it’s a wall of emails over five months. What is the positon of the court? Should I be looking once more, and am I entitled to look once more as to whether a jury properly directed couldn’t but fail to acquit or do I (let) it go to the jury, let poor [prosecuting counsel] struggle to try and build this into a case of some sort that gets her past – well, I don’t think she can, but she can wrap it up in something that sounds like she might have a case even though we know she hasn’t.”; AB, B pp 397S-398B “As I said yesterday, I have huge sympathy because, as [defence counsel] has said, the evidence is pretty overwhelming that for some reason or other these third parties were really, sort of, deceiving the defendant over a huge period of time. I think if it had been a shorter period and he’d suddenly left and he’d suddenly gone somewhere you might have more to, sort of, say, ‘Why on earth would somebody do that?’ But it’s an awfully complicated scam in order to – in order to cover a 1.2 million (sic) amount of cocaine.”; and AB, B p 399J-O “And, therefore, if they were properly directed on the evidence they would have to acquit and any conviction would be unsafe and unsatisfactory, any perverse conviction, any conviction arising after a direction such as that or, indeed, after a properly produced speech where you wouldn’t be able to say, would you? Yes. All right. Then as with a half-time submission, the proper approach would then be to have the jury brought back in and for – because the defendant is in charge of the jury to ask the foreman to return a verdict of not guilty. All right? That’s going to be my ruling. I’m going to go out and just add a little bit to my ruling. But I think I owe it to the jury. The ruling will be done prior to the jury coming in. I think I owe it to the jury to explain why we’ve had them here the whole time and why we’ve taken away their job.” [22] AB, A p 21, at [3]. [23] Ibid. [24] AB, A p 22, at [5]. [25] AB, A p 23, at [6]. [26] The 2nd respondent’s video recorded interview, counters 1163-1164, 1191-1192: AB, D p 1230; the 3rd respondent’s video recorded interview, counters 596-599: AB, D pp 1410-1411. [27] The 2nd respondent’s video recorded interview, counters 1104 and 1106: AB, D p 1223. [28] The 3rd respondent’s video recorded interview, counters 659, 666-667: AB, D p 1415. [29] Admitted Facts, at [19]-[20]: AB, C p 697. [30] AB, C pp 889G-890F. [31] AB, C p 891A-F. [32] AB, C pp 891L-918K. [33] AB, C p 918R-T. [34] AB, C p 925M-N. [35] For example: AB, C p 959N-P “But the evidence is such, and you know it, you didn’t need to have the speeches of defence counsel in a way, the evidence within the prosecution’s own case provides within the video recorded interviews explanations from the defendants, other evidence which suggests what their knowledge was.”; and AB, C p 960I-L “…you have this other set of explanations within a timeline given by these ladies wholly independently of each other 24 hours after arrest, yes? They haven’t been able to talk to each other and yet you’ve got this story. Not just one story, but two stories which appear on the basis of being restricted to questions and answer, but that appear to be consistent with each other. So there is another version of events here, isn’t there, that is available to you?”. [36] AB, C p 700, at [2]. [37] AB, C p 700, at [3]. [38] AB, C pp 702-703, at [7]. [39] Which lasted for 14 minutes from 10:06 am to 10:20 am. [40] AB, C pp 962A-968P. [41] AB, E p 1712. [42] AB, E p 1550K-L. [43] Although some email messages were sent out by Customs officers impersonating the 4th respondent for the purpose of the controlled delivery operation: AB, E p 1620F-G. [44] AB, E pp 1714-1743. [45] Admitted Facts, at [1]: AB, E pp 1493-1494. [46] Transcript of prosecution opening speech: AB, E p 1516E-G. [47] Transcript of prosecution opening speech: AB, E p 1523H-K. [48] Transcript of prosecution opening speech: AB, E p 1525C-E. [49] AB, E p 1677K-L. [50] AB, E p 1501, at [2]. [51] AB, E p 1501, at [2]-[3]. [52] AB, E p 1507, at [17]. [53] AB, E pp 