HKSAR v. Shing Siu Ming and Others

CACC000415B/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 415
(Criminal)

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Coram: Hon. Power, V.-P., Mayo & Stuart-Moore, JJ.A. in Court

Date of hearing: 29 October 1998

Date of handing down decision: 11 November 1998

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D E C I S I O N

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Mayo, J.A. (giving the decision of the Court):

1. The 1st Applicant sought leave to appeal against his conviction for a conspiracy to traffic in dangerous drugs and for dealing with property known or reasonably believed to represent the proceeds of drug trafficking.

2. The 2nd Applicant who was the Common Law wife of the 1st Applicant sought leave to appeal against her conviction for assisting another to retain the benefit of drug trafficking.

3. The 3rd Applicant who is the younger sister of the 1st Applicant sought leave to appeal against her conviction for a similar offence to the 2nd Applicant.

4. Their applications were dismissed for the reasons we gave in our judgment which was delivered on 23 October 1998.

5. All of the Applicants now make application for a certificate that questions of law of great and general importance are involved within our judgement. The questions raised by the 1st and 2nd Applicants are:

"Whether the duties of a trial judge in a trial upon indictment:-

i) permit the trial judge to supply to the jury copies of sections of an ordinance, the terms of which are both difficult and confusing, for them to use as an aide memoire or otherwise;

ii) require the trial judge to direct the jury in clear and careful terms of the use they may or may not make of any ordinance or sections thereof supplied to them for use in the course of their deliberations;

iii) require the trial judge in all cases to direct the jury in clear and simple terms as to the law in relation to the offence indicted and, further, in relation to a count of conspiracy, the law involved in the substantive offence alleged in the conspiracy."

6. The questions raised by the 3rd Applicant are:

"1. (a) Whether the Honourable Court was right to hold that the 'reasonable grounds for belief' within s.25(1) of the Drug Trafficking (Recovery of Proceeds) Ordinance Cap. 405 were reasonable as regards the common sense, right-thinking member of the community as opposed to the 3rd applicant.

[Transcript of judgment at p.9 L - S: and see also R v Ghosh [1982] 3WLR 110 particularly at pp.118 B - 199 C].

(b) Alternatively, whether or not the approach adopted by the English Court of Appeal in Ghosh (supra) at pp.118 H - 119 C should be applied as the appropriate test or method by which a tribunal of fact should determine whether the 3rd applicant or any accused has 'reasonable grounds to believe' that the person being assisted was a drug trafficker or had benefited therefrom.

2. Whether, when there has been an inappropriate interruption of a substantial nature by prosecuting counsel during the course of the trial judge's summing up which results in there being different directions on the same subject of law having been given to the jury, it can be said that the 3rd applicant or any accused has had a fair trial.

[Transcript of judgment at p.11 D - 17S].

3. Where a trial judge gives a direction to a jury but is subsequently requested to give further directions on that said matter because the earlier directions are either confusing or deficient, whether that trial judge is under a duty to repeat the earlier direction he had given, to acknowledge that that direction was quite wrong, to tell the jury to put out of their minds all they had heard from him in respect of the earlier direction, and then in clear terms tell the jury very plainly and simply what the law was.

[Transcript of judgment at p.9 L - 17 P: see also R v. Moon [1969] 1 WLR 1705 particularly at p.1707 C - E; and see also the 3rd applicant's Re-amended Perfected Grounds of Appeal against Conviction paragraph 1]."

7. We are satisfied that questions 1(a) and (b) posed by Mr. Grounds raise points of law of great and general importance for the reason that in no previous decision of this Court has the test to be applied in cases of this kind been formulated.

8. We do not consider that the other questions posed by both counsel meet the criteria for certification under s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

9. However, we consider that the questions to be certified should be formulated in this way:

1. Under s.25(1) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap. 405, was it right for the Court to hold that the objective element in the phrase 'having reasonable grounds for belief' relates to a common sense, right-thinking member of the community and that the prosecution had to prove that these grounds were known to the defendant?

2. Was the approach adopted by the English Court of Appeal in Ghosh (above) at pp.118 H - 119 C to be applied as the appropriate test or method by which a tribunal of fact should determine whether a defendant has 'reasonable grounds to believe' that the person being assisted was a drug trafficker or had benefited therefrom?

Representation:

Mr. M.C. Blanchflower, DPGC and Mr. Alex Lee, SGC (D.P.P.) for Respondent

Mr. Jerome Matthews and Mr. Raymond Yu (Paul Kwong & Co.) for 1st and 2nd Applicants

Mr. Christopher Grounds (Oldham Li & Nie) for 3rd Applicant

Remarks:
Leave to appeal by 3rd Applicant to the Appeal Committee of the Court of Final Appeal refused. Please see the Appeal Judgment FAMC000026/1998.