HKSAR v. Yim Yu Hang and Others

HCCC 149/2018

[2019] HKCFI 566

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:  26 February 2019

Date of Handing Down Written Ruling: 9 April 2019

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RULING ON SECTION 16 DISCHARGE/

NO CASE TO ANSWER

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Background

1.As a result of my earlier ruling to sever the trial of Yim Yu‑hang (“Yim”) and Chow Ching-yin (“Chow”) for the murder of Bosco Kwok Wai-nok (“Bosco”) from Wong Long-kei (“WLK”), an amended indictment was filed.  In it, Yim (now D1) and Chow (now D2) were jointly charged with the murder of Bosco together with WLK (who will face his trial separately in September 2019).  Yim is jointly charged with Wong Wai-ho (“Wong”) (originally D4 and now D3) for an offence of Perverting the Course of Public Justice.  Wong alone faced one count of Handling Stolen Goods.

2.Mr Grounds for Yim applied for a discharge under section 16(1) of the Criminal Procedure Ordinance; alternatively, he asked this Court to rule that there is no case to answer in relation to the Perverting the Course of Public Justice charge.  Further, Mr Grounds asked this Court to reconsider the issue of severance between Yim and Wong.

3.Mr Chan Siu Ming, counsel for Wong, also applied for a s.16 discharge on the basis that there is no prima facie case against Wong.

Submission on behalf of Yim

4.I will first deal with Mr Grounds’ submission.

5.Mr Grounds submitted that the amended indictment dated 18 February 2019 is an indictment upon which the case against Yim will proceed, to which Yim has yet to be arraigned.  Although Yim had been arraigned on the earlier indictment, since a fresh indictment is filed, Yim is not precluded from making the application for a s.16 discharge.

6.Mr Grounds submitted that the section (s.16) does not define what an indictment is.  The Court has to decide what “the indictment” actually is.  Mr Grounds further submitted that the indictment is the charge sheet which is before the Court and available to the jury.  The previous / original indictment will not be before the jury.  It will be odd to hand a document containing charges to the jury upon which no plea has been taken.  Once a document containing charges has been filed, it becomes “the indictment” upon which the accused has to be arraigned.  This is not a case in which amendments are made to an existing document, upon which the prosecution is seeking reliance.

7.Mr Grounds submitted that in the peculiar circumstances of this case, Yim’s admission – which had been ruled inadmissible should –  not be taken into account by this Court in considering the section 16 application.  The same applies to any inadmissible evidence.

8.Alternatively, Mr Grounds submitted that should this Court rule that Yim is not entitled in law to make a s.16 application, this Court should nevertheless consider the issue of whether Yim has a case to answer on the Perverting the Course of Public Justice count.

9.Mr Grounds submitted that on papers, Yim directed Wong to delete the information on Bosco’s mobile phone prior to the war game held on 28 May 2017.  Wong did as told.  Bosco’s mobile phone was found in the possession of Chow.  When Chow was arrested for the murder of Bosco, he said “Ah Sir, it was I who killed Bosco Kwok Wai Nok.  I have kept his mobile phone in my rucksack.”  The deceased’s mobile phone was found in Chow’s rucksack.  Whilst Yim admitted in his Video‑recorded Interview that he had instructed Wong to delete the contents of Bosco’s mobile phone, with the ruling on Yim’s Video‑recorded Interview there is no admissible evidence that Yim was ever in possession of Bosco’s mobile phone, or that Yim has passed the mobile phone to Wong; or that Yim had instructed Wong to delete contents of the mobile phone.  Mr Grounds submitted there is no evidence under the first limb of Galbraith[1].

10.In the alternative, Mr Grounds submitted that any evidence which might exist in terms of photographs, videos or WhatsApp messages, they are so nebulous and vague that no reasonable jury properly directed could properly convict upon it.  In other words, the second limb of Galbraith.

11.Mr Grounds stressed that the Pervert the Course of Public Justice count provided a nexus for a joint trial involving Yim and Wong.  If, on the evidence currently stands, this Court finds there is no case to answer, this Court should then reconsider its earlier ruling not to sever the trial of Wong from Yim.

12.Mr Grounds cited the prejudice created against Yim by allowing Wong to be tried together with Yim, which he said would prevent or diminish Yim’s rights to a fair trial on the charge of Murder.  

13.On the other hand, severing Wong’s trial from Yim, Mr Grounds submitted, would mean that Wong’s case could be dealt with by a lower court expeditiously. The Jury would also not be burdened with any directions as to the admissibility of Wong’s statement in the Video‑recorded Interviews.  Severing Wong’s trial from Yim would greatly simplify the preparation of the trial as there would not be any need to redact Wong’s Video-recorded Interviews.

Submission on behalf of Wong

14.Mr Chan also submitted that since the prosecution has an amended indictment, Wong is entitled to make a s.16 application.  He relied on the case of R v Radley[2] and submitted that no matter how slightly the amendment was, there should be an arraignment.  The relevant passage cited is as follows:

“it may be that in cases like Harden ... where amendments are very slight and cannot really be regarded as in any way introducing a new element into the trial a second arraignment is not required, but judges in doubt on this point will be well advised to direct a second arraignment ...”

