Shing Siu Ming and Another v. HKSAR
Read the full judgment text of FAMC 21/1999 on BabelCite. This FAMC judgment was delivered on 7 September 1999 before Litton Ag CJ, Ching PJ, Bokhary PJ.
Criminal law – conspiracy to traffic in dangerous drugs – leave to appeal out of time to Court of Final Appeal – whether Court of Appeal erred in finding no material irregularity in trial judge providing jury with copies of sections of Drug Trafficking (Recovery of Proceeds) Ordinance Cap 405 – whether failure to direct jury on ingredients of trafficking in dangerous drugs was fatal – restraint order freezing applicants' assets as ground for extension of time – application for certification of points of law of great and general importance – The applicants sought leave to appeal out of time from their convictions for conspiracy to traffic in dangerous drugs, after the Court of Appeal (Power VP and Mayo and Stuart-Moore JJA) dismissed their appeal in CACC 415/1997. The conspiracy involved the supply of large quantities of heroin from Hong Kong to Sydney-based conspirators, with the drug packed in water supply equipment and air freighted. On arrival, the heroin was unpacked, processed and sold, with proceeds shared back to Hong Kong. Australian National Crime Authority raids on two Sydney premises recovered 3.863 kilos of pure heroin, a hydraulic press, processing equipment, cash and remittance records in one, and 7.9 kilos of heroin in the other. A chartered accountant's tracing exercise established that HK$46.9 million had been remitted to Hong Kong, of which HK$14.8 million was received directly or indirectly by the 1st applicant. The applicants attributed their delay in applying to the Court of Final Appeal to a restraint order freezing their assets, saying their lawyers had only recently been put in funds. – First ground – whether the Court of Appeal erred in finding no material irregularity arising from the trial judge supplying the jury with copies of relevant sections of the Drug Trafficking (Recovery of Proceeds) Ordinance Cap 405 without specific directions on their use. The Court of Final Appeal held that the Court of Appeal had not so ruled. On the contrary, the trial judge had given a detailed explanation of the sections and had directed the jury on how the law should be applied, so that the provision of copies was merely an aide memoire rather than leaving the jury to interpret the material themselves. Whether the trial judge's directions were sufficient was primarily a matter for the Court of Appeal as an intermediate appellate court, and there was no proper basis for challenging that assessment in a final appeal. – Second ground – whether the Court of Appeal erred in finding the trial judge's direction on the law of conspiracy sufficient notwithstanding the failure to direct the jury on the ingredients of trafficking in dangerous drugs, the substantive offence that was the object of the alleged conspiracy. The Court of Final Appeal held that the omission was not even reasonably arguable as fatal in the circumstances, given the overwhelming evidence of a conspiracy along the lines charged. The only real issue at trial was whether the 1st applicant had been a party to it, and there was a plenitude of circumstantial evidence. The conspiracy could not have been for any purpose other than to traffic in dangerous drugs. – Observation by the Appeal Committee that there may be advantages in supplying jurors with copies of relevant statutory provisions, but attendant risks must be borne in mind, and trial judges must ensure that such copies do not become more than a means of refreshing memory. – Both applications for certification and leave to appeal out of time dismissed.
Legal issues: Whether providing jury with statutory sections without specific directions on use amounted to material irregularity · Whether failure to direct jury on ingredients of trafficking in dangerous drugs was fatal
Outcome: Both applicants' applications for certification and leave to appeal out of time were dismissed; no foundation for a final appeal.
Cited by 63 cases
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FAMC000021/1999 FAMC No. 21 of 1999 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 21 OF 1999 (CRIMINAL) (ON APPLICATION FOR LEAVE TO APPEAL FROM CACC NO. 415 OF 1997) _____________________
_____________________ Appeal Committee: Mr Justice Litton Ag CJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ Date of Hearing: 7 September 1999 Date of Determination: 7 September 1999 ______________________ DETERMINATION ______________________ Mr Justice Bokhary PJ: 1. These two applicants seek leave to appeal out of time to the Court of Final Appeal. There is no need to go into the background. We proceed straight to the complaints which they make, which are that:
The applicants ask us to certify that their complaints raise points of law of great and general importance. And they ask us to grant them leave to appeal to the Court of Final Appeal in order to advance those points with a view to getting their convictions quashed. Being out of time, they ask us to extend time for them to seek such certification and leave to appeal. As to why they are out of time, they say that their assets had been frozen by a restraint order, and that it is only very recently that their lawyers have been put in funds. 2. As to the first of the applicants' two complaints, it is simply not the case that the Court of Appeal (Power VP and Mayo and Stuart-Moore JJA) had ruled in the manner alleged. The Court of Appeal did not suggest that it was acceptable to supply a jury with various sections of a relevant statute without directing them on what use they may make of such sections. In its judgment delivered by Mayo JA, the Court of Appeal said:
3. If the Court of Appeal had ruled as the applicants allege, the correctness or otherwise of such a ruling could well have formed the basis of a question of law of great and general importance. But, as we have just seen, the Court of Appeal did not so rule. Whether the trial judge's explanations and directions were sufficient in all the circumstances was primarily a matter for assessment by the Court of Appeal as an intermediate appellate court. The Court of Appeal assessed those explanations and directions to be sufficient. We see no proper basis for challenging that assessment by way of a final appeal. 4. As to future cases, we would observe that there may be circumstances in which there are advantages in supplying jurors with copies of relevant statutory provisions. But there are also attendant risks in that course. We trust that trial judges will always bear carefully in mind the need to ensure that the jurors receive adequate directions and that, if copies of statutory provisions are supplied to them, the same are not allowed to become more than a means of refreshing memory. 5. We turn now to the second complaint. In the Court of Appeal, this complaint formed part of the third ground of appeal, which was that the trial judge's direction on the law relating to the offence of conspiracy to traffick in a dangerous drug was deficient, confusing and contradictory. As to that, the Court of Appeal said this:
6. Perhaps it would have been better if the trial judge had told the jury what were the ingredients of the offence of trafficking in a dangerous drug. But we do not think that it is even reasonably arguable that his omission to do so was fatal in all the circumstances. 7. Those circumstances were outlined thus by the Court of Appeal in its judgment:
8. The Court of Appeal also mentioned two raids conducted by officers of the Australian National Crime Authority. Both were of premises in Sydney used by the conspirators. In one raid there were found: 3.863 kilos of pure heroin; a hydraulic press; equipment for processing the heroin to a lower purity; empty packets of the chemical used in that process; a large amount of cash in Australian dollars; and various records indicating the remittance of substantial sums of money to the 1st applicant in Hong Kong. 9. In the other raid, the things found included 7.9 kilos of heroin. 10. The tracing exercise conducted by a chartered accountant engaged on behalf of the prosecution demonstrated that the conspirators in Australia had remitted HK$46.9 million to Hong Kong, and that $14.8 million of this amount was received by the 1st applicant directly or indirectly. 11. There is more, but there is no need to say more. The conspiracy could not have been for any purpose other than to traffick in dangerous drugs by exporting them from Hong Kong, importing them into Australia, and selling them there. 12. There is no foundation for a final appeal. We need not say anything further about an extension of time for making these applications. As it is, both applicants' applications for certification and leave to appeal out of time are dismissed.
Representation: Mr Jerome Matthews (instructed by M/s Wong, Packwood & Co.) for the applicants. Mr M. C. Blanchflower & Mr Alex W. T. Lee (of the Department of Justice) for the respondent |