HKSAR v. Hui Ka Lok, Sam

HCCC 148/2020

[2021] HKCFI 3173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 148 OF 2020

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BETWEEN

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Before:  Hon Campbell-Moffat J in Court

Date of Hearing:  21 October 2021

Date of Ruling:  22 October 2021

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R U L I N G

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1.This is an application by Mr Boyton on behalf of the defendant whereby he seeks to prevent the prosecution opening certain parts of its case which are prima facie hearsay. It is common ground that where the defence object to certain parts of the evidence, the usual practice is that no reference should be made of that evidence in Opening. That allows for any issue as to admissibility to be dealt with as and when the matter arises in trial and avoids the possibility of the jury being discharged. If, however, the Opening speech cannot be made coherently without reference to the disputed evidence, the Court may determine its admissibility as a preliminary issue. Whether or not it chooses to do so will turn upon the facts of the case and issues to be raised.

2.The evidence to which Mr Boyton objects and seeks to have rendered inadmissible arises from the witness statements of OCHOA VILLEGAS Luis Carlos, PW1 in the Committal Bundle (“PW1”), who is a co-defendant in these proceedings and who has pleaded guilty under HCCC 68/2020.  He, and another co-defendant, await sentence after the trial of the defendant.  In particular, Mr Boyton objects to references made by PW1 as to what was said to him by two categories of persons.  The first being parties alleged to be part of the joint enterprise and the second being his wife and daughter. These statements he says are clearly hearsay.  They include allegations that a group of four people, including the defendant, went to Columbia in April 2018, to set up the drug operation.  In support of that evidence the prosecution seek to adduce the defendant’s travel record, which shows him leaving Hong Kong on 6 April 2018 and returning on 17 April 2018.  His destination is unknown.

3.Mr Turnbull accepts that the evidence to which Mr Boyton objects is prima facie hearsay.  However, he maintains that this is an allegation of a joint enterprise to which the defendant attached himself at a very early stage.  PW1 was also a party to that joint enterprise and as such the prosecution are, firstly, allowed to adduce percipient evidence of the part that PW1 played which would include PW1 travelling to Hong Kong and meeting up with the defendant and his subsequent travel to China with his wife to meet John Andres Gomez Henad also known as ‘Mono’.  Anything which he said or did in furtherance of the joint enterprise would be admissible as against the defendant so long as there was independent evidence of his involvement in the enterprise.  This, Mr Turnbull says, includes what was said between PW1 and any other party to the enterprise including Mono.  Any conversation PW1 had with Mono after the enterprise is entered into and during its operation would be admissible against the defendant.  It was in China that Mono explained the role of the defendant.  Mr Turnbull says this conversation represents ongoing communication between the parties to update the common enterprise; explain individual roles and to progress their common purpose.  That falls both to be part of the res gestae of the case but also is an exception to the hearsay rule as being acts and declarations in furtherance of the common enterprise.  As a result of what he was instructed to do by Mono whilst in China, PW1 met up with Sam again in Hong Kong.  He can identify Sam and say that the Sam he identifies is whom he believed to be identified as Sam by Mono.  He is entitled to say that he understood from Mono that it was Sam’s role to help him purchase the appropriate tools for the job and that the Sam who is in the dock, did just that.  Mr Turnbull also submits that he is entitled to describe what Mono said about the role played by Sam at an earlier stage in the setting up of the importation of the drugs.  He submits that is necessary background for PW1 to know in order to be able to trust Sam in Hong Kong and to understand what can be expected of him i.e. for Sam to know where the drugs were hidden.  PW1 can give percipient evidence that Sam knew the purpose for which the tools were to be purchased and that Sam paid for those tools.  Mono is a named party to the joint enterprise.  The acts and declarations of parties to a joint enterprise are admissible against other parties to a joint enterprise so long as there is independent evidence of that enterprise and of the defendant’s participation in it.  Therefore, the prosecution may adduce the evidence of what was said by Mono to establish the defendant’s bonafides within the scheme including that Sam had gone to Columbia to arrange the importation of drugs to Hong Kong and had met with Mono in Columbia.  Mono was a percipient witness as to that meeting and what was said.

