HKSAR v. Ng Yan Kin

HCCC 329/2018

[2021] HKCFI 19

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 329 OF 2018

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Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 2 November 2020

Date of Ruling: 3 November 2020

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R U L I N G

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Introduction

1.This is an application by Mr Percy on behalf of the defendant, Ng Yan‑kin, who is charged with one count of Murder, in that it is alleged that he killed Li Sin‑heng on 16 September 2017, by stabbing her multiple times. He does not dispute that he killed Ms Li.  The defendant maintains that he was suffering from diminished responsibility at the time of the killing.  He has no memory of the immediate events surrounding her death. 

2.Mr Percy objects to handwritten notes (“the Notes”) made by the defendant, and currently identified as MFI/16, going before the jury as an exhibit.  He does not however object to reference being made to the contents of the Notes, either in chief or under cross‑examination.  His objection is simply that they should not be copied and placed before the jury. Mr Percy objects on that basis that:

(i)  The disclosure of the notes to Dr Wong Yee‑him, a psychiatrist and to Ms Felicia Lau, a clinical psychologist, was made inadvertently by the then defence instructing solicitors and without instructions so to do; and

(ii)  The prejudicial effect of the contents of the notes outweighs any probative value.

He therefore asks the Court to exercise its discretion not to allow the jury to have sight of the Notes even although they will have heard the contents.

3.In strictly procedural terms, this application is somewhat problematic as the Notes have been relied upon by Dr Wong and Ms Lau in their reports of 19 and 20 September 2019 respectively, which have been served upon the prosecution by the defence under section 65DA of the Criminal Procedure Ordinance, Cap 221.  As such they form the basis of their expert opinion.  The defence have served copies of the Notes upon the prosecution.  Ms Lau will be a defence expert witness.  Dr Wong has since been abandoned by the defence and has been called as a prosecution witness.  As expert witnesses, it should matter not for whom they are called as their overriding duty is to the Court.

Background

4.The notes are referred to by Dr Wong as item xii) of his report dated 19 September 2019 at page 2 and by Ms Lau as item 4 of her report dated 10 September 2019 at page 1.  The Notes were purportedly made by the defendant on or about February or March 2019, which was some five months after committal of this matter to the High Court, by which stage I assume the defendant was in possession of the committal bundle.  There should, therefore, be in existence an original of the Notes and a record on file of how and in what circumstances his instructing solicitors came to be in possession of them.  Discovery of that original and of any note as to how it came to be in possession of the solicitors has been problematic.  The chronology may become important to this application because it appears that the document provided to the prosecution during this trial, and upon which they wish to rely, has been edited.

5.In February/March 2019, the defendant was represented by Messrs Fan, Wong & Tso.  They had the handling of this matter during committal from July 2018 to 23 April 2019, at which time their services were dispensed with.  Mr Percy has at all times represented the defendant as counsel since 2018.  He informs the Court that he was provided with a translation of the documents by Fan, Wong & Tso but has never seen the original, which was presumably in the hands of his instructing solicitors as it was in Chinese.  Miss Li attended court on behalf of Fan, Wong & Tso to answer for their conduct in this matter.  She was not the handling solicitor.  That was her supervising partner Mr Daniel Wong.  She told the court that all relevant documents were sent to Tang, Lai & Leung when legal aid was re‑assigned to them on 23 April 2019 and that all originals would have been forwarded at that time.  Only copy documents remain in their hands, one of which is a photocopy of the Notes in edited form.  They do not have the original Notes and they do not possess a copy of the notes in unedited form.

6.On 23 April 2019, Messrs Tang, Lai & Leung took over as defence solicitors, also instructed by the Director of Legal Aid.  At this stage all relevant papers and files, according to Ms Li, should have been passed to this new firm of solicitors.  The Court has not been provided with any evidence as to when Dr Wong or Ms Lau were instructed.  Their respective reports post‑date the introduction of Messrs Tang, Lai & Leung but as the assessments took place upon the 12 and 26 July 2019 respectively, Dr Wong and Ms Lau may have received their bundles before or after the handover from Fan, Wong & Tso to Tang, Lai & Leung.  Nevertheless, the Court would expect these instructions to be upon any file raised by one or other solicitor and a copy of what was served to be attached.

7.The issue of exactly what was served upon Dr Wong and Ms Lau may become important as the document currently before the Court is a copy and is edited.  If this is the state of the document provided to Dr Wong and Ms Lau then it is to this document in its current form that the court must have regard.  If, however, the document which was disclosed was the unedited version, then it is to that document the Court must have regard.  The date of any such editing therefore falls to be considered.  Mr Percy submits that his client edited the document himself.  That begs the question as to when he did so and why he should have done so, if the basis of this current application is that there were no instructions for the onward transmission of the Notes beyond his legal representatives.  In any event, Mr Wong of Tang, Lai & Leung attended court to answer for his handling of the matter. He was the partner in charge.  He has no independent recollection of events but has confirmed that his firm no longer retains an original of the Notes and that, in accordance with normal practice, he would have expected to pass them on to Francis Kong & Co who took over from them on transfer of the legal aid certificate on 25 February 2020.