15.I would add here that after Mr Grounds was made aware of Mr Chan’s application, he also relied on Radley, and I was provided with the case of Harden[3], R v Martin[4]and a HK case The Queen v Chiu Yuk‑ching and another[5]for my consideration.

16.Mr Chan submitted the right to be re-arraigned exist so it is immaterial whether Wong has already been arraigned for the original indictment.

17.Mr Chan further submitted that s.16 is there to safeguard against unnecessary trials, to save unnecessary expenses and time and to serve the interest of justice.

18.As to why there was no s.16 application before arraignment on the original indictment, Mr Chan explained that he was relying on the authority of R v Hayter[6](as quoted in Archbold Hong Kong 2019 para 15‑112).  He was of the view that it might be permissible to use the out-of-court statements of WLK, Yim and Chow in their Video‑recorded Interviews against Wong.  However, after the voir dire, the statements of Yim and Chow were ruled inadmissible, so Wong’s position has changed.

19.Mr Chan submitted that not only there is no prima facie case against Wong in relation to the joint-charge of Perverting the Course of Public Justice against Wong, there is also no prima facie case against Wong in relation to the single charge of Handling Stolen Goods.

20.In order to show that there is no prima facie case against Wong, Mr Chan referred to various parts of the evidence to be adduced by the prosecution.  Without disrespect to Mr Chan, I do not think it necessary to repeat them here.

Response by prosecution

21.Mr Wei opposed to the s.16 application.  He submitted that Yim and Wong had already been arraigned so s.16 does not apply.  As a result of the severance, only the 1^st count of Murder was amended and the averment against Yim and Chow remained the same.  The 2^nd count of Perverting the Course of Public Justice was not amended at all.  Mr Wei submitted that it is not necessary to re-arraign Yim and Wong under the amended indictment.

22.Mr Wei questioned Mr Chan’s reliance on R v Radley in submitting that “whatever amendment is, slight or not, the right to re‑arraign always exist”.  Mr Wei submitted that nothing said by the Lord Chief Justice in that case supported Mr Chan’s submission.

23.Mr Wei further submitted that even assuming s.16 applies, there is evidence against Yim and Wong over and above what is required for a prima facie case.  Mr Wei also listed the evidence the prosecution will rely on and I do not think it necessary to repeat them here either.

24.Mr Wei submitted that there appears to be no jurisdiction for a judge to entertain a no case to answer submission before the conclusion of the prosecution case.

25.Mr Wei also responded to Mr Chan’s reliance on the case of Hayter and submitted that the facts of that case was very unusual, citing a Reasons for Decision of mine (HKSAR v Chow Heung-wing, Stephen & others[7], otherwise known as the DR case).  

26.Mr Wei submitted that, unlike the scenario in Hayter where one of the defendants in a joint offence had only his confession against him, the prosecution in the present case had never sought to prove its case against Wong by the guilt of Yim.  The fact that Yim’s confessions had been ruled inadmissible is of no relevance to the case against Wong.

27.As to the issue of severance, Mr Wei reiterated that there could well be a huge repetition of evidence in the trial of Wong if it is severed.  The paramount consideration for this Court is fairness – both to Yim and Wong, and to the prosecution.  In a case where defendants are properly joined there remained the norm rather than exception that they would be tried together.

28.Mr Wei submitted that any alleged prejudicial effect in Wong’s Video-recorded Interviews against Yim, if any, could be dealt with by way of editing.  Submission of no case should not be used as a tool to support a severance application.

29.Mr Wei submitted lists setting out which parts of Wong’s Video-recorded Interviews the prosecution is agreeable to be redacted upon request of Yim.

My Consideration

30.Since the main application by Mr Grounds and Mr Chan is a s.16(1) discharge, one should first look at the relevant wordings of the section:

“Discharge of accused after committal without a hearing

(1) Where the accused was committed for trial under section 80C(4) of the Magistrates Ordinance (Cap. 227) … the accused may at any time—

(a) …

(b) after the filing of the indictment and prior to his arraignment thereon,

apply to a judge for his discharge on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance (Cap. 227) or, as the case may be, delivered to the Registrar under section 10A, as read with any further evidence the Secretary for Justice has notified the accused he will seek to have admitted at the trial, is insufficient to establish a prima facie case against him for the offence with which he is charged or for any other offence for which he might be convicted upon that charge.” (emphasis added)

31.There is no question that Yim and Wong were arraigned on the original indictment.  Although there is an amended indictment, the only change was made to the Murder count, with the remaining two counts being unchanged.  In other words, the joint-charge of Perverting the Course of Public Justice against both Yim and Wong is exactly the same as before.

32.In my view, the indictment is a document or vehicle to contain the charge(s). It is the substance of the charge(s) that the court will look into.  Both Yim and Wong had pleaded not guilty to the charge of Perverting the Course of Public Justice which was contained in the original indictment.  Strictly speaking, there is no need for this Court to take plea from either of them again unless there is a change of plea, although for the sake of good practice the Court will take plea again when there is an amended indictment containing amendment to another charge.

