HKSAR v. Toerab Mohamedajoeb and Others

HCCC 411/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 411 OF 2009

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BETWEEN

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Before: Hon Wright J in Court

Date of Hearing: 28 July 2010

Date of Ruling: 28 July 2010

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R U L I N G

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Ruling regarding cross-examination of DPC34311.

1.The indictment in these proceedings alleges a joint enterprise between three accused, relating to the commission of a single offence of trafficking in dangerous drugs.  The first and second accused are husband and wife.  The first accused has pleaded guilty to the offence.  The prosecution does not intend to call him as a witness in its case.

2.Subsequent to an early indication by the first accused that he intended to enter a plea of guilty, but before actually doing so, he made a statement to the police.  This is in a form commonly referred to as a ‘non‑prejudicial statement’.

3.The three accused arrived by air on the same flight from Surinam, via the Netherlands.  They were observed after passing through immigration and customs clearance in Hong Kong.  Each was in possession of a suitcase.  When the cases were loaded or were being loaded into the boot of a taxi the accused were intercepted.  In the suitcases checked in for the flights in the names of each of the first and second accused were found secret compartments containing drugs which form the subject matter of the offence. Nothing unlawful was found in possession of the third accused.

4.At issue at this stage is whether Ms. Crebbin, on behalf of the second accused, is entitled to cross-examine an upcoming witness, Detective Constable 34311, as to what was said by the first accused in the course of making what she describes as a "confession" statement concerning, firstly, his role in the commission of the offence and, secondly, the state of knowledge of the second defendant, who is his wife.

5.Mr. Hemmings, who appears on behalf of the third accused, expresses his reservations about this course being followed inasmuch as it may tend to enhance the credibility of the second accused, who in an earlier out-of-court statement, has incriminated the third accused.

6.Mr. Shiu, on behalf of the prosecution, objects.

7.Ms Crebbin relies, as a starting point for her argument, on the decision of the House of Lords in R v Myers [1998] AC 124, a matter in which one of two unrelated co-accused, who were subsequently tried jointly, whilst in police custody "... during general conversation with police officers and without being cautioned, stated that although she did stab the driver they only wanted to rob him and did not mean to kill him and she was the one who had the knife and used it".

8.At 136E Lord Slynn of Hadley said:

"In my opinion a defendant should also be allowed to put a co‑defendant’s confession to witnesses to whom the confession was made so long as the confession is relevant to the defendant’s defence and so long as it appears that the confession was not obtained in a manner which would have made it inadmissible.... There may be doubt as to whether the co-defendant will be called (so that it may not be possible to put the confession to the co-defendant directly) and not to allow the defendant to introduce it by way of cross-examination of prosecution witnesses could lead to greater fairness."

and at 137D:

"Indeed so long as it is relevant to establish his defence or to undermine the prosecution case against him a defendant should in my view be allowed to cross-examine a co-defendant as to his confession which goes to the facts in issue rather than only to the credibility of the maker of the statement. He should no less be allowed to cross-examine the person to whom this statement is made as to the terms of the confession even though, since the co‑defendant has not given evidence, the question of credibility has not arisen."

9.At 142A Lord Hope of Craighead, when contrasting the factual situation in Myers with that earlier decision in R v Blastland [1986] AC 41 observed:

“The situation in the present case is however not the same as that in R v Blastland. Statements which counsel for the appellant's co-defendant was allowed to lead in evidence from the police witnesses were statements by his co-defendant, not by a person who could properly be described as a third party because he was not a party to the trial. There was no other way of eliciting this evidence because the maker of the statements was not a compellable witness for the co-defendant. ...”

and in summarising the reasons are commonly given for admitting evidence of this nature in Scotland noted at 143D:

"... Fourth, the evidence of those to whom the statement was made or heard it being made is the best evidence of the fact that the statement was made, as the person who made it is not a compellable witness at his own trial...."

10.Each of these passages makes it clear that the underlying rationale for allowing the cross-examination of the person to whom the confession was made was that the maker of the confession was not a compellable witness.

11.This was the view taken by the English Court of Appeal in a judgment delivered by Kennedy LJ in the subsequent decision of R v Lawless and Another [2003] EWCA Crim 271 who said at §13:

"So clearly if the evidence is to be admitted it is critical that the person alleged to have spoken is a co-defendant, and justification for admitting the evidence seems to be that otherwise there is no other way to elicit it.”

12.In HKSAR v AU Yuen Mei [2004] 4 HKC 130 Deputy Judge McMahon, allowed a defence application to cross-examine police witnesses concerning claims that after his arrest "...the husband of the present defendant who was at one stage a co-defendant in this trial..." had said at various times words "to the effect that the present defendant, his wife, had nothing to do with the drugs later found in a flat and had been forced by him to carry the drugs found on her person".

13.The judge rightly recognised that:

"... what the House of Lords judgment in Myers has done is go beyond the right of allowing one co-defendant to cross-examine another defendant on the confession of that other defendant and has allowed a co-defendant to cross-examine police officers to whom that other defendant’s confession was made.

The underlying basis of that extension to the exception to the rule of hearsay in allowing the producing evidence of confessional statements must be so as to avoid procedural unfairness. As Lord Slynn says: "Not to allow the defendant to introduce it by way of cross-examination of prosecution witnesses, could lead to great fairness.

