HKSAR v. Yim Yu Hang and Others

HCCC 149/2018

[2019] HKCFI 890

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: 3 April 2019

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RULING ON ADMISSIBILITY OF

WHATSAPP MESSAGES

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1.I rule in favour of the prosecution that certain WhatsApp messages extracted from Lee Kang Yiu’s iPhone (and viewed together with corresponding messages extracted from D3’s phone, which I will not list out here), and certain messages extracted only from D3’s mobile phone, are admissible against D1 and D2. As indicated earlier, I will give my reasons in writing later.

2.I will use the tables prepared by the prosecution (as shown in their written submission dated 4 March 2019) to indicate whether any particular messages are admissible against each of the three defendants, and if so, on what basis.

A.AGAINST D1

Messages extracted from Lee’s iPhone

(1)  Messages nos. 1369-1373, 1385, [1388], 1386, 1392-1394, 1396, 1397, 1399, 1400, 1406-1410

(a)  Messages nos. 1369-1373 - not admissible as they are too vague as to being relevant.

(b)  Messages nos. 1385, 1386, 1388, 1392, 1393, 1394, 1396, 1397, 1399, 1400, 1406-1410 – admissible as declaration against interest.

(2)  Messages nos. 1761-1763, 1793

•    All messages admissible for non-hearsay use.

(3)  Messages nos. 1795, 1800, 1801, 1806-1808

•   All messages admissible for non-hearsay use.

(4)  Messages nos. 3709-3711, 3714

•   All messages admissible for non-hearsay use.

(5)  Message no. 3715

•   Admissible as declaration against interest.

(6)  Messages nos. 3742-3744

•   All admissible for non-hearsay use.

(7)  Messages nos. 3754, 3755, 3757

•   Message no. 3754 shows a screen shot with Bosco’s audio.  Note that immediately after message 3755 (Guys plz prepare for tomorrow) there is a message from Boss “@[sword], @Benard Chow and @Mou Chai” before message 3757 (I take him down when I isolate him with 06).  All are admissible as declaration against interest.

(8)  Messages nos. 3789-3791

•   All admissible as declaration against interest.

(9)  Messages nos. 3951, 3952, 3956, 3957, 3959, 3960

•   All admissible as declaration against interest.

(10)  Messages nos. 4006-4008, 4010-4014

•   All admissible as declaration against interest.

(11)  Messages nos. 4015-4016

•   All admissible for non-hearsay use.

(12)   Messages nos. 4148, 4156

•   All admissible for non-hearsay use.

(13)   Messages nos. 4185, 4186, 4189, 4191, 4192

•   All admissible for non-hearsay use.

(14)   Messages nos. 4195-4197

•   All admissible as declaration against interest.

(15)   Messages nos. 4198-4201

•   All admissible for non-hearsay use.

(16)   Message no. 4205

•   Message no. 4205 (audio message: Hey Benard, if on the hill you see anyone hiking, jogging and such, you report over here), is admissible as declaration against interest.

(17)   Message no. 4206

•   Admissible for non-hearsay use.

(18)   Message no. 4210

•   Admissible for non-hearsay use.

(19)   Message no. 4215

•   This audio message: (Meow, wait a bit longer, we are still packing stuff, cleaning stuff), admissible as declaration against interest.

(20)   Message no. 4222

•   The prosecution did not refer to this message, which might be an oversight (This is an audio message from D1: you tell him we are still doing testing, there is a problem with the equipment). This is admissible as declaration against interest.

Messages extracted from D3’s phone only

(1)  Messages nos. 327, 328

•   All admissible as declaration against interest.

(2)  Messages nos. 314, 315, 321, 322, 327, 328, 330, 332, 333, 335

•   All admissible as declaration against interest.

(3)  Messages nos. 652, 653

•   All admissible as declaration against interest.

(4)  Messages nos. 1303, 1304

•   All admissible as declaration against interest.

(5)  Messages nos. 3666, 3668, 3697, 3712, 3714

•   All admissible as declaration against interest.

B.AGAINST D2

Messages extracted from Lee’s iphone

3.As against D2, all those messages listed by the prosecution in the written submission dated 4 March 2019 under headings (1) (2) (3) (4) and (5) are not admissible against D2 as D2’s position was no different from other members of the same WhatsApp chat Group who are not charged with any offence. However, D2’s position changed when he indicated his participation to the joint enterprise at message no. 3759.

(6)  Messages no. 3754, 3755, 3757, [3759]

•   D2’s message at 3759 is admissible against him as declaration against interest, when read together with the other messages under this heading, in particular, bearing in mind the reference to @Benard and @Mou Chai between message nos. 3755 and 3757.

(7)  Messages nos. 3789-3791

•   All admissible under co-conspirator’s rule.

(8)  Messages nos. 3951, 3952, 3956, 3957, 3959, 3960

•   All admissible under co-conspirator’s rule.

