HKSAR v. KHALID MANSOOR AND ANOTHER

CACC 381/2017

[2020] HKCA 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 381 OF 2017

(ON APPEAL FROM DCCC NO 1084 OF 2016)

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R E A S O N S   F O R   J U D G M E N T

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

Introduction

1.  With leave of this Court,[1] the appellants appealed against their convictions after trial before Deputy Judge A Yim for the offence of assisting the passage within Hong Kong of unauthorised entrants, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap 115.  They had been jointly charged with another defendant, D2 at trial, who pleaded guilty to the offence. The 1^st appellant and 2^nd appellant, D1 and D3 respectively at trial, pleaded not guilty to the offence.  We will refer to them by their trial designations in this judgment.

2.  In presiding over the proceedings, the judge combined the trial of D1 and D3 with the Newton hearing of D2, who had contested certain factual matters contained in the Summary of Facts that were presented by the prosecution when D2 pleaded guilty.  Leave was granted to D1 and D3 to appeal against their convictions on the sole ground as to whether it was permissible for the judge to conduct the trial of D1 and D3 together with the Newton hearing of D2, and whether the evidence of the Newton hearing was admissible in the trial of D1 and D3.

3.  At the conclusion of the hearing, we allowed the appeal of D1 and D3, quashed their convictions and made no order for a retrial.  We said we would hand down our reasons in due course, which we now do. 

The proceedings at trial

4.  On 10 August 2017, D2 pleaded guilty to the offence, but disputed certain factual matters alleged against him, particularly the allegation that he was “the central organiser” of the offence.  In order to resolve the issue, the judge directed that a Newton hearing be held.  D1 and D3 pleaded not guilty to the offence and proceeded to trial.  The Newton hearing was heard together with the trial of D1 and D3 without objection from the parties.

5.  On 30 October 2017, the judge found that D1 and D3 were guilty of the offence, and that D2 was the central organiser in receiving the unauthorised entrants in Hong Kong. 

6.  On 15 November 2017, the judge sentenced D1, D2 and D3 to terms of imprisonment of 32 months, 43 months and 32 months respectively.

The application for leave to appeal

7.  In accordance with the leave judgment of this Court, the two appellants filed essentially the same ground of appeal against conviction in which they complained that the judge erred in law by conducting the Newton hearing of a co-defendant as part of and within the trial of the appellants, and then using the evidence and findings in the Newton hearing against the appellants.  They submitted that this amounted to a material irregularity in the course of the trial which rendered their convictions unsafe and unsatisfactory. 

The proceedings before the judge

8.  The circumstances in which the judge found herself were unusual.  The prosecution and the three defendants were represented by experienced trial counsel who did not object to combining the proceedings.[2]

9.  The prosecution presented its case against the defendants, addressing the guilt of D1 and D3 and the role of D2 in relation to the offence it was alleged that they had jointly committed.  However, the case proceeded as if the three defendants stood as three defendants at trial with each being separately represented by counsel throughout the proceedings.

10.  The prosecution presented the evidence of its witnesses who in turn were available for cross-examination by counsel for each of the three defendants.  After the prosecution case had been presented, the three defendants presented their respective cases with each of them giving evidence.  D1 also called a witness in his defence.  D2 was not formally called as a witness as part of the case of either D1 or D3, although they both seemed to rely on D2’s evidence.  When each of the three defendants presented their respective cases, they were subject to cross-examination by prosecution counsel and counsel for the other two defendants.

11.  It was an extraordinary turn of events that during the trial proceedings of D1 and D3, Mr McGowan, who was representing D2, was permitted to cross-examine the prosecution and defence witnesses, including D1 and D3.  D1 and D3’s video-recorded interviews were in evidence, as was also D2’s video-recorded interview and the contested Summary of Facts. 

12.  Whilst the judge reminded herself that she had to consider the case against each defendant separately, there was no acknowledgement by her that she was dealing with two separate proceedings, nor was there a clear demarcation in her consideration of the evidence between the two proceedings.  A critical issue in this appeal therefore was whether the judge improperly combined the two proceedings and impermissibly took into account evidence that was not part of the trial of D1 and D3. 

