Regina v Zhu Jian Chun [2015] SBHC 118; HCSI-CRAC 273 of 2013 (8 December 2015)

HIGH COURT OF SOLOMON ISLANDS
(PALMER CJ.)

Criminal Case Number 273 of 2013

REGINA

-V-

ZHU JIAN CHUN AND LUO DONG XIAO

Hearing: 3rd March 2015
Judgment: 8th December 2015

J. Naigulevu for the Crown/Appellant
J. Iroga for the Respondent

Palmer CJ.

1. This is an appeal by the Crown against the orders of the Magistrates' Court dated 5th July 2013 to dismiss the charges against the Respondents when a submission of no case to answer pursuant to section 197 of the Criminal Procedure Code (cap.7) was made.
   
2. The two respondents had been charged with various offences as follows:
   
   • (i) Zhu Jian Chun was charged with eight counts of offences under sections 153 and 155 of the Penal Code (cap. 26) and section 18 of the Immigration Act (cap. 60) respectively as follows:
     
     1. Count 1: Living on earnings of prostitution contrary to section 153(1)(a) of the Penal Code.
     2. Counts 2 – 5: Aiding prostitution contrary to section 153(1)(c) of the Penal Code.
     100. Counts 6: Permitting premises to be used as a brothel contrary to section 155(b) of the Penal Code.
     4. Counts 7– 8: Obtaining permit by false or misleading applications contrary to section 18(1)(a) of the Immigration Act.
        
   • (ii) Luo Dong Xiao was charged with six counts of offences under sections 153 and 313 of the Penal Code (cap. 26):
     
     1. Count 1: Living on earnings of prostitution contrary to section 153(1)(a) of the Penal Code.
     2. Counts 2 – 5: Aiding prostitution contrary to section 153(1)(c) of the Penal Code.
     100. Count 6: Receiving stolen property contrary to section 313(1) of the Penal Code.
          
3. Three grounds have been raised in support of the appeal as follows:
   
   • (i) That the learned trial Magistrate erred in law and in fact when she failed to take into account relevant considerations pertaining to the elements of the offences as well as the weight of the Crown's evidence.
   • (ii) That the learned trial Magistrate erred in fact and in law when she appeared to have disregarded the value of circumstantial evidence in the Crown's case.
   • (iii) That the learned trial Magistrate erred in law when she acquitted the Respondent without regard to the relevant statutory requirements and the correct test to be applied at that point of the proceedings.
     

(i) Test of a "sufficient case" to answer in a submission of no case.

4. Section 197 of the Criminal Procedure Code provides in a submission of no case as follows:
   

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused."

5. The test of a sufficient case has been restated as follows in numerous cases. In R. v. Maenadi Watson, Smith Pitapio, Youngston Watson and Saro Norman (Unrep. Criminal Case No. 16 of 1997) per Muria CJ at pages 3-5, his Lordship states that those words in section 197 mean: "Thus, it is not simply a matter of the prosecution adducing evidence to establish the essential element of the offence, but adducing evidence which is sufficient to make out a case against the accused. That is what the judge must be satisfied with under section 197 of the Criminal Procedure Code."
   
6. Note that case was referred to in Regina v. Tara [2005] SBHC 91, in which the court expressed the test as:
   

"Has a prima facie case been sufficiently made out so as to require the Defendant to state his defence? Is there evidence capable of supporting a conclusion beyond reasonable doubt that the accused is guilty? If there is the Defendant must be put on his defence." The court went on to say:

"...in the Magistrates' Court, the test to be applied is that there is either no evidence or insufficient evidence to prove the element of the charge."

7. The meaning of the word "sufficient" was also examined in several cases. In Lutu [1986] SBHC 16 Ward CJ stated:
   

"Where, however, there is some evidence but it is so little or unconvincing that it is insufficient even if un-contradicted by the defence to make a conviction possible, the court should not require the accused to make a defence." (at page 3).

Ward CJ went on to state:

"Clearly this is not the time to evaluate such matters as discrepancies between witnesses, or which parts of the evidence are credible and accurate and which are not. These are all matters for the conclusion of the evidence as a whole and, where there is evidence that could result in a conviction, then the accused must be put to his defence."

8. Also in Regina v. Philip Tahea and Ors Criminal Case No. 14 of 1995, the court considered the proper scope of judicial inquiry in a "no case submissions" and said at page 5:
   

"Does this mean that the court should not evaluate the evidence? The answer is no, but any weighing of the evidence by the judge or magistrate, required by a "no case to answer" submission at the close of the state case, should be kept to the absolute minimum."

9. The submission of the Crown in respect of this appeal is that had the test been applied properly, it would have been determined that a prima facie case had been sufficiently made out to require the respondents to make their defence. They say that the presiding magistrate had not applied that test properly and as a result made an order which was erroneous in the circumstances.
   

Law on circumstantial evidence.

10. The law on circumstantial evidence has been well documented in numerous case authorities. In Shepherd v. The Queen[1] Dawson J said (at page 579; 164; 184):
    

"Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be provided."

In Doney v. The Queen[2], Deane, Dawson, Gaudron and McHugh JJ said (at 211; 541; 159):

"Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded."

