HKSAR v. Chen Keen (Alias Jack Chen) and Others

HCCC 309/2019

[2021] HKCFI 304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 309 OF 2019

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Before: Deputy High Court Judge Bruce SC in Chambers

Date of Hearing: 19 January 2021

Date of Ruling: 4 February 2021

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LIVE CCTV LINK−VIDEO RECORDING: RULING

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Introduction

1.The prosecution seeks to adduce the testimony of a number of witnesses outside of Hong Kong.  At the time of writing, there are 3 such witnesses in New Zealand and 1 in Singapore.  There may be others. What the prosecution wishes to do is adduce this evidence under the auspices of Part IIIB of the Criminal Procedure Ordinance, Cap 221.  Part IIIB provides for Taking Evidence from Witnesses outside Hong Kong by Live Television Link.

2.The accused do not oppose such witnesses giving evidence under the auspices of Part IIIB.  None of the bases for refusing such an application under section 79I(2) exist.  Part IIIB Ordinarily, Rule 3(2) of the Live Television Link (Witnesses outside Hong Kong) Rules, Cap 221L require that the application to present the testimony of a witness under the provisions of Part IIIB should be made within 42 days of committal.  For reasons which it is not necessary to recite, we are a long way past that date.  The accused do not oppose an extension of time under Rule 8 of the Rules.  It is appropriate to grant such an extension and to give permission for the witnesses nominated by the prosecution in their application to give evidence by way of live television link.

3.There is one further feature of the prosecution request for the giving of evidence by way of live television link in this case.  The prosecution wishes to video record the examination, cross-examination and, where appropriate, re-examination of such witnesses in the absence of the jury.  Such examination would be in the presence of the accused.  The prosecution then wishes to play the video thus recorded to the jury as the testimony of those witnesses.  The basis for this application is that this is a far more convenient course for the jury given that New Zealand is 5 hours ahead of Hong Kong time.  The prosecution submits that to get in a reasonable day’s examination of the New Zealand witnesses, the jury would need to get up very early in the morning in order to hear the evidence. Obviously, that is not the position for Singapore but that does not diminish the issue raised by the prosecution.

4.Such a course would be much more convenient for the jury. However, those representing the accused raised the principled objection that such a course is not permissible under Part IIIB of the Ordinance. In essence, the contention of the accused is that the presentation of video recorded testimony is not permitted under the laws of evidence and procedure unless there is statutory authority for such a course.

Contentions of the parties

Prosecution

5.The contentions of the prosecution come from two sources. The first is the oral presentation of the prosecutor.  The second comes from a written document from the prosecution team which essentially replicates - albeit with some refinements - what was submitted orally.

6.The prosecution contends that video recording witnesses in New Zealand has a number of advantages:

(1)  such a procedure enables the Court to sit hours to suit the New Zealand witnesses and if necessary tailor the usual breaks to their convenience;

(2)  this course enables objections to be edited out of the recording so that the jury does not have to wait whilst argument takes place; and

(3)  it enables the New Zealand witnesses to be told well in advance of exactly when they will be needed so as to make the best use of their time.

7.The prosecution makes the point that significant inconvenience to the jury might be caused if, for example, the witnesses were in the United States of America.  It is contended that “a jury could not be expected to stay up overnight to hear witnesses”.

8.The prosecution contended that the video recording of the evidence would make no different to the nature and quality of the evidence that the jury hears.

9.The prosecution also contend that the Court is empowered to make an order permitting the video recording of the New Zealand witnesses through the power vested in the Court under section 79I to impose conditions on the grant of permission to take evidence under Part IIIB.

10.Further, it is contended that if section 79I does not permit a Court to impose such conditions as would permit the video recording of the testimony of the New Zealand witnesses, the Live Television Link (Witnesses outside Hong Kong) Rules could be amended by the Chief Judge of the High Court to permit such a course.  Section 79L permits the Chief Judge to make rules or to give directions.  Finally, it was suggested that it was open to the Court to permit such a course under the inherent power of the Court.