The cases at trial

13.  The prosecution case was that on 14 August 2016 the three defendants travelled by taxi from Nai Wai, Tuen Mun to Nim Wan Landfill (the Landfill) to pick up three unauthorised entrants and then convey them back to Nai Wai.  As the taxi was about to leave, police officers arrested the group of men.  The call and text message records of the mobile telephones seized from the men revealed that D2 was the principal organiser of a syndicate to receive the unauthorised entrants upon their arrival in Hong Kong by boat.  A subsequent sweep of the area by the police located six other men, four of whom were Nepalese and the other two Pakistani.

14.  The defence case was that the three defendants were friends who were to celebrate, together with others, Pakistan National Day on 14 August 2016.  D2 was responsible to cook the food for the event.  While he was preparing the food, he received a telephone call to meet up with friends and asked D1 and D3 to accompany him.  They took a taxi to the Landfill where D2 alighted from the taxi with D1 following him.  D2 intended to pick up his brother whom he had arranged to come into Hong Kong illegally.  However, he did not expect the other two unauthorised entrants to be there.  He only helped the other two at the request of his brother after they had landed.  As the taxi could only take four passengers, D2 asked D1 to convey the three unauthorised entrants to his home and he would arrange a separate taxi for himself and D3.  D1 and D3 had no knowledge of the status of the three unauthorised entrants.

The judge’s reasons for verdict

15.  The judge in her reasons for verdict noted that the defendants had been jointly charged with the offence of assisting the passage within Hong Kong of unauthorised entrants.  As part of her introduction, she noted:

“2. D1 and D3 pleaded not guilty while D2 pleaded guilty but disputed the facts that he was the central organizer of the offence. Conviction of D2 was entered upon his plea and admission of the facts that supported the charge. As the facts in dispute had a potentially significant effect on the level of sentence, a Newton hearing was directed. Further because the evidence concerned was inter-related to the case against the co-defendants, the Newton hearing was directed to be heard together with the trial of D1 and D3. Parties raised no objection that the Newton hearing be heard, together with the trial at the same time.” (Emphasis added)

16.  It was argued by the appellants that from the judge’s italicised remarks, she considered that evidence presented in the Newton hearing was connected to the case against D1 and D3 and therefore formed part of their trial.

17.  The judge gave a brief outline of the prosecution and defence cases.  She then identified the matters in dispute and explained how she would approach making her findings, emphasising that the case of “each defendant should be considered separately.” 

18.  She summarised the evidence by first providing a background to the case and describing what had happened on the day in question.  She stated that at around 3 am on 14 August 2016, the Hong Kong Marine Police picked up on its radar a suspicious object entering Hong Kong waters.  This was later confirmed to be a vessel that had brought to Hong Kong three unauthorised entrants who landed at Nim Wan at 3:17 am. Shortly before 8 am, the three defendants boarded a taxi at Nai Wai bus stop. 

19.  An overview of the taxi driver’s evidence was set out by the judge.  He said that during the journey, he was handed a mobile telephone and the caller instructed him to go to the Landfill.  When they got to the destination, D1 and D2 alighted from the taxi and went to the guard post near the entrance of the Landfill.  They appeared to be looking for something.  D3, who remained in the taxi, gestured the taxi driver to go over to where the other two were located.  The taxi driver did as instructed.  The taxi driver saw D1 and D2 climbing up from a ditch with several people following them.  The three unauthorised entrants got into the taxi with D1, whilst D2 and D3 remained behind. 

20.  As the taxi was about to leave, it was stopped by police and the defendants and the three unauthorised entrants were arrested.  The police seized the mobile telephones of the defendants and the unauthorised entrants.

21.  The judge accepted the evidence of the taxi driver while she rejected the evidence of the defendants. She referred to a discrepancy between the evidence of “all the defendants” and the taxi driver in relation to whether D1 alighted from the taxi after D2, which she resolved in favour of the taxi driver’s evidence.

