Case Document

100%Judiciary

(Ruling 14)

HCCC 41/2016

[2018] HKCFI 318

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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	HKSAR
	v
	CHAN Yiu-shing	1st Defendant
	CHENG Wai-shing	2nd Defendant
	PENNELLI Rizzy	3rd Defendant
	WU Kai-fu	4th Defendant
	MAN Ting-lock	5th Defendant

_______________

Before: Hon Zervos J in Court

Dates of Hearing: 15 to 17, 22 and 23 February and 18 August 2017

Date of Ruling: 13 September 2017

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RULING ON THE ADMISSIBILITY OF EXHIBITS

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Introduction

1.This case was originally fixed for trial commencing on 6 February 2017 with 18 days set aside. Prior to that date, there had been two pre-trial reviews. One was on 9 December 2016 and the other was on 13 January 2017. On those occasions, the issues raised by the parties mainly concerned amending the indictment, the defence position in relation to obtaining expert evidence, and the admissibility of admissions made under caution by two of the defendants. Since the committal of the defendants to stand trial in the Court of First Instance, there have been 12 additional bundles served and filed by the prosecution.

Additional evidence

2.The progressive serving of additional evidence by the prosecution on the defence was as follows. On the eve of the pre-trial review on 12 January 2017, the prosecution filed and served the 4^th additional bundle consisting of two volumes, containing 16 additional statements and 31 additional documentary exhibits. The additional evidence was numbered AE2125 to AE3082 and comprised 957 pages.

3.On 19 January 2017, the prosecution filed and served the 5^th additional bundle consisting of one volume containing 7 additional statements, 5 additional documentary exhibits and one photo album. The additional evidence was numbered AE3083 to AE3527 and comprised 244 pages.

4.On 2 February 2017, the prosecution filed and served the 6^th additional bundle consisting of 14 additional statements. The additional evidence was numbered AE3528 to AE3566 and comprised 38 pages.

5.On 6 February 2017, the prosecution filed and served the 7^th and 8^th additional bundles. The 7^th additional bundle consisted of 16 additional witness statements. The additional evidence was numbered AE3567 to AE3622 and comprised 55 pages. The 8^th additional bundle consisted of one additional statement. The additional evidence was numbered AE3623 to AE3624 and comprised 2 pages.

6.On 7 February 2017, the prosecution filed and served the 9^th additional bundle consisting of 4 additional statements and 3 additional documentary exhibits. The additional bundles were numbered AE3625 to AE3677 and comprised 52 pages.

7.On 16 February 2017, the prosecution filed and served the 10^th additional bundle consisting of 4 additional statements. The additional evidence was numbered AE3678 to AE3689 and comprised 11 pages.

8.On 3 August 2017, the prosecution filed and served the 11^th additional bundle consisting of 3 additional statements, one of which was an additional expert report from the Government Forensic Scientist. The additional evidence was numbered AE3690 to 3716 and comprised 26 pages.

9.On 24 August 2017, the prosecution filed and served the 12^th additional bundle consisting of 3 additional statements, one of which again was an additional expert report from the Government Forensic Scientist. The additional evidence was numbered AE3717 to 3728 and comprised 11 pages.

10.As is apparent, from the eve of the pre-trial review on 12 January 2017 to now, a large quantity of additional evidence both in the form of witness statements and documentary exhibits have been filed and served by the prosecution and comprised about 1601 additional pages.

Electronic materials

11.In addition, the prosecution served a Trial Bundle consisting of materials that the prosecution would rely on against the defendants, namely materials downloaded from computers or mobile phones of the defendants concerned.

12.On 14 February 2017, two volumes were submitted to the Court, TB1 Volume 1 and Volume 2 together with a list of materials TB1(A).

13.On 17 February 2017, the materials were reduced to one volume which was submitted to the Court, TB2 Volume 1 together with a list of materials TB2(A).

14.The initial two volumes consisted of copies of images downloaded from the 1^st defendant’s computer and tablet (Exhibits P1000(1)-(9) and P1001); the 2^nd defendant’s mobile telephone (Exhibits P1002(1) and (2)); and the 3^rd defendant’s computer and mobile telephone (Exhibits P1003(1) and (2) and P1004(1)-(4)).

15.I should mention that in the course of oral submissions in relation to the 2 volumes of trial bundles a number of items have been removed by the prosecution.

Prejudicial materials

16.The trial bundles that were first produced, in my view, contained materials that were clearly irrelevant and of no probative value, some of which were highly prejudicial. Exhibit P1000(1) is an example on point. This consisted of 2 photographs of the 1^st defendant. The 1^st photograph depicted him in military dress holding a purported firearm. The 2^nd photograph depicted him posing in gangster style attire holding a purported machine gun. The prosecution stated that it wished to rely on the images that were downloaded from the computer to prove that the computer belonged to the 1^st defendant.

