HKSAR v. Nguyen Anh Nga

HCCC 110/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 110 OF 2012

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Before: Hon Barnes J in Court

Dates of Hearing: 4 October 2012

Date of Ruling: 9 October 2012

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R U L I N G

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1.The issue I have to decide is whether the various chops on the defendant’s passport, which, on the face of it, were affixed by the officials of various countries in Africa when the said passport was presented for immigration clearance purpose, was admissible in this trial.

2.Mr Philip Ross for the defence objected to the admissibility of these chops on the basis that they are hearsay evidence if the prosecution seeks to rely on the truth of what these chops stated.  The defence also submitted that they do not comply with the requirements under section 22 of the Evidence Ordinance, Cap 8 (“the Ordinance”) for them to be admissible.  The chops cannot speak for themselves so either the officials who had affixed them or an official from the relevant embassy should be called to give evidence in order to prove that the contents of those chops are true.  Mr Ross also submitted that even if these chops were admissible, the prejudicial effect would outweigh the probative value as the jury might use the presence of these chops to infer that the defendant was a drug‑courier.

3.Ms Campbell‑Moffet for the prosecution made it clear that the prosecution does not rely on the truth of what these chops stated.  The prosecution relies on the common law position, as propounded in the case R v Rice [1963] 2 WLR 585 (which concerned a used air ticket), and confirmed by the Court of Final Appeal in Secretary for Justice v Lui Kin Hong Jerry [2000] 1 HKC 95, that the defendant’s passport was a piece of real admissible evidence; and that the relevance of these chops was that, as the defendant was the passport holder, it could be inferred that she was the one who had proffered the passport to the officials who had affixed the chops—when one used logic and common knowledge.

4.Apart from relying on the common law position, Ms Campbell‑Moffet also relied on section 22 of the Ordinance.  She submitted that the defendant’s passport is a public document and the court could take judicial notice that it was a document which forms part of a record compiled by a person acting under a duty.  It is not reasonably practicable to ask all these officials to come give evidence, she submitted.

5.Ms Campbell‑Moffet informed me that she only wanted to have these chops admitted in evidence in case she wishes to cross‑examine the defendant on them, should the defendant elects to give evidence.

6.Mr Ross in reply said that by asking the jury to infer that the defendant was the one who had proffered the passport to the officials at the various countries would in effect amount to relying on the truth of what those chops stated. Further, should the defendant decides to give evidence, the prosecution will have good grounds to ask for leave to adduce rebuttal evidence.

7.Mr Ross referred me to another Court of Final Appeal case of Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, where the Court of Final Appeal held that the form and contents of a document might be used to draw relevant inferences, including inferences concerning the nature of the document and its contents, without breaching the hearsay rule. However, a court drawing such an inference must be careful that it did not slide into the error by then assuming that the contents of the documents were true.

8.I have carefully considered the respective submissions and the authorities.  This case is quite different in nature from any of those cases cited to me.  To start with, there is no dispute that the passport belonged to the defendant and it is an admitted fact that it was her passport bearing her name, so the admissibility of the passport does not arise.

9.Once the passport is admitted as that of the defendant’s, all the contents are admissible, not as the truth of all the contents, but that those contents were there in the passport.

10.I do not accept that the defendant’s passport is a public document or that it would have been unreasonable or impractical for the prosecution to call those officials or someone from the relevant embassy to give evidence as to the truth of what those chops stated.  I therefore do not accept that section 22 of the Ordinance had been complied with.

11.In any event, that is not the issue before me. The prosecution has made it clear that it does not rely on the truth of what those chops stated, but that the form and contents of the defendant’s passport with those chops were such that an inference could be drawn that the defendant, as the passport holder, was the person who had proffered the passport when those chops were affixed, whether the contents of those chops were true or not.

12.Since the prosecution does not rely on these chops as part of the prosecution case, these chops had not been and will not be shown to the jury to avoid causing any prejudices to the defendant—in case the jury wrongly draw the inference that these chops alone would infer that the defendant was a drug‑courier.

13.However, should the defendant elects to give evidence and the prosecution wishes to cross-examine her on these chops that appear on her passport, those pages containing the said chops would then be shown to the jury.

14.I do not wish to say too much in relation to what the prosecution might or might not do should the defendant elects to give evidence.  Suffice it to say it is my ruling that the passport is already admitted as evidence.  I exercise my discretion to the effect that the said chops would not be shown to the jury during the prosecution case.  However, the whole passport is already admitted and depending on whether the defendant elects to give evidence and the relevance of the nature of the cross‑examination, the part of the passport containing those chops will be available without the prosecution having to either apply for that part of the passport to be made available, or to call rebuttal evidence.

Ms Audrey P Campbell‑Moffat, , counsel on fiat, for HKSAR

Mr Phillip Geoffrey Ross, instructed by Tse Yuen Ting Wong, assigned by the Director of Legal Aid, for the accused