HKSAR V Wu Wing Kit and Another

DCCC 1022/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1022 OF 2012

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RULING

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Issue

1.This is a retrial.  Both defendants (D1 and D2) gave evidence in the previous trial.  Prosecution apply for both defendants’ testimony to be admitted as part of the prosecution case in the retrial.  Prosecution also seek to adduce as part of the prosecution case such documentary exhibits each defendant produced in the previous trial. In each defendant’s case, I shall call his/her oral testimony and the documentary exhibits that defendant produced in the previous trial ‘the sought evidence’.  Counsel for D1 and D2 all object to the application.

2.After hearing submission from all parties, I rendered ruling on 6 March 2017 before Prosecution’s opening. I promised to deliver reasons later. This I now do.

Background

3.After a 40-odd day trial between 2013 and 2014, both defendants were each convicted of one count of money laundering.  For D1, it was the same charge which he faces in the retrial (Charge 1).  For D2, her previous single charge has now been split into 17 counts (Charges 2 – 18); each deals with a certain amount out of the aggregate sum stipulated in the original count. Thus each defendant currently faces the same allegation as he or she did previously.

4.Although the charges allege the defendants knew or had reasonable grounds to believe the money in question represented directly or indirectly proceeds of an indictable crime, Prosecution all along rely only on the ‘having reasonable grounds to believe’ limb.

5.In the previous trial, each defendant was found to have a case to answer.  Both elected to give evidence. D1 was in the witness box for 15 days, D2 for 10 days. D1 had one character witness; D2 called four witnesses to testify on the general issue. D1 produced over 1,200 pages of documentary evidence; in D2’s case, there were hundreds.

6.Both defendants were convicted as charged in September 2014.  The judge adopted the now defunct Shing Shiu Ming[1] test.

7.A month later, the Court of Final Appeal delivered judgment in the Pang Hung Fai[2] case.  It abolished the Shing Siu Ming test and affirmed the Seng Suet Fong[3] formulation in respect of the ‘having reasonable grounds to believe’ limb.

8.Following the Pang Hung Fai ruling, the Court of appeal overturned the conviction of both defendants and ordered retrial in May 2016. No party sought direction from the appellate court on the use of the sought evidence.

9.Mr Owen QC for D2 says he had spoken to Mr Caplan QC for Prosecution during the appeal.  He was told the retrial would run on the same line as the previous trial.

10.In September 2016, it was set down that the retrial would take place in late February 2017.

11.Mr Mitchell prosecuted on fiat in the original trial. Before December 2016, Ms Draycott SC was instructed to take up the prosecution.  Mr Mitchell is her junior.

12.In the pre-trial review on 19 January 2017, this court was informed of the current application.  Counsel for D1 and D2 were only alerted of such application on 16 January 2017, i.e. three days before the review. At that time, Prosecution still had to work on their opening.

13.On 26 January 2017, Prosecution had their opening ready (Bundle A).  It avers to the defendants’ previous testimony in many places.

Prosecution submission

14.Ms Draycott SC contends the evidence given by either defendant in the previous trial, though generally exculpatory, can link the respective defendant to the factual context which Prosecution want to prove against them. Thus the evidence given by each defendant may be regarded as a kind of mixed statement against that defendant. 

15.In D1’s case, Ms Draycott gives some examples of use.[4] In D2’s case, Ms Draycott pinpoints the defendant’s description of the movement of funds between herself and others. It is also suggested that some of D2’s evidence was lies that may be indicative of guilt.[5]

16.Ms Draycott submits the sought evidence is relevant and admissible against the respective defendant and ought to be placed before the jury.

17.Ms Draycott refers to a string of foreign cases,[6] where the court allowed the defendant’s previous testimony to be admitted as prosecution evidence in the retrial.

18.In Hong Kong, there has not been an identical case.  Ms Draycott resorts to the case of Chan Chun Chuen.[7] She also says the Kissel case[8] in D1’s bundle (F/6 & 7) can lend her support.

