HKSAR v. Chan Yiu Shing and Others

(Ruling 10)

HCCC 41/2016

[2018] HKCFI 314

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 APPLICATION FOR SEVERANCE

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Introduction

1.On 15 February 2017, I ruled that the video recorded caution statements and the reconstruction of the 5^th defendant were admissible.  This has brought a response from the other defendants, namely, the 1^st to 4^th defendants, in the form of an application for a separate trial from the 5^th defendant. 

2.The basis of the application stems from what the 5^th defendant said about the other defendants in his out of court statements in relation to Count 1 (the conspiracy count).  The other defendants have not made out of court statements, and the evidence against them is largely circumstantial.[1]

3.Even though the 5^th defendant’s out of court statements are only admissible against him, the four defendants complain that what the 5^th defendant said about them is so prejudicial that no direction from the Court or any other remedial measure would avoid the jury from improperly taking them into account when considering separately the case against each of the four defendants.  In other words, the 5^th defendant’s statements would deprive the four defendants of a fair trial. 

Power to order a separate trial

4.The court has the power to order the separate trial of the accused or of offences that are properly joined in one indictment, pursuant to section 23(3) of the Criminal Procedure Ordinance, Cap 227.

5.Section 23(3) reads: 

“Where, before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

6.The discretion of the court under section 23(3) is wide but like all discretions it must be exercised judicially.  Guidance has been given as to how to exercise the discretion by Lord Pearson in Ludlow v Metropolitan Police Commissioner[2] who was then addressing the English equivalent of our section, section 5(3) of the Indictments Act 1915.  He said:

“…the manifest intention of the Act is that charges which either are founded on the same facts or relate to a series of offences of the same or a similar character properly can and normally should be joined in one indictment, and a joint trial of the charges will normally follow, although the judge has a discretionary power to direct separate trials under section 5(3). … The judge has no duty to direct separate trials under section 5(3) unless in his opinion there is some special feature of the case which would make a joint trial of the several counts prejudicial or embarrassing to the accused and separate trials are required in the interests of justice. In some cases the offences charged may be too numerous and complicated…or too difficult to disentangle…so that a joint trial of all the counts is likely to cause confusion and the defence may be embarrassed or prejudiced. In other cases objection may be taken to the inclusion of a count on the ground that it is of a scandalous nature and likely to arouse in the minds of the jury hostile feelings against the accused…”[3] (Emphasis added)

7.The application of the principles as stated by Lord Pearson will very much depend upon the individual facts of particular cases. 

The severance applications

8.Counsel for the defendants made the severance application in very broad and general terms without identifying the alleged prejudicial statements of the 5^th defendant, and how such statements would prejudice or impact on the fair trial of the defendants.  I requested that counsel address me on these matters in writing.

9.At the hearing on 20 February 2017, I was informed by Mr Randy Shek, for the 1^st defendant, that he was no longer pursuing the application and would deal with the issue by agreeing with the prosecution to have the names of the four defendants mentioned by the 5^th defendant removed and replaced by some anonymous reference, such as a letter of the alphabet. 

10.Mr Douglas Kwok, for the 2^nd defendant, said he needed time to consider his position in relation to the application but had not provided anything in writing as requested by the Court. 

11.Mr John Haynes, for the 3^rd defendant, said he was pursuing the application and submitted a written submission, setting out what the 5^th defendant said about his involvement with the other defendants, in particular, the 3^rd defendant.  

12.Mr Thomas Iu, for the 4^th defendant, said he was not pursuing the application, but later seemed to change his position. 

13.Mr Jonathan Man, for the prosecution, opposed the application, although he changed his position during the course of oral submissions.  He initially referred me to the case of R v Wu Yin Wor,[4] where the Court of Appeal noted that difficult matters sometimes arise during the trial process that a judge or jury are expect to address.  He quoted the following passage from that case:

“It was put to Mr. Sanguinetti, in the course of argument, that what he has described as unnecessary and perhaps prejudicial mental gymnastics which the Judge might have to perform under such circumstances are precisely the kind of gymnastics that Judges and juries do have to perform when, in the course of a trial, statements of co-accused are produced in which matter adverse to the interest of a particular prisoner is contained. Such instances are frequent and it has not been suggested that that task is beyond the powers of the jury. Neither should such a task be beyond the powers of a Judge or magistrate sitting alone.”

14.Mr Man then went on to refer to HSKAR v Wong Lin Hung & Ors,[5] where the issue before the Court of Appeal concerned the putting into evidence at trial the video recorded interview of the appellant’s co-accused, which was completely exculpatory but contained allegations against the appellant which were, it was submitted, prejudicial.  The Court referred to the case of R v Bowen[6]from which the following sentence was quoted with approval:

“to put (the co-defendant) statements as to the time of the offence to the jury and tell them they were not evidence against (the defendant) was to ask them to perform a feat of mental gymnastics of which they should not be expected to be capable.”

15.The Court noted that unlike in the case of Bowen, it was never the intention to rely on the content of the co-accused of the appellant as evidenced against him and that the judge had repeatedly reminded the jury that they must not do so. 

