A closer look at the Secretary for Justice’s Reference No. 3 of 2021: CASJ 3/2021, presided over by the Hon Macrae VP, Zervos and A Pang JJA on 28 October 2022. A successful submission that there is no case to answer, usually at the conclusion of the prosecution’s case, is something of a holy grail for criminal defence practitioners. It means that the case comes to an end with the acquittal of the Defendant, and the often-taxing question of whether the defendant should give evidence need not be addressed. In a recent judgment, the Court of Appeal has comprehensively and definitively examined the law on no case to answer, providing a useful benchmark on the jurisprudence of the subject.
In 3 separate High Court drug-trafficking trials the prosecution relied on an inference to be drawn from various pieces of circumstantial evidence in order to establish the Defendants’ knowledge of his/her possession of dangerous drugs. The presiding Judge had in each case ruled that there was no case to answer, directing the jury to acquit the Defendants. Each judge had made the ruling at different stages of the respective trials, namely at the close of the prosecution case; at the close of the defence case; and at the conclusion of both counsel’s addresses to the jury (before the Judge’s summing-up). The Secretary for Justice referred two questions of law to the Court of Appeal as follows:
- Where there is no direct evidence of a key element of the offence and the prosecution rely on circumstantial evidence in establishing that element, what is the correct approach that a trial judge should take in dealing with a submission of no case to answer made at the close of the prosecution case or during the course of the defence case? In particular, should the trial judge take into account competing inferences consistent with innocence which are only premised on the defence evidence?
- In the context of these cases, where there is no direct evidence of the accused’s knowledge of the presence of the drug, whether the trial judge erred in respect of a question of law in ruling that there was no case to answer and directing the jury to acquit by (i) wrongly finding that there was no admissible evidence from which the jury could draw the required inference; and (ii) wrongly making findings of fact and/or drawing inferences which were matters that ought to have been left to the jury to determine?
In giving the judgment of the Court, Macrae VP set out a number of fundamental principles as essential building blocks for the correct approach to a submission of no case to answer.
- A submission of no case to answer is a question of law (not fact) to be decided by the judge;
- The judge of law should not encroach on the function of the jury as judges of fact;
- 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;
- Whether a submission of no case to answer is made at the close of the prosecution case or, in exceptional circumstances, later, the test to be applied is the same;
- The defence case should not be taken into consideration except insofar as it has been accepted by the prosecution or is otherwise objectively shown to be incontrovertible or irrefutable;
- The correct test is as stated in R-v- Galbraith  1 WLR 1039. However, in the light of diversions and developments in other jurisdictions it was necessary to re-affirm the application of Galbraith in Hong Kong as applied in AG-v- Li Fook Shiu Ronald  1 HKC 1 where it was stated:
“Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.
If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of ‘no case’ or an application for discharge in circumstances where the Crown’s case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:
- is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;
- is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;
- 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 he concludes that a jury could, may or might so be satisfied, he will rule against the submission or application.”
The Court of Appeal ruled that in each case there was sufficient evidence on which the jury could act and the trial judges had erred in each case when finding there was no case to answer.
A. At paragraphs 64 to 108 of the judgment, Macrae VP examined in great detail 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. This appears to have arisen in the High Court of Australia in the case of Peacock -v- The King (1911) 13 CLR 619 which was cited with approval 50 years later in Plomp -v- The Queen (1963) 110 CLR 234. Neither case was concerned with the approach to or the test for a submission of no case to answer but whether an appellate court should set aside a verdict based on circumstantial evidence if it regarded the evidence as admitting of an inference other than guilt. In the 1992 case of R-v- Moore (unreported and also concerning circumstantial evidence) the English Court of Appeal took a ‘wrong turn’ where Steyn LJ said, obiter, that when considering whether a submission of no case to answer ought to be allowed in a case dependant only on circumstantial evidence:
“It may be helpful for the judge to address specifically the question whether the proved facts are such that they exclude every reasonable inference from them save the one sought to be drawn by the prosecution. If the proved facts do not exclude all other reasonable inferences then there must be a doubt whether the inference sought to be drawn is correct.”
B. Macrae VP identified this judgment as the reason for the “wrong turn” which, although the Court of Appeal clarified very soon after, resurfaced again in R-v- Hedgcock & Others  EWCA Crim 3486 where Laws LJ quoted incompletely from R-v-Jabber  EWCA 2694 omitting the following important qualification:
“But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for the judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude.”
and this omission in turn led to a further wrong turn in R-v- Goddard & Fallick  EWCA Crim 1756 which was cited (wrongly) as the appropriate test in Hong Kong in Archbold Hong Kong 2022. The “diversionary gloss” in Goddard & Fallick risked leading judges away from the correct and more direct approach in circumstantial cases, compromising the second, third and fifth fundamental principles (see Question 1 above) and was unnecessary and unhelpful. This is not to say that a trial judge can rule there is no case to answer where there is incontrovertible evidence wholly irreconcilable with the prosecution case. But generally any resolution of inconsistency of evidence in a prosecution case must normally fall within the province of the jury.
C. Archbold Hong Kong 2022 wrongly cites Aikens LJ in R-v- Goddard & Fallick as part of the appropriate test in Hong Kong. This should not be applied in Hong Kong and Li Fook Shiu Ronald (above) was the correct approach to be adopted. (It appears that Archbold Hong Kong 2023 continues to cite Goddard & Fallick and it will be left to the 2024 edition to make the necessary amendments).
D. In each of these cases, all the defendants had been released and had left the jurisdiction following their acquittals. In England & Wales, the Crown may immediately appeal against a judge’s ruling of no case to answer under section 58 of Part 9 of the Criminal Justice Act 2003. In this way, a jury who may have sat for many weeks can be preserved and consequent waste of time and public resources averted, if an incorrect ruling is subsequently overturned on appeal. The Court of Appeal endorsed the Secretary for Justice’s suggestion that legislative reform be made to allow for a similar appeal mechanism in Hong Kong.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: No Case To Answer