11.Finally, the prosecution contends that the reliance on R v Reynolds [1950] 1 KB 606 by those representing the accused is inapplicable to the present situation.  It is contended that this was decided at a time when the video recording of testimony could not be undertaken.

Defence

12.The essential contention of those representing the accused is that nowhere in Part IIIB is there any provision which expressly or impliedly permits the recording of testimony in the manner proposed by the prosecution.  It is contended that it would be necessary for express statutory authority to exist to permit such a course.  Those representing the accused point to the provisions in Part IIIA of the Criminal Procedure Ordinance as a case in point where such a course of permitted.  Part IIIA deals with Special Procedures for Vulnerable Witnesses.

13.Under Part IIIA, there is an explicit provision for the video recording of the victims of certain sexual crimes.  Section 79C permits a video recording a person who is said to be the victim in cases of serious sexual misconduct to be given in evidence with the permission of the Court in criminal proceedings.  Those representing the accused make the point that where the Court gives permission for the video recording to be presented it is to stand as the examination-in-chief of that person and the person who gave the recording is still to be the subject of cross-examination.

14.It is contended that there is no other provision permitting video recorded testimony of a witness to be received in evidence.

15.Those representing the accused in this case contended that if these arguments are correct, then it would not be open to this Court to permit such a course by imposing conditions under section 79I(1) of the Ordinance.  Further, it would not be open to amend the Live Television Link (Witnesses outside Hong Kong) Rules to permit the course proposed by the prosecution.  It is contended that the making of such rule would be outside the scope of the power granted by the Ordinance under section 79L to make rules or to give directions.  It is contended that such rules or directions could only facilitate the carrying into operation of the Ordinance as enacted rather than to expand the nature of the enactment.

16.It is also contended that what underlies the decision in R v Reynolds (above) is that the testimony of a witness germane to a fact in issue must be given in open court in the presence of the jury.

Analysis

17.There can be no doubt that the video recording of the testimony of witnesses who are outside Hong Kong and the presentation of that recording as the testimony of that witness before a jury could, in many circumstances, be of substantial advantage.  That is particularly so where there is a substantial time difference between the place from which the witness proposes to testify and Hong Kong.  The advantages in favour of such a course contended for by the prosecution appear to me to be powerful.

18.The real issue is whether the laws of evidence and procedure in Hong Kong permit such a course.  Evidence could not be taken by live video link from another place outside Hong Kong unless such a course was permitted by statute: R v Diane [2010] 2 Cr App R 1, §13.  Part IIIB of the Criminal Procedure Ordinance permits such a course provided it is done in accordance with the provisions contained in that Part.  The question for consideration is whether it would be open to video record testimony given under Part IIIB and present to the jury not the evidence given by way of live television link but the video recording of that exercise.

19.The underlying principle which governs the reception of testimony in relation to a fact in issue is that it must be done in open court, unless there is a clearly recognised exception to the adoption of such a course.  That, so it seems to me is the underlying rationale of R v Reynolds (above).  The facts in that case can be taken from the headnote and are as follows:

“At the trial of the appellant on a charge of indecently assaulting a girl eleven years of age a discussion took place between the [trial judge] and counsel as to the child's capacity to give evidence on oath. During the discussion, by direction of the [trial judge], the jury left the court. In their absence, a school-attendance officer was called as a witness and gave evidence as to the class of school attended by the child, the quality of the home from which she came and her standard of education. After the witness had been examined and cross-examined the jury returned to court, and the child was sworn as a witness and gave evidence on oath.”

20.On appeal, the Court of Criminal Appeal of England (Lord Goddard CJ, Byrne & Morris JJ) held that such a procedure was irregular.  Lord Goddard CJ held:

“… the evidence of the child must be given in the presence of the jury was that, although the duty of deciding whether the child may be sworn or not lies on the judge and is not a matter for the jury, it is most important that the jury should hear the answers which the child gives and see the demeanour of the child when she is questioned, because it will enable the jury to come to a conclusion as to the weight which they should attach to her evidence. If that was the reason why the court in Rex v Dunne [(1930) 21 Cr App R 176] held that it was essential that the evidence should be given in the presence of the jury, in this case that is so a fortiori, it seems to me, when a witness is called to assist the court by telling it what his experience may be of the child and of the character or impression that he may have formed of the child. The jury would then have all the facts before them with regard to the child’s truthfulness, or reputation for truthfulness, and all the information which could be given on the question whether the child was one who would be likely to tell the truth and on whose evidence they could rely.”