19.In a nutshell, Ms Draycott says D1’s and D2’s testimony in the previous trial is relevant to their alleged guilt and admissible as a kind of mixed statement.  In D2’s case, some evidence of hers can be lies evidence indicative of guilt. She says this court should not exercise discretion to rule out the sought evidence.  She heavily relies on what Lord Parker CJ said in R v McGregor[9], at page 377:-

“Secondly, it is said that it was unfair. As the court understands it, Mr Dovener says it was unfair, because it no doubt did cut the ground from under his feet and prevented him from making a submission of no case. It is also said to be unfair in that really if the defendant were to stand any chance he would have to give evidence. In fact he gave no evidence at all. Unfair in that sense it may have been, but unfair in the general circumstances of the administration of justice it was certainly not.”

D1’s Submission

20.Mr Blanchflower SC contends that D1’s previous testimony is hearsay for the purpose of retrial.  It is therefore inadmissible.

21.He also submits what Prosecution want to do now is uncommon and is definitely not within the statutory regime.

22.As to the common law, Mr Blanchflower says the foreign cases cited by Prosecution are distinguishable and they have not considered human rights much or at all.  He criticises many of those cases as stale while the notion of fairness would move on, according to Lord Bingham in R v H[10]:-

“But it is important to recognize that standards and perceptions of fairness may change, not only from one century to another but also, from one decade to another.”

23.Mr Blanchflower submits it is unfair for Prosecution to include D1’s previous evidence as part of the prosecution case in the retrial, for that tantamounts to recruiting D1 to testify against himself. This violates his right not to incriminate himself. If the application is allowed, there is bound to be a case for D1 to answer and he will also be compelled to give evidence because there is already his own case included as prosecution evidence.  Such evidence would not be comprehensible to the retrial judge as the latter does not have the benefit of seeing D1 testify in the previous trial. D1 must therefore explain it to the retrial judge lest the latter might not understand or might even misunderstand his earlier evidence.  The defendant’s right to remain silent is thereby breached.[11]

24.Counsel also says D1’s evidence was given to meet the prosecution case in the previous trial.  However, the retrial judge lacks the opportunity of checking the other evidence from the previous trial which is simply not admissible. While Prosecution would prove their case again, the evidence emerging in the retrial might not be the same as the last occasion.

25.Counsel also complains that the previous judge had intervened on a number of occasions when D1 gave evidence.  At those asterisked entries, the judge had expressed skepticism and even disbelief. Thus it is undesirable to have D1’s evidence placed before the retrial judge. [See Appendix to D1’s Reply dated 2 March 2017; Bundle E.]

26.Counsel submits if the application is allowed, Prosecution would gain advantage out of an order for retrial while the defendant cannot enjoy the same because he cannot ask for his own evidence to be admitted under any rule.

27.Mr Blanchflower says the Chan Chun Chuen case should be distinguished because the previous hearing was a probate proceeding, which was civil in nature.

28.As to the case of Kissel, Mr Blanchflower finds comfort in  para 58 E - G of the Court of Final Appeal judgment:-

“…. Our view that evidence which contravenes section 9N(b) is inadmissible in the subsequent trial will protect an accused person and assist in achieving an important purpose of the provisions, namely that of enabling an applicant to present his bail application fully without being exposed to the risk of giving oral evidence which will be used against him at trial.  In passing we should mention, though it has no consequences for the present case, that the expression “as to the alleged offence” includes defences to, as well as the elements of, the alleged offence.”

He submits a defendant should not be exposed to the risk of giving evidence in a trial which will be used against him in any unexpected retrial.

29.Counsel also cites Wong Kam Ming[12] and Brophy[13].  Those cases ruled that the evidence given by a defendant in voire dire was not admissible as evidence in trial proper.

30.Mr Blanchflower asks me to do what the Canada Supreme Court did in R v Dubois [14], which was affirmed in R v Henry[15]. The court opined that admitting in the retrial a defendant’s previous evidence was derogation of his right to silence and not to incriminate himself because a defendant in that situation would be conscripted to give evidence in the retrial.

31.Lastly, Mr Blanchflower avers to Secretary for Justice and Lam Tat Ming & Another[16] for discussion of fairness.  He submits that even if I find D1’s evidence admissible by its attributes, I should exercise discretion to exclude it in order to maintain a fair trial for the defendant because the prejudicial effect of the sought evidence far outweighs the probative effect.

