Shing Siu Ming and Another v. HKSAR

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:

"1. The Court [of Appeal] erred in ruling that the supplying to the jury of various sections of an ordinance, namely the Drug Trafficking (Recovery of Proceeds) Ordinance Cap. 405, and failing to direct them of the use they may make of same did not amount to a material irregularity.

2. The Court [of Appeal] erred in ruling that as it was generally accepted that there was an overwhelming case that there had been a conspiracy along the lines charged that the Learned Trial Judge's direction to the jury was sufficient in the circumstances of the case, notwithstanding that there had been a failure to direct the jury on trafficking in dangerous drugs, the substantive offence which was the object of the alleged conspiracy."

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:

" What is important to bear in mind is that this was not simply a case of the Judge giving the jury copies of the ordinance to consider. The jury only received copies of the relevant sections which were under consideration. Over and above this, the Judge had himself given a detailed explanation on the sections and had directed them upon how the law should be applied.

This was not a question of the Judge supplying the material to the jury to make what they could of it. They had already received detailed directions and the provision of the copy of the sections was a matter of providing an aide memoire. This did not amount to an irregularity and these grounds of appeal cannot be sustained."

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:

" There is no merit in this ground. The Judge's direction was sufficient in the circumstances of the case. It was generally accepted that there was an overwhelming case that there had been a conspiracy along the lines charged. The only issue was whether the 1st Applicant had been a party to it. There was a plenitude of circumstantial evidence implicating the 1st Applicant. The jury heard all the evidence and accepted that the 1st Applicant had been a participant."

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:

" The conspiracy in question involved the supply of large quantities of heroin from the conspirators in Hong Kong to other conspirators who were resident in Sydney, Australia. The procedure which was adopted was for the heroin to be packed in water supply equipment and then to be air freighted to Sydney. On arrival in Sydney it was unpacked and processed and then sold in manageable quantities. Part of the proceeds of sale were then sent back to Hong Kong to be shared amongst the Hong Kong conspirators."

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