The Crown submits that the trial magistrate failed to take those recognised principles into account and thereby failed to acknowledge the value that they play in terms of the adduced evidence in support of the Crown's case which had that been done she would have found that there was sufficient material before the court for the defendant to be put to his defence.

Analysis of the evidence by the presiding Magistrate.

11. Zhu Jian Chun – Count 8: In relation to Zhu Jian Chun, he was also charged with two counts under Section 18(1) of the Immigration Act for assisting another person to obtain a permit by knowingly making a false or misleading representation to any immigration officer.
    
12. In her findings in relation of count 8, the learned Magistrate was not satisfied that any valid permit had been issued and concluded that prosecution had failed to show to the requisite standard there was any evidence to support prosecution's case that he knowingly made any false representation to any immigration officer and dismissed the charge.
    
13. Prosecution on the other hand submits that the element of the charge had been made out by virtue of the fact that there was evidence that the applicant was found to have been involved in other activities contrary to what was stated in the application form "to visit my family and business". Unfortunately, the finding by the learned magistrate that there was no evidence of any permit being issued made it difficult for the court to be satisfied that it had been shown that the defendant had made any false representation knowingly to mislead any immigration officer.
    
14. I am not satisfied that the learned Magistrate's finding was improper or without basis and the appeal regarding this provision should be dismissed.
    
15. Count 7: The appeal in respect of the learned Magistrate's finding under this count was not pursued and accordingly it is also dismissed.
    
16. Zhu Jian Chun – Count 1: Living on the earnings of prostitution contrary to section 153(1)(a) of the Penal Code and Counts 2-5, Aiding prostitution contrary to section 153(1)(c) of the Penal Code. The co-Respondent Luo Dong Xiao has also been charged with similar offences, under count 1 and counts 2 – 5 for aiding prostitution contrary to section 153(1)(c) of the Penal Code, and count 6 for receiving stolen property contrary to section 313(1) of the Penal Code.
    
17. The prosecution's case in respect of the evidence adduced before the Magistrates' court is that while there may be a combination of circumstances and which may not raise a reasonable conviction or more than a mere suspicion, when taken and considered as a whole it "may create a strong conclusion of guilt"[3].
    
18. The prosecution referred to much of the evidence in terms of the amount of money found on the premises where the girls resided with the defendants, materials confiscated from the same premises, observations of others in terms of movements in and around the premises, the way and manner the said premises was concealed and covered by a high walled fence and the windows shielded from public gaze and other evidence in terms of observations of visits to the Heritage Park Hotel and the Pacific Casino Hotel by some of the girls in the company of other Asian men, which when put together are consistent with the elements required to be proved by prosecution in terms of those offences.
    
19. In her judgment, the learned Magistrate however, pointed out at paragraph 57 that the charges of living on the earnings of prostitution or aiding prostitution against the two defendants will stand or fall on the issue of whether or not there is evidence presented to support a finding of fact that the following persons, Xehu Huang, Hou Qiong Pnag, Weing Zang and Min Liang were prostitutes. This has not been contradicted and I agree with her Worship that it is for prosecution to demonstrate beyond reasonable doubt as well that these girls were prostitutes and engaged in the illegal trade of prostitution over which these defendants had control over and were making illegal gains and profits from such activities.
    
20. This is where the learned Magistrate found that there was insufficient evidence to prove to the required standard that those girls were involved in such shady business of prostitution and that the two defendants were benefitting from their activities. While much of the evidence adduced was circumstantial, which the learned Magistrate adequately took into account, she was simply not satisfied it met the essential requirement of "sufficient evidence" or was sufficient to bridge that crucial gap between the girls, the subject of the allegations and the defendants in this case. The learned Magistrate pointed out that it was not for the court to second guess or draw conclusions from the evidence but for the Crown to show on the evidence that the offences against the two defendants had been made out to the required standard. She found the Crown had failed to do that and ruled that there was no case to answer and ordered the defendants to be acquitted.
    
21. One of the requirements where circumstantial evidence is relied on is for the prosecution to establish and exclude any reasonable hypotheses consistent with innocence[4]. I am satisfied the findings of the learned Magistrate were also consistent with that requirement of not satisfactorily excluding any reasonable hypotheses consistent with innocence.
    
22. I cannot fault the learned Magistrate's finding on this, I am satisfied she considered all the relevant evidence adduced before her, the tests on circumstantial evidence and the requirements necessary to be considered on a submission of no case to answer before concluding that the case be dismissed. I am not satisfied any error of law occurred in her findings and assessment of the evidence and accordingly order that the appeal be dismissed.
    

Orders of the Court:

1. Dismiss the appeal.
   
2. Uphold the orders of the Magistrates' Court to dismiss the charges against the two defendants on a submission of no case to answer and to have them acquitted therewith.
   

The Court.

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^[1] [1990] HCA 56; (1990) 170 CLR 573; 97 ALR 161; 51 A Crim R 181
^[2] [1990] HCA 51; (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157

^[3] DPP v. Kilbourne [1973] AC 729.
^[4] Luxton v. Vines [1952] HCA 19; (1952) 85 CLR 352, per judgement of Dixon, Fullagar and Kitto JJ at page 358.