8.Ms Pannu of Francis Kong & Co attended court to answer for their handling of the matter.  She is not the partner in charge.  She maintains on behalf of Francis Kong & Co that they are not in possession of the original of the Notes either.  It is most unfortunate that when this matter was first raised some days ago that this firm of solicitors did not progress the query properly.  They made no effort to ascertain the whereabouts of the original document to the satisfaction of the court such that the court had, by its own direction to seek the attendance of other members of the law profession in order to ascertain the whereabouts of the original of this document.  The handling of this matter throughout does not appear to have been carried out in the professional manner to be expected of a member of the Law Society of Hong Kong.  The lack of specificity in handling client documents is most disturbing.  However, there is nothing more that can be done and the Court must proceed on the basis most favourable to the defendant, that the current edited copy document is the only one which was in the possession of the solicitors and therefore in the possession of the relevant expert witness.

The Prosecution Case

9.The prosecution wish to put the Notes before Dr Wong and reserve their right to put the Notes before Ms Lau and before the Defendant, should he choose to give evidence.  The prosecution maintain that the Notes are prima facie admissible as they provided information upon which the experts formed an opinion.  Mr Percy does not gainsay this.  Mr Lai on behalf of the prosecution submits this application is without merit as the majority of the contents of the Notes are already known to the parties and will be known to the jury as they have been referred to within the various reports. Moreover, he submits the Notes should not be distinguished from other materials relied upon in the expert reports before the jury including those where it has been agreed no witness will be called.  This is perhaps a step too far as clearly handwritten notes by the defendant himself as opposed to medical reports or tests, do stand in a category of their own.  They are akin to an interview by the police except that the defendant would not have had the benefit of being advised that he may remain silent.  This is not an issue raised or relied upon here by the defence and the Court has not been asked to consider it, albeit it is conscious of the distinct nature of these documents.

10.The prosecution argue that the Notes are both relevant and admissible.  Relevant because they show the different instructions given by the defendant to different expert witnesses at different times and that goes to credibility.  They are also relevant because they set the scene, according to the defendant, as to what occurred leading up to the killing even though he says he can give no evidence beyond his arrival in the taxi at the Island Resort Mall.  Lastly, it evidences his emotional state of mind in the preceding days.  It is against this background as a whole that the prosecution submits the jury should be allowed to assess the weight to be given to the opinion of Dr Ho as well as to those of Dr Wong and Ms Lau.

11.Perhaps the most cogent evidence put forward by Mr Lai is that the content of the whole document will be before the jury in any event as Mr Percy does not object to it being put to the relevant witnesses including his own client.  He accepts it is relevant and prima facie admissible.  The onus is therefore on him to show that either the prejudicial effect of the Notes being placed before the jury or the interest of justice require that I exercise my discretion to disallow that to be done.

Conclusion

12.If this evidence is relevant and admissible and it is accepted that the jury are entitled to listen to evidence and to attach what weight to it they consider appropriate in all the circumstances of the case, I find it wholly artificial to say to them that they are not entitled to have the document itself before them unless there is something which is actually prejudicial contained within it and which, in my discretion, I consider they should not see.  However, I have not been provided with any such evidence of prejudice by way of submission.  Indeed, Mr Percy concedes there is none.  He submits it is simply unfair for this document to be before the jury within the prosecution case when it should be before the jury as part of the defence case when the defendant can explain it to them.  That may be his preferred course but that argument provides no basis in law for the Court to exclude it.  It has been relied upon, it has been disclosed and it contains nothing which suggests any prejudice to the defendant.  Indeed, it appears on the face of it to be consistent with the general basis of his case.  The defendant accepts he made it and he accepts he edited it but according to Mr Percy he gave no instructions for it to be provided to the defence solicitors although I have heard no evidence on this point even though Mr Percy had the opportunity to raise it when the court required the relevant solicitors to attend and when two out of three firms of solicitors ignored that request and sent junior members of the firm without first‑hand experience of the handing of the documents.  That was a matter for the defence to raise and to establish on the evidence and they have not done so despite being provided with ample opportunity.

13.In all the circumstances, the prosecution may produce this document to Dr Wong and if proved, may have it exhibited and placed before the jury for ease of reference for them to understand the purport of what is being asked and, in due course, what the defendant says about it, if he chooses to give evidence, which of course he is not obliged to do.

14.The defence have leave to re-visit this application if it becomes appropriate in due course.

Mr Derek Lai SADPP and Mr Gary Leung SPP, of the Department of Justice, for HKSAR

Mr Duncan Percy and Ms Josephine Chiu, instructed by Francis Kong & Co, assigned by the Director of Legal Aid, for the defendant