HKSAR v. Wong Yu Wing
Read the full judgment text of HCCC 397/2019 on BabelCite. This High Court CFI judgment was delivered on 22 July 2020.
1. This matter has now been set down for re-trial on 3 August 2020 after a successful appeal against conviction dated 29 November 2019 under CACC 209/2018. I have had the benefit of the transcript of the original voire dire, initial aborted trial and effective trial before DHCJ Douglas Yau, which runs to some 2000 pages not including the learned judge’s summing up or prosecution closing speech. That was an extremely lengthy trial for a solitary issue of whether the defendant possessed the drugs
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HCCC 397/2019 [2020] HKCFI 1775 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 397 OF 2019 _________________
_________________ Before: Hon Campbell‑Moffat J in Court Dates of Hearing: 23 April, 26 May, 19 June and 22 July 2020 Date of Ruling: 22 July 2020 ____________________ R U L I N G ____________________ 1.This matter has now been set down for re-trial on 3 August 2020 after a successful appeal against conviction dated 29 November 2019 under CACC 209/2018. I have had the benefit of the transcript of the original voire dire, initial aborted trial and effective trial before DHCJ Douglas Yau, which runs to some 2000 pages not including the learned judge’s summing up or prosecution closing speech. That was an extremely lengthy trial for a solitary issue of whether the defendant possessed the drugs for self-consumption or whether he possessed them in order to traffic in some part of them. The cost to the public purse was significant. It is the duty of both the judge and counsel for the prosecution and defence to ensure that criminal trials are run efficiently in a manner which is consistent with the proper administration of justice. That is a very difficult task for a judge who is not aware of the full breadth of the defence case. Case management is an exercise in which all parties should be engaged. That includes ensuring that only those witnesses who are actually required to attend are called to give evidence; that their examination and cross‑examination is focused and succinct and that only relevant and admissible evidence is sought to be called before the jury. Counsel has a duty to carry out his or her duties with these goals in mind. It should not be the function of the court alone to ensure that such is the case. It is all too common nowadays for counsel to attempt to adduce or elicit evidence without thought for its relevance or admissibility in the knowledge that the court will act as gatekeeper and intervene where necessary and, if not, then all well and good. 2.With the benefit of the transcript, I am in a far better position than might normally be the case, to identify the case for the prosecution and defence in this trial in order to effectively manage the forthcoming re‑trial. Effective case management prior to and at the beginning of any trial, especially before a jury is empanelled, is in the interests of all concerned. But the management process continues throughout. PROSECUTION CASE 3.On 22 February 2017, members of District Anti‑Triad Squad 1 went to the home address of the defendant which was Room D, Flat D, 3/F, Pak Far Building, 53 Shek Kip Mei Street, Sham Shui Po. At that time he was with a male friend Ko Chun‑wai. The team arrested and cautioned both men for trafficking of dangerous drugs found within the room. Under caution the defendant said “The dangerous drug was for my own consumption. They would be given to others if someone wanted them.” They were taken to Sham Shui Po Police Station to be processed and interviewed. At some stage the following day Ko was released without charge. It is the prosecution’s case that Ko was a wholly innocent third party. The defendant was charged with trafficking on the basis that he either sold or gave drugs to others. DEFENCE CASE 4.The defendant accepts he abuses drugs but denies having said that he would provide drugs to others on any basis. He alleges that he was assaulted by the officers immediately upon entry into the room and thereafter he was the recipient of threats and inducements whilst also being the subject of oppressive behaviour. He maintains that all of the officers in DATS 1 had attended at his address in order to induce him to provide information about his supplier and, having failed in that regard, they were of one mind in seeking to induce him to incriminate himself in order to let Ko go. That being the case, their credibility is so seriously undermined as not to be believed when they say he made admissions as to trafficking. PRE-TRIAL ISSUES 5.A number of issues arise which require to be dealt with before the jury is empanelled but as a part of the trial process. Some are very minor, but in the interests of clarity have been included formally within this Ruling. They are:
CASE MANAGEMENT 6.In seeking to manage a criminal trial effectively the court is aware of the division of functions between itself and the jury. However, there is a thin line between calling evidence going only to credit and as opposed to addressing an issue in the case.