HKSAR v. Yan Sin Man

HCCC 19/2018

[2018] HKCFI 582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 19 OF 2018

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RULING

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1.The defendant was charged with trafficking in ketamine, ice, heroin and cocaine. The drugs were found in a room in Mong Kok to which the defendant had access and which she had been about to enter before she realized that people who turned out to be police officers were in there. Following her arrest, the police found inside a bag which she had with her a notebook and a mobile phone. The notebook contained various handwritten entries and the mobile phone contained a number of photographs. The prosecution’s case, based on the evidence of a police officer familiar with the drugs sub-culture in Hong Kong, was that these entries and photographs were the prices for various kinds of drugs which happened to be the four kinds of drugs found in the room, as well as details of transactions relating to them. Among the photographs in the mobile phone was a photograph of a receipt in the defendant’s name for the rent for the room. No objection was taken at the defendant’s trial to the admissibility of the entries in the notebook or the photographs in the mobile phone.

2.The defendant’s case at trial was that on the day in question she had been instructed by her boyfriend to collect a bag from a nearby address and to take it to the room in which she was eventually to be arrested.  That was the bag in which the notebook and the mobile phone were found.  She accepted that the mobile phone had been registered in her name, but she claimed that it had been used by her boyfriend, and that she had only had it with her that day because he had left it somewhere.  She claimed to have known nothing about the drugs found in the room or the notebook or the photographs in the mobile phone.  All she knew, she said, was that her boyfriend had used the room to consume drugs in.  As for the receipt, she claimed that she had given it to her boyfriend, and had had no idea why the receipt had been in her name or why there had been a photograph of it in the mobile phone.

3.At the conclusion of the trial, the defendant was convicted, but her conviction was quashed on appeal, and a new trial ordered.  That trial is due to start today.  The defence has applied for a ruling that the entries in the notebook and the photographs in the mobile phone should not be admitted in evidence on the basis that they are inadmissible hearsay.  The prosecution contends that they are not.

4.It is necessary to identify the basis on which the Court of Appeal quashed the defendant’s conviction.  The ground of appeal which succeeded related to the entries in the notebook and the photographs in the mobile phone. The leading judgment of the Court of Appeal was the joint judgment of Lunn VP and Macrae JA.  They noted at [27] that the entries in the notebook and the photographs in the mobile phone were “of a kind that a person trafficking in dangerous drugs would keep”.  In that respect, the entries and the photographs were similar to the betting slips considered by the Court of Appeal in HKSAR v Or Suen Hong [2001] 2 HKLRD 669.  The betting slips had been found in the defendant’s flat.  At [57] and [58], the Court noted that the betting slips had been held in Or Suen Hong to be admissible for proving “that the flat was the venue for the conduct of a business of the kind run by bookmakers”, though not “as proof that the bets purportedly recorded were in fact placed and placed with the applicant”.

5.At [60] and [61] the Court referred to the passages in the trial judge’s summing-up in which she had said that it was not disputed that the entries in the notebook and the photographs in the mobile phone were records of transactions relating to dangerous drugs.  It was what the Court then said which is important.  At [62] it said:

“ However, the key controversial issue was not the nature of the records, but whether they were admissible against the applicant as to the truth of the implied assertions contained within the records. Was she the maker of the records? If so, they were admissible against her as to the truth. If not, they were not admissible for that purpose.”

6.On the question whether the defendant had been the “maker” of the records, the Court referred at [65] to the trial judge’s direction to the jury that it had been open to the jury to infer that the defendant had made the entries in the notebook as she had been in possession of it in a flat in which had been found the same four kinds of drugs as those referred to in the entries.  Having considered the evidence in the case, including the fact that there had been no expert evidence that the handwritten entries in the notebook matched the handwriting of the defendant, the Court concluded at [74] that there had been insufficient evidence upon which the jury could have inferred that the entries in the notebook had been made by her.  Its view was that the same applied to the photographs in the mobile phone.  Accordingly, the entries in the notebook and the photographs in the mobile phone “could not be used against the applicant in proof of the truth of the statements made in the records, in particular that the evidence was not capable of being proof against the applicant of actual drug trafficking in those drugs”.  The Court went on to say:  

“ In those circumstances, consideration ought to have been given as to whether or not it was appropriate to invite the jury, if they were satisfied that the applicant knew that she was in possession of those records, to have regard to the fact that she was in possession of records of the kind and nature which would be kept by someone trafficking in dangerous drugs. Obviously, given the way in which matters proceeded at trial, consideration of those matters did not occur.”

7.So if the entries in the notebook and the photographs in the mobile were to be capable of proving anything against the defendant, she had to have known that “she was in possession of those records”.  I do not think that the Court meant by that that all she had to have known was that the notebook and the mobile phone were in her bag.  What the Court meant, I am sure, is that she had to have known of the entries in the notebook and the photographs in the mobile phone.  That is apparent from the separate judgment of McWalters JA at [85]:

“ For the contents of the notebook to have any probative value the jury had to be able to infer not just that the applicant had possession of the notebook but was aware of its contents.”

