HKSAR v. Wong Long Ki and Others

HCCC 149/2018

[2019] HKCFI 565

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: 18 February 2019

Date of Handing Down the Written Ruling:  9 April 2019

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RULING ON SEVERANCE OF TRIAL

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1.Counsel for D2 Mr Grounds and counsel for D3 Mr McNamara applied to sever the trial of D2 and D3 from D1 and D4.

2.The prosecution opposed to the application while D1 and D4’s respective positions were neutral.

3.The main ground for the application by both D2 and D3 was that the contents of D1’s Video-recorded Interview were so prejudicial to D2 and D3 that no proper directions to the jury could realistically eliminate the prejudicial effects.

4.Mr Grounds also submitted the same argument in relation to the contents of D4’s Video-recorded Interviews – D2 was jointly charged with D4 with an offence of Perverting the Course of Public Justice.

5.It is Mr Ground’s submission, supported by Mr McNamara, that the prejudicial passages in D1’s Video-recorded Interview were voluminous and redaction is extremely complicated. Mr Grounds submitted the same argument in relation to D4’s Video-recorded Interviews.

6.All parties rely on the relevant passages in Archbold Hong Kong 2019[1].

7.It is not in dispute that it is only in exceptional cases that separate trials should be ordered for two or more defendants who are jointly charged with participation in one offence[2].

8.What I have to decide is whether this is an exceptional case to order separate trials.

9.As discussed with parties during submissions, in relation to D1’s first Video-recorded Interview, should the hearsay evidence about what D2 had allegedly told D1 be redacted, and should references to acts done due to “duress” be redacted, there may not be any need to sever the trial of D2 and D3 from D1, particularly bearing in mind that what D1 had said during the said Video-recorded Interview about duress could not be a defence to Murder as his alleged fear was after he learnt from Martin (ie D2) that Bosco was killed.

10.However, D1’s counsel Mr Arthur informed this Court that D1 was not relying on duress as a defence to Murder, rather the duress was to explain what D1 meant when he said under caution that he was forced by Martin to help: ie not to help Martin to kill Bosco, but to help Martin after the killing was already done.  D1 objected to any redaction of the said Video‑recorded Interview.

11.In such circumstances, D1’s said Video-recorded Interview clearly cannot be redacted.  Mr Wei for the prosecution fairly conceded the same.

12.Having considered again the contents of D1’s Video-recorded Interview, I agree with Mr Grounds and Mr McNamara that the prejudice would not be cured by any proper direction from this Court.  It would be impossible to expect jury members to perform the mental gymnastics to ignore what D1 has said, even directed to do so.

13.I am of the view that this is a proper case to sever the trial of D2 and D3 for Murder from D1.  In other words, D2 and D3 will be tried together for the murder of Bosco, D1 will be tried for Bosco’s murder separately at a later stage.

14.I appreciate D2 also asked for his trial to be severed from D4.  However, D4 is not facing a joint charge of Murder with D2, but an offence of Perverting the Course of Public Justice with D2, D2 also faced a single charge of Handling Stolen Goods alone.  I am of the view that with suitable redaction of D4’s Video-recorded Interviews, there is no need to sever the trial of D4 from D2.

15.For these reasons, the trial is severed into two.  The first trial will deal with the Murder charge against D2 and D3, the Perverting the Course of Public Justice charge against D2 and D4, and the Handling Stolen Goods charge against D4.

16.The second trial will deal with the Murder charge against D1.

17.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 severance of trial of D2 and D3 from D1 and D4 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 Department of Justice for HKSAR

Mr Arthur, Michael John Bruce, leading Mr Cheung, David CW, Counsel instructed by Messrs Fan, Wong & Tso, Solicitors, assigned by the Director of Legal Aid, for the 1^st defendant

Mr Grounds, Christopher, leading Mr Lo, Paulinus, Counsel instructed by Messrs Francis Kong & Co, Solicitors, assigned by the Director of Legal Aid, for the 2^nd defendant

Mr McNamara, John Patrick, Counsel instructed by Messrs SH Chan & Co, Solicitors, assigned by the Director of Legal Aid, for the 3^rd defendant

Mr Chan, Siu-ming, Counsel instructed by Messrs Stephen Lo & PY Tse, Solicitors, assigned by the Director of Legal Aid, for the 4^th defendant

[1] Archbold Hong Kong 2019 from paras 1-177 onwards.

[2] see R v Moghal 65 Cr App R 56.