16.More to the point in addressing his argument, Mr Man referred to the case of R v Chau Wai Keung & Anor.[7]  In that case the Court of Appeal held that the prejudice of admitting the statements of a co-defendant was not so strong that no jury could possibly put them from their mind in relation to other defendants, and in any event the prejudice could be cured by a firm and clear direction in the summing up. 

17.The Court explained that the question of possible prejudice to the other defendants arising from the use of co-defendant’s statements against him should be considered in light of the admissible evidence against the other defendants.  In that case, as there was ample evidence before the jury in relation to one of the other two defendants, the Court noted that it was unlikely that the prejudicial statements would have influenced the jury despite the judge’s direction.  As to the other defendant, the Court noted that even though the evidence was less strong against him, there was no real danger of the jury taking into account the co-defendant’s statements when considering the evidence against him. 

18.The Court adopted the reasoning of Lord Widgery CJ in R v Lake.[8] In that case, an application to order separate trials on the grounds that the co-accused had made statements naming the appellant was refused.  Lord Widgery CJ said:

“The judge declined to order separate trials and we think that he was right. It has been accepted for a very long time in English practice that there are powerful public reasons why joint offences should be tried jointly. The importance is not merely one of saving time and money. It also affects the desirability that the same verdict and the same treatment shall be returned against all those concerned in the same offence. If joint offences were widely to be tried as separate offences, all sorts of inconsistencies might arise. Accordingly it is accepted practice, from which we certainly should not depart in this Court today, that a joint offence can properly be tried jointly, even though this will involve inadmissible evidence being given before the jury and the possible prejudice which may result from that. Of course the practice requires that the trial judge in such a case should warn the jury that the evidence is not admissible, and this trial judge was certainly not lacking in his duty in that regard because he on no less than eleven occasions pointed out to the jury that the evidence in question was not admissible.

However, the question of severance is primarily one for the judge. The discretion was properly exercised in the present instance and notwithstanding the fact that there must have been some risk of prejudice, the decision of the judge was, we think, right. Of course if a case is strong enough, if the prejudice is dangerous enough, if the circumstances are particular enough, all rules of this kind must go in the interests of justice but this is not the sort of case in which the ordinary rule of practice, in our judgement, will operate unduly to the detriment of the accused and, therefore, it is a case in which we should apply the ordinary rule.”[9]

19.The ordinary rule referred to by Lord Widgery CJ was a reference to the proposition that persons accused of taking part in the same crime should be jointly tried.[10] In such cases, Lord Widgery CJ adopted the test in R v Smith,[11] that “if one totally disregarded the prejudicial evidence, would a jury be expected to convict upon what remained and, if they did convict, would the court regard the conviction as one which was safe and satisfactory to allow to remain.”  This test also found favour with the Court of Appeal in Chau Wai Keung, but it seems to be a more appropriate test when the issue is being considered by an appellate court. 

20.As a fallback position, Mr Man referred to Silcott & Ors[12] where the names of other defendants in a co-defendant’s caution statement were given an anonymous reference.  It was at this stage in oral submissions that Mr Man abandoned his primary ground and said that the prosecution was prepared to excise from the 5^th defendant’s statements references to the other four defendants and refer to them anonymously by a letter of the alphabet. 

21.When I pointed out the consequences to the prosecution case by taking this position, Mr Man reverted back to his primary ground.  What I pointed out was that Count 1 alleged a conspiracy to make explosive substances by all five named defendants and that the case against the 5^th defendant relied on his admissions regarding what he had said and done with the other named defendants.  By removing their names, the prosecution case was left with the 5^th defendant having said and done things with unknown persons where the conspiracy count named his co-conspirators. 

22.The position taken by Mr Shek and Mr Kwok for their respective defendants was to rely on the prosecution’s proposal to remove the names of the four defendants, and any reference to them, from the 5^th defendant’s statements. 

23.Mr Haynes maintained his application for severance.  He referred to the numerous references to the 3^rd defendant by the 5^th defendant in his statements which he submitted tended to suggest that the 3^rd defendant was responsible for the 5^th defendant’s involvement in the matter.  In addition, he referred to other references that he described as highly prejudicial, concerning their membership in the organisation “the National Independent Party” and that they intended to use smoke grenades to cause chaos. 

24.Mr Haynes cited R v O’Boyle,[13] where Lord Lane CJ, giving the judgment of the Court of Appeal, referred to the authorities of R v Grondkowski and Malinowski[14] and R v Miller,[15] for the general rule that conspirators should be tried together in order, amongst other things, to avoid each taking advantage of the other’s absence to secure an unjust acquittal, but in the wholly exceptional circumstances of that case concluded that the judge exercised his discretion wrongly by not ordering separate trials.  In that case, the appellant was charged with two separate conspiracies on two counts.  On the second count, he was charged together with a co-defendant.  A statement which was said to be a confession was ruled inadmissible against him but the co-defendant sought to cross-examine him on that statement.  The appellant submitted at trial that such cross-examination of him was irrelevant and thus should not be allowed, and in the alternative if relevant, a separate trial should be ordered.  The trial judge rejected both submissions and in consequence the appellant wished to give no further evidence and refused to re-enter the witness box.  The trial judge ordered him to return to the witness box which he did.  The facts and circumstances of that case were exceptional and not apposite to the present case. 