8.If there was insufficient evidence from which the jury in the previous trial could have inferred that the defendant had been the maker of the entries and the photographs, it is highly likely that there will be insufficient evidence from which the jury in the new trial could infer that the defendant knew of the entries and the photographs.  But that is not the end of the matter.  Even if there is sufficient evidence from which the jury could infer that the defendant knew of the entries and the photographs, what is that capable of proving?  The Court did not say, but in the light of what the Court said in [62], it is not capable of proving anything which depends on “the implied assertions” in the entries and the photographs being true.  To hold otherwise would have offended the rule against hearsay, and although the Court did not say so in so many words, it must have been following R v Kearley [1992] 2 AC 228.

9.So what are the assertions implicit in the entries and the photographs upon which the prosecution rely?  The prosecution has disavowed any reliance on an assertion that the defendant had been trafficking in either the drugs found in the room or the drugs to which the transactions in the entries and the photographs related.  What the prosecution contends is that implicit in the entries and the photographs—contained in a notebook and a mobile phone in her possession at the time—is an assertion that the defendant had been engaged in drug trafficking at the time of her arrest, and from that the jury will be asked to infer that the defendant had been trafficking in the drugs found in the room.

10.It may well be that the assertion that the defendant had been engaged in drug trafficking at the time of her arrest is implicit from the fact that she had in her possession at that time a notebook and a mobile phone containing the relevant entries and photographs—on the assumption, of course, that the jury is satisfied that the defendant knew of the entries and the photographs.  But the difficulty for the prosecution is that the truth of that assertion is dependent on the transactions referred to in the entries in the notebook and the photographs in the mobile phone having taken place—in just the same way as the betting slips in Or Suen Hong could only have been evidence that the defendant had engaged in bookmaking if the bets purportedly recorded as having taken place had taken place.  They had to have been real transactions if they were to be evidence of anything other than that the room in which the drugs were found had been the venue at which drug trafficking had taken place, or as in Or Suen Hong that the room in which the betting slips were found had been the venue at which bookmaking had taken place.  Evidence that these had been real transactions could not have been given without the prosecution calling the “maker” of the entries or the photographs, and without such evidence the entries and the photographs are inadmissible for the purpose for which the prosecution proposes to rely on them on the basis that they contravene the rule against hearsay.  It follows that the entries in the notebook and the photographs in the mobile phone may not be admitted in the course of the trial.

11.I have not overlooked what McWalters JA said on this topic at [91] in his separate judgment.  He said:

“ If the contents of the notebook were found by the jury to be a record of drug transactions they were entitled to use that fact against the applicant without breaching the hearsay rule. Used for this limited purpose the jury would not be relying on any particular entry to prove the truth of what it recorded. They would instead be relying on the evidence of the police expert that where an entry recorded otherwise meaningless words and figures it should be understood as referring to a drug transaction. This approach, in the words of Tang VP, as he then was, in HKSAR v Yu Wai Man [2009] 4 HKLRD 558 at [22] ‘does not involve the making of any assumption concerning the truth or otherwise that the document records’.”

It was entirely appropriate for expert evidence to be given about the meaning of certain words and phrases in the notebook, but that evidence merely explained what the entries meant.  What is important is what the entries were to be used for.  It should be noted that McWalters JA did not identify what the “limited purpose” for using the entries was to be for.   It is one thing for the entries to be used for proving that the room in which the drugs were found had been a place at which drug trafficking took place.  It is quite another for the entries to be used for proving that the defendant had been engaged in drug trafficking at the time of her arrest.

12.In the interests of completeness, I should add two things.  First, the Court of Appeal referred to the “maker” of the photographs—as if the photographs had been taken by someone using the mobile phone.  That is true of the photograph of the receipt, but the prosecution’s case in fact is that all the other photographs were sent via WhatsApp from the mobile phone to someone who the prosecution is not able to identify.  However, that does not help on how they got onto the mobile phone in the first place—whether they were sent to the mobile phone by someone or whether they were taken on the mobile phone.  If they had been sent to the mobile phone rather than taken on it, that might have been another reason for holding that the photographs were hearsay.  Secondly, everything I have said so far about the photographs in the mobile phone does not include the photograph of the receipt for the rent. However, Mr Andrew Raffell for the prosecution has acknowledged that the prosecution cannot rely on that photograph.  That is because the Court of Appeal held at [76] that the trial judge should have “directed the jury to disregard entirely the evidence of the photograph of the receipt” on the basis that it “had no probative value”.

[Following this ruling, the defendant was arraigned. She pleaded not guilty, and the prosecution offered no evidence.]

Mr Andrew Raffell, counsel on fiat, for the prosecution

Mr Wong Hay Yiu, instructed by Eric Cheung & Lau, assigned by Director of Legal Aid, for the defendant