D2’s Submission

32.Mr Owen QC adopts Mr Blanchflower’s submission. He says the Prosecution’s application would effectually render the retrial order nugatory.

33.Mr Owen says D2’s evidence by itself is all the more incomprehensible to the retrial judge because four other defence witnesses had testified in D2’s case and the retrial judge lacks the means of checking their testimony for proper assessment of D2’s evidence as given.

34.As to the lies allegation, Counsel submits that Prosecution do not have independent evidence to prove the so-called lies.  Nor have Prosecution identified all the alleged lies or the evidence purportedly capable of showing the alleged lies were in fact lies.

35.Mr Owen also urges me to follow the Canadian cases of Dubois and Henry to safeguard D2’s rights and fairness in this retrial.

Discussion

Relevance

36.There should be little quarrel that the evidence given by D1 and D2 in the previous trial is relevant to the retrial. Since each defendant now faces the same allegation as he or she did in the previous trial, what each elected to say in his or her own case then must be pertinent to the issues on trial now.

37.There is suggestion that there might be something not relevant to guilt/innocence in the vast testimony given by each defendant.  My view is that a defendant’s testimony should be considered in its entirety.  The evidence would be relevant directly or indirectly to the issues on trial then, and also now.

Admissible as mixed statement

38.Each defendant gave evidence to meet the prosecution case in the previous trial.  What they said, even though exculpatory, can serve as ‘an admission of fact which is significant to any issue in the case, meaning capable of adding some degree of weight to the prosecution case on an issue which was relevant to guilt’.[17] In that sense, what D1 and D2 testified when answering the prosecution case in the previous trial may be regarded as mixed statement and can be admissible as an exception to the hearsay rule.

Discretion/Fairness

39.The court has to ensure that a trial is fair.  Sometimes, it would apply the exclusionary rule to reject potentially admissible evidence if it is unfair to admit such evidence.

40.In the case of Lam Tat Ming, it was held a judge had the overriding duty to ensure a fair trial for the accused.  Unfairness was to be judged against what was required to secure a fair trial for the accused.  In exercising the residual discretion to exclude a voluntary confession, the judge had to consider whether it would be unfair to the accused to use the confession against him at trial.  And the protection of the accused’s right of silence was a principle of a fair trial.  Such discretion should seldom be employed.  But where the accused’s right of silence was infringed, the court might exclude it in the exercise of its residual discretion.  In answering whether the right of silence was infringed, the law had to apply practical common sense.  [page 169 B-I]

41.Li CJ said at page 179 C-D that “Unfairness in this respect is to be judged against and only against what is required to secure a fair trial for the accused”.  After issuing a reminder that “it is important to observe that in a just society, the conviction of the guilty is in the public interest, as is the acquittal of the innocent”, he went on to state:-

“The requirement of a fair trial for the accused involves the observance of principles including the following which are relevant in this appeal:(1) No man is to be compelled to incriminate himself; his right of silence should be safeguarded. (2) No one can be convicted except upon the probative effect of admissible evidence. To ensure a fair trial for the accused, the court will exclude admissible evidence the reception of which will compromise these principles.” [page 179 E-F]

Defendants’ rights

42.A person has right of silence and right not to incriminate himself. Such common law rights have been entrenched by Article 11 of the Bill of Rights Ordinance, Cap 383:-

(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality –

…

(g) not to be compelled to testify against himself or to  confess guilt.

43.S. 11 (1) and s. 11(2)(g) of the Hong Kong provision are the respective equivalent of s. 11(d) and s. 11(c) of the Canada Charter of Rights and Freedoms. It was for violation of such rights that the Canada Supreme Court allowed the appeal in Dubois, which decision was later firmly approved in Henry. 

44.Ms Draycott says the law in Canada is different because the Canada Charter of Rights and Freedoms has section 13, which reads:-

13.   A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Ms Draycott submits that there is no equivalent in the Hong Kong Bill of Rights Ordinance.