1508-1511, at [19]-[30]. [54] AB, E p 1507, at [17]. [55] AB, E p 1502, at [6]. [56] AB, E pp 1512-1513, at [34]-[35]. [57] AB, E p 1503, at [9]. [58] AG v Li Fook Shiu Ronald [1990] 1 HKC 1. The “third question” reads: “Could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established? If [the judge] concludes that a jury could, may or might so be satisfied, he will rule against the submission or application.” [59] R v Galbraith [1981] 1 WLR 1039. [60] Director of Public Prosecutions v Varlack [2009] 4 LRC 392, quoting only [21] and [22] therein. [61] HKSAR v Hui Rafael Junior & Others (Unrep., HCCC 98/2013, 13 February 2014, per Macrae JA), quoting only a passage from [7] thereat. [62] AB, E pp 1507, at [15]. [63] AB, E pp 1512-1513, at [34]. [64] Question of Law Reserved in Acquittal (No 2 of 1993) (1993) 61 SASR 1. [65] R v Morgan (Unrep., Court of Appeal, 29 March 1993); [1993] Crim LR 870. [66] R v Moore (Unrep., Court of Appeal, 20 August 1992). [67] Blackstone’s Criminal Practice 2022, at D16.64. [68] Haw Tua Tau v Public Prosecutor [1982] AC 136. [69] Ibid., at 151B-H. [70] May v O’Sullivan (1955) 92 CLR 654. [71] Ibid., at 658. [72] R v N Ltd [2008] 1 WLR 2684, at 2689, [15]. [73] R v Barker (Note) (1977) 65 Cr App R 287. [74] Ibid., at 288; quoted in Galbraith, at 126. [75] Crosdale v The Queen [1995] 1 WLR 864, at 872B-C. [76] R v R (1989) 44 A Crim R 404. [77] Ibid., at 404. [78] Ibid., at 415. [79] R v R, at 407. [80] R v Falconer-Atlee (1974) 58 Cr App R 348. [81] R v Mansfield [1977] 1 WLR 1102. [82] R v R, at 407. [83] Ibid., at 414. [84] Ibid., at 414-415. [85] Galbraith, at 126. [86] Ibid., at 125. [87] R v R, at 410. [88] Ibid., at 407-408. [89] R v Mezzo (1986) 27 CCC (3d) 97. [90] R v R, at 410. [91] Doney v The Queen (1990) 171 CLR 207. [92] R v Boakye (Unrep., [1992] Lexis Citation 3724, 12 March 1992). [93] Ibid., at p 7. [94] R v Brown (Jamie) (Unrep.,17 November 1997, at p5); The Times, 13 December 1997. [95] R v Brown (Davina) [2002] 1 Cr App R 5. [96] Ibid., at [12]. [97] R v Towers (1984) 14 A Crim R 12, at 15. [98] R v R, at 414. [99] Ibid., at 410-411. [100] Ibid., at 411. [101] R v Lika & Others [2015] EWCA Crim 516. [102] Ibid., at [20]. [103] R v Storey (1968) 52 Cr App R 334, at 337-338. [104] See R v Duncan (1981) 73 Cr App R 359; R v Sharp [1988] 1 WLR 7; R v Aziz [1996] AC 41; HKSAR v Kong Siu Ming & Others [2000] 2 HKLRD 449. [105] Secretary for Justice v Ng Siu Lun (Unrep., CACC 304/2013, 17 September 2014). [106] Ibid., at [35]. [107] R v Goring [2011] EWCA Crim 2, at [36]. [108] R v Van Bokkum (Unrep., 7 March 2000). [109] Goring, at [37]. [110] R v Goring [2011] Crim LR 790, at 792; commentary by Andrew Roberts. [111] R v Lowther [2019] EWCA Crim 1499. [112] Boakye, at p 7. [113] R v R, at 413. [114] Ibid. [115] Galbraith, at 127. [116] Varlack, at 399a. [117] R v Christou [2012] EWCA Crim 450. [118] Li Fook Shiu Ronald, at 9E-F. [119] Ibid., at 10E-F. [120] Ibid., at 12H-13D. [121] HKSAR v Wu Wing Kit (No 2) [2016] 3 HKLRD 533. [122] HKSAR v Mushtaq Zeeshan (Unrep., CACC 394/2015, 15 November 2016). [123] HKSAR v Gurung Shibakumar (Unrep., CACC 98/2020, 31 March 2022). [124] Doney v The Queen (1990) 171 CLR 207, at 214. [125] Peacock v The King (1911) 13 CLR 619. [126] Ibid., at 630. [127] Ibid., at 628. [128] Ibid., at 651-652. [129] Ibid., at 670-671. [130] Plomp v The Queen (1963) 110 CLR 234. [131] Plomp, at 247. [132] McGreevy v DPP [1973] 1 WLR 276. [133] Moore, at pp 7-8. [134] Blackstone’s Criminal Practice 2022, at D16.64. [135] Morgan, at pp 4-6. [136] R v Jamieson [2003] EWCA 3755. [137] Ibid., at [49]. [138] R v Aziz Saleh, [2012] EWCA Crim 484, at [41]. [139] At [70] supra. [140] Van Bokkum, at [32]. [141] R v Edwards [2004] EWCA Crim 2102, at [84]. [142] R v Jabber [2006] EWCA 2694. [143] Ibid., at [17]. [144] Ibid., at [18]-[21]. [145] R v Hedgcock & Others [2007] EWCA Crim 3486. [146] Ibid., at [19]-[21]. [147] Jabber, at [21] [148] AB, C p 702. [149] R v Darnley [2012] EWCA Crim 1148. [150] Ibid., at [19]. [151] Ibid., at [21]. [152] R v G & F [2012] EWCA