Attorney General v. Yau Ka-ping

CACC000984/1976

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Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 4th January 1977.

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JUDGMENT

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Huggins, J.A.:

1. This is an appeal by the Crown by way of case stated from a decision of a District Judge upon a submission of no case to answer in a criminal trial. The Respondent was charged, under s.10 (1) (b) of the Prevention of Bribery Ordinance, that being a Crown servant, namely a Station Sergeant in the Royal Hong Kong Police Force, he was on 4th June 1972 in control of pecuniary resources or property disproportionate to his then present or past official emoluments.

2. Paragraph 6 of the Case Stated reads as follows:

"At the conclusion of the Crown's case, on a submission that the Respondent had no case to answer on the aforesaid charge, it was common ground that if the presumption under subsection (2) of section 10 of the Prevention of Bribery Ordinance (Cap. 201) of control by the Respondent over the TING family assets was raised, the Respondent had a case to answer on the aforesaid charge; but that if the said presumption of control was not raised, then there was no case for the Respondent to answer, since the Crown had conceded throughout that there was no direct evidence of control by the Respondent over the said TING family assets."

This presupposes that where in a trial for this offence the prosecution seeks to rely upon the presumption specified in s.10 (2) the judge must, on a submission of no case to answer, then decide whether the presumption arises. In my view this is a fundamental error. The judge at that stage has to decide, and to decide only, whether there is a prima facie case against the defendant, i.e. whether the evidence given by the prosecution witness is such that if no further evidence be adduced a reasonable jury, properly directed, may (not "will" or "must") safely find the defendant Guilty. We are told that what in truth was the common ground was that if the presumption might arise (and it would arise not, as paragraph 6 says, at the close of the prosecution case but at the close of all the evidence and the addresses of counsel) there was a case to answer and that if the presumption could not arise there was no case to answer. In paragraph 10 of the Case Stated the judge, having correctly set out the proper approach to a submission of no case to answer, continued:

"This test was overlaid by the presumption hereinbefore referred to and there must be evidence to raise that presumption. I was of the opinion that I had to be 'satisfied ... that there is reason to believe' on the standard, not the onus, of beyond reasonable doubt, that the evidence adduced by the Prosecution gave rise to that presumption."

With respect to him it is not entirely clear what this means; there is no such thing as an onus of beyond reasonable doubt. Clearly the presumption had been "raised" in the sense that the prosecution had indicated that they sought to rely upon it, but whether the presumption "arises" is what may conveniently be termed a jury question, and in this respect we think the presumption under s.10 (2) is no different from any of the other statutory presumptions, e.g. those under the Dangerous Drugs Ordinance.

3. The language of sub-s. (2) is certainly complicated but the intention is tolerably clear. Immediately one talks of being "satisfied" and of using the standard of proof beyond reasonable doubt - otherwise than in connection with the admissibility of evidence - it should be apparent, in the absence of clear words to the contrary, that one is concerned with a jury question. It is the jury (or in the District Court the judge as a judge of fact, but for the sake of clarity I will continue to refer to the jury where I mean the judge of fact) which has to be satisfied (and satisfied beyond reasonable doubt) that

(1) the closeness of the relationship to the defendant of the person holding the property and

(2) other circumstances

together give reason to believe that the person is holding on behalf of the defendant. The judge is merely concerned to ensure that there is evidence upon which the jury may be so satisfied. An almost inevitable result of putting the defendant upon his defence is, of course, to force him to lead evidence, for, if the jury does find that the presumption arises and no explanation has been given, a conviction is likely to follow. A common error seems to lie in assuming that, in a case where a verdict of Guilty must depend upon the presumption, a defendant need not give evidence negativing his control of property and an explanation of his resources until there has been a finding by the jury of the facts which by law give rise to the presumption. Once the jury has made its finding on the facts relevant to the existence of the presumption it will go on immediately to decide upon its final verdict and there is no further opportunity for the defendant to give evidence on either matter. Of course, in the type of case we are discussing, if the defendant has given evidence with a view to negativing his control of another person's property and has given an explanation of his resources but the presumption is found not to have arisen, such evidence and explanation will never have to be weighed by the jury, because, if the presumption does not arise, it does not require to be rebutted and because they will have been directed that without the presumption they must acquit, so that no explanation of his resources need be relied upon. Also one must not, as we suspect happened here, confuse "the Crown's case" - which is that the defendant is guilty - with those facts upon which the Crown rely as giving rise to the presumption.

