HKSAR v. Yim Yu Hang and Another

HCCC 149/2018

[2019] HKCFI 2861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 149 OF 2018

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Before: Hon Barnes J in Court

Date of Ruling: 19 November 2019

Date of Handing down Reasons for Ruling: 20 November 2019

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REASONS FOR RULING ON
NO CASE TO ANSWER
RE COUNT 2

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Application

1.At the conclusion of the prosecution case, Mr Grounds, counsel for D1, made a submission of No Case to Answer in relation to Count 2: the offence of Doing an Act Tending and Intended to Pervert the Course of Public Justice.

2.Having considered the submission by Mr Grounds on behalf of D1, and by Mr Richmond for the prosecution, I ruled that the primary evidence relied upon by the prosecution in support of this count is of a tenuous character, and that, taking the prosecution case to its highest, a jury properly directed could not properly convict on it (i.e. the second limb of R v Galbraith[1]).

3.I therefore ruled there is No Case to Answer in relation to this count.

4.I indicated at the time that I would hand down my reasons.  This I now do.

Evidence in relation to this Count

5.Evidence adduced by the prosecution in relation to this count can be set out as follows:

(1)  S65B statement by the mother of the deceased (“Bosco”) in relation to the purchase of an iPhone (“Bosco’s iPhone”);

(2)  The Bosco’s iPhone was found inside the rucksack of D2 (Benard) after he was arrested on 29 May 2017;

(3)  Prior to the arrest of D1 and later D2, there was a reference to an iPhone from the evidence of PW4 Lee Kang Yiu which occurred at the rest area of DGW in the afternoon of 28 May 2017.  According to Lee, he saw an iPhone and his impression was that it was an iPhone 7, with a golden colour case.  He remembered it was Martin (D1) who showed him that iPhone.  Lee also mentioned someone had asked him if he knew how to set up iTune or iCloud for an iPhone.  However, he could not recall who asked him that question and he could not remember if he had responded to that question either;

(4)  Bosco’s iPhone, after it was found in D2’s rucksack, was later examined by the PC3137 Fung Hon-yung (section 65B statement dated 4 July 2017).  Mr Fung found no SIM card inside the iPhone.  When the iPhone was switched on the screen displayed normally and the touch screen was working.  The iPhone was at factory reset mode.  Mr Fung was of the opinion that the iPhone was either never activated or its data had been erased; and

(5)  The WhatsApp messages between Martin and Jack Wong[2]: “Do you have a laptop”, “Can bring out”, “Ask Asher to borrow a laptop if possible”, “Need to be installed iTunes”, “Mission completed”, “Low profile now”, “Need to clean up and iPhone and sell”, “U know la…”

Submission by D1

6.Mr Grounds relied on the second limb of R v Galbraith in his submission, submitting that the primary evidence relied upon by the prosecution is of a tenuous character because of its vagueness and that, taking the prosecution case to its highest, a jury properly directed could not properly convict on it.  This Court should therefore stop the case upon a submission being made.

7.With reference to the particulars of the offence, Mr Grounds submitted that the jury will have to be properly directed on the “intent to pervert the course of public justice”, on “a series of acts” being done “which had a tendency to pervert the court of public justice” in that Martin and Jack Wong “caused the removal and deletion of the data stored” in Bosco’s iPhone.

8.Mr Grounds submitted that the WhatsApp messages are tenuous and vague.  Although there was reference to “Mission completed” and “Low profile now”, there was nothing to link those messages up with the next message “Need to clean up and iPhone and sell”.  In any event, there is no reference to a deletion of data.  What was mentioned was to install iTunes.

9.In relation to Lee’s evidence, Mr Grounds submitted that there was no link between Lee being asked if he knew how to install iTunes or iCloud, with an iPhone 7 being shown to him by Martin.  Further, Lee’s description of the iPhone shown to him has a golden colour case.  Bosco’s iPhone was black in colour.  Bosco’s iPhone was never shown to Lee when Lee was giving evidence.  Bosco’s iPhone was found inside Benard’s rucksack, not with Martin or Jack Wong.

10.Mr Grounds further submitted that the jury will no doubt be directed not to speculate.  It is a huge and speculative jump to make from the WhatsApp messages that Martin and Jack Wong intended to pervert the course of public justice, and did a series of acts which had a tendency to pervert the course of public justice in that they caused the removal and deletion of the data stored in the iPhone of Bosco.

Submission by the prosecution

11.Mr Richmond for the prosecution mainly relied on the WhatsApp messages between Martin and Jack Wong, in particular the reference to “Mission completed”, “Low profile now” and “Need to clean up and iPhone and sell” from Martin to Jack Wong.

12.Mr Richmond submitted that on the primary evidence the jury could, might or may reasonably inferred that acting on the instruction of Martin, Jack Wong did cause the data in Bosco’s iPhone to be removed.  Given the nature of the WhatsApp messages, a jury could or might or may make such an inference.

My consideration and ruling

13.On the evidence adduced by the prosecution, Bosco’s iPhone was found in the rucksack of Benard, who was not charged with the offence of Doing an Act Tending and Intended to Pervert the Course of Public Justice.  Bosco’s iPhone was found to be in factory mode.  Bearing in mind that Bosco must have been using his phone after it was purchased by his mother, it is not reasonable to infer that Bosco’s iPhone was never activated.  As Bosco went out on a night hike with his friend 05 on 27 May 2017, common sense will say that Bosco had not set his own phone to factory mode.  Someone else had clearly set Bosco’s iPhone to factory mode so that all the data were erased.  The question is, does the evidence allow a reasonable inference that it was Martin and Jack Wong who had caused the data from the iPhone to be deleted?

14.After considering the evidence carefully, I agree with Mr Grounds that the WhatsApp messages, by themselves, are vague and tenuous.  At most, one might be able to infer that there was an intention to delete the data on Bosco’s iPhone.  However, there is no evidence that Martin and Jack Wong had caused the deletion of data in Bosco’s iPhone, particularly when Bosco’s iPhone was not even found in the custody or control of either Martin or Jack Wong.  The evidence of Lee as to what had taken place at the rest area of DGW does not advance the prosecution case either.  There is no link between the iPhone shown to Lee and Bosco’s iPhone.

15.The evidence is so tenuous and vague that to allow it to be considered by the jury would amount to inviting the jury to speculate rather than to draw reasonable inferences.

16.For these reasons I rule there is no case to answer in relation to Count 2.

Mr Richmond, Martyn and Mr Wei, Mark HT, leading Mr Tso, Yat Long, Counsel-on-fiat, assigned by of Department of Justice, for HKSAR

Mr Grounds, Christopher, leading Mr Lo, Paulinus, Counsel instructed by Messrs Francis Kong & Co, Solicitors, assigned by the Director of Legal Aid, for the 1^st defendant

Mr McNamara, John Patrick, Counsel instructed by Messrs SH Chan & Co, Solicitors, assigned by the Director of Legal Aid, for the 2^nd defendant

[1] R v Galbraith (1981) 73 Cr App R 124

[2] WhatsApp Schedule (Exhibit P385) reference nos 314 to 332.