[1] It is not always an easy line to draw. In this matter the court has the benefit of the transcript of the last trial and has the advantage that it would not have in the normal course of events if this were the first trial in time. The following ruling is premised upon extensive discussion between counsel and the bench so as to reach a fair and effective way forward. VOIRE DIRE 7.The first matter which needs to be resolved is the Voire Dire in which the defendant seeks to render inadmissible the notebook entry of DPC 9299 Leung Chun-yin [P18] and the ensuing video recorded interview [P40]. The defendant maintains that he was variously threatened, induced and/or oppressed into signing P18 and was coached by DPC 9299 to lie in interview. Items (i) and (ii) above will be dealt with on the Voire Dire. 8.As to item (iii), in the last trial, seven witnesses were called upon the Voire Dire, some of whom were not percipient witnesses as to the events complained of. I have provided defence counsel, Mr Lam, with an opportunity to address me upon how DIP Sung Kai-wai, DPC 12761 So Cheuk-kit and SSgt Ho Kam‑ming are relevant to that issue. They are not named on the back of the indictment and have therefore not provided any witness statements in these proceedings. That is because they were not to be relied upon by the prosecution as relevant percipient witnesses, a view in which I concur. The defence now concede they no longer require DPC 12761 So Cheuk‑kit or SSgt Ho Kam‑ming. I note however that the prosecution has no objection to tendering DIP Sung but that is not the point at issue. The court has a positive duty to manage criminal trials. There is a fine line to be drawn between management and interference in the case being adduced by either party and, as a consequence, it has become the habit of the courts to allow greater and greater liberties to be taken. The golden rule of evidence is a simple one. Is it relevant? Is it admissible? Having considered the submissions of Mr Lam and having read the transcript of the last set of proceedings, including the transcript of the Voire Dire, I am sure that DIP Sung cannot give percipient relevant evidence on the issue of voluntariness and I will not allow him to be called on the Voire Dire. VIDEO RECORDED INTERVIEW OF KO CHUN-WAI 9.The defendant wishes to play the VRI of Ko and to adduce the related transcript of that recording. Ko was present in the defendant’s flat at the time of the operation and was arrested at the same time. He was taken to Sham Shui Po Police Station and was interviewed. After interview, no charges were preferred and he was released. Mr Lam wishes to rely upon the manner in which this interview was handled by the interviewing officers to support his allegation that the officers were acting in concert to put pressure upon the defendant to provide information and when he finally succumbed to that pressure they released Ko and therefore the interview which took place was for show and not properly carried out. 10.If that is indeed the raison d’etre of Mr Lam for wanting to call this evidence, then he does not seek to produce an out of court statement made by a third party who is not a witness to the proceedings. What he wishes to do is to adduce the questions asked by the interviewing officer. He maintains however that he also wishes to put the answers of Ko before the jury as they are part of the exercise in this charade. That cannot be correct for there is no evidence that Ko was part of this sham and in any event a perusal of his answers indicate that he was completely truthful throughout. Ko’s answers are irrelevant to the defendant’s case. If what he seeks to achieve is to show a sham exercise by the interviewing officer then I do not see why that cannot be done by simply putting his case to the relevant police witness. The officer will no doubt agree what he said and, presumably, disagree that he was taking part in a charade but that will be a matter for evidence. 11.How then does the interview itself become an admissible exhibit? Mr Lam wishes to suggest to the jury that it is materially different from the interview with the defendant. The prosecution say it will of necessity be different because one is clearly not involved in trafficking and the other has made admissions as to trafficking. If he were allowed to adduce the VRI itself, there is no other evidence of a similar nature against which the jury can assess the type of interview carried out with innocent third parties. It follows that they are being asked to speculate as to the content of the usual third party interview. 12.Quite apart from the issue of admissibility I foresee a number of pitfalls in this approach. For example, when Mr Lam puts his case to the relevant officer, the officer is entitled to explain the normal practice in relation to the interviewing of third parties arrested at a scene. He would be entitled, under cross‑examination on the point, to distinguish between the interviewing of those whom the police had grounds to believe were drug traffickers and those about whom they had no knowledge. He would also be entitled to explain why the two were interviewed in a different way. All of which would trigger the issue, which Mr Lam is at great pains to avoid and that is that this was a planned operation on a known target. This course of action is of course entirely a matter for Mr Lam, but having opened Pandora’s box, he will be in great difficulty closing it again. The VRI of Ko may not be played nor, as currently foreseen, may the transcript be placed in evidence. DEFENCE DOCUMENTARY EXHIBITS A. Telephone Records 13.The defendant wishes to rely upon a record of calls between himself and his girlfriend on the night in question. He does not intend to call Ms Lam