With that, I agree. It seems to me to be quite wrong that procedural chance could determine whether or not a defendant could rely upon another co-defendant's confession or not. That procedural chance may be the fact that that co-defendant who made the confessional statement would not give evidence, which was what Lord Slynn had in mind when he gave his judgement.."

14.He added:

"I take from Myers this simple proposition: that once the defendant is a co-defendant in a trial, then procedural chance as to whether or not he, in fact, gives evidence should not determine whether a court allows cross-examination to take place as to what he has said as an admission on the prior occasion."

15.His decision was rightly described by the judge himself as "... going somewhat beyond the law as it exists and is set out in Myers case... ", which attracted the observation in the Report on Hearsay Criminal Proceedings, of the Law Reform Commission of Hong Kong, November 2009, at §4.28:

"In Hong Kong, there is at least one reported case in which injustice akin to that seen in Blastland, Sparks and Schwartz almost resulted. In HKSAR v AU Yuen Mei the accused and her husband were charged with drug trafficking offences. On arraignment, the husband pleaded guilty. At the accused’s trial, the court had to consider whether the husband’s statement admitting to forcing the accused to carry the drugs was admissible. The court ultimately admitted the statement by extending the principle set down in R v Myers. It remains to be seen if the decision will be upheld by higher authority but clearly the court was trying to avoid an injustice wrought by the inflexible hearsay rule."

16.Ms Crebbin also sought to rely upon the decision of the Court of Appeal in HKSAR v Lee Kwan Kong and Others CACC 198/2004.  That decision does nothing to assist the argument because, as the Court of Appeal recognised at §62:

"In the present case, of course, unlike the position in Myers, D1 and D3's respective confessions had been admitted in evidence and, for the purposes of advancing a defence that her guilt extended only as far as the assault she was prepared to admit, D2 was entitled to rely upon D1 and D3's confessions...".

17.The Court went on to reiterate the well established principle that a confession is evidence against only the maker of the confession but that the jury is entitled to take into account in favour of one accused what has been said in the course of a confession by a co-accused.

18.The situation in the instant matter is, however, quite different from those above.  The first accused has pleaded guilty to the charge upon which the second and third accused are now being tried: that is a fact which is known to the jury by way of admitted facts.  The effect of his plea is that he is presently a competent and compellable witness at the instance of the second accused.  This is so by virtue of the provisions of s.57(1) and (2) as read with ss.(5) and (6) of the Criminal Procedural Ordinance, Cap. 221.

19.Consequently, the procedural chance contemplated in AU Yuen Mei does not arise in the present matter: whether or not to call the first accused lies fully in the hands of the second accused.  There is thus neither unfairness nor injustice occasioned to the second accused by disallowing this cross-examination.

20.Two further issues, raised by Mr. Shiu, require brief comment.  Firstly, the submission was made that the first accused is no longer a "co‑accused" but rather a third party in the sense used in Blastland. With respect, I disagree.  All three accused appeared jointly charged on a single indictment which alleged a joint-venture between them to commit a criminal offence.  Although, semantically, the first accused is no longer a person accused of a crime but, rather, a person convicted of a crime I am satisfied that he remains a co-accused in the sense in which that expression is generally used.

21.Secondly, it was submitted that the statement made by the first accused was not a confession as such as it could not be used against the first accused given its status as a "non-prejudicial statement”.  I have had the opportunity, with the consent of counsel, to read the statement.  I note that there appears to be a material conflict between the first two paragraphs which renders unclear the status of that document : the first paragraph contains a warning by the statement taker, Detective Constable 34311, to the effect that it is not for him to decide whether the first accused would become a prosecution witness but it is a matter for the Director of Public Prosecutions, and concludes with the words "I warn you, however, that your proposal may not be accepted and that anything you say may be given in evidence if the charge against you is pursued", whereas the second paragraph, which appears to emanate from the first accused indicating he wishes to give information to the police and for the statement to be considered by the Department of Justice, concludes "I understand that what I say in this statement will not be used as evidence against me in any subsequent criminal proceedings unless it is later found to be intentionally false or misleading".

22.I accept that what the first accused says in that statement is relevant to the defence of the second accused.

23.In that statement the first accused clearly and unequivocally admits his guilt in regard to the offence charged.  I do not see how what he said sensibly can be regarded as anything other than a confession. There is no suggestion that it was not made voluntarily by the first accused; indeed, everything points to the contrary.  However, in the light of my decision it is unnecessary for me to decide in the context of this case whether the understanding expressed by the first accused in the statement itself as to the use to which it might be put affects its availability to a co-accused as support for that co-accused’s case.

24.There appears to me, therefore, to be no proper basis for allowing cross-examination of Detective Constable 34311 as to what he was told by the first accused under the rubric of being an exception to the hearsay rule when it is open to the second defendant to call the first accused as a witness.

Mr Gavin SHIU, SADPP, for Prosecution

Ms Diane Crebbin, instructed by Messrs Knight & Ho, assigned by DLA, for the 2^nd Accused

Mr John Hemmings, instructed by Messrs Krishnan & Tsang, assigned by DLA, for the 3^rd Accused