4.In support of that Mr Turnbull relies upon the independent evidence of the existence of the joint enterprise and what he says will be an irresistible inference that the defendant was a party to it when taking into account the CCTV footage of all three defendants inside the warehouse at a time immediately before PW1 was using specialist equipment to open the welded container doors.  As for the travel history of the defendant, that is circumstantial evidence from which an inference may be drawn.

5.Mr Turnbull takes this argument one stage further and suggests that the evidence against Li Ka-kuen, who is also named upon the indictment, which comes from PW1’s wife and is prima facie hearsay, also falls under the acts and declarations exception, because the prosecution allege that she too played a role.  There is no independent evidence that is the case although she was present during the Hong Kong and China visits.  It is unlikely that PW1 will implicate his wife.  So far as this evidence is concerned it may become admissible as the evidence is heard or it may not, but it would not be appropriate for Mr Turnbull to mention it in Opening and he has conceded that he will not do so.

The Law

6.The issue before the Court is the admissibility of conversations between members of a joint enterprise in the absence of the defendant where that conversation includes not simply acts and declarations in furtherance of a joint enterprise but also reference to historical events or narrative.  In R v Jones & Others [1997] 2 Cr App R 119, Counsel for the appellant Barham[1], objected to the admissibility of telephone records of conversations between other parties which referred directly or indirectly to the appellant.  It was accepted that where defendants are jointly charged with a substantive offence, hearsay evidence may be admissible if there is prima facie evidence of the common purpose and that evidence of what was said in the absence of a defendant may be admissible if what was said was in furtherance of the common purpose.  But it was submitted, as it is here, that whilst evidence by way of instructions to take some further step in the enterprise would be admissible but evidence referring to what had already been done would not.

7.This is the issue at hand.  The Court in Jones supra relied upon Dixon CJ in Tripodi v R (1961)  104 CLR 1 where it was said[2]:

“From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts.”

That passage was cited with approval in R v Gray [1995] 2 Cr App Rep 100 and was accepted in Jones supra as correct in law.  The issue was whether the words spoken and sought to be relied upon were more that narrative and could be regarded as words spoken in pursuit of and for the purpose of advancing the common enterprise.  That is clearly the test here but it is helpful to consider the way the court in Jones applied that test.  The prosecution relied upon the disputed conversations to suggest that, taken as a whole, reference to past events or to comment are of no consequence because the whole of the conversation was required in order to advance the common purpose.

8.There were five conversations relied upon in Jones which were the subject of dispute[3].  It can be seen that these cover a number of scenarios.  They include references to events where there is no mention of the defendant; events which form part of the greater res gestae and narrative as to events to inform and keep participants update, all of which relate to other evidence before the Court.

9.In this case, the prosecution wish to rely upon what was alleged to be said by Mono to PW1 whilst in China and, I suspect, during telephone and other communications to the effect that the defendant had been part of a group who went to Columbia in April 2018 to purchase drugs and to arrange the onward transportation of those drugs to Hong Kong.  There is independent evidence from a number of sources of the involvement of the defendant in this common enterprise.  The acts and declarations relied upon in respect of the conversations with Mono fall within the various categories identified in Jones supra.

Conclusion

10.Having heard both parties on this preliminary issue, as it currently stands the evidence which falls to be given under an exception to the rule against hearsay as acts or declarations in furtherance of a common design may be relied upon in Opening and may be proven in evidence in trial subject to the prosecution being able to do so in the normal way.

11.The evidence in respect of Li Ka-kuen, may not be relied upon in Opening.  If the prosecution establish that they can render it admissible in the manner suggested, then it can be raised again at the appropriate time during the trial.

Mr Richard Turnbull, counsel on fiat, for HKSAR

Mr David Boyton, instructed by Y.K. Lau & Chu, assigned by Director of Legal Aid, and Ms Kirsteen Lau, instructed by Y.K. Lau & Chu, on pro bono basis, for the defendant