to give evidence on his behalf. The calls will therefore have to be produced in accordance with section 22A of the Evidence Ordinance, Cap 8. Mr Lam has produced a certificate to that effect but unfortunately it is not in proper form in that it does not attribute the name of the subscriber of the telephone number and does not describe its contents in sufficient detail. Once in proper form, no doubt it can be included in an admitted fact. Until then, it is inadmissible. B. Photographs 14.As part of his character evidence, the defendant wishes to rely upon a number of photographs to show his life at the time of this offending. Subject to the court being satisfied as to the date of these photographs, I can see no reason why a small selection of such photos should not be relied upon within the defence case. Photographs 12, 13, 18, 19, 23, 29, 31 and 35 may be produced. C. PD9 15.PD9, as it was referred to, incorrectly, in the last trial, is a piece of paper which the defendant maintained had been provided to him by DSgt 45945 Liu Kwok‑fai after the event, and upon which the DSgt had written a Chinese character and a telephone number for the defendant to ring if he had any information which would assist the police. This is to be adduced in the defence case. There is now an admitted fact as to the use made of that telephone number by the police. However, this is an anti‑triad squad and consequently it has been agreed that the title of the squad will not be provided. In so doing, I am not ruling that this title may not be adduced in evidence if the issue arises. CCTV 16.As to item (vi), the prosecution has made enquiries about the availability of the CCTV recording of the custody suite in Sham Shui Po at the material time. This matter was raised for the first time during the evidence of the defendant under cross‑examination in the first trial. He wished to rely upon it to show that he had been asked to sign multiple documents at one time. A significant period of time has passed since the date of this offence. The court has been told that CCTV recordings are retained for approximately a month. As a result, no CCTV recording of the custody area is available at this late stage and would not have been available at the original trial as the issue was raised late in the day. Both counsel have agreed that the proper way to deal with this issue is for the prosecution to have a witness statement to this effect served upon the defence and thereafter for this information to be reduced to an admitted fact so as to avoid any speculation as to why no CCTV recording is before the court. DRUGS VALUATION 17.As to item (vii), defence counsel, Mr Lam requires the attendance of the valuation officer, DSIP Ho Yan-kit, in order to put questions to him of the range of price for drugs on the relevant date. Mr Lam suggested that the officer’s evidence could be adduced under section 65B of the Criminal Procedure Ordinance, Cap 221 and he be tendered for cross‑examination. I consider the better course to be that the officer be called to give evidence in chief and thereafter be cross examined, which would do away with the need to have yet another exhibit before the jury when the point is a simple one and can be made orally. The cost of the drugs in question is not a live or central issue in this case as the defendant accepts he abuses drugs. It is relevant only so far as the defence case is that the defendant did not need to traffic drugs commercially in order to maintain his lifestyle, which, he maintains, was a comfortable one. EXPERT REPORT 18.Dr Sham, on behalf of the prosecution has correctly pointed out that the evidence of Dr Lam in respect of the consumption of drugs is quite lengthy and technical. It is not all strictly relevant to the case at hand. He has suggested and Mr Lam has agreed, that this evidence can be reduced into writing in a summarised form and placed within the admitted facts as Mr Lam has indicated that he does not wish to cross‑examine this witness. If, in due course, the defence have a change of mind in this respect and wishes to cross‑examine Dr Lam, then I consider that the whole report as it stands should be placed before the jury. DNA EVIDENCE 19.As to item (ix), there is DNA evidence within the updated Unused Material at MFI‑1A. I am told that the forensic chemist found female DNA on P2 on 19 May 2017. On 12 June 2017, a comparison in the database of the police resulted in the identification of Chan Tsz‑ling. On 2 August 2017, an attempt to arrest her was unsuccessful and she was entered onto a stop watch list. She was eventually arrested on 29 October 2019 and, after a no comment interview, was placed on police bail. Mr Lam seeks to have this information placed within the admitted facts. He has submitted that this is an issue his client will give evidence upon and he will be putting his case upon it to the relevant prosecution witnesses. He has disclosed no more than that. The impression I am left with is that the defence will be suggesting that the police knew about her relationship with the defendant at the time and deliberately took no action against her. In the absence of any concrete outline as to how this lady is relevant to an issue in the case, I rule that this evidence should not be part of the prosecution case and that Mr Lam is at liberty to seek to have it admitted within his own case when the relevance of the admission will become clear. Both counsel have agreed this course of action. In