HKSAR v. Ho Kwai Lam

HCCC 69/2022

[2023] HKCFI 541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 69 OF 2022

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REASONS FOR RULING

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Introduction

1.On 10 February 2023, we granted leave for the prosecution to adduce the expert reports of Sgt 6533 (PW114) and Sgt 3137 (PW131), saying that reasons would be given in due course. This, we now do.

2.HO Kwai Lam (“D33”) was charged with 46 others for one count of “conspiracy to commit subversion”[1]. As many of the defendants have already pleaded guilty, either at committal or before trial, there are 16 defendants remaining and D33 is one of those. The trial was scheduled to commence on 6 February 2023 with 90 working days reserved. The prosecution case, as can be seen from their written opening[2], relies to a large extent on posts or statements which what the prosecution say are attributed to the defendants and the alleged co‑conspirators in various Facebook webpages and YouTube footages.

3.The subject matters of the present application, as aforesaid, are four expert reports (in the form of witness statements), the first 3 of them[3] are prepared by PW114 and the last one[4] is prepared by PW131. They are about the operation or use of “Facebook”[5] and “YouTube”[6] respectively. It should be noted that although the case of D33 and the other defendants who had pleaded not guilty was committed to this court for trial on 1 June 2022, the prosecution only filed the aforesaid four reports by way of additional evidence (“AE”) close to or even on the first day of the trial.

4.Mr Beel’s grounds of objection (not shared by counsel for the other defendants and they take no part in the present application) are as follows:

(i)  D33 is inherently and ultimately irredeemably prejudiced by the intended calling of an expert witness.

(ii)  The prosecution have, without any apparent justification, flagrantly disregarded the provisions set down for the calling of expert evidence.

5.It is noteworthy that for the present purpose the grounds of objection are within a very narrow compass. First, they are not about the relevancy of the contents of the reports. Secondly, they are not about whether the opinions expressed in the reports are capable of forming the subject matters of expert evidence. Thirdly, they are not about whether PW114 and/or PW131 possess the relevant expertise. For the present purpose, the objections are based solely on the belated introduction of the expert reports and the prosecution’s non-compliance with the notice requirements as laid down in the relevant statutory provisions and practice directions which we would come to in due course.

6.Mr Man for the prosecution accepts that the prosecution have not complied with the notice requirements. However, he contends that the expert reports were obtained “as soon as practicable”. He explains that the prosecution had been expecting some sort of agreement by the defence. However, the expected agreement was in the event not forthcoming and therefore the prosecution see the need to obtain the expert reports in question. Mr Man submits, in any event, that D33 has suffered no prejudice.

Chronology

7.To put counsel submissions in context, the following chronology, which we gratefully adapt from the written submission of Mr Beel[7], is pertinent:

1 June 2022	Committal of D with others for trial in the High Court.
13 July 2022	Service of the paginated committal bundle on the defence.
26 October 2022	The prosecution CMQ saying that there was no expert witness at the time and they reserved the right to adduce expert evidence where appropriate.
8 - 9 November 2022	The prosecution made no indication at the CMH about their intention to rely on the expert evidence in question.
4 January 2023	The prosecution first indicated (in their PTR bundle) that they intended to call 1-2 expert witnesses on the use of Facebook and YouTube.
10 January 2023	D33 put the prosecution on notice that objection may be taken to the calling of expert witnesses.
11 January 2023	D33 gave notice in her PTR form that objection may be taken to the prosecution calling expert witnesses.
16 January 2023	The prosecution filed the 5th AE which included the first two reports of PW114 (in Chinese).
31 January 2023	The prosecution served the English translation of first two reports of PW114 on the defence.
3 February 2023	The prosecution served the 3rd report of PW114 (in Chinese) on the defence.
6 February 2023	The prosecution served the report of PW131 (with English translation) and the outstanding English translations of the other reports on the defence.

Relevant statutory provisions and practice directions

8.To start with, the Criminal Procedure Ordinance (“CPO”) (Cap 221) provides:

65DA. Notice of expert Evidence

(1) Following the committal of any person or the transfer of any charge or proceedings or action or matter for trial in the court, or the making of an order for the retrial of any person in the court, if any party to the proceedings proposes to adduce expert evidence (whether of fact or opinion) in the proceedings (otherwise than in relation to sentence) he shall as soon as practicable, unless in relation to the evidence in question he has already done:

(a) furnish the other party or parties with a statement in writing of any finding or opinion which he proposes to adduce by way of such evidence;

…

(5) A party who seeks to adduce expert evidence in any proceedings and who fails to comply with subsection (1) shall not adduce that evidence in those proceedings without the leave of the court. (Emphasis supplied)

9.In relation to expert evidence, Practice Direction 9.3[8] says:

(C) Expert evidence

5.3.8 If the prosecution intends to adduce expert evidence at trial, the expert report should, as far as possible, be filed with the court and served on the defence before committal is sought.

5.3.9 If no expert report has been filed at the committal stage and where expert evidence is intended to be adduced at trial, the parties should endeavour to adhere to the timeframe as set out in the Standard Procedural Timetable (Fixture List) for the filing and service of expert reports. Where there is genuine difficulty in complying with the timetable, the matter should immediately be brought to the attention of the Criminal Listing Judge, providing detailed reasons and the suggested revisions to the timetable. (Emphasis supplied)

10.Standard Procedural Timetable (Fixture List)[9] says:

E. Expert Evidence

E.1 Within 42 days after lodging the Paginated Committal Bundle, the prosecution shall file with the court and serve on the defence any expert report intended to be adduced at trial if such has not already been done.

E.2 Not less than 45 days before the trial, the defence shall file with the court and serve on the prosecution any expert report intended to be adduced at trial.