22.  The judge went on to address the issue of joint enterprise, during the course of which she said:

“29. The three defendants and the three UEs were seen talking at the scene in their own language. During the video interview, all the defendants gave a similar explanation for their presence at the scene. They boarded the taxi at Nai Wai, went over to the place of arrest to meet a friend and D1 was paying the taxi fare when the three UEs boarded the taxi. They did not know the three UEs. D2 explained he did not tell the police he was there to pick up his brother because he was scared as he had never committed any crime before.

30.   All of the defendants, however, gave evidence that they intended to take the same taxi back to Nai Wai, and no payment was tendered before their arrest.  When D1 and D2 were shown their respective answers about ‘D1 was paying the taxi fare’, they invariably replied they did not remember what they had said at that time.  The fiat counsel did not put similar question to D3 again.  It could not be mere coincidence that the 3 defendants gave the same false account of the event in their respective interview, I consider they had concocted together in order to distance themselves from the 3 UEs found with them at the scene.  According to D1 and D3 they did not know the illegal status of the 3 UEs, D2’s brother was only introduced to them at the police station in the case of D3 and at Lai Chi Kwok in the case of D1.  Why would D1 and D3 want to concoct together with D2?”

23.  It was argued by the appellants that the judge used the evidence of D2 presented in the Newton hearing to decide the credibility of D1 and D3.

24.  The judge then addressed the evidence of the defence witness and D1 and D3 as well as D2 in turn.  The defence witness testified about the National Day party arranged by the defendants on 14 August 2016 which she rejected because of certain inconsistencies in his account of the events on that day.  She described the evidence of D1 and D3 as to their account of what happened on the day, which she rejected.  She said:

“37. According to the defence case, the party celebrating the National Day was held in D1’s home, D3 was one of the organizer while D2 was the chef, they have collected $4,000 from the friends and they were yet to complete the preparation of the party food. They took the party as an important event and started to do preparation early in the morning. D1 and D3 gave evidence respectively that in the course of the preparation they were only told by D2 to meet friend(s) at Tuen Mum, they were not told why they were required to go and the identity of the friend(s). Both D1 and D3 said they did not know, they did not ask for the reasons and they just went with D2. They may not be provided with an answer but I find it unbelievable that they did not even ask in the circumstances they alleged.

38.   It is noted that the scene was in a remote area, one would not normally expect to find another taxi, it would be difficult for D2 to keep the taxi and looked for the 3 UEs at the same time on his own.  D1 gave evidence that during the journey he was sitting at the back with D2 in the taxi.  D3 gave evidence that he was sitting in the front passenger seat.  D2 gave evidence that he instructed the driver went to the Landfill with the assistance of a Nepalese over the phone.”

25.  The judge described in detail D2’s account of what happened on that day by reference to the accounts given by D1 and D3.  She posed a number of rhetorical questions which she answered by finding that all three defendants worked together to pick up the unauthorised entrants.  In the course of doing so, she said:

“45. The evidence of the defendants suggested that D2 was responsible for the cooking of the party due to be commenced at 11:00 am that morning and D2 was yet to purchase the meat for the cooking and the money for the purchase was with D2. Why would D1 and D3 agree instead of having D2 return first, he was left behind at a remote area where it was difficult to get another taxi and the mobile phone services connection was not go. When being asked how was he to arrange another taxi back, he said did not think of this matter at the time. I considered and find none of the defendants was an honest witness, I reject their respective evidence that D1 and D3 did not know the purpose to go to the Landfill and did not know the illegal status of the 3UEs.

46.  According to Mr Leung’s evidence, all the three defendants worked together, on arrival D1 and D2 alighted and walked over to the guard post as if they were looking for something later turned out to be the 3 UEs named in the charge, while D3 was there to keep the taxi waiting.  I considered the evidence as a whole and find the only irresistible inference is that D1 and D3 each had full knowledge that they were to pick up UEs together with D2 when they hired Mr. Leung’s taxi.”

