HKSAR v. YIP WING FAT

HCCC 395/1993 & 28/1994
(Consolidated)

[2019] HKCFI 463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NOS 395OF 1993 AND 28 OF 1994

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REASONS FOR RULING

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Introduction

1. The defendant is charged with robbery. He pleaded not guilty 25 years ago and maintains that plea today. He was originally before Deputy Judge Cannon in a trial as the 5^th defendant of five Accused which began on 20 June 1994. He was on bail. The trial began with a voir dire for the 4^th and 5^th defendant which lasted 16 days. On a Friday, 8 July 1994 Cannon DJ ruled that both defendants’ records of interviews were made voluntarily and were admissible. On Monday, 11 July 1994 the 5^th defendant (hereinafter referred to as the defendant) absconded for 24 years; he surrendered himself to Wan Chai Police Station on 10 April 2018 accompanied by a solicitor. The other four defendants were either convicted after trial or pleaded guilty in 1994.

2. There were two applications identified and to be dealt with before the defendant’s trial continued. The prosecution had an application to rely on the ruling of Cannon DJ after hearing evidence in a voir dire which the defence opposed. The defence wanted to re-litigate the question of the admissibility of his record of interview.

3. The defence had an application to keep out of evidence the defendant’s flight from trial and the letter he wrote to the court to explain why he absconded. The prosecution opposed this application and submitted they were entitled to lead evidence of the defendant’s flight during his trial as supporting evidence of his guilt.

4. On 13 February 2019 I heard submissions and ruled the following day that the defendant’s record of interview is admitted into evidence according to the ruling of Cannon DJ after a voir dire. The defence will not be permitted to re-litigate its admissibility. I also ruled the evidence of flight was admissible and can be placed before a Jury. I gave brief reasons then and now give full reasons for my rulings.

Brief history

5. There were five defendants charged after a serious gold jewellery shop robbery where three robbers were armed with pistols and grenades. The robbers were unable to escape in their get-away vehicle and there was a shootout in a street in North Point. One robber died as a result of gunshot wounds and the other two were arrested at the scene. The 3^rd defendant was a getaway driver who was originally waiting for the robbers in that street; he was arrested not long after the others. This defendant was arrested several months later and he admitted introducing the 4^th defendant to another person for them to plan and commit this robbery; his reward was a fee of $50,000. He knew there was a robbery planned as a result of his introduction.

6. The defendant only faced a charge of robbery whilst some of the others faced firearm charges as well. The trial was set down on 20 June 1994. The 1^st to 3^rd defendant, those at the scene, pleaded guilty. There was a lengthy voir dire for the remaining two defendants. The prosecution called 13 witnesses whilst this defendant himself called four defence witnesses and elected to give evidence himself. He was legally represented during the voir dire. After his record of interview was admitted into evidence, the defendant absconded and failed to appear on the 17^th day of his trial. He wrote a letter to the court explaining his disappointment in the ruling because he was innocent. He expressed a lack of trust in the trial and the legal system; he would not get a fair hearing so he fled. He disappeared for 24 years.

7. At the case management hearing after the defendant surrendered, the issue of whether the voluntariness of his record of interview should be considered again and re-litigated arose. There is no new or fresh evidence which the defendant relies on.

8. It is not surprising to find in a court file 25 years old that the record of Cannon DJ made during the voir dire was by hand but her ruling of admissibility in relation to both defendants was typed up. There is also in the file typed objections to the admissibility of the defendant’s record of interview as well as a typed written submission by defence counsel made at the conclusion of the voir dire.  The prosecution tried to locate all original witnesses in the voir dire and out of 13, they can only locate one prosecution witness. That witness was the arresting officer of the defendant and the statement taker of the material record of interview.

9. The defendant maintains his plea of not guilty and therefore the trial will continue. The question is whether he gets a second bite of the cherry and has the question of the admissibility of his record of interview decided again.

Re-litigating the issue of admissibility

10. The law on this point is not satisfactory; there is a lack of clear authority. There are several scenarios where a defendant may be tried on more than one occasion for the same crime. For example; the defendant may have his conviction successfully quashed by the Court of Appeal, with an order that he be retried. A retrial may occur when a jury is discharged, thus making it necessary for a new trial to be held before a fresh jury.  After a trial has commenced and some evidence heard, it may become necessary for the indictment to be severed which means one or more defendants would then be tried separately before a different jury. In each of these scenarios the admissibility of a record of interview made by a defendant may have already been the subject of a voir dire.