25.At this stage, Mr Iu adopted Mr Haynes’ submissions, but added that the 5^th defendant’s admissions went further than the conspiracy particularised in Count 1, as the 5^th defendant said they were intending to use smoke bombs to cause chaos at the demonstration outside the Legislative Council when the political reform proposal was fixed to be voted upon in June 2015.  That maybe so, but the issue for the jury is whether the admissions of the 5^th defendant if accepted as true prove the conspiracy alleged against him so that they are sure.  He also noted that there was no evidence against the other four defendants that they were members of the National Independent Party or that they were intending to use the smoke bombs to cause chaos at the demonstration outside the Legislative Council. 

26.As I will explain this can be dealt with by an appropriate direction to the jury.  The courts place great faith in juries, and that they will abide by directions in accordance with their oath. 

Discussion

27.In the present case, the 5^th defendant is charged with having conspired with the other defendants to make explosives.  It has been held that only in exceptional cases will separate trials be ordered for two or more defendants who are jointly charged with participation in one offence.  Clearly as a general rule, it is in the public interest that defendants that are jointly indicted should be tried together.  It would only be in exceptional circumstances, where the interests of justice so demand, that separate trials would be ordered.  Such exceptional circumstances may be where the case is long or complicated and therefore desirable to order separate trials.[16] 

28.In cases of conspiracy there is a high desirability of trying co-conspirators together.  As a general proposition this is based on sound practical sense and fundamental legal principles.[17] 

29.In any event, there is no rule of law that separate trials should be ordered where an essential part of one defendant’s defence amounts to an attack on the co-defendant, although it is a matter that a court should take into account in deciding whether or not to order separate trials.[18]

30.It is accepted, however, depending upon the circumstances of the case, that the prejudice to co-defendants from incriminating remarks made in interview can sometimes be mitigated by suitable editing.[19]

31.The power under section 23(3) will only be exercised where there is a special feature in the case which would make a single trial prejudicial or embarrassing to the accused or for any other reason that the court would exercise its discretion to order separate trials. 

32.Ultimately the question as to whether to exercise the power will depend on how the interests of justice are best served, taking all the circumstances and interests into account but bearing in mind the accused’s right to a fair trial.  So when we talk about whether there is a special feature in the case that would make a single trial prejudicial or embarrassing to the accused or for any other reason we are in fact saying is there a good reason to order a separate trial because of the real risk that the trial will result in unfairness to the accused or offend the interests of justice.

33.After careful consideration, I am of the view that the severance application should be refused. 

34.In cases where multiple defendants are jointly charged with an offence such as a conspiracy offence, it is clearly in the interests of justice that they be tried together.  It is not uncommon in such cases for co-defendants to make allegations against each other in contesting the offence. 

35.It has been said that fairness is judged in practical and not absolute terms, and that the court places its faith primarily in the efficacy of measures available to overcome any potential unfairness. 

36.In the case of a trial before a judge and jury what should not be overlooked, or underestimated, is the role of a jury and the faith that is placed in the jury to abide by directions and fulfil their oath to ensure a fair trial for a defendant.[20]

37.I have considered the contents of the 5^th defendant’s statements, and broadly speaking he talks about his involvement in the National Independent Party, his gatherings with the 1^st, 2^nd and 3^rd defendants and others, the preparation and testing of smoke bombs, two visits to Ho Chung and the use of the smoke bombs to cause chaos at the Central Government Offices at the time of the voting of the political reforms in June 2015. 

38.The suggestion of replacing the references to the defendants in the 5^th defendant’s statements with a letter of the alphabet is neither appropriate nor practical.  The prosecution case against the 5^th defendant is based on his admissions about his dealings with the other defendants as alleged in the conspiracy count.  It will only confuse the jury as why the persons are referred to by an alphabetical letter when it is alleged that he and the other defendants conspired together to make explosives, in the form of smoke bombs.  The prosecution case also relies on surveillance evidence where it is alleged that they meet and gathered together on the occasions the 5^th defendant describes in his statements.  I should add that the 5^th defendant’s out of court statements is admissible evidence only against the 5^th defendant, and this will be made clear to the jury. 

39.In my view, the issue of the 5^th defendant’s admissions in his out of court statements can be fairly and properly dealt with by giving full and proper directions to the jury.

Conclusion

40.For the foregoing reasons, I refuse the application and the defendants will face trial together on the five counts as contained in the indictment. 

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

Mr Randy Shek, instructed by Bond Ng Solicitors, assigned by Director of Legal Aid, for the 1^st defendant

Mr Douglas Kwok, instructed JCC Cheung & Co., assigned by Director of Legal Aid, for the 2^nd defendant

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

Mr Thomas Iu, instructed by Jackson Ho & Co., assigned by Director of Legal Aid, for the 4^th defendant

Mr Keith Fung, instructed by Tang, Wong & Cheung, assigned by Director of Legal Aid, for the 5^th defendant