21.The judgment of Lord Goddard CJ then recites the underlying principle as follows:

“I may say - and I am sure that I do so with the concurrence of my brethren - that it should be regarded as most exceptional that any evidence should be given in a criminal trial otherwise than in the presence of the jury.”

22.It is also instructive to look at the brief report of R v Dunne (1930) 21 Cr App R 176.  Apparently, in an issue of the competence of a child witness the Court of Criminal Appeal (Lord Hewart, CJ Avory & Talbot JJ) held that the trial judge should not take the child out of court and examine that child in order to determine the competence of the witness.  The report of the decision is very brief and does not include any reasoning, but appears to have been a matter so obvious as to not require discussion that the procedure was so irregular that the conviction or to be quashed.  The decision was followed in R v Reynolds (above).  Both Reynolds and Dunne were in turn followed in R v David (1992) 95 Cr App R 256 in the Court of Appeal (Watkins LJ, MacPherson & Judge JJ).

23.Plainly, recorded evidence - including video recorded evidence - of events is a common feature of Hong Kong courts.

24.It is to be seen in video recordings of admissions against interest. Those are admissible upon the basis of being an exception to the rule against hearsay.  There is no statutory provision for such a course, but the exception to the hearsay rule, which permits the reception into evidence of admissions and confessions has been established for many hundreds of years.

25.Section 79C of the Criminal Procedure Ordinance permits evidence to be video recorded.  It identifies the class of persons who may be recorded and the class of persons who may do the recording.  If such a recording is made it can, with the permission of the Court, stand as the evidence-in-chief of the person recorded.  Section 79C is to be found in the context of Part IIIA of the Ordinance, which is concerned with the presentation of the evidence of those who are said to be the victim of certain sexual offences, the vulnerable, the mentally handicapped.  Part IIIA represents a recognition of the special difficulties of persons who are within these categories giving evidence.  It is to be noted that section 79C which permits video recording but does not permit it for the entire class of persons covered under Part IIIA but only a limited class.  Even if video recorded evidence taken under this section was to be permitted by the Court, it may only be so permitted if the accused is permitted to cross-examine the witness.  That can, of course, be done by live television link - which is permitted under Part IIIA. There are cogent policy reasons for the various forms of presentation of evidence of the class of persons covered by Part IIIA.  There are cogent policy reasons for permitting the video recorded out-of-court testimony of a person who comes within the scope of section 79C.

26.The policy which underlies the enactment of Part IIIB is to facilitate the taking of evidence from a witness in criminal proceedings where for good reason that witness cannot come to Hong Kong.  The ability to use technology to receive such evidence has the potential to enhance the ability of a Court of Hong Kong exercising criminal jurisdiction to do justice according to law.

27.Further, those representing the defence contended that it is no accident that the legislation in Part IIIB deals with a “live” television link.  It is contended that this is to be distinguished from the language which describes the process in Part IIIA.  I agree with this proposition although I am not sure it is necessarily decisive.  More persuasive is the argument that if the legislature had wanted video recording to be a feature of Part IIIB it could easily have said so.  I accept the argument that it cannot properly be said that the legislature overlooked such a course.