11. The prosecution does not seek to suggest the doctrine of issue estoppel arises here. The House of Lords in DPP V Humphrys 1977 AC 1 rejected the application of the doctrine of issue estoppel to English criminal law. The prosecution submits the defendant has waived any right to another voir dire by deliberately absconding. There is no prejudice suffered and because the paramount consideration must always be the due administration of justice, it would be a travesty of justice if there was another voir dire. Even more so because the prosecution would be doomed to fail as they are now unable to locate almost all the witnesses that would be required for them to discharge their burden of proof. In this case the evidence is now 25 years old and understandably, witnesses are no longer available. Memory for both prosecution witnesses and even the defendant will be affected by the passage of time.

12. The prosecution uses the analogy of a case where a defendant absconds during a trial and the judge has to decide whether to exercise his discretion and continue with the trial in the defendant’s absence. In such a case, where a defendant deliberately absconds then he may waive his right to be present during his trial. It is submitted that similarly in this case where the defendant reappears years later, he has waived his right to have the admissibility of his admission re-litigated. He should have appealed that decision if he was ultimately convicted after trial and if he had been successful in that appeal but there was a retrial then he would be in a stronger position to argue for another voir dire.

13. Mr Duncan Percy for the prosecution relies on R v Jones (R E W) (No 2) [1972] 2 All ER 731 to support this analogy. That was a case where the judge exercised his discretion to continue a trial after the defendant had absconded. He quoted Roskill LJJ at page 736, last paragraph,

“To grant this application at this stage would, in the view of this court, be to put a premium on prisoners jumping bail; it may even have the effect of encouraging others to do so. It may also have as a side-effect, increasing the reluctance of a court in a very long trial to grant bail lest the applicant’s conduct be repeated by others. To put a premium on jumping bail is something which this court is not for one moment prepared to countenance. … The applicant has bought this entirely on his own head, and he must now take the consequences.”

That was an application to grant an extension of time to appeal after that defendant was extradited from Denmark after he absconded.

14. The view expressed by Roskill LJJ can equally be applied to the situation and the defendant here. The prosecution submits that if this court were to allow him to return and “have another go” at fighting the admissibility of his record of interview, it could have the effect of encouraging others to emulate the defendant. It could put a premium on jumping bail. Since the defendant has bought this entirely upon himself then, he must now accept the consequences of his actions. The decision to conduct another voir dire would be an affront to the due administration of justice. The prosecution would be highly prejudiced and hindered by the fact that relevant witnesses are no longer available and that witnesses who could again give evidence would be unlikely to have retained a clear recollection of important details.

15. What is also worthy of consideration is the fact that the defendant was represented during his voir dire by the late Mr. Kevin Egan leading Mr. Alex Ng. It was a thorough investigation into the admissibility with the evidence of many prosecution witnesses and five defence witnesses heard and considered. Two of the defence witnesses were family members whilst the other two were doctors who examined the defendant after his arrest. The presiding judge spent 16 days conducting the voir dire.

16. The defence relies on R v Chu To Chung [1995] 2 HKCLR 18.  In that case the accused was convicted by a jury of rape but that conviction was overturned by the Court of Appeal who ordered a retrial. The retrial was conducted before a different trial judge, Keith J (as he then was). He gave a ruling that, in the event of a retrial, an accused is entitled to have a voir dire held again in the retrial to determine the admissibility of an alleged confession. An exception may arise where the judge at the retrial is the same judge in the original trial.

17. Keith J cited the principle that a finding at the conclusion of the voir dire that the statements alleged to have been made by the defendant were made voluntarily and are therefore admissible in evidence, is a finding which the judge is entitled to re‑visit at any stage during that same trial. The judge can rule that statement to be inadmissible if, during the trial, a shift in the factual basis of the evidence causes him to have doubts as to the correctness of his previous ruling of admissibility, referring to R v Watson [1980] 1 WLR 991. If the judge at the second trial is not the same judge who presided over the first trial, he will not have seen and heard the evidence which cause the judge in the first trial to rule that the statements had been made voluntarily. Keith J observed that for this reason alone, a judge’s decision at the end of a voir dire is not a decision which has the characteristics of the kind of finality which would justify the invocation of the doctrine of abuse of process unless the judge in the subsequent trial was the same judge.

18. Keith J says that in addition the defendant would be entitled to have the whole question of voluntariness re-litigated if he was able to satisfy the court that there is new evidence which could not have been obtained with reasonable diligence for use at the first trial and would probably have had an important influence on the determination of the issue if it had been given in first trial and lastly, it has the appearance of credibility about it.