4. All this, when set out in extenso in deference to the arguments of counsel, appears to make the whole matter sound extremely complex, but it is not. The law in these cases is:

(1) the Crown must establish a prima facie case. Whether it has done so is a pure matter of law and in reaching his decision the judge should not purport to make any finding of fact whatever:

(2) the Crown must prove the guilt of the defendant beyond reasonable doubt:

(3) one of the elements of the offence may be established by operation of the presumption created by sub-s. (2):

(4) the presumption will operate where, but only where, the prosecution has proved to the jury beyond reasonable doubt the facts laid down as giving rise to the presumption:

(5) if the defendant wishes to adduce evidence in relation to any issue whatever (other than the admissibility of evidence), the only time he has a right to do so is when he is called upon to enter upon his defence and before the addresses of counsel.

5. In the present case the issue which the judge should have considered in his Ruling was not whether the presumption had arisen but whether it could arise on the evidence then before him. He did not, apparently, confine himself to that question and his Ruling is invalidated.

6. It has been suggested that the judgment of this court in Sturgeon v Reg. 1975 H.K.L.R. 677 may have led the judge astray. We do not conjecture about that, but we would say that if that judgment is read as a whole, and sentences are not extracted from their context, there is nothing in the judgment which should mislead. The argument which had been addressed to the court necessitated some reference to the standard of proof in relation to the enquiry whether there was a prima facie case, but nowhere did we suggest that the judge was called upon at the close of the prosecution case to make any finding of fact whatsoever. Counsel suggested that a passage at the foot of p.679 of the Report indicated otherwise. That passage reads:

"The true effect of the decided cases is that in determining whether the prosecution have made out a prima facie case the relevant standard of proof is proof beyond all reasonable doubt."

What that means is not that in determining whether or not there is a prima facie case the judge has to make findings of fact beyond all reasonable doubt but that, in determining the question of law whether or not a reasonable jury might safely convict, the judge had to bear in mind that the standard of proof to be applied in arriving at any such theoretical conviction was that beyond reasonable doubt. The standard of proof might affect what a reasonable jury would decide: thus evidence which might raise a prima facie case in a civil action in negligence (where the standard of proof is the balance of probabilities) might not raise a prima facie case if given in a criminal prosecution for careless driving (where the higher standard of proof is required).

7. As I have said, the Case Stated - and, it would seem, the argument addressed to the District Judge - presupposed the necessity of a finding of fact by the judge and not merely a ruling upon a point of law. We have, however, thought fit to deal with the first question put to us as though it read:

"Whether I was correct in law in holding that, on a submission of no case to answer, before the defendant was put upon his defence I had to be satisfied beyond reasonable doubt that there was 'reason to believe ...' ."

Our answer to that question is "No". We do not think it necessary to answer the third question because it is now for the District Judge to consider, in the light of what has been said, whether a prima facie case has been made out. We remit the case to him with a direction that he continue with the trial.

8. We are compelled to observe that, in spite of the long time which has elapsed since the decision appealed against, the Case Stated was defective in other respects than that already mentioned. Judges of the Supreme Court have repeatedly had to criticise failures to appreciate that ideally a Case Stated should be a self-contained document with no annexures of any kind. We now desire to add the weight of the authority of this court to what was said on the subject by the Full Court in The Attorney General v Leung Chi-kin 1974 H.K.L.R. 269, 273. There was no justification in the present case for the annexure of the judge's Ruling and, so far as the argument before us went, it tended to show that there was no justification for the annexure of all the very numerous exhibits produced in the court below. We do not say - and the Full Court did not say - that there should never be annexures to a Case Stated, but some reason is required other than that it will save the draftsman the trouble of making, for inclusion in the Case Stated, a precis of the relevant parts of a document.

4th January 1977.

Representation:

Coram: Briggs, C.J., Huggins and Pickering, JJ.A.

Date of Judgment: 4th January, 1977.

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JUDGMENT

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Pickering, J.A.

