HKSAR v. Cheung Tsz Hong

HCCC 379/2017

[2018] HKCFI 991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 379 OF 2017

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Before:  Hon Barnes J in Court

Date of Hearing and Ruling:  4 May 2018

Date of handing down Reasons:  8 May 2018

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REASONS FOR RULING ON

APPLICATION FOR SEVERANCE

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The application

1.The defendant faces a total of 8 charges involving two complainants, “X” and “Y”.  The defendant made an application for severance of counts 1 & 2 relating to “X” from counts 3 to 8 relating to “Y”, on the grounds that the prejudice to the defendant “could hardly be cured by directions given the nature of the two incidents and the defendant’s line of defence in each incident”, and that the two incidents do not involve common witnesses.

2.After considering the submissions by both Mr Geoffrey Chang, counsel for the defendant, and Mr Michael Arthur, counsel on fiat for the prosecution, I refused the application for severance.  I indicated at the time that I will give my full reasons in writing, which I now do.

The stance of the defence

3.In his written submission, Mr Chang relied on the general approach to severance, and severance in sexual cases, as stated in Archbold Hong Kong 2018, with particular reference to two cases: R v Sims [1946] KB 531; and DPP v Boardman [1975] AC 421.

4.Mr Chang particularly relied on the following passages:

(1)  In Sims, the speech of Lord Goddard CJ (at page 536):

“.... in such a case as the present, however, it is asking too much to expect any jury when considering one charge to disregard the evidence on the others, and if such evidence is inadmissible, the prejudice created by it would be improper and would be too great for any direction to overcome.”

(2)  In Boardman, Lord Cross said (at page 459):

“.... and if.... the evidence is inadmissible and the accused is being charged in the same indictment with offences against the other men the charges relating to different persons ought to be tried separately. If they are tried together the judge will, of course, have to tell the jury that in considering whether the accused is guilty of the offence alleged against him by A they must put out of mind the fact – which they know – that B and C are making similar allegations against him. But, as the Court of Criminal Appeal said in Rex v Sims [1946] K B 531, 536, it is asking too much of any jury to tell them to perform mental gymnastics of that sort. If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons. It is said.... that to order separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges together.”

5.Mr Chang submitted that the two incidents are totally unrelated.  There would not be any duplication of evidence.  No advantage would be gained by a joint trial while the risk of prejudice to the defendant is too great to be capable of cure by even the most careful directions from the court, adding that there would not be any significant disadvantage to all related parties if separate trials are ordered.

6.In his oral submission, Mr Chang stressed (with reference to the case of DPP v P (1991) 2 AC 447 relied on by the prosecution in opposition to this application), that the probative force of the allegation is not so powerful as to outweigh the prejudicial effect.

The prosecution’s response

7.Mr Arthur submitted that there is a strong relationship both in time and circumstances between the alleged offences.  The evidence of the defendant’s conduct also forms a pattern which when taking all the circumstances of the case together is sufficient to justify its admission to provide support for the evidence on all 8 counts.  Mr Arthur referred to the features common to both cases such as the time, place, and the manner with which the defendant committed the rapes and submitted that the Court might take the view that there is a very significant degree of similarity between the two incidents.

8.While the complainants are not the same, Mr Arthur submitted that the police officers who arrested the defendant and interviewed the defendant for both incidents are the same.

9.Relying on authorities such as DPP v P; HKSAR v Keung Chi‑shing [1998] 4 HKC 748; HKSAR v Tam Chi‑shing, CACC 443/2000, and R v Kuman (Kandavanam) [2005] EWCA Crim 3549, Mr Arthur submitted that the probative force of the allegation that the defendant committed the offences, the subject of counts 1 & 2, is sufficiently great to make it just to admit that evidence, notwithstanding it is prejudicial to the defendant in showing that he is guilty of those offences being the subject of counts 3 to 8.

My consideration

10.Having considered the prosecution case: the evidence to be given by “X” and “Y”, in particular the way the defendant used social media such as Facebook to entice “X” and “Y” to go to his home, tied them up with plastic straps, threatened them with a sharp weapon (a cutter and a fruit knife respectively), then had sexual intercourse with “X” and “Y” without their consent (and without the use of any condom), and that the two incidents took place within 4 days of each other (10 Dec and 14 Dec 2016); and having considered the submissions and the authorities cited, in particular the case of DPP v P and Kumar, I am in agreement with Mr Arthur.

11.In DPP v P, Lord MacKay LC said (at page 462D‑F):

“when a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. ....”

12.In Kumar, the English CA said:

“The mere fact that both complainants alleged that this one appellant had had sexual intercourse with them without their consent is not enough. It is true that since DPP v P it is not necessary in every case to identify striking similarities between the evidence of one offence before the evidence of one offence may be regarded as probative of another. But nonetheless there must still be some identifiable common feature or features which amount to a significant connection going beyond mere coincidence before the evidence of one complainant may be regarded as supporting the truth of another. The fact that two or more complaints have been made as to similar offences is not enough (see R v Musquera [1999] Crim LR 857). The courts have eschewed any prescriptive rulings as to how much more is required. That will depend upon the facts of a particular case. Flexibility is important. But it is equally important to distinguish between those cases where the events the complainant describe as similar and those cases where the complainants are similar. In the latter type of case it will be of particular importance to ensure that the prosecution case amounts to more than mere reliance on a number of accusations which have been made…”

13.In my view, the evidence of “X” (on paper) is so strikingly similar, so related to the evidence of “Y” (on paper) that the evidence of “X” provides strong enough support for the evidence of “Y” to make it just to admit the evidence notwithstanding the prejudicial effect of admitting the evidence.  Even if I were wrong to say that there are striking similarities between what happened to “X” and “Y”, what I have described as to time, place and the modus operandi of the defendant regarding “X” and “Y” are features which amount to a significant connection going beyond mere coincidence so that the evidence of one complainant may be regarded as supporting the truth of the other.

Ruling

14.For these reasons, I refused the application by the defendant for severance of counts 1 & 2 from counts 3 to 8.

15.In view of the imminent trial, I ordered that any publication of any report of the proceedings at the hearing of this Application, which also applies to this written Reasons, be prohibited until further order of this Court.

Mr Michael J B Arthur, counsel‑on‑fiat instructed by Director of Public Prosecutions for HKSAR

Mr Geoffrey P Chang, counsel instructed by Messrs Cheung & Liu, Solicitors, assigned by Director of Legal Aid for the defendant