HKSAR v. Wong Wing Man, Mandy Alias Wang Xuexin and Another

HCCC 76/2017

[2018] HKCFI 1416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 76 OF 2017

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RULING ON ADMISSIBILITY OF STATEMENTS
BY A THIRD PARTY

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1.At the close of the hearing on Friday, an objection was raised by Mr Leung Chun Keung, for the 1^st defendant, against a line of questioning that he was informed by Mr James McGowan, for the 2^nd defendant, would be pursued by him when cross-examining DPC 6525, Lui Ka Chun (PW9).

2.Mr McGowan wants to cross-examine the police officer in relation to what he was told by the twin daughters of the 1^st and 2^nd defendants, Cheng Sze Wing and Wong Chak Kei.  The officer took a statement from Cheng on 13 August 2015 in which she gives an account similar to what the 2^nd defendant said initially to the police that Suki was born prematurely and had serious developmental problems from then on.  The officer recorded a statement from Wong after caution in which she said that her mother told them to tell lies as she was afraid of being prosecuted.  She went on to make an admission that the younger sister, Suki, was beaten but Mr McGowan does not wish to elicit this latter part of her statement. 

3.I am informed that the twin daughters will not be called to give evidence.

4.The question arises whether Mr McGowan can elicit from the police officer certain statements told to him by Cheng and Wong.  On its face, this is hearsay evidence.  In HKSAR v Yau Chung Man,CACC 411/2015, 23 August 2017, in giving the reasons for judgment of the Court, I stated:

“30. In Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, McHugh NPJ in his judgment, with whom the other judges agreed, provided a working definition of the hearsay rule in the following terms: “an oral or written assertion, express or implied, other than one made by a person in giving oral evidence in court proceedings is inadmissible as evidence of any fact or opinion so asserted.”

31. McHugh NPJ went on to explain that in establishing whether the hearsay rule had been breached, it was necessary to determine the purpose for which evidence of an out-of-court statement was tendered.  He emphasised that an out-of-court statement, made in the absence of a party, was not necessarily inadmissible, as long as its contents were not relied on to prove a fact recited or asserted.  Such statement would be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue.  He noted that the hearsay rule does not forbid the proof of what somebody said out of court.  What is forbidden is the proof of a fact by telling what somebody said about the fact out of court.

32. Whether evidence in any particular instance is admissible depends on what fact it tends to prove.  In general terms, if it tends to prove what somebody said out of court, it would be admissible. If, on the other hand, it tends to prove the fact of what someone said out of court (or the truth of it), it would inadmissible.  Thus, evidence as to what is said by a person out of court will be admissible to prove the person’s state of mind where it is a relevant issue.”

5.The critical issue therefore turns on the question of what is the purpose of eliciting this evidence.  Mr McGowan submits that the statements of Cheng show that a similar account was given about Suki’s condition that the 2^nd defendant had given initially to the police which he subsequently admitted was a lie, and that the family were generally adhering to this particular account.  He submits that the statements of Wong show that the family were told to lie by the mother. 

6.It needs to be borne in mind that this evidence seeks to address the allegations in Count 3 where both the 1^st and 2^nd defendant are jointly accused of perverting the course of public justice.  The 2^nd defendant’s defence is that he was forced by the 1^st defendant to make false statements about Suki’s condition and that she also instructed the twin daughters to do the same.

7.Mr McGowan submits that the evidence is admissible as it does not offend the hearsay rule and represents acts and declarations in furtherance of the joint enterprise as alleged under Count 3.

8.Of the statements of Cheng, Mr McGowan submits that the purpose of this evidence is to show that it was said, not to rely on the truth of what was said.  Mr Leung initially objected to Mr McGowan eliciting this evidence from the police officer but in the course of submissions resiled from this position, acknowledging that the 1^st defendant’s defence was that the statements made by the family about Suki’s condition were made at the instigation of the 2^nd defendant.  He accepted that there was no prejudicial effect on the 1^st defendant’s case by this evidence. 

9.Of the statements of Wong, Mr McGowan acknowledges that the purpose of this evidence is to establish the truth of what was said, that is, the mother told them to lie.  At the conclusion of submissions, he conceded that he would not seek to elicit this evidence from the police officer.

10.It is for the foregoing reasons that I rule that the statements of Cheng can be elicited from the police officer but not the statements of Wong.

Mr Duncan Percy, counsel on fiat, for HKSAR

Mr Leung Chun Keung, instructed by Tang & Lee, assigned by Director of Legal Aid, for the 1^st defendant

Mr James McGowan, instructed by Yung, Yu, Yuen, assigned by Director of Legal Aid, for the 2^nd defendant