33.In this regard I also agree with Mr Wei what the Lord Chief Justice said in R v Radley does not assist Wong.  The Lord Chief Justice’s advice to judges amounts to thus: “if in doubt as to whether the amendments are very slight and cannot be regarded as in any way introducing a new element into the trial” then a second arraignment should take place.  There is no amendment to the Perverting the Course of Public Justice count or the Handling Stolen Goods count against Wong at all.  There is no need to re-arraign Wong (though as I said, as a good practice the court will nevertheless take plea again).  I do not find the other cases submitted to me particularly helpful.  They are not directly on point.

34.In any event, reading the wordings of s.16, what the court has to decide was the evidence as disclosed in the documents handed to the court under the Magistrates’ Ordinance, and any further additional evidence submitted to the court, which I will collectively called “the Committal Bundle”.  The Committal Bundle included all the statements made by all defendants, ie  the oral admissions, post-records, video‑recorded interviews, and case reconstructions.  The fact that this Court ruled out statements made by Yim under caution after a voir dire does not mean that this Court should consider a s.16 application.  In my view, this Court can only consider the strength of the evidence as disclosed in the Committal Bundle.

35.The spirit of section 16 is that after an indictment is filed, and before arraignment, if it is shown on papers (ie the Committal Bundle) that there is insufficient evidence to establish a prima facie case against a defendant, then that defendant should be discharged.  Should that happen there will be no trial.  It is not the spirit of s.16, in my view, to allow an application to discharge after arraignment has taken place on an original indictment; after proceedings of voir dire and rulings have taken place, after an application for severance and ruling have taken place, and after an amended indictment is filed to reflect the position of severance.

36.In the absence of any statement from Yim (as a result of my ruling in the voir dire), it is for the prosecution to decide whether to proceed to charge Yim with the Perverting the Course of Public Justice offence.  If the prosecution decides to proceed, the proper time for Yim to make the application of no case to answer is at the end of the prosecution case.

37.Mr Chan gave his reason for not making a s.16 application before the arraignment on the original indictment, relying on the case of Hayter.  Without going into the details of that case, I only wish to say that the facts of Hayter is very unusual and I do not see its application to this case.  I agree with Mr Wei’s submission on this issue.  In any event, as I have already indicated, what I have to look at is the Committal Bundle, not what is left after my rulings on the voir dire.

38.For the reasons I have stated, I rule that both Yim and Wong fail in their s.16 discharge application.

Application of severance

39.Having ruled against Yim and Wong in relation to the s.16 discharge, I will now re-consider the question of severance of the trial of Yim from Wong.

40.Whilst I appreciate the submissions of Mr Grounds and Mr Chan regarding the alleged weaknesses in the prosecution case against Yim and Wong, which they submitted would lead to a successful no case to answer submission, I have already indicated this is not the proper time for this Court to consider this issue and I am certainly not prepared to say, at this stage, that the second limb of Galbraith will apply at the end of the prosecution case.

41.I am of course mindful that it is only in exceptional cases that severance should be ordered when in this case Yim and Wong are jointly charged with the offence of Perverting the Course of Public Justice.

42.I have earlier expressed my view that with suitable redaction of Wong’s video-recorded interviews, there was no need to sever the trial of Yim from Wong.  At that time, I did not know to what extent Mr Wei is agreeable to the request of Mr Grounds in relation to the redaction.

43.I have since been supplied with several lists containing Mr Grounds’ request and Mr Wei’s response, and I have gone through those passages, in particular those Mr Wei did not agree to any redaction.  Having considered the contents of those “controversial” parts and the reason given by Mr Wei as to why he did not agree to their redaction, I am in agreement with Mr Wei as to the extent of redaction to be done to Wong’s two video-recorded interviews.

44.I have been supplied with request from Mr Chan not to reduct part of the video-recorded interviews. I will deal with that at a later stage. 

45.In any event, having considered the contents of Wong’s two video‑recorded interviews (after the redaction as agreed by the prosecution — even if parts of it have to remain as requested by Mr Chan), I am of the view that any prejudice to Yim in Wong’s video‑recorded interviews could be cured by proper directions from this Court to the jury.  The situation faced by Yim in relation to Wong’s video‑recorded interviews is very different from his situation when faced with WLK’s video-recorded interview.

46.For these reasons, I also rule against Yim in his application to have his trial severed from Wong.

47.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 Section 16 Discharge / No Case To Answer 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, Counsel instructed by Messrs Stephen Lo & PY Tse, Solicitors, assigned by the Director of Legal Aid, for the 3^rd defendant

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

[2] R v Radley (1973) 58 Cr App R 394

[3] R v Harden [1963] 1 QB 8

[4] R v Martin [1962] 1 QB 221

[5] The Queen v Chiu Yuk-ching and another [1985] 2 HKC 76

[6] R v Hayter [2005] UKHL 6

[7] HKSAR v Chow Heung-wing, Stephen & others (HCCC 437/2015, Reasons for Decision (on Admissibility of Evidence re CIK, GMP and Joint Criminal Enterprise), 13^th June 2017, paras 37, 48-51)