TANG YIU HONG, ERIC v. HKSAR

FAMC No. 90 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 90 OF 2005 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC No. 307 of 2002)

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.  The applicant was convicted before Beeson J and a jury on seven counts involving various aspects of a conspiracy with others to defraud a joint venture company by causing certain assets beneficially owned by it to be pledged to secure loans made to companies in which the applicant was interested.  The defence case was that the pledges were known to and approved by the joint venture partners.  The applicant’s appeal to the Court of Appeal (CACC 307/2002, Stuart-Moore Ag CJHC, Bokhary and McMahon JJ, 11 January 2005) was dismissed.

2.  The applicant now seeks leave to appeal to the Court on two grounds, both of which relate to a document admitted in evidence at the trial containing certain corporate rescue proposals (“the proposal document”).  It was detrimental to the defence case, since it suggested that the joint venture partners were unaware of and had not consented to the applicant’s acts complained of.

The best evidence rule

3.  The first ground is that the proposal document, being a copy document and not the original, was caught by the best evidence rule and ought to have been held inadmissible on the ground that it had not been shown that particular steps had been taken for obtaining the original.  It is sought to contend that leave should be granted on the substantial and grave injustice ground.

4.  For the application to succeed on this footing, it must be shown that admission of the document by the Judge involved such a substantial departure from established norms that it constitutes a substantial and grave injustice to the applicant.  The norms relied on in this context relate to the best evidence rule as formulated by the applicant.   

5.  Plainly, this application fails the test.  Far from the best evidence rule being an established norm which was obviously departed from, the very existence of that rule is much in doubt.  The applicant’s Notice of Application acknowledges this and refers to the rule in very tenuous terms:

 “The ‘best evidence’ rule has been much attenuated but it may still exist.  If it still exists it permits the use of copy documents in evidence but only after certain conditions have been satisfied regarding the non-production of the original documents.” (Italics supplied)

6.  Such reticence is not surprising.  Modern authority is strongly inclined against the survival of the rule.  Thus, in Garton v Hunter [1969] 2 QB 37 at 44, Lord Denning stated: “That old rule has gone by the board long ago ...... nowadays we do not confine ourselves to the best evidence.”  And in Masquerade Music Ltd v Springsteen [2001] EWCA Civ 563, referring to the rule, Jonathan Parker LJ stated: “...... the time has now come when it can be said with confidence that the best evidence rule, long on its deathbed, has finally expired.” 

7.  At the highest, it might be argued that the best evidence rule survives only in one instance.  This was formulated in 1982 by Ackner LJ in Kajala v Noble (1982) 75 Cr App R 149 at 152, as follows:

“The only remaining instance of [the rule] is that, if an original document is available in one’s hands, one must produce it; that one cannot give secondary evidence by producing a copy.”

8.  Having noted that the court “...... would be more than happy to say goodbye to the best evidence rule”, Lloyd LJ in R v Governor of Pentonville, Ex p Osman (DC) [1990] 1 WLR 277, stressed the narrowness of Ackner LJ’s proposition stating:

“What is meant by a party having a document available in his hands? We would say that it means a party who has the original of the document with him in court, or could have it in court without any difficulty. In such a case, if he refuses to produce the original and can give no reasonable explanation, the court would infer the worst. The copy should be excluded. If, in taking that view, we are cutting down still further what remains of the best evidence rule, we are content.”  (at 308)

9.  These authorities give no support for Mr Dykes’s suggestion that the rule, if it exists, requires evidence of a search having been made for the original. 

10.  On the evidence adduced in this case, the original of the document was not to hand and its precise location (thought to be in Beijing) was not known.  In fact, there was also evidence of inquiries having been made to locate the original, but without success.  Accordingly, even if the rule was thought to survive in some form, the failure to exclude the proposal document was not in the circumstances a departure from the norm.

11.  There is in addition a powerful reason for refusing now to entertain an appeal on the admissibility of the proposal document.   No objection on the ground of admissibility was raised either at the trial or in the Court of Appeal.  Indeed, a ground taking such objection was initially included in the applicant’s perfected grounds of appeal but consciously abandoned when new perfected grounds were substituted.  In the light of the views we have already expressed, such abandonment was appropriate.

The adequacy of the summing-up 

12.  The second ground for seeking leave to appeal is put in the following terms:

“If the [proposal document] was admissible, then the summing up was wholly inadequate because, contrary to the Court of Appeal’s view about how it came into evidence, it was necessary for the judge to have gone into some detail how this copy document had come before the court and how that might effect the jury’s assessment of the evidential value of that piece of evidence.”

13.  This ground was convincingly disposed of by the Court of Appeal, particularly bearing it in mind that the challenge to admissibility had been abandoned.  Quoting the relevant passage from the summing up at §35 of its judgment, the Court of Appeal concluded that the “judge’s handling of this topic was entirely even-handed” and that the grounds of criticism were without substance.  We agree.

14.  The application must therefore be dismissed.