26.  At this point, it would appear that the judge, having rejected the evidence of the three defendants, found that D1 and D3 had full knowledge that they would pick up the unauthorised entrants together with D2 when they hired the taxi.  It was argued by the appellants that from the judge’s analysis of the evidence, she relied on the evidence of D2 in deciding the case of D1 and D3, particularly as to their credibility.

27.  The judge went on to address in considerable detail the role of D2, by focusing primarily on his telephone calls and text messages with others involved in the offence.  Whilst the judge considered the evidence of D2 separately from the case of D1 and D3, it was contended by the appellants that when she was discussing joint enterprise by reference to the evidence of D1 and D3 together with the evidence of D2, she was taking into account the evidence of D2 when evaluating the case against D1 and D3.

28.  After reviewing the evidence of D2, the judge rejected his explanation that he was only arranging for his brother to enter Hong Kong and not others.  She extensively analysed the records of the mobile telephones of the participants, which revealed that D2 had a series of messages with others concerning the payments and arrangements for the transportation and arrival of the unauthorised entrants to Hong Kong in the morning of 14 August 2016.  The records also revealed a large volume of calls and text messages between the defendants leading up to the events on 14 August 2016, as well as contact between one of the unauthorised entrants and D2 and D3, and another unauthorised entrant and D2.  She concluded that D2 was the one who took care of things at the Hong Kong end to bring the unauthorised entrants into Hong Kong, and that D1 and D3 took instructions from D2.

29.  As explained by the judge, the evidence against the defendants was compelling, based mainly on the evidence of the taxi driver and the conduct of the defendants at the Landfill. The call and text message records of D2’s mobile phone revealed that he played a central role in arranging the entry of the unauthorised entrants in Hong Kong. She disbelieved the defendants had gathered to celebrate Pakistan National Day because of inconsistent evidence as to the venue of the event, and rejected the explanation of D1 and D3 for going to the Landfill, which was in a remote area. 

Discussion

30.  It is argued by the appellants that the judge wrongly allowed a non-party, D2, to participate and give evidence at the trial of D1 and D3; gave D2’s counsel right of audience when he had no such right; and allowed in evidence matters which were inadmissible, including the evidence of the video-recorded interview of D2 and matters that had been elicited in cross-examination of D1 and D3 by D2’s counsel.

31.  It was conceded by Mr Derek Wong, for the respondent, citing KK v Director of Public Prosecutions [2016] 4 WLR 162, that as a fundamental principle the evidence of a co-defendant in a Newton hearing is not admissible in the trial of another defendant.  He also cited cases where it has been held that the usual practice is that a Newton hearing of a co-defendant who has pleaded guilty, should follow after the conclusion of the trial of the defendant who has pleaded not guilty, although there may be circumstances where this might not be appropriate: R v Smith (Patrick) (1988) 87 Cr App R 393; R v Stephen Dudley [2012] 2 Cr App R (S) 15; and R v Marsh [2018] 2 Cr App R (S) 28.

32.  The appellants point out that nowhere in her reasons for verdict did the judge give herself a clear direction to the effect that the evidence of D2 was not admissible against D1 and D3.  Instead, her direction that the case of each defendant “should be considered separately”, following her remarks that “all the evidence should be considered as a whole in the light of the defence case and the defence submission”, suggested that when determining the case of each defendant, all the evidence, without differentiation, should be considered.  It is not clear whether the judge went so far as to consider all the evidence before her in relation to each case against the three defendants; in the case of D1 and D3 to determine whether or not they were guilty of the offence, and in the case of D2 whether he was the central organiser of the offence.

33.  However, in the judge’s reasons for verdict there were occasions when she took into account the evidence of all three defendants, either by general comment or specific reference in relation to an issue under consideration. 