28.There are other statutory provisions in our law which permit recorded assertions of persons to stand as their evidence in criminal proceedings.  An obvious example of that is a statement tendered under section 65B of the Criminal Procedure Ordinance.  While that is not video recorded and must be a statement in writing, if a statement complies with the preconditions articulated in section 65B, and read in open court, it is taken as the evidence of the person who made the statement.  There are provisions for cross-examination.  If a party sought to tender the statement of a person in the absence of section 65B, even if such a statement happened to have all the characteristics required under section 65B, it would be inadmissible hearsay. That is because such a statement which is made outside Court would be tendered for the purpose of establishing the truth of what is asserted in the statement and is, thus, the purest hearsay.  Hence, the necessity for the statutory provision.  Strictly speaking, if a party to criminal proceedings recorded a video assertion of a person and wished to tender it as the testimony of a person, it would also be inadmissible hearsay.  That is what underlies the decision of the English Court of Appeal in R v Diane (above).  That would be true whether the person who was video recorded was in Hong Kong or elsewhere.  Indeed, that would be true in relation to the presentation of an out-of-court recording of a person in the absence of section 79C, even if as a matter of fact the person being recorded and the person conducting the recording complied in every respect with the requirements in section 79C.

29.Of course, video recordings of events which occur outside Court can be tendered as a species of real evidence.  That happens in Hong Kong with increasing frequency.  A recent example of that is to be seen in HKSAR v Wong Cho Shing & Ors [2019] 4 HKC 401, [2019] HKCA 839.  In that decision, the Court of Appeal restated and articulated the conditions for admissibility of such evidence.  These principles also apply to audio recording (see, for example, R v Maqsud Ali [1966] 1 QB 688; Butera v DPP (1987) 164 CLR 180, 30 A Crim R 417).  However, such recordings are concerned with a recording of the event, which is the subject of the charge or, is relevantly connected to the charge.  It is not a recording which can be used testimonially.

30.Part IIIA of the Criminal Procedure Ordinance in provisions other that section 79C also permits witnesses within the classes specified in that Part to testify by way of closed-circuit television. 

31.As to the inherent (or implied) power of the Court, it is impossible to define the full scope of this power.  In R v Moke & Lawrence [1996] 1 NZLR 263, the New Zealand Court of Appeal was faced with a case where the accused, who were the parents of the victims, were convicted of abuse of their children which was not of a sexual nature.  The amendments to the New Zealand law at the time of that decision were the approximate equivalent of Part IIIA and permitted children to give evidence by way of closed-circuit television, but did not cover the kind of offences which were the subject of the charges of which the accused were convicted in the Moke & Lawrence case.  On appeal, the complaint was that the trial judge was wrong to permit the use of closed-circuit television in such circumstances. The Court of Appeal (Cooke P, McKay & Thomas JJ) held that there could be no objection to a Court exercising its inherent power to permit testimony by way of closed-circuit television where the conduct and the victims and the concern which underlay the use of closed-circuit television was closely analogous to the existing legislation.  Giving the judgement of the Court, Thomas J observed:

“Indeed, it is both unwise and unnecessary to seek to define the scope of the Court's inherent jurisdiction. Broad principles governing its exercise is all that is required. The Court may invoke its inherent jurisdiction whenever the justice of the case so demands. It is a power which may be exercised even in respect of matters which are regulated by statute or by rules of Court providing, of course, that the exercise of the power does not contravene any statutory provision. The need to do justice is paramount.”

32.Thomas J considered the case of R v Accused (CA32/91) [1992] 1 NZLR 257; (1991) 7 CRNZ 230 and observed:

“The question in this case is whether the inherent jurisdiction should be exercised to admit evidential videotapes in circumstances which are parallel to those contemplated by Parliament in the Evidence Amendment Act and which would seemingly promote the very objective which Parliament had in mind in enacting that legislation. There is in this case no suggestion that the Court would be substituting another regime for a regime which Parliament had made dependent on the making of regulations (see Richardson J at p 267 [; p 241]), or that there is a statute which deals with the subject-matter of the evidence in issue (see Casey J at p 270 [; p 242]), or that the Court would be assuming a power that is not conferred upon it under a statute (because the regulation under it was not in force) and therefore lacked jurisdiction (see Hardie Boys J at p 272 [; p 246]). With respect to [counsel for the appellant], this Court need not feel constrained by that decision in exercising its inherent jurisdiction in this case if it is otherwise appropriate to do so.”