17.As Mr Randy Shek, for the 1^st defendant, correctly pointed out there were other images of the 1^st defendant on the computer that were neutral, which could have been used more appropriately for the purpose claimed. The prosecution then edited the photographs by removing the image of the purported firearm in each photograph, but clearly from an objective viewpoint remained unflattering and prejudicial to the 1^st defendant.

18.I had no hesitation to exclude these prejudicial and irrelevant images. I am informed that the photograph of the 1^st defendant in military dress concerns his participation in war games and the purported firearms are imitations. The original exhibits and the substituted exhibits are Annexures A and B respectively.

Particulars of the prosecution case

19.There was also a further difficulty when assessing these materials, due to the lack of an opening or case summary. This was notwithstanding that Count 1 was a conspiracy count. I directed that the prosecution produce a case summary in relation to Count 1. As a result, a summary of evidence supporting a conspiracy count was produced by the prosecution dated 15 February 2017. This in my view was essential to assist the defence, not only to inform them of the case and evidence against the respective defendants but also as a means to assess the relevance of materials that the prosecution wished to rely upon at the trial against the respective defendant.

20.I also directed on 28 February 2017 (Ruling 12), that the prosecution file and serve further and better particulars in relation to all counts on the indictment. This was as a result of the confusing state of the prosecution case and evidence. This was produced on 1 August 2017. In addition to the oral submissions, I have been guided by the case summary and the further and better particulars of the counts in assessing the relevance of the materials that have been the subject of objection from the defence.

Objections to the electronic materials

21.Mr Randy Shek, for the 1^st defendant, submitted written grounds of objection and submissions dated 15 February 2017. He objects to the prosecution producing digital files found in a BenQ laptop computer (Exhibit P27) and a Samsung mobile tablet (Exhibit P36). The prosecution claim that the computer and the tablet belonged to the 1^st defendant. They were seized from the 1^st defendant’s residence. The digital files the prosecution wish to rely on from the computer are Exhibits P1000(1)-(9) and from the tablet is Exhibit P1001. After Mr Shek filed his written grounds of objection the prosecution removed a number of items from the computer (P1000(1), (2), (5) and (6)) and all items from the tablet (P1001).

22.Mr Shek maintained his objection to the remaining materials on the grounds that the files are not relevant to the issues that the prosecution seek to prove against the defendant on the conspiracy count (Count 1) and on the possession count (Count 4); and that the prejudicial effect of the files far outweighs their probative value and therefore should be excluded.

23.Mr Shek argues that according to the prosecution’s summary of evidence in relation to Count 1 the allegation is that the defendants conspired to make smoke bombs. He notes that the prosecution are relying on a vast quantity of substances seized from the 1^st, 2^nd and 3^rd defendants that have been opined by the prosecution experts to be explosive substances. He also notes that in relation to the possession count against the 1^st defendant, the prosecution must prove that the substances allegedly found inside and outside his residence are explosive substances. He goes on to submit that as for the 1^st defendant’s knowledge, what the prosecution have to prove is that he knew he had those substances in his possession rather than knowing that these substances he is alleged to have possessed were explosive substances.

24.In light of the foregoing, Mr Shek sets out his objection against each of the exhibits. He notes in general that many of the digital files were found on 3 locations on the computer hard drive which had been saved at different times. The digital files bearing the earliest date were located in the folder “H/gun/” which was created on 2 July 2014. He points out that there are altogether 544 items in this folder, the vast majority of which have nothing to do with explosives, and the files inside the folder are dated between 22 April 2006 and 23 June 2010. He notes that the digital files in this folder were saved on the hard drive almost 5 years before the alleged conspiracy.

25.Mr Shek explains that the other 2 locations where many of the digital files were found are inside folders labelled “Backup Set” and “Backup Files” dated 28 June 2010 and 17 December 2010 respectively. He notes that the contents of the folders reveal that nothing has been added since December 2010 and before they were moved to the “H/gun” folder in July 2014. He submits that there is no evidence suggesting that these documents were accessed or otherwise dealt with by anyone since the time the “H/gun” folder was created. He points out that in the prosecution’s summary of evidence on Count 1 there is no reference to the documents found on the computer.

26.Mr Shek also submits that even if the digital files are relevant and admissible, the contents of them are far more prejudicial than probative, and should be excluded.

27.Mr Douglas Kwok, for the 2^nd defendant, did not raise any objections in relation to the materials the prosecution seek to rely upon as allegedly being images downloaded from the 2^nd defendant’s mobile phone (Exhibit P1002(1) and (2)).