so ruling, I have warned defence counsel of the risk that the course of action which I envisage he seeks to take may open up background evidence as to why it was the police attended at the defendant’s home address in the first place. SEARCH WARRANT 20.As to item (x), this too is a very dangerous area for the defence. Defence counsel asks that the reference to the search warrant at counters 323 and 324 of the defendant’s VRI [P40] be edited out because of the potential prejudicial effect to the defendant and that any such effect outweighs its probative value. At first blush that is true. However, the defence case in this trial is one of considerable breadth. Having read the transcript of the previous trial and the amended Grounds of Objection in this trial, I can foresee the same tactic being adopted in this trial. In essence, the defence case is that these officers as a group, from senior officer down to PC and across to station sergeants, jointly and severally behaved in a wholly dishonest manner to put pressure upon the defendant to inculpate himself and others and when that was not achieved, made up evidence against him. If that is the defence case, it would be open to the prosecution to ask the officer whether he knew of the defendant prior to the evening in question, why he was there and whether the defendant had been discussed as between the officers. It would be open to the witness to say that he did not know the defendant and was only at the scene because he had been briefed to do so. Part of the defence case is that DPC 9299 entered his room and immediately attacked him. That would fly in the face of evidence which suggests that a search warrant was produced for the defendant to read before entry was gained into the flat. In such circumstances it would be admissible. Thereafter, any attack upon the existence of the search warrant would necessarily lead to evidence of the operation and the earlier briefing, both of which may be relied upon in any event in the face of the defence case being run. I have for now ruled that counters 323 and 324 should be edited out of the VRI, out of an abundance of caution and in fairness to the defendant but have warned defence counsel that such editing is not indicative of the approach of the court if defence counsel puts his case in such a manner as to trigger an application to adduce other evidence of the manner and motive for the operation. In such an instance the unedited version of the VRI will be reverted to as, no doubt, it will be adduced at the end of the case for the prosecution. 21.For the avoidance of any doubt, the witnesses will not be warned to avoid any mention of the search warrant or of the operation. Mr Lam will have to take his witnesses as he finds them given the type of defence he admits he is running. I will not bind the hands of prosecution witnesses in such an artificial way. The practice of advising police witnesses not to mention that a defendant is a target or the subject of a briefing is based upon the premise that there is no such attack upon their veracity. Where the defence case is that they came to the scene in order to behave in an unlawful manner, the actual reason for their presence at the scene is both relevant and admissible if triggered by the defence. DEFENCE WITNESSES 22.The defence wish to call Pastor Hui. The defence seek to rely upon him to give evidence of the fact that he asked Ko Chun‑wai to go to visit the defendant on the evening in question and to ask him to supper because the defendant had stopped attending church. None of this is relevant to the issue before the court. Ko was a wholly innocent bystander who is not coming to give evidence in his own right; was not proceeded against and forms no part of the prosecution case as against the defendant. Mr Lam may not rely upon Pastor Hui for this purpose. However, where Mr Lam seeks to rely upon this witness to show that he had previously been a practising Christian and the character of the defendant whilst joining in church activities, this is relevant and admissible as evidence of character and I will permit it. He will need to pay particular attention however to avoiding the introduction of hearsay evidence. PHOTOGRAPHER 23.The prosecution are to make enquiries with the photographer PC 1847 Chan Wing‑ho, to establish in what order the photographs were taken and whether he moved the exhibits between locations. Thereafter that should be reduced to an admitted fact in order to avoid the necessity for that witness to attend. Mr Lam wishes to take the point that the exhibits were moved to the hallway/lobby to be photographed and then returned to the defendant’s room and photographed in their original position. This was not put during the first trial but now appears to be the defence case. The admitted fact should address this point and the exhibits officer, who handled the exhibits, will be giving evidence and subject to cross-examination upon it in any event. 24.This matter is adjourned to 3 August 2020 for the Voire Dire to take place. The jury are to be empanelled on 7 August 2020.
Dr Alain Shum (on 26 May, 19 June and 22 July 2020), counsel‑on‑fiat, and Ms Noelle Chit SPP (on 23 April and 26 May 2020), of the Department of Justice, for HKSAR Mr Shahmim Khattak (Kelly Lam) and Mr Bowie Yip, instructed by Benjamin Au & Billy Chan, assigned by the Director of Legal Aid, for the defendant |
Cases cited in this judgment
Further hearings and rulings under HCCC 397/2019