HKSAR v. LEE CHI HUNG

HCCC411/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. HCCC 411 OF 1999

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RULING

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COURT: I am ready to deal with this point now and will do so.

2. This is a retrial following the discharge of the jury when the judge trying the original trial ruled that prejudicial material was inadvertently made known to the jury too extreme to be remedied by direction. During the first trial, the prosecution wanted to produce evidence of admissions whose admissibility was contested by the defence. In the course of the voir dire, the defence called a woman called Madam Chan Sau-lai who gave first-hand evidence of police conduct at or prior to the defendant's arrest. At the conclusion of the voir dire, the judge ruled the admissions inadmissible. At that trial, it was the intention of the defence to call the same witness, Madam Chan, to give precisely the same account before the jury on the general issue. She was summonsed for that purpose. In the event, the trial was terminated before that point was reached.

3. At the outset of this, the retrial, the prosecution indicated that it no longer wished to produce the alleged admissions so there has been no voir dire.

4. The trial has proceeded and has now reached the stage where the defendant's evidence has concluded. Now Mr Ross, representing the defendant, has informed me, in the absence of the jury, that the defence wishes to call Madam Chan to repeat the evidence that she first gave during the first trial. In anticipation, a fresh witness summons issued on 7 July, that is now 13 days ago. In fact, the defence could probably have relied on the summons they had issued for the first trial as that was not concluded.

5. Be that as it may, Madam Chan has apparently gone to ground. From the Bar table Mr Ross tells me that despite determined efforts by the defence team, they have not succeeded in serving Madam Chan with the second summons or otherwise making contact with her, and in particular, have not been able to get her to court. She appears not to be living at home and has cut off her mobile telephone. So it was that yesterday, in the absence of the jury, Mr Ross proposed an alternative course in applying to have a transcript of her evidence during the voir dire in the first trial read to the jury as evidence of what she said.

6. Miss Ko, for the prosecution, apart from opposing the application on the grounds that to take such course would be to deprive her of the opportunity to cross-examine the witness before this jury, does not accept, without evidence, that all has been done that could have been done to trace the witness and get her or compel her to come to court. Accepting, as I do, that the prosecution is entitled to put the defence to the proof of that, I have decided to rule on the point of law first and then, if I rule in favour of the defence application, call for evidence on the adequacy of the steps taken.

7. In my view, my jurisdiction to deal with the application derives from section 22 of the Evidence Ordinance, Cap.8. The pertinent provisions of that section state, 22(1):

"Subject to this section and section 22B, a statement contained in a document shall be admitted in any criminal proceedings as prima facie evidence of any fact stated therein if -

(a) direct oral evidence of that fact would be admissible in those proceedings; and

(b) the document is or forms part of a record compiled by a person acting under a duty from information supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information; and

(c) the person who supplied the information, inter alia, ..."

8. And I go to Roman (iv):

"(iv) his identity being known, cannot be found and all reasonable steps have been taken to find him."

9. Subsection (2):

"A statement made in connection with any criminal proceedings or with any investigation relating or leading to any criminal proceedings shall not be admissible under this section."

10. There is plenty more to section 22, but nothing more, I believe, that is pertinent to these circumstances and Mr Ross' application.

11. The Court of Appeal in the United Kingdom in the case of R. v. Lockley and Corah [1995] 2 Cr. App.R. 554, was required to consider the point. The judge of first instance in a re-trial ruled he could not admit a transcript of evidence taken at the first trial from a witness who had since disappeared under statute, but that he could at common law.

12. The Court of Appeal found that the transcript was admissible under section 23 of the Criminal Justice Act 1988 and the judge should have considered the exercise of a discretion available to him under that Act. The Evidence Ordinance in Hong Kong is differently worded, and in particular, as far as I am aware, there is no discretion to exclude, at least not statutorily. But the pertinent features of section 23 by which the Court of Appeal said the judge should have been bound states, and I quote from Lockley and Corah:

"... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if...all reasonable steps have been taken to find the person who made the statement, but that he cannot be found."

13. I find that matches in meaning and purport our section 22, save that in our section 22, the words are:

" ... shall be admitted ..."

14. Not:

"... shall be admissible ..."

15. Which would seem to remove a discretionary right to exclude.

16. Section 22(2) of the Evidence Ordinance might at first blush be seen to exclude a transcript. This is a point taken by Miss Ko, and support for that view is found in Lockley and Corah. The court in that case considered similar wording in section 26 of the Criminal Justice Act, which section requires leave of the court and places other restrictions on the use of a statement admissible under section 23 of the Criminal Justice Act.

17. But the editors of Archbold 2000 at paragraph 10-57 were critical of this. There it is said, and I quote from the text:

"The conclusion that section 26 applies is questionable; it involves a finding that a transcript is a statement 'prepared for the purposes of pending or contemplated criminal proceedings or a criminal investigation.' It is submitted: (a) that this language is entirely inappropriate to a transcript; and (b) a transcript is plainly outside the mischief at which section 26 was aimed. That mischief was the possibility that a party in the course of preparation for proceedings might fashion the evidence to suit his own cause. Parliament could never have intended a transcript to come within this section: see the explanation of the common law rule in Hall. The most important considerations are, of course, that the transcript is evidence on oath with the opportunity for cross-examination: the common law rule depended on the parties being the same, the cause being the same, or substantially the same, and there being opportunity to object to the competency of the witness, to cross-examine him and to contradict him by other evidence. The judgment in Lockley and Corah leads to the bizarre result that the admissibility of a transcript in a retrial ordered under the 1968 Act is not subject to section 26, whereas at a retrial ordered in other circumstances, it is. Neither Hall nor Thompson are referred to in the judgment of the court, although apparently referred to in argument; it is submitted that the decision should be treated as having been made per incuriam."

18. I agree.

19. In the circumstances, I believe I should grant Mr Ross' application whilst being mindful of directing the jury on the issue of weight. In this regard, I am committed to the terms of section 22B of the ordinance the pertinent parts of which are subsection (1):

"Where in any criminal proceedings a statement contained in the document is admissible in evidence by virtue of section 22 or 22A, it may be proved by the production of that document or whether or not that document is still in existence by the production of a copy of that document or of the material part thereof."

20. Subsection (2):

"Where in any criminal proceedings a statement contained in a document is admitted in evidence by virtue of section 22 or 22A, the court may draw any reasonable inference from the circumstances in which the statement was made or otherwise came into being or from any other circumstances, including the form and contents of the document in which the statement is contained."

21. Subsection (3):

"In estimating the weight, if any, to be attached to a statement admitted in evidence by virtue of section 22 or 22A, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and in particular,

(a) in the case of a statement falling within section 22 to the question of whether or not the person who supplied the information from which the record containing the statement was compiled did so contemporaneously with the occurrence or existence of the facts dealt with in that information and to the question of whether or not that person or any person concerned with compiling or keeping the record contained in the statement had any incentive to conceal or misrepresent the facts."

22. In the circumstances, then, I allow the application and now invite you, Mr Ross, to call evidence to establish whether or not all reasonable steps have been taken to find Madam Chan.

Court adjourns - 11.05 am

20 July 2000