45.There is indeed no local equivalent of s.13 of the Canada Charter but in my opinion it is only a reinforcing section.  The Canada Supreme Court decided Dubois on the state’s violation of the defendant’s right of silence and his right not to incriminate himself.  At page 365, the court said:-

“42. I do not see how the evidence given by the accused to meet the case as it was in the first trial could become part of the Crown’s case against the accused in the second trial, without being in violation of s 11(d), and to a lesser extent of s 11(c). For the accused is being conscripted to help the Crown in discharging its burden of a case to meet, and is thereby denied his or her right to stand mute until a case has been made out.

43.   To allow the prosecution to use, as part of its case, the accused’s previous testimony would, in effect, allow the Crown to do indirectly what it is estopped from doing directly by s. 11(c), i.e. to compel the accused to testify.  It would also permit an indirect violation of the right of the accused to be presumed innocent and remain silent until proven guilty by the prosecution, as guaranteed by s 11(d) of the Charter...”

46.There was indeed some disquiet of the Dubois ruling.  However later on in R v Henry, the same court but consisting of nine other senior judges affirmed Dubois and refused the Attorney General’s application for a different ruling. That court said:-

“39.   The Attorney General of Canada submits that the Court  should overrule Dubois and hold that s. 13 has no application to a retrial. The rationale underlying Dubois for extending s. 13 protection to an accused in a retrial, however, was because when a “new” trial is ordered the accused is entitled not to testify at all.  Thus, to allow the Crown simply to file the testimony of the accused given at the prior trial (now overturned) would permit the Crown indirectly to compel the accused to testify at the retrial where s. 11(c) of the Charter would not permit such compelled self-incrimination directly.  The Crown must prove its case without recruiting the accused to self-incriminate.  As Lamer J. pointed out,

the accused is being conscripted to help the Crown in discharging its burden of a case to meet, and is thereby denied his or her right to stand mute until a case has been made out. [Emphasis in original; p. 365.]

40.   Dubois, to repeat, was an attempt to compel testimony.  The result was correct and we should decline the invitation to revisit it.”

47.Ms Draycott relies on the local cases of Chan Chun Chuen and Kissel to say the Court of Appeal and the Court of Final Appeal here did not follow Dubois or Henry but preferred McGregor.  Her perception is wrong, with respect.

48.In Chan Chun Chuen, the primary basis of objection was the probate evidence being inadmissible as hearsay. There was insufficient discussion of unfairness stemming from violation/derogation of a defendant’s right not to incriminate himself and his right of silence.

49.As to Kissel, the appeal turned on the fact that the bail application evidence was in breach of s. 9(N)(b) of the Criminal Procedure Ordinance, Cap 221.  The Court of Final Appeal need not discuss the rights/fairness issue. And it is wrong for Ms Draycott to say the Court of Appeal in that case had denounced Dubois or Henry. It had not. The Court of Appeal just did not agree the defendant’s rights should give rise to total immunization so much so that the bail application evidence could not be brought in to cross-examine the defendant.  On this point, the Court of Final Appeal merely went on to say the evidence could even be made part of the prosecution case.  But as said, the case was decided on the confirmed breach of s. 9N(b).  More significantly, the adduced evidence was from bail application proceedings, not from a previous trial where the defendant had testified as in the present case.  Thus Kissel was of another situation and different consideration.

50.Including the defendants’ previous evidence as part of the prosecution case in the retrial would be a stark example of breaching their right not to incriminate themselves and their right of silence.

51.In the previous trial, D1 and D2 only felt obliged to testify after Prosecution had established a prima facie case against them.  They chose to testify in court and to produce exhibits in order to meet the prosecution case in that trial, hardly expecting there would be a retrial.

52.If Prosecution are allowed to include the defendants’ previous testimony, then such evidence without more can constitute prima facie evidence against them in the retrial.  The defendants would in effect be testifying against themselves as prosecution witnesses.

53.Not just that; neither defendant can choose to remain silent in the retrial if their previous evidence is already on the table. Each would feel compelled to explain or expand his/her previous evidence as included in the prosecution case. The defendants can hardly leave their previous evidence on itself to the new jury, who did not have the benefit of seeing how they testified in the previous trial. As the Canada Supreme Court commented in Dubois and Henry, the defendants in such circumstance would be conscripted to testify and are thereby denied of their right to stand mute in the retrial.

Comprehensiveness of previous evidence

54.Transcripts are not always evident by themselves.  The testimony of a witness (including a defendant) has to be assessed on what is said and how it is said.  Observing a witness’s demeanour is important. 

