HKSAR v. Hui Ka Lok, Sam
Read the full judgment text of HCCC 148/2020 on BabelCite. This High Court CFI judgment was delivered on 21 October 2021.
1. This is an application pre-arraignment to amend the indictment. In its original form and dated 6 July 2020, the indictment contained the following:
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HCCC 148/2020 [2021] HKCFI 3167 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 148 OF 2020 ________________________ BETWEEN
________________________ Before: Hon Campbell-Moffat J in Court Date of Hearing: 21 October 2021 Date of Ruling: 21 October 2021 ________________________ R U L I N G ________________________ 1.This is an application pre-arraignment to amend the indictment. In its original form and dated 6 July 2020, the indictment contained the following:
It is sought to be amended as now shown in red:
2.There is no objection to that amendment by the defendant as to either count. Count Two 3.As to Count Two however, the Court has raised of its own motion whether the Second Count should be tried jointly with the First Count as it relates to matters post-offence and appears to be highly prejudicial to the defendant if heard by the same jury. Mr Turnbull submits that is properly indicted as it relates to the events which are the subject of Count One. He submits the situation is akin to evidence of Flight or Lies, which often occur post event but which are admissible as against a defendant in trial. 4.I have real concerns about the prejudicial effect upon proceedings of the matters raised under Count Two. The prosecution alleges that the defendant, whilst on remand, sought to pervert the course of justice by having PW1 exonerate him, or at least, lessen the role he played and therefore his culpability. That case is premised upon the basis that he had indeed taken part in the events under Count One in the manner suggested by the prosecution as opposed to merely seeking to have PW1 tell the ‘truth’ about his participation in line with the defendant’s own case. It would have the effect of saying to the jury that they can be sure that he is guilty of Count One because they can look to what he did subsequently when he tried to escape liability by asking PW1 to exonerate him. That is evidence of a guilty mind. 5.Count One is a very serious offence for which the defendant is looking at a sentence well in excess of 30 years’ imprisonment after trial. In my view, the addition of Count Two, which occurred after this offending and was not part of the offending itself, prejudices the defendant in meeting the case against him under Count One. It also complicates the trial and lengthens it, as it will be contested and has its own evidential difficulties. If the defendant were to be tried on Count One alone and were to be acquitted of Count One, then there is the possibility that it would not be proper to proceed on Count Two in a separate trial. Indeed, even if the defendant were to be found guilty of Count One, the Court wonders whether the prosecution would proceed on a trial for Count Two in a separate trial, in the face of the inevitable heavy sentence which the defendant will receive on conviction after trial for Count One. Conclusion 6.The evidence to support Count Two is highly prejudicial. There is a risk that a jury, even one properly directed, could use that evidence to support their determination on Count One, which is a very serious offence. In all the circumstances of this case, I order that Count Two is to be severed from the Indictment and to be tried separately after the trial under Count One.
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 |
Cases cited in this judgment
Further hearings and rulings under HCCC 148/2020