11.As can be expected, Practice Direction 9.3 provides for extension of time in case any party is unable to comply with the aforesaid timetable:

1.6 Extension of time

1.6.1 At any stage of the proceedings, where, because of the particular circumstances of the case, such as complexity, and despite every reasonable effort having been made, there is genuine difficulty in complying with the timelines set out in the applicable standard procedural timetable or any revised timetable, a party may apply to the Criminal Listing Judge for an extension of time. The application should be made once it is clear that the deadline(s) cannot be met.

1.6.2 The application must be made in writing, setting out all the grounds in support and, where applicable, attaching all the documents relied upon. If the application is by consent or is not opposed, the same should be stated in the written application.

1.6.3 The extension sought should be realistic and reasonable so as to avoid any application for further extensions.

12.As to the consequences in case of non-compliance, Practice Direction 9.3 stipulates:

2.4 Effect of non-compliance

2.4.1 Non-compliance with this Practice Direction, a case management direction or the procedural timetable is a serious matter, the court will not take it lightly. Depending on the actual circumstances, it may affect the conduct of the prosecution or the defence. It may have an impact on costs. The court may require the legal representative who is in default to appear in court to provide the reasons for the non-compliance. When the non-compliance involves failure, neglect or dereliction of duty on the part of the lawyer having conduct of the case, the court may refer the matter to the Department of Justice, the Director of Legal Aid and the relevant professional body for further action.

Submissions of the parties

13.Mr Beel submits that the prosecution from the outset of the proceedings know what their case is and the evidence upon which they rely in making their case. It is not for the prosecution to sit back and wait to see what matters are to be agreed or not agreed before they decide whether they require to call any expert evidence. Moreover, the prosecution are under an obligation to set out their case and the evidence upon which they rely at the earliest possible moment so that the defence are in a position to either agree that evidence or to challenge that evidence by preparing their defence case. This is particularly pertinent in relation to expert evidence so as to allow the defence to retain and obtain expert opinion on the prosecution's expert evidence and if necessary, call the said expert for the defence.

14.With his customary pragmatism, Mr Beel accepts that there would be cases where due to circumstances outside the control of a party to the proceedings expert evidence is served late and the Court in its discretion gives leave for the evidence to be adduced. However, he submits that this is not such a case. He further submits that D33 is not, in the time available, realistically in a position at this late stage to obtain an expert in the areas covered by the proposed expert.

15.Mr Man, on the other hand, informs that a number of accomplice witnesses would be called first, to be followed by a number of other witnesses. It is anticipated that the prosecution case alone would last for about 50 working days, so that PW114 and PW131 are not expected to be called until mid-April 2023. He submits that the expert evidence in question is not “complicated” and in all the circumstances the late service of the reports would not cause D33 any actual prejudice.

Consideration

16.In the exercise of the court’s discretion given under s65DA(5), CPO, we are of the view that the factors for consideration include (but not limited to) the following:

(i)  the extent of the delay;

(ii)  the reasons, if any, for the delay;

(iii)  the gravity of the alleged offence and the nature and significance of the expert evidence in question;

(iv)  the difficulties which the defence may encounter for engaging an appropriate expert and to obtain their own expert evidence in time;

(v)  the availability of the raw materials for the inspection of the defence expert;

(vi)  any prejudice which may cause to the defence; and

(vii)  the availability and sufficiency of remedial measures to ensure a fair trial, if leave is granted.

Cf HKSAR v Lee Chi Fai & Others [2003] 3 HKLRD 751.

17.With due respect, the explanation given by Mr Man for the tardiness in the preparation and service of the reports is neither good nor reasonable. The prosecution should have known from the outset that their case relies to a large extent on statements and video footages from Facebook and YouTube. It is also elementary that the prosecution should properly prepare their case on the basis that they may be put to strict proof, rather than expect any agreement from the defence to any part of the evidence.

18.On the other hand, from viewing the situation realistically, there would still be some time before the prosecution would call PW114 and PW131 to give evidence. Having regard to the nature and contents of the proposed expert evidence, this court is of the view there should still be sufficient time for D33 to consider those reports in question and, if need be, to obtain her own expert opinion. The charge which D33 faces is a very serious one and it is in the interest of justice that relevant evidence (whether for the prosecution or for defence) should be placed before the court and properly assessed.

19.With respect, Mr Beel’s submission that because of the nature of the allegation against D33, she may encounter difficulties in engaging a suitable local expert is speculative. In this regard, we note also that her legal team has received the first two reports of PW114 for more than 3 weeks and yet they have not even tried to obtain their own expert opinion.

20.Having looked at the matter in the round, we consider that despite the failure of the prosecution to obtain and serve the expert reports in question in a timely fashion, no irremediable prejudice would be caused to D33 and the fairness of the trial would not be affected, if leave were granted to the prosecution to adduce the same. This court is further of the view that any inconvenience caused to the defence as a result of the tardiness in the service expert reports in question could be sufficiently remedied by a short adjournment and/or a consequential costs order.

Conclusion

21.Based on the above, we grant leave for the prosecution to adduce the four expert reports under consideration. Needless to say, this does not mean that we accept at this stage the contents of the reports. Besides, the respective expertise of PW114 and PW131 and the weight of their evidence (if admissible) are matters to be canvassed.

Mr Jonathan Man, DDPP, Mr Anthony Chau, DDPP, Mr Andy Lo, ADPP (Ag), Ms Karen Ng, SPP and Ms Crystal Chan, SPP (Ag), of the Department of Justice, for HKSAR

Mr Trevor Beel and Ms Priscilla Lau instructed by Ip, Kwan & Co, Solicitors (assigned by Legal Aid Department), for the defendant (D33/A9)