9. I am of the same opinion. The criterion of proof of facts beyond reasonable doubt plays no part in a ruling on a submission of no case to answer; questions of fact are not to be determined finally at that stage thus prejudging facts in issue before the whole of the evidence - especially that of the defence - has been heard, and so usurping the functions of the jury. The test is that if a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer and, given that circumstance, the ultimate finding on the facts and the guilt or innocence of the accused based on that finding must be postponed until the conclusion of the whole of the evidence and the addresses.

10. Mr. Martin Lee, for the Respondent, asked us to say that over and above the principles laid down by Lord Parker in his well known Practice Note ⁽¹⁾, even if a prima facie case was made out, if it was unsafe and unsatisfactory to leave the matter to the jury the judge should not do so. What Lord Parker said in his Practice Note was that a submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discreditted as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

11. In support of his requested extension of that principle, Mr. Lee cited the cases of R. v Falconer-Atlee ⁽²⁾, R. v. Young ⁽³⁾, and R. v. George ⁽⁴⁾. As it seems to me those cases do not go so far as Mr. Lee would have us hold, the underlying assumption in each of them being that a reasonable tribunal could not convict so that it was, or would have been, entirely proper for the judge to withdraw the case from the jury. That principle is neither in conflict with nor does it provide any extension of Lord Parker's Note. In R. v. Barker ⁽⁵⁾, the Court of Appeal said that it could not be too clearly stated that the judge's obligation to stop a case was concerned primarily with cases where the necessary minimum evidence to establish the facts of the crime had not been called. It will now be for the learned judge, abandoning his test of being "satisfied ...... that there was reason to believe" on the standard of proof beyond a reasonable doubt, to decide whether the test in R. v. Barker ⁽⁵⁾ had been met. If not, it will then be for him as a jury assuming that he accepts "relationship" and the "other circumstances" to say whether or not he is satisfied that there was reason to believe that the persons in relationship with the Respondent were holding pecuniary resources or property in trust for him or otherwise on his behalf.

12. I wish to add a few words to the observations of my learned brother Huggins as to the failure to present to this Court a self-contained Case Stated. The one circumstance in which the judgment or decision not only may but must be annexed to the case has no application to a case stated by a District Judge or a Magistrate. It arises in relation to cases stated by Tribunals and an obligation to annex is imposed by 0.61 r.5 but even in the case of Tribunals that obligation only arises where the decision of the Tribunal states all the relevant facts found by the Tribunal and indicates the questions of law to be decided by the Court of Appeal. In that event the facts found and the questions of law to be decided are sufficiently stated in a case by referring to the statement thereof in the decision.

13. Unlike the English Rules of Court, which, in 0.56, r. 7 (4), provide that references to a tribunal do not embrace the ordinary Courts of law, there is no definition or quasi-definition of a tribunal in our own Rules of Court. But both by analogy and by virtue of statute it is clear that the ordinary courts are not within the contemplation of our 0.61. An appeal by way of Case Stated against a verdict or order of acquittal in the District Court is governed by section 84 of the District Court Ordinance (Cap. 336) subsection (a) of which in turn applies the provisions of sections 106 to 109 inclusive of the Magistrate's Ordinance (Cap. 227) mutatis mutandis to the preparation, amendment and setting down of the Case. Neither Ordinance treats the Court with which it is concerned as a "Tribunal" and neither contains any provision similar to our 0.61 r.5 so that the annexure of the judgment or decision to the Case Stated is not, as in certain circumstances with tribunals, in the contemplation of the legislature.

14. The basic requirements of a Case Stated are as set out in Attorney General v. Leung Chi-Kin ⁽⁶⁾ and whilst in the present instance, the annexure of the Ruling, the notes of proceedings and hundreds of pages of exhibits may have rendered the task of drafting the Case Stated somewhat simpler, the administrative work involved in presenting this mass of documents to this Court must have far outweighed any advantage so gained whilst not assisting this Court.

Representation:

Astin for Crown/appellant

Martin Lee and Josiah Kwok (C.Y.Kwan & Co.) for respondent.

(1) (1962) 1 All E.R. 448

(2) (1973) Cr. App. R. 348

(3) (1964) 2 All E.R. 480

(4) (1908) 25 T.L.R. 66

(5) The Times of 13.11.75.

(6) (1974) H.K.L.R. 269