34.  An example of the judge considering the evidence of all the defendants on a specific issue was when she assessed the evidence of the taxi driver as to who left the taxi and in what sequence.  She said: “All the defendants gave evidence that D1 got out from the taxi one minute after D2.”; “There was, however, no mention of any climbing from the ditch by the defendants.”; “I considered and rejected the defendants’ evidence that D1 only went up to D2 after one minute.”[3] 

35.  Another example was when the judge, addressing the issue of joint enterprise, made a finding that each defendant gave a false account in their respective video-recorded interviews which was a concoction between them.  She said: “During the video-recorded interviews, all the defendants gave a similar explanation for their presence at the scene.”; “All of the defendants, however, gave evidence that they intended to take the same taxi back to Nai Wai, and no payment was tendered before their arrest.”; “It could not be mere coincidence that the 3 defendants gave the same false account of the event in their respective interview, I consider they had concocted together in order to distance themselves from the 3 UEs found with them at the scene.”[4]

36.  A final example was when, in summarising the evidence of D2, the judge would on occasion compare D2’s evidence with that of D1 and D3.  At the conclusion of her review and analysis of the evidence, she found that none of the defendants were honest witnesses and, on consideration of “the evidence as a whole”, the only irresistible inference was that D1 and D3 had full knowledge that they were collecting unauthorised entrants together with D2.[5] 

37.  In our accusatorial system, the prosecution must prove its allegations against an accused by an adversarial process before a tribunal of fact.  In this sense, a trial of an accused is conducted in the manner of a contest between the prosecution and the accused, who are bound by an intricate set of rules and laws in relation to procedure and evidence in order to ensure that the accused has a fair trial. Our law does, however, allow for the joint trial of more than one defendant but in order to ensure that each receives a fair trial the tribunal of fact must separate out the evidence that is relevant to, and admissible against, each accused, in accordance with the law of evidence, and consider only that evidence in rendering its verdict.  In this way each accused who is party to a joint trial will receive a fair trial.

38.  It therefore follows that upon a co-accused pleading guilty, that co-accused no longer has any role in the joint trial. Nor does counsel for that co-accused have a right of audience in the trial of another accused who has pleaded not guilty.

39.  In the present case, D2, having pleaded guilty, could only be a witness in the trial of D1 and D3 if he had been called as a witness by a party to that trial.  It was not realistic for the prosecution to call D2 as a witness because he was contesting certain factual allegations in the Summary of Facts on which he pleaded guilty by way of a Newton hearing.  In any event, the very purpose of the Newton hearing was for D2 to assert and for the prosecution to challenge his evidence on the particular point in issue.  On the other hand, D1 or D3 in their joint trial could have called D2 as a witness for the defence, but chose not to do so.  It was therefore wrong in principle for D2 to participate as a non-party in the trial of D1 and D3, by giving evidence and having his counsel present evidence and cross-examine witnesses.

40.  In the context of the trial of D1 and D3, we find the evidence of D2 was inadmissible and had been wrongly misused against them by the judge which rendered their convictions unsafe.  It was also improper for D2’s counsel to cross-examine D1 and D3, although we note that the matters elicited from them by D2’s counsel were generally favourable to them as they were running a united defence. 

41.  The combining of the trial of D1 and D3 with the Newton hearing of D2, was a material irregularity.  To conflate an accusatory adversarial trial with a mitigatory sentencing hearing is to undermine two conceptually separate and distinct judicial proceedings.  In so doing, the basic tenets of our adversarial system of justice were seriously breached in the conduct of the trial of D1 and D3.  We were, therefore, of the view that this was not an appropriate case to invoke the proviso. 

42.  The importance of the integrity of the trial process in our adversarial system cannot be overstated and it must be maintained at all times by adherence to proper procedures and legal principles. Trying to combine it with a sentencing hearing for administrative efficiency or to meet the convenience of the parties, will only put at risk that crucial integrity of the process.  Unfortunately, this risk became actual in this case by the judge having regard in the trial to evidence which was only admissible on the Newton hearing and to allow counsel for the defendant in the Newton hearing to participate in the trial  This was a substantial departure from the accepted norms and practices of a criminal trial.

Conclusion

43.  For the foregoing reasons, we allowed the appeals and quashed the convictions.  As the appellants had served the sentences passed on them for this offence, we made no order for retrial.