28.Mr John Haynes, for the 3^rd defendant, submitted written grounds of objection dated 14 February 2017. He initially objected to the digital files or images that the prosecution wish to rely upon on the general ground of relevance and the provenance of the materials. On the issue of provenance, he complains that the prosecution are relying on the fact that the digital files or images have been taken from a computer seized from the 3^rd defendant’s home (Exhibit P303) and a mobile phone seized from the 3^rd defendant (Exhibit P180). He further complains that the prosecution are also relying on the contents of some of the materials to evidence authorship by or connection with the 3^rd defendant.

29.Following a request from the Court for particulars of objection to the individual materials, Mr Haynes submitted handwritten brief commentary on the materials which was descriptive and general. See handwritten comments of the materials submitted to the Court on 16 February 2017.

30.Following a further request from the Court for specific particulars of objection to the materials, Mr Haynes submitted written objections on the revised list of material that the prosecution wished to rely on at the trial of the 3^rd defendant. See written grounds of objection dated 22 February 2017.

31.Mr Haynes submits that there are three general grounds of objection to the admissibility of the materials. First, the challenged materials are not relevant to the charges that the 3^rd defendant faces. Secondly, the prejudicial effect of the challenged materials outweighs their probative value. Thirdly, certain chemicals are mentioned in the challenged materials which are not the chemicals or substances particularised in the charges.

32.Mr Haynes lists his specific objections to the individual materials in paragraph 4 of his written grounds of objection.

Ruling on the electronic materials

33.During the course of submissions when dealing with the objections to various exhibits, a number of proposed exhibits had been removed by the prosecution. I must say that the exercise of examining the relevance of these materials has been extremely difficult because of the confusing nature and changing position of the prosecution case, and the recent flow of additional evidence that the prosecution wish to rely on at trial. In respect of the following remaining exhibits, I have set out my remarks concerning the nature and relevance of the exhibit in question and whether to allow or disallow its admission into evidence.

Exhibit No. Description Remarks

P1000(3)
P1000(3)(T)
(T stands for translation) Printouts from 5 folders retrieved from P27 (the computer allegedly belonging to D1).
This is a heavily redacted document that contains a few sentences in relation to a chemical reaction. It is allowed but subject to further consideration of the entire document.

P1000(4)
P1000(4)(T) Personal particulars of D1. It is allowed.

P1000(7)
P1000(7)(T) Sets out the name and address of a chemicals company and a scientific supplies company. It is disallowed as it is not relevant to the charges.

P1000(8)
P1000(8)(T) Photographs of chemical substances and the ignition of them. They are allowed.

P1000(9)
P1000(9)(T) A post listing chemical substances and explosives. This is allowed.

P1002(1)-(2)
P1002(1)(T) Two photographs depicting exhibit P103 (allegedly D2’s Samsung phone) displaying two photos stored in it. Photograph of the screen of a phone listing ingredients for an experiment. It is allowed. Photograph of the screen of a phone depicting a substance that is emitting smoke. It is allowed.

P1003(1)
P1003(1)(T) Printouts of notes retrieved from exhibit P180 (allegedly D3’s mobile phone). Discussion about making smoke bombs and chemical ingredients and reactions. AE2672-2675 and 2680-2682 are allowed subject to further submissions on the need for redactions. AE2693-2698 appears to concern a discussion of a meeting purportedly held or recorded on 30 May about a demonstration and tactics to be employed. It is disallowed at this stage as it appears not to be relevant to the charges and prejudicial. There may be parts of it that could be relevant but this will depend on how the prosecution presents its case and how it unfolds.

P1003(2)
P1003(2)(T) Printouts of a set of images retrieved from exhibit P180. Images of handwritten notes which appear to refer to Government Offices and the Legislative Council with reference to a demonstration. It is disallowed as it is not relevant to the charges and prejudicial.

P1004(1)
P1004(1)(T) Printouts of 2 folders retrieved from exhibit P303 (allegedly D3’s computer). Discussion about the conduct of meetings and particulars of a group. It is disallowed as it is not relevant to the charges.

P1004(2)
P1004(2)(T) AE2846 and 2847 are allowed but subject to certain redactions. AE2848-2851 are disallowed subject to further submissions as to their relevance to AE2853-2873. AE2853-2873 are allowed subject to further submissions on the need for redactions.

34.I should point out that a significant portion of the objected material concerns discussions or meetings of a group or individuals in relation to demonstrations and political activities. There are at times comments about tactics and actions to be employed at public events or directed to identified targets. In light of the charges that have been laid against the defendants and the prosecution case summary, it is unclear as to the relevance of this material. It is on that basis that I have disallowed the material that falls into this category.