Crim 1756. [153] Ibid., at [29]. [154] Ibid., at [34]. [155] Ibid., at [36]. [156] Archbold Hong Kong 2022, at 4-152. [157] AB, C pp 701O-702G. [158] R v Moscicki [2016] EWCA Crim 389. [159] R v Bech [2018] EWCA Crim 448. [160] R v Wassab Khan [2013] EWCA Crim 1345, at [16]. [161] R v Curtis Esprit [2014] EWCA Crim 1918. [162] R v P [2007] EWCA Crim 3216. [163] Curtis Esprit, at [20]. [164] R v McCarney [2015] NICA 27, at [59]. [165] Hui Rafael Junior, at [7]-[8]. [166] 鑽牛角尖. [167] Wu Wing Kit (No 2), at [130]. Note: the judgment in Hui Rafael Junior was cited as a footnote to this passage from Wu Wing Kit (No 2). [168] See [46] supra. [169] Hedgcock, at [26]. [170] G & F, at [32]. [171] Doney, at 214. [172] Ibid., at 214-215. [173] R v Vaid (Shoaib) [2015] Crim LR 532; commentary at 534 by Peter Hungerford-Welch. [174] Galbraith, at 128. [175] At [45] supra. [176] R v R, at 410. [177] Ibid. [178] Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410. [179] Ibid., at 415, lines 40-49. [180] S (SC 58/2019) v Vector Ltd [2021] 1 NZLR 1, at [122]. [181] R v Flyger (2001) 2 NZLR 721. [182] Ibid., at [16]-[17]. [183] S (SC 58/2019) v Vector Ltd, at [125]. [184] Which included Lord Hoffman, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury, all then or future non-permanent judges of the Hong Kong Court of Final Appeal. [185] Varlack, at 401f-402g. [186] At [74]. [187] Question of Law Reserved in Acquittal (No 2 of 1993) (1993) 61 SASR 1. [188] Ibid., at 5; Varlack, at [22]. [189] R v Hill (2020) 5 QR 225, at [7]. [190] AB, E p 1513A-E. [191] AB, E p 1506A-C. [192] King CJ said of R v R, in Questions of Law Reserved on Acquittal (No 2 of 1993), at 5: “I do not read that case as deciding that there can be a case to answer on circumstantial evidence which is incapable of producing in a reasonable mind a conviction of guilt beyond reasonable doubt. If the evidence is incapable of producing that state of mind, it is not capable of proving the charge.” [193] 55 ALJ 842, at 853. [194] 2 Aust Bar Rev 11, at 12. [195] R v Bilick (1984) 36 SASR 321, at 335. [196] R v Stewart; Ex parte Attorney-General [1989] 1 Qd R 590, at 592. [197] Varlack, at [24]. [198] Li Fook Shiu Ronald, at 12H-13D. [199] At [37] et seq. supra. [200] At [39] et seq. supra. [201] At [41] et seq. supra. [202] At [46] supra. [203] At [47] et seq. supra. [204] At [60] et seq. supra. [205] AB, B p 377L. [206] AB, B p 378D-H. [207] AB, B p 396U. [208] AB, B p 397S-U. [209] AB, B p 398A-B. [210] AB, B p 399J-K. [211] AB, A p 23L-M. [212] AB, A p 37H-I. [213] AB, A pp 239P-241A. [214] AB, A p 34S-U. [215] HKSAR v Ogana Jeiazel Ogana (Unrep., CACC 461/2009, 23 February 2011). [216] Ibid., at [31]. [217] AB, B p 564, Entries 397-402. [218] AB, A p 23, at [6]. [219] AB, A p 25, at [8]. [220] AB, C p 700, at [2]. [221] AB, C p 701, at [4]. [222] AB, D pp 1177-1181, Entries 500-542 (2nd respondent); D pp 1404-1406, Entries 476-505 (3rd respondent). [223] AB, C p 714B-C. [224] AB, C p 768F. [225] AB, D p 1415, Entries 662-663. [226] AB, C pp 894R-895A; p 896D-G. [227] AB, C p 701, at [4]. [228] AB, C p 702, at [5]. [229] AB, C pp 702-703, at [7]. [230] AB, C p 959N-P. [231] AB, C p 966D-R. [232] AB, C p 966S. [233] AB, C p 967I-J. [234] AB, C p 967J-K. [235] AB, C p 967L. [236] AB, C p 967M-R. [237] AB, C p 968A. [238] AB, C p 968J-L. [239] AB, C p 968Q-R. [240] AB, E p 1537E-Q. [241] AB, E p 1537C-D. [242] AB, E p 1507, at [17]. [243] AB, E p 1512, at [33]. [244] Ibid. [245] AB, E p 1520E-J. [246] AB, E p 1677J-L. [247] AB, E p 1520K-M. [248] AB, E p 1502, at [6]. [249] AB, E p 1501, at [4]. [250] AB, E pp1501-1502, at [4]-[5]. [251] AB, E pp 1507-1508, at [17]-[18]. [252] AB, E pp 1504-1506, at [12]. [253] AB, E pp 1512-1513, at [34]-[35]. [254] AB, E p 1508, at [18]. [255] AB, E p 1512, at [33]. [256] HKSAR v Moala Alipate (Unrep., [2021] HKCFI 2611, 6 September 2021). [257] HKSAR v Chan Tin Cheung (Unrep., ESCC 2797/2020, 25 June 2022). [258] R v X Ltd [2014] 1 WLR 591. [259] R v SA [2019] 4 WLR 142. |
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