55.Furthermore, a defendant’s evidence can only be properly assessed in the entirety of the whole case including not just the evidence of the defendant but also that of his/her own witnesses and all the prosecution witnesses.  However, there is no way to bring in such other evidence from the previous trial. Prosecution will prove their case again.  No one should assume the prosecution evidence must come out exactly the same as it was in the previous trial. The same witnesses might deviate from their original version to various extents. And it is worthy to note that Prosecution now have one additional witness Katherine Chan (the chairwoman of the ‘462’ company), whose evidence is purported to be important. So it can be forecast that the evidence against the defendants may be somewhat different from the last occasion,  at least in the details. That affords a further ground that the defendants’ previous evidence ought not be introduced by Prosecution at this stage.

Previous testimony

56.In a nutshell, Ms Draycott wants to include in the prosecution case each defendant’s previous testimony so that the jury in the retrial would know what the two had said in their defence.

57.However, one cannot assume (i) without the defendants’ previous testimony included in the prosecution case, Prosecution must be able to establish by other evidence a prima facie case for either defendant to answer; (ii) if there is a case for each defendant to answer, they would elect to give evidence; and (iii) if they choose to give evidence, they would testify differently from the last occasion to such extent that they can be cross-examined against their previous statement.

58.Ms Draycott worries that if the defendants elect not to testify in case Prosecution can establish a prima facie case against them in the retrial, the new jury would be deprived of what the two had said about the allegations.  That is true but one also has to worry in such situation, the new jury may be unable to comprehend correctly the defendants’ previous evidence without the opportunity of seeing them testify in the previous trial and without the benefit of coming to grips with the other evidence adduced in the previous trial.  In such circumstance, the new jury can hardly make proper assessment of the defendants’ previous evidence.  Placing such evidence before the retrial jury is thus unfair to the defendants.

59.It is true that Prosecution should be allowed to build a thorough case against a defendant without missing anything relevant and admissible. Yet, it does not mean evidence can always be admitted regardless of the means or circumstance it is obtained.  If the means or circumstance is such that it will give rise to great prejudice not conducive to a fair trial, then the evidence must be rejected however appealing it looks from the Prosecution’s perspective.  In the case of Lam Tat Ming, the defendant’s confession had to be ruled out because the defendant’s rights to silence and not to incriminate himself were breached.  The prejudicial effect of the concerned evidence outweighed the probative value considerably.  It is also the case here.  However appealing to Prosecution the sought testimony might be, it ought not be admitted for the purpose of a fair trial for these reasons:-

(i)  The defendants’ right not to incriminate against themselves would be seriously compromised.

(ii)  Their right of silence would be breached.

(iii)   The sought evidence in each defendant’s case is not wholly intelligible absent the other evidence as adduced in the previous trial.

Lies

60.Ms Draycott wants to make use of some of D2’s evidence to say she had lied, thus undermining her credibility and also indicating her guilt.

61.It remains to be seen whether Prosecution can prove with independent evidence that D2 had lied if her previous testimony can be admitted.  But the fact is that such evidence cannot be admitted as part of the prosecution case for the reasons stated above.  It therefore does not matter at this stage whether part of D2’s previous testimony may be used as lies evidence against her.

Documentary evidence

62.There is a second part of Ms Draycott’s application.  She wants to adduce the documentary evidence produced by the defendants in the previous trial, not to show they were true but to show how they were made use of by the defendants to explain the payments into their bank accounts.  Ms Draycott says such documentary evidence may be admitted even without the transcript of the defendants’ oral evidence.  [See para 25 of Prosecution’s application, Bundle D.]

63.The documentary evidence produced by the defendants in the previous trial was ancillary to their oral testimony as part of their defence case. When the testimony of D1’s and D2’s is excluded as part of the prosecution case in the retrial, the said documentary evidence should also be excluded for the same reasons.  Furthermore, those documents cannot be meaningfully admitted as part of the prosecution case absent the previous testimony of the defendants.

Ruling

64.I refuse Prosecution’s application to adduce the defendants’ previous testimony or documentary evidence as part of the prosecution case in this retrial.