HKSAR v. Lam Tsz Ho

HCCC 26/2020

[2021] HKCFI 1573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

CRIMINAL CASE NO 26 OF 2020

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Before: Hon Wong J in Court

Date of Hearing: 25 May 2021

Date of Ruling: 28 May 2021

Date of Reasons for Ruling: 8 June 2021

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R E A S O N S    F O R    R U L I N G

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1.The prosecution intends to adduce evidence in relation to certain phone messages, including text messages, photos and audio recordings found in two of the mobile phones seized from the defendant. Transcripts have been prepared for these phone messages and the content is reduced into 4 tables.

2.The 4 tables set out the followings:

(1) Phone messages in the defendant’s Huawei mobile phone (exhibit P38) allegedly between the defendant and the boss;

(2) Phone messages in the defendant’s iPhone (exhibit P36) allegedly between the defendant and the boss;

(3) Phone messages in the defendant’s same iPhone allegedly between the defendant and a man called Sai Shing; and

(4) Phone messages in the defendant’s same iPhone allegedly between the defendant and a man called Chu Michael.

3.The defence objected to admissibility of this nature of evidence, on the following grounds:

(1) The messages contain hearsay; and

(2) The evidence is in any case not relevant to the case.

4.Counsel for the Defence, Mr Richard Wong, set out his argument in a written submission supplemented by oral submission at the hearing.

5.I made the ruling as set out in paragraph 33 below.  These are the reasons for my ruling.

PRELIMINARY OBSERVATIONS

6.Some of these phones messages had been referred to during the video recorded interview which the defendant attended. Admissibility of the video recorded interview was challenged and upon a voir dire the evidence was ruled admissible.

7.Save for the messages which the defendant admitted, in the video recorded interview, were between himself and the boss, there is no direct evidence as to who were the parties in the exchange of messages.  Without the evidence as stated, the prosecution is to ask the jury to decide whether they can draw the inference that the messages were sent by the defendant in the light that the messages were saved in the phones found on his person.

ARE THE PHONE MESSAGES RELEVANT?

8.I have considered the issue of relevance first because if the evidence is not relevant, there is no basis to adduce the evidence.

Table 1: Phone messages in the Huawei phone allegedly between the defendant and the boss

9.Counsel for the Prosecution, Mr Raffell, said that the core of the prosecution case was, as the defendant mentioned in his cautioned statements, that he had been asked by a man whom he called boss to collect the item for a promised reward.  Mr Raffell pointed out that the defendant had admitted in the video recorded interview that this group of phone messages were made between himself and the boss and were related to the collection of the parcel from the post office.  Besides, one of the messages contained a photograph of a deposit slip of paying $1,000 into the bank account of the defendant.  He submitted that the messages were supportive, inter alia, of the following matters and therefore was relevant:

(1) the existence of a boss;

(2) providing of a photograph of the identity card of the consignee of the parcel (11:24:58 on 4 December 2018);

(3) providing of the parcel tracking number (13:49:55 and 13:54:16 on 5 December 2018); and

(4) payment for part of the reward.

10.Having considered submission from the defence, I was satisfied that the phone messages as set out in Table 1 were relevant.  They are clearly related to the collection of the parcel in the present case.  Indeed, the defendant admitted in his cautioned statement that these messages were related to this matter.

11.My only concern was the photographs of the identity card of Cheung Tsz Hin and a bank statement (message at 10:05:51 on 1 December 2018) not of the defendant.  There is no evidence as to who Cheung is.  Mr Raffell said the prosecution was to ask the jury to find that the defendant had been trying to recruit Cheung to involve in the present case.  He also drew my attention to some parts of the other phone messages which he said goes to support this assertion.  In my judgment, the connection of these two photographs with the present case is too thin and the prosecution failed to satisfy me that these two photographs are relevant to the case.

Table 2: Phone messages in the iPhone allegedly between the defendant and the boss

12.This group of messages was saved in the phone itself.  The defendant did not say anything directly in relation to this phone in any of the interviews.  Mr Raffell said this group of messages is relevant as judging from the timing and the content what said in the messages were in relation to the present case.

13.One of the submissions of Mr Wong was that there was insufficient evidence to prove that one of the persons involved in this group of messages was the defendant.  In this regard, as the messages were saved in the phone found on the defendant, I was of the view that there was sufficient evidence to leave the issue to the jury to decide.

14.I noted that in one of the messages (12:01:36 on 3 December 2018), which was sent out from this phone, the bank account number of the defendant was mentioned.  It is also noted that a message sent to this phone contains a photograph of the same deposit slip as set out in Table 1 (11:58:02 on 4 December 2018). It was also noted that the telephone number of the party sending messages to this phone was the same number of the party sending messages to the Huawei phone, and the number was, as admitted by the defendant in the video recorded interview, that of the Boss.