(9)  Messages nos. 4006-4008, 4010-4014

•   All admissible under co-conspirator’s rule.

(10)  Messages nos. 4015-4016

•   All admissible under co-conspirator’s rule.

(11)  Messages nos. 4148, 4156

•   All admissible under co-conspirator’s rule.

(12)  Messages nos. 4185, 4186, 4189, 4191, 4192

•   All admissible under co-conspirator’s rule.

(13)  Messages nos. 4195 – 4197

•   All admissible under co-conspirator’s rule.

(14)  Messages nos. 4198-4201, 4203

•   All admissible under the co-conspirator’s rule.  Further, note that at 4203 D2, in response to D1’s description of what was happening to Bosco, at 23:06:16, said “KT now” which the jury can infer to mean D2 was at Kwun Tong at 23:06:16, which is an admission by D2 and another piece of independent evidence as to D2’s participation in the joint enterprise.

(15)  Message no. 4205

•   This is an audio message from D1: hey Benard, if on the hill you see anyone hiking, jogging and such, you report over here.  This is admissible against D2 as D1 was instructing D2 to act in pursuance of the joint enterprise.

(16)  Messages no. 4206

•   Admissible under co-conspirator’s rule.

(17)  Messages nos. 4210-4214

•   Admissible under co-conspirator’s rule, in particular when D2 messaged “Ok” and “k” indicating his acknowledgment of what had been said by D1 and Wong Long Ki (WLK).

(18)  Message no. 4215

•   This is an audio message from D1 to WLK: Meow, wait a bit longer we are still packing stuff, cleaning stuff. The contents of this message indicated that the joint enterprise had completed and they were tidying up.  The co-conspirator’s rule is no longer applicable so this is not admissible.

Messages between D2 and D3 extracted from D3’s phone

(1)  Messages nos. 49, 52

•   All admissible against D2 as declaration against interest, in particular with reference to his assertion that he would take part in the joint enterprise (at message no. 3759 on Lee’s phone).

(2)  Message no. 62

•   Admissible against D2 as declaration against interest, in particular with reference to his assertion that he would take part in the joint enterprise (at message no. 3759 on Lee’s phone).

4.As to the messages extracted from the WhatsApp Group from D3’s phone between March and April 2017 (ie before Lee became a member of the Group in May 2017, so not shown on Lee’s phone) listed by the prosecution under headings (1) (2) and (3), I rule these inadmissible against D2.

5.Even though D2 responded by messaging “yay” at 654 after D1 messaged “so we can fuck him whatever we like in night game”, such an expression is not clear enough to bring these messages under any exception to the hearsay rule, nor can they be used for non-hearsay purpose against D2, as I have already ruled that prior to D2 indicating his willingness to participate in the joint enterprise, D2’s position was the same as other members of the Group and the co-conspirator’s rule does not apply.

C.   AGAINST D3

6.I will again use the tables prepared by the prosecution in their written submission dated 4 March 2019.  As far as D3 is concerned, the prosecution only needs to rely on the WhatsApp messages extracted from D3’s own phone, whether such messages were in the Group or not.

7.Save for the messages nos. 8679 - 8685 (which correspond with messages nos. 1369-1375 on Lee’s phone which I already ruled inadmissible) I rule all the messages listed by the prosecution admissible against D3 for non-hearsay use.

Severance of trial of D1 and D2 from D3

8.History of this case showed that this Court was reluctant, at first, to sever the trial of D1 and D2 from D3.  However, this case has evolved dramatically, and totally unexpectedly, from the time this Court made the earlier ruling.  Then, there was no issue in relation to the WhatsApp messages.  The only issue was in relation to the Video-recorded Interviews admissible against D3, which required careful redaction so as not to be prejudicial to D1 and D2.

9.Now, with my ruling on the WhatsApp messages, it is clear that the amount or quantity of WhatsApp messages the prosecution can adduce against D3 is more than those the prosecution can adduce against D1 and / or D2, with the added complication that the jury will be asked to consider the truth of some of the messages in relation to D1 and D2, but not in the case of D3.  This issue in relation to the WhatsApp messages, together with the additional problem the prosecution will have to face regarding redaction (which may put D3 in a disadvantageous position, if redaction is done), convinced me that the most proper and fairest way forward is to sever the trial of D1 and D2 from D3.

10.I therefore ordered that the trial of D1 and D2 be severed from the trial of D3.

11.Having regard to the need to avoid a substantial risk of prejudice to the administration of justice in the present on-going trial, it is ordered that the publication (in any form) of any report of the proceeding concerning the admissibility of the WhatsApp messages and the reason for severance of the trial of D1 and D2 from D3 be prohibited until the conclusion of this trial or until further order.

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

Mr Chan, Siu-ming, leading Mr Lam Ka-yau, Michael, Counsel instructed by Messrs Stephen Lo & PY Tse, Solicitors, assigned by the Director of Legal Aid for the 3^rd defendant