33.A decision of a Court which comprises Cooke P (as Lord Cooke of Thorndon then was) merits careful examination.  The underlying rationale of such legislation as was under consideration in R v Moke & Lawrence is, as a statement of the charge below quoted by Thomas J put it:

“The purpose behind this exception [evidence by way of a videotaped interview] to long-established principles is the desire of the Courts and the community to minimise the stress to young complainants in having to repeat their allegations in public and in particular before a jury comprised of total strangers. It has been recognized that if the allegations are true the child has already suffered. That suffering should not have to be made worse in order that the wrongdoer be brought to justice. In such cases the accused’s right to a fair trial is seen as being preserved by requiring the interview to conform with certain strict rules and having the complainant available for cross-examination either in the courtroom but screened from the accused or by the use of closed-circuit television during which the child can be seen by the jury and the Court but does not have to see more than the Judge and the counsel. Whether or not an accused feels that his right to confront his accuser is diminished by the procedure, Parliament in the wider interests of justice has seen fit to restrict that right and no-one can now complain. But whether that right should be further abrogated in the interests of young complainants generally or the pursuit of justice is a matter that must exercise the minds of the Courts and must not be treated lightly.”

34.In my opinion, that was the context and content of the analogy that the Court of Appeal of New Zealand saw between what was actually done in the case, the subject of appeal and the legislation.  Further, while nobody would dispute that adopting the course proposed by the prosecution in the instant case would promote convenience, the analogy between what is proposed and the course permitted in section 79C of the Criminal Procedure Ordinance and the policy reasons for it is not close.  Convenience might well be a factor under section 79C, but it is a long way down the scale of important reasons for the enactment of that section.  Accordingly, the invocation of the inherent jurisdiction of this Court does not assist the argument of the prosecution.

35.In my opinion, in order for the evidence of the overseas witnesses nominated by the prosecution to be admissible, the evidence must be presented by, as Part IIIB declares by “live” television link.  It follows that it would not be open to a Court to impose conditions on the reception of that evidence, which had the effect of enlarging the scope of the presentation of that evidence by way of video recording it and presenting such recording to the jury as the evidence.  Rule 6 of the Live Television Link (Witnesses outside Hong Kong) Rules gives examples of the kinds of things which might be conditions imposed by the Court.  It is not open to a Court to impose conditions on the exercise of a discretion, which have the effect of enlarging the jurisdiction of the Court. 

36.In my opinion, that is also true in relation to the concept of the Chief Judge of the High Court amending the rules to permit such a procedure.  That power comes from section 79L of the Criminal Procedure Ordinance.  Further, rules made by the Chief Judge of the High Court are subsidiary legislation within the meaning of the Interpretation and General Clauses Ordinance, Cap 1 (see section 3).  As such, any amendment to the rules would have to go through the procedure prescribed by section 34, which might not produce the required speed.  The Chief Judge can also give directions under section 79L.  Those appear as Practice Direction 9.9.

Determination

37.For these reasons, although I perfectly recognise the convenience of the course proposed by the prosecution, I decline to accede to that proposal.  I would, nevertheless, direct that the evidence taken pursuant to Part IIIB in this case be video recorded, but simply for the purpose of preserving the record of the Court.

38.I also recognise that it would be undesirable to have the evidence taken by live video link be interrupted by objections taken by counsel for one or other party during the examination of these witnesses. Of course, objections do arise which are unforeseen.  Those cannot be helped. However, to the extent that an objection to the testimony of these witnesses can be foreseen, I direct that the party that wishes to take such an objection notify the Court and the other parties 3 clear days before the witness gives his or her evidence by live television link.

Ms Charlotte Draycott SC, on fiat and Miss Ng Oi-lam Joycelyn SPP of the Department of Justice, for HKSAR

Mr Tim Owen QC leading Mr Tsoi Y M Benson, instructed by Boase Cohen & Collins, for the 1^st accused

Mr Cao Yuan-shan and Ms Chiu Betty instructed by Haldanes, for the 2^nd accused

Mr David A S Khosa, instructed by Hobson & Ma, for the 3^rd accused