15.As far as relevance of this group of messages is concerned, I was satisfied that it has been established.  Whether the prosecution can prove that the defendant was a party to the messages is a matter for the jury, so is the weight of this piece of evidence.

Table 3: Phone messages in the iPhone allegedly between the defendant and Sai Shing

16.As regards this group of messages, it was the contention of Mr Raffell that the content was related to going to the post office and something which is capable of being understood as monetary reward, therefore it was relevant to the assessment of the truthfulness and reliability of what the defendant said in his statements.  Besides, in a message from the phone (1:50:45 on 3 December 2018) the telephone number of the consignee as stated in the airway bill was mentioned.  I was also asked to take into account that this group of messages took place on 3 December 2018, which was within the time between the parcel was located and the time when the defendant came to collect it.

17.On the other hand, Mr Wong stressed that when the defendant was interviewed, he had never been asked about this group of messages.  He also submitted that mentioning of the telephone number of the consignee is not sufficient to establish the connection with the case.

18.In my judgment, the connection of this group of messages with the present case was flimsy and was not sufficient to establish its relevance to the case.

Table 4: Phone messages in the iPhone allegedly between the defendant and Chu Michael

19.In some of the messages sent from the phone, sending the identity card and address proof, as well as some slangs which an expert said are in relation to dangerous drug were also mentioned.  Based on these Mr Raffell submitted that relevance was established and said the prosecution would ask the jury to consider and decide whether Chu Michael was a person whom the defendant was recruiting to participate in the same exercise.

20.On the other hand, Mr Wong pointed out that the initial messages seemed to be talking about a fight which has no connection with the present case.  He also pointed out that some parts of the messages seemed to be talking about taking drug to the mainland and this casts doubt as to whether the two persons were talking about the present case.

21.Whilst I appreciated the points mentioned by the prosecution, I was not satisfied that there was sufficient connection of this group of messages with the present case.  I also noted that in the video recorded interview, the defendant had been asked about Chu Michael.  Apart from saying that Chu had nothing to do with the case, the defendant declined to answer any other question relating to Chu.

22.Even if, in the light of the opinion of an expert on certain expression, I were to accept for a moment that the messages might be related to dangerous drug, I shared the observation of Mr Wong that it was doubtful whether the two persons were talking about the present case.

23.I was not satisfied that there was sufficient connection between this group of messages with the case and I found the prosecution failed to establish its relevance to the case.

PREJUDICIAL EFFECT

24.Even though this issue had not been expressly stressed by the defence, I had concern in relation to the phone messages allegedly between the defendant and Chu Michael.

25.The prosecution is going to rely on expert opinion in asking the jury to find that the messages concern trafficking in dangerous drug.  Whilst this might go some way to establish relevance, I was wary of the risk that the jury might form the impression that the defendant had been connected generally with dangerous drug in a situation where there was no clear link of this communication with the present case save for the proximity in time.  My assessment was that the prejudicial effect of this piece of evidence outweighed any probative effect it might have.

26.Therefore, even if this group of messages is relevant, in my judgment, discretion should be exercised to exclude it.

27.I had the same concern for the group of messages allegedly between the defendant and Sai Shing, though to a lesser degree.  As the connection between the messages and the case is flimsy, there is a chance that the messages were not in relation to the present case.  As such, risk of similar prejudicial effect would exist.

28.I did not find the phone messages in Tables 1 and 2 caused me any concern about possible prejudicial effect.

DO THE MESSAGES CONTAIN HEARSAY?

29.As regards whether the content of the phone messages is hearsay, it depends on the purpose of adducing the evidence.  In my judgment, there was an element of implied assertion, insofar as the existence of a boss and monetary reward were concerned.

30.However, I did not consider the evidence not admissible on the ground of hearsay.

31.If the message was from the defendant, in my view it was not hearsay.  In any case, it was accepted by Mr Wong that if it was hearsay it fell within the established exception.

32.As regards the message from the other party, in my judgment, if the purpose is confined to letting the jury know something had been said to the defendant and what was the response of the defendant, adducing of the evidence is not objectionable.

CONCLUSION

33.For these reasons, I ruled that:

(1) The phone messages set out in Table 1 are admissible save for the two photographs shown as items 1 and 2;

(2) The phone messages set out in Table 2 are admissible; and

(3) The phone messages set out in Tables 3 and 4 are not admissible.

Mr Wong Tat Wah Richard, instructed by CMK Lawyers, assigned by Director of Legal Aid, for the defendant

Mr Raffell, Andrew J, counsel on-fiat, for HKSAR