HKSAR v. Chan Yiu Shing and Others

(Ruling 6)

HCCC 41/2016

[2018] HKCFI 310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 41 OF 2016

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RULING ON THE ADMISSIBILITY OF THE 3^rd DEFENDANT’S ALLEGED STATEMENT

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1.When the 3^rd defendant was arrested by DPC 34962 Chan Chun-kan (PW6) on 14 June 2015, it is claimed that after being cautioned he said: “I am making bombs to kill you, all police. I hate you. Democracy forever.”

2.The police officer made a notebook entry of the alleged statement but the 3^rd defendant refused to sign it.

3.The prosecution wish to adduce the alleged statement in evidence at the trial of the 3^rd defendant through the police officer concerned. 

4.Mr John Haynes, counsel for the 3^rd defendant, applies for this evidence to be excluded from the trial of the 3^rd defendant. He submits two grounds in support of his application.  First, the alleged statement does not amount to a confession relevant to the charges that the 3^rd defendant faces.  Secondly, the alleged statement is disproportionally prejudicial to the fair trial of the 3^rd defendant.

5.Before I discuss this issue, I should note that the Re‑Amended Indictment contained six counts.  The first count alleged a conspiracy to make explosives against all the defendants.  The second count alleged possession of explosives against the 2^nd defendant.  The third count alleged possession of explosives against the 3^rd defendant. The fourth count alleged possession of explosive against the 1^st defendant. The fifth count alleged attempting to make explosives against the 3^rd defendant. In that count, the explosive substance was particularised as triacetone triperoxide, commonly known as TATP.  The sixth count alleged possession of explosives against the 3^rd defendant. 

6.In relation to the Re-Amended Indictment, after arraignment, the prosecution offered no evidence on the fifth count.  The 3^rd defendant was therefore acquitted of that count.  See section 51A of the Criminal Procedure Ordinance, Cap 221.  It is therefore impermissible for the prosecution to make any allegations as reflected by the fifth count at the trial of the 3^rd defendant in relation to the other counts that he still faces.  The Re-Amended Indictment was replaced by removing the fifth count.  The 3^rd defendant therefore faces the previous conspiracy count and the two possession counts.

7.As I have noted, when Mr Haynes raised his objection to the admissibility of the alleged statement, he sought to mount his challenge on two bases.  First, on the ground that the alleged statement did not support any of the counts in the indictment.  Secondly, on the ground that the 3^rd defendant was subjected to violence and oppressive conduct by the police when the alleged statement was made.  As to the second ground, it was put that alleged statement was not made, but if it was found to have been made, it was not a voluntary statement.

8.As it emerged in the course of submissions there was the more fundamental issue that ended up being the sole focus of this application, namely whether the alleged statement’s prejudicial effect outweighed its probative value and should be excluded.

9.Mr Jonathan Man, for the prosecution, maintain his reliance on the alleged statement as part of the prosecution case but acknowledged that the phrase “to kill you, all police” was likely to be an exaggeration by the 3^rd defendant and may not have reflected his genuine intention. He later conceded that there was a high risk of prejudice against the 3^rd defendant by this phrase being adduced at his trial. 

10.More particularly, what Mr Man was tacitly acknowledging was that the phrase would have an unduly prejudicial impact on the 3^rd defendant’s fair trial in relation to the counts he now faces. 

11.At one stage of Mr Man’s submissions, he sought to argue that the prosecution would not rely on this phrase of the alleged statement but would rely on what remained.  In other words, he wanted to rely on the statement: “I am making bombs … I hate you.  Democracy forever.”  When he was asked to explain the relevance of the phrases “I hate you” and “Democracy forever” he said this reflected on the 3^rd defendant’s alleged anti-establishment attitude and desire to cause civil unrest.  I am not quite sure how this relates to the prosecution case.  In any event, it is clear that the statement cannot be truncated as it was clearly made (if accepted that it was made) in relation to the police at the time of his arrest.  Excising the part about the police would further distort the statement and would give a different and unfair meaning to it.

12.As I understand the prosecution case, it is not alleged against the 3^rd defendant that he was making bombs to kill police.  That in itself reflects the highly prejudicial impact the statement would have on the fair trial of the 3^rd defendant.  There is much in the observation that the alleged statement, if said, was made in the heat of the moment and was an angry and emotional response by the 3^rd defendant in the circumstances that prevailed at the time. 

13.A court should exercise its discretion to exclude evidence if its prejudicial effect is out of proportion with its probative value.  See Secretary for Justice v Lam Tat Ming (2000) 3 HKCFAR 168 and Kissel v HKSAR (2010) 13 HKCFAR 27 at paragraphs 96, 120 and 121.

14.I am of the view that it suffers both as to its relevancy and reliability as a statement against interest.  In my view, the prejudicial effect of the impugned evidence far outweighs any probative value that the prosecution sought to retain by relying on parts of it.  In any event, the alleged statement would be the cause of unacceptable unfairness to the 3^rd defendant.

15.For the foregoing reasons, I exercise my discretion to exclude the evidence concerning the alleged statement by the 3^rd defendant.

Mr Jonathan Man, SADPP, and Mr Gary Leung, SPP of Department of Justice, for HKSAR

Mr John Haynes, instructed by Krishnan & Tsang, assigned by Director of Legal Aid, for the 3^rd defendant