19. In that case Keith J was dealing with a conviction that was successfully appealed and a retrial ordered by the Court of Appeal. He found there to be no abuse of the process of the court. However, what distinguishes this defendant from that appellant is that these proceedings are not a retrial after a successful appeal. This issue has only arisen because the defendant absconded after and because of the voir dire. He did not challenge the voir dire the proper way; by way of an appeal if convicted.  In this scenario, is it an abuse of the court process to seek to raise the issue of admissibility again when the only reason for the delay and these subsequent proceedings is because the defendant absconded after the admissibility issue did not go his way? He is asking for a second bite of the cherry.

20. In Archbold Hong Kong 2019 at paras 15-78 and 15-79 the question of re‑litigating the issue of admissibility is discussed and there, the learned authors are of the view that the law on this point is not entirely satisfactory. There are references to several cases from Commonwealth jurisdictions. What they all have in common whether they held that the issue can be re‑litigated or not, is that none of those cases mentioned involve a defendant who has absconded during his trial after a voir dire.  The majority involve a retrial after a successful appeal.

21. In the English Court of Appeal case, R v Pervez and Khan [1983] Crim LR 108, a voir dire was held during the trial and that appellant’s statements were ruled admissible. Subsequent to that there was an application for severance which was granted. At the separate trial of two of the defendants the trial judge rejected the submission that he should consider afresh the question of admissibility of statements. The Court of Appeal held in that situation where the application to sever the indictment was not made until after the ruling on admissibility, the trial judge’s refusal to reconsider the question of admissibility at the subsequent separate trials was not irregular and did not cause prejudice to the defendants.

22. In that case and in this case the subsequent proceedings were not ordered by a higher court. Would my decision not to reconsider the question of admissibility cause prejudice to the defendant? The prosecution says the defendant’s actions of absconding whilst on bail for the sole reason he was unhappy with the voir dire ruling meant he has brought this upon himself and any prejudice must be assessed in these terms. By his actions and intentions, he has waived any right to demand a second opportunity to conduct a voir dire. When asked, the defence could not put forward what prejudice this defendant will suffer except to rely on Keith J’s ruling in Chu To Chung.

23. Can I distinguish Keith J’s case? It is difficult to envisage that Keith J had in mind a case such as the present where the question of a repeat voir dire arises because the defendant concerned had deliberately absconded due to his outrage of the voir dire ruling that went against him.  A voir dire that was thoroughly conducted and where the defendant was represented by experienced counsel leading junior counsel.

24. I am of the view that like a discretion to continue a trial in the absence of a defendant who has deliberately absented himself, it is a matter of my discretion whether or not to allow a second voir dire. Where it may be appropriate if there is a retrial but the situation is distinguishable here and I rule that he has forfeited or waived that right by absconding during his trial. I find in the need to ensure a due administration of justice that I can exercise my discretion not to conduct another voir dire.

The 2^nd application – the evidence of flight

25. The other question is whether the prosecution is entitled to lead evidence of the defendant’s decision to abscond from the first trial as supporting evidence of his guilt? The prosecution submits that the defendant’s flight at that time has a material bearing on the issue of his guilt. There is a close connection between his flight and the offence with which he was charged.

26. Counsel for the defendant argued that the prejudice caused to the defendant by the flight evidence and his letter far outweighed its probative value; the defendant could not get a fair trial if the flight evidence was placed before a jury. It was submitted the letter was prejudicial.  I agreed that it would be in its present form but once redacted that would no longer be the case. Editing the letter would ensure that the jury was not aware of the voir dire and its outcome. The jury would only be aware that the defendant absconded during the trial in 1994 because he felt he was facing an unfair trial and he had no confidence in the court.

27. In R v Chan Kwok Keung & Another [1990] 1 HKLR 359, the Privy Council, in the opinion delivered by Lord Ackner, said at page 363,

“In order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question.”

Once a clear nexus has been established then it is a matter that should be left for the jury.

28. The prosecution says there is sufficient nexus between the flight and the offence therefore, such evidence is admissible. The nexus is clear when one reads his letter and considers the fact that the only evidence against the defendant was his record of interview. There was originally going to be incriminating evidence against him from a co-accused, an accomplice which is no longer available now. The defendant would have had little chance of an acquittal with that evidence to come after the voir dire result. Clearly, it would have been tempting to flee. That accomplice gave evidence against the 4^th defendant who did not abscond. There will of course be a “flight” direction given to the jury.

Conclusion

29. After I carefully considered arguments and the written submissions, I ruled that the decision of Cannon DJ after the voir dire held stands and the prosecution can rely on that original decision. Even though I am not the original judge, there will be no rehearing conducted in another voir dire to determine the admissibility of the defendant’s record of interview again.

30. In addition, I ruled the prosecution is entitled to lead evidence of the defendant’s flight and absconding from the trial in